Moody v. Albemarle Paper Company Brief for Moody, et al. and Williams, et al.

    In t h e

(tart at %  InttrJi ^tatrs
October Term, 1973 

No. 73-899

JOSEPH P. MOODY, et al.,

—vs—

ALBEMARLE PAPER COMPANY, et al.

BAXTER K. WILLIAMS, et al.,

—vs—

ALBEMARLE CITY BOARD OF EDUCATION.

ON CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

BRIEF FOR MOODY, ET AL., AND WILLIAMS, ET AL.

Conrad 0. Pearson
2031/2 E. Chapel Hill Street 
Durham, North Carolina

Thomas T. Clayton
307 W. Franklin Street 
Warrenton, North Carolina

Of Counsel
A lbert J. Rosenthal 

435 West 116th Street 
New York, N.Y. 10025

J. LeVonne Chambers 
Robert Belton

East Independence Plaza 
951 S. Independence Blvd. 
Charlotte, North Carolina 28202

Jack Greenberg 
James M. Nabrit, III 
Norman J. Chachkin 
Morris J. Baller 
Barry L. Goldstein 
Joseph P. Hudson

10 Columbus Circle 
Suite 2030
New York, New York 10019

Attorneys for Moody, et al., and Williams, et al.



I N D E X

PAGE

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

Jurisdiction ........ ....... ... .......................................—-....... 2

Statutory Provisions Involved .............  2

Question Presented ..........   3

Statement ..........................................      3

Argument ........................................................................  6

I. The Language and Legislative History of the 
Applicable Provisions Exclude Senior Judges 
From Voting ...........    6

II. Compelling Policy Reasons Deriving From The 
Purpose And Nature of EnBanc Hearings, The 
Status of Senior Judges, And The Need For 
Consistent Appellate Practice Support The 
Plain Language of The Statute and Rule ....... 10

1. The Purpose of En Banc Hearings and the
Status of Senior Judges ...............................  10

2. The Policy of Uniformity ...........................  13

Conclusion...................       17

Appendix A—Certificate of the United States Court
of Appeals for the Fourth Circuit....... A -l

Appendix B—Results of Survey of Practices in the
Various Circuits .....................................  B-l



11

T able of A uthorities

Cases: page

Allen, v. Johnson, 391 F.2d 527 (5th Cir. 1968) ......... 12,15

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ........ 3

Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S.
713 (1962) ...........  13

Moody v. Albemarle Paper Co., 474 F.2d 134 (4th Cir. 
1973) ..............................................................................  1,4

Shenker v. Baltimore & Ohio R. Co., 374 U.S. 1 (1963) 14

Textile Mills Security Corp. v. Commissioner, 314 U.S.
326 (1941) ..............   6

United States v. American-Foreign Steamship Corp.,
363 U.S. 685 (1960) .....................................7,10,11,14,16

Western Pacific Railway Corp. v. Western Pacific
Railway Co., 345 U.S. 247 (1952) .......... ..................  14

Williams v. Albemarle City Board of Education, 485 
F.2d 232 (4th Cir. 1973) ............................................. 2,4

Zahn v. International Paper Co., 469 F.2d 1032 (2nd 
Cir. 1973), aff’d on merits 94 S.Ct. 505 (1973) .......15,16

Statutes and Rules:

28 U.S.C. §43(b) ............................................................  11

28 U.S.C. §46(c) .............. 2, 3, 6, 7, 8, 9,10,12,13,14,15,17
28 U.S.C. §294(c) ..........................................................  11

28 U.S.C. §295 .....................   12



Ill

PAGE

28 U.S.C. §1254(3) .........................................................  2
28 U.S.C. §1292(b) ............ ............................. ............... 13
28 U.S.C. §2284 ............................. .................................  13
42 U.S.C. §1983 .................. ............................................. 3

42 U.S.C. §2000e et seq., Title VII, Civil Eights Act 
of 1964 .................................................... ,.......................  3

Federal Buies of Appellate Procedure, Rule 35 .....2, 3, 7, 9,
12,13,15,16,17

Rule 35(a) ...........................   9
Rule 35(b) ........................................................  9

Federal Rules of Appellate Procedure, Rule 4 7 ..........  16

P.L. 88-176, 77 Stat. 331, “Judges—Status After 
Retirement” (1963) .............. ................................... .

Other:

Advisory Committee Note to F.R.A.P. Rule 35, 43 
F.RD. 61 (1967) ...................................... ...... ......... . 9

House of Representatives Report No. 95, 88th Cong.,
1st Sess. (1963) ..............    8

Note, En Banc Hearings in the Federal Courts of Ap­
peals: Accommodating Institutional Responsibilities,
40 N.Y.U.L. R ev. 562 (1965) ........ ......... .....................  11

Senate Report No. 596, 88th Cong., 1st Sess. (1963) .... 8

United States Code Cong. & Administrative News, 88th 
Cong., 1st Sess. (1963) 8



IV

United States Court o f Appeals Local Rules page

First Circuit Rule 1 6 ................................................  14
Third Circuit Rule 2(3) .............. ............................  15

Eighth Circuit Rule 7 ...................................... .......  15
Ninth Circuit General Order No. 15 .......... ...... ......  15



I n  the

B upm n?  QJmtrt rtf tljr flutters Stairs
October T erm , 1973 

No. 73-899

J oseph P . M oody, et al.,

—vs.—

A lbemarle P aper Company, et al.

B axter K. W illiams, et al.,

—vs.—

A lbemarle City  B oard of E ducation.

on certification from the  united states court of appeals

FOR THE FOURTH CIRCUIT

BRIEF FOR MOODY, ET AL., 
AND WILLIAMS, ET AL.

Opinions Below

The opinions of the Court of Appeals for the Fourth 
Circuit are as follows:

1. The opinions of the panel in the Moody action, en­
tered February 20, 1973, reported at 474 F.2d 134.



2

2. The opinion of the panel in the Williams action, en­
tered October 1, 1973, reported at 485 F.2d 232.

3. The Certificate of the Court of Appeals, filed Decem­
ber 6, 1973, unreported. (The Certificate is set out in the 
Brief Appendix, A. 1-2.)

Jurisdiction

The Certificate of the Court of Appeals was entered on 
December 6,1973. The jurisdiction of this Court is invoked 
pursuant to 28 U.S.C. §1254(3). On January 14, 1974, this 
Court granted leave to, and invited the parties to, file briefs 
on the certified question on or before February 13, 1974.

Statutory Provisions Involved

This matter 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 banc 
is ordered by a majority of the judges of the circuit 
who are then in regular active 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 of a case or contro­
versy if he sat in the court or division at the original 
hearing thereof.

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

(a) When Hearing or Rehearing In Banc Will Be 
Ordered. A majority of the circuit judges who are in



3

regular active service may order that an appeal or 
other proceeding he heard or reheard 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 proceeding involves a question of exceptional 
importance.

(b) Suggestion of a Party for Hearing or Rehearing 
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 sug­
gestion made by a party.

Question Presented

The question certified by the Court of Appeals for the 
Fourth Circuit in these cases is:

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

Statement

A. The Moody case is a class action attacking systemic 
practices of racial discrimination under Title YII of the 
Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq. The 
case arose at a paper manufacturing mill, and centers on



4

allegations that the defendants engaged in employment 
discrimination by utilizing unnecessary testing and edu­
cational requirements and maintaining a “lock-in” seniority 
system. The plaintiff class seeks injunctive relief and a 
compensatory back pay award.

The district court found discrimination in the seniority 
system and the educational requirements, but held the 
testing program lawful under Griggs v. Duke Poiver Co., 
401 TJ.S. 424 (1971), and denied back pay in the exercise of 
its discretion. On appeal, a panel of the Fourth Circuit 
consisting of Judge Craven and Senior Judges Boreman 
and Bryan reversed the district court’s testing ruling, find­
ing the testing program not demonstrably job-related, and 
also reversed the denial of back pay, holding that the trial 
court’s discretion had been abused. 474 F.2d 134.

On June 25, 1973 the Court of Appeals granted the 
defendants’ petitions for rehearing and ordered rehearing 
en banc. After filing of supplemental briefs by all parties, 
the Court en banc, including Judges Boreman and Bryan, 
heard oral argument on October 2, 1973. The problem 
raised by the Certificate intervened before any decision of 
the en banc Court on the merits could be reached.

B. Williams, a black high school principal’s employment 
discrimination action brought under 42 U.S.C. §1983, arose 
in the context of the desegregation of a dual school system. 
The plaintiff lost his job during the desegregation process. 
The district court found that he had suffered racial dis­
crimination, and the panel of the Court of Appeals, includ­
ing Senior Judge Bryan, affirmed.

The panel, however, vacated the trial court’s back pay 
award to plaintiff. The panel based its decision, entered 
October 1, 1973, on the duty to mitigate damages, and con­
strued that duty to require acceptance of a demotion. 485



5

F.2d 232. A petition for rehearing, with suggestion for 
rehearing en banc, has been filed by the plaintiff. This 
petition is being held in abeyance pending resolution of 
the certified question.

C. The Certificate indicates that a majority of judges 
in regular active service voted against rehearing the Moody 
matter en banc, but that with the inclusion of the votes of 
the two senior judges who sat on the panel, a majority of 
the votes were counted in favor of rehearing en banc. (A. 
I ).1 The Certificate further indicates that if the en banc 
Court reaches the merits, it will probably modify the panel’s 
decision regarding back pay (Id.). With respect to 
Williams, the Certificate states that a majority of the judges 
in regular active service favor granting a rehearing en 
banc, but if the vote of the Senior Judge who sat on the 
panel is counted the en banc rehearing will be denied by an 
equal division of the judges (A. 1-2). The Court of 
Appeals has not ruled on the suggestion for rehearing en 
banc, pending resolution of the certified question (Id.).

The facts or merits of the two cases are in no way in­
volved in the resolution of the issue framed by the Certifi­
cate. It is nevertheless apparent that the Fourth Circuit’s 
resolution of the back pay issue in both cases will turn on 
the answer to the certified question (A. I ).2

1 Citations in this form are to pages of Brief Appendix A. Cita­
tions in the form “B. — ” are to Brief Appendix B.

2 If the question is answered in the negative, the Moody panel 
decision would apparently stand, since the en banc Court would 
have been improperly convened; and in Williams the district 
court’s decision would probably be affirmed by an equally divided 
en banc Court. If the question is answered in the affirmative, or 
the Fourth Circuit’s custom allowed to apply, the Moody panel 
decision would be modified and the Williams panel decision would 
stand.



6

ARGUMENT

Senior Circuit Judges, Although They May Sit On 
An Initial Hearing Panel, Are Not Entitled To Vote 
On The Determination Of Whether A Case Should Be 
Heard En Banc.

I.
The Language and Legislative History of the Ap­

plicable Provisions Exclude Senior Judges From Voting.

Section 46(c) of the Judicial Code, Title 28 U.S.C., 
controls the practice here in question. On its face, the 
first sentence of 28 TJ.S.C. §46(c) states that only “ circuit 
judges of the circuit who are in regular active service” 
are competent to vote on a suggestion of rehearing en tone. 
Congress did not, however, simply fail to turn its atten­
tion to the role of Senior Judges in en banc proceedings. 
The third sentence of §46(c), concerning participation on 
rehearing en banc once the rehearing has been granted, 
specifically provides for inclusion of a “ circuit judge of 
the circuit who has retired from regular active service . . . 
[who] sat in the court at the original hearing thereof.” 
Other than the power to participate once rehearing has 
been ordered, the statute gives no other power to Senior 
Judges.

The legislative history of §46(c) supports this plain 
reading of the statutory language. The present Section 
is the result of a 1963 amendment of the previous provision, 
which dated from the 1948 revision of the Judicial Code. 
The 1948 statute had clarified the Courts of Appeals’ power 
to constitute themselves en banc, by legislatively adopting 
Textile Mills Security Corp. v. Commissioner, 314 U.S. 
326 (1941). It did not explicitly address the question of



7

the role of Senior Judges upon rehearing. A decision of 
this Court thereafter construed §46 (c), as it then read, to 
preclude the participation of Senior Judges as part of 
the Court en banc, once rehearing en banc had been or­
dered, even where the Judge had been a member of the 
initial panel (and had retired following the panel decision). 
United States v. American-Foreign Steamship Corp., 363 
U.S. 685 (I960).3 In that opinion, this Court openly invited 
Congress to change that result legislatively, 363 U.S. at 
690-691. In 1963, Congress enacted P.L. 88-176, 77 Stat. 
331, “Judges—Status After Retirement” , “An Act to clarify 
the status of circuit and district judges retired from 
regular active service” . The enactment amended, inter 
alia, §46 (c), modifying slightly its then-existing two sen­
tences, and adding a third which changed the American- 
Foreign result by providing for participation of Senior 
Judges of the Circuit who had sat on the panel, once the 
en banc rehearing is ordered.

It is significant that Congress examined and slightly 
redrafted the first sentence, which states the conditions 
upon which en banc rehearings may be ordered, without

3 In American-Foreign, this Court held squarely that where a 
determination was committed by law to a majority of active judges, 
a Senior Judge might not participate in it, whether or not he had 
been a member of the panel. While the precise ruling of that case 
—that such a Senior Judge could not vote in rendering an en banc 
decision once rehearing by the full court had been ordered—has 
been changed by Congress, there has been no similar legislative 
change in the provision applicable to the question certified herein. 
Indeed, the commitment, to active judges only, of the power to 
decide whether to have an en banc hearing or rehearing has been 
reaffirmed by Rule 35, Federal Rules of Appellate Procedure 
(1967). See p. 9, infra. American-Foreign is clear authority 
that where the law prescribes “ active judges” , Senior Judges may 
not participate— and that is precisely the question raised by the 
Certificate herein.



8

mentioning Senior Judges.4 The purpose of the 1963 
amendment of §46(e) was only to “permit such a [Senior] 
Judge to sit on a rehearing en banc of a case where he 
participated at the original hearing thereof,” and spe­
cifically to reverse American-Foreign. S. Rep. No. 596, 
88th Cong., 1st Sess.; H.R. Rep, No. 95, 88th Cong., 1st 
Sess. (1963), reprinted in U.S. Code, Cong. & Administra­
tive News, 88th Cong., 1st Session, pp. 1105-1106.5

The purpose of P. L. 88-176 was not to effect a general 
reform of judicial practice regarding rehearings en banc, 
but to clarify the status of Senior Judges. Other sections 
dealt with such matters as the exclusion of Senior Judges 
from participation in the appointment of officers of the 
court, promulgation of rules of the court, and membership 
in the judicial conference of the circuit. See S. Rep. No. 
596, H.R. Rep. No. 95, supra. Clearly, the Congressional 
intent was to delineate specifically what functions Senior 
Judges might and might not perform. In this context, 
the express language limiting voting on whether to order 
an en banc hearing to judges “ in regular active service”, 
but permitting Senior Judges of the circuit who had sat

4 Indeed, the change in language from “active service” to “regular 
active service” was apparently intended to remove an ambiguity 
as to whether a Senior Judge might still be regarded as “active” . 
See the letter from the Administrative Office of the U.S. Courts, 
included in the committee reports recommending adoption of P. h. 
88-176, quoted in U.S. Code Cong. & Administrative News, 88th 
Cong., 1st Sess., p. 1107. The additional word made clear that 
irrespective of their service on panels, Senior Judges were not to 
be regarded as “active judges” and therefore not to be included 
among those who could vote on whether to rehear a ease en banc.

6 The same Senate-House report quoted here continues, shortly 
after the cited passage:

It is believed that [a] Judge who has sat on an issue in an 
appellate hearing on which a rehearing has been ordered 
should be a member of the court for rehearing purposes. (Id.) 
(emphasis supplied)



9

on the panel to participate in the decision if an en banc 
hearing was ordered, reflects a line carefully drawn by 
Congress.

The text of Rule 35, Federal Rules of Appellate Proce­
dure, points with equal clarity to the same conclusion.6 
Rule 35(a) provides for en banc sittings only when a 
“majority of the circuit judges who are in regular active 
service” so order. Rule 35(b) directs that the clerk, upon 
receipt of a party’s suggestion of a rehearing en banc, 
“shall transmit any such suggestion to the judges of the 
court who are in regular active service” . The framers of 
the Rule clearly intended thereby not to authorize Senior 
Judges from the panel to vote on the question of whether 
to convene an en banc court. This becomes plain from the 
next sentence of Rule 35(b), which specifically allows 
Senior [or other] Judges who sat on the panel to request 
a vote on a party’s suggestion of en banc consideration. 
Similarly, the Advisory Committee’s Note to Rule 35 states 
that

The rule merely authorizes a suggestion, imposes a 
time limit on suggestions for rehearings en banc, and 
provides that suggestions will be directed to judges of 
the court in regular active service.

43 F.R.D. 61, 153 (1967).

All the statutory provisions point to the same result : 
Senior Judges may not participate in the determination of 
whether a case will be heard or reheard en banc.

6 Rule 35, like the other Federal Rules of Appellate Procedure, 
was not designed to modify or amend the substance of underlying 
legislation such as §46 (c), but to implement it.



10

II.
Compelling Policy Reasons Deriving From The Pur- 

Pose And Nature Of En Banc Hearings, The Status Of 
Senior Judges, And The Need For Consistent Appellate 
Practice Support The Plain Language Of The Statute 
And Rule.

1. The Purpose Of En Banc Hearings and the 
Status of Senior Judges.

Sound judicial policy dictates a negative answer to the 
certified question. The principal purpose of providing for 
en banc rehearing of panel decisions is to assure consistency 
of the law within a circuit, or as this Court has put it,

To enable the court to maintain its integrity as an insti­
tution by making it possible for a majority of its judges 
always to control and thereby to secure uniformity and 
continuity in its decisions.

United States v. American-Foreign Steamship Corp., supra, 
363 U.S. at 689-690. This purpose is not served, and may 
well he hindered, by allowing Senior Judges to participate 
in the determination of when a panel decision is so out of 
line with the views of the majority of the Court responsible 
for its “integrity as an institution”—the active members 
of the Court—that review by the whole court becomes 
necessary.7

7 In American-Foreign the Court wrote that “ Congress may well 
have thought that it would frustrate a basic purpose of the legis­
lation not to confine the power of en banc decision to the permanent 
active membership of a Court of Appeals,”  363 U.S. at 689. As 
shown at pp. 6-8 supra, nothing in the text or legislative history 
of the 1963 amendment to §46 (c) indicates that Congress had 
changed its mind, with respect to the narrow issue posed by the 
present Certificate.



11

The ongoing general responsibility for the judicial work 
of the circuit is vested in the active judges.8 They have the 
continuing duty to develop and apply the law in cases that 
will be adjudicated in the future. This Court in American- 
Foreign described active judges as being “those charged 
with the administration and development of the law” , 363 
U.8. at 689, and recognized approvingly that

the evident policy of the statute [old §46] was to 
provide ‘that the active circuit judges shall determine 
the major doctrinal trends of the future for their 
court........’ 363 U.S. at 690

(quoting opinion in same case below, 265 F.2d 136, 155 (2nd 
Cir. 1957). Circuit judges in regular active service also 
are most directly aware of the problems of calendar con­
gestion in the circuit, and are in the best position to 
balance the burdens imposed on the time of additional 
judges by an en banc hearing against the advantages of 
establishing a clear and uniform rule for the circuit.9

In contrast, retired Circuit Judges do not exercise the 
same continuing responsibility for the work of the Court 
as a whole.10 The rationale for retired judges’ participation

8 28 U.S.C. §43 (b) states flatly, “ Each Court of Appeals shall 
consist of the circuit judges of the circuit in regular active service.” 
In contrast, §43 (b) provides that Senior Circuit Judges may 
participate to a limited extent in the work of the circuit: “ [t]he 
circuit justice and justices or judges designated or assigned shall 
also be competent to sit as judges of the court.”

9 See also Note, En Banc Hearings in the Federal Courts
of Appeals: Accommodating Institutional Responsibilities, 40
N.Y.U.L. Rev. 562, 574 et seq. (1965).

10 See n. 8, supra. Senior Judges sit pursuant to 28 U.S.C. 
§43(b) only when “designated or assigned” . A retired judge may 
be “ designated and assigned” by the Chief Judge of the Circuit 
“to perform such duties as he is willing and able to undertake” 
pursuant to 28 U.S.C. §294(c). Section 294(c) provides, “No re­
tired justice or judge shall perform judicial duties except when



12

at en banc rehearings of causes in which they sat on the 
panel is significantly different from the rationale for the 
en banc proceeding as a whole. Chief Judge Brown of the 
Fifth Circuit has articulated the principal reason as “ the 
benefit which the entire Court obtains from the prior work, 
research, study and deliberation done by a Senior Judge 
during his (and his two colleagues’ ) initial consideration 
of the case.” Allen v. Johnson, 391 F.2d 527, 531 (5th Cir. 
1968) j see also id. at 529. This rationale, however, comes 
fully into play only after the decision to convene en banc 
has been made, when the whole court addresses the merits 
of the case before it with full deliberation.11

There is no general policy to the effect that all judges 
who participate in a panel decision of a court of appeals 
are necessarily to play a part in either the vote on whether 
to order a rehearing en banc or the decision if such a re­
hearing is ordered. Court of Appeals panels often include 
district judges, circuit judges from other circuits, and 
retired Supreme Court Justices, none of whom are au­
thorized to play any further role in connection with any 
subsequent en banc action. Thus, participation on a panel

designated and assigned.” From this statutory scheme, it is ap­
parent that Senior Judges of the Circuit are not regarded as mem­
bers of the court generally, but have a separate, limited status. 
See also 28 U.S.C. §295 (assignment and designation of Senior 
Judges to sit may be revoked).

11 Moreover, the advantages to be drawn from a Senior Judge’s 
deliberations while on the panel are not cast away by his non­
participation in the vote whether to convene the court en banc. 
Section 46(c) nowhere limits, and Rule 35 specifically recognizes, 
the authority of Senior Judges to recommend en banc proceedings 
or to call for a vote of the active judges on such a suggestion. In 
fact, the practice of most circuits appears explicitly to confer this 
power on Senior Judges who were panel members. See Brief Ap­
pendix B.

And of course, a Senior Judge who sat on the panel will always 
participate in the vote on a petition for rehearing by the panel.



13

should not itself entitle a judge to participate in all further 
proceedings on the case.12

2. The Policy of Uniformity.

The certified question is of general importance and 
nationwide applicability.13 Congress has approved a 
statute, 28 U.S.C. §46 (c), and this Court has promulgated 
a Rule, F.R.A.P. Rule 35, which are national in scope and 
call for uniform application.14 * * The basic issue as to the 
composition of the Courts of Appeals in voting whether to 
constitute themselves en banc should not be left to the 
accidents of local custom or even, conceivably, to ad-hoc 
determination by a succession of courts of changing com-

12 Differentiation between the judges designated to decide 
whether a case is to be reviewed and the judges who decide on 
the merits after review is granted is not uncommon in federal 
judicial practice. One example is the requirement of 28 U.S.C. 
§1292(b) that the recommendation of the district judge making 
an interlocutory order not otherwise appealable is a prerequisite 
to the discretionary power of the court of appeals to hear the 
appeal. Another is the procedure required by 28 U.S.C. §2284 in 
proceedings for an injunction against operation of a state statute. 
A  single district judge initially determines whether the action 
requires a three-judge district court, Idlewild Bon Voyage Liquor 
Corp. v. Epstein, 370 U.S. 713, 715 (1962); but once that judge 
so rules, the Chief Judge of the circuit must designate the two 
other judges to sit on the district- court. 28 U.S.C. §2284(1). And 
in many state judicial systems, a lower court may grant leave to 
appeal to a higher court.

13 As the Certificate recites, “Were the answer to the question 
in each case of importance to the litigants only, the judges of the 
Court of Appeals for the Fourth Circuit, sitting en banc, could 
decide it, . . . The question, however, involves more than the rights 
of the litigants, for the duties and responsibilities of some of the 
judges of the court are in issue and relative powers of participation 
are at stake.” (A. 2)

14 Indeed, these provisions have been applied uniformly by the
different Circuits—with the single exception of the Fourth. See
pp. 14-15, infra.



14

position.15 Uniformity of procedure in the appellate courts 
on this point is both intended and desirable.

The Fourth Circuit’s local custom of allowing Senior 
Judges who sat on the panel to participate in the determina­
tion whether to hear the case en banc is inconsistent with 
the practice of all the other circuits.16 The First,17

16 The line of decisions by this Court holding that the Courts of 
Appeals should have authority to formulate and administer their 
own procedural rules concerning rehearings en banc does not 
imply otherwise. See, e.g., Western Pacific Bailway Cory. v. West­
ern Pacific Railway Co., 345 U.S. 247 (1952) ; United States v. 
American-Foreign Steamship Corp., 363 U.S. 685 (1960); Shenker 
v. Baltimore & Ohio B. Co., 374 U.S. 1 (1963). The Western 
Pacific decision, which fathered the line, specifically dealt with the 
purely “house-keeping” functions of the Court of Appeals, 345 
U.S. at 255-256. The Court there expressly stated that “ the full 
membership of the court will be mindful, of course, that the statute 
commits the en banc power to the majority of active circuit 
judges. . . .”  345 U.S. at 261. That case and the following decision 
in Shenker revolved essentially around the purely procedural 
question of whether a litigant can dictate to an appellate court 
what method it shall use to determine whether a majority of active 
judges desire en banc consideration. (Specifically, the question was 
whether each active judge of the court was required to vote on 
the suggestion for en banc consideration.) The Court concluded 
that the administrative machinery for determining whether a 
majority of the active judges of the court favored an en banc 
hearing was the appeals courts’ own “house-keeping” business, 
as the 1948 Judicial Code Reviser had contemplated. It nowhere 
questioned the assumption that the majority involved was of 
active circuit judges only. The American-Foreign case had nothing 
to do with the issue as to how an en banc hearing may be convened; 
it dealt only with the competency of a retired judge to sit on the 
rehearing en banc on the merits of the case. 363 U.S. at 688. 
Moreover, the result in American-Foreign was specifically over­
ruled by Congress in the 1963 amendment to 28 U.S.C. §46 (c).

16 Brief Appendix B summarizes the responses of the Courts of 
Appeals to a polling by the undersigned counsel with respect to 
their practice regarding the certified question. In some instances 
the responses merely set forth answers given to counsel for Albe­
marle Paper Company who apparently conducted a similar survey.

17 See First Circuit Local Rule 16, particularly 16(e) (B. 1).



15

Second,18 Third,19 Fifth,20 Seventh,21 Eighth,22 Ninth,23 24 25 
and District of Columbia21 Circuits each follow a rule or 
practice of not permitting Senior Judges to vote on this 
question. The Sixth"5 and Tenth26 27 * Circuits have never had 
occasion to consider the question and therefore have no 
established practice. No other Circuit follows the Fourth 
Circuit’s interpretation of §46 (c) and Rule 35.

Since eight other circuits have determined that section 
46(c) and Rule 35 preclude the practice followed by the 
Fourth Circuit,"7 this Court can serve the goal of uniformity 
of practice as well as the intent of Congress by answering

18 See letter from Chief Deputy Clerk of the Second Circuit 
dated January 31, 1974 (B. 1), and see Zahn v. International 
Paper Co., 469 F.2d 1033, 1040-1041 (2nd Cir. 1973) (on petition 
for rehearing en lane), aff’d on merits 94 S.Ct. 505 (December 17,

“ See letter from Chief Deputy Clerk of the Third Circuit 
dated January 31, 1974; and see Local Buie 2(3) (B. 2).

20 See letter from Chief Deputy Clerk of the Fifth Circuit 
dated January 31, 1974 (B. 2-3); and see Allen v. Johnson, 391 
F.2d 527, 532 (1968).

21 See letter from Clerk of the Seventh 
1974 (B. 4). Circuit, dated February 6,

22 See Eighth Circuit Local Rule 7, adopted effective July 1 
1973 (B. 4). y ’

23 See Ninth Circuit General Order No. 15 and letter from Hon 
Albert T. Goodwin (B. 4-5).

24 See letter from Clerk of the District of Columbia Circuit 
dated January 25, 1974 (B. 5).

25 See letter from Clerk of the Sixth 
1974 (B. 4).

Circuit, dated January 29,

26 Advice by telephone call from Clerk of Tenth Circuit to office 
of undersigned counsel, February 11, 1974.

27 Indeed, the Certificate indicates that the practice of the Fourth
Circuit may not have been premised upon full deliberation. Its 
“custom” , although “thought reasonable” , apparently had not been 
subject to a “close examination” of §46 (c) and Rule 35 (A. 2)



16

the certified question in the negative. The Federal Rules 
of Appellate Procedure adopted by this Court require such 
an answer.28

For the reasons summarized above, it is clear that the 
Fourth Circuit’s custom contravenes sound policies as to 
the nature of the en banc process and the distinction be­
tween active and retired judges, as well as the policy of 
consistency in appellate practice.29

28 While the Fourth Circuit’s informal “custom” has not been 
specifically included in its own rules, it should be noted that Rule 
47 of the Federal Rules of Appellate Procedure permits local rules 
“not inconsistent with these rules” . The Fourth Circuit practice 
is clearly inconsistent with Rule 35. If it could not validly be 
embodied in a formal rule, it can scarcely be permitted to stand as 
an informal practice.

29 But even if the Fourth Circuit’s practice were desirable, it 
would be contrary to present law. This Court has indicated that 
change, if any, must come by statute, when it upheld the plain 
meaning of the old, flawed §46 (c) as being correct although not 
desirable in United, States v. American-Foreign Steamship Corp., 
supra, at 490-491. (After that decision, Congress addressed and 
resolved the problem in an appropriate manner, see pp. 7-8 supra.) 
Likewise, the dissenters in Zahn v. International Paper Co., supra, 
n. 18, while not disputing what present §46 (c) means and vigor­
ously expressing their dissatisfaction with that meaning, joined 
the prevailing judges in calling for Congressional review of what 
the latter described as “ its apparent inconsistency,” 469 F.2d 
1041, 1042 n.l.



17

CONCLUSION

The Fourth Circuit’s practice is not reconcilable with 
Rule 35 of the Federal Rules of Appellate Procedure or 
with 28 U.S.C. §46(c), its history or purpose. This Court 
should therefore answer the certified question in the nega­
tive.

Respectfully submitted,

J. L eV on ne Chambers 
R obert B elton

East Independence Plaza
951 S. Independence Boulevard
Charlotte, North Carolina 28202

J ack Greenberg 
J ames M. Nabrit, III 
N orman J. Chachkin  
M orris J. B aller 
B arry L. Goldstein 
J oseph P. H udson

10 Columbus Circle 
Suite 2030
New York, New York 10019

Conrad O. P earson

203% E. Chapel Hill Street 
Durham, North Carolina

T homas T. Clayton

307 W. Franklin Street 
Warrenton, North Carolina

Attorneys for Moody, et al., and Williams, et al. 
Of Counsel
A lbert J. R osenthal 

435 West 116th Street 
New York, New York 10025



APPENDIX



A-l

APPENDIX A

Certificate of the United Slates Court of Appeals 
for the Fourth Circuit

[caption omitted]

CERTIFICATE
The Judges of the United States Court of Appeals for 

the Fourth Circuit, pursuant to the provisions of 28 U.S.C. 
§1254(3), respectfully certify the following question to 
The Supreme Court of the United States:

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

The question is of determinative importance in each of 
the cases.

In Moody, two senior circuit judges were members of 
the original hearing panel and participated in the decision. 
Upon a suggestion of a rehearing en banc, each voted for 
it. Though a majority of the judges in regular active ser­
vice did not vote for an en banc rehearing, the votes of 
the two senior circuit judges were counted providing a 
majority of the counted votes in favor of rehearing en banc. 
On that basis, a rehearing was ordered and held, the two 
senior judges participating in the hearing as provided 
in 28 U.S.C. § 46. If the en banc court reaches the merits, 
the tentative vote is that it will modify the panel decision 
with respect to an award of back pay.

In Williams, one senior circuit judge was a member of 
the initial hearing panel. Upon a suggestion of a rehear­
ing en banc, he is opposed. A majority of the judges in 
regular active service is in favor of an en banc rehearing, 
but if the vote of the senior circuit judge is counted, the



A-2

suggestion will fail by an equal division of the judges. 
No formal order has been entered on the petition for re­
hearing with a suggestion for rehearing en banc, because 
the question of the right of the senior circuit judge to 
vote arose. The panel had reversed an award of damages 
by the district court, but if the voting on the petition for 
rehearing is an accurate prediction, the en banc court, if 
it reaches the merits of the appeal, probably would affirm 
the district court by an equally divided court.

In the Court of Appeals for the Fourth Circuit, the 
custom has been to count the votes of senior circuit judges 
who were members of the initial hearing panel when the 
court was polled on the question of en banc rehearing. 
This was thought reasonable since the voting senior cir­
cuit judge would be a member of the en banc court if re­
hearing were granted. In earlier cases, however, the vote 
of the senior circuit judge or judges was not crucial. The 
fact that it is crucial in these two cases occasioned a close 
examination of the statute and the rule, and a look at 
Zahn v. International Paper Co., 2 Cir., 469 F.2d 1033, 
1040-42, and Allen v. Johnson, 5 Cir., 391 F.2d 527, 532.

Were the answer to the question in each case of impor­
tance to the litigants only, the Judges of the Court of 
Appeals for the Fourth Circuit, sitting en banc, could 
decide it, though in Williams v. The Albemarle City Board 
of Education, there is a possibility of an equal division of 
the court. The question, however, involves more than the 
rights of the litigants, for the duties and responsibilities 
of some of the judges of the court are in issue and relative 
powers of participation are at stake.

The execution of this Certificate has been authorized by 
the two senior circuit judges and by all of the judges in 
regular active service.

s / Clement F. H aynsworth

Chief Judge, Fourth Judicial Circuit



B-l

APPENDIX B
Results of Survey of Practices in the 

Various Circuits
First Circuit:

Rule 16. Petition for En Banc Consideration

Supplementing FRAP Rule 35, the following requirements 
shall apply:

(a) Each application shall be submitted, with six copies.
(b) No application will be received until the ease has been 

determined by a three-judge panel.
(c) No application will be granted if the panel’s decision 

is unanimous, regardless of the number of opinions filed.
(d) No application will be granted unless one of the judges 

on the panel approves.
(e) If application is granted, a senior judge will sit if, but 

only if, he was on the panel.
(f)  I f the application is granted, the ultimate decision will 

be that of the majority of the active judges.

Second Circuit:
[Letterhead and inside address omitted]

January 31, 1974
Dear S ir:

In reply to the request contained in yours of January 29, 
1974 received today, the practice in this court is not to per­
mit the senior Circuit Judges who were members of the initial 
hearing panel to vote when the court is polled on the question 
of granting an in banc hearing.

The practice in this court is as Judge Mansfield stated in 
his concurring opinion in Zahn v. International Papers Com­
pany, 469 F.2d 1033, 1041, “ . . . that a senior judge who 
heard an appeal as a panel member may not participate in 
ordering it to be heard in banc, . . . . ”

Sincerely yours,
A. Daniel Fusaro 

Clerk
/ s /  V incent A. Carlin
by Vineent A. Carlin 

Chief Deputy Clerk



B-2

Third Circuit:
Rule 2 (3)
Court and Divisions— Number of Judges to Sit— Court 

In Banc. Cases and controversies are 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 in regular active service. 
The court in banc consists of all the circuit judges in regu­
lar active service. A  senior circuit judge of the circuit is 
competent to sit as a judge of the court in bane in the re­
hearing of a case or controversy if he sat in the court or 
division at the original hearing thereof.

[Letterhead and inside address omitted]
January 31, 1974

Dear Mr. Mittelman:
Your letter of January 29, 1974, to Mr. Quinn has been 

received during his absence from the office today. However, 
since he just answered a similar question for an attorney in 
Richmond, Virginia, I am forwarding you his statement in 
that letter which was as follows:

“In this Court, the only votes counted where the question of 
rehearing en banc is presented to the Court are the votes 
of active circuit judges. Senior judges do not vote on the 
question of rehearing en banc.”

Very truly yours,
/ s /  M. Elizabeth Ferguson 

M. Elizabeth Ferguson,
Chief Deputy Clerk

Fifth Circuit:
[Letterhead and inside address omitted]

January 31, 1974 
En Banc Rehearings 

Dear Mr. Mittelman:
Responding to the inquiry contained in your letter of Janu­

ary 29, 1974 as to the practice of this Court of participation 
by Senior Circuit Judges of the Circuit in polls on the ques­
tion of granting an en bane rehearing, I am authorized by



B-3

the Chief Judge to advise that the practice in the Fifth Cir­
cuit is that only active Judges of the Circuit participate in 
the poll. However, if the case is put en bane, and a Senior 
Judge of this Circuit sat as a member of the hearing panel 
he would participate in the consideration of the case en bane.

Sincerely yours,
Edwabd W. W adsworth 

Clerk

By / s /  Gilbert F. Ganucheau 
Gilbert F. Ganucheau 
Chief Deputy Clerk

Sixth Circuit:
[Letterhead and inside address omitted]

January 29, 1974
Re : Bn Banc Rehearings 

Dear Mr. Lowden:
This is in response to your letter of January 21, 1974, 

regarding the practice in this court in considering sugges­
tions for rehearing en banc in cases on which a Senior Circuit 
Judge was a member of the original hearing panel. As I 
understand your inquiry, you are specifically interested in 
whether or not a Senior Circuit Judge who is a member of 
the original hearing panel is entitled to vote in the determina­
tion of the question whether or not the case should be reheard 
en banc.

As I am sure you have already determined, the Sixth Cir­
cuit has no rule regarding this question. Moreover, insofar 
as I am able to determine, the question of whether a Senior 
Circuit Judge who was a member of the initial hearing panel 
is entitled to vote in the determination of the question whether 
or not the case should be reheard en banc has never been 
presented to or decided by the court. Accordingly, I would 
have no basis for making any representation concerning the 
court’s practice in this regard.

Very truly yours,
/s / James A. Higgins

James A. Higgins, Clerk



B~4

Seventh Circuit:
[Letterhead and inside address omitted]

February 6, 1974
Dear Mr. Mittelman:

In our Court the Senior Circuit Judge who was a member 
of the initial hearing panel may request that a vote be taken 
on a party’s suggestion that a rehearing be had in banc. How­
ever, such Senior Circuit Judge may not participate in such 
a vote if and when one is taken.

I know I answered this same question for another attorney 
in the Moody case about two weeks ago. I cannot remember 
his name, but it could be your opposing counsel.

Very truly yours,
/ s /  Thomas F. Strubbe 

Thomas F. Strubbe 
Clerk

Eighth Circuit:
Rule 7. Hearing and rehearing in banc. A  party or a 

judge of this court in regular active service may suggest that a 
case or controversy be heard or reheard in banc. A. majority of 
the judges of this court in regular active service who are 
actively participating in the affairs of the court and are not 
disqualified in the particular case or controversy may order 
a hearing or rehearing in banc. The panel for the hearing or 
rehearing consists of the judges of this court in regular active 
service who are actively participating in the affairs of the 
court at the time of the hearing or rehearing and are not 
disqualified in the particular case or controversy and the 
senior circuit judges of this circuit who sat at the original 
heai’ing thereof unless the senior circuit judges elect not to 
sit at the rehearing in banc.

Ninth Circuit:
Practice in the Ninth Circuit is governed by General Order 

No. 15—In Banc Hearings. This document, which is not a 
published local rule, is lengthy and, to the undersigned coun­
sel, somewhat unclear on the point in question here. It does 
provide, in part—

“ 2. Panel recommendations for a rehearing in banc.
Should the panel to which a case has been assigned deter­
mine, sua sponte, or upon consideration of a suggestion by



B-5

a party or of a member of the Court, or of a member of 
the panel, that the case should be reheard in banc or that 
the members of the court in active service should decide 
whether the case should be so reheard, it shall:

(1) send a memorandum to the Chief Judge so advising 
him, indicating why this course is appropriate, and should 
provide him with a sufficient number of copies so that the 
Chief Judge may distribute the memorandum to all mem­
bers of the Court in active service; . .

Because this and other provisions of the General Order do 
not indicate with certainty what the Ninth Circuit’s practice 
is, the office of the undersigned counsel requested clarification 
by the Honorable Albert T. Goodwin, Circuit Judge and In 
Banc Expediter of the Ninth Circuit. Judge Goodwin sent 
the following letter:

[letterhead and inside address omitted]
February 8, 1974

Dear Mr. Mittelman:
The practice of the Ninth Circuit is to allow Senior Judges 

who sat on the original panel to request a rehearing in banc. 
The vote on granting a rehearing is limited to the judges in 
active service. If a rehearing is granted, a Senior Judge who 
sat on the panel of decision is entitled to sit with the court 
in banc and to record his vote, 28 U.S.C. §46(c), Gen. Order 
15, Ninth Circuit Internal Operating Orders.

Yours very truly,
/ s /  A lfred T. Goodwin 

Alfred T. Goodwin 
United States Circuit Judge

Tenth Circuit:
[No written response to this polling.]

District of Columbia Circuit:
[Letterhead and inside address omitted]

January 25, 1974
In R e : En Banc Rehearings 
Dear Mr. Lowden:

Reference is made to your letter of January 21, 1974 in­
quiring into this Court’s procedure with respect to suggestions 
for rehearing en banc.



B-6

The practice followed by this Court is that a Senior Cir­
cuit Judge of this Court, if he was a member of the original 
three-judge panel, may call for a vote with respect to a 
suggestion for rehearing en banc, but he can not vote thereon. 
In the event a majority of the Judges of this Court in active 
service vote for rehearing en banc, the Senior Circuit- Judge 
can participate in the case with the en banc Court.

Sincerely yours,
/ s /  H. Kline

Hugh E. Kline 
Clerk



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