Brief in Opposition to Petition for Writ of Certiorari — Clemens v. Central Railroad

“UIPREME COURT. U. B

SE

SE

IN THE

Supreme Court of the United States

OCTOBER TERM, 1968

No. 728

IRA CLEMENS (Individually and on Behalf of Others

Adversely Affected),

Petitioner

Vv.

CENTRAL RAILROAD COMPANY OF NEW JERSEY,

LEHIGH AND NEW ENGLAND RAILWAY COM.

PANY AND LEHIGH AND NEW ENGLAND RAIL-

ROAD COMPANY,

Respondents

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Third Circuit.

BRIEF IN OPPOSITION

Rosert H. Kees

Mites W. KirkKpaTRICcK

Warren M. Lappon

Attorneys for the Respondents

The Fidelity Building

Philadelphia, Pa. 19109

Morean, Lewis & Bockrus

Of Counsel

PRESS OF ALLEn, LANE @ SCOTT, PHILADELPHIA

earl metic Wiig tae CS

Opinions Below ...-----------

Counter Statement of Question

Presented........--+-

Counter Statement of Statutes Bewelved....cccccccses

Counter Statement of the Case

Argument ....------------->-

Conclusion .....-------++--+°

sense eeoeeson seers”

IN THE

Supreme Court of the United States

Ocroser TeRM, 1968

No. 728

IRA CLEMENS (Individually and on Behalf of Others

Adversely Affected),

Vv.

CENTRAL RAILROAD COMPANY OF NEW JERSEY,

LEHIGH AND NEW ENGLAND RAILWAY COM-

PANY AND LEHIGH AND NEW ENGLAND RAIL-

ROAD COMPANY,

Petitioner

Respondents

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Third Circuit.

BRIEF IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Appeals (Appendix A to

Petition, pp. 24-30) is reported at 399 F. 2d 825. The

opinion of the District Court (Appendix B to Petition,

pp. 31-73) is reported at 264 F. Supp. 551. The opinion

of the Court of Appeals in the prior case Roberts v. Lehigh

and New England Ry. (Appendix C to Petition, pp. 74-81)

is reported at 323 F. 2d 219 and the District Court’s

opinion in the companion case Roberts v. Lehigh and New

England Ry. (Appendix D to Petition, pp. 82-88) is re-

ported at 211 F, Supp. 379.

2

COUNTER STATEMENT OF QUESTION

PRESENTED

Are not the plaintiffs barred by res judicata as a

result of a prior decision of the Court of Appeals against

them which sustained agreements whose invalidity was

and is essential to plaintiffs’ recovery when the present case

involves the same agreements and the same parties, claim

and controversy, the only allegedly new matter being an

asserted violation of the Interstate Commerce Act instead

of the Railway Labor Act?

COUNTER STATEMENT OF STATUTES

INVOLVED

No statute is involved. The judgment of the Court of

Appeals rests entirely upon the doctrine of res judicata."

COUNTER STATEMENT OF THE CASE

On September 26, 1961, the Interstate Commerce Com-

mission approved the abandonment by the Lehigh and

New England Railroad Company of its trackage except

for some forty miles the acquisition of which portion by

defendant Lehigh and New England Railway Company

(“Railway”) was concurrently approved. In approving the

applications the ICC provided the so-called “New Orleans”

conditions for the payment of severance pay to employees

affected by the abandonment.

In 1962, the plaintiffs, former employees of Railway,

fled their Complaint in the prior case of Roberts v. Lehigh

and New England Railway Company, 211 F. Supp. 379

(E.D. Pa., 1962), aff'd, 323 F. 2d 219 (C.A. 3, 1963). In

1 Briefed and argued before the Court of Appeals by the Respondents but

not reached by that Court, were the questions (1) whether, aside from the bind-

eet reer?

3

that case, the plaintiffs complained of mandatory retire-

ment agreements entered into between the Railway and

certain brotherhoods. It was alleged that the agreements

were invalid and that the plaintiffs were wrengfully de-

prived of severance pay by reason of their retirements

under the invalid agreements. The District Court upheld

the validity of the retirement agreements and the Court of

Appeals affirmed.

As observed by the Court of Appeals in the present

ease, “[t]here is no significant difference between the

parties” in this case and the parties in the Roberts action,

and the plaintiffs complain of exactly the same wrong, 1.0,

their involuntary retirement without severance pay pur-

suant to the retirement agreements between Railway and

the brotherhoods (Appendix A to Petition, at pages 26-27,

399 F. 2d 825, 826).

Only two differences between the first case and this

ease are noted by the Court of Appeals, neither one of

which was found sufficient to lift the bar of res judicata.

The remedy sought in the Roberts case was a declaratory

judgment that the retirement agreements were invalid and

an award of punitive damages measured by the severance

pay the plaintiffs would have received but for the allegedly

illegal agreements. The Court of Appeals pointed out that

although an order requiring arbitration is the relief re-

quested in the present cas., the ultimate relief sought by

plaintiffs in both cases was nevertheless severance pay. It

was contended also by the plaintiffs that the present case

was significantly different because in the Roberts case the

retirement agreements were attacked as a violation of the

Railroad Labor Act while in the present case they are

attacked. as a violation of the Interstate Commerce Act.

The Court of Appeals, however, held that the controversy

was the same and that any such difference between the

two cases was insufficient to avoid res judicata. (Opinion

of the Court of Appeals, Appendix A to Petition, at

page 28, 399 F. 2d 825, 827).

4

ARGUMENT

Realizing that the decision of the Court of Appeals

has no significant impact on any case other than the pres-

ent one, the petitioners have made a valiant effort to

bring before this Court questions involving the so-called

“plenary power” of the ICC in relation to the Railway

Labor Act. The decision of the Court of Appeals, however,

involves no consideration of the Interstate Commerce Act,

the Railway Labor Act, or any matters having to do with

the Interstate Commerce Commission, its powers or its

limitation.

The decision of the Court of Appeals rests entirely

upon the principles of res judicata and is required by

the decisions of the Courts of Appeals and the deci-

sions of this Court on such matter. See Opinion of the

Court of Appeals, Appendix A to Petition, at page 29,

399 F. 2d at 827-828.

Actually, it appears that petitioners’ effort is to gain

review not of the present case but of the earlier decision

of the Court of Appeals in Roberts v. Lehigh and New

England Railway Company, 323 F.2d 219 (C.A. 3, 1963).

Petitioners complain that they are compelled to take their

claims against the respondents to the National Railroad

Adjustment Board. But that route was ordained to them

by the Roberts decision in 1963 of which no review by this

Court was sought. The present decision simply precludes

the relitigation of the validity of the retirement agree-

ments which are and were the central pivot of the peti-

tioners’ claims, leaving it to the petitioners to take the

route suggested in the earlier case, i.e., an appeal to the

National Railroad Adjustment Board as to any disputed

matters involving the interpretation of those agreements.

The petitioners seek to litigate in this Court questions

long since litigated and put to rest against them in the

earlier Roberts litigation. The decision of the Court of

Appeals in the present litigation generates no broad ques-

BSG ER. ire. canals

5

tions of policy under the Interstate Commerce Act or con-

flicting decisions in respect thereof. The sole and narrow

question is the impact of the doctrine of res judicata on

the individual circumstances of this case.

CONCLUSION

For the reasons stated above, the petition for a writ

of certiorari should be denied.

Respectfully submitted,

Rosert H. Kees

Mites W. KirkpaTRICK

Warren M. Lappon

Attorneys for Respondents

Of Counsel:

Morcan, Lewis & Bockrvs