Opposition — Peltzman v. Federal Maritime Commission

QUESTIONS PRESENTED

1. Whether a court of appeals' may decide the

merits of an appeal on a motion to affirm.

2. Whether the Federal Maritime Commission has

jurisdiction under Sections 15, 16 or 17 of the Ship-

ping Act of 1916, 46 U.S.C. 814, 815 or 816, over a

vessel owner’s discharge of a marine radio operator

based on his refusal to join the radio operators’ union

within 30 days of hiring, as required by a collective

bargaining agreement.

(1)

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases:

Antal v. District 5, UMW, 451 F.2d 11778

Boag v. MacDougall, No. 80-6845 (Jan. 11, 1982)

Burlington Truck Lines, Inc. v. United States, 371

r

Delaware River Port Authority v. FMC, 586 F.2d

SES SERIE A - aan 8 ee

FMC v. Pacific Maritime Association, 485 U.S. 40.

Kemph v. Estelle, No. 79-2565 (5th Cir. Nev. 9,

1979), withdrawn from e 606 F.2d

518*, 621 F.2d 162 0

NAACP v. FPC, 425 US. Fran

Outward Continental North Pacific Freight Con-

ference v. FMC, 385 F.2d 911111

Peltzman v. American Radio Association, 69 Misc.

2d 17, 327 N. V. S. 2d 505, aff'd mem., 40 A.D.2d

631, 385 N. V. S. 2d 998, cert. denied, 411 U.S.

r / ((

Peltzman v. Central Gulf Lines, Inc., 86 L. R. R. M.

(BNA) 2127, rev'd in part, 497 F.2d 3382, on

remand, 88 L.R.R.M. (BNA) 2924, aff’d, 5238

F.2d 96, cert. denied, 428 U.S. 1074

Peltzman v. NLRB, No. 72-1091 (2d Cir. Apr. 4,

1972), cert. denied, 409 U.S. 887

(mi)

IV

Cases—Continued Page

Persian Gulf Outward Freight Conference v. FMC,

Feen 6

Sanders v. Crouse, 429 F.2d 3 5

United States v. Fields, 423 F.2d 1211 5

United Stevedoring Corp. v. Boston Shipping As-

9

8

e

Volkswagenwerk v. FMC, 390 U.S. 211

Statutes and rules:

Maritime Labor Agreements Act of 1980, Pub. L.

No. 96-325, 94 Stat. 1021 et seq. 4 7

Section 6, 94 Stat. 102·ãꝶ2Gòmdddd 7

Shipping Act of 1916, 46 U.S.C. 801 et e.. 2, 8, 1

Section 1, 46 U.S.C. 80 ——.— 7

Section 15, 46 U.S.C. 814 2, 4, 7, 8, la-2a

Section 16, 46 U.S.C. 81 2, 4, 7, 2a

Section 17, 46 U.S.C. 81 2. 4, 7, 2a-Ba

Section 22, 46 U.S.C. 81 5

Pub. L. No. 97-31, 95 Stat. 111111 8

Sup. Ct. R. 1 nit 5

D.C. Cir. R.:

D 6

r 6

Fed. R. App. P

111 5

rr 5

In the Supreme Court of the United States

OcTOBER TERM, 1982

No. 82-181

ARCHIE PELTZMAN, PETITIONER

v

FEDERAL MARITIME COMMISSION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The orders of the court of appeals (Pet. App. la-

4a) are not reported. The order of the Administra-

tive Law Judge dismissing petitioner’s complaint

(Pet. App. 5a-22a), and the order of the Federal

Maritime Commission adopting the dismissal of the

complaint (Pet. App. 23a-35a), are reported at 20

Shipping Reg. Rep. (P & F) 939 and 20 Shipping

Reg. Rep. (P & F) 1479, respectively.

JURISDICTION

The judgment of the court of appeals (Pet. App.

la-2a) was entered on March 29, 1982, and a petition

for rehearing was denied on May 19, 1982 (Pet. App.

3a-4a). The petition for a writ of certiorari was filed

on August 2, 1982. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

(1)

2

STATUTE

Sections 15, 16 and 17 of the Shipping Act of 1916,

46 U.S.C. 814, 815 and 816, are set forth in pertinent

part in Appendix A, infra, la-3a.

STATEMENT

Petitioner seeks review of the Federal Maritime

Commission’s dismissal of his complaint on the

ground that it failed to allege a violation of the

Shipping Act of 1916, 46 U.S.C. 801 et seg., and, to

the extent that it sought reparation, that it was not

filed within the applicable period of limitations. The

underlying facts are set forth in Peltzman v. Central

Gulf Lines, Inc., 86 L. . R. M. (BNA) 2127 (S.D.

N.Y.) (summary judgment), rev’d in part, 497 F.2d

332 (2d Cir.), on remand, 88 L.R.R.M. (BNA) 2924

(S.D.N.Y. 1974), aff'd, 523 F.2d 96 (2d Cir. 1975),

cert. denied, 423 U.S. 1074 (1976).

In 1949, the Coast Guard refused to issue peti-

tioner, a marine radio officer, a radio operator’s li-

cense on the ground that he was either a member

of the Communist Party or a Communist Party sym-

pathizer. Without a license, petitioner could not con-

tinue to work in the Merchant Marine, and in 1950

he was expelled from the American Radio Associa-

tion, a labor union, for failure to pay his dues. After

filing suit against the Coast Guard in 1967, peti-

tioner secured a new license and the Union issued

him a “permit card,” allowing him to sail for one

year without paying the Union’s $2,000 initiation

fee. Thereafter, however, the Union demanded the

full fee. Petitioner refused to pay the ‘nitiation fee,

claiming that as a former member he should be re-

quired to pay only the lesser “withdrawal fee.” 497

F.2d at 333. In May 1971, his employer, respondent

Central Gulf Lines, Inc., discharged him pursuant to

the “union security clause” contained in its collective

bargaining agreement with the Union. This clause

provided (Pet. App. 11a):

The Company agrees, as a condition of employ-

ment, that all employees in the bargaining unit

shall become and remain members of the Union

thirty (30) days after date of hiring.

Petitioner then began a series of legal actions. He

first took his claim to the National Labor Relations

Board, alleging that the Union’s refusal to clear him

for employment on a Central Gulf vessel and Cen-

tral Gulf’s subsequent refusal to employ him were

unfair labor practices. But the Regional Director

found the union security clause valid and refused to

file a complaint, and the General Counsel affirmed

that decision (Pet. App. 1la-12a). The Second Cir-

cuit dismissed petitioner’s appeal from the bench,

Peltzman v. NLRB, No. 72-1091 (Apr. 4, 1972), and

this Court denied a petition for certiorari, 409 U.S.

887 (1972). At the same time petitioner was seeking

relief from the NLRB, he was also pursuing a breach

of contract action against the Union in New York

State court. That suit was dismissed on the ground

that the NLRB had exclusive jurisdiction. Peltzman

v. American Radio Association, 69 Misc. 2d 17, 327

N.Y.S.2d 505 (Sup. Ct. 1971), aff'd mem., 40 A.D.2d

631, 335 N.Y.S.2d 998 (App. Div. 1972), cert. denied,

411 U.S. 916 (1973). Petitioner next sought relief

against his former employer, respondent Central Gulf

Lines, Inc., in federal court, where he “raised a

myriad of claims * * * based on maritime law, the

New York and federal constitutions, the antitrust

laws, and the collective bargaining agreement * * *”

(497 F.2d at 333). In essence, petitioner’s claim was

that Central Gulf Lines had unlawfully acceded to

the Union’s request that it discharge petitioner for

failing to pay the $2,000 initiation fee. All of peti-

4

tioner’s claims were rejected. Peltzman v. Central

Gulf Lines, Inc., 86 L. R. R. M. (BNA) 2127 (S..

N.Y.) (summary judgment), rev'd in part, 497 F. 2d

332 (2d Cir.), on remand, 88 L. R. R. M. (BNA) 2924

(S. D. N. V. 1974), aff'd, 523 F.2d 96 (2d Cir. 1975),

cert. denied, 423 U.S. 1074 (1976).

Petitioner initiated the instant action by filing a

complaint with the Federal Maritime Commission

against approximately 185 parties, including the

American Maritime Association and the Pacific Mari-

time Association (maritime multiemployer bargain-

ing organizations), the American Radio Association

and the Radio Officers Union (unions representing

marine radio operators) and several ocean common

carriers, including respondent Central Gulf. Pet. App.

5a-6a. Petitioner alleged (Pet. App. 7a-8a) :

This complaint is directed solely to the unlaw-

ful and discriminatory pre-hire exclusive hiring

hall arrangements, and “union” membership re-

quirement in the agreement which is placed on

seamen who wish to enter the service of shipping

companies, and who wish to retain those jobs

without being forced to “join” a union or be

from employment if they do not

“join” a union which has an exclusive preferen-

tial hiring hall agreement, commonly called a

pre-hire, or closed shop agreement, requiring

membership as a condition of employment or re-

ferral by a union as a condition of employment.

He contended that such union security agreements

violated Sections 15, 16 and 17 of the Shipping Act

of 1916, 46 U.S.C. 814, 815 and 816. Since the collec-

tive bargaining agreements containing the union se-

curity provisions had not been approved by the FMC,

1 Section 15 of the Shipping Act of 1916, 46 U.S.C. 814, re-

quires that certain types of agreements among ocean common

carriers be approved by the FMC and makes it unlawful to

petitioner asked that they be declared unlawful and

unenforceable, and that he be granted reparation.

The Commission’s Chief Administrative Law Judge

(ALJ) dismissed petitioner’s complaint on the grounds

that the Commission lacked jurisdiction over it and

that it was barred by the two-year statute of limita-

tions contained in Section 22 of the Act, 46 U.S.C.

821 (Pet. App. 15a-22a). The Commission affirmed

the ALJ’s order of dismissal subject to certain modi-

fications and clarifications (Pet. App. 23a-35a).

On petition for review, the court of appeals granted

the Commission’s motion for summary affirmance

(Pet. App. la-2a).

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or

any other court of appeals. Further review by this

Court therefore is not warranted.

1. Petitioner contends (Pet. 14-16) that the court

of appeals violated his procedural rights by granting

the Commission’s motion for summary affirmance.

Summary disposition of an appeal on motion, how-

ever, is sanctioned by Rule 16 of the Rules of this

Court as well as by decisions of the courts of appeals

construing Fed. R. App. P. 27. See, e.g., Antal v.

District 5, UMW, 451 F.2d 1187 (3d Cir. 1971);

Sanders v. Crouse, 429 F.2d 37 (10th Cir. 1970);

United States v. Fields, 423 F.2d 1221 (4th Cir.

1970). See also Fed. R. App. P. 2.“ Moreover, the

carry out such agreements “before approval or after disap-

proval.”

2 Petitioner relies (Pet. 15-16) on Kemph v. Estelle, No.

79-2565 (5th Cir. Nov. 9, 1979) (App. B, infra, 4a-Ta),

in which the court denied a motion to dismiss an appeal. The

decision in that case, however, was grounded largely on the

operating procedures of the Fifth Circuit and that court’s

procedure followed by the District of Columbia Cir-

cuit in this case is specifically authorized by its Rule

60680.

Petitioner had ample opportunity to present his ar-

gument to the court of appeals. The court decided the

appeal only after petitioner had filed a response to the

Commission’s motion for summary affirmance and a

further response in answer to Central Gulf’s pleading

in support of the Commission’s motion (see Pet. App.

la).* Neither the due process clause nor the Federal

Rules of Appellate Procedure requires more.“

Rule 20 (App. B, infra, ba-7a). In any event, the Fifth Cir-

cuit withdrew the decision from publication after it was pub-

lished in the advance sheets, 606 F.2d 518*, editors note, and

the case subsequently was decided without oral argument

under Rule i8 of the Rules of the Fifth Circuit. Kemph v.

Estelle, 621 F.2d 162 (1980).

* District of Columbia Circuit Rule 11, which petitioner

cites (Pet. 14-15), deals with the disposition of fully briefed

cases without oral argument, rather than disposition on a

motion for summary affirmance prior to full briefing.

* Petitioner’s opening brief and joint appendix also were

already on file. Pet. 9.

The procedure followed by the Commission was equally

proper. Where, as here, no material question of fact was

raised, it was appropriate for the Commission to rule on peti-

tioner’s complaint without holding evidentiary hearings, and

to dismiss the complaint where the alleged facts, if proven,

would have established no violation of statutes administered

by the Commission. See, e. g., Delaware River Port Autho-iiy

v. FMC, 686 F.2d 8391, 892 (D.C. Cir. 1976) ; Outward Con-

tinental North Pacific Freight Conference v. FMC, 385 F.2d

981, 984 n.9 (D.C. Cir. 1967) ; Persian Gulf Outward Freight

Conference v. FMC, 875 F.2d 385, 341 (D.C. Cir. 1967).

Nor does this Court’s decision in Boag v. MacDougall, No.

80-6845 (Jan. 11, 1982) (Pet. 16), suggest that the Commis-

sion’s dismissal of petitioner’s complaint was improper. In

that case, this Court reversed a district court’s dismissal of

7

2. Petitioner’s contention (Pet. 19) that the Com-

mission has jurisdiction over his claim

merit. Sections 15, 16 and 17 of the Shi

1916, 46 U.S.C. 814, 815 and 816, were enacted

industry,” FMC v. Pacific Maritime Association, 435

U.S. 40, 53 (1978), must be understood in that light.

To be sure, “it is quite untenable to suggest that col-

lective-bargaining contracts never control, regulate,

prevent, or destroy competition” (ibid.; emphasis by

the Court), and agreements and practices ordinarily

subject to the Commission’s jurisdiction are not ex-

empt merely because they involve a labor union or a

collective bargaining agreement.’ By the same token,

a prisoner’s pro se complaint where the only ground stated for

dismissal was erroneous as a matter of law, and no other

sufficient ground for dismissal appeared on the record before

the Court. Here, both the Commission and the court of ap-

peals articulated a correct basis for dismissal of the com-

80

plaint, which was amply supported by the record.

* Section 1 of the Shipping Act of 1916, 46 U.S.C.

requi.es the Commission to review and approve

gories of ayrreements among covered persons before they may

be implemunted. 46 U.S.C. 814. Sections 16 and 17 prohibit

covered persons from engaging in certain types of discrimina-

tory or unreaconable practices. 46 U.S.C. 815 and 816.

But see the Maritime Labor Agreements Act of 1980,

Pub. L. No. 96-825, 94 Stat. 1021 et seg. (MLAA), which ex-

f

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ML AA. 94 Stat. 1022, however, it does not apply to this case,

which was initiated four days before the statute was enacted.

, collective bargaining agreements of carriers

bear on intercarrier competition in a

aff

not

that affects shippers do not come within the

coverage of the statute. See id. at 57. Moreover, the

Commission must be particularly careful in asserting

jurisdiction when the agreement in question goes to

the heart of sensitive labor relations issues within

however.

that do

manner

the jurisdiction of the National Labor Relations

Board, such as the union security clause at issue

here. See V: v. FMC, 390 U.S. 261

278 (1968); cf. Burlington Truck Lines, Inc.

v.

United States, 371 U.S. 156, 172-174 (1962).* Ac-

Commission's jurisdiction, ¢.g., the labor laws, the Civil

Rights Act of 1964 (Pet. 3, 11), an international convention

(Pet. 13-14), and certain laws relating to ship subsidies,

11

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Stevedoring Corp. v. Boston

Shipping Association, 16 F.M.C. 7 (1972).

Finally, absent any allegation of injury to shippers

or any other class of persons protected by the Ship-

ping Act, the Commission correctly concluded that

the complaint stated no claim under Sections 16 and

7 of the Shipping Act of 1916, 46 U.S.C. 815 and

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

la

APPENDIX A

SHIPPING Act, 1916 (46 U.S.C. 801 et seg.)

Section 15, 46 U.S.C. 814

Every common carrier by water, or other person

subject to this [Act], shall file immediately with

the Commission a true copy, or, if oral, a true

and complete memorandum, of every agreement with

another such carrier or other person subject to this

[Act], or modification or cancellation thereof, to

which it may be a party or conform in whole or

in part, fixing or regulating transportation rates or

fares; giving or receiving special rates, accom-

otherwise regulating the number and character of

sailings between ports; limiting or regulating in any

way the volume or character of freight or passenger

traffic to be carried; or in any manner providing for

an exclusive, preferential, or cooperative working ar-

rangement. * * *

The Commission shal] by order, after notice and

hearing, disapprove, cancel or modify any agreement,

or any modification or cancellation thereof, whether

or not previously approved by it, that it finds to be

unjustly discriminatory or unfair as between car-

riers, shippers, exporters, importers, or ports, or be-

tween exporters from the United States and their

foreign competitors, or to operate to the detriment

of the commerce of the United States, or to be con-

trary to the public interest, or to be in violation of

this [Act], and shall approve all other agreements,

modifications, or cancellations * * *

Any agreement and any modification or cancella-

tion of any agreement not approved, or disapproved,

by the Commission shall be unlawful, and agree-

ments, modifications, and cancellations shall be lawful

only when and as long as approved by the Commis-

sion; before approval or after disapproval it shall be

unlawful to carry out in whole or in part, directly

or indirectly, any such agreement, modification, or

cancella as,

* * * * *

Section 16, 46 U.S.C. 815

It shall be unlawful for any common carrier by

water, or other persons subject to this [Act], either

alone or in conjunction with any other person, di-

rectly or indirectly—

First. To make or give any undue or unreasonable

preference or advantage to any particular person,

locality, or description of traffic in any respect what-

soever, or to subject any particular person, locality,

or description of traffic to any undue or unreasonable

prejudice or disadvantage in any respect whatsoever

* „ „

* * * * *

Section 17, 46 U.S.C. 816

No common carrier by water in foreign commerce

shall demand, charge, or collect any rate, fare, or

charge which is unjustly discriminatory between ship-

pers or ports, or unjustly prejudicial to exporters of

the United States as compared with their foreign com-

petitors. Whenever the Federal Maritime Commission

finds that any such rate, fare, or charge is demanded,

charged, or collected it may alter the same to the ex-

tent necessary to correct such unjust discrimination

or prejudice and make an order that the carrier shall

discontinue demanding, charging, or collecting any

such unjustly discriminatory or prejudicial rate, fare,

or charge.

Every such carrier and every other person sub-

ject to this [Act] shall establish, observe, and en-

force just and reasonable regulations and practices

relating to or connected with the receiving, handling,

storing, or delivering of property. Whenever the

Commission finds that any such regulation or practice

is unjust or unreasonable it may determine, prescribe,

and order enforced a just and reasonable regulation

or practice.

4a

APPENDIX B

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 79-2565

ALBERT ALAN KEMPH, JR., PETITIONER-APPELLANT

V.

W. J. ESTELLE, DirEcTOR. TEXAS DEPARTMENT OF

CORRECTIONS, RES? 0NDENT-APPELLEE

Nov. 9, 1979

Appeal from the United States District Court

for the Northern District of Texas

Before GOLDBERG, RONEY and TJOFLAT, Cir-

cuit Judges.

PER CURIAM:

Appellant, a Texas prisoner, was denied a writ of

habeas corpus by the district court. The court granted

a certificate of probable cause. After appellant’s brief

was filed on appeal, respondent-appellee filed a “Mo-

tion to Dismiss Appeal.” Fed. R. App. P. 27.

Respondent does not attack by the motion any pro-

cedural default in the appeal, but rather addresses

the merits of appellant’s claim. The merits of an

appeal are to be presented to the Court by briefs filed

in accordance with the provisions of Fed.R.App.P.

28, not by motion under Fed.R.App.P. 27.

“Many motions seek relief of a sort which is or-

dinarily unopposed or which is granted as of course.”

5a

Fed.R.App.P. 27, Notes of Advisory Committee on

Appellate Rules. Relief contemplated by the proce-

dure established under Fed.R.App.P. 28, on the other

hand, generally requires a decision on the merits, for

which the parties are given a full opportunity to ad-

dress all substantive issues, and to respond to the

arguments of their adversaries. Attempts to have the

Court dispose of the merits of a case by motion are

inappropriate for several reasons.

The Court’s procedure for handling emergency and

administrative matters which are proper subjects for

motion practice is markedly different from the pro-

cedure followed in determining the merits of an

appeal.

The judicial priorities accorded motions and the

hearing of cases on the merits differ. There is no

reason why an appellee should be permitted to alter

those priorities by the way in which it responds to

individual appeals.

An appellant is afforded 14 days to file a reply

brief to an appellee’s brief, but only seven days to

file a response in opposition to a motion. Fed.R.App.

P. 27(a), 31(a). There is no reason why appellee

should be permitted to shorten appellant’s time for

response to its arguments by filing a motion address-

ing the merits rather than by filing a brief.

The Federal Rules of Appellate Procedure have

been carefully developed to provide what has been

determined to be the best way for the merits of cases

to be presented to the Court. There is no reason why

respondent should be permitted to subvert those rules.

If expediting the appeal is appropriate, or a par-

ticular case lends itself to some treatment different

from the regular routine for processing appeals, the

rules are flexible enough to meet the needs of the par-

ticular case. Nothing appears in the motion before

6a

us to justify a failure of appellee to conform to the

rules à I the regular practice in this Court.

Motions «wre generally handled without oral argu-

ment and decided by a quorum of the court. Fifth

Circuit Internal Operating Procedures Manual § IV.E.

(Oct. 1, 1979 rev. ed.). Under the well-known Local

Rules and operating procedures of this Court, an ap-

peal cannot be decided without oral argument by less

than a unanimous court. Fed.R.App.P. 34(a) now

provides that oral argument shall be allowed in all

cases unless after examination of briefs and record,

a panel of three judges “shall be unanimously of the

opinion that oral argument is not needed.” The fil-

ing of a motion addressed to the merits of an appeal

tends to thwart these rules.

Local Rule 20 of this Court does provide for the

dismissal of appeals on interlocutory motions if it

shall appear to the Court that the appeal is frivolous

and entirely without merit.” It appears to this panel,

however, that the attorneys general in some states in

this Circuit are simply abusing this rule by bringing

motions alleging as frivolous that which only lacks

merit. The motion in this case is six pages long and

cites over a dozen cases. Regardless of the merit of

petitioner’s appeal, such extended argument reveals

that it is probably not frivolous. Frivolity should leap

from the mere statement of the issues on appeal. If

argument is necessary, the issues can only question-

ably be called frivolous, within the meaning of rule

20. Indeed, the United States District Court has is-

sued a Certificate of Probable Cause for this appeal

under Fed.R.App.P. 22(b), an action which was not

opposed by the state below, and which could not have

occurred had the district judge regarded the appeal

as frivolous.

74

In any event, the appeal could be dismissed under

rule 20 only if it were frivolous, and not on the

ground that the appeal, though not frivolous, lacked

merit. Three judges would be involved in denial of

the motion. Fed. R. App. P. 27 (e). Three other judges

would then be involved after briefing in a decision

that the appeal lacked merit. Such duplication of ju-

dicial effort is inefficient and wasteful of scarce ju-

dicial resources. The imposition of that duplicate

effort is a burden on the other litigants before this

Court who take their rightful place according to the

rules. |

Flexibility is needed in court rules to enable the

Court to handle properly the great variety of cases

that come before it. Flexible rules tend to invite

abuse. The cooperation of counsel appearing before

this Court in eliminating unnecessary activity and

following the spirit and intent of the rules is en-

couraged.

The motion to dismiss is denied, appellee is directed

to file a brief in accordance with the rules, and ap-

pellant is accorded the full period for filing a reply

brief. Fed.R.App.P. 31(a).

MOTION TO DISMISS DENIED.

W ©. „ covensucer paumrme orrice; 1962 seeees 1131