Gondeck v. Pan American World Airways, Inc./Dissent Harlan

by John Marshall Harlan II

United States Supreme Court

382 U.S. 25

Gondeck  v.  Pan American World Airways, Inc.

Mr. Justice HARLAN, dissenting.

The result reached in this case has been achieved at the expense of the sound legal principle that litigation must at some point come to an end.

I can find nothing in the train of events on which the Court relies in overturning this more than three-year-old final judgment that justifies bringing into play the dubious doctrine of United States v. Ohio Power Co., 353 U.S. 98, 77 S.Ct. 652, 1 L.Ed.2d 683, a case which was decided by a closely divided vote of less than a full bench, ^[1] which deviated from long-established practices of this Court, ^[2] and which, so far as I can find, has had no sequel in subsequent decisions of the Court. ^[3]

The judgment against this petitioner became final as long ago as June 11, 1962. 370 U.S. 918, 82 S.Ct. 1556, 8 L.Ed.2d 499. The Court refused to reconsider it four months later when it denied rehearing on October 8, 1962. 371 U.S. 856, 83 S.Ct. 17, 9 L.Ed.2d 93. When some two years later, July 13, 1964, the Court of Appeals for the Fourth Circuit upheld a compensation award with respect to a co-employee of Gondeck killed in the same accident, Pan American World Airways, Inc. v. O'Hearne, 335 F.2d 70, petitioner did not even seek to file another petition for rehearing here. A few months later the Fifth Circuit might be thought to have indicated some doubt about its earlier decision in the Gondeck case, O'Keeffe v. Pan American World Airways, Inc., 5 Cir., 338 F.2d 319, 325, but again no attempt was made to file a further petition for rehearing here in Gondeck.

It was this Court's decision of last Term in O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359, 85 S.Ct. 1012, 13 L.Ed.2d 895, which itself was a debatable innovation in this area of the law, ^[4] that triggered the undoing of this judgment of four Terms ago. It should be noted that the subject matter in O'Keeffe v. Pan American World Airways, Inc., was an entirely different accident from the one in which petitioner's decedent was involved.

This, then, is hardly one of those rare cases in which "the interest in finality of litigation must yield" because "the interests of justice would make unfair the strict application of our rules," ante, pp. 26-27. On the contrary, the situation is one in which the prevailing party in this litigation had every reason to count on the judgment in its favor remaining firm. Believing that this decision holds seeds of mischief for the future orderly administration of justice, I respectfully dissent.

Notes

1. The vote was 4 to 3, Mr. Justice Brennan and Mr. Justice Whittaker, since retired, not participating. 353 U.S., at 99, 77 S.Ct. at 652.
2. See dissenting opinion of Harlan, J., 353 U.S., at 99, 77 S.Ct. at 652.
3. My Brother CLARK's citation of Cahill v. New York, N.H. & H.R. Co., 351 U.S. 183, 76 S.Ct. 758, 100 L.Ed.2d 1075 ante, p. 28 for the proposition that this petition for rehearing must be granted is inapposite. Cahill was an FELA case in which this Court reversed summarily a judgment of the Court of Appeals overturning a district court judgment for the plaintiff, 350 U.S. 898, 76 S.Ct. 180, 100 L.Ed. 790. Later that same Term, after a petition for rehearing had been denied, 350 U.S. 943, 76 S.Ct. 300, 100 L.Ed. 823, the Court was persuaded on 'a motion to recall and amend the judgment' that its mandate, which simply reinstated the District Court's judgment, was incorrect and that the case should properly have been remanded to the Court of Appeals for further proceedings. It is difficult for me to see how the correction during the same Term of our own error in Cahill can be thought to compel or justify a general 'rule of 'no finality" (as my Brother CLARK puts it, ante, p. 29) which requires the granting of a second petition for rehearing three years after the first one was denied in a case which this Court never heard.
4. The case was decided without argument by a substantially divided Court, 380 U.S. 359, 85 S.Ct. 1012, 13 L.Ed.2d 895. See dissenting opinion of Harlan, J., joined by Clark and White, JJ., 380 U.S., at 365, 85 S.Ct. at 1016. See also separate opinion of Douglas, J., 380 U.S., at 371, 85 S.Ct. at 1019.