Petition — United States Navigation, Inc. v. Esposito

Supreme Court, U. $i

' FILED

| MAR 16 1978 |

a JR. al

In THE

Supreme Court of the United States

Octoser Term, 1977

No. a & Sn 1 2 Y 6

Unitep Srates Navication Inc.,

and

Scrinpia Steam Nayieation Co., Lop.,

Petitioners,

—against—

Joun Esposito,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Wim M. Kiwpari

Counsel for Petitioners

1 Battery Park Plaza

New York, N.Y. 10004

IN THE

Supreme Count of the United States

Octroser Term, 1977

Unrtep Srates Navication Inc.,

and

Scinpia Steam Navication Co., Lap.,

Petitioners,

—against—

Joun Esposito,

Respondent.

>

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioners respectfully pray that a writ of certiorari

issue to review the judgment of the United States Court

of Appeals for the Second Circuit entered herein on

October 17, 1977.

Opinion Below

There is no opinion by the Court of Appeals, which

summarily affirmed on the unreported District Court

opinion, printed in app’x A.

Jurisdiction

The judgment of the Court of Appeals dated and entered

October 17, 1977, is printed in app’x B. The orders of the

Court of Appeals dated January 4, 1978, denying timely

petition for rehearing and suggestion for rehearing in

bane, are printed in app’xes C and D. This Court’s juris-

diction is invoked under 28’ U.S.C. 1254(1).

Questions Presented

1. Whether a demise charterer is liable without negli-

gence for personal injury caused by a latent defect existing

before the demise?

2. If the answer to 1 is affirmative, whether the de-

misee’s undisclosed principal is liable on ground of respon-

deat superior?

3. Regardless of the answers to 1 and 2, whether the

Court of Appeals’ summary affirmance warrants an exer-

cise of this Court’s power of supervision?

Statement

Invoking 28 U.S.C. 1333(1) admiralty jurisdiction, re-

spondent Esposito, a longshoreman, sued petitioners U.S.

Navigation, a steamship agency, and Scindia, a shipowner,

in the United States District Court for Eastern New

York to recover damages for personal injury caused by

a “defect in the beams supporting the deck [of a barge,

which] could not be discovered by a reasonable inspection

* * * a latent defect” (app’x A, pp. 5a-6a). The defect

3

existed before U.S. Navigation hired the barge, and was

unknown to U.S. Navigation before Esposito’s injury.

The barge was used to receive cargo discharged from

Scindia’s ship. While Esposito was stowing some of that

cargo, a portion of the barge’s deck on which he had

walked more than 30 times, and which “appeared to be

safe and able to support the weight of the longshoremen

and cargo” (app’x A, p. 3a), unexpectedly gave way be-

cause of the latent defect in the supporting beams.

After bifureated trial of the liability issues, Chief Judge

Mishler found that U.S. “Navigation acted independently

in the hiring” of the barge (app’x A, p. 4a) as “agent

of an undisclosed principal” (app’x A, p. 5a), and held

U.S. Navigation liable as “demise charterer of the barge”

(app’x A, p. 4a) and Scindia liable “on the traditional con-

cept of respondeat superior [that] * * * [t]he undisclosed

principal is liable for the acts of its agent performed within

the scope of the agency” (app’x A, pp. 4a, 5a). He dis-

missed petitioners’ indemnity claim against Esposito’s em-

ployer because the latent defect was not reasonably dis-

eoverable, and subsequently awarded Esposito 100% of his

recoverable damages, thereby implicitly finding that Espo-

sito was not contributorily negligent.

Petitioners appealed solely the question of their liability

to Esposito. The Court of Appeals summarily affirmed

“on the opinion of Chief Judge Mishler below” (app’x B)

and denied petitioners’ timely petition for rehearing

(app’x C) and suggestion for rehearing in banc (app’x D).

Reasons for Granting the Writ

I

The holding that a demisee is liable without negligence

for personal injury caused by a latent, unknown, not rea-

sonably discoverable defect existing before the demise is

unprecedented, and raises an important question which

should be settled by this Court because of its “responsi-

bility for fashioning the controlling rules of admiralty

law.” Fitegerald v. United States Lines, 374 U.S. 16, 20

(1963); United States v. Reliable Transfer Co., 421 US.

397, 409 (1975).

The question is commercially important because steam-

ship agents constantly hire barges and other harbor craft

for use by their principals and, until the opinion below,

neither did, nor considered it necessary to, obtain costly

insurance against liability for non-negligent injuries, dam-

ages, or losses occurring during the hire period, and

because demisees customarily rely on demisors’ express

or implied seaworthiness warranties at the time the demise

commences and do not deem it either requisite or desirable

to otherwise protect themselves against non-negligent lia-

bility for pre-demise unseaworthiness.

The question is legally important because the holding

below is contrary to the rationale of the personal obliga-

tion relationship to unseaworthiness liability which the

Court has twice granted certiorari to consider, and then

left undecided because of other considerations. Guzman

v. Pichirilo, 369 U.S. 698, 699, 700 (1962); Reed v. The

Yaka, 373 U.S. 410, 411, 412 (1963); cf., the dissents in

Guzman, p. 704, and Reed, p. 419 n.2. It seems reasonably

5

settled in light of decisions such as Cannella v. Lykes

Bros. S.S. Co., 174 F. 2d 794, 795-797 (2 Cir. 1949), cert.

den. 338 U.S. 859 (1949), that, although a demised ship

can be sued in rem for both pre-demise and post-demise

unseaworthiness, a non-negligent demisor is personally

liable only for pre-demise unseaworthiness, and a non-

negligent demisee is personally liable for post-demise

unseaworthiness. What is not, but should *e, settled, con-

sistent with those rules of admiralty law and with the

personal obligation relationship to unseaworthiness lia-

bility persuasively substantiated in Ruiz Pichirilo v.

Maysonet Gueman, 290 F. 2d 812, 814-815 (1 Cir. 1961),

rev’d on other grounds sub nom. Guzman v. Pichirilo, 369

U.S. 698 (1962), and reaffirmed in Ramos v. Beauregard,

Inc., 423 F. 2d 916, 917-918 (1 Cir. 1970), cert. den. 400

U.S. 865 (1970), is whether a non-negligent demisee can

be held personally liable for pre-demise unseaworthiness.

The holding that a demisee’s undisclosed principal is

liable for unseaworthiness on the respondeat suwpertor

“concept” that “[t]he undisclosed principal is liable for

the acts of its agent performed within the scope of the

agency” (app’x A, p. 5a) is “such a significant departure

from longstanding principles of [admiralty and agency]

law that the petition for certiorari should be granted.”

Cf., Roanwell Corp. v. Plantronics, Inc., 429 U.S. 1004,

1005 n.2, 1009 (1976), dissent by Mr. Justice White, joined

by Mr. Justice Brennan, where the “Court of Appeals for

the Second Circuit affirmed in a short, uncritical, per

curiam opinion * * * a significant departure from long-

standing principles of patent law”.

6

Liability for unseaworthiness “is peculiarly and exclu-

sively the obligation of the owner”, Seas Shipping Co. v.

Sieracki, 328 U.S. 85, 100 (1946), or owner pro hac vice,

Reed v. The Yaka, 373 U.S. 410, 412-413 (1963), and is “a

species of liability without fault * * * a form of absolute

duty”. Seas Shipping Co., pp. 94-95; Mitchell v. Trawler

Racer, Inc., 362 U.S. 539, 549 (1960). Non-negligent U.S.

Navigation committed no “acts” for which its principal can

properly be held secondarily liable on the ground of respon-

deat superior. If U.S. Navigation is liable as demisee-

owner pro hac vice for the barge’s latent unseaworthiness,

that liability is “exclusive”.

Ill

The Court of Appeals’ summary affirmance, and re-

affirmance, of an opinion which either vitiates or trans-

forms fundamental law, and is either plainly wrong or

so obscurely right as to mystify entire law firms, “has so

far departed from the accepted and usual course of judicial

proceedings, or so far sanctioned such a departure by a

lower court, as to call for an exercise of this court’s power

of supervision.” Sup. Ct. Rule 19.1(b).

“Traditionally, then, the function of the appellate court

has been to expound what the law should be. As

chief oracle, by virtue of authority and prestige, it

has furnished a pattern of thought by which lower

courts, lawyers, and laymen might guide themselves—

a refining process by which judicial dross has been

separated from the gold. A serious undermining of

that function has come about through the practice,

common in several appellate courts, of affirming de-

cisions without opinion.” Mareus, Affirmance Without

Opinion, 6 Fordham L.Rev. 212, 213 (1937).

7

“A most important function is the writing of opin-

ions. Opinions are to serve a number of purposes

at least two of which are highly significant. One is

that an articulated discussion of the factors, legal,

factual or both, which lead the Court to one rather

than to another result, gives strength to the system,

and reduces, if not eliminates, the easy temptation

or tendency to ill-considered or even arbitrary action

by those having the awesome power of almost final

review. The second, of course, is that the very dis-

cursive statement of these articulated reasons is the

thing out of which law—and particularly Judge-made

law—grows. It is an essential part of the process of

the creation of principles on which predictions can

fairly be forecast as a basis for conduct, accountabil-

ity, or the like. All Judges know that in some cases

this latter factor may almost completely transcend

the importance of the case which is the vehicle bring-

ing the questions forward.” NURB v. Amalgamated

Clothing Workers, 430 F. 2d 966, 972 (5 Cir. 1970).

“The most dramatic evidence of the importance which

attorneys attach to a written record of the reason for

a decision can be found in the view expressed by more

than two-thirds of the attorneys surveyed [in the

Second, Fifth, and Sixth Circuits] that the due process

clause of the Constitution should be held to require

courts of appeals to write at least a brief statement

of the reasons for their decisions.” Commission for

Revision of the Federal Court Appellate System,

Structure & Internal Procedures: Recommendations

for Change 69 (1975).

“TWje recommend that in every case there be some

record, however brief, and whatever the form, of

8

reasoning which impelled the decision. * * * Opinions

can be signed or unsigned, published or unpublished,

but in each case the litigants and their attorneys would

be apprised of the reasoning which underlies the con-

clusion of the court.” Commission on Revision of the

Federal Court Appellate System, Structure & Internal

Procedures: Recommendations for Change 73 (1975).

While “courts of appeals should have wide latitude in

their decisions of whether or how to write opinions * * *

especially * * * with respect to summary affirmances”,

Taylor v. McKeithen, 407 U.S. 191, 194 n.4 (1972), that

discretion is not absolute and resort to affirmances without

opinions “is certainly not to be encouraged in other than

clearly deserving cases.” Haworth, Screening & Summary

Procedures in the United States Courts of Appeals, 1973

Wash. Univ. L.Q. 257, 272. There are “factors which would

make application of the Rule [permitting affirmance with-

out opinion] wrong or unwise or inappropriate”, NLRB

v. Amalgamated Clothing Workers, supra, 430 F. 2d, p.

973, and there are “cases in which an opinion by the Court

seems * * * necessary, not merely to resolve an issue con-

cededly present, but to denominate for the benefit of the

parties and the District Court what issues the Court

conceives to be resolved by its summary affirmance.”

Buchanan vy. Evans, 423 U.S. 963, 975 (1975), dissent by

Mr. Justice Rehnquist, joined in relevant part by the Chief

Justice and Mr. Justice Powell. The Court has granted

certiorari and remanded for elucidation when it was not

clear that a court of appeals’ summary disposition cor-

rectly applied the proper determinative standards. £.g.,

Taylor v. McKeithen, supra, 407 U.S., p. 194; Will v.

United States, 389 U.S. 90, 104, 107 (1967); Northcross

9

v. Memphis Board of Education, 412 U.S. 427, 428-429

(1973).

Vindicating the Fifth Cirecuit’s summary disposition

Rule 21, printed in app’x E, which, unlike the Second

Cireuit’s Rule § 0.23, also printed in app’x E, has more

specific safeguards and is limited to affirmances, Chief

Judge Brown avowed that Rule 21 “must be carefully and

selectively employed. * * * This means that * * * it must

be sparingly used.” NLRB vy. Amalgamated Clothing

Workers, supra, 430 F. 2d, p. 972. The Second Circuit’s

Rule § 0.23 has not been sparingly used. During the past

10 years the ratio between its Rule $0.23 dispositions

and total decisions has risen from 11.5% to an alarming

54%, United States Courts, Second Circuit Report 1977,

p. 20, Table 1, and, like a scythe, has been used to sum-

marily affirm, dismiss, grant or deny enforcement, modify,

remand, reverse, or vacate. 556 F. 2d 554-563; 559 F. 2d

1202-1206; 562 F. 2d 37-40.

A brief explication by the Court of Appeals of its affirm-

ance that petitioners were properly held liable would not

be supererogatory; would not have unreasonably added to

that Court’s burden; and would have lessened this Court’s

burden.

Conclusion

For the foregoing reasons, this petition should be

granted.

Respectfully submitted,

Wiuuiam M. Kimsau

Counsel for Petitioners

New York, N.Y.

March ‘6, 1978

Appendices

APPENDIX A

District Court Opinion on Liability

(Filed February 16, 1977)

UNITED STATES DISTRICT COURT

Eastern District or New York

73 Civil 655

—~——

Joun Esposito,

Plaintiff,

—against—

Unitep States Navigation Ino.

—and—

Scrnpia Steam Navication Co. Lrp.,

Defendants.

Scrnpia Steam Navication Co. Lrp.,

Third-Party Plaintiff,

—against—

INTERNATIONAL TERMINAL OperatinG Co. Inc.,

Third-Party Defendant.

MisHueErR, Cu. J.

This is an action for personal injuries by a longshore-

man employed by International Terminal Operating Co.

Inc. (“ITO”), against Scindia Steam Navigation Company,

2a

Ltd. (“Seindia”), the owner of carge vessel M/V “Jala-

dhanya” and United States Navigation, Inc. (“Naviga-

tion”), Scindia’s agent. Esposito was injured aboard a

barge on March 18, 1969, while engaged in stowing bales

of hemp discharged from the #5 hatch of the Jaladhanya

onto the deck of the barge. Defendant—third-party plain-

tiff—seeks indemity from ITO. The trial on the issue of

liability was conducted by the court without a jury. The

court finds as follows:

The M/V Jaladhanya, owned by Scindia, arrived at

Pier 12 in Brooklyn, New York, on March 13, 1969, with

a cargo of hemp and similar merchandise. Its ultimate

destination was Boston. Because of a strike of longshore-

men in Boston Harbor, defendants decided to transfer the

cargo to a sister cargo vessel, the M/V “Jalagopal”, which

was berthed at Pier 9. Navigation had a barge, “P-98”,,

for an indefinite term since February 29, 1969, which was

owned by Petterson Lighterage and Towing Corp.’ The

barge was without motor power. The oral charter was on

a day-to-day basis at $80 per day, and included the services

of Hubert E. Reel, who was described as the “captain” of

the barge. During this period, the barge and its “captain”

were under the direct control of Navigation. Reel’s duties

with relation to the barge consisted of securing the lines

and acting as a watchman over its cargo. When directed

by the ship’s personnel, he made a check of the cargo and

reported it back.

1 Plaintiff commenced an action against Petterson in this court

on March 25, 1970 (70 C 362). Petterson filed a petition in bank-

ruptey on May 11, 1970, in the United States District Court for

the Southern District of New York. Plaintiff thereupon abandoned

the claim against Petterso-. The case was dismissed for failure

to appear on December 11, 1973. The complaint in the case at

bar was filed on May 10, 1973.

oo

3a

On the morning of March 18, 1969, Navigation assigned

barge “P-98” to the service of the Jaladhanya. The barge

was towed by tug to the stern of the Jaladhanya. Reel

was aboard the barge during the towing operation. The

deck of the barge was a patchwork, consisting of boards

of various sizes and dimensions placed over supporting

beams. The shell leaked and required bilge pumps to keep

it afloat.

ITO commenced discharging the cargo from the Jala-

dhanya at about 8:00 A. M., soon after the barge was

secured. The ship’s winch removed the bales of hemp from

the #5 hatch and placed them on the pier. A crane then

moved the cargo from the pier onto the barge. Plaintiff

and another longshoreman aboard the barge removed the

bridle from the draft, and a hilo operator then stowed the

bales of hemp. At about 8:00 P. M. on March 18, 1969,

plaintiff walked toward a draft that had landed on the

deck of the barge for the purpose of removing the bridle.

Boards had been substituted for the original planking of

the deck in and about the area where the draft had landed.

The deck in that area appeared to be safe and able to

support the weight of the longshoremen and cargo. As

plaintiff stepped toward the draft, the board beneath him

yielded and his right foot was thrust through the deck to

his groin.

Defendant Navigation answers that the barge charter

was not a demise; if indeed it was, then “the sublet to

Secindia was not a demise” (Trial brief, p. 5), and a bare-

boat charterer is not liable for personal injuries arising

from unseaworthiness due to a latent defect existing be-

fore the demise (Trial brief, p. 5).

“To create a demise the owner of the vessel must com-

pletely and exclusively relinquish possession, command and

4a

navigation thereof to the demisee,” Gueman v. Pichirdlo,

369 U.S. 698, 699, 82 S.Ct. 1095, 1096 (1962). Petterson

relinquished possession and control of the barge and placed

Reel under Navigation’s command. Charters of barges with

“captains” in the employ of the owner are generally held

to be demises.?

Navigation’s argument that the “sublet” was not a de-

mise rests on the relationship between Navigation and

Scindia with reference to the barge. The original hiring

of the barge was not for Scindia’s account. Navigation

acted independently in the hiring. It was the demise char-

terer of the barge. On March 18, when it assigned the

barge to the service of the Jaladhanya it acted as agent

for Scindia. Navigation did not surrender control of the

barge. The services were performed pursuant to Navi-

gation’s direction and under its control. The claim against

Scindia is based on the traditional concept of respondeat

superior. A general agency agreement is not a maritime

contract. P. D. Marchessini & Co. v. Pacific Marine Corp.,

227 F. Supp. 17, 18 (S.D.N.Y. 1964). See also Admiral

Oriental Line v. United States, 86 F.2d 201 (2d Cir. 1936).

As a general rule, federal law governs admiralty claims.

Nevertheless, an accommodation is proper where local law

2In Hastorf v. F.R. Long-W.G. Broadhurst Co., 239 Fed. 852

(2d Cir. 1917), an oral charter for a dumper-scow including a

man to take care of her at $20 per day was held to be a demise.

In The Willie, 231 Fed. 865, 867 (2d Cir. 1916), the court held:

“Charterers of scows in this harbor, without motive power of their

own and subject to orders and control of charterers, are treated

as demises, even though the owner keeps a man aboard, called

captain by courtesy,” citing Monk v. Cornell Steamboat Co.,

198 Fed. 472, 117 C.C.A. 232. In Aird v. Weyerhaeuser SS. Co.,

169 F.2d 606 (3d Cir. 1948), cert. denied, 337 U.S. 959, 69 S. Ct.

1521 (1949), where a barge was brought to defend ats dock and

left in defendants possession for the purpose of luading it with

pipe, the court held defendants to be ihe demisee of the barge.

RE A ON a ls

ei

5a

expands the rights flowing from a breach of a maritime

duty, Kossick v. United Fruit Co., 365 U.S. 731, 739, 81

S.Ct. 886, 892 (1961). The agent of an undisclosed princi-

pal is liable for its own acts, Cleary Bros. v. Christie Scow

Corp., 215 F.2d 740 (2d Cir. 1954), The Falkefjell v. Arnold

Bernstein Shipping Co. Inc., 223 F.2d 820 (2d Cir. 1955).

The undisclosed principal is liable for the acts of its agent

performed within the scope of the agency.

Defendant’s final argument is that it is not liable*for

latent defects existing before the demise. The demise char-

terer is the owner of the barge pro hac vice and is liable

for personal injuries to seaman, Aird v. Weyerhaeuser S.S.

Co., supra at 610; Cromwell v. Slaney, 65 F.2d 940, 941

(1st Cir. 1933). The warranty of seaworthiness running

from the owner to the charterer gives the charterer a right

of indemnity for any loss the charterer sustains by reason

of a latent defect existing at the time of the charter.

Connecticut Adamant Plaster Co. v. James McWilliams

Blue Line Inc., 149 F. Supp. 122, 126 (S.D.N.Y. 1957),

aff'd, 253 F.2d 785 (2d Cir. 1958). The Doyle, 105 F.2d

113 (3d Cir. 1939), cited by defendants (Trial brief p. 5)

is not to the contrary.°

Turning to the defendant third-party complaint for in-

demnity against ITO, I find that the defect in the beams

supporting the deck could not be discovered by a reason-

able inspection. The stevedore’s warranty to perform the

8 The district court’s decision is not reported. Nor is it explained

in the Court of Appeals’ reversal. It is clear, however, that the

Court of Appeals recognized the right of duPont (the shipper

of the lost cargo) to recover against Sheridan, the charterer of

the Lighter Doyle. This court interprets the order of the Court

of Appeals relating to impleading, as permitting a claim over for

the loss suffered by the charterer against Cox, the owner of the

lighter.

6a

stevedoring services in a workmanlike manner does not

obligate him to uncover defects not readily discoverable

through a cursory examination. The defect in the support

of the deck at the site of the injury was a latent defect.

‘Third-party defendant’s motion to dismiss the third-party

complaint is granted, Vaccaro v. Alcoa Steamship Com-

pany, 405 F.2d 1133, 1138 (2d Cir. 1968).*

The court finds for the plaintiff and against Navigation

and Scindia.

The court directs a trial on the issue of damages on

February 22, 1977, at 10:00 A. M., and it is

So ORDERED.

/s/ Jacop MIsSHLER

U.S.D.J.

* Entry of judgment is stayed until the time of entry of judg-

ment in favor of plaintiff.

7a

APPENDIX B

Judgment of the Court of Appeals

(Entered October 17, 1977)

UNITED STATES COURT OF APPEALS

For tHE Seconp Circuit

At a stated Term of the United States Court of Appeals

for the Second Circuit, held at the United States Court-

house in the City of New York, on the 17th day of October,

one thousand nine hundred and seventy-seven.

Present:

HonoraBie Paut R. Hays,

HonoraBLeE Murray I. Gurrein,

HonoraBLeE T'Homas J. MESKILL,

Circwt Judges.

77-7213

<j

Joun Esposito,

Plaintiff-Appellee,

—against—

Unirep Srates Navication Inc.

—and—

Scinpia Steam Navieation Co. Lap.,

Defendants-A ppellants.

<>

Appeal from the United States District Court for the

Eastern District of New York.

8a

This cause came on to be heard on the transcript of

record from the United States District Court for the

Eastern District of New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby ordered,

adjudged, and decreed that the judgment of said District

Court be and it hereby is Arrmmep on the opinion of

Chief Judge Mishler below.

Pau. R. Hays

Murray I. Gurrein

Tomas J. MESKILL

Circuit Judges

Ones oo ee ee

9a

APPENDIX C

Order of the Court of Appeals Denying Rehearing

(Filed January 4, 1978)

UNITED STATES COURT OF APPEALS

Seconp Circuit

At a Stated Term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Court House, in the City of New York, on the fourth day

of January, one thousand nine hundred and seventy-eight.

Present:

HonoraB_e Pavur R. Hays,

HonoraBLeE Murray I. Gurren,

HonoraBte THomas J. MESKILL,

Circwit Judges.

77-7213

—~

Joun Esposito,

Plaintiff-Appellee,

Vv.

Unitep States Navieation Inc., and Scrnpia Steam

Navigation Company, Ltp.,

Defendants-A ppellants.

—<

A petition for a rehearing having been filed herein by

counsel for the appellants,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is Deniep.

A. Daniet Fvusaro

Clerk

10a

APPENDIX D

Order of the Court of Appeals Denying Suggestion

for Rehearing in Banc

(Filed January 4, 1978)

UNITED STATES COURT OF APPEALS

Seconp Crmcvuit

At a stated term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Court House, in the City of New York, on the fourth day

of January, one thousand nine hundred and seventy-eight.

77-7213

—<>—

Joun Esposito,

Plaintiff-Appellee,

v.

Unitep Stares Navigation Inc., and Scinpia Sream

Navication Company, Ltp.,

Defendants-Appellants.

>

A petition for rehearing containing a suggestion that the

action be reheard in banc having been filed herein by

counsel for the appellants, and no active judge or judge

who was a member of the panel having requested that a

vote be taken on said suggestion,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is Deniep.

Irvine R. KaurmMan

Chief Judge

A ee A CORRE a AN CCI i CO Te

ee ee ee

lla

APPENDIX E

Second Circuit Rule § 0.23

§ 0.23. Dispositions in Open Court or by Summary Order

The demands of an expanding caseload require the court

to be ever conscious of the need to utilize judicial time

effectively. Accordingly, in those cases in which decision

is unanimous and each judge of the panel believes that

no jurisprudential purpose would be served by a written

opinion, disposition will be made in open court or by sum-

mary order.

Where a decision is rendered from the bench, the court

may deliver a brief oral statement, the record of which

is available to counsel upon request and payment of tran-

scription charges. Where disposition is by summary order,

the court may append a brief written statement to that

order. Since these statements do not constitute formal

opinions of the court and are unreported and not uniformly

available to all parties, they shall not be cited or otherwise

used in unrelated cases before this or any other court.

Fifth Circuit Rule 21

Rule 21. Affirmance Without Opinion

When the court determines that any one or more of

the following circumstances exists and is dispositive of

a matter submitted to the court for decision: (1) that a

judgment of the district court is based on findings of fact

which are not clearly erroneous; (2) that the evidence

in support of a jury verdict is not insufficient; (3) that

the order of an administrative agency is supported by

12a

substantial evidence on the record as a whole; (4) that

no error of law appears; and the court also determines

that an opinion would have no precedential value, the

judgment or order may be affirmed or enforced without

opinion.

In such case, the court may in its discretion enter either

of the following orders: “Arrmmep. See Local Rule 21,”

or “Enrorcep. See Local Rule 21.”

ee ee ee ee