# Petition for Writ of Certiorari — Capital Airlines, Inc. v. Edwards

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1949
- **Citation:** 338 U.S. 885

## Text

FILE COPY

xo. 37] OCT 61949

IN THE

Supreme Court of the United States
October Term 1949

os

Ricuarp I. Epwarps and Jamss A. Youna, Petitioners
Vv.

CapiTaL AIRLINES, INc., Respondent

Petition for a Writ of Certiorari to the United States Court of Appeals
for the District of Columbia Circuit

ns

x
{ Howarp C. Westwoop
‘Epwin McELwaiIn
Amy RutH MAHIN

Attorneys for petitioners
CovinaTon, Buriine, RuBLEE,
O’Brian & SHORB
Washington, D. C.
Of Counsel

October 6, 1949.

Press or Byron S. ApAMs, WaSHINGTON, D. C.

Page
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Specification of Errors To Be Urged ..................205. 3
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Reasons for the Issuance of the Writ ...................00. 5

The Decision Below Is In Conflict with Fishgold v. Sullivan

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The Decision Below As To Young Is Inconsistent with
Rudisill v. Chesapeake & Ohio Ry. Co., 167 F. 2d 175
(C. C. A. 4th 1948) and McCarthy v. M, & M. Transpor-
tation Company, 160 F. 2d 322 (C. C. A. Ist, 1947)..... 8
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Selective Training and Service Act of 1940 .............. 10
TABLE OF AUTHORITIES.
CasEs :
Fishgold v. Sullivan Corporation, 328 U. S. 275...... 3, 5, 6, 7, 8
en a MPU ED FO, WR, ican tnciccnnsencacers 5,9
Marlin Rockwell Corp. v. N.L.R.B., 133 F. 2d 258 (C.C.A.
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McCarthy v. M. & M. Transportation Company, 160 F. 2d
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National Labor Relations Board v. Waterman, 309 U.S. 206 7
Neid v. Tassie’s Bakery, 219 Minn. 272, 17 N. W. 2d 357
SAS ih cate eE GAEL A SLE an cau ha bent scdhordesesd oo 7
North Whittier Heights Citrus Association v. N.L.R.B., 109
ee RR OO ny enn dcknts0és cok <eeu se 7
Reiber v. Rathbone, 180 Wisc. 287, 193 N. W. 67 (1923).... 7
Rudisili v. Chesapeake & Ohio Ry. Co., 167 F. 2d 175
EP I” Shc bade Gd such usnsdanadcastndosces 8

ii Index Continued.

STATUTES:

Act of September 16, 1940,
amended by the Act of De-
8 (58 Stat. 798) 50 U.S.C. App.,

IN THE

Supreme Court of the Anited States
October Term 1949

NO.

RicHarD I. Epwarps and JaMsEs A. Youna, Petitioners
We

CaPITAL AIRLINES, INc., Respondent

Petition for a Writ of Certiorari to the United States Court of Appeals
for the District of Columbia Circuit

THE PARTIES

This is a cross petition for certiorari filed defensively
in connection with the petition of Capital Airlines,
Inc.,’ in Capital Airlines, Inc., v. Edwards, et al., No.
229, this Term. To avoid confusion, cross petitioners
will be referred to as the ‘‘plaintiffs’’ and the peti-
tioner-respondent as ‘‘Capital’’.

1 Formerly Pennsylvania Central Airlines, Ine. In the record
Capital is sometimes referred to as Pennsylvania Central Airlines
and sometimes as PCA.

2

OPINIONS BELOW

The opinions below have not been reported. The Dis-
trict Court wrote an “‘informal memorandum” opinion
(R. 40-41). The Court of Appeals handed down an
opinion reversing the decision of the District Court
(R. 192-200), and an opinion denying rehearing (R.
208-209).

JURISDICTION

The order denying rehearing was entered on May 10,
1949 (R. 210). On July 18, 1949, the Chief Justice
extended the time to file a petition for certiorari until
September 7, 1949. On August 15, 1949, he again ex-
tended it until October 7, 1949 (R. 213). The jurisdie-
tion of this Court is invoked under 28 U. 8. C. Section
1254(1).

STATUTES INVOLVED

Plaintiff Edwards, because he held a commission in
the Naval Reserve, relies on the Army Reserve and Re-
tired Personnel Law of 1940. Plaintiff Young, be-
cause he was a volunteer, relies upon the service Exten-
sion Act of 1941,* which made applicable to volunteers
the Selective Training and Service Act of 1940* (de-
signed originally to cover only inductees). The rele-

? Joint Resolution of August 27, 1940, c. 689 (54 Stat. 858-860),
as amended by the Act of September 16, 1940, c. 720 (54 Stat. 891),
50 U.S. C. App., § 403. Though Edwards held a Navy commission
he relies upon a statute entitled the Army Reserve and Retired
Personnel Act; that Act specifically covers both the ‘‘land and
naval’’ forces,

* Joint Resolution of August 18, 1941, c. 362 (55 Stat. 626-628),
50 U. S. C. App., § 357.

*Act of September 16, 1940, e. 720 (54 Stat. 885-897) as
amended by the Act of December 8, 1944, c. 548 (58 Stat. 798), 50
U. S. C. App., § 308.

3

vant portions of the Army Reserve and Retired Per-
sonnel Law of 1940 are identical with those of the Selec-
tive Training and Service Act of 1940, and the only
significance of the Service Extension Act of 1941 is to
make applicable to a person in Young’s position the
provisions of the Selective Training and Service Act
of 1940. As in the Courts below, we shall therefore
refer only to the Selective Training and Service Act,
the salient portions of which are set out in the Appen-
dix.
QUESTIONS PRESENTED

1. Whether, contrary to the decision below, this case
is controlled by Fishgold v. Sullivan Corporation, 328
U. S. 275.

2. Whether the plaintiffs, who left for military ser-
vice immediately after they were laid off in reductions
in force, were nevertheless entitled to reemployment
without loss of seniority for time spent in military ser-
vice under either the Selective Training and Service
Act of 1940 or under a collectively bargained contract
between Capital and the Air Line Pilots Association.

3. Whether plaintiff Young, who volunteered for
military service and who thereafter was laid off in a
reduction in force, lost all rights under the Selective
Training and Service Act of 1940 and under the afore-
said contract as a result of such layoff.

SPECIFICATION OF ERRORS TO BE URGED

The Court of Appeals for the District of Columbia
Circuit erred:

1. In refusing to follow the Fishgold case (supra).

2. In deciding that plaintiffs are not entitled to un-
broken seniority from the date of their original em-
ployment under either the Selective Training and Ser-

4

vice Act or the contract between Capital and the Air
Line Pilots Association (R. 29).

3. In holding that plaintiff Young’s rights under the
Selective Training and Service Act were cut off by a
layoff which took place after he had made ‘all arrange-
ments’’ to enter the Army (R. 92-93).

STATEMENT

Plaintiffs are pilots in the employ of Capital, and
this suit involves their seniority as such pilots. Two
periods of time are involved: (1) the period of their
employment with Capital before the war; and (2) the
period of the war when plaintiff Edwards served in
the Navy and plaintiff Young with the Army Air
Force. Plaintiffs claim seniority accrued during both
periods. The Court below found them entitled to
seniority accrued during the first period, before the
war, and Capital’s petition in No. 229 challenges its
decision in this regard. The Court also found that
plaintiffs were not entitled to accrue seniority while
away at war, and the cross petition challenges this as-
pect of its decision.

Plaintiffs are concerned about their seniority be-
cause it determines whether they fly for Capital as cap-
tains (first pilots) or as co-pilots. A captain on an air-
line such as Capital is at the height of his profession,
whereas a co-pilot in matters of both pay and prestige
is little more than an apprentice (R. 8-9). Asa result
of the decision below, both plaintiffs have flown as cap-
tains since August when the Court of Appeals refused
a further stay of its mandate. It is possible, however,
that the seniority won below will prove insufficient to
prevent their demotion to the rank of co-pilot during
the winter months when airline schedules are curtailed.
As a practical matter then, a reversal on the cross peti-

~

5

tion would make them year round captains; a denial of
both petitions would leave them as Spring, Summer and
Fall captains; and a reversal on Capital’s petition (if
not coupled with a reversal on the cross petition) would
reduce them to co-pilots.

With the foregoing contingencies before them, plain-
tiffs decided not to file a petition for certiorari even
though the decision below is squarely in conflict with
Fishgold v. Sullivan Corporation, 328 U. 8. 275. Their
decision was made simply because they have been har-
assed by this case for three years and could ill afford
further litigation. When Capital filed its petition,
however, they were forced to file this cross petition in
order to assurethe Court’s power to consider the entire
ease. Langnes v. Green, 282 U.S. 531. Under the cir-
cumstances, they do not wish a grant of the cross peti-
tion unless the petition is granted.

The facts of the case and its procedural course are
stated in some detail in the brief in opposition to cer-
tiorari in No. 229, and no useful purpose would be
served by repetition here.

REASONS FOR THE ISSUANCE OF THE WRIT
I

THE Decision BeLow Is IN ConFiict WitTH Fishgold v.
Sullivan Corporation, 328 U. 8. 275.

The Court below found as a fact that plaintiffs were
laid off in reductions in force in 1941 and 1942, respec-
tively (R. 199-200, 209). It is conceded that they im-
mediately entered military service, served honorably
throughout the war, and returned to Capital under cir-
cumstances which fulfilled all the conditions of the
Selective Training and Service Act (R. 85, 87, 93).

6

The only question is whether the layoffs severed the
employer-employee relationship to such an extent that
plaintiffs were not in the “employ” of Capital when
they entered military service. This question arises out
of the language of section 8 of the Act which covers
only a:

‘“person who, in order to perform such training
and service, has left or leaves a position in the em-
ploy of any employer. . . .”’ (Italics ours).

Virtually the same question arises under section 21(f)
of a collectively bargained contract between Capital
and the Air Line Pilots Association which in effect
incorporates the Selective Training and Service Act
(R. 29).5

The Court below held that the layoffs severed the
employer-employee relationship and that plaintiffs
therefore were not ‘‘in the employ’’ of Capital when
they entered military service. This decision is plainly
in conflict with the Fishgold case unless the Court’s
distinction of the Fishgold case is valid. The Court
said that Fishgold’s layoff involved a ‘temporary ces-
sation of work’’ whereas plaintiffs’ layoffs were so
‘“‘permanent”’ as to work a complete severance of the
employment (R. 193-195).

The distinction is not valid. The plaintiffs’ layoffs
were “‘permanent’”’ only because plaintiffs immediately
went to war. As soon as they were available, they were

5 Section 21 (f) of the contract, as amended, provides that a
“‘pilot’’? who goes to war shall ‘continue to accrue seniority”’
while in military service (R. 29). The question under this section
is therefore whether plaintiffs were ‘ pilots’? when they entered
military service, and this question in turn depends upon whether
they were then in the employ of Capital.

7

rehired. Moreover, there is nothing whatever in the
language of the Act which so much as suggests the
Court’s distinction, and as the Fishgold case holds (328
U.S. at p. 287) the Act was a carefully drafted piece
of legislation which would have expressed such a dis-
tinction if one had been intended.* Furthermore, the
decision below is an extremely narrow one which runs
contrary to the admonition of the Fishgold case that
the Act should be construed liberally in favor of those
who went to war."

It follows that the conflict with the Fishgold case is
a square one.

* The Court said in the Fishgold case that ‘‘* * * when Congress
desired to cover the contingency of a layoff, it used apt words to
describe it.’" 328 U.S. at p. 287. The Act covers any person
“‘who, in order to perform such [military] service !xaves a posi-
tion, other than a temporary position, in the employ of any em-
ployer * * *.”’ (italics ours) This language actually does ‘‘cover
the contingency of a layoff’’; for‘‘in common parlance and indus-
trial parlance’’ (328 U. S. at p. 286), a laid-off employee remains
in the employ of his employer. 'National Labor Relations Board
v. Waterman, 309 U. S. 206; North Whittier Heights Citrus Asso-
ciation *. N. L. R. B., 109 F. 2d 76, 82 (C. C. A. 9th, 1940) ; Mar-
lin Rockwell Corp. v. N. L. R. B., 133 F. 2d 258 (C.C. A. 2d, 1943) ;
Reiber v. Rathbone, 180 Wisc. 287, 193 N. W. 67 (1923) ; Neid v.
Tassie’s Bakery, 219 Minn. 272, 17 N. W. 2d 357 (1945).

‘For example, the lower Court’s construction would exclude
from the benefits of the Act all persons inducted into service fol-
lowing common work stoppages caused by the war. Thus an em-
ployee inducted the day before such a work stoppage would be
entitled to reemployment after the war. An employee inducted
the day after, however, would have received a ‘‘permanent’’ or
““eomplete’’ layoff, and according to the Court below he therefore
would not be entitled to reemployment. The first employee having
been hit only by the draft is covered by the Act but the second
having been hit both by a war-induced work stoppage and by the
draft is not. Congress obviously could not have intended any such
distinction between the two employees.

8

II

THE Decision BeLow as To Youna Is INCONSISTENT
Wirt Rudisill v. Chesapeake & Ohio Ry. Co., 167
F. 2p 175 (C. C. A. 47H 1948) ann M cCarthy v. M.
& M. Transportation Company, 160 F. 2p 322
(C. C A. 1st, 1947).

It is undisputed that in the case of plaintiff Young
‘‘all arrangements had been made where I [he] could go
into the Ferry Command”? of the Army Air Force well
before he received his notice of layoff (R. 91-93). It is
also undisputed that after making such arrangements,
Young told his immediate superior in Capital of his
intention to enter the Army Air Force and requested
his release for that purpose (R. 93). In the Rudisill
case (supra), it was held that one who was immune
from the draft (like Young, R. 125) and who neverthe-
less volunteers is entitled to the benefits of the Selec-
tive Training and Service Act. In the M cCarthy case
(supra) it was said that when a man is on his way into
military service, an employer cannot cut off his rights
under the Act by a discharge. It follows a fortiori
from the Rudisill and McCarthy cases that once Young
volunteered, his rights unde the statute could not be
cut off by a layoff, and the decision below that his rights
were so cut off is in conflict with those two decisions.

CONCLUSION

‘As previously stated, plaintiffs do not wish an inde-
pendent grant of the cross petition. If, however, the
petition in No. 229 were to be granted, the cross petition
should likewise be granted. A reversal of the decision
below on the authority of the Fishgold case would pro-
vide a complete answer to all the contentions advanced
by Capital in No. 229, and, although there are many

a ——————

9

other answers to those contentions, the Court should
make certain that it has the power to give that answer.
Langnes Vv. Green, 282 U.S. 531. Moreover, the veter-
ans’ status of the plaintiffs as of the time of their post-
war return to Capital has been inextricably involved
in this dispute from the outset, and it would be most
unjust and distorting to attempt review of this case
with that status excluded from consideration.
WHEREFORE, it is respectfully submitted that this
petition for a writ of certiorari to the United States
Court of Appeals for the District of Columbia Circuit
be granted, but only if the petition in No. 229 is granted.

Howarp C. Wrstwoop

Epwin McELwain

Amy RutH MAHIN
Attorneys for petitioners

CovineTon, BuRLING, RUBLEE,
O’Brian & SHORB
Washington, D. C.
Of Counsel

October 6, 1949.

10

APPENDIX
Selective Training and Service Act of 1940

(Act of September 16, 1940, c. 720 (54 Stat. 885-897),
as amended by the Act of December 8, 1944, c. 548
(58 Stat. 798), 50 U.S. C. App., § 308).

Section 8.

(a) Any person inducted into the land or naval
forces under this Act for training and service, who, in
the judgment of those in authority over him, satisfac-
torily completes his period of training and service un-
der section 3 (b) shall be entitled to a certificate to that
effect upon the completion of such period of training
and service, which shall include a record of any special
proficiency or merit attained. . ..

(b) In the case of any such person who, in order to
perform such training and service, has left or leaves a
position, other than a temporary position, in the employ
of any employer and who (1) receives such certificate,
(2) is still qualified to perform the duties of such posi-
tion, and (3) makes application for re-employment
within ninety days after he is relieved from such train-
ing and service or from hospitalization continuing after
discharge for a period of not more than one year—

* * * * *

(B) if such position was in the employ of a private
employer, such employer shall restore such person to
such position or to a position of like seniority, status,
and pay unless the employer’s circumstances have so
changed as to make it impossible or unreasonable to

do so; : F :
* *

(c) Any person who is restored to a position in ac-
cordance with the provisions of paragraph (A) or (B)
of subsection (b) shall be considered as having been

11

on furlough or leave of absence during his period of
training and service in the land or naval forces, shall
be so restored without loss of seniority, shall be entitled
to participate in insurance or other benefits offered by
the employer pursuant to established rules and prac-
tices relating to employees on furlough or leave of ab-
sence in effect with the employer at the time such per-
son was inducted into such forces, and shall not be
discharged from such position without cause within one
year after such restoration.

* * * * *

(e) In case any private employer fails or refuses to
comply with the provisions of subsection (b) or sub-
section (¢), the district court of the United States for
the district in which such private employer maintains a
place of business shall have power, upon the filing of
a motion, petition, or other appropriate pleading by
the person entitled to the benefits of such provisions, to
specifically require such employer to comply with such
provisions, and, as an incident thereto, to compensate
such person for any loss of wages or benefits suffered
by reason of such employer’s unlawful action. The
court shall order a speedy hearing in any such case and
shall advance it on the calendar. . . .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_2409%3A3. Public record. Not legal advice.