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fed-sec-l-rep-p-95472-s-william-green-v-santa-fe-industries-inc , 533 F.2d 1309 ( 1976 )


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  • 533 F.2d 1309

    Fed. Sec. L. Rep. P 95,472
    S. William GREEN et al., Plaintiffs-Appellants,
    v.
    SANTA FE INDUSTRIES, INC., et al., Defendants-Appellees.
    Arnold MARSHEL, Plaintiff-Appellant,
    v.
    AFW FABRIC CORPORATION et al., Defendants-Appellees.
    Barry L. SWIFT, Plaintiff-Appellant,
    v.
    CONCORD FABRICS, INCORPORATED, et al., Defendants-Appellees.

    Nos. 75-7256 and 75-7404.

    United States Court of Appeals,
    Second Circuit.

    March 10, 1976.

    KAUFMAN, Chief Judge, and GURFEIN, Circuit Judge did not participate in the poll.

    PER CURIAM.

    1

    This Court has denied en banc, 2 Cir., 523 F.2d 1277, not because we believe these cases are insignificant, but because they are of such extraordinary importance that we are confident the Supreme Court will accept these matters under its certiorari jurisdiction, as we correctly anticipated in Eisen v. Carlisle & Jacquelin, 479 F.2d 1005, 1020 (2d Cir. 1973), vacated, 417 U.S. 156, 94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974).

    2

    Even under the best of circumstances, an en banc proceeding is often an unwieldly and cumbersome device generating little more than delay, costs, and continued uncertainty that can ill be afforded at a time of burgeoning calendars. A case in which Supreme Court resolution is inevitable should not be permitted to tarry in this Court for further intermediate action, at best, except when the views of this Court would be of real benefit to the Supreme Court. And, en banc is particularly inappropriate and unsatisfactory in the cases before us, since two of our active judges are disqualified from participating. With four senior judges sitting if these cases had been en banced, the law of the circuit might well be charted with the concurrence of only a minority of the active judges defeating the very purpose the en banc procedure is designed to serve.

    3

    Moreover, the applications for certiorari that we expect inexorably to follow our action will not reach the Supreme Court devoid of the views of the judges of this Court. In contrast to the Pentagon Papers case where this Court convened en banc but, due to urgent considerations of time, did not write opinions these cases will go to the Supreme Court with full and thoughtful expositions of the opposing views of several members of this Court.

    4

    Accordingly, we speed these cases on their way to the Supreme Court as an exercise of sound, prudent, and resourceful judicial administration.