Page:Jim Yovino, Fresno County Superintendent of Schools v. Aileen Rizo.pdf/4

4 Judge Medina took senior status. When the en banc court issued its decision, the majority opinion was joined by Judge Medina and two active Circuit Judges; the two other active Circuit Judges dissented. We vacated the judgment and remanded the case, holding that “[a]n ‘active’ judge is a judge who has not retired ‘from regular active service,’ ” and “[a] case or controversy is ‘determined’ when it is decided.” 363 U. S., at 688. Because Judge Medina was not in regular active service when the opinion issued, he was “without power to participate” in the en banc decision. Id., at 687, 691; cf., id., at 691–692 (Harlan, J., dissenting).

Our holding in American-Foreign S. S. Corp. applies with equal if not greater force here. When the Ninth Circuit issued its opinion in this case, Judge Reinhardt was neither an active judge nor a senior judge. For that reason, by statute he was without power to participate in the en banc court’s decision at the time it was rendered. In addition to §46(c), §46(d) also shows that what the Ninth Circuit did here was unlawful. That provision states: "“A majority of the number of judges authorized to constitute a court or panel thereof, as provided in paragraph (c), shall constitute a quorum.”"

Under §46(c), a court of appeals case may be decided by a panel of three judges, and therefore on such a panel two judges constitute a quorum and are able to decide an appeal–provided, of course, that they agree. Invoking this rule, innumerable court of appeals decisions hold that when one of the judges on a three-judge panel dies, retires, or resigns after an appeal is argued or is submitted for decision without argument, the other two judges on the panel may issue a decision if they agree. See, e. g., United States v. Allied Stevedoring Corp., 241 F. 2d 925, 927 (CA2 1957); Murray v. National Broadcasting Co., 35 F. 3d 45,