Pac Mtl Life Ins Co v. First Repub Bnk Corp

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

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No. 92-1662

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PACIFIC MUTUAL LIFE INSURANCE COMPANY, Plaintiff-Appellant,

versus

FIRST REPUBLICBANK CORPORATION, ET AL.,

Defendants-Appellees.

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Appeal from the United States District Court for the Northern District of Texas

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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES (May 26, 1995)

Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges.

PER CURIAM:

We reversed the judgment of the district court with opinion at 997 F.2d 39 (5th Cir. 1993), and the Supreme Court affirmed by an equally divided vote. Our mandate has not been issued to the district court. The Supreme Court has now held § 27A(b) to be an unconstitutional breach of separation of powers. Plaut v. Spendthrift Farm, Inc., 115 S.Ct. 1447 (1995). Under that decision the claims of plaintiff are barred, and the district court would be unable to do more than repeat its prior judgment. Therefore, our opinion and judgment are vacated, and the judgment of the district court is affirmed.

AFFIRMED.