ON PETITIONS FOR REHEARING AND SUGGESTIONS FOR REHEARING EN BANC [2] ( 799 F.2d 1031, 5th Cir. 1986, September 15, 1986)
PER CURIAM:
The Petition for Rehearing is DENIED, and the Court having been polled at the request of one of the members of the court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Federal Rules of Appellate Procedure and Local Rule 35), the Suggestion for Rehearing En Banc is also DENIED.
Before GEE, RUBIN, REAVLEY, POLITZ, RANDALL, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, HILL, and JONES, Circuit Judges.
Chief Judge Clark has recused himself pursuant to 28 U.S.C. § 46(d).
[5] HIGGINBOTHAM, Circuit Judge, with whom GEE, GARWOOD, JOLLY, DAVIS, HILL, and JONES, Circuit Judges, join, dissenting:
I dissent from the denial of rehearing en banc for the reasons stated in my dissent to the panel opinion.
We are reminded of just how old this case is, and just how fragile its holding, by the related circumstances that Chief Judge Clark, the most senior active member of the court, is recused because he was counsel in the case, with the result that rehearing en banc was denied despite affirmative votes by a majority of the active judges not recused. Our rules require affirmative vote of a majority of the active members of the court in service. A recused judge remains in active service. I mention the rule, not to quarrel with it but, to aid those members of the bar who might otherwise wonder if we can count.