Fenner v. Dependable Trucking Company

716 F.2d 605, 1983 U.S. App. LEXIS 24125

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 9, 1983
• Docket: 81-5752
• Status: Published

Opinion

716 F.2d 605

John FENNER, Plaintiff/Appellee,
v.
DEPENDABLE TRUCKING COMPANY, INC., a California corporation,
Federated Department Stores, Inc., a Delaware
corporation, and Martin Lemmons,
Defendants/Appellants.

Nos. 81-5752, 81-5777.

United States Court of Appeals,
Ninth Circuit.

Sept. 9, 1983.

Charles H. Carpenter, Los Angeles, Cal., for defendants/appellants.

Richard A. Caplan, Long Beach, Cal., for plaintiff/appellee.

(Opinion Sept. 9, 1983, 9 Cir., 1983, 716 F.2d 598)

CHAMBERS, Circuit Judge, dissenting from Order Withdrawing Memorandum.

My brothers in this case suppress the memorandum of February 14, 1983 (not to be published opinion), 703 F.2d 575. I think I have First Amendment rights. However, under the pending rehearing, the majority can resolve pending issues, can backtrack and even supercede the original opinion with what they want to say. The February 14, 1983, memorandum was not scandalous justifying its banishment or "depublicizing" it, as they say over at the California Supreme Court. I would concur in the majority's order if either suggested it was scandalous.

Someone here has the horse headed the wrong way between the shafts of the buggy. His head is up against the single tree and the dashboard, and I do not think the first memorandum should be "depublicized."

This dissent, I wish published.