United States Ex Rel. Touhy v. Ragen, Warden

200 F.2d 195 UNITED STATES ex rel. TOUHY v. RAGEN, Warden et al. No. 10732. United States Court of Appeals, Seventh Circuit. November 19, 1952. Robert B. Johnstone, Chicago, Ill., for relator. Otto Kerner, Jr., U. S. Atty., Chicago, Ill., for appellant. Ivan A. Elliott, Atty. Gen., for respondent. Before MAJOR, Chief Judge, FINNEGAN and LINDLEY, Circuit Judges. PER CURIAM. — 1 — Appellant John F. Malone has filed a motion for summary reversal of the order of the District Court holding him in contempt of court, entered September 18, 1952. The relator has filed objections thereto. — 2 — The record discloses that this appeal presents but one question, and that is the same one that was before this court in United States ex rel. Touhy v. Ragen, 7 Cir., 180 F.2d 321, and before the Supreme Court in United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417, wherein it was held that Order No. 3229 entered by the Attorney General, acting under 5 U.S.C.A. § 22, is valid and that a subordinate official of the Department of Justice, in pursuance of that order, acted properly, in refusing to produce certain documentary evidence and was, therefore, improperly found guilty of contempt of court. Here a similar subordinate declined to produce such evidence, acting under the same order and directions from the Attorney General so to do. Inasmuch as the essential question has been authoritatively decided by the Supreme Court, its decision is controlling. — 3 — The alleged differences in the present case are of no legal significance. — 4 — The order appealed from is reversed. — 5 — LINDLEY, Circuit Judge (concurring). — 6 — Though I dissented in the former case, in view of the Supreme Court's affirmance of this court's decision in that case, I agree that United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417, controls and that the order must be reversed.