Full opinion text
HALL, District Judge. Without attempting to narrate the whole, or even a small portion, of the history of this proliferating litigation, it is necessary, none-the-less, to state some of it for a better understanding of the problems involved in the multitude of motions (29) which were argued for eight days in consolidated actions 5421 and 5678 and related action 13979 of this court. On May 20, 1946 the Federal Home Loan Bank Administration, by an order No. 5254, designated A. V. Ammann as Conservator of the Long Beach Federal Savings and Loan Association, who, on the same date summarily took possession thereof and of all its assets and properties, for text of Order 5254 see 14 F.R.D. 273, footnote 6. On May 27, 1946 action No. 5421 was commenced by the filing of a complaint by Mallonee and others as a shareholders committee (California State Corporation Commissioner license No. 80282-La) of the Long Beach Federal Savings & Loan Association, against various defendant officials and others alleging the invalidity of order No. 5254 appointing the conservator and seeking his ouster and the return of the Association to its shareholders. The complaint, among other things, attacked the constitutionality of those provisions of the Federal Home Owners’ Loan Act, mainly section 5(d) thereof, 12 U.S.C.A. § 1464(d), relating to the appointment of conservators. A temporary restraining order was issued; a three-judge court was convened under then 28 U.S.C. § 380a (now 28 U.S.C. § 2282 et seq.); a hearing was had before the three-judge court on July 15 and 16, 1946 and on September 5, 1946 the three-judge court made its decision, D.C., 68 F.Supp. 418, holding the above mentioned section of the Act unconstitutional and ousting the conservator, requiring accounting, enjoining proposed administrative hearing, and signed a judgment to that effect on September 30, 1946. The next day, October 1, 1946, Justice Rutledge of the Supreme Court stayed the enforcement of the three-judge court order. Appeal was taken to the Supreme Court on October 3, 1946 from the judgment of the three-judge court; on April 7, 1947 on application, and after hearing, the District Court made an order allowing $50,-000 on account of attorneys’ fees and approximately $17,000 on account of costs, to the shareholders’ committee upon which a petition for writ of prohibition, etc. was promptly taken to the Supreme Court for hearing at the same time as the main appeal from the decision of the three-judge court. The matters were argued April 30, 1947 (the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., was signed June 11, 1946), and on June 23, 1947 the Supreme Court made its decision, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030, reversing the judgment of the three-judge court but did not direct the dismissal of action No. 5421, and on the same day denied a motion for a writ of prohibition and likewise did not direct the dismissal of the action, 332 U.S. 258, 67 S.Ct. 1552; the mandate from the Supreme Court was received and spread in the District Court on August 19, 1947. In the meanwhile, on August 22, 1946, action No. 5678 was commenced by the filing of a complaint by the Federal Home Loan Bank, of Los Angeles and six of its stockholders Associations as a class for all members, seeking restoration of said Los Angeles Bank to its status, location and officials prior to March 29, 1946, and recovery of its assets and attacking the validity of various orders of the Federal Home Loan Bank Administration, all of which were made on March 29, 1946, which summarily provided for the dissolution of the Los Angeles Bank, discharge of its officers and directors, and the transfer of its assets and properties to the Portland Bank, the name of which was changed to the Federal Home Loan Bank of San Francisco, and headquarters therefor removed both from Portland and Los Angeles to San Francisco (for text of orders see 14 F.R.D. 273-283, footnote 5). Under the “low-number rule” of this court, case No. 5678 was transferred to me and thereafter, in due course, on November 7, 1947, an order of consolidation of the two cases for all purposes was made. In the meanwhile (August 26, 1946), the Los Angeles Bank, not joining with any of its members, had filed a cross-claim in action 5421 seeking substantially the same relief it sought in action 5678. Thereafter, numerous orders were made by the District Court, particularly in connection with interpleaders, by persons owing notes to the Long Beach Association secured by trust deeds, which interpleaders brought approximately a million and a half dollars into Court. Numerous orders were made thereon as well as numerous other orders, among them certain orders allowing attorneys’ fees and costs. From several of such orders appeals were taken by the official defendants attacking the jurisdiction of the District Court but all of said appeals were dismissed. Appeals were taken from subsequent orders allowing attorneys' fees, Master's fees, and the like, some of which are still pending. On December 1, 1949, an order (14 F.R.D. 273) was made after hearing in the Consolidated case enjoining and restraining an administrative hearing before the Home Loan Bank Board on its order No. 2015 dated September 9, 1949, (for text of order see 14 F.R.D. 273-289, footnote 11), which hearing was set for Washington, D. C. and concerned the administration of the affairs of the Long Beach Federal Building and Loan Association. Neither the order of the Home Loan Bank Board No. 2015, nor the injunction of December 1, 1949, were concerned directly with the subject matter of the Los Angeles Bank action No. 5678. On December 29, 1949 the Home Loan Bank Board, Federal Savings and Loan Insurance Corporation and the defendants who were officials of the United States, gave notice of appeal from said order for injunction, and on January 5, 1950 the Federal Home Loan Bank of San Francisco gave similar notice. Thereafter, on April 2, 1952, the United States Court of Appeals handed down its opinion in the injunction appeal Home Loan Bank Board v. Mallonee, 9 Cir., 196 F.2d 336, at page 391 the concluding paragraph of which reads as follows: “Upon consideration of the whole record we conclude that the order of the lower court dated December 1, 1949, which restrains and enjoins the holding of an administrative hearing called pursuant to the provisions of Order No. 2015 of the Home Loan Bank Board, dated September 9, 1949, was erroneously issued. It is therefore ordered that the said order for Preliminary Irv junction be, and the same is, hereby reversed, and the court below is directed to vacate and set aside the said injunction.” (Italics supplied.) Subsequently petitions for certiorari were filed and ultimately denied. On June 19, 1950, after due notice and hearing, this court made its order for allowance of attorneys’ fees limited to counsel for plaintiffs in the Los Angeles Bank action No. 5678. On June 20, 1950, the Home Loan Bank Board, Federal Savings & Loan Insurance Corporation, and the various individual defendants who were officials of the United States, filed notice of appeal from that order as did the Federal Home Loan Bank of San Francisco. On November 6, 1952 the United States Court of Appeals for the Ninth Circuit filed its opinion in the attorneys’ fee appeal, Fahey v. O’Melveny & Myers, 200 F.2d 420, at page 481, in the Los Angeles Bank case, No. 5678, the concluding paragraph of which reads as follows: “For reasons set forth in this opinion the order of the lower court here on appeal which awards attorneys’ fees to appellees is reversed. The validity of the claim for such fees is sustainable only on the theory that the lower court had jurisdiction in personam over indispensable parties to the Los Angeles Action and jurisdiction of the subject matter of that action. We have previously held that the court did not have such jurisdiction and we therefore remand the case before us with directions to the lower court to dismiss the Los Angeles Action.” (Italics supplied.) Applications for certiorari were likewise made and ultimately denied in that matter. The appeal from the order of injunction, of December 1,1949, in action 5421, carried No. 12511 in the appellate court, and the appeal from the order for allowance . of attorneys’ fees carried No. 12591 in the appellate court. No order of consolidation was made of the appeals in the appellate court. On May 25, 1953 a Special Assistant to the Attorney General, traveling from Washington, D. C. for that purpose, and without the customary notice to all counsel, presented to the court for spreading, the mandate of the Court of Appeals which appears to be a consolidated mandate, although no order was ever made on appeal consolidating the two appeals. The mandate reads as follows: “United States of America, SS: The President of the United States of America to the Honorable, the Judges of the United States District Court for the Southern District of California, Central Division, Greeting: “Whereas, lately in the United States District Court for the Southern District of California, Central Division, before you or some of you, in consolidated causes between Mallonee, Bucklin and Fergus, et al, plaintiffs, third party plaintiffs and cross-claimants, and John H. Fahey, et al, defendants, Civil No. 5421-P. H.; and between Federal Home Loan Bank of Los Angeles, et al, plaintiffs, and Federal Home Loan Bank of San Francisco, et al, defendants, Civil. No. 5678-P.H.; wherein an Order of Preliminary Injunction was duly filed, and entered on the 2nd day of December, 1949, and wherein an Order re allowance of attorneys’ fees on account was duly filed and entered on the 19th day of June, 1950; which said orders are of record and fully set out in said causes in the office of the Clerk of the said District Court, to which record reference is hereby made and the same is hereby expressly made a part hereof. “And Whereas, the said John H. Fahey, et al, and said Federal Home Loan. Bank of San Francisco have appealed to this Court as by the inspection of the transcript of the record of the said District Court, which was brought into the United States Court of Appeals for the Ninth Circuit by virtue of an appeal agreeable to the Act of Congress, in such cases made and provided, fully and at large appears. “And Whereas, on the 1st day of May, in the year of our Lord, one thousand nine hundred and fifty one, the said consolidated causes came on to be heard before the said United States Court of Appeals for the Ninth Circuit, on the said transcript of record, and was duly submitted. “And Whereas, on the 6th day of May, in the year of our Lord, one thousand nine hundred and fifty-two, the said consolidated causes came on to be heard before the said United States Court of Appeals for the Ninth Circuit, on the said transcript of record, and was duly submitted. “And Whereas, said actions were consolidated in the District Court for all purposes, and a review of decisions in both said appeals was sought by appellees upon consolidated petitions for writs of certiorari to the United States Supreme Court, which said petitions were denied on the 4th day of May, 1953: “On Consideration Whereof, It is now here ordered and adjudged by this Court that the said orders of the said District Court in these consolidated causes be and hereby are reversed and that said consolidated causes be and hereby are remanded to the said District Court with directions to: “1. Dismiss Civil Action No. 5678-P.H. at the cost of plaintiffs. “2. Dismiss the following pleadings in Civil Action 5421-P.H.: “(a) The complaint of Mallonee, Bucklin and Fergus, and all amendments and supplements thereto, at the cost of said complainants; “(b) The cross-claim and third party complaint of Long Beach Federal Savings and Loan Association, and all amendments and supplements thereto, at the cost of third party complainant and cross-claimant; “(c) The cross-claim of Federal Home Loan Bank of Los Angeles; and all amendments and supplements thereto at the cost of said cross-claimant; “(d) The cross-claim in inter-pleader of Title Service Company, and all amendments and supplements thereto, at the cost of said cross-claimant; “(e) The cross-claim in inter-pleader, and all amendments and supplements thereto, of Robert H. Wallis, at the cost of said cross-claimant; “3. Dissolve, set aside and vacate the order of said District Court entered the. 13th day of March, 1948, insofar as the same requires Federal Home Loan Bank of San Francisco to deposit in the Registry of said District Court promissory notes in the aggregate principal amount of $6,300,000.00, collateral securing the same and any other documents, or property deposited by San Francisco Bank pursuant to said order; and return to Federal Home Loan Bank of San Francisco without charge or impairment said promissory notes, together with Government bonds in the face amount of $5,300,000.00 with all interest coupons attached thereto at the time of deposit and together with cash from the sum in the Registry of said Court sufficient to make the combined total sum of $6,324,098.35, with interest on $6,300,000.00 at 2% per annum from the 10th day of March, 1948 until the date of such release. “4. Set aside and vacate said order of preliminary injunction entered the 2nd day of December, 1949. “You, Therefore, are Hereby Commanded that such proceedings be had in said consolidated causes, in conformity with the opinions and judgments of this Court, as according to right and justice, and the laws of the United States, ought to be had, the said appeals notwithstanding. “Witness, the Honorable Fred H. Vinson, Chief Justice of the United States, the 21st day of May in the year of our Lord one thousand nine hundred and fifty three. Paul P. O’Brien Clerk, United States Court of Appeals for the Ninth Circuit.” At the time the mandate was offered for spreading there was still pending undecided a petition for rehearing before the Supreme Court. While the Appeals were taken from only the order of injunction of December 1, 1949, in 5421, and only from the order for allowance of attorneys’ fees in the Los Angeles Bank case, 5678, the mandate, as appears on its face, is unusual in that it goes a great deal further than a mere disposition or reversal of the two orders from which appeals were taken. The opinion of the Court of Appeals in the injunction case, No. 12511, occupies 56 printed pages in the report and in 12591 the attorneys’ fee matter, 62 pages. The record on appeal in 12511 consumed approximately 12,000 printed pages and the files and records in the case in this court, to date, in 5421 and 5678 are colossal, occupying several filing cabinets of 4 drawers each. Innumerable hearings had been held in the consolidated cases and hundreds of orders made affecting numerous parties and things besides the main litigants so that it became apparent, before complying with the insistent demands of appellants’ counsel, and in order to properly carry out the terms of the mandate that considerable care and study were required of all the matters involved, as the mandate, in addition to requiring specific things, commands such further proceedings, “in conformity with the opinions and judgments of”, the Appellate Court, “as according to right and justice, and the laws of the United States, ought to be had, the said appeals notwithstanding,”. Counsel for the San Francisco Bank and counsel for the United States Attorney’s Office and the office of the Attorney General indicated considerable provocation and impatience because this court would not forthwith either spread the mandate and enter the judgments which they submitted for entry without an opportunity for this Court to again read and study the opinions of the Appellate Court and in light of them endeavor to make such orders as in conformity with them and according to right and justice and the laws of the United States ought to be had, the said appeals notwithstanding. There was then (May 25, 1953) a stay in force, ordered by the appellate court, pending the final disposition of cases 12511 and 12591, which stay would have prevented action by this court until disposition of the petitions for rehearing before the Supreme Court, above mentioned. The petitions for rehearing were not denied by the Supreme Court until June 9, 1953, 345 U.S. 978, 73 S.Ct. 1120 and not brought to the attention of this court until sometime later. The matter again came on for hearing on June 22, and 24, 1953, at which times I was (and advised all counsel that I was), then engaged in the trial of a water rights case at Fresno which had been continuing for some 18 months and which required my presence in Fresno every day of each week except Monday, and beginning in the first part of July it was the duty of this Judge to take the criminal calendar of this court which requires the hearing of all arraignments and pleas and the trial of all criminal cases consuming less than three days for a period of three months’ time, and consumes all of a judge’s time. At the various hearings, the Court suggested that, in view of the fact that the mandate covered many things other than the two orders from which appeals were taken, counsel for the prevailing parties on appeal should prepare and submit whatever judgments and orders in their opinion were required to be made and signed by this court. On July 16, 1953 counsel for the prevailing parties on appeal accordingly filed 14 different judgments and orders; as follows: Proposed Judgment No. 1 Judgment on Mandate. Proposed Order No. 1 Order Dismissing Complaint, Amended and Supplemental Pleadings Pursuant to Mandate. Proposed Order No. 2 Order Dismissing Cross-Claim and Third Party Complaint of Long Beach Federal Savings and Loan Association, and All Amendments and Supplements Thereto, Pursuant to Mandate. Proposed Order No. 3 Order Dismissing Cross-Claim of Federal Home Loan Bank of Los Angeles Pursuant to Mandate. Proposed Order No. 4 Order Dismissing Cross-Claim in Interpleader of Title Service Company, and All Amendments and Supplements Thereto, Pursuant to Mandate. Proposed Order No. 5 Order Dismissing Cross-Claim in Interpleader of Robert H. Wallis, and All Amendments and Supplements Thereto Pursuant to Mandate. Proposed Order No. 6 Order Directing Delivery of Documents and Collateral to Federal Home Loan Bank of San Francisco Pursuant to Mandate. Proposed Order No. 7 Order Vacating Order of Preliminary Injunction Pursuant to Mandate. Proposed Order No. 8 Order Dismissing Cross-Claim in Interpleader of George Turner Pursuant to Mandate. Proposed Order No. 9 Order Dismissing Cross-Claim of Roy E. Hegg Pursuant to Mandate. Proposed Order No. 10 Order Dismissing Complaint in Intervention of John D. Willhoit Pursuant to Mandate. Proposed Order No. 11 Order Vacating Orders Re Accounting by A. V. Ammann Pursuant to Mandate. Proposed Order No. 12 Order Vacating Orders Re Discovery and Inspection Proceedings, Pursuant to Mandate. Proposed Order No. 13 Order Denying Petition and Supplement to Petition to Interplead or Deposit in Court Disputed Stock Subscription Demands of First Federal Savings and Loan Association of Bell-flower, California, Pursuant to Mandate. iu-All-matters again came on for hear-ting'on August 3, 1953, at which time I ■-indicated to counsel that I would be unable to hear the arguments on the various. motions and opposition thereto un,til after the completion of the criminal calendar at the end of September, and set' the matter down for hearing with the consent of all counsel, to begin on October 12th, at which time I would not only hear counsel in connection with the proposed, judgments and orders, but also hear all motions which had been set in the related, case, No. 13979 — Federal Home Loan Bank of San Francisco v. Long Beach Federal Savings and Loan Association, which had been filed in the Superior Court of California'on March 27, 1952, and removed to this court, and a motion to remand denied. Action 13979 was a suit by the San Francisco Bank. to collect on notes of the face amount of $6,300,000 signed by the conservator, and to foreclose on claimed security therefor. Inasmuch as many of the matters involved. in the consolidated cases 5421 and 5678 are.also involved in 13979, it,was felt necessary that they should be heard together, and accordingly, on October 12th hearing was commenced on the motions for and against the above mentioned judgments and orders in 5421 and 5678, and the following motions in 13979:. 1. Hearing on Report of Receiver and Petition for Instructions 2. Hearing on Motion of Federal Home Loan Bank Board to quash service of summons made pursuant to, court order filed 3-3-53 3. Hearing on motion of Home Investment Co. et al. for summary judgment quieting title to homes of 8000 borrowers against foreclosure of loans paid in full, and motions for summary judgment .quieting title of trustee, Title Service Co. and beneficiary Long Beach Federal Savings & Loan Assn. pur. not. filed 5-21-53 4. Hearing on motion of Plaintiff to (a) Dismiss Homeowners cross-claim for quiet title, and (b) Strike and drop Home Investment Co. as a party pur. not. filed 5-29-53 5. Hearing on motion of Plaintiff (a) To drop parties (b) or for severance and early trial fid 6-5-53 6. Hearing on Motion of Plaintiff (a) to dismiss cross-claim of defendant Long Beach Fed. Sav. & Loan Assn., ■ (b) To strike said cross-claim, fid 6-5-53 7. Hearing on Motion of Plaintiff (a) To vacate order granting leave to Title Service. Co. to intervene and to file its complaint in Intervention and Inter-pleader, and to strike said pleading, (b) To dismiss said complaint in Intervention, fid 6-5-53 8. Hearing on Motion of Plaintiff to .dismiss." 3rd party complaint of Long Beach Fed. Sav. & Loan Assn. (Fid 10-10-52) fid 6-5-53 9. Hearing on Motion of Plaintiff (a) To vacate order granting leave to Robert H. Wallis to intervene and to file its complaint in intervention and inter-pleader, and to strike said pleading, (b) To dismiss said complaint in intervention fid 6-5-53 10. Hearing on Motion of Plaintiff to strike from Answer of deft. Long Beach Fed. Sav. & Loan Assn, fid 6-5-53 Audit of funds in Court As noted, sub-paragraph No. 3 of the Mandate directs the return of certain bonds and cash in the registry of the court in the within actions, to the Federal Home Loan Bank of San Francisco. The money on deposit in court was derived not from a single source but from many and as the result of many interpleaders and interventions. And before making any order concerning a definite amount of money it appeared only reasonable and proper that an audit should be made of the funds on deposit in court with a statement as to their source so that in making any order in compliance with the mandate, compliance also might be had with the rules concerning disposition of money deposited in court, laid down by the Ninth Circuit in Berdie v. Kurtz, 88 F.2d 158. I suggested to the parties that each side might select an auditor and two of them go over the records jointly so that there would be agreement among the parties and not leave such a simple matter to the querulous contentions which have marked this case already overloaded with a multitude of various contentions and innumberable angry and distracting clashes between the many counsel. The Long Beach Association did make such an audit which was filed on July 16, 1953, and a summary and recapitulation thereof filed on July 23, 1953. Neither the San Francisco Bank nor the parties represented by the United States Attorney saw fit to make such an audit, or if so they did not see fit to aid the court by filing a copy of it. In connection therewith the court has received only a letter from Mr. Hoffman, one of the counsel for the San Francisco Bank dated September 25, 1953 which, on its face, is not complete. The Court will, therefore, accept as true and accurate the audit and summary and recapitulation thereof as to source of funds, and amounts, made and filed by the Long Beach Federal Savings & Loan Association. The Appellate Court stay and other pending appeals It should be mentioned also that during the pendency of the appeal, while no stay was in effect, this court appointed a Receiver for the purpose of bringing suit both in the federal court and the state court to preserve the running of the statute of limitations against certain asserted causes of action or liability in connection with the administration of the affairs of the Long Beach Association by the conservator and his relationship with the San Francisco Bank. An appeal was taken from the order appointing the Receiver and is currently pending undecided along with appeals taken by the San Francisco Bank from various, but not all, of the orders allowing fees to the Special Master. Pursuant to the order appointing the Receiver he filed two actions, one In the state court which was removed to this court, and one in this court. Thereafter, a stay of all proceedings in the within consolidated cases, 5421 and 5678, and the Receiver’s actions, was made by the appellate court on November 13, 1952 “Until the final disposition of cases No. 12511 and 12591; except that said District Court is hereby permitted to entertain and determine the cause designated as 13979-PH filed in said (this) District Court.” The petitions for rehearing were denied by the Supreme Court on June 9, 1953. On June 24, 1953 the above mentioned mandate of the U. S. Court of Appeals was ordered spread in this court. I therefore regard the disposition of appeals No. 12511 and No. 12591 as final, and the stay as terminated. As above stated, appeals are pending undecided in 5421 and 5678 from the order appointing the Receiver and from certain allowance of fees to the Special Master but no stay has been issued in connection therewith and I shall proceed accordingly. The Preliminary Injunction of December 2, 1949 (Proposed Order No. 7). Paragraph numbered “4” of the mandate directs this court to “set aside and vacate said order of preliminary injunction entered the 2nd day of December, 1949.” I indicated to all counsel from time to time from the outset of the various hearings since the mandate came down that, whatever else may be said concerning the opinions on appeal and the mandate, there could be no doubt that both the opinion in 12511 and the mandate intended and required that said order of injunction be reversed. It was the only order on which the appeal was taken. I also indicated to counsel that it seemed to me that an order should be made as promptly as possible to vacate the order of preliminary injunction of December 1, 1949, in order that such administrative hearings might be as promptly proceeded with as were deemed advisable. I also indicated that if counsel would request it I would as promptly as time and the press of other duties would permit, make such an order. Accordingly, without adopting the forms of order proposed by either the prevailing parties on appeal, or the one proposed by those opposing them, I dictated an order dissolving the injunction of December 1, 1949 and filed it September 21, 1953. Paragraph “4” of the mandate is thus complied with. The Dismissal of Action No. 5678 at the cost of Plaintiffs The mandate, in paragraph “1”, directed that this court “dismiss Civil Action No. 5678-PH at the cost of plaintiffs”. No costs were set forth in the mandate. During the course of the litigation, among the many hundreds of other orders made, an order was made with the consent of, among others, the Long Beach Association and the defendant officials speaking through the U. S. Attorney and the Attorney for the Home Loan Bank Board, appointing Ronald Walker, (then Assistant United States Attorney who had been handling the within litigation for the defendant officials), as Special Master, for the purpose of supervising and directing the carrying out of Order No. 388 of the Home Loan Bank Board and the order of this court of January 23, 1948, directing the return of the Long Beach Association and its assets and properties to the regularly elected officials of said Association and for an accounting by Ammann to the shareholders, and supervising the election of a Board of Directors of said Association, no meeting of shareholders having been had, or election of such officers, since prior to the conservatorship. Thereafter, on motion for discovery, the court appointed said Ronald Walker as Special Master to supervise the discovery proceedings. The motion for discovery was made by Long Beach Association and its affiliated defendants and was joined in by the plaintiffs in 5678. The purpose of appointing the Special Master was principally to protect the San Francisco Bank in connection with the conduct of its affairs and to protect the public interests against any disclosure of confidential matters which might concern the San Francisco Bank and the affairs of other building and loan associations, or might otherwise affect the public interest. The Special Master performed rather prodigious duties in connection with the turn-back of the Association, the election of directors and the meeting of shareholders, and in connection with the discovery proceedings. No final report has yet been made by the Special Master. Interim reports have been filed and interim allowances on his fees, but no final order fixing his fees either on the turn-back and accounting or on the discovery have been made, and, as above stated, appeals are now pending on some, but not all, of the orders allowing fees to the Master. There can be no doubt concerning the duty of this court in connection with the mandate. It was ordered spread and under the decisions it is my duty to carry it out without attempting to question the correctness of either the appellate court’s opinion or decision or the correctness of the mandate. As stated in Thornton v. Carter, 8 Cir., 109 F.2d 316, at page 320, “A mandate is completely controlling as to all matters within its compass, but on remand the trial court is free to pass upon any issue which was not expressly or impliedly disposed of on appeal.” Many other authorities are to the same effect but it would be a matter of supererogation to cite them. It does not appear to me at this time that the plaintiffs, in action No. 5678, should be burdened with any of the costs resulting from allowance of fees and costs to the Special Master in connection with carrying out order No. 388 and the order of this court of January 23, 1948 directing the turn-back and accounting. But, the plaintiffs in action No. 5678 joined in the motion for discovery and inspection of documents, (at last report approximately 44,000 were marked by the Special Master on the inspection hearings), and it seems to me that the plaintiffs in action No. 5678 should be made to bear a portion of such fees as part of the costs in compliance with the mandate. The mandate clearly requires a judgment of dismissal of Civil Action No. 5678 but there are two steps in the judgment, one is the making of the judgment to be settled and approved as provided in Rule 58, Fed.Rules Civ.Proc. 28 U.S.C., and the other is the entry thereof. Rule 58 provides that the entry of judgment shall not be delayed for the taxing of costs. Whether or not a portion of the fees of the Special Master in connection with the discovery proceedings can be assessed as costs against the plaintiff in Civil Action No. 5678 is a question which none of the parties has seen fit to touch upon or to brief. Also, whether or not, if they are assessable as costs, it should be done before the making and the entry of the judgment of dismissal, they have likewise not seen fit to discuss or to brief or inform the court of their position whatever. There has been paid out of funds on deposit in court a sum in the neighborhood of $10,000 as costs incurred by the Special Master on the two references to him for clerical help, court reporters, photostating, microfilming and the like. In addition to that the sum of $61,000 has been allowed and paid to the Special Master out of funds on deposit in court as fees on interim or partial allowances only. No final report of the Special Master on either the turn-back proceedings and accounting, or the discovery and inspection proceedings has been made or approved and in none of the orders for allowance of fees to the Special Master was there any determination or indication of a determination of the total amount of fees to be allowed or the total value of his services. There has likewise been no order of court allocating the fees and costs as charges against the various parties or any party to the action under Rule 53(a), F.R.C.P. which provides that “The compensation to be allowed to a master shall be fixed by the court, and shall be charged upon such of the parties or paid out of any fund or subject matter of the action, which is in the custody and control of the court as the court may direct.” The rule also permits execution to be issued for such fees. While the fees and costs were paid out of funds on deposit in court the matter of who they would or should ultimately be charged against was not at any time settled. None of the funds on deposit in court were received from any of the plaintiffs in action No. 5678. Regardless of what disposition is made with relation to the reference to the Special Master on the turn-back proceedings and the accounting thereon under the previous order of this court of January 23, 1948 and Order No. 388 of the Home Loan Bank Board, it seems clear to me that the reference to the Special Master for discovery and inspection should be wound up under the mandate and the decision in 12591, as promptly as possible by a final report of the Special Master and a hearing thereon and a final order fixing additional fees and costs, if any, and making an allocation of the charges under Rule 53 (a) therefor upon such of the parties to this action as may be liable therefor. This is particularly so in view of the holding of the appellate court as to the lack of jurisdiction of this court in action 5678 and the clear terms of the mandate to dismiss 5678 at the costs of the plaintiffs. This has been partially done by requiring counsel for plaintiffs in action 5678 to redeposit the $75,000 allowed them as fees. The principal reason for the appointment of the Master was for the protection of the San Francisco Bank and its member Associations and its, and their, records. It is conceivable that a portion of the Master’s fees and costs could or should be assessed against the San Francisco Bank. See Associated Almond Growers v. Wymond, 9 Cir., 69 F.2d 912. However, it is neither necessary nor appropriate to determine this issue at this time. While the San Francisco Bank is entitled to have 5678 dismissed as promptly as possible there can be no injury come to the Bank or its security by postponing such dismissal until such time as the Master makes his final report and until such time as the matter of whether or not “according to right and justice and the laws of the United States, the said appeals notwithstanding”, a portion of the costs and fees of the Special Master should or should not be assessed against and paid by the plaintiffs as specifically required by the mandate, or others in action No. 5678. In the course of deliberation on this matter it occurred to me that action 5678 could be dismissed and that possibly any costs and fees which might be assessed against the plaintiffs in action 5678, because of the discovery and inspection proceedings, might be assessed in action 5421 because of the cross-complaint filed in that action by the Los Angeles Bank seeking practically, if not identically, the same relief sought originally by the complaint in action 5678. But recourse to the record (printed record page 564) discloses that the cross-claim in action 5421 was filed only by the Federal Home Loan Bank of Los Angeles and did not contain any allegations as a class action by the six so-called member associations as was included in the original complaint in 5678. The Los Angeles Bank, by the opinion in 12591, is now non-existent and according to that opinion has been nonexistent since March 1946. Any judgment for costs in 5421 against the Los Angeles Bank alone would, therefore, be a futile and idle act, and it appears that it would certainly not be in compliance with the mandate or according to right and justice unless the contrary is shown at a hearing on that subject. Hence, costs, if a judgment for costs against the plaintiffs in 5678 results, can only be collected from the six so-called member associations who joined in 5678, but not in the cross-claim in 5421, as plaintiffs or possibly from all of the members of the class they represent. Certainly the appellate court, in requiring the dismissal of 5678 at the “cost of plaintiffs,” did not intend an idle and ineffective act, but intended that whatever the costs were they should be paid by plaintiffs in 5678. The procedure I am adopting thus appears to be the only means of effecting such payment and complying with the mandate, as a writ of execution for costs against the non-existent Los Angeles Bank would be wholly useless. And I, therefore, deem it in strict compliance with the express terms of the mandate that such costs and fees be allocated and charged under Rule 53(a) so that at the time of dismissal the matter of the liability of the plaintiff in action 5678 for such share, if any, of the Master’s fees and costs for the discovery proceedings may be settled and set forth by appropriate judgment or order. The fees and costs of the Special Master do not appear to be included within those which might be settled by the Clerk under Section 1920 of Title 28 U.S.C.A. Such fees and costs must be fixed and assessed by the Court. Furthermore, Rule 54(d) permits the court to review any action by the Clerk. And it has been demonstrated upon many occasions in this lawsuit that any appellate review will not be lightly passed by any of the litigants. A copy of this memorandum will be furnished the Special Master who will regard it as a direction to forthwith file a final report and account on the discovery proceedings and request for further fees and costs, if any, and notice the same for hearing. Upon settlement thereof and the charging of costs thereon under Kule 53 (a) against the litigants in the consolidated cases 5421 and 5678 the reference to the Special Master for the purposes of discovery and inspection will be formally terminated and the Master discharged in connection with the discovery and inspection; an Order will then be made severing action 5678 from action 5421 and a judgment made of dismissal and for costs incurred against the plaintiffs in 5678 in accordance with the terms of the mandate. Observations concerning Construction of Mandate, Opinions of Appellate Court and Proposed Orders Nos. 1, 2, 3, 4 and 5. Before proceeding to a discussion or decision of the other proposed orders and motions listed earlier in this memorandum, it is necessary to make some observations concerning the construction of the mandate and the opinions of the appellate court. As heretofore indicated, I deem it my duty to follow the mandate where it is specific, and to do such other things, “as in conformity with the opinions and judgments of the appellate court, as according to right and justice, and the laws of the United States ought to be done, the said appeals notwithstanding.” A great deal of time and care was obviously spent by the appellate court in the preparation of the long and detailed opinions. Obviously considerable care was exerted in connection with the preparation of the mandate. It is clear from the mandate and the opinion in 12591 (the attorneys’ fees appeal), that the court held, and intended to hold, that no jurisdiction existed in this court to entertain civil action 5678 and that the entire action should be dismissed. Counsel for the Home Loan Bank Board and the San Francisco Bank ar.gued with more heat than illumination that certain occasional phrases in the opinion in 12511 (the injunction appeal) held there was lack of jurisdiction of action 5421. And basing their contention thereon, instead of on the whole opinion, contended that this court should dismiss action 5421 in its entirety. After a careful re-reading of both of the appellate court’s opinions several times, as well as the mandate, I cannot agree with that contention. As indicated, the opinion of the appellate court was carefully prepared and likewise the mandate. On the face of the mandate it becomes apparent that the appellate court intended a different result in 5421 than they did in 5678 inasmuch as they used the plain language, “dismiss civil action 5678” and, “dismiss the following pleadings in civil action 5421”. Had it intended to hold in 12511 that the District Court had no jurisdiction at all, as they did in their opinion on the appeal on the attorneys’ fees, No. 12591, I must indulge the presumption that they would have plainly said to dismiss civil action 5421 as they did say to dismiss civil action 5678 instead of directing this court to “dismiss the following pleadings in civil action 5421.” But clearly the court held that the Administrative Procedure Act applied to proceedings for the appointment or ousting of a conservator, an issue in action 5421. And clearly held that “such a final administrative determination would have been subject to a judicial review at the behest of Association”, 196 F.2d 375, and that the Administrative Procedure Act applied to pending cases 196 F.2d at page 382. And specifically the court, by footnote 15, at page 379 of 196 F.2d stated: “We express no opinion as to whether the lower court or a federal court in the District of Columbia would have had jurisdiction to review the final order or ‘determination’ of Administration.” Neither of the appeals were before the appellate court on the merits. There has never been any administrative hearing either on the appointment of the conservator or on the rescinding of the order appointing him or on his accounting. 'And the very order which was on appeal to the appellate court enjoined any such administrative hearing, so such fact was well known to the appellate court in making its opinion. I cannot read the opinion of the appellate court in 12511 or the mandate as compelling any other conclusion than that action 5421 was premature and that was so because the parties had not exhausted their administrative remedies before the Home Loan Bank Board, and that after such an administrative hearing an action will lie someplace, either in this court or in the District of Columbia for judicial review in “one package” 196 F.2d at page 390. This conclusion is further fortified by the fact that the mandate is specific as to the dismissal of only certain pleadings out of the dozens which have been filed and were in the record on appeal, and the vacation of only two orders out of the hundreds which were likewise in the printed record on appeal and which had been made and entered and involved and concerned interpleader and intervention actions by several hundred persons owning property and having loans from the Association, as well as many others. Had the appellate court intended a dismissal of action No. 5421 and to do otherwise than limit its mandate and its opinion, it would not have been so specific in connection with the terms of the mandate requiring the dismissal of the pleadings only. Had the appellate court intended to dismiss action 5421 on the grounds of lack of jurisdiction, it would have been entirely unnecessary to have included all of the directions in the mandate which are carried in paragraph No. “2 a, b, c, d and e”, paragraph No. “3”, and paragraph No. “4”; all of those things would have been accomplished by a simple order directing this court to dismiss action 5421 as it did as to action No. 5678 and all of the things specifically designated in paragraphs 2, 3 and 4 would have occurred as of course. Moreover, there were many orders made in the consolidated proceedings which were regarded by all parties as final orders. Under the appellate court opinions this court must determine as to all of them whether such were, “ancillary”, or whether “independent”, grounds of jurisdiction existed. The appellate court obviously did not desire to disturb them, otherwise it either would have directed the dismissal of the action or the vacation of such orders. Reference to a few of such orders demonstrates the point. Entirely apart from the interpleader of Title Service Company as owner under trust deeds of the legal title to many hundreds of parcels of land, persons owning the beneficial interest and purchasing over 400 separate parcels upon which residences either had been constructed, or were in course of construction, filed 51 interpleader-interventions and final orders were made thereon. While the attorneys for the San Francisco Bank refer to all interventions and interpleaders and the issues raised thereon, as “spurious”, “specious”, “blatantly specious” and like invectives, an appropriate judicial approach thereto will not permit them to be brushed off so easily. The fact is, and has never been denied by anyone, that such owners were paying off loans on individual houses to the Long Beach Association which loans were secured by trust deeds upon their property under which trust deeds the legal title of each parcel was held by a third party as trustee; that the conservator then claimed the right to have payments on such loans made to him as conservator at the same time that the Long Beach Association, the Shareholders Protective Committee were claiming the conservator had no such right and that payments thereon should be made to the regularly elected officers of the Association; that such owners desired (as they were entitled to do), to pay their obligations on such notes and trust deeds in full and receive clear and merchantable titles to their property; and that if such owners paid to one or the other of the contending factions they ran the risk of possible liability to whichever contending faction might ultimately prevail in either an administrative or judicial proceeding. At the time of filing those interpleader-interventions, there was thus clearly an “independent” ground of jurisdiction under the interpleader statute, 28 U.S.C. § 1335 (then 28 U.S.C. § 41). Jurisdiction under the interpleader statute does not depend upon which of several claimants may ultimately be held to be right or wrong. The essence of it is that one holds money or property and that two or more claimants who are adverse to one another “are claiming or may claim to be entitled to such money or property, or to any one or more of the benefits * * * arising by virtue of any such obligation”. The statute is thus very broad. The validity of the appointment of the conservator had not then been, and it is contended by the Long Beach Association that it has not yet been, determined on the merits, either by administrative hearing or judicial proceedings in review thereof. By the terms of order 2015, 14 F.R.D. 273-289, footnote 11, all of grounds originally asserted as the basis for the appointment of the conservator are reincorporated by reference to the more definite statement therefor of May 20, 1946, 14 F.R.D. 273 at page 280, footnote 4. And no hearing has yet been had on Order 2015 but the order of September 21, 1953, vacating the injunction of December 2, 1949, clears the way for such process to now begin. During the pendency of the proceedings this court, from time to time, made orders on the above mentioned interpleader-interventions, which orders required the deposit of money in court by the property owners, the execution of simultaneous requests for reconveyance by the conservator and by the Long Beach Association, and the execution of reconveyances by the Trustees holding legal title to the various properties. If such orders were not final orders, and if action 5421 were dismissed, then instead of such transactions being fait accompli, the parties who obeyed such orders would be in a position to claim that their acts in compliance with such orders might be vacated on the ground that they were not voluntary but were coerced by an invalid order. Such contention might appear to be farfetched, but one cannot foresee in this litigation what contentions may be made by either the San Francisco Bank, the Home Loan Bank Board, the Association, or others and be ultimately right. One of the functions and duties of this court is to exercise its powers so as to avoid future litigation. If such contentions are made it will cause a cloud upon the title of the property owners who in this litigation are innocent third-parties and should be removed from the maelstrom of this litigation. As hereinafter appears, the Home Loan Bank Board, the official defendants and the Federal Savings & Loan Insurance Corporation, have filed pleadings after the turn-back order in January 1948, alleging that Ammann is still conservator, albeit their final and present position is somewhat confused by subsequent pleadings. Such orders must have been recognized by the appellate court as final orders, or it would have directed the vacation of such orders and not limited its mandate to the vacation of only two orders out of all that have been made, or it would have directed the dismissal of the action. On page 85 of the brief filed by the appellants in 12511 it is stated that such orders are regarded as final orders. If they were final orders then a dismissal of action 5421 would cut the ground out from under them, and lay the groundwork for further extensive litigation, which should and can be, and is avoided, by the terms of the mandate as I interpret it. I therefore conclude that from the two opinions and the mandate that the appellate court did not intend that action 5421 should be dismissed. Accordingly, I shall by separate and appropriate order dismiss the following pleadings in civil action 5421-PH: (a) The complaint of Mallonee, Bucklin and Fergus, and all amendments and supplements thereto, at the cost of said complainants; (b) The cross-claim and third-party complaint of Long Beach Federal Savings and Loan Association, and all amendments and supplements thereto, at the cost of third party-complainant and cross-claimant; (c) The cross-claim of Federal Home Loan Bank of Los Angeles, and all amendments and supplements thereto at the cost of said cross-claimant; (d) The cross-claim in interpleader of Title Service Company, and all amendments and supplements thereto, at the cost of said cross-claimant; (e) The cross-claim in interpleader, and all amendments and supplements thereto, of Robert H. Wallis, at the cost of said cross-claimant. The order for dismissal as to Wallis will provide for the return to Wallis of the $50,000 cashiers check. While I felt that independent grounds of jurisdiction always existed as to the Wallis controversy, under the interpleader statute, I have no choice but to obey the mandate. Order No. 8, re George Turner interpleader. Proposed Order No. 8 is an order for the dismissal of the cross-claim and interpleader of George Turner. Obviously the appellate court considered this to be in a different category than Title Service and Wallis interpleaders as it was not specifically included in the mandate, although mentioned in the opinion. This complaint in interpleader was filed in the within action by reason of the allegation that Ammann, the conservator, gave notice to Turner of the termination of a lease on property which the Association had leased to Turner. The Association and the shareholders were demanding that Turner pay the rentals in accordance with the terms of the lease, and, Turner claiming to be confronted by conflicting demands from the conservator that the lease was terminated, and the demands of the Association and the shareholders’ committee that it was not, deposited in court the rentals accrued and continued to do so, during the period of the conservatorship. As heretofore appears by Order No. 388, and by Order of this court made on the 23d day of January, 1948, the Association was returned to its officers and directors. If that were all there were to it and if, as government counsel contended in their brief on appeal in 12511 (pages 34 and 35 thereof and footnote 4) that the order of January 23, 1948, terminating the conservatorship and directing the return of the Association was a, “final order and no appeal having been filed within the time allowed, the propriety thereof is no longer open for consideration,” it would be a simple matter and would require the dismissal of the Turner interpleader as there would then be no dispute or controversy between two contending factions, with Turner being caught in the middle. But such is not the case as shall presently appear. The Board of Trustees for the Federal Savings and Loan Insurance Corporation are the members of the Federal Home Loan Bank Board. Thus the same persons who are members of the Home Loan Bank Board act in a dual capacity as members of the Home Loan Bank Board and as trustees of the Federal Savings and Loan Insurance Corporation. Title 12 U.S.C.A. § 1725. The Federal Savings and Loan Insurance Corporation has filed various pleadings in which it is asserted in varying ways that A. V. Ammann, in spite of the Order No. 388 of the Home Loan Bank Board rescinding the appointment of Ammann as conservator and directing the return of the Association, is and always has been, and continues to be, the conservator for said Association. Typical of such allegations is the following, taken from the Answer of the Federal Savings and Loan Insurance Corporation to Amended Cross-Claim and Supplemental Cross-Claim of Long Beach Federal Savings and Loan Association dated July 18, 1949, wherein it is alleged inter alia (printed record page 7030), “This defendant further states that said A. Y. Ammann has continued to be, and is now, the proper and ■duly designated conservator for said Association * * * This allegation is adopted not only by the Federal Savings and Loan Insurance Corporation but by the Home Loan Bank Board and all of the official defendants in their ‘‘Answer to the Second Supplemental Cross-Claim of the Long Beach Federal Savings and Loan Association upon the Conservator’s Bond and against the Federal Savings and Loan Insurance Corporation” by the following allegation (printed record page 7061): “These defendants incorporate all of the denials and statements made in their answer to the Amended Cross-Claim and Supplemental Cross-Claim of the Long Beach Federal Savings and Loan Association, and in their answer to the First, Second and Third causes of cross-claim.” That answer was likewise dated and filed July 18, 1949. The situation is further confused by an answer filed November 14, 1949, by the Federal Savings and Loan Insurance Corp. to the second supplement to cross-claim in interpleader of George Turner and to said cross-claim in interpleader and supplement thereto (printed record pages 8161 and 8163) wherein it re-alleges the defenses, answers and allegations in the previous answer filed to the various pleadings of the Long Beach Federal Savings and Loan Association “except that this defendant admits that the legal conclusion alleged in said answer that defendant A. Y. Ammann has been conservator for the Association since January 24, 1948 is erroneous and admits that the order of this court of January 23, 1948 to the extent that said order purported to remove said Ammann as conservator and restore the operations of said association to its former management, became final on execution thereof.” And an answer filed the same date by the defendants Home Loan Bank Board, its members and the other official defendants to the Turner cross-claim in interpleader and supplements thereof, (printed record page 8163) “that on January 24, 1948 the defendant Ammann was removed as conservator by order of this court, which order insofar as it purported to remove the defendant Ammann, to restore the operations of said Association to its former management was finally executed and became final on January 24, 1948; and that after the time for appeal from said order expired, neither the defendant Ammann nor any of these defendants, has ever asserted and does not now assert, any claim either ■on behalf of themselves or the defendant Association to said leasehold or to any rentals accruing thereunder.” The latter allegations in answer to Turner’s interpleader are contrary to the allegation in the answers of said Federal Savings and Loan Insurance Corp., the Board, and the official defendants, to the pleadings of the Long Beach Association, hereinabove quoted, and no amendment has ever been made to the latter mentioned answers. So that there is in one set of pleadings an assertion that Ammann always has been and still is the conservator, and in another set the contrary appears. The Federal Savings and Loan Insurance Corporation, the Board and the official defendants are thus like the proverbial cat which stays in a position to jump both ways, and which way they are going to jump cannot be seen until at least after an administrative hearing on Order No. 2015, as shall presently appear. One of the grounds for the appointment of Ammann, as contained in the More Definite Statement of Causes dated May 29, 1946, full text see 14 F.R.D. 273 at page 280, footnote 4, is that “(i) on or about May 8, 1946 the said Association through its officers, executed a purported lease on a hotel property located at 322 American Avenue, Long Beach, California, owned by it, to one George Turner for a twenty-year period on terms, which, in effect, would give to the said Turner the use of said property without adequate consideration therefor to said Association.” While the hearing' on that order was indefinitely postponed in November 1947 and the Board made its order No. 388 on January 17, 1948, rescinding the appointment of Ammann and directing the return of the Association from the conservator, the Home Loan Bank Board nevertheless, on September 9, 1949, by its order No. 2015 set another administrative hearing (this is the order, hearing upon which was enjoined by the order of December 2, 1949 resulting in appeal 12511) and reincorporated all of the asserted violations set out in the More Definite Statement of May 29, 1946, including the assertion hereinbefore quoted as paragraph (i) of said More Definite Statement of May 29, 4946. As indicated, the Home Loan Bank Board is now free to go ahead with the administrative hearing originally ordered by its order No. 2015 in which the attack upon the Turner lease is made, by charging it as an act of mismanagement by the officers of the Association. Thus the only conclusion which can be reached from the rather confusing allegations contained in the various answers to the Turner interpleaders and from order 2015, is that Turner is still confronted with the assertion of invalidity of his lease on the part of the Home Loan Bank Board during the period of the conservatorship, if not afterward. It may well be that at the administrative hearing which is now free to be had by the Home Loan Bank Board on its order 2015, said assertion will be abandoned or the Board may disapprove that allegation. In that event Turner, of course, would have no cause of action in inter-pleader. It is not intended to suggest that the Board has any plenary jurisdiction to determine the validity or invalidity of the Turner lease. It seems to me that in view of the fact that there was no specific direction in the mandate for the dismissal of the Tur