Case Information

Robert MOSES et al., Appellants, v. Nicholas deB. KATZENBACH, Acting Attorney General of the United States, et al., Appellees.

No. 18065.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 6, 1964. Decided Feb. 16, 1965.

342 F.2d 931

which benefited from the allegedly illegal arrangement to the detriment of Consolo, was not compelled (by the nature of the remedy) to part with its "illegal" profits. In addition, Consolo himself for four years prior to the Board's 1957 Grace Line order (effective October 1, 1957), had received the pecuniary benefits of a preferential arrangement with Grace Lines, held to be unlawful. He was never compelled to give up those profits to shippers that had been excluded.

In view of the substantial evidence showing that it would be inequitable to assess damages against Flota in favor of Consolo, we must conclude that the Commission abused the discretion granted it under Section 22 of the Shipping Act15 in imposing reparations on petitioner. Accordingly, we reverse the Commission's decision of September 18, 1963, and direct it to vacate its reparation order issued thereunder.16

So ordered.

Mr. William M. Kunstler, New York City, for appellants.

Mr. Alan S. Rosenthal, Atty., Dept. of Justice, with whom Asst. Atty. Gen. John W. Douglas and Messrs. David C. Acheson, U. S. Atty., and John C. Eldridge, Atty., Dept. of Justice, were on the brief, for appellees.

Before BASTIAN, WRIGHT and McGOWAN, Circuit Judges.

JUDGMENT

PER CURIAM.

THIS CAUSE came on to be heard on the record on appeal from the United States District Court for the District of Columbia, and was argued by counsel.

ON CONSIDERATION WHEREOF It is ordered and adjudged by this court that the judgment of the District Court appealed from in this cause be, and it is hereby, affirmed.

WRIGHT, Circuit Judge (concurring):

It seems more than passing strange, to me at least, that in some parts of this country citizens exercising their First Amendment rights of assembly, petition and free speech are arrested and convicted by the hundreds, while perpetrators of innumerable church bombings and burnings, kidnappings, beatings, maimings and murders of Negroes and civil rights workers are not prosecuted—or even apprehended. Perhaps, as appellants suggest, federal laws, or their enforcement, in this area are indeed inadequate. But I agree that an investigation as to the adequacy, or the execution, of these laws is not a matter within the jurisdiction of the judicial branch of this Government.

Footnotes

15 46 U.S.C. § 821.

16 In view of our disposition of this case it is unnecessary to consider petitioner's objection to the active participation of the Commission's counsel, who had earlier appeared before this court as an adversary, in the formulation and writing of the Commission's remand opinion.