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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 503 U.S. 951

## Text

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FILMING, IF AND WHEN A
BETTER COPY CAN BE OBTAINED, A NEW FICHE
WILL BE ISSUED,

2HE GNITED STATES SUPREME COURT

ae
‘

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. NAV USN BRIDGEaaTER, MASSACHUSETTS Ae ee cl oe
? ‘. we sux ¢ Comoe nat 2 ome oe * enon I. waveur @. us. CITIZEN ®. MARITAL BTaTUS
= | CADDSSlay BAS BOWE | ORAZEL «| 70 {155 jg On | SINGLE
| One weeRST Cok ee EEecA ew Lew ¢ meee COBMEE OF Mi a
| “Hee sehooh —t— = GERERAL
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 . raxm oF e. pate oF BuTAT
OBLIGATION @. SOURCE OF ENTRY strvice
oar BOnTH Year BH encisteo (First Enlistment) DO amusteo (Prior Services) OC auamtistan (Zeere) oav wonTN veae
12 SEP 61 Dormer: MINORITY 13 SEP 55 y,
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
PDANTT
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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.

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

and on May 26, 1989 reversed and remandeéc on

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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'

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1033 For the court not t have applied SSCRA would be in viol
tion of the Fourteenth Amendment, section 1, which quarantees
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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
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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.

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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

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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

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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

Ne

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,
v.
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

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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
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Warre f Pyle, E:
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0054%3A1. Public record. Not legal advice.