### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT MAY 27, 2003 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

_____________________________

No. 00-13064

_____________________________ D. C. Docket No. 00-00156-C V-J-20A

LOUIS NAPIER, Plaintiff-Appel lant, versus KAREN J. PRESLICKA, Jacksonville Sheriff’s Officer, SANDRA M. POMEROY, Jac ksonville Sheriff’s Of

ficer, #6720, Defendants-Appe llees.

__________________________________ _______ Appeal from the United States District Court for the Middle Dist

rict of Florida

__________________________________ _______ (May 27, 2003) ON PETITION FOR REHEARING EN BANC (Opinion Decem

ber 10, 2002, 11 th Cir.)2

Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON, Circuit Judges. BY THE COURT: The Court having bee

n polled at the reques

t of one of the me

mbers of the Court and a maj ority of the Cir cuit Judges who are i

n regular active se

rvice not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rul e 35-5), the Petition for Rehearing En Banc is DENIED.3

BARKETT, Circuit Judge, disse nting from the de

nial of rehearing en banc : I believe the issue i

n this case mer

its en banc consideration. W hile in prison, Napier f

iled a § 1983 suit agains

t two deputies based on activities which occurred month

s before the events leading to his present confinement . Thus his lawsuit has nothing to do with the circum

stances of his prese

nt incarceration.The Napier panel interpreted 42 U.S.C. § 1997e(e), a provision of the 1995 Prison Litigation Reform

Act, Pub.L. No. 104-134, 110 Sta t. 1321 (1996) (“

PLRA”), to bar Napier’s c

laim, holding tha

t when § 1997e(e) sta

tes that “[n] o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, fo

r mental or em

otional injury s

uffered while in c

ustody without a pr

ior showing of physica

l injury,” th

e word “custody

” refers to any

instance of

“ Miranda custody,” including p rior, unrelated arrests

. See Napier v. Presl icka , 314 F.3d 528, 532-34 (11th Cir. 2002). This unjustified expansion of § 1997e(e) to prevent prisoners

from seeking r

emedies for vi

olations that predate

and have no relation to the event

s leading to their cur

rent incarcerat

ion finds little support

in the language, struc

ture or history o f the PLRA. T he panel’s holding a

lso conflicts with this Court’s previous interpreta tions of § 1997e(e) an

d has troubling implications that reach far beyond the specific fact s of this case. Accordin gly, I4

believe that en banc review of the pane l’s decision is wa

rranted to reconsid

er the appropriate reach of § 1997e(e).

I. The Panel’s Holding Finds Little Support in the Language, Structure, or Hist ory of the PLRA The starting point f

or statutory inte

rpretation is the la

nguage of the statute itself. United States v. DBB, Inc. , 180 F.3d 1277, 1281 ( 11thCir. 1999) (citing Watt v. Alaska

, 451 U.S. 259, 265 ( 1981)). When the meaning of a sta

tute is unambiguous, the

re is no need to exam

ine legislative histor

y, since “ we do not resort to legislative history to cloud a statutory text that is clear.” Ratzlaf v. United States , 510 U.S. 135, 147-48 (1994). When a statute is unclear or ambiguous, however, resort to legislative hi story is required. Toibb v. Radloff , 501 U.S. 161, 162 ( 1991); Blum v. Stenson , 465 U.S. 886, 896 (1984 ). Moreover, whether statutory

language is clear o

r ambiguous canno

t be determine

d apart from its circumstances. “In determining whether Congress has specifically addressed the question at issue,

a reviewing court

should not confine itsel

f to examining a particular statutor

y provision in isola

tion. The mea

ning–or ambiguity

–of certain words or phrases may only become evident when placed in context.” FDA v. Brown & William

son Tobacco Corp. , 529 U.S. 120, 132 (2000 ). Accord Bailey v.5

United States , 516 U.S. 137, 145 (1995) (“W e consider not only

the bare mean

ing of the word but also i

ts placement a

nd purpose in the statuto

ry scheme .”); Brown v. Gardner , 513 U.S. 115, 118 (1994) (“Th e meaning of sta

tutory language,

plain or not, depends on cont

ext.”); DBB, Inc. , 180 F.3d at 1281 (“We do not look at one word or term in isolation, but instead we look to the entire statutory context.”). The Napier

panel’s interpre

tation of 42 U.S. C. § 1997e(e) runs c ounter to these well-established principles. S ection 1997e(e) sta tes that: No Federal civil a

ction may be

brought by a prison

er confined in a j ail, prison, or other correctional facility, for mental or em otional injury suffered while i n custo dy witho ut a pri or show ing of p hysical injury. 42 U.S.C. § 1997e(e). The key word for our purpose s is “custody .” Does its extension include arrests occurrin g years before

the events leading up t

o a prisoner’s current incarceration, so that, for example, an individual who was falsely arrested in 1996 and subsequently convicted and imprisoned for unrelated conduct in 1 999 would be precluded

from seeking reli

ef for the 1996 violat

ion? Or did Congress inte

nd “custody”

in the context of § 1997e(e) to refer m erely to “prison custody,” as its antecedent “a prisoner confined in a jail, prison, or other correctional fac

ility” impli

es? Relying on “the plain language” of § 1997e(e), the Napier panel opts for the former, vas

tly more e

xpansive interpreta

tion, holding that the w

ord “custody

” in §1 As the panel majority acknowledges, “custody ” as it occ urs in § 1997e(e) could refer to any formal arrest or restraint on freedom of movement related to a prisoner’s current incarceration

(first interpretation), or it could refer to any such a

rrest or restra int related or unrelated to his current

6 1997e(e) encom

passes all of a prisoner’s prior arrests, whether or not they are related his current confinement “in a jail, prison, or other correctional facility .” Napier , 314 F.3d at 532-34.In my judg ment, this holdin

g depends on interpret

ing a statutory wor

d out of its context in e

xactly the m

anner cases such as Brown & Williamson T

obacco Corp. , Bailey , Gardner , and DBB, Inc. warn against. The panel’s decision involves two steps. First, the panel presumes that Congress used “c

ustody” in § 1997e(e

) “in the settle

d sense” to mea

n “ Miranda custody” or any “‘form

al arrest or restraint on freedom of moveme nt.’” Id. at 532- 33 (quoting Minnesota v. Murphy , 465 U.S. 420, 430 (1984)). Acco rdingly, the panel finds that § 1997e(e) applies to prisoner lawsuits that allege injuries suffered while in custody “even if such custody occurred outside prison walls.” Id. at 533. Second, because § 1997e(e) “by its plain language does not provide a temporal restriction on the custodial episode to which it relates,” the panel determines that its scope extends even further to inclu de prior, unrelated arre sts, such as Napier’s. Id. at 533-34. The panel’s reasoning is unsupported and unpersuasive. As the panel implicitly c

oncedes, “cus

tody” as it occur

s in § 1997e(e) is plain

ly ambiguous. 1incarceration (second interpretation). Napier , 314 F.3d at 532-34. Additionally, it also could refer to a prisoner’s current “prison custody,” i. e., to his current incarceration

inwhat § 1997e(e) t

erms “a jail, prison, or other correction al facility” (third interpretation). Id . at 532. As Judge Pr opst observes in his dis senting o pinion, “cust ody” also could refer to any prison custody, i.e., to a prisoner’s current or previous confinement in a correctional facility (fourth interpretation). Id. at 535. Fin all y, in light of Jones v. Cunningham , 371 U.S. 236 (1963), and its progeny, § 1997e(e)’s custody requirement could conceivably be satisfied where a pe titioner alleges injuries that we r e suffered while he was released on probation, parole, or bail (fifth interpretation). Id . at 536. Only under the second interpretation–which the panel majority

insists is mandated b

y § 1997e(e

)’s “plain language”–would Napier’s lawsuit necessarily be precluded.

2 See tape of oral argument in Napier v. Preslicka , No. 00-13064, 9/11/02.

3 See , e.g . , Mitchell v. Brown & Williamson Tobacco Corp. , 294 F.3d 1309, 131 7 (11th Cir. 2002) (“We conclude tha t § 1997e(e) does

not apply to pr

isoner lawsuits unr e lated to prison conditions filed in state court based solely on state law and removed by def endants to federal court based on diversity

jurisdiction.”); Harris v. Garner , 216 F.3d 970, 979- 80 (11th Cir. 2000) ( enbanc ) (“Because

se ction 1997e(e) applies only to claims filed while an inmate is confined, it does not p revent a fo rmer prisoner from filing after release a monetary damages claim for mental and emotional inj ury suffered while confined , without a prio r show ing of phys

ical injury. ”); Harris v. Garner , 190 F.3d 1279, 1285 (11th Cir. 1999) (“I

n light of the over

whelming clarit

y of the statutory text, we join the Seventh

Circuit in holding that section 1997e(e) applies only to prisoners who are incarcerated

at the time they seek relief, and not to former prisoners who seek damages for injuries suffered while they were incarcera ted .”) (emphases added).

4 The panel attempts to defend its conclusion that §

1997e(e) unambiguously precludes lawsu

its by prisoners for injuries suffered during arrests unrelated to their present confinement by reasoning tha t ha d Co ngre ss i nte nde d ot herw ise , it cou ld h ave d raft ed § 199 7e(e ) mo re cl earl y: One cou ld argu e that the phrase “in custody” is meant to refer to the present custody , that custody for which the prisoner

is i n fac t cu rren tly a pri son er, o r th at t he p hras e “i n cu sto dy” is meant to refer, without reference to the other parts of the statute, to past or present instances of custody. The first interpretation might reflect a narr

ow purpose

of the PLRA to

7 Indeed, the government’s attorney repeatedly acknowledged this am biguity at oral argument. 2 Further, this Court has repeatedly assumed that “custody” as it is used in § 19 97e(e) refers t o priso n custo dy. 3 The panel’s “ plain language” argu

ment would imply that these paraphrases are not only incorrect but inconceivable. 4reduce fri vol ous pri son con dit ion lit igat ion , th ose sui ts b rou ght b y pri soners to ch allenge

what they view

as unacceptable or, indeed, unconstitutional circumstances of their present confinement. However, the first interpretation is not supported by the plain language of the statute . . . . Congress co

uld have drafted the statute to say “while thus impriso

ned” or “while inthat custody

” or “during the

aforementioned

confinement” to

specifically

tie the clause in question to the antecedent in order to ensure that the first interpretation was followed. Even more simply, Congress could have used “while imprisoned” as it uses “prisoner” ear lier in the statute if its

intent was to limit the claims subjectto the PLRA to those arising from harm accrued only in that limited venue. Napier , 314 F.3d at 533. Th e argument is pla

inly fallac ious. That Congress could havedrafted a less ambiguous statute does not prove that this statute is unambiguous. Moreover, the panel’s reasoning is invalid even on its own ter

ms. Had Congress

replaced “whil

e in custody” with any of the panel’s proposed substitutions, then that

phrase’s extensio

n would be fixed by

its antecedent, “

confined in a jail, prison, or other correctional facility.” In tha t case, however

, what the panel c

alls “the first interpretation” of § 1997e(e), acc ordi ng to which “custody” is meant to refer to “that custody for whichthe prisoner

is in fact currently a prisoner,” id. , would not be ensur ed but excluded , since such custody would (normally) not

occur dur ing confinement “in a jail, prison, or other correctional facility.” Simply put, if Congress intended related but not unrelated arrests to fall within the scope of § 1997e(e), i t n ecessarily would prefer that provision’s current lang uage to any of the panel’s proposed alterna

tives.

5 “Congress

is presumed to know the settled legal meaning of the terms it uses in enacted statutes and to use those terms in the settled sense.” Napier , 314 F.3d at 532.

6 Compare, for example, Minnesota v. Murphy , 465 U.S. 420, 430 (1984) (equating custody “for purposes of receivin g Miranda protection” with “formal arrest or restraint on freedo m o f movemen t”) wi th Justices of Boston Mun. Court v. Lydon , 466 U.S. 294 (1984) (holding that a person released on his own recogni zance was “ in custody” within the meaning of 28 U.S.C. §§ 2241(c)(3) and 2254(a)) ; Hensley v. Municipal Court , 411 U .S. 345 (1973) (sam e); Jones v.Cunningham , 371 U.S. 236 (1963) (holding th

a t a parolee was “in custody” within the meaning

8 Moreov er, the p anel’s r elianc e on “the settle d legal meaning ” of “cust ody” is misplaced. 5 Unlike the word “ brought,” which this

Court noted in Harris had a “long history

of established m

eaning,” 216 F.3d a

t 974, the judicial

definition of “custody” ha

s been anything but settled. Instead, it has been fluid and contextdependent. 6 Since there is no si ngle, settled legal

meaning of “

custody,” theof

28 U. S. C. §§ 2241); McNally v. H ill , 293 U.S. 131 (1934) (equating custody with incarceration or detention in prison); and Wales v. Whitney , 114 U.S. 564, 571 (1885) (equating custody with “any physical restraint,” including “[w]ives restrai ned by husbands, children withheld from the proper parent or guardian, [and] persons held under arbitrary custody by private individuals”).

9 notion that Congress shou ld be credited with

knowing and applyi

ng that meaning is inapposite. Rather than in voke th e plain meaning doctri ne where it does not app ly, thereby expanding the scope of a statute Congress may have meant to apply more narrowly, th

is Court should candidly

acknowledge that § 1 997e(e) as writte n is open to several diff

erent interpreta

tions, only som

e of which would pre

clude Napier’s law

suit. It should then ap

ply a differe

nt interpretive ca

non to determine which of those com

peting interpretati

ons is most plausibl

e. This case is a textbook example

of the principle tha

t the meaning of

an ambiguous wor

d is known by its companions–the doctrine of noscitur a sociis . Both the Su preme Court and this Court ha

ve frequently r

elied on this comm

onsense principle to ascertain the m

eaning of ambigu

ous statutory prov

isions “in order

to avoid the giving of unintended breadth to the Acts of Congress.” Jarecki v. G.D. Searle & Co. , 367 U.S. 303, 307 (1961 ). See , e.g. , Gutierrez v. Ca macho , 528 U.S. 250, 255 (2000); Gustafson v. Alloy d Co. , 513 U.S. 561, 575 (1995); Clay v. Riverwood Intern Corp. , 157 F.3d 1259, 1266 ( 11thCir. 1998); City of Delray10

Beach, FL v. A

griculture Ins. C o. , 85 F.3d 1527, 1534 ( 11thCir. 1996). The panel neglects to do likewise because it insists that the meaning of § 1997e(e) is clear “without reference to the other parts of the statute.” Napier , 314 F.3d at 533. B ut whether a statutory provision is clear or ambiguous cannot be determined apart from its context. See Brown & William son Tobacco Corp. , 529 U.S. at 132 ; Bailey , 516 U.S. at 145 ; Gardner , 513 U.S. at 118 ; DBB, Inc. , 180 F.3d at 1281. The panel’s re

liance on the plain m

eaning doctrine to j ustify interpre ting § 1997e(e) apart from the remaining provisions of 42 U.S.C. 1997e puts the cart before the horse. In his dissent to the pan

el’s decision, Ju

dge Propst reviewe

d each of the major provisions of § 1997e and found that, viewed as a whole, they suggest that Congress intended “

in custody” in § 1997e(e) to mean a t least “prison c

ustody,” if not “prison custody related to the present incarceration.” Napier , 314 F.3d at 535. I agree with this conclusion, which is on ly reinforced

when § 1997e(e) is r

ead in light of the PLRA’ s legislative history . There is no evide

nce that Congress m

eant the PLRA to restrict lawsuits unrelated to prison conditions. All of the examples of frivolous litigation cited in the record involve prison conditions; none involves custody occ urring “out side pris on walls,” l et alone arr ests unrel ated to a pr isoner’s current confinement. See 141 Cong. Rec. S74 98-01 (daily ed.May 25, 1995)7 The PLRA was introduced in May 1995 by Senators Dole and Kyl as Senate Resolution 866. Inhis remarks, Senator Dole made cl ear that the target of the proposed legislation was frivolous lawsuitsinvolving prison conditions. See 141 Cong. Rec. S7498-01, S7524 (daily ed. May 25, 1995) (Statement

of Senator Dole)

(“Prisoners have filed lawsu its claiming such grievances as insufficient storage locker space, being prohibited from attending a wedding anniversary party, a

nd yes, being served creamy peanut butter instead of the chunky variety they had ordered.”). Senator Kyl reiterated this limitation in his remarks by relying on a Justice Department repor t on § 1983 litigation entitled “Challenging

the Conditions of Prisons and Jails.” See 141 Cong. Rec. S7498-01, S7527 (daily ed. May 25, 1995) (Statement

of Senator Kyl). Senator Kyl also placed into the record two newspaper editorials descr

ibing the rationa

le of the Dole-Ky

l bill. The first, a c

olumn published in The Wall Street Journal , referred excl

usively to “suits initiated by

people claiming a deprivation of t heir rights while in prison .” 141 Cong. Rec. S7498-01, S7527 (daily ed. May 25, 1995) (Article from The Wall Street Journal ) (Attached to the Congressional Record) (emphasis added). The second, an editorial appearing in the Tucson Citizen , listed sixteen examples of the type of frivolous prison lawsuit that the Arizona s tatute on which the Dole-Kyl bill was modeled was intended to deter, all of whi c h involved prison c ondit ions. See 141 Cong. Rec. S7498-01, S7527-28 (daily ed. May 25, 1995) (Article from the Tucson Citizen ) (Attached to the Congressional Record). In Harris , this Court observed that “‘ [b]ecause Congre ss enacted [the] PL

RA as a rider to

an appropriations bill, floor debate is more indicative of legislative intent than it otherwise would be.” 216 F.3d at 9 77 n.5 (quo ting Alexander v. Hawk , 159 F.3d 1321, 1325 n.8 (11th

Cir. 1998)). We also said that “[t]he state

ments of Senators D

ole and Kyl are due special consideration, because they . . . were the architects of the PLRA.” Id.

11 (Statements o f Senators Dole a nd Kyl); 141 Cong.Rec. S14408-01 (da ily ed. Sept. 27, 1995) (Statem

ents of Senators D ole, Hatch, Ky l, and Abraham

); 141 Cong. Rec. S14754-01 (daily ed. Dec. 4, 1995) (Conference Report on H.R. 2076). 7 In sum, the Napier

panel’s expansive

interpretation of § 1997e(e) finds littl e support in the language , structure, or h istory of the PL

RA. By confi

ning itself to examining a particular statutory word in isolation, the panel unjustifiably disregards the “‘fundamental canon of statutory construction that the words of a statute must be r

ead in their context and with a view to th eir place in the ove

rall12

statutory scheme.’” Brown & William son Tobacco Corp. , 529 U.S. at 133 (quoting Davis v. Michigan Dept. of Treasury , 489 U.S. 803, 809 (1989)). Read i n context, § 1997e(e) is plainly

ambiguous; furth

ermore, its most plausible int erpretation suggests Congress mea nt “custody” t o refer to pr ison cust ody. The PLRA’s legislat ive histo ry reinforces this conc lusion, ca sting fur ther doub t on the pa nel’s dubious interpretatio

n.

II. The Panel’s

Holding Conflict

s with This Court’ s Previous Interpretations of § 1997e(e) As indicated, the panel’s holding that the “plain meaning” of § 1997e(e) precludes equating “

custody” with “

prison custody” or

treating “suff

ered while in custody” as sy

nonymous wit

h “suffered w

hile incarcerate

d” or “suffer

ed while confined in a jail, pri son, or oth er correcti onal facil ity” conflic ts with thi s Court’s previous interpre tations of § 1997 e(e). See Mitchell v. Brown & Williamso

n Tobacco Corp. , 294 F.3d 1309, 1317 ( 11thCir. 2002) (inter preting § 1997e(e) to preclude only lawsuits relating to prison conditions); Harris v. Garner , 216 F.3d 970, 979-80 (11th

Cir. 2000) ( en banc ) (parap hrasin g “suffer ed whil e in cus tody” as “suffered while confined”); Harris v. Garner , 190 F.3d 1279, 1284- 85 (11th Cir. 1999) (paraphrasing “suffered while in custody” both as “suffered while they were13

prisoners” and as “suffere d while they were incarcerated” ). Mitchell in particular appears in direct conflict with Napier , further warr anting en banc review. In Mitchell, a federal prisone r sued cigarette m

anufacturers in st

ate court on state law claims. After defendants removed to federa l court, the district court dismissed the suit because the prisoner did not allege a physical injury as required by § 1997e(e). The Eleventh Cir cuit reversed, hol

ding that “§1997e(

e) does not apply to prisoner lawsuits unrelated to prison conditions filed in state court based solely on state la

w and removed by defendants to f ederal court based

on diversity jurisdiction.” Mitchell , 294 F.3d at 1312. By its very language, this holding does not extend to all state law-claim s removed from

state court on the ba

sis of diversity juri sdiction, but only to such claims th

at are “unre

lated to prison conditions.” Id. The Court made the importance of this qualification quite clear: Mitchell raises se

veral challenges to

the district court’ s application of § 1997e(e) to this m

atter. The only

contention that is dispos itive, however,

is his argument that § 1997e(e) does not apply to actions that were removed from state court. We agree, inso far as the action f iled in state court by Mitchell solely alleged state-law claims unrela

ted to prison conditions

. Id. at 1315 (emphasis added ). After Mitchell , a defendant sued i n state court on state

law claims related

to prison conditions who removes to federal court is not automatically precluded from movin

g to dismiss. For example, a government contractor responsibl e for14

providing prisoner m

eals who is sued for

mental injur

y allegedly

caused by servin g taste less or rotten food is not nec essari ly barred by Mitchell from removing to fede

ral court and m

oving to dismiss, s

ince the alleged inj ury relates to prison conditions. Hence the qualification “unrelated to prison conditions,” which Mitchell uses on three separat e occasions, see id. at 1312, 1315, 1317, i s properly considered part of t

hat case’s holding,

which does in turn con

flict with Napier

.

III. The Panel’s Holding Has Troubling Implications That Reach Far Beyond the Specific Facts of This Ca

se In Jones v. Cunningham , 371 U.S. 236 (1963), the Supreme Court held that a parolee was in c

ustody within the m

eaning of 28 U.S. C. §§ 2241, a provisio n of the federal habea

s corpus statute. L

ikewise, in Hensley v. Municipal Court , 411 U.S. 345 (1973), the Supr eme Court held that a perso n released on his own recognizance wa

s in custody within

the meaning of 2 8 U.S.C. §§ 2241( c)(3) and 2254(a). See also Justices of Boston Mun.Court v. Lydon , 466 U.S. 294 (1984). Hence, as we ob served in Duvallon v. Florida , 691 F.2d 4 83 (11th C ir. 1982), “[i ]n the context of habeas proceedings, the ‘in custody’ requirement ma y also be met where a petitioner is on probation, parole, or bail.” Id. at 485 (citing Hensley , 411 U.S. at 349).15

As a result of these decisions, the Napier panel’s already

expansive interpretation of § 1997e(e) has troublin g implications tha

t reach far bey

ond the narrow confines of

this case. In par

ticular, as Judge P

ropst warns in his diss enting opinion, the panel’ s holding implies th at prisoners could be

precluded from enforcing violations o f their civil rights that occurred whil e they were r

eleased on probation, parole, o r bail. For example, a prisoner would be unable to sue her employer i

n federal court fo

r mental inju

ry associated w

ith sexual harassm

ent or racial discrim

ination, if the alle

ged injury occ

urred while she w

as “in custody

” by virtue of an unexpire

d term of proba

tion or parole, or w

hile she was relea

sed on bail. Napier , 314 F.3d at 536 (Propst, J., dissenting). This is just one of many such examples. If the panel is corre ct, then prisoners could be pr

evented from pu

rsuing an indefinite n

umber of legal

claims, against both public and p rivate actors, ha

ving absolutely noth

ing to do with the conditions of their current incarceration. For example, they would be precluded from seeking r

ecovery for m

ental injury s

temming fr

om humiliat

ing, torturous, or otherwise illegal pr e-detention searche s and interrogatio ns, as well as from, inter alia, false imprison

ment, defam

ation, invasion of pr

ivacy, intenti

onal infliction of emotional distress, malicious prosecution, breach of contract, and many similar claims. I do n

ot believe Congress i

ntended to negate such

rights. “[I] f Congress16

had intended this one pr

ovision at § 1997e(e)”

to have these profoun

d effects, “

it would have clearly said so.” Id. at 537, n.6 (Propst, J., di ssenting).

IV. This Issue is

Exceptionally Im

portant and Warr

ants En Banc Review According to Rule 35 of the Federal Rules of Ap pellate Procedure, en banc review is warr

anted if such a hear

ing “is necessa

ry to secure or

maintain uniformity of the court’s decisions” or “involves a question of exceptional importance.” F.R.A.P. 3 5. Eleventh Circ uit Rule 35-3, our co

mpanion to F.R.A.P. 35 , likewise descr ibes en banc consideration as a pr ocedure intended to alert the en tire c ourt t o “a pre ceden t-set ting error of exc eptio nal imp ortan ce” or “a panel opin ion t hat is alleg edly i n dire ct con flict with p reced ent of the Su preme Court or of this circu it.” 11th Cir. R. 35-3. In my judgment, Napier involves exactly the ty

pe of errors these

rules are intended to address. For the forgoing rea

sons, I respectful

ly dissent from

the Court’s denia

l of rehearing en banc in this case.