430 F2d 966 National Labor Relations Board v. Amalgamated Clothing Workers of America

430 F.2d 966

74 L.R.R.M. (BNA) 3024, 63 Lab.Cas. P 11,101


No. 28680.

United States Court of Appeals, Fifth Circuit.

Aug. 12, 1970.

Charles M. Paschal, Jr., Director, N.L.R.B., 15th Region, New Orleans, La., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Herman M. Levy, Michael S. Winer, Attys., N.L.R.B., for petitioner.

Robert J. Rabin, Jacob Sheinkman, New York City, Ronald K. Fisher, Chicago, Ill., for respondent.

Before JOHN R. BROWN, Chief Judge, and BELL and INGRAHAM, Circuit judges.



ENFORCED. See Local Rule 21.

JOHN R. BROWN, Chief Judge:


It may seem incongruous that a one-word disposition should have this rather extended opinion as a part of the Court's action. But the purpose of this opinion is not to discuss the merits, or more accurately the lack of merits, in the case under review.1 Rather it is to advise litigants, parties and the Bar about the Fifth Circuit's most recent Rule 21.2


As was this Court's system for judicial screening of cases3 -- now rounding out a year and three quarters' experience which continues to demonstrate its fairness and workability-- Rule 21 is another response of this Court to the ever-growing explosive increase in the amount of its judicial business.4


What is worse, the future both for the Fifth Circuit and for the Federal Courts of Appeals nationwide is portentous, as witness the surveys of the United States Courts of Appeals made by Will Shafroth, formerly Deputy Director of the Administrative Office of the United States Courts. These reflect that actual experience in the short space of four years proves that all projections err on the low side.5 The increases are spectacular for the Fifth Circuit6 and for that matter foreboding for the Courts of Appeals as a whole.7


But even more foreboding, for the Fifth Circuit, we have had to continually revise these nationwide projections upward because of our own demonstrated experience.8 Within but a year-- tomorrow-- we will have 2,000 cases and a couple of years more-- day after tomorrow-- we will have 2,500 cases.


We need not here canvass the causes for this local and nationwide increase. A core cause undoubtedly is the like increase in the nation's population from 150 million to 205 million in the short space of 20 years-- a growth which this area more than shares. More directly related to Court operations, quite obviously it is due to the increase in Federal Court business generally. But of unusual significance is the fact that the percentage of appeals taken in both civil and criminal cases markedly exceeds the percentage of increase in trials in the District Courts.9 For the Fifth Circuit, total District Court trials have increased 78% Against an increase of 168% For appeals in the period 1961-1969, and, whereas criminal trials have increased 48%, criminal appeals have increased 210%.10


With this staggering prospect now upon us, we can see it is our duty to exercise imaginative, inventive resourcefulness in fashioning new methods and in adapting or modifying older ones, to enable us to at least stay abreast of this flood tide. This means that with safeguards which will assure the proper handling of cases, the Court and its members, up to the maximum physical and mental capacity of each of the Judges, must increase output.11


We have made substantial headway12 in this goal by the screening procedures adopted (see note 3, supra) and especially since after the experience of a year and a half, the number of non-argued Summary II cases runs approximately 40% Of the total number of cases briefed for submission and disposition on the merits.13 But within both the cases classed as Summary II and those classed III or IV and calendared for oral argument, our experience, bearing out that of appellate courts generally, is convincing that in a number of cases there is no real need for an opinion at all. Where in a given case that is the considered judicial judgment of three Judges comprising a panel, then it is perfectly obvious that the now limited and precious judicial resources can be husbanded by a procedure which eliminates that unnecessary opinion.


Experience again demonstrates that cases in which an opinion really serves no useful purpose falls into several well recognized groups. Rule 21 (see note 2, supra) undertakes to identify them broadly as (1) through (4). The factor (1) deals with the familiar situation in which the correctness of the Judge-tried case turns on fact findings. Of course, sometimes judicial judgment will persuade the panel that an articulate discussion of factual details is desirable if not necessary. On the other hand, from the standpoint of the function of an appellate court opinion, little is to be served by an elaborate discussion or for that matter a discussion at all on the underlying facts which the Court, after mature study, is convinced are not demonstrated to be clearly erroneous under F.R.Civ.P. 52(a). Closely akin and for the jury trial is factor (2) where the Court concludes the evidence warranted jury submission. After the masterly opinion written for the full Court by Judge Ainsworth in Boeing Co. v. Shipman, 5 Cir., 1969, 411 F.2d 365 (en banc), there is seldom any need for discussion of the legal standard. And in many cases the law receives no benefit from any discussion of the evidence which the Court concludes is sufficient. These same considerations are carried over into the field of administrative law by factor (3) for cases in which the legal standard is well known and in which the facts are often of a kind which are non-repetitive and completely uninstructive with respect to the illumination of legal principles or as a guide for future conduct by parties or judicial action by administrative agencies or Courts. Factor (4) covers that broad group of cases in which no error of law appears.


As the Rule points out, its application depends upon the Court determining judicially 'that any one or more of the following circumstances ((1) through (4)) exists and is dispositive * * *'. But of decisive significance in each of these factors, singly or collectively, is the further judicial determination by the Court 'that an opinion would have no precedential value'.


It is here that the Court faces a heavy obligation. For as a part of the time-proved hierarchical system, this Court and each of its Judges must constantly bear in mind the distinctive role of an appellate court, particularly a United States Court of Appeals. Foremost, we are a court of review and in the Federal system a court of review of cases in which appeal is nearly always a matter of right, not a certiorari-type discretion. That means, of course, that we must determine in each case whether the outcome under review meets acceptable legal standards. But our role does not stop there even though to the parties it is the result we ordain which counts the most.


A most important function is the writing of opinions. Opinions are to serve a number of purposes at least two of which are highly significant. One is that an articulated discussion of the factors, legal, factual or both, which lead the Court to one rather than to another result, gives strength to the system, and reduces, if not eliminates, the easy temptation or tendency to ill-considered or even arbitrary action by those having the awesome power of almost final review. The second, of course, is that the very discursive statement of these articulated reasons is the thing out of which law-- and particularly Judge-made law-- grows. It is an essential part of the process of the creation of principles on which predictions can fairly be forecast as a basis for conduct, accountability, or the like. All Judges know that in some cases this latter factor may almost completely transcend the importance of the case which is the vehicle bringing the questions forward.


By Rule 21 the Court not only implicitly assumes the responsibility for evaluating this factor, but also is specifically commanded to make the conjunctive judicial determination that an opinion would have no precedential value. Having the make unanimously that explicit decisive determination, and implicitly, the further one that circumstances or factors, other than precedential value, do not make an opinion essential or appropriate, the Court, by the adoption of the Rule, affirms that it must be carefully and selectively employed.13


The Court recognizes that it must-- the word is must-- never apply the Rule to avoid making a difficult or troublesome decision or to conceal divisive or disturbing issues. This means that while Rule 21 should make a real contribution toward the goal of avoiding delays which can often amount to a denial of justice, it must be sparingly used.14


The Court itself must be vigilant. We believe we are sensitive now to the factors which would make application of the Rule wrong or unwise or inappropriate. It is the Court's purpose to heed them and in our own survival assure survival of the system we cherish.


The instant case is a run-of-the-mill Board Order finding that the Union had violated 8(b)(1)(A) of the Act by threatening employees with loss of employment if they did not join the Union. It turns wholly on credibility choices which are amply supported


Rule 21 provides: When the Court determines that any one or more of the following circumstances exists and is dispositive of a matter submitted to the Court for decision: (1) that a judgment of the District Court is based on findings of fact which are not clearly erroneous; (2) that the evidence in support of a jury verdict is not insufficient; (3) that the order of an administrative agency is supported by substantial evidence on the record as a whole; (4) that no error of law appears; and the Court also determines that an opinion would have no precedential value, the judgment or order may be affirmed or enforced without opinion

In such case, the Court may in its discretion enter either of the following orders: 'AFFIRMED. See Local Rule 21,' or 'ENFORCED. See Local Rule 21.'


See Murphy v. Houma Well Service, 5 Cir., 1969, 409 F.2d 804, Part I; Huth v. Southern Pacific Co., 5 Cir., 1969, 417 F.2d 526, Part I, and especially the data discussed in each of these opinions, Part I particularly in notes 5 of Murphy and 4 through 10 of Huth

See also Groendyke Transport, Inc., v. Davis, 5 Cir., 1969, 406 F.2d 1158, 1161, n. 6.


The almost exponential expansion is revealed by the increase year by year in the number of cases filed, disposed of and carried over to the succeeding year during the last decade in the Fifth Circuit:

Carried Forward

No. Cases No. Cases to Succeeding

Year Filed Disposed Of Year

1960 584 554 278

1961 639 514 403

1962 717 598 522

1963 876 765 633

1964 1033 931 735

1965 1073 878 930

1966 1099 1028 1001

1967 1189 1171 1019

1968 1347 1290 1076

1969 1489 1496 1069

1970 1794 1682 1181


The first survey was in 1967, survey of U.S. Courts of Appeals, 1967, 42 FRD 243 et seq. Within a year the projections through 1975 had to be revised and within just two more years, the 1970 Survey again revises them substantially upward


Projections of Case Filings

5th Circuit


1967 1970

Survey* Re-Survey*

1968 1,285 1,348

1969 1,374 1.648

1970 1,464 1,700

1971 1.554 1,852

1972 1,643 2,006

1973 1,733 2,159

1974 1,823 2,311

1975 1,913 2,464FRD at 263

**Projections were based on the most recent 5-year period (1965-69), a basis our experience justifies.


The 1970 Shafroth Survey Projection nationwide by Circuit is:

NOTE--Some parts of this form are wider than one screen. To view

material that exceeds the width of this screen, use the right arrow

key. To return to the original screen, use the left arrow key.

                                  United States Courts of Appeals
                             Total Caseload Profections for 1970-1975
            Based on Actual Caseload of Filings for Fiscal Years 1965-1969, by Circuit
Fiscal             of
 Year   Total   Columbia  First  Second  Third  Fourth  Fifth  Sixth  Seventh  Eighth  Ninth  Tenth
                           Caseload of Appeals Commenced 1960 to 1969 1
1960    3,899        505    154     582   296      224    577    306    329     237      455   234
1961    4,204        527    146     674   334      250    630    340    328     246      443   286
1962    4,587        601    154     555   408      292    703    394    374     282      560   264
1963    5,039        718    133     667   354      352    852    374    381     254      687   267
1964    5,412        624    179     680   368      450  1,010    513    396     305      507   380
1965    6,221        568    193     778   444      568  1,037    638    469     302      809   415
1966    6,548        702    170     793   482      569  1,041    603    475     374      796   543
1967    7,069        689    181     828   609      727  1,132    657    483     393      881   489
1968    8,224        839    204     858   561      946  1,348    715    634     401    1,077   641
1969    9,334        954    204   1,112   612    1,036  1,648    772    655     394    1,396   551
                              Projections of Caseloads, 1970 to 19752
1970    9,850      1,023    207     854   666    1,163  1,700    791    702     436    1,428   639
1971    10,640     1,114    213     919   708    1,294  1,853    829    756     457    1,574   676
1972    11,430     1,025    218     983   749    1,426  2,006    867    809     478    1,719   713
1973    12,220     1,296    224   1,048   791    1,557  2,159    905    862     499    1,865   750
1974    13,011     1,387    230   1,112   832    1,688  2,311    943    915     520    2,010   787
1975    13,801     1,478    235   1,177   874    1,820  2,464    981    968     542    2,166   824

From 1962 to 1969 the number of cases commenced has been reduced by cases disposed of by



The projected 1970-1975 filings represent a mathematical straight line

trend based on the "method of least squares" using the data base of filings

for fiscal years 1965-1969. Because of rounding of separate circuits, totals

for all circuits may be slightly different.1/5


Against the 1970 survey forecast of 1700 filings for F.Y. 1970 (see note 6 supra), we actually had 1794 (See Note 4 supra)

Using Fifth Circuit actual experience the 1970 survey projections require further upward revision:

       1970   Upward Revision
F.Y.  Survey   Fifth Circuit
1971  1,852        1,961
1972  2,006        2,124
1973  2,159        2,286
1974  2,311        2,447
1975  2,464        2,609

See consolidated Tables S-6 with respect to each of the Courts of Appeals in the 1970 Shafroth Report. (See note 5, supra)


For the Fifth Circuit it is as follows:

                 Table S-6.  United states Court of Appeals
                                 Fifth Circuit
                        FISCAL YEARS 1961 through 1969
           Number of                 Total
           judgeships                 and
Fiscal                   Total     criminal  Civil     Civil  Criminal Criminal
 year   Circuit District trials     appeals   trials  appeals  trials  appeals
------- ------- -------- --------- --------- -------- ------- -------- --------
1961          7    33    1,770     512       1,159    408     611      104
1962          9    45    1,975     529       1,328    422     647      107
1963          9    45    2,227     679       1,463    528     764      151
1964          9    45    2,154     818       1,418    687     736      131
1965          9    45    2,292     879       1,596    702     696      177
1966          9    45    2,478     873       1,669    664     809      209
1967         13    58    2,703     949       1,869    703     834      246
1968         13    58    2,960     1,159     2,034    820     926      339
1969         15    58    3,162     1,372     2,257    1,049   905      323
1961      114.3   75.8   78.6      168.0     94.7     157.1   48.1     210.6
         Note: Beginning with 1962 the number of appeals in each category has
                                    been reduced by
             the number disposed of by

We deal always in the Fifth Circuit in large figures, both of input (see note 4, supra) and output

Total Number of Printed Opinions

1965 - 626

1966 - 672

1967 - 820

1968 - 953

1969 - 1128

1970 - 1271


As shown in note 4, supra, although filings have increased so has yearly output, with output each year since 1967 exceeding input of the preceding year with a disproportionately smaller increase in the carry over to the succeeding year. In addition there has been a substantial reduction in the time from filing to disposition


Experience may also prove an experiment unhelpful as it did our Rule 19, promulgated as a part of the screening procedure. (See note 3 supra, and the Appendix to Murphy, 409 F.2d 804, 812). The Court has rescinded Rule 19 which expressly permitted motions for summary reversals, affirmance, etc. as its operation proved actually to delay, not to expedite, the matter. Without the Rule the Court recognizes that it has the inherent power to take such action on its own or a party's motion where circumstances warrant. See, e.g., Groendyke Transport, Inc., v. Davis, 5 Cir., 1969, 406 F.2d 1158, 1161, n. 6


When Rule 21 is used for a case classed summary II the parties will get the Rule 18 Notice (see note 3. supra). When used in a class III or IV calendared case after oral argument the order is handled as would be a regular opinion, signed or per curiam


We understand this is the experience of the District of Columbia Circuit Court of Appeals under its Rule 13(c)

(c) Order Form of Decision. In accordance with recommendations for improvement of judicial administration, /1/ this court may, while according full consideration of the issues, dispense with opinions where the issues occasion no need therefor, and confine its action to such abbreviated disposition as it may deem appropriate, e.g., affirmance by order of a decision or judgment of a court or administrative agency; a judgment, of affirmance or reversal, containing a notation of precedents, or accompanied by a brief memorandum.


Report of the President's Commission on Crime in the District of Columbia (1966) p. 308; and see Canon 19-- American Bar Association Canons of Judicial Ethics; Position adopted by the Judicial Conference of the United States-- March 16, 1964