Eisler v. United States, No. 255

CourtUnited States Supreme Court
Writing for the CourtPER CURIAM; FRANKFURTER; MURPHY; JACKSON
Citation338 U.S. 189,93 L.Ed. 1897,69 S.Ct. 1453
Docket NumberNo. 255
Decision Date27 June 1949
PartiesEISLER v. UNITED STATES

338 U.S. 189
69 S.Ct. 1453
93 L.Ed. 1897
EISLER

v.

UNITED STATES.

No. 255.
Argued March 28, 1949.
Decided June 27, 1949.

Mr. David Rein, Washington, D.C., Mr. Abraham J. Isserman, Los Angeles, Cal., for petitioner.

Mr. Philip B. Perlman, Solicitor General, Washington, D.C., for respondent.

Page 190

PER CURIAM.

Petitioner's flight from the country after the grant of his petition for writ of certiorari, 335 U.S. 857, 69 S.Ct. 130, and after the submission of his cause on the merits necessitates a decision as to the disposition now to be made of this case. Since the petitioner by his own volition may have rendered moot any judgment on the merits, we must, as a matter of our own practice, decide whether the submission should be set aside the the writ of certiorari dismissed or whether we should postpone review indefinitely by ordering the case removed from the docket, pending the return of the fugitive.

Our practice, however, has been to order such cases to be removed from the docket. Smith v. United States, 94 U.S. 97, 24 L.Ed. 32; Bonahan v. State of Nebraska, 125 U.S. 692, 8 S.Ct. 1390, 31 L.Ed. 854. We adhere to those precedents. Accordingly after this term the cause will be left off the docket until a direction to the contrary shall issue.

While Mr. Justice BURTON has not participated in the consideration of the merits of this case, he has participated in this procedural action based upon the memorandum filed by the United States of America calling the attention of the Court to the petitioner's flight from justice.

Mr. Justice FRANKFURTER, with whom THE CHIEF JUSTICE joins, dissenting.

The Government has brought to the Court's attention the circumstances which, in its view, have deprived the Court of jurisdiction to adjudicate this case. Accordingly the Government, by way of suggestion, has moved the Court for its dismissal. The motion should be granted for the following reasons:

Page 191

1. Eisler was convicted for contempt of Congress by the United States District Court for the District of Columbia and invoked the jurisdiction of this Court by a petition for certiorari filed August 31, 1948, seeking the determination of questions some of which at least we regarded as important enough to warrant review. We accordingly granted his petition. 335 U.S. 857, 69 S.Ct. 130. The case was argued March 28, 1949, and awaited only final disposition when, on May 6, 1949, the petitioner fled the United States. On May 13, the Attorney General requested the Secretary of State to make application through the usual diplomatic channels for the return of Eisler to the United States. That application was made, it was resisted by Eisler, and on May 27 the English court with final authority in such matters dismissed it on the ground that the crime for which Eisler's extradition was sought—the making of false statements in an application for an exit permit—was not extraditable. Since then Eisler has formally repudiated the jurisdiction of this country and has been elected to political office in a foreign country. The Attorney General has abandoned all attempts to secure his return. The upshot is that the abstract questions brought before the Court by Eisler are no longer attached to any litigant. No matter remains before us as to which we could issue process.

2. Very early after the Republic was founded it was confronted by an emergency in which its very existence was threatened. Serious questions touching the legal power of the President to deal with the crisis arose, and Washington sought answers to these legal questions from this Court. Even under circumstances so compelling the first Chief Justice and his Associates had to deny President Washington's request for aid because the Constitution gave this Court no power to give answers to legal questions as such but merely the authority to decide them when a litigant was before the Court. See 3 Johnston, Correspondence and Public Papers of John Jay 486

Page 192

(1891); 10 Sparks, Writings of George Washington 542 (1840). That recognition of the limited power of this Court has been unquestioned ever since 1793. It has been the principle by which cases formally before the Court have again and again been dismissed as beyond its jurisdiction. The circumstances which have called forth application of the principle have varied greatly, but all the instances of its application illustrate and confirm the basic limitation under which this Court functions, namely, that it can entertain a case and decide it only if there is a litigant before it against whom the Court may enforce its decision.

3. If legal questions brought by a litigant are to remain here, the litigant must stay with them. When he withdraws himself from the power of the Court to enforce its judgment, he also withdraws the questions which he had submitted to the Court's adjudication. The questions brought by Eisler have evaporated so far as the Court's power to deal with them is concerned because the rights and obligations of a litigant no longer depend on their answer. The Court therefore lacks jurisdiction as it lacked jurisdiction...

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97 practice notes
  • Dorrough v. Estelle, No. 73-1881.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 29, 1974
    ...his appeal would be dismissed. Accord, United States v. Dawson, 6 Cir. 1965, 350 F.2d 396; see also Eisler v. United States, 1949, 338 U.S. 189, 69 S.Ct. 1453, 93 L.Ed. 1897 (removed from docket), 338 U.S. 883, 70 S.Ct. 181, 94 L.Ed. 542 (cert. dismissed); United States v. Tremont, 1 Cir. 1......
  • Polanski v. Superior Court, No. B217290.
    • United States
    • California Court of Appeals
    • December 21, 2009
    ...doctrine to Polanski's petition for writ of mandate and instead consider it on its merits. (See Eisler v. United States (1949) 338 U.S. 189, 196 [93 L.Ed. 1897, 69 S.Ct. 1453] (dis. opn. of Jackson, J.) (Eisler) ["I do not think we can run away from the case just because Eisler has."].) III......
  • Demery v. Arpaio, No. 03-15698.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 6, 2004
    ..."We can decide only cases or controversies. A moot case is not a `case' within the meaning of Article III." Eisler v. United States, 338 U.S. 189, 194, 69 S.Ct. 1453, 93 L.Ed. 1897 (1949). As to other claimed issues, remedies may have to be sought at the ballot box, the market place or by o......
  • Prevot, In re, Nos. 94-5854
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 7, 1995
    ...Brinlee v. Crisp, 608 F.2d 839, 857 (10th Cir.1979), cert. denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733 (1980). In Eisler v. U.S., 338 U.S. 189, 69 S.Ct. 1453, 93 L.Ed. 1897, cert. dismissed, 338 U.S. 883, 70 S.Ct. 181, 94 L.Ed. 542 (1949), the litigant appealed from a contempt of C......
  • Request a trial to view additional results
95 cases
  • Dorrough v. Estelle, No. 73-1881.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 29, 1974
    ...his appeal would be dismissed. Accord, United States v. Dawson, 6 Cir. 1965, 350 F.2d 396; see also Eisler v. United States, 1949, 338 U.S. 189, 69 S.Ct. 1453, 93 L.Ed. 1897 (removed from docket), 338 U.S. 883, 70 S.Ct. 181, 94 L.Ed. 542 (cert. dismissed); United States v. Tremont, 1 Cir. 1......
  • Polanski v. Superior Court, No. B217290.
    • United States
    • California Court of Appeals
    • December 21, 2009
    ...doctrine to Polanski's petition for writ of mandate and instead consider it on its merits. (See Eisler v. United States (1949) 338 U.S. 189, 196 [93 L.Ed. 1897, 69 S.Ct. 1453] (dis. opn. of Jackson, J.) (Eisler) ["I do not think we can run away from the case just because Eisler has."].) III......
  • Demery v. Arpaio, No. 03-15698.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 6, 2004
    ..."We can decide only cases or controversies. A moot case is not a `case' within the meaning of Article III." Eisler v. United States, 338 U.S. 189, 194, 69 S.Ct. 1453, 93 L.Ed. 1897 (1949). As to other claimed issues, remedies may have to be sought at the ballot box, the market place or by o......
  • Prevot, In re, Nos. 94-5854
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • September 7, 1995
    ...Brinlee v. Crisp, 608 F.2d 839, 857 (10th Cir.1979), cert. denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733 (1980). In Eisler v. U.S., 338 U.S. 189, 69 S.Ct. 1453, 93 L.Ed. 1897, cert. dismissed, 338 U.S. 883, 70 S.Ct. 181, 94 L.Ed. 542 (1949), the litigant appealed from a contempt of C......
  • Request a trial to view additional results
2 books & journal articles
  • ELIMINATING THE FUGITIVE DISENTITLEMENT DOCTRINE IN IMMIGRATION MATTERS.
    • United States
    • Notre Dame Law Review Vol. 97 Nbr. 3, March 2022
    • March 1, 2022
    ...Aliens, Due Process and "Community Ties": A Response to Martin, 44 U. Ptrr. L. REV. 237, 258 (1983). (358) Eisler v. United States, 338 U.S. 189, 194-95 (1949) (per curiam) (Murphy, J., (359) See id. at 195 (Jackson, J., dissenting) (expressing concern about dismissal where legal issues cou......
  • The Supreme Court as Protector of Civil Rights: Criminal Justice
    • United States
    • ANNALS of the American Academy of Political and Social Science, The Nbr. 275-1, May 1951
    • May 1, 1951
    ...(1949)—Vinson, C.J., Reed, Jackson, Burton, records or the giving of testimony [except in JJ., dissenting. the abortive Eisler case-338 U. S. 189 (1949), 114 United States v. Bryan, 339 U. S. 323 Murphy, Jackson, JJ., dissenting, ibid. 338 (1950). U. S. 883 (1949)]: Josephson v. Unite......

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