Pullman Standard Incorporated v. Swint Respondent's Reply Brief for Petitioner

    No. 88-1601

In the

l&tprm* (Eflurt af tl\z 'Snttei Btstzb
October Term, 1989

Pullman-Standard,
Petitioner,

—v.—

Louis Swint, et al. ,
Respondents.

REPLY BRIEF OF PETITIO N ER

O f Counsel:
C.V. Stelzenmuller 
Burr & Forman 
3000 SouthTrust Tower 
Birmingham, Alabama 35203 
(205) 251-3000

* Floyd Abrams 
Thomas J. Kavaler 
Samuel Estreicher 
Taryn V. Shelton 
Peter Phillips

Cahill Gordon & Reindel 
(a partnership including 
professional corporations)
80 Pine Street
New York, New York 10005 
(212) 701-3000

* Counsel o f  Record fo r  
Petitioner

October 13, 1989



1

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES............................................. ii

ARGUMENT.........................     1

CONCLUSION.....................    7



ii

TABLE OF AUTHORITIES

Cases PAGE

Ducre v. Executive Officers o f Halter Marine, Inc., 752 
F.2d 976 (5th Cir. 1985)................................................. 3n

Edwardsville National Bank and Trust Co. v. Marion
Laboratories, Inc., 808 F.2d 648 (7th Cir. 1987)........ 3, 4

General Telephone Co. v. Falcon, 457 U.S. 147 (1982) . 1, 5

Goblav. Crestwood SchoolDist., 628 F. Supp. 43 (M.D.
Pa. 1985), a ff’d, 804 F.2d 1248 (3d Cir. 1986), cert, 
denied, 483 U.S. 1020 (1987)......................................... 6n

Isra Fruit Ltd. v. Agrexco Agricultural Export Co., 804 
F.2d 24 (2d Cir. 1986)....................................................  3

Larkin v. Pullman-Standard, 854 F.2d 1549, 1580 (11th 
Cir. 1988) (Swint XI), pet. fo r  cert, filed sub nom. 
Pullman-Standard v. Swint, 57 U.S.L.W. 3670 (U.S.
March 31, 1989) (Nos. 88-1601, 1602).........................  4-5

Miller v. Bolger, 802 F.2d 660 (3d Cir. 1986)............... 3-4, 3n

Owens v. Okure, 109 S. Ct. 573 (1989).......................... 2, 6, 7

Patterson v. McLean Credit Union, 109 S. Ct. 2363 
(1989)...............................................................................  2, 7

Pullman-Standard v. Swint (Swint VII), 456 U.S. 273 
(1982)...............................................................................  2, 6

Reconstruction Finance Corp. v. Tuolome Gold Dredg­
ing Corp., 137 F. Supp. 855 (N.D. Cal. 1953), a ff’d,
230 F.2d 479 (9th Cir.), cert, denied, 352 U.S. 832 
(1956)...............................................................................  6n

Santos v. District Council o f United Brotherhood o f Car­
penters, 619 F.2d 963 (2d Cir. 1980) 6n



PAGE

Simon v. G.D. Searle & Co., 816 F.2d 397 (8th Cir.), 
cert, denied, 484 U.S. 917 (1987)................................. 3n

Struble v. New Jersey Brewery Employees Welfare Trust 
Fund, 732 F.2d 325 (3d Cir. 1984)...............................  4

Swint v. Pullman-Standard (Swint IX),  No. CV 71-P- 
0955-S (N.D. Ala. Sept. 8, 1986).................................  3

Swint v. Pullman-Standard (Swint X ), No. CV 71-P- 
0955-S (N.D. Ala. Nov. 26, 1986)................... ...........  3, 6

Wards Cove Packing Co. v. Atonio, 109 S. Ct. 2115 
(1989).............................................................................   .passim

Watson v. Fort Worth Bank & Trust, 108 S. Ct. 2777 
(1988)........................................ .................................... 1, 2, 4

Constitutional Provisions
U.S. Const. Art. Ill ............ .......................... ................ .. 1,5

Rules
Federal Rules of Civil Procedure

Rule 23.........................................................................  2, 5
Rule 54(b)................................................   3

Statutes
Civil Rights Act of 1964

Title VII, 42 U.S.C. §§ 2000e et seq. (1982)........ .passim

Civil Rights Law
42 U.S.C. § 1981 (1982)...........................................passim

Judicial Code
28 U.S.C. § 1292(b) (Supp. V 1987)................. . 3, 4

iii



Treatise

R. Stern, E. Gressman & S. Shapiro, Supreme Court 
Practice (6th ed. 1986)..................................................



In the

BrtpmttT (Emtrf of tire IHmtsjb l& a ta
October Term, 1989 

No. 88-1601

Pullman-Standard,
Petitioner,

Louis Swint, et a l,
Respondents.

REPLY BRIEF OF PETITIONER

ARGUMENT

Respondents’ opposing brief simply does not take issue with 
the central propositions of the petition: (1) that the Eleventh 
Circuit below imposed liability on petitioner in a manner flatly 
at odds with this Court’s requirements for a prima facie dispar­
ate impact case and this Court’s articulation of the defense bur­
den, as initially set forth in the plurality opinion in Watson v. 
Fort Worth Bank & Trust, 108 S. Ct. 2777 (1988) and subse­
quently adopted by the majority in Wards Cove Packing Co. v. 
Atonio, 109 S. Ct. 2115 (1989); (2) that the Court of Appeals 
violated the strictures of General Telephone Co. v. Falcon, 457 
U.S. 147 (1982), and Article III of the Constitution in permit­
ting plaintiffs who were hired outside of the liability period and 
who never asserted individual claims of discriminatory denial of 
supervisory positions to serve as representatives of a class 
asserting such claims; (3) that the Court of Appeals ignored this



2

Court’s directive in Pullman-Standard v. Swint (Swint VII), 
456 U.S. 273 (1982), by reaffirming the de novo appellate fact­
finding that pervaded that court’s prior ruling; and (4) that the 
Eleventh Circuit applied a statute of limitations to respondents’ 
42 U.S.C. § 1981 (1982) claim that cannot stand in light of 
Owens v. Okure, 109 S. Ct. 573 (1989).

Conceding that these issues may be appropriately considered 
by this Court at some later point—presumably after years of 
backpay hearings for the thousand or more members of the 
class—respondents oppose the petition principally on the 
ground that a jurisdictional bar of sorts prevents review at this 
time. And where this supposed jurisdictional hurdle does not 
suffice, respondents attempt to dismiss the import of the ruling 
below by suggesting that critical conclusions of the Court of 
Appeals incontestably at variance with Wards Cove are “ dic­
tum” (Brief in Oppos., p. 8) or involve “ essentially fact- 
specific questions” (id. at 10); that petitioner’s objections to 
class representative standing of the named plaintiffs are “ now 
clearly moot” (id. at 13) and constitute an attack “ on Rule 23 
itself” (id. at 20); and that petitioner’s Owens v. Okure conten­
tion either has been waived or is in any event of “ somewhat lim­
ited” practical significance (id. at 21).

We respectfully submit that none of respondents’ arguments 
has the slightest merit, and that the petition—as respondents’ 
silence on the merits more than suggests—raises substantial 
questions concerning the appropriate ground rules for employ­
ment discrimination class actions in the post- Watson era. 
Should this Court deem it appropriate, however, to await fur­
ther developments in light of its rulings last Term in Wards 
Cove, Owens v. Okure, and Patterson v. McLean Credit 
Union, 109 S. Ct. 2363 (1989), we would urge that the judgment 
of the Court of Appeals be vacated and the case remanded to 
the Court of Appeals, directing that court to reconsider its deci­
sion in light of this Court’s recent pronouncements—ones that 
respondents tellingly dismiss as “ seemingly incessant changes in 
the law” (Brief in Oppos., p. 26).



3

1. The absence of supporting authority for respondents’ 
jurisdictional contention speaks for itself. The cases are legion 
to the effect that 28 U.S.C. § 1292(b) (Supp. V 1987) “ autho­
rizes certification of orders for interlocutory appeal, not certifi­
cation of questions.” Isra Fruit Ltd. v. Agrexco Agricultural 
Export Co., 804 F.2d 24, 25 (2d Cir. 1986) (emphasis in origi­
nal). As Judge Easterbrook recently observed in Edwardsville 
National Bank and Trust Co. v. Marion Laboratories, Inc., 808 
F.2d 648, 650 (7th Cir. 1987): “ The statute refers to certifying 
an ‘order’ for interlocutory appeal. It is not a method of certi­
fying questions. The question is the reason for the interlocutory 
appeal but the thing under review is the order.” (Emphasis in 
original)1

Here, the orders of the District Court appealed from reaf­
firmed the finding of liability with respect to the claim of dis­
crimination in supervisory selections and set the case for 
so-called “ Phase II” backpay hearings, see Swint v. Pullman- 
Standard (Swint IX),  No. CV 71-P-0955-S, slip op. at 7-8 (N.D. 
Ala. Sept. 8, 1986) (App. 269a); and, while reaffirming the 
finding of liability with respect to the initial assignment claim, 
entered judgment for petitioner in accordance with that court’s 
ruling as to the date commencing the liability period, see id. at 
11-14 (App. 273a-276a). The trial court then granted respon­
dents’ motion for entry of a final judgment under Fed. R. Civ. 
P. 54(b) on all claims other than the supervisor selection claim, 
and certified an appeal of its order adverse to petitioner on the 
latter claim. See Swint v. Pullman-Standard (Swint X ) , No. CV 
71-P-0955-S, slip op. at 1-2 (N.D. Ala. Nov. 26, 1986) (App. 
284a-285a). Accordingly, the Court of Appeals had authority 
“ to consider ‘all grounds advanced in support of the [orders 
reaffirming Pullman’s liability and entering final judgment 
against respondents] and all grounds suggested for’ [overturn­
ing those orders].” Miller v. Bolger, 802 F.2d 660, 666 (3d Cir.

1 Accord, e.g., Simon v. G.D. Searle & Co., 816 F.2d 397, 400 (8th 
Cir.), cert, denied, 484 U.S. 917 (1987) (“ the nature and scope of our 
review are not rigidly determined by the certified questions” ); Miller v. 
Bolger, 802 F.2d 660, 666 (3d Cir. 1986); Ducre v. Executive Officers 
o f  Halter Marine, Inc., 752 F.2d 976, 983 n.16 (5th Cir. 1985).



4

1986), quoting Struble v. New Jersey Brewery Employees Wel­
fare Trust Fund, 732 F.2d 325, 336 n.10 (3d Cir. 1984).

Accepting respondents’ restrictive view of the power of a 
Court of Appeals on a § 1292(b) appeal would place appellate 
courts in the untenable position of rendering advisory opinions 
on questions that may not be material to a proper review of the 
order before the court. To quote again from Judge Eas- 
terbrook:

“ Were things otherwise, there would be a substantial risk 
of producing an advisory opinion. If nothing turns on the 
answer to the question, it ought not be answered; on the 
other hand, once the interlocutory appeal has been 
accepted and the case fully briefed, it may be possible to 
decide the validity of the order without regard to the ques­
tion that promoted the appeal.’’ Edwardsville National 
Bank, supra, 808 F.2d at 651.

Respondents’ position would also undermine this Court’s 
acknowledged plenary authority to “ reach back and correct 
errors in the interlocutory proceedings below, even though no 
attempt was made to secure review of the interlocutory decree 
or even though such an attempt was made without success.” R. 
Stem, E. Gressman & S. Shapiro, Supreme Court Practice § 2.2 
(6th ed. 1986); see Brief in Oppos., pp. 6-7. Respondents 
advance no basis to conclude that the legal issues raised in the 
instant petition are not ripe for review at this time, or that any 
further light on those issues will be shed by inevitably pro­
tracted Phase II backpay hearings premised on findings of lia­
bility inconsistent with this Court’s controlling decisions.

2. Aside from raising this purported jurisdictional barrier to 
review, respondents are driven to recharacterize the ruling 
below in order to square the Eleventh Circuit’s holding with 
Wards Cove. It would surely come as a surprise to the judges on 
that panel that their insistence that “ [t]he burden—not just of 
production but of persuasion—was then on Pullman to show 
that the practice challenged arose from a non-discriminatory 
business necessity,” Larkin v. Pullman-Standard, 854 F.2d 
1549, 1580 (11th Cir. 1988) (Swint XI), pet. fo r  cert, filed sub



5

nom. Pullman-Standard v. Swint, 57 U.S.L.W. 3670 (U.S. 
March 31, 1989) (Nos. 88-1601, 1602) (App.53a) was mere 
“ dictum,” and that they were really holding “ that petitioner 
had failed to meet its burden of production.” (Brief in Oppos., 
p.8; emphasis in original). One also searches in vain for the 
faintest recognition by the appeals court that plaintiffs cannot 
simply level an attack on the “ bottom line” results of a subjec­
tive selection system but, rather, must meet a “ specific causa­
tion requirement” —“ a demonstration that specific elements of 
the [petitioner’s selection] process have a significantly disparate 
impact on nonwhites.” Wards Cove v. Atonio, supra, 109 S. 
Ct. at 2125.

3. As for the response to petitioner’s Falcon-class represent­
ative standing argument, respondents’ suggestion of mootness 
is illusory. The Court of Appeals, in reviewing the final judg­
ment entered against respondents on the initial assignment 
claim, essentially revived petitioner’s liability on that claim by 
enlarging the liability period. That court then proceeded to con­
sider, and reject, petitioner’s Falcon and constitutional stand­
ing objections. Those objections were properly before the 
Eleventh Circuit and they are properly before this Court.

Respondents also mischaracterize petitioner’s position as a 
wholesale attack on Rule 23 itself. Far from that, it is simply 
petitioner’s view that Falcon and Article III require that at the 
point of certification, the class representatives’ personal claims 
correspond to the claims they are asserting on behalf of the 
class. Such correspondence—essential to ensuring that the 
named plaintiffs will fairly and adequately represent the inter­
ests of the class—was absent here. Respondents’ discussion 
(Brief in Oppos., p. 16) fails to grapple with the fact that, at the 
time o f certification, the named plaintiffs had no personal 
claim of initial assignment discrimination because they were 
hired either before the enactment of Title VII or before the 
beginning of the relevant liability period.2 The lesson appar­

2 The named plaintiffs also had no personal stake in the supervisory 
selection claim because they never alleged an individual claim of dis­
criminatory denial of a supervisory promotion, and indeed respondent 
Swint had actively encouraged black employees to reject offers of pro­
motion to supervisor. See Petition at 4 n.8.



6

ently emerging from the Eleventh Circuit is that Falcon’s stric­
tures against “ across-the-board” certification may be readily 
evaded by attaching to a seniority system challenge objections 
to a host of other employment practices—as to which the 
named plaintiffs have no personal complaint—that somehow 
may impact on seniority entitlements.

4. Finally, concerning petitioner’s Owens v. Okure argu­
ment, it is misleading to suggest that this issue is of limited prac­
tical significance. If the applicable statute of limitations 
governing the § 1981 claim provides for a one-year period, peti­
tioner will face no liability on that claim—and thus no spectre 
of compensatory and punitive damages—because the complaint 
in this case was filed more than one year after any initial assign­
ment discrimination was found to have ended.

Respondents’ suggestion of waiver is similarly unfounded. 
Petitioner’s answer raised the defense of statute of limitations.3 
This was plainly understood by the District Court in its pre-trial 
order to be a defense “ based upon applicable statutes of limita­
tion.” Joint App., p. 30 in Nos. 80-1190 & 80-1193, Pullman- 
Standard v. Swint (Swint VII) 456 U.S. 273 (1982). In the 
District Court’s view, a one-year statute of limitations “ was 
incorporated into the class definition in the pretrial order” 
(Swint X , supra, at 2) (App. 280a), obviating any need on peti­
tioner’s part to amend its answer. Given the extensive consider­
ation of the various statutes of limitations proposed by both 
sides in this litigation, and the Court of Appeals’ reluctance to 
rest its decision on grounds of waiver, this Court is certainly

3 This is not a case where a defendant fails to raise the issue of statute 
of limitations at all. Hence the treatise citations in the opposition brief 
(Brief in Oppos., p. 23 n. 13) appear inapposite. See, e.g., Santos v. 
District Council o f  United Brotherhood o f  Carpenters, 619 F.2d 963, 
967 (2d Cir. 1980), citing Reconstruction Finance Corp. v. Tuolome 
Gold Dredging Corp., 137 F. Supp. 855, 862 (N.D. Cal. 1953), a ff’d, 
230 F.2d 479 (9th Cir.), cert, denied, 352 U.S. 832 (1956); Gobla v. 
Crestwood School Dist., 628 F. Supp. 43, 46 (M.D. Pa. 1985), a ff’d, 
804 F.2d 1248 (3d Cir. 1986), cert, denied, 483 U.S. 1020 (1987). 
Respondents here were placed on notice throughout the litigation that 
petitioner was challenging their compliance with the applicable statute 
of limitations.



7

free to consider the plainly important question of the retroac­
tive effect of Owens v. Okure.

CONCLUSION

For all the foregoing reasons and those stated in our initial 
papers, petitioner respectfully requests that its petition be 
granted or, in the alternative, that the judgment of the Court of 
Appeals be vacated and the case remanded for reconsideration 
in light of Wards Cove, Owens v. Okure and Patterson.4

Respectfully submitted,

* Floyd Abrams 
Thomas J. Kavaler 
Samuel Estreicher 
Taryn V. Shelton 
Peter Phillips
C a h il l  G o r d o n  & R e in d e l  
(a partnership including 
professional corporations)
80 Pine Street
New York, New York 10005 
(212) 701-3000
*Counsel o f  Record fo r  

Petitioner

O f Counsel:
C.V. Stelzenmuller 
B u r r  & F o r m a n  
3000 SouthTrust Tower 
Birmingham, Alabama 35203 
(205) 251-3000

October 13, 1989

4 The petition was filed before this Court’s decision in Patterson, and 
hence does not take account of that decision. Petitioner submits, how­
ever, that the Court of Appeals’ affirmation of Pullman’s liability 
under § 1981 raises the question whether discrimination in initial 
departmental assignments is actionable in any event under that statute, 
“ which covers only conduct at the initial formation of the 
contract. . . Patterson v. McLean Credit Union, supra, 109 S. Ct. 
at 2374.



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