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September 19, 1956

Belford BARNETT, Plaintiff,

The opinion of the court was delivered by: MADDEN

This is an action wherein the plaintiff, Belford Barnett, has filed a supplemental petition seeking an order reinstating him to his position as an employee with the defendant, Pennsylvania-Reading Seashore Lines, together with compensation for loss of work.

The supplemental petition alleges that plaintiff has been a railroad employee since 1906 and an employee of defendant since its incorporation (sometime prior to 1935), that in July, 1935 while in employ of defendant he was injured, that he instituted suit in the Courts of the State of New Jersey for his injuries. He alleges that during the pendency of his suit the defendant-company offered him different employment for the remainder of his natural life, if he would forego his damage claim which he further alleges he did. (While this allegation appears in the complaint the record before the National Railroad Adjustment Board which both parties use and refer to as part of this motion, discloses that the suit instituted March 25, 1936 was dismissed for failure to establish negligence on the part of the Railroad.)

 9. The petitioner has exhausted his remedies in the respondent's tribunals and in the National Railroad Adjustment Board, and has recovered nothing. A copy of the 'award' of the National Railroad Adjustment Board, Division I, sought to be 'enforced' hereby, is attached hereto as Exhibit 'A'.

 10. This court has jurisdiction by virtue of 45 U.S.C.A. 153, First (p).

 This citation by petitioner is the Railway Labor Act, and further on the petition alleges jurisdiction in the Court under 28 U.S.C.A. § 2201, the Declaratory Judgments Act, although both respondent and petitioner are citizens of New Jersey for the purpose of this suit and no diversity exists and counsel in his argument has not pointed out how the Court would have jurisdiction under this Act. Petitioner thereupon prays for relief.

 When the action was first commenced in this Court the respondent-railroad moved to dismiss upon the ground that petitioner's exclusive remedy rested with the National Railroad Adjustment Board. In the brief and argument of counsel for petitioner, he raised the constitutionality of the Act in that it deprived the petitioner of common law trial of his alleged cause of action. The Court, thereupon, suggested a supplemental pleading alleging the unconstitutionality of the Act so that notice under the Statute *fn1" could be given by the Court to the Attorney General of the United States. Counsel has filed such supplemental petition and the Court has notified the Attorney General in compliance with the Statute. The Attorney General's office, after review of the pleadings, notified the Court that the United States would not intervene as a party in the action. The matter then proceeded to argument.

 Section 153 of the Railway Labor Act, 45 U.S.C.A. § 153, establishes the National Railroad Adjustment Board and its divisions and function. Subparagraph (m) provides, as follows:

 'The awards of the several divisions of the Adjustment Board shall be stated in writing. A copy of the awards shall be furnished to the respective parties to the controversy, and the awards shall be final and binding upon both parties to the dispute, except insofar as they shall contain a money award. In case a dispute arises involving an interpretation of the award, the division of the Board upon request of either party shall interpret the award in the light of the dispute.'(Emphasis supplied.)

 Subparagraph (p) upon which the petitioner alleges jurisdiction in this Court provides, as follows:

 'If a carrier does not comply with an order of a division of the Adjustment Board within the time limit in such order, the petitioner, or any person for whose benefit such order was made, may file in the District Court of the United States for the district in which he resides or in which is located the principal operating office of the carrier, or through which the carrier operates, a petition setting forth briefly the causes for which he claims relief, and the order of the division of the Adjustment Board in the premises. Such suit in the District Court of the United States shall proceed in all respects as other civil suits, except that on the trial of such suit the findings and order of the division of the Adjustment Board shall be prima facie evidence of the facts therein stated, and except that the petitioner shall not be liable for costs in the district court nor for costs at any subsequent stage of the proceedings, unless they accrue upon his appeal, and such costs shall be paid out of the appropriation for the expenses of the courts of the United States. If the petitioner shall finally prevail he shall be allowed a reasonable attorney's fee, to be taxed and collected as a part of the costs of the suit. The district courts are empowered, under the rules of the court governing actions at law, to make such order and enter such judgment, by writ of mandamus or otherwise, as may be appropriate to enforce or set aside the order of the division of the Adjustment Board.'

 The record of the Board presented here for consideration on this motion discloses that the award was against the petitioner herein.

 In the matter of Moore v. Illinois Central R. Co., 1941, 312 U.S. 630, 61 S. Ct. 754, 85 L. Ed. 1089, Moore a former employee brought suit, not as the petitioner here has done for reinstatement with incidental damages, but solely for damages for wrongful discharge in violation of a written contract between the Railroad and the Brotherhood. The Supreme Court held that all he was seeking was money damages for the common law breach of contract and that he did not have to go to the Railroad Adjustment Board.

 In 1950 the Supreme Court reviewed its decision in the Moore case, supra, in the matter of Slocum v. Delaware, Lackawanna & Western Railroad Co., 339 U.S. 239, at page 244, 70 S. ...

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