# Reply Brief — Pennzoil Co. v. Texaco Inc.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0119%3A04

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1987
- **Citation:** 481 U.S. 1

## Text

Supreme Court of the nit }

IN THE

OCTOBER TERM, 1985 °~

-
PENNZOIL COMPANY,
—egeiant~- Appellant,
TEXACO, INC.,
Appellee.

ON APPE/*. FROM THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT

REPLY TO MOTION TO AFFIRM

LAURENCE H. TRIBE

Counsel of Record
1525 Massachusetts Avenue

Cambridge, Massachusetts 02138
(617) 495-1767

Of Counsel:

JOSEPH D. JAMAIL
JAMAIL & KOLIUS
3300 One Allen Center
Houston, Texas 77002

HARRY M. REASONER
VINSON & ELKINS
3300 First City Tower
1001 Fannin

Houston, Texas 77002

ARTHUR L. LIMAN

MARK A. BELNICK

PAUL, WEISS, RIFKIND,
WHARTON & GARRISON

345 Park Avenue

New York, New York 10154

JOHN L. JEFFERS

G. IRVIN TERRELL
BAKER & BOTTS

3000 One Shell Plaza
Houston, Texas 77002

W. JAMES KRONZER
1001 Texas, Suite 1030
Houston, Texas 77002

PAUL M. BATOR
DOUGLAS A. POE
MAYER, BROWN & PLATT
231 South LaSalle Street
Chicago, Illinois 60604

June 10, 1986

TABLE OF CONTENTS

TABLE OF AUTHORITIES.................-.-- nee

IT onc se ccececdceseusceesouscesevce

i.

iI.

Ill.

IV.

TEXACO’S ATTEMPT TO NARROW THE
SCOPE OF THE ISSUES BEFORE THIS
COURT CANNOT SUCCEED. ...............

AN AFFIRMANCE OF THE JUDGMENT BE-
LOW WOULD NECESSARILY ERODE THE
ANTI-INJUNCTION ACT. .......-...2-005-

AN AFFIRMANCE WOULD NECESSARILY
UNDERMINE YOUNGER. ............+++++:

AN AFFIRMANCE WOULD ENTAIL PREMA-
TURELY SECOND-GUESSING A _ REASON-
ABLE ACCOMMODATION OF ECONOMIC
PINES 6 600s bb bb CéWe pecnsesbeseneerere

CONCLUSION........ hoeeadeesUNesenevadesbenees

10

10

TABLE OF AUTHORITIES

Cases
Ammex Warehouse Co. v. Archer, 381 S.W.2d 478 (Tex.

Bender v. Williamsport School Dist., 106 S.Ct. 1326
Fe

Bergman v. West, 262 S.W.2d 435 (Tex. Civ. App. 1953)

Brown v. Chastain, 416 F.2d 1012 (Sth Cir. 1969), cert.
Goniad,, TFt UZ. FSR Gaeee svn caccctwienseesedess

Dandridge v. Williams, 397 U.S. 471 (1970) ..........
Davis v. Scherer, 104 S.Ct. 3012 (1984) ..............

Ganey v. Barefoot, 749 F.2d 1124 (4th Cir. 1984), cert.
Ganted, TS GL. Bae Hs sb nc cidcccccehiacdks

Glenn v. Hollums, 73 S.W.2d 1068 (Tex. Civ. App. 1934)

Henry v. First Nat’l Bank, 595 F.2d 292 (Sth Cir. 1979),
cert. denied, 444 U.S. 1074 (1980).................

Hernandez v. Finley, 471 F.Supp. 516 (N.D.Ill. 1978),
summarily aff'd sub nom. Quern v. Hernandez, 440

Puy SOO GHPTED ccccccencesacvecsseseseseeonneent

Juidice v. Vail, 430 U.S. 327 (1977). ...........0 ce eee
Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) ....
New Motor Vehicle Bd. v. Fox, 439 U.S. 96 (1978) ....
Pace v. McEwen, 604 S.W.2d 231 (Tex. Civ. App. 1980)
Railroad Comm’n v. Pullman Co., 312 U.S. 496 (1941)
Stefanelli v. Minard, 342 U.S. 117 (1951).............

Svoboda v. Alexander, 3 S.W.2d 423 (Tex. Com. App.
SEES + 6c ccccdencesotcoandshééuhkeeneneeeenel

PAGE

PAGE

Thomas v. Kadish, 748 F.2d 276 (Sth Cir. 1984), cert.

eer 10
Weinberger v. Salfi, 422 U.S. 749 (1975) ............. 10
Younger v. Harris, 401 U.S. 37 (1971) ............... 5
Statutes
ne ods 6b uh'eenbcsee ses eon.ee Ye
RECs edavocubecdececccvcscvceces 5
rir cna nececeesceesvecccecsacces
Texas Civ. Prac. & Rem. Code § 65.013.............. 8,9
Texas Prop. Code Ann. § 52.001 ............2cceeees
Rules
ee ee ce ewe edecec ade ee 8
ES is ccc ccccccccscvcsecscessces 8
I oo vc cccccvccccccccececececes 4,8
OE EE so ccc ccs cécceccccccceccevess 8
EE 8
Other Authorities
C. Wright, Federal Courts (4th ed. 1983).............

The Houston Chronicle (May 23, 1986) .............. y

INTRODUCTION

The basic refrain of Texaco’s Motion to Affirm (MTA)' is:
Don’t worry, it’ll never happen again. Appellee’s vigor in
pressing this point makes one wonder if perhaps Texaco doth
protest too much: why argue that the federal intrusion upheld
below could never happen again unless one senses that it
should never happen again? In truth, it should never have been
allowed to happen here.

For ‘what Texaco says makes this case unique is in fact
something that has yet to occur at all: a flat insistence by Texas
on rigidly enforcing the state’s lien and bond rules in the face
of an objection in its courts as to the dire and unconstitutional
results of doing. so on these facts. But Texaco cannot be
permitted to obscure the fact that it has never given the courts
of Texas a chance even to consider its objections to such rigid
enforcement. With or without Pennzoil’s express waiver of its
rights under the regime Texaco contests (see A129; JS 17 &
n.10), there is simply no reason to assume that the Texas courts
would have been any less sensitive than the federal judiciary to
Texaco’s legitimate concerns or that travelling to a federal
court half a continent away represents a more rapid or certain
path to a just outcome than would have been available in the
Texas judicial system. Indeed, the more its situation can be
fairly characterized as unique, the /ess justified is Texaco’s
unsubstantiated assumption—an assumption central to Tex-
aco’s case—that the Texas courts would blindly apply the
standard, non-constitutional bond precedents cited by Texaco
and by the court below, and would simply ignore Texaco’s
federal constitutional objections.” This Court’s decisions per-

l. References to the Motion to Affirm will be styled “MTA___”; to
the Jurisdictional Statement, “JS___”; to the Appendices to the JS,
I

2. Texaco’s forecast of futility for the state court challenge that it has
yet to make is based on its extrapolation from cases that raised no claim
under the federal Due Process Clause or under the Texas “open courts”
guarantee—and cases that presented nothing akin to Texaco’s supposedly
“unique and extraordinary circumstances” (MTA9). Texaco’s entire claim
thus rests solely on pessimistic forecasts about how Texas courts would
resolve questions that have never been put to them.

2

mit no such distrust and disdain for state courts as forums
fully willing and able to vindicate federal rights.

What cannot be deemed unique to this case is the practice of
endorsing federal “flanking movement[s] against the system of
State courts,” Stefanelli v. Minard, 342 U.S. 117, 123 (1951)—
a practice that, if warranted on these facts, must be deemed
warranted in a wide range of situations. It would be unprinci-
pled and lawless to permit the court below to excuse its
departure from precedent by saying, in effect, “only for
Texaco.” And it would be imprudent to suppose that other
“exceptions” will not be made for other litigants. It is instruc-
tive to note in this regard how casually both Texaco (MTA7 &
n.14, 13 & n.23) and the courts below (A14, 51, 76) extended,
to a situation much less compelling (see JS 12 n.6), the Fifth
Circuit’s supposedly “unique” action in the civil rights context
of Henry v. First Nat’l Bank, 595 F.2d 292 (Sth Cir. 1979),
where this Court merely denied certiorari. 444 U.S. 1074
(1980).* Even if a single point on a legal plane may be safely
ignored, two points would surely make a line, especially if one
of them were highlighted by an affirmance by this Court, in a
case that Texaco concedes falls within the obligatory jurisdic-
tion conferred by 28 U.S.C. § 1254(2). The importance and the
complexity of the federal questions presented by this appeal
are evident even from the Motion to Affirm; summary affirm-
ance is therefore unthinkable.*

3. Indeed, the district court, relying on Henry, treated the issuance of
an injunction against Texas proceedings in this case as almost routine: “[T]he
imposition of this sort of injunction is hardly unique.” (A76).

4. Nor is it too late for this Court, in its 1986-87 Term, to remit to the
Texas courts the matter of arranging security pending the appeal of Penn-
zoil’s trial court judgment—an appeal unlikely to be concluded even in the
Texas courts alone prior to mid-1987 at the earliest. But should this Court be
concerned lest developments in Texas overtake its docket and moot the
matter before principles of federalism may be vindicated here, the suitable
form of prompt disposition would be summary reversal on the ground that
the federal courts were wrong to intrude at all.

I. TEXACO’S ATTEMPT TO NARROW THE SCOPE OF
THE ISSUES BEFORE THIS COURT CANNOT SUC-
CEED.

It is understandable that Texaco should be apprehensive
about this Court reviewing the Second Circuit’s jurisdictional
holdings, but Texaco’s suggestion that the Court might prop-
erly confine its obligatory review under § 1254(2) to the merits
of the Second Circuit’s “due process ruling” (MTA14 n.26) is
altogether frivolous. For a federal appellate court cannot pass
on the merits of a lower court’s decision without first finding
that that court properly asserted jurisdiction to reach the
merits. See, e.g., C. Wright, Federal Courts 22-23 (4th ed.
1983).° .

Texaco’s attempt substantively to narrow the due process
issue presented by this appeal is no more convincing than its
procedural gambit. First, the holding below cannot be limited
to situations where supposedly “inflexible” security require-
ments would “destroy” the debtor’s right to appeal. (MTA10).
Even if the inflexibility of Texas’ requirements were con-
ceded—which it is not—only the size of the bond that it fears
would be required of it allegedly renders its appeal futile. It
would not matter to this claim whether that bond were im-
posed by an iron legislative rule or by a flexible, ad hoc judicial
determination. The Second Circuit’s holding thus authorizes
federal judicial intervention whenever a state’s supersedeas
procedure might require a bond large enough to threaten a
particular judgment debtor with irreversible enforcement.

5. “(E]very federal appellate court has a special obligation to ‘satisfy
itself not only of its own jurisdiction, but also that of the lower courts in a
cause under review,’ ” Bender v. Williamsport School Dist., 106 S.Ct. 1326,
1331 (1986). See also Juidice v. Vail, 430 U.S. 327, 331 (1977) (on direct
appeal from three-judge court, this Court should not reach “merits of the
constitutional dispute” where Younger should have led lower court to
abstain). Texaco’s only contrary authority is a curious citation to Davis v.
Scherer, 104 S.Ct. 3012 (1984), in which this Court reviewed an immunity
issue “not related” to the validity of the state law in question after declaring
that it has power to decide all the federal questions presented in “cases where
the Court of Appeals has declared a state statute unconstitutional,” id. at
3017 n.7.

4

Second, the holding below cannot be confined to situations
where the required bond or alternate security “deposit”,
Tex.R.Civ.P. 364(a), is “impossible” for any judgment debtor
to obtain. (MTAIO). For a smaller security requirement im-
posed on a less wealthy judgment debtor could just as clearly
exceed that party’s financial capacity—a common occurrence,
despite Texaco’s rhetorical question (see MTA10-11 n.19), since
many businesses might be unable to post security because of a
limited cash flow and the nature of their assets, whether or not
they have net illiquid assets in excess of the judgments against
them. Any such debtor’s appeal would be “destroyed” no less
surely than Texaco claims its own to be.

Third, the holding below cannot be confined to situations
where requiring a full bond is supposedly unnecessary to
protect the judgment creditor’s interests. (MTA10). Despite
Texaco’s repeated assertions, Pennzoil has never “conceded”
that Texaco’s size makes further security superfluous.® Tex-
aco’s assets, after all, represent oil and gas that is readily
depletable and of declining value in the midst of the current
global oil glut.’ And even the district court, concerned that
“other creditors of Texaco will . . . seek[ ] to perfect security
interests higher than that . . . available to Pennzoil” (A77),
held that, whatever the size of the appropriate judgment, it
“must be secured by assets or obligations at least equal in value
rr

6. See, e.g., Pennzoil’s Reply Brief in the Second Circuit at 5. The
references by both Texaco and the court below to such statements are
uniformly citations to hearsay newspaper reports of statements attributed to
Pennzoil officials or attorneys. Compare, e.g., MTAS n.11 and A46 with
Al116-17.

7. See A101 (District Court Findings 80-81); Kerr Affidavit at 3-5,
attached to Pennzoil’s Second Circuit Motion to Modify or Stay the
Judgment.

8. Pennzoil has devoted little effort to refuting Texaco’s assertions in
federal court about what precise on-going arrangements are needed ade-
quately to secure the state court judgment for the simple reason that this
complex matter should be resolved in the tribunals of Texas. That is why this
appeal has been brought. That the concrete risk to Pennzoil’s security
interests grew as oil prices fell and as Texaco’s approaches to possible new
creditors multiplied, see Pennzoil’s Second Circuit Motion to Modify or Stay

5

Il. AN AFFIRMANCE OF THE JUDGMENT BELOW
WOULD NECESSARILY ERODE THE ANTI-
INJUNCTION ACT.

Texaco’s astounding suggestion that this case is ‘‘narrower
than Lugar [v. Edmondson Oil Co., 457 U.S. 922 (1982)],”’
because ‘“‘this is solely an injunction action, not a suit for
damages’’ (MTA20), compietely misconceives the federalism
concerns embodied in the Anti-Injunction Act for nearly two
centuries: it is axiomatic that injunctive interference in state
proceedings is the most intrusive form of federal invasion. And
it is hard to take seriously the idea that, because Texaco could
have chosen to seek a § 1983 ‘‘injunction . . . against the state
officials involved in the proceeding’? (MTA19), the Second
Circuit’s state action holding ‘‘has no impact on the breadth of
the § 1983 exception to the Anti-Injunction Act’’ id. (original
emphasis). Obviously, Texaco sued Pennzoil instead of state
officials in an attempt to avoid Younger v. Harris, 401 U.S. 37
(1971), which would have blocked Texaco’s federal foray had
it sued ‘‘any arm of the state.’’ (A34). Only the Second
Circuit’s expansion of the state action concept enabled it to
drive a wedge between the Anti-Injunction Act and Younger,
creating the opening through which Texaco obtained federal
relief pendente lite.

Texaco’s Motion to Affirm distorts Lugar by undermining
the only principled limitations that can prevent Lugar from
becoming an all-purpose doctrine transforming every state-
court judgment winner who seeks enforcement into ‘“‘the

the Judgment at 4, while accounting for a delayed decision to press this
appeal, cf. MTA6 n.12, is, of course, legally immaterial.

Pennzoil declines to speculate on Texaco’s motives for seeking federal
intervention in Texas judicial proceedings. Compare MTA6 & n.12. But it
must be noted that, contrary to Texaco’s misrepresentation to this Court that
Texaco “did not seek” to have the Texas judgment “review[ed] or
modififed]” by a federal court (MTA7), Texaco has in fact used the federal
judiciary in just such an effort to undo its Texas trial loss: its federal
complaint sought “appellate review on the merits of the Texas judgment in
violation of 28 U.S.C. § 1257 as interpreted by [this] Court” (A5), and the
district court granted injunctive relief to that end before being rebuked and
reversed by the Second Circuit. (A19). Indeed, Texaco persists in arguing to
this Court that the Texas trial court’s judgment was “erroneous.” (MTA12)
(original emphasis).

6

state.’’ Lugar held a state-court plaintiff to be a state actor
only because state law abdicated to him the unilateral and
unsupervised power to determine, simply by filing a compiaint
and an ex parte attachment petition, see 457 U.S. at 924, both
that a debt was owed and that security therefor was required
pending trial. Pennzoil wields no such power. The determina-
tion that Texaco owes Pennzoil damages was made by a judge
and jury after a 4% month trial; the decisio.: »..sumptively to
require security for all such judgments was made by the Texas
Legislature when it enacted § 52.001 and by the Texas Supreme
Court when it promulgated Rule 364; and the decision whether
to require full security on these facts would be made by the
Texas courts upon Texaco’s timely request. See Ill infra. A
winning plaintiff like Pennzoil, which the Second Circuit
credits with ‘‘unilateral’’ power to make ‘‘state officials do
[its] bidding’’ (A28), is in truth relegated to the role of delivery
boy:” all the power at issue is wielded by organs and agents of
the State of Texas. The suggestion that Pennzoil is here
exercising unsupervised and unilaterai official state power can
be advanced, therefore, only by completely and artificially
severing the issue of arranging security pending appeal from
the judicia! process culminating in the judgment being ap-
pealed.

Iii. AN AFFIRMANCE WOULD NECESSARILY UNDER-
MINE YOUNGER.

Most alarming is the Second Circuit’s holding that Younger
can be evaded by a federal plaintiff’s unilateral, self-serving
prediction that resort to state judicial procedures would be
futile. The gravamen of Texaco’s argument is not that it could
not have raised its constitutional challenge in the Texas courts,
but that such a challenge would probably have veen denied,
since none had ever succeeded in the past. (MTA27 n.53). Even

9. Pennzoil’s role in enforcing its judgment against Texaco would be
limited to asking the Texas court for a writ of execution and delivering it to a
sheriff. (A25; MTAI1 n.2). And its role in perfecting judgment liens against
Texaco would likewise be limited to obtaining an abstract of the trial court’s
judgment from one court clerk and handing it to another for recording and
filing. (A25-26; MTA2 n.3).

7

if that were the Younger standard—which it is not'’—Texaco
persists in ignoring the fact that the Texas courts have never
been given the opportunity to address a challenge like Texaco’s
to the lien and bond provisions.''

More fundamentally, Texaco’s claim that Texas remedies are
inadequate—a claim without which Texaco’s entire case crum-
bles—is built upon three gross misrepresentations of Texas
law. If Texaco and the Second Circuit had taken Texas law
seriously, they would have found several rapid ways for Tex-
aco to stay the judgment while challenging the lien and bond
provisions. '

First, like the judgment debtor in Pace v. McEwen, 604
S.W.2d 231, 233 (Tex.Civ.App. 1980), Texaco could have

10. Texaco errs in relying on Hernandez v. Finley, 471 F.Supp. 516
(N.D.Ill. 1978), summarily aff’d sub nom. Quern v. Hernandez, 440 U.S.
951 (1979), for the proposition that something less than a “procedural bar”
to raising one’s federal claims will suffice to suspend the abstention require-
ment. (MTA26 n.51). The court in Hernandez in fact found just such an
absolute procedural bar when it accepted the argument that the pre-judgment
attachment statute at issue “restrict[ed] challenges to the attachment exclu-
sively to the issues of whether prescribed procedures have been followed and
whether the allegations of the affidavit are true.” 471 F.Supp. at 519.

11. Texaco fails to mention that the Texas “conference” it requested on
December 13, 1986 (MTA4)—three days after it sought injunctive relief and
appellate review of the Texas judgment in the federal district court in White
Plains—would have concerned only alleged “uncertainties” in the Paragraph
7 “stand-still” arrangement, and not the state or federal constitutionality of
applying the lien and bond provisions. (A10). Texaco also elides the fact that
it submitted its “request” in forma pauperis by letter, not by motion or
petition, and the fact that Texaco failed to respond to requests by both
Pennzoil and the Texas trial court that Texaco comply with the Texas Rules
of Civil Procedure if it wished a hearing. (See District Court Findings Nos.
82, 85-87, A101-02).

12. Texaco nowhere denies that, even without posting a supersedeas
bond, it still had 3% months in which to ask the Texas courts for relief.
Texaco filed its federal injunction action on December 10, 1985—before the
Texas judgment had even been entered—even though the stand-still agree-
ment to which Texaco had that very day consented ensured that Texaco need
fear no enforcement of the judgment or attachment of liens until late March
of 1986. (A7 & n.3; A127-28).

8

sought a stay of the judgment directly from the Texas Court of
Appeals without filing any supersedeas bond."

Second, the Texas trial court itself is ‘‘vested’’ with the
power ‘‘to grant a temporary injunction to prevent damage to
an appellant,’’ when enforcement of a civil judgment would
render the right to appeal ‘‘meaningless.’’ Pace, supra, 604
S.W.2d at 233, 232. (See JS 18 n.11)."*

Third, as Pennzoil previously explained (JS 18 n.11), a
Texas trial court has explicit statutory power to “‘stay a
judgment’’ (not merely to stay its execution) if the complainant
can show himself ‘‘equitably entitled tu be relieved against’’
part or all of that judgment. Tex.Civ.Prac. & Rem.Code
§ 65.013. Contrary to Texaco’s contention that such relief will
not lie if the judgment debtor has not filed a supersedeas bond
in compliance with Rule 364 (MTA27 n.53), that rule, as
amended in 1984, explicitly recognizes that in appropriate
circumstances other statutes may govern the suspension of a
judgment.'* Texaco’s authorities for the proposition that
§ 65.013 cannot be applied to mitigate the full bond require-
ment of Rule 364 pre-date the 1984 amendment by half a
century and are in any event utterly irrelevant: neither case
involved a constitutional challenge such as Texaco’s; in neither

13. | Texaco is simply wrong in stating that it would have had to waive its
new trial motion in order to perfect an appeal and petition the appellate
court for such relief in mid-December of 1985. (MTA27 n.53). It is black
letter law in Texas that Texaco could have perfected its appeal by filing a very
small cost bond (not a supersedeas bond) on the very day the trial court
entered judgment, see Tex.R.Civ.P. 363; and “if a motion for new trial is
timely filed by any party, the trial court, regardless of whether an appeal has
been perfected, has plenary power to grant a new trial. . . .” Tex.R.Civ.P.
329b(e) (emphasis added). See Ammex Warehouse Co. v. Archer, 381 S.W.2d
478, 482 (Tex. 1964); Bergman v. West, 262 S.W.2d 435, 436 (Tex.Civ.App.
1953).

14. Contrary to Texaco’s inexcusable misrepresentation, the Pace court
enjoined a “forced sale” of real property that had been ordered to satisfy “a
money judgment,” 604 S.W.2d at 232—not a “judgment. . . for recovery of
specific real property.” (MTA27 n.53). The case thus sounded in Rule 364(b),
not (c), and is directly on point.

15. |The 1984 amendment to paragraph (a) of Rule 364 added the
prefatory phrase “Unless otherwise provided by law. . . .” to the language
requiring a full supersedeas bond for the suspension of a judgment. (See JS
19 n.11).

9

case did the judgment debtor attack the required bond as
unaffordable or unnecessary; and neither case was in fact
governed by the “‘statutory predecessor to § 65.013’’ (MTA27
n.53).

Thus timely relief in the Texas courts was fully available.
And Texas’ interest in being afforded an opportunity (subject
to Supreme Court review) to grant such relief in the course of
administering its appellate system is no less basic than its
interest in assuring that its judicial ‘‘orders and judgments are
not rendered nugatory.’’ Juidice v. Vail, 430 U.S. 327, 336
n.12 (1977). These systemic state interests in overseeing and
fine-tuning the appellate process in light of applicable federal
constitutional norms remain the same whomever the state
court judgment loser sues in federal court.'’ Only the Second
Circuit’s disregard of these interests permitted it.to address the
merits of Texaco’s constitutional arguments. '®

16. The judgment debtors in Glenn v. Hollums, 73 S.W.2d 1068
(Tex.Civ.App. 1934), sought to enjoin a judgment on the basis of an entirely
distinct Depression-era foreclosure moratorium statute, id. at 1069-70, and in
Svoboda v. Alexander, 3 S.W.2d 423 (Tex.Com.App. 1928), which did not
even involve a supersedeas bond, a temporary injunction against enforce-
ment of a judgment was in fact granted by the trial court. /d. at 424. Even if
Texaco’s authorities were arguably relevant, Railroad Comm’n v. Pullman
Co., 312 U.S. 496, 498 (1941), would preclude a federal resolution of the
resulting state-law issue. But in fact Texaco has yet to produce even arguable
support for its mechanical reading of Texas law.

17. Having deliberately declined to sue any Texas officials in an attempt
to avoid Younger, Texaco cannot now attribute significance to the fact that
no Texas officer is a party. (MTA8 n.16). But if Texaco’s profligate use of
newspaper “authorities” is acceptable, it seems that the Texas Attorney
General declined to press a separate appeal because of his confidence that the
State’s interests would be well represented by Pennzoil and because of his
conclusion that “there [was] no need to file duplicate documents.” The
Houston Chronicle, § 1, p.22 (May 23, 1986).

18. | While Texaco persists in arguing that the federal interference
wrought by its foray to White Plains somehow made the appellate process in
Texas more meaningful (MTA24), it has not denied—nor could it—that
Congress has never conferred upon lower federal courts the power to
displace state tribunals or this Court in protecting the state appellate process
and this Court’s jurisdiction.

Texaco (MTA28) and the court below (A22-23) err in treating the Rooker/
Feldman doctrine as applicable only where a litigant seeks to reverse a prior
state court decision—treatment that would reduce the doctrine to one of

10

IV. AN AFFIRMANCE WOULD ENTAIL PREMATURELY
SECOND-GUESSING A REASONABLE ACCOMMO-
DATION OF ECONOMIC INTERESTS.

Reaching a due process claim it should have left to the state
courts, the Second Circuit held it irrational (A44) for Texas to
require full security without determining whether doing so is
justified on these facts. Even assuming the Texas courts would
decline to make that determination, it is hardly irrational for a
state to deem a trial’s completion a watershed, and to use that
event as the basis for shifting to the loser any risk of economic
loss if the trial result is later overturned.’ ‘“‘Once having
enacted a reasonable general scheme . . . [a state] [i]s not
required to provide for a prior individualized hearing each and
every time the provisions’ of the scheme adversely affect a
given party. New Motor Vehicle Bd. v. Fox, 439 U.S. 96, 108
(1978).”° Yet Texas might well have done just that—if Texaco
had only asked.

CONCLUSION

Far from posing a ‘‘narrow and unusual case [that] does not
merit plenary review’’ (MTA30), the decision below constitutes
a frontal and wide-ranging assault on judicial federalism and
principled adjudication—one that could not be upheld by this
Court without serious systemic consequences. Probable juris-
diction should therefore be noted.

mere issue preclusion. At least two other circuits have clearly rejected this
treatment. See, e.g., Brown v. Chastain, 416 F.2d 1012, 1013 (Sth Cir. 1969),
cert. denied, 397 U.S. 951 (1970); Ganev v. Barefoot, 749 F.2d 1124, 1127-28
(4th Cir. 1984), cert. denied, 105 S.Ct. 3484 (1985). Texaco’s contrary
assertion (MTA29 n.56) reveals a plain misreading of Thomas v. Kadish, 748
F.2d 276, 282 (Sth Cir. 1984), cert. denied, 105 S.Ct. 3531 (1985).

19. Applying such a flat rule would not remotely resemble a decision to
render an appeal ineffectual by denying counsel or a trial transcript to
indigent criminal defendants; or to allow ineffective assistance of counsel to
squander a criminal defendant’s appeal; or to allow a clerical snafu to
obliterate forever a civil plaintiff’s administrative cause of action. (See MTA
10 & n.18).

20. See also Weinberger v. Salfi, 422 U.S. 749, 772-74, 776-77, 782-83
(1975); Dandridge v. Williams, 397 U.S. 471, 484-85 (1970).

Respectfully submitted,

LAURENCE H. TRIBE

Counsel of Record

1525 Massachusetts Avenue
Cambridge, Massachusetts 02138

(617) 495-1767

Of Counsel:

JOSEPH D. JAMAIL
JAMAIL & KOLIUS
3300 One Allen Center
Houston, Texas 77002

HARRY M. REASONER
VINSON & ELKINS
3300 First City Tower
1001 Fannin

Houston, Texas 77002

ARTHUR L. LIMAN

MARK A. BELNICK

PAUL, WEISS, RIFKIND,
WHARTON & GARRISON

345 Park Avenue

New York, New York 10154

JOHN L. JEFFERS

G. IRVIN TERRELL
BAKER & BOTTS

3000 One Shell Plaza
Houston, Texas 77002

W. JAMES KRONZER
1001 Texas, Suite 1030
Houston, Texas 77002

PAUL M. BATOR
DOUGLAS A. POE
MAYER, BROWN & PLATT
231 South LaSalle Street
Chicago, Illinois 60604

June 10, 1986

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0119%3A04. Public record. Not legal advice.