League of United Latin American Citizens (LULAC), No. #4434 v. Mattox Brief on Behalf of Amici Curiae
Public Court Documents
October 15, 1991
Cite this item
-
Brief Collection, LDF Court Filings. League of United Latin American Citizens (LULAC), No. #4434 v. Mattox Brief on Behalf of Amici Curiae, 1991. 15874b30-bb9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/8d25ae2a-ec49-440f-bf69-708f0a0ed7b2/league-of-united-latin-american-citizens-lulac-no-4434-v-mattox-brief-on-behalf-of-amici-curiae. Accessed September 13, 2025.
Copied!
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 90-8014
LEAGUE OF UNITED LATIN AMERICAN
CITIZENS COUNCIL NO. 4434,
P la in tif fs -A p p e lle e s ,
an d
JESSE OLIVER, e t a l . ,
In te rv e n in g
P la in tif fs -A p p e lle e s ,
v e rs u s
WILLIAM P . CLEMENTS, E T C ., e t a l . ,
D e fe n d a n ts ,
JIM MATTOX, ET A L .,
D e fe n d a n ts -A p p e lle e s ,
A p p e llan ts
v e rs u s
JUDGE F . HAROLD ENTZ, E T C .,
JUDGE SHAROLYN WOOD, E T C .,
a n d GEORGE S . BAYOUD, J R . , E T C .,
D e fe n d a n ts -A p p e lla n ts ,
4
an d
TOM RICKHOFF, SUSAN D. REED, JOHN
J . SPECIA, J R . , SID L . HARLE, SHARON
MACRAE an d MICHAEL P . PEDAN, B ex a r
C o u n ty , T ex as S ta te D is tr ic t J u d g e s ,
A p p e lla n ts .
A ppeals From th e U nited S ta te s D is tr ic t C o u rt
F o r th e W estern D is tr ic t of T ex as
B rie f on B ehalf of Amici C uriae th e S ta te of A labam a,
th e A tto rn e y G en era l, th e C hief Ju s tic e o f th e Alabam a
S uprem e C o u rt, an d th e S e c re ta ry of S ta te
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 90-8014
LEAGUE OF UNITED LATIN AMERICAN
CITIZENS COUNCIL NO. 4434,
P la in tif fs -A p p e lle e s ,
an d
JESSE OLIVER, e t a l . ,
In te rv e n in g
P la in tif fs -A p p e lle e s ,
v e rs u s
WILLIAM P . CLEMENTS, E T C ., e t a l . ,
D e fe n d a n ts ,
JIM MATTOX, ET A L .,
D e fe n d a n ts -A p p e lle e s ,
A p p e llan ts
v e rs u s
JUDGE F . HAROLD ENTZ, E T C .,
JUDGE SHAROLYN WOOD, E T C .,
a n d GEORGE S . BAYOUD, J R . , E T C .,
D e fe n d a n ts -A p p e lla n ts ,
an d
TOM RICKHOFF, SUSAN D. REED, JOHN
J . SPECIA , J R . , SID L . HARLE, SHARON
MACRAE an d MICHAEL P . PEDAN, B ex a r
C o u n ty , T ex as S ta te D is tr ic t J u d g e s ,
A p p e lla n ts .
A ppeals From th e U n ited S ta te s D is tr ic t C o u rt
For th e W estern D is tr ic t of T ex as
B rie f on B ehalf of Amici C u riae th e S ta te o f A labam a,
th e A tto rn e y G en era l, th e C hief Ju s tic e of th e A labam a
Suprem e C o u rt, an d th e S e c re ta ry of S ta te
TABLE OF CONTENTS
PAGE
I . M inority I n te r e s t in M inority R ep re se n ta tio n
II . S ta te I n te r e s ts ....................................................
I I I . C onclusion ...............................................................
i
TABLE OF AUTHORITIES
CASES PAGE
T h o rn b u rg v . G in g le s ,
479 U .S . 30, 45 (1986)
(q u o tin g S . R ep . No. 97-417 a t 29 (1982))
OTHER AUTHORITIES
T he T riu m p h of T okenism : The V oting R ig h ts A ct
a n d th e T h e o ry of B lack E lectoral S u c c e s s ,
89 M ichigan Law Review 1077, 1093 (M arch 1991) . . . .
Maps an d M isread in g s : T he Role of G eograph ic C om pactness
in R acial Vote D ilu tion L itig a tio n ,
24 H a rv a rd C ivil R ig h ts - C ivil L ib e rtie s Law R eview 173,
218 (1989) .............................................................................................
ii
BRIEF OF THE STATE OF ALABAMA AS AMICUS CURIAE
T h is C o u rt is well aw are th a t v o tin g r ig h ts c ases c o n c e rn in g th e e lec tio n of
s ta te ju d g e s sim ilar to th a t w hich i t now co n sid e rs on rem an d from th e S uprem e C o u rt
a re c u r r e n t ly p e n d in g in fe d e ra l c o u rt in A labam a, as well as in s e v e ra l o th e r s ta te s .
T h e d ec is io n of th e F if th C ircu it in th is case will s u b s ta n tia l ly in flu en c e th e
d isp o s itio n of th e se c a se s . We w rite , th e re fo re , to su p p lem en t th e b r ie fs of
d e fe n d a n ts w ith s e v e ra l p o in ts th a t we th in k b e a r f u r th e r em p h asis .
T he C o u r t 's q u e s tio n s fo r co u n se l, c irc u la te d A u g u s t 6, 1991, s u g g e s t th a t
i t is s t ru g g l in g w ith th e q u estio n of how to b u ild th e p r o p e r a n a ly tic a l fram ew ork in
w hich to c o n s id e r a h o s t of fa c to rs — fo r exam ple, m in o rity in te r e s t s , s ta te
i n te r e s t s , ra c ia l b loc v o tin g , o th e r tra d itio n a l Zimmer f a c to r s , e tc . T h is b r ie f does
n o t a tte m p t to re sp o n d to th o se q u e s tio n s o r exam ine p o ss ib le models fo r a n a ly s is in
a co m p reh en siv e w ay . R a th e r , Alabam a assum es th e n e c e s s i ty fo r some k in d of
b a la n c in g o r to ta li ty of th e c ircu m stan ces in q u iry in w hich " 'th e r e is no re q u ire m e n t
th a t a n y p a r t ic u la r num b er of fa c to rs be p ro v e d , o r th a t a m ajo rity of them p o in t one
w ay o r th e o t h e r , T h o rn b u rg v . G in g le s , 479 U .S . 30, 45 (1986) (q u o tin g S . R e p .
No. 97-417 a t 29 (1 9 8 2 )), an d in w hich " o th e r fa c to rs [ th a n th o se en u m era te d in th e
S en a te R e p o rt] may also be re le v a n t an d may be c o n s id e re d ." T h o r n b u rg , 478 U .S .
a t 45. A labam a su b m its th a t in th e c o n tex t of ju d ic ia l e le c tio n s , th e w e ig h t an d
re le v a n c e g iv e n to c e r ta in fa c to rs in w h a tev e r a n a ly s is th e C o u rt a d o p ts sh o u ld
d if fe r from th a t a ffo rd e d in th e tra d itio n a l S ection 2 case in s e v e ra l w a y s .
I .
M inority In te r e s t in M inority R e p re se n ta tio n
T he C o u r t’s f i r s t q u es tio n fo r counse l im plic itly re c o g n iz e s th a t a sse ssm e n t
1
of a S ection 2 claim n e c e s sa r ily in vo lves some b a lan c in g of m in o rity a n d s ta te
in te r e s t s ■which, u n d e r v a ry in g fa c tu a l c irc u m stan c es , may h av e d if fe r in g w eig h t
a n d em p h asis . In th e ju d ic ia l c o n te x t , th e m in o rity ’s in te r e s t in eq u a l p a r tic ip a tio n
a n d in flu en ce in th e e lec to ra l p ro c e ss h as b een e ffe c tiv e ly d e fin ed - - a t le a s t s in ce
th e T h o rn b u rg decis io n in 1986 - - as an in te r e s t in m in o rity e lec to ra l s u c c e s s . See
T h o r n b u r g , 478 U .S . a t 92-93 (O 'C o n n o r, J . , c o n c u r r in g ) ("E lec to ra l su c c e ss has
now e m e rg e d , u n d e r th e C o u rt 's s ta n d a r d , as th e lin ch p in of vo te d ilu tio n c la im s." ) ;
see a lso Lani G u in ie r , T he T rium ph of Tokenism : T he V oting R ig h ts Ac t an d th e
T h e o ry of B lack E lec to ra l S u c c e s s , 89 M ichigan Law Review 1077, 1093 (M arch 1991)
("E sp ec ia lly since 1986, th e c o u r ts h ave m easured b lack po litica l re p re s e n ta t io n an d
p a r tic ip a tio n solely b y re fe re n c e to th e num ber an d c o n s is te n t e lec tio n of b lack
c a n d id a te s ." ) . T h is is p e rh a p s th e p rim ary re a so n th a t s in g le -m em b er d is t r ic t in g
h a s en joyed p r id e of p lace as a S ection 2 rem edy : s u b - d is t r ic t s g u a ra n te e th a t a
com pact an d cohesive m inority g ro u p can e lec t an o fficeh o ld e r of i ts ow n, a n d th e
concom itan t sac rif ice of in flu en ce b y th a t g ro u p on o th e r c an d id ac ies in o th e r s in g le
m em ber d is t r ic ts h a s b e en th o u g h t to be w o rth th e g a in in d ire c t r e p re s e n ta t io n .
T h is t r a d e -o f f of in flu en ce m ust be reexam ined in ju d ic ia l e lec tio n s b e ca u se of
s t r u c tu r a l d iffe re n c e s in th e o ffices to be filled . T he m in o rity 's in te r e s t in b lack
e lec to ra l su c c e ss is log ically w eakened in th is c o n tex t in two w ay s. F i r s t , no g ro u p ,
m ino rity o r m ajo rity , h as a s t ro n g claim to be re p re s e n te d b y i ts own ju d g e s , who -
- as h a s b e en e x h a u s tiv e ly d is c u s se d - - do no t sp ea k fo r a n d may n o t "b e lo n g to
p a r t ic u la r g ro u p s c o n s is te n tly w ith th e d e fin itio n of th e i r o ffice s . To th e e x te n t th a t
th e re is a p a r tic ip a tio n a l v a lue to b e s e rv e d b y sp ec ifica lly b la ck e lec to ra l su c c e ss ,
i t is n o t th e p o w erfu l v a lue of in te r e s t re p re se n ta tio n fo r v o te r s , b u t th e re la tiv e ly
w eak e r sym bolic o r ex em p lary v a lu e fo r th e b lack com m unity of d iv e r s i ty on th e
b e n c h - - som etim es d isc u sse d in te rm s of ju d g e s ' a b ility to b e "ro le m odels" o r to
2
m ake li t ig a n ts fee l more com fortab le o r s e c u re . T he l a t t e r v a lu e is n o t a t all a
n e g lig ib le o n e , b u t n e i th e r is it one u n iq u e ly im p o rtan t to b la c k s o r c lea rly p ro te c te d
as a m ajor v o tin g c o n ce rn b y Section 2. To p u t th is p o in t a n o th e r w a y , in th e ju d ic ia l
c o n te x t , th e in te r e s t of th e m inority may be fa r more c lo se ly a lig n ed w ith th a t of th e
m ajo rity - - in th is c a se , e v e ry c itiz e n 's in te r e s t in ju d ic ia l im p a r tia li ty , fa irn e s s an d
in d e p e n d e n c e — th a n is so in e lec to ra l s e tt in g s in w hich th e m ino rity h a s a
d is tin c tiv e claim to re p re se n ta tio n of i ts own u n iq u e c o n c e rn s a g a in s t th o se of th e
la r g e r g ro u p .
S eco n d , th e m in o rity 's in te r e s t in e lec tion of i ts own c a n d id a te s , a s opposed
to th e a l te rn a t iv e of in flu en ce on th e b ro a d e r ra n g e of o fficia ls in a g iv en
ju r is d ic t io n , is w eakened b y th e s t r u c tu r e of decision m aking in th e ju d ic ia l o ffice .
W here b la ck v o te rs can p ro p e l b lack c a n d id a te s onto co lleg ial bo d ies su c h as c ity
co uncils o r c o u n ty com m issions, th e y may ach iev e d ire c t a n d c o n s is te n t
re p re s e n ta t io n of th e i r in te re s ts in all d ec isions m ade b y th a t b o d y an d rea lize th e
ch an ce to b e c e n tra l to leg is la tiv e d e lib e ra tio n an d c o a litio n -b u ild in g on each is su e
c o n s id e re d . As one v o tin g r ig h ts a d v o ca te h as p u t i t :
I t is c ritic a l to th is p ro c e s s . . . th a t a n a d v o ca te of th e
d is tin c tiv e m inority p e rs p e c tiv e be p r e s e n t to a d v an c e its
v iew s. In th is s e n s e , a s t ro n g commitment b y a few
p e rs o n s to a d d re s s th e se co n ce rn s is p re fe ra b le to a
w eak e r commitment b y m any p e r s o n s .
Pam ela S . K a rla n , Mans an d M isread in g s: T he Role of G eo g rap h ic C om pactness in
R acial V ote D ilu tion L itig a tio n , 24 H a rv a rd Civil R ig h ts - C ivil L ib e rtie s Law Review
173, 218 (1989).
T h e s t r u c tu r e of th e office of t r ia l ju d g e s , h o w e v er, fo rec lo ses th is
o p p o r tu n i ty fo r d ire c t p a r tic ip a tio n b y th e m in o rity 's r e p re s e n ta t iv e s in all
d e lib e ra tio n s a n d d ec isions of a g o v e rn in g b o d y . B ecau se ju d ic ia l d ec is io n s a re n o t
3
m ade co llec tiv e ly , m ino rity ju d g e s will decide only th e i r own c a s e s , a n d no o th e r s .
T he o d d s a re low th a t m inority v o te rs will a p p e a r e x c lu s iv e ly - - o r e v en most
f r e q u e n t ly - - b e fo re m inority ju d g e s . T he in te r e s t in b la ck e lec to ra l su c c e ss in th is
c o n te x t i s , th u s , d im in ished ; su c h su c c e ss b r in g s a g re a t deal le ss in te rm s of
p a r tic ip a tio n in u ltim ate d ec is io n -m ak in g to m inorities th a n w ould be th e case in n o n
ju d ic ia l e lec tio n s , w hile in flu en ce on th e e lec tion of n o n -m in o rity c a n d id a te s is
concom itan tly more im p o rtan t.
T h e re is an ad d itio n a l lim itation on b lack e lec to ra l su c c e ss im posed b y th e
u n iq u e s t r u c tu r e of ju d ic ia l office th a t may no t so m uch d im in ish th e w e ig h t of th e
m in o rity in te r e s t in su c h su cc e ss a s a l te r a sse ssm e n t of th a t in te r e s t 's im pairm en t:
q u a lific a tio n s fo r ju d ic ia l o ffice . Ju d g e s in most s ta te s , of c o u rs e , m ust b e la w y ers ;
in some s ta te s , su ch as G eorg ia , law y ers m ust a c tu a lly b e m em bers of th e b a r fo r a
n u m b er of y e a r s b e fo re th e y qu a lify fo r e lec tion as ju d g e s . See G eorg ia C o n s t . , A r t .
V I, S ec . V II, P a r . 11(a) (se v e n y e a r b a r m em bership re q u ire m e n t fo r s u p e r io r
ju d g e s ) . In c o n tr a s t , th e legal q u a lifica tio n s fo r in d iv id u a ls to ho ld n o n -ju d ic ia l
o ffices ty p ica lly inv o lv e no more th a n a g e , re s id e n c y a n d c itiz en sh ip re q u ire m e n ts .
When b la ck s a re n o t r e p re s e n te d in th e b a r in n u m b ers com m ensura te w ith th e i r
p re s e n c e in th e g e n e ra l p o p u la tio n - - as in A labam a, a s well as T ex as th e re is
o b v io u sly an in h e re n t lim itation on th e o p p o rtu n ity fo r b la ck e lec to ra l su c c e ss in
ju d ic ia l ra c e s n o t p r e s e n t in n o n -ju d ic ia l e lec tio n s . T h u s , th e d e g re e of th e
m in o r ity 's in te r e s t in th e e lec tio n of m inority c a n d id a te s is b o u n d e d b y th e
a v a ilab ility of b lack law yers e lig ib le fo r su ch o ff ic e s . 1
1 Alabam a is n o t s u g g e s tin g th a t th is can d id a te pool is a c tu a lly e x h a u s te d
a lth o u g h in some co u n tie s th is is th e case . H ow ever, th e r e is no re a so n to su p p o se
th a t all b lack law y ers — o r more b la ck th a n w hite law y ers - - w an t to be ju d g e s o r a re
v iab le c an d id a te s (a b s e n t a n y ra c ia l c o n s id e ra tio n s ) fo r th e office of ju d g e . T h u s ,
th e lim itation is a re a l one.
4
T he th re e w ay s2 c ited above in w hich th e tra d itio n a l m ino rity in te r e s t in b lack
e lec to ra l su c c e ss is d im inished in th e ju d ic ia l c o n te x t h av e c e r ta in p ra c tic a l
c o n se q u e n ce s fo r an a sse ssm en t of wTh e th e r th e to ta l i ty of th e c ircu m stan ces
e s ta b lis h e s a v io la tion of Section 2 in th is c a se . T he T h o rn b u rg C o u rt h as id en tif ie d
" th e m ost im p o rtan t S enate R ep o rt fa c to rs b e a r in g on §2 ch a llen g es to m ulti-m em ber
d is t r ic ts " as " 'th e e x te n t to w hich m ino rity g ro u p m em bers h av e b een e lec ted to
p u b lic office in th e ju r isd ic tio n ' a n d th e 'e x te n t to w hich v o tin g in th e e lec tio n s of
th e . . . p o litica l su b d iv is io n is ra c ia lly p o la r iz e d . '" T h o r n b u r g , 478 U .S . a t 48 n . 15
(q u o tin g S . R ep . 28 -29). C lea rly , p ro o f th a t b la ck s are . n o t r e p re s e n te d on th e
b e n c h in p ro p o r tio n to th e ir nu m b ers in th e p o p u la tio n c a r r ie s le ss w e ig h t h e re th a n
w ould sim ilar p ro o f- in a n o n -ju d ic ia l c o n te x t . R e p re se n ta tio n is n o t a goal of th e
ju d ic ia ry , a n d th e m inority in te r e s t in b lack re p re s e n ta t io n i s , a t b e s t , an
a t te n u a te d in te r e s t in simple d iv e r s i ty , no t th e s t r o n g e r , m ore tra d it io n a l claim to
e lec t o ff ic e -h o ld e rs to ac t as re sp o n s iv e e a rs an d d is tin c tiv e vo ices fo r b la ck s . T h is
is p a r t ic u la r ly t ru e w hen no collegial dec is io n -m ak in g b o d y e x is ts to p ro v id e b lack
ju d g e s an o p p o r tu n ity fo r d ire c t in flu en ce o v e r e v e ry ju d ic ia l decis io n - - w h e re , in
f a c t , b lack p o litica l in flu en ce on w hite ju d g e s , who will lik e ly make th e m ajo rity of
th e d ec is io n s a llocated to ju d g e s in a g iv en ju r is d ic t io n , an d do so w ith o u t
c o n su lta tio n , may b e m uch more im p o rtan t to o v era ll b la ck in flu en ce an d p a r tic ip a tio n
th e n m in o rity e lec to ra l su c c e ss .
E v idence of b lack re p re s e n ta t io n on th e b e n c h in n u m b ers low er th a n b lack
p re s e n c e in th e po p u la tio n is also a g re a t deal le ss m ean ing fu l in th e ju d ic ia l th a n in
th e le g is la tiv e c o n te x t . U nless b lack can d id a te s a re - - so lely b e ca u se of th e i r ra c e
- to b e g u a ra n te e d b y Section 2 an ex p o n en tia lly g r e a te r o p p o r tu n i ty th a n w h ites to
2 T he lack of a o n e -p e rso n o n e -v o te re q u ire m e n t in ju d ic ia l e lec tio n s also
im poses a lim it on th e m inority in te r e s t in eq u a l p a r tic ip a tio n b e c a u se eq u a lly
w e ig h ted v o te s a re n o t r e q u ire d .
5
s e rv e as e lec ted ju d g e s , th e n th e only fa ir m easure of b la ck p re s e n c e on th e b en ch
is b lack p re s e n c e in th e pool of q ua lified can d id a te s fo r th e b e n c h . A cco rd in g ly ,
p ro o f th a t fo r exam ple, in H a rris C o u n ty , T e x a s , b lack ju d g e s r e p r e s e n t 5 .1 p e rc e n t
of th e b e n c h , w hile e lig ib le b lack law yers make up only 3 .8 p e rc e n t of th e b a r , o u g h t
to m ake a s u b s ta n tia l d iffe ren c e in th e C o u rt 's a s se ssm e n t of b la ck e lec to ra l
s u c c e s s .3
R eview of th e second im p o rtan t S enate fa c to r id e n tif ie d b y th e T h o rn b u rg
C o u rt , ra c ia l p o la r iz a tio n , sho u ld also d iffe r som ew hat in th e ju d ic ia l c o n tex t fo r
re a so n s o u tlin ed ab o v e . P la in tif fs ' e x p e r ts ro u tin e ly fo cus e x c lu s iv e ly on po la riza tio n
in c o n te s ts in w hich b la ck s ru n a g a in s t w h ite s . Y et — u n iq u e ly in ju d ic ia l e lec tio n s -
- th e e x te n t to w hich m inority v o te rs a re in s tru m e n ta l in ch o o sin g th o se who will
m ake m ost ju d ic ia l d ec is io n s tu r n s on m inority in flu en ce on th e e lec tio n of m ajority
c a n d id a te s a b s e n t collegial dec is io n -m ak in g . T h u s , w h ite s u p p o r t fo r w hite
c an d id a te s who a re a lso com m itted to be re sp o n s iv e to th e b la ck e le c to ra te is h ig h ly
re le v a n t in fo rm ation fo r a fe d e ra l c o u r t c h a rg ed w ith a s s e s s in g th e legal s ig n ifican ce
of rac ia l b loc v o tin g .
II .
S ta te In te re s ts
While th e m in o rity 's in te r e s t in e lec tin g b lack ju d g e s is s u b s ta n tia l ly le ss th a n
i ts in te r e s t in e le c tin g more b la ck re p re s e n ta t iv e s in o th e r c o n te x ts , th e s ta te
in te r e s t s in m ain ta in in g e x is t in g sy stem s fo r e lec tin g ju d g e s a re p a r t ic u la r ly s t ro n g .
A lth o u g h th e s e in te r e s t s a re ab ly d isc u sse d in o th e r b r i e f s , some am plifica tion h e re
3 In A labam a, some 3 .3 p e rc e n t of th e in - s ta te b a r is b la c k , b u t 4 .6 p e rc e n t of
e lec ted t r ia l ju d g e s a re b la ck .
6
may b e h e lp fu l. In d isp e n sa b le to an y an a ly s is of a s ta t e 's in te r e s t in p e rp e tu a t in g
i ts ju d ic ia l e lec tio n sy stem is an a sse ssm e n t of th e av a ilab le a l t e r n a t iv e s . C hoices a re
n o t m ade in th e a b s t r a c t , an d a n y g iv en system - - r a th e r th a n b e in g p e r fe c t - - may
sim ply be th e le s s e r of two o r th re e e v ils , o r th e b e s t b a lan ce of a n u m b er of
com peting in te r e s t s th a t a p p e a rs to b e av a ilab le .
A t- la rg e m ulti-m em ber sy stem s fo r e lec tin g tr ia l ju d g e s re f le c t su c h a b a la n c e .
T he a l te rn a t iv e s - - s ing le -m em ber s u b d is t r ic ts , o r novel sy stem s su c h a s cum ulative
o r lim ited v o tin g - - do p e rh a p s o ffe r to en h an ce d iv e r s i ty on th e b e n c h b y a d d in g
m ore m in o rity ju d g e s . We n o te , h o w ev er, th a t th is is a ll th o se sy stem s o ffe r to th e
ju d ic ia ry . W hereas s in g le -m em ber d is t r ic t s , an d ev en se m i-p ro p o rtio n a l sy stem s like
cum ulative o r lim ited v o tin g , h ave b e en ad v o ca ted - - a n d som etim es em ployed - - as
v iab le a l te rn a t iv e s com m anding p o p u la r su p p o r t fo r u se in c ity council o r leg is la tiv e
e le c tio n s , th e se h av e n e v e r b een em ployed (o u ts id e th e c o n te x t of a la w su it, as in
M ississipp i) to e lec t ju d g e s . In d e p e n d e n tly of th e se l a t t e r d a y v o te d ilu tio n c a se s ,
th e re is no c o n s ti tu e n c y o r t ra c k re c o rd w h a tso ev e r fo r u se of su c h sy s te m s in th e
ju d ic ia l c o n te x t — a n d w ith good re a so n .
T he choice to e lec t t r ia l ju d g e s o ffe rs an im p o rtan t m easu re of a cco u n ta b ility
a n d leg itim acy to a s ta te ju d ic ia ry . B u t a p r in c ip a l ev il o f su c h a choice is th e th re a t
of p o litic iza tio n of th e ju d ic ia l fu n c tio n - - th e p o s s ib il ity of a c o n s ti tu e n c y -b a se d
sy stem of ju s t ic e , o r th e a p p ea ra n ce th e re o f , in w hich ju d g e s a re p r e s s u r e d to p lay
to th e g a lle ry fo r v o te s , an d to sac rif ice fa irn e s s a n d im p a rtia lity to th e dem ands of
th e in te r e s t s th a t p u t them , an d k eep them , in p o w er. E lec tions a lso th r e a te n to
e ro d e th e com petence an d q u a lity of th e ju d ic ia ry ; a good law y er is u n lik e ly to leave
an e s ta b lish e d p ra c tic e fo r a ju d g e sh ip w here e lec tio n s a re a lw ay s , a n d o f te n ,
c o n te s te d a n d s in g le - is su e p o litic s may eas ily p re v a il .
A s ta te o b v io u sly h as a com pelling in te r e s t in c h e c k in g a n d c u rb in g th e se le ss
7
wholesom e te n d en c ie s of e lec to ra l sy s te m s . I ts tools in c lu d e su c h th in g s as p ro v is io n
fo r lo n g e r th a n a v e ra g e te rm s fo r ju d g e s , s t r ic t can o n s of ju d ic ia l c o n d u c t,
a t t r a c t iv e re tire m e n t p lan s - - a n d , n o t le a s t , e lec tion sy stem s th a t th em selv es
r e d u c e p o litic iza tio n an d prom ote th e re te n tio n of com peten t ju d g e s . A t- la rg e
e le c tio n s , fo r exam ple, m itigate s tro n g ly a g a in s t th e te n d e n c y of p o p u la r v o te to
p rom ote ju d ic ia l b ia s an d p a r t ia l i ty , o r p r e s s u r e s to w ard s th o se e n d s , b y o ffe r in g
a ju d g e th e b u f fe r of a b ro ad e lec to ra l b a se an d e n ab lin g him o r h e r to w ith s ta n d ,
in s o fa r a s p o ss ib le , th e p r e s s u r e s of p u b lic opin ion — in s h o r t , to a c t w ith co u rag e
a n d in te g r i ty . T he m inority in te r e s t in a system of th is -k in d is i ts e lf ex trem ely
s t r o n g in th e ju d ic ia l c o n tex t; i t is o f te n th e p o w erless a n d th e u n p o p u la r th a t a re
p ro te c te d b y jud ic ia l in d e p en d e n c e .
S ing le-m em ber d is t r ic ts , in c o n tr a s t , b r in g ju d g e s u n co m fo rtab ly c lose to th e
e le c to ra te . In A labam a, fo r exam ple, if J e f fe rso n C o u n ty (B irm ingham ) w ere d iv id ed
in to 24 s in g le -m em ber s u b d is t r ic ts , one fo r each c irc u it ju d g e , th e n u m b er of
e le c to rs e n title d to v o te fo r each ju d g e would d e c re a se from 488,937 (m easu red b y
v o tin g ag e p o p u la tio n ) to 20,372 p e r ju d g e . In su c h a s i tu a t io n , th e re is s im ply , a s
one Alabam a ju d g e h a s p u t i t , no " sh o c k a b so rb e r" to a id a ju d g e in " s u rv iv in g
d iff ic u lt d ec is io n s in c o n tro v e rs ia l c a s e s ." A ju d g e who "v a lu es h is o r h e r c a re e r on
th e b e n c h , o r who is a p p ro a ch in g th e la s t e lec tion n e c e s s a ry to accum ula te v e s te d
re tire m e n t b e n e f i ts , would be foo lish in d eed no t to b e aw are of (a n d p o ss ib ly b e n d
to ) th e v iew s of v ocal, in f lu e n tia l, o r po w erfu l in te r e s t g ro u p s in h is o r h e r d is t r ic t
w hen d e c id in g c a s e s ."
A lth o u g h sing le-m em ber d is t r ic ts can compromise th e a p p ea ra n ce (an d re a lity )
o f a n in d e p e n d e n t ju d ic ia ry , th e y do o ffe r one c o n sid e ra b le a d v a n ta g e : in cu m b en t
ju d g e s a re n o t all com pelled to r u n a g a in s t each o th e r in e v e ry e lec tio n . W ithin a n y
g iv e n d is t r i c t , th e incum ben t faces a c o n te s t only from new c h a lle n g e rs , n o t from h is
8
o r h e r co lleagues on th e b e n c h , a n d s e a ts may no t a lw ays be c o n te s te d . W here, as
in ju d ic ia l e lec tio n s , s in g le -m em b er d is t r ic ts a re a n u n d e s ira b le a l te rn a t iv e ,
n u m b ered p laces in a t- la rg e e lec tio n s a lso o ffe r th e same a d v a n ta g e .
T he p rim ary re a so n fo r p ro v id in g a m easure of p ro te c tio n to in cu m b en ts from
in e v ita b ly c o n te s te d e lec tio n s is th e s ta t e ’s s tro n g in te r e s t in ju d ic ia l com petence.
U nlike le g is la to rs , co u n ty com m issioners, school b o a rd m em bers, a n d m any c ity
o ffic ia ls , ju d g e s s e rv e fu ll-tim e ; th e i r jobs a re th e ir c a re e rs (a n a rra n g e m e n t th a t ,
i ts e lf , s e rv e s th e s ta te 's in d e p en d e n c e an d com petence i n t e r e s t s ) . A c a re e r m arked
b y th e th r e a t of p e rp e tu a l in s ta b il i ty , w ith co n te s te d e lec tio n s g u a ra n te e d e v e ry s ix
y e a r s , is h a rd ly an a t t r a c t iv e one to th e b e s t c a n d id a te s , who ty p ic a lly can re ly
on th e e x p ec ta tio n of g r e a te r lo n g e v ity as well as g r e a te r re m u n e ra tio n in p r iv a te
law p ra c tic e .
T he s ta te 's in te r e s t in ju d ic ia l com petence is s e rv e d in a t le a s t two o th e r w ays
b y nu m b ered p la c e s . In s itu a tio n s in w hich an in com peten t ju d g e c le a r ly n e ed s to be
rem o v ed , it is d iff icu lt fo r th e e le c to rs to ta rg e t only th a t ju d g e fo r d e fe a t in a p u re
a t- la rg e sy stem . S ince all th e ju d g e s m ust ru n a g a in s t each o th e r a t th e same tim e,
all ju d g e s a re in je o p a rd y of d e fe a t w here p e rh a p s on ly one s e a t w ould o th erw ise
h av e a t t r a c te d a c o n te s t . F u r th e r , b ecau se co n te s te d e lec tio n s w ould re q u ir e ju d g e s
to cam paign p a r t ic u la r ly a g a in s t th e i r co lleag u es, th e co lleg ia lity of th e b e n c h may
b e d im in ish ed , a n d ju d g e s en co u rag e d to "keep book" on one a n o th e r . Good
c an d id a te s m ight a g a in fin d s ta n d in g fo r e lec tion le ss th a n a t t r a c t iv e .
N um bered p laces in a t- la rg e e lec tio n s can also en h an ce th e in d e p en d e n c e of
ju d g e s , who m ust be sp ec ifica lly ta r g e te d , ch a llen g ed o n e -o n -o n e , a n d v o ted ou t b y
a s u b s ta n tia l segm en t of v o te rs to be re lia b ly u n se a te d in su c h a sy s te m . T h is may
m ake sw eeps of e lec tio n s , o r w holesale tu rn o v e r , le ss lik e ly , a n d a rg u a b ly re d u c e s
th e n eed fo r ju d g e s to p lay p o litic s . T he a s s u ra n c e th a t n o t e v e ry e lec tio n will
9
in e v ita b ly b e c o n te s te d also re d u c e s c a n d id a te s ’ n e ed s fo r cam paign fu n d s a n d ,
a g a in , o ffe rs ju d g e s ad d itiona l in su la tio n from p o l i t ic s .4
Lim ited an d cum ulative v o tin g sy stem s a re no b e t t e r th a n sing le -m em ber
d i s t r i c t s . In d e e d , th e y p re s e rv e th e d isa d v a n ta g e s of su c h sy stem s w ith o u t re a liz in g
th e a d v a n ta g e s of a t- la rg e n u m bered p lace e lec tio n s . In a lim ited v o te sy stem th e
v o te r m ust c a s t few er v o te s th a n th e n u m b er of s e a ts to b e f il le d . T he form of lim ited
v o te m ost o ften ad v o ca ted b y v o tin g r ig h ts p la in tif f s is th e s in g le n o n - tr a n s fe r ra b le
v o te sy stem (S N T V ), in w hich v o te rs a re g iv en only one v o te . In an SNTV sy stem
th e th re s h o ld of ex c lu s io n 5 ( th a t i s , th e level of s u p p o r t f o r a c an d id a te a t w hich
a g iv en g ro u p can n o t be den ied a s e a t) is low er th a n th a t in a com parable a t - la r g e ,
n u m b e re d -p la ce e lec tion system - - h e n ce , th e ap p ea l fo r m ino rity v o te r s .
In a cum ulative vo te sy stem , a v o te r ty p ic a lly h a s m any v o te s as th e re a re
s e a ts to fill b u t he o r she can cum ulate o r a g g re g a te th o se v o te s am ong a sm aller
n u m b er of c a n d id a te s , g iv in g a p r e fe r r e d can d id a te m ore th a n one v o te . L ike lim ited
v o tin g , cum ulative v o tin g re d u c es th e th re sh o ld of e x c lu s io n , e n h a n c in g th e a b ility
of a cohesive m ino rity g ro u p to e lec t a c a n d id a te . T he th re s h o ld of ex c lu s io n in su ch
a sy stem is th e same as th a t fo r an SNTV s y s te m .6
4 S uch in su la tio n is p a r tic u la r ly im p o rtan t in ju d ic ia l r a c e s , w hich do n o t alw ays
g e n e ra te b ro a d p u b lic in te re s t an d te n d to be fin a n c ed b y law y ers an d f r e q u e n t
l i t ig a to r s - - who p e rh a p s o ffe r th e g re a te s t p o te n tia l th r e a t to ju d ic ia l in d e p en d e n c e
o r th e a p p e a ra n c e th e re o f .
5 T he fo rm ula fo r ca lcu la tin g th e th re sh o ld of e x c lu s io n i s :
N um ber of v o tes each v o te r can c a s t
N um ber of v o te s each v o te r can c a s t p lu s n u m b er of s e a ts to b e f il led .
6 T he fo rm ula is :
1
1+ num ber of s e a ts to b e f i l le d .
10
From th e s ta n d p o in t of th e ju d ic ia ry , th e p rob lem s w ith th e SNTV or
cum ulative v o tin g sy stem s a re s u b s ta n tia l . F i r s t , th e s e sy s tem s re ta in th e ch ief
d isa d v a n ta g e of th e s ing le -m em ber d is t r ic t sy stem b y e n s u r in g th a t a ju d g e ’s
e lec tio n may be d e te rm in ed b y a v e ry small p ro p o r tio n of th e p o p u la tio n . For
exam ple, in th e T e n th C ircu it in A labam a, an y co h esiv e g ro u p th a t can m arshall
19,557 v o te s , o r ro u g h ly fo u r p e rc e n t of th e to ta l v o tin g ag e p o p u la tio n , is a s s u re d
a s e a t . Of c o u rse , ev en a low er n u m b er of v o tes may e lec t a ju d g e ; th e th re s h o ld of
ex c lu s io n r e p re s e n ts th e level of s u p p o r t a t w hich a g ro u p is g u a ra n te e d a s e a t.
O nce a g a in , ju d ic ia l in d e p en d e n c e - - o r th e a p p e a ra n c e th e re o f - - may be
com prom ised b y th e fa c t th a t .this sy stem re w ard s e f fo r ts to a t t r a c t v o te s from sm all,
id e n tif ia b le , cohesive g ro u p s th a t m ay, fo r exam ple, coalesce a ro u n d sin g le
ideological is s u e s . T he n eed fo r ju d ic ia l can d id a te s to ap p ea l b ro a d ly to a fu ll ra n g e
of v o te r s , an d th e re la tiv e p o litica l in su la tio n th a t b ro a d s u p p o r t p ro v id e s , is
c o n se q u e n tly d im in ish ed .
Not only is th e s ta te 's in te r e s t in an in d e p e n d e n t , u n b ia se d ju d ic ia ry
com prom ised in su ch sy s te m s , b u t i ts in te re s t in th e leg itim acy an d a u th o r i ty of th e
ju d ic ia l office is a d v e rse ly a ffe c te d b y p u b lic p e rc e p tio n th a t v e ry small g ro u p s of
v o te rs a re p ro p e llin g ju d g e s in to o ffice . I t is b ad en o u g h fo r a l i t ig a n t to know th a t
he o r sh e will a p p e a r b e fo re a n e ig h b o rh o o d (p e rh a p s n o t th e i r n e ig h b o rh o o d ) ju d g e ,
a s in a sing le -m em ber d is t r ic t sy s te m . I t is em inen tly w o rse fo r th a t l i t ig a n t to be
aw are th a t h is o r h e r case will be h e a rd b y th e tr ia l la w y e rs ' ju d g e , th e NEA's ju d g e ,
th e cham ber of com m erce's ju d g e , th e Eagle Forum 's ju d g e , o r th e A CLU 's ju d g e .
A t th e same tim e th a t lim ited an d cum ulative v o te p r e s e r v e , a n d a rg u a b ly
e n h a n c e , th is d isa d v a n ta g e of th e s ing le-m em ber d is t r ic t sy s te m , th e y fa il to rea lize
i ts ch ie f a d v a n ta g e (an d th e a d v a n ta g e of n u m b e re d -p la c e s ) fo r ju d g e s : th e
a s s u ra n c e th a t e lec tio n s a re no t in e v ita b ly c o n te s te d . In cu m b en ts h av e v ir tu a lly no
11
p ro te c tio n in th e se sy s te m s . Not on ly m ust all th e ju d g e s r u n a g a in s t each o th e r a t
each e lec tio n , b u t th e num b er of v o te s re q u ire d to u n s e a t a ju d g e , an d en d a c a re e r ,
is s u b s ta n tia l ly d im in ish ed . T he in c en tiv e fo r a good can d id a te to leave p r iv a te
p ra c t ic e fo r th e b e n c h is c o n s id e ra b ly u n d e rm in ed .
We n o te a lso th a t th e a d v a n ta g e s of th e se sy stem s fo r rac ia l m ino rities a re no t
a b so lu te ly c le a r . T h ese sy stem s re q u ire a g re a t d ea l of co h es io n , a n d h ig h ly
s t r a te g ic v o tin g , to o p e ra te p ro p e r ly ; a m inority g ro u p th a t c o n c e n tra te s i ts v o te s ,
b u t s til l fa lls below th e th re sh o ld of e x c lu s io n , may e n d u p w ith no d ire c t
r e p re s e n ta t io n a t a ll , an d no in flu en ce on o th e r c a n d id a te s whom it d id n o t h e lp e lec t
- - a g a in , a p a r t ic u la r p roblem w h ere v o te rs a re n o t e le c tin g re p re s e n ta t iv e s to a
co lleg ial b o d y . T h e re is co n sid e rab le d o u b t as to how m uch th e se s o r ts of sy stem s
h e lp th e i r in te n d e d b e n e f ic ia r ie s .
III.
C onclusion
A lte rn a tiv e s to th e p re s e n t sy stem of e lec tin g ju d g e s a t - la rg e from nu m b ered
p lace s im pose u n a cc e p tab le b u rd e n s on com pelling s ta te in te r e s t s in th e
in d e p en d e n c e an d com petence of th e s ta te ju d ic ia ry . T h e b a lan ce am ong th e se
in te r e s t s th a t th e s ta te s h av e p re s e n t ly s t ru c k is c ru c ia l to th e e ffe c tiv e fu n c tio n in g
of th e tr ia l b e n c h . G iven th e m in o rity 's d im inished in te r e s t in e le c tin g i ts own
re p re s e n ta t iv e s in th e ju d ic ia l c o n te x t , th e sca les sh o u ld tip in th e C o u r t 's a n a ly s is
to w ard a f in d in g of no Section 2 v io la tion as a m a tte r of law in th e in s ta n t c a se .
12
Respectfully subm itted,
h * .S
SUSAN E. RUSS
Special A ss is ta n t A tto rn e y G enera l
MILLER, HAMILTON, SNIDER & ODOM
One Commerce S tre e t
S u ite 802
M ontgom ery, Alabam a 36104
(205) 834-5550
vrA ?-• fWj & /
DAVID R. BOYD
Special A ss is ta n t A tto rn e y G enera l
(C ounsel of R eco rd )
BALCH & BINGHAM
P o st O ffice Box 78
M ontgom ery , A labam a 36101
(205) 834-6500
J- (k JU , nr h < .t-
FOURNIER J . GALE, III
Special A ss is ta n t A tto rn e y G en era l
MAYNARD, COOPER, FRIERSON & GALE
2400 A m South Tow er - H a rb e r t P laza
1901 6 th A v en u e , N o rth
B irm ingham , A labam a 36101
(205) 252-2889
13
S- h w
WALTER S. TURNER
RONALD C . FOREHAND
OFFICE OF THE ATTORNEY GENERAL
11 S o u th Union S tr e e t , Room 303
M ontgom ery, Alabam a 36130
(205) 242-7300
14
CERTIFICATE
I HEREBY CERTIFY that a copy of the forego in g has been serv ed upon the
follow ing: Jim M attox, A ttorney General of T exas, Mary F. K eller, F irst A ssista n t
A ttorney G eneral, Renea H icks, Special A ssistan t A ttorn ey G eneral, and Javier
Juajardo, A ssistan t A ttorney G eneral, P .O . Box 12548, Capitol S tation , A u stin ,
T exas 78711-2548; William L. G arrett, G arrett, Thompson & C hang, 8300 D ouglas,
Suite 800, Dallas, T exas 75225; Rolando R ios, Southw est V oter R egistration &
Education Project, 201 N. S t. M ary's, Suite 521, San A ntonio, T exas 78205;
Sh errilyn A . If i l l , NAACP Legal D efense and Educational Fund, I n c . , 99 Hudson
S tree t, 16th Floor, New York, New York 10013; G abrielleK . McDonald, 301 C ongress
A ven u e, Suite 2050, A u stin , T exas 78701; Edward B . Cloutmann, III, M ullinax,
Wells, Baab & Cloutman, P . C . , 3301 Elm S treet, D allas, T exas 75226-1637; J . Eugene
C lem ents, Porter & C lem ents, 700 Louisiana, Suite 3500, H ouston, T exas 77002-2730;
Robert H. Mow, J r . , H ughes & L uce, 2800 Momentum P lace, 1717 Main S tree t, Dallas,
T exas 75201; John L. Hill, J r . , L iddell, Sapp, Z iv ley , Hill & LaBoon, 3300 Texas
Commerce Tow er, H ouston, T exas 77002; Walter L. Irv in , 5787 South Hampton Road,
Suite 210, Lock Box 122, Dallas, T exas 75232-2255; R ; James G eorge, J r . , G raves,
D ou gh erty , Hearon & Moody, P . O. Box 98, A u stin , T exas 78767; Seagal^ V.
W heatley, Oppenheim er, R osenb erg, Kelleher & W hatley, I n c . , 711 N avarro, S ixth
Floor, San A ntonio, Texas 78205; and John R. D unne, A ss is ta n t A ttorney G eneral,
Jessica D unsay S ilv er , Mark L. Gross and Susan D. C arle, A tto rn ey s, Department
of J u stice , P.O. Box 66078, W ashington, D. C. 20035-6078, b y d ep ositin g the same
in the United States Mail, postage prepaid , properly a d d ressed .
All parties required to be serv ed have been ser v e d .
M o n t g o m e r y C o u n t y , A l a b a m a , t h i s t h e I KK__ d a y o f
O r s h l x ^ _________________________ -» 1991-
c2r>v?'& v-) i
OF COUNSEL
15
IN THE
JMmtrfr U tah's Court of JVppeals
FOR THE F in n CIRCUIT
DONALD R. LEWIS. ET. AL.,
Appellants,
v.
THE NATIONAL LABOR RELATIONS BOARD,
ET. AL.,
Appellees.
Appeal from the United States District Court
for the Southern District of Texas
BRIEF FOR APPELLEE
THE NATIONAL LABOR RELATIONS BOARD,
ET. AL.
D a n iel K. H ed g es
United States Attorney
J am es R. G o u g h
C . J . ( N e il ) C alnan
J avier A g u ila r
Assistant United States Attorneys
A ttorneys for Appellees
P.O.Box 61129
Houston, Texas 77208
O f Counsel:
M a r y A. D affin
R aym ond F o r ster
Counsel, National Labor Relations Board
Y vo n n e D ixon
Counsel, National Labor Relations Board
I
STATEMENT REG A RD IN G ORAL ARGUM ENT
The Appellees, the National Labor Relations Board, et.
al, see no need for an oral argument in this Appeal, which
seeks to have the District Court’s Final Judgment in favor of
the Appellees reversed. This Appeal involves no novel or
complex issues of law. Rather, the Appeal involves the
application of the well established “clearly erroneous” rule
and “abuse of discretion” rule.
Oral argument would not aid this Honorable Court in
determining whether the District Court’s Final Judgment
was clearly erroneous or whether the District Court abused
its discretion in granting costs to the Appellees because the
facts and legal arguments are adequately presented in the
briefs and in the record. Fed. R. App. P. 34(a).
II
SUBJECT INDEX
Page
Statement............................. ................................. 1
Statement of Jurisdiction..................................... 2
Statement of Issues Presented............................. 2
Statement of the Case........................................... 2
Summary of Argument......................................... 18
Argument and Authorities........................... 19
Appellee’s First Reply Point ..................... 19
This honorable court need not make a De
Novo review o f the massive evidence ad
duced at the trial o f this action because the
final judgment rendered by the district court
was not clearly erroneous and should there
fore be affirmed.
Appellee’s Second Reply Point........................... 40
The District Court did not abuse its discre
tion in awarding the government its costs.
Conclusion............................................................ 44
Certificate of Service............................................. 45
Appendix A—The District Court’s Findings of
Fact with Citations to the R ecord................... 46
Ill
LIST OF AUTHORITIES
CASES
Page
B.F. Goodrich Co. v Rubber Latex Products,
Inc., 400 F.2d 401 (6th Cir. 1968) .................... 22
George W. B. Bryson & Co., LTCv. Norton Lilly
& Co., Inc., 502 F.2d 1045,1049 N. 17 (5th Cir.
1974)......................... 20
In re Nissan Antitrust Litigation, 577 F.2d 910,
918 (5th Cir. 1978), cert, denied sub. nom.,
P.D.Q. Inc. v. Nissan Motor Corp., 439 U.S.
1072 (1978)......... 40
International Brotherhood of Teamsters v.
United States, 431 U.S. 324, 336 (1977).......... 30
Kaspar Wire Works, Inc. v. Leco Engineering &
Machinery, 575 F.2d 530 (5th Cir. 1978)........ 21
McDonald Douglas Corp. v. Green, 411 U.S. 792
(1973)................................................................ 23
Odeco Inc. v. Avondale Shipyards, Inc. 663 F.2d
650 (5th Cir. 1981)............. 20,21
Payne v. Travenol Laboratories, Inc., 673 F.2d
798 (5th Cir. 1982), cert, denied, 103 S. Ct. 451-
452 (1982)............................................ 30
Pullman-Standard v. Swint, 456 U.S. 273 (1982) 23
Railex v. Speed Check Co., 457 F.2d 1040, 1042
(5th Cir. 1972), cert denied, 409 U.S. 876
(1972)................................................................ 20
Texas Department of Community Affairs v. Bur-
dine, 450 U.S. 248 (1981)................................ 23, 24
Thomas v. Secretary of the Navy, 24 F. R. Serv.
2d 727 (D. Col. 1977) . . . . . . . . . ...................... 40
United States Postal Service Board of Governors
v. Aikens, _____ U.S. _____ , 103 S. Ct.
1478, 75 L. Ed. 2d 403 (1983)......................... 23,24
IV
CASES
Page
United States v. Florida, 482 F.2d 205 (5th Cir.
1973)............................................................ . 19, 20
United States v. United States Gypsum Co., 333
U.S. 364, 395 (1948)......................................... 20
Williams v. Southwestern Bell Telephone C o .,..
718 F.2d 715, 718 (5th Cir. 1983)................... 20, 23, 24
ACTS
Civil Rights Act of 1866 ....................................... 2
Equal Employment Opportunity Act of 1972 . . . 2
Executive Order 11478 .... ................................... 2
Fifth Amendment to the United States Constitu
tion ....................................... .............. ............ ... 2
Title VII of the Civil Rights Act of 1964 ............ 2
UNITED STATES STATUTES
28 U.S.C. §1291.................................................. 1
28 U.S.C. §1920 .................................................. 40
42 U.S.C. §2000 .................................................. 2
42 U.S.C. §1981................................................. 2
FEDERAL RULES CIVIL PROCEDURE
Rule 52 ................................................................... 19, 22
Rule 5 4 ..................... ................................... 40
IN THE
^Anlttb S ta tes Court of Appeals
FOR THE FIFTH CIRCUIT
No. 83-2055
DONALD R. LEWIS, ET. AL.,
Appellants,
v.
THE NATIONAL LABOR RELATIONS
BOARD, ET. AL.,
Appellees.
Appeal from the United States District Court
for the Southern District of Texas
BRIEF FOR APPELLEE
STATEM ENT OF JU R ISD IC TIO N
This Court has jurisdiction on direct appeal under Title 28
U.S.C. §1291.
2
STATEM ENT OF ISSUES PR E SE N T ED
The following issues are presented in this appeal:
I.
Was the District Court’s Final Judgment clearly errone
ous?
II.
Did the District Court abuse its discretion in awarding
costs to the Appellees?
STATEM ENT OF TH E CASE
a. Procedural History
On May 10,1976, Donald R. Lewis, a black professional
employee of the National Labor Relations Board
(“N.L.R.B.”), filed a complaint for himself and all others
similary situated, alleging that the N.L.R.B. discriminated
against its black professional employees in violation of the
rights “secured by Title VII of the Civil Rights Act of 1964,
as amended by the Equal Employment Opportunity Act of
1972,42 U.S.C. §2000e et. seq., by the Fifth Amendment to
the United States Constitution, by the Civil Rights Act of
1866, 42 U.S.C. §1981 et. seq., and by Executive Order
11478.
On October 19, 1979, the District Court certified the
action as a class action, defining the class as all
Past, present and future Black Field Examiners and
Attorneys throughout all of the NLRB regions within 1
1. Record at Vol. I, p. 958 et. seq. The Plaintiffs filed an Amended Complaint
on June 7, 1976. Record at Vol. I, p. 932 et. seq.
3
the United States who could have brought a timely
administrative claim on the date Plaintiff brought his
claim.2
The parties performed extensive discovery over the next
three years and, on June 21,1982, they tried the case to the
Honorable Norman W. Black.3 During the eleven days of
trial to the Court, the Appellants challenged the following
alleged employment practices, policies, and procedures of
the N.L.R.B.:
(1) failing to upgrade and promote Blacks on an
equal basis as Whites;
(2) maintaining the “twenty percent rule” for attor
neys and the “fifty percent rule” for field examiners,
which allegedly perpetuated the effects of prior dis
criminatory practices and policies by excluding Blacks
from promotional opportunities;
(3) failing to promote Blacks to supervisory posi
tions;
(4) instituting and maintaining subjective evalua
tions and appraisal practices and policies that were not
uniformly applied by Whites and which, therefore, had
an adverse impact on Blacks;
2. Record at Vol. Ill, p. 576. In defining the class, the Court specifically
excluded applicants and persons in the N.L.R.B.’s co-op program. In addition,
the Court excluded from the class those persons who could not have brought
their own administrative claim within 30 days of the date Mr. Lewis filed suit,
i.e., September 2, 1975. The Court also eliminated future employees and in
cluded only persons employed as of December 31,1980.
3. Originally, the case was to be tried before the Honorable Carl Rubin, a
visiting judge. The Attorney-In-Charge for Appellants arrived at the pre-trial
conference an hour late. Judge Rubin declined to try the case because of his
feelings regarding the conduct of Appellants’ counsel and because the antici
pated length of the trial would conflict with prior trial commitments in his Court.
Record at Vol. V, pp. 203, 6-8. The case was, therefore, returned to Judge Black
and the trial started on June 21, 1982.
4
(5) denying Blacks equitable terms and conditions of
employment, including but not limited to transfers and
assignments;
(6) maintaining a practice and policy of harassing and
reprimanding Blacks more frequently and severely
than Whites;
(7) failing to respond to, or redress complaints of,
racial discrimination; and
(8) retaliating against blacks who voiced claims of
racial discrimination.
On November 24,1982, after listening to the testimony of
the Appellants’ fourteen (14) witnesses, the Appellees’
twenty-one (21) witnesses, and after reviewing the volumi
nous documentary and statistical evidence adduced by both
sides at the trial, the District Court entered its Final Judg
ment in favor of the Appellees and denied all of the Appel
lants’ claims for relief.4
On December 10, 1982, the Appellees moved the Court
for costs, which on May 9,1983, the Court granted.5 6
The Appellants perfected their appeal of the District
Court’s Final Judgment on January 20, 1983° and of the
District Court’s award of costs to the Government on June
23,1983.
4. Record at Vol. IV, p. 76.
5. Record at Vol. IV, pp. 76 and 2.
6. Record at Vol. IV, p. 63.
5
b. Statement of the Facts7
1. Background
The N.L.R.B. is a federal agency that was established in
1935 to enforce the National Labor Relations Act
(N.L.R.A.). It is headed by a five-member Board that has
adjudicatory functions and a General Counsel who is re
sponsible for investigating and prosecuting alleged viola
tions of the N.L.R.A. The N.L.R.B. also conducts union
representation elections.8 9
The Office of the General Counsel is divided into four
divisions. The Division of Operations Management (“Oper
ations”), headed by Associate General Counsel Joseph E.
DeSio, manages the field offices for the General Counsel.
The Operations staff is divided into six districts, each of
which is headed by an Assistant General Counsel, who is
allowed two Deputies. Each district oversees five to six field
offices.g
There are currently 33 regional offices, some having resi
dent and subregional offices under them. Each Regional
Office is headed by a Regional Director, a Regional Attor
7. Although the Appellees disagree with the accuracy of the Appellants'
statement of facts, the Appellees will not attempt to present an exhaustive
statement pointing out all areas of disagreement. Rather, only those areas
essential to an understanding of the issues on appeal will be addressed. The
Appellees adopt the District Court’s Findings of Facts and Conclusions of Law
filed on December 1, 1982.
8. Record at Vol. XIV, pp. 97-98; Government Exhibit 207 (hereinafter
Govt. Ex.).
9. Record at Vol. XIV, pp. 97-99; Govt. Ex. 207, 208.
6
ney, an Assistant to the Regional Director, and supervisors.
The professional staff is composed of field attorneys and
field examiners. Examiners investigate allegations of unfair
labor practices, investigate representation cases, and con
duct union representation elections. In addition to having
the same duties as examiners, attorneys try cases in adminis
trative hearings and in district court."’
2. Hiring Practices
The rules and regulations of the Office of Personnel Man
agement (formerly the Civil Service Commission) govern
the hiring of field examiners, who are in the “competitive
service” . In order to be hired, the examiners must pass the
Professional and Administrative Career Examination
(PACE) and must be placed on the Civil Service Register
(“the register”). TheN.L.R.B. must follow the “Rule of 3”,
which implements veterans preference, when hiring some
one from the register. The normal entry level grade for field
examiners hired through the PACE examination process is
GS-7.
Alternatively, the N.L.R.B. hires examiners at the GS-5
level through its Cooperative Education Program. Some
times, the N.L.R.B. hires examiners at the GS-9 level
through transfer from another federal agency or through
successful performances in the Mid-level Examination con
ducted by the Civil Service Commission. Examiners can also
be hired at the GS-9 level if they have two years of experi
ence or a Masters Degree in Labor Relations or Industrial
Relations. In contradistinction to field examiners, field at
torneys are in the “excepted” service, which means that the 10
10. Record at Vol. XIV, p. 100; J.P. Ex. 26.
7
“Rule of 3” and other civil service rules do not apply.11
Because of the “Rule of 3” , the N.L.R.B. has found it
difficult to hire minorities and women from the register.
Thus, the N.L.R.B. has developed alternative means of
hiring field examiners.12
Until the early 1970’s, the N.L.R.B. could hire examiners
through the Outstanding Scholar Program if they were in
the top ten precent of their class and had a 3.0 grade aver
age, without their having to take the Federal Service En
trance Examination. This program ended when the PACE
Examination was instituted.13 The N.L.R.B. also created an
Upward Mobility Program in which it underwrites the cost
of college level courses and other training for its employ
ees.14
In 1975, the N.L.R.B. established the Bridge Program to
train qualified clerical employees to be field examiners at
the GS-7 level. Since the Bridge Program’s inception, fif
teen to twenty percent of those in the Program that became
field examiners have been Black.15
11. Record at Vol. XIV, p. 103.
12. Record at Vol. XIV. pp. 103-108.
13. Id.
14. Id.
15. Record at Vol. XIV, pp. 105-106; Vol. XVI, pp. 119-120; Govt. Ex. 224,
225, and 226.
8
In 1976, the N.L.R.B. also instituted a Cooperative Edu
cation Program. Under this Program, the regional offices
enter into contracts with local colleges and universities.
Students in their junior and senior years work for the
N.L.R.B. for 13-weeks each year. Upon successful comple
tion of the Program, the co-op students become field exam
iners without having to take the PACE examination. Since
the Cooperative Education Program’s inception, twelve of
the seventy-six students that became field examiners have
been Black.16
The N.L.R.B. has had various affirmative action plans
since the passage of Executive Order 11478. These plans
have emphasized recruitment and hiring of minority and
female attorneys and examiners. The regional offices have
recruited at colleges, universities, and law schools and have
included minority and women employees on recruiting
teams. These teams have visited job fairs and conferences
sponsored by such groups as the National Bar Association.17
In 1973, the N.L.R.B. established the position of EEO
Director. The EEO Director reports directly to the Chair
man of the Board and the General Counsel.18
The N.L.R.B. has published its Affirmative Action Plans
since at least 1972. It distributes an annual memorandum to
16. Record at Vol. XIV, p. 107; Vol. XVI, pp. 114-115; Govt. Ex. 227.
17. Record at Vol. XIV, pp. 112-113, 161; Vol. XV, pp. 46-47, 55-56; Vol.
XVI, pp. 86-87; Vol. XVIII, pp. 156-158; Vol. XX, pp. 16-17,163-167; Govt. Ex.
209.
18. Record at Vol. XIV, p. 160; Govt. Ex. 211.
9
all employees reporting the hiring progress made under the
Affirmative Action Plans.19
From Fiscal Year (FY) 1972 to FY 1981, the Office of the
General Counsel hired 1660 professional employees. Of
these, 21.92% were minorities. Between 1975 and 1980,
10.5% of the professionals hired into the field offices were
Black. During the same period of time, three to four percent
of law school graduates nationwide were Black.20
The N.L.R.B.’s senior personnel are actively involved in
the implementation of the Affirmative Action Plan. The
EEO Director attends the General Counsel’s daily staff
meetings for top managers. Moreover, Associate General
Counsel DeSio is regularly provided with statistical profiles
of the women and minorities in each office. Since 1973,
supervisors and managers have been evaluated on their
ability to meet the goals of the Affirmative Action Plan.21
The N.L.R.B. holds annual training conferences for Re
gional Directors and for newly-appointed supervisors,
budget permitting. Each conference contains an EEO seg
ment which is conducted by the EEO Director.22 Moreover,
the N.L.R.B. gives annual awards to employees for out
19. Record at Vol. XIV, p. 110; Vol. XV, pp. 56-57; Govt. Ex. 228-236.
20. Record at Vol. XIV, p. I l l ; Vol. XVI, pp. 89-90; Govt. Ex. 236.
21. Record at Vol. XIV, pp. 164-166, 175, 205-206; Vol. XVII, p. 21; Govt.
Ex. 220,221,222.
22. Record at Vol. XIV, pp. 112-116; Vol. XVII, p. 21; Vol. XVIII, pp. 4-5,
87; Vol. XIX, pp. 18-19; Govt. Ex. 239, 253.
10
standing contributions in the area of equal employment
opportunities.23
3. Training
The N.L.R.B. trains its professional employees both for
mally and informally. Budget permitting, the N.L.R.B. con
ducts one-week training sessions for all new examiners and
attorneys. This training session is scheduled so that most of
the participants will have had at least six months’ experience
with the N.L.R.B. Training materials, including lengthy
outlines discussing the various provisions of the N.L.R.A.
are given to the participants before the training session.24
The N.L.R.B. conducts training conferences for experi
enced trial attorneys and field examiners. A field attorney
must be at least a GS-11 before attending the trial attorneys’
conference since he or she will then be a member of a state
bar and have had some experience with trial work.25 26 Re
gional offices also have formal training programs, com
prised of weekly training meetings, which all employees are
required to attend. In addition, new employees work with
more experienced employees to observe the techniques of
investigations and the conduct of elections and hearings.2(1
23. Govt. Ex. 223.
24. Record at Voi. XIV, p. 113; Vol. XVI, pp. 92-94, 96-97; Vol. XI, p. 2;
Govt. Ex. 425.
25. Record at Vol. XIV, pp. 116-118; Vol. XVI, pp. 99-100, 146; Govt. Ex.
425.
26. Record at Vol. XVI, pp. 191-192; Vol. XVII, pp. 7,17-20,30-32,158-166,
191-192; Vol. XVIII, pp. 15-16,111-112; Vol. XIX, pp. 18, 27, 48-49; Govt. Ex.
414.
11
Examiners and attorneys are also given on-the-job training
by their first-line supervisors.27
4. Performance Appraisal System
The N.L.R.B. has always had a performance appraisal
system. In 1962, then General Counsel Rothman devised
the “time target" system in which median times were set for
each stage of case processing. Managers, who had experi
ence as agents and as supervisors, developed an appraisal
system around the “time target” system.28
The current appraisal form, developed following discus
sions between field managers and the Union representing
field employees, consists of two parts. Part I lists 12 factors
on which examiners and attorneys are evaluated in grades 5
through 11, and an additional 8 factors on which attorneys
and examiners are evaluated in grades 12 and above. Next to
each factor are several descriptive statements which a super
visor may use to describe the employee’s performance on
that factor. Alternatively, the supervisor may choose not to
select any of the descriptive statements. The appraisal forms
adduced at trial show that it is common for a supervisor who
has selected one of the preprinted descriptive statements to
strike out portions of those statements which he or she
believes do not apply. The statements are not arranged from
least favorable to most favorable because the developers of
the form believed this configuration would suggest
27. Record at Vol. XIV, pp. 120-121; Voi. XVIII, p. 16; Vol. XXI, pp. 2-4;
Vol. XXIII, pp. 16-17.
28. Record at Vol. XIV, pp. 149-151.
12
which descriptive statements to select.29 30 Part II of the ap
praisal form is reserved for “Narrative Comments” . The
form states that the supervisor is to comment specifically on
the performance of the employee, both strength and weak
nesses, and to give concrete examples wherever possible.311
New supervisors are trained on how to appraise employ
ees. In addition to oral instructions, new supervisors are
furnished a lengthy memorandum on how to write career-
development appraisals. The memorandum has been dis
tributed since the mid-70’s. The memorandum states that
the narrative section must contain sufficient specific exam
ples of performance to justify and explain the basis for the
supervisor’s recommendations on the promotion of the em
ployee. The memorandum then sets forth certain areas of
performance which should be discussed in virtually all ap
praisals, including timeliness, productivity, the employee’s
knowledge of law and procedure as related to his or her
grade level, analytical ability and thoroughness of research,
investigations, and trial preparation. Supervisors are also
urged to comment on the employee’s writing ability. The
memorandum then gives examples of appraisals, which
show the specificity which is needed in properly written
appraisals. The memorandum states that a supervisor must
engage “in a meticulous continuing analysis and recording
of the employee’s performance.” Supervisors are told to
keep “memory joggers” , and the use of case cards is sug
gested for this purpose. On the cards, supervisors are to note
29. Record at Vol. XIV, pp. 151-153; Govt. Ex. 252, 253.
30. Record at Vol. XIV, pp. 151-153; PI. Ex. 25.
13
how much work was required on the case, whether the case
was routine or complex, an explanation of any time delays in
the case proceeding, whether the employee’s handling of the
case was very good, and if so, in what way, whether a
performance deficiency in the case was discussed with the
employee, and the employee’s reaction.31 Supervisors are
told to inform employees, during the appraisal year, about
observed performance deficiencies. This requirement is
contained in the collective bargaining agreement between
the General Counsel and the Union that represents field
employees.32
Once the supervisor prepares a draft of the appraisal, he
or she meets with the employee to discuss the appraisal. The
supervisor may make changes to the draft as a result of the
employee’s comments.33 The appraisal is then sent to the
Regional Attorney, the Assistant to the Regional Director,
and the Regional Director, for their evaluation of the em
ployee. These officials base their review of the employee’s
performance on written work and upon their observations
of the employee’s performance at “oral agenda’’, which are
meetings in which the employee, the supervisor, and the
higher level officials discuss the results of the employee’s
investigation of a case and his or her recommendations on
31. Record at Vol. XIV, pp. 122-124, 151-153; Vol. XVI, pp. 181-182; Vol.
XIX; Govt. Ex. 239.
32. Record at Vol. XIV, pp. 124-125; Gov. Ex. 216, 217, 218, 239.
33. Class members testified that their appraisal had been changed after they
made specifc comments to their supervisor regarding the appraisal. See, R. Vol.
XXI, 177; R. Vol. XXIII, 99.
14
action which should be taken.14
The employee has the right, under the collective bargain
ing agreement, to meet with the Regional Director to dis
cuss the appraisal. The employee can submit written
comments about the appraisal, which become part of the
appraisal. In addition, the employee can challenge the ap
praisal through the grievance/arbitration procedures of the
collective bargaining agreement.15
The normal entry grade for field examiners is GS-7, al
though some enter at GS-5 and others at GS-9. Examiners
are appraised on an annual basis thereafter, and, assuming
satisfactory performance, can be promoted at one-year in
tervals up to GS-12, the journeyman grade level for exam
iners. The Directors have the authority to promote
examiners up to GS-12.
The normal entry grade for field attorneys is GS-9. Attor
neys are also evaluated on an annual basis, and, assuming
satisfactory performance, can be promoted at one-year in
tervals up to GS-13, the journeyman level for field attor
neys. The Directors have the authority to promote attorneys
up to GS-13. The Collective Bargaining Agreement specifi
cally states that such career ladder promotions are not auto
matic.16 34 35 36
34. Record at Vol. XIV, pp. 127. 135-136, 154-156; Govt. Ex. 216, 217, 239.
35. Record at Vol. XIV, pp. 122, 126-128, 130-132; Vol. XIX, pp. 144-145;
Vol. XXIII, p. 99; Govt. Ex. 216, 217, 218.
36. Record at Vol. XIV, p. 129; Govt. Ex. 216, 217, 218.
15
The GS-13 examiner and GS-14 attorney positions are
“expert” level positions. Employees at these levels are ex
pected to handle the most complex cases with the minimum
of supervision. Normally, a GS-12 examiner must wait a
minimum of sixteen months before being considered for
promotion to GS-13. The normal minimum waiting period
for promotion to a GS-14 attorney is twenty-four months.
GS-12 examiners and GS-13 attorneys are rated after one
year in grade as to whether they are ready for promotion to
the expert level. The Regional Directors must recommend
to Operations that the employee is either ready or not ready
for promotion. If the employee disagrees with the Region’s
recommendation, he or she may file comments with Opera
tions. Operations will then review the appraisal package,
the Region’s recommendation, and the employee’s com
ments, and decide whether the employee should be rated
“ready for promotion” . If the employee disagrees with the
rating, he or she may file a grievance.37
5. Supervisory Promotions
Examiners and attorneys who reach the journeyman level
are rated as either being qualified or not qualified for first-
line supervisory positions. The Region recommends
whether an employee should be rated “well qualified” or
“not ready” . Operations reviews this recommendation. If
the employee disagrees with the Region’s recommendation,
he or she may file comments with Operations.38
37. Record at Vol. XIV, pp. 124, 129-131, 141; Vol. XVI, pp. 152-153, 155;
Govt. Ex. 216, 217, 218.
38. Record at Vol. XIV, pp. 129-131; Govt. Ex. 216, 217, 218.
16
A panel of three Operations staff members reviews the
Region’s recommendations. The panel is usually composed
of the Assistant General Counsel for the district which
includes the region, a Deputy Assistant General Counsel,
and the Executive Assistant or his Deputy. The panel re
views the appraisal and the employee comments and rates
the employee as either well qualified or not ready. An
employee can file a grievance if rated not-ready.19
The collective bargaining agreement provides that when a
supervisory vacancy occurs in a Regional Office, the first
consideration goes to persons in the office rated well-
qualified, as well as persons in other offices who are also
rated well-qualified and who have asked to be considered
for supervisory vacancies in that office by having their name
placed on the “write-in register” for that office. If there is a
minimum number of candidates in that first area of consider
ation, the selection may be made without soliciting other
applicants. If the first area of consideration does not contain
the minimum number of applicants, the position may be
advertised throughout the N.L.R.B. The General Counsel
approves all selections. Persons in a given office who are
rated well-qualified must state that they will accept the
position in order to be in the first area of consideration.39 40
The evidence shows that the N.L.R.B. actively solicited
Black employees to apply for supervisory and managerial
positions. One of the Appellants’ witnesses testified that he
39. Record at Vol. XIV, pp. 129-130; Vol. XVI, p. 103; Govt. Ex. 216, 217,
218.
40. Record at Vol. XIV, p. 138-140; Vol. XV, pp. 33-34,37-38; Vol. X, p. 137;
Vol. XI, p. 29.
17
was encouraged to apply for a supervisory position in Re
gion 12 and that the General Counsel detailed him to that
office to see whether he wanted the position. While he was
detailed to that office, the General Counsel offered him the
position of Deputy Assistant General Counsel in Headquar
ters and he accepted. Associate General Counsel DeSio has
personally solicited at least twelve Black employees to apply
for supervisory and managerial positions. Three applied and
were selected for positions on his staff in Headquarters.
Another of the Appellants’ witnesses was also invited to
apply for a supervisory position.41
41. Record at Vol. XIV, p. 182; Vol. XV, pp. 33-34; Vol. XXIII, pp. 144,179-
181; Vol. XXI, p. 110.
18
SUMMARY OF THE ARGUMENT
The final judgment rendered by the trial judge in this
action is not clearly erroneous. The trial judge heard testi
mony from, and observed the demeanor of, a plethora of
witnesses for both parties during the lengthy (eleven day)
trial. The trial judge manifested a clear understanding of the
issues involved at trial and even interrogated several of the
witnesses on various factual points. Contrary to the Appel
lants’ contentions, the Appellants could not have had a
more attentive, receptive, and judicious trial judge to hear
their case. The record is replete with concrete, dispositive
evidence that supports the District Court’s Final Judgment.
The Final Judgment should, therefore, be affirmed because
it is not clearly erroneous.
Moreover, the District Court did not abuse its discretion
by awarding costs to the Appellees. On the contrary, the
District Court was well within its discretion to award costs to
the Appellees in view of its decision of the case.
19
A R G U M E N T A N D A U TH O R IT IES
A P P E L L E E ’S FIRST REPLY PO INT
(In Response to Appellant’s First, Second, Third, Fourth,
and Fifth Appeal Points.)
This honorable court need not make a De Novo review of
the massive evidence adduced at the trial of this action
because the final judgment rendered by the district court
was not clearly erroneous and should therefore be affirmed.
A. The Clearly Erroneous Standard Applies In A Review
Of A Trial Court's Findings Of Fact In A Title VII Action.
In United States v. State o f Florida, 482 F.2d 205 (5th Cir.
1973), this Honorable Court clearly articulated the standard
used to review a trial court’s findings of fact:
Rule 52(a) of the Federal Rules of Civil Procedure
provides that the findings of fact by a district court in
actions tried without a jury shall not be set aside unless
“clearly erroneous” , [citations omitted] Under this rule
the determination of the factual content of ambiguous
testimony is for a trial court, and such determination
can be set aside on review if “clearly erroneous” , [cita
tions omitted] The rule is also applicable insofar as the
district court’s conclusion is based on inference drawn
from documents or undisputed facts, [citations omit
ted].
Furthermore, since the jurisdiction of this court is
appellate, we have no right to retry the issues of fact de
novo or substitute our judgment with respect to such
issues, [citations omitted] The function of this court is
to determine whether, as a matter of law, the findings
sustained the judgment. If, however, the findings of the
district court are unsupported by substantial evidence,
then the lower court’s decision may be set aside.
20
United States v. State o f Florida, 482 F.2d at 207-208. The
clearly erroneous rule unquestionably applies to Title VII
actions. Williams v. Southwestern Bell Telephone Co., 718
F.2d 715, 718 (5th Cir. 1983). Moreover, “[a] finding [of
fact] is ‘clearly erroneous’ when although there is evidence
to support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed” . United States v. United States Gypsum
Co., 333 U.S. 364, 395 (1948). The clearly erroneous rule
applies “whether the lower court personally prepares such
[factual] findings and conclusions or adopts those submitted
by counsel” . George W. B. Bryson & Co., LTD v. Norton
Lilly & Co., Inc., 502 F.2d 1045, 1049 n. 17 (5th Cir. 1974)
citing Railex Corp. v. Speed Check Co., 457 F.2d 1040,1042
(5th Cir. 1972), cert, denied, 409 U.S. 876 (1972).
The Appellants glibly argue that since the trial judge
adopted almost verbatim and in toto the Appellees’ Pro
posed Findings of Fact, that this Honorable Court should
now “conduct a thorough review of the entire record in this
case and dispose of the appeal on its merits”.42 This argu
ment has no basis in law or on the facts of this case. In
Odeco, Inc. v. Avondale Shipyards, Inc., 663 F.2d 650 (5th
Cir. 1981), the losing party urged this Court to do precisely
what the Appellants have urged here: an independent de
novo review of the evidence. The Odeco Court denied the
request, ruling that “[t]he district court’s findings of fact,
albeit taken largely from proposed findings submitted by
[the prevailing party], are due all the deferential review
mandated by Rule 52(a).” Odeco, Inc. v. Avondale Ship
42. Appellants’ Brief at 36.
21
yards, Inc., 663 F.2d at 653. The holding in Odeco was
impelled by the decision in Kaspar Wire Works, Inc. v. Leco
Engineering & Machinery, 575 F.2d 530 (5th Cir. 1978), in
which this Court lucidly held:
It is asserted . . . that the district court’s findings
should not be affirmed because the trial judge adopted
verbatim the proposals submitted by [the defendant].
We have frequently criticized this practice . . . How
ever, the mere fact that the court penned its name to a
manuscript authored by an advocate does not itself
indict them . . . In this case, the comments the court
made on the records show that the trial judge under
stood the case and performed his decision reaching
process adequately.
Kaspar Wire Works, Inc. v. Leco Engineering & Machinery,
575 F.2d at 543.
As in Kaspar Wire Works, the record in this appeal is
replete with instances in which the trial judge not only
showed a thorough understanding of the case, but even took
an active role in questioning the witnesses. Indeed, the trial
judge performed his judicial duties in an exemplary fashion
throughout the long and taxing trial. There is no basis for the
Appellants’ denigrating characterization of the trial judge’s
ruling as manifesting “a blatant lack of independent consid
eration of the issues” .43 On the contrary, there is more than
substantial evidence supporting the trial court’s findings of
fact. Appendix “A” , which is attached hereto, contains
citations to the record showing where support for each of the
District Court’s findings of fact can be found.
43. Appellant’s Brief at 36.
22
B. F. Goodrich Co. v. Rubber Latex Products, Inc., 400
F.2d 401 (6th Cir. 1968), cited by the Appellants as support
for their argument that this Court should do a de novo
review of the record, is inapposite. In Goodrich, the Sixth
Circuit Court of Appeals held that the trial court’s findings
were insufficient to meet the requirements of Rule 52(a)
because the “scanty findings of fact” contained little more
than generalized conclusions . . B. F. Goodrich Com
pany v. Rubber Latex Products, Inc., 400 F.2d at 402-403. In
contradistinction, the District Court’s Findings of Fact in
this case were hardly scanty findings containing little more
than generalized conclusions. The District Court made one
hundred and ninety-nine (199) findings of fact. Each de
tailed finding was more than adequately supported by sub
stantial evidence. See, Appendix “A” .
Moreover, the Appellants aver that the trial judge
adopted “almost verbatim and in to to" the Appellees’ Pro
posed Findings of Fact and that he “did not independently
formulate even one [finding of fact]” .44 The Appellants are
wrong. Although the District Court adopted many of the
Appellees’ proposed findings, he took the time to consider
each, and to change or omit any findings with which he
disagreed.45
In short, the Appellants’ first appeal point is bogus. Their
44. Appellant’s Brief at 32.
45. For example, compare the N.L.R.B.’s Proposed Findings Nos. 9,19, 39,
126,136,167,170,232,237, and 240 with the District Court's Findings Nos. 9,18,
36, 98, 107, 132, 135, 192, 197, and 199. The District Court did not adopt the
N.L.R.B.’s Proposed Findings Nos. 17, 21, 67, 68, 69, 72, 73, 74, 75, 76, 77, 85,
86, 87 ,90,101,131,144,145,164,184,193,195, 206,217, and 238.
23
request for an independent, de novo review of the evidence
by this Court has no basis in either law or fact. Thus, this
appeal point should be denied and this Honorable Court
should apply the “clearly erroneous” standard to this
appeal.
A. The Ultimate Issue In Appeals Of Title VII Judgments
Is The Existence O f Discrimination.
The Appellants argue at length that the statistical evi
dence they adduced at trial established a prima facie case of
discrimination that the N.L.R.B. failed to rebut.46 This argu
ment is irrelevant in an appellate review of a Title VII
judgment. United States Postal Service Board o f Governors
v. Aikens, _____ U.S. _____ , 103 S. Ct. 1478 (1983);
Pullman-Standard v. Swint, 456 U.S. 273 (1982); Williams v.
Southwestern Bell Telephone Co., 718 F.2d 715 (5th Cir.
1983) (per curiam). In Williams, this Court noted that:
The three-fold analysis contemplated by [McDonald
Douglas Corp. v. Green, 411 U.S. 792 (1973)] and
[Texas Department o f Community Affairs v. Burdine,
450 U.S. 248 (1981)] . . .is not the proper vehicle for
evaluating a [Title VII] case that has been fully tried on
the merits. In such a case, as the Supreme Court re
cently pointed out in United States Postal Board of
Governors v. A ikens,_____ U .S .______ , 103 S.Ct.
1478, 75 L.Ed. 2d 403 (1983), for the litigants or the
courts to frame the issues in terms of whether the
plaintiff established a prima facie case “unnecessarily
evade[s] the ultimate question of discrimination vel
non." Id. at 1481. Thus, although the parties maintain
that our function is to evaluate the sufficiency of Wil
liams’ prima facie case and Bell’s rebuttal, it is clear that
this analysis would be inappropriate.
46. Appellant’s Brief at 37-54, 58-61.
24
Williams v. Southwestern Bell Telephone Co., 718 F.2d at
111. The Williams court went on to hold that:
The scope of our inquiry on appeal is . . .guided by
the Burdine-Aikens rationale. Because the ultimate
issue, that of discrimination vel non, is to be treated by
district and appellate courts in the same manner as any
other issue of fact, see Aikens, 103 S.Ct. at 1482, our
review is subject to the “clearly erroneous” standard of
Fed. R. Civ. P. 52(a). [citations ommitted]
Williams v. Southwestern Bell Telephone Co., 718 F.2d at
718. Thus, this Honorable Court should determine whether
the District Court’s judgment that the N.L.R.B. did not
discriminate against the class of Black professional employ
ees was clearly erroneous.
C. The Record Contains Substantial Evidence Supporting
The District Court’s Finding O f Nondiscrimination.47
1. The N.L.R.B. ’s Statistical Showing
Stated succinctly, the Appellants claimed that the
N.L.R.B. discriminated against Black field examiners and
attorneys by delaying their promotions and by denying them
supervisory positions. The Appellants adduced statistical
evidence48 that, they argued, showed Blacks to be dispro
portionately in lower grades and advancing at slower rates.
This result obtained, they argued, because of the
N.L.R.B.’s subjective appraisal system.
47. This section responds to Appellants’ second through fifth appeal points
because all of these points deal with the adequacy of the evidence. The Appel
lants have not raised, and this appeal does not involve, any errors of law or the
application of novel principles of law. Thus, this section seeks to assist the Court
in reviewing the voluminous record for the substantial evidence that supports the
District Court’s final judgment.
48. The Appellants’ statistical results are based on a statistical methodology
known as survival analysis.
25
The N.L.R.B. controverted the results of the Appellants’
statistical analysis and proffered legitimate, nondiscrimina-
tory explanations for the few employees who did, in fact,
take a long time to get promoted. Specifically, the
N.L.R.B.’s statistical expert (“Beckett”) testified that the
data base used by the Appellants was replete with errors that
skewed the results of the Appellants’ survival analysis.49
Beckett showed that the Appellants’ data base contained
individuals that were not members of the defined class such
as co-op program participants, student interns, and employ
ees that transferred into the N.L.R.B. with a downgrade.50
Beckett performed a survival analysis on the corrected
data base that manifested statistically significant disparities
in promotion rates for Blacks and Whites in only two grade
levels—the GS-11 level for field examiners and the GS-12
level for field attorneys. The other alleged disparities discov
ered by the Appellants’ analysis disappeared. For example,
the disparity in the GS-5 level for field examiners disap
peared after the co-op program participants were eliminated
49. Record at Vol. XV, pp. 162-167. Dr. Beckett, the N.L.R.B.’s expert
statistician, identified the errors as (1) incorrectly including non-class members
in the data base; (2) misidentifying employees’ race; and, (3) numerous key
punch errors. The key punch errors included incorrect starting and ending dates,
duplication of employees (double counting), misclassifying examiners as attor
neys and vice versa, and not accounting for interrupted service, e.g., leave
without pay.
50. Record at Vol. XV, pp. 162-176.
26
from the data base.51 The Appellants’ results for the GS-7
field attorney level also disappeared when student interns
were excluded.
Moreover, Beckett’s survival analysis showed that the
statistically significant result in the GS-11 field examiner
level and in the GS-12 field attorney level was due to only
eight employees.52 After identifying the employees and re
moving them from the data base, the analysis showed no
statistically significant disparities in these grade levels.
Thus, Beckett proved, by this procedure, that the eight
employees in the two grade levels caused the statistically
significant result.
Moreover, Beckett also presented the results of a cohort
analysis done on the corrected data base. The results of this
analysis agreed with the results of the survival analysis he
performed on the corrected data base. Thus, the Appel
lants’ glib assertion that Beckett “substantially agreed with
the conclusions of the plaintiff”53 is blatantly false.
51. Although the co-op student would become a field examiner upon success
ful completion of the program, Appellants’ study did not account for the time the
field examiner might have spent in the program. Therefore, a field examiner who
appeared to wait three or four years for a promotion would have actually spent
those years as a co-op student rather than as a field examiner waiting for a
promotion. For example, Theodore Colbert, Jr. is identified by Appellants as
having waited 3.9878 years for a promotion to GS-7. However, during this time,
Colbert was a co-op student. Record at Vol. XV, pp. 168-169. The corrected data
base shows that Colbert was converted to a career conditional appointment on
July 30, 1978 and, exactly one year later on July 30, 1979, he was promoted to
GS-7. See generally, Govt. Exs. 202A and 202B.
52. Beckett identified eight employees (four GS-11 Black field examiners and
four GS-12 Black field attorneys) as producing the statistically significant dispar
ity in the promotion rates.
53. Appellants’ Brief at 50.
27
The N.L.R.B. gave legitimate, nondiscriminatory expla
nations for the promotion problems of the employees that
skewed the results of Beckett’s survival analysis. The
N.L.R.B.’s explanation of these employees’ problems was
thorough and convincing. For example, the record shows
that the slow promotion rates of the eight employees at the
GS-11 field examiner level and the GS-12 field attorney
level were due to their poor work performance.54 The four
GS-11 field examiners identified were Frank Sanes, Felton
Miles, Miguel Gonzalez, and Warren L. Bryant, Jr. The
four GS-12 field attorneys were James L. Palmer, Barbara
A. Laners, Emmett G. Flardy, Jr., and Robert L. Flint.
Sanes was initially hired as a GS-9 law clerk trainee.55 He
did not pass the bar examination within the first fourteen
months of employment with the N.L.R.B. and was, there
fore, converted to a field examiner. His performance as a
field examiner was poor56 and it did not improve.
Miles’s analytical and writing abilities were poor.57 His
supervisors made a special effort to help him overcome his
serious deficiencies.58 The N.L.R.B. even paid a consultant
eight thousand dollars ($8,000.00) to develop and adminis
ter a special program designed to help Miles overcome his
deficiencies.59 Miles’s slow promotion history can hardly be
attributed to a racial motive in the face of this evidence.
54. Govt. Exs. 294-299. 409-413, 439-440, 449-450.
55. Record at Vol. XX, p. 5; Govt. Ex. 409.
56. Record at Vol. XX, pp. 12-14.
57. Govt. Ex. 295.
58. Record at Vol. XVIII, pp. 170-172.
59. Record at Vol. XVIII, pp. 167-169; Govt. Ex. 298.
28
Gonzalez’s problem revolved around his lack of knowl
edge of labor law and N.L.R.B. procedures.60 He spent too
much time investigating simple cases and could not clearly
define legal issues and do legal research efficiently.61
Bryant’s greatest weakness was his inability to write
well.62 63 He was urged to take remedial English and writing
courses at the N.L.R.B.’s expense62 but failed to do so
during the appraisal period of December 19, 1977 to Octo
ber 25,1978.64 This deficiency precluded Bryant from being
promoted to the journeyman level.65
Palmer’s work performance was egregiously bad. He
would refuse to perform work assigned to him;66 he would
fail to report to work;67 68 and, when he did report to work he
would do so consistently late. He would fail to complete his
work on time and would fail to obtain proper affidavits. He
would not properly investigate his cases.66 The N.L.R.B.
fired Palmer although his records were later changed to
indicate that he resigned.69
60. Govt. Ex. 440 C-D.
61. Govt. Ex. 440 D.
62. Govt. Ex. 450 B.
63. Govt. Ex. 450 C.
64. Id.
65. Govt. Ex. 450 A-C.
66. Govt. Exs. 443-444.
67. Govt. Ex. 447.
68. Record at Vol. XIX, p. 177; Govt. Exs. 441-442.
69. Govt. Exs. 445, 446, 448.
29
Laner’s slow promotion rate was due to her inability to
pass the bar examination within the first fourteen months of
her employment with the N.L.R.B. She was, therefore,
converted to a field examiner rather than fired.711 When she
finally passed the bar examination she was converted back
to a field attorney.70 71 72 Although she progressed steadily as a
field attorney, her promotions were retarded due to the
problems created by her inability to pass the bar.77
Hardy’s performance was poor due to deficiencies in his
pretrial preparation and his ability to prepare witnesses for
trial. Moreover, Hardy’s brief writing required close super
vision.73
Flint’s poor performance ratings were due to his inability
to complete work on a timely basis.74 Moreover, his writing
ability was poor.75 Nevertheless, Flint’s supervisor coun
seled and assisted him extensively in order to help him
overcome his deficiencies.76
In short, the N.L.R.B. showed that the Appellants’ statis
tical analysis was skewed due to an incorrect data base. The
N.L.R.B. proved that the statistically significant disparities
in the promotion rates between Black and White employees
were, at best, isolated to two grade levels. Thus, the Appel
lants failed to show by a preponderance of the evidence that
70. Record at Vol. XVIII, p. 175; Govt. Ex. 419 C.
71. Govt. Exs. 419 G-H.
72. Govt. Ex. 419 C.
73. Record at Vol. XIX, pp. 6-75; Govt. Ex. 406.
74. Govt. Exs. 279 B-C.
75. Govt. Exs. 279 C-D.
76. Govt. Ex. 279 D.
30
discrimination was the N.L.R.B.’s standard operating pro
cedure — “the regular rather than the unusual practice” .
International Brotherhood of Teamsters v. United States, 431
U.S. 324, 336 (1977). Moreover, the N.L.R.B. explained
these isolated disparities by giving legitimate, nondiscrimi-
natory explanations for the slow promotion rates of the eight
Black employees that were causing the statistically signifi
cant results. The Appellants adduced no evidence rebutting
these explanations. As a matter of law, the abundance of
substantial evidence contained in the record impelled the
District Court to conclude that the N.L.R.B. did not dis
criminate against its Black professional employees. Interna
tional Brotherhood o f Teamsters v. United States, 431 U.S.
324 (1977); Payne v. Travenol Laboratories, Inc., 673 F.2d
798 (5th Cir. 1982), cert, denied, 103 S.Ct. 451-452 (1982).
2. The Evidence Concerning Promotions To Supervisory
Positions.
The Appellants adduced no evidence showing, or tending
to show, discrimination in promotions to supervisory posi
tions. On the contrary, the Appellants' expert statistician
admitted that his survival analysis did not take into account
those individuals that had supervisory positions.77 78 The Ap
pellants own trial exhibits manifest no statistically significant
differences at the supervisory GS-13 attorney level and the
supervisory GS-13 field examiner level.™
77. Record at Vol. X, pp. 96-97.
78. PI. Ex. 5, Table IV — 1/1/72 — 7/31/81.
31
Despite the dearth of evidence in the record on this point,
the Appellants have nevertheless presented to this Court a
new analysis of supervisory promotions based on the de
scriptive data adduced at trial.™ This Court should not con
done the Appellants’ attempt at presenting, in an appeal, a
new statistical analysis that was not presented to the trial
court. The Appellants’ new statistical analysis does not have
the imprimatur of an expert statistician, and the N.L.R.B.
cannot test its validity by cross-examination. The Appel
lants’ introduction of this analysis at this stage of the litiga
tion is unconscionable. Therefore, this Court should
disregard it.
Notwithstanding the N.L.R.B.’s objection to the Appel
lants’ new statistical analysis, this Court should disregard the
analysis because it is flawed. First, the Appellants’ analysis
includes employees that are not in the defined class. This
occurs when the Appellants assume that three hundred
seventeen (317) supervisory positions exist below the Senior
Executive Service level. While the assumption is correct, the
use of this number in the analysis is incorrect because it
includes supervisory positions at the N.L.R.B. headquar
ters in Washington, D.C., which is not a part of the defined
class. Moreover, the Appellants do not distinguish between
the number of supervisory field examiners and the number
of supervisory attorneys included in the 317. The Appel
lants’ must make this differentiation because, in some re
gions, the field examiners do not supervise attorneys and 79
79. Appellants’ Brief at 18, 42.
32
can not bid on a position requiring the supervision of attor
neys.
Second, the Appellants’ assertion that “it is not necessary
for persons to apply for specific positions in order to be
considered for them” is false.80 Donald Lewis, the class
representative, was indeed aware of the need to apply for
supervisory positions. Lewis testified that “[i]f you are ap
plying for a supervisory position, you have to apply to be
considered for the position, once the announcement takes
place.”81 Moreover, in addition to applying for the supervi
sory position the employee must meet certain minimum
requirements to receive a promotion to a competitive super
visory position. The Collective Bargaining Agreement,
which the N.L.R.B. must follow, establishes these mini
mum requirements. For a supervisory field attorney posi
tion, the employee must at least be at the GS-13 or GS-14
grade level. For a supervisory field examiner position, the
employee must at least be at the GS-12 or GS-13 grade level.
Appellants assert that the minimum qualification for pro
motions to higher level supervisory and managerial posi
tions is the holding of positions in the lower levels.82 This
statement is disingenuously misleading. The lower levels
include the GS-5,7,9 and 11 levels.83 Under the terms of the
Collective Bargaining Agreement, employees at any of
these levels would not be eligible for supervisory positions.
80. Appellants’ Brief at 17.
81. Record at Vol. X, p. 137; See also, Record at Vol. XI, p. 29.
82. Appellants’ Brief at 46,
83. The agency is constrained in its career ladder promotions by the provi
sions of 5 C.F.R. 300.601. The provision is commonly referred to as the Whitten
Amendment. Pursuant to this amendment, a federal employee can advance but
one grade each twelve month period.
33
In short, an employee can not be considered for a supervi
sory position unless he responds to a posting announcing the
availability of a competitive supervisory position; he is at the
requisite minimum grade level; and he is rated well-
qualified.
Third, the Appellants assume in their analysis that the
available Black labor force equals ten percent (10%). No
support for this assumption exists in the record. In essence,
10% is a figment of the Appellants’ imagination. Addition
ally, the table in Footnote 14 of Appellants’ Brief is mean
ingless because it fails to show the proportion of Black and
White employees that are in the pool of qualified employees
in the upper grades from which supervisory promotions
must be made as required by the Collective Bargaining
Agreement. Thus, Footnote 14 fails to demonstrate that any
underrepresentation of Blacks in supervisory positions is
due to race because no meaningful conclusion can be made
without knowing the size and racial composition of the
available pool. Determining the appropriate pool is made
even more complex because under the Collective Bargain
ing Agreement there are two areas of consideration for
selection of supervisory positions. If a sufficient number of
34
qualified persons from the first area apply, selection will be
made from that group.84
Finally, the Appellants argue that “out of approximately
100 [supervisory] positions available in the varying regional
offices at any one time at most only one has been held by a
Black”.85 This argument ignores the available pool of candi
dates from which supervisors must be selected. Surely, the
Appellants are not implying that the N.L.R.B. must make
periodic wholesale removals of supervisors in order to cre
ate vacancies in the supervisory ranks.
The new statistical analyses presented by the Appellants
in their brief are classic examples of the pitfalls inherent in
an after-the-fact attempt to construct exhibits that should
have been adduced at trial through an expert. Appellants
counsel has attempted to draw inferences from descriptive
data. Statistical inference drawing is the job of the expert,
not the lay person. The Appellants give no explanation of
84. For example, Article VII of the Collective Bargaining Agreement for
1977-1979 states:
(f) Competitive Promotions for Field Examiners and Attorneys.
“Areas of consideration" which will be used in making selections for competi
tive promotions are set forth below . . .
In the event that the first areas of consideration, as described below, yields
five or more candidates who have stated that they will accept appointment to
the position to be filled, selection will be made from the first area . . .
If the first area does not yield the number of interested candidates indicated
above, resort may be made to the second area of consideration . . .
2.Grade GS-13, Supervisory Examiner
First Area — All GS-12 and GS-13 Examiners within the Regional Office
who are rated Well-Qualified for a supervisory position and write-in appli
cants who are rated Well-Qualified for a supervisory position.
Second Area — All GS-12 and GS-13 Examiners in the Agency who are
rated Well-Qualified for a supervisory position and who reply to a nation
wide posting.
See, P. Ex. 18.
85. Appellants’ Brief at 44.
35
the descriptive disparities and the calculations are so fatally
flawed as to be inconsequential.
3. The Performance Appraisal System
The Appellants argued at trial that the N.L.R.B.’s ap
praisal system did not provide a standard and objective
scheme for promotions; that supervisors had not written or
oral standards to guide them in preparing the appraisal; that
supervisors were not required to have first-hand knowledge
of the employee's work product or performance; and, that
supervisors were not trained to evaluate employees. The
record shows that the N.L.R.B.’s appraisal system was de
veloped by individuals who not only knew how to develop
appraisal systems but were also familiar with the N.L.R.B.
and the job positions for which the appraisals were devel
oped."6 Significantly, the Appellants’ expert admitted that
individuals with these qualifications could devise a better
appraisal system than an industrial psychologist."7
The N.L.R.B. adduced much substantial evidence about
its appraisal system. The evidence shows that supervisors
are keenly aware of their employee’s job duties because they
themselves have held the position they are supervising. In
addition, the N.L.R.B. trains its supervisors in how to eval
uate employees.86 87 88 To further guide the supervisor, the
N.L.R.B. distributes memos that instruct them on how to
prepare career development appraisals.89
86. R. Vol. XIV, p. 149-150; Vol. IV, p. 149-151.
87. Record at Vol. XIV, p. 146.
88. Record at Vol. XIV, p. 125; Govt. Ex. 239.
89. Govt. Ex. 239.
36
The N.L.R.B. adduced testimony from several supervi
sors about the training they received on how to properly
appraise employees.90 Supervisors maintain an exhaustive
case log for each employee they supervise. In addition,
supervisors keep a detailed record of the employee’s per
formance on his or her cases during the rating period.91
When the time comes for the supervisor to appraise the
employee, he does not rely solely on his memory.92 93
There are also important checks and balances built into
the appraisal system. The employee has the right to meet
with his or her first line supervisor and discuss the appraisal.
Class members testified that supervisors have modified ap
praisals based upon such discussions.92 Second, the appraisal
passes through several layers of review within the Regional
Offices, and the appraisals of GS-12 examiners and GS-13
attorneys are reviewed at headquarters. The employee has
the right to put written comments on any appraisal, which
comments become a part of the personnel records, and can
file a grievance over any adverse appraisal. The district
court believed the testimony of these witnesses and the
court’s findings should not be disturbed.
4. Lewis’s Individual Claim
The gravamen of Lewis’s individual claim was that the
N.L.R.B. discriminated against him by denying him a pro
motion to the GS-13 non-supervisory field examiner level.
Specifically, Lewis claimed that the application of the 50%
90. Record at Vol. XVI, pp. 181-182; Vol. XVII, pp. 87-88; Voi. XIX, pp. 18-
19, 72.
91. See, e.g., Govt. Ex. 417.
92. Record at Vol. XVI, pp. 181-182,195; Vol. XIX p. 72.
93. Record at Vol. XXI, p. 177.
37
rule94 was discriminatory because it blocked the promotional
opportunities of Blacks. Moreover, Lewis claimed that the
N.L.R.B. retaliated against him for filing an EEO com
plaint in which he averred that the 50% rule discriminated
against Blacks. The District Court disagreed with Lewis’s
contentions.
The record is replete with substantial evidence proving
that the N.L.R.B. did not discriminate against Lewis and
that the N.L.R.B. took no retaliatory action against him.
The evidence shows that Lewis knew of the 50% rule and
that his Director, Baldovin, advised him that he was not
being promoted because of the rule.95 The record contains
no evidence suggesting that the N.L.R.B. applied the rule to
Lewis any differently than it applied the rule to all other
employees. Baldovin advised Lewis in January, 1975 that he
would recommend him for a quality within grade salary
increase after he, Baldovin, was officially informed that the
94. Record at Vol. XIV, pp, 140-45; Vol. XIX, pp. 193-95; Vol. X, p. 138;
Govt. Ex. 415. In 1969 and 1970, the Civil Service Commission conducted a
nationwide audit of the N.L.R.B. Among other things, it found that more than
50% of the examiners were at the GS-13 level. In its report, issued in 1971, the
Commission questioned whether there was sufficient complex work to support
that large percentage of expert level examiners. The N.L.R.B. concluded upon
review that there was only enough expert level work to support a ration of 50%
expert level examiners. It further concluded that there was only enough expert
level work to justify 20% of the attorneys at the GS-14 level. The agency then
decided that no more than 50% of the nonsupervisory examiners and 20% of the
attorneys in anv single regional office could be at the expert level. Although
never put in writing, this policy became a matter of general knowledge.
95. Record at Vol. XI, pp. 34, 42.
38
50% rule blocked Lewis’s promotion.96 The increase was
based on Lewis’s performance in 1974. Baldovin actually
recommended Lewis for the increase in May, 197597 and the
increase was approved and took effect in July, 1975. The
evidence shows that the reason for Baldovin’s four month
delay in recommending Lewis for the increase was that he
(Baldovin) made such recommendations only once a year,
usually around June.98
Lewis further alleged that Baldovin retaliated against him
for filing the EEO complaint by assigning him to a Black
team headed by Robert Penrice, a Black supervisor. Lewis
contended that Baldovin attempted to “inveigle . . .
[Penrice into laying] the ground work for further action
against . . .him”99 100 The district court found the story about
Baldovin’s alleged attempt to create a Black team to be
completely incredible and at variance with the facts.111(1
Penrice testified that while he was in Beaumont preparing
for a trial, he was called by. the Regional Attorney and
instructed to drop everything and return to the office to
supervise a “Black team”.101 Both the Regional Attorney
and Baldovin denied giving such instructions and the docu
mentary evidence presented at trial does not support
Penrice’s story.102 103 The evidence showed that Penrice was
already acting supervisor of a team months before Lewis
was assigned to his supervision. Significantly, Penrice’s team
consisted of both Black and White employees.101
96. Record at Vol. XIX, pp. 196-199; Govt. Ex. 417D. Baldovin recommends
such salary increases for employees affected by the rule in order to lessen the
financial impact of the rule on them.
97. Govt. Ex. 418M.
98. Record at Vol. XIX, p. 197.
99. Appellants’ Brief at 28.
100. See, Finding, number 178.
101. Record at Vol. XIII, pp. 153-154.
102. Record at Vol. XIX, pp. 175-85; Vol. XX, pp. 30-32; Govt. Ex. 418A-D.
103. Govt. Exs. 418 A-D.
39
Finally, Lewis claimed that his 1976 rating (covering cal
endar year 1975) of not well-qualified for promotion to the
GS-13 level as motivated by race. However, the evidence
shows that Lewis had problems in case handling and that
Baldovin had noted his concerns over Lewis’s performance
as early as May, 19751'14 Baldovin testified that the rating was
based upon Lewis’s performance and was not motivated by
race.104 105 The court believed Baldovin. Lewis argued that his
“not well-qualified” rating caused him to be passed over for
promotion because, while he was rated not well-qualified, a
GS-13 slot that was previously blocked by the 50% rule
became vacant and that, but for the “not well-qualified”
rating, he would have received the promotion. The evidence
does not support Lewis’s contention. Baldovin testified that
at the time the position became available another employee
(“Markey”) had been rated “well-qualified” for the expert
level position longer than Lewis.106 The positions are filled
on the basis of who has waited the longest for the promo
tion. Even if Lewis had been rated “well-qualified” , he
would not have received the promotion ahead of Markey.
To this Lewis argued that Markey’s employee record card
does not reflect that Markey received his “well-qualified”
rating before Lewis did. This argument is misplaced. Expert
level positions are not considered competitive and receive
no performance rating from the review panel in Washing
ton. Thus, an employee’s performance rating would not be
reflected on the employee card Lewis relied upon. As a
matter of fact, Markey was rated “well-qualified” for the
promotion as early as August 29,1974,107 well before Lewis’s
104. Govt. Ex. 418-M.
105. Record at Vol. XIX, pp. 204-06.
106. Record at Vol. XIX, pp. 207-10.
107. Record at Vol. XIX, pp. 207-10.
40
January 22,1975 rating. Therefore, even if Lewis had been
rated well-qualified on February 29, 1976, Markey would
still have gotten the promotion because he was senior to
Lewis.
In short, the District Court heard substantial evidence,
adduced by credible witnesses, that supported its finding
that Lewis was not discriminated against by the N.L.R.B.
Therefore, the findings were not clearly erroneous.
APPELLEE’S SECOND REPLY POINT
(In Response to Appellant’s Sixth Appeal Point)
The District Court did not abuse its discretion in awarding
the government its costs.
District courts have the discretion to award costs to the
prevailing party. Fed. R. Civ. P. 54(d); 28 U.S.C. §1920.
The Appellants admit this to be the law.108 Costs can be, and
have been, awarded to the government, as a prevailing party
in Title VII cases. Thomas v. Secretary o f the Navy, 24 F.R.
Serv. 2d 727 (D. Col. 1977) (Rule 54(d) provides that any
prevailing party is entitled to costs unless the court directs
otherwise, and the United States stands in the same place as
a prevailing party as does any private party in civil litigation
in the federal courts). Review of a District Court’s discre
tionary award of costs is very narrow; the award can be
overturned “only when a clear abuse of discretion is
shown” . In re Nissan Antitrust Litigation, 577 F.2d 910, 918
108. Appellants’ Brief at 62.
41
(5th Cir. 1978), cert, denied sub. nom., P.D.Q., Inc. v.
Nissan Motor Corp., 439 U.S. 1072 (1978).
On February 8, 1983, the N.L.R.B. filed a bill of costs,
requesting the District Court to award it the following items
of cost:
Fees of the Marshal $ 28.92
Fees of the Court Reporter for all
or any part of the transcript nec
essarily detained for use in the
case 4,062.50
Fees for witnesses 7,152.65
Fees for exemplification and
copies of papers necessarily ob
tained for use in the case 687.00
Fees for notice to the class 1,358.76
TOTAL $13,289.83’
The District Court awarded these costs to the N.L.R.B. on
May 9,1983.1,0
The Appellants do not argue that the District Court
abused its discretion in awarding costs to the N.L.R.B.
Rather, they argue that they have been treated unjustly
because the Government did not follow the standard enun
ciated in a 1978 Department of Justice (“DOJ”) Memoran
dum that established guidelines for government attorneys to
follow when seeking costs in Title VII litigation. In essence,
the Appellants argue that they relied on that Memorandum
to their detriment.109 110 111
109. Record at Vol. IV, p. 44.
110. Record at Vol. IV, p. 2 et. seq.
111. Appellants’ Brief at 62-63.
42
No legal support exists for the Appellants’ argument. The
1978 DOJ Memorandum was neither a statute nor a regula
tion; it was simply a policy guide for use by government
attorneys."2 All of the cases cited by the Appellants in
support of their argument involved statutory amendments
or published agency regulations, not unpublished, internal
memoranda issued by DOJ solely to assist its attorneys. In
short, the Appellants have no standing to argue that they
detrimentally relied on the Memorandum.
Moreover, the Appellants wrongly aver that the District
Court “concluded that this lawsuit falls under the Christian
burg standards” .112 113 114 This is blatantly false. On the contrary,
the District Court said:
. . . Plaintiff argues that the Christianburg standard
should be applied in determining whether to award
costs to a prevailing Title VII Defendant. Defendant
correctly points out that Christianburg on its face dealt
only with an assessment of attorneys fees as a part of
costs. Subsequent cases cited by both parties also deal
only with the issue of attorneys fees.
The Court believes that it is within its discretion to
award costs, exclusive of attorneys fees, to the Title VII
Defendant. However, resolution of the dispute be
tween the parties as to the applicability of Christian
burg is not necessary. A review of the Court’s findings
and conclusions clearly supports a finding that Plain
tiffs claims, both individually and as to the class, were
baseless."4
112. Record at Vol. IV, pp. 15-16.
113. Appellants’ Brief at 64.
114. Record at Vol. IV, p.2.
43
Finally, the Appellants argue that awarding costs to the
Government in Title VII actions would have a “chilling
effect” on the filing of these types of action against the
Government.'15 The District Court correctly responded to
this argument by stating:
The Government was compelled to expend countless
personnel hours and significant sums of money to pre
pare for trial and attempt to negotiate a settlement over
a period of six years. Witnesses had to be brought in
from all over the country to refute the Appellants’ bald
allegations.
The Court is well aware of the policy arguments
regarding encouraging Title VII plaintiffs to bring suit
against discriminating employers. However, there are
also strong policy arguments for having plaintiffs who
put the Government to the time and expense of defend
ing classwide meritless claims, and who persist in prose
cuting their suit long after the invalidity of those claims
becomes apparent, to at least bear the costs of litiga
tion.115 116
In short, the District Judge, who presided over the lengthy
proceedings and who became intimately familiar with the
voluminous record, exercised his discretion in good faith
and did not abuse his discretion in awarding the Govern
ment a modest amount of its litigation costs. Therefore, this
Honorable Court should affirm the District Court’s award of
costs.
115. Appellants’ Brief at 65.
116. Record at Vol. IV, pp. 2-4.
44
CO N C LU SIO N
For the foregoing reasons, the N.L.R.B, urges this Hon-
orable Court to affirm the District Court’s final judgment
and to affirm the District Court’s award of costs to the
N.L.R.B.
Respectfully submitted,
DANIEL K. HEDGES
United States Attorney
JAMES R. GOUGH
C. J. “NEIL” CALNAN
JAVIER AGUILAR
By: JAVIER AGUILAR
Assistant United States Attorney
O f Counsel:
MARY A. DAFFIN
RAYMOND FORSTER,
Counsel, National Labor Relations Board
YVONNE DIXON
Counsel, National Labor Relations Board
45
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the forego
ing Brief for Appellee in preliminary form has been sent via
certified mail, return receipt requested, to Jack Greenberg,
Charles Stephen Ralston, and Gail J. Wright, at 10 Colum
bus Circle, Suite 2030, New York, New York 10019 on this
the 18th day of January, 1984, and two printed copies in final
form in like manner on the_____ day of January, 1984.
/s/ JAVIER AGUILAR
Assistant United States Attorney
46
A P P E N D IX A
TH E DISTRICT CO U RT’S FINDINGS OF FACT
W ITH CITATIONS TO THE RECORD
FINDINGS
OF FACT NO. RECORD CITE
1 Vol. XIV, pp. 97-98; Govt. Ex. 207; P.
Ex. 21,22.
2 Vol. XIV, pp. 97-99; Govt. Ex. 207,208.
3 Vol. XIV, p. 100; P. Ex. 26.
4 Vol. XIV, pp. 103-104, 108, 136-137;
Vol. XV, p. 52; Vol. XVI, p. 83.
5 Vol. XIV, p. 103.
6 Vol. XIV, pp. 103-108.
7 Vol. XIV, pp. 104-105.
8 Vol. XIV, p. 105.
9 Vol. XIV, pp. 105-106; Vol. XVI, pp.
119-120; Govt. Ex. 224, 225, 226.
10 Vol. XIV, p. 107; Vol. XVI, pp. 114-115,
117; Govt. Ex. 227.
11 Vol. XIV, pp. 111-112,161; Vol. XV, pp.
46-47, 55-56; Vol. XVI, pp. 86-87; Vol.
XVII, pp. 156-158; Vol. XIX, pp. 16-17;
Vol. XIX, pp. 163-167; Govt. Ex. 209.
12 Vol. XIV, p. 160; Govt. Ex. 211.
13 Vol. XIV, p. 110; Vol. XV, pp. 56-57;
Govt. Ex. 228-236.
14 Vol. XIV, p. I l l ; Vol. XVI, pp. 89-90;
Govt. Ex. 236.
47
15 Vol. XIV, pp. 164-166, 175, 205-206;
Vol. XVII, p, 21; Govt. Ex. 220-222.
16 Vol. XIV, pp. 112-116; Vol. XVII, p. 21;
Vol. XVIII, pp. 4-5; Vol. XVIII, p. 87;
Vol. XIX, pp. 18-19; Govt. Ex. 239,253.
17 Govt. Ex. 223.
18 Vol. XIV, p. 113; Vol. XVI, pp. 92-94,
96-97; Vol. XI, p. 2; Govt. Ex. 424.
19 Vol. XIV, pp. 116-118; Vol. XVI, pp. 99-
100,146; Govt. Ex. 425.
20 Vol. XVI, pp. 191-192; Vol. XVII, pp. 7,
17-20; Vol. XVII, pp. 158-166; Vol.
XVII, pp. 191-192; Vol. XVII, pp. 30-
32; Vol. XVIII, pp. 15-16; Vol. XVIII,
pp. 111-112; Vol. XIX, pp. 18, 27; Vol.
XIX, pp. 48-49; Govt. Ex. 414.
21 Vol. XIV, pp. 120-121; Vol. XVIII, p.
16; Vol. XI, pp. 2-4; Vol. XIII, pp. 16-
17.
23 Vol. XIV, pp. 149-151.
24 Vol. XIV, pp. 151-153; P. Ex. 25.
Vol. XIV, pp. 122-124, 151-153; Vol.
XVI, 181-182; Vol. XIX, p. 72; Govt.
Ex. 239.
25
48
26 Vol. XIV, pp. 124-125; Govt. Ex. 216,
217,218,239.
27 Vol. XIV, pp. 127, 135-136, 154-56;
Govt. Ex. 239.
28 Vol. XIV, pp. 122,126-128,130-32; Vol.
XIX, pp. 114-115; Vol. XI, p. 177; Vol.
XIII, p. 99; Govt. Ex. 216,217,218,219.
29 Vol. XIV, p. 129; Govt. Ex. 216, 217,
218.
30 Vol. XIV, p. 129; Govt. Ex. 216, 217,
281.
31 Vol. XIV, p. 141; P. Ex. 26.
32 Vol. XIV, pp. 124, 129-131, 141; Vol.
XVI, pp. 152-153, 155; Govt. Ex. 216,
217.218.
34 Vol. XIV, pp. 140-145; Vol. XIX, pp.
193-195; Vol. X, p. 138; Govt. Ex. 415.
35 Vol. XIV, pp. 145-146; Govt. Ex. 237.
36 Vol. XIV, pp. 146-147; Govt. Ex. 238.
37 Vol. XIV, pp. 146-147; Vol. XIX, pp.
195-196, 171-172,208-211.
38 Vol. XIX, pp. 210-211; Govt. Ex. 216,
217.218.
39 Vol. XIV, pp. 129-131; Govt. Ex. 216, p.
20; 217, p. 22; 218, pp. 34-35.
Vol. XIV, pp. 129-130; Vol. XVI, p. 103;
Govt. Ex. 216, 217, 218.
40
49
41 Vol. XIV, pp. 138-140; Vol. XV, pp. 33-
34, 37-38; Vol. X, p. 137; Vol. XI, p. 29;
Govt. Ex. 216,217,218.
43 Vol. XIV, p. 182; Vol. XV, pp. 33-34;
Vol. XIII, pp. 144, 179-181; Vol. XI, p.
110.
44 Vol. XV, p. 106; Vol. XVI. pp. 199-200;
Vol. XIX, p. 125; Vol. XX, pp. 24-25;
Govt. Ex. 216,217,218.
45 Vol. XV, pp. 103-104; Vol. XVI, pp.
107- 108, 110; Govt. Ex. 216, 217, 218.
46 Vol. XV, pp. 103-104; Vol. XVI, pp.
108- 113; Govt. Ex. 216, 217, 218.
47 Vol. XVI, p. 113; Vol. XVIII, pp. 203-
204; Vol. XIX, pp. 129-130; Vol. XIII, p.
83; Govt. Ex. 216,217, 218.
48 Vol. XVI, pp. 113-114; Govt. Ex. 241.
49 Vol. XI, pp. 143-144, 150; Govt. Ex.
216,217,218.
50 Govt. Ex. 216, 217, 218, 240.
51 Vol. XVI, pp. 124-126; Vol. XI, p. 71;
Govt. Ex. 426.
53 Vol. XIX, pp. 190-193, Vol. XIII, p. 196;
Govt. Ex. 441 through 448.
Vol. XIV, pp. 168-170.
Vol. XIV, pp. 212-215.
55
56
50
57 Vol. XIV, pp. 216-224; Vol. XV, pp. 14-
19, 24, 26; Vol. XVII, pp. 194-196; P.
Ex. 72.
58 Vol. XIV, pp. 191-193, 207-208; Vol.
XVIII, pp. 89-93, 108-109; Govt. Ex.
433.
59 Vol. XV, pp. 111-112; Vol. XVIII, pp.
102-108; Govt. Ex. 435.
60 Vol. XIV, pp. 166, 170-172; Vol. XVIII,
pp. 177-178, 193-194. 60; Vol. XVIII,
pp. 199-202; Vol. XIII, pp. 106, 111.
61 Vol. XIV, pp. 197-200, 210-211; Vol.
XV, pp. 6-7, 110, 111.
62 Vol. XIV, pp. 186-189; Vol. XV, pp. 12-
13.
79 (See citations for findings 29, 30, 23 and
24).
80 (See citations for findings 23 and 24).
81 Vol. XIV, pp. 46, 49-50.
82 (See citations for findings 21,25, 26).
83 (See citations for finding 25).
84 Vol. XV, pp. 68-70; Vol. XVIII, pp. 87-
88; Vol. XIX, pp. 18-19; Vol. VII, pp.
181-182; Vol. XIX, p. 71.
85 Vol. XVI, p. 195; Govt. Ex. 417.
87 (See citations for findings 24, 25).
88 (See citations for findings 27, 28).
51
89 (See citations for findings 27, 28).
90 (See citations for finding 27).
91 (See citations for findings 28,32,39,40).
92 (See citations for findings 27, 28, 32).
94 Vol. XVII, p. 14; Vol. XVIII, pp. 13-14.
95 Vol. XVIII, pp. 74-75; Govt. Ex. 298,
433.
96 Vol. XIV, p. 136; Vol. X, p. 127; Vol.
XI, pp. 2-5.
97 Vol. XI, p. 40; Vol. XI, p. 41; Vol. XIX,
pp. 187, 193; Govt. Ex. 417-D.
98 Vol. XI, pp. 21, 32; Vol. XI, pp. 34, 42;
Govt. Ex. 415.
99 Vol. XI, p. 109; Vol. XVI, pp. 122-24,
172-73; Vol. XIV, pp. 195-96, 209-211;
Govt. Ex. 422.
100 (See citation for finding 99).
101 Vol. X, p. 128; Vol. XIX, p. 210; Govt.
Ex. 418-K.
103 Vol. XIX, pp. 175-85; Vol. XX, pp. 30-
32.
104 Vol. XIX, pp. 184-85.
105 Vol. XI, pp. 31, 46.
106 Vol. XIX, pp. 196-199; Vol. XI, p. 54;
Govt. Ex. 417-L, M.
108 Govt. Ex. 417-E.
109 Vol. XI, pp. 87-89; Vol. XIX, pp. 204-
06; Govt. Ex. 418-M.
111 Vol. XIX, pp. 207-10.
112 Govt. Ex. 418-M.
113 Vol. XI, pp. 28-29.
116 Vol. XI, pp. 100,108-10.
117 Vol. XI, p. 110.
119 Vol. XIX, pp. 52-57, 85-86, 82-83.
120 Vol. XIX, pp. 69-73.
121 Vol. XI, pp- 144-47; Vol. XIX, pp. 58-
64, 75-78, 87,
122 Vol. XI, pp. 138-39.
123 Vol. XI, p. 100; Vol. XIX, pp. 65-69.
125 Vol. XVI, pp. 195-96; Vol. XIX, pp. 71-
72; Govt. Ex. 428.
126 Vol. XII, pp. 48-50, 97.
127 Vol. XII, pp. 52-54, 83-86, 101.
129 Vol. XVI, p. 215.
131 Vol. XVI, pp. 187-94, 206; Vol. XVII,
pp. 18-20.
Vol. XVI, pp. 181-86, 190-96; Vol.
XVII, pp. 20-21.
52
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
53
Vol. XVII, pp. 24-36, 43-45.
Vol. XI, pp. 177-79.
Vol. XI, p. 162; Vol. XVI, pp. 92-95.
Vol. XVII, pp. 78-81, 128; Govt. Ex.
270-B,C,D.
Vol. XVII, pp. 59-77,100-102, 107-109.
Vol. XVII, pp. 76-77, 85-86; P. Ex. 68.
Vol. XVII, pp. 78, 89-90,125.
Vol. XVII, pp. 135-39.
Vol. XII, pp. 19, 22; Vol. XVIII, pp. 15-
16; Vol. XVIII, pp. 111-112.
Vol. XII, pp. 23-26; Vol. XVIII, p. 40.
Vol. XII, pp. 39-40,17-18.
Vol. XVIII, pp. 4-10, 13, 39-44.
Vol. XVIII, pp. 10-13, 77-78.
Vol. XVIII, pp. 24-25,65,151.
Vol. XVIII, pp. 80-84; Vol. XIV, p. 164.
Vol. XVIII, pp. 112,110.
Vol. XIII, pp. 81-85, 88-89; Vol. XVIII,
pp. 203-206.
Vol. XIII, pp. 72-75, 88.
Vol. XVIII, pp. 203-206.
54
152 Vol. XVIII, pp. I l l , 145; Vol. Xli, pp.
109-110; Vol. XVII, pp. 16-17, 78; Govt.
Ex. 292, 292-A.
153 Vol. XVII, pp. 17-21, 65; Vol. XII, pp.
114-18.
154 Vol. XII, p. 114; Vol. XVIII, pp. 21-22;
Vol. XVIII, pp. 99-101; Vol. XVIII, pp.
22-23; Vol. XVIII, pp. 101-102; Vol.
XII, pp. 135-36; Vol. XVIII, pp. 22-25,
65; Vol. XVIII, p. 151.
156 Vol. XII, p. 122; Vol. XVIII, pp. 25-27.
157 Vol. XVIII, pp. 90-96.
158 Vol. XVIII, pp. 106-109; Vol. XIV, p.
193.
159 Vol. XVIII, pp. 87-89.
160 Vol. XII, p. 178; Vol. XIV, pp. 158-59;
Vol. XVI, pp. 118-22.
161 Vol. XII, p. 153.
163 Vol. XIX, pp. 105-06; Govt. Ex. 256-A.
164 Vol. XII, p. 167; Govt. Ex. 256-B.
165 Vol. XIX, pp. 135-149; Vol. XIX, pp.
100-103, 120-127; Govt. Ex. 256.
166 Vol. XIII, pp. 38-39; Vol. XVII, pp. 175-
79, 184,214-15.
167 Vol. XIII, pp. 10-11, 16-18, 37, 54; Vol.
XVII, pp. 171-73.
55
168 Vol. XIII, pp. 29-30, 62, 53; Vol. XVII,
pp. 182-95; Govt. Exs. 248, 277-A.
169 Vol. XIII, pp. 118-20.
170 Govt. Exs. 401-402.
171 Vol. XII, p. 99; Govt. Ex. 401.
172 Vol. XIII, pp. 114, 124-27, 136; Vol.
XVIII, pp. 177-79; Vol. XVIII, pp. 200-
202.
173 Vol. XVIII, pp. 197, 202, 208; Vol.
XVIII, pp. 173-74, 179.
174 Vol. XIII, pp. 118-19.
175 Vol. XIII, pp. 178-80.
176 Vol. XIII, p p . 170-72, 180; Vol. XVII,
p p . 144-45.
178 Vol. XIX, pp. 175-88; Vol. XX, pp. 30-
32; Govt. Exs. 418-A,B,C,D.
179 Vol. XX, pp. 5-8, 14, 18; Vol. XVI, pp.
118-19.
180 Vol. XX, pp. 11-13,18-19; Vol. XIX, pp.
21-28, 42.
181 Vol. XX, pp. 10-13,16-18,19-21.
183 Vol. XIX, pp. 92-98,114-16.
186 Vol. XX, pp. 161,171-73,185-88; Govt.
Ex. 298.
187 Vol. XX, pp. 168-69; Govt. Ex. 298.
188 Vol. XX, pp. 183,179.