John Fenner, Plaintiff/appellee, v. Dependable Trucking Company, Inc., a California Corporation,federated Department Stores, Inc., a Delawarecorporation, and Martin Lemmons,defendants/appellants, 716 F.2d 605 (9th Cir. 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My brothers in this case suppress the memorandum of February 14, 1983 (not to be published opinion), 703 F.2d 575.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.