Petition — Uzzell v. Friday

IN THE %

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

79-121%

NO.

LAWRENCE A. UZZELL and

ROBERT LANE ARRINGTON,

Individually, and upon behalf

of all other similarly situated, et al.,

Petitioners,

WILLIAM C. FRIDAY, Individually,

and as President of the University of

North Carolina, etal.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HUGH JOSEPH BEARD, JR.

P. O. Box 30263

Charlotte, N. C. 28230

(704) 375-8679

Counsel for Petitioners

TENNESSEE LAW PRINTERS, P. 0. Box 277, Knoxville, Tennessee, Phone 525-4202

1-31-80-65

I A a

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QUESTIONS PRESENTED .............

CONSTITUTIONAL PROVISIONS AND STATUTES

ee

STATEMENT OF THE CASE ...........

REASONS FOR GRANTING THE WRIT ......

CONCLUSION ...... a

APPENDIX A — Letter of May 29, 1979 ......

APPENDIX B— Order of the United States Court

of Appeals for the Fourth Circuit,

entered November 9, 1979 ....

Table of Cases

Allan v. Johnson,

391 F.2d 527 (Sth Cir. 1968)......... °

Ex Parte Ward,

EO a

Baldwin v. Iowa State Traveling Men's

Association ,

I cw ek tt te

Glidden Company v. Zdanok,

EO Ee

Greater Boston Television Corp. v. F.C.C.

S60 F.20 See G0. Cer. 1971) . 2 ww we

rene

12

10

11

ll

Haney v. Chesapeake & Ohio R.R.

498 F.2d 987 (D.C. Cir. 1974)...

Hazel-Atlas Glass Co. v. Hartford-Empire Co.

332 U.S. 238 (1943) ....

Iverson v. Commissioner,

257 F.2d 408 (8th Cir. 1958) ....

Legate v. Maloney,

348 F.2d 164 (Ist Cir. 1965) .......

McDowell v. United States,

See ee RS area re

Marbury v. Madison,

1 Cranch (U.S.) 137 (1803) ...

Peck v. Sanderson,

59 U.S. 42 (1835S) 2 ww cw

Perkins v. Standard Oil Co. of Cal.,

S07 F a0 Gia Feet Cle E97e) 2 wk tw Bee

Powers v. Bethlehem Steel Corp.,

483 F.2d 963 (Ist Cir. 1973)....

Sibbald v. United States,

rare; See OES ON ea

Stuart v. Laird,

1 Cranch (U.S.) 115 (18038) .....

United States v. American-Foreign

Steamship Corp. ,

363 U.S. 685 (1960)....

United States v. Brooks,

176 F.2d 482 (4th Cir. 1949). ....

Williams v. Conger,

191-8) 800 1687). 6. 6 kk ae

Table of Statutes

28 Us8.6:3 46(c) "ee ef © © @ © © @ @

28 U.S.C. 296 ee ¢ 0:06 4° 6 -4.-¥ 68 Sie

28 U.S.C. 371 ee @ @ @ @ @ © © @ @ @ @

ii

3,4,7,10

ee A Nk a ee a Pe ee eg a

Be ees ee ale hie WR AOR es

Bs RE a NS 8 Es ea eR

oe Ui Bee EN wee 6 eS & A

Bars Ca ak a a, 8 8 tree i eh ts

ae Sees ea a 6 ba ole ke ek

ef ee ee a ee ee

Act of October 20, 1978, Pub.L. 95-486. . 3,5,7,1

Act of August 12, 1976, Pub.L. 94-381. ....

ROE SE Pees Paes EPO kk ee eh eee

Act of October 22, 1913, 38 Stat. 208, 219...

Act of March 3, 1912, 36 Stat. 1067.......

Act of March 3, 1875, RS gig eee ee

Act of April 29, 1802, OE eer

wet Of Garam Gy 8008; 2 Bet. 152 bw ee

Table of Constitutional Provisions

Article III, Section 1,

Constitution of the United States .......

Table of Rules

Rule 27, Federal Rules of Appellate Procedure .

Rule 33(b), Rules of the United States Supreme

Cee kee 8s OS eee ee oe ew ee

Table of Other Authorities

Carpenter, Judicial Tenure in the United States.

124 Congressional Record . ee ee ae ae oe ae

Frankfurter & Landis, The ctuase of the

Supreme Court of the United States - A Study

in the Federal Judicial System,

38 Harv. L.Rev. 1905; 39 Harv. L.Rev. 35,

ee rr ee oe eee ee a

can woaonrowoo *» & won ns] dS Oo

IN THE

Moore's Federal Practice. ..... o& ole @ 1g 8s . SUPREME COURT OF THE UNITED STATES

United States Senate Report No. 95- 117 oe cue 2. DRAG

United States Senate Transcript of Hearings on OCTOBER TERM, 1979

‘Circuit Realignment ......... ee es 9 | |

Wright, Federal Practice and Procedure..... 10 NO.

| LAWRENCE A. UZZELL and

' ROBERT LANE ARRINGTON,

| Individually, and upon behalf -

of all other similarly situated, et al.,

l Petitioners,

v.

WILLIAM C., FRIDAY, Individually,

and as President of the University of

North Carolina, etal.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

| UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

To: The Honorable Chief Justice and Associate Justices

of the Supreme Court of the United States:

The Petitioners respectfully pray that a Writ of Certiorari

issue to review the order of the United States Court of Ap-

peals for the Fourth Circuit entered in this proceeding on

November 9, 1979. :

\

iv

2

OPINIONS BELOW

The judgment of the Court of Appeals for the Fourth Cir-

cuit entitled "Order" entered on November 9, 1979, is not

reported and is printed as Appendix B to this Petition. The

opinion of the Court of Appeals for the Fourth Circuit Upon

Remand entered on February 2, 1979, is reported at 591

F.2d 997. The Order of the United States Supreme Court,

granting certiorari, vacating judgment, and remanding for

further proceedings in light of the decision in the Board of

Regents of the University of California v. Bakke, is report-

ed at 438 U.S. 912, 57 L.Ed. 2d 1158, 98 S.Ct. 3139. The

opinion of the Court of Appeals for the Fourth Circuit on

Petition of Appellees for a Rehearing en banc entered on

July 28, 1977, is reported at 558 F.2d 727. The opinion

of the panel of the Court of Appeals for the Fourth Circuit

is reported at 547 F.2d 801. The opinion of the District

Court for the Middle District of North Carolina is reported

at 401 F.Supp. 775. ‘The Petitioners do not seek review of

judgments delivered in connection with these opinions, and

the same are therefore not appended to this Petition.

JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

1. WHETHER CONGRESS HAS DEPRIVED A SENIOR

JUDGE OF THE COURT OF APPEALS OF POWER

RETAINED BY HIM UPON HIS RETIREMENT.TO

SIT EN BANC UPON CASES THERETOFORE

HEARD ON A~PANEL.

—~<y -—_-—-_—_- wo

— —

ee

3

Pursuant to Rule 33(b) of the Rules of the United States

Supreme Court, the Petitioner hereby recites that Section

2408(a) of Title 28 of the United States Code may be applica-

ble.

2. WHETHER THE RECALL OF MANDATE AFTER

NINE MONTHS AND AFTER THE APPOINTMENT

OF TWO NEW JUDGES DEPARTS FROM THE

ACCEPTED AND USUAL COURSE OF JUDICIAL

PROCEEDINGS.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Article 3, Section 1 of the Constitution of the United States

provides:

"The judicial power of the United States shall be

vested in one Supreme Court, and in such inferior

courts as the Congress may from time to time or-

dain and establish. The judges, both of the Supreme

and-inferior courts, shall hold their offices during

good behavior, and shall, at stated times, receive

for their services a compensation which shall not be

diminished during their continuance in office."

Section 5 of Public Law 95-486, 95th Cong. October 20,

1978, .92 Stat. 1629, provides:

"Section 5. (a) Section 46 (c) of Title 28 of the United

States Code is amended—

(1) in the first sentence, by striking out 'division' and

inserting ‘panel' in lieu thereof; and

(2) by striking out the third sentence."

** * *

4

28 U.S.C. 46(c), before October 20, 1978, provided:

"(c) Cases and controversies shall be heard and

determined by a Court or division of not more than

three judges, unless a hearing or rehearing before

the court en banc is ordered by a majority of the

circuit judges of the circuit who are in regular ac -

tive service. A court en banc shall consist of all

circuit judges in regular active service. A cir-

cuit judge of the circuit who has retired from regu-

lar active service shall also be competent to sit as

a judge of the court em banc in the rehearing of a

case or controversy if he sat in the court of divi-

sion at the original hearing thereof."

STATEMENT OF THE CASE

On June 15, 1974, this action was commenced in the United

States District Court for the Middle District of North Caro-

lina seeking .o nullify certain University practices as being

racially discriminatory and in violation of the Fourteenth

Amendment, the Civil Rights Act of 1871, 42 U.S.C. 1983,

and the Civil Rights Act of 1964, Title VI, 42 U.S.C. 2000d.

Thereafter, the District Court granted the Respondents’

motion for summary judgment. 401 F. Supp. 775.

The Petitioners appealed. On January 5, 1977, the Court

of Appeals for the Fourth Circuit, in a panel consisting of

Bryan, Senior Circuit Judge, Widener, Circuit Judge, and

Kunzig, Judge, United States Court of Claims, sitting by

designation, affirmed summary judgment in favor of the

Respondents in part, but reversed the summary judgment

ruling and remanded with directions that the District Court

enter summary judgment for the Petitioners on two issues.

547 F.2d 801. Respondents moved for rehearing, which

_ was denied on February 28, 1977.

5

On February 11, 1977, mandate issued, but was recalled

sua sponte on March 21, 1977. Petitioners moved to va-

cate the order of recall on May 26, 1977, but no explicit

ruling on this motion was entered.

Upon rehearing en banc before Circuit Judges Haynsworth, ,

Winter, Butzner, Russell, Widener, Hall and Senior Circuit

Judge Bryan, an order was entered affirming the decision of

the panel subject to certain additions. Judges Winter,

Haynsworth and Butzner dissented. 558 F.2d 727.

The Respondents filed a Petition for a Writ of Certiorari,

which was granted on July 3, 1978, the judgment of the court

en banc vacated, and the action remanded to the United States

Court of Appeals for the Fourth Circuit for further considera -

tion in light of Regents of the University of California v.

Bakke. 4380U.S. 912.

On July 20, 1978, the Petitioners filed a Motion before the

Court of Appeals to expedite the briefing and oral argument

upon remand.

On October 20, 1978, Congress enacted Public Law 95-486.

On October 27, 1978, argument before the court en banc

on remand was scheduled for November 16, 1978, before

the same judges who had previously heard the case: Hayns-

worth, Winter, Butzner, Russell, Widener, Hall and Bryan.

Judge Phillips, former Dean of the UNC Law School, recently

appointed to fill the vacancy caused by the death of Judge

Craven, declined to sit. The decision of the panel and the

full court theretofore rendered was reaffirmed. Judges

Haynsworth, Winter and Butzner dissented. This opinion

was issued on February 2, 1979. 591 F.2d 997. Mandate

was not stayed, and no Petition for a Writ of Certiorari was

filed.

6

On May 31, 1979, after the expiration of all deadlines for

review, the letter of the court, hereto attached as Appen-

dix A, was sent. Responses were filed by the Respondents

on June 4; and June 6, 1979 and by the Petitioners on June 8,

1979. The Petitioners raised the question of the validity of

Public Law 95-486 in their response.

On July 27, 1979, Judge Murnaghan was commissioned, and

on September 13, 1979, Judge Sprouse was commissioned. ?

On November 9, 1979, mandate was recalled, the decision

of February 2, 1979, was withdrawn, and the matter ordered

rescheduled for hearing. This decision was rendered by

Judges Winter, with the concurrence of Judges Haynsworth,

Butzner, MurnaghanandSprouse. Judges Russell, Widener

and Hall dissented. Judge Phillips took no part in the con-

sideration of the order. Judge Bryan was not mentioned.

>

REASONS FOR GRANTING THE WRIT

1. The question of whether Congress has the power to

deprive a Senior or Regular Active Judge of the

Court of Appeals of the power to sit en banc should

be settled by this Court.

2. The question whether Congress may deprive a

Senior Judge of the Court of Appeals, of the power ?

to sit en banc upon cases pending before the ¢

en banc court on October 20, 1978, should be , ¥

settled by this Court.

3. The ‘Inited States Court of Appeals for the Fourth

Circuit substantially rejected the doctrine of the

finality of decisions, thereby departing from the

accepted and usual course of judicial proceedings

and necessitating the supervision of this Court.

I.

The Honorable Albert V. Bryan was appointed a Judge of

the United States Court of Appeals for the Fourth Circuit

on August 15, 1961. At the time of his appointment, a

senior judge who sat on a panel\was not entitled or autho-

rized to sit en banc pursuant to Section 46(c) of Title 28

of the United States Code. United States v. American-

Foreign Steamship Corp., 363 U.S. 685, (1960). On

November 13, 1963, Congress reversed this decision of

the Supreme Court, and added the third sentence to Sec-

tion 46(c) to clarify the status of Senior Judges. Public

Law 88-176. 1963 U. S. Code News at 1105.

There is no issue here concerning the jurisdiction of the

court. Without question, Congress may increase and de-

crease the jurisdiction of the federal courts without af-

fecting the tenure of office of the judges of that court.

It has done so severaltimes. E.g., Act of March 3,

1875, Section 2 (28 U.S.C. 1331); Act of March 3, 1911,

c. 231; Section 24 (28 U.S.C. 1337); Public Law 95-486,

Section 9(a) (28 U.S.C. 1337(a)). Nor does this concern

the termination of an administrative or non-judicial power

of a federal judge, such as the appointment of court offi-

cials or the District of Columbia School Board.

On the other hand, it is relatively certain that there would

be no disagreement with the proposition that Congress

could not, by statute, deprive a particular judge of his

right to sit on any particular case or on any particular

class of cases. Nor may Congress declare a judge ap-

pointed under Article [I to be an Article I judge without

the protection of Article III. Further, but perhaps less

certain, Congress could not deprive certain class of judges

of their right to sit. An Act, therefore, to deprive all

judges appointed before, e.g., January 20, 1960, or born

8

before January 1, 1910, of the right to sit em banc, would

be a violation of Section 1 of Article III of the Constitution.

Carpenter, Judicial Tenure in the United States (1918),

89-100. See 1 Moore's Federal Practice 52, note 18.

To the knowledge of counsel, Congress has not abolished

the office of a judge since 1802, Act of April 29, 1802, Act

of March 8, 1802, though it has abolished specific courts,

e.g., Circuit Courts, Act of March 3, 1911, 36 Stat. 1087,

and the Commerce Court, Act of Oct. 22, 1913, 38 Stat.

208, 219, and specific aspects of courts, é€.g., Three

Judge District Courts, Pub.L. 94-381, Sec. 1, 2, Aug. 12,

1976. Further, to the knowledge of this counsel, Congress

has never before deprived an Article III Judge of his right

to sit thereafter on an existing court or aspect of a court

to which he was appointed. See Marbury v. Madison,

1 Cranch (U.S.) 137, 2 L.Ed. 60 (1803); Stuart v. Laird,

1 Cranch (U.S. 115, 2 L.Ed. 115 (1803). See also,

Frankfurter & Landis, The Business of the Supreme Court

of the United States - A Study in the Federal Judicial System,

38 Harv. L.Rev. 1005-1059, 39 Harv. L.Rev. 35-81 (1925);

39 Harv. L.Rev. 325-367, 587-627, 1046-1075 (1926);

Carpenter, supra.

Congress has, in the past, enacted laws making it permiss-

ible for a judge voluntarily to relinquish certain of his

powers by retiring from active to senior judge status.

28 U.S.C. 371. It has never before provided for the in-

voluntary termination of any right or power of a federal

judge. See 28 U.S.C. 372(b).

At the time of Judge Bryan's retirement, on October 17,

1972, an active judge did not surrender his right to sit

en banc upon an appeal where he had sat on the original

panel by retirement. Judge Bryan, therefore, cannot be

ee

—

9

said to have voluntarily relinquished this right, albeit

limited and contingent, to sit en banc.

This question takes upon itself importance beyond this

particular case in the light of proposals before Congress

to deprive any judge eligible for retirement (presently at

ages 65 and 70, 28 U.S.C. 371(b)) of his or her right to

sit en banc under any circumstance. Senate Report No.

95-117, page 52. See also Transcript of Hearings on

Circuit Realignment, Part II, at pages 54 (Judge Gee),

124, 126, 132 (Chief Judge Chambers) and 168 (President

of California Bar Association).

Further, litigants in the future will not pursue appeals

grounded on the absence of a judge whose inclinations have

not been articulated, or who might be embarrassed or of-

fended by being made the point of contention. Only where

the judge has, by mistake, heard the appeal en banc and

held to his position will litigants prosecute the error of

his exclusion from a subsequent en banc. This will hap-

pen rarely, but it did happen in this instance.

Congress may not constitutionally deprive an Article III

Judge of any judicial power or function which other judges

of the court to which he was appointed continue to exercise.

This ought to be so declared by this Court.

II.

Congress did not intend to deprive a senior judge of the

court of appeals of his power to sit en banc upon cases

pending before the en banc court on October 20, 1978.

Such an interpretation would conflict with the strong pub-

lic policy concerning designation and assignment that a

designation ordinarily "runs with the case". United States

v- Brooks, 176 F.2d 482 (4th Cir. 1949); Allan v. Johnson,

391 F.2d 527, 532 (Sth Cir. 1968). See 28 U.S.C.296,

third paragraph.

10

The committee reports and legislative history suggest no

such intent. In the only reference to the deletion of the

third sentence of Section 46(c), found in any report or de-

bate, the intent expressed was to prevent en banc courts

from becoming so large as to be unworkable, a problem

which would arise in the future and would not touch upon

pending cases. Senate Report No. 95-117, page 52.

Indeed, in the debate on Public Law 95-486, Senator

Kennedy, speaking as an author of the final version of the

bill, expressed the opinion that neither active nor senior

judges of a court of appeals could be lawfully deprived of

his right to hear appeals from any geographical part of the

circuit, 124 Cong. Record, 17, 517 (1978). If one of the

leaders of Congress questioned their ability to rearrange

the geographical aspects of the court, then they could hard-

ly be presumed to have intended to deprive a judge of his

right to hear a case then pending before him.

Il.

The Court of Appeals substantially transgressed the pro-

prieties of judicial action in recalling the mandate of the

court, sua sponte, eight months after it issued and six

months after the statutory period for review had expired

(May 2, 1979). At some point every case must be con-

sidered final. Baldwin v. Iowa State Traveling Men's

Association, 283 U.S. 523, 525-526 (1931); Powers v..

Bethlehem Steel Cor>..,, 483 F.2d 963, 964 (lst Cir. 1973);

Legate v. Maloney, 348 F.2d 164, 166 (lst Cir. 1965);

16 Wright, Federal Practice and Procedure, 281-282. To

withdraw an opinion every time new judges are able to vote

who may not have agreed with the original opinion makes a

mockery of this concept.

ll

This departure from accepted judicial process was exacer-

bated because the Recall of Mandate was not made upon a

written Motion, as required by Rule 27 of the Federal Rules

of Appellate Procedure, 9 Moore's Federal Practice 4404,

but was done sua sponte. Counsel for the Petitioner can

send no case in which Mandate was recalled except upon

timely written motion. Hazel-Atlas Glass Co. v.. Hart-

ford-Empire Co., 322 U.S. 238 (1943); Williams v.

Conger, 131 U.S. 390 (1887); Peck v. Sanderson, 59 U.S.

42 (1855); Sibbald v. United States, 37 U.S. 488 (1838);

Haney v. Chesapeake & Ohio R.R., 498 F.2d 987 (D.C.

Cir. 1974); Perkins v. Standard Oil Co. of Cal. , 487 F.2d

672 (9th Cir. 1973); Powers v. Bethlehem Steel Corp..,

supra; Greater Boston Television Corp. v. F.C.C.,

463 F.2d 268, 275 et seq. (D.C. Cir. 1971); Legate v.

Maloney, supra; Iverson v. Commissioner, 257 F.2d 408

(8th Cir. 1958). Further, though a hearing was explicitly

requested by the Petitioner, none was conducted. 9 Moore's

Federal Practice, 4404, and n. 2.

Where previously this Court has entertained challenges to

sitting judges, the issues have been raised during the normal

course of review, not by the extraordinary means of recall-

ing mandate after the time for review had expired. See

Glidden Company v. Zdanok, 370 U.S. 537 (1962). Here

the Respondents filed neither a motion for rehearing nor a

petition for certiorari, and the time for filing both had ex-

pired.

Another and perhaps crucial element of this impropriety was

the fact that the court delayed its consideration of the recall

until after the appointment of two new judges, thereby chang-

ing the result. The original six judges in regular active

service split evenly on the question of recall. Had the sub-

ject been considered at the time it was first brought before

the court, in mid-June, 1979, or at the time before then,

12

the decision would have not been recalled. An evenly

split court could have taken no action, and the February 2,

1979, decision would have endured. McDowell v. United

States, 159 U.S. 596 (1895); Ex Parte Ward, 173 U.S.

452 (1899); Cf. Glidden Company v.. Zdanok, supra.

If a decision may be withdrawn whenever the personnel

of a court changes, then our government is indeed one of

men, not laws.

CON CLUSION

For these reasons, the petitioners suggest that this case

presents important questions for review which because of

unique circumstances, will probably not hereafter be pre-

sented, and that a Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit ought to issue in

this proceeding.

Respectfully submitted, this day of January, 1980.

HUGH JOSEPH BEARD, JR.

Counsel for Petitioners

P.O. Box 30263

Charlotte, N. C. 28230

(704) 375-8679

A-1l

APPENDIX A

[Court of Appeals Letterhead Omitted]

Hugh J. Beard, Jr., Esq. Elizabeth C. Bunting, Esq.

411 Law Building Andrew A. Vanore, Esq.

Charlotte, NC 28230 P.O. Box 629

J. LeVonne Chambers, Esq. a Th Ste

James C. Fuller, Jr., Esq. Karen Bethea Galloway, Esq.

Suite 730, E. Independence P.O. Box 1315

Plaza Durham, NC 27720

951 S. Independence Blvd.

Charlotte, NC 28202

Charles Becton, Esq.

P.O. Box 720

Chapel Hill, NC 27514

Re: 75-2276, Lawrence A. Uzzell, et al vs. William

C. Friday, etc., et al

Dear Counsel:

Only recently we were informed that Section 5(a) of the

Omnibus Judgeship Bill enacted last fall repealed the third

sentence of 28 U.S.C. 46(c). That sentence is the one

which authorized senior judges who previously had sat on a

panel of the court before which the case was first heard to

sit as a member of the en banc court. Since that sentence

has been repealed, it now appears that Judge Bryan's partici -

pation in the case was unauthorized.

The court will welcome suggestions from counsel as to

what should be done in the circumstance.

A-2

Appendix B

Sincerely yours,

WILLIAM K. SLATE, II

By /s/ Carol R. Lemon

(Mr.) Carol R. Lemon

Chief Deputy Clerk

CR L:fls

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 75-2276

Lawrence A. Uzzell, etal.,

Appellants,

Vv.

William C. Friday, etal.,

Appellees.

ORDER

It appearing to the court that, unknown to it and to

counsel, when it sat on November 16, 1978, as an in banc

court to hear argument of the above-entitled case, and

A-3

Appendix B

when on February 2, 1979, it decided said case, it was

improperly constituted as an in banc court in the light of

the repeal of the last sentence of 28 U.S.C. 46(c) by Pub.

L. 95-486, 5(a), it is, with the concurrence of Chief Judge

Haynsworth, Judge Butzner, Judge Murnaghan and Judge

Sprouse, ORDERED that:

(1) The mandate heretofore issued be and it is hereby

recalled.

(2) The opinion of February 2, 1979, be and it is

hereby withdrawn.

(3) The case is returned to the hearing calendar for

reargument before a properly constituted in banc

court.

(4) The clerk shall fix a date for reargument as soon as

an in banc court can be convened.

Judge Russell, Judge Widener and Judge Hall dissent

from the entry of this order. Judge Phillips took no part

in the consideration of this case or of this order.

/s/ Harrison L. Winter

Harrison L. Winter

United States Circuit Judge