text:
    No. 384.
    Presbyterian Church in the United States et al. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church et al.

      Robert B. Troutman, Charles L. Gowen, A. Felton Jenkins, Jr., and Frank S. Cheatham, Jr., for petitioners. Frank B. Zeigler and James Edward McAleer for Mary Elizabeth Blue Hull Memorial Presbyterian Church et al., and Owen H. Page for Eastern Heights Presbyterian Church et al., respondents. George Wilson McKeag for Thompson et al., and Jackson A. Dykman for Hines, as amici curiae in support of the petition. Alfred J. Schweppe for Laurelhurst United Presbyterian Church, Inc., et al. as amici curiae urging denial of the petition.
   Sup. Ct. Ga. Motion to use record in No. 71, October Term, 1968, granted. Motion of William P. Thompson, Stated Clerk of General Assembly of United Presbyterian Church in the United States of America, et al. for leave to file a brief as amici curiae granted. Motion of Rt. Rev. John E. Hines, Presiding Bishop of Protestant Episcopal Church in the United States for leave to file a brief as amicus curiae granted. Certiorari denied.


source: Caselaw Access Project

license: Public Domain

text:
    No. 772.
    Benn v. Sankin et al.

      Sherman L. Cohn for petitioner.
   C. A. D. C. Cir. Certiorari denied.

The Chief Justice took no part in the consideration or decision of this petition.


text:
    No. 781.
    Gibbons v. United States District Court for the District of Nevada.

      Solicitor General Griswold, Assistant Attorney General Wilson, and Jerome M. Feit for respondent.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Black and Mr. Justice Douglas are of the opinion that certiorari should be granted.


text:
    No. 783.
    Butler v. City of Winter Garden.

      Robert G. Murrell for petitioner.
   Sup. Ct. Fla. Certiorari denied.

Mr. Justice Black is of the opinion that certiorari should be granted.


text:
    No. 787.
    Velvel v. Nixon, President of the United States, et al.

      Lawrence R. Velvel, petitioner, pro se.

   C. A. 10th Cir. Motion to dispense with printing petition granted. Certiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted.


text:
    No. 789.
    Walker Oil Co., Inc., et al. v. Hudson Oil Co. of Missouri, Inc.

      Joe J. Harrell for petitioners. Harry Kemker for respondent.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted.


text:
    No. 203,
    Misc.
    Beasley v. County Court, Kenosha County.

      Robert W. Warren, Attorney General of Wisconsin, and William A. Plats and William P. Eich, Assistant Attorneys General, for respondent.
   Sup. Ct. Wis. Certiorari denied.


text:
    No. 235,
    Misc.
    Porter v. California.

      Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and Elizabeth Miller and John C. Hamilton, Deputy Attorneys General, for respondent.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 278,
    Misc.
    Pennington v. Pate, Warden.

      William J. Scott, Attorney General of Illinois, and Joel M. Flaum and Thomas J. Immel, Assistant Attorneys General, for respondent.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 143,
    Misc.
    Bullock v. Warden, Westfield State Farm for Women.

      William E. Hellerstein and Leon B. Polsky for petitioner. Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, and Murray Sylvester, Assistant Attorney General, for respondent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 352,
    Misc.
    Green v. Fitzharris, Correctional Superintendent.

      Thomas C. Lynch, Attorney General of California, Albert W. Harris, Jr., Assistant Attorney General, and George R. Nock, Deputy Attorney General, for respondent.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 372,
    Misc.
    Vann v. Mancusi, Warden.

      Louis J. Lefkowitz, Attorney General of New York, Ruth Kessler Toch, Solicitor General, and Calvin M. Berger, Assistant Attorney General, for respondent.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 384,
    Misc.
    Jaquish v. Field, Men’s Colony Superintendent.

      Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and Jerold A. Krieger, Deputy Attorney General, for respondent.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 402,
    Misc.
    Pacheco v. Hocker, Warden.

      Harvey Dickerson, Attorney General of Nevada, for respondent.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 423,
    Misc.
    Sullivan v. Eyman, Warden, et al.

      Gary K. Nelson, Attorney General of Arizona, and Carl Waag, Assistant Attorney General, for respondents.
   Sup. Ct. Ariz. Certiorari denied.


text:
    No. 465,
    Misc.
    Gonzales v. California.

      Thomas C. Lynch, Attorney General of California, William E. James, Assistant Attorney General, and Thomas Kallay, Deputy Attorney General, for respondent.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 498,
    Misc.
    Copas v. Burke, Warden.

      Robert H. Friebert for petitioner. Robert W. Warren, Attorney General of Wisconsin, and William A. Platz and William F. Eich, Assistant Attorneys General, for respondent.
   Sup. Ct. Wis. Certiorari denied.


text:
    No. 599,
    Misc.
    Schwartz v. Victory Container Corp. et al.

      Maximilian Bader and I. Walton Bader for petitioner.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 660,
    Misc.
    Meeks v. Fitzharris, Correctional Superintendent.

      Thomas C. Lynch, Attorney General of California, Albert W. Harris, Jr., Assistant Attorney General, and George R. Nock, Deputy Attorney General, for respondent.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 717,
    Misc.
    Child v. Maine et al.

      James S. Erwin, Attorney General of Maine, and John W. Benoit, Jr., Assistant Attorney General, for respondents.
   Sup. Jud. Ct. Me. Certiorari denied.


text:
    No. 749,
    Misc.
    Brow v. Michigan.
   Sup. Ct. Mich. Certiorari denied.


text:
    No. 729,
    Misc.
    Evans v. United States.

      Solicitor General Griswold for the United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 727,
    Misc.
    Blanchey v. Washington et al.

      James E. Kennedy for respondents.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 828,
    Misc.
    Gibbs v. Turner et al.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 925,
    Misc.
    Bell v. North Carolina.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 926,
    Misc.
    Campbell v. United States.

      John C. Emery, Jr., for petitioner. Solicitor General Griswold for the United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 928,
    Misc.
    Smith v. Georgia.

      Reuben A. Garland for petitioner. Arthur K. Bolton, Attorney General of Georgia, Harold N. Hill, Jr., Executive Assistant Attorney General, and Marion O. Gordon, Assistant Attorney General, for respondent.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 929,
    Misc.
    Hemminger v. Kansas.
   Sup. Ct. Kan. Certiorari denied.


text:
    No. 931,
    Misc.
    Stacy v. Van Curen, Correctional Superintendent.
   Sup. Ct. Ohio. Certiorari denied.


text:
    No. 947,
    Misc.
    Cuevas v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 948,
    Misc.
    Sanchez v. Field, Men’s Colony Superintendent.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 949,
    Misc.
    Reilly v. Florida.

      Phillip A. Hubbart for petitioner.
   Dist. Ct. App. Fla., 3d Dist. Certiorari denied.


text:
    No. 1048,
    Misc.
    De Palma v. United States.

      Morris Lavine for petitioner. Solicitor General Griswold for the United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 1050,
    Misc.
    Gearing v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 1052,
    Misc.
    Kleinhans v. Kleinhans.
   Sup. Ct. Wis. Certiorari denied.


text:
    No. 1062,
    Misc.
    Gittlemacker et ux. v. County of Philadelphia et al.

      William J. O’Brien for respondent Williamsport Hospital.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 1066,
    Misc.
    Lawler v. United States.

      Julius Lucius Echeles for petitioner. Solicitor General Griswold for the United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 1111,
    Misc.
    Mitchelson v. McMann, Warden.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 1171,
    Misc.
    Penrice v. California Adult Authority.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 1277,
    Misc.
    Washington v. Wainwright, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 1102,
    Misc.
    Young v. McGee, Corrections Agency Administrator, et al.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 1312,
    Misc.
    Thompson v. United States.

      Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Roger A. Pauley for the United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 1316,
    Misc.
    McFadden v. Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 1368,
    Misc.
    Wenner v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 281,
    Misc.
    Dupree v. Illinois.
    Mr. Justice Black is of the opinion that certiorari should be granted.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 19.
    No. 612.
    No. 505,
    No. 569,
    No. 594,
    No. 1086,
    Misc.
    Misc.
    Misc.
    Misc.
    First National Bank in Plant City v. Dickinson, Comptroller of Florida, et al., Brown v. Commercial National Bank of Peoria, Trustee, et al., Carlton et ux. v. Gerstein, In re Lipscomb, Williams v. United States, Morales v. Craven, Warden,
   ante, p. 122;

ante, p. 961;

ante, p. 992;

ante, p. 993;

ante, p. 966; and

ante, p. 994. Petitions for rehearing denied.


text:
    January 26, 1970
    No. -.
    Dyman v. United States.

      Solicitor General Griswold in opposition.
   C. A. 2d Cir. Application for bail presented to Mr. Justice Douglas, and by him referred to the Court, denied.


text:
    No. —.
    Araya-Murchio v. United States.

      Judah Best for applicant. Solicitor General Griswold in opposition.
   C. A. 2d Cir. Application for reduction of bail pending trial presented to Mr. Justice Douglas, and by him referred to the Court, denied.


text:
    No. 387.
    California v. Green.
   Sup. Ct. Cal. [Certiorari granted, ante, p. 1001.] Motion of respondent for appointment of counsel granted. It is ordered that E. Barrett Prettyman, Jr., Esquire, of Washington, D. C., a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for respondent in this case.


text:
    No. 445.
    Standard Industries, Inc. v. Tigrett Industries, Inc., et al.

      Ralph W. Kalish on the motion.
   C. A. 6th Cir. [Certiorari granted, ante, p. 885.] Motion of respondents to remove case from summary calendar denied.


text:
    No. 944.
    No. 972.
    Carter et al. v. West Feliciana Parish School Board et al.; and Singleton et al. v. Jackson Municipal Separate School District et al.,

      Gerald Mager on the motion.
   ante, p. 290. Motion of the Governor of Florida for leave to intervene and to recall judgments denied.


author: Mr. Justice Black,

text:
    No. 687.
    Ginzburg et al. v. Goldwater.

      Harold E. Kohn and David H. Marion for petitioners. John J. Wilson for respondent.
   C. A. 2d Cir. Certiorari denied.

The Chief Justice took no part in the consideration or decision of this petition.

Mr. Justice Black,

with whom Mr. Justice Douglas joins, dissenting.

Shortly before the 1964 presidential election, Fact magazine published an issue entitled “The Unconscious of a Conservative: A Special Issue on the Mind of Barry Goldwater.” The thrust of the two main articles in this issue of Fact was that Senator Barry Goldwater, the 1964 Republican nominee for the Presidency, had a severely paranoid personality and was psychologically unfit for the high office to which he aspired. The articles in the magazine attempted to support the thesis that Senator Goldwater was mentally ill by citing allegedly factual incidents from his public and private life and by reporting the results of a “poll” of 12,356 psychiatrists, together with a “sampling” of the comments made by the 2,417 psychiatrists who responded to the poll questionnaire that the magazine mailed out. Shortly after the publication of the “special Goldwater issue,” Senator Goldwater commenced this libel action for damages against Fact Magazine, Inc., Warren Boro-son, the named author of one of the articles, and Ralph Ginzburg, the editor and publisher of Fact. The suit was brought in the United States District Court for the Southern District of New York on the basis of diversity of citizenship. After 15 days of trial, the jury returned a verdict against each of the defendants. Although the jury awarded Goldwater only $1 in compensatory damages against all three defendants, it went on to award him punitive damages of $25,000 against Ginz-burg and $50,000 against Fact Magazine, Inc. In their appeal to the United States Court of Appeals for the Second Circuit, Ginzburg and the other defendants attacked this award of damages, arguing that it severely-penalized them for exercising their First Amendment rights to free speech and a free press. The Court of Appeals found, however, that the defendants had been accorded at trial all the First Amendment protection to which they were entitled under this Court’s holdings in New York Times Co. v. Sullivan, 376 U. S. 254 (1964), and its progeny. New York Times and the cases following it permit public figures and officials to recover damages for libelous statements made about them if the publication was made with “ ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times Co. v. Sullivan, supra, at 280. See, e. g., Rosenblatt v. Baer, 383 U. S. 75 (1966). The Court of Appeals found that the District Court had properly applied the New York Times “actual malice” rule and affirmed Goldwater’s libel award. Defendants Ginzburg and Fact Magazine, Inc., then petitioned this Court for a writ of certiorari to review the judgment of the Court of Appeals. It is this petition which this Court today denies.

I cannot subscribe to the result the Court reaches today because I firmly believe that the First Amendment guarantees to each person in this country the unconditional right to print what he pleases about public affairs. See Curtis Publishing Co. v. Butts, 388 U. S. 130, 170 (concurring in result and dissenting); and New York Times Co. v. Sullivan, supra, at 293 (concurring). This case perhaps more than any I have seen in this area convinces me that the New York Times constitutional rule is wholly inadequate to assure the “uninhibited, robust, and wide-open” public debate which the majority in that case thought it was guaranteeing. See New York Times Co. v. Sullivan, supra, at 270. What I wrote in my separate opinion in Rosenblatt v. Baer, supra, at 95, seems to me equally applicable here:

“This case illustrates I think what a short and inadequate step this Court took in the New York Times case to guard free press and free speech against the grave dangers to the press and the public created by libel actions. Half-million-dollar judgments for libel damages like those awarded against the New York Times will not be stopped by requirements that ‘malice’ be found, however that term is defined. Such a requirement is little protection against high emotions and deep prejudices which frequently pervade local communities where libel suits are tried. And this Court cannot and should not limit its protection against such press-destroying judgments by reviewing the evidence, findings, and court rulings only on a case-by-case basis. The only sure way to protect speech and press against these threats is to recognize that libel laws are abridgments of speech and press and therefore are barred in both federal and state courts by the First and Fourteenth Amendments. I repeat what I said in the New York Times case that ‘An unconditional right to say what one pleases about public affairs is what I consider to be the minimum guarantee of the First Amendment.’ ”

Moreover, there are two special factors in this case that make the holding of the Court of Appeals all the more repressive and ominous. This suit was brought by a man who was then the nominee of his party for the Presidency of the United States. In our times, the person who holds that high office has an almost unbounded power for good or evil. The public has an unqualified right to have the character and fitness of anyone who aspires to the Presidency held up for the closest scrutiny. Extravagant, reckless statements and even claims that may not be true seem to me an inevitable and perhaps essential part of the process by which the voting public informs itself of the qualities of a man who would be President. The decisions of the District Court and the Court of Appeals in this case can only have the effect of dampening political debate by making fearful and timid those who should under our Constitution feel totally free openly to criticize Presidential candidates. Doubtless, the jury was justified in this case in finding that the Fact articles on Senator Goldwater were prepared with a reckless disregard of the truth, as many campaign articles unquestionably are. But, even if I believed in a balancing process to determine the scope of the First Amendment, which I do not, the grave dangers of prohibiting or penalizing the publication of even the most inaccurate and misleading information seem to me to more than outweigh any gain, personal or social, that might result from permitting libel awards such as the one before the Court today. I firmly believe it is precisely because of these considerations that the First Amendment bars in absolute, unequivocal terms any abridgment by the Government of freedom of speech and press.

Another reason for the particular offensiveness of this case is that the damages awarded Senator Goldwater were, except for $1, wholly punitive. Senator Goldwater neither pleaded nor proved any special damages, and the jury’s verdict of $1 nominal compensatory damages establishes that he suffered little if any actual harm. In spite of this, Ginzburg and his magazine are being punished to the extent of being forced to pay Senator Goldwater $75,000 in punitive damages. It is bad enough when the First Amendment is violated to compensate a person who has actually suffered a provable injury as a result of libelous statements; it is incomprehensible that a person who has suffered no provable harm can recover libel damages imposed solely to punish defendants who have exercised their First Amendment rights.

I would grant certiorari and reverse the Court of Appeals summarily.


text:
    No. 798.
    Edelman v. United States.

      Jacob P. Lefko-witz for petitioner. Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Edward Fenig for the United States.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted.


text:
    No. 944.
    No. 1003.
    Carter et al. v. West Feliciana Parish School Board et al., West Feliciana Parish School Board et al. v. Carter et al.,
   ante, p. 290; and ante, p. 1032. Petitions for rehearing denied.


text:
    No. 972.
    Singleton et al. v. Jackson Municipal Separate School District et al.,
   ante, p. 290. Petitions for rehearing of Board of Public Instruction of Alachua County, Florida, and Board of Public Instruction of Bay County, Florida, denied.


text:
    January 27, 1970
    No.-.
    Russo v. New Jersey.
   Sup. Ct. N. J. Application for stay presented to Mr. Justice Douglas, and by him referred to the Court, denied.


text:
    No. -.
    Zicarelli et al. v. New Jersey.

      Michael A. Querques and Daniel E. Isles for applicants. Kenneth P. Zauber and Wilbur H. Mathesius for New Jersey Commission of Investigation in opposition.
   Sup. Ct. N. J. Application for stay presented to Mr. Justice Douglas, and by him referred to the Court, denied.


text:
    January 28, 1970
    No. 842.
    Promenade Hosiery Mills, Inc. v. Kiki Undies Corp.

      Maximilian Bader and I. Walton Bader for petitioner.
   C. A. 2d Cir. Petition for writ of cer-tiorari dismissed pursuant to Rule 60 of the Rules of this Court.


text:
    February 2, 1970
    No. 477.
    Atlantic Coast Line Railroad Co. v. Brotherhood of Locomotive Engineers et al.
   C. A. 5th Cir. [Certiorari granted, ante, p. 901.] An additional thirty minutes allotted to each side in this case.

Mr. Justice Marshall took no part in the consideration or decision of this matter.


text:
    No. 1136.
    Northcross et al. v. Board of Education of Memphis, Tennessee, City Schools.

      Jack Greenberg and James M. Nabrit III on the motion.
   C. A. 6th Cir. Motion to advance granted. Brief or briefs opposing petition for writ of certiorari shall be filed on or before February 16, 1970.


text:
    No. -.
    Cullen v. Yeager, Principal Keeper.
   C. A. 3d Cir. Application for bail presented to Mr. Justice Brennan, and by him referred to the Court, denied.


text:
    No. —.
    Whitcomb, Governor of Indiana v. Chavis et al.

      Theodore L. Sendak, Attorney General of Indiana, Richard C. Johnson, Chief Deputy Attorney General, and William F. Thompson, Assistant Attorney General, for applicant. James Manaban in opposition.
   Emergency application for stay of judgment of United States District Court for the Southern District of Indiana presented to Mr. Justice Marshall, and by him referred to the Court, granted pending timely filing and disposition of an appeal.


text:
    No. 1197,
    Misc.
    Powell v. Hart, U. S. District Judge.

      Herbert O. Reid, Arthur Kinoy, Robert L. Carter, Hubert T. Delany, William Kunstler, Frank D. Reeves, and Henry R. Williams for petitioner. Solicitor General Griswold in opposition.
   Motion for leave to file petition for writ of mandamus denied.

The Chief Justice took no part in the consideration or decision of this motion.


text:
    No. 513.
    In re Spencer.

      Jack P. F. Gremillion, Attorney General of Louisiana, on the motion.
   Appeal from Sup. Ct. La. Motion of appellee, Judge R. B. Williams, to file additional record granted. Further consideration of question of jurisdiction postponed to hearing of case on the merits.


text:
    No. 914.
    No. 916.
    No. 920.
    No. 1038.
    No. 1057.
    No. 915.
    No. 917.
    No. 921.
    New York, New Haven & Hartford Railroad Company First Mortgage 4% Bondholders Committee v. Smith, Trustee of Property of New York, New Haven & Hartford Railroad Co., et al.; Manufacturers Hanover Trust Co., Trustee v. United States et al.; Chase Manhattan Bank, N. A., Trustee v. Penn Central Co. et al.; Penn Central Co. v. Manufacturers Hanover Trust Co., Trustee, et al.; and United States et al. v. New York, New Haven & Hartford Railroad Company First Mortgage 4% Bondholders Committee et al. New York, New Haven & Hartford Railroad Company First Mortgage 4% Bondholders Committee v. United States et al.; Manufacturers Hanover Trust Co., Trustee v. United States et al.; and Chase Manhattan Bank, N. A., Trustee v. United States et al.

      Lester C. Migdal and Lawrence W. Pollack for petitioner in No. 914, and for appellant in No. 915. Whitney North Seymour and Albert X. Bader, Jr., for petitioner in No. 916, and for appellant in No. 917. Wilkie Bushby
      and Joseph Schreiber for petitioner in No. 920, and for appellant in No. 921. Hugh B. Cox, Roswell B. Perkins, Ulrich Schweitzer, Francis T. P. Plimpton, Samuel E. Gates, and Robert L. King for petitioner in No. 1038. Solicitor General Griswold, Assistant Attorney General McLaren, Deputy Solicitor General Springer, Howard E. Shapiro, Robert W. Ginnane, and Leonard S. Goodman for the United States et al. in No. 1057. They also filed a memorandum for the United States in Nos. 914, 915, 916, 917, 920, 921, and 1038. Joseph Auerbach, James Wm. Moore, Robert G. Bleakney, Jr., and Morris Raker for Smith, respondent in Nos. 914, 916, and 920, and appellee in Nos. 915, 917, and 921. Messrs. Griswold and Ginnane on the motion to expedite.
   Petitions for cer-tiorari before judgment to C. A. 2d Cir.; and

Appeals from D. C. S. D. N. Y.

Motion to expedite granted. Probable jurisdiction noted in Nos. 915, 917, and 921. Certiorari granted in Nos. 914, 916, 920, 1038, and 1057. Cases consolidated and a total of three hours allotted for oral argument. The bondholders and the New Haven trustee shall file their main briefs by February 26, 1970; and the briefs of Penn Central, the United States, the Interstate Commerce Commission, and the States of Connecticut and New York shall be filed by March 18, 1970.

Mr. Justice Marshall took no part in the consideration or decision of these matters.

Reported below: Nos. 915, 917, and 921, 305 F. Supp. 1049. Nos. 914, 916, 920, 1038, and 1057, see 304 F. Supp. 793 and 1136.


text:
    No. 963,
    Misc.
    Elkanich v. United States.

      Solicitor General Griswold for the United States.
   C. A. 9th Cir. Motion for leave to proceed in forma pauperis granted. Certiorari granted. Case transferred to appellate docket and set for oral argument immediately following No. 269 [Price v. Georgia, certiorari granted, 395 U. S. 975].


text:
    No. 753.
    No. 959.
    Sabatino, Administrator v. Curtiss National Bank of Miami Springs; and Curtiss National Bank of Miami Springs v. Sabatino, Administrator.

      IjOuís A. Sabatino, petitioner, pro se, in No. 753, and respondent, pro se, in No. 959. Lewis Horwitz for respondent in No. 753 and for petitioner in No. 959.
   C. A. 5th Cir. Certiorari denied.

Reported below: 415 F. 2d 632.


text:
    No. 813.
    Schroeder v. Prudential Insurance Co. of America.

      Bert Bader and Richard T. Marshall for petitioner. R. Philip Schulze and William Duncan for respondent.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 815.
    McCabe v. United States.

      Edward J. Caliban, Jr., for petitioner.

      Solicitor General Griswold, Assistant Attorney General Walters, Joseph M. Howard, and John M. Brant for the United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 816.
    Lodge 1746, International Association of Machinists & Aerospace Workers, AFL-CIO, et al. v. National Labor Relations Board et al.

      Plato E. Papps and Mozart G. Ratner for petitioners. Solicitor General Griswold and Arnold Ordman for National Labor Relations Board, and Guy Farmer, John A. McGuinn, and Joseph C. Wells for United Aircraft Corp., respondents.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 819.
    Ware et al. v. Royal Indemnity Corp. et al.

      Robert J. Woolsey for petitioners Ware et al. Philip N. Landa for respondents.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 850.
    C & P Plaza Department Store, Division of C & P Shopping Center, Inc. v. National Labor Relations Board et al.

      Paul C. Gartzke for petitioner. Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, Norton J. Come, and Linda Sher for respondent National Labor Relations Board.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 821.
    Hargrave v. United States.

      Stanley E. Sacks for petitioner. Solicitor General Griswold for the United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 827.
    Cherokee Laboratories, Inc., et al. v. Pierson, Executrix.

      Claude H. Bosenstein for petitioners. James R. Eagleton for respondent.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 817.
    Mastrippolito v. United States.

      Burton Marks for petitioner. Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Mervyn Hamburg for the United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 831.
    Zirinsky v. Sheehan et al.

      Bernard G. Heinzen and William J. Hempel for petitioner. Joe A. Walters and Harold J. Soderberg for respondents Sheehan et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 834.
    Grayson v. United States.

      Morris Lavine for petitioner. Solicitor General Griswold, Assistant Attorney General Walters, and Joseph M. Howard for the United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 840.
    Lacob v. United States.

      Anna R. Lavin for petitioner. Solicitor General Griswold, Assistant Attorney General Walters, Joseph M. Howard, and John P. Burke for the United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 838.
    No. 839.
    Williams et al. v. Wisconsin Barge Line, Inc.; and Wisconsin Barge Line, Inc. v. Williams et al.

      Harold Gruenberg for petitioners in No. 838. V. Lee McMahon for petitioner in No. 839 and for respondent in No. 838.
   C. A. 7th Cir. Certiorari denied.

Reported below: 416 F. 2d 28.


text:
    No. 849.
    Brook v. United States.

      E. David Rosen for petitioner. Solicitor General Griswold, Assistant Attorney General Walters, and Joseph M. Howard for the United States.
   C. A. 5th Cir.

Certiorari denied.


text:
    No. 855.
    Louisiana & Arkansas Railway Co. v. Missouri Pacific Railroad Co. et al.

      W. Scott Wilkinson and Robert E. Zimmerman for petitioner. Robert H. Stahlheber, William R. McDowell, and Murray Hudson for Missouri Pacific Railroad Co. et al., and George Mathews for Greater Baton Rouge Port Commission, respondents.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 857.
    Mitchell et ux. v. Commissioner of Internal Revenue.

      Irwin Prince for petitioners. Solicitor General Griswold, Assistant Attorney General Walters, and Joseph M. Howard for respondent.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 811.
    Nelson v. United States.

      Hume Cofer and John D. Cofer for petitioner. Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Roger A. Pauley for the United States.
   C. A. 5th Cir. Motion of petitioner to file a supplemental exhibit granted. Certiorari denied.


text:
    No. 824.
    Walker et al. v. County School Board of Brunswick County, Virginia, et al.

      Jack Greenberg, James M. Nabrit III, William Bennett Turner, S. W. Tucker, and Henry L. Marsh III for petitioners. Frederick T. Gray for respondents.
   C. A. 4th Cir. Certiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted. Mr. Justice Marshall took no part in the consideration or decision of this petition.


text:
    No. 820.
    New York State Broadcasters Assn., Inc., et al. v. United States et al.

      Robert A. Dreyer for petitioners. Solicitor General Griswold, Assistant Attorney General McLaren, Henry Getter, John H. Conlin, and Lenore G. Ehrig for the United States et al. George S. Pappagianis, Attorney General, for the State of New Hampshire as amicus curiae in support of the petition.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice Black and Mr. Justice Douglas are of the opinion that certiorari should be granted.


text:
    No. 841.
    Sylvania Electric Products, Inc. v. Columbia Broadcasting System.

      John Hoxie for petitioner.
   C. A. 1st Cir. Certio-rari denied.

Mr. Justice White is of the opinion that certiorari should be granted.


text:
    No. 823.
    Williams et al. v. Kimbrough et al.

      Jack Greenberg, James M. Nabrit III, William Bennett Turner, and Murphy W. Bell for petitioners.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted. Mr. Justice Marshall took no part in the consideration or decision of this petition.


text:
    No. 818.
    Hawaiian Oke & Liquors, Ltd. v. Joseph E. Seagram & Sons, Inc., et al.

      Joseph L. Alioto and Peter J. Dormid for petitioner. J. Garner Anthony for Joseph E. Seagram & Sons, Inc., et al., Herbert Y. C. Choy for Barton Distilling Co. et al., and Livingston Jenks for McKesson & Robbins, Inc., respondents.
   C. A. 9th Cir. Cer-tiorari denied.

Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice White are of the opinion that certiorari should be granted.


text:
    No. 846.
    Weston et al. v. United States.

      James P. Jones, Robert T. Winston, and James C. Roberson for petitioners.
   C. A. 4th Cir. Motion to dispense with printing petition granted. Certiorari denied.


text:
    No. 918.
    Providence & Worcester Co., formerly Providence & Worcester Railroad Co. v. Smith, Trustee.

      Harold I. Meyerson for petitioner. Solicitor General Griswold, Assistant Attorney General McLaren, Deputy Solicitor General Springer, Howard E. Shapiro, George Edelstein, Robert E. Gin-nane, and Leonard S. Goodman filed a memorandum for the United States et al.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice Marshall took no part in the consideration or decision of this petition.


text:
    No. 1121,
    October Term, 1967.
    Peto v. Madison Square Garden Corp. et al.,
   390 U. S. 989, 1046. Motion for leave to file second petition for rehearing denied.

The Chief Justice took no part in the consideration or decision of this motion.


text:
    No. 576.
    No. 599.
    No. 618.
    No. 360,
    No. 517,
    No. 772,
    Misc.
    Misc.
    Misc.
    Fahey v. United States, New Orleans Chapter, Associated General Contractors of America, Inc. v. United States, Gowdy v. United States, Gerardi v. Sipos et al., Castle v. United States, Cross v. Bruning, County Clerk, et al.,
   ante, p. 957;

ante, p. 115;

ante, p. 960;

ante, p. 880;

ante, p. 975; and

ante, p. 970. Petitions for rehearing denied.


text:
    February 3, 1970
    No. —.
    Sinatra v. New Jersey State Commission of Investigation et al.

      Bruce W. Kauffman and William T. Coleman, Jr., for applicant.
   Application for stay pending appeal to United States Court of Appeals denied.

Mr. Justice Black, Mr. Justice Douglas, and Mr. Justice Marshall are of the opinion that the application should be granted. Mr. Justice Brennan took no part in the consideration or decision of this application.


text:
    No. —.
    First National Bank of Cornelia v. Jackson, Superintendent of Banks of Georgia, et al.

      E. Barrett Prettyman, Jr., for applicant.

      Arthur K. Bolton, Attorney General of Georgia, Harold N. Hill, Jr., Executive Assistant Attorney General, and Robert J. Castellani, Assistant Attorney General, for Jackson, and Wm. B. Gunter for First National Bank of Gainesville, Georgia, et al., in opposition.
   Application for stay of order of United States District Court for the Northern District of Georgia presented to Mr. Justice Black, and by him referred to the Court, denied.


author: Mr. Justice Douglas,

text:
    February 6, 1970
    No. —.
    Whitcomb, Governor of Indiana v. Chavis et al.

      James Manahan on the motion.
   D. C. S. D. Ind. Emergency motion to vacate or modify the stay order of February 2, 1970 [ante, p. 1055] denied. Motion to advance denied without prejudice to its renewal following filing of statement as to jurisdiction.

Mr. Justice Douglas,

dissenting.

After a trial on June 17 and 18, 1969, a three-judge District Court entered an order on July 28,1969, in which it held the multi-member districting provisions of the present Indiana apportionment statutes unconstitutional as they applied to Marion County, Indiana. The State was given until October 1, 1969, to enact statutes redistricting the State so as to correct the constitutional infirmity. Upon the State’s failure to enact such statutes, the District Court, on December 15, 1969, entered an order establishing legislative districts in the State. This Court, on February 2, 1970, granted a stay of the District Court’s December 15 order pending the filing and disposition of an appeal from that order.

The respondents have now filed a motion to vacate the stay. I would grant the motion. The constitutionality of the present Indiana apportionment scheme was thoroughly briefed and argued in the three-judge District Court below. There is no reason to disturb the order of that court pending the disposition of the appeal by this Court. The date for the commencement of filing for the November 1970 election to the General Assembly is February 24, 1970. The Governor contends that without a stay the State will be forced to conduct the forthcoming election under the reapportionment plan of the District Court. By granting the stay, however, this Court has equally forced the respondents to go ■through the election under the present scheme which was held unconstitutional by the District Court. Under these circumstances, I see no reason to stay the order of the District Court.


text:
    No. —.
    School District of Greenville County, South Carolina, et al. v. Whittenberg et al.

      J. Covington Parham, Jr., and C. Thomas Wyclie for applicants.
   C. A. 4th Cir. Application for temporary stay presented to The Chief Justice, and by him referred to the Court, denied.


text:
    No. 1142.
    Elkanich v. United States.
   C. A. 9th Cir. [Certiorari granted, ante, p. 1057.] It is ordered that Charles A. Miller, Esquire, of Washington, District of Columbia, a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for petitioner in this case.


text:
    February 10, 1970
    No. —.
    School District of Darlington County, South Carolina, et al. v. Stanley et al.
   C. A. 4th Cir. Application for temporary stay presented to The Chief Justice, and by him referred to the Court, denied.


text:
    No. —.
    In re Rosenbaum et al.

      Robert L. Weinberg for applicants.
   D. C. D. C. Application for stay presented to The Chief Justice, and by him referred to the Court, denied.


text:
    February 13, 1970
    No. 330.
    United States v. Eisdorfer.

      Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Roger A. Pauley for the United States. Michael J. Kunstler for appellee.
   Appeal from D. C. E. D. N. Y. Appeal dismissed pursuant to Rule 60 of the Rules of this Court.


text:
    No. 637.
    United States v. Stewart.

      Solicitor General Griswold, Assistant Attorney General Wilson, and Philip R. Mona-han for the United States.
   Appeal from D. C. N. D. Cal. Appeal dismissed pursuant to Rule 60 of the Rules of this Court.


author: Mr. Justice Black, Circuit Justice.

text:
    ATLANTIC COAST LINE RAILROAD CO. v. BROTHERHOOD OF LOCOMOTIVE ENGINEERS et al.
    Decided July 16, 1969

      Dennis G. Lyons, Frank X. Friedmann, Jr., David M. Foster, John W. Weldon, and John S. Cox on the application.

      Allan Milledge and Richard L. Horn in opposition.
   Mr. Justice Black, Circuit Justice.

This is an application presented to me by the railroad to stay enforcement of an injunction issued by the United States District Court for the Middle District of Florida against the enforcement of a state court injunction restraining the union from picketing around the Moncrief Yard in Florida, a classification yard owned by the Seaboard Coast Line, the successor company to the Atlantic Coast Line Railroad. The picketing is being carried on because of a strike against the Florida East Coast Railway by its employees; there is no dispute between the Seaboard Coast Line or the Atlantic Coast Line and their employees. The union wishes to picket the Moncrief Yard, however, because many of the Florida East Coast cars are switched into it in order to carry on that railroad’s business.

At the last Term of this Court we had before us a question involving the picketing of the Jacksonville Terminal Company at Jacksonville, Florida, owned and operated by the Florida East Coast, Seaboard, Atlantic Coast Line, and Southern railroads. There an injunction was granted in the Florida state courts to restrain the union from picketing the entire terminal. This Court in a 4-to-3 opinion decided that the picketing was protected by federal law and therefore could not be enjoined by Florida. Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U. S. 369 (1969). The union here substantially relies on that case, insisting that it has the same federally protected right to picket at the Moncrief Yard that this Court held it could exercise at the Jacksonville Terminal. The District Court here enjoined the railroad from utilizing a state court injunction against picketing at Moncrief and refused the railroad’s request to stay the effectiveness of its injunction pending appeal. The Court of Appeals, however, did grant an application to suspend the effectiveness of the District Court injunction for ten days, which expires tomorrow — July 17. The question before me is whether I should suspend the effectiveness of that injunction pending a review of the District Court’s judgment.

Since 1793 a congressional enactment, now found in 28 U. S. C. § 2283, has broadly provided that federal courts cannot, with certain limited exceptions, enjoin state court proceedings. Whether this long-standing policy is violated by the District Court’s injunction here presents what appears to me to be a close, highly complex, and difficult question. Not only does it present a difficult problem but one of widespread importance, the solution of which might broadly affect the economy of the State of Florida, the United States, and interstate commerce. Under these circumstances I do not feel justified in permitting the District Court injunction to be enforced, changing the status quo at Moncrief Yard, until this Court can act for itself on the questions that will be presented in the railroad’s forthcoming petition for certiorari. For this reason an order will be issued staying the enforcement of the District Court injunction pending disposition of the petition for certiorari in this Court. To accomplish this result without undue delay it will be the duty of the railroad to expedite all actions necessary to present its petition for certiorari here.


author: Mr. Justice Douglas.

text:
    LEVY v. PARKER, WARDEN, et al.
    Decided August 2, 1969

      Charles Morgan, Jr., Reber F. Boult, Jr., Morris Brown, Henry W. Sawyer III, Anthony G. Amsterdam, Alan H. Levine, Eleanor Holmes Norton, and Melvin L. Wulf on the application.

      Solicitor General Griswold in opposition.
   Mr. Justice Douglas.

Applicant has been sentenced to three years’ imprisonment after conviction of one charge each for violating Articles 90, 133, and 134 of the Uniform Code of Military Justice, 10 U. S. C. §§ 890, 933, 934. He has exhausted all of his military remedies and has now filed a petition for a writ of habeas corpus in the District Court for the Middle District of Pennsylvania. He seeks release on bail pending determination of the merits. The District Court, the Court of Appeals, and the Circuit Justice, Mr. Justice Brennan, have each denied bail. This application to me therefore carries a special burden, for we very seldom grant an order that has been denied by the Circuit Justice. Indeed the practice is to refer such renewed application to the full Conference of this Court. We are now in recess and widely scattered; hence referral to the Conference is not immediately possible.

Some of the problems tendered seem substantial to me. One charge on which applicant stands convicted rests on Article 134 which makes a crime “all disorders and neglects to the prejudice of good order and discipline in the armed forces.” In O’Callahan v. Parker, 395 U. S. 258, which the lower courts did not have before them when they denied bail, we reserved decision on whether Article 134 satisfies the standards of vagueness required by due process. Apart from the question of vagueness is the question of First Amendment rights. While in the Armed Services, applicant spoke out against the war in Vietnam. The extent to which First Amendment rights available to civilians are not available to servicemen is a new and pressing problem.

It is true that applicant’s sentence will expire on August 14, 1969. But in light of Carafas v. LaVallee, 391 U. S. 234, I would not think that the running of the sentence would moot the petition for habeas corpus. A live controversy will continue; and I have concluded that this applicant should be released on bail until the full Court can pass on the application. For, in my view, substantial issues are presented on the merits.

The applicant, Howard B. Levy, is hereby ordered admitted to bail pending final determination of this application by the full Court when it convenes October 6, 1969.

Bail is hereby fixed in the following amount: $1,000.

Ordered this the 2d day of August, 1969.


author: Mr. Justice Douglas, Circuit Justice.

text:
    SCAGGS v. LARSEN, COMMANDING GENERAL, et al.
    Decided August 5, 1969

      Lloyd E. McMurray on the motion.
   Mr. Justice Douglas, Circuit Justice.

This is a phase of review of the action of respondents in ordering movant to active duty in the United States Army Reserve for a period of approximately 17 months beyond the term of his enlistment contract. His enlistment expires in September 1969. He was directed in January 1969 to join a unit of the Ready Reserve and attend regular drills. If his allegations are to be believed, he made a diligent effort to comply but was rejected, since his enlistment period would expire in September 1969. Up until that time he had met all the requirements of the Army Ready Reserve. He claims that the order thereafter entered requiring him to serve about 17 months beyond the end of his enlistment contract was punitive and unauthorized.

He therefore filed a petition for habeas corpus with the District Court, complaining that the crucial step taken when he was ordered to active duty was taken without notice and an opportunity to be heard in violation of procedural due process and also was in violation of the terms of his enlistment contract. The District Court denied the petition, and that decision is presently awaiting review by the Court of Appeals. Scaggs seeks by this motion release from military custody pending that review.

He rests on 28 U. S. C. § 2241 to support his claim that the District Court has jurisdiction of the habeas corpus action.

It has been argued in other cases that the word “custody” indicates that § 2241 does not reach cases where military authority is being contested by civilians at a pre-induction stage or by servicemen not yet convicted of an offense who entered the Armed Forces “voluntarily.” I take the opposed view, though the question has not been authoritatively decided. However that may be, § 2241 is not a measure of the constitutional scope of the guarantee in Art. I, §9, of the Constitution that: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

The Great Writ was designed to protect every person from being detained, restrained, or confined by any branch or agency of government. In these days it serves no higher function than when the Selective Service Boards (Oestereich v. Selective Service Bd,., 393 U. S. 233) or the military act lawlessly. I conclude, in other words, that in spite of the prejudice that exists against review by civilian courts of military action, habeas corpus is in the tradition of Oestereich wherever lawless or unconstitutional action is alleged.

As stated, the gravamen of the complaint in this case is that the critical steps forcing petitioner to serve beyond his enlistment contract were taken without notice and opportunity on his part to be heard. The statute makes no provision for a hearing. Neither did the statute in Wong Yang Sung v. McGrath, 339 U. S. 33, authorizing the deportation of aliens. But the Court said that constitutional requirements made a hearing necessary.

Neither deportation nor a military order to active duty is in form penal. But the requirement that a man serve beyond his enlistment contract may be as severe in nature as expulsion from these shores. At least the issue presented is substantial and should be resolved.

It is hereby ordered that petitioner be, and he is hereby, released on his own recognizance from any and all custody of the United States Army or the United States Army Reserve, and from compliance with the orders heretofore issued, requiring that he report for active duty at Fort Ord, California, on July 27, 1969. This order shall remain in effect until a determination of the cause on the merits by the Court of Appeals.

      “(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. . . .
      “(c) The writ of habeas corpus shall not extend to a prisoner unless—
      “(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or
      “(2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or

        “(3) He is in custody in violation of the Constitution or laws or treaties of the United States . . . .”

       With the apparent lone exception of Ex parte Fabiani, 105 F. Supp. 139, the federal courts have held that habeas corpus is not available prior to induction. See, e. g., DeRozario v. Commanding Officer, 390 F. 2d 532; Lynch v. Hershey, 93 U. S. App. D. C. 177, 208 F. 2d 523, cert. denied, 347 U. S. 917; Petersen v. Clark, 285 F. Supp. 700. Pre-induction judicial review is more frequently sought by way of injunction, mandamus, or declaratory judgment. See Oestereich v. Selective Service Bd., 393 U. S. 233; Wolff v. Selective Service Bd., 372 F. 2d 817; Townsend v. Zimmerman, 237 F. 2d 376.

       It is settled that illegal induction is properly attacked by a petition for a writ of habeas corpus. Oestereich v. Selective Service Bd., supra. The remaining debate concerns cases challenging the legality of continued military service that has been entered under a contract of enlistment. Cases denying jurisdiction to issue a writ of habeas corpus where the petitioner enlisted in the military forces include Fox v. Brown, 402 F. 2d 837; United States ex rel. McKiever v. Jack, 351 F. 2d 672; McCord v. Page, 124 F. 2d 68; In re Green, 156 F. Supp. 174. Others upholding such jurisdiction are Hammond v. Lenfest, 398 F. 2d 705; Crane v. Hedrick, 284 F. Supp. 250; cf. Jones v. Cunningham, 371 U. S. 236, 240; Orloff v. Willoughby, 345 U. S. 83, 94; Tarble’s Case, 13 Wall. 397. In United States ex rel. Schonbrun v. Commanding Officer, 403 F. 2d 371, the petitioner, a member of the Army Reserve, sought exemption from active duty on the basis of personal hardship. Although the court held that “[a]n inquiry into the legality of this restraint would be within the traditional function of the writ,” id., at 373, it further held that "[wjhether or not habeas corpus is available, the district court was free to treat the petition as one for mandamus under 28 U. S. C. § 1361.” Id., at 374.


text:
    ODEN et al. v. BRITTAIN et al.
    Decided August 13, 1969

      Oscar W. Adams, Jr., Jack Greenberg, James M. Na-brit III, and Norman C. Amaker on the application.
   Mr. Justice Black, Circuit Justice.

This is an application presented to me as Circuit Justice for an injunction to prevent the City of Anniston, Alabama, from holding a local election on September 2, 1969 — merely a few days from now — to select five members of a newly formed city council in accordance with a state law which authorizes Anniston to change from a commission to a council-manager form of government. See City Manager Act of 1953, Ala. Code App. § 1124 et seq. (1958).

The applicants, all Negro citizens of Anniston, claim that the election, if held, would violate the terms of § 5 of the Voting Rights Act of 1965, 79 Stat. 439, 42 U. S. C. § 1973c (1964 ed., Supp. I), which provides that certain Southern States or political subdivisions thereof may not make any change in the procedure of elections in effect as of November 1, 1964, unless the change is either (1) submitted to the United States Attorney General in Washington for review and he does not object, or (2) submitted to the United States District Court for the District of Columbia and that court after a hearing permits the change to be made. This procedure is of course a highly unusual departure from the basic rights of local citizens to govern their own affairs. In this case all Anniston is preparing to do is to change from a three-member commission, elected at large, to a five-member council, also elected at large.

Last Term this Court decided, over my dissent, a case which lends considerable support to the applicants’ request that no election be held until officials in Washington approve it. See Allen v. State Board of Elections, 393 U. S. 544 (1969). Even were I to accept the majority’s view in that case, I do not feel that decision necessarily controls the present situation which presents many material factual differences. More importantly I remain firmly convinced that the Constitution forbids this unwarranted and discriminatory intervention by the Eederal Government in state and local affairs. See South Carolina v. Katzenbach, 383 U. S. 301, 355-362 (1966) (opinion of Black, J.).

Intervention by the federal courts in state elections has always been a serious business. Here the city has already incurred considerable expense in preparing for an election to be held within the next three weeks. If this election were held, applicants could later bring suit to have it set aside. I thus do not see why these plans should be stopped in midstream in a case in which the legal issues are unclear, when the election cannot result in the severe irreparable harm necessary to justify the issuance of the extraordinary remedy of an injunction by an individual Justice.

In addition to the foregoing factors, the three-judge panel designated to hear this case has not yet considered the request for an injunction. While the applicants allege that the panel cannot be convened prior to the date set for the election, they have not shown that the possibilities of obtaining an immediate hearing before some three-judge court have been exhausted. There is no indication that the assistance of the Chief Judge of the Fifth Circuit, who is statutorily required by 28 IT. S. C. § 2284 (1) to designate the members of the panel, has been sought. In this situation I have considerable doubt as to my authority to grant the requested relief. See Sup. Ct. Rules 18 (2), 27, and 51 (2). Therefore I decline to issue the requested injunction. Since, however, the problem is substantial and there is room for disagreement, I deny the application without prejudice to the rights of the applicants to request relief from other members of this Court. See Sup. Ct. Rule 50 (5).

Application denied without prejudice.


author: Mr. Justice Harlan, Circuit Justice.

text:
    ROSADO et al. v. WYMAN et al.
    Decided August 20, 1969
    See: 414 F. 2d 170.

      Lee A. Albert and Robert B. Borsody on the application.

      Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshoioitz, First Assistant Attorney General, Amy Juviler, Assistant Attorney General, and Philip Weinberg in opposition.
   Mr. Justice Harlan, Circuit Justice.

While I am of the view that this case is not unlikely to be found a worthy candidate for certiorari, I am also of the opinion that the present application for an interim stay and other relief should be passed along to the full Court for consideration.

The latter conclusion follows from my belief that the factors involved in determining whether a stay should issue are such as to call for the collective judgment of the members of the Court and not merely that of an individual Justice; from the circumstance that the Court itself has already denied a similar stay application, albeit at a stage when the case was in a different posture; and from the fact that an individual Justice has no power to order an accelerated schedule for briefing and hearing on the underlying merits of the case, an aspect of the present application that seems to me importantly related to the request for a stay.

If applicants’ petition for certiorari is promptly filed, that should ensure its consideration and disposition by the Court at its first Conference in October. At that time, I shall, pursuant to Rule 50 (6), refer this application to the Court for simultaneous consideration and action.


author: Mr. Justice Brennan.

text:
    KEYES et al. v. SCHOOL DISTRICT NUMBER ONE, DENVER, COLORADO, et al.
    Decided August 29, 1969
    See: 303 F. Supp. 279 and 289.

      Jack Greenberg and Conrad K. Harper on the application.

      Richard C. Cockrell, Thomas E. Creighton, and Benjamin L. Craig in opposition.
   Mr. Justice Brennan.

In this school desegregation case I am asked to vacate a stay by the Court of Appeals for the Tenth Circuit of a preliminary injunction entered by the District Court for the District of Colorado. The preliminary injunction has the effect of requiring partial implementation of a school desegregation plan prepared by School District No. 1, Denver, Colorado, and then rescinded by that Board after changes in membership followed a school board election.

The Court of Appeals issued the stay pending decision of an appeal taken by the School Board from the preliminary injunction. I have concluded that the stay was improvidently granted and must be vacated. An order of a district court granting or denying a preliminary injunction should not be disturbed by a reviewing court unless it appears that the action taken on the injunction was an abuse of discretion. Alabama v. United States, 279 U. S. 229 (1929). Where a preliminary injunction has issued to vindicate constitutional rights, the presumption in favor of the District Court’s action applies with particular force. The Court of Appeals did not suggest that the District Court abused its discretion. On the contrary, the Court of Appeals expressly stated that the District Court’s findings of fact “represent a painstaking analysis of the evidence presented. They establish a racial imbalance in certain named schools. From the facts found, the district court either made a conclusion or drew an inference, that de jure segregation exists in named schools. Its grant of the temporary injunction is grounded on the premise that there is de jure segregation.”

The Court of Appeals nevertheless stated that it “must decide whether the public interest is best served by the maintenance of the status quo or by the acceptance of the injunctive order,” since the time before the Denver schools were to open on September 2 was insufficient to permit an examination of the record to determine whether the District Court correctly held that this was a case of de jure segregation. It may be that this inquiry was appropriate notwithstanding the presumption in favor of continuing the preliminary injunction in force. But the reasons given by the Court of Appeals for striking the balance in favor of the stay clearly supplied no support in law for its action. It was not correct to justify the stay on the ground that constitutional principles demanded only “that desegregation be accomplished with all convenient speed.” “The time for mere ‘deliberate speed’ has run out . . . .” Griffin v. County School Board, 377 U. S. 218, 234 (1964). “The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now.” Green v. County School Board, 391 U. S. 430, 439 (1968). The obligation of the District Court was to assess the effectiveness of the School Board’s plans in light of that standard. Ibid. Since the Court of Appeals not only was unable to say that the District Court’s assessment was an abuse of discretion, but agreed that it “may be correct,” the stay of the preliminary injunction was improvident.

The Court of Appeals also seems to have based its action on the premise that public support for the plan might be developed if any order awaited final hearing; the Court of Appeals stated that a plan of desegregation “must depend for its success on the understanding cooperation of the people of the area.” But the desirability of developing public support for a plan designed to redress de jure segregation cannot be justification for delay in the implementation of the plan. Cooper v. Aaron, 358 U. S. 1 (1958).

I therefore grant the application, vacate the order of the Court of. Appeals, and direct the reinstatement of the order of the District Court.


text:
    ALEXANDER et al. v. HOLMES COUNTY BOARD OF EDUCATION et al.
    Decided September 5, 1969
    See: 417 F. 2d 852.

      Jack Greenberg, James M. Nabrit III, and Norman C. Amaker on the application.

      William A. Allain, Assistant Attorney General of Mississippi, and John C. Satterfield in opposition.

      Solicitor General Griswold filed a memorandum for the United States.
   Mr. Justice Black, Circuit Justice.

For a great many years Mississippi has had in effect what is called a dual system of public schools, one system for white students only and one system for Negro students only. On July 3, 1969, the Court of Appeals for the Fifth Circuit entered an order requiring the submission of new plans to be put into effect this fall to accelerate desegregation in 33 Mississippi school districts. On August 28, upon the motion of the Department of Justice and the recommendation of the Secretary of Health, Education, and Welfare, the Court of Appeals suspended the July 3 order and postponed the date for submission of the new plans until December 1, 1969. I have been asked by Negro plaintiffs in 14 of these school districts to vacate the suspension of the July 3 order. Largely for the reasons set forth below, I feel constrained to deny that relief.

In Brown v. Board of Education, 347 U. S. 483 (1954), and Brown v. Board of Education, 349 U. S. 294 (1955), we held that state-imposed segregation of students according to race denied Negro students the equal protection of the laws guaranteed by the Fourteenth Amendment. Brown I was decided 15 years ago, but in Mississippi as well as in some other States the decision has not been completely enforced, and there are many schools in those States that are still either “white” or “Negro” schools and many that are still «¿¿-white or a¿¿-Negro. This has resulted in large part from the fact that in Brown II the Court declared that this unconstitutional denial of equal protection should be remedied, not immediately, but only “with all deliberate speed.” Federal courts have ever since struggled with the phrase “all deliberate speed.” Unfortunately this struggle has not eliminated dual school systems, and I am of the opinion that so long as that phrase is a relevant factor they will never be eliminated. “All deliberate speed” has turned out to be only a soft euphemism for delay.

In 1964 we had before us the case of Griffin v. School Board, 377 U. S. 218, and we said the following:

“The time for mere ‘deliberate speed’ has run out, and that phrase can no longer justify denying these Prince Edward County school children their constitutional rights to an education equal to that afforded by the public schools in the other parts of Virginia.” Id., at 234.

That sentence means to me that there is no longer any excuse for permitting the “all deliberate speed” phrase to delay the time when Negro children and white children will sit together and learn together in the same public schools. Four years later — 14 years after Brown I — this Court decided the case of Green v. County School Board of New Kent County, 391 U. S. 430 (1968). In that case Mr. Justice Brennan, speaking for a unanimous Court, said:

“ ‘The time for mere “deliberate speed” has run out . . . .’ The burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now.” Id., at 438-439.
“The Board must be required to formulate a new plan . . . which promise [s] realistically to convert promptly to a system without a ‘white’ school and a ‘Negro’ school, but just schools.” Id., at 442.

These cases, along with others, are the foundation of my belief that there is no longer the slightest excuse, reason, or justification for further postponement of the time when every public school system in the United States will be a unitary one, receiving and teaching students without discrimination on the basis of their race or color. In my opinion the phrase “with all deliberate speed” should no longer have any relevancy whatsoever in enforcing the constitutional rights of Negro students. The Fifth Circuit found that the Negro students in these school districts are being denied equal protection of the laws, and in my view they are entitled to have their constitutional rights vindicated now without postponement for any reason.

Although the foregoing indicates my belief as to what should ultimately be done in this case, when an individual Justice is asked to grant special relief, such as a stay, he must consider in light of past decisions and other factors what action the entire Court might possibly take. I recognize that, in certain respects, my views as stated above go beyond anything this Court has expressly held to date. Although Oreen reiterated that the time for all deliberate speed had passed, there is language in that opinion which might be interpreted as approving a “transition period” during which federal courts would continue to supervise the passage of the Southern schools from dual to unitary systems. Although I feel there is a strong possibility that the full Court would agree with my views, I cannot say definitely that it would, and therefore I am compelled to consider the factors relied upon in the courts below for postponing the effective date of the original desegregation order.

On August 21 the Department of Justice requested the Court of Appeals to delay its original desegregation timetable, and the case was sent to the District Court for hearings on the Government’s motion. At those hearings both the Department of Justice and the Department of Health, Education, and Welfare took the position that time was too short and the administrative problems too difficult to accomplish a complete and orderly implementation of the desegregation plans before the beginning of the 1969-1970 school year. The District Court found as a matter of fact that the time was too short, and the Court of Appeals held that these findings were supported by the evidence. I am unable to say that these findings are not supported. Therefore, deplorable as it is to me, I must uphold the court’s order which both sides indicate could have the effect of delaying total desegregation of these schools for as long as a year.

This conclusion does not comport with my ideas of what ought to be done in this case when it comes before the entire Court. I hope these applicants will present the issue to the full Court at the earliest possible opportunity. I would then hold that there are no longer any justiciable issues in the question of making effective not only promptly but at once — now—orders sufficient to vindicate the rights of any pupil in the United States who is effectively excluded from a public school on account of his race or color.

It has been 15 years since we declared in Brown I that a law which prevents a child from going to a public school because of his color violates the Equal Protection Clause. As this record conclusively shows, there are many places still in this country where the schools are either “white” or “Negro” and not just schools for all children as the Constitution requires. In my opinion there is no reason why such a wholesale deprivation of constitutional rights should be tolerated another minute. I fear that this long denial of constitutional rights is due in large part to the phrase “with all deliberate speed.” I would do away with that phrase completely.

Application to vacate suspension of order denied.

      “The obligation of the district courts, as it always has been, is to assess the effectiveness of a proposed plan in achieving desegregation. There is no universal answer to complex problems of desegregation; there is obviously no one plan that will do the job in every case. The matter must be assessed in light of the circumstances present and the options available in each instance. It is incumbent upon the school board to establish that its proposed plan promises meaningful and immediate progress toward disestablishing state-imposed segregation.” Green v. County School Board, supra, at 430.
      “Where [freedom of choice] offers real promise of aiding a desegregation program to effectuate conversion of a state-imposed dual system to a unitary, nonracial system there might be no objection to allowing such a device to prove itself in operation. . . .
      “The New Kent School Board’s ‘freedom-of-ehoice’ plan cairnot be accepted as a sufficient step to ‘effectuate a transition’ to a unitary system. . . .” Id., at 440-441.


text:
    MATTHEWS et al. v. LITTLE, CITY CLERK OF ATLANTA
    Decided September 9, 1969

      Frederic S. LeClercq on the application.
   Mr. Justice Black, Circuit Justice.

Applicant Ethel Mae Matthews is a prospective candidate for alderman in an Atlanta, Georgia, municipal election now scheduled for October 7. Applicant Julia Shields is a duly qualified Atlanta voter. Both applicants claim that their constitutional and statutory rights are abridged by the exclusion of potential candidates for local offices who cannot afford the filing fees fixed by an Atlanta municipal ordinance of August 26, 1969. They challenge the ordinance on the ground that fees sought to be exacted violate the Equal Protection Clause of the Fourteenth Amendment and § 5 of the Voting Rights Act of 1965, 79 Stat. 439, 42 U. S. C. § 1973c (1964 ed., Supp. I). The constitutional question appears to me to be a substantial one which calls for decision by the full Court. This question is all the more serious because a three-judge district court decided in this case that the collection of the filing fees fixed by the ordinance does unconstitutionally deny equal protection of the laws. The city election is presently set for October 7, and, although this Court meets October 6, it will not have time to consider and decide the merits of the constitutional claim before the election is to be held. The result is that applicants cannot have their case decided unless some provision is made to take care of the problem. A court-ordered postponement of the election could have a serious disruptive effect. On the other hand, the refusal or inability to pay fees deemed unconstitutional might keep serious candidates from running, thus depriving Atlanta voters of an opportunity to select candidates of their choice. Both of these undesirable consequences should be avoided if possible, and to some extent they can be. This can be done by temporarily relieving applicants from payment of the challenged fees until the entire Court has had an opportunity to pass on all the questions raised. Should the applicants’ claims be accepted by the Court, they would then never be required to pay the challenged fees. Should their claims be rejected, they would then be subject to the fees. Because the time for candidates to file notice of their candidacy is scheduled to expire on September 10, 1969, a necessary element of this order is that the city should extend the date for candidates to file notice of their candidacy at least until Tuesday, September 16, 1969. This disposition permits Atlanta to proceed with the election as now scheduled. In the alternative, Atlanta officials could decide of their own accord to postpone the municipal election until after this Court has had an opportunity to hear and decide the issues involved.

It is so ordered.


text:
    FEBRE v. UNITED STATES
    Decided September 10, 1969

      Solicitor General Griswold for the United States.
   Memorandum of

Mr. Justice Harlan, Circuit Justice.

This is an application for bail pending applicant’s appeal to the Court of Appeals from a narcotics conviction.

The Government, while not contending that the appeal is frivolous or taken for purposes of delay, seeks to support the lower court’s denial of bail on the score that it was found that applicant, if released on bail, would present a danger to the community, and further that he was a poor bail risk. See 18 U. S. C. § 3148; Fed. Rule Grim. Proc. 46 (a)(2).

My difficulty with this position is twofold: First, so far as the papers reveal, the District Court in denying bail did not “state in writing the reasons” for its action, as required by Fed. Rule App. Proc. 9 (b). Second, it does not appear why the matter was not remanded to the District Court for compliance with Rule 9 (b), as the Court of Appeals had done in the case of an earlier similar bail application by a codefendant; and neither Judge Smith, nor Judge Anderson on reapplication, otherwise explained his refusal to disturb the District Court’s determination. With no record of the proceedings below before me, I cannot assume, as the Government would have me do, that either Judge Smith or Judge Anderson regarded the District Court’s findings on remand respecting the codefendant as equally applicable to this applicant.

While I have always been particularly reluctant to interfere with a denial of bail below pending appeal to the Court of Appeals, I do not think that I should act in this instance without more light from the lower courts. I shall therefore remand the matter to Judge Smith or Judge Anderson, as the case may be, for appropriate explication, meanwhile holding this application . in abeyance.


text:
    JONES v. LEMOND, COMMANDING OFFICER, et al.
    Decided September 15, 1969
    See: 18 TJ. S. C. M. A. 513, 40 C. M. R. 225.

      Donald A. Jelinek on the application.
   Mr. Justice Douglas, Circuit Justice.

Applicant, who has been convicted by the military authorities for unauthorized absence, brought suit in the District Court for release by habeas corpus and for other ancillary relief. He apparently has exhausted all military administrative remedies, the Court of Military Appeals having denied him any relief.

His conflict with the Navy arose out of his desire to be discharged as a conscientious objector, a status he claims to have acquired some five months after his enlistment. Department of Defense Directive 1300.6, August 21, 1962, revised May 10, 1968, provides for processing such applications and states that pending decision on the application and “to the extent practicable,” the applicant “will be employed in duties which involve the minimum conflict with his asserted beliefs.”

According to the allegations, applicant made repeated attempts for 37 days to file and process his application for discharge as a conscientious objector and, if the allegations are sustained, was unable either to make a filing or obtain a hearing. He thereupon left his place of duty without authorization, thereafter surrendering himself. Once again, if his allegations are believed, he was unable to make a filing or obtain a hearing on his request for discharge as a conscientious objector. He thereupon escaped from Navy custody to obtain legal counsel who surrendered him to Navy authorities while the conscientious objector application is pending.

The basic question of law is whether improper processing of an application for discharge as a conscientious objector is a defense to court-martial proceedings.

The question will in time be decided by the Court of Appeals or by the Supreme Court as applicant has appealed from the dismissal of his petition by the District Court.

The issue tendered in this case — and in others before the Supreme Court — is that the matter of conscientious objection is of First Amendment dimensions whether based on religion, philosophy, or one’s views of a particular “war” or armed conflict. Whether that view will obtain, no one as yet knows. But if it does, the question now tendered will be of great constitutional gravity.

I express no views on the merits. But I think a substantial question is presented. A stay of a broad and sweeping character has been denied by the Court of Appeals and I would concur but for one circumstance. Confinement of applicant to the brig is apparently contemplated; and, again, if his allegations are believed, sending him there may endanger his life in view of the cruel regime which obtains in that prison.

Accordingly I have decided to grant a stay directing respondents to confine applicant in the so-called “open restricted barracks” and restraining them from confining applicant in the brig, pending disposition of this appeal on the merits.


author: Mr. Justice Marshall, Circuit Justice.

text:
    BRUSSEL v. UNITED STATES
    Decided October 10, 1969

      Ephraim London on the application.
   Mr. Justice Marshall, Circuit Justice.

Applicant was held in civil contempt by the United States District Court for the Northern District of Illinois on October 7, 1969, and was immediately confined to the Cook County jail. On the same day, the District Court denied him bail pending appeal. On October 8, applicant filed a notice of appeal to the United States Court of Appeals for the Seventh Circuit from the contempt order, and made an emergency application for bail. The Court of Appeals ordered the United States Attorney to respond to that application by October 13, next Monday. On October 9, the present application was made to me in my capacity as Circuit Justice. Though it is our usual practice to deny such requests when the courts of appeals have not yet ruled on an application for the same relief, I am constrained by the unusual circumstances of this case to depart from that practice.

Applicant was subpoenaed to appear before a federal grand jury in Chicago and to bring with him certain corporate records. Prior to his appearance before the grand jury, applicant requested, but was denied, immunity from prosecution. Before the grand jury he was asked if he was an officer of the corporations involved. To this and other questions applicant declined to answer, invoking his privilege against self-incrimination. He was taken before the District Judge, who overruled his claim of Fifth Amendment privilege, apparently on the ground of the corporate-records doctrine, Wilson v. United States, 221 U. S. 361 (1911). When applicant persisted in refusing to answer, the court ordered him jailed for civil contempt.

Curcio v. United States, 354 U. S. 118 (1957), raises serious questions concerning the validity of the contempt order. In that case, a union official, admittedly the custodian of the union’s records, refused on Fifth Amendment grounds to reveal their whereabouts to the grand jury. This Court upheld the assertion of the privilege, holding that the corporate-records exception applied only to the records themselves, not to testimony concerning them, and reiterating the established principle that “all oral testimony by individuals can properly be compelled only by exchange of immunity for waiver of privilege.” Id., at 124, citing Shapiro v. United States, 335 U. S. 1, 27 (1948).

It is true that applicant here, unlike Curcio, was cited for failure to produce the subpoenaed records, as well as for failure to testify. But the rule permitting compelled production of corporate records by their custodian may be invoked only against a party who is in fact the custodian of the records in question. Yet there appears no evidence in the record of this case that applicant is the custodian of the documents subpoenaed, or indeed that he has any connection with the corporations. Applicant thus argues that he has been jailed in the absence of any evidence supporting an essential element of the finding that he is in contempt. Cf. Thompson v. Louisville, 362 U. S. 199 (1960).

Nothing in the record suggests any substantial risk that applicant will not appear at further proceedings in his case. As far as appears, he has complied with previous orders to appear; indeed, he interrupted his honeymoon in Mexico to be present at the grand jury hearing. According to his affidavit, he has no criminal record. Given the imposition of a contempt order for an explicit assertion of the Fifth Amendment privilege, and the other circumstances of the case, I am ordering applicant released on his own recognizance pending disposition of his appeal to the Court of Appeals.


text:
    UNITED STATES ex rel. CERULLO v. FOLLETTE, WARDEN
    Decided October 16, 1969
    See: 393 F. 2d 879 and 294 F. Supp. 1283.
   Memorandum of

Mr. Justice Harlan, Circuit Justice.

Applicant requests an extension of time to file a petition for certiorari. Since, in the posture of this case, his time for filing will not expire until December 31, 1969, I perceive no necessity for an extension at this stage. No reason appears why the time remaining will not be sufficient for the preparation and filing of a petition for certiorari.

Applicant also requests a stay of the mandate of the Court of Appeals for the Second Circuit and continuance of bail pending determination of his petition for certiorari. Pursuant to the opinion of the Court of Appeals, the mandate has already issued. Treating the papers as an application for bail pending action on the petition, I note that there is no sign that applicant has made a request to the Court of Appeals, as he may under Fed. Rule App. Proc. 23 (b). In my view that court should have an opportunity to consider applicant's request before it is entertained by a Justice of this Court. Cf. U. S. Sup. Ct. Rule 27.


text:
    PARISI v. DAVIDSON, COMMANDING GENERAL, et al.
    Decided December 29, 1969

      Solicitor General Griswold in opposition.
   Mr. Justice Douglas, Circuit Justice.

Applicant claims he is a conscientious objector entitled to classification as such. The Army did not approve that classification and his appeal is now pending before the Army Board for Correction of Military Records.

Meanwhile he applied to the District Court for the Northern District of California for a writ of habeas corpus, and for an order restraining respondents from transferring him out of the Northern District of California. The District Court denied that relief but it did restrain respondents from assigning applicant “to any duties which require materially greater participation in combat activities or combat training than is required in his present duties.” The District Court retained jurisdiction of the case.

Applicant appealed to the Court of Appeals and asked for an order staying his deployment pending disposition of his appeal. That court denied his motion for a stay “on condition that Respondents produce the Appellant in this district if the appeal results in his favor.” He now seeks a stay from me, as Circuit Justice; and he represents that he is under orders to report for deployment to Vietnam the day after tomorrow, December 31, 1969.

Applicant is at present assigned to duties of “psychological counseling.” It would seem offhand that “psychological counseling” in Vietnam would be no different from “psychological counseling” in army posts here. He would, of course, be closer to the combat zones than he is at home; and he says that he could end up carrying combat weapons.

I heretofore granted like stays in cases involving deployment of alleged conscientious objectors to Vietnam. See Quinn v. Laird, 89 S. Ct. 1491. But this case is different because of the protective order issued by the District Court and the assurance given the Court of Appeals that the applicant will be delivered in the Northern District if he wins his habeas corpus case. Moreover, as the Solicitor General points out, the Secretary of the Army is a party to this action; hence the case will not become moot by the deployment.

If it were clear that applicant would win on the merits, a further protective order at this time would be appropriate. But the merits are in the hands of a competent tribunal and as yet unresolved. And I cannot assume that the Army will risk contempt by flouting the protective order of the District Court.

Application denied.


text:
    BEYER v. UNITED STATES
    Decided January 30, 1970

      Solicitor General Griswold for the United States.
   Memorandum of

Mr. Justice Harlan, Circuit Justice.

While I am always reluctant to interfere with the action of the Court of Appeals on matters of bail pending appeal to that court, I feel constrained under all the circumstances revealed by the papers before me to grant this application. Cf. Fed. Rule App. Proc. 9 (b); Febre v. United States, ante, p. 1225. This is of course without prejudice to any application by the United States for a further revocation of bail upon an appropriate showing.

      The applicant was convicted in the District Court for the Western District of New York of assaulting a federal officer in the performance of his duties, the jury being unable to reach a verdict with respect to three codefendants. After sentencing the applicant to prison, the District Court admitted him to bail in the amount of $5,000 pending appeal to the Court of Appeals. His counsel filed a notice of appeal and docketed the record in the Court of Appeals. However, no brief was filed on the applicant’s behalf at the time it was due.
      On January 5, 1970, when the applicant’s brief was seven months overdue, the United States moved to dismiss the appeal for want of prosecution. The applicant’s counsel responded, attempting to explain his failure to file a brief or to request any extension of time from either the United States Attorney or the Court of Appeals on the grounds that it resulted from an oversight and that counsel had been engaged in preparations for the retrial of the codefendants who had not been convicted at the first trial.
      Before action on the motion to dismiss the appeal, the United States also moved in the District Court for the Western District of New York for revocation of applicant’s bail pending appeal, on the ground that petitioner had been indicted in state court for burglary, criminal mischief, riot, and criminal tampering, arising out of an incident subsequent to the applicant’s conviction in this case. The District Court delayed action on that motion pending decision by the Court of Appeals on the motion to dismiss.
      On January 19, 1970, the Court of Appeals declined to dismiss the appeal, but rather granted applicant until February 9, 1970, to file his brief and appendix and revoked the order admitting him to bail. The Court of Appeals did not give a reason for the revocation of bail, and the United States does not dispute the applicant’s statement that the pending state indictment was not called to the attention of the Court of Appeals on the motion to dismiss.