United States Court of Appeals
For the First Circuit
No. 04-2186
GREGORIO IGARTÚA de la ROSA, et al.,
Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA,
Defendant-Appellant.
Before
Boudin, Chief Judge,
Torruella, Selya, Lynch, Howard and Lipez, Circuit Judges.
Dated: May 12, 2005
MEMORANDUM AND ORDER
Per Curiam. Following a panel decision in this case,
Igartua-De La Rosa v. United States, 386 F.3d 313 (1st Cir. 2004),
a petition for rehearing was filed seeking panel rehearing or
rehearing en banc. The panel thereafter granted rehearing and
asked the parties to address two issues: first, the plaintiffs'
claim that the United States was in default of its treaty
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obligations and, second, the availability of declaratory judgment
concerning the government's compliance with any such obligations.
The rehearing order vacated the original panel decision.
Igartua-De La Rosa v. United States, 2005 WL 857110 (1st Cir. Mar.
14, 2005).
Given the importance of the issues, a majority of the
active judges then voted that the rehearing should be en banc. The
original panel comprised two active judges and one senior judge,
all of whom participated in the panel decision which is now being
reconsidered. Under the governing statute, a court that rehears a
case en banc is comprised of all active judges, except that any
senior judge of the circuit may participate in an en banc court
“reviewing a decision of a panel of which such judge was a member.”
28 U.S.C. § 46(c) (2000).
The question has been raised whether the senior circuit
judge who participated in the panel decision is eligible to sit on
the en banc court in this case. A vote and a formal order have
been requested on this issue. Accordingly, the active judges have
determined, by a five to one vote, that the senior circuit judge is
entitled to sit on the rehearing en banc.
For some years, it has been the practice of this court,
when granting rehearing en banc, to vacate the panel decision in
the same order. See e.g, United States v. Councilman, 385 F.3d
793, 793 (1st Cir. 2004); Savard v. Rhode Island, 338 F.3d 23, 25
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(1st Cir. 2003) (en banc); Irons v. F.B.I., 880 F.2d 1446, 1447
(1st Cir. 1989) (en banc). A reason for this practice is that a
grant of rehearing en banc almost invariably results in a new
decision, whether the outcome differs from or duplicates the result
reached by the panel. No such order was issued in this case by the
en banc court because the panel decision had already been withdrawn
when panel rehearing was granted.
Given this past practice, it could be argued in most
cases where this court has previously reheard cases en banc, that--
in a mechanical sense-–the en banc court is “reviewing” not the
panel decision but the judgment of the district court. But this
reading would ignore the thrust and purpose of the statute, the
substance of what is happening when rehearing en banc is granted,
and long established practice in this court. Each point deserves
brief elaboration.
First, the thrust and purpose of the statute is to assure
that where the senior circuit judge has participated in the panel
decision, a rehearing of the case en banc will include the senior
circuit judge as a member of the en banc court if he chooses to
participate. See S. Rep. No. 97-275, at 27 (1981). This gives the
en banc court the benefit of the knowledge and judgment of all of
the judges of this circuit who sat on the panel that rendered the
initial decision. That rationale directly supports the
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participation of the senior circuit judge in the en banc proceeding
in this case.
Second, an en banc decision, following a panel decision,
is in substance reviewing the work of the panel regardless of
whether the panel opinion has or has not been formally withdrawn at
the time of the rehearing. See, e.g., JOM, Inc. v. Adell Plastics,
Inc., 193 F.3d 47, 49 (1st Cir. 1999) (en banc) (reinstating
portion of vacated panel opinion). The issue on rehearing en banc
virtually always turns on something the panel decided or failed to
decide. Whether the panel decision is withdrawn at the beginning
or end of the en banc process, the en banc court’s action is in its
essence one that either reaffirms or alters what the panel has
decided.
Third, the unvarying practice of this court for many
years has been to include on the en banc panel any senior circuit
judge of this circuit who sat on the original panel and chooses to
participate. This practice is not affected by the fact that the
panel in this case withdrew its decision while the en banc petition
was pending; given our past practice, a withdrawal of the panel
decision by the en banc court itself has never prevented a senior
circuit judge who sat on the panel from sitting on the en banc
court.
Fourth, what little precedent exists on the
interpretation of the statute directly supports the participation
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of the senior circuit judge in this case. The leading opinion,
United States v. Hudspeth, 42 F.3d 1013 (7th Cir. 1994) (Posner,
C.J.), articulates the rationale set forth above; pertinently, that
case upheld the inclusion on the en banc court of a senior circuit
judge who had participated on the panel, even though the panel had
not issued a decision prior to the grant of an en banc hearing.
That rationale applies a fortiori to our own case in which the
panel did issue a decision.
Accordingly, the senior circuit judge who participated in
the panel decision in this case is entitled to sit on the en banc
court.
It is so ordered.
Dissent follows.
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TORRUELLA, Circuit Judge (Dissenting). The convening of
this en banc court is unfortunate, for it conducts its
deliberations under the pall of two weighty errors, one of judgment
and the other of law.
On October 14, 2004, a duly constituted panel of this
court promulgated its opinion rejecting petitioners' claims, and
issuing a judgment to said effect. Thereafter, they petitioned for
rehearing by the panel, and in the alternative, for en banc
consideration. After due deliberations, on March 14, 2005 the
panel that heard the appeal unanimously voted to rehear the case,
and consistent therewith, contemporaneously withdrew the panel
opinion and judgment. Thus, the pending en banc request was
mooted. The panel additionally ordered the United States and
petitioners to file briefs on specific issues, set a date for oral
argument, and invited intervention by amicus curiae. Both the
United States and petitioners filed their briefs by April 14, 2005,
and several amici intervened and filed briefs by April 22, 2005.
Thereafter, on April 25, 2005, motu propio, a majority of
the active judges of the court, in an action which is unprecedented
in my judicial experience, quashed the duly constituted three-judge
panel, and decided that the matter should be considered by an
expanded seven-judge en banc court. Although I do not question the
legal authority of the majority of this court to so act, I believe
that given the juncture of this appeal when it took this anomalous
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course, its decision demonstrates poor judgment and
shortsightedness, particularly when this error was compounded by
the inclusion of a senior judge who does not meet the requirements
of 28 U.S.C. § 46(c)(1) as a member of the en banc court. The
traditional practice referred to in the majority's opinion is
totally inapposite to the procedural circumstances of the instant
case, and, in any event, circuit tradition cannot eliminate our
obligation to comply with statutory law.
It is clear that the decision of the rehearing panel to
withdraw its decision and judgment preceded the en banc order.
Thus, the senior judge in question does not qualify to sit on the
en banc court, as the unambiguous language of the statute allows
participation of a senior judge in an en banc proceeding only when
it is "reviewing a decision of a panel of which such judge was a
member." Id. After the panel withdrew its opinion and judgment,
it had before it for review only the district court opinion from
which the appeal had been taken. Had the matter been allowed to
run its course without interference by the en banc order, it is the
appeal from the district court opinion that the rehearing panel
would have passed upon. Thus, it is that opinion now before the en
banc court, not "a decision of a panel of which [the senior judge]
was a member." Id.
To my knowledge, no circuit has held otherwise. While
the Seventh Circuit has interpreted Section 46(c) to permit a
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senior judge who sat on a panel to participate in en banc review
granted before the original panel decision ever issued, the
procedural setting of that case is distinct from the one currently
before us. See United States v. Hudspeth, 42 F.3d 1013 (7th Cir.
1994). In Hudspeth, the Seventh Circuit limited its broad
interpretation of "reviewing a decision of a panel" to the case
before it in which the panel had prepared and agreed on a decision,
which "was all set to be released when the grant of rehearing en
banc intercepted it." Id. at 1014. In such a case, the court
could see "no rational difference, so far as participation by a
senior judge is concerned, between that case and one in which
rehearing en banc is granted after the panel decision is issued.
In both cases, the panel has finalized its decision, although in
only one has the decision been issued." Id. In the instant case,
however, the panel has clearly not finalized its decision, as it
chose to withdraw it, vacate the corresponding judgment, and
schedule oral arguments in order to aid its reconsideration of the
merits.
A narrower interpretation of Section 46(c) is required by
the instant circumstances, and supported by the legislative
history. That section was originally amended in 1963 to provide
that a senior judge "shall also be competent to sit as a judge of
the court in banc in the rehearing of a case or controversy if he
sat . . . at the original hearing thereof." See S. Rep. 97-275,
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97th Cong., 1st Sess., 1982 U.S.C.C.A.N. 11, at 37 (emphasis
added). In Allen v. Johnson, 391 F.2d 527 (5th Cir. 1969), the
Fifth Circuit correctly interpreted this language to permit the
participation in en banc of a senior judge who had participated in
the panel hearing, even though no panel decision had yet been
issued. The statutory language, however, was removed in 1978 due
to administrative concerns, only to be replaced in 1982 in order to
"permit a senior judge sitting on an original hearing panel to
participate in en banc review of that panel's decision." Id.
(emphasis added). Although the Senate Report acknowledged the
potential value of a senior judge's contributions, it chose not to
replace the language requiring the senior judge to have
participated in the "panel hearing," but instead required the
judge's participation in the "panel decision."
In my view, we must draw the same distinction here.
While a senior judge participated in the panel hearing of this
case, panel rehearing had been granted and there is currently no
panel decision available for the en banc court to review. I
therefore vote against the senior judge's participation in en banc
review of the decision below.
By the Court:
________/s/______________________
Richard Cushing Donovan, Clerk
[cc: Mr. Igartua de la Rosa, Mr. Katsas, Ms. Munoz-Acosta, Mr.
Voltaire, Mr. Collette, & Mr. Singer.]
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