# Opposition — Greyhound Corp. v. Mt. Hood Stages, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 831

## Text

MAY 30

[ICHAEL RODAK,

Riproins Uoun, 4 &
FILED
1980 !

JR., CLERR

In the Supreme Court

OF THE

United States

Octosrer Term, 1980

No.

THE GREYHOUND CoRPORATION AD Grasegogp Eng Inc.,

Petitioners,

VS.

Mr. Hoop Sraazs, Inc.,
doing business as Paciric TraiLways,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT
OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT

Micuaeut N. Kyovurie
EvuGENE C, Crew
THoMAS P’ NE

JOEL LINZNER

One California Street
San Francisco, California 94111

Bruce MacGrecor Hau
300 Jackson Tower,
Portland, Oregon 97205,

Counsel for Respondent

Broap, Kuourre & Scuvutz,
One California Street, 14th Floor
San Francisco, California 94111

Of Counsel.

BOWNE-PERNAU WALSH ¢ 1045 SANSOME ST. © S.F., CA 94111 © (415) 981-7882

TABLE OF CONTENTS

Page
0 Een rer be rind Ve soeerer eye eo eer ee 1
Statutes involved ........ PENSE TON ey eS eye eek 1
SR eae Peery ace ee Rae ree 1
NE I cng icy egret ik sa dno: acs Fea ek 4
ee Ser eee 8

I. The Court of Appeals’ decision a erly applied the equi-
table doctrine of tolling as defined by this court ....... 8

A. The Court of Appeals’ decision accords with Johnson v.
Railway Express Agency ........................0, 12

B. The Court of Appeals’ decision presents no conflict with
decisions of the Second Circuit ..................... 15

C. The Court of Appeals’ decision is not in conflict with
Carnation Co. v. Pacific Westbound Conference ..... 17

D. Greyhound’s other contentions do not warrant review
by this court ....... 18

II. The Court of Appeals’ decision did not violate Grey-
hound’s constitutional rights ..... .............. 0005. 20

III. The interest questions raised by Greyhound are not
oo Rr ae ree ern 22

A. The Court of Appeals properly awarded interest from
the date of the original judgment ........... ..... 22

B. The Court of Appeals properly awarded interest on at-
gk LOT SARE Ne cae eee ee ee rain Caer 24
RR RES ANTE rti aeabeae a aaPaPa oor SPA ean eC 25

Appendix

il

TAPLE OF CASES

American Pipe & Construction Co. v. Utah, 414 U.S. 538
¢.: | Pr. Sov tee er 9, 12, 17, 19, 20, 21
Ashland Oil, Inc. v. Phillips Petroleum Co., 554 F.2d 381 (10th
Cin MOTT) (ew CONE) oe a ee 16

Ashland Oil, Inc. v. Phillips Petroleum Co., 607 F.2d 335 (10th
Cir. 1979), cert. denied, 48 U.S.L.W. 3538 (1980) ......... 23

Billings v. Chicago, R.I. & P.R. Co., 581 F.2d 707 (8th Cir.
BOFGD cai vcs oe ek en ce eee +5 5

Board of Regents v. Tomanio, .. U.S. .. (May 19, 1980) .... 12

Briggs v. Pennsylvania R. Co., 334 U.S. 354 (1948) ........ 23

Burnett v. New York Central Railroad Co., 380 U.S. 424 (1965)
Evie bivariate Rae rae pare ene eae 9, 12, 16, 17, 19, 21

Carnation Co. v. Pacific Westbound Conference, 336 F.2d 650
(9th Cir. 1964), reversed, 383 U.S. 213 (1966) ........... 11, 18

Carnation Co. v. Pacific Westbound Conference, 383 U.S. 213
CTR) ore i i i a ee eee 17

Carpa, Inc. v. Ward Foods, Inc., 567 F.2d 1316 (5th Cir. 1978 ) -
ab ev 8 ace 0:8 wd veh whew klipd bane ae re ae 24,

Central Transfer Co. v. Terminal R. Assoc., 288 U.S. 469
TUBE ioe cen ce Se 10

City of Detroit v. Grinnell Corp., 575 F.2d 1009 (2d Cir. 1978)
EU dvsile v sierasese nyt bah GASSES ae a dee ena 23, 25

Dartt v. Shell Oil Co., 539 F.2d 1256 (10th Cir. 1976) affd by
equally divided court, 434 U.S. 99 (1977) ................ 16

Dawson v. Contractors Transport Corp., 467 F.2d 727 (D.C.
CO RD) 2 igo i shies 30s pes ed ae ee ee 20

Denver & R.G.W.R. Co. v. United States, 387 U.S. 485 (1967) 14

Far East Conference v. United States, 342 U.S. 570 (1952)
sa Wsdlw in neg, Ron N ARINC Sale ER a 10, 11, 17

Feldman v. Allegheny Airlines, Inc., 452 F.Supp. 151 (D. Conn
DPR cic ev ee ee 23

Glus v. Brooklyn Eastern Terminal, 359 U.S. 231 (1959) .. 19, 20
Great Northern Ry. v. Merchants Elevator Co., 259 U.S. 285

CORED ove ete Lee Cet eee ieee 11, 17
Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322 n. 21
EPID mite pots cd ces Sk se a ie ee 3, 6, 12, 14, 20
Greyhound Corp. v. United States, 370 F.Supp. 881 (N.D. II.
FG oo nice a on PV nd pe eee ee 2,6
Greyhound Lines, Inc. v. United States, 308 F.Supp. 1033
(N.D. UL. 1970) hare 6:2 ni Ras ee nee ei 2,5
Greyhound Lines, Inc. v. United States, 301 F. Supp. 356 (N.D.
aaa rae 2

Harris v. Chicago Great Western Ry,, 197 F. od 829 (7th Cir,
| Nr re Pare SG terre ricer wens 25

iii

TABLE OF CASES

Page

Holmberg v. Armbrecht, 327 U.S. 392 (1946) ..............19, 20

Hysell v. lowa Public Service Co., 559 F.2d 468 (8th Cir. 1977) :
SS ee 2

Inland Credit Corp. v. M/T Bow Egret, 556 F.2d 756 (5th Cir.
ee NO Gio ke See wee eee 23

Johnson v. Railway Express Agency, Inc. 421 U.S. 454 (1975)
EE 9, mt 12, 13, 15, 17, 21

Ee il 22
Leigh v. McGuire, 613 F.2d 380 (2nd Cir. 1979) .. ........ 16
Lew Wenzel & Co. v. London Litho Supply Co., 563 F.2d 1367

ES 22, 25

Mascuilli v. United States, 383 F.Supp. 50 (E.D. Pa. 1974) ... 23
Meyer v. Frank, 550 F.2d 726 (2nd Cir. 1977), cert. denied 434
U.S. 830 (1977) ts ROIS Stata ara 15, 16

Mt. Hood Stages, Inc., Petition for Modification—Greyhound
Mergers (Western Mergers), 104 MCC 449 (1968) ...2,4,5,14

Mt. Hood Stages, Inc. v. Greyhound Corp., 616 F.2d 394 (9th

ee os ca have ws wens so aucsoueseas 2
Mt. Hood Stages, Inc. v. The Greyhound Corp., 1979-1 CCH
Trade Cases, 62, 446 (D. Ore. 1979) ................... 2
Mt. Hood Stages, Inc. v. Greyhound Corp., 437 U.S. 322 | 1978)
ere ee 2, 7, 14, 16
Mt. Hood Stages, Inc. v. Greyhound Corp., 555 F.2d 687 n.
OE A ate 7, 8, 14, 15, 19
Mt. Hood Stages, Inc. v. The Greyhound Corp., 1973-2 CCH
Trade Cases, { 74,824 (D. Ore. 1973) .................... 2
Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41 (1938)
es SW Gh yg cds etc eke cee te eee ane 11

Ohio-Sealy Mattress Mfg. Co. v. Sealy, Inc., 585 F.2d 821 (7th
Cir. 1978), cert. denied, 47 U.S.L.W. 3556 NE ees es ws 23

.Order of Railroad Telegraphers v. Railway Express Agency,
ES

Perkins v. Standard Oil Co., 399 U.S. 222 (1970) ............ 22

Perkins v. Standard Oil Company of California, 487 F.2d 672
eT ne Ree 22, 24

Pesola v. Inland Tool & Mfg., Inc. 423 F.Supp. 30 (E. D. Mich.
NS RIS GES gt Oe 12, 16

Premier Corp. v. Serrano, 471 F.Supp. 444 (S.D. Fla. (1979) .. 23

Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188 (6th Cir.
ae 95

Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924
yg kde ae eevee 16

lv

TABLE OF CASES

Page
Ross v. Bernhart, 396 U.S. 531 (1970) ..................... 20
Segal v. A.T. & T., 606 F.2d 842 (9th Cir. 1979) ............, 11,18
Skou v. United States, 526 F.2d 293 (5th Cir. 1976) ...... .. 23
Smith v. American President Lines, Ltd., 571 F.2d 102 (2nd
Ce. Te. Gee eer reer tein eka bance eae eet 16
Spartan Grain & Mill Co. v. Ayers, 581 F.2d 419 (5th Cir.
oS Re Sa ey Oe erent eee dR II Ser teald er ievbale a Le 23
Strickland v. Johns-Manville International Corp., 461 F.Supp.
Oe IE nc ne acl n UER Cee ae nlk es 13
United States v. E. I. duPont DeNemours & Co., 331 U.S. 377
E.G rperconannes tren ai Nr Wiles hoor mem aa wm 16
me States v. The Greyhound Corp., 508 F.2d 529 (7th Cir,
| LE ERO LER eb PAE eed welt Re eee 26
United States V. . The Greyhound Corporation, 363 F.Supp. 525
45 OB. rer ee ray cc ire oe ee 2,6
United States v. Michael Schiavone & Sons, Inc., 450 F.2d 875
Ce EE cits nn here be net oo hare een 23
U.S. v. Western Pacific R. Co., 352 U.S. 59 (1956) ........ 13, 19
United States v. Woodbury, 359 F.2d 370 (9th Cir. 1966) .... 16
United States Navigation Co. v. Cunard Steamship Co., 284
ih eS | Be rey ae rer eer eee 11,17
West v. Devitt, 311 F.2d 787 (8th Cir. 1963) ................ 20
Williams v. Walsh, 558 F.2d 667 (2nd Cir. 1977) ........... 16
Woods Exploratidn& Producing Co., Inc. v. Aluminum Co. of
America, 509 F.2d 784 (5th Cir. 1975) .....0..0.......04. 23
STATUTES
Clayton Act § 4 (15 U.S.C. §15) ........... ERA TY e 3
Clayton Act §5(i) (15 U.S.C. §16(i)) ................... 3, 6,7
Ciayton Act §16 (15 U.S.C. § 26) ...... 1, 2, 5, 10, 11, 14, 16, 18, 21

Judicial Code § 1981 (28 U.S.C. § 1981) ............ 1, 13, 24, 25

In the Supreme Court

OF THE

United States

OcroBer TrRM, 1980

No.

THE GREYHOUND CORPORATION AND GREYHOUND Linzs, INC.,
Petitioners,

VS.

Mr. Hoop Sraazs, Inc.,
doing business as Paciric TrarLways,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT
OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT

OPINION BELOW

The opinion of the Court of Appeals (App. A to Peti-
tion), affirming the decision of the District Court (App. D
to Petition), is reported at 616 F.2d 394.

STATUTES INVOLVED

Section 16 of the Clayton Act (15 U.S.C. §26) and
§ 1981 of the Judicial Code (28 U.S.C. § 1981).

QUESTIONS PRESENTED
1. As this Court, the Ninth and Seventh Circuit Courts
of Appeal, the District Courts of Oregon and Illinois and
the Interstate Commerce Commission have all recognized,
Greyhound pursued a deliberate program to destroy Mt.

2

Hood throughout the 1950’s and 1960’s.1 Greyhound’s can-
cellation of the joint through bus and severance of connec-
tions with Mt. Hood in July 1964 was the culmination of
this destructive campaign. Title 15 U.S.C. § 26 prohibited
Mt. Hood from seeking an injunction in the District Court
against Greyhound’s predatory behavior. Moreover, in
1964, the doctrine of primary jurisdiction as enunciated
by this Court and the Ninth Cireuit would have required
a District Court to dismiss an action for damages pending
disposition by the ICC of Mt. Hood’s claims against
Greyhound:

Was the statute of limitations properly tolled pursuant
to the doctrine of equitable tolling when Mt. Hood com-
menced its action before the ICC (a) to prevent Grey-
hound’s predatory conduct and (b) to invoke the ICC’s

primary jurisdiction to determine whether Greyhound’s
| predatory conduct was approved and therefore exempt
from the antitrust laws or was disapproved and therefore
subject to the antitrust laws?

2. This Court has declared that a federal statute of
limitations should be tolled if it will promote important

1Mt. Hood Stages, Inc., Petition for Modification—Greyhound
Mergers (Western Mergers), 104 MCC 449, 464 (1968); Grey-
hound Lines, Inc. v. United States, 301 F.Supp. 356 (N.D. Ill.
1969); Greyhound Lines, Inc. v. United States, 308 F.Supp. 1033
(N.D. Ill. 1970); United States v. The Greyhound Corporation, 363
F.Supp. 525 (N.D. Ill. 1973); The Greyhound Corp. v. United
States, 370 F.Supp. 881 (N.D. Ill. 1974); United States v. The
Greyhound Corp., 508 F.2d 529 (7th Cir. 1974); Mt. Hood Stages,
Inc. v. The Greyhound Corp., 1973-2 CCH Trade Cases, { 74,824
(D. Ore. 1973); Mt. Hood Stages, Inc. v. The —— Corp.,
437 U.S. 322 (1978); Mt. Hood Stages, Inc. v. The Greyhound
Corp., 1979-1 CCH Trade Cases, { 62,446 (D. Ore. 1979); Mt.
Hood Stages, Inc. v. The Greyhound Corp., 616 F.2d 394 (9th Cir.
1980) (App. A).

a

3

federal policies without frustrating the statute of limita-
tions’ policy of repose. Hence in every case in which
equitable tolling has been invoked, the court sitting as
chancellor—not a jury—decided whether equitable tolling
should apply in accordance with this Court’s standard:

Was it constitutionally proper for the lower court—
rather than a jury—to decide the equitable tolling question? _

3. The original judgment was entered on a jury verdict
in May 1973. [R. 2248-9] Approximately one-third of that
judgment depended upon tolling the statute of limitations
as a result of (a) Greyhound’s fraudulent concealment
of its violations from 1953 to 1960 and (b) application of
§5(i) of the Clayton Act. In June 1978, this Court held
that §5(i) was not applicable but left intact that portion
of the judgment for damages which accrued within the
limitations period. This Court remanded the case for
consideration of Mt. Hood’s alternative equitable tolling
claim. Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S.
322, 337 n. 21 (1978). On remand, the original judgment
was reinstated in its entirety [R. 3570-71]:

Was the Court of Appeals correct in holding that
Mt. Hood was entitled to recover interest from the date
the original judgment was entered in May 1973?

4, Title 28 U.S.C. § 1961 provides that “interest shall
be allowed on any money judgment in a civil case recovered
in a district court.” Section 4 of the Clayton Act (15 U.S.C.
§ 15) provides that a successful antitrust plaintiff shall
recover “the costs of suit including a reasonable attorney’s
fee.” Pursuant to those statutes, the District Court entered

an amended judgment in December 1973, incorporating

4

the amount of the jury verdict and a reasonable attorney’s

fee [R. 3271-3]:

Is Mt. Hood entitled to interest on the entire “money
judgment,” including that portion of the judgment con-
sisting of attorney’s fees, as provided by law?

STATEMENT OF THE CASE

During the period 1947-54, Greyhound acquired control
of eight bus companies which operated in the Pacific
Northwest and had routes connecting with Mt. Hood.
Mt. Hood protested those acquisitions in the Interstate
Commerce Commission (“ICC”) because Mt. Hood feared
that if the acquisitions were approved, Greyhound could
“longhaul” passengers around Mt. Hood’s shorter bridge
routes so as to deprive the public of the most convenient
service and cause serious harm to Mt. Hood. In response
to Mt. Hood’s protests, Greyhound’s top executives assured
the ICC under oath that Greyhound would not longhaul
passengers over its circuitous routes; that Greyhound
would quote Mt. Hood’s direct service and _ publish
Mt. Hood’s schedules in its folders; and that Greyhound
would continue the joint through bus arrangement with
Mt. Hood.? The Court of Appeals described what happened
thereafter:

“Relying upon Greyhound’s representations, the Com-
mission approved the acquisitions. After encircling
Mt. Hood, Greyhound with the purpose of driving
Mt. Hood out of business, did exactly what it repre-
sented to the Commission it would not do: Greyhound

eancelled the through-bus connection, scheduled con-
necting services to preclude reasonable connection

2Mt. Hood Stages, Inc., 104 MCC 449, 459-63 (1968), quoted in
this Court’s opinion, Greyhound Corp. v. Mt. Hood Stages, Inc.,
437 U.S. 322, 325-26 (1978).

5)

with Mt. Hood, caused ticket agents to direct traffic
over Greyhound’s longer routes, and interfered with
the distribution of Mt. Hood’s schedules and the quota-
tion of its rates and services.” (App. A, p. 5)

_ Contrary to its assurances to the ICC, Greyhound broke
connections with Mt. Hood on July 6, 1964. Because
Mt. Hood was then surrounded by Greyhound and thus
substantially dependent upon Greyhound for passengers,
Greyhound’s actions threatened imminent destruction of
Mt. Hood’s business. On October 7, 1964, after Greyhound
had refused Mt. Hood’s pleas to restore connections,
Mt. Hood petitioned the ICC for injunctive relief.* The
Antitrust Division of the Department of Justice inter-
vened “to ensure the adequate consideration of the anti-
trust issues” raised by Mt. Hood’s petition. [R. 1374]
Following a trial in 1966-67, the ICC (Division Three) on
April 5, 1968, affirmed the Hearing Examiner’s report that
Greyhound’s practices constituted “destructive competi-
tion,” were “not consistent with the public interest,” were
“inconsistent with the representations made in various
[acquisition] proceedings” and “were inspired by a desire
to stifle competition” and “injure or destroy Mt. Hood.”
Mt. Hood Stages, Inc., 104 MCC 449, 459-63.

Promptly thereafter, on July 5, 1968, Mt. Hood com-
menced this action for damages.* [R. 1] As this Court and

8Mt. Hood was precluded from seeking injunctive relief under
the antitrust laws in a federal district court by reason of 15 U.S.C.
§ 26.

‘While Mt. Hood was prosecuting this action, C: yhound was
resisting the ICC’s cease and desist orders. A three iadge District
Court in Chicago affirmed the ICC’s orders and ,,-: ated the gov-

ernment’s request for an injunction prohibiting Greyhound from
continuing its predatory behavior. Greyhound Lines, Inc. v. United
States, 308 F.Supp. 1033 (N.D. Ill. 1970). Nonetheless, Greyhound

6

the Court of Appeals observed previously, the allegations

in Mt. Hood’s antitrust complaint and its ICC petition

were essentially the same. 437 U.S. at 326-7:
“Both claims rested upon the same conduct: [Grey-
hound’s] acquiring encircling routes, canceling the
joint through-bus and directing passengers over
Greyhound’s circuitous routes rather than Mt. Hood’s
direct route, all with the purpose and effect of elimi-
nating Mt. Hood as a competitor.” (App. A, p. 12)

On May 2, 1973, following a five week trial, the jury found
that Greyhound’s conduct violated §§$1 and 2 of the
Sherman Act and that Mt. Hood had sustained damages of
$4,382,030 during the period January 1, 1953 to March 25,
1973. [R. 2248-49]

Prior to trial, the District Court ruled that §5(i) of
the Clayton Act (15 U.S.C. §16(1)) had tolled the period
of limitations from December 14, 1964, the date the
Department of Justice intervened in the ICC proceeding.
[R. 1854-57] After trial, on the basis of special interroga-
tories posed to the jury, the District Court also held the
statute of limitations had been tolled during the period
January 1, 1953 to December 15, 1960 by reason of Grey-
hound’s fraudulent concealment of its antitrust violations.
[R. 2248-49] Thus Mt. Hood was permitted to recover
damages sustained during the entire period of Greyhound’s
unlawful conduct.

“displayed a contemptuous reluctance to even commence compli-
ance with the Court’s order” and in June, 1973, the District Court
in Chicago found Greyhound guilty of criminal and civil contempt
for willful disobedience of the court’s order. United States v. Grey-
hound Corp., 363 F.Supp. 525, (N.D. Ill. 1973); 370 F.Supp. 881,
§84 (N.D. Ill. 1973). The District Court’s judgment was affirmed by
the Seventh Circuit. United States v. The Greyhound Corp., 508
F.2d 529 (7th Cir. 1974)

7

In opposition to Greyhound’s motion for judgment NOV
and for a new trial, Mt. Hood contended the doctrine of
equitable tolling—in addition to §5(i)—suspended the
statute of limitations while Mt. Hood was prosecuting
its claims against Greyhound before the ICC. [R. 2653-59]
In denying Greyhound’s motions, the District Court did
not address the equitable tolling issue. [R. 2874-81] On
appeal, the Ninth Circuit did not reach Mt. Hood’s equit-
able tolling claim either since §5(i) was deemed sufficient
to toll the statute. Mt. Hood Stages, Inc. v. Greyhound
Corp., 555 F.2d 687, 701, n. 34 (9th Cir. 1977). Greyhound
petitioned for certiorari and, with reference to equitable
tolling, specifically requested this Court to “grant certi-
orari to afford the matter full consideration.” (Reply Brief
in Support of Petition for Writ of Certiorari, at p. 10)
This Court granted certiorari and held that §5(i) was
not applicable, but declined to consider the equitable tolling
issue: “[W]Je see no compulsion—indeed, no justification—
for our reaching this distinct issue.” 437 U.S. at 337 n. 21.

On remand, the trial judge invited the parties to supple-
ment the trial record with evidence relevant to the equit-
able tolling issue and requested that counsel make offers
of proof. [R. 3342] Except for the conclusory declarations
of two Greyhound lawyers speculating how they might
have employed a different strategy in their defense of the
ICC and court litigation, Greyhound made no such offers
of proof. [R. 3392, 3396] Nor did Greyhound demand the
issue be resolved by a jury. The trial judge was “satisfied
that the record presently before [it] is adequate to answer
any factual questions that remain to be decided in the
equitable tolling issue” [R. 3469], “reviewed parts of the

8

transcript with some care” [R. 3470] and resolved that
issue in favor of Mt. Hood. [R. 3563-9] A third amended
judgment was entered in the same amount as the original
judgment with interest on attorney’s fees from the date
they were awarded. [R. 3570-71] The District Court also
denied Greyhound’s second motion for a new trial.
[R. 3569]°

Acknowledging the long delay in the resolution of this
action, the Court of Appeals heard oral argument after
an expedited briefing schedule in May, 1979. Although
only two questions had been remanded by the Court of
Appeals for decision by the District Court [R. 3334-5],
Greyhound raised five issues in the Court of Appeals.
Chief Judge Browning and Circuit Judges Wright and
Kennedy unanimously affirmed the trial judge in all
respects. Greyhound now petitions this Court for a second
writ of certiorari.

REASONS FOR DENYING THE WRIT

I. THE COURT OF APPEALS’ DECISION PROPERLY
APPLIED THE EQUITABLE DOCTRINE OF TOLL-
ING AS DEFINED BY THIS COURT

The Court of Appeals’ decision—unanimously affirming
the District Court’s application of equitable tolling to
the particular facts here—rests solidly upon Supreme
Court precedent. This Court has recognized on several
occasions that a statute of limitations should be tolled
on equitable grounds if important federal policies will be

‘Greyhound’s first motion for a new trial was filed in 1973 and
denied by the trial court [CT 2256-60; 2880]. That denial was
affirmed on appeal. 555 F.2d 687. Certiorari was not sought on this
issue in Greyhound’s earlier petition to this Court, nor is it being
sought now.

9

served without frustrating the statute of limitations’ pol-
icy of repose. Burnett v. New York Central Railroad Co.,
380 U.S. 424, 427 (1965), the seminal decision on this
subject, prescribed the standard for the lower courts to
follow in determining whether equitable tolling should
apply: the courts must consider “the purposes and policies
underlying the limitations provision, the Act itself, and
the remedial scheme developed for the enforcement of
rights given by the Act.” Applying the Burnett standard,
this Court in American Pipe & Construction Co. v. Utah,
414 U.S. 538, 556 (1974) held that an improper class action
nonetheless tolled the statute of limitations for all pur-
ported class members because tolling fostered “efficiency
and economy of litigation” in the federal courts. While
tolling was denied in Johnson v. Railway Express Agency,
Inc., 421 U.S. 454, 466 (1975), this Court there declared
the statute of limitations should be tolled whenever there
is “a substantial body of relevant procedural law to guide
the decision” and “a significant underlying federal policy
that would have conflicted with a decision not to suspend
the statute.”

Both courts below applied the Supreme Court standard
and found that, on the discrete facts of this case, tolling
should apply. In accordance with Burnett, American Pipe
and Johnson, the Court of Appeals carefully analyzed the
“remedial scheme” developed by Congress and the Supreme
Court for the orderly enforcement of the antitrust laws
against carriers regulated by the Interstate Commerce
Commission. That analysis revealed precisely what this
Court in Johnson declared was a prerequisite to equitable
tolling. “a substantial body of federal procedural law to

10

guide the decision” and “a significant underlying federal
policy that would have conflicted with the decision not to
suspend the statute.” (421 U.S. at 466) That “federal pro-
eedural law” and “federal policy” deemed so important
in Johnson are embodied in $16 of the Clayton Act (15
U.S.C. § 26) and the Supreme Court doctrine of primary
jurisdiction.

When Greyhound severed connections with Mt. Hood on
July 6, 1964, threatening Mt. Hood with the destruction of
its business, Mt. Hood had no choice of forum. It had to
go to the ICC. It could not go to the District Court. As a
matter of law, prior resort to the ICC was (1) essential to
the preservation of Mt. Hood’s business from destruction
by Greyhound and (2) a condition precedent to the mainte-
nance of Mt. Hood’s subsequent court action for restitution.
First: Section 16 of the Clayton Act prohibited Mt. Hood
from obtaining a federal court injunction against Grey-
hound’s antitrust violations.° The Court of Appeals recog-
nized that “Mt. Hood could secure an order restraining
Greyhound’s predatory practices only by petitioning the
ICC, as it did.” (App. A, p. 9) Second: The doctrine of
primary jurisdiction as enunciated by this Court and the
Ninth Cireuit in 1964—the year Mt. Hood had to act to
preserve its business from destruction and preserve its
damage claim from the limitations bar—mandated that a
simultaneous damage action be dismissed. Far East Con-

*The policy behind that statutory prohibition was stated by this
Court in Central Transfer Co. v. Terminal R. Assoc., 288 U.S. 469,
475 (1933): “Its obvious purpose is to preclude any interference
by [court] injunction with any business or transactions of inter-
state carriers of sufficient public significance and importance to be
within the jurisdiction of the Commission.”

11

ference v. United States, 342 U.S. 570 (1952) ; United States
Navigation Co. v. Cunard Steamship Co., 284 U.S. 474
(1932), Carnation Co. v. Pacific Westbound Conference,
336 F.2d 650 (9th Cir. 1964), reversed, 383 U.S. 213 (1966).

Surely the statute of limitations should not run on an
action that would be dismissed if brought. Yet that is the
gravamen of Greyhound’s petition for certiorari. A com-
plaint for injunctive relief against Greyhound certainly
would have been dismissed pursuant to 15 U.S.C. § 26. A
complaint for damages against Greyhound, just as cer-
tainly, would have been dismissed pursuant to the doc-
trine of primary jurisdiction. In 1964, relying upon this
Court’s decisions in Cunard and Far East, the Ninth Circuit
affirmed the dismissal of plaintiff’s antitrust damage action
pending ageney determination of matters within its pri-
mary jurisdiction so as to avoid conflict between the regu-
latory and antitrust regimes. Carnation, supra, 336 F.2d
650.7 In plain terms, the Ninth Cireuit ruled the District
Court “was without jurisdiction to proceed.” 336 F.2d at
653 and 667 n. 32. See, Segal v. A.T.€T., 606 F.2d 842, 845
(9th Cir. 1979). By commencing its ICC action in 1964
and not commencing a simultaneous damage action, Mt.
Hood acted in accordance with governing law.

This twelve-year old case does not warrant another
review by the Supreme Court. The Court of Appeals’ deci-

7See Cunard, supra, 284 U.S. at 481 (“a remedy must be sought
from the commission before the jurisdiction of the courts could be
invoked.”); Far East, supra, 342 U.S. at 574 (agency had “exclusive
preliminary jurisdiction” of the matter); Great Northern Ry. v.
Merchants Elevator Co., 259 U.S. 285, 292 (1922) (“The prelimi-
nary determination must be made by the Commission; and not until
this determination has been made can a court take jurisdiction of
the controversy.”) Cf. Myers v. Bethlehem Shipbuilding Corp., 303
U.S. 41, 50-51 (1938) (administrative remedies must be exhausted
prior to resort to the courts for judicial relief) (emphases added).

12

sion conscientiously applied this Court’s equitable tolling
precedents to the historical facts presented here. The ICC
action adhered to the “remedial scheme developed for the
enforcement of rights” as prescribed by Burnett. It pro-
moted “litigative efficiency and economy” as certainly as
did the improper class action in American Pipe. It com-
plied with “the substantial body of relevant procedural law”
deemed so important in Johnson. Greyhound might dis-
agree with the lower court’s exercise of its equity juris-
diction by applying the equitable doctrine of tolling to the
particular facts presented to it.6 But that cannot justify a
writ of certiorari.

A. The Court of Appeals’ Decision Accords With Johnson
v. Railway Express Agency

Johnson recognized that a statute of limitations would
be tolled by agency proceedings if some “body of federal
procedural law” or “significant federal policy” would be
served thereby. (421 U.S. at 466) Tolling was denied in
Johnson because those considerations—clearly present here
—were absent there. In Johnson, commencement and prose-
cution of an EEOC proceeding under Title VII “[were] not
prerequisities for the institution of a § 1981 action.” (421
U.S. at 460) Here, by virtue of primary jurisdiction law as
it stood in 1964, Mt. Hood had to obtain favorable ICC
rulings as a “prerequisite” to its later damage action.’ In

8As Chief Justice Burger declared on Greyhound’s prior appeal:
“The authority of a federal court, sitting as chancellor, to toll
a statute of limitations on equitable grounds is a well established
part of our jurisprudence.” 437 U.S. at 338.

*See f.n. 7, supra. See Court’s discussion in Board of Regents v.
Tomanio, .. U.S. .. (decided May 19, 1980); see also Pesola v.
Inland Tool & Mfg., Inc., 423 F Sup . 30, 32 n. 2 (E.D. Mich.
1976) (distinguishing Johnson and tolling a statute of limitations

13

Johnson, as this Court stressed repeatedly, Congress had
conferred upon plaintiff a “valuable” choice between “sepa-
rate, distinct and independent remedies.” (421 U.S. at 460-
61) Here, the ICC proceedings and the subsequent court
action were not “independent” of each other but were, by
virtue of primary jurisdiction law, clearly interdependent.”
In Johnson, this Court observed the absence of a “positive
preference” that plaintiff’s Title VII administrative remedy
be pursued before the commencement of his § 1981 remedy.
(421 U.S. at 461) Here, the doctrine of primary jurisdiction
evinced not merely a “positive preference” but a plain
mandate that Mt. Hood obtain ICC rulings before prose-
euting its damage action in federal court.

The Court of Appeals carefully measured the facts of
this case against the Johnson yardstick and concluded that
the requisites for tolling, absent in Johnson, were present
here:

“Clearly, Congress did not intend a suit under the
antitrust laws to be an independent remedial alterna-
tive to a petition to the Commission under § 10 of the
Interstate Commerce Act in the circumstances involved
here. No injunction could have issued and no damages
could have been awarded under the antitrust laws un-
less and until the Commission exercised its primary
jurisdiction under the Interstate Commerce Act. The

when union grievance procedure was “a prerequisite to the cause
of action to be preserved by tolling.” ); Strickland ». Johns-Manville
International Corp., 461 F.Supp. 215, 218 (S.D. Tex. 1978).

See U.S. v. Western Pacific R. Co., 352 U.S. 59, 34 (1956) (facts
determined by the ICC “serve as a premise for legal consequences
to be judicially defined”). This interdependence was particularly
evident here. The Court of Appeals repeatedly declared the ICC’s
prior disapproval of Greyhound’s iplaneey conduct was “key to
our determination that Greyhound’s conduct was not immune from
the antitrust laws.” App. A, p. 13; 555 F.2d at 699.

14

doctrine of primary jurisdiction provides the ‘relevant
federal procedural law to guide the decision to toll
the limitations period’. The significant federal policy
underlying that doctrine—affording the Commission
an opportunity to discharge its functions in the area
assigned to it for regulation without interference by
courts exercising related jurisdiction under the anti-
trust laws—‘would have conflicted with a decision not
to suspend the running’ of limitations.” (App. A, p. 17)

The Court of Appeals also properly found that the
statute of limitations’ policy of repose was not frustrated.
Greyhound could not assert that evidence was “lost” inas-
much as Greyhound fraudulently concealed its violations
until 1964 [R.2248-9] and has been litigating those viola-
tions ever since. See Order of Ratlroad Telegraphers v.
Railway Express Agency, 321 U.S. 342, 348-49 (1944). The
Court of Appeals correctly found that both the factual and
legal issues raised by the ICC action “provided Greyhound
with notice of Mt. Hood’s antitrust claims in all but the
most technical sense.” (App. A, p. 12). As this Court and
the Court of Appeals recognized, both proceedings involved
precisely the same factual allegations. 437 U.S. at 326; 555
F.2d at 691; App. A, p. 12. Similarly, both proceedings
applied the antitrust laws to that conduct. The ICC in-
formed Greyhound that “the antitrust laws... offer certain
broad guidelines in determining this proceeding.” 104 MCC
449 at 451." The Court of Appeals likewise declared that

The ICC’s obligation was particularly compelling here because
15 U.S.C. § 26 prohibited Mt. Hood from obtaining injunctive relief
in a District Court. That prohibition, this Court held in Denver ¢>
R.G.W.R. Co. v. United States, 387 U.S. 485, 502 (1967), “under-
scores the ICC’s responsibility to act when such [antitrust] viola-
tions are brought to its attention.”

15

“antitrust issues were an appropriate part of the proceed-
ings.” 555 F.2d at 701. Indeed, Greyhound acknowledged the
Justice Department intervened in the ICC action “to assure
the adequate consideration of antitrust issues” [R. 1374],
including the issue of antitrust immunity. [R. 2272] Hence,
as the Court of Appeals recognized, Mt. Hood’s ICC action
for injunctive relief and its later court action for damages
were essentially identical so as “to avoid the evil against
which the statute of limitations was designed to protect.”
Johnson, supra, 421 U.S. at 467; see App. A, pp. 12-18.

B. The Court of Appeals’ Decision Presents No Conflict
With Decisions of the Second Circuit

The lower court’s exercise of its equity powers to toll the
statute of limitations here does not conflict with the deci-
sions of the Second Circuit or any other Circuit Court
of Appeals. The lower court’s decision, like the Second
Circuit decisions cited by Greyhound, merely represent
the discrete application of equitable principles to the par-
ticular facts presented. Following this Court’s remand,
the Court of Appeals remanded to the District Court
because application of equitable tolling “turns in large part
upon questions of fact” and therefore initial review by
the “trial judge fully familiar with the facts” was neces-
sary. [R. 3334-5] Both the District Court (Circuit Judge
Goodwin sitting by designation) and the Court of Appeals
painstakingly weighed the facts and applied this Court’s
equitable tolling standards to those facts. The Second
Circuit did no more.”

120n Meyer v. Frank, 550 F.2d 726 (2nd Cir. 1977), cert. denied,
434 U.S. 830 (1977), the Court twice stated that its decision rested
upon the facts and circumstances presented and proceeded to strike

16

That another court might decline to apply equitable
tolling to the particular facts before it is of no possible
significance here. What is significant is that numerous
courts (the Second Circuit as well as other Courts of
Appeal and District Courts) have frequently exercised
their equity powers to suspend the statute of limitations
“where the interests of justice require[d] vindication of
plaintiff’s rights.” Burnett, supra, 380 U.S. at 428. Chief
Justice Burger recognized that the equitable tolling issue
was for the lower court “sitting as a chancellor.” 437 U.S.
at 338-9. That the “chancellor” might exercise its equity
discretion to toll or not toll the statute in any particular
instance does not warrant review by this Court.*

a balance between the policies of federalism and repose in light of
plaintiffs conduct. 550 F.2d at 727 and 729-30. Although tolling
was denied in Williams v. Walsh, 558 F.2d 667 (2nd Cir. 1977), the
Court took pains to declare that “tolling may sometimes be neces-
sary to prevent frustration of the policy of the substantive federal
statute or, perhaps to advance the goals of federalism.” 558 F.2d at
674. Smith v. American President Lines, Ltd., 571 F.2d 102 ( 2nd
Cir. 1978) similarly acknowledged that tolling is appropriate where,
as here (due to 15 U.S.C. § 26 and the doctrine of primary juris-
diction), “plaintiff has in some extraordinary way been prevented
from asserting his rights.” 571 F.2d at 109.

13See, e.g., Leigh v. McGuire, 613 F.2d 380 (2nd Cir. 1979);
Billings v. Chicago, R.I. & P.R. Co., 581 F.2d 707 (8th Cir. 1978);
Ashland Oil, Inc. v. Phillips Petroleum Co., 554 F.2d 381, 392 (10th
Cir. 1977) (en banc); Dartt v. Shell Oil Co., 539 F.2d 1256 (10th
Cir. 1976), affd by equally divided court, 434 U.S. 99 (1977);
Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th
Cir. 1975); United States v. Woodbury, 359 F.2d 370 (9th Cir.
1966); Pesola, supra, 423 F.Supp. 34.

14Moreover, the scope of appellate review on the equitable tolling
issue is necessarily limited. Appellate courts will not disturb the
—— of fact of a trial judge sitting in equity unless those find-

ings of fact are “clearly erroneous.” United States v. E.I. duPont De
Nemours & Co., 331 U.S. 377, 381 (1956)

17

C. The Court of Appeals’ Decision Is Not in Conflict With
Carnation Co. v. Pacific Westbound Conference

In looking to Burnett, American Pipe and Johnson for
guidance with respect to the doctrine. of equitable tolling,
the Court of Appeals acted correcfly. Those decisions
represent the paramount authority or this issue. On the
other hand, as the Court of Appeals Ascertained from a
search of this Court’s records, the toting issue was not
before the Court in Carnation Co. v. Pacific Westbound
Conference, 383 U.S. 213 (1966): “Neither limitations nor
tolling was mentioned in the petition for certiorari, the
opposition or the briefs on the merits.” (App. A, p. 20)
While this Court ruled in Carnation that antitrust damage

actions generally are subject to the statute of limitations
and should therefore be stayed rather than dismissed pend-
ing agency rulings on matters within the agency’s primary
jurisdiction, it clearly did not decide—and was not asked
to decide—whether and under what circumstances a court
might toll the limitations statute pursuant to equitable
principles.

Carnation is not only of no help to Greyhound; it
further demonstrates why this case does not present a
significant issue worthy of a second review by this Court.
Mt. Hood had to act in 1964. The law which governed
its actions then was stated in Cunard, Far East, Great
Northern and the Ninth Circuit’s decision in Carnation.
The passing reference to the limitations statute in this
Court’s decision in Carnation did not come until two
years later—1966—long after the fact. In applying equit-
able tolling, the lower courts properly judged the reason-
ableness of Mt. Hood’s conduct by the law which governed
it. It would not have been fair to do otherwise.

18

Mt. Hood was told in 1964 that the doors of the federal
courts were closed to its claim for damages. Carnation,
supra, 336 F.2d at 650, 653. See also Segal v. A.T.€T.,
606 F.2d 842, 845 (9th Cir. 1979) (“The law of our Circuit
[in 1964] required the district court to dismiss an action
within the primary jurisdiction of an agency rather than
to retain jurisdiction over it.”) This Court should not
grant certiorari to consider Greyhound’s contention that
the statute of limitations ran on a damage action that
would have been dismissed if brought. Nor should certi-
orari be granted to consider Greyhound’s claim that
Mt. Hood should have foreseen a change in the law two
years later.

D. Greyhound’s Other Contentions Do Not Warrant Re-
view By This Court

Greyhound asserts that Mt. Hood proceeded “back-
wards” by going to the ICC first and that application of
equitable tolling to Mt. Hood’s ICC action therefore
“frustrates” the doctrine of primary jurisdiction. This
claim is likewise undeserving of the Court’s review. In
1964, when Mt. Hood was at the brink of destruction by
Greyhound, the “remedial scheme” reflected in 15 U.S.C.
§ 26 and the doctrine of primary jurisdiction literally
barred Mt. Hood’s access to the District Court. See Segal,
supra, 606 F.2d at 845. For Mt. Hood to have sought
help from the only forum then open to it was not to
proceed “backwards”. Greyhound surmises that its anti-
trust immunity claim would have been resolved by the
lower courts more expeditiously had Mt. Hood requested
the District Court to refer specific antitrust issues to the

19

ICC for consideration. But the lower courts’ decisions
proved the contrary. Both the District Court and the Court
of Appeals relied heavily upon the ICC’s disapproval of
Greyhound’s conduct as “destructive competition” in re-
jecting Greyhound’s claim of antitrust immunity. It is thus
frivolous of Greyhound to assert that “the ICC was never
even asked the question it should have answered to help
the antitrust court do its job.” (Petition at p. 17) Chief
Judge Browning declared in Greyhound’s prior appeal:
“The successful resolution of these issues [by the ICC]
was critical to the defeat of Greyhound’s claim of anti-
trust immunity.” 555 F.2d at 699. Contrary to Greyhound’s
accusation, the ICC furnished the lower court precisely
what it needed “to help the antitrust court do its job.”
See Western Pacific, supra, 352 U.S. at 64. That Grey-
hound doggedly litigated its antitrust immunity claim “for
nearly 10 years” thereafter cannot be blamed upon Mt.
Hood’s prior resort to the ICC. It was due to Greyhound’s
tenacity alone.

Finally, Greyhound’s alarmist ery that “confusion” will
result from the application of tolling here should be dis-
regarded. If Greyhound is suggesting that a trial judge
sitting in equity lacks discretion to toll a statute of limita-
tions in “the interests of justice” (Burnett, 380 U.S. at
428), it is wrong. The broad equity discretion vested in
the trial judge cannot be denied. Burnett, supra; American
Pipe, supra, 414 U.S. at 559 (reiterating “the power of
the federal courts to hold that the statute of limitations
is tolled under certain circumstances not inconsistent with
the legislative purpose.”); Glus v. Brooklyn Eastern
Terminal, 359 U.S. 231 (1959); Holmberg v. Armbrecht,

20

327 U.S. 392 (1946). Equitable tolling, like fraudulent con-
cealment tolling (Holmberg) or estoppel tolling (Glus),
turns on a case by case analysis of the facts in accordance
with “considerations deeply rooted in our jurisprudence”
(American Pipe, supra, 414 U.S. at 559) and does not
cause any greater “confusion” or “uncertainty” regard-
ing the statute of limitations.

Greyhound’s first petition for certiorari requested this
Court to give Mt. Hood’s equitable tolling claim “full con-
sideration.” The Court saw “no justification” to do so then.
437 U.S. at 337 n. 21. There is no justification to do so now.

II. THE COURT OF APPEALS’ DECISION DID NOT
VIOLATE GREYHOUND’S CONSTITUTIONAL
RIGHTS

Greyhound’s demand for a jury trial of the equitable
tolling issue comes late and with no support. The applica-
tion of equitable tolling to prior court or agency proceed-
ings has never been treated as a jury issue. In all of the
tolling decisions cited by Mt. Hood and Greyhound, it was
within “the authority of a federal court sitting as chan-
cellor” te decide whether “to toll a statute of limitations
on equitable grounds.” This procedure was described by

Chief Justice Burger “as a well established part of our

jurisprudence.” 437 U.S. at 338. There is good reason for

this. First, equity issues are traditionally decided by the
court, even within the context of a damage action.’ Second,
application of tolling here turned upon the resolution of

See Ross v. Bernhart, 396 U.S. 531, 538 (1970) (“The Seventh

Amendment question depends on the nature of the issue to be tried

rather than the character of the overall action.”); West v. Devitt,

311 F.2d 787, 788 (8th Cir. 1963) (no right to jury trial of laches

defense to damage claims ); Dawson v. Contractors Transport Corp.,

467 F.2d 727, 733 (D.C. Cir. 1972) (no jury trial on equitable
cross-claim for contribution in negligence action).

21

policy questions delineated in Burnett, American Pipe and
Johnson which fall outside the jury’s province.*®

Moreover, Greyhound’s demand for a jury trial with
respect to equitable tolling was abandoned by Greyhound
long ago. Greyhound previously requested the District
Court, the Court of Appeals and this Court to reject Mt.
Hood’s equitable tolling claim—on the merits—without
benefit of a jury. Now that equitable tolling has been
applied by the Court, Greyhound wants a jury.

This Court should not grant certiorari to review conten-
tions not pressed below. Greyhound’s Fifth Amendment
“due process” claim nowhere appears in the record below
and its Seventh Amendment “jury trial” claim did not sur-
face until long after this Court’s prior remand. [R. 3376]
Even then, it was given cursory five-line treatment in Grey-
hound’s briefs to the lower courts. [R. 3376; Appellants’
Opening brief, p. 18] No supporting authority was given.
Now, in the hope that a “constitutional issue” might trigger
certiorari, Greyhound’s jury trial demand has belatedly
assumed prominence in their latest petition. It is this pen-

Thus whether the “remedial scheme” (Burnett, supra, 380 U.S.
at 427) reflected in § 16 of the Clayton Act and the Supreme Court
doctrine of primary jurisdiction (particularly as it existed in 1964)
required Mt. Hood to go to the ICC before commencing a court
action for damages was a legal question which a jury could not be
expected to decide. Likewise, whether the ICC action and the court
action presented essentially the same issues regarding the same
predatory conduct so as to charge Greyhound with constructive
notice (if not actual notice) of Mt. Hood’s antitrust claims was a
legal question which a jury could not be expected to decide. Fi-
nally, whether tolling would be “consonant with the legislative
scheme” (American Pipe, supra, 414 U.S. at 558) or whether there
was “a substantial body of federal procedural law” and “a signifi-
cant federal policy that would have conflicted with a decision not
to suspend the statute” (Johnson, supra, 421 U.S. at 466) were poli-
icy questions which a jury could not be expected to decide.

22

chant for raising defenses in piecemeal fashion that has
enabled Greyhound to enjoy its “day in court” many times
over. Since 1964, Greyhound’s behavior has been reviewed
and condemned repeatedly by six federal tribunals (see
footnote 1, supra), rendering further review by this Court
superfluous.

III. THE INTEREST QUESTIONS RAISED BY GREY-
HOUND ARE NOT WORTHY OF CERTIORARI

A. The Court of Appeals Properly Awarded Interest
from the Date of the Original Judgment

Following remand, the District Court allowed interest at
Oregon’s statutory rate of 6%*" to accrue from the date of
Mt. Hood’s original judgment. Not content to have reaped
the substantial benefit from the use of Mt. Hood’s money
for seven years at an interest rate far below prevailing
levels, Greyhound asked the Court of Appeals to compound
the injustice by depriving Mt. Hood of all interest on its
judgment—inecluding the portion unaffected by the ruling
of this Court in the first appeal—from 1973 until 1979 when
the third amended judgment was entered by the District
Court. [R. 3570-71] Relying upon sound precedent,'* the
Court of Appeals rejected Greyhound’s request that Mt.
Hood be denied interest on its judgment. (App. A, pp. 23-5)

17Oregon Revised Statutes 82.010.

'8Lew Wenzel & Co. v. London Litho Supply Co., 563 F.2d 1367,
1369 (9th Cir. 1977); Perkins v. Standard Oil Co., 487 F.2d 672,
674-6 (9th Cir. 1973). The failure of this Court to specifically
award interest did not preclude consideration of that issue by the
lower courts. Perkins v. Standard Oil Co., 399 U.S. 222, 223 (1970)
(“our failure to make explicit mention in the mandate of attorney’s
fees simply left the matter open for consideration by the District
Court, to which the mandate was directed.” ); Kneeland v. American
Loan and Trust Co., 138 U.S. 509, 511 (1891).

23

That holding is undeniably just and accords with a mass
of authority.’®

As the Court of Appeals recognized, the present judg-
ment and the judgment previously vacated by this Court
are “in the same amount for the same damages incurred
during the same period. The only change is the rationale
for tolling for a portion” of the judgment. (App. A p. 24)
Hence the cases cited by Greyhound are readily distin-
guishable. Ashland Oil, Inc. v. Phillips Petroleum Co.,
607 F.2d 335 (10th Cir. 1979), cert. denied, 48 U.S.L.W.
3538 (1980) and Hysell v. Iowa Public Service Co., 559
F.2d 468 (8th Cir. 1977) both involved remand proceedings
that required additional fact-finding and entry of new
judgments. Briggs v. Pennsylvania R. Co., 334 U.S. 354
(1948) was concerned only with the power of appellate
courts to interpret and enforce their mandates; it did not
address the availability of interest on judgments altered
on appeal.” The decision below creates no significant con-
flict in need of resolution by this Court.

19Ohio-Sealy Mattress Mfg. Co. v. Sealy, Inc., 585 F.2d 821, 845-
847 (7th Cir. 1978), cert. denied, 47 U.S.L.W. 3556 (1979); Spartan
Grain & Mill Co. v. Ayers, 581 F.2d 419, 429 (5th Cir. 1978); City
of Detroit v. Grinnell Corp., 575 F.2d 1009, 1010 (2d Cir. 1978);
Inland Credit Corp. v. M/T Bow Egret, 556 F.2d 756, 758 (5th
Cir. 1977); Skou wv. United States, 526 F.2d 293, 300 (5th Cir.
1976); Woods Exploration & Producing Co., Inc. v. Aluminum Co.
of America, 509 F.2d 784, 789 (5th Cir. 1975); United States v.
Michael Schiavone & Sons, Inc., 450 F.2d 875, 876-877 (1st Cir.
1971); Premier Corp. v. Serrano, 471 F.Supp 444, 445-6 (S.D. Fla.
1979); Feldman v. Allegheny Airlines, Inc., 452 F.Supp. 151, 153
(D.Conn. 1976); Mascuilli v. United States, 383 F.Supp. 50, 52-53
(E.D. Pa. 1974).

20Also, unlike the plaintiff in Briggs, Mt. Hood requested the
Court of Appeals to modify its mandate on remand to expressly
authorize the award of interest from the date of the original judg-
ment and, unlike the Court of Appeals in Briggs, the court below
~~ that such interest should be awarded. (Brief of Appellee,
p. 58-9).

24

B. The Court of Appeals Properly Awarded Interest on
Attorney’s Fees

Greyhound’s request for certiorari with respect to the
lower court’s award of interest on the entire judgment,
including that portion of the judgment which consists of
attorney’s fees, should likewise be denied. Even if Grey-
hound’s claims were otherwise deserving of this Court’s
review, it was apparently not worthy of Greyhound’s
attention on its prior appeals. The District Court’s judg-
ment dated December 21, 1973 expressly provided the
award of attorney’s fees would bear interest. [R. 3273]
While Greyhound unsuccessfully appealed the amount of
those fees, it did not question the lower court’s award
of interest thereon. To allow Greyhound to raise that
question on its second appeal, having failed to do so on
its first appeal six years ago, would reward Greyhound’s
efforts to prolong this litigation and would exacerbate the
resultant injury to Mt. Hood.

Nor does Greyhound’s contention have merit even if
it had not been waived. The only authority cited in Carpa,
Inc. v. Ward Foods Inc., 567 F.2d 13816 (5th Cir. 1978)
(upon which Greyhound relies) for its denial of interest
on attorney’s fees was an earlier diversity case applying
Texas law, even though it recognized that accrual of inter-
est in federal question cases is controlled by federal law.
567 F.2d at 1322. Section 1981 governs interest on “money
judgments,” not “costs” or “damages”. The Court of
Appeals was therefore correct in following Perkins v.
Standard Oil Company of California, 487 F.2d 672, 675
(9th Cir. 1973) for, as it explained in Perkins, “once a
judgment is obtained, interest thereon is mandatory with-

25

out regard to the elements of which that judgment is com-
posed.” This is the only reasonable construction of § 1981
of the Judicial Code and has therefore led many other
courts to allow interest on awards of attorney’s fees.
E.g., Lew Wenzel & Co., etc. v. London Litho Supply Ce.,
Inc., supra, 563 F.2d at 13869; City of Detroit v. Grinnell
Corp., supra, 575 F.2d at 1010; Ramey v. Cincinnati
Enquirer, Inc. 508 F.2d 1188, 1198 (6th Cir. 1974); Harris
v. Chicago Great Western Ry., 197 F.2d 829, 836 (7th Cir.
1952). Carpa is a mere aberration, contrary to the weight
of authority on a trivial issue, and does not warrant a
second writ of certiorari by this Court.

CONCLUSION
For the reasons stated herein, the Petition for Writ of
Certiorari should be denied.

Dated: May 29, 1980.

Respectfully submitted,

Micwaeu N. Kuourie

EvuGene C, Crew

Tuomas PAINE

JorL LINZNER

Bruce MacGrecor Hau

Counsel for Respondent

Broab, KHourtzE & ScHULZ,

Of Counsel.

(Appendix follows)

STATUTES

Section 16 of the Clayton Act (15 U.S.C. § 26) provides:

“Any person, firm, corporation, or association shall be
entitled to sue for and have injunctive relief, in any court
of the United States having jurisdiction over the parties,
as against threatened loss or damage by a violation of the
antitrust laws, including sections two, three, seven, and
eight of this Act, when and under the same conditions and
principles as injunctive relief against threatened conduct
that will cause loss or damage is granted by courts of
equity, under the rules governing such proceedings, and
upon the execution of proper bond against damages for
an injunction improvidently granted and a showing that
the danger of irreparable loss or damage is immediate, a
preliminary injunction may issue: Provided, That nothing
here contained shall be construed to entitle any person,
firm, corporation, or association, except the United States,
to bring suit in equity for injunctive relief against any
common earrier subject to the provisions of the Act to
regulate commerce, approved February fourth, eighteen
hundred and eighty-seven, in respect of any matter subject
to the regulation, supervision, or other jurisdiction of the
Interstate Commerce Commission.”

Section 1961 of the Judicial Code (28 U.S.C. $1961)
provides:

“Interest shall be allowed on any money judgment in a
civil case recovered in a district court. Execution therefor
may be levied by the marshal, in any case where, by the
law of the State in which such court is held, execution may
be levied for interest on judgments recovered in the courts
of the State. Such interest shall be caleulated from the date
of the entry of the judgment, at the rate allowed by
State law.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2430%3A2. Public record. Not legal advice.