Summary
implying that where in banc decision of a circuit court is reversed by the Supreme Court, original panel opinion can be reinstated as good circuit law only by explicit determination to that effect by in banc court.
Summary of this case from U.S. v. MonsantoOpinion
No. 75-2392.
May 31, 1977.
Robert L. Shevin, Atty. Gen., Raymond W. Gearey, Atty. for Fla. Div. of Corrections, John A. Barley, Asst. Atty. Gen., Dept. of Legal Affairs, Civ. Div., William C. Sherrill, Jr., Asst. Atty. Gen., Tallahassee, Fla., for defendant-appellant.
Tobias Simon, Miami, Fla. (court-appointed not under Act), Jack Greenberg, New York City, for plaintiff-appellee.
Brian K. Landsberg, William C. Graves, U.S. Dept. of Justice, Washington, D.C., for amicus curiae.
Appeal from the United States District Court for the Middle District of Florida; Charles R. Scott, Judge.
Before BROWN, Chief Judge, TUTTLE, GEWIN, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYERfn_, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL and FAY, Circuit Judges.
Judge in active service at the time of the en banc hearing and decision, but has since become a Senior Judge.
Judge Fay was not a member of the Court of Appeals at the time of the hearing or decision en banc.
The United States Supreme Court Reversed the decision of this Court reported at 539 F.2d 547 (5th Cir. 1976), and remanded the case to this Court for further proceedings consistent with its opinion in Costello v. Wainwright, ___ U.S. ___, 97 S.Ct. 1191, 51 L.Ed.2d 372 (1977). The case was taken en banc for consideration of the three-judge court issue. The Court does not regard the remaining issues in the case to be enbancworthy. Therefore, the Court reinstates the panel opinion reported at 525 F.2d 1239 (5th Cir. 1976) as the decision in this case, and orders that the mandate be issued forthwith.