Stubbs v. Middendorf Brief for Appellees

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. 77-2481

MELVIN H . STUBBS, ETC.,
PlaintIff-Appellant 
vs.

J. WILLIAM MIDDENDORF, ET AL,
Defendants-Appellees

On Appeal From the United States District Court 
For the Southern District of Mississippi

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BRIEF FOR APPELLEES
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ROBERT E. HAUBERO United States Attorney 
Southern District of Mississippi 
Room 324, Post Office Building Jackson, Mississippi 39205
JOSEPH E. BROWN, JR.Assistant United States Attorney 
Room 324, Post Office Building 
Jackson, Mississippi 39205



IN THE
UNITED STATES COURT OP APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 77-2481

MELVIN H . STUBBS, ETC.,
Plaintiff-Appellant, 
vs.

J. WILLIAM MIDDENDORF, ET AL,
De fendant-Appe1lee s

On Appeal From The United States District Court 
For The Southern District of Mississippi

STATEMENT REQUIRED BY LOCAL RULE 13(J)(2)

Counsel for appellees believes that oral argument should 
be had for the following reasons:

1. There is a genuine dispute as to whether this Court 
has jurisdiction at this time to review the order denying class 
certification from which appellant appeals or seeks to appeal.

2. The appeal also involves whether the named plaintiff 
is entitled, as a matter of law, to have a class certified "on 
the basis of the uncontradicted evidentiary record."

3. This appeal also involves a balancing of interests 
in interpreting Rule 23, Federal Rules of Civil Procedure, in 
Title VII actions.

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TABLE OF CONTENTS
Page

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

Preliminary Statement..........................  2
Full Statement of the Case.....................  3

ARGUMENT
Summary of Argument............................
POINT ITHIS COURT HAS NO JURISDICTION 
TO HEAR THIS APPEAL..........
POINT II
APPELLANT FAILED TO ESTABLISH 
HIS RIGHT TO MAINTAIN THISACTION AS A CLASS ACTION.......................  15

CONCLUSION......................................... 18
CERTIFICATE OF SERVICE............................  19

-ii-



TABLE OF AUTHORITIES
Pages

Cases

Alabama Labor Council v. State of Alabama,
453 F.2d 922 (C.A. 5 1972)........... ........ 11

Brown v. GSA, 425 U.S. 820 (1976).................  10
Cohen v. Beneficial Industrial Loan Corp.,
— 317 tr;*r..p i  '(194$) . ~  :.........  11,12
Cole v. Tuttle, 540 P.2d 206 (C.A. 5 1976)........  11
East Texas Motor Freight System, Inc, v.

Rodriquez, ^31 U.s T (1977)................  16,18
Eastland v. Tennessee Valley Authority,

as modified, 553 F.2d 364 (C.A. 5 1977)........  6,7
Jopes v. Diamond, 519 F.2d 1090, 1095-1096

(C.A. 5 1975)..................................  12,13,17
Mills v. Levy, 537 F.2d 1331 (C.A. 5 1976)........  17
United States v. Beasley, 558 F.2d 1200
— rcncr-?: 1577)....... . . .............................................  n
United States v. Gurney, 558 F.2d 1202
— urrrrfw rnrTTT^r.............................................  n

Statutes and Rules:
28 U.S.C. 1291....................................  11
28 U.S.C. 1292(a)(1)..............................  9,14
28 U.S.C. 1292(b).................................  7,8,9,11,14,18
42 U.S.C. 1981....................................  2
42 U.S.C. 2000e-5(g)..............................  13

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42 U.S.C. 2000e-l6.T..............................  2,3,13
42 U.S.C. 2000e-l6(c).............................  10
42 U.S.C. 2000e-l6(d).............................  13
Rule 5(a), Federal Rules of Appellate Procedure.... 9 
Rule 23(a)(1), Federal Rules of Civil Procedure.... 6,16 
Rule 23(a)(2), Federal Rules of Civil Procedure.... 16
Rule 23(a)(3), Federal Rules of Civil Procedure.... 16
Rule 23(a)(4), Federal Rules of Civil Procedure.... 16,17
Rule 23(b)(2), Federal Rules of Civil Procedure___ 14,15,17
Rule 23(c), Federal Rules of Civil Procedure......  15
Rule 103(a)(2), Federal Rules of Evidence.........  17

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IN THE
UNITED STATES COURT OP APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 77-2481

MELVIN H . STUBBS, ETC.,
Plaintiff-Appellant

vs.
J. WILLIAM MIDDENDORF, ET AL. ,

Defendants-Appellees

On Appeal From the United States District Court 
For The Southern District of Mississippi

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BRIEF FOR APPELLEES
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Statement of Issues
1. Whether this Court has or should exercise appellate 

Jurisdiction at this time to review the denial of class 
certification sought by the named plaintiff.

2. Whether the District Court erred in ruling that the 
named plaintiff, appellant here, had failed to meet the re­
quirements for maintenance of a class action.



.-STATEMENT OF THE CASE
Preliminary Statement

The named plaintiff, Melvin Stubbs, is a male black 
employee of the Supply Department at the Naval Construction 
Battalion Center (NCBC), Gulfport, Mississippi. Mr. Stubbs 
brought this action in his own behalf and on behalf of all 
past, present, and future black employees of the Supply 
Department, NCBC, all black present, past and future appli­
cants for employment with the Supply Department and all black 
persons who have sought or been denied promotion in the Supply 
Department, as well as all black persons who have been discrimi­
nated against in employment with the Supply Department. Named 
plaintiff alleges that he and the putative class briefly 
described above have been discriminated against in employment 
in the Supply Department, NCBC, because of their race and 
claim a right to relief under the provisions of Title VII of 
the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-l6 
and the Civil Rights Act of 1866, 42 U.S.C. 1981, et seq. 
Plaintiff seeks for himself and for the putative class broad 
spectrum relief including declaratory and injunctive relief, 
back pay, punitive damages, a promotion for named plaintiff, 
costs and attorneys* fees, and the criminal prosecution of 
all defendants and alleged discriminatory agents.

Plaintiff sought and was denied class certification 
and now seeks to have this Court review and reverse the 
denial of certification.

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Full Statement of the Case 
Although plaintiff raises general claims of racial 

discrimination in the employment practices at NCBC, the 
thrust of his individual and specific claim is found in 
paragraph 7 of the complaint (A. n  - 18 R. 8-13).
That specific claim has to do with a merit promotion vacancy 
announcement for the position of Blocker Bracer, WG-08. 
Plaintiff alleges that he is presently employed as a Wood­
worker WG-05. Both positions were and are in the Supply 
Department of NCBC. There were four applicants for the 
promotion: Two blacks, one of whom was the plaintiff, and
two whites. A white man, L. V. Bond, was selected for the 
promotion. Plaintiff alleges that all four applicants were 
verbally rated as qualified and certified for selection, but 
that the two blacks were rated at 70, while the two whites 
were rated at 75. Again, paraphrasing the complaint, Lavon 
J. Donald, the official who would have normally been the 
selecting official for the promotion under scrutiny, was 
replaced or superseded by a pair of supervisors acting Jointly. 
One of these officials, Arthur Platts, was Mr. Donald's 
immediate superior and the other, Frank McDonald was Donald's 
immediate subordinate. Mr. Bond, the successful applicant 
for the promotion is and was Mr. Donald's brother-in-law. 
Plaintiff's complaint makes general allegations of racism, 
nepotism, and favoritism in addition to his own claim of

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racial discrimination, nepotism, and favoritism.
■y

Plaintiff proceeded to grieve his complaint of racial 
discrimination with respect to the selection for the position 
of Blocker Bracer, and after a hearing before a Complaints 
Examiner of the Civil Service Commission, the Secretary of 
the Navy took final agency action on plaintiff's complaint.
By memorandum dated June 9, 1976 (A. 23 , R. 18) the Secretary
of the Navy advised Mr. Stubbs that the agency concurred in 
the conclusions of the Complaints Examiner to the effect that 
although the actions of the Selection Recommending Panel and 
the selecting official were free of any discriminatory taint, 
the actual rating of Mr. Stubbs' application for the desired 
promotion was not. The Complaints Examiner recommended that 
the disputed promotion action be completely restructered with 
rating and selection to be done by officials not involved in 
the process. The Secretary of the Navy concurred in this 
finding and recommendation and directed the commanding officer 
NCBC to initiate the action necessary to effect corrective 
action as recommended by the Complaints Examiner. The memo­
randum informing plaintiff of the decision also Informed him 
of his "right to sue" or to appeal to the Civil Service Com­
mission as provided by M2 U.S.C. 2000e-l6(c). Plaintiff elected 
not to appeal to the Commission and filed this action on July 
lM, 1976.

Shortly after filing this action, plaintiff commenced 
extensive discovery as the docket entries and record will

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show. The discovery- was exhaustive, and as the docket entries 
will indicate the plaintiff indulged the defendants considerably 
on the time in which responses were to be made to the various 
interrogatories, requests for admissions, and requests for 
production. The docket entries also revealed that plaintiff 
filed motions to compel answers to interrogatories and responses 
to requests for production and to certify a class and noticed 
those motions for hearing on March 1977. As of that date, 
March 4, 1977, the defendants had served answers and responses 
to plaintiff's first and second requests for admissions, first, 
second, and third requests for production and plaintiff's first, 
second, third, and fourth sets of interrogatories.

Plaintiff's motion to certify this as a class action 
(A. 29 , R. 820) sought to expand the putative class stated
in the complaint to all past, present, and future black employees 
and applicants of NCBC, rather than the Supply Department only 
as alleged in the complaint. The motion to certify a class 
explained that "recent discovery has shown that there is 
systemic discrimination throughout the NCBC" (A. 29 , R. 820).
Both the motion to compel discovery and the motion to certify 
a class were called up in chambers at Jackson, Mississippi, 
on March 4, 1977.

Because the motions were heard in chambers, no record 
was made of the proceedings, but we feel that the plaintiff 
will agree substantially with our recitation of what there 
occurred.

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The parties first argued and discussed the motion to 
compel discovery. The result of this interchange between 
counsel for the parties and the Court was that the parties 
were to attempt to resolve the discovery issues relating to 
specificity and adequacy of certain answers and that any re­
maining disputes with respect to discovery would be taken 
up by the Court at a later date after a ruling on the question 
of class certification. The Court then took up the question of 
certification. No live testimony was heard on the certification 
question. Plaintiff offered certain statistical compilations 
which were ordered to be filed as a part of plaintiff's motion 
for class certification (A. 3 2 - 37 , R. 844-845). Counsel
for the defendants stated that he had no objection to the 
statistical compilations being offered to demonstrate numerosity 
of the putative class for purposes of Rule 23(a)(1), Federal 
Rules of Civil Procedure, and defense counsel further made 
the representation, accepted by the Court, that the defendants 
were satisfied that counsel for the plaintiff were highly 
qualified and competent to prosecute a Title VII claim as 
a class action. Discussion then turned to the case of 
Eastland v. Tennessee Valley Authority, 553 F.2d 364 (C.A. 5,
1977) as modified on denial of rehearing and rehearing en

1/
banc decided Just four days earlier. Neither the Court nor

1/ The original decision in Eastland issued on February 
28, 19T7, and was published in the advance sheets at 547 F.2d 
908. That decision was withdrawn from the bound volume at the request of the Court and the new decision, dated May 23, 1977, 
modifying the earlier decision is found at 553 F.2d.

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counsel for the defendants had seen the Eastland opinion at 
the hearing on March *1 and the Court directed the parties 
to submit supplemental memoranda within fourteen days (A. _____-
_____, R. 844-845).

On April 25, 1977, an opinion dated April 22, 1977, was 
filed in which the Court concluded that certification as a 
class action would be denied and directed that an order be 
presented implementing that opinion. (A. 3 8 - 39 , R. 874 —
875). On April 28, 1977, an order was entered denying certi­
fication. (A. _40__, R. 876). Plaintiffs then filed a supplemen­
tal motion to compel discovery (A. _____, R. 877), a motion to
clarify the Court's order and opinion on class certification 
(A. 4l , R. 882) and a motion to certify an interlocutory 
appeal pursuant to 28 U.S.C. 1292(b) from the order denying 
class certification (A. 43 , R. 887). All three motions
were noticed for and heard On May 20, 1977, in chambers at 
Jackson. On June 2, 1977, a single order was entered disposing 
of the three motions (A. 6 4 - 65 , R. 890-891). With respect
to plaintiff's request for clarification of the decision to 
deny class certification, the Court found that the named plain­
tiff had exhausted his administrative remedies to the extent 
required by law to bring this action, that the aforesaid 
statistical compilations were properly before the Court on 
consideration of the motion for class certification, but the 
Court declined to clarify further the aforesaid decision to 
deny certification. The Court granted plaintiffs' motion to 
certify a 28 U.S.C. 1292(b) appeal from the order denying

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certification and made the recitations required by that section. 
In addition, the Court defined the scope of discovery that would 
be permitted. Finally, during the hearing of the three afore­
said motions, the plaintiff made an ore tenus motion "to 
supplement the record on the Motion for Class Action Certifi­
cation, to include the administrative record, and answers to 
interrogatories already on file." That motion was denied in 
the same order (A. 66 , R. 892). On June 6, 1977, plaintiff
filed in the District Court a "Notice of Appeal Under Section 
28 U.S.C., Section 1292(b)" giving notice that the plaintiffs 
appealed pursuant to said Section to this Court from the order 
denying class certification, said notice further reciting that 
by order filed June 2, 1977, the Court had "granted Plaintiffs' 
Motion for a 1292(b) Appeal" (A. 67 , R. 893). An appeal
bond was filed the same day. No application was filed with 
this Court within the ten day period allowed by Rule 5(a), 
Federal Rules of Appellate Procedure and 28 U.S.C. 1292(b). 
Plaintiff has attempted to correct his failure to file a 
timely application for an interlocutory appeal in this Court 
by serving on September 3, 1977, motions in this Court for 
leave to file an amended petition and to appeal pursuant to 
28 U.S.C. 1292(b) out of time.

-8-



ARGUMENT
Summary of Argument

In this argument we contend first that this Court has 
no jurisdiction to hear this appeal: (1) as an interlocutory 
appeal under 28 U.S.C. 1292(b) because application therefor 
was not filed in this Court within ten days after entry of the 
certification order as required by 28 U.S.C. 1292(b) and Rule 
5(a), Federal Rules of Appellate Procedure, or (2) as an appeal 
from an order denying an injunction as provided in 28 U.S.C. 
1292(a)(1).

Next, we say that, assuming the order denying class 
certification to be reviewable here, the record does not support 
the relief sought here by the named plaintiff: that this Court 
should order a class certified.

Mention must be made of two additional points before 
proceeding into our argument. Counsel for the defendants- 
appellants urged in the District Court that 5 C.F.R. 713.251 
providing for processing of third party complaints of employ­
ment discrimination provided a vehicle for grieving class 
claims and that grievance of class claims through that vehicle 
was required as a condition precedent to the institution of 
a Title VII class action on behalf of federal employees. We 
have been instructed by our superiors in the Department of 
Justice not to urge this claim, and we now abandon it completely 
and for all purposes in this cause.

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Next, although it does not directly affect the Issues 
raised on this appeal, we are constrained to note that the 
defendants are all sued in their Individual as well as their 
official capacities, for punitive damages as well as back pay, 
attorneys' fees and other relief. A proper and timely objection 
to service of process on each defendant in his individual 
capacity was made in the answer filed on behalf of all defendants. 
Of more importance, however, is the unequivocal ruling of 
Brown v. GSA, 425 U.S. 820 (1976) to the effect that the 
exclusive remedies of the named plaintiff and the putative 
class are provided in Title VII. Brown was decided June 1,
1976, six weeks prior to the filing of this action, and except 
for passing mention of Brown in his brief (brief pp. 6-7), 
named plaintiff apparently proceeds to press his action against 
all defendants. The only proper defendant in this case is 
the Secretary of the Navy in his official capacity as provided 
in 42 U.S.C. 2000e-l6(c), and although we do not believe that 
the plaintiff-appellant contends otherwise, his pleadings 
indicate that he still regards all defendants as still active 
in their individual and official capacities.

POINT I
THIS COURT HAS NO JURISDICTION 
TO HEAR THIS APPEAL

We consider it truly unfortunate that plaintiff-appellant 
did not file an application for interlocutory appeal in this 
Court within ten days after entry of the order containing

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the 28 U.S.C. 1292ftJ) recitations. As counsel for the plain­
tiff states in his Motion for Leave to Pile Amended Petition 
for Permission to Appeal, the defendants consented to the 
Section 1292(b) certification by the District Court. The 
grant of a Section 1292(b) appeal by this Court would have 
obviated the necessity for the jurisdictional argument which 
we must now make.

Lack of Jurisdiction may be raised at any time and may 
be recognized by this Court sua sponte. United States v.
Beasley, 558 F.2d 1200 (C.A. 5, 1977). As much as we might 
wish to permit this matter to proceed as a Section 1292(b) 
appeal, we must urge that the requirement of Appellate Rule 
5(a) and Section 1292(b) that the application or petition for 
appeal be filed in this Court within ten days of entry of the 
order of the District Court containing the necessary recitations 
is sacramental and jurisdictional and cannot be waived.
Alabama Labor Council v. State of Alabama, 453 F.2d 922 (C.A.
5 1973); Cole v. Tuttle. 540 F.2d 206 (C.A. 5 1976).

There can be no jurisdiction to hear this appeal under 
the provisions of 28 U.S.C. 1291 for the order sought to be 
reviewed is not final: plaintiff's individual claim is thus 
far alive and subject to adjudication. The "collateral order" 
doctrine announced by the Supreme Court in Cohen v. Beneficial 
Industrial Loan Corp.. 337 U.S. 541 (1949) and followed by 
this Court last month in United States v. Gurney, 558 F.2d 
1202 (C.A. 5 1977) is not applicable here. The order sought

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to be reviewed here is not "separable from, and collateral to
the rights asserted" in the course of action asserted.

The only possible basis for the present exercise of
appellate Jurisdiction in this case is under the provisions
of 28 U.S.C. 1292(a)(1) permitting an interlocutory appeal
from an order denying an injunction. Appellant would glide
smoothly over the serious Jurisdictional questions involved
here by a bare statement of Jurisdiction and the invocation
in a footnote of Jones v. Diamond, 519 F.2d 1090, 1095-1096
(C.A. 5 1975) (Brief p. 8).

As a point of departure on this point, we must note
that Jones v. Diamond, at 519 F.2d 1095, states the general
principle that an order denying class action is not appealable
as a general rule. This Court then proceeded to recognize
two exceptions. The first of those exceptions was that
established by the collateral order doctrine announced in
Cohen v. Beneficial Industrial Loan Corp., supra. This action
can proceed without class certification: there is no "death
knell" finality involved here.

The second exception to the general rule announced in
Jones v. Diamond was that narrow class of cases in which:

. . . the substantial effect of [the district 
court's] order denying leave to proceed as a 
class is to narrow considerably the scope of 
any possible injunctive relief in the event 
plaintiffs ultimately prevail on the merits 
(id. at 519 F.2d 1095, quoting from Yaffe v.
Powers, 454 F.2d 1362, 1364 (C.A. 1 1972))
This Court then went on to prescribe two requirements

in order for the foregoing exception to be applicable. The

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first is that the prayer for injunction must constitute the 
heart of the relief sought and denial of class certification 
would strip the plaintiff of standing to seek injunctive relief 
and result in serious or irreparable consequences to the 
plaintiff and the putative class. The second requirement is 
that the practical result of denying class certification must 
be to deny the requested broad injunction so as to effectively 
deny plaintiff access to the Courts.

This appeal cannot pass the muster of Jones v. Diamond. 
Plaintiff here obviously does not lose standing to complain 
of any acts of discrimination properly before the Court. He 
claims to have present standing to complain of each alleged 
act or practice of racial discrimination alleged in the complaint 
(A. 13-18 , R. 8-13). To urge that serious or irreparable 
consequences would attend the denial of class certification 
is to engage in speculation. The scope of injunctive relief 
available is not considerably narrowed by denial of certifi­
cation.

First, . although broad injunctive relief is obviously 
sought, it is not obvious that broad injunctive relief would 
be appropriate. 42 U.S.C. 2000e-l6(d) makes the provisions 
of 42 U.S.C. 2000e-5(g) respecting relief (including injunctive 
relief) available to private Title VII employees equally 
available to federal employees. Injunctive relief may well 
be appropriate in Section 2000e-l6 cases, but that relief 
should be narrow and specific. The only proper defendant in 
this case is the Secretary of the Navy in his official capacity

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only. The only relief available to plaintiff or the puta­
tive class is that available under Title VII. If this Court 
should adjudge, for example, that the NCBC Merit Promotion 
Plan contains racially discriminatory provisions as alleged 
by plaintiff (A. 1 6 - 17 , R. 11-12) injunctive relief is
not indicated to eliminate those provisions. It is to be 
presumed that the Secretary of the Navy will do his duty.
The same considerations apply to any other broad injunctive 
relief requested: the Secretary must be presumed to be willing
to do his duty. It must not be overlooked in this case that 
the Secretary, prior to the institution of this action, by 
his memorandum decision of June 9, 1976 (A. 23 , R. 18),
found that the promotion action involved in plaintiff's 
individual, specific claim was, in fact, tainted by a racially 
discriminatory practice. Plaintiff claims that the relief 
awarded by the Secretary is too little and too late (and he 
may be able to establish it on trial), but nonetheless broad 
injunctive relief is probably not indicated, and at any rate 
the prayer for injunctive relief cannot be seriously regarded 
as the heart of the relief sought. Finally, plaintiff claims 
standing to seek all of the relief sought for the putative 
class. Plaintiff seeks to have a Rule 23(b)(2) class certified. 
Final injunctive or declaratory relief would in no way be 
Jeopardized substantially by this Court declining Section 
1292(a)(1) review. We agree with plaintiff that Section 
1292(b) review would have been appropriate had application 
been made timely.



POINT II
APPELLANT FAILED TO ESTABLISH 
HIS RIGHT TO MAINTAIN THIS 
ACTION AS A CLASS ACTION

In treating this point of our argument we take it as 
hornbook law that the merits of the individual or class claims 
are not considered. Also, we are mindful of the liberality 
accorded Rule 23(b)(2) classes in civil rights actions generally 
and particularly in Title VII cases, and of the independent 
obligation of the trial court to determine, pursuant to Rule 
23(c), whether the action is to be maintained as a class action.

The plaintiff-appellant is represented by skilled and 
experienced Title Vil advocates, some of whom have successfully 
prosecuted numerous Title VII class actions in this and other 
courts, as this Court will notice. These attorneys did not 
seek a rehearing of their motion to certify a class in the 
District Court, nor do they seek one here. The sole issue 
perceived by us that they here present on the denial of class 
certification is their contention that plaintiff-appellant 
is entitled to class certification "on the basis of the 
uncontradicted evidentiary record" (Brief p. 21). Plaintiff's 
entire argument on the certification issue is directed toward 
his contention that he has established a right to have the 
putative class certified. That contention is what we shall 
rebut here.

Implicit in plaintiff's argument, and undisputed as 
a matter of law, is the principle that for a Rule 23(b)(2)

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class to be certified, plaintiff must demonstrate all of the 
following elements:

A. Rule 23(a)(1) - Numerosity
B. Rule 23(a)(2) - Common question of law or fact
C. Rule 23 (a)(3) - Typicality of plaintiffs' claims
D. Rule 23(a)(4) - Pair and adequate representation

by representative
E. Rule 23(b)(2) - Defendants' acts or failures to

act on grounds generally applicable 
to class

At the hearing on plaintiff's motion to certify the 
putative class, two stipulations were made: (1) Defense counsel 
stipulated to the admission of statistics establishing the 
numerosity of the putative class required by Rule 23(a)(1), and 
(2) Defense counsel stipulated that plaintiff's attorneys were 
competent to prosecute a Title VII class action, thereby 
partially establishing the fair and adequate representation 
requirements of Rule 23(a)(4). No other evidence whatsoever 
was offered to prove any of the remaining elements required 
for class certification. Notwithstanding the liberality accorded 
the certification of Title VII classes and the fact that common 
questions of law and fact are typical, full compliance with 
the elements of Rule 23 is required. East Texas Motor Freight 
System, Inc, v. Rodriguez, 431 U.S. ____(1977).

Virtually all of the facts which plaintiff claims establish 
his right to class certification are alleged to be contained in 
the administrative record in this action. That administrative 
record is not part of the record on this appeal and was never

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filed or offered in evidence. Plaintiff would dispose of this 
glaring omission from his proof by claiming plain error in 
the alleged refusal of the District Court to cause the record 
to be entered. We have no dispute with the authorities offered 
by plaintiff to establish admissibility (Brief p. 2), but show 
that the administrative record was never offered, or if it was, 
no offer of proof was made. In the absence of an offer of 
proof, error cannot be predicated on the exclusion of the 
record, if in fact it was offered. Rule 103(a)(2), Federal 
Rules of Evidence; Mills v. Levy, 537 F.2d 1331 (C.A. 5 1976).

Similarly, much contained in the defendants' answers to 
plaintiff's interrogatories might have been used in evidence, 
but in the absence of something approaching a formal offer 
they are not evidence in this case. Jones v. Diamond, supra, 
at 519 F .2d 1098 n. 13.

For the foregoing reasons we submit that the plaintiff 
has dismally failed to establish that the putative class should 
be certified.

Without conceding that any of the elements of a Rule 
23(b)(2) class were established except competence of counsel 
and numerosity of the putative class described in the motion, 
we are constrained to comment on the essential element of 
fair and adequate representation of the class required by 
Rule 23(a)(4). Plaintiff failed to offer evidence to support 
certification, failed to seek a rehearing of his motion in 
the District Court and failed to file a timely application for

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a 28 U.S.C. 1292(b);-&ppeal. This, in the light of East Texas 
Motor Freight, supra, suggests inadequate representation.
Also, the complaint indicates actual or potential conflict 
of interests between plaintiff and the putative class.
Specifically, plaintiff is or was a competitor with at least 
one black for the promotion on which plaintiff's individual 
claim is based (A.13-11* , R. 8-9) and in addition, he seeks 
to be appointed to the highest position at NCBC for which he 
is qualified (A.__21_, R. 16), without regard to the relative 
qualifications of qualified blacks who may be candidates for 
the position. Thus, we say that a conflict of interests 
appears in the pleadings which has not been dispelled by any 
competent evidence.

CONCLUSION
For the foregoing reasons we ask that plaintiff's 

appeal be dismissed for lack of jurisdiction. In the 
alternative, if the Court exercises appellate jurisdiction 
herein, defendants ask that the order denying class certifica­
tion be affirmed.

Respectfully submitted
ROBERT E. HAUBERG 
United States Attorney

sis*ant United Spates Attorney

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'certificate of service
I, JOSEPH E. BROWN, JR., Assistant United States Attorney, 

hereby certify that I have this day mailed, postage prepaid, 
true copies of the foregoing Brief of Appellees to Messrs.
Jack Greenberg, Charles S. Ralston, Melvyn R. Leventhal and 
Bill Lann Lee, Suite 230, 10 Columbus Circle, New York, New 
York 10019; Mr. Joseph P. Hudson, 1909 30th Avenue, Post 
Office Box 908, Gulfport, Mississippi 39501; and Mr. Tyree 
Irvin, Post Office Box 314, 164 Beacon Street, Laurel, Missis­
sippi 39440.

THIS 5th day of October, 1977.

Attorney

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