Opinion
No. 92-6257.
February 28, 1994. Order Granting Rehearing En Banc and Vacating Opinion March 23, 1994.
J. Richard Cohen, Elizabeth Johnson, Montgomery, AL, for amicus curiae.
James C. Wood, Simon, Wood Crane, Mobile, AL, Fournier J. Gale, III, Maynard, Cooper, Frierson Gale, Birmingham, AL, David R. Boyd, Balch Bingham, Susan E. Russ, Miller, Hamilton, Snider Odom, Montgomery, AL, for Noonan.
Appeal from the United States District Court for the Middle District of Alabama (No. 88-H-00462-N), Truman M. Hobbs, Judge.
Before HATCHETT and COX, Circuit Judges, and RONEY, Senior Circuit Judge.
Before TJOFLAT, Chief Judge, KRAVITCH, HATCHETT, ANDERSON, EDMONDSON, COX, BIRCH and BLACK, Circuit Judges.
Judges Joel F. Dubina and Ed Carnes have recused themselves and will not participate. Senior Judge Paul H. Roney has elected to participate in further proceedings in this matter pursuant to 28 U.S.C. § 46(c).
The judgment of the district court is vacated, 785 F. Supp. 1469, and this case is remanded to the district court for reconsideration in light of Nipper v. Chiles, 1 F.3d 1171 (1993).
VACATED AND REMANDED.
ORDER [6] March 23, 1994.
A member of this court in active service having requested a poll on whether this case should be reheard by the Court sitting en banc, and a majority of the judges in this court in active service having voted in favor of granting a rehearing en banc,
IT IS ORDERED that the above causes shall be reheard by this court en banc. The previous panel's opinion is hereby VACATED.
I dissent. In my view Nipper should be reconsidered.