Scott v Young Brief for the Plaintiff Appellee

    No. 13,814

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

A da M, Scott, etc.,
Plain tiff-Appellee,

United States of A merica,
Plaintiff-Intervenor-Appellee,

v.

J oseph S. Y oung d /b /a  T imberlake,
Defendan t-Appellan t.

On Appeal from the United States District Court 
for the Eastern District o f Virginia

BRIEF FOR THE PLAINTIFF-APPELLEE

Allison W. Brown, Jr .
Suite 501, 1424-16th Street, N.W. 
Washington, D.C. 20036

Robert M. Alexander 
2011 S. Glebe Road 
Arlington, Virginia 22204

Attorneys for Plaintiff-Appellee

Washington. O C. T H IEL PRESS • 202 393-0625



INDEX

P A G E

STATEMENT OF THE ISSUES .................................................  1
STATEMENT OF THE CASE ......................................................  2

A. Procedural history ................................................................  2
B. Timberlake— its characteristics and manner of opera­

tion ........................................................................................  4
ARGUMENT ...................................................................................  5

I. The racial discrimination practiced by Timberlake is 
prohibited by Title II of the Civil Rights Act of 1964 
(42 U.S.C. Sec. 2000a)   5

II. The racial discrimination practiced by Timberlake is 
prohibited by the Civil Rights Act of 1866 (42 U.S.C.
Sec. 1981)............................................................................... 8

CONCLUSION ............................................................................... 9

AUTHORITIES CITED

CASES:
Bush v. Kaim, 297 F.Supp. 151 (N.D. Ohio) .............................. 9
Contract Buyers League v. F& F Investment, 300 F. Supp.

210 (N.D. I ll) ............................................................................... 9
Daniel v. Paul, 395 U.S. 298 .................................................  6, 7, 9
Dobbins v. Local 212, International Brotherhood of Electri­

cal Workers, 292 F. Supp. 413 (S.D. O hio).............................. 9
Griffin v. State Board of Education, 296 F. Supp. 1178 (E.D.

Va.) .............................................................................................  5
Jones v. Mayer Co., 392 U.S. 409 ............................................  8, 9
Marrone v. Washington Jockey Club, 227 U.S. 633 .................... 9
Miller v. Amusement Enterprises, Inc., 394 F.2d 342 (C.A.

5 ) ...............................................................................................  6, 9
Sullivan v. Little Hunting Park, Inc., 392 U.S. 657, cert.

granted, 394 U.S. 942 ................................................................  9
System Federation No. 91 v. Wright, 364 U.S. 642 ............ .. 5

(i)



(a)

United States v. Medical Society of South Carolina, 298 F.
Supp. 145 (D .S.C .)..................................................................... 9

United States v. Swift & Co., 286 U.S. 106 .............................. 5
Valle v. Stengel, 176 F.2d 697 (C.A. 3) ........................................ 9
W.M.V. Co. v. Black, 113 Va. 728, 75 S.E. 82 ......................... 9

STATUTES:

42 U.S.C. Sec. 2000a .............................................................  2, 3, 5
42 U.S.C. Sec. 1981 ......................................................  2, 3, 4, 8, 9
42 U.S.C. Sec. 1982 ..................................................................  2-3



UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13,814

A da M. Scott, etc.,
Plain tiff-A ppellee,

United States of A merica,
Plain tiff-In tervenor-A ppellee,

v.

J oseph S. Young d /'b /a T imberlake,
Defendan t-Appellan t.

On Appeal from the United States District Court 
for the Eastern District o f  Virginia

BRIEF FOR THE PLAINTIFF-APPELLEE

STATEMENT OF THE ISSUES
1. Whether the racial discrimination practiced by Timber- 

lake is prohibited by Title II of the Civil Rights Act of 1964 
(42 U.S.C. Sec. 2000a).

2. Whether the racial discrimination practiced by Timber- 
lake is prohibited by the Civil Rights Act of 1866 (42 U.S.C. 
Sec. 1981).



2

STATEMENT OF THE CASE
This case is before the Court on appeal from a decision 

of the district court rendered July 10, 1969. The district 
court’s opinion, which is unreported, is reprinted in the 
appendix to petitioner’s brief, pp. 3-7. The district court’s 
order was entered on July 25, 1969, and appears in the 
appendix to petitioner’s brief, pp. 8-9.

A. Procedural history
Plaintiff originally filed the complaint herein on October 

6, 1965, on behalf of herself, her daughter, Jacquelynne A. 
Scott, an infant, and others similarly situated. The plaintiff, 
who is a Negro, sought an injunction from the court below 
prohibiting defendant from following a policy and practice 
of racial discrimination in connection with an outdoor 
recreational facility known as “Timberlake” , which he owns 
and operates in Fairfax County, Virginia. The plaintiff’s 
claim to relief was based on the provisions of the Civil 
Rights Act of 1964 forbidding discrimination in places of 
public accommodation. 42 U.S.C. Sec. 2000a. On Decem­
ber 5, 1966, a consent decree was entered by the district 
court enjoining defendant from excluding Negroes from the 
premises of Timberlake or from otherwise discriminating 
against persons on the basis of race, color, religion or 
national origin. The judgment was premised on the inclus- 
sion within the Timberlake establishment of an eating 
facility which served Timberlake patrons. Defendant sub­
sequently closed the eating facility and continued operat­
ing Timberlake on a racially discriminatory basis.

In August and September 1968, following judicial deci­
sions announcing significant developments in the interpre­
tation of federal laws concerning discrimination by estab­
lishments such as Timberlake, plaintiff and plaintiff-inter- 
venor moved in the district court for further relief on the 
basis of provisions of the Civil Rights Act of 1964 (42 
U.S.C. Sec. 2000a), and of the Civil Rights Act of 1866



3

(42 U.S.C. Secs. 1981 and 1982). Defendant opposed the 
granting of further relief, but the district court ruled in 
plaintiff’s favor. The court held that Timberlake is a place 
of entertainment within the meaning of Section 201(b)(3) 
of the Civil Rights Act of 1964 and is thereby subject to 
the proscription of that Act against discrimination on the 
ground of race, color, religion or national origin in places of 
public accommodation.1 The district court also held that 
the racial discrimination practiced by Timberlake violates 
the provision of the 1866 Act retained in 42 U.S.C. Sec. 
1981.2 The District Judge (Lewis J.) refused to stay the 
effectiveness of its order pending an appeal. On August 8,

'The relevant provisions of Title II of the Civil Rights Act of 1964 
(42 U.S.C. 2000a) are as follows:

Sec. 201(a) (42 U.S.C. 2000a(a)). All persons shall be 
entitled to the full and equal enjoyment of goods, services, 
facilities, privileges, advantages, and accommodations of any 
place of public accommodation, as defined in this section, 
without discrimination or segregation on the ground of race, 
color, religion, or national origin.

Sec. 201(b) (42 U.S.C. 2000a(b)). Each of the following 
establishments which serves the public is a place of public 
accommodation within the meaning of this title if its opera­
tions affect commerce * * * *:

*  *  *

(3) any motion picture house, theater, concert hall, 
sports arena, stadium or other place of exhibition or en­
tertainment; * * *

*  *  *

Sec. 201(c) (42 U.S.C. 2000a(c)). The operations of an 
establishment affect commerce within the meaning of this 
title if * * *

(3) in the case of an establishment described in paragraph 
(3) of subsection (b), it customarily presents films, per­
formances, athletic teams, exhibitions, or other sources 
of entertainment which move in commerce; * * *. For 
purposes of this section, “commerce” means travel, trade, 
traffic, commerce, transportation, or communication 
among the several States, or between the District of Colum­
bia and any State * * *.

2The relevant provision of the Civil Rights Act of 1866 as incor­
porated in 42 U.S.C. Sec. 1981 is as follows:



4

1969, Judge Butzner of this Court likewise denied defend­
ant’s application for a stay of the district court’s order.

B. Timberlake—its characteristics 
and manner o f  operation* 3

Timberlake is a privately owned parcel of land located 
near Oakton, Fairfax County, Virginia, approximately 15 
miles from the District of Columbia and the State of Mary­
land. The establishment covers about 23 acres and includes 
two lakes with facilities for swimming, diving, canoeing, 
fishing, sunbathing and picnicking. It is open to the general 
public from mid-May through mid-September. It attracts 
about 65,000 persons per season and grosses about $50,000.

There are several floats or rafts located in the lakes, some 
of which have diving boards. Canoes may be rented by the 
hour. Inner tubes may be rented by the day. Patrons also 
engage in scuba and snorkel diving. The sandy beaches 
are used for sunbathing, and provide a vantage point for 
watching others engaged in aquatic and other recreational 
activities. Umbrellas are available for rent on a daily basis. 
There are numerous picnic tables located at various places 
around the lakes, which are rented to patrons. Patrons 
bring their own food and beverage, as none is sold on the 
premises.

Admission fees to Timberlake are $1.25 for adults and 
50^ for children. Ninety percent of the gross receipts come 
from admissions—the rest from equipment rentals.

Most of the patrons reach Timberlake by automobile. 
Although most come from Virginia, many come from Mary-

Sec. 1981. All persons within the jurisdiction of the 
United States shall have the same right in every State and 
Territory to make and enforce contracts * * * as is enjoyed 
by white citizens * * *.

3The facts set out herein are based on the district court’s findings 
as derived from defendant’s answers filed July 8, 1966, to plaintiffs 
interrogatories; defendant’s answers filed December 2, 1968, to the 
intervenor’s interrogatories; as well as from exhibits introduced and 
made part of the record.



5

iand, the District of Columbia and other states. Road signs 
are located in Virginia near interstate routes indicating the 
direction to Timberlake. Defendant has advertised Timber- 
lake in the Washington Evening Star on several occasions. 
This newspaper uses the United States mail facilities and is 
circulated generally in the Washington metropolitan area. 
Timberlake’s canoes and umbrellas were purchased from 
merchants in the District of Columbia.

Timberlake is and has been operated on a racially segre­
gated basis, at least since mid-1964. Admission is secured 
through the admission booth upon paying the requisite fee. 
White members of the general public are routinely admitted. 
Negroes and other non-white persons are refused admission.

ARGUMENT4 * &
I .

The Racial Discrimination Practiced by Timber- 
lake Is Prohibited by Title II of the Civil Rights 
Act of 1964 (42 U.S.C. Sec. 2000a)

The district court plainly was right in holding Timberlake 
to be a place of entertainment within the meaning of Sec. 
201(b)(3) of the Civil Rights Act of 1964 and thereby sub­
ject to the proscription of that Act against discrimination 
on the ground of race or color. In reaching its conclusion,

4In its brief to this Court, defendant does not raise as an issue
one of its principal contentions before the district court, namely, 
that the change in law that occurred subsequent to entry of the con­
sent decree did not constitute a reason under Rule 60(b)(6) of the 
Federal Rules of Civil Procedure for granting further relief, and that 
in any event further relief should not be granted here since the 
court’s judgment was based on consent. Although not in issue on 
this appeal, it should be noted that the district court’s rejection of 
defendant’s contention was entirely correct. As the court held, under 
the consent judgment it expressly retained jurisdiction (Pet. App. 2). 
Even if it had not done so however, Rule 60(b)(6) empowered the 
district court to grant the additional relief upon the showing of 
changed law occasioned by judicial decision. System Federation No. 
91 v. Wright, 364 U.S. 642, 646-651; Griffin v. State Board o f  Edu­
cation, 296 F.Supp. 1178, 1182 (E.D. Va.); United States v. Swift
& Co., 286 U.S. 106, 114-115.



6

the court also correctly found, in accordance with settled 
authority, that the operations of Timberlake “affect com­
merce” as that phrase is defined in Sec. 201(c)(3) of the 
1964 Act, i.e., “it customarily presents films, performances, 
athletic teams, exhibitions, or other sources of entertain­
ment which move in commerce.”

The district court’s interpretation of these sections fol­
lows the precedent set by the recent decision in Miller v. 
Amusement Enterprises, Inc., 394 F.2d 342 (C.A. 5) and 
Daniel v. Paul, 395 U.S. 298. In Miller, the Fifth Circuit, 
sitting en banc, held that a place of entertainment within 
the meaning of Section 201(b)(3) includes “both establish­
ments which present shows, performances and exhibitions 
to a passive audience and those establishments which provide 
recreational or other activities for the amusement or enjoy­
ment of its patrons.” 394 F.2d at 350. The Court also 
concluded that “sources of entertainment” within Sec. 201 
(c)(3) include the equipment and apparatus used by the 
patrons of such an establishment, as well as the patrons 
themselves who provide entertainment for those who watch 
others enjoy the park’s facilities. Id. at 349, 351. The court 
further held that the use of the term “move in commerce” 
in Sec. 201(c)(3) was not intended to exclude sources of 
entertainment, such as equipment, which had moved in inter­
state commerce but which had come to rest on the prem­
ises of the entertainment establishment. Id. at 351-352.

In Daniel v. Paul, the Supreme Court specifically approved 
the holding in Miller. After reviewing the legislative history 
of these provisions, the Court held (395 U.S. at 307-308):

In light of overriding purpose of Title II “to 
remove the daily affront and humiliation involved 
in discriminatory denials of access to facilities osten­
sibly open to the general public,” H.R. Rep. No. 
914, 88th Cong., 1st Sess., 18, we agree with the 
en banc decision of the Court of Appeals for the 
Fifth Circuit in Miller v. Amusement Enterprises,
Inc., 394 F.2d 342 (1968), that the statutory lan­
guage “place of entertainment” should be given full



7

effect according to its generally accepted meaning 
and applied to recreational areas.

The Supreme Court further held (id. at 308):
The legislative history indicates that mechanical 
sources of entertainment such as these [paddle boats, 
juke box and records] were considered by Congress 
to be “sources of entertainment” within the mean­
ing of Sec. 201(c)(3).

There can be no question but that the Court’s holding 
in Daniel is controlling here. Except for the factor of size— 
the Lake Nixon facilities at issue in Daniel are larger than 
those of Timberlake—the two cases are virtually identical.
In both instances the establishments provide water-centered 
recreation for the public generally, but exclude Negroes. 
Swimming, boating and picnicking are the principal activi­
ties which attract customers. Because of Lake Nixon’s 
advertising aimed at interstate travellers and its accessibil­
ity to such persons, the Supreme Court assumed that Lake 
Nixon served out-of-state persons. Here the record shows 
that Timberlake advertises in a newspaper having interstate 
circulation, that it is close to interstate highways and that 
a substantial number of its patrons cross state lines to use 
its facilities. Finally, some of Lake Nixon’s mechanical-type 
equipment, including boats used on the lake, originated in 
interstate commerce. Similarly here, some of Timberlake’s 
equipment, namely, the boats and umbrellas were purchased 
in the District of Columbia.

In sum, we submit that in light of the Daniel case, it can­
not be doubted that the district court was correct in hold­
ing that Timberlake is a place of entertainment, that its 
sources of entertainment have moved in commerce, and that 
accordingly, it falls within the ambit of Title II of the Civil 
Rights Act of 1964.5

sThere is no merit to defendant’s suggestion (br. pp. 3-4) that 
Timberlake could remove itself from coverage of the 1964 Act by 
eliminating newspaper advertising, as well as its canoes and umbrel­
las. Coverage would still derive from the patronage of interstate



8

The Racial Discrimination Practiced by Timber- 
lake Is Prohibited by the Civil Rights Act of 
1866 (42 U.S.C. Sec. 1981)

On the basis of the Supreme Court’s recent decision in 
Jones v. Mayer Co., 392 U.S. 409, it is clear, as the district 
court held, that Timberlake’s discriminatory racial policy is 
barred by the provisions of the Civil Rights Act of 1866 
presently contained in 42 U.S.C. Sec. 1981. Although the 
Court in Jones dealt principally with Sec. 1982 of 42 U.S.C., 
since both Sec. 1981 and Sec. 1982 derive from a single 
clause of Sec. 1 of the 1866 Act (14 Stat. 27), it is evi­
dent that they must be given comparable scope. Thus, like 
the right to “purchase [and] lease . . . real and personal 
property” the right to “make and enforce contracts” with­
out discrimination on the basis of race is not merely an 
assurance against hostile state action but is a guarantee 
against “interference from any source whatever, whether 
governmental or private.” Jones v. Mayer Co., supra, 392 
U.S. at 423-424. Here, also Congress meant exactly what 
it said-that it intended “to prohibit all racially motivated 
deprivations of the rights enumerated in the statute . . .” 
Id. at 426, 436 (emphasis in original). And it equally fol­
lows that “ the statute thus construed, is a valid exercise of 
the power of Congress to enforce the Thirteenth Amend­
ment.” Id. at 413. On its face, therefore, Sec. 1981 pro­
hibits all private racially motivated conduct which denies 
or interferes with a Negro’s right to make and enforce a 
contract.

It cannot be gainsaid that admission to Timberlake is 
dependent on a contractual relationship. Under common 
law principles a ticket to a place of entertainment or recrea-

II.

travellers who by their presence, provide enjoyment for their fellow 
customers. The district court (Pet. app. p. 4) took particular note 
of the opportunities provided at Timberlake for “girl-watching”—a 
notably entertaining activity.



9

tion is regarded as a contract. Valle v. Stengel, 176 F.2d 
697, 702, 703 (C.A. 3); Marrone v. Washington Jockey 
Club, 227 U.S. 633, 636; W.M.V.Co. v. Black, 113 Va. 728, 
75 S.E. 82. Here the record shows that white members of 
the general public are allowed to make contracts giving 
them the right of admission to Timberlake’s facilities, but 
non-whites are denied that right. Plainly, as the district 
court held, the discrimination thus practiced by Timberlake 
is violative of Sec. 1981. See Sullivan v. Little Hunting 
Park, 392 U.S. 657, certiorari granted, 394 U.S. 942; Dob­
bins v. Local 212, International Brotherhood o f Electrical 
Workers, 292 F.Supp. 413, 442 (S.D. Ohio); United States 
v. Medical Society o f  South Carolina, 298 F.Supp. 145, 
152 (D.S.C.) Bush v. Kaim, 291 F.Supp. 151, 159-164 
(N.D. Ohio); Contract Buyers League v. F  & F Investment, 
300 F.Supp. 210, 214-216 (N.D. 111.).

CONCLUSION
Although plaintiff-appellee, in this brief, has dealt in some 

detail with the issues which seem to be presented by defend­
ant’s appeal, it is questionable whether defendant’s appeal, 
as presented to this Court, should be so dignified. For in 
actuality, the appeal borders on the frivolous. Although 
defendant tries to argue issues on the merits, the vacuity 
of his position is revealed by the suggestion to the Court 
(br. p. 13) that it be guided by the minority opinions in 
the, Miller, Daniel and Jones cases, rather than the majority 
opinions. Such a contention, we submit, warrants quick 
dismissal.



10

On the basis of the foregoing, the decision of the district 
court should be affirmed.

Respectfully submitted,

ALLISON W. BROWN, JR.

Suite 501, 1424-16th Street 
Washington, D.C. 20036

ROBERT M. ALEXANDER

2011 S. Glebe Road 
Arlington, Virginia 22204

Attorneys for Plaintiff-Appellee

October 1969.