Petition for Writ of Certiorari — Mouradian v. John Hancock Cos.

Supreme Court brief1992

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2HE GNITED STATES SUPREME COURT

‘

RAYMOND R. MOURADIAN, PETITIONER

Vv.

THE JOHN HANCOCK COMPANIES, et al, RESPONDENTS

MOTION BY THE PETITIONER TO PROCEED UPON TYPEWRITTEN PAGES

PURSUANT TO S.ct. RULES 34.1 AND 40.17

RECEIVED |

14 19992

Shem wha hel

Cavid H. Souter, Associate Justice

United States Supreme Court Te Pl: v:

Washington, D.C.20543

Dear Justice Souter:

wa The Petitioner, Raymond R. Mouradian submits this motion

for your review and approval so that I can proceed as a veteran

upon typewritten pages pursuant to S.ct. Rules 34.1 and 40.1

and under the jurisdiction of the Veterans Re-employment Rights

Act, 38 U.S.C. § 2022, The National Labor Relations Act, 29

U.S.C. § 160(b) and The Soldiers and Sailors Civil Relief Act

of 1940, 50 U.S.C. Appx. § 525 (SSCRA).

2. The U.S. District Court and the U.S. Court of Appeals

for the First Circuit has already established my status as a

veteran in the decisions of both courts in Raymond R. Mouradian

v. The John Hancock Companies, et al., 751 F.Supp 272 (MA 1990),

BRU F. 2k % Cie. Soth the District Court and the Court

of Appea.< Gecicec thet the Wational Labor Relations Act, Section

€1Gb)}, atmenced as 29 ©.S.C. § 160(b) and the Soldiers and Sailors

Civil Relief Act, applied to me and that Section 160(b) provision

regarding veterans demonstrate that he was prevented from filing

a timely complaint also applied to me.

3. These two statutes are the. heart of my request for

certiorari and since both the District Court and the Appeals

Court decided that the National Labor Relations Act preempts

any and all statutes related to this case 29 U.S.C. § 160(b)

must preempt 38 U.S.C. § 2022 and qualify me to proceed under

Rules 34 and 40.

4. If the respondents complied with the terms of the

Collective Bargaining Agreement (CBA) and the intent of the

National Labor Relations Act (NLRA) to submit labor disputes

to arbitration, all of the current and previous litigation would

have been unnecessary. The respondents violated the C.B.A.

when they refused to submit my grievance to arbitration fourteen

(14) months after termination. The U.S. Magistrate refused

to extend the six month statute of limitations under N.L.R.A.

even though I was on active duty for fifteen days (15) during

the limitations period and spent two (2) days each month with

my reserve unit in that same six months. The District Court

also refused to extend the limitation period under N.L.R.A.

On appeal to the U.S. Court of Appeals (The First panel) in

their decision of May 26, 1989, the court decided that if SSCRA

applied to me my suit would be timely. Upon remand, the District

Jugoe . “nat née would not extend the limitation

pericc even though IF was entitled to the protection of SSCRA,

{decision Gated? July 30, 1990). Once again, on appeal to the

Court of Appeals (new panel) they agreed with the District Court

to deny me the provisions of SSCRA, (decision dated April 25,

1991). The last decision of the Appeals Court made no mention

of the findings of the first decision made on May 26, 1989.

These three decisions can be found in the rear of the enclosed

Petition for Certiorari.

5. An honest review of the record clearly shows that I was

denied the equal protection of the law and due process guaranteed

by the fourteenth amendment.

6. A careful examination of Supreme Court Rule 40.1 shows

how a law or rule made with good intentions, can as in this

instance be made to recognize the sacrifice and services of

veterans of the Armed Forces, while its real effect is to

discriminate against the vast majority of other veterans in

the same group or category. S.ct. Rule 40 discriminates by

Giving preference to perhaps one percent of those it seeks to

recognize for their service and sacrifices, yet it discriminates

against the other ninety-nine percent whose service and sacrifice

are equally as important in the defense of our Constitution

and violates most sections of the Civil Rights Act of 1964.

Rule 40 should be revised to include all veterans in recognition

of their service to the nation.

7. The petitioner prays that the court will accept the

foreccina in the light that it was made, as a plea for fairness

@mg the €c:.ai and iust aprpiication of the U.S. Constitution,

the legislated iaws of Conuoress and states law and states rights.

Thank you for your taze and consideration in this matter.

Very truly yours,

- Hee en.

Raymond R. Mouradian

Petitioner-Pro Se

Dated: January 9, 1992 =

GF RAYMOND &. MOURADIAN

: We tee lob tharmcock Comnanies, et al,

--. ‘3 1995), 930 F. 320 972 (1st ost I ga ee

merehy swesr arc affirm that the list and dates of service below in the

.5. Navy and the U.S. Naval Reserve are truc and factual with the period of

service indicating service rounded off to the nearest month.

U.S. Navy (active) Enlisted September 1955 - September 1958

U.S. Naval Reserve October 1958 - October 1960

U.S. Naval Air Reserve NAS SO. weymouth, Ma November 1960 - September 1968

U.S. Naval Reserve (Surface) October 1968 - May 1974

U.S. Naval Reserve Construction Battalion Twelve (RNMCB-12) June 1974 - May 1 1989,

Retired, Transfered to the Fleet Reserve subject to Recall.

Total Service - 33 years, 7 Months - 17 days

nd R. Mouradian,

llant-Petitioner

31 Atkinson Drive

Bridgewater, Ma 02224

(508) 697-7528

Pro Se

is Toterl N/A (o the ster « below which ere not applica

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a 116 TYPE OF TRANSFER Om DISCHARGE Db. BTATION OR INSTALLATION AT WHICH EFFECTED

sx | TRANSFERRED TO RESERVES US NAS, QUONSET POINT, RHODE ISLAND

28 © season ano autwonity Expiration of term of active obligated service <a le — Pa

z= | BuPers Inst 1910,12R BPM; Art C-10317 CODE 203 he 10 | SEP_| 58)

c 4 12. LAST DUTY ASSIGNMENT ANDO MAJOR COMMAND 13@ CHARACTER OF BSEBVICE - TYPE OF CERTiFicatTe

? USS INVESTIGATOR (YAGR-9) HONORABLE mews? DD217N

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oe n/a NOT REGISTERED -<-+---<|--

Tt 17. DISTRICT OR AREA COMMAND TO WHICH RESERVIST TRANSFERRED

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10, TERMINAL DATE OF RESERVE 19. CUBREMT ACTIVE SERVICE OTMER THAN BY INDUCTION >. raxm oF e. pate oF BuTAT

OBLIGATION @. SOURCE OF ENTRY strvice

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20. PRIOS REGULAR ENLISTMENTS 21. GRADE, RATE OR RANK AT TimE OF 22. PLACE OF EMTRY INTO CURRENT ACTIVE seRvice (Oty ond Slate)

EMTRY INTO CURRENT ACTIVE SERVICE

NONE Sk BOSTON, MASSACHUSETTS

iia. (Btrest, RFD, a4. STATEMENT OF SERVICE vers wenrne vars

| 27 Hale St, ’ ‘erorrapie | {0_RET SERVICE THIB PERIOD 02 phe 28

Bridgewater, Plymouth, Massachusetts rom asic | ca) Orman stavier 00 00 00

254. SPECIALTY MUMBER AND TiTLE | D. Eg ony OCCUPATION AND Purpases |¢3) TOTAL (Line (1) + line (2) a2 pe | 28

< | b. TOTAL ACTIVE SERVicE 02 ye] 28

= | 0000 | N/A €. FOREIGN AMD/OR SEA SERVICE 02 02 y)

“ Se. paconatvens. MEDALS, BADGES, COMMENDATIONS, CITATIONS AND CAMPAIGN RIBBONS AWARDED OR AUTHORIZED

E | NONE

‘27 WOUNDS RECEIVED AB A RESULT ©F ACTION WITH ENEMY FORCES (Place and date, {/ known)

| 20 SEPVICE SCHOOLS OR COLLEGES, COLLEGE TRAINING COURSES AMD/OR POST-GRADUATE COURSES SUCCESSFULLY COMPLETED 20. OTHER SERVICE TRAINING

annie SCHOOL 4 COURSE | DATES — - To) mason counsns a

| SN, SK3, SK2

SK"A" 5 MAR 56 GTC FOR PO's

25 MAY 56 N/A

7 ) 304. GOVERNMENT LIFE INSURANCE IN FORCE d. AMOUNT OF ALLOTHENT 6. Seats auiereant

i | O ves % no N/A K/K

- 31G VA BENEFITS PREVIOUSLY APPLIED ror (Specify type) re b. va CLAIM NUMBER

co NONE c N/A

| 32 REMARES &,

z RECOMMENDED FOR REENLISTMENT NOT ENTITLED TO MOP

: _ PERMANENT ADOPESS FOR MAILING PURPOSES AFTER TRANSFER OR DISCHARGE | 34. SIGNATURE OF PERSON MEING TRANSFERRED OF D Pe

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PSTIONS PRESENTED

sc 3 -iStrict Court anc the Court of Appeals for the

Forst Circuit ewcee=S their jpusicial discretion and erroneously

LS improperly apply the wrong statute of limitations based on

the guide-lines established in DelCostello v. International Team-

sters Union, 462 U.S. 151, (1983), which adopted the tolling pro-

found under 29 U.S.C. s 160(b) of the National Labor Relations

ACT (NLRA)?

2. Can a Federal Court of Appeals and a U.S. District Court

ignore the clear, concise and mandatory application of the tolling

provisions legislated by the U.S. Congress found in the Soldiers

and Sailors Civil Relief Act, 50 U.S.C. Appx s 525 and apply the

judicially established tolling provisions of 29 U.S.C. s 160(b) of

the NLRA in apparent violation of Article I, Section 1 of the United

States Constitution?

3 Can a Judge(s) or an officer(s) of the Court(s) be hela

legally liable, in their individual capacity and not their official

Capacity, for judgements found to be prejudicial, discriminatory

and rendered with malice under the Civil Rights Act of 1964, 42

The Johx Eentocu Compenies, et ali, Respongents

The John Hancock Mutual Life Insurarce Company, Respondent

The followings officers and employees of The John Hancock Mutual

Life Insurance Company

John McElwee, Respondent

E. James Morton, Respondent

Neal F. Smith, Respondent

Bernard Panos, Respondent

Robert Allison, Respondent

Robert N. Tarlov, Respondent 7

Ronald Pellechia, Respondent

Gerald Hurwitch, Respondent

R. Bruce Oliver, Respondent

The Sentry Insurance Company, Respondent

The Middlesex Insurance Company, Respondent

Frank Ballard, Sentry Insurance Co. CEO, Respondent

The United Food & Commercial Workers International Union,AFL-CIO,

Respondent

William H. Wynn, President United Food & Commercial Workers Inter-

national Union, Respondent

Andre I. Henault, Associate Director, United Food & Commercial

Workers International Union, Respondent

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Cases: Page

Bickford v. United States,

G50 F.20 636, S29 F.26 214 (4th Cir. L975). . cet weevoses 4

Blasejowski v. Stadnicki, 86 N.E. 2d 164 (Mass. 1974)...... 6

Bowles v. Dixie Cab Assn., 111 F.Supp 324, 325.....-.-+eee- 4

DelCostello v. International Teamsters Union,

+ eS Ws Lee) pe errr eae ee er ee ee 3,4

Dervwin v. General Dynamics Corp.,

(D.C. 1982) 551 F.Supp 1198, Affirmed 719 F.26G 484....3,4

Lester v. United States, 487 F.Supp 1033.......cc.ceeevevee 4

Mitsubishi Motor Corp. v. Soler Chrysler-Plymouth Inc.,

fe Sr ae fb * | ae Garon ahaa hat ee eee are ee eee ee 4

Ricard vy. Birch, 529 F.24 214 (4th Cir. 1975).....000000% 4,6

ie: OF THE UNITED STATES

RAYMOND R. MOURADIAN, Petitioner,

THE JOHN HANCOCK COMPANIES, et al, Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FIRST CIRCUIT

The petitioner, Raymond R. Mouradian respectfully prays that

a writ of certiorari issue to review the judgement and opinion of

the United States Court of Appeals for the First Circuit, entered

in the above-entitled proceeding on April 25, 1991.

OPINIONS BELOW

The second opinion of the Court of Appeals for the First Cir-

cuit is reported at 930 F.2d 972 and is reproduced in the appen-

dix hereto, p.la, infra.

The second memorandum decision of the United States District

Court for the District of Massachusetts is reported at 751 F.SUPP

272, and is reproduced in the appendix hereto p. lb, infra.

The first memorandum decision of the United States District

Court for the District of Massachusetts, dated August 30, 1988

was not Originally reported but is now incorporated with the

second memorandum decision supra, and reported with 751] F.SUPP 272.

The First opinion of the Court of Appeals for the First Cir-

Cuit, dated May 30, 1989 and not reported is reproduced in the

appencix hereto, p. Jc, infra.

_i/~ ae Q Court sn } have a mt ¢ :

+%e : » > « o> = —t rrovides ~ sa = — 21s & oD

-— 4 Sas : + 2UuTtTu = sc rer ati ecultadile

‘ - ¢ Pa Ss =~ 4 at “we > sam > Cc S™7mM a } r +

44 ok . Ps 2 a » « Vick CO Comme Ca@adi Disputes. ser

. : ‘ .

Mitsubist Corp. v. Sol -Plymouth Inc 1 Q*

IE ng : 3346

. 5

) t rc? , + / y Ps — a | x * >

The Fir: Ciz } Court of Appeals agreed to hear appeal

and on May 26, 1989 reversed and remandeéc on

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40)

ry’

the Sol

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as 50 U.S Appx ae Pe if found applicable to Petitioner,

arcument 1 mpelliy t Virtually insure appellant's

success Ps 3 Appendix (not published On P.4 Appeals Court

"we note tl t 4t seen Clear that were Plaintiff a member of

regular military unit he woul] be protects by the act'

Oe \ du . [ Lprec state £? r OUP.

323, 32 Powle \ Dixi¢ Ca : lil f Ipp 324 ;

Bickfor Vv. Unite tate On F.4d 6 3€ Ricard v. Birc} :

F.2d 214 it LY 1 Lester v. United States, 487 F.Supy

1033 For the court not t have applied SSCRA would be in viol

tion of the Fourteenth Amendment, section 1, which quarantees

that “nor shall any state deprive any person of life, liberty

Or property without due process o

laa]

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within its jurisdiction the equal protection of the law".

Upon remand back tc

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fe. rf Appeels are biased anc prejudiced against

Perscsaner on Fawer of Responcents On April 25, 199), P.la

APSPencix. infra Court of Appeals reversec their finding of

May 26, 1989, ane affirmed District Court's decision. es 626

Petitioner's view that District Court and Court of Appeals are

individually ilable for violation Of Civil Rights Act of 1964,

42 U.S.C. 1963 by denying Mouradian protection Of the SSCRA.

The U.S. Court of Appeals, The District Court and The U.S.

Magistrate ruleg that the Petitioner Was not materially affected

by reason of his Military service, SSCRA 5s > ee Yet civilians

who have a claim against servicemen, do not have to prove that

they were materially affectegd by the serviceman's Military

service, see Ricard v. Birch. 929 F.2d. 217, Blasejowski v.

stadnicki, 86 N.EF. 2¢ 164 (Mass. 1947 SSCRA s § denies

members of the Miiitary The Equal Protection of the Law anc is

Probably uncor 1tutional

(98)

ra)

a |

fond

04]

y . i ae - ’ , - > A > ms ——

It has been a we] settied precedent tha

—Y

looked to State Laws @S Rules of Decision (Act), 28 U.

1652 to establish the correct statute Of limitations when

Congress did not provide one. There is mo reason why the court's

are "prevented" from returning to Congress any legislation in

which it is unclear what the "intent" of Congress was on a

Specific piece of legislation so as not to "distort" the

balanced interests of states rights under federal law and

Preserve the "interstices" of the interests found in the severa}

States and the federa}) government, between a Strong national

cefense and the desire for “repose” in national labor relations.

« tc -

ed ar

ctr

forth above, the Petitioner, Raymond

+y submits that his claim Should not be

decisions of the vu.s Magistrate, the

tne U.S. Court of Appeals should be

Respectfully Submitted,

Karate KMecina han

Ra Yond Rs wouradian, Pro Se

e¥itioner-Ap llant

a 4

_ a r 4 - ~ \ 5, * —

3 Atkinson Drive

Bridgewater M 02324

508 69 28

$ 205 of the Civ2i Relief Act is superseded and limited for the

porposes of this case by the more specific tolling provision of §

10{b} of the KiRA. The court finds that § 10(b) is intended to

govern where, as here, a collective bargaining agreement is

implicated.

For over 70 years the present § 205 and its predecessors have

protected American servicemen from the running of statutes of

limitations and periods of adverse possession while they were

engaged in the business of defending their country. Section 205

was originally enacted as § 205 of P.L. 1063, 40 Stat. 440 (1918).

This law was essentially reenacted as the Civil Relief Act of 1940,

50 U.S.C. App. § 501, et seq., which was extended indefinitely by

the Universal Military Training and Service Act of 1948, 50 U.S.C.

App. § 464.

The language and history of the Civil Relief Act indicate that

it “must be read with an eye friendly to those-who dropped their

affairs to answer their country's call." LeMaistre v. Leffers, 333

U.S. 1, 6 (1948). As stated in 1940:

In order to provide, strengthen, and expedite the

national defense under the emergent conditions which are

threatening the peace and security of the United States

and to enable the United States the more successfully to

fulfill the requirements of the national defense,

provision is hereby made to suspend enforcement of civil

liabilities, jin certain cases, of persons in the military

service of the United States in order to enable such

persons to devote their entire energy to the defense

needs of the Nation..

50 U.S.C. App. § 501 (emphasis added). Each of the provisions of

the Civil Relief Act are directed. at allowing the serviceman to

concentrate fully and freely on his military duty, without the

atii«

fietract: >f havina te enforce his legal rights within a set

limitatioms period or defend himself in administrative or judicial

proceedings during the time of his active duty.

The NLRA, on the other hand, was originally passed in 1935,

and addressed the strong federal interest in just and efficient

treatment of labor disputes. To this end, § 10(b) of the NLRA

“established a limitations period attuned to what [Congress] viewed

as the proper balance between the national interests in stable

bargaining relationships and finality of private settlements, and

an employee's interest in setting aside what he views as an unjust

settlement under the collective-bargaining system." United Parce}

Mal

Service, Inc. v. Mitchel], 451 U.S. 56, 73 (1981). As part of

this, § 10(b) also directly addressed, in the limited context of

labor disputes, he same concern underlying the policy expresse

earlier and more generally by § 205 -- the possible prejudice to

ting from their active military duty.

servicemen resu

Section 10(b) resolved the competing, compeiling interests ot

a strong national defense and the desire for repose in labor

relations by allowing a serviceman's active duty to toll otherwise

applicable limitations periods, but only if his service preventec

him from filing suit within the set limitations period. It was

just such prejudice that this court and the Court of Appeals found

lacking in the present case.

A statute may, of course, be modified by subsequent

legislation. Although Congress and the President did not expressly

amend § 205 of the Civil Relief Act when § 10(b) of the NLRA was

)

Passau heir amtent te do so is evident. Both § 205 and § 10(b)

speak directly te the same comcerns regarding a serviceman's rights

regaraimg litigation anc they both reflect a special solicitude for

military personnel. Like § 205, § 10(b) recognizes that a special

rule is appropriate to protect individuals whose military service

may affect the conduct of their civilian legal affairs. However,

the NLRA, which was passed after the initial enactment of § 205,

also took into account the important national interest in the

maintenance of peaceful and certain labor relations. In § 10,

Congress and the President struck a particular balance between

their perception of the important, legitimate interests of

servicemen and the also important, legitimate interests of the

collective bargaining system. Thus, rather than the blanket

exemption from limitations periods generally created by § 205, §

10(b) requires a showing of actual prejudice in the context of

labor disputes before allowing such disputes to remain actionable

in a legal proceeding beyond a six month period of time.

It is axiomatic that a more specific statute will take

precedence over a more general one, where they address the same

subject and their operations cannot be reconciled. This principle

has been recognized frequently by the Supreme Court and other

courts. For example, in Morton v. Mancari, the Court wrote, "Where

there is no clear intention otherwise, a specific statute will not

be controlled by a general one, regardless of the priority of

enactment." 417 U.S. 535, 550-51 (1974); see also Busic v. United

States, 446 U.S. 398, 406 (1980) (where overlapping criminal

-8b-

sentencanmc pro .isicrs exist, court will follow “the principle that

a more specific statute will be giwen precedence over a more

general one, regardless of their temporal sequence"); United States

v. Sadler, 649 F.Supp. 1560, 1564 (D.Mass. 1986) (same).

This general rule of construction is particularly appropriate

where, as here, the specific provision was enacted after the

general law. Congress and the President are presumed to legislate

with the knowledge, and in the context, of existing laws. See

Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-85 (1988).

Thus, the intent to amend § 205 to require a showing of actual

prejudice in the context of collective bargainin Claims is

implicit in the enactment of § 10(b). This inference is

particularly appropriate in this case. Section 10(b)‘s conditional

tolling provision would be rendered meaningless if § 205's

automatic tolling of limitations periods remained applicable in the

context of labor disputes. This court does not believe that

Congress and the President intended the terms of § 10(b) to be

without effect.

The fact that § 205 was re-enacted in 1940 does not alter this

conclusion. Rather, the court infers that if Congress and the

President intended to alter the careful balance they struck in §

10(b), they would have done so explicitly. orton, 417 U.S. at

550-51; Busic, 446 U.S. at 406.

While this court recognizes that there is a public policy,

reflected in both § 205 and § 10(b), of being solicitous to

servicemen, this is not the only public policy implicated in this

case. Gerftre.... Steteotes of Jiwitations are "vital to the welfare

of society .... They promote repose by giving security and

stability to moman affairs.” Wood v. Carpenter, 101 U.S. 135, 139

(1979); see also Kay v. Johnson & Johnson, 722 F. Supp. 874, 879

(D.Mass. 1989), aff'd, 902 F.2d 1 (lst Cir. 1990). Section 10(b)

reflects the determination that such stability and security are

particularly important in the context of collective bargaining

agreements. Yet in enacting § 10(b) Congress and the President

remained sensitive to the fact that special protection for

servicemen is necessary and appropriate even when a collective

bargaining agreement is involved. The specific exception for

servicemen included in § 10 reflects the perception of Congress and

the President concerning the proper balance to be struck between

competing, valid aspects of the public interest. This court must

effectuate that decision.

Thus, the court finds that § 10(b) of the NLRA, rather than

§ 205 of the Civil Relief Act, is applicable in this case. Thus,

for the reasons described previously by this court and the Court

of Appeals, plaintiff's present claim is time-barred.

III. QRDER

In view of the foregoing, defendants motion for summary

UNITED §TATES DISTRICT JUDGE

judgment is again hereby ALLOWED.

ee ey ae

SOR rUBLICATIUN | Fag aaa

United States Court of Appeals

For the First Circuit

No. 88-2072

, RAYMOND R. MOURADIAN,

Plaintiff, Appellant,

THE JOHN HANCOCK COMPANIES, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

(Hon. Mark L. Wolf, U.S. District Judge)

Before

Campbell, Chief Judge,

Breyer and Selya, Circuit Judges.

Raymond R. Mouradian on brief pro se.

Charles I. Cohen, Gregory W. Homer, Vedder, Price,

Kaufman, Kammholz & Day, Joseph F. Ryan, and Lyne, Woodworth

5 Evarts on brief for appellees The John Hancock Mutual Life

Insurance Company, et al.

Richard Roesel, Assistant General Counsel, United Food

& Commercial Workers International Union, Warren H. Pyle, and

Angoff, Goldman, Manning, Pyle, Wanger & Hiatt, P.c. on brief

for the Union appellees.

David J. Hart on brief for app

Company, Sentry Insurance Company an

ellees Middlesex Insurance

a Frank Ballard.

Entered: May 26, 1989

SESS S'S~”"~~~— oh

Per Corian. Flaintiff-appellant, appearing pro se,

nes appealed the district conrt’s judgment of dismissal. We

have reviewed plaintiff's filings and briefs with care. We

will not discuseé each of plaintiff's arguments, for we feel

that the district court's opinion, witn which we agree,

adequately explains the deficiencies in plaintiff's lawsuit.

Instead, we limit our discussion to what we view as the central

question.

The principal question is whether plaintiff's action

was barred by the applicable six-month limitations period.

De) Costello v. ams , 462

U.S. 151 (1983) (six-month statute of limitation governs

employee's action against employer and union alleging breach

OF Secie tive maArgcoining agrvemor’: ard breach of danty of fair

representation). Plaintiff's action was filed a few days

outside the six-month limit. Plaintiff says, however, that the

six months should be tolled by the weekends and a two-week

period he spent on what the district court accepted to be

"active duty" in the Naval Reserves. Below, plaintiff's

argument for tolling focused on language in 29 U.S.C. § 160(b)

which extends the six-month limit if "the person aggrieved...

was prevented from filing such charge by reason of service in

the armed forces...." The district court concluded that

plaintiff's intermittent service did not “prevent" him from

~_-

fsling his lawsuit. We agree with the district court's

analysis and do not repeat it here.

Now, on appeal, plaintiff appears to be adding a new

tolling argument, for he cites to the Soldiers' and Sailors’

Civil Relief Act of 1940, 50 U.S.C. App. § 525. This provides,

in pertinent part, as follows:

The period of military service

shall not be included in

computing any period now or

hereafter to be limited by any

law, regulation or order for the

bringing of any action or

proceeding in any court, board,

bureau, commission, department,

Or other agency of government by

Or against any person in military

service... whether such cause of

action or the right or privilege

to institute such action or

proceeding shall have occurred

Rrer fo or curing the period of

such service....

We see no indication that plaintiff ever raised 5.525

below. The general rule is that a litigant may not raise a new

issue for the first time on appeal. See Jaroma v. Massey, No.

88-1629, slip op. at 12 (1st Cir. April 28, 1989) (pro se

plaintiff cannot raise a new matter for the first time on

appeal). Only where a new argument is "'so compelling as

virtually to insure appellant's success'" do we Gepart from

this general rule. Johnston v. n ne, 385 F.2d

890, 894 (lst Cir. 1979) (quoting Dobb v. Baker, 505 F.2d 1041,

1044 (lst Cir. 1974)). Not only, however, did plaintiff fail

to raase ¢ S?° ce.te, there is mothing in his appellate brief

rising to the }eve) of argument om the matter. Appellant, in

RAs) main brief, merely cites to the statute without any

elaboration or explanation. See United States v. McNatt, 842

F.2d 564, 567 (lst Cir. 1988) (one-sentence explanation of the

basis for appeal is insufficient to raise an issue). Not until

his reply brief did he have anything rising to their level of

discussion. See Wells Rea] Estate, Inc v. Greater Lowe]] Board

of Realtors, 850 F.2d 803 (lst Cir.), cert. denied, 57 U.S.L.W.

3347 (1988) (argument waived when raised for the first time in

reply brief). None of the defendants' briefs have responded

to plaintiff's citation to the Soldiers' and Sailors' Civil

Relief Act and, as we have indicated, plaintiff did not develop

the matyrer in his main brief.

The question then is whether, in view of the briefing

deficiencies, we should nevertheless address the applicability

of § 525 to plaintiff's action. We note that it seems clear

that were plaintiff a member of a regular military unit, he

would be protected by the Act. Bickford v. United States, 656

F.2d 636 (Ct. Cl. 1981) (50 U.S.C. App. § 525 tolled running

of statute of limitations during period of service in the

Army); Ricard v. Birch, 529 F.2d 214 (4th Cir. 1975) (period

of limitations tolled during period of defendant's service in

the Marine Corps); Lester v. United States, 487 F.Supp. 1033

(N.D. Tex. 1980) (statute of limitations toiled during perisc

of service in the Navy). Plaintiff, however, was a reservist.

Nevertheless, what little case law we have been able to find

would appear to support tolling during the period plaintiff was

on active duty tven as a reservist, and thus his lawsuit may

well be timely. For example, in Stephan v. United States, 490

F.Supp. 323, 325 (W.D. Mich. 1980), the court stated that

"rtjhe applicability of the (Soldiers' and Sailors' Civil

Relief Act) to reservists in the military is clear" and

concluded that the two years for filing an administrative claim

in a federal tort claims action had been tolled by an eight-

month period plaintiff had spent in the Air Force reserves,

apparently on sick leave due to a serious accident he had

suffered on a military reservation. See also Bowles v. Dixie

Ce~ Ass'n., 12° F.Supp. 224, 32K (f.D.C. 1952) (statute of

limitations tolled by fifteen months defendant spent on active

duty in the Organized Naval Reserves). But see T.Folk, Tolling

of Statutes of Limitations Under Section 205 of the Soldiers'

nd j : iv) j » 102 Mil.L.Rev. 157 (1983)

(arguing that Congress did not intend that limitations periods

be tolled for prolonged periods when military service did not

interfere with the ability to prosecute claims and urging

remedial legislation to change how § 205 has been applied).

The Soldiers' and Sailors' Civil Relief Act is

remedial legislation, enacted for the benefit of persons in

military service "to enable such persons to devote their entire

energy ic the getense meeds of the Nation...." 50 U.S.C. App.

$520. Plairtiff's lawsuit was bot a few days outside the six-

month period, and plaintiff did refer below to his status as

a serviceman on’active duty (albeit, he did not then point to

the right statute). In these circumstances, we do not feel we

can ignore § 525. Rather, we are guided by the procedural

course of Ricard v. Birch, 529 F.2d 214, 216 (4th Cir. 1975).

There, even though § 525 was invoked for the first time on

appeal, the court nevertheless concluded that § 525's clear

terms should not be disregarded and applied the statute.

Accordingly, we think the fairer disposition is to vacate the

judgment below and to remand to the district court for further

consideration of whether plaintiff's action was time-barred.

“s ve Feve not nad the bherefit sf broefing trom d-fwendarte

concerning the applicability of the Soldiers' and Sailors'

Civil Relief Act, we should not be understood as having rade

a definitive ruling that the statute applies. Rather, we leave

the matter for further development below.

Appellees' motion to dismiss the appeal or to strike

nonconforming pleadings is denied.

Vacated and remanded.

HE UNITEL

4 4\/e¥a

YMONT

The 2c : - the Petition of Certiorari if my

Status as 2 vetera is acceptable. Thank you.

Very truly yours

bs yond LMaccakno

Raymond R. Mouradian

RRM/ lpr Petitioner, Pro Se

10n to Proceed on typewritten pages

Certificate of Service

Affidavit of Military Service

py of DD-214 (honorable discharge)

+ >) ; + - ’ cf ,

Of Petition of Certiorari

c t i ¢ nen, Es

T < >F I 2 Y rE

©. r Rya ’ |

Warre f Pyle, E:

. .

k ard Roesel, |!

av1da } ge Peay |

Raymond R. Mouradian

31 Atkinson Drive

Bridgewater, MA 02324

508-697-7528

January 9, 1992

Francis J. Lorson

Chief Deputy Clerk

} , | -

United States Supreine Court f jf { +7

Washington D.C. 20543

Re: Raymond R. Mouradian v. The John Hancock Companies, et al..

Dear Mr. Lorson:

1. In response to our telephone conversation of January

3, 1992 and pursuant to S.ct. Rule 22, I have submitted the

enclosed motion to proceed upon typewritten pages to Justice

Souter for his review and approval.

és Pursuant to S.ct. Rule 12.3 petitioner moves that

the Supreme Court void as out of time any briefs in opposition

to my Petition for Certiorai by the resvondents that was

submitted on July 19, 1991 and received by the court on July

22, 1991. No brief in opposition has been received by the

Petitioner no more than 30 days after submission of my petition

for a Writ of Certiorari as required by Rule 12.3.

I am returning one copy of my Petition for a Writ of

Certiorari for the courts convenience and review if my motion

to proceed upon typewritten pages is allowed. I hope that the

court will accept my petition in its original condition only

because I would be gaining an unfair advantage over the

respondents since they did not chose to cross-petition within

30 days as is required under S.ct. Rule 12.3. I shall return

CATE OF SERVICE

I he:- . ' i tne attached document was mailed

Pestagze pre-;aie co: .tiornews of record listed below on January 10, 1992.

Aitpiceh K Mocerchian:

nd R. Mouradian, Pro Se

2 Atkinson Drive

Bridgewater, MA 02324

(508) 697-7528

Joseph F. Ryan, Esq.

Lyne, Woodworth & Evarts

Federal Reserve Plaza

600 Atlantic Avenue

Boston, MA 02210

Warren H. Pyle, Esq.

Angoff, Goldman, Manning,

Pyle, Wanger & Haitt, P.C.

44 School Street

Boston, MA 02108

Charles i. Cohen, Esq.

Olgetree, Deakins, Nash, Smoak & Stewart

sth Fioor, 2400 N. Street, NW.

Washington, D.C. 2006037

Richard Roesel, Esq.

United Food & Commercial Workers

International Union, AFL-CIO

Livvo.e Street, NM.

Washington, D.C. 20006

David J. Hart, Esq.

Hart and Lamond

Suite 320-324

174 Central Street

Lowell, MA 01852

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.