Macon, Sr. v. Bailar Reply Brief for Appellant

    UNITED STATES COURT OF APPEALS 
FOURTH CIRCUIT

No. 77-1353

MR. HARTWELL C. MACON, SR.,
Plaintiff-Appellant,

v.
HON. BENJAMIN F. BAILAR,

Defendant-Appellee.

On Appeal from the United States District Court 
for the Eastern District of Virginia

REPLY BRIEF FOR APPELLANT

ROBERT B. FITZPATRICK 
Suite 430, Southern Building 
805 - 15th Street, N.W. 
Washington, D.C. 20005 
(202) 737-3334
KENNETH V. FARINO, ESQ. 
Farino & Oksman 
Seven East Franklin 
Richmond, Virginia 23219 
(804) 788-1949
Counsel for Appellant



TABLE OF CONTENTS

TABLE OF CITATIONS
Cases..................................... ii
Statutes, Rules, and Regulations.........  iii
Other Authorities........................

COUNTER-STATEMENT OF THE CASE....................  1

ARGUMENT
INTRODUCTION................................. 15

I. THIS COURT HAS JURISDICTION
OVER THIS APPEAL............................  16

II. THE LOWER COURT’S DISMISSAL OF 
THE CLASS ACTION ALLEGATIONS
SHOULD BE SUMMARILY REVERSED................  18

III. THE LOWER COURT’S DENIALS OF 
AND LIMITATIONS ON CLASS 
DISCOVERY SHOULD BE VACATED
IN LIGHT OF THE REVERSAL....................  20

IV. THE GOVERNMENT'S ATTEMPT TO 
EXPAND THE SCOPE OF APPELLATE REVIEW TO ISSUES NOT CONSIDERED 
BY THE LOWER COURT SHOULD BE
SUMMARILY REJECTED.....................    21

V. AN AWARD OF COSTS, INCLUDING 
REASONABLE ATTORNEYS’ FEES,
IS APPROPRAITE IN THE CIRCUM­
STANCES OF THIS APPEAL......................  2 3
CONCLUSION................................... 24

i



TABLE OP CITATIONS

Cases
Barnett v. W. T. Grant Co.,

5TB- P. 2d 543 (C . A . 4, 1975)...................  18
Brunson v. Board of Trustees of

School District No. One, 311 F.2d 107 
(C.A. TJ 1962), cert, d'enled,
373 U.S. 933 (1963)...........................  16

Chisholm v. United States Postal
Service, Nos. 75-206>8 and 75-2069
(C.A, 4, August 3, 1973)......................  2

Cohen v. Beneficial Industrial Loan
Corp. , 337 U.S. 541 (1949)..... ...............  17

Cotten v. Treasure Lake, Inc.,
^  F.SdTTO- TT7a7 T7T97T)...................  17

Doctor v. Seaboard Coast Line Railroad
Comp any 1 540 F.2d 699 (C.A, 5~ 1976)..........  16

Eisen v. Carlisle and Jacquelin,
517 U.S. 156 (1974) . . . ........................  17

Fears v, Burris Manufacturing Co.,
T E.P.D. H7535 (C . A . 5, 1971)................  24

Hackett v. General Host Corp.,
555“F.2d 618 (C.A . 3, 1972)...................  17

Inmates of San Diego County Jail 
in Cell Block 3B v. Duffy,
528 F. 2d 954 (C. A. 9, 1975)...................  17

Jenkins v. Blue Cross Mutual Hospital 
Insurance, Inc., 522 F.2d 1235
(C , A, 7, 1975)................................  17

Jones v. Diamond, 519 F.2d 510
(C.A. 5, 1975)................................  17

King v. Kansas City Southern
Industries, Inc., 479 F.2d 1259
(C.A. 7, 1973)................................  17

ii



TABLE OP CITATIONS - continued

Knox v, Amalgamated Meat Cutters 
and Butchers Workmen of North 
America, AFL-C10, 520 F.2d 1205
CC.A. 5, 1975)................................  17

Price v. Lucky Stores, Inc.,
501 F. 2d 1177 (C.A. 9, 1974)..................  17, 23

Rolax v. Atlantic Coast Line 
Railroad Co., l86 F.2d 473
(C.A, 7, 1951)................................. 24

Rowe v. General Motors Coro.,
557 F. 2d 348 (C.A. 5 , 1972)...................  18

Share v. Air Properties Co,, Inc.,
538 F. 2d 279 (C.A. 9, 1976) , . ..................  17

Simmons v. Schlesinger (Brown),
551T"F.2d 1100 (c7a . 4, 1976)............ ...... 2, 11

Weit v. Continental Illinois National 
Bank and Trust Co. of Chicago,
535 F. 2d 1010 (C.A. 7, 1976)..................  17

Williams v. Mumford, 511 F.2d 363
(C.A.D.C,, 1975)............................... 17

Yaffe v. Powers, 454 F.2d 1362
CC.A. 1, 1972)................................. 17

Statutes, Rules, and Regulations
28 U.S.C, §1291................................... 17
28 U.S.C, §1292................................... 16
Title VII of the Civil Rights Act of

1964, as amended...............................  1
Rule 23, Federal Rules of Civil Procedure..... 9
Local Rule 7 (4th Cir.)..........................  12

iii



TABLE OF CITATIONS - continued

5 C.F.R. Part 713................................ 2
42 F.R. 11807-11811 (March 1, 1977)..............  2

Other Authorities
Some Preliminary Observations Concerning

Civil Rule 23, 43 FRD 39 (1967)............... 21
Wright & Miller, Federal Practice and

Procedure...................................... 21

iv



COUNTER-STATEMENT OF THE CASE*

Mr. Hartwell C. Macon, Sr., the plaintiff-appellant
herein, has been employed by the United States Postal
Service and its predecessors since 1953 [AR.86]. Since
the fall of 1973, plaintiff-appellant, a Negro, has been
seeking redress for alleged violations of Title VII of
the Civil Rights Act of 1964, as amended by the Equal
Employment Opportunity Act of 1972. Specifically, he
alleges that the Postal Service, the defendant-appellee
herein, excluded him from the position of General Foreman
(PES-17) at the Vehicle Maintenance Facility (VMF) in

1/Richmond, Virginia on account of his race. In his 
initial judicial complaint, plaintiff-appellant alleged 
that the Postal Service excludes blacks from PES positions

* The counter-statement is based in large part upon 
the administrative record adduced during the pro­
cessing of plaintiff-appellant’s administrative 
EEO complaint lodged against defendant-appellee that 
is the basis for this‘civil action. The entirety 
of that record was filed by defendant-appellee with 
the District Court and is a part of the appellate 
record. The page references that appear herein as
[AR.___] are references to the page number in that
administrative record.

1/ As will be later detailed, plaintiff-appellant alleges 
that he was denied temporary and, later, permanent 
assignment to this position on account of his race.

1



on account of their race [A. -4—5H - The lower court dismissed
the class allegations from the initial judicial complaint 
on the ground that plaintiff-appellant had failed to ex­
haust available administrative remedies for the presenta-

3/tion of class claims [A.64]. There follows a somewhat 
detailed statement of the underlying facts pertaining to 
the appeal from the lower court’s decision to dismiss the 
class allegations.

Plaintiff-appellant has been employed since 1969 as 
an Automotive Foreman (PMS-15) in the Vehicle Maintenance

2/

2/ The government admits that prior to April 18, 1977 
there were no procedures for the filing of an admin­
istrative class action against the Postal Service and 
it therefore would have been futile for a complainant 
to file such an administrative action. The procedures 
set forth in 5 C.F.R. §713-251 were not intended to allow the filing and processing of such claims. See 
42 F.R. 11807-11811 (March 1, 1977).

3/ The lower court’s decision was based exclusively upon 
the decision of this Court in Simmons v. Schlesinger 
(Brown), 546 F.2d 1100 (C.A. 4, 1976) in which this 
Court, based upon the government's earlier represen­
tations, had opined that the Civil Service Commission 
had provided administrative procedures for the pre­
sentation of class claims in 5 C.F.R. §713.251. Thereafter, the government filed a Motion to Vacate in 
Part and Remand in Simmons in which the government 
admitted that there had been no procedures prior to 
April 18, 1977 for the filing of an administrative class 
claim against a federal agency and that it would have 
been futile for a complainant to file such a claim.
On October 4, 1977, this Court granted the government's 
motion, withdrew its earlier decision on exhaustion of 
administrative remedies, and remanded the Simmons case 
to the lower court. See also Chisholm v. United States 
Postal Service, Nos. 75-2068 and 75-2069 (C.A. August
3, 1977).

2



section at the VMF in Richmond, Virginia. As such, he 
reports directly to the General Foreman of Vehicle Main­
tenance (PES-17) [or Acting Manager of Vehicle Maintenance 
as the position was titled until the fall of 1973]- The 
General Foreman, in turn, reports directly to the Manager 
of Fleet Operations (PES-21).

In addition to the Vehicle Maintenance section, there 
is a Vehicle Operations section. In this section there 
are Vehicle Operations Analysts who report directly to the 
General Foreman of Vehicle Operations. This General Fore­
man, in turn, reports to the Manager of Fleet Operations.

On July 23, 1973, Mr. M. A. Carroll, Jr., a Caucasian, 
assumed the position of Manager of Fleet Operations at the
Richmond VMF. Shortly thereafter, Mr. Carroll removed the4/
incumbent Acting Manager of Vehicle Maintenance [AR.51].
On the same day, Mr. Carroll detailed Mr. John H. Lomas, a

5/white employee who was junior to plaintiff-appellant,

4/ Plaintiff-appellant'alleged in his EEO investigative 
affidavit that this Acting Manager and all of his 
predecessors had promoted from within the ranks of 
persons employed in Vehicle Maintenance. No black has 
ever held the position of Acting Manager of Vehicle 
Maintenance even though the workforce is predominantly 
black. [AR.36-38].

5/ Plaintiff-appellant commenced employment with defendant- 
appellee in 1953 and prior thereto had been employed 
by another government agency, whereas Mr. Lomas com­
menced employment with defendant-appellee in 1961 and 
had no prior government service. [AR.86,144,148-150, 
&160-162].

- 3 -



to the position of Acting Manager, Vehicle Maintenance,
6/

at the VMF. [AR.52]. Prior thereto, Mr. Lomas had been 
employed as a Vehicle Operations Analyst in the Vehicle 
Operations section.

On October 26, 1973a Mr. John G. Mizell, the Sec­
tional Center Manager-Postmaster, issued a request for 
nominations in order to fill on a permanent basis the 
position of General Foreman, Vehicle Maintenance (PES-17) 
at the Richmond VMF. Four individuals, including

7/plaintiff-appellant and Mr. Lomas, were nominated. Under 
the Postal Service's PES promotional procedures the nominees 
were to be reviewed and ranked by a district review committee 
which was to recommend the nominee to be selected.

Two forms pertaining to each nominee were submitted 
to the district review committee for review: Estimate of

6/ On October 23, 1973s the title of this position was
changed to General Foreman, Vehicle Maintenance (PES-17). 
[AR.146].

7/ Nominations could be made by designated supervisors
throughout the Colonial District and by self-nomination. 
Plaintiff-appellant was nominated because he requested 
that he be nominated under the self-nomination proce­
dure. One nominee was from the Petersburg SCF and the 
other three were from the Richmond SCF. When Mr. Mizell 
submitted the three nominees from the Richmond SCF, he 
"requested" that the nominees be considered in the 
following order:

1. John Lomas
2. Hartwell C. Macon, Sr.
3. Robert L. Johnson. [AR.157].

4



Potential (PS Form 2577) and Personal History Summary 
(PS Form 991). PS Form 2577 estimates the potential of 
the nominees in the following terms:

1. Quality of Performance;
2. Capacity to Learn;
3. Judgment;
4. Personal Growth; and
5. Motivation.
Each nominee can receive a maximum of 20 points in

each of the foregoing categories. Mr. Lomas received a
total of 84 points; whereas plaintiff-appellant received a

8/
total of 47 points. [AR.158&163]•

PS Form 2577 also estimates the employee's highest 
level of potential attainment within the Postal Service.
Mr. Lomas was estimated to have the potential to attain the 
level of PES-21; whereas Mr. Macon was estimated to have the 
potential to attain the level of PES-17* [AR.159&164].

On November 13, 1973, an all-white district review 
committee met to revibw the four nominees for the position

8/ The Estimate of Potential was completed by Mr. Carroll 
and Mr. T. B. Leecost, Sr., the General Foreman of 
Vehicle Operations who is black. Mr. Lomas had worked 
under Mr. Leecost's supervision from 1968 until de­
tailed as Acting Manager; whereas Mr. Macon had not 
worked under Mr. Leecost’s supervision since 1968.
[AR.351.

5



Theof General Foreman, Vehicle Maintenance, PES-17. 
committee recommended the following nominees in order of 
selection:

1. Mr. John H. Lomas (Caucasian);
2. Mr. Hartwell C. Macon, Sr. (Negro); and
3. Mr. Calvin B. Green (Caucasian). [AR.171]. 

Thereafter, on November 30, 1973 the selecting official,
Mr. J. G. MIzell, selected Mr. Lomas for the position of 
General Foreman as of November 24, 1973- [AR.173]-

On November 30, 1973; December 3, 1973; and December 
19, 1973, plaintiff-appellant met with an EEO Counselor for 
the Postal Service regarding his then informal complaint 
that the detail and subsequent permanent selection of Mr. 
Lomas for the position of General Foreman violated Title

9 /

9/ The all-white committee was composed of the following 
persons:

a. Mr. F. J. Lathan 
Customer Service Manager 
Colonial District Office;

b. Mr. W. A. Sykes 
Support Representative 
Colonial District Office; and

c. Mr. Marion Carroll 
Manager, Fleet Operations
Richmond, Va. Post Office. [AR.143&146].

Mr. Carroll had already rated Mr. Lomas higher than 
Mr, Macon. [AR.157].

6



10/
VII of the Civil Rights Act of 1964, as amended.
[AR.178-181]. On December 19, 1973 the EEO Counselor 
informed plaintiff-appellant that he was unable to resolve 
the complaint and of his right to file a formal complaint 
of discrimination. [AR.180].

10/ In a letter to the EEO Counselor, plaintiff-appellant, 
who was unrepresented by counsel until immediately 
prior to the filing of his initial judicial complaint, 
described his complaint as follows:

"In reference to Executive Order 11590 
ammended [sic] by Public Law - 9226_ dated 
March 24, 1972 and by the Postmaster's Plan 
of Action dated July 1973, to concer [sic] 
with this order, I report the following 
problem.General Foreman, Vehicle Maintenance 
(1601-1606) P.E.S. 17 was posted in this 
section October 29, 1973-I made a formal request to Mr. M. A.
Carroll to be nominated for this position, 
supplying him with all of my qualifications 
and experience through the years.

On November 24, the record shows that 
Mr. John H. Lomas has been detailed to this 
position: Mr. Lomas is new in this section
and does not know the job.

I have covered three courses to cover 
all phases of this job at the University of 
Oklahoma,'one as recent as September 1973-

All White employees that were in line 
through the years, have been given the 
opportunity to work this job.

I feel that, if opportunities were 
equal I would have the chance to work this 
job on detail until such time as a decision 
is made on filling it.This I can see as nothing other than 
racial discrimination on the part of Mr.
Marrion [sic] A. Carroll." [AR.182].

- 7 -



On December 27, 1373 plaintiff-appellant filed a
formal sworn complaint of racial discrimination which
stated in pertinent part:

"I feel that Mr. Lomas being White and 
I being Black caused me to be denied 
Equal Employment Opportunity." [AR.186-88].

Thereafter, an EEO Investigator of the Postal Service 
investigated the complaint [AR.141-185], the Postal Service 
issued a finding of no discrimination [AR.132] and plain- 
tiff-appellant requested a hearing on his complaint; a 
hearing was held and the Complaints Examiner recommended 
a finding of no discrimination on the complaint that 
plaintiff-appellant had been denied promotion on account 
of his race [AR.110-118]; the Postal Service adopted this 
recommendation [AR.109] and plaintiff-appellant appealed 
to the Appeals Review Board of the Civil Service Commission; 
the Board rescinded the decision of the Postal Service on 
the ground that it had neglected to investigate and decide 
the allegation that plaintiff-appellant had been denied 
the detail to the position of General Foreman on account of 
his race [AR.101-102]; the Board remanded the matter for 
further investigation of the allegation;~ an EEO Investigator 
of the Postal Service then investigated that allegation and 
the Postal Service recommended a decision of no discrimina­
tion [AR.18-19]; on January 20, 1976, plaintiff-appellant

- 8 -



appealed that decision to the Director of the EEO Division 
of the Postal Service [AR.15-17].

On July 26, 1976, the Postal Service Issued a final 
decision on plaintIff-appelant's complaint filed December 
27, 1973 [AR.6]. On the same date, the Postal Service 
advised plaintiff-appellant in writing that he could file 
a civil action within thirty (30) days of his receipt of 
that final decision or appeal to the Appeals Review Board 
C AR.5]•

On August 25, 1976, plaintiff-appellant filed this 
civil action as a class action. The initial judicial 
complaint described the class and the claims being 
asserted on its behalf as follows:

IV. Class Action
5. Plaintiff brings this action on his 
own behalf and as a class action pursuant 
to Rule 23(a) and (b)(2) of the Federal 
Rules of Civil Procedure on behalf of 
all past and present black employees of 
the Postal Service who have been, are 
being or will be adversely affected by 
the unlawful and racially discriminatory 
employment practices alleged herein.

. . . [A.51-
The initial judicial complaint later describes the 
allegedly unlawful and racially discriminatory employment 
practices as follows:

9



10. The procedures followed by the 
Postal Service in the case of the 
plaintiff have been and continue to be 
followed by the Postal Service In 
selecting persons for positions in the 
PES schedule. This selection system 
operates to exclude blacks from posi­
tions in the PES schedule.
11. The Postal Service' has, and is, 
engaged in acts and practices which 
discriminate against the plaintiff and 
the class he represents on the basis 
of race. These acts and practices 
include, but are not limited to, the 
following:

a. Failing and refusing to pro­
mote the plaintiff and other blacks 
to positions in the PES schedule;
b. Reliance upon all-white review 
committees to recommend candidates 
for promotion to positions in the 
PES schedule; and
c. Reliance upon a subjective 
rating form (Estimate of Potential).

. . . [A.7-8].
Six days after the initial judicial complaint was filed, 
the putative class' representative commenced discovery by 
the filing and service of a set of interrogatories and a 
request to produce [A.10-18]. Answers to interrogatories 
and to the request to produce were filed by the defendant 
on December 1, 1976 [A.2].

On December 8, 1976 the government filed a motion to 
dismiss the class action allegations of the complaint [A.2].

10



In support of the foregoing motion the government argued 
that the class action allegations should be dismissed for 
failure to exhaust available administrative remedies. On 
December 29, 1976 the lower court entered an Order which 
read in pertinent part as follows:

Defendant's objections to the 
interrogatories and motions to pro­
duce are SUSTAINED.

Defendant's motion to dismiss the 
class action allegations is GRANTED.
Simmons, et al v. Schlesinger, et al,

F.2d (4th Cir. No. 75-2182 
6 December 1976).

Discovery hereunder shall be limited 
to encompass information relevant to 
employment practices affecting black 
VMF employees in the' Richard Sectional 
Center in PES and PMF levels who are 
not members of collective bargaining 
units.

. . . [A.65 ] •
On January 27, 1977, a notice of appeal was filed by the

11/putative class' representative. [A.65].
On January 25, 1977, the defendant filed a request to 

produce documents. Plaintiff refused to produce the

11/ After this appeal was docketed, plaintiff-appellant 
moved for an extension of time within which to file 
his brief and appendix until thirty (30) days after 
this Court's decision on the petition for rehearing 
in Simmons v. Schlesinger, No. 75-2182. This Court 
granted that motion to extend time until fifteen (15) 
days after Simmons was decided on rehearing.

11



documents in response to the request to produce on the 
ground that the taking of the appeal had divested the lower 
court of jurisdiction to proceed until the appeal had been 
decided. The lower court, in an opinion issued on March 
14, 1977, held that it had not been divested of jurisdic­
tion over the plaintiff’s individual claims; refused to 
exercise its discretion to stay proceedings with respect to
plaintiff’s individual claims; and directed the putative

12/
class' representative to produce the documents. There­
after, discovery, as limited by the Court's Order of 
December 29, 1976, resumed.

On October 4, 1977 this Court issued its decision in 
Simmons in which it withdrew its earlier decision upon 
which the lower court herein had relied and remanded the 
matter to the lower court. Thereafter, the plaintiff- 
appellant herein moved for summary reversal pursuant to 
Rule 7 of the Local Rules of this Court on the ground that

12/ The putative class' representative had argued that the 
government was not entitled to production of the 
privileged attorney-client communications described in 
its request to produce as "[a]ll documents, agreements, 
or other papers setting out the fees he has agreed to 
pay his attorneys for representing him in this action." 
The Court never decided whether such documents were 
privileged and if so, whether the privilege had been 
waived in the instant case because the putative class' 
representative decided to authorize disclosure of such 
documents.

12



that this Court's decision in Simmons ought to govern the
disposition of this appeal. This Court declined to rule 
upon the motion for summary reversal at that time and 
directed that plaintiff-appellant's brief on the merits be 
filed.

On November 7, 1977 the lower court convened in cham­
bers a first pre-trial conference. Based upon factual 
representations made during that conference the lower court 
terminated all discovery as of that date and scheduled a 
trial for December 13, 1977 on the individual claims of the 
putative class' representative. Thereafter, the lower 
court denied a request that trial be stayed and that discovery
be re-opened until after this Court had issued its opinion

13/resolving the appeal.
Thereafter, plaintiff-appellant requested that this 

Court intervene and stay the trial scheduled for December 
29, 1977. On December 22, 1977 this Court entered an Order 
that provides that "the trial of said case be and it is 
hereby stayed Until final disposition of the above-numbered

13/ The lower court did agree to postpone trial for sixteen 
days to permit counsel for the putative class to seek 
and obtain an opinion from the Legal Ethics Committee 
of the District of Columbia Bar Association. A Pre­
liminary Opinion was issued by the full committee on 
December 20, 1977. By letter dated January 4, 1978, 
the Committee has been requested to clarify and amplify 
its opinion.

13 -



Plaintiff-appeal or until further order of this Court." 
appellant's motions for expedited consideration of this 
appeal and for leave to communicate with members of the 
putative class have been held in abeyance, as has the 
motion for summary reversal, pending consideration of the 
briefs on the merits.

- 14 -



A R G U M E N T

INTRODUCTION

We have traced in some detail the long and sometimes 
arduous path that the plaintiff-appellant has followed in 
his quest for redress in order to underscore the importance 
of our request that this Court:

a. Summarily reverse the lower court;
b. Issue directions that the lower court on remand 

vacate its denial of class discovery and the 
limitations placed upon class discovery, allow 
such class discovery to proceed forthwith and 
conduct an evidentiary hearing on class certifi­
cation after completion of class discovery; and

c. Direct the government to reimburse the plaintiff- 
appellant for the costs, including reasonable 
attorneys' fees, incurred in what has been a 
patently vexatious undertaking by the government.

Summary reversal is manifestly appropriate because the 
government is no longer seeking affirmance of the lower 
court's Order and has not properly advanced any alternate 
ground for affirmance. An Order vacating the class discovery

15



denials and limitations is appropriate as those denials and 
limitations were unquestionably predicated upon the lower 
court's acceptance of the government's argument that it did 
not have jurisdiction over a class action. An award of all 
costs, including particularly attorneys' fees, is especially 
appropriate in light of the time and monies expended by 
the appellant and his counsel as a direct result of the 
government's frolic.

I. THIS COURT HAS JURISDICTION 
OVER THIS APPEAL

The lower court's Order of December 29, 1976 dismissed 
the class allegations of a complaint wherein the putative 
class' representative sought injunctive relief. Twice, this 
Circuit'has held such an order to be appealable of right 
under 28 U.S.C. §1292(a)(l). Brunson v. Board of Trustees 
of School District No. One, 311 F.2d 107, 108 (C.A. 4,
1962), cert, denied, 373 U.S. 933 (1963); Doctor v. Seaboard 
Coast Line Railroad Company, 540 F.2d 699, 704-05 (C.A. 4, 
1976). ("The plaintiffs in this_case seek injunctive relief. 
Their appeal, so far as it relates to class certification, 
is accordingly within the rule enunciated in Brunson, 
allowing appeal of right from an order of the District Court

16



denying class certification.”) Accordingly, we submit
15/that this Court has jurisdiction over this appeal. And,

upon reflection, we submit that it would be inappropriate

14/

14/ Accord: Yaffe v. Powers, 454 F.2d 1362, 1364-65
(C.A. 1, 1972); Hackett v. General Host Corp., 455 
F.2d 618, 622 (C.A. 3, 1972), cert, denied, 407 U.S.
925 (1972); Jones v. Diamond, 519 F.2d 510, 511 
(C.A. 5, 1975); Jenkins v. Blue Cross Mutual Hosoital 
Insurance, Inc., 522 F.2d 1235, 1237-38 (C.A.7, 1975); 
Price v. Lucky Stores, Inc., 501 F.2d 1177, 1179 
(C.A. 9, 1974); Inmates of San Diego County Jail in 
Cell Block 3B v. Duffy, 528 F.2d 95^, 956 (C.A. 9, 1975)- 
Contra: Williams v. Mumford, 511 F.2d 363 (C.A.D.C.,
1975); Weit v. Continental Illinois National Bank and 
Trust Co. of Chicago, 535 F.2d 1010 (C.A . 7~, 1976).

15/ In the event that the government should argue that the 
rationale of Brunson and Doctor has no application to 
the instant appeal or that although that rationale 
applies, it is incorrect as a matter of law, we would 
demonstrate that the Order of December 29, 1976 sounded 
the "death knell" of Mr. Macon’s individual claims and 
consequently is a final appealable order under 28 U.S.C. 
§1291. See Williams v. Mumford, surpa; Knox v. Amalga­
mated Meat Cutters and Butchers Workmen of North 
America, AFL-CIO, 520 F.2d 1205 (C.A. 5, 1975); Cotten 
v. Treasure Lake, Inc., 518 F.2d 770 (C.A. 6, 1976);
Share v. Air Properties Co., Inc., 538 F.2d 279 (C.A.
9, 1976). Contra: Hackett v. General Host Corp.,supra;
King v. Kansas City Southern Industries, Inc., F.2d
1259 (C.A"! 7, 1973) • Although the're may not be enough 
information before the Court for it to apply the "death 
knell" rule Intelligently, appellant would file an 
affidavit with this Court to establish that the "death 
knell" doctrine plainly applies. Such an affidavit would 
only be filed if the government challenges this Court’s 
jurisdiction to hear this appeal as the appellant would 
be disclosing privileged attorney-client communications 
and matters that are being handled on a confidential 
basis by the Legal Ethics Committee of the District of 
Columbia Bar Association.Finally, the Order may be appealable under the 
"collateral order" doctrine enunciated in Cohen v. 
Beneficial Industrial Loan Corp., 337 U.S. 5^1, 546 
(1949) and later in Eisen v. Carlisle and Jacquelin, 417 
U.S. 156, 1972 (197477

17



for this Court to hold this appeal in abeyance pending a 
decision from the Supreme Court in the three consolidated 
cases discussed in our Status Report. Instead, this Court 
should reaffirm its prior unanimous holdings in Brunson 
and Doctor and proceed to summarily reverse the lower 
court.

II. THE LOWER COURT'S DISMISSAL OF 
THE CLASS ACTION ALLEGATIONS 
SHOULD BE SUMMARILY REVERSED

Some considerable time ago, the appellant embarked on
a quest to redress on behalf of himself and a class of other
blacks adversely affected by the discriminatory promotional 

16/
system. In a motion to dismiss the government contended
that the lower court did not have jurisdiction over the 
class action allegations. At considerable time and expense 
the appellant responded to those contentions. The lower 
court, as did this Court in Simmons, accepted the govern­
ment's arguments and dismissed the class allegations. The 
appellant then appealed to this' Court, once again at con­
siderable time and expense. After the appellant's scarce 
resources had been depleted in countering the government's 
arguments, the government announced that it will no longer

16/ Cf. Barnett v. W. T. Grant Co., 518 F.2d 543 (C.A . 4, 
1975); Rowe v. General Motors Corp., 457 F.2d 348, 359 
(C.A. 5, 1972).

18



argue that the court did not have jurisdiction over the 
class action allegations. And, as if to justify its 
frolic, the government proceeds to ask this Court to decide 
issues patently not before this Court.

Plainly, if the government has determined that its 
argument that the court does not have jurisdiction over 
the class action allegations is not meritorious, it ought 
to unequivocally confess error and join with the appellant 
in requesting summary reversal. Surely, the appellant is 
entitled to the secure knowledge that he is not precluded 
as a matter of law from bringing a class action before he 
and his attorneys spend more time and monies on this puta­
tive class action. It seems to appellant to be fundamen­
tally unfair to deny him that security. Accordingly, the
appellant prays that this Court summarily reverse the lower

17/court, rather than merely remanding the matter.

17/ The government reference to its decision to no longer 
argue that the court does not have jurisdiction over 
the class action allegations as being for "policy 
reasons" causes appellant to wonder if the government 
might not later decide for "policy reasons" to re­
assert these arguments in this or some other case. It 
is just such considerations that lead appellant to pray 
for a clear adjudication that as a matter of law the 
court does have jurisdiction over the class action 
allegations.

19



III. THE LOWER COURT’S DENIALS OP 
AND LIMITATIONS ON CLASS 
DISCOVERY SHOULD BE VACATED 
IN LIGHT OP THE REVERSAL

In conjunction with its dismissal of the class action
allegations, the lower court's Order of December 29, 1976
sustained certain objections to discovery propounded by
the putative class’ representative and severely limited
the future discovery that could be taken by the putative
class' representative. Many of the sustained objections
were bottomed upon the government's contention that class

18/
treatment should be denied as a matter of law. The
discovery limitations imposed by the lower court were 
predicated upon the notion that no discovery could be taken 
thereafter to establish that class treatment was appropriate. 
Plainly, if this Court should reverse that portion of the 
lower court's Order that dismissed the class allegations, 
the other portions of the Order should be vacated.

After reversal and upon remand, the lower court will 
be called upon to decide the propriety of this action pro­
ceeding as a class action. In order to assess properly 
the suitability of this case for class treatment, the lower 
court must have access to the facts pertaining to the pro-

18/ See Brief in Support of Defendant's Objections to
Plaintiff’s First Interrogatories and First Request 
to Produce filed on November 2, 1976.

20



priety of this case proceeding as a class action. Yaffe
v. Powers, supra, 454 F.2d at 1366-67. Accordingly, the 
denials of and limitations upon discovery designed to 
demonstrate the propriety of this case proceeding as a 
class action should be vacated so that appropriate dis­
covery may be taken and so that, upon completion of that 
discovery, the lower court can make a class action deter­
mination upon a complete record "as soon as practicable."

IV. THE GOVERNMENT’S ATTEMPT TO
EXPAND THE SCOPE OP APPELLATE 
REVIEW TO ISSUES NOT CONSIDERED 
BY THE LOWER COURT SHOULD BE 
SUMMARILY REJECTED

The government’s brief is devoted in large part to 
arguments on issues that are manifestly not before this 
Court. Moreover, much of the government brief is devoted 
to idle speculation and asks this Court to issue an advisory

19/ The time at which class determination is "practicable" 
will necessarily vary from case to case. 7A Wright 
and Miller, Federal Practice and Procedures §1785, 
pp. 129-130; Some Preliminary Observations Concerning 
Civil Rule 23, 43 FRD 39, 4l (1967).

21



opinion. This effort to expand the scope of review
to such matters should be summarily rejected.

It is beyond question that none of the arguments 
described in the government's briefs at pages 7 through 32 
were addressed to the lower court. The questions before 
the lower court were admittedly two-fold:

a. Is the filing of an administrative claim a non- 
waivable, jurisdictional requirement which each 
member of the class must satisfy in order to 
secure the sovereign's consent to suit; and

b. Is the filing of an administrative claim a 
waivable requirement that each member of the 
class must satisfy in order to exhaust adminis­
trative remedies.

And, the arguments presented in the government brief herein 
unquestionably would not have been addressed to the lower 
court in order to convince the lower court to decide either 
of those aforementioned questions in the government's favor. 
Accordingly, these arguments do not suggest some alternate 
ground for affirmance on the issue decided by the lower 
court. Instead, the government asks this Court to consider

20/

20/ It seems to us that the government's discussion of
tolling at pp. 17-22 of its brief is nothing more than 
speculation and calls for an advisory opinion from 
this Court,

22



issues not before it. Most importantly, the issues 
should only be decided after a complete record has been 
adduced and are Issues to be determined by the trial 
court initially. Price v. Lucky Stores, Inc., supra,
501 F.2d at 1179- This Court should summarily reject the 
government’s attempts to expand the scope of review and 
should allow the lower court to decide these questions 
upon a complete record.

V. AN AWARD OF COSTS, INCLUDING 
REASONABLE ATTORNEYS' FEES,
IS APPROPRIATE IN THE CIRCUM­
STANCES OF THIS APPEAL

The prosecution of this appeal required that appellant 
expend a considerable portion of the scarce resources he 
has at his disposal for the overall prosecution of this 
case. Additionally, his attorneys have devoted a consider­
able number of hours to the appeal, that could have been 
devoted to the prosecution of the merits of this case.

In the peculiar circumstances of this appeal, the 
government ought to be required to reimburse the appellant 
for all costs, including attorneys' fees, incurred as a 
result of its vexatious conduct. This Court, of course, 
has the equitable power to award attorneys' fees where an

- 23 -



unfounded defense has been maintained in bad faith, 
vexatiously, wantonly, or for oppressive reasons. See 
Rolax v. Atlantic Coast Line Railroad Co., 186 F.2d 473, 
48l (C.A. 7j 1951); Fears v. Burris Manufacturing; Co. ,
4 E.P.D. 117535 (C.A. 5, 1971); 6 Moore's Federal Practices 
H54.77[2] at p. 1709 (2d ed., 1976).

For the foregoing reasons and for the reasons set 
forth in our earlier brief, appellant prays that this Court 
summarily reverse the lower court's Order of December 29 3 
1976, direct that the lower court vacate its denial of and 
limitations on class discovery in light of the reversal, 
and award to appellant the costs of this appeal, including 
reasonable attorneys' fees, on the ground that the 
government has been vexatious.

CONCLUSION

Respectfully submitted

R 7Suite 430, Southern Building
805 - 15th Street, N.W.
Washington, D.C, 20005
(202) 737-3334

tfie

24



KENNETH V. FARINO, ESQ.
Parino & Oksman 
7 East Franklin
Richmond, Virginia 23219 
(804) 788-1949

CERTIFICATE OF SERVICE
I hereby certify that on this 11th day of January,

1978, the foregoing Reply Brief for Appellant was mailed 
by first class mail, postage prepaid, to David G. Karro, 
-Esq., U.S. Postal Service, Office of Labor Law, 475 L'Enfant 
Plaza West, S.W., Room 9371, Washington, D.C. 20260 and 
Eliot Norman, Esq., U.S. Department of Justice, U.S. 
Attorney's Office, Eastern District of Virginia, P. 0.
Box 257, Richmond, Virginia 23210.

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