*1 Rust, Robert W. M. Carol BLARICOM, Earl VAN Petitioner- Miami, Anderson, Fla., Appellant, respondent-appellee. RIVES, WISDOM and RO- FORSCHT, NEY, Circuit Marshal, Respondent-Appellee. Fifth Circuit. PER CURIAM: Dec. original holding Our was contained “Statutory Part As Amended Jan. procedure employed was that the in re- Rehearing En Banc Granted voking appellant’s parole improper Feb. only because two out of three members eight-man Board voted for revo-
cation of his while the mandate, im- plementing regulation, 28 C.F.R. § call for the “Board.” Under Re- quirements,” engaged in “a brief dis- *2 original hearing, held that the of On minimum of the cussion * * * 6, Directive No. C.F.R. 2.- for Board’s 28 § due 40, procedural practice and the Board’s guidance district court of the the quoted pleaded case, in footnote 4 further in this possibly in Board such of the original opinion, upon to our “relieve us of may re- proceedings ensue as deciding holding necessity of whether not un- the our to adhere mand.” We “Statutory Requirements” this Circuit should render a decision der Part holding contrary appellees’ to the of Tenth briefly attacks the the answer supra Moseley, [10 Earnest v. in Circuit holding. upon that Cir., 1970, 466, 426 at Mo- F.2d 469].” (1) argue Appellees 28 C. that seley 14, 1970, April rehear- was decided quorum provides for a which F.R. 2.22 § ing May present 19, denied in Board of the Parole members of two edition of to C.F.R. would seem indicate coupled parole, hearings on 1970, 1, the on October Board is- that succeeding section, con- with § the appearing 6, sued No. now its Directive enough language apply to to broad tains appellees at 28 C.F.R. 2.40. The insist § hearings. section We think that the substance of section 2.40 exist- granting pa- hearings applies to on 2.22 years prior ed in similar form to the de- revoking hearings pa- to role and not Moseley 1, in and that cision October to does refer 2.23 section role. While merely date of an irrele- was the hearings, merely out a it sets vant amendment If that to that section. peti- persons procedure to for interested granted, much be we do not think that it Hearing Board and does the tion before holding. validity of affects the our Sec- attempt designate a to two-member not ex- was form in its tion 2.40 clearly the sec- quorum. 2.40 is Section pressly published by the Board as effec- parole applicable revocations. to tion provide not seek to on and after That section does tive October sever- eight-member quorum of the Moseley. that a al after the in months decision anything a ma- Board shall be depart find no sufficient reason to We not, jority need that Board. We of holding procedure from our that the em- validity the discuss ployed revoking appellant’s parole in did provide for a two-member an to applicable not conform with the then ad- parole, for the quorum revocation of for procedure ministrative of the Board no Board directives of the itself make attempt. such itself.1 February (18 the date of the to re- § U.S.C. original appeal. parole, On March decision of this voke an of the order terminate respondents (appellees) modify conditions, require filed a 1973 the its terms and which, time, prisoner any part in first brief the the to serve all or of the sought place upon portions a reliance of to remainder of the term for which he was publication styled “Rules of the § sentenced. U.S.C. January Parole, Products, Inc., Board of effective Trade Commission v. Flotill 179, 183, 184, advised as to whether or 1971.” We are not published contrary in have been where those “rules” a L.Ed.2d held that absent by Register required provision, as 5 U.S.C. the Federal rule the common law applies it to 552 and 44 1507. Suffice § the number to the ascertainment of say belatedly required “rules” have not that cited a of members to act collective original body. rule, according in convinced us of our to The common law holding. majority case, requires a a that is that it of quorum majority that adhere our to base We to a which constitutes holding ground body body. in deference to on a narrow collective to act for Under holding decision, in the Tenth Earnest five mem- it would seem that that Moseley, 1970, quorum eight 426 F.2d 469. None- bers constitute expressed as to theless the doubt which we discretion vested member Board and that validity event, could, that has been in the Board be exercised strengthened following constituting considerations. less than three members eight quorum. Discretion is vested of that part
We now withdraw that opinion appearing our under BROWN, Appellant, unnecessary decision, except to this say America, the minimum standards of con UNITED STATES of Appellee. process imposed stitutional due *3 certainly are no imposed
less than those the State Bolling Boards of Parole. See Sharpe, 1954, Eighth 74 S.Ct. Circuit. The 98 L.Ed. of due Submitted Dec. imposed on state boards Mor rissey (Morrissey Decided Brewer, Jan. L.Ed. S.Ct. “applicable
2d are made to future parole”
revocations U.S. at 2604).
92 S.Ct. at Since we have va ap attempted
cated
pellant’s parole, require the minimum process applicable any
ments of due hearing future be prescribed Morrissey those (408 U.S. at The ques does not involve case retroactivity
tion as to the Supreme Court’s in Morris sey. Our further of “Consti discussion Requirements”
tutional in the
opinion was not
guidance either of district court or is, Board and with
drawn. rehearing petition is denied. ¡
EN BANC BROWN, Judge, Chief
WISDOM, GEWIN, BELL, THORN- GOLDBERG,
BERRY, COLEMAN, DYER, GODBOLD,
AINSWORTH,
SIMPSON, CLARK, MORGAN, RON-
EY, GEE,
BY THE COURT: A Court active serv- having requested poll applica-
ice rehearing
tion for en banc and a judges having in active service rehearing voted in favor of en Brown, pro se. banc. Stohr, It is ordered cause shall be re- J. and Rich- Coughlin, heard ard Court en banc on briefs E. argument. Louis, Mo., appellee. without oral filed brief for