300 F.2d 386 (3rd Cir. 1961), 13571, Serio v. Liss

Docket Nº:13571.
Citation:300 F.2d 386
Party Name:Harry SERIO, Appellant, v. Milton J. LISS, President of Local No. 478 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; and Local No. 478 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; and Arthur J. Goldberg, Secretary of Labor of the United States.
Case Date:November 17, 1961
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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300 F.2d 386 (3rd Cir. 1961)

Harry SERIO, Appellant,

v.

Milton J. LISS, President of Local No. 478 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; and Local No. 478 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America; and Arthur J. Goldberg, Secretary of Labor of the United States.

No. 13571.

United States Court of Appeals, Third Circuit.

November 17, 1961

Argued June 9, 1961.

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Thomas L. Parsonnet, Newark, N.J. (Parsonnet, Weitzman & Oransky, Newark, N.J., on the brief), for appellant.

Marvin S. Shapiro, Washington, D.C. (William H. Orrick, Jr., Asst. Atty. Gen., Chester A. Weidenburner, U.S. Atty., Newark, N.J., Morton Hollander, Atty., Dept. of Justice, Washington, D.C., Charles Donahue, Sol., James R. Beaird, Asst. Sol., Louis Weiner, Deputy Asst. Sol., Dept. of Labor, Washington, D.C., on the brief), for appellee.

Before BIGGS, Chief Judge, and HASTIE and FORMAN, Circuit Judges.

BIGGS, Chief Judge.

Serio, an elected 'Business Agent' of Local No. 478, sued Liss, its President, to restrain the Local from discharging him as business agent pursuant to Section 504 of the Labor-Management Reporting and Disclosure Act of 1959 (The Landrum-Griffin Act), 29 U.S.C.A. § 504. Though he, Serio, had been convicted of the crime of atrocious assault and battery and had served a term of imprisonment, he asserts that the five-year cleansing period, prescribed by Section 504, has expired and he is therefore entitled to retain his office. Serio seeks a declaratory judgment to such effect.

The Secretary of Labor was permitted to intervene as a party defendant by the court below. While no motion for summary judgment was filed, the case was treated by the court below as if cross motions for summary judgment had been made by the parties. The court below decided that Serio was holding office illegally. See 189 F.Supp. 358 (1960). 1

The court below had jurisdiction of the suit at bar by virtue of Section 504(a) of the Act, 29 U.S.C.A. § 504(a), 2

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and Section 1337, Title 28 U.S.C. 3 In our opinion the case at bar is one in which the cause of action 'arises under' a law of the United States, inasmuch as Serio's claim for declaratory relief is based directly upon Section 504(a) of the Act. In so stating we have not overlooked the carefully reasoned opinions of Judge Clary in Strauss v. International Brotherhood of Teamsters, et al., 179 F.Supp. 297 (D.C.E.D.Pa.1959) and of Chief Judge Thomsen in Jackson v. Martin Co., 180 F.Supp. 475 (D.C.Md.1960), based in large part on Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936). In Gully, Mr. Justice Cardozo stated: 'How and when a case arises 'under the Constitution or laws of the United States' has been much considered in the books. Some tests are well established. To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action.' The court below, in declining to follow the reasoning of the Strauss and Jackson cases, draws support for the finding of jurisdiction from Starin v. New York, 115 U.S. 248, 257, 6 S.Ct. 28, 31, 29 L.Ed. 388 (1885). The Supreme Court said by Mr. Chief Justice Waite: 'The character of a case is determined by the questions involved. * * * If from the questions it appears that some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of * * * a law of the United States, r sustained by the opposite construction, the case will be one arising under the * * * las of the United States, within the meaning of that term as used in the act * * *; otherwise not.' The Chief Justice cited Osborn v. Bank of the United States, 9 Wheat. 738, 6 L.Ed. 204 (1824), Cohens v. Virginia, 6 Wheat. 264, 5 L.Ed. 257 (1821), and numerous other authorities.

We think that the sound but contrasting principles of Gully and Starin are sometimes construed, respectively, too narrowly or too broadly, to reflect accurately the reach of federal question

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jurisdiction under Sections 1331 and 1337, Title 28 U.S.C. The Starin rule is not completely compatible with those decisions denying jurisdiction in which the plaintiff's claim is derived from or is dependent upon state law, even though the construction and constitutionality of a federal statute are the decisive issues in the case. See, e.g., Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). Cf. Skelly Oil Co. v. Phillips Petroeum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950). On the other hand, the Supreme Court has recognized exceptions to the Gully standard also. Thus, jurisdiction was not questioned in Jewell Ridge Coal Co. v. United Mine Workers, 325 U.S. 161, 65 S.Ct. 1063, 89 L.Ed. 1534(1954), or Tennessee Coal etc. Co. v. Muscoda Local, 321 U.S. 590, 64 S.Ct. 698, 88 L.Ed. 949 (1944), where the plaintiff employers sought a declaratory judgment negating the federal right asserted by the defendant employees under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. 4 And, when the plaintiff voiced constitutional objections and attempted to enjoin the defendant from carrying out a federal duty prescribed by the Agricultural Adjustment Act, 7 U.S.C.A. §§ 1311-1314, the Court in Mulford v. Smith, 307 U.S. 38, 59 S.Ct. 648, 83 L.Ed. 1092 (1939), expressly bottomed jurisdiction on Section 1337. We think that the facts of the instant case are jurisdictionally indistinguishable from those in Mulford and that the court below had jurisdiction under Section 1337.

We realize of course that there...

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