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Panko v. Rodak

*fn*: August 1, 1979.

GREGORY PANKO, PLAINTIFF-APPELLANT,
v.
MICHAEL RODAK JR., INDIVIDUALLY AND AS CLERK OF THE SUPREME COURT OF THE UNITED STATES, AND EDWARD C. SCHADE, INDIVIDUALLY AND AS ASSISTANT CLERK OF THE SUPREME COURT OF THE UNITED STATES, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77-C-4228 -- George N. Leighton, Judge.

Before Swygert, Cummings and Wood, Circuit Judges.

Author: Cummings

Plaintiff Gregory Panko appeals from the judgment of the district court dismissing his Pro se action for mandamus and damages.*fn1 The defendants are the Clerk and an Assistant Clerk of the Supreme Court of the United States. We affirm the district court's judgment.

This case arises out of Panko's attempts to obtain Supreme Court review of the decisions in two other lawsuits he is prosecuting Pro se, one from this Court and one from the Illinois courts. The defendants returned Panko's petition for certiorari in the federal case and jurisdictional statement in the state case for failure to comply with Supreme Court Rule 39 regarding the printing of documents submitted to the Court. Apparently parts of the appendixes to each document had been reduced in size through photo-copying and failed to comply with the print-size requirements. S. Ct. Rule 39(1).

In each case Panko resubmitted the documents, without change, along with a motion to dispense with the printing requirements. In the motion to dispense with printing as to the petition for certiorari Panko relied on the fact that a similar motion was granted by the Court in Calley v. Callaway, 423 U.S. 888, 96 S. Ct. 182, 46 L. Ed. 2d 119 (1975), Cert. denied sub nom. Calley v. Hoffmann, 425 U.S. 911, 96 S. Ct. 1505, 47 L. Ed. 2d 760 (1976), and stated that he had a January 5, 1977 deadline to meet for filing a petition in the Illinois Supreme Court. This motion to dispense with printing in the United States Supreme Court was not received at the Clerk's office until February 18, 1977, however.*fn2

In the motion to dispense with printing as to the jurisdictional statement, Panko again relied on Calley, supra, and stated that his jurisdictional statement in an earlier appeal to the Court*fn3 had been accepted by the Clerk's office for filing despite the attachment of materials similar to those attached to the jurisdictional statement at issue here.

The defendants again returned the petition for certiorari and the jurisdictional statement as well as the motions to dispense with printing without filing any of them and without submitting the motions to the Court for decision.

1 Panko then filed suit in the district court seeking mandamus under 28 U.S.C. § 1361 directing the defendants to file his petition for certiorari and jurisdictional statement or to submit the motions to dispense with printing to the Court for decision.*fn4 The complaint also sought damages. The district court granted defendants' motion to dismiss. The court held that defendants were protected from damage liability by absolute judicial or quasi-judicial immunity. The court further held that Panko had failed to allege a clear right to the mandamus relief sought.

In order to obtain mandamus relief, Panko was required to establish three elements: a right to have his papers filed or submitted to the Court; a plainly defined and peremptory duty on the part of the defendants to file or submit them; and the absence of any other adequate remedy. Trinity Mem. Hosp. v. Associated Hosp. Serv., Inc., 570 F.2d 660, 666 n. 9 (7th Cir. 1977); Holmes v. United States Bd. of Parole, 541 F.2d 1243, 1247 n. 5 (7th Cir. 1976) (overruled in part not pertinent to this point in Solomon v. Benson, 563 F.2d 339 (7th Cir. 1977)). As the district court held, Panko's complaint failed to allege the first two elements.

Although the petition for certiorari and jurisdictional statement submitted for filing are not included in the record in this appeal, the allegations of the complaint show that parts of the appendixes to these documents had been reduced in print size and failed to comply with the Court's Rule 39. Thus Panko had no right to have these documents filed. In addition, the Supreme Court's order in Snider v. All State Administrators, Inc., 414 U.S. 685, 94 S. Ct. 771, 39 L. Ed. 2d 90 (1974), places a duty upon the defendants to reject any document subject to Rule 39 which fails to comply with the Rule. Therefore, the defendants had no plainly defined and peremptory duty to file Panko's petition for certiorari or jurisdictional statement. See Stern and Gressman, Supreme Court Practice § 6.23, pp. 448-453 (5th ed. 1978) (hereinafter Stern & Gressman).

Nor did Panko have a clear right to have his motions to dispense with printing submitted to the Court. In Snider v. All State Administrators, Inc., supra, the Court denied such a motion, noting that no motion and affidavit to proceed In forma pauperis had been filed. The Court said that "generalized allegations of inability to afford" printing costs were insufficient and that motions based on such allegations were disfavored. The Court did say that it has authority to waive its rules "in appropriate circumstances." But the Court went on to say that it is not disposed to waive the printing requirements.

1 The leading treatise on practice before the Court has interpreted Snider to mean that the printing requirements will not be waived without a motion sufficient to establish a "right to proceed In forma pauperis." Stern & Gressman at 451. Regardless of whether the Court might find other "appropriate circumstances" justifying waiver of the printing requirements, Panko's motion made no attempt to allege such circumstances and was insufficient on its face.

Panko's reliance in both motions on Calley v. Callaway, supra, 423 U.S. 888, 96 S. Ct. 182, was patently meritless. The order in Calley granting leave to dispense with printing portions of the appendix in that case was based on the circumstances presented in the motion in that case and applied to that case alone.*fn5 Panko's interpretation of Calley as a general rule permitting the filing of any "legible" appendix material is impermissible because it would nullify the requirements of Rule 39(1) for all cases. His attempt to rely on a state court deadline in the motion relating to the petition for certiorari had no merit because the deadline was passed before the defendants received the motion and thus could not excuse the failure to comply with Rule 39. And the statement in the motion relating to the jurisdictional statement that similar documents had been accepted in an earlier case was irrelevant since from the docket number assigned to the earlier case, those documents appear to have been accepted before the Court's warning in Snider was issued.

The Court's rules make it clear that motions which are insufficient on their face will not be filed by the Clerk's office. See E. g. S. Ct. Rule 53(5). Thus Panko had no clear right to have his motions submitted to the Court. These rules also establish that ...


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