UNITED STATES v. LUCCHESE
Legal provision: Federal Rules of Civil Procedure, including Appellate Procedure (or relevant rules of a circuit court)
Argument of Wayne G. Barnett
Chief Justice Earl Warren: Number 57, United States, Petitioner versus Gaetano Lucchese, et cetera.
Mr. Wayne G. Barnett: Mr. Chief Justice, may it please the Court.
This is actually two cases and they are consolidated for argument.
The Lucchese case is here on writ of certiorari, but also the Costello case Number 59 is being argued with Lucchese on one question that that question that was raised by the motion for leave to amend the petition in Costello.
In the 1955 term, this Court held in United States v. Zucca that a denaturalization proceeding could not be maintained without filing in Court the affidavit of good cause required by Section 340 (a) of the Immigration Act.
These cases arise from the Government's attempt to comply with those requirements.
In both of these cases as in Zucca, the affidavit of good cause was not filed with the original complaint.
After the Zucca decision however, the Government did file affidavits in attempt to cure the original defect.
The Second Circuit in both cases held that that late filing was adequate.
This Court, however, granted certiorari and in per curiam orders, reversed the judgments and remanded the cases with directions to dismiss the complaints saying and the order appears in new Lucchese at page 29 an affidavit showing good cause as a prerequisite to the initiation of the denaturalization proceedings.
The affidavit must be filed with the complaint when the proceedings are instituted.
On remand of the -- of these two cases to the District Courts, Lucchese to the Eastern District of New York and Costello to the Southern District, the Government submitted proposed judgments dismissing the complaints without prejudice.
The District Courts in each case, however, felt that they were bound by this Court's mandate simply to dismiss without specifying the effect of the dismissal orders and the order in Lucchese is in the record at page 30 and 31.
The dismissal order in Costello is not printed in the record, but we are -- by stipulation filed copies which I believe were distributed to the Court.
As the Court will see there substantially identical and simply reciting the prior proceedings and judging that the complaints be dismissed.
Now up to that point, the two cases are identical for all material purposes and it's only after that point that they're filed separate.
In Costello, the Government did not appeal from the dismissal order, but rather simply filed the new complaint with the required affidavit.
It was met, however with the claim by Costello that since the dismissal order of the prior action did not specify that it was without prejudice, it operated by force of Rule 41 (b) as a dismissal with prejudice and barred the new action.
Both the District Court and the Court of Appeals rejected that argument and it's that question that Costello seeks to raise by the motion to amend the petition.
This Court granted the main petition in the Costello which raises other questions which are being argued separately, did not act on the motion to leave to amend the petition and set that motion down for argument together with Lucchese.
Now, in the meantime, because of the res judicata argument being made in the Costello, the Government sought to protect itself in Lucchese by appealing in the original proceedings themselves from the refusal of the District Court to act without prejudice to a dismissal order.
The Court of Appeals dismissed that appeal on the ground that the District Court had no power on remand to do anything more than dismiss as this Court had said without embellishment or elaboration.
The Court granted certiorari on the Government's petition and as I say, consolidated that with the Costello motion.
Justice Potter Stewart: Mr. Barnett, it's a little complicated procedure to follow.
The basic issue is simply not I expected sure enough.
What was the chronology in the Court of Appeals for the Second Circuit?
Did the Costello appeal get there ahead of the Lucchese appeal?
Mr. Wayne G. Barnett: No.
The Lucchese appeal was -- I'm not sure when they were filed.
The Lucchese appeal was decided before the Costello.
Justice Potter Stewart: Before?
Mr. Wayne G. Barnett: Yes and we had filed our petition before Costello petition was due here for that reason.
And actually, we filed our -- our petition was primarily a protective one just in case the Court took the question in Costello so we would be protected in Lucchese.
I would like to clarify my position on the motion to amend in the Costello.
Now, when that was filed we opposed it for among other reasons, the fact that there was no good cause but failing to raise issue in the original petition and the Court ought not encourage peace bill petitions, but now that the Court has granted Lucchese, they said in there, the Costello motion is somewhat different.
The questions are obviously closely related and if the Court is going to hear and determine Lucchese on the merits, we don't see how we can continue to oppose hearing also the question in the Costello.
So unless the Court concludes that it should dismiss Lucchese also, we don't oppose the motion to amend.
Turning the merits, I'll deal first of the Costello case and the question there posed the effect of the dismissal order on later proceedings, because I think that's the basic question.
His argument, as I say is that, since the order did not specify, there was without prejudice that operated under Rule 41 (b) as a dismissal with prejudice.
The Court of Appeals said that argument is based entirely on pure technicality since judgment (Inaudible), because one thing that is clear is that no Court that has ever been involved in these proceedings intended or contemplated that result.
In the prior proceedings from the Zucca case itself, the Court affirmed the judgment dismissing the complaint without prejudice to new proceedings.
When these cases were here before, they were here with four -- with two other cases, a total of four cases.
In the Lucchese case and in the Costello -- well, in the Lucchese case and the Diamond case from the Ninth Circuit, the District Courts had dismissed without prejudice because of the lack of the affidavit and in the Costello case, the District Court had dismissed without prejudice though for other reasons.
In the fourth case that came up, the Mattels case the District Court had refused to dismiss at all.
Now, in the Second Circuit to which three other cases went and the major opinion was written in Mattels, the Court stated the question to be whether the late filing of the affidavit was sufficient or whether the Government was required to institute a new proceeding with a new service or process.
That was the question and this Court, when it took the case and simply stated that the complaint had to be filed with the -- the affidavit had to be filed with the complaint and directed the District Court to dismiss, decided nothing more than that.
I think that is clear.
So, the main problem is how we can avoid that unintended result of how the Rule 41 (b) can be fairly construed not to produce that result.
The Rule, it's quoted in our Costello brief at page 5, the last sentence, by the way when I speak of Rule 41 (b), I'm referring only to the last sentence which is the only part involved here, with pertinent substance that unless the Court otherwise specifies in the order a dismissal other than dismissal for lack of jurisdiction or venue shall operate as an adjudication on the merits.
Now there are two ways to approach the interpretation of the rule One, adopted by the District Court is to say that the dismissal here was for lack of jurisdiction.
That by the way is the characterization of the dismissal that was adopted I think by all of the defendants in the prior proceedings when they moved to dismiss.
They filed their motions to dismiss under Rule 12 (b) as motion to dismiss for lack of jurisdiction.
Now the jurisdiction of course means different things for different purposes and I think the question really is how should be construed for purposes of this rule and that turns on what purposes of the rule are and the basic purpose I think is evident.
The rules give to the Court a discretionary power in a number of instances to specify the effect of the dismissal, to make it with prejudice or without prejudice.
That is true of dismissals for one of prosecution for failure to state a claim, for failure to comply with an order and for insufficiency of proof by the plaintiff.
Now, having the discretion to make the dismissal either way, you needed a presumption to control the case where the Court failed to say which way he was exercising his power and that's what Rule 41 (b) does.
It says that unless it is otherwise specified, he shall be deemed to exercise the power to dismiss with prejudice and that I think is not -- is not too great of a burden on the plaintiff because he knows in that kind of situation that the dismissal maybe one way or the other.
He can see to it specifies but it's intended.
Justice Charles E. Whittaker: That's all (Inaudible) in the dismissal of silence is a dismissal of this prejudice?
The Rule exempted that other than a dismissal (Inaudible)
Mr. Wayne G. Barnett: Yes sir.
No I'm sorry.
I didn't make that clear.
That is one of the exemptions and the District Court held that we are within that exemption and that is really what I'm arguing.
Justice Charles E. Whittaker: But that is not what the judgment says.
If it it's not revived, the dismissal would direct you to one jurisdiction, the dismissals are not in place.
Mr. Wayne G. Barnett: That is right.
And our argument is that it was for lack of jurisdiction as that term is used in this Rule.
Now we acknowledge that it is not a jurisdictional defect for all purposes.
It's certainly we would say does not subject a final judgment to collateral attack for lack of that requirement.
But -- excuse me, you have to give jurisdictions used in this Rule quite a -- a broad scope to include what might be called quasi jurisdictional defects because I -- I can suggest the scope of dismissals where I think the rule would be -- produce the result that was certainly not intended otherwise.
We -- the problem isn't limited to this particular dismissal here.
There are a variety of dismissals which no one I think has ever thought would bar later proceedings, nothing in the rules purports to give the judge power to make them with prejudice and which can be accepted only if you put them under the heading of jurisdiction.
For example, a dismissal of a tax refund suit for failure to file an administrative claim for refund, a dismissal for failure to exhaust the administrative remedies, a dismissal of a National Labor Relations Board application for an injunction against the temporary boycott -- a secondary boycott for failure to make a preliminary investigation, dismissals for lack of an indispensable party, for lack of the real party interest.
If all of these kinds of standard or specialized grounds for dismissal rising out statutory preconditions to sue, which I do not think were ever intended to the grounds for dismissals with the prejudice and we would say that all of these ought to be characterized for this particular purpose as dismissals for lack of jurisdiction.
What they have in common is that they -- as fair as I precondition to suit and it stops the litigation, a threshold is never an opportunity to litigate the merits and for -- for purposes of res judicata, they are exactly like any other dismissal for lack of jurisdiction.
Now there's a -- a second approach which was adopted by Judge McGruder in his opinion for the Court of Appeals.
And I think it can be best phrased as turning on a construction of the beginning words unless the Court in a dismissal order otherwise specifies.
Now Costello says that -- argues that an order otherwise specifies only if it uses the magic words without prejudice, but we think that -- in light of the purpose to rule, there's no reason so limit it.
As I've said, the main purpose is to remove the ambiguity in cases where it is not clear whether the dismissal is on the merits or whether the District Court has exercised a discretionary power to impose a dismissal with prejudice as a sanction for some dilatory tactic or -- or for castrating in part.
Now, if that is the purpose of the Rule, it seems to me that an order specifies otherwise even if it does not say without prejudice, so long as it makes clear by any form of words that there has been no determination on the merits and that the District Court is not proportioned to exercise a discretionary power to impose a dismissal having the same effect as one of the merits.
Now, that is precisely, I think, what the order in Costello shows.
It clearly shows that -- as Judge McGruder said, that there's been no -- no determination on the merits and that the District Court did not exercise whatever discretionary power he may have had if he had any to make it with prejudice.
And we think such an order is one otherwise specified.
And, I think that is fully in accordance with everything that this Court has this far intended in these cases.
I'd like to turn briefly to the Lucchese case, which actually the result will turn primarily upon the result in Costello.
If a Court accepts our view in Costello that the original order was not barred with the second suit and for all practical purposes, that -- that moots the question in Lucchese because we were aggrieved by the failure to say without prejudice only because of the doubt of what the effects of the order would be otherwise and if this Court settles the doubt, there's no longer a practically important issue in Lucchese.
On the other hand, if the Court disagrees who doesn't hope there is a bar, then I think it's clear from what I've already said that the District Court erred in Lucchese in not adding the words without prejudice.
So I think the only separate question arising in the Lucchese is the procedural one raised by Lucchese, namely, whether the Government by appealing followed the wrong the procedure to correct the error.
Lucchese's argument is -- is that the Court of Appeals has no jurisdiction.
It just simply does not have power to decide questions of compliance with this Court's mandates and he argues that this is that kind of question.
Now, even accepting the premise, I think the short answer is that this is not a question of compliance with this Court's mandate.
It is clear that the Court in directing -- remanding case with direction to dismiss did not purport to pass on the question of the nature of the dismissal and that it should with or without prejudice and it was therefore in matter not within the scope of the mandate and a new issue which the Court of Appeals is free to review.
And that's really all the Court has to decide in the case.
But I would like to say that we, by no means, agree with the premise of Lucchese is that there are any limits on what the Court of Appeals can do in reviewing actions by a District Court, simply because it involves among other things or solely a question of interpretation of a mandate of this Court.
The -- there are -- there are Court of Appeals' decisions supporting that.
We think that they are the product simply of a historical oversight and I will only very briefly suggest what that is because I suggest that the Court needs to reach it.
The -- in cases prior to 1891 in this Court, the Court established that questions of compliance with these mandates could be reviewed by it either on mandamus or by appeal.
Now, of course before 1891 there were no Courts of Appeals and so it was perfectly clear that any appeal lay only to the Supreme Court.
Now, it would seem to have followed that when the Courts of Appeals were created in 1891 and since the questions could be reviewed by ordinary Courts of Appeal that you could appeal the Court of Appeals from a final judgment.
But the -- in later cases, this Court did not carefully make that distinction and continued to repeat the old language.
In fact however, all the cases held were that the remedy of mandamus to enforce a mandate had to be sought in the Supreme Court and not in the Court of Appeals and although as I say that the -- some Courts of Appeals have said they have no jurisdiction of appeal, we think that there's no valid reason whatsoever for that.
It simply confuses the processes of review.
Lucchese says that if it raises a new issue, we must go to the Court of Appeals, but if it raises something within the scope of the mandate we must somehow come to this Court and -- but the question of whether or not the matter is foreclosed by the original mandate, is usually the very question.
And so, you have to decide the merits before you decide jurisdiction and I think it would only produce unnecessary protective applications to this Court.
Justice Potter Stewart: What did the Court of Appeals for the Sixth Circuit do with the Ringhiser case?
Mr. Wayne G. Barnett: I'm not sure.
Justice Potter Stewart: I got the right the name -- the right name of the Act, (Inaudible) in that case in which there was some confusion or uncertainty as to what the mandate was that this Court meant?
Mr. Wayne G. Barnett: I'm not -- I'm not sure I recall that case.
The -- as I say I agree there are some Court of Appeals cases and I think that is one of them declining to review questions of compliance.
Our only point really is that historically there was no basis for that limitation on their jurisdiction and we don't understand what the obstacle is to their reviewing all questions of compliance with mandate.
I would like, if I may, to reserve the rest of my time.
Argument of Richard J. Burke
Mr. Richard J. Burke: May it please the Court.
I'm speaking on behalf of the respondent Lucchese and I agree with the Solicitor that if the Costello case is decided adversely to Costello, then the question involved in the Lucchese case becomes entirely academic because the question involved in the Lucchese case has only to do ultimately with whether the District Court obeyed this Court's mandates or not when it entered its order of dismissal.
I would like to initially answer Justice Stewart's question about the Ringhiser case in the Sixth Circuit because that has to do with the first point that I want to discuss and there the District Court purporting to obey a Supreme Court mandate had entered an order unsatisfactory to one of the parties and the party appealed to the Court of Appeals and the Court of Appeals dismissed the appeal stating specifically that the Court of Appeals had no jurisdiction of the question whether a District Court has or has not complied with the Supreme Court mandate and that is entirely a question for this Court to determine and a party complaining that the District Court is not complying with this Court's mandate must come to this Court.
And the basis and authority for that proposition is not only in Court of Appeals cases but in this Court and I have cited the case in my brief.
It's in 207 United States.
It had to do where the case where a Circuit Court of appeals had assumed the power to determine whether a District Court was complying or not with the mandate and this Court there stated and I've quoted the language in my brief "The Circuit Court of Appeals had no jurisdiction of the matter."
So, words couldn't be clearer it seems to me and therefore when the Government --
Justice Hugo L. Black: What page is that?
Mr. Richard J. Burke: That case is entitled Ex parte First National Bank of Chicago Your Honor.
I have cited that at page 5 of my brief.
Justice William O. Douglas: You -- you maintain that the only remedy of the Government was not by appeal to the Court of Appeals, but by motion in this Court?
Mr. Richard J. Burke: Correct, exactly.
Justice Charles E. Whittaker: Well then, what was with the District Court passing the jurisdiction to pass this (Inaudible) from the question.
Mr. Richard J. Burke: I say no, Your Honor that the District Court had no jurisdiction to pass judgment.
The District Court was acting in a ministerial capacity the cases say, in entering an order in compliance with this Court to mandate and had nothing to do but follow what this Court directed it to do.
Justice Charles E. Whittaker: And it was not from (Inaudible) what would it do?
Mr. Richard J. Burke: It would have to use its best the judgment as to whether it were -- whether it was obeying what this Court had directed to be done.
That's what both these District Courts did in this case and in the Costello case.
Since this Court's judgment said nothing about the dismissal being without prejudice to a Government's right to bring a new action thereafter, but simply said it is remanded with directions to dismiss.
Both District Courts felt that they should follow the unambiguous direction of this Court and enter an order dismissing this what the effect of such an order would be if it's not necessary for the Court to determine, but both Courts felt to add to what this Court had directed the words without prejudice to the Government's right to start a new action would be to vary the judgment that this Court had entered.
Justice Felix Frankfurter: Let me ask you this Burke, do you think a distinction of the cases you have cite like this, you say that the ministerial duties of the Court -- the District Court involves that.
Is that right?
Mr. Richard J. Burke: Yes.
Justice Felix Frankfurter: That would be suppose that there is no discretion as (Inaudible) if it's clear as day.
If that is so, if it has failed to exercise its ministerial duties, they're not (Inaudible) the Court of Appeals of proper court to resort (Inaudible).
If there is doubt with real ambiguity as to what the judgment of this Court talks about.
And therefore it is not reducible to a ministerial act then I should think the proper place to come to it here as this Court, and ask what does your mandate mean?
Is that distinction -- is there any validity to that distinction as it's been taken?
Mr. Richard J. Burke: Well, that particular distinction has not been taken to my knowledge, Justice Frankfurter.
The distinction has been taken, but if a completely new issue is raised before the District Court which doesn't involve the question of compliance with this Court's judgment but then that can be reviewed by the Court of Appeals, but that I feel is not involved here and so did the Court of Appeals.
Justice Felix Frankfurter: Really not, really not.
That is not -- it isn't new method.
Mr. Richard J. Burke: That's right.
Justice Felix Frankfurter: There is something that this Court has left open and it isn't a question of construing -- unless that be an issue, unless it is a question whether it was left open and I should think the proper thing to do it to come in and to put the matter to this Court.
Mr. Richard J. Burke: Well in its briefs, the Government here has taken both positions I'd say inconsistently but it's argued both ways.
It has said primarily that it was implied in this Court's judgment that the dismissal should be without prejudice to a further proceeding.
And then it has said conversely that if it was not implied, then it was a brand new matter and the District Court could take it up as a new manner without feeling that it was under any control, one way or another in this Court automatically.
Justice Felix Frankfurter: I should think of that amount where there's space that I wrote almost one of my very rare (Inaudible) which involved this discretion, namely, as to what was left open whether it was a new matter and that's a very different and if that in controversy, then I should think you have to come in, you have to come here and ask the Court what does your mandate means?
I think you need to be (Inaudible)
Mr. Richard J. Burke: I think that --
Justice Felix Frankfurter: But it was so clear that there's no dispute if it is merely -- it's – if it is contented by the Government that Zucca established one loosely might be called a jurisdictional requirement namely necessary precondition to a suit and therefore it couldn't be that we -- when we send the case down that you can't begin this relief so you now can qualify -- can qualify within the requirements that constitutes the suit.
But it's strictly a territory, I must say whether it's so clear that it's become ministerial or whether the petition question that you must ask a court that made to do (Inaudible) that is what it's meant.
Mr. Richard J. Burke: Well, oddly enough the Government maintains that it was so clearer that the District Court should have added these words whereas I maintain and the District Court, both District Courts in both cases and also the Court of Appeals in the Second Circuit felt that it was just as clear the other way that they had no business to add any such words to what is in directive to this Court.
Justice Felix Frankfurter: Well, as I understand the per curiam of the Court of Appeals, they simply said that if the District Court uses the words that this Court has been using, it is obeying the mandate, isn't that right?
Mr. Richard J. Burke: That's right.
In the -- in the Lucchese case, they said that one doesn't reach the question of the effect of the order.
They simply --
Justice Felix Frankfurter: That's for another day.
Mr. Richard J. Burke: That's right.
Justice Felix Frankfurter: And the District Court did exactly what they did (Inaudible) to issue its mandate.
What the legal consequences are that for this litigation?
Mr. Richard J. Burke: That is for another day and the other day came at -- the other day came a couple of weeks later in Costello and they decided that it didn't make any difference whether the words were in there or not, a different panel of the same Court.
Justice Felix Frankfurter: So I guess we better decide Costello.
Justice Potter Stewart: So far as it appears, there hasn't been a new complaint, but it's actually in relation with the Lucchese case.
Mr. Richard J. Burke: No there has not Your Honor.
Justice Felix Frankfurter: (Inaudible) did.
Mr. Richard J. Burke: And they have not done that.
Instead, they have become concerned about the form of the judgment, but the point that I would like to make is that the Government in the relief that is asking this Court for ignores the procedural posture in which the Lucchese case is here, because I moved in the Court of Appeals to dismiss their appeal on the ground that I have discussed a few moments ago that they lacked jurisdiction to consider the question at all and they granted my motion and entered an order which is in the record in which it states that a motion having been made to dismiss for lack of jurisdiction is granted.
Then they added what I have maintained as a dictum the words that in any event the District Court, they don't say in any event.
They said the District Court had no basis to take any other action then it did and we will not pass now upon possible effect of that on future litigation, but what I say is that if the Court of Appeals intended to consider this question on the merits as to whether the District Court should or should not enter an order without prejudice in cases like this or in this case, I would assume that it would have had a full dress argument and appeal on the matter rather than dismissing it on my motion to dismiss for lack of jurisdiction.
It is what they did and what the Government is here reviewing by certiorari is whether a dismissal for lack of jurisdiction was correct in the Court of Appeals and they're asking for the relief that you direct the District Court to add the words without prejudice to the order in the Lucchese case.
Justice Felix Frankfurter: Are you standing on the dismissal of the Court of Appeals and defending it on the ground that it should have come here?
If not, you can defend it on that ground couldn't you?
Mr. Richard J. Burke: That is -- that is one ground that I'm standing on.
Justice Felix Frankfurter: Yes.
Mr. Richard J. Burke: But -- but, not only on that ground.
Justice Felix Frankfurter: I understand.
Mr. Richard J. Burke: Because -- and I -- and I finished speaking of that ground getting down.
If this Court will -- intends to consider or does consider the question about whether to issue directions to the District Court and what sort of an order the District Court should have entered whether it did or did not comply with this Court's judgment and I want to discuss that question.
Of course I feel as the -- as the Court of Appeals commented in its opinion and as both District Judges felt, that they had no business adding words to what this Court had directed, but the Government says that it was implied in this Court's judgment that these words without prejudice to refer the proceeding should be added to the order.
And, it seems to me very clear that no matter what else one may say that no such thing was implied in this Court's judgment.
This Court, if it had -- if it had adverted to that question and meant to either imply it or expressly say it could well have said in Lucchese that the Court of Appeals' decision which was adverse to Lucchese is reversed and the District Court's order is reinstated because the original District Court's order in Lucchese had been without prejudice to a further proceeding by the Government.
But instead of simply reinstating the District Court's order that this Court specifically said it's remanded to the District Court with directions to dismiss the complaint and stopped there.
So that I don't see how any District Court would imply or would think that it was implied in that statement that they should simply put back into effect their original order, this Court not having told them to do so.
Justice Charles E. Whittaker: But this cited Zucca.
Mr. Richard J. Burke: It's cited at Zucca and there is nothing in Zucca, contrary to what the counsel says.
I believe to indicate that this Court meant to hold in Zucca that the Government would have a right to start another action after the dismissal.
The point was really not passed on at all in Zucca.
That wasn't before the Court in Zucca as to what sort of a dismissal would be had.
The only point in Zucca was whether the Government had to file the affidavit or not.
Justice Charles E. Whittaker: Well the condition that these two (Inaudible) --
Mr. Richard J. Burke: Well, the language that was used in Zucca was a procedural prerequisite, but I don't reach the point Your Honor as to whether it's the jurisdictional under Rule 41 and so on.
I don't believe I reach that point Lucchese that it's necessary for me to reach that point because all the -- all the District Courts had to determine was whether it was necessarily implied in this Court's order that it should add these words without prejudice.
If it were -- if it were jurisdictional under Rule 41, there would be no occasion for adding the words without prejudice because it would be without prejudice anyway under the Rule.
So there was no way that the District Court could feel that there was an applied direction to add without prejudice.
Justice Felix Frankfurter: Well in all events, well in all events, you just said that either it's necessarily implied and we had to spell it out, you don't have to have a lawsuit to put in words that are very implicitly or if -- if that's in doubt all the government has to do it is to file a piece of paper, we will find out after finding it whether it is any good.
Mr. Richard J. Burke: That's right and if I may just add one sentence.
What the Government is actually doing here under the guise of review by certiorari is trying to get a belated petition for rehearing of that judgment that was originally entered two years ago by this Court because they end up their reply brief by asking this Court to clarify its judgment, if that be necessary and I say I already had time on that.
Justice Felix Frankfurter: I'm glad (Inaudible) both of you, but physically say now, you shouldn't have heard this case but held at Costello.
Mr. Richard J. Burke: We probably went to it in the wrong order, I agree.
Argument of Edward Bennett Williams
Chief Justice Earl Warren: United States, Petitioner versus Gaetano Lucchese, et cetera, and 59, Frank Costello, Petitioner, versus United States.
Mr. Edward Bennett Williams: Mr. Chief Justice, may it please the Court.
When we adjourned on Friday last, the Court was considering the fact and the effect of an order of dismissal entered by the lower court pursuant to what it regarded as the mandate of this Court in these companion cases.
My understanding of the position articulated by counsel for the Government on Thursday is that in as much as the Court is reviewing this question in the Lucchese case, the Government does not now object to its being reviewed in the companion case and therefore, I should like to address myself with the Court's indulgence to the merits of the question.
In this case, if the Court please, a suit was instituted against the petitioner in 1952 under the Nationality Act of 1940, charging that he had procured his citizenship in 1925, fraudulently and illegally.
That case came on for trial in 1956, and as the Government offered its proof, it became apparent that its evidence was lethally infected by wiretapping.
It became evident that the source material on which the affidavit of "good cause" had been based was equally infected with wiretapped information.
And so the trial judge entered a dismissal of that action for the reason that the Government was not able to extricate the evidence which was predicated on wiretapping from that which was not.
The trial judge entered a dismissal without prejudice and very carefully, if the Court please, enunciated what he meant by that.
The case is dismissed without prejudice to the Government initiating it anew on the very same grounds an order to that effect is filed herewith.
And the trial judge, if the Court please, went to the pains of extracting a stipulation from the petitioner agreeing that the Savings Clause of the 1952 Immigration And Nationality Act which was by that time in effect, would be operative insofar as the new proceedings were concerned, thereby, making sure that the Government's rights to initiate this action under the old Nationality Act of 1940 were preserved, showing what he meant when he said the Government has the right to initiate this case on exactly the same grounds.
But the Government didn't choose to exercise the right which it was given in the order of dismissal.
Rather it appealed to the Second Circuit, and the Second Circuit reversed on the ground that some of the wiretapping had antedated Federal Communications Act of 1934 and that of it which did not antedate the Federal Communications Act of 1934, was state wiretapping and there was nothing to inhibit the use of state wiretapped information in federal courts.
Needless to say, this was before the Benanti case came out of this Court.
A petition was filed and as has been indicated previously in the argument of this matter, a per curiam order came out of this Court on April 7, 1958, and this Court ordered the action dismissed because the Government had failed to file an affidavit of "good cause" contemporaneously with the filling of the complaint in the contravention of the decision of this Court in Zucca.
On May 1, if the Court please, for reasons sufficient unto the Government, a new action was instituted against this petitioner, not under the 1940 Act in accordance with the order of the trial judge, Judge Palmieri, but under the 1952 Immigration and Nationality Act which was by then in effect.
It was in that context that the mandate of this Court was presented to the lower court.
And so on May 31, 1958, with a new action in existence against this petitioner on the new grounds provided for in the Nationality Act of 1952, the trial judge entered an order of dismissal.
And I think that the requirements of total candor indicate that I should say to this Court that when the order came out on April 7, 1958, I believed as I read that order, that the Government had the right preserved for it, by the lower court, Judge Palmieri, to reinstitute the case under the 1940 Act but they didn't do that.
And insofar as the record shows since we don't have the ability to x-ray the mind of the lower court judge, that dismissal may have been entered for failure to comply with the order of the court below, namely, institute the new action on the very same grounds as it had been theretofore instant -- instituted with an affidavit of "good cause" based upon source material not fatally infected by wire tapping.
Justice Potter Stewart: Mr. Williams at that time could the action have been instituted under the 1940 Act after the enactment of the 1952 Act?
Mr. Edward Bennett Williams: By virtue, if the Court please, of the stipulation entered into in the old case by the petitioner certainly he had waved any rights to object to the 1940 Act being used because that case was continued in force and effect because a final order had not been entered and so the Government could have gone forward under that stipulation, under the 1940 Act but it shows not so to do.
Justice Potter Stewart: Because he only gave 40 statute had been amended and those stipulations of the petitioner are going to change the -- or all the amendment by act of Congress, was it?
Mr. Edward Bennett Williams: The 1952 Act, if the Court please, in its Savings Clause provided that any proceedings which were in effect could be preserved.
In other words, it did not terminate with litigation that was in mid flight at that time and what the petitioner did when he stipulated was to say, this case may go on because the order which was entered by the lower court was an order without prejudice for renewal.
Justice William J. Brennan: Mr. Williams (Inaudible)
Mr. Edward Bennett Williams: There was a dismissal without prejudice.
Justice William J. Brennan: (Inaudible)
Mr. Edward Bennett Williams: It was dismissed, if the Court please, on the ground as I previously indicated that there was infected evidence being offered by the Government that they were not able to go forward at that time, the trial judge had an alternative of giving the Court -- the Government an adjournment of a month in order to clean up its evidence.
But in lieu of that, it took an alternative and dismissed without prejudice giving them the right to file a new affidavit and a new suit.
Justice William J. Brennan: (Inaudible)
Mr. Edward Bennett Williams: Well, I think the dismissal Mr. Justice Brennan, must be looked at in its frame of reference, and the dismissal incorporated the stipulation showing that it was the intention of the lower court not to terminate that action with a finality but to keep it alive by virtue of the petitioner's agreement that the same proceedings might be instituted and therefore, I think that the action was kept alive within the letter and spirit of the 1952 Savings Clause.
But in any event, when the mandate of this Court came back to the lower court, a dismissal was entered.
The words without prejudice were stricken.
The order was presented with the words "without prejudice" the lower court struck those words and the Government did not see fit to appeal from that order.
Justice Felix Frankfurter: And you said it came after it was stricken that stating what -- that stating the actual difference in -- without prejudice in the absence of prejudice but I think the direct (Inaudible) that this Court (Inaudible) without prejudice --
Mr. Edward Bennett Williams: That the lower court struck out without prejudice so this Court, Mr. Justice Frankfurter.
Justice Felix Frankfurter: Our mandate didn't mention it?
Mr. Edward Bennett Williams: Your -- The mandate of this Court did not mention without prejudice.
Justice Felix Frankfurter: That the whole prejudice, the whole substantive question is what the implication of that that neutral of that (Inaudible) too much, but the question is what single significant is the attachment to our mandate which didn't (Inaudible) dismissed.
Mr. Edward Bennett Williams: Of course, Mr. Justice Frankfurter, there was an intervening factor between the order of this Court and the order entered pursuant to the mandate which certainly may have influenced the trial judge in entering a final order of dismissal in this case.
Justice Felix Frankfurter: Well, I accept your suggestion if you can speculate one way or the other while what (Inaudible)
Mr. Edward Bennett Williams: Yes, sir.
Justice Felix Frankfurter: Well you just have to take the word and draw appropriate legal significant --
Mr. Edward Bennett Williams: Yes.
Justice Felix Frankfurter: -- from what appears in the technical judgment.
Mr. Edward Bennett Williams: And what appears from the surrounding records that we have in the framework of reference in which he had signed the order.
Justice Charles E. Whittaker: Mr. Williams, if I may ask?
Do I understand that the second proceeding, the one here now had been instituted before that order of dismissal was made?
Mr. Edward Bennett Williams: It was – yes, yes, Mr. Justice Whittaker.
It was instituted on May 1, 1958.
This Court's order was entered on April 7, 1958.
Justice Charles E. Whittaker: Our mandate --
Mr. Edward Bennett Williams: But the mandate was not presented to the lower court until May 31, 1958, 31 days after the institution of the new action.
And so at the time that the lower court was presented with a mandate of this Court, he had a intervening act between the order of this Court and the presentation of the mandate which I say may have influenced him, I don't know.
But in any event, the Government confronted with an order of dismissal entered over its objection did not appeal, and the rule seems to me to be very clear that where an order of dismissal does not otherwise specify and is not entered for lack of jurisdiction or lack of venue, it constitutes an adjudication on the merits.
Mr. Justice Whittaker addressed the question on Friday, on Thursday to counsel for the Government and counsel for the other petitioner or the respondent with respect to the question of whether or not this could not have been conceived to be a dismissal for lack of jurisdiction.
No court, to my knowledge, if the Court please, has ever conceived or stated that the failure to file an affidavit of "good cause" was jurisdiction.
In the Schwinn case, which antedated the Zucca case here, the question had been raised in the Ninth Circuit that the affidavit of "good cause" had not been contemporaneously filed and that this was a reason for this hearing in the proceedings below.
This Court was not confronted with that question although the record clearly showed that the affidavit had not been filed and this Court affirmed the judgement of the lower court, although it might sua sponte have noted the jurisdictional question.
In the Zucca case, this Court refrained from saying that the affidavit of "good cause", if not filed constituted the jurisdictional bar.
Rather it said that the filing of the affidavit of "good cause" is a procedural prerequisite.
But in any event, in the case here -- for petitioner Costello, it is not clear that the entry of the order by the lower court did not relate to the intervening act namely the filing of the new suit by the Government under the 1952 statute.
Justice Charles E. Whittaker: Thirty-one days prior to trial.
Mr. Edward Bennett Williams: Thirty-one days prior, sir.
Yes, sir, thirty-one days prior.
And so I think that it can be argued reasonably that what he did was entirely in accordance with what was proper because the Government had failed to comply with the order of the Court namely to institute the new proceeding on precisely the same grounds as the old under the 1940 Act.
Chief Justice Earl Warren: Mr. Barnett.
Argument of Wayne G. Barnett
Mr. Wayne G. Barnett: Mr. Chief Justice, may it please the Court.
I'm a little surprised by the argument that the reason for the failure to say without prejudice was the institution of a new proceeding on different grounds than the original proceeding.
This is not an argument made on brief and it was my understanding that the reason for the stipulation in the dismissal of the earlier proceeding, that it could be reinstituted on precisely the same grounds was to preserve the Government's rights under the 1940 Act rather than restrict us to the grounds under the 1952 Act and not to protect the petitioner.
On the main point, the effect of the dismissal as I argued last Thursday, our primary position is that a dismissal for failure to file the essential statutory prerequisite to a denaturalization proceeding should be treated as a dismissal for lack of jurisdiction, and therefore expressly accepted from the operation of Rule 41 (b).
I want to emphasize again that that it is a problem that goes much beyond this case, that there a lot of other grounds for dismissals for failure to -- to satisfy various preconditions to suit such as the administrated claim for refund before a tax suit.
And that Rule 41 (b) would have a -- I think a very wide and very broad and equally unintended scope if these things were not treated as jurisdictional for that purpose.
I would think the essential precondition to a judgment operating as res judicata in the common law has always been an opportunity in the prior proceeding to litigate the merits.
It may not be limited to actual adjudication on the merits but at least there's an opportunity to adjudicate the merits and I don't think anything in federal rule has intended to change that.
The only dismissals that the rules themselves and to contemplate be made with prejudice are those on the merits or for frustrating the -- by the plaintiffs' own act frustrating an adjudication on the merits such as his failure to prosecute or his failure to comply with the production order.
And are -- it seems to us that to confine Rule 41 (b) to what we think was purely intended, it is necessary to give to lack of jurisdiction that exception a broad scope.
Now, on the Lucchese case, I would like to state again that if the Government prevails in Costello on the main issue, we see no necessity for this Court's deciding the questions in the Lucchese case but it might simply dismiss the writ in Lucchese on the grounds that with the dealt removed about the effect of the order, there's no present necessity of a -- resolving the jurisdictional problems in the Lucchese case.
You will have to reach those only if you hold against us on this issue in Costello and we would think that better course will be disposed of the Costello issue first.
Justice Felix Frankfurter: But the Costello issue may -- the problem in the Costello case maybe disposed off on grounds that do not reach the so called merits of this case, namely, the fact that sufficient reason would not be necessary to raise the question on the writ of certiorari.
Mr. Wayne G. Barnett: Yes.
If the Court should deny the motion to dismiss -- the motion to amend the petition in the Costello, as a matter of fact, we would have no objection then to dismissal of Lucchese except that it's already been argued and perhaps is well to go ahead and decide it.
Now if you remember that our -- our original petition in Lucchese was expressly made conditional upon the Court's taking the same question in Costello.
We did not originally asked the Court to decide Lucchese.
We filed that only protectively and we would not seriously object to its being dismissed now.
I think however that since it has been argued, it may be as well for the Court to proceed to dispose off the question that is here.
Justice Felix Frankfurter: You mean in Costello.
Mr. Wayne G. Barnett: Well, and the --
Justice Felix Frankfurter: What I'm saying is that --
Mr. Wayne G. Barnett: I think --
Justice Felix Frankfurter: -- not part of this --
Mr. Wayne G. Barnett: Yes.
Justice Felix Frankfurter: It's a question.
Mr. Wayne G. Barnett: No.
I think I would say that if leave to amend the petition in Costello is denied, the Government would have no objection to dismissal of Lucchese.
The only reason not to would be that it's -- it has been argued and presented --
Justice Felix Frankfurter: And for sure I was granted and go against it.
Mr. Wayne G. Barnett: Yes.
Justice Felix Frankfurter: All right.
Mr. Wayne G. Barnett: Yes.
So, our first contention is that if Costello is taken which we do not now oppose.
Justice Felix Frankfurter: With all due respect, I don't think it's the consummate term (Inaudible)
Mr. Wayne G. Barnett: Yes, I said --
Justice Felix Frankfurter: What if (Inaudible)
Mr. Wayne G. Barnett: I believe I said if it -- if it -- if the question is taken in Costello to precondition to our position on that question, that it ought to be treated -- the dismissal should be treated as one for lack of jurisdiction and therefore not a bar to the substantive proceeding.
Chief Justice Earl Warren: Very well.