Pullman Standard Incorporated v. Swint Respondent's Brief in Opposition

    No. 88-1601

In The

Supreme Court of tfje fBmtetr #>tate£
October Term, 1989

Pullman-Standard, Inc., etc.,
Petitioner,

v.

Louis Swint, et a l,
Respondents.

On Petition for Writ of Certiorari 
to the United States Court of Appeals 

for the Eleventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

James U. Blacksher 
5th Floor 
Title Building 
300 21st Street, North 
Birmingham, Alabama 35203 
(205) 322-1100

Oscar W. Adams, III 
Brown Marx Building 
Suite 729
2000 First Avenue 
Birmingham, Alabama 35203 
(205) 324-4445

Elaine R. Jones 
NAACP Legal Defense & 

Educational Fund, Inc. 
Suite 301
1275 K Street, N.W. 
Washington, D.C. 20005 
(202) 682-1300

Julius L. Chambers 
Eric Schnapper*

NAACP Legal Defense & 
Educational Fund, Inc.

16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Counsel for Respondents 

* Counsel o f Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



Table of Contents ............. i
Table of Authorities .......   ii
Reasons Why the Writ Should

be Denied ...................  2
I. Discrimination in the 

Selection of Super­
visors ...............  2

II. The Scope of the Class . 12
III. The Statute of Limita­

tions ................  21
Conclusion ....................  26

TABLE OF CONTENTS
Page

i



Boudreaux v. Baton Rouge Marine 
contr. Co., 437 F.2d 1011 
(5th Cir. 1971)   24

Coopers & Lybrand v. Livesay,
437 U.S. 463 (1978)   15

Dothard v. Rawlinson, 433 U.S.
321 (1977)   10

East Texas Motor Freight Co. 
v. Rodriguez, 431 U.S. 395 
(1977)   15

Franks v. Bowman Transportation
Co., 424 U.S. 747 (1976)   19,20,27

General Telephone Co. of South­
west v. Falcon, 457 U.S.
149 (1982)   15

Goodman v. Lukens Steel Co.,
482 U.S. 656 (1987)   25

Hazelwood School District v.
United States, 433 U.S.
299 (1977)   9

Hughes Tool Co. v. Trans World 
Airlines, 409 U.S. 363
(1973)   7

Johnson v. Railway Express 
Agency, Inc., 421 U.S. 454 
(1975)   25

Johnson v. Transportation
Agency, 480 U.S. 616 (1987) . 9

TABLE OF AUTHORITIES Page

ii



Page
Jones v. Preuit & Mauldin,

763 F .2d 1250 (11th Cir.
1985) .......................  25

Mercer v. Theriot, 377 U.S.
152 (1964)   7

Owens v. Okure, 109 S.Ct. 573
(1989)   22

Pullman-Standard v. Swint,
451 U.S. 906 (1981)   3

Swint v. Pullman-Standard,
No. 88-1602 .................  18

Teamsters v. United Sates,
431 U.S. 324 (1977)   16

Wards Cove Packing Co. v.
Atonio, 104 L.Ed.2d 733
(1989)   8

Watson v. Fort Worth Bank &
Trust Co., 101 L.Ed.2d 827
(1988)   8

Wilson v. Garcia, 471 U.S. 261
(1985)    25

28 U.S.C. § 1292 (b)........... 3,5,6,7,
13,14

42 U.S.C. § 1981 .............. Passim
42 U.S.C. § 1983 .............. 25

iii



Page
Title VII, Civil Rights Act of 

1964 .......................
Federal Rules of Civil

Procedure, Rule 8 ....... .
Federal Rules of Civil

Procedure, Rule 23 ........
Moore's Federal Practice ....
Wright & Miller, Federal

Practice and Procedure ....

Passim

22,23

19,20
23

23

IV



No. 88-1601

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1989

PULLMAN-STANDARD, INC., etc.,
Petitioner.

v.
LOUIS SWINT, et al.,

Respondents.

On Petition for a Writ of Certiorari 
to the United States Court of Appeals 

for the Eleventh Circuit

RESPONDENTS' BRIEF IN OPPOSITION

Respondents Louis Swint, et al., 
respectfully request that this Court deny 
the petition for writ of certiorari.



2

TREASONS WHY THE WRIT SHOULD BE DENIED
I • Discrimination in the Selection 

of Supervisors
(1) Petitioner asserts that the 

court of appeals erred in finding that the 
employer's method of selecting foremen had 
an unlawful disparate impact in violation 
of Title VII. (Pet. 14-20) The thres­
hold difficulty with this contention is 
that for procedural, arguably jurisdic­
tional reasons, it cannot be raised on 
appeal at this point in the litigation.

The Eleventh Circuit held that these 
promotion practices violated Title VII, 
but it did so not in its recent 1988 
opinion, but in its earlier 1980 opinion. 
(Pet. App. 222a-227a). Petitioner could 
have sought review of that decision nine 
years ago, and it did, but in vain. 
Petitioner's 1980 certiorari petition 
expressly asked this Court to reconsider 
this aspect of the 1980 Eleventh Circuit



3

decision,1 but the Court limited its grant 
of certiorari to questions related to the 
disputed seniority system. Pullman- 
standard v. Swint. 451 U.S. 906 (1981) 
(Pet. App. 232a).

Although the Eleventh Circuit's 1988 
opinion also addressed one aspect of this 
issue, it did so subject to a constraint 
equally applicable to this Court. The 
foreman promotion issue was before the 
court of appeals in 1988 only because, and 
to the extent that, a single subsidiary 
question had been certified for inter­
locutory appeal pursuant to 28 U.S.C. § 
1292(b). The question so certified was 
whether

there has been a finding of 
intentional discrimination in 
the selection of supervisory

1 The third and fourth questions 
in that petition dealt with the selection 
of supervisors. Petition for Writ of 
Certiorari, No. 80-1190, pp. ii-iii; 27-
30.



4

personnel ... and ... the 
defendant is subject to 
potential liability at a Phase 
II hearing with respect to such 
claims.

(Pet. App. 284a) (emphasis added) (See 
also id. at 282a-283a).2 Petitioner's 
central contention in the 1988 appeal was 
that the 1980 opinion fell short of the 
finding of intentional discrimination 
that, petitioner contended, was necessary 
to warrant proceeding to a Phase II 
h e a r i n g  r e garding the amount of 
petitioner's liability. The Eleventh 
Circuit dismissed this argument as 
irrelevant, explaining that its 1980 
decision had rested on a finding of 
unlawful discriminatory impact. not

2 The district court order to 
which this question apparently referred 
had ruled that the 1980 circuit opinion 
constituted a sufficient finding of 
intentional discrimination. (Pet. App. 
282a).



5

unlawful discriminatory intent.3 Under 
section 1292(b) the only issue regarding 
supervisors over which the Eleventh 
Circuit had jurisdiction in the 1988 
certified appeal was whether the 1980 
opinion lacked an allegedly essential 
finding of discriminatory intent; 
petitioner does not here contest that 
aspect of the 1988 opinion, and does not 
ask this Court to review it.

The 1988 opinion does go on to 
explain the holding of the 1980 decision,

J Pet. App. 51a-52a:
"[I]n the company's view, the 

Swint VI holding does not constitute 
the required finding of intentional 
discrimination.... It is true ... 
that Swint fVIl does not include a 
finding that Pullman intentionally 
discriminated in its selection of 
supervisors. That observation, 
however, is irrelevant: the
plaintiffs here clearly proceeded on 
a disparate impact, rather than 
disparate treatment, theory, and thus 
did not need to prove discriminatory 
intent."



6

and to note the different standard of 
proof in a disparate impact case and a 
disparate treatment case. But this 
commentary does not and could not present 
a distinct issue, outside the scope of 
section 1292(b), that could be reviewed by 
this Court. This Court reviews holdings, 
not reasons, and the dispositive holding 
in the certified appeal was that the 1980 
opinion did not lack an essential finding 
of discriminatory intent, a holding with 
which petitioner does not now disagree.

We do not suggest that petitioner is 
forever precluded from bringing to this 
Court the issues raised in its petition, 
but only that it cannot do so at this 
interlocutory point in the litigation. 
Once a final judgment has been entered on 
the foreman issue, petitioner could seek 
review by this Court and ask it to reach 
back and correct any legal error



7

underlying that judgment. Mercer v. 
Theriot. 377 U.S. 152, 153-54 (1964).
This Court could do so despite having 
denied certiorari in 1980. Hughes Tool 
Co. v. Trans World Airlines. 409 U.S. 363, 
365 n. 1 (1973). But at this point in the 
litigation it would be inconsistent with 
the constraints of section 1292(b), and 
with the policy against interlocutory 
appeals, to convert an appeal of a 
narrowly drawn certified question into a 
plenary interlocutory review of any and 
all aspects of the claim.4

4 For the same reason petitioner 
cannot at this point in time seek review 
of its objection that certain aspects of 
the Eleventh Circuit's 1980 opinion, which 
this Court previously declined to review, 
c o n s t i t u t e d  i m p r o p e r  a p p e l l a t e  
factfinding. (Pet. 26-28). Petitioner 
objects that in 1988 the Eleventh Circuit 
improperly "refused to reconsider" its 
1980 decision. (Pet. 26) . In light of 
the limited scope of the section 1292(b) 
certified question, that refusal was for 
procedural reasons entirely proper.



8

(2) Petitioner suggests that the 
1980 and 1988 Eleventh Circuit opinions 
failed to anticipate the changes in the 
law brought about by Watson v. Fort Worth 
Bank & Trust Co.. 101 L.Ed.2d 827 (1988),
and, presumably, Wards Cove Packing Co, 
v. Atonio. 104 L.Ed.2d 733 (1989). There
is dictum in the 1988 opinion placing on 
an employer in a disparate impact case not 
only the burden of production. but also 
the burden of proof regarding the business 
justification for practices with a 
disparate impact. (Pet. 18-20). (See 
Pet. App. 53a) . But in this case the 
actual 1980 finding of a Title VII 
violation was, in the view of the 1988 
appellate panel, premised on a holding 
that petitioner had failed to meet its 
burden of production. The court of 
appeals in its 1988 opinion explained that 
the 1980 opinion was grounded on a



9

determination that "Pullman had offered no 
legally acceptable evidence that its 
subjective selection procedure was a 
business necessity." (Pet. App. 53a).

Petitioner asserts that the Eleventh 
Circuit held "in effect" that a plaintiff 
could establish a prima facie case of 
disparate impact without having to 
compare an employer's selection rate with 
the composition of the pool of qualified 
individuals. (Pet. 14-17). The Eleventh 
Circuit's 1988 opinion, however, expressly 
emphasized the existence of just such a 
requirement:

We recognize fully that Johnson fv. 
Transportation Agency. 480 U.S. 616 
(1987)] and Hazelwood [School 
District v. United States. 433 U.S. 
299 (1977)] require plaintiffs to
recognize the basic qualifications 
for a position and exclude from 
their statistical pools persons who 
are obviously unqualified.

(Pet. App. 56a n. 50). Petitioner
suggests that the appellate court, in



10

finding a prima facie case of disparate 
impact, improperly overrode the 
determinations of the district court (Pet. 
15); in fact, the district court too found 
such a prima facie case. (Pet. App. 171a, 
222a).

Disputes regarding whether evidence 
of disparate impact is sufficiently 
refined raise essentially fact-specific 
questions about the practices and business 
needs of an individual employer.5 In this 
case that factual assessment has proved 
particularly difficult. As the Court of 
Appeals observed in 1980, there was a 
"lack of any articulated or defined skills 
which are necessary to perform capably as 
a temporary or salaried foreman at

5 Dothard v. Rawlinson. 433 U.S. 
321, 330-31 (1977). ("If the employer 
discerns fallacies or deficiencies in the 
data offered by the plaintiff, he is free 
to adduce countervailing evidence of his 
own.")



11

Pullman-Standard.” (Pet, App. 226a). The 
appellate court noted in its 1976 opinion 
that there were "no established criteria 
for selection of new foremen.” (Pet. 
App. 136a).

The factual problems involved in
evaluating this record are illustrated by
the somewhat different manner in which
petitioner has characterized its own
practices. In its pending petition the
company maintains that "experience in the
particular or related department was
normally required" for promotion to a
foreman position. (Pet. 15) . (Emphasis
added) . But in its 1980 certiorari
petition the company adamantly insisted
that there was no such requirement:

P u l l m a n  c l e a r l y  imposed no 
requirement that a foreman be 
promoted from within the same 
department.... [T]he Fifth Circuit 
apparently misunderstood it did.... 
[and] then held that Pullman 
discriminated against blacks in 
promotions to foremen ... because the



12

imaginary requirement that super­
visors be promoted from within the 
same department was not a "business 
necessity.1,6

It would not be appropriate to grant 
certiorari to resolve the fact-specific 
conflict between the company's two 
certiorari petitions.
II. Scope of the Class

The issue framed by petitioner 
regarding the scope of the class also 
appears to be unreviewable at this 
interlocutory point in the litigation, 
although it could be raised at a later 
date. The authority of the appellate 
courts to address this question is 
circumscribed by the scope of the specific 6

6 P e t i t i o n  f or W r i t  of 
Certiorari, No. 80-1190, p p . 28-29
(emphasis added). See also id. at 9 ("The 
evidence and the District Court's own 
findings showed that Pullman did not 
restrict promotions to temporary foreman 
to intradepartmental ones") , id.. 
("undisputed evidence shows [that 
experience in the same department] was 
never a requisite to such promotions").



13

question certified under section 1291(b).
That question was whether

the named plaintiffs [have] standing 
to represent class members claiming 
d i s c r i m i n a t o r y  i n i t i a l  job 
assignments during the period from 
July 17. 1969 to August 16, 1974.

(Pet. App. 285a) (Emphasis added).7 The
question so certified is now clearly moot.
The district court held that assignment
discrimination ended by January 31, 1969,
and the Eleventh Circuit upheld that
finding. (Pet. App. 41a) The only
assignment discrimination claims still

7 Alth o u g h  section 1292(b) 
provides for certification of an order for 
an interlocutory appeal, the district 
court's certification in this regard makes 
no reference to the issue having been 
resolved by any prior district court 
order, but simply certifies the quoted 
question. In requesting leave to appeal 
by the Eleventh Circuit, petitioner 
attributed to the prior court of appeals 
decision, not to the district court, the 
decision to sustain this aspect of the 
class. Petition of Pullman-Standard for 
Leave to Appeal Pursuant to 28 U.S.C. § 
1292(b), No. 86-2143 (11th Cir), pp. 27-
31.



14

being litigated in this case involve 
assignments occurring prior to February 1, 
1969.

Petitioner contends that the class 
represented by the named plaintiff cannot 
include employees who were subject to 
"post-Act d i s c r i m i n a t i o n  in ... 
assignments." (Pet. 23), i.e. employees 
subjected to that discrimination after 
July 1, 1965. But the period from July
1965 through January 1969, the era of the 
proven actionable assignment discrimina­
tion in this case, is outside the scope of 
the certified section 1292(b) question. 
Similarly, petitioner argues that the 
named plaintiffs cannot litigate class 
claims of discrimination in the selection 
of supervisors; but that too is clearly 
outside the scope of the certified 
question. Again, as we noted above, there 
are issues which petitioner can raise



15

after final judgment. In both General, 
Telephone Co. of Southwest v. Falcon, 457 
U.S. 147, 153 (1982), and East Texas Motor
Freight v. Rodriguez. 431 U.S. 395, 400
(1977) , the appeal regarding the scope of
the plaintiff class was entertained only 
after the entry of final judgment on the 
merits of those claims. " [Ojrders
granting class certification are 
inherently interlocutory," Coopers & 
Lvbrand v. Livesav. 437 U.S. 463, 476
(1978) , and are "subject to effective 
review after final judgment." Id., 437 
U.S. at 469.

The decision of the appellate court 
approving the scope of the class in this 
case reflected not an unthinking "'across- 
the-board' approach to Title VII class 
actions" (Pet. 21), but a carefully 
reasoned analysis of the claims of the 
named plaintiffs and the putative class



16

members. The Eleventh Circuit correctly- 
noted that

[f]rom the start, the plaintiffs' 
basic complaint has been that Pullman 
prevented black employees from moving 
into its higher-level positions 
through a combination of discrimina­
tory initial assignments and a 
departmental seniority system. At the 
time of certification, this claim was 
legally identical to that of every 
other member of the class.

(Pet. App. 3 9a-4 0a) . There were from the
outset of this litigation two questions of
fact common to the named plaintiffs and
all of the putative class members: (1)
Did the company engage in a pattern and
practice of assigning newly hired black
workers to less desirable departments? and
(2) Was the effect of such discrimination
in assignments unlawfully perpetuated by
the plant seniority system? See Teamsters
v. United States. 431 U.S. 324, 343-56



17

(1977).8 The named plaintiffs could not 
prevail without demonstrating that they 
had been given initial assignments on the 
basis of race; they undertook to do so, as 
is normal in a race discrimination case, 
by attempting to show that the company 
engaged in a longstanding general practice 
of discrimination in assignments.

This case was initially certified in 
1974, without objection, to include a 
class of all black workers employed at the 
plant since 1965.9 (Pet. App. 9a) The 
district court initially held that there 
had been relatively little assignment

8 The district court noted in 1974 
that the class issues included, "Does the 
system of departmental seniority 
perpetuate the effects of past discrimina­
tion in the assignment of black employees 
among the various departments?" (Pet. 
App. 66a).

The class action encompassed all 
claims arising within one year of the 
earliest Title VII charge. (Pet. App. 
20a) . The earliest such charge was filed 
in 1966.



18

discrimination even prior to 1965. (Pet. 
App. 74a) . The Fifth Circuit in 1976 
vacated that holding and remanded the 
issue for further proceedings. (Pet. App. 
128a) . On remand in 1977 the district 
court found that at least until 1965 there 
had indeed been a general policy of 
discrimination in assignment. (Pet. App. 
160a-161a). Thereafter litigation
continued regarding when that discrimi­
natory practice ended, and regarding 
whether the effects of that discrimina­
tion were unlawfully perpetuated by the 
seniority system.10

At the point in time when this case 
was filed, and the class was certified, 
respondents' claim that petitioner engaged 
in a general practice of assignment

10 The validity of the seniority 
system is the subject of our own 
petition. Swint v. Pullman-Standard Co. . 
No. 88-1602.



19

discrimination, and perpetuated the 
effects of that discrimination through its 
seniority system, presented a paradigm of 
the type of claim for which a Rule 
23(b)(2) class action is appropriate.11 
If the individual claims of the named 
plaintiffs had thereafter failed, that 
would not have precluded them from 
continuing to represent the certified 
class. Franks v. Bowman Transportation 
Co.. 424 U.S. 747, 753-57 (1976). A
fortiori respondents are not precluded 
from continuing to represent the class 
simply because they have now succeeded in 
showing that they were the victims of 
assignment discrimination.

Petitioner objects that the named 
plaintiffs do not have "a personal stake"

11 C l a s s  c e r t i f i c a t i o n  is 
appropriate if, inter alia "[t]he party 
opposing the class has acted ... on 
grounds generally applicable to the 
class." F.R.Civ. Pro., Rule 23(b)(2).



20

in whether there was assignment discrimi­
nation after 1965. (Pet. 21). But this 
is an attack, not on the decision of the 
Eleventh Circuit, but on Rule 23 itself. 
A class representative virtually never has 
a "personal stake" in whether individual 
class members personally collect a money 
judgment or receive the benefits of an 
injunctive decree. As this Court 
explained in Franks. even after the claims 
of a class representative have been 
resolved and he or she no longer has any 
"personal stake in the outcome" of the 
litigation, class certification confers on 
the named plaintiffs authority to continue 
to represent the interests of the class 
members whose claims remain in dispute. 
Franks v. Bowman Transportation Co. , 424
U.S. at 752-57.



21

III. The Statute of Limitations
Petitioner argues that the statute of 

limitations for a section 1981 claim 
arising in Alabama should be one year 
(Pet. 28-29), rather than the six year 
period adopted by the court below. (Pet 
App. 29a-35a) . Petitioner does not
contend that the claims in this case are 
time barred, but seeks only to shorten the 
period for which it faces back pay 
liability. The practical significance of 
this issue is in the instant case somewhat 
limited. The Court of Appeals held that 
the limitations period for respondents' 
Title VII claims, which encompass all the 
claims also asserted under section 1981, 
commenced on September 28, 1966, (Pet.
App. 19a-28a), a holding which petitioner 
does not challenge. Utilization of a six 
year limitation period for the section 
1981 claim in fact extends the total



22

period of back pay liability less than a 
year, since most of that six year period 
overlaps the years when back pay would in 
any event be available under Title VII.

Petitioner urges that Owens v. Okure, 
109 S.Ct. 573 (1989) , indicates that the 
one-year Alabama residual statute of 
limitations, rather than a six year 
limitations period, should now be applied 
in section 1981 actions arising in that 
state. That contention, even if correct, 
would not control the rule of limitations 
to be applied in this case.

Rule 8(c), F.R.Civ. Pro., requires a 
defendant to "set forth affirmatively" in 
its answer any "statute of limitations" 
defense. In its original 1971 answer, 
petitioner stated:

This defendant avers that the 
applicable statutes of limitations, 
Alabama Code, Title 7, Sections 21 
and 22, bar all claims made in the 
complaint, based on 42 U.S.C.A., 
Section 1981, arising more than six



23

vears prior 
complaint.

to the filing of the

(Pet. App. 35a n. 35) (Emphasis added).
Petitioner never sought to amend its
answer, and did not assert the existence 
of any shorter limitations period until 
this litigation had been pending for over 
a decade.12 The Eleventh Circuit properly 
recognized that such conduct, at least 
ordinarily, constitutes "a waiver of the 
shorter statute." (Pet. App. 35a).13

Even if it were not now too late for 
petitioner to disavow its longstanding

The Court of Appeals noted that 
"[t]here is a strategic reason why a class 
action defendant might waive objections to 
the size or inclusiveness of a class: a 
favorable decision against an all- 
inclusive class of plaintiffs will in 
many instances bar further suits." (Pet. 
App. 21a n. 2 6) .

13 All circuit courts agree that a 
failure to plead a statute of limitations 
waives that affirmative defense under Rule 
8. 5 Wright & Miller, Federal Practice 
and Procedure. § 1278; 2A Moore's Federal 
Practice. % 8.27[4].



24

position that section 1981 claims are 
subject to a six year period of 
limitations, the major issues raised by 
Owen s in this case would concern 
retroactivity. During the 18 years since 
this case was filed the law regarding the 
section 1981 period of limitations has 
reversed field several times. At the 
time this case was first filed, the (then) 
Fifth Circuit law was that the period of 
limitations for a section 1981 claim was 
ten years, and that that limitations 
period itself was tolled by the filing of 
a Title VII charge.14 The district judge 
in this case applied that tolling rule in 
his 1974 order specifying the period 
during which back pay claims on behalf of 
the class were at issue.15 In 1975

14 Boudreaux v. Baton Rouge Marine 
Contr. Co.. 437 F.2d 1011, 1017 n. 16
(5th Cir. 1971).

15 Pet. App. 20a.



25

Johnson v. Railway Express Agency.,_Inc..,
421 U.S. 454 (1975), overturned the 
circuit court's tolling rule. For a time 
the Fifth Circuit then held that section 
1981 claims should be governed by the 
Alabama limitations period for contract 
actions; that line of decisions was 
overturned by Wilson v. Garcia, 471 U.S. 
261 (1985) (§ 1983) and Goodman v. Lukens
Steel Co.. 482 U.S. 656 (1987) (§ 1981).
The Eleventh Circuit thereafter construed 
Wilson to require the use of the six year 
Alabama rule for trespass to person or 
liberty. Jones v. Preuit & Mauldin, 763 
F . 2d 1250, 1256 (11th Cir. 1985). Now,
petitioner maintains, Jones has in turn 
been overruled by Owens. Which of this 
succession of supervening decisions should 
and should not be applied retroactively to 
the unique and complex circumstances of 
this litigation is a fact specific



26

question peculiar to this case. It is not 
a question which warrants review by this 
Court or which, after 18 years of 
litigation, respondents should be required 
to litigate yet again.

CONCLUSION
This case, possibly more than any 

employment discrimination suit of our era, 
has been buffeted and prolonged by 
seemingly incessant changes in the law. 
This case has been tried 4 times, and has 
to date given rise to 11 opinions. The 
foreman selection issue was originally 
tried 15 years ago, and the finding of 
liability was made 9 years ago. The 
district court first found 15 years ago 
that there had been a practice of pre- and 
post-Act assignment discrimination. (Pet. 
App. 77a). To date not a single penny of 
back pay has been ordered to implement 
those liability determinations, and Stage



27

II proceedings to calculate the back pay 
awards have not even begun. After 18 
years of litigation, many of the original 
class members have died. (Pet. App. 3a). 
It would be unconscionable to now require 
that this entire process begin anew.*6

For the above reasons, the petition 
for a writ of certiorari should be denied.

Respectfully submitted,

ELAINE R. JONES
NAACP Legal Defense & 

Educational Fund, Inc. 
Suite 301
1275 K Street, N.W. 
Washington, D.C. 20005 
(202) 682-1300)

1 b S e e  F r a n k s  v. B o w m a n  
Transportation Co. . 424 U.S. at 757 n. 9
("to 'split up' the underlying case and 
require that the individual class members 
begin anew ... would be destructive of the 
ends of judicial economy as well as 
postpone indefinitely relief which under 
the law may already be long overdue.")



28

JAMES U. BLACKSHER 
5th Floor 
Title Building 
300 21st Street, North 
Birmingham, Alabama 35203 
(205) 322-1100

OSCAR W., ADAMS, III 
Brown Marx Building 
Suite 729
200 First Avenue, North 
Birmingham, Alabama 35203 
(205) 324-4445

JULIUS L. CHAMBERS 
ERIC SCHNAPPER*

NAACP Legal Defense & 
Educational Fund, Inc. 

16th Floor 
99 Hudson Street 
New York, New York 10013

Counsel for Respondents
♦Counsel of Record