Full opinion text
BONE, Circuit Judge. On June 4,1954, above named Petitioners filed with this Court a motion for leave to file an attached petition in which they prayed for writ of mandamus, injunction and other appropriate relief, and for a rule to show cause directed to the Respondents above named. The prayer of the petition was for an order or orders as follows: “1. Directing dismissal forthwith of Action No. 5678 in said District Court. “2. Directing dismissal forthwith of Action No. 5421 in said District Court, together with all cross-actions, actions in interpleader, actions in intervention and third party actions pending therein. “3. Directing dismissal of the cross-claim and third party complaint filed by Long Beach Federal Savings and Loan Association, the complaint in intervention and inter-pleader of Title Service Company, the complaint in intervention of Robert H. Wallis, the complaint in intervention of John D. Willhoit, and the cross-claim of Home Investment Company in said Action No. 13979. “4. Directing the return forthwith to San Francisco Bank of promissory notes and collateral heretofore ordered returned by the mandate. “5. Directing dismissal forthwith of Action 15588 in said District Court. “6. Directing the remand forthwith of said Action 13979 to the Superior Court of the State of California in and for the County of Los Angeles. “7. Enjoining respondents other than said District Judge and District Court from prosecuting any action or proceeding asserting issues which have been finally determined by this Court. “8. For such other and further relief as to the Court may seem just and equitable.” Upon consideration of the allegations contained in said motion and petition, this Court entered an order granting' leave to file the petition and directing that a written response thereto by Respondents named in said petition be filed with this Court and served upon counsel for the above named Petitioners. Thereafter, Respondent District Judge filed with this Court his response, the same being a Return and Answer to the said petition coupled with a motion to dismiss the petition. The Respondent Judge filed a brief in support of the allegations in the aforesaid documents. The other respondents above named joined in filing a Return and Answer to the aforesaid petition. In this document these respondents appeared specially and voiced objection to the jurisdiction of this Court over the persons of these respondents or over the subject matter of the said petition. Upon a prior request of their counsel for advice as to the scope of argument we desired to have presented on the instant petition for relief we advised counsel for all parties that we desired them to defer argument on the question of remand of a certain action (hereafter referred to as the “note case”) to a California State Court. This action is now pending in the court of Respondent District Judge under number 13,979. Two appeals growing out of certain proceedings in the lower court in action 13,979 are now pending in this Court under our docket numbers 14,587 and 14,632. Pursuant to leave granted by this Court on March 25, 1952, action 13,-979 was originally instituted in the State Court by San Francisco Bank and later removed to the lower court. Pursuant to our suggestion, no argument was presented in the instant proceeding on the issue of remand of 13,979. (See paragraph 6, supra, of prayer of petitioners’ petition referring to said case 13,979.) The “note case” is an action instituted by San Francisco Bank against Long Beach Federal Savings and Loan Association (one of the Respondent litigants herein) to recover judgment on four notes of Long Beach (which had been given to evidence a loan to Long Beach while one Ammann was serving as its Conservator) and to foreclose the collateral securing the same. In this opinion we will sometimes refer to the Respondent District Judge and to his court as the “District Judge,” as the “court below” or as “the lower court,” as the context will permit or suggest. Respondent litigants herein may be so designated, or merely be referred to as the “litigants.” “Home Loan Bank of San Francisco” will be referred to as “San Francisco Bank.” As a group, petitioners in the instant petition for relief may sometimes be referred to as the “petitioners herein” or “petitioners,” and their petition as “petition” or “petition for relief.” Any reference herein to “Association,” “Long Beach Association” or “Long Beach,” means the Long Beach Federal Savings and Loan Association, one of Respondent litigants herein. The term “consolidated cases” or “consolidated actions” means the two cases before us on the appeal in which we rendered the decision reported in 196 F.2d 336, and frequent reference will be made to this decision. One of the cases before us on that appeal was the so-called Mal-lonee action; the other was the so-called Los Angeles action. We later refer to the status of the Los Angeles action (No. 5678 in the lower court) in the long litigation of which it was a part. Where we refer to Home Loan Bank Board the term includes “Administration” (in existence in 1946) where justified in context. As concerns the status of this Board, pur opinion in the Mallonee case refers to certain reorganization orders creating “Administration” which were in force in 1946. The above noted petition and all responses thereto came on for hearing before this Court on February 28, 1955, and arguments for all parties were presented. This Court has before it and has duly considered a vast array of copies of numerous records and files in many cases, which copies were filed as exhibits for our inspection by the several counsel present at the hearing. We find that these “exhibits” are • correct copies of pleadings, records and documents now and/or heretofore lodged and filed in actions pending in the lower court, and we take judicial notice of these actions and pleadings therein. In this connection, it should be noted that Respondent litigants do not challenge the fact of their filing and docketing in the lower court, nor do they challenge the correctness of the said copies. All of said noted pleadings and actions directly relate to, embrace and/or present (as their controlling and basic contentions and issues) practically all of the contentions and issues heretofore presented, considered and adjudicated by this Court in three later noted opinions and decisions. See particularly our decision in case No. 12,511 (later noted Mal-lonee opinion) which dealt with and disposed of issues presented in what we there called and are here referred to as the “consolidated cases.” In addition to the above noted case records so filed with us, counsel for San Francisco Bank filed in open court at the argument a printed brief (styled “Partial Chronology”) which “summarizes” certain of the pleadings and procedures in the lower court since our mandate of May 21,1953 was issued. The procedural activities revealed by this additional summary of the record are so numerous that we are not justified in setting them out at length in this opinion. However, they are pertinent to our inquiry and have provided much aid in considering and disposing of the array of issues before us. This document was filed by reputable officers of this Court and no objection has been made challenging its filing or its accuracy in detailing the facts therein enumerated. We therefore accept it as a record correctly stating the facts therein set forth. It is urged by petitioners herein that the scope, nature and form of orders and/or relief sought by them in the aforesaid petition is justified and made necessary by the showing made in the records, files, and exhibits in the entire body of litigation which we here consider. This litigation has been engaging the attention of the courts for approximately nine years, and petitioners argue that the aforesaid record clearly reveals that Respondent litigants have instituted, and are now instituting numerous harassing proceedings and actions of the lower court (certain of these actions being still pending in said court) and that in and by such proceedings and actions Respondent litigants have wrongfully and erroneously asserted, and are continuing to assert legal claims for relief against these petitioners which are without basis or foundation in law in that such claims have been adjudicated adversely to such claims in and by previous controlling holdings and rulings of this Court in its opinions and decisions herein referred to, and in and by holdings and decisions of the Supreme Court of the United States directly affecting the litigation here considered. And as a further ground for granting the relief here sought by petitioners, it is urged by petitioners that the lower court has wrongfully and without justification in law entertained, and continues to entertain, all of the said proceedings and/or actions all to the injury and harassment of petitioners and without regard to the said decisions and opinions of this Court and of the Supreme Court; that as a consequence petitioners have no adequate remedy against the proceedings here complained of save and except by and through the remedy prayed for. Since our three opinions and decisions will be frequently mentioned we identify them and their dates at this point. They are: Home Loan Bank Board v. Mallonee (Federal Home Loan Bank of San Francisco v. Federal Home Loan Bank of Los Angeles), No. 12,511, 9 Cir., 196 F.2d 336, dated April 2, 1952; Fahey v. O’Melveny & Myers (Federal Home Loan Bank of San Francisco v. O’Melveny & Myers), No. 12,591, 9 Cir., 200 F.2d 420, dated November 6, 1952; Fahey v. Calverley (Federal Home Loan Bank of San Francisco v. Calverley; Fahey v. Gilbert; Federal Home Loan Bank of San Francisco v. Gilbert; Fahey v. Walker; Federal Home Loan Bank of San Francisco v. Walker), Nos. 13,411, 13,558, 12,-575, 12,893, 13,055, 9 Cir., 208 F.2d 197, dated November 23, 1953. In the interest of brevity these opinions and decisions will generally be referred to respectively as the “Mallonee opinion” (in the so-called “consolidated cases”), “O’Melveny & Myers opinion,” and “Calverley opinion.” Our Calverley opinion disposed of five appeals from the court below. Pursuant to this Court’s Mallonee and O’Melveny & Myers opinions and decisions, a consolidated mandate covering both decisions (cases 12,511 and 12,591) was issued by this Court on May 21, 1953. A petition for certiorari was filed after a rehearing had been denied in (Mallonee) case No. 12,511, which petition was denied by the Supreme Court on May 4, 1953, Mallonee v. Fahey, 345 U.S. 952, 73 S.Ct. 863, 97 L.Ed. 1374. Rehearing was denied on June 8, 1953, 345 U.S. 978, 73 S.Ct. 1120, 97 L.Ed. 1393. Parenthetically, we point out that in the instant Return and Answer of Respondent litigants they argue that this mandate covering these two cases “is the only mandate- enforcement of which is sought by petitioners’ present writs.” As our Mallonee opinion (No. 12511) indicates, the court below had “consolidated” the Mallonee action (No. 5421 below) with the (later noted) Los Angeles action (No. 5678 below). However, our opinion was primarily and almost exclusively devoted to a consideration and disposal of the many issues presented in case No. 5421 below. In this opinion we deferred for possible later determination in any appeal to this Court the issues then pertinent only to the so-called Los Angeles action. After our second opinion (No. 12591) in the O’Melveny & Myers case petitions for writs of certiorari to review our decisions in 12511 and 12591 were filed with the Supreme Court. Certiorari was denied on May 4, 1953, 345 U.S. 952, 73 S.Ct. 863, 97 L.Ed. 1374, rehearing denied June 8, 1953, 345 U.S. 978, 73 S.Ct. 1120, 97 L.Ed. 1393. See our later comment on the relationship of issues in the O’Melveny & Myers case to those in the Los Angeles action. Our third opinion was in the Calverley case wherein it appears that issues in four other cases were also involved and disposed of. The issues posed in these five cases were so closely related to and intimately involved in the issues disposed of by our two previous opinions that they were literally part and parcel of the many issues decided in the opinions in these first two appeals, and particularly in our decision in the Mallonee case. A petition for certiorari in the Calverley case was denied by the Supreme Court on April 26, 1954, 347 U.S. 955, 74 S.Ct. 680, 98 L.Ed. 1100. Our opinion and judgment of November 23, 1953, in the five appeals in the Calverley case (Nos. 13,411, 13,558, 12,-575, 12,893 and 13,055) dealt with appeals taken by petitioners herein from orders entered by the district court in the “consolidated actions” above referred to. In our opinion and judgment we reversed the various orders of the district court from which appeals had been taken, on the ground that the actions in which said orders were entered presented no jus-ticiable controversy within the jurisdiction of the district court. As the district court noted (Mallonee v. Fahey, D.C., 117 F.Supp. 259, at page 292), a copy of this Court’s opinion of November 23, 1953 was before it while its memorandum was being written, but the district court chose to disregard it because that opinion “is not final as neither the time for rehearing or certiorari has expired.” Mandates of this Court in the Calver-ley case were issued on May 4, 1954, pursuant to and in conformance with our decision in that case. Respondent District Court on June 8, 1954, following a hearing held on May 24, 1954, entered orders in the form proposed by petitioners in the instant proceeding. These orders vacated four interim orders awarding fees to the Special Master which were the subject of the appeals 12,575, 12,893 and 13,055; vacated the orders appointing a receiver and allowing the receiver costs which were the subject of appeals 13,411 and 13,558 and dismissed the cross-claim and the separate complaint filed by the receiver. Apparently all matters pertaining to the receivership have now been disposed of, or at least our attention has not been drawn to any residue of controversy pver this matter. We later comment on an issue concerning payment of fees to the Special Master. The Los Angeles Action We digress to point out that the independent plenary action (No. 5678 below) instituted by the Federal Home Loan Bank of Los Angeles in August of 1946 was drawn within the orbit of and consolidated with the Mallonee case, which had previously been instituted in May of 1946. (See reference to the Los Angeles action on pages 341 and 343 of 196 F.2d of our opinion in the Mallonee case.) This action by Los Angeles Bank was therein referred to as the “Los Angeles action.” The issues tendered by plaintiffs in the Los Angeles action were never tried below on the merits, hence these issues were never directly before us for decision on an appeal in that case. However, the mayor and controlling issues tendered in the lower court by the pleadings of the plaintiffs in the original Los Angeles action, and particularly those dealing with the status of Federal Home Loan Banks, were subsequently before us and were necessarily-considered and disposed of in our O’Melveny & Myers opinion. The appeal in the O’Melveny case arose -out of a challenge by petitioners in the instant proceeding to the validity of an order in which the trial court granted attorneys’ fees to counsel for Los Angeles Home Loan Bank. In our O’Melveny & Myers opinion (200 F.2d at page 481) we remanded the O’Melveny & Myers case to the lower court with directions to the lower court to dismiss the Los An-geles action. So much for the Los An-geles action. Because of their vital bearing on the complicated issues now before us on the petition we feel obliged to burden this opinion by noting certain of the more important and highly significant procedural steps (including the filing of certain “new actions” in the lower court) following issuance of our mandate of May 21, 1953. While these events are far from a complete list they serve to point up with emphasis the unremitting efforts of Respondent litigants to relitigate, or to continue litigating, the same vital issues we considered and disposed of in our three noted decisions. See comments in footnotes 3 and 8 regarding expansion of the litigation. This record also serves in small measure to make plain the extent of the onerous duties imposed upon Respondent District Judge who since early in 1946 has been compelled to wrestle with the incredible confusion growing out of innumerable problems being steadily thrust to the front in this continually expanding litigation. This burden has been added to the task of disposing of many other civil and criminal cases crowding the docket of his court since 1946. As we shall later indicate, Respondent litigants rest, in part, the claim of right to pursue this course of renewed and continuing litigation on specific language appearing in the “Housing Act of 1954.” However, it should be emphasized that many proceedings in the continuous process antedate the effective date of that Act — August 2,1954. On May 25, 1953, petitioners presented to the said district court their motion (followed by a written motion served and filed about May 28, 1953) that the said mandate of May 21, 1953, be spread upon the records of the said district court and the judgment be entered pursuant thereto. Petitioners also presented to the said district court a form of order in the terms of this Court’s mandate. The district court declined to spread said mandate or to take any action in connection therewith until June 24, 1953, when, upon further hearings, it ordered the mandate spread but continued to August 3,1953, further consideration of the entry of orders on said mandate and directed petitioners herein to submit on or before July 17, 1953, a separate form of order as to each provision of our said mandate. Pursuant to such direction, petitioners, on July 16, 1953, filed 14 separate proposed orders. Oppositions and counter proposals were filed on or about August 3, 1953. Thereafter, at the suggestion of the district judge, petitioners filed a response to such oppositions wherein they requested an early disposition of the proceedings in accordance with the said mandate of this Court. With the sole exception of one order entered September 21, 1953, nothing further was done until October 12, 1953, when the lower court commenced' a series of hearings lasting eight days at which arguments were heard on the proposed orders, upon requests for affirmative relief inconsistent with the opinions and mandate of this Court, and upon various motions filed in pending action 13979 (the above mentioned “note case,” see footnote 2) which the district court considered to be interrelated with the said “consolidated actions.” On November 30, 1953, the district court filed a memorandum of opinion on mandate (117 F.Supp. 259) indicating the court’s intentions with respect to the orders to be entered. Following the November 30, 1953 opinion on the mandate the said district court on December 11, 1953 entered orders dismissing the cross-claim of one Roy Hegg and the principal pleadings listed in the mandate. The district court, however, declined to enter judgment dismissing the so-called Los Angeles action. Likewise, it refused to enter orders vacating its prior orders relating to the accounting by the prior Conservator of Association (A. V. Ammann, whose status was discussed in our Mal-lonee opinion), refused to vacate its prior orders for inspection of the records of San Francisco Bank, dismissing the cross-claim of George Turner, dismissing the complaint and intervention of John D. Willhoit, denying the petition and supplement thereto of First Federal Savings and Loan Association of Bellflower to in-terplead stock subscriptions, and dismissing the purported petitions and inter-pleader in re insurance premiums payable to Federal Savings and Loan Insurance Corporation, all of which proceedings were ancillary to the main so-called “consolidated actions” (see Mallonee opinion) and none of which had an independent basis for federal jurisdiction. See this Court’s Calverley opinion. Notwithstanding the three above noted opinions of this Court holding the district court without power to proceed in the “consolidated actions,” the district court undertook affirmative action therein when it directed a Special Master it had appointed to file a final report and request for fees (Mallonee v. Fahey, 117 F.Supp. at page 272), which matter was argued before the district court in January, 1954. But see Mallonee v. Fahey, D.C., 122 F.Supp. 472 re master’s fees. On January 22,1954, the district court, on motions of Association and collaborating parties, entered an order in the “consolidated actions” substituting as parties defendant and cross-defendant certain of the so-called official defendants, i. e., present and former members of the Home Loan Bank Board, and in that order the said district court stated that “substantial need for continuing and maintaining the above-entitled (consolidated) action was satisfactorily shown to this court.” The mandate of this Court (footnote 3, supra) specifically directed the said district court to return to San Francisco Bank the promissory notes and collateral securing same. The district court on December 11, 1953, entered an order directing that such property be delivered to San Francisco Bank on December 22, 1953. But on December 21, 1953, upon the ex parte application of Association, the district court entered an order staying the enforcement of its said order of December 11, 1953, upon the ground that an application had been made in the “related” and above mentioned “note case” (13979) for the retention of such property in the Registry of the court. Said stay is still in effect. It is clear that by this last mentioned order staying the enforcement of its delivery order of December 11, 1953, the lower court was subjecting the Bank’s collateral to the final outcome of Action 13,979 without the consent of the Bank, thereby materially impairing the contract rights of the Bank. On June 10, 1954 the court rendered a memorandum opinion entitled and filed in both the “consolidated actions” and note case, 13979. This opinion consists of 90 pages, plus 58 pages of exhibits and is before us as an exhibit on this hearing. The length and complexity of the memorandum makes it impractical to summarize its contents. The order therein proposed by the lower court would substitute for the collateral now in the registry of the court (which San Francisco Bank is entitled to receive under our mandate) entirely new collateral of approximately $7,000,000 of United States Government Bonds. It would also impose on such substituted collateral conditions and restrictions to which the collateral was not subject at the time it was impounded by order of the district court. We view such a proposal as a direct violation of our mandate of May 21,1953. We mention this matter because San Francisco Bank is entitled to be restored as nearly as possible to the status as a secured creditor of Association which it occupied prior to the impound and release of the individual borrowers’ notes and deeds of trust. If this order is executed San Francisco Bank would be compelled to accept collateral to be selected by Association and the lower court. For nearly eight years Association has had on deposit in the Registry of the court approximately. $1,500,000 in cash upon which no interest has been earned, and since December, 1947, the coupons attached to $5,300,000 of Government Bonds in the Registry of the court have not been cashed. This situation merely spells out a continuance of pre-existing conditions. Since March, 1948, San Francisco Bank has not received any interest on its notes of $6,300,-000 and the accumulated interest on such notes does not bear interest. The loss here noted has resulted solely from the acts of Association in obtaining the impound of the collateral security. These matters are to be kept in mind by reason of the fact that the mandate of this Court required that the bonds and cash in the Registry of the court should be returned to San Francisco Bank “without charge or impairment” and the district court is without authority to charge the collateral with conditions which would materially reduce its value as collateral by creating a new contract between the parties which we think the court was without jurisdiction to make. The lower court also obviously sought by its proposal to require the San Francisco Bank to give a form of receipt for the returned collateral which would restrict the use of the collateral to payment of the amount “finally adjudged to be due on the conservator’s notes to San Francisco Bank * * * in Action 13,979 * * The practical effect of the proposed order of the district court limiting the use of the collateral would be to continue the existing impound of the collateral for an indefinite period of time and to destroy the Bank’s collateral security altogether if for any reason action 13,979 should fail through some technicality. From all of this it appears that the force and effect of the mandate of this Court has been evaded to the extent noted by the process of entering a contradictory order in a related action involving the same parties. And see Independent Nail & Packing Co. v. Perry, 7 Cir., 214 F.2d 670 (cited in footnote 10, infra) where the court held that the district court’s order staying a judgment entered pursuant to a mandate from the court of appeals violated the mandate, and it issued a writ of mandamus to put its judgment into full force and effect. We have indicated above why we do not here dispose of the remand, issue in said “note case,” but reference to this case is necessary because of the important bearing of that action (still pending in the lower court) on the issues before us. This “note case” was an action instituted on March 27, 1952 in a State court by San Francisco Bank against Association to recover judgment on the four notes delivered to that bank by A. V. Ammann while he was serving as Conservator of Association. These notes were given to evidence a loan to Association which loan had been negotiated by Ammann, and the purpose of the suit in the State court was to recover judgment on these notes and to foreclose the impounded collateral securing the same. The suit was instituted pursuant to leave granted by this Court on March 25, 1952. These are the same notes and collateral which had originally been impounded by the district court in the consolidated actions above mentioned and which this Court’s mandate of May 21, 1953 directed be returned to the San Francisco Bank. In the Mallonee action Association had directly challenged the validity of these notes and had sought their cancellation on the ground, among others, that they had been executed by a conservator whose appointment was void, notwithstanding the fact that the status of the Conservator had been settled by Fahey v. Mallonee, 332 U.S. 245, 67 S.Ct. 1552, 91 L.Ed. 2030, and Ex parte Fahey, 332 U.S. 258, 67 S.Ct. 1558, 91 L.Ed. 2041. Upon petition of Association, said note action was removed to the district court, where it now bears number 13,979. San Francisco Bank moved to remand this action to the State court. On May 27, 1953, the lower court entered an order and opinion denying this motion. By answer, cross-claim and third party complaint (filed in the “note case”) Association has injected into this “note case,” and seeks to relitigate therein, all of the issues which have been litigated and in our view finally determined in our Mallonee opinion in the “consolidated cases.” Its cross-claim and third party complaint are two pleadings so lengthy as to defy an attempt at any sort of reasonable analysis. They name as defendants and cross-defendants therein substantially all of the principal parties who had been named as cross-defendants in the original consolidated actions. They incorporate by reference and have attached thereto as exhibits, the pleadings filed by Association in the original “consolidated actions.” They also name as party defendants the huge army of Does to which we have made reference in Footnote 2. For example, each of the prayers for relief in the cross-claim and third party complaint contains the following: “All prayers for relief in all former pleadings, cross-claims, petitions, motions, answers, complaints, all other documents filed by this third party plaintiff in said action 5421-5678-7989-P.H. are hereby incorporated herein by reference and made a part hereof as if herein set forth at length, except as to matters previously granted to this third party plaintiff by final judgments and orders of the Court.” (See footnote 3.) One of the many prayers for relief in the said cross-claim of Association reads as follows: “Reincorporating of all prayers for relief from former pleadings. “All prayers for relief in all former pleadings, cross-claims, petitions, motions, answers, complaints, or other documents, filed by this cross-claimant in said Action Nos. 5421, 5678, 7989-P.H., are hereby incorporated herein by reference cmd made a part hereof the same as if set forth herein at length(Emphasis ours.) Counsel for Respondent litigants frankly stated in argument before us on the instant petition that an issue his clients want to try all over,again in action 13,979 is the validity of the seizure of the assets of Los Angeles Bank when these assets were transferred to San Francisco Bank. The claim that Los Angeles Bank had been “unlawfully seized” was.one of the principal issues considered and disposed of adversely to that claim in our O’Melveny & Myers opinion, supra. In addition to the foregoing mentioned answer, cross-claim and third party complaint filed in the note case, Association also filed an “answer” (on October 13, 1952) to the complaint of San Francisco Bank in the note case. The answer is very lengthy and we do not burden this opinion with a recital of its many allegations, but we think it desirable to note that in the demand for relief in this pleading Association prays that the lower court order its clerk to cancel and nullify the (four) promissory notes which were the basis of the suit of San Francisco Bank. Association further prays that the lower court adjudge and decree that said Association “is under no liability or obligation of any nature whatsoever, either because of, or by reason of, said notes or otherwise to said purported San Francisco Bank or any of said cross-defendants.” Here again is an undisguised frontal attack on the authority of Conservator Ammann to execute the four notes of Association which of course also constitutes a challenge to, and a denial of, the validity of his appointment as Conservator of Association back in 1946. In connection with the foregoing references to prayers for relief we again note that action No. 5421 was the original “Mallonee action” and action No. 5678 was the original “Los Angeles action” both being instituted at the beginning of this litigation early in 1946. Cross-claims filed in the “note action” (No. 13,979) by Title Service Company and Robert H. Wallis also seek the identical relief sought by them in the original “consolidated actions,” and incorporate by reference and have attached as exhibits all of the pleadings filed by them in the said “consolidated actions.” These two cross-claims of Title Service and Wallis (filed as “proposed” complaints) also named as defendants apparently all of the defendants named in the complaints of Association to which we refer in footnote 2 herein, including the eight thousand “Does” sued by Association. Following our O'Melveny & Myers opinion. San Francisco Bank filed in the said “note action” 13,979 in June, 1953, motions to strike and to dismiss the cross-claims and third party complaint filed by Association and collaborating parties on the ground, among others, that said pleadings seek to relitigate issues which this Court in the “consolidated actions” had determined were beyond the power of the district court to entertain. These motions were opposed and after several continuances were finally heard by the district court in conjunction with the arguments on forms of orders on mandate in an eight day series of hearings commencing October 12, 1953. We are not advised that any decision on these motions has yet been rendered. Association, in response to the district court’s apparent suggestion in its opinion on mandate of November 30, 1953 (Mallonee v. Fahey, 117 F.Supp. at pages 289, 292), filed in the said “note case” on December 21, 1953, a “Motion for Retention of $14,000,000 of U. S. Bonds, Cash, etc., in Registry of Court in Foreclosure Actions” seeking in effect to prevent delivery to San Francisco Bank of the notes and collateral on deposit in court, the return of which had been directed by this Court’s mandate of May 21, 1953, in the “consolidated cases.” The district court thereupon issued on December 21, 1953, an order returnable January 11, 1954, to show cause why the relief requested in the motion should not be granted. Response was made by San Francisco Bank opposing the motion. So far as we are advised, the motion is still pending and undetermined. By failing to dispose of this motion in the “note case” the district court has maintained in full effect its stay entered in the “consolidated cases” suspending the delivery of the said notes and collateral to the San Francisco Bank. We have heretofore commented at some length on this stay procedure. New Action No. 15,588 On June 5, 1953, Association filed another action (No. 15,588) in the lower court naming as defendants therein all the principal parties who had been cross-defendants in the original “consolidated actions.” In the complaint, a copy of which is before us as an “exhibit,” Association repeats allegations made by it in cross-claims in the original “consolidated actions” and seeks to relitigate issues heretofore considered and adjudicated by this Court in our opinion in the said “consolidated actions.” We are advised that Association has so far withheld service of process in this pending action although orders of substitution of certain parties defendant have been entered therein on January 22, 1954. The complaint in 15,588 is one in interpleader and for declaratory relief. It names as defendants the various parties who had been named as defendants in the two new actions referred to in Footnote 2, supra, including the 8,000 unidentified Does referred to in that footnote. In their brief filed in the instant show cause proceeding Respondent litigants, in resisting the granting of the fifth prayer of the petition which involves action 15,588, frankly argue to us that: “Petitioners seek to prevent any trial of the merits of action No. 15,588, untried and unheard in .either trial or appellate courts, because in said action Respondent Association ‘ * * * reasserted claims previously made in [all of] its various pleadings in the consolidated actions * * * ’. The pleadings so referred to were those filed in 1946 and ordered dismissed by the Court of Appeals for failure to then [in 1946], exhaust administrative remedies. Action No. 15,-588 was filed seven years later in June, 1953.” (Emphasis ours.) As to this action, Respondent litigants further state in their brief that “it [the complaint] was amended in August, 1954, to utilize the express jurisdiction conferred on respondent District Court by the Housing Act of 1954.” In addition to this argument, Respondent litigants also assert in their brief that petitioners herein are presently defendants in two consolidated actions in the United States District Court (Nos. 5421-5678). These two actions were the ones instituted by the Mallonee group and Los Angeles Bank early in 1946, and this argument makes abundantly plain that Respondent litigants are aggressively contending that both of these original 1946 actions are still pending in the lower court for relitigation despite anything said in the above noted three opinions of this Court (and mandates thereon). During oral argument on petition of petitioners herein, counsel for Respondent litigants referred to (and later filed with us as an exhibit) a “joint reply” of plaintiffs and cross-claimants which was captioned and filed in the original Mallonee action 5421. This pleading was filed in the lower court on November 26, 1954. It was a reply to the opposition of petitioners herein to motions of Respondent litigants to amend their pleadings in that original action to show present jurisdiction of the lower court of action 5421 under the noted provisions of the Housing Act of 1954. In the complaint of Association in 15,-588 it denies (and attacks) the validity of the 1946 appointment of Ammann as Conservator of Association and the validity of the $7,000,000 loan made by San Francisco Bank to Association while Am-mann- was serving as its Conservator. Association also denies for itself, and on behalf of the original Mallonee litigants, all liability upon the debt owing to San Francisco Bank by Association. (This debt is the subject of the “note case,” 18,979.) The lower court also makes abundantly plain in its opinion in Mallonee v. Fahey, D.C., 117 F.Supp. 259, 275, that Association was then challenging the validity of the appointment of the Conservator back in 1946 by pointing out that Association is still asserting that the validity of this appointment “has not yet been, determined on the merits, either by administrative hearing or judicial proceedings in review thereof.” So much for Action No. 15,588. In addition to the various pleadings filed in the “note case” and in action No. 15,588, Association has, since the filing of the petition of petitioners herein, filed in the court below complaints in four new actions which we note at this point. (And see reference to these “new actions” in footnote 3.) A complaint (61 pages, plus exhibits) filed August 27, 1954, in new action 17,-133, which includes among the named defendants practically all the defendants in original Mallonee action 5421, and which alleges that it involves the same parties, issues and subject matter as action 5421. The complaint was for in-terpleader, quiet title and declaratory relief. On the same day Association filed notice of pendency of 8 other related cases. A complaint (62 pages, plus exhibits) filed August 31, 1954, in new action 17,-152, designated a complaint in inter-pleader and for declaratory relief re federal insurance of savings deposits and the $7,000,000 denied debt, and naming, among parties defendant, Home Loan Bank of San Francisco, Home Loan Bank of Portland, Home Loan Bank of Los Angeles, Utley as Receiver, Calverley as Receiver, and all parties heretofore designated as official defendants. This complaint attacks the status of San Francisco Bank, the validity of Ammann’s appointment and the loan by this Bank to Association (the subject of the note case). A complaint (82 pages) filed August 31,1954 in new action No. 17,153 naming the same defendants as those above noted in action No. 17,152 and seeking inter-pleader, declaratory relief and injunc-tive relief and money for attorneys’ fees to defend against foreclosure (in the “note case”), seizure and confiscation of Long Beach Association. The complaint in this action attacks the order of the Federal Home Loan Bank Board appointing a conservator for Association back in 1946, and the declaratory relief it seeks is based on the claims made in the original consolidated actions of 1946 (No. 5421, Mallonee case, and No. 5678, Los Angeles action) and also on all liti'gation then pending (including No. 13,-979). A complaint filed August 31, 1954 in new action 17,154 (naming the defendants as those noted in action 17,152) purportedly brought under the Housing Act of 1954, and seeking return of collateral now in the Registry of the Court, an accounting, cancellation of San Francisco Bank notes, and to quiet title to plaintiff’s money. This action also seeks judicial review and nullification of all administrative orders of the Home Loan Bank Board (including “administration”), (1) appointing the conservator in 1946, (2) terminating his appointment in 1948, and (3) for the administrative hearing in 1949, which respondents enjoined, which injunction this Court reversed in appeal 12,511 (196 F.2d 336). The complaint (122 pages) also demands money damages and the “enforcement” of all judgments and orders from which no specific appeal has been taken and made in 5421 (Mallonee action), 5678 (Los Angeles action), 7989 (Newendorp action), 13,953 (receiver action) and 13,-979 (note case), and for attorneys’ fees and other relief. On the date of filing this complaint Association also filed notice of pending of five other “related cases” (referring to consolidated cases, note case, receiver’s dismissed action— 13,953 — and action 15,588) upon which order for transfer of above noted cases 17,152, 17,153 and 17,154 was ordered. In each of these four additional actions (above noted) Association designated by name a veritable army of defendants, and in addition thereto joined as defendants 8,000 unidentified Does. As is true of so many of the pleadings in the various actions we have mentioned, the pleadings in these four actions are so lengthy and cover so many phases of the litigation that even an attempt at a summary could not be justified. We here note that two additional appeals to this Court growing out of note case 13,979 have recently been filed. They are numbered 14,632 and 14,587 on the docket of this Court. The record in No. 14,632 (filed January 20, 1955) has not yet been lodged with this Court. The record in No. 14,587 has been lodged but is so enormous as to forbid an attempt to summarize the issues tendered on that appeal. They involve many parties to the litigation. In addition to the pleadings filed in the note case and in action 15,588, Respondent litigants have, since the filing of the petition of petitioners herein, filed in the lower court additional motions, pleadings and actions as follows: In Action 5678 (the Los Angeles action) the lower court entered an order on July 22, 1954 in which it ordered and adjudged that this action was severed from Action 5421 and was no longer consolidated with 5421. It further ordered and adjudged therein that Action 5678 “shall be, and it is hereby dismissed for lack of jurisdiction * * Thereafter, and on or about August 2, 1954, a motion was filed by First Federal Savings and Loan Association of Wilmington, Association and First Federal Savings and Loan Association of Bell-flower for partial new trial in 5678 and to set aside the dismissal of Los Angeles action No. 5678 under the aforesaid order of dismissal dated July 22, 1954. This motion was noticed for hearing October, 1954. On November 12, 1954 the lower court entered an order which, inter alia, denied the aforesaid motion for parital new trial and to set aside the order dismissing the Los Angeles action. The Los Angeles action thus stands dismissed by the order of July 22, 1954. Reference is made to this adjudication of dismissal of the Los Angeles action by reason of the prayer (paragraph 1) in the petition before us for an order of this Court dismissing this action. Such action by this Court is no longer necessary. In original Mallonee action 5421, a motion was filed August 30, 1954, for leave to amend to state jurisdiction. This motion seeks to replead and relitigate the third party complaint and cross-claims of Association and collaborating parties which were ordered dismissed by paragraph 2 of this Court’s mandate of May 21, 1953. It was noticed for hearing November 29, 1954. In original Mallonee action 5421, a complaint and application for declaratory judgment, injunction, and other relief was filed on August 30, 1954. This complaint was purportedly filed under the Housing Act of 1954 and incorporates by reference all the pleadings heretofore filed by Respondent parties in original action 5421, including specifically the prayers for relief contained in all such pleadings. In action 15,588 an amended complaint was filed August 30, 1954, which is substantially the same in form, substance, and relief sought as the complaint filed on the same date in action 5421, noted in the paragraph above. The foregoing enumeration is far from a complete showing of the large number of recent actions and proceedings in this now hopelessly tangled web of litigation, but it serves to indicate the clear and inevitable course the litigation is taking. The large number of collaborating Respondent litigants have been and are continuing to introduce into the stream of the litigation a veritable flood of-pleadings in new actions wherein they stoutly reassert contentions advanced by them in the earliest stage of the controversy. The great length and repetitious nature of these pleadings has become a marked characteristic of the litigation in its present form. As we pointed out (footnote 3) Respondent litigants vigorously assert that they are entitled “to go ahead with what you [they] are attempting to do,” and further, that they are entitled to “proceed with any affirmative action that they thought they should have in the proper jurisdiction.” These are frank avowals and leave nothing to guesswork as to what they are now doing, and what they intend to continue doing in further complicating litigation which started in 1946. Our comments on action 15,588 in its relationship to the issues present in every phase of this controversy emphasize a situation that can and will produce litigation extending over many years to come. If further doubt remained concerning the intention of Respondent litigants to continue litigating all of the issues posed in 1946, it was completely dissipated by a frank contention in their brief that “in action 5421 [the original Mallonee action] there are many other independent cross-actions, interpleaders and interventions, unaffected by the prior judgments or mandates.” Among these are a cross-claim in interpleader of George Turner; a complaint in intervention of John D. Willhoit; a cross-claim in interpleader of First Federal Savings and Loan Association of Bellflower; a complaint in intervention of Home Investment Company to clear titles to 174 homes by a deposit of $800,000 in court; and 50 additional home owners’ interpleader interventions depositing hundreds of thousands of dollars in court to clear titles to 480 homes. (See our later comment on a “disclaimer” by San Francisco Bank of any claims it might have against the real property here referred to in the two last noted interventions.) We have herein referred to the fact that in at least one of the “new actions” there is a prayer for declaratory relief as to all issues raised in the original “consolidated actions” and in the note action' the prayer for relief incorporates all the prayers for relief in all former pleadings in the consolidated actions. Thus the current complaints on their face tender as issues every issue passed on by this Court (and later before the Supreme Court on certiorari) in the “consolidated actions” covered by our opinions therein and by our mandate of May 21, 1953. Early in this opinion we adverted to the fact that beginning with October 12, 1953, the lower court commenced a series of hearings lasting eight days upon request for affirmative relief inconsistent with the opinions and mandate of this Court issued in the consolidated cases on May 21, 1953. An examination of the transcript covering the eight days of hearings (a copy of which is before us) will disclose that much of the time was there devoted to arguments that this Court erred in its mandate. If arguments of this character had any merit whatever they should have been (but were not) addressed to this Court. The district court’s opinion on mandate, reported in Mallonee v. Fahey, 117 F.Supp. 259, indicates that further delays would be encountered in the complete termination of the original “consolidated actions.” Such delays in fact occurred. It will be observed from an examination of the lower court’s said opinion (117 F.Supp. at page 266) that counsel for petitioners herein were criticized by the lower court and opposing counsel for seeking to have that court act with alleged undue haste in giving effect to our said mandate. On this page of its reported opinion the lower court makes note of the then enormous size of the record. The court there pointed out that at the time the mandate was offered for spreading there was still pending and undecided a petition for rehearing before the Supreme Court. (The petition for rehearing was denied by the Supreme Court on June 9, 1953, 345 U.S. 978, 73 S.Ct. 1120, 97 L.Ed. 1393 and the lower court indicates that this fact was not brought to its attention until some time later.) Several times the suggestion was made that no harm would be done by delaying entry of orders on our mandate to permit further hearings and consideration of collateral matters. (117 F.Supp. at pages 272, 278.) Incidentally it will be noted from the lower court's opinion (at page 270) that the court entertained no doubt concerning its duty in connection with the mandate. It frankly states that the duty of the court was to carry out the mandate “without attempting to question the correctness of either the appellate court’s opinion or decision or the correctness of the mandate.” It held that the duty of the lower court was to recognize the mandate as completely controlling as to all matters within its compass. It went on to state, however, that on remand the trial court is free to pass upon any issue which was not expressly or impliedly disposed of- on appeal. As to the duty of the lower court to consider and give due weight to the holdings in the opinions of this Court, we refer to the views it expressed in reference to such holdings. In its opinion in Mallonee v. Fahey, 117 F.Supp. 259, 266, the court adverted to its lack of opportunity “to again read and study the opinions of the Appellate Court and in light of them endeavor to make sueh orders as in conformity with them and according to right and justice and the laws of the United States ought to be had * * And again at page 270 of this opinion the lower court stated: “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.” And again at page 273, the lower court stated: “As indicated, the opinion of the appellate court was carefully prepared and likewise the mandate.” On the same page of the opinion it refers to “certain occasional phrases in the opinion in 12511” respecting lack of jurisdiction of action 5421 (Mallonee case). Again at page 275 of the opinion the lower court stated: “I therefore conclude that from the two opinions and the mandate [consolidated mandate of May 21, 1953] that the appellate court did not intend that action 5421 should be dismissed.” (The emphasis in these quotations is ours.) At a later point in the opinion we shall refer to specific holdings set out in the opinions of this Court which the lower court is here discussing. The Basic Issues At the hearing on the instant petition the fundamental issues for consideration were given a thorough airing and clearly delineated by argument and by references of counsel to pertinent parts of this complicated record. As we understand the argument of Respondent litigants it is that our opinions and decisions failed to decide any of the vital and material issues in the entire litigation, and that they have a right to prolong all aspects of the litigation by relying on their pleadings in the original Mallonee action, with amendments to show jurisdiction under the Housing Act of 1954, and upon the allegations in the pleadings in the “new actions” we have noted, with jurisdiction also resting on the cited language of the said Housing Act. On this theory there must be complete relitigation of all of the issues present during and since the early stages of the entire controversy (including the issues in the Los Angeles action and the issues disposed of in our O’Melveny & Myers opinion). Two basic contentions are wrapped up in this theory, and briefly stated they are (1) that our Mallonee opinion really decided nothing except a jurisdictional point coupled with a requirement as to exhaustion of tendered administrative remedies, (see footnote 3) and (2) that certain specified language in the Housing Act of 1954 (see footnote 6) “amend or repeal the basic sections of the Home Loan Bank law upon which the petition for writ, and all prior opinions of the Court of Appeals were founded.” Grounding their ease firmly on this postulate these litigants assert that the cited provisions of this Act have “made all issues of Petition for Mandamus, Injunction, etc., Moot”; that the Act “is immediately applicable to these pending writ proceedings, and to all pending litigation in the District Court- * * * [that] timely motions for new trial and motions to amend pleadings to show jurisdiction, based, among other grounds, upon the Housing Act, are pending, and yet undecided before the District Court. Also new actions, filed after [its] enactment, and under [its] express terms are in customary process of coming before the trial court for hearing.” (Emphasis ours.) In oral argument counsel also urged that “the new actions” are filed under, and with “express reliance on, the said Housing Act.” As to the legal effect of the Congressional language in the Housing Act of 1954, it was urged that it is our duty to agree with his conclusions because “I think this [Section 818 (see footnote 6)] is the most sweeping general application language that could be incorporated into a considered Act of Congress.” (Emphasis ours.) In a brief filed by Respondent litigants they argue that the “remedial curative” language of the amendment relied on “was enacted [among other reasons] to remedy the glaring defects in statutory law disclosed by the Court of Appeals opinions * * * [and petitioners] persist in their attempts to enforce the now repealed statutes” by demanding mandamus and injunction to prevent the District Court from hearing amendments to pending actions, including “new actions” commenced in August, 1954 under the “original jurisdiction” and under rights conferred in the Housing Act. Thus a “new situation” exists which must be considered by the District Court, and enjoining respondents would “subvert the spirit of the three prior opinions” of this Court. They further urged that “all these [above noted] occurrences since the filing of said petition for writs, renders consideration thereof now, wholly inappropriate; [that] the Court of Appeals will be faced with complicated issues of fact requiring weeks of testimony, and with application of entirely new law * * * to facts and pleadings subsequent to the record on prior appeals which closed four years ago [June 1950].” (Emphasis ours.) Upon the basis of the argument just above noted we are urged to hold that the specific language used in the Housing Act which Housing Act amended the Home Loan Bank law, makes the Bank law (as so amended) retroactive in character and effect and thus applicable to every phase and period of the long litigation with which we here deal despite the fact that the vital issues in this litigation have been the subject of many past decisions of this Court and of the Supreme Court. It is urged that this amending language clearly reveals a Congressional intent and purpose to declare by statute that all of the original actions in this extensive litigation must now be regarded as “still pending” in the lower court, hence all of the vital issues posed therein since the inception of the litigation must be relitigated and/or adjudicated in the lower court. Upon this assumption it is argued that we should not enjoin the exercise of the (therein) “expressly conferred jurisdiction” of the lower court to now decide all of these “pending cases” on the merits. We think that our appraisal fairly summarizes the basic issues as reflected in the arguments of Respondent litigants. All of the foregoing arguments of litigants would seem to be predicated upon the assumption (and burdened with its necessary corollary) that the cited language in the Housing Act swept into the discard the principle of res judicata which from time immemorial has attached to decisional holdings in opinions of federal courts on questions of law and fact. But counsel for Respondent litigants will not take that advanced position and on this point carefully narrows his argument. As to this problem he was asked from the bench if he thought Congress “tried to set aside the final judgment of the Court of Appeals” to which he answered “of course not, but the final judgment * * * only went to jurisdiction. They didn’t go to merits.” Because of its importance we recur to this matter at a later point. (And see other aspects of the same argument in footnote 3.) The argument of litigants concerning our duty to retroactively apply the specific language here in question meets a challenge in the fact that nowhere in this language is found even a vague reference to a decision of any court which is to be affected by the language. But we are told in a very frank argument that Congress was purposefully trying to blot out the effect of the several decisions of courts dealing with this litigation. No explanation or argument has been tendered as to why this legislative language made no mention of this long controversy and the court decisions affecting it. In discussing the argument concerning retroactive effect of the cited language, counsel for petitioners herein (in asking for a double remedy, injunction and mandamus) argued that the mere fact that this amendatory language prescribes that the Home Loan Bank Board is now made a suable entity affords no basis for permitting Association to re-litigate every phase of this litigation. He pointed out that our decisions holding the lower court to be without jurisdiction were not based on the fact that the Bank Board was not a suable entity; that our opinions were much more basic in that we held that the district court lacked jurisdiction of the subject matter of the actions; that now giving one of the defendants in the original actions (Bank Board) capacity to sue (which it did not previously have) certainly does not cure the basic defect in the district court’s lack of jurisdiction of the subject matter in the original actions. He pointed out that the cited amendments to the Home Loan Bank law put in additional provisions with respect to the appointment of conservators by the Board and provided in substance that (now) the Board may not appoint a conservator of Federal Savings and Loan Associations except after notice and hearing, in accordance with the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., subject to judicial review as provided in that Act. He argued that it is “perfectly obvious” that the amending language here relied on by litigants deals with any future appointments of conservators which the Home Loan Bank Board may desire to make and certainly does not even purport to deal with the appointment of a conservator nine years before this amendment was passed and some seven years after the conservator went out of office, all of which emphasizes the obvious purpose of the amendment to “incorporate a new procedure which the Bank Board must [now] follow.” In short, his stated position