Goldstein v. Cox, No. 66

CourtUnited States Supreme Court
Writing for the CourtMARSHALL
PartiesAnghel GOLDSTEIN aka Andrei Pietraru et al., Appellants, v. Joseph A. COX et al
Decision Date26 January 1970
Docket NumberNo. 66

396 U.S. 471
90 S.Ct. 671
24 L.Ed.2d 663
Anghel GOLDSTEIN aka Andrei Pietraru et al., Appellants,

v.

Joseph A. COX et al.

No. 66.
Argued Nov. 17, 1969.
Decided Jan. 26, 1970.

John R. Vintilla, Cleveland, Ohio, for appellants.

Page 472

Daniel M. Cohen, New York City, for appellees.

Mr. Justice MARSHALL delivered the opinion of the Court.

Appellants are beneficiaries of New York decedents' estates who live in Romania. Their shares of these estates have not been distributed to them, but have been paid into court for their benefit under § 2218 of the New York Surrogate's Court Procedure Act. Section 2218 authorizes the surrogate to order an alien's share of a New York estate paid into court when it appears that the alien 'would not have the benefit or use or control of the money or other property' constituting the share.1

In 1966, appellants filed a complaint in the United States District Court for the Southern District of New York, challenging what is now § 2218 on the grounds that it denied them due process and equal protection, that it unconstitutionally intruded upon the Federal Government's conduct of foreign relations, and that it conflicted

Page 473

with federal regulations permitting the payment of federal funds to persons in Romania. Appellants prayed for both temporary and permanent injunctive relief against further operation of the statute, and therefore requested the impaneling of a three-judge court. A single district judge declined to request a three-judge court on the ground that the constitutional questions raised were frivolous, and the Court of Appeals for the Second Circuit affirmed. This Court granted certiorari, vacated the judgment, and remanded the case to the Court of Appeals for further consideration in the light of Zschernig v. Miller, 389 U.S. 429, 88 S.Ct. 664, 19 L.Ed.2d 683, decided the same day. 389 U.S. 581, 88 S.Ct. 694, 19 L.Ed.2d 781 (1968). On remand, the Court of Appeals reversed the original order of the District Court, and remanded the case for consideration by a three-judge court. 391 F.2d 586 (C.A.2d Cir. 1968).

Page 474

Appellants then moved for summary judgment, urging that § 2218 was unconstitutional, either on its face or as applied, under the principles of Zschernig v. Miller, supra. In their motion they requested 'the relief demanded in the complaint.' They accompanied their motion with an affidavit, largely consisting of a memorandum of law arguing that the application of § 2218 by the New York courts ran afoul of Zschernig.

Appellees, surrogates of several New York counties, opposed the motion for summary judgment and further requested that the action be dismissed. In their accompanying affidavit, they argued that § 2218 was constitutional on its face and that there was at least a triable issue of fact whether it was being constitutionally applied.

The District Court denied summary judgment, but did not dismiss the action. 299 F.Supp. 1389 (D.C.S.D.N.Y.1968). In its opinion it held that § 2218 was not unconstitutional on its face under Zschernig, and that the only reported post-Zschernig construction of the statute, Matter of Leikind, 22 N.Y.2d 346, 292 N.Y.S.2d 681, 239 N.E.2d 550 (1968), app. docketed, No. 68, O.T. 1969, did not show unconstitutional application.

From the order denying summary judgment, appellants took an appeal to this Court, claiming that we had jurisdiction under 28 U.S.C. § 1253, which provides:

'Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.'

Appellees did not oppose jurisdiction, but rather filed a motion to affirm. We noted probable jurisdiction, 394

Page 475

U.S. 996, 89 S.Ct. 1593, 22 L.Ed.2d 774 (1969), and received briefs and heard argument confined to the merits. Further examination of the case since oral argument has for the first time raised the question of our jurisdiction, and we have concluded that we lack jurisdiction of the appeal.

A preliminary question is whether the District Court's order denying summary judgment to a plaintiff who has requested injunctive relief is 'an order * * * denying * * * an * * * injunction' within the meaning of § 1253. In construing the analogous provision giving the courts of appeals jurisdiction to hear appeals from interlocutory orders granting or denying injunctions, 28 U.S.C. § 1292(a)(1), this Court has ruled that a denial of summary judgment is not an appealable order denying an injunction, at least where the denial is based upon the existence of a triable issue of fact. Switzerland Cheese Ass'n. v. Horne's Market, 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966). 2 However we need not decide whether the same treatment should be given to denials of summary judgment under § 1253, for we conclude that the only interlocutory orders that we have power to review under that provision are orders granting or denying preliminary injunctions. Since in our view

Page 476

the District Court here decided no question of preliminary injunctive relief, we cannot review is order.

Section 1253, along with the other provisions concerning three-judge district courts, 28 U.S.C. §§ 2281—2284 (a collectivity hereinafter referred to as the Three-Judge Court Act), derives from § 266 of the Judicial Code of 1911, 36 Stat. 1162, which in turn derived from § 17 of the Mann-Elkins Act of 1910, 36 Stat. 557. As originally enacted, the Three-Judge Court Act required that no interlocutory injunction restraining the operation of any state statute on constitutional grounds could be issued, except by a three-judge court, and provided that '(a)n appeal may be taken directly to the Supreme Court of the United States from the order granting or denying * * * an interlocutory injunction in such case.' 36 Stat. 557. The Act grew out of the public furor over what was felt to be the abuse by federal district courts of their injunctive powers in cases involving state economic and social legislation. While broad and radical proposals were made to deal with the problem, including proposals to deprive the federal courts of all jurisdiction to enjoin state officers, Congress compromised on a provision that would deal with what was felt to be the worst abuse—the issuance of temporary restraining orders and preliminary injunctions against state statutes, either ex parte or merely upon affidavits, and subject to limited and ineffective appellate review. See Phillips v. United States, 312 U.S. 246, 250, 61 S.Ct. 480, 483, 85 L.Ed. 800 (1941); Hutcheson, A Case for Three Judges, 47 Harv.L.Rev. 795, 803—810 (1934); Note, The Three-Judge District Court and Appellate Review, 49 Va.L.Rev. 538, 539—543 (1963).

Until 1925, the Act required a three-judge court only on application for an interlocutory (or, as we would say, preliminary) injunction. In that year, the Act was amended to carry the three-judge...

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39 practice notes
  • Walters v. National Association of Radiation Survivors, No. 84-571
    • United States
    • United States Supreme Court
    • June 28, 1985
    ...from interlocutory decrees, just as the original statute provided for appeal from decisions in "any proceedings." Cf. Goldstein v. Cox, 396 U.S. 471, 476, 90 S.Ct. 671, 674, 24 L.Ed.2d 663 (1970) (28 U.S.C. § 1253 authorizes direct appeals from preliminary injunctions issued by three-judge ......
  • 43 712 Withrow v. Larkin 8212 1573, No. 73
    • United States
    • United States Supreme Court
    • April 16, 1975
    ...of the constitutional challenge to the statutes. See Brown v. Chote, 411 U.S. 452, 93 S.Ct. 1732, 36 L.Ed.2d 420 (1973); Goldstein v. Cox, 396 U.S. 471, 90 S.Ct. 671, 24 L.Ed.2d 663 (1970); Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310, 60 S.Ct. 517, 84 L.Ed. 774 (1940). 13. After th......
  • Johnson v. New York State Education Department, No. 890
    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 13, 1971
    ...480, 483, 85 L.Ed. 800" Bailey v. Patterson, 369 U.S. 31 at 33, 82 S.Ct. 549 at 551, 7 L.Ed.2d 512 (1962). See also Goldstein v. Cox, 396 U.S. 471, 90 S.Ct. 671, 24 L.Ed.2d 663 (1969); Rockefeller v. Catholic Medical Center, supra, Gunn v. University Committee, 399 U.S. 383, 90 S.Ct. 2013, ......
  • Thoms v. Heffernan, No. 98
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 8, 1973
    ...the Supreme Court's admonition that its jurisdiction of appeals from three-judge courts is to be "narrowly construed," Goldstein v. Cox, 396 U.S. 471, 478, 90 S.Ct. 671, 24 L.Ed.2d 663 (1970), since "any loose construction of the requirements of the predecessor of § 1253 authorizing direct ......
  • Request a trial to view additional results
39 cases
  • Walters v. National Association of Radiation Survivors, No. 84-571
    • United States
    • United States Supreme Court
    • June 28, 1985
    ...from interlocutory decrees, just as the original statute provided for appeal from decisions in "any proceedings." Cf. Goldstein v. Cox, 396 U.S. 471, 476, 90 S.Ct. 671, 674, 24 L.Ed.2d 663 (1970) (28 U.S.C. § 1253 authorizes direct appeals from preliminary injunctions issued by three-judge ......
  • 43 712 Withrow v. Larkin 8212 1573, No. 73
    • United States
    • United States Supreme Court
    • April 16, 1975
    ...of the constitutional challenge to the statutes. See Brown v. Chote, 411 U.S. 452, 93 S.Ct. 1732, 36 L.Ed.2d 420 (1973); Goldstein v. Cox, 396 U.S. 471, 90 S.Ct. 671, 24 L.Ed.2d 663 (1970); Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310, 60 S.Ct. 517, 84 L.Ed. 774 (1940). 13. After th......
  • Johnson v. New York State Education Department, No. 890
    • United States
    • U.S. Court of Appeals — Second Circuit
    • August 13, 1971
    ...480, 483, 85 L.Ed. 800" Bailey v. Patterson, 369 U.S. 31 at 33, 82 S.Ct. 549 at 551, 7 L.Ed.2d 512 (1962). See also Goldstein v. Cox, 396 U.S. 471, 90 S.Ct. 671, 24 L.Ed.2d 663 (1969); Rockefeller v. Catholic Medical Center, supra, Gunn v. University Committee, 399 U.S. 383, 90 S.Ct. 2013, ......
  • Thoms v. Heffernan, No. 98
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 8, 1973
    ...the Supreme Court's admonition that its jurisdiction of appeals from three-judge courts is to be "narrowly construed," Goldstein v. Cox, 396 U.S. 471, 478, 90 S.Ct. 671, 24 L.Ed.2d 663 (1970), since "any loose construction of the requirements of the predecessor of § 1253 authorizing direct ......
  • Request a trial to view additional results

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