Tobin v. Ramey, 14370.

• Decision Date: 31 August 1953
• Docket Number: No. 14370.,14370.
• Citation: 206 F.2d 505
• Parties: TOBIN, Secretary of Labor, v. RAMEY.
• Court: U.S. Court of Appeals — Fifth Circuit

206 F.2d 505 (1953)

TOBIN, Secretary of Labor, v.RAMEY.

No. 14370.

United States Court of Appeals Fifth Circuit.

August 31, 1953.

William S. Tyson, Sol., Washington, D. C., Bessie Margolin, Asst. Sol., U. S. Dept. of Labor, Washington, D. C., Earl Street, Regional Atty., U. S. Dept. of Labor, Dallas, Tex., Harry N. Routzohn, Sol., William A. Lowe, Sylvia S. Ellison, Attys., U. S. Dept. of Labor, Washington, D. C., for appellant.

Robert E. Leake, Jr., New Orleans, La., Deutsch, Kerrigan & Stiles, New Orleans, La., for appellee.

Before HOLMES, BORAH and RIVES, Circuit Judges.

HOLMES, Circuit Judge.

The appellee seeks a rehearing because the opinion in this case was written by a judge who did not sit during the oral argument.The petition asserts that the right of appeal contemplates a determination "in the Court of Appeals by at least three judges who have participated in the appellate hearing of the case."It further contends as follows:

"True, 28 USC 46(c) provides that in the courts of appeals, cases shall `be heard and determined by a court or division of not more than three judges,\' implying at first blush, when read out of context, that the hearing may be by less than three; but section 46(b), immediately preceding, states that `in each circuit the court may authorize the hearing and determination of cases and controversies by separate divisions, each consisting of three judges,\' thus fixing the number at that minimum."Citing Western Pacific Railroad Corp. v. Western Pacific Railroad Co., 345 U.S. 247, 73 S.Ct. 656.

The absent judge was a member of the division of the court, consisting of three judges, which had been assigned to sit during the week that this case was argued and submitted, and the writing of the opinion was assigned to him by the two judges who heard the oral argument.His absence was due to the fact that on Monday morning of that week, while on his way to court, he met with a traffic accident, and was confined in a hospital when this case was argued orally.A majority of the number of judges thus authorized to constitute the court was present, heard the oral argument, and participated in the decision, as provided in 28 U.S.C. § 46(c) and (d).

Said section 46,Title 28, in substance, provides that circuit judges shall sit on the court and its divisions in such order and at such times as the court directs; that each circuit court may authorize the hearing and determination of cases by separate divisions, each consisting of three judges, unless a hearing or rehearing is ordered before the courten banc; and that a majority of the number of judges authorized to constitute the court or a division thereof shall constitute a quorum.Section 46(d) in full is as follows: "A majority of the number of judges authorized to constitute a court or division thereof, as provided in paragraph (c), shall constitute a quorum."

In note 3 of its petition for rehearing, the appellee says: "This court's own Rule 36 provides expressly `that whenever a full bench of three judges shall not be made up * * * so many of the district judges as may be necessary to make up a full court of three judges are hereby designated and assigned to sit in this court.'"This contention fails to notice the final clause of the single sentence that constitutes said rule 36.The entire rule is as follows:

"It is ordered that whenever a full bench of three judges shall not be made up by the attendance of the associate justice of the Supreme Court assigned to the circuit, and of the circuit judges, so many of the district judges, as may be necessary to make up a full court of three judges, are hereby designated and assigned to sit in this court; provided, however, that the court may, at any time, by particular assignment, designate any district judge to sit as aforesaid."

The basic portion of this rule was formerly statutory, having been a part of the act of March 3, 1891, 26 Stat. 827, c. 517, § 3, as amended by the act of March 3, 1911, 36 Stat. 1132, c. 231, which is Section 120 of the Judicial Code that was approved March 3, 1911.The statute provided that the several district judges within each circuit should be competent to sit as judges of the circuit court of appeals within their respective circuits; and that, in case the full court at any time should not otherwise be made up, one or more district judges within the circuit should sit therein as members of the court.No designation by the senior circuit judge was required.The statutory basis as to the general competency of district judges to sit upon the court of appeals of their respective circuits, without any special designation by the chief circuit judge, was repealed by the Judicial Code, approved June 25, 1948, which became effective September 1, 1948.SeeSchedule of Laws Repealed, § 39, Revision of Title 28, United States Code, approved June 25, 1948.Prior to said Code of 1948, the circuit courts of appeals, by rule or particular assignments, designated the district judges to sit whenever a full bench of three judges was not in attendance upon that court; but Section 292(a) of the code of 1948 sets out an entirely new procedural legislative provision; it provides for the designation of district judges to sit upon the court of appeals whenever the business of that court...