# Petition — Marker v. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 436 U.S. 963

## Text

| APR 241975

MICHAEL RODAK, JR., cunt |

] IN THE

| Supreme Court of the Gnited States
g771521

No. Misc.

GERALD MARKER, et ai.,
Petitioners (Intervenors),

INTERNATIONAL UNION, UNITED AUTOMOBILE
AEROSPACE AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, INC.., ef ai.,

Respondents (Plaintiffs),
and

NATIONAL RIGHT TO WORK LEGAL DEFENSE
AND EDUCATION FOUNDATION, INC., ef al.,

Respondents (Defendants).

MOTION FOR LEAVE TO FILE PETITION
FOR WRIT OF CERTIORARI

AND

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT

Washington, O.C. « CLS PUBLISHERS « LAW PRINTING CO. © (202) 393-0625

GODFREY P. SCHMIDT
Suite 1606
654 Madison Avenue
New York, New York 1002!
(212) 371-7290

GLENN H. CARLSON
Perito, Duerk and Carlson, P.C.
Suite 1200
1001 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 659-8300

Attorneys for Movants/Pet.tioners

April 24, 1978

SE Tk REET Iw OT

(i)

INDEX

Page
ee Gl? SUID 6 6.505.660 s dp centddsuvccesves il

MOTION FOR LEAVE TO FILE PETITION FOR
. -§ §° RRR ere err |
PETITION FOR WRIT OF CERTIORARI ............. 3
ST oi ic icc cules ignaneeaseeesnebunns +
STATEMENT er SEED hb 6 h000K00eds¥enns 4
STATUTES AND RULES INVOLVED ................ 4
Ree CGE sce icccccvcccvesceccccvcee 5
SEA PEITE GO COM GUE osc vccccccedivedceccccce 5
REASONS FOR GRANTING THE WRIT ............ 10

I. NATIONAL IMPORTANCE OF THE
GREE. <b c.n04pccsdue bAebseemness cubbedees dee 10

II. ABROGATION BY COURT BELOW OF

RULES 28 AND 31, FEDERAL RULES OF
APPELLATE PROCEDURE .....ccccccccccees 1]

Ill. ABDICATION OF JUDICIAL FUNC-
TION BY THE COURT OF APPEALS ........ 14

IV. IMPAIRMENT OF FUTURE JURIS-
See GE RUE GENE ko cdnevsccccccces 15

V. PETITIONERS’ HOBSON’S CHOICE:
RES JUDICATA OR APPEAL ................ 18

VI. VIOLATION OF PROCEDURAL DUE
PROCESS BY THE COURT OF APPEALS.... 19

VII. PETITIONERS HAVE NO REMEDY EX-
CEPE Be CUD CU CSCO cc cvesccesecscccess 21

CEPRMPENS ss ccvcsneccsicsecbiaeecestosvedecscées 22

(ii)

TABLE OF AUTHORITIES
Page
Cases:
Alexander v. Hillman, 296 U.S. 222 (1935) ............ 18
Armstrong v. Manzo, 380 U.S. 545 (1965) ............. 19
Bankers Life & Cas. Co. v. Holland, 345 U.S. 379
EEE EOE ALS TILE SEE IE NS 13
Boston Tow Boat Co. v. U.S., 321 U.S. 632 (1944) ..... 18
Cobbiedick v. United States, 309 U.S. 323 (1940) ....... 13
Commercial Electric Supply Co. v. Curtis, 288 F. 657
(8th Cir. 1923), cert. den. 264 U.S. 709 (1923) ...... 18
Connor v. Coleman, 425 U.S. 675 (1976) .............. 14

Davis v. Merchantile Trust Co., 152 U.S. 590 (1893) .... 17
DeBeers Consolidated Mines, Ltd. v. United States,

eS RR 4,20,21
Employers Reinsurance Corp. v. Bryant, 299 U.S.
EE EE 11
Ex parte Abdu., 247 U.S. 27 (1917) ............. eee ee 15
Ex parte Harley Davidson Motor Co., 259 U.S. 414
eee CRG eescésecesedcoctesess 14
Ex parte Jordan, 94 U.S. 248 (1876) ................... 13
Ex parte Kawato, 317 U.S. 69 (1942) .................. 14
Ex parte United States, 287 U.S. 241 (1932) ........... 16
Fishgold v. Sullivan Drydock Co. Repair Corp., 328
ee Ee eed ce cbeebeeuseusscecnces 11,18
Goldlawr, Inc. v. Herman, 369 U.S. 456 (1962) ......... 13
Gumbel v. Pitkin, 113 Picker Min. & Smelting Co.,
! Tr 13
Head v. California, 374 U.S. 509 (1963) ............. 4,22
House v. Mayo, 324 U.S. 42 (1945) ..............0.44.. 4

In re Chetwood, 164 U.S. 442 (1897) ..............005. 20

(iii)

International Union, Local 289 v. Scofield, 382 U.S.

TD. Kiddies cbbechdsaedadadeseuues 11,16-17
Kerr v. U.S. District Court, 426 U.S. 394 (1976) ........ 13
LaBuy v. Howes Leather Co., 352 U.S. 249 (1957)...... 13
McClellan v. Carland, 217 U.S. 268 (1909) ........ 4,15,21
North Carolina v. Pearce, 395 U.S. 711 (1969) ......... 20
Parr v. United States, 315 U.S. 513 (1956) ............. 13
Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240

Shi clce de rece. ues abbbadseeeledes cued 11
Port of New York Authority v. Baker, Watts and Co.,

129 U.S. App. D.C. 173, 392 F.2d 497 (1968) ...... 19
See BE, BED Wee GE CODED iccccccccccccsoseoes 15,20
Re Engelhard & Sons, 231 U.S. 646 (1914) ............ 11
Bed We AED Ws GP CUNEED 6 oc ce cecccttcdccccccsese 20
Roche v. Evaporated Milk Ass’n., 319 U.S. 21(1943) .... 13,20
Schlagenhauf v. Holder, 379 U.S. 104 (1964) ........... 20
SEC v. U.S. Realty and Improvement Co., 310 U.S.

i oir eee ese eadueeecentses 19

Shields v. Utah Idaho C.R. Co., 305 U.S. 177 (1938) .... 17
Sixty-Seventh Minnesota Senate v. Beens, 406 U.S.

EE ei Poe ce Ie bbadindeudeweseseten seeds 11
Steffler v. United States, 319 U.S. 38 (1943) ............. 4
Sung v. McGrath, 399 U.S. 33 (1949) ................. 17
United States v. Ruzicka, 329 U.S. 287 (1946) .......... 10
United States Alkali Export Association, Inc. v.

United States, 325 U.S. 196 (1945) ............ 4,16,20
Will v. United States, 389 U.S. 90 (1967) ........... 13,20
Williams v. Morgan, 111 U.S. 684 (188) .............. 11

(iv)

Wolpe v. Poretsky, 79 App. D.C. 141, 144 F.2d 505

SE ~o ce cabahenddddesdedbecséscedingecddiendthd 11
United Staies Constitution:
CE, Ge GIES © hide uesetcivccdcccdecsscces 20
ee OI © osc Ad ieee ccknstadeccesac 5,19
Statutes:
Be ee ED iscsi ecetddecsddsusseusbasscnser 12,14,20
Be ee ED dh cvtcdckhtuccedeucbdatsiusncdes deus 4
EE aac ccceg ceseneoesnbedrekeebnsatades 6
EE cb one cccceeceudedewdschabededeessed 6
CE ons cccned J ueeeianeneleen cameenind 1,13
ED i dicocoscedcasbkccidukamiabedenéee 3,4
Se ES EE ne nddadscpsees s006n0 LR Moe Hei 8 PE & 6
SE nckdccdcotécekiesankbensuneinseutens 6
St CE MT ecniicndinss snbanegesiactaneus peebndens 6
LMRDA §101(a)(4), 29 U.S.C. §411(a)(4) ....... 6,7,8,18
LMRDA §203(b), 29 U.S.C. §433(b) ..............008. 6
Pe EE ho. dubbed dodutevetnecesocts cee 3,4,5,11,12,19
Pe ED ci vc dus cicedenssdneeneaeneeunes 11
POE EE ics dan cduwandadeneedaadeededdaeannal 4,11
PRE MD ccnnbdiovhcckdesccesenndiadesseeb oven 4,12
F.RALP. 28(h) .......ccecceccecccccccccceccssceces 4,12
Pe 2 ota decbesbedsdewdeease té00neensnneane 12
PEE OE dns vecccatkenvddéiinetaésoeent 3,4,5,11,12,19
PN SE ov cc vivecccksadeseusaccadcesebensceete 4,12
PD bei 6eddbdccs be cd cabdbbecdundéaseeseteers 8
Pa AP dudwevcscbecedebscedl ceedetcsehies. peeves 14

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1977

No. Misc.

GERALD MARKER, et al.,
Petitioners (Intervenors),

INTERNATIONAL UNION, UNITED AUTOMOBILE
AEROSPACE AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, INC., ef al,

Respondents (Plaintiffs),
and

NATIONAL RIGHT TO WORK LEGAL DEFENSE
AND EDUCATION FOUNDATION, INC., et al,

Respondents (Defendants).

MOTION FOR LEAVE TO FILE PETITION
FOR WRIT OF CERTIORARI

Now come the Petitioners and respectfully move this
Court for leave to file the annexed Petition for Writ of
Certiorari under Section 1651 of Title 28, United States
Code, which Petition is directed to the United States Court

2

of Appeals for the District of Columbia Circuit, to review
the Order of that Court entered December 21, 1977 and
upon which rehearing was denied on January 23, 1978, all
as more particularly described in the Petition, and for such
other and further relief as may be just and proper.

Dated: April 24, 1978

GODFREY P. SCHMIDT
Suite 1606

654 Madison Avenue

New York, New York 10021
(212) 371-7290

GLENN H. CARLSON

Perito, Duerk and Carlson, P.C.
Suite 1200

1001 Connecticut Avenue, N.W.
Washington, D.C. 20036

(202) 659-8300

Attorneys for Movants/Petitioners

3

IN THE
Supreme Court of the Gnited States

No. Misc.

GERALD MARKER, et al,
Petitioners (Intervenors),
Ve

INTERNATIONAL UNION, UNITED AUTOMOBILE
AEROSPACE AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, INC., ef al.,

Respondents (Plaintiffs),
and

NATIONAL RIGHT TO WORK LEGAL DEFENSE
AND EDUCATION FOUNDATION, INC., et ai.,

Respondents (Defendants).

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT

Petitioners, pursuant to 28 U.S.C. 1651(4), pray that a
Writ of Certiorari issue to review the Order of the United
States Court of Appeals for the District of Columbia
Circuit entered on December 21, 1977, and upon which
rehearing was denied on January 23, 1978. The earlier
Order struck Petitioner’s “ Brief for Intervenors-Appellees”’,
filed and served pursuant to Rules 28 and 31, F.R.A.P. on
November 16, 1977.

4

OPINION BELOW

The United States Court of Appeals for the District of
Columbia Circuit did not write any opinion relevant to this
Petition. The subject Orders are set forth in the simul-
taneously submitted and separate Appendix, pp. la and 3a
(hereinafter “‘App.”’ followed by the page number).

JURISDICTION TO REVIEW

The Court of Appeals Order denying rehearing of the
Court of Appeals was entered on January 23, 1978.
Jurisdiction of this Court is invoked pursuant to 28 U.S.C.
§ 1651(a)' or, in the alternative, pursuant to 28 U.S.C.
§ 1254(1).

STATUTES AND RULES INVOLVED

This case involves Federal Rules of Appellate Procedure
(“F.R.A.P.”) Rules 28 and 31 and specifically, Rules
28(b), 28(c), 28(h), and 31(a) thereof. These two Rules
appear in full at App. 54a and 57a, respectively.

‘See, House v. Mayo, 324 U.S. 42 (1945); Steffler v. United States,
319 U.S. 38 (1943); McClellan v. Carland, 217 U.S. 268 (1909).;
DeBeers Consolidated Mines, Lid. v. United States, 325 U.S. 212
(1910); and United States Alkali Export Association, Inc. v. United

States, 325 U.S. 196 (1945). See also Head v. California, 374 U.S.
509 (1963).

“~~

Crap

5

QUESTIONS PRESENTED

1. By striking Petitioners’ “Brief for Intervenors-
Appellees’’, did the Court of Appeals violate Rules 28 and
31, F.R.A.P., thus precluding Petitioners (as Appellees)
from answering the arguments set forth in Appellants’
Brief?

2. Where a full panel of the Court of Appeals had on
December 17, 1976, unanimously and in all respects
affirmed the District Court’s Order granting Petitioners
intervention, did a two-judge panel of the Court below
(including only one judge of the original panel) have power,
on December 21, 1977, during the pendancy of no relevant,
appeal, to modify and curtail both the District Court’s
intervention order and the full panel’s affirmance thereof?

3. By striking said Brief (filed pursuant to Rules 28 and
31, F.R.A.P.) did the Court of Appeals deprive Petitioners
(as Appellees) of procedural due process under the Fifth
Amendment to the Constitution of the United States?

4. By striking said Brief, did the Court of Appeals impair
or frustrate the future jurisdiction of this Court?

STATEMENT OF THE CASE

A. The Underlying Complaint. On May 1, 1973, ten
international and national unions, each a member of the
American Federation of Labor-Congress Industrial Organ-
izations, filed in the United States District Court of the
District of Columbia a complaint against the National Right
to Work Legal Defense and Education Foundation, Inc.
(‘‘Foundation’’) and the National Right to Work Committee
(“Committee”), both hereinafter sometimes referred to as
defendants. The complaint, an amended complaint and a
second amended complaint requested in two counts injunc-

6

tive and declaratory relief and compensatory damages for
alleged violations of the Labor Management Reporting and
Disclosure Act (“LMRDA”), specifically Sections 101(a)-
(4) and 203(b) thereof [29 U.S.C. §411(a)(4) and 29
U.S.C. §433(b)]. Jurisdiction of the Distict Court was
claimed under 28 U.S.C. §2201 (declaratory relief), 28
U.S.C. §2202 (relief ancillary to declaratory relief), 29
U.S.C. §412 (relief for persons aggrieved by infringement of
their rights under LMRDA), 28 U.S.C. §1331 (Federal
questions involving more than $10,000.00) and 28 U.S.C.
§1337 (civil actions arising under Acts of Congress
regulating commerce).

The First Count of the complaint sought to prevent
Foundation from continuing legal aid to Petitioners, among
others, in actions against unions in other jurisdictions.
Without such aid, Petitioners would not be able to finance
their meritorious actions in other courts. That count of the
second amended complaint relies entirely upon the second
proviso in Section 101(a)(4) LMRDA. Petitioners’ interest
in the litigation is confined to that first count. On January 9,
1976, Petitioners, numbering sixteen, moved, in the
District Court, to intervene as Defendants. All but two of
the movants alleged receipt of Foundation’s legal aid, and
the other two were then in the process of requesting such
aid, and have since received it.

B. Judicial History Immediately Relevant to this
Petitioners permissive intervention. (App. 51a.) That Order
was affirmed by the Court below (App. 49a). It explicitly
limited intervention to two purposes:
explicitly limited intervention to two purposes:

[1] for the limited purpose of submitting evidence on

the question of whether the plaintiffs set forth in

paragraph ten of the amended complaint were at the
time of these actions union-member employees and

7

[2] for the purpose of submitting briefs on legal
questions extant. [Emphasis supplied. |
Petitioners rely here on the second purpose.

Pursuant to invitation of the District Court to all parties,
Petitioners submitted lengthy Memoranda? of law on May
3 and May 10, 1977. No objection to the filing of such
Memoranda was made by either the District Court or
Plaintiffs’ counsel.

On June 2, 1977, the District Court filed its Order and
Opinion (App. 38a and 21a, respectively) granting summary
judgment against plaintiff unions. This precipitated three
appeals: one by Petitioners (Docket No. 77-1739) as
Intervenors-Appellants; one by Plaintiffs-Appellants
(Docket No. 77-1766); and one by Defendants-Appellants
(Docket No. 77-1767). (App. 13a, 19a, and 9a and 6a
respectively). Petitioners (as Intervenors) filed their Notice
of Appeal on July 5, 1977; it was given Docket No. 77-1739,
a number applicable to Petitioners only as Intervenors-
Appellants. Subsequently, the plaintiff unions filed a Motion
to strike Intervenors’ Notice of Appeal. On September 26,
1977, the Court of Appeals, per curiam, entered in Docket
No. 77-1739 its Order on that Motion:

Upon consideration of appellees’ [plaintiff unions’
motion to dismiss [petitioners’] appeal, of the re-
sponses filed with respect thereto, and it appearing that
these appeals draw into question the constitutionality
of 29 U.S.C. §411(a)(4), it is

ORDERED by the Court that appellees’ aforesaid
motion is granted except as to the matters stated on page
five of intervenors’ notice of appeal filed in the District
Court on July 5, 1977 which will be the sole matters to
be briefed [by Petitioners as Appellants] in this appeal,
and, it is
7Intervenors confined their Memoranda of Law in that Court to

Count One of the Second Amended Complaint, having no interest in
Count Two or in Defendants’ Counterclaim.

8

FURTHER ORDERED by the Court sua sponte that
the instant case [No. 77-1739] and numbers 77-1766
and 77-1767 are consolidated for consideration of the
merits.

The Clerk is directed to send a certified copy of this
order to the Attorney General of the United States
pursuant to Rule 44 of the Federal Rules of Appellate
Procedure.

On November 16, 1977, Petitioners served and filed their
“Brief of Intervenors-Appellees”’. The plaintiff unions filed
a motion to strike that Brief.

On December 21, 1977, the Court below in Docket No.
77-1739 (wherein Petitioners are appellants, as distin-
guished from Docket No. 77-1766 and 77-1767, where
Intervenors are appellees) entered its per curiam Order:

Upon consideration of the [plaintiff unions’] motion to
strike the brief of Intervenors-appellees [Petitioners]
filed in number 77-1739, of the responses filed with
respect thereto, and of the Court having sua sponte
considered and rejected the additional submissions as a
brief of amicus curiae, it is

ORDERED by the Court that the motion to strike is
granted and counsel shall correct the brief, within ten
days from the date of this order, to comply with the
order filed herein on September 26, 1977.

Petitioners then filed a Motion for Rehearing, Stay and
Clarification upon tle Order of December 21. On January
23, 1978, the Court below filed its per curiam Order
(captioned in Docket Nos. 77-1739, 77-1766 and 77-
1767) denying Petitioners’ Motion for Rehearing, etc.:

‘While Petitioners’ printed Brief below agreed with the District
Court’s holding that, as applied by plaintiff unions, 29 U.S.C.
§411(a)(4) is unconstitutional, most of Petitioners’ arguments
contended that summary judgment in favor of Defendants was justified
on non-constitutional grounds, particularly grounds of statutory
construction.

9

Counsel for Intervenors’ (Gerald Marker, et al.) have
filed a motion for rehearing, stay and clarification, and
exhibits thereto. On consideration thereof, it is

ORDERED by the Court that the Motion for
rehearing, stay and clarification is denied. Counsel for
intervenors/appellants/cross-appeilees _ [Petitioners]
Gerald Marker, et al., shall, within seven days of the
date of this order, file a brief addressing only the single
issue specified on page 5 of their notice of appeal, III
J.A. 951, in lieu of the brief stricken on December 21,
1977. The Court will not entertain an application for
stay of mandate or other dilatory pleading. Counsel
will file the brief specified, in order to comply with the
order of this Court, whatever other pleadings counsel
may file. ;

Counsel for Petitioners did, on January 30, 1978, “‘file
the brief specified”, without prejudice to their right to file
this Petition. That limited Brief addressed only the subject
mandated by the Court of Appeals, and it was filed and
served without subsequent objection from any party.

10

REASONS FOR GRANTING THE WRIT

I. National Importance of the Case

Petitioners’ interest in this case has been settled by the
District Court’s intervention Order and its affirmance by the
Court below (App. 5la and 49a). Obviously Petitioners
stand to lose Foundation’s legal aid if the Amended Com-
plaint is sustained on appeal. But Petitioners contend for a
decision serviceable as a precedent for all similarly situated
employees and union members‘ in need of legal aid as well as
for themselves. Thus, issues in which all employees and
union members have a vital stake predominate in this case,
which personally affects Petitioners as well as thousands of
union members and employees unable to afford the cost of
litigations against unions. The case is of national impor-
tance because it affects these many persons and the just
administration of the federal court system and the national
labor laws. United States v. Ruzicka, 329 U.S. 287
(1946). Further, the legal issues here are unprecedented,
important questions of first impression.

‘The real, primary cause which initiated this litigation was the
nationwide existence of (i) dissenting union members, (ii) employees
who reject union membership, and (iii) employees who object to paying
for the support of unions (which, after all, represent about twenty
percent of all U.S. employees). If such dissidents from vnionism did not
exist, this case could not have arisen. At bottom and as the Complaint
shows, the basic controversy in this case is not confined to the Plaintiffs
and Defendants named in the Complaint. This controversy is merely a
symptom of prior deeper disputes between plaintiff unions and
dissident union members aided by Defendants.

~

II. Abrogation by Court Below of Rules 28 and 31,
Federal Rules of Appellate Procedure.

Petitioners as intervenors are parties in this case. Rule 24,
F.R.C.P., provides the procedural device whereby a stranger
to a litigation can present a claim or defense therein and
become a party for that purpose.’ By striking Petitioners’
Brief, the Court of Appeals’ Order divested Petitioners of
their rights both as appellees and as parties, rendering
them voiceless in the face of appellant unions. The Court
below struck Petitioners’ Brief more than a year after the
time to appeal the intervention Order of the District Court
had expired, and more than a year after the Court of Appeals
itself had unanimously and in all respects® affirmed that
District Court Order.

In so doing, the Court below devalued Petitioners’ status
and role as intervenors and parties, despite Rules 28 and 31,
F.R.A.P., which Petitioners had called to its attention, and
which as relevant read:

Rule 28

(b) Brief of the Appellee. The brief of the appellee shall
confirm to the requirements of subdivision (a)(1)-

ere

‘International Union, Local 289 v. Scofield, 382 U.S. 205 (1965);
Sixty-Seventh Minnesota Senate v Beens, 406 U.S. 187 (1972);
Fishgold v. Sullivan Drydock Co. Repair Corp., 328 U.S. 275 (1945);
Wolpe v. Poretsky, 79 App. D.C. 141, 44 F.2d 505 (1944); Williams v.
Morgan, 111 U.S. 684 (1884).

. *Even this Court refuses to revise a district court’s unabused

discretion concerning intervention. Re Engelhard & Sons, 231 U.S.
646 (1914). A court of appeals may not use an extraordinary remedy to
control the trial court’s properly exercised discretion. Platt v.
Minnesota Mining & Mfg. Co., 376 U.S. 240 (1964); Employers
Reinsurance Corp. v. Bryant, 299 U.S. 374 (1936).

12

(c) Reply Brief. The appellani may file a brief in reply to
the brief of the appellee, and if the appellee has
cross-appealed, the appellee may file a brief in reply

to the response of the appellant to the issues
presented by the cross-appeal... .

(h) Briefs in Cases Involving Cross Appeals. If a cross
appeal is filed the plaintiff in the court below shall
be deemed the appellant for the purposes of this rule
and Rules 30 and 31, unless the parties otherwise
agree or the court otherwise orders, the brief of the
appellee shall contain the issues and argument
involved in his appeal as well as the answer to the
brief of the appellant.

Rule 31

(a) Time for Serving and Filing Briefs. The appellant
shall serve and file his brief within 40 days. . . . The
appellee shall serve and file his brief within 30 days
after service of the brief of appellant. . . .

Petitioners complied with these Rules. In striking Pe-
titioners’ Brief, the Court below patently violated them,
especially Rule 28. It vetoed Petitioners’ “brief of the
appellee” including their “‘answer to the brief of the ap-
pellant[s]” and their corrective restatement of Appellants’
issues. The unions’ and Defendants’ briefs do not contain the
entire “‘argument involved in the appeal’’ below, Petitioners’
“Brief for Intervenors-Appellees” contains many additional
arguments with respect to the first cause of action. To bar
Petitioners’ “‘issues and argument” and their “‘answer’’, as
did the Court below, is to truncate the appeal below and to
piecemeal it,’ to the prejudice of adequate consideration of

"Section 46(c) of the Judicial Code [“‘Cases and controversies shall
be heard and determined by a court or division of not more than three
judges. . .”] contemplates the entire “case” (as a proper judicial unit)
carried to appeal, not arbitrarily selected parts thereof. Congress and the

(continued)

13

the whole case.

Courts have a duty to comply with valid statutes, and
insofar as they do not comply, they lack authority and abuse
their discretion. La Buy v. Howes Leather Co., 352 U.S.
249 (1957).

The Court below, by striking Petitioners’ Brief, violated
the “usages and principles of lav.’ (28 U.S.C. § 1651). Until
this case, all courts of appeals have consistently accepted
briefs from intervenors*: No court has ever before rejected an
intervenor’s brief in circumstances analogous to those ob-
taining in this unique case. The Court below is, in this
respect, out of step with all other courts of appeals in the
United States. Goldlawr, Inc. v. Herman, 369 U.S. 456
(1962).

(footnote continued from proceeding page)

tradition of judicial administration forbid piecemeal litigation. Will v.
United States, 389 U.S. 90 (1967); Parr v. United States, 315 U.S. 513
(1956); Cobbledick v. United Stocks, 309 U.S. 323 (1940); Kerr v.
U.S. District Court, 426 U.S. 394, (1976); Roche v. Evaporated Milk

Ass’n., 319 U.S. 21 (1943); Bankers Life & Cas. Co. v. Holland, 34
U.S. 379 (1952).

*Ex parte Jordan, 94 U.S. 248 (1876); Gumbel v. Pitkin, 113 Picker
Min. & Smelting Co., 325 U.S. 335 (1944); and see Footnote numbered
Five (5), supra.

14

Ill. Abdication of Judicial Function By the Court of

Appeals.

In striking Petitioners’ Brief, the Court below pro tanto
abdicated its appellate judicial function. Rule 24, F.R.C.P.,
does not, in the circumstances, authorize it to give Inter-
venors less than the District Court in the proper exercise of
discretion gave them by an Order affirmed by the Court
below. The Judicial Code, 28 U.S.C. §46(c) required the
Court below to take, and it did take, the “case or contro-
versy’’, initiated by the notices of appeal. But it took only the
part of that “case or controversy” in which the original
parties were interested, to the utter neglect of Petitioners as
parties and as appellees. To the extent that it rejected
Petitioners’ Brief, there was an unauthorized renunciation of
appellate function.°®

The full panel of the Court below which on December 17,
1976, affirmed, unanimously and in all respects, the District
Court’s Order filed March 8, 1976 (allowing Petitioners to
intervene in this case) comprised Judges Bazelon, McKin-
non and Leventhal. The two-judge panel which unanimously
struck Petitioners’ Brief comprised Judges McGowan and
Leventhal.

None of the original parties at any time or in any way
challenged or sought review or reargument of the affirmance
of December 17, 1976. The time for review or reargument
had long since expired. Thus, the law of the case, firmly
established by the District Court and the Court below, is that
Petitioners are permissive intervenors (and therefore,
parties) to whom two courts explicitly gave the right to

*See, Connor v. Coleman, 425 U.S. 675 (1976); Ex parte Harley
Davidson Motor Co., 259 U.S. 414(1921); Ex parte Kawato, 317 U.S.
69 (1942).

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Se ee

15

submit “‘briefs on the legal questions extant”. (App. 53a.)'°
The two-judge pa: » -fiscated that right by the Order here
reviewed. Petitioners ea unable to discover any justification
for such appellate court procedure or any precedent dis-
closing similar conduct by any Court of Appeals.

IV. Impairment of Future Jurisdiction of This Court.

By striking Petitioners’ Brief, the Court below impaired or
frustrated the future appellate jurisdiction of this Court. It is
the function of Courts of Appeals, especially in cases which
(like this one) will inevitably be presented to this Court for
review, to prevent obstacles to this Court’sjurisdictionandto —
consider and to rule on all relevant legal issues, properly
raised below, which are likely to be considered by this Court.
McClellan v. Carland, 217 U.S. 268 (1909); Ex parte
Abdu., 247 U.S. 27 (1917); Re Buder, 271 U.S. 461 (1925);

See transcript of hearing by the District Cout on March 8, 1976
(App. 53a); transcript of the status hearing on April 26, 1977 (App. 41a
et seq.); Petitioners’ Notice of Appeal filed July 5, 1977 below in Docket
No. 77-1739 (App. 13a); the Court of Appeals’ Order filed September
26, 1977, which recognizes Petitioners’ status as appellants (App. 4a);
Plaintiffs’ Notice of Appeal filed July 1, 1977, in Docket No. 77-1766,
which designates Petitioners as Intervenors-Appellees (App. 19a);
Defendants’ Notice of Appeal filed July 15, 1977 in Docket No. 77-
1767 below, which also designates Petitioners as Intervenors- Appellees
(App. 6a and 9a); the Court of Appeals Order filed December 21, 1977
in Docket No. 77-1739, wherein the Court refers to plaintiffs’ motion to
strike the brief of the intervenors-appellees, grants that motion and
refuses, sua sponte, to allow Petitioners the right to submit its brief as
amicus curiae, (App. 32). Even plaintiff unions designated their motion
to strike the brief of Petitioners as a “Motion to Strike the Brief of
intervenors-Appellees”’, and later filed a “Reply Memorandum in
support of motion to strike the brief for Intervenors-Appellees”’.
[Emphasis supplied.] In short, Petitioners are recognized as appellees,
and as appellants.

16

United States Alkali Export Ass’n, Inc. v. United States,
325 U.S. 196, 202, 203 (1945). Only in this way can
intermediate appellate courts properly aid the future juris-
diction of this Court and present to it the fruits of full study
and consideration. The Order to which Petitioners object
obstructs complete consideration of this case on its merits."
No valid reason exists for refusal by the Court below to hear
Petitioners. Ex parte United States, 287 U.S. 241 (1932).

It is incumbent upon the Court below, both as the bridge
between district courts and this Court, or as the often final
appellate court, to obtain from all parties their studied
contentions concerning ai// relevant legal issues raised
below. This is a requirement of fairness of hearing.’*

"'The “Brief of Intervenors-Appellees” (stricken by the court below)
probed fifteen legal issues. These were classified, listed and numbered
in that Brief under the heading, “Statement of Issues Presented for
Review” (pp. 1-3). The first group of four issues was classified as
“Constitutional Issues” (p. 1). Only issue numbered “(1)” in that
Group I was covered (in different ways) by both Petitioners and the
original parties.

The second group of seven issues was denominated “Issues of
Statutory Construction” in Petitioners’ Brief. None of these was
addressed by either plaintiffs or defendants.

The third group of four issues was called by Petitioners “Factual
Issues” (pp. 2-3). Each of these is a legal question dealing with the
absence of substantial evidence in the record to support crucial
allegations in the first cause of action set forth in the Amended
Complaint. Defendants’ brief did cover three of these four legal, non-
constitutional issues.

"This Court has said:

*** The purpose of the judicial review is * * * to secure a just

result with a minimum of technical requirements * * *.

To allow intervention ***in the first appellate review
proceeding is to avoid “unnecessary duplication of proceedings’,

and to adhere to the goal of obtaining “a just result with a

(continued)

ee ee rt ee re mr meee =

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17

Unless this is done, the/Court below thwarts the possible
future jurisdiction of this Court by a determination which
fails to reflect adequate consideration of all substantial issues
in the case.

Furthermore, remand to the District Court, in the event
the constitutional arguments of the original parties fail,
would still be unnecessary, if Petitioners’ views on statutory
construction were to prevail. Petitioners differ emphatically
from Defendants, who, in their “Reply Brief for Defendants-
Appellees and in Support of their Cross-Appeal’’, seem to
argue that the only proper alternative to an affirmance based
on Defendants’ arguments is a remand. On the contrary,
Petitioners urge that affirmance on their arguments (not
made in any other brief in this case) is a valid alternative to
remand.

(footnote continued from proceeding page)
minimum of technical requirements.”’ * * *

Permitting intervention also insures fairness to the ***
intervenor. If intervention is permitted, the parties * * * are able to
present their arguments on the issues to a reviewing court which
has not crystallized its views. * ** the salient facts having been
resolved and the legal problems answered in this initial review,
subsequent litigation serves little practical value to the ***
intervenor. In the second appellate proceeding, the Court of
Appeals would almost invariably defer to the initial decision as a
matter of stare decisis * * *. [International Union, Local 289 v.
Scofield, 382 U.S. 205, 214 (1965).}

Thus, fairness requires that all parties be heard. Davis v. Merchantville
Trust Co., 152 U.S. 590 (1893); Shields v. Utah Idaho C.R. Co., 305
U.S. 177 (1938); Sung v. McGrath, 399 U.S. 33 (1949).

18

V. Petitioners’ Hobson’s Choice: Res Judicata
or Appeal.

Previously in this litigation, despite their status as Inter-
veners for limited purposes only, Petitioners had submitted
briefs on the legal questions extant in the first count of the
Complaint. Their participation had been guided by the
District Court’s Order permitting intervention, and the af-
firmance of that Order by the Court of Appeals. The recent
Order by the Court below striking Petitioners’ reply brief
and further limiting Petitioners’ role creates confusion
concerning the res judicata effect of this litigation on
Petitioners.

An intervenor is bound by future orders pertaining to the
matter for which intervention was originally permitted. The
intervenor must therefore appeal orders adverse to his
interests, and cannot merely amend his petition of interven-
tion to ask for additional relief. Commercial Electric Supply
Co. v. Curtis, 288 F. 657 (8th Cir. 1923), cert. den. 264
U.S. 709 (1923). The intervenor is subject to complete
adjudication by the federal court of the issues in litigation
between the intervenor and the adverse party. Alexander v.
Hillman, 296 U.S. 222 (1935).

This is not a case in which the petitioner seeks to
participate in an appeal simply to establish a precedent
applicable to itself, as in Boston Tow Boat Co. v. U.S., 321
U.S. 632 (1944). Here, the effect of the litigation upon
intervenor is not simply stare decisis, but res judicata.
Therefore, the interest of Petitioners is comparable to that of
the intervenor union in Fishgold v. Sullivan Drydock and
Corp., 328 U.S. 275 (1946), where this Court’s interpre-
tation of a collective bargaining agreement was final and
binding. The interpretation of §101(a)(4) of the LMRDA

A Ee

RO ee ee — ee

19

[29 U.S.C. §411(a)(4)] by the Court below will bind
intervenors, as well as plaintiffs and defendants. Individuals
financed by the Defendant Foundation are threatened with
loss of that support if the Court of Appeals reverses the
District Court decision. Thus, Petitioners meet the definition
of an “aggrieved party’’, entitled to participate in an appeal of
the lower court’s decision. See, SEC v. U.S. Realty and
Improvement Co., 310 U.S. 433 (1940); Port of New York
Authority v. Baker, Watts and Co., 129 U.S. App. D.C.
173, 392 F.2d 497 (1968). If their participation is pro-
hibited by a revised interpretation of the scope of their
intervention, Petitioners will be denied the hearing funda-
mental to adjudication of their interest, and yet be bound by
the result.

VI. Violation of Procedural Due Process by the Court
of Appeals.

In foisting this Hobson’s choice upon Petitioners, and in
faling to allow compliance with Rule 28 and Rule 31,
F.R.A.P., the Court of Appeals violated the procedural due
process required by the Fifth Amendr at to the United
States Constitution. This Court has often ruled that parties
aggrieved by governmental action are constitutionally en-
titled to be heard meaningfully: “‘at a meaningful time and in
a meaningful manner”. Armstrong v. Manzo, 380 U.S. 515,
552 (1965). Petitioners were denuded_of_their right as
parties-appellees to be heard on the merits of the unions’
appeal. Petitioners’ Brief was stricken, not on the merits, but
arbitrarily and summarily by sheer non-compliance with the
F.R.A.P. and by anullment of the District Court’s affirmed
Order (App. 49a) granting Petitioners the right to brief this

20

important case. Thus, a “substantial, basic and undecided
question” is here presented. Schlagenhauf v. Holder, 379
U.S. 104 (1964). In a “case or controversy” under 28
U.S.C. §46(c), no party or intervenor can be heard
effectively except by brief. To punish Petitioners, by striking
their Brief, for doing what the law allows is patently undue
process. North Carolina v. Pearce, 395 U.S. 711 (1969).

Moreover, once the Court of Appeals filed its Order
affirming, on December 17, 1976 (App. 49a), the District
Court’s Order of March 8, 1976 (allowing Petitioners to
become intervenors), any reversal, modification or partial
nullification of that District Court’s Order (App. 51a)
became a matter beyond the appellate jurisdiction of the
Court below, since Plaintiff Unions had failed or refused to
appeal from the District Court’s grant of permissive inter-
vention to Petitioners. When the Court below issued its
Order of December 21, 1977, it exercised unauthorized
jurisdiction. De Beers Consol. Mines, Ltd., 325 U.S. 212
(1944); Will v. United States, 389 U.S. 90 (1967). At the
very least, the Court below failed to remain within its
prescribed jurisdiction as an appeliate Court.’’

In re Chetwood, 164 U.S. 443 (1897); Roche v. Evaporated Milk
Assn., 319 U.S. 21, 26 (1943); United States Alkali Export Ass’n., 325
U.S. 196 (1945); Re Winn, 213 U.S. 458 (1908); Re Buder, 271 U.S.
461 (1925).

It should also be noted that the Court below in effect censored
Petitioners’ Brief out of appellate consideration, thus violating free
speech and free access to the courts, both rights protected by the First
Amendment.

Sh el el A tt

. tt nln ee a nc

PB eet Uw eee +

21

VIL. Petitioners Have No Remedy Except By This
Petition.

No appeal to the Court of Appeals is possible under the
Order of that Court (App. 3a). There is no appeal from a
court’s non-compliance with statute. Petitioners’ Motion for
Rehearing by that Court was duly made and deined (App.
la).Even if arguendo, appeal were possible, it would be
valueless, because thé Court below has, in effect, snuffed
out Petitioners’ arguments and issues at the very threshold
and before Petitioners could utter meaningful appeal on
the merits of the legal case which Petitioners can make
against the first cause of action in the Amended Com-
plaint. McClellan v. Carland, 217 U.S. 268 (1909). The
Court below having disregarded Petitioners’ rights as
parties, the abuse of discretion is so aggravated and the
absence of remedy is so obvious as to warrant the extra-
ordinary writ which Petitioners seek. De Beers Consolidated
Mines, Ltd. v. United States, 325 U.S. 212 (1945).

Because the Court below has at no time written an opin-

- ion concerning Petitioners, the latter approached the writing

of their papers for their motion below for rehearing with
the frustration and thwarted importunity of the protagonist
in Franz Kafka’s novel, The Castle. They could then dis-
cover no rationale which justified the striking of their
Brief. They are even more in that same quandrary after
writing this Petition and after researching the relevant cases.

22

CONCLUSION

For the foregoing re

asons, Petitioners’ Motion for Is-

suance of a Writ of Certiorari should be granted to review the

Orders aforesaid of the

United States Court of Appeals for

the District of Columbia Circuit. Should this Court consider

Petitioners’ request for

extraordinary relief unnecessary,

Petitioners respectfully pray that this Petition be treated as a
petition for certiorari under the ruling made in Head vy.
California, 374 U.S. 509 (1963).

Dated: April 24, 1978

Respectfully submitted,

GODFREY P. SCHMIDT
Suite 1606

654 Madison Avenue

New York, New York 10021
(212) 371-7290

GLENN H. CARLSON

Perito, Duerk and Carlson, P.C.*
Suite 1200

1001 Connecticut Avenue, N.W.
Washington, D.C. 20036 (¢
(202) 659-8300

Attorneys for Movants/Petitioners

ee

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0777%3A1. Public record. Not legal advice.