Sequel to the rehearing in the Herzog case

• Jurisdiction: United States

Section 171. Sequel to the rehearing in the Herzog case.—The consequence of the foregoing document was a rehearing in banc, limited to the "conflict or apparent conflict" with Bloch on the Rule 52 (b) issue.³ But, while a majority of the Ninth Circuit after reargument repudiated the division's original reading of that Rule, thus lining up with every other circuit that had ever considered the point, the holding was that there would be a different result in Herzog than in Block. Judge Stephens dissented on the ground that there was no power to limit the rehearing in banc to a particular issue. The reader is invited to, and should, read the opinions on rehearing, which are reported at 235 F. 2d 664.

Certiorari was sought, but denied, Mr. Justice Douglas dissenting.⁴ He had earlier, as Circuit Justice, granted bail pending appeal.⁵ Thus the result of the case was, that whereas the Ninth Circuit had originally denied bail pending appeal, which at that time meant that no substantial question was involved,⁶ it had the case under consideration for over 13 months, in the course of which it repudiated the basis on which its original affirmance of the judgment had been rested. Moreover, when the substantive issue involved—the definition of wilfulness in tax cases—again arose, the Ninth Circuit concluded that the Herzog instruction was wrong, and reversed.⁷ It should not therefore occasion surprise that even after four years some residual bitterness still remains whenever the Herzog case comes to mind.

The law as to some of the other issues raised and involved is still nebulous...