Estate of Clayton K. Mitchell, minor.
You are hereby notified that a petition for the appointment of a temporary guardian has been filed regarding the above-named minor. All objections to the Petition described above either to the appointment of a temporary guardian or the appointment of the petitioner as temporary guardian, must be in writing, setting forth the grounds of any such objections, and must be filed with this Court no later than 14 days after this notice is mailed, or 10 days after this notice is personally served upon you, or ten days after the second publication of this notice if you are served by publication. All pleadings must be signed before a notary public or Georgia probate court clerk and filing fees must be tendered with your pleadings, unless you qualify to file as an indigent party. Contact probate court personnel at the below address/telephone number for the required amount of filing fees.
Note: If a natural guardian files an objection to the creation of the temporary guardianship, the Petition will be dismissed. If a natural guardian files an objection to the appointment of the petitioner as guardian, or if a parent who is not a natural guardian files an objection to the petition, a hearing on the matter shall be scheduled at a later date.
Wallace Howell Shinkle has petitioned to be appointed Administrator of the estate of Charles Bradley Shinkle, deceased, of said County. The petitioner has also applied for waiver of bond and/or grant of certain powers contained in O.C.G.A. §53-12-261. All interested parties are hereby notified to show cause why said petition should not be granted. All objections to the petition must be in writing, setting forth the grounds of any such objections, and must be filed with the court on or before July 18, 2011. All pleadings/objections must be signed before a notary public or before a probate court clerk and filing fees must be tendered with your pleadings/objections, unless you qualify to file as an indigent party. Contact probate court personnel at the following address/telephone number for the required amount of filing fees. If any objections are filed, a hearing will be scheduled at a later date. If no objections are filed, the petition may be granted without a hearing.
A hearing on a judicial review will be brought before this Court by the Georgia Department of Human Services acting through the Pike County Department of Family and Children Services in the above referenced case on Tuesday, July 19, 2011, at 9:00 a.m. A hearing concerning a Petition to Terminate Parental Rights will be brought before this Court on Tuesday, July 26, 2011, at 9:00 a.m. The final publication hearing on the judicial review and Petition to Terminate Parental Rights will be brought before this Court on Wednesday, August 17, 2011, at 9:00 a.m. Free copies of said pleadings can be obtained from the Clerk of the Juvenile Court of Pike County, Georgia, whose office is located at 16001 Barnesville Street, Zebulon, Georgia 30295.
By reason of an order for service of summons by publication entered on the 14th day of June, 2011, you are hereby commanded to file with the Clerk of the Juvenile Court of Pike County, Georgia and serve upon Tammy M. Griner, Special Assistant Attorney General, P. O. Box 319, Griffin, Georgia 30224 an answer to said pleadings within sixty (60) days of the date of said order for service by publication.
You are further required to lay any and all business aside and to be and appear before the Juvenile Court of Pike County, Georgia at 9:00 o’clock a.m. on Tuesday, July 19, 2011; 9:00 o’clock a.m. on Tuesday, July 26, 2011; and at 9:00 o’clock a.m. on Wednesday, August 17, 2011, then and there to make a defense and to show cause why said Child should not be dealt with according to the provisions of the Juvenile Court Code of Georgia by reason of an order for service of summons by publication.
Witness the Honorable Ben J. Miller, Jr., Judge, this 14th day of June, 2011.
The foregoing is a petition for the termination of your parental rights.
The record with the Petitioner shows that you are the biological father of the above-named child. Therefore, set-out below is an exact copy of the Code section referred to above, which has important information to a biological father concerning his illegitimate child when there is a petition for termination of parental rights.
§15-11-96(g): When notice is given pursuant to subsection (e) of this Code section of division (f)(2)(B)(ii), it shall advise such biological father who is not the legal father that he loses all rights to the Child and will not be entitled to object to the termination of his rights to the child unless, within 30 days of receipt of the notice, he files: (1) a petition to legitimate the child pursuant to O.C.G.A. § 19-7-22; and (2) Notice of the filing of the petition to legitimate with the court in which the action under this Code section is pending. §15-11-96(h): If the biological father who is not the legal father does not file a legitimation petition and give notice as required in subsection (g) of this Code section or division (f)(2)(B)(ii) of this Code section or, if after the filing of the petition he fails to prosecute it to final judgment, he loses all rights to the child and the court shall enter an order terminating all such father’s rights to the chid and such father may not thereafter object to the termination of his rights to the child.
Dated this 14th day of June, 2011.
Notice of Seizure to Personal Property valued at less than $25,000.
Pursuant to O.C.G.A. Sec. 16-13-49, any party claiming an interest in the above referenced property is hereby notified that on the 10th day of June, 2011, said property was seized by the below referenced agency in Pike County, Georgia.
This 21st day of June, 2011.
All creditors of the estate of Charles T. Oden, deceased, late of Suffolk County, Massachusetts, who died owning property in Pike County, Georgia, are hereby notified to render their demands to the undersigned according to law, and all persons indebted to said estate are required to make immediate payment to us.
Plaintiff v.	Flora Diane Dawkins,	Defendant.
By Order for service by publication dated the 26th day of April, 2011, you are hereby notified that on the 12th day of April, 2011, James Ray Dawkins filed a Verified Complaint against you.
You are require to file with the Clerk of the Superior Court, and to serve upon plaintiff’s attorney, Mark D. Oldenburg an Answer in writing within sixty (60) days of the date of the notice of publication.
WITNESS, the Honorable Chris Edwards, Judge of this Superior Court.
This the 28th day of June, 2011.
Pursuant to O.C.G.A. § 16-13-49 any party claiming an interest in the following property is hereby notified that on the 13th day of June, 2011, said property was seized by the below referenced agency in Pike County, Georgia.
This the 27th of June, 2011.
Re: Petition of Eugene W. Dabbs IV for discharge from office and of all liability as executor of the estate of Inez Ogletree Stinchcomb, deceased.
This is to notify you that you are required to file objection, if there is any, to the above referenced petition, in this Court on or before July 18, 2011.
Be further notified: All objections to this petition must be in writing, setting forth the grounds of any such objections. If any objections are filed, a hearing will be scheduled at a later date. If no objections are filed, the petition may be granted without a hearing.
All that tract or parcel of land lying and being in Land Lot 231 of the 8th District of Pike County, Georgia, being more particularly identified as Lot 10, containing 2.00 acres, on a plat of survey captioned “Final Plat Mill Commons”, dated 6/27/03, prepared by S. J. Reeves & Associates, Inc., a copy of which said plat is recorded in Plat Book 21, pages 143-145, of the records of the Clerk of Superior Court of Pike County, Georgia.
All that tract or parcel of land containing 238.597 acres, more or less, lying and being in Land Lot 14 of the 9th District and Land Lots 226, 227, 254 & 255 of the 8th District of Pike County, Georgia, and being more particularly shown and designated as Tract III – 238.597 acres according to that certain plat of survey entitled “Brent Scarborough”, dated February 25, 2003, a copy of which said plat is recorded in Plat Book 21, Page 28, in the Office of the Clerk of Superior Court of Pike County, Georgia.
To the best knowledge and belief of the undersigned, the party in possession of the property is Brent Pike, LLC or a tenant or tenants.
All that tract or parcel of land, together with all improvements located thereon presently known as 1771 Bagwell Road, situate, lying and being in Land Lot 251 of the 9th Land District of Pike County, Georgia, containing 6.44 acres and being more particularly described as “TRACT C” as shown on that certain plat of survey entitled “Plat for Bobby O’Neal and Ruby S. O’Neal”, dated December 2, 1984, of record in plat record 7, page 92, Clerk’s Office, Superior Court, Pike County, Georgia. Said “Tract C has such metes, bounds, location, courses and distances, size, shape and location as shown on said plat of survey, which survey by reference is incorporated into and made a part of this description as fully and completely as copied at length herein.
There is less and excepted from the above described property, the following property: All that tract or parcel of land, situate, lying and being in Land Lot 252 of the 9th Land District of Pike County, Georgia, containing 4.74 acres, more or less, and being designated as AREA: 4.74 +/- on that certain plat of survey entitled, “Property survey for Timothy C. Guy and John A. Hanson”, prepared by N. T. Perdue, RLS #2261 recorded in Plat Record 22 Page 53, Clerk’s Office, Superior Court, Pike County, Georgia. Said AREA: 4.74 +/- has such metes, bounds, courses, distances, size, shape and location as shown on said plat of survey which by reference is incorporated into this description as fully and as completely as if copied at length herein.
The within conveyed property is a part of the property conveyed to Danny O’Neal by Ruby S. O’Neal by Warranty deed, dated June, 1984 of record in Deed Book 91, Page 221, said Clerk’s Office.
This is the identical property conveyed to Ruby S. O’Neal by Warranty Deed of Danny Leon O’Neal, Jr. and Chasity Nan O’Neal Perry dated March 31, 2004, of record in Deed Book 516, page 024, said Clerk’s Office.
Said property is commonly known as 1771 Bagwell Road, Molena, Georgia 30258 together with all fixtures and personal property attached to and constituting a part of said property, if any. To the best knowledge and belief of the undersigned, the party (or parties) in possession of the subject property is (are): Ruby O’Neal aka Ruby S. O’Neal aka Grace S. O’Neal and Bobby O’Neal or tenant or tenants.
All that tract or parcel of land situate, lying and being in land lots 124 & 125 of the ninth land district of Pike County,Georgia, containing 10,000 acres and designated as tract “A-1” on plat of survey entitled “Plat for Jon & Karla Allgood”, dated December 2, 2003, prepared by Moore & Millen land surveying, registered land surveyors, which said plat of survey is incorporated herein and made a part of this description; and according to said plat of survey, said property is more particularly described as follows: beginning at a point which marks the intersection of land lots 100, 101, 124 and 125, and running thence north 87 degrees 52 minutes 24 seconds west a distance of 339.60 feet to the true point of beginning; running thence the following courses and distances; south 09 degrees 18 minutes 54 seconds 207.00 feet; south 01 degree 51 minutes 08 seconds east 314.55 feet; south 16 degrees 23 minutes 13 seconds east 142.36 feet to a point on the northwest right of way line of Old Lifsey Springs Road; thence in a southwesterly direction along said right of way a distance of 31.83 feet to a point; running thence the following courses and distances; north 16 degrees 23 minutes 13 seconds west 156.80 feet; north 01 degree 51 minutes 08 seconds west 316.42 feet; north 09 degrees 18 minutes 54 seconds west 213.20 feet; thence 09 degrees 18 minutes 07 seconds west 148.79 feet; north 19 degrees 22 minutes 41 seconds west 228.14 feet; north 19 degrees 01 minutes 17 seconds west 88.53 feet; north 32 degrees 37 minutes 49 seconds west 153.72 feet; north 01 degree 45 minutes 17 seconds east 223.24 feet; north 38 degrees 31 minutes 53 seconds west 487.23 feet; north 64 degrees 04 minutes 29 seconds east 703.67 feet; south 43 degrees 06 minutes 15 seconds east 333.47 feet; south 64 degrees 04 minutes 29 seconds west 563.36 feet; south 00 degrees 46 minutes 45 seconds east 499.44 feet; south 09 degrees 08 minutes 39 seconds east 377.33 feet, which marks the point of beginning.
To the best of the undersigned’s knowledge, the person(s) in possession of the property is/are Jon L. Allgood and Karla C Allgood. The property, being commonly known as 3024 Old Lifsey Spgs Drive, Molena, GA 30258 in Pike County, will be sold as the property of Jon L. Allgood and Karla C Allgood, subject to any outstanding ad valorem taxes (including taxes which are a lien and not yet due and payable), any matters affecting title to the property which would be disclosed by accurate survey and inspection thereof, and all assessments, liens, encumbrances, restrictions, covenants, and matters of record to the Security Deed.
All that tract or parcel of land containing 1.00 acre, more or less, lying and being in Land Lot 157 of the Second Land District of Pike County, Georgia, and being more particularly shown and designated as Lot 3 containing 1.00 acre according to that certain plat of survey entitled “Survey for Smith Bros. Realty”, dated January 30, 1976, prepared by Louis J. Menchio, GA RLS, a copy of which said plat is recorded in Plat Book 4, page 224, Pike County Superior Court Records, said plat together with the metes, bounds, courses and distances as shown thereon is incorporated herein in aid of this description as fully as if copied at length herein.
The above described property is also known as 2760 Etheridge Mill Road, Griffin, GA 30224.
To the best of the undersigned’s knowledge and belief, possession of the subject property is held by Danny R. Turner and Stephanie J. Turner.
Pursuant to O.C.G.A. § 44-14-162.2, the name, address and telephone number of the individual or entity who shall have the full authority to negotiate, amend or modify all terms of the above described mortgage is as follows: BAC Home Loans Servicing, L.P., Attn: Loss Mitigation Dept., P. O. Box 5170, MS SV314B, Simi Valley, CA 93065, Telephone: 1-800-669-6650. The foregoing notwithstanding, nothing in O.C.G.A. § 44-14-162.2 shall be construed to require BAC Home Loans Servicing, LP as servicer for The Bank of New York Mellon FKA The Bank of New York, as trustee for the certificateholders of CWALT, INC., Alternative Loan Trust 2005-86CB, Mortgage Pass-Through Certificates, Series 2005-86CB to negotiate, amend or modify the terms of the Deed to Secure Debt described herein.
Said property will be sold as the property of Debra L. Christian aka Debra Christian and Paula Marie Brown and the proceeds of said sale will be applied to the payment of said indebtedness, the expense of said sale, all as provided in said deed, and the undersigned will execute a deed to the purchaser as provided in the aforementioned Security Deed.


In Noel Canning v. NLRB,2 the court invalidated Obama’s January 2012 invocation of his recess appointments power to name three members to the National Labor Relations Board (NLRB). The panel unanimously concluded that the recess appointments power was available to presidents only between sessions of Congress. Yet well over 300 federal officials since 1981 have received such appointments during congressional sessions.
Two of the three judges went further. They interpreted the recess appointments power as applying only to offices that first become vacant between sessions of Congress. That holding would likely invalidate most of the more than 300 additional recess appointments that presidents since Reagan have made between congressional sessions.
When the Democrats regained control of the Senate in 2007, they began a practice of conducting so-called “pro forma sessions” during those recesses that occur within sessions of Congress. These pro forma sessions typically last only a couple of minutes, if that, during which the only business conducted—often by a single senator—is simply a call to order and adjournment until the next pro forma session. Senate Majority Leader Harry Reid (D-Nev.)—now a supporter of the contested Obama appointments—originally took the position that such pro forma sessions converted otherwise lengthy recesses into shorter adjournments, each of which would be too brief to trigger the president’s recess appointments power.4 Although apparently advised by the Justice Department that his recess appointments power remained intact,5 President George W. Bush declined to challenge the Reid strategy.
Between Dec. 17, 2011 and Jan. 23, 2012, the Senate again met only during ten pro forma sessions—but this time, not at the Democrats’ behest. Article I, Section 5 of the Constitution provides that “[n]either House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days … .” The evident purpose of this clause is to enable each House to keep the other in town in order to assure that business between them may be conducted. House Republicans, however—who were by no means staying in town to conduct business of their own—used this clause to deny the Senate permission to adjourn for more than three days between the end of the first and the start of the second session of the 112th Congress. The intent, once again, was to block presidential recess appointments.
Against this procedural background, Obama faced a late 2011 administrative crisis involving two federal agencies. Obama had nominated labor attorney Craig Becker to the NLRB on July 9, 2009. When Senate Republicans filibustered Becker’s confirmation vote, Obama gave him a recess appointment to the Board over eight months later, on March 28, 2010. He resubmitted the nomination on Jan. 26, 2011, but the Republicans persisted in their filibuster. Republicans also prevented a vote on a second January, 2011 nominee, Terrence F. Flynn.
As a result of these filibusters, the NLRB was facing a calamity brought on by the Supreme Court’s 2010 decision in a case called New Process Steel v. NLRB.6 The Court there interpreted the National Labor Relations Act to require three lawfully participating members to be in place in order for the NLRB to act. The expiration of the 2010 Becker recess appointment threatened to reduce the Board’s membership to two. Thus, on Dec. 14, 2011, Obama withdrew the Becker nomination and forwarded to the Senate nominations for Sharon Block and Richard F. Griffin Jr. When the Senate predictably did not act on these nominations by the end of the first session of the 112th Congress, Obama set the stage for Noel Canning v. NLRB by giving recess appointments to Block and Griffin—and to Terrence F. Flynn—on Jan. 4, 2012.
Although the Noel Canning decision technically dealt only with these three NLRB appointments, Obama also made a fourth recess appointment on Jan. 4, 2012. He appointed Richard Cordray to head the Consumer Financial Protection Bureau (CFPB) created by the Dodd-Frank Act. The Senate had sat on the Cordray nomination since July 18, 2011, because of Republican hopes to force an amendment to the Act that would convert the CFPB into a multi-member commission. Because the Dodd-Frank Act conditions certain of the agency’s powers on the appointment of the agency head,7 a vacancy in the director’s position would disable the CFPB from carrying out a number of its significant supervisory, enforcement, and rulemaking powers.
Noel Canning, a Pepsi-Cola bottling firm in Yakima, Washington, sued in the D.C. Circuit to overturn an NLRB order finding that management had unlawfully refused to enter into a collective bargaining agreement with the Teamsters local representing its production employees. A panel comprising Judges David Sentelle, Karen Henderson, and Thomas Griffith— appointees of Presidents Reagan, Bush 41 and Bush 43, respectively—concluded that the NLRB’s decision was legally supportable, but that it could not be enforced. The panel held that the Obama recess appointments were invalid and that, without them, the NLRB lacked the necessary quorum to conduct business.
Judge Sentelle’s opinion for the court reached its conclusion based on what it took to be the original “public meaning” of the Recess Appointments Clause. The panel determined that the phrase “the recess” in that clause would have been understood in the late 18th century to refer only to the period of adjournment between two sessions of Congress. Because the second session of the 112th Congress convened on Jan. 3, 2012, the court reasoned that appointments made on Jan. 4 were impermissible “intrasession” appointments.
Judge Sentelle went on to argue further, with only Judge Henderson in concurrence, that the original meaning of “happen” in the Recess Appointments Clause was “to occur.” For that reason, he wrote, the Recess Appointments Clause, properly read, would allow presidents to fill only those vacancies that first arise during recesses between sessions of Congress. Under this reasoning, the president could not legally fill a vacancy created by an official’s death even a day prior to the Senate’s adjournment, no matter how long the Senate remained in recess.
The court insisted that its strict reading of the Recess Appointments Clause was necessary to preserve the Senate’s critical confirmation role in the process of appointing officers of the United States, and to create a bright-line rule susceptible to objective judicial enforcement.
For lawyers, two things are immediately noteworthy about the Noel Canning opinion. The first is that the court struck down the Obama appointees on the broadest constitutional ground imaginable. The panel could have decided the case against the NLRB by concluding that, whether or not the Recess Appointments Clause permits intrasession appointments, adjournments of three days are too short to count as a “recess,” and that the 2012 pro forma sessions effectively divided what would have been a 20-day recess into a series of mere three-day breaks. That analysis is debatable, but it would have had the obvious virtue of avoiding the unnecessary decision of larger constitutional issues. The Supreme Court has repeatedly described judicial modesty as the appropriate stance to take in conducting judicial review.
Second, the D.C. panel reached its conclusions despite significant contrary custom and authority. Presidents since the 1820s have consistently taken the position that vacancies “happen” during a recess of the Senate if they “happen to exist” during that recess. Congress itself effectively ratified that position in enacting the so-called Pay Act,8 which allows recess appointees to receive their salaries even if they were appointed to vacancies that occurred when the Senate was in session. The narrow reading of “happen” on which Noel Canning relies has been rejected by earlier opinions of the Second,9 Ninth,10 and Eleventh11 Circuits.
OLC observed in its 2012 opinion that the Senate’s 2011 and 2012 pro forma sessions were conducted pursuant to a unanimous consent resolution that had provided there would be “no business conducted” during those sessions.15 As viewed, therefore, by Obama, the pro forma sessions left unchanged the reality that the Senate was unavailable from Jan. 3 to Jan. 23, 2012 to act on nominations. The pro forma sessions left the “recess” intact.
The strongest argument in support of the president’s position rests on the proposition that the Constitution intends that the President to take the leading role in staffing the executive branch. Urging New Yorkers to ratify the Constitution, Alexander Hamilton explained the design of the appointments process in these terms: “[O]ne man of discernment is better fitted to analyze and estimate the peculiar qualities adapted to particular offices, than a body of men of equal or perhaps even of superior discernment.”19 The Senate was given a role in the appointments process not to impede the President’s policy agenda, but as a check on potential corruption: “[The Senate] would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”20 Protecting the Senate’s confirmation role at the expense of the President’s appointments responsibility turns the constitutional design on its head.
If the President’s position is rejected, then presidents—who are constitutionally charged to “take Care that the Laws be faithfully executed”21—could be stymied permanently in the execution of their administrative responsibilities by a Senate minority determined to block appointments. Executive administration could even be blocked by a House of Representatives intent, as was the 2011 House, on disabling a Senate majority from adjourning. Because there is no plausible argument to be made that the House is intended to have a role in the appointments process, this perverse result is a powerful argument that “recesses” do not change their constitutional character because of pro forma sessions or, alternatively, that three-day breaks count as constitutional “recesses.” Three-day breaks are the longest periods of adjournment that the Senate may take without regard to the wishes of the House.
The textual arguments that the D.C. Circuit mustered for the narrowest possible reading of the President’s appointments power are weak. There is significant evidence that the Founding Generation understood a legislative “recess” to be a break that could occur either within or between legislative sessions. There is likewise evidence that 18th century readers would have understood the word “happen” to mean “happen to exist.” A straightforward textual reading of the President’s power “to fill up all vacancies that may happen during the recess of the Senate” would validate his authority “to fill up, during a period of adjournment either within or between sessions of the Senate, all vacancies that may happen to exist during that period of adjournment.” This is plainly the most practical reading of the Recess Appointments Clause, and the D.C. Circuit opinion rejecting it has the feel of semantic cherry-picking.
Standing on its own, Noel Canning is of limited practical significance. It affects only one NLRB order and is binding precedent only in the D.C. Circuit. The NLRB has continued to hear and decide cases notwithstanding its D.C. Circuit loss.
As well summarized, however, in an April, 2013 Congressional Research Service report,22 the potential impacts of the decision go much further. In the year between the disputed recess appointments and the D.C. Circuit’s opinion, the NLRB ruled on over 200 cases, any of which could be challenged in litigation on recess appointments grounds. Over 60 published decisions have been rendered by the Board since Noel Canning, along with a yet larger number of unpublished orders. Any party aggrieved by an NLRB decision has the discretion to appeal that decision to the U.S. Court of Appeals for the District of Columbia Circuit, which now obviously poses a problem for the enforcement of future NLRB orders.
Aggrieved parties might also use Noel Canning to challenge actions undertaken by the Consumer Finance Protection Bureau. The Dodd-Frank Act transferred to the CFPB a variety of supervision, enforcement and rulemaking powers previously delegated to other agencies, which the Act also permitted the Secretary of the Treasury to implement prior to the “confirmation” of a CFPB Director. A significant number of additional authorities, however, were vested exclusively in the Director, once duly in office.
Based on Noel Canning, all the rulemaking and enforcement actions undertaken by Director Richard Cordray are susceptible to a recess appointments challenge. Should the director’s appointment be invalidated, however, his exercise of any powers merely transferred to the CFPB from other agencies could be subsequently ratified by action of the Secretary of the Treasury, to whom those powers would revert.
The government has asked the Supreme Court to hear Noel Canning, and it would be surprising for the Court not to do so. The importance of the issues, the conflict in the circuits, and the expansiveness of the D.C. Circuit rationale all augur for Supreme Court review.
Predicting the outcome, however, is all but impossible. The Court is unlikely to adopt the D.C. Circuit’s reasoning because it goes so far beyond what is necessary to decide the case. That leaves, however, at least three options for the Court: It could uphold the Obama appointments because a three-day break is a recess or because the pro forma sessions left the relevant 20-day recess intact. It could uphold the Obama appointments because intrasession recess appointments to fill vacancies that arose at any time are constitutionally permissible, and the length of adjournment necessary to constitute a “recess” is best regarded as a political question to be fought out between the executive and legislative branches. Or, the Court could overturn the appointments following the more modest rationale that three days are too short to count as a “recess,” and the Jan. 3-23 “recess” was no more than a series of three-day breaks.
For Justices Scalia and Thomas, the D.C. Circuit’s textualist methodology will be attractive, but its execution by the lower court was clumsy. These Justices will also be aware that the D.C. Circuit’s reasoning could seriously weaken the presidency as an institution, and each is a reliable defender of executive power in almost all constitutional contexts. The same is likely true of Chief Justice Roberts and Justices Alito and Kennedy. They will not be oblivious to the institutional implications of deciding the case against the NLRB.
On the other hand, the current Justice best known for a pragmatic style of constitutional interpretation—Justice Breyer—is also an institutional veteran of the Senate, having served as both a Special Counsel and later as Chief Counsel to the Senate Judiciary Committee. He will not be dismissive of the Senate’s role in the confirmation process.
In short, the recess appointments issue—occurring at the confluence of concerns over executive power, constitutional interpretation, and party politics—resists easy categorization. The Noel Canning reasoning is unlikely to survive. Beyond that, we can only guess.
What many observers have characterized as a breakdown in the process of nomination and confirmation highlights a critical feature of constitutional government: The effective operation of the separation of powers system depends as much on informal norms or customs as it does on the constitutional text. Until recent years, presidents and Senates have generally behaved as though recess appointments should be rare, and nominees—especially to noncontroversial positions—should receive relatively prompt Senate up-or-down votes. Constitutional text, however, guarantees neither proposition, and recent behavior threatens to eviscerate these understandings.
A September, 2012 Congressional Research Service report documented the breakdown in norms by examining delays in Senate floor votes on noncontroversial presidential nominees to lower court judgeships.26 The report focused on nominees whom the Senate Judiciary Committee approved either by voice vote or unanimous roll call, and whose nominations were eventually approved by the full Senate with five or fewer dissenters. The report found: “For uncontroversial circuit court nominees, the mean and median number of days from nomination to confirmation ranged from a low of 64.5 and 44.0 days, respectively, during the Reagan presidency to a high of 227.3 and 218.0 days, respectively, during the Obama presidency…For uncontroversial district court nominees, the mean and median number of days from nomination to confirmation ranged from a low of 69.9 and 41.0 days, respectively, during the Reagan presidency to a high of 204.8 and 208.0 days, respectively, during the Obama presidency.”27 In other words, as compared to the Reagan years, the Senate is taking somewhere between three and five times longer, on average, to confirm judicial nominees about whom there is virtually no disagreement.
If the Obama appointments are upheld and if the pattern of Senate obstruction persists, one can reasonably predict far more recess appointments in the future. Of course, presidents will always have significant disincentives to use recess appointments. Such appointments can antagonize senators whose support is necessary for other business. They reduce stability in administration. When used for judges, recess appointments create the dangerous situation that cases supposed to be decided by appointees with life tenure are instead decided by judges who are effectively on probation and too easily worried about alienating the Senate that has to vote on them.
But recess appointments are a president’s primary tool for pushing back against Senate intransigence. If Senate filibusters persist, and should minority Senators block nominations in hopes of stalling agencies out of business, presidents will have no real alternative to ratcheting up the recess appointment device.
If Noel Canning is upheld, then the future depends on the grounds for decision. Should the Supreme Court agree with the D.C. Circuit that recess appointments are permissible only during intersession recesses and only for positions that first become vacant during those recesses, recess appointments will likely disappear—or presidents may engage in their own “creative” tactics, insisting on resignations during intersession recesses so that the resulting vacancies can be immediately filled.
On the other hand, if the Obama appointments are nullified only because three-day adjournments are not “recesses,” and pro forma sessions effectively break recesses into three-day breaks, then much will depend on the response of future Senates. Recess appointments will continue when the party that occupies the White House controls both the Senate and House. The Senate will not worry about recess appointments by a president of the majority party, and the House will not disable the Senate from recessing for lengthy periods.
If, however, either the House or the Senate is controlled by a party different from the president’s, then the pro forma session appointments block is likely to be institutionalized. If the opposing party controls the Senate, the Senate will adopt pro forma sessions on its own initiative. If the opposing party controls only the House, the House will use its Article I power to prevent the Senate from adjourning for more than three days.
This last scenario—the scenario that actually played out in 2011 and 2012—raises yet another dramatic possibility for the breakdown of constitutional norms. The Senate could take the position that it need not comply with the House’s Article I objections to adjournment unless the House itself remains in session—which the House may well resist doing. In other words, a Senate controlled by the president’s party could ignore the House’s lack of consent to adjourn if it regards the objection as illegitimate. The Senate could simply adjourn sine die at will. The House would have no legal remedy against the Senate, and the decline in institutional comity that seems to have overtaken the federal government since 1981 will accelerate.
 Henry Hogue, et al., The Noel Canning Decision and Recess Appointments Made from 1981-2013, at 4 (CRS Feb. 4, 2013) (tabulating presidential recess appointments since 1981).
 705 F.3d 490 (D.C. Cir. 2013).
 U.S. Const., Art. II, § 2, ¶ 3.
 Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions (O.L.C. Jan. 6, 2012) [hereafter, OLC Recess Appointments Opinion], citing 154 Cong. Rec. S7558 (daily ed. July 28, 2008) (statement of Sen. Reid), and 153 Cong. Rec. S14609 (daily ed. Nov. 16, 2007) (statement of Sen. Reid) (“[T]he Senate will be coming in for pro forma sessions . . . to prevent recess appointments.”).
 Id., at 4, citing Memorandum to File, from John P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Lawfulness of Making Recess Appointment During Adjournment of the Senate Notwithstanding Periodic “Pro Forma Sessions” (Jan. 9, 2009).
 130 S. Ct. 2635 (2010).
 United States v. Allocco, 305 F.2d 704 (2nd Cir. 1962).
 United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985).
 Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004).
 S. Rept. No. 4839, 58th Cong., 3rd Sess. 3823-3824 (1905), quoted in Precedents of the House of Representatives, § 6687, at 852-853.
 157 Cong. Rec. S8783 (Dec. 17, 2011).
 Statement of Charles J. Cooper Before the House Committee on Education and the Workforce Concerning “The NLRB Recess Appointments: Implications for America’s Workers and Employers,” 2 (Feb. 7, 2012), available at http://edworkforce.house.gov/uploadedfiles/02.07.12_cooper.pdf.
 157 Cong. Rec. S8789 (Dec. 23, 2011).
 OLC Recess Appointments Opinion, supra note 4, at 9 n. 17.
 The Federalist, No. 76 (Hamilton).
 U.S. Const., Art. II, § 3.
 David H. Carpenter and Todd Garvey, Practical Implications of Noel Canning on the NLRB and CFPB (CRS Apr. 1, 2013).
 Ryder v. United States, 515 U.S. 177, 180 (1995).
 Carpenter and Garvey, supra note 22, at 10.
 Barry J. McMillion, Length of Time from Nomination to Confirmation for “Uncontroversial” U.S. Circuit and District Court Nominees: Detailed Analysis, at 2 (CRS Sept. 18, 2012).
Much of my writing on the constitutional separation of powers and checks and balances in operation is directed at the central importance of informal norms to effective government. Chief Justice Hughes famously wrote that “[b]ehind the words of the constitutional provisions are postulates which limit and control.” A subtle, but intimately related point is that our constitutional plan cannot work unless the competing institutions (and those in charge of them) agree on some common overarching values and on certain general understandings as to shared aims and the limits of unilateral power.
If you think the text of the Constitution provides sufficient guidance by itself to keep the government operating, do a few thought experiments. Imagine that the Senate and House had adopted a custom early on that each would unanimously reapprove any legislation returned to Congress with a presidential veto. Nothing in the Constitution forbids such a practice.
Imagine that Congress had read the Constitution to allow the House to impeach presidents for acts of lesser magnitude than “high Crimes or Misdemeanors,” providing that conviction carried some punishment short of removal. Don’t believe the constitutional text permits this? Read it.
These things did not happen, I presume, because Congress recognized that such “customs” would eviscerate the contemplated co-equality of the executive and legislative branches. But not a word of constitutional text would have cast doubt on these practices.
What we are witnessing today in depressing, even contemptible form is a GOP-led congressional subversion of two of the most elementary norms on which our government rests. The first is the proposition that the government should actually function. Agencies Congress has created and to which it has delegated administrative responsibilities should discharge those responsibilities efficiently and effectively. The second is that the president is primarily responsible for achieving effective administration and, toward that end, he is entitled to significant, if not controlling deference by the Senate in his choice of individuals to head government agencies.
The D.C. Circuit opinion in Noel Canning v. NLRB is precedent only for a single circuit. It conflicts with contrary holdings of the Second , Ninth, and Eleventh Circuits. Its reasoning is debatable, to put the matter gently. The Supreme Court will undoubtedly resolve the matter eventually.
But, as absurd as is Sen. Alexander’s pretended unawareness of how judicial review operates is his utter disregard for the efficient transaction of business at the NLRB. As Suffolk University law professor Renee M. Landers pointed out last month to an American Bar Association program, the NLRB, during the year between the Griffin and Block appointments and the Noel Canning decision, rendered over 200 published opinions and over 500 unpublished orders. Resignations by Members Block and Griffin would presumably delay the resolution of hundreds of additional matters before the Supreme Court can decide Noel Canning. All personnel, administrative, and procurement actions requiring Board approval would grind to a halt. Such disregard for the interests of both management and labor would be feckless.
Fortunately, the Board has taken the position that “parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.” Should the Court ultimately invalidate the Block and Griffin appointments, it might well decide to validate the actions taking during their service by virtue of the “de facto officer” doctrine. That was the Court’s approach to the Federal Election Commission even as it invalidated its structure in Buckley v. Valeo. Members Block and Griffin are serving the public well by staying put and doing their jobs.
It is the contemptible indifference to effective government that ties the NLRB dispute to the now-unfolding imbroglio concerning the Internal Revenue Service. Although Republicans are comparing the IRS targeting of Tea Party groups to what happened in the Nixon Administration, the current scandal is actually the opposite of the Nixon scandal.
There is no evidence, however, that the Obama White House acted personally to direct the IRS to do anything. All currently available indications are to the contrary. What is more, they did not even have a political appointee atop the IRS through which it could execute any such plan. What we are witnessing is the dysfunction possible when no one with the heft of a Senate-confirmed appointment is at the helm of an important agency.
During the events in question, the Commissioner of Internal Revenue was Douglas H. Shulman, a George W. Bush appointee. When he resigned after the 2012 election rather than serving the fifth year of his term, he was replaced by an acting Commissioner, Steven T. Miller, actually a civil service employee serving also as Deputy Commissioner for Services and Enforcement. Trusting civil service employees to perform in the Acting Commissioner role is apparently the pattern at IRS, which is fine as long as the Service does its job without controversy. But having an Acting Commissioner in charge of an agency when serious issues arise is problematic for a variety of reasons.
First, an acting commissioner drawn from the civil service has virtually no relationship with Congress. He or she has gone through no confirmation process, has laid no groundwork of trust with oversight committees, and is unlikely to carry much weight as an agency advocate. Further, an acting commissioner is not likely to have any real sense of accountability to the president.
President Obama has not nominated anyone since Mr. Shulman’s resignation to serve as Commissioner, and it is not hard to guess why. Republican Senators have deferred so little to the president in even his cabinet choices, stooping even to parliamentary tricks to prevent committee votes on Secretary of Labor EPA Administrator nominees, that the White House presumably saw little point to expending political capital getting Republicans to confirm a political head to an agency that they so vociferously detest. (Consider that, on May 15, the Senate voted 91-7 to confirm Marilyn Tavenner to be administrator of the Centers for Medicare and Medicaid Services. She was nominated for the position on December 1, 2011.) By denying President Obama the routine capacity to staff administrative leadership positions with qualified persons of his choosing – even officials about whom no real controversy exists — Senate Republicans have weakened the White House’s hand in accomplishing even the bureaucratic discipline that the GOP ostensibly would approve.
Interestingly, should President Obama lose Noel Canning in the Supreme Court, he would not be without recourse for recess appointments. He could wait for the House to object to the Senate’s going on intersession recess and then force the adjournment of Congress for at least three weeks, during which he could fill every vacancy in the executive branch with a recess appointment. That would be an unprecedented breach of interbranch norms. It would be executive overreach at its worst — or close to it. But the constitutional text permits it — see Article II, section 3 — and really, how much worse can things get?


Appellants brought a declaratory judgment action in the Supreme Court of New York, Kings County, praying that § 12-a of the Civil Service Law, [n1] as implemented by [p487] the so-called Feinberg Law, [n2] be declared unconstitutional, and that action by the Board of Education of the City of New York thereunder be enjoined. On motion for judgment on the pleadings, the court held that subdivision (c) of § 12-a, the Feinberg Law, and the Rules of the State Board of Regents promulgated thereunder violated the Due Process Clause of the Fourteenth Amendment, and issued an injunction. 196 Misc. 873, 95 N.Y.S.2d 114. The Appellate Division of the Supreme Court reversed, 276 App.Div. 527, 96 N.Y.S.2d 466, and the Court of Appeals affirmed the judgment of the Appellate Division, 301 N.Y. 476, 95 N.E.2d 806. The appellants come here by appeal under 28 U.S.C. § 1257.
Section 12-a of the Civil Service Law, hereafter referred to as § 12-a, is set forth in the margin. [n3] To implement [p488] this law, the Feinberg Law was passed, adding a new section, § 3022, to the Education Law of the State of New York, which section, so far as here pertinent, is set forth in the margin. [n4] The Feinberg Law was also to implement [p489] § 3021 of the Education Law of New York. [n5] The constitutionality of this section was not attacked in the proceedings below.
The preamble of the Feinberg Law, § 1, makes elaborate findings that members of subversive groups, particularly of the Communist Party and its affiliated organizations, have been infiltrating into public employment in the public schools of the State; that this has occurred and continues notwithstanding the existence of protective statutes designed to prevent the appointment to or retention in employment in public office, and particularly in the public schools, of members of any organizations which teach or advocate that the government of the United States or of any state or political subdivision thereof shall be overthrown by force or violence or by any other unlawful means. As a result, propaganda can be disseminated among the children by those who teach them and to whom they look for guidance, authority, and leadership. The Legislature further found that the members of such groups use their positions to advocate and teach their doctrines, and are frequently bound by [p490] oath, agreement, pledge, or understanding to follow, advocate and teach a prescribed party line or group dogma or doctrine without regard to truth or free inquiry. This propaganda, the Legislature declared, is sufficiently subtle to escape detection in the classroom; thus, the menace of such infiltration into the classroom is difficult to measure. Finally, to protect the children from such influence, it was thought essential that the laws prohibiting members of such groups, such as the Communist Party or its affiliated organizations, from obtaining or retaining employment in the public schools be rigorously enforced. It is the purpose of the Feinberg Law to provide for the disqualification and removal of superintendents of schools, teachers, and employees in the public schools in any city or school district of the State who advocate the overthrow of the Government by unlawful means or who are members of organizations which have a like purpose.
The Board of Regents is further authorized to provide in rules and regulations, and has so provided, that membership in any listed organization, after notice and hearing, "shall constitute prima facie evidence for disqualification [p491] for appointment to or retention in any office or position in the school system"; [n6] but before one who is an employee or seeks employment is severed from or denied employment, he likewise must be given a full hearing with the privilege of being represented by counsel and the right to judicial review. [n7] It is § 1-a of the Civil Service Law, as implemented by the Feinberg Law as above indicated, that is under attack here.
It is first argued that the Feinberg Law and the rules promulgated thereunder constitute an abridgment of the [p492] freedom of speech and assembly of persons employed or seeking employment in the public schools of the State of New York.
It is clear that such persons have the right under our law to assemble, speak, think and believe as they will. Communications Assn. v. Douds, 339 U.S. 382. It is equally clear that they have no right to work for the State in the school system on their own terms. United Public Workers v. Mitchell, 330 U.S. 75. They may work for the school system upon the reasonable terms laid down by the proper authorities of New York. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not. Such persons are or may be denied, under the statutes in question, the privilege of working for the school system of the State of New York because, first, of their advocacy of the overthrow of the government by force or violence, or, secondly, by unexplained membership in an organization found by the school authorities, after notice and hearing, to teach and advocate the overthrow of the government by force or violence, and known by such persons to have such purpose.
We think that a municipal employer is not disabled because it is an agency of the State from inquiring of its employees as to matters that may prove relevant to their fitness and suitability for the public service. Past conduct may well relate to present fitness; past loyalty may have a reasonable relationship [p493] to present and future trust. Both are commonly inquired into in determining fitness for both high and low positions in private industry, and are not less relevant in public employment.
341 U.S. at p. 720.
It is next argued by appellants that the provision in § 3022 directing the Board of Regents to provide in rules and regulations that membership in any organization listed by the Board after notice and hearing, with provision for review in accordance with the statute, shall constitute prima facie evidence of disqualification, denies due process, because the fact found bears no relation to the fact presumed. In other words, from the fact found that the organization was one that advocated the overthrow of government by unlawful means and that the person employed or to be employed was a member of the organization and knew of its purpose, [n8] to presume that such member is disqualified for employment is so unreasonable as to be a denial of due process of law. We do not agree.
The law of evidence is full of presumptions either of fact or law. The former are, of course, disputable, and the strength of any inference of one fact from proof of another depends upon the generality of the experience upon which it is founded. . . .
Legislation providing that proof of one fact shall constitute prima facie evidence of the main fact in issue is but to enact a rule of evidence, and quite within the general power of government. Statutes, National and state, dealing with such methods of proof in both civil and criminal cases abound, and the decisions upholding them, are numerous.
Mobile, J. & K.C. R. Co. v. Turnipseed, 219 U.S. 35, at p. 42.
The presumption growing out of a prima facie case . . . remains only so long as there is no substantial evidence to the contrary. When that is offered the presumption disappears, and unless met by further proof there is nothing to justify a finding based solely upon it.
Thus, the phrase "prima facie evidence of disqualification," as used in the statute, imports a hearing at which one who seeks appointment to or retention in a public school position shall be afforded an opportunity to present substantial evidence contrary to the presumption sanctioned by the prima facie evidence for which subdivision 2 of section 3022 makes provision. Once such contrary evidence has been received, however, the official who made the order of ineligibility has thereafter the burden of sustaining the validity of that order by a fair preponderance of the evidence. (Civil Service Law, § 12-a, subd. [d].) Should an order of ineligibility then issue, the party aggrieved thereby may avail himself of the provisions for review prescribed by [p496] the section of the statute last cited above. In that view there here arises no question of procedural due process.
Without raising in the complaint or in the proceedings in the lower courts the question of the constitutionality of § 3021 of the Education Law of New York, appellants urge here for the first time that this section is unconstitutionally vague. The question is not before us. We will not pass upon the constitutionality of a state statute before the state courts have had an opportunity to do so. Asbury Hospital v. Cass County, 326 U.S. 207, 213-216; Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 460-462; Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531, 546.
1. N.Y.Laws 1939, c. 547, as amended N.Y.Laws 1940, c. 564.
2. N Y.Laws 1949, e. 360.
(d) A person dismissed or declared ineligible may within four months of such dismissal or declaration of ineligibility be entitled to petition for an order to show cause signed by a justice of the supreme court, why a hearing on such charges should not be had. Until the final judgment on said hearing is entered, the order to show cause shall stay the effect of any order of dismissal or ineligibility based on the provisions of this section. The hearing shall consist of the taking of testimony in open court with opportunity for cross-examination. The burden of sustaining the validity of the order of dismissal or ineligibility by a fair preponderance of the credible evidence shall be upon the person making such dismissal or order of ineligibility.
1. The board of regents shall adopt, promulgate, and enforce rules and regulations for the disqualification or removal of superintendents of schools, teachers or employees in the public schools in any city or school district of the state who violate the provisions of section three thousand twenty-one of this article or who are ineligible for appointment to or retention in any office or position in such public schools on any of the grounds set forth in section twelve-a of the civil service law and shall provide therein appropriate methods and procedure for the enforcement of such sections of this article and the civil service law.
2. The board of regents shall, after inquiry, and after such notice and hearing as may be appropriate, make a listing of organizations which it finds to be subversive in that they advocate, advise, teach or embrace the doctrine that the government of the United States or of any state or of any political subdivision thereof shall be overthrown or overturned by force, violence or any unlawful means, or that they advocate, advise, teach or embrace the duty, necessity or propriety of adopting any such doctrine, as set forth in section twelve-a of the civil service law. Such listings may be amended and revised from time to time. The board, in making such inquiry, may utilize any similar listings or designations promulgated by any federal agency or authority authorized by federal law, regulation or executive order, and for the purposes of such inquiry, the board may request and receive from such federal agencies or authorities any supporting material or evidence that may be made available to it. The board of regents shall provide in the rules and regulations required by subdivision one hereof that membership in any such organization included in such listing made by it shall constitute prima facie evidence of disqualification for appointment to or retention in any office or position in the public schools of the state.
2. List of subversive organizations to be issued. Pursuant to chapter 360 of the Laws of 1949, the Board of Regents will issue a list, which may be amended and revised from time to time, of organizations which the Board finds to be subversive in that they advocate, advise, teach or embrace the doctrine that the Government of the United States, or of any state or of any political subdivision thereof, shall be overthrown or overturned by force, violence or any unlawful means, or that they advocate, advise, teach or embrace the duty, necessity or propriety of adopting any such doctrine, as set forth in section 12-a of the Civil Service Law. Evidence of membership in any organization so listed on or after the tenth day subsequent to the date of official promulgation of such list shall constitute prima facie evidence of disqualification for appointment to or retention of any office or position in the school system. Evidence of membership in such an organization prior to said day shall be presumptive evidence that membership has continued, in the absence of a showing that such membership has been terminated in good faith.
In all cases all rights to a fair trial, representation by counsel and appeal or court review as provided by statute or the Constitution shall be scrupulously observed.
8. In the proceedings below, both the Appellate Division of the Supreme Court and the Court of Appeals construed the statute to require such knowledge. 276 App.Div. 527, 530, 96 N.Y.S.2d 466, 470-471; 301 N.Y. 476, 494, 95 N.E.2d 806, 814-815.


payment from receivers of the railroad, subsequently appointed, if the moneys were traced into their hands, they are not so traced by showing that, for years which elapsed between the time of the overcharges and the transfer of the railroad property from the receivership to a new company, the old company and the receivers had at all times, in banks on which checks for current expenses were drawn, an aggregate working balance largely exceeding the claim. P. 274 U. S. 309.
2. The equitable doctrine giving preferential payment out of operating income accruing during a railroad receivership to debts previously incurred by the railroad corporation for labor, supplies, etc., does not apply to liabilities for excess charges illegally exacted of a shipper which accrued many years before the receivership began. P. 274 U. S. 310.
3. A claim to recover excess transportation charges which arose many years before the property of the railroad making them went into the hands of receivers and passed to a new company cannot be allowed preferential payment on the ground of public policy. P. 274 U. S. 311.
4. A provision in a decree foreclosing a railway mortgage which exempted the purchaser from paying claims not already presented in accordance with orders theretofore made, excepting claims which might "arise" after entry of the decree, is to be construed as employing the term "arise" in the sense of "accrue," and a claim for overcharges against the mortgagor railroad arose in that sense at least as early as the time when the claimant obtained his reparation order from the Interstate Commerce Commission, and not when judgment was recovered upon the order. P. 274 U. S. 312.
5. An unsecured creditor of an insolvent railroad has no standing to attack a reorganization plan upon the ground that he was not offered an opportunity to participate, when his exclusion was due to his own failure to file his claim in the foreclosure suit within the time limited by an order. P. 274 U. S. 313.
6. In this connection, it is immaterial that the excluded creditor had no actual knowledge of the order limiting time for filing claims, notice by publication being legally sufficient; nor did the fact that his claim was being contested in other litigation prevent him from filing it on time. P. 274 U. S. 313.
resisted by the railroad, the receivers, and counsel for the new company, successively, and where, having recovered judgment after the sale, he appeared at the hearing on the order to. confirm the sale and gave notice to the old company, the receivers, the reorganization committee, and the new company of his claim and that the judgment would be a charge on the property in the hands of the purchaser, notwithstanding which the new company continued defending his suit and the new securities were issued, held that the creditor was not guilty of laches; that his failure to file his claim within the time limited in the foreclosure case, and thus conform to the terms of the reorganization plan, did not bar him from participating in its benefits with the other unsecured creditors, if that were still equitably possible, and that such relief might be had as well upon an intervening petition as upon an original bill. P. 274 U. S. 314.
14 F.2d 284 reversed in part, affirmed in part.
Certiorari (273 U.S. 680) to a decree of the circuit court of appeals which reversed a decree of the district court dismissing an intervening petition in a railroad foreclosure suit.
In 1913, the Federal Court for Eastern Missouri appointed receivers for the St. Louis & San Francisco Railroad. In 1916, the system was sold on foreclosure, was purchased for the reorganization committee, and was conveyed to the St. Louis-San Francisco Railway Company, which has operated it since. In 1920, Spiller recovered in the Federal Court for Western Missouri a judgment against the old company in personam for $30,212.31 and for counsel fees taxed as costs pursuant to § 16 of the Act to Regulate Commerce. [Footnote 1] Thereupon he filed in the receivership suit, [Footnote 2] upon leave granted, an intervening petition praying that the judgment be satisfied out of the property so acquired by the new company. The master recommended that the prayers of the petition be granted. The district court denied Spiller any relief and dismissed the intervening petition, without costs to either party. 288 F. 612. The circuit court of appeals reversed the decree, remanded the case to the lower court with directions to enter a decree for Spiller in the amount of the judgment, with interest but without counsel fees, declared that the judgment was prior in lien and superior in equity to the mortgages of the old company, and directed that it be enforced against the property conveyed to the new company. 14 F.2d 284. This Court granted the petition of the two companies for a writ of certiorari. 273 U.S. 680.
in 1916, after the foreclosure sale and before confirmation thereof, was reversed by the circuit court of appeals in 1918, and was reinstated by this Court in 1920. Spiller v. Atchison, Topeka & Santa Fe Ry. Co., 253 U. S. 117. It is for overcharges collected by the old company in 1906, 1907, and 1908 under a freight tariff which had been increased in 1903, and which was held by the Interstate Commerce Commission to be unreasonable in 1905 and again in 1908. Cattle Raisers' Association v. Missouri, Kansas & Texas R. Co. et al., 11 I.C.C. 296; 13 I.C.C. 418. The action in which the judgment was recovered was begun in 1914, after the appointment of the receivers. The reparation order on which the action was based was entered also after their appointment, but the petition for reparation was filed prior thereto.
The validity of the judgment as against the old company is not challenged in this proceeding. The question here is whether Spiller is entitled to have it satisfied out of the property of the new company. The railroads contend that, in nature, the claim is one not entitled to preferential payment, and that, in any event, Spiller is barred by laches or otherwise from obtaining any relief in this suit. The circuit court of appeals held that the old company became liable as trustee ex maleficio for overcharges, and that this liability is enforceable, as upon a constructive trust, against the property acquired by the new company on foreclosure. It held further that Spiller was not barred by laches or otherwise because of the provision of the foreclosure decree by which the purchaser became bound to pay, as a part of the purchase price, any unpaid claims of creditors of the old company which should be adjudged superior in equity to its mortgages, the court reserving to itself jurisdiction to determine the amount and validity of any such claim.
as upon a constructive trust, rests upon the following argument: the freight rates, being unreasonable, were unlawful. The shipper was obliged to pay the charges exacted, although they were unlawful, because they were the published rates. As the shipper was obliged to pay the unlawful charges. the payment was made under duress. One may be held as trustee ex maleficio of funds obtained by duress as well as of those procured by fraud. The old company, by collecting the unlawful charges, became trustee ex maleficio of the funds collected. These can be traced and may be followed. They passed to the receivers, who took the funds with notice and without paying value. Upon the foreclosure, they passed to the new company. It also took them with notice, and is subject to the trust either because the shipper's equitable lien or interest was not cut off by the foreclosure sale, to one with notice, in a suit to which the shipper was not a party, or because the new company agreed to pay pursuant to the foreclosure decree claims prior in lien and superior in equity to the mortgages of the old company.
the old company in 1906, 1907, and 1908 can be traced into the hands of the receivers is unfounded. The money was not earmarked. It was mingled when collected with other money received from operation. And no special account was kept of it. The latest exaction occurred five years before the appointment of the receivers. The assertion that the money collected can be traced into the receiver's hands is confessedly without any support except the stipulated fact that, throughout the ten years which elapsed between the earliest exaction and the transfer of the properties to the new company, the old one and the receivers had at all times, in the several banks on which checks for current expenses were drawn, a working balance, in the aggregate, largely in excess of Spiller's claim. Such a showing fails to bring the present case within the rule by which, when trust funds are mingled with others, the cestui may assert an equitable lien upon the mingled mass to the extent of his contribution thereto. [Footnote 4] American Can Co. v. Williams, 178 F. 420, 423; In re A.D. Matthews' Sons, 238 F. 785, 787. An illegal exaction does not impress an indelible trust upon all funds which the wrongdoer and his successors may thereafter have on deposit in their banks. For aught that appears, all the money illegally exacted may have been spent for current operating expenses.
Second. Spiller contends that he was entitled to preferential payment of his judgment for the excess charges, out of operating income accruing during the receivership, on the doctrine of Fosdick v. Schall, 99 U. S. 235, 99 U. S. 251-255. See New York Dock Co. v. S.S. "Poznan,"
ante, p. 274 U. S. 117. It is argued that the test of this equity is the nature of the claim; that a liability for excess charges unlawfully exacted by the carrier before the receivership is an expense of operation like a debt incurred for labor, supplies, equipment or improvements, and that, as such, it is entitled to priority over bondholders. We need not determine whether the noncontractual claim here in suit is in its nature within the class of debts entitled to preferential payment under the doctrine of Fosdick v. Schall. For, by long established practice, the doctrine has been applied only to unpaid expenses incurred within six months prior to the appointment of the receivers. See Lackawanna Coal Co. v. Trust Co., 176 U. S. 298, 176 U. S. 316. Compare Gregg v. Metropolitan Trust Co., 197 U. S. 183. The cases in which this time limit was not observed are few in number and exceptional in character. See Burnham v. Bowen, 111 U. S. 776, 111 U. S. 780-783; Union Trust Co. v. Morrison, 125 U. S. 591. In no case which has come to our attention has the doctrine been applied to liabilities which, like those here in question, accrued many years before the receivership began.
years before the appointment of the receivers is conclusive against including it among those entitled to preferential payment.
Fourth. In order to establish as against the new company either the alleged equity or a right to preferential payment, it was moreover assumed to be necessary that the claim should be one of those which the purchaser, under the decree of foreclosure, agreed to pay as part of the purchase price. The decree provided that the purchaser would not be required to pay any "claim or demand which has not been presented in this cause in accordance with the orders, heretofore made, requiring presentation thereof" unless it be "a claim or demand which may arise after the entry of this decree." An interlocutory decree had ordered that all claims be presented before February 1, 1916, or be barred of enforcement against the property in the hands of the receivers or the proceeds thereof. Due notice of the order had been given by publication. Spiller did not file his claim within the time limited. He contends that the time limit has no application to his claim, because it arose after entry of the decree.
Spiller ultimately prevailed, his claim should be satisfied by the new company. Unless so construed, the provision for claims which may "arise" after the decree would be practically inoperative. The argument is not persuasive. We are of opinion that the term "arise" was used in the decree as the equivalent of "accrue;" that Spiller's claim arose at least as early as 1914, when the reparation order was entered, not when the judgment was recovered, and that the new company did not assume to pay it. See Phillips v. Grand Trunk Ry. Co., 236 U. S. 662, 236 U. S. 666. Moreover, while the barring clause of the final decree excepted claims arising after entry thereof, the clause stating the liability of the purchaser included only claims against the old company which should be adjudged prior in equity to the old company's mortgages. We have already decided that the claims in question are not of such a character.
filed it although he was litigation elsewhere. He cannot bring himself within the doctrine of the Boyd case by showing that no offer was made to him personally. For aught that appears, an offer would have been made, or his rights otherwise preserved, if he had filed his claim. There is no occasion to consider whether a petition for intervention filed in the receivership proceedings four years after confirmation of the foreclosure sale is an appropriate method of enforcing the claim on this theory.
Sixth. While the circuit court of appeals erred in granting the specific relief prayed in the petition for intervention, it does not follow that Spiller must be denied all remedy. He was guilty of a serious inadvertence in not filing his claim in the receivership suit within the time limited by the interlocutory order. But it is clear that he has not been guilty of laches. Southern Pacific Co. v. Bogert, 250 U. S. 483, 250 U. S. 488-490. And it does not appear that his inadvertence misled in any way the court, the receivers, the reorganization committee, or the new company. He had prosecuted his claim with vigor for years before the receivers were appointed. His diligence does not appear to have slackened either during the receivership or after the foreclosure sale. Throughout the whole period, the claim appears to have been resisted with equal vigor. After the old company ceased to function, counsel for the receivers conducted the defense. After the receivers ceased to function, counsel for the new company conducted the defense. It is clear that neither the receivers nor the new company considered the failure to file the claim in the receivership a bar to the relief.
to the new company, that he had recovered judgment 14 days before. He notified them that he claimed that the purchaser would take the property subject to all his rights, and that these included a charge upon the property in the hands of the purchaser for full payment of the judgment. With knowledge of Spiller's claims, the reorganization committee and the new company took over the property. Later, the new company assumed the further defense to the action in which the judgment had been recovered. The issue of the securities of the new company and the distribution of its stock among stockholders in the old occurred after these notices of Spiller's claim had been given. Under such circumstances, neither the long delay nor the failure to file claims as required by the interlocutory and final decrees should operate to prevent the appropriate relief, [Footnote 5] and the district court had jurisdiction to grant it. Compare Julian v. Central Trust Co., 193 U. S. 93; Wabash Railroad v. Adelbert College, 208 U. S. 38, 208 U. S. 54-57.
receivership proceedings in the proper time. It does not appear that it is not possible for the new company to give him the benefit now of the offer which was made by the reorganization committee to the other unsecured creditors of the old company, nor that such a course would be inequitable to others in interest. The ascertainment of the relevant facts and the precise form of the relief must be left to the district court. The decree of the circuit court of appeals is affirmed insofar as it reversed the decree of the district court dismissing the intervening petition, and is reversed insofar as it directed that the judgment is a prior lien enforceable for the full amount exclusive of counsel fees against the property of the new company.
Decree affirmed in part and reversed in part.
There were in fact four suits, two brought by unsecured creditors and two by the trustees of mortgages under which the foreclosure was had. All the suits were consolidated in May, 1914.
See §§ 8, 16(1), and 16(2), of the Interstate Commerce Act as it stood at the time of the overcharges in question, Act of Feb. 4, 1887, c. 104, 24 Stat. 379, 382, 384, as amended by the Act of June 29, 1906, c. 3591, 34 Stat. 584, 590. See also Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426.
Compare National Bank v. Insurance Co., 104 U. S. 54, 104 U. S. 63-68; Schuyler v. Littlefield, 232 U. S. 707, 232 U. S. 710; United States v. Leary, 245 U. S. 1, 245 U. S. 5; Cunningham v. Brown, 265 U. S. 1, 265 U. S. 11-13; Southern Cotton Oil Co. v. Elliote, 218 F. 567, 570-571; In re A. Bolognesi & Co., 254 F. 770; Knatchbull v. Hallett, 13 Ch.Div. 696.
See Williams v. Gibbs, 17 How. 239, 58 U. S. 254-257; Part v. New York, L. E. & W. R. Co., 140 F. 799; Employers' Assur. Corp. v. Mahogany Co., 6 F.2d 945. Compare Farmers' Trust Co. v. Chicago, etc., R. Co., 118 F. 204; Western N.Y. etc., Ry. Co. v. Penn Refining Co., 137 F. 343.
Compare Swift v. Black Panther Gas Co., 244 F. 20; Commercial Electrical Supply Co. v. Curtis, 288 F. 657.


text:
BY MITCHELL B. LADSON JR.
All practicing lawyers have cringed when a client, no matter how well prepared, states something during a deposition that is not true – for the plaintiff: a forgotten MRI 5 years ago, exaggerated pain (12 out of 10 on the pain scale a year later).
A fact of the plaintiff lawyer’s life is that plaintiffs often make mistakes at deposition, and the lawyer is faced with difficult decisions, ethically and tactically. First, the lawyer must attempt to discern if the client purposely lied, misunderstand the question, or just forget (e.g. its understandable to forget a PCP visit 10 years ago, but less understandable to forget that hydrocodone prescription you were on at the time of the wreck). Lawyers are not mind readers and are put in an uncomfortable position of attempting to discern truth and intent, while exercising their role as a zealous advocate (who am I to say what a person’s level of pain is). Of course, with signature reserved, a client is provided with an errata sheet. But how far can or should one go with an errata sheet? When zealous advocacy collides with issues, like attorney-client privilege and false statements to the court, one must pause. This paper explores some of the law that may be helpful in examining these issues when they arise.
(e) Review by witness; changes; signing. If requested by the deponent or a party before completion of the deposition, the deponent shall have 30 days after being notified by the officer that the transcript or recording is available in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and the reasons given by the deponent for making them. The officer shall indicate in the certificate prescribed by paragraph (1) of subsection (f) of this Code section whether any review was requested and, if so, shall append any changes made by the deponent during the period allowed. If the deposition is not reviewed and signed by the witness within 30 days of its submission to him or her, the officer shall sign it and state on the record that the deposition was not reviewed and signed by the deponent within 30 days. The deposition may then be used as fully as though signed unless, on a motion to suppress under paragraph (4) of subsection (d) of Code Section 9-11-32, the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.
Notably, the text of O.C.G.A. §9-11-30 contemplates “changes in form or substance.” This language goes beyond some lawyers’ conception of the purpose of an errata sheet, who consider it a tool to correct misnomers, spelling errors, dates, errors in transcription, or to state that an incorrect answer arose from a misunderstanding of the question. Turning to the case law, “[a]lthough our Georgia courts have not directly addressed the question of whether a witness may make substantive, material changes to his deposition, the statute expressly contemplates changes to form or substance.”1 This language contemplates a much broader use of the errata sheet than is commonly understood.
Other than waiting for an errata sheet to come in, is there something a Plaintiff’s lawyer can do at the time the evidence is given if he or she knows the testimony may be untrue or misleading?
Thus, a plain reading of the bar rules suggests that a lawyer’s ethical duty of candor toward the tribunal trumps even attorney-client confidentiality. Thus, when faced with a recalcitrant client, it appears that a lawyer must not present false information regardless of the wishes of the client. Yet, given the sanctity of the attorney-client privilege, this is a dangerous collision of directives. Comment 1 to Rule 3.3 appears to make the duty clear though: “[p](a)(4) requires a lawyer to take reasonable remedial measures if the lawyer comes to know that a client who is testifying in a deposition has offered evidence that is false.” It would seem then that a lawyer must submit an errata sheet if false testimony has been given. However, again, what is “false” and what is mere exaggeration or opinion must be examined. Even if a position is not credible, it may not be demonstrably “false,” e.g., my pain is a 10 out of 10 four years later after a twisted ankle. Is this a falsehood or must a zealous advocate advance the client’s position, however detrimental it may be at trial? The decision is considerably easier if there is objective evidence of falsehood – yes, the medical records show radiating low back pain a month before the wreck. In those cases, it is difficult to say that contrary testimony is anything but false, and those falsehoods must be addressed with the client and the Court.
In practice, perhaps the best way to deal with such a situation is to meet with the client, and then inform the client in writing of your ethical duties of candor toward the tribunal. If the client will not yield, perhaps withdrawal is the only appropriate step if you cannot continue the representation without violating your ethical obligations. This approach is confirmed in Comment 2 to Bar Rule 3.3: “A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client’s case with persuasive force. Performance of that duty while maintaining confidences of the client, however, is qualified by the advocate’s duty of candor to the tribunal. Consequently, although a lawyer in an adversary proceeding is not required to present an impartial exposition of the law or to vouch for the evidence submitted in a cause, the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false.” Of course, in federal court, there are severe limitations on your ability to withdraw. Can or should this conflict be shared with the Court if it means a breach of the attorney-client privilege? I believe this is a topic that warrants discussion beyond the scope of this article.
Thus, it would appear that the answer to this quandary is that, if you are aware a false statement is made during a deposition, you must inform your client of your duties, and you must not present false evidence or testimony to the court and withdraw any testimony or evidence that you become aware is false. Thus, even if you must change “yes” to “no” in an errata sheet, it appears you must do so despite the irate calls from opposing counsel that may likely emanate. Not only is this ethically required, but a change in the errata sheet may vitiate in part the looming attack at trial. By failing to change false testimony in an errata sheet, a client may well be attacked for not just misunderstanding or speaking untruthfully once, but also attacked for failing to remedy their mistakes despite opportunity to do so.
In my practice to date, when this has come up, I have certainly used the errata sheet liberally. For instance, if there is a prior medical care that comes up that a client genuinely forgot on deposition, I submit an errata sheet identifying the prior care. Also, during a deposition, a careful advocate may take a break if a client forgets or strays from the truth (unintentionally), and let the client correct what are true mistakes during the deposition. Opposing counsel may not like it, but is it better than allowing testimony (or omitted testimony) that can be construed as a lie under oath – and by not intervening, is the lawyer allowing false testimony to be given? Of course, if the client insists that the defendant really was going 120 mph while texting with a blindfold on, then a lawyer would probably be wise to evaluate their case before letting such testimony be offered under oath.
It is important to note that Prophecy applies “only in situations where the favorable portion of a party’s self-contradictory testimony is ‘the only evidence of his right to recover or of his defense’ that the opposing party is entitled to summary judgment.”14 “Stated differently, the Prophecy rule does not apply in summary judgment proceedings when, after the rule is applied to exclude certain testimony, there remains uncontradicted testimony to support a claim or defense.”15 Counsel thus must carefully examine and challenge an attempt to apply the Prophecy rule when other evidence exists to support a claim or defense.
Also, “where a reasonable explanation of the contradiction is offered, the inconsistency will not be construed against the party-witness.”16 “The burden rests upon the party giving the contradictory testimony to offer a reasonable explanation, and whether this has been done is an issue of law for the trial judge.”17 Thus, if an advocate can provide a reasonable application for any inconsistency, it must be done to avoid the consequences of Prophecy.
The Prophecy rule applies in summary judgment proceedings, and is “separate from those rules allocating burdens of proof” at trial.
a direct contradiction in order for Prophecy to apply.
“However, where a party’s explanation for a contradiction is determined to be unreasonable, the trial court must eliminate the favorable portions of the contradictory testimony and then take all testimony on motion for summary judgment as it then stands, and construe it in favor of the party opposing the motion in determining whether a summary judgment should be granted.” Id. So, the Prophecy rule can also assist plaintiffs when defendants offer contradictory testimony on summary judgment, particularly by supplying self-serving affidavits in support of summary judgment.
The Prophecy rule does not apply to the testimony of a non-party witness.23 “It does not apply to unsworn statements […] or contradictions between a party’s testimony and another person’s testimony.”24 However, if a witness under oath testifies that an unsworn statement is true and accurate, incorporating that unsworn statement into sworn testimony, Prophecy should be applied. Id.
In applying Prophecy’s self-contradictory testimony rule, our precedent has remained clear that the rule applies only to the testimony of parties to a case, and not to the testimony of witnesses who are not parties. Likewise, the Court of Appeals has declined to extend the Prophecy rule to anything other than the testimony of a party or a party witness.
The rule also does not apply to an unsworn, extrajudicial declaration even of a party-witness, which contradicts a subsequent sworn statement by that witness.27 Thus, one must not just examine who made the allegedly contradictory statement, but the context in which the statement was made.
The well-prepared lawyer may avoid these pitfalls by getting every old medical record (old primary care doctors records and pharmacy records can contain land mines), and addressing them with the client. Prepare the client at length and in detail and stress the maxim that a case cannot be won on deposition, but it can be lost. But even the most careful practitioner may miss something, and even the best-prepared client can get nervous and wander into dangerous territory. In conclusion, it appears that the first goal of the lawyer should be to obtain the truth as early as possible. The lawyer must prioritize his or her duty of candor to the tribunal, while also keeping the client informed at every step, and when privilege and the duty of candor collide, tell the client what your duties are. With regard to the errata sheet, I believe that getting the truth out first and promptly correcting the mistake, is going to help you not only stay within ethical boundaries, but also give you some cover at trial when the attacks come. A jury may understand anxiety under deposition and give credit for coming clean after the fact. Sitting on bad information for months does not make it any better, and a jury may be less forgiving of mistakes uncorrected until the time of trial.
Mitch Ladson is an attorney with Gary Bruce Law out of Columbus. A graduate of Emory University and Tulane University Law, his practice primarily focuses on cases involving car wrecks and commercial vehicles with significant injuries. Mitch can be reached at mitch@garybrucelaw.net.
1 J.H. Harvey Co. v. Reddick, 240 Ga. App. 466, 473–74, 522 S.E.2d 749, 755 (1999).
2 Id. citing Lugtig v. Thomas, 89 F.R.D. 639, 641 (N.D.Ill.1981); see also, e.g., Podell v. Citicorp Diners Club, 112 F.3d 98, 103 (2nd Cir.1997); Innovative Marketing &c. v. Norm Thompson Outfitters, 171 F.R.D. 203, 204-205 (W.D.Tex.1997); Allen & Co. v. Occidental Petroleum Corp., 49 F.R.D. 337, 340 (S.D.N.Y.1970); 474 Colin v. Thompson, 16 F.R.D. 194, 195 (W.D.Mo.1954).
3 Reddick, 240 Ga.App at 472.
5 Id; Scarbrough v. Dover Elevator Co., 232 Ga.App. 149, 153(a) n. 5, 500 S.E.2d 616 (1998); Lugtig, supra at 641.
6 Reddick, 240 Ga.App. at 472 (emphasis added), quoting Rios v. Welch, 856 F.Supp. 1499, 1502 (D.Kan.1994), aff’d, Rios v. Bigler, 67 F.3d 1543 (10th Cir.1995).
7 Reddick, 240 Ga.App. at 472 (emphasis added), quoting Allen & Co., supra at 341; see also Lugtig, supra at 642.
8 Reddick, 240 Ga.App. at 472 (emphasis added); see Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28-29(1), 343 S.E.2d 680 (1986).
9 Thompson v. Ezor, 272 Ga. 849, 851, 536 S.E.2d 749, 751 (2000).
11 Thompson v. Ezor, 272 Ga. 849, 851, 536 S.E.2d 749, 752 (2000).
13 Gentile v. Miller, Stevenson, & Steinichen, Inc., 257 Ga. 583, 583, 361 S.E.2d 383, 384 (1987).
14 Korey v. BellSouth Telecommunications, 269 Ga. 108, 109, 498 S.E.2d 519 (1998)(Emphasis added).
15 Thompson, 272 Ga. at 851.
16 Gentile v. Miller, Stevenson, & Steinichen, Inc., 257 Ga. 583, 583, 361 S.E.2d 383, 384 (1987).
18 Thompson v. Ezor, 272 Ga. 849, 852, 536 S.E.2d 749, 752 (2000).
19 See Bradley v. Winn–Dixie Stores, 314 Ga.App. 556, 557–558, 724 S.E.2d 855 (2012)(emphasis added); Gilstrap v. Head, 242 Ga. App. 495, 495–97, 529 S.E.2d 661, 662 (2000)(emphasis added); quoting Smith v. Vencare, Inc., 238 Ga.App. 621(1), 519 S.E.2d 735 (1999).
20 Gilstrap, 242, Ga. App. at 496.
21 Gentile v. Miller, Stevenson, & Steinichen, Inc., 257 Ga. 583, 583, 361 S.E.2d 383, 384 (1987):.
23 Atl. Geoscience, Inc. v. Phoenix Dev. & Land Inv., LLC, 341 Ga. App. 81, 82, 799 S.E.2d 242, 244 (2017), reconsideration denied (Mar. 29, 2017), cert. denied (Oct. 2, 2017)(court declining to apply Prophecy rule when testimony at issue was -non-party manager of defendant).
24 CSX Transp., Inc. v. Belcher, 276 Ga. 522, 523, 579 S.E.2d 737, 739 (2003).
25 Thompson v. Ezor, 272 Ga. 849, 852, 536 S.E.2d 749, 752 (2000).
26 Thompson,272 Ga. at 852 (Emphasis added).
27 Shiver v. Norfolk-S. Ry. Co., 269 Ga. 168, 169, 496 S.E.2d 903, 904 (1998)(pre-suit explanation of incident to claims agent that contradicted subsequent sworn interrogatories could not be used to apply Prophecy and cause sworn testimony to be construed against him).

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Crail, Ted. Apetalk & Whalespeak. The Quest for Interspecies Communication. Los Angeles. J.P. Tarcher. 1981. 298 pps. Octavo. Hardcover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Crail, Ted. Apetalk & Whalespeak. The Quest for Interspecies Communication. Chicago. Contemporary. 1983. Octavo. Soft cover. Illustrated. Near fine copy (very light shelf wear).
Crail, Ted. Apetalk & Whalespeak. The Quest for Interspecies Communication. Los Angeles. J.P. Tarcher. 1983. Octavo. Soft cover. Important reference work. Fine copy (small blemish on front cover).
Cramond, Mike. Killer Bears. What Causes these Fierce Attacks?... New York. Outdoor Life Books. 1981. 312 pps. Octavo. Hardcover. First edition. Near fine copy (light spotting along fore edge) in fine dust jacket (in mylar).
Crawford, John S. Wolves, Bears and Bighorns. Wilderness Observations and Experiences of a Professional Outdoorsman. Anchorage. Alaska Northwest Pub. 1982. 4to. Hard cover. Revised edition. Illustrated in black, white and color. Fine copy in very good (light shelf wear) dust jacket (in mylar).
Crawley, Jacqueline (ed). Neuropeptides. Basic and Clinical Advances. New York. New York Academy of Sciences. 1996. Octavo. Soft cover. First edition. Illustrated. Fine copy.
Critchley, Macdonald. The Dyslexic Child. London. Heinemann. 1973. 137 pps. Octavo. Hardcover. Reprint. Illustrated. Fine copy in near fine dust jacket (in mylar).
Crockett, Lawrence J. The Field Guide to Weeds. Photo available. New York. Sterling. 2003. Octavo. Spiral bound. First edition. Illustrated in black, white and color. Important reference work. Fine copy.
Cronin, Leonard. Key Guide to Australian Mammals. Photo available. Balgowlah. Reed Books. 1991. Octavo. Soft cover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Crowther, Riclard L. Sun Earth. How to Apply Free Energy Sources to Our Homes and Buildings. Photo available. Denver. Crowther/Solar. 1977. 4to. Soft cover. Second edition. Illustrated in black, white and color. Fine copy (light crease on front panel).
Csillag ,Andras Anatomy of the Living Human. Atlas of Medical Imaging. Photo available. Koln. Konemann. 1999. 416 pps. 4to. Hardcover. First edition. Full number line. Illustrated in black, white and color. Important reference work. Fine copy in fine dust jacket (in mylar).
Cudlipp, Edythe. Furs. Photo available. New York. Hawthorn Books. 1978. 221 pps Octavo. Hardcover. First edition. Full number line. Illustrated. Important reference work. Near fine copy (bumped rear corner) in lightly edge worn dust jacket (in mylar).
Culp, Gordon, et al. Handbook of Public Water Systems. Photo available. New York. Van Nostrand Reinhold. 1986. 1113 pps. 4to. Hardcover. First edition. Full number line. Illustrated in black, white and color. Important reference work. Fine (owner name on end paper) copy in fine dust jacket (in mylar).
Cunningham, Carol. Horn of Darkness. Rhinos on the Edge. Photo available. New York. Oxford University Press. 1997. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Cuozzo, Jack. Buried Alive. The Startling Truth About Neanderthal Man. Photo available. Green Forest. Master Books. 1998. Octavo. Soft cover. Illustrated in black, white and color. Fine copy.
Curran, C.H. Insects of the Pacific World. New York. Macmillan 1946. 317 pps. Octavo. Hardcover. Second edition. Illustrated. Fine copy in very good (light shelf wear) dust jacket (in mylar).
Curtin, Matt. Brute Force. Cracking the Data Encryption Standard. New York. Copernicus. 2005. 291 pps. Octavo. Hardcover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).

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text:
much pleased by it, Fs. 123; hafa í móti þökk ok ö., Band. 19 new Ed.
COMPDS: aufusu-gestr, m. a welcome guest, Valla L. 217, Sturl. i. 178.
sýna á sér au., Fs. 14.
eager, Orkn. 126: vide, however, Lex. Poët. s. v. ófur.
Sanskrit with the Slavonic, Greek, Roman, and Teutonic idioms: Goth.
augo; Germ, auge; A. S. eâge; Engl. eye; Scot. ee; Swed. öga; Dan.
öje, etc. Grimm s. v. suggests a relationship to Lat. acies, acutus, etc.
love, unir auga meðan á sér, the eye is pleased whilst it can behold (viz.
purse, i. e. shut one eye; depla augum, to blink; at drepa titlinga (Germ.
kenna augu Bjarnar konungs sonar, Fas. i. 51, vide Ísl. Þjóðs. II.
meton. and metaph. auga is used in a great many connections: α.
the Dioscuri, Castor and Pollux; the story is told in the Edda 47, cp.
Harbarðsljóð 19; (Snorri attributes it to Odin, the poem to Thor.) β.
Hkr. i. 121: the opening into which an axe handle is fastened, Sturl.
pan of the hip joint, v. augnakarl, Fms. iii. 392: gagnaugu, temples. ζ.
Edda (pref.) 146, Sks. 559, Rb. 568: a glance, look, snart a., Fms. ii.
at augabragði, metaph. to make sport of, to mock, deride, gaze at, Stj.
f. a warning glance, Pr. 452. augna-blik, n. mod. = augnabragð, s.
augna-bólga, u, f. ophthalmia. augna-brá, f. the eye-lid, D. N. i. 216.
augna-fagr and aug-fagr, adj. fair-eyed, Fas. ii. 365, Fms. v. 200.
augna-fró, f. a plant, eye-bright, euphrasia, also augna-gras, Hjalt. 231.
for the eyes to gaze at, Ld. 202, Bær. 17, Fsm. 5 (love, sweetheart).
speck, of whatever can easily be seen. augna-hár, n. an eye-lash.
augna-hvannr, m. the eye-lid. augna-hvita, u, f. albugo.
kláði, a, m. psorophthalmi. augna-krókr, n. the corner of the eye.
augna-lag, n. a look, Ld. 154. augna-lok, n. 'eye-covers,' eye-lids.
n. glaucoma. augna-staðr, m. the socket of the eye, Magn. 532.
before the face of God, Orkn. 170; í a. postulans, 623. 25, Ver. 7. Gen. vii.
I ('before me'); fyrir konungs a., Sks. 283. Now much used, esp. theol.
aug-ljós, n. 'eye light,' in the phrase, koma í a., to appear. Fas. i. 80.
aug-ljóss, adj. clear, manifest, Fms. i. 229, Hkr. ii. 225.
aug-lýsa, t, to make known, manifest: subst. auglýsing, f.
aug-sjándi, part. seeing ocularily, Mart. 117.
aug-súrr, adj. blear-eyed, Stj. 171 (of Leah): súreygr is more freq.
aug-sýn, f. sight; koma í a. e-m, to appear before him, Eg. 458, 623.
12; í a. e-m, in the face of, Blas. 46.
aug-sýna, d, to shew, Fms. v. 200.
aug-sýniligr, adj. and -liga, adv. evident, visible, Gþl. 42.
AUK, adv. [cp. Goth, auk, freq. used by Ulf. as translation of Gr.
GREEK; jah auk = GREEK; A. S. eâc; Engl. eke; Germ. auch] . I.
auk þess at, besides that; auk heldr, v. heldr. II. as a conj.
as spelt on some Runic stones, but seldom, if ever, in written documents.

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