International Business Machines Corp. v. United States

TIMBERS, Circuit Judge

(dissenting) :

I join Judge Moo're in dissenting from the en banc majority’s dismissal of the appeal and the petition for a writ of mandamus. I renew my concurrence in Judge Moore’s panel majority opinion, 471 F.2d 507, 508-17 (2 Cir. 1972), and I concur in his en banc dissenting opinion filed today.

In view of certain unique aspects of this case in its present posture, I think it is important in the -public interest briefly to attempt to respond to two essential questions: (1) How did we get here? and (2) Where do we go from here ?

I.

How Did We Get Here ?

Today’s en bane majority decision results in a turnabout of the 2-1 panel decisión of December 19, 1972. Judge Mulligan’s panel dissenting opinion, joined now by Judges Hays, Feinberg and Oakes, becomes the en banc majority opinion by a 4-2 vote. Judge Moore’s panel majority opinion, concurred in by Judge Timbers, becomes now the en banc -dissenting opinion. Thus the law of the Circuit on the substantial issues of unusual importance here involved is being determined by four active judges on a Court for which Congress has provided a nine-judge complement. 28 U.S.C. § 44(a) (1970).

This comes about because there has been a vacancy on this nine-judge Court for a year and a half, and three of the eight active judges have abstained by reason of disqualification from voting at any stage of this en banc proceeding. In order to en bane this case, therefore, the affirmative vote of each of the five eligible active judges was required by 28 U.S.C. § 46(c) (1970) and Fed.R.App.P. 35(a).1 In determining what constitutes a “majority of the circuit judges who are in regular active service” for purposes of en bancing a case, judges who by reason of disqualification are excluded from voting whether to en banc nevertheless are included in determining what constitutes a majority. Zahn v. International Paper Co., 469 F.2d 1033, 1042 (2 Cir. 1972) (Timbers, J., dissenting), cert. granted, 410 U.S. 925 (1973). See 28 U.S.C. § 46(d) (1970).

In stating these facts of en banc life in our Court, I am not complaining about the en banc procedure in compliance with the statute and the rule which *304has gotten us where we are in the instant case.2 I do think it is of the utmost importance, however, that it should be made crystal clear for the benefit of all concerned just how the en banc procedure has operated — and particularly how it has been permitted to operate — to bring about today’s en banc decision in this case.

This is particularly so in view of an opinion in our Court earlier this Term in Zahn v. International Paper Co., supra. There, in seeking to justify the anomalous en banc result by which a minority of three of the active judges voted to deny the en banc reconsideration of one of the more pressing issues of our day which four of the active judges had voted to grant, one of our most learned and esteemed colleagues had this to say in his counter-dissenting opinion:

“The issue here is whether four judges of a court with a nine-judge complement may force an en banc reconsideration that could result in the law of the circuit being determined by less than a majority of the court. If less than a majority could determine the law of the circuit, the purpose of en banc procedure would be eroded. Carried to its logical extreme it would mean that in a case where only five members of a nine-member court were available (either because of vacancies, disqualifications, illnesses or the like) the law of the circuit would be determined by the vote of only three.” (emphasis added) 469 F.2d at 1041 (counter-dissenting opinion of Mansfield, J.).

In the wake of our learned colleague’s prediction of the dire consequences of en banc determination “in a case where only five members of a nine-member court were available”, two events occurred within less than a week of each other: (1) the Supreme Court on February 20, 1973 granted certiorari in Zahn, 410 U.S. 925, thus laying at rest any notion that the issue which four of the active judges of this Court had voted to reconsider en banc was not a substantial question of unusual importance; and (2) an order was entered in our Court on February 14, 1973 granting reconsideration en banc in the instant case — “a case where only five members of a nine-member court were available . . . because of [a vacancy and] disqualifications . . . .” Such clairvoyance on the part of our learned colleague marks him as the truly worthy namesake of one of the most notable jurists of all time.

Nevertheless, I emphatically disagreed at the time with my Brother Mansfield’s attempt in Zahn to justify the denial of en bane reconsideration of such a substantial question of unusual importance despite the 4-3 vote by the active judges of this Court in favor of en banc reconsideration. 469 F.2d at 1041-42.3 And *305I still do. Otherwise there would be no en banc reconsideration of the important issues in the instant case.

The moral of the en banc procedure in this case, in my view, is that it is of less importance that the vote of a single active judge could have blocked en banc reconsideration than that each active judge was willing to vote in favor of en banc, thus assuring that the will of the other four to reconsider the case en bane was not thwarted.

II.

Where Do We Go From Here?

The one thing upon which we all agree is that the time has come to draw down the curtain upon any further opinions in this case in this Court. Able and forceful opinions have been written by the principals at both tiers here— Judge Moore’s panel majority opinion and his en banc dissenting opinion; Judge Mulligan’s panel dissenting opinion and his en banc majority opinion. I have no desire, even if there were room, to start another tier on the merits. Suffice it to say that I concur in both of Judge Moore’s opinions.

What baffles me, however — and perhaps others as well — is where do we go from here?

The dilemma posed by today’s en banc majority holding — assuming arguendo its correctness — is how, if ever, can review be obtained of a district court’s peremptory order in a government civil antitrust action directing disclosure of privileged communications between attorney and client if, the district court itself never having examined the documents, such disclosure is to be compelled prior to review of the order ?

The majority’s position, briefly stated, is that the Expediting Act ousts our Court of jurisdiction and, since the order is not final, it is not appealable to either the Supreme Court or ours; and, aside from the Expediting Act, we have no power to review the order either by appeal or mandamus. In short, the majority says in effect that this order falls into a no-man’s-land that immunizes it forever from effective review by any court.

While I disagree with this conclusion of frustration — for the reasons ably set forth in Judge Moore’s opinions — the majority’s position, if accepted, would appear to compel resort to one of the following courses:

(1) Contempt Adjudication

One way to obtain prompt appellate review of the basic claim of attorney-client privilege would be for an appropriate officer or employee of IBM respectfully to refuse to comply with the district court’s Pretrial Order No. 5. Direct appeal could then be taken to this Court from the district court’s ensuing civil contempt order. While this would result in prompt adjudication of the claim of privilege, the author of this opinion surely can take judicial notice that such course of procedure would be neither acceptable nor pleasant, especially from the standpoint of the alleged contemnor even when represented by distinguished — and effective — counsel.4

(2) Congressional Amendment of Expediting Act

There seems to be a consensus that during the three score years and ten that the Expediting Act has been on the books it has outlived its original purpose and that it is high time that Congress re-examine the statute with a view to providing for direct appeals to the *306courts of appeal rather than to the Supreme Court in antitrust cases. Both of today’s principal en banc opinions agree. “. . .1 would add my voice to those of the esteemed chorus that has urged Congressional re-appraisal of this statute in light of its insidious operation.” 480 F.2d at 300, and authorities cited, (dissenting opinion of Moore, J.). “There is a grave question as to whether the Expediting Act has been efficacious .” 480 F.2d at 296 (majority opinion of Mulligan, J.).

Moreover, as government counsel informed us at the en banc argument of this case, the Antitrust Division of the Department of Justice is continuing to press for legislation to permit appeals from certain types of interlocutory orders in government antitrust actions. See also United States v. International Telephone and Telegraph Corp., 306 F. Supp. 766, 798 n. 98 (D.Conn.1969), appeal dismissed, 404 U.S. 801 (1971).

But, as desirable as such Congressional relief surely would be, it will come too late, if at all, to provide any solace for the beleaguered petitioner — appellant before us.

(3) Mandamus Review by Supreme Court

The only remaining possible solution to the dilemma posed above would appear to be that indicated by Judge Mulligan in his en bane majority opinion, 480 F.2d at 297, in referring to the Supreme Court’s statement in its recent opinion in Tidewater Oil Co. v. United States, 409 U.S. 151, 160 (1972), that “application for the extraordinary writ must be made to this Court where ‘sole appellate jurisdiction lies’ in [government civil antitrust eases].”

For the reasons stated above, together with those more fully set forth in Judge Moore’s opinions, I respectfully dissent from the majority’s dismissal of the appeal and the petition for a writ of mandamus.

. 28 U.S.C. § 46(c) (1970) provides in relevant part that a rehearing before the court in banc may be ordered by “a majority of the circuit judges of the circuit who are in regular active service”; that “[a] court in banc shall consist of all circuit judges in regular active service”; and that “ [a] circuit judge of the circuit who has retired from regular active service shall also be competent to sit as a judge of the court in bane in the rehearing . . . if he sat in the court . at the original hearing thereof.”

By virtue of this last clause, Judge Moore, who has retired from regular active service, has participated as a member of tlie en banc court so far as today’s en banc decision on the merits is concerned, although he was not eligible to vote on whether to en banc the case. See Zahn v. International Paper Co., 469 F. 2d 1033, 1042 n. 1 (2 Cir. 1972) (Timbers, J., dissenting), cert. granted, 410 U.S. 925 (1973).

Fed.R.App.P. 35(a) provides in relevant part that “[a] majority of the circuit judges who are in regular active service may order that an appeal or other proceeding be . reheard by the court of appeals in banc.”

. In other eases during the 18 month period since November 6, 1971 when our Court lias been undermanned and has consisted of only eight active judges, I have been critical of the manner in which the en banc procedure has been permitted to deny en banc reconsideration of substantial questions of unusual importance despite the votes of four of the active judges in favor of en banc. See, e. g., Scenic Hudson Preservation Conference v. FPC, 453 F.2d 463, 494 (2 Cir. 1971) (en banc denied, 4r-4), cert, denied, 407 U.S. 926 (1972) ; Zalm v. International Paper Co., supra, 469 F.2d at 1040-42 (en banc denied, 4-3, i. e. 4 in favor of en banc, 3 against) ; Boraas v. Village of Belle Terre, 476 F.2d 806, 825 & n. 1 (2 Cir. 1973) (en bane denied, 4r-4).

In the instant case, by contrast with the above, while the negative vote of a single one of the five active judges could have blocked the reconsideration en banc which the other four wanted, that negative vote was never cast. That is how we got here.

. For an unusually perceptive criticism of the en banc procedure in Zalm, see Note, En Banc Petition — Decisive Presence Of A Disqualified Judge, 47 St. John’s L. Rev. 345 (1972) (part of Second Circuit Note [1971 Term], id. at 222), preceded by a Foreword by the author of today’s en banc majority opinion in the instant case, Mulligan, The Goring Of The Judiciary’s Oxen, id. at 219.

. See Appeal of the United States Securities and Exchange Commission, 220 F.2d 501 (6 Cir. 1955) (contemnor rep resented by then Assistant Attorney General (now Chief Justice) Warren E. Burger, 226 F.2d at 501).