concurring.
I am in complete agreement with the Court’s opinion, which holds that DiFrischia v. New York Central R.R. Co., 279 F.2d 141 (3d Cir.1960), is not the law of this Circuit, thus rejecting any suggestion that federal subject matter jurisdiction can be created by estoppel. I write separately only to stress the fact that our holding here is not in derogation of this Court’s Internal Operating Procedures (IOP).
Third Circuit IOP 8(c) provides:
It is the tradition of this court that reported panel decisions are binding on subsequent panels. Thus, no subsequent panel overrules a published opinion of a *74previous panel. Court in banc consideration is required to overrule a published opinion of this court.
Where, however, a holding of this Court is overruled or rejected by the Supreme Court, IOP 8(c) does not require in banc consideration in order to align this Court’s jurisprudence with Supreme Court teaching. Here, the Supreme Court has been consistent and explicit in ruling that federal subject matter jurisdiction can never be created by the litigants, and indeed may be challenged even by the party who originally invoked it.
This rule has been in force since the infancy of the federal court system, see Capron v. Van Noorden, 6 U.S. (2 Cranch) 126, 2 L.Ed. 229 (1804); see also American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951), and as the Court’s opinion acknowledges, has now been emphasized by recent expressions of the Supreme Court in Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982), and Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 377 n. 21, 98 S.Ct. 2396, 2404 n. 21, 57 L.Ed.2d 274 (1978).
Because the rule in DiFrischia is obviously in conflict with Supreme Court precedent, I agree that it must be overruled, and that our action in rejecting DiFrischia may be accomplished without the necessity of an in banc hearing. See, e.g., West v. Keve, 721 F.2d 91 (3d Cir.1983); Halderman v. Pennhurst State School & Hospital, 673 F.2d 628, 643 (3d Cir.1982) (sur petition for rehearing) (both cases noting that the Supreme Court had overruled the Third Circuit appealability rule requiring quantification of attorney’s fees in satisfying 28 U.S.C. § 1291 finality). I therefore join in the Court’s opinion.