United States v. Sentinel Fire Ins. Co. , 178 F.2d 217 ( 1949 )

HOLMES and McCORD, Circuit Judges

(dissenting).

This court necessarily takes judicial notice of the proceedings in this case and of its own membership. Consequently, it knows that this case was heard before a duly constituted court in bank consisting of all six active judges of the court, except one who on account of illness did not participate in the hearing. Likewise, it knows that one of the majority judges who participated in the decision has since retired, effective October 1, 1949; that the judge who was ill died in July, 1949; and that successors to fill both vacancies were appointed in October, 1949.

The four active judges remaining upon the court, who participated in its decision, are equally divided as to what action should be taken upon the petition for rehearing now pending in this case, two of said judges being in favor of granting, and two in favor of denying, said petition. The retired judge is not competent to participate in the decision of the petition for rehearing because of Section 46(c) of the Judicial Code, 28 U.S.C.A. § 46(c), which provides that a court in bank shall consist of all the active judges of the circuit. Section 294(d), 28 U.S.C.A. § 294 (d), provides that no retired judge shall perform judicial duties except when designated and assigned. It is therefore apparent that a retired judge is not eligible to sit upon a hearing in bank, even by special designation of the chief judge. Since there are six active judges who constitute the court in bank, the petition for rehearing should be submitted to them. No other judge except a circuit justice, is qualified to sit on this court in this case, since the duly constituted court in bank has heretofore been ordered by a majority of the judges.

Two judges are not authorized to deny a petition for rehearing in this case. A judgment of this court does not become final until after the time allowed for the filing of a petition for rehearing; and, when said petition has been filed, the judgment does not become final until the same has been denied. Clearly it takes a majority of the judges constituting a quorum of the court to make any order or to apply any rule. See Rules 29 and 32 of the rules of this court.