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Galella v. Onassis


November 13, 1973


487 F.2d 986.

Timbers, Circuit Judge, with whom Oakes, Circuit Judge, concurs (dissenting from denial of rehearing en banc).

A petition for a rehearing having been filed herein by counsel for the appellee, Jacqueline Onassis,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is denied.


(HON. WILLIAM H. TIMBERS, C.J. votes to grant the petition for rehearing) Petition for Rehearing En Banc.

A petition for a rehearing containing a suggestion that the action be reheard en banc having been filed herein by counsel for the appellee, Jacqueline Onassis, and a poll of the judges in regular active service having been taken on the request of such a judge, and Chief Judge Kaufman, Circuit Judges Friendly, Hays, Feinberg, Mansfield and Mulligan having voted to deny the petition, and Circuit Judges Oakes and Timbers having voted to grant the petition, and a per curiam opinion and an opinion by Circuit Judge Timbers having been filed,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is denied.

/s/ IRVING R. KAUFMAN Chief Judge

Per Curiam:

Our brothers Oakes and Timbers have, as they characterize it, dissented "once again"*fn1 from this Court's denial of en banc reconsideration of a panel decision. In their dissenting opinion, they have recognized that en banc review is not appropriate simply to resolve a mere disagreement with the outcome reached by a panel of this Court. Our dissenting brothers note, however, that they find in this case not merely an erroneous decision but a substantial question of unusual importance. Wholly aside from our view whether it was proper for the panel to modify the district court's decree, we cannot agree with their assessment of the importance of the question before us.

Although we sympathize with the plight of Mrs. Onassis, it hardly need be stated that the importance of a decision does not turn on whether the litigants stand in the limelight of public recognition or in the shadows of anonymity. Rather, significance rests on the precedential impact that a determination of this Court is likely to have on the future course of the law and hence on the lives of countless others.

When examined from this perspective, it is quite clear that the panel's decision does not rise to the threshold of importance requisite to en banc reconsideration. To be sure the issue of what constitutes the appropriate standard for appellate review of the terms of an injunctive decree is indeed important. And, if the panel had recast the traditional yardstick into a test other than abuse of the wide discretion accorded the district court in formulating its decree, International Salt Co. v. United States, 332 U.S. 392, 400-401, 92 L. Ed. 20, 68 S. Ct. 12 (1947); United States v. National Lead Co., 332 U.S. 319, 335, 67 S. Ct. 1634, 91 L. Ed. 2077 (1947), then we too would have responded affirmatively to a request for en banc review. But it did not do this. Although several members of the Court may dislike the result, the principle embodied in the majority's opinion is not a departure from the established rule. Since we foresee minimal precedential impact for this decision, and because we are properly concerned that the sparse judicial resources of this Court should not be expended unnecessarily -- particularly where the question is not of unusual importance -- reconsideration of the question en banc would be wholly unwarranted.

TIMBERS, Circuit Judge, with whom OAKES, Circuit Judge, concurs (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, 93 S. Ct. 1370, 35 L. Ed. 2d 585 (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 Galella 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 "findings 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 237-38. 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.

Hon. Paul R. Hays, Circuit Judge, votes against en banc reconsideration but joins in neither opinion.

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