Bridges v. United States, 12597
| Decision Date | 29 December 1952 |
| Docket Number | No. 12597,12607.,12597 |
| Citation | 201 F.2d 254 |
| Parties | BRIDGES et al. v. UNITED STATES. BRIDGES v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Gladstein, Andersen & Leonard, Norman Leonard, Vincent W. Hallinan, James Martin MacInnis, San Francisco, Cal., for appellant.
Chauncey Tramutolo, U. S. Atty., Robert B. McMillan, Asst. U. S. Atty., San Francisco, Cal. (James M. McInerney, Asst. Atty. Gen., Beatrice Rosenberg, Carl H. Imlay, John R. Wilkins, Attys., Dept. of Justice, Washington, D. C., John P. Boyd, Sp. Asst. Atty. Gen., of counsel), for appellee.
Before STEPHENS, BONE, and POPE, Circuit Judges.
Following our denial of the petition for rehearing in the above entitled cases, there was received at the clerk's office a document entitled "Application for Leave to File Supplemental Petition for Rehearing, Prayer That Supplemental Petition for Rehearing Be Heard en Banc, and That Order Denying Petition for Rehearing Be Vacated." The instrument is addressed to all of the judges of the court and was lodged with the clerk's office after the time for filing a petition for rehearing had expired and after the appellants had obtained from the United States Supreme Court an extension of time within which to petition for the writ of certiorari. Copies of our opinion, amended opinion, original petition for rehearing, and the document above mentioned, have been distributed to each active member of the court.
A United States Court of Appeals consists of three circuit judges, and, in circuits having more than three judges, it consists of a "Division" of three judges. In exceptional circumstances it may consist of all the active members of the circuit sitting in banc. A "Division" court is no less a court than an "in banc" court.
In Western Pacific R. R. Corp. v. Western Pacific R. Co., 9 Cir., 1951, 197 F.2d 994, at page 1013, the members of this court had before it an application similar to the one we are now dealing with and in that case the Supreme Court has granted the writ of certiorari without specifying whether it will deal with the subject of in banc procedure. We reaffirm the view taken by us in the Western Pacific case, to-wit, that the assignment of causes for hearing of appeals pending in our court is at all times and in all circumstances, save only as to disqualification of a judge, the exclusive right and duty of the whole court and that it is not a privilege of litigants to request that their cases be heard by any selected court sitting in division or sitting in banc. Whether the case will be reheard after decision, and, if reheard, by which particular judges, are matters entirely for the court itself.
However, it is manifestly desirable that the final disposition of the instant cases should not be complicated because of any disposition the Supreme Court may make of the Western Pacific case, or delayed awaiting decision in that case, and for these reasons, and these reasons alone, we proceed to state the basis for our ruling on the document presented for filing with the clerk.
Section 46(c) of Title 28, U.S.C.A. provides:
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Bridges v. United States
...for two years on each of Counts I and III. The Court of Appeals affirmed. 9 Cir., 199 F.2d 811. Rehearing en banc was denied. 9 Cir., 201 F.2d 254. Because of an indicated conflict between that decision and part of the decision in Marzani v. United States, 83 U.S.App.D.C. 78, 168 F.2d 133, ......
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