(dissenting from denial of rehearing en banc):
Once again, although Judge Oakes and I have voted in favor of en banc reconsideration of the 2-1 panel decision in this case, we have been unsuccessful in mustering a majority vote of the active judges to do-so. While we recognize that we may be fighting a rear guard action in our attempt to persuade our colleagues to be more gingerly about declining to act as a full court in ruling upon substantial questions of unusual importance, we nevertheless have not given up hope. Moreover; the pattern that has emerged from recent similar situations is quite clear. See, e. g., Eisen v. Carlisle & Jacquelin, 479 F.2d 1005, 1020-26 (2 Cir. 1973) (en banc denied, 5-3), cert, granted, 42 U.S.L.W. 3226 (U.S. Oct. 15, 1973); Boraas v. Village of Belle Terre, 476 F.2d 806, 824-27 (2 Cir. 1973) (en banc denied, 4-4), prob. juris, noted, 42 U.S.L.W. 3226 (U.S. Oct. 15, 1973); Zahn v. International Paper Co., 469 F.2d 1033, 1040-42 (2 Cir. 1972) (en banc denied, 4-3, i. e. 4 in favor of en banc, 3 against), cert, granted, 410 U.S. 925 (1973), aff’d, 42 U.S.L.W. 4087 (U.S. Dec. 17,1973).
I have already stated as best I can in my panel dissent, 487 F.2d at 999, the reasons I believe the majority’s modification of the injunctive relief found necessary by the district court to protect Mrs. Onassis and her children from the continued predatory conduct of Galel-la constituted an unwarranted appellate interference with the district court’s discretion, especially absent any suggestion by the majority that the weighty findings of the district court were clearly erroneous. We recognize at this stage of the case, however, that an en banc rehearing normally will not be granted “ ‘merely’ to correct individual injustices or mistakes”. Eisen, supra, 479 F.2d at 1021-22. When a clearly erroneous panel decision as here is rendered in the context of — or is coupled with — a substantial question of unusual importance, then we believe the case is ripe for en banc reconsideration.
There would appear to be few issues more vital and of more recurring importance in the administration of federal justice than the appropriate standard by which an appellate court reviews the grant or denial of permanent injunctive relief by a district court. Are we bound by the command of Fed.R.Civ.P. 52(a) that “[fjindings of fact shall not be set aside unless clearly erroneous”? Or are we free as appellate judges, without the slightest basis in the record for- doing so, to substitute our own injunctive provisions for those of the district court? With due respect to the panel majority, we believe that it is beyond dispute that here there was an unwarranted appellate interference with the discretion of the trial judge in fashioning relief based upon all of the facts after hearing all of the testimony and after judging the demeanor of all of the witnesses. It is on the basis of excessive and wholly unwarranted appellate intrusion into the traditional area of trial court operations that we believe this case cries out for en banc reconsideration.
Such appellate intrusion here is particularly exacerbated by the fact that the district court’s temporary restraining order of October 8, 1971, 353 F.Supp. at 200 n. 6, which was very similar to the decree refashioned by the panel majority on appeal, had already been deliberately violated by Galella. 353 F.Supp. at *1006237-38. It is undisputed that in the past he had jeopardized the lives and safety of Mrs. Onassis and her children and had done so in the teeth of previous restraining orders of the district court.
Moreover, we believe that it is important to note the internal inconsistency of the panel majority’s condemnation of Galella’s outrageous and dangerous conduct toward Mrs. Onassis and her children on the one hand, and its effectively stripping them of the protection of the district court injunction on the other, including the wholly incomprehensible elimination of any protection whatsoever for the children after they reach age 16.
In short, here, as we suggested a year ago in Zahn, supra, 469 F.2d at 1042, “The record in this case strikes [us] as a particularly good one on which to resolve this important issue. The facts are not in dispute. The legal question is starkly presented. The issue to be resolved is both important and sure to recur.”
We respectfully dissent from the denial of rehearing en banc.
HAYS, Circuit Judge, votes against en banc reconsideration but joins in neither opinion.