Johnson, Jr. v. Railway Express Agency, Inc Reply Brief in Support of Petition for Writ of Certiorari

    1st t h e

(Harnt uf %  Imfpii Stairs
October Teem , 1973 

No. 73-1543

W illie J ohnson, J r.,

— y .—
Petitioner,

R ailway E xpress A gency, I nc., Brotherhood oe R ailway 
Clerks Tri-State L ocal and Brotherhood oe Railway 
Clerks L ily of the Valley L ocal,

Respondents.

REPLY BRIEF IN SUPPORT OF PETITION 
FOR WRIT OF CERTIORARI

J ack Greenberg 
J ames M. Nabrit, III 
Morris J . Baller 
Deborah M. Greenberg 
E ric Schnapper

10 Columbus Circle 
Suite 2030
New York, New York 10019

W illiam E. Caldwell 
R atner, Stjgarmon & L ucas

525 Commerce Title Building 
Memphis, Tennessee 38103

Attorneys for Petitioner
Louis H. P ollak 

Of Counsel



I n t h e

(Emtrt nf tl?p Hmtrb States
Octobeb T erm, 1973 

No. 73-1543

W illie J ohnson, J r.,
Petitioner,

—v.—

R ailway E xpress Agency, I nc., Brotherhood oe Railway 
Clerks Tri-State L ocal and Brotherhood of R ailway 
Clerics L ily of the Valley L ocal,

Respondents.

REPLY BRIEF IN SUPPORT OF PETITION 
FOR WRIT OF CERTIORARI

Petitioner submits this Reply Brief in support of his 
petition for a Writ of Certiorari.

Respondents do not deny that the decision of the Sixth 
Circuit in the instant case that the filing of an EEOC 
charge does not toll the statute of limitations under 
§ 1981 is squarely in conflict with the contrary holdings 
of the Fifth and District of Columbia Circuits in Bou­
dreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 
1011, 1017, n.15 (5th Cir. 1971), and MacMin v. Spector 
Freight Systems, Inc., 478 F.2d 979, 994-95, n.30 (D.C.Cir. 
1973). Respondents suggest that this conflict is unimpor­
tant because the holdings in Boudreaux and MacMin were 
mere dicta. Brief of Respondent REA Express, Inc., pp. 
7-8; Brief of Respondent Brotherhood of Railway Clerks, 
pp. 12-13. This is neither accurate nor relevant.



2

In MacTtlin the plaintiff alleged that jurisdiction over 
his employment discrimination claim was conferred by 
both Title VII and § 1981. The D.C. Circuit upheld the 
action on both grounds, and necessarily reached the toll­
ing question because it controlled the date from which 
plaintiff was entitled to back pay. 478 F.2d 979, 994, n.30. 
In such a decision based on alternative grounds the court’s 
holdings regarding § 1981 are plainly no more dicta than 
its decisions concerning Title VII. In Boudreaux, also an 
action under both Title VII and § 1981, the Fifth Circuit 
held that the filing of an EEOC charge tolled the statute 
of limitations, and that the plaintiff therefore had a cause 
of action. The Court of Appeals also held the plaintiff 
could establish a Title VII claim on remand if he proved 
certain facts. 437 F.2d 1014-16. The decision on § 1981 
was sufficient to establish jurisdiction, and on remand the 
case proceeded as a § 1981 action without any inquiry 
regarding the facts needed to establish a Title VII action.

Regardless of whether the holdings in M addin and Bou­
dreaux are characterized as “dicta”, it is undisputed that 
those decisions establish the rule of law to be applied in 
the District of Columbia and Fifth Circuits respectively. 
On April 29, 1974, five months after the Sixth Circuit 
decision in the instant case, the Fifth Circuit rejected the 
rule adopted below and reaffirmed its decision that the 
filing of an EEOC charge tolls the statute of limitations 
for § 1981. Pettway v. American Cast Iron Pipe Co., 7 
EPD t[9291, p. 7369, n. 130. The rule of Boudreaux and 
Macklin is of course being followed by the district courts 
in the Fifth Circuit. See Henderson v. First National Bank 
of Montgomery, 344 F. Supp. 1373 (M.D. Ala. 1972). When 
such an inescapable conflict exists among the circuits, 
certiorari should be granted so that this Court can resolve 
the matter.



3

Respondent REA Express urges, in the alternative, that 
plaintiffs’ complaint was properly dismissed because no 
employee subject to the Railway Labor Act can sue § 1981 
without first exhausting certain administrative remedies 
under the Railway Labor Act. Brief of Respondent REA 
Express, pp. 12-15. In Glover v. St. Louis-San Francisco 
R. Co., 393 U.S. 324 (1969), this Court held that an em­
ployee need not exhaust his administrative remedies un­
der the Railway Labor Act prior to commencing a civil 
action where resort to such remedies would be futile since 
those to whom the grievance must be submitted would be 
chosen by the defendants against whom the complaint was 
made. 393 U.S. at 330-31. In the instant case the com­
plaint alleges, as did the complaint in Glover, that both 
the union and the employer are involved in the discrim­
inatory practices complained of. Respondent suggests that 
Glover was overruled or limited by this Court’s recent 
decision in Andrews v. Louisville & Nashville R. Co., 406 
U.S. 320 (1972). Andrews, however, involved a dispute 
as to the interpretation of a collective bargaining agree­
ment and the plaintiff’s grievance was solely with the 
employer, not his union, and is clearly distinguishable 
from both Glover and the instant case.

The Respondent Union suggests that plaintiff is bound 
because he did not appeal from two interim decisions of the 
District Court. Brief of Respondent Brotherhood of Rail­
way Clerks, pp. 8-13. First the union urges that plaintiff 
was obligated to appeal from the order of February 16, 
1972, dismissing without prejudice his first complaint. The 
basis for that dismissal, however, was that plaintiff was 
unable to pursue his district court action for want of coun­
sel. Obviously the same lack of counsel which prevented 
plaintiff from litigating in the district court made it impos­
sible for him to appeal anything in February 1972. In the



4

alternative, the Union urges that plaintiff was obligated 
to appeal from the District Court’s decision of June 14, 
1971, granting judgment for the union on all claims and 
for the employer on some, but continuing the litigation as 
to the remaining claims against the employer. The union 
suggests that any order denying relief against one or more 
defendants on one or more equitable claims in a Title VII 
action is immediately final and appealable, and must be 
appealed at once. Virtually all Title VII cases involve 
interim decisions in the district court, prior to completion 
of all litigation at the trial level, granting or denying 
partial relief or dismissing particular claims or defen­
dants. Utter havoc would be wreaked by a rule such as 
that advanced by the union requiring that, upon the entry 
of each of these interim orders, all district court proceed­
ings had to grind to a halt pending an interlocutory appeal. 
Since no appeal of the February 16, 1972, decision was pos­
sible, and no interlocutory appeal of the June 14, 1971 
decision was appropriate, the doctrine of res judicata can­
not be interposed to prevent the litigation on appeal of 
those decisions in the instant case.



5

CONCLUSION

For these reasons, a writ of certiorari should issue to 
review the judgment and opinion of the Sixth Circuit.

Respectfully submitted,

Louis H. P ollak 
O f  Counsel

J ack Greenberg 
J ames M. Nabrit, III 
Morris J . Baller 
Deborah M. Greenberg 
E ric Schnapper

10 Columbus Circle 
Suite 2030
New York, New York 10019

W illiam E. Caldwell 
Rather, Sugarmon & L ucas

525 Commerce Title Building 
Memphis, Tennessee 38103

Attorneys for Petitioner



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