# Brief in Opposition to Petition for Writ of Certiorari — Clemens v. Central Railroad > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0298%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief in Opposition to Petition for Writ of Certiorari - **Published:** January 1, 1969 - **Citation:** 393 U.S. 1023 ## Text “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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0298%3A1. Public record. Not legal advice.