(dissenting) .
In my opinion, while according due respect to those of a contrary view, rehearing this case en banc, a matter for the exercise of the sound discretion of the full membership of the court, should not have been granted after the decision of the division. The statutory structure of this court of nine members, any three of whom constitute a court, is designed to enable us to keep abreast of our work as it increases in volume over the years. Though I do not question our power to rehear any case en banc it is a power to be exercised sparingly and only for good cause.1
Appellant Rachel M. Brawner, the private individual concerned, and the appellant labor organization of which she was a member, brought an action in the District Court on September 6, 1957, claiming that she had been illegally deprived by the Government, on security grounds, of her private employment ás a cook in a cafeteria which was located with Government approval in the Naval Gun Factory. The District Court decided against her on July 21,1958. She and the Union appealed to this court on August 14, 1958. Neither the appellants, nor the United States, nor any member of the division of this court assigned to hear the case, nor any other member of this court, requested that the case be heard en banc. The division accordingly heard argument, and took the case under advisement in February 1959. There was then pending in the Supreme Court Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377. That case also involved the discharge, demanded by the Government on security grounds, of a person in private employment. Mr. Greene was an employee of a company manufacturing products for the Defense Department. He was authorized to have access to classified information, which our appellant was not. The division which heard the present appeal awaited the decision of the Supreme Court in Greene v. McElroy, which came down June 29, 1959. Reversing this court, the Supreme Court held that Mr. Greene’s deprivation of employment was unauthorized.
Neither the United States, nor appellants, nor any of the nine members of this court, then sought reargument of appellants’ case, en banc or otherwise. On August 21, 1959, the division which had heard this case decided it, holding, especially in light of Greene v. McElroy, that appellant Brawner’s discharge had not been validly accomplished, one judge dissenting. Five weeks later, on September 25, 1959, rehearing en banc was sought for the first time, by the United States, in order to obtain a reversal of our decision, thus using the full court of nine judges as a court of appeals over a division.
When the division decided the case it became ripe for consideration by the Supreme Court. When the United States nevertheless requested a rehearing en banc, each of the nine members of this court was called upon to consider the appropriate course for the litigation to take. Five members voted at this late stage to rehear the case en banc. It was accordingly set down for reargument, and reargued. It has now been re-deeid-ed, the earlier two to one decision of the division being reversed by a vote of five to four. Many months and much judicial and professional labor have been consumed in the en banc process, with final termination of the litigation still uncertain and probably far removed. A decision is rendered which four of us think clearly inconsistent with principles laid down by the Supreme Court in recently reversing this court in Greene v. Mc-Elroy. Appellant Brawner — unless she has wearied of the matter — will no doubt *193seek Supreme Court review. In that event the Supreme Court will be faced, as it could quite as well have been faced many months ago when the decision of the division was rendered, with the question whether or not to review the case. There was no call for this court en banc to review the decision of the division because, by reason of the nature of our court and of this case, the responsibility of decision at the level of this court had been fully met. It seems to me that in such a case as this the possibility of a different result should then have been left, as it is now much later left, to the Supreme Court. Even if the decision of the division be doubtful nothing has been advanced, and everything has been retarded, for both the individual and the Government, by the substitution nearly eight months later of a decision no less doubtful.
Were the case of only local importance, and therefore one in which a decision deemed by a majority of the full court to be erroneous must be corrected if at all by the court en banc, because not worthy of presentation to the Supreme Court, then our court en banc might perhaps have been more warranted in intervening. Larkin v. United States, 108 U.S. App.D.C. 239, 281 F.2d 72, is illustrative. But even in such a case moderation and self-restraint would be in order, for the philosophy underlying the structure of this appellate court does not contemplate ordinarily a superior appellate court within the court itself. Moreover, had request for en banc hearing of this case been made before the division heard it, or even before the division decided it, such a hearing might reasonably have been granted because of the obvious importance of the case. But en banc intervention after the decision of the division has served merely to retard ultimate disposition of the litigation, with no countervailing advantage to either the public or the private interests involved.
My views thus expressed are not in condemnation of my brethren of the majority, but only an expression of opinion, different from theirs, as to the use of the en banc power.
I would vacate the order granting the rehearing en banc and would reinstate the opinion and judgment of this court first filed.
I add that deprivation of employment on security grounds is a grave injury. The public draws no sharp distinction between security and loyalty. Cf. Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012. As the Supreme Court has said of exclusion from public employment on disloyalty grounds, “In the view of the community, the stain is a deep one; indeed, it has become a badge of infamy.” Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 218, 97 L.Ed. 216. Engineer and cook alike suffer, in spirit and in reputation. They should have equal protection.
The opinion of this court first filed, and the dissenting opinion filed at the same time, were as follows:
Before Edgerton, Fahy, and Dan-aher, Circuit Judges.. The late Chief Judge Stephens stated Ms views upon the subject some years ago for the information of the Bar 20 D.C. Bar Ass’n Jour. 105-09 (1953).