Rehearing En Banc Granted February 20, 1974.
ON PETITION FOR REHEARING
Our original holding was contained in Part I, "Statutory Requirements," and was that the procedure employed in revoking appellant's parole was improper because only two out of three members of the eight-man Board voted for revocation of his parole, while the statutory mandate, 18 U.S.C. § 4207, and the implementing regulation, 28 C.F.R. § 2.40, call for revocation by the "Board."
Under Part II, "Constitutional Requirements," we engaged in "a brief discussion
(1) Appellees argue that 28 C. F.R. § 2.22 which provides for a quorum of two members of the Parole Board in hearings on granting parole, coupled with the succeeding section, § 2.23, contains language broad enough to apply to revocation hearings. We think section 2.22 applies to hearings on granting parole and not to hearings on revoking parole. While section 2.23 does refer to revocation hearings, it merely sets out a procedure for interested persons to petition before the Hearing Board and does not attempt to designate a two-member quorum. Section 2.40 is clearly the section applicable to parole revocations. That section does not seek to provide that a quorum of the eight-member Board shall be anything less than a majority of that Board. We need not, therefore, discuss the validity vel non of an attempt to provide for a two-member quorum for revocation of parole, for the directives of the Board itself make no such attempt.
On original hearing, we held that the Board's Directive No. 6, 28 C.F.R. § 2.40, and the Board's procedural practice pleaded in this case, quoted in footnote 4 to our original opinion, "relieve us of the necessity of deciding whether or not this Circuit should render a decision contrary to the holding of the Tenth Circuit in Earnest v. Moseley, supra [10 Cir., 1970, 426 F.2d 466, at 469]." Moseley was decided April 14, 1970, rehearing denied May 19, 1970. The present edition of C.F.R. would seem to indicate that on October 1, 1970, the Board issued its Directive No. 6, now appearing at 28 C.F.R. § 2.40. The appellees insist that the substance of section 2.40 existed in similar form years prior to the decision in Moseley and that October 1, 1970, was merely the date of an irrelevant amendment to that section. If that much be granted, we do not think that it affects the validity of our holding. Section 2.40 in its present form was expressly published by the Board as effective on and after October 1, 1970, several months after the decision in Moseley.
We find no sufficient reason to depart from our holding that the procedure employed in revoking appellant's parole did not conform with the then applicable administrative procedure of the Board itself.
The petition for rehearing is denied.
ON PETITION FOR REHEARING EN BANC
Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY, and GEE, Circuit Judges.
BY THE COURT:
A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc.
It is ordered that the cause shall be reheard by the Court en banc on briefs without oral argument.
We adhere to our decision to base that holding on a narrow ground in deference to the holding of the Tenth Circuit in Earnest v. Moseley, 1970, 426 F.2d 466, 469. Nonetheless the doubt which we expressed as to the validity of that holding has been strengthened by the following considerations. Discretion is vested in the eight member Board of Parole (18 U.S.C. § 4201) to revoke an order of parole, terminate the parole, modify its terms and conditions, and require the prisoner to serve all or any part of the remainder of the term for which he was sentenced. (18 U.S.C. § 4207). Federal Trade Commission v. Flotill Products, Inc., 1967, 389 U.S. 179, 183, 184, 88 S.Ct. 401, 19 L.Ed.2d 398, held that absent a contrary statutory provision, the common law rule applies to the ascertainment of the number of members required to act for a collective body. The common law rule, according to that case, is that it requires a majority of a quorum which constitutes a majority of the collective body to act for the body. Under that decision, it would seem that five members would constitute a quorum of the eight member Board and that the discretion vested in the Board could, in no event, be exercised by less than three members constituting a majority of that quorum.