Petition — In re Boston & Providence Railroad

. Supreme Court, U.& |W

a erie ;

JUL 2 1977 |

N\

ST ——— JR., CLERK

IN THE '

Supreme Court of the United States

October Term, 1977

aad W7-19

IN RE BOSTON & PROVIDENCE

RAILROAD CORPORATION,

Debtor,

ARMISTEAD B. ROOD,

Petitioner.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

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ARMISTEAD B. ROOD " | HUBERT H. MARGOLIES

3520 Thirty-Fifth Steet, NW. Room 633

Washington, D.C. 20016 Investment Building

(202) 363-7275 Washington, D.C. 20005

Petitioner (202) 347-9768

Attomey for Petitioner

July 2, 1977

THE CASILLAS PRESS, INC.-1717 K Street. N. W.—Washington, 0. C.-223-1220

(i)

INDEX

PETITION FOR A WRIT OF CERTIORARI .

OPINIONS BELOW .

PE 4<5 + 6 «<5» ss soe

QUESTION PRESENTED

CIVIL RULE 58

STATEMENT OF THE CASE .

Background

The district court’s 1976 osien

The shifting positions of the Court of Appeal ;

First position .

Second position .

Third position

Fourth position .

REASONS FOR GRANTING THE WRIT .

CONCLUSION

APPENDIX

District court order of June 24, 1976

Court of Appeals

Memorandum & order of November 5, 1976.

Order of December 10, 1976 :

Order of January 17, 1977 . . .4.

Order of February 2, 1977 .

Order of February 24, 1977 ate

Letter from the Clerk, March 2, 1977 .

Page

(ii)

Supreme Court order of June 20, 1977

(Brennan, J.) further extending time to file

petition for writ of certiorari

Letter from John R. Hally, Esq., June 19,

1974, in the district court record .

CITATIONS

Court decisions:

- Atchison, T. & S.F. Ry. v. Wichita Board of Trade,

412 US. 800, 807 .

Boston Mining Co. v. Montana Ore Co.,

188 U.S. 632, 638-639

Boston & Providence R. Corp., In Re (C.A. 1)

1970 appeal: 428 F.2d 159,162 . .

1974 appeal: 501 F.2d 545, 547-549 .

Brinckerhoff-Faris Trust & Savings Co. v. Hail,

281 U.S. 673, 677-681 aia?

Davis v. Wechsler,

263 U.S. 22, 24.

Lewis v. State of New York,

547 F.2d 24 (C.A. 2).

N.A.A.C.P. v. Alabama,

357 US. 449, 457-458

N.L.R.B. v. Wyman Gordon,

354 US. 759, 767 .

S.E.C. v. Chenery,

332 US. 194, 196 .

Page

10a

14

12

ae

17

14

17

14

14

(iii)

Page

United States v. Indrelunas,

411 U.S. 216, 220-222 10-11

LC.C.

Boston & Providence R. Corp. Reorganization,

Finance Docket 12131

Examiner Clerman’s report, Dec. 28, 1967,

mimeo sheet 41, sheets 23-32, 41-43 7

Federal court rules:

Civil Rule 54(b) . . 3,10, 18

Civil Rule 58 . 3,5, 10, 11,18

First Circuit Rule 12 . &

Statutes:

Bankruptcy Act, Section 77 (11 U.S.C. 205). 5

Judicial Code, Title 28, U.S.C.

Section 12541) . 2

aS a dee 18

Other:

Barzun, Jacques, Clio and the Doctors,

Univ. Chicago Press 1974, p. SO 15

Comisky, Marvin, Declare an End to Judicial Quotas,

36 Federal Bar Journal 30, 40 (Winter-Spring 1977) . . . 18

IN THE

Supreme Court of the United States

October Term, 1977

No.

IN RE BOSTON & PROVIDENCE

RAILROAD CORPORATION,

Debtor,

ARMISTEAD B. ROOD,

Petitioner.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Armistead Buckner Rood of Washington, D.C., respectfully

prays that a writ of certiorari issue to review a judgment of

the United States Court of Appeals for the First Circuit in

its docket No. 76-1370 captioned as above, which is em-

bodied in a series of five orders entered between November

5, 1976, and February 24, 1977, inclusive.

“~™

2

OPINIONS BELOW

The district court did not enter an opinion. The sum-

mary memoranda and orders of the Court of Appeals were

entered without a formal opinion. The order of the dis-

trict court and the memoranda and orders of the Court of

Appeals are all appended.

JURISDICTION

The judgment of the Court of Appeals is spread over

five serial summary memoranda and orders respectively

dated November 5 and December 10, 1976, and January

17, February 2, and February 24, 1977. The Court of

Appeals did not pass upon all of petitioner’s contentions

now in question until its order of February 24, 1977,

when it refused to consider his contentions of entrapment

and denial of procedural due process. (“‘Moreover, upon

review of the motion, no good reason appears .. .”’)

To avoid controversy over the time for a certiorari pe-

tition, the petitioner requested the Supreme Court to fix

(or extend, if it were deemed an extension) the time as

90 days from February 24 until May 25, which was done

by an order dated April 20. (No. A-861, Brennan, J.)

By order of May 18 (Brennan, J.) the time was extended

through June, 16. On June 16 the petitioner filed an ap-

plication for a further extension of time through July 24,

1977. By an order of June 20 (Brennan, J.) that applica-

tion was granted, without prejudice to the Court’s con-

sideration of whether the application of June 16 was filed

on time. That order is appended.

Jurisdiction of the Supreme Court to review the judg-

ment of the Court of Appeals rests on Title 28, U.S. Code,

Section 1254(1).

QUESTIONS PRESENTED

In 1976 a simple order instructing the court’s trustee

to distribute an expense fund to the junior claimant, not

mentioning the objectious thereto, was entered in the dis-

trict court. The petitioner, who held pending prior claims

against the fund, is one of five parties who appealed. The

Court of Appeals by order of November 5, 1976, dismissed

petitioner’s appeal summarily for lack of a substantial ques-

tion, on the ground that all claims for further allowances

from the fund were barred by a previous 1974 district

court judgment which should have been appealed. It is

not controverted that by agreement petitioner’s pending

claims lay in abeyance in the district court and that the

supposition of a 1974 judgment on his claims had no fac-

tual basis whatsoever.

(1) Thereafter, to sustain its summary dismissal, might

the Court of Appeals, after partly recanting (to allow fu-

ture adjudication of some inchoate claims against the fund)

persist (in its order of January 17, 1977) in summary dis-

missal by shifting to a second unargued ground, viz., that

petitioner, by not having appealed from the Jack of a judg-

ment (‘failure to allow his allegedly pending petitions’’)

had thereby waived his claims — in the face of Civil Rules

54(b) and 58?

(2) Upon its being shown that there was no previous

order of the district court upon petitioner’s claim from

which he could have appealed, might the Court of Ap-

peals then reaffirm its summary dismissal in an order of

February 2, reject the pleading making that showing, and

return it to petitioner, on the new stated grounds (a) that

petitioner had not anticipatorily made that showing pre-

vious to the first order of the Court of Appeals (dated

November 5, 1976), and (b) that no injustice was being

4

done — thus adhering to summary dismissal of the appeal

at the threshold on considerations in which fanciful un-

timeliness was still a major element?

(3) Did the Court’s summary dismissal adopted sua

sponte on grounds that were new and therefore unargued,

without allowing an opportunity to refuie them, coupled

with the Court’s initial seminal error of postulating the

existence of a fictitious appealable 1974 order (the error

which set the series of dismissal orders in motion), amount

to 2 deprivation of procedural due process [by requiring

petitioner to disabuse the Court of Appeals of all possible

misapprehensions before they couid possibly come to his

notice for correction], thus permitting rationalization of

a disposition reached on untenable grounds?

(4) Did the Court of Appeals issue summary judgment

without ascertaining what facts were established?

(5) Did the Court of Appeals, instead of setting a good

example, act unaccountably and irresponsibly and beneath

the standards exacted of administrative agencies upon judi-

cial review in baring their reasoning and the ultimate bases

of their dispositions?

«

(6) Did the procedures of the Court of Appeals satisfy

minimum procedural decencies? Or did they penalize and

afflict petitioner and visit forfeiture upon him for the

Court’s own mistakes in (a) first assuming that the appeal

couid be dismissed because he had not taken an appeal

from an imaginary 1974 order, rather than for any blame-

worthy conduct on his part, (b) then assuming that he

could have appealed from other orders which had not men-

tioned him (and to which he had no objection), and (c)

then concluding that no injustice had been done by the

surprising turn of events which dismissed his appeal because

5

he did not anticipatorily meet unforeseeable objections to

his appeal before the reasoning of even the very first order

of dismissal could have come to his consciousness?

CIVIL RULE 58

ENTRY OF JUDGMENT

. . . Every judgment shall be set forth on a sepa-

rate document. A judgment is effective only when

entered as provided in Rule 79(a)... .

STATEMENT OF THE CASE

The district court’s jurisdiction is grounded on Section

77 of the Bankruptcy Act (11 U.S.C. 205), which re-

formed and codified procedures for reorganization of rail-

road carriers in equity. But this petition does not ask

the Supreme Court to pass upon any question of railroad

reorganization law.

In April, 1976, the Penn Central Transportation Com-

pany trustees transferred their railroad system generally to

another railroad carrier known as Conrail. Simultaneously

a Penn Central attorney asked the district court to instruct

its B&P trustee to turn over the B&P reorganization ex-

pense fund to the Penn Central trustees.

Background

The Boston & Providence Railroad Corporation (B&P)

has one of the new-style railroad reorganization plans that

divide consummation into two stages, the first stage being

sale of the debtor’s transportation enterprise to another

carrier. Stage One was accomplished for B&P on April

20, 1971. At that time the B&P expense fund in ques-

tion was reserved for the payment of all allowances which

the district court shall finally have adjudicated for expenses

(including compensation) of

6

“services heretofore or hereafter rendered... in

connection with these proceedings or the Plan or

the execution of this [consummation] order’’.

Subject to the priority of all such B&P allowances (in

which the Interstate Commerce Commission is no longer

involved) the B&P plan allocates the residue of the fund

to Penn Central's trustees.

The major event in Stage One was the purchase of

B&P’s Boston & Providence Railroad (including accessory

properties lying within the crowded modern metropolitan

areas of Providence and Boston) and franchises by Penn

Central’s trustees as their new investment of 1971. The

Boston & Providence Railroad (which now forms the east

end of the so-called Northeast Corridor) had not been a

part of Penn Central Transportation Company’s estate in

reorganization.

That 1971 purchase, however, was subject to a reserved

equitable trust which petitioner had obtained for the bene-

fit of all B&P owners, consisting of an equitable charge

upon all B&P properties entitling B&P’s stockholders to

receive possible large proceeds of subsequent conversions

of B&P real estate to modern metropolitan uses (by sale,

condemnation, or lease) over a term of years.

Stage Two is the program to realize such proceeds for

the B&P stockholders from that equitable trust. The trust

and their interest (unless extended for extraordinary cir-

cumstances) will terminate at the end of 1978.

The B&P plan would not have been consummated with-

out the addition of Stage Two. Originally the plan speci-

fied purchase of B&P’s enterprise for a price that would

allow B&P’s stockholders $110 per share. Only the inde-

pendent Development Group of B&P stockholders (acting

\

“o

always for the henefit of all stockholders through peti-

tioner as the Group’s chief counsel) dared oppose. But

the 1.C.C. examiner indicated sympathy, and the Develop-

ment Group obtained the addition of Stage Two, which

so far has produced some $300 per share additional for

the B&P stockholders from the equitable trust.

From time to time Judge Ford (B&P’s late reorganiza-

tion judge) issued a call for petitions for interim allow-

ances from the estate for expenses of parties, including

compensation of counsel. Such allowances hold top prior-

/ Wy as administration claims. The latest call was made in

1971; the final call has yet to be made. Pursuant to the

1966 call petitioner filed an interim application for com-

pensation at barebones !evel, explicitly reserving his right

to apply later on for a supplemental allowance in the con-

tingent event that “‘the success factor” (large realizations

from the proposed B&P equitable trust) should materialize.

He received an allowance covering 452 weeks of work

spread over 12 years. The court approved the I.C.C. re-

port finding that but for the insistence of the Develop-

ment Group (acting through petitioner) the principle of

the B&P equitable trust would never have come into be-

ing — but with this caveat:

“The ultimate worth . . . cannot be measured at

this time.”

(In Re Boston & Providence R. Corp.. 428 F.2d 159, 162

(1970). Boston & Providence t. ~— ~p. Reorganization,

L.C.C. Finance Docket 12131, E: «.. er Clerman’s Report,

mimeo sheet 41 (1967). (See six: . 23-3° 41-43.)

In 1974 the district court had pending before it subse-

quent applications of this petitioner for allowances reflect-

ing the success factor (as shown by 1973 payments to the

8

stockholders cut of the equitable trust). A second expense

fund was reserved temporarily, from proceeds of a large re-

sale of B&P properties to the Commonwealth of Massachu-

setts. Petitioner sought to enjoin distribution of the sec-

ond fund pending the settlement of his claims by negotia-

tions with the Penn Central trustees (which seemed promis-

ing) or by adjudication. In allowing the second fund to

be distributed the Court of Appeals regarded petitioner’s

claims as lying primarily against the basic B&P expense

fund in question now. The Court recognized his claim

for the delayed success factor, subject to proof. /n Re

Boston & Providence R. Corp., 501 F.2d 545, 547-549

(1974). (Memorandum and order on rehearing, October

18, 1974.)

The district court’s 1976 action

On June 24, 1976, the district court instructed its trus-

tee to transfer the B&P expense fund to the Penn Central

trustees. Its simple order did not mention the objections.

Five parties appealed. The district judge stayed his instruc-

tion pending final disposition on appeal.

The shifting positions of the Court of Appeals

First position. The Penn Central trustees moved in the

Court of Appeals for summary affirmance, invoking the

First Circuit’s Rule 12 for quick disposition of appeals

that do not present a substantial question.

On November 5 the Court of Appeals promptly granted

the motion, without briefs or oral argument. It overruled

the contentions that there were prior pending and inchoate

claims against the fund by misreading the record, saying:

“The district court in September, 1974, directed

payment of final expenses out of the debtor’s

9

expense fund, and that order [sic] has never been

appealed. Since the time for appeal has long since

passed, this issue is not properly before us.”

Second position. On December 10 the Court withdrew

that statement and asked the Penn Central trustees (and

another party) to show why claims for services rendered

after June, 1971, may not still be adjudicated. On Janu-

ary 17, the Court’s third order reversed the district court’s

order. But it then went on to hold that this petitioner is

barred, not for failing to appeal from a 1974 judgment on

his claims — but because he had not appealed from a lack

of a judgment adjudicating his claims.

“Appellant Rood, having not appealed from the

district court’s failure to allow his allegedly pend-

ing petitions, has waived any claim to an allow-

ance for services rendered or expenses incurred

during this period.”

The Court stated that its reversal of the district court was

subject to a limitation that only services rendered after

June, 1971, were to be considered.

Thus the Court of Appeals, in an adaptation of Zeno’s

Paradox, by dividing the long project into two arbitrary

periods, before and after midnight June 30, 1971, so to

speak, sawed the patient in two:

Before June 30: Work done. Value deferred.

Uncompensable.

After June 30: Value produced. Work done pre-

viously. Uncompensable.

Petitioner then showed that there was never any adjudi-

cation of his pending petitions in the district court from

which he could have appealed. An attempted appeal would

have been hooted out of court.

10

True, in September, 1974, the district court had entered

some orders for some allowances to some other parties, but

its only 1974 action on the pending petitions of petitioner

Rood was agreed inaction. Without objection the district

court had filed a 1974 agreement of parties in the record

(the Halley letter, appended) for allowances to be made

to other parties while adjudication of this petitioner’s

claims was passed over.!

Petitioner showed that, in the face of Civil Rules 58 and

54(b), the district court could not possibly be deemed to

have adjudicated his pending petitions in 1974 or to have

terminated the proceeding (sub silentio or otherwise). Pe-

titioner showed this Court’s explanation of the absolute

command of revised Rule 58 (as stated supra) quoting Pro-

fessor Moore, and concluding thus:

“But whatever may be the appropriate sanctions

available in a particular case . . . we do not believe

that a case-by-case tailoring of the ‘separate docu-

ment’ provision in Rule 58 is one of them. That

provision is, as Professor Moore states, a ‘mechani-

cal change’ that must be mechanically applied in

order to avoid new uncertainties as to the date on

which a judgment is entered.

l in its third order (January 17) the Court of Appeals criticized

petitioner for not having appealed from district court awards to other

petitioners in September, 1974. But petitioner Rood had no reason

to appeal from those allowances.

His claims were different from the others. The other petitioning

lawyers attained their goal when the plan was put into effect in April,

1971. But petitioner Rood was primarily concerned with the realiza-

tion that might come to the B&P stockholders through successful ad-

ministration of Stage Two, in futuro. That has nearly quadrupled the

$110 goal which only the Development Group opposed.

We grant the petition for certiorari, reverse the

judgment of the Court of Appeals, and remand for

further proceedings consistent with this opinion.”

United States v. Indrelunas

411 U.S. 216, 229-222 (1973) (Per Curiam)

Petitioner suggested how the Court of Appeals might cor-

rect the error of its Second Position, thus:

“An appropriate procedure now would be to is-

sue a mandate directing entry of judgment on Mr.

Rood’s claims in conformity with Rule 58, either

allowing or disallowing. However, appellant still

maintains that the soundest solution is set forth

in Appellant’s Opposition to Summary Dismissal,

filed October 25, 1976, pages 20-22: referral to

a special master.”

Third position. Then the Court of Appeals shifted again.

Conceding arguendo that his pending petitions had not been

adjudicated and that petitioner could not have appealed in

1974 and therefore had not waived his claims by not then

appealing, the Court then invented a new reason for sum-

mary dismissal, stated in its fourth summary order, dated

February 2. The new reason was that the Court of Ap-

peals ought to impose forfeiture on petitioner as a mat-

ter of equitable discretion. However great such forfeiture

might be, it would be deemed necessarily fair because the

benighted petitioner had not anticipatorily saved the Court

from falling into the factual and legal errors of éhe Court’s

Position One and Position Two. Thus the Court (without

inquiring into the extent of the injury) justified bringing

petitioner and his associates to grief. Petitioner maintains

his claims for the benefit of others besides himself (includ-

ing creditors). The same Court of Appeals in its reported

12

1974 decision had identified his claims correctly as includ-

ing a claim for 5 per cent of $12,000,000 (less the interim

allowances on the 1966 petitions).

In reaching its Position Three the Court had to deal

with the arguments of petitioner’s prompt petition to re-

consider the new holdings in the order of January 17.

The Court accomplished that by rejecting and physically

returning the pleading back to petitioner.

Fourth position. In a prompt petition to reconsider

the new holdings of the fourth order (February 2) peti-

tioner showed that the Court may not retroactively re-

quire him to plead anticipatorily the absence of a judg-

ment barring his claims (which he had always, like the

Court of Appeals in 1974, described as pending.) To re-

quire such anticipatory pleading would be, as the Supreme

Court has said —

“inconsistent with any known rule of pleading,

so far as we are aware, and is improper.”

Boston Mining Company v. Montana Ore Com-

pany

188 U.S. 632, 638-639

Petitioner also argued that by springing a new bar against

him late in the litigation and refusing to hear (by physic-

ally rejecting) his valid, prompt refutation, the Court of

Appeals deprived him of his right to due process of law

in the primary procedural sense of that term, violating the

Fifth Amendment, and that to cling to such error in the

face of timely correction was entrapment — citing Brincker-

hoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 677-

681 (Brandeis, J.).

In its fifth order of February 24, the Court of Appeals

dealt with the arguments on anticipatory pleading and

13

deprivation of procedural due process in two ways. First,

it was too late because the Court’s mandate had gone

down to the district court instantly on February 2. (See

Clerk’s Letter of March 2, appended.) Secondly, consider-

ing the arguments on their ments, t held that they did

not warrant altering the ultintate position of the Court.

That ultimate position is that no injustice is being done.

Throughout all its shiftings of position, ending on a cryp-

tic bare assertion that no injustice is being done, the Court

clung to its original dismissal at the threshold with respect

to the claims in question (although its reversal of January

17 allowed the district court to adjudicate inchoate claims

for services performed after June 30, 1971). The Court

throughout refused plenary disposition and never allowed

an oral appearance. Finally, the Court left its decision in

such a state that it is not possible now to make out or

descry what its ratio decidendi was, on the basis of facts

in the record which are not in dispute.?

2 The Court of Appeals also persistently refused to mention other

vitai yuestions presented in the appeal, challenging the propriety of

distributing the expense fund to Penn Centra! in view of Penn Cen-

tral’s breach of trust alleged to have been committed in 1976 by

the trustees’ selling their remaining B&P properties to another car-

rier without preserving the B&P equitable trust as required by the

1971 B&P consummation decree, which made them trustees for the

proper administration of Stage Two for the B&P stockholders.

14

REASONS FOR GRANTING THE WRIT

Haste makes waste. [Lewis v. State of New York, 547

F.2d 24 (C.A. 2).] The First Circuit, compounding its

original error by obstinate insistence on summary dismis-

sal at any price, has produced an appellate quagmire.

Starting off on a mistaken assumption, the Court of Ap-

peals has progressed to a termination imposing forfeiture

of a nght of appeal and a major claim because the peti-

tioner had not disabused the Court of its misapprehension

before its misreading of the record came to light.

After being shown its original plain error, that Court

should not be allowed to reverse its course, shift its grounds,

and rationalize its summary dismissal without elaboration,

while dispensing with briefing and oral argument.

A thrice-reiterated summary dismissal cannot rest on shift-

ing sands and survive retraction and abandonment of its

previous major premises.

Unless that Court will render a reasoned account, it is

impossible to understand its underlying premises. A court

of appeals ought to lead the way and set a good example

by delivering a reasoned, articulate explanation of its dis-

missal, by giving a ratio decidendi that measures up to the

standards which it exacts from administrative agencies when

it subjects them to judicial review.? Patient study herein

has not deciphered the First Circuit’s final rationale.

3 Atchison, T. & S.F. Ry. v. Wichita Board of Trade, 412 US.

800, 807 (1973). S.E.C. v. Chenery, 332 US. 194, 196 (1947).

N.L.R.B. v. Wyman Gordon, 354 US. 759, 767 (1969).

15

Summary dismissal has been abused. A court may not

justify summary dismissal and persistent adherence to its

first impressions* by vague reference to vagrant equities

founded on undeveloped tenuous notions of fault and ne-

glect. It may not gloss over a failure to specify a legally

sufficient reason for summary dismissal by casually observ-

ing that no injustice is being done — for that is no more

than a residual conclusion which presupposes some other

solid stated ground already expressed. It is not an expla-

nation nor a justification for nonchalance with the facts

and a dismissive attitude toward the materiality of facts

misunderstood. It is emphatically not a legally self-suffi-

cient basis for summary dismissal standing by itself unam-

plified.

The Court of Appeals is out of order when it imputes

a lack of skill in the handling of an appeal, by condem-

ning before hearing and without first assuring itself in the

time-honored, conventional, judicial way (receiving briefs

and oral argument) that summary dismissal stands on firm

ground. It may not persist through thick and thin to off-

hand conclusions long after the premises have been shot

down. The Court should have made amends for its pre-

vious dismissal founded on a hasty misreading of the

record, by a fresh start abjuring preconceptions. To hear

befer it « ~demns, to resist self-justification, and to main-

tair °n ¢s.- mind were imperative. But instead its series

«© reitera vammary dismissals on unargued bases, and

its imposition of a duty on appellant to negate unforeseeable

4 Jacques Barzun, Clio and the Doctors, Univ. of Chicago Press,

1974, p. 50, qutoing from Ulric Neisser in Science, notes the uni-

versality of “a certain reluctance to admit error . . . characteristic

of people and institutions generally.”

16

erroneous objections to his appeal anticipatorily, denied him

the protection of Rule 58 and deprived him of procedural

due process.°

A court should not casually and offhandedly dismiss an

appeal taken by right merely because the court has done

so before, without a conscientious effort to explore or as-

certain whether any alternative procedure withstanding

analysis was available to petitioner and reasonably discov-

erable by practitioners before the court.®

After a court has had to acknowledge the error of its

way in prematurely dismissing an appeal in consequence

of its own mistake, it is unjust to penalize the victim by

then requiring him to run the gauntlet and to spike unar-

gued objections to his appeal going to its merits. It is un-

just to fault him for not having met them before they

were raised by the Court ~ Appeals initially, and then to

deny him the opportunity .__ meet its ill-defined objections

on the Catch-22 ground that he is injecting new issues. It

is self-evident that opportunity to present procedural due

process objections to the stumbling blocks interposed by

the Court sua sponte is required by due process and ele-

mentary considerations of fairness.

> For a court to proceed on its own in injecting new and un-

sifted theories without the help of counsel presents dangers.

A fortiori, if the court is impervious to reason and shakes off

refutations by stating that no injustice has been done it adds a new

terror to federal practice.

© None of the five orders addresses in any detail the question of

what avenues were open to petitioner. The existence of a 1974

order appealable by him was simply assumed.

17

The Court of Appeals was duty-bound vo resist the na-

tural tendency to carry over a bias resulting from its origi-

nal dismissal. The Court should have refrained from per-

sisting in summary dismissal until it could formulate a rea-

sonable conclusion not dependent on its original erroneous

dismissal.

By their nature foreclosure and preclusion, when invoked

to dismiss an appeal, require the specific elements to be ar-

ticulated. In this case there is a conspicuous absence of a

legally sufficient basis for dismissal on jurisdictional grounds

taking cognizance of the actual factual background. The

merits were never even canvassed. The Court should scotch

the appearance of a parti pris rationalization and predeter-

mined outcome by disclosing what its operative premises

were after its original assumption was discredited.

It is an abuse to take shelter behind rehearing rules

when the Court espouses novel theories. (Not that any

of petitioner’s pleadings were late under the Appellate

Rules.) To deny an opportunity to subject the new theo-

ries and their supporting facts to strict scrutiny is to block

correction of erroneous presuppositions and misapprehen-

sions latent in the new rationale, and to the extent that

the new substitute grounds are novel or undisclosed it de-

nies procedural due process. Brinckerhoff-Faris Trust &

Savings Co. y. Hill, 281 U.S. 673, 677-8. N.A.A.CP. ¥.

Alabama, 357 U.S. 449, 457-8. Davis v. Wechsler, 263

U.S. 22, 24.

A court may not insulate its orders from review by trap-

doors unconstitutionally denying appellant an opportunity

to respond to new matter, simply by directing the clerk

to return the submission as untimely (although prompt un-

der the Appellate Rules). (Cf Order of February 2, 1977,

‘18

the second sentence.) The district court had not fully dis-

posed all claims before it. There is no fixed rule that a dis-

trict court order or batch of orders presumptively ties up

all loose ends and disposes all claims. Civil Rules 54(b)

and 58 Yet that fallacy has plagued this case throughout

its sojourn in the Court of Appeals.

Petitioner is entitled to a reasoned statement of satis-

factory and legally sufficient bases for the summary dis-

missal. When the Court of Appeals refuses to receive as

new matter argument as to appealability and consequent

deprivation of due process it bars the last avenue to re-

dress in that court, erects improper barriers against correc-

tion, and clogs the right of appeal in a manner not author-

ized by 28 U.S.C. 1291.7

The cavalier attitude of the Court of Appeals to persist

in its initial impulse to dismiss notwithstanding the invali-

dation of its premises departs so far from acceptable proce-

dures as to demand the supervisory action of the Supreme

Court.

It is a reasonable interpretation that a sense of untime-

liness and waiver by failure to take an appeal from a sup-

posititious order of September 3, 1974, has influenced if

not dominated the entire proceeding below and has been

smuggled in through the back door to the very end. Cer-

tainly the Court of Appeals has not yet candidly owned up

to its errors but has defensively issued variations which do

7 “If we are to keep our democracy there must be one command-

ment: Thou shalt not ration Justice.” Address of Judge Learned

Hand before the Legal Aid Society of New York, February 16, 1951,

quoted in Marvin Comisky, Declare an End to Judicial Quotas, 36

Federal Bar Journal 30, 40 (Winter-Spring 1977).

19

not come to grips with the questions of what petitioner

ought to have done and whether he could have appealed

from the orders of awards on September 3, 1974, to some

other parties, despite his lack of objection to those awards.

(See the Hally letter appended.) He is faulted for not hav-

ing disabled the anti-aircraft guns of the Court of Appeals

which themselves did not reach their target (his appeal) un-

til after the guns started firing — but up to that point he

had no way of knowing that they were firing. Lex non

cogit ad impossibilia.

The law of pleading does not require anticipation even

of foreseeable objections, much less those that are flawed

in their reasoning.

The actions of the Court of Appeals present such a pro-

cedural foul-up as to outrage one’s sense of the decencies

and proprieties. Petitioner has been euchred out of his

appeal on the basis of a feeling within the Court of Ap-

peals which it has not been able to substantiate: namely,

that somehow, somewhere, there is either an impediment

to the appeal or some inequity in allowing it to be main-

tained. But the feeling is an amorphous sentiment which

has not yet been whipped into shape as the end product

of judicial reasoning demonstrating that what actuates it

is more than a mood or impression or desire to avoid.

It does not show that due cognizance of the hard, refrac-

tory, stubborn facts in the particular case has been taken.

It will not do to shoot down appeals by following the

reasoning of Dr. Fell’s case, for arbitrary elimination des-

troys public confidence that the judiciary’s performance

is based on the rule of law.

ram”

20

CONCLUSION

Wherefore petitioner prays that a writ of certiorari issue

to the United States Court of Appeals for the First Cir-

cuit to review its summary dismissal of petitioner’s appeal,

No. 76-1370.

Respectfully submitted,

HUBERT H. MARGOLIES

Room 633

Investment Building

Washington, D.C. 20005

(202) 347-9768

Attomey for Petitioner

ARMISTEAD B. ROOD

3520 Thirty-Fifth Street, N.W.

Washington, D.C. 20016

(202) 363-7275

Petitioner

July 2, 1977

la

APPENDIX

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

In the Matter of ) In Proceedings for the

) Reorganization of a

BOSTON & PROVIDENCE) Railroad

RAILROAD )

CORPORATION, )

Debtor. ) No. 62413

ORDER

It appearing from the quarterly report of Charles W.

Bartlett, Trustee, dated December 31, 1975, and the Peti-

tion of the Trustees of the Property of the Penn Central

Transportation Company, filed March 30, 1976, that it is

now proper to implement the third priority of payment

listed in Paragraph 12 the Plan of Reorganization of the

Boston & Providence Railroad Corporation which was

herein approved on November 8, 1966, due notice having

been given to all parties in interest, now, upon the said

petition, it is hereby

ORDERED that Charles W. Bartlett, Trustee, is directed

to pay to the Trustees of the Penn Central Transportation

Company, within thirty days from the entry hereof, all

moneys due and owing pursuant to the aforementioned

Plan of Reorganization in the amount of $385,187.04, as

specified in the Trustee’s quarterly report dated December

31, 1975, plus all interest that has accrued since the clos-

ing date of that report and less any necessary expenses.

June 24, 1976 /s/ Andrew A. Caffrey

Date District Judge

2a

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 76-1368.

IN RE

BOSTON AND PROVIDENCE

RAILROAD CORPORATION,

DUMAINES,

No. 76-1370.

IN RE

BOSTON AND PROVIDENCE

RAILROAD CORPORATION,

BOSTON & PROVIDENCE RAILROAD

DEVELOPMENT GROUP ET AL..,

Appellants.

MEMORANDUM AND ORDER

Entered November 5, 1976

Upon consideration of the Penn Central Trustees’ Mo-

tion for Summary Disposition, and all the oppositions

thereto, the court hereby grants the motions. As to the

argument of the Dumaines that an unbroken prior history

of reimbursement by the Penn Central is no guarantee of

future performance, we can only note that such an argu-

ment does not provide any reason to believe that the

Penn Central will therefore now refuse reimbursement.

3a

As to appellant Rood and the Development Group, we

note that the Interstate Commerce Commission rejected

their claim for services based on the “success Factor” theory,

and awarded them fees of $90,000.00. The I.C.C.’s last

action, a denial after reconsideration, occurred on June 6,

1974. The district court in September, 1974, directed pay-

ment of final expenses out of the debtor’s expense fund,

and that order has never been appealed. Since the time

for appeal has long since passed, this issue is not properly

before us.

The judgment of the District Court is affirmed.

By the Court:

/s/ Dana H. Gallup

Clerk.

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 76-1370

IN RE BOSTON & PROVIDENCE

RAILROAD CORPORATION

ORDER

Entered December 10, 1976

The court, in reviewing the petition for rehearing of

Armistead B. Rood, notes that the district court’s order

of April 26, 1974, was confined to petitions for allowance

of compensation for services rendered between July 1, 1966,

and June 30, 1971, and that the allowances made on Sep-

tember 3, 1974, were similarly limited. Additionally, in

Judge Ford’s order of February 23, 1971, the district court

reserved jurisdiction ‘‘to make allowances of compensation

for services heretofore or hereafter rendered . .

4a

tion with these proceedings or the Plan or the execution

of this order, out of said fund of $550,000.” Section V,

The court, therefore, may have misspoken it-

self, in its memorandum and order of November 5, 1976,

paragraph 2.

in referring to the district court’s action of September,

1974, as one which “directed payment of final expenses

out of the debtor’s expense fund, and that order has never

been appealed.”

The court therefore requests the appellees, the Trustees

of the Penn Central, and the Charge Trustee, to submit,

by December 23, 1976, a memor adum addressed to the

following questions:

Where and in what manner does the record show

that appellant Rood or the Development Group is

foreclosed from pressing in the district court or on

appeal any claim for services rendered after June 30

1971?

,

. If such claim is not foreclosed, contrary to our al

statement in our memorandum and order of Novem-

ber 5, 1976, what implications does such fact have

on our affirmance of the order of the district court

of June 24, 1976, directing the transfer of the mo-

neys remaining in the debtor’s expense fund to the

Penn Central Trustees?

If the claim for post-June 30, 1971, services has

not been foreclosed, what procedures exist for the

consideration and adjudication of such a claim?

By the Court,

/s/ Dana H. Gallup

Dana H. Gallup

Clerk.

. In connec-

Sa

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 76-1370

In the Matter of

Boston and Providence Railroad Corporation,

Debtor

ON MOTION FOR RECONSIDERATION

Before Coffin, Chief Judge,

and Campbell, Circuit Judge

Entered January 17, 1977

Upon appellant Rood’s Motion for Reconsideration and

upon consideration of all pleadings and exhibits filed with

the court, and memoranda submitted in response to the re-

request of the court, it is ordered that the matter be re-

manded for the limited purposes hereinafter described.

The court is satisfied that Rood no longer has any re-

viewable claim for services rendered for the period July 1,

1966, to June 30, 1971. The Interstate Commerce Com-

mission rejected his claim on February 4, 1974, 342 ICC

859, 870-873, which was then acted upon by the district

court on May 17, 1974, and implemented by allowances

granted on September 4, 1974. This court underscored

that appellant’s 1966-1971 claims were before the district

court in the period between the April, 1974, call and the

September, 1974, allowances. /n re Boston & Providence

Railroad Corp., 501 F.2d 545, 548 (Ist Cir. 1974). Rood

proffers no reasonable basis for his having failed to appeal

from the 'ower court’s awards of September 3, 1974. Ap-

pellant Rood, having not appealed from the district court’s

6a

failure to allow his allegedly pending petitions, has waived

any claim to an allowance for services rendered or ex-

penses incurred during this period.

As to claims for the period subsequent to June 30, 1971

we may have misspoken in our order of November 5, 1976

to the extent that we indicated that no issue regarding

fees or disbursements could now be raised. The district

court's orders of September 3, 1974 were predicated on

calls for petitions for allowances of compensation and ex-

penses from July 1, 1966 to June 30, 1971. Nothing

called to our attention indicates that claims for further

allowances have been barred. While we are by no means

sure that any valid claims exist, we deem it important

that an opportunity be afforded for their presentation.

We therefore grant the petition for rehearing and amend

our order of November 5, 1976 only to the extent that

we remand to the district court the matter of determining

whether any parties are entitled to compensation for serv-

ices rendered and expenses incurred subsequent to June 30,

1971, and, if so, in what amounts.

>

By the Court,

/s/ Dana H. Gallup

Clerk

7a

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT »

No. 76-1370.

IN RE

BOSTON & PROVIDENCE

RAILROAD CORPORATION,

BOSTON & PROVIDENCE RAILROAD

DEVELOPMENT GROUP ET AL.,

Appellants.

MEMORANDUM AND ORDER

Entered February 2, 1977

In his last two Motions for Reconsideration, appellant

Rood argued that there was no final order from which he

could appeal entered by the district court in September,

1974, and that his objections to that court’s approval of

the I.C.C. orders is therefore still pending. Since this argu-

ment was presented in neither his Motion to Stay filed on

August 6, 1976, nor in his Opposition to the Motion for

Summary Dismissal, dated October 25, 1976, and since no

satisfactory explanation is proffered, the motion for rehear-

ing is returned, pursuant to our local rule 15. Moreover, we

would add that in the circumstances narrated in our order

of January 17, 1977, there is no injustice imposed on an

appellant who did not raise this argument before the district

court at all, and who first raises it before us on a motion

for reconsideration.

It is further ordered that mandate issue forthwith.

By the Court:

/s/ Dana H. Gallup

Clerk.

8a

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 76-1370

IN RE

BOSTON & PROVIDENCE

RAILROAD CORPORATION,

BOSTON & PROVIDENCE RAILROAD

DEVELOPMENT GROUP ET AL.,

Appellants.

ORDER OF COURT

Entered February 24, 1977

The petition for reconsideration of the order of February

2, 1977, dated February 14, 1977, is hereby denied as being

untimely as mandate had issues; moreover, upon review

of the motion, no good reason appears why mandate

should be recalled.

By the Court:

/s/ Dana H. Gallup

Clerk.

OANA H. GALLUP

cc

9a

OFFICE OF THE CLERK

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

1606 Joun W. McCormack

POCT OFFICE AND COURTHOUSE

BOSTON. MASS. 021098

(617) 223-2008

CLERK

March 2, 1977

Armistead B. Rood, Esquire

3520 Thirty-Fifth St., N.W.

Washington, D.C. 20916

Re: No. 76-1370. In Pe: Roston & Providence Railroac Corp., etc.

Dear Mr. Rood:

In reply to your letter dated February 26, 1977 received today,

you will recall that the last paragraph of the February 2 Memorandum

and Order provided:

"It is further ordered that mandate issue forthwith."

In accordance with that order, the mandate was issued forthwith,

i.e. on February 2, 1977.

Sincerely yours, :

Dave Viellpr

Clerk.

DHG: lac

0

10a

Supreme Court of the Rnited States

No. = A-861

IN RE BOSTON & PROVIDENCE RAILROAD

CORPORATION ,

Debtor

leidicideiddedcccccdcdcccddcdececceceecicaceleee

ARMISTEAD B. ROOD,

Petitioner

FURTHER

ORDER/ EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

Upon CoNSIDERATION of the application of coustéel for petitioner¢a),

It Is Orperen that the time for filing a petition for writ of certiorari in

\ FURTHER

the above-entitled cause be, and the same is hereby, extended to and including

July 24 19.77

, without prejudice to the Court's

consideration of whether this application has been filed in time.

/s/ Wn. J. Brennan, Jr.

Associate Jusuce of the Supreme _

—f ph fe

Dated this __ 2°

day of______Jume ,19_27..

My

cae.e s00ee88 OUNTER

lla

ar

NUTTER, McCLENNEN & FISH

7S FEOERAL STREET

BOSTON, MASSACHUSETTS O2:1'0

aecacooc 61? 423-701)

DLLIVEeR

June 19, 1974

0294-06

The lionorable Andrew A. Caffrey

United States District Court

U.S. Postoffice anc: Courthouse

Boston, tiassachusctts 02109

Re: woston « Frovicencc i'ailroad Corporation,

vevtor - In Proceedings for the Reorganization

of a kailroad - No. 62,413

Dear Judge Catfrey:

In connection with the Motion of Armistead b. Rood

for Continuance of Procecdinys Scheduled for June 21, 1974

(which we understana the Court has acted on by continuing the

proceedings until July 22, 1974), tne undersiqned anc

Laurence M. Cinanning of ill & varlow, had telephone conver~

sations on June le, 1974 with Charles &. .esson, usquire,

Mr. Rood's attorney, concerning the possible effect of the

Motion on the status of tiie [vce applications in tiie above

proceecing of mill & Sarlow, cnis firm (and Palmer & Dodge).

This letter is to confirm for the record Mr. Nesson's statement

of position on that subject: cir. sesson stated, in substance,

that allowance of mr. kood's particular Motion was not intended

to uwelay the action of the Court in oassing on and settling the

fee applications of tnecce three firms; anc, specifically, that

Mr. Rood aoes not object to the entry of final orders by the

Court on such fee ayplications.

Respectfully; awe

erst 5 ware |

’ ~\ ~ |e

|

oh i _ Re ‘

° o-a \- — \ .. ‘

John R. Hal

JRil: sp

Copies to all counsel i

(as per attachea certificate of service)