Arnold v. Eastern Air Lines, Inc.

• Decision Date: 08 July 1983
• Docket Number: Nos. 80-1245,s. 80-1245
• Citation: 712 F.2d 899
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: Richard ARNOLD, IV, Appellee, v. EASTERN AIR LINES, INC., Appellant, v. UNITED STATES of America, Appellee. Francis C. MIHALEK, Appellee, v. EASTERN AIR LINES, INC., Appellant, v. UNITED STATES of America, Appellee. Helen Rae WESTON, as Executrix of the Estate of Lewis M. Weston, deceased, Appellee, v. EASTERN AIR LINES, INC., Appellant. The AETNA CASUALTY AND SURETY COMPANY; Aetna Insurance Company; American Empire Insurance Company; Commercial Union Insurance Company; Compagnies D'Assurances Du Groupe; Concorde; Continental Casualty Company; Employers Mutual Liability Insurance Company of Wisconsin; Hartford Fire Insurance Company; Industrial Indemnity Company; Maryland Casualty Company; Reliance Insurance Company; Royal Indemnity Company; St. Paul Fire and Marine Insurance Company; Security Insurance Company of Hartford; The Travelers Indemnity Company; Underwriters at Lloyd's and Associated British Insurance Companies; United States Fidelity and Guaranty Company; United States Fire Insurance Company; Zurich Insurance Company, Appellants, v. UNITED STATES OF AMERICA; Bernard C. Groseclose; Alden E. Hare; William L. Hogan; Dennis L. Hunter, Appellees. to 80-1247 and 80-1334.

Page 899

712 F.2d 899

Richard ARNOLD, IV, Appellee, v. EASTERN AIR LINES, INC., Appellant, v. UNITED STATES of America, Appellee.

Francis C. MIHALEK, Appellee, v. EASTERN AIR LINES, INC., Appellant, v. UNITED STATES of America, Appellee.

Helen Rae WESTON, as Executrix of the Estate of Lewis M.

Weston, deceased, Appellee, v. EASTERN AIR LINES, INC., Appellant.

The AETNA CASUALTY AND SURETY COMPANY; Aetna Insurance

Company; American Empire Insurance Company; Commercial

Union Insurance Company; Compagnies D'Assurances Du Groupe;

Concorde; Continental Casualty Company; Employers Mutual

Liability Insurance Company of Wisconsin; Hartford Fire

Insurance Company; Industrial Indemnity Company; Maryland

Casualty Company; Reliance Insurance Company; Royal

Indemnity Company; St. Paul Fire and Marine Insurance

Company; Security Insurance Company of Hartford; The

Travelers Indemnity Company; Underwriters at Lloyd's and

Associated British Insurance Companies; United States

Fidelity and Guaranty Company; United States Fire Insurance

Company; Zurich Insurance Company, Appellants, v. UNITED STATES OF AMERICA; Bernard C. Groseclose; Alden E.

Hare; William L. Hogan; Dennis L. Hunter, Appellees.

Nos. 80-1245 to 80-1247 and 80-1334.

United States Court of Appeals,

Fourth Circuit.

Argued Feb. 8, 1983.

Decided July 8, 1983.

H. Grady Barnhill, Jr., Winston Salem, N.C. (William C. Raper, Womble, Carlyle, Sandridge & Rice, Winston Salem, N.C., Richard M. Sharp, Frederick C. Schafrick, Christopher J. Wright, Shea & Gardner, Washington, D.C., on brief), for appellant.

Bruce N. Bagni, Torts Branch, Civ. Div., Dept. of Justice, Washington, D.C. (J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., Harold M. Edwards, U.S. Atty., Asheville, N.C., on brief), and Gary S. Hemric, Charlotte, N.C. (William K. Diehl, Jr., James, McElroy & Diehl, P.A., Charlotte, N.C., Robert R. Smiley, III, Smiley, Murphy, Olson & Gilman, Washington, D.C., on brief), for appellees.

Before WINTER, Chief Judge, and RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, CHAPMAN, Circuit Judges, and BRYAN, Senior Circuit Judge, sitting en banc.

PER CURIAM:

By way of summary the Court states its conclusions on the issues considered at the en banc rehearing which took place on February 8, 1983:

1. The vote of five members for, four against, and one member disqualified, and hence not voting, which had previously taken place, constituted a determination by a majority of the circuit judges who are in regular active service ordering rehearing en banc.

On that issue, the vote was six (Chief Judge Winter, Judge Russell, Judge Hall, Judge Murnaghan, Judge Sprouse, and Judge Chapman) for and two (Judge Widener and Judge Phillips) against.

2. The judgments of the district court in the Arnold and Mihalek ¹ personal injury actions against Eastern are reversed and remanded for retrial on the issue of the proper amounts of compensatory damages.

On that issue, the vote was five (Chief Judge Winter, Judge Russell, Judge Widener, Judge Murnaghan and Judge Chapman) for and four (Judge Hall, Judge Phillips, Judge Sprouse and Judge Bryan) against.

It should be noted that Judge Ervin was disqualified and therefore did not participate in any of the proceedings in the case. Furthermore, Judge Bryan, as a Senior Circuit Judge who sat as a member of the three-judge panel, took part in the consideration as to issue 2, pursuant to 28 U.S.C. § 46(c). Judge Bryan, there being no statutory authorization for him to do so, did not take part in the consideration as to issue 1.

The several opinions of Judges Widener, Hall, Phillips and Murnaghan which follow are devoted to the various rationales which prompted the votes of the several members of the Court.

MURNAGHAN, Circuit Judge:

In the United States District Court for the Western District of North Carolina, there were consolidated for trial several actions arising as a consequence of an Eastern Air Lines airplane crash at Charlotte, North Carolina on September 11, 1974:

1) Three personal injury actions against Eastern.

2) An action for indemnification or contribution by insurance carriers of Eastern against the United States and four air traffic controllers.

3) Third party claims against the United States for contribution filed by Eastern in two of the accident cases.

The panel of the Fourth Circuit which heard the appeal affirmed judgments on behalf of the plaintiffs in two of the accident cases, reversed and remanded the third for a new trial on the issue of compensatory damages and affirmed judgments in favor of the United States and the air traffic controllers. Arnold v. Eastern Airlines, Inc., 681 F.2d 186 (4th Cir.1982). There was a dissent at the panel level limited to the affirmance of awards for plaintiffs in the two accident cases. Id. at 206.

The case is now before the Court as a consequence of Eastern's request for rehearing en banc, contesting the judgments for the two accident case plaintiffs.

As a matter preliminary to consideration of the issues on the merits, we have to decide whether the case has in fact achieved the status of one entitled to en banc rehearing. The Federal Rules of Appellate Procedure in Rule 35 provide that a "majority of the circuit judges who are in regular active service may order that an appeal ... be ... reheard by the court of appeals in banc."

At the time of voting on the suggestion for en banc rehearing there were ten individuals occupying positions with the court satisfying description as circuit judges in regular active service. When the poll was taken, one court member, Judge Ervin, recused himself, did not vote, and has since that time remained disqualified. Of the nine remaining circuit judges in regular active service five (Chief Judge Winter, Judge Russell, Judge Widener, Judge Murnaghan and Judge Chapman) voted in favor of rehearing en banc; four circuit judges in regular active service (Judge Butzner, Judge Hall, Judge Phillips and Judge Sprouse) voted to deny rehearing en banc.

The court tentatively determined that the case had achieved en banc rehearing status, and now, following consideration of arguments from counsel, confirms that tentative determination. Joining the author of this opinion in that conclusion are Chief Judge Winter, Judge Russell, Judge Hall, Judge Sprouse and Judge Chapman. Judge Widener and Judge Phillips are of the contrary view and would hold that the vote on the suggestion of an en banc rehearing failed for want of a majority of the circuit judges in regular active service. Five, Judge Widener and Judge Phillips contend, do not constitute a majority of ten. ¹

At the outset, it should be observed that the majority's decision has been taken for the purposes of the present case. It is, of course, entitled to the precedential weight attaching to any decision of the court. However, in Shenker v. Baltimore & Ohio R. Co., 374 U.S. 1, 4-5, 83 S.Ct. 1667, 1670-1671, 10 L.Ed.2d 709 (1963), there appears a suggestion that the area may well be one in which achieving fulfillment of our administrative responsibilities would allow us by rule to select, as a quorum for purposes of ascertaining a majority, when votes on suggestions for hearings or rehearings en banc are taken, either (a) all judges in regular active service, including those disqualified for the purposes of the particular case or (b) all judges otherwise in regular active service who are not, for the purposes of the particular case, disqualified from participating in any way. ² Accordingly, we do not, by our decision today preclude a possible change in practice, brought about by adoption of a rule of general applicability. The en banc power ... is ... a necessary and useful power--indeed too useful that we should ever permit a court to ignore the possibilities of its use in cases where its use might be appropriate.

                Nor, of course, do we have occasion to determine whether applicable statutory language would permit or forbid such a change in practice.   The uncertainties are not minimized by the Supreme Court's observation in  Western Pacific Rr. Corp. v. Western Pacific Rr. Co., 345 U.S. 247, 260, 73 S.Ct. 656, 662, 97 L.Ed. 986 (1953)
                

We now have no general rule, and must decide without the benefit of such a generally promulgated guide to practice, ³ the proper result in the case sub judice.

We find the answer primarily in the language of the applicable statute. 28 U.S.C. § 46(c):

Cases and controversies shall be heard and determined by a court or panel of not more than three judges, unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in regular active service. A court in banc shall consist of all circuit judges in regular active service.... ⁴

Concentrating on the second sentence of § 46(c), we perceive insoluble difficulties in any other reading of the statute, at least in its present posture, without any contrary indication from a rule or regulation, than that there shall be excluded, for quorum ascertainment purposes, any disqualified judge when a vote on a suggestion for hearing or rehearing en banc takes place. Judge Ervin has not sat when the case was reheard en banc. No responsible suggestion could be made that he, who was disqualified and consequently took no part The court en banc, therefore, could not have had among its members Judge Ervin. He, in recusing himself, has not infringed the statutory mandate that all circuit judges in regular active service shall comprise an en banc court. Any seeming contradiction between court action and statutory language is at most apparent; it is not real. There is a ready explanation. Judge Ervin is regular and active, ⁶ and as a general proposition is in service. However, should he, or any other regular, active member of the court, recuse or disqualify himself at any time, he is out of service insofar as that particular case is concerned. To disqualify means to debar...