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

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, which deviated from long-established practices of this Court, and which, so far as I can find, has had no sequel in subsequent decisions of the Court.

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, 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.