Littles v. Jefferson Smurfit Corporation (US) Respondent's Brief in Opposition

    No. 95-486

In The

Supreme Court of the United States
October Term, 1995

-----------------♦ -----------------

HERBERT LITTLES,
Petitioner, 

v.

JEFFERSON SMURFIT CORPORATION (U.S.),
Respondent.

-----------------♦ — - — ----------

On Petition For Writ Of Certiorari 
To The United States Court Of Appeals 

For The Eleventh Circuit

--------------- ♦ — — — —

RESPONDENT'S BRIEF IN OPPOSITION

-----------------♦ -----------------

Frank M cR ight 
Counsel of Record 
M cR ight, J ackson, Dorman, 

M yrick & M oore, L.L.C. 
Post Office Box 2846 
Mobile, Alabama 36652 
334-432-3334
Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 
OR CALL COLLECT (402) 342-2831



1

QUESTION PRESENTED

Did the United States Court of Appeals for the Elev­
enth Circuit correctly affirm the verdict of a racially div­
erse jury that Respondent Jefferson Smurfit Corporation 
(U.S.) did not intentionally discriminate against Peti­
tioner Herbert Littles in violation of 42 U.S.C. §§ 1981 or 
1982 when it declined to enter into a supplier contract 
with Littles?



11

PARTIES

The parties are:

Petitioner: Herbert Littles

Respondent: Jefferson Smurfit Corporation (U.S.) (here­
inafter referred to as "JSC"), a Delaware corporation.1

1 Rule 29.1 Listing: Subsequent to the commencement of 
this action, the named defendant, Container Corporation of 
America, was merged into JSC. JSC is a wholly-owned subsid­
iary of JSCE, Inc., a Delaware corporation and wholly-owned 
subsidiary of Jefferson Smurfit Corporation, a Delaware corpo­
ration that is publicly traded. JSC's subsidiaries, other than 
wholly-owned subsidiaries, are Smurfit Newsprint Corpora­
tion, a Delaware corporation; Groveton Paper Board, Inc., a 
New Hampshire corporation; and Dalton Paper Products, Inc., 
a Georgia corporation.



Ill

QUESTION PRESENTED. ................................................. i

PARTIES ...............................................   ii

TABLE OF CONTENTS .................................................... iii

TABLE OF AUTHORITIES..............................................  vi

OPINIONS BELOW............................................................ 1

STATEMENT OF THE CASE............................    2

I. JSC USES A DEALERSHIP SYSTEM TO 
ACQUIRE PULPWOOD AND DOES NOT 
CONTRACT DIRECTLY WITH WOOD PRO­
DUCERS LIKE LITTLES .........................   2

A. How the Dealership System Operates . . .  2

B. JSC's Business Reasons for Relying on the
Dealership System...................................  4

C. JSC Makes Supplier Contracts Only with
Firms Already in Business as Dealers.. . .  5

D. JSC's Policy of Limiting Contracts to Sup­
pliers Already in Business as Dealers Has
an Equal Impact on Blacks and Whites . . 6

E. Littles Is Not a Wood Dealer....................  7

F. JSC's “Dealers Only" Policy Does Not Pre­
vent Littles from Going into Business as a 
Dealer. .....................................   8

II. JSC HAS NOT CONTRACTED WITH ANY 
BUSINESS THAT IS SIMILARLY SITUATED 
TO LITTLES' BUSINESS..........................   9

SUMMARY OF ARGUMENT..........................................  12

ARGUMENT............................................................    14

TABLE OF CONTENTS
Page



IV

I. THE DECISIONS BELOW WERE CONSIS­
TENT WITH AND COMPELLED BY APPLI­
CABLE LAW............................................................ 14

A. Littles Failed Even to Establish a Prima Facie
Case of Intentional Discrimination. .......... . . 15

B. JSC's Standards for the Selection of Its
Wood Dealers Are Legitimate and Non- 
discriminatory..................................................  16

C. JSC's Reasons For Not Contracting with
Littles Are Not Pretexts For Discrimina­
tion ...............      16

II. THE ELEVENTH CIRCUIT'S DECISION
RAISES NO ISSUE THAT WARRANTS
REVIEW BY THIS COURT.................................  17

A. Littles Did Not Proffer Any Evidence of
Historical Discrimination by JSC in the 
Making of Supplier Contracts...................  17

B. Littles' New Argument That JSC Relies on
a "Grandfather Clause" Is Not Supported 
by the Evidence Presented or Proffered at 
Trial.................................................................... 19

C. The Settlement of Employment Discrimi­
nation Lawsuits Against Separate Corpo­
rate Divisions of JSC Are Irrelevant to 
Littles' Claim of Contractual Discrimina­
tion by JSC's Woodlands Division . . . . . . .  20

D. The District Court's Rulings With Respect
to Littles' "Evidence" of Discrimination in 
the Pulp and Paper Industry as a Whole 
Were Within the Court's Discretion.......... 23

TABLE OF CONTENTS -  Continued
Page



V

Page

E. This Case Presents No Conflict with Deci­
sions of this Court or of Other Circuits.. 24

F. The Fourteenth and Fifteenth Amendment
Cases Cited by Littles Are Irrelevant to this 
Lawsuit  ............... ........................... . 27

CONCLUSION..................................................................  28

TABLE OF CONTENTS -  Continued



VI

TABLE OF AUTHORITIES

C ases:

Asbury v. Brougham, 866 F.2d 1276 (10th Cir. 1989) . . . .  15

Bazemore v. Friday, 478 U.S. 385 (1986) . . .  22, 25, 26, 27

Beavers v. American Cast Iron Pipe Co., 975 F.2d 792
(11th Cir. 1992)............................. ....................................  26

Brown v. American Honda Motor Co., 939 F.2d 
946 (11th Cir. 1991), cert, denied, 502 U.S.
1058 (1992)....................................................  15, 16, 17, 25

Cannon v. Teamsters & Chauffeurs Union, 667 F.2d
173 (7th Cir. 1981)................................   17

City of Richmond v. Croson, 488 U.S. 469 (1989).......... 28

Crawford v. 'Western Electric Co., 745 F.2d 1373 (11th
Cir. 1984)...........................................................................  15

Delaware State College v. Ricks, 449 U.S. 250 (1980) . . . .  22
Forsberg v. Pacific Northwest Bell Telephone Co., 840 

F.2d 1409 (9th Cir. 1988), cert, denied, 502 U.S.
1058 (1992).........................................................................  25

General Building Contractors Assn. v. Pennsylvania,
458 U.S. 375 (1982)..................................................... 15, 24

Giles v. Ireland, 742 F.2d 1366 (11th Cir. 1984).......... 17

Griggs v. Duke Power Co., 401 U.S. 424 (1971).............  25

Guinn v. United States, 238 U.S. 347 (1915).................  20

Harpring v. Continental Oil Co., 628 F.2d 406 (5th
Cir. 1980), cert, denied, 454 U.S. 819 (1981)................. 22

Harrison v. Container Corp. o f America, Civ. No. 90-
T-016-N (M.D. Ala. 1990)..........................................20, 21

Hazelwood School District v. United States, 433 U.S.
299 (1977).......................................................................22, 28

Page



TABLE OF AUTHORITIES -  Continued
Page

Houston v. Benttree, Ltd., 637 F.2d 739 (10th Cir.
1980) , cert, denied, 451 U.S. 938 (1981)..................

Mayor v. Educational Equality League, 415 U.S. 605 
(1974).................................. ................................................

McDonnell-Douglas Cory. v. Green, 411 U.S. 792 
(1973)................................................................. 15, 16,

Meyers v. Ford Motor Co., 659 F.2d 91 (8th Cir.
1981) ............................................................................. 15,

Mitchell v. Jefferson County Board of Education, 936 
F.2d 539 (11th Cir. 1991)..............................

Myers v. Anderson, 238 U.S. 368 (1915).........................

Patterson v. McLean Credit Union, 491 U.S. 164 
(1989)...................................................................... .. .15,

Peightal v. Metropolitan Dade County, 26 F.3d 1545 
(11th Cir. 1994).................................................................

Randle v. LaSalle Telecommunications, Inc., 876 F.2d 
563 (7th Cir. 1989)..........................................................

Suggs v. Container Corp. of America, Civ. No. 
7058-72-P (S.D. Ala. 1974) ............................. . 20, 21,

Teamsters v. United States, 431 U.S. 324 (1977).............

Texas Dept, of Community Affairs v. Burdine, 450 
U.S. 248 (1981).......................................................

Webb v. Indiana National Bank, 931 F.2d 434 (7th 
Cir. 1991 )...........................................................................

Zaklama v. Mount Sinai Medical Center, 842 F.2d 291 
(11th Cir. 1988), cert, denied, 502 U.S. 1058 (1992)

15

27

25

20

26

20

16

28

15

22

20

16

26

16



V l l l

TABLE OF AUTHORITIES -  Continued
Page

Statutes and R ules

42 U.S.C. § 1981......................... . ....................... passim

42 U.S.C. § 1982.................................. 1, 13, 14, 15, 24, 27

Fed. R. Evid. 401................................................ ..................21

Fed. R. Evid. 403................................... . ............................ 21

Fed. R. Evid. 408.................................. ...............................21



RESPONDENT'S BRIEF IN OPPOSITION 

OPINIONS BELOW

A racially diverse jury found, after a week of trial-, 
that JSC's Brewton Woodlands Division did not inten­
tionally discriminate against Littles on the basis of race 
when JSC declined to enter into a supplier contract with 
him. [App. at 42a-43a] The jury reached this verdict after 
thorough instruction by the trial court regarding the law 
applicable under 42 U.S.C. §§ 1981 and 1982.2 The United 
States District Court for the Southern District of Alabama 
denied Littles' post-verdict motions and entered judg­
ment for JSC. [Id. at 44a-47a]

On appeal, the United States Court of Appeals for the 
Eleventh Circuit Court held per curiam that Littles' appeal 
of the denial of his motion for judgment as a matter of 
law was frivolous, "given the evidentiary record in this 
case." [Id. at 2a] The Eleventh Circuit also rejected Littles' 
arguments that the district court had abused its discretion 
in excluding evidence proffered by Littles, and affirmed 
the district court's denial of Littles' motion for a new 
trial. [Id.]

♦

2 Although Littles states that the district court rejected 
instructions proffered by Littles that would have permitted the 
jury to consider Littles' claims of "perpetuation of past discrimi­
nation," Littles does not identify what instructions he proffered 
that would have supposedly accomplished this purpose. [Peti­
tion at 8] Furthermore, Littles made no objection at trial with 
respect to any such purported jury instruction, and thus did not 
preserve any such alleged issue for appeal.

1



2

STATEMENT OF THE CASE
I. JSC USES A DEALERSHIP SYSTEM TO ACQUIRE 

PULPWOOD AND DOES NOT CONTRACT 
DIRECTLY WITH WOOD PRODUCERS LIKE LIT­
TLES.
A. How the Dealership System Operates

JSC's Brewton Woodlands Division must consistently 
supply JSC's Brewton Mill, a separate division of JSC, 
with approximately 2,000 cords (300 to 400 loads) of 
pulpwood per day, as necessary for the Mill to produce 
paper products. [R.6. 447-51, 530]

In order to meet its pulpwood needs, JSC Woodlands 
contracts with suppliers or "dealers," who function as 
wholesalers, for wood that the dealer sells. The dealer, in 
turn, contracts with "producers" who, like retailers, 
either sell wood they have purchased to the dealer or 
who cut and haul timber the dealer has purchased. Most 
wood dealers have subcontracts with a number of pro­
ducer crews that usually work for a single dealer. A 
typical producer, like Littles, operates with a single four- 
to nine-man crew. [R.5. 240-41, 262; R.6. 663, 713, 731, 737, 
836, 843-44]

Contrary to Littles' characterization, "producers" do 
not become "dealers" simply by virtue of their designa­
tion as such by a paper mill. [Petition at 3, 6] Instead, 
dealers and producers perform two fundamentally differ­
ent functions in the supply chain. Producers' essential 
function is cutting down trees and delivering wood as 
subcontractors to dealers. Dealers act as "middlemen" for



3

the goods and services of others, and their essential func­
tion is brokering the purchase and sale of the wood that 
is harvested by producers. In addition, dealers' activities 
include the building of logging roads, bridges, and 
culverts; financing equipment and timber purchases for 
producers; acquiring and marketing timber; coordinating 
and supervising the logging done by producers under 
subcontract; coordinating delivery to buyers; and main­
taining inventory either as standing timber that the 
dealer has already purchased and is ready to be cut or 
timber that has been cut and is stored in woodvards thatj
are owned or leased by the dealer. [R.6. 458-60, 476-77, 
495-98, 818-20]

Furthermore, the business character of the operations 
of dealers is fundamentally different from that of pro­
ducers. Dealers are independent, competitive businesses 
that contract with several different paper companies at 
the same time. A dealer's ability to attract a number of 
customers insures that the dealer will have other outlets 
for its wood if, for example, one of the mills with which 
the dealer contracts closes or temporarily limits its wood 
consumption during repairs or maintenance. [R.6. 774]

The operation of a dealership requires considerably 
more capital than running a production crew. Hundreds 
of thousands of dollars can be put at risk in a single 
transaction, and no return can be expected on such an 
investment for months or years. [R.6. 460, 477, 694, 767] 
In contrast, the producer gets paid as the producer's 
work is done, carries no "float," and takes no market risk 
if, as is usual, the producer is paid a predetermined price 
for each cord of wood he produces. [R.6. 477-78] Dealers



4

generally pay their producers at the end of each week, or 
as the producer delivers wood to buyers. [R.6. 643, 769]3

B. JSC's Business Reasons for Relying on the 
Dealership System.

The jury in this case heard testimony from JSC's 
procurement manager, eight dealers, an expert in the 
timber procurement area, and a successful producer 
regarding the advantages of the dealership system for 
supplying a pulp and paper mill reliably and economi­
cally. Their testimony established that the dealership sys­
tem is responsive to market conditions and avoids 
centralization of administrative and operational respon­
sibilities, burdens, and costs.

Their testimony also established that, if JSC contrac­
ted directly with the 250 roundwood producers that cur­
rently haul pulpwood to JSC, rather than contracting with 
its current 35 to 40 roundwood dealers, JSC would have 
to hire (and pay) ten times the number of its current 
employees to perform the forestry, road-building, 
accounting, payroll, clerical, and administrative opera­
tions currently performed by dealers more efficiently and 
effectively than a paper company can with its own 
employees. [R.6. 431, 471-72, 580-82, 700-01, 723-24,

3 Littles' allegation that he must "pay" a commission to 
dealers who sell the wood he hauls to JSC is false. [Petition at 5 
& n.4] In fact, dealers make their profits by paying producers 
less than the dealer receives from the wood buyer, similar to 
how profits are made any wholesale-retail arrangement, and 
producers do not "pay" money to dealers for the wood they 
haul under contract with the dealer. [R.5. 200-01]



5

765-769] Instead of spreading the cost of such operations 
among a number of dealers and the various paper com­
panies to which those dealers sell wood, JSC would have 
to pay for all such operations for all producers hauling 
wood to JSC. JSC would have no more "middlemen" to 
assume responsibility for a steady supply of wood to the 
Mill from producers with varying degrees of reliability. 
JSC, rather than dealers, would have to maintain the 
numerous woodyards necessary to inventory wood for 
use when the flow of wood direct from the woods is 
inadequate due to bad weather or equipment failure. JSC, 
rather than dealers, would have to insure compliance by 
each such small producer with applicable Environmental 
Protection Agency, Alabama Department of Environmen­
tal Management, and other legal, insurance, and forestry 
standards, and demands for timely payment to producers 
and landowners. JSC, rather than dealers, would have to 
handle complaints from and defend lawsuits by land- 
owners and others regarding the logging practices and 
operations of small producers. [R.6. 467-68, 471, 495-98, 
717, 723-24, 767-70, 774-75, 839-40]

C. JSC Makes Supplier Contracts Only with Firms 
Already in Business as Dealers.

JSC does not make wood supplier contracts with 
businesses that are not already in business as dealers, nor 
does it enter into supplier contracts with persons who, 
like Littles, operate as producers. [R.5. 442; R.6. 463-64] 
Neither does JSC contract with any business that moves 
as little roundwood volume as Littles does. [R.6. 487-88]



6

JSC's business judgment to contract only with dealers 
has proven through the years to be well-founded. Many 
companies that have tried to operate without a dealership 
system have abandoned such attempts, have been forced 
to pay more for their wood supply, or have found it 
necessary to supplement their wood supply with wood 
purchased from wood dealers [R.5. 228-30; R.6. 724, 
743-44, 769-70, 836-37],

D. JSC's Policy of Limiting Contracts to Suppliers 
Already in Business as Dealers Has an Equal 
Impact on Blacks and Whites.

In recent years, higher equipment and insurance 
costs, as well as the need for greater efficiency, have 
caused JSC to rely increasingly on dealers with larger 
operations and capacities. [R.5. 244-46; R.6. 475-76, 
479-80, 775-76, 813, 815-17] JSC was able to reduce its 
own overhead costs by contracting more with larger 
dealers and, thus, reducing the number of dealers with 
which JSC did business. [R.6. 479-80]

Since the early 1980's, JSC's Brewton Woodlands 
Division has refused to enter into supplier contracts with 
at least 35 producers (only two of whom were black). 
[R.6. 483-87] Most of the producers who were refused 
contracts run larger operations than Littles does. [R.6. 
487] In addition, the 23 white-owned companies already 
in business as dealers, with which JSC also refused to 
contract during the same time period, includes several 
companies that move over 2,000 cords of roundwood 
each week. [R.6. 485]



7

During that same time period, as a result of its con­
solidation of its supplier contracts with larger dealers, 
JSC terminated the contracts of approximately 45 round- 
wood dealers, all of which were white-owned businesses 
and were larger than Littles' business. [R.6. 482-83] As a 
result of JSC's policy of limiting its supplier contracts to 
larger dealers, the number of JSC's roundwood suppliers 
was reduced from 65 in 1984, to less than 40 by the time 
of trial. [R.6. 478-79]

When JSC was dealing directly with a larger number 
of businesses, JSC purchased wood chips from several 
chipmills owned by black persons. [R.6. 562-63] There 
are, however, no black persons currently in business as 
dealers in the Brewton area. [R.5. 189] At the time of trial, 
there were only two or three black producers in the 
Brewton area. [R.5. 227, 247]

E. Littles Is Not a Wood Dealer.

Littles is a producer, not a dealer. [R.5. 121, 230-31; 
R.6. 745-46] Littles asserted at trial, as he does in his 
Petition, that the dealer's role is only "nominal" with 
respect to the procurement and sale of the wood he 
produces, because Littles purchases his own timber 
resources rather than having a dealer perform the pro­
curement function for him. [Petition at 5] The over­
whelming evidence was to the contrary, and established 
the variety of other functions performed by the dealer, as 
well as the business economies inherent in JSC's dealer­
ship system, as described above. In any event, there was



8

no evidence that JSC has made or would make an excep­
tion to its "dealers only" policy for a white producer, 
even if that producer bought 100% of his pulpwood.

F. JSC's "Dealers Only" Policy Does Not Prevent 
Littles from Going into Business as a Dealer.

Littles' assertion that JSC "froze" dealer contracts in 
1979 and now contracts only with businesses formed 
prior to that time is false. [Petition at 5-6] Instead, the 
evidence at trial established that JSC made thirteen new 
roundwood supplier contracts during the relevant statute 
of limitations period, some of which did not even exist 
prior to 1979. For example, the jury in this case heard 
testimony from the owner of Mobile Forest Products, a 
company that was established in 1984. The owners of 
Mobile Forest Products mortgaged everything they had 
in addition to raising $175,000 from an investor, and 
currently have $2.4 million invested in the company. [R.6. 
811, 829-30]

Similarly, Littles' assertion that dealerships are usu­
ally acquired through inheritance within white families is 
false. [Petition at 6 & n.8] In fact, the jury in this case 
heard testimony regarding a variety of ways in which 
dealerships may be acquired or formed, including by 
expansion of logging operations like Littles'. [R.6. 546-48, 
694-95, 721-22, 834-35] For example, Carter Pulpwood 
was purchased in 1968 for $20,000. [R.6. 674-75] Bracewell 
& Grant was purchased in 1964 for $25,000, with a subse­
quent purchase of woodyards for $100,000 in 1967. [R.6. 
720-21] Branco Wood Products was purchased for about 
$100,000 in 1975. [R.6. 849] Littles' failure to establish,



9

buy, or expand into a dealer business is not JSC's respon­
sibility. The simple fact is that, unlike the dealers who 
testified at trial, Littles has never risked the capital neces­
sary to buy or start a dealership. [R.5. 250]

II. JSC HAS NOT CONTRACTED WITH ANY BUSI­
NESS THAT IS SIMILARLY SITUATED TO LIT­
TLES' BUSINESS.

Throughout this litigation and at trial, Littles identi­
fied Claude Alford as the best "comparator" in his efforts 
to prove that JSC made pulpwood purchase contracts 
with less qualified suppliers than himself. [R.l. #22 at 2, 
#40 at 2, #46 at 3-4; R.2. #69 at 11-12; R.5. 223-24, 307, 
315-16] The undisputed evidence established, however, 
that during the period when he was still in business as a 
producer, Alford tried repeatedly and unsuccessfully to 
obtain a supplier contract from JSC. Like Littles, Alford 
was repeatedly refused a supplier contract. Then, in 1986, 
Alford bought Tri-State Timber Co., a dealership that 
already had a supplier contract with JSC, investing over 
$130,000 from profits from his logging business to finance 
the purchase. [R.6. 505-06, 508, 634, 636]

Tri-State's supplier contract with JSC was already at 
least two years old when Alford bought the company in 
1986. [R.6. 501-04] At the time of Alford's purchase, Tri- 
State had an established annual wood flow of about $2.5 
million worth of timber [R.6. 503], skilled foresters on the 
payroll [R.6. 638], supplier contracts with several pulp 
and paper companies [R.6. 62930], three longwood crews, 
several shortwood crews [R.6. 639], and two woodyards 
[R.5. 394-95].



10

Even before Alford's acquisition of Tri-State in 1986, 
Alford's operations and capacities as a producer were 
demonstrably superior to those of Littles, Alford's aver­
age weekly wood volume during the five years prior to 
his acquisition of Tri-State in 1989 was about three times 
what Littles was producing at that time. [R.6. 506-07; DX 
21 & 22] Littles' gross receipts in 1986, when Alford 
acquired Tri-State, were less than half of Alford's. [R.5. 
323-24; DX 31 & 32] Littles' equipment is old and in 
frequent need of repair, and was worth less than one 
tenth (1/10) of the value of Alford's equipment prior to 
his acquisition of Tri-State. [R.5. 294-95; DX 21 & 27] 
Furthermore, Alford's acquisition of Tri-State dramati­
cally increased his production capacity. [R.6. 511-12]

Littles has only one logging crew of five to six 
employees [R.5. 240-41, 262], produces longwood, rather 
than shortwood [R.6. 517], and produces mostly pine, 
rather than hardwood [R.6. 498-99, 517], His production 
averages 150 cords per week [R.5. 261-62, DX 15], about 
90 cords of which is pulpwood [R.6. 516, DX 15]. Littles 
only operates locally in the Brewton area [R.5. 296], and 
has no business relationships with landowners in other 
areas of the state where hardwood primarily grows. [R.5. 
300-01] Practical considerations of landowner relation­
ships and transportation time and costs limit a producer's 
ability to produce outside a 30- to 50-mile radius of his 
base of operations. [R.5. 166, 295-01; R.6. 543-44, 668, 682, 
845-46]

Furthermore, unlike typical dealers, Littles does not 
employ any professional foresters to take responsibility 
for pricing and purchasing wood on a full-time basis.



11

[R.5. 268, 402; R.6, 476] Littles' testimony at trial demon­
strated that he is unfamiliar with the skills and tools used 
in "cruising timber" to estimate its value and submit 
competitive bids. [R.5. 268-71; R.6. 463] Littles is also 
unfamiliar with the Alabama Forestry Association's "Best 
Management Practices," which timber professionals must 
follow in Alabama for conservation and ecological rea­
sons. [R.5. 276; R.6. 459, 474-75] Littles' liability insur­
ance, without which he cannot operate as a producer, has 
been repeatedly canceled for non-payment of premiums, 
including on one occasion only a month before trial. [R.5. 
335-40]

The jury in this case heard testimony from eight 
dealers with which to contrast Littles' qualifications. For 
example, Bracewell & Grant has 35 office employees and 
three foresters on its payroll. Its volume is from 1,500 to 
1,900 cords per week. [R.6. 713-16] Southern Timber pro­
duces 2,000 cords per week using eight crews. [R.6. 738] 
Mobile Forest Products produces 6,000 cords per week 
using ten crews. [R.6. 811-12] Branco Wood Products pro­
duces 800 cords per week and maintains six months' 
timber inventory using three longwood crews and six 
shortwood crews. [R.6. 849-51]

The evidence established that all of the thirteen sup­
plier contracts made by JSC during the statute of limita­
tions period from October 1989 until the date of trial were 
with established dealers (rather than producers like Lit­
tles), which had qualifications and capabilities neither 
possessed nor even claimed by Littles. Each of those 
thirteen dealers had demonstrated ability to buy timber 
outside the Brewton area where there is a higher concen­
tration of hardwood, and to deliver short hardwood by



12

rail or long hardwood to JSC's outlying woodyards for 
slashing. [R.6. 454-55, 488-99] All maintained timber 
inventory in their own woodyards. [R.6. 497-98] Each of 
these thirteen dealers has a total pulpwood volume much 
greater than Littles'. [R.6. 488-97, 591-97; DX 17-20 & 31]

Littles' volume is also much lower than the volume 
of many of the suppliers with which JSC has refused to 
contract. [R.6. 487] For example, the owner of Conecuh 
Timber Co. testified that he has a volume of 4,000 cords 
per week using ten crews, and that he has been turned 
down repeatedly for a JSC supplier contract. [R.6. 834-39]

As noted earlier, Littles wants to produce roundwood 
in the Brewton area. JSC has not made any contracts for 
the delivery of truckwood direct to the mill in Brewton, 
as Littles seeks to do, during any period relevant to this 
lawsuit. [R.6. 544] Nor has JSC made a contract for the 
delivery of primarily pine pulpwood, the species that 
Littles primarily produces because of his location. [R.6. 
517, 545] None of the thirteen dealers that JSC added 
during the several years prior to trial is based within a 
60-mile radius of Brewton, and JSC did not even consider 
any new dealers in the Brewton area. [R.6. 488, 546]

-----------------♦ ------------ -----

SUMMARY OF ARGUMENT

Littles' Petition for Certiorari is based on premises 
that falsely portray the facts and law at issue in this case. 
Specifically, Littles' characterization of JSC as a company 
that "froze" its contracts prior to 1979, intentionally 
excluded blacks from such contracts prior to 1979, and 
now only contracts with dealerships and the white heirs



13

of dealerships with which it contracted prior to 1979, is 
unrecognizable from the record. In fact, the evidence at 
trial established that JSC made new supplier contracts 
during the relevant time period with thirteen established 
dealerships. Each such dealership had capabilities that 
Littles does not have and does not even argue that he has. 
The evidence at trial also established that Littles has 
never risked the capital necessary to buy, start, or expand 
into the type of large, competitive dealership company 
with which JSC exclusively contracts.

Furthermore, Littles did not proffer any evidence 
whatsoever that would have been probative of "past 
intentional discrimination" by any corporate division of 
JSC in the making of wood supplier contracts or in any 
other respect. On the contrary, the uncontroverted evi­
dence at trial affirmatively demonstrated that JSC's 
Brewton Woodlands Division contracted directly with 
black-owned businesses for the purchase of wood prod­
ucts prior to implementation of its policy of reducing the 
total number of its supplier contracts in the mid-1980's. 
Accordingly, Littles' challenge to the district court's hold­
ing that claims of "perpetuation of past discrimination" 
are not actionable under 42 U.S.C. §§ 1981 and 1982 is not 
only legally unfounded, it also raises issues that are not 
even presented by this case.

In addition, the "evidence" of "past discrimination" 
excluded by the district court consisted of Littles' proffer 
of (1) testimony alleging past discrimination by the 
Southern pulp and paper industry, in the form of an 
affidavit which did not even mention JSC, by a historian 
with no familiarity with JSC's contracting practices; (2) 
testimony by a black producer that a paper mill unrelated



14

to JSC had refused him a supplier contract; and (3) testi­
mony regarding two dissimilar lawsuits brought by Lit­
tles' attorney against a separate division of JSC, both of 
which were settled with no admission of discrimination. 
The district court's exclusion of this "evidence" was 
properly based on considerations of relevance, prejudice, 
undue delay, waste of time, and the potential for jury 
confusion.

Finally, the law applied by the district court and the 
Eleventh Circuit in this case does not present any conflict 
with the decisions of this Court or of other federal cir­
cuits, or any question of federal law that has not been 
settled by this Court. Instead, Littles' arguments in this 
respect are based on comparisons of false characteriza­
tions of the holdings below with cases addressing ques­
tions that are not at issue in this appeal, and on citations 
to voting rights and school desegregation cases decided 
under Constitutional standards that are not applicable to 
this case under 42 U.S.C. §§ 1981 and 1982.

— ------------ ♦ ---------—

ARGUMENT
I. THE DECISIONS BELOW WERE CONSISTENT

WITH AND COMPELLED BY APPLICABLE LAW.

In Section I of his Argument, Littles cites various 
historical and statistical sources regarding the importance 
of the timber industry to the Southern economy. [Petition 
at 9-15] Based on these citations Littles argues that the 
timber industry is "significant," but does not (and can­
not) identify any legal issue raised by this case that is



15

"significant," as appropriate to warrant review by this 
Court.

Indeed, Littles' Petition does not even address the 
law that is applicable to this case under 42 U.S.C. §§ 1981 
and 1982, as set out in McDonnell-Douglas Corp. v. Green, 
411 U.S. 792, 802 (1973). See Patterson v. McLean Credit 
Union, 491 U.S. 164, 186 (1989); Brown v. American Honda 
Motor Co., 939 F.2d 946, 949 (11th Cir. 1991), cert, denied, 
502 U.S. 1058 (1992); Asbury v. Brougham, 866 F.2d 1276, 
1279 (10th Cir. 1989); Crawford v. Western Electric Co., 745 
F.2d 1373, 1376 (11th Cir. 1984); accord Randle v. LaSalle 
Telecommunications, Inc., 876 F.2d 563 (7th Cir. 1989); 
Meyers v. Ford Motor Co., 659 F.2d 91 (8th Cir. 1981); 
Houston v. Benttree, Ltd., 637 F.2d 739 (10th Cir. 1980), cert, 
denied, 451 U.S. 938 (1981). Under these cases, a plaintiff is 
required to prove intentional discrimination to prevail in 
an action under 42 U.S.C. §§ 1981 and 1982. See also 
General Building Contractors Assn. v. Pennsylvania, 458 U.S. 
375, 391 (1982).

A. Littles Failed Even to Establish a Prima Facie 
Case of Intentional Discrimination.

Littles is not a wood dealer. Instead, Littles' only 
business is and always has been as a "producer." The 
only dealers that JSC contracted with during the relevant 
period prior to this action were large, established dealer­
ships with particular qualifications and capabilities that 
met specific needs of JSC in terms of species of product, 
location outside of the Brewton area, and/or mode of 
delivery. The undisputed evidence established that Littles 
had none of these qualifications. Accordingly, Littles did



16

not meet even the minimum qualifications for a contract 
with JSC, and Littles failed to establish even a prima facie 
case of discrimination. See McDonnell-Douglas Corp. v. 
Green, 411 U.S. 792, 802 (1973); Brown v. American Honda 
Motor Co., 939 F.2d 946, 949 (11th Cir. 1991) (citing Patter­
son v. McLean Credit Union, 491 U.S. 164, 187 (1989); 
Zaklama v. Mount Sinai Medical Center, 842 F.2d 291, 293 
(11th Cir. 1988)), cert, denied, 502 U.S. 1058 (1992).

B. JSC's Standards for the Selection of Its Wood 
Dealers Are Legitimate and Nondiscriminatory.

Even if Littles had been able to establish a prima 
facie case, JSC established legitimate nondiscriminatory 
reasons for its decision not to contract with him. Texas 
Dept, of Community Affairs v. Burdine, 450 U.S. 248, 254-55 
(1981); Brown, 939 F.2d at 949. The evidence was over­
whelming that JSC's policy of contracting only with 
dealers and for not contracting with Littles (even if he 
had been in business as a dealer) was both rational and 
nondiscriminatory.

C. JSC's Reasons For Not Contracting with Littles 
Are Not Pretexts For Discrimination.

As demonstrated by the evidence at trial and 
described above, a comparison of Littles' qualifications 
with those of the dealers with which JSC contracts does 
not support Littles' claims of pretext. In particular, Littles 
alleged throughout the pre-trial proceedings and at the 
trial of this matter that Claude Alford, the owner of Tri- 
State Timber Co., is the dealer most comparable to Littles.



17

As established by the evidence at trial, however, any 
similarity between Littles' operations and Alford's ends 
with the facts that they both work in the timber industry 
and that, before Alford acquired an existing dealership 
business, both were denied supplier contracts by JSC.

Furthermore, the equal impact of JSC's policies on 
whites precludes a finding of pretext. JSC's selection cri­
teria have resulted in refusals of supplier contracts to at 
least 58 white-owned businesses and only 2 black-owned 
businesses. In addition, JSC terminated 45 roundwood 
dealerships from 1984 to 1991, and the total number of 
roundwood dealerships declined from 65 to only 40. Most 
of these terminated dealerships had qualifications supe­
rior to those of Littles, and all were white-owned busi­
nesses. "It is difficult to hold that a practice which affects 
applicants of all races in the same manner is actually 
designed to conceal a racially discriminatory motive." 
Brown, 939 F.2d at 952 (citing Giles v. Ireland, 742 F.2d 
1366, 1375-76 (11th Cir. 1984) (hiring criteria which affect 
both blacks and whites equally are not discriminatory); 
Cannon v. Teamsters & Chauffeurs Union, 667 F.2d 173, 
176-77 (7th Cir. 1981) (same)).

II. THE ELEVENTH CIRCUIT'S DECISION RAISES
NO ISSUE THAT WARRANTS REVIEW BY THIS
COURT.
A. Littles Did Not Proffer Any Evidence of Histor­

ical Discrimination by JSC in the Making of 
Supplier Contracts.

Littles asserts that the courts below never addressed 
his contention that JSC had "an intentionally discrimina­
tory policy of selecting only whites as dealers" prior to



18

1979. [Petition at 6] Based on this assertion, Littles makes 
the ludicrous argument (without citation to authority) 
that his contention of such a past policy of discrimination 
"must be assumed to be true" for the purposes of his 
Petition for Certiorari. [Id.] In fact, the reason the courts 
below never addressed this allegation was because Littles 
never proffered any evidence to support it.

Indeed, the only evidence on the issue of JSC's histor­
ical contracting practices demonstrated that prior to the 
1980's, when JSC was dealing directly with a larger 
number of wood suppliers, JSC contracted directly with 
several black businessmen for the purchase of wood 
products. [R.6. 562-63] Accordingly, not only was there no 
evidence that JSC had "a past policy of discrimination," 
the uncontroverted evidence affirmatively demonstrated 
that JSC did not have an intentionally discriminatory 
policy or practice with respect to its supplier contracts.

Thus, the factual linchpin upon which all of Littles' 
arguments in his Petition depends simply does not exist. 
Since Littles never proffered any evidence whatsoever 
that JSC had a past policy of discrimination with respect 
to its supplier contracts, Littles' arguments that the trial 
court erroneously excluded such evidence, that JSC has 
an affirmative obligation to eliminate the effects of such a 
past policy, and that such a past policy warrants ignoring 
the fact that Littles is utterly unqualified for a supplier 
contract with JSC, raise issues that are not presented by 
the facts of this case, in addition to being legally 
unfounded.



19

B. Littles' New Argument That JSC Relies on a 
"Grandfather Clause" Is Not Supported by the 
Evidence Presented or Proffered at Trial.

Littles argues in his Petition that JSC's "dealers only" 
policy since the mid-1980's amounted to a "freeze" 
imposed by JSC on new supplier contracts "at some point 
prior to 1979." [Petition at 5-6] Based on this new and 
unsupported allegation, Littles argues that JSC's dealer­
ship system "assures with almost mathematical preci­
sion" that blacks "will never even be considered for one 
of its dealer contracts." [Id. at 12 & 14]

This is the first time in this lawsuit that Littles has 
relied on this characterization of JSC's dealer-selection 
policies. Giving Petitioner the benefit of the doubt, this 
new characterization, made for the first time to this 
Court, appears to be based on a misapprehension by 
Littles' new counsel of the testimony at trial. [See id. at 5-6 
(citing "Tr. 442, 464, 578")] At the cited pages, JSC's wood 
procurement manager testified that JSC has a policy of 
contracting only with companies in business as wood 
dealers. There is no evidence that JSC has ever had a 
policy of restricting its contracts to companies that had a 
contract with JSC or another pulp and paper company 
prior to 1979. In fact, the uncontroverted evidence at trial 
demonstrated that JSC entered into thirteen new supplier 
contracts during the relevant statute of limitations 
period, including with companies that were not even 
established until after 1979.

Accordingly, Littles' argument that the JSC's "dealers 
only" policy amounts to an "infamous grandfather 
clause" of the type addressed in inapplicable voting



20

rights cases decided by this Court in 1915, Guinn v. United 
States, 238 U.S. 347 (1915), and Myers v. Anderson, 238 U.S. 
368 (1915), is entirely without factual foundation in the 
record in this case. [See Petition at 12, 20-21 & n.4Q]

C. The Settlements of Employment Discrimina­
tion Lawsuits Against Separate Corporate Divi­
sions of JSC Are Irrelevant to Littles' Claim of 
Contractual Discrimination by JSC's Wood­
lands Division.

As noted above, Littles offered no evidence to contro­
vert the fact that JSC's Woodlands Division has never had 
a policy of excluding blacks from consideration for a 
supplier contract and has contracted with black-owned 
businesses for the supply of wood products. Instead, 
Littles proffered evidence at trial regarding two lawsuits 
previously brought by Littles' attorney against a separate 
corporate division of JSC, both of which were settled 
without any admission of discrimination by JSC. [Petition 
at 13 & n.27] See Harrison v. Container Cory, of America, 
Civ. No. 90-T-016-N (M.D. Ala. 1990); Suggs v. Container 
Corp. o f America, Civ. No. 7058-72-P (S.D. Ala. 1974). The 
Suggs case relied on a disparate impact theory to chal­
lenge JSC's seniority system at its Brewton Mill.4 The 
Harrison case also was a Title VII employment discrimina­
tion case, and challenged promotion practices at the Mill.

4 Significantly, the disparate impact theory relied on by the 
plaintiffs in the Suggs case was specifically rejected by this 
Court four years after the settlement. See Teamsters v. United 
States, 431 U.S. 324 (1977).



21

The central issue in this case is whether JSC's Wood­
lands Division intentionally discriminated against Littles 
in declining to make a wood supplier contract with him. 
Accordingly the trial court concluded that evidence of 
unproven claims resolved in the Suggs and Harrison set­
tlements would inject issues relevant to unintentional 
employment discrim ination (including "disparate 
impact" theory) that are not relevant in this case alleging 
intentional contract discrimination, relative to persons 
not involved in this case, against a separate corporate 
division of JSC, and with regard to alleged discriminatory 
actions that are dissimilar to those alleged in this case, 
and would confuse the issues and mislead the jury. See 
Fed. R. Evid. 403 (relevant evidence may be excluded "if 
its probative value is substantially outweighed by the 
danger of unfair prejudice, confusion of the issues, or 
misleading the jury").

In addition, evidence of unproven claims of employ­
ment discrimination asserted and resolved the Suggs and 
Harrison lawsuits against the Brewton Mill would not 
make Littles' allegation in this case that he was discrimi­
nated against by the Woodlands Division in the making of 
supplier contracts any more or less probable. Accord­
ingly, such evidence was irrelevant and inadmissible. Fed. 
R. Evid. 401; cf. Fed. R. Evid. 408 (evidence regarding 
settlement is not admissible to prove liability for the 
claims settled). Accordingly, the district court excluded 
evidence regarding the existence and settlement of both 
cases, but allowed limited testimony regarding the 
employment practices at the Mill that were contempora­
neous with Littles' solicitations of a supplier contract 
with the Woodlands Division. [App. at 31a-32a]



22

The district court also excluded evidence regarding 
employment practices by JSC in its separate Mill division 
in the 1960's. [App. at 32a] In particular, Littles proffered 
testimony by a Mill employee that no blacks worked in 
certain Mill departments in 1966. [R.5. 87-88] This prof­
fered testimony of alleged employment discrimination in 
job assignment by a separate corporate division of JSC 
addressed conditions that were conclusively remedied by 
a settlement that Littles' attorney agreed to twenty years 
ago. The class action consent decree in the Suggs case 
specifically provided that "[c]ompliance with this Decree 
shall be deemed compliance with Title VII and 42 U.S.C. 
§ 1981 with respect to said individuals and said class." Cf. 
Hazelwood School District v. United States, 433 U.S. 299, 
309-10 n.15 (1977) ("[Evidence of historical discrimina­
tion] might in some circumstances support the inference 
that such discrimination continued, particularly where rele­
vant aspects o f the decision-making process had undergone 
little change.") (emphasis added); accord Bazemore v. Fri­
day, 478 U.S. 385, 402 (1986).

In addition, allowing such evidence would have 
potentially prejudiced the jury and would have delayed 
the trial and wasted the district court's time by forcing 
JSC to respond with lengthy rebuttal evidence just as 
though it were trying allegations of discrimination that, if 
they ever had any foundation at all, have long since been 
resolved. See, e.g., Delaware State College v. Ricks, 449 U.S. 
250, 256-57 (1980) (the purpose of limitations periods is to 
"protect employers from the burden of defending claims 
arising from employment decisions that are long past"); 
Harpring v. Continental Oil Co., 628 F.2d 406 (5th Cir. 1980) 
(district court properly excluded relevant testimony



23

where evidence "would involve trying another lawsuit 
within the existing lawsuit"), cert, denied, 454 U.S. 819 
(1981).

D. The District Court's Rulings With Respect to 
Littles' "Evidence" of Discrimination in the 
Pulp and Paper Industry as a Whole Were 
Within the Court's Discretion.

Littles also relies in his Petition on cases alleging 
unintentional "disparate impact" discrimination in 
employment that were filed in the 1960's and 1970's 
against pulp and paper companies other than JSC. [Peti­
tion at 13 & n.25] "Evidence" regarding the cases cited by 
Littles was not proffered at trial, and, obviously, would 
properly have been excluded on grounds of relevance 
had it been offered.

The "evidence" of "past discrimination" by the pulp 
and paper industry as a whole that was proffered by 
Littles at trial consisted of (1) expert testimony regarding 
"historical" discrimination by the Southern pulp and 
paper industry that did not even mention JSC as a partici­
pant in such discrimination or otherwise [App. at 
32a-33a; R.2. 66; R.5. 9-11, 279-89; R.6. 804; CX 1], and (2) 
testimony by a black producer that a paper mill unrelated 
to JSC had refused him a supplier contract [R.6. 747-48]. 
Again, Littles proffered no evidence whatsoever to rebut 
the fact that JSC had contracted with black-owned busi­
nesses for the supply of wood products prior to imple­
mentation of its policy of contracting with a fewer 
number of larger dealers. This evidence affirmatively



24

demonstrated that JSC did not have a history of discrimi­
nation with respect to its supplier contracts.

The district court's exclusion of Littles' proffered 
"evidence" was properly based on considerations of rele­
vance, prejudice, undue delay, waste of time, and the 
potential for jury confusion. [App. at 32a-33a; R.6. 747-48] 
The confusion and waste of judicial time and resources 
inherent in the presentation of evidence regarding Littles' 
allegations against the entire pulp and paper industry, in 
the context of this lawsuit alleging intentional discrimina­
tion by JSC's Woodlands Division, are apparent. Even the 
strongest possible evidence of discrimination by other 
companies would not be probative of discrimination by 
JSC, and would have tended to confuse and mislead the 
jury into thinking it could find intentional discrimination 
by JSC based on even unintentional discrimination by 
another company.

E. This Case Presents No Conflict with Decisions 
of this Court or of Other Circuits.

Littles argues that the district court erred in holding 
that his allegation of JSC's "knowing perpetuation of past 
discrimination" failed to state a claim under §§ 1981 or 
1982, and that this holding was "flatly inconsistent with 
reported decisions of this Court and of the other courts of 
appeal." [Petition at 7 & 16] On the contrary, the prece­
dent is well established that Littles' "knowing perpetua­
tion" claim is a "disparate impact" claim that is not 
actionable under 42 U.S.C. §§ 1981 and 1982. E.g., General 
Building Contractors Assn. v. Pennsylvania, 458 U.S. 375 
(1982) (plaintiff must prove intentional discrimination to



25

establish a violation of § 1981); Broivn v. American Honda 
Motor Co., 939 F.2d 946, 953 (11th Cir. 1991) ("[I]t is not 
sufficient to show that the defendant was aware that the 
particular practice would have a discriminatory impact. 
Instead, the plaintiff must show that the defendant chose the 
policy for precisely this purpose." (emphasis added); citing 
Forsberg v. Pacific Northwest Bell Telephone Co., 840 F.2d 
1409, 1418 (9th Cir. 1988)), cert, denied, 502 U.S. 1058 
(1992). Compare Griggs v. Duke Power Co., 401 U.S. 424, 430 
(1971) ("disparate impact" model of proof addresses 
practices challenged under Title VII that are "neutral on 
their face, and even neutral in terms of intent," but that 
have the incidental effect of disadvantaging blacks to a 
greater degree than whites) (emphasis added), with 
McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973) 
("disparate treatment" model of proof addresses inten­
tional discrimination).

Littles attempts to circumvent these well-settled prin­
ciples with a convoluted interpretation of Bazemore v. 
Friday, 478 U.S. 385 (1986), and the district court's anal­
ysis of that decision in this case. [Petition at 16-17] Con­
trary to Littles' mischaracterization, the district court did 
not state that Littles' claims would be compelling if 
Bazemore were applicable. [Id. at 16 (citing App. 26a)] 
Instead, the district court stated at the cited page that 
Littles' claims would be more compelling if this were a 
disparate impact case, without citation to Bazemore.

Littles also describes several decisions of various cir­
cuit courts of appeals that have followed Bazemore as 
"flatly inconsistent with" the lower courts' decisions in 
this matter. [Petition at 17-19 & nn.28-39] Each of the 
cited cases involves the "continuing violation" theory



2 6

that has been developed, based on Bazemore, to address 
statute-of-limitations defenses in discrimination cases 
and to allow consideration of otherwise time-barred evi­
dence in cases where the "continuing violations" theory 
applies. Bazemore’s "continuing violation" theory is not at 
issue in this appeal. On the contrary, the jury in this case 
found in favor of Littles with respect to JSC's statute-of- 
limitations defense. [App. at 42a]

Furthermore, the cases cited by Littles are entirely 
consistent with Eleventh Circuit law. Like the cases cited 
by Littles as "flatly inconsistent," the Eleventh Circuit 
applies the "continuing violation" theory both in cases 
alleging unintentional and intentional discrimination. 
Compare, e.g., Beavers v. American Cast Iron Pipe Co., 975
F.2d 792, 796-97 (11th Cir. 1992) (applying "continuing 
violation" theory in disparate impact case), with Mitchell 
v. Jefferson County Board of Education, 936 F.2d 539, 548 
(11th Cir. 1991) (applying "continuing violation" theory 
in Equal Pay Act case alleging intentional discrimina­
tion). Indeed, one of the decisions cited by Littles as 
"flatly inconsistent with" Eleventh Circuit law has been 
specifically followed by the Eleventh Circuit. See Beavers, 
975 F.2d at 796 (following Webb v. Indiana National Bank, 
931 F.2d 434, 438 (7th Cir. 1991)). [See Petition at 17-18 & 
nn.30 & 33] Accordingly, Littles' purported conflict 
among the circuits is not only irrelevant, it is non­
existent.

In any event and as noted above, the only "evidence" 
proffered by Littles of "past discrimination" that JSC 
allegedly "knowingly perpetuated" consisted of vague 
testimony regarding discrimination in the pulp and paper



27

industry other than by JSC's Woodlands Division. In con­
trast, the evidence offered in Bazemore related to discrimi­
nation by the same employer at issue. Accordingly, Littles' 
garbled characterization of Bazemore would not make Lit­
tles' proffered "evidence" admissible or his legal argu­
ments defensible, even if that characterization were 
accurate.

F. The Fourteenth and Fifteenth Amendment 
Cases Cited by Littles Are Irrelevant to this 
Lawsuit.

Instead of discussing the many cases decided under 
42 U.S.C. §§ 1981 or 1982, which are dispositive of this 
case, Littles cites a number of school desegregation and 
voting rights cases that arise under the fourteenth and 
fifteenth amendments. [Petition at 19-20] The analyses 
applicable to suits alleging such invidious, unconstitu­
tional, state-sponsored violations of civil rights are com­
pletely different from those applicable to suits alleging 
violations of §§ 1981 and 1982 by private businesses.

Specifically, "qualifications" are not relevant in the 
school desegregation and voting rights cases cited by 
Littles. Individuals are "fungible" for the purposes of 
determining whether they have a constitutional right to 
vote or to receive an education. In cases such as this, 
however, it cannot be assumed "that all citizens are fung­
ible for purposes of determining whether members of a 
particular class have been unlawfully excluded." Mayor v. 
Educational Equality League, 415 U.S. 605, 620 (1974). 
"When special qualifications are required to fill particular 
jobs, comparisons to the general population (rather than



28

to the smaller group of individuals who possess the nec­
essary qualifications) may have little probative value." 
City of Richmond v. Croson, 488 U.S. 469, 501-02 (1989) 
(quoting Hazelwood School District v. United States, 433 
U.S. 299, 308 n.13 (1977)); see also Peightal v. Metropolitan 
Dade County, 26 F.3d 1545, 1553 (11th Cir. 1994). Given 
that no blacks in the Brewton area are even in business as 
wood dealers, let alone "qualified" under JSC's stan­
dards, the constitutional standards relied on by Littles 
would not affect the outcome of this case, even if such 
standards were applicable.

-----------------♦ ------- ----------

CONCLUSION

Littles' Petition does not and cannot identify any issue 
that would warrant review by this Court. Instead, Littles 
cites inapplicable cases and fabricates a controversy 
among the circuit courts of appeal that does not exist and 
would not be presented by this case even if it did exist. 
Accordingly, Littles' arguments in his Petition to this Court 
are no less frivolous than the Eleventh Circuit found Lit­
tles' arguments to be in the proceedings below.

For all the foregoing reasons, Respondent Jefferson 
Smurfit Corporation (U.S.) respectfully requests this 
Court to deny Herbert Littles' Petition for Certiorari.

F rank M cR ight 
Counsel of Record 
M cR ight, Jackson, D orman, 

M yrick & M oore, L.L.C.
Post Office Box 2846 
Mobile, Alabama 36652 
334-432-3334