# Petition for Writ of Certiorari — Korean Air Lines Co. v. Forman > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1570%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1996 - **Citation:** 519 U.S. 1028 ## Text ~jtie Lo Fi No. %- 9 E 530 OCI 319% } j GPmE OF THE CLERK IN THE Supreme Court of the United States OCTOBER TERM, 1996 > KOREAN AIR LINES CO., LTD., Petitioner, ERIC W. FORMAN, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT PETITION FOR A WRIT OF CERTIORARI GEORGE N. TOMPKINS, JR. ANDREW J. HARAKAS* TOMPKINS, HARAKAS, ELSASSER & TOMPKINS Courthouse Square 140 Grand Street White Plains, New York 10601 (914) 428-2525 Counsel for Petitioner KOREAN AIR LINES Co., LTD. * Counsel of Record cm ON ART QUESTIONS PRESENTED FOR REVIEW While the appeal was pending in the court below, the Court decided Zicherman v. Korean Air Lines, 116 S. Ct. 629 (1996), and held that (a) the types of recoverable compen- satory damages in an action to which the Warsaw Conven- tion* applies must be determined by reference to domestic law and (b) the applicable domestic law, DOHSA**, allows for the recovery of pecuniary damages only. The appeal in the court below arises out of the same event as involved in Zicherman. After directing the parties, at the request of Petitioner KAL, to address the effect of Zicherman on the pending appeal, the court below declined to decide whether nonpecuniary pre-death pain and suffering damages are recoverable under the Warsaw Convention or DOHSA after Zicherman. The questions presented for review are: 1. Whether the court below was required to apply, to a pending but undecided appeal, the holding, rationale and prin- ciple of the intervening decision of the Court in Zicherman, so as to preclude an award of nonpecuniary pre-death pain and suffering damages on the basis of the Warsaw Convention alone? 2. Whether, in light of Zicherman, the pecuniary damages allowed by DOHSA may be supplemented with nonpecuniary damages for pre-death pain and suffering, on the basis of the Warsaw Convention, general maritime law or state law? He Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934), reprinted in note following 49 U.S.C. § 40105. _ Death on the High Seas Act, 46 U.S.C. App. § 761 et seg. il LIST OF ALL PARTIES AND RULE 29.1 LISTING A. Petitioner The Petitioner is KOREAN AIR LINES Co., LTD. (herein- after “KAL”) who was the defendant-appellant/cross-appellee in the Court of Appeals. KAL is a Korean corporation engaged in the business of international transportation by air of passengers, baggage and cargo. KAL is a member of The Hanjin Group of Korea, which comprises companies under common management direction. KAL’s investments in secu- rities and/or affiliated companies consist of the following: Air Cargo Terminal Co., Ltd. Air Korea Co., Ltd. Daehan Oil Pipeline Corporation Government Bonds Hana Bank Hanil Bank Hanjin Construction Co., Ltd. Hanjin Data Communication Hanjin Heavy Industry Co., Ltd. Hanjin International Corp. Hanjin Int’! Japan Co., Ltd. Hanjin Investment Securities Co., Ltd. Hanjin Shipping Co., Ltd. Hyundai Oil Refinery Co., Ltd. Korea Air Terminal Service Co., Ltd. Korea Freight Transportation Co., Ltd. Korea Investment Corporation Korean French Banking Corporation Korea Technology Development Co., Ltd. Kyungki Bank, Ltd. Peace Bank of Korea Terminal One Management Inc. The Company Fund The Korea Economic Daily a i i ee el ee iii B. Respondent The Respondent is Eric W. Forman who was the plaintiff- appellee/cross-appellant in the Court of Appeals. iV TABLE OF CONTENTS QUESTIONS PRESENTED FOR REVIEW ......----- i LIST OF ALL PARTIES AND RULE 29.1 LISTING... ii TABLE OF AUTHORITIES ......----++++ssseeerrereee Vil OPINIONS BELOW ........----ssseeereeereressttt | JURISDICTION. ........-ccccecceceescccsessccccesecsees 1 STATUTORY AND TREATY PROVISIONS INVOLVED .........0cccccccccssccsccncccccccsooes 1 STATEMENT OF THE CASE.......-----+++++0eee00e 2 A. Nature of the Case ........-----eseeeereeeeees 2 B. Disposition Below ......----++-ssesssrrteee 2 1. The Rulings of the District Court ...... 2 2. The Appeal and the Intervening Supreme Court Decision in Zicherman v. Korean Air Lines ......--- Rukeeeawake- 3 3. The Post-Zicherman Supplemental Brief in the Court Below ........--+---: 5 4. The Decision of the Court Below....... 5 5. The Post-Zicherman Decisions of Other COMAUED coin cans cdcensenseseusseenesenes® 6 —- REASONS FOR GRANTING THE PETITION I. II. THE DECISION OF THE COURT BELOW IS IN CONFLICT WITH THE COURT’S DECI- SION IN ZICHERMAN, DECISIONS OF THE COURT REQUIRING APPLICATION OF ITS DECISIONS RETROACTIVELY TO PENDING CASES AND THE COURT OF APPEALS FOR SEeee INEST GROAN hiss. odeaieck nine Sc A. The Court Below Has Upheld an Award of Nonpecuniary Damages Even Though the Legal Basis for the Award, Relied Upon by the District Court, Has Expressly and Directly Been Rejected by the Court in WN hics cin ixcheeectiienk B. The Court Below Was Obliged to Apply the Intervening Supreme Court Decision in Zicherman to the Pending PU ie ce kstaci C. The Decision of the Court Below Is in Direct Conflict With a Decision of the Court of Appeals for the Ninth Circuit............... CONSIDERATIONS OF FAIRNESS AND PUBLIC CONFIDENCE IN THE JUDICIAL REVIEW PROCESS MANDATE REVIEW OF Se RMR ihctidhig eet cia a A. The Court Below Improperly Applied the “Reply Brief Waiver Rule” ................. 1] 12 14 14 vi PAGE B. The Refusal of the Court Below to Apply the Intervening Decision of the Court in Zicherman Calls for an Exercise of the . Court’s Supervisory Power............0 16 III. THE COURT BELOW HAS DECLINED TO ADDRESS AN IMPORTANT QUESTION OF FEDERAL LAW WHICH SHOULD BE SERINE xi x29 scccnsnenieeted Veen re oS 17 MN carsiNnsdededipieadyehs mises 21 bhatt rN la Vii TABLE OF AUTHORITIES Cases: PAGE Arcadia, Ohio v. Ohio Power Co., 498 U.S. 73 (1990) 18 Azzopardi v. Ocean Drilling & Exploration Co., 742 F.2d 890 (Sth Cir. ee eR 4n, 18, 19, 21 Barbe v. Drummond, 507 F.2d 794 (1st Cir. th daac CEES OPP oes AA GE ee 4n, 18, 19, 21 Beirn et al. v. Korean Air Lines, Nos. 83-4624, 83-4626 (E.D.N-Y. ie OS een ane 20 Bickel v. Korean Air Lines, 83 F.3d 127 (6th Cir. 1996), amended on reh’g,__ F.3d __, 1996 WL 490375 oe els PO. COD conn ec ak ihe k ioe. passim Bowden v. Korean Air Lines, 814 F. Supp. 592 (E.D. Mich. 1993), rev’d sub nom. Bickel v. Korean Air Lines, 83 F.3d 127 (6th Cir. 1996), amended on reh’g,__ F.3d __, 1996 WL 490375 (6th Cir. Pt Si SET diitertintinioe cot 3n, 7n, 8 Boys Markets, Inc. v. Retail Clerks Union, Local PIDs Ow ee BOS CAPT cack osc ke, 12 Carducci v. Reagan, 714 F.2d 171 (D.C. Cir. 1983)... 15 Dugas v. Nat'l Aircraft Corp., 438 F.2d 1386 [Pee MPR ct 4n, 18, 19, 21 Federal Savings & Loan Ins. Corp. v. Haralson, Dio Cee OTe Che CME BOOTY once sine occ no cnc 15 Forman v. Korean Air Lines, No. 83-3578, memo. op. (D.D.C. June 6, 1995) (“Forman fr) ....4, 3, On, 16 Graham v. Milky Way Barge, Inc., 824 F.2d 376 RP A SEEN is vewciecieckescumeco cs 4n, 18, 19, 21 Vili PAGE Gray v. Lockheed, 880 F. Supp. 1559 (N.D. Ga. Matyas cet or en aa 4n, 18, 19, 21 Gulf Offshore Co. y. Mobil Oil Corp., 453 U.S. 473 AOR sess irtsisep¥odiveseceec ee 17 Harper v. Virginia Dept. of Taxation, 509 U.S. 86 atid dogee te ohe ey res hia 1] Herbert v. Nat’! Academy of Sciences, 974 F.2d 192 RE Wives G 15n Hormel y. Helvering, 312 U.S. 552 Co | ORE 15, 16 In re Air Crash Disaster Near Honolulu, Hawaii on Feb. 24, 1989, 783 F. Supp. 1261 (N.D. Cal. diate pete Sh et a 4n, 18 In re Air Disaster Near Honolulu, Hawaii, on Feb. 24, 1989, 792 F. Supp. 1541 (N_D. Cal. a, eae 18 In re Inflight Explosion on TWA Aircraft Approaching Athens, Greece on Apr. 2, 1986, 778 F. Supp. 625 (E.D.NLY. 1991), rev’d on other grounds, 975 F.2d 35 (2d Cir. 1992), cert. denied, 507 U:S. 1051 ica Aube ea Poet ote GN 3n In re Korean Air Lines Disaster of Sept. 1, 1983, No. 96-8013 (D.C. Cir. Amy. 135, 1906)......... 6, 20 In re Korean Air Lines Disaster of Sept. 1, 1983, MDL No. 565, Nos. 83-3587 et al., memo. op. (D.D.C. Apr. 8, 1993) (“In re KAL-DDC /”)....}, 2, 6n, 8n, 10n In re Korean Air Lines Disaster of Sept. 1, i963, F. Supp. __, 1996 WL 428519 (D.D.C. June 4, 1996) (“In re KAL-DDC IT”), interlocutory appeal granted, No. 96-8013 (D.C. Cir. WOR SR WE secs 6, 8, 13, 16, 20 ON I OE ALE tn MK. Ch dri ebed hs ia ix PAGE James B. Beam Distilling Co. v. Georgia, 501 U.S. AEE bila hacceive Sedu cn citacc hie cake ce, 11 Lebron v. Nat’! R.R. Passenger Corp., 115 S. Ct. 961 ERR asd sco kcis idee eee Se a 18 Maikovich v. Korean Air Lines, Nos. 94-5371, sep ects od (OE TAR 10 OX BIRR ERPS ee no ea 5n McAleer v. Smith, 791 F. Supp. 923 (D.R.I. cg | ROR RARE ent doey AB Den atin ig 4n, 18, 19, 21 Oldham v. Korean Air Lines, Nos. 94-5321, 94-5338 ees Nat inky scien Pika Aiccicat bck ih 5n Pescatore v. Pan Am World Airways, ___ F.3d __, 1996 WL 507165 (2d Cir. Sept. 9, 1996) ............... 10 Preston v. Frantz, 11 F.3d 357 (2d Cir. Rea hss ech beniekesee be riie see 4n, 18, 19, 21 Rivers v. Roadway Express, 114 S. Ct. 1510 (1994)...11, 12 Rye v. U.S. Steel Min. Co., Inc., 856 F. Supp. 274 is Pe OO se Oi Sin cc ree ee, 4n, 18, 19, 21 Saavedra v. Korean Air Lines, 93 F.3d 547 (9th Cir. ecto, OO EE Ee NOPE AE PODS OLE RD Ege aN passim Saavedra v. Korean Air Lines, Nos. 84-9324 et seq. (C.D. Cal. July 16, 1993), rev’d in part, 93 F.3d ee AOU SMEs BOD vi nda Ch owed bess side e oi koleke va 3n Singleton v. Wulff, 428 U.S. 106 (1976) ................ 15 Stevens v. Department of Treasury, 500 U.S. 1 (1991) 13 United States v. Atkinson, 297 U.S. 157 CSROED cckiuds 17 United States v. McKie, 73 F.3d 1149 (D.C. Cir. SE eee rau ee beter ee ea te ee se, 1] "wT x PAGE United Transp. Union v. Dole, 797 F.2d 823 (10th Cir I 5 6 0.0600500000u050dnednene bthubdansabdeastetun 15, 16 United States v. Williams, 504 U.S. 36 (1992)......... 18 U.S. Nat'l Bank of Oregon v. Independent Ins. Agents of America, 508 U.S. 439 (1993) ................. 18 Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083 SROE Pina sdccdadadsadpectudsevbentdeabbdcssiahteuse 16 Zicherman v. Korean Air Lines, 116 S. Ct. 629 I aia i a a passim Treaties, Statutes and Rules: Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934), reprinted in note following 49 U.S.C. Dn ncendvaknhdckenuidsdenbabebesassdbhetacses passim Death on the High Seas Act (“DOHSA”), 46 UBL. ABD. § TOE G8 BOB. ca ccresccccecccecess passim Se erie Uh RUE 40h sedaneda¥on¥adeceudeseesesesavebaas 2n DO ss Ee BEEN ach dconchcbstetedicddbcsbebivekcuscoses 2n Se ils OF ME dbs xknbicescnycdabadachshacteucdunbaden 2n OD Babin B BRP ME Do vac ccns ccnscpussctbescscccacvannece l ~~ Petitioner KOREAN AIR LINES Co., LTD. (hereinafter “KAL”), respectfully requests that a writ of certiorari issue to review the judgment and opinion of the United States Court of Appeals for the District of Columbia Circuit entered on May 21, 1996. OPINIONS BELOW The opinion of the Court of Appeals is officially reported at 84 F.3d 446 (D.C. Cir. 1996) and is reproduced in the Appendix to the Petition at A la-9a.' The opinions of the dis- trict court in Jn re Korean Air Lines Disaster of Sept. 1, 1983, MDL No. 565, Nos. 83-3587 et al. (D.D.C. Apr. 8, 1993) and Forman v. Korean Air Lines, No. 83-3587 (D.D.C. June 6, 1995), are not officially reported but are reproduced in the Appendix to the Petition at A §2a-55a and A 10a-32a, respec- tively. JURISDICTION The judgment of the Court of Appeals was entered on May 21, 1996. A la. KAL’s timely petition for rehearing and sug- gestion for rehearing en banc was denied by Order dated July 5, 1996. A 33a-36a. The jurisdiction of the Court is invoked under 28 U.S.C. § 1254(1). STATUTORY AND TREATY PROVISIONS INVOLVED The applicable statute is the Death on the High Seas Act (“DOHSA”), 46 U.S.C. App. § 761 ef seq. The applicable treaty is the Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934), reprinted in note follow- ing 49 U.S.C. § 40105 (“Warsaw Convention”). The pertinent provisions are set forth at A 56a-57a. : References preceded by “A” refer to pages in the Appendix to the Petition. STATEMENT OF THE CASE A. Nature of the Case Decedent Evelyn Forman was a passenger on KAL flight KE007 who was killed when the flight was shot down by Soviet military aircraft on September 1, 1983. The death of the decedent occurred on the high seas within the meaning of DOHSA, during the course of international transportation by air, within the meaning of the Warsaw Convention.’ The respondent is Eric Forman, the husband of the decedent and the Administrator of her estate, who sought damages in his individual capacity and on behalf of decedent’s estate, parents and siblings. B. Disposition Below 1. The Rulings of the District Court The district court denied a pre-trial motion of KAL for a ruling that DOHSA does not permit recovery of any nonpe- cuniary damages for loss of society, survivors’ grief and pre- death pain and suffering of the deceased passengers. Specifically, the district court held that nonpecuniary pre- death pain and suffering damages are recoverable solely on the basis of Article 17 of the Warsaw Convention’ as “damage sustained”, regardless of the proscriptions of DOHSA. /n re Korean Air Lines Disaster of Sept. 1, 1983, Nos. 83-3587 et al., memo. op. at 2 (D.D.C. Apr. 8, 1993) (“In re KAL- DDC I”) (A 52a-5Sa). At the conclusion of a damages only trial, the jury awarded plaintiff/respondent pecuniary and nonpecuniary damages ‘ The jurisdiction of the district court was based on federal ques- tion (28 U.S.C. § 1331), diversity of citizenship (28 U.S.C. § 1332) and original admiralty and maritime jurisdiction (28 U.S.C. § 1333). 3 Article 17 of the Convention creates carrier liability for “damage sustained” in the event of the death of a passenger. 49 Stat. 3018 (A 56a). Mata AE t es Cliabe ED Se tie OP wes 0° te nett age Pitt Doll totaling $1,277,300, which included $290,000 for loss of soci- ety, $195,000 for survivor’s grief and $120,000 for pre-death pain and suffering. In denying KAL’s post-trial motion for judgment as a matter of law, the district court reaffirmed its pre-trial decision permitting recovery of nonpecuniary dam- ages for loss of society and pre-death pain and suffering of the deceased passenger on the basis of the Warsaw Conven- tion. Forman v. Korean Air Lines, No. 83-3578, memo. op. at 5-6, 11-14 (D.D.C. June 6, 1995) (“Forman I”) (A 15a-16a, 19a-21a). The district court, however, set aside the damage awards for survivor’s grief as not recoverable as a matter of law. Jd. at 14-17 (A 21a-24a).* 2. The Appeal and the Intervening Supreme Court Decision in Zicherman vy. Korean Air Lines KAL appealed the pre-trial and post-trial decisions of the district court. On December 29, 1995, KAL filed its opening brief on appeal and argued that nonpecuniary loss of society damages were not recoverable under DOHSA and the award for nonpecuniary pre-death pain and suffering damages was not supported by sufficient evidence. KAL did not argue in its opening brief on appeal the antecedent ques- tion of whether nonpecuniary pre-death pain and suffering damages are recoverable as a matter of law because, unlike loss of society damages, all pre-Zicherman decisions uni- formly allowed the recovery of nonpecuniary pre-death pain and suffering damages on the basis of the Warsaw Conven- tion’, general maritime law and/or state law.® 4 The district court also set aside the damage award for loss of financial contributions, as based on speculative expert testimony. This award was reinstated by the Court of Appeals below. A 6a-8a. See, e.g., Bowden v. Korean Air Lines, 814 F. Supp. 592, 598 (E.D. Mich. 1993), rev'd sub nom. Bickel v. Korean Air Lines, 83 F.3d 127, 132 (6th Cir. 1996), amended on reh’g, __ F.3d _., 1996 WL 490375 (6th Cir. Aug. 29, 1996); Saavedra v. Korean Air Lines, Nos. 84- 9324 et seq. (C.D. Cal. July 16, 1993), rev'd in relevant part, 93 F.3d 547 (9th Cir. 1996); In re Inflight Explosion on TWA Aircraft Approaching (footnote 6 appears on next page) 4 On January 16, 1996, while the appeal was pending in the court below, the Court decided Zicherman v. Korean Air Lines, 116 S. Ct. 629 (1996). The Court in Zicherman first rejected the notion that any type of damages are recoverable directly under Article 17 of the Warsaw Convention as “dam- age sustained.” Zicherman, 116 S. Ct. at 632-636. The Court explained that “damage sustained” in Article 17 refers to “legally cognizable harm” and that courts are to determine what harm is legally cognizable only by reference to the applicable domestic law under the forum’s choice-of-law rules. Jd. In Zicherman, as in this case, the applicable domes- tic law is DOHSA. /d. at 635-36. The Court next rejected the rationale and holding of the Court of Appeals for the Second Circuit (from which the Zicherman case emanated) that general maritime/federal com- mon law is the proper domestic law to consider. Jd. The Court explained that Article 17 of the Convention is merely a “pass- through” provision that does not permit federal courts “to develop some common-law rule—under cover of general admiralty law or otherwise—that will supersede the normal federal disposition” absent the Convention. /d. at 636. Thus, federal courts are authorized only “to apply the law that would govern in absence of the Warsaw Convention.” /d. Since DOHSA applies to deaths on the high seas and permits recovery of pecuniary damages only, the Court ruled that non- Athens, Greece on Apr. 2, 1986, 778 F. Supp. 625, 637 (E.D.N.Y. 1991), rev'd on other grounds, 975 F.2d 35 (2d Cir. 1992), cert. denied, 507 U.S. 1051 (1993); Jn re Air Crash Disaster Near Honolulu, Hawaii, on Feb. 24, 1989, 783 F. Supp. 1261, 1264 (N.D. Cal. 1992) (“Hawaii IT”). & See, e.g., Preston v. Frantz, 11 F.3d 357, 358 (2d Cir. 1993); Graham v. Milky Way Barge, Inc., 824 F.2d 376, 378 (Sth Cir. 1987); Azzopardi v. Ocean Drilling & Exploration Co., 742 F.2d 890, 893 (Sth Cir. 1984); Barbe v. Drummond, 507 F.2d 794, 799 (ist Cir. 1974); Dugas v. Nat'l Aircraft Corp., 438 F.2d 1386, 1389 (3d Cir. 1971); Gray v. Lockheed, 880 F. Supp. 1559, 1569 (N.D. Ga. 1995); Rye v. U.S. Steel Min. Co., Inc., 856 F. Supp. 274, 280 (E.D. Va. 1994); McAleer v. Smith, 791 F. Supp. 923, 927 (D.R.I. 1992). fit Mp Anat Lalli edad el POP Bs Ayes PLE Poe eee ee pecuniary loss of society damages (the only specific damage award involved in the appeal in Zicherman) were unavail- able. Jd. at 636-37; 46 U.S.C. App. § 762 (A 57a). The Court specifically noted that it did not consider “whether § 762 [of DOHSA] contradicts the District Court’s allowance of pain and suffering damages,” as the question was not before the Court. Jd. at 636, n.4. 3. The Post-Zicherman Supplemental Brief in the Court Below On January 26, 1996, KAL moved the court below for per- mission to submit a supplemental brief’ in the pending appeal to address the recoverability of nonpecuniary pre-death pain and suffering damages as a matter of law, in light of Zicher- man. Plaintiff opposed the motion, arguing that KAL had waived the argument by not addressing it in KAL’s opening brief. The court below, apparently rejecting the waiver argu- ment, granted KAL’s motion and expressly directed that KAL address, in its reply brief, the significance of Zicherman on the pending appeal. See Order (D.C. Cir. Feb. 22, 1996) (A 50a-5la). The court below also directed plaintiff to respond to KAL’s arguments in his cross-appeal reply brief. Id. The effect of the Zicherman decision was fully briefed by the parties in their respective reply briefs. 4. The Decision of the Court Below On April 12, 1996, the court below heard oral argument of the appeal and on May 21, 1996, rendered its decision. Plain- tiff conceded, in light of Zicherman, and the court below accepted, that nonpecuniary damages for loss of society and survivor’s grief are not recoverable. A 2a-3a. The court below, however, invoking the general rule that an appellate y In this and all other appeals pending in the court below. See Maikovich v. Korean Air Lines, Nos. 94-5371, 94-5382; Oldham v. Korean Air Lines, Nos. 94-5321, 94-5338. These appeals had been held in abeyance pending the Court’s decision in Zicherman. The court below has now ordered that these cases be rebriefed. 6 court will not entertain an argument raised for the first time in a reply brief (“reply brief waiver rule”), declined to address KAL’s argument that the intervening decision in Zicherman rendered the legal basis for the district court’s decision invalid and that Zicherman precluded, as a matter of law, any award of nonpecuniary damages for pre-death pain and suf- fering. A 4a-Sa. 5. The Post-Zicherman Decisions of Other Courts On April 29, 1996, while the appeal was pending in the court below, but before decision, the Court of Appeals for the Sixth Circuit rendered a decision in five KAL disaster pas- senger cases and held that the intervening Zicherman decision presented an “insuperable obstacle” to the recovery of any nonpecuniary damages under DOHSA, including pre-death pain and suffering damages. Bickel v. Korean Air Lines, 83 F.3d 127, 132 (6th Cir. 1996) (“Bickel I”). On June 4, 1996, the district court below, in four KAL dis- aster passenger cases awaiting trial, revisited its pre-Zicher- man ruling that pre-death pain and suffering damages are recoverable (which the court below has now affirmed)*® and concluded that, in light of Zicherman, such damages are not recoverable. /n re Korean Air Lines Disaster of Sept. 1, 1983, F. Supp. , 1996 WL 428519, at *5 (D.D.C. June 4, 1996) (“In re KAL-DDC IT”) (A 45a-46a). On August 15, 1996, the court below granted plaintiffs’ petition for inter- locutory review of this revised district court decision. /n re Korean Air Lines Disaster of Sept. 1, 1983, No. 96-8013 (D.C. Cir. Aug. 15, 1996). On August 2, 1996, the Court of Appeals for the Ninth Cir- cuit rendered a decision in two KAL disaster passenger cases and held that, in light of Zicherman, nonpecuniary damages for pre-death pain and suffering are not recoverable under DOHSA or otherwise. Saavedra v. Korean Air Lines, 93 F.3d 8 See In re KAL-DDC I, memo. op. at 2 (A 52a-55a). 7 _ 547 (9th Cir. 1996). A petition for rehearing and suggestion for rehearing en banc was denied on September 9, 1996. On August 29, 1996, a majority of the panel of the Sixth Circuit Court of Appeals, which had decided Bickel I, granted plaintiffs’ rehearing petition and, reversing itself, now declined to address the argument that the intervening Zicher- man decision rendered invalid the legal basis for the district court’s? award of nonpecuniary pre-death pain and suffering damages. Bickel v. Korean Air Lines, 83 F.3d 127, 132 (6th Cir. 1996), amended on reh’g, __ F.3d __, 1996 WL 490375 (6th Cir. Aug. 29, 1996) (“Bickel II”). Circuit Judge Batchelder, the author of the unanimous Bickel I opinion, dis- sented. Bickel I], 1996 WL 490375, at *6-8 (Batchelder, J. dissenting). KAL’s suggestion for rehearing en banc of Bickel I] is pending. REASONS FOR GRANTING THE PETITION Since the Court’s decision in Zicherman, the lower courts have reached differing and conflicting results as to the duty to apply the decision, rationale and principle of Zicherman to cases on appeal and awaiting trial and as to the effect of Zicherman on the recoverability of nonpecuniary pre-death pain and suffering damages where DOHSA applies. The court below, after directing KAL and respondent to address the recoverability of nonpecuniary pre-death pain and suffering damages in light of Zicherman in their reply briefs (A 50a), then declined to “decide whether pre-death pain and suffering damages may be recovered after Zicherman”, invok- ing the reply brief waiver rule. A 5a. The court below thus upheld the district court's award of nonpecuniary pre-death pain and suffering damages solely on the basis of Article 17 of the Warsaw Convention. ’ See Bowden, 814 F. Supp. at 598 (allowing recovery of pre- death pain and suffering damages on the basis of Article 17). The Court of Appeals for the Sixth Circuit, in Bickel /, allowed the parties to file post-Zicherman supplemental briefs to address the effect of Zicherman on the recoverability of nonpecuniary pre-death pain and suffering damages. On the basis of the supplemental briefs, a unanimous court in Bickel I held that Zicherman posed an “insuperable obstacle” to the recovery of such damages. Bickel J, 83 F.3d at 132. On rehearing, a majority of the panel (2-1), invoking the reply brief waiver rule, held that it now would decline to decide the issue because Zicherman “neither added to, nor made any changes in, the law regarding the availability of nonpecuniary damages under DOHSA.” Bickel I], 1996 WL 490375, at *2. Thus, the panel upheld the award of nonpecuniary pre-death pain and suffering damages solely on the basis of Article 17 of the Warsaw Convention. /d.; see Bowden, 814 F. Supp. at 598. The Court of Appeals for the Ninth Circuit, in Saavedra, after receiving post-Zicherman supplemental briefs, rejected the waiver argument and held that it was “compelled” to apply the intervening decision of the Court in Zicherman and that Zicherman “effectively forecloses” any claims for non- pecuniary pre-death pain and suffering damages where DOHSA applies. Saavedra, 93 F.3d at 550-554. Subsequent to the decision of the Court of Appeals below, the district court below addressed the effect of Zicherman in several other KAL disaster passenger cases still awaiting trial. The district court repudiated its earlier ruling, which formed the basis of the ruling that the Court of Appeals below has affirmed", and concluded that, in light of Zicherman, non- pecuniary damages for pre-death pain and suffering no longer are available. Jn re KAL-DDC II, 1996 WL 428519, at *5 (A 45a-46a). 10 Forman I, memo. op. at 5-6 (A 15a-16a); In re KAL-DDC I, memo. op. at 2 (A 53a). LAB iss AEX er halo a Z $ 3 # . y Ss 2 i ‘ 9 Certiorari is appropriate to resolve the conflict created by the post-Zicherman decisions in the lower courts and to reaf- firm the principle that an intervening decision of the Court interpreting a treaty and a statute is required to be applied by lower courts in all pending cases, particularly those arising out of the same event as involved in the Zicherman case. Fur- ther, the Court should grant the Petition to clarify the scope of the principles enunciated in Zicherman as to the recover- ability of nonpecuniary damages under the Warsaw Conven- tion and DOHSA in the remaining cases arising out of this disaster. Certiorari at this time will lead to the orderly and timely conclusion of this litigation and will provide much needed guidance to the lower courts as to the exclusivity of the pecuniary damage standard of DOHSA. I THE DECISION OF THE COURT BELOW IS IN CONFLICT WITH THE COURT’S DECISION IN ZICHERMAN, DECISIONS OF THE COURT REQUIRING APPLICATION OF ITS DECISIONS RETROACTIVELY TO PENDING CASES AND THE COURT OF APPEALS FOR THE NINTH CIRCUIT A. The Court Below Has Upheld an Award of Nonpecu- niary Damages Even Though the Legal Basis for the Award, Relied Upon by the District Court, Has Expressly and Directly Been Rejected by the Court in Zicherman The interpretation of the Warsaw Convention by the Court in Zicherman is clear and direct: the Convention acts as “nothing more than a pass-through, authorizing [the courts] to apply the [damage] law that would govern in absence of the Warsaw Convention.” 116 S. Ct. at 636. In rejecting the the- ory that damages are recoverable directly on the basis of the Convention, the Court in Zicherman eliminated the sole legal basis upon which the district court in this case had allowed 10 the recovery of all nonpecuniary damages, including pre- death pain and suffering damages. The decision of the Court of Appeals below, affirming the district court’s allowance of nonpecuniary pre-death pain and suffering damages on the basis of the Warsaw Convention, cannot be squared with Zicherman. When the holding of the district court, affirmed by the Court of Appeals below, is compared with the holding of the Court in Zicherman, the conflict is clear: District Court Ruling: Nonpecuniary pre-death pain and suffering damages are within the meaning of “dam- age sustained” and, there- fore, recoverable directly on the basis of Article 17 of the Warsaw Convention. For- Zicherman Ruling: “Damage sustained” in Arti- cle 17 means “legally cog- nizable harm” as defined by the applicable domestic law. Therefore, no damages are recoverable directly on the basis of Article 17 of the Convention. 116 S. Ct. at 632-35, 637. man I, memo. op. at 5-6 (A 15a-16a); Jn re KAL-DDC I, memo. op. at 2 (A 53a). The court below was required by Zicherman to find a domestic law basis for upholding the award of nonpecuniary pre-death pain and suffering damages, because Zicherman prohibits the award of any damages based solely on the War- saw Convention. Zicherman, 116 S. Ct. at 635-637; Saavedra, 93 F.3d at 553-554. Zicherman obligated the court below to address the question whether nonpecuniary pre-death pain and suffering damages are recoverable under DOHSA, the appli- cable domestic law in this case. See Pescatore v. Pan Am World Airways, ___ F.3d ___, 1996 WL 507165 (2d Cir. Sept. 9, 1996); Saavedra, 93 F.3d at 553-554. In declining to address this question, the court below has erred and has let stand an award of damages based on a legal theory expressly rejected by the Court in Zicherman. 11 B. The Court Below Was Obliged to Apply the Inter- vening Supreme Court Decision in Zicherman to the Pending Appeal The decision of the court below is in direct conflict with the strict rule that an appellate court has a “duty” to apply retroactively intervening decisions of the Court interpreting a statute or treaty to all cases still open to direct review. Rivers v. Roadway Express, 114 S. Ct. 1510, 1519 (1994); Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 96 (1993); James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 540- 545 (1991). The court below had no authority or discretion to decline to apply the decision, direction and principle of Zicherman interpreting the Warsaw Convention and DOHSA to the pending appeal. Once the Court has spoken as to the proper interpretation of a statute or treaty, it is the duty of other courts to respect that understand- ing of the governing rule of law. A judicial construction of a statute [or treaty] is an authoritative statement of what the statute [or treaty] meant before as well as after the decision of the case giving rise to that construction. Rivers, 114 S. Ct. at 1519 (emphasis added). See Harper, 509 U.S. at 96 (“When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regard- less of whether such events predate or postdate the announced rule”); see also Beam, 501 U.S. at 540-545, 549; United States v. McKie, 73 F.3d 1149, 1152-53 (D.C. Cir. 1996). While this case was open on direct review in the court below, the Court in Zicherman rendered a binding judicial construction of the Warsaw Convention and DOHSA. Nev- ertheless, the court below declined to apply the Court’s con- struction to the availability of nonpecuniary pre-death pain and suffering damages in this case. The court sought to justify its decision declining to “decide whether pre-death pain and 12 suffering damages may be recovered after Zicherman” by invoking the “reply brief waiver rule”. A 4a-5a. Invocation of this rule cannot justify the refusal to apply the construction of the Warsaw Coavention and DOHSA rendered by the Court while this case was open on direct review. “When this Court construes a Statute, it is explaining its understanding of what the statute has meant continuously since the date when it became law.” Rivers, 114 S. Ct. at 1521, n.12; Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 256 (1970) (Black, J., dissenting). The court below had no author- ity to disregard the Court’s intervening interpretation of the Warsaw Convention and DOHSA when deciding the case pending on appeal. /d. The Sixth Circuit in Bickel J and the Ninth Circuit in Saavedra properly “determined the effect of the Zicherman decision on the district courts’ award of nonpecuniary damages” in the cases pending on appeal in those courts. Saavedra, 93 F.3d at 550; Bickel I, 83 F.3d at 131-32. While the court in Bickel ] followed the “path laid out” in Zicher- man, the majority in Bickel IJ, on rehearing, has departed from the clear path of Zicherman and has embarked upon the incorrect path charted by the court below. Neither the “reply waiver brief” rule nor any other procedural rule can properly be invoked to thwart the clear direction of the Court in Zicherman as to the meaning and effect of the Warsaw Con- vention and DOHSA. Certiorari is required to ensure conformity with the hold- ing, direction and principle of the intervening decision of the Court in Zicherman. C. The Decision of the Court Below Is in Direct Conflict With a Decision of the Court of Appeals for the Ninth Circuit Certiorari also is required to resolve the direct conflict with the decision of the Ninth Circuit properly applying and giv- ing effect to Zicherman in pending cases arising out of the 13 same event as involved in Zicherman and in this case. In Saavedra v. Korean Air Lines, 93 F.3d 547, 550-554 (9th Cir. 1996), the Court of Appeals for the Ninth Circuit recognized that Zicherman “squarely rejected” the view that damages are available directly under the Convention. The court found that the question whether nonpecuniary pre-death pain and suf- fering damages are recoverable in the KAL disaster passen- ger cases, therefore, must be determined by reference to domestic law (DOHSA). Jd. The Saavedra court concluded, upon the basis of Zicherman, that DOHSA “simply will not brook pain and suffering relief.” Saavedra, 93 F.3d at 553. The error of the court below has now been replicated by the Court of Appeals for the Sixth Circuit which, on rehearing (2- 1), reversed its prior unanimous decision that nonpecuniary pre-death pain and suffering damages are not recoverable in light of Zicherman, declined to address the effect of Zicher- man on the pending appeals and thereby let stand awards of such damages based solely on Article 17 of the Warsaw Con- vention. Bickel I], 1996 WL 490375, at *1-2; see Stevens v. Department of Treasury, 500 U.S. 1, 5-8 (1991) (granting cer- tiorari to address clear misreading of applicable and important federal statute). The plain error of the court below is further compounded by the fact that the district court, whose decision the Court of Appeals below has affirmed, has since concluded, in KAL disaster passenger cases still pending and awaiting trial in the district court, that recovery of nonpecuniary pre-death pain and suffering damages is precluded by Zicherman: [I]t appears to this Court that with Zicherman, the Supreme Court has held that DOHSA provides the exclu- sive remedy for damages which cannot be supplemented with general maritime principles. . In re KAL-DDC II, 1996 WL 428519, at *5 (A 46a). | - ja Certiorari is required to bring the decision of the court below in line with the decision, direction and principle of the Court in Zicherman and to resolve the conflict created with the Ninth Circuit in Saavedra. CONSIDERATIONS OF FAIRNESS AND PUBLIC CONFIDENCE IN THE JUDICIAL REVIEW PROCESS MANDATE REVIEW BY THE COURT Immediately after the Court decided Zicherman, KAL sought permission in the court below, in the Sixth Circuit and in the Ninth Circuit, to file a supplemental brief addressing the effect of Zicherman on the recoverability of nonpecuniary pre-death pain and suffering damages in the cases still open on direct review. Each court granted KAL’s request, over the objections of the plaintiffs based on waiver, and each court directed the parties to address the effect of Zicherman on the recoverability of nonpecuniary pre-death pain and suffering damages in the pending appeals. However, each court came to a different conclusion. The Ninth Circuit addressed and decided the question, the court below declined to decide the question, and the Sixth Circuit first decided the question but then, on rehearing, decided not to decide the question. In view of these conflicting results, in cases all arising from the same event and all purporting to apply the same law, the preservation of the integrity of the judicial process mandates ‘review by the Court of the decision of the court below. A. The Court Below Improperly Applied the “Reply Brief Waiver Rule” The court below initially recognized its duty to address the effect of the intervening decision of Zicherman on the recov- erability of nonpecuniary pre-death pain and suffering dam- on siren OB ltt her Tn A nit Ea cathe APE AE UD pecan et a 15 ages when the court granted KAL’s post-Zicherman request to file a supplemental brief and expressly directed KAL and respondent to address the significance of Zicherman in their respective reply briefs. See Order dated Feb. 22, 1996 (A 50a- 51a). However, the court below then declined to decide the effect of Zicherman by invoking the “reply brief waiver rule” and, as a result, left standing an award of damages on a basis clearly proscribed by the Court in Zicherman. This is mani- festly unjust. “Rules of practice and procedure are devised to promote the ends of justice, not to defeat them.” Hormel v. Helvering, 312 U.S. 552, 557 (1941). Like any general rule of procedure, waiver should not be applied where its underlying justifica- tions are absent. See Singleton v. Wulff, 428 U.S. 106, 114 (1976); Hormel, 312 U.S. at 557-58: Federal Savings & Loan Ins. Corp. v. Haralson, 813 F.2d 370, 377, n.3 (11th Cir. 1987); United Transp. Union v. Dole, 797 F.2d 823, 827-28 (10th Cir. 1986). Application of the “reply brief waiver rule” in this case does not advance or serve any purpose of the rule.'' In no sense could respondent argue, nor did he argue, that he was ambushed or unable to respond to KAL’s arguments. Respon- dent advanced all arguments relevant to the issue before deci- sion. The court below had the benefit of the opposing views of the respondent. The reply briefs did not consist of mere assertions, with no discussion of case law or legislative his- tory supporting the respective views of the parties. See Car- ducci v. Reagan, 714 F.2d 171, 176 (D.C. Cir. 1983). KAL’s reply brief argument alone consisted of a 12 page discussion of the relevant case law and statutes. a The purpose of the “reply brief waiver rule” is to prevent: (1) unfairness to an appellee who is unable to respond to an argument raised for the first time in a reply brief, and (2) an ill-advised opinion on the legal issue raised, because the Court has not had the benefit of an oppos- ing view. Herbert v. Nat'l Academy of Sciences, 974 F.2d 192, 196 (D.C. Cir. 1992). 16 “Orderly rules of procedure do not require sacrifice of the rules of fundamental justice.” Hormel, 312 U.S. at 557. The result of the decision of the court below is to let stand an erroneous decision of the district court, based on a legal anal- ysis rejected by the intervening decision of the Court in Zicherman. Even the district court has since rejected its prior legal analysis, in other pending cases, on the basis of Zicher- man. See In re KAL-DDC I1, 1996 WL 428519, at *5 (A 45a- 46a). “Thus viewed, this is exactly the type of case where application of the general practice would defeat rather than promote the ends of justice. . . .” Hormel, 312 U.S. at 560; Bickel I], 1996 WL 490375, at *6-8 (Batchelder, J. dissent- ing). As Circuit Judge Batchelder stated, in dissenting from the majority decision on rehearing in Bickel II: [T]he majority rests its judgment not even on the shift- ing sands of its understandable desire to do equity in these cases. Rather, the majority constructs this judgment “upstairs above a vacant lot.” Bickel 11, 1996 WL 490375, at *8 (Batchelder, J. dissenting). B. The Refusal of the Court Below to Apply the Inter- vening Decision of the Court in Zicherman Calls for an Exercise of the Court’s Supervisory Power The post-Zicherman argument advanced by KAL involved an important matter of treaty and statutory interpretation, sub- ject to de novo review in the pending appeal. After Zicher- man, the decision of the district court was patently incorrect and based on an improper interpretation of the Warsaw Con- vention and DOHSA. The court below was required to review and correct the district court’s misinterpretation of the Con- vention and DOHSA, in light of Zicherman, as a matter of the proper administration of federal law. See Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1099, n.8 (1991); Dole, 797 F.2d at 828. b) —_— ow —_— ri 7. ~~,