McCarthy v. Austin , 423 F. Supp. 990 ( 1976 )

ENGEL, Circuit Judge

(concurring).

Because I conclude that we are bound by Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974), I concur. If we were writing upon a clear slate, I might well reach a different result. In particular, I have serious reservations, from both an historical and practical perspective, concerning the language of Storer v. Brown, at 415 U.S. 745-6, 94 S.Ct. 1274, as quoted in Judge Miles’ opinion. It is not, however, dicta, and as Judge Miles correctly points out, it is binding on us here.