The Variable Annuity Life Insurance Co. v. Robert L. Clark, Comptroller of the Currency

JERRY E. SMITH, Circuit Judge,

with whom DAVIS, BARKSDALE, and EMILIO M. GARZA, Circuit Judges, join, dissenting:

I respectfully dissent from the failure of the court to grant rehearing en banc in this important matter. The panel has badly erred in adopting a view of the subject statute that is contrary to the well settled interpretation that had prevailed. The panel’s holding, moreover, seriously thwarts competition in a major market, with no indication that that is what Congress intended.

I

Part of the problem is that because of the large number of recusals in this case, it is not possible to…