Where the district judge in whose court the case was originally
filed adopts as his own a three-judge court's determination that
the claim was not "one which must be heard by a three-judge court"
and that the relief sought was not warranted, an appeal lies to the
Court of Appeals and not to this Court, and therefore the judgment
is vacated and remanded to permit entry of a fresh decree from
which a timely appeal may be taken to the Court of Appeal.
285 F. Supp. 85, vacated and remanded.
PER CURIAM.
A three-judge federal court, convened pursuant to 28 U.S.C.
§ 2281, determined that plaintiff's claim was not "one which
must be heard by a three-judge court." 285 F. Supp. 85, 87. It also
ruled that the relief sought by plaintiff was not warranted. The
district judge in whose court the case was originally filed adopted
the action of the court as his own. The resulting situation is
similar, we think, to that which results when a single judge
declines to convene a three-judge court and denies relief: an
appeal lies to the appropriate United States Court of Appeals, and
not to this Court.
Schackman v. Arnebergh, 387 U.
S. 427. It does not appear from the record that a
protective appeal was lodged in the Court of Appeals, and the time
to do so may have expired. Therefore, we vacate the judgment below
and remand the case to the District Court so that it may enter a
fresh decree from which a timely appeal may be taken to the Court
of Appeals.
Utility Comm'n v. Pennsylvania R. Co.,
382 U. S. 281,2
382 U. S.
82.
It is so ordered.