*1 598 аppeal. procedure, It to satis- more formal in their was sufficient of-
of the given fy provision constitution.18 ten of the effect to a misdirected notice though Moreover, dispute appeal, there is no even it relates to day Bey jurisdiction.20 copies sent of this let- same appeal president the At- ter of Bey his We conclude that did invoke presi- lantic Coast District and to available union remedies without obtain- sepa- International,19 and a dent of ing a final decision calen- within three president At- of the rate letter dаr months and therefore was entitled to expressing de- lantic District Coast complaint Department make his sire to seek intra-union relief and provided of Labor as 402 of § any questing that he be furnished court, therefore, district Act. The erred necessary “complete and information dismissing Secretary’s complaint appeal. received resolve” He reaching without the merits. any answers to of these letters. The order of the District Court will Bey sought explain why directed he be reversed and the case remanded president proceеdings his letter to the instead further this consistent with secretary opinion. of the District He Council. secretary said that did so because the participated had Lo- as a member of the
cal’s Board in its adverse de- Executive complaint.
cision on his need not We sufficiency explana-
decide the of this president
tion since the the District Bey’s timely
Council received letter of appeal. union, Members aof however America, UNITED STATES of procedure ap- well informed its Plaintiff-Appellee, peal, agency deal not with an outside v. whose interests are hostile to theirs but DIBBLE, Defendant-Appellant. M. E. with their union own which should seek No. 23091. griev- disposition to reach a of their pro- ances on the merits rather than on Appeals, United States Court of cedural technicalities. The District Ninth Circuit. through Council received the notice 6, July 1970. president appeal and the therefore fully as effective as it have been would if the notice had been sent to the secre-
tary.
justice,
Courts of
which are much
Jacques
1418, I.L.A.,
Wilkins,
(2
1964) ;
18.
1,
Sec
v. Local
su
335 F.2d
4-5
Cir.
pra
15; Ferger
States,
52,
n.
v. Local
Int'l
483 of
54
Halfen v. United
324 F.2d
Bridge, etc., Wkrs.,
F.Supp.
(10
1963) ;
States,
Ass’n
238
Cir.
Riffle v. United
1016,
(D.N.J.1964),
per
(5
1962) ;
1021
aff’d
curiam
v.
let the 11 acres Dibble written Army. approved contract claimed it Government eject entitlеd to Dibble because it had County’s master *3 terminated the license for of breach conditions licensing agreement. joined Issue was question on the whether or not the Coun contract, giving ty had breached its the right Government a to terminate the (argued), Leo M. Cook A. B. Broad- that thе master license.1 Dibble claimed dus, Ukiah, Cal., defendant-appel- for estopped eject Government was lant. ing parcel by him from the 11-acre rea Jacques Atty. (argued) B. Gilin Asst. agents. son of of acts some the of its Gen., Kashiwa, Dept, Justice, Shiro of argued estopрel The that Government C., Washington, Spurr, D. Brunner & against would not lie it as a of matter Nelson, Cal., Ukiah, Browning, James L. law. Atty., Francisco, Cal., U. S. San prove County To the that in plaintiff-appellee. breach, the offered a Government series of exhibits to an attached of BARNES, HUFSTEDLER, Before Harlan B. Watkins who identified him- WRIGHT, Judges. and Circuit Engi- self as an to the District Assistant Engineers. Army Corps neer in the HUFSTEDLER, Judge: Circuit copy One of those was a exhibits a brought eject- The United this States part say of the master license. We “a against appellant ment action Dibble to part” agreement the because refers approximately recover 11 acres of land incorporates and a “Master Plan for in the Lake Mendocino reservation area * * * Development Public Recreation answered, deny- in California. Dibble * * * attached hereto as Exhibit ing charging the averments the com- ‘A’,” and no such exhibit is attached. asserting plaint estoppel an and as af- copy Next there is a of a letter ad- prelimi- After firmative defense. some County, dressed to the dated 4 Decem- nary skirmishes, procedural the Gov- 1964, stating ber the terms of the summary judgment. ernment moved master license have been violated be- granted, ap- and The motion was Dibble County provided cause the has not the ensuing peals judgment. from the specified facilities and services “in the We reverse because the Gоvernment development area,” plan for the and that did not offer evidence sufficient to have the Government will terminate the li- finding County, sustained a the un- thirty days cense within unless there has held, der whose master “lease” Dibble compliance. copy been Next there is а was in breach of contract. February 1965, of a letter dated ad- dispute extending County, There is no dressed to about follow- ing facts: The June United States owns time within which By fee title to the land issue. written can correct violations refer- contract, Finally, the United States enced in “licensed” the December letter. part larger use of the land as of a there is a of a letter dated 20 parcel County, pursuant January 1966, again to Mendocino addressed to County, stating to 16 past U.S.C. 460d. inspections en- tered a subconcession license with one “revealed deficiencies and numerous vio- Mendoyoma, Mendoyoma Inc., by your and lations sub- concessionaires properly Cal.App. 1. The Government assumed the v. Barkwill See, g., burden on this issue. e. Rideman 34 P.2d proving operation proce- at Russian case nor faсilities one’s a clever Reservoir,” gambit whereby “previous de- dural River a claimant can corrected,” adversary shift ficiencies had not been his his burden of proof (Adickes “there continued violations of more were State one or issues. regulations,” and v. S. H. Federаl laws Kress & Co. 142.) therefore there would be a To recommenda- 26 L.Ed. Secretary Army tion to the of the obtain a favor of claim- pursuant complaint, terminate the license. The ant to his “numerous counter- deficiencies,” “previous claim, deficiencies,” cross-сlaim, moving par- or ty and “continued violations” were fur- must sup- offer evidence sufficient out, they port spelled finding upon every ther nor can related element part relief, to that except claim for contract found in those elements *4 Lastly, the copy advеrsary record. a admitted plead- there is of in his ings, reciting a form by stipulation, of revocation or notice that or otherwise dur- ing pretrial. the plaintiff master license has the been course of revoked at A seeking the summary judgment direction of the Secretary Assistant who has Army. of specified. the produce No failed reasons are to such evidence on one or more essential elements of his cause Nothing in the documents of action judg- no more is to “entitled a any purports impose to contractual filed (Rule 56(c) mеnt” Fed.R.Civ.Proc.) than County develop any duty spe to on the plaintiff is a fully who has tried his any specific provide or to cific facilities neglected case and who has offer to evi- in of in services. A recitation a notice dence, support finding sufficient to a on that tention to terminate a license the a upon material issue he which bears County the is in violation of terms of proof. (See the burden of J.6 proof any a not itself that license is (2d 1966) Federal Practice ed. [herein- guess such existed. that terms We can after cited j[ [2], as Mоore] at when of 4 the letter December mentions 2825.) In either situation there is a may development plan,” writer “the the proof. failure of have in mind the Plan” had “Master that incorporated was into the license with ignored far the Thus we have guess County, the and we can alsо that other deficiencies Government’s offered, if the Plan” “Master had been moving papers. papers Those did not it contained would have some covenants summary comply 56(e), Rule and or that could be construed to conditions predicat not have should been impose the the duties Government claims Mfg. ed on Co. (Automatic them. Radio speculation were not fulfilled. But of (1950) Research, v. Inc. Hazeltine proof that kind no is substitute ade 894, 827, 831, L.Ed. U.S. quate finding to sustain a that such Canton, 1312; Soc’y Ltd. Ins. of Union obligations and contractual existed 1965) (2d William Gluckin & Cо. County the in breached them material 952-953; 946, F. S. F.2d Bowen particulars. There is no in evidence the Elec. Co. D. Hedin Const. Co. v. J. record from which a conclusion could U.S.App.D.C. 316 F.2d follow that in violation was 362; Washington Maricopa requirements jus of some law State 1944) (9th de cert. F.2d tifying termination. 66 S.Ct. niеd 1024.)2 56(e) requires summary judgment 90 L.Ed. Rule A neither is per- avoiding “shall made on necessity a that affidavits be method of Obviously then, upon in- See it was also Paramount Pest Serv. trial. Control (9th upon determine the court to v. United States cumbent * * * proof proffered ad- 56(e) be would 116-117: “Rule whether clearly permits in- evidence, support if it and in use of in missible affidavits parol fringed upon opposition summary evidence rule then or in to a motion for reject judgment, requires alternative save but also facts there was be in it.” them admissible evidence knowledge, shall set forth suсh at could con- facts all which we sonal evidence, identify signa- in facts as would be admissible clude that he could affirmatively did; show tures of those he shall who tells us noth- ing competent testify affiant to the the document is show how knows genuine cer- therein. Sworn or to be a correct con- matters stated * * * papers copies em- of all tract. fact the affiant is tified ployed by Army affidavit shall at- in an and that the docu- ferred to signed supposedly served therewith.” ment was tached thereto or some- body pa- Army who is also is affidavit not made Mr. was Watkins’ tently provide insufficient him with knowledge; personal it did not set necessary personal knowledge to au- forth as would be admissible facts remaining thenticate it. None of the evidence; did and it that Mr. show exhibits is better identified. testify competent to the Watkins matters stated therein. hearsay All of the exhibits were as to Dibble. None of the documents The exhibits annexed to Mr. Watkins’ relating intradepartmen- copies are claimed breach of the memoranda, copies copies master lease tal of let- would been admitted persons by objection over ters to third at the time addressed third of trial. But styled very persons, copies tried, had the case been it is doubt documents *5 attempted ful revocation addressed fb third counsel would notices have by persons persons. to prove use a third None of the notice of termination to authenticated, attempt breach. Nor documents was and all of would he have hearsay. ed them were offer the exhibits in evidence ante- by testimony ceded the oral of a wit writing A is not authenticat ness to the same effect as thе recitals attaching simply by ed it to an affida of Mr. Watkins’ affidavit. Because vit, writing appears if even on its lawyers present so often inadmissible originated gov face to some from testimony (including own), in the agency ernmental and the is a affiant form they of affidavits would not govеrnment official. The foundation is presenting consider from a witness receiving laid for a document in evi stand, should we assume that the belief by testimony dence of a witness is common that the rules of evidence personal knowledge the facts vanish when by a witness testifies af identity whо attests and due ex fidavit rather than from the stand ? and, ap ecution of the document where Testimony presented by affidavit dif is propriate, delivery. An official rec ferent testimony orally delivered, by testimony ord is authenticated because the subject affiant is not of a witness who knows attests cross-examination. But fact leads facts Rule 44 of the Fed greater, lesser, not imposed strictures (See, eral Rules of Civil Procedure. on the testimony presented by affida g., 44; McMormiek, e. Moore C. (E. g., vit. 56(e) see Rule Fed.R.Civ. Handbook of the Law of Evidence Proc.; DePinto Security v. Provident 395-405.) (9th Life Cir.) Ins. Co. lay not did Mr. Watkins’ cert. denied 88 S. receipt of the exhib- foundation for Ct. 74; 19 L.Ed.2d Doza v. Ameri any theory. con- His affidavit its on can (8th Nat’l Ins. Co. Cir. legal un- conclusions sists of a series 230; F.2d 56.22.) Moore ft by says, supported for ex- He facts. judgment Because the must be аmple, the master license with any event, versed in we decline com- duly “was executed” upon ment the district court’s resolution 12, 1959, Army on June and the estoppel of Dibble’s defense. copy” He did is attached. and a “true sign exhibit, judgment is reversed. not states WRIGHT, Judge Circuit A. EUGENE (concurring): judgment on the un I concur nothing Judge
derstanding Huf opinion disturbs the well-
stedler’s able rule that affidavits in com
settled
pliance 56(e) may with Rule consid
ered the trial court in the absence objection by an counsel. Noblett v. Corp.,
General Electric
Comm’n,
1966);
(5th
United States
J.
National
2817-18
of Austin v. Western Electric
F.2d 568
& A.
Bros.,
at 171-72
(7th
Holtzoff,
Inadmissible affidavits are no differ- ent from inadmissible They evidence.
may be stricken the discretion of the judge, trial support but will
if he elects to consider them and no ob-
jection is made.
UNITED America, STATES of Appellant, Frank
Colonel CHILDS and Elizabeth Childs, Appellees. No. 22601. (argued), Frank B. Friedman Ed- Martz, Clark, Attys., Clyde mund B. O. United States Appeals, Court of Atty. Gen., Div., Dept, Asst. Lands Ninth Circuit. Justice, Washington, C., D. Ann Jo D. June Diamos, Asst. Edward E. Atty., U. S. Davis, Atty., Tucson, Ray- Ariz., U. S. Zagone (argued rehearing), N. mond Kashiwa, Atty. Gen.,
Shiro Asst. Lands Div., Dept, Washington, Justice, C., Burke, Atty., D. Richard K. U. S. appellant.