Ronald E. Galella v. Jacqueline Onassis, John Walsh, and United States of America, Intervenor-Appellee

company refer- connection with the . its criminal The SEC made 1967. Department he relied Benson called report that who of Justice ence to the urging buy repeatedly Jury him April re- him to the Grand he more stock . . . and that re- on October turned indictment period his ceived all confirmations of stock considerable While a 1968. through elapsed mail. time the SEC transactions the between the time hearing and crim- conducted its first the We have reviewed the record trial Depart- by the reference the SEC to inal say the verdict and we unsupported by that cannot Justice, appears to have this ment evidence or substantial complexi- necessary of the because been contrary weight it is effort of the case and the ties any Nor do we find merit evidence. parties protect Government ap- by advanced of the other contentions charged proceedings in the civil pellant. improvident proceedings. criminal judgment of the district court will be affirmed. THE OF EVI- SUFFICIENCY Y.

DENCE contends that

Benson also supported by is not substantial

verdict weight contrary and it is to the evidence appeal, evidence On evidence. drawn must the inferences be light taken in thе most favorable government. United v. Gober Ronald E. GALELLA, Plaintiff-Appellant, States man, 458 F.2d 226 denying In new Benson’s motion for Jacqueline ONASSIS, Defendant- trial, Appellee, ev- district reviewed length. finding idence this case at In Defendants, al., Walsh et John guilty amply sup- was that the ported by verdict evidence, the court substantial America, United States of stated: Intervenor-Appellee. has, defendant most [T]he for the 71-1902, Nos. 618 and Dockets ignored large part, amount tes- 72-1993 and 72-2312. during timony presented which was Appeals, United States thirty-five days a re- trial. But Second Circuit. testimony, examination of Gillen Argued April 10, 1973. alone, he testified indicates that Sept. 13, Decided he fully had not been informed concerning defendant Benson Rehearing Rehearing En Banc shares of stock which the defendant Denied Nov. him; had sold in- that he was not Enzyme” formed that “Mr. was

only product being produced by Home

Makers; that he was never made company

aware of deficit of

. that he did not know about

the condemnation the Government purchas-

until after he had made the ; urged by

es that he was the defend- buy stock; ant to more of

although he assumed Benson

officer company, defendant

never made a full disclosure

Timbers, Judge, panel Circuit filed

opinion concurring part and dissent-

ing part.

Timbers, Judge, joined Circuit

Oakes, Judge, opinion filed Circuit dis- senting rehearing from denial of en

banc.

Hays, Judge, Circuit voted joined in

en but banc reconsideration opinion.

neither Julien, (Stu- City

Alfred S. New York Schlesinger, art A. David Jaroslawicz Brown, and City, Bennett D. New York counsel), plaintiff-appellant for Galel- la. Rifkind, City Simon H. York New

(Paul, Weiss, Rifkind, Wharton & Gar- rison, Martin Kap- London and Lewis A. lan, City, counsel), New York for de- fendant-appellee Onassis. Fargo, III, Atty. A. W. U. Asst. S. (Whitney Seymоur, Jr., North U. S. Atty., Y., D. S. N. Michael D. Hess and Bronner, Attys., William R. Asst. U. S. counsel), intervenor-appellee Unit- ed defendants-appellees and States John Walsh, James Kalafatis and John Con- nelly. dismissing complaints TIMBERS, judgments The SMITH, HAYS Before grant injunctive re- affirmed; Judges. Circuit Tax- herein modified. is lief affirmed Judge: against plaintiff af- SMITH, Circuit of costs ation J. JOSEPH part. part, reversed firmed photogra- Galella, free-lance Donald summary judgment photographer free-lance is a

pher, appeals from a making against dismissing specializing three and sale complaint in the persons. arrest, De- photographs of well-known agents false Service Secret of the late widow Onassis fendant prosecution and interference malicious President, Kennedy, mother John F. (S.D.N.Y., Mc- C. Edward with trade Kennedy children, John Caro- trial the two Judge),1 Lean, the dismissal after Onassis, line, of Aristotle and is the wife against complaint Jac- his identical reput- widely figure shipping known grant injunc- queline and the Onassis Walsh, John James ed multimillionaire. her to defendant Onassis tive relief Connelly S. are U. Kalafatis and John intervenor, counterclaim agents assigned Service Secret intervening States, com- United Kennedy duty protecting children retaxing judgment plaint third and a provides under 18 U.S.C. § (S.D.N.Y., transcript plaintiff costs protection of the children of deceased F.Supp. Irving Cooper, Judge), Ben presidents age up to the of 16. (1972). al- In addition to numerous leged “paparaz- errors, procedural fancies himself as a Galella raises (literally annoying insect, zo” a kind of as an the First Amendment absolute perhaps roughly equivalent Eng- liability shield sanctions. question The is whether BY defendants “MEMORANDUM DECISIONS the^e scope acting were ployment within the of their THE em- COURT performing the acts of which Civ. plaintiff complains. controversy I have no nature of this between doubt plaintiff professional plaintiff, photographer, were. The fact feels aggrieved by Jacqueline Onassis, their is acts widow of immaterial. defendant the question briefly my Kennedy a Doubtless this is in factual but President is described plaintiff’s opposition affidavits in to this memorandum on motion No. 79 decided here- motion do raise not a triable issue on this with. aspect policy by of present the case. For sound reasons The motion is made defendants explained length Walsh, Cоnnelly at in the the decisions on dismiss Kalafatis and to subject, against agents, the these under the to circum- action them for failure state They supported stances of this case are immune a from suit claim. have their motion may by upon and not be to called defend them- I treat it as motion for affidavits. will a plaintiff’s against extravagant summary selves claims. judgment. Supreme Special Agents moving in The decision of the Court The defendants Agents Bivens of v. Six Unknown Named of the United Secret The States Service. charged [403 the Federal Bureau of Narcotics U.S. is with the Secret Service statute (June responsibility protecting persons L.Ed.2d 619] of S.Ct. the plaintiff not, 21, 1971) upon by president relied does until children of a former minor my require opinion, age this in the denial of the § reach of 16. 18 U.S.C. only assigned the facts motion. Not were of to 3056. These defendants were protect here, Kennedy, very those but case different from the children of President important, Supreme Jr., more the ex- and John They neither of whom Caroline upon pressly passing acting capacity it was not in stated sixteen. throughout were liability by question immunity period from the of in ac- the involved this position. virtue their official 39 U.S. tion. government Law at em Week It is well settled that granted. dong ployee dis- The motion is The action is suit acts immune from against Walsh, missed James Kala- as John duties within the course of his official Connelly. employment. scope fatis and John his v. Mateo Barr EDWARD McLEAN [79 [Matteo] U.S. 564 S.Ct. /s/ (1959) ; Gregoire USDJ v. Bid 1434] L.Ed.2d July 2, (2d 1949) dle, ; Dated : 1971” F.2d Cir. Ove Floete, Contracting Co. v. Gustavsson F.2d 655 intentionally her, Paparazzi them- “gadfly.”) assaulted and battered make lish engaged inflicted emotional distress and public and obnoxi- as selves visible campaign pos- subjects photographic harassment. as their ous to and the advertisement to aid in sible U. under 28 removed action was The of their works.2 wide sale Dis- 1442(a) States United S.C. § summary motion for aOn trict Court. judgment, examples Galella’s conduct Some against Se- claim Galella’s brought out at trial are illustrative. dismissed, the agents was Service cret Kennedy pictures took Galella John agents finding act- were riding bicycle his in Central Park across authority scope ing their within way jumped from out his home. He prosecution. from immune and thus were boy’s agents path, causing into the government time, inter- At thе same safety. agents’ concern for John’s injunctive from requesting relief interrogation vened reaction and led Galella obstruct- of Galella activities against Galella’s arrest and his action ability agents; ed the Service’s Secret other occasions interrupted children.4 tect Mrs. Onassis’ tennis, Caroline in- and court, state the case to motion to remand private vaded the children’s At schools. trial, just prior denied. one time he uncomfortably came close power in a boat Mrs. swim- Onassis photographic incidents of cov- Certain ming. jumped He postured often agree- erage by subsequent Galella, taking around pictures par- while of her among parties ment for Galella ty notably opening at a theater but also engage, resulted in the issuance on numerous other fol- occasions. He restraining temporary prevent order to practice lowed a bribing apartment further harassment of Mrs. Onassis house, nightclub restaurant and doormen enjoined the children. from Galella was romancing well as family servant to “harassing, alarming, startling, torment- keep him advised of the movements of touching ing, person of the defend- family. ant ... or her children . ... blocking following and from After their detention and arrest movements public places complaint by agents the vading thoroughfares, the Secret Service in- protecting privacy their immediate Mrs. Onassis’ son and ac- zone quittal physical ges- court, movements, means the state filed agents photographic tures or with equipment suit in state court performing reasonably and Mrs. Onassis. act Galella claimed that place calculated safety Onassis, under orders from Mrs. lives _ agents the falsely three defendant . had . and and her chil- arrested maliciously prosecuted jeopardy.” dren months, him, Within two and that charged Galella was this incident in with addition to several violation of others temporary the restraining order; described in complaint the constituted an a new signed order unlawful was required which interference with his trade. photographer the yards keep 100 from denying any Mrs. Onassis answered apartment the Onassis yards and 50 from role in part the the arrest or person the of the defendant and her chil- attempts claimed interference with his dren. Surveillanсe prohibited. was also photograph her, and counterclaimed for damages3 injunctive relief, charg- and Upon notice consolidation of the ing that privacy, preliminary Galella had injunction her hearing invaded and trial newspapers report 2. The (McKinney’s Consol.Laws, §§ recent incident Act 1948) c. 6 annoyed Brando, which one Marlon Galel- added. punched la, Galella, jaw breaking Galella’s responsible pro- 4. The Secret Service is for infecting and Brando’s hand. tecting presidents the children of former until damage age dropped The claim was later and a the of 16. 18 U.S.C. § 3056. Rights claim for violation of New York Civil judgment should which injunction, plaintiff mov- exercise permanent jump agents protected. saw Galella aft- The months jury trial —nine ed for Kennedy who path was of John into the served, remand er was answer dangerously as de- to swerve his bike forced was motion The first court. state- was about grounds Park and he left Central untimely, second the nied as whereupon Avenue, the Fifth to enter economy. prior to trial judicial Just gave photographer. agents chase to the deposed Mrs. Onаssis. Under Galella press was a indicated that he court, defend- this the order tective photographer York with the New listed testify office the ant was allowed Police; agents City he the went Attorney the outside U. the S. story, police station the to check on presence of Galella. agents one of the made com- where dis- six-week trial After charges plaint on which state court granted relief claim and missed Galella’s Certainly were based. it was reasonable intervenor. defendant and both agents “check out” an individual keeping (1) enjoined from was endangered charge,5 their who has under and her children the defendant prosecution apparent seek violation them; following any of or surveillance of state law which interferes with them yards (2) approaching within 100 discharge in the of their duties. children, or or her of defendant home acting yards his child’s school within either If officer is within 100 yards government or 50 conduct of either child officer his or role within name, defendant; (3) using yards perimeter of outer is at least within the portrait picture authority. Bivens, supra, her defendant or or 456 F.2d agents advertising; (4) аttempt- Service children at 1345.6 The Secret ing charged or to communicate with defendant were under U.S.C. § attorney. except through “guarding against preventing her children her with any activity by any individual which grant sum conclude that We safety could create a risk to and well n mary judgment and dismissal of Galella’s being . . children re- . agents Service claim the Secret physical injury.” sult It their was charg agents proper. Federal when undisputed agents duty were on require the exercise ed with duties time, at the and there was evidence that liability from of discretion are immune Kenendy believed John to be en- scope of their au within the for actions dangered by Unques- Galella’s actions. Ordinarily agents thority. enforcement agents tionably acting within were charged duty of arrest are scope authority.7 of their Bivens Unknown immune. v. Six sure, act where even To be Agents Narc., 456 Named of Fed. Bur. of authority, fed not all ing their within protec F.2d 1339 liability. agents assigned agents are immune under tive duties eral however, statute, Immunity whose de- require accorded officials instant this 483, Compare Spalding Vilas, privilege 16 5. 161 U.S. Even where has been v. an absolute Gregoire (1896) ; police charged 631, v. ar- denied officers with false 40 L.Ed. 780 S.Ct. 1949), good Biddle, 579, (2d rest, F.2d Cir. faith and in the 580-581 reasonable belief 177 cert, 949, 803, validity denied, S.Ct. 94 339 70 the arrest is an affirmative de- U.S. of Matteo, ; 547, (1950) Ray, v. 360 See 1363 Barr fense. Pierson v. 386 U.S. 555- L.Ed. 1335, 1213, (1967) 564, 572-573, 3 557, L.Ed.2d L.Ed.2d 288 U.S. 79 S.Ct. 87 S.Ct. 18 (1959). action) ; (§ Bivens, supra, F.2d 1983 456 1434 1348; Boyd Huffman, F.Supp. 1341, v. 342 complaint as one failure to label 7. The 787, (N.D.Ohio, W.D.1972). 789 by the fact that alter officer an does made agents were suggests long while occurred 6. the incident Bivens as the officer carrying of unquestionably their duties government agent out acting in his role as he person. protection acting perimeter of John’s the “outer line within of his duty.” Bivens, supra, of 456 F.2d at 1348. 994 exploitation battery, of of discretion commercial element an cisions involve personality, invasion may defendant’s made with- the decisions so that privacy. Fully crediting of defendant’s ficti- of vexatious or threat out fear liability. liability testimony, alleged the court found no personal tious suits Contracting on claim. Evidence ‍​‌‌​‌​‌​‌‌‌​‌‌​​‌‌‌‌​‌​‌​‌​​​‌​‌​‌‌‌‌‌‌​‌‌‌​​‌‌​‍offered Galella’s Co. Ove Gustavsson 1962), had on defense showed that Galella Floete, 655, F.2d 659 Cir. 299 cert, intentionally physically 1862, touched 827, occasion denied, 83 S.Ct. 374 U.S. daughter, caused and her (1963). Mrs. Onassis The 10 issue L.Ed.2d 1050 physicаl in his frenzied fear of contact public interest case is

each whether get pictures, attempts to their followed judg- particular in a unfettered official’s closely in her children too defendant and outweighs rights private ments endangered safety automobile, of may supra, Bivens, be violated.8 See swimming, they the children while were protective of F.2d at 1346. duties skiing riding. water and horseback Ga- agents assignments this on similar to successfully challenge lella cannot protection.9 warrant this See Scherer finding court’s tortious conduct.11 of cert, Brennan, (7th Cir.), F.2d Finding that Galella had denied, 592, U.S. 88 S.Ct. very himself into “insinuated fabric (1967). L.Ed.2d 666 ” life the court Mrs. Onassis’ . . . Discrediting part framed its relief in on the need all of tes prevent timony photog further defend- invasion the court found the rapher privacy. guilty harassment, ant's Whether or not this intention ac- present law, distress, cords with New York al infliction of there emotional assault personal outweighs immunity liberties the detriment of Persons whom has been perhaps deterring vigorous police Attorney action.” It vided include: General interpretation (1) States, Enemy based this immunity on the lack United Directors of thе Alien police Department officers under the common Unit of the Control of Justice ; (2) laxity police regard Immigration law rights and the for individual District Director of wrongfully plaintiff as reflected in numerous who eases before arrested as a courts; (3) immunity enemy custody kept the lack of German alien and him in police Rights citizenship, for state under the Civil Act. after establishment of his French F,2d However, duty supra; Gregoire, at 1346-1347. a Director of Rent Stabiliza- protecting personages singled press defamatory out Con- tion issued a release who gress extraordinary employees given inas need of this shield who had several out incorrect likely concerning compensation harm is toto aoelo from different information police employees department, the normal function of arrest for law in- methods probable Congres- violation on warrant or on cause as formation caused considerable Barr, agency, supra; in Bivens. sional criticism of the government reports through officials who false credibility findings in- 10. The court’s are plaintiff’s perform adequately failure to broad, supported in the deed but canceled, his contract caused the contract to be galling record. demonstrated lack Contracting, supra; Ove Gtistavsson Secret respect gave for the no indica- truth agents assigned protect Service the Presi- any meaning tion consciousness of the personal kept dent under who close surveil- only did he admit the oath he had taken. Not possessed large lance a firearms dealer who blatantly testimony, lying in his he admitted weapons number of near the President’s attempting to have other witnesses lie for him. temporary residence when he refused to leave is a criminal violation under Harassment residence, the area while the President was in (McKinney’s supra. New Penal Law 240.25 Scherer, Rhodes, § York See also Krause v. 1967) Consol.Laws, c. when with intent (O’Sul- (6th 1972) F.2d 445-446 public person in a follows another livan, concurring) ; harass a J., Nixon, Reese v. engages physical place, contact or inflicts See, F.Supp. (C.D.Cal.1972). 317-318 legitimate annoying without Brooklyn conduct generally, Review, 39 Second Circuit engaged found to have (1973). cause. Galella L.Rev. proscribed conduct. Conduct sufficient this liability for harassment invoke criminal stated that “the fiction 9. In Bivens the court private discretionary may for action. is be the basis act is not [arrest] this- Cf. York, Long New Co. of v. Beneficial Finance that the bene- maintained because of belief (1972). 11, protection society 664 39 A.D.2d 330 N.Y.S.2d of fit derived from

995 surveillance, in- obtrusive and under stant is sustainable it is no doubt truding presence, and proscription was unwarranted of harass- New York’s any doubt If there were unreasonable. ment.12 minds, con- in our Galella’s inexcusable legitimate coun course Of duct minor children toward defendant’s may some tervailing warrant social needs would resolve it. despite reason an individual’s intrusion seriously expectation privacy not and freedom Galella does able finding dispute inter court’s of tortious However from harassment. greater Rather, up may he the First than sets allowed be no conduct. ference overriding immunity pro necessary protect Amendment a wall tecting liability prop public for newsmen from interest. Mrs. Onassis gathering figure erly public their news. to be a and thus conduct while found subject coverage. scope v. is no such tо the First to news See Sidis There right. Publishing Corp., Amendment and torts R. 113 F.2d 806 Crimes F. cert, 711, gathering Cir.), denied, 61 committed in news are not 311 U.S. protected. 393, (1940). Branzburg Hayes, None L.Ed. 462 See 408 S.Ct. 85 v. theless, beyond 665, 2646, Galella’s action went far U.S. 92 33 L.Ed.2d 626 S.Ct. (1972); gather Metromedia, Rosenbloom reasonable bounds v. 403 of news ing. weighed 29, 1811, de When U.S. 91 29 S.Ct. L.Ed.2d 296 daily (1971); public importance Time, Inc., minimis Dietemann v. 449 245, (9th defendant, F.2d activities of the con- 249-250 See 11, supra. Ingraham, (2d Cir., 12. See n. Roe v. 480 F.2d 102 Although 1973), (Friendly, J.) the New York courts have not yet recognized right privacy, provides protec- While the common law Constitution required specific question, privacy if we were to reach the tion we manifestations “ agree protection person’s general . would be inclined to with the court be . . aof again right privacy right by low that when faced the issue the to be let alone —his may Appeals modify people protection prop- well other is or distin like the of his guish erty very holding largely in 1902 Roberson v. Roches and his life left to the law of ” Folding-Box Co., 538, Katz, supra, ter N.Y. 64 individual states. . . 171 N.E. . (1902), right priva 350-351, 511, citing 442 that “The so-called 389 U.S. at 88 S.Ct. at cy yet place Brandéis, Right abiding Privacy, has not as found an Warren & 4 Harv. jurisprudence.” (1890). our There L.Rev. 193 substаntive support today proposition majority priva recog- for the vast of states have now cy right” protect right legal protec privacy. nized and “basic entitled to Re- tion, Hill, 374, 415, 652(a), statement v. 385 U.S. 87 of Torts 2d Time S.Ct. comment a § (Tent.Draft 534, (1967) J., Statutory protec- (Fortas, 13, 1967). 17 L.Ed.2d 456 dis No. “power , right senting) can the of a tion has been nor State con New York afforded remedy imposition through [even] trol and such intrusion criminal sanctions gathering purposes privacy through news ... be denied.” invasion of use 404, (Harlan, J., wiretap eavesdrop- Id. at S.Ct. 550 con mechanical devices for 87 curring Privacy dissenting). ping tampering private essential and for with certain dignity personal liberty to individual un §§ communications. New York Penal Code rights guaranteed (McKinney, 1967). derlies the fundamental 250.00-250.35 Rights. States, Although recognizing right privacy the Bill of Katz See v. United 347, 5, except 507, statute, 389 n. L.Ed. U.S. 350 88 S.Ct. 19 as such as defined the New many (1967) ; Shott, 2d 576 Tehan v. U. ex rel. York courts have softened this rule S. 406, 416, liberally applying 459, recognizing U.S. 382 86 15 L.Ed.2d cases S.Ct. (1966) (Fifth Amendment) ; Stanley 453 v. freedom from emotional distress as a Georgia, 557, 564-566, Long 394 U.S. tectable See v. Beneficial 89 S.Ct. interest. 1243, (1969) (First 11, York, 22 L.Ed.2d 542 A.D.2d Finance of New Co. Amendments). 664, (1972) ; Fourteenth Seе also Time v. Halio N.Y.S.2d 667-668 Hill, supra, 412-415, Lurie, 62, 759, 385 U.S. at S.Ct. 15 A.D.2d 222 N.Y.S.2d 763- Privacy 534; Bloustein, Aspect (1961) ; An As v. Associates Dis- Callarama Dignity: Delaware, Corp. An Human Answer to Dean Pros count 69 Misc.2d ser, Fried, (1964) ; (1972) ; Bertolotti, L.Rev. N.Y.U. N.Y.S.2d 711 Ruiz Privacy, (1968). (1962), aff’d 77 Yale L..T. 482ff Misc.2d 236 N.Y.S.2d emerging recognition privacy There is an N.Y.S.2d 1003 mem. 20 A.D.2d constitutionally distinct, protected right. (1963). as a Wyman, 1075, 652(f), com- 453 F.2d 2d of Torts § Restatement cert, 944, 1971), denied, 13, (Tent. U.S. k Draft No. ment (1972). press in Wheth 40 L.Ed.2d 815 free S.Ct. to a There is no threat to remanded was er the claim be was agents the requiring to act within discretion after con within the court’s law. judicial economy and fair of sideration to his substan In addition litigants. Minework United ness challenges claims, the court’s tive supra, Gibbs, ers v. U.S. (b) case; (a) to the refusal remand remand was The motion to S.Ct. despite jury an trial refusal allow after dismissal six months made request; (c) untimely of Ga exclusion against agents of and on the eve the suit (d) deposition; defendant’s lella from trial; States Government United (e) himself; consoli failure to recuse case,15 in then intervened had injunctive pro temporary dation of the hearings on of the substantive series ceedings Nu and trial on the merits. federal heard had been claims evidentiary merоus claims of error in charge court, special dis of master ‍​‌‌​‌​‌​‌‌‌​‌‌​​‌‌‌‌​‌​‌​‌​​​‌​‌​‌‌‌‌‌‌​‌‌‌​​‌‌​‍rulings also raised. need be Little covery appointed number and a had been evidentiary said most of these about heard, others motions had been rulings rulings;13 were clear either pending.16 unfair As no claim of were ly error, or if correct harmless.14 Ga raised, considerations ness been has procedural lella’s claims must fail. support judicial economy govern remand. motion to court’s denial of the against Galella’s claim Mrs. great judicial been had A deal of effort Onassis, originally in federal court as covering ground expended must joined against an action with that gone been or be over had remand anew agents, Secret Service auto was not dered. matically stripped pendent federal jurisdiction by Untimely jury requests dismissal of the claim agents. United Mineworkers trial must unless some cause be denied Gibbs, beyond U.S. 86 S.Ct. shown. mere inadvertence (1966); 16 L.Ed.2d 218 see Steamship Co., Almenares Noonan v. Cunard (a) propriety testimony availability light plaintiff experts The defendant’s plainly photography. as to mental distress —this was ad- harassment; (b) missible claim of ruling 14. The on the affidavits of the children admission the children’s affidavits into evi- may light well be the over- error but questionable dence—this was since the chil- surely whelming proof ruling other dren longer were not shown- no avail- harmless. ; (c) hearsay able the admission of the declar- presence 15. The United in the case States’ tion clearly of one of the children —this was created real threat of two trials —one fed- admissible to show the children’s reaction operative eral and one facts state —on same antics; (d) the admission if the claims remanded. Onassis-Galella were record investigation— of the Secret Service government would remain fed- claim it was conceded that this was made in the predominance eral court. state law While regular business; course of Secret Service proba- questions factor, important is an (e) impression the admission of defendant’s bility of two has been trials on same facts understanding of a card received from generally weigh in deemed favor sufficient Galella —since her state mind was at issue retaining jurisdiction; Note, pendent Fed- properly admitted; (f) this wаs plaintiff’s denial of Subject eral Pendent Matter Jurisdiction— request produce a statement The Doctrine of United v. Gibbs Mineworkers made to defense counsel wit- defendant’s Party Not the Juris- Extended Persons ness, Duehin —no use was made of the state- diction-Conferring Claim, 73 Colum.L.Rev. trial; (g) ment in the failure to an in- draw (1973). 165-67 testimony ference of unfavorable from the fail- temporary ure of defendant restraining to call her husband a wit- 16. Two orders had been surely summary issued, protective ness—such an made, inference was com- two orders pelled here; (h) judgment granted refusal to direct defense motions heard and one produce expert approximately counsel to product work other made witness’ fourteen motions ruling may pending. be sustained in the and some were still —the (2d 1967). explains irrepressible F.2d 69 Galella be deemed to reflect both an Cir. making delay request plaintiff’s intent to continue harassment disregard proceedings complete result of the of defendant and removal judicial process. require Anticipation not mis- fact that New York does during jury request Pre- conduct a written for a trial. could examination reasonably cisely allegations same were made have been founded on either. correctly rejected in Leve General v. The court’s re refusal (S.D. Corp., F.Supp. Motors cuse himself correct. was See United N.Y.1965). No in re- error was made States ex F. Smith, rel. Brown v. fusing to excuse the untimeliness of the Supp. 885, (D.Vt.1961), on rev’d motion; any other decision would have grounds, (2d other 306 F.2d 596 Cir. Noonan, been su- reversible error. See 1962), denied, cert 372 U.S. 83 S.Ct. pra, 375 F.2d at 70. (1963); 10 L.Ed.2d 11 United deposi Circumstances of a Ross, States v. Sclafani and 487 F.2d may governed by pro tion be the court’s judge may 245 at 255 Cir. A may tective order. The court order that disqualified only be for bias on motion “discovery be conducted no with one supported by a written affidavit facts present except designated persons by the supporting the claim of bias and a cer 26(c). court.” Fed.R.Civ.P. The extent good tificate of faith from the counsel authority the court’s determine record. 144. U.S.C. Galella § present enlarged by those was the 1970 comply statute; failed to with the no Discovery. revision of the Rules of Pri- showing legal was made of a basis for the 30(b) revision, or to the Rule allowеd claim, no motion was made nor affidavit discovery court to order to be conducted court, requests filed. Informal present except parties “with no one comply or failure to with the be statute to the action and their officers or coun expectation denial, cause of an how ” revision, sel. . . . In view of the founded, ever well cannot be substituted it power is clear that the court has the compliance § party,17 although to exclude even such claims that notice rarely exclusion should be ordered in given him of Rule consolidation under deed. 65(a)(2) preliminary injunction pro grant pro The and nature of ceedings inadequate the trial was singularly tection is that he not within the discre was advised of the consolida sufficiently tion advance of trial tion may re be district properly prepare. The claim borders only showing versed on a clear of abuse required the frivolous. The notice un of discretion. Chemical & Industrial solely purpose der 65 is Rule Corp. Druffel, (6th 301 F.2d hearing alerting parties 1962); Corp. v. Eastern Wire Essex be the final determination ac Co., Electric Sales 48 F.R.D. Moore, See 7 J. Federal Practice tion. (E.D.Pa.1969). might have While we be Galella knew five weeks 65.04[4]. [[ dif assessed the need to exclude Galella pre fore trial the actions on the ferently, find rul we cannot the court’s injunction liminary permanent had ing clearly At erroneous. the time no been There is thus consolidated. issued, order had already^ sufficiency of no merit an attack on charged been with violation of court’s tice under Rule 65. restraining temporary order which was challenge Essentially protect defendant entered process; he of due contends could one denial further Such conduct harassment. calling protect party. Moore, appropriate Fed- ed See The order is the de- J. ponent eral Practice from embarrassment or ridicule intend- 1J26.73. change voluntary tech in his scheduling no un trial court’s expected. court! nique New York can preparation for trial. fairly limited his generally deposi sufficient found similar conduct have is based claim injunctive relief. support discovery not a claim for either made tions and Nierop, dis lack 56 Misc.2d completed.18 Here Flamm Vаn (1968).20 dila covery plaintiff’s own N.Y.S.2d 189 291 was due actions; for tory error not it was injunction, however, is Lilly Eli & Co. proceed. See required protect broader than is 1096, 1105 Drug Sales, 460 F.2d Generix pro Relief must be tailored to defendant. joined and (5th was Issue “paparazzo” tect Mrs. from the Onassis 1970, by September, counterclaim filed distinguishes attack be Galella’s October, 1970. in and the ease removed photographers; havior from that of other trial in 1972 Yet the time even infringe unnecessarily it should not depo yet noticed had Galella effors defend reasonable “cover” (a witness sition defendant’s husband Therefore, modify ant. we court’s deprived depos says he was Galella prohibit only (1) any approach order to scheduling.) ing by the twenty-five (25) within defend feet any touching person ant or Scheduling trials is for Jacqueline Onassis; (2) any defendant Only and sub actual courts. where trial blocking places of her public in movement a prejudice be shown will can stantial thoroughfares; (3) any and act fore be reviewed. calendar orders court’s seeably reasonably place or calculated to showing. He such has made no Galella safety the life jeop and in defendant requested in Octo consolidation himself ardy; (4) any and conduct which would ber, 1971; was withdrawn that motion reasonably harass, be foreseen to alarm 1972; January, in in the court however frighten or the defendant. pro it dicated that consolidate would ceedings plaintiff defend as both the Any restriction on Ga further go planned to requested, ant had selling pictures taking of de lella’s space opened on his trial soon a as as coverage however, is, fendant for news notice had weeks’ Galella five calendar. improper by the and unwarranted evi n expected date of trial. Hemingway dence. See Estate House, 726, Inc., Random 49 Misc.2d Injunctive appropriate. relief is 531, 535, N.Y.S.2d aff’d A.D.2d con has his intention to stated (1966); Youssou N.Y.S.2d 366 long coverage tinue of defendant poff Broadcasting, v. Columbia 41 Misc. newsworthy, continued she and his as 701, 704, 2d 244 N.Y.S.2d aff’d 19 temporary re (1963); even harassment while the A.D.2d 244 N.Y.S.2d 1 Thompson straining Sons, indicate v. C. P. orders in effect Putnam’s were 20. The in Flamm of time to review the defendant was sued for in- claim of lack patently deposition tentional infliction without of emotional distress. He defendant charged having deposition plain- with was taken dashed at the merit. The initial threatening public prior trial; tiff in a a second session on manner month various places questions previously threatening gestures, grimaces, with raised unanswered days leers, malign looks, six before distorted faces and the first session was held accom- . panied by laughs, trial. ridiculous utterances driven his behind automobile that of deposition persons Of the four noticed plaintiff dangerously distance; close trial, within weeks three were six Secret walked behind or beside or in front of the from, agents to Galella the com- Service known plaintiff public streets; on the and consist- fourth mencement of the suit. The witness ently telephoned plaintiff at home and December, 1971; known in there was made hung up place of business and or remained testifying surprise in his and he was was no fully line in silence. at trial. cross-examined 227, 235, 411, 416, 13 379 U.S. N.Y.S.2d S.Ct. Misc.2d (1964): L.Ed.2d 240 (1965). “We do not read that Rule [Rule Likewise, we affirm (d)] giving judges district unre- govern injunctive relief to grant of strained discretion to to re- tax costs in action prohibit modified to ment winning litigant every imburse agents’ terfering Secret Service expense he fit in the has seen to incur may be thus protective duties. proposed conduct of his case. Items entering children’s (a) enjoined from winning parties al- as costs should engaging in areas; (b) play or schools given ways scrutiny. Any careful reasonably foreseen or calculated action practice great other would be too safety well or be place children’s sys- movement the direction of some threaten ing jeopardy, which would willing, jurisprudence that are tems taking any injury; (c) physical or create anxious, litiga- if not indeed to allow reasonably fore be which could action high discourage tion so as to costs frighten alarm, harass, to seen litigants bringing lawsuits, from no approaching children; (d) and might they matter how meritorious in (30) thirty children. feet of the within good faith believe their to be.” claims daily of a Taxation costs modified, granted fully As relief may transcript assessed trial be opportunity photo- allows Galella the they court, against party where graph report pub- and on Mrs. Onassis’ “necessarily use in the obtained Any prior lic activities. restrаint See Oscar 1920. case.” 28 U.S.C. § gathering fully news is miniscule and Lumbermens Mutual Cas & v. Gruss Son supported by findings. 1970). Co., ualty Cir. F.2d part, Affirmed in part reversed in and pay the cost of was ordered Galella judg- remanded for modification of the daily gov copies, one each for four ment in opinion. accordance with this court, ernment and intervenor and the appeal Costs on taxed in be favor two for To the los defendant.21 assess appellees. ing party premium daily with the cost transcripts, necessity beyond the mere — TIMBERS, Judge (concurring Circuit convenience of counsel —must shown. be part dissenting part): Valley Supply Delaware and Marine v. Co. Co., F.Supp. 560, American Tobacco With one I exception, concur in the (E.D.Pa.1960). say We cannot that judgment of the and in Court the able showing no such has been made here.22 opinion majority Judge Smith. not, however, any jus There does appear allowing multiple copies tification With the utmost deference to re- spect my colleagues, defendant. Galella therefore however, I am should not be taxed for more than the constrained judg- dissent from the transcript cost daily at the rate for ment of majority opin- Court and the copies, three defendants, one for ion to modify one extent that injunctive for the intervenor and one for the court.23 relief necessary found See Farmer v. Co., protect Arabian American district Jacqueline Oil court to Onas- Transcript 21. prejudice costs taxed Where no will result from un- $17,561.80. timely amounted costs, may motion to retax the court comply 6(d)’s excuse failure with Rule primary 22. While the two witnesses had been five-day period. motion See United , States extensively deposed prior to trial the sub- Kolesar, (5th F.2d n. 1 Cir. previously stance of the case had been heard 1963). proper gov- It was thus to allow the summary judgment motions, the amounts ernment’s motion to retax. large, claimed were the trial consider- length, credibility able crucial. children, repeated necessitating application B. and sis and her Caroline Hence, Jr., Kennedy, must from the continued the Court. restraint John F. clear, self-proclaimed simple predatory be effective conduct compliance paparazzo substantial cannot Galella. sеriously disputed be unless violation I to be com- We start with take what occurs. ground court has mon that “a district determining enjoin major importance possible fu- Of broad discretion to past scope ture law where viola- of the relief to be violations of afforded shown”; “the has here is attitude which Galella tions have been process permanent demonstrated toward the court’s determination [that injunctive required] past. should not in the blatant- relief is this restraining appeal ly orders of unless there has violated our disturbed discretion”; He been and December a clear October 8 abuse seeking party deliberately to overturn the did so and in full knowl- that “the edge discretion has the fact of his violation. His court’s exercise of district showing subpoe- the court disobedience to the the burden of deliberate jus- attempts burden discretion, and the na to obstruct abused that and his heavy G, necessarily respect one.” tice with Exhibit to- SEC Nursing Centers, Inc., gether perjury 458 F.2d infected Manor (2 testimony, mere That certain- do not warrant 1082, 1100 ly And is the settled law this Circuit. token relief. 52(a).

it command of Fed.R.Civ.P. is the light repeated In misbe- of Galella’s strong havior, only case, In week it is clear that the instant after a six testified, injunction hun- will trial at 25 witnesses restraint —an which which clearly protect rights Mrs. dreds of were received and Onassis’ exhibits Judge 4,714 page compiled,- quibbling record was and leave no room for about careful, Cooper comprehensive compliance filed a and no room for evasion opinion, page ‍​‌‌​‌​‌​‌‌‌​‌‌​​‌‌‌‌​‌​‌​‌​​​‌​‌​‌‌‌‌‌‌​‌‌‌​​‌‌​‍F.Supp. appropriate in this circumvention —is findings meticulously sets forth detailed case. of fact and conclusions of law. As away from ing dissent), sons for dren provisions (from these Judge Cooper stated his rea- the modification of which Mrs. Onassis -to provisions keep injunction certain distances as follows: and her chil- requir- I plaintiff restraining order, distances heretofore had scribed, As for the actual clearly we never must -X- moved to explicitly ^[*] even after the bear distance -X- imposed by in mind that invited modify be Court him our reasons, injunc- practical prove if it too “For do so he could was Proceedings (Minutes, harsh. tion cannot be Janu- couched terms 31).” F.Supp.

prohibitions leaping, ary p. upon hiding blоcking, taunting, grunting, at 237. abstract and the like. Nor have foregoing I have set forth the ex- endangering— concepts harassing, — planation by Judge Cooper rea- of his proved relief effective workable. No provisions critical distance sons fixing possible without seems injunction they are because proscribed distances. findings judge weighty by the trial who seeing parties had be- must moreover make certain the benefit We enough sufficiently obviously plaintiff keeps him in a far fore who judge away compli- position problems their better than we to to avoid injunction injurious very strongly that such demeanor. I feel ance with the findings concerning Disputes should not be set aside or dras- disobedience. thereby tically compliance may our unless frequent, modified be they clearly erroneous; I do not majority’s But here is what the modi- majority suggest provi- understand the fication of the critical distance injunction are. sions has done:

DISTANCES GALELLA AS PROVIDED IN AS BY MODIFIED REQUIRED IS TO DISTRICT COURT COURT OF APPEALS

MAINTAIN INJUNCTION MAJORITY From home of Mrs. her

Onassis and yards children No restriction only From Restricted children’s yards entering schools from play schools or *

areas From and not Mrs. Onassis feet personally yards touch her From children persоnally * yards feet modifying 52(a), majority the distance Fed.R.Civ.P. In addition to simply injunction, the ma- sets them aside and substi- restrictions jority perimeters also has directed that Galella tutes carefully own for those blocking prohibited wisely Mrs. Onassis’ drawn thorough- public places district movement in and court. ; “foreseeably any or rea- fares from act (2) results, example, This for in a sonably place Mrs. Onas- calculated” wholly unexplained anomalous and (and jeopardy safety in sis’ life and reduction of the distance 84% children); respect similarly to her with keep away required any would “rea- from conduct which and sonably (from. yards from Mrs. Onassis 50 harass, or alarm be foreseen” feet), equally implausi- to 25 and an (and similarly frighten Mrs. Onassis ble reduction of the distance 87% children). respect with to her required keep away he is (from yards children 30 the 75 major- I the deference, believe With - feet). ity’s injunction in of modification the respects un- indicated above to be the (3) in It further results no restriction Briefly warranted and unworkable. against hover- whatsoever following summarized, the are the rea- ing of at the to the home entrance my for from thе modifica- sons dissent children Mrs. Onassis her injunction: tion of the (where agoniz- he caused such has ignores weighty ing majority past), (1) in or The findings humiliation the at 'by the children of district court. With- schools attended erroneous, —just physically holding clearly en- he does not

out them * granted injunc- pointed majority appears below, It not so limited. As out tion was protection injunction, by of the children to have lim- tive relief for further modified the by iting protection specifically prayed Onassis. Mrs. as of the children majority, injunctive government “grant as introduced of relief to the The distinction substantially prohibit below, interfering reduces the modified to action indicated provided agents’ protective for the children. with Secret duties.” tection Service injunc- (emphasis added). The district court

1002 jeopardized past in has lella play This or areas. ter their schools safety of Mrs. Onassis lives and an invitation me strikes and has done so and her children trouble. previous restraining or- the teeth of substituting

(4) its majority, of court. ders the district One injunctive provisions for those own findings weighty particularly court, its has couched of the district support the district court prоhibitions conduct in terms granted injunctive scope of relief reasonably “foreseeably calculat- or blatantly was that “Galella violated endanger safety life or ed” to restraining 8 our orders October children, or or her of Mrs. Onassis 2, and December He did so “reasonably be conduct would which knowledge deliberately in full harass, fright- alarm foreseen” fact violation.” them, added). (emphasis These en F.Supp. at has been 237. Our Court just concepts the sort abstract particularly dis- adamant the district court found to be grant turbing a district court’s F. unworkable ineffective. injunctive parties relief when the comply Supp. They do not enjoined “continued violate specificity requirement even after a consent . laws 65(d) (“Every order Fed.R.Civ.P. enjoining decree entered had been granting injunction them from conduct” and when such ."). specific in terms. . . shall “[t]hey persisted have in their con- This our been construed has past tention that their conduct was require party “the en- improper v. . .” . . SEC joined must to ascertain be able (2 Koenig, 469 F.2d Cir. the order from the four corners of citing MacElvain, 1972), SEC precisely acts are what fоrbidden.” cert, (5 1969), F.2d Cir. v. Air Line Pilots Associa- Sanders (1970), denied, 397 U.S. 972 (2 1972). tion, F.2d Cir. Centers, Nursing SEC v. Manor Longshoremen’s See International supra. Inc., Philadelphia Marine Association v. Association, Trade 389 U.S. (6) aside, All else fair- wisdom (1967); Brumby Metals, Inc. restrictions ness of the distance Bargen, (7 F.2d provided which the district justi- The district court permanent injunction— fiably concerned —in view Galel- substantially to which are identical outrageous disregard of la’s record restraining temporary those in its restraining previous the court’s of 2, order of December 1971 and orders —that it would be confronted 20, July in until which were effect applica- repeated compliance with appear the to out be borne 1972 — majority’s tions in the future. request the failure of Galella ever to substitution of such abstract con- modify such restric- district court to cepts “reasonably foreseen” as tions, despite express invitation- the “foreseeably for the calculated” do to Galella to of the district court clear, simple and distance effective to for actual distance so: “As the in- restrictions in the district court proscribed, in mind we must bear be virtually junction to to sеems me modify plaintiff never moved to that compliance disputes assure the imposed the distances heretofore sought wisely to the district restraining order, even after our avert. explicitly clearly and the Court had modifying injunctive (5) do if he could In the relief invited him to granted by prove F. court, I fear too harsh.” the district it was majority Supp. the dis- the the has overlooked at 237. Pursuant 5, July Ga- court’s the record shows that trict decision fact injunc- provided tion requesting that the form of for the children to the notice, “grant injunctive days settled on three tion be relief to the judg- government proposed prohibit sides submitted both modified to any interfering in ments which identical all were action with Secret material; agents’ respects protective neither in here Service duties.” judgment (emphasis added). proposed Supra p. his form of nor accompanying in paragraphs his memorandum Just two before interpose any objection this, majority it did Galella the has modified the injunction prohibit to the distance restric- whatsoever ground they engaging types tions on were the four in conduct dis- Jacqueline too harsh onerous. Since the directed at “defendant Onassis”, trict court never was afforded an no with mention of the upon ques- opportunity pass yet such And children. Id. the claim for injunctive sought first are raised the tions which relief in the coun- appeal, compelling I time see no terclaim filed March 1971 was long departing explicitly personal from the safety reason “for the in such settled rule this Circuit that defendant and of [Mrs. Onassis] by us judgment matters not be reached her should infant children”. The appeal. Ring League July provided, v. Authors’ entered in America, (2 paragraph injunctive 186 F.2d relief (L. Cir.) Hand, party’s protection J.: “If for the C. of Mrs. Onassis tender, children; only sensibilities are so least both of her the government we must reference injunctive is make demand that he complaint provisions judg- known when at a time cert, subparagraph (viii) remedied.”), ment it can denied is be Ring paragraph enjoin- Spina, sub nom. 4 where is U.S. (1951); interfering ed from “otherwise United States Five with Cases, agent any (2 Cir.) 179 F.2d 523-24 United States of (Swan, performance aff’g judgment J., America C. entered jury relating on Hincks, tective verdict after trial Caroline before duties B. cert, Kennedy Kennedy, D. or Jоhn F. J.), denied, U.S. Jr.” (1950). very least, majority’s I As read the At if modifica- tion injunction, there to be is extent modification injunction distinguishes protec- that it respect between provisions (and tion for distance Mrs. Onassis I and that for believe warranted), children, limiting is none then the latter to case grant injunctive should remanded to the district relief to obviously court which government, in a far net is effect position strip better any protection deter- children make such hearing injunction minations after under than are after reach age possible we. After all, protection by what 16 when their basis ap- there this record for us Secret Service ceases. U.S.C. pellate judges say (1970). Caroline, to that For who 3056 § keep feet, 27, 1957, should 25 rather than 50 was born November this yards, away Onassis; birthday from pres- Mrs. one of means that her feet, that he should remain 30 rather away— than two ents—less months yards, away than 75 from the chil- exposure to the resumed will be dren? paparazzo predatory of the conduct totally will who be unre- (7) Finally, utterly I am unable find to by respect strained with to her the any jus- basis in the record or injunction by as modified the ma- tification a of аs matter law for the John, jority. majority’s For who was born No- modification of the in- junction 25, 1960, only vember protec- as he limit has to the three exposure. again”1 for similar from of en years to wait this denial Court’s they children, panel before strip decision. banc reconsideration of a these To protec- dissenting they majority, opinion, of the In their have their reach recognized ap- injunction of Unit- not that en banc review is tion below, simply propriate is dis- to resolve mere Court a District ed States by agreement their mother with outcome reached deny them and to to dissenting panel they en- a of this Our very Court. least which note, they however, find brothers that the law. under titled merely in this ease not an erroneous de- respectfully I most dissent. question un- a cision but substantial FOR REHEARING PETITION ON importance. Wholly usual aside proper it for the our whether having view rehearing been petition a A panel modify de- the district court’s appellee by Jac- filed herein counsel agree cree, cannot with their assess- we Onassis, queline importance question ment of the thereof, is Upon it consideration before us. рetition and it be that said Ordered Although sympathize we hereby denied. is plight Onassis, hardly of Mrs. it need be Judge, TIMBERS, votes Circuit importance stated that decision rehearing. grant petition for litigants does not turn whether recogni- limelight public stand in PETITION FOR RE- ON anonymity. in, tion or the shadows BANC HEARING EN Rather, significance prece- rests on the containing rehearing petition for a A impact dential a determination suggestion reheard action be likely this on the future Court have having by coun- herein en filed banc been course of the law and hence on the lives Onassis, Jacqueline appellee and a sel for of countless others. regular poll judges serv- active perspective, having request When examined from this ice been taken on Kaufman, quite panel’s it judge, Judge clear decision such a and Chief Feinberg, Judges Hays, does not the threshold of im- Friendly, rise to Circuit portance Mulligan requisite having en banc reconsid- voted to Mansfield Judges To deny petition, eration. be of what sure issue and Circuit having appropriate grant constitutes the voted to standard for Oakes and Timbers appellate per opinion petition, review of the of an in- curiam terms junctive Judge important. opinion decree is indeed Timbers and an Circuit And, filed, panel having if the had recast the tradi- been yardstick test tional into a other than thereof, Upon it is consideration abuse wide discretion accorded the petition and it Ordered said formulating decree, district court hereby is denied. States, International Salt v. United Co. PER CURIAM: 392, 400-401, 92 L. U.S. S.Ct. have, (1947); Our Ed. brothers Oakes and Timbers United States v. Na- Co., it, 319, 335, Lead characterize “once tional dissented U.S. (2 1972), dissenting granted, three cases cited our Cir. eert. broth U.S. (1973), ers as 93 S.Ct. illustrative our failure “be more L.Ed.2d 585 only gingerly declining prove the as a full indeed about to act wisdom our careful upon selectivity. burgeoning ruling questions substantial At time of calen un dars, importance,” Jacque recognize we usual Eisen do well least those Carlisle & tarry lin, (2 1973), F.2d which ‍​‌‌​‌​‌​‌‌‌​‌‌​​‌‌‌‌​‌​‌​‌​​​‌​‌​‌‌‌‌‌‌​‌‌‌​​‌‌​‍should in this 1020-1026 cases cert, many during proceedings granted, 908, months en 235, banc 414 U.S. 94 S.Ct. 38 by (1973) ; Supreme Village 146 when resolution is in L.Ed.2d Boraas v. 806, (2 Surely Terre, insight Belle F.2d evitable. our was confirmed 476 824-827 Cir. juris, prob. noted, 907, agreed 1973), highest 414 94 review U.S. S. when our Ctr'234, panel (1973) ; in the L.Ed.2d cited cases. 145 Zahn decisions Paper 1033, Co., International F.2d 1040- 1634, (1947), S.Ct. then L.Ed. 2077 tect Mrs. Onassis and her children from responded toowe would have affirma- predatory the continued conduct of Galel- tively request to a en banc review. for. la appellate constituted an unwarranted Although But it did not do this. several interference with the district court’s dis- may cretion, members the Court especially dislike any suggestion absent result, principle by majority embodied the ma- weighty that the find- jority’s opinion departure ings is not a clearly of the district court were the established rule. recognize stage Since we foresee erroneous. We at this precedential impact minimal case, however, de- this that an en banc re- cision, properly hearing we normally granted because con- will not be “ sparse judicial cerned that the ‘merely’ injustices resources to correct individual expended this Court should not be un- Eisen, supra, or mistakes”. 479 F.2d at necessarily particularly ques- where clearly panel When a 1021-22. erroneous — importance tion is not of unusual decision as here is rendered in the con- —re- question consideration of the en coupled banc text of—or is with—a substan- wholly would be questiоn unwarranted. importance, tial of unusual then ripe we believe the case is for en banc TIMBERS, Judge, Circuit with whom reconsideration. OAKES, Judge, (dis- Circuit concurs appear There would to be senting few issues rehearing from denial of en banc): recurring more vital and of more im- portance in the administration of federal again, although Judge Once Oakes justice appropriate by than the standard I have voted in favor of en recon banc appellate which an court reviews the panel sideration of the 2-1 decision grant permanent injunctive or denial of case, this we have been unsuccessful in by relief a district court. Are we bound mustering majority vote of the active by 52(a) command Fed.R.Civ.P. judges recognize to do-so. While we that “[fjindings of fact shall not be set may fighting guard we a rear action clearly aside unless erroneous”? Or are attempt persuade in our our col appellate judges, we free as slightest without the leagues gingerly to be more about de doing in the record basis for- clining ruling up to act as a full court in so, injunctive pro- substitute our own questions on substantial im unusual visions for those оf the district court? portance, given we nevertheless have not respect panel majority, due With up hope. Moreover; pattern has beyond dispute we believe that it is emerged from recent situations similar appel- there here was an unwarranted quite See, g., clear. e. Eisen v. Car late interference with the discretion of Jacquelin, 1005, lisle & 26 cert, 479 F.2d 1020- judge fashioning the trial relief (2 based 1973) (en 5-3), denied, Cir. banc upon hearing all all facts after granted, (U.S. 42 U.S.L.W. 3226 testimony judging and after 15, 1973); Village Oct. Boraas v. of Belle demeanor of all of It is the witnesses. Terre, (2 476 F.2d 824-27 Cir. wholly on the basis of un- excessive 1973) (en denied, 4-4), juris, prob. banc appellate warranted intrusion into noted, (U.S. 42 U.S.L.W. 3226 Oct. operations traditional area of trial court 1973); Paper Co., Zahn v. International that we believe this case cries out for (2 1972) 469 F.2d 1040-42 en banc reconsideration. (en denied, 4-3, banc 4 in i. e. favor of cert, banc, against), en granted, appellate par- Such intrusion here is (1973), aff’d, U.S. 925 42 U.S.L.W. ticularly by the fact exacerbated (U.S. 17,1973). Dec. restraining temporary district court’s I already have 8, 1971, stated F.Supp. as best I can order of at October my panel dissent, very F.2d at 200 n. which was similar to majority’s majori- reasons I panel believe the modi- decree refashioned injunctive ty fication of the appeal, already relief found had been deliberate- necessary by ly F.Supp. the district court to violated Galella. past undisputed It that in 237-38. safety jeopardized he lives and had and her children Mrs. Onassis previous re- had straining the teeth done

orders the district court. Moreover, im- it we believe inconsistency

portant the internal to note panel majority’s condemnation outrageous dangerous of Galella’s her Mrs. Onassis and conduct toward hand, one ef- children protection fectively stripping them Judge, Mulligan, filed Circuit dis- injunction on the of the district senting opinion. including wholly incomprehen- other, any protection what- sible elimination they reach children after

soever age 16. short, here, suggested year In as we

ago supra, Zahn, 469 F.2d at “The record in this case strikes aas [us] good

particularly one re- important The facts

solve this issue. legal dispute. question is The

are not starkly presented. re- issue important is both and sure re-

solved

cur.” respectfully dissent from the denial We rehearing en banc.

HAYS, Judge, Circuit votes joins in

en banc reconsideration but nei- opinion.

ther ex rel. Nathaniel

UNITED STATES Petitioner-Appellant, WILLIAMS, LaVALLEE, Cor Warden Clinton

J. E. , Facility, rectional Dannemora ‍​‌‌​‌​‌​‌‌‌​‌‌​​‌‌‌‌​‌​‌​‌​​​‌​‌​‌‌‌‌‌‌​‌‌‌​​‌‌​‍Y., Respondent-Appellee. N. 132, Docket

No. 73-1720. Appeals,

United States Circuit.

Second Sept. 20,

Argued 1973. Nov.

Decided April 1, Denied

Certiorari

See 94 S.Ct. 1622.

Case Details

Case Name: Ronald E. Galella v. Jacqueline Onassis, John Walsh, and United States of America, Intervenor-Appellee

Court Name: Court of Appeals for the Second Circuit

Date Published: Nov 13, 1973

Citation: 487 F.2d 986

Docket Number: 260, 618 and 619, Dockets 71-1902, 72-1993 and 72-2312

Court Abbreviation: 2d Cir.