Brief for the Respondent in Opposition — Rakes v. United States

INDEX

Fc ces pg Ne RSENS AIOE ERLE TE TE 1

Jurisdiction... ence eearieon oN IO 1

Questions presented ..°...0...... 2... eC Ree TSCA 2

' Statute and regulations involved’. 8

Rc ERS ae eT ee

3

5

6

A. Petitioners Blumenthal ssh ae

B. Petitioner Paschal... mere ce

C. The decision of the court of appeals...............

pS eh WD Ten nD eee aay ane 7

RTE RC ae NRT PU RO Pe A TRC oes 15

Rp... nerictnincianppecennenenpnl distinc commis girls 16

oo

Cases:

Adle? Vv. Beara of Education, S42 U.S.-485............. 10

American Communications Association V. Douds,

339 U.S. 382 .. 7 i ne 15 -

Beilan v. Board of Education, 357 US _ 399 . 238

Borrow, Morton, 27 F.C.C. 783. __... : pete nd 7,9,13

‘Borrow v. Federal Communications Commission,

285 F.2d 666, certiorari denied, 364 U.S. 892. 6,9, 15

Cohen v./Hurley, 366 U.S. 117. ..6.... 0 fs 14

Communist Party v. Subversive Activities Control

Board, 367 U.S. 1..:....:.----... NK NCE Sys 1 SEO ATES 8,11

Cronan V. Federal Communications Commission, .

285 F.2d 288, certiorari denied, 366 U.S. 904 . 6

Didriksen v. Federal Communications Commis.

sidw, 254 F.2d 354... omy 9

Dispatch, Inc., 13 Pike and Fischer, RR. “237. ae -\ 8

Garner V. Los Angeles Board, ogg S. 716... ov \ ae

Kaufman v. Hurwitz, 176 F.2d 210... oe 14

Kimm Vv. Rosenberg, 363 U.S. 405.0000... Ad

Konigsberg v. State Bar of California, 353. US.

eo

tf

Cases—Continued - Page

Lafferty, Travis,- 23 FCC. Tete To

Lerner V. Casey, 357 U.S. 468..-_..... ., 10

Nelson v. County of Los Angeles, 362 U. S. L 14

ch, Orloff v. Willoughby, 345 U.S. 83.._... RED note .

Speiser v. Randgll, 357 U.S. 513_.....--.-...,------ 15

Constitution, statute and rules: 6 8

First Amendment ........ Pen ‘eles PER a eres . 8, u

I EE 8, 12,13

Communications Act of 1934, 48 Stat. 1064, as

amended, 47 U.S.C. 151 et seq.: aa hee

Se ee erent: sce - Q-

Sec. See ELI AEM Saf See icamadeas 8, 11,13

Federal- Communications Commission Rules, 47

CFR:

Bee. 1.7 AR) -....---2n00-B——-voannene anensnacongnneneneceneatonnee 9,16

Bi. | RR AN Roy ee ee reer ton 16

ES OL ETRE |

ee 0; ee SP SLID SP ees wae ‘5

= ES Raa enes. Mumcurnriarce teen REE.) |

; " Miscellaneous : e

S.Rep. No. $338, 85th Cones 2d Sess... idegint 12

<> ° ‘ °

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a the Siyireme Cont uf the WMuited States

Oc TOBE R TERM, 1962 e

No. 1026 = z

STANLEY BLUMENTHAL» ET AL., PETITIONERS

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FEDERAL COMMUNIC ATIONS ComMISSION AND

UNITED STATES OF AMERICA

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>

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

o

BRIEF FOR THE* RESPONDENTS IN OPPOSITION

\

OPINION BELOW -*

The opinion of the court of Appeals (Pet. 17-24)

has not yet been reported,

JURISDICTION

’ The judgment of the court of appeals was entered

on March 28, 1963 (Ppt. 24). The petition for a

writ of certiorari was filed'on April 15; 1963. The

af (1) ,

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; } aw : “ . °

jurisdiction gf this Court is invoked under 28 U.S.C.

1254 and 47°U.S.C. 402(j). | © m

é

QUESTIONS PRESENTED

v

_—- The Federal Communications Commission, jrelim-|

inary to. passing upon petitioners’ applications fox

radio operator licenses, asked them whether they

were or had ever been members of the Communist

Party. An affirmative answer to the question, in

whole or in part, would not itself have disqualified

the applicant from receiving a license; he .would

still have been entitled to a hearing (with the right

to confrontation and cross-cxamination} to detey mine |

whether, on the basis of all the facts, grant of the

license would be in the public interest. The peti-

tioners stated that they were not then members of

the Communist Party, but declined to answerwheth-

er.they had ever been members—two of them basing

their refusal to ‘answer on the Fifth Amendment.

The Commission dismissed the applications without >

considering the merits because of pétitioners’ failure

’ to answer the questions completely. .-The following

questions are presented: = * :

1. Whether. the Commission, to aid it in determin-

ing whether the grant of an. application for a “cae

operator’ - license would serve the public interest,

“may require the applicant to furnish information

about his past membership in the Communist Party.

2. Whether petitioners’ rights under the First and’

Fif Amendments, were violated by dismissal of

their license applications for failure to furnish such

information. ai |

re od

\<

a ”

STATUTESAND REGULATIONS INVOLVED )

: i ° ee :

Pertinent provisions of the Communications’. Act

of 1934 (48 Stat. 1064, ‘as amended, 47 U.S.C. 151,

et seq.) are set forth in the petition (Pet. 3-4). The

relevant portions of the Commission’s Rules and

Regulations are set forth in the Appendix, infra,

pp. 16-17. ;

=e / STATEMENT

A. Petitioners Blumenthal and Jones. 7 .

Petitioners Blumenthal and Jones filéd with the

Federal Communications Commission, in February

wand March, 1962, applications for first-class radio

, telephone and second-class reglio telegraph operator

licenses (J.A. 12a-15a).' ,Their applications were

accompanied by a questionnaire * containing the fol-

*

.

1“. A.” refers to the joint appendix in the court of ap-

peals.

?On December 1, 1961,. the Commissien “had dismissed

Jones’ and Blumenthal’s applications for renewal of opera-

tor’s licenses after a hearing on the propriety of their re-

fusal to answer questions relating to their me amber ship in-

the Communist Party or groups advocating the Vielent over-

throw of the United States. Both petitioners relied on

grounds of constitutional privilege and Jack of Commission

authority in refusing to answer. The Commission held that

the lack of this information precluded it from determining

whether the grant of the applications Would be in the public

interest, and dismissed ‘the applications without any determi-

mation on the merits. Stanley Blumenthal, cteal. 31 F.C.

1003, 1006, Petitioners appealed to the Court of Appeals for

‘the District of Columbia Circuit. Blumenthal vy. Federal Com-

munications Commission, Case =16800 (CLA. D.C.). Thrtt

case was dismissed on March 15, 1962, after oo had

_

Fa

4

lowing questions: (J.A. 4a-5a):

1. Are you now or have you ever been a mem-

ys of the. Communist Party?

. Are you now or have you ever been a mem-

es ‘of any organization which advocates . or

teaches the overthrow of theeGovernment of the

United States, or of any. political subdivision

thereof, by for ce or violen nee?

Blumenthal answered the first question as divs

(J.A. 4a):

I am not a member of the Communist Party and

was not at the time I applied for a renewal of my

second-class radiotelegraph operator’s license in

1958. As to the period prior to that date, I

decline to answer in accordance with the privi-

leges granted to me under tRe Fifth Amendment

to the Constitution of the United States. >

Petitioner Jones answered the first question (J.A.

a e :

I am not a ini of the Commiinist Party and

was not at the time I was first requested’ to

execute gi questionnaire by the Commission.

Both petitioners answ ered the second question in the

negative (J. A. 4a-5a). In addition, each appended

a statement challenging the authority of the Com-

mission to ask the questions (ibid.)

abandoned their renewal applications and had filed new Ap-

plications with an attached questionnaire which anticipated

thé Commission's request for this information.

é x ae

questiors as follows (J.A. 6a):

5

The eeiaies wrote both petitioners, requesting

that they completely answer the questionnaire, .and

pointing out that the applications would be subject

to dismiss®l pursuant to Section 1.71(d) of the Com- -

mission’s Rules, 47 CER 1.71(d), if they failed to |

respond (J.A. 12a-15a).’ Petitioners’ declined to

complete their answers and requested a hearing (J.A.

18a). The Commission denied the request on the

ground that both petitioners had been afforded a full

hearing on the legality of their refusals to answer

the same questions in connection swith their earlier

applications for renewal of their ‘operators’ permits

(see note 2, supra) (J.A. 18a-19a). The Commis-

sion granted the petitioners additional time to re-

spond (J.A. T9a), and, upon .their failure to do so,

dismissed their applications (J.A. Ta-9a). :

?

B. Petitioner Paschal F .

Paschal applied for renewal of his pdvinced ama®

teur station and opérator licensé (J.A. 16a). The

Commission asked Pascha! to supply atiditional in-|

formation and requested that he rspond to the same

questions asked of Blumenthal and, Jones (ibid.).

Sse

Paschal. challenged the statutory authority of “the

Commission to ask the questions and answered both

I am not a member of the Communist Party.

In view of the manner in which existing legisia-

* Section 1.71(d) provi#®s in pertinent part that failure to

respond to a request for additional information will be cause

for dismissal of an application. The dismissal is without

' prejudice where thé application has not been designated for

hearing. .

2

6

tion has been utilized and the attitude of various

governmental agencies in prostcuting and perse-

cuting by defacto fiat, I must utilize-my_ rig}

under the Fifth Amendment of the Constitution

to refuse to give comfert or ai¢ to any inquisi-

‘torial activity regarding any past or present

.political actWity.

The C ommission again asked Paschal to answer the:

questions. It set forth its authority to require such

_ information, and explained that membership in the

Communist Party would not necessarily disqualify

him, but was one of many pertinent facts and circum-

rem which it would take into account (J.A. 20a~

22a). Paschal did not reply and the Commission

dismissed his application (J.A. 10a-lla).

C. The Decision of the Court of Appeals

_The court of appeals (Judges Fahy and Wright,

Chief Judge Bazelon concurring) affirmed (Pet. 17-

23). The court held that its earlier decisions in

Borrow v. Federal Communications Commission, 285

F. 2d 666, certiorari denied, 364 U.S, 892, and Cro-

nan vv. Federal Communications Commission, 285 F.

2d. 288, certiorari denied, 366 U.S. 904, established

that the Commission had authority to seek the infor-

mation, and that dismissal: of the applications for

failure to supply it did not violate petitioners’ First

Amendment rights. ‘The court ruled that although

petitioners were justified in relying on the Fifth

Amendment in ‘refusing to answer the question, the

Commission was justified in dismissing the applica-

tions: hecause of petitioners’ failure toe furnish rele-

vant information. It stated (Pet. 22):

Cue

Sd

: . 7

‘The agency cannot be reqired to act without

the information. To hold otherwise would carry

the privilege beyond its purpose. While its in-

vocation may not be considered ground for dis-

qualification, for the privilege is available to

the innocent as well as to the non-innocent, the

lack of relevant infermation which follows in

the wake of its asscrtion leaves a gap in data

which the applicant can supply. The etfect: is

the same whether the refusal to supply it. is

based on the Fifth Amendment or on an tn-

founded claim under the Fourteenth Amend-

ment. [footnote omittcN} — . er \

\ \

ARGUMENT

The petition presents only the narrow issue wheth-

er the Eederal Communications Commission may re

quire-an applicant for a radio Operator’s license to

furnish information concerning his past membership

-in the Communist Party. Under, the Commission's

regulations and practice the fact{ that an applicant

had been a Party member would rot itself disqualify

him from receiving 2 license, buf would be merely

one factor which the Commission would consider in

determining whether he is qualified and. whether

grant of the application would be in the publie—in-

terest. Travis Letierty, 23 F.C.C. 761, 765-766, If

any petitioner had answered the question affirma-

tively, he would have had the right to a full hearing,

with confrontation and cross-examination, to develop:

all pertinent facts to,show that a grant of a license

to him would/ serve the public interest. Lafferty,

supra, 23 F.C. at 770: Yorten Borrow, 27 F.C.

~_

8.

783, 789, 790.: But since petitioners did not supply

the information, there is no occasion to consider the

weight which the Commission gnay give to past mem-

bership in the Communist Party in passing upon

applications for radio operators’ licenses. Petition-

ers must establish that the Commission had no au-

thérity to obtain the information in question for

purposes of determining the underlying public in-

terest question. We submit \that the court of ap-

peals correctly held that the Commission’ was justi-

fied in dismissing the applications because of peti-

tioners’ refusal to answer the question, and that such

dismissals did not violate their* rights under the

First or Fifth Amendments.’

1. The Communications Act plainly authorizes the

Commission to require applicants for radio operators’

licenses to furnish information about Communist

Party membership. Section 303(1) authorizes the

Commission to “prescribe the qualifications of sta-

ticn operators” and to issue licenses to such ‘‘qualified”

‘In hearings of this nature, in order that the applicant

will be “completely and thoroughly linformed as to the evi-

dentiary showing” wherch he will be required to meet, the

Commission places on its counsel the burden of going for-

ward with the evidence against the applicant, and requires

the applicant “to refute specifically only those matters on

which probative evidence was already introduced” by Com-

mission counsel. Dispatch, Ine., 13 Pike & Fischer, R.R. 237,

244.

Since petitioner Sones did not rely ‘on the Fifth Amend-

ment in retusing to answer the questions, he cannot now

rely on that Amendment as a justification for his refusal to

answer. Communist Party Vv. Subversive Activities Control

Board, 267 U.S. 1, #07.

e

Hf)

applicants ‘as public convenience, interest or neces-

sity requires.” The Commission has provided by reg-

ulation that an applicant must be found “qualified

in respect to citizenship, charaeter, and physical con-

dition” (Section 1.71(a), Rules of the. Federal Com-

munications Commission, 47 CFR 1.71(a)). When

read in the light of the congressional purposes in

the Communications Act of furthering the “national

defense” and “promoting safety of life and property”

(47 U.S.C. 151), these provisions fully support the

Commission’s position that Communist Party mem-

bership (both past and present) iof a radio operator

is a relevant factor to consider in determining wheth-

er grant of a particular application would serve the

public interest. |

Commission-licensed radio operators occupy a stra-

tegic position in relation to the vital channels of radio

communication and have opportunity to take action

seriously detrimental to the public welfare. See Did-

riksen vy. Federal Communications Commission, 254

F. 2d 354, 356 (C.A. D.C.); Morton Borrow, 27

F.C.C. 783, 787-788. As the court below. ex-

plained in the Borrow case, which upheld the Com-

mission’s authority to réquire information as to past

or present membership in the Communist Party or in

an organization advocating or ‘teaching the overthrow

of the government by force or violence (285 F. 2d

666, 668-669) :

Radio. beams are the operational essence of

quick modern communication and of the con-

trol of modern weapons. Not only the power to

10

use these electronic devices but the,,power to

inteyfere with waves being used by others should,

it might properly seem to the Commission, be

lodged in those whose loyalty to the United

States is made to appear.

The court there also stated (id., p. 679):

Membership in the Party vel non is a proper in-‘

troductory query in this area; the answer may

dispose of the subject, of it may necessitate ex-.

planation which, in turn, may or may not be

acceptable.

Because of the crucial role which radio operators

thus occupy in sensitive areas involving national de-

fense, the present case is well within the principles

applied in Beilan vy. Board of Education, 357 U.S.

399, 405; Adler v. Board of Education, 342 U.S. 485,

493; and Garner v. Los Angeles Board, 341 U.S.

716, 720, which upheld the relevancy of Communist

Party membership in determining the. “competency”

or “fitness” of a teacher (Beilan and Adler) or the

“reliability” of a subway operator.’ Lerner v. Casey,

357 U.S. 468, 473-475.

Past Party membeyship is also a pertinent factor

for the Commission to consider in determining wheth-

er an applicant is qualified and whether grant of his

application would serve the public interest. Its sig-

nificance, of course, depends upon all the facts of a

particular case—when the applicant joined the Party,

in what circumstances, how long'he remained a mem-

ber, why and when he quit, how familiar he was

with and how committed he was to the Party’s prin-

~

: Bs

ciples, and his present attitude toward the Party

and its objectives. Past conduct with respect to

Party membership “provides the illuminating .con-

text within which the implications of present conduct

may be known” (Communist Party v. Subversive Ac-

tivities Control Board, 367 U.S. 1, 69). If, for ex-

ample, a particular applicant had quit the Party

just before filing his application, that fact would

‘certainly be relevant for the Commission to consider

in passing upon the application.

; Once it is recognized that information about past

/Party membership is pertinent to. the Commission’s

decision on licensing applications, it necessarily fol-

lows that the Commission may require an applicant

> to submit such information and, if he fails to do so,

may dismiss the applieation without determining its”

merits. In a particular case the Commission, upon

obtaining all the facts, may conclude that despite past

membership the grant of a_ license would be in the

public interest. But the Commission, before it makes

such a determination, is certainly entitled to obtain

all information which bears upon the question.

Petitioners err in contending (Pet. 9-11) that the

Commission and the Congress have recognized that

the Commission cannot consider Communist Party

membership in radio operator licensing proceedings.

Indeed, the Commission took the contrary position

before Congress in 1958, and Congress apparently

acquiesced in that view. Section 303(1) was amend-

ed in 1958 to authorize the Commission to waive

the statutory. requirement, that station operatgts must

be citizens, for non-citizens holding United States or

12

foreign aircraft. pilot certificates. The House had

proposed to require the Commission to find “that se-

curity considerations have been satisfied” before waiv-.

ing the citizenship requirements. The Commission

opposed this provision as unnecessary, on the ground

‘that

The Commission has previously interpreted pub-

lic interest as encompassing authority to examine

the character qualifications of persons seeking

radio operators licenses and, where information «

is brought to our attention which might show

& that the issuance -of _license would jeopard-

ize the security of the United States, as au-

thorizing this agency to refuse to issue such li-

cense. * * * The present statute requiring a

license be issued only upon a finding that its

issuance is in the public interest is sufficient to

permit this Commission to deny license applica-

tions in those. cases where security questions

are involved, without requiring it to undertake

the responsibility of making af

with respect to the security qualifications of

each applicant which comes before it. [S. Rep.

No. 2338, 85th Cong., 2d Sess., p. 5.]

The Senate Committee, rejected the proposal, stating

that its action did not relieve the Commission of its

responsibility to “weigh the character qualifications”

of applicants for radio operator licenses (id., p. 3).°

' + 2, The fact that the refusal of: two of the peti-

tioners to furnish the relevant information was rested

on a Fifth Amendment claim of privilege does not»

invalidate the Commission’s dismissal of their appli-

cations for failure to supply the information. For

.

rmative findings ~

‘\43

. . . A

once it is established that the information scught is

relevant to the Commission's exercise of its statutory

duties under Section 303(1) and within the Commis-

sion’s authority to obtain, it is immateria! whether.

the refusal to supply it was based ‘on a Fifth Amend-

ment claim or some other ground. \As the court of

appeals pointed out (Pet. 22), whatever the reason

on which such refusal is based, it results in a “lack

of relevant information * * * which the Commis-

sion is authorized to seek.”. The Commission wais

‘therefore justified in dismissing the application abr

failure to supply necessary .information,

In the present case, Unlike Konigeberg v. Slat

Bar of California, 353 eS. 252, on which petitioners ”

rely (Pet. 14), no ma “yi was drawn from

the Fifth Amendment claim, and the Commission

did not decide 'the merits of petitioners’ applications.

See Mortgn Borrow, 27° F.C.C. 785, 789, 790. It

dismissed the applications solely because petitioners

had failed to supply information which it needed in,

‘The Commission there made clear that the “failure te

reply is not utilized as * * * the basis of an adverse finding,

but is of significance insofar as it prevents the Commission

from making an affirmative finding that a grant of the ap-

plication weuld be in the public interest as required by the

act.” Morton Borrow, 27 F.C.C. 783, 7&7, 7x9, T90. It fur-

ther explained (id., at 789) that where the Commission has

doubts as to an applicant’s qualifications, “it would be re-

miss in its duty if it failed to conduct such investigatory

proceeding as its facilities permit before affirmatively con-

cluding, as required by the act, that a grant of the applica-

tion woufd be in the public interest” and that a “failure to

respond to the Commission's interrogation deprives the Com-

mission of facts on which to base the necessary”. statutory

conclusion.

= &

a

of privilege., The Court

14

order tg determine whether their grant would be in

the public interest “et. Orloff v. Willoughby, 345

U.S. .83, where the Cotxt upheld the action of the

President in denying an Army commission to a doc-

tor, otherwise qualified, because he refused to an-

swer questions about his membership in the Com-

munist Party and other opganizations uffder a claim

Rated (p. 91) that. the

President “hefore certifying his/confidence in an offi- -

cer and appointing him to a commissioned rank, has

the\r ‘ight to learn. whatever ffcts the President thinks

‘may affect his fitness.” See also Kimin y. Rosenberg, ~.

363 U.S. 405: ef. Nelson v. County of Los Angeles,

362 U.S. 1; Cohen v. Hurley, 366 U.S. 117.

While it. is of course-true, as petitioners point out

(Pet. 13), that their claim of the privilege subjected

them to a disabilitye not suffered by applicants who

answer the question, this is no ground for denying

the Commission the right to obtain information which

it requires in the performance of its licensing function.

There are many situatians in which a valid invocation

of«the privilege may subject the person claiming it

to a subsequent? disadvantage; this fact, however,

‘does not preclide asking the question against which

the pr iVilege is invoked, See,.c.g., the Orloff and

Kinm eases, supra; see also Kaufman vy. Hurwits,

176 F. 2d 210 (C.A. 4) (discharge in bankruptey

denied to person who, under claim of privilege, re-)

fused 6 answer. questions material to the statutory

grounds for discharge)..

3.. Petitioners also contend (Pet. 2, 12) that the

dismissal of their applications vielated their First

: Me : a

es LJ

‘

.

we

a

af

Vv

Amendment rights. This peint was fully considered

and rejected in: Borrow (234 F. 20 at 670), and the

arguments made in our brief in opposition there are

equally applicable here. See our brief in opposition

in*Borrow, No. 403, 1960 Term, pp. 19-20; secre also,

American Cagnimunications Association Vv. Douds, 339 °°

U.S. 382, 391, 112; Speiser v. Randall, 357 U.S. 513,

527; Beilan vy. Board of Education, 357 U.S. 399, 405.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted. .

“ARCHIBALD COX,

Solicitor General,

= LEE LOEVINGER, .

ratte Assistant Attorney General.

LIONEL KESTENBAUM,

q . MICHAEL |. MILLER,

* Attorneys.

MAX D. PAGLIN,

General Counsel,

DANIEL R. ONLBAUM, oar

9 Associate General Counsel,

Rvutu V. REEL,

Attorney, “

Federal Communications Commission. &

May 1963.

© >| 16

¢ APPENDIX

Gt oe 2 Se

: —

$1.71 Procedure with respect to commercial

radio operator license applications, (a) Upon

acceptance for filing of en application for a new

commeycial operator license, an examinatign is

conducted, where required,- by the field office

with which the application is filed in accomance

with, Part 13 of this chapter. If applicant

passes the examination and is found qualified

in respect to citizenship, character, and physiczl

condition, the license willbe issued. Where

doubts as to @itizenship, character, or physical.

condition arise, the application is referred to the

Commission's Inspection and Examination Divi-

sion, Field Engineering and Monitcring Bureau,

Washington, D.C., for consideration.” If it ap-

pears that further information is required to

determine the applicant's qualifications or that

a grant of the application will not’serve the pub-

lic interest, the applicant will be notified in writ-

in® and given an opportunity to furnish such

written showings as the Commission may@request

- and as the applicant may desire to submit. If,

from the information furnished, it pes not ap-

pear that the applicant is qualified or chat the

publle interest would be served by a grant of

the application, the applicant will be gdvised

thereof in writing and given the opportunity to

request, within the period of time to be specified

in such writing, that the application be #t)for

hearing.. In case of failure timely to or

such hearing, the application will be deaiG.

(b) Where an examination is not required,

_the application will be handled with respect to

‘ “pf

|

|

a2

° 17

other -matters in accordance with the procedure

in paragraph (a) of this section. °

' (e) Applications for renewal of license after

acceptance for filing are handled in accordance

‘with the procedure contained in paragraph (a)

of this section, except that no examination is

required unless the circumstances as set forth

in $13.28 of this chapter_exist. in which case’ a

renewal examination will be required.

(d) Failure to prosecute an application, or

failure to respond to official correspondence’ or

request for additional information, will be cause

for dismissal. Such dismissal will be without,

prejudice where an application has not yet been

designated for hearing; such dismissal may be

made with,prejudict after an application has

~ been designajed for hearing.

* ” - ”

$ 1.506 Dismissal of applications. (a) Any: ¥

application may, upon written request signed by

the applicant or his attorney, be dismissed with-

out prejudice as a matter of right prior to the

designation of such application for hearing.

(b)- Failure to prosecuté an application, or

failure to respond to official correspondence or

request for additional information, will be cause

for dismissal. Such dismissal will’ be without

prejudice where an application has not yet been

designated for a hearing; such dismissal may be

with prejudice after an application has been

‘designated for a hearing.

‘(c) Requests to dismiss an application with-

out prejudice after it has been designated for

hearing will be considered only upon written

petition properly served upon all patties of ree-

we

18 |

ord and will be granted only for good cause

shown. Such petition must be accompanied by

the affidavit of a person with knowledge of the

facts as to whether or not consideration has

been promised to or received by.jpetitioner, di-

rectly or indirectly, in connection with the filing

of such petition for dismissal of the application.

—~