Cooper v. Federal Reserve Bank of Richmond Petition for Writ of Certiorari to the US Court of Appeals for the Fourth Circuit

    No. 81-1536

IS THE

ji>uprm£ ©Hurt n i X\\t United States
O ctober T e em , 1983

S ylvia  C ooper, et al.,
Petitioners, 

v.

F ederal R eserve B a n k  op R ic h m o n d .

P h y l lis  B axter , et. al., 

v.
Petitioners,

F ederal R eserve B a n k  op R ic h m o n d .

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

J . L eV onne  C h am bers  
J o h n  N ockleby

Chambers, Ferguson, Watt, 
Wallas, Adkins & Fuller, P.A. 

Suite 730
East S. Independence Boulevard 
Charlotte, North Carolina 28202

J ack  G reenberg 
0 . P eter  S herwood 
C harles S te p h e n  R alston  
E ric S c h n a ppe r*

Suite 2030 
10 Columbus Circle 
New Toi’k, New York 10019 
(212) 586-8397

Counsel for Petitioners 

* Counsel of Record



QUESTIONS PRESENTED

1. Did the Court of Appeals err 
in holding that a prior finding that any 
pattern or practice of employment discrimi­
nation was not "pervasive" precludes, 
as a matter of res judicata, all employees 
from litigating any individual claims 
of discrimination?

2. Did the Court of Appeals violate 
the principles of Pullman-Standard Co. v. 
Swint, 456 U.S. 273 (1982) when it held that 
the trial court's finding of intentional 
discrimination was "a statement of ultimate 
fact ... not a finding of fact reviewable 
under the 'clearly erroneous' rule"?

3. Does Rule 52, F.R.C.P., authorize 
the appellate courts to reconsider de novo 
or give little weight to the decision of a 
district court merely because the lower 
court based its findings of fact on pro-

l



posed findings submitted by counsel at the 
direction of the court?



The parties to this proceeding are 
Sylvia Cooper, Constance Russell, Helen 
Moore, Elmore Hannah, Jr., Phyllis Baxter, 
Brenda Gilliam, Glenda Knotts, Alfred 
Harrison, Sherri McCorkle, the Federal 
Reserve Bank of Richmond, and a class

PARTIES

composed of all black persons who were
employed at the Charlotte facilities of
the Bank at any time between January 3,
1974, and September 8, 1980, who were
subjected to employment discrimination on 
the basis of race. The Equal Employment 
Opportunity Commission was a party to the 
Cooper action in the courts below.

i i i



TABLE OF CONTENTS

Questions Presented .........   i
Parties .................................. ii
Table of Authorities ....................  vi
Opinions Below ..........................  2
Jurisdiction ............................  3

Rule Involved ...............   3

Statement of the Case ...................  4
Reasons for Granting the Writ ...........  12

I. Certiorari Should Be Granted to 
Resolve A Conflict Among the 
Courts of Appeals Regarding 
Whether A Finding of No Pervasive 
Pattern and Practice of Discrimi­
nation Bars All Individual 
Claims of Discrimination Because of Res Judicata ................  12

II. Certiorari Should Be Granted to 
Resolve A Conflict Among the 
Courts of Appeals Regarding the 
Use of Proposed Findings Prepared
by Counsel for a Party .........  19

III. The Decision of the Court of 
Appeals Is Inconsistent With 
Pullman-Standard Co. v. Swint,
456 U.S. 273 (1982) ............. 38

- iv



Page

Conclusion ..............................  41
APPENDIX

Opinion of the Court of Appeals,
January 11, 1983 ................   2a

Order of the Court of Appeals
Denying Rehearing, April 6, 1983 .. 186a

Order of the Court of Appeals 
Denying Rehearing En Banc,
April 6, 1 983 ....................  188a

District Court Memorandum of Decision, 
October 30, 1980 .................  191a

District Court Findings of Fact and
Conclusions of Law, May 29, 1981 .. 197a

District Court Order, May 29, 1981 .. 286a
District Court Order, February 26,
1982 ...............................  290a

v



TABLE OF AUTHORITIES

Cases: Page
Amstar Corporation v. Domino's Pizza, Inc.,

615 F. 2d 552 (5th Cir. 1980) .........  23, 29
Askew v. United States, 680 F.2d 1206

(8th Cir. 1982) . ......................  23, 29
Bradley v. Maryland Casualty Co.,

382 F. 2d 415 (8th Cir. 1967) .........  23, 24
Bogard v. Cook, 586 F.2d 399

(5th Cir. 1978) ......................  13
Chicopee Manufacturing Corp. v. Kendall

Co., 288 F.2d 719 (4th Cir. 1961) ....  26
Connecticut v. Teal, U.S. ,

73 L.Ed. 2d 130 (1982) ...............  16
Continuous Curve Contact Lenses v. Rynco 

Scientific Corp., 680 F.2d 605 (9th 
Cir. 1982) ...........................  25, 30

Cuthbertson v„ Biggers Brothers, Inc.,
(4th Cir.) (slip opinion, March 9,
1983) .................................. 28

Dickerson v. United States Steel, 582
F. 2d 827 (3d Cir. 1978) ..... ......... 12

Eastland v. T.V.A., F.2d
(11th Cir. 1983) ........ ............. 14-15

Franks v. Bowman Transportation Co.,
424 U.S. 747 (1976) ................... 16, 17

Furnco Construction Co. v. Waters,
438 U.S. 567 (1978) ................... 15

- vi -



Halkin v. Helms, 598 F.2d 1
(D.C. Cir. 1978) .....................  20

Hill & Range Songs, Inc. v. Fred Rose 
Music, Inc., 570 F.2d 554
(6th Cir. 1978) ................. ..... 21

Holsey v. Armour, 683 F.2d 864 '

(4th Cir. 1982) .................... . . 27
In Re Las Colinas, Inc.,426 F. 2d 1005 (1st Cir. 1970) ........  25, 2829
International Controls Corp. v. Vesco,

490 F. 2d 1334 (2d Cir. 1974) .........  25
Kelson v. United States, 503 F.2d 1291

(10th Cir. 1974) .....................  23
Marshall v. Kirkland, 602 F.2d 1282

(8th Cir. 1979) ......................  14
Mississippi Valley Barge Line Co. v.

Cooper Terminals, 217 F.2d 321
(7th Cir. 1954) ......................  22

O'Leary v. Liggett Drug Co.,
150 F. 2d 656 (6th Cir. 1946)..........  21

Pullman-Standard Co. v. Swint, 456 U.S.
273 (1982) ...........................  7, 38,39, 40

Ramey Construction Co. v. Apache Tribe,
616 F. 2d 464 (10th Cir. 1980) ........  25, 28

Roberts v. Ross, 344 F.2d 747
(3d Cir. 1965) .......................  23, 24,

Saco-Lowell Shops v. Reynolds,141 F. 2d 587 (4th Cir. 1944) .........  19, 26

- vii -



Page

Schilling v. Schwitzer-Cummins Co.,
142 F. 2d 82 (D.C.Cir. 1944) ........... 21

Scheller-Globe Corp. v. Milsco Mfg. Co.,
636 F. 2d 177 (7th Cir. 1980) .........  22

Schlensky v. Dorsey, 574 F.2d 131
(3d Cir. 1978) .......................  23

Schwerman Trucking Co. v. Gartland 
Steamship Co., 496 F.2d 466
(8th Cir. 1974) ......................  22

The Severance, 152 F.2d 916
(4th Cir. 1945) ..... ................. 26

Teamsters v. United States, 431 U.S.
324 (1977) ...........................  16, 1 7

United States v. Crescent Amusement Co.,
323 U.S. 173 (1945) ............. ..... 37

United States v. El Paso Natural Gas
Co. , 376 U.S. 651 (1964) .............  37

White v. Carolina Paperboard Corp.,
564 F.2d 1073 (4th Cir. 1977) ......... 27

Statutes;
28 U.S.C. § 1254(1) .....................  3
42 U.S.C. § 2000e-5 .....................  5

- viii -



Page

Rules:
Rule 23(a), Federal Rules of

Civil Procedure .................. .___ 17, 18
Rule 52(a), Federal Rules of Civil

Procedure ........................ 25, 38
Rule 19.4, Supreme Court Rules ...... ___ 2

IX



UNITED STATES SUPREME COURT
October Term, 1983 

No. 81-1536

SYLVIA COOPER, et al.,
Petitioners

v.
FEDERAL RESERVE BANK OF RICHMOND

PHYLLIS BAXTER, et al.,
Petitioners, 

v.
FEDERAL RESERVE BANK OF RICHMOND,

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

Petitioners Sylvia Cooper, et al., and 
Phyllis Baxter, et al., respectfully pray 
that a Writ of Certiorari issue to review
the judgment and opinion of the United
States Court of Appeals for the Fourth



2

Circuit entered in this proceeding on 
January 11, 1983. Civil actions commenced
separately by petitioners Cooper and Baxter 
were consolidated in the court of appeals; 
a joint petition is being filed pursuant 
to Rule 19.4 of this Court.

OPINIONS BELOW
The decision of the court of appeals 

is reported at 698 F.2d 633 , and is set 
out at pp. 2a- 185a of the Appendix. The
order denying rehearing, which is not yet 
reported, is set out at p. 186a. The 
district court's Memorandum Decision of 
October 30, 1980, is not reported, and
is set out at pp. 191a-96a. The district 
court's Findings of Fact and Conclusions 
of Law, which is not reported is set out 
at pp. 197a-285a. The district court orders 
of May 29, 1981, and February 26, 1982,
which are not reported, are set forth at pp. 
286a-88a and 290a-97a respectively.



JURISDICTION
The judgment of the Court of Appeals 

was entered on January 11, 1983. A timely 
Petition for Rehearing was filed, which was 
denied on April 6, 1983 by an equally 
divided court. (App. p. 186a) This Court 
granted an extension of time in which to 
file the Petition for Writ of Certiorari 
until August 4, 1983. Jurisdiction of this 
Court is invoked under 28 U.S.C. § 1254(1).

RULE INVOLVED
Rule 52(a), Federal Rules of Civil 

Procedure, provides:
In all actions tried upon the facts 
without a jury or with an advisory 
jury, the court shall find the facts 
specially and state separately its 
conclusions of law thereon, and 
judgment shall be entered pursuant 
to Rule 58; and in granting or refus­
ing interlocutory injunctions the court



4

shall similarly set forth the find­
ings of fact and conclusions of law 
which constitute the grounds of its 
action. Requests for findings are not 
necessary for purposes of review. 
Findings of fact shall not be set aside 
unless clearly erroneous, and due 
regard shall be given to the opportun­
ity of the trial court to judge of the 
credibility of the witnesses. The 
findings of a master, to the extent 
that the court adopts them, shall be 
considered as the findings of the 
court. If an opinion or memorandum of 
decision is filed, it will be suffi­
cient if the findings of fact and 
conclusions of law appear therein. 
Findings of fact and conclusions of law 
are unnecessary on decisions of motions 
under Rules 12 or 56 or any other 
motion except as provided in Rule 
41(b).

STATEMENT OF THE CASE 
This petition involves two related 

proceedings which were consolidated in the 
court of appeals for argument and decision.

Cooper Plaintiffs: On March 22, 1977
the EEOC brought suit against the Federal 
Reserve Bank of Richmond alleging that the 
Bank had discriminated against black employ­
ees in making promotions at its Charlotte,



5

North Carolina facilities, and that it had 
discriminated in particular against Sylvia 
Cooper because of her race, first by refus­
ing to promote her to a supervisory position 
and then by discharging her. Jurisdiction 
was asserted under 42 U.S.C. 2000e-5. On 
September 21, 1977, Cooper and three other
present or former Bank employees (the 
"Cooper plaintiffs") were permitted to 
intervene as plaintiffs. On April 28, 1978, 
the district court certified a plaintiff 
class consisting of blacks who had been 
employed at the Bank's Charlotte branch 
since January 3, 1974, and had been dis-
crimminated against on the basis of race.

The case was tried without a jury in 
September, 1980. On October 30, 1980, the 
district court issued a Memorandum of 
Decision which held that the Bank had 
discriminated against Cooper and another



6

intervenor, but concluding that no such 
discrimination had been shown regarding 
the other two intervenors. The trial court 
also concluded that the Bank had engaged in 
a pattern and practice of discrimination 
in denying promotions to black employees 
in pay grades 4 and 5.

The district court directed counsel 
for the plaintiffs to propose more detailed 
"findings of fact and conclusions of law 
consistent with [its] findings." 194a. 
The plaintiff submitted the requested pro­
posed findings, and the defendant responded 
with comments and objections of its own. On 
May 29, 1981, the district court issued 
proposed findings substantially similar to 
those urged by plaintiff. 197a-285a.

On appeal the Fourth Circuit held that 
the finding of discrimination contained 
in the district court's October 30, 1980 
Memorandum was "a statement of ultimate



7

fact ... not ... reviewable under the 
'clearly erroneous' rule." 15a. The 
court of appeals ruled that the more 
detailed findings issued by the district 
court were to be subject to a special 
"careful scrutiny" (23a) because based 
on findings proposed by counsel, a practice 
the appellate court expressly disapproved. 
16a. The court of appeals then undertook 
an exhaustive 25,000 word re-examination 
of the evidence considered by the trial 
judge, and reversed each of his findings of 
discrimination. Petitioners sought rehearing 
en banc in the Fourth Circuit, urging inter 
alia that the panel's decision exceeded 
the bounds of appellate review permitted 
by Rule 52(a), Federal Rules of Civil 
Procedure, and by this Court's decision in 
Pullman-Standard Co. v. Swint, 456 U.S. 
273 (1982). Rehearing en banc was denied by 
an equally divided court, judges Winter,



8

Phillips, Murnaghan and Sprouse all having 
voted to reconsider the panel decision.

Baxter Plaintiffs
At the trial of the Cooger class 

action the plaintiffs presented testimony 
from a number of class member witnesses, 
including Phyllis Baxter, Brenda Gilliam, 
Glenda Knott and Sherri McCorkle (the 
"Baxter plaintiffs"), all of whom held 
job grades 6 or above. The Bank success­
fully argued that the district court should 
receive the class members' testimony 
only as it related to the pattern and 
practice allegation, and that the court 
should not pass on the merits of these 
witnesses' individual claims. The trial 
court ruled that the individual claims 
of the Baxter plaintiffs would not be heard, 
and that the Court would not consider their 
testimony except insofar as it tended to



9

establish the existence of a class-wide 
pattern and practice of discrimination.

After trial, the district court issued 
a Memorandum of Decision in the Cooper lit­
igation holding that the class had demon­
strated a discriminatory pattern of promo­
tions out of grades 4 and 5. However, with 
respect to promotions out of grades 6 and 
above, the Court held:

There does not appear to be a 
pattern and practice pervasive 
enough for the court to order 
relief. 194a. (emphasis added)

The trial court did not, however, rule that
there had been no discrimination in grades 6
and above.

Shortly after receiving the trial 
court's Memorandum in Cooper, the Baxter 
plaintiffs sought to intervene in that 
action. Again, as it had done during 
trial, defendant's counsel opposed hearing 
the individual claims of the Baxter plain-



10-

tiffs in the context of the Cooper action. 
In its memorandum in opposition to the 
motion to intervene, the defendant assured 
the district court that denying interven­
tion would not preclude a separate subse­
quent action by the Baxter plaintiffs:

"There is no way there will be any 
prejudice to applicants in denying 
their motion [to intervene], since 
they can pursue any individual 
claims they have in separate pro­
ceedings." (Defendant's Response 
to Motion to Intervene, p. 4.)

The district court denied the Baxter plain­
tiffs' Motion to Intervene in EEOC v.Cooper 
on the very basis advanced by the defend­
ants, explaining:

I see no reason why, if any of the 
would be intervenors are actively 
interested in pursuing their 
claims, they cannot file a §1981 
suit next week, or why they could 
not file a claim with EEOC next
week ___ All motions for leave
to intervene are thus denied 
without prejudice to any underly­
ing rights the intervenors may 
have. 288a.



The Baxter plaintiffs promptly filed a 

separate proceeding, styled Baxter, et al. 
v. Federal Reserve Bank. Their Complaint 
alleged that each had been discriminated 
against in certain respects on an individual 
basis. The Baxter plaintiffs did not claim 
that the defendant had engaged in a pattern 
of discrimination against a class of black 
employees. The defendant moved to dismiss 
that new action, contending that the Cooper 
decision barred it as a matter of res 
judicata. The district court denied the 
motion to dismiss, but certified the ques­
tion to the court of appeals (291a), which 
reversed. 172a-85a. Upon consideration of 
the Baxter plaintiffs' Petition for Rehear­
ing and Suggestion for Rehearing En Banc, 
the Panel's decision was upheld by an 
equally divided (4-4) Court. 188a.



REASONS FOR GRANTING THE WRIT
I. Certiorari Should Be Granted To Resolve 

^LQnq the Courts of Appeals 
Regarding Whether A Finding of No Pervasive 
Pattern and Practice of Discrimination Bars ATI Individual Claims of DiscrimTnat ion 
BecFuse-of Res Judicata

The Fourth Circuit's decision that the 
rejection of a class-wide pattern and prac­
tice discrimination claim bars all indivi­
dual discrimination claims is squarely in 
conflict with what has hitherto been the 
uniform view of the other courts of appeals 
which have considered this issue. In 
Dickerson v. United States Steel, 582 F.2d 
827 (3d Cir. 1978), the Third Circuit
rejected the identical argument made by the 
Bank in this case:

The Company contends that, as a 
threshold matter, the district court's 
dismissal of a class-wide claim bars 
individual lawsuits under that claim by 
class member witnesses .... The class 
claims were not examined as a mere 
aggregation of individual claims, as 
the Company's argument suggests. 
Rather, the district court looked to



13

statistical evidence offered to support 
the existence of a practice or pattern 
of discrimination .... The district 
court's finding of an absence of 
class-wide discrimination is not 
necessarily inconsistent with a claim 
that discrete, isolated instances 
of discrimination occurred, for which 
the statis tical evidence of a pattern 
of discrimination may have been 
lacking; there may have been suffi­
cient evidence to establish a prima 
facie case of discrimination directed 
against specific employees. There­
fore, the court's decision.as_to
class-wide claims of discrimination
does not, as a matter of res judi-
cata, bar class members from assert-
ing individual claims of personal
discrimination.

582 F.2d at 830-31.
In Bogard v. Cook, 586 F.2d 399 (5th

Cir. 1978 ), the Fifth Circuit held that 
an individual prison inmate who had testi­
fied during an earlier class action regard­
ing prison conditions could still litigate 
the defendant's particular treatment of 
him, and was not barred by that earlier 
prison—wide class action. The court of 
appeals emphasized that the prior litiga-



14

tion had not specifically adjudicated
Bogard's personal claim, and expressed
doubts as to whether the district court
would have been willing to resolve such
individual questions in the context of
the class litigation. 586 F.2d at 409. In
Marshall v. Kirkland, 602 F.2d 1282 (8th
Cir. 1979), the plaintiffs in a class
action had sought individual relief for
only certain members of the class. The
Eighth Circuit held that relief for other
individuals could not be obtained on
appeal, but stressed

Our determination is "without prej­
udice" to the right of the other 
members of this class ... to initiate
a new action if they see fit.......
[C]lass members whose claims were 
not actually litigated should not 
be estopped by res judicata.

602 F.2d at 1282.
Recently, the Eleventh Circuit reached 

a result inherently inconsistent with 
the Fourth Circuit's holding. In Eastland



15

v. T.V.A., F. 2d (11th Cir. 1983),
the court affirmed the district court's 
determination that there was no cj.ass 
discrimination, but reversed its finding 
of no discrimination against certain class 
members. That decision conflicts squarely 
with the Fourth Circuit's holding that a 
finding of no class discrimination disposes 
of all individual claims as well.

The decision of the Fourth Circuit 
conflicts as well with the decisions of
this Court. Furnco Construction Co._
v. Waters, 438 U.S. 567 (1978) makes clear
that the absence of a general policy of 
discrimination "cannot immunize an employer 
for liability for specific acts of dis­
crimination." 438 U.S. at 579. It empha­
sized that the existence of a racially 
balanced workforce, while relevant to
a claim that a particular employment action 
was racially motivated, could not "conclu­



sively demonstrate" the absence of such a 
motive. 438 U.S. at 580 (emphasis added).
See also Connecticut v. Teal, ___U.S.
____, 73 L.Ed. 2d 130, 142 (1982). Con­
versely, the decisions of this Court in 
Teamsters v. United States, 431 U.S. 324 
(1977), and Franks v. Bowman Transportation 
Co♦, 424 U.S. 747 (1976), establish that 
a finding of class-wide discrimination does 
not constitute a final adjudication of the 
claims of individual class members. In such 
a case, the employer, while bound by the 
finding of a pattern of discrimination, 
still is entitled to an opportunity to prove 
that particular employment decisions were 
made free of discriminatory intent.

If a finding regarding the existence 
of a class-wide pattern and practice of 
discrimination is conclusive of all individ­
ual claims of class members, individual
class members would have no choice but to



intervene e_n masse prior to trial in order 
to protect those individual claims. Were 
that to occur, Rule 23 class actions would 
become an irresistible invitation for the 
joinder of claims which, by definition, 
are "so numerous that joinder ... is 
impracticable." Rule 23(a), Federal Rules 
of Civil Procedure. Such a rule would 
be equally burdensome on defendants, which 
would be required in response to proof of 
a class-wide pattern of discrimination 
to offer individualized defenses to the 
potential claims of each and every class 
member. The district courts would no 
longer be able to use the bifurcated trial 
procedure which was expressly sanctioned by 
Teamsters and Franks and which the lower
court have found eminently practical and 
expeditious; individual and class claims 
would have to be tried together.



18

This is not a case in which the indi­
vidual claims of the Baxter plaintiffs 
either were or even could have been adju­
dicated in the class action litigation. 
The district judge did not find there had 
never been any discrimination in any promo­
tions above pay grade 6, but only that there 
was not proof that such discrimination was 
sufficiently "pervasive" to warrant a 
class-wide remedy. 194a. No objection is 
made that the Baxter plaintiffs failed to 
seek resolution of their claims in the 
Cooper litigation; on the contrary, they 
tried to do precisely that. The decision of 
the Fourth Circuit both required the Baxter 
plaintiffs to pursue their claims in the 
class litigation, and upheld a district 
court order forbidding them from doing so. 
Administered in this way Rule 23 would serve 
as a snare for the diligent as well as the
unwary.



19

11 . Certiorari Should Be Granted To
Resolve_A_Cqnflict Among the Courts of 
Appeals Regarding the , U.se_of_Pro£osed 
Findings Prepared By Counsel for the Parties

Rule 52(a) requires the United States
District Courts, in all cases tried without
a jury, to "find the facts specially and
state separately their conclusions of law
thereon." Since the original promulgation
of this Rule, there has been a widespread
practice among district judges of asking for
and relying on proposed findings of fact and1/conclusions of law drafted by counsel. In 
some instances trial judges solicit such 
findings prior to deciding the case; in 
other instances they are sought only after 
the judge has indicated how he or she in­
ends to rule on the controversy at issue.

1/ See, e . g . , Saco-Lowell Shops v. 
Reynolds^ 141 F.2d 587, 589 (4th Cir. 
T944j“



20

The appellate courts are increasingly- 
divided over whether the use or adoption of 
such proposed findings is always or ever 
permissible, and those circuits which 
disapprove this practice are in disagreement 
as to how such findings should be dealt with 
on appeal. These divisions are especially 
sharp over the district court practice, fol­
lowed in this case, of asking the prevailing 
party to draft proposed findings consistent 
with the trial judge's announced decision in 
its favor.

The procedure utilized by the trial 
judge in this case is expressly sanctioned 
in the Sixth, Seventh and District of 
Columbia Circuits. The court of appeals 
for the District of Columbia most recently 
rejected an attack on this practice in 
Halkin v. Helms, 598 F.2d 1, 8 (D.C.Cir.



21

1978). That circuit court defended the 
practice at length in Schilling v. Schwitz- 
er-Cummins Co., 142 F.2d 82 ( D . C .  Cir. 
1944 ) :

Whatever may be the most commendable 
method of preparing findings -- 
whether by a judge alone, or with 
the assistance of his ... law clerk 
... or from a draft submitted by 
counsel -- may well depend upon 
the case, the judge, and facilities 
available to him. If inadequate 
findings result from improper reliance 
upon drafts prepared by counsel —  or 
from any other case —  it is the 
result and not the source that is 
objectionable. 142 F. 2d at 83 (foot­
notes omitted)

In Hill & Range Songs, Inc, v. Fred Rose 
Music, Inc., 570 F.2d 554 (6th Cir. 1978), 
the Sixth Circuit noted that it was "not 
unusual" for a court "to adopt verbatim" 
proposed findings of fact and conclusions 
of law, and held that so long as those 
findings and conclusions are supported 
by the record "it makes no real difference 
which counsel submitted them." 580 F. 2d 
at 558. See also O'Leary v. Liggett Drug



22

Co. , 150 F. 2d 656 , 667 (6th Cir. 1946 )
("findings of fact, prepared and submitted 
by the successful attorneys, [which] 
have been adopted by the trial court 
... are entitled to the same respect as if 
the judge, himself, had drafted them"). 
The Seventh Circuit upheld the practice in 
Schwerman Trucking Co. v. Gartland Steam­
ship Co . , 496 F.2d 466, 475 (8th Cir.
1974), explaining:

By having the prevailing party submit 
proposed findings of fact and conclu­
sions of law, the judge followed 
a practical and wise custom in which 
the prevailing party has "an obliga­
tion to a busy court to assist it 
in performance of its duty" under 
Rule 52(a).

See also Scheller-Globe Corp. v. Milsco 
Mfg. Co., 636 F.2d 177, 178 (7th Cir. 1980) 
("This circuit ... leaves the matter within 
the trial court's discretion and recognizes 
that the procedure can be of considerable 
assistance to a trial court ...."); Missi-



23

ssippi Valley Barge Line Co. v._Cooper
Terminal Co. , 217 F.2d 321, 323 (7th Cir.
1954) ("It was perfectly proper to ask 
counsel for the successful party to 
perform the task of drafting the findings

But this use of findings prepared by
the prevailing party, a procedure described
by the Seventh Circuit as of "considerable
assistance" to the trial courts, has been
specifically disapproved, although in

2/ 3/varying degrees, by the Third, Fifth,
4/ 5/Eighth, and Tenth circuits. On the other

2/ Schlensky v. Dorsey, 574 F.2d 131, 
148-49 (3d Cir. 1978); Roberts v. Ross, 344 
F.2d 747, 751-53 (3d Cir. 1965).
3/ Amstar Corporation v. Domino's Pizza, 
Inc. , 615 F. 2d 552, 258 (5th Cir. 1980).
£/ Askew v. United States, 680 F.2d 1206, 
1207-08 (8th Cir. 1982); Bradley v. Mary­
land Casualty Co. , 382 F.2d 415, 422-23 
(8th Cir. 1967).
5/ Kelson v. United States, 503 F.2d 1291, 
1294 (10th Cir. 1974).



24

hand, the 
do approve 
counsel if

6/ 7/Third and Eighth circuits
the use of findings drafted by
the trial court solicits and

considers such proposed findings from both
sides prior to its decision on the merits. 
In Roberts v. Ross, 344 F.2d 747, 752 ( 3d
Cir. 1965), the Third Circuit noted:

In most cases it will appear that 
many of the findings proposed by one 
or the other of the parties are 
fully supported by the evidence, 
are directed to material matters and 
may be adopted verbatim and it may 
even be that in some cases the find­
ings and conclusions proposed by a 
party will be so carefully and objec­
tively prepared that they may all 
properly be adopted by the trial judge 
without change.

But the verbatim adoption of proposed 
findings, sanctioned in appropriate cases 
by these two circuits, is "roundly con-

6/ Sc:h lensky v. Dorsey, 574 F .
148--49 ; Roberl: s v. Ross, 344 F .
752-53.
7/ Bradley v. Maryland Casualty Co.
F. 2d at 423.

382



25

demned" by the Second Circuit and approved
only in "highly technical" cases in the 

9/ _1_0/First and Ninth Circuits. The most
recent Tenth Circuit opinion on this sub­
ject states both that the verbatim adoption 
of proposed findings "may be acceptable 
under some circumstances" and that it "is
an abandonment of the duty imposed on trial

11/judges by Rule 52."
Consistent with this inter-circuit 

conflict, the Fourth Circuit's position on

8/

8/ International Controls Corp. v. Vesco, 
490 F. 2d 1334, 1341 n. 6 (2d Cir. 1974 ).
9/ In_
1009 (1st 
adopting 
should be 
when the 
technical

Re Las Colinas, Inc., 426 F.2d 1005,
("[T]he practice of 
findings verbatim 
extraordinary cases 

is of a highly 
expertise

Cir. 1970) 
proposed 
limited to 
subject matter
nature requiring

which the court does not possess.")
10/ Continuous Curve Contact Lenses v. 
Rynco Scientific Corp., 680 F.2d 605, 607 
(9th Cir. 1982).
11/ Ramey Construction Co. v. Apache 
Tribe, 616 F.2d 464, 466 (10th Cir. 1980)



26

the use of proposed findings has undergone 
a complete reversal in recent years. Saco- 
Lowell Shops v. Reynolds,. 141 F.2d 587, 589 
(4th Cir. 1944), held that findings of fact 
"are not weakened or discredited because 
made by the trial judge in the form re­
quested by counsel." In The Severance, 
152 F.2d 916 (4th Cir. 1945), the trial 
judge had requested the prevailing party to 
draft proposed findings of fact and conclu­
sions of law, and had adopted them "practi­
cally in toto"; the court of appeals held 
that " [t]his practice is not to be con­
demned." 152 F.2d at 918. Chi copee
M a n u£ a^ t̂]j r iLng__C o r  v_. a KL^C o . ,
288 F .2 d 719, 7 2 4-25 (4th Cir. 1961),
citing decisions in the Sixth and District 
of Columbia circuits, noted there was 
authority for "the adoption of such ... 
proposed findings and conclusions as the



27

judge may find to be proper," and condemned 
only the £x parte drafting of an opinion 
by counsel for one of the parties. In 
White v. Carolina Paperboard Corp., 564
F. 2d 1073 ( 4th Cir. 1977), the court of
appeals, although criticizing the content 
of particular findings adopted from the 
proposals of counsel, expressed no per se 
disapproval of the use of such findings, 
and merely concluded that" [o]n remand, we 
suggest the district court prepare its own 
opinion." 564 F.2d at 1082-83. (Emphasis 
added) In July, 1982, the Fourth Circuit 
"cautioned against" the adoption of find­
ings solicited by the trial judge from the 
prevailing party. Holsey v. Armour, 683 
F. 2d 864, 866 (4th Cir. 1982). Not until
the decision below did that "caution" 
evolve into "disapproval." 16a. Two months 
after the decision in the , instant case, 
the Fourth Circuit announced that it



28

had "previously condemned" this practice, 
inexplicably citing The Severance, which, 
as we noted above, had held precisely
the opposite. Cuthbertson v ._BjLĝ ejrjs
Brothers, Inc., (Slip opinion, March 9, 
1983, pp. 8-9).

Those courts of appeals which do 
disapprove the adoption of findings pre­
pared by counsel are themselves in dis­
agreement about how such findings should 
be treated on appeal. No court regards
that practice as reversible error. In

12/at least some circumstances the First and 
13/Tenth circuits will remand a case for 

additional findings drafted by the trial 
court itself. The Eighth circuit applies 
the same "not clearly erroneous" rule

12/ In re Las Colinas, Inc. , 426 F . 2d
1005, 1010 (1st Cir. 1970).
1 3/ Ramey Construction Co. v. Apache
Tribe , 616 F . 2d 464, 467-69 (10th Cir.
1980).



29

regardless whether the findings appealed 
from were drafted by counsel or the trial

1A/ . ,judge. Five circuits apply a special 
standard of review when considering find­
ings of fact adopted by the trial court 
from proposals submitted by counsel. The
First Circuit conducts a "most searching

15/
examination for error" in such cases.
In the Third Circuit findings drafted by
counsel are "looked at ... more narrowly

11/and given less weight on review." The
Fifth Circuit will "take into account"

17/
the origin of such findings, while the 
Ninth Circuit subjects them to "special

14/ Askew v. United States, 680 F.2d 1206, 
1208 (8th Cir. 1982).
15/ In re Las Colinas, Inc., 426 F.2d 
1005, 1010 (1st.Cir. 1970).
16/ Roberts v. Ross, 344 F.2d 747, 752 (3d 
Cir. 1965).
17/ Amstar Corporation v. Domino's Pizza 
Inc., 615 F. 2d 252, 258 (5th Cir. 1980).



30

scrutiny." The Fourth Circuit decision 
in the instant case refers to several of 
these apparently divergent standards with­
out indicating which was being adopted. 
23a-24a.

The standard of review actually ap­
plied by the court of appeals in this case 
was for all practical purposes a de novo 
determination of the controversy. The 
Fourth Circuit's 25,000 word opinion is 
more than three times as long as the trial 
judge's 38 page Findings of Fact and Con­
clusions of Law. Virtually every finding 
of fact made by the trial court on an issue 
controverted by the defendants was decided 
afresh, and in favor of defendants, on 
appeal. The appellate court's discussion 
of the minute details of the conflicting

11/

18/ Continuous Curve Contact Lenses, Inc. 
v. Rynco Scientific Corporation, 680 F.2d 
605, 607 (9th Cir. 1982).



31

evidence reflects, not an effort to 
determine whether the lower court's find­
ings were supported by substantial evi­
dence, but an effort, in the words of 
the Fourth Circuit, to determine what 
result would "reflect the truth and the 
right of the case." 24a.

The Fourth Circuit's treatment of ‘ 
petitioner Cooper's claim of discrimination 
in promotion is typical of its approach. 
There was conflicting testimony regarding 
whether the promotion at issue in her 
case was to the position of "utility 
supervisor" or "reader sorter supervisor." 
The trial court, expressly relying on the 
demeanor of the witnesses, held that the 
position was that of a utility supervisor. 
220a, 266a-267a. The court of appeals,
after reviewing the same evidence, reached 
the opposite conclusion. 155a-158a. The 
district court found that Cooper was 
qualified to supervise operation of the



32

reader-sorter machine. 266a. The court of 
appeals found she was not. 161a. The 
district court concluded that Cooper was 
more qualified for the promotion than the 
white employee who received it, 220a; 
the court of appeals concluded that 
she was not. 166a. The district court 
held that the reasons given by defendant 
for promoting a less experienced white 
in place of Cooper were "pretextual," 
noting that the defendant had ignored its 
own procedures in refusing to even consider 
Cooper for the promotion, 265a-66a; the
court of appeals accepted without question 
the defendant's account of the "qualifica­
tions" for the job at issue. 163a.

The court of appeal's rejection of 
the claim of class wide discrimination 
demonstrates the dangers of such de novo 
appellate review. Where, as here, there
is a complex trial involving technical



33

issues, and thousands of pages of exhibits 
and documents, an appellate court which 
attempts to decide afresh all the questions 
at issue is virtually certain to misunder­
stand or overlook relevant evidence. The 
trial court in this case found there was a 
pattern and practice of discrimination in 
promoting employees from grades 4 and 5, 
noting that blacks remained in these low 
paid entry level positions longer than did 
whites. Between 1966 and 1977, for exam­
ple, white employees in grade 4 received 
promotions after an average of 652 days, 
while black employees waited an average of 
982 days. 241a. The court of appeals 
reversed on the assumption that these 
differences were the result of black 
employees being assigned to service 
and cafeteria jobs rather than to clerical 
positions. 105a-106a.



34

The court of appeals believed "it was
reasonable to expect" a substantial
portion of black hirees would be assigned
to service and cafeteria work. 105a.
But the district court found that over a
ten year period only 3 blacks expressing
no job preference had been assigned to
cleaning jobs. 243a. The court of appeals
felt it was "to be expected" that there
would be few promotion opportunities
in service and cafeteria jobs. 106a. But
the defendant only claimed that 13 of the
68 blacks in those departments had no

11/promotional opportunities. The court of 
appeals rejected an analysis of promotion 
rates because it did not include employees 
who had resigned or been fired after 
receiving a promotion, 57a-62a; but in 
fact the exclusion of those employees

19/ Appendix, No. 81-1536, 4th Cir., p. 
1117.



35

simply had no effect on the pattern of
20/disparities revealed by that analysis.

The Fourth Circuit's elaborate discus­
sion of statistical methodology reflects a 
similar approach. The defendants on 
appeal criticized plaintiffs' expert for 
using a "one-tail" rather than a "two-tail" 
analysis of certain statistics. The Fourth 
Circuit noted that "after all the technical 
statistical jargon like 'one tail' and 
'two-tail' ... were placed before the 
judge, it was his job to resolve the 
issues." 243a, n. 16. And then, having 
noted that this was a question for the 
trial court, the court of appeals proceeded 
to hold that the use of a "one-tail" test 
was improper. 83a-110a. Similarly, the 
court of appeals insisted that the proper

20/ Petition for Rehearing and Suggestion 
for Rehearing En Banc, No. 81-1536, 4th 
Cir., pp. 9-12.



36

manner for calculating standard deviations 
was the binomial distribution formula, 
criticizing the trial judge for having 
"accepted without question" a calculation 
using the hypergeometric distribution 
formula. 62a. In fact, however, the 
trial judge had never questioned use of 
the hypergeometric method because the 
defendants had never objected to it at 
trial, or raised the issue on appeal, 
circumstances that would ordinarily 
have precluded an appellate court from 
even considering the issue.

As the very length and detail of 
the Fourth Circuit opinion make clear, 
the widespread differences regarding 
the use of findings prepared by counsel 
raises equally serious issues regarding the 
roles of the appellate courts. The inde­
pendent factfinding apparent on the face of 
the Fourth Circuit's opinion would not 
have occurred in the three circuits which



37

approve use of such findings, or in the 
Eighth Circuit which applies to them the 
usual "not clearly erroneous" rule.

This division among the lower courts 
stems in part from this Court's past 
ambivalent attitude towards findings 
prepared by counsel. United States v. 
Crescent Amusement Co., 323 U.S. 173
(1945), denounced the verbatim adoption of 
proposed findings as "leav[ing] much to be 
desired," and yet insisted "they are 
nonetheless the findings of the District 
Court." 323 U.S. at 185. United States v. 
El Paso Natural Gas Co., 376 U.S. 651
(1964) complained that such findings were 
"not the product of the workings of the 
district judge's mind," and nonetheless 
held that they were "formally his" and thus 
"not to be rejected out of hand." 376 U.S. 
at 656. The confusion and division among 
and within the courts of appeals will 
necessarily continue until this Court



38

resolves the conflicting implications of 
Crescent Amusement and El Paso Natural Gas 
by determining when if ever the adoption 
of findings prepared by counsel is imper­
missible, and by specifying what if any­
thing the appellate courts are to do when 
that occurs.

III. The Decision of the Court of Appeals 
is Inconsistent with Pullman-Standard Co. 
v. Swint, 456 U.S. 273 (1982).

The briefs in the instant case were 
filed in the Court of Appeals in February 
and March, 1982. In April of 1982,
this Court in Pullman-Standard Co. v .
Swint, 456 U.S. 273 (1982), rejected the
Fifth Circuit practice of refusing to
apply to findings of "ultimate fact" the
"not clearly erroneous" standard of Rule 
52(a), Federal Rules of Civil Procedure.

In January, 1983, the court of ap­
peals, apparently unaware of the decision 
in Pullman-Standard, premised its reversal



39

of the district court's finding of dis­
crimination on the very "ultimate fact" 
doctrine that had been disapproved by this 
Court only nine months earlier. The 
linchpin of the Fourth Circuit's analysis 
was its assertion that

the District Court['s] ... statement 
that "the defendant [had] engaged in 
a pattern and practice of discrimina­
tion ..." [is] a statement of ultim­
ate fact ... not a finding of fact 
reviewable under the "clearly erro­
neous" rule ... . (15a)(emphasis 
added).

This holding is virtually identical to the 
Fifth Circuit distinction, condemned in

' that "a finding of 
discrimination ... is a finding of ultimate 
fact." 456 U.S. at 286. The decision 
below expressly relied on a pre-Pullman- 
Standard Fifth Circuit opinion applying the 
discredited distinction between ultimate
and subsidiary findings of fact 1 5a.



40

In our petition for rehearing below we 
repeatedly referred to this Court's deci-
s i on in PulIman -Standard 2J./

f not ing
that "the panel's reference to 1' ultimate
fact[s] ' is the very concept on which the
Supreme Court reversed the Fifth Circuit 

22/ The Fourth Circuit's refusal 
to comply with the mandate of Pullman-Stan­
dard is neither explicable nor excusable, 
and warrants summary reversal by this 
Court.

21 / Petition for Rehearing and Suggestion 
for Rehearing En Banc, pp. 3, 10, 14, 21, 
24, 26-28.
22/ Ibid, at 27.



41

For 
ce rt ior, 
j udgment

CONCLUSION

the above reasons a writ of 
iri should issue to review the 
and opinion of the Fourth Circuit.

Respectfully submitted,

J. LEVONNE CHAMBERS 
JOHN NOCKLEBY

Chambers, Ferguson, Watt, 
Wallas, Adkins & Fuller, P.A. Suite 730
East S. Independence 

Boulevard
Charlotte, North Carolina 28202

J A C K  G R E E N B E R G  0. PETER SHERWOOD 
CHARLES STEPHEN RALSTON 
ERIC SCHNAPPER 

Suite 2030
10 Columbus Circle 
New York, New York 10019 (212) 586-8397

Counsel for Petitioners
Counsel of Record



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