Opposition Brief — Grimes v. Louisville & Nashville Railroad

x Supreme Cofmt, | US.

re rDev

JAN 8 1990

NO. 89-897 JOSEPH ©. SPANICL, JR.

CLERK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

KENNETH C. GRIMES

PETITIONER

VERSUS

LOUISVILLE AND NASHVILLE R. CO.

RESPONDENT

ON WRIT OF CERTIORARI TO THE

UNITED STATES SUPREME COURT

FROM THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT

BRIEF IN OPPOSITION TO RESPONDENTS

MOTION TO DISMISS

Date:

January §, 1990

Kenneth C. Grimes

621 East Gum Street

Evansville, Indiana 47713

1-812-423-1600

Counsel as Pro Se

TABLE OF CONTENTS

Page

TABLE OF CONTENTS........cecceeeeess ee

Ge A gt. II, iil

JURISDICTIONAL STATEMENT............. IV,V

SUMMARY OF ARGUMENT........eceeeeeees 1

eee sea ia pes one knee oe 08 1-9

CONCLUSION... cccccccccvecsssecssceses 9

II

TABLE OF AUTHORITIES

Cases

Bernhardt V. Polygraphic Co. Of

America, 350 U.S. 198, 100 L.Ed. Ssh

Seema meee Bee, 29 CON LC 69689... ccccccess

afas V. La Vallee, 391 U.S. 574, 4 2 Ed.

2d 554, Pi Peeing ccecesseeveevcece 6

Chessman v. Teets (1957) 354 U.S. 156,

1 &eBG. 24 1253, 77 Se Ct. 1127. ccccacees

Cone v. West Virginia Pulp and Paper Co.

(1947 ) 330 U.S. 212, 91 L.Ed., — 67

Ss Ct. 752. *e*@eeee#eseeeseeeesee#eeees *eeeseeoeeseee#ee#e*#e

ore er v. Krasner (CA. 2 NY) 572 F. 2d

CCN Fed. Secur. L. Rep. 96299,

pes 2 CCA Trade Cases 62848 Cert. Den.

pi U.S. 948, 56 L. Ed. 2d ah 7:2. Gt.

2855. @eeseeeeeesweeseeeoeweseeneseeeoaeesee#e# 86 e@ eeeesee0aexee#eee#ee#e#8e

Lj v. San Roman (1948) 332

Dae ene SE ies BGs 177, 66 S. Ct. 246,

rel den 333 U.S. 830, 92 L. Ed. 115, 68

Se Ct. rr rTerrTr re e*eeoeeeees eeeee#e*#e#ete 4

Hamilton-Brown Shoe Co. v. Wolf Bros. &

Co. (1916) 240 U.S. 251, 60 L. Ed. 629,

TN Le eesceasencess

Jo nv. New York H.H. & H.R. Co.

1954; 3 U.S 50, 3 Ss. Ct. 125,

97 L. Ed. ena See S NG Re eeneoeee 4

M Oil oducts Co. v. Mitsui &

#3; 19 » CA 2 NY 1 F.d. 381

disproved on other grounds).....e.seeeeee

. (1960) 362 U.S. 574, 4 2

dad. 2d 963, 80 S. Ct. 909 Ovrld on other

BTOUNGS.ccccccccesccscsvveee e*eee#e#e:. *e*eeee#*e#*e#es.

III

v. United States (1960) 364 U.S.

426, 5 Ll. Ed. 24 173, 51 S. Ct. 202, 3

FR Serv. 2d SS es eee ee ee

Reed & Martin Inc. v. Westinghouse

Electric Corp. (1971) CA 2 NY) 439 F. 2d

12 r 1 FR Serv. 2d DT féLee week evsies

ited States v. Mellon Bank, NA (1976,

CA 3 oy 545 F. 2d 869, 77-1 USTC 9103..

Statutes

45-U.S.C.S. 8 151 et, SCQeesessesesvreese

BS 0.8.6.9. © 153 Piret (p)...... Seat

Oe Res OB io ei viocs tc ccnd paeee

ee ee eee eer one SRS wakes

Rules

Te a) rere ere rece rT eee

ON

-_ *

JURISDICTIONAL STATEMENT

Jurisdiction is funded upon the parties

agreement to follow the Railway Labor Act.

The Railway Labor Act at 45 USCS 153 First

(P) Allows an agrieved party to file suit in

the District Court of his county. This suit

was initiated by complaint on June 11, 1981.

Following a final appealable decision of

September 14, 1984. The Appellant initiated

appeal by filing notice on 10/12/84. As a

matter of right under 28 USCS 1254, 1291 to

the Seventh Circuit Court of Appeals, the

cause was docketed in the Court of Appeals

as No. 84-2749. On June 12,1985 the Court

of Appeals rendered its decision. A request

for rehearing was denied July 25, 1985,

thereafter Appellant sought. on October 22,

1985 a Writ of Certiorari in this Court, un-

der Cause No. 85-1711. On June 2, 1986 this

Court denied the request for a Writ of Cert-

jiorari. On June 11, 1987 Appellant timely

filed a motion in the District Court. On

9/15/87, the District Court denied the motion

to confirm and dismissed the proceedings

with prejudice. On 2/17/88, the District

Court denied Appellant's motion to vacate.

On 2/26/88, Notice of Appeal was filed.

This case was appealed pursuant to the a-

greement which provides for appeal of the

District Courts decision by way of The

Railway Labor Act 45 USCS 151 et, seq. to

§ 153 First (p), which allow's for appeal

under 28 USCS 1254, 1291. This case was

then docketed in the Seventh Circuit Court

of Appeals under Docket No. 88-1381. The

three judge panel decision affirming the

District Courts judgment of the United

States Court of Appeals for the Seventh

Circuit is dated January 27, 1989. Petit-

ioner filed a petition for panel rehearing

on February 9, 1989. The petition for a

panel rehearing was denied on September 6,

1989. The petition is timely having been

filed within the ninety (90) days of this

subsequent judgment Jurisdiction is present

under 28 USC § 8 1254, 1291.

a Toten

1

SUMMARY OF ARGUMENT

Pursuant to the respondent L & N's Motion

to Dismiss filed December 28, 1989, respondent

argues that this Courts order issued under

Cause No. 85-1711 was resjudicata for the same

case under Cause No. 89-897. Implicit in this

argument is the notion that denial of a Writ

of Certiorari was an expression of opinion upon

the merits of this case. This contention is

groundless due to the fact that (1) in. this-pro-

ceeding under Cause No. 85-1711 the District

Court held jurisdiction to confirm the award,

and (2) certiorari was denied, there was no

review. Therefore, this Motion to Dismiss

should be denied.

ARGUMENT

The cause numbers issued in this proceed-

ing 85-1711 and now 89-897 are founded upon the

same complaint, (R-181-206). Jurisdiction was

acquired from the Agreement.(Exhibit (A) p. 20

Rule 33(a) ). It was agreed to follow the

Railway Labor Act, 45 USC 151 et, seq., section

153 First (p) provides for suit and Appeal of

2

the District Court's decision under 28 USCS

1254, 1291 (R 100-101).

This single proceeding had some of the

issue ruled upon February 10, 1984. (R 55-

92) A retaliation claim was held over for

trial on July 26, 1984. On September 14, 1984

the District Court entered it's judgment on

the retaliation claim. (R. 36-51) The District

Court's judgment was silent on the issue of

confirming the award. (R 55-92 and 36-51).

The Appellant appealed from this decision,

filing notice on 10/12/84. (R. 34) Appeal was

initiated as a matter of right pursuant to the

parties agreement. (Exhibit A Rule 33a) Appeal

followed 28 USCS 1254, 1291. Following the

Court of Appeals decision which affirmed the

District Court's decision and waived the en-

forcement issue as it applied to reversal of the

District Court's decision, the court entered a

denial of rehearing July 25, 1985 (R. 30), the

Appellant appealed to this Court where the

cause was assigned Docket No. 85-1711. On.

June 2, 1986 this Court denied certiorari. (R. 28)

3

‘Certiorari was denied, under the presents

of this fact. The District Court was silent

on the issue of confirming the award. This

silence meant that the Court (1) did not pass

upon the issue of confirming the award and

(R55-92, 36,51), (2) without passing upon

the award it never relinguished it's jurisdic-

tion to confirm the award. (R. 109) In view

of the above facts the respondent has implied

that denial of a Writ of Certiorari, means the

case was reviewed on the merits by this Court.

If this Court had decided to confirm the award,

it would have made it's judgment without ex-

pressly stating so in it’s order. (See R. 28)

Moreover, this action would have occurred with-

out the District Court in accordance to it's

standards believing a proper motion had been

put before it. Denial of confirmation by this

Court under Cause No. 85-1711 pursuant to the

respondents contention, would be a final

judgment on confirmation of the award. The

Supreme Court as a Court of Appeals would be

in contravention of its own decisions.

|

4

This Court has held that “the Appeals Court

may not grant a final judgment in favor of a

party who failed to so move." In this unanimous

reversal, this Court further held: "such a

circuitous method of determining the issue

would present the question initially to the

Appellate Court, when the primary discretion-

ary responsibility for it's decision rest

in the District Court, "(Johnson v. New York

N.H. & H.R. Co., 1952, 344 U.S. 48, 50, 73S.

Ct. 125, 97 L. Ed. 77. Cone v. West Virginia

Pulp and Paper Co.(1947) 330 U.S. 212, 91 L

Ed., 849 67 S. Ct. 752).

This Court has also held that an Appeals

Court "has no power to order such a judgment."

(Globe Liguuor Co. v. San Roman (1948) 332 U.S.

571, 92 L. Ed. 177, 68 S. Ct. 246, rel den

359 U.S. 690, 92 L. Ed. 1115, 68 S. Ct. 450.

Morevoer, the District Court would have

been in a better position to judge the credi-

bility of the witness. Other Supreme Court

opinions have in reference to the significance

of a denial of certiorari have held in contrast

5

to the argument of the respondent that: A ‘re-

fusal of the application for a Writ of Certior-

ari is no case equivalent to affirmance of de-

cree that is sought to be reviewed." That

"denial by the Supreme Court of the United

States of Writ of Certiorari to review judg-

ment imports no expression of opinion upon

merits of the case," = and also “denial of

a petition for certiorari without more"----

(Note: At R. 28 there is no express statement

denying confirmation of the award)----- "has

no significance as a ruling, that explicit

statement of reason for denial means what

it says." 3 It does not mean the merits were

reviewed as contended by the respondent. But,

most important this case as docketed under

89-897, “Previous denials of certiorari by

the Supreme Court do not foreclose it from

granting appropriate relief." 4

1y lton-Bro hoe Co. v. Wolf Bros. & Co.

(191 240 US 251, 60 L. Ed. 629, 36 S. Ct. 269.

2Polites v. United States (1960) 364 US 426, 5

L.Ed. 2d 173, S. Ct. 202, 3 FR Serv. 2d 1021.

continue to next PABZCe cesar eeeseessessveseeee

Le}

The difference between the two different

cause numbers in this single proceeding as

docketed in this Court is that: Cause No.

89-897 is: (1) not an appeal from silence on

the District Court judgment of 9/15/87 as to

the issue of confirmation of the award. (R 18-

25) (2) the District Court entered it's deci-

sion and "Expressly" dismissed the motion to

confirm. (R. 21) (3) the District Court re-

linguished jurisdiction. (R. 24 line 13) (4%) The

Court of Appeals affirmed the District Courts

decision.

The issue to confirm the award is proper,

before this Court. The Appellants rights are

“threatened with irretrievable loss if review

is postponed." (United States v. Mellon Bank,

NA (1976, CA 3 Pa) 545 F. 2d 6869, 77-1 USTC

9103. In comparison to this case, it is held

Parker v. Ellis (1960) 362 US 574, 4 L Ed. 2d

963, 80 S. Ct. 909 ovrld on other grounds Carafa

v. La Vallee, 391 US 234, 20 L. Ed. 2d 554, 68

Ss. Ct. 1556.

Se cauen v. Teets (1957) 354% US 156, 1 L Ed.

2d 1253, AP Cee 1127. ,

if

. that “certiorari will be granted." (Reed &

Martin Inc. v. Westinghouse Electric Corp.

(1971) CA 2 NY) 439 R. 24 1268, 14 FR Serv.

2d 1482). A case where there is at least three

other simular cases ruled on by the Supreme

Court is: (Murray Oil Products Co. v. Mitsui

& Co. (1944, CA a NY) 146 Fd 381 (disproved

on other grounds Bernhardt v. Polygraphic Co.

of America, 350 US 198, 100 L Ed. 199, 76

S. Ct. 273, 29 CCH LC 69689, on remand (CA

2 VT) 235 F 2d 209 31 CCH LC 70272) as stated

in Drayer v. Krasner (CA 2 NY) 572 F 2d 348,

CCN Fed. Secur L. Rep. 96299, 1979 2 CCA Trade

Cases 62848 Cert. Den 436 U.S. 948, 56 L. Ed.

2d 791, 98 S. Ct. 2855).

Other reasons that require plenary consider-

ation and should not be dismissed on respondents

motion. (I) The Court of Appeals has sanction-

ed. A departure from the judicial proceeding

by a lower court. (II) The District Courts

silence as to equity made no distinction between

law and equity, which violated Art. III 6 2

of the Constitution, and the Seventh Admendment.

8

The Court of Appeals affirmed the District ~

Courts decision and was also silent on the

issue of equity extending the constitutional

violation to the Court of Appeals decision .

(III) That rights in good faith agreements

should be upheld by the judicial process not

abolished, any other view of NRAB awards and

collective bargaining agreements is to do in-

justice to the clear intent of Congress. It

would defeat the object of the underlying

legislation, nullify the Railway Labor Act and

make arbitration proceedings a farce, namely

by (1) excusing the defendant from a duty inm-

posed by binding arbitration and (2) render

‘the remedy under statute and agreement as

useless. (IV) The petitioner has exhausted all

appeals, his rights will be irretrievably lost

if review is postponed and that adequate relief

cannot be had in any other forum from any other

Court, and that threse are present exceptional

circumstances warranting the exercise of this

Courts supervisory and discretionary powers.

9

CONCLUSION

Contrary to the respondents contention

this case under Cause No. 85-1711 was not

reviewed on the merits.

Wherefore, the Appellant prays this Court

will deny the motion by the respondent and

provide the relief sought by the Appellant

in his petition for Writ of Certiorari.

C. “Grimes

21 E. Gum Street

Evansville, Indiana 47713

Telephone No. 1-812-423-1600

Counsel as Pro Se

IN THE SUPREME COURT OF THE UNITED STATES

Kenneth C. Grimes

BTA ale kerat lent

vs. Cause No. 89-897

Louisville & Nashville R.Co.

Respondent-Appellee

CERTIFICATE OF SERVICE

The undersigned, Counselor Pro Se, hereby

certifies that he caused to be mailed postage

prepaid, First Class or personally served on

this 8th day of January 1990, the following

copies of this brief in response to a Motion

to Dismiss by respondent.

Forty (40) copies to

Clerk, United States Supreme Court

Washington, D.C. 20543; and

i

i: Three (3) copies to

q Attorney Galen J. White, Jr.

i Boehl, Stopher, Graves & Deindoerfer

i United Kentucky Bank Bldg.

; One Riverfront Plaza

Louisville, Ky. 40202

Telephone 1-502-589-5980

Three (3) copies to

Attorney F. Wesley Bowers

Bowers, Harrison, Kent & Miller

Fourth Floor, Permanent Savings Bldg.

Evansville, Ind. 47708

Telephone 1-812-426-1231

7

ennet - Grimes

621 E. Gum Street

Evansville, Ind. 47713

1-812-423-1600

Counsel as Pro Se