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Abbott v. Thetford

United States Court of Appeals, Fifth Circuit
Jul 6, 1976
534 F.2d 1101 (5th Cir. 1976)


adopting dissent

Summary of this case from Gregorich v. Lund


No. 73-1894.

July 6, 1976.

Howard A. Mandell, Montgomery, Ala., for plaintiff-appellant.

Neil Bradley, Laughlin McDonald, Morris Brown, Emily Carssow, Atlanta, Ga., for Tenn. Valley Unit of Ala. Chapter of Nat'l. Ass'n of Social Workers amicus curiae.

Jack Greenberg, James M. Nabrit, III, Ann Wagner, Norman J. Chachkin, New York City, for NAACP amicus curiae.

Richard H. Dorrough, Robert B. Stewart, Montgomery, Ala., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Alabama.


Judges Wisdom and Godbold did not participate in this decision.

The majority panel opinion in this cause, 529 F.2d 695-702 is reversed, vacated and set aside. The Court en banc adopts as its opinion the dissenting opinion of Judge Gewin, 529 F.2d 702-709 [from which the syllabus paragraphs are drawn]. Accordingly the judgment of the district court, 354 F. Supp. 1280 (M.D.Ala. 1973) is AFFIRMED.

My concurrence rests on several factors not mentioned in the panel dissent which the en banc court today adopts. At oral argument, it became clear that, despite the literal language of his letter "discharging" Abbott, Judge Thetford's action only constituted a recommendation to the county commission, which actually discharged Abbott and which alone had the authority to order his reinstatement and the consequent removal of the person who had since replaced him. This, coupled with Abbott's failure to join the commission or its members as parties and the succession of Judge John W. Davis III to the office formerly held by Judge Thetford, means that, at most, the court below could only order the successor defendant, Judge Davis, to recommend to the county commission that it reconsider Abbott's discharge and disregard his predecessor's recommendation that he be replaced. Even such a questionable exercise of the "strong arm" of equity would grant a form of relief that Abbott's complaint never requested.

The panel majority, which the court en banc reverses, ordered the defendant Thetford to take actions which neither he nor his successor had any official capacity to effectuate. On the other hand, I see no need for the en banc court to reach the broader issues which the adoption of the panel dissent covers. Since Abbott's complaint sought relief from a former judicial officer who was entitled to an immunity from personal liability and whose successor could not control the relief sought, I am persuaded that the trial court properly dismissed the action and I concur in the result.

We dissent from the en banc opinion for the reasons set forth in the majority panel opinion, 529 F.2d 695-702.

Summaries of

Abbott v. Thetford

United States Court of Appeals, Fifth Circuit
Jul 6, 1976
534 F.2d 1101 (5th Cir. 1976)

adopting dissent

Summary of this case from Gregorich v. Lund

adopting dissenting opinion

Summary of this case from McDaniel v. Woodard

adopting the dissent of Gewin, J.

Summary of this case from Berry v. Bailey

adopting the dissenting panel opinion of Judge Gewin, 529 F.2d 695, 707-08, which notes the "fundamental requirement of cooperation and confidence" between a judge and his chief probation officer

Summary of this case from Smalley v. Eatonville City of

In Abbott v. Thetferd, 534 F.2d 1101 (5th Cir. 1976), this court sitting en banc adopted the dissent of the earlier panel decision, 529 F.2d 695, 702 (5th Cir. 1976), holding that in weighing the interests of the state versus that of the citizen employee the importance of confidentiality and harmony would be relevant.

Summary of this case from Williams v. Board of Regents of Univ. Sys

In Abbott the en banc court adopted Judge Gewin's dissent from the panel opinion, see 529 F.2d 695, 701-08 (5th Cir. 1976).

Summary of this case from Davis v. Passman

In Abbott v. Thetford, 534 F.2d 1101 (5th Cir. 1976) (en banc) we refused to order a judge to reinstate his chief probation officer because the probation officer's personal criticisms of the judge made the necessary cooperative and confidential relationship impossible.

Summary of this case from Davis v. Passman
Case details for

Abbott v. Thetford

Case Details


Court:United States Court of Appeals, Fifth Circuit

Date published: Jul 6, 1976


534 F.2d 1101 (5th Cir. 1976)

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