the issue which the plaintiff's application requires me to decide.
Until the 1937 enactment of the present provisions of section 2284, the judge to whom the original application for relief was submitted decided preliminarily whether the case required a three-judge court and, if he so determined, then selected two other judges to sit with him.
On its face, the present section 2284 has changed that situation only in charging the chief judge of the circuit with the responsibility to designate the two additional judges after the original judge has notified him that a three-judge court is needed. The advantage of such a change is obvious since the administrative function of assigning circuit and district judges to three-judge courts as need arises from time to time throughout a circuit can be discharged more systematically and in a more informed way by the circuit chief judge than by every trial judge who has a case requiring such designations. If a greater change than this was intended by the narrow statement of the chief judge's role in section 2284, something should appear to indicate that intention.
It may well be that, since section 2281, authorizes statutory three-judge courts only in stated circumstances, a circuit chief judge, advised by a district judge that in his judgment a particular case requires a three-judge court should determine for himself that the statute applies to that case before constituting a statutory court.
But this provides no escape from the fact that section 2284 as enacted does not assign the circuit chief judge any role whatever, administrative or decisional, until a trial judge shall have requested him to act in a particular case.
Such considerations led Chief Judge Biggs, the acute long-time chief judge of this circuit, to conclude that "* * * if the district judge to whom the application is made decides that the case is not of a kind requiring a three-judge statutory court, then the chief judge of the circuit has no judicial function to perform".
The same conclusion has been reached in the District of Columbia Circuit by Chief Judge Prettyman and by Acting Chief Judge Fahy.
It was Judge Fahy's view that "[if] the District Judge erred in not notifying the Chief Judge to convene a three-judge court under section 2284, the error is not correctible by applying to the Chief Judge of the Circuit to convene a three-judge court. The statute contains no provision for such procedure, and there is no basis for judicially importing it into the statute". 283 F.2d at 370 (footnote omitted).
On the other hand, in the Fifth Circuit, Chief Judge Brown has reached a contrary result.
The case was an unusual one in which the court of appeals had been petitioned to mandamus a district judge to compel him to request the convening of a three-judge court. Thereafter, instead of the court of appeals acting in the mandamus proceeding, the chief judge, on his own initiative and despite the absence of a request by the district judge, convened a three-judge court, relegating to it the entire responsibility of deciding whether it was needed, and reasoning in substance that this seemed the most sensible and expeditious way of avoiding time-consuming review of one district judge's determination that a three-judge court was not required. One may share such proper concern with the time-consuming character of appeals without finding statutory warrant for this method of avoiding them.
I find no sufficient justification for departing from the ruling of Chief Judge Biggs in his Fiumara opinion. Accordingly, the plaintiff's motion that the chief judge of the circuit convene a statutory court of three judges to hear and decide this case is denied.