United States v. Richardson, Jr. Brief for Plaintiff/Intervenors-Appellees

    &ttpron£ (&mvt of tlf? Untfrft States
O ctober T e e m , 1973

IN  T H E

Ho. 73-899

B a x t e r  K. W il l ia m s , e t  a l ., Appellees Below,
v.

T h e  A lb e m a r l e  C it y  B oard oe E d u c a t io n , 
Appellant Below.

J o seph  P .  M oody, et  a l ., Appellants Below,
y.

A l b e m a r l e  P a pe r  C o m p a n y , e t  a l ., Appellees Below.

On Certification of a Question From the United States Court 
of Appeals for the Fourth Circuit

BRIEF FOR THE ALBEMARLE CITY 
BOARD OF EDUCATION

R ic h a r d  L a n e  B r o w n  I I I
Corner Main and Second Streets 
Albemarle, North Carolina 28001 

Attorney for Appellant Below.
Of Counsel:

R ic h a r d  L . B r o w n , J r .
C h a r l e s  P .  B r o w n  

Corner Main and Second Streets 
Albemarle, North Carolina 28001

M a r t in  B . L ouis
University of North Carolina 
School of Law
Chapel Hill, North Carolina 27514

Press of B yron S. A dams Printing, Inc., W ashington, D . C.



INDEX
Page

Opinions Below ..................................................................  1

Jurisdiction .......................................................................... 2

Statutes Involved ................................................................  2

Questions Presented .......................................................... 3

Statement .........       3

Summary of Argument ....................................................  4

Argument .............................................................................. 6
I. This Court Should Decline To A nswer, the 

Question Certified ................................................  6
A. Although The Question Certified Appears

To Be In Proper Form, This Court May De­
cline To Answer It If No Significant Purpose 
Would Be Served By Expediting Its Reso­
lution .................................................................... 6

B. No Significant Purpose Will Be Served By
Expediting The Resolution Of The Question 
Certified ................................................................ 9

II. Ip the Question Certified Is A nswered, It 
Should Be A nswered in the Affirmative.......... 14

Conclusion ...............................       22

CITATIONS
Cases :
Allen v. Johnson, 391 F. 2d 527 (5th Cir.) ................ .19, 20
Biddle v. Luvisch, 266 U.S. 173 ......................................  7
Bushy v. Electric Utilities Union, 323 U.S. 7 2 ............  7
Columbus Watch Co. v. Robbins, 148 U.S. 266 ............  13
Drake Bakeries, Inc. v. Local 50, Am. Bakery Workers,

294 F.2d 399 (2d Cir.), aff’d, 370 U.S. 254 .......... 8



11 Index Continued

Page
Federal Trade Commission v. Fred Meyer, Inc., 390

U.S. 3 4 1 ........ .................................................................  21
Griggs v. Duke Power Co., 401 U.S. 424 (1971) . . . . . .  11
Middletown Nat. Bank v. Toledo, 197 U.S. 394 .......... 13
Perkins v. Standard Oil Co. of California, 395 U.S. 642 21 
St. Louis-San Francisco By. Co. v. Middlekamp, 256

U.S. 226 .........................................................................  21
Textile Mills Sec. Corp. v. Commissioner, 314 U.S. 326 8
United Mine Workers v. Gibbs, 383 U.S. 715 ........... . 21
United States v. American-Foreign Steamship Corp.,

363 U.S. 685 .................................................................  14
United States v. Barnett, 376 U.S. 6 8 1 ...........................  10
United States v. W oo Jan, 245 U.S. 552 ..................  13
Wheeler Lumber Bridge & Supply Co. v. United States,

281 U.S. 572 .................................................................  7
Wisniewski v. United States, 353 U.S. 9 0 1 ....................7,10
Zahn v. International Paper Company, 469 F.2d 1033 

(2d Cir.) .......................................................................  19

R ules aud  S tatutes  :

Act of 1891, 26 Stat. 826, § 2 ........................................ 8
Act of June 25, 1948, c. 646, 62 Stat. 871, as amended,

28 U.S.C. § 46 ............ .................................................  2
Act of Nov. 13,1963, P.L. 88-176, 77 Stat. 331, 28 U.S.C.

§ 46(c) ................................................................ 3,14,16,18
Federal Rules of Appellate Procedure:

Rule 35(a) .........................................    2
Rule 35(b) .............................................................. 3,16,18

C ongressional M aterial :

21 Cong. Rec. 10222 (1890) ................................................  8
1963 U.S.C. Cong. & Ad. N e w s ........................................ 17

M iscellaneous :

1959 Ann. Rep. of the Judicial C onference.................. 17
Hart and Sacks, The Legal Process (Tent. Ed. 1958) .15, 21
Moore and Vestal, “ Present and Potential Role of Cer­

tification in Federal Appellate Procedure,”  35 Va.
L. Rev. 1 (1949) .........................................................  8

Wright, Federal Courts § 106 (2d ed. 1 9 7 0 )................ 6-7, 9



IN  T H E

Bupnmt Court of %  llmtrh §>tnt£B
O ctober  T e r m , 1973

No. 73-899

B a x t e r  K. W il l ia m s , et  a l ., Appellees Below,
v.

T h e  A lb e m a r l e  C it y  B oard op E d u c a t io n , 
Appellant Below.

J oseph  P .  M oody, et  a l ., Appellants Below,
v.

A lb e m a r le  P aper  C o m p a n y , et  a l ., Appellees Below.

On Certification of a Question From the United States Court 
of Appeals for the Fourth Circuit

BRIEF FOR THE ALBEMARLE CITY 
BOARD OF EDUCATION

OPINIONS BELOW

The findings of fact, conclusions of law, and order 
of the district court granting plaintiffs relief is unre­
ported. A  per curiam opinion of the United States 
Court of Appeals for the Fourth Circuit, affirming in 
part, vacating in part and remanding, has been issued,



2

but is unreported and will not become final until dis­
position of tbe question certified. Neither the findings 
of fact, conclusions of law, and order of the district 
court, nor the opinion of the court of appeals deal 
with the question certified.

JURISDICTION

On December 6, 1973, the United States Court of 
Appeals for the Fourth Circuit certified a question to 
this Court pursuant to 28 U.S.C. § 1254(3). On Janu­
ary 14, 1974, this Court issued an order granting and 
inviting the parties to file briefs on or before Febru­
ary 13, 1974, in response to the question certified.

STATUTES INVOLVED

This case involves 28 U.S.C. § 46, which provides, in 
relevant part, as follows:

(c ) Cases and controversies shall be heard and 
determined by a court of not more than three 
judges, unless a hearing or rehearing before the 
court in bane is ordered by a majority of the 
judges of the circuit who are then in regular ac­
tive service. A  court in banc shall consist of all 
circuit judges in regular active service. A  circuit 
judge of the circuit who has retired from regular 
active service shall also be competent to sit as a 
judge in the rehearing o f a case or controversy if  
he sat in the court or division at the original hear­
ing thereof.

The case also involves Rule 35 of the Federal Rules 
of Appellate Procedure, which provides in part:

(a) When Hearing or Rehearing In Banc Will 
Be Ordered. A  majority of the circuit judges 
who are in regular active service may order that 
an appeal or other proceeding be heard or reheard



3

by the Court of Appeals in banc. Such a hearing 
or rehearing is not favored and ordinarily will 
not be ordered except (1) when consideration by 
the full court is necessary to secure or maintain 
uniformity of its decisions, or (2) when the pro­
ceeding involves a question of exceptional im­
portance.
(b) Suggestion of a Party for Hearing or Re­
hearing In Banc. The clerk shall transmit any 
such suggestion to the judges of the court who are 
in regular active service but a vote will not be 
taken to determine whether the cause shall be 
heard or reheard in banc unless a judge in regular 
active service or a judge who was a member of the 
panel that rendered a decision sought to be reheard 
requests a vote on such a suggestion made by a 
party.

QUESTIONS PRESENTED

Whether the United States Supreme Court should 
answer a question certified by a court of appeals be­
cause of a difference of opinion among the circuits, 
instead of awaiting a petition for certiorari, in a case 
in which proceedings in the court of appeals have 
effectively been completed.

Whether under 28 U.S.C. § 46(c) and Rule 35 of the 
Federal Rules of Appellate Procedure, a senior cir­
cuit judge, a member of the initial hearing panel, may 
vote in the determination of the question of whether 
the case should be heard en hanc.

STATEMENT

This case involves a claim for alleged employment 
discrimination under 42 U.S.C. § 1983, arising out of 
the desegregation of a public school system. The trial 
court found discrimination and awarded plaintiff,



4

inter alia, back pay. A  panel of the United States 
Court of Appeals for the Fourth Circuit, which in­
cluded one senior circuit judge, affirmed the finding of 
discrimination but vacated the back pay award. Upon 
a suggestion for a rehearing en banc, a vote of the 
court was held and the suggestion was defeated by an 
equal division of the judges of the court, including the 
senior circuit judge, who voted against the rehearing.

On December 6, 1973, the Court of Appeals for the 
Fourth Circuit certified the following question to this 
Court:

Under 28 U.S.C. § 46 and Rule 35 of the Federal 
Rules of Appellate Procedure, may a senior cir­
cuit judge, a member of the initial hearing panel, 
vote in the determination of the question of 
whether or not the case should be heard en banc f

Although the answer to the question certified may 
affect the outcome of the case in the court of appeals, 
the question itself does not touch on the facts or the 
merits of the ease.

SUMMARY OF ARGUMENT 
I

The certification jurisdiction is rarely invoked today 
because of this Court’s traditional resistance to it. The 
source of this resistance is threefold: (1) a certified 
question is like a hypothetical question or an advisory 
opinion, (2) the proceeding is, in effect, an interlocu­
tory appeal permitting piecemeal adjudication, and 
(3) the jurisdiction is otherwise mandatory and be­
yond this Court’s control. For these reasons, the 
question certified must be appropriate in form and 
nature, and, in addition, will be answered only in “ rare



5

instances”  involving “ exceptional”  circumstances. 
This is not such a case. The Court of Appeals for the 
Fourth Circuit is divided on questions involving the 
merits, not on the question certified. Thus, if  the 
question were answered, petitions for certiorari seek­
ing resolution of these other questions would probably 
be filed immediately. Furthermore, the court of ap­
peals has virtually completed its efforts and will not 
be spared further futile proceedings, the validity of 
which are threatened by the question’s presence.

Although the question certified has divided the courts 
of appeals, that is an appropriate circumstance for 
certiorari, by means of which this Court alone may de­
cide whether the question is of sufficient importance 
to be resolved now. Finally, although the question 
does involve the powers and duties of judges, it as­
sumes determinative importance only rarely and in­
volves powers and duties the exercise of which are 
hardly ominous. Thus there is no crisis in judicial 
administration here warranting a mandatory, piece­
meal review, rather than a normal petition for cer­
tiorari.

II

In 1960, it was held that a retired circuit court judge 
who had participated in the initial hearing of a case 
could not participate in its rehearing en banc. Shortly 
thereafter the provisions of the judicial code were 
amended to overturn this unwanted result. In the 
process, however, no explicit consideration was given 
to the question of whether this judge could also par­
ticipate in the vote to order a rehearing, an act now 
seemingly barred by the literal words of those pro­
visions of the judicial code that were essentially un­
changed and had effected the prior unwanted result.



6

The legislative history and text of the amending act 
reveal no such purpose, however, and specifically list 
certain other duties that the retired circuit judge was 
not to perform. Furthermore, there is no apparent 
reason or policy that would induce Congress to form 
such a purpose. In fact, because a retired circuit judge 
who is a member of the initial hearing panel may 
clearly participate in the rehearing, as well as in the 
process of deciding whether a suggestion for a rehear­
ing en banc will be put to a vote of the court, his ex­
clusion from the intervening ordering vote would be 
inconsistent, to say the least. Consequently, the statu­
tory language granting him the greater power to vote 
at the rehearing en banc should be construed to include 
the lesser, ancillary power to vote on whether the re­
hearing will be ordered. Such a construction, the 
merits of which have never been challenged by any 
substantial body of legislative or judicial opinion, is a 
reasonable interpretation of a statute which was de­
signed to settle the retired judge problem and which 
specifically listed the duties which such judges were 
not to perform.

ARGUMENT
I. THIS COURT SHOULD DECLINE TO ANSWER THE 

QUESTION CERTIFIED.

A. Although The Question Certified Appears To Be In Proper 
Form, This Court May Decline To Answer It If No Sig­
nificant Purpose W ould Be Served By Expediting Its 
Resolution.

The certification jurisdiction at issue here, which is 
set forth in 28 U.S.C. § 1254(c), appears to he couched 
in mandatory terms. Nevertheless, this Court has so 
frequently declined to answer questions certified to it 
that it has in effect rendered the grant discretionary. 
C. Wright, Federal Courts § 106 (2d Ed. 1970); J.



7

Moore and A. Vestal, “ Present and Potential Rule of 
Certification in Federal Appellate Procedure,”  35 Va. 
L. Rev. 1, 22 (1949). Admittedly, many certified ques­
tions have not been answered because they were inap­
propriate in form or nature, problems apparently not 
present here. Other questions evidencing no such de­
fects, however, have also not been answered. W is­
niewski v. United States, 353 U.S. 901 (1957) ; Busby 
v. Electric Utilities Union, 323 U.S. 72 (1944). In 
explanation of these refusals, the Court has stated that 
this jurisdiction is “ exceptional,”  Wisniewski v. 
United States, supra at 902; Wheeler Lumber Bridge 
& Supply Co. v. United States, 281 U.S. 572, 576 
(1930), and that the question certified must be “ sub­
stantial,”  as well as proper in form and nature. Bid­
dle v. Luvisch, 266 U.S. 173,175 (1924). Indeed, these 
statements, coupled with the Court’s manifest reluc­
tance over the years to entertain such questions and 
the attendant reluctance of the courts of appeals to 
submit them, suggests that a question will not be an­
swered unless some significant purpose will be served 
by expediting its resolution in this manner. Thus in 
Wisniewski v. United States, 353 U.S. 901, 902 (1957) 
(emphasis added) the Court said:

It is also the task of a Court of Appeals to de­
cide all properly presented eases coming before it, 
except in the rare instances, as for example the 
pendency of another case before this Court rais­
ing the same issue, when certification may be ad­
visable in the proper administration and expedi­
tion of judicial business.

Limiting the certification jurisdiction to “ rare in­
stances”  is appropriate and of increasing validity to­
day. Originally the jurisdiction was needed to cir­
cumvent a difference of opinion in a two judge circuit



8

court that was thereby unable to reach decision and 
render an appealable order or judgment. J. Moore & 
A. Vestal, “ Present and Potential Role of Certifica­
tion in Federal Appellate Procedure,”  35 Va. L. Rev. 
1, 10-14 (1949). That problem was obviated by the 
Act of 1891, 26 Stat. 826 et seq., § 2 (1891), wdiieh 
stripped the circuit courts of the power to certify ques­
tions to the Supreme Court, created the circuit courts 
of appeals, and transferred this power to them in 
terms that are essentially unaltered today. Although 
Senator Evarts, the bill’s sponsor in the Senate, viewed 
the certification power as a useful device to settle d if­
ferences of opinion within each circuit court of appeals 
and among the different circuit courts of appeals, Re­
marks of Senator Evarts, 21 Cong, Rec. 10222 (1890), 
these functions have largely been assumed over the 
years by other jurisdictional grants. Thus certiorari 
has become the principal access route to this Court for 
the settlement of inter-circuit differences; and the 
en banc hearing has become the principal device for 
the settlement of intra-court disputes. Textile Mills 
Sec. Gorp. v. Commissioner, 314 U.S. 326, 335 (1941). 
Even the equal division of the judges of a court of ap­
peals in an en banc hearing does not require the assist­
ance of the certification power, since the judgment of 
the trial court, as affirmed by an equally divided court 
of appeals, is reviewable by this Court. Brahe Bak­
eries, Inc. v. Local 50, Am. Bolkery Workers, 294 F,2d 
399 (2d Cir.), aff’d, 370 U.S. 254, 255 n. 1 (1962).

In addition to the diminished utility of certification, 
its use is antagonistic in principle to this Court’s ex­
panding need to control its crowded dockets and to 
curtail the volume of its mandatory jurisdiction, as is 
evidenced by the procedures it has established to screen



9

cases asserting a right of appeal. The courts of ap­
peals should not be empowered to decide in their sole 
discretion through certification what matters are of 
sufficient importance to require decision by this Court. 
That is increasingly a matter for this Court alone to 
decide. C. Wright, Federal Courts § 106 (2d Ed. 
1970).

In sum, the certification jurisdiction has become a 
little needed and little used anachronism. Conse­
quently, it is entirely appropriate that this Court de­
cline to answer any question the expeditious resolution 
of which serves no significant purpose.

B. No Significant Purpose W ill Be Served By Expediting The 
Resolution. Of The Question Certified.

The Certificate of the United States Court of Ap­
peals for the Fourth Circuit reveals that in Moody, 
et al. v. Albemarle Paper Co., etc., et al., No. 72-1267, 
the rehearing en banc has already been held and a 
tentative decision has been reached. I f  this Court does 
not answer the question certified, the court of appeals 
need only confirm its tentative decision and issue an 
opinion. The aggrieved party could then apply for 
certiorari because of a conflict among the circuits with 
respect to the question certified and because of impor­
tant questions upon which the court of appeals is 
divided in the disposition of the case on the merits. 
‘In Williams et al. v. The Albemarle City Board of 
Education, etc., No. 73-1479, the vote was to deny a 
rehearing en banc. Consequently, if this Court does 
not answer the question certified, the decision and 
opinion of the initial hearing panel will remain the 
decision of the court, and the party aggrieved may ap­
ply immediately for certiorari.



10

Thus the Court of Appeals has virtually terminated 
its proceedings in both cases and can conclude them 
expeditiously without this Court’s assistance. There­
fore, an answer to the question certified will neither 
break a judicial deadlock there nor obviate a lengthy 
proceeding, the validity of which is threatened by the 
incorrect resolution of a threshold question of law, 
two possibilities which this Court has previously 
recognized as reasons for invoking the certification 
jurisdiction. For example, in Wisniewski v. United 
States, 353 U.S. 901, 902 (1957), this Court suggested 
that certification would be appropriate if  the same 
issue were raised by another case already pending be­
fore it. And in United States v. Barnett, 376 U.S. 
681 (1964), the most recent case successfully invoking 
the certification jurisdiction, the Court of Appeals for 
the Fifth Circuit had divided on the question of 
whether the defendants were entitled to a jury trial 
in a proceeding to hold them in contempt of an order 
o f that court. But there the court of appeals was 
exercising original jurisdiction, its members were 
equally divided on the question and it could not, there­
fore, render an appealable order or judgment until 
the deadlock was broken. Suppose, however, that a 
bare majority of that court had correctly concluded 
that jury trial was not required. Arguably the court 
might still have reasonably sought an immediate an­
swer to the question because of its closeness and 
threshold nature and because of the unusual public im­
portance of the proceeding itself.

By contrast, no such purposes would be served by 
answering the question certified here. The Judges of 
the Fourth Circuit are divided on questions involving 
the merits o f the two cases, not on the question cer­



11

tified. In  Moody, the en banc hearing has already 
been held; in Williams, it has effectively been denied. 
Thus the resolution notv by this Court of the question 
certified, rather than later upon a grant of certiorari, 
will obviate only the writing of an opinion on the 
merits for the court en banc in Moody. In return, 
however, a rehearing en banc in Williams may be re­
quired, and, more importantly, petitions for certiorari 
would probably soon thereafter be filed seeking review 
on the merits. As appears in their Memorandum On 
The Appropriateness of Certification From The Court 
of Appeals For the Fourth Circuit, p. 2, n. 1, plain­
tiffs emphasize that the two cases raise important 
questions on the merits, upon which the members of 
the court of appeals are closely divided, involving, 
inter alia, the proper interpretation of this Court’s 
decision in Griggs v. Duke Power Go., 401 IT.S. 424 
(1971). Thus, whichever way the certified question 
is answered, one or both of the sides in both cases 
would probably seek certiorari.1

In sum, declining to answer the question certified 
would require no additional proceedings in the court 
of appeals and would limit the proceedings in this 
Court, if  certiorari were granted, to a single occasion.

1 If the question certified were answered in the affirmative, in 
Williams the decision of the initial hearing panel would become the 
decision of the court, and plaintiffs would presumably seek certiorari 
to review its decision reversing an award of damages; in Moody 
the Fourth Circuit predicts that it will modify the decision of the 
initial hearing panel, which reversed the trial court’s denial of 
back pay, as a result of which one or both sides may apply for 
certiorari. I f the question certified were answered in the negative, 
a rehearing en banc would presumably have to be held in Williams. 
The court of appeals opines in its certificate that it would then 
divide equally and affirm the judgment of the district court award­
ing damages, a result that would create for defendant an appeal­
ing occasion to seek certiorari.



12

By contrast, if  the question certified were answered, 
it might require another rehearing en banc in the 
court of appeals and an additional proceeding on the 
merits before this Court. This situation is analogous 
then to one in which a verdict winner seeks to obtain 
immediate review in a court of appeals by writ of 
prohibition of a district court’s debatable ruling that 
it was empowered to grant judgment notwithstanding 
the verdict on its own motion because it reserved de­
cision on a motion for directed verdict, in a case where 
the question of the sufficiency of the evidence was also 
extremely close. The writ would surely be denied in 
such a situation, without regard to the fact that the 
question involved affects the duties, responsibilities 
and powers2 of the judges of the federal district

2 The Certificate of the Court of Appeals for the Fourth Cir­
cuit pointedly employs these words without further explanation, 
as if they had some talismanie significance. Upon analysis, how­
ever, no such significance appears. Questions involving the powers 
of courts or judges may perforce arise more frequently than sub­
stantive questions. But, as the Court’s Certificate also reveals, 
this is the first time that the proper construction of the Act of 
1963 to clarify the status of judges after retirement has assumed 
determinative importance in the Fourth Circuit. Thus, deferring 
resolution of the question until certiorari is granted does not 
realistically involve the risk that decisions in numerous other 
eases will be similarly “ flawed.”  Furthermore, although erroneous 
rulings by judges enlarging their powers may sometimes invoke 
the specter of oppressive judicial overreaching, which should 
obviously be corrected at the first opportunity, no such possibility 
is involved here. Senior judges are clearly empowered to par­
ticipate by assignment in the decision of the initial hearing panel 
and thereafter in any rehearing en banc. Assuming arguendo 
that these judges are prohibited by statute from also partici­
pating in the vote to determine whether a rehearing en banc shall 
be ordered, a less harmful exercise of unconferred power could 
hardly be imagined. Thus, the fact that this one aspect of the 
duties, responsibilities and powers of these judges is in question 
does not create a crisis in j udicial administration.



13

courts, because the proceedings in the district court 
were almost completed, Furthermore, the case would 
probably be appealed oil the merits even if  the writ 
were granted, and, if the writ were denied and on 
appeal it was held that the trial judge lacked the power 
in question, the court of appeals could still order the 
entry of judgment on the verdict without the necessity 
for a new trial. Appellant, The Albemarle City Board 
of Education, submits that this case is no different 
in any significant regard,3 and that expediting resolu­
tion of the question raised here would similarly cause 
delay and consume additional judicial time without 
accomplishing any significant offsetting purpose.

Thus, the only apparent justification for certifica­
tion here is the existence of a division among the cir­
cuits on the question certified. On at least one occa­
sion this Court has answered a certified question for 
this reason. United States v. Woo Jan, 245 U.-S. 552 
(1918) ; cf. Middletown Nat. Bank v. Toledo, 197 U.S. 
394 (1905) (answering a question of state law upon 
which there was only potential conflict among the 
states); hut see Columbus Watch Co. v. Robbins, 148 
U.S. 266 (1893). But as the number of such inter- 
circuit differences has proliferated since that time, 
access to this Court to resolve them has been almost 
exclusively limited to the grant of certiorari, and it 
would hardly be prudent today to reaffirm the now 
almost extinct principle that a difference among the

3 The verdict winner may obviously appeal to the court of 
appeals if, in the example given, the writ is denied and judgment 
notwithstanding the verdict is entered, whereas the party aggrieved 
here could only apply for certiorari to resolve the question if 
it is not answered. But if the question certified is regarded as 
being of sufficient importance, this Court is hardly foreclosed from 
granting certiorari to resolve it.



14

circuits is alone sufficient to invoke the certification 
jurisdiction. Indeed, it would come as a great sur­
prise to all those disappointed litigants who have 
sought unsuccessfully since then to obtain certiorari 
on this ground that they might otherwise have gained 
their end by first requesting the court of appeals to 
certify the disputed question.

For all these reasons no significant purpose would 
be served by expediting the resolution of the question 
certified, and accordingly, this Court should decline 
to answer it.

II. IF THE QUESTION CERTIFIED IS ANSWERED, IT SHOULD 
BE ANSWERED IN THE AFFIRMATIVE.

The question certified is as follows:
Under 28 U.S.C. § 46 and Rule 35 of the Federal 
Rules of Appellate Procedure, may a senior cir­
cuit judge, a member of the initial hearing panel, 
vote in the determination of the question of 
whether or not the case should be heard en banc.

In United States v. American-Foreign Steamship 
Corp., 363 U.S. 685 (1960), this Court held that a 
retired circuit judge who had participated in an initial 
panel decision before retirement was not permitted to 
participate in the rehearing of the case en banc. This 
result was said to be required by 28 U.S.C. § 46(c), 
which provided that in the United States Court of 
Appeals “  (c)ases 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,”  and 
that u (a) court in bane shall consist of all active cir­
cuit judges of the circuit.”  The opinion, however,



15

conceded that “ persuasive arguments”  could be ad­
vanced for allowing such participation in the future 
and called favorable attention to corrective legislation 
that had been recommended by the Judicial Conference 
of the United States. Several years later Congress 
enacted P.L. 88-176, 77 Stat. 331 (1963), “ Judges- 
Status After Retirement,”  “ An Act to clarify the 
status of circuit and district judges retired from reg­
ular active service.”  This enactment, which made 
certain editorial changes in the first two sentences of 
§ 46(c) and added a third in the language recommended 
by the Judicial Conference, provides as follows:

Cases and controversies shall be heard and deter­
mined 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 regular 
active service. A  court in banc shall consists of 
all circuit judges in regular active service. A  cir­
cuit judge of the circuit who has retired from 
regular active service shall also be competent to 
sit as a judge of the court in banc in the rehear­
ing of a case or controversy if  he sat in the court 
or division at the original hearing thereof.

In their renowned book, The Legal Process: Basic 
Problems in the Making and Application of Law 
(Tentative Edition 1958), Professor Hart and Dean 
Sacks refer to such events as the interstitial correction 
of decisional doctrine. In this process, the note, litiga­
tion frequently ensues because of negative implications 
arguably pregnant in the legislature’s failure to touch 
on related problems, and too often there follow dis­
cordant constructions totally at odds with the legisla­
ture’s manifest purpose. Id. at 802-03. Such a prob­
lem is presented here. An overly literal reading of the



16

sentence added to § 46(c) in 1963 suggests that a retired 
circuit judge who sat in the court or division at the 
original hearing has been empowered to participate 
only in the rehearing en banc, and, therefore, has been 
excluded by negative implication from participation in 
the vote to determine whether a rehearing en banc 
will be ordered. On the other hand, this sentence can 
also be read to provide that such a retired judge is 
deemed to be a judge in regular active service for 
purposes of the entire rehearing process governed by 
the first two sentences, on the theory that the grant of 
the greater power to participate in the rehearing itself 
carries with it the lesser ancillary power to participate 
in the vote ordering a rehearing.

Such a construction, which the Fourth Circuit has 
apparently adopted, is consistent with Rule 35(b) of 
the Federal Rules of Appellate Procedure,4 which pro­
vides that such retired judges may also participate 
fully in the decision as to whether the suggestion of a 
party for rehearing en banc will be put to the vote of 
the judges of the Circuit. Thus, those who dispute the 
Fourth Circuit’s construction must contend that, al­
though such retired circuit judges may participate 
fully in the process of deciding whether there will be 
a vote on a suggestion for a rehearing en banc and in 
the actual rehearing en banc, they were intentionally 
excluded by the Judicial Conference and by Congress 
from participating in the vote to order such a rehear­
ing. But no such purpose is disclosed in the words of 
the statute or in its legislative history. In fact, there

4 Fed. E. App. Pro. 35 (a) merely adopts the language of 28 
U.S.C. § 46(c) with respect to who may participate in the vote to 
order a rehearing en lane. Thus it assumes no additional signifi­
cance in determining the proper construction of the statute.



17

is no mention whatsoever of this question, much less 
its proposed solution, in the reports of the Judicial 
Conference, 1959 Ann. Rep. of the Judicial Confer­
ence 9-10, or in the Reports of the House and Senate 
urging enactment of the proposed legislation. Con­
trariwise, the letter transmitting the recommendations 
of the Judicial Conference to the Speaker of the House 
of Representatives, and the Senate Report,5 both of 
which are set forth in 1963 U.S.C. Cong. & Ad. Hews 
1105-06, state that the legislation was specifically de­
signed to exclude retired circuit judges from certain 
other duties; namely, participating in the appointment 
of officers of the court, participating in the promulga­
tion of the rules of the court, and sitting as a member 
of the judicial council of the Circuit. Can it then be 
maintained that Congress and the Judicial Conference, 
while specifically dealing with those duties that a re­
tired judge was not to perform, intended by negative 
implication to bar him from the performance of another 
duty merely ancillary to the one he was specifically 
authorized to perform?

To overcome this dilemma, the Memorandum of Ap­
pellants Moody, et al., and Appellees Williams, et al., 
on the Appropriateness of Certification from the Court 
of Appeals for the Fourth Circuit, pp. 10-13, suggests 
that sound policy supports the exclusion of such retired 
judges from the vote to order a rehearing en lane. The 
Memorandum fails, however, to point to anything in 
the legislative history of the Act of 1963 indicating 
Congressional awareness or approval of such a judg­
ment. In fact, there is no such history and the sug­
gestion represents nothing more than an ingenious

5 The House Report is identical to the Senate Report.



18

effort by counsel to provide a justification for an 
imagined legislative purpose. Even the ingenuity of 
the argument is questionable. The Memorandum sug­
gests that the members of the court in regular active 
service are primarily responsible for its integrity as 
an institution and are in the best position to decide 
when an en banc hearing is needed to harmonize con­
flicting panel decisions or to decide important ques­
tions ; therefore, Congress could reasonably have sought 
to distinguish between participation in the rehearing 
and participation in the vote to order it. But, as the 
Memorandum itself discloses, this is the very same 
argument formerly employed to justify the exclusion 
of retired circuit judges from participation in the re­
hearing itself. Thus an argument that Congress pre­
sumably interred in the Act of 1963 is now resuscitated 
to justify an otherwise undisclosed purpose in that 
very same enactment.

Considered on its merits alone, the argument also 
fails. A  retired circuit judge who participates in the 
initial hearing must obviously familiarize himself with 
any prior decisions that might conflict with the panel’s 
decision. For this reason arguably he would be more 
informed on the need for a rehearing than would the 
court’s other nonparticipating members, who may not 
fully recall or be familiar with these prior, allegedly 
conflicting decisions. Perhaps because he is so in­
formed, Rule 35(b) of the Federal Rules of Appellate 
Procedure wisely permits him to participate fully with 
the other members of the panel in determining whether 
a suggestion for a rehearing en banc will be put to a 
vote of the court. And, for the same reason, 28 U.S.C. 
§ 46(c) authorizes him to participate fully in the re­
hearing itself. Since he may then participate fully in



19

the first and third stages of the rehearing process, his 
deliberate exclusion from the second stage would be in­
consistent, to say the least. The suggestion that Con­
gress reasonably intended this inconsistency is beyond 
belief.

In support of this conclusion, it should be noted 
that while the Court of Appeals for the Second Cir­
cuit has ruled that Congress failed to authorize such 
participation in the second stage, a majority of its 
members regard this omission as inconsistent and 
unfortunate. Zahn v. International Paper Company, 
469 F.2d 1033, 1041, 1042 n. 1 (2d Cir. 1972) (concur­
ring opinion of Judge Mansfield and dissenting 
opinion of Judge Timbers on petition for rehearing 
en banc), aff’d. on the merits, 94 S. Ct. 505 (1973). 
Furthermore, the decision of the Court of Appeals for 
the Fifth Circuit in Allen v. Johnson, 391 F.2d 527 
(5th Cir. 1968), while not specifically in point here,6 
suggests that its members would also support the full 
enfranchisement of these retired judges. In fact, 
during the entire time that the “ problem”  of these 
judges has shuttled back and forth between the Con­
gress and the courts, no significant body of judicial or 
legislative opinion opposing their participation in any

6 This ease held that a retired circuit judge who was a member 
of the initial hearing panel was competent to sit at a hearing or 
rehearing en banc, even though the panel had not announced a 
decision or rendered an opinion in the case. In concluding, the 
opinion stated that “ en banes can be ordered only by active 
judges.”  391 F. 2d at 532. "Whether this dictum represents the 
conclusion that the court would reach after full consideration of 
the question presented here is not as clear as the Memorandum of 
Appellants Moody, et al., and Appellees Williams, et al., p. 10 n. 7, 
unequivocally suggests, especially in view o f that court’s willing­
ness to read § 46(c) expansively on the facts of that ease.



20

stage of the rehearing process has emerged. Surely 
the time has now come for this Court to put an end 
to this demeaning process, by which the capabilities of 
these retired judges have at least impliedly been 
questioned.

Consequently, we would urge that the final sentence 
of § 46(c), which extends to retired circuit judges the 
greater power to participate fully in the rehearing 
en banc, should be read to include by implication the 
lesser, ancillary power to participate in the vote to 
order such a rehearing. Such a reading is clearly not 
beyond the limits of reasonable statutory construction. 
In Allen v. Johnson, 391 F. 2d 531 (5th Cir. 1968), 
the court similarly read the statute expansively to 
reach an analogous result. And as the opinion there 
noted, that court increasingly requires the assistance 
of these judges “ to keep up with its exploding docket 
. . . .”  391 P. 2d at 529. Surely i f  the busy active 
members of the court can profit from the special ex­
pertise of the retired judge in the first and third 
stages of the rehearing process, they can profit as well 
from his participation in the second.

Admittedly, the construction we urge requires a 
certain elaboration of Congressional purpose beyond 
the literal words of the statute. But the judicial role 
is not simply one of literary critic standing in judg­
ment of the works of Congress. Rather, the courts are 
the coequal partners of the legislature in assuring the 
just and sensible elaboration of statutes. As Professor 
Hart and Dean Sacks have stated:

Enacted law may displace decisional law as a 
means of initial formulation of legal arrange­
ments, but not as a means of elaboration. For 
enactments need to be interpreted, and interpre­



21

tation can scarcely be avoided at the stage of 
authoritative application in the decision of par­
ticular controversies. Here the two forms of law 
work in cooperation rather than competition. 7

This Court has, on occasions too numerous to recount 
here, harmonized apparently inconsistent statutory 
words, or declined to give substance to unintended 
negative pregnants. There come to mind im­
mediately the numerous decisions harmonizing and 
interpreting the provisions of the Robinson-Patman 
Act. E.g., Perkins v. Standard Oil Go. of California, 
395 U.S. 642 (1969) ; Federal Trade Commission v. 
Fred Meyer, Inc., 390 IT.S. 341 (1968). More closely 
in point perhaps is the refusal o f the federal courts 
to conclude that the provisions of 28 U.S.C. § 1338(b), 
providing for pendent jurisdiction of “ a claim of 
unfair competition when joined with a substantial and 
related claim under the copyright, patent or trade­
mark laws,”  were intended by negative implication to 
forbid further judicial extension of the doctrine to 
other areas. See United Mine Workers v. Gibbs, 383 
U.S. 715 (1966).

In conclusion, we contend that the construction we 
have urged clearly embodies the true legislative pur­
pose, and that the failure of Congress to make this 
meaning explicit in the final sentence of § 46(e) 
should be regarded, to use the felicitous words of Mr. 
Justice Holmes, as a “ misprision or abbreviation that 
does not conceal the purpose to be gathered from the 
previous and following words.”  St. Louis-San Fran­
cisco B.R. v. Middlekamp, 256 TT.S. 226, 232 (1921). 
Here the other provisions of the Act of 1963 speeifi-

7 H. Hart and A. Sacks, The Legal Process 140 (Tentative Edi­
tion 1958) (emphasis added).



22

cally listing those other powers that retired circuit 
judges were not to exercise cogently supports this con- 
Fred Meyer, Inc., 390 U.S. 341 (1968). More closely 
elusion. 1963 U.S.C. Cong. & Ad. News 1105-06.

CONCLUSION

Appellant, The Albemarle City Board o f Education, 
respectfully urges this Court to decline to answer the 
question certified. Alternatively, if the Court de­
cides to answer the question, it is submitted that the 
proper answer is in the affirmative.

Respectfully submitted,

R ic h a r d  L a n e  B r o w n  I I I
Corner Main and Second Streets 
Albemarle, North Carolina 28001 

Attorney for Appellant Below, 
The Albemarle City Board 
of Education in N. 73-1479

Of Counsel:
R ic h a r d  L . B r o w n , J r .

Corner Main and Second Streets 
Albemarle, North Carolina 28001

M a r t in  B. L ouis  
University of North Carolina 
School of Law
Chapel Hill, North Carolina 27514

C h a r l e s  P .  B r o w n  
Corner Main and Second Streets 
Alberxnarle, North Carolina 28001

February 1974.



8144 -2.74