Mann v. City of Albany, Georgia Brief of the United States as Amicus Curiae

    No. 88-8468

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

J. DALE MANN,
Plaintiff-Appellant 

v.
CITY OF ALBANY, GEORGIA, et al.,

Defendants-Appellees

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

BRIEF OF THE UNITED STATES AS AMICUS CURIAE

WM. BRADFORD REYNOLDS
Assistant Attorney General

ROGER CLEGG
Deputy Assistant Attorney General

DENNIS J. DIMSEY 
ROBERT J. DELAHUNTY 
Attorneys
Department of Justice 
P. O. Box 66078 
Washington, D.C. 20035-6078 
(202) 633-3870



CERTIFICATE OF INTERESTED PERSONS

2 .
3 .

4 .
5 .
6 .
7 .

8 . 
9

1. Honorable Duross Fitzpatrick, Trial Judge 
C. Nathan Davis, Attorney for Appellant

for Appellant
j. Dale Mann, Appellant 
City of Albany, Georgia, Appellee 
Washington Long, Appellee
James V. Davis, Thomas S. Chambliss, Attorneys for City 

of Albany
Chevene B. King, Jr., Attorney for Washington Long 

of America
These representations are made in order that the Judgesof 

this CoS?? lly evaluate possible disqualifications or recusal.
C  '— -

/ ' /  A y tyu
Robert J. Delahunty



TABLE OF CONTENTS
Page

INTEREST OF THE UNITED STATES .....................  2
STATEMENT OF JURISDICTION .........................  2
STATEMENT OF THE ISSUES .............................  2
STATEMENT OF THE CASE ..............................  6
STANDARD OF REVIEW ......................... . 6
SUMMARY OF ARGUMENT ...........................
ARGUMENT:

j. plaintiff is entitled to seek relief
FROM THE 1976 COURT ORDER .........

16
24

TT THF COURT-ORDERED QUOTA IS NOT "NARROWLY
TAILORED" TO REMEDYING PAST DISCRIMINATION

CONCLUSION

TABLE OF AUTHORITIES

Cases:
a-f-rn-American Patrolmen's League v. Cit.y of Atlanta 

817 F.2d 719 (11th Cir. 1987) ..................
Arizona v. California, 460 U.S. 605 (1983) .......
Ashlev v. city of Jackson, 464 U.S. 900 (1983)
Bernhard v. Bank of America Nat'l Trust & Savings 
Ass'n, 19 Cal.2d 807 (1942) ............

Blonder— Tongue Laboratories^. 
TTlinois Found., 402 U.S.

Inc, v. University 
313 (1971) .......

of

Catelett v. Missouri Highway & Transp. Comm'_n 
828 F.2d 1260 (8th Cir. 1987) ............

rh^P Nat'l Bank v. City of Norwalk,
291 U.S. 431 (1934) .........................

* Colby v. -t - C - Penny Co. , 811 F.2d 1119 (7th Cir 
1987) .......................................

Commissioner v. Sunnen, 333 U.S. 591 (1948)
Connecticut v. Teal, 457 U.S. 440 (1982) ......
Firefighters Local Union No,— 1784. v. Stotts,

467 U.S. 561 (1984) .........................

11
9,10

8

8

8

20

12

10,13
12
20

24

i



Cases (continued):
Furnco Construction Co. v . Waters,

438 U.S. 567 (1978) ................................
General Bldg. Contractors Ass'n v. Pennsylvania,

458 U.S. 375 (1982) ................................
General TpIpphone Co. V. EEOC, 446 U.S. 318 (1980) ---
Griffin v. State Board of Educ., 296 F. Supp.

1178 (E.D. Va. 1969) ...............................
Hammon v. Barry. 813 F.2d 412, (D.C. Cir. 1987),

cert, denied, 108 S. Ct. 2023 (1988) ...............
Hansberrv v. Lee, 311 U.S. 32 (1940) .................
Harris v. Marsh. 679 F. Supp. 1204 (E.D.N.C. 1987) ....
Hazelwood School Dist. v . United—States,

433 U.S. 299 (1977) ................................
H.K. Porter Co. v . Metropolitan Dade_County,

825 F.2d 324 (11th Cir. 1987), cert. pet.
pending, No. 87-1001 (O.T. 1987) ...................

*Tn re Birmingham Reverse Discrimination Employment 
Litigation. 833 F.2d 1492 (11th Cir. 1987),
cert, granted, 108 S. Ct. 2843 (1988) ............. ■

J.A. Croson Co. v. City of Richmond,
No. 87-998 (O.T. 1987) ............................

Janowiak v. City of South Bend, 836 F.2d 1034
(7th Cir. 1987), No. 87-1754 (O.T. 1987) ..........

♦Johnson v. City of Albany, 413 F. Supp. 782
(M.D. Ga. 1976) ...................................

Johnson v. Transportation Agency, 107 S. Ct. 1442
(1987) ............................................

Litchfield v. Goodnow, 123 U.S. 549 (1887) ..........
Lockoort v. Citizens for Community Action,

430 U.S. 259 (1977) ...............................
Mann v. City of Albany, 687 F. Supp. 583

(M.D. Ga. 1988) ...................................
Marino v. Ortiz, 108 S. Ct. 586 (1988) ..............

23
10

12

21
8

20 ,21-22

22

20

16

passim

16,24,25

21

passim

passim
8

9

4
1,12

li



Cases (continued):
Martin v. Wilks, 108 S. Ct. 2843 (1988) 

NOS. 87-1614, 87-1639 & 87-1688 (O.T.
cert, pending, 
1987) ........

McDonald v . Santa Fe Trail Transp_.— Cô _, 
427 U.S. 273 (1976) ................

McKinney v. Alabama, 424 U.S. 669 (1976) .......
Mullane v. Central Hanover Bank & Trust Co._,

339 U.S. 306 (1950) ..........................
Patterson v. McLean Credit Union, 108 S. Ct. 1419 

(1988) .......................................
Regents of the Univ. of California v . Bakke,

438 U.S. 265 (1978) ..........................

23
8,10

10

7

11,21

12,25

.gam Fox Publishing Co. v. United States, 
366 U.S. 683 (1961) .................

Sea-Land Services. Inc, v . Gaudet, 
414 U.S. 573 (1974) ...........

Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986) .....
♦United States v. Jefferson County, 720 F.2d 1511

(11th Cir. 1983) ...................................
United States v. Maine, 420 U.S. 515 (1975) ..........
♦United States v. Paradise, 107 S. Ct. 1053 (1987) ....
Walters v. City of Atlanta, 803 F.2d 1135

(11th Cir. 1986) ...................................
Watson v. Fort Worth Bank & Trust, 108 S. Ct.

2777 (1988) ........................................
♦wi1liamson 

(2d Cir.
v. Bethlehem Steel Corp._, 468 F. 2d 1201 
1972), cert, denied, 411 U.S. 931 (1973) ...

Wvgant v. Jackson Bd. of Educ,_, 476 U.S. 267 (1986) ...
Constitution and statutes:
Constitution of the United States:

Due Process Clause of the Fifth Amendment
Fourteenth Amendment ...................

Due Process Clause ...................
Equal Protection Clause ..............

12
passim

passim
10,13
passim

24

19,20,22

8,10,13
21,23

6,8
4

6,8
7,24

iii



Civil Rights Act of 1964, Title VII, as amended, passim
42 U.S.C. 2000e et seĝ . ....................  1
42 U.S.C. 2000e-5(f)(1)   2

28 U.S.C. 1291 ................................... ‘ ’ 4,7,23
42 U.S.C. 1981 .................................  . 4
42 U.S.C. 1983 .................................

Miscellaneous:
........... 12

Fed. R. Civ. P. 24 .................................   12
Fed. R. Civ. P. 60(b)(6) .....**‘**2............Comment, Collateral Attacks on Employment

Discrimination Consent Decrees, ........  10,24
^ l 3r Ji' Thp' Col lateral^Attach Doctrine and Rules of

Process. 1987 U. Chi. Legal Forum 155 (1987) .....
BPstatement (Secondl of Judgments, 8

Section 34(3) at 345 (1982) • • • • • • • • • •* * * * * 8,9

Civil 4449 (1981) .............................



IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

No. 88-8468 
J. DALE MANN,

Plaintiff-Appellant
v.

CITY OF ALBANY, GEORGIA, et al.,
Defendants-Appellees

APPEAL FROM THE UNITED STATES 
•pot? THF. MIDDLE DISTRICT

DISTRICT COURT 
OF GEORGIA

BRIEF OF THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES 
The united states is responsible for enforcement of Title 

VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seca, 
where, as here, the employer is a local government, 42 U.S.C. 
2000e-5 (f)(1). «e have participated as a party or amicus curiae 
in cases involving related issues concerning the effect on 
nonparties of Title VII consent decrees. See, SUU. Marino v. 
Ortiz, 108 S. Ct. 586 (1988); Jn re Birminqham Reverse
ni cor(mi nation nmolovment Litigation, 833 F.2d 1492 (11th Cir. 
1987), cert, granted, 108 S. Ct. 2843 (1988). This case also
implicates the legality of a promotion quota ordered by a 
district court, and we have also participated in cases of that 
Kind, see, e ^ ,  United States v. Paradise, 107 S. Ct. 1053

(1987) .



2
STATEMENT OF JURISDICTION 

This Court has jurisdiction under 28 U.S.C. 1291.
STATEMENT OF THE ISSUES

1. Whether a plaintiff may collaterally attack a 1976 
court-ordered affirmative action plan when he was neither a party 
to the original suit nor in privity with a party, but was denied

a promotion in 1985 because of it.
2. Whether a court order requiring each job category m

each city department to reach a fixed, 60%/40% proportion of 
whites and blacks, and to promote on a one-black-for-one-white 
basis until that proportion is achieved, is an unlawful racial

quota.
STATEMENT OF THE CASE

1. This is an employment discrimination suit brought by a 
white police officer who was denied a promotion in favor of a 
black police officer. The plaintiff has been a Major with the 
Albany, Georgia, Police Department since 1979 (R. 1-39-1)M  In 
1985, he and three other police officers applied for the vacant 
position of Assistant Chief (there is only one such position), 
which had previously been -occupied by a white man. The post was 
filled by the only black applicant, then-Major Washington Long, 
whom the City found to be qualified (R. 1-39-2). The Personnel 
Office informed the plaintiff that he could not have been 
selected because of the provisions of an affirmative action plan 
adopted pursuant to a permanent injunction, which requires half

1/ Record citations are by 
page number.

volume number, document number, and



3
of all vacancies to be filled by qualified black applicants, if 
available. The Personnel Director's letter stated: "Due to the
previous selection being white and the fact that there was a 
qualified black person who applied for the job, the selection had 
to be black to comply with the provisions of the Court 
Injunction. Therefore you could not be selected for the 
position" (attached to R. 1-1-2).

The Personnel Office's letter referred to the district 
court's decision in Johnson v. City of Albany, 413 F. Supp. 782 
(M.D. Ga. 1976), in which the court had found the City of Albany 
liable for racial discrimination in employment, and had issued a 
remedial injunction.2/ The injunction was designed (9/12/76 
Permanent Injunction at 3, attached to R. 1-1; emphasis in 
original):

2J The Johnson litigation involved the claim that the City had 
engaged in employment discrimination in all its departments, 
including the Police Department, in violation of Title VII. The 
Johnson court made detailed findings concerning the City's 
discriminatory practices for the period from 1968 through 1975. 
For 1968, the court found that "in every respect white employees 
and applicants * * * were favored over black employees and 
applicants" (413 F. Supp. at 799). For the 1968-1973 period, the 
court found that, while pay differentials were being "corrected," 
overall there was "little if any change" (ibid.). As of the end 
of 1975, the court found that the City had altered its 
discriminatory practices "in some respects" (id. at 800), but 
that nonetheless its pattern or practice of discriminating 
against blacks, particularly by keeping them in low-paying jobs, 
"continues to the present day" (ibid.).

With respect to the Police Department, the Johnson court 
found that the City had hired and promoted (up to the rank of 
Captain) by use of tests that did not comply with Supreme Court 
decisions or then-current EEOC Guidelines, and that had an 
adverse impact on blacks (413 F. Supp. at 792-793). The court 
also found that "[employment application forms and tests were 
used not to measure job aptitude but to give the false appearance 
of fairly considering all persons for employment and promotion 
and to perpetuate the past but continuing discriminatory 
practices" (id. at 799-800).



4
to correct the imbalance in employment opportunity that 
now exiles by first creating a plan having as a goal 
the achieving of a work force in which the proportion

description, (c) by department, and £d) by
i* by*the SS.f
recent Albany? GeorgiS, Standard Metropolitan Area 
reoorts of the Bureau of the Census. Until that 
objective is reached the defendants ^ h iect only to th_ 
avaiTability of qualified ze2±±c m £ s , s*a]) flll at Teast- one-half of all ]ob vacancies by hiring or 
promoting black persons.[ ]
The City did not appeal the Johnson decision. The plaintiff

was not a party to that case.
2. Plaintiff filed suit under Title VII of the Civil Rights 

Act of 1964, Sections 1981 and 1983 of Title 42, and the 
Fourteenth Amendment. The City moved for summary judgment, which 
the trial court granted. Mann v. City of Albany, 687 F. Supp.

583 (M.D. Ga. 1988).
In the first half of its opinion, the district court 

purported to apply this Court's decision in Tn re Birmingham 
Reverse Discrimination EmpinymP.nt Litiqatio_n, supra. Birmingham 
permitted a collateral attack on a Title VII consent decree, and 
the district court conceded that "the legal analysis for claims 
of reverse discrimination under both a consent decree and a court 
decree are the same" (R. 1-39-7). Nevertheless, it asserted that
"the very distinctions * * * between the two are what dictate the

V  Based on SMSA statistics, the mandatory objective ordered by 
the injunction translates into a 60%/40% white/black quota 
(Townsend Aff., R. 1-24-2).



5
outcome of this case" (ibid.).4/ In the district court's view, 
res judicata would bar plaintiff from collaterally attacking the 
original decree if "the interests of the subsequent reverse 
discrimination plaintiff were adequately represented by a party 
to the original action" (R. 1-39-8). Reviewing the facts of the 
original Johnson litigation, the court concluded that the City 
had "adequately represented the interests" of the plaintiff in 

that action (R. 1-39-10).
In the latter half of its opinion, the district court 

reasoned that even if the City had not "adequately represented" 
the plaintiff in Johnson, the original decree satisfied the 
conditions for lawful affirmative action prescribed in Johnson v. 
Transportation Agency. 107 S. Ct. 1442 (1987), and in United
States v. Paradise, 107 S. Ct. 1053 (1987) (R. 1-39-12-15). The
court found that the plan had a valid predicate because it was 
addressed to remedying the past racial discrimination which the 
district court had found in 1976 (id., at 10-11) . And it was 
"narrowly tailored" and did not "unnecessarily trammel" the 
rights of nonminorities (id^ at 11-12, 13-14) because, the court 
held, particular city departments could "come within the confines 
of the Order" by reaching their overall quotas*, and because "50-s 
of all promotions are automatically open to nonminorities, and 
the positions earmarked for black promotions are available to

4/ The court rejected appellant's argument that he was merely 
attacking the City's plan, as distinct from the Johnson court's 
order, since "any employment policy established by Albany and not 
disapproved of by Judge Owens was implicitly approved and adopted 
by the Order. Consequently, the Order and the Plan must be dealt 
with together" (R. 1-39-8). Our brief assumes that this is 
correct.



6
whites in the event that no qualified black candidate applies"

(id. at 14) .
STANDARD OF REVIEW

Whether a collateral attack on a court decree will lie is a 
question of law, as is the question whether the court order meets 
the legal requirements for racial preferences. Accordingly, the 
standard of review is whether the district court erred, as a 
matter of law, in its rulings on these two questions.

SUMMARY OF ARGUMENT
The district court's conclusion that the plaintiff was 

barred from challenging the 1976 court order is erroneous, both 
under generally applied principles of res judicata and under the 
controlling law of this Circuit. Plaintiff was not a party to 
the lawsuit in which that order was entered nor was he in 
privity with any of the parties. Under the ordinary and 
accepted rules of res judicata, he should therefore have been 
allowed to litigate this case. Indeed, the right to one's day in 
court is rooted in our legal traditions and protected by the Due 
Process Clauses of the Fifth and Fourteenth Amendments; it should 
not be made to hinge on the particular contents of the decree 
from which the plaintiff is seeking relief. This Court applied 
these principles in In re Birmingham Reverse Discrimination 
Employment Litigation, supra, in upholding the legality of the 
collateral attack at issue there, and those principles apply with 
equal force and lead to the same conclusion in this case.

The district court also erred in its alternative holding 
that the 12 year-old court-ordered quota —  which mandates a



7
60%/40% white/black allocation of jobs in all municipal 
departments and job categories, and which the City construes to 
require a one-for-one promotion procedure even in upper level, 
single-incumbent Police Department jobs was consistent 
Title VII, 42 U.S.C. 1981, and the Equal Protection Clause, 
under the standards set forth in united States v. Paradise, 107 
S. Ct. 1053 (1987), neither the quota itself, nor its application

to the circumstances of this case is "narrowly tailored" to the

purpose of remedying the City's past discrimination.
Accordingly, the City was not entitled to summary judgment, 

and the case should be remanded.
ARGUMENT

I.
PLAINTIFF IS ENTITLED TO SEEK RELIEF FROM THE 1976 COURT ORDER 

There should not be and is not one set of general res 
judicata rules for most civil cases (including most Title VII 
cases) and a different, more restrictive set of rules for 
"reverse discrimination" cases.5/ It follows from this 
established principle that the district court incorrectly held

5/ c^o Tn Birmingham Reverse Discrimination Employment , 
Litigation^ 833 FT2d^at~1498 pre^usi
effect of a consent decree on nonparties, * novern

limitations we presently place on res (judicata 
estoppel. We should not undertake such ion lightly ), 
als0PPatterson v. McLean Credit Union, 108 S. Ct. 1419,
(1988) (per curiam).



8
the plaintiff to be barred from seeking relief from the 1976 

court order.
1. Under the common law, a litigant is generally not bound 

by a judgment in a case in which he was neither a party nor the 
privy of a party,*/ and here, plaintiff was -neither part[y] nor 
priv[y]" to the earlier litigation. See In re Birminqham_Reyerse 
Discrimination Employment Litigation, 833 F.2d at 1498.

Furthermore, the right of a nonparty and nonprivy to be 
heard is rooted not only in the common law but also in the Due 
Process Clauses of the Fifth and Fourteenth Amendments. "Some 
litigants —  those who never appeared in a prior action —  may 
not be collaterally estopped without litigating the issue. They 
have never had a chance to present their evidence and arguments 
on the claim. Due process prohibits estopping them despite one 
or more existing adjudications of the identical issue which stand 
squarely against their position." B1onder-Tongne Laboratories^ 
Inc, v. Tinivarsity of Illinois Founds, 402 U.S. 313, 329 
(1971).7/ This general rule has been applied straightforwardly 

in cases brought under civil rights statutes.£/ * §

6/ see Litchfield v. Goodnow, 123 U.S. 549, 550-552 (188 ), 
Rernhard v. Rank of America Nat'l Trust & Savings Ass_n,^19 ^
Cal.2d 807, 811 (1942) (Traynor, J.); Restatement (Second)---
Judgments § 34(3), at 345 (1982).
U  See also McKinney v. Alabama, 424 U.S. 669, ^ “l ^ o f 76* ' HanshPrrv v. Lee. 311 U.S. 32, 40 (1940); Ashlgy v. City ,of 
.-rar.fcson 4 64 U.S. 900, 902 (1983) (Rehnguist, ,J. , (joined by 
Brennan J., dissenting from denial of certiorari), 18 C.A.
Wright,'a . Miller, & E. Cooper, Federal Practice and Procedure
§ 4449, at 417 (1981).
8/ see Williamson v. 
(2d Cir. 1972), cert.

Bethlehem Steel Corp,_, 468 F.2d 1201, 1203 
denied, 411 U.S. 931 (1973) (private(continued...)



9
The district court held that the principles of res judicata 

and the constitutional mandate of due process were satisfied 
because the plaintiff had been "adequately represented" by the 
City in Johnson. Assuming that such adequate representation 
alone suffices to make a nonparty a privy, the district court's 
conclusion still rests on either or both of two implicit 
assumptions: first, that in defending itself, the City was in
effect litigating on behalf of each of its citizens, so as to 
make it fair to bind them individually to the judgment; or, 
second, that the City had so vigorously litigated the issues in 
Johnson that the plaintiff could not advocate his own viewpoint

more effectively here.
The first of these assumptions is plainly incorrect.

Private parties are not generally bound by government litigation 
to which they are strangers,^ even if the government is 
representing the public interest in the litigation and even if 
the private parties' interests coincide with the

(...continued) **  ̂ . . .plaintiffs not bound by Attorney General's enforcement action 
since they were neither parties nor privies); Restatement 
rsecond) of Judgments § 41(1) (d), illustration 7, at 398 (suit by 
government agency against employer for racial discrimination does 
not preclude an employee adversely affected by defendant s 
employment practices from obtaining other relief); see also 
Cooper, The Collateral Attack Doctrine and the_Rules of 
Intervention: A Judicial Pincer Movement on Due Process, 1987 U.
Chi. Legal F. 155, 164-165 (1987).
9/ A nonparty may be bound to a judgment if he is represented by 
a party who is an "official or agency invested by law with 
authority to represent the person's interests." Restatement 
(Second) of Judgments § 41(1)(d), at 393. That exception is
inapplicable here.



10
government's.-^ The second assumption is also unfounded: even
where prior parties have been diligent (if unsuccessful) 
advocates, nonparties are not precluded by the judgment from 
relitigating the issues.ii/ Nor does the "adversarial" character 
of the prior litigation mean that nonparties or nonprivies should 
be bound by the judgment. See McKinney v. Alabama, 424 U.S. 669, 

674-676 (1976).
Even if the City were an acceptable surrogate for plaintiffs 

at the liability stage of the 1976 litigation, there is no reason 
to suppose that, on the remedial guestions at issue here, the 
City's and plaintiff's interests ever had the same identity.
Thus, plaintiff might propose nonguota remedies that were 
apparently not put forward by the City in 1976. See United

10/ see Sam Fox Publishing Co. v. United States, 366 U.S. 683,
689 (1961) ; Lockoort v. Citizens for Community Action, 430 U.S. 
259, 263 n.7 (1977); Arizona v. California, 460 U.S. 605, 650,
652 (1983) (Brennan, J., concurring and dissenting); Colby v.
.T. c. Penney Co. . 811 F.2d 1119, 1125 (7th Cir. 1987) (rejecting 
doctrine that judge-made rule of "adequate" or virtual 
representation bars nonparties and nonprivies from attacking 
judgment resulting from prior EEOC suit; Williamson v. Bethlehem 
Steel Co.. supra; cf. General Telephone Co. v. EEOC, 446 U.S.
31.8 333 (1980) •Further, even if a judgment against a city-defendant could 
sometimes bind its citizens, it would still be necessary for 
those citizens to have had fair notice of the pendency of the 
litigation and the opportunity to participate in it. See Mallmie 
v rSnt-r-al Hanover Bank & Trust Co. , 339 U.S. 306, 314 (1950) ;_ 
see also Comment, Collateral Attacks on Employment Discrimination 
consent Decrees. 53 U. Chi. L. Rev. 147, 160-163 (1986). Nothing 
in the record suggests that this condition for holding the 
plaintiff's suit barred by res judicata was satisfied.
11/ see Colby v. J .C. Penney Co., 811 F.2d at 1125 ("[i]f as in 
this case the EEOC loses, still the persons on whose behalf it 
sued cannot be bound by the judgment as if they had been parties 
to the EEOC's suit or members of a class in a class action 
certified under Rule 23"); cf. United States v. Maing, 420 U.S. 
515, 527 (1975) (states could relitigate issues previously
litigated by other states).



11
States v. Paradise. 107 S. Ct. 1053, 1082 (1987) (O'Connor, J., 
dissenting). To give just one example: since the findings of
discrimination by the Albany Police Department rested at least in 
part on the adverse impact caused by its unvalidated tests, the 
plaintiff can argue that instead of a quota (now in its 12th year 
of operation), the Department should have been ordered to 
develop and implement job-related promotion procedures .-3̂ / Cf. 
Afro-American Patrolmen's League v. City of Atlanta, 817 F.2d 
719, 722 (11th Cir. 1987).

The lack of a commonality of interest between plaintiff and 
the City is demonstrated in a still more fundamental way.
Whatever the commonality of interests between plaintiff and the 
City in 1976 when the order was entered —  and the existence of 
such commonality is dubious, see United States v. Jefferson 
County. 720 F.2d 1511, 1516 (11th Cir. 1983) —  there is no 
commonality of interests now, when the continuing validity and 
possible modification of the 1976 order are at issue. Both the 
l a w a n d  the facts regarding this case have developed during 
the 12-year interval, and the City's decision not to seek to 
have the original order modified to reflect those changed

As noted above, the Johnson court found that the Police 
Department had used discriminatory tests to promote up to the 
rank of Captain. A nonquota remedy for that unlawful conduct 
could require the Department to develop and implement valid, job- 
related tests. For positions beyond Captain, such as the 
position at issue here, a nonquota remedy could require 
nondiscriminatory selection procedures, whether these involved 
objective tests or other procedures.
il/ The Johnson decision was issued before any of the major 
Supreme Court "affirmative action" cases were decided (the first 
such case decided on the merits was Regents of the Univ. of 
California v. Bakke. 438 U.S. 265 (1978)).



12
circumstances-^i/ underscores the distinctness, indeed the 
adversity, of the City's and plaintiff's interests. Res judicata 
rules should surely be interpreted to allow a nonparty directly 
injured by a prior decree to bring relevant changes to a court's 
attention through a collateral attack —  otherwise, unlawful 
conditions may be unremediable. See Commissioner v. Sunnen, 333 
U.S. 591, 599-600 (1948).-3^/

It might be claimed that the policy of encouraging an end to 
Title VII litigation entails denying a "reverse discrimination" 
plaintiff the right to attack the court decree collaterally. But 
again, there is no reason why the policy favoring finality in 
judgments should be more powerful in the Title VII context than 
in other civil cases (or, to be more precise, why that policy 
should be more powerful in "nonreverse" than "reverse" Title VII

11/ The City could have but has not sought such a modification 
from the district court under Fed. R. Civ. P. 60(b)(6). Cf. 
Griffin v. State Bd. of Educ.. 296 F. Supp. 1178, 1182 (E.D. Va. 
1969) (three-judge district court).
15/ while of course a plaintiff might also seek to intervene in 
the prior litigation rather than attacking the decree 
collaterally, he should not therefore be barred from bringing his 
own suit, since nonparties can refrain from intervening in 
litigation that affects them. See Fed. R. Civ. P. 24; see also 
Chase Nat'l Bank v. City of Norwalk. 291 U.S. 431, 441 (1934) 
("[t]he law does not impose on any person absolutely entitled to 
a hearing the burden of voluntary intervention in a suit to which 
he is a stranger. * * * Unless duly summoned to appear in a legal 
proceeding, a person not a privy may rest assured that a judgment 
recovered therein will not affect his legal rights"); accord, 
Sea-Land Services. Inc, v. Gaudet, 414 U.S. 573, 593 (1974). We 
are defending the position that intervention is not mandatory in 
Martin v. Wilks. Supreme Court Nos. 87-1614, 87-1639, and 87- 
1668, in which the Supreme Court will review this Court's 
decision in the Birmingham case, which implicitly rejected the 
mandatory intervention concept; we have previously defended the 
same position in Marino v. Ortiz. supra; and we are lodging with 
the Court a copy of our brief in the Marino case.



13
discrimination suits), if Congress has not provided otherwise. 
Moreover, the interest in protecting the finality of Title VII 
judgments can be satisfactorily secured simply by application 
where appropriate of the doctrines of stare decisis, comity, and 
the law of the case, without requiring in addition a harsh and

unusual preclusion rule.-i^/
2. In light of the preceding discussion, it is also 

unsurprising that the district court's decision is clearly at 
odds with this Circuit's precedent.

In In re Birmingham Reverse Discrimination Employment 
Litigation, supra, this Court refused to create an exception from 
general preclusion law for collateral attacks by nonparties and 
nonprivies upon consent decrees. 833 F.2d at 1498. The Court 
held that because the "plaintiffs were neither parties nor

16/ See united States v. Maine, 420 U.S. at 527; Colby v. jUC^ 
Pennev Co.. 811 F.2d at 1124; cf. Williamson v. Bethlehem Steel 
Co. 468 F.2d at 1204 (stare decisis did not bar private 
plaintiffs from relitigating suit brought by Attorney General).

It might also be argued that the courts should give prior 
judgments more preclusive effect than consent decrees. See 
united States v. Jefferson County, 720 F.2d at 1517-1518 n.16 ^
(noting this possibility). But there are no apparent reasons why 
court orders and consent decrees are not equivalent for this 
purpose. Court orders can result from weakly or parochially 
defended suits, and consent decrees can result from arms -length 
bargains; and if nonparties can collaterally attack the latter, 
they should also be free to attack the former. Similarly, a 
governmental employer might be unwilling, for reasons having to 
do only with the relative strength of local political forces, to 
seek to have a prior court order modified. Like the defendant in 
the Birmingham case, see pp. 13-15, infra, such a government 
would have only a "stakeholder's" —  or contrary -- interest in 
the jobs governed by that decree. Again, it would accord better 
with due process to allow nonparties to attack such an order, 
just as they could attack the Birmingham consent decree. Note 
also that the policy of encouraging voluntary compliance with 
Title vil —  which has led some courts to give preclusive effect 
to consent decrees —  does not benefit the City here, because the 
plaintiff is challenging a litigated order.



14
privies to the consent decrees, * * * their independent claims of 
unlawful discrimination are not precluded." Ibid^ In reaching 
that conclusion, the Court applied "the same principles of res 
judicata and collateral estoppel that govern ordinary judgments" 
Mbid.l. Guided by these principles, and stressing that there, 
as here, "[plaintiffs'] Title VII claims did not accrue until 
after the decrees became effective and the challenged promotions 
were made" (jjL. at 1498-1499),12/ the Court refused to adopt an 
"impermissible collateral attack doctrine" barring such suits. 
Recognizing the public policy that favors voluntary affirmative 
action plans, the Court nevertheless held that the doctrine 
"would amount to an exception to the res judicata and collateral 
estoppel law that we presently apply" (idj. at 1498). The Court 
rested its conclusion in part on the "due process underpinnings 

of preclusion law" (ibidj.) .
The Court in the Birmingham case noted that "one might argue 

that the individual plaintiffs as City employees shared an 
identity of interest with the City such that they are now bound." 
833 F.2d at 1499. But it rejected that argument on two grounds: 
first, because Birmingham had not been shown to have litigated 
the claims against it vigorously; and second, because "it is not 
clear that the plaintiffs and the City shared any identity of 
interest at all. The City's various interests in this dispute

17/ The apparent unavailability of intervention in this case 
makes further indefensible a collateral attack bar. See 
Jefferson County, 720 F.2d at 1518. _ See also n£5, SSXBX-'
Coodgt rpHo roi l ateral Attack Doctrine and the Rules of 
intervention: A Judicial Pincer Movement on Due Process, 1987 .
Chi. Legal F. at 174-176.



15
conceivably may have conflicted in part with the plaintiffs' 
single interest in preserving preexisting promotion 
opportunities" fibid.). This Court reached the same conclusion 
for similar reasons in United States v. Jefferson County, 720 

F.2d at 1516, 1517-1519.
The Court's reasoning is naturally understood to require 

that a collateral attack on the Title VII court decree here, like 
that on the Title VII consent decree in the Birmingham case, 
should be governed by the ordinary rules of res judicata. 
Similarly, the plaintiff here should be entitled to challenge the 
1976 decree, since the due process concerns that weighed 
decisively with this Court in Birmingham would overcome any 
interest in "finality" as much here as they did there. While the 
City may have litigated the original case vigorously, it is still 
conceivable that the City's interests and the plaintiff's did not 
(certainly they do not now) coincide. The City sought to prevent 
liability for past racial discrimination —  a matter in which the 
plaintiff had no direct interest. The plaintiff is seeking 
relief from the continued operation of the remedy a decree 
which the City might well have found less objectionable than the 
plaintiff does, which it did not appeal, which it has not 
subsequently attempted to have modified, and which it is now 
defending against plaintiff's challenge. In every respect that 
matters, the City's interests in the continued effectiveness of 
the 1976 court order are irreconcilable with the plaintiff's.



16
II.

THE COURT-ORDERED QUOTA IS NOT "NARROWLY TAILORED" TO 
REMEDYING PAST DISCRIMINATION

The district court also held that, even if the plaintiff is 
not bound by the 1976 decree, the quota is nevertheless lawful. 
The district court examined the quota under the tests of the 
plurality opinion in United States v. Paradise, supra, which is 
undoubtedly the Supreme Court precedent most closely on point 
(see R. 1-39-12-13).-^/ However, under those standards, it is
plain that the district court was in error.

2. in Paradise. the Court upheld against attack on equal 
protection grounds a district court order awarding relief in the 
form of a one-black-for-one-white promotion requirement as an 
interim measure for promotions among the Alabama state troopers. 
Applying "strict scrutiny" (107 S. Ct. at 1064) (plurality 
opinion) —  without deciding that that standard was required /

18/ The district court's opinion evinced some confusion, 
however. The court also tested the quota under the two-pronged 
standards of Johnson v. Transportation Agency, 107 S. Ct. 1442 
(1987), see R. 1-39-10-12, without acknowledging that Johnson, 
is purely a Title VII case, not a constitutional case (see 107 S. 
Ct. at 1446 n.2), and that the constitutional constraints on 
race-conscious action may well be more stringent than those of 
Title VII. Moreover, Johnson addresses only voluntary, not 
court—ordered, affirmative action plans.
19/ We have asked the Supreme Court to rule this Term in 
Croson Co. v. City of Richmond, Supreme Court No. 87-998, that 
^strict scrutiny" should be the controlling standard for judicial 
review of all governmental classifications by race, whether their 
purpose is remedial or nonremedial. While this Court has 
already adopted a "strict scrutiny" standard in H.K. Porter Co^V. Metropolitan Dade County. 825 F.2d 324, 330 (11th Cir. 1987), 
cert. pet. pending, Supreme Court No. 87-1001, nonetheless, in 
light of the pendency before the Supreme Court this Term of J .A. 
Croson, H.K. Porter, and this Court's Birmingham decision, the 
Court may wish to "hold" this appeal, pending the outcomes of 
those cases.



17
—  the Court first held that the district court's order served a 
compelling interest in remedying the troopers' "pervasive, 
systematic, and obstinate" discrimination (id̂ _ at 1065).
Further, the Court held that the district court's order was 
supported by its interest in securing compliance with its 
judicial decrees, since the order "was imposed upon a defendant 
with a consistent history of resistance to the District Court's 
orders, and only after the Department failed to live up to its 
court-approved commitments" (107 S. Ct. at 1066; plurality

opinion; emphasis in original).
Turning to the question whether the decree (issued in late 

1983) was "narrowly tailored," the Court examined "the necessity 
for the relief and the efficacy of alternative remedies; the 
flexibility and duration of the relief, including the 
availability of waiver provisions; the relationship of the 
numerical goals to the relevant labor market; and the impact of 
the relief on the rights of third parties." Paradise, 107 S. Ct. 
at 1067 (plurality opinion). The Court found the order 
necessary to the goals of eliminating defendant's "long term, 
open, and pervasive" discrimination (including its failure to 
promote any blacks at all between 1972 and 1979, despite a 1972 
injunction barring such discrimination) and of ensuring 
compliance with prior 1979 and 1981 decrees requiring defendant 
to adopt a promotion procedure without adverse impact (ibid.).
The Court next stressed that the order was flexible and temporary 
(id. at 1070), and as to the relationship between the numerical 
relief and labor market figures, the Court determined not to



18
"second-guess the lower court's carefully considered choice of 
the figure necessary to achieve its many purposes, especially 
when that figure is hedged about with specific qualifying 
measures designed to prevent any unfair impact that might arise 
from rigid application" (id^ at 1072). Finally, the Court ruled 
that the rights of third parties were not unnecessarily 
trammeled, since "the temporary and extremely limited nature of 
the [one-for-one] requirement substantially limits any potential 
burden on white applicants for promotion. It was used only once 
at the rank of corporal and may not be utilized at all in the 
upper ranks. Nor has the court imposed an 'absolute bar' to 
white advancement" (id^ at 1073). See also id^ at 1076 (Powell,
J., concurring); Sheet Metal Workers v. EEOC, 478 U.S. 421, 481 
(1986) (plurality opinion); id. at 485 (Powell, J., concurring 
in part and in judgment).

2. The one-for-one promotion requirement at issue here, 
like the interim quota in Paradise, is designed to serve the 
compelling governmental interest in remedying past racial 
discrimination. However, the requirement at issue here is 
clearly distinguishable from that in Paradise because it fails 
strict scrutiny's second, "narrow tailoring" prong.

First, we stress at the outset that the quota here did not 
have the further purpose, apart from remedying discrimination, of 
bringing a recalcitrant defendant into compliance with 
longstanding but disobeyed court orders. On the contrary, the 
district court itself observed that the City's plan "has been



19
operating smoothly for several years" (R. 1-39-14, n.6).
Hence the latitude which the Paradise Court allowed the district 
judge in dealing with a defendant that "engaged in persistent 
violation of constitutional rights and repeatedly failed to carry 
out court orders" should not be given here (Paradise, 107 S. Ct.

at 1075 (Powell, J., concurring)).
Second, the one-for-one requirement is also not necessary to

achieve the purpose of eliminating the effects of past 
discrimination. The most obvious such measure would be to 
require the Police Department to implement nondiscriminatory, 
job-related promotion procedures for higher-level police 
appointments.21/ Unlike Paradise and Sheet Metal Workers ("in 
light of petitioners' long record of resistance * * * stronger 
measures were necessary," 478 U.S. at 481 (plurality opinion)), 
there is nothing here to suggest that such an approach would be

2 0/

20/ The City's most recent semiannual report to the district 
court also indicates that it has actively sought to comply with 
the 1976 order. See Semiannual Progress Report f °f 
1988, Section 7 "Summary of Hires Since September 1976 (57.2%
black and 42.8% white hires).
21/ This is not to say that the City should have to implement a 
job-related objective test for such positions. "It is self- 
evident that many jobs, for example those involving managerial 
responsibilities, require personal qualities that have never been 
considered amenable to standardized testing." Watgon v. Fort 
worth Bank & Trust, 108 S. Ct 2777, 2791 (1988) (plurality 
opinion); see also icL at 2787 ("[o]pinions often differ when 
managers and supervisors are evaluated, and the same can be sai 
for many jobs that involve * * * complex and subtle tasks like 
the provision of professional services"). A nondiscriminatory, 
job-related promotion procedure for a high-ranking police 30b, 
such as that at issue here, can reasonably allow for the exercise 
of such judgment. Ibid.



20
unavailing.22/ This approach is also clearly preferable to an 
intrusive court-ordered quota of indeterminate duration, not only 
because it is nondiscriminatory, but also because "'[c]ourts are 
generally less competent than employers to restructure business 
practices, and unless mandated to do so by Congress they should 
not attempt it."' Watson v. Fort Worth Bank & Trust, 108 S. Ct. 
at 2791 (plurality opinion (quoting Furnco Construction Co^ v.
Waters, 438 U.S. 567, 578 (1978))).23/

Third, the one-for-one requirement is not "ephemeral 
fParadise. 107 S. Ct. at 1070 (plurality opinion)) —  indeed, it
has already been in effect for 12 years, and neither the 
district court nor the City seems to contemplate an end to it.
By contrast, in Paradise, "the [district] court suspended the 
order when the Department proposed procedures that appeared 
likely to have no adverse impact on minority applicants. It thus 
appears * * * that the one-for-one requirement is likely to be,

22/ mdeed, as the Johnson district court noted (see n.2, 
supra), the City's discrimination, while continuing, was 
diminishing even before its 1976 judgment. Furthermore, while 
the City was indeed very laggard (even as of 1975) in eliminating 
its discriminatory employment practices, it does not appear to 
have violated any court orders, and its post-1975 hiring policies 
suqqest that it no longer discriminates against black applicants. 
Racial preference has generally been upheld as necessary only in 
the face of systemic, flagrant, or repeated acts of 
discrimination. See Sheet Metal Workers v. EE0£, 478 U.S. 421, 
448 (1986) (plurality opinion) ; id.*. at 486-487 (Powell, J ., 
concurring in part and in judgment); Catlett v. Missouri Highway 
& Transp. Comm'n, 828 F.2d 1260, 1268-1269 (8th Cir. ),
Harris v. Marsh. 679 F. Supp. 1204, 1313 (E.D.N.C. 198 ).
23/ See also Connecticut v. Teal, 457 U.S. 440, 463-464 (1^82)
(Powell, J., dissenting) ("simple quota hiring [is] an arbitrary 
method of employment [that is] itself unfair to individual 
applicants, whether or not they are members of minority groups. 
And it is not likely to produce a competent work force ).



21
as the court intended, a 'one-time occurrence'" (idL at 1076 
(Powell, J., concurring)). Here, the district court has allowed 
the one-for-one requirement to stay in place until the Police 
Department reaches the mandatory 60%/40% white/black ratio —  an 
event that even with wholly nondiscriminatory selection 
procedures could still lie in the remote future.21/ The better 
course, followed by the district court in Paradise, would be to 
lift the quota once the Department implements race-neutral, job- 

related procedures.
Fourth, the district court's 1976 order aimed at achieving 

parity between the racial proportions of the general working-age 
population and the racial proportions with each job 
classification within each city department. But such racial 
balance, if sought for its own sake, is unconstitutional as 
post-1976 decisions have made p l a i n . M o r e o v e r ,  unlike the

24/ indeed the City may even assume that its plan requires it 
to maintain! not merely to achieve, a 60%/40% racial balance m  
its workforce. See 9/27/76 letter from the City's counsel to 
Judge Owens (the trial judge in the Johnson case) (R. 1-24-2) 
(stating that one-for-one hiring rule will not apply to a job 
classification "so long as it remains in proportion )• it is, 
of course, impermissible to seek to maintain a racial balance 
indefinitely. See Johnson v. Transportation Agency, 107 S. Ct. 
at 1456. The district court asserted (see R. 1-39-13) that 
particular departments can "come without the confines of the 
Order" if they achieve the 60%/40% ratio. There is, however, no 
record evidence that any department has yet been released from 
the quota and, in all events, the Police Department has certainly 
not, despite no recent evidence of discrimination.
25/ See e.q.. Regents of the Univ. of California v. Bakke, 438 
U S 265* 307 (1978) (opinion of Powell, J.); Wygant v. Jackson 
Bd.of Educ.. 476 U.S. 267, 294 (1986) (O'Connor, J., concurring 
in part and in judgment); Hammon v. Barry, 813 F.2d 412, 422-423, 
430-431 (D.C. Cir. 1987), cert, denied, 108 S. Ct. 2023 (1988); 
Janowiak v. City of South Bend, 836 F.2d 1034, 1041-1042 (7th
Cir 1987), cert, pending, Supreme Court No. 87-1754; Harris v.(continued...)



22
ultimate goal in Paradise of 25% black representation in the 
state troopers, which "reflected] the percentage of blacks in 
the relevant labor market," see Paradise, 107 S. Ct. at 1071 
(plurality opinion), the 40% objective here seems to be 
unrelated to the relevant labor market, and to be based only on 
the figures in the working-age population at large. Since the 
relevant labor market for upper-level police positions is likely 
to be very different from the ordinary population, the 60%/40% 
requirement is inappropriate for that job category.

Finally, the one-to-one requirement does not have "diffuse" 
effects —  see Paradise. 107 S. Ct. at 1074 (plurality opinion),
id. at 1076 (Powell, J., concurring) —  as applied to high- 
ranking, single-incumbency jobs like the present one. The 
particular job at issue here is a single-slot position, only a 
small handful of senior police officers (four) applied for it; 
and once a race-based promotion is made into it, rejected 
applicants get a second chance only if the incumbent either 
retires before they do or is promoted higher.22/ In these

25/ (...continued) _ . _Marsh, 679 F. Supp. at 1312; see also Watson v. Fort Worth Bank _& 
Trust, 108 S. Ct. at 2787-2788 & n.2 (plurality opinion) (noting 
express Congressional disapproval of quotas under Title VII), 
Sheet Metal Workers v. EEOC, 478 U.S. at 421 (Powell, J ., 
concurring) ("neither the Constitution nor Title VII requires a 
particular racial balance in the workplace").

26/ see Hazelwood School Dist. v. United States, 433 U.S. 299, 
308 n.13 (1977) ; Watson v. Fort Worth Bank & Trust, 108 S. Ct. at 
2787 (plurality opinion).
22/ These effects may be felt by black applicants, too; the 
letter plaintiff received from defendant implied that the next 
time the position became open it would be available for a white.(continued...)



23
circumstances, the effects of applying the quota will necessarily 
be concentrated on a small number of readily identified 
individuals and —  rather than "only postpon[ing]" their 
promotions fid, at 1073) (plurality opinion) —  may permanently 
bar their career advancement. Such effects are not 
"diffuse."28/

In sum, then, the long-term and interim quotas here are 
quite strikingly different from those in Paradise and fail to 
pass the "strict scrutiny" standard employed t h e r e . S e e  also 
Wyqant. 476 U.S. at 280-281 & nn.6-8. It follows that the 
district court's grant of summary judgment in the City's favor

27 (...continued)
Thus, the order does not end discrimination, but broadens and 
institutionalizes it.
2J3/ See also Sheet Metal Workers v. EEOC. 478 U.S. at 481 
(plurality opinion) (emphasizing that order "did not disadvantage 
existing union members" or stand as "absolute bar" to union 
admission) (emphasis in original); see also id. at 488 n.3 
(Powell, J., concurring in part and in judgment) ("hiring goal 
in a particularly specialized area of employment [may] have the 
same pernicious effect as the layoff goal in Wyqant").
29/ we have discussed only the apparent constitutional 
deficiencies of the plan in this brief. We would note briefly, 
however, that the Title VII requirements for a court-ordered 
affirmative action plan are quite similar to the constitutional 
requirements, and, for the reasons discussed above, are 
apparently not met here either. Compare Sheet Metal Workers v. 
EEOC, supra. with United States v. Paradise, supra. Plaintiff's 
Section 1981 claim is certainly colorable as well. That statute, 
of course, protects whites as well as blacks, see McDonald v. 
Santa Fe Trail Transp. Co.. 427 U.S. 273 (1976). Moreover, the 
courts have never carved an affirmative action exception out of 
this statute in the manner they have for Title VII; and indeed 
the Supreme Court has recognized that Section 1981 and Title VII 
are not coextensive, General Bldg. Contractors Ass'n v. 
Pennsylvania. 458 U.S. 375 (1982).



24
was erroneous, since the City offered no defense other than the 
existence of the 1976 court order. ^

CONCLUSION
For the foregoing reasons, the judgment of the district 

court should be reversed, and the case remanded for further 
proceedings. Alternatively, the Court may wish to delay issuing 
its decision in this case until the Supreme Court issues its 
decisions in J.A. Croson Co. v. City of Richmond, Supreme Court

30/ while plaintiff is entitled to have the plan removed as 
violative of, inter alia, the Equal Protection Clause, the 
nature of the relief which should be ordered still remains to be 
considered. Plaintiff is entitled to be considered for the 
promotion without regard to his race, but it does not follow that 
he will be able to show that he is entitled to the promotion 
itself, since he may not have been picked in any event. Cf.
R. 1-39-14 n.6.Furthermore, the Court may reasonably decline to penalize 
Assistant Police Chief Long for the City's compliance with the 
1976 decree, and so decide against rescinding the promotion at 
issue. See Firefighters Local Union No. 1784 v. Stotts, 467 
U.S. 561, 579 n.ll (1984); Walters v. City of Atlanta, 803 F.2d 
1135, 1148-1150 (11th Cir. 1986) (allowing "bumping" of incumbent 
for one-of-a-kind job but characterizing it as extraordinary 
remedy); Comment, Collateral Attacks on Employment—Discrimination 
Consent Decrees. 53 U. Chi. L. Rev. at 177 — 178; cf* in—L®. 
Birmingham Reverse Discrimination Employment Litigation, 833 F.2d 
at 1502-1503 (Anderson, J., dissenting). We caution that a 
general rule that plaintiffs in cases of this kind could obtain 
no retrospective relief could chill incentives to bring 
meritorious suits against unconstitutionally discriminatory 
decrees. Moreover, even if the City was attempting here to 
comply with a court order, it may well have been at fault for not 
having sought to have that order modified to meet changed 
circumstances and to prevent undue hardship to innocent third 
persons.The most prudent course in fashioning a remedy may therefore 
be to remand that issue in the first instance to the district 
court, allowing it to make appropriate findings, balance the 
equities, and devise such relief as seems suited to the facts of 
this case.



25
No. 87-998, and in Martin v. Wilks, Supreme Court Nos. 87-1614, 

87-1639, and 87-1688.
Respectfully submitted,
WM. BRADFORD REYNOLDS

Assistant Attorney General
ROGER CLEGG

Deputy Assistant Attorney General

Attorneys
Department of Justice 
P.0. Box 66078 
Washington, D.C.
(202) 633-3870

20035-6078



CERTIFICATE OF SERVICE
I hereby certify that two copies of the enclosed Brief for 

the United States as Amicus Curiae were served by mail on each of

the following attorneys:
C. Nathan Davis
510 West Broad Avenue
Albany, Georgia 31702
G. Stephen Parker
Southeastern Legal Foundation, Inc.
2900 Chamblee-Tucker Road 
Building #4
Atlanta, Georgia 30341
James V. Davis
P.O. Box 128
Albany, Georgia 31702
Thomas S. Chambless 
Watson, Spence, Lowe &

Chambless 
P.O. Box 2008
Albany, Georgia 31703-2001
Chevene B. King Jr.
P.O. Drawer 3468 
Albany, Georgia 31706

'•(xaA OJi/x.

Robert J. pelahunty 
Attorney

This 16th day of September 1988