Stallworth v Arnow Petition for Writ of Certiorari

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T/ii: Mo n s a n t o c o m p a n y ,
Real P a r t y  in  t .

K1TJTION FOR A WRIT OF MANDAMUS

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DAMNS M. NAHUIT, I H
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Petition 1 or a V.'rit of 
Slot or.uut. of the Case

M.andai.us

Proceed i no.'; in the? District. Court
The Order of Re!crenct* of March 24 , ) 07 5 

Quo:;t ion:; Presented 
P.hASONS FOR CiV.MTJNC Tflb V.’IUT

Intreduction
J. The District Cour t. Had !*o Power to 

Dele gate the Trial of All Ihr.v.a i n in< j 
Liability Insues to a Special Master 
Pursuant to Title Yll.

II. 'flic; District Court Had bo Power to 
Delegate the Trial of A .11 Remaining 
lr.sues of Liability to a Special Mas­
ter Purr.uant; to Rule f>3(b).

Conclusion
Appendi>: A
K>: h i.b its:

1 . Order; elated 9/12/74 granting partial 
suniiui ry ^judgment and pro 1 inti nary in — 
;i’.inc Li on

2. Pre-trial order dated 12/20/74
3. Letter from Court to counsel dated 

12/26/74
4. Order for iniunctive relief^deted 

3/7/7 3
5. Order on proceedings dated 3/11/75
6 . Proposed order submitted by plain­

tiffs on 3/12/75
7. Order on 1 aches dated 3/20/75
0. Order of reference to Special Mas­

ter, dated 3/24/75
0. Motion to revoke order of reference 

by plaintiffs dated 3/24/75
10. T: mr.cri pt (nartiu 1 ) of lustring on 

March 24, 1075

1
2
2

1 0 
16
1 7 
17

1 9

2 5
!G
29

t
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i

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11. Letters frow counsel to ttpeci 
openj fving portiouu 01 rocuid, 
3/2C/7 •’>

1 Master 
d it ted

Certificate of Service
Ct rl i f i cate

The undersigned, one of the attorney;; for petitioner:;, cert i- 
f ier; that the parties lifted below have an interest in the outcome 
of this cause. This certification is made in order that Oudr.es of 
the Court n;:y evaluate possible disqualification or recusal under 
Local Ku1 a 13 of this Court.

1. The named plaintiffs, Eddie Stallworth, Henry Gholst.cn,

donas Fairlie and Jesse lord.
?. The class of black employees, former employees, and

rejected job applicants at Monsanto's Pensacola, Florida facility.
3. The Monsanto Company.
4. The Honorable. V.'inn ton F.. Arnow, United States Dis­

trict Judge, northern District of Florida.
5. The Honorable Harold D. Crosby, Special Master.



IN  TJ1K DNTTKD STATES COURT OF APPKA1.S

FOR Till: FIFTH CIRCUIT

KDDIII STALLWORTH, et. n].,
Petitioner:;, 

v .
n o r o r a r t.k w i n s t o n  r:, a rn ov?,
Uni ltd staler, District Judge for 
t'nc Northern District of Florida,

Respondent,
THE MONSANTO COMPANY,

Re a 1 Party in Int cro s t..

P • - j T"-: QM FOR A V?RTT OF MANDAMUS

Pursuant to 23 U.3.C. r, 16f>l, Petitioners, by their 
undersigned ;it t orncyr., move'this court to issue a writ of 
mandamus directing the United Slates District Court for the 
Northern District of Florida, Honorable Winston K . Arnow, Judge, 
to vacate its order dated March 2*1, 1075 referring petitioners'
claims to a Special Master for trial on the merits, and directing 
the court to proceed to a hearing of those claims as expedi­
tiously as possible. Because the Special Master proposes to 
begin proceedings on March 31, 1075 and to continue intermittent!
thereafter, petitioners pray that this Court expedite consider i- 
t i on o f th i s r’ e t i l i on.



VI

petitioners cure compelled Vo nook n writ of mandamus by 
the highly mu'ijual recent, proceed j ngs below. They have been 
denied an opportunity to introduce any evidence in r.uppert of 
the i r clair.* defendant war;, however, allowed to proceed to trial 
on it:; defences. The case was then referred generally to a 
Special Master for trial without meaningful guidelines, and in 
circumstances ensuring substantial present delay. The reference
also raises the sub;st ant ia 1 pos s i b i 1 .i i y V h a t any decision
based on the Specin l Mas ter prooocdiiitj:; in vh .i c h f i ndi ngs of
fact and conclusion:s O f: I aw a.re made would be .i nvalid and WOU 1
require re-trial follow! no isppea 1 . Fill illy, the: refcroncc
prevents pi aintiffs from i nt roducing evidence before the court 
that would support and require certain general findings already 
made by the court on critical issues; at present those findings 
are unsupported by specific findings or any evidence in the 
record.

As grounds for issuing the writ, Petitioner's respectfully 
show the foil owing reasons:

St. atomont o £ t he- Case 
proc< '< _d ings i n the_p i strict; Court

1. This proceeding, Mo. 73-4 5--C.i v-P, N.D. Fla., Pensacola 
Division below, is. a class action challenging Monsanto’s across- 
the-board practices of employment discrimination, under 42 li.S.C. 
<•'; 1901, 2000e-2(a). The four named plaintiffs, all black 
employees of Monsanto, represent a class of more than COO present 
employees, an unspecified number of retired or otherwise termi-



natcd black employees, and an unspecified number of discriminn- 
torily rejected black job applicant:*?.

2. Petitioner.*?, plaintiffs below, filed their complaint: 
on April' 13, 197?.. The complaint sought declaratory, injunctive.
and monetary r e 7i c f .  There ): ad p r e v i o u s l y  been f i l e d  j.)) the

same court  a r o l a ted c i v . i l  a c t i o n  .sty led Penial Pmpl oym< MVt

O. '"; o tu! t y Com i * ' ;! Mi Mot? i to  ('o'.'.v itiv, No. 73 —31—tl i  v-l>.

both cases  were ass igned  t o  t ie Respondent ju d ge .  Tin? two eases.?

were t heron ft*  - r , on robruary 5, 3 974, eons io l ida ted  f o r d i  r.co v e r y

and in  February, 1 97!> f o r  t r i a .
3. 1)5. si co very and pre-tri a 1 inoti or\ procccding s have been

fj.d rns ivo in this case- , re rail ting ;in a ‘voluminous and detailed
record and ill a series of hearings? and confcronccs be fore■ t.he
Respond* ni judge. 3 he parties apptmred be fore the Reopenident
on at leant nix different occasion.*; prior to March 1, 3 97 b.
Among thc-:;c hearings van an evidentiary hearing conducted on 
July 30-31, 1974 on plaintiffs' motions for preliminary injunction 
and partial, summary judgment. The Respondent heard approximately 
eight witnesses? and received voluminous? documentary evidence 
including 29 plaintiffs' exhibits at that: time.

4. }-‘ol lowing the hearing described above, the court, on
September 12, 1974, granted plaintiffs?' motions? in part. Specifi­
cally, it found that certain of defendant *s testing practices; 
and its. high school education requi rumen t for certain jobs wore 
unlawful. Tt thereupon enjoined those practices and granted 
plaintiffs partial summary judgment with respect to those issuer.. 
It denied plaintiff*:' motions seeking judgment and relief ns? to



certain othei is. in to those latter issuer the court
1/

■s. At:
made no definitive f i ml i nys nisei reserved the issuer, for trial.
The issues presented at the motion lioarinq v/erc some, but less

2/
than ait, of plaintiffs' class: for injunct,ive relief. A copy 
of the court ' ■ orders, granting and denying plnintiffs* notion.'; 
is attache:! hereto as Kxhibit " 1.".

b. on December 26, 197-1, the court filed a pre-trial order
sctt.i ny the case for trial beginning March 3, 197b and scheduling
further pre-trial procedures. Also on December 26, 197*1, the:
Respondent informed counsel fen* all parties by letter that the 
court had set: aside the entire month of March for trial . Copies 
of the pre-trial order and letter are attached hereto as
Dxhibits "2" and "3", respectively.

{>. A pre-trial conference was hold oh February 2*1, 197b.
At that conforencc , Respondent <■Xplessed the desire that the
case be concluded within the morit h set a:; i d c for trial but ind
cated, <is in the c:court's letter of Dccomljor 26 to counsel
(exhibit 3), that if additional time were necessary to try the 
case the court, vould .seek to make such time available. Further, 
the parties agreed lo explore the possibility of settling some 
of the issues in the case.

preliminary relief and summary budgment was, denied as to a number of other issues, including various testing practices;, 
Mensunto's seniority system, and discrimination in selection of
fore:;m-n. c 1 oricaJ s, and lechnici ans.
2/ i:• M • # in the* pre-tri al orde r filed on Fcbr nary 1 A, b'71.,,
p 1 a in Vi f1 s. list'd 19 d ispnted issues of fact. and 20 disputed
i s s ur *!% O f law (see part s VITi A, 1X A, and TX B of pre-trial
orde r) . Them* V» issue !*. were left open after resolution of about
b i ssues by the court's inter1ocutory orders.



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with the- ] ini t od < >.c< pti.on of its findings of discrimination
contained in the orders dated September 12, 1974, Exhibit "I" 
here to. for had.Monsanto consented or .stipulated t:o any such 
f i nd j raj: .

10. The parties appeared for a mooting with the court, on 
March 10, 107 5. The Respondent t hereupon announced Unit , in
hir. view, the March 7 order consti luted a f inding of class-wide 
discrimination by Monsanto against the: plaintiff class. Purthor, 
the: court announced its intention to proceed forthwith, hearings 
to begin on March ill, 3 “75, t o hear evidence on two of Monsanto':: 
affirmative .defenses s the alleged lac); o f , jurisdiction to enter— 
tain the l.'ROC action (Ho. 73-3)) ; and the defense of leches t o 
plaintiffs' had; pay claim in (Ho. 73-45). plaintiffs expressed 
their objections to this procedure of hearing defendant'& 
defenses before plaintiffs’ ease in chief.

13. On March 11, 1975, the court entered an order in light
of its parch 7, 1975 order. The March 11th order, attached 
hereto as Exhibit "5", provides in pertinent, part,

2. Pack pay matters will, unless settled by l lie 
parties between themselves, be referred at. an 
appropriate- time to a master to make findings 
and recommenda Lions.
3. Prior to reference the court will determine 
the- issue of- lach.-s and the KECXT's rigid to 
maintain its act.ion. It will also consider at 
request cd part is s d< t ei min.it i on prior to
velerca'-e (oil such other issuer, as the parties, -
or any of them, believe will provide appropriate 
guidelines, either for interlocutory appeal 
purposes, or lor the master.

12. At the March 10, 1975 conference, the court had directed 
plaintiffs to submit proposed findings of liability as to the

-r>-



nreas covered by the March 1, 1975 injunctive order. 1*1 aint i i 1 r>
submit fed such a proposed order on March l-?» 1975. 7\ copy
thereof .is alt celled as Exhibit "6" hereto. To thin date the 
court, has entered no order t'iitdi.no liability, based on plain­
tiffs 1 submission or otherwise.

13. On March 11, 1075, the court conducted a day-long
evident i v y  hearing on issue-: related to the court's jurisdiction 
over the hT.CC case (Po. 73-31). Pared on this evidence and the 
arguments of counsel, the court on March 12, 1975 dismissed the
EEOC s u i t .

14. on March 3?, 1973, the court began an evidentiary
hearing on Monsanto's defense of laches. Plaintiffs were prepared 
to begin their trial presentation; their opening witnesses and 
exhibits wore present. The court, however, dec!inod to allow 
plaintiffs to introduce any testimonial or documentary evidence
as to discrimination by Monsanto or the Company's liability 
vet non for bad; pay or other monetary award. Plaintiffs objected 
to this hearing of the affirmative defenses prior to and in the 
absence of any opportunity for plaintiffs Lo present their 
evidence of discrjminalion and liability.

15. Over these objection:;, Respondent continued to hear 
evidence on the laches issues for four days, March 12-14 and 
March 17, 1975. During this hearing, plaintiffs attempted to 
introduce documentary c-vidence and witness testimony th.it would 
ordinarily be part of their case in chief, as relevant to the 
laches defense. Respondent refused to allow introduction of any 
of plaintiffs' evidence of discrimination or liability. Based

- 7 -



March

1 r i n f ♦ ♦ $ ‘he Court on March 20, 1971.> 1•nter't'd an order
a i n t.iffS' bac): p cl ai rus t. 0 a ]c»r<;e ex11 cat ba 4ir red *by
ec j.>y is a tCache d as Exhibit ••7" lie1 et c» .

On !•1 ‘1 rch 1 7, 1 97 9 in a root.i on cii!tilled "Plaint iff:: '
corn' i n-j Tho sc issue s Still To Re Tr i cd Hy The Court /
mov eel t he 1court to try al 1 iss ue1 . * ref 11 'C ted in the i r
i nri.i’ 1 g s of fact ,and cone 1us ions of 1 aw. In tn0 i r

It; O f i on , pi:1 :i n t Iffs s p e d  f ical iy Cel11 ed to the cour L * j

attention Chat. the only liability of record was the Kurm.iry 
jndcjn.cnt order regarding two of Mormnnto ’ many tests and it*-. 
)).ic;h school requirement . Plaint* £f« also explicitly opposed 
t,'° reeferra) of pattern and practice iacuos to a Mauler.

1/. On March 17th, the court .indicated tl.it it had decided 
to r < •lex* cm .ns.s-w.ule .issues of clj serin j nation to a fh-.ee j. a 3 Poster, 
Llms denying plaint.i ffa '. motion of the same dale. The court, 
again, indicated that it in to rpre tod the order of March 7, 1975
as a finding of class-wide liability.

.Id. Respondent had announced his intention to refer the 
case t.o a Special Master during the week of March 10, 1979.
All parties submit Led motions and memoranda concerning the 
reference; the plaintiffs preserved their objections to the 
Special Master procedure.

19. On March 29, 1979, the court entered an order referring
the ca.e to a Special Master, the Honorable Harold c. Crosby, 
for further proceedings. 7v copy of that order is attached hereto 
ns Exhibit "11". The order of reference is analysed, infra.



20. On Kai*ch 23, 1975, p l a i n t i f f ? ;  f i l e d  a M ot ion  to  Revoke

the Ordor Appoi nt ing Kp
mot ion argued iIr.i L r c• fei
(a) tho cot:N- f- J. c. ad n ac; o i
issue, the 11 1ja r' a ui i non
and (b) the crv,irt war; w .i
1 at e sf age, V 1 th lhe i n l
the ] it i ga tio!*l . 'l'he cox

on the same dat e .
21. At an open court hearing immediately foil owing entry

of the order of reference, the Respondent introduced the special
Master to the parties and yielded the bend; to him. The Special
Master thereupon announced his intention to begin to hear the
case in the days open on his .schedule; during coining weeks (Tr.

3/
9~]1). The Special Master stated that nil hearings before April 
1-1, 197S would be fox' tho purpose of' explaining the case to him,
dealing with motions and procedures, and hearing "short-range 
type evidentiary matters," but not for trial of the main case 
(Tr. 10-11).

22. Had the Respondent proceeded to hear plaintiffs' case 
as originally scheduled, it is highly probable that trial pro­
ceedings would have concluded before April )4, 1075. Under the
order of reference, .it is highly doubtful that the Special Master 
proceedings— taking of evidence before the Special Master, 
preparation of the Master's report to the court, specification 
of objections thereto by the parties, designation and preparation
— The citation "Tr." is to a partial transcript of this March 24 
1975 hearing, attached hereto ns Rxhibit "10".

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of relevant- parts of the transcript' for the ’district judge— can 
be completed for many months.

23. At. the March 24, 107!i hearing, the Special Master 
rocfuoste 1 that the parties dcsi ynnto those port ions of the 
massive record v.’hich he.* would need to revi<v jn order "to become
ticq ua i ntcd willi prior activity" in the case (Ti . 3 1). Counsel
for both s id e s have rcisnonded with letters indica t ing the noces-
sity for the Me!is tor tc> rc v} c-w n very ext en sivo amount of material.
see copi es of lottci*s attached ns Exhibit "13 A" and "33 B" hereto 
The }t*•spendent judge was a] ready familiar with much of thi s 
material.

The Order of_ Reference of Har d ) 24, 197 5
In the order of reference to the special Man ter, t ne dis- 

tr i.et. court stated that it had "in effect" found that Monsanto 
had discriminated against the class on the basis of its order 
of March 7, 1075 (see Ex. "0", p.3). The court thereupon 
referred all issuer, related to back pay liability to the Special

VMaster. Ex. "8 ", pp. 1-2.
The March 7 order will not support a finding of back pay 

liability. The order was entered by the court on motion of the 
plaintiffs. While it was not a "Consent Order" as such, the

under the law of this Circuit and the clear statutory command.
42 U.S.C. If ?t>00e-5 (g) r a findi iif i of diner i mi nv) t or / id f,yiiell t
Prac t i cos i s a j»rccomi i 1i oi i to any back paV i)Wa rd. Jn 1 ms on vt
("oedvear 'Ii r<[ • f, !:lublv'r c o. , A 0 1 J .2d 13 04 (i.th Ci r . 3 074) ;
Be It wav v. A:. or t c (M r. t T ron pit-e Co. , 40A r.2d 2 1 1 (5th C i r .
1 074) ; i’. i>:t < •I V . S d,fdnn '«ii rIlCI.ir i'efining Corp., 4 05 r. 2d 4 37
(i*th Ci r. J VV •*) ; 1<(M(: r lUhit' S. V • \'.i 4 S  t. TCXd.h r,ot or i’rr*iqh t, 50i»
E. 2d AO (5th Ci r. id/-;).



p a r t i j - . ee  ’ r  i c a l  1\ * J L i  p u 1 a 4' o d  Ol 1

n o t  i s  S>O •; e  i  t s o n t r y r. o r  w o n  1 il t h e

o a  t h< •r i  n t h e  c!! i s  t . »; i c■ 4- c o u r t . o r  o n

t h e  « n t /" V o  : 1 1io  o r cJc •r o f  M a i . c?h  7

w a s  a f i n d i n g  1>V t h a d i s t r i e t c o u r

1 i s  t s — t h o Wont1! e r l  i c is n d  IJMC- a n d

r *  • d  i j ; c r i  m i n s t o r y i . e p  f . e m b i 1 2 ,

K x .  " 0  " I* • ‘1 , y 10 -

•cl on the record that 1lu y did 
seek reviev.' of the* order 
ppoal. At the 1-jme of 
* only liability of record 
that two of Mo»r ento'r

The March 7 "Consent Order" contains only j.n;innc.*t:.i.ve pro- 
video;;. 'j L oxpijci tly rec.ll.en that Monsanto admits no liability
and that liability in expressly denied by Monsanto (L*>:. "8 " p. 1
v 1) . It further reciter, tha t nothinq in the order shall 
directly or indirectly be deemed to effect back pay or other 
individual relief (id., >:■. 12, A 31).

The only class-wide liabilit.y found by the district court
in its Order of Reference bused on the March 7th Consent Order
are its findimjn of discrimination in the selection of tech-G/
nicians, clericals, and foremen (i_d. , p. 5, «j 11). These f indings 
are supported by no specific findings, as to historical or 
present employment, criteria or selection procedures, racial com­
position of jobs, or other evidentiary matters.

The majority of the issues of class-vjdo discri ina1 ion
that plainti fs have sought to raise before the district court

Under thi 
1o infer var 
would shift 
vidual class

s port i on of the Order, .it. is arguably imnermi ss.i hi 
ion-, citterns and practice.'} of discrimination wh i ch 
the bunion of going forward as to whether an indi- 
1T" tr.ber suffered racial discrimination.

e

( > /  J.t doe:; not .appear that the order 
landing ttiat the s< si Lori t y system is 
foe p. , infra. (j_d. , p.li, • C) .

of reference incIndies n 
racially discriminatory.

11 -



have been referred to the special Master for fin initial 
urination of liability ve 1 non. Of the 15> issues in the 
the court lias attempted to resolve 3 issues by entering

deter—
.7/C ■' > s c ,

i ind ins:;
\ yof liability based on the March 7th "Consent Order"; the court

has resolved one issue completely by summary •judnuient for 
*>/defendant 

do fendnrit s 
to the Mas 
law on the 
this case

a n d t w o i  s  s l i t r. p a r t . i  a  1 l y b y  s Ul r. i v . a r y  j u d q m o n t s

1 0 /

• A 1 1 o f 1 ) » o 9 p i u s l ' e  i t;i a i  n i n g i s s u e s w e r e  r e

t  0  r " t o m  a  k Q h i c f  i m i l n g s o f f a c t  a n d  c o n e  1 u  s i

i  s : ; u e  s r  c m a  i n i  m i f o r r  0  s o l i d i o n a n d  d e t e r m i i i a

it

for
ferred 
ons of 
t ion i n

Tc• 1. :i lie '! s . l i e : ;

Of the eiqht different kinds of tests and training programs
11/;it the defendant Comnanv, the court lias referred seven and pert 

13/
of the eighth to the Special Master.

Plaintiffs' factual and legal challenge to these tests 
based on disparate treatment analyses , illegal impediments to

J/ See Appendix 1\, jn_Tra.
1/ Cleric.il Personnel, Technicians, and Foremen (id., p. 3 , 5; II). 
0/ Discharges, layoff and recall (i_cl. , p.2, 13(3)).
10/ Advanced Analytical Method of Training (AAMT) (id., p.2,
*[ B (1) ) ; more difficult work (ijd. , p.2, t 13(2)).
J 1 / All citations are to the March 2*1 th Order of Reference; 
" M " ; Mechanic .Vsessmen t (p.-l, « I * ( 7) ) ; T n t erred i a ter. Assc 
(p.4, «; 1 > (fl) ) ; hlectrici). .and Instrument.;; (p.*1, c p(0)); Pc 
House, ’ .’or;. 1 .and 2 (p.d, « M(lO-ll)); Cere:-: pahr.e 2 (p. 5,
Manpower bevel opnent. (p. 3, <| J> ) ; and Phase in tests for 
position (p.4, •; 0 (12)).

Fx.
.esn.ent 
v.o r
•: I> (2) ) J. 1 III

12/ Advanced 7\n«a 1 y 1 ica 1 Method of Training 
challenged; on 3, summary judgment granted 
order of March 11 (p.2, •; 13(1), p.3, 1 D) ,
to Master (p.3, «; 0(3)).

(AAKT) , 
for clef 

and 3 tc
Mix tests 
emlant s by 
sts referred



"ri ght 1 ul place" of rinse MHrbors, nr!>itr;irinrss of cut-off 
scores, and in-pact and validation i nnucs h.ivo not been hoard 
or determined by the. district court (see Appendix A, also ]>;. 0, 
Order of Reference). A determination of the testing
is .sues wi] 1 have a profound effect on the back pay aspect of the 
1itiga Li on.

Id ci<1 !KJ * • m
At the very heart of plaint i ff r. * ca.ee is the issue of the 

discriminatory effect of tho defendant's "prior request" or 
bidding system on tho class of GOO or more black:;. This class- 
vide; pattern and practice issue has been referred to the- Master 
for a determination of liability (id., p.5, \ p).

J*.eni ori t v by- t r ;.i
It does not appear from the Order of Reference that the 

court has made u finding that the open: at ion oi the defendant 
Company's seniority system is racially ’discriminatory (jid_. , p. 5, 
5! (’) • liven had the court done so, the consent, order of March 
7th, absent a record which plaintiffs, have; not been permitted

decided by the court; nor specifically referred to tho Mar. 
However, tho general grant of unlimited authority to the 
by the court permits the Master to hear these issuer, if Iv­

or.
Ins ter

3.V ito nak e, provide• Jj no has is for such '" findings.• 1 S

7 7 ’ ,von w i t h a go tiera 1 finding of d:i scriminat i on on t he

ii

f;t in or i t ’y system » t liero a r<- speci fir unresolvc• d i S sue‘ s of the id i so fra ;nat.ory t. ( c(Ct o f t.kio r.eniru i tV system, such ais the. total *c.vcl n. i i o:a of bl ic: kt * rroir. t !v; initial at a f f .ing of nev.’ly c rt 'a t od •-

jobs n t t.lic ■ del»*n< 1ant Co : . ! > t iin-/. Thes< • issues h;avu nr a been %

chooses (id., p.7 1 )

-1 .1-



Hiring and Tnitiul A nr..inn::̂ 'nt
Both the insuos of c 1 ass—wi d o discriminatory hiring and 

the ini tial assignment prnct ices of the defendant Con.pany have 
been referred to the Master for findings of liability (id., p.C,
V 1 ) . Any relief lor the largo class of black job applicants 
represented by plaintiffs would depend upon his finding.

Other J ssues
The following issues were also referred in tot o to the 

Special Master without any prior findings, 1 imitations, guide­
lines or instructions for resolution: whether the defendant
Company engages in a policy of firing and payment of salaries 
to members of the class who are salaried employees (Kx. ' B" ,
«: J at p.C) ; whether there is a clns.s-wid.o pract ice of di serimi.— 
natory appl ication of medical disqualifications in order to 
exclude blacks from employment and promotion (Ex. "0" , «: K at p.C) 
what general theory or methodology should be applied to back 
pay calculation (Ex. "8" , *j; b at p.C); and such questions as 
attorney's fees and defendant's liability for adjustments to 
pension and retirement programs (Ex. "0"* at pp. 6-7).

Tn addition, the Master has been given the power to delimit 
the issues which the district court will certify for interlocu­
tory appeal. Although both parties presented their positions 
on issues which the district, court should certify in extensive: 
written submissions, the entire matter was referred to the 
Master (lx. "0" , 3 at p.C).

Further, by the Order of Reference, plaintiffs are precluded 
from presenting evidence before the Master which will provide a

-Id-



arcba.«-sis for those findings that: the district court states 
supported by the March 7th order. The district court has pre­
cluded the Muster iron, inquiry .and plaintiffs will not be 
allowed to malic a record on those issues (l'.x. •’o” , y c and II at 
P.5).

OP; ViT'J isi 1.1'-'-'jdb'b')

Di.il I he? district court abuse its discretion when, niter 
two years of litigation and a week of evidentiary hearings on 
defendant1r defenses, it referred the "remaining issue?;" which 
included virtually the entire case, to n Special Master for 
plenary determinations;

1 . Under § /06(f) ('») of Title. V'.LJ, which provides for use 
of must- rn in narrow circumstances where reference will expodj to 
resolution of the case?

2. Under Rule .13, pod. )\. civ. lb, which allow:; reference 
of cases to n master in exceptional circumstances?

- i  r>-



T!IF. V!RT1RJl'J'.Ob'S ! OR *1(1

I nt ;ct ion
Plaintiffs have not boon permitted to try their lawsuit 

before the district court . The court lias refused to hoar any 
proof of defendant company's liability; the only issue tried 
by the court is the company's defense of laches. Nevertheless, 
the district court has made goncrul findings of fact on severe.] 
liability issues. In support of this determination, the court 
cites the consent order of March 7, 1775 dealing with appro­
priate .injunctive relief as "in effect" finding that the company 
is 3 iable to plaintiffs. The con sen 1 order, however, states;
"This order is entered without any admission of liability what­
soever by Monsanto, such being expressly denied by Monsanto." 
Moreover, the consent order fails even to address most of the 
issues of liability plaintiffs have alleged. in these circum­
stance's., reference to a master to hear all unresolved issues, 
to recommend findings of fact and conclusions of law, and proposed 
judgment means th.it the district court has essentially delegated 
the trial of the lawsuit.

The reference is all the more extraordinary because of the 
subject matter of the law.suit, racial discrimination in defendant
company's employment practices. ]t would bo difficult to
• . . /imagine a case whoso trial before an experienced federal district
judge is more necessary or important, see Donne 1 1_pougl as
Core, v. Green, 411 U.S. 791, 800-07 (1073); Hutchings v . m i. tod 
States industries, 428 P.2d 303, 3)1 (0th Cir. 1070). The 
district court's delegation of the greater part of a trial to a

-  1(, -



9

special master i s unpreccdenl ed in Til In VII and civil ri ghtn 
1 it i.fjat:ion ijonernlly, iind was bascii on .1 novel construction of 
it recently enacted Title VTI provision concerning reference. 
This Circuit has hitherto not considered whether this or any 
district court can delegate a Title v n  trial on such a basis.

issuance of (lie writ of mandamus to review the district 
court's reference to n spec! it 1 master is appropriate when the 
reference is a clear abuse of discretion that "amounts to 
little less than an abdication of the 'judicial function doprivi 
the parties of a trial before the court on the basic .issues 
involved in the litigation," bn levy v. powes heather Co., 3 52
lb S • 24 9, 256 (1957) and "nullifies the right to an effective
trial before a constitutional, court," In re v.’atl; i nr., 271 p. 2d 
271 , 27a cir. 1 9 5 9 ) ,* TPO, Inc, v. Mcy.il Ion, 460 P. 2d 348
(7th Cir. 1972); Trerar.i v. Kiel)a rdson , 4 71 r. 2ii 12 68 (7 th Cir.
1972). Compare peacon Tl cat m s  , ■i *, v . V.vStf )VC;jr, 359 U.S. 500
511 (1959). This unpre:ccden fed dole ga t.i.on of a T.i t.l e VII case
is also an "issue of first impression" proper for the exercise
of thin Court's supervisory power, Schl agenhauf v._Hrd dor, 379
U.S. 104, 110-12 (1904), in which "the writ serves a vital 
corrective and didactic function," bill v. United states, 389 
IhS. 90, 107 (1967). compare Panders v. Kusse 1 1 , 401 p. 2d 241
(3 th Cir. 1908); United r-lnt.es v. Hughes, 413 p. 2d 1241, 1 248-
4 9 (5th Cir. 1969).

Plaintiffs have repeatedly objected to the reference and 
sought its revocation below, without success. Absent the writ., 
plaintiffs have no .adequate remedy. "The remedy of an appeal

-  1 7 -

*



from the final judgment would scarcely he adequate, and if 
successful in overturning an adverse judgment flowing from the
reference, would, at the price of [another] trial, demon?'tra to, 
an presently contended, that only one was permitted." in re
y.'<~» thins, supra , 271 F . 2d at 275; TPO/__JI__nc._v._McM.i lieu, supra,
400 F. 2d at 362; cf. 1~1 ovK-rs v. C^ouch-V.Aal her Corp. , 8 EPD 
*39046 (7th Cir. No. 74-1163, December 18, 1974).

T1JE DISTRICT 
Ti3S TRIAL OF 
TO A SPECIAL

COURT HAD NO POWER TO D3 
A LI i REMAINING b lA D IL IT Y  
MASTER PURSUANT TO T IT  LI

LEGATE 
JSSUUS 
: vil.

The order of March 24 refers broad issues, including most 
of the claims made in this case, nearly two years after the 
complaint was filed and after the commencement of trial by a 
judge who had become familiar with the issues, to a Special 
Master who had no previous exposure to the facts, issues, or
proceedings, and no prior experience as a judge in similar cases. 
The inevitable effect of this reference will be to delay resolu­
tion of this case by a substantial period. This result is 
inconsistent with the statutory provision under which reference
was made.

The Me aning of JL 706(f)(5)
In support of the reference, the district court order cites 

§ 706(f) (5) of Title VII of the Civil Rights 7>ct of 1964, as 
amended, 42 U.S.C. § 2000o-5(f) (5) . Section 706(f)(5), added 
by the 1972 Amendments, is a narrowly drawn provision:

-  1R -



It shall be the duty of the judge designated 
pursuant to this subsection to assign the case 
tor hearing at the earliest practicable date
and to cause 
exnodi ted.

he case to be in every way 
such judge has not scheduled the

case for trial within one hundred and twenty 
days after issue has been joined, that judge 
may appoint a master pursuant to Rule 53 of the 
Federal Rules of Civil Procedure.

On its face, the district court's discretionary power to appoint 
masters can only be used to discharge the mandatory "duty" "to 
assign the case for hearing at the earliest practicable date 
and to cause the case to be in every way expedited." Furthermore, 
two other conditions must be met: (1) the specific period for
reference is when the "judge has not scheduled the case for 
trial within one hundred and twenty days after issue has been 
joined"; and (2) the appointment is made "pursuant to Rule 53 
of the Federal Rules of Civil Procedure."

Further light on the meaning of § 706(f)(5) is shed by its
sister provision, § 706(f)(4):

In the event that no judge in the district is 
available to hear and determine the case, the 
chief judge of the district, or the acting 
chief judge, as the case may be, shall certify 
this fact to'the chief judge of the circuit 
(or in his absence, the acting chief judge) who 
shall then designate a district or circuit 
judge of the circuit to hear and determine the 
case.

This provision plainly expresses a preference for judicial trial.
If the two provisions are to be read consistently, § 706(f)(5)
cannot be construed to permit the unlimited use of masters. To
do so would be to effectively nullify § 706(f)(4).*

Congress intended that reference serve the limited purpose 
of expeditious adjudication of litigation at a particular stage. 
The House-Senate Conference Committee Report states:

19



Section 706(f)(4) and (5) —  Under these para­
graph:;, the chief judge in required to designate 
a district judge to hear the case. if no juoge is 
available, then the chief judge of the circuit 
assigns the judge. Cases are to bo heard at the 
earliest practicable date and expedited i;i"every 
v’av. If the jndco has not scheduled tin: case for 
trial within 13 0 days after is.sue has been foTncri 
he may appoint a raster to hear the case under 
Rule 53 of the Federal Rules of C i. v i 1 Procedure.
The purpose of this provision is to relax the”'"very 
strongest requirements of Rule 53 which preclude 
appointment of a master except in extremely unusual cases.
Senate Comm, on Labor and Public Welfare, Legisla­
tive History of the Equal Employment Opportunity 
Act of 1972, 92d Congress, 2d Sens. 1731 (1972)
[emphasis added]

Congress intended only that the purpose of expeditious adjudicatio 
of Title VII cases may be considered a presumptive "exceptional 
circumstance" within the meaning of Rule 53(b) for this class 
of references. This legislative history also confirms that 
reference is proper under § 706(f)(5) only during the period 
a trial had not been scheduled 120 days after joinder of issue.

This assessment of § 706(f)(5) is consistent with the inter­
pretation of the Seventh Circuit in Flowers v . Crouch-Walker 
Corp., supra, the only other court known to have considered the 
metoning of the statute. The issue in Flowers was whether an 
automatic reference pursuant to a local rule of court assigning 
all Title VII actions to a full-time magistrate is consistent 
with § 706 (f) (4) find (5). The Seventh circuit vacated the refer­
ence .

In language that is unmistakably clear, Congress 
has imposed upon the judges of the court themselves 
the duty to assign cases under the Civil Rights Act
of 1964. It has indicated_a preference to have the
case hoard by a judge, and has authorired the anpoTnla­
ment o f a master_to hear such a_case only when a
particular picigc lias determined that ~~t~hat siTocYf ic

20



case cannot be- heard within 120 dnvs after issue 
has been -joined. [en.phasis acidedJ 8 EPD at p. 6511.

Inapplicability of <: 706 (f) (5)
Reference to the special master for trial of practically 

the entire case clearly docs not serve the express statutory 
purpose of expediting the adjudication of this litigation. The 
master's lack of experience in adjudicating federal Title VII, 
civil rights or labor law matters; the total unfamiliarity of 
the master with the facts and prior proceedings; the need for 
the parties to acquaint the master with the facts and prior 
proceedings before he is able to hold hearings; and the inter­
mittent nature of hearings owing to other commitments of the 
master all emphasize that such a reference will counter rather 
than assure expeditious adjudication. This is true here, see 
pp. 8-9 , supra, and generally. It lias long been known that,
"There is no more effective way of putting a case to sleep for 
an indefinite period than to permit it to-go to a reference 
with a busy lawyer as referee." Vanderbilt, Cases and Materials 
On Modern Procedure and Judicial Administration 1240-41 (1952)
quoted in La Duv v. Howes Leather Co., supra, 352 U.S. at 253

14/n . 5.

\a / "it is a matter of common knowledge that references greatly 
increase the cost of litigation and delay and postpone the end 
of litigation. References Eire expensive and time-consuming.
The delay in some instances is unbelievably long. Likewise, the 
increase in cost is licayy. For nearly a century, litigants and 
members of the bar have been crying, against this Eivoidable
burden of cost and this inexcusable delay." Adventures_in Good
Katina, Tnc. v . Best Places to Eat, Inc., 131 F.2d 809, 815 
(7th Cir. 1942).

See also 9 V.'right & Miller, Federal Practice and Procedure 
§ 2603 (1971). ---------------------------------

] -— 2



This is not to say that no reference can ever contribute
to speedy adjudication. Quite clearly, adroit reference of
discrete tasks to a master can assist the judge in processing
a case. The guiding principle has always been that: "The use
of masters is 'to eiid judges in the performance of specific
judicial duties, as they may eirisc in the progress of a cause'
Ex p arte Peterson, 253 U.S. 300, 312 ... (1920), and not to
displace the court." I.a Buy v. Howes Leather Co. , supra, 352
"U.S. at 256 (emphasis added). In contrast, the reference order
of March 24, 1975 referring essentially the entire case for

J_C/
trial is completely open-ended.

Section 706(f)(5) is inapplicable on another ground as well. 
The reference was made after the district court had begun to 
hear and determine the case and had already tried the defense 
of laches; it did not occur in the period of a judge not having, 
scheduled the case for trial within 120 days after joinder of 
issue. it is during this specific period that the services of 
a master are most needed to resolve discovery disputes and 
otherwise assist the district court to complete trial preparci- 
tions so that a trial can shortly be scheduled. To read § 706 
(f)(5) to require that a reference may be made at any time is 
contrary to the plain and reasonable meaning of this statutory 
requirement and would impart an unlikely meaning as well.

IF E.g., specific assignment to resolve 
discovery; specific assignment to make a 
tion of the admissibility of evidence; s 
handle matters of account and of difficu

disputes concerning 
preliminary determina- 

pecific assignment to 
It computation of damages.

16/ See Exhibit " 8 ", p. 7, para. N, and p. 7 , para. 1.

r

22



Reference would depend on a wholly fortuitous circumstance, i.c.,
whether the trial was scheduled before or after 120 days after

17/joinder of issue. Congress cannot be presumed to have chosen 
such an artificial ernd unreasonable meaning.

/vvoidance of unconstitutional itv
Even if § 706 (f) (5) could be read to permit, the instant 

reference, this court would have to consider the constitutionality 
of that, provision. Reference that "amounts to little less than 
an abdication of the judicial function" clearly raises questions 
of invalidity under Art. Ill and the due process clause of the 
Fifth Amendment. Such questions have always lurked behind 
decisions such as La Buy, supra, and In re Watkins, supra. in
Flowers v._Crouch-Walker Coro., supra, the Seventh Circuit alluded
to them even while stating that they need not be reached.

Inasmuch as the rule adopted by the Northern 
District of Illinois flouts the statute, we find 
it unnecessary to consider the broader questions: 
whether the principle of the ha Buy case inter­
preting Rule 53 of the Federal Rules of Civil 
Procedure, or the radiations of Article h i  of 
the United States Constitution, or the restraints 
of the due process clause of the Fifth Amendment 
to the United States Constitution would also 
condemn the local rule. 8 EPD at p.6511.

Therefore, avoidance of unconstitutionality, a traditional canon 
of statutory construction, disfavors the expansive interpreta­
tion of § 706(f) (5) reference that the district coxirt relied

any time, then two arbitrary 
those for which trial had not 
joinder of issue which could 

be referred at any time; and (2) those for which trial had been 
scheduled within 120 days of joinder of issue which could not 
be referred under § 706(f)(5).

•— -'If a reference can be made at 
classes of cases would exist: (1) 
been scheduled within 120 days of

23



I I .

18/on.

THE DISTRICT 
THE TRIAL OF 
TO A SPECIAL

COURT HAD NO POWER TO DELEGATE 
ALL REMAINING ISSUES OF LIABILITY 
MASTER PURSUANT TO RULE 53 (b) .

The district court's March 24, 1975 reference order states 
that the reference is "permitted ... under the rule," i.e., Rule 
53, Fed. R. Civ. Pro. However, the order fails to make a Rule 
-53(b) "showing" that some "exceptional circumstance" requires 
reference, other than "the court notes for the record that this 
case has been pending since April 13, 1973, and that the under­
signed is presently serving as the only judge in a two-judge 

19/
district." This reason, construed cither as calendar congestion 
or unavailability of a judge, is generally not a cognizable 
exceptional circumstance under Rule 53 (b) and specifically not 
in a Title VII case.

~J—' Avoidance of unconstitutionality has figured prominently in 
judicial interpretation of the Federal Magistrates Act, 28 U.S.C.
§ 031 et seq. See, e .g ., 20 U.S.C. § 636(b) (scope of assignment 
to magistrates expressly limited to only "such additional duties 
as are not inconsistent with the Constitution and laws of the 
United States), and V.’i ngo v. Wedding, 41 L.Ed.2d 879 (1974), 
affirming 403 F.2d 1131 (6th Cir. 1973) (heldu Act did not change 
the requirement of the Habeas Corpus Act that federal judges 
personally conduct habeas corpus evidentiary hearings). See 
also TPO, Inc, v. MeMil Ion, 460 F.2d 348, 352-54 (7th Cir. 1972).

In construing a similar proviso in $ 706(f)(5) of Title VII, 
the experience of other circuits disapproving similar references 
pursuant to § 636(b)(1) of the Federal Magistrates Act and Rule 
53(b) in order to avoid unconstitutionality in such cases as 
Ingram v. Richardson, 471 F.2d 1263, 1270-71 (6th Cir. 1972) and 
TPO, Inc, v . McMi11 on, supra, is entitled to great weight.
 ̂V  It should be noted that the district court original ly set aside 
the entire month of March and additional time into April, if 
required, for the trial of this lawsuit even though Respondent 
was then the only judge in the district, supra . That the case has 
been pending since April 13, 1973 by itself docs not necessarily

*



Rule 53 (b) and Calendar Conrrestion
Rule 53 (b) clearly states "A reference to a master shall 

bo the exception and not the rule." in La Buy v . Howes Leather 
Co., supra, the Supreme Court has definitively established that 
calendar congestion per so is not an "exceptional circumstance" 
justifying the reference of practically an entire trial. More­
over, in La_Buy, the district court had tried to show that 
calendar congestion in combination with the prospect of a lengthy 
trial and the complexity of issues posed an exceptional circum­
stance for reference of an antitrust trial.

But, be that iis it may, congestion in itself 
is not such an exceptional circumstance as to 
warrant a reference to a master. if such were 
the test, present congestion would make refer­
ences the rule 'rather than the exception.
Petitioner realises this, for in addition to gedti< casescalendar congestion he alleges that the 
referred had unusual complexity of issues of 
both fact and law. But most litigation in the 
antitrust field is complex. it docs; not follow 
that antitrust litigants are not entitled to a 
trial before a court. On the contrary, we believe 
that this is an impelling reason' for trial before 
a regular, experienced trial judge rather than 
before a temporary substitute appointed on an 
ad hoc basis and ordinarily not experienced in 
judicial work. Nor does petitioner's claim of 
the great length of time those trials will require 
offer exceptional grounds. The final ground 
asserted by petitioner was with reference to the 
voluminous accounting which would be necessary in 
the event the plaintiffs prevailed. We agree 
that the detailed accounting required in order to 
determine the damages suffered by each plaintiff 
might be referred to a master after the court has 
determined the over-all liability of defendants, 
provided the circumstances indicate that the use 
of the court's, time is not warranted in receiving 
proof and making the tabulation. 352 U.S. at 259.

19 / (cont' d ) 
indicate that 
Respondent has 
ceedings over 
with the case

reference is desirable or not. However, because the 
been in exclusive control of all pre-trial pro- 

this period, no Master could hope to bo as familiar as Respondent.



Calendar congestion has, of course, grown worse since La Buy
2 0 /but there has been no change in Rule 53(b) law. This inter­

pretation of Rule 53 (b) comports with the duty of courts to 
construe the statute in order to avoid unconstitutionality for 
violation of Article III and the due process clause of the Fifth 
Amendment, supra.

A district court's claim of "exceptional circumstance" 
requires a close assessment of the record by a Court of /appeals. 
The rule of this Circuit is that the claim must be tested issue 
by issue so that reference of an entire case for trial including 
"issues of a kind traditionally for judge or jury as fact finder" 
is necessarily rare. In re Watkins, supra, 271 F.2d 774-75.
In the instant case, the district court failed to specify which, 
if any, of the issues posed problems of calendar congestion 
sufficient to offset the necessity for adjudication by an Article 
III court. Such a specification serves a prophylactic purpose; 
otherwise this or any district court could "turn the tables on 
the rule and make trial by reference the visual, and trial by 
court or jury the exceptional." In re V.1 atkins, supra, 271 F.2d

-lO-X In Tnqram v . Ri chnrdson, supra, for example, concerning a 
local rule of court automatically assigning social security dis­
ability insurance case to a magistrate, the Seventh Circuit 
recently stated:

Crowded court calendars may be a problem in the 
United States District Court for the Eastern Dis­
trict of Kentucky. Reference of cases to Magis­
trates, however,, is not the proper solution of the 
problem. The proper solution of a crowded docket 
rests with the Congress. District Courts, of course, 
can do much and, ns pointed out in I,a Buy, have done 
much, to relieve crowded dockets by sound judicial 
administration and enlightened procedural techniques 
(352 U.S. at 259, 77 S.Ct. 309); but the problem of 
a crowded docket must not bo allowed to close the

25



at 774.

JS 706 (f)(4) of Title VTI and Unavailability of n judge
It is somewhat anomalous that the district court seeks to 

justify the reference of a Title VII case to a master pursuant 
to Rule 53(b) by citing the fact that he is the only judge in 
the district. if it is meant that no judge is available to hear 
the case. Title VII provides in § 706(f)(4) a specific procedure 
for resolving the problem by certification of unavailability 
by the chief judge of the district to the chief judge of the 
circuit who "shall then designate a district or circuit judge 
of the circuit to hear and determine the case." Thus, Congress 
has expressly provided a way for district courts to relieve 
problems of congestion resulting from Title VII litigation.
Here, the district court conducted two years of pre-trial pro­
ceedings and litigation, and tried defendant's case for a full 
week, without seeking to invoke outside assistance.. Only after 
dismissing EEOC and severely limiting plaintiffs.' monetary 
claims c:id the district court seek the assistance of a non— 
Article III judge. it was an abuse of discretion for the district 
court to resort instead to "self help" in violation of both 
Title VII and Rule 53(b).

(cont'd)
door to a litigant who lias a statutory right of 
review by a court. 471 F.2d at 1271.”

See also Flowers v. Crouch-Walker Corn. supra, 8 EPD at p.6511.

27



CONCLUSION

Reference by the district court to a special master for 
the trial of this Title VII action has no basis in lav/ or 
public policy. In no way would expeditious adjudication be 
promoted and no other proper purpose is served. The instant 
broad reference- order is in no v/ay comparable to and finds no 
support in the specific reference of back pay calculation in 
Title VII cases, see, e . q. , Pettway v, American Cast Iron Pine
Co., 494 F.2d 211, 250 (5th Car. 1974), which is valid under 
both § 706(f)(5) of Title VII and Rule 53(b). Because the 
district court lias clearly abused its discretion, a writ of 
mandamus to require a judicial trial should issue.

Respectful ly submitted,

JACK GREENBERG 
JAMES H. NABRIT, III 
CHARLES STEPHEN RALSTON 
ELAINE R. JONES 
MORRIS J. BALLER 
BILL LANN LEE

10 Columbus Circle 
Suite 2030
Now York, New York 10019

P. KENT SPRIGGS
324 West College Street 
Tallahassee, Florida

Attorneys for Petitioners

28