# Opposition — Peltzman v. Federal Maritime Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0524%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1982 - **Citation:** 459 U.S. 976 ## Text 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 Kemph v. Estelle, No. 79-2565 (5th Cir. Nev. 9, 1979), withdrawn from e 606 F.2d 518*, 621 F.2d 162 0 NAACP v. FPC, 425 US.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 ö 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 ö dial rf 4 F ce 79 4 EE | F i 8 i tit n f a 3 7 1 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0524%3A3. Public record. Not legal advice.