Littles v. Jefferson Smurfit Corporation (US) Petitioners Reply Brief in Opposition to Certiorari

    No. 95-486

In  T h e

Supreme Court of tfje Hm'teb
O c t o b er  T e r m , 1995

Herbert Littles,
Petitioner,

v.

Jefferson Smurfit Corporation (U.S.),
Respondent.

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

PETITIONER’S REPLY TO RESPONDENT’S 
BRIEF IN OPPOSITION TO CERTIORARI

Elaine R. Jones * James U. Blacksher
Director-Counsel Leslie M. Proll

Theodore M. Shaw
710 Title Building 
300 North 21st Street

Norman J. Chachkin Birmingham, AL 35203
Charles Stephen Ralston (205) 322-1100
NAACP Legal Defense and
Educational Fund, Inc. * Counsel o f Record

99 Hudson Street, 16th fl.
New York, NY 10013 Gregory B. Steen
(212) 219-1900 Stein & Brewster

Reo Kirkland, Jr.
P. O. Box 1051 
Mobile, AL 36633

P.O. Box 646 (334) 433-2002
307 Evergreen Avenue
Brewton, AL 36427 Eric Schnapper
(334) 867-5722 University of

Washington School 
of Law

1100 N.E. Campus Way 
Seattle, WA 98195 
(206) 616-3167 

Counsel for Petitioner



TABLE OF CONTENTS
Page

Table of Authorities ......................................................  i

Petitioner’s Reply to Respondent’s Brief
in Opposition to Certiorari .............................. 1

Conclusion......................................................................... 9

Table of Authorities

Cases:

Conley v. Gibson, 335 U.S. 41 (1 957 )........................5

Demery v. City of Youngstown, 818 F.2d
1257 (6th Cir. 1987)........................................  2n

General Building Contractors Ass’n, Inc. v.
Pennsylvania, 458 U.S. 375 (1982) ................ 2

Goodman v. Lukens Steel Co., 777 F.2d 113 (3d
Cir. 1985), affd, 482 U.S. 656 (1987) ..........  2n

Hishon v. King & Spalding, 467 U.S. 69 (1984) . . .  5

Miree v. DeKalb County, 433 U.S. 25 (1 9 7 7 ) ......... 5

Scheuer v. Rhodes, 416 U.S. 232 (1974)...................5

Statutes:

42 U.S.C. §§ 1981, 1982 ...................................... 1, 7, 8

1



PETITIONER’S REPLY TO RESPONDENT’S 
BRIEF IN OPPOSITION TO CERTIORARI

1.

Although Respondent advances a flurry of factual 
arguments, it expressly acknowledges that the decisions of 
the courts below actually rested on a legal determination: 
a "holding that claims of ‘perpetuation of past 
discrimination’ are not actionable under 42 IJ.S.C. §§ 
1981 and 1982" (Br. Op. 13). As it admits, "the district 
court . . . h[eld] that [Petitioner’s] allegation of 
[Respondent’s] ‘knowing perpetuation of past 
discrimination’ failed to state a claim under §§ 1981 or 
1982" (id. at 24) (emphasis supplied). Whether this 
holding was correct is precisely the issue which Petitioner 
asks this Court to decide; Respondent’s formulation of 
the issue decided below is essentially the same as the first 
Question Presented in the Petition (Pet. i).

The Petition sets forth half a dozen decisions of 
this Court holding, under various circumstances, that 
perpetuation of past intentional discrimination violates the 
Fourteenth or Fifteenth Amendments (Pet. 19-21). 
Respondent does not dispute our characterization of these 
decisions, nor deny that the allegations in the instant case 
would state a claim if the paper mill in question had been 
operated by the State of Alabama rather than by a private 
corporation. Instead, Respondent defends the lower 
court rulings on the same mistaken legal premise relied 
on by the courts below, arguing that the legal standard 
under §§ 1981 and 1982 is different from the
constitutional standard embodied in the Fourteenth and 
Fifteenth Amendments:

The analyses applicable to suits alleging . . . 
invidious, unconstitutional, state-sponsored 
violations of civil rights are completely different



2

from those applicable to suits alleging violations of 
§§ 1981 and 1982 by private businesses.

(Br. Op. 27) (emphasis supplied.) See also id. at 14 
("Constitutional standards are not applicable to this case 
under 42 U.S.C. §§ 1981 and 1982"). This was the very 
position adopted by the trial court (see Pet. App. 26a).

But that holding and argument are flatly 
inconsistent with this Court’s teaching in General Building 
Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 389- 
91 (1982):

[T]he origins of [section 1981] can be traced to 
both the Civil Rights Act of 1866 and the 
Enforcement Act of 1870. Both of these laws, in 
turn, were legislative cousins of the Fourteenth 
Amendment . . . .  The 1870 Act, which contained 
the language that now appears in § 1981, was 
enacted as a means of enforcing the recently 
ratified Fourteenth Amendment. In light of the 
close connection between these Acts and the 
Amendment, it would be incongruous to construe 
the principal object of their successor, § 1981, in a 
manner markedly different from that of the 
Amendment itself. . . . Although congress might 
have charted a different course in enacting the 
predecessors of § 1981 than it did in proposing the 
Fourteenth Amendment, we have found no 
convincing evidence that it did so.1

1Accord, e.g., Demery v. City o f Youngstown, 818 F.2d 1257, 1260 
(6th Cir. 1987); Goodman v. Lukens Steel Co., I l l  F.2d 113, 120 (3d 
Cir. 1985), affd, 482 U.S. 656 (1987).



3

2.

Respondent asserts (Br. Opp. 18) that
the factual linchpin upon which all of Littles’ 
arguments in his Petition depends simply does not 
exist. Since Littles never proffered any evidence 
whatsoever that JSC had a past policy of 
discrimination with respect to its supplier contracts, 
Littles’ arguments . . . raise issues that are not 
presented by the facts of this case, in addition to 
being legally unfounded.

This contention is both misleading and incorrect.
In the first place, it overlooks the fact that five 

months before the trial took place, the district court had 
held that Petitioner’s "knowing perpetuation" contentions 
failed to state a claim and that Petitioner could not 
present them at trial. In denying Petitioner’s motion for 
partial summary judgment,2 the court held that it

need not even determine whether there are any 
material disputed factual issues with respect to 
plaintiffs motion for partial summary judgment 
since the legal claims are not relevant in the 
instant action. As discussed above, if he is to 
prevail in this case plaintiff must prove that the 
defendant intentionally discriminated against him. 
Plaintiff cannot prove intentional discrimination by 
either theory of proof proposed in his motion for

Petitioner moved for partial summary judgment on the "knowing 
perpetuation" claims, "(1) that [Respondent]^ current practices 
perpetuate past and present intentional segregation of [Respondentj’s 
business environment and (2) that [Respondents criteria for 
awarding dealerships ‘lock in’ the effects of [Respondentj’s historical 
discrimination" (Pet. App. 24a-25a).



4

partial summary judgment. If these theories tend to 
prove anything, they prove discriminatory impact, 
which is not actionable under either § 1981 or § 
1982.

(Id. at 25a) (emphasis supplied.) Then, at Respondent’s 
behest, the court ruled that evidence tending to show 
"historical" discrimination by Respondent in awarding 
dealer contracts could not be introduced even on the 
narrower issue whether Respondent’s most recent decision 
not to extend a dealership contract to Littles was 
"intentionally discriminatory." In granting, in part, 
Respondent’s motion in limine, the court interpreted 
Bazemore to stand for the proposition that "evidence of 
pre-Act discrimination was relevant to show that it 
continued, not to show that the continuation of the 
discrimination was intentional" (Pet. App. 31a; see id. at 
32a-33a).

Under these circumstances, it is frivolous for 
Respondent to complain about the quantum of evidence 
of its historic discriminatory dealer contract practices 
introduced or proffered at trial; as the district court 
remarked during the hearing (addressing Respondent’s 
counsel), "you very artfully or forcefully caused me in your 
argument, and I think correctly, to close [the door] on 
[evidence of perpetuation]" (Tr. 283).3

Second, it is untrue that Petitioner "never proffered 
any evidence whatsoever that [Respondent] had a past 
policy of discrimination with respect to its supplier

3Indeed, when Petititioner again sought to argue the "knowing 
perpetuation" claims in his post-trial motion for equitable relief, 
Respondent suggested that sanctions should be awarded against 
Petitioner. See Pet. App. 44a-45a.



5

contracts" (emphasis supplied). It is correct that, faced 
with the district court’s rulings on his motion for partial 
summary judgment and the Respondent’s motion in 
limine, Petitioner did not attempt a comprehensive 
evidentiary presentation of the "knowing perpetuation" 
claims. But Petitioner did in fact make a proffer of 
evidence that is probative of historical discrimination in 
the timber industry in Alabama, of which Respondent is 
a part (Pet. App. 39a-41a). The trial court, as requested 
by Respondent, refused to consider that evidence.

Finally, Respondent’s attack on the factual 
sufficiency of Petitioner’s "knowing perpetuation" claims 
is simply premature. As explained above, the question 
presented by the rulings in this case is whether the courts 
below erred in holding as a matter of law that Petitioner’s 
"knowing perpetuation" allegations "failed to state a claim 
under §§ 1981 or 1982" (Br. Opp. 24). In determining 
that legal issue, well-pleaded factual allegations are 
assumed to be true, Miree v. DeKalb County, 433 U.S. 25, 
27 n.2 (1977); Hishon v. King & Spalding, 467 U.S. 69, 73 
(1984) (same); Conley v. Gibson, 355 U.S. 41, 45-46 (1957) 
(same). "TTie issue is not whether a plaintiff will 
ultimately prevail but whether the claimant is entitled to 
offer evidence to support the claims," Scheuer v. Rhodes, 
416 U.S. 232, 236 (1974).

3.
Preclusion of Petitioner’s opportunity to present 

evidence that, in the past, Respondent itself participated 
in an industry-wide practice of restricting dealerships to 
whites limited Petitioner’s ability to respond to the 
company’s factual defense even on the narrow question of 
its current motives for refusing to give Petitioner a dealer 
contract. Although Petitioner performs all the functions



6

of a wood dealer, procuring 100% of his wood directly 
from landowners, cruising the timber, negotiating its sale 
to various markets, building roads as necessary, hiring 
crews to cut the wood, paying their insurance and 
workmen’s compensation, etc. (Tr. 121-23, 147-49, 456- 
60), Respondent argued to the jury, as it does in this 
Court, that Petitioner’s business is not as large as that of 
most dealers with paper mill contracts (Br. Opp. 5, 7). 
But Petitioner cannot expand his business without access 
equal to that of other dealers to the pulpwood market 
within 30 to 50 miles of his Brewton area timber base, as 
Respondent concedes [id. at 10). Yet as Respondent tells 
this Court, "during the several years prior to trial," it has 
not even considered increasing the number of its Brewton 
area dealers (id. at 12). The question before this Court 
is whether the lower courts committed legal error by 
refusing to allow Petitioner to prove that this all-white 
dealer monopoly is directly traceable to Respondent’s own 
racially discriminatory practices prior to 1979.

4.

As we set out in the margin, even the erroneously 
constricted evidentiary record made below does not 
support the factual assertions set out in the Brief in 
Opposition.4 At this point in the proceedings, however,

4For example, Respondent suggests that few, if any, of its currrent 
dealerships are held by the children of its pre-1979 dealers. But 
Respondent’s Procurement Manager tesified that one "common way 
[new dealers] obtain [a dealership] is through inheritance . . . .  Many 
times a son will come into an operation that his father had previously 
been operating a dealership and his son will take over the business" 
(Tr. 548). Respondent cites three examples to suggest that 
individuals now routinely become dealers by buying existing 
dealerships (Br. Opp. 8). But two of the cited instances are 
acquisitions that occurred in the 1960’s (Tr. 674, 720-21), when



7

factual arguments are premature. Petitioner is not 
seeking a ruling from this Court that the evidence he 
presented was sufficient to establish a "knowing 
perpetuation" claim actionable under 42 U.S.C. §§ 1981

(Petitioner alleges) Respondent refused to permit blacks to become 
dealers in any fashion, and the third example is in fact that of a firm 
inherited by the son of one of the original 1941 co-owners of the 
dealership in question (Tr. 849).

Respondent also asserts that subsequent to 1987 it "made 
thirteen new roundwood supplier contracts" (Br. Opp. 8, 13, 19) 
(emphasis supplied). Respondent’s Procurement Manager explained 
at the trial that these thirteen contracts were "different" from the 
dealerships at issue in the litigation (Tr. 585). Some were "one time 
shot" contracts to buy a single lot of wood from a firm located far 
from Brewton (Tr. 489 (Carter Pulpwood; "no ongoing relationship"), 
493 (Southern Timber; "a one tract deal"), 493-94 (Wire Grass 
Pulpwood; after one transaction, "we ceased doing business")). In a 
number of instances the firms receiving these contracts were dealers 
for other paper mills operated by Respondent outside of Brewton 
(Tr. 497 (firms that "regularly do business" with Respondent’s 
Georgia mills)). Several of the one-time contracts were simply 
arrangements to swap wood with other major paper mills (Tr. 412-13 
("a number of those were wood swaps"), 494). At least one of the 
contracts was to buy wood that was owned by International Paper but 
which had mistakenly been delivered by a railroad to Respondent’s 
Brewton mill (Tr. 418-19, 495-96). None of the firms with which 
Respondent made these thirteen contracts were minority-owned.

Finally, Respondent asserts that the Brewton mill "contracted 
directly with black-owned businesses for the purchase of wood 
products" (Br. Opp. 13 (emphasis supplied); see also id. at 18, 20, 23). 
However, Respondent conceded that it had never contracted directly 
with any black-owned firm to buy the roundwood which it uses to 
manufacture paper (Tr. 562). The transaction cited in the Brief in 
Opposition is a single instance prior to 1984 in which Respondent 
purchased "wood fuel," a reference to wood chips sold to the Brewton 
mill by a black-owned mill in Lowndes County (Tr. 562-63).



8

and 1982. Petitioner seeks only the opportunity to present 
and try such a claim to a jury empaneled in the United 
States District Court for the Southern District of 
Alabama. Nothing that Respondent says in the Brief in 
Opposition changes the fact that Petitioner was prevented 
from making that claim by the district court’s legal ruling 
about the scope of §§ 1981 and 1982.

As we demonstrated in the Petition, that ruling is 
important; it is inconsistent with decisions of this Court 
and of other Courts of Appeals; it is erroneous; it affects 
a major industry in the southern United States; it will 
deny to many African-Americans the legal redress that 
Congress intended they should have to eliminate the 
legacy of past discrimination whose effects continue to 
this day; and it merits review by this Court.



9

Conclusion
For the foregoing reasons as well as those set forth 

in the Petition, a writ of certiorari should issue to review 
the judgment of the court below.

Respectfully submitted,

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Charles Stephen Ralston 
NAACP Legal Defense and 
Educational Fund, Inc.

99 H udson Street, 16th fl.
New York, NY 10013 
(212) 219-1900

Reo Kirkland, Jr .
P.O. Box 646 
307 Evergreen Avenue 
Brewton, AL 36427 
(334) 867-5722

* James U. Blacksher 
Leslie M. Proll 
710 Title Building 
300 N orth 21st Street 
Birmingham, AL 35203
(205) 322-1100

* Counsel o f Record

Gregory B. Stein 
Stein & Brewster 
P. O. Box 1051 
Mobile, AL 36633 
(334) 433-2002

Eric Schnapper 
University of 
Washington School 
of Law

1100 N.E. Campus Way 
Seattle, WA 98195
(206) 616-3167

Counsel for Petitioner