Utica Mutual Insurance Company v. Vincent, No. 192

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtMOORE and FRIENDLY, Circuit , and BRYAN
Citation375 F.2d 129
Decision Date14 March 1967
Docket NumberDocket 30756.,No. 192
PartiesUTICA MUTUAL INSURANCE COMPANY, Appellant, v. Merle D. VINCENT, Jr., Regional Director of the Third Region of the National Labor Relations Board, Appellee.

375 F.2d 129 (1967)

UTICA MUTUAL INSURANCE COMPANY, Appellant,
v.
Merle D. VINCENT, Jr., Regional Director of the Third Region of the National Labor Relations Board, Appellee.

No. 192, Docket 30756.

United States Court of Appeals Second Circuit.

Argued January 26, 1967.

Decided March 14, 1967.


375 F.2d 130

Charles Barnhill, Chicago, Ill. (Philip C. Lederer, Kalvin M. Grove, Chicago, Ill., Thomas P. Schnitzler, New York City, Patrick L. Vaccaro, New Rochelle, N. Y., Lederer, Barnhill & Fox, Chicago, Ill., Morgan F. Bisselle, New Hartford, N. Y., Jackson, Lewis & Schnitzler, New York City, of counsel), for appellant.

Elliott C. Lichtman, Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Herman M. Levy, Washington, D. C., Attorney), for appellee.

Before MOORE and FRIENDLY, Circuit Judges, and BRYAN, District Judge.*

FRIENDLY, Circuit Judge:

This action was brought in the District Court for the Northern District of New York by Utica Mutual Insurance Company ("Utica"), a New York corporation, against the Regional Director of the Third Region of the NLRB. The complaint alleged that Communications Workers of America, AFL-CIO, had filed a petition seeking certification as exclusive bargaining representative of the office clerical, maintenance and cafeteria workers in Utica's main office; that the Regional Director had thereupon caused to be served a notice of a representation hearing pursuant to § 9(c) of the National Labor Relations Act and § 102.63 et seq. of the Board's Rules and Regulations; and that such a hearing had begun before a hearing officer. The gravamen of the complaint was that the provision in § 9(c) (1) that the hearing officer "shall not make any recommendations with respect thereto" deprived Utica "of its valuable property rights to a full and fair hearing on the matter of an `appropriate bargaining unit'" without the due process of law guaranteed by the Fifth Amendment, whether decision were to be made by the Regional Director or by the Board, see Rules and Regulations § 102.67. The complaint sought a declaratory judgment of invalidity and interlocutory injunctive relief. Finding that the complaint raised no substantial constitutional question, Judge Brennan declined to convoke a court of three judges under 28 U.S.C. § 2282 and dismissed the action.

When a complaint for an injunction makes a claim of unconstitutionality which on its face would require a court of three judges under 28 U.S.C. § 2281 or 2282, the single district judge should consider whether the claim is substantial and, if he finds it is not, refuse to convoke a court of three judges and dismiss the action. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933); California Water Service Co. v. City of Redding, 304 U.S. 252, 254-255, 58 S.Ct. 865, 82 L.Ed. 1323 (1938); Wicks v. Southern Pacific Co., 231 F.2d 130 (9 Cir.), cert. denied, 351 U.S. 946, 76 S.Ct. 845, 100 L.Ed. 1471 (1956); White v. Gates, 102 U.S.App.D.C. 346, 253 F.2d 868, cert. denied, 356 U.S. 973, 78 S.Ct. 1136, 2 L.Ed.2d 1147 (1958); Carrigan v. Sunland-Tujunga Telephone Co., 263 F.2d 568 (9 Cir.) cert. denied, 359 U.S. 975, 79 S.Ct. 893, 3 L.Ed.2d 841 (1959); Bell v. Waterfront Comm., 279 F.2d 853, 857-858 (2 Cir. 1960); Powell v. Workmen's Compensation Board, 327

375 F.2d 131
F.2d 131, 138 (2 Cir. 1964).1 This is not merely a power confided to the single district judge but an important responsibility, since the requirement of three judges "entails a serious drain upon the federal judicial system particularly in regions where, despite modern facilities, distance still plays an important part in the effective administration of justice," Phillips v. United States, 312 U.S. 246, 250, 61 S.Ct. 480, 483, 85 L.Ed. 800 (1941), a burden not only on the inferior courts but, if the three judges retain the case, upon the Supreme Court by virtue of the provision for direct appeal, 28 U.S.C. § 1253.2 Appeal from a dismissal by a single judge lies to the court of appeals. Bell v. Waterfront Comm., supra, 279 F.2d at 858, and cases there cited; cf. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962). We hold that Judge Brennan properly performed his duty in this case

As to the substantiality of Utica's constitutional objection, we take as our criterion the Supreme Court's statement, "The lack of substantiality in a federal question may appear either because it is obviously without merit or because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject." California Water Service Co. v. City of Redding, supra, 304 U.S. at 255, 58 S.Ct. at 867. Utica finds in the due process clause of the Fifth Amendment a requirement that when there are issues of credibility, as was assumed to be true here, no determination of fact may be made unless the decider has either seen the witnesses himself or has been furnished with a report as to credibility by another who has, save when circumstances such as the death of a deposed witness unavoidably prevent. We discern no such absolute in the history laden words of the Fifth Amendment; Utica would freeze what is usually a sensible rule of judicial administration into a constitutional imperative.

Even on issues where due process requires a "trial type" hearing, the due process clause makes no such inexorable command as Utica asserts.3 Chief Justice Hughes' ringing pronouncement in the first Morgan case, "The one who decides must hear," was preceded by a statement that "while it would have been good practice to have the examiner prepare a report and submit it to the Secretary

375 F.2d 132
and the parties * * * we cannot say that that particular type of procedure was essential to the validity of the hearing," and was followed by the explanation
"This necessary rule does not preclude practicable administrative procedure in obtaining the aid of assistants in the department. Assistants may prosecute inquiries. Evidence may be taken by an examiner. Evidence thus taken may be sifted and analyzed by competent subordinates. Argument may be oral or written. The requirements are not technical. But there must be a hearing in a substantial sense. And to give the substance of a hearing, which is for the purpose of making determinations upon evidence, the officer who makes the determinations must consider and appraise the evidence which justifies them." Morgan v. United States, 298 U.S. 468, 478, 481-482, 56 S.Ct. 906, 910-912, 80 L.Ed. 1288 (1936).

Nothing in this suggests that the decider must actually hear the witnesses or be furnished a report on their credibility; the thrust is quite the opposite.4 Although the respondent in NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 350-351, 58 S.Ct. 904, 913, 82 L.Ed. 1381 (1938), did not raise the precise argument advanced by Utica, the Supreme Court there sanctioned the Labor Board's transferring a case to itself at the conclusion of the testimony and deciding it without an examiner's report; Mr. Justice Roberts said, "The Fifth Amendment guarantees no particular form of procedure; it protects substantial rights," and cited Morgan I. Consolidated Edison Co. of New York v. NLRB, 305 U.S. 197, 226-229, 59 S.Ct. 206, 83 L.Ed. 126 (1938), is in accord....

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93 practice notes
  • Interstate Investors, Inc. v. United States, No. 66 Civ. 3004.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 22, 1968
    ...See United States v. Interstate Commerce Commission, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451 (1949); Utica Mutual Ins. Co. v. Vincent, 375 F.2d 129, 130-131 (2d Cir. 1967). Consequently the rule has evolved that private claims should not be joined with a petition to review an I.C.C. orde......
  • KFC National Management Corp. v. NLRB, No. 821
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 8, 1974
    ...S.Ct. 788, 92 L.Ed. 1145 (1948); NLRB v. Stocker Mfg. Co., 185 F.2d 451, 452-454 (3rd Cir. 1950); Utica Mutual Insurance Co. v. Vincent, 375 F.2d 129, 131-132 (2d Cir. 1967), cert. denied, 389 U.S. 839, 88 S.Ct. 63, 19 L.Ed.2d 102 (1967); Braniff Airways, Inc. v. CAB, 126 U.S.App.D.C. 399, ......
  • Johnson v. Lee, Civ. A. No. 12404.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • February 14, 1968
    ...of Elections, 380 F.2d 445, 448 (2 Cir. 1967); Offermann v. Nitkowski, 378 F.2d 22 (2 Cir. 1967); Utica Mutual Insurance Co. v. Vincent, 375 F.2d 129, 130 (2 Cir. 1967); Powell v. Workmen's Compensation Board, 327 F.2d 131, 138 (2 Cir. 1964); Bell v. Waterfront Comm., 279 F.2d 853, 857-858 ......
  • Kalson v. Paterson, Docket No. 07-1243-cv.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 9, 2008
    ...452 F.2d 1121, 1126 (2d Cir. 1971) (affirm if "there can be but one ruling by a three-judge court"); Utica Mut. Ins. Co. v. Vincent, 375 F.2d 129, 131 n. 1 (2d Cir. 1967) (affirm if "the decision could not possibly go in any manner save one"). It seems unlikely, however, that the language u......
  • Request a trial to view additional results
93 cases
  • Interstate Investors, Inc. v. United States, No. 66 Civ. 3004.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • July 22, 1968
    ...See United States v. Interstate Commerce Commission, 337 U.S. 426, 69 S.Ct. 1410, 93 L.Ed. 1451 (1949); Utica Mutual Ins. Co. v. Vincent, 375 F.2d 129, 130-131 (2d Cir. 1967). Consequently the rule has evolved that private claims should not be joined with a petition to review an I.C.C. orde......
  • KFC National Management Corp. v. NLRB, No. 821
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 8, 1974
    ...S.Ct. 788, 92 L.Ed. 1145 (1948); NLRB v. Stocker Mfg. Co., 185 F.2d 451, 452-454 (3rd Cir. 1950); Utica Mutual Insurance Co. v. Vincent, 375 F.2d 129, 131-132 (2d Cir. 1967), cert. denied, 389 U.S. 839, 88 S.Ct. 63, 19 L.Ed.2d 102 (1967); Braniff Airways, Inc. v. CAB, 126 U.S.App.D.C. 399, ......
  • Johnson v. Lee, Civ. A. No. 12404.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • February 14, 1968
    ...of Elections, 380 F.2d 445, 448 (2 Cir. 1967); Offermann v. Nitkowski, 378 F.2d 22 (2 Cir. 1967); Utica Mutual Insurance Co. v. Vincent, 375 F.2d 129, 130 (2 Cir. 1967); Powell v. Workmen's Compensation Board, 327 F.2d 131, 138 (2 Cir. 1964); Bell v. Waterfront Comm., 279 F.2d 853, 857-858 ......
  • Kalson v. Paterson, Docket No. 07-1243-cv.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 9, 2008
    ...F.2d 1121, 1126 (2d Cir. 1971) (affirm if "there can be but one ruling by a three-judge court"); Utica Mut. Ins. Co. v. Vincent, 375 F.2d 129, 131 n. 1 (2d Cir. 1967) (affirm if "the decision could not possibly go in any manner save one"). It seems unlikely, however, tha......
  • Request a trial to view additional results

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