dissenting.
I can find nothing in 28 U. S. C. § 46 (c) which requires the decision the Court has made, and nothing in the decision which commends itself to considerations of sound judicial administration. For convenience I again quote § 46 (c):
"Cases and controversies shall be heard and determined by a court or division of not more than three judges, unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in active service. A court in banc shall consist of all active circuit judges of the circuit.”
The statute need hardly be read, as the Court now holds it should be, as saying that a case in an en banc court shall be “heard and determined” by the active circuit judges; still less does it say that a case is not “determined” *692until the decision of it is announced. The statute says no more than that ordinarily lawsuits before the Courts of Appeals are to be “heard and determined” before a panel of not more than three judges, but that a majority of the judges in active service may order that a case be set for “hearing or rehearing” before a court consisting of all the active circuit judges of the circuit sitting en banc.
The “heard and determined” clause on which the Court relies appears in a sentence whose purposes were simply to codify the doctrine that a Court of Appeals had power to sit en banc, Textile Mills Corp. v. Commissioner, 314 U. S. 326, while making clear that the usual procedure was to be decision by a three-judge panel.1 It is not an unknown phenomenon in federal adjudication that a case, though heard by less than the entire tribunal, may be decided according to the majority vote of all. Cf. I. R. C., § 7460; see 2 Casey, Federal Tax Practice, 274 — 280. The traditional term, “heard and determined,” in my view was designed to do no more than reflect the obvious inappropriateness of such a procedure to the deliberations of the Court of Appeals. There is no necessity for finding in that term, in light of the context in which it appears, any Congressional direction regarding the constitution of an en banc court.
The requirements governing the composition of an en banc court are found in the last sentence of § 46 (c). All it provides is that such a court shall not include retired *693circuit judges. The reason for such a provision is not hard to discern. Congress would hardly have required a retired circuit judge to return to the bench to attend at an en banc hearing and, as between leaving the matter to the discretion of the individual judge and limiting the court to active judges, it is not surprising — in view of the varying degrees of judicial activity of the retired judges, and the administrative undesirability of having, for these purposes, a court of unpredictable size and complement— that Congress should have chosen the latter course.
The language and context, then, of § 46 (c) are given full effect by holding, as I would, that the statute requires no more than that the members of an en banc court be in active status at the time the case is argued or submitted. Such a construction, for a court which decided the Textile Mills case, supra, should not be difficult to reach. The issue there was whether the predecessor of § 46 (c), conferring appellate jurisdiction on circuit courts consisting of three judges, prevented adjudication by a circuit court composed of five judges, constituting all the active circuit judges of the particular circuit there involved. In holding that it did not, the Court, making a wise “sacrifice of literalness for common sense,” 314 U. S., at 334, found no difficulty in rising above the arithmetic of the predecessor of § 46 (c) so as to achieve a sensible result. Still less should there be difficulty here in accommodating § 46 (c) to the needs of sound judicial administration. So construed, the statute was complied with here.2
*694But even were I to accept the Court's premises — a reading into the en banc procedure of a requirement that only-active judges may participate in the “determination” of such cases, and a view of § 46 (c) as expressing a. Congressional policy against participation by retired judges in decisions setting the “major doctrinal trends” of a court— I could not agree that they justify this decision. Choice of the date of announcement of a decision as the date of “determination” of the cause may provide a touchstone which a disappointed litigant searching for grounds for reversal can easily apply. However, it seems a singularly infelicitous construction of this particular legislative language.3 “[L]aws are not abstract propositions. They are expressions of policy arising out of specific situations and addressed to the attainment of particular ends.” Frankfurter, Some Reflections on the Reading of Statutes, 47 Col. L. Rev. 527, 533. The exact point of time when a case is “determined” is, as all informed lawyers know, a question whose answer varies from case to case, and which is known in a particular instance only to the judges themselves. Certainly, if an opinion- — all argument, reflection, deliberation, and explication having been completed by a court composed of active judges only — is filed with the clerk of the court on the morning following the retirement of one of its members, no policy remotely discernible in § 46 (c) can justify a requirement that his vote in the case should not be counted. If any such policy can be thought to be reflected in the en banc statute, it should not be taken as requiring more than that a judge, whose retirement comes at a time when meaningful things in the *695process of adjudication still remain to be done, must withdraw from further participation. But where such is not the case, the statute should not be thought to require a precipitous termination of judicial affairs and the undoing of adjudications properly made. In the nature of things the effectuation of such a policy should be left with the various Courts of Appeals, if indeed not to the conscience and good taste of the particular circuit judge concerned, as in most instances of individual disqualification for other reasons. Cf. 28 U. S. C. § 455.
It is not a ground for objection that such a construction would provide no test which an outsider, whether litigant or reviewing court, could apply.4 As this Court has observed: “In our view, § 46 (c) is not addressed to litigants. It is addressed to the Court of Appeals.” Western Pacific Railroad Case, 345 U. S. 247, 250. On its view of the statute the Court should not have hesitated to adopt that construction of the “heard and determined” clause which most faithfully reflects its purpose merely because those with whom the statute is not concerned are thereby hampered in voicing their own objections.
Indeed, while I need express no definite view on the question, since I regard the claim of noncompliance with § 46 (c) as untenable, I must say that the Court’s opinion presents no substantial reason for permitting a litigant to overturn a judgment of the Court of Appeals through this sort of collateral attack on the competence of one of its members to sit. Had Judge Medina found in § 46 (c), as the Court holds he should have found, a statutory direction to withdraw from further participation in this *696lawsuit, petitioner and not respondents would have prevailed on the appeal, since that would have resulted in the affirmance, by an equally divided Court of Appeals, of the District Court’s judgment in favor of the Government. Of course, to a litigant, there is no greater injury than to lose a case, but I have difficulty understanding just what legal error has been committed against petitioner, such as to warrant vacation by this Court of the judgment below, thus giving the Government an opportunity to retrieve its original loss in the en banc Court of Appeals. Clearly, Judge Medina was not a mere interloper, or a usurper. He was, and is, a circuit judge of the United States, bearing a commission signed by the President. Abstractions about “competence” only becloud the matter. All that has happened is that Judge Medina has exercised the right conferred by Congress (28 G. S. C. §371 (b)) to retire from active service. Nothing in that action, or in what the Court has said concerning the scope of § 46 (c), renders the judgment of the court below vulnerable to attack. The cases cited by the Court dealt with disqualifications based on policy grounds the effectuation of which called for a vacation of the judgments rendered there.5 No reason has been given why that is so here.
I would affirm.
The Reviser’s Note to § 46 shows this to be true. “This section preserves the interpretation established by the Textile Mills case but provides in subsection (c) that cases shall be heard by a court of not more than three judges unless the court has provided for hearing in banc. This provision continues the tradition of a three-judge appellate court and makes the decision of a division, the decision of the court, unless rehearing in banc is ordered. It makes judges available for other assignments, and permits a rotation of judges in such manner as to give to each a maximum of time for the preparation of opinions.”
The order granting the respondents’ petition for rehearing en banc required that the case be submitted on written briefs, to be filed by Jan. 8, 1958. Judge Medina retired on Mar. 1, 1958. The action of the Judicial Conference in 1959, to which the Court refers (ante, p. 690, note 7), does not of course bear upon the narrow issue before us. That action was broadly directed to permitting retired circuit judges to sit on en banc courts in instances where they had sat on the panel originally deciding the ease. Indeed, the recommendation of the Judicial Conference goes far to dilute the force of the Court’s *694attribution to Congress of a design to leave in the hands of active circuit judges alone the setting of the “major doctrinal trends” of their courts.
In construing a statute far more amenable to a technical approach, we recently rejected an analogous construction of the word “determined.” United States v. Price, 361 U. S. 304, 307.
In this case, one cannot say that such a standard was not followed. Although the decision was not announced until nearly five months after his retirement (265 F. 2d 136, 144), Judge Medina had sat on the panel which originally heard the case, and the briefs on reargument were submitted almost three months prior to his retirement. He did not write an opinion in the case.
In Frad v. Kelly, 302 U. S. 312, a motion for discharge from probation was entertained and granted by a judge not of the district where sentence had been imposed. The evident purpose of the statute limiting consideration of such matters to judges of the sentencing court was to permit those judges to develop an integrated policy governing probation. Id., at 318. To give effect to that policy, the order of discharge was vacated. The dictum in American Construction Co. v. Jacksonville, T. & K. W. R. Co., 148 U. S. 372, 387, concerned a violation by a judge of the requirement that he not sit on an appeal from a judgment or order which he had entered. It hardly needs elucidation to recognize that disregard of such a policy infects the judgment rendered.