United States v. Lucchese

PETITIONER:United States
RESPONDENT:Lucchese
LOCATION:John H. Kerr Dam and Reservoir

DOCKET NO.: 57
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 365 US 290 (1961)
ARGUED: Dec 08, 1960 / Dec 12, 1960
DECIDED: Feb 20, 1961

Facts of the case

Question

  • Oral Argument – December 12, 1960
  • Audio Transcription for Oral Argument – December 12, 1960 in United States v. Lucchese

    Audio Transcription for Oral Argument – December 08, 1960 in United States v. Lucchese

    Earl Warren:

    Number 57, United States, Petitioner versus Gaetano Lucchese, et cetera.

    Mr. Barnett.

    Wayne G. Barnett:

    Mr. Chief Justice, may it please the Court.

    This is actually two cases and they are consolidated for argument.

    The Lucchese case is here on writ of certiorari, but also the Costello case Number 59 is being argued with Lucchese on one question that that question that was raised by the motion for leave to amend the petition in Costello.

    In the 1955 term, this Court held in United States v. Zucca that a denaturalization proceeding could not be maintained without filing in Court the affidavit of good cause required by Section 340 (a) of the Immigration Act.

    These cases arise from the Government’s attempt to comply with those requirements.

    In both of these cases as in Zucca, the affidavit of good cause was not filed with the original complaint.

    After the Zucca decision however, the Government did file affidavits in attempt to cure the original defect.

    The Second Circuit in both cases held that that late filing was adequate.

    This Court, however, granted certiorari and in per curiam orders, reversed the judgments and remanded the cases with directions to dismiss the complaints saying and the order appears in new Lucchese at page 29 an affidavit showing good cause as a prerequisite to the initiation of the denaturalization proceedings.

    The affidavit must be filed with the complaint when the proceedings are instituted.

    On remand of the — of these two cases to the District Courts, Lucchese to the Eastern District of New York and Costello to the Southern District, the Government submitted proposed judgments dismissing the complaints without prejudice.

    The District Courts in each case, however, felt that they were bound by this Court’s mandate simply to dismiss without specifying the effect of the dismissal orders and the order in Lucchese is in the record at page 30 and 31.

    The dismissal order in Costello is not printed in the record, but we are — by stipulation filed copies which I believe were distributed to the Court.

    As the Court will see there substantially identical and simply reciting the prior proceedings and judging that the complaints be dismissed.

    Now up to that point, the two cases are identical for all material purposes and it’s only after that point that they’re filed separate.

    In Costello, the Government did not appeal from the dismissal order, but rather simply filed the new complaint with the required affidavit.

    It was met, however with the claim by Costello that since the dismissal order of the prior action did not specify that it was without prejudice, it operated by force of Rule 41 (b) as a dismissal with prejudice and barred the new action.

    Both the District Court and the Court of Appeals rejected that argument and it’s that question that Costello seeks to raise by the motion to amend the petition.

    This Court granted the main petition in the Costello which raises other questions which are being argued separately, did not act on the motion to leave to amend the petition and set that motion down for argument together with Lucchese.

    Now, in the meantime, because of the res judicata argument being made in the Costello, the Government sought to protect itself in Lucchese by appealing in the original proceedings themselves from the refusal of the District Court to act without prejudice to a dismissal order.

    The Court of Appeals dismissed that appeal on the ground that the District Court had no power on remand to do anything more than dismiss as this Court had said without embellishment or elaboration.

    The Court granted certiorari on the Government’s petition and as I say, consolidated that with the Costello motion.

    Potter Stewart:

    Mr. Barnett, it’s a little complicated procedure to follow.

    The basic issue is simply not I expected sure enough.

    What was the chronology in the Court of Appeals for the Second Circuit?

    Did the Costello appeal get there ahead of the Lucchese appeal?

    Wayne G. Barnett:

    No.

    The Lucchese appeal was — I’m not sure when they were filed.

    Wayne G. Barnett:

    The Lucchese appeal was decided before the Costello.

    Potter Stewart:

    Before?

    Wayne G. Barnett:

    Yes and we had filed our petition before Costello petition was due here for that reason.

    And actually, we filed our — our petition was primarily a protective one just in case the Court took the question in Costello so we would be protected in Lucchese.

    I would like to clarify my position on the motion to amend in the Costello.

    Now, when that was filed we opposed it for among other reasons, the fact that there was no good cause but failing to raise issue in the original petition and the Court ought not encourage peace bill petitions, but now that the Court has granted Lucchese, they said in there, the Costello motion is somewhat different.

    The questions are obviously closely related and if the Court is going to hear and determine Lucchese on the merits, we don’t see how we can continue to oppose hearing also the question in the Costello.

    So unless the Court concludes that it should dismiss Lucchese also, we don’t oppose the motion to amend.

    Turning the merits, I’ll deal first of the Costello case and the question there posed the effect of the dismissal order on later proceedings, because I think that’s the basic question.

    His argument, as I say is that, since the order did not specify, there was without prejudice that operated under Rule 41 (b) as a dismissal with prejudice.

    The Court of Appeals said that argument is based entirely on pure technicality since judgment (Inaudible), because one thing that is clear is that no Court that has ever been involved in these proceedings intended or contemplated that result.

    In the prior proceedings from the Zucca case itself, the Court affirmed the judgment dismissing the complaint without prejudice to new proceedings.

    When these cases were here before, they were here with four — with two other cases, a total of four cases.

    In the Lucchese case and in the Costello — well, in the Lucchese case and the Diamond case from the Ninth Circuit, the District Courts had dismissed without prejudice because of the lack of the affidavit and in the Costello case, the District Court had dismissed without prejudice though for other reasons.

    In the fourth case that came up, the Mattels case the District Court had refused to dismiss at all.

    Now, in the Second Circuit to which three other cases went and the major opinion was written in Mattels, the Court stated the question to be whether the late filing of the affidavit was sufficient or whether the Government was required to institute a new proceeding with a new service or process.

    That was the question and this Court, when it took the case and simply stated that the complaint had to be filed with the — the affidavit had to be filed with the complaint and directed the District Court to dismiss, decided nothing more than that.

    I think that is clear.

    So, the main problem is how we can avoid that unintended result of how the Rule 41 (b) can be fairly construed not to produce that result.

    The Rule, it’s quoted in our Costello brief at page 5, the last sentence, by the way when I speak of Rule 41 (b), I’m referring only to the last sentence which is the only part involved here, with pertinent substance that unless the Court otherwise specifies in the order a dismissal other than dismissal for lack of jurisdiction or venue shall operate as an adjudication on the merits.

    Now there are two ways to approach the interpretation of the rule One, adopted by the District Court is to say that the dismissal here was for lack of jurisdiction.

    That by the way is the characterization of the dismissal that was adopted I think by all of the defendants in the prior proceedings when they moved to dismiss.

    They filed their motions to dismiss under Rule 12 (b) as motion to dismiss for lack of jurisdiction.

    Now the jurisdiction of course means different things for different purposes and I think the question really is how should be construed for purposes of this rule and that turns on what purposes of the rule are and the basic purpose I think is evident.

    The rules give to the Court a discretionary power in a number of instances to specify the effect of the dismissal, to make it with prejudice or without prejudice.

    That is true of dismissals for one of prosecution for failure to state a claim, for failure to comply with an order and for insufficiency of proof by the plaintiff.

    Now, having the discretion to make the dismissal either way, you needed a presumption to control the case where the Court failed to say which way he was exercising his power and that’s what Rule 41 (b) does.

    It says that unless it is otherwise specified, he shall be deemed to exercise the power to dismiss with prejudice and that I think is not — is not too great of a burden on the plaintiff because he knows in that kind of situation that the dismissal maybe one way or the other.

    He can see to it specifies but it’s intended.

    Charles E. Whittaker:

    That’s all (Inaudible) in the dismissal of silence is a dismissal of this prejudice?

    Charles E. Whittaker:

    The Rule exempted that other than a dismissal (Inaudible)

    Wayne G. Barnett:

    Yes sir.

    No I’m sorry.

    I didn’t make that clear.

    That is one of the exemptions and the District Court held that we are within that exemption and that is really what I’m arguing.

    Charles E. Whittaker:

    But that is not what the judgment says.

    If it it’s not revived, the dismissal would direct you to one jurisdiction, the dismissals are not in place.

    Wayne G. Barnett:

    That is right.

    That’s right.

    And our argument is that it was for lack of jurisdiction as that term is used in this Rule.

    Now we acknowledge that it is not a jurisdictional defect for all purposes.

    It’s certainly we would say does not subject a final judgment to collateral attack for lack of that requirement.

    But — excuse me, you have to give jurisdictions used in this Rule quite a — a broad scope to include what might be called quasi jurisdictional defects because I — I can suggest the scope of dismissals where I think the rule would be — produce the result that was certainly not intended otherwise.

    We — the problem isn’t limited to this particular dismissal here.

    There are a variety of dismissals which no one I think has ever thought would bar later proceedings, nothing in the rules purports to give the judge power to make them with prejudice and which can be accepted only if you put them under the heading of jurisdiction.

    For example, a dismissal of a tax refund suit for failure to file an administrative claim for refund, a dismissal for failure to exhaust the administrative remedies, a dismissal of a National Labor Relations Board application for an injunction against the temporary boycott — a secondary boycott for failure to make a preliminary investigation, dismissals for lack of an indispensable party, for lack of the real party interest.

    If all of these kinds of standard or specialized grounds for dismissal rising out statutory preconditions to sue, which I do not think were ever intended to the grounds for dismissals with the prejudice and we would say that all of these ought to be characterized for this particular purpose as dismissals for lack of jurisdiction.

    What they have in common is that they — as fair as I precondition to suit and it stops the litigation, a threshold is never an opportunity to litigate the merits and for — for purposes of res judicata, they are exactly like any other dismissal for lack of jurisdiction.

    Now there’s a — a second approach which was adopted by Judge McGruder in his opinion for the Court of Appeals.

    And I think it can be best phrased as turning on a construction of the beginning words unless the Court in a dismissal order otherwise specifies.

    Now Costello says that — argues that an order otherwise specifies only if it uses the magic words without prejudice, but we think that — in light of the purpose to rule, there’s no reason so limit it.

    As I’ve said, the main purpose is to remove the ambiguity in cases where it is not clear whether the dismissal is on the merits or whether the District Court has exercised a discretionary power to impose a dismissal with prejudice as a sanction for some dilatory tactic or — or for castrating in part.

    Now, if that is the purpose of the Rule, it seems to me that an order specifies otherwise even if it does not say without prejudice, so long as it makes clear by any form of words that there has been no determination on the merits and that the District Court is not proportioned to exercise a discretionary power to impose a dismissal having the same effect as one of the merits.

    Now, that is precisely, I think, what the order in Costello shows.

    It clearly shows that — as Judge McGruder said, that there’s been no — no determination on the merits and that the District Court did not exercise whatever discretionary power he may have had if he had any to make it with prejudice.

    And we think such an order is one otherwise specified.

    And, I think that is fully in accordance with everything that this Court has this far intended in these cases.

    I’d like to turn briefly to the Lucchese case, which actually the result will turn primarily upon the result in Costello.

    If a Court accepts our view in Costello that the original order was not barred with the second suit and for all practical purposes, that — that moots the question in Lucchese because we were aggrieved by the failure to say without prejudice only because of the doubt of what the effects of the order would be otherwise and if this Court settles the doubt, there’s no longer a practically important issue in Lucchese.

    On the other hand, if the Court disagrees who doesn’t hope there is a bar, then I think it’s clear from what I’ve already said that the District Court erred in Lucchese in not adding the words without prejudice.

    Wayne G. Barnett:

    So I think the only separate question arising in the Lucchese is the procedural one raised by Lucchese, namely, whether the Government by appealing followed the wrong the procedure to correct the error.

    Lucchese’s argument is — is that the Court of Appeals has no jurisdiction.

    It just simply does not have power to decide questions of compliance with this Court’s mandates and he argues that this is that kind of question.

    Now, even accepting the premise, I think the short answer is that this is not a question of compliance with this Court’s mandate.

    It is clear that the Court in directing — remanding case with direction to dismiss did not purport to pass on the question of the nature of the dismissal and that it should with or without prejudice and it was therefore in matter not within the scope of the mandate and a new issue which the Court of Appeals is free to review.

    And that’s really all the Court has to decide in the case.

    But I would like to say that we, by no means, agree with the premise of Lucchese is that there are any limits on what the Court of Appeals can do in reviewing actions by a District Court, simply because it involves among other things or solely a question of interpretation of a mandate of this Court.

    The — there are — there are Court of Appeals’ decisions supporting that.

    We think that they are the product simply of a historical oversight and I will only very briefly suggest what that is because I suggest that the Court needs to reach it.

    The — in cases prior to 1891 in this Court, the Court established that questions of compliance with these mandates could be reviewed by it either on mandamus or by appeal.

    Now, of course before 1891 there were no Courts of Appeals and so it was perfectly clear that any appeal lay only to the Supreme Court.

    Now, it would seem to have followed that when the Courts of Appeals were created in 1891 and since the questions could be reviewed by ordinary Courts of Appeal that you could appeal the Court of Appeals from a final judgment.

    But the — in later cases, this Court did not carefully make that distinction and continued to repeat the old language.

    In fact however, all the cases held were that the remedy of mandamus to enforce a mandate had to be sought in the Supreme Court and not in the Court of Appeals and although as I say that the — some Courts of Appeals have said they have no jurisdiction of appeal, we think that there’s no valid reason whatsoever for that.

    It simply confuses the processes of review.

    Lucchese says that if it raises a new issue, we must go to the Court of Appeals, but if it raises something within the scope of the mandate we must somehow come to this Court and — but the question of whether or not the matter is foreclosed by the original mandate, is usually the very question.

    And so, you have to decide the merits before you decide jurisdiction and I think it would only produce unnecessary protective applications to this Court.

    Potter Stewart:

    What did the Court of Appeals for the Sixth Circuit do with the Ringhiser case?

    Wayne G. Barnett:

    I’m not sure.

    Potter Stewart:

    I got the right the name — the right name of the Act, (Inaudible) in that case in which there was some confusion or uncertainty as to what the mandate was that this Court meant?

    Wayne G. Barnett:

    I’m not — I’m not sure I recall that case.

    The — as I say I agree there are some Court of Appeals cases and I think that is one of them declining to review questions of compliance.

    Our only point really is that historically there was no basis for that limitation on their jurisdiction and we don’t understand what the obstacle is to their reviewing all questions of compliance with mandate.

    I would like, if I may, to reserve the rest of my time.

    Richard J. Burke:

    May it please the Court.

    I’m speaking on behalf of the respondent Lucchese and I agree with the Solicitor that if the Costello case is decided adversely to Costello, then the question involved in the Lucchese case becomes entirely academic because the question involved in the Lucchese case has only to do ultimately with whether the District Court obeyed this Court’s mandates or not when it entered its order of dismissal.

    I would like to initially answer Justice Stewart’s question about the Ringhiser case in the Sixth Circuit because that has to do with the first point that I want to discuss and there the District Court purporting to obey a Supreme Court mandate had entered an order unsatisfactory to one of the parties and the party appealed to the Court of Appeals and the Court of Appeals dismissed the appeal stating specifically that the Court of Appeals had no jurisdiction of the question whether a District Court has or has not complied with the Supreme Court mandate and that is entirely a question for this Court to determine and a party complaining that the District Court is not complying with this Court’s mandate must come to this Court.

    And the basis and authority for that proposition is not only in Court of Appeals cases but in this Court and I have cited the case in my brief.

    It’s in 207 United States.

    It had to do where the case where a Circuit Court of appeals had assumed the power to determine whether a District Court was complying or not with the mandate and this Court there stated and I’ve quoted the language in my brief “The Circuit Court of Appeals had no jurisdiction of the matter.”

    Richard J. Burke:

    So, words couldn’t be clearer it seems to me and therefore when the Government —

    Hugo L. Black:

    What page is that?

    Richard J. Burke:

    That case is entitled Ex parte First National Bank of Chicago Your Honor.

    I have cited that at page 5 of my brief.

    Therefore —

    William O. Douglas:

    You — you maintain that the only remedy of the Government was not by appeal to the Court of Appeals, but by motion in this Court?

    Richard J. Burke:

    Correct, exactly.

    And —

    Charles E. Whittaker:

    Well then, what was with the District Court passing the jurisdiction to pass this (Inaudible) from the question.

    Richard J. Burke:

    I say no, Your Honor that the District Court had no jurisdiction to pass judgment.

    The District Court was acting in a ministerial capacity the cases say, in entering an order in compliance with this Court to mandate and had nothing to do but follow what this Court directed it to do.

    Charles E. Whittaker:

    And it was not from (Inaudible) what would it do?

    Richard J. Burke:

    It would have to use its best the judgment as to whether it were — whether it was obeying what this Court had directed to be done.

    That’s what both these District Courts did in this case and in the Costello case.

    Since this Court’s judgment said nothing about the dismissal being without prejudice to a Government’s right to bring a new action thereafter, but simply said it is remanded with directions to dismiss.

    Both District Courts felt that they should follow the unambiguous direction of this Court and enter an order dismissing this what the effect of such an order would be if it’s not necessary for the Court to determine, but both Courts felt to add to what this Court had directed the words without prejudice to the Government’s right to start a new action would be to vary the judgment that this Court had entered.

    Felix Frankfurter:

    Let me ask you this Burke, do you think a distinction of the cases you have cite like this, you say that the ministerial duties of the Court — the District Court involves that.

    Is that right?

    Richard J. Burke:

    Yes.

    Felix Frankfurter:

    That would be suppose that there is no discretion as (Inaudible) if it’s clear as day.

    If that is so, if it has failed to exercise its ministerial duties, they’re not (Inaudible) the Court of Appeals of proper court to resort (Inaudible).

    If there is doubt with real ambiguity as to what the judgment of this Court talks about.

    And therefore it is not reducible to a ministerial act then I should think the proper place to come to it here as this Court, and ask what does your mandate mean?

    Is that distinction — is there any validity to that distinction as it’s been taken?

    Richard J. Burke:

    Well, that particular distinction has not been taken to my knowledge, Justice Frankfurter.

    The distinction has been taken, but if a completely new issue is raised before the District Court which doesn’t involve the question of compliance with this Court’s judgment but then that can be reviewed by the Court of Appeals, but that I feel is not involved here and so did the Court of Appeals.

    Felix Frankfurter:

    Really not, really not.

    That is not — it isn’t new method.

    Richard J. Burke:

    That’s right.

    Felix Frankfurter:

    There is something that this Court has left open and it isn’t a question of construing — unless that be an issue, unless it is a question whether it was left open and I should think the proper thing to do it to come in and to put the matter to this Court.

    Richard J. Burke:

    Well in its briefs, the Government here has taken both positions I’d say inconsistently but it’s argued both ways.

    It has said primarily that it was implied in this Court’s judgment that the dismissal should be without prejudice to a further proceeding.

    And then it has said conversely that if it was not implied, then it was a brand new matter and the District Court could take it up as a new manner without feeling that it was under any control, one way or another in this Court automatically.

    Felix Frankfurter:

    I should think of that amount where there’s space that I wrote almost one of my very rare (Inaudible) which involved this discretion, namely, as to what was left open whether it was a new matter and that’s a very different and if that in controversy, then I should think you have to come in, you have to come here and ask the Court what does your mandate means?

    I think you need to be (Inaudible)

    Richard J. Burke:

    I think that —

    Felix Frankfurter:

    But it was so clear that there’s no dispute if it is merely — it’s – if it is contented by the Government that Zucca established one loosely might be called a jurisdictional requirement namely necessary precondition to a suit and therefore it couldn’t be that we — when we send the case down that you can’t begin this relief so you now can qualify — can qualify within the requirements that constitutes the suit.

    But it’s strictly a territory, I must say whether it’s so clear that it’s become ministerial or whether the petition question that you must ask a court that made to do (Inaudible) that is what it’s meant.

    Richard J. Burke:

    Well, oddly enough the Government maintains that it was so clearer that the District Court should have added these words whereas I maintain and the District Court, both District Courts in both cases and also the Court of Appeals in the Second Circuit felt that it was just as clear the other way that they had no business to add any such words to what is in directive to this Court.

    Felix Frankfurter:

    Well, as I understand the per curiam of the Court of Appeals, they simply said that if the District Court uses the words that this Court has been using, it is obeying the mandate, isn’t that right?

    Richard J. Burke:

    That’s right.

    In the — in the Lucchese case, they said that one doesn’t reach the question of the effect of the order.

    They simply —

    Felix Frankfurter:

    That’s for another day.

    Richard J. Burke:

    That’s right.

    Felix Frankfurter:

    And the District Court did exactly what they did (Inaudible) to issue its mandate.

    What the legal consequences are that for this litigation?

    Richard J. Burke:

    That is for another day and the other day came at — the other day came a couple of weeks later in Costello and they decided that it didn’t make any difference whether the words were in there or not, a different panel of the same Court.

    Felix Frankfurter:

    So I guess we better decide Costello.

    Potter Stewart:

    So far as it appears, there hasn’t been a new complaint, but it’s actually in relation with the Lucchese case.

    Richard J. Burke:

    No there has not Your Honor.

    Felix Frankfurter:

    (Inaudible) did.

    Richard J. Burke:

    And they have not done that.

    Instead, they have become concerned about the form of the judgment, but the point that I would like to make is that the Government in the relief that is asking this Court for ignores the procedural posture in which the Lucchese case is here, because I moved in the Court of Appeals to dismiss their appeal on the ground that I have discussed a few moments ago that they lacked jurisdiction to consider the question at all and they granted my motion and entered an order which is in the record in which it states that a motion having been made to dismiss for lack of jurisdiction is granted.

    Then they added what I have maintained as a dictum the words that in any event the District Court, they don’t say in any event.

    They said the District Court had no basis to take any other action then it did and we will not pass now upon possible effect of that on future litigation, but what I say is that if the Court of Appeals intended to consider this question on the merits as to whether the District Court should or should not enter an order without prejudice in cases like this or in this case, I would assume that it would have had a full dress argument and appeal on the matter rather than dismissing it on my motion to dismiss for lack of jurisdiction.

    It is what they did and what the Government is here reviewing by certiorari is whether a dismissal for lack of jurisdiction was correct in the Court of Appeals and they’re asking for the relief that you direct the District Court to add the words without prejudice to the order in the Lucchese case.

    Felix Frankfurter:

    Are you standing on the dismissal of the Court of Appeals and defending it on the ground that it should have come here?

    If not, you can defend it on that ground couldn’t you?

    Richard J. Burke:

    That is — that is one ground that I’m standing on.

    Felix Frankfurter:

    Yes.

    Richard J. Burke:

    But — but, not only on that ground.

    Felix Frankfurter:

    I understand.

    Richard J. Burke:

    Because — and I — and I finished speaking of that ground getting down.

    If this Court will — intends to consider or does consider the question about whether to issue directions to the District Court and what sort of an order the District Court should have entered whether it did or did not comply with this Court’s judgment and I want to discuss that question.

    Of course I feel as the — as the Court of Appeals commented in its opinion and as both District Judges felt, that they had no business adding words to what this Court had directed, but the Government says that it was implied in this Court’s judgment that these words without prejudice to refer the proceeding should be added to the order.

    And, it seems to me very clear that no matter what else one may say that no such thing was implied in this Court’s judgment.

    This Court, if it had — if it had adverted to that question and meant to either imply it or expressly say it could well have said in Lucchese that the Court of Appeals’ decision which was adverse to Lucchese is reversed and the District Court’s order is reinstated because the original District Court’s order in Lucchese had been without prejudice to a further proceeding by the Government.

    But instead of simply reinstating the District Court’s order that this Court specifically said it’s remanded to the District Court with directions to dismiss the complaint and stopped there.

    So that I don’t see how any District Court would imply or would think that it was implied in that statement that they should simply put back into effect their original order, this Court not having told them to do so.

    Charles E. Whittaker:

    But this cited Zucca.

    Richard J. Burke:

    It’s cited at Zucca and there is nothing in Zucca, contrary to what the counsel says.

    I believe to indicate that this Court meant to hold in Zucca that the Government would have a right to start another action after the dismissal.

    The point was really not passed on at all in Zucca.

    That wasn’t before the Court in Zucca as to what sort of a dismissal would be had.

    The only point in Zucca was whether the Government had to file the affidavit or not.

    Charles E. Whittaker:

    Well the condition that these two (Inaudible) —

    Richard J. Burke:

    Well, the language that was used in Zucca was a procedural prerequisite, but I don’t reach the point Your Honor as to whether it’s the jurisdictional under Rule 41 and so on.

    I don’t believe I reach that point Lucchese that it’s necessary for me to reach that point because all the — all the District Courts had to determine was whether it was necessarily implied in this Court’s order that it should add these words without prejudice.

    If it were — if it were jurisdictional under Rule 41, there would be no occasion for adding the words without prejudice because it would be without prejudice anyway under the Rule.

    So there was no way that the District Court could feel that there was an applied direction to add without prejudice.

    Felix Frankfurter:

    Well in all events, well in all events, you just said that either it’s necessarily implied and we had to spell it out, you don’t have to have a lawsuit to put in words that are very implicitly or if — if that’s in doubt all the government has to do it is to file a piece of paper, we will find out after finding it whether it is any good.

    Richard J. Burke:

    That’s right and if I may just add one sentence.

    What the Government is actually doing here under the guise of review by certiorari is trying to get a belated petition for rehearing of that judgment that was originally entered two years ago by this Court because they end up their reply brief by asking this Court to clarify its judgment, if that be necessary and I say I already had time on that.

    Felix Frankfurter:

    I’m glad (Inaudible) both of you, but physically say now, you shouldn’t have heard this case but held at Costello.

    Richard J. Burke:

    We probably went to it in the wrong order, I agree.