# Petition for Writ of Certiorari — Elof Hansson, Inc. v. United States (No. 380) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_1207%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1961 ## Text orchie COURT. eae gViPkrele °: ING, Clerk | ail is Tre Supreme Conrt of the United States Ocroper Teem, 1969 Kor Haxssos, INe.. Petitioner Usirep STATES. Respondent Petition for a Writ of Certiorari to the United States Court of Customs and Patent Appeals James R. Suanp 1108 - 16th Sireet, NW. Washington 6. D.C. & a e % a * * Customs Appeal No. 5052 Tue Usitep Srates, Appellant v. Mier TANsson, PNxe.. Appellee Said appeal came on to be heard before the court and after hearing the arguments of counsel on behalf of the Government and Robert (. Keck as amicur curiae and counsel for the importer the eause was taken under advisement by the court. Appellee granted three weeks to file supplemental brief and appellant) granted two Weeks to reply. B-2 UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS Thursday, Deeember 22, 1960 At a session of said court continued and held at the city of Washington, pursuant to adjournment, on this 22nd day of December, A. D. 1960. Present the Honorable Eugene Worley, Chief Judge, and the Honorables Giles S. Rich, I. Jack Martin, and Arthur M. Smith, Associate Judges, and the Honorable William Tf. Kirkpatrick, United States Senior Judge for the Eastern District of Pennsylvania. The court was opened for business in due form. * * * * x s e * Customs Appeal No. 5082 THe Unitep States, Appellant v. Evor Hansson, INc., Appellee Said appeal having heretofore been brought on to be heard before the eourt and due consideration thereon having been had, it is— ORDERED that the judgment of the United States Customs Court be, and the same is hereby, reversed, and said cause is remanded to said court for further proceedings consistent with the views expressed in the opinion of this court herein. 8.3 [Date of Decision: Dee. 22, 1960] UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS October Term 1960 Customs Appeal No. 50382 THe Unitep States, Appellant Vv. Erior Hansson, INe., Appellee SMITH, Judge. The single judge Customs Court in Reap. Dee. 9212 sustained the determination of the Acting Secretary of the Treasury (89 Treas. Dee. 197, TLD. 58567) made pursuant to the Antidumping Act of 1921 (19 U.S.C. 160) that “the industry manufacturing hardboard! in the United States is likely to be injured by reason of the importation into the United States of hardboard from Sweden, and that hardboard from Sweden is being sold and is likely to be sold in the United. States at less than its fair value.” The judement of the trial court was reversed by the Third Division, Appellate) Term (A.R.D. 114) and the present appeal was taken. The Appellate Term = stated the primary issue to be “whether the Adminjstrative Procedure Aet (5) USC § 1001, June 11, 1946, ch. 325; 60 Stat. 2837 as amended) applied to findings of dumping made under the shall separately state and cur rently publish in’ the Federal Register * * * sub stantive rules adopted as authorized by law * * *." We quote from the Report of the Tlouse of Repre- sentatives Committee on the Judiciary in its statement on the substance of the Adiministrative Procedure Act: “In the ‘rule making’ (that is, tlegislative’) fune tion it {the Administrative Procedure Net | provides that with certain exeeptions agencies must publish notice and at least permit interested parties to subi their views In writing for agency consideration be fore the issuance of general regulations (see. 4) funderseoring ours |. ULS. Code Congressional Sery lee, T9th Congress, Second Session, 146. po TE, at 1205. The report goes on to state that hearings need net he held on a proposed regulation * unless required by statute. *It will be noted that the only exception from the necessity of publication is where the persons subject to a particular rule are specifically named, and even then only if they are aleo either personally served or have actual notice. In the instant case, neither the statute fixing closed periods, Tithe 4% U.S.CLA. § 224, nor the proposed regulations extending the statutory closed period “(see Title 50 CFR §§119.4 and 102.3a, and Regulatory An- nouncement 34, Announcement No. 2) names the persons subject ihereto. Therefore, the exception clause to the requirement of publication in section 4(a) of the Administrative Procedure Ac as to persons with actual notice does not apply. 8“ *Agency’ means each authority * * * of the Government of the United States other than Congress, the courts, or the govern- ments of the vossessions, Territories, or the District of Columbia.” Title 5 U.S.C.A. §1001(a). ® While the Administrative Procedure Act uses the term “rule”, its definition encompasses the term “regulation”. See Title 5 C-12 But the important disclosure is that publication is a prerequisite to the issuance of a regulation. {1] The Congressional directive in regard to the pro- cedure to be foliowed in the issuance of agency regula- tions must be strietly complied with, since the issuance of regulations is in effect an exercise of delegated legis- lative power. In the case before us, neither notice that aA regulation extending the closed period on the Taku Inlet was to be issued, nor the proposed regulation itself, was published in the Federal Register. The failure to eompiy with either of the referred to provisions of the Administrative Procedure Act means that the procedure laid down by Congress for the implementation of agency rules and regulations has not been met. Appellee (United States) relies heavily on the language of section 7 of the Federal Register Act, Title 44 U.S.C.A. § 307, to support its contention that actual notice is a substitute for the requirement of publication, to-wit: “No document required under section 305(a) of this chapter to be published in the Federal Register shall be valid as against any person who has not had actual knowledge thereof until the duplicate originals or certified copies of the documents shall have been filed with the Division '® and a copy made available for public inspection as provided in section 302. of this chapter [seetion 2 of the Federal Register Act |; e**” (Underseoring ours] But section 7 does not imply, as appellee would have it, that the referred to doeument or rule would be valid without publication as to a person who has actual notice. For section 7 must be read in connection with section 2 U.S.C.A. §1001(c) and Report of the House of Representatives Committee on the Judiciary: ‘“*, * * general regulations (called ‘rules’ in the bill) * * *.” U. S. Code Congressional Service, 79th Congress, Second Session, 1946, p. 1195 at 1205. 10The National Archives Establishment of the Office of the Ad- ministrator of General Services. Title 44 U.S.C.A. §301; §1 Federal Register Act. C -13 Which it modifies. Section 2 sets up a requirement. in addition to publication, ie. it provides that an original and two duplicate originals ef a proposed rule must be filed with the Division. And section 7 provides that a proposed rule is not valid, although published, until those duplicate originals have been filed. An exception to. the requirement of filing the duplicate originals is made. in the circumstances where the interested party has had aciual notice, But no exception is made to the independ- ent requirement of publication, nor can section 7 of the Federal Register Act be inferred to intend such an ex- ception, particularly in view of the reiteration of the requirement of publication found in subsections 4(a) and (¢) of the Administrative Procedure Act, whieh is a later expression by Congress; Tithe 5 U.S.CLAL £ 1008(a) and (¢). [2] While the Administrative Procedure Act and the Federal Register Act are set up in terms of making in- formation available to the public, the Acts are more than Inere recording statutes whose function is solely to give constructive notice to persons who do not have actual notice of certain ageney rules." The Aets set up. the procedure which must be followed in order for ageney rulings to be given the foree of law. Unless the pre- seribed procedures are complied with, the ageney (or administrative) rule has not been legally issued, and consequently it is ineffective. The United States, in support of its argument. that actual notice obviates the need for publication in’ the “It is an elementary rule in the construction of recording laws that notice of an unrecorded instrument is equivalent to the recording of it, with respect to the person having such notice.” {Underscoring ours.] 45 Am. Jur. 527. “Constructive notice is the law’s substitute for actual notice, * * *. Constructive notice has sometimes been defined by statute as notice imputed to a person not having actual notice, and it has been said that an essential part of the presumption is that the person sought to be charged is in fact ignorant of the facts.” 39 Am. Jur. 236. C - 14 Federal Register, cites cases in which it has been held that publication gives constructive notice to all inter- ested parties that a rule has been issued.’* However, the holdings in those cases do not support the conclusion that a required definite procedure in the establishment of a criminal offense is waived by personal notice that the legislative body having jurisdiction to legislate had intended to create the offense. [3-6] Under our system of law, no act is punishable as a crime unless it is specifically condemned by the common law or by a statutory enactment of the legis- lature." The Congress has here made it an unlawful Offense against the United States to fish in “closed” waters, and has delegatéd the authority to determine Which waters shall be closed to the Seeretary of the Interior who, in turn, has subdelegated his- authority. Since Congress could delegate its authority, it eould also delegate the manner in which that authority is to be exercised, Therefore, the Administrative Procedure Act and the Federal Register Act must be read as a part of every Congressional delegation of authority, unless specifically excepted. Those Acts require publicaticn, irrespective of actual notice, as a prerequisite to the issuance of a regulation making certain acts criminal. If notice of a proposed rule is not published in’ the Federal Register at least-thirty days prior to its issuance, or if food cause is not found and published for the im- mediate issuance of a rule," the rule cannot be legally 12 Among the cited cases are: Federal Crop Insurance Corp. v. Merrill, 1947, 332 U.S. 380, 385, 68 S. Ct. 1, 92 L. Ed. 10; Flannagan v. United States, 9 Cir., 1944, 145 F.2d 740; Kempe v. United States, 8 Cir., 1945, 151 F.2d 680; and Borak v. Biddle, 1944, 78 U.S. App. D.C. 374, 141 F.2d 278, 280. See, also, Willapoint Oysters v. Ewing, 9 Cir., 1949, 174 F. 2d 676; United States v. Morton Salt Co., 1950, 338 U.S. 632, 70 S. Ct. 357, 94 L. Ed. 401. 15 22 C.J.S., Criminal Law, § 17. 144“The required publication or service of any substantive rule * * * shall be made not less than thirty days prior to the effective j C-15 issued; if the rule itself is not published, it follows that it has not been issued; and if a rule has not been issued, it has no foree as law. (7-9) Tf certain acts have not been made crimes by duly enacted law, the knowledge of their contemplated administrative proscription cannot subject. the informed person to criminal prosecution. While ignorance of the law ix no defense, it is conversely true that a law which has vot been duly enacted is not a law, and therefore a person who does not comply with its provisions cannot be guilty of any crime. [10} We hold that sinee neither the proposed regu- lation nor the regulation itself in the instant case were ever published, the regulation is not valid) whether or not appellant had actual notice of its contents. Whether or not actual notice might be required in addition to pub- lication in certain circumstances,” ‘we do not decide. It will be noted that on February 15, 1952. just three months prior to the instant extension of the closed period on the Taku Inlet to 6:00 P.M. Thursday, the Department of the Interior had made changes in the closed period on the Taku Inlet through a regulation duly published in the Federal Register. 17 F.R. 1478, 50 CLF.R. 119.5. The instant, further, extension .of the closed period on the Taku Inlet) should have been accomplished in’ the same way. The petition of the United States for rehearing is denied. date thereof except as otherwise provided by the agency upon good cause found and published with the rule.” Title 5 U.S.C.A. § 1003(c). 15 As the United States in its brief points out, there are times when the commercial fishing regulations are changed while com- mercial fishermen are at sea and when it _ be unjust to bind them with regulations published in Washington, D. C. j C - 16 Eastern Air Lines, INC., Appellant Y. Union Trust Company et al., Appellees Unrrep States or AMERICA, Appellant Vv. Union Trust Company et al., Appellees Nos, 11991, 11992, 12017, 12018 UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT Argued June 22, 1954 Decided Feb. &, 1955 Petition for Rehearing in Bane Denied in all Cases on April 15, 1955 Petition for Rehearing Denied by the Division which Heard the Case in Nos, 11991-2 on May 4, 1955 Petition for Rehearing Denied by the Division which Heard the Cases in Nos. 12017-8 on May 11, 1955 Before EDGERTON, WILBUR K. MILLER and FAHY, Cireuit Judges. | WILBUR K. MILLER, Circuit Judge. On the morning of November 1, 1949, an Eastern Air Lines DC-4 plane was flying from New York to Wash- ington, carrying fifty-one passengers and a crew of four. When it was on final approach for landing on runway 3 at the Washington National Airport and at an altitude C-17 of about 300 feet, the airliner was struck from above and behind by a P-38 military-type aireratt just purchased by the Bolivian Govermuent, whieh was being tested by a Bolivian military pilot, Erie Bridoux, who was its only occupant. The DC-4 was cut in two. The forward part fell in the Potomac River, the after portion on the Vir- ginia shore, All fifty-five persons aboard were killed. The P-388, badly damaged, of course, plunged into the river but somehow Brideux escaped from the cockpit. He was rescued and, despite serious injuries, survived. These suits were brought in the United States District Court for the Distriet of Columbia by the Union Trust Company and Melville W. Stuart as the executors of Ralph F. Miller and Mildred) ik. Miller, his wife, who Were passengers on the DC-4.0 Mastern Air Lines, Ine., and rie Bridoux were named as defendants in two of the actions and the United States was the defendant in the other two.!) Many similar suits filed on behalf of the estates of others who died in the fatal crash are pending under an agreement that the determination of liability ino these cases shall govern their disposition.? Although the two captioned cases against Bridoux and Kastern were tried to a jury, and the two against the Government to the court, by agreement of the parties all four actions were tried simultaneously, The jury found Bridoux not “lable,” but found against Eastern 1 Aubin & Lyons, t/a Universal Marine and Supply Company, were also named as defendants on the theory they owned or had some interest in the P-38. They were dismissed when it ap- peared that title to the plane had passed to the Bolivian Gov- ernment. 2It was also agreed that the determination of the situs of the accident (whether it occured over the Potomac River, which is in the District of Columbia, or over land in Virginia), made in these cases, shall be binding in all the others. The situs is important because a Virginia statute limits recovery for wrongful death to $15,000. In the District of Columbia there is no statu- tory limit. C-18 Air Lines in the sum of $50,000 for the estate of Ralph KF Miller and in the sum of $15,000 for the estate of his wife. In the Federal Tort Claims actions against the United States, the trial judge held the Government table to the estates and fixed the damages at $50,000 and $15,000) respectively, D.C) 118 F.Supp. 80. Eastern Air Lines and the United States appeal. I We first summarize the factual background which ts essential to an understanding of the reasons for reversal advanced by the appellants. The Washington National is a controlled airport; that is to say, from a_glass- enclosed observation platform ino a control tower stand- ing above and west of runway 3, employees of the Civil Aeronautics Administration observe arriving’ and depart- ‘ng planes and direct their movements by radio. An in- coming plane may not land and a departing plane may not take off until it receives tower permission to do so. The Administrator of Civil Aeronautics adopted, and published in the Federal Register October 14, 1949 [14 Fed. Reg. 6247-6250), a regulation for the administration of the Washington National, which is a civilian airport owned by the United States. Section 570.50(¢) of the regulation is as follows: “(¢) Aircraft landing or taking off shall conform to the air traffie pattern as published jointly in the Airman’s Guide by the Anacostia Naval Air Station, Bolling Field and the Washington National Airport.” The air trafic pattern referred to is a map of the airport and vicinity, with lines drawn over it intended to show the general flight patterns for taking off from and land- ing on the various runways. For landing on runway 3, it shows a southward pattern to a point south of Alex- andria (the downwind leg), then an east turn until over the Potomac River (the base leg), then northwardly over the river to a point a short distance northeast of Alex- C -19 andria, where it curves to the left over the Potomac Yards, and then a curve to the right inoa line for a straight approach te runway 3.0 The drawing itself Wits published im the Airman’s Guide Mareh 1. 1949) but was not published imo the Federal Register until August 7, W952. Jone after the aeeident here invelved. The regu. lation published Oetober 14. 1949, referred to but) did not include the traffie pattern. Over Eastern Air Lines* vehement objection, the trial court admitted the traffie pattern when it was offered in evidence by the appellees, and charged the jury that it was a binding Federal regulation, and that an unauthor- imed deviation therefram would be negligenee por ose. Bastern admittedly had knowledge of the pattern, Ono the morning of the aeeident Glenn Do Pigner, one of the seven traffic control operators who Were Working in the tower, was advised by the Hastern DC-4 at about 11shsS am. that it was over Beltsville, Maryland, bo miles northeast of the airpert, and was asking for landing instructions, ‘Tigner authorized it to enter a lett trathe pattern for landing on runway 2 and advised the pilot to contact the tower again from oa point closer to the airport. Tiener testified that in a second communication, When the Hastern plane was still north of the airport, he eleared it) to land on runway 0.4 Tle fixed the time of $The Administrator of Civil Acronautics was called by the court as a Witness on the meaning of the phrase “cleared to land”. He testified that when a plane in the traffic pattern of an air- port is “cleared to land,” the pilot of the plane is thereby au- thorized to commence his landing approach operation immediately ; in other words, when a pilot receives that clearance, wherever he may be in the traffic pattern, there is no plane ahead of him and he may make his turn at his discretion and consistently with the safe management of his plane and may come in and land at once on the runway which has been designated by the tower. That this is the only meaning of the phrase “cleared to land” was the unanimous testimony of all the certified air traffic con- trollers who testified on the subject. The trial judge instructed the jury as a matter of law that such was the meaning of the phrase “cleared to land.” C - 20 the clearance as approximately 11:44 a.m. The DC-4 eontinued its flight and entered the traffie pattern as it had been direeted to do. Tt had circled from the pattern and was on final approach for runway 38> when it) was struck by the Bolivian plane. The Bolivian P-38 had taken off from rinway 3 at 17:37 a.m. and therefore had been in the air only between nine and ten minutes when the collision occurred, Short- Iv after he had cleared the DC-4 to land, Tigner observed the P-38 at oa high altitude, circling Alexandria about seven miles south jof the airport, heading toward the east and starting:a turn to its left. Tigner was then talking to another plane. THe was informed by a tower eolleague the P-38 was requesting landing instructions. He saw it continuing its left turn and said by radio, “Bolivian 927, did) you request landing instructions?” Bridoux replied he had done so, whereupon Tigner told him he was cleared to enter the left traffie pattern for runway 3 and asked him to report on his downwind leg west of the airport. Tigner said when he next saw the P-38 it was about five miles southwest of the airport at about 4.000 feet heading northeastwardly with its gear down and in a steep and rapid deseent. At 11:45 a.m. he warned the DC-4 that the P-388 was in traffic. He said to the P-38, “Bolivian 927, make a 360 to vour left. You are No, 2 to land. Traffie is an Eastern DC-4, turning final ahead and below you.” Bridoux did not acknowledge the mes- sage and did not turn as directed. Tigner then called, “Bolivian 927, turn left, turn left. You are No. 2 to land, following an Eastern DC-4 turning final ahead and below you.” Bridoux did not acknowledge or comply. During these transmissions the DC-4 was on its base leg turning into final approach. When Tigner saw the P-88 was not complying with his instructions, he called the DC-4 and said, “Eastern 537, make an immediate C-21 left turn. Traffie is P-38 above and behind vou.” The DC-4, which had gone only about a quarter of a mile on final approach, responded -with a surge of power into a left turn. As it-did so, the Bolivian plane struck it. Bridoux testified that a minute after his take-off he began to have engine trouble. He reported that fact to the tower and requested landing instructions. Receiving: no answer, he repeated his request and the tower said, “Land 2 on Runway 3." which he understood to mean there was another plane ahead of him behind which he was to land. He testified he also understood this mes- sage to constitute a clearance to land rather than merely clearance to enter the traffic pattern, When he was about two miles west of the airport descending at a rate of 500 to 600 feet a minute, Bridoux said he saw a plane making a final approach for a land- ing either on runway 36 or 3, which was either a Beech- craft C-45 or a Lockheed C-60. He said, "* * * | realized that that was the reason IT was No. 2 to Jand.” He continued flying south until he was about five or six miles south of the field and then made a 90-degree left turn. As he did so, he observed the Lockheed or Beech- craft on the ground taxiing toward the buildings. He had not seen it actually land. Having been told by the tower he was No. 2 to. land on runway 3 and having seen, as he thought, that the plane which was No, 1 to land on that runway had al- ready done so and had taxied away, Bridoux concluded it was unnecessary for him to cheek with the tower to learn whether the plane ahead of him had landed. We reproduce in the margin * his testimony that he regarded *“Q. As a matter of fact, at that point you not only accepted that clearance which you told us was given, but you made another complete 360-degree turn around the airport; and then after you (Con’t. on following page) C - 22 the tower's statement, “You are No. 2 to land on runway 6) 3,° as absolute eclearanee to land after he had decided for himself, without further communication with or from the tower, that the No. 1 plane was out of the way. * (Con’d.): had done that, you started downwind leg five or six miles. A. Because I was No. 2 to land, sir. “Q. You at no time, Captain, asked the identity of the plane that was ahead of you, did you, Captain? A. No, sir. “Q. And you had no way of knowing, based upon information from the tower, that that plane was ahead of you, did you, Cap- tain? A. Unless I see. “Q. And you didn’t see it.