NEW ORLEANS PUBLIC BELT RAILROAD COMMISSION v. WARD
No. 12886.
United States Court of Appeals, Fifth Circuit.
May 26, 1950.
182 F.2d 654
In order for the Government to make out its case it was necessary for it to pyramid a number of presumptions, among which were: (1) that the car owner would not change his purpose; (2) that such owner would find a corrupt customs official whom he could bribe; (3) that such corrupt customs official would undertake to go through with the deal; (4) that the car owner would not apply for a lawful permit to take the car across; and (5) that, even if he did apply for such permission, it would not have been granted.
I do not believe that the strict construction of the statute which the law requires will permit the forfeiture of this automobile under the proof adduced in this case.
Michel Provosty, New Orleans, La., for appellant.
Bentley G. Byrnes, New Orleans, La., for appellee.
Before HUTCHESON, Chief Judge, and McCORD and WALLER, Circuit Judges.
HUTCHESON, Chief Judge.
Alleging that under date of December 3, 1948, the National Railroad Adjustment Board, 3rd Division, Docket C. L. 4023, Award No. 4204, had made an award1 in favor of appellee, defendant below and that because thereof a controversy existed between it and defendant, appellant brought this suit for a declaratory judgment.
Claiming: that the award was a money award and, therefore, under the provisions of the Railway Labor Act,
The prayer of the petition was that a judgment be rendered:
“1. Decreeing that the refusal on the part of Public Belt to reinstate Mrs. Ward to her former position was not in violation of the Railway Labor Act, as amended, and was justified and warranted and constituted no breach of any obligation by Public Belt to Mrs. Ward.
2. Further decreeing that no wages whatever, or any other amount, are due by Public Belt to Mrs. Ward.
3. Further decreeing that Mrs. Ward has no right to reinstatement in the employment of Public Belt with or without any seniority or any other rights.
4. Further decreeing that the said Mrs. Ward has no rights, claims or demands against Public Belt growing out of or in any way connected with her prior employment by Public Belt.
5. Further decreeing that the award by the National Railroad Adjustment Board is not final and binding on Public Belt.
6. Further rendering such other judgment, decrees and orders as may be proper and equitable in the premises.
7. Further decreeing that Public Belt be awarded such costs as may be incurred in this proceeding.”
Defendant appeared by motion to dismiss for lack of jurisdiction,2 and the motion coming on to be heard, it was sustained and the cause was dismissed.
Appellant is here insisting that, in declining to take jurisdiction and dismissing the suit, the court erred.
We do not think so. While in its brief and in oral argument, appellant makes considerable point of its effort to obtain from appellee a statement of the amount claimed by her to be due, no question of the amount due under the award was submitted to the court for decision.
On the contrary, the only controversy really put up to the court was whether plaintiff was bound by, and must obey, the award. In short, the only question presented here for decision is, May a court after an award has been rendered by the Board against a defendant carrier, entertain a suit for declaratory judgment as to the correctness and binding effect of the award?
We think it quite plain that the court below correctly answered the question in the negative. The statute under which the award was made3 makes specific provision for hearings and awards, and subsec. 1 (m)4 provides that, except as to a money
It is plain, we think, that plaintiff‘s suit presented no justiciable controversy requiring or admitting of a declaratory judgment. To the extent that the suit sought an interpretation of the award, the statute has prevented this being done by making exclusive provision for its interpretation by the Board. To the extent that it sought to set the award aside, the statute has prevented this by its provision that the award is final and binding.
Finally, if, contrary to the whole tenor of the suit, it could be considered as one on a money award, this would not help appellant, because the suit was not brought, as provided in the statute, by the petitioner or by any person for whose benefit the order was made. That no case for declaratory judgment is presented has already been precisely determined against the contention of appellant in Boswell‘s case.6 It has been recently again determined in principle by the Supreme Court in the case of Marion Slocum v. Delaware, Lackawanna & Western Railroad Co., 339 U.S. 239. It is true that in that case the suit was brought in the state court and before the Board had acted, instead of, as here, in the federal court and after it had acted, but the language and scope of the decision is conclusive authority for the view that we take, that the complaint does not present a justiciable declaratory judgment controversy. The opinion of the dissenting judge, on page 8, makes this plain:
“Throughout this opinion I have assumed that the Court means only to impose a requirement of primary recourse to the Board. But that inevitably means many litigants would be deprived of access to the courts. The extent of judicial review of awards other than money awards is doubtful, and it is highly questionable whether even a money award can be reviewed in the courts if only the carrier wishes review. Most important, the statute provides no relief for a petitioning party—be he union, individual or carrier—against an erroneous order of the Board.”
The district judge was right in refusing to exercise the invoked jurisdiction. His judgment is
Affirmed.
WALLER, Circuit Judge (dissenting in part).
I think the lower Court had jurisdiction to render a declaratory judgment in this
The majority opinion deems the only question involved to be “May a court after an award has been rendered by the Board against a defendant carrier, entertain a suit for declaratory judgment as to the correctness and binding effect of the award?”
If I could agree that the foregoing question is the only one involved in this case, I assuredly would answer it as did the lower Court and as did the majority, but I think that implicit in this controversy is the right of the Defendant to have properly and seasonably ascertained the amount of money which it is required under the order of the Railway Adjustment Board to pay. I agree that the lower Court does not have the power to determine the question of whether or not the employee should be reinstated or whether or not she has lost her seniority by her failure to come back to work at the end of her leave of absence, but such a holding would in no wise mean that the Court was without jurisdiction to determine that which the Board did not determine, viz., the amount of compensation or pay that the Railroad should make to the employee.
The following are significant dates and events:
July 9, 1942—Mrs. Ward granted leave of absence from railroad.
October 16, 1943—Mrs. Ward released from Government service.
February 17, 1945—Mrs. Ward applied to the Railroad for reinstatement.
December 3, 1948—Railway Adjustment Board ordered Mrs. Ward reinstated with seniority unimpaired and pay for any loss in wages.
December 18, 1948—Railroad requested statement of earnings, time lost, amount claimed by Mrs. Ward to be due, etc.
July 13, 1949—This suit for declaratory judgment filed by Railroad.
April 10, 1950—Suit in State Court filed by Mrs. Ward to enforce award of Railway Adjustment Board.1
Mrs. Ward‘s leave of absence expired on October 16, 1943, the day she was released by Colonel Bedell from the Army work, but she waited sixteen months [February 17, 1945] before she applied for reinstatement. Meanwhile the seniority of regular employees continued to increase to the extent that during the sixteen months there were employees who, under the Union contract, had acquired seniority in excess of that of Mrs. Ward. The record does not show when she instituted proceedings before the Railway Adjustment Board, but she did not procure an order from the Board until December 3, 1948. After procuring that order she failed to furnish a statement requested by the Railroad as to her earnings, losses, time out, etc., which information was essential in order to comply with the Board‘s order as to the payment of wages. After procuring the order of the Railway Adjustment Board which afforded her the right to apply to the Court to enforce payment, she waited another sixteen months before she filed such suit. Meanwhile, more pay was daily accumulating in her favor for which she was rendering no service to the Railroad.
The Railroad, caught in a cross fire between the Union on the one hand and the Railway Adjustment Board on the other, could not safely reinstate Mrs. Ward with no loss in seniority without violating its agreement with the Union. As I understand it, the position to which she should have been reinstated depended to some extent upon rights of seniority in other employees that had accrued during the interval between the expiration of her leave of absence and the date of her offer to return.
I do not believe the Courts have reached that state of impotency where they cannot declare the rights of the parties when the party, to whom a statute gives a right of recovery, will not furnish the necessary information upon which to calculate the amount due her or the position of seniority to which she should be returned, nor seasonably take steps to have such rights ascertained by the courts.
This suit for declaratory judgment is not an action under the Railway Labor Act.
This is an actual controversy involving in excess of $3,000.00 which arises under the laws of the United States, and it seems to me that under Prayer No. 6 of the complaint, which seeks the rendition of “such judgments, decrees, and orders as may be proper and equitable in the premises“, the Court had jurisdiction—not to set aside the Board‘s order—but of the controversy to determine the amount due, to the end that there might be compliance with the Board‘s order. The
These considerations urge me to the view that the Railway Labor Act did not destroy the jurisdiction of the Court to declare the amount of back pay due Defendant, and instead of sustaining the motion of the Defendant to dismiss the action for want of jurisdiction, the Court should have required the Defendant to file a compulsory counter-claim under