text:
    CARP et al. v. TEXAS STATE BOARD OF EXAMINERS IN OPTOMETRY et al.
    No. 481.
    Decided October 23, 1967.

      Thurman Arnold, Robert E. Herzstein, Douglas E. Bergman, Quentin Keith and Price Daniel for appellants.

      Crawford C. Martin, Attorney General of Texas, George M. Cowden, First Assistant Attorney General, J. C. Davis and John Reeves, Assistant Attorneys General, Will Garwood and Tom Gee, Special Assistant Attorneys General, and A. J. Carubbi, Jr., for appellee Texas State Board of Examiners in Optometry, and Ellis Lyons, Bennett Boskey, Charles M-. Babb and Mark Martin for other appellees.
   Per Curiam.

The motions to dismiss are granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.

Mr. Justice Fortas took no part in the consideration or decision of this case.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    KIRK v. WYOMING.
    No. 50,
    Misc.
    Decided October 23, 1967.

      Bernard Roazen and Lawrence Speiser for petitioner.

      James E. Barrett, Attorney General of Wyoming, Sterling A. Case, Assistant Attorney General, Lawrence E. Johnson, Chief Special Assistant Attorney General, and Don Empfield, Special Assistant Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is reversed. Jackson v. Denno, 378 U. S. 368; Sims v. Georgia, 385 U. S. 538. The case is remanded for further proceedings not inconsistent with the opinions in those cases. Jackson v. Denno, 378 U. S., at 394-396; Sims v. Georgia, 385 U. S., at 544.

Mr. Justice Black dissents.


author: Mr. Justice Douglas Mr. Justice Harlan,

text:
    WHITEHILL v. ELKINS, PRESIDENT, UNIVERSITY OF MARYLAND, et al.
    No. 25.
    Argued October 16, 1967.
    Decided November 6, 1967.

      Sanford Jay Rosen argued the cause for appellant. With him on the brief were Elsbeth Levy Bothe and Joseph S. Kaufman.

      Loring E. Hawes, Assistant Attorney General of Maryland, argued the cause for appellees. With him on the brief was Francis B. Burch, Attorney General.

      Bernard Wolfman and Hermann I. Orentlicher filed a brief for the American Association of University Professors, as amicus curiae, in support of appellant.

      Edward C. Mackie filed a brief for the Baltimore Metropolitan Chapter of Americans for Constitutional Action, as amicus curiae, urging affirmance.
   Mr. Justice Douglas

delivered the opinion of the Court.

This suit for declaratory relief that a Maryland teacher’s oath required of appellant was unconstitutional was heard by a three-judge court and dismissed. 258 P. Supp. 589. We noted probable jurisdiction. 386 U. S. 906.

Appellant, who was offered a teaching position with the University of Maryland, refused to take the following oath:

“I,-, do hereby (Print Name— including middle initial) certify that I am not engaged in one way or another in the attempt to overthrow the Government of the United States, or the State of Maryland, or any political subdivision of either of them, by force or violence.
“I further certify that I understand the afore-going statement is made subject to the penalties of perjury prescribed in Article 27, Section 439 of the Annotated Code of Maryland (1957 edition).”

The question is whether the oath is to be read in isolation or in connection with the Ober Act (Art. 85A, Md. Ann. Code, 1957) which by §§ 1 and 13 defines a “subversive” as “. . . any person who commits, attempts to commit, or aids in the commission, or advocates, abets, advises or teaches by any means any person to commit, attempt to commit, or aid in the commission of any act intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of, the constitutional form of the government of the United States, or of the State of Maryland, or any political subdivision of either of them, by revolution, force, or violence; or who is a member of a subversive organization or a foreign subversive organization, as more fully defined in this article.” (Italics supplied.) Section 1 defines the latter terms: “subversive organization” meaning a group that would, inter alia', “alter” the form of government “by revolution, force, or violence”; “foreign subversive organization” is such a group directed, dominated, or controlled by a foreign government which engages in such activities.

The oath was prepared by the Attorney General and approved by the Board of Regents that has exclusive management of the university. It is conceded that the Board had authority to provide an oath, as § 11 of the Act directs every agency of the State which appoints, employs, or supervises officials or employees to establish procedures designed to ascertain before a person is appointed or employed that he or she “is not a subversive person.” And that term is, as noted, defined by §§ 1 and 13. Our conclusion is that, since the authority to prescribe oaths is provided by § 11 of the Act and since it is in turn tied to §§ 1 and 13, we must consider the oath with reference to § § 1 and 13, not in isolation. Nor can we assume that the Board of Regents meant to encompass less than the Ober Act, as construed, sought to cover.

If the Federal Constitution is our guide, a person who might wish to “alter” our form of government may not be cast into the outer darkness. For the Constitution prescribes the method of “alteration” by the amending process in Article V; and while the procedure for amending it is restricted, there is no restraint on the kind of amendment that may be offered. Moreover, the First Amendment, which protects a controversial as well as a conventional dialogue (Terminiello v. Chicago, 337 U. S. 1), is as applicable to the States as it is to the Federal Government; and it extends to petitions for redress of grievances (Edwards v. South Carolina, 372 U. S. 229, 235) as well as to advocacy and debate. So if §§ 1 and 13 of the Ober Act are the frame of reference in which the challenged oath is to be adjudged, we have important questions to resolve.

We are asked to treat §§ 1 and 13 as if they barred only those who seek to overthrow or destroy the Government by force or violence. Reference is made to Gerende v. Election Board, 341 U. S. 56, where, in considering the definition of “subversive” person applicable to § 15 of the Act, governing candidates for office, we accepted the representation of the Attorney General that he would advise the proper authorities in Maryland to take and adopt the narrower version of the term “subversive.” The Court of Appeals of Maryland had indicated in Shub v. Simpson, 196 Md. 177, 76 A. 2d 332, that the purpose of the Act was to reach that group, and that the words “revolution, force, or violence” in § 1 did not include a peaceful revolution but one accomplished by force or violence. Id., at 190-191, 76 A. 2d, at 337-338, In that view the “alteration” defined would be an alteration by force and violence. That construction had not yet been fashioned into an oath or certificate when Gerende reached us. That case involved an attempt by a candidate for public office in Maryland to require the election officials to dispense with an oath that incorporated the statutory language. The Court of Appeals refused the relief asked. We referred to the narrow construction of §§ 1 and 15 given in the Shub case saying:

“We- read this decision to hold that to obtain a place on a Maryland ballot a candidate need only make oath that he is not a person who is engaged fin one way or another in the attempt to overthrow the government by force or violence,’ and that he is not knowingly a member of an organization engaged in such an attempt. [196] Md. at [192], 76 A. 2d at 338. At the bar of this Court the Attorney General of the State of Maryland declared that he would advise the proper authorities to accept an affidavit in these terms as satisfying in full the statutory requirement. Under these circumstances and with this understanding, the judgment of the Maryland Court of Appeals is affirmed.” 341 U. S., at 56-57.

As we said in Baggett v. Bullitt, 377 U. S. 360, 368, n. 7, we did not pass upon or approve the statutory definition of a “subversive” person in the Gerende case. Rather we accepted the narrowing construction tendered by the Attorney General during oral argument so as to avoid the constitutional issue that was argued.

It is, however, urged that § 18 of the Act which contains a severability clause makes it possible for the Maryland Attorney General and for us to separate the wheat from the chaff that may be in §§ 1 and 13. The District Court found merit in the point. 258 F. Supp., at 596. But our difficulty goes deeper. As we have said in like situations, the oath required must not be so vague and broad as to make men of common intelligence speculate at their peril on its meaning. Baggett v. Bullitt, supra; Elfbrandt v. Russell, 384 U. S. 11; Keyishian v. Board of Regents, 385 U. S. 589. And so we are faced with the kind of problem which we thought we had avoided in Gerende.

As we have seen, §§ 1 and 13 reach (1) those who would “alter” the form of government “by revolution, force, or violence” and (2) those who are members of a subversive organization or a foreign subversive organization.

The prescribed oath requires, under threat of perjury, a statement that the applicant is not engaged “in one way or another” in an attempt to overthrow the Government by force or violence. Though we assume arguendo that the Attorney General and the Board of Regents were authorized so to construe the Act as to prescribe a narrow oath (1) that excluded “alteration” of the Government by peaceful “revolution” and (2) that excluded all specific reference to membership in subversive groups, we still are beset with difficulties. Would a member of a group that was out to overthrow the Government by force or violence be engaged in that attempt “in one way or another” within the meaning of the oath, even though he was ignorant of the real aims of the group and wholly innocent of any illicit purpose? We do not know; nor could a prospective employee know, save as he risked a prosecution for perjury.

We are in the Eirst Amendment field. The continuing surveillance which this type of law places on teachers is hostile to academic freedom. As we said in Sweezy v. New Hampshire, 354 U. S. 234, 250:

“The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any straitjacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”

The restraints on conscientious teachers are obvious. As we noted in the Elfbrandt case, even attendance at an international conference might be a trap for the innocent if that conference were predominantly composed of those who would overthrow the Government by force or violence. 384 U. S., at 16-17. “Juries might convict though the teacher did not subscribe to the wrongful aims of the organization.” Id., at 17.

In sum, we read the oath as an integral part of the Ober Act; and we undertake to read §§ 1 and 13 of that Act in light of the gloss that the Maryland courts have placed on it. We know that the Shut case says that “[a] person who advocates the overthrow of the Government of the United States . . . through force or violence could scarcely in good faith, take the constitutional oath of office . . . .” 196 Md., at 190, 76 A. 2d, at 337. (Italics supplied.) Yet that case does little more than afford the basis for argument that membership in a subversive organization means that the member must advocate a violent overthrow. This, however, is speculation, not certainty! Another Maryland case bearing on the question is Character Committee v. Mandras, 233 Md. 285, 196 A. 2d 630. There an applicant for admission to the Maryland bar answered “No” to the question “Are you now or have you ever been a subversive person as defined by the [Ober Act]?” He had apparently at one time been a member of the Communist Party. At a hearing he testified he had joined the party because he was interested in the candidacy of Henry Wallace and in the cause of civil liberties; but he denied he had been a subversive person or that he had advocated violent overthrow of the Government. The Court of Appeals affirmed the Board of Law Examiners, finding that the applicant was not a subversive person. So it can be argued that passive membership as a matter of Maryland law does not make a person a subversive. Yet, as we read §§ 1 and 13 of the Ober Act, the alteration clause and membership clause are still befogged. The lines between permissible and impermissible conduct are quite indistinct. Precision and clarity are not present. Rather we find an overbreadth that makes possible oppressive or capricious application as regimes change. That very threat, as we said in another context (NAACP v. Button, 371 U. S. 415, 432-433), may deter the flowering of academic freedom as much as successive suits for perjury.

Like the other oath cases mentioned, we have another classic example of the need for “narrowly drawn” legislation (Cantwell v. Connecticut, 310 U. S. 296, 311) in this sensitive and important First Amendment area.

Reversed.

Mr. Justice Harlan,

whom Mr. Justice Stewart and Mr. Justice White join,

dissenting.

Maryland will doubtless be surprised to learn that its meticulous efforts to conform the state “loyalty oath” to the requirements of Gerende v. Election Board, 341 U. S. 56, have been to no avail. It will also be entitled to feel baffled by an opinion which, while recognizing the continuing authority of Gerende, undertakes to bypass that decision by a process of reasoning that defies analysis.

Appellant Whitehill was denied employment in the state university as a temporary lecturer by reason of his refusal to sign an oath that more than meets the requirements of Gerende. He was asked only whether he is now, in one way or another engaged in an attempt to overthrow the Government by force or violence. References to international conferences, controversial discussions, support of minority candidates, academic freedom and the like cannot disguise the fact that Whitehill was asked simply to disclaim actual, present activity, amounting in effect to treasonable conduct. Allusions to the constitutional amending process cannot obscure the fact that this oath makes no reference to “alteration” of our form of government or to “believing in” or “being a member of” anything whatsoever. The oath itself, then, in no way violates, jeopardizes, or beclouds appellant’s freedom of speech or of association. So much, indeed, the Court’s opinion appears to concede.

The Court concludes, however, that the oath must be read “in connection with” certain sections of the Ober Law because, as a state matter, the authority of the Board of Regents to require an oath derives from that law. The Court does not pause to tell us what the “connection” is or to explain how it serves to invalidate the unambiguous oath required of this appellant. On the one hand, it is plain, as the Court artistically avoids conceding, that the only effect of the law on this appellant is to deny him state employment if he refuses to sign an oath which, in itself, he can have no constitutional objection to signing. On the other hand, nowhere does the Court suggest that the character of the oath itself is altered by any language in the statute authorizing the Regents to impose it. The oath does not refer to the statute or otherwise incorporate it by reference. It contains no terms that are further defined in the statute. In short, the oath must be judged on its own bottom.

The only thing that does shine through the opinion of the majority is that its members do not like loyalty oaths. Believing that it is not within the province of this Court to pass upon the wisdom or unwisdom of Maryland’s policy in this regard, and finding nothing unconstitutional about the oath tendered to this appellant, I would affirm the judgment of the court below.

       There is not only the provision for perjury prescribed in § 11, but also § 14 which provides in part that “Reasonable grounds on all the evidence to believe that any person is a subversive person, as defined in this article, shall be cause for discharge” of the employee. See Anti-Fascist Committee v. McGrath, 341 U. S. 123, 175, n. 1 (concurring opinion).

       Art. 15, §11, of the Maryland Constitution reads:
      “No person who is a member of an organization that advocates the overthrow of the Government of the United States or of the State of Marjdand through force or violence shall be eligible to hold any office, be it elective or appointive, or any other position of profit or trust in the Government of or in the administration of the business of this State or of any county, municipality or other political subdivision of this State.”

        Shub tells us that the Ober Act was enacted pursuant to this state constitutional provision. 196 Md., at 192, 76 A. 2d, at 338. Our attention is not drawn to, nor have we found, any severability clause applicable to this constitutional provision. It is certainly dubious, then, whether the severability clause of the Ober Act can operate to “sever” the membership clause in the definition of subversive person so that it reads more narrowly than the constitutional provision upon which the Ober Act rests.

       The oath did not even include the limited sort of “membership” clause also approved in Gerende. See the Court’s opinion, ante, at 55-56, 57-58.

       The document submitted to appellant for his signature did contain the notation customary to government documents of the authority under which it was promulgated.


author: Mr. Justice Stewart Mr. Justice Brennan, Mr. Justice Douglas,

text:
    INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, LOCAL 1291 v. PHILADELPHIA MARINE TRADE ASSOCIATION.
    No. 34.
    Argued October 12 and 16, 1967.
    Decided November 6, 1967.

      Abraham E. Freedman argued the cause for petitioners in both cases. With him on the briefs was Martin J. Vigderman.

      Francis A. Scanlan argued the cause and filed a brief for respondent in both cases.

      Edward Silver and George G. Gallantz filed a brief for the Maritime Service Committee, Inc., et al., as amici curiae, urging affirmance in both cases.

      Together with No. 78, International Longshoremen’s Association, Local 1291, et al. v. Philadelphia Marine Trade Association, also on certiorari to the same court.

   Mr. Justice Stewart

delivered the opinion of the Court.

These cases arise from a series of strikes along the Philadelphia waterfront. The petitioner union, representing the longshoremen involved in those strikes, had entered into a collective bargaining agreement in 1959 with the respondent, an association of employers in the Port of Philadelphia. The agreement included provisions for compensating longshoremen who are told after they report for duty that they will not be needed until the afternoon. The union construed those “set-back” provisions to mean that, at least in some situations, longshoremen whose employment was postponed because of unfavorable weather conditions were entitled to four hours’ pay; the association interpreted the provisions to guarantee no more than one hour’s pay under such circumstances.

In April 1965, when this disagreement first became apparent, the parties followed the grievance procedure established by their collective bargaining contract and submitted the matter to an arbitrator for binding settlement. On June 11 the arbitrator ruled that the association’s reading of the set-back provisions was correct. In July, however, a group of union members refused to unload a ship unless their employer would promise four hours’ pay for having set back their starting time from 8 a. m. to 1 p. m. The union sought to arbitrate the matter, but the association viewed the original arbitrator’s decision as controlling and instituted proceedings in the District Court to enforce it. The complaint alleged that the union had refused “to abide by the terms of the Arbitrator’s Award . . . resulting in serious loss and damage to [the] Employer . . . and to the Port of Philadelphia.” This refusal, the complaint charged, constituted “a breach of the applicable provisions of the current Collective Bargaining Agreement between the P. M. T. A. and the Union.” The complaint concluded with a prayer “that the Court set an immediate hearing and enter an order enforcing the Arbitrator’s Award, and that plaintiff may have such other and further relief as may be justified.”

Before the court could take any action, the employer had met the union’s demands and the men had returned to work. The District Court heard evidence in order to “put the facts on record” but concluded that the case was “moot at the moment” and decided simply to “keep the matter in hand as a judge [and] take jurisdiction .. . [i]f anything arises.” A similar situation did in fact arise — this time in September. Again, before the District Court could act, the work stoppage ended. The association nonetheless requested

“an order ... to make it perfectly clear to the [union] that it is required to comply with the Arbitrator’s award because we cannot operate in this port if we are going to be continually harassed by the Union in taking the position that they are not going to abide by an Arbitrator’s award . . . .”

Counsel for the union rejected that characterization of its position. He submitted that the set-back disputes of July and September were distinguishable from the one which occurred in April, and that the arbitrator’s decision of June 11, 1965, resolving the April controversy, was not controlling. The District Court expressed no opinion on any of these contentions but simply entered a decree, dated September 15, 1965, requiring that the arbitrator’s award “issued on June 11,1965, be specifically enforced.” The decree ordered the union “to comply with and to abide by the said Award.” It contained no other command.

When the District Court first indicated that it would issue such a decree, counsel for the union asked the court for clarification:

“Mr. Freedman: Well, what does it mean, Your Honor?
“The Court: That you will have to determine, what it means.
“Mr. Freedman: Well, I am asking. I have to give my client advice and I don’t know what it means. I am asking Your Honor to tell me what it means. It doesn’t—
“The Court: You handled the case. You know about it. . . .
“Mr. Freedman: I am telling you very frankly now I don’t know what this order means, this proposed order. It says, ‘Enforcement of the award.’ Now, just what does it mean? . . . The arbitration . . . involved an interpretation of the contract under a specific set of facts .... Now, how do you enforce it? That case is over and done with. These are new cases. Your Honor is changing the contract of the parties when you foreclose them from going to arbitration on this point again.”
“The Court: The Court has acted. This is the order.
“Mr. Freedman: Well, won’t Your Honor tell me what it means?
“The Court: You read the English language and I do.”

Although the association had expressly told the District Court that it was “not seeking to enjoin work stoppages,” counsel for the union asked whether the decree might nonetheless have that effect:

“Mr. Freedman: . . . Does this mean that the union cannot engage in a strike or refuse to work or picket?
“The Court: You know what the arbitration was about. You know the result of the arbitration.
“I have signed the order. Anything else to come before us?
“Mr. Freedman: I know, but Your Honor is leaving me in the sky. I don’t know what to say to my client.
“Mr. Scanlan: No, I have nothing further, Your Honor.
“The Court: The hearing is closed.”

Thus, despite counsel’s repeated requests, the District Judge steadfastly refused to explain the meaning of the order.

When further set-back disputes disrupted work throughout the Port of Philadelphia in late February 1966, the District Court issued a rule to show cause why the union and its officers should not be held in contempt for violating the order of September 15. Throughout the contempt hearing held on March 1, 1966, counsel for the union sought without success to determine precisely what acts by the union, its officers, or its members were alleged to have violated the court’s order. “We have a right to know,” he said, “what it is that we are being accused of . . . .” The District Judge refused to comment. At some points in the proceedings, it appeared that the alleged violation consisted of the work stoppage during the last few days of February; but at other times the inquiry focused upon the union’s request for a grievance meeting on February 28 to discuss the latest set-back problem. “Why,” counsel for the association asked, did the union seek “to rearbitrate the award . . . ?” As the contempt hearing drew to a close, counsel for the association suggested yet another possibility — that union officials violated the District Court’s decree when they “castigated” the arbitrator’s award and failed to “tell [the men] that their work stoppage was unauthorized” under the award entered some eight months earlier. “[I]n failing to do that,” counsel said, “they have shown that they do not intend to abide by the arbitrator’s award which was the essence of the order which Your Honor issued . . . .”

Invited to make a closing argument, counsel for the union said:

“I really don’t know what to address myself to because I don’t know what it is we are being charged with. Are we being charged because we want to arbitrate or because we asked to invoke the provisions or are we being charged for something else? . . .
“I may say to Your Honor that we have been shooting in the dark here now, trying to guess at what may be an issue . . . .”

But the District Judge evidently felt no need for explanation. After a short recess, the court announced that the dock strike was “illegal . . . under the circumstances,” and that the union had “violated the order of this Court and therefore shall be adjudged in civil contempt.” After extending the contempt holding to “the officers and the men who participated,” the court fined the union $100,000 per day, retroactive to 2 p. m., March 1, 1966, when the contempt hearing began, and every day thereafter “as long as the order of this Court is violated.” The Court of Appeals affirmed both the original decree of the District Court and its subsequent contempt order, and we granted certiorari to consider the questions presented by these two judgments.

Much of the argument in the Court of Appeals and in this Court has centered upon the District Court’s power to issue the order of September 15, 1965. The union maintains that the order was an injunction against work stoppages and points out that in Sinclair Refining Co. v. Atkinson, 370 U. S. 195, we held that, because of the Norris-LaGuardia Act, a federal court cannot enjoin a work stoppage even when the applicable collective bargaining agreement contains a no-strike clause. The association, on the other hand, argues that the order no more than enforced an arbitrator’s award, and points out that in Textile Workers Union v. Lincoln Mills, 353 U. S. 448, we held that, under § 301 of the Labor Management Relations Act, a federal court may grant equitable relief to enforce an agreement to arbitrate. The parties have strenuously argued the applicability of Sinclair and Lincoln Mills to the facts before us. We do not, however, reach the underlying questions of federal labor law these arguments present. For whatever power the District Court might have, possessed under the circumstances disclosed by this record, the conclusion is inescapable that the decree which the court in fact entered was too vague to be sustained as a valid exercise of federal judicial authority.

On its face, the decree appears merely to enforce an arbitrator’s award. But that award contains only an abstract conclusion of law, not an operative command capable of “enforcement.” When counsel for the union noted this difficulty and sought to ascertain the District Court’s meaning, he received no response. Even at the contempt hearing on Marchrl, the union was not told how it had failed to “comply with and . . . abide by the [Arbitrator’s] Award,” in accordance with the District Court’s original order. That court did express the view on March 1 that the February walkouts had been “illegal . . . under the circumstances.” But such strikes would have been “illegal” — in the sense that they would have been violative of the collective bargaining agreement — even if the District Court had entered no order at all, Teamsters Local v. Lucas Flour Co., 369 U. S. 95, and the record does not reveal what further “circumstances” the court deemed relevant to the conclusion that the union had violated its decree. Thus the September 15 decree, even when illuminated by subsequent events, left entirely unclear what it demanded.

Rule 65 (d) of the Federal Rules of Civil Procedure was designed to prevent precisely the sort of confusion with which this District Court clouded its command. That rule provides:

“Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.”

Whether or not the District Court’s order was an “injunction” within the meaning of the Norris-LaGuardia Act, it was an equitable decree compelling obedience under the threat of contempt and was therefore an “order granting an injunction” within the meaning of Rule 65 (d). Viewing the decree as “specifically enforcing” the arbitrator’s award would not alter this conclusion. We have previously employed the term “mandatory injunction” to describe an order compelling parties to abide by an agreement to arbitrate, and there is no reason to suppose that Rule 65 (d) employed the injunction concept more narrowly. That rule is the successor of § 19 of the Clayton Act. Section 19 was intended to be “of general application,” to the end that “[defendants . . . never be left to guess at what they are forbidden to do . . . .” Consistent with the spirit and purpose of its statutory predecessor, we have applied Rule 65 (d) in reviewing a judgment enforcing an order of the National Labor Relations Board, and the courts of appeals have applied the rule not only to prohibitory injunctions but to enforcement orders and affirmative decrees as well. We have no doubt, therefore, that the District Court's decree, however it might be characterized for other purposes, was an “order granting an injunction” for purposes of Rule 65 (d).

The order in this case clearly failed to comply with that rule, for it did not state in “specific . . . terms” the acts that it required or prohibited. The Court of Appeals viewed this error as “minor and in no way decisional.” We consider it both serious and decisive.

The judicial contempt power is a potent weapon. When it is founded upon a decree too vague to be understood, it can be a deadly one. Congress responded to that danger by requiring that a federal court frame its orders so that those who must obey them will know what the court intends to require and what it means to forbid. Because the decree of this District Court was not so framed, it cannot stand. And with it must fall the District Court’s decision holding the union in contempt. We do not deal here with a violation of a court order by one who fully understands its meaning but chooses to ignore its mandate. We deal instead with acts alleged to violate a decree that can only be described as unintelligible. The most fundamental postulates of our legal order forbid the imposition of a penalty for disobeying a command that defies comprehension.

Reversed.

Mr. Justice Brennan,

concurring in result.

I concur in the result. But, like my Brother Douglas, I emphasize that today’s disposition in no way implies that Sinclair Refining Co. v. Atkinson, 370 U. S. 195, determines the applicability of the Norris-LaGuardia Act to an equitable decree carefully fashioned to enforce the award of an arbitrator authorized by the parties to make final and binding interpretations of the collective bargaining agreement.

Mr. Justice Douglas,

concurring in part and dissenting in part.

I would reverse in No. 78 and in No. 34 remand the case to the District Court for further proceedings.

If the order of the District Court is an “injunction” within the meaning of Rule 65 (d), then I fail to see why it is not an “injunction” within the meaning of the Norris-LaGuardia Act. Legal minds possess an inventive genius as great as that of those who work in the physical sciences. Perhaps a form of words could be worked out which would employ the science of semantics to distinguish the Norris-LaGuardia Act problem from the present one. I for one see no distinction; and since I feel strongly that Sinclair Refining Co. v. Atkinson, 370 U. S. 195, caused a severe dislocation in the federal scheme of arbitration of labor disputes, I think we should not set our feet on a path that may well lead to the eventual reaffirmation of the principles of that case. My Brother Stewart expressly reserves the question whether the present order is an injunction prohibited by the Norris-LaGuardia Act. Despite this qualification, once we have held that the order constitutes an “injunction,” the District Court on remand would likely consider Sinclair, which is not overruled, controlling and apply it to preclude the issuance of another order.

We held in Textile Workers Union v. Lincoln Mills, 353 U. S. 448, that a failure to arbitrate was not part and parcel of the abuses against which the Norris-LaGuardia Act was aimed. We noted that Congress, in fashioning § 301 of the Labor Management Relations Act, was seeking to encourage collective bargaining agreements in which the parties agree to refrain from unilateral disruptive action, such as a strike, with respect to disputes arbi-trable by the agreement. Hence, if unions could break such agreements with impunity, the congressional purpose might well be frustrated. Although § 301 does not in terms address itself to the question of remedies, it commands the District Court to hold the parties to their contractual scheme for arbitration — the “favored process for settlement,” as my Brother Brennan said in dissent in Sinclair, 370 U. S., at 216. I agree with his opinion that there must be an accommodation between the Norris-LaGuardia Act and all the other legislation on the books dealing with labor relations. We have had such an accommodation in the case of railroad disputes. See Brotherhood of Railroad Trainmen v. Chicago R. & I. R. Co., 353 U. S. 30. With respect to § 301, “Accommodation requires only that the anti-injunction policy of Norris-LaGuardia not intrude into areas, not vital to its ends, where injunctive relief is vital to a purpose of § 301; it does not require unconditional surrender.” 370 U. S., at 225.

It would be possible, of course, to distinguish Sinclair from the instant cases. In these cases, the relief sought was a mandate against repetition of strikes over causes covered by the arbitrator’s award. The complaint below alleged that the union’s “refusal to comply with the terms of the Arbitrator’s Award constitutes a breach of the applicable provisions of the current Collective Bargaining Agreement . . . .” Respondent asked that the court “enter an order enforcing the Arbitrator’s Award, and that plaintiff may have such other and further relief as may be justified.” We do not review here, as in Sinclair, a refusal to enter an order prohibiting unilateral disruptive action on the part of a union before that union has submitted its grievances to the arbitration procedure provided by the collective bargaining agreement. Rather, the union in fact submitted to the arbitration procedure established by the collective bargaining agreement but, if the allegations are believed, totally frustrated the process by refusing to abide by the arbitrator’s decision. Such a “heads I win, tails you lose,” attitude plays fast and loose with the desire of Congress to encourage the peaceful and orderly settlement of labor disputes.

The union, of course, may have acted in good faith, for the new dispute may have been factually different from the one which precipitated the award. Whether or not it was, we do not know. To make the accommodation which the Textile Workers case visualizes as necessary between the policy of encouraging arbitration on the one hand and the Norris-LaGuardia restrictions on the other, the basic case must go back for further and more precise findings and the contempt case must obviously be reversed. See Sinclair, 370 U. S., at 228-229 (dissenting opinion).

         The 1959 agreement provided in Article 9 (a) that “Men employed from Monday to Sunday, inclusive, shall be guaranteed four (4) hours’ pay for the period between 8:00 A. M. and 12:00 Noon, regardless of any condition.” Article 9 (h) provided that “If a ship is knocked off on account of inclement weather by the Ship’s Master or his authorized representative, the men will be paid the applicable guarantee, but in the event the men knock off themselves, they will be paid only for the time worked, regardless of guarantee provided for in this Agreement.”
      A Memorandum of Settlement, effective October 1, 1964, provided in Article 10 (5) that “[f]or work commencing at 8 AM on Monday or at 8 AM on the day following a holiday,” employers would “have the right because of non-arrival of a vessel in port to cancel the gangs by 7:30 A. M.” Article 10 (6) then stated: “Gangs ordered for an 8 AM start Monday through Friday can be set back at 7:30 AM on the day of work to commence at 1 PM at which time a four hour guarantee shall apply. A one hour guarantee shall apply for the morning period unless employed during the morning period.”
      Article 16 of the Memorandum of Settlement adopted the provisions of the 1959 agreement by reference, with the proviso that, in cases of conflict, “the provisions of [the Memorandum] shall prevail.”

       Article 28 of the 1959 agreement, unchanged by the Memorandum of Settlement, provided:
      “All disputes and grievances of any kind or nature whatsoever arising under the terms and conditions of this agreement, and all questions involving the interpretation of this agreement other than any disputes or grievances arising under the terms and conditions of paragraph 13 (d) hereof, shall be referred to a Grievance Committee, which shall consist of two members selected by the Employers and two members selected by the Union. . . . Should the Grievance Committee be unable to resolve the issue submitted and should neither party request an immediate decision from the Arbitrator, then the grievance or dispute shall be submitted to a Joint Grievance Panel consisting of three representatives of the Association and three representatives of the Union. To the end that there shall be no work interruptions and to the end that there shall be limited necessity for arbitration, the Panel shall make every effort to resolve all grievances or disputes which could not be resolved by the Grievance Committee. . . . Should the Panel be unable to resolve a grievance or dispute which arose in the previous two weeks, or be unable to resolve a grievance or dispute anticipated in the ensuing two weeks, the dispute or grievance, including matters of interpretation of the contract, shall be referred to an Impartial Arbitrator who shall be selected to serve for a period of one year from a panel of five arbitrators to be submitted by the American Arbitration Association. . . . The Arbitrator thus selected shall conduct his hearings and procedures in accordance with the Rules of the American Arbitration Association, except that he shall be obliged to render his decision within forty-eight hours of the conclusion of his hearings or procedures. . . . Should the terms and conditions of this agreement fail to specifically provide for an issue in dispute, or should a provision of this agreement be the subject of disputed interpretation, the Arbitrator shall consider port practice in resolving the issue before him. If the Arbitrator determines that there is no port practice to assist him in determining an issue not specifically provided for in the collective bargaining agreement, or no port practice to assist him in resolving an interpretation of the agreement,, the issue shall become the subject of negotiation between the parties. There shall be no strike and no lock-out during the pendency of any dispute or issue while before the Grievance Committee, the Joint Panel, or the Arbitrator.”

       The text of the arbitrator’s award was this:
      “The contention of the Employer, the Philadelphia Marine Trade Association, is hereby sustained and it is the Arbitrator’s determination that Section 10 (6) of the Memorandum of Settlement dated February 11, 1965, providing gangs ‘ordered for an 8 AM start Monday through Friday can be set back at 7:30 AM on the day of work to commence at 1 PM, at which time a 4 hour guarantee shall apply. A 1 hour guarantee shall apply for the morning period unless employed during the morning period,’ may be invoked by the Employer without qualification.
      “The contention of the Union, the International Longshoremen’s Association, Local No. 1291, that Section 10 (6) of the Memorandum of Settlement dated February 11, 1965, referred to above, can only be invoked by the Employer because of non-arrival of a vessel in port, is denied.”

         The union’s position in this regard was twofold. It maintained, first, that even if the July and September disputes had been factually identical to that of April, it was "quite clear . . . from past practice and from-the agreement itself that ... the award as to [any given] dispute relates only to that dispute and is not controlling so far as any future dispute is concerned.” The union contended, second, that the disputes were factually different in at least one crucial respect: In the later disputes, the longshoremen were not notified of the set-back by 7:30 a. m., as required by Article 10 of the Memorandum of Settlement. The arbitrator’s award, by its own terms, dealt only with situations in which longshoremen were “set back at 7:30 a. m.” Counsel for the association seemingly agreed that the question of notice thus presented an independently arbi-trable issue. He said: “[T]he factual issues as far as whether or not there was notice . . . should be brought up under the grievance procedure which is in the contract.” “The question of notification,” he agreed, “was not a matter in the arbitrator's award.” He stated that the time and method of notification had not changed from April to September but he conceded that the problem “was never brought to [the arbitrator’s] attention by the parties.” On this basis, counsel for the union said that his adversary had “admitted on the stand that this situation goes beyond the arbitrator’s award.” The District Judge thought otherwise: “You have added words to his mouth, my dear boy, and that you can’t do.”

       The full text of the decree was this:
      “Order — September 15, 1965
      “And Now to Wit, This 15th day of September, 1965, after hearing, it is hereby ordered, adjudged and decreed that the Arbitrator’s Award in the matter of arbitration between the Philadelphia Marine Trade Association and International Longshoremen’s Association Local 1291, issued on June 11, 1965, be specifically enforced by defendant, International Longshoremen’s Association Local 1291, and the said defendant is hereby ordered to comply with and to abide by the said Award.
      “By the Court.
      ‘Ralph C. Body, J.”

       At the hearing following the July work stoppage, the District Judge had agreed that, as to factual situations going “beyond the arbitrator’s award, the union is not bound.” The union thus attempted to prove at the contempt hearing on March 1 that the February disputes, like those of the previous July and September, went beyond the arbitrator’s award in that they raised a separate question of notice. Cf. n. 4, supra. The District Judge did not comment upon this aspect of the case in holding the union guilty of contempt.

       365 F. 2d 295, 368 F. 2d 932.

       386 U. S. 907, 387 U. S. 916.

       Other issues have been argued as well. In light of our disposition of these cases, we do not reach them.

         Textile Workers Union v. Lincoln Mills, 353 U. S. 448, upheld federal judicial power to issue such an enforcement order. In Sinclair Refining Co. v. Atkinson, 370 U. S. 195, we described “the equitable relief granted in” Lincoln Mills as “a mandatory injunction to carry out an agreement to arbitrate.” Id., at 212.

       38 Stat. 738, 28 U. S. C. § 383 (1940 ed.).

       H. R. Rep. No. 627, 63d Cong., 2d Sess., 26 (1914); S. Rep. No. 698, 63d Cong., 2d Sess., 21 (1914).

        Regal Knitwear Co. v. Board, 324 U. S. 9, 13-15.

       See, e. g., International Brotherhood v. Keystone F. Lines, 123 F. 2d 326, 330 (C. A. 10th Cir.); NLRB v. Birdsall-Stockdale Motor Co., 208 F. 2d 234, 236-237 (C. A. 10th Cir.); English v. Cun

        ningham, 106 U. S. App. D. C. 70, 77-78, 269 F. 2d 517, 524-525. Cf. Brumby Metals, Inc. v. Bargen, 275 F. 2d 46, 48-50 (C. A. 7th Cir.); Miami Beach Federal Savings & Loan Assn. v. Callander, 256 F. 2d 410, 415 (C. A. 5th Cir.).

       365 F. 2d 295, 301.


author: Per Curiam. Mr. Justice Harlan

text:
    UMANS v. UNITED STATES.
    No. 41.
    Argued October 11, 1967.
    Decided November 6, 1967.

      Edward Brodsky argued the cause for petitioner. With him on the briefs was William Esbitt.

      Sidney M. Glaser argued the cause for the United States. With him on the brief were Acting Solicitor General Spritzer, Assistant Attorney General Vinson and Beatrice Rosenberg.

   Per Curiam.

The writ of certiorari is dismissed as improvidently granted.

Mr. Justice Harlan

would affirm the judgment of the Court of Appeals substantially for the reasons stated in Judge Waterman’s opinion for that court in United States v. Umans, 368 F. 2d 725.

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


author: Per Curiam. Mr. Justice Black,

text:
    BECKLEY NEWSPAPERS CORP. v. HANKS.
    No. 467.
    Decided November 6, 1967.

      Thurman Arnold and Jack A. Mann for petitioner.

      Harry O. Camper, Jr., for respondent.
   Per Curiam.

The petition for certiorari is granted.

Respondent Hanks is the elected Clerk of the Criminal and Circuit Courts of Raleigh County, West Virginia. He brought this libel action in the West Virginia Circuit Court, Wyoming County, alleging that during his reelection campaign he was libeled by three editorials, highly critical of his official conduct, which appeared in petitioner’s morning newspaper. The jury returned a verdict for respondent and awarded him $5,000 damages. The State Supreme Court of Appeals denied petitioner's application for appellate review.

Although this action was tried subsequent to the decisions of this Court in New York Times Co. v. Sullivan, 376 U. S. 254 (1964); Garrison v. Louisiana, 379 U. S. 64 (1964); Henry v. Collins, 380 U. S. 356 (1965); and Rosenblatt v. Baer, 383 U. S. 75 (1966), and despite the fact that it was recognized at trial that the principles of New York Times were applicable, the case went to the jury on instructions which were clearly impermissible. The jury was instructed in part that it could find for the respondent if it were shown that petitioner had published the editorials “with bad or corrupt motive,” or “from personal spite, ill will or a desire to injure plaintiff.” Because petitioner failed to object to this erroneous interpretation of New York Times at trial, and in fact offered instructions which were themselves inadequate, the issue of these instructions is not before us. However, since it is clear that the jury verdict was rendered upon instructions which misstated the law and since petitioner has properly challenged the sufficiency of the evidence, we have undertaken an independent examination of the record as a whole “so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.” New York Times Co. v. Sullivan, supra, at 285. See Curtis Publishing Co. v. Butts, 388 U. S. 130, 156-159 (1967) (opinion of Mb. Justice Harlan); id., at 168-170 (opinion of The Chief Justice).

In New York Times we held that the Constitution forbids recovery of damages in a civil libel action by a public official, such as respondent, “for a defamatory falsehood relating to his offioial conduct unless he proves that the statement was made with 'actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” 376 TJ. S., at 279-280. Our examination of the whole record satisfies us that “the proof presented to show actual malice lacks the convincing clarity which the constitutional standard demands . . . .” 376 U. S., at 285-286.

We put aside the question whether the proofs show that the allegedly libelous statements were false. If false, respondent did not and does not contend that petitioner published the statements with knowledge of their falsity. His contention was and is that the proofs were sufficient for the jury to find that petitioner published the statements with reckless disregard of whether they were false or not. However, virtually the only evidence we find bearing on that question relates to one of the editorials critical of the opposition of respondent and another public official, Mrs. Elinor Hurt, president of the county board of health, to fluoridation of the local water supply. That editorial, captioned “The Fluoridation Situation Remains Unchanged,” was directed primarily at Mrs. Hurt’s opposition but also included the following:

“Here, again, [Mrs. Hurt] seems to want to follow in the footsteps of Hanks. For it was Hanks who ordered over the telephone once that he did not want his name to appear in the Beckley Post-Herald again. He backed up this order with an inexplicit threat — one merely intended to frighten those who are easily intimidated.
“The only conclusion to which we can come is that either Hanks and Mrs. Hurt have been in league toward the fanatic end, believing all the wild-eyed ravings against fluoridation despite decades of experience to disprove them, or that perhaps his blustering threats were able to intimidate the lady.” (Emphasis added.)

Respondent’s argument is that since both he and Mrs. Hurt testified and denied any threats or intimidation, the following testimony of petitioner’s president and general manager on cross-examination provides “convincing proof” of the absence of prior investigation which entitled the jury to find that the “offending charges” were published with reckless disregard of whether they were false or true:

“Q. But you can’t tell this jury that any specific investigation was made before this man was attacked in any of these articles, can you?
“A. We watch the activities of the public servant. You don’t have to make an investigation. His whole life is out in front of everybody.
“Q. Those editorials were not written by anybody who wanted to find out whether or not he threatened Mrs. Hurt, were they?
“A. There was cause on their part to feel there was that possibility.
“Q. That possibility?
“A. That’s right. ‘Perhaps,’ they said.
“A. It was our opinion that that was as near the facts and truth as we could get.” (Tr. 121-122.)

We reject respondent’s contention. Neither this passage nor anything else in the record reveals “the high degree of awareness of . . . probable falsity demanded by New York Times . . . .” Garrison v. Louisiana, 379 U. S. 64, 74; it cannot be said on this record that any failure of petitioner to make a prior investigation constituted proof sufficient to present a jury question whether the statements were published with reckless disregard of whether they were false or not. Cf. New York Times Co. v. Sullivan, supra, at 287-288; Time, Inc. v. Hill, 385 U. S. 374, 388-389 (1967). See also Curtis Publishing Co. v. Butts, supra, at 153-154 (opinion of Mr. Justice Harlan).

The judgment is reversed, and the case remanded to the Circuit Court of West Virginia, Wyoming County, for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Black,

whom Mr. Justice Douglas joins,

concurs in the result for the reasons stated in his concurring opinions in New York Times Co. v. Sullivan, 376 U. S. 254, 293, and Garrison v. Louisiana, 379 U. S. 64, 79.

Mr. Justice Fortas took no part in the consideration or decision of this case.

      When asked whether she had ever brought suit against petitioner for these or other statements, Mrs. Hurt replied, “No, sir, I have big broad shoulders.” (Tr. 49.)


text:
    GARNER v. YEAGER, WARDEN, et al.
    No. 704.
    Decided November 6, 1967.
   Per Curiam.

Certiorari was granted in this case on October 9, 1967. The judgment of the Court of Appeals for the Third Circuit is vacated and the case is remanded to the District Court of New Jersey for further proceedings consistent with this opinion.

Petitioner sought federal habeas corpus on the ground, among others, that prior to his state trial, the assistant prosecutor who handled the prosecution concealed the existence of a promise or agreement to recommend a specific sentence or leniency for an accomplice who testified as a State’s witness against petitioner. The District Court rejected the claim without a hearing and upon its examination of the trial record, the record upon a motion for new trial, and the decision of the Supreme Court of New Jersey at 43 N. J. 209, 203 A. 2d 177. However, subsequent to the entry of the judgment of the Court of Appeals on April 7, 1967, the Supreme Court of New Jersey, on July 5, 1967, in a state post-conviction proceeding brought by petitioner’s co-defendant Taylor, under N. J. Rev. R. 3:10A, granted Taylor a new trial after a trial court hearing on similar allegations. State v. Taylor, 49 N. J. 440, 231 A. 2d 212. In that circumstance the judgment of the Court of Appeals is vacated and the case is remanded to the District Court for reconsideration of petitioner's claim in light of the action of the Supreme Court of New Jersey in State v. Taylor. The District Court’s reconsideration may include whether petitioner should be required first to exhaust any remedy which may be available in the state courts.

It is so ordered.


text:
    BALTIMORE & OHIO CHICAGO TERMINAL RAILROAD CO. et al. v. UNITED STATES et al.
    No. 539.
    Decided November 6, 1967.

      John H. Gobel for appellants.

      Acting Solicitor General Spritzer, Assistant Attorney General Turner, Robert W. Ginnane and Nahum Litt for the United States et al., and Don McDevitt for Atchison, Topeka & Santa Fe et al., appellees.
   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.


text:
    CHANCE v. CALIFORNIA.
    No. 306,
    Misc.
    Decided November 6, 1967.

      Marshall W. Krause for petitioner.

      Thomas C. Lynch, Attorney General of California, and Robert R. Granucci and Michael J. Phelan, Deputy Attorneys General, for respondent.
   Per Curiam.

The motion to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is reversed. Redrup v. New York, 386 U. S. 767.

Mr. Justice Harlan

would affirm for the reasons set forth in his separate opinion in Roth v. United States, 354 U. S. 476, 496, 500-503, and in his dissenting opinion in Memoirs v. Massachusetts, 383 U. S. 413, 455.


author: Mr. Chief Justice Warren Mr. Justice Black,

text:
    WILL, U. S. DISTRICT JUDGE v. UNITED STATES.
    No. 36.
    Argued October 17-18, 1967.
    Decided November 13, 1967.

      Harvey M. Silets argued the cause and filed briefs for petitioner.

      Richard A. Posner argued the cause for the United States. With him on the brief were Acting Solicitor General Spritzer, Assistant Attorney General Rogovin and Joseph M. Howard.

   Mr. Chief Justice Warren

delivered the opinion of the Court.

The question in this case is the propriety of a writ of. mandamus issued by the Court of Appeals for the Seventh Circuit to compel the petitioner, a United States District Judge, to vacate a portion of a pretrial order in a criminal case.

Simmie Horwitz, the defendant in a criminal tax evasion case pending before petitioner in the Northern District of Illinois, filed a motion for a bill of particulars, which contained thirty requests for information. The Government resisted a number of the requests, and over the course of several hearings most of these objections were either withdrawn by the Government or satisfied by an appropriate narrowing of the scope of the bill of particulars by petitioner. Ultimately the dispute centered solely on defendant’s request number 25. This request sought certain information concerning any oral statements of the defendant relied upon by the Government to support the charge in the indictment. It asked the names and addresses of the persons to whom such statements were made, the times and places at which they were made, whether the witnesses to the statements were government agents and whether any transcripts or mem-oranda of the statements had been prepared by the witnesses and given to the Government. After considerable discussion with counsel for both sides, petitioner ordered the Government to furnish the information. The United States Attorney declined to comply with the order on the grounds that request number 25 constituted a demand for a list of prosecution witnesses and that petitioner had no power under Rule 7 (f) of the Federal Rules of Criminal Procedure to require the Government to produce such a list.

Petitioner indicated his intention to dismiss the indictments against Horwitz because of the Government’s refusal to comply with his order for a bill of particulars. Before the order of dismissal was entered, however, the Government sought and obtained ex parte from the Seventh Circuit a stay of all proceedings in the case. The Court of Appeals also granted the Government leave to file a petition for a writ of mandamus and issued a rule to show cause why such a writ should not issue to compel petitioner to strike request number 25 from his bill of particulars order. This case was submitted on the briefs, and the Court of Appeals at first denied the writ. The Government petitioned for reconsideration, however, and the Court of Appeals, without taking new briefs or hearing oral argument, reversed itself and without opinion issued a writ of mandamus directing petitioner “to vacate his order directing the Government to answer question 25 in defendant's motion for bill of particulars.” We granted certiorari, 386 U. S. 955 (1967), because of the wide implications of the decision below for the orderly administration of criminal justice in the federal courts. We vacate the writ and remand the case to the Court of Appeals for further proceedings.

Both parties have devoted substantial argument in this Court to the propriety of petitioner’s order. In our view of the case, however, it is unnecessary to reach this question. The peremptory writ of mandamus has traditionally been used in the federal courts only “to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.” Roche v. Evaporated Milk Assn., 319 U. S. 21, 26 (1943). While the courts have never confined themselves to an arbitrary and technical definition of “jurisdiction,” it is clear that only exceptional circumstances amounting to a judicial “usurpation of power” will justify the invocation of this extraordinary remedy. De Beers Consol. Mines, Ltd. v. United States, 325 U. S. 212, 217 (1945). Thus the writ has been invoked where unwarranted judicial action threatened “to embarrass the executive arm of the Government in conducting foreign relations,” Ex parte Peru, 318 U. S. 578, 588 (1943), where it was the only means of forestalling intrusion by the federal judiciary on a delicate area of federal-state relations, Maryland v. Soper, 270 U. S. 9 (1926), where it was necessary to confine a lower court to the terms of an appellate tribunal's mandate, United States v. United States Dist. Court, 334 U. S. 258 (1948), and where a district judge displayed a persistent disregard of the Rules of Civil Procedure promulgated by this Court, La Buy v. Howes Leather Co., 352 U. S. 249 (1957); see McCullough v. Cosgrave, 309 U. S. 634 (1940); Los Angeles Brush Mfg. Corp. v. James, 272 U. S. 701, 706, 707 (1927) (dictum). And the party seeking mandamus has “the burden of showing that its right to issuance of the writ is ‘clear and indisputable.' ” Bankers Life & Cas. Co. v. Holland, 346 U. S. 379, 384 (1953); see United States v. Dwell, 172 U. S. 576, 582 (1899).

We also approach this case with an awareness of additional considerations which flow from the fact that the underlying proceeding is a criminal prosecution. All our jurisprudence is strongly colored by the notion that appellate review should be postponed, except in certain narrowly defined circumstances, until after final judgment has been rendered by the trial court. See, e. g., Judiciary Act of 1789, §§ 21, 22, 25, 1 Stat. 73, 83, 84, 85; Cobbledick v. United States, 309 U. S. 323, 326 (1940); McLish v. Roff, 141 U. S. 661 (1891). This general policy against piecemeal appeals takes on added weight in criminal cases, where the defendant is entitled to a speedy resolution of the charges against him. DiBella v. United States, 369 U. S. 121, 126 (1962). Moreover, “in the federal jurisprudence, at least, appeals by the Government in criminal cases are something unusual, exceptional, not favored,” Carroll v. United States, 354 U. S. 394, 400 (1957), at least in part because they always threaten to offend the policies behind the double-jeopardy prohibition, cf. Fong Foo v. United States, 369 U. S. 141 (1962). Government appeal in the federal courts has thus been limited by Congress to narrow categories of orders terminating the prosecution, see 18 U. S. C. § 3731, and the Criminal Appeals Act is strictly construed against the Government’s right of appeal, Carroll v. United States, 354 U. S. 394, 399-400 (1957). Mandamus, of course, may never be employed as a substitute for appeal in derogation of these clear policies. E. g., Fong Foo v. United States, 369 U. S. 141 (1962); Parr v. United States, 351 U. S. 513, 520-521 (1956); Bank of Columbia v. Sweeny, 1 Pet. 567, 569 (1828). Nor is the case against permitting the writ to be used as a substitute for interlocutory appeal “made less compelling ... by the fact that the Government has no later right to appeal.” DiBella v. United States, 369 U. S. 121, 130 (1962). This is not to say that mandamus may never be used to review procedural orders in criminal cases. It has been invoked successfully where the action of the trial court totally deprived the Government of its right to initiate a prosecution, Ex parte United States, 287 U. S. 241 (1932), and where the court overreached its judicial power to deny the Government the rightful fruits of a valid conviction, Ex parte United States, 242 U. S. 27 (1916). But this Court has never approved the use of the writ to review an interlocutory procedural order in a criminal case which did not have the effect of a dismissal. We need not decide under what circumstances, if any, such a use of mandamus would be appropriate. It is enough to note that we approach the decision in this case with an awareness of the constitutional precepts that a man is entitled to a speedy trial and that he may not be placed twice in jeopardy for the same offense.

In light of these considerations and criteria, neither the record before us nor the cryptic order of the Court of Appeals justifies the invocation of the extraordinary writ in this case.

We do not understand the Government to argue that petitioner was in any sense without “jurisdiction” to order it to file a bill of particulars. Suffice it to note that Rule 7 (f) of the Federal Rules of Criminal Procedure specifically empowers the trial court to “direct the filing of a bill of particulars,” and that federal trial courts have always had very broad discretion in ruling upon requests for such bills, compare Wong Tai v. United States, 273 U. S. 77, 82 (1927). Furthermore, it is not uncommon for the Government to be required to disclose the names of some potential witnesses in a bill of particulars, where this information is necessary or useful in the defendant’s preparation for trial. See, e. g., United States v. White, 370 F. 2d 559 (C. A. 7th Cir. 1966). See also United States v. Debrow, 346 U. S. 374, 378 (1953).

The Government seeks instead to justify the employment of the writ in this instance on the ground that petitioner’s conduct displays a “pattern of manifest noncompliance with the rules governing federal criminal trials.” It argues that the federal rules place settled limitations upon pretrial discovery in criminal cases, and that a trial court may not, in the absence of compelling justification, order the Government to produce a list of its witnesses in advance of trial. It argues further that in only one category of cases, i. e., prosecutions for treason and other capital offenses, is the Government required to turn over to the defense such a list of its witnesses. A general policy of requiring such disclosure without a particularized showing of need would, it is contended, offend the informant’s privilege. Petitioner, according to the Government, adopted “a uniform rule in his courtroom requiring the government in a criminal case to furnish the defense, on motion for a bill of particulars, a list of potential witnesses.” The Government concludes that since petitioner obviously had no power to adopt such a rule, mandamus will lie under this Court’s decision in La Buy v. Howes Leather Co., 352 U. S. 249 (1957), to correct this studied disregard of the limitations placed upon the district courts by the federal rules.

The action of the Court of Appeals cannot, on the record before us, bear the weight of this justification. There is absolutely no foundation in this record for the Government’s assertions concerning petitioner’s practice. The legal proposition that mandamus will lie in appropriate cases to correct willful disobedience of the rules laid down by this Court is not controverted. But the position of the Government rests on two central factual premises: (1) that petitioner in effect ordered it to produce a list of witnesses in advance of trial; and (2) that petitioner took this action pursuant to a deliberately adopted policy in disregard of the rules of criminal procedure. Neither of these premises finds support in the record.

Petitioner repeatedly and, we think, correctly emphasized that request number 25 did not call for a list of government witnesses. He carefully noted that it was utterly immaterial under the terms of request number 25 whether the Government planned to call any of the individuals whose names were sought to the witness stand during the trial. Furthermore, it is clear as a practical matter that the Government’s proof in this case, as in any prosecution of this complex nature, will extend far beyond mere damaging admissions of the defendant, and that witnesses will in all probability be called who have never heard Horwitz make any incriminating statements. Nor, if the list of people who have allegedly heard Hor-witz make damaging admissions is long, is it likely that they will all be called to testify for the Government. Thus while the two categories have a clear probable overlap, they are not co-extensive. And, as petitioner stated in the opinion accompanying his original order to the Government to file a bill of particulars:

“The reason for requiring disclosure of their names ... is not that they will or may be witnesses, but that the defendant requires identification of the times, places and persons present in order to prepare his defense.”

Indeed, petitioner excused the Government from answering request number 29 (a), which was so broad as to constitute in effect a demand for a list of prosecution witnesses. Finally, it should be noted that in the opinion accompanying the original order, petitioner averred his willingness to narrow the order of disclosure upon a showing by the Government “that such disclosure will involve physical risk to the individuals or prejudice the government in its ability to produce its evidence.” He repeated this offer numerous times in the subsequent hearings on the Government’s objections to the bill, but the United States Attorney never suggested that such a showing could be made in this case.

The record is equally devoid of support for the notion that petitioner had adopted a deliberate policy in open defiance of the federal rules in matters of pretrial criminal discovery. The extended colloquy between petitioner and government counsel reveals at most that petitioner took a generally liberal view of the discovery rights of criminal defendants. But petitioner was careful never to divorce his ruling from his view of the legitimate needs of the defendant in the case before him, and there is no indication that he considered the case to be governed by a uniform and inflexible rule of disclosure. Thus the most that can be claimed on this record is that petitioner may have erred in ruling on matters within his jurisdiction. See Parr v. United States, 351 U. S. 513, 520 (1956). But “[t]he extraordinary writs do not reach to such cases; they may not be used to thwart the congressional policy against piecemeal appeals.” Id., at 520-521. Mandamus, it must be remembered, does not “run the gauntlet of reversible errors.” Bankers Life & Cas. Co. v. Holland, 346 U. S. 379, 382 (1953). Its office is not to “control the decision of the trial court,” but rather merely to confine the lower court to the sphere of its discretionary power. Id., at 383. Thus the record before us simply fails to demonstrate the necessity for the drastic remedy employed by the Court of Appeals.

Even more important in our view, however, than these deficiencies in the record is the failure of the Court of Appeals to attempt to supply any reasoned justification of its action. Had the Government in fact shown that petitioner adopted a policy in deliberate disregard of the criminal discovery rules and that this policy had proved seriously disruptive of the efficient administration of criminal justice in the Northern District of Illinois, it would have raised serious questions under this Court’s decision in La Buy v. Howes Leather Co., 352 U. S. 249 (1957) , In La Buy, however, we specifically relied upon evidence in the record which showed a pattern of improper references of cases to special masters by the District Judge. 352 U. S., at 258. There is no evidence in this record concerning petitioner’s practice in other cases, aside from his own remark that the Government was generally dissatisfied with it, and his statements do not reveal any intent to evade or disregard the rules. We do not know what he ordered the Government to reveal under what circumstances in other cases. This state of the record renders the silence of the Court of Appeals all the more critical. We recognized in La Buy that the familiarity of a court of appeals with the practice of the individual district courts within its circuit was relevant to an assessment of the need for mandamus as a corrective measure. See 352 U. S., at 258. But without an opinion from the Court of Appeals we do not know what role, if any, this factor played in the decision below. In fact, we are in the dark with respect to the position of the Court of Appeals on all the issues crucial to an informed exercise of our power of review. We do not know: (1) what the Court of Appeals found petitioner to have done; (2) what it objected to in petitioner’s course of conduct — whether it was the order in this particular case or some general practice adopted by petitioner in this and other cases; (3) what it thought was the proper scope of a bill of particulars under Rule 7 (f) and what limitations it thought the criminal rules placed •upon the particular or generalized discretion of a district court to order the Government to file such a bill; or (4) what relevance, if any, it attached to the fact that this order was entered in a criminal case, in assessing the availability of mandamus. We cannot properly identify the questions for decision in the case before us without illumination of this unclear record by the measured and exposed reflection of the Court of Appeals.

Due regard, not merely for the reviewing functions of this Court, but for the “drastic and extraordinary” nature of the mandamus remedy, Ex parte Fahey, 332 U. S. 258, 259 (1947), and for the extremely awkward position in which it places the District Judge, id., at 260, demands that a court issuing the writ give a reasoned exposition of the basis for its action.

Mandamus is not a punitive remedy. The entire thrust of the Government's justification for mandamus in this case, moreover, is that the writ serves a vital corrective and didactic function. While these aims lay at the core of this Court’s decisions in La Buy and Schlagenhauf v. Holder, 379 U. S. 104 (1964), we fail to see how they can be served here without findings of fact by the issuing court and some statement of the court’s legal reasoning. A mandamus from the blue without rationale is tantamount to an abdication of the very expository and supervisory functions of an appellate court upon which the Government rests its attempt to justify the action below.

The peremptory common-law writs are among the most potent weapons in the-judicial arsenal. “As extraordinary remedies, they are reserved for really extraordinary causes.” Ex parte Fahey, 332 U. S. 258, 260 (1947). There is nothing in the record here to demonstrate that this case falls into that category, and thus the judgment below cannot stand. What might be the proper decision upon a more complete record, supplemented by the findings and conclusions of the Court of Appeals, we cannot and do not say. Hence the writ is vacated and the cause is remanded to the Court of Appeals for the Seventh Circuit for further proceedings not inconsistent with this opinion. is s0 ordered.

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

Mr. Justice Black,

concurring.

I concur in the Court’s judgment to vacate and agree substantially with its opinion, but would like to add a few words, which I do not understand to be in conflict with what the Court says, concerning the writ of mandamus. I agree that mandamus is an extraordinary remedy which should not be issued except in extraordinary circumstances. And I also realize that sometimes the granting of mandamus may bring about the review of a case as would an appeal. Yet this does not deprive a court of its power to issue the writ. Where there are extraordinary circumstances, mandamus may be used to review an interlocutory order which is by no means “final” and thus appealable under federal statutes. Finality, then, while relevant to the right of appeal, is not determinative of the question when to issue mandamus. Rather than hinging on this abstruse and infinitely uncertain term, the issuance of’ the writ of mandamus is proper where a court finds exceptional circumstances to support such an order. In the present case it is conceivable that there are valid reasons why the Government should not be forced to turn over the requested names and that compliance with the order would inflict irreparable damage on its conduct of the case. The trouble here, as I see it, is that neither of the courts below gave proper consideration to the possible existence of exceptional facts which might justify the Government’s refusal to disclose the names. Having no doubt as to the appropriateness of mandamus, if the circumstances exist to justify it, I would vacate the judgment below and remand the case to the Court of Appeals for further deliberation on whether there are special circumstances calling for the issuance of mandamus.

       Request number 25 originally read:
      “25. If [the Government relies upon any oral statements of the defendant], state with respect to each such statement, if there was more than one:
      “a. The name and address of the person to whom the statement was made;
      “b. The date on which the statement was made;
      “c. The place where it was made;
      “d. The substance of the statement;
      “e. Whether the person to whom the statement was made was a Government Agent at the time of the statement;
      “f. The names and addresses of any other persons present at the time the statement was made; and
      “g. Whether a written memorandum or verbatim transcript of the oral statement was made, and, if. so, whether the Government has possession of the memorandum or transcript.”
      The Government objected, inter alia, to compliance with part “d” on work-product grounds. At first petitioner sustained this objection and struck part “d” altogether; however, he later ordered the Government to reveal the substance of statements made to government agents, but not of those made to private parties.

       The order of the Court of Appeals denying the writ read, in its entirety:
      “This is a petition by the government for writ of mandamus to compel respondent, a district court judge, to vacate his order which effectually directs the government in a criminal cause to give the defendant names and addresses of persons to whom defendant in said cause made oral statements to support the charges in the indictments. Briefs have been filed in this court by both parties. The court has considered the briefs and is fully informed of the points made and the positions of the parties with respect to the issue, and
      “The court finds that the order subject of the petition is not an appealable order, and a review of it would offend the policy against piecemeal appeals in criminal cases, Cobbledick v. United States, 309 U. S. 323; that mandamus may not be used as a means of reviewing the non-appealable order, Boche v. Evaporated Milk Association, 319 U. S. 21; that federal courts use mandamus for the traditional purpose of confining a district court to a lawful exercise of its jurisdiction or to compel it to exercise its proper jurisdiction, Roche v. Evaporated Milk Association; that the district judge’s order upon the government to furnish names and addresses of witnesses to a defendant may be erroneous, a question we do not decide, but the ruling itself was within the court’s jurisdiction, Roche v. Evaporated Milk Association; that the ruling can be reviewed on appeal from a final judgment; and that there is no question here that the district judge refused to exercise his proper jurisdiction.
      “It Is Therefore Ordered that the petition for writ of mandamus be and it is hereby denied.”

       The original order denying the writ was entered on July 12, 1966. On August 16, 1966, the court granted the Government’s petition for reconsideration, remarking only that:
      “The court finds that in the circumstances of this particular case the court should consider the merits of the ruling of the district court challenged by the government, rather than to remit the government to a radical alternative appealable judgment available to the trial judge upon the government’s persistent refusal to comply;
      “It is therefore ordered that the order of this court of July 12, 1966, be and it is hereby vacated, and the cause is taken by the court upon the petition for the writ, the briefs of both parties and the record.”
      Subsequently, on October 4, 1966, the Court of Appeals granted the writ. Its entire order reads as follows:
      “This cause came on to be heard upon the Government’s petition for writ of mandamus ordering respondent to vacate his order directing the Government to answer question 25 in defendant’s motion for bill of particulars, which question sought, among other things, the names and addresses of persons to whom defendant made oral statements supporting the indictment charging wilful evasion of income tax, and which statements the Government would rely upon at the trial; upon the rule issued upon respondent to show cause why the writ should not issue; upon the brief of respondent answering the rule, and the brief of the Government; and upon the record.
      “And the Court having on August 16, 1966 vacated its July 12, 1966 order denying the writ, and having reconsidered the question,
      “It Is Ordered that a writ of mandamus issue as prayed in the Government’s petition directing respondent to vacate his order directing the Government to answer question 25 in defendant’s motion for bill of particulars.”

       It is likewise unnecessary for us to reach the question whether the writ in the circumstances of this case may be said to issue in aid of an exercise of the Court of Appeals’ appellate jurisdiction. See 28 U. S. C. § 1651; Roche v. Evaporated Milk Assn., 319 U. S. 21, 25 (1943). Compare In re United States, 348 F. 2d 624 (C. A. 1st Cir. 1965), with United States v. Bondy, 171 F. 2d 642 (C. A. 2d Cir. 1948). In our view, even assuming that the possible future appeal in this case would support the Court of Appeals’ mandamus jurisdiction, it was an abuse of discretion for the court to act as it did in the circumstances of this case.

       Thus it is irrelevant, and we do not decide, whether the Government could appeal in the event petitioner dismissed the Horwitz indictments because of its refusal to comply with his bill of particulars order. Both parties agree that it is highly doubtful that it could appeal. See United States v. Apex Distrib. Co., 270 F. 2d 747 (C. A. 9th Cir. 1959). The Government argues that it is unseemly to force it to defy the court in order to seek review of its order, and doubly so because it may secure review with certainty only if the United States Attorney is cited for contempt, compare Bowman Dairy Co. v. United States, 341 U. S. 214 (1951), in view of the doubtful status of its right to appeal a dismissal. But this misses the mark. Congress clearly contemplated when it placed drastic limits upon the Government’s right of review in criminal cases that it would be completely unable to secure review of some orders having a substantial effect on its ability to secure criminal convictions. This Court cannot and will not grant the Government a right of review which Congress has chosen to withhold. Carroll v. United States, 354 U. S. 394, 407-408 (1957). We may assume for purposes of this decision that there may be no other way for the Government to seek review of individual orders directing it to file bills of particulars.

       Nor do we understand the Government to argue that a judge has no “power” to enter an erroneous order. Acceptance of this semantic fallacy would undermine the settled limitations upon the power of an appellate court to review interlocutory orders. Neither “jurisdiction” nor “power” can be said to “run the gauntlet of reversible errors.” Bankers Life & Cas. Co. v. Holland, 346 U. S. 379, 382 (1953). Courts faced with petitions for the peremptory writs must be careful lest they suffer themselves to be misled by labels such as “abuse of discretion” and “want of power” into interlocutory review of nonappealable orders on the mere ground that they may be erroneous. “Certainly Congress knew that some interlocutory orders might be erroneous when it chose to make them non-reviewable.” De Beers Consol. Mines, Ltd. v. United States, 325 U. S. 212, 223, 225 (1945) (dissenting opinion of Mr. Justice Douglas).

       It should be noted that Rule 7 (f) was amended, effective July 1, 1966, to eliminate the requirement that a defendant seeking a bill of particulars make a showing of “cause.” The Government argues that this amendment was not designed “to transform the bill of particulars into an instrument of broad discovery.” Brief for United States, p. 15, n. 5. We intimate no view regarding the construction of the amendment. Petitioner’s order was entered before the amendment was promulgated. The impact of the amendment on the present proceeding will, of course, be a question open upon remand.

       Brief for United States, p. 24.

       Brief for United States, p. 11.

       We note in passing that La Buy and the other decisions of this Court approving the use of mandamus as a means of policing compliance with the procedural rules were civil cases. See Schlagenhauf v. Holder, 379 U. S. 104 (1964); McCullough v. Cosgrave, 309 U. S. 634 (1940); Los Angeles Brush Mfg. Corp. v. James, 272 U. S. 701, 706, 707 (1927) (dictum). We have pointed out that the fact this case involves a criminal prosecution has contextual relevance. See supra, at 96-98. In view of our reading of the record, however, we need not venture an abstract pronouncement on the question whether this fact imposes a more stringent standard for the invocation of mandamus by the Government where the allegation is that a district judge has deviated from the federal rules.

       Petitioner at one point stated to government counsel:
      “I told you that any time you made a representation with any foundation in support of it that the disclosure of the name of an individual would either jeopardize him physically or jeopardize the government’s proof in the case and that his testimony might be altered or effort might be made to persuade him not to testify, or something else, I am prepared to say under those circumstances of that showing we don’t risk people’s lives or their security, their physical well-being, and we don’t encourage any possible circumstances in which testimony can be suppressed. That is consistent, it seems to me, with my general philosophy that you shouldn’t be suppressing things; and if there is a threat of suppression then I will take the lesser suppression to prevent the greater.”
      Earlier, after government counsel suggested that the danger of fabricated defenses justified a policy against the disclosure of the names of potential government witnesses, petitioner replied:
      “Now any evidence of a fabrication, believe me, we will deal with it. The laws of perjury — we have had convictions for perjury here, and we will have them again, I have no doubt, arising out of criminal cases, but I am not prepared to say to a defendant that you may not have the information which it seems to me you reasonably require to prepare your defense because I am afraid you or somebody helping you will lie and we won’t be able to do anything about it.”
      Upon further inquiry, the United States Attorney made no suggestion that there was a particular danger that disclosure of the names sought by request number 25 would result in subornation of perjury.

       Petitioner remarked at one stage:
      “You know, I have great concern that in a civil case we require both sides to submit their witnesses to maximum deposition when all that is involved is money. In a criminal case, the government doesn’t even want to disclose the name of a person so the other side can go out and interview him when what is concerned is life or liberty. To me this is a very strange aberration of the processes of justice as between civil and criminal cases. When all that is involved is money, we say put your cards on the table. Where life and liberty are involved, we say to the prosecution you don’t have to tell him a thing.”
      The Government seeks to make much of an exchange in which petitioner remarked that he would “go further” than what the United States Attorney referred to as "the proposed new rules of discovery under the criminal rules by the American Bar Association.” The reference, according to the Government, is to the amendments to the Federal Rules of Criminal Procedure, which were pending in this Court at the time, and the exchange reveals petitioner’s determination to require broad criminal discovery despite the limitations of the rules. We cannot accept this argument. In the first place, the colloquy clearly reveals that petitioner considered the proposed rules irrelevant to the question before him. In the second place, petitioner made it plain that he thought his position could in any event be rested on a reading of the proposed rules:
      “The Court: ... I would go further than they go, but they certainly go a lot further than you- — a lot further.
      “Mr. Schultz [United States Attorney]: They would not require the answers to these questions.
      “The Court: I don’t agree with that. They would not require the giving of a list of witnesses, and I don’t conceive that I am ... .”

         After his initial ruling that the defendant was entitled to the information sought by request number 25 because he needed it to prepare his defense adequately, petitioner continually asserted a willingness to consider any factors peculiar to the ease which militated against disclosure of this information and to narrow his order in light of any such considerations. See n. 11, supra. Moreover, on several occasions it was petitioner who sought to narrow the focus of the discussion to the particular instance by insisting that the United States Attorney relate his generalized policy objections to the facts of the particular case:
      “Mr. Schultz: We are not only talking about this very case, your Honor.
      “The Court: Well, I am talking about this case. That is what I am ruling on. That is what I ruled on last week or earlier this week. That is what you are asking me to reconsider, to vacate.”
      And again:
      “Why shouldn’t they have an opportunity to interview the witnesses? Why should they put them on cold at the time, or why should I have to recess then while they go and interview the witnesses to see what their testimony would be?
      “I don’t understand it, Mr. Schultz. I just don’t understand in this situation — I can understand a lot of situations, but in this situation. We are not talking about some other case, but in this case, this ease in which you say that there were incriminating admissions made.”

       The Government also places reliance on Schlagenhauf v. Holder, 379 U. S. 104 (1964), arguing that it “reaffirmed” La Buy. Insofar as it did so, the case does not help the Government here, since we have no quarrel with La Buy, which is simply inapposite where there is no showing of a persistent disregard of the federal rules. And it cannot be contended that Schlagenhauf on its facts supports an invocation of mandamus in this case. The Court there did note that the various questions concerning the construction of Rule 35 were new and substantial, but it rested the existence of mandamus jurisdiction squarely on the fact that there was real doubt whether the District Court had any power at all to order a defendant to submit to a physical examination.

       Petitioner stated that
      “it is no secret that the government is disturbed that I am making available to defendants the identity of people who are alleged to have been present when transactions took place, which the government contends are illegal. . . .
      “. . . I have never required them to disclose their evidence, but I have required them to identify the people with whom the defendant is supposed to have participated in an illegal act but who were present.”
      We note merely that petitioner was careful to distinguish his practice from requiring the Government to produce its evidence or a list of witnesses. _ In any event, petitioner’s passing remarks concerning a running dispute with the Government are insufficient to support an invocation of La Buy, absent some evidence concerning petitioner’s actions in other cases, or at the very least some illumination of this dialogue flowing from the Court of Appeals’ experience with petitioner’s general practice and its reading of Rule 7 (f).

       Another puzzling aspect of the action of the Court of Appeals is what it did not do. Requests 7, 14, 19, 21, 23, 25, 27, and 29 called for the disclosure of the names of persons who might conceivably be called as witnesses by the Government at Horwitz' trial. The Government objected to being required to answer requests 7, 14, 25, and 29. Ultimately petitioner excused the Government from answering request number 29, which was very broadly cast and did in effect call for a list of all potential witnesses. The Government for its part answered all the remaining requests, except number 25. The mandamus petition only placed the latter in issue, but nothing in the record indicates why either the Government or the Court of Appeals might have thought that it was within petitioner’s judicial discretion under Rule 7 (f) to order the disclosure of the names sought by the other requests, but not the revelation of those sought by request number 25.