declining to hear issue urged for first time to panel in reply brief and reasserted in supplementary brief to court en banc; otherwise party raising argument on en banc rehearing would "be allowed to deprive the panel of the ability to address the issue first"
How later courts described this case
- declining to hear issue urged for first time to panel in reply brief and reasserted in supplementary brief to court en banc; otherwise party raising argument on en banc rehearing would "be allowed to deprive the panel of the ability to address the issue first"
- reading Concrete Pipe "to reject the argument that there is a denominator issue involved in non-physical property rights cases”
- acknowledging, and agreeing with, the concurrence’s opinion that “§ 480 does provide for concurrent federal-state jurisdiction”
- “[U]nless a plaintiff expressly disavows an ‘as-applied’ challenge, the complaint that a regulation is invalid should be construed, if possible, as an as- applied challenge.”
Written by the judges who cited it.
The opinion
ORDER
The en banc court is equally divided in this case. Seven members favor affirmance of the judgment of the District Court, and seven favor reversal. Hence, as is customary under such circumstances, the judgment of the District Court is affirmed by an equally divided vote.
The mandate will not issue for fourteen (14) days from the date of this order so that members of the court may file any separate opinions they wish to. *
This Order was originally filed on June 24, 1996, and is now being reissued for full-text publication with a separate concurring opinion by Judge MOORE (pp. 1269-1272), in which Chief Judge MERRITT and Judge DAUGHTREY joined, and a separate dissenting opinion by Judge BOGGS (pp. 1272-1306), in which Judges NORRIS, SUHRHEINRICH, and BATCHELDER joined.