259 F2d 801 Mallory v. United States

259 F.2d 801

104 U.S.App.D.C. 71

Milton Leo MALLORY, Appellant,
UNITED STATES of America, Appellee.

No. 14023.

United States Court of Appeals District of Columbia Circuit.

Argued June 13, 1958.
Decided June 19, 1958.

Mr. E. Lewis Ferrell, Washington, D.C., with whom Mr. Thurman L. Dodson, Washington, D.C. (appointed by the District Court) was on the brief, for appellant.

Mr. Harry T. Alexander, Asst. U.S. Atty., with whom Messrs. Oliver Gasch, U.S. Atty., Carl W. Belcher and Thomas A. Flannery, Asst. U.S. Attys., were on the brief, for appellee. Mr. Lewis Carroll, Asst. U.S. Atty., and Mr. E. Tillman Stirling, Asst. U.S. Atty., at the time record was filed, also entered appearances for appellee.

Before WILBUR K. MILLER and BAZELON, Circuit Judges, and MADDEN, Judge, United States Court of Claims.*



On March 31, 1958, 104 U.S.App.D.C. , 259 F.2d 796, a division of this court composed of Judges Prettyman, Wilbur K. Miller and Bazelon, with the latter dissenting, filed an opinion denying appellant's motion to remand to the United States District Court for further consideration under Andrew Mallory v. United States,1 and dissolving a previous rule to show cause why the judgment should not be vacated because of that opinion by the Supreme Court. An order to that effect was entered.


The case has been briefed and argued on the merits and is before the present slightly different panel of judges for decision. The essential arguments for reversal now presented were considered by the previous panel and decided by it adversely to appellant.


We are agreed that the opinion of March 31, 1958, is dispositive of the merits here. It is an informal but generally accepted rule of this court that a recent opinion of a division may not be overruled by another panel of judges, but only by the full bench. Because of that rule, the present division could not overturn the decision of the previous panel, even if it were disposed to do so.




Sitting by designation pursuant to the provisions of Sec. 291(a), Title 28 U.S.Code


1957, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479