WESTERN PAC. R. CORP. V. WESTERN PAC. R. CO., 345 U. S. 247 (1953)

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U.S. Supreme Court

Western Pac. R. Corp. v. Western Pac. R. Co., 345 U.S. 247 (1953)

Western Pacific Railroad Corp. v. Western Pacific Railroad Co.

No. 150

Argued December 116, 1952

Decided April 6, 1953*

345 U.S. 247


1. Referring to a United States Court of Appeals, 28 U.S.C. § 46(c) provides that

"Cases 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."


(a) This statute is simply a grant of power to order hearings and rehearings en banc and to establish the procedure governing the exercise of that power. Pp. 345 U. S. 250-259, 345 U. S. 267.

(b) Litigants are given no statutory right to compel each member of the court to give formal consideration to an application for a rehearing en banc. Pp. 345 U. S. 256-259, 345 U. S. 267.

(c) The statute does not compel the court to adopt any particular procedure governing the exercise of the power; but, whatever procedure is adopted, it should be clearly explained, so that the members of the court and litigants in the court may become thoroughly familiar with it. Pp. 345 U. S. 259-261, 345 U. S. 267.

(d) Whatever procedure is adopted, it should not prevent a litigant from suggesting to those judges who, under the procedure established by the court, have the responsibility of initiating a rehearing en banc, that his case is an appropriate one for the exercise of the power. Pp. 345 U. S. 261-262, 345 U. S. 268.

2. Having lost their case in a three-judge division of a Court of Appeals, petitioners applied for a rehearing before the Court of Appeals en banc. The division of three judges denied rehearing and struck as unauthorized by law or practice the request that the rehearing be en banc. Petitioners then applied for leave to file a motion to reinstate their petition for rehearing en banc, claiming that such a request was authorized by statute and required

Page 345 U. S. 248

the attention of the full court. The Court of Appeals, en banc, declined to entertain this second application and announced that thereafter each petition for rehearing en banc in a case determined by a division of three judges would be considered and disposed of by such division of three judges as an ordinary petition for rehearing.


(a) The order of the division denying petitioners a rehearing and the order of the full court denying petitioners leave to file a motion to reinstate their petition for rehearing en banc are vacated, and the case is remanded to the Court of Appeals for further proceedings. Pp. 345 U. S. 263-267.

(b) On remand, and in the light of this Court's interpretation of the statute and the basic requirements necessary for its efficient administration, the Court of Appeals should determine and clearly set forth the particular procedure it will follow henceforth in exercising its en banc power. P. 345 U. S. 268.

(c) If the Court of Appeals chooses to abide by a procedure which entrusts the initiation of rehearings en banc to the division, then the court should give an opportunity to the division for appropriate consideration of that question in this case. P. 345 U. S. 268.

197 F.2d 1012, 1013, order vacated and cause remanded.

In petitioners' suit for an accounting, relief was denied by the District Court. 85 F.Supp. 868. A division of the Court of Appeals affirmed, 197 F.2d 994, and denied rehearing and struck a petition that rehearing be en banc. 197 F.2d 1012. Sitting en banc, the Court of Appeals declined to entertain a petition for leave to file a motion to reinstate the petition for rehearing en banc. 197 F.2d 1013. This Court granted certiorari. 344 U.S. 809. Orders vacated and cause remanded, pp. 345 U. S. 267-268.

Page 345 U. S. 249

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