Opposition — Murphy v. Eagen

y DER L. STL

| No. 80-1415 me

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1980

EDWARD M. MURPHY, II,

Petitioner

Vv.

MICHAEL J. EAGEN, Individually and

as a Justice of the Pennsylvania Su-

preme Court Who Has Responsibility

for Administration of Admissions to

the Bar of the Commonwealth of Penn-

sylvania, et al. (MICHAEL J. EAGEN,

HENRY X. O'BRIEN, SAMUEL J. ROBERTS,

ROBERT N.C. NIX, JR., LOUIS MANDERINO,

ROLF LARSEN, JOHN P. FLAHERTY, as In-

dividuals and as Justices of the Penn-

sylvania Supreme Court),

Respondents

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Bernard G. Segal*

James D. Crawford

Attorneys for Respondents

SCHNADER, HARRISON, SEGAL & LEWIS

1719 Packard Building

Philadelphia, Pennsylvania 19102

Of Counsel

*Counsel of Record for Respondents

ee

QUESTION PRESENTED FOR REVIEW

When petitioner sought only af-

firmance of a District Court order that

respondent Justices of the Supreme Court

of Pennsylvania "issue appropriate stan-

dards and guidelines to govern the grant

or denial of waivers of the ABA accredi-

tation requirement and [the Pennsylvania

Bar Admission Rules embodying that re-

quirement]," was not petitioner's case

made moot by the amendment of the ac-

creditation rule to require receipt

"without exception" of a degree from an

ABA accredited law school?

~~ *

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW....... 1

STATEMENT OF THE CASE... ccccccccccce 2

REASONS FOR DENYING THE WRIT........ 8

gn This Case Presents No

Significant Question Con-

cerning the Rule that

Federal Courts Should

Not Decide Moot Cases..... i)

Il. This Case Was Plainly

Mooted by the Adoption

of the Amendment to the

Pennsylvania Bar Admis-

SAGER BWEAOGe be cc bccwcnvrese 14

III. In Addition, Petitioner's

Claim Is Plainly Barred by

PDD. GAGAOEERS 0 0 60-0 0 600 00m 20

CONCLUSION. ccc ccicccccccccccccesbecces 26

(1)

TABLE OF CITATIONS

Cases:

Aerojet-General Corp. v. Askew,

511 F.2d 710 (Sth Cir.),

cert. denied and appeal

dismissed, 423 U.S. 908

CASTS) cs cccccceeccccccc cece.

Berlitz Schools of Languages

Inc. v. Everest House,

619 F.2d 211 (2d Cir.

LFS crevice ccwecccrccccccecs

Board of Regents v. New Left

Educational Project, 414

U.S. 807, rev'g, 472 F.2d

218 (Sth Cir. 1973)........

Commissioner v. Sunnen,

333 U.S. S91 (1948)........

County of Los Angeles v.

Davis, 440 U.S. 625

CADTD cc cccvcccnnveccccepes

Crawford v. Zeitler, 326 F.2d

119 (6th Cir. 1964)........

Crowell v. Mader, 100 S. Ct. 25

CLDTD) « caveccsoseccscccsesces

Donegal Steel Foundry Co. v.

Accurate Products Co.,

516 F.2d 583 (3d Cir.

LOTS a ceconeccccvcccccccece

Duke Power Co. v. Greenwood

County, 299 U.S. 259

CLPSG). cc cccvvcedecccsscvces

Pi ae

o's 11

oe 20

ee 19

0° 24

oe 10

oe 23

oe 13

TABLE OF CITATIONS

Cases:

Ellentuck v. Klein, 570 F.2d

414 (2d Cir. 1978)........

Golden v. Zwickler, 394 U.S.

BGS: (LOSS E dD © bo che opeevcowe

Great Western Sugar Co. v.

Nelson, 442 U.S. 92

CLP CUE cin ols Se pide he ares 6 cise «

Gulf Oil Corp. v. Federal Power

Commission, 563 F.2d 588

(3d Cir. 1977), cert. denied,

434 U.S. 1062 (1978)......

Hall v. Beals, 396 U.S. 45

CRW Pinted 60 ce wis Uele wie sce

Hopper v. Barnett, 439 U.S. 1041 |

CAPA) oe big. ob 0pm eid pee o-6-6

In re Ferriman, 487 Pa, 45,

408 A.2d 844 (1979).......

In re Kartorie, 486 Pa. 500,

406 A.2d 746 (1979).......

Kremens v. Bartley, 431 U.S.

SSP. CADIS) Ss cic's wiaisaciecccdens

Montana v. United States, 440

TBs MOF RETO N as cee wees

O'Shea v. Littleton, 414 U.S.

4BB. (1974) a6 ce cccccccvscse

10

22

TABLE OF CITATIONS

Cases: Page

Preiser v. Newkirk, 422 U.S.

WOGEE MEME A wens sO 6 edwececc cee

Roe v. Wade, 410 U.S. 113

CRI REA GW é.0'W bialetate ee elwle des cee.

SEC v. Medical Commission

for Human Rights,

404 U.S. 403 (1972)......... 10,

Steffel v. Thompson 415

U.S. 452 (1974)........ aie ae oe

United States v. Concentrated

Phosphate Export Association,

Inc., 393 U,S. 199 (1968)....

United States v. Hamburg-American

Co,, 239 U.S. 466 (1916).....

United States v. Munsingwear,

Inc., 340 U.S. 36 (1950)....10,

United States v. W. T. Grant Co.,

334 U.S. 629 (1953)..........

Valerio v. Boise Cascade Corp.,

80 F.R.D. 626 (N.D. Cal.

RTT wkla b0igt ie ood e OReeseecee

Williamson v. Columbia Gas &

Electric Corp., 186 F.2d

464 (3d Cir. 1950)...........

(iv)

24

22

TABLE OF CITATIONS

Cases:

Constitution:

U.S. Const., Art. III,

ie MME Ce oceiera/s biy-o 2 Gu bien

Rules:

United States Supreme Court

BRED - BE < bok 6 wre © d.0'b op 6a ve sas

Pennsylvania Bar Admission

ED EE a an CR bikie e & 01614 6 ee

Other Authority:

1B J. Moore, Federal

I ers si Wag O'S 50.6 6.00

(v)

21

STATEMENT OF THE CASE

Petitioner is a graduate of

Western State University School of Law,

a law school which has never been ac-

credited by the American Bar Associa-

tion ("ABA"). In 1976, petitioner ap-

plied to the Pennsylvania Board of Law

Examiners (the "“Board") for permission

to take the Pennsylvania Bar Examina-

tion. His application was denied

because he was not a graduate of an

ABA-accredited law school as required by

the Supreme Court of Pennsylvania's Rule

8-C-2. Petitioner appealed the Board's

decision to the Supreme Court of Penn-

sylvania, which denied relief without

opinion.

In 1977, petitioner instituted

suit in the United States District Court

for the Eastern District of Pennsylvania

attacking the constitutionality of Rule

8-C-2 on due process and equal protec-

tion grounds. The court concluded that

the accreditation requirement was ration-

ally related to a valid state objective

and did not violate any of petitioner's

constitutional rights. Thus, the com-

plaint was dismissed for failure to

state a cause of action for which relief

could be granted. Murphy v. State Board

of Law Examiners, 429 F. Supp. 16 (E. D.

Pa. 1977). Petitioner did not appeal

the decision.

Petitioner then re-applied for

permission to sit for the Pennsylvania

Bar Examination. The Board's denial was

again affirmed by the Pennsylvania Su-

preme Court. Appeal of Murphy, 482 Pa.

43, 393 A.2d 369 (1970). Petitioner

filed an appeal to this Court. The

appeal was dismissed for want of juris-

diction and, treating the appeal papers

as a petition for certiorari, the Court

denied certiorari. 440 U.S. 901 (1979).

On August 6, 1979, petitioner

instituted his second federal court ac-

tion in the Eastern District of Pennsyl-

vania, again alleging that the applica-

tion of Pennsylvania's requirement that

candidates for admission to the bar be

graduated from an ABA-accredited law

school, now contained in Rules 203 and

205 of the Pennsylvania Bar Admission

Rules, violated his constitutional

rights. Respondents moved to dismiss

the Complaint on res judicata grounds,

and petitioner moved for summary judg-

ment. Without ruling on either motion,

the District Court requested the parties

to enter into a stipulation of facts

(28a-30a) which was filed on March 13,

1980.* On April 8, 1980, the District

Le Petitioner's original federal com-

plaint had alleged a violation of

the Equal Protection Clause in that

he had been treated differently

from others who had been admitted

to the Pennsylvania bar although

they had not graduated from an ABA-

accredited law school. The Com-

plaint in this case alleged a due

process violation in that the Penn-

sylvania Supreme Court had never

promulgated standards for the

"waiver" of the ABA-accreditation

requirement.

Although petitioner's Complaint al-

leged that the Pennsylvania Court

had "waived" the requirement as to

one Thomas Sylk "and others" (7a-

8a, 76), respondents had not yet

filed an answer in. which that al-

legation could be admitted or de-

nied at the time the District Court

granted summary judgment for peti-

tioner. The Stipulation of Facts

entered by the parties stated only

that Thomas Sylk was graduated from

a law school which was not accredi-

ted by the ABA at the time, that

the school was merged with another

unaccredited law school, that the

successor school was accredited by

the ABA in 1972 (29a, 98), and that

Sylk was finally permitted to sit

for the Pennsylvania bar examina-

tion by order of the Supreme Court

of Pennsylvania in 1977 (30a, 410).

There was no other factual basis

for the decision of the District

Court.

-5-<

Court granted petitioner's motion for

summary judgment and ordered respondents

"to issue appropriate standards and

guidelines to govern the grant or denial

of waivers of the ABA accreditation re-

quirement...." (19a).

Respondents appealed to the

United States Court of Appeals for the

Third Circuit. While that appeal was

pending, the Supreme Court of Pennsyl-

vania amended the Pennsylvania Bar Ad-

mi seiou Rules to make it explicit that

no exceptions to the accreditation rule

would be recognized. Accordingly, re-

spondents brief on appeal urged reversal

of the decision of the District Court

not only on the grounds that the claim

was barred by res judicata and that the

court erred in granting summary judgment

in the face of contested issues of ma-

terial fact, but also on the _ ground

that the case was moot.

In a Judgment Order dated No-

vember 10, 1980, the Court of Appeals

held that the amendment of the accredi-

tation rule rendered the appeal moot,

and ordered that the appeal be dis-

missed and the case remanded to the

District Court with instructions to va-

cate the judgment and dismiss the case

as moot. Reargument was denied.

Petitioner seeks a Writ of

Certiorari to review this order of the

Court of Appeals.

REASONS FOR DENYING THE WRIT

There are three clear reasons

for denying certiorari in this case.

First, there can be no dispute that

litigation should be dismissed if the

case has become moot; the only question

is the factual one of whether this spe-

cific case is moot. Therefore any deci-

sion in this case, should the Court

grant certiorari, would be of limited

precedental value. Second, the deci-

sion of the Court of Appeals is clearly

correct and in conflict with neither any

decisions of this Court nor any deci-

sions of other courts of appeals.

Finally, since the District Court erred

when it failed to dismiss the Complaint

on res judicata grounds, there is an-

other independent basis for upholding

the judgment of the Court of Appeals

which is so clear that a decision for

petitioner in this case would give him

no real relief.

I. This Case Presents No Signi-

ficant Question Concerning

the Rule that Federal Courts

Should Not Decide Moot Cases.

Article III of the Constitu-

tion imposes a "threshold require-

ment ... that those who seek to invoke

the power of federal courts must allege

an actual case or controversy." O'Shea

v. Littleton, 414 U.S. 488, 493 (1974);

U.S. Const., Art. III, §2, cl. 1. More-

over, the firmly established rule in fed-

eral cases is that an actual controversy

must exist at all stages of appellate

review, not merely at the time the com-

plaint is filed. Preiser v. Newkirk,

422 U.S. 400 (1975); Steffel v. Thomp-

son, 415 U.S. 452, 459 n.10 (1974); Roe

v. Wade, 410 U.S. 113 (1973); SEC v.

Medical Commission for Human Rights, 404

U.S. 403 (1972); United States v. Mun-

Singwear, Inc., 340 U.S. 36 (1950).

Thus, the federal courts have avoided

giving advisory opinions by refusing to

exercise jurisdiction over cases which

are no longer live.

Once the Court of Appeals de-

termined that the amendment of the state

Rule mooted respondents’ appeal, it

acted in accordance with the long-

established procedure of the federal

courts in vacating the judgment below

and dismissing petitioner's case.

Crowell v. Mader, 100 S. Ct. 25 (1979);

Great Western Sugar Co. v. Nelson, 442

U.S. 92 (1979); Hopper v. Barnett, 439

U.S. 1041 (1978); United States v. Mun-

singwear, Inc., supra. This rule

applies even where an appellant moots

the case by his own action. Board of

Regents v. New Left Educational Project,

414 U.S. 807, rev'g, 472 F.2d 218 (5th

Cir. 1973). Thus, the appellate court's

dismissal of the action was required by

established precedent.

In fact, the present case does

not deal with the question of what

should be done if a case becomes moot.

Rather, the question presented is merely

whether the Court of Appeals correctly

ruled that the case had become moot upon

the amendment of the relevant Pennsyl-

vania Bar Admission Rules. There is no

suggestion in the Petition for Certi-

orari that there is a need for clarifi-

cation of the meaning of mootness or

that tue facts of this case are likely

to recur. Indeed, since the Supreme

Court of Pennsylvania had renounced any

possible "waiver" policy in its 1979

decisions in In re Ferriman, 487 Pa. 45,

408 A.2d 844 (1979), and In re Kartorie,

486 Pa. 500, 406 A.2d 746 (1979), and

had prohibited "waiver" of the ABA-

accreditation policy by its 1980 amend-

ment to Rule 203, it is unlikely that

any case other than petitioner's chal-

lenging the alleged pre-1979 practice

remains open to be controlled by a de-

cision of this Court. Nor does peti-

tioner suggest that a similar mootness

problem exists in any other jurisdic-

tion to which this Court's decision

would apply, or that the decision below

conflicts with any decision of this

Court or the courts of any other cir-

cuit. In other words, none of the

criteria set forth in Rule 17 of

this Court's Rules is met.

A review of the cases indi-

cates that since this Court announced

-12-

il

the rule that moot cases should be dis-

missed in United States v. Hamburg-Amer-

ican Co., 239 U.S. 466 (1916), it has

never granted certiorari simply to de-

termine whether a given case is moot.

Apart from rare cases like Duke Power

Co. v. Greenwood County, 299 U.S. 259

(1936), and United States v. Munsing-

wear, 340 U.S. 36 (1950), which either

enforced the Hamburg-American rule or

defined its perimeters, this Court has

dealt with the mootness issue when a

change of circumstances intervened be-

tween the decision below and the dispo-

sition of the case by the Court. Except

in the most unusual of circumstances,

absent here, there is no reason for

this Court to reexamine a decision by a

court of appeals that the case is already

moot at that level.

el3ea

Yi, eee.

Q

a

a This Case Was Plainly Mooted

by the Adoption of the Amend-

ment to the Pennsylvania Bar

Admission Rules.

In any case, the Court of Ap-

peals properly decided that this case

was moot in light of the adoption of the

amendment to Rule 203(2) of the Pennsyl-

vania Bar Admission Rules explicitly

setting forth the standards for waiver

of the accreditation requirement. Pe-

titioner's position in the District

Court was that respondents "must estab-

lish standards to be followed in the

waiver procedure." (17a). On the basis

of a single exception to the rule, the

District Court assumed a waiver policy

existed, and ordered respondents "to

issue appropriate standards and gquide-

lines to govern the grant or denial of

waivers of the ABA accreditation re-

quirement." (19a). While the appeal

was pending in the Court of Appeals, the

Supreme Court of Pennsylvania amended

its rules to make it clear that the ac-

creditation requirement would be en-

forced in all circumstances; "waivers"

of the requirement would not be permit-

ted. Petitioner has received the or-

dered relief. Thus, the case has "lost

its character as a present, live contro-

versy," and should be dismissed as moot.

Hall v. Beals, 396 U.S. 45, 48 (1969).

Petitioner suggests that the

amendment to the Pennsylvania Bar Admis-

sion Rules was not enough to comply with

the District Court's order since it of-

fered no basis for determining whether

he might come within the alleged

"waiver" policy. But even if the fact

that Thomas Sylk had been permitted to

sit for the bar examination indicated

that the Supreme Court of Pennsylvania

-15-

had had a "waiver" policy under the pre-

existing Supreme Court Rules relating

to bar admission, the new Pennsylvania

Bar Admission Rules which became effec-

tive on November 4, 1977, before peti-

tioner's unsuccessful appeal to the

Supreme Court of Pennsylvania, are not

alleged to have been subject to any such

"waiver." Moreover, the Supreme Court

of Pennsylvania had held that no excep-

tions to the ABA-accreditation require-

ment would be permitted under the new

bar admission rules even before peti-

tioner filed his motion for summary

judgment asking that such a "“waiver"

policy be defined by that court. See

In re Ferriman, supra; In re Kartorie,

supra. Thus, there was no "waiver"

policy whose standards respondents could

have announced in compliance with the

District Court's order except for the

absolute prohibition against exceptions

to the ABA-accreditation requirement.

What petitioner seems to be-

lieve the order of the District Court

required of respondents was the issuance

of guidelines to explain the granting of

permission to sit for the bar examina-

tion to a law student whose school was

only accredited after his graduation

even though that explanation would apply

only to that case. In addition, peti-

tioner would ask that he be admitted

under the same rule even though his law

school has never become accredited and

even though his case was decided by the

Supreme Court of Pennsylvania under new

Rule 203. In other words, petitioner

interprets the District Court's order

as giving him an opportunity to he ad-

mitted to the Pennsylvania bar under

-17-

standards which no longer applied to any-

one else at the time his application was

rejected, if they ever did. Nothing in

the District Court's order suggests that

it granted such broad relief.

Moreover, regardless of the

adequacy of the relief ordered below or

of respondents’ compliance therewith,

the ruling of the Court of Appeals was

correct because a cause of action based

upon a statute or regulation may be

mooted if that statute or regulation is

amended after the filing of the com-

plaint. See Kremens v. Bartley, 431

U.S. 119 (1976); Hall v. Beals, 396 U.S.

45 (1969). The meaning of the amended

rule and petitioner's rights thereunder

could not be any clearer. Thus, the en-

actment of a superseding regulation

which satisfies petitioner's attack on

the prior "standardless" regulation

- 18-

* nd 4 Bd

simply moots the case.?

y a It is true that even full com-

pliance with the judgment below or

the passage of an amended statute

may not moot a case if the ques-

tioned conduct is likely to recur.

See United States v. Concentrated

Phosphate Export Association, Inc.,

393 U.S. 199 (1968); United States

v. W.T. Grant Co., 334 U.S. 629

(1953). The amended regulation in

this case, however, comports with

respondents’ recent decisions that

the accreditation requirement will

apply | "without deviation or excep-

tion. See In re Ferriman, supra;

In re Kartorie, supra. Petitioner

does not allege that any "waivers"

have been granted since these de-

cisions. Moreover, this Court

should not assume that the highest

court of the Commonwealth of Penn-

sylvania will not strictly enforce

the explicit standards set forth

in its decisions and regulations.

It can be said with assurance that,

even assuming a waiver policy did

exist in the past, there is no

"reasonable expectation" that it

will recur in the future. County

of Los Angeles v. Davis, 440 U.S.

625, 631 (1979); SEC v. Medical

Commission we Human Rights, 404

U.S. 403, (1972). Mere specu-

lation gy the challenged conduct

will recur is insufficient to es-

tablish the "immediacy and reality"

that Article III demands. See

Golden v. Zwickler, 394 U.S. 103,

ate ees (1969).

-19-

III. In addition, Petitioner's

Claim Is Plainly Barred by

Res Judicata.

Even if the mootness issue

were in some sense worthy of the atten-

tion of this Court, no decision of the

Court is likely to affect the outcome

of this case since petitioner's claim

is so plainly barred by the doctrine of

res judicata. Having litigated the same

facts and closely related legal theories

in his first unsuccessful federal liti-

gation, petitioner cannot retry the same

issues by a minor change in his legal

theory.

In Commissioner v. Sunnen, 333

U.S. 591 (1948), this Court explained

the navure and operation of the doc-

trine of res judicata:

-20-

"The general rule of res

judicata applies to repeti-

tious suits involving the

Same cause of action. It

rests upon considerations

of economy of judicial time

and public policy favoring

the establishment of cer-

tainty in legal relations.

The rule provides that when

a court of competent juris-

diction has entered a final

judgment on the merits of a

cause of action, the parties

te the suit and their

-rivies are thereafter bound

"not only as to every matter

which was offered and

received to sustain or de-

feat the claim or demand,

but as _ to any other admis-

sible matter which might

have been offered for that

purpose."

Cromwell v. County of Sac,

94 U.S. 351, 352. The

udgment ts an end to the

cause of action, which can-

not again be brought into

litigation between the par-

ties upon any ground what-

ever, absent fraud or some

other factor invalidating

the judgment. See Von

Moschzisker, "Res Judicata,"

38 Yale L.J. 299; Restate-

ment of the Law of Judg-

ments, §§ 47, 48." 333

U.S. at 597. (Emphasis

added. )

The Court has recently echoed these

principles in Montana yv. United States,

440 U.S. 147, 153-54 (1979), in which it

reemphasized the salutary effects of the

doctrine of res judicata.

Thus, the federal courts have

held that a plaintiff cannot "split" his

cause of action into various claims, all

dependent on the same underlying rights,

and pursue those claims seriatim. See,

e.g., Aeroje -General Corp. v. Askew,

511 F.2d 710 (Sth Cir.), cert. denied

and appeal dismissed, 423 U.S. 908

(1975); Williamson v. Columbia Gas &

Electric Corp., 186 F.2d 464, 470 (3d

Cir. 1950), cert. denied, 341 U.S. 921

(1951); 1B J. MOORE, FEDERAL PRACTICE

§0.410 [2]; see also Gulf Oil Corp. v.

Federal Power Commission, 563 F.2d 588,

602 (3d Cir. 1977), cert. denied, 434

U.S. 1062 (1978).

>

Petitioner asserted below that

the doctrine of res judicata did not bar

his present suit because his due process

Claim herein stated a different "cause

of action" than the cause of action al-

ready dismissed in the first federal

suit. That assertion ignores the speci-

fic allegations of the first complaint

as well as the applicable precedents

relating to the definition of a "cause

of action."

As the court aptly noted

in Donegal Steel Foundry Co. v. Accurate

Products Co., 516 F.2d 583, 588 n.10

(3d Cir. 1975), the term "'[c]lause of

action’ cannot be precisely defined, nor

can a simple test be cited for use in

determining what constitutes a cause of

action for res judicata purposes." None-

theless, the case law makes clear that

the res judicata effect of a prior de-

termination cannot be avoided by

""clothing the claim in different

garb.'" Valerio v. Boise Cascade Corp.,

80 F.R.D. 626, 653 (N.D. Cal. 1978),

quoting In re Orbitec Corp. v. Askew,

392 F. Supp. 633, 636 (S.D.N.Y. 1975);

see also Aerojet-General Corp. v. Askew,

supra, Sll F.2d at 718; Crawford v.

Zeitler, 326 F.2d 119, 121 (6th Cir.

1964).

Here, it is patent that peti-

tioner's present suit implicates the

identical cause of action as did his

previous federal suit. It is clear that

petitioner challenges the identical al-

leged "liability creating conduct" of

respondents as he did in the prior liti-

gation, that is, their refusal to permit

him to sit for the Pennsylvania Bar Ex-

amination.

-24-

As has previously been noted,

petitioner specifically claimed in ‘his

first federal suit filed on February 7,

1977 that the practice of the State

Board of Law Examiners in enforcing

Rule 8-C-2 had interfered with his right

"to be similarly treated as others under

like circumstance" and "to be free from

arbitrary and unreasonable action on the

part of the Bar admitting authorities."

Specifically, he claimed even then that

the ABA-accreditation requirement had

been "relaxed" in other instances, that

under Rule 8-C-2 the Board was permitted

"to treat applicants similarly situated

in a different manner," and that the

Board was given the ability to extend

the rule in an “unwarranted and over-

broad fashion" and to make it "vague,

uncertain and indefinite.”

Thus, the essential factual

predicate for petitioner's claim in this

case is the same as that raised in his

prior suit. Accordingly, the order of

: dismissal there bars this suit.

See Berlitz Schools of Languages Inc. v.

Everest House, 619 F.2d 211, 215 (2d

Cir. 1980); Ellentuck v. Klein, 570 F.2d

414, 428 nn. 22, 23 (2d Cir. 1978).

Under these circumstances,

petitioner's claim is as clearly barred

by the doctrine of res judicata as it is

moot.

CONCLUSION

For all of these reasons, the

Petition for a Writ of Certiorari to the

United States Court of Appeals for the

Third Circuit should be denied.

Respectfully submitted,

Bernard G. Segal

James D. Crawford _

Attorneys for Réspondents

a26e

SCHNADER, HARRISON, SEGAL & LEWIS

1719 Packard Building

Philadelphia, Pennsylvania 19102

Of Counsel

Dated: March 23, 1981

a2%a

SCHNADER, HARRISON, SEGAL & LEWIS

1719 Packard Building

Philadelphia, Pennsylvania 19102

Of Counsel

Dated: March 23, 1981