Opposition — Kaiser v. Consolidated Rail Corp.

| Office Supreme Court, U.S.

No 82-1545

CterkK

Y £ih ee

MAY 2 1983

DER tL. STEVAS,

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

Richard C. Kaiser,

Petitioner,

V.

Consolidated Rail Corporation and

Brotherhood of Locomotive Engineers,

Respondents.

On Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

BRIEF OF RESPONDENT CONSOLIDATED

RAIL CORPORATION IN OPPOSITION

Of Counsel Richard F. Ellenberger.

Charles E. Mechem . Counsel of Record

David S. Fortney Doyle, Lewis & Warner

Consolidated Rail Corporation 904 National Bank Building

1188 Six Penn Center Toledo, Ohio 43604

Philadelphia, PA 19103 (419) 248-1600

(215) 977-6003 Attorney for Respondent

Consolidated Rail Corporation

QUESTION PRESENTED

A dispute arose between a railroad employee and his

employer railroad over the interpretation of the

applicable collective bargaining agreement. The

employee instituted a breach of contract action

against the railroad in the United States District

Court, which properly was dismissed for lack of sub-

ject matter jurisdiction. The employee, with the

assistance of counsel, progressed the dispute to the

National Railroad Adjustment Board (NRAB) which

denied the employee’s claim on the merits. While pro-

gressing his dispute to the NRAB the employee

instituted a second breach of contract action against

the employer railroad, which was barred under the

doctrines of collateral estoppel and res judicata by the

earlier decision involving the same parties and issues.

The question presented is: whether the Court of

Appeals correctly held that the doctrines of collateral

estoppel and res judicata barred the second breach of

contract action against the employer railroad.

ii

TABLE OF CONTENTS

r

QUESTIONS PRESENTEPUI¹PHPHj)H/)j ...

STATUTES INVOLVEDPUD i.

STATEMENT OF THE CASZꝶ Egg.

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

I. The Facts Established by the Record Below Clearly

Demonstrate that Petitioner’s Cause of Action,

Involving a Minor Dispute” for Which Exclusive

Jurisdiction Lay in The National Railroad Adjust-

ment Board, Was Barred under the Doctrines of

Collateral Estoppel and Res Judicata by an Earlier

Decision Involving the Same Parties and Issues

II. There is no Conflict Between the Opinion and Order

of the Trial Court Below, the Decisions of this

Court and the Decisions of Other Circuits........

R .

iii

TABLE OF AUTHORITIES

OPINIONS

Acree v. Air Line Pilots Association, 390

F.2d 199 (5th Cir. 1968), cert. denied

398 U.S. 852 (1968)................

Allen v. McCurry, 449 U.S. 90 (1980)... ..

All States Investors, Inc. v. Sedley, 399

F.2d 769 (6th Cir. 1968).............

Andrews v. Louisville & Nashville

Railroad, 406 U.S. 320 (1972)........

Baldwin v. Iowa State Traveling Men's

Association, 283 U.S. 522 (1931)

Costello v. United States, 365 U.S. 265

rere es

Cromwell v. County of Sac, 94 U.S. 351,

r a's 8s urce eee

Glover v. St. Louis - San Francisco

Railway, 393 U.S. 324 (1969)........

Lawlor v. United States, 349 U.S. 322

err rere

Montana v. United States, 440 U.S. 147

! ĩ ˙ 64k aa

Union Pacific Railroad v. Sheehan, 439

h

Weston Funding Corp. v. Lafayette

Towers, Inc., 550 F.2d 710 (2d Cir.

JJ!²—²ẽ?B“bU 5dS2 ee

STATUTES

The Railway Labor Act, 45 U.S.C §§151, et

seq. Section 3, First (i..

MISCELLANEOUS

Rule 19 of the United States Court of

Appeals for the Sixth Circuit........

Page

4,5,10

8,11

8,9,10,11

6,10

1

OPINION BELOW

On April 17, 1981, the United States District Court

for the Northern District of Ohio, Western Division,

issued an Opinion and Order (‘‘the 1981 decision“)

granting a motion to dismiss of Consolidated Rail

Corporation (“Conrail’’), f/k/a Penn Central Transpor-

tation Company (Penn Central“) and also a motion

for summary judgment of the Brotherhood of

Locomotive Engineers (‘‘BLE”’). The ruling of the trial

court on Conrail’s motion to dismiss was premised on

a finding that lack of subject matter jurisdiction over

the same controversy had been determined, as a

matter of law, in a prior District Court action filed in

1975 against Penn Central Transportation Compary

(“the 1975 action’’). Copies of the two District Court

opinions are appended to the Petition for Writ of

Certiorari and are included in the record before the

Sixth Circuit Court of Appeals. !

The 1981 decision also found that Petitioner’s

action constituted an impermissible collateral attack

on proceedings before the National Railroad Adjust-

ment Board (‘‘NRAB” or Board), and that the Peti-

tioner’s remedy, if aggrieved by the NRAB decision,

was to file a petition for review in the District Court,

which he did not do.

Pursuant to Rule 19 of the United States Court of

Appeals for the Sixth Circuit, the 1981 decision was

1 By letter dated December 27, 1982, counsel for petitioner

stated that he would forward to the Supreme Court with the Peti-

tion for Certiorari copies of the joint appendix used in the Court

of Appeals. Petitioner has failed to file the joint appendix.

Accordingly, Conrail will refer to the appendix before the lower

court using references CA App.“

2

affirmed from the bench and a brief Order issued. (Pet.

App. A)? From this Order, petitioner now seeks

certiorari.

QUESTIONS PRESENTED

The only question presented, with respect to Peti-

tioner’s cause of action against his former employer, is

whether the 1981 decision, as affirmed by the Court of

Appeals, was correct in holding that the doctrines of

collateral estoppel and res judicata foreclosed Peti-

tioner from relitigating his 1975 cause of action for

breach of the employment contract.

Petitioner asserts that three questions are raised by

the 1981 decision and by the affirmance of that deci-

sion by the Court of Appeals. Petitioner’s first ques-

tion, however, misstates the grounds for dismissal by

the lower court in the 1981 decision, with the result

that petitioner’s second question, relating to an

alleged conflict among the circuits, is incorrect. There

is no conflict among the relevant decisions on res

judicata and collateral estoppel. Petitioner’s brief

does not appear to address the third question, con-

cerning the requirements of due process.

STATUTES INVOLVED

The statute involved is the Railway Labor Act, and

specifically 45 U.S.C. 5153 (i), which is set forth below:

The disputes between an employee or group of em-

ployees and a carrier or carriers growing out of griev-

ances or out of the interpretation or application

2 References Pet. App. are to the Appendix attached to the

Petition.

3

of agreements concerning rates of pay, rules, or

working conditions, including cases pending and

unadjusted on June 21, 1934, shall be handled in

the usual manner up to and including the chief

operating officer of the carrier designated to

handle such disputes; but, failing to reach an

adjustment in this manner, the disputes may be

referred by petition of the parties or by either

party to the appropriate division of the Adjust-

ment Board with a full statement of the facts and

all supporting data bearing upon the disputes.

STATEMENT OF THE CASE

Conrail adopts the Statement of the Case set forth

by respondent BLE, adding the following facts which

are pertinent to the lower court’s application of the

doctrine of collateral estoppel.

The first of two court proceedings instituted by the

petitioner was an action filed against the Penn Central

on December 5, 1975 (the 1975 action) in the United

States District Court for the Northern District of

Ohio, No. 75-480 (CA App. 16-18). Petitioner alleged a

cause of action for breach of the employment contract,

seeking both damages and reinstatement. Subse-

quently, in the same action petitioner amended his

complaint (CA App. 24) to include an allegation of

breach of the Union’s duty of fair representation,

although Petitioner did not name the BLE as a party

defendant. The District Court granted Penn Central’s

motion to dismiss the complaint for lack of subject

matter jurisdiction, and issued an Opinion and Order

of August 5, 1976 (the 1976 decision), finding that

Petitioner’s cause of action involved a minor

dispute“ over the interpretation of the terms of the

4

collective bargaining agreement and that the NRAB

had exclusive jurisdiction to resolve the dispute. In

reaching this conclusion the District Court specif-

ically considered the doctrine of Glover v. St. Louis -

San Francisco Railway, 393 U.S. 324 (1969) and found

it inapplicable.“ (CA App. 22). The trial court’s

dismissal of Petitioner’s cause of action was not

predicated on failure to join an indispensable party,

but rather on lack of subject matter jurisdiction. (CA

App. 20). The 1976 decision never was appealed.

Thereafter, Petitioner filed a claim for wrongful ter-

mination with the NRAB, which claim was processed

fully and investigated. However, prior to receiving a

decision from the Board, Petitioner, on December 5,

1979, filed a second action (the 1979 action) in the

United States District Court for the Northern District

of Ohio, reasserting a claim for breach of contract

against Penn Central, through its statutory agent

Conrail, and against the BLE for breach of its duty of

fair representation. The only difference between the

1975 action and the 1979 action (of which the present

petition is an outgrowth) was Petitioner’s formal

designation of the BLE as a party defendant in the

second action.

Conrail filed a motion to dismiss petitioner’s 1979

action on the ground that, under the doctrines of res

judicata and collateral estoppel, his claim for breach of

the employment contract was barred by the 1976

3 In the 1976 decision the court notes that ‘Plaintiff nevertheless

contends that there is an exception to this rule when there is an

allegation that the union has breached its duty of fair representa-

tion to the employee. For this proposition he cites, inter alia,

Glover v. St. Louis-San Fran. Ry., 393 U.S. 324 (1969).””

5

decision. In the 1981 decision the district court

granted Conrail’s motion, applying the doctrine of

collateral estoppel to two issues: (1) whether the cause

of action constituted a minor dispute” within the

meaning of the Railway Labor Act so as to limit peti-

tioner’s remedy to a proceeding before the NRAB; and

(2) whether, if the dispute was minor,“ the Glover

doctrine nevertheless protected petitioner’s access to

the district court. Finding that the cause of action was

the same as that advanced in the 1975 action the

lower court held that both issues previously had been

resolved against the petitioner and that dismissal of

the suit against Penn Central would fully effectuate

the purposes of the doctrine of collateral estoppel.”’

(CA App. 8). Nothing in the 1981 decision or the order

of the Court of Appeals supports petitioner’s present

assertion that the lower court’s decision was based on

petitioner’s failure to join an indispensable party.

ARGUMENT

REASONS FOR DENYING THE WRIT

This case involves no questions of law that are novel

or worthy of review.

The first and second questions of the three posed by

the petitioner mischaracterize both the 1976 and 1981

decisions and, therefore, miss the point that the 1981

decision was predicated solely on res judicata and

collateral estoppel. No conflict exists among the cir-

cuits on these doctrines as applied to this controversy.

Petitioner’s third question regarding due process in

the context of a ‘‘minor dispute” involving discharge

from employment because of failure to pass a promo-

tional exam has been resolved by this Court in favor of

adherence to the exclusive administrative grievance

6

procedure mandated by the Railway Labor Act. Union

Pacific Railroad v. Sheehan, 439 U.S. 89 (1978);

Andrews v. Louisville & Nashville Railroad, 406 U.S.

320 (1972).

Because the Petition raises no novel federal ques-

tion, is consistent with prior decisions of this Court

and involves no issue of dispute among the circuits, it

should be denied.

I. The Facts Established by the Record Below

Clearly Demonstrate that Petitioner's Cause of

Action, Involving a Minor Dispute“ for

Which Exclusive Jurisdiction Lay in the

National Railroad Adjustment Board, was

Barred, under the Doctrines of Collateral

Estoppel and Res Judicata, by an Earlier Deci-

sion Involving the Same Parties and Issues.

In the District Court and the Court of Appeals

Conrail, as Penn Central’s statutory agent, raised the

defenses of res judicata and collateral estoppel. The

Opinion and Order of the trial court limited its discus-

sion to the doctrine of collateral estoppel; but because

the findings and ultimate decision to dismiss Conrail

as a party were based on a determination that Peti-

tioner’s cause of action was barred by the 1976 deci-

sion, Conrail believes that a brief discussion of res

judicata is also necessary for a complete review of the

propriety of the District Court’s dismissal.

The doctrine of res judicata bars a second suit when

a judgment on the merits has been rendered in a prior

action involving the same cause of action and the

same parties or their privies. Costello v. United

States, 365 U.S. 265 (1961); Cromwell v. County of

Sac, 94 U.S. 351 (1876); Weston Funding Corp. v.

Lafayette Towers, Inc., 550 F.2d 710 (2d Cir. 1977);

7

All States Investors, Inc. v. Sedley, 399 F.2d 769 (6th

Cir. 1968); Acree v. Air Line Pilots Association, 390

F.2d 199 (5th Cir. 1968), cert. denied, 393 U.S. 852

(1968); Cream Top Creamery v. Dean Milk Co., 383

F.2d 358 (6th Cir. 1967). This Court has held that the

principles of res judicata apply to questions of

jurisdiction as well as to decisions on the merits.

American Surety Co. v. Baldwin, 287 U.S. 156, 166

(1932). See also Baldwin v. Iowa State Traveling

Men's Association, 283 U.S. 522 (1931). When the

prior judgment is not on the merits, the res judicata

bar is conclusive only as to the issues that actually

were adjudged. See Acree v. Air Line Pilots Associ-

ation, supra, 390 F.2d at 203.

The 1981 decision clearly and unequivocally sets

forth each requisite finding for application of the doc-

trine of res judicata. In both the 1975 and 1979

actions, petitioner stated the same cause of action

(breach of the collective bargaining agreement) based

on the same allegations. In both actions the party

asserting the defense was the same, namely Conrail. 4

In both actions the same right (Petitioner’s right not

to be wrongfully discharged) was allegedly infringed

by the same wrong (Petitioner’s termination for

failure to pass the promotional exam). Not only would

the same evidence sustain both judgments, but the

lack of subject matter jurisdiction would again be con-

clusive in the second action. It readily may be

The addition of the Brotherhood of Locomotive Engineers as

defendant to the 1979 action does not upset the balance, as the

union is not implicated in Count I of the Complaint and the Penn

Central is not implicated in Count II. The prior judgment is to be

applied only to Count I of the complaint, Petitioner's claim of

breach of contract by the Penn Central.

8

inferred, from the brief discussion in the 1981 decision

of the NRAB’s exclusive jurisdiction over minor

disputes, that had it been necessary, the Court would

have reached the same conclusion as did the trial

court in Petitioner’s prior action. (CA App. 8). The

only conclusion, however, which could be, and was,

reached by the trial court below was that the two

separate lawsuits were identical and that the

unappealed 1976 decision was determinative on the

issue of subject matter jurisdiction, thereby rendering

dismissal in the present action mandatory.

Even if the trial court had found a new cause of

action to be stated against Penn Central in the second

complaint, application of the doctrine of collateral

estoppei to the prior court’s finding that subject

matter jurisdiction was lacking would lead to the

same result, dismissal of the complaint as to Conrail.

“Under collateral estoppel, once an issue is actually

and necessarily determined by a court of competent

jurisdiction, that determination is conclusive in sub-

sequent suits based on a different cause of action

involving a party to the primary litigation.’’ Montana

v. United States, 440 U.S. 147 (1979). See Lawlor v.

National Screen Service Corp., 349 U.S. 322 (1955);

Cream Top Creamery v. Dean Milk Co., 383 F.2d 358

(6th Cir. 1967). In the 1975 action, the trial court

found Petitioner’s claim to be one against his former

employer over differing interpretations of the collec-

tive bargaining agreement. The Court in that pro-

ceeding was . . satisfied that the dispute involved

herein is a ‘minor’ dispute within the exclusive

jurisdiction of the Railroad Adjustment Board, and

that the defendant’s [respondent’s] motion should be

granted.” (CA App.20). The same complaint, sup-

ported by the same allegations and involving the same

9

legal issues and the same parties, is involved in the

action now pending before this Court. Accordingly,

Petitioner is foreclosed from relitigating the jurisdic-

tional issue in this action.

Furthermore, no change in the controlling facts or

legal principles occurred between the two suits which

would have created an exception to the doctrines of

res judicata and collateral estoppel. Montana uv.

United States, 440 U.S. at 155. During the interim

period Petitioner processed his claim through the

grievance procedure provided under the collective

bargaining agreement and received, with the assist-

ance of counsel, a full hearing before the NRAB. At

the time he filed his second cause of action the Board

had not yet issued its opinion on the merits. Subse-

quently, after issuance of the 1981 decision and after

Petitioner had filed his appeal with the Sixth Circuit,

the NRAB released its decision denying Petitioner’s

claim on the merits. (CA App. 68).

Petitioner, dissatisfied with the NRAB decision on

the merits and the 1981 decision, seeks to avoid the

doctrine of collateral estoppel by arguing that it is a

judicial doctrine ‘“‘modernized to achieve substantial

justice, and by averring that “‘[iJn the instant case

substantial justice is not being served. (Petition, pp.

11-12). This constitutes the second attempt by the

Petitioner to challenge his dismissal. Petitioner has

had not only the opportunity to raise the same issues

in a prior judicial action and to appeal the judgment in

that action (which he did not do) but also the oppor-

tunity to pursue his claim with the assistance of

counsel through the grievance procedure provided by

the collective bargaining agreement pursuant to the

Railway Labor Act. The decision of the NRAB is final

10

and binding, absent an appeal to the District Court on

very narrow grounds, Union Pacific Railroad v.

Sheehan, 439 U.S. 89, 93 (1978), an appeal which was

not prosecuted. Thus, more than substantial justice

has been done Petitioner, and his conclusory argu-

ment to the contrary must fail. The case at bar

epitomizes the policy and purposes of res judicata and

collateral estoppel.

As this Court and other courts have often recog-

nized, res judicata and collateral estoppel relieve par-

ties of the cost of vexation of multiple lawsuits, con-

serve judicial resources, and, by preventing incon-

sistent decisions, encourage reliance on adjudication.

Montana v. United States, 440 U.S. 147, 153-154

(1979). Accordingly, the trial court properly found

that Petitioner was barred from relitigating his claim

for breach of contract against Conrail, as statutory

agent for Penn Central, in the action now pending

before this Court.

Ii. There Is No Conflict Between the Opinion and

Order of the Trial Court Below, the Decisions of

This Court and the Decisions of Other Circuits.

Petitioner purports to find a conflict among the cir-

cuits. However, in view of the facts that (1) the trial

court in the 1975 action specifically addressed the

Glover doctrine, (2) no appeal was taken from the 1976

decision, and (3) the 1981 decision was based on res

judicata, the dispute among the circuits to which Peti-

tioner calls attention as to the applicability of the

Glover doctrine is not germane to resolution of the

issues at bar. As noted by this Court in Allen v.

McCurry, this Court has long recognized and applied

the doctrines of collateral estoppel and res judicata

when the causes of action, the supporting allegations,

11

the legal issues and the parties are identical. Montana

v. United States, 440 U.S. at 147; Costello uv. United

States, 365 U.S. 265 (1961); Lawlor v. National Screen

Service Corp., 349 U.S. 322, 326 (1955); Cromwell v.

County of Sac, 94 U.S. 351, 352 (1876). The only issue

arising from the trial court’s dismissal of petitioner’s

cause of action against Conrail is whether the doctrine

of collateral estoppel and/or res judicata was properly

applied, and on this issue there is no conflict.

CONCLUSION

The Petition for Writ of Certiorari should be denied

because petitioner argues issues which do not arise from

the trial court’s Opinion and Order below, because no

substantial issue is raised, and because there is no con-

flict among the Circuits over application of the doctrine

of collateral estoppel, which is the sole issue necessary

to resolve Petitioner’s claim against respondent Conrail,

as statutory agent for Penn Central.

Respectfully submitted,

Richard F. Ellenberger

Counsel of Record

Doyle, Lewis & Warner

904 National Bank Building

Toledo, OH 43604

(419) 248-1500

Attorney for Respondent

Consolidated Rail Corporation

Of Counsel

Charles E. Mechem

David S. Fortney

Consolidated Rail Corporation

1138 Six Penn Center

Philadelphia, PA 19103

(215) 977-5003