Federal Procedure – Appellate Practice – Duty of the Court of Appeals to Grant Rehearings En Banc

In a suit for accounting, petitioners were denied relief in the district court and a division of the Court of Appeals for the Ninth Circuit affirmed by a two-to-one vote. Petitioners then applied for a rehearing before the court of appeals en bane. With one dissent, the rehearing was denied by the division, and the request that the rehearing be en bane was stricken as “being without authority in law or in the rules or practice of the court.” Petitioners moved to vacate the order denying the request for a rehearing en bane on the ground that such a request was authorized by statute and required the attention of the full court. The court of appeals, en bane, refused to consider the motion on its merits. On certiorari from the Supreme Court, held, orders of the division and full court vacated and cause remanded for further proceedings. Though petitioners have no statutory right to compel each member of the full court to give formal consideration to an application for a rehearing en bane, the procedure adopted by the court of appeals for the exercise of the en bane power should not arbitrarily deny consideration of a litigant’s suggestion that his case is an appropriate one to be heard by the full court. Western Pacific R. Corp. v. Western Pacific R. Co., 345 U.S. 247, 73 S.Ct. 656 (1953).