finding privity between two entities where one was “substantially dominated, directed and controlled” by other and “operate[d] primarily to achieve [its] objectives”
How later courts described this case
- finding privity between two entities where one was “substantially dominated, directed and controlled” by other and “operate[d] primarily to achieve [its] objectives”
- explaining that sharing “precisely the same legal right” is “sufficient” but not necessary to estab- lish privity
- privity designates a person so identified an interest with a party to former litigation that he represents precisely the same legal right in respect to the subject matter involved
- “The term privity is an elusive concept, without any precise definition of general applicability”
Written by the judges who cited it.
The opinion
BAZELON, Chief Judge
(dissenting).
The issue of mootness is a variant of the “case-or-controversy” requirement. 1 it requires consideration of the nature 0f the conflicting interests involved and how they would be affected by exercising or declining jurisdiction.
determining a claim of voluntary dissolution by an organization against which the Subversive Activities Control Act is directed, the strong public interest in the Act’s enforcement must be weighed against the serious sanctions which the Act attaches to mere membership in such an organization. 2 In Labor Youth League v. Subversive Acitivities Control Board 116 U.S.App.D.C. 151 , 322 F.2d 364 (1963), we thought these sanctions made inapplicable the rule, sometimes . . ,, , . , followed m other fields, that a defend- ,, , . , , , ants voluntary acts cannot moot a proceeding. 3 Upon a showing that substan- .. . , _ , . , , , tial steps had been taken to dissolve the . .. . . ,, , organization, we remanded the case to the Subversive Activities Control Board «with instructions to pIace it in an in_ definitely inactive status.” 4 We thought that proper accommodation of the conflicting interests did not require determination of the issue of mootness, but only preservation of the record until the Board’s fears of renewed activities should *84 materialize. We have recognized this status of “quasi-mootness” in several other cases. 5 I think we should recognize it here.
I think the Jefferson School took substantial steps to dissolve. The record shows execution of a dissolution agreement, appointment of a trustee in liquidation, termination of the school’s lease, and disposal of its assets. Although the Board challenges the good faith of the dissolution on several grounds, all but one are minor. 6 The Government’s case portrays the Jefferson School as continuing in the form first of the Faculty of Social Science and now the New York School for Marxist Studies. 7 The question is whether the Jefferson School, after its claimed dissolution, has continued operation under other names.
The Faculty of Social Science began to operate in the fall of 1958 — approximately a year and a half after the Jefferson School ceased operation — and ran until the spring of 1960. The New York School for Marxist Studies has been operating since the fall of 1960. Of the 28 people who have taught at the latter school, 8 taught at the Jefferson School, and 6 of these also taught at the Faculty of Social Science. 8 The Board found that many of the courses at the Jefferson School and at the Marxist School “have been in substance the same.” 9 The Jefferson Bookshop, formerly at the Jefferson School, is now in the building of the Marxist School, but there is no evidence regarding its status or location between the closing of the Jefferson School and the opening of the Marxist School.
Though the Board relied on the similarity of the two schools, it refrained from finding that the Marxist School is in fact a continuation of the Jefferson School:
“There is a strong suggestion from the evidence of a purpose common to all three schools — indoctrination through Communist Party member-instructors of ‘Marxism as the theory and practice of scientific socialism.’ The New York School for Marxist Studies has many of the indicia of the Jefferson School of Social Science.
***** *
“Under all the circumstances the Board concludes that permanent dissolution of The Jefferson School has not been established by the preponderance of the evidence; a framework has been maintained and activity has continued from time to time which has many of the indicia of the *85 previous activity of the organization.” 10
This court supports the Board’s view that the issue of mootness may be resolved against the Jefferson School without finding whether the Marxist School is a •continuation of the Jefferson School. But the Jefferson School exists as the Marxist •School or not at all. To affirm the Board’s order is to say the Jefferson .School does exist as the Marxist School. I do not see how we can make this finding when the Board could not.
This case will have substantial impact •on the Act’s definition of “organization,” 11 and hence on the ultimate effectiveness of the Act. The Subversive Activities Control Board says:
“These questions are properly viewed in the light of the fact that this unincorporated activity is a Communist-front organization. Being this latter type the technical organizational form otherwise assumed by the group from time to time is not of paramount importance and formal organizing and dissolving processes are not necessarily controlling.” 12
If the Board’s broad view is adopted, any organization or group of people which resembles a group earlier found to be a Communist-front or Communist-action organization may be required to register without the procedural safeguards of the Act. 13 On the other hand, if “organization” were construed narrowly and totally new hearings were required after periodic changes of name, this would make the Act practically meaningless. I think we avoided both pitfalls in Labor Youth League and should follow that case here.
I do not reach any other questions.
. California v. San Pablo & Tulare R.R., 149 U.S. 308 , 13 S.Ct. 876 , 37 L.Ed. 747 (1893) ; Poe v. Ullman, 367 U.S. 497, 503-04 , 81 S.Ct. 1752 , 6 L.Ed.2d 989 (1961). Cf. Bickel, Foreword: The Passive Virtues, 75 Harv.L.Rev. 40 (1961).
. “Meaningless in many ways though the formal listing of a non-existent organization on the register would be, the people who had in years past been members— without, let us remember, realization of the Communist nature of what was once an entity — would be enveloped in a cloud, faced with the possibility of drastic events if some Government official, or some un-neighborly neighbor, or some uncordial fellow employee should choose to accuse them of holding illegally a Government or defense-plant job.” Labor Youth League v. Subversive Activities Control Board, 116 U.S.App.D.C. 151, 159-60 , 322 F.2d 364, 372-73 (1963).
. See, e.g., Walling v. Helmerich & Payne, Inc. 323 U.S. 37 65 S.Ct. 11 , 89 L.Ed. 29 (1944).
. 116 U.S.App.D.C. at 161 , 322 F.2d at 374 .
. Blau v. Subversive Activities Control Board, 116 U.S.App.D.C. 184 , 322 F.2d 397 (1963) ; Washington Pension Union v. Subversive Activities Control Board, 116 U.S.App.D.C. 185 , 322 F.2d 398 (1963) ; Haufrecht v. Subversive Activities Control Board, 116 U.S.App.D.C. 190 , 322 F.2d 403 (1963). But see California Labor School v. Subversive Activities Control Board, 116 U.S.App.D.C. 180 , 322 F.2d 393 (1963) ; Patterson v. Subversive Activities Control Board, 116 U.S. App.D.C. 182, 322 F.2d 395 (1963), where the evidence showed a cessation of activities but no substantial steps to dissolve the organization.
. Although there were “normally” thirteen trustees, there were only eight signatures to the dissolution agreement. The realty company which leased the building to the Jefferson School and had some directors in common with the school still exists. The School’s library still exists, but is in storage and apparently not used. It is agreed to be a unique collection of Marxist literature and is obviously being kept together for future use by someone, but this does not show that the school which once had it still exists. These facts show at most a significant likelihood of a reactivation, which does not justify departure from Labor Youth League . Blau v. Subversive Activities Control Board, supra.
. Supplemental Memorandum of Attorney General on Motion to Dismiss the Petition for Review and Vacate Board’s Order for Mootness, pp. 6-7.
. When the Board held its hearings in 1954, the Jefferson School’s faculty numbered approximately 50 and its enrollment about 1200; the Marxist School’s enrollment is about 200. Thus the Marxist School is at most only a rump of the Jefferson School.
. Report of the Board on Remand at 7 (June 20, 1962).
. Report of the Board on Remand at 10, emphasis supplied.
. “The term ‘organization’ * * * includes a group of persons, whether or not incorporated, permanently or temporarily associated together for joint action on any subject or subjects.” Subversive Activities Control Act § 3(2), 50 U.S.C. § 782 (2).
. Report of the Board on Remand at 4-5.
. This danger is especially serious where the activity involved is a school. Teaching is entitled to a high degree of protection.