Booth v. Fletcher

• Decision Date: 19 December 1938
• Docket Number: No. 6950.,6950.
• Parties: BOOTH et al. v. FLETCHER.
• Court: U.S. Court of Appeals — District of Columbia Circuit

69 App. DC 351, 101 F.2d 676 (1938)

BOOTH et al. v. FLETCHER.

No. 6950.

United States Court of Appeals for the District of Columbia.

Decided December 19, 1938.

Motion to Expunge Opinion Denied January 1, 1939.

Leslie C. Garnett and H. L. Underwood, both of Washington, D. C., for appellants.

Edmond C. Fletcher, of Washington, D. C., pro se.

Before STEPHENS, MILLER and VINSON, Associate Justices.

MILLER, Associate Justice.

Appellee Fletcher declared against appellants, in the court below, alleging that they conspired to injure him; that they acted in pursuance of the alleged conspiracy to procure, and did procure, his disbarment as an attorney in the Supreme Court of the District of Columbia (now the District Court of the United States for the District of Columbia), and in the Court of Claims of the United States; and that as a result thereof he suffered great damage. The declaration alleged that Appellant Booth was Chief Justice of the Court of Claims of the United States, Appellants Williams, Whaley, Green and Littleton were judges of the same court; Appellants Wheat and Adkins were Chief Justice and Justice, respectively, of the District Court of the United States for the District of Columbia; but that each appellant named above was sued in his individual right. The declaration further alleged that Appellant Kleinschmidt was the assistant clerk in the Court of Claims; that Appellant Coflin was the assistant clerk in the Supreme Court of the District of Columbia. The declaration also revealed on its face that Appellants Craighill and Laws were members of the Committee on Grievances of the Supreme Court of the District of Columbia; and that Appellant Hart was Chief Clerk of the Court of Claims of the United States. The declaration does not reveal the identity of Appellant Edward K. Campbell, but we take judicial notice of the fact that he was, at the time of initiation of the present proceedings, the retired Chief Justice of the Court of Claims of the United States.

The specific acts complained of, and which appellee alleges appellants conspired to commit, were in substance as follows: (1) Appellant Campbell procured a copy of a report made by appellee to George S. Graham, Chairman of the Judiciary Committee of the House of Representatives, which report suggested, in the alternative, the impeachment of Appellant Booth or the abolition of the Court of Claims, and Appellant Campbell submitted the same to Appellants Booth, Williams, Whaley, Green and Littleton; (2) the Court of Claims promulgated a rule for the disbarment of members of its Bar; (3) Appellants Laws, Craighill and Myers delivered to Appellant Wheat a complaint against appellee, charging that appellee was guilty of malpractice, unethical and unprofessional conduct rendering him unfit to be a member of the bar, and recommending that the charges contained in the complaint be filed with the clerk of the court and that appellee be tried thereon. This complaint was set out in the declaration and showed on its face that it was titled "In the Supreme Court of the District of Columbia holding a general term. Disbarment No." and that it was signed "Committee on Grievances of the Supreme Court of the District of Columbia, G. Bowdoin Craighill, Bolitha J. Laws, Members of said Committee"; (4) Appellant Wheat signed an order ?“” which was also set out in the declaration ?“” which order was titled "In the Supreme Court of the District of Columbia holding a general term Disbarment No. 51," and which directed that the charges submitted to the court by its Committee on Grievances be filed with the clerk of the court, that appellee be served with a copy of the charges and of the order, that he answer the charges and show cause why he should not be suspended or removed from his office as a member of the bar; (5) Appellant Kleinschmidt requested Appellant Coflin to notify the Court of Claims when appellee was finally disbarred from practice in the Supreme Court of the District of Columbia; (6) Appellant Adkins, at the request of Appellants Laws, Craighill and Myers signed an order ?“” also set out in the declaration ?“” which order was titled, "In the Supreme Court of the District of Columbia, holding a general term, Disbarment No. 51" and which ordered the disbarment of appellee; (7) Appellant Coflin struck the name of appellee from the roll of attorneys kept by the Supreme Court of the District of Columbia and mailed a copy of the order of disbarment to the Court of Claims of the United States; (8) Appellants Covington, McCarron and Miller reported, while in the office of Appellant Green, that appellee had been disbarred as an attorney by the Supreme Court of the District of Columbia and recommended that appellee should be disbarred by the Court of Claims of the United States; (9) Appellants Green, Littleton, Williams and Whaley signed an order, a copy of which was delivered by Appellant Green to Appellant Booth. This order was also set out in the declaration, and was titled, "In the matter of proceedings for the disbarment of Edmond C. Fletcher"; it ordered the disbarment of appellee as an attorney of the United States Court of Claims and was signed by Appellants Green, Littleton, Williams and Whaley as judges of that court; (10) Appellant Kleinschmidt struck appellee's name from the roll of attorneys of the Court of Claims; (11) Appellant Hart signed and mailed to appellee a letter informing appellee that there was enclosed therewith a certified copy of the order of disbarment. This letter was set out in the declaration; it was written on the letterhead of the Clerk of the Court of Claims of the United States; it contained at its top the name and title of Appellant Hart, Chief Clerk, and the name and title of Appellant Kleinschmidt, Assistant Clerk, and was signed by Appellant Hart as Chief Clerk.

This court has judicial knowledge of the fact that the name of the Supreme Court of the District of Columbia, before which the proceeding in Disbarment No. 51 was commenced, and in which the order of disbarment of Appellee Fletcher was made, was changed by Act of Congress¹ to the District Court of the United States for the District of Columbia. It has judicial knowledge also of the fact that an appeal was taken to this court by appellee from the said order,² and that this court, in its opinion entered therein, affirmed the order of disbarment, saying of Appellee Fletcher: "His conduct deserves condemnation both in morals and law."³

Appellants demurred to the declaration ?“” Wheat and Adkins, by their attorney Frank F. Nesbit, and the other appellants by James W. Morris, Assistant Attorney General, W. S. Ward, Attorney, Department of Justice, Leslie C. Garnett, United States Attorney, and H. L. Underwood, Assistant United States Attorney. Appellee moved for an order requiring Morris, Ward, Garnett and Underwood to produce and file their warrant of attorney and for an order striking from the files the demurrer filed by them. The record fails to reveal that any hearing was held upon these motions, but thereafter the lower court, in an order dated February 12, 1937, stated that upon consideration thereof, "it is ordered that said motions be, and the same are hereby each severally granted." We allowed a special appeal from this order.

The challenge which was made by appellee in this case was directly of the power and authority of the Attorney General himself, as well as of his representatives. We take judicial notice of the fact that Attorneys Morris, Ward, Garnett and Underwood were officers of the Department of Justice.⁴ The lower court was also charged with judicial knowledge of that fact.⁵ The appearance which they made by way of demurrer disclosed that they appeared in that capacity.

It is not even a doubtful question whether the appearance of these officers was proper in the present case. The law provides (R.S. ?? 359, 367, 5 U.S.C.A. ?? 309, 316, 2 F.C.A. Title 5, ?? 309, 316):

"? 359. * * * the Attorney General may, whenever he deems it for the interest of the United States, either in person conduct and argue any case in any court of the United States in which the United States is interested, or may direct the Solicitor General or any officer of the Department of Justice to do so."

"? 367. The Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in any suit pending in any of the courts of the United States, or in the courts of any State, or to attend to any other interest of the United States."

In his affidavit appellee alleged "that this suit was brought by him against the said defendants in their individual capacity, and its subject-matter is of no concern to the Government of the United States; * * *" But the record reveals on its face the incorrectness of this contention. As to some of the appellants, the declaration did not even allege that they were sued in their individual capacities, and as to all of them, except Appellant Campbell, the record clearly reveals that they were sued on account of acts performed in their official capacities and for no other reason. By sustaining the demurrer interposed by Wheat and Adkins, who were joined with appellants as defendants in the declaration, the lower court indicated that it was aware of this fact. As the order striking the demurrer of appellants did not discriminate between them, it is obvious that if the appearance was proper as to any one of them the order was wrong.

The purpose of the rule which exempts public officers from the harassment of private suits for damages on account of the performance of their public duties, is, secondarily, for their protection, in order that its primary objective may be secured, i. e., a fearless administration of the law. The rationale of the rule was in its inception, and to a large extent has been in its application, that...