|Glidden Co. v. Zdanok
288 F.2d 99; 111 U.S.App.D.C. 238, 296 F.2d 360, affirmed.
[ Harlan ]
[ Clark ]
[ Douglas ]
Glidden Co. v. Zdanok
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
MR. JUSTICE CLARK, with whom THE CHIEF JUSTICE joins, concurring in the result.
I cannot agree to the unnecessary overruling of Ex parte Bakelite Corp., 279 U.S. 438 (1929), and Williams v. United States, 289 U.S. 553 (1933). Both were unanimous opinions by most distinguished Courts, [n1] headed in the Bakelite case by Chief Justice Taft and in Williams by Chief Justice Hughes.
Long before Glidden v. Zdanok was filed, the Congress had declared the Court of Claims "to be a court established under article III of the Constitution of the United States." Act of July 28, 1953, § 1, 67 Stat. 226. Not that this ipse dixit made the Court of Claims an Article III court, for it must be examined in light of the congressional power exercised and the jurisdiction enjoyed, together with the characteristics of its judges. But the 1953 Act did definitely establish the intent of the Congress, which, prior to that time, was not clear in light of the Williams holding 20 years earlier that it was not an Article III court. [p586]
It is my belief that, prior to 1953, the Court of Claims had all of the characteristics of an Article III court -- jurisdiction over justiciable matters, issuance of final judgments, judges appointed by the President with consent of the Senate -- save as to the congressional reference matters. It was the fact that a substantial portion of its jurisdiction consisted of congressional references that compelled the decision in Williams that it was not an Article III court, and therefore the salaries of its judges could be reduced. [n2] Since that time, the Article III jurisdiction of the Court of Claims has been enlarged by including original jurisdiction under several Acts, e.g., suits against the United States for damages for unjust conviction, Act of May 24, 1938, §§ 1-4, 52 Stat. 438, 28 U.S.C. § 1495 and appellate jurisdiction over tort suits against the United States tried in the District Courts, Act of Aug. 2, 1946, § 412(a)(2), 60 Stat. 844, 28 U.S.C. § 1504 and over suits before the Indian Claims Commission, Act of May 24, 1949, § 89(a), 63 Stat. 102, 28 U.S.C. § 1505. In addition, the former jurisdiction over questions referred by the Executive branch was withdrawn in 1953. Act of July 28, 1953, § 8, 67 Stat. 226. The result is that practically all of the court's jurisdiction [p587] is now comprised of Article III cases. And I read the 1953 Act as unequivocally expressing Congress' intent that this court -- the jurisdiction of which was then almost entirely over Article III cases -- should be an Article III court, thereby irrevocably establishing life tenure and irreducible salaries for its judges.
It is true that Congress still makes legislative references to the court, averaging some 10 a year. The acceptance of jurisdiction of either executive or legislative references calling for advisory opinions has never been honored by Article III courts. Indeed, this Court since 1793 has consistently refused so to act. Correspondence of the Justices, 3 Johnston, Correspondence and Public Papers of John Jay (1891), 486-489. Muskrat v. United States, 219 U.S. 346 (1911). I do not construe the legislative history of the 1953 Act to be so clear as to require the Court of Claims to carry on this function, which appears to be minuscule. On the contrary, the congressional mandate clearly and definitely declared the court "to be a court established under article III." I would carry out that mandate. In my view, the Court of Claims, if and when such a reference occurs, should with due deference advise the Congress, as this Court advised the President 169 years ago, that it cannot render advisory opinions.
Likewise, I find that the Court of Customs and Patent Appeals has been an Article III court since 1958. It was created by the Congress in 1909 to exercise exclusive appellate jurisdiction over customs cases. Payne-Aldrich Tariff Act of Aug. 5, 1909, 36 Stat. 11, 105-108. At that time, these cases were reviewed by Circuit Courts of Appeals -- clearly of Article III status -- 36 Stat. 106, and they have since been considered on certiorari by this Court without suggestion that they were not "cases" in the Article III sense. E.g., The Five Per Cent. Discount [p588] Cases, 243 U.S. 97 (1917). [n3] The Congress enlarged the jurisdiction of the Court of Customs and Patent Appeals in 1922 to include appeals on questions of law from Tariff Commission findings in proceedings relating to unfair practices in the import trade. Tariff Act of 1922, 42 Stat. 943, 944. In 1929, this Court, in Bakelite, supra, which involved a tariff matter, found these references to be of an advisory nature and, on this basis, declared the Court of Customs and Patent Appeals to be a legislative, rather than an Article III, court. The Bakelite decision indicates that this Court was of the impression that the tariff jurisdiction of the Court of Customs and Patent Appeals would be significant. However, since that time, that court has handled but four such references -- and only one in the last 27 years. At about the same time that the Bakelite opinion came down, Congress transferred the appellate jurisdiction in patent and trademark cases from the Court of Appeals of the District of Columbia to the Court of Customs and Patent Appeals. Act of March 2, 1929, §§ 1, 2, 45 Stat. 1475. Thus, contrary to the apparent assumption in Bakelite, the business of that court now consists exclusively of Article III cases -- with tariff references practically nonexistent (one in the last 27 years). In view of this evolution of its jurisdiction, I believe the court became an Article III court upon the clear manifestation of congressional intent that it be such. Act of Aug. 25, 1958, § 1, 72 Stat. 848.
As I have indicated supra, the handling of the tariff references -- numbering only 6 in 40 years -- is not an Article III court function. The Congress has declared [p589] the Court of Customs and Patent Appeals to be an Article III court. It should, therefore, if and when such a case arose, with due deference, refuse to exercise such jurisdiction. [n4]
I see nothing in the argument that the 1953 and 1958 Acts so changed the character of these courts as to require new presidential appointments. Congress was merely renouncing its power to terminate the functions or reduce the tenure or salary of the judges of the courts. Much more drastic changes have been made without reappointment. [n5] And there is no significance to the fact that Judge Jackson, who presided over the Lurk trial, was not in active status in 1958 when Congress declared his court to be an Article III court. He remained in office as a judge of that court even though retired, cf. Booth v. United States, 291 U.S. 339 (1934), and his judgeship was controlled by any act concerning the jurisdiction of that court or the status of its judges.
I would affirm.
1. Bakelite: Taft, Holmes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Sanford and Stone. Williams: Hughes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Stone, Roberts and Cardozo.
"From the outset, Congress has required it [the Court of Claims] to give merely advisory decisions on many matters. Under the act creating it, all of its decisions were to be of that nature. Afterwards some were to have effect as binding judgments, but others were still to be merely advisory. This is true at the present time."
Williams v. United States, supra, at 569 (quoting from Ex parte Bakelite).
Further reflection tends only to confirm the views expressed in the Bakelite opinion . . . , and we feel bound to reaffirm and apply them. And, giving these views due effect here, we see no escape from the conclusion that, if the Court of Customs Appeals is a legislative court, so also is the Court of Claims.
Williams at 571. The Bakelite decision was posited squarely on the legislative reference function. See Ex parte Bakelite, supra, 454-458.
3. That its original jurisdiction was in "cases" in the Article III, § 2, sense cannot be questioned. See In re Frischer Co., 16 Ct.Cust.App. 191, 198 (1928); Osborn v. Banc of U.S., 9 Wheat. 738, 819 (1824); Interstate Commerce Commission v. Brimson, 154 U.S. 447 487 (1894); Tutun v. United States, 270 U.S. 568, 576-577 (1926).
4. The validity of Judge Jackson's participation, as the Government points out, might also be sustained under the Act of September 14, 1922, c. 306, § 5, 42 Stat. 837, 839, which provided for the assignment of judges of the Court of Customs Appeals to the courts of the District of Columbia. This Act was on the books when Judge Jackson took his seat on the Court of Customs and Patent Appeals as well as when the Lurk case was tried.
5. Nor does my holding carry any implication that judgments entered prior to the date of these Acts in which judges of these courts participated might be collaterally attacked. Ex parte Ward, 173 U.S. 452 (1899).