Opposition Brief — Whitehall Tenants Corp. v. Whitehall Realty Co.

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No. 97-1671 Sumreme Couri, U.S,

Ge i Bn

Suprene Court of the United States

a m .

October Term, 1997

WHITEHALL TENANTS CORP.; HORACE BULLARD,; ITA

BULLARD; FRED GRUNBERG; JOSEPH JABLON; MARY

JABLON; SUSAN ISAACS; PHILIP POLLACK; WALTER

SPIER; ROSEMARIE SPIER; LUDWIG BRAVMANN,

individually and as representatives of the class of non-sponsor

shareholders of shares in Whitehall Tenants Corp.,

Petitioners,

VS.

WHITEHALL REALTY CO., a partnership; SYLVIA

OLNICK, as Executrix of the Estate of Robert S. Olnick;

RICHARD LANE; PAUL MILSTEIN,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

KEVIN L. SMITH

Counsel of Record

MICHELE L. JACOBSON

JASON WOLKOVE

STROOCK & STROOCK

& LAVAN LLP

Attorneys for Respondents

180 Maiden Lane

New York, New York 10038

(212) 806-5400

_— (800) 274-3321 + (800) 359-6859 gots

A DIVISION OF COUNSEL PRESS ervices, Inc.

i

QUESTIONS PRESENTED

1. Whether a case may be validly adjudicated by a panel

of two circuit judges under circumstances where one of the

three judges originally assigned to hear the appeal recused

himself immediately after oral argument?

2. Whether a case may be validly adjudicated by a panel

of two circuit judges under circumstances where one of the two

judges deciding the case heard a tape-recording of the oral

argument in lieu of personal attendance?

il

PARTIES TO THE PROCEEDING

The parties to the proceeding are contained in the caption

of the case. Disclosure pursuant to Rule 29.6 is inapplicable, as

none of the respondents has a parent or subsidiary company.

iil

TABLE OF CONTENTS

Page

Questions Presented ......-----++sererrrtrrtrt i

Parties to the Proceeding ......-----++srrrrrrrttte ii

Ws OP CMOS ow io ons nse cece secs e set ereeses® ili

Wis ol CUMIN oo ioc cence cose csoneesacessrs iil

Statement of the Case ......---eeeeerrrrrererrtt l

Reasons for Denying the Writ ....-.----++eeerrets l

| The Petition Should Be Denied Because The

Court Below Acted In Compliance With 28

U.S.C. § 46 And Second Circuit Local Rule

OE. Re et So die dale l

II. The Exercise Of This Court’s Supervisory Power

Is Not Warranted. ......----eeeeeeerrtreee 7

NR hace eee corer rece s eens seer es 9

TABLE OF CITATIONS

Cases Cited:

Aeron Marine Shipping Co., et al v. United States, 26

C0 Oe BE CIS) vn ka oc tactics sccenesrcerseee® 4

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986) .. 3

Ayrshire Collieries Corp. v. United States, 331 U.S. 132,

67 S. Ct. 1168, 91 L. Ed. 1391 (1947) .....----- 2

se

iv

Contents

Bruner v. United States, 343 U.S. 112 (1952) .......

FCC v. WJR, the Goodwill Station, Inc., 337 U.S. 265

(PE 6 855 he hc eae ek eee ae

In re Bongiorno, 694 F.2d 917 (2d Cir. 1982) .......

McNabb y. United States, 318 U.S. 322 (1943) ......

Moses H. Cone Hospital v. Mercury Construction Corp.,

OO Roads BS LOE oko hs hs oo a kee eh ee

Murray v. National Broadcasting Co., Inc., 35 F.3d 45

CB RR Se iy Win aves cae wees pon estcs

Sacher v. United States, 343 U.S. 1 (1952) .........

Thermtron Products v. Hermansdorfer, 423 U.S. 336

BF ee Mn Sars keer parent. ng Pome pe gee

Thiel v. Southern Pacific Co., 328 U.S. 217 (1946)

Tobin v. Ramey, 206 F.2d 505 (Sth Cir. 1953) .......

United States v. Allied Stevedoring Corp., 241 F.2d 925

CRE Sa, SUED. aac keds bees il pee eebwel ck

United States v. Marines, 535 F.2d 552 (10th Cir. 1976)

Se O82 RS. 2 6.6.8 8.9 6 2 E524 @ © 6 6.8 MR OO .S SSO eS OO eS OOK OS

a2 6 oO 2: 0 2°@:6. 6:8: 2:28 BO O'S 4 2 6 SS. OO. 6 SD B.S SO SOS OO OLS

i

2,4

Contents

Page

Statutes Cited:

(gk! Sag fee errr er ee ha ae

, Bie Vad eS eee ror eee 6

28 USC, BAGEB) occ eke ccc ent rceecescssas ee

2B U.S.C. 6 ABC) 0. cece cswecvesceseceesenee’ 1, 4, 6, 7

Rules Cited:

Federal Rule of Appellate Procedure 34 ........---- 4,9

Second Circuit Local Rule § 0.14 a Ve oag 5,6

Second Circuit’s Local Rule § 0.14(a) .....-----+++: 1,4

Second Circuit’s Local Rule § 0.14(b) ......---+--- 2

Second Circuit Local Rule 34 .......----eeeeeeeee 4

Supreme Court Rule 10(a) ...---+--seese reer eres 7

Other Authorities Cited:

; Roe Ss Se oY Seeemeere errr rs Core eS eee 4

S. Rep. 275, 97th Cong., Ist Sess. 19 (1981) ....... 6

125 Cong. Rec. S12, 143 (daily ed. Sept. 7, 1979)... 6

l

STATEMENT OF THE CASE

Respondent adopts the statement of the facts and procedural

history contained in the decision of the Court of Appeals for

the Second Circuit below. App. 27a-28a.

REASONS FOR DENYING THE WRIT

The petition’s fact-bound claim that the court below violated

28 U.S.C. § 46(d) and the Second Circuit’s Local Rule § 0.14(a)

does not warrant review by this Court. The decision below,

which held that the Second Circuit neither violated the quorum

requirement under 28 U.S.C. § 46(d), nor its own Local Rule,

was plainly correct. No conflict among the circuits is alleged.

The Second Circuit has not, moreover, “so far departed from

the accepted and usual course of judicial proceedings” so as to

warrant the exercise of this Court’s supervisory power under

Rule 10(a).

I.

THE PETITION SHOULD BE DENIED BECAUSE

THE COURT BELOW ACTED IN COMPLIANCE WITH

28 U.S.C. § 46 AND SECOND CIRCUIT LOCAL RULE

§ 0.14.

1. The Second Circuit’s Summary Order was issued in

compliance with the quorum requirements of 28 U.S.C. § 46(d)

and its Local Rule § 0.14. While courts of appeal may hear and

determine cases and controversies by panels consisting of three

judges, the authority of a two-judge panel to adjudicate a matter

in the absence of a third judge originally designated to serve

with a panel is well-established. Under 28 U.S.C. § 46(d), “[a]

majority of the number of judges authorized to constitute a

court or panel thereof, as provided in paragraph (c), shall

2

constitute a quorum.” See Ayrshire Collieries Corp. v. United

States, 331 U.S. 132, 138, 67 S. Ct. 1168, 1171, 91 L. Ed.

1391 (1947) (comparing two-judge quorum provision for panel

of court of appeals with absence of such provision for statutory

three-judge district court); United States v. Allied Stevedoring

Corp., 241 F.2d 925, 927 (2d Cir. 1957) (finding that where

one of three judges of Court of Appeals hearing case dies after

expressing his concurrence in disposition adopted by majority,

remaining two judges constituted a quorum which could dispose

of case); Tobin v. Ramey, 206 F.2d 505, 507 (Sth Cir. 1953)

(finding that “(t]he word quorum as therein used [in subsection

46(d)] means such a number of the members of the court as

may legally transact judicial business”). Local Rule § 0.14

implemented by the Second Circuit Court of Appeals, moreover,

provides that two-judge panels may act in the absence of an

originally designated third judge. See 2d Cir. R. § 0.14(b)

(remaining two judges may act if they are in agreement and

neither requests designation of third judge); Murray v. National

Broadcasting Co., Inc., 35 F.3d 45, 47-48 (2d Cir. 1994)

(holding that two-judge panel may act where recusal occurs

just prior to oral argument).

A quorum existed at each stage in which the court below

conducted judicial business. The matter was assigned to a panel

of three judges consisting of Hon. Guido Calabresi, Hon. Jon

O. Newman, and Hon. Frank X. Altimari. At oral argument

there was a two-judge quorum consisting of Judges Calabresi

and Newman; the Summary Order was issued by a two-judge

quorum consisting of Judges Newman and Altimari; and, finally,

the court’s decision on the petition for rehearing was decided

by a unanimous three-judge panel consisting of Judges Newman

and Altimari and Chief Judge Ralph K. Winter.

Petitioners’ contention that no quorum existed at oral

argument because Judge Calabresi recused himself afterwards

See ee

|

3

warrants little consideration, as it is based on the misguided

notion that the subsequent recusal should work, retroactively,

to invalidate the quorum that existed at the time oral argument

was held. Other than a citation to the definition of “quorum”

contained in Black’s Law Dictionary, petitioners offer no

authority for this proposition.

2. Petitioners’ contention that the Summary Order rendered

by the two-judge panel, after Judge Calabresi’s recusal, is invalid

because he participated in questioning during oral argument,

prior to his recusal, is likewise without basis in law. The

circumstance that persuaded Judge Calabresi to recuse himself

— that one of the parties is the father of his wife’s close friend

— was not discovered by Judge Calabresi until after oral

argument. App. 28a. Due to the nature of the disqualification,

which involved no interest — pecuniary or otherwise — in the

outcome of the litigation, and its late discovery, Judge Calabresi’s

participation in oral argument could not have influenced the

outcome of the case.

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986), the

only authority cited by petitioners, is inapposite. In Lavoie,

one of the justices of the Alabama Supreme Court personally

had another lawsuit pending involving the same legal issues.

475 U.S. 813, 825 (1986). The interested justice not only cast

the deciding vote, but authored the court’s opinion as well,

which had the clear and immediate effect of enhancing the legal

status and settlement value of his own case. Id. at 822-25. Upon

reviewing those facts, this Court held that the interested justice’s

participation in the case violated the petitioner’s due process

rights. Jd. Unlike the interested justice in Lavoie, Judge Calabresi

was not aware of any grounds for his disqualification — which,

in any event, were not pecuniary in nature — until after oral

argument.

4

3. The quorum provisions contained in 28 U.S.C. § 46(d),

and in Second Circuit Local Rule § 0.14(a), are not violated

when one of the two judges rendering the decision heard a tape

recording of the oral argument in lieu of personal attendance.

First, there is no constitutional right to present oral argument.

See, e.g., FCC v. WJR, the Goodwill Station, Inc., 337 U.S.

265, 275-76 (1949); United States v. Marines, 535 F.2d 552,

556 (10th Cir. 1976). Second, Rule 34 of the Federal Rules of

Appellate Procedure permits the appellate court, in its discretion,

to decline to hear oral argument of an appeal. Fed. R. App. P.

34.' Accordingly, it follows that oral argument need not be

attended by the entire appellate panel as a precursor to the judicial

determination of a case. See, e.g., Tobin, 206 F.2d at 507. In

Tobin, the Fifth Circuit denied a petition for rehearing in a case

where the opinion of the court was written by a judge who was

absent during oral argument, holding that, as long as a quorum,

pursuant to 28 U.S.C. § 46(d), was attained at the hearing, it

was not necessary that the judge writing the opinion was one

of the two judges who were present. /d.; see also Aeron Marine

Shipping Co., et al v. United States, 26 Cl. Ct. 946 (1992)

(referring to 28 U.S.C. § 46 by analogy in determination that

49 C.F.R. § 1.67 does not mandate that all three members of

the Maritime Subsidy Board hear the evidence so long as two

members of the board concur).

Petitioners were not denied oral argument. Judges Calabresi

and Newman were present during oral argument, constituting a

quorum, and Judge Altimari, who was absent during the

argument, listened to petitioners’ advocacy on audiotape. App.

27a-28a. Petitioners’ argument, distilled to its essence, is that

Judge Altimari was not able to ask questions of their counsel of

record. A judge’s presence at oral argument, however, does not

1. Thus, should this Court grant certiorari, the Second Circuit,

on remand, could decline to hear oral argument under Rule 34 of the

Federal Rules of Appellate Procedure and its Local Rule 34.

5

guarantee that he or she will question counsel. As the court

below noted, “[t]he judge’s absence, at most, deprives the

lawyers of the ‘opportunity’ to have the judge ask them

questions, surely not a protected right.” App. 32a. Certainly,

this is not an issue which warrants further consideration by this

Court.

4. The Second Circuit’s Local Rule § 0.14 does not conflict

with 28 U.S.C. § 46(b). Even assuming, arguendo, that the

two provisions did conflict, any such conflict would be

immaterial in this instance. There is thus no cause for this Court’s

review.

Petitioners’ premise that 28 U.S.C. § 46(b) mandates a panel

of three judges absent death, disability or an emergency certified

by the chief judge of the circuit court is faulty.* That statute

provides in pertinent part:

2. Petitioners’ reliance on Murray v. National Broadcasting Co.,

supra, is misplaced. In Murray, the petitioner objected to the court's

determination because one of the three judges initially assigned to

hear the appeal recused himself before oral argument. As a result,

the determination of the appeal was made by the two remaining

judges. The court denied petitioner’s request for rehearing on the

grounds that “the legislative history [of 28 U.S.C. § 46(b)) makes

clear that the statute was not intended to preclude disposition by a

panel of two judges in the event that one member . . . becomes unable

to participate.” Jd. at 47. The court in Murray clarified the intention

of the statute by stating that the statute requires that “in the first

instance, all cases would be assigned to a panel of at least three

judges” but after that “first instance” there is no requirement that

three judges actually hear and/or determine the outcome of the case.

The court noted that local rules, such as Rule § 0.14, are “obviously

intended to permit the Court to conduct its business expeditiously

despite the unanticipated unavailability of one member of a three-

judge panel.” Jd .

6

In each circuit the court may authorize the hearing

and determination of cases and controversies by

separate panels, each consisting of three judges, at

least a majority of whom shall be judges of that

court, unless such judges cannot sit because recused

or disqualified, or unless the chief judge of that court

certifies that there is an emergency including, but

not limited to, the unavailability of a judge of the

court because of illness. . . . (emphasis added)

28 U.S.C. § 46(b). Nothing in this provision limits the instances

in which a panel of two judges may hear an appeal. The “unless”

clause which precedes the recusal, disqualification and

emergency exceptions permits an exception to the requirement

that a majority of the three-judge panel must be “judges of that

court” — it does not mandate a three-judge panel. See S. Rep.

275, 97th Cong., Ist Sess. 19 (1981); 125 Cong. Rec. $12,

143 (daily ed. Sept. 7, 1979); Charles Clark, Chief Judge’s

Order Declaring an Emergency Under 28 U.S.C. § 46(b) (1991),

28 U.S.C.A. § 46, Historical and Statutory Notes (West 1993)

(applying exception due to backlog of cases in the Fifth Circuit);

see also In re Bongiorno, 694 F.2d 917, 918 n.1 (2d Cir. 1982)

(examining the legislative history of 28 U.S.C. § 46(b) and

finding that Congress’ purpose in enacting the rule was to prevent

the instability and unpredictability in the law of a circuit that

could result if many panels were composed principally of judges

from “outside” the circuit). An interpretation of 28 U.S.C.

§ 46(b) which would mandate three-judge panels would be at

odds with 28 U.S.C. § 46(d), which authorizes two judges to

function as a quorum.

Local Rule § 0.14, which permits a judge to be relieved

from a panel upon his or her request (among other reasons), is

not inconsistent with 28 U.S.C. § 46(b). In any event, any

alleged inconsistency is not at issue in this case. Recusal of a

7

judge is expressly stated as an exception to the composition of

a panel under 28 U.S.C. § 46(b). Judge Calabresi’s late-

discovered disqualification is, by petitioner’s own concession,

a recognized exception under 28 U.S.C. § 46(b). Thus, a two-

judge panel would be permitted even under petitioner's analysis.

Petitioners mischaracterize the record, moreover, when they

argue that Judge Altimari “withdrew” from the panel before

oral argument. Judge Altimari was merely absent from the oral

argument; he never requested to be relieved from the panel, nor

was he.

Based upon the aforementioned analysis, this Court need

not review the decision below because the Second Circuit

properly issued the Summary Order in accordance with 28

U.S.C. § 46. That statute clearly does not require that the hearing

and determination be made by all three judges of an appellate

panel. A determination is valid as long as, pursuant to 28 U.S.C.

§ 46(d), the decision is made by a majority of the judges

constituting a quorum. Here, a majority of the judges — two

_— issued the Summary Order. A quorum was had, and the

Summary Order was properly issued. No review by this Court

is warranted.

Il.

THE EXERCISE OF THIS COURT’S SUPERVISORY

POWER IS NOT WARRANTED.

1. Although Rule 10(a) provides that the exercise of the

Court’s supervisory power is a proper ground for review on a

writ of certiorari, this ground is used sparingly, and is most

often used where there exists an important or difficult issue of

federal practice and procedure. See, e.g., Moses H. Cone

Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983)

(reviewing the use of abstention doctrines); Zahn v. International

Paper Co., 414 U.S. 291 (1973) (reviewing the jurisdictional

8

amount in class actions); Thermtron Products v. Hermansdorfer,

423 U.S. 336 (1976) (reviewing the power of a district court to

deny removal from a state court because the district court's

docket was too heavy); Bruner v. United States, 343 U.S. 112

(1952) (examining the jurisdiction of federal district courts);

Sacher v. United States, 343 U.S. 1 (1952) (reviewing the scope

of federal contempt powers); Thiel v. Southern Pacific Co., 328

U.S. 217, 225 (1946) (reviewing the proper establishment of

federal jury panels); McNabb vy. United States, 318 U.S. 322,

341 (1943) (exercising supervisory authority over the

administration of criminal justice in federal courts to review

rules of evidence as applied in federal criminal prosecution).

The issue in the case at hand, which is based upon the

confluence of peculiar events, simply does not merit attention

by this Court. There is no conflict among the circuits. Despite

petitioners’ dire predictions, nothing in the decision of the court

below permits the regular assignment of cases to a panel of two

judges or authorizes oral argument to be had before a tape

recorder in lieu of a quorum of judges. Simply put, it was

coincidental that, in the same case, Judge Altimari could not

attend oral argument and Judge Calabresi had to recuse himself

as a result of a late-discovered disqualification. This was not a

deliberate arrangement, nor can it be characterized as a “newly

created procedure.” Accordingly, this Court should deny the

petition.

2. This Court, moreover, should not waste its limited

judicial resources in granting a writ of certiorari in this matter.

Petitioners’ only remedy, should this Court reverse the court

below, would be a remand for a new oral argument. As discussed

supra, oral argument is not required. The Second Circuit panel

to which this action would be remanded — which could be the

very same three-judge panel which denied the petition for a

rehearing, two of whom issued the Summary Order — could

9

determine that oral argument is unnecessary under Rule 34 of

the Federal Rules of Appellate Procedure and Second Circuit

Local Rule 34. Furthermore, inasmuch as the Second Circuit

designated its original decision (App. la-10a) as a “Summary

Order,” which may not be cited as precedential authority to the

Second Circuit or any other court, only petitioners are affected

by the original decision of the court below, and that court's

denial of their petition for a rehearing. The decisions below,

which were fact-based, will not have any broad or national

impact and do not justify review by this Court.

CONCLUSION

For the reasons set forth above, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

KEVIN L. SMITH

Counsel of Record

MICHELE L. JACOBSON

JASON WOLKOVE

STROOCK & STROOCK

& LAVAN LLP

Attorneys for Respondents

180 Maiden Lane

New York, New York 10038

(212) 806-5400