English v. Lawrence Brief in Opposition to Petition for Writ of Certiorari to the US Court of Appeals for the Fifth Circuit

    IN THE

(tort ni tfyej Ittttefc States
October T erm , 1974

No. 74-4485

W illiam  E nglish, J r., Petitioner, 
v.

H on. A lexander A . L awrence, Chief Judge, United 
States District Court for the Southern District of 
Georgia; Seaboard Coast L ine R ailroad Com­
pany  ; and B rotherhood of R ailw ay , A irline and 
Steamship Clerics, F reight H andlers, E xpress 
and Station E mployes, Respondents.

BRIEF OF RESPONDENT BROTHERHOOD OF RAILWAY, 
AIRLINE AND STEAMSHIP CLERKS, FREIGHT 
HANDLERS, EXPRESS AND STATION EMPLOYES 

IN OPPOSITION TO PETITION FOR WRIT OF 
CERTIORARI TO THE UNITED STATES COURT 

OF APPEALS FOR THE FIFTH CIRCUIT

Jambs L. H ighsaw 
John O ’B. Clark, Jr.

Highsaw & Mahoney 
Suite 506
1015 Eighteenth Street, N.W. 
Washington, D.C. 20036 

Attorneys for Respondent 
Brotherhood of Railway, 
Airline and Steamship Clerks, 
Freight Handlers, Express

July, 1970 and Station Employes

P ress of  B y r o n  S. A d a m s  P r in t in g , In c ., W a sh in g t o n , D. C.



TABLE OF CONTENTS

Page

Opinion B elow ........................................................................ 1

Question P resented .................   2

Statutory P rovision I nvolved ..........................................  2

Statement .................................................................   2

A rgument :

There Are No Special Circumstances And Impor­
tant Reasons For The Grant Of The Writ In This 
Case .................................................    5

Conclusion .....................       8

INDEX TO CITATIONS
Cases :
Pellieer v. Brotherhood of Railway and Steamship 

Clerks, 118 F.Snpp. 254 (D.C. Fla., 1953), aff’d 
217 F.2d 205 (5th Cir., 1953), cert, den. 349 IT.S.
912 .........................................................................  4

Schlosser v. Commonwealth Edison Co., 250 F.2d 478
(7th Cir., 1958), cert. den. 357 U.S. 906 ................  7

Whitehouse v. Illinois Central Railroad Co., 349 U.S.
366 (1954) ..............................................................  7

Will v. United States, 389 U.S. 90, 95, 96 ....... . 5

Statutes :

All Writs Act (28 U.S.C., Section 1651(a)) ................  2
Civil Rights Act of 1964 (42 U.S.C., Sections 2000e, et 

seq.) ..................................................................... 3, 4, 6
Railway Labor Act (45 U.S.C., Sections 151, et seq.).. 4



IN THE

0uprmr Court of %  Imtrfr ^tatro
October T erm , 1974

No. 74-1485

W illiam  E nglish, J r ., Petitioner,
V .

H on. A lexander A. Lawrence, Chief Judge, United 
States District Court for the Southern District of 
Georgia; Seaboard Coast L ine R ailroad Com­
pany  ; and B rotherhood oe R ailw ay , A irline and 
S teamship Clerks, F reight H andlers, E xpress 
and S tation E mployes, Respondents.

BRIEF OF RESPONDENT BROTHERHOOD OF RAILWAY. 
AIRLINE AND STEAMSHIP CLERKS, FREIGHT 
HANDLERS, EXPRESS AND STATION EMPLOYES 

IN OPPOSITION TO PETITION FOR WRIT OF 
CERTIORARI TO THE UNITED STATES COURT 

OF APPEALS FOR THE FIFTH CIRCUIT

OPINION BELOW
The order and decision of the United States Court 

o f Appeals for the Fifth Circuit was entered on Feb­
ruary 27,1975, and is reproduced at page la  of the A p­
pendix to the petition.



2

QUESTION PRESENTED
In the opinion of respondent Brotherhood of Rail­

way, Airline and Steamship Clerks, Freight Handlers, 
Express and Station Employes (BRAG ), the respon­
dent Seaboard Coast Line Railroad Company (SCL) 
has correctly stated the question presented by the peti­
tion at page 2 of its brief in opposition.

STATUTORY PROVISION INVOLVED

Respondent BRAC agrees with the statement of the 
SCL at page 2 of its brief in opposition that the All 
Writs Act (28 U.S.C., Section 1651(a)), quoted at 
page 3 of the petition, is the only relevant statute in­
volved.

STATEMENT
The brief in opjjosition of the respondent SCL (pages 

2-6) has correctly set forth the factual circumstances 
under which the Court of Appeals denied the petition 
of William English, Jr., to issue a writ of mandamus 
to the District Court and the appendix to such brief 
contains the documents relating to those circumstances.

The complaint in the District Court, insofar as it 
involves BRAC, is directed at two matters. These are 
(1) that BRAC and Local Lodges thereof in Savannah, 
Georgia (Locals Eos. 5 and 1586), maintain racially 
segregated Locals, and (2) that BRAC is a party to 
collective bargaining agreements with the respondent 
SCL containing provisions tending to perpetuate the 
effects of alleged discriminatory acts and practices of 
the carrier. The complaint asks for declaratory and 
injunctive relief, the award of back pay, and the award 
of costs and reasonable attorneys’ fees. The record 
shows that the petitioner and the class of black em­



3

ployees of the SCL which he represents has obtained 
complete relief with respect to these matters.

The record shows that the claim with respect to seg­
regated Local Lodges was mooted before the case came 
to trial on the merits. BRAG, as a part of a program 
to eliminate all Local Lodges containing members of 
a particular race, moved to bring about the consolida­
tion of Locals bios. 5 and 1586. Petitioner opposed the 
consolidation unless certain conditions were attached 
thereto and obtained a restraining order from the Dis­
trict Court against the consolidation pending a hearing 
on the issue of such conditions. Following such a hear­
ing the District Court entered an order providing for 
the consolidation of the two Lodges upon terms and con­
ditions which the Court found to be appropriate.1 
Thereafter, the two Lodges were consolidated as BEAC 
Local No. 324, which has been and presently functions 
as a single integrated Lodge. Indeed, the testimony of 
petitioner before the District Court showed that at 
such time he held a position on the Grievance Commit­
tee of the consolidated Lodge.2

The seniority provisions of the agreement between 
BEAC and the carrier, about which petitioner com­
plains, were the classification of jobs into groupings 
designated as Group I  and Group II. It was the claim 
of petitioner that these groupings hindered the promo­
tion of black employees. These seniority provisions 
were not unique to the SCL but at the time of the effec­
tive date of Title V II  of the Civil Eights Act of 1964

1 Page 30a of Appendix to brief in opposition of respondent 
SCL.

2 The statement at page 4 of the petition implying that the 
Lodges were consolidated only on the order of the District Court 
is incorrect.



4

had been in existence in the railroad industry for al­
most 50 years. The record shows that the classification 
of jobs in the craft or class of railroad employees rep­
resented by BRAG into such groupings was estab­
lished by the Federal government through directives 
of the United States Director General of Railroads dur­
ing United States operation of the railroads in World 
W ar I. At the time that Title Y II  became effective, 
BRAG was a party to approximately 350 agreements 
in the railroad industry in which jobs were so grouped 
and classified. BRAG had a policy long prior to the 
enactment of Title Y II  of seeking to eliminate provi­
sions from collective bargaining agreements that might 
be racially discriminatory. Indeed, this policy resulted 
in BRAG being one of the few, if  not the only union, to 
be sued by its white members. Pellicer v. Brotherhood 
of Railway and Steamship Clerks, 118 F.Supp. 254 (D. 
C. F la , 1953), aff’d 217 F.2d 205 (5th Cir., 1953), cert, 
den. 349 U.S. 912. It was not until the late 1960’s that 
questions were raised with respect to this job classifica­
tion system.3 BRAG thereafter undertook a program of 
consolidating all job classification groupings in all of its 
railroad agreements. These changes were required to be 
processed under the Railway Labor Act (45 U.S.C., 
Sections 151, et seq.) and these procedures have con­
tinued until all such groupings with minor exceptions 
have been eliminated. In the case of the SCL, the 
process was completed on or about January 13,1973. In 
the trial of this case in the District Court, counsel for

3 The record also shows that the charges of petitioner to the 
Federal Equal Employment Opportunity Commission did not at­
tack the job classification groupings, that such charges were not 
served upon BRAG as Title VII then required, and that BRAC 
was not given any opportunity to participate in conference, con­
ciliation, or persuasion, in direct violation of Title VII.



5

petitioner conceded that the agreement between BRAG 
and SCL consolidating seniority rosters eliminated 
petitioner’s complaint with respect to promotion of 
black employees. The change was not limited to the class 
represented by petitioner in the English case, but its ef­
fect was system-wide with respect to all black employ­
ees of the SCL. By agreement of the parties, the Dis­
trict Court on November 16, 1973, enjoined any revi­
sions of this agreement without Court approval. Thus, 
the second portion of the complaint against BRAC was 
also mooted.

The only other relief which petitioner might obtain 
would be back pay and attorneys’ fees.4

ARGUMENT
There Are No Special Circumstances and Important Reasons 

for the Grant of the Writ in This Case
The burden ordinarily resting upon a petitioner to 

demonstrate that there are special and important rea­
sons for the grant of a writ of certiorari is substantially 
greater in this case because of the extraordinary na­
ture of the mandamus writ, its limited purposes, and 
the sparingly exercised discretion resting in Federal 
Courts to issue such writs. In Will v. United States, 
389 F.S. 90, at pages 95 and 96, this Court, in vacating 
a writ of mandamus issued by a Court of Appeals, em­
phasized that “ it is clear that only exceptional circum­
stances amounting to a judicial ‘usurpation of power’ 
will justify the invocation of this extraordinary rem­
edy.”  This Court further pointed out that “ the party 
seeking mandamus has ‘ the burden of showing that its

4 At the request of petitioner, the case below was bifurcated into 
a hearing on the liability issue and, subsequently, a hearing 
on the compensation issue, if required.



6

right to issuance is ‘ ‘ clear and indisputable”  \”  In an 
effort to meet the heavy burden which rests upon him, 
the petitioner contends that the Court of Appeals in 
denying the application for a writ of mandamus to the 
District Court has so far sanctioned a departure from 
the accepted and usual course of judicial proceedings 
as to call for an exercise of this Court’s power of super­
vision (Pet., 11-15). It is respectfully submitted that 
this contention is wholly without merit.

The petition argues (page 14) that unless this Court 
exercises its power of supervision, petitioner and the 
members of his class will simply be deprived of an ad­
judication of their claims under the Civil Rights Act. 
This assertion represents a gross misstatement of fact. 
The primary emphasis in Title Y II  of the Civil Rights 
Act is on the elimination of discriminatory employment 
practices. The record before the Court of Appeals on 
the petition for a writ of mandamus clearly showed 
that the alleged discriminatory practices set forth in 
the complaint had been eliminated through voluntary 
action of the respondents prior to the submission of the 
liability phase of the case to the District Court, that 
these actions had been approved by the District Court, 
and that any future effort to reinstate the alleged prac­
tices had, with the consent of respondents, been per­
manently enjoined. Thus, BRAC had, more than a year 
prior to the trial of the liability phase of the case, mov­
ed to consolidate the Local Lodges and such effort re­
sulted in the District Court’s order of January 28,1972, 
effectuating the consolidation (SCL Br., 30a-32a), and 
BRAC and SCL by agreement dated January 12,1973, 
eliminated all references to Groups I  and I I  in the col­
lective bargaining agreement and consolidated the sen­
iority rosters for these classifications over the entire



7

SCL system. The District Court approved this agree­
ment and permanently enjoined any employment prac­
tice or course of conduct inconsistent therewith (SCL 
Br., 48a-51a). The consolidation of the seniority rosters 
not only eliminated the basic claim of the petitioner 
and the class he represents, but applied to all black em­
ployees of the SCL represented by BRAC.

The only other relief which the petitioner might ob­
tain following the entry of Bindings of Fact and Con­
clusions of Law, sought by the writ of mandamus, 
would be consideration of claims for back pay and at­
torneys’ fees. The presence of such claims does not 
give rise to a situation calling for the extraordinary 
relief of mandamus. Petitioner’s wage claims are 
entirely for a past period and to the extent that they 
may subsequently be granted by the District Court, the 
passage of time would be covered by interest with res­
pect thereto. It has long been recognized that purely 
monetary claims do not constitute irreparable injury 
calling for the grant of the extraordinary remedies of 
injunction or mandamus. Whitehouse v. Illinois Cen­
tral Railroad Co., 349 U.S. 366 (1954) ; Schlosser v. 
Commonwealth Edison Co., 250 F.2d 478 (7th Cir., 
1958), cert. den. 357 U.S. 906.

The petition also argues (pages 12-13) that this case 
assumes added importance when viewed in the context 
of the alleged refusal of the District Court to decide 
similar employment discrimination cases for extended 
periods of time. The respondent S CL in its brief in op­
position (pages 6-9) has clearly demonstrated the inac­
curate and unfair nature of this attack upon the Dis­
trict Court. BRAC fully concurs in the SCL analysis 
of the petitioner ’s argument and the complete lack of 
merit whatsoever in that argument.



8

CONCLUSION
BRAC respectfully submits that the petition should 

be denied.

Respectfully submitted,

J ames L. I I ighsaw  
J ohn O ’B. Clarke, J r .

H ighsaw  & M ahoney
Suite 506
1015 Eighteenth Street, R.W .
Washington, D.O. 20036 

Attorneys for Respondent 
Brotherhood of Railway, 
Airline and Steamship 
Clerks, Freight Handlers, 
Express and Station Em­
ployes

July, 1975



1 2244-7-75