# Opposition — Murphy v. Eagen

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1981
- **Citation:** 451 U.S. 910

## Text

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

---

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