Air Line Pilots Ass'n, International v. Eastern Air Lines, Inc.

RUTH BADER GINSBURG, Circuit Judge,

concurring in the denial of rehearing en banc:

“[OJnly in the rarest of circumstances,” I continue to believe, should we countenance the drain on judicial resources, the expense and delay for the litigants, and the high risk of a multiplicity of opinions offering no authoritative guidance, that full circuit rehearing of a freshly-decided case entails. See Bartlett v. Bowen, 824 F.2d 1240, 1241, 1244 (D.C.Cir.1987) (Edwards, J., concurring in denials of rehearing en banc) (stressing need for judges on a circuit to “trust one another and have faith in the work of their colleagues”); Church of Scientology v. Foley, 640 F.2d 1335, 1336, 1341 (D.C.Cir.) (en banc) (Robinson, J., dissenting opinion) (stressing “need for judicial restraint in invoking the en banc mechanism”), cert. denied, 452 U.S. 961, 101 S.Ct. 3110, 69 L.Ed.2d 972 (1981). Judge Silberman usefully observes that on remand, in the context of litigation concerning permanent injunctive relief, the district court will be positioned to further consider and decide by final judgment “whether Eastern Air Lines would have instituted the operational changes and furloughs absent its anti-union motivations.” Because I agree that the panel opinion does not foreclose such dispositive litigation,1 I do not believe that dissolution of the preliminary injunction qualifies as the rare case in which it is incumbent upon the full court to “sit in judgment on the panel.” See Jolly v. Listerman, 675 F.2d 1308, 1311 (D.C. Cir.) (Robinson, C.J., concurring in denial of rehearing en banc), cert. denied, 459 U.S. 1037, 103 S.Ct. 450, 74 L.Ed.2d 604 (1982).2

Without full briefing and argument, I am not positioned either to “sanction the re-suit” the panel has reached, id., or to subscribe to the different views of the case taken in dissents from the denial of the suggestion to hear the case en banc. I am persuaded, however, that “reluctance to repair to the en banc procedure” reflects a sound, collegial attitude. But see Starr, J., concurring in the denial of rehearing en banc. That persuasion leads me to decline to vote to rehear this appeal.

. Although I do not reach any of the further matters Judge Silberman addresses, I share his doubt that "the district court actually found that 'financial reasons constituted an independent and sufficient motive for the [challenged] cutbacks' on remand, the district judge can state precisely what he finds from the evidence on that score.

. My colleagues' clear previews of their diverse positions, moreover, lead me to doubt whether en banc rehearing in this case at this juncture would in fact “secure uniformity of decisions in this circuit" or yield a more stable resolution of exceptionally important matters. But see Edwards, J., dissenting from the denial of rehearing en banc, at 920, 924.