Warren E. Burger: We'll hear arguments next in 73-1773, Foster against Dravo Corporation. Mr. Sachse.
Harry R. Sachse: Mr. Chief Justice and may it please the Court. This case is here on writ of certiorari to the Court of Appeals for the Third Circuit. The question presented by the case is whether a requirement of a collective bargaining agreement that an employee work not less than 25 weeks in the prior year to receive a vacation can be used to prevent a returning veteran from receiving a vacation in the year of his return and in the year after his return. The Court of Appeals held that the company could deny vacations to the veteran for failure to meet this 25-work week requirement, it's our position that this interpretation keeps a veteran from returning to his employment without loss of seniority status or pay and it's in contravention of 50 U.S.C. 459, the Selective Service Act. I've had a chart passed around which I've also supplied to opposing counsel which I'll turn to in a minute and I think will help clarify the -- what really happened in this case.
William H. Rehnquist: I take it that's illustrative only, isn't it?
Harry R. Sachse: It's only illustrative. That's correct. I've decided to use instead of a big display that seemed unwieldy.
Potter Stewart: Is it continuing escalator here?
Harry R. Sachse: That's right.
Potter Stewart: The true continuing escalator.
Harry R. Sachse: Well, we argue that a continuing escalator principle should apply in this case. The contract in question has a 25-work week requirement but as to veterans, this is all that the contract says, this is on -- in the appendix page 48. It says, “An employee inducted into the Armed Forces of the United States shall be given the minimum re-employment rights granted him under the Selective Service Act as amended. So the question then is --
Lewis F. Powell, Jr.: I'm just curious Mr. Sachse. I gather this being Selective Service Act is only for a conscripted army.
Harry R. Sachse: No, that's not so. It applies to -- to reserve units and it applies to --
Lewis F. Powell, Jr.: Well, how about to new volunteers?
Harry R. Sachse: -- to volunteers in the army.
Lewis F. Powell, Jr.: It does? To new volunteer army?
Harry R. Sachse: Yes, it does. Yes it does.
Warren E. Burger: A volunteer, I suppose, is inducted in the same sense that a draftee is inducted, isn't he?
Harry R. Sachse: Well, there are different sections of the act but they apply the exact same rule.
Byron R. White: You mean, anybody can say to his work time he's been a volunteer for the army it would be years but they never are coming back?
Harry R. Sachse: That's right. And the Act was passed in 1941 with the idea that a lot of people would be volunteering and not just that and to encourage people to --
Potter Stewart: Volunteering for a career in the army? Like what if he say --
Harry R. Sachse: No.
Potter Stewart: -- as a volunteer for 30 years.
Harry R. Sachse: No, their limits on how many years if applies drafted I think its two years volunteer to something, I don't recall the details --
Potter Stewart: But they are short.
Harry R. Sachse: There are limits there and there are also limits on how quickly you have to re-apply within 90 days of being released after you apply to the same.
Lewis F. Powell, Jr.: I might say Military Selective Service Act is a little misleading, isn't it?
Harry R. Sachse: Well that cites at 10 on the appendix --
Lewis F. Powell, Jr.: To that Act?
Harry R. Sachse: Well, its part of that Act but it -- but it covers more than that.
Byron R. White: Right now, right now if you volunteer for a full hitch in the army, it -- it doesn't have to do with you involved here, this Act upon us.
Harry R. Sachse: I don't want to make a definite statement on that. The Act applies -- the Act applies to more than just draft. I know it applies to reserve units.
Lewis F. Powell, Jr.: If it didn't apply to the volunteer army, this would be rather just this case, wouldn't it? It's a statute if the decision here is to apply that.
Harry R. Sachse: But it's really, it's just. It's useless for me to speculate about whether it applies in a pure volunteer situation. There's no question in this case that it does apply to this employee. Now, if you turn to the chart, I'll show you what happens with this employee and it's a fairly typical situation. He went to work on August 5th, extreme left of the chart. During the first 22 weeks, he received no vacation. During the next year, he received a vacation of approximately three days based on the amount of work in the prior year under provision that is only there for initial employees. During the next year, he had served enough, so that he was a full-fledged employee getting regular vacation pay which would -- which is seven days. So, they get even in the third year but during that third year, he went into the army, into the navy actually. He begins almost two years of military service. He's paid when he goes into the navy. His vacation benefits are earned up to that point. So, we have no quarrel about old -- about benefits prior to that date.
Potter Stewart: I'm not sure I follow you.
Harry R. Sachse: On March 6, 1967 --
Potter Stewart: Yes.
Harry R. Sachse: -- he begins his military service and he's paid 56 hours of vacation benefit. Now, let me just proceed and I think you will follow me. He then is in navy for about a year and a half or almost two years. When he returns, he gets no vacation benefit, no vacation at all during that first 13-week period and he gets no vacation during the entire next year under this contract. It's full work year and the result for that first of all, to put it in some simplified way but I think this is what the Act is really about from his standpoint because he went into the service. His having to go through the whole business of being a rookie again of having a year and a half before he works up to getting a vacation again.
Potter Stewart: No, he doesn't even get the benefit of a rookie because --
Harry R. Sachse: That's right. Less --
Potter Stewart: -- the rookie got to pro rata of 20.
Harry R. Sachse: That's correct.
Potter Stewart: 20 hours.
Harry R. Sachse: He doesn't even get the pro rata that a rookie would get.
Potter Stewart: Right.
Harry R. Sachse: Now, the company says that this is just a straight application of the contract because in these 13 weeks, when he came back, he hadn't serve 25 weeks in the prior year, then in the full year, when he comes back, he hadn't serve 25 weeks at the plant in that year and so this is the way the contract works. Now, our position to really just get to the heart of it right at the beginning, our position is that where a company bases its vacation benefits on a work requirement such as 25 weeks in a year which is just half of the year's work, but what they're really doing the way the employee see it and the real effect of what they're doing is saying that a person who's a steady employee of the company, who's there working every year, gets a vacation every year, after he's gone through his initial period and that under this Court's decision on the Selective Service Act and under the language of the Act. This is part of seniority and status, of longevity in the company and when he comes back, he shouldn't be required to sit there and re-earn his right to a vacation. He should start getting vacations the year he comes back to work for the company and certainly, I can see problems in the first year where he can play around, that he worked just three weeks that year, that he worked almost the whole year but here, even in the second year, he received no vacation.
Potter Stewart: Is the maximum vacation 56 hours?
Harry R. Sachse: No, it goes up depending on how many years he's been in employment.
Potter Stewart: I see.
Harry R. Sachse: And the company is not dispute that the way of figuring the maximum vacation is continuous and he would get credit for his years in the service for that (Voice Overlap) just arguing that qualification for it, 25-week qualification.
Warren E. Burger: Is your argument -- does your argument one of essentially of linking vacation rights to seniority?
Harry R. Sachse: That's correct.
Warren E. Burger: On his return.
Harry R. Sachse: Our argument makes a distinction in vacations and I think it has an advantage to it and that it I think can get the lower courts out of the kind of mess that they've been in, in trying to work out every detail of every contract. Our argument is this and we think it's what the Act calls for and what the decision that this Court calls for. That where a company makes a close correlation between hours worked and vacation pay, so that for every 24 hours work, you get three hours towards a vacation, something like that. Then all the employees know it. They know they're not getting rewarded for being a continual employee but just each hour they got this little amount of extra pay.
Potter Stewart: And that's compensation really.
Harry R. Sachse: And in that, we say, it's compensation. It's not seniority, it's compensation but when there's not that kind of one-to-one ration, when the real question is whether a man has been a steady employee and if he is, he could then say 25 weeks where the average person probably put in 50. Here, he gets same vacation with his 25 weeks, 30 weeks, 35 weeks, so forth and in that situation, what you're really looking at is seniority in the plan and a man should not lose his vacation because he's been in military service in that situation.
William H. Rehnquist: Does the record show Mr. Sachse what the typical number of weeks put in per year was by a worker would say five years seniority? Was it the kind that he were even expect to work 49 or 50 weeks a year was 25 or 30 more likely?
Harry R. Sachse: I think there is data in the record on worksheets of particular employees junior to him, 47 weeks, the week -- the year that he was there beforehand, I believe is typical. It was stipulated that he would have worked more than 25 weeks in each of the years that he was in the military service and that people junior to him had worked more than 25 weeks in each of those years but there's sufficient data in the record to show, it's also stipulated that he was not a temporary or part-time employee. And there's sufficient data in the record to show that this was a steady job and he still works there.
William H. Rehnquist: I would suppose --
William J. Brennan, Jr.: What do you believe did petitioner receive while he was in the service?
Harry R. Sachse: I don't know. It's not in the record. I think we can all assume he received whatever it is that the military gives during that time. It's our position that it would be a can of worms to get into that because you then have to start dealing with employees who've been in combat and what do you -- how do you count the leave that a person gets when he's in Vietnam or something like that.
Potter Stewart: Well, there is such a thing as a terminal leave in the military which they used to be and I think that they will have two-and-a-half days a month, is that still true?
Harry R. Sachse: I just don't know. I assume he did get some leave in the military. We certainly don't argue that he received no leave in the military and we don't ask that he be paid --
William H. Rehnquist: Let me interrupt you just a minute Mr. Sachse.
Harry R. Sachse: Yes.
William H. Rehnquist: I would assume that by the Government's own theory, it might make a difference whether the typical number of weeks worked was say 30 and/or 50 that if the most a man could expect to work during the year were 30-32 weeks and the company required 25, then it might be more analogous to a kind of an earned credit type of thing.
Harry R. Sachse: Well, then I understand the point you're making. That is not the Government's theory for this reason and in the Accardi case. This Court pointed that in a -- in a scheme for a severance pay that was based on years of service in the year of service and the year of service for so many months of service and the month of service was a month in which so many days of service that it could work out where a person that only had 10 or 12 days of service and it would still be counted as a year of service. Now, the Court rejected arguments in that case that that was very untypical sort of thing that a man would be fired if he was working that little and the Court concentrated on the proposition that that the scheme itself shows that that's not a one-to-one or not a close ratio at all between the amount of vacation and the hours worked. Now, I think the facts of this case and as their worksheets in the appendix that will show this would show that the 25 weeks was nowhere near a typical work year that the 47 weeks or 50 weeks was much closer to it but we don't suggest that the Court should get into that in every case. One of the problems in this kind of case that the total amount of money that you're talking about is usually small in any individual case and that the companies need some fairly certain way of determining whether a vacation benefit is old or not and so do the employees and it's better to seek a solution that can be easily applied.
Warren E. Burger: Mr. Sachse, while you're pausing for a moment, let me see perhaps this is oversimplification. Are you trying to attack the 82 weeks of military service on to the bar -- the gray marked bar that preceded it or you just kind of attack your two gray marked bars together for purposes of vacation?
Harry R. Sachse: Let me put it a different way. This way, I understand it. What I'm trying to do is say that when the man returns that in that year, he can count his military service for vacation entitlement, so that --
Warren E. Burger: Even though he got a vacation from the army?
Harry R. Sachse: Even though he got a vacation from the army that the military service is a separate thing that the purpose of the Act is to: number one, encourage people to go into the military. Number two, to prevent people who go into the military from being hurt when they come back and --
Warren E. Burger: Well then, if that's the theory then you ought to be able to get the differential and pay too. That's your basic theory.
Harry R. Sachse: No, what we -- no, our theory is that you can ignore what happened in the military, that the question is when this man came back when you start figuring his first vacation after he's back, you have the right to count his time in the military just as if it had been --
Thurgood Marshall: Well, then but you're entitled to the first month off?
Harry R. Sachse: Sir?
Thurgood Marshall: Will be entitled to the first month off a vacation?
Harry R. Sachse: Well, --
Thurgood Marshall: You'll see that's -- you got to get out of that.
Harry R. Sachse: That's a problem in this that bothers me and that is when a man comes back with only a week or two towards the end of the year and we've debated a bit about how this should be solved. Should you do a pro rata in that year and then let it be the first full year. The thing that shouldn't be allowed to happen is he's been in the military, he's come back, he started the year January 1st as everybody else, he shouldn't have to work through that whole year and not get a vacation, okay.
Warren E. Burger: Well then going back to my question, your answer to my question I should think or simply would be, yes you are trying to attack the number of days of military service onto the number of days of employment that preceded this number of days.
Harry R. Sachse: I think that's correct. I think fair answer to that question is yes.
William J. Brennan, Jr.: Will he get vacation for both 1967 and 1968?
Harry R. Sachse: He would get -- I prefer that speaking of the year in which he gets it because there's some confusion that he would get a vacation benefit in the year 1968.
William J. Brennan, Jr.: That's right. Of how much -- what -- if he had been in continuous employment, he would have had in 1967 a vacation of how long, a week, two weeks?
Harry R. Sachse: Seven days, I believe it is.
William J. Brennan, Jr.: Seven days? And in 1968, he would have get a --
Harry R. Sachse: He would get a seven-day vacation.
William J. Brennan, Jr.: Alright. So, are you suggesting that he gets 14 days vacation in the remaining 13 weeks of 1968?
Harry R. Sachse: No, no, no. I'm only saying that in the year he comes back --
William J. Brennan, Jr.: Well, is it not the year he came back?
Harry R. Sachse: He came back in 1968, October 7, 1968. He came back October 7, 1968.
William J. Brennan, Jr.: Alright, now, what -- how much vacation does he get? The vacation he didn't have in 1967 as well as the vacation he didn't have in 1968?
Harry R. Sachse: No, we'd only given the same vacation that he would've gotten in 1968 if he'd been working steady.
William J. Brennan, Jr.: And we forget 1967.
Harry R. Sachse: Forget 1967. In 1967 he got taken --
William H. Rehnquist: He got plenty time to leave.
Harry R. Sachse: That's right. It was taken care of when he went in.
William J. Brennan, Jr.: Oh, I see.
Harry R. Sachse: Now, we have an alternative position which is that this --
William H. Rehnquist: I take it's drawn by Congress, aren't you that --
Harry R. Sachse: Well, when, I say we, what I mean is I really have to mean to two things. One is that the Department of Justice represents the individual Earl Foster, out there right now and we argue the case for him. When I say we, we also we also mean the Department of Labor and the Justice Department support the position that we have taken in this -- in this brief. I haven't gotten to talk much about the cases but there are two cases it seem to me you are in control of this language to the statute and two cases. Language to the statute is that a veteran should be restored in such manner as to give him such status in his employment as he would he have enjoyed if he had continued in such employment continuously from the time of his entering the armed forces until the time of his restoration to such employment. That was an Act in 1948 that really codifying this Court's decision, perhaps codifying and expanding this Court's decision in the case called Fishgold but the Court has had two cases on questions similar to this. The big issue for a while prior to the Accardi case among people who dealt with this problem was whether vacation benefits severance pay pensions counted as questions of seniority and status of whether they on the other hand counted as insurance or other benefits which would be governed by the contract provisions for people on leaves of absence. In Accardi, the Court for -- the Court defined the insurance or other benefits clause and it said that that was something in addition to the seniority clause that it didn't keep severance pay from being seniority and that it applied to benefits the serviceman might get while he's in the service. In other words, that if an employee on leave of absence could still go to the railroad hospital or his wife could still go to the railroad hospital, the insurance and other benefits clause would assure that his wife could still go there even if he was in the service and the Court very specifically ruled on or discussed that the insurance and other benefit clause. Then prior to the Accardi decision, in the Magma Copper case that this situation, employees under -- who had been denied both vacation pay and holiday pay. In the vacation pay, they were denied it because -- although they had satisfied their work requirement of 75% of the available shifts, they were not present at the plant on the last day of the year because they were in the military. As to holiday pays, when they come back from the military, just think about this when they'd come back from the military, this were then the Vietnam War. They were denied holiday pay for Fourth of July and for Independence Day though everyone else got it because they hadn't satisfied a three-month requirement. They had not been on the payroll three months when they came back. Now, the Ninth Circuit upheld that and said the company could do that. It could apply its contract. Then the Accardi case was decided and the Ninth Circuit had the case back again on rehearing. They reaffirmed their prior decision with one judge dissenting, saying, “We can't do this. This is not what other benefits means. This is part of seniority see the Accardi case.” The veterans petitioned this Court and the Court granted writ of certiorari and the Court summarily reversed the Ninth Circuit with an opinion that just said reversed, see Accardi with the citation. There was a dissent in that case. Justice Stewart -- Justice Douglas wrote the dissent. Justice Stewart and Justice Harlan joined in the dissent and in the dissent, they would have made a distinction between the amount of vacation or holiday pay that a person could get and the entitlement to it and would have said that the question of the entitlement to it is not a question of seniority and is something that would have to be governed by the contract but that's the position that the Court did not take and that's the subversive opinion said in an earlier case and as a result of that case too, we think it's even clearer that in this situation that -- that the entitlement should not be governed by the contract but should be a question of seniority that the serviceman has a right to. Now, I want to answer one question raised by the respondents in their brief. They say that as a matter of sort of legal principle that a vacation -- that vacation pay is a part of wages paid, of salary and that therefore it has to be something other than seniority, that you can't give a man a salary for the time that he didn't worked and they cite a number of cases and arbitration decisions but those cases make a different point as we read and that is in the 1930's, the Court sometime said that vacation is just a gratuity and that the management can do it at once with it and in a number of cases, arbitrators in courts held that vacations are not just questions of gratuity that there are things bargained for and in that sense, they say, that there are function of wages but there certainly was no attempt in those cases to answer the kinds of questions that are set forth here. And --
Warren E. Burger: The form -- those holdings held that that's the form of deferred compensation, isn't it?
Harry R. Sachse: That's correct.
Warren E. Burger: So, it's related directly to the wages he received at the time.
Harry R. Sachse: It's related to the wages, it's related to his seniority in the plant. It clearly is not just for --
Warren E. Burger: It's the length -- the length of service, the length of service plus the wages.
Harry R. Sachse: That's right. It really -- the reason that people have had trouble with the vacation thing is analytically, it's somewhere in between a payment and a seniority right because it's not just wages, it's not tied that closely to it. It's for reasons other than wages too. It keeps employee happy and able to work. It's an in between sort of thing and the Court has ruled on it in the -- in Magma Copper to say that it is a function of seniority or I take that decision as ruling that way, that it's protected by the Act. There are -- I want to give you another citation which is United States versus Embassy Restaurant, 359 U.S. 29 which holds that payments into a union fund though analytically part of wages are not considered part of wages in Bankruptcy Act. It simply illustrates the point that you have to look at the particular act in particular context and there's no flat rule one way or the other, other than what the statute says in the cases this Court has decided ruling on.
William H. Rehnquist: What the Government's position, Mr. Sachse, in the case of the contract that calls for a one day vacation for each month worked the preceding year?
Harry R. Sachse: The -- our position is that if it's clear in the contract -- one day vacation for each month worked.
William H. Rehnquist: Each month, each two weeks, whatever you want to call it.
Harry R. Sachse: Well, if it's tied close enough to a precise amount of work done, we then say that it's a pure function of wages and if the contract is clear that the returning veteran does not have a right to it and the broadest example of that is a pooled vacation benefit where money is actually set aside in a pool for vacation. We don't claim with that kind of program that a person would have this right. But what we're talking about is veteran's legitimate expectation when he returns to work. I don't think he would expect it in that kind of program but he would here.
Warren E. Burger: But isn't -- isn't his legitimate expectation that he will not lose the benefit of that period from the time he began to work there until the time he went into the service? If he gets his place in line, as of the date when he left, why isn't he restored fully than under both the act and the contract?
Harry R. Sachse: Well, he's being made a new man again, a rookie again. He's having to go through a year-and-a-half again before he gets his vacation.
Warren E. Burger: Well that --
Harry R. Sachse: And the company's has written at that way but we don't think that squares with seniority and status provisions of the Act and particularly with this Court's prior cases on it. This Court, in times perhaps when veterans were given a little more deference than they have been from Vietnam War has interpreted this Act, so as to really protect veterans and we're trying to support those interpretations.
Warren E. Burger: With no credit to the employer for whatever number of days vacation were given in the military service?
Harry R. Sachse: No. No, Your Honor.
Warren E. Burger: On what theory do you just disregard that theory?
Harry R. Sachse: That vacation was part of his military service. He may not have wanted to be in Vietnam or he may not have been able to go anywhere but God knows where on that vacation. Now, it could have been wonderful. It might have been two weeks in Paris, you know, but we just --
Warren E. Burger: Well then, it might have been a terminal leave pay as Mr. Justice Stewart suggested that the last -- and that's common with military personnel, is it not, that they are discharged as of March 30th that they leave active duty on --
Harry R. Sachse: There are a lot of vagaries in the military about how these things worked, we're trying to keep out that you know you can be discharged and have to go across the country and think that's wonderful or you can be discharged and be in a terrible situation. It can be from delight to horror and --
Warren E. Burger: But you want to treat them all the same?
Harry R. Sachse: We want to apply the principle at that time in the military counts as time in the plant and figuring their entitlement to vacation when they come back but just when they come back. Thank you.
Warren E. Burger: Mr. Shoop.
Robert H. Shoop, Jr.: Mr. Chief Justice, may it please the Court. Initially, let me set forth to the Court the position of the Government at least when they tried the case in the District Court where I was there. The Government is seeking vacation for the year 1967 and 1968 under this chart that they have set forth. They are seeking 64 hours of vacation in 1967 and 72 hours of vacation in 1968 for Mr. Foster and as I have set forth in my brief, --
William H. Rehnquist: They're not still seeking that much, are they?
Robert H. Shoop, Jr.: The complaint in the initial case sought that much. I think they misunderstand vacation benefits as I pointed out on page 4 of my brief, Mr. Justice. A person earns their vacation in one year and they take it in their next year. Mr. Foster earned his vacation in 1966. He received it in March of 1967 when he went into the military service. He earns his vacation in 1969 and on January 1st of 1970, he's entitled to every cent of vacation that he would have earned in that last year. That is 69 (Voice Overlap) vacation. You take in 60.
Warren E. Burger: Last year, you mean precisely what, what period? You just used the phrase last year.
Robert H. Shoop, Jr.: Okay, between the year of 1966, between January 1st of 1966 and December 31st of 1966, Mr. Foster earned one weeks vacation, 56 hours. On January 1st of 1968, he was entitled to leave the employer Dravo and do whatever was necessary and he would have gotten that vacation. He could have gone on vacation that week as a lot of people do in the first of week of January or he could've waited later on in the year. Now, in the year of 1969, when he returned form the military service, he works that year and he earns his vacation which he is entitled to in full on January 1,1970. He again can take the pay and leave the employment of Dravo or he can take his vacation or he can take it some time later on. The -- and provided during that year of 1969 and provided during that year of 1966, he works 26 work weeks, I mean 25 work weeks, excuse me. He has to earn, have an earnings in those years before he can get the vacation the next year. You earn it in 1967, take it in 1968, earn it in '199 and take it in 1970.
William H. Rehnquist: Of course, one thing the Government contends as I understand it is that this is less like an earned vacation than it might be since the man who works 25 weeks and the man who works 50 weeks gets exactly the same amount of vacation.
Robert H. Shoop, Jr.: No.
William H. Rehnquist: That's not right?
Robert H. Shoop, Jr.: That is not correct. The man who works 25 weeks and the man who work 50 weeks are both entitled to a vacation. That's the difference. The man who works -- has worked for Dravo for 20 years is entitled to five weeks vacation under this contract in issue. The man who has worked for Dravo for five years is entitled to a different length of vacation.
William H. Rehnquist: Okay, but how about two guys of each work for Dravo five years. One who works 25 weeks and one who works 50 weeks, the preceding?
Robert H. Shoop, Jr.: They both would get the same vacation the next year. Now, Dravo however expects every employee to week regularly during the course of the year. We expect everybody to normally attend work whose on the payroll 50, 49 weeks. This provision is negotiated into a collective bargaining agreement by a union to protect people who for some reason may be ill during the course of the year. They say, “Gee! Look, here's a guy who's been ill for a month, why shouldn't he get a vacation? Here's a man who may have left for a couple of months for a leave of absence because his wife is ill, why shouldn't he get a vacation in the next year?” So therefore, the union comes to the company and says, “Let's make a man earn his vacation if he works 25 weeks.” The company expects anybody who is regularly on the payroll except for leaves of absence, except for illness to work 50 weeks, 49 weeks, what we all work during the course of the year and not examples like they try and bring out in these cases if the man could only work 25 hours or something like that. He'd be fired.
Potter Stewart: Well, is that true Mr. Shoop in your plants of business, it's not seasonal, is it?
Robert H. Shoop, Jr.: No sir.
Potter Stewart: No.
Robert H. Shoop, Jr.: Dravo is a shipbuilding corporation in Pittsburgh, Pennsylvania and business is pretty good, right.
Potter Stewart: And it's not a seasonal business.
Robert H. Shoop, Jr.: No, sir.
Potter Stewart: Could have been.
Robert H. Shoop, Jr.: Now, to answer some other questions that were raised in part of my argument, the question here is more than the $377.92 involved which are the vacation entitlements in 1967 and the vacation entitlements in 1968 which by the way Your Honors, in 1967, he became entitled to another days vacation. He would -- his vacation entitlement in 1967 is 64 hours. His vacation entitlement in 1968 is 72 hours. We recognized that when he got his vacation in 1970 and we gave him credit for his military service as far as the length of his vacation goes. That is not at issue here and we did recognize that. We're talking about the entitlement to a vacation. Now, let me point out the economic significance of finding the benefit as the Government would argue here. We are dealing with a statute that has no statute limitation. We're dealing with a statute that is only detriment to filing suit is the doctrine of laches. At least in Pennsylvania and as recognized by the Third Circuit, laches doesn't come into effect into a man who has unknown right. This statute has not been significantly amended since its enactment in 1940. So theoretically, you'll find for the Government every employee at Dravo who has been in the military service can file a suit to recover back vacation pay.
Warren E. Burger: Whether he returned or not return?
Robert H. Shoop, Jr.: Well, if he returned. Right. He would have to return. Moreover, the --
Potter Stewart: And that return within in a certain --
Robert H. Shoop, Jr.: 90 days, he has to return --
Potter Stewart: Within 90 days.
Robert H. Shoop, Jr.: -- within 90 days after his discharge from the selective service to be entitled to any reemployment benefit.
Potter Stewart: And if there's a -- if he's been in the military longer than a certain number of years, it's not applicable at all, is it?
Robert H. Shoop, Jr.: Yes, let me point that out. That was my next question and the Act does because a public policy to encourage enlistments in the military service also protect people who are enlisted, therefore, your question as to whether this is moot, although I would contend it isn't anyway of the laches argument. If people who do enlist are protected, they are protected, Mr. Justice Stewart for a period of four years.
Potter Stewart: That is if they've --
Robert H. Shoop, Jr.: If they enlist in the military service, they can stay in the military service for four years.
Potter Stewart: For up to four years.
Robert H. Shoop, Jr.: A fifth year, if they are requested by the Government to stay an extra year and this came up during the Cuban Missile Crisis is when they asked some people to stay in the service and they amended that statute of that time to increase up to five years upon request of the service. Now, let me give you an example of under the Government's theory what can happen. An employee from Dravo can enlist in the military service on January 1st of 1975. He can continue in the military service.
William J. Brennan, Jr.: Well what's the enlistment hitch now under the volunteer argument, three years or?
Robert H. Shoop, Jr.: I think it's still three years. It was the last time I heard but he can continue in the military service until December, in the middle of December of 1979. He can then, in 90 days, sometime in March of 1975, come back to work for Dravo. According to the Government, we could owe him anywhere between eight and 20 weeks vacation pay, the day he came back to work for us because he has met the requirements of the re-employment statute. I submit, Your Honors, the next day, he could quit and go to work for somebody else and there's nothing we could do about it. Moreover, you take their argument one other point, the lower courts accepting the decision like this could say hospitalization benefits, life insurance, how about vacation bonuses. Many companies pay a bonus for a vacation and taken at various times of the year. Is he entitled to this? According to the Government's theory, I think you can go as far as holding that it would include wages that for some reason maybe argued to appear a prerequisite of seniority.
Warren E. Burger: Now, when you speak of the vacation bonus, you mean that the practice of giving one day and a half for each day if you take it between January 1st and March 1st or something.
Robert H. Shoop, Jr.: My familiarity is we give him $30.00. Many companies give $50.00 to take a vacation between January 15th and March 1st. $40.00 to take a vacation in the next two months and nothing to take it during the summer and then going back up in the fall. Steel and Aluminum all have these type of bonus arrangements.
Warren E. Burger: Going back to your hypothetical case, is it your position under that the Government's theory would require you to take a man who work for 30 days for Dravo and then went into the service for four years and then came back. He might have built up this by attacking the military under the 30 days initial period. (Voice Overlap) He might have a month vacation?
Robert H. Shoop, Jr.: If the position he'd held in the 30 days was other than temporary and it's no holding that he was a -- that a probationary employee as other than temporary that was decided by the Fourth Circuit in Allen versus Weirton Steel, I believe in quite a number of years ago. So, probationary employee and other than temporary are not synonymous. However, if he was a summer employee who came to work for Dravo for the summer and wasn't going to come back in the fall, he entered the military. He would be what is known as a temporary employee under the term for the Act.
Lewis F. Powell, Jr.: Mr. Shoop, are you suggesting when you mentioned insurance benefits that if a veteran would die in service, he'd be entitled to participate in the company's group insurance program?
Robert H. Shoop, Jr.: He certainly wouldn't under any of the plants that I am familiar with but a logical extension of the Government's argue -- argument in this case would appear to me to hold that that's a possibility. You know, there's no earned, you know. My understanding of vacation benefits and my understanding of all these other benefits are they are earned benefits. They are benefits that you earn by working for Dravo. I think this Court has aptly pointed out that the vacation benefits between the time he left Dravo and between the time he came back were paid for by the Government. At this time, remark of counsel significantly higher, higher rate of two-and-a-half days per every months of service, he gets 30 days vacation the year, he only gets eight, seven at Dravo.
William H. Rehnquist: Of course, he gets not vacation from anyone in 19 -- between 19 -- in the year 1969.
Robert H. Shoop, Jr.: In the year 1969, he got no vacation time off but he earned vacation that was taken effective January 1st of 1970, or could've been taken at that time.
William H. Rehnquist: Which is like saying, he earned a vacation sometime in 1970 but he didn't get anything since 1969?
Robert H. Shoop, Jr.: He did not get any time off or he did not get any pay but he earned a vacation that he takes in 1970 and I think you will find that that's the way vacations are. You work for a period of time and then you get a vacation.
William H. Rehnquist: Well, sure. You always figure you're going to put in some rookie time or whatever you want to call it before you qualify but the Government's argument is I'm sure is that he shouldn't have to put it in when he comes to work and then when he first comes back from the service too.
Robert H. Shoop, Jr.: No sir, Your Honor. I submit that you have to put in time every year to get a vacation. On a year sir, you could take a year off and you wouldn't -- you would get vacation. That isn't true.
William H. Rehnquist: Well, he put in a year -- from January 1, 1968 to January 1, 1969, he put in presumably 39 weeks with the military and 13 weeks with Dravo but he got no vacation the following year.
Robert H. Shoop, Jr.: That's right. Also I stated before, this Act was enacted in 1940 and except to codify what was the escalator principle in Fishgold versus Sullivan Drydock, the Act has not significantly been amended.
Warren E. Burger: Let me back up to your statement about the 13 weeks at the end of 1969. Do I understand you to say that in the first week -- on the first day of January, he was then entitled to a vacation benefits deriving from the 13 weeks plus his prior service?
Robert H. Shoop, Jr.: No, sir. To qualify for a vacation in any one year, a regular employee must perform work for Dravo Corporation a period of 25 weeks.
Warren E. Burger: Well then, when -- at what point in 1970 would he get the benefit of the 13 weeks which he worked in 1969?
Robert H. Shoop, Jr.: He would never get the benefit of working those 13 weeks except for the fact that in length of vacation, it will be recognized that the entire year of 1968 would be -- I believe those 13 weeks were worked in 1968, Your Honor. That's between 1968 and 1969.
William H. Rehnquist: Didn't the Third Circuit say that that should be remanded to the District Court.
Robert H. Shoop, Jr.: Yes, sir.
William H. Rehnquist: That particular issue that the Chief Justice inquired about?
Robert H. Shoop, Jr.: The Government has at this time in their brief that wasn't reached an argument made an argument for a pro rata benefits. They say, “Well, at least, he's entitled the 13 25ths of a vacation. That issue was never raised at the trial level. As I submit in my brief. If Your Honor would look on page 24 of my brief in the appendix on page 10, what happened was the judge at the trial level, tried to effect the settlement between Dravo and the Government and he suggested this as being an issue maybe we could pro rate the vacation for 1968. I specifically stated to him on the record at that time that that was not the issue before this Court and he recognized it. That was not the issue before the District Court at that time, and the judge said, “Yes, I recognize it” but being a non-jury trial he was trying to settle it may have said a number of things in the record. I don't think he's one of us who believe, we are going to be here or I was going to be here today when we tried this case. But --
William H. Rehnquist: Well, if we affirm the judgment of the Third Circuit, the case would go back to the District Court and the employee would have a right to litigate at least as matter of contract law, whether he's entitled of pro rata vacation.
Robert H. Shoop, Jr.: The issue before the District Court would be one, was the matter raised and litigated there? And two, what is the outcome, or what decision would this Court make based on the law in the contract in issue? If you affirm the third -- that's exactly what the Third Circuit did, they sent it back to the District Court.
Byron R. White: But if you say, that although the Act doesn't require you to recognize that he's entitled to a vacation, you say that he works all of 1969, then in 1970, he's entitled to a vacation and you say you will -- the length of the vacation pay that he's entitled to, you say, will include the time he was in the military.
Robert H. Shoop, Jr.: Yes, sir.
Byron R. White: Well, the -- now, do you say the Act requires that?
Robert H. Shoop, Jr.: I would think so, sir.
Byron R. White: Because you must treat him as having been on the payroll.
Robert H. Shoop, Jr.: Because no. Because you treat him as seniority. He is in his relationship to other employees has five-year seniority. You look at your contract and you find that people with five-year seniority are entitled to “X” number of weeks vacation.
Byron R. White: Well that's only -- that's only if you work those -- that's only if you've been entitled to vacation during those periods.
Robert H. Shoop, Jr.: Not necessarily. I would -- that issue wasn't raised and I wholeheartedly agree with the company's actions in this case of giving the man his benefit in the military service towards the length of his vacation.
Lewis F. Powell, Jr.: Well, Mr. Shoop, what happens with an employee who does not go into the military service but who in 1967, whatever reason worked only 20 weeks, in 1968, worked only 15 weeks but then he comes to 1969, he works 52 weeks, how do you compute his vacation earned for 1970?
Robert H. Shoop, Jr.: Okay. He would receive no vacation benefits for the year 1967, that which he worked less than 25 work week. He would receive no vacation benefits for the year 1968, that which he worked less than 25 work weeks. He would receive vacation benefits in 1969 when he worked more than 25 work weeks which would be taken in 1970 and the length of his vacation I think is the question you're getting to would be treated just as if he had been an employee and on the role of the (Voice Overlap)
William J. Brennan, Jr.: Whether or not he earned any vacation.
Robert H. Shoop, Jr.: Whether or not he took it in the previous years, I think --
William J. Brennan, Jr.: Whether or not he earned it.
Robert H. Shoop, Jr.: Whether or not he earned it, right I think in those cases --
Potter Stewart: So that's pure seniority.
Robert H. Shoop, Jr.: That's pure seniority. The length of the vacation is pure seniority. The entitlement to a vacation of any given year is earned. You earn your vacation this year to take it next year. Let me just --
Harry A. Blackmun: Mr. Shoop, on remand, if you prevailed here, on remand, will you also have under consideration a pro rata for 1965?
Robert H. Shoop, Jr.: Well --
Harry A. Blackmun: Or is that --
Harry R. Sachse: No, 1965 there's no problem. We have under remand the argument of the nine weeks in 1967.
Harry A. Blackmun: Why not 1965 also?
Robert H. Shoop, Jr.: Because 1965, see that's where they missed the -- the Government isn't getting the -- he got his 1965 vacation in 1966. See, he worked 22 weeks in 1965 and he received 20 hours vacation in 1966.
Harry A. Blackmun: But why was he entitled to it, it was not 25 weeks, or is it just because he began work in that year?
Robert H. Shoop, Jr.: As Justice Stewart pointed out, the rookies -- and this is -- this is something that's negotiated in a contract to protect an employee who is coming on the payroll new.
Harry A. Blackmun: Okay.
Robert H. Shoop, Jr.: And he is entitled to some benefits at that period of time as a new employee but he's only entitled to one day. In this period of time, Mr. Foster in this case is entitled to over two weeks vacation when he returns that's why you wouldn't return as a rookie, you'd want to return as a -- as a veteran, so you can get that length of vacation better than you had before.
Warren E. Burger: In other words, the total length of his service from his first employment date down to 19 -- the beginning of 1970 is used to measure the amount of vacation but not to give him any dollars for the period he was in the military service?
Robert H. Shoop, Jr.: No sir, you earn your vacation each and every year.
Warren E. Burger: But your answer to my question is yes then, is it?
Robert H. Shoop, Jr.: Yes.
William J. Brennan, Jr.: I wonder Mr. Shoop, you said this was within the statute, this is related to seniority yet Section 2 says should be so restored in such manner as to give him such status in his employment as he would have enjoyed if it continued in such employment continuously from the time he was entering the armed forces to a time his restoration of such employment. Now, the hypothetical I gave you before of the chap who had not gone into service going to be 20 weeks or 15 weeks. I gather you're giving him the same status in his employment as that probable?
Robert H. Shoop, Jr.: As that probably do, yes sir.
William J. Brennan, Jr.: Because at least for purposes of a length of vacation he gets in 1970 that he earns in 1969, he's given credit for his time in service.
Robert H. Shoop, Jr.: Yes sir, right. The length of vacation, no problem. We're giving him all the credit and to point out further that a vacation is an earned benefit under the Dravo contract, I would point out that in Article IV, Section 3 as cited at my brief, a person at Dravo who works considerably more overtime as to say regularly six days a week receives more vacation than the person who doesn't work those hours. So, there is a relationship between the amount of time worked and the amount of vacation you get and that you get more vacation if you worked longer hours and more overtime. The two cases that were cited by the Government and relied on, I think, ought to be examined in some detail and the first was Accardi. What happened in the Accardi decision was the Pennsylvania Railroad attempted to abolish the position of firemen on new diesel tugs back in 1959. A strike ensued, the firemen went on strike. The intra-strike was finally settled in 1960 with an agreement that the position of firemen was abolished. However, they would remain on the payroll, those firemen who had 20 years or more seniority and they remained on the work force. The other part of the agreement paid severance pay to those employees who had less than 20 years seniority. The severance pay was paid on a theory of the number of years of compensated service you had with the Pennsylvania Railroad. The Pennsylvania Railroad being wrong again argued that this was an earned benefit. This Court correctly saw it wasn't. It couldn't be an earned benefit because the people who works severed would never ever get the benefit and everybody who was discharged got some benefit. The only thing they were arguing about was the amount of the benefit and that's exactly like our vacation policy. The amount is not in question. It is a prerequisite of seniority and the entire agreement was the severance pay. There was no full collective bargaining agreement and the Third Circuit in this case reviewed the entire contract and came to the conclusion that vacations at Dravo are an earned benefit. Eagar versus Magma Copper has also been referred to. It was a pre curiam decision. There was a dissent in that case written by Justice Douglas on behalf of you, Justice Stewart and the late Justice Harlan. In that case though, Eagar had worked the amount of time that was necessary to receive the benefit. He had worked 75% of the hours in the week before he entered the military service and the year before he entered the military service. The only thing was he wasn't on the payroll at the end of his first anniversary year and wasn't on the payroll on December 31st of the vacation of earning year. That's the only difference. He earned his, here, it has not been earned.
Potter Stewart: Well, but he didn't -- he didn't meet the conditions of the collective bargaining agreement.
Robert H. Shoop, Jr.: But he met --
Potter Stewart: No question to that.
Robert H. Shoop, Jr.: -- all the earnings requirements of the collective bargaining agreement. You take my position that vacations are an earned benefit that they are a payment or earnings deferred to compensation for working at the company. Eagar is entitled to it and anybody else that Dravo is entitled to it provided they have earned their vacation.
Potter Stewart: Well, you don't have the same agreement that was involved in the Eagar case, in the -- yes, Eagar case.
Robert H. Shoop, Jr.: No but I got this similar agreement. In my case, you have to work 25 work weeks, in his, you have to work 75% percent of the work week.
Potter Stewart: Plus be on the payroll at the end of the year.
Robert H. Shoop, Jr.: I would say, my position on those if we have those in these collective bargaining agreements that those are seniority provisions.
Potter Stewart: Well, it's easy position for you to take now.
Robert H. Shoop, Jr.: Yes, sir.
Potter Stewart: Since you don't have that in your agreement.
Robert H. Shoop, Jr.: Yes, sir. My law school professor, however, told me that a dissent of three justices in the Supreme Court is better than nothing at all and so therefore, I would ask for your consideration to -- [Laughter Attempt] of your dissent in that opinion which goes further by the way than I intend to ask this Court -- than I have asked this Court to go today. As I stated before, Dravo expects every employer, every employee to perform a work of 50 weeks. The judges and justices who in their judicial opinions have thoroughly considered the issue of vacation entitlement have all determined that vacation entitlement does not automatically accrue as a result of seniority but are earned benefits as found by this Court, as far back as 1948, Judge Learned Hand in Dwyer v. Crosby cited in my brief held this. Judge Hufstedler in Austin versus Sears and Roebuck in 1974 held this. Judge Hill in Kasmeier in the Tenth Circuit held this. Judge Adams in the Third Circuit held this. Judge Batten dissenting in Locaynia in the Ninth Circuit held this. These gentlemen had all reviewed thoroughly the collective bargaining agreements in issue. The facts of both Accardi and Eagar and found as well as Justice Douglas, Justice Stewart and Justice Harlan that vacation benefits are an earned benefit that you must meet that earnings requirement, in this case of 25 weeks to be entitled in that year or the next year to a vacation. Thank you.
Warren E. Burger: Thank you gentlemen. The case is submitted.


Earl Warren: The Honorable James B. Parsons, judge of the United States District Court for the Northern District of Illinois, Petitioner, versus the Chesapeake and Ohio Railroad Company. Mr. Naughton.
John J. Naughton: Mr. Chief Justice, may it please the Court. This case involves the issuance of a writ of mandamus by the Court of Appeals for the Seventh Circuit directing the petitioner, a United States District Judge, to transfer a cause of action arising under the Federal Employers' Liability Act to the Western District of Michigan, the Southern Division, sitting in Grand Rapids, Michigan. Previous to the ruling by the petitioner, denying a motion to transfer made under Section 1404 (a) of the Judicial Code, the same case had been brought before the Circuit Court of Cook County. There, the plaintiff's cause of action was dismissed by that Court on the ground of forum non conveniens. A decision below issued the writ of mandamus on two grounds, on the grounds of full faith and credit as stated in Section 1738 of the Judicial Code and on its finding that the plaintiff was estopped by the previous ruling under a so-called estoppel by verdict. Arguing on behalf of the petitioner here, I would contend that the decision of the court below is clearly incorrect in that the question is not a question of the statutory provision of full faith and credit creating any rights in the respondent here to have a particular ruling when it makes a motion under a federal provision. I would also contend today that there's an inter relationship between the acts involved herein that is Section 1404 (a), Section 1738 and Section 6 of the Federal Employers' Liability Act. The case arose when an employee of the respondent by the name of Jack Filbrun was injured while attempting to release a hand break on a car in the respondent's yard at Ludington, Michigan. He states that when he attempted to release this hand break, it suddenly quickly released causing him to fall from the car where he was caught by his conductor and was injured. Subsequent, that injury occurred on the 15th of July in 1960, subsequent to that injury, he went to a Dr. Serb who was indentified in the record as a company doctor. He was placed in a hospital and he was told by that doctor that there was nothing to matter with him. He went to other doctors. One of the doctors, a Dr. Boelkins was a specialist to whom he was referred by the company. Some of the other doctors were doctors of his own choosing. They --
Potter Stewart: These all the doctors are in or around at Ludington or in Michigan?
John J. Naughton: Almost all were in Ludington, Dr. Boelkins was in Grand Rapids, Michigan.
Potter Stewart: How far is Ludington to Grand Rapids, about 40 or 50 miles?
John J. Naughton: 60 miles.
Potter Stewart: 60 miles.
John J. Naughton: The situation came according to his affidavit, which is contained at pages 72 to 74 of the record that his physical situation was such that he was getting no relief, the company had a promised him a specialist. He was not getting a specialist. So at that time, he decided to go to his union attorneys in Chicago, seeking there basically medical help and as well legal help. Now some points, it has been raised in the -- a brief respondent here that I am associated with the firm that represents Mr. Filbrun and that is correct. I am also here by virtue of appointment by his Honor Judge Parsons. In representing Judge Parsons here, I don't want to deceive the Court that I don't have a -- a special interest in this particular case being associated with the plaintiff's attorneys but the basic representation I would submit here by me is on behalf of Judge Parsons in advancing his ideas as to the judgment below issuing a writ of mandamus. The plaintiff when he came to Chicago was eventually placed under the care of Dr. Raven at the -- his attorney's reference. The plaintiff was then hospitalized in Chicago for conservative treatment complaining of back condition. After several weeks in the hospital, he was released, he was still complaining of it. He was placed back in the hospital, a myelogram was performed and it was discovered that he had a disc by virtue of that myelogram. He was then operated on and on the operation, disc -- herniated disc was found between the fifth lumbar and the second and this disc was herniated to such an extent that was encroaching on the spinal cord. Now, that was removed, a spinal fusion was performed and he was under the care and treatment of Dr. Raven succeeding that operation. Now, all of these facts here, I would think on first impression were not encompassed by the granting of the writ of certiorari by this Court. However, in its brief, respondent contends that alternatively the court below ruled that the petitioner had abused his discretion in denying the motion of transfer. The only basis for that language is contained in the opinion of the Court in the last paragraph thereof at pages -- at page 87 in which the Court states referring to the previous reasons, these reasons are sufficient upon which the grant for issuance of the writ requested, the transfer of this case to the Federal District Court 60 miles from plaintiff's home, the scene of his accident all combined to establish that justice would there be accomplished. Now, I would suggest that that is not a square holding that the petitioner abused his discretion. The dissent specifically finds that the petitioner did not abuse his discretion. The opinion from which we are now arguing this case is the second opinion on this case. Previous to that, there was an opinion by which the petition for writ of -- of mandamus was denied. The dissenting opinion was the majority opinion at that time and there was a concurring opinion by retired Circuit Judge Major in which he states that he agrees with the now dissenting opinion that there had been no abuse of discretion. Under all of these circumstances, I would submit that there is no question of an abuse of discretion in this case.
Arthur J. Goldberg: Mr. Naughton, do you agree with this possible (Inaudible)?
John J. Naughton: Yes Your Honor, I would -- based on the -- on the Interlocutory Appeals Act, I would think that it could've been certified by the petitioner here of Judge Parsons and could've been --
Arthur J. Goldberg: (Inaudible)
John J. Naughton: They did not request that.
Arthur J. Goldberg: (Inaudible) is that correct?
John J. Naughton: Yes Your Honor.
Potter Stewart: It should have required a certification though on your view by the District Judge, is it not?
John J. Naughton: Yes, I would think that Judge Parsons in his case would have certified the matter under the Interlocutory Appeals Act if that request had been made. That was not made.
William J. Brennan, Jr.: But would the state court transfer (Voice Overlap) --
John J. Naughton: Mr. Justice Brennan?
William J. Brennan, Jr.: But could the state court transfer order in contrast appealable for like --
John J. Naughton: Yes.
William J. Brennan, Jr.: -- state of appellant court?
John J. Naughton: That was appealable. It takes me into probably the first statement I should make in discussing the law applicable here. The -- the case seems to me involves the -- the effect of a decision of a court deciding a motion to dismiss on the grounds of forum non conveniens and I would suggest that --
William J. Brennan, Jr.: The state court decision was a dismissable, was it?
John J. Naughton: Yes, it was Your Honor.
William J. Brennan, Jr.: It's not a transfer of course. It was outright dismissal.
John J. Naughton: It was outright dismissal. That is the only power it would have on that particular motion.
William J. Brennan, Jr.: Yes.
John J. Naughton: Now, such a decision it seems to me involves elements of discretion and of matters that are peculiar to the Court deciding the motion which are so sui generis that I would not think they should be the basis of a -- of the doctrine of res judicata or of estoppel by verdict in the later proceedings. And as to that, I would suggest that the respondent itself states in its brief and in quoting the doctrines of res judicata and estoppel by verdict at page 7 thereof talking about one of the commentators' comments, a professor query that this is a matter of fact a practical decision as to what a res judicata or estoppel by verdict applies and it seems to me that the dissent below is a very practical dissent. It states that the majority opinion has confused the material issues with the material facts. Now, respondent seeks to avoid that type of ruling below or that type of consideration by this Court here by stating that the plaintiff's residence in Ludington, Michigan is a mere happenstance, but that is not a happenstance. That is part and parcel of the remedy provided in Section 1404 (a). You cannot say that when a plaintiff lives in Ludington, Michigan, he should be treated identically to a plaintiff who lives in Grand Rapids, Michigan. The Congress specifically set up the convenience of the parties, the convenience of the witnesses and the interest of justice and it intended that the Federal District Judge who have an individual right to determine those matters in the particular proceeding.
William J. Brennan, Jr.: How far is Ludington from Grand Rapids?
John J. Naughton: 60 miles Your Honor. Now, the -- what drawn in concurring opinion stated that there was a different results in the District Court, that is a transfer rather than a dismissal. Now, we make no point of that here on behalf of the petitioner. We do make a point that the ruling below and the contention of the respondent here seems to imply that the United States District Court for the Northern District of Illinois, Eastern Division sitting in Chicago, Illinois and also by virtue of other division sitting in Freeport and Peoria, Illinois is the same as a court sitting in Cook County, Illinois, and we would contend that it is no such thing. Moreover, the statutes of the United States permit subpoenas to be issued out of District Courts beyond state limits to the extent of a hundred miles from the place where the Court sits. And for that reason, it can be seen that a District Court is not an Illinois Court that it is in fact an Illinois Court, an Indiana Court and a Wisconsin Court and an Iowa Court in certain instances. The confusion of the opinion below is such that it would seem to bring into a play in this case the decision of Angel versus Boeing, which is a decision based in a diversity case. The reason I say that the opinion below brings this case into our case is because the Circuit Judge in rendering his opinion to pay some particular attention to the fact that the Circuit Court of Cook County and the United States District Court or courts of concurrent jurisdiction under the Federal Employers' Liability Act. That is under Section 6 of the Federal Employers' Liability Act, a -- a plaintiff has a cause of action may sue in either a state court or a federal court is given that choice of forum and that's a very valuable choice of forum given to him. The Circuit Judge Schnackenberg says that his ruling, and I quote from page 86, a one sentence after the full faith and credit determination, "This especially true because if it's a court of concurrent jurisdiction in administering the Federal Employers' Liability Act as provided in that Act. "Now, with all due difference to the court below, that ruling is not true. That is taking a valuable right given to a plaintiff and interpreting it so that it becomes no right at all, so that it is actually a sword turned inwards and diminishing the plaintiff's rights. Now, the second question cited below was the estoppel by verdict. I would say as to that, the nature of the decision below is such that there is no finality in the matter and I think that basically, the court below again is confused itself. It is saying that a decision on a motion for forum non conveniens is a decision on a fact. It's a decision such as would be involved in saying that a particular piece of paper was a deed of the transfer property to (Inaudible). That is not what is involved here. I think that looking at the standards, considering the -- maybe this nature of the standards, the individual characteristics of each District Judge and the discretion vested in each judge to decide these questions, we must say that there's a certain amount of weighing and balancing here as Mr. -- Circuit Judge Frank said in the Ford Motor Company decision and that -- well, we say that these are determinations of facts we only confuse ourselves. These are not determinations of facts. These are matters of -- of particular way of looking at deadlocks.
Potter Stewart: Does state court make any findings of fact?
John J. Naughton: No, Your Honor. The state court ruling is --
Potter Stewart: Simply an order of dismissal?
John J. Naughton: Simply an order, which can be said to make a finding of fact that it was an inconvenient inappropriate forum, the majority opinion does so find.
Potter Stewart: But there were no explicit findings were there?
John J. Naughton: There were no explicit findings.
Potter Stewart: Of fact? Under Illinois law, is this matter addressed to the -- basically, to the discretion of the Highest Court?
John J. Naughton: That's the Cotton versus L. & N. R. R. case cited in the both party's briefs.
Potter Stewart: And there is as I understand it an additional -- in Illinois law an additional consideration which the Court has required to consider that as when the action was brought to harass or vex the railroad?
John J. Naughton: Purely vex and harass the railroad.
Potter Stewart: Is that --
John J. Naughton: That is the standard.
Potter Stewart: That's the only standard?
John J. Naughton: That is the only standard.
Potter Stewart: The Court of Appeals here says that that's a -- that the Illinois Court has all the federal standards plus that standard.
John J. Naughton: Well, that is a --
Potter Stewart: Maybe I misread the Court of Appeals opinion.
John J. Naughton: That's what the Court of Appeals says. I don't think that's accurate, no. I wouldn't dispute the result and I would dispute the -- their way of writing and what the Supreme Court of Illinois had said the question is purely a question of vexation and harassment. Now, once that consider -- consideration is a consideration, the question is how does the Court ever get to that determination? I think by getting to that determination, they do consider some of the same issues that is the convenience of the parties, the convenience of the witnesses and what they think were the interest of justice. I think, for example, they consider the fact that they have a seven-year backlog and it's part of the determination as -- and compare it with the alternative course which of course when the Circuit Court had the matter before it was a state court at Ludington, Michigan whereas as the dissent says when the matter came up before the petitioner, the only court that he could consider was the United States District Court of Grand Rapids which has no connection with the -- the litigation with the single exception that Doctor Boelkins is resident there. The --
Potter Stewart: The plaintiff was a resident there, isn't it?
John J. Naughton: The plaintiff was a resident at Ludington --
Potter Stewart: Yes.
John J. Naughton: -- where there is a state court.
Potter Stewart: In the district -- in the district?
John J. Naughton: It is in the district, yes.
Potter Stewart: -- district of Michigan and the accident happened there?
John J. Naughton: The accident happened there. The accident happened on a Canadian National Box Car, which is probably in -- in Canada at the present time. There's been some mentioned on the view of the premises would be helpful. I don't see how that would be in this particular case and petitioner decided that it would not under these circumstances. The matter of commuting between Ludington and Grand Rapids is a matter, which would take some time away from the various witnesses.
Potter Stewart: Do you quarrel with the -- do you question the -- do you question the availability of a writ of mandamus in appropriate circumstances and --
John J. Naughton: Yes.
Potter Stewart: -- of course you know, you do question that?
John J. Naughton: Yes sir.
Potter Stewart: At all?
John J. Naughton: The writ of mandamus and the 1404 (a), yes, sir.
Potter Stewart: You do?
John J. Naughton: I do it on two bases, one that I think an interlocutory appeal was the proper method of questioning it and two, I think that this type of discretionary orders are not such -- it create extraordinary circumstances that writs of mandamus should be considered by Courts of Appeal.
Potter Stewart: Haven't the Courts of Appeals rather generally said that mandamus is available I -- and apply different standards as to when the mandamus will be granted?
John J. Naughton: I would say there's a conflict in the circuits of course.
Potter Stewart: As to even the availability of this? One -- one or two of --
John J. Naughton: Respondent check -- cites one of the cases, which says that it is not available.
Potter Stewart: I think one or two of them, the Second Circuit for instance that made a distinction saying it's available if the transfer is denied but not available if it's granted or vice versa, are you (Inaudible) with that?
John J. Naughton: Yes, sir. There is such a doctrine, which again is a diminishment of the plaintiff's rights under the Federal Employers' Liability Act.
Byron R. White: Would you -- would you concede that if the state court had considered the same facts, say there was a state rules, the federal rules on transfer to say and it had been determined against you in the state court, then would the federal court be bound by these state court's determinations?
John J. Naughton: I would say no on that -- on the basis, that full faith and credit and estoppel by verdict do not apply. However, I would say that in those circumstances if the question should arise, one of the petitioner --
Byron R. White: You would think the District Court would have the absolute obligation of retrying the whole matter and coming to its own conclusion on the motion to transfer?Is there identical rule?
John J. Naughton: Well --
Byron R. White: Is there identical rule?
John J. Naughton: -- I would say that the District Court probably as a matter of comity would recognize the -- the almost identical determination.
Byron R. White: Would you -- even though he might come out -- he might have come out himself to a different conclusion?
John J. Naughton: It's -- I don't see how the fact that a District Court has had a -- has a case which has a previous state ruling and it can evade this responsibility.
Byron R. White: From the identical -- from the identical question would the identical standards applied?
John J. Naughton: I would still say that he would not be bound absolutely by that.
Byron R. White: No, no estoppel -- no full faith and credit, there was nothing applies to this?
John J. Naughton: Well, even in such circumstances, the -- these standards are crystal clear. They are matters for the individual judge. I don't see why anyone should determine that a district judge with federal statutory standards before him cannot examine those standards.
William J. Brennan, Jr.: Well, Mr. Naughton, you might -- might you have voluntarily dismiss that state court action and then brought this in the District Court?
John J. Naughton: Yes, sir.
William J. Brennan, Jr.: And I gather that --
John J. Naughton: That's the -- that's a counsel for the plaintiff.
William J. Brennan, Jr.: That's what I mean. As I gather what you're saying to us is that since that's the right of the plaintiff under FELA, there can't be anything res judicata about what the state court has done on a motion to transfer on forum non conveniens beyond perhaps giving some consideration of what the state court did because the issue arose in the state court?
John J. Naughton: Yes, I would say this is the usual rule. I have here from Volume 2 on -- by into Freeman on Judgments at page 1582 of the statement that judgment is merely a dismissal whether voluntary or involuntary are not on the merits. They do not operate as a bar or as a --
William J. Brennan, Jr.: Well, I was going a little (Voice Overlap) --
John J. Naughton: -- subsequent proceedings. Now, that is the general --
William J. Brennan, Jr.: I was going a little beyond that. I was wondering whether you were relying on the fact that under the FELA, the claimant may go in -- either into the state or federal court, and you suggest that the fact goes in one does as far as dismissing that action and then going in the other case.
John J. Naughton: That's correct.
William J. Brennan, Jr.: And it's because --
John J. Naughton: It would so Your Honor.
William J. Brennan, Jr.: And because you ought to flow from that is that he's not bound by anything that happens necessarily short of a decision on the merits of his claim.
John J. Naughton: Yes. That is the only decision --
William J. Brennan, Jr.: (Inaudible)
John J. Naughton: That is the only decision we would submit that by which it should be bound as a decision on the merits or decision extending estoppel by verdict to questions of fact determined not questions of -- really, what our value judgment should not determine these rights in the second forum. Now, the actual motion made on the case here was made by the respondent, Railroad, and it was a motion addressed to 1404 (a) and it was also a motion of which -- on the first motion, it was stated that the doctrine of res judicata apply and clearly it does not apply in this case though respondent is still contending res judicata does apply. The matter was denied. Subsequently, an answer was filed by the respondent denying on information and relief, the failure of the handbrake to function as properly. Then a petition for a rehearing was made by the respondent, and it was that that petition for rehearing that the respondent first raise the questions of full faith and credit. Now, it seems to -- the petitioner here, and what the court below did was to state that 1738 in setting out the provisions of full faith and credit created a situation where something more than res judicata and something more than a estoppel by judgment would be applied by the District Court. The opinion below seems to indicate that full faith and credit on its own creates situations where federal courts have to give extreme difference to previous rulings for state courts. I would submit on the basis of the opinion by Mr. Justice Holmes in Remington versus Central Potomac Railroad Company that those sort of rulings are not correct that this is by the rule of practice, it should be given comity but the state court decision should not be given absolute vitality and require to disregard the federal standard.
Earl Warren: Mr. O'Laughlin.
Charles J. O'Laughlin: Mr. Chief Justice, may it please the Court. I suppose that there are three different phases of this argument that I should address myself to. In the first, did the District Court give the proper recognition to the judgment of the Circuit Court of Cook County dismissing the case under forum non conveniens? Secondly, did the District Court properly determine that transfer to the Western District of Michigan was not in the language of the statute for the convenience of the parties and the witnesses and the interests of justice? And thirdly, if either of those two questions should be answered in the negative, was mandamus a proper remedy? Now, what was the judgment of the Circuit Court of Cook County? The Circuit Court of Cook County determined that under the doctrine of forum non conveniens, under the common law of doctrine of forum non conveniens, the trial of this case in Cook County was inappropriate and inconvenient. Now, along with the common law doctrine, the Illinois state courts seem to hold or seem to require based upon this Cotton case, a -- a requirement must be present that an addition to be inconvenient and inappropriate, the trial court must find that the plaintiff acted with a motive to vex and harass the railroad. The Circuit Court of Cook County did dismiss the case. While there is no finding of fact, the judgment of the Court being a mere judgment of dismissal under Illinois law, the grounds for the judgment can be examined. And we find this to be the fact that the Court dismissed the action based upon the same allegations, the same affidavits that were present before the United States District Judge. To support its motion, the Railroad showed that there were five occurrence witnesses and six doctors all of whom resided in and about Ludington, Michigan, two doctors being in Grand Rapids. The Court found that the case should be dismissed. Now, instead of going to the convenient forum Ludington, the plaintiff walked down the streets about two blocks and filed suit in the United States District Court.
Arthur J. Goldberg: (Inaudible)
Charles J. O'Laughlin: Yes, but I would say that certainly it would be a no rule in Illinois that a case could be dismissed under forum non conveniens, on a pure showing of vexation. You must build a vexation on the -- on the foundation that is that there is inconvenience in presenting testimony. In the Cotton case, the accident as I recall happened in Kentucky and the trial was in East St. Luis and there was an allegation that the -- in the motion to dismiss under forum non conveniens that the plaintiff could not get -- or the defendant could not produce the medical evidence just as there was here. On the trial, the -- and this was how the case was reviewed, the evidence showed there -- there was -- but one doctor who testified and he spent less than a day and the Court found that there was no inconvenience and seemed to imply that there should be vexation. Now, there has been -- there have been other forum non conveniens’ decisions in Illinois, but none of them on FELA cases. Now, I don't think that there is any differentiation when the case reaches the District Court whether it's an estoppel by verdict, collateral estoppel, res judicata, full faith and credit or what. Simply, we urge that the determination by the Circuit Court of Cook County foreclosed was a matter decided between the parties.
William J. Brennan, Jr.: Well, Mr. O'Laughlin, I gather you didn't take the position that the plaintiff, the FELA plaintiff could not go down the street two blocks and file his lawsuit there, did you?
Charles J. O'Laughlin: Well, Your Honor -- and I address myself to the same question that you ask the counsel here.
William J. Brennan, Jr.: Yes.
Charles J. O'Laughlin: Of course, the plaintiff could sue where -- where he could get jurisdiction of the railroad. He could do it until there was an adjudication. He could take a voluntary non-suit and start as many times as he chose, but once there was an adjudication, once there was a judgment, once the Court had acted, then something new has happened between the parties.
William J. Brennan, Jr.: Well, what I want to get clear was, there was nothing about the state court proceeding which barred him from bringing his federal court suit two blocks down the street. You had to invoke the transfer rule I gather, didn't you?
Charles J. O'Laughlin: Yes, Your Honor.
William J. Brennan, Jr.: The federal transfer rule in order to defeat the trial of this case in the district where he brought it.
Charles J. O'Laughlin: Yes. If we have not so moved Your Honor, there would have been no jurisdictional prohibition if that is Your Honor's question.
William J. Brennan, Jr.: That's what I'm trying to get here.
Charles J. O'Laughlin: No, I would suppose that there was no adjudication on the -- on the merits. Now, while I'm on that, I might say this, that counsel has cited a number of cases in which the question was reexamined and -- but if you examine each one of them, you'll find that there was no final judgment so that the -- there was a defect which was not present here. In other words, if the state court had not made a final judgment, if the case had been submitted and a voluntary dismissal made, then of course there would be no prohibition at all, but the judgment of the Circuit Court of Cook County was a final appealable judgment and therefore, it was res judicata, estoppel by verdict, collateral estoppel, when they -- that matter was brought before the District Court.
William J. Brennan, Jr.: It may not be relevant Mr. O'Laughlin but might the Railroad -- might jurisdiction of an action against the Railroad had been obtained in a Federal District Court actually in Grand Rapids?
Charles J. O'Laughlin: Oh yes, that was clearly a place where the action might have been brought within the language of 1404 (a). I -- I take it that there is a comparatively little argument made or even -- the argument is not even particularly addressed to that trial in Grand Rapids was for the convenience of the parties and the witnesses. There was, but one witness in Illinois and that after the injured man had retained counsel. A simple 1101 arithmetic indicates the convenience of the parties and the witnesses and I would say here that there is and will be a serious issue as to the extent of this man's injury. Six doctors concluded that he was not injured and one found that he was and operated on him. These men will be called upon by the Railroad to testify. Were the trial to take place in Cook County, the railroad would be deprived of the in-person evidence of these witnesses. Justice would be -- it would be in the interest of justice that this testimony be available to the railroad. Transfer to Grand Rapids would make that available. It is, therefore, my conclusion and I believe that the United States Court of Appeals for the Seventh Circuit agreed that failing to transfer based upon that record was a gross abuse of discretion. Now, counsel has pointed to the opinion and says this is not a square holding. The petition for writ of mandamus claimed that the judgment of the District Court was an abuse of discretion as well as claiming our rights under the full faith and credit statute. The Court ruled upon it and under familiar rules, its judgment can be supported both on the grounds of the full faith and credit statute and under the abuse of discretion provision. I think that the Court did find that it was an abuse of discretion. Of course, the Court was more -- merely acted interested in the collateral estoppel argument. If we concede that there is grounds to claim that there was error in the District Court, I would like to address myself to the argument that mandamus was an appropriate remedy. I believe Mr. Justice Stewart asked the counsel if in his judgment he believed that the interlocutory appeal statute was available here. The interlocutory appeal statutes requires a finding in the order that a controlling principle of law is involved and a finding that the ultimate disposition of a case will be advanced. There was no such finding in the order. True, none was requested, but as it stood, there was no way when that order was entered that it could have been appealed under that -- under that provision of the statute, but I would say even further an interlocutory appeal here would not be any different, the -- the posture of the case would be no different. It would be exactly the same as it would be under the writ of mandamus proceedings.
Arthur J. Goldberg: Do you discount the fact that (Inaudible)?
Charles J. O'Laughlin: I do not discount that Your Honor. I -- traditionally, mandamus is an extraordinary remedy.
Arthur J. Goldberg: Was there a fact that writ of mandamus (Inaudible), is that correct?
Charles J. O'Laughlin: Well, I would just to say it is to answer it. I do not believe this ordinary remedy is readily available.
Arthur J. Goldberg: Then do you assume (Inaudible) that this writ of mandamus is not (Inaudible)?
Charles J. O'Laughlin: The reason we did not do so -- seek this, of course, it was found in the first requirement. That is that there is a controlling principle of law.
Speaker: Control on the litigation?
Charles J. O'Laughlin: Yes.
Speaker: On the final (Voice Overlap) --
Charles J. O'Laughlin: Yes. And I -- and it was our judgment that this was not a controlling principle of law. This was a -- a very un-controlling principle of law. True on this particular issue, it was controlling, but I read that and as being controlling on the -- on the matter of adjudication before the Court, I can see that to be some new noble principle of law with which the Court is concerned in the interpretation of the case that it might conceivably wish the ruling of the reviewing court prior to the taking of testimony and -- and involving itself at great length. But on the issue -- issue of the mandamus itself, under the All Writs Act, I believe that it has everywhere been considered that the Court of Appeals does have the power. It's not a question of power. And the cases that had been here, I don't think anyone has urged that the Court under proper circumstances could issue a writ of mandamus. We, therefore past as to whether writ of mandamus is proper in this type of case. To a degree of course, this is a matter of policy. I think that the holding of this Court in La Buy versus Howse is most persuasive. In that case, Judge La Buy had transferred a case to a master court hearing. A petition for writ of mandamus was filed in the Seventh Circuit Court of Appeals and it issued. And this Court affirmed even though the propriety of the issuance of the writ was strongly challenged. This Court twice has held that a jury demand should be recognized and mandamused, the trial court twice to preserve that remedy even though in both cases, the Courts of Appeal had not acted on the petition for writ of mandamus, in other words, they had denied the writ. Yet this Court felt that the control of the process of litigation, the jury demand in the two instances was proper. I would say this that particularly under 1404 (a) cases, if the respondent is ever to have a remedy, it must be by way of mandamus. If it goes to trial, the inconvenience and the lack of justice has been suffered and then the respondent, defendant, is in the position of trying to show prejudicial error and it's difficult if not impossible to point to one specific thing and say, prejudicial error has been suffered by the failure to transfer it. It can always be claimed that the evidence of doctors being presented by way of deposition adequately -- was adequate in the defense of the case. Every trial lawyer faced with convincing the jury knows that depositions are not a persuasive way of presenting key evidence. The cost has been incurred so that the remedy if we are going to have it appealable at all must be undertaken prior to the time the trial was held. I think that proper administration of justice indicates that in proper cases, the Courts of Appeal should issue the writ. Now, I do recognize that there is at least one decision and I believe it's cited in the brief of the Court of Appeals, I believe in Tenth Circuit holds that even though there was a proper case and abuse of discretion, the writ should not issue. Most of the other circuits have taken the other view and I think in proper administration of justice that should be the view of this Court. In conclusion, I would like to say --
Potter Stewart: If -- as you implicitly concede and have been held this for the trial judge is ultimately a matter of his discretion, doesn't that by definition almost exclude any kind -- any idea of res judicata if it's purely discretionary one way or the other?
Charles J. O'Laughlin: I think that we -- we sometimes overlook what we really mean by discretion. This isn't the -- a wild whim of a judge. It's a -- it's a consideration of the relevant factors between the parties and it's in a forum discretion. It was adjudicated by the Circuit Court of Cook County relying upon the same factors, which the District Judge must take into consideration. Now, you may – I may argue a theoretical difference that the subpoena power of the District Court might cross the state lines but in this case, that is only a theoretical difference. It has no relevance to the case at bar.
Potter Stewart: Well now, it might also the differences in the calendar congestion in the Cook County Courts as compared to the federal courts. Again, that might be theoretical in this case?
Charles J. O'Laughlin: I think that the Illinois courts particularly and perhaps they -- they should recognize that, but in the same Cotton case, the -- the Court held that the inconvenience of the litigation was tribute on the court system. In other words, this was not a factor. One case among 60,000-70,000 was not a factor, which the trial court should take into consideration and that was not urged in this particular case. In other words, the congestion of the calendar in Cook County was not one of the factors relied upon by the Railroad for a dismissal of -- under forum non conveniens. So I would say, --
Potter Stewart: It's a congested calendar in the long run that worked to the advantage of the defendant?
Charles J. O'Laughlin: In theory, but in practice I would say not. I know that's traditionally supposed to be a defendant's gamut but to defend the case, you need fresh evidence.
Potter Stewart: Yes, yes.
Charles J. O'Laughlin: I think that congestion hurts both parties.
Potter Stewart: And impeach justice and --
Charles J. O'Laughlin: Impeach justice.
Potter Stewart: -- by a very well party, you're probably right. But as a matter of fact what is the comparative congestion between the Cook County Courts and the District Court here in Chicago, in civil cases the District --
Charles J. O'Laughlin: The last civil case that I've tried in Cook County with a jury demand was seven years old. I think that the District Court's judges in the Northern District of Illinois each maintain its own calendar.
Potter Stewart: Yes.
Charles J. O'Laughlin: And I think that the time of trial runs from about a year to maybe two years that they're reached in rotation and tried when ready.
Potter Stewart: In civil jury cases?
Charles J. O'Laughlin: In civil jury cases. However, I'll be very frank to admit that if you were really desirous of a very expeditious trial in the federal courts, I know of no judge that wouldn't accommodate you. In the same token, if there is a recognized advancement system in the Circuit --
Potter Stewart: I remember that, in the Cook County Court.
Charles J. O'Laughlin: Cook County Circuit Court.
Potter Stewart: But I think if you use that too liberally well, I'm not sure right back where you started.
Charles J. O'Laughlin: And that has worked out just to the fashion. The -- but it’s suffice for this case that the tribunal itself has not made a factor in forum non conveniens either under Section 1404 (a) or in the state court. I would, therefore, conclude by saying that the Circuit Court of Cook County adjudicated that Cook County was an inconvenient and inappropriate place to try this case. I think that the District Court should've concluded that a trial in the Western District of Michigan was in -- for the convenience of the parties and the witnesses and the interest of justice. I think that the District Court should've afforded full faith and credit to the judgment of the state court. I think that by walking down the street two blocks, the plaintiff was trifling with the judgment of the Circuit Court of Cook County.
Charles J. O'Laughlin: Mr. Naughton.
John J. Naughton: Mr. Chief Justice, may it please the Court. In rebuttal, I would merely state that respondent below in its motion in the Circuit Court complained of the crowded dockets of the Court at page 13 of the record. It also --
Earl Warren: Oh, the docket of the District Court?
John J. Naughton: Of the Circuit Court of Cook County Your Honor.
Earl Warren: Oh, I'm sorry.
John J. Naughton: I would also state that at page 46 of the record, he complained of the crowded dockets of the United States District Court. The ruling below seems to imply that the plaintiff was required to appeal the judgment of the Circuit Court. Such an appeal can only be taken on the basis that the Circuit Court Judge abused his discretion. If the plaintiff had lost that appeal, he would not have been at any nearer -- a resolution of his underlying cause of action. In the instant case, mandamus has been issued. The United States District Judge has had to give attention to this matter. Some of the United States District Judges in our Circuit have even appeared personally before the Courts of Appeals to argue these mandamus action. There is a remedy available under the Interlocutory Appeals Act and I suggest that it is not a very good procedure in the administration of justice to require the District Judge to give attention to these mandamus actions that the interlocutory appeals between the parties is a much better way of solving any problem created --
Potter Stewart: That statute wouldn't apply -- well, it might arguably apply in this case where the question was a res judicata controlling question of law. It wouldn't apply, would it, in a case where the judge's action in transferring or refusal to transfer a case under 1404 was thought by the losing party to be simply a flagrant abuse of discretion especially by these terms would not apply, wouldn't it?
John J. Naughton: As I understand that Mr. O'Laughlin is wrong, this case would not be in the same posture. No question of abuse of discretion wouldn't be involved under the Interlocutory Appeals Act, but we would submit that these questions are matters of judgment and that the Courts of Appeal should not consistently grant these motions. These writs may have been necessary when 1404 (a) was a new statute, it's been construed by many courts at the present time, I think that the issuance of such writs and the considerations of such questions should be estopped by this Court. Thank you.
Earl Warren: We'll recess now.