(dissenting).
The Consent Decree apparently contemplates that, in case the chairmanship of the Board of Monitors becomes vacant, a successor chairman shall be jointly nominated by the plaintiffs and the defendants. But it does not provide, nor in my opinion does it contemplate, that the parties shall select, elect or appoint a successor. The power actually to appoint is committed to the District Court. I think, therefore, that the power to nominate should not be equated with the power to appoint.
Perhaps the District Court should appoint a joint nominee if he is in all respects qualified to act as chairman. But the failure of the parties to agree upon a nominee, after a reasonable opportunity to do so, should not prevent the making of an appointment. If that were so, then either side could prevent the Board of Monitors from functioning, and so could frustrate one of the essential features of the Consent Decree, by the simple expedient of failing or refusing to agree upon a joint nominee. I think, therefore, that when, ás here, the parties have failed, after reasonable opportunity, to make a joint nomination, the District Judge had not only the right but the duty to appoint a successor chairman.
When the District Judge has acted on his own initiative because a joint nominee was not submitted to him, I do not believe either side should be permitted to veto the court’s appointment, merely because the appointee is unsatisfactory to it; and certainly this court should not set aside the appointment on that ground. I suggest that is exactly what has happened here. For the majority say, “ * * * [I]n our opinion the inherent power of a court of equity does not extend to the appointment * * * of a chairman to whom some of the parties object on reasonable grounds.” A mere objection to the appointee “on reasonable grounds” is not enough, in my opinion, to justify this court in setting aside the District Court’s appointment. We should take that action only when it clearly appears that the appointee is not qualified to act as chairman.
So, I think the question here is not whether McShane’s “prior activities in connection with this case and with the parties to it are a reasonable basis for defendants’ objections to his appointment.” 1 It is, rather, whether McShane’s “prior activities” caused him to be disqualified or unfit to act as chairman.
What were McShane’s “prior activities in connection with this case and with the parties to it” ? At plaintiffs’ nomination, he was appointed to the Board of Monitors and served from April 1, 1960, to May 12, 1960, when his service ceased because this court held the previous incumbent had been improperly removed and that there was no vacancy to which McShane could have been appointed. There is no allegation or finding that during his short term as a monitor McShane was guilty of any conduct which now disqualifies him to be chairman. Thus the reasoning must be that, solely because he was once nominated by the plaintiffs, he is disqualified to act as chairman when appointed by the court after no joint nomination was forthcoming. The fact that former Chairman O’Donoghue was nominated by one side only did not prevent his appointment as chairman and did not cause his appointment to be challenged.
The other prior activity of McShane said to disqualify him as chairman is that while employed by the Federal Bureau of Investigation he took part in an investigation of alleged wiretapping by Hoffa, the Teamsters president, and testified with respect thereto. The statement attributed to McShane indicating hostility *270to Hoffa is revealed by its context as innocuous. In my opinion there is nothing in the record to indicate McShane is not qualified to serve as cháirman of the Board of Monitors. I dissent, therefore, from the action of the majority in removing him.
On Petition for Rehearing en Banc
Rehearing denied.
WILBUR K. MILLER, Chief Judge, and BASTIAN and BURGER, Circuit Judges, are of the view that the petition for rehearing en banc should have been granted.
. Emphasis supplied.