258 F. 3d 904 - Thomas Moran v. Anne-Marie Clarke, et al.

Appeal from the United States District Court for the Eastern District of Missouri.

The Court's June 14, 2001, order denying the petition for rehearing en banc and for rehearing by the panel is hereby vacated. The petition for rehearing en banc is granted, and the case will be heard in St. Louis, Missouri, at 11:00 a.m., Thursday, September 13, 2001.

The opinion and judgment of this court entered on April 16, 2001, are vacated. The court's mandate issued June 29, 2001, is recalled.

Counsel are directed to file supplemental briefs addressing the following questions:

1. Must a plaintiff seeking redress for injuries arising from executive conduct under a substantive due process theory prove as elements of his claim both conscience-shocking behavior and the denial of a fundamental right that is deeply rooted in our Nation's history and traditions? If so, did Thomas Moran introduce evidence of both such elements adequate to withstand the defendants' Fed.R.Civ.P. 50 motion?

2. In Moran v. Clarke, 247 F.3d 799 (8th Cir. 2001), Singleton v. Cecil, 176 F.3d 419 (8th Cir. 1999) (en banc), and other prior cases, did we establish a framework for evaluating substantive due process claims arising from executive conduct under which a plaintiff could prevail by proving either conscience-shocking behavior or the denial of a fundamental right that is deeply rooted in our Nation's history and traditions? If so, is that framework consistent with the United States Supreme Court's decision in County of Sacramento v. Lewis, 523 U.S. 833 (1998)?

Twenty five copies of the supplemental briefs, limited to 15 pages, shall be simultaneously filed on or before 5:00 p.m., August 6, 2001.