United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed February 1, 2002
No. 00-5016
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The Honorable John H. McBryde,
United States District Judge for the
Northern District of Texas,
Appellant
v.
Committee to Review Circuit Council Conduct and
Disability Orders of the Judicial Conference of the
United States, et al.,
Appellees
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BEFORE: Ginsburg, Chief Judge, Edwards, Sentelle,
Henderson, Randolph, Rogers, Tatel and Garland, Circuit
Judges.
O R D E R
Appellant's petition for rehearing en banc and the response
thereto have been circulated to the full court. The taking of
a vote was requested. Thereafter, a majority of the judges of
the court in regular, active service did not vote in favor of the
petition. Upon consideration of the foregoing, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY:
Michael C. McGrail
Deputy Clerk
Circuit Judges Sentelle, Rogers and Tatel would grant
the petition for rehearing en banc.
A statement of Circuit Judge Tatel dissenting from the
denial of rehearing en banc, in which Circuit Judge Sentelle
joins, is attached.
Circuit Judges Edwards, Randolph and Garland did not
participate in this matter.
Tatel, Circuit Judge, with whom Sentelle, Circuit Judge,
joins, dissenting from denial of rehearing en banc:
In my view, this case warranted en banc review because
the panel's decision conflicts with well-established precedent
of both the Supreme Court and this circuit. In Webster v.
Doe, the Supreme Court held "that where Congress intends
to preclude review of judicial claims, its intent to do so must
be clear. ... We require this heightened showing in part to
avoid the 'serious constitutional question' that would arise if a
federal statute were construed to deny any judicial forum for
a colorable constitutional claim." 486 U.S. 592, 603 (1988)
(quoting Bowen v. Mich. Acad. of Family Physicians, 476
U.S. 667, 681 n.12 (1986)). See also Griffith v. Fed. Labor
Relations Auth., 842 F.2d 487, 494-95 (D.C. Cir. 1988); Un-
gar v. Smith, 667 F.2d 188, 193 (D.C. Cir. 1981); Ralpho v.
Bell, 569 F.2d 607, 620-21 (D.C. Cir. 1977). Here, the panel
reads section 372(c)(10) to preclude review of Judge
McBryde's as-applied constitutional claims even though the
statute contains no language expressly barring review, and
even though the legislative history may as easily be read to
permit as to preclude federal court jurisdiction over such
challenges. See McBryde v. Comm. to Review Circuit Coun-
cil Conduct & Disability Orders of the Judicial Conference of
the United States, 264 F.3d 52, 73-76 (D.C. Cir. 2001) (Tatel,
J., dissenting). According to the panel, the purported "sub-
stantial redundancy" between review by an Article III court
and by the Judicial Conference reflects Congress's intent to
preclude review of as-applied constitutional claims. Id. at 62.
This position, however, rests not on primary evidence from
the legislative history itself, but on a secondary inference
drawn from the structure of the Act, and thus does not
amount to the kind of "clear and convincing" evidence re-
quired by the Supreme Court and this circuit. See Johnson
v. Robison, 415 U.S. 361, 371-75 (1974) (limiting its analysis
of legislative history to affirmative statements of congression-
al intent); see also Griffith, 842 F.2d at 494-95 (same);
Ungar, 667 F.2d at 193-96 & 195 n.2 (same); Ralpho, 569
F.2d at 620-22 (same). I respectfully dissent from the denial
of rehearing en banc.