Moody v. Albemarle Paper Company Motion for Leave to File Memorandum on Appropriateness of Certification form the Court of Appeals for the Fourth Circuit

    IN THE SUPREME COURT OF THE UNITED STATES 
October Term 1973 

No.

JOSEPH P. MOODY, et al.,
Appellants below, 
- vs -

ALBEMARLE PAPER COMPANY, et al.,
Appellees below.

BAXTER K. WILLIAMS, et al.,
Appellees below,

- vs -
THE ALBEMARLE CITY BOARD OF EDUCATION,

Appellant below.

Certificate From The United States Court of Appeals 
For The Fourth Circuit

MOTION FOR LEAVE TO FILE MEMORANDUM ON APPROPRIATENESS OF CERTIFICATION 
FROM THE COURT OF APPEALS FOR THE 

FOURTH CIRCUIT

The plaintiffs in these cases, Moody and Williams et 
als., respectively appellants and appellees below, hereby 
respectfully move that the Court grant them leave to file the 
Memorandum attached hereto. The annexed Memorandum sets out 
these plaintiffs' position as to the appropriateness of the 
exercise of this Court's certification jurisdiction in these 
cases. In support of this motion, these plaintiffs would show
the following reasons:



1. As the Certificate of the Court of Appeals for 
the Fourth Circuit states, the answer to the certified question 
may control that Court's decision on the merits of these cases.

2. There are substantial reasons to believe that the 
customary practice of the Court of Appeals for the Fourth Circuit, 
review of which is requested by the Certificate, is incon­
sistent with applicable provisions of the Judicial Code and 
practice in the other circuits.

3. For the reasons set forth in the annexed Memo­
randum, the question certified is appropriately framed and 
should be answered by this Court.

4. The Memorandum is submitted in typescript, with 
an original plus nine (9) copies, because Rule 29 of the Rules 
of this Court, governing procedure in certified cases, does not 
specify any particular format for briefs filed at this stage
of the certification proceeding.

WHEREFORE, plaintiffs Moody and Williams, et als., 
respectfully move the Court to grant them leave to file the 
annexed Memorandum.

Respectfully submitted.

ROBERT BELTON
East Independence Pla 951 S. Independence 
Charlotte, North Carol

JACK GREENBERG 
MORRIS J. BALLER 
BARRY L. GOLDSTEIN 
JOSEPH P. HUDSON

10 Columbus Circle New York, New York 10019
THOMAS T. CLAYTON

307 W. Franklin Street 
P. O. Box 236 
Warrenton, North Carolina

CONRAD O. PEARSON
203% E. Chapel Hill Street P. O. Box 1428 
Durham, North Carolina

Attorneys for Appellants Below Joseph P. Moody, et al., in No. 72-1267

f. LeVONNE CHAMBERS
East Independence Plaza 
951 S. Independence Blvd. Charlotte, North Carolina

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN

10 Columbus Circle
New York, New York 10019

CONRAD O. PEARSON
203% E. Chapel Hill Street 
P. O. Box 1428 
Durham, North Carolina

Attorneys for Appellees Below 
Baxter K. Williams, et al. in No. 73-1479



IN THE SUPREME COURT OF THE UNITED STATES 
October Term 1973 

No.

JOSEPH P. MOODY, et al.,
Appellants below, 

- vs -
ALBEMARLE PAPER COMPANY, et al,

Appellees below.

BAXTER K. WILLIAMS, et al.,
Appellees below,

- vs -
THE ALBEMARLE CITY BOARD OF EDUCATION,

Appellant below.

Certificate From Tbe United States Court of Appeals
For The Fourth Circuit

MEMORANDUM OF APPELLANTS MOODY ET AL. AND 
APPELLEES WILLIAMS ET AL. ON THE APPROPRIATENESS OF CERTIFICATION FROM THE 
COURT OF APPEALS FOR THE FOURTH CIRCUIT

The plaintiffs in these two cases involving racial 
discrimination in employment, Moody and Williams, et als., 
(respectively appellants and appellees below), respectfully 
urge that this Court should determine the question certified 
to it by the United States Court of Appeals for the Fourth
Circuit on December 6, 1973.

These parties plaintiff suggest that the cases present
an appropriate occasion for exercise of this Court's cert-



ification jurisdiction under 28 U.S.C. §1254(3), and that the 
answer to the certified question must be in the negative.

Statement of the Question
The question certified by the Court of Appeals for the 

Fourth Circuit in these cases is:
Under 28 U.S.C. §46 and Rule 35 of the Federal Rules of Appellate Procedure, 

may a senior circuit judge, a member of 
the initial hearing panel, vote in the 
determination of the question of whether 
or not the case should be heard en banc?

The Certificate of the Fourth Circuit fully and clearly
sets forth the circumstances under which the certified question
arose in these two cases. We will not reiterate them here.
Each case (but not, directly, the certified question) presents
crucial issues in the developing law of employment discrimi—

1/nation. The answer to the certified question may determine 
the outcome on the merits of each case, although the question 
itself does not touch on the facts or merits of either case.

1/ Although the facts going to the merits are not nec­
essarily involved in the certified question, we briefly sum­
marize what is at stake in these cases.

The Moody case is a class action attacking systemic 
practices of employment discrimination under Title VII of the 
Civil Rights Act of 1964, 42 U.S.C. §§2000e et seg.. The case 
arose at a paper manufacturing plant, and centered on allega­tions that the defendants were engaged in employment discrimi­
nation in the form of testing and educational requirements and 
a "lock-in" seniority system. The plaintiff class seeks in­
junctive relief and a compensatory back pay award. The district 
court found discrimination in the seniority system and the 
educational requirements, but held the testing program lawful 
under Griggs v. Duke Power Co., 401 U.S. 424 (1971), and denied 
back pay in the exercise of its discretion. On appeal, a panel 
of the Fourth Circuit reversed on testing, finding the testing 
program not demonstrably job—related, and reversed the denial 
of back pay, holding that the trial court’s discretion had been 
improperly exercised. The panel opinion is reported at 474 F.2d 134. The Court of Appeals en banc has reheard the case, 
but withheld decision pending resolution of the question certified to this Court. The case is crucially important to the 
law of employment discrimination. The testing issue presents the question of the exact meaning and applicability of Griggs, on a full factual record. On the back pay question hinges the 
availability of the most effective remedy for past discrimination, 
in a class action context.

2



Statutory Provision Involved
This case involved 28 U.S.C. §46, which provides, in 

relevant part, as follows:
(c) Cases and controversies shall be 

heard and determined by a court of not 
more than three judges, unless a hearing 
or rehearing before the court in banc is 
ordered by a majority of the judges of 
the circuit who are then in regular 
active service. A court in banc shall 
consist of all circuit judges in regular 
active service. A circuit judge of the 
circuit who "has retired from regular active service shall also be competent 
to sit as a judge in the rehearing of a 
case or controversy if he sat in the court or division at the original hear­
ing thereof.
The case also involves Rule 35 of the 
Federal Rules of Appellate Procedure, 
which provides in part:

(a) When Hearing or Rehearing In Banc 
Will Be Ordered. A majority of the cir­
cuit judges who are in regular active ser­
vice may order that an appeal or other proceeding be heard or reheard by the 
Court of Appeals in banc. Such a hearing 
or rehearing is not favored and ordinar­
ily will not be ordered except (1) when consideration by the full court is nec­
essary to secure or maintain uniformity 
of its decisions, or (2) when the pro­
ceeding involves a question of excep­
tional importance.

1/ (Continued)
Williams. a black high school principal's employment dis­

crimination action brought under 42 U.S.C. §1983, arose in the 
context of the desegregation of a dual school system. The 
plaintiff lost his job during the desegregation process. The district court found that he had suffered racial discrimination, 
and the panel of the Court of Appeals affirmed. The panel, 
however, vacated the trial court's back pay award to plaintiff. 
The panel based its decision on the duty to mitigate damages, 
and construed that duty to require acceptance of a demotion.The panel decision, reported at 485 F.2d 232, raises serious 
questions which will affect the principles applicable to com­putation of back pay awards in all employment cases. A petition for rehearing, with suggestion for rehearing en banc, i9 being 
held in abeyance pending resolution of the certified question.

From the Certificate, it appears that an affirmative answer to the certified question (or, perhaps, dismissal of the 
Certificate) would result in modification of the panel's back 
pay holding in Moody and affirmance of the panel's back pay denial in Williams.

3



(b) Suggestion of a Party for Hearing 
or Rehearing In Banc. The clerk shall trans­
mit any such suggestion to the judges of the 
court who are in regular active service but 
a vote will not be taken to determine whether 
the cause shall be heard or reheard in banc unless a judge in regular active service or 
a judge who was a member of the panel that 
rendered a decision sought to be reheard 
requests a vote on such a suggestion made 
by a party.

D I S C U S S I O N
1. The Supreme Court Should Exercise Itsjurisdiction to Decide the certified Question.
This Court does not favor frequent resort to the 

certification procedure of 28 U.S.C. §1254 (c); the procedure 
involves "action which is rather exceptional in the appellate 
field," Wheeler Lumber Bridge & Supply Co. v. United States,
281 U.S. 572, 576 (1930). Nevertheless, the Court has granted 
such certificates and rendered answers in appropriate cases.
See, e.g., United States v. Barnett, 376 U.S. 681 (1964), United 
States v. Rice, 327 U.S. 742 (1946), News Syndicate Co. v. New 
York Central Railroad, 275 U.S. 179 (1927). This is an appro­
priate case for the exercise of the Court's certification 
jurisdiction.

The Court of Appeals for the Fourth Circuit has care­
fully and narrowly framed the question as required by Rule 28

2/of the Rules of this Court. That the answer to the certified 
question of law may determine the outcome of the two cases is

2/ As it is posed, the question is properly specific, and
well avoids the objectionable generality that has caused this 
Court to dismiss other certificates. Cf. National Labor Relations Board v. White Swan Co., 313 U.S. 23, 27 (1941) ; White 
v. Johnson, 282 U.S. 367, 371 (1931). The question is neither hypothetical nor abstract, but presents an actual division on a 
concrete matter: which judges shall, under the relevant pro­
vision of the Judicial Code, participate in determining whether 
a Court of Appeals will reconsider one of its decisions, and 
possibly alter or reverse its previous judgment. Cf. National 
Labor Relations Board v. White Swan Co., supra. The Certificate 
frames a pure question of law, and there are no issues of fact 
lurking in the record on which the correct answer might turn.
Cf. Atlas Life Ins. Co. v. Southern, 306 U.S. 563, 571, 573 
(1939); Pflueger v. Sherman, 293 U.S. 55, 57-58 (1934); Triplett 
v. Lowell. 297 U.S. 638, 648 (1936). All the facts necessary to answer the question appear in the Certificate.

4 -



no bar to answering the question. United States v. ytayer, 235 
U.S. 55, 66 (1914) r Wheeler Lumber Bridge & Supply Co,, v. United 
States, supra. 281 U.S. at 577-578; News Syndicate Co. v. New 
York Central Railroad, supra, 275 U.S. at 188. On the contrary, 
since the question of pure law is appropriately framed here, 
this Court should seize the opportunity to expedite the dis­
position of the cases at this stage. In the absence of a clear- 
cut answer, the Fourth Circuit's decision —  whether by the 
panels or by the full Court —  would remain subject to doubt 
and further appeal based not on the merits, but on the issue 
of whether the en banc court of appeals was improperly convened 
or failed to be convened. If, however, this Court answers the 
certified question, the Fourth Circuit stands ready and willing 
to decide the difficult factual and legal issues of these com­
plex cases; it requests advice only to determine with finality
how the court is to be composed.

The certified question, involving as it does the pro­
priety of Senior Circuit Judges' voting on suggestions for
rehearing en banc, is of general importance and national con-

37cern, and the local insights of the Fourth Circuit Judges carry 
no special significance on this matter. Cf. Busby v. Electric 
Utilities Employees Union, 323 U.S. 72, 74 (1944). The basic 
composition of the Courts of Appeals in voting whether to con­
stitute themselves en banc should not be left to the accidents

3/ as the certificate recites, "Were the answer to the
question in each case of importance to the litigants only, the 
judges of the Court of Appeals for the Fourth Circuit, sitting 
en banc, could decide it . . .  . The question however in-volves”more than the rights of the litigants, for the duties and 
responsibilities of some of the judges of the court are in issue 
and relative powers of participation are at stake.

This passage well illustrates the necessity for Lhxs 
Court not to dismiss the Certificate, but to resolve the pro­
cedural question. Would the Senior Judges be included among 
"the judges of the Court of Appeals for the Fourth Circuit, sitting en banc"? Any answer given by that court would bo opon 
to the same division and uncertainty that gave rise to this 
Certificate.

5



of local custom or even, conceivably, to ad-hoc determination
4/by a succession of courts of changing composition. Congress 

has approved a statute, and this Court has promulgated a Rule, 
which are national in scope and appear to call for uniform 
application. The customary practice of the Fourth Circuit in 
allowing Senior Judges to vote is contrary to the language and 
apparent intent of the statute and rule, and inconsistent with 
the apparent practice of the other circuits (see part 2 below). 
Failure to accept the question would encourage disparate local 
interpretations of a single federal text, where uniformity is 
both intended and desirable.

Any results in these cases which are based on the 
Fourth Circuit's local interpretations alone, rather than on 
uniformity of practice or this Court's approval of local 
deviations from uniformity, would remain open to serious ques­
tion. For these reasons, certification is here "advisable in

4/ The line of decisions by this Court holding that the
Courts of Appeals should have authority to formulate and admin­
ister their own procedural rules concerning rehearings eii banc 
does not imply otherwise. See, e.g., Western Pacific Railway 
Corn, v. Western Pacific Railway Co.. 345 U.S. 217 (1952); United 
States v. American-Foreign Steamship Association, 363 U.S. 685 
(1960); Shenker v. Baltimore & Ohio R. Co.. 374 U.S. 1 (1963).
The Western Pacific decision, which fathered the line, specifi­cally dealt with the purely "house-keeping" functions of the Court of Appeals, 345 U.S. at 255-256. That case and the follow­
ing decision in Shenker revolved essentially around the purely 
procedural question of whether a litigant can dictate to an 
appellate court what method it shall use to determine whether a 
majority of active judges desire en banc consideration. (Specifi
cally, the question was whether each active judge of the court 
was required to vote on the suggestion for en banc consideration.) 
The Court concluded that the administrative machinery for 
determining the majority was the appeals courts' own "house­
keeping" business, as the 1948 Judicial Code Reviser had con­
templated. It nowhere questioned the assumption that the 
majority involved was of active circuit judges only. The American-Foreign case had nothing to do with the issue as to how 
an en banc hearing may be convened; it dealt only with the 
competency of a retired judge to sit on the rehearing en banc 
on the merits of the case. 363 U.S. at 688. Moreover, the result in American-Foreign was specifically overruled by 
Congress in the 1963 amendment to 28 U.S.C. §46(c).

6



the proper administration and expedition of judicial business, 
Wisniewski v. United States, 353 U.S. 901, 902 (1957); see also
United States v. American-Foreign Steamship Association, 363 
U.S. 685, 687 (1960).

2. The Question Certified Should Be Answered 
In The Negative.

On its face, the first sentence of 28 U.S.C. §46(c) 
states: only "circuit judges of the circuit who are in regular 
active service" are competent to vote on a suggestion of 
rehearing eri banc. Congress could not simply have failed to 
turn its attention to the role of Senior Judges in en banc 
proceedings. The third sentence of §46 (c), concerning part­
icipation on rehearing once the rehearing has been granted, 
specifically provides for a "circuit judge of the circuit who 
has retired from regular active service . . . [who] sat in the
court at the original hearing thereof". Other than the power 
to participate once rehearing has been ordered, the statute 
gives no other power to Senior Judges.

The legislative history of §46 (c) supports this plain 
reading of the statutory language. The present Section is the 
result of a 1964 amendment of the previous provision, which 
dated from the 1948 revision of the Judicial Code. The 1948 
statute had clarified the Courts of Appeals' power to constitute 
themselves en banc, by legislatively adopting Textile Mills 
Security Corp. v. Commissioner, 314 U.S. 326 (1941). It did not 
explicitly address the question of the role of Senior Judges 
upon rehearing. A decision of this Court thereafter construed 
§46 (c) to preclude the participation of Senior Judges as part 
of the Court en banc, once rehearing en banc had been ordered, 
even where the Judge had been a member of the initial panel 
(and had retired following the panel decision). United States 
v. American-Foreign Steamship Association, 363 U.S. 685 (1960). 
In that opinion, this Court openly invited Congress to change

7



that result legislatively, 363 U.S. at 690-691. In 1963, Congress 
enacted P.L. 88-176, 77 Stat. 331, "Judges - Status After 
Retirement", "An Act to clarify the status of circuit and dis­
trict judges retired from regular active service". The enact­
ment amended, inter alia, §46(c), modifying slightly its then- 
existing two sentences, and adding a third which changed the 
American-Foreign result by providing for participation of 
Senior Judges of the Circuit who had sat on the panel, once the 
en banc rehearing is ordered.

It is significant that Congress examined and slightly 
redrafted the first sentence, which states the conditions upon 
which eii banc rehearings may be ordered, without mentioning 
Senior Judges. The purpose of the 1963 amendment of §46 (c) was 
only to "permit such a [Senior] Judge to sit on a rehearing en 
banc of a case where he participated at the original hearing 
thereof," and specifically to reverse American-Foreign, U.S. 
Code, Cong. & Administrative News, 88th Cong., First Session,

5/pp. 1105-1106.
The text of Rule 35, Federal Rules of Appellate Pro-

6/cedure, points equally clearly to the same conclusion. Rule 
35 (a) provides for eji banc sittings only when a "majority of 
the circuit judges who are in regular active service" so order.

5/ The same Senate-House report quoted here continues,
shortly after the cited passage:

It is believed that [a] Judge who has 
sat on an issue in an appellate hearing on which a_ rehearing has been ordered should 
be a member of the court for rehearing 
purposes. Id. (emphasis supplied)

6/ Rule 35, like the other Federal Rules of Appellate
Procedure, was not designed to modify or amend the substance of underlying legislation such as §46(c), but to implement it.

8



Rule 35(b) directs that the clerk, upon receipt of a party's
suggestion of a rehearing en banc, "shall transmit any such
suggestion to the judges of the court who are in regular active
service." The framers of the Rule clearly intended thereby
not to authorize Senior Judges from the panel to vote on the
question of whether to convene an en banc court. This becomes
plain from the next sentence of Rule 35 (b), which specifically
allows Senior [or other] Judges who sat on the panel to request
a vote on a party's suggestion of en banc consideration.
Similarly, the Advisory Committee's Note to Rule 35 states that

The rule merely authorizes a suggestion, imposes a time limit on suggestions for 
rehearings en banc, and provides that 
suggestions will be directed to judges 
of the court in regular active service.

9 Moore's Federal Practice ^335.01[2] (2nd Ed., 1973), p. 4102.
The other Courts of Appeals appear to construe §46(c) 

and Rule 35 to require a practice different from the one pre­
sented in these cases. Only the Fourth Circuit follows the 
practice of allowing Senior Judges who were members of the panel 
to vote on whether the Court should sit eri banc. Third Circuit 
Local Rule 2(3) closely follows the language of §46 (c), dis­
tinguishing between Senior Judges' participation in the deter­
mination of whether to hear the case en banc and that of how 
to decide it when the Court sits en banc. 28 U.S.C.A. (1969),
Federal Rules of Appellate Procedure, United States Court of 
Appeals Rules, p. 317. Fifth Circuit Local Rule 12 recites 
the last two sentences of §46(c), and adopts §46(c) by re­
ference. Id. at p. 353. That Court's decision in Allen v. 
Johnson, 391 F.2d 527 (1968) reflects the Court's understanding 
that the rule excludes Senior Judges from voting on whether to

9



convene the Court en banc. Sixth Circuit Local Rule 3 (b)V

contains virtually the same language as Fifth Circuit Rule 12.
28 U.S.C.A. (1969), id. at p. 369. Eighth Circuit Local Rule 7,
adopted effective July 1, 1973, specifically provides that a
"majority of the judges of this Court in regular active service
who are actively participating in the affairs of the Court and
are not disqualified in the particular case or controversy may
order a hearing or rehearing in. banc. " 479 F.2d LXVIII, LXXV.
Second Circuit practice is not specifically governed by local
rule, but is clearly the same. See zahn v. International Paper
Co., 469 F.2d 1033, 1040 (2nd Cir. 1973) (on petition for
rehearing en banc), aff'd on merits, 42 LW 4087 (December 17,

8/1973). (The other circuits have no explicit rules or autho­
ritative decisions that our research has uncovered.)

Sound judicial policy dictates a negative answer to 
the certified question. The principal purpose of providing for 
en banc rehearing of panel decisions is to assure consistency 
of the law within a circuit, or as this Court has put it,

To enable the court to maintain its 
integrity as an institution by making 
it possible for a majority of its 
judges always to control and thereby 
to secure uniformity and continuity 
in its decisions.

7/ Allen says, in construing the 1963 amendment to §46(c),
". . . Second, en bancs can be ordered only by active judges.
Third, ordinarily only active judges will constitute the Court. 
But fourth, where a Senior Judge has been assigned to and sits 
on a three—judge panel to which a case has been submitted for decision, such a judge is to be included in any subsequent en 
banc consideration of the case." 391 F.2d at 532 (dicta).
8/ In denying rehearing en banc, a plurality wrote for the
court that "§46 (c), the governing statute, provides that a 
Senior Judge may, in the event the case is reheard en banc, 
vote on the merits of the appeal." 469 F.2d at 1040 (dictum). The same plurality notes the circumstance that Senior Judges 
may not vote on whether to hear a case en banc, but may vote 
if the en banc court is convened by the active judges. 469 
F.2d at 1041.

10



United States v. American-Foreign Steamship Association, supra.
363 U.S. at 689-690. This purpose is not served, and may well 
be hindered, by allowing Senior Judges to participate in the 
determination as to when a panel decision is so out of line 
with the views of the majority of the Court responsible for its 
"integrity as an institution" - the active members of the

9/Court - that review by the whole court becomes necessary.
The ongoing general responsibility for the judicial work of the

10/
circuit is vested in the active judges. They have the con­
tinuing duty to develop and apply the law in cases that will 
be adjudicated in the future. This Court in American-Foreign 
described active judges as being "those charged with the 
administration and development of the law," 363 U.S. at 689, 
and recognized approvingly that

the evident policy of the statute 
[old §46] was to provide 'that the 
active circuit judges shall deter­
mine the major doctrinal trends of 
the future for their court. . . .'363 U.S. at 690.

(quoting opinion in same case below, 265 F.2d 136, 155 (2nd 
Cir. 1957) .

9/ In American-Foreign the Court wrote that "Congress may
well have thought that it would frustrate a basic purpose of the 
legislation not to confine the power of en banc decision to the 
permanent active membership of a Court of Appeals," 363 U.S. at 
689. As shown at pp. 7-8, supra, nothing in the text or 
legislative history of the 1963 amendment to §46 (c) indicates 
that Congress had changed its mind, with respect to the narrow 
issue posed by the present Certificate.
10/ 28 U.S.C. §43(b) states flatly, "Each Court of Appeals
shall consist of the circuit judges of the circuit in regular 
active service." In contrast, §43 (b) provides that Senior 
Circuit Judges may participate to a limited extent in the work 
of the circuit: "[t]he circuit justice and justices or judges
designated or assigned shall also be competent to sit as judges 
of the court."

11



In contrast, retired Circuit Judges do not exercise 
the same continuing responsibility for the work of the court

11/as a whole. The rationale for retired judges' participation 
at en banc rehearings of causes in which they sat on the panel 
is significantly different from the rationale for the eri banc 
proceeding as a whole. Chief Judge Brown of the Fifth Circuit 
has articulated the principal reason as "the benefit which the 
entire Court obtains from the prior work, research, study 
and deliberation done by a Senior Judge during his (and his two 
colleagues') initial consideration of the case." Allen v. 
Johnson, supra at 531; see also pd. at 529. This rationale, 
however, comes fully into play only after the decision to con­
vene en banc has been made, when the whole court addresses the 
merits of the case before it with full deliberation.

For the reasons summarized above, we believe it clear
that the Fourth Circuit's custom contravenes both established

12/rules and good policy. The construction placed on §46(c) by

11/ See n.10, supra. Senior Judges sit pursuant to 28 U.S.C.
§43 (b) when "designated or assigned". A retired judge is "des­
ignated and assigned" by the Chief Judge of the Circuit "to per­
form such duties as he is willing and able to undertake" pursuant 
to 28 U.S.C. §294 (c). Section 294 (c) provides, "No retired 
justice or judge shall perform judicial duties except when de­
signated and assigned." From this statutory scheme, it is 
apparent that Senior Judges of the Circuit are not regarded as 
members of the court generally, but have a separate, limited 
status. See also 28 U.S.C. §295 (assignment and designation 
of Senior Judges to sit may be revoked).
12/ But even if the Fourth Circuit's practice were desirable,
it would be contrary to present law. This Court has indicated 
that change, if any, must come by statute, when it upheld the 
plain meaning of the old, flawed §46 (c) as being correct although 
not desirable in United States v. American-Foreign Steamship Association, supra, at 490-491. (After that decision, Congress 
addressed and resolved the problem in an appropriate manner, see 
pp. 7 - 8 ,  supra.) Likewise, the dissenters in Zahn v. Inter­
national Paper Co., supra, while not disputing what present 
§46 (c) means and vigorously expressing their dissatisfaction with that meaning, joined the majority in calling for Congressional 
review of what the majority described as "its apparent in­
consistency, " 469 F.2d 1041, 1042 n.l.

12



the Fourth Circuit is not reconcilable with the statute, its
13/history or its purpose. This Court should so hold.

C O N C L U S  I O N
We urge the Court to exercise its jurisdiction to answer 

the question certified by the Court of Appeals for the Fourth 
Circuit, and we submit that the proper answer is in the negative.

Respectfully submitted.

J. LEVONNE CHAMBERSEast Independence Plaza 
951 S. Independence 

Boulevard
Charlotte, North Carolina

JACK GREENBERG JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 10 Columbus Circle 

New York, N.Y. 10019
CONRAD O. PEARSON203*j E. Chapel Hill 

Street
P.0. Box 1428Durham, N. Carolina 27702

ROBERT BELTON \East Independence Placa 
951 S. Independence B£vd. 
Charlotte, North Carolina 28202

JACK GREENBERG 
MORRIS J. BALLER BARRY L. GOLDSTEIN 
JOSEPH P. HUDSON10 Columbus Circle

New York, New York 10019
THOMAS T. CLAYTON307 W. Franklin Street 

P.O. Box 236Warrenton, North Carolina 27589
CONRAD O. PEARSON203*5 E* Chapel Hill Street 

P.O. Box 1428Durham, North Carolina 27702

Attorneys forAppellees Below 
Baxter K. Williams, 
et al., in No. 73-1479

Attorneys for Appellants Below 
Joseph P. Moody, et al. in 
No. 72-1267

13/ Indeed, the Certificate indicates that the practice ofthe Fourth Circuit may not have been premised upon full delib­
eration. Its "custom", although "thought reasonable", appar­
ently had not been subjected to a "close examination" of 
§46 (c) and Rule 35.

13-



CERTIFICATE OF SERVICE

I hereby certify that I served the foregoing Motion 
For Leave to File Memorandum on the Appropriateness of 
Certification From The Court of Appeals For The Fourth Circuit, 
and the foregoing Memorandum of Appellants Moody, et al. and 
Williams, et al. on the Appropriateness of Certification From 
the Court of Appeals for the Fourth Circuit, upon all counsel 
for defendants in both actions, as listed below, by placing 
copies of the said Motion and Memorandum in the United States 
Mail, airmail postage prepaid, this i.7 day of December, 1973.

Francis V. Lowden, Esq.
Hunton, Williams, Gay & Gibson 700 East Main Street 
Richmond, Virginia 23219
Warren Woods, Esq.Wilson, Woods & Villalon 
Suite 1032 Pennsylvania Building 
Pennsylvania Avenue & 13th Street Washington, D.C. 20004
Gordon G. Busdicker, Esq.Faegre & Benson
1300 Northwestern Bank Building 
Minneapolis, Minnesota 55402
Charles F. Blanchard, Esq.
Yardborough, Blanchard, Tucker & Denson 1112 Branch Bank Building 
Drawer 30
Raleigh, North Carolina
Julian R. Allsbrook, Esq.Post Office Box 108 
Kidd Building
Roanoke Rapids, North Carolina 27870
David L. Rose, Esq.
United States Department of JusticeWashington, D.C. 20530
Richard L. Brown, Jr., Esq. 
Brown, Brown, & Brown Post Office Drawer 400 Albemarle, North Carolina

Richard Lane Brown, Esq. 
Brown, Brown & Brown Post Office Drawer 400 
Albemarle, North Caroline

Attorney for Plaintif