Reply Brief — Morelock v. NCR Corp.

Supreme Court.

FILE _ 7

SEP 21 1977 |

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AN. OR. CLERK

IN THE nai :

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 77-172

HUBERT MORELOCK, EUGENE BORGERDING,

WILLIAM EVANS, CLAYTON METCALF, AND

RALPH SAUNDERS,

Petitioners,

VS.

THE NCR CORPORATION,

Respondent.

REPLY BRIEF IN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOHN B. HUBER

1520 Marsetta Drive

Dayton, Ohio 45432

(513) 429-0577

Counsel for Petitioners

COURT INDEX PRESS, INC. — 2/5 E. Ninth Street, Cincinnati, Ohio 45202 — (5/3) 241-1480

INDEX

FINALITY

LORILLARD v. PONS, ALREADY BEFORE

THE SUPREME COURT

A QUESTION OF SUBSTANCE

CONFLICT AMONG THE CIRCUIT COURTS

OF APPEAL

CONCLUSION

Page

I.

CITATIONS

Coe v. Armour Fertilizer Works, 237 U.S. 413 (1915)

F.T.C. vy. American Tobacco Co., 274 U.S. 543 (1973)

Gulf Refining Company v. U.S., 269 U.S. 125 (1925)

Haseltine v. Central National Bank,

183 U.S. 130 (1902)

Hudson Distributors Inc. v. Eli Lilly and Co.,

377 U.S. 386

Local No. 438 v. Curry, 371 U.S. 555

Mercantile National Bank v. Langdeau,

371 U.S. 555

NLRB vy. Pittsburgh S.S. Company,

340 U.S. 498, 502 (1951)

. North Dakota State Board of Pharmacy v. Snyders

Drug Stores, Inc., 414 U.S. 156 (1973)

Pons v. Lorillard, 549 F.2d 950 (C.A.4) (certiorari

granted 5-27-77, 45 U.S. Law Week 3840)

Rice v. Sanger, 144 U.S. 197 (1892)

Rogers v. Exxon, 550 F. 2d 834 (C.A.3)

Scofield v. National Labor Relations Board,

394 U.S. 423 (1969)

Sentilles v. Inter-Caribean Shipping Corp.,

361 U.S. 107

Slaken v. O'Connor, 278 U.S. 61 (1928)

Smith v. Adams, 130 U.S. 167 (1889)

U.S. v. Krall, 174 U.S. 385 (1889)

Wilson v. Republic Iron and Steel Company,

257 U.S. 92 (1921)

Page

te

oo Mm >

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 77-172

HUBERT MORELOCK, EUGENE BORGERDING,

WILLIAM EVANS, CLAYTON METCALF, AND

RALPH SAUNDERS,

Petitioners,

Vs.

THE NCR CORPORATION,

Respondent.

REPLY BRIEF IN SUPPORT OF THE

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

I. FINALITY

Respondent asserts that Supreme Court Rule 19 re-

quires a ‘‘final appealable order” prior to a successful in-

vocation to this Court to grant jurisdiction. It plainly

does not so provide. That the rule might have so stated in

1928' and 1925? is no response to the applicable statement

1 Slaken v. O'Connor, 278 U.S. 61 (1928)

2 Gulf Refining Company v. U.S., 269 U.S. 125 (1925)

2

of Rule 19 as contained in the current Supreme Court

Rules.

Respondent's citation and notions of ‘‘no perishable con-

stitutional issue” wherein Writ of Certiorari was sought

(and granted) * to review the judgment of a state supreme

court under 28 U.S.C. sec. 1257 is likewise inapposite to

this case wherein review is sought of a federal appellate

court's decision, now in conflict with two other Circuit

Courts of Appeal.*

Moreover, Respondent's own citation of the North Da-

kota Pharmacy Board decision, itself provides reference to

three separate instances wherein remand for further pro-

ceedings below in state court, did not deprive those pe-

tions for Certiorari the required “finality” even under 28

U.S.C. sec. 12575, which did require “finality”.

Of the seven (7) further citations asserted in support of

Respondent's ‘‘Finality” argument, (Respondent’s Brief in

Opposition p. 6), none are applicable.

Three of the decisions involve attempted Writs to the

State Supreme Courts of Florida*, Missouri’, Kansas®, and a

fourth involved an attempted Writ to the then Supreme

Court of the Territory of Dakota®.

3 North Dakota State Board of Pharmacy v. Snyders Drug Stores, Inc.,

414 U.S. 156 (1973)

4 Pons v. Lorillard, 549 F. 2d 950 (C.A.4) (certiorari granted 5-27-

77), 45 U.S. Law Week 3840; Rogers v. Exxon, 550 F. 2d 834 (C.A.

3)

5 Hudson Distributors, Inc. v. Eli Lilly and Co., 377 US. 386;

Local No. 438 v. Curry, 371 U.S. 542; Mercantile National Bank v.

Langdeau, 371 U.S. 555

6 Coe v. Armour Fertilizer Works, 237 U.S. 413 (1915)

7 Haseltine v. Central National Bank, 183 U.S. 130 (1901)

8 Rice v. Sanger, 144 U.S. 197 (1892)

9 Smith v. Adams, 130 U.S. 167 (1889)

3

The fifth involved an attempted direct appeal from a

district court under then Section 238 of the Judicial Code.'®

The sixth citation is to an ancient decision of 1899, when

the applicable Supreme Court rule did impose the condi-

tion of “finality”, this in contrast with present Rule 19,

which does not."

The seventh citation involved an issue of timely filing of

Petition for Certiorari within the 90 day period, the Court

holding that in absence of service of a notice of entry of

judgment per Federal Appellate Rule 36, the judgment

below was not “final” for purpose of starting the 90 day

clock."?

II. LORILLARD vy. PONS, ALREADY BEFORE

THE SUPREME COURT

Petitioners have already asserted several substantive rea-

sons why this case should not be merely held in abeyance

but instead accepted either for independent review or for

concurrent review and argument with the already accepted

Lorillard case from the Fourth Circuit.'%

To these substantive reasons, Respondent makes no re-

ply save the naked assertion that in the Lorillard case,. . .

“the i. sue is better presented”.

To us, the most telling of the reasons favoring issuance

of the Writ lies in the Sixth Circuit’s advance announce-

ment made at the time of denying the petition for rehear-

ing, that the Supreme Court’s decision in Lorillard alone,

will not resolve the conflict, viz., that even in the wake

10 Wilson v. Republic Iron and Steel Company, 257 U.S. 92 (1921)

11 U.S. v. Krall, 174 U.S. 385 (1889)

12 Scofield v. National Labor Relations Board, 394 U.S. 423 (1969)

13 Petition for Writ, Morelock et al. vy. NCR Corp., pp. 10, 11

4

of the Supreme Court's sustaining the right to jury trial

in Lorillard, the Morelock jury will persist as an advisory

one, given the allegedly distinguishing element, the joinder

of multiple equitable claims for relief in Morelock.

Ill. A QUESTION OF SUBSTANCE

Respondent urges that a question of substance is pre-

sented only when the Supreme Court is in a position to

finally resolve the issue of ‘‘who wins and who loses’. Were

that the case, remand from the Supreme Court back to

the circuit courts or trial courts for further proceedings

would never occur, as it most frequently does.

To the degree this specious “ultimate outcome” argu-

ment is relevant to the question of whether Writ should

or should not issue, we observe that a jury verdict of li-

ability has already been returned in this case against the

Respondent.

The “ease” with which that verdict may be ignored as

the work of an advisory jury, turns to ‘consummate difh-

culty” upon acknowledgment of jury trial as a matter of

right.'4 .

Respondent's citation, F.7.C. v. American Tobacco",

was in fact accepted for review. The Circuit Court's de-

cision was affirmed upon that review in keeping with the

“rule of non-interference where conclusions on a matter

of fact depend on appreciation of circumstances which ad-

mit of different interpretations.” 274 U.S. 543, 544.

The troublesome fact issue in that case was whether the

defendant “became party to the unlawful combination of

14 See Sentilles vy. Inter-Caribean Shipping Corp., 361 U.S. 107, 4

L.ed 2d 142, 80 S. Ct. 173

15 F.T.C. v. American Tobacco Co., 274 U.S. 543 (1973)

5

tobacco jobbers at Philadelphia to maintain prices?” 274

U.S. 543, 544.

In stark contrast, the issue at hand in Morelock is Con-

stitutional, not factual. Tue Morelock decision, moreover,

has created a conflict with two Federal Circuit Courts of

Appeal on that very Constitutional issue.

NLRB v. Pittsburgh S.S. Company"* likewise was an in-

stance wherein the review of fact issues were held to be left

normally and primarily to the Circuit Courts of Appeal

under the express Congressional direction in Taft-Hartley,

sec. 10 (e) , 61 Stat. 148, 29 U.S.C. (Supp. III) sec. 160 (e).

Respondent's citations involve neither a Constitutional is-

sue nor a conflict among the Circuit Courts of Appeal.

IV. CONFLICT AMONG THE CIRCUIT

COURTS OF APPEAL

Respondent seemingly urges at page 8 of the Brief in

Opposition that right to trial by jury varies whether age

discrimination is imposed under the mechanism of a pen-

sion plan versus the mechanism of a non bona fide seni-

ority system and thereby attempts to absolve the Third

Circuit's Roger’s decision of any conflict with Morelock.

The Lorillard-Morelock conflict is absolved in equally

superficial fashion by failure to perceive the obvious con-

tradiction between the Sixth Circuit's rendering of the

Morelock jury's verdict to the nothingness of an ‘advisory

finding”, with the Fourth Circuit’s grant of jury trial as

a matter of Constitutional right.

16 NLRB vy. Pittsburgh S.S. Company, 340 U.S. 498, 502 (1951)

CONCLUSION

Because of the decision’s clear conflict with Pons v. Loril-

lard, 549 F. 2d 950 (C.A.4) (certiorari granted 5-27-77, 45

U.S. Law Week 3840); its clear conflict with Rogers v.

Exxon, 550 F. 2d 834 (C.A.3) ; and the very real prospect

that a decision in that already accepted 4th Circuit case

will not resolve the entire conflict now clouding relief under

the Age Discrimination in Employment Act, the Petition

for Writ of Certiorari to the Sixth Circuit Court of Appeals

should be granted.

Respectfully submitted,

JOHN B. HUBER

1520 Marsetta Drive

Dayton, Ohio 45432

(513) 429-0577

Counsel for Petitioners