Letter From Lani Guinier to Jackie Hurwitz

    NO. 92-8087

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

JERRY LOCKETT, et. al.,
Plaintiffs/Appellants,
vs.

THE BOARD OF EDUCATION OF MUSCOGEE 
COUNTY SCHOOL DISTRICT, et. al.,

Defendants/Appellees.

APPEAL FROM THE UNITED STATES 
DISTRICT COURT FOR THE MIDDLE DISTRICT OF 

GEORGIA, COLUMBUS DIVISION

SUPPLEMENTAL BRIEF OF DEFENDANTS/APPELLEES

HATCHER, STUBBS, LAND, HOLLIS 
& ROTHSCHILD

BY:___________________
WILLIAM B. HARDEGREE 
JAMES E. HUMES, II 
JOSEPH L. WALDREP

Attorneys for Defendants/Appellees

P. O. BOX 2707 
Columbus, GA 31993-5699 

(404) 324-0201



No. 92-8087

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

JERRY LOCKETT, et. al.,

Plaintiffs/Appellants, 

vs.

THE BOARD OF EDUCATION OF MUSCOGEE 
COUNTY SCHOOL DISTRICT, et. al.,

Defendants/Appellees.

I; SUPPLEMENTAL BRIEF OF THE BOARD OF EDUCATION
OF MUSCOGEE COUNTY SCHOOL DISTRICT, GEORGIA. ET. AL. . 

DEFENDANTS/APPELLEES. TO JERRY LOCKETT. ET. AL.. 
PLAINTIFFS/APPELLANTS1 REPLY BRIEF

A. CRITICISM OF DEFENDANTS/APPELLEES• BRIEF
On the first two pages of the Plaintiffs/Appellants' Reply 

, Brief, the Defendants/Appellees, Board of Education of Muscogee 

County School District, Georgia, et. al. ("School District") are 

criticized for seeking to introduce "facts not properly before this
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;! Court and unresponsive legal authority to argue that the decision
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of the District Court below was correct", and in that light

I Plaintiffs cast the Affidavit of the School District's Deputy
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ji Superintendent, Dr. Robert L. Bushong, as a "self-serving
i| proclamation" as it pertains to the "issue of unitary status"..."; i 

J As was the case when it filed its initial Brief with this
ji
Court on or about May 22, 1992, and is the case now, the School

• District believes that the Plaintiffs/Appellants submitted a very

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one-sided picture of the Muscogee County's performance under its 

' twenty-year old school desegregation plan. That is the reason that 

ij the School District referenced Dr. Bushong's Affidavit. The 

j! uncontradicted statistics on student assignment ratios from the

|: Affidavit set out at pages 6 and 7 of the School District's initial
I' :
Brief, show that the School District, for at least six or seven ;

I ; j

years, satisfied the reguirements of Freeman v. Pitts. 499 U.S.

(1992), 60 U.S.L.W. 4287 (March 31, 1992). Thus, wheni!II Plaintiffs make statements such as on page 15 of the initial Brief i 

j; that "the mere adoption and implementation of a constitutionally , 

acceptable desegregation plan does not relieve the School District j 
i' of its affirmative duty to eliminate the effects of state-imposed (
I ;  ij. desegregation", the School District feels as if it is well withinJ |
l! its rights to set forth the complete picture for whatever use this 

j| Court might wish to make of it.

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B. THE ARGUMENT OF PRIOR RULING
j ;

Plaintiffs, on page 2 of the Reply Brief, cite Flowers v.
i

j. United States. 764 F.2d 759 (11th Cir. 1985) in support of this j 
. statement - "In this Circuit, a panel of the Court of Appeals
Ij
!! cannot disregard binding precedent absent an intervening Supreme
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; Court decision or en banc Circuit decision". They do so, because|j
they would like to see the District Court decision overturned based 

| on Graves v. Walton County Board of Education. 686 F.2d 1135, 1138 

l! (5th Cir. Unit B, 1982). However, the Court's holding in Graves 

and the application of the principle of prior ruling set forth in

\ 1 Flowers do not serve as authority for reversing the Districti

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!j Court's decision, which is a correct application of the mootness 

| doctrine as set out by the Supreme Court in Pasadena City Board of 

: Education v. Spangler. 427 U.S. 424 (1976). It is the School

! District's position as set forth and supported by authority at 

I pages 7 through 10 in its Summary of the Argument as a part of its 

J May 22 Brief, that as the instant case was never certified as a

|| class action, and is now admittedly moot as to the namedI
petitioners, it should be dismissed. None of the School District's 

authority, Pasadena or the other cases, are commented on by 
ij Plaintiffs in their Reply Brief. Notwithstanding the prior ruling 

principle, this court has held that while "ordinarily a panel must
| adhere to prior decisions of this Court, our first duty is to
j 1
|l follow the dictates of the Unites States Supreme Court". United ‘
!j i
States v. Thais. 665 F.2d 616, 626 (5th Cir. Unit B 1982). See j

i I !;; also Gresham Park Community Organization v. Howell (5th Cir. Unit

B 1981). (Prior precedent not to be followed where it is in

ij conflict with "numerous Supreme Court cases"). But, if this Court j

jj thinks it is necessary to consider this appeal en banc in view of j

| the Graves v. Walton County Board of Education decision, it can do .
Ij Iij so. However, the School District does not agree with Plaintiffsi i  ithat that would be necessary.
II

1. WHERE THERE IS A DIRECT CONFLICT IN PRECEDENTIAL !
I!| DECISIONS OF PANELS OF CIRCUIT COURTS OF APPEALS, THE PRECEDENTIAL i
| ijl DECISION IS THE FIRST DECISION. Newell Companies, Inc, v. Kenney
Ii
Ij Manufacturing Co. . 864 F.2d 757 (C.A. Fed. 1988). Symbol
j|
jl Technologies v. Metroloqic Instruments. 771 F.Supp. 1390, 1403
|

(D.N.J. 1991).

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The Court's decision in Graves v. Walton County Board of

. Education (supra), in finding, without explanation, Pasadena City 

Board of Education v. Spangler (supra), to be "non-persuasive"

| ignored an earlier Fifth Circuit decision. In Sannon v. United 

States. 631 F.2d 1247 (5th Cir. 1970), the old Fifth Circuit

reached a result which appears diametrically inconsistent with that 

later reached by this Court in Graves v. Walton County. In Sannon. 

a group of Haitian refugees petitioned the Immigration and 

Naturalization Service to publicize new regulations regarding 

immigration rights and asylum. In essence, the regulations 

changed, granting the petitioners the remedies which they sought as 
the case progressed. The Fifth Circuit remanded the case to the

| District Court with instructions to dismiss it as moot. The
|

|| Haitians argued against this, noting that while the case was never
!
certified as a class action, it was certainly treated as such.

| ■
|! Dealing with relief sought by others similarly situated to the

I Named Petitioners at pages 1251-52, Sannon v. United States held as 

follows:

"The remaining portions of the District Court Order which 
grant mandatory injunctive relief to Haitians who are not 
named as petitioners in this action brings to issue the 
appropriateness of class-wide relief in this action. It 
is to these concerns that we now turn...

The absence of a class certification order by the 
District Court notwithstanding, Petitioners assert on 
appeal that this litigation has been conducted from the 
outset as a class action and should be recognized as such 
by this Court. Conceding that they had never moved the 
trial court for a Certification Order throughout six 
litigious years, Petitioners nonetheless maintain that 
class-wide relief is appropriate by directing us to a 
line of Fifth Circuit cases in which we rejected, an 
'excessively formalistic adherence', Bing v. Roadway 
Express. Inc.. 485 F.2d 441 (5th Cir. 1973)... In Bing... 
we were able to infer that the trial court had approved 
the class action nature with a lawsuit involved...

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'
The principle recognized in Bing, however, has no 
application in this case where mootness is the decisional 
around as to the named petitioners. Petitioners' failure 
to move for and to obtain class certification below, 
coupled with our finding of mootness as to the underlying 
substantive claims of the named Petitioners, necessitates 
our further finding pervasive mootness that extends to 
the alleged class... (Emphasis added)

Petitioners in this case never moved the court for class 
certification and thus never solidified the requisite 
Article III adverseness between members of the would be 
class and the INS. The approach that this Court has 
adopted to avoid excessive formalistic hearings to Rule 
23 then does not obtain when justiciability is 
involved... On authority, a Board of school commissioners 
of the City of Indianapolis v. Jacobs (supra) we dismiss 
the purported uncertified "class" action as "moot"."

The inconsistency between Sannon v. United States (supra) and 

Graves v. Walton County Board of Education (supra) is apparent and 

illustrated by the Graves court authority, which was the Bing v.
i

Roadway Express, Inc, decision. In Graves v. Walton County Board 

! of Education (supra at 1140), the Court, deciding not to dismissi
i the case for mootness, even though it was moot as to the original

students who petitioned the Court for relief, reasoned as follows:

"In Bing v. Roadway Express. Inc., this court held that 
the District Court's implicit determination of the class 
action question sufficed in a suit in which all the 
parties and the court proceeded off the assumption that 
the action was a class action, despite the fact that 
there existed no formal order of certification by the 
District Court...

The principle recognized in Bing is applicable in this 
ij instance since the record evinces the class action status

of this case; despite the lack of a formal order of class 
certification, this case was in fact a class action and 
was specifically described and treated as such by the 
parties and the trial court..."

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However, as the old Fifth Circuit in Sannon v. United States (supra
i i at 1252) had correctly and contrary to Graves. pointed out as set
i'li forth above:

"The principle recognized in Bing, however, has no 
application in this case where mootness is the decisional 
ground as to the named petitioners. Petitioners' failure 
to move for and to obtain class certification below, 
coupled with our finding of mootness as to the underlying 
substantive claims of the named petitioners, necessitates 
our further finding pervasive mootness that extends to 

}j the alleged class. See Board of School Comm'rs. of City
of Indianapolis v. Jacobs. 420 U.S. 128, 95 S. Ct. 848,
43 L.Ed. 2d 74 (1975); Sosna v. Iowa. 41 U.S. 393, 95 S.
Ct. 553, 42 L.Ed. 2d 532 (1975).

i ;  i
The approach that this Court has adopted to avoid 
"excessively formalistic adherence" to Rule 23 then, does 
not obtain when justiciability is involved..." i

ii
In Bing v. Roadway Express, Inc. (supra) , the issue of i 

mootness as to the named petitioners never came up. The named |

petitioners were still in the case when the issue of class |;
certification was ruled on. Bing filed his suit under Rule 23 as !

I, !
a class action and the District Court gave notice to the class, i

I i IBut there was never a Rule 23 certification. The lack of |

i; certification was first raised on appeal when the case was before 

this Court. Clearly, there is a conflict. Sannon holds that the 

implicit class recognition argument in Bing can't be applied or
■ used where the case is moot as to the named petitioners. Ignoring 

Pasadena City Board of Education v. Spangler (supra) and its own

; holding in Sannon. Unit B of the Fifth Circuit in Graves ruled that !
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the implicit recognition argument could be used, even where the !

case was moot. Thus, the principle of prior ruling means that

jl Graves must be rejected, and could not serve as authority for
j
1 reversing the District Court.

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FOR THE PRINCIPLE OF PRIOR RULING TO HAVE

11 APPLICATION THE PLAINTIFFS WOULD HAVE TO PROVE WHAT THEY ALLEGE AT11
j PAGE 10 OF THEIR INITIAL BRIEF, THAT IN Graves "THE FIFTH CIRCUIT 

j' ADDRESSED THE IDENTICAL QUESTIONS AT ISSUE AND ARRIVED AT THE EXACT
I!
; OPPOSITE RESULT". THAT IS NOT THE CASE.
jl In Graves v. Walton County Board of Education, (supra at 1139)
Ij
ji the District Court recognized in one Order that the Plaintiffs were
■
ji suing for "parents and pupils who are similarly situated... and 
!' teachers... similarly affected by the actions of the Defendants in 

!j penalizing them. . . because of attempt to petition the Defendants 

'I about the conditions within their racially segregated schools..." 

ji There was another Order adopting an injunction agreed to by both 

! parents and the School Board which, by its terms, pointed out that!i ! II it was "prepared by [the Board] and adopted by the Court [to 

provide] relief not for the individual plaintiffs but for the 

entire plaintiff class of [black] parents and teachers." Below, in 

this case, however, the Trial Court stated in one Order that
! ' "circumstances indicated that this is a proper class action insofar 
as the question of assignment of pupils in the public school system

1 II: of Muscogee County is concerned". [R-1D-2]. There has not been 

j the recognition and treatment of this case as a class action.

h
3. THERE IS CONTRARY INTERVENING SUPREME COURT

jili AUTHORITY AFTER Graves v. Walton County Board of Education.

In City of Los Angeles v. Lyons. 461 U.S. 45, 103 S. Ct. 1660, 
ij 75 L.Ed. 2d 675 (1983), decided after Graves. individual and class
Ij
claims were dismissed in the absence of class certification. Then,

II

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in the case of Tucker v. Phvfer. 819 F.2d 1030, (11th Cir. 1987),

this Court dismissed as moot an Eighth Amendment cruel and unusual 

punishment case brought by a prisoner seeking money damages for 

himself and declaratory and injunctive relief on behalf of himself 

and a class of people consisting of all juvenile (inmates) in the

Lauderdale County, Florida jail. At the time the Plaintiff moved j
l

for a certification of the case, he had been released and was no 

longer a prisoner. Even though the lawsuit had been filed as a
j

class action, it was dismissed as moot with stated reliance upon 1 

the City of Los Angeles v. Lyons decision, decided after Graves v. iIWalter County Board of Education, (supra). In Tucker v. Phvfer I
. . . l(supra at page 1035), this Court departed from its holding in | 

McKinnon v. Talladega County. 745 F.2d 1360 (11th Cir. 1984) which ]
. . iwas also a case involving confinement in a county jail and having j 

a similar procedural history to Tucker v. Phvfer. In McKinnon, 

this Court had held that the Plaintiff had standing to prosecute 

his claim for equitable relief even though his claim for monetary
Idamages had become moot. Tucker rejected McKinnon because of the 

intervening Supreme Court Lyons decision.

C. PLAINTIFFS' ARGUMENT THAT THERE HAS BEEN NO UNITARY HEARING
Plaintiffs refer on the last page of the Reply Brief to this | 

Court's recent decision in Lee v. Etowah County Board of Education, j 

No. 88-7551 slip opinion (11th Cir. June 4, 1992). This decision 

in no way involved the issue of mootness. If mootness is a 

threshold issue, as the School District feels that it is, Lee v. 

Etowah County Board of Education (supra) is distinguished from the 
instant case.

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This the 25^ day of June, 1992 .

i
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HATCHER, STUBBS, LAND, HOLLIS 
& ROTHSCHILD

BY:

Ga. State Bar No. 324400

tI BY:
[AM£S E. HUMES, II 
GaT State Bar No. 377700

BY: — Kr&S— Q' --------
JOSEPH L. WALDREP
Ga. State Bar No. 730900

P. O. BOX 2707 
Columbus, GA 31993-5699 
(404) 324-0201

i;iI

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CERTIFICATE OF SERVICE
i I do hereby certify that I have served a copy of the foregoing

! SUPPLEMENTAL BRIEF OF THE BOARD OF EDUCATION OF MUSCOGEE COUNTY!
SCHOOL DISTRICT, GEORGIA, ET. AL., DEFENDANTS/APPELLEES, TO JERRY 

j LOCKETT, ET. AL. , PLAINTIFFS/APPELLANTS ' REPLY BRIEF REPLY OR 
| SUPPLEMENTAL BRIEF OF APPELLEES, upon Plaintiffs' counsel, byI
placing a copy of the same in the United States mail with

I;j] sufficient postage affixed thereto to insure delivery thereof to
I j
I Dennis D. Parker, NAACP Legal Defense and Educational Fund, Inc., 

99 Hudson Street, 16th Floor, New York, N.Y. 10013, and by Hand
I
| Delivery upon Tina G. Stanford, 537 Broadway, Columbus, Georgia 

31902.

This the of June, 1992.
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