Reply Brief of the Petitioner — System Council T-4 v. National Labor Relations Board

LISRARY Supreme Court, U.S.

SUPREME COURT, U. S FILED

| pec 17 197

“Em RONERE SOUR, CLERK

Supreme Court of the United States

Octoser Term, 1971.

No. 71-646

SYSTEM COUNCIL T4, COMPRISED OF LOCAL

UNIONS 134, 165, 315, 336 AND 399 OF THE INTER-

NATIONAL BROTHERHOOD OF ELECTRICAL

WORKERS, AFL-CIO,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

REPLY BRIEF OF PETITIONER.

Rosert E. Firzcerap, Jr.,

Anna R. Lavin,

53 West Jackson Boulevard,

Chicago, Illinois 60604,

Attorneys for Petitioner.

Tet eunrmonneaates renee conrany, cwesee QB 56

IN THE

Supreme Court of the Guited States

Octoser Term, 1971.

No. 71-646.

SYSTEM COUNCIL T4, COMPRISED OF LOCAL

UNIONS 134, 165, 315, 336 AND 399 OF THE INTER-

NATIONAL BROTHERHOOD OF ELECTRICAL

WORKERS, AFL-CIO,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

REPLY BRIEF OF PETITIONER.

The Solicitor General and the Intervenor in the Court

below, filed their briefs in opposition to the Petition for

Writ of Certiorari and raised a question of jurisdiction.

It is argued that the Petition was filed two days beyond the

time limit and, therefore, the Court is without jurisdiction

to entertain the Petition. As authority the Intervenor

cited two cases: Pittsburgh Towing Co. v. Mississippi

Valley Co., 385 U. S. 32 and Levine v. United States, 380

U. S. 915, 967; and the Government cited three cases:

Teague v. Regional Commissioner of Customs, Region II,

394 U. S. 977; Scofield v. National Labor Relations Board,

394 U.S. 423, 427; Williams v. United States, 400 U.S. 909.

1. The citations of Williams and the Levine cases will not be

diseussed directly because these are memorandums of the court

which contain no express comment on the question. However, it

is interesting to speculate whether the issuance of the memoran-

dum denying Certiorari is itself an exercise of the Court’s juris-

diction. ;

>

There have been many instances in cases before this

Court where the question of the Court’s jurisdiction to

entertain a Petition for Writ of Certiorari has beer raised.

Both the Court’s own rules and Title 28 of the United

States Code have been involved in these decisions. While

the Government cites the Teague case, supra, as its author-

ity, the only discussion of this question appears in the

dissent by Justice Black. It is clear that any contention

that this Court lacks jurisdiction because of a few days

delay in filing, is without merit for the reasons enunciated

by Justice Black in that case as follows:

‘‘The statute governing the time for seeking certio-

rari in a civil case, 28 U. S. C. § 2101(c), provides that

a petition for review of any judgment or decree ‘shall

be taken or applied for within ninety days after the

entry of such judgment or decree.’ It is suggested

by the Solicitor General, on behalf of respondents

here, that this statute is ‘jurisdictional,’ and that

we must follow it. I agree, of course, that we should

follow the statute. But we must first determine what

the statute means. Commentaiors and this Court alike

have often said that the statute is ‘jurisdictional,’

and no doubt this statement is true in certain senses

of that term. But the statement certainly is not true

if it is intended to suggest that the statute deprives

this Court of all power to hear cases filed after the

90-day period, regardless of whether the delay was

caused by snowstorms making the transportation of

the mails impossible. Under no known principle of

statutory construction can such an interpretation of

§ 2101(c) be supported. Nor have I been able to find

any case interpreting the statute in this way.

Although many cases repeat the ‘jurisdictional’

formula, none of them that I have found involved

situations where the delay was wholly caused by cir-

cumstances entirely beyond the petitioner’s control.

In fact, many of the early cases interpreting Rev.

Stat. §§ 997, 1008, the predecessors of § 2101(c), made

clear that this Court had power to waive the time

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requirement of these provisions under appropriate

circumstances. In recent years this Court has on

occasion granted certiorari and decided on the merits

civil cases that had been filed after the 90-day period,

‘ without making any mention of the time question. See,

e. g., Ray +. Pierson, 386 U. S. 547, 87 S. Ct. 1213,

18 L. Ed. 2d 288 (1967) (No. 94, October Term, 1966).

In addition, we have squarely adopted this approach .

in interpreting several related statutes. The provision

governing direct appeals to this Court from a district

court, now §2101(a), provides that ‘[t]he record

shall be made up and the case docketed within sixty

days from the time such appeal is taken under rules

prescribed by the Supreme Court.’ The Court held,

under circumstances much less compelling than those

present here, that this provision did not eliminate our

power to hear appeals docketed after the 60-day

period, noting that ‘[i]t would not expedite deter-

mination of constitutional questions to dismiss appeals

because errors in practice.’ United Public Workers

of America v. Mitchell, 330 U. S. 75, 86, 67 S. Ct. 556,

91 L. Ed. 754 (1947). The cases deciding the timeli-

ness of an appeal to the court of appeals have reached

the same result under statutes that were even more

clearly phrased in mandatory terms, and did not ex-

plicitly include even an indirect reference to a judicial

rule-making power on the subject. E.g., Georgia

Hardwood Lumber Co. v. Compania, 323 U. S. 334,

65 S. Ct. 293, 89 L. Ed. 280 (1945): R. F. C. v.

Prudence Securities Advisory Group, 311 U. S. 579,

61 S. Ct. 331, 85 L. Ed. 364 (1941).’’ Teague v. Re-

gional Commissioner of Customs, Region IT, 394 U. S.

977, 981.

The citation of Scofield v. NLRB, 394 U. S. 423, 427 is

not valid preeceaent because in that decision the Court

entertained the petition and noted that in labor cases

| confusion may arise as to the exact date when the calcu-

lation of the ninety day time period should begin. The

Court then concluded that the matter of the mathematical

5. TASER oP 2 eee aa

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computation is not one taat should be strictly construed.

Nowhere in that case, particularly at page 427 is there any

statement of the conclusion that the Court lacks jurisdic-

tion because of the provisions of 28 U. S. C. 2101.

The decision in Pittsburgh Towing holds that a failure

to comply with Rule 13(1) of the Rules of the Court, in

docketing an appeal, is the basis for exercising the Court’s

discretion in dismissing the appeal. However, the “ourt

has subsequently held that this decision stands for the

proposition that the time requirements of Rule 13(1) are

not jurisdictional in nature. Johnson v. Florida, 391 U. S.

596, 88 S. Ct. 1713. Therefore, this citation for the conten-

tion that the Court lacks jurisdiction is not accurate be-

cause, under Rule 13 the Court may exercise its discretion

in entertaining or reiasing to entertain a petition. How-

ever, if Rule 22 is considered, as apparently was intended

by the Intervenor’s reference to 28 U. S. C. 2101(c), then

other factors must be considered.

Rule 22, Subsection 3 provides that a petition for writ

shall be filed in time prescribed by law. The nature of the

NLRB proceedings and particularly the statutory pro-

visions enacted by Congress to review the Court decision

must necessarily be considered. In 29 U. S. C. 160(e) and

(f) review is provided for from NLRB decisions either hy

the Board itself for an enforcement under (e) or by a party

injured by the decision under (f). Subsection (f) pro-

vides that review shall be within the time limits prescribed

by 28 U.S. C. 2112.

In 28 U. S. C. 2112 the authority is specifically given to

the various courts of appeal to determine the time within

which a request for review of the NLRB decision may be

made. Thus it is clear that Congress in the matter of the

appeal process in labor relation cases has provided fo:

less than a definite time period for the appellate review.

Of even greater significance is the nature of the rights

arising under the National Labor Relations Act.

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Petitioner submits that the nature of the cases arising

under that statute have been viewed as different in nature

than most other types of cases reviewed by the Court be-

cause not only private, but public rights are adjudicated.

U. A. W. v. Scofield and U. A. W. v. Fafnir, 86 S. Ct. 373,

382 U. S. 205. :

Finally there is a serious question as to when there

exists a final order of the Board from which Subsections

(e) and (f) review may be had. Should the party ad-

versely affected by the order decline to volur:tarily comply

with that order, the Board under the Statute must proceed

to Court for enforcement of that order and/or a contempt

citation, if there is an existing order from a Court of

Appeals.

Thus it is possible under the statute for the question of

final judgment and, therefore, the time for review by this

Court, to arise at a later time based upon an appeal from a

contempt citation by the Court of Appeals. The petitioner

submits that this Court has-clearly held in other decisions

that in order to avoid circuity and delay, it is more appro-

priate for the Court to review a decision on its merits than

to wait for a subsequent petition which may be more

within the mathematical calculation set out in the statute.

Heficn v. U. 8., 358 U. 8. 415 and Taglianetti v. U. S., 394

U. S. 316. Certainly, the petitioner wiskes to avoid any

contempt citation to allow appellate review on the merits,

of the original Board order. Therefore, pctitioner urges

the Court to review the case on its merits at this time.

It is submitted that the petitioner in particular and the

employees in general should not he denied the review be-

cause of a two-day error in calculation by the counsel for

the petitioner. The reasons for the Court granting review

under these circumstances is eloquently stated by Justice

Black in the Pittsburgh Towing Co. v. Mississippi Valley

Co., supra.

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‘‘Due to a misunderstanding among appellant’s law-

yers this case was not docketed nor was the record filed

until 22 days aiter the 60-day period prescribed by

this Court’s Rule 13(1). The Court now, quite con-

trary to its recent practices, dismisses the case pur-

suant to Rule 14(2) because of this error of appel-

lant’s lawyers. Rule 14(2) permits, but does not re-

quire, such a harsh court order to be made. Appel-

lant’s counsel, upon reporting the misunderstanding

to a member of this Court, could unquestionably have

obtained an enlargement of the time to docket the case

extending even heyond the 22 days within which the

record was actually filed. There is no indication what-

ever that the appellees, their counsel or other parties

with business before this Court have been injured—

as the Court seems to intimate without record support

—by this slight formalistic delinquency. On the con-

trary, the appellant is denied review of a judgment

setting aside an Interstate Commerce Commission

order, a type of three-judge district court judgment

from which Congress has seen fit to give aggrieved

persons a direct appeal to this Court. Thus, for a mere

paper-filing negligence of appeliant’s counsel, the pur-

pose of Congress to grant reviews of this special

category of administrative orders is frustrated.

‘*This case is now to take its place among a growing

number of others where mere procedural rules have

been used to prevent the consideration and determina-

tion of cases on their merits. See e.g.. Lord v. Hel-

mandollar, 121 U. S. App. D. C. 168, 348 F. 2d 780,

cert. denied, 383 U. S. 928, 86 S. Ct. 929, 15 L. Ed.

2d 847, Black. J., dissenting: Reiss v. Murchison, cert.

denied, 383 U. S. 946. 86 S. Ct. 1196. 16 L. Ed. 2d 209,

Black. J., dissenting; Link v. Wabash R. Co., 370 7. S.

626, 636, 82 S. Ct. 1386, 8 L. Ed. 2d 734, Black, J.,

joined by The Chief Justice, dissenting; Beaufort

Concrete Co. v. Atlantic States Constr. Co., 384 T. S.

1004, 86 S. Ct. 198, 16 T.. Fd. 24 1018. Black, J.. dis-

senting: Beutava v. United States. 385 1. S. 848, 87

S. Ct. 74. Black, J.. dissenting. I find it inconsistent

with a fair system of justice to throw out a litigant’s

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ease because his lawyer, due to negligence, or mis-

understanding, or some other reason fails to satisfy

one of many procedural time limits. If a pound of

flesh is required because of negligence of a lawyer,

why not impose the penalty on him and not his

innocent client?

‘“‘As I have previously stated, ‘The filing of court

papers on time is, of course, important in our ccurt

system. But lawsuits are not conducted to reward the

litigant whose lawyer is most diligent or to punish

the litigant whose lawyer is careless. Procedurai

paper requirements should never stand as a series of

dangerous hazards to the achievement of justice

through a fair trial on the merits.’ Beaufort Concrete

Co., supra, 384 U. S. at 1006, 86 S. Ct. at 1910, Black,

J., dissenting. The conflict between the interest of the

court clerk in the timely filing of papers and the

inter2st of the citizen in having his lawsuit tried

should be resolved in favor of the citizen, not the

court clerk. I would not dismiss this case for violation

of Rule 13(1).’’ Pittsburgh Towing Co. v. Mississippi

Valley Barge Line Co., 385 U. S. 32, 33.

For the above and foregoing reasons, petitioners submit

that the Court has jurisdiction, and should exercise such

jurisdiction to review the important question presented

by the Petition.

Respectfully submitted,

Rosert FE. Fitzcerawp, JR.,

Anna R. Lavin,

53 W. Jackson Boulevard,

Chicago, Illinois 60604,

Attorneys for Petitioner.