Opinion
No. 30484.
June 1, 1956. Judgment Affirmed August 27, 1956. See 235 F.2d 787.
Gladstein, Andersen Leonard, San Francisco, Cal., for plaintiffs.
C. Elmer Collette, Asst. U.S. Atty., and Brobeck, Phleger Harrison, San Francisco, Cal., for defendants.
This case is now before the Court on plaintiffs' motion for the entry of a final order and decree upon the mandate of the Court of Appeals, 9 Cir., 227 F.2d 708. The Court of Appeals remanded the case "with directions to enter judgment enjoining and restraining the defendants from enforcing the regulations against the plaintiffs." 227 F.2d at page 724. The regulations referred to by the Court of Appeals, 33 C.F.R. Ch. 1, Subchapters A and K, were amended by the Coast Guard on April 25, 1956, effective May 1, 1956. 33 C.F.R. Ch. 1, Subch. K, Part 121. They were published for the first time on May 1, 1956, one day before the hearing on plaintiffs' motion for entry of final order and decree. D.C., 112 F. Supp. 433. 21 Fed.Reg. 2815 (May 1, 1956), amending 33 C.F.R. Ch. 1, Subchs. A and K.
On argument, plaintiffs' counsel and counsel for the respondents treated the new amendments as being before the Court for adjudication. Although they are judicially noticeable, the new regulations are not otherwise a part of this record, and it is obvious that plaintiffs have not had an opportunity to discuss the effect of the new regulations upon their rights. A proper enforcement of the mandate of the Court of Appeals may require a construction of these new regulations and a determination of their effect upon the rights of plaintiffs. Respondents have filed a memorandum based upon the effect of the new regulations. Justice and the interests of orderly procedure suggest that plaintiffs should have a similar opportunity. Plaintiffs should amend their petition so as to bring the amended regulations within their prayer for relief and submit them to adjudication in this Court pursuant to the mandate of the Court of Appeals.
It is so ordered.