United States Life Insurance Co. v. Delaney, 1962

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No. 19,531; 308 F.2d 484 (1962), vac'd 358 F.2d 714, cert. den. 385 U.S. 846, reh. den. 385. den. 385 U.S. 943 (1966) Delaney was originally argued before and decided by the panel comprised of Judges Wisdom, Cameron and Gewin. Judge Cameron wrote the opinion for the majority; Judge Wisdom stayed the mandate of the court to allow appellant to apply for a writ of certiorari. Judge Wisdom stayed it a third, fourth, and fifth and final time. Paul Revere Life Insurance Co., v. First National Bank in Dallas, 328 F.2d 483 (1964) was argued before Judges Brown and Bell, and Judge Simpson, then a District Judge. Of the opinion that Delaney was otherwise controlling in Paul Revere, but incorrectly decided, the Paul Revere panel requested an en banc court. A majority of the judges approved the request. Judge Bell proceded to submit a proposed opinion in Paul Revere which would effectively have overruled Delaney. Judge Brown concurred in this opinion, provided the Delaney would be expressly overruled. Judge Jones objected to the opinion, withdrew from further consideration of the cases, and circulated a dissent. Judge Cameron also indicated that he would dissent, contending that only Paul Revere, and not Delaney, was properly before the en banc court -- that the stays entered in Delaney had been entered solely for the application for certiorari to the Supreme Court, and not for reconsideration of the case by the Court of Appeals. Judge Gewin thought the cases distinguishable in any event, and concurred in the en banc opinion in Paul Revere on the condition that no mention of Delaney be made in it. Judges Hutcheson and Rives agreed with Gewin; Judges Bell, Tuttle and Wisdom thought the Paul Revere opinion should at least refer to Delaney. Judge Cameron circulated a dissent, and Judge Gewin circulated a special opinion, concurring in part and dissenting in part, to be filed in the event that his suggestion was not adopted by the court. This, Judge Gewin was later to withdraw, instead to file a dissent. Judge Cameron opined that the original panel in Delaney was the body to reconsider the case, and circulated a per curiam order of the panel to deny rehearing, vacate the stays and order that the mandate issue. Judge Gewin concurred. Judge Wisdom responded that Delaney had been submitted to the court en banc, was properly before the entire court, and that consideration of Paul Revere was dispositive of both cases. Judge Bell urged the opinion in Paul Revere be filed, and forwarded it to the clerk for printing. Judge Cameron likewise filed the Order in Delaney. The Delaney panel's order filed, Judge Rives then moved that Delaney be heard en banc, and that it be reversed per curiam, on Paul Revere. Judges Brown and Tuttle agreed. Judge Cameron argued that the stays granted in Delaney had expired, and that the court no longer had jurisdiction in that case. Judge Wisdom maintained that Delaney had been submitted to the court en banc, that the stays were pertinent to en banc submission, that the case was then before the court, and that there was authority to support a ruling in Delaney, notwithstanding any lapse of stay. Judge Jones, with whom Judges Rives and Brown agreed, then suggested that the court abstain, and refer the litigants to the Texas state courts. Judges Bell, Gewin and Hutcheson disagreed, and urged that the Paul Revere opinion not be held up. Judge Bell relieved himself of further responsibility in Paul Revere, as the court voted to withhold the opinion in that case pending referral to and decision by the Texas courts. Judge Jones submitted that until the court minutes showed that both cases had been before the court for en banc considereation, an order to abstain could not be entered. The entries made, Judge Jones submitted a per curiam opinion to abstain. A majority agreed. Judge Bell submitted a dissent. The opinions not yet filed, awaiting Judge Brown's special concurrence, appellee filed an application for judgment. Thes was denied, and the court issued its opinion to abstain. The case was brought before the Texas court, which ruled itself without jurisdiction. Before the Court of Appeals again took up the case, Judge Cameron had died, and Judges Thornberry and Coleman had joined the court. Judge Tuttle suggested that Paul Revere be disposed of along the lines of Judge Bell's original opinion, that Delaney not be overruled, but that it cited in the Paul Revere opinion as not in conflict with the latter. Judge Wisdom reasserted his belief that the cases were undistinguishable, the position ultimately adopted by the court. Includes TL of Judge Wisdom on his dissenting panel opinion and on the merits; TL of Judge Cameron on the merits on petition for rehearing; TL of Judge Wisdom on the purpose of his dissent from the panel's denial of rehearing; TLS of Judge Bell on the merits in the panel's denial of rehearing; TLS of Judge Bell on the merits in Paul Revere and Delaney, and on en banc consideration in both cases as approriate; and, TL of Judge Hutcheson, TLS of Judge Brown and TLs of Judge Gewin on the merits in the two cases and en banc request. Also includes proposed opinion of Judge Bell in Paul Revere; TLS of Judge Bell on his proposed opinion and the position and conditional concurrence of Judge Brown; proposed dissenting opinion of Judge Jones; TLS (2) of Judge Jones on his proposed dissent; TLS of Judge Bell, TLS of Judge Brown, and TLS of Judge Gewin on the position of Judge Jones; and, TL of Judge Cameron on the original panel opinion in Delaney, the proposed Bell opinion, and the merits. And includes TLS (2) of Judge Gewin on Delaney and Paul Revere as distinguishable; TLS of Judge Hutcheson, TLS of Judge Bell, TLS of Judge Rives, TLS of Judge Jones, TL of Judge Cameron, and TLS of Chief Judge Tuttle on on the Gewin position; proposed dissent of Judge Cameron; proposed opinion of Judge Gewin, concurring in part and dissenting in part; and, TLS of Judge Bell and TLS of Judge Gewin on the respective positions and concurrences of the judges. And includes TL (3) and TLS of Judge Cameron on reconsideration of Delaney, of at all, by the original panel and not the en banc court, as appropriate, and on denial of rehearing and issuance of the mandate by the panel as appropriate; TL (2) of Judge Wisdom on the Cameron position; TLS of Judge Bell on the respective positions and concurrences of the judges in the two cases; and, TL and TLS of Judge Cameron and TL and TLS of Judge Wisdom on the filing of the panel's Order in Delaney. And includes TLS of Judge Rives on the merits in Delaney and on en banc reconsideration of the case as appropriate; and, TLS of Judge Brown and TLS of Chief Judge Tuttle on the motion of Judge Rives. And includes TLS (3) of Judge Jones on abstaining in Delaney and Paul Revere as appropriate; TLS (2) of Judge Rives, TLs (2) of Judge Brown, TLS (2) of Judge Bell, TLS and TL of Judge Hutcheson, TLS and TL of Judge Gewin and TLS of Chief Judge Tuttle on submitting Delaney en banc, on the Wisdom-Cameron intrapanel conflict, on the doctrine of abstention as applicable to the cases, and on withholding the opinion in Paul Revere pending the outcome in the Texas state courts. And includes TLS (4) of Judge Jones, TLS (2) of Chief Judge Tuttle, TL (2) of Judge Cameron, TLS of Judge Brown, TLS (2) of Judge Gewin, TLS (2) of Judge Bell, and TLS and TL of Judge Hutcheson, on the abstention opinions, and on appellee's application for judgment. And includes TLS of Judge Brown and TLS of Chief Judge Tuttle on the Texas court rulings; TLS (2) of Judge Gewin, TL (and holograph draft) of Judge Wisdom, TLS (2) of Judge Jones, TLS of Judge Rives, and TLS of Judge Bell on the merits in Delaney following dismissal by the Texas court. And includes TLS of Judge Tuttle, and TLS (and draft) of Judge Wisdom on the respective positions of the judges and the opinion to be written in Paul Revere; and, TLS of Judge Bell, TL of Judge Wisdom, TLS of Judge Brown, TLS of Judge Rives and TLS of Chief Judge Tuttle on the proposed majority opinion of Judge Bell; TLS of Judge Bell on revision of his opinion; TLS and TL of Judge Gewin on his dissenting opinion; and, TL of Judge Wisdom to Judge Gewin on the position of the former in these cases. And includes TLS of Professor Charles Alan Wright, Harvard Law School. on Delaney, on abstention, generally, and on congressional effort to enlarge the 5th Circuit Court of Appeals, generally; and, TLS of Judge Brown to Wirght on Delaney, and on Lord, The Day That Would Not Die. See also 152:1; 451:4.