United States Court of Appeals

               FOR THE DISTRICT OF COLUMBIA CIRCUIT

                      Filed February 1, 2002

                           No. 00-5016

                            ---------

                 The Honorable John H. McBryde, 
              United States District Judge for the  
                   Northern District of Texas, 
                            Appellant

                                v.

         Committee to Review Circuit Council Conduct and 
       Disability Orders of the Judicial Conference of the 
                     United States, et al., 
                            Appellees

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     BEFORE:  Ginsburg, Chief Judge,  Edwards, Sentelle, 
Henderson, Randolph, Rogers, Tatel and Garland, Circuit 
Judges.

                            O R D E R

     Appellant's petition for rehearing en banc and the response 
thereto have been circulated to the full court.  The taking of 
a vote was requested.  Thereafter, a majority of the judges of 
the court in regular, active service did not vote in favor of the 
petition.  Upon consideration of the foregoing, it is

     ORDERED that the petition be denied.

                                   Per Curiam

                                                       FOR THE COURT:

                                                       Mark J. Langer, Clerk

                                             BY:

                                                       Michael C. McGrail

                                                       Deputy Clerk

      

      

     Circuit Judges Sentelle, Rogers and Tatel would grant 
the petition for rehearing en banc.

     A statement of Circuit Judge Tatel dissenting from the 
denial of rehearing en banc, in which Circuit Judge Sentelle 
joins, is attached.

     Circuit Judges Edwards, Randolph and Garland did not 
participate in this matter.

     Tatel, Circuit Judge, with whom Sentelle, Circuit Judge, 
joins, dissenting from denial of rehearing en banc:

     In my view, this case warranted en banc review because 
the panel's decision conflicts with well-established precedent 
of both the Supreme Court and this circuit.  In Webster v. 
Doe, the Supreme Court held "that where Congress intends 
to preclude review of judicial claims, its intent to do so must 
be clear. ...  We require this heightened showing in part to 
avoid the 'serious constitutional question' that would arise if a 
federal statute were construed to deny any judicial forum for 
a colorable constitutional claim."  486 U.S. 592, 603 (1988) 
(quoting Bowen v. Mich. Acad. of Family Physicians, 476 
U.S. 667, 681 n.12 (1986)).  See also Griffith v. Fed. Labor 
Relations Auth., 842 F.2d 487, 494-95 (D.C. Cir. 1988);  Un-
gar v. Smith, 667 F.2d 188, 193 (D.C. Cir. 1981);  Ralpho v. 
Bell, 569 F.2d 607, 620-21 (D.C. Cir. 1977).  Here, the panel 
reads section 372(c)(10) to preclude review of Judge 
McBryde's as-applied constitutional claims even though the 
statute contains no language expressly barring review, and 
even though the legislative history may as easily be read to 
permit as to preclude federal court jurisdiction over such 
challenges.  See McBryde v. Comm. to Review Circuit Coun-
cil Conduct & Disability Orders of the Judicial Conference of 
the United States, 264 F.3d 52, 73-76 (D.C. Cir. 2001) (Tatel, 
J., dissenting).  According to the panel, the purported "sub-
stantial redundancy" between review by an Article III court 
and by the Judicial Conference reflects Congress's intent to 
preclude review of as-applied constitutional claims.  Id. at 62.  
This position, however, rests not on primary evidence from 
the legislative history itself, but on a secondary inference 
drawn from the structure of the Act, and thus does not 
amount to the kind of "clear and convincing" evidence re-
quired by the Supreme Court and this circuit.  See Johnson 
v. Robison, 415 U.S. 361, 371-75 (1974) (limiting its analysis 
of legislative history to affirmative statements of congression-
al intent);  see also Griffith, 842 F.2d at 494-95 (same);  
Ungar, 667 F.2d at 193-96 & 195 n.2 (same);  Ralpho, 569 
F.2d at 620-22 (same).  I respectfully dissent from the denial 
of rehearing en banc.