Swint v. Pullman-Standard Memorandum of Law in Support of Opposition to Motion for Stay of Proceedings

    IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 74-3726

LOUIS SWINT , et al . ,
Plaiiit if f s-Appellants ,

and

CLYDE HUMPHREY,
Intervenor-Appellant ,

vs .
PU1.1.MAN-STANDARD, a division o£
UNITED STEELWORKERS OF AMERICA,

Defendant s-Appe11ee s .

for
Appeal from 
the Northern

the United 
District of

States District Court 
Alabama, Southern Division

MEMORANDUM OF LAW IN ^IJq^ p q ^ s t a ^ O ^ P R O C E E D I N G SOPPOSITION TO MOTION FOR S1AX vi ___ _________

The appellee Pullman

Court for a stay pending 

Clyde Humphrey or Willie

-Standard has moved this 

a determination as to whether 

Johnson are parties to



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instant appeal; and the union appellees have moved this 

Court to "...determine and advise all Appellees whether 

there are appellants in this cause other than Plaintiff- 

Appellant Louis Swint.,.." Under clearly-established 

law governing federal appeals, both motions are due to

be denied.
A review of the factual setting of the appeal may 

be a useful starting point of discussion. The instant 

action was commenced by Louis Swint and Willie James 

Johnson. At the time of the filing of the Equal Employ­

ment Opportunity Commission (EEOC) charge which led to 

the lawsuit, Swint, Johnson, and the third named 

plaintiff-appellant Clyde Humphrey were all employees of 

the Company and members of. the Steelworkers Union.

Swint and Humphrey were assigned to lower-rated jobs in 

the traditionally black Steel Erection Department; 

Johnson was assigned to a lower-rated job in the Paint 

Department. The Company had not considered any of these 

men for supervisory positions; virtually all of the 

foremen were whites; the three blacks had all been 

excluded from the better-paying preponderantly white or 

all-white departments; job vacancies were not posted; 

each of the three had been discrirainatorily assigned to

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less desirable jobs in the same job class as the 

desirable occupations worked by whites. Each of these 

men, then, had individual claims of discrimination 

against the Company and union on the aforementioned

grounds.
Shortly before the lawsuit was filed, the Company 

fired Swint. A year after the suit was filed, the 

Company fired Humphrey i' Hence, in addition to the 

previously listed individual claims of Swint and 

Humphrey, they each had a fifth individual claim arising

out of their discharges.
Prior to trial, the district court ruled that 

Swint and Johnson represented a class consisting of all 

similarly situated blacks at the Company; the Court 

allowed Humphrey to intervene with respect to his

discharge claim.
In its final order, captioned "Louis Swint, et al. 

vs. Pullman-Standard, et al.", the district court 

virtually denied all relief sought by plaintiffs-

l_/Both of the discharges were pressed to arbitration. 
An arbitrator sustained Swint s discharge,
another ordered Humphrey reinstated without backpay.

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appellants. Immediately thereafter, "Louis Swint, et 

al." filed a notice of appeal to this Court. Swint 

posted a cost bond; Johnson and Humphrey did not file 

such bond.

ISSUE PRESENTED

Whether the notice of appeal filed herein is 

technically defective with respect to any of the parties 

or issues on appeal; and if so, whether the appeal is 

meritorious and the said notice misled or prejudiced 

the appellees.

ARGUMENT

The Notice of Appeal Herein Substantially Complies With 
The Requirements of FRAP 3(c)

The parties to this appeal were all involved in a 

sixteen-day trial involving numerous witnesses and 

voluminous exhibits in the court below. As counsel for 

all parties were aware, the greatest portion of trial 

time was consumed in adducing or defending evidence 

relating to the class claims of racial discrimination 

in employment. In fact, in the three hours or so of 

post-trial oral argument to the district court, less 

than five minutes were had in discussing the discharges 

of plaintiffs-appellants Swint and Humphrey.

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The notice of appeal recited that Louis Swint and 

others were parties-appe1lants to the appeal. Swint 

had previously been found by the district court to be 

the representative of the class of blacks employed at 

Pullman. Nothing in the notice of appeal suggested or 

intimimated an intent to limit his capacity as a class 

representative or to restrict the extent of his individ­

ual claims on appeal, e. g., the text does not read, 

"Louis Swint hereby appeals the denial of his individual 

discharge claim." Cf., Appendix "A", Brief of Pullman- 

Standard .
A general appeal from a final judgment, such as 

the one sub j u d i c e , effectively draws into question all 

of the issues determined by the judgmeirt. Herron v 

Rozelle, 480 F 2d 282 (10th Cir., 1973). Roth v..JjZ£IL» 

142 F 2d 227 (5th Cir, 1944); Blitzst_ein v. Ford Motor

Co ■ , 228 F 2d 7 38 (5th Cir., 1961).

The appellees' contention that the instant appeal 

is defective as to the class members other than 

plaintiff-appellant Swint as an individual overlooks 

one central fact: the case at bar involves an appeal

by a duly certified class representative . Van H o o s e .v . 

Edison, 450 F 2d 746 (6 th Cir., 1971), a case heavily 

relied on by appellees, was not a class action; rather 

it involved four separate plaintiffs and no class

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action status was asserted or determined. J_d . Similarly,

Cooke and_S_ons Eguipment , Inc, v . ■ Ki 11 en , 277 F 2d 607

(9th Cir., 1960), as correctly stated in appellees' 

brief, involved a situation in which "...a judgment was 

entered against two named individuals and a corporation 

and an appeal was taken in the name of the corporation 

alone." Brief of Appellee, p, 14. Admittedly, the 

appeal was not brought by a certified class representative.

The Ninth Circuit, which decided Cooke, s up r a , has 

clearly held that where a notice of appeal is filed by 

a single plaintiff in one of eighteen separate actions 

consolidated for trial, the appeal is effective for all 

of the plaintiffs. St. Marie vs. United States, 108 F

2d 876 (9th Cir., 1940). Professor Moore has commented 

that "the result [St. Marie] is quite sound...." 9 Moore's 

F . P . 745 (11203.13). Again, St. Marie was not even 

asserted to be a class action. '

In the only reported case involving the filing of 

an allegedly defective notice of appeal by an asserted 

class representative, the Third Circuit has held that 

even though the text of the notice did not recite that 

the appeal was being taken on behalf of others similarly 

situated, the appeal is effective where, as in the case 

sub j udice, "...a fair reading of the caption

and body of the notice of appeal conveys

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the information that plaintiff was appealing all of the 

rulings below including the class action rulings,

Knuth v. Er ie-Crawf ord, 395 F 2d 420 at 428 (3rd Cir.,

1968), In Knuth, unlike the case at bar, the named 

appellant had not been certified by the court below as 

a class representative,
I Indeed, this Court has held, in a non-class action

case, that a single notice of appeal from an order

denying motions for relief in nine separate proceedings

was sufficient to bring up for review the appeals in

each of those separate proceedings. Parks vs. B. F

Beaman & Sons, 279 F 2d 529 (5th Cir., 1960).

Under the facts and circumstances of this case,

"substantial compliance" with the requirements for the

appeal has been satisfied. Cf. Parks , supra, at 531.

The Appellees Have Not Shown Any Misdirection or 
Prejudice By The Instant Notice of Appeal; And The 
Appeal Is Meritorious

Federal Courts of appeals and the United States

Supreme Court have uniformly required that the federal

procedural rules be liberally construed.

"It is too late in the day and entirely 
contrary t o t h e  spirit of the Federal 
Rules of Civil Procedure for decisions on 
the merits to be avoided on the basis of 
[ ] mere technicalities. 'The Federal
Rules reject the approach that pleading 
is a game of skill in which one misstep

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by counsel may be decisive to the outcome
and accept the principle that the purpo
nf pleading is to facilitate a proper o l p t '  b . i fnnlev v. Gibson,decision on the merits. Conley v
355 U.S. 41, 48. The Rules themselves
provide that they are to be construed to
’ secure the just, speedy and inexpensive^
determination of every action. R«le •
T* n rma n vs. Davis, 371 U.S. 178, 181 , 182,
83 S. C t. 227, 230 (1962).
This Circuit, consistent with Forman, supj^, has 

irmly established that where alleged procedural 

^regularities in perfecting an appeal have not mislead 

>r prejudiced an appellee, and the appeal is m e n t o r  

such irregularities will be disregarded. Cobb v. Lewis, 

488 F 2d 41 (5th Cir., 1974); ^ ^ , 227 F
2d 903 (5th Cir., 1955); Woodh^j^_Amer_Cxs_toscope Co., 

355 F 2d 551 (5th Cir., 1964); C r u m ^ J l l l ,  104 F 2d 

36 (5th Cir., 1939); Ues_JLsle^Ll_ E v ^ , 225 F 2d 235 

(5th Cir., 1955); Roth, sujvra; Tillman v ^JL_S^_, 268 F

2d 422 (5th Cir., 1959). C a i M ^ ^ n C a j ^  2 8 5 F 2d 

68 (5th Cir., 1960).
There can be no doubt of appellants' intent to 

appeal the judgment of the trial court. The singular 

fact that the notice of appeal was filed on the very 

next business day following the entry of Judgment (the 

final order was received by plaintiffs counsel at 

approximately 5:15 p.m. on Friday. September 13. 1974;

the notice of appeal was filed early on Monday morning,

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September 16, 197.) ...hi. itself shows pbststitfs basic

desire to appeal. Virtual!, all of the trial was relate! 

to class discrimination; thirty-two of the thirty-five 

pages of the opinion were addressed to issues of class 

discrimination. In the caption of the notice of appeal, 

as well as in correspondence with this Court, counsel 

for plaintiffs-appellants had consistently referred to 

"plaintiffs" and "plaintiffs-appellants” . In their 69 

pages of brief, plaintiffs-appellants devoted less than 

two full pages to a consideration of the individual 

discharge cases.
Appellees, understandably, do not claim that the,

have been mislead or prejudiced by any alleged

"ambiguity" in the notice of appeal. donos_vi_ChaJjei _b
r 099 p 2d 84, 86 (5th Cir,, 1968),■Tames Const. Co^, f

M-rVham v. Holt. 369 F 2d 960, 943 <5th Cir., 1966); 

v. McWilliams, 146 F 2 d 38 (5th Cir., 194

indeed, the correspondence from appellee’s counsel to

this Court dated March 4, 1974, conclusively rev

that appellee properly realised that the appeal was

being pursued by a£EeJJ,ai tJL, not a single appellant.

Plaintiffs-Appcllants' brief clearly lints all of the

j discusses the issues. See, parties, defines and discusses
. o o it 36] 366 (5th cir. , * J J >'v. Amer . _Hoine_As_s_.— Soc^, 488 F 2d 361,

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Appellees’ asserted reason justifying the purported 

need for instructions from this Court (i. e., the

appellees may be required to read the record and write 

a brief) proves too much. For the appellees did not at 

any time since the notice of appeal was filed nearly 

months ago, seek to raise the issue of the sufficiency 

of the appeal. Their delayed motion for a stay of 

proceedings was filed, deliberately or otherwise, 

simultaneously with the filing of appellants’ brief, 

should have been filed months earlier, if the true 

objective was to obviate the necessity of preparing 

unnecessary briefs by any of the parties. Cf . R^n^l_ds 

T-adinc Corn. v. «■ s . , 486 F 2d 1077 . 1080 01973).1'

It would be manifestly unjust, in these circumstances, 

to hold that appellees should not be required to file 

briefs on the central issues before the Court.

It

2 / 'We do not believe that the appellee can have 
it both ways. If it believed that it was
being mislead, surprised, °
d^Tged by defective pleadings, it should 
havc^moved jjromfctl* to quash mandate
instead of waiting until the United St 
Customs Court had gone- to the time and 
expense of preparing the record and other 
documents pursuant to the mandate.
(emphasis supplied)

Id .

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Likewise, and understandably, the appellees do not 

assert that the issues presented by this appeal are 

frivolous. The district court's sanction of a 

departmental seniority system premised on traditionally 

one-race departments, its denial of back pay and full 

remedial relief to a class of blacks found by it to 

have been discriminated against, its sanction of the 

use of subjective criteria for the selection of foremen 

by all-white supervisors, and its failure to require 

posting and bidding of job vacancies at a Company with 

a history of past discrimination— all of these rulings 

by the district court fly directly in the face of 

decided authorities in this Circuit. j^caj__189 v. U , S^, 

416 F 2d 980 (5 th Cir., 1969); cer t_.— deni e d , 397 U.S.

919 (19 7 0); Johnson v. Goodyear T ire & Rubber Co^ > 491 

F 2d 1364 (6 th Cir., 1974); Rowe v. G_e_n e x a j _ J l o t o ^ _ ^ ^ . 

457 F 2d 348 (5th Cir., 1972); United_S_t a t e s _v^Jiayes. 
Internal ’ 1 , 456 F 2d 112 (5th Cir.,' 1972); United^_tates^ 

v. Jacksonville Terminal, 451 F 2d 418 (5th Cir., 1971); 

cert, denied, 406 U.S. 906 (1972). There is, and can

be, no question that the instant appeal raises most 

substantial questions under Title VII of the 1964 Civil

Rights Act (42 U.S.C. §2000e ejt seg_. ) and the Civil

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Rights Act of 1866 (A 2 U.S,C, § 1981.

In summary, it is undisputed that appellees have 

not been mislead or prejudiced by any alleged 

irregularity in the notice of appeal, and the appeal is 

obviously meritorious,

CONCLUSION

For the reasons herein discussed, it is 

respectfully submitted that the appelles’ motion should

V

See Olympic Ins. Co. v. H. D. Harrison, 413 F 2d 
973 (5th Cir. , 1969) :

"It is true that in meritorious cases, 
we can and do overlook irregularities 
in perfecting the appeal! Morrow v.
Wood, 5th Cir. 1942, 126 F 2d 1021,
1022." Id., at 974.

Here the appellant had filed to pay the docketing 
fee; yet the appeal was allowed because of a 
"slight possibility" that the claim was meritor­
ious. The appeal was a successful one. 463 F 2d 
1099 (5th Cir. , 1972) .

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be denied .
Respectfully submitted,

U . WT CLEMON
ADAMS, BAKER 6 CLEMON 
Suite 1600— 2121 Building 
?1?1 Eighth Avenue, North 
Birmingham, Alabama 35203

MARILYN HOLIEIELD 
MORRIS J. BALLER 
BARRY GOLDSTEIN 
JACK GREENBERG
Ten Columbus Circle 
Suite 2030
New York, New York 10019

CERTIFICATE OF SERVICE

I hereby certify that on t 

3975, I have served a copy of 1 

on counsel for all parties to 

a copy of same in the United S 

addressed, and postage prepaid

certify that on this/Sth day of March, 

served a copy of the foregoing memorandum 

r all parties to this cause by depositing

the United States Mail, properly

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IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

NO. 7 4-37 2 6

LOUIS SWINT, et al. ,
Plaintiffs-Appellants

vs.

PULLMAN-STANDARD, et al.,
Defendants-Appellees

RESPONSE TO APPELLEES' MOTION FOR STAY 
OF FURTHER PROCEEDINGS

In response to the appellees' motion for a stay 
of proceedings herein, plaintiffs-appellants would show 
unto this Court the following facts:

1. That the notice of appeal herein clearly 
recited, "Louis Swint, et al., Plaintiffs." Thus, the 
parties were reasonably notified that Louis Swint and others 
were appealing from the order of the court below.

2. By order of the district court, Louis Swint
represents "... all black persons who are or have been



o
(within one year prior to the filing of any charges under 
Title VII) employed by the defendant Company as production 
and maintenance employees represented by the United Steel­
workers." (Pretrial Order dated June 4, 1974). Both Willie 
Johnson and Clyde Humphrey were employed by the defendant- 
appellee Pullman-Standard Company as of the date of trial 
and they are so employed at the present time. Thus, they 
are both members of the class represented by Louis Swint.

3. Both as an individual and as a class represen­
tative, Swint has been subjected to the practices complained 
of on appeal: (1) a racially discriminatory assignment to
a preponderantly black department and exclusion from the 
better-paying, all or majority white departments, (2) 
racially discriminatory job assignments within a single job 
class, (3) racially discriminatory job assignments by white 
foremen and racially—motivated exclusion from service as 
a foreman, and (4) prejudice arising from the Company s 
failure to post job vacancies. These practices constitute, 
as .t.-:.:.’. .■ .... the previously-filed brief of plaintiffs-
appellants fully details, the core of the appeal herein.

4. Nothin in either the caption or text of the 
Notice of Appeal herein indicates, or provides grounds from 
which it may reasonably be inferred, that the instant appeal 
is limited to Swint's individual discharge case.

2



)
5. The brief of plaintiffs-appellants, previously 

filed herein lists all parties to, and clearly defines the 
issues presented for review by, the instant appeal.

6. Appellees have not shown, nor can they show, 
that they have been prejudiced or misled in any way by the 
Notice of Appeal as filed herein. In a letter to this Court 
dated March 4, 1975 counsel for the appellee Company ex­
pressly refers to "appellants." Moreover, all of the 
correspondence since the entry of the district court's final 
order has referred to "appellants" or "plaintiffs-appellants", 
thereby leaving no valid ground for question as to whether 
the appeal was being pursued on a single discharge claim by 
Louis Swint.

7. Parrish, et al., etc, v. Board of Commissioners
of Alabama State Bar, 505 F.2d 12 (5th Cir., 1974) withdrawn
2/20/75, did not establish a precedent with respect to notices
of appeal. Rather, as the panel correctly stated,

"...this Court has long held that irregularities 
in form or procedure in filing a notice of appeal 
will be disregarded, when the interests of sub­
stantive justice requires it,, as long as there 
is 'substantial compliance with the rules.'
[Citing 5th Circuit cases]" Id., at 16 
(emphasis supplied).

The Court in Parrish merely followed well-established 5th 
Circuit law on this subject. Cobb v. Lewis, 488 F.2d 41,
45 (5th Cir., 1974); Jones v. Chaney & James Construction Co. ,

3



V

39.9 F. 2d 84 (5th Cir., 1968); Markham v. Holt, 369 F.2d 
9.40 (5th Cir., 1966); Crump v. Hill, 104 F.2d 36 (5th Cir., 
1939); Carter v. Campbell, 285 F .2d 68 (5th Cir., 1960).

Counsel for plaintiffs-appellants herein has 
assumed that the former decision was withdrawn by this Court 
because of the precedent thereby established in the law 
of recusal.

7. The defendant Company's motion for a stay, 
dated March 6, 1975 is inconsistent with its representation 
two days earlier that it will be prejudiced by any further 
delay in filing briefs "...because this case should be dis­
posed of promptly." (Letter of C. V. Stelzenmuller to 
Edward W. Wadsworth, Clerk, dated March 4 , 1975).

WHEREFORE, the premises considered, plaintiffs- 
appellants respectfully pray that the motion for a stay 
of proceedings and/or instructions be denied.

Respectfully submitted,

U. W. CLEMON
ADAMS, BA ICE R & CLEMON

Suite 1600 - 2121 Building
Birmingham, Alabama 35203

MARILYN KOLIFIELD 
BARRY GOLDSTEIN 
MORRIS J. BALLER 
JACK GREENBERG

10 Columbus Circle
New York, New York 10019

ATTORNEYS FOR PLAINTIFFS-APPELLANTS
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CERTIFICATE OF SERVICE

I hereby certify that I have this ! day of 
March, 1975, served a copy of the foregoing to all counsel 
to this proceeding by depositing sane in the United States 
Mail, postage prepaid as follows:

i

C . V. Stelzenmuller, Esq.
Thomas, Taliaferro, Forman, Burr & Murray 
Sixteenth Floor Bank For Savings Building 
Birmingham, Alabama 35203
John Falkenberry, Esq.
Cooper, Mitch & Crawford 
Suite 201
409 North 21st Street 
Birmingham, Alabama 35203
Marilyn Holifield, Esq.
10 Columbus Circle
New York, New York 10019
Morris J. Bailer, Esq.
10 Columbus Circle
New York, New York 10019

n
(. A r yn

Uo
u. W. CLEMON