Walters v. Moore-McCormack Lines, Inc.

Decision Date14 January 1963
Docket NumberNo. 15,Docket 27473.,15
Citation312 F.2d 893
PartiesJoseph WALTERS, Plaintiff-Appellant, v. MOORE-McCORMACK LINES, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Second Circuit

Irvin L. Kaye, New York City, on the brief, for plaintiff-appellant.


Petition for Rehearing In Banc Submitted October 30, 1962.

LUMBARD, Chief Judge.

Six judges having voted to deny the plaintiff-appellant's petition for in banc reconsideration of his appeal from dismissal of his complaint after a panel of this court had voted to affirm the judgment below, we decline to consider the case in banc. Usually we enter an order which merely notes those judges dissenting, in this case Judges CLARK, SMITH and MARSHALL. Judge CLARK has set out his dissenting views at some length. As his characterization of our record in granting or denying in banc review seems to me inaccurate and incomplete, I think it desirable to add a statement of my own. What follows represents my own views.

Since an in banc hearing was first granted in this Circuit in 1956 in In re Lake Tankers, Corp., 2 Cir., 235 F.2d 783, aff'd 354 U.S. 147, 77 S.Ct. 1269, 1 L.Ed.2d 1246 (1957), the members of this court have been alert to those issues and cases which might require in banc consideration. We have become sensitive to the added problems created by the increase in the number of active judges to nine, which has greatly increased the possibility that the decision of a panel may reflect the view of only a minority of the members of the court.

A summary of the 30 cases which this court has heard in banc (see appendix to this opinion) demonstrates that Judge CLARK's generalization that "prosecutors and prison officials have traditionally had first call, and important property issues are given careful consideration," while "seamen's claims have practically no chance at all of in banc hearing" distorts the actual record.

More than one-third of our 30 in banc cases have been in the field of criminal law — 5 involved federal criminal law1 and 6 involved review of or possible interference with state criminal prosecutions.2 Approximately another one-third, or 9 cases, have involved the construction of federal statutes,3 and an additional 3 have involved questions of federal procedure.4 Of the remaining 6 cases, 3 have involved seamen,5 and the others were concerned with the full faith and credit clause of the Constitution, art. 4, § 1,6 the conduct of civil trials,7 labor arbitration,8 and admiralty.9

With a recent average of about 380 arguments each year, it is apparent that the court must strictly limit the number of those cases which engage the attention of all nine judges.

The most important criterion for granting an in banc hearing is whether the case involves an issue likely to affect many other cases.10 Mere disagreement, or likelihood of disagreement, with the panel decision, has not generally been regarded as sufficient reason for a further hearing, although that is naturally one factor which is given some weight in our votes. In many cases the dissenting judge has opposed an in banc hearing because of the feeling that the question did not warrant the time of all the judges. Conversely, judges have voted to refer to the whole court their own majority opinions or those of other judges with which they agreed.

The overwhelming majority of cases considered in banc do not lend themselves to being categorized as giving "first call" to "prosecutors and prison officials" or as involving "important property issues." Labelling of this kind is scarcely appropriate for the vast majority of cases before us, which involve an amalgam of public and private litigants' interests, general questions of law, and issues of particular fact. Judges, no more than anyone else, see all cases in the same light; what to one of us seems to merit full court consideration for one reason, will present to another an entirely different demand on the full court's attention, and to a third will appear unworthy of being carried beyond the decision of a panel.

I do not understand Judge CLARK's statement that clarification of our in banc procedure is not provided by a consideration of "the nature of the issue" involved in these cases. As I understand the purpose of in banc review, the precise question which controls our decision whether or not to adopt this extraordinary procedure is whether a case presents an issue of sufficient concern to enough litigants who are or may become involved in similar situations so that the even-handed administration of justice will be benefited by a decision by the entire court. The "human element" on which Judge CLARK focuses is, of course, present in every case, whether considered in banc or not. But it is not the basis on which in banc review has been, or should be, granted.

The simple fact is that most seamen's cases present no issue of legal principle; the controlling questions usually involve the application of accepted principles to the facts. Here, the vote of six judges to deny the petition means only that in the light of all the pertinent considerations they feel that the questions presented are not important enough to warrant further consideration. While we all must, and do, respect and consider the views of our brethren as to the issues which are of such compelling importance as to justify a departure from the regular panel procedure, none of us can abdicate his responsibility to determine this question for himself in each case which arises.


1. In re Lake Tankers Corp., 2 Cir., 235 F.2d 783. Decided August 21, 1956. Involved limitation in admiralty. Aff'd 354 U.S. 147, 77 S.Ct. 1269, 1 L.Ed.2d 1246 (1957).

2. F. & M. Schaefer Brewing Co. v. United States, 2 Cir., 236 F.2d 889. Decided September 12, 1956. Involved time within which to appeal from district court decision. Rev'd 356 U.S. 227, 78 S. Ct. 674, 2 L.Ed.2d 721 (1958).

3. United States v. Apuzzo, 2 Cir., 245 F.2d 416. Decided May 28, 1957. Involved the propriety of reference to the defendant's prior record in a criminal case. Cert. denied 355 U.S. 831, 78 S.Ct. 45, 2 L.Ed.2d 43 (1957).

4. United States ex rel. Roosa v. Martin, 2 Cir., 247 F.2d 659. Decided August 16, 1957. Involved question whether state remedies had been exhausted. No Supreme Court action.

5. United States ex rel. Marcial v. Fay, 2 Cir., 247 F.2d 662. Decided August 16, 1957. Involved effect of poverty on requirement of exhaustion of state remedies and right to counsel. Cert. denied 355 U.S. 915, 78 S.Ct. 342, 2 L. Ed.2d 274 (1958).

6. American-Foreign S. S. Corp. v. United States, 2 Cir., 265 F.2d 136. Decided July 28, 1958. Involved applicable statute of limitations in suit for recovery of overpayments of charter hire made to Maritime Commission. Vacated and remanded on another ground, 363 U.S. 685, 80 S.Ct. 1336, 4 L.Ed.2d 1491 (1960). Reheard in banc. Decided on May 26, 1961, 2 Cir., 291 F. 2d 598. Cert. denied 368 U.S. 895, 82 S.Ct. 171, 7 L.Ed.2d 92 (1961).

7. Reardon v. California Tanker Co., 2 Cir., 260 F.2d 369. Decided November 6, 1958. Involved effect on Jones Act recovery of payment under collective bargaining agreement. Cert. denied 359 U. S. 926, 79 S.Ct. 609, 3 L.Ed.2d 628 (1959).

8. Mueller v. Rayon Consultants, Inc., 2 Cir., 271 F.2d 591. Decided November 12, 1959. Involved time in which to appeal from district court decision. No Supreme Court action.

9. Sperry Rand Corp. v. Bell Tel. Lab., Inc., 2 Cir., 272 F.2d 29. Decided November 12, 1959. Involved availability of interlocutory appeal. No Supreme Court action.

10. Pugach v. Dollinger, 2 Cir., 277 F.2d 739. Decided April 14, 1960. Involved power of federal court to enjoin state officials from divulging wiretap evidence in state criminal trials. Aff'd 365 U.S. 458, 81 S.Ct. 650, 5 L.Ed.2d 678 (1961).

11. O'Rourke v. Levine, 2 Cir., 277 F.2d 739. Decided April 14, 1960. Involved same question as Pugach (Case No. 10). No Supreme Court action.

12. United States v. Coppola, 2 Cir., 281 F.2d 340. Decided May 20, 1960. Involved state-federal cooperation and the Mallory rule. Aff'd 365 U.S. 762, 81 S.Ct. 884, 6 L.Ed.2d 79 (1961).

13. United States v. Gori, 2 Cir., 282 F.2d 43. Decided July 22, 1960. Involved attachment of jeopardy in case of mistrial. Aff'd 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961).

14. McWeeney v. New York, N. H. & H. R. R., 2 Cir., 282 F.2d 34. Decided July 29, 1960. Involved refusal of court to charge regarding non-taxable nature of award in F. E. L. A. case, and also regarding taxes on plaintiff's future income. Cert. denied 364 U.S. 870, 81 S. Ct. 115, 5 L.Ed.2d 93 (1960).

15. United States v. Santore, 2 Cir., 290 F.2d 51. Decided November 16, 1960. Involved application of presumption of knowledge of illegal importation in narcotics prosecution. Cert. denied 365 U.S. 834, 81 S.Ct. 745, 5 L.Ed. 2d 743 (1961).

16. Brown v. Bullock, 2 Cir., 294 F. 2d 415. Decided September 5, 1961. Involved existence of federal jurisdiction under Investment Company Act. No Supreme Court action.

17. Drake Bakeries, Inc. v. Local 50, 2 Cir., 294 F.2d 399. Decided September 12, 1961. Involved arbitrability of labor dispute. Aff'd 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962).

18. United States ex rel. Reid v. Richmond, 2 Cir., 295 F.2d 83. Decided September 19, 1961. Involved alleged denial of constitutional rights in a state murder conviction. Cert. denied 368 U.S. 948, 82 S.Ct. 390, 7 L.Ed.2d 344 (1961).

19. Puddu v. Royal Netherlands S. S. Co., 2 Cir., 303 F.2d 752. Decided May 15, 1962. Involved a judge verdict for defendant in action for unseaworthiness and maritime tort. Cert. denied, 371 U. S. 840, 83 S.Ct. 67, 9 L.Ed.2d 75 (1962).

20. Winston v. United States, 2 Cir., 305 F.2d 253. Decided June 28, 1962. Involved right of...

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