Before MILLER, Chief Judge, and EDGERTON and FAHY, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT. 1960.CDC.160
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FAHY
FAHY, C. J.: The Consent Decree *fn1 provides the manner in which vacancies on the Board of Monitors shall be filled. It recites that one of the Monitors was nominated by the plaintiffs and one by the defendants, and that the chairman, Judge Nathan Cayton, was "nominated jointly by the plaintiffs and defendants." It provides:
In the event of the inability or unwillingness to serve, or other disability on the part of any Monitor, he shall be relieved of his duties and discharged of the obligations hereunder, and a successor Monitor shall be appointed in his place by the Court upon nomination by the party or parties, as the case may be, who nominated the Monitor to whose office the successor Monitor shall be appointed. *fn2
When Martin F. O'Donoghue, Esquire, succeeded Judge Cayton as chairman of the Board of Monitors he had not been jointly nominated, but the appointment when made by the court was not challenged by any of the parties. In argument of the present case, in this Court as in the District Court, counsel for plaintiffs and defendants stated in open court that in the cases of both Judge Cayton and Mr. O'Donoghue, because the parties had failed to agree upon a joint nominee they agreed that the District Court should make a selection from lists which they submitted. Counsel in the present case agree, also, that no such stipulation has been made regarding a successor to Mr. O'Donoghue. The Consent Decree must therefore govern.
By declaring that the original chairman was "nominated jointly by the plaintiffs and defendants," and providing that a successor Monitor shall be appointed on nomination by the parties who nominated his predecessor, the Consent Decree clearly provides that the chairman of the Board of Monitors be jointly nominated by the plaintiffs and defendants. Mr. Terence F. McShane has not been so nominated, and the parties have not agreed to waive the requirement that he be so nominated. On the contrary, the defendants have consistently and vigorously opposed his nomination. The provisions of the District Court's order of September 26, 1960, upon which the appointment of Mr. McShane rests, are therefore inconsistent with the Consent Decree.
We note the contention that because the parties had not agreed upon a joint nomination, the District Court was empowered to make an appointment in disregard of the provisions of the Consent Decree. But in our opinion the inherent power of a court of equity does not extend to the appointment, in disregard of the Consent Decree, of a chairman to whom some of the parties object on reasonable grounds. Arbitrary or unreasonable objections need not be recognized. But without in any way questioning the integrity or the ability of Mr. McShane, we think his prior activities in connection with this case and with the parties to it are a reasonable basis for defendants' objections to his appointment. It should be possible to obtain as chairman someone of the necessary caliber who is free of such objections.
Subsequent to the stay which we entered October 5, 1960, this Court through the office of its Clerk inquired of Mr. McShane as to whether he wished to file any papers or pleadings with respect to the subject matter of the cause and upon being advised that he did wish to do so the Court withheld its decision pending receipt of such papers or pleadings as Mr. McShane desired to file. He has now filed an affidavit respecting his qualifications and other matters he wished to have us consider, including the failure of appellants to include him as a necessary and indispensable party. Since the appeal is from the order of September 26, 1960, upon which the appointment itself rests, and is not in a removal proceeding, the procedure with respect to parties is like that applicable to the appointment of a special master, which would not require the appointee to be a party to a contest over the validity of the appointment.
The provisions of the order of the District Court of September 26, 1960, respecting the appointment of Terence F. McShane as chairman of the Board of Monitors must be set aside.
WILBUR K. MILLER, Ch. J., dissenting: The Consent Decree apparently contemplates that, in case the chairmanship of the Board of Monitors becomes vacant, a successor chairman shall be jointly nominated by the plaintiffs and the defendants. But it does not provide, nor in my opinion does it contemplate, that the parties shall select, elect or appoint a successor. The power actually to appoint is committed to the District Court. I think, therefore, that the power to nominate should not be equated with the power to appoint.
Perhaps the District Court should appoint a joint nominee if he is in all respects qualified to act as chairman. But the failure of the parties to agree upon a nominee, after a reasonable opportunity to do so, should not prevent the making of an appointment. If that were so, then either side could prevent the Board of Monitors from functioning, and so could frustrate one of the essential features of the Consent Decree, by the simple expedient of failing or refusing to agree upon a joint nominee. I think, therefore, that when, as here, the parties have failed, ...