Opposition Brief — Seaboard System Railroad v. Brotherhood of Railroad Signalmen

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Office-Supreme Court, y

FILED -

x JAN 18 1995

No. 84-966

SPIN Brey,

CLERK -

IN THE

Supreme Court of the United States

OcTOBER TERM, 1984

SEABOARD SYSTEM RAILROAD, INC.

Petitioner,

Vv.

BROTHERHOOD OF RAILROAD SIGNALMEN,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Seventh Circuit

BRIEF OF RESPONDENT

BROTHERHOOD OF RAILROAD SIGNALMEN

IN OPPOSITION

CLINTON J. MILLER, III

Counsel of Record

HIGHSAW & MAHONEY, P.C.

Suite 210

1050—17th Street, NW

Washington, DC 20036

(202) 296-8500

Counsel for Respondent

Brotherhood of Railroad

Signalmen

January 18, 1985

QUESTIONS PRESENTED

1. Whether the doctrine of law of the case foreclosed

further review by the Seventh Circuit because of that court’s

decision in a prior appeal on virtually identical grounds.

2. Whether, assuming for the sake of argument that the

doctrine of law of the case did not preclude further review,

petitioner could obtain relief under the three exceedingly

narrow grounds for review permitted in arbitration awards

issued under Section 3 of the Railway Labor Act (45 U.S.C.

§ 153, First (p), (q), Second).

TABLE OF CONTENTS

QUESTIONS PRESENTED ..............:cccscssecesesecseessseesenees

TABLE OF AUTHORITIES ..........0...-..eccccessssocesssccsecees

OPINIONS BELOW, JURISDICTION AND STATU-

TORY PROVISION INVOLVED.............::csececeeeeeeeees

STATEMENT OF THE CASE .................sccccessessesssccoeseees

REASONS FOR DENYING THE WRIT..................2+

I. The Doctrine of Law of the Case Precludes

Further Review of his Matter.....................2.000+

II. The Carrier Has Failed to Establish Any of the

Three Factors Necessary for Review of Awards

of Public Law Boards Under the Railway Labor

ill

TABLE OF AUTHORITIES

Page

CASES RELIED UPON:

Appleton Electric Company v. Groves Truck Lines,

Be ce Oe © FO CR, BDO) vvsvcccnccercscevevssscescovevonves 4

Brotherhood of Railroad Signalmen v. Louisville &

Nashville R. Co., 688 F.2d 535 (7th Cir. 1982) ....... 3,4,6,7

Sweeney v. Florida East Coast Ry. Co., 389 F.2d 113

IE III Sill s2sahictschaiesistciitisnnlnhdasientinninnenssieaniioessens 5

Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89

___, SAAS Sena EE ee ne 6

STATUTES RELIED UPON:

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

Section 3, First (0), 45 U.S.C. § 153, First(o).... . 6

Section 3, First (p), 45 U.S.C. § 153, First(p).... 2,6

Section 3, Second, 45 U.S.C. § 153, Second ......... 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-966

SEABOARD SYSTEM RAILROAD, INC.

Petitioner,

Vv.

BROTHERHOOD OF RAILROAD SIGNALMEN,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Seventh Circuit

BRIEF OF RESPONDENT

BROTHERHOOD OF RAILROAD SIGNALMEN

IN OPPOSITION

Respondent, Brotherhood of Railroad Signalmen [here-

inafter, “BRS” or “Brotherhood” respectfully requests that the

Petition for Writ of Certiorari of petitioner Seaboard System

Railroad, Inc. [hereinafter, “Seaboard” or “carrier” ] to review

the judgment of the United States Court of Appeals for the

Seventh Circuit at issue herein be denied.

OPINIONS BELOW, JURISDICTION AND

STATUTORY PROVISION INVOLVED

The Opinions Below, Jurisdiction, and Statutory Provision

Involved are adequately set forth in the Petition for a Wnit of

Certiorari.!

1 The Respondent also incorporates by reference the Petitioner’s Appen-

dix [hereinafter, “Pet. App. at __”’].

STATEMENT OF THE CASE

The procedural history of this case began when the BRS

filed this action in the United States District Court for the

Southern District of Illinois on December 13, 1979. The BRS

filed a Petition to Enforce Award No. 1, Case No. | [here-

inafter, “Award”] of Public Law Board No. 1998 [ hereinafter,

“the Board”] (Pet. App. at 39a-45a) as interpreted by the

Board at the request of BRS (Pet. App. at 46a-47a),? pursuant

to the terms of Section 3, First (p) and Section 3, Second of the

Railway Labor Act, 45 U.S.C. § 153, First (p) and § 153,

Second. The filing of the Brotherhood’s enforcement petition

was a result of the failure of the carrier to comply with the

terms of the Award issued by the Board on January 24, 1978,

and the Interpretation of that Award (requested by BRS) by

the Board which was issued on January 9, 1979.

In the Award and the Interpretation that followed, the

Board had sustained the claim of G. L. Choate (hereinafter,

“‘Choate”’) against the carrier. Choate had claimed that he had

been wrongfully dismissed by the Louisville and Nashville

Railroad [hereinafter, “L&N”], and sough:: reinstatement to

his former position, along with back pay for time lost, and

restoration of all rights unimpaired pursuant to the applicable

rule of the collective bargaining agreement (quoted by the

Board in its Interpretation) (Pet. App. at 47a).

2 The carrier’s statement that the Board’s Interpretation commented that

the disability issue was one of compliance for the courts and beyond the

Board’s jurisdiction (Pet. App. at 7, n.5) is just flat wrong. The Board’s

statement that compliance was a judicial matter was specifically directed to

BRS’s request that the Board “. . . clarify the Carrier’s responsibility under the

Award.” Pet. App. at 46a. It resolved that issue by setting out the rule of the

collective bargaining agreement concerning the consequences cf a finding that

the charges against a dismissed employee were not sustained, to wit, “... he

shall be reinstated... and paid for time lost.” Pet. App. at 46a-47a. The

Board then stated that the claimant’s status during the handling of the claim

(i.e., his “disability”) was not raised by the carrier in the handling of the

claim on the property. Pet. App. at 47a.

The carrier filed its Answer and Affirmative Defense on

February 14, 1980, denying the principal allegations of the BRS

Petition to Enforce. BRS subsequently filed a Motion for

Summary Judgment on February 28, 1981, which the L&N

opposed with its Objections and its own Motion for Summary

Judgment, filed March 2, 1981. The District Court heard

argument on the cross motions on March 6, 198]. BRS then

filed a brief in response to the L&N’s motion, to which L&N

filed a reply, and a supplemental reply.

On April 23, 1981, the District Court entered judgment in

favor of the BRS and against the carrier, and ordered the

carrier to comply with the Board’s Award. The first appeal by

the L&N followed. The facts below up through the first appeal

(688 F.2d 535 (7th Cir. 1981)) are fully set forth in the

Findings of Fact of District Judge Beatty which were adopted

in toto by a majority of the Seventh Circuit panel considering

the case, appearing at 688 F.2d 538-42.

After the Seventh Circuit’s affitmance of the first District

Court order, on November 5, 1982, the District Court set forth

a schedule for the submission of affidavits and memoranda by

the parties on the issue of monetary and other relief to be

awarded to comply with the decision of Public Law Board 1998

enforced herein. Both parties submitted affidavits and memo-

randa in support of their respective positions with respect to

what was required for compliance. The carrier’s only points in

the District Court below were related to precisely the same

issues that were decided adversely when it was first before the

Seventh Circuit (except with respect to its challenge of the

award of interest). The District Court, noting that the carrier

was presenting nothing new with respect to its challenges to

enforcement of the award, once again issued an order granting

judgment to BRS (on behalf of claimant George L. Choate) for

$142,306.94 in back pay, interest from January 9, 1979, and

attorney’s fees. The carrier moved for a new trial claiming that

the District Court lacked jurisdiction to determine a remedy

because the award was ambiguous, that the Seventh Circuit and

the District Court had both mistakenly assumed that the Board

had considered evidence of Choate’s disability, and that the

interest award was improper. After denial of the motion the

Seventh Circuit affirmed primarily on the ground of law of the

case (Pet. App. at la-5a).

REASONS FOR DENYING THE WRIT

I. The Doctrine of Law of the Case Precludes Further

Review of This Matter.

The carrier first complains that the District Court and the

Seventh Circuit in essence arrogated to themselves the exclusive

jurisdiction of the Public Law Board in ordering payment of a

suim certain, reinstatement, interest and attorney fees ( Pet. App.

at 9a-1la). This is the same point it argued in the prior appeal.

There the carrier’s position was that the Public Law Board’s

order did not mandate a return to work and computation of

damages based upon the amount of time out of work because

claimant was receiving disability benefits from the Railroad

Retirement Board. The majority opinion of Judge Wood, and

the concurring opinion of Judge Will in the first appeal, both

adopted the previous opinion of Judge Beatty in the district

court, setting it forth in full in the opinion. 688 F.2d at 538-44.

That issue was clearly resolved adversely to the carrier. If the

carrier had any real dispute with respect to the previous

opinion, it should have filed a petition for a writ of certiorari at

that time, rather than prolong this already overextended matter

(to use the words of Judge Will (Pet. App. at 28a)) into

eternity.

In the second appeal the carrier plainly took issue with the

majority opinion in the first appeal, urging. in part, adoption of

the position of Judge Posner in dissent in the first appeal. It is

axiomatic that a dissent is not the controlling law of a case.

Moreover, the doctrine of law of the case is that matters

decided on appeal become the law of the case, and thus are

binding in a second appeal, absent a plain error of law. See,

Appleton Electric Company v. Groves Truck Lines, 635 F.2d 603

(7th Cir. 1980). Unless the record demonstrates that the

es are

decision below on the second appeal was clearly erroneous or

involved a novel question of law, further review is absolutely

foreclosed. Jd. The Seventh Circuit decided in the second

appeal that the carrier utterly failed to make a case for

reconsideration of the correctly applied law when this case was

first before it, correctly observing that if the carrier had been

dissatisfied in the first appeal, it could have petitioned for

rehearing or sought a writ of certiorari. Jt did neither.

The carrier’s second issue questions whether the monetary

and other relief contained in the current judgment entry of the

District Court, affirmed by the Seventh Circuit in the second

appeal, exceeds that to which the plaintiff is entitled under the

collective bargaining agreement and applicable Public Law

Board decisions and is but a restatement of the carrier’s first

issue. The award of Public Law Board 1998 as interpreted by

the neutral did not change between the carrier’s appeals. The

carrier well knew and indeed argued to the Seventh Circuit in

the first appeal that the claimed disability of the claimant

herein mandated reversal. The Court did not then do anything

other than send this case back to the District Court for

enforcement of its orders in the second appeal in light of the

clear findings of fact of the District Court which were adopted

by the Seventh Circuit in its cpinion in the first appeal.

Moreover, the carrier’s position does not bear analysis

when consideration is given to the well settled law in this area

that a court may compute the actual dollars and cents due a rail

employee if the award is sufficiently clear to permit such

computation. See, Sweeney v. Florida East Coast Ry. Co., 389

F.2d 113 (5th Cir. 1968). Exhaustive review by two separate

panels of the Seventh Circuit led that court to the conclusion in

both appeals that the award herein, and the interpretation

issued thereon are sufficiently clear to permit the judgment and

computation contained in District Court orders involved herein.

The carrier has offered no basis to disturb application of the

doctrine of the case herein.

Il. The Carrier Has Failed to Establish Any of the Three

Factors Necessary for Review of Awards of Public Law

Boards Under. the Railway Labor Act.

As Judge Wood stated in the majority opinion in the first

appeal! to the Seventh Circuit:

At the outset, we recognize, as did the district

court, that the scope of judicial review in proceedings

to enforce an award of the Public Law Board is

among the narrowest in the Law. Diamond vy.

Terminal Railway Alabama State Docks, 421 F.2d

228, 233 (Sth Cir. 1970); see also Union Pacific

Railroad Co. v. Sheehan, 439 U.S. 89, 93, 99 S.Ct.

399, 401, 58 L.Ed.2d 354 (1978) (narrow scope of

review applies to both questions of fact and questions

of law). The Board’s order may be set aside only if

the Board failed to comply with the requirements of

the Railway Labor Act, failed to confine the order or

itself to matters properly within the scope of its

jurisdiction, or for fraud or corruption by a member

of the division making the order. 45 U.S.C. § 153,

First (p).

688 F.2d at 537.

This Court stated in Union Pacific Railroad Co. v. Shee-

han, 439 U.S. 89 (1978) that it has time and time again held

that the precise requirements of 45 U.S.C. § 153 First (p) must

be met before review is possible. Twice the District Court and

the Seventh Circuit have both decided that the carrier has failed

to meet the high standard of review contained in the statute.?

As the District Court stated when this issue was first before it:

3The carrier’s argument that its petition should be granted on the

grounds that the award did not comply with the requirement of 45 U.S.C.

§ 153 First (0) that an award direct a carrier to pay the employee the sum to

which he is entitled under the award on or before a day named ( Pet. App. at

15a-16a) has never beca raised before and should not be considered for that

reason alone. Moreover, the specious nature of the carrier’s argument on this

point is revealed by its admission that it is triggered by the district court’s

failure to adopt Seaboard’s position on Choate’s receipt of disability benefits.

Pet. App. at 16, 0.10. In enforcing the Award at issue, the district court and

the Seventh Circuit on’ appeal correctly resolved that matter in accordance

with well-settled law. Pet. App. at |3a-14a, 25a-26a.

4. The history of judicial interpretations of

dispute resolution, enforcement and review provi-

sions of the Railway Labor Act, is replete with

instances of confirmation of the limited role of Courts

in the resolution of minor disputes under the Railway

Labor Act. See, Andrews v. Louisville and Nashville

Railroad Co., 406 U.S. 320, 92 S.Ct. 1562, 32

L.Ed.2d 95 (1972); Gunther v. San Diego and Ari-

zona Eastern Ry. Co., 382 U.S. 257, 86 S.Ct. 368, 15

L.Ed2d 308 (1965); Denver and Rio Grande R.R. v.

Blackett, 538 F.2d 291 (10th Cir. 1976).

688 F.2d at 542-43.

Finally, the carrier’s conduct in this case contravenes the

public policy clearly intended by the Congress that grievances

on this nation’s railroads be determined by Boards created

under the Railway Labor Act, and not by the courts. As the

order of the Seventh Circuit in the second appeal states in its

ultimate paragraph:

This order should mark the end of an “already

over-extended case.” 688 F.2d at 545 (Will, J.,

concurring ). Protracted cases such as this one under-

mine Congress’s attempts to have labor disputes

resolved principally by arbitration.

Pet. App. at 5a. Petitioner offers no convincing reasons for

reviewing the Seventh Circuit’s decision on the second appeal,

which is clearly without error in light of the well-settled law on

the topic of review of Board Awards under the Railway Labor

Act.

CONCLUSION

For the foregoing reasons, Respondent Brotherhood of

Railroad Signalmen respectfully submits that the Petition for

Writ of Certiorari to the United States Court of Appeals for the

Seventh Circuit should be denied.

Respectfully submitted,