# Opposition Brief — Bethlehem Mines Corp. v. United Mine Workers of America > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0905%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1972 - **Citation:** 409 U.S. 844 ## Text HN FASAS ered: hE LEP em a fet et A Sh oa. t 4 SCA tt ; ~ / wary ee Lae 2 dt J ‘ pacthurha ester ticier crore Hs ah Beye Sb, Heh So eRe toy ting gid Fe v Be 2 Ae Ha a epic 4 hed Wide wk it . fas 4 x Beek Set Oe vie INDEX Page BCounterstatement of the Facts ....... 1 I. An Award of Attorney's Fees is Consistent with this Court's... Decision in The Boys Markets, Inc. v. Retail Clerks Union Local 770,398 U.S. 235 (1970), the Congressional Policy Under- lying the Federal Labor Sta- tutes and the "Accommodation DOCGREME” concccctdscsevveccsose § II. Fees Were Properly Awarded Following the Summary Re- versal of the Injunction Orders by the Court of BEES fecavcastecscvssacvcecs 13 III.» Respondents were Entitled to Recover Fees Against Peti- tioners Under Section 7 of the Norris-LaGuardia Act Re- gardless of the Limitations in and Amount of the Bond DE Set ewsreatedbacwecacase Be I cid a ace Buea eae emake ae oat « * TABLE OF CASES AND AUTHORITIES CASES: Atomic Oil Co. v. Bardahl Oil Co., i i 7° 1100 (CLA. 10, gait Eaten abigty pea ara — Sa Inc. 4 Retail Clerks, - . * 70 re fe fe fee ee ee eh ee Brotherhood of RR. Trainmen v. Chicsgo River & I.R. Co., 353 Cinderella Theatre Co. v. Si riters al Union, 6 F fee. -D. ch., PererrerTT ~= 4 J. & E. Ry. v. Brotherhood ° RB. Trainmen, 502 F.2d 540 oe , eee ee eee eee eee eee Gartner v. Soloner, 384 F.2d 348 . 3, ee | Heiser v. Woodruff, 128 F.2d 178 A. 10, Houston & No. Tex Motor Fr. Lines ov F. Supp ex., j eee ee ee eee ere ere ee International Ladies Garment Workers ee ca pepbeliy Garment Co., i 24a 2 C.A. 5) cert. denied, 352 U.S. 852 (19555) ..... Kahan v. Rosenstiel, 424 F.2d 161 TC.A. 3 1970), cert, denied Te Gi, GOP acioctrecenncerstéccs il a. - 333 = Lawrence Vv. St. Louis-S.F. Ry. ’ 2758 U.S. 225 (1929) eee eee eee eens ‘I wadison Shipping Corp. v. National Maritime Scr Soh F. Supp. 22 TE.D. Pa., 1962) “eee ee ee eee “**ee Janssen v. Shown, 53 F.2d 608 . o DO» “ee ee eee “eee ee ee eee Meeker v. Stuart, 289 F.2d 902 . oD.Cee 1961) eee ee eee re ee . Milk Wagon Drivers’ Union v. Lake Valley Co., 311 U.S. 91 (1940) ... Mills v. Electric Auto-Lite Co., U.S. a ne fe fe fe eee e erm emhUcrmCUc eo hme Mitchell v. Riegel Textile, Inc., 259 F.2d 954 (C.A.b-C., 1958) .... Newman v. Ca Park Enterprises, 590 U.S. re Public Service Commn. v. Brashear reign Lines, 312 u.s. 631 ,} Russell v. Farley, 105 U.S. 433 J ) ere fe fe feereeeeeee © eft ff fe ef © ref fe © © '] Rutland Ry. Corp. v. Brotherhood of Locomotive Eng., 307 F.2d 21 . * -—*9 7 . Sinclair eet ie Co. v. Atkinson, - iv - aa v. Ticonic Nat'l Bank, Be 161 1939) “eee eee eee enee United Motors Service v. Tropic- Aire, 57 F.2d 479 (cA. Se 1932). United States v. — 312 te ie Se BE GEEED coecocccece ~ Ry. Co. v. System deration, 300 U.S. 515 (1937).. STATUTES: Clayton Act, 28 U.S.C. 382 (1940).. Coal Mine Health and Safety Act of 1969, 30 U.S.C. 801, et seq. . Labor-Management Relations Act, Section 301 (29 U.S.C. 185) ..... Norris-LaGuardia Act: Section 1, 29 U.S.C. 101 Section 4, 29 U.S.C. 104 Section 7, 29 U.S.C. 107 Section 8, 29 U.S.C. 108 ........ Section 9, 29 U.S.C. 109 ........ Section 10, 29 U.S.C. 110 Railway Labor Act, 45 U.S.C. Se ee ee -~ YF «= Page MISCELLANEOUS: F. Frankfurter & N. Greene, The Labor Injunction (19350) ...... 6,16,26, 30-31 Federal Rule of Civil Procedure 65 . 7,18,19, 24,25, 26,27 H.R. Rept. No. 669, Rept. of House Comm. on Judiciary on H.R. 53515 (March 2, 1932) ......ceeeeeeeneee 30 H.R. Rept. No. 793, House Conf. Rept. to Accompany H.R. 5315 (March 14, S9FTE) ccccccccecee besawnnte eter o* 30 7 Moore's Federal Practice (2d ed.). 23,25-26, 28 Note, Accommodation of the Norris— LaGuardia Act to Other Federal TT Statutes, 72 Harv. L. Rev. 35% “ee eeeeeeeeeeeeeneeneeeeeeeee 9 Note, The New Federal Law of Labor Injunctions, 79 Yale L.J. 1593, i i Vcc eeceheneenecces 48,36 Remarks of Senator Norris, 75 Cong. Rec. 4508 (Feb. 23, 1952) ........ 16,31 Remarks of Senator Taft, 195 Cong. Rec. 6603 (SO™ Cong., ist Sess., June ya 1947 ) “eeeeeeveeeeeeeenvreeee g S. Rept. No. 163 of Comm. on Judiciary on S. 935 (72d Cong., ist Sess., Feb. 4, 1932) .......-. 30 c+ a 7 Eat BPO = oS IN THE SUPREME COURT OF THE UNITED STATES October Term, 1971 No. 71-1490 BETHLEHEM MINES CORPORATION and REPUBLIC STEEL CORPORATION, Petitioners, Ve UNITED MINE WORKERS OF AMERICA, et al., Respondents, OPPOSITION TO PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT COUNTERSTATEMENT OF THE FACTS Petitioners' Statement omits full description of the first round of proceed- ings which gave rise to respondents! mo- tion for attorneys fees. On Sunday night, June 21, 1970, the coal miners employed by petitioners refused to enter their mines because of petitioners' failure to | i) ! provide safe working conditions undergrou and the failure of the United States Bure of Mines to require petitioners to confor to the health and safety standards estab- lished in the 1969 Federal Coal Mine Heal and Safety Act, 350 U.S.C. 801, et seq. Within hours, the nation's major ste producers, owners of "captive" coal mines filed suits under Section 501 of the Labo Management Relations Act, 29 U.S.C. 185, the United States District Court for the Western District of Pennsylvania to enjoi the walkouts. Hearings on the cases con- menced on June 23, 1970, at which time un eee Te ee signed counsel urged alternatively that t ; Norris-LaGuardia Act, 29 U.S.C. 101, et s : deprived the court of jurisdiction and tl 3 defendants were prepared to prove, pursu- ant to 29 U.S.C. 143, the existence of "abnormally dangerous" working conditions in the coal mines in question, ; Refusing to hear the miners' eviden : the district court at the beginning of tl second day of hearings announced that it would enjoin the walkout. When regular United Mine Workers counsel retired to chambers with company counsel to work ou the terms of the orders, undersigned LE ee IP OE EOE ELLIS ET 8 RETO, prs Ly _ ~ 3 = counsel was retained as counsel by various UMWA local unions. Not surprisingly, when court reconvened, the orders which union and company had agreed to did not enjoin the districts or international, but did en- join the locals, their officers and members and required the miners to return to work regardless of dangerous conditions then prevailing. On behalf of the locals and certain individuals, undersigned counsel noticed appeals within hours and promptly moved in the Court of Appeals for summary reversal. Two days later, the Court of Appeals heard emergency argument, and on June 30, less than a week after the injunctions were entered, the Court of Appeals unani- mously granted summary reversal and re- manded the cases to the district court. (A copy of that decision is appended hereto as Respondents' Appendix. The Court of Appeals decision is highly rele- vant for it reveals the context within which the request for fees was made, that the motion was occasioned by an egregious abuse of federal equity powers in a labor dispute -- the very sort of abuse that a the Norris-LaGuardia Act was designed to pr vent and redress.) Shortly after remand, undersigned coun sel filed their motion for fees pursuant tc Section 7 of the Norris-LaGuardia Act, 29 U.S.C. 107. The same district judge whose decision had been summarily reversed there- after ruled that his original injunction orders had not been erroneously or improvi- dently entered and that the motions : for fees were premature. On February 3 and 28, 1972, the Unite States Court of Appeals unanimously reverse .the district court holding, that all counsel were entitled to fees. 2/ 3/ sions are reported at 456 F.2d 483 and 456 F.2d 1233. Those deci- 1/ A month after counsel herein filed a motion for fees, regular UMWA counsel, the same counsel who had worked out the terms of the orders and failed to promptly seek summary reversal, filed identical motions for fees. i 2/ Judge Kalodner dissented in part ar- ; guing that, defendants could recover fees 3 in excess of the injunction bonds only by 2 commencing an ancillary action. + Petitioners herein, along with the other steel producers involved in the original appeals, United States Steel [Footnote continued on following page.7 | WW ! I. AN AWARD OF ATTORNEY'S FEES IS CONSISTENT WITH THIS COURT'S DECISION IN THE BOYS MARKETS, INC, V. RETAIL CLERKS UNION, LOCAL 770, 398 U.S. 235 (1970), THE CONGRESSIONAL POLICY UNDER- LYING THE FEDERAL LABOR STATUTES AND THE "ACCOMMODATION DOCTRINE" - Boys Markets holds that in certain carefully limited circumstances the prin- cipal anti-injunction section of the Norris-LaGuardia Act -- Section 4 (29 U.S.C. 104) -- should be relaxed so that a union's contractual no-strike obligation may be specifically enforced. Despite the explicit limiting language of this Court that its holding was "a narrow one" which did not "underscore the vitality of the Norris-LaGuardia Act", petitioners never- theless initially contend that as a direct result of Boys Markets, every other pro- vision of the Act, particularly those in- volving procedural safeguards, should 3/ {Footnote continued from preceding page.7 Corporation and Jones & Laughlin Steel Corpo- ration, have filed a Petition for Writ of Certiorari involving the February 3, 1972 opinion entered by the Third Circuit (No. 71-1409). et ye likewise be considered of no effect when- ever an employer launches a lawsuit under S 301 of LMRA, 29 U.S.C. 185. Not sur- prisingly, there is nothing in the way of authority or policy to support such a wooder and heavy-handed proposition, Apart from Section 4's ban on injunc- tions, the bulk of the Norris-—LaGuardia: Act is designed to correct the many procedural abuses that infected administration of the labor injunction in the federal courts dur- ing the first third of me ane This tently recognized that procedural abuse was Court : and commentators have consis- the chief evil to be remedied, and that in the eyes of the Act's draftsmen, "Emphasis upon procedural safeguards in the use of the injunction must therefore rank first." F, Frankfurter and N. Greene, The Labor Injunction 202.(1930). Accordingly, 8 7 of the Act creates a protective procedural scheme -- including curbs on ex parte in- junctions, specific findings required from the court, and provision for full and A/ See, e.g., Milk Wagon Drivers' Union v. Lake Valley Co., 311 U.S. 91, 102 (1940) and Boys Markets, 398 U.S. at 250. 5/ See, e.g., Note, The New Federal Law of Labor Injunctions, 79 Yale L.J. 1593, 1594 (1970). St bit aed iat Vv" wot ee a ee ee oe — complete hearing after notice -- to control any application for injunctive relief in a labor dispute, Section 7 also provides that the damage caused by wrongful issuance of an injunctive order, including attorney's fees and other costs of a successful defense, shall be borne by the moving party. The present case is an apt illustra- tion of the continuing need for scrupulous adherence to the procedural safeguards of § 7. Here the district court in a trun- cated hearing accomplished nearly every procedural error available, and ordered coal miners to return to work in unsafe mines, only to be reversed -- and chasti sed severely ---by a unanimous Court of Appeals in less than’ a week. The procedural safeguards of 8 7 and other provisions of the Act U are in no 6/ The protedures of Federal Rule 65 are less strict in many particulars. See 25-27, infra, e 7/ ~£E.g., § 8, 29 U.S.C. 108 (clean hands requirement); 3 9, 29 U.S.C. 109 (limiting the scope of labor injunctions); § 10, 29 U.S.C. 110 (expedited appeal). ‘“ — eee Si rit 8 ee Sak >» ey oes way undercut by'the holding or rationale of Boys Markets. There the Court decided a narrow question: whether Norris-LaGuardia's flat ban on labor injunctions should yield to the pro-arbitration policy of the subse- quently enacted LMRA, when suit is brought to enforce a union's no-strike promise, and when the strike is over an arbitrable griev- ance. Boys Markets answers in the affirma- tive, but the opinion takes great pains to limit any conflict with the neticiwe of Norris-LaGuardia. 8/ Only "the anti- injunction section" of Norris-LaGuardia -- or "§ 4" -- is affected by the decision, 596 U.S. at 250, 251. "Our holding in the present case is a narrow one. We do not undermine the vitality of the Norris-LaGuardia Act * * Nor does it follow from what we have said that injunctive relief is appropriate as a mat- ter of course in every case of a strike over an arbitrable grievance." Id., at 253-254. 8/ Five times the Court repeats that the judicial duty is to "accommodate", "reconcile", and "harmonize" Norris- LaGuardia and § 301 of LMRA. 398 U.S. at 241, 299,. 250, 252. BLATANT NA La ETTORE ti LL AMELIA LMT LOY LIL LT MPI IT ‘ Boys Markets does not gratuitously "repeal" the other sections of Norris-LaGuardia, any we than Congress did when providing for enforcement of collective bargaining agree- ments in the federal courts. 2 But that is precisely what petitioners urge. Boys Markets takes its place in a long line of cases 10/ that strive to achieve accommodation between particular provisions of Norris-LaGuardia and "ostensibly incon- sistent provisions" of later labor legis- lation. 398 U.S. at 250. Obviously there is no occasion for invoking the Accommoda- tion Doctrine -- nothing to "harmonize" or "reconcile", id. at 241, 251, and no reason 9/ See Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 223 (1962)(dissenting opin- ion adopted by the Court in Boys Markets): "Congress, clearly, had no intention of abandoning wholesale the Norris-LaGuardia policies in contract suits ..." See also Remaxgks of Senator Taft, 93 Cong. Rec. 6603 (80 Cong., ist Sess., June 5, 1947). 10/ See generally Note, Accommodation of the Norris-LaGuardia Act to other Federal Statutes, 72 Harv. L. Rev. 354 (1958). - ae -— ie for Norris-LaGuardia to give way -- absent an insistent clash of provisions or poli- cies. In the case of 8 301 of LMRA, nei- ther letter nor spirit collides with the attorney's fee provision or the other pro- cedural safeguards of Norris-LaGuardia's 8 7. The Boys Markets opinion itself as- sumes that the procedural provisions retain "vitalityn No court has held otherwise, and recent commentary has properly judged that after Boys Market there is greater 1i’ The Court's opinion expressly invokes Norris-—LaGuardia's "clean hands" require- ment, § 8, 29 U.S.C. 108, to show that the Act itself favors arbitration. In stating the findings that must be made before an injunction may issue in an employer's con- tract suit, the Court follows § 7 of Norris- LaGuardia. See 398 U.S. at 254. The Court of Appeals noted that the finding required by 8 7(e) (public officers unable to pro- tect employer properly) would not be ap- propriate in the usual contract enforce- ment case, and to that limited extent § 7 must be "accommodated to the policy under- lying § 301" and relaxed accordingly. See Petitioners' Appendix E, at 48-49. RTGS RATIOS SIS RT ee ea | need for the procedural protections of In a strictly analogous situation, the lower courts have continued to enforce Norris-LaGuardia's procedural safeguards -- including the attorney's fee provision 13/ -- in employer suits brought under the Rail- way Labor Act even though this Court has held that accommodation of the two enact- ments necessitates relaxation of Norris- LaGuardia's anti-injunction section. 15/ An arid notion of "uniformity" is all that petitioners offer to justify judicial 12/ See Note, The New Federal Law of Labor Injunctions, 79 Yale L.J. 1593, 1602 (1970) ("The Court should . . . resolve procedural questions in favor of the union... ."). 13 See, Elgin, J. & E. Ry. v. Brotherhood of RR. Trainmen, 3502 F.2d ci:0 [C.ms Fe 1962) (§ 7 attorney's fee provision ap- plied in Railway Labor~Act suit). See also Rutland Ry. Corp. v. Brotherhood of Locomotive Eng., 507 F.2d 21 (C.A. 2, 1962) (8 8 "clean hands" provision applied). 14 Brotherhood of RR. Trainmen v. Chicago iver & I.R. Co., 353 U.S. 30 (1957). In subsequent cases, however, the courts have followed the Norris-LaGuardia procedural safeguards ... ." Note, The New Federal Law of Labor Injunctions, 79 Yale L.J. 1593, 1606, n. 61 (1970). a - 12 - repeal of the attorney's fee provision, 42/ It is true that some states have attorney's fee provisions in their "little Norris- LaGuardia" enactments, and that others do not. But no principle of federal law re- quires federal equity practice to conform to those state procedures that are least protective of employees' rights. Congress has an obviously legitimate interest in legislating to guard against and to redress abuse of federal injunctive powers. Cer- tainly in the case of attorney's fees, the difference between federal and state prac- tice could not possibly result in the phe- nomenon that troubled the Boys Markets Court, “a wholesale dislocation in the al- location of judicial business between the state and federal courts." 398 U.S. at 247, The situation at hand is squarely covered by the sensible language of Boys Markets: 15/ The notion that employer suits are unduly "chilled" by the provision is dis- cussed by the Court of Appeals, Petitioners’ Appendix E, at 49-50, and properly dis- carded. BOLT LEN RINE NENTS A ET SRNR EIEN HEGEL PDT TAME TOE, SOAS ARO E EL CRP NA BRETT LF y ae — » 3 = "/-u_/niformity - . . could hardly require, as a practical matter, that labor law be administered identically in all courts, for un- doubtedly a certain diversity exists among state and federal systems in matters of procedur: t and remedial detail ... ." id., at 246, II. FEES WERE PROPERLY AWARDED FOLLOWING THE SUMMARY RE- VERSAL OF THE INJUNCTION ORDERS BY THE COURT OF APPEALS Petitioners ask the Court to decide whether, in the circumstances of this case, there was a "final decision" in the injunc- tive proceedings below, rendering the mo- tion for attorney's fees timely. Two separate panels of the Court of Appeals unanimously agreed that the injunctive phase of this lawsuit 16 has long since been terminated "for all practical pur- poses." See Petitioners' Appendix E, at 43 and 45. The issue turns wholly on the 16/ The pendency of respondents' counter- claims below in no way affetts the final- ity of the injunctive side of the proceed- ing. That is the holding of Madison Ship- ping Corp. v. National Maritime Union, 204 F. Supp. 22, 23 (E.D. Pa., 1962), a case mistakenly cited by petitioners. = ae : — — 17 — particular facts of the instant case, and falls far short of the level of signifi- cance that would warrant review by this Court. There is no conflict between the cases cited by petitioners and the Court of Ap- peals' holding below. The principle of petitioners' cases is that a defendant's motion to recover damages caused by wrong- ful preliminary restraint might be deferred when a lawsuit is moving on for trial of the plaintiff's request for a permanent 17/ After the erroneous preliminary injunc- tions were vacated by the Court of Appeals o June 30, 1970, the employers renewed their request for preliminary relief and the mat- ter came on for de novo hearing on July 9. By that time, however, there was no case to be heard -- the stoppages complained of had ceased, and none were anticipated. The parties so stipulated and the cause was continued indefinitely. In the ensuing period of almost two years petitioners have never sought to bring the action back to life. Should they ever do so, they j would have to contend with § 7 of Norris- LaGuardia, 29 U.S.C. 109, which says that every labor injunction "shall include only a prohibition of such specific act or acts as may be expressly complained of in the bill of complaint... ." See Virginian Ry. Co. v. System Federation, 300 U.S. 515 (1937). LEAP RENIN, IRS INME RES AT = 2, BYP OR RE or =7" injunction, 49/ But the injunctive proceed- ings in the present case came to final rest almost two years ago, and there never will be a trial on permanent injunctive relier,22/ In Norris-LaGuardia cases, moreover, there are special reasons not to postpone a defendant's motion for fees pending de- cision of the employer's request for perma- nent injunctive relief, in the event such relief is in fact pursued. 20/ The very reason for special safeguards to control the labor injunction lies in the fact that wrongful preliminary restraint usually i8/ Lawrence v. St. Louis-S.F. Ry., 278 U.S. 228, 233 (1929), speaks only of "dis- cretion" to defer tie motion. In Janssen v. Shown, 53 F.2d 608 (C.A. 9, 1931), the preliminary restraint was never adjudged erroneous, but was simply withdrawn after a time by consent of the parties. And in Meeker v, Stuart, 289 F.2d 902 (C.A.D.C., 1961), also not involving a labor dispute, the Court of Appeals' five-sentence af- firmance contains not a word on the issue under discussion. 19/ Respondents needn't argue that the case is "moot" -- indeed, respondents' own counterclaims are pending below -- but only that the injunctive side of the case has yveen "finally determined.” Petitioners' mootness cases are beside the point. 20/ Petitioners cite but one case involv- ing a labor dispute -- and that one mis- cited. See note 16, supra. a. spells doom for the union's cause, even if - 16 - later corrected, and thus the preliminary proceedings "make the issue of final relief a practical nullity." F. Frankfurter and N. Greene, The Labor Injunction 200 (1930), = As the Act's sponsor said during floor debate in the Senate, " . . . defendants in these cases are financially unable to defend themselves in court. Most of the injunction proceedings never go beyond a restraining order or at best beyond a temporary in- junction." Remarks of Senator Norris, 75 Cong. Rec. 4508 (Feb. 23, 1932). In short, the clear intent of Congress is ; that 8 7 damages for wrongful preliminary restraint be recoverable at the earliest point compatible with orderly judicial de- cisionmaking. And see Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970) (ap- proving “interim award" of attorney's fees j before final judgment); Kahan v. Rosenstiel, : 424 F.2d 161 (C.A. 3, 1970), cert. denied, sub nom., Glen Alden Corp. v. Kahan, 398 U.S. 950. eT eae 21/ See*also Note, The New Federal Law of Labor Injunctions, 79 Yale L.J. 1593, 1594 (1970) ("in practice the temporary restrain- ing order usually defeated the union's cause"), a a a i A RT a ae Ris 17 ~ SJ III. RESPONDENTS WERE ENTITLED TO RE- COVER FEES AGAINST PETITIONERS UNDER SECTION 7 OF THE NORRIS- LAGUARDIA ACT REGARDLESS OF THE LIMITATIONS IN AND AMOUNT OF THE BOND POSTED Petitioners' final arguments amount to a paradoxical contention: even though § 7 of Norris-LaGuardia grants attorney's fees to a successful defendant and even if § 7 is fully applicable here, nonetheless there can be no recovery of attorney's fees in this case. The petition offers two reasons for this result -- that the injunction bonds prepared and filed by petitioners (a) did not happen to mention attorney's fees and (b) together the bonds posted total an amount less than the reasonable fees stipu- lated and awarded below.22/ The purported conflict between Courts of Appeals on the two points just noted is, in fact, spurious. Only one of the circuit court decisions invoked by petitioners -- International Ladies Garment Workers U. v. Donnelly Garment Co., 147 F.2d 246 (C.A. 8), 22/ Fees and expenses of about $11,350 were stipulated as reasonable by the parties. Petitioners' four injunction bonds total $4,000. - 18 = cert. denied, 325 U.S. 852 (1945) -- in- volved a labor dispute. The others, not within the ambit of Norris-LaGuardia, 22/ do not clash with the holding of the Court of Appeals below, and despite some sweep- ing language, Donnelly may readily be distinguished. The Donnelly court held that the injunction bonds in that case had been posted with specific reference to the Clayton Act, and could not be construed to cover attorney's fees since that Act excludes fees as an element of injunction damages. Id, at 253. Significantly, the very bond provision which led the Donnelly court to its conclusion, the bond provi- sion in the Clayton Act, 28 U.S.C. 382 (1940), was repealed in 1948 because sub- section (c) of Rule 65 of the Federal Rules contained nearly identical language. Furthermore, the subsequent broad amend- ments to subsection (e: of Rule 65 in 1948 insured that injunctions issued in labor disputes pursuant to Rule 65 were required to conform with the requirements of the 237 United Motors Service v. Tropic-Aire, 57 F.2d 479 (C.A. 8, 1932), focus Of major reliance by petitioners, is a patent in- fringement case decided some three weeks before Norris-LaGuardia was enacted. LENE OP RF EE RE I ae EN AE NN EH ARM BINT « | b Norris-LaGuardia Act, Thus, Donnelly is distinguishable because it pre-dated the repeal of the Clayton Act bond provision and the adoption of the broad amendments to subsection (e) ef Rule 65, both of which greatly clarified the confusing and conflicting state of the law which existed when Donnelly was decided, The Donnelly court also denied re- covery in excess of the bonds because the claimants were estopped by their failure ever to protest the amount of the many bonds posted, though the liti- gation there lasted eight years, yielded a bill of some $103,000 in defense fees and costs, included a trip to the Supreme Court because of defendants' own pointless attempt to empanel a three-judge court, and produced four separate restraining orders with separate bonds before defen- dants pressed their claim for fees. Id, at 248-50, 253. Here, by contrast, the bonds were not posted pursuant t° a statute that excluded fees from a "oe 24 ' , recovery, 24/ and there is no basis for finding respondents estopped to challenge the amount of the bonds. 25/ 24 The bonds are conditioned to pay costs and damages," and as the court below noted, "There is nothing in the record specifying on what authority the bonds were required...." Petitioners' Appendix E at 51-52. Respondents were not given an opportunity to examine the bonds prior to their filing. Id. at 42. 25/ After the preliminary injunctions were issued on June 24, 1970, respondents immediately sought review in the Court of q Appeals: emergency argument was held on ' June 26, and the orders vacated on June 30, : Thereafter, respondents promptly filed q their motions for fees. Delaying the é appeal, in order to protest the amount of : the injunction bonds in the trial court, would have been unconscionable in light of the unsafe conditions in the mines where the men had been ordered to resume work. In any event respondents took every reasonable step to mitigate their damages and cannot be said to have slept on their rights. ee Ml talons Se ee ee —_ ~~ More broadly, it is significant that Donnelly's many dicta have not been fol- lowed by any other Court of Appeals in any Norris-LaGuardia case, nor reaffirmed by the Eighth Circuit, in the 27 years since the case was decided. The decision has, for every practical purpose, been strictly limited to the peculiar factual situation involved, The opinion's restrictive pro- nouncements concerning award of attorney's fees may be traced, as the principal opinion of the court below makes clear, to outmoded notions of the limited powers of a federal equity court, and are all the more discredited in light of this Court's recent reaffirmation of the federal equity's nonstatutory powers to award fees. See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 393 (1970). (a) Petitioners advance the conten- tion that an injunction bond conditioned to pay "costs and damages" cannot be read to cover attorney's fees. This proposi- tion runs counter to common sense when, as here, such fees are made a recoverable element of damages by statute, And indeed, as the court below took pains to i De bang 6 EL tt tetanic Oil th | fo ~) t show, such a position is not supported by petitioners' own authority. What we have is authority to the effect that attorney's fees are not normally recoverable by a wrongfully enjoined defen- dant, a rule of federal common law that concededly operates vnless changed by statute. Petitioners' cases merely state this rule; they do not say that the words "costs and damages" “ae fail to embrace attorney's fees. Such deci- sions are beside the point in a case in- 27/ for the volving a labor injunction, 26/ Aside from Donnelly, discussed supra at text, petitioners' major case is Heiser v. Woodruff, 128 F.2d 178 (C.A. 10, T9423), involving a bankruptcy proceeding. In Heiser the court denied attorney's fees to the wrongfully restrained party, even though the injunction bond in that case expressly specified that attorney's fees were covered. Plainly Heiser did not turn on "construction" of the terms of the bond, but involved application of a federal rule of damages that has no place in a case controlled by the Norris-LaGuardia Act. 27/ Any number of cases not involving labor disputes follow Heiser, and peti- tioners cite a few. Apart from Norris- LaGuardia or some other statute, Heiser of course states the law. SOTA ES. 4 PIP OREO ag Soe eel oS eS Ce a ee 77 hole point of 8 7 of Norris-LaGuardia was 0 change the federal common law and render ittorney's fees recoverable in every case nvolving wrongful restraint in a labor lispute, The sensible ruling of the court below s that an injunction bond for "costs and lamages," in a case involving a labor dis- ute, “should be construed to include all he elements of damage which are recover- ible under 8 7" of Norris-LaGuvardia. This s an application of black-letter law: ",../T/7he general federal rule is that attorney's fees are not recoverable under Zin june tion? bonds. A federal statute may, of course, provide that in situations covered by it the bond is_to include attorney's fees; and attorney's fees would then be recover- able...." (Emphasis supplied. ) Moore's Federal Practice, para. 65.10, p. 1658-59 (2d ed.). See also Donnelly, upra, at 253 ("the language of the tatute is written into the bond, though mitted by inadvertence or intention"); lgin, J. & E. Ry. v. Brotherhood of R.R. rainmen, 302 F.2d 540 (C.A. 7, 1962) Norris-LaGuardia case); Local Union No. 68, Painters v. Barker Painting Co., 4 F.2d 879 (C.A.D.C., 1928). Be: » « Petitioners say they meant to post their bonds "pursuant to" Federal Rule 65, and that their subjective intent rules out any possibility of construing the bonds in line with the applicable federal statute, Obviously the "intent" of employers seeking labor injunctions cannot determine the matter. 28/ No such litigant will seek to extend his liability nor will he admit that the Norris-LaGuardia Act has any bearing on his cause. Likewise, the Act's mandatory language concerning attorney's fees carinot depend on the trial judge's happening to announce that the bond is "pursuant to" the Act. The whole purpose of the Act is to control abuse of the labor injunction by the federal judiciary, and it makes no sense to say "that the court which issues an injunction should have the power to foreclose recovery on the injunction bond." Atomic Oil Co. v. Bardahl Oil Co., 28/ What effect such "intent" may have on a surety's liability, as distinct from that of a principal, is not at issue here. ~— . @& ee 6 «tlleeehCCO be od Kb R R N b p I { LI | < 9 19 F.2d 1097, 1100 (C.A. 10, 1969), 22/ ud see 7 Moore's Federal Practice, para. 5.09, p. 1655 (failure to require proper curity is “legal error and...ground for ypellate reversal"). in any event, a bond posted "pursuant " Federal Rule 65 presumably is affected ‘part (e) of that Rul e20/ -) was added to ellay any fears that the : "Subdivision 7 Under petitioners’ approach, the more ‘roneous an injunction, the more it is oof against injunction damages. A judge o erroneously thinks that Norris-LaGuardia es not bar a labor injunction in the case hand, is obviously likely to compound e error by concluding that the Act also S no bearing on the injunction bond's verage. / "These rules do not modify any statute of the United States relating to temporary restraining orders and pre- liminary injunctions in actions affecting employer and employee...." 65(e), Fed. R. Civ. Proc. Originally le 65(e) specifically mentioned the rris-LaGuardia Act; the 1948 amendment oadened the Rule's language to its esent scope. Rule might modify the law relating to labor injunctions." Id., para. 65.02, p. l6ll. 31/ (b) Petitioners contend that the total face amount of their injunction bonds sets the upper limit of any recovery under 8 7 of Norris-LaGuardia. They point to cases holding that injunction damages in excess of the injunction bond are not normally recoverable. Once again the point may readily be conceded: in the ordinary, nonstatutory case, federal equity does not award damages beyond the ; bond. This judge-made limitation on injunction damages has generally been 317 Rule 65(c), relating to injunction security, was taken "bodily" from the Clayton Act. 7 Moore's Federal Practice, para. 65.02, p. 1610. It is well known that Norris-LaGuardia was drafted with the shortcomings of the Clayton Act in mind. See F. Frankfurter and N. Greene, supra, at 184-85. In particular, Tage Oe ee? ",,..the Norris-LaGuardia Act requires a bond that is more extensive in coverage than the Clayton Act, upon which 65(c) is based. Among other things the bond covers ‘a reasonable attorney's fee.'" idles eal ncats i rhe SN REM cS RRS Ca 7 Moore's Federal Practice, at 1658 n. 1. & A aR a ia eae