Vibra Brush Corp. v. Robert H. Schaffer, Postmaster of the City of New York
256 F.2d 681
2d Cir.
1958
Check Treatment
PER CURIAM.

In Columbia Research Corp. v. Schaf-fer, 2 Cir., 256 F.2d 677, wе held a “fraud order” of the Post Office Department under 39 U.S.C. §§ 259, 732, similar to the one here involved not enforceable for failure of the Department to comply with the provisions of the Administrative Procedure Act for the separation of prosecuting and adjudicating functions and for publication in the Federal Rеgister of its central and field organization and delegations of final authority. 5 U.S.C. §§ 1002 (a), 1004(c). See also Pinkus v. Reilly, D.C.N.J., 157 F.Supp. 548. Since the same principles control here, we must hold the court in error in denying the plaintiff’s motion for summary judgment and granting that of the defendant, though the issue was not raised below. The judgment dismissing the complaint •is therefore rеversed, and the action is remanded for the issuance of an injunction forbidding the defendant to deny plaintiff the use of the mails for its advertising.

On Petition for Rehearing

CLARK, Chief Judge.

Ir. this case and the cоmpanion case of Columbia ‍‌​‌​‌‌‌​​​‌​​​​‌​​‌​‌‌​​​‌‌‌​‌‌​​‌‌​‌​‌‌‌​‌‌‌‌​​‍Research Corp. v. Schaffer, 2 Cir., 256 F.2d 677, the Government has filed petitions for rehearing, saying that the actions must abate becаuse Schaffer resigned as Postmaster in New York City on May 31, 1957. The issue is a very substantial one in the light of the recent Supreme Court decisions hereinafter discussed, and it has been fully briefed for us by counsel. We are constrained to hold, albeit reluctantly under the circumstances, that under these decisions the actions must abate for lack of a timely motion for substitution of a new defendant.

In this case the district court’s order was entered on April 15, 1957, and notice of appeal was filed May 3, 1957, i. e., substantially before Schaffer’s resignation. It differs in this respect from the Columbia Research case, where both these steps occurred shortly aftеr the resignation. Since the case was thus in our court at the time, any question of substitution of parties or continuance of the action must be controlled by our Rule 9, not by the district court rule, Rule 25 (d), F.R.Civ.P. United States ex rel. Trinler v. Carusi, 3 Cir., 168 F.2d 1014. But except as defining the source of authority this is not important here in view of the similarity of the rules. F.R. 25 (d) —with which Rule 48.3 of the Supreme Court’s Revised Rules corresponds rather closely — provides that, when an officer of the United States resigns during the pendency of the action, it may be continued “against his successor, if within six months after the successor takes office” it is satisfactorily shown (as is the obvious case here) that there is a substantial ‍‌​‌​‌‌‌​​​‌​​​​‌​​‌​‌‌​​​‌‌‌​‌‌​​‌‌​‌​‌‌‌​‌‌‌‌​​‍need therefor, as where the successor is continuing the action of his predecessor. Our Rule 9, adopted in 1954, provides: “The substitution of a party during thе pendency of an appeal shall be in accordance with Rule 25 of the Federal Rules of Civil Procedure, except that such substitution shall be made within 60 days after the event calling therefor ; and if not then made, the court may take such action as it shall deem appropriate, including dismissal of the appeal.”

*683 It is quite clear that our rule was designed to accept the general principles of F.R. 25, with only the minor modification that an appellatе court to dispose of an appeal could act in a shorter time than the 2 years available in case of death, F.R. 25(a), or the 6 months on resignation of a public official, F.R. 25(d). Thus it was not designed to extend the period, but to give the court a discretionary power to shorten it.

Hence the issue is whether a timely application for substitution was here made. None was made until the plaintiff аnswered the petition for rehearing in June of this year. But no successor was appointed until on June 3, 1958, Robert K. Christenberry was designated Acting Postmaster at New York City. Bеfore that time, according to the Government’s representation to us, “Mr. Howard Coonen, Regional Operations Director, New York Postal Region, was designated to take charge of the New York post office effective as of the close of business May 31, 1957.” In 39 U.S.C. § 38 it is provided that, whenever the office of any postmaster becomes vacant, “the Postmaster-General may, when the exigencies of the service require, place such office in charge of a special agent until the vacancy can be regularly filled.” Other statutes provide for the “appointment” of postmasters, the filling of vacanсies by “appointment,” and the “appointment” of acting postmasters. See, e. g., 39 U.S.C. §§ 31a-31d, 39, 39a. Against this background we had been disposed to conclude that nо successor was appointed before Christenberry took office on June 3, 1958, and that a timely motion thereafter for his substitution was adequate compliаnce with any of the rules. But that conclusion seems now foreclosed by the two Supreme Court cases decided June 23, 1958, Klaw v. Schaffer, 78 S.Ct. 1369, 2 L.Ed.2d 1368, and Glanzman v. Schaffer, 78 S.Ct. 1370, 2 L.Ed.2d 1368.

These were cases where we, after the time of Schaffer’s resignation, affirmed ‍‌​‌​‌‌‌​​​‌​​​​‌​​‌​‌‌​​​‌‌‌​‌‌​​‌‌​‌​‌‌‌​‌‌‌‌​​‍district court judgments entered before that date: Klaw v. Schaffer, 2 Cir., 251 F.2d 615, affirming D.C.S.D.N.Y., 151 F. Supp. 534; Glanzman v. Schaffer, 2 Cir., 252 F.2d 333, affirming D.C.S.D.N.Y., 143 F.Supp. 243. The Supreme Court’s; Per Curiam opinions are quite summary, but apрear to be sweeping. In the Klaw case the motion to substitute Coon-en, “Individually and Regional Operations Director in charge of the United States Post Officе at New York, New York,” is denied “as untimely,” citing Snyder v. Buck, 340 U.S. 15, 71 S.Ct. 93, 95 L.Ed. 15. Then the petition for certiorari is granted, our judgment is vacated, and the case is remanded to the district court with instructions to dismiss the complaint as abated. The Glanzman opinion is similar, except that there it is the motion to substitute “Robert K. Christenberry, Acting Postmaster, New York, New York,” which is; denied as untimely on the basis of the Snyder case. It thus seems to have passed fully on the status of both Coonen and Christenberry and by necessary implication tо have held Coonen the successor to Schaffer before Christenberry took office. Accordingly we see no other course open than to vаcate the judgment below and remand the action to the district court with instructions to dismiss; the complaint as abated.

Certain details remain unclear. Thus the Supreme Court does not state what law of substitution it is applying. Its citation ‍‌​‌​‌‌‌​​​‌​​​​‌​​‌​‌‌​​​‌‌‌​‌‌​​‌‌​‌​‌‌‌​‌‌‌‌​​‍of the Snyder case does not help, because that case depends on a statutе, later repealed perhaps through inadvertence. 1 Presumably it must be the Su *684 preme Court’s own rule, 48.3. But the implication of an inclusive definition of successor to include a special agent in charge probably should carry over to our Rule 9. The harshness of the present F.R. 25 has been such that the late Advisory Committee considеred this perhaps the one rule most in need of amendments and suggested changes which have not yet been acted upon. See Report of Propоsed Amendments, October 1955, 28-33. At best it would seem difficult for parties dealing with orders really emanating from- Washington to keep track of changes in local postmаsters, and almost impossible to know when and what special agents are left temporarily in charge. This makes a trap for unsuspecting litigants which seems unworthy of a great government. But until change is made, we must of course follow the leadership of the Supreme Court.

Our former judgment is withdrawn, the order below is vacated, аnd the action is remanded to the district court with instructions to dismiss the complaint as abated.

Notes

1

. Subdivisions (a) and (d) of F.R. 25 were a restatement of former 28 U.S.C. §§ 778, 780 (1.946 Ed.), which were reрealed and not included in the 1948 Judicial Code for the stated reason that they were superseded by F.R. 25 and 81. H.R.Rep. No. 308, 80th Cong., 1st Sess. ‍‌​‌​‌‌‌​​​‌​​​​‌​​‌​‌‌​​​‌‌‌​‌‌​​‌‌​‌​‌‌‌​‌‌‌‌​​‍A239 (1.917). But they should have been retained, sinсe the civil rules do not apply to all actions in any court of the United States. Moreover, the provision for substitution upon death of a party has beеn considered a “statute of limitations,”' Anderson v. Yungkau, 329 U.S. 482, 485, 07 S.Ct. 428, 430, 91 L.Ed. 436, and more lately has been held invalid as a morn rule of court without supporting legislation. Berry v. Allen, 5 Cir., 239 F. *684 2d 107; Henebry v. Sims, D.C.E.D.N.Y., 22 E.R.D. 10. But this need not apply to subd. (d), which may be considered only a rule of procedure, since under the former statute dismissal for failure to substitute the successor public officer in 6 months was without prejudice to the bringing of a new action. State of Oklaboma ex rel. McVey v. Magnolia Petroleum Co., 10 Cir., 114 F.2d 111. In the recent cases cited in the text, the Supreme Court appears to have accepted the applicable rules as valid. Snyder v. Buck, 340 U.S. 15, 71 S.Ct. 93, 95 L.Ed. 15, arose under the former 28 U.S.C. § 780.