Watson v. Fort Worth Bank and Trust Brief Amicus Curiae in Support of the Petitioner

    IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1973

- - - - - - - - - - - - - -  - -x
WILLIE JOHNSON, JR., :

Petitioner
v.

RAILWAY EXPRESS AGENCY, INC., 
BROTHERHOOD OF RAILWAY CLERKS 
TRI-STATE LOCAL AND BROTHERHOOD 
OF RAILWAY CLERKS LILY OF THE 
VALLEY LOCAL,

Docket No. 
73-15^3

Respondents : _ _ _ _ _ _  _x

ON PETITION FOR A WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS FOR 

THE SIXTH CIRCUIT
BRIEF OF RESPONDENT REA EXPRESS, 
INC. IN OPPOSITION TO CERTIORARI

Peter G. Wolfe 
Attorney for 
REA Express, Inc. 
219 E. 42 Street 
New York, N. Y.

10017

May 15, 1974



(i)

PAGE
Preliminary Statement 1

Questions Presented 2
Statutory Provisions Involved 3
Statement of the Case 5
I THERE IS NO REAL CONFLICT WITH 6 

OTHER COURT OF APPEALS DECI­
SIONS ON ANY IMPORTANT MATTERS

II OTHER ISSUES RAISED BY PETI- 10
TIONERS DO NOT WARRANT EXERCISEOF THIS COURT'S SUPERVISORY AUTHORITY
A - The Interpretation of Tenn. 10Code §28-304 -------
B. Exhaustion of Administra- 12tive Remedies Under the Railway Labor Act
C• Statute of Limitations 15
D. Res Judicata 20

TABLE OF CONTENTS

CONCLUSION 22



CASES

(ii)
TABLE OF AUTHORITIES

PAGE
Ackermann v. United States, 340 19U.S. 173(19501
Andrews v. Louisville & Nash- 12,15vllle R. Co.. 400 U.S. 320(1972)
Boudreaux v. Baton Rouge Marine 7Contracting Company, 437 F. 2d 1011(5th Cir. 1971)
Build of Buffalo, Inc. v. Sedita, 22M l  F. 2d' 28̂ 4 (2d Cir. 197TJ
Gates v. Georgia-Pacific Corp., 16
7 CCH EPD“Tyi85 (9th Cir. 197!*)
Glenmore v. Ahern, 276 F. 2d 525 21
(2d Cir. 1959), cert den., Tri- 
Continental Financial Corp. v.
Glenmore, 3S"2 U.S. 964 (I960)
Glover v. St. Louis & San 
Francisco R. Co.. 393 U.S. 324 
T1969)
Huddleston v. Dwyer, 322 U.S.
232"Tl9M) —
Klaprott v. United States,
335 u . s .  6oiTTpir)~

Macklin v. Spector Freight 
Systems, Inc., 476 F. 2d 
979 (D.C. Cir. 1973)
Steele v. Louisville & Nash­
ville Railroad Company, 323 U.S. 192(1944)

12.13.14 

11

18,20

6.7.9.14

12.13.14



(iii)
TABLE OP AUTHORITIES

STATUTES PAGE
Civil Rights Act of 1866, 
42 U.S.C. §1981 6,7,8,9,12

13,14,15
Title VII, Civil Rights Act 
of 1964, 42 U.S.C. §§2000e et seq.

2,7,8,9,14

Judicial Code, 28 U.S.C. 
51292(a)(1)

rHCVJ*\0
0

Railway Labor Act, 45 U.S.C. 
§151 et seq. 4,12,13,14

15
Tennessee Code, §28-304 1 0

Federal Rules of Civil Procedure Rule 54(b) 2 1

Rule 60(b) 3,15,18,19



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1973

- - - - - - - - - - - - - - -  - -x
WILLIE JOHNSON, JR., :

Petitioner :
v. : Docket No.

: 73-1543RAILWAY EXPRESS AGENCY, INC., :
BROTHERHOOD OF RAILWAY CLERKS :
TRI-STATE LOCAL AND BROTHERHOOD :OF RAILWAY CLERKS LILY OF THE :
VALLEY LOCAL, :

Respondents :
- - - - - - - - - - - - - - - -  -x

ON PETITION FOR A WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS FOR 

THE SIXTH CIRCUIT

BRIEF OF RESPONDENT REA EXPRESS,
INC. IN OPPOSITION TO CERTIORARI

Preliminary Statement 
The opinions of the Court below are set 

forth in Petitioner's Appendix. References 
to such Appendix are cited with the suffix 
"a." Petitioner is referred to. herein as



2

"Johnson" and Respondent REA Express, Inc. 
as "REA."

Questions Presented 
REA will rely on Johnson's Questions 

Presented except for Questions 2b and 2c, 
for which it substitutes the following 
Questions:

2. Whether a person who claims that 
he has been discriminated against in em­
ployment on account of his race should 
be denied a hearing on the merits on any 
of the following grounds:

(b) As to his cause of action under 
Title VII, a suit dismissed without 
prejudice for failure to obtain counsel 
must be refiled within 30 days of the 
order of dismissal and the order need 
not be reopened, in the discretion of



the District Judge, under Rule 60(b), F.
R. Civ. P.; and

(c) As to his causes of action under 
either statute, an order granting motions 
for summary judgment in an action seeking 
injunctive relief which was subsequently 
dismissed without prejudice for failure 
to obtain counsel has res judicata ef­
fect .

- 3 -

Statutory Provisions Involved 
In addition to the statutes cited, the 

following statutes are also involved in 
this case:

1. United States Code, Title 28, 
Section 1292(a)(1)provides:

"The courts of appeals shall 
have jurisdiction of appeals 
from: (1) Interlocutory 
orders of the district courts of the United States, the 
United States District court 
for the District of the



Canal Zone, the District 
Court of Guam, and the 
District Court of the 
Virgin Islands, or of the 
judges thereof, granting, 
continuing, modifying, 
refusing or dissolving 
injunctions, or refusing to 
dissolve or modify injuc- 
tions, except where direct 
review may be had in the 
Supreme Court;..."

2. United States Code, Title 45, 
Section 153s First (i) provides:

"The disputes between an 
employee or group of employee 
and a carrier or carriers 
growing out of grievances or 
out of the interpretation or 
application of agreements 
concerning rates of pay, 
rules, or working conditions, 
including cases pending and 
unadjusted on June 21, 1934, 
shall be handled in the 
usual manner up to and in­
cluding the chief operating 
officer of the carrier desig­
nated to handle such disputes 
but, failing to reach an 
adjustment in this manner, 
the disputes may be referred 
by petition of the parties 
or by either party to the



5

appropriate division of the 
Adjustment Board with a full 
statement of the facts and 
all supporting data bearing 
upon the disputes."

Statement of the Case
REA intends to rely on Johnson's state­

ment of the Case. However, REA wishes to 
clarify two areas of disagreement it has 
with Petitioner's Statement of the Case."

(1) There is no support in the record 
below for Petitioner's description of 
his attempts to contact counsel (Peti­
tion, pp. 8-9) .

(2) In the February, 1972 letter from 
Mr. Caldwell to Judge Brown, Mr. Caldwell 
specifically stated he did not represent 
Mr. Johnson. Therefore, his letter 
could not have constituted a request for 
an extension of time made on Mr. Johnson's



6

behalf.

I
THERE IS NO REAL CONFLICT WITH OTHER
COURT OF APPEALS DECISIONS ON ANY 

IMPORTANT MATTERS

The Petition for Certiorari states that 
the Court of Appeals' rejection of the 
view that the period of limitation ap­
plicable to an action brought under 42 
U.S.C. §1981 is tolled by the filing of 
a complaint with the Equal Employment 
Opportunity Commission results in an im­
portant conflict between the circuits.
On the contrary, there is only a minor 
conflict of dicta which is neither im­
portant to this case, which can be 
decided on an independent ground, nor to 
other cases.

In both Macklin v. Spector Freight



7

Systems, Inc., 478 F. 2d 979 (D.C. Cir. 
1973) and Boudreaux v. Baton Rouge Marine 
Contracting Company, 437 F. 2d 1011 (5th 
Clr. 1971)s the respective Courts of 
Appeals took the position that filing of 
an E.E.O.C. complaint did toll the statute 
of limitations under Section 1981. How­
ever, the statements were In footnotes to 
the decision to "give guidance to the 
District Court" (Macklin, supra, at 944) 
or "for the guidance of the court on 
remand" (Boudreaux, supra, at 1017). 
Moreover, In Macklin a holding of the 
Court is inconsistent with the view ex­
pressed in the footnote dictum. Thus, 
the Court held that exhaustion of ad­
ministrative remedy under Title VII of 
the 1964 Civil Rights Act (42 U.S.C. 
§2000e-5c) is not required before a suit 
under Section 1981 may be brought, among



- 8 -

other reasons, because
"...Section 1981 and Title 
VII, in truth, provide for 
such radically different 
schemes of enforcement and 
differ so widely in their 
substantive scopes that using 
the policies behind the latter 
to create procedural barriers to actions under the former 
would stretch to the breaking 
point courts' customary duty 
to accommodate allegedly con­
flicting legislation." 478 
F. 2d at 996.

Moreover, the Court noted that among the 
wide differences were differences in 
statutes of limitations. If the schemes 
of the two statutes are so different 
that the difference in statutes of limita­
tions did not require that one scheme be 
exhausted before another could be com­
menced, it seems unlikely that it would 
require tolling of one statute of 
limitations if the other was invoked.
But until the D.C. Circuit carefully



considers the question in a case in which 
it is squarely posed, this Court cannot 
assume that it will follow the view ex­
pressed in the footnote. The Macklin 
Case was not such a case.

In any event, the inconsistency in 
dicta does not involve an important issue. 
In this case, the District Court dis­
missed the Section 1981 complaint also on 
the ground that plaintiff had failed to 
exhaust his administrative remedies.
There is therefore an independent ground 
sustaining the decisions below, and the 
alleged conflict as circuits is therefore 
not important to this case. As for other 
cases, Title VII will always be available 
to any Plaintiff who files a complaint 
with the E.E.O.C. and could therefore 
take advantage of the tolling rule

- 9 -



10

Petitioner seeks to invoke. Hence, the 
effect of this rule will be negligible on 
most plaintiffs, except for the calcula­
tion of the amounts of damage. Such 
disputes over damages should not be the 
basis of undue allocation of this Court's 
time .

II
OTHER ISSUES RAISED BY PETITIONER DO
NOT WARRANT EXERCISE OF THIS COURT'S 

SUPERVISORY AUTHORITY

A. The Interpretation of Tenn.Code
§28-304

Johnson claims that Tenn. Code §28-304 
which provides a one-year limitation 
period on "civil actions for compensatory 
or punitive damages, or both, brought 
under the federal civil rights statutes" 
is inapplicable to the complaint under 
Section 1981, or if applicable, violative 
of the U.S. Constitution.



11

Petitioner requests this Court to in­
terpret a provision of state law upon 
which state courts have not interpreted. 
This Court has said:

"The decision of the highest 
court of a state on matters of 
state law are in general con­
clusive upon us, and ordinarily 
we accept and therefore do not 
review, save in exceptional 
cases, the considered determina­
tion of questions of state law 
by the intermediate federal 
appellate courts...."Huddleston 
v. Dwyer, 322 U.S. 232,237 (1944).

There is no reason to vary this policy in 
this case.

Only upon interpretation of the statute 
by state courts can the constitutional 
questions raised by Petitioner be reached. 
In any event, the interpretation given to 
the statute by the Courts below raises no 
such questions. As the Court of Appeals 
noted, the statute applies to a wide



12

variety of personal tort actions and 
claims of malpractice. Placing civil 
rights violations in such category along 
with similar violations of law does not 
violate equal protection of the laws.

B. Exhaustion of Administrative 
Remedies Under the Railway 

Labor Act
Johnson claims that the district court 

erred in deciding that his claim under 
Section 1981 should be dismissed because 
of failure to exhaust administrative 
remedies under the Railway Labor Act. 
Petitioner cites Glover v. St. Louis &
San Francisco R. Co., 393 U.S. 324 (1969) 
and Steele v . Louisville & Nashville 
Railroad Company, 323 U.S. 192 (1944).

In Andrews v. Louisville & Nashville R. 
Co., 406 U.S. 320 (1972), this Court held 
that a Plaintiff such as Mr. Johnson,



13 -

who complains of wrongful discharge, must 
utilize his Railway Labor Act remedies. 
Such remedies are set forth in Section 
153, First (i) of the Railway Labor Act 
(45 U.S.C. §153 3 First (i)) . Glover and 
Steele are not to the contrary. They in­
volved cases of violation by a labor 
union of a duty of fair representation 
arising under the Railway Labor Act. In 
such cases, this Court has held it would 
be futile to exhaust administrative 
remedies. The standards, however, for 
liability under the Railway Labor Act are 
different than the standards under Section 
1981. For one thing, under the Glover and 
Steele cases, the union is a necessary 
party who is alleged to have discriminated 
against its members. In such cases,
arbitration of a Board chosen by the



14

union and company defendants might well 
be futile. But under Section 1981, where 
the union is not a necessary party and the 
plaintiff may succeed on the merits against 
his employer even if the union actively 
represents him, administrative remedies may 
not be futile, and the reasoning of Steele 
and Glover does not apply.

Johnson also contends that there exists 
a conflict in circuits. However, none of 
the cases cited except Macklin have any­
thing to do with the requirement of ex­
hausting employment arbitration remedies 
and Macklin only deals with that require­
ment in relation to the 1964 Civil Rights 
Act, not Section 1981. The fact that 
exhaustion of remedies under the Railway 
Labor Act may not be required for a 
complaint processed under the 1964 Civil 
Rights Act which (1) postdates the Rail­
way Labor Act and (2) has extensive



15

administrative procedures of its own does 
not lead to the conclusion it is not 
required under Section 1981 which (1) pre­
dates the Railway Labor Act and (2) has 
no administrative procedures. This Court 
has ruled in Andrews that Railway Labor 
Act procedures must be exhausted, and 
Johnson has raised no issues which require 
modification of this ruling in this case.

C. Statute of Limitations
Johnson attacks the Courts below for 

failing to allow him more time to obtain 
counsel, and for failing to reopen the 
first action under Rule 60(b) of the 
Federal Rules of Civil Procedure.

What Johnson is asking would require 
this Court to delve into (1) questions of 
fact as to the notice Johnson received 
and on what date he was represented by 
counsel and (2) questions of whether the 
district judge abused his discretion in



16

falling to grant a motion that was never 
before him.

Johnson claims first that he did not 
have clear notice of the time limitation 
on the right to sue and therefore the 
30 day time period should be deferred 
until he receives such notice (Petition, 
p. 20). According to Petitioner's State­
ment of Facts, he made numerous attempts 
to contact attorneys, and finally con­
tacted a knowledgeable attorney by the end 
of the 30 day period. It certainly is a 
question of fact, for the District Court, 
to determine whether plaintiff had ade­
quate notice. Certainly, Gates v. 
Georgia-Pacific Corp., 7 CCH EPD 
§9185 (9th Cir. 197*0 does hold, as 
Petitioner claims, that where "the 
plaintiff has not had a clear notice of 
the time limitation on his right to



17

sue and has acted with all of the dili­
gence and promptness which could be 
expected, it has been held that the limi­
tations period does not start running 
until the plaintiff receives explicit 
notice." (Petition, p. 20). Instead, in 
that case, where the EEOC failed to mail 
the statutorily required notice to sue 
letter, the Court said:

"We are convinced that, as a 
result of the Commission's 
error, appellee was confused, 
and, under the circumstances, 
acted with all of the diligence 
and promptness which could be 
expected. We restrict our 
holding to the facts of this 
case, and we express no opinion 
on the form of notice which 
might trigger the 30 day period 
under other circumstances."
(7 CCH EPD H9185 at 6944)

Whether Petioner was confused is a ques­
tion of fact this Court should not be 
called on to resolve.

Petitioner also claims that the Court 
should have treated Mr. Caldwell's 
letter of February 17 as the equivalent



18
of a motion for appointment of counsel. 
Once again this Court Is called upon to 
make a finding of fact contrary to the 
finding of the Court of Appeals. For if 
the February 17 letter was "not an an­
nouncement that Caldwell was his counsel,11 
(15a) as the Court of Appeals found, it 
would have been a violation of Johnson's 
rights to treat the letter as a motion by 
him —  only Johnson, not Mr. Caldwell, 
could request appointment of counsel.

Finally, Johnson claims that the dis­
trict Court erred in failing to reopen 
the proceeding under Rule 60(b) of the 
Federal Rules of Civil Procedure.

In Klaprott v. United States. 335 U.S.
601 (19^9), this Court reversed and 
remanded, . for the only time, a failure of 
a U.S. District Court to set aside a 
prior judgment under Rule 60(b). The 
Court applied new provisions of amended 
Rule 60(b) which had been amended sub­
sequent to the decisions of the Courts



19

below, which therefore did not have an 
opportunity to exercise their discretion 
as to the applicability of the amended 
rule. Moreover, the lower court has 
ordered denaturalization of a U. S. 
citizen, which this Court described as 
"more grave than consequences that flow 
from conviction for crimes .... without 
evidence, a hearing, or the benefit of 
counsel, at a time when his Government 
was then holding the citizen in jail 
with no reasonable opportunity to defend 
his citizenship." 335 u.S. at 611, 615.

Short of such clearly extraordinary 
circumstances, this Court should not 
interfere with a district court's dis­
cretion in failing to reopen a proceeding 
under Rule 60(b), especially on its own 
motion. See Ackermann v. United States.



20

3^0 U.S. 173 (1950) for a refusal to 
reverse a failure to reopen a judgment 
where circumstances were less extra­
ordinary than In Klaprott. Here, unlike 
Klaprott, the District Court had an 
opportunity to exercise its discretion 
on whether to invoke the Rule, it did 
have before it a motion challenging its 
procedure, the action was a civil pro­
ceeding without such serious adverse 
consequences to Johnson, Johnson had 
been free to act on his own behalf, or 
request the appointment of counsel, and 
Johnson had presumably had the advice 
of counsel for over three months, and 
for one month prior to time allowed to 
file a new complaint. In such circum­
stances, this Court should stay its hand.

D . Res Judicata
Petitioner finally claims that the



21

decision of Judge Brown granting summary 
judgment was not res judicata because it 
did not dispose of all claims against all 
defendants and was therefore not a final 
order under Rule 5Mb) of the Federal 
Rules of Civil Frocedure.

This claim ought not to be considered 
by this Court. The matters discussed 
heretofore constitute independent grounds 
which would dispose of the case, regard­
less of the disposition of the res judi­
cata point. In any event, it is clear 
that an order for summary judgment as to 
some claims and parties is an order refus 
ing an injunction and is therefore a 
final order under Section 1292(a)(1) of 
the Judicial Code (28 U.S.C. §1292(a)(l)) 
Glenmore v. Ahern, 276 F. 2d 525 (2d Cir.
1959) 5 cert. den. , Tri-Continental



22

Financial Corp. v. Glenmore, 362 U.S. 964 
(I960); Build of Buffalo, Inc, v. Sedita, 
441 F. 2d 284(2d Cir. 1971).

CONCLUSION
Certiorari should be denied and the 

petiton dismissed.

Respectfully submitted,

Peter G. Wolfe Attorney for Respondent 
REA Express, Inc.
219 East 42nd Street 
New York, New York 10017

CERTIFICATE OF SERVICE 
I hereby certify that I have this day 

caused to be served the above Brief upon 
Deborah M. Greenberg, 10 Columbus Circle,
New York, New York 10019 and James L. 
Highsaw, 1015 18th Street, N.W., Washington, 
D. C., by first class mail.

Peter G. Wolfe