Nixon v. Richey, 75-1063
| Decision Date | 31 January 1975 |
| Docket Number | No. 75-1063,75-1063 |
| Citation | 513 F.2d 427,168 U.S.App.D.C. 169 |
| Parties | Richard NIXON, Petitioner, v. Hon. Charles R. RICHEY, United States District Court for the District ofColumbia, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Herbert J. Miller, Jr., Washington, D. C., argued the motion for petitioner. Raymond G. Larroca, William H. Jeffress, Jr., and R. Stan Mortenson, Washington, D. C., were on the motion for petitioner.
Irwin Goldbloom, Deputy Asst. Atty. Gen., argued for the Administrator of General Services and the United States of America. Carla A. Hills, Asst. Atty. Gen., Irving Jaffee, Deputy Asst. Atty. Gen., and Earl J. Silbert, U. S. Atty., were on the pleading filed in the cause by those parties.
Peter M. Kreindler, Counsel to the Sp. Prosecutor, Watergate Sp. Prosecution Force, for the Sp. Prosecutor as amicus curiae. Henry S. Ruth, Jr., Sp. Prosecutor, and Kenneth S. Geller, Asst. Sp. Prosecutor, were on the pleadings filed in the cause by the Sp. Prosecutor.
Robert E. Herzstein, Washington, D. C., argued for The Reporters Committee for the Freedom of the Press, and others, as amici curiae. Andrew S. Krulwich, Mark J. Spooner, and Leonard B. Simon, Washington, D. C., were on the pleadings filed in the cause by The Reporters Committee for the Freedom of the Press, and others.
William A. Dobrovir, Washington, D. C., argued for Jack Anderson as amicus curiae. Andra N. Oakes, Washington, D. C., was on the pleadings filed in the cause by Jack Anderson.
Leon Friedman, of the bar of the Court of Appeals of New York, pro hac vice by special leave of the Court, argued for Lillian Hellman, and others, as amici curiae. Melvin L. Wulf, New York City, was on the pleading filed in the cause by Lillian Hellman, and others.
Before ROBINSON and WILKEY, Circuit Judges.
On consideration of petitioner's petition for writ of mandamus, for expedited consideration thereof, and of the responses by the parties to the petition, it is
Ordered by the Court that the aforesaid petition is denied for the reasons and on the conditions stated in the attached Per Curiam opinion.
On December 20, 1974, petitioner brought suit in the District Court to enjoin enforcement of the Presidential Recordings and Materials Preservation Act, Pub.L. No. 93-526, 88 Stat. 1695 (1974). That Act undertakes to provide for governmental retention of the Presidential materials of petitioner, including the White House tape recordings. Simultaneously with the filing of the complaint, petitioner applied for the convening of a three-judge court pursuant to 28 U.S.C. § 2282 (1970). The respondent District Judge, to whom the case was assigned, has not yet ruled on this application.
When the Act was passed and when petitioner filed suit to enjoin its operation, three consolidated cases were pending before the District Judge, all of which addressed disposition of the Presidential materials. The Judge is about to rule on the merits of these three cases and thereby to resolve, at the least, issues as to ownership of the materials and privilege against their disclosure. It appears that at least these two issues are common to the consolidated cases and the suit to enjoin execution of the Act.
On January 28, 1975, petitioner filed in this court a petition for a writ of mandamus. The petition asks that we direct the District Judge to act immediately upon the pending application for a three-judge court, in accordance with 28 U.S.C. § 2284 (1970), and further direct advancement of the case to which it relates on the Judge's calendar in preference to the three consolidated cases as assertedly required by section 105(a) of the Recordings and Materials Act.
Section 2282 provides that a suit to enjoin enforcement of an act of Congress on grounds of federal unconstitutionality be heard and determined by a district court of three judges. An application for the convening of such a court is statutorily entitled to expeditious treatment: "(o)n the filing of the application, (the district judge) shall immediately notify the chief judge of the circuit . . .." 28 U.S.C. § 2284(1) (1970) (emphasis supplied). In Svejkovsky v. Tamm, 117 U.S.App.D.C. 114, 326 F.2d 657 (1963), we held that a district judge erred in staying proceedings in such a case pending the outcome of a Supreme Court case raising the same or similar issues, instead of expeditiously deciding whether to proceed to convene a three-judge court. We stated that "(i)f such a stay is deemed proper here, under § 2284 it should, in any event, be granted by the court of three judges, and not by the single judge who is required to initiate the three-judge proceedings." Id. at 115, 326 F.2d at 658. It is to be noted that in Svejkovsky the district judge delayed (1) in response to a motion by the Secretary of State, (2) awaiting illumination from the Supreme Court, not from his own pen, and (3) did so in a matter in which there was no statute on the substantive issue involved requiring priority treatment.
Beyond these considerations, the Recordings and Materials Act independently supports petitioner's claim that the District Judge should have acted weeks ago on the three-judge application. Section 105(a) of the Act confers upon the District Court for the District of Columbia "exclusive jurisdiction to hear challenges to the legal or constitutional validity of this title," and specifically provides that "(a)ny such challenge shall be treated by the court as a matter requiring immediate consideration and resolution . . .." (emphasis supplied) It is clear that the case for which petitioner sought the three-judge court was a "challenge to the legal or constitutional validity of" the Act. It is equally clear that, as an integral part of his "challenge," petitioner's application for such a court was "a matter requiring immediate consideration and resolution . . .." In these views, we need not consider contentions by one of the amici curiae that Sections 2282 and 2284 are inoperable in the situation at bar.
The District Judge's response in this court recites his diligence with regard to "the case" and his efforts to "move it to a conclusion" (emphasis supplied). The response informs us that It is apparent, however, from the context and from the 49 pages of docket sheets filed as exhibits, 46 of which deal with the consolidated cases and only three of which deal with the case in which the three-judge court is requested,...
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Nixon v. Administrator of General Services
...with a request for convention of a three-judge court, which request, after some delay, was ultimately granted. See Nixon v. Richey, 513 F.2d 427 (D.C. Cir. 1975) (per curiam), motion for reconsideration granted, 513 F.2d 430 (D.C. Cir. 1975) (per curiam).10 This court, by an order dated May......
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Nixon v. Administrator of General Services
...of the Office of the President. I dissent. 1. For proceedings prior to convention of the three-judge court, see Nixon v. Richey, 168 U.S.App.D.C. 169, 513 F.2d 427, on reconsideration 168 U.S.App.D.C. 172, 513 F.2d 430 (1975). See also Nixon v. Sampson, 389 F.Supp. 107 (DE 2. No opinion was......
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Nixon v. U.S., 92-5021
...to this court for a writ of mandamus compelling the District Judge to act immediately on the pending motions. See Nixon v. Richey, 513 F.2d 427 (D.C.Cir.1975) ("Richey I "). Although this court did not issue a formal writ, we concluded that the Act mandated immediate consideration of any fa......
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Nixon v. Richey
...will remain in effect until further direction by this court. An appropriate order will accompany this opinion. 1 Nixon v. Richey, --- U.S.App.D.C. ---, 513 F.2d 427 (1975).2 Pub.L. No. 93-526, 88 Stat. 1695 (1974).3 Presidential Recordings and Materials Preservation Act § 101, 88 Stat. 1695......