Franks v. Bowman Transportation Company Supplemental Memorandum in Support of Petition for a Writ of Certiorari

    I n  t h e

B'upnmte Qlmtrt rtf %  Imti'fc Stairs
October Term, 1974

No. 74-728

H arold F ra n k s  a n d  J o h n n ie  L e e ,

v.
Petitioners,

B o w m an  T ra n spo rta tio n  C o m pa n y , I n c ., et al.,
Respondents.

SUPPLEMENTAL MEMORANDUM IN SUPPORT OF 
PETITION FOR A WRIT OF CERTIORARI

J o h n  R . M yer
Crosland, Myer, Rindskopf & Terry 
2415 Nat’l Bank of Georgia Building 
34 Peachtree Street, N. W.
Atlanta, Georgia 30303

J ack  G reenberg  
J a m es  M . N abrit , III 
M orris J .  B arker 
B arry L. G old stein  

10 Columbus Circle 
New York, New York 10019

E l iz a b e t h  R . R in d sk o pf  
265 Church Street 
New Haven, Connecticut 06510

Attorneys for Petitioners



I n  t h e

Supreme (Emtrt of %  United Stairs
October Term, 1974 

No. 74-728

H arold F ra n k s  a n d  J o h n n ie  L e e ,

Petitioners,
v.

B o w m an  T ra n spo rta tio n  C o m pa n y , I n c ., et al.,
Respondents.

SUPPLEMENTAL MEMORANDUM IN SUPPORT OF 
PETITION FOR A WRIT OF CERTIORARI

Petitioners, Harold Franks and Johnnie Lee, respectfully 
submit this Supplemental Memorandum in Support of their 
Petition for a Writ of Certiorari to the United States Court 
of Appeals for the Fifth Circuit, and reply herein to the 
Responses to the Petition.

At the time the petition was filed, two circuits had ruled 
on the issue presented by the petition. Franks v. Bowman 
Transportation Company, 495 F.2d 398 (5th Cir. 1974); 
Waters v. Wisconsin Steel Works of Int’l Harvester Co., 
502 F.2d 1309 (7th Cir. 1974).1 Both Circuits held that 
Section 703(h), 42 U.S.C. §2000e-2(h), precludes a grant 
of retroactive seniority to discriminatorily rejected job 
applicants. On January 25, 1975, the Sixth Circuit adopted 
a squarely contrary view in Meadows v. Ford Motor Co., 
et al.,----- F .2d------ , 9 EPD fl 9907.

1 Plaintiff Waters filed a Petition for a Writ of Certiorari on 
this and other issues on February 24, 1975, No. 74-1064.



2

Meadows was a sex-discrimination case under Title VII, 
which presented facts indistinguishable from those on which 
the petition herein is based. Plaintiff Meadows sued on 
behalf of a class of 31 female job applicants who had been 
rejected pursuant to a hiring standard found unlawful by 
the district court. The trial court granted the plaintiff 
class certain general relief similar to that allowed by the 
district court in Franks, including priority re-application 
rights. However, the district court denied Meadows’ request 
for back pay and retroactive seniority to class members 
who were subsequently hired.

The Sixth Circuit reversed. Perhaps in light of the much- 
publicized prevalence of severe layoffs in the automobile 
industry, the court centered its discussion on the complexity 
of the retroactive-seniority issue in reduction-in-force 
situations.2 Despite these equitable difficulties in applying 
the retroactive-seniority principle to layoffs, the Sixth 
Circuit rejected the argument that the provisions of Title 
VII preclude such relief. 9 EPD 9907 at pp. 6771-2. The 
Sixth Circuit cited to Franks as an example of the Fifth 
Circuit position it rejected, id.

Notwithstanding its serious reservations about applying 
retroactive seniority in a layoff situation, the Sixth Cir­
cuit saw no difficulty in authorizing such seniority for all 
other purposes, id. at p. 6772. To the extent that Peti­
tioners’ claim for seniority involves employment benefits 
rather than layoff rights—and the case as presented by the 
petition does not present any layoff issue—the Sixth Circuit 
would clearly grant petitioners their remedy on the merits, 
as well as agreeing with their position on the threshold 
question presented to this Court.

2 ®ee> tbe language quoted in the Union Respondents’ Response 
at pp. 2-3 thereof.



3

The Third Circuit has spoken twice on the question pre­
sented by the petition, and, we respectfully submit, has 
spoken inconsistently. In Jurinko v. Wiegand Co., 477 
F.2d 1038 (3rd Cir. 1973), vac’d and rem’d on other 
grounds, 414 XJ.S. 970 (1973), the court ordered two un­
lawfully rejected female job applicants rehired with senior­
ity from the date of their unlawful rejection. But in Jersey 
Central Power & Light Co. v. Local Unions 372, 749, e t al.,
- —- F.2d-----, 9 EPD fj 9923 (3rd Cir., January 30, 1975),
the Third Circuit appeared to adopt a different approach. 
Unlike Jurinko ("and Franks), Jersey Central was not a 
Title VII hiring case; rather, Jersey Central was an em­
ployer’s action for declaratory judgment brought in the 
context of an EEOC-approved affirmative action concilia­
tion agreement. The Third Circuit held squarely in Jersey 
Central that § 703(h) of Title VII insulates, as a “bona 
fide seniority system,” a layoff system based on plant 
seniority (date-of-employment) dates, id. at pp. 6860-2.3

Meadows, Jurinko, and Jersey Central demonstrate two 
further reasons for granting certiorari to resolve the 
question presented here. First, the appellate courts are 
deeply divided between and within themselves on the nar­
row issue presented by the petition: whether § 703(h) 
precludes seniority relief to discriminatorily rejected job 
applicants. Second, these cases demonstrate the crucial 
importance to litigants of the problems raised by the ap­
plication of traditional seniority rules in a period of severe 
economic dislocation. Whether the federal courts, under 
Title VII, can even address themselves to those problems 
depends largely upon the disposition of the issue presented 
in the Petition.

3 One member of the panel, Judge Van Dusen, wrote a concurring 
opinion which took strong issue with the Court’s analysis of 
§ 703(h) while concurring with the judgment on other grounds.



4

Neither Respondent, in its Brief, has argued in support 
of the Fifth Circuit’s holding on the question presented 
by the petition. Respondent Bowman concedes that the 
Fifth Circuit “may be incorrect”, while Respondent Union 
expresses “real doubts as to the correctness of the decision 
below” and concedes that certiorari should be granted to 
resolve the differences between the circuits on an important 
question, as set forth above.4 Bowman attempts to shift 
the focus of the petition from the question presented, con­
cerning Section 703(h), to a different question neither de­
cided below nor presented in the petition. That question 
is : whether a district court may in its discretion refuse to 
grant retroactive seniority to unlawfully rejected ap­
plicants 1

That interesting question, cf. Meadows v. Ford Motor 
Co., supra, is irrelevant to the petition. The district court 
did not exercise its discretion in this matter; it believed 
itself powerless to grant the relief requested (A. 54). The 
Court of Appeals affirmed on other grounds, but agreed 
that the relief requested was outside the court’s juris­
diction (A. 30-A. 31). When a court denies relief on the 
basis of an erroneous view of the scope of its jurisdiction, 
the denial cannot be upheld as a proper exercise of its 
discretion.

The Solicitor General, as amicus curiae, takes the position 
that the Fifth Circuit’s construction of Section 703(h) was 
erroneous.



5

Respectfully submitted,

J o h n  R . M yer

Crosland, Myer, Rindskopf & Terry 
2415 Nat’l Bank of Georgia Building 
34 Peachtree Street, N. W.
Atlanta, Georgia 30303

J ack  G reenberg  
J am es M . N abrit , III 
M orris J .  B aller  
B arry L. G o ldstein  

10 Columbus Circle 
New York, New York 10019

E l iz a b e t h  R . R in d sk o pf  
265 Church Street 
New Haven, Connecticut 06510

Attorneys for Petitioners



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