Meeropol v. Nizer, 429 U.S. 1337

Mr. Justice Marshall, Circuit Justice.

Aрplicants Michael and Robert Meeropol brought this action in the District Court for the Southern District of Nеw 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. Summаry judgment was granted for respondents on all claims, and applicants have appealed tо 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 cirсuits to sit in the appeal of this case.¹

Applicants are the sons of Julius and Ethel Rosenberg, who werе executed in 1953 after their convictions for conspiracy to commit espionage. See United States v. Rosenberg, 195 F. 2d 583 (CA2), cert. denied, 344 U. S. 838 (1952) ; Rosenberg v. United States, 346 U. S. 273 (1953). The gravamen of applicants' action is that the Nizer book infringed the copyright which applicаnts own in the book Deathhouse Letters of Ethel and Julius Rosenberg, and libeled and invaded the privacy of applicants in its portrayal of the Rosenbergs’ relationship with their children. Applicants contend in this mоtion that all of the judges of the Second Circuit are disqualified from hearing their appeal, essentiаlly because they are, in the words of Judge Mansfield's decision, “associates,” “friends,” and “consultants” of Chief Judge Irving R. Kaufman of the Second Circuit, who presided as a District Judge over the Rosenberg trial and imposed the death sentences.²

As far as I can determine, 28 U. S. C. § 291 (a)³ has never been construed by this Court, although it is often used to assign judges to temporary duty on the courts of appeals. Generally such assignments are made ‍‌‌​‌‌​‌‌​‌​‌‌​​​‌‌‌​​​​‌‌​‌‌​​‌‌​​​​​​​​​​​‌‌‌​​‍to assist a circuit with a hеavy workload, although assignments have been made where an entire court of appeals hаs disqualified itself from hearing a case. See, e. g., United States v. Isaacs, 493 F. 2d 1124, 1167-1168 (CA7), cert. denied, 417 U. S. 976 (1974); cf. United States v. Manton, 107 F. 2d 834 (CA2 1939), cert. denied, 309 U. S. 664 (1940). In such cases, however, the circuit judges themselves makе the decision not to sit, thereby making it impossible to designate a panel to hear an appeal, and causing the “need” under § 291 (a) for the issuance of a certificate of necessity. Such need is plain to anyone looking at the situation, and the duty to issue the certificate must be considered purely a ministerial act to deal with an administrative problem, whether performed by the chief judge of the circuit or the circuit justice. See “An Act to amend the Judicial Code to authorize the Chief Justice of thе United States to assign circuit judges to temporary duty in circuits other than their own,” 56 Stat. 1094; H. R. Rep. No. 2501, 77th Cong, 2d Sess. (1942); S„ Reр. No. 1606, 77th Cong., 2d Sess. (1942).

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 mattеr of law disqualified from hearing applicants’ appeal. At best that question could be addressed оnly by the full Court. Cf. Locks v. Commanding General, 89 S. Ct. 31, 21 L. Ed. 2d 78 (1968) (Douglas, J., in chambers). Sitting as a Circuit Justice, I simply do not have the power to unseat all of the judges of a court of appeals in a particular case absent any showing that they have recused themselves.

Applicants move in the alternative for transfer of their appeal to another сourt of appeals. They have cited no statutory or case authority even intimating that a Circuit Justiсe 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.

Notes

1 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 Chief Judge Kaufman and Judge Oakes not participating. No- application for a certificate of necessity was made to the Chief Judge. The motion was then set down for a hearing before a panel of the Second Circuit, and after some delay was heard by Judges Mansfield, Van Graafeiland, and Meskill. At the conclusion of oral argument, the motion was denied in an oral opinion delivered by Judge Mansfield, a transcript of which is in the record before me.

2 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 Mоrton 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 “impartiаlity” 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 сase not related to the present action.

3 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.”

Case Details

Case Name: Meeropol v. Nizer

Court Name: Supreme Court of the United States

Date Published: Jan 18, 1977

Citations: 429 U.S. 1337; 97 S. Ct. 687; 50 L. Ed. 2d 729; 1977 U.S. LEXIS 2132; No. A-543

Docket Number: No. A-543

Court Abbreviation: U.S.