Brotherhood of Maintenance of Way Employees v. St. Johnsbury & Lamoille County R.R./M.P.S. Associates, Inc.

• Decision Date: 18 November 1986
• Docket Number: No. 1070,D,1070
• Parties: 123 L.R.R.M. (BNA) 3108 BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, Plaintiff-Appellee, v. ST. JOHNSBURY & LAMOILLE COUNTY RAILROAD/M.P.S. ASSOCIATES, INC.; St. Johnsbury and Lamoille County Railroad, Inc.; State of Vermont/Vermont Public Service Board/Vermont Transportation Authority; Wabash Valley Railroad Company; and Lamoille Valley Railroad Company, Defendants, Appeal of STATE OF VERMONT/Vermont Public Service Board/Vermont Transportation Authority, Defendants-Appellants. ocket 86-7079. . On Rehearing
• Court: U.S. Court of Appeals — Second Circuit

Page 14

806 F.2d 14

123 L.R.R.M. (BNA) 3108

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES, Plaintiff-Appellee, v. ST. JOHNSBURY & LAMOILLE COUNTY RAILROAD/M.P.S. ASSOCIATES INC.; St. Johnsbury and Lamoille County Railroad, Inc. State of Vermont/Vermont Public Service Board/Vermont Transportation Authority; Wabash Valley Railroad Company and Lamoille Valley Railroad Company, Defendants Appeal of STATE OF VERMONT/Vermont Public Service Board/Vermont Transportation Authority, Defendants-Appellants.

No. 1070, Docket 86-7079.

United States Court of Appeals, Second Circuit.

On Rehearing Nov. 18, 1986.

Samuel H. Press, Samuelson, Portnow & Little, Burlington, Vt., for St. Johnsbury and Lamoille County Railroad, Inc.

John A. Edmond, Guerrieri & Sweeney, Washington, D.C., for Brotherhood of Maintenance of Way Employees.

Before VAN GRAAFEILAND, WINTER, and MINER, Circuit Judges.

WINTER, Circuit Judge:

In our earlier decision, 794 F.2d 816 (2d Cir.1986), familiarity with which is assumed, we remanded the matter with instructions to vacate the judgment against the State of Vermont (the "State") and to enter judgment against defendant St. Johnsbury & Lamoille County Railroad, Inc. ("St. Johnsbury Railway") ¹ in the amount of the National Railroad Adjustment Board's ("NRAB") award. St. Johnsbury Railway has petitioned for rehearing. For the reasons stated below, we grant the petition and vacate the order directing entry of judgment against St. Johnsbury Railway.

A brief review of earlier proceedings is necessary. In April 1985, the Brotherhood of Maintenance of Way Employees ("BMWE") brought an action in the District of Vermont seeking enforcement of a 1984 NRAB award against St. Johnsbury Railway and various other parties, including the State of Vermont. The BMWE moved for summary judgment against all defendants, and the State of Vermont and St. Johnsbury Railway moved for summary judgment against BMWE. On October 11, 1985, the district court granted St. Johnsbury Railway's motion, denied the State's motion, and granted BMWE's motion only "with respect to defendant State of Vermont with regard to the issue of liability to pay the NRAB awards." On December 20, 1985, the district court entered judgment against the State pursuant to a stipulated amount due each claimant.

On January 15, 1986, the State appealed from the grant of summary judgment against it. BMWE neither appealed nor cross-appealed from the grant of summary judgment to St. Johnsbury Railway. A letter submitted to this court by counsel for the State and St. Johnsbury Railway made clear that the State's appeal did not involve the grant of summary judgment to St. Johnsbury Railway. The letter, which was sent to all counsel, stated:

Appellants State of Vermont/Vermont Public Service Board/Vermont Transportation Authority ("State of Vermont") do not appeal from the following orders of the district court:

(1) Denial of the motion for summary judgment by plaintiff-appellee Brotherhood of Maintenance of Way Employees ("BMWE") against defendant St. Johnsbury and Lamoille County Railroad, Inc. ("S.J. & L.C."); and

(2) Granting of the motion for summary judgment by St.J. & L.C. against BMWE.

St. Johnsbury Railway was not a party to the appeal, and neither the State nor BMWE briefed or argued the merits of the grant of summary judgment to St. Johnsbury Railway.

On petition for rehearing, St. Johnsbury Railway now argues that BMWE's failure to cross-appeal deprived us of jurisdiction to modify the district court's judgment by directing the entry of judgment against St. Johnsbury Railway. We agree.

The well-established rule is that

the failure of an appellee to file a notice of appeal from portions of the judgment adverse to him precludes the alteration of the judgment in his favor, though reversal of the judgment as applied to the appealing party may leave the final disposition of the case internally inconsistent.

* * *

The same is true when the plaintiff prevails against one defendant and his claim against another is dismissed, and the unsuccessful defendant appeals. If the appellee wishes to upset the dismissal he must file a timely notice of appeal. Otherwise it is res judicata. Thus the rights of a party under a judgment cannot be disturbed except on appeal by a party aggrieved.

9 Moore's Federal Practice p 204.11, at 4-54 (1986). Zapico v. Bucyrus-Erie Co., 579 F.2d 714 (2d Cir.1978), is controlling. In that case, the plaintiffs obtained a judgment against the defendant, while the defendant obtained a judgment against a third-party defendant indemnitor. The defendant failed to appeal or cross-appeal from the portion of the judgment in favor of plaintiffs. As a result, it was prevented from raising on the third-party defendant's appeal "a claim that the plaintiffs' unappealed judgments against it should be reduced." 579 F.2d at 725. Judge Friendly wrote for the court that the defendant's "failure to cross-appeal precludes us from considering any proposals that would reduce the amount of plaintiffs' judgments even if we were otherwise persuaded to do so." Id. at 726. Because BMWE did not appeal or cross-appeal from the judgment in favor of St. Johnsbury Railway, we are precluded from modifying the judgment in a way that would be adverse to St. Johnsbury Railway.

BMWE argues that the rule that a non-appealing party may not benefit from alteration of the judgment in its favor is merely one "of practice" that can be waived in the interests of justice if the circumstances so require. That argument misstates the applicable rule. The rights under a judgment of a party not before the court may not be upset unless the aggrieved party has appealed. The rule does not exist primarily to punish a non-appealing party for its failure to exhaust avenues of appeal, but to allow beneficiaries of a final judgment to be secure in their rights under that judgment unless the judgment is timely challenged on appeal and the beneficiary of the judgment is given the opportunity to defend the judgment against attack. Any other result would violate the principles of finality and due process. As the Supreme Court has recently held, " '[the] doctrine of res judicata is not a mere matter of practice or procedure inherited from a more technical time than ours. It is a rule of fundamental and substantial justice, "of public policy and of private peace," which should be cordially regarded and enforced by the courts....' " Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 401, 101 S.Ct. 2424, 2429, 69 L.Ed.2d 103 (1981) (quoting Hart Steel Co. v. Railroad Supply Co., 244 U.S. 294, 299, 37 S.Ct. 506, 508, 61 L.Ed. 1148 (1917)).

As a...