429 U.S. 1337 | SCOTUS | 1977
Applicants Michael and Robert Meeropol brought this action in the District Court for the Southern District of New York against respondent Nizer, author of the book The Implosion Conspiracy, and respondents Doubleday & Co. and Fawcett Publications, its publishers, alleging copyright infringement, libel, and invasion of privacy. Summary judgment was granted for respondents on all claims, and applicants have appealed to the Court of Appeals for the Second Circuit. Applicants move before me as Circuit Justice to issue a certificate of necessity under 28 U. S. C. § 291 (a) or 28 U. S. C. § 1651, requesting The Chief Justice to designate judges from other circuits to sit in the appeal of this case.
Because § 291 (a) deals with a purely administrative matter, it would be inappropriate for me to rule in the context of an application under it that all of the judges of the Second Circuit are as a matter of law disqualified from hearing applicants’ appeal. At best that question could be addressed only by the full Court. Cf. Locks v. Commanding General, 89 S. Ct. 31, 21 L. Ed. 2d 78 (1968) (Douglas, J., in
Applicants move in the alternative for transfer of their appeal to another court of appeals. They have cited no statutory or case authority even intimating that a Circuit Justice may exercise any such far-reaching power. See MacNeil Bros. Co. v. Cohen, 264 F. 2d 186 (CA1 1959).
The application is denied in all respects.
Applicants initially moved before the Second Circuit for en banc consideration of their request for issuance of a certificate of necessity or transfer of the appeal to another circuit. That request was denied, with
Although applicants have specifically addressed this application to me as Circuit Justice for the Second Circuit, and have not requested my disqualification, I note that they do suggest that “any judges who sat on any of the appeals of the Rosenbergs would very likely conclude that they should disqualify themselves from the current appeal.” Application ¶ 11. I was a member of a Second Circuit panel, along with Judges Swan and Friendly, which denied postconviction relief to Rosenberg codefendant Morton Sobell. United States v. Sobell, 314 F. 2d 314 (CA2), cert. denied, 374 U. S. 857 (1963). Despite this, I will not disqualify myself from ruling on the instant application. I do not believe that my “impartiality” to decide the extent of a Circuit Justice's powers under §291 (a) “might reasonably be questioned,” 28 U. S. C. §455 (a) (1970 ed., Supp. V), in light of this participation in a case not related to the present action.
Section 291 (a) provides:
“The Chief Justice of the United States may designate and assign temporarily any circuit judge to act as circuit judge in another circuit upon ■ presentation of a certificate of necessity by the chief judge or circuit justice of the circuit where the need arises.”