Dillard v. Chesapeake and Ohio Railway Company

• Decision Date: 03 December 1955
• Docket Number: No. 1513.,1513.
• Citation: 136 F. Supp. 689
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Clayborne T. DILLARD et al., Complainants, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a corporation, System Federation No. 41, Railway Employes' Department of the American Federation of Labor, et al., Defendants.

136 F. Supp. 689

Clayborne T. DILLARD et al., Complainants, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a corporation, System Federation No. 41, Railway Employes' Department of the American Federation of Labor, et al., Defendants.

No. 1513.

United States District Court S. D. West Virginia, Charleston Division.

December 3, 1955.

T. G. Nutter, Charleston, W. Va., and Joseph C. Waddy, Washington, D. C., for plaintiffs.

Amos A. Bolen and Bert H. Early of Fitzpatrick, Marshall, Huddleston & Bolen, Huntington, W. Va., and Strother Hynes, Richmond, Va., for The Chesapeake & Ohio Railway Co.

W. G. Stathers, of Stathers & Cantrall, Clarksburg, W. Va., and Richard R. Lyman of Mulholland, Robie & Hickey, Toledo, Ohio, for all defendants other than The Chesapeake & Ohio Railway Co. BOREMAN, District Judge, sitting by special designation.

This case was remanded to this Court by the Court of Appeals for the Fourth Circuit. Dillard v. Chesapeake & O. Ry. Co., 199 F.2d 948, 952.

The second amended bill of complaint was considered by the Circuit Court of Appeals, and in that complaint the plaintiffs alleged several grounds of federal jurisdiction. This Court (Moore, J.) dismissed the second amended complaint for lack of jurisdiction and held that "none of the asserted grounds of jurisdiction is applicable to the claims of the bill of complaint".

The Circuit Court of Appeals reversed the order of this Court dismissing the second amended complaint for lack of federal jurisdiction and remanded the cause, concluding its opinion with the following paragraph: "For the reasons stated, the order dismissing the action for lack of jurisdiction will be reversed and the cause will be remanded to the court below for further proceedings not inconsistent with this opinion".

In the able opinion of the Court of Appeals written by Parker, Chief Judge, the Court addressed itself to only one of the asserted grounds of federal jurisdiction, namely, the Railway Labor Act, 45 U.S.C.A. § 151 et seq., and omitted all reference to the asserted jurisdictional grounds under the Fifth Amendment, the Civil Rights Act, 42 U.S.C.A. § 1981 et seq., and the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq. At the hearing and upon the presentation of oral arguments before this Court touching upon the matters now being considered, a question arose as to the interpretation of the opinion of the Court of Appeals. The defendants took the position that the failure of the Court of Appeals to comment in its opinion upon all asserted grounds of federal jurisdiction, other than jurisdiction under the Railway Labor Act, was tantamount to an affirmance of this Court's opinion that those other grounds were insufficient, resulting in the removal of those issues from further consideration in this cause. The plaintiffs took the opposite view, urging that the order appealed from did not dismiss the asserted grounds of federal jurisdiction in severalty but dismissed the complaint as a whole, and that the unlimited reversal and remand by the Court of Appeals nullified the order of this Court dismissing the second amended complaint and thus reinstated the complaint in its entirety.

When this case was before this Court for consideration upon the defendants' motions to dismiss for lack of federal jurisdiction, Judge Moore, in an opinion dated March 22, 1952, which was made a part of the record on appeal, discussed in detail each of the four asserted grounds of jurisdiction and ruled specifically upon each ground. He concluded that the defendants' motions to dismiss for lack of federal jurisdiction must be sustained. With respect to the Fifth Amendment, the Civil Rights Act and the Interstate Commerce Act, a reading of the opinion discloses that the dismissal of the cause was based upon the failure of the plaintiffs' complaint to state a justiciable claim under either the Fifth Amendment or the two cited statutes, and not because federal courts do not have jurisdiction to consider cases arising thereunder. Judge Moore held that with respect to the Railway Labor Act, the claims of the plaintiff's were not justiciable in the District Court but should be taken before the National Railroad Adjustment or Mediation Boards.

Judge Moore's opinion was ordered filed as a part of the record and, upon plaintiffs' appeal, exception was taken to this Court's ruling upon each jurisdictional ground. Each point was extensively briefed by counsel for both the plaintiffs and the defendants and was argued before the Court of Appeals.

In its opinion, the Court of Appeals held that certain allegations of the plaintiffs' complaint fixed jurisdiction under the Railway Labor Act in the District Court and not in the National Mediation Board or the National Railroad Adjustment Board, omitting all reference to the other asserted jurisdictional grounds.

In Gulf Refining Co. v. United States, 269 U.S. 125, 46 S.Ct. 52, 53, 70 L.Ed. 195, the Court held that "the direction to proceed consistently with the opinion of the court has the effect of making the opinion a part of the mandate, as though it had been therein set out at length". In Metropolitan Water Co. v. Kaw Valley Drainage District, 223 U.S. 519, 32 S.Ct. 246, 247, 56 L.Ed. 533, the Supreme Court said: "It is true that the mandate did not in terms make such an order, yet its direction that the Circuit Court `should proceed in accordance with the opinion' operated to make the opinion a part of the mandate as completely as though it had been set out at length".

The mandate of the Circuit Court of Appeals ordered that this cause be remanded to this Court for further proceedings not inconsistent with its opinion. If the Court of Appeals had believed that a justiciable claim could be maintained under any of the other asserted jurisdictional grounds, it would most certainly have so stated, for it would not have deprived the plaintiffs of an additional ground for recovery if, in fact, such an additional ground were available to them. If the Court of Appeals had believed that jurisdiction lay under any one of the other grounds, to so state when the case was before the Court would tend to avoid a protraction of this litigation. It is the conclusion of this Court that the Court of Appeals, having sustained jurisdiction for the reasons stated in its opinion, which reasons are confined to the authority of the Railway Labor Act, impliedly sustained this Court's previous opinion and order as to the other asserted jurisdictional grounds. This appears to be the only construction of the mandate of the Court of Appeals which is consistent with that Court's opinion.

Even if this Court should have reached the conclusion that the failure of the Court of Appeals to discuss its consideration of the other three asserted grounds of jurisdiction did not amount to an implied affirmance of the action of Judge Moore, there is ample authority for the proposition that, in federal practice, judges of co-ordinate jurisdiction sitting in the same court and in the same case, should not reconsider the decisions of each other.

This case now is pending before this Court upon one jurisdictional basis alone, namely, under the Railway Labor Act, for a ruling upon the motions of the defendants to dismiss or the alternative motions for summary judgment, and for ruling upon the motions of the defendants to strike portions of two affidavits filed by the plaintiffs in opposition to the motions for summary judgment.

Consistent with the opinion of the Court of Appeals, an order will be entered herein overruling the motions of the defendants to dismiss the second amended complaint because of lack of federal jurisdiction.

On the appeal, the Court in its opinion said:

"It is immaterial that the unions, in exerting their power to discriminate against the Negro employees, did not do so by entering into a formal bargaining contract. It is the unlawful use of power vested in the unions by the Railway Labor Act which gives rise to the jurisdiction of the court to afford relief, not the particular form which such abuse of power takes. As said in the above passage from the opinion in Howard case Brotherhood of Railroad Trainmen v. Howard, 343 U.S. 768, 72 S.Ct. 1022, 96 L.Ed. 1283, `The Federal act thus prohibits bargaining agents it authorizes from using their position and power to destroy colored workers' jobs in order to bestow them on white workers. And courts can protect those threatened by such an unlawful use of power granted by a federal act'. It is, of course, just as unlawful to use the power of the bargaining organization to prevent advancement of colored workers as to use it to destroy their jobs."

The plaintiffs' second amended complaint contains three counts. Judge Parker, in his opinion, said, 199 F.2d at page 948: "Plaintiffs ask a declaratory judgment, injunctive relief and damages. The heart of the grievance of which they complain is thus stated in paragraphs 8, 9 and 10 of the first count of their second amended complaint * * *." The Court, on pages 948 and 949 of its opinion, then proceeded to quote said paragraphs verbatim.

Paragraphs 8, 9 and 10 of the first count were incorporated, by specific reference, in counts 2 and 3 of said complaint. Other paragraphs of the first count, which are likewise incorporated by reference in counts 2 and 3, must be considered and read in connection with the three paragraphs quoted by the Court. Paragraph 8 refers to the policies and practices of the C. & O. and the uniform terms of the employment of the machinist helper plaintiffs. Paragraph 9 refers to the policies and practices of the C. & O. and the uniform terms of the employment of the plaintiffs who are identified as laborers. Paragraph 10 refers to the general practice and custom between the C. & O. and the other defendants, and the uniform terms of employment in the mechanical department.

By way of illustration, paragraph 6 charges that Negroes, including the plaintiffs and...