In United States v. American-Foreign Steamship Co., 363 U.S. 685, 80 S.Ct. 1336, 4 L.Ed.2d 1491 (1960), the Supreme Court, interpreting 28 U.S.C. § 371(b), decided which senior judges are eligible to participate in an en banc court. Compare United States v. Cocke, 399 F.2d 433, 435 n. 4 (5th Cir. 1968) (en banc). As Judge Rubin reads the American-Foreign Steamship Co. opinion, he considered himself ineligible now to participate in the decision of this case, and he has not therefore done so.
5th Cir., 846 F.2d 325.
By the Court:
The en banc court in this case is dissolved and this cause is remanded to the panel for further action in light of H.J. Inc., et al. v. Northwestern Bell Tel. Co., et al., ___ U.S. ___, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989).