Moody v. Albemarle Paper Co.

Background

Two appeals in the Fourth Circuit were decided by three-judge panels that included senior (retired) judges designated to sit on those panels. After the panels issued rulings, the losing parties asked the full circuit to rehear the cases. The Fourth Circuit had sometimes counted the votes of senior judges when deciding whether to grant a rehearing, and in these two appeals those senior judges’ votes would have been decisive.

Reasoning

The Court was asked to decide whether a senior judge who sat on the original panel may vote on whether the full circuit should rehear the case. The Court reviewed the statutory history, earlier decisions, and the language of 28 U.S.C. §46(c). It explained that Congress limited the authority to order a rehearing to circuit judges who are in “regular active service.” Although Congress later allowed a senior judge who sat on the original panel to participate in the merits rehearing, that amendment did not give senior judges the power to vote on the administrative decision to call a rehearing. The Court therefore concluded that senior judges are not authorized to participate in the vote to rehear a case before the full court.

Real world impact

Courts of appeals must no longer count retired or senior judges when voting on whether to rehear a case before the full court. This changes internal court procedures and can affect whether parties obtain full-court rehearings, as shown in the two Fourth Circuit appeals. The ruling resolves that procedural question for the Fourth Circuit and guides other circuits that have followed the same practice.