Wald, Chief Judge; Mikva, Edwards, Ruth B. Ginsburg, Silberman, Buckley, Williams, D. H. Ginsburg and Sentelle, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
CA88-03190. Original Opinion reported at 1989 U.S. App.
Appellant's Suggestion For Rehearing En Banc has been circulated to the full court. The taking of a vote was requested. Thereafter, a majority of the judges of the court in regular active service did not vote in favor of the suggestion. Upon consideration of the foregoing it is
ORDERED, by the Court en banc, that the suggestion is denied and it is
FURTHER ORDERED, by the Court en banc, on its own motion, that the Clerk is directed to further withhold issuance of the mandate herein pending disposition by the en banc Court of appellant's Suggestion of Mootness and Motion to Vacate.
SENTELLE, Circuit Judge, joined by SILBERMAN, WILLIAMS, and D. H. GINSBURG, Circuit Judges, dissenting from the denial of en banc:
While I question the decision of this Court to deny en banc review of the merits of this case, I will not at this time publish a separate statement of the reasons in dissent. I take this tack because in my view our jurisdiction over the case is questionable for the reasons set forth in appellant's suggestion of mootness. Therefore, pending decision of the mootness motion, I simply reserve my right to file a dissenting opinion on the merits should the final mandate in this case ever issue. That is, I withhold my dissent at present in view of the possibility that the panel opinion may be vacated under United States v. Munsingwear, 340 U.S. 36, 95 L. Ed. 36, 71 S. Ct. 104 (1950), and my need to dissent be erased. However, should the en banc Court determine this matter not to be moot, and should the panel decision stand and the mandate issue, I view it as likely that I will at that time find it necessary to file my separate dissent from the denial of en banc review on the merits.