# Opposition Brief — Scaglione v. Communications Workers of America, Local 1395 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0717%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1985 - **Citation:** 474 U.S. 921 ## Text —_ Supreme Court, U.S. @; rit. & 0 No. 85-416. OCT 9 185 JOSEPH F. SPANIOL, JR. In the CLERK Supreme Court of the United States. OCTOBER TERM, 1985. JOSEPH SCAGLIONE, PETITIONER, Vv. COMMUNICATIONS WORKERS OF AMERICA, LOCAL 1395 anp AT & T TECHNOLOGIES, INC..,’ RESPONDENT. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT. Brief of Respondent, Communications Workers of America, Local 1395 in Opposition. THOMAS F. BIRMINGHAM, FLAMM & BIRMINGHAM, 50 Congress Street, Boston, Massachusetts 02109. (617) 720-3888 Attorney for Respondent, Communications Workers of America, Local 1395 BATEMAN & SLADE, INC BOSTON, MASSACHUSETTS Table of Contents. Opinions below Statutes and rule involved 2 Statement of the case 2 Reasons for denying the writ Fs Conclusion 8 Table of Authorities Cited. CASES. Barnett v. United Air Lines, Inc., 738 F.2d 358 (10th Cir.) cert. denied, 105 S.Ct. 594 (1984) 5 Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) 6 DelCostello v. Teamsters, 462 U.S. 151 (1983) . ae 3 4, 5, 6 et seq. Edwards v. Sea-Land Service, Inc., 720 F.2d 857 (Sth Cir. 1983) 5, 6 Edwards v. Teamsters Local No. 36, 719 F.2d 1036 (9th Cir. 1983) cert. denied, 104 S.Ct. 1599 (1984) $ Ernst v. Indiana Bell Telephone Company, Inc., 717 F.2d 1036 (7th Cir. 1983) cert. denied, 104 S.Ct. 707 (1984) 5 Graves v. Smith’s Transfer, 736 F.2d 819 (1st Cir. 1984) 5 Hanover Shoe v. United Machinery, 392 U.S. 481 (1968) 7 Hines v. Anchor Motor Freight, 424 U.S. 554 (1976) 7 International Union, United Auto Workers, Aero- space and Agricultural Implement Workers of Amer- ica v. Hoosier Corp., 383 U.S. 696 (1966) 6 Lawson v. Truck Drivers, 678 F.2d 250 (6th Cir. 1983) 6 il TABLE OF AUTHORITIES CITED. Layne v. Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387 (1923) 3 Lincoln v. District 9, International Association of Ma- chinists, 723 F.2d 627 (8th Cir. 1983) 5 Murray v. Branch Motor Express Co., 723 F.2d 1146 (4th Cir. 1983), cert. denied, 105 S.Ct. 292 (1984) 5 Perez v. Dana Corp., 718 F.2d 581 (3d Cir. 1983) 5, 6 Rice v. Sioux Memorial Park Cemetery, Inc., 349 U.S. 70 (1955) 3 Rogers v. Lockheed-Georgia Co. , 720 F.2d 1247 (11th Cir. 1983), cert. denied, 105 S.Ct. 292 (1984) 5 Scaglione v. Communications Workers of America, Local 1395, 759 F.2d 201 (Ist Cir. 1985) l Simpson v. Director, Office of Workers’ Compensation Programs, 681 F.2d 81 (Ist Cir. 1982) cert. denied, 457 U.S. 1127 (1983) 4 Smith v. General Motors Corp. , 747 F.2d 372 (6th Cir. 1984) 5 Storck v. Teamsters, 712 F.2d 1194 (7th Cir. 1983) 5 Thorpe v. Housing Authority of City of Durham, 393 U.S. 268 (1969) 4 United Parcel Service v. Mitchell, 451 U.S.56(1981) 4,6,7 Welyczko v. U.S. Air, Inc., 733 F.2d 239 (2d Cir.) cert. denied, 105 S.Ct. 512 (1984) 5 Zemonick v. Consolidation Coal Company, 762 F.2d 381 (4th Cir. 1984) 3 RULE. Supreme Court Rule No. 21.5 2,8 Questions Presented. I. Should DelCostello, decided by this Court in 1983, es- tabiishing a six-month statute of limitations for actions by individuals against their unions and companies, be applied retroactively to bar a suit brought in 1977, when the appropriate statute of limitations was six years against companies and three years against unions? II. Should the statute of limitations begin to run when the union has not informed its member that it has concluded its processing of the grievance? III. Does a union owe a fiduciary obligation to its members which requires it to notify its members in writing that it has conciuded the processing of a grievance, and of a right to bring suit for breach of the duty of fair representation? IV. Whether the statute of limitations in a suit by an indi- vidual against the union should begin to run where the union is still pursuing the grievance. V. When should the statute of limitations begin to run against a union for breach of the duty of fair representation? No. 85-416. In the Supreme Court of the United States. OcTOBER TERM, 1985. JOSEPH SCAGLIONE, PETITIONER, COMMUNICATIONS WORKERS OF AMERICA, LOCAL 1395 AND AT & T TECHNOLOGIES, INC., RESPONDENT. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT. Brief of Respondent, Communications Workers of America, Local 1395 in Opposition. Opinions Below. The opinion of the Court of Appeals is reported in Scaglione v. Communications Workers of America, Local 1395, 759 F.2d 201 (1st Cir. 1985). Otherwise, the statement of Petitioner identifying the opinions below is accurate. 2 Statutes and Rule Involved. Aside from the statutes listed and reproduced in the Petition, Sup. Ct. R. 21.5 may be involved in the disposition of this Petition. The Rule provides as follows: The failure of a petitioner to present with accuracy, brevity and clearness whatever is essential to a ready and adequate understanding of the points requiring consideration will be a sufficient reason for denying his petition. Statement of the Case. In addition to the Statement of the Case contained in the briefs of Respondent AT & T Technologies, Inc. (“the Com- pany”) and Petitioner (“Scaglione”), Respondent Communica- tions Workers of America, Local 1395 (“the Union”) adds the following: Although the Complaint in this matter was filed on December 29, 1977, it was not served on the Union until April, 1979. Reasons for Denying the Writ. The only issue briefed by Petitioner is whether the Court of Appeals was correct in its retroactive application of this Court’s decision in DelCostello v. Teamsters, 462 U.S. 151 (1983), establishing a six-month statute of limitations for hybrid actions alleging a breach of contract by an Employer and a breach of the duty of fair representation by a Union. The issue of Del- 3 Costello's retroactivity is not one of general importance war- ranting this Court’s consideration. Additionally, the decision below is consistent with Supreme Court precedent and the weight of authority of the Courts of Appeals. This instant petition does not raise any special or compelling issue requiring Supreme Court review. A. The Petition does Not Present Issues of General Importance Warranting This Court's Consideration. Petitioner himself unwittingly provides perhaps the strongest reason for not granting certiorari when he argues: “There are few of [sic] any suits in the country filed in 1977 alleging breach of the duty of fair representation which remains [sic] on the dockets.” [Petition at 9.] In Rice v. Sioux Memorial Park Cemetery, Inc., 349 U.S. 70, 77 (1955) Justice Frankfur- ter counselled against granting discretionary review in just this sort of situation: “[W]e should not risk inconclusive and divi- sive disposition of a case when time may further illumine or completely outmode the issues in dispute.” The issue of the retroactive application of this Court’s ruling in DelCostello is on the verge of becoming outmoded. With the passage of time, the number of pending cases brought prior to this Court’s decision in De/Costello inexorably declines. Accordingly, the retroactivity question assumes ever decreas- ing significance as fewer and fewer cases remain on the dockets which present the issue. Cf. Zemonick v. Consolidation Coal Company, 762 F.2d 381, 389 (4th Cir. 1985) (“This problem will shortly go away, if it is not already gone.”’) Manifestly, Petitioner’s case is not one “involving principles the settlement of which is of importance to the public as dis- tinguished from that of the parties.” Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387, 393 (1923). In these circumstances, since the retroactivity of DelCostello will 4 soon be of no practical consequence, certiorari should not be granted to resolve what is fast becoming merely an academic issue. B. The Holding Below is Consistent with Supreme Court Precedent and the Weight of Authority of the Courts of Appeals, and the Instant Petition Provides No Compelling Reason for Granting Review. Petitioner asserts that this Court’s 1983 ruling in DelCostello should not be applied retroactively to cases in which the cause of action accrued before April 20, 1981, when the Supreme Court issued its decision in United Parcel Service v. Mitchell, 451 U.S. 56 (1981). It is, however, a basic principle of our jurisprudence that a court is to apply the law in effect at the time it renders its decision. Thorpe v. Housing Authority of City of Durham, 393 U.S. 268, 281 (1969). Accordingly, “retroactive application of judicial decisions is the rule, not the exception.” Simpson v. Director, Office of Workers’ Com- pensation Programs, 681 F.2d 81, 84 (Ist Cir. 1982) cert. denied, 459 U.S. 1127 (1983). Undoubtedly the greatest obstacle to petitioner’s overcoming the strong presumption in favor of retroactivity is this Court’s decision in De/lCostello itself; for in that case the Court not only announced a new statute of limitations, but it also applied the time bar to extinguish the very claims before it.' Since this Court in fact applied its De/Costello ruling retroac- tively, it is not surprising that the vast majority of Courts of Appeals which have confronted the issue have followed the The claims of the De/Costello plaintiffs arose in 1977 and 1978 and suits were instituted within seven and ten months respectively. DelCostello, 451 U.S. at 155-157, 172. Scaglione’s case history is virtually indistinguishable: his cause of action arose no later than mid-May, 1977 and he did not file his complaint until December 29, 1977, over seven months later. 5 Supreme Court's lead and have imposed the six-month statute of limitations on litigants who commenced their cases prior to the DelCostello decision. Smith v. General Motors Corp., 747 F.2d 372 (6th Cir. 1984); Graves v. Smith's Transfer, 736 F.2d 819 (Ist Cir. 1984); Barnett v. United Air Lines, Inc., 738 F.2d 358 (10th Cir.) cert. denied, 105 S.Ct. 594 (1984); Welvcezko v. U.S. Air, Inc., 733 F.2d 239 (2d Cir.) cert. denied, 105 S.Ct. 512 (1984); Lincoln v. District 9, Interna- tional Association of Machinists, 723 F.2d 627 (8th Cir. 1983); Rogers v. Lockheed-Georgia Co., 720 F.2d 1247 (11th Cir. 1983), cert. denied, 105 S.Ct. 292 (1984); Edwards v. Sea- Land Service, Inc., 720 F.2d 857 (Sth Cir. 1983): Perez v. Dana Corp., 718 F.2d 581 (3d Cir. 1983); Storck v. Teamsters, 712 F.2d 1194 (7th Cir. 1983). Even those Circuits, the Ninth and the Fourth. which have not accepted retroactivity wholesale, have carved out potentially rule-swallowing excep- tions to prospective-only application of De/Costello. Glover v. United Grocers, Inc., 746 F.2d 1380 (9th Cir. 1984); Mur- ray Vv. Branch Motor Express Co., 723 F.2d 1146 (4th Cir. 1983), cert. denied, 105 S.Ct. 292 (1984). No lower court, to the best of Union Respondent's knowledge, has endorsed Petitioner's suggestion that De/Costello should be applied re- troactively to those claims which arose after April 20, 1981, but not to cases where the cause of action accrued before that date. Finally, this Court has consistently rebuffed all requests for discretionary review of the retroactivity question, irrespective of whether the lower courts have adopted or rejected retroactive application. Barnett, supra, Welyczko, supra, Rogers, supra; Murray, supra, Ernst v. Indiana Bell Telephone Company, Inc., 717 F.2d 1036 (7th Cir. 1983) cert. denied, 104 S.Ct. 707 (1984); Edwards v. Teamsters Local No. 36, 719 F.2d 1036 (9th Cir. 1983) cert. denied, 104 S.Ct. 1599 (1984). Despite Petitioner's protestations, his grounds for opposing DelCostello's retroactivity are not unique, nor does his case 6 present facts which compellingly distinguish it from the array of cases cited above. The main thrust of Petitioner's argument appears to be that he diligently pursued his complaint against the Union, and it would be inequitable to apply De/Costello to him because when he filed suit in 1977 there was no way to predict that a six-month limitation period would govern duty of fair representation actions. Although Petitioner asserts that he relied on clear past prece- dent in waiting for over six months after his cause of action accrued te sue the Union, he can, of course. point to no Supreme Court ruling (which is the starting point of analysis under Chevron Oil Co. v. Huson, 404 U.S. 97. 106 [1971]) on which he depended while delaying institution of his action. Indeed. in /nternational Union, United Auto Workers, Aero- space and Agricultural Implement Workers of America Vv. Hoosier Corp., 383 U.S. 696, 705 n.7 (1966) this Court spe- cifically reserved on the question of the appropriate statute of limitations to be applied in cases of the instant sort. Before De/Costello the lower courts were tar from uniform as to the appropriate statute of limitations to be applied in hybrid breach of contract/breach of duty actions. Instead, the pre-DelCostello statute of limitations decisions were marked by uncertainty and conflict, as has been pointed out by several Courts of Appeals. See, e.g. Lawson v. Truck Drivers, 678 F.2d 250, 254 (6th Cir. 1983); Edwards v. Sea-Land Service Inc., 720 F.2d 857-862 (Sth Cir. 1983): Perez v. Dana Corp.. 718 F.2d 581, 586 (3d Cir. 1983). In this confused context. any reliance plaintiff placed on appellate court decisions was clearly at his own risk, and does not entitle him to an exemption from the retroactive application of De/Costeilo. Moreover, despite the fact that, pre-De/Costello, the Courts of Appeals were in conflict, the seeds of that decision were sown long before Petitioner’s cause of action accrued. Even the concededly-foreshadowing case of United Parcel Service v. 7 Mitchell, 451 U.S. 56 (1981) did not represent a clean break with past precedent, but had its own genesis at least as early as 1976 in this Court’s decision in Hines v. Anchor Motor Freight, 424 U.S. 554 (1976). See Mitchell, 451 U.S. at 61-62. In these circumstances, it can hardly be concluded that DelCos- tello represented the “abrupt and fundamental shift in doctrine” which is the prerequisite for prospective — only application. Hanover Shoe v. United Machinery, 392 U.S. 481, 498 (1968). Thus, the premise of Petitioner’s argument that he was jus- tifiably taken by surprise by Mitchell and DelCostello is faulty on at least two counts: first, the lower court decisions in the statute of limitations area were in disarray, and, secondly, the Supreme Court had begun to lay the foundation for DelCostello at least a year prior to the accrual of Petitioner’s cause of action. Hines v. Anchor Motor Freight, supra. Finally, Scaglione’s putative diligence in pursuing his claim does not withstand scrutiny. Although Scaglione filed suit in 1977, he inexplicably failed to serve the complaint on either defendant until April of 1979. Thus, his case languished for over fifteen months in the office of the Clerk of Court without any action being taken by Scaglione to pursue his claim. As a practical matter, the case “began” only in 1979 when the defendants were first given notice of Scaglione’s claim. Had Scaglione in fact moved his case along with reasonable dispatch after filing the complaint, he may have avoided the statute of limitations problem he now faces. At any rate, given the inertia which characterized Scaglione’s early pursuit of his claim, this is not the appropriate case in which to consider any limitation on the retroactivity of DelCostello. C. Miscellaneous Issues. In his statement of “Questions Presented,” Petitioner lists for consideration four issues other than De/Costello’s retroac- 8 tivity. Aside from the preliminary designation of these issues, however, nothing is mentioned in the Petition regarding these matters. In these circumstances, there would appear to be no basis for granting certiorari with respect to these undiscussed questions. Cf. Sup. Ct. R. 21.5. Accordingly, Respondent Union does not address these issues on the merits. Conclusion. The Petition for Certiorari should be denied. Respectfully submitted, THOMAS F. BIRMINGHAM, FLAMM & BIRMINGHAM, 50 Congress Street, Boston, Massachusetts 02109. (617) 720-3888 | Attorney for Respondent, Communications Workers of America, Local 1395 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0717%3A3. Public record. Not legal advice.