# Petition — Richardson v. Communications Workers of America > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2382%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 429 U.S. 824 ## Text IN THE i Supreme Court of the United Stared’ nee Ru ’ October Term, 1975 a a No. MD -16 7 ] DALE C. RICHARDSON, Petitioner, vs. COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, AND LOCAL 7495, COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT EDWARD F. FOGARTY DAN J. WHITESIDE 700 Service Life Building 1339 Navarro Place Orange, California 92669 Omaha, Nebraska 68102 714 - 997-5236 402 - 341-333 REX H. REED EDITH D. HAKOLA 8316 Arlington Blvd., Suite 600 Fairfax, Virginia 22030 703 - 573-7010 Attorneys for Dale C. Richardson See Se DearrStandefer, 326% Main St., Huntington Beach, Ca. 92648 - 714 - 536-7161 | | + =, mmm *lee. aarres S: ‘ourt, U. & ry i TOPICAL INDEX Dale C. Richardson petitions for ED oa Wie ae UN oe CO ees ove ews owe Questions Presented for Review .............. Statutory Provisions Involved ................ ee a eed bee aks ree Perry Eee roe I The Court of Appeals erred by refusing to require computation of the attorney fee in accordance with requisite standards, by refusing to review the amount of the award, by holding that expenses were recoverable only by challenge to the clerk’s taxing of costs, and by approving the award of third trial costs against the petitioner .......... ee eS ee ees os eb ee 6 1. Failure to show fee computation was an abuse of discretion ...... 2. The fee award must represent the reasonable value of the services ES? ee a eee 3. Recovery of compensatory dam- ages and payment of a contingent fee from the award does not justify awarding a fee smaller than the reasonable value of the attorney’s Pt aAbsekisacdebewansaeeee a a cae 12 15 17 ii | iii TOPICAL INDEX | TABLE OF AUTHORITIES CITED Argument I (cont'd) Page Cases BOD GUMRO GD oc cccccccccctece 18 Alcorn v. Anbro Engineering, Inc., | 2 Cal. 3d 493, 86 Cal. Rptr. 88, 1. Denial of expense award ........ 18 | er re ee C. The award of costs against petitioner .. 22 Bankers Life & Casualty Company v. Kirtley, 307 F.2d 418 (8th Cir. 1962) ............ I! The Court of Appeals erred by approving a jury instruction that acts of members Brewer v. Uniroyal, Inc., 498 F.2d 973 did not bind the unions without author- SG [65640 68us se eeueceese. 307 U.S. 161 (1939), noted (footnote 2, page 166) that allowance of costs “as between solicitor and client” had been held within the authority of the federal courts, and also noted at pages 165-166 that costs “‘as between solicitor and client”’ included “‘as much of the entire expenses of the litigation of one of the parties as fair justice to the other party will permit.” “Court costs not subsumed under federal statu- tory provisions normally granting such costs against the adverse party . . . are to be included in the concept of attorney’s fees.” Fairley v. Patterson, 493 F.2d 598, 606, n. 11 (Sth Cir. 1974). “. . . [T] hey [courts of equity] have awarded litigation expenses, including reasonable attorneys’ fees, tu the prevailing party.”” McClure v. Born Chemical Co., 292 F.2d 824, 835 (3rd Cir. 1961). “In Trustees v. Greenough, 105 U.S. 527, 26 L. Ed. 1157 (1881), an order awarding a plaintiff counsel fees and expenses . . . was held to be ‘a final decree,’ because * . . . the inquiry was a collateral one, having distinct and independent character . . . ’.” Cinerama, Inc. v. Sweet Music, S.A., 482 F.2d 66, 70, n. 2 (2d Cir. 1973). Kiser v. Huge, 517 F.2d 1237, 1253 (D.C. Cir. 1974), dealt with and affirmed a District Court award of both expenses and attorney fees. Kerr v. Screen Extras Guild, Inc., supra, 526 F.2d 67, 69-70 (9th Cir. 1975), involved a remand to determine whether Kerr was “entitled to recover litigation expenses, including reasonable attorney’s fees.” “In their petitions . . plaintiff's attorneys . . [for] attorneys’ fees .. . . . [included a request for] reimburse- ‘ nl an ment for out-of-pocket expenses of $4,595.11, not covered by the earlier award of taxable costs .. . . [The District Court awarded the claimed expenses and there was no appeal from that portion of the award].” Swanson v. American Consumer Industries, Inc., supra, 517 F.2d 555, 561 (7th Cir. 1975). “Moreover, the Court appears to have ignored the application for costs in the amount of $3,941.57.” Miller v. Mackey International, Inc., supra, 515 F.2d 241, 242, n. 1 (Sth Cir. 1975). Some of the Court of Appeals errors are not apparent from the face of the decision. Its erroneous posi- tion, however, in its footnote 10 (A13) creates a new procedure for claiming expenses in “solicitor and client costs,” thus splitting the expense and fee claims, and de- manding that expenses be claimed by challenge to the clerk’s taxing of costs—a taxing which frequently occurs long before the expenditures are complete. This requirement puts the Eighth Circuit in conflict with all other circuits which have dealt with the matter. Apart from the split in the circuits thereby created, such an odd and unusual and unnecessary requirement should be dealt with by this Court in the exer- cise of its supervisory powers. No case has been found where recovery of some sizeable fee or expense to which a party may be entitled has been completely barred because of some failure to meet some time schedule during the normal course of the litiga- tion. Petitioner’s counsel vigorously rejects any contention that he was required to claim expenses by challenging the clerk’s taxing of costs. However, if he was so required, it would have been appropriate to afford him another oppor- Dn tunity to obtain the relief to which he was entitled, rather than dismissing such a sizeable claim on a basis not theretofore found in any case, statute, or rule, especially since there was no showing of any prejudice to the unions or the court. “. . . [T]he time required [for filing a motion for review of a cost bill] is not jurisdictional and the court may entertain a tardy motion for review.”” 6 Moore’s Federal Practice, 54.77[9] . page 1755. “. . . [A] petition for reimbursement of costs as between solicitor and client may be treated as a proceed- ing supplementary to the main proceeding that created the fund.” 6 Moore’s Federal Practice, 54.77[9], page 1756. C. The award of costs against petitioner. In a case which has gone on as long as this one, it is easy to forget how it was that the third trial came about. The District Court in the first trial struck the mental anguish claim from the complaint. In an excellent opinion (A46), holding that damages for mental anguish could be recoverable in a § 301 case, the Eighth Circuit authorized the plaintiff to amend his complaint to state a claim for damages for mental anguish against the unions. The complaint was amended, the second trial was had, and the jury made an award of $250,000 damages on the claim. The District Court ordered a new trial. The plaintiff- petitioner tried an appeal and a petition for mandamus and a petition for certiorari, in efforts to avoid the third trial, but was unsuccessful. The only settlement offer ever made by the unions was one for $5,000 made before the second = = trial. Thus, petitioner had no choice but to go to trial for a third time. Given the outcome of that trial and the deficiencies in it which were shown to the Court of Appeals, not to have taken an appeal would have been unthinkable to any lawyer. Yet, the Court of Appeals has displayed some impatience with the case. The first words spoken were as petitioner’s counsel stood to open his argument, when the Court said to him, “I’m wondering whether there will ever be an end to this litigation.” It was an abuse of discretion to award third trial costs against the plaintiff. The first jury, the second jury, the District Court, and the Court of Appeals all found bad faith on the part of the unions, a breach of the unions’ fiduciary duty of fair representation, by procuring the plaintiff's discharge. When a plaintiff such as here has becn literally forced to litigate in an effort to obtain his rights, should the “bad faith” unions recover their costs against him? “The purpose of the award [of fees and costs] , the Court emphasized, was to encourage people to seek judicial redress of unlawful discrimination.” Tillman v. Wheaton- Haven Recreation Assn., Inc., supra, 517 F.2d | 141, 1148 (4th Cir. 1975). “. . . [TJo bar allowance of attorneys’ fees .. . would deter private suits challenging suspect interpretations of Title VII.” Rosenfeld v. Southern Pacific Company, supra, 519 F.2d 527, 529-530 (9th Cir. 1975). Small coal operators who prevailed on only one of their two claims against the United Mine Workers and some large coal operators were the prevailing parties and were entitled to their costs. Lewis v. Pennington, 400 F.2d 806, 820 (6th —24—- x= Cir. 1968). : It seems incongruous and contrary to the equitable principles which underlie fee awards to first split up the plaintiff's claims, then to award him an attorney fee based on the bad faith of his opponents, then to award third trial costs against him to his “bad faith” opponents. shall not be controlling.” It was within the District Court's discretion to order ; Petitioner’s counsel specifically excepted to the instruc- each party to bear its own costs or even to find that peti- tion (A99). tioner was the prevailing party in the action as such and award him costs. In any event, the Court of Appeals erred in approving the District Court’s abuse of discretion in order- whether any person is acting as an ‘agent’ of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified ab adhe At this point, a brief factual summary may be in order. The facts shown at all three tnals were substantially the same, and are well-summarized by the Court of Appeals in footnote ing petitioner to pay the unions’ third trial costs. 12 (A62) of its decision at 443 F.2d 974 (Appendix “F”). After withdrawing from the uaion because of inability ul to get an accounting of the Local’s expenditure of some The Court Of Appeals Erred By Aeporing ae ~—y funds, petitioner and two other employees were subjected Instruction That Acts Of Members Did Not Bind daily to multiple mass demonstrations by union members, The Unions Without Authorization Or Ratification. stewards and officers. They were cursed, threatened, harassed, and tormented daily for almost seven months, in an attempt to A jury instruction (the entire charge to the jury is print- get them to strike one of their tormentors so that the Company ed in Appendix “H’) submitted by the unions was given to could fire them. Company officials turned their backs or the jury by the District Court (A92): watched with no attempt to stop the misconduct. “The members of the Defendant Local Union are Richardson’s wife was called a whore, a steward cleared not agents of the Defendant Local Union. The his throat and spat a gob of phlegm into Richardson’s face, actions of an individual member of the Defendant Richardson was pelted from behind with nuts and bolts and Local Union do not bind the Defendant Local < other thrown objects while sitting at his workbench, his work Union unless the Defendant Local Union either was sabotaged, his car was blocked in the Company parking eoegese as nated the — in question.” lot, and he was burned with a lighted cigarette. Such an instruction was diametrically opposed to § 301(e) The president of the defendant Local, one Harllee, was [29 U.S.C. 185(e) ], a subsection of the section under which one of the ringleaders. Minutes of Local meetings, some of suit was brought. That samewe anes | 7 which were altered between trials, showed President Harllee For the purposes of this section, in determining admonishing the members that the violence must stop. At Pets abe Othe tile i whee == the same time, a column written by President Harllee— published in a publication put out by the Local—con- demned the three nonmembers as leeches, inviting contri- butions to buy them a one-way ticket to Hell. After seven months of unsuccessful harassment. the unions “set up”’ the petitioner and the Company fired him. Officers of the Local on more than one occasion demanded of Company officials that petitioner be fired. The Inter- national sent a representative to a Local meeting where the topic of discussion was the penalty to be imposed upon those members not participating in a “wildcat” strike, a “spontaneous” protest of a suspension imposed on a member for tormenting petitioner. All union members, officers, and stewards at work that day, except one, participated in the strike. No union or Company witness in any of the trials denied the basic facts of the harassment. The only defense raised in each trial was that the harassment was by individ- uals and was not the work of the unions. In oral argument before the Court of Appeals, in response to the Court’s ques- tion, counsel for both sides agreed that the third trial verdict hinged on agency. Petitioner pointed out other deficiencies in the instruc- tions to the Court of Appeals, but he relies here on only one, the giving of the instruction in direct conflict with § 301(e). The Court of Appeals dismissed petitioner’s contentions con- cerning the instructions in a single paragraph (A9): “Piaintiff next complains that certain agency instructions were erroneous. The Court’s instructions with respect to the unions’ respon- sibility for the conduct of their officers, stewards, Pai haitie: ies Siiare .; = = and members were thorough, and in conform- ance with the ordinary doctrines of agency which were applicable. Gibbs, supra, 383 U.S. at 736; Wagner Electric Corp. v. Local 1104, Int'l. Union of Radio and Machine Workers, 496 F.2d 954 (8th Cir. 1974). Plairtiff’s ob- jections failed to take into consideration the ‘ instructions as a whole. We are satisfied from our examination of the instructions that no error was committed therein.”’ It is incomprehensible how the Court of Appeals could say that the instruction complained of was “in con- formance with the ordinary doctrines of agency,” and that it did not constitute error. United Mine Workers v. Gibbs, 383 U.S. 715 (1966), cited by the Court of Appeals, deals with & 6, Norris- LaGuardia Act [29 U.S.C. 8 106]. That section provides: “No officer or member of any association or organization participating or interested in a labor dispute, shall be held responsible or liable in any Court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or ratification of such acts after actual knowledge thereof.” The Gibbs decision not only does not support the Court of Appeals decision, it refutes it. Gibbs refers to the adoption of the Labor-Management Relations Act and to the provisions of § 301(e) as requiring that the responsibility of a union for the acts of its members and officers be measured by reference to ordinary doctrines of agency “rather than the more stringent x = standards of 8 6. The other case cited by the Court of Appeals in support of its holding on the instructions was its own Wagner Electric Corp. v. Local 1104, Int'l. Union of Radio and Machine Workers, 496 F.2d 954 (8th Cir. 1974). Petitioner is in wholehearted agreement with the holding of that case that (page 956) “‘a union is responsible for the actions of its officers and members according to the ordinary doctrines of agency.” The case gives no support whatsoever to a holding that the “‘auth- orized or ratified”’ instruction was in conformance with the ordinary doctrines of agency. “Vulcan reaffirmed the principle that no actual authority of agents is required for union responsibility as long as they are acting within the scope of their apparent authority.” United States Steel Corp. v. United Mine Workers of America, 519 F.2d 1249, 1253 (Sth Cir. 1975). After quoting § 301(e), Vulcan Materials Co. v. United Steelworkers of America, 430 F.2d 446, 457 (Sth Cir. 1970), states: “In other words, the act of a union agent committed within the scope of his general authority is binding upon the union regardless of whether it was specifically authorized or ratified.” “The jury was properly instructed that the Unions were responsible for the acts of their representatives only if the latter were engaged within the scope of their employment or authority, but that actual authorization of specific acts was unnecessary. 29 U.S.C.A. 8 185(e).”’ Lewis v. Benedict Coal Corporation, 259 F.2d 346, 352 (6th Cir. 1958). The jury received an instruction which was a gross mis- statement of the applicable law of agency. Even the sentence = = commencing the paragraph was prejudicially erroneous. It stated flatly: “The members of the Defendant Local Union are not agents of the Defendant Local Union.” How could a jury following that instruction possibly have returned a plaintiff's verdict based on the acts of members of the defendant Local? That sentence alone was the equi- valent of a directed verdict o1 .he non-agency of the mem- bers. The errors were not miner ones. They dealt with the gravamen of the issue on which the verdict hinged. The “authorized or ratified” portion was diametrically opposed to the statute. “Error in a specific instruction is not cured by general statements which set out the respective contentions... . Erroneous instructions in a jury trial are presumptively injur- ious and are grounds for reversal unless it affirmatively appears on the record that the error was harmless.” North- ern Pacific Railway v. Herman, 478 F.2d 1167, 1171 (9th Cir. 1973). “. . . [I] t is well settled that a reversal will be directed unless it appears beyond doubt that the error complained of did not and could not have prejudiced the rights of the party.” Vicksburg & Meridian Railroad Co. v. O'Brien, 119 US. 99, 103 (1886). “Since it does not affirmatively appear that the con- fusion in the minds of the jury which would naturally flow from the error in the charge did not in fact prejudice the appellant, the judgment must be reversed .... ” Plough v. Baltimore & O. R. Co., 172 F.2d 396, 398 (2d Cir. 1949), cert. denied, 337 U S. 940. —30-— “Defendant contends, however, it [an erroneous instruction] was harmless error since other parts of the charge stated the law correctly. We do not agree. The challenged statement was not equivocal or subject to differing interpretation which might be clarified by other portions of the charge. We cannot assume the jury disre- garded it. At best, it was likely to leave the jury highly confused, that alone being grounds for reversal. . . . The judge was in fact explaining to the jury precisely what plaintiff had to prove to recover. . . . An erroneous state- ment of the law at that point cannot be described as harm- less.’’ De Lima v. Trinidad Corporation, 302 F.2d 585, 587 (2d Cir. 1962). Where issues of agency and ratification were critical fact issues, and the court gave an erroneous charge to the jury on suci. » «es, it was determined that the error was not harmless aud a new trial would be granted. NMS Indus- tries, Inc. v. Premium Corp. of America, Inc., 451 F.2d 542 (Sth Cir. 1971). “. . . [T]he rule that instructions must be consid- ered as a whole is not applied to cure error by conflicting instructions.”’ Reid's Branson Instructions to Juries, Vol. I, § 138, page 393 (1960). “If an erroneous and a correct instruction are given on a material matter, a new trial must be granted. The jury does not know which one is correct and the court does not know which one the jury followed.” Reid’s Branson Instructions to Juries, Vol. 1, 1974 Cum. Supp., § 138, page 75. x = Il The District Court Abused Its Discretion In Order- ing A New Trial, And The Court Of Appeals Erred As To The Permissible Scope Of Review On Such An Order. A. New trial versus limited new trial or remittitur. The order for a new trial (A43) specified no miscon- duct or error, but found that the $250,000 verdict on the mental distress claim was so excessive that it must have been the result of “passion, prejudice, mistake, or some other improper reason” (A44). Although the unions’ motion was one for a remittitur, for judgment n.o.v. only upon refusal to remit and for a new trial only as an alternative to judg- ment n.o.v., the District Court ordered a new trial on its Own motion. Was not the unions’ motion a concession of the validity of the jury’s finding of liability? The decisions of the Eighth Circuit Court of Appeals permit an inference of passion or prejudice to be drawn from the size of the verdict alone. In Bankers Life & Casual- ty Company v. Kirtley, 307 F.2d 4 18, 426 (8th Cir. 1962), the Court upheld a finding that the verdict was the result of passion or prejudice and stated in so holding that“... . there is here no affirmative evidence other than the size of the exemplary damage award to indicate passion or preju- dice on the part of the jury.” In both Perry v. Bertsch, 441 F.2d 939 (8th Cir. 1971) and in Bankers, supra, the Eighth Circuit held that a verdict resulting from passion or prejudice does not bar a remittitur and does not necessarily require a new trial. These holdings =x, = are consistent with the widely quoted words of Judge Medina in Dagnello v. Long Island Railroad Company, 289 F.2d 797, 802 (2d Cir. 1961): “In some cases the very amount of the verdict is said to justify the inference that the verdict was brought about by passion or prejudice, al- though it seems to us that this is just another way of saying that the verdict is too high.” A complete new trial for an excessive verdict is required only where the verdict resulted from “appeals to passion or prejudice” (Minneapolis & Sault Ste. Marie Ry. v. Moquin, 283 U.S. 520, 521 (1931) ) and is not required where the passion or prejudice is merely inferred from the size of the verdict alone, as shown by Bankers and Perry, supra. Or is a complete new trial required where the defense post-trial motions do not request it? Since the District Court found no specific error nor any appeal to passion or prejudice, it was free to order a remittitur or a new trial limited to the issue of damages. The Court of Appeals contention that the liability and damages issues were so intertwined as to be inseparable (A7) was adopted from page 23 of the unions’ brief and is not supported by logic. Additionaiiy, that union position was first advanced on appeal and not in the District Court. The unions’ contention that damages for mental _ anguish are arrived at by determining a dollar value for the damage flowing from each act attributable to the unions, and then totaling all of such dollar values, is a sophism unsupported and unsupportable by any citation of authority. Liability and damages are not intertwined in a case involving deliberately induced mental anguish. et ee wee —33— A verdict of liability would be required if the jury found that the unions set out to deliberately induce mental anguish in the petitioner and that their efforts even slightly succeeded, irrespective of the dollar value of that damage. The jury would then find the damages attributable to the mental anguish caused by the unions. The evidence showed no other source of mental anguish. If the unions actually believed that the issues of liability and damages were so inextricably intertwined, should they not have submitted and should not the District Court have given instructions to the jury on how to handle such an “adding machine” type of damage calculation and on its complexities? No such instruction was even suggested. One might think from the “adding machine’ conten- tio.: that the unions defended by presenting evidence about how some specific individuals, and not the unions, were responsible for particular acts. Not so. They simply denied all responsibility for everything. It was a case for the jury of all or nothing. At the second trial (and at the third trial), the issue of liability was not even a close one. The unions’ only defense was one of nonagency. The evidence of agency was over- whelming. The only evidence of nonagency was that of self-serving exculpatory statements by the unions, condemned as ineffective by Riverton Coal Co. v. United Mine Workers of America, 453 F.2d 1035, 1042 (6th Cir. 1972), by Vulcan Materials Co. v. United Steelworkers of America, supra, 430 F.2d 446, 457 (Sth Cir. 1970), and by the Eighth Circuit in Wagner Electric Corp. v. Local 1104, International Union of Electrical, Radio and Machine Workers, supra, 496 F.2d 954, 956 (8th Cir. 1974). =x"= A common sense approach to the new trial issue is suggested in the following quotation from McCormick on Damages, § 19 at 80-81 (1935): “For passion produced by unfair tactics or argu- ment of the successful party, the threat of an unconditional new trial may well be the only effective preventive. In those cases, however, where the facts themselves are so appealing to the sympathies or prejudices of the average man that any jury is likely to render a swollen verdict, then, if the plaintiff's counsel has not by unfair methods whipped up the natural emotions of the jury, to require another trial seems question- able policy. In these cases, an opportunity to reduce the award as an alternative to a new trial might well be offered to the plaintiff wherever the trial judge is satisfied with the justness of the result on the question of liability. To insist that no verdict stand until the jury gives a verdict free of passion and prejudice both in respect to liabil- ity and in respect to amount is in these appealing cases to expect an impossibility.” Union counsel made much in the appeals briefs of an alleged “Golden Rule” argument made by petitioner's counsel. However, the trial judge, whose discretion the unions would uphold in every other respect, summarily overruled the objection, not even stopping the argument nor considering it as error. Since “passion or prejudice” inferred only from the size of the verdict cannot possibly infect the finding of liability, the District Court could have ordered either a remittitur (as =~ *S requested by the unions) or a new trial limited to the issue of damages. Its failure to do either constituted an abuse of discretion. B. The District Court misconstrued the nature of damages flowing from deliberately induced mental distress. The new trial order displayed a misconception of the nature of the mental distress damages authorized by the 1971 Court of Appeals decision. Out of the several varieties of such mental distress damages, that which was authorized was damages for the mental distress flowing from an intention- al wrong. Such damages contain elements not found in mental distress damages which flow from other sources. The law requires that negligently inflicted mental dis- tress be accompanied by physical injury in order to be com- pensable. The cases hold that changes in the nervous system which flow from mental distress are physical injuries. Alcorn v. Anbro Engineering, Inc., 2 Cal. 3d 493, 498, 86 Cal. Rptr. 88, 468 P.2d 216 (1970); Vanoni v. Western Airlines, 247 Cal. App. 2d 793, 796-797, 56 Cal. Rptr. 115 (1967); Emden v. Vitz, 88 Cal. App. 2d 313, 317, 198 P.2d 696 (1948). Vanoni, supra, held at pages 796-797 that ““ . . . a shock ‘to the nervous system is an injury to the body rather than to the mind.” Headnote 3 in Vanoni states: “The allegation in a complaint that plaintiffs suffered severe shock to their nerves and nervous systems alleges something more than emotional or mental suffering” (emphasis added). The mental! distress flowing from intentional wrongs is compensable without any necessity of physical injury or injury to the body. Restatement of the Law of Toris 2d, & 46, pp. 77- —36— 78; Prosser, Law of Torts (4th Ed. 1971) 8 12, page Sb. Even so, the District Court’s order for new trial finds (A44, A45) the verdict excessive and unsupported by the evidence because there was no showing that the emotional state caused was of a “permanent and lasting nature,’ because no “‘serious psychosomatic illnesses resulted,’ and because “‘the trauma caused, if any, was of a temporary duration.” As shown by Alcorn, Vanoni, and Emden, supra, “permanent and lasting” damage to the emotions, “‘serious psychosomatic illnesses,” and “‘trauma” other than temporary, as demanded by the District Court, are all physical injuries. Borrowing the language of the Vanoni headnote, the District Court was demanding “something more than emotional or mental suffering.” The “‘permanent”’ injury demanded by the District Court was an approach doubtless borrowed from the familiar rules in bodily injury cases that only permanent injuries will support a substantial damage award. The mental dis- tress damages in issue are compensation for the invasion of mental tranquility rather than for their visible long-term effects. Justice Traynor held in State Rubbish Collector's Association v. Siliznoff, 38 Cal. 2d 330, 338, 240 P.2d 282 (1952): “Greater proof that mental suffering occurred is found in the conduct designed to bring it about than in the physical injury that may or may not have resulted therefrom.” Since physical injury is not an element of the mental distress damages here in issue, the District Court’s new trial order applied an erroneous standard and constituted ee ee -_* an abuse of discretion. Application of the wrong legal standard is an error of law and an abuse of discretion in determining whether to grant a new trial. Williams v. Nichols, 266 F.2d 389, 392-393 (4th Cir. 1959). The petitioner’s briefs in the Court of Appeals, as well as his oral argument, dealt with the above issue at some length. His arguments in this respect were dismissed (A7, note 5) as “devoid of merit.” This refusal of the Court of Appeals to find an abuse of discretion in the District Court’s application of erroneous legal standards as to mental distress was error. C. Scope of appellate review of new trial order. “Review of a ruling on a motion for new trial on the ground of an excessive verdict is similar to the reviewability of the trial court’s ruling on a motion for new trial on the ground that the verdict is against the weight of the evidence. But the pressure for review is greater in the area of inadequacy and excessiveness, since only by review of the trial court’s ruling on the motion for new trial may the quantum of dam- ages, where the amount is in dispute, be tested in the appellate court.”” 6A Moore’s Federal Practice § 59.08[6], pages 59-170, 171 (2d Ed. 1974). There is a split between the circuits on the standards for review of an order for new trial for an excessive verdict. There is, in fact, a split within the Eighth Circuit itself. The earlies EBigiiin Circuit position, and that relied upon - *§ here (A6) was “ . . . we shall continue to consider review {of an order granting or denying a new trial for an excessive or inadequate verdict] , as we have said before, not routinely and in every case, but only in those rare situations where we are pressed to conclude that there is ‘plain injustice’ or a ‘monstrous’ or ‘shocking’ result.”” Solomon Dehydrating Co. v. Guyton, 294 F.2d 439, 447-448 (8th Cir. 1961). Then, in 1972, the Eighth Circuit adopted a new and different approach to the problem, which approach was urged by petitioner’s briefs as applicable here. The case was Fireman's Fund Insurance Co. v. Aalco Wrecking Co., Inc., 466 F.2d 179, 186-187 (8th Cir. 1972). The decision discus sed the scope of review by a Court of Appeals on an order for a new trial. Some of the pertinent holdings of Fireman's Fund are as set forth hereafter: that a grant of a new trial on the basis of instructions or rulings on evidence does not interfere with the jury’s role as the trier of fact; that courts may not re- weigh the evidence and set aside the verdict just because different inferences could have been drawn or because the judge felt that other results were more reasonable; that the Court of Appeals sk wuld exercise a closer degree of scrutiny and supervision to protect the right of jury trial before a new trial is ordered because the trial judge found the verdict contrary to the weight of the evidence; that to justify a new trial, the verdict must be against the great weight of the evi- dence; that otherwise, the jury’s role as trier of the facts would be destroyed and the trial judge would be enabled to disregard the jury’s verdict at will; that the ultimate issue on a motion for new trial is whether a miscarriage of justice occurred; and that a district court's new trial decision is ~39— always subject to review. Fireman’s Fund seemed to herald the advent of desperately needed new rules, different rules than Solomon's near-nonreviewability rule. Fireman's Fund’s “always sub- ject to review” is in direct conflict with Solomon's “not routinely and in every case.” As the Court’s latest expression on the subject of scope of review, the Fireman’s Fund decision should have been applied here and petitioner’s briefs urged its application. However, one would never learn from the Court of Appeals decision that Fireman's Fund had ever been handed down. For the Eighth Circuit to maintain two diametrically opposed rules, and to apply whichever of the two it chooses, is hardly consistent with the rule of law. Such procedure deserves the attention of this Court in the exercise of its supervisory powers. Leaning in the same direction as Fireman’s Fund, but still adopting somewhat different standards, is the decision of the District of Columbia Circuit in Taylor v. Washington Terminal Co., 409 F.2d 145, 148-149 (D.C. Cir. 1969), where it was held that review of a new trial order for an excessive verdict requires a Court of Appeals to weigh the trial judge’s first-hand observations of the evidence against the different evaluation of the facts by the constitutionally-designated fact- finders, the jury. The Taylor court held that the proper test to be applied by the District Court was whether the award was clearly within the maximum limit of a reasonable range. The Court also held that the verdict there was within such a range and reversed the order for a new trial. Both Taylor and Fireman's Fund cited and relied on Lind v. Schenley Industries, Inc., 278 F.2d 79 (3rd Cir. 1960), _40— cert. denied, 364 U.S. 385 (1960). Other recent cases which follow Taylor are: Brewer v. Uniroyal, Inc., 498 F.2d 973, 978 (6th Cir. 1974); Williams v. Steuart Motor Co., 494 F.2d 1074, 1085 (D.C. Cir. 1974); Manning v. Altec, Inc., 488 F.2d 127, 133 (6th Cir. 1973); and Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033, 1045-1047 (Sth Cir. 1970). The instant case draws into sharp focus the conflict be- tween the Solomon standards, the Fireman's Fund standards, and the Taylor standards, at least a three-way split, thus offer- ing an excellent vehicle for resolving the split among the circuits (and within the Eighth Circuit) on the standards for review of verdicts alleged to be either excessive or otherwise against the weight of the evidence. This Court is, of course, aware of the tumult in the legal profession over arbitrary grants of new trials at both the state and federal level. The California problem in this respect typifies the common prob- lem in all jurisdictions, and is discussed at length in Mercer vy. Perez, 68 Cal. 2d 104, 108-124, and in New Trial Orders; The Erosion of Code of Civil Procedure Section 657, 9 Santa Clara Lawyer 119 (1968). The near-absolute discretion which the Eighth Circuit and some other circuits permit the trial judge in new trial orders is nothing more nor less than deprivation of the right to trial by jury. The application here of Fireman's Fund or Taylor could have produced a reversal or modification of the order for a new trial. The Court of Appeals, however, followed Solomon and refused to review the order. Such refusal was error. The new trial order contained no findings of fact. It contained no specifications of error nor did it specify any SOLE ON EEE RAE et - ~th~— source for the jury’s alleged “‘passion, prejudice, mistake, or . . . other improper reason.” The order contained no review of the evidence, no findings as to what the weight of the evidence showed and, of course, could not and did not contain any showing that the verdict was against the great weight of the evidence, or that it represented a miscarriage of justice. It contained no finding of a maximum range or that the verdict was outside a maximum range. The order made no reference to the outrageous union conduct which was calculated to bring about mental anguish in the petitioner. These findings and references were required under the cases which have been discussed, and the condonation by the Court of Appeals of their absence constituted error. CONCLUSION The three points made in this petition, the first of which contains several subpoints, form a pattern: the Court of Appeals has refused to enforce the normal rules of law which it applies in other cases. It permitted the District Court to make an arbitrary fee award without any showing of how the figure was reached. It sustained the District Court’s complete silence on a substantial claim for expenses, a claim to which the unions raised no defense in the District Court. It ratified an award to the “bad faith” union of its third trial costs against the petitioner. It approved an instruc- tion requiring union authorization or ratification of a mem- ber’s acts as one in conformance with the ordinary doctrines of agency. It approved the District Court’s use of an erroneous measure of damages for mental distress. It avoided any men- tion of its own iater pronouncement on review of new trial = orders, referring instead to an earlier and inferentially- overruled doctrine more favorable to an affirmance of the District Court. Why has the Court of Appeals gone out of its way to affirm the District Court’s multiple arbitrary postiions? When the District Court’s dismissal of the mental anguish claim was reversed, it achieved the same result as before by granting a new trial on the second trial verdict and by grossly misinstructing the jury in the third trial. The District Court obviously felt that damages for mental anguish were inappropriate and took steps to see that none were paid. If these arbitrary acts are truly unreachable, then the right to trial by jury is only an illusion. Did the Court of Appeals decide that the petitioner had “received enough” by way of the damages he had col- lected on the first claim? Such a position would be hardly consistent with the judicial duty to avoid prejudice by extraneous and irrelevant matters. Juries are not permitted to learn of such dispositions of other claims, and it has never been thought necessary to conceal such from appeals court judges. Did the Court of Appeals grow impatient with the long- continued litigation? If so, why not terminate it earlier in some of the multiple opportunities extended? The snail’s pace of the case was not attributable to the petitioner. The only delay he ever sought was a one-month delay of the second trial, and that request was denied by the District Court in a decision sternly emphasizing the need for speedy disposi- tions of matters in the federal courts! That decision made no reference to the two-year span between complaint and first trial, or the delay of over thirteen months in entering judgment eee «(3 after the first trial. From that decision one would not have anticipated that the District Court would take five months to act on the unions’ motion for remittitur after the second trial, nor the entry of judgment one year to the day after the third trial verdict. Petitioner once, to no avail, asked the Court of Appeals to assign the case to another District J udge. Would the weariness of a Court of Appeals with the District Court’s overdeliberate pace entitle it to terminate the suit on a basis other than the merits, in disregard of the rights of one of the parties? Was the unusual position on the expense claim due to some fear that any expense award would go to reimburse the National Right to Work Legal Defense and Education Foundation, Inc.? The District Court, throughout the three trials and the fee hearings, has displayed (on the record) a great deal of interest in the role of that organization in the case. Petitioner’s undersigned counsel. on every such occasion , has unhesitantly taken the oppo:tunity to describe the relation- ship between the petitioner and the Foundation. The peti- tioner has personally contributed about $1,250 of the total expenditures. The Foundation has made advances since 1967, as requested by undersigned counsel who initiated the first contact, for necessary expenses (no attorney fees) in an amount of over $11,000, and has never in any way attempted to influence the handling of the case. The petitioner could not have litigated even through the first trial without the Foundation’s help. Without the assis- tance of such an organization, an individual worker is at the mercy of powerful employers and unions, powerless to enforce the federal labor laws purportedly enacted for his benefit. —44— The petitioner’s right to demand the compliance of the unions with their fiduciary duty of fair represen- tation is a civil right. It is not necessary to go as far as Collum v. Butler, 288 F. Supp. 918, 919 (N.D. Ill. 1968), affirmed 421 F.2d 1257 (7th Cir. 1970), in demanding extra consideration for the verdict (as opposed to the judge’s views on a motion for new trial) in a civil rights case. It is only demanded that the petitioner be judged by impartial application of the same rules as in other cases. Some of the deficiencies in the Court of Appeals decision are couched in language which does not reveal the full import of the ruling. One who had not read the District Court memorandum or the briefs would not realize that the Court of Appeals had approved a failure of the District Court to show how the fee was computed. Nor would a reader of the opinion realize that the Court of Appeals was approving the “authorized or ratified” instruction as one within the ordinary doctrines of agency. If fee computations truly need not be shown, and if the ordinary doctrines of agency have been broadened, the facts should be spelled out in the decision, so that it may stand as precedent for those points. The decision, however, does contain two visible errors which will undoubtedly be cited as precedents: (1) Expenses above and beyond and outside the usual taxable costs, which expenses are included in the concept of “‘costs as between solicitor and client,” may be claimed only by challenging the clerk’s taxing of costs, and may not be sought in the same claim as the fee. (2) Where substantial compensatory damages are recovered, where a sizeable contingent fee is paid on ~45~ such a recovery, and where “bad faith” requires a fee award, the District Court may award a fee which represents less than the reasonable value of the legal services rendered. The two points specified above are in conflict with the decisions herein cited of other Courts of Appeals on similar issues. Both points present issues of importance under federal labor law. All of the issues raised in this petition involve a sanctioning by the Court of Appeals of departures so far from the accepted and usual course of judicial proceedings as to call for an exercise of this Court’s powers of supervision. All are issues of importance under federal labor law. Some, as specified, involve splits among the circuits. Because the decision deals with court-awarded fees in an arena where the individual worker is pitted against the union and the employer, it will be of particular interest to lawyers with an opportunity to represent individual workers in such cases. Whereas very few of such cases had been filed before the 1971 decision of the Court of Appeals, a substan- tial number have been filed and are pending across the nation since that decision was published (Appendix “F,”’ A46). Affidavits of labor law specialist Donald W. Jones, a Missouri attorney; of the distinguished Jonathan C. Gibson with his wide experience in labor law across the nation and across the years; of the well-known and widely-written Sylvester Petro, professor of labor law at New York Univer- sity and at Wake Forest—such affidavits having been filed with the District Court—point out the difficulty of the individual worker in finding competent counsel to represent him against his employer and the union. This Court of Appeals decision will constitute another obstacle in the path of the worker seeking effective representa- EE aiitivs | STATE OF CALIFORNIA ) ) ss. tion. It will stand for the principle that |awyers representing | County of Orange ) workers against labor unions face rules not applicable in | other cases involving the same issues. It will signal that such | I, the undersigned, say: I am and was at all times herein mentioned, a citizen a lawyer may end up donating a substantial portion of his | of the United States and employed in the County of Orange, State of California, time. The significance of the decision will not be lost on | a the age of eighteen years and not a party to the within action or proceeding; the legal profession. ie | | mamaria WHEREFORE, the petitioner prays that a writ of cer | CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE tiorari issue to review the judgment entered February 13, | EIGHTH CIRCUIT (DALE C. RICHARDSON vs. COMMUNICATIONS WORKERS 1976, petition for rehearing denied March 11, 1976, by OF AMERICA, AFL-CIO, LOCAL 7495, COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO) of the following named parties by depositing three copies thereof (to each party), enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Post Office in the City of Huntington Beach, Calif- the United States Court of Appeals for the Eighth Circuit. Respectfully submitted, ornia, addressed to said parties at the addresses as follows: ROBERT E. O’CONNOR J. PATRICK GREEN DAN J. WHITESIDE 1304 City National Bank Bldg. 707 City National Bank Bldg. 1339 Navarro Place Omaha, Nebraska 68102 Omaha, Nebraska 68102 Orange, California 92669 DAVID S. LATHROP 460 Continental Bldg. EDWARD F. FOGARTY Omaha, Nebraska 68102 700 Service Life Building Statens penalty of perjury that the f is true and Omaha, Nebraska 68102 en Executed on MAY | 71976, at HUNTINGTON BEACH, CALIFORNIA. REX H. REED | 7) EDITH D. HAKOLA | j QL. P 8316 Arlington Boulevard D. A. Standefer Suite 600 Fairfax, Virginia 22030 Attorneys for Dale C. Richardson. Dean-Standefer, 326% Main St., Huntington Beach, Ca. 92648 (714) 536-7161 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2382%3A1. Public record. Not legal advice.