Memorandum from Karlan on The Proper Standard of Remand in Swint; List of US Supreme Court Reports

    Pam Karlan
The Proper Standard of Remand

In Swint itself, the court of APPeals reversed and remanded

to the District court "for proceedings necessary to provide

appropriate relief.n (A-L77) If the Supreme Court vrere to uphold

the fifth Circuit, then, it wou1d, in effect, be remanding the

case to the District Court for relief proceedings. What we want

to argue is that the Supreme Courtrs remand need 9o no further

than the 'narr.ow' issue of the apProP-riate relief ; the court

should not remand on the broad question of whether, when the

proper legal standards are applied to the facts of the case, there

is a violation of Title VII.

28 U.S.C. S2106, the pertinent statute, provides that:

The Supreme Court or any other court of appellate juris-
diction may affirm, modify, vaCater sgt aside or reverseI ;:I.7:u?T.?5; ::;lffil 3Xu"[3;":L:u'ff:'.]i::"115 !f:31'
the entry---of such apProPriate judgment, decreer of order
or requiii such furlfrer- proceedings to be had as may be just
under the circumstances.

Under the circumstances in Swint, justice requires that the loner

court be ordered to provide the relief granted by the Fifth

Circuit's decision.

There are four interlocking reasons why only a narrog, remand

should be ordered: (1) The District Courtts decision was reversed

on the grounds of legal 'error; since there is no need to adduce

additional facts, another trial would be suPerfluous. 12) Given

the proper interpretation of the lega1 standard, the out'come of

the case is so clear that to remand for protracted Iegal proceedings

would waste judicial resources. (3) The length of the litigation

already demands an expedited resolution, both f-,r fairness to

in Swint

ti



ttr€ litigants and because of the unlikelihood of

information being presented. (4) The Presence of

on the district bench guarantees that swint will

unreasonably if the District Court is given any

2

any significant new

a "runaway" judge

be prolonged

latitude on remand.

(I) IHE FIE'TH CIRCUIT REVERSED THE DISTRICT COURT ON LEGAL
ERROR

The Supreme Court has three basic options in Swint: (a) it

can reverse the fifth Circuit and reinstate Judge Pointerrs

decisiori foc th'e defendants, (b) it can vacate the Fifth Circuit's

judgment and remand for further proceedings in the District Court

to allow a proper determination of whether Pullman-Standard's

seniority system is intentionally discriminatory within the

meaning of 5703(h); or (c) it can uphold the Fifth circuit's

reversal and remand so]ely for determination of the proper relief.

Leaving aside -option 
(a) , since that concerns the entire question

raised by Swint, and assuuring therefore that the Court doesnrt

reverse outright, it would be inappropriate for the Supreme Court

to vacate and remand f9r further proceedings on the question of

discriminatorY intent.-

The plaintiffs have never contended that t,hey were prevented

from getting all their evidence bearing on the question of intent

into the record. They contend, rather, that Judge Pointer failed

to accord the correct weight to or misinterpreted the evidence

before hin. The fifth Circuit agreed with plaintiffs that the

material already in the record is sufficient to prove discriminatory

intent. If this belief is incorrect, then there is no reason for

the Supreme Court not to sinply reverse the Fifth Circuit(_



--/'

3

if a litigant chooses the wrong strategy for presenting his

case, he should not exPect the Supreme Court to give him another

crack at it. Not to reverse the Fifth Ci.rcuit, then, must imply

that t,he record does gontain evidence sufficient to show discriminatory

intent. Once this evidentiary threshhold is reached, it doesn't

matter that the defendants' intent was "very" discriminatory; unlike

the degreee of discriminatory effect in a disparate impact case,

the degreee of discriminatory PurPose in a discriminatory intent

case is irrelevant.

Given both the numerous opportunities the plaintiffs have

had at, previous trials to put evidence before the district court

and their feeling, shared by the Fifth Circuit,, that Judge Pointerrs

errors lay in not looking at what was right in front of him, a remand

for further proceedings would not involve the Presentation of

a signif icant_. amount of additional evidence. (In fact, the current

district court trial was itself an extremely truncated one

which relied largely on evidence presented at the earlier trials.)

The only reason for the Supreme Court to vacate and remand, then,

would be to give the district court another oPPortunity to aPPly

the correct 1ega1 standard to the evidence. In addition to the

argumentS set out in Sections 21 3, and 4, below, the excePtions

from the "c1early erroni:ous" rule carved out for "paper cases"

and questions of "ultimate fact" should indicate that appellate

courts may ProPerly make these decisions for themselves'

In Forsed steel llheel co. v. Llewellvn, 25L U.S. 511, 5I5-I5

(I9I9), the Supreme Court noted that "objection is made to the

action of the Circuit Court of Appeals in simply reversing the judgment(':



4

of the District Court and not remanding for a new trialr" but replied

that "there was nothing to retry. The case involves only

propositions of law." The same is true in Swint: the current case

arose from the district court's decision to hold an additional

hearing to adduce all the evidence relevant to the Pullman-Standard

seniority system. After a decade in the courts, iE's hard to argue

that any significant evidence has not already been presented- lhe

only question still oPen is whether, as a matter of Iaw, the system

is bona fide.

King v. c.I.R., 458 E.2d 245, 249 (6th Cir., L972\, elaborated

on this belief:

A remand is unneccessary if all the evidence is documentary
and the appellate court can Pass uPon tlrg facts as well as
the trial Lourt t ot if all the facts relied uPon to support
the judgment are in t,he record t oE if the record as a whole
presEntt no genuine issue as to any mate-rial f?:t. 'Since
the record leaves no disputed issue of fact with respect to
this question, we find iL proper to decide it here without
referenca to a trieg of fait." Commissioner j,r-Gordon, 391 U-S.
83, 95 (1958).

In United States v. General t'lotors, 384 U'S' L27, L4L-42

(I9G5), the Supreme Court held that the lower court had erred "in its

failure to apply the correct and established standard" to the

particular facts in a complex antitrust suit. In foot'note 16, the

opinion went on to note that this mistake was "not to be shielded

by the 'c1ear1y erroneous' testr" esPecially since this case was

based almost entirely on documentary evidence. Protection of a

district court's findings under 52(a) has always rested on the

supposition that a district court has Some advantage over an

appellate court in making certain types of findings. This suPPosition

loses its force in "paper cases," where an aPPellate court has

before iC the same evidence as the district court and is equally



5

competent to make the aPProPriate determinations. Thus, rather

than remand the case to the district court to a1low it to aPPIy

"the correct and established standardr " the Supreme Court remanded

in G.M. soIely for the district court to "fashion aPProPriate

eguitable relief." 384 U.S. at 148. Parenthetically, it might be

noted that this case came to thd Supreme Court on direct appeal

from the Southern District of California; the Supreme Courtrs

decision to make the ultimate determination for itself and send

the case back to the lower court only in order to have its mandate

implemented thus para11els the Fifth Circuit's behavior in Swint-

In Dayton Board of Elugation v. Brinkman, 443 U.S. 525 (L979),

the Supreure Court fashioned the same tyPe of narrow remand in a

discrimination case. After finding that the district court had

,'ignored the lega1 significance of the intentional maintenance of

a substantial number of black schools in the system at the time of

Brown Ir" 443 U.S. at 535-36, the Supreme Court affirmed the Court

of Appeals' reversal of the district courtrs judgmrent, and thereby

ordered that the systemwide desegregation plan be implemented'

As I t,ried to show in my memo on Rule 52(a), Swint was prinarily

a paper case, and the fifth Circuit was therefore entitled to a

broad standard of review. On remand, Swint will be even more of

a paper case. Thus, nol only is the court of Appeals in as

capable a position as the district court, but should Judge Pointer

rule against the plaintiffs once again, the Fifth Circuit will have

even less compunction about overruling him.

In addition to these "practical" reasons why an appellaEe

court can properly make t,he determination of discriminatory intent

for itself, the policy reasons behind the Supreme Courtrs establish-

ment of a broader ScoPe of review when "a decision . cannot

(



t;

6

escape broadly social judgments judgments lying close to

opinion regarding the whole nature of our Government and the dut,ies

and immunities of citizenshiPr" Baumsartner v. United States,

322 U.S. 665, 67A-7L ll.g44), also militate against a wide-ranging

remand in Swint. Given the idiosyncrasies of individual district

court judges, the appellate courts have a resPonsibility to insure

that fundarnentaL civil rights are not denied. They can do this

only be closely overseeing and guiding the district courts'

determi.nations. The Supreme Courtrs belief in the jury selection

and voluntariness cases I discussed in the RuIe 52(a) memo, at

pp. 11-19, is Lhe correct path to take here also. Thus, the Supreme

Court wo.uld be correct procedurally, slthough not substantively,

of course , if it made its own independent assessment of the sub-

sidiary facts in Swint and reinst,ated Judge Pointerts verdict,

but it abdicate its responsibility to guarantee fundamental rights'

if it sent the whole issue back to the district court for further

proceedings even though it believed that intentional discrimination

existed

The exemption of PaPer cases anlTtinaing: of ultimate fact

from the protection of the "clearIy erroneous" rule obviously

makes it. easier for appellate courts to set aside trial courtsl

determinations. The rarionale behind this exemption dovetails

remarkably with S2106's'Prescription that an appellate court

order "Such further proceddings . [as] may be just under the

circumstances., The judicial gloss on Rule 52(a) makes sure that

when further proceedings would not be just, since they would

consume the litigants' resources to no real end, appellate courts

will not feel bound to order thern. If an appellate court isr 
-)



7

justified in rnaking its own decisions on findings of law and

ultimate fact and in paper cases, ah"nb:tashould be empowered

to order further proceedings which wiI1,/give effect to its decisions.

I2I IF THE APPROPRIATE LEGAI STANDARD IS APPLIED TO THE FACTS

IN SWINT, TIiE OUTCO!,IE IS SO OBVIOUS THAT FURTHER PROCEEDINGS

ARE.fficESSARY

UnIike findings based on freestyle inferences from subsidiary

facts -- on which reasonable men can differ there can be only

one correct application of a Iega1 standard. Perhaps this partially

underlies the exemption of such findings from the "clearly

erroneous" rule: since the.re can be only one right ansvrerr anY other

answer is by definition }rrong. Viewed in the ProPer legal 1i9ht,

the discriminatory animus fueling the seniority system at Pullman-

Standard is so patent that there is no reason to order further

proceedings on that question-

The Fifth Circuit's statement that "[a]n analysis of the

totality of the facts and circumstances surrounding Ehe creation

and continuance od the departmental system at Pullman-Standard

Ieaves us with the definite and firm conviction that a mistake

has been mader'A-170, echoes the definition of clear error expressed

in Gypsum. The Court.of Appeals doesn't use this language in

order to throw a smokescreen around an evasion of its resPonsibility

to obey Rule 52(a) -- a'tactic of which the appellants accuse it'

(u.s.w. Pet., at 2L fn. 14.) Rather, these words convey the

Fifth Circuit's belief that given the facts presented at tria1,

the answer to the question of discrimination vel non is so clear

that there can be no other satisfactory determination. Even

though it is not obligated to follow 52(a)'s strict standards,

the Court of Appeals is so convinced of t,he existence of discriminatory

r-



(' ',

8

purpose, that it could subject its finding to the more rigid

standard and stil1 decide to overturn Judge Pointer.

Appellate courts have long viewed the Povrer granted them

under 52106, EgPIS, as meaning that when there is an obvious

answer, justice does not require that the district court be required

ro find it for itself . rla!rnv.:!95!re, 235 F.2d 355 (9th Cir.,

1955) involved an interpleader by the adrninistrators of the

estates of a father and son killed in an automobile crash. Although

the Court finally held that the deaths were simultaneous, it stated

that:

Suppose this court should think t,hat it was clearly. 
_

erroneous to find as a matter of fact that Junior died
last and was of the clear opinion that the finding must
be that there was not sufficient evidence to find that
the persons disceased died simultaneously, we sould not
send- the case back for the court to find something (as a

matter of fact) that would carry us around again to the
same final 1ega1 destination. We are not constitued to
order to Perf5rmance of utterly useless acts. 235 t!.2d
at 359.

Although this statement does point to t,he Rule 52(^) standard',

it extends as well to findings of Iaw or ultimate fact, since an

appellate court'is as entitled-to overturn a lower courtrs lega1

findings when it considers t,hem wrong as it is to overturn the

lower court's findings of fatc when they are cclearly erroneous.

When an aPpellate court is as qualified as the trial court to

make a particular kind of legal finditg, it should not toss its

responsibility back to the district court out of some misguided

notion of protocol. Appellants contention that the Fifth Circuit''s

behavior "is symptomatic of a general disregard . for the ProPer

allocation of resPonsibilities between district courts and

courts of appeals, " U.S.W. Pet. at, 19, is thus incorrect, since



et

9

the proper allocation depends on the circumstances bf the case,

and not on any rigid philosophical formula. The Fifth circuit

in swint had to balance the competing values of conserving

judicial resources in clear cases and preserving district court

autonomy. Its choice to value the former more highly than the

latter in 1i9ht in the particular facts of the case was clearly

the right one.

Ifvin v. ttississippi River Fuel corp-., 386 U.S. 162 (1967),

centered on the guestion of whether 55(U) of th: Securities and

Exchange Act required that the pertinent state, rather than federal,

statut,e be applied to a proposed merger. It was, therefore, a

legal standards case. Although the Supreme Court held that the

court of Appeals had "erred in so construing s5 (11) of the Act, "

385 U.S. at L57, it decided that

This point is so clear that we see no occasion for remanding
the issue to the court of Appeal's for its consideration
of tne poini, even though i!-Ue.assumed that its opinion
does not decide it. Efiective judicial administration
reguires ifrit ,. dispose of the matter here. 385 U.S ' at 170 '

The district court's ignoring of evidence in Swint is of the same

i1k at the Court of Appeal's behavior in Levin'

(2d Cir. , L972), provides another statement of appellate willingness

to call them as they ".: 
them. Normally, state statutes can

be declared unconsitutional in a federal district court only by a

theee judge pane1. A single district court judge in the Eastern

District of New york had invalidated the committee's voting system,

which was operated under color of state Iaw. On appealr-the

Second Circuit dismissed the committeers procedural obje6tions,

stating that:

v. Kinss county Republican committee, 459 F.2d 308

rl



(1

IO

We cannot avoid noting that our own three-judge revievr,
while not by a district court, does serve to satisfy the
essential purpose of 52281, which was to prevent a single
district judge from paralyzing the enforcement of a
statewide 1aw. Since Ehe principlies governing the case
are clear, to remand for the convening of a three-judge
court at this stage would amount to a waste of judicial
manpower. 459 F.2d at 312-13.

Ir1^lo strands of this anslysis are especialJ.y applicable to Swir-tt.

For one thing, the Court of Appeals believes itself able to assume

the duties of a district court in this particular case, since

thos duties depend on the quality of the review rather than any

specific characteristics of the reviewing court. In the same w€Itr

the Fifth Circuit, in Swint was perfectly capable of performing

the role normally reserved for the district court of applying the

James v. Stockham test to the evidence. For another, remand would

simply be a waste of time once the Second Circuit has satisfied

itself as to the ultimate outcome of the case, Since if the

district court agrees with the Second Circuit's result, its post-

remand assent is superfluous and if it disagrees, it knows it will

be reversed. This aPPlies with especial force in Swint. If

the supreme court agrees with the Fifth circuit that the Pullman-

Standard seniority system was not bona fide, then that decides

the question. If it disagrees with the Court of Appeals, then

it should simply reverse the appellate decision outright.

The Supreme Courtrs most forceful exPression of appellate

power came in Bigelow v. Virginia. 42L U.S. 809 (L972)' which

concerned whether or not Virginia could prohibit the circulation

of out-of-state periodicals containing abortion-clinic advertisements.

After discussing the competing First Amendment and state police

po$rer claims, the Court stated that

The task of balancing the interests at stake here was one
that should have been undertaken by the Virginia courts
before they reached their decision. We need not remand for

r),



that, PurPose r. however,
apparLnt from what has
826-27 .

11

because the outcome is readilY
been said above - 42L U.S' at

e-l
Nixon v. warner communications, Inc., 435 U.S. 589, 610-11, fn.

20 (1978) reiterated this belief. Judge Pointer neglected to

fulfill his obligation to look at the evidence presented in

making his determinations and the court of Appeals did in swint

just what the Supreme Court did in Bigelow and Nixotl' 3=:e

several of Judge Pointer I s findings that, pervasive

discrimination in Bessemer should somehow caution one 953;!35!.

finding discrinination in the PuLlman-Standard seniority system

and that N.L.R.B. certification somehow granted the system an

imprimatur of rationality are the two most obvious fly So

blatantly in the face of previous case 1aw and judicial common

sense that there'is no point in remanding these issues for retrial,

since the instructions accompanying the remand will have t,o come

close to ogdering the judge to do it right this time in order

to insure that these same questions rrron't be appearing before

the court agsin in two years. As we shaIl See in the next two

sections, there is nothing to gain and a good deal to lose in

remanding Swiq! for retrial of any of the major issues.

(3) THE LITIGATION HAS BEEN SO PROTRACTED ALREADY THAT

EqRTHER DELAY IS UNJUSTIFIED

There have already'been five district court and two court

of Appeals hearings in swint stretching over nearly a decade'

There,€re +hQr- reasons why the length of the case already should

militate against a Supreme Court remand for further proceedings'

First,thenumeroustrialsmakeitunlikelythatsignificant(t



li

L2

new evidence will be uncovered on the question of the intent

underlying the creation and maintenance of Pullman-Standard's

seniority systen. The plaintiffs have never claimed that any

evidence suggestive of'discriminatory intent was excluded from

the record. The final district court hearing was concerned

solely with the "issue of the validity of the seniority system

under Section 703(h) of the Civil Rights Act of 1954," 15 F.E'P'

Cases,1538,1640i everyone has long been avrare that the disposition

of the case depends on the existence of discriminatory intent.

The marginal value of any additional proceedings would thus be

minimal

second, justice delayed often becomes justice denied.

The Bessemer plant closed permanently in January 1981, ten years

after the initial EEOC actions. Regardless of the back-pay

awards plaintiffs ultimately receive, a cost has been impoed on Ehem

over the past ten years which can never be recouped.

Final1y, Swint has at last reached a court capable of

disposing of the questions involved. To remand it under these

circumstances would almost guarantee further drawn-out litigation

below.

All of these concerns were addressed in a pair of Second

Circuit cases. Georgia-Pacif ic Co,rp. v. U. S. Plywood-ChamPion

Papers, fnc., 446 F.2d 295 (2d Cir., L97L), cerL-ien!!!-r-404

U.S. 870 (197I), lras a patent infringement case. The Court of

Appeals held that although the trial court claimed to have

allowed Georgia-Pacific a reasonable profit, it had not actually

done so:

This is a basic error which sould be corrected- we
would, in fact, be inclined t,o remand for reconsideration
vrere it not for the extraoridnary length of tine+tig

(i



f;

13

litigation has already lingered and the willingness
of tne party ultimately paying the damages to have
us dispose of the issue- 446 F.2d at 299.

In addition to recognizing the Supreme Court's ability to

dispose of the issue whet,her they would like it to or not, both

parties in Swint have at least implicitly consent,ed to the

Supreme Courtrs settling the guestion of intent itself. Plaintiffs

have conceded that no further subsidiary evidence is available

which would help them to prove intent. .Defendants certainly

donrt want plaintiffs to be given another chance to Persuade

Judge Pointer -- he might take a remand on a point'he has

already decided several times to indicate that a new apProach

to the problem is called for.

Even if the Supreme Court were to disagree with both the

1egal standard used by the district court and the lega1

standard used by the Fifth circuit, it should not remand the

case for further proceedings. Since there is unlikely to be

any significant new evidence, the case on remand will be essentially

a paPer case. The Supreme Court's opinion in G't't' holds that

the court is perfectly capable of making independent determinations

in such cases.

Chris-Craft Industries, fnc. v. piper Aircraft CorP., 515 F.2d

L72, 185-87 (2d Cir., 1975), a securities

elaborated on Georgia-Pacific :

violations case,

There is another reason for our decision not to remand
for another hearing on damages. That, is "the extraordinary
f""gih "e 

time thi; litigation has already Iingered." This
cas6 is no$, in its sixth year of litigation. This is the
iniia appeal to our Court. We have no doubt that, given

( ,j !m.i:*:;;I.?'=H:ni:ui3;3 ;:H:: T;:u,ii;Hll"'3"::i*tnarion



e

14

.inEheendwouldbemadebyusonthebasisof
essentially the same record now before us. To remand
the case i; the light of such a ProsPect would b9 a

waste of judicial manpower. we hold, in the public
interest is well as i; the best int,erests of the parties,
ifr"t it is appropriate, just, and within our Power to
fornulate, "-"-tfrl basis 6f the record now before us, the
correct measure of damages and to order that a modified
judgment for damages be entered accordilgfy ' -28 u'S'C'
szroe (1970) tcit;tions to Georqia-Pacif ic a-nd seerqv
omitted. I

In Swint, the sUpreme court can rest assured that a broad remand

to the district court will reseult at the very least in another

appeal to t,he Fifth circuit,. since the evidentiary record will

remain the same, all that will be accomplished by a broad remand

will be a delay in swintrs ultimate resolut,ion.

The behavior of the district courts in Georgia-Pacific and

Chris-Craft -paraIIeIs Judge Pointerrs. In each case, despite

his having claimed that he considered a particular issue, the

trial judge !r.d in fact ignored some of the most salient pieces

of evidence, despite their being reaaiiy accessible in the record'

Davton Board of Education v',Brinkman I ' 433 U'S' 406 (L9771 '

the first go-round of the Dayton desegregation case, could Prove

troublEsome to my argument. Justice Rehnquist begins the court's

opinion by noting that "this school desegregation action comes

to us after five years and two round trips through the lower

federal courtsr' 433 U.S- at 408. Before discussing t,he

substantive issues, the opinion notes that the questionlrof "the

proper observance of the division of functions:betrreen the federal

trial courts and the federal appellate courts" is one of the most

significant issues the case raises. Despite the focus of all

the lower courts' proceedings on the question of the aPProPriate

desegregation measures to be taken, the Supreme court held that
(;

.--./



a)

15

the court of Appealsr wide-ranging plan was unjustified, and

it vacated and remanded to the district court for further

hearings on the question of discriminatory intent' From the

descriptions given in the two supreme court opinions, it seems

that the remedy ultimately approved by the court in Davton II

was substantially similar to the one before it in Davton I'

I think, however, that the Circumstances and behavior of

the court of appeals in swint are sufficiently different from

those in g@to render the example inapposite. First, the

degree of intent mattered in Dayton, since the appropriate

relief could be determined only in reference to the extent' of

prior behavior. In swintr ES we've already seen, the degree of

animus in the Pullman-Standard seniorit'y system does not matter

at all. The existence of any discriminatory PurPose is enough

to condemn the entire system. lhus, ES I said above, dt P' 2-3'

there is no reason for the Supreme Court to remand to find

additional evidence of discrimination. second, the sixth

Circuit in Dayton wis dealing with a second-order consideration

remedies -- without having adequately examined the first-order

considertaion the Presence of systemwide discrimination'

In Dayton II, the supreme court upheld t'he court of Appeals',

conclusion that the district court had erred in the weight it had

accorded to the evidence of pasi practicest aPPlicability to the

question of intent and, rather than remanding once again to the

district court, affirmed the sixth circuit. The Fifth circuit's

decision in Swint deals exhaustively with the first-order question

of intent and teaves the initial determination of the aPProPriate

relief to t,he court most equipped tb handle such tasks the

I



(.

15

district court. lhe Fifth Circuit's behavior thus Inore closely

resembles the Sixthrs behavior in Davton II than in Davton I'

Third, according to Davton I, the court of Appeals, in

promulgating its own plan for relief, , neither found the

district court's factual determinations "clear1y erroneods" nor

'decided that the district court had misapprehended the law'"

433 U.S. at 4L7. Instead,

It was vaguely dissatisfied with the limited character
of the r"i"ay'which the Distrrtct Court had afforded
tiaintif f s, -and proceeded to institute a f ar more
i*-"titg or,. of its olrn, without in any way upsetting
the District Court's findings of fact or reversing its
conclusions of Iaw. 433 U'S' at 418'

The Supreme Court in Dayton II suggests that it was this judicial

sloppiness, rather than the nature of the Court of Appealsl

act, that Iay behind its previous remand, when the opinion refers

to'the.confusion evidenced--at various stages of 'the proceedings

regarding t,he scope of the violation established.l' 443 U'S' at

532. The Court of Appeals in swint, bY contrast, made clear its

disagreements with Judge Pointer I s aPPlication of the Teamsters

and James v. Stockham standards. Since their proceedings were

focuseduon the ProPer issues and their deliberations resulted

in a correct outcome, the Fifth Ctccuit's holding in Swint

is not vulnerable on the procedural and substantive issues

which doomed DaYton-

(40 BT.WIDE-RANGING REI{AND IN SWIX! WILL GUARANTEE PROTRACTED

FUTURE LITIGATION BECAUSETF-T "RUNAWAY" DISTRICT COURT

JUDGE

Because judges tend to stick uP for their own, there are

few judicial pronouncements on this topic. Nonetheless,
('



.)

L7

appellate courts have developed met,hods of overriding out-of-line

district judges. The "ultimate fact" exemption from Rule 52(a)

and the supreme court's willingness to examine the record

independently in constitutional rights cases are tuo examPles'

perhaps the strongest explicit statement on runaway

district courts i.s that 'found in

Corporation, 47g F.2d 489 (6th Cir" 1973)' The Court of
L.

Appeals had already remanded t,he case to the Northern District

of Ohio. It refused to do so again:

Asindicat,edabove,theDistrictCourthasfailedin
several instances to follow those specific instructions'
To specifically instru;i-if,.-Oi"ttiit Court for the
secondtimewould=".*-to-U."f1itt1evalueand'accordinglY'
we proce"i--to modify the awards entered on the remand'

There i; n" g""=tion of this Couet's inherent abilit'y
to modify a district couit judgnent and enter a final
order thlreon. 479 E,'2d at 500'

I have little doubt that if swint were remanded to the district

court on the question of intent, Judge Pointer would find once

dgain that the Pullman-Standard seniority system was bona fide'

IIe rii1l bave much the Same evidence before hirn' The only

directions which could lead him to find discriminatory intent

from this data would be instructions which left him no latitude

whatsoever. A remand ordered in such a fashion would be the

performance of an utterly useless act. If the law and the facts

allow Judge Pointer'S interpretation, the supreme court should

simply reinstate his origind&'idecision'

Dayton rr 1ends tacit support to the argument that appellate

courts should work around a runaway judge. The southern

District of Bhio had twice refused to order systemwide desegregation'



:
18

foIt misinterpreted the supreme court's guidelines r remand

in a manner that reinforced its previous decision. The Supreme

Courtrs decision to affirm the Court of Appeals, even though

a majority of the Court had exPressed dismay in P3IS-I at ao

appe&late court's performing this roIe, implies that it recog-

nized the pointlessness of giving the district court another

shot at the case. Since the evidence is not going to change

appreciably on remand, if the Supreme Court has any doubts

about the Pifth Circuit's enunciation of the aPProPriat'e legal

standard (but is not convinced Ehat, there rias no discriruination

behind the seniority syst€m) I it should do the job itself'

To send the problem back to Judge Pointer'is to guarantee Ehat

there will be a finding of no discrimination. If the Supreme

court believes that finding to be correct, it can reach the

result much .more quickly by simply reversing t,he Fifth circuit'

A judge whose mind is set, in stone will never understand that

his opinions are not anchored likewise



Vol. 456

250Ga7

rrr?q'qr 1u,,,'fiii,, i iEili:]: l;r"vr,T lgeiilril ii8jli:rj;: l,;,,,"?,g lu',FJl'lu466A2ds2; I o.r lzcrcsla I -- o'; l;8;ifi,;oi liiihzi,ioio liiihzi,iiis | _383-..^.p:l l4seA.2.ds40 le3Crc16-s6 le5ornoos iaarFt;,i4o l)brii,it\s" iiiiil,;6i' I460A2d541 ; NH i CuCt l672p2dtFra rrzzNu,075 re6RRF?r,,77s r ,.,'i' i:iliil:??g, liiiili,ii', iiiiiii:!ii i,lli!313r1

Alk r clcr i rcrc'320 l oc lonrza,troz lzzrnzo'rz* izornza,rr* | cir. J653p2d67s tzcrc,ns l"-,(i.:?j lnete-zitn li::iig:jf"' I "b]i T" l;6irF;;,iij, lnzonzc,e65ip2d682 
l rcrc'osr l tqtq[:^ l ^^ .y;; lozerza'is' losoFza,ssr r 70eF2d65] r ci. ^

;:q,* l;;;;f{I' i 

",,,:.;jT 
l;;il*iI l#iiilHi ki;;k I iii[iiifl, i#Iff#24eGa384 r4srs2dsre | tz2Lt2n lsgwzaazr laBEFtd,ti; [;i;;ii.:ii; i;;b;;:i;j' Ii'iiryi,r2uot2soGai I i rrb-iscro3ir izoirla\1zs Jooednx;r* iiliiza,sso | -ar,.};e. 

liszus,rrs2e0sE45r I -zot - isbrcrzaii:6e' li6ib;ei1ll i:.q!Ir.r{i liiSiz;';;z jzriizaiiiaz ijszus,rss2essE3rs i ozLe,t2t rs4e2FS334 jocesAiarz ioaanza,iie i;;BFr;,jji lfiii;;'iil; iiszus,azo,^^.,u.- I lr^olssiglo) isf-5-4_f!12 I - 
lr6aeFr'5-e1 lisliiisss- I -" 'ijr'"-' 1i,,,., *

UNITED STATES ST.]PREME COURT REPORTS

39F2di7 I 693F2d112s7 I zotnza,rrii

t\

9:'. .f:9.- 1 
+szr..rS'iir

rosrrrEsz l'83412di80-' l;i1ps_!ie | -ztt - l;;i;;;,;;;; liliiiili" L,o,,ito, l 
sruslw

44,NEr30 i',u..:,lllll, iit:1,u,:lrt j,,ff}^r,."rJ. iiiiili{ii iiiifTi:i;z iiiliini"6"3 i,,rr,_#
109ilrE57 is634F2d580'457US719
441 NE I 30 ls647F2d I 29 ij457US728
.- ..rrq l456usrer ;'tsg!.r!lIz -t lrbisEuiir tiiig-iria,ss2 i i6iiza,aro436NE877 ijslUSL\\' I slUSLw -i"iszujino' li;e;il;,;i0 i iXiira,,nn

tlrevotzt t-rov_o rt. rtruzDLrt6t)lrovzrzdlyyz l706b2d19r6 I Miss I

;"'#' ij''"tT,oo, i ''"tYoo*ji:ly,l,l';6' li'i,'r*tlp, r iliiig:iiil j e rrsiiii r+r jjsrusr
[soo6 i t4l.C l Cir DrLa j6t6F2d'ee3 tl723F2d1e65 -is6e2F2dl03l l'6t4FtJ;36s l'iiiiz?ir'aos i <titi"ett i'ci,. p.c.424so2d2s2 

iii?.!r.1?., I ci,. I .jccoieF2a -- losiFii,ioi i1t\rczaruzs i rrbz-scri.s,8r iio215zarr4

rxfi;, i,r,fi* i;::H,;}; rk$tf it;ll*lii ljiiiilffi liliiii!:il; il,ffiiiifili
iii$*g ix:qii' l "'?l:;'' lffiliiit ifiiiiifil i iiiiiiriii i"',',-''fl;ll;.,il;---Nl-# |iiihliiir i ,r,^.i1trv;iHB_l'.1' llaliltn,i. iiilrli;:;i, i,,8r;q,,.rlHRet#
?1?l'js-u.z?9 I . ci' r irlb-xEottl' 

-a;; L;c lfir;ifiiiil llii:rii;iis lioai.iizll'' i' Cir 2322Nvil440 l.';Jt1','ig i,^!Ll:xg*, lgxt.r::^^fi'irri.;iji. l2ilysj7fi' lfiiii:ffi lz,erzasr:NM Ic7o4F2dre7 jinlszusrt t t Inozrza,r roo irorslza'zr5 l i6ri5iili l 
'-"c;.I' 

liirsrzaslr6s7p2dr re8 rd72r F2d,418 1s637F2d562 r trzrzasit I 6diF2d,idi I iisit;iooz i zr r iza,iza I'izzrza,tuq"^.^Jl^ lJTzey2atet lruiouSbsi ltiifii;soe jzorFia,soo l- -'c;,';"' 
Iziiiiisli" t,)zorza,no

306sE886 I ssrFSr0r4 | ls8us'raa I ssoFS,sr2 | roiFzJ,iizl j oalr-jarzar lfi;i;;l;;, i ioros,lo,wash i ci' a j:sruslw l^._"'_.; .i- lio2Fi;'i;i- iiiiizo,,:ra 155rFS865 r 546FS,3e5e-lw2d824 l7rsF2a,r:z l" ^ _1s-rou lroaoFiJ,aao llqili;lii;s ja"o"sinza,sra lsoorsrz:.< ;ssons,usl99y?q?l? | -cg s I cir.D.C. IirisF2d'tsn ino:rzo'ibo !o,itrza,rnz 156-sFSEre jssuns,r23

l33y:iil? i'o'[:;':' ;s47FS628 lg'^lll*lm ]lii3i:lii ljqgriq:iqq. lffiiilii. i!orrs,,a:ru0\\'rd67e I s4eFS1l42 , 5a7FS628 l6e2F2d,'te4 I z0lrzd,r5+ i iooFzJ,io6- I ioaiSiiio I ior*ra:650P2d1107 | cirn r cir.l lfiospza'8t0;zolFiJriio;nbiiza'rr:ri Cirr rfs64FSll5609!9t?qt9l lrqqql2a'ns: lrosrFil,iora ltiiiiis\;; lnti:yza',iiiz ljidiizo,r:-s lrossFzooq: , s6sFSn2r67sp2d2r-( rc6tdF2d .^ ll9??I?qll? I .- cl' z Izoonza'ozi- l'ztjir:a;uso ,';riiizJio:s ii65p5,132..-^J'v-o. i_ _ r'1r62 iroserza,r) ijoerFiario-, iioiiii'iiio li;iiil,i;il i;;ii(:i#; lir,.r,rro672P2d7e5 l72lF2d1s8r I cir z l'totF2d,253 itoliii,iii" iilz':iqso' isiiiizb3"- i.szrns,rs:sRops3.08 izrnnw,ro: i:ttiiltiz lzorFii'sor lioihil,ii; lii6i.rou i cir.3 rs?3Fs,*s
) twt, Lu L_,) | tvtrzo,tt4 | t2!tld46u :57lf.s7gt( :e57lFSr1535RoPs308 

l23BR\t1r03 l:11I:1111 lzoer:J'soi luozhia'ici liioiszoo i cir.: jsr.rrs'rrs: (rr / -\sgFSl39l I7llFzd1llE7'708F2d,r90 | cir.to loasFia;a: iirorslotq- 188 - r 7r3F2d1?r{,i , ii:F5;ijjo i.zzir-z-a,s?s , iosiii,i6)r loa#:o,r::s i ci, s s76FS:10s0t12LEn lu r+Fzaz:r --c',..i-" 
i- 

-'6i;a^- 
lioiii,ioei ii6irza. uro lozrr:o,rrao tesFRD,s;3

,!to,i'r:f9.,, 
ttqF2atzq ;sorFSios l,:lg',1*lil, liilhigljli. :i68i;;,iji" l:iqii!:! "" i.l -si,, ,;)orr-s4oe i cir e , .._S:t 4 iJ6t{lF2det6 lztorzairrio | --a* ii- jisiil;i6,r 

!rorzrzo,+ooj:gg:.jgi laororza'u:o rso:nsitas ij;8iF;;rri liiiifi'il;" jor#za,roro i Cir. e :6r{7F2d,7n
''"tt'lor* fl:r'{:!:,': n*nSl,fon hu.1'510,','^',t ill;5*;*:. tllli:q:iii; iry:i:i.:r: ri.rrrr-or-u-t4s8e r722F2dst2 :6r(eF2d2s4e r6srF2d,ro& l'tiiiii,ioi" i;80ir;,i0i, i,ii;i#,;;i ii;JiFiT,9r",,Cir. D.C ld722F2d'rr-1 Cir o inoinzolq2i iqiifz"d,i'iia iilii.za,zl+ |565FS1,64 ;6e2F2d,e347r6Frd26 i ci'. F.a.._:lrizFzarbs.r ijiodiijr?7. p!!!?g,:r: lrosaiz!,bii l 

-"'ci.'ro"- 
iionrzo,szo.^.S:r.1- lg]-Qf?a'llsr '- .;; l - 

ij;iiFiir:ro lrrorialdr- iorir'rza,r:oo r687F2d,r3.1.1 ,i70eF2d840
9e^4F1d.14-2 lt702F2dl3ltl 7_gqF_r_d.'ltts ilrtsrza,so iZi6Fil;ioz: liidi:a,szs , Coto i'trarza,zltr706F2d17-( 

le7lEF2d1,a0-t e700F2d... -- I - _ci. a jnrorza,rba; iri-sllid,eto i or:piiij: lri,-r.ro,*n,
/ubr-ro'/: re/lEhzdr40l e700F2d I Cir 4 lnt6F2d1t087 if69lr:o,stb ioz:plail : lnt,rr:a,gos
_..9:,. !-_ | -c_tcr -.--^-l.,.t.Fr 191qqiq:r1 l'ii#2j,2ii' iolii:anos i rrr : ;rsrzo,ri:r,7rsF2d'lr3? r228ccLrE-i llll?.glg?r 1oqol:ai1lg iliqL?ql;i8 i,"ogiriiiiii rrr#o:o ,j,rr2d,r8n7rr(F1c1640 | crct -(5-iFse2b lororio,zls ;;rsridr:il iiisii:a,ss: N\ s48FS1960_ _C-rr 5 lclclc,45e Cir e lossiiJ,r;o , riariJ;irds ,'os7'i2;,eirl iesxs:ai;: i iaep5,i11

325Nrfil4l2 I cir. D.C. 'LP;9; i:931I19:::. lj9:u?91^18j li:qrPqrei l -soo- lrzrno#

e,cia,ir,, t:":.qlt *tilqiitr r,j:i!1i:',i' iiiSii:;l',i' tlilij!lllS i45ES2d8I .ii;F:f;ilc-,r c ounJors; ;o:Fi;r!o) ,'.iii.;,',d . if:ii1!ii;' :;ilr: ;i;o _ 336 _ , ifiF:f i;i,68hF2dll56 r684F2d16"1 - !,r t: .r-t0Ftdj.ii ;:afiJii:i: iqii2o,jt4r (:ZLE)I4) td55lFs-suee686F2"r t5-s3FS4Lr3 b?8F:d,l3c() ;20F2c,_rt,. es++pj.tbJi ros'El-:0,::lS f rO:Siiirsi i--io:rS,li,,r
[11162 i 554FS]2-58 69EFld2ilQe ;sssrFs,:16 lrlFS:tOt " ':"t,ji:C.ui,; rs64tF2Ct35 Cir ICr:. 9 I CiCr f nrr, i <<rEsr. ,i, --- ,

srtrs,aor :oii:c.r'..;',l.r"rltiii'' -"''';"u-l'
Cr:.. 6 1('4F2d,6:(r s(i86F2Cloa -s58FS t6riO5rldt78 t7()5F:d:4]: Cir.2 Crr ifl0?Fld126l ?0r,F2C,: t8t\ S7:FS!9.1i t,rti:a,tOSf,

C-r:.9 CiCr Col., r5_s7FS.;1..r.
6qoFlc't::: lcl( 4(' 6.ltrPtd:!q ti, :



,RT I,EPTOITS UNTTED,STATES SUPREME ooUTT REP'onTs

w2clc554 -

ctcl
6S4F2dt5l
6taF2drt73

Clct
4clctlll
,clc163

CtCl
553F8003
strFsl25t

14s23
w
[4573

w
[43]5

w
1123s

,i
4
,t03

-212-
Cir. D.C.

r1574

36F2dls81
Cit.7

,79FSr604

1.322w
[4325

-22E-
52usl-w

[1320
,2USLW

11322
J2USLW

7l/HU1l26t
755Etdi533
?t6F:ldr575

Cir. t
725F2drt lt0
7y).Fi,dl537
730F2ttl ttt

750Ftdrtz)
ch. lt

725HUt529
730Etdr6t 7
?!3F2rlr79l
733F2dr 1532
7r7HUlt0t2
TStEUil129
TrtEldrlHS
712F;U1t371
7.,.F:U1770
745F?trl378
,$r'111697
7{rF2dr5t6
7grFztt70
75lEzdrl543
7S2H8tX4
753ftdrt94
,558Ur1526

CXr. Fd.

5t{FS2t 7
5t5FSr 1252
590FSrt77
t92FSrttl6
t94FSr994
595FEl t02
tltPsrlto3
597FS!569
r,ls57r
59tFSrtt69' Cir. t
721yUW
75rEU543
tzlFsrtUlT
sC?FS1660
5t9FSt96t

tHu523
(r9

rr3lFzlr663
7t5EXr3a3
7rrEHr37t
uoEut6%
,alH,dst7
iTarF2dlr2l
?5aF2drt{54
755Eldl'55
36ER.Wrtoo(Ir. lO
7269,d$37
?fiE,d'{n,z
r73tEU167
?3lF2drl379

453

9tFRD35l
Cir. D.C.

?37HN1lO2
737HU1t179
73tF2dt2t0
73tF2trt2t0

j?a6F2d1543
71tF?dt706
752FU1619

Cir. I
nSrF2dUl
735F2rlr3
7tsF?dt722
75LF2/t47
75tF?tt172

Cir. 2
739F2dr759

Cir. 3
726FVlt9t7
732HU13y

Cir. D.C.
734H)t1lS?5

Cir. I
5t9FSe{64

Cir. 2
755F2i1232
5t9FS237
f5t9FSr2!t

Cir. 5
5t2FS595

Cir. 6
7138N.4t3

Cir. ?

358
FZI't396

74lF2d1l464
lr2dr475

7nvu17fi
73tEtdr294
TaSEtdrll6t
74tEB1438
755Eld1lt9
756F2d1t372

Cir. 9
728H2dt2UJ
72EF2trt203
729FX1t233
73t Eldrl4l I

{o3F8itB
- Oir. a

t928sl514(I].5
r29E

c5??FStl{5t
5il8s1,tl

Cir.6
73lEtd354
735F:Uloa
ltaF,fit2A

3tF2d?3t

7il3F2trl58
71,.8U1307
7$F:tt1t9l
747F2d8tt
749FZltt053
752HU1tzO
5l0Fs1 I tt9

Cir. a
725F:?d1ta2
730F2dtl/m
73tF2ttt79
734F2d9|n
734F211990
137F2t1t3,J'2
7'OF2dtlrB
143Ellt2t3
7a5F?t13,A

117F?ttS1{
7S'E,,t?5t,
,rlEsrl55o

CIr. 7
?3tEldltt
73tEUrlt5
73lEtdrt57
TatEldrtQm
752Etdrt258
7flEnt6/
t78FS20

1521

Cir. t
f577FSr396

FSrt292
306

Clr. l0
S9aFBrt(N
603FSr797

Cir. ll
53rFS5l7

3EFS5IE
C!lif

l57CA3d
11087

203CrR923
Conn

39CSl55
113A2t319

NJ
193Su358
111A2d38

n.,Eu1ts26
7{EFi)tlUz
75tF2dtf67
753Fztrl2at
754Eldll104
755F2dr332

Cir. 5
725F2d259
725F2t1312
726F2t1t(J,|4
730Eldr3l9

r0tt
r 166

7r6Ettt212
736FUt1026
737F2d1t12/
73tF2d1 l42t
7./F2d14t,9

ll2tr | 745F2dr995
n3 I747F2d'tm
w9 ,t)7$F2dtr52
1076'ltf'79P26t439w I z5oFzd'lrtt
['t215 | 750F2t1297usLw lnJ0F2d'l!a4
11327 115tF2n1769USLW I Cir.5
[45t7 

|725F2d't07t

'tr> rl q .7 (d fi
Uf -:-^---zl--.:----.- 

- 
/! "

f/'\----l.----^-'-'

589FSrI307
592FSE3t r
593FSr5I
601Fs970
602FSrtgt

cn. il
,l6BR.Wril7

Com
l93Cta30
479A2At%

NY
llTM*?1139

TT$t0.r5
rcoA5,rJl35

l46il.Jsr60l
I rerusroz
Isuusr-wI trotz
I S2USLW
| 11t22
I 52USLWI ttlr
I S2USLWI tors
I 52USLWI torr
ljs2usLw
I {16t2
53USLW

11171
53USLW

[.393
Cir. D.C.

73tF?,t3t
7,pF2d1[27S
J9tFSrE52

Cir. I
577FS1494
583FSr77

Cir. 2
c735111d1557

735F21r994
7'llFzdrl493
713F2/I3S9

137a
750F2l1r523
756FN131
756HU1172

Cir. 7
c72tF-2d1949
73JFZlrt03l
73tF2t790

F2dtt8
lEldr935

i727HHt53/
732f21rr578
,t5EErt577

-to6-.16lUSirct
js3usLw

Cir. I
754Fztrat6

Ctr. 2
599FSrt390

Cir. 6
5t6FSl t59
ircBRWt53

Cir. ?
rr45Eldra25
119FU1lt9
753Etdttr

rl365
d582FSrt.lg3

Cir.9
73tF2dl(,77

3EF2dl(Bt

-3SC-
Cir. 7

737F2d5t9
Cir. tl

731F2d6t2
Colo

687PX994
Ohio

l30Al59
a5tNlsr

-359-
459USr379

fl35F2n670
71tFU776
579FSt2t
$lrs93t
5t2FS772
:5t2FSt959
St3FSrl t39

322NW3t.
MFPl4.23

-4to -

Cir. t
754F2d1266

Cir. I I

727Etdrl(n0
NJ

l9tSu294
a7tA2dt253

'tXrh
577P.24t5
TOABA'5

-4:to-
Cdo

3l?2d455
Cir. 7

7{tPztrt56
7$HUt2t7
1i6,FUIt,/,3

Cir.9
729F:ldl2lr

-a3t -
lF2t6r5

52USLV

1.755
ch.2

n5r?uf221
,n

c)r.3
$lFsa5

Oir. 5
EldrltSS
Cir.5

ftig5Fsr577
Cir.9

739FZl'r,lt3
cb. u

755EDdrt69
C.lif

lStc/utdg22
153CA3d927
&CrE7l7
,mCrR72I)

.*ll^e -Cir. I
st{Fsr?6

Cir.2
SttFstl{o7

Cir. 3
stoFsT0

Cir. {
595FSrl5S5

. Cir- 5
752F2lrtl1l
502FS15 I 0

Colo

vol. ltC
atgNt9aa

Mo,
66'SVrt5

NH ..
a?0A2dtt2

IIIY'
l22Ittrc2d39

Oth
595EUt3t5

&
aToAildgtE

-ttal -
atfl,rsrr09
a52tr$&a
52[.EiI;f i,.

t53

It45t
f5rusLw. .1.2s7
53t SLW.l12ti9

CIr. D.C.
TltFldtt
,ttt8ta,

Gr.',1
727VXtt2

717Ydrta2
?'l6F:ld!9l
TtlEurtt
fstsss9t2
f'tsPsrt5a2

59{81592
60:lPsr285
(}3FSz)5

cb.2
Tt Fzi[1,

r14l5
tt2l,!381I
5ttErr3t2
5t7FSrt42l
tttFtsrT4

rs50
!o3FRD5lr

Cir. 3

7IIEMTT35

{rl(x7
577flsr54

d577fis535
ItFStl550
sttFsro9e
SSFS'701
f59tfsr1032' Cir. 4
73(EldrtSt
tatsrdrs9
t9atsrt r5
tgtrsr9t
59tFlsrt350
tglfsrtt3

Cir. -s
r206

592FS17 I 6
Crr. 6

?L

,9lES{7
Cir.,

726iEU5l8
73affUtt6
749F:ld1536
5t9FS!t9l
J09nsr{55
6mFSrtTt

(&. l0

75tE!41r23

r5l2
I(BESrtlg

Q. lt
taF:x!55r

OCr
rcrc?237

Ariz
lr?ArArS

Crs
l7lGrA2,m
3 r 9SE 1038

ru
l20ltrl0t9

lorre
3t9NWl93

I 697P2n28
; Ill
i 99lt2d4t2

i

lj734F2dt t7l
| 75!F2dtsl

l75F2d,4se
I a^r;n,,*t

3?9