United States v. Dollar, 13130.

• Decision Date: 13 May 1952
• Docket Number: No. 13130.,13130.
• Citation: 196 F.2d 551
• Parties: UNITED STATES v. DOLLAR et al.
• Court: U.S. Court of Appeals — Ninth Circuit

196 F.2d 551 (1952)

UNITED STATES v. DOLLAR et al.

No. 13130.

United States Court of Appeals Ninth Circuit.

May 13, 1952.

Holmes Baldridge, Asst. Atty. Gen., Edward H. Hickey, Donald B. MacGuineas, Attorneys, Department of Justice, Washington, D. C., Philip H. Angell, Sp. Asst. to Atty. Gen., for appellant.

Herman Phleger, Gregory A. Harrison, Moses Lasky and Brobeck, Phleger & Harrison, all of San Francisco, Cal., for appellees R. Stanley Dollar, Dollar Steamship Line, Robert Dollar Co. and H. M. Lorber.

Warner W. Gardner, Washington, D. C., Edward G. Chandler, San Francisco, Cal., amici curie, Ralph K. Davies et al.

Before STEPHENS, HEALY, and POPE, Circuit Judges.

HEALY, Circuit Judge.

The United States brought suit in the court below to quiet title to certain shares of stock. The Dollar defendants moved for a dismissal, for judgment on the pleadings, and for summary judgment. Treating the motion solely as one for summary judgment, the court granted it and entered judgment to the effect that title to the shares resides in the Dollar Steamship Line and certain other named defendants. D.C., 100 F.Supp. 881. The United States appeals.

In an earlier suit involving the same shares brought by the Dollar interests against the members of the United States Maritime Commission in the District Court of the District of Columbia Circuit, judgment initially went against the plaintiffs, it being found and determined that the shares had been acquired by the Commission outright, not as a pledge as claimed by the plaintiffs. Dollar v. Land, D.C., 82 F.Supp. 919. On appeal the Court of Appeals of the District reached an opposite conclusion and reversed. Dollar v. Land, 87 U.S.App. D.C. 214, 184 F.2d 245.

In ruling on the motion for summary judgment in the present action the trial court appears to have considered the record in the District of Columbia suit for the purpose only of determining whether the issues were the same as here. It does not appear to have made any appraisal of the facts or undertaken independently to determine the issues either of fact or law. In short, as we understand its action, it bypassed decision on the view that a rule of law precludes litigation by the United States. Obviously summary judgment could not properly have been granted on any other theory. The facts and circumstances before the courts in the case decided in the District of Columbia Circuit were such that reasonable minds not only could, but did, draw from them opposing inferences as to the nature and effect of the transaction. This being true the case was not one for summary disposition, but for trial and findings. Detsch & Co. v. American Products Co., 9 Cir., 152 F.2d 473; Stevens v. Howard D. Johnson Co., 4 Cir., 181 F.2d 390, 394; Paul E. Hawkinson Co. v. Dennis, 5 Cir., 166 F.2d 61; Ramsouer v. Midland Valley Ry. Co., 8 Cir., 135 F.2d 101; National Surety Corp. v. Allen-Codell Co., D.C.E.D.Ky., 5 F.R.D. 3; cf. Vale v. Bonnett, D.C.Cir., 191 F.2d 334; Lane Bryant, Inc., v. Maternity Lane, 9 Cir., 173 F.2d 559, 564. Furthermore the United States asserts that it has available and is prepared to offer numerous items of new evidence tending to establish the validity of its claim. These items are set out in the government's brief. Appellees argue that they are not new, or are incompetent, or merely cumulative. However, criticisms of this nature are for the trial court to consider when the evidence is offered.

As we pointed out on an earlier occasion, United States v. Dollar, 9 Cir., 193 F.2d 114, the ground of the judgment below is that by reason of the intervention of government counsel in the defense of the suit against the Maritime Commission, the United States is estopped to relitigate the issues determined in that suit. The decision appears to us at loggerheads with repeated declarations of the Supreme Court in the course of the earlier suit. Land v. Dollar, 330 U.S. 731, 736, 737, 739, 67 S.Ct. 1009, 91 L.Ed. 1209; Land v. Dollar, 341 U.S. 737, 739, 741, 71 S.Ct. 987, 95 L.Ed. 1331. It is for that tribunal, not for us or for the district judge, to determine whether those declarations still hold good.

Apart from the doctrine of collateral estoppel, appellees urge several grounds for affirmance not ruled on by the trial court. We are not disposed to consider the arguments at this juncture.

The judgment is reversed and the cause remanded for plenary trial on the issues of fact and law involved.

POPE, Circuit Judge.

I concur. But I wish to add some observations as to my own views in the matter.

The trial court's conclusion as to the application of the doctrine of collateral estoppel is based upon the fact that the individuals who were defendants in Dollar v. Land were represented by the Government attorneys, who took over the defense and controlled the case. The propriety of the application of that rule in cases involving private persons, and where no question of sovereign immunity arises, must be conceded. Souffront v. Compagnie Des Sucreries, 217 U.S. 475, 30 S.Ct. 608, 54 L.Ed. 846. The court thought that logic and reason required the application of the same rule here, so as to require a holding that the United States was bound by the former judgment.

I am not satisfied that our citation of Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209; and Land v. Dollar, 341 U. S. 737, 71 S.Ct. 987, 95 L.Ed. 1331, is a complete answer to the trial court's reasoning. When the first of those...