Franks v. Bowman Transportation Company Petitioners' Opposition to Suggestion of Mootness

    I n  th e

Bnpxnnx Gkmrt nf tlj? hkuXxh States
O ctober T erm , 1974

No. 74-728

H arold F ranks a n d  J o h n n ie  L e e ,

v.
Petitioners,

B owman T ransportation Company , I n c ., e t  al.,

Respondents.

PETITIONERS’ OPPOSITION TO SUGGESTION 
OF MOOTNESS

J ack Greenberg  
J ames M. N abrit, III 
M orris J .  B aller 
B arry Ij. G oldstein 
E ric S ch n a pper

10 Columbus Circle
New York, New York 10019

J o h n  R . M yer
Crosland, Myer, Rindskopf & Terry 
2415 Nat’l Bank of Georgia Bldg.
34 Peachtree Street, N. W.
Atlanta, Georgia 30303

E lizabeth  R. R indskopf  
265 Church Street 
New Haven, Connecticut 06510

Attorneys for Petitioners



1st th e

§>tt$irpm£ (Emtrt nf tlw I n M  Btutm
O ctobeb T e em , 1974 

No. 74-728

H abold F ranks a n d  J o h n n ie  L e e ,

v.
Petitioners,

B owman T banspobtation C ompany , I nc., e t al.,

Respondents.

PETITIONERS’ OPPOSITION TO SUGGESTION 
OF MOOTNESS

This case is not moot.
Respondent Bowman Transportation, Inc., suggests that 

this certified class action1 has become moot, despite the 
existence of a continuing controversy affecting important 
rights of class members, because the named plaintiffs’ indi­
vidual rights do not depend on the resolution of the ques­
tion presented to this Court. The facts are as set forth in 
Petitioners’ brief,2 and briefly summarized in Bowman’s 
Memorandum Suggesting Mootness. All of these facts were

1 The district court formally certified this case as a class action, 
defined the classes represented by plaintiffs, and provided for 
notice, on June 28, 1972 and July 14, 1972. (Appendix to Petition 
for a Writ of Certiorari, A53, A66-A68, A70). The district court’s 
actions fully comport with the requirements of Rule 23(c), Federal 
Rules of Civil Procedure. Cf. Board of School Commissioners of 
Indianapolis v. Jacobs, 420 U.S. 128, 129-130 (1975).

2 Brief for Petitioners, pp. 5-11.



2

before the court when it granted the Petition for a Writ of 
Certiorari.3

Principles clarified last term in Sosna v. loiva, 419 U.S. 
393 (1975), and in Board of School Commissioners of 
Indianapolis v. Jacobs, 420 U.S. 393 (1975), refute the 
suggestions of mootness. The controlling difference be­
tween Sosna and Jacobs was the existence, in Sosna alone, 
of a properly certified and defined class. As a result,

When the District Court certified the propriety of the 
class action, the class of unnamed persons described 
in the certification acquired a legal status separate 
from the interest asserted by the appellant. . . , [T]his 
factor significantly affect the mootness determination.

Although the controversy is no longer live as to appel­
lant Sosna, it remains very much alive for the class of 
persons she has been certified to represent.

Sosna, supra, 419 U.S. at 399, 401. In contrast, Jacobs was 
moot “because the class action was never properly certified 
nor the class properly identified,” 419 U.S. at 130 (empha­
sis supplied). The instant case, like Sosna and unlike 
Jacobs, was “duly certified as a class action pursuant to 
Fed. Rule Civ. Proc. 23,” Jacobs, supra, 420 U.S. at 129.

This case fits precisely within the rule for determining 
mootness announced in Sosna:

[T]here must be a live controversy at the time this 
Court reviews the case. . . . The controversy may 
exist, however, between a named defendant and a mem­
ber of the class represented by the named plaintiff, 
even though the claim of the named plaintiff has be­
come moot.

3 Petition for a Writ of Certiorari, pp. 5-7.



3

419 U.S. at 402. Here, a number of class members have a 
“live controversy” with Respondents with respect to the 
retroactive seniority issue. Several members of “Class 
3”4 reapplied for OTR jobs pursuant to the district court’s 
decree. Several were hired and still drive for Bowman;5 
their present seniority status is inferior to what it will be 
if Petitioners prevail here on the merits of the retroactive 
seniority issue. As a result of their reduced seniority, 
these individuals are subjected each day they work to terms 
and conditions of employment tainted by past discrimina­
tion. They are unable to compete with full seniority for 
more desirable runs and shifts; and their income opportu­
nity is diminished by this competitive bidding handicap. 
In addition, several class members were initially rehired 
but no longer work for Bowman;6 their income was de­
creased during employment and they will be entitled to 
further back pay if Petitioners prevail. Finally, the rea­
sons given by Bowman for rejection of many class mem­
bers’ renewed applications after the decree7 strongly sug­

4 Blacks whose applications for OTR positions Bowman discrimi- 
natorily rejected prior to January 1, 1972 (see Petitioners’ brief 
at 10).

5 See Bowman’s Answers to Plaintiffs’ Remand Interrogatories, 
filed May 1, 1975 (N.D. Ga., C.A. No. 15,086), #35 and #36, and 
Exhibits 5 and 34. Plaintiffs filed those remand interrogatories in 
the district court in connection with remand proceedings on issues 
other than that presented in this Court. Interrogatories 35-37 
requested up-dated information as to each black OTR applicant 
denied a job prior to January 1, 1972, and granted re-application 
rights by the district court. Answer 36 and Exhibit 34 list all 
such Class 3 members and show which ones were hired; Answers 
35, 36 and Exhibit 5 show the current status of such persons or 
when they were terminated.

6 See n. 5, supraw
7 Such reasons as “unable to verify experience” and “no tractor- 

trailer experience” are exactly the same pretexts Bowman used to 
deny jobs to plaintiff Lee, witnesses Harbor and McLaughlin, and 
other black OTR applicants in the first, place. See Brief for Peti­
tioners at 7-10.



4

gest continued post-decree discrimination. If any of these 
persons are adjudged entitled to reinstatement, their 
seniority status will depend on the outcome here.

Members of the plaintiff class affected by the retroactive 
seniority issue cannot fully protect their stake by filing a 
new lawsuit or pursuing the seniority issue from the re­
mand proceedings to a renewed appeal to this Court.8 Each 
day they work without their proper seniority, they suffer 
anew the consequences of past discrimination. ISTo future 
decision of this Court in some later case can ever lift the 
yoke of employment discrimination from the days and 
years that will then have passed.

The suggestion raised by Bowman is one of standing, 
properly speaking, rather than mootness. The mootness 
decisions relied upon by Bowman, and similar recent deci­
sions,9 have involved changes in the factual setting which 
eliminated the present claim of one party, thus ending the 
“controversy” necessary for jurisdiction. Here, the under­
lying facts remain the same, and a number of class mem­
bers have a present stake in the outcome that is “real and 
immediate,” not “conjectural” or “hypothetical,” O’Shea v. 
Littleton, 414 U.S. 488, 494 (1974). Since the case has been 
certified as a class action, there are presently before the 
court parties who have standing to present the retroactive 
seniority issue. This case is not an academic exercise, but 
a live controversy between adverse parties.

8 Under the Fifth Circuit’s holding in this case, the district court 
would he constrained to deny the class members relief.

9 See, for example, Super Tire Engineering Go. v. McCorkle, 
416 U.S. 115 (1974).



5

Respectfully submitted,

J ack Greenberg 
J ames M. N abrit, III 
M orris J .  R aller 
B arry L. G oldstein 
E ric S ch n a pper

10 Columbus Circle
New York, New York 10019

J ohn  R . M yer

Crosland, Myer, Rindskopf & Terry 
2415 Nat’l Bank of Georgia Bldg.
34 Peachtree Street, N. W.
Atlanta, Georgia 30303

E lizabeth  R . R indskopf 
265 Church Street 
New Haven, Connecticut 06510

Attorneys for Petitioners



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