U.S. v. Samuels, No. 85-2002

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Robert G. Ulrich, Jr., U.S. Atty.; Before LAY, Chief Judge, and HEANEY, ROSS, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, and MAGILL; ROSS, GIBSON, FAGG, BOWMAN, and WOLLMAN; Separate statement of LAY; ARNOLD; FAGG, Circuit Judge, with
• Citation: 808 F.2d 1298
• Parties: UNITED STATES of America, Appellee, v. Michael Keith SAMUELS, Appellant.
• Decision Date: 09 January 1987
• Docket Number: No. 85-2002

Page 1298

808 F.2d 1298 UNITED STATES of America, Appellee,
v.
Michael Keith SAMUELS, Appellant. No. 85-2002. United States Court of Appeals,
Eighth Circuit. Jan. 9, 1987.

Sylvester James, Jr., Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., for appellant.

Robert G. Ulrich, Jr., U.S. Atty., J. Whitfield Moody, Asst. U.S. Atty., Kansas City, Mo., for U.S.

Before LAY, Chief Judge, and HEANEY, ROSS, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, and MAGILL, Circuit Judges.

Page 1299

ORDER DENYING MOTION FOR REHEARING EN BANC.

A request has been made by an active judge of this court for a rehearing en banc; the request is denied for the reason that a majority of circuit judges, who are in regular active service, have failed to vote in favor of it.

ROSS, GIBSON, FAGG, BOWMAN, and WOLLMAN, Circuit Judges, would vote in favor of it.

Separate statement of LAY, Chief Judge.

I concur in the denial of rehearing en banc. However, two concerns raised by the unusual posture of this case cause me to separately write.

First, I question the propriety of any active circuit judge requesting a rehearing en banc after a panel opinion has been issued when no party to the litigation has filed a petition for rehearing en banc. There is no express authority for a judge to so act provided in the Federal Rules of Appellate Procedure. Fed.R.App.P. 40(a) explicitly provides for a petitioner to file a petition for rehearing "within 14 days after entry of judgment unless the time is shortened or enlarged by order or by local rule." Moreover, Fed.R.App.P. 35(b) states that "[a] party may suggest the appropriateness of a hearing or rehearing en banc." I realize that our local rules provide that either "a party or judge of this court in regular active service" may request a hearing or rehearing en banc. 8th Cir.Local R. 16(a). However, I suggest that this rule may not be authorized under Fed.R.App.P. 47, which states that "[e]ach court of appeals * * * may from time to time make and amend rules governing its practice not inconsistent with these rules."

The historical facts of this case illustrate the confusion that can arise under the current wording of our Local Rule 16. First, the operation of all of our rules governing appellate procedure is linked with Fed.R.App.P. 41, which directs when our mandate shall issue. Rule 41 reads:

(a) Date of Issuance. The mandate of the court shall issue 21 days after the entry of judgment unless the time is shortened or enlarged by order. A certified copy of the judgment and a copy of the opinion of the court, if any, and any direction as to costs shall constitute the mandate, unless the court directs that a formal mandate issue. The timely filing of a petition for rehearing will stay the mandate until disposition of the petition unless otherwise ordered by the court. If the petition is denied, the mandate shall issue 7 days after entry of the order denying the petition unless the time is shortened or enlarged by order.

Fed.R.App.P. 41(a) (emphasis added). No order was ever requested to shorten or enlarge the time for issuance of the mandate in this case. However, the clerk of our court did withhold the issuance of the mandate when a judge of this court sua sponte requested a poll of the active judges for a rehearing en banc. Thus, the parties to this date have not been notified that the mandate of the court up to the date of this order has in fact never been issued. Because the parties and the district court erroneously assumed that our mandate had issued within the time limits dictated by Rule 41, on November 26, 1986, based on the panel opinion, a judgment of acquittal by the district court was entered and the defendant released from custody. ¹

The circumstances of this case should caution us as to the propriety and advisability of a rule allowing judges sua sponte to seek rehearing en banc. We have enough work to do without assuming an activist role and becoming advocates. Moreover, I am confident that the United States had good reasons for not seeking a petition for rehearing in this case. Certainly the government stands in our court on the same footing as any other advocate, but

Page 1300

the government's decision to seek or not seek a rehearing is made with deliberate thought and with a recognized responsibility to the public. Granted, the confusion generated here might have been obviated if an order enlarging the time for the issuance of the mandate was entered and the parties timely notifed. However, parties should presumptively have a right to rely on the time limits as now designated in the federal rules without our actions interfering with the operation of that carefully constructed procedural process. ²

A second concern is raised by the dissent's reference to the fact that the panel majority included a district judge sitting by designation. The mere fact that a visiting district judge has participated on a panel or has written a decision for this court should not impugn the integrity of that panel's decision in any respect. Every circuit court in the country uses visiting Article III judges to sit on panels during terms of court. This practice is essential in order to efficiently clear our dockets. To suggest that when a visiting judge sits and votes on a panel decision the opinion lacks credibility is to belittle the entire appellate process in federal courts of appeal. This suggestion also plants doubt in the minds of litigants appearing before such a panel as to whether the panel is as competent as any other panel of the court. In some circuits this would mean that almost every panel is suspect, because of their continuing use of visiting judges. ³ When any Article III judges are assigned to our court to assist us, this court is not only grateful for their assistance, but, more importantly, holds out to both litigants and lawyers that the visiting judge is recognized to be as able and competent a judicial officer as any other judge on the court of appeals.

En banc rehearings are never justified because of the makeup of the panels. En bancs are not favored, should be rarely necessary, and should be ordered only when consideration by the full court is necessary...