Case Files -- Fifth Circuit Court of Appeals En Banc Opinions, Court Term 1969-1970

File — Folder: 8

Identifier: Folder 8

Staff Only

Household Goods Carriers' Bureau v. Terrell No. 25,989; 452 F.2d 152 (1971), rev'g 417 F.2d 47(1969), later appeal 494 F.2d 16, reh. den. 496 F.2d 878, cert, dism'd 419 U.S. 987 (1974) With Judge Wisdom absent, the court construed F.R.A.P. 35 so to dismiss the rehearing in this case as having been improvidently granted. Judge Wisdom objected to such a construction of the rule by the judges, whom he viewed as acting as the judicial council rather than an en banc court, and to the resultant dismissal. He protested as well the participation of Judge Jones in the vote, and the fact that Judges Thornberry, who had recused himself, and Carswell, who was not in attendance, did not participate. Chief Judge Brown then suggested that the order to vacate the rehearing be deferred until the matter had been resolved. Judges Thornberry, Jones, Clark, Dyer and Simpson responded, taking exception to the position of Judge Wisdom. Judge Thornberry maintained that his recusation was required, as he had had the case before him as a district judge. Judge Jones defended his vote as having been cast in the capacity of judge, properly a member of the en banc court, and not as a member of the judicial council. Judges Clark, Dyer and Simpson agreed on both courts with the former two judges. Chief Judge Brown next decided to treat Judge Wisdom's complaint as a request for reconsideration by the court en banc. He accordingly polled the judges as to whether they would reconsider their prior vote to remit the case to the panel, as to whether Judge Jones had a right to participate in the decision to remit, and as to whether Judge Jones had a right to participate in the very poll then underway. Judges Dyer, Bell, Simpson and Gewin objected to tha poll and declined to return their respective ballots. Judge Jones likewise protested. The suggested poll was still being disputed when Judge Coleman, as a member of the earlier en banc court, submitted a new request for reconsideration en banc. Judge Jones objected, to no avail, as Chief Judge Brown proceeded to circulate ballots among the judges. The vote as to whether Household Goods should be reconsidered resulted in a tie, with or without the votes of Judges Jones and Wisdom. Judge Clark, however, as suggested by Chief Judge Brown, withdrew his vote and recast it, decisively, in favor of reconsideration. The en banc court would then be convened, with Judge Wisdom taking part inâ€ƒconsideration of the merits of the appeal. Includes memoranda of Judge Ingraham on the respective positions of the judges in en banc conference. Also includes TLS of Judge Wisdom on denial of en banc rehearing by the court and on reconsideration of the decision to deny rehearing as appropriate. And includes TLS of Chief Judge Brown, TLS of Judge Thornberry/ TLS of Judge Jones, TLS of Judge Clark/ TLS of Judge Dyer and TLS of Judge Simpson (bearing holograph notes of Judge Wisdom) on the stated position of Judge Wisdom. And includes TLS of Chief Judge Brown (bearing holograph notes of Judge Wisdom) on the Wisdom request and on possible reconsideration by the court of its action en banc; and, TLS of Judge Dyer, TLS of Judge Bell (bearing holograph notes of Judge Wisdom), TLS of Judge Jones, TLS of Judge Simpson and TLS of Judge Gewin on the request of Chief Judge Brown that the judges vote. And includes memoranda on the poll, among which, TLS of Judge Coleman on reconsideration of the case by the court en banc as appropriate. And includes TLS of Judge Wisdom on the action of the court en banc, on his previous request, and on reconsideration of the case en banc as appropriate; and, TLS of Judge Coleman on en banc reconsideration as appropriate. And includes draft opinion dissenting from the action of the court en banc (bearing holograph revisions) of Judge Wisdom. And includes TLS (3) of Judge Jones, TLS of Chief Judge Brown, TLS of Judge Simpson, TLS of Judge Wisdom and TLS of Judge Coleman on the Coleman request and the ensuing poll. And includes memoranda on the en banc poll, among which, TLS of Chief Judge Brown on the results, and, TLS of Judge Clark on his changed vote. And includes holograph notes of Judge Wisdom on the respective conference positions of the judges. And includes opinion as first proposed by Judge Gewin; TLS (2) of Judge Simpson and TLS of Judge Coleman on the proposed opinion of Judge Gewin; TLS of Chief Judge Brown on the Gewin opinion and on certain changes in it as appropriate; and TLS of Judge Gewin on revision of his proposed opinion as suggested by Chief Judge Brown. See also 462;1; 656:13.