IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________
No. 98-40877
______________________
JILL BROWN
Plaintiff - Appellee-Cross-Appellant
v.
BRYAN COUNTY, OK; ET AL
Defendants
BRYAN COUNTY, OK
Defendant - Appellant-Cross Appellee
STACY BURNS
Defendant - Cross-Appellee
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Appeals from the United States District Court for the
Eastern District of Texas, Sherman
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December 14, 2000
ON PETITION FOR REHEARING AND REHEARING EN BANC
(Opinion 7/18/00, 5 Cir., 2000, 219 F.3d 450)
Before REYNALDO G. GARZA, JOLLY, and DeMOSS, Circuit Judges.
PER CURIAM:
The Petition for Rehearing is DENIED and the Court having been polled at the request
of one of the members of the court and a majority of the judges who are in regular
active service not having voted in favor, (FED. R. APP. P. and 5TH CIR. R. 35) the Petition
for Rehearing En Banc is also DENIED.
ENTERED FOR THE COURT:
/s/ E. Grady Jolly
E GRADY JOLLY
United States Circuit Judge
DISSENT FROM ORDER DENYING REHEARING EN BANC
DeMOSS, Circuit Judge:
I file this dissent to the Order entered herein denying the
Petition for Rehearing En Banc for the following reasons:
1. While the Order denying relief is technically correct in
stating that a majority of the judges who are in regular active
service did not vote in favor of en banc reconsideration, I think
the actual vote by this Court on that issue should be stated:
seven judges voted for en banc reconsideration and seven judges
voted against en banc reconsideration. This tie vote reflects the
depth of disagreement as to whether the conclusions of law reached
by the majority in the panel opinion in this case are correct. I
state this as a matter for the public record in order to encourage
Bryan County to apply for a writ of certiorari to the United States
Supreme Court and to encourage the Supreme Court to grant
certiorari in this case and clearly decide the issue which was not
before it in the prior appeal of this case to the Supreme Court.
The second reason I file this dissent is to disclose that
during the course of balloting on whether this Court would
reconsider this case en banc, the votes at one point were eight to
four in favor of en banc reconsideration with two judges not yet
voting. Shortly thereafter, one of the judges who had not
previously voted, voted for en banc reconsideration and one of the
judges who had previously voted for en banc reconsideration
switched his vote to against en banc reconsideration. Shortly
thereafter, another judge who had previously voted for en banc
reconsideration switched his vote to against en banc
reconsideration and the judge who had not previously voted at all,
voted against en banc reconsideration. In my tenure on this Court,
this is the first occasion in which vote switching at the very end
of the balloting had such a dramatic effect. In my view, the
manner in which this tie vote was achieved is a further indication
of the inconclusiveness of this tie vote as an indicator of the
correctness of the majority opinion.
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