Lawler v. Alexander Brief for Plaintiffs-Appellants

    J'

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

r
No. 81-7702« <

i. > JOSEPH C. LAWLER, et al. ,
Plaintiff-Appellants,

v.
CLIFFORD ALEXANDER, as 
Secretary of the Department 
of the Army,

Defendant-Appellee.

I

V

On Appeal from the United States 
District Court for the Northern 

District of Alabama

BRIEF FOR PLAINTIFFS-APPELLANTS
t

BRENT E. SIMMONS
806 15th Street, N.W.
Suite 940
Washington, D.C. 20005

VANZETTA PENN DURANT 
639 Martha Street 
Montgomery, Alabama 36108

CHARLES STEPHEN RALSTON 
JACK GREENBERG

10 Columbus Circle 
Suite 2030

I' New York, New York 10019
«

Counsel for Plaintiffs-Appellants

4



CERTIFICATE OF INTERESTED PERSONS

Pursuant to Interim Rule 22(f)(2) of the U.S. Court of
Appeals for the Eleventh Circuit, counsel for plaintiffs-

* appellants certifies the following as a complete list of
interested parties to this action:

1. As plaintiffs-appellants:
JOSEPH C. LAWLER 
TIMOTHY E. GOGGINS 
CHARLES L. BRYANT 
LOUIE TURNER, JR.
BETTY BAILEY 
McCORDIS BARCLAY, JR.
BOBBY L. MURPHY 
CLYDE WOODARD 
JACK HEATH, JR.
DENNIS R. THOMAS 
CHARLOTTE ACKLIN 
WAYNE M . GARRETT

9 JEANETTE SIMMONS
RALPH E. DRISKELL

' * 2. As defendant-appellees:
JOHN 0. MARSH, JR., as

' Secretary of the Army
JOHN D. GRANGER, as

Commanding General, Ft. McClellan 
DAVID M. PARKER, as

Civilian Personnel Officer,
Ft. McClellan, and his agents.

BRENT E. SIMMONS
Counsel of Record for 

Plaintiffs-Appellants

J

1



STATEMENT REGARDING ORAL ARGUMENT

The plaintiffs-appellants request oral argument of this 
appeal. This action raises substantial and complex questions 
of law regarding the appropriate standards of proof in pat­
tern and practice class actions, brought under Title VII of 
the 1964 Civil Rights Act.

Notwithstanding extensive evidence of gross and increasing 
racial disparities in workforce compositions and in promotions 
at a federal installation, the district court found no dis­
crimination on the basis of erroneous evidentiary standards, 
an improperly certified class, and an unduly restrictive 
factual inquiry.

Oral argument will facilitate resolution of these issues.



TABLE OP CONTENTS

Page
Certificate of Interested Persons .....................  i
Statement Regarding Oral Argument .....................  ii
Table of Authorities ...................................  v
Statement of Issues ....................................  1
Statement of the Case ..................................  2

A. Course of Proceedings and Disposition
in the Courts Below ..........................  2

B. Statement of the Facts .......................  4
Summary of the Argument ................................ 20
Argument

I. The District Court Abused Its Discretion In 
Recertifying The Class To Exclude Non-
ref erred Black Applicants For Promotion .....  21

II. Plaintiffs' Statistical Evidence Establishes 
A Clear Pattern And Practice Of Racially 
Discriminatory Treatment Of Blacks In The 
Operation Of Defendant's Merit Promotion 
System ........................................  23
A. Plaintiffs' Statistical Evidence 

Established A Prima Facie Case Of
Discrimination ............................ 23

B. The Defendant Did Not Rebut Plaintiffs'
Prima Facie Case .........................  26

C. The District Court's Erroneous Analysis
Of The Evidence ..........................  31

III. Plaintiffs' Statistical Evidence Also
Establishes Adverse Impact In The Operation 
Of Defendant's Merit Promotion System .......  34

- iii -



Page

IV. Defendant's Failure To Take Effective
Measures To Correct The Maldistribution 
Of Blacks In Its Workforce Is An Inde­
pendent Violation Of Section 717 ............ 35

V. Defendant Failed To Meet The Required 
Burden To Rebut The Individual Claims
Of Plaintiff Class Members ..................  42

vConclusion ............................................. 55

iv -



TABLE OF AUTHORITIES

Cases: Page

Baxter v. Savannah Sugar Refining
Corp., 495 F .2d 437 (5th Cir. 1974) ..... .

Carey v. Greyhound Bus Co., Inc.,
500 F .2d 1372 (5th Cir. 1974) ............

Clark v. Alexander, 489 F. Supp. 1236
(D.D.C. 1980) .............................

Clark v. Chasen, 619 F.2d 1330
(9th Cir. 1980) ...........................

Coe v. Yellow Freight System, Inc.,
646 F.2d 444 (10th Cir. 1981) ............

Cross v. U.S. Postal Service,
24 FEP Cases 1603 (8th Cir. 1981) .......

*Davis v. Califano, 613 F.2d 957
(D.C. Cir. 1977) .........................

*E.E.O.C. v. American National Bank,
652 F .2d 1176 (4th Cir. 1981) ............

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

★Furnco Construction Corp. v. Waters,
438 U.S. 567 (1978) ......................

★Griggs v. Duke Power Co., 401 U.S. 424 (1971)
★Guerine v. J & W Investment, Inc.,

544 F .2d 863 (5th Cir. 1977) .............
★Hazelwood School District v. United States, 

433 U.S. 299 (1977) ......................
★International Brotherhood of Teamsters v.

United States, 431 U.S. 324 (1977) ......
Johnson v. Uncle Bens Inc., 628 F.2d 419

(5th Cir. 1980) ..........................

42

22

25.34 

36 

34 

44

25,30

23,31,32,35

22,43

28.34
24.35

22

26

24,26,27,30,

25

- v



Page

*Jones v. Cleland, 466 F. Supp. 34
(N.D. Ala. 1978) ...................................  40

*Loeb v. Textron, Inc., 600 F .2d
1003 (1st Cir. 1979) ............................... 44

*McDonald v. United Airlines, 587 F.2d 357
(7th Cir. 1978) ....................................  22

Morton v. Mancari, 417 U.S. 535
(1974) .............................................. 36

★Rich v. Martin Marietta Corp.,
522 F .2d 333 (10th Cir. 1975) .....................  23

Rowe v. General Motors Corp.,
457 F .2d 348 (5th Cir. 1972) ......................  25

★Taylor v. Teletype Corp., 648 F.2d 1129
(8th Cir. 1981) ....................................  40

Texas Department of Community Affairs v.
4 Burdine, 101 S. Ct. 1089 (1981 ) ...................  43,44

★Trout v. Hildago, 25 EPD 1f 31,753
* . (D.D.C. 1981) .......................................  23,31

★United Airlines v. Evans,
431 U.S. 553 (1971) ................................ 24

United States v. Caceres,
440 U.S. 741 (1979) ................................ 40

★Vuyanich v. Republic National Bank of
Dallas, 505 F. Supp. 224 (N.D. Tex. 1980) ........  22

- vi



Statutes: Pa9e

Equal Employment Opportunity Act
of 1972, P.L. 92-261, § 717 et secj..................  35,37

Executive Order No. 11246 .............................. 37
Executive Order No. 11478 .............................. 37
5 U.S.C. § 4313 ........................................  36
25 U.S.C. § 2301 et sea.................................  36

28 U.S.C. §§ 1331; 1343(4); 1361 ......................  2
42 U.S.C. § 2000e-16 et seq[............................. 2,35,37

Other

Baldus and Cole, Statistical Proof of
Discrimination (1980) ............................... 28

Fed. Rule Civ. Pro. 23 et seq..........................  22
4

FPM Chapter 335 et seq..................................  passim
43 Fed. Register 38,310 (1978) et seq..................  passim
H. Rep. No. 92-238 (1971)

1972 U.S. Code Cong. Admin. News 2137 .............. 36

- vii



IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

No. 81-7702

JOSEPH C. LAWLER, et al.,
Plaintiff-Appellants, 

v.
CLIFFORD ALEXANDER, as 

Secretary of the Department 
of the Army

Defendant-Appellee.

On Appeal from the United States 
District Court for the Northern 

District of Alabama

BRIEF FOR PLAINTIFFS-APPELLANTS

STATEMENT OF ISSUES
1. Whether the district court, in a Title VII action, 

improperly limited the scope of the class to blacks affected 
by only one part of a federal agency's promotion process?

2. Whether the statistical evidence showed a pattern 
and practice of discrimination so as to establish a prima 
facie case of disparate treatment of blacks with regard to
promotions?



3. Whether the statistical data established that the 
defendant's promotional system had an adverse impact on blacks?

4. Whether the defendant carried out his affirmative 
obligation, imposed by statute and regulation, to correct 
racial imbalance in work force composition and grade levels 
and the underrepresentation of black employees at higher 
grade levels and across occupational series?

5. Whether the distict court erred in denying the 
claims of class members that they had suffered discrimination?

STATEMENT OF THE CASE
A. Course of Proceedings and Disposition in the Court 

Below
This action was filed on December 20, 1977 and charges a 

violation of 42 U.S.C. §2000e-16, as amended 1972 (Title 
VII of the 1964 Civil Rights Act). Jurisdiction was invoked 
pursuant to 28 U.S.C. §§1331, 1343(4) and 1361. Record (R.) 1-5.

The matter was preliminarily certified on December 20,
1978 as a class action on behalf of all black employees in 
competitive service positions at Ft. McClellan who, on and 
after November 3, 1976, were discriminatorily denied promo­
tions. The class was recertified on March 6 , 1979 to include
all black employees who "have failed to be selected for a

1/position for which they were referred,"- or who have been 
misassigned duties, or who have been denied a requested 
reclassification. R. 134.

]_/ On January 4, 1979, the defendants moved for decertifi­
cation of the class. In the alternative, defendants sought 
a redefinition of "promotion" as used in the certification 
order, stating that they "would prefer to define 'promotion' 
as that term is used in the civilian personnel system."

2



Trial of this action, originally set for December 15,
1980, was twice continued owing to the successive judicial

2/appointments of two of plaintiffs' prior counsel. r . 152—
159. New counsel was substituted in January, 1981. Plain­
tiffs subsequently challenged the recertification order as too
restrictive on the issue of discrimination in promotions in a

3/conference with the court on March 26, 1981. Judge Pointer 
ruled that he would admit evidence of prereferral discrimination 
for its "circumstantial value", but did not modify the scope of 
the class. The action went to trial on June 29, 1981.

During six days of trial, plaintiffs challenged various 
practices and policies under Ft. McClellan's Merit Placement

V  continued
Defendants Memorandum in Support of Class Decertification,
January 4, 1979, p. 6 . Defendants then recommended that the 
class certified be defined as: "All black employees.... who
since (November 3, 1976) have been referred for, but not 
selected for a promotion...." 1x3. , p. 9. Such a restrictive 
use of the term "promotion" was intended to foreclose presenta­
tion of claims of discrimination in the "prereferral" stages 
of the promotion process.

Nowhere in civilian personnel system regulations is the 
term "promotion" so limited as to include only those employees 
who are "referred" for selection. Notwithstanding the inaccuracy 
of defendant's statement^ the district court amended its 
prior certification. R. 134; see also Record Excerpt 16.
2/ The Honorable U.W. Clemon, original counsel of record, 
was sworn in as a federal district court judge (Northern 
District of Alabama) on July 3, 1980. The case was then 
assumed by his former law partner, the Honorable Oscar W.
Adams, Jr., who was subsequently appointed to the Alabama 
Supreme Court on October 17, 1980.
3/ See: (1) Defendant's Response to Plaintiff's Second Set
of Interrogatories, filed February 16, 1981, R. 174-188 
(noting objections to discovery of "preferral" data, policies, 
etc).; (2) Plaintiff's Motion for Order Compelling Production 
and Answers and Memorandum in Support, filed March 25, 1981.
R. 189, 190-191.

3



and Promotion Plan, and alleged violations of federal equal 
employment opportunity and affirmative action regulations.
In support of both the class and individual claims of racially 
discriminatory disparate treatment in promotions, plaintiffs 
offered a variety of statistical, documentary and testimonial 
evidence. At the close of trial, the court below found against 
plaintiffs on all of their class and individual claims. R. 369.

The trial court denied plaintiffs' post-trial motion to 
amend judgment and/or certain findings. R. 370-379. The 
present appeal was timely filed on August 27, 1981.
B . Statement of the Facts

1. Makeup of the Overall Work Force
Ft. McClellan is a U.S. Army installation located north 

and adjacent to the city of Anniston, Alabama. During the 
six year period 1975-1980, the workforce of the Anniston 
Standard Metropolitan Statistical Area (SMSA) was about 14% 
black. See Plaintiffs' Exhibits (P.X.) 2 and 16. During 
the same six year period, the Ft. McClellan civilian workforce 
(appropriated fund) experienced a net increase in size, from 
1,071 in 1975 to 1,343 in 1980. While the proportion of 
blacks in the McClellan workforce also increased, it remained 
substantially below the Anniston SMSA figure (14%) at 9.5%

4/in 1980.“ The court below so found. Record Excerpts 23-4.
4/ 1975 1976 1977 1978 1979 1980
McClellan
Workforce 1071 1437 1390 1292 1264 1343
Number

Black 75 120 110 96 99 129
Percent

Black 7.0% 8.4% 7.9% 7.4% 7.8% 9.5%
Sources: 1975/76 Ft. McClellan EEO Plans

1977-80 U.S. Army Reports USCS-1136/SAOSA-191 
(Both contained in P.X. 1)

4



2 . Relative Distribution of Blacks and White
Despite the increased proportion of blacks, they are

grossly underrepresented at the intermediate and higher grade
4.1/levels, as was also found by the court below.---- Thus, as

shown by the following table, in the years 1975, 1977, and
5/

1980, blacks were disproportionately concentrated in the 
lower GS-levels, particularly when compared with white males:

6/Table 1.“
Distribution of White Males, Black Males, White

Females, and Black Females By GS levels , 1975 , 1977 f 1980.
1975

% at
Number Grade or Higher # % # % # %

GS-1 0 100% 0 100% 6 100% 0 100%
GS-2 1 100% 0 100% 10 89 3 100%
GS-3 11 99 1 100% 59 96 2 84%
GS-4 27 95 2 93 08 81 4 74%
GS-5 27 83 7 79 91 53 2 53%
GS- 6 18 70 1 29 28 29 1 42%
GS-7 40 62 1 21 34 23 4 37%
GS- 8 11 44 0 14 21 14 2 15%
GS-9 29 39 1 14 22 9 0 5%
GS-10 8 26 0 7 1 3 0 5%
GS-1 1 28 23 1 7 7 3 1 5%
GS-12 16 10 0 0 4 1 0 0%
GS-1 3 6 3 0 0 0 0 0 0%
GS-1 4 1 0.5 0 0 0 0 0 0%
Total 223 14 391 19

4.1/ See P.X. 1 and 2; also Record Excerpts 24.
5/ These three years were selected as illustrative, occurring 
at the beginning, middle and end of the certification period. 
Data relating to 1976, 1978 and 1979 are included in P.X. 1.
6/ Source: Derived from Plaintiffs' Ex. 1.

5



%

0 0 %
95
68
45
22
18
18
13

0
0
0
0
0

_0

%

100%
100
87
65
43
21
21
19
17

2
2
0
0
0
0

1977

Number

WM
% At

Grade or #

BM

% #

WF

%

GS-1 1

Higher
1 0 0% 0 1 0 0% 1 1 0 0%GS-2 6 99 3 100 37 99GS-3 7 97 5 88 109 93GS-4 32 94 6 69 150 74GS-5 40 82 3 46 130 47GS- 6 15 66 1 34 42 24GS-7 35 60 3 30 38 17GS- 8 15 46 0 19 19 10GS-9 45 41 4 19 22 7GS-10 8 23 0 3 1 3GS-11 42 20 1 3 16 3GS-12 3 3 0 0 1 0.3

GS-13 6 1 0 0 1 0 .1GS-14 1 0.3 0 0 0 0

Total 256

Number

WM
% At

Grade or

26

1980

#

BM

%

567

#

WF

%

GS-1 0

Higher
1 0 0% 0 1 0 0% 0 1 0 0^

GS-2 3 1 0 0% 3 100 41 100GS-3 11 98 7 90 83 93GS-4 16 95 5 67 147 78GS-5 41 89 5 51 153 53GS- 6 11 74 3 35 50 27GS-7 29 71 3 25 • 41 19GS- 8 11 60 0 16 6 12
GS-9 44 56 2 16 36 11GS-10 6 41 0 9 1 5GS-11 57 39 2 9 25 4GS-12 41 19 1 3 3 0 . 6GS-13 6 4 0 0 0 0.1GS-14 6 2 0 0 1 0.1GS-1 5 1 0.3 0 0 0 0

Total 283 31 587

6



Thus in 1975, while 44% of white male GS employees were 
at grade 8 or above, only 14% of blacks, both male and female, 
were. On the other hand, only 30% of white males were GS-5 
and below, as compared to 71% of blacks males and nearly 64% 
of all black employees.

Even if white females (whose distribution has been much 
more similar to that of blacks than to white males) are 
combined with white males, during the six year period 1975- 
1980, blacks were becoming increasingly concentrated in the 
lower grade levels, relative to white employees. As noted 
above, in 1975, nearly 64% of McClellan's black general 
schedule employees were GS-5 or below. By comparison, only 
55% of all white GS employees were so rated. By 1980 the 
proportion of blacks GS-5 and below increased to over 72%, as 
compared to an increase to only 56.9% of white employees.
While the proportion of both blacks and whites in the interme­
diate GS- 6  through 9 ranges declined during the six year period 
the most revealing change occurred at the GS-10 level and above 
While about 6.1% of blacks were GS-10 and above in 1975, only 
about 5.6% were in 1980. By contrast, whites increased substan 
tially - from about 10.9% in 1975 to over 17% in 1980.

The decline in the relative portion of blacks GS employees 
as compared to whites is also shown by Table 2, which gives 
the average grade levels for blacks, whites, white males, 
and black males for each year:

7/ In 1975 30.4% of the blacks and 33.1% of the whites were 
GS- 6  through 9. By 1980, blacks declined 3.1% to 22.3%, 
while the proportion of intermediate level whites declined 6.9% to 26.2%.



Table 28/

Average Grade Levels of GS employees, 1975-1980
1975 1976 1977 1978 1979 1980

white 6 .0 0 4.83 5.83 6.06 6.16 6 .2 0

black 5.40 4.77 4.44 4.66 4.88 5.01
white (m) 7.57 7.44 6.67 8.06 8 . 1 2 8.27
black (m) 5.65 5.37 5.16 5.37 5.53 5.26

With regard to Wage Grade, or blue collar workers, the 
same pattern of disproportionate concentration of blacks in
the lower grades when compared with whites, and particularly 
white males, is evident.

Table 39/

Distribution of White Males, Black Males, White
Females, and Black Females By WG levels , 1975 , 1977 1980.

1975
WM BM WF BF

% At
Number Grade or # % # % # %

Higher
WG-1 1 100% 1 100% 0 100% 0 100%
WG-2 0 99 2 97 1 100 0 100
WG-3 5 99 2 92 0 97 0 100
WG-4 8 98 9 87 1 97 9 100
WG-5 15 95 6 64 1 93 9 100
WG- 6 29 91 3 49 16 90 0 50
WG-7 38 81 8 41 2 37 1 50
WG- 8 47 69 1 21 9 30 0 0
WG-9 50 53 4 18 0 0 0 0
WG-10 65 37 2 8 0 0 0 0
WG-1 1 41 16 1 3 0 0 0 0
WG-1 2 6 2 0 0 0 0 0 0
WG-1 3 1 0.3 0 0 0 0 0 0

Total 306 39 30 10

8/ Source : Plaintiffs' Ex. 1.
9/ Source : Plaintiffs' Ex. 1.

8



1977

WM
% At

BM WF BF

Number Grade or # % # % # %
Higher

WG— 1 0 100% 0 100% 0 100% 0 100%
WG-2 3 100 2 100 2 100 0 100
WG-3 2 99 5 96 0 93 0 100
WG-4 12 98 13 87 0 93 1 100
WG-5 16 94 13 64 2 93 0 66
WG- 6 29 89 6 41 16 87 1 66
WG-7 39 80 8 30 0 37 0 33
WG- 8 53 69 1 16 10 37 1 33
WG-9 47 52 3 14 1 6 0 0
WG-1 0 86 38 4 8 1 3 0 0
WG- 1 1 33 11 1 1 0 0 0 0
WG-1 2 5 1 0 0 0 0 0 0
WG-1 3 1 0.3 0 0 0 0 0 0

Total 326 56 32 3

WM

Number
% At
Grade or

1980
BM

# %

WF

# % #

BF

%

WG-1 0

Higher
100% 0 100% 0 100% 0 100%

WG-2 1 100 1 100 0 100 0 100
WG-3 4 99 6 97 0 100 0 100
WG-4 3 98 3 85 0 100 0 100
WG-5 17 96 14 79 3 100 0 100
WG- 6 17 90 5 50 10 84 0 100
WG-7 33 84 7 39 1 31 1 100
WG- 8 28 71 5 29 5 26 1 50
WG-9 50 60 2 14 0 0 0 0
WG-1 0 75 41 5 10 0 0 0 0
WG-1 1 . 27 13 0 0 0 0 0 0
WG-1 2 8 3 0 0 0 0 0 0

Total 263 48 19 2

Thus, by 1980, while more than 60% of white males were 
at WG-9 and above, only 14% of black males were above WG-9.
These disparities were again reflected in the average grades of 
WG workers, which demonstrate a widening of the gap between blacks

9



and whites during the period 1975-1980 similar to that ocurring
among GS employees.

10/Table 4 —
Average Grade Of WG Workers, 1975-1980.

1975 1976 1977 1978 1979 1980
White 8.24 7.99 8.21 8.38 8.95 8.46
Black 5.86 5.35 5.63 6 .0 0 5.94 6 .0 0

White(m) 8.42 8.14 8.38 8.55 8.50 8.74
Black (m) 5.80 5.32 5.68 6 .0 0 5.89 6.03

The pervasive pattern of white males holding the higher
level supervisory positions is most dramatic when the statistics
for wage leaders and wage supervisors are examined . In 1 975,
there were no black wage leaders out. of a total of 1 1, and only
one black: wage supervisor out of 36. Thus, of all wage board
supervisory positions, blacks held 1 of 47, or 2%, and the one
was at a low level. This was in a workforce where blacks held
10.4% of all wage board positions (50 out of 432), and 12.7% of
wage grade positions (49 out of 385), the source of wage board
supervisory personnel. By 1980 the picture had not changed
noticeably. There were still no black wage leaders (out of 13),

11/and only one black out of 33 wage supervisors.
3. The Operation of the Fort McClellan Promotion 

System
Merit promotion for federal civilian employes is governed 

by Chapter 335 of the Federal Personnel Manual (FPM) issued

10/ Source: Plaintiffs' Ex. 1.
11/ See Plaintiffs' Ex. 1.

10



by the Office of Personnel Management, as well as by agency
and local regulations promulgated pursuant to Chapter 335.
As a general requirement, those regulations provide:

An agency must adopt adequate procedures to provide equal opportunity in its promotion program for all 
qualified employees and to insure that nonmerit 
factors do not enter into any part of the promotion 
process. Promotions must be made without discrimi­
nation for any nonmerit reason such as race, color, 
religion, sex, national origin, politics, marital 
status, physical handicap, age, or membership in 
an employee organization.
FPM 335, Subch. 3-9(a).

Ft. McClellan's present Merit Placement and Promotion 
Plan was promulgated in October, 1974 and was last amended 
in October, 1976. Since 1976, however, the U.S. Civil Service 
Commission —  now the Office of Personnel Management —  has 
issued the Uniform Guidelines on Employee Selection Procedures, 
43 Federal Register 38,310 (1978), and has revised Chapter 
335. Ft. McClellan's merit promotion plan does not reflect 
the new guidelines.

Ft. McClellan Regulation 690-9 (in evidence as P.X. 26) 
is defendant's Merit Placement and Promotion Plan, and provides 
in Section I that the Regulation's purpose is to "establish 
policies, procedures and guidelines for merit placement and 
promotion of civilian employees." Promotions under the regula­
tion, in other words, are to comport with specified merit 
principles and procedures. Merit promotion procedures consti­
tute, essentially, a process of elimination whereby applicants 
for an announced position are, at each state of the process, 
reduced in number to those few remaining candidates who are 
"referred for selection" as the "best qualified. n



Briefly summarized, the process begins with the announce­
ment of a position vacancy (Ft. McCl. Form 513-R). Interested 
employees submit an Application for Promotion and Internal 
Placement Considerations (Ft. McCl. Fm. 35). Applicants are 
given performance analysis and appraisals (Ft. McCl. Fm.
424). The civilian personnel office reviews the applications 
and eliminates those applicants who do not meet minimum eligibil­
ity requirements prescribed by the Office of Personnel Manage­
ment (OPM). The remaining "qualified" applicants are then 
evaluated on performance and other locally prescribed criteria; 
rated - i.e., given a point score, then ranked on the basis of 
their scores. Some upper proportion of the "qualified" employ­
ees are designated "highly qualified." Usually the top five 
"highly qualified" applicants are then "referred" to the select­
ing official by being listed on Department of the Army Form 
2600 (P.X. 25) as the "best qualified" candidates. The select­
ing official is then to record on the Form 2600: (1) his
selection criteria; (2 ) the candidate selected; and (3 ) the 
reasons for his selection. The 2600 is then returned to the 
civilian personnel office, which is to audit the form to insure 
that selecting officials. Officials have complied with merit 
principles. See also P.X. 28.

In addition to the foregoing competitive promotion proce­
dures, certain promotions can be made as exceptions to competi­
tion. See Generally FPM 335, Subch. 4. Career promotions can 
occur without competition, for example, when a previously 
competitively selected career intern is promoted through an

12



upgrade of the position he occupies, pursuant to a career ladder 
program. Promotions can be given until the employee reaches the 
top of the career ladder, the "journeyman" level. Civil service 
regulations also require noncompetitive promotions for all other 
incumbent employees who meet the qualification requirements for 
an upgraded position, resulting from job evolution or the

v.

assumption of additional duties above those of the assigned 
grade level. FPM 335, Subch. 4-3b.

While ostensibly based on objective merit and job related 
principles, Ft. MClellan's Merit Placement and Promotion 
Plan places heavy reliance on the subjective appraisals of 
civilian personnel office staffing specialists, supervisors 
and selecting officials, who are disproportionately white. In 
the crucial process of evaluation and rating, for example, 
staffing specialists can assign up to 20 out of 100 points 
for "excess experience that is clearly related to the job 
being filled." Ft. McClellan Reg. 690-9 (P.X. 26), App. C- 
la(2). Staffing specialists exercise their own judgment as 
to what is "clearly related" and the number of points to be 
assigned. also, in violation of the Uniform Guidelines on 
Employee Selection Procedures, up to 20 additional points 
can be awarded for formal recognition and training that is 
not job related. Trial Transcripts (T.T.) 180. Staffing 
specialists also evaluate locally prescribed "highly qualified" 
criteria for job relatedness purely on the basis of personal, 
subjective judgment. T.T. 252-3; 426. Finally, staffing 
specialists utilize subjective judgment in auditing the seletion

13



criteria on the DA 2600's for conformity to merit principle. 
There are no standard directives or guidelines by which staffing 
specialists may evaluate the selection criteria given on the 
2600. T.T. 246? 426. Yet, staffing specialists bear the 
primary responsibility for giving verbal guidance to selecting 
officials as to appropriate selection criteria. T.T. 203.

During the five years 1976-1980, there were a total of 
7,053 applications for promotions - 563 (8%) of which were 
from black employees. See Part 1, page 6 of P.X. 36. 51%
of those black applicants were rated "not qualified" at the 
outset, as compared to only 46.7% of the white applicants.
Among those employees found minimally qualified, blacks received 
a higher proportion of non-referrable "qualified" and "highly 
qualified" ratings than whites, 50% vs. 44%. Conversely, 
blacks received a statistically significant lower proportion 
of "best qualified" ratings that are required for referral and 
promotion, —  50% for blacks as compared to 56% for whites. 
Eventually, only 24.5% of all black applicants were rated "best 
qualified" as compared to 30.1% of all white applicants. Thus, 
black applicants for promotion are eliminated from consideration 
in substantially greater proportion than white applicants during 
the prereferral evaluation, rating, and ranking process.

Even among those applicants rated "best qualified",
some were precluded from further consideration because the
advertised vacancy was either cancelled, abolished, or filled
noncompetitively. Frequently, these "non-standard outcomes"
occurred after the best qualified candidate or candidates
had been referred to the selecting official. During the

- 14 -



five years 1976-1980, there were 876 applications which were 
terminated by such non-standard outcomes. (See Part 3, page 
6 of P.X. 36.) 82% of black applicants rated "best qualified" 
were affected, as compared to only 61% of the white appli­
cants rated "best qualified". In at least two instances, a 
black applicant had been referred to the selecting official 
as the only best qualified candidate before the selecting 
official decided to abolish the position. See infra. 46-47.

Mr. David Parker, the Civilian Personnel Officer at Ft. 
McClellan, testified at trial that the DA Form 2600 (P.X.
25) should be audited after a selection is made to insure 
compliance with merit principles. He also stated that "being 
unable to see inside the selecting official's head, the only 
audit that we can make are the reasons that are provided on 
the 2600 as based upon the selection, and are those reasons 
based upon merit." T.T. 231.

In fact, as the testimonies of defendant's own civilian 
personnel office officials clearly demonstrate, no serious 
effort is made to audit effectively the Form 2600 selection 
criteria for compliance with merit principle and equal employment 
opportunity, particularly where the selecting official states 
no more than his "belief" that the individual chosen is the 
best qualified. T.T. 193; 241; 246-8. Recruitment and 
Placement Branch Chief Magee testified that the Form 2600 
audit is to assure that there are no "flagrant violations" 
of merit principle by selecting officials, as for example 
where a choice is made "because the person is white". T.T.

15



190-1. But only in an obvious violation of that magnitude 
is the 2600 sent back to the selecting official for correc­
tive action, and that occurs "rather infrequently," or "once 
or twice a quarter." T.T. 200-1. On there other hand, "clearly 
subjective" criterion, stating only a "belief" in the absence 
of specific merit and job related factors, is usually accep­
ted on the assumption that the selecting official's decision 
"could have been based on merit". T.T. 192.

During the five years 1976-1980, there were 128 DA Forms 
2600 which included one or more black candidates referred 
as "best qualified". Blacks were selected from 56 2600's 
and whites were selected from the remaining 72. In comparing 
the selection criteria, given in these two sets of 2600's, 
it is clear that in 43% of the cases where blacks were select­
ed over whites, clearly objective merit and job related criteria 
were specified, e.g. , "more recent up-to-date experience/ 
familiarity with heating systems". In only 5% of the cases were 
clearly subjective criteria utilized - e.g. , "I believe/feel 
this person best qualified". Conversely, in the 72 cases were 
whites were selected over blacks, 39% of the cases were based on 
clearly subjective criteria. In only 22% of the case were 
whites selected over blacks on the basis of objective criteria 
which specified merit and job related factors. See P.X.

12/ In reviewing P.X. 37, the Court below stated:
I had gone through to appraise the work product of 
plaintiffs' counsel in this regard and find it

16



Under the Uniform Guidelines, federal agencies are 
required to "maintain and have available for inspection, 
records or other information which will disclose the impact 
which its tests and other selection procedurs have upon 
employment opportunities (of minorities)... in order to 
determine compliance with these guidelines". Sec. 4 U.G.E.S.P.; 
43 F.R. at 38297 (1978). The Guidelines provide a framework 
for determining the proper use of employee selection procedures 
and are "predicted on the principle that the use of a selection 
procedure which has an adverse impact (on minorities) is unlaw­
fully discriminatory", unless the procedure has been validated 
as job related. FPM Letter 300-25 (Dec. 29, 1978), p.2.

At the trial record clearly demonstrates Ft. McClellan 
officials have done nothing to comply with the guidelines or 
FPM chapter 335. T.T. 1345-1346, 1372. Ft. McClellan's 
promotion plan had last been amended in October, 1976 — ■ two 
years prior to issuance of the Uniform Guidelines. Notwith­
standing the new OPM requirements, no steps have been taken 
to collect adverse impact data or to validate the installation's 
promotion plan for the job-relatedness of employees selection 
procedures. T.T. 1349-50; see also Record Excerpts 60. As 
previously noted, Ft. McClellan's current plan utilizes a

12/ continued
generally satisfactory in terms of the attempted 
characterizations of the responses and reasons 
given for selection or non-selection.

Record Excerpts 33.

17



point system that gives substantial weight to non job-related 
criteria in the prereferral ranking of "qualified", "highly 
qualified" and "best qualifed" candidates. T.T. 180.

4. The Base's Career Development-Affirmative Action 
Program

The evidence established that there has been a failure 
at Fort McClellan to utilize effectively training programs 
to achieve a balanced workforce or to enhance the career 
advancement of blacks. As civil service regulations state, 
with respect to internal promotion policy: "As a general
rule when an agency does an effective job of selecting and 
training employees, it should have a pool of employees with 
potential for career advancement to most positions". FPM 
335, Subch. 3-3e(i). Given the foregoing undisputed statistics 
of racial imbalance, it is evident that the career potential 
and advancement of black employees is not being developed in 
an equitable manner.

Two career development programs which are intended to 
provide training and opportunity for advancement and pro­
motion are Upward Mobility and Civilian Career Programs.
The Upward Mobility program is

... designed to provide encouragement, assistance 
and developmental opportunities to lower-level 
employees ... in dead-end jobs, in order that they 
may have the change in to increase opportunities 
for advancement, improve skills, and benefit from 
training and education through a program of individual 
career development.

Ft. McClellan Equal Employment Opportunity Plan, FY 1977, 
Appendix B. During the six years 1975-1980, 23.7% of all 
black applicants for Upward Mobility positions were rated

18



"best qualified", as compared to 28.4% of all white applicants 
so rated. These figures indicate that the Upward Mobility pro­
gram was not being utilized as an affirmative means to correct
the racial imbalance present in the McClellan workforce.

"The civilian career management system provides for 
planned intakes of new employees, primarily at the GS 5/7 
intern levels, and their development from entrance through 
executive levels." Statement of Affirmative Support Federal 
Equal Opportunity Recruitment Program (FEORP), 7 March 1980, 
Appendix C (P.X.2). The statistics indicate gross underrepre­
sentation of minorities in at least 12 of 20 career management 
programs for the four years 1977-1980:

Career Programs - Percentage Black 
(Total number of participants in parentheses)

Career Program 1977 1978 1979 1980
Civ. Personnel Ad. 7.1 (14) 6.7 (15) 7.1 (14) 6.7 (15)Compt./Financial 0.0 (36) 0.0 (34) 0.0 (35) 0.0 (32)
Safety Mangement 50.0 ( 2) 50.0 ( 2) 50.0 ( 2) 50.0 ( 2)
Supply Mangement 0.0 (10) -- 0.0 (ID 0.0 (10)
Procurement 0.0 ( 3) 0.0 ( 3) 0.0 ( 3) 0.0 ( 3)Education & Train. 2.9 (35) 2.6 (38) 3.2 (31) 9.1 (33)
Material Maint. - — - — - — 0.0 ( 1)Engin./Scientists 0.0 (16) 0.0 (18) 0.0 (16) 0.0 (21)
Intelligence 0.0 ( 1) 0.0 ( 1) 0.0 ( 1) 0.0 ( 1)Librarians 0.0 ( 4) 0.0 ( 4) 0.0 ( 2) 0.0 ( 2)Info./Editorial 0.0 ( 7) 0.0 ( 5) 0.0 ( 5) 0.0 ( 6)
Auto. Data Process 0.0 ( 6) 0.0 ( 6) 0.0 ( 6) 0.0 ( 6)Transportation -— 0.0 ( 4) 0.0 ( 4) 0.0 ( 3)Communications 0.0 ( 1) 0.0 ( 1) 0.0 ( 1) 0.0 ( 1)Manpower and Force 0.0 ( 3) 0.0 ( 3) 0.0 ( 3) 0.0 ( 3)
Housing Management -— 0.0 ( 2) 0.0 ( 3) 0.0 ( 1)Equal Employ. Opp. - — -— -— 100.0 ( 1)Records Management -— -— -— 0.0 ( 1)Commissary -— -— -— 0.0 ( 4)Equip. Specialist 0.0 ( 1) 0.0 ( 1) 0.0 ( 1) 0.0 ( 1)
TOTALS ALL PROGRAMS 2.1 (146 ) 2.2 (137) 2.2 (138) 4.3 (140)
Sources: 1977/80 U.S. Army Reports (notes 3 and 7, supra)

and Ft. McClellan FEORP Tables, Appendix C. (P.X. 2).
19



SUMMARY OF ARGUMENT

In their prima facie case, plaintiffs presented extensive 
statistical, documentary and testimonial evidence of gross 
racial imbalances within the Ft. McClellan workforce. In 
addition, plaintiffs demonstrated: (1) that defendant's merit
promotion plan is unduly subjective; (2 ) has an adverse impact 
on black applicants for promotion; (3) is dominated by a dispro­
portionate number of white supervisors and personnel officials; 
(4) that the system utilizes racially discriminatory selection 
criteria, adverse to equally qualified black candidates; (5) 
that defendant has failed to perform adverse impact and job 
validation studies required by federal laws and regulations; (6 ) 
that defendant has denied black employees equal training and 
developmental, as well as promotional, opportunities; (7) that 
blacks are discriminatorily underclassified; and (8 ) that defen­
dant's merit promotion system operates to enhance and perpetuate 
racial disparities across grade levels and job series.

Defendant failed to meet its burden to rebut plaintiffs' 
prima facie case. The district court, however, ruled against 
plaintiffs on the basis of erroneous legal standards and improper 
analysis of the evidence. Moreover, defendant failed to satisfy 
its burden to provide legally sufficient reasons, or to otherwise 
rebut, evidence presented by individual class members.

20



ARGUMENT

I. The District Court Abused Its Discretion In Recertifying
The Class to Exclude Nonreferred Black Applicants For
Promotion
In response to a motion filed by defendant, the court 

below modified its original certification order and limited 
the definition of "promotion" to include only "those employees 
who have failed to be selected for promotion for which they 
were referred." Record Excerpt 16. Excluded from the class 
as redefined are those blacks who apply for promotion but 
are discriminatorily evaluated, rated and ranked in the "pre 
referral" stages of the promotion process, and are consequently 
not referred for promotion. See p. 14.

In the course of pretrial discovery, plaintiffs challenged 
the recertification order. See note 1, supra. The court 
declined to reconsider its order, but did direct defendant 
to respond to discovery requests for "prereferral" data, 
since evidence of prereferral discrimination would be admitted 
at trial.

Notwithstanding plaintiffs evidence of racially, discrimina­
tory adverse impact in the evaluation, rating and ranking of 
black applicants for promotion, the court restricted its review 
of the evidence as well as its findings, to the limited issue of 
discrimination against only those blacks who were referred for 
selection. See Record Excerpts, 20-22; 30. Since the certifi­
cation was based on an arbitrary definition of promotion, the 
district court abused its discretion by improperly excluding 
from the class nonreferred black applicants for promotion.

21



The general rule is that a district court's class certifi­
cation order is final "unless there is an abuse of discretion, 
or the court has applied impermissible legal criteria or stan­
dards". Carey v. Greyhound Bus Co., Inc., 500 F.2d 1372, 1380 
(5th Cir. 1974). In effectuating the nature and intent of Title 
VII, "a court should give a wide scope to the act in order to 
remedy, as much as possible, the plight of persons who have 
suffered from discrimination in employment opportunities".
Id., 500 F.2d at 1380. In the present action, the district 
court's arbitrary definition of promotion is clearly an "imper­
missible legal criterion", which unduly restricts the scope of 
an adequate remedy for those who have been denied equal promo­
tion opportunity. A district court is obligated to grant" the 
most complete relief possible". Franks v. Bowman, supra, 424 
U.S. at 764 (1976). The class certification in this case 
violates that standard and must be set aside. See McDonald v. 
United Airlines, 587 F.2d 357 (7th Cir. 1978) cert. denied 442 
U.S. 934 (1979).

Moreover, "(a) decision as to class certification is 
not immutable." Guerine v. J & W Investment, Inc., 544 F.2d 
863, 864 (5th Cir. 1977). A court has a continuing duty to 
reevaluate class status on the basis of events which develop 
as the litigation unfolds," Vuyanich v. Republic National 
Bank of Dallas, 505 F. Supp. 224, 233 (N.D. Tex. 1980), and 
is empowered to do so under Federal Rule of Civil Procedure 
23 (c) (1), up to the point of a decision on the merits.

Given the evidence of prereferral discrimination presented 
at trial (see, e.g. P.X. 36), as well as the scope of represen-

22



tation afforded by the trial testi]onies of the class plaintiffs 
(most of whom have been subject to the same discriminatory 
evaluation, rating and ranking procedures and have been nonre- 
ferred on other occasions), the court improperly excluded 
nonreferred black applicants for promotion.

The improper denial of the requested class certification 
foreclosed plaintiffs from proving the broad based policies of 
discrimination in promotion, which formed the basis of their 
class complaint. As a result, the district court's order 
"curtailed plaintiffs in vindicating their rights". See Rich v. 
Martin Marietta Corp., 522 F.2d 333 (10th Cir. 1975). In 
narrowly restricting the issue of promotion discrimination to 
only that against blacks referred and not selected, the court 
erroneously severed the issue and evidence of prereferral 
discrimination and discrimination in the perpetuation of past 
racial imbalance, from the issue and evidence of post-referral 
discrimination. See also E.E.O.C. v. American National Bank,
652 F.2d 1176, 1198 (4th Cir. 1981); Trout v. Hildago, 25 EPD 
31,753 (D.D.C. 1981).

The present class certification must be set aside as an 
abuse of the trial court's discretion.

II. Plaintiffs' Statistical Evidence Establishes A Clear
Pattern And Practice Of Racially Discriminatory Treat­
ment Of Blacks In The Operation Of Defendant's Merit 
Promotion System

A. Plaintiffs' Statistical Evidence Established A Prima 
Facie Case Of Discrimination 
The uncontroverted statistical evidence amassed by

plaintiffs at trial reflects gross racial disparities and
imbalance within the Ft. McClellan workforce throughout the

23



six year period covered by this action. Moreover, the sta­
tistics clearly indicate that the operation of defendant's 
merit promotion plan itself has not only perpetuated, but 
has also enhanced those disparities - all of which are greater 
in 1980 then they were in 1975. A promotion system which 
presently perpetuates discrimination violates Title VII.
Griggs v. Duke Power Co., 401 U.S. 424, 430 (1971); United 
Airlines v. Evans, 431 U.S. 553, 558 (1977); Teamsters v.
U.S. , 431 U.S. 324, 349 (1977).

The proportion of blacks in the McClellan workforce has 
been substantially below that of the local workforce through­
out the six year period. See note 4, supra. As the court 
below found (Record Excerpts 24), blacks are' concentrated and 
overrepresented at the lower levels and grossly underrepresented 
at the higher levels. See Tables 1 and 3, supra, pp. 5 and 8 . 
There is also gross disparity in the average grade levels of 
black and white employees - particularly as between black males 
and white males. See Tables 2 and 4, supra, pp. 8 and 10. The 
pervasive pattern of black underrepresentation is dramatically 
illustrated with respect to supervisory positions - particularly 
by Wage Leaders and Wage Supervisors. See p. 10, supra.

In operation, the McClellan merit promotion plan is a 
highly subjective system which has a substantial adverse impact 
on black applicants for promotion throughout the evaluation, 
rating, ranking, referral and selection stages of the promotion 
process. Blacks receive less favorable ratings and are elimin­
ated from further consideration in greater, statistically

24



significant proportion than is true for white applicants. See 
p. 14, supra. They are also subject to discriminatory 
treatment in the use of clearly subjective selection criteria, 
which favors selection of white applicants in for greater 
proportion than blacks. See p. 16, supra; see also, Davis v . 
Califano, 613 F.2d 957 (D.C. Cir. 1977); Johnson v. Uncle Bens 
Inc., 628 F .2d 419 (5th Cir. 1980); Rowe v. General Motors 
Corp. , 457 F .2d 348, 359 (5th Cir. 1972).

The adverse impact and discriminatory treatment inhe­
rent in the operation of McClellan's merit promotion plan 
has never been isolated and corrected by defendant, due to 
the failure to conduct the impact analysis and validatioh 
studies required by federal regulations. See pp. 17-18, 
supra.

Moreover, defendant has failed to utilize career deve­
lopment and training programs, specifically designed to afford 
advancement opportunities for employees locked into lower grade 
level positions, to correct the pervasive and endemic racial 
imbalances within the McClellen workforce. See, Clark v. Alex­
ander, 489 F.Supp. 1236, (D.D.C. 1980); affirmed and remanded in 
part, sub. nom. Clark v. Marsh —  F.2d —  (D.C. Cir. Sept. 2, 
1981). "(I)t would be expected that, absent discriminatory
promotion practices, the proportion of the protected group iji 
each of the job classifications and grade levels would approxi­
mate the proportion of the protected group with the minimum 
necessary qualification for promotion in the employer's labor 
force as a whole." Davis v. Califano, 613 F.2d at 964 (citing

25



Teamsters v. United States, 431 U.S. 324 (1977)).
Evidence of statistical disparities alone can consitute

prima facie proof of a pattern and practice of employment
discrimination. Hazelwood School District v. United States,
433 U.S. 299, 307-8 (1977). Given the findings of the court
below, that plaintiffs are underrepresented at the higher

14/grades and have lower average grade levels (Record Excerpts
23-4), plaintiffs clearly established a prima facie case

15/soley on the basis of their statistical presentation.
B. The Defendant Did Not Rebut Plaintiffs' Prima Facie 

In a pattern and practice suit under Title VII, the 
burden on plaintiff class is to "establish by_ a preponderance 
of the evidence that the racial discrimination was the (em­
ployer's) standard operating procedure - the regular rather than 
the unusual practice." (Emphasis added). Hazelwood School 
District v. U.S., supra, 433 U.S. at 307; Teamsters, supra,
431 U.S. at 336. Plaintiffs have more than met that burden 
in the present action with their showing that defendant's 
workforce has continuously reflected gross racial disparities

I V

13/ It should be noted that all blacks in the class as certi 
-fied exceed minimum qualifications, having been referred as 
"best qualified". Moreover, those blacks not referred generally 
met qualification requirements in the evaluation stage unless 
the evaluation itself was in some way discriminatory. Also, 
candidates referred as "best qualified" are assumed by personnel 
officials to be of equal qualification. T.T. 184; 430.
14/ The Court below noted that plaintiffs' statistical proffers 
irare of significance and value in support of plaintiffs' 
claims that there has been discrimination system at Ft. 
McClellan." Record Excerpts 24.
15/ Plaintiffs, did of course, supplement their statistical 
evidence with other documentary and testimonial evidence.

26



and imbalance and that its merit promotion plan both perpetuates
16/and enhances those disparities, as discussed above.

"The burden then shifts to the employer to defeat the 
prima facie showing of pattern or practice by demonstrating 
that the (plaintiffs') proof is either inaccurate or insignifi­
cant." Teamsters, 431 U.S. at 360. The employer's defense 
must, of course, be designed to meet the (plaintiffs') prima 
facie case...." Teamsters, 431 U.S. at 360 n. 46. A review 
of the trial record, however, reveals that defendant failed 
to meet its burden. Indeed, as previously stated, plaintiffs' 
statistical evidence was uncontroverted. The essence of 
defendant's case was that once referred for selection, blacks 
were selected at a higher rate than whites and that consequently 
there was no adverse impact on blacks under Ft. McClellan's 
Merit Placement and Promotion Plan. The district court in its 
findings followed the same reasoning. See Record Excerpts 60.

Defendant's evidence, however, plainly does not rise to 
meet plaintiff's prima facie case. "Affirmations of good faith 
in making individual selections are insufficient to dispel a 
prima facie case of systematic exclusion." International 
Brotherhood of Teamster v. United States, 431 U.S. 341 n. 24

16/ Plaintiffs also presented direct proof of discriminatory 
motive, including: (1) a failure to adequately montior and
enforce merit principly in the promotional process, as required 
by federal regulation, resulting in adverse impact and disparate 
treatment of black employees who apply for promotion; (2) a 
failure to validate Ft. McClellan employee selection procedures, 
pursuant to federal regualtions; and (3) a failure to support 
Ft. McClellan's Equal Employment Opportunity Officer and EEO 
program. Finally, plaintiffs presented individual cases of 
discriminatory treatment through the testimonies of fourteen 
class members.

27



(1977). Moreover, even proof that a workforce is in fact
racially balanced is insufficient alone to rebut a prima
facie showing that an employer's promotion policies were
discriminatorily motivated. See Furnco Construction Corp.
v. Waters, 438 U.S. 567, 580 (1978).

The district court placed heavy, almost exclusive, reliance
on defendant's evidence (D.X. 37 and 38) in concluding that
plaintiffs' prima facie case had been met and in its finding of
no discrimination against the class. See Record Excerpts 30-1;
33-4; 57; 60; 66. In fact, in a curious and legally erroneous
shifting of burdens, the district court states "in essence (it)
found that the results of the defendant's study (introduced
during its case) had not been undermined by PX-36 (introduced in
plaintiffs' case in chief as prima facie evidence)". Record
Exerpts 66. The premise of the prima facie case is that the
claimant presents his or her version of the case and the nature
of the violation. See, Baldus and Cole, Statistical Proof of
Discrimination, (Shepard's/McGraw-Hill, 1980) p. 192. The
burden is on defendant to meet the plaintiffs' case and not vice
versa, as the district court held. Teamsters, supra.

A similar shifting of burdens occurred in Rich v. Martin
Marietta Corp., 522 F.2d 333 (10th Cir. 1975), wherein the
Tenth Circuit reversed a district court's failure to consider

18/defendant's evidence only in light of the prima facie case.

18/ The Tenth Circuit noted that:
From a reading of the court's findings, it is 
apparent that it was defendant's statistics and 
other evidence that impressed the court that there

28



The appellate court stated that "the (trial) court's full
acceptance of the defendant's concepts of the case and its
rejection of the plaintiffs' served to curtail plaintiffs'
efforts to vindicate their rights". 522 F.2d at 349.

Similarly here, D.X. 37 and 38 purport to show that
blacks referred for promotion have a selection of rate of
39.1%, as compared to a rate of 31.1% for whites. The court
below concluded on the basis of those figures that:

Obviously such statistics give rise to no inference 
of any discrimination against blacks and indeed if 
one were simply on a statistical basis to draw any 
inference, it would be that whites had been disfavored 
in that process. (Emphasis added).

Record Excerpts 31. The proper query should have been whether 
defendant's statistics rebutted plaintiffs' prima facie case.

The defendant's evidence and the district court's reliance 
on it are based on an obviously misperceived and too restric­
tive view of the promotion issue presented by plaintiffs in 
. . 19/this case. The central issue is not simply the relative 
rates of black and white promotion at one isolated point in

18/ continued
had not been discrimination.... (T)he court should 
require the (employer's) evidence either to be 
responsive or not to be considered....

522 F.2d at 345-6.
19/ See Record Excerpts 30.

The defendants have produced for the Court some 
thing more directly tailored to the actual issues 
in the case, namely the number of whites and blacks 
found to be best qualified, and in turn in effect 
referred for consideration. (Emphasis added).

29



the process, as defendant and the district court would have 
it, but the levels and distributions at which those promotions 
occur and whether or not they effectuate a proportionately 
balanced and representative workforce. See, Teamsters and 
Davis v. Califano, supra, p. 25. That is the issue addressed 
by plaintiffs' prima facie case and the one to which defendant 
offered no rebuttal.

Neither the defendant nor the court seemed particularly 
concerned with the impact of the purported selection rates 
for blacks on the pervasive racial disparities and imbalance 
in the McClellan workforce established by plaintiffs' prima 
facie evidence. Indeed, when comparing the average grade of 
promotion among blacks selected in D.X. 37 and 38 to the 
average grades of all black employees shown in P.X. 1, it 
can readily be seen that existing disparities are not only 
being perpetuated, but often exacerbated:

1976
1977
1978
1979
1980

1976
1977
1978
1979
1980

General Schedule (Blacks) 
Avg. Grade Promoted 

(D.X. 37/38)
4.33
4.18
4.71
3.86 
4.27
Wage Schedule (Blacks)
5.73
6.00
5.29
5.58
6.86

Avg. Grade All 
(P.X. 1)
4.77
4.44
4.66
4.88
5.01

5.35
5.63
6 . 00
5.94
6 . 0 0

Thus, higher selection rates at the end of the process not­
withstanding, the defendant's evidence only serves to strengthen 
plaintiffs' claim that McClellan's promotion system perpetuates

30



discrimination against blacks and that the discrimination is 
resulting in greater disparity and racial imbalance within 
the workforce.
C. The District Courts Erroneous Analysis Of The Evidence 

The districts court's analysis of the evidence at trial
was legally erroneous. "Under a proper analysis, all of the
evidence, statistical and nonstatistical, tending to establish
a prima facie case should first have been assessed on a

20/cumulative basis," followed by an inquiry as to whether 
or not defendant's evidence had dispelled the prima facie 
case. E.E.O.C. v. American National Bank, 652 F.2d 1176,
1189 (4th Cir. 1981). As previously noted, plaintiffs' 
statistical evidence was uncontroverted and defendant failed 
to meet his burden under Teamsters, supra, to demonstrate 
that the proof was "either inaccurate or insignificant."

21/D. X. 37 and 38 fail to meet plaintiffs' prima facie case.
The district court's analysis also "failed to assess 

the evidence in the light of, and colored by, the gross underrep-

20/ See finding of the court that P.X. 37 "does not establish 
a prima facie case In and of itself". Record Excerpts 33.
21/ D.X. 37 and 38 are deficient on a number of other grounds, 
relating to their probative value and the weight they should 
be accorded. First, the exxhibits look only at the final 
stage of the promotion process - i.e., they consider only 
employee referred for selection. The "disaggregation" of 
prereferral discrimiation, demonstrated by plaintiffs, renders 
them unreliable as measures of true promotion rates (unlike 
plaintiffs' evidence, which is based on qualified applicants 
for promotion) and therefore "inherently less probative."
See Trout v. Hildalgo, 25 EPD 131, 753 (D.D.C. 1981). Second, 
the data is not stratified in such a way as to assess the 
distribution of black promotions across all grade levels.
See argument, supra, p. 30.

31



resentation of blacks in (the) workforce already statistically
demonstrated to the district court's satisfaction." E.E.O.C. v. 
American National Bank, 652 F.2d at 1198. Since statistical 
imbalance in the McClellan workforce had been clearly estab­
lished, it was also important for the court to assess the 
operation of the merit promotion plan for its "tendency to 
perpetuate an existing condition of underrepresentation." Ici. 
Instead, the court approached the evidence as though no such 
imbalance existed and consequently "misapplied the controlling 
legal principles (see Teamsters, supra, pp. 26-27) to the evi­
dence." 652 F.2d at 1198.

In addition to the district court's legally erroneous
analysis of the evidence, the court also based its findings
on highly unreliable data and engaged in improper manipulation
of other statistical data. At trial, plaintiffs' identified
a major coding error in the selection data shown on P.X. 36.
T.T. 311-12. Notwithstanding plaintiffs' argument that the

22/information was unreliable,—  the court assumed that the 
"relative information concerning whites and blacks selected" 
in P.X. 36 is "substantially accurate" when based on a compa- 
parison with the figures in D.X. 37 and 38. Record Excerpts 
25-26. The Court totally ignores the fact that two different 
bases are used in the two sets of exhibits, making such a 
direct comparison inappropriate. More importantly, the court 
improperly assumed facts that are very much at issue in this

22/ The court is inaccurate in stating that the selection data 
in P.X. 36 is "incomplete." See Record Excerpts 69.

32



litigation —  i.e., whether defendant's figures reflect pre- 
referral discrimination and whether they accurately represent 
promotional opportunity across all grade levels and job series 
See also the court's improbable combination of data from plain 
tiffs' and defendant's exhibits, based on the same set of 
assumptions. Record Excerpts, 67.

As part of their claim of discrimination in promotions 
at Ft. McClellan, plaintiffs also allege that blacks are 
purposefully and discriminatorily assigned permanent duties 
"out of grade" —  i.e., they are underclassified and under 
paid, in greater proportions than white employees, based on 
their actual duties and assignments. This is effectively a 
denial of promotion, given procedures for noncompetitive 
upgrading based on job evolution.

Defendant commissioned a position classification audit
on random samples of black and white Ft. McClellan employees.
D.X. 20-22. The audit clearly shows greater, statistically
significant underclassification of black employees. T.T.
1108. The audit also showed an overclassification of blacks,
which led the court below into legal error:

I am convinced in this situation that the Court 
must take into account not only the undergrading, 
but also the overgrading, and ascertain what is 
the net effect of the errors in grading, recognizing 
that the error more frequently has occurred in 
this sample with respect to blacks than whites... 
when one in effect nets out... (n)o conclusion can 
be drawn that there is any adverse impact on the 
blacks as a result of the misgrading that certainly 
has been shown to occur. (emphasis added).

Record Excerpts 35. Here, the primary focus of the evidence
is on the issue of disparate treatment. Whether or not some

33



blacks were favorably treated with respect to overclassifica­
tion, is of no relevance to the issue of discrimination being 
practiced against those blacks who were underclassified.
Furnco, 438 U.S. at 579; Teamsters, 431 U.S. at 342 n. 24.
The court's attempt to "net out" "errors" in classification 
is to simply disregard the purposeful discrimination underlying 
the underclassification of black employees "that certainly 
has been shown to occur."
III. Plaintiffs' Statistical Evidence Also Establishes

Adverse Impact In The Operation Of Defendants' Merit 
Promotion System
The district court stated at the outset of trial that 

it believed this class action to be premised on a theory of 
racially discriminatory disparate treatment. T.T. 30. However, 
plaintiffs' counsel stated that the evidence would demonstrate 
both disparate treatment and disparate (or adverse) impact.
T.T. 27.

The U.S. Supreme Court held that "(e)ither theory may,
of course, be applied to a particular set of facts". Teamsters,
supra, 431 U.S. at 335, n. 15. Consequently:

It is to be understood that these two approaches 
to employment discrimination are treated not as 
separate claims for relief, but as alternate 
grounds for recovery. (Citing Teamster).... It 
is necessary, therefore, to consider whether plain 
tiff has any right to relief on either of these 
theories in light of the evidence in the case.

Coe v. Yellow Freight System, Inc., 646 F.2d 444, 448 (10th
Cir. 1981); Clark v. Alexander, supra.

The evidence presented below demonstrates substantial 
adverse impact in the operation of Ft. McClellan's merit

34



promotion plan. Defendant has not rebutted that evidence
with the requisite showing of business necessity or job-related-
ness. Griggs v. Duke Power Co., 401 U.S. 424 (1971).

Given the substantial racial imbalance in the Ft. McClellan 
workforce, a proper evidentiary analysis would assess the 
tendency of the merit promotion system to perpetuate the 
imbalance. Griggs, 401 U.S. at 430; Teamsters, 431 U.S. at 
349; EEOC v. American National Bank, 652 F.2d at 1198, supra.

The trial court erroneously failed to consider the 
impact of the selection rates in D.X. 37 and 38 on the existing 
imbalance. As indicated at p. 30, supra, those rates do in 
fact perpetuate existing conditions of underrepresentation.

Based on the substantial evidence of adverse impact 
presented below and defendant's failure to rebut that evidence, 
the Record clearly supports a finding of adverse impact in 
the operation of McClellan's promotion system. The district 
court's finding to the contrary is premised on both legal 
and clear factual error and must be reversed.

IV. Defendant's Failure To Take Effective Measures To Correct 
The Maldistribution Of Blacks In Its Workforce Is An 
Independent Violation Of Section 717.
Section 717(b) of the Equal Employment Opportunity Act 

of 1972 imposes on federal agencies a positive obligation to 
develop affirmative action plans which must include programs 
to provide training so that all employees may advance according 
to their potential. (42 U.S.C. §2000e-l6(b )). Similarly, 
the Civil Service Reform Act of 1978 states that its prohibi­
tions against discrimination "shall not be construed to

35



extinguish or lessen any effort to achieve equal employment 
opportunity through affirmative action," (25 U.S.C. §2302(d)) 
and mandates special minority recruitment programs to correct 
an underrepresentation of minorities in any job category (5 
U.S.C. 5 2 3 0 1(c)). The Act also requires that persons in the 
Senior Executive Service be rated on whether they meet affirmative 
action goals as well as achieve EEO requirements (5 U.S.C.
§4313). In addition, FPM Chapter 335, subchapter 1-4, provides 
that in filling vacancies, agencies have an obligation to 
determine and use these sources of employees that are most 
likely to "meet the agency's affirmative action goals."

The reason for imposing unique affirmative action obliga­
tions on federal agencies was Congress' finding in 1972 
that:

[The] disproportionate distribution of minorities 
and women throughout the federal bureaucracy and 
their exclusion from higher level policy-making 
and supervisory positions indicates the government's 
failure to pursue ots policy of equal opportunity.

H. Rep. No. 92-238 (92nd Cong. 1st Sess., 1971); 1972 U.S.
Code Congressional & Administrative News, pp. 2137, 2158. H.
Rep. No. 92-238 (92d Cong., 1st Sess.), p. 23 (1971). See 
also, Morton v. Mancari, 417 U.S. 535, 546, n. 22 (1974);
Clark v. Chasen, 619 F.2d 1330, 1332 (9th Cir. 1980) ("Congress 
was deeply concerned with the Government's abysmal record in 
minority employment....").

To correct "entrenched discrimination in the federal 
service " (4 Rep. No. 92-238), Congress placed federal agencies 
under special requirements to develop and maintain "an affirma­

36



tive program of equal employment opportunity" (42 U.S.C. 
§2000e-16(b) ).

To accomplish these goals, the Civil Service Commission, 
already endowed with the responsibility for eliminating 
discrimination in the federal government by Executive Orders 
11246 and 11478, was given the duty to require that each 
agency and department in the federal government establish an 
affirmative action program for the recruitment and advancement 
of minorities. 42 §2000e-16(b)(1). Section 717(e) provides 
that the Act does not "relieve any government agency or official 
of its or his primary responsibility to assure non-discrimina­
tion in employment ... or his responsibilities ... relating to 
equal employment opportunity ...." Section 717(b) specifically 
provides that the plan "submitted by each department, agency and 
unit shall include, but not be limited to —

(1) provision for the establishment of training 
and education programs designed to provide a maximum 
opportunity for employees to advance so as to 
perform at their highest potential. ...

Further, pursuant to its obligations under Title VII,
the U.S. Civil Service Commission, now the Office of Personnel
Management (OPM), issued the Uniform Guidelines of Employee

23/Selection Procedures (U.G.E.S.P.) and completely revised

23/ The Uniform Guidelines apply "to employee selection 
procedures used in making certain employment decisions," 
including promotion. FPM Letter 300-35 (Dec. 29, 1978), p.
2. They provide a framework for determining the proper use 
of employee selection procedures and are "predicated on the 
principle that the use of a selection procedure which has an 
adverse impact (on minorities) is unlawfully discriminatory," 
unless the procedure has been validated as job related.
See 43 Federal Register 38290, (August 25, 1978) and 5 CFR 
300.103(c).

37



Chapter 335 of the Federal Personnel Manual (FPM), which 
governs the procedures used for competitive promotions by 
all federal agencies. All federal agencies are required to 
"maintain and have available for inspection records or other 
information which will disclose the impact which its tests 
and other selection procedures have upon employment oppor­
tunities (or minorities) ... in order to determine compliance 
with these guidelines." Sec. 4 U.G.E.S.P. (1978).

As the record of trial below reflects there has been a 
total failure to comply with the requirements of the Uniform
Guidelines, revised Chapter 335, and Ft. McClellan's own Merit

24/Promotion Regulation 690-6 (P.X. 26). T.T. 1345-1346, 1372.—  
Ft. McClellan's promotion plan had last been amended in October, 
1976 —  two years prior to issuance of the Uniform Guidelines.
Notwithstanding the new 0PM requirements, neither 0PM nor Ft.

25/McClellan had conducted any adverse impact study—  or

24/ The court below stated:
"I can't really make a finding on (the issue of 

impact analysis/validation studies) because I do 
not recall enough evidence dealing, (sic) and did 
not study the regulation in question with a view 
to determine whether it is required that an adverse 
impact study be conducted."

Record Excerpts 59-60. Again the Uniform Guidelines require 
all federal agencies to conduct an adverse impact study.
The failure of the court to make a finding of this crucial 
issue, in light of the admissions of defense witness Magee 
on cross examination (T.T. 1344-50), is clear reversible 
error.
25/ While noting that D.X. 37 and 38 were surveys showing 
Favorable selection rates of blacks referred for selection, 
Mr/ Magee acknowledged that the surveys were prepared for

38



validated the installation's promotion plan for the job-related- 
ness of employee selection procedures. T.T. 1349-50.

Ft. McClellan's current plan utilizes a point system that 
gives substantial weight to non job-related criteria in the 
prereferal ranking of "qualified", "highly qualified" and "best 
qualified" candidates. See p. 13, supra; see also T.T. 180.

Despite the fact that no adverse impact analysis or 
validation study was ever conducted at Ft. Mcclellan, defendant 
had other evidence of adverse impact. P.X. 1 and 2 (both 
prepared by defendant) demonstrate the disproportionate distribu­
tion and underutilization of minorities, from 1975 through 1980, 
within the Ft. McClellan workforce and across grade levels and 
job series. The court below so found, noting that" all of these 
matters are, of course, of significance and value in support of 
plaintiffs' claims that there has been discrimination in and 
about the promotion system at Ft. McClellan". Record excerpts 
24. The court below further noted:

The failure of Ft. McClellan to achieve many of 
the goals it has set for itself in affirmative action 
is not a matter about which the defendants here can 
take pride.... [T]he Fort has not achieved the type 
of success in its affirmative action plan that one 
might hope for.

Record Excerpts 56.

25/ continued
purposes of this litigation, under the instructions of defense 
counsel. T.T. 1314, 1344-5. For purposes of an impact analysis 
required under the Uniform Guidelines, D.X. 37 and 38 are wholly 
inadequate since they do not evaluate the impact of either the 
entire selection process or all other individual components of 
the total process. Sec. 4C U.G.E.S.P., supra.

39



In Jones v. Cleland, 466 F. Supp. 34 (N.D. Ala. 1978), the
plaintiff presented, as part of her prima facie case, undisputed 
evidence of the defendant's knowing failure to comply with its 
own affirmative action plan and regulations. The trial court 
held:

Due process of law requires an agency of the govern­
ment to follow its own rules and regulations. This 
requirement was not met. the court is therefore 
compelled to find that defendant did discriminate 
against the plaintiff by its nonfeasance with 
regard to the plan. Further, by evidence of such 
disregard, the defendant's intentional discrimination 
against the plaintiff has been made out as to her 
nonselection... the knowing disregard by the defendant 
and his minions of the Veteran's Administration's 
own affirmative action regulations manifests intent 
on their part. See, Washington v. Davis, 426 U.S.
229 (1977).

466 F. Supp. at 38. See also Taylor v. Teletype Corp., supra 648
F.2d 1129, 1135 n. 14. "A court's duty to enforce an agency
regulation is most evident when compliance with the regulation is
mandated by the Constitution or federal law". Unied States v.
Caceres, 440 U.S. 741-749 (1979). Since the Uniform Guidelines
were promulgated to enforce the Fifth Amendment and §717 of Title 

26/VII ,they are mandatory and it is the duty of the court to 
27/enforce them. The court below also acknowledged that 

failure to comply with federal affirmative action regulations is 
evidence of discrimination. T.T. 36.

The evidence at trial also reflects a failure by defendant 
to support the Equal Employment Opportunity Officer and the 
EEO programs. Mr. Louie Turner served as the Equal Employment

26/ As the Uniform Guidelines provide: "These guidelines
will be applied... by the Civil Service Commission and other 
Federal Agencies subject to section 717 of Title VII...".
Sec. 2 U.G.E.S.P.
27/ The same line of reasoning would apply to Ft. McClellan's

40



Opportunity Officer (EEOO) at Ft. McClellan for nearly seven
28/years —  from March, 1974 through January, 1981.—  At trial

Mr. Turner testified concerning the failure of the installation's
command to support both him and the EEO program. T.T. 57, 67
62-63 in a variety of respects, including lack of access to
the commanding officer and lack of staff, finances, and

29/consultation 82-83; 104-105.
Whether or not Mr. Turner was in fact a competent EEO offi­

cer does not absolve Ft. McClellan of its respsibilities of under 
federal regulations. If incompetent, it was the Command's 
responsibility to take corrective action at the earliet possible

28/ Mr. Turner was terminated as EEOO in an adverse action 
citing unsatisfactory performance. He filed an adminstrative 
complaint with the Merit System Protection Board, which sustained 
the adverse action. Mr. Turner appealed and the matter was 
pending at the time of trial.
29/ On May 1, 1979 (a year and a half prior to the adverse 
action against him), Mr. Turner filed a dicrimination complaint 
with the Commanding general, copies to TRADOC and the Department 
of the Army. P.X. 13; see also T.T. 79-96. In his complaint, 
he alleged that as EEOO he had been "discriminated against 
continuously because of race in regards to job performance, 
treatment and promotion: and that "[sjince my asignment to 
Ft. McClellan, every attempt has been used to discredit the 
EEO program ad the EEO officer". Mr. Turner noted that when 
the EEOO's position was upraded from GS-11 to GS-12 in 1977, 
he had to compete for promotion as opposed to being promoted 
noncompetitively as required by Federal Personnel Manual regula­
tion (FPM Supp. 752-1). See also text at note 30 infra. Mr. 
Turner also challenged in his complaint a proposed reorganization 
that would have denied him direct access to the Commanding 
General, as mandated by Army directives. CPR 700 (C31), 1 april 
79. P.X. 13, at 3-4.

Most of his allegations are supported by EEO Staff Assistant 
Visit reports, filed in 1976-1979 and prepared by reviewing 
officials from Headquarters, Training and Doctrine Command 
(TRADOC), Ft. Monroe, Virginia. See P.X. 8-10; see also T.T. 
55-74. Two EEOO Visit reports in 1980 were highly critical of 
the EEOO's performance. P.X. 16-17. As Mr. Turner testified, he 
was shown neither report util January, 1981, after he had been 
notified of his termination.

41



Opportunity Officer (EEOO) at Ft. McClellan for nearly seven
28/years —  from March, 1974 through January, 1981. At trial 

Mr. Turner testified concerning the failure of the installation's 
command to support both him and the EEO program. T.T. 57, 67 
62-63 in a variety of respects, including lack of access to
the commanding officer and lack of staff, finances, and

29/consultation 82-83; 104-105.
Whether or not Mr. Turner was in fact a competent EEO offi­

cer does not absolve Ft. McClellan of its respsibilities of under 
federal regulations. If incompetent, it was the Command's 
responsibility to take corrective action at the earliet possible

28/ Mr. Turner was terminated as EEOO in an adverse action 
citing unsatisfactory performance. He filed an adminstrative 
complaint with the Merit System Protection Board, which sustained 
the adverse action. Mr. Turner appealed and the matter was 
pending at the time of trial.
29/ On May 1, 1979 (a year and a half prior to the adverse 
action against him), Mr. Turner filed a dicrimination complaint 
with the Commanding general, copies to TRADOC and the Department 
of the Army. P.X. 13; see also T.T. 79-96. In his complaint, 
he alleged that as EEOO he had been "discriminated against 
continuously because of race in regards to job performance, 
treatment and promotion: and that "[s]ince my asignment to 
Ft. McClellan, every attempt has been used to discredit the 
EEO program ad the EEO officer". Mr. Turner noted that when 
the EEOO's position was upraded from GS-11 to GS-12 in 1977, 
he had to compete for promotion as opposed to being promoted 
noncompetitively as required by Federal Personnel Manual regula­
tion (FPM Supp. 752-1). See also text at note 30 infra. Mr. 
Turner also challenged in his complaint a proposed reorganization 
that would have denied him direct access to the Commanding 
General, as mandated by Army directives. CPR 700 (C31), 1 april 
79. P.X. 13, at 3-4.Most of his allegations are supported by EEO Staff Assistant 
Visit reports, filed in 1976-1979 and prepared by reviewing 
officials from Headquarters, Training and Doctrine Command 
(TRADOC), Ft. Monroe, Virginia. See P.X. 8-10; see also T.T. 
55-74. Two EEOO Visit reports in 1980 were highly critical of 
the EEOO's performance. P.X. 16-17. As Mr. Turner testified, he 
was shown neither report util January, 1981, after he had been 
notified of his termination.

41



time. The evidence, however, shows that Mr. Turner performed the 
duties of EEOO for seven years and received consistent "satisfac­
tory" performance evaluations. He received a step increase as 
late as 1978. The Command had failed to provide adequate supp- 
port for EEO and affirmative action, and as a result of the 
failure to achieve its stated goals it required a scapegoat.

Mr. Turner also testified that, on the basis of personnel 
attitude surveys and staff assitant visits conducted while 
he was EEOC, black employees generally perceive racial discrimi­
nation in promotions at Ft. McClellan and fear reprisals for 
the filing of EEO complaints. T.T. 72-2;76; 121; 125; 130; 
139-40. Defendant failed to offer testimony from black employees 
to the contrary.

Finally, as described in detail in the Statement of Facts, 
the defendant's training and upward mobility programs were 
totally inadequate to even begin to correct the evident maldis­
tribution of the workforce. Indeed, blacks were disproportion­
ately excluded from those programs that did exist.

V. Defendant Failed To Meet The Required Burden To Rebut
The Individual Claims Of Plaintiff Class Members
Had the court below applied the correct legal standard, 

it would have been compelled to find classwide discrimination 
on the basis of the evidence presented. See argument II., 
supra. Under a correct analysis, the individual claimants 
would then be carried by a presumption of intentional discri­
mination, with a corresponding burden on defendant to rebut 
by clear and convincing evidence. Baxter v. Savannah Sugar 
Refining Corp., 495 F.2d 437 (5th Cir. 1974), cited with approval

42



in Franks v. Bowman Transportation Co., 424 U.S. 747, 772-73, n.
32 (1976). As the record of trial reflects, defendant failed to 
meet that burden with respect to the individual claims of the 
plaitiff class.

Having ruled against plaintiffs on their class claims, 
the court stated that it was bound by the Supreme Court's 
ruling in Texas Dept, of Community Affairs v. Burdine, 101 
S. Ct. 1089 (1981). Record Excerpts 37. Assuming arguendo 
the applicability of Burdine, defendant also failed the minimal 
burden of production under Burdine with respect to the individual 
claimants.

Defendant's evidence must raise "a genuine issue of fact as 
to whether it discriminated against the plaintiff". Burdine, 
supra, 101 S. Ct. at 1094. To meet that requirement, defendant 
"must clearly set forth.... the reasons for the plaintiff's 
rejection", through admissible evidence, and must "frame the 
factual issue with sufficient clarity" so that the plaintiff will 
have "a full and fair opportunity to demonstrate pretext". Ibid., 
at 1095. "[T]he defendant's explanation of its legitimate 
reasons must be clear and reasonably specific". Ibid., at 1096.

A general review of the evidence presented by the defendant 
fails to reveal anything which satisfies these requirements.

The statistical evidence offered by defendant —  specifical­
ly D.X. 37 and 38 —  fails to state "clear and reasonably speci­
fic reasons" for the nonselection of the individual class clim- 
ants, which would afford plaintiffs a "full and fair opportunity 
to demonstrate pretext".

43



Defendant also offered the testimonies of a number of
white supervisors, each of whom stated, in essence, his or
her "belief" that the whites selected over the individual
class claimants were better qualified. In Burdine, the Supreme
Court cites with approval Loeb v. Textron, Inc., 600 F.2d 1003,
1011-1012, n. 5 (CA 1 1979), wherein the court states:

Although the employer has a burden of production 
rather than of persuasion... (a) passsing reference 
by just one of many witnesses to some deficiency 
in the plaintiff's job rating, for example, would 
be insufficient, nor would it be enough to offer 
vague, general averments of good faith —  a plaintiff 
cannot be expected to disprove a defendant's reasons 
unless they have been articulatd with some specificity.

Thus, a defendant cannot rebut an inference of discrimiation
with a general, unsupported statement that other applicants
were better qualified. See also Cross v. U.S. Postal Service,
24 FEP Cases 1603, 1607 (8th Cir. 1981).

Under civil service regulations, as well as under Burdine, 
it is particularly incumbent on the federal defendant to state 
the "legitimate" merit and job related factors upon which he 
based his belief that the selected employee was better qualified. 
In so stating those factors with sufficient specificity, then —  

and only then —  does defendant afford the individual claimant "a 
full and fair opportunity to demonstrate pretext".

Mr. Joseph Lawler, the named plaintiff, became a career 
intern in the Ft. McClellan safety management program in May, 
1973; since that date he has been the victim of repeated, 
almost continuous discriminatory treatment and denial of promo­
tional opportunity. His entry into the safety intern program had 
been opposed because he was black. T.T. 445-6. His second

44



supervisor (Medders) was, in the words of defense counsel, "an 
alcoholic" who was "abusive, inconsiderate and ineffective in 
carrying out Mr. Lawlyer's career intern training" (T.T. 34) and 
who frequently expressed open contempt for blacks in general and 
Mr. Lawler in particular. T.T. 448; 451. Owing to overt dis­
crimination by Medders, Mr. Lawler did not receive timely trainig 
and was consequently promoted late twice. T.T. 447-58.

By contrast, Mr. Lawler's third supervisor (Wible) gave 
him an outstanding evaluation (T.T. 942) and recommended his 
upgrading to assistant safety manger, GS-11, based on the 
duties Mr. Lawler had been routinely performing above his
GS-9 grade level. T.T. 461; 887; 940-8. Wible's own military

*

superiors (Morton and Hayward) opposed the recommended position 
upgrade based on their improper (and wholly inadequate) personal 
assessments of Mr. Lawler. T.T. 882-5. Neither Morton nor 
Hayward understood proper civilian personnel procedures for 
upgrading an existing position, as an exception to competition, 
based on job evolution. T.T. 921-2; 945-6.

The only stated criticism of Mr. Lawler's qualification 
was writing ability. T.T. 985-7; 944. Yet, Wible, his immediate 
supervisor, had rated him outstanding on writing ability and 
stood by the rating when challenged by Hayward. T.T. 944. 
Moreover, defense witness Whitehead testified, that the quality 
of Lawler's writing was not note any different from the other 
divisions under Morton's command. T.T. 966-7. In all other 
regards, Mr. Lawler was highly commended on his experience and 
expertise. T.T. 545; 941-2.

45



The record reflects that Mr. Lawler's military supervisors 
favored promtion of a white retired Lt. Colonel and GS-9 (Duke) 
with less experience and far fewer responsibilities than Lawler 
and who, in fact, had been trained by Lawler. T.T. 530; 540.
The record also reflects that for eight years the development and 
operation of Ft. McClellan's safety program was due largely to 
Mr. Lawler's efforts above and beyond those of his assigned 
grade. T.T. 505-9; 511. Mr. Lawler's position was finally 
audited in late 1980 and upgraded to GS-11, assistant safety 
manager, on the basis of duties he had routinely performed for 
years. T.T. 486-8; 501. Upon the retirement of Wible as Safety 
Manager, Lawler again assumed the duties of acting manager and 
was under consideration for promotion when he was preempted for 
the position by an individual from outside Ft. McClellan on a 
"stopper lists". T.T. 519-20.

Defendant has failed to articulate legitimate, nondiscrimi- 
natory reasons for the failure to promote Lawler. Moreover, 
those legally insufficient reasons defendant has offered (e.g., 
poor writing ability) are clearly pretextual.

Plaintiff Timothy Goggins applied for the positions of 
Occupational Analyst (GS-0222-09) on December 14, 1976 and 
Position Classification Specialists (GS 0221-9/11) on December 
20, 1976. As the evidence at the trial established, Mr. Goggins 
was highly qualifed for both positions and was in fact rated as 
the only "best qualified" candidate for both positions as an­
nounced. See P.X. 77 and T.T. 1192.

Several referral lists from beyod Ft. McClellan were 
requested for the Occupational Analyst position; however,

46



Mr. Goggins remained the sole best qualified candidate. Rather 
than select Mr. Goggins, the position was abolished some three
months after it had been announced, ostensibly so the position 
could be "restructured with possible changes in series and 
title." P.X. 77. This rationale was contradicted at trial with 
testimony that the position was simply not needed (T.T. 1072-3)
-a recognition that did not come until three months after the 
position had been anounced and also after the failure to locate 
other candidates. The testimony further shows that the duties of 
the position have been divided between a GS-12 and several other 
employees. T.T. 1191. Clearly, defendant's proffered explana­
tions for the nonselection of Mr. Goggins were pretextual. The 
court's finding of no discrimination against Mr. Goggins is 
therefore clearly erroneous. Record Excerpts 40-4.

With regard to the Classification Specialist position, 
the selecting official testified that he contacted the civilian 
personnel office before he received the referral register and 
upon learning that Mr. Goggins was about to be referred as the 
only best qualified candidate, withdrew the announcement and 
rewrote it as a career intern position at the GS-7 level. T.T. 
1192-7. The selecting official's action were a blatant violation 
of Ft. McClellan regulations. T.T. 1196-7. The position was 
then filled, non-competitively, by a white GS-7, career-condi­
tional employee. Given the regulatory violation and the noncom­
petitive selection of a white employee, the proffered reasons 
for Mr. Goggins' nonselection were neither "legitimate" nor 
"nondiscriminatory". See also Record Excerpt 42.

47



In May 1976, plaintiff Wayne Garret was reassigned from 
Directorate of Industrial Operations (DIO), Services Division 
to DIO, Supply Division as a Warehouseman (WG-6907-05). While in 
the supply division, Mr. Garrett was assigned the additional 
duties of a Warehouseman/Forklift Operator at the WG-06 level, 
although he remained a WG-05. He received satisfactory perfor­
mance evaluations during 1976 and 1977. In 1977, the position 
was surveyed and officially upgraded to the WG-06 level. Mr. 
Garrett, as the incumbent performing the duties, was interviewed 
by the surveyor.

While Mr. Garrett was clearly entitled to a noncompetitive
30/promotion under federal regulations, his white supervisor 

had the position announced for competitive promotion in October, 
1977 and eventually selected a white employee for the position.
Mr. Garrett was forced to accept reassignment to another division

11/at the WG-05 level.
Mr. Garrett thereupon filed an EEO complaint of discrimi 

-nation, which was investigated and an initial finding of dis­
crimination rendered against the supervisor. The finding was 
later changed to no finding of discrimination because of alleged 
bias.by the investigator. However, no follow up investigation

30/ See Ft. McClellan Reg. 690-9 (P.X. 26), Sec. IV, para.
17d. Federal Personnel Manual requirement are even more exacting: 
"If the incumbent meets the legal and qualification requirements 
for the higher grade, he must be promoted noncometitively 
unless removed from the position by appropriate personnel 
action. (Emphasis added). FPM 335, Subch. 4-3b. (P.X. 38).
31/ Compare to the action taken with respect to white employee 
James George —  an action in violatio of personnel regualtions. 
T.T. 1014.

48



was ever held to suport the "no discrimination" finding. The 
supervisor was reprimanded for failing to support the command's 
affirmative action program (see P.X. 3) and Mr. Garrett received 
a promotion to WG-06 in his new position, but without backpay.

The trial court's concurrence "with the administrative 
finding ... that there was no discrimination on a racial basis 
against Mr. Garrett," Record Excerpts 48, is clearly erroneous 
since the evidence also shows that there was no follow up investi­
gation to support the adminstrative finding upon which the court 
relied. T.T. 815. Given the improprieties noted in an Inspector 
General's Report of Inquiry (P.X. 3), it is quite probable that a 
follow up investigation would have resulted in a second adminis­
trative finding of discrimination.

On February 9, 1977, plaintiff Bobby Murphy applied for 
the position of Supply Management Officer (GS-2003-07). At 
the time, he was serving in the immediately subordinate position 
of Warehouse Supervisor WS-05, at the Troop Issue Subsistence 
Activity. On April 19, 1977, Mr. Murphy was rated "not quali­
fied," because he allegedly lacked "the required specialized 
experience". D.X. 9. Mr. Murphy was told initially that he 
had not supervised General Schedule (G.S.) employees, an allega­
tion he denied. T.T. 1351.

According to the job vacancy announcement itself (P.X.
113), specialized experience includes: "experience in related
supply activites which provided the applicant with the required 
knowledge and abilities to perform at the level of the position". 
At trial, Mr. Murphy gave extensive testimony of how he had 
performed, in addition to his own tasks, nearly all of the

49



duties of the advertised position on a routine basis for about 
four yers, under three different supply officers. T.T. 619-26; 
1376-78. As a consequence, Mr. Murphy did indeed possess the 
requisite specialized experience to qualify for the position.
The explanation given by the defense in Mr. Murphys' case is 
clearly pretextual. Accordingly, the court's finding is clearly 
erroneous.

Plaintiff Charles Bryant testified (T.T. 271) that when 
the announcement for assistant supervisor was posted, he and 
Fred Gann, a white co-worker, applied. Ed Parker, the white 
supervisor, told both that neither was qualified, but later 
announced Gann as assistant supervisor. T.T. 273. Defendant 
offered no explanation for Mr. Gann's apparent noncompetitive 
appointment. Mr. Garin was the selecting official for two 
equipment operator positions. Gann indicated to Bryant that 
he felt Bryant and two white applicants were "all qualified" 
and that he was "in a bind" about whom to pick. T.T. 283.
Gann did not deny making the statement. T.T. 983. Gann selected 
the two white applicants, despite the fact that all three had the 
same job classification (T.T. 982) and comparable experience.
T.T. 973, 979. Gann's proffered explanation for the selections 
is clearly pretextual in light of the prior exchange between he 
and Bryant.

Betty Bailey's early attempts to transfer to Ft. McClellan 
from the Veterans Hosital in Birmingham were thwarted by Donald 
Magee's representation of no vacancies. Ms. Bailey requested and 
received assistance from her Congressman and was hired as a GS-3

50



Military Personnel Clerk. In November, 1980 she received a writ 
ten rating of "Not Qualified" on her application for a GS-4 ac­
count technician position and complained to the CPO, David Parker 
after her complaint she received a rating of "qualified". She 
made a second inquiry and the rating was changed to "highly 
qualified". Ms. Bailey was not, however, referred because she 
was only 2.5 points below the sixth person on the 2600. Had Ft. 
McClellen's merit Promotion plan been in compliance with the 
Uniform Guidelines, she may have been selected. See pp.
Donald Magee testified that it had been his opinion all along 
that Ms. Bailey was "highly suitable" for. the position. T.T. 
1363.

McCordis Barclay was employed a-t Ft. McClellan in February, 
1976 as a laborer after six and one-half year as an active- 
duty Air Force supply clerk. In 1978 he left Ft. McClellan, 
but returned in April, 1979. Shortly thereafter, he appplied 
for a position of Supply Technician GS-5, but was not selected. 
His application indicated he had been rated "best qualified 
and interviewed", when in fact he had not been interviewed.
T.T. 395. When he inquired about the interview, personnel 
clerk Arrington abruptly changed his rating to "highly qualified" 
with no explanation. When a white female was later selected 
for the position, Mr. Barclay was told that she was more quali­
fied. Testimony at trial, however, revealed that Mr. Barclay had 
more years of job related experience and that the white employ­
ee's selection was not predicated upon merit related factors.
T.T. 1303.

51



Charlotte Acklin had served as a Supply Clerk GS-4 in the 
Customer Assitance Branch and had received two outstandig 
performance ratings. In 1978, Ms. Adklin was selected for a 
GS-5 position in the Commissary. In 1979 she applied for 
her old GS-4 position in Customer Assistance, which had been 
upgraded to GS-6. There was no difference at all between 
her GS-4 duties and the GS-6 duties, except the grade level.
She therefore had more directly related experience than other 
white applicants for the position. T.T. 773. One of the panel 
members who considered Ms. Acklin and the other applicants for 
the position testified that she was far better qualified than her 
white competitors. T.T. 1375. The announcementr however, was 
then cancelled. The defendant offered no explanation for the 
cancellation. Moreover, Donald Magee testified that a white 
applicant, Bill Cain, who had competed with Acklin for the 
position, was later selected non-competitively for a comparable 
position. T.T. 1384-86. The Court, in concluding that since the 
job was cancelled no discrimination was shown, committed revers­
ible error. The Court failed to consider the inference of 
discriminatory animus inherent in the cancellation of a position, 
for which a black was identified as "far and away" the best 
candidate, and the subsequent noncompetitive promotion of one of 
the less qualified white candidates to an identical position. 
Burdine requires an explanation, yet none was given.

Ralph Driskell offered extensive testimony regarding 
the discrimination imposed upon him by his white supervisor, 
Wendell Lindsay, including racial slurs and Mr. Lindsay's 
failure to accord him training and other promotional oppor-

52



tunities, while providing such opportunities to white employ­
ees. T.T. 854-56; 858-59; 870. In response, Mr. Lindsay 
testified that he could not recall the incidents (T.T. 1085;
1091). Mr. Lindsay could offer no legitimate reason for Mr. 
Driskell's non-selection in 1980. T.T. 870.

The Court acknowledged that although the teatment accorded 
Jeanette Simmons was a "disparate or different practice" (Record 
Excerpts 50), racial discrimination "was in fact not involved".
The gravamen of Mrs. Simmons' complaint is that a condition was 
imposed upon her eligibility for promotion from a GS-3 Nursing 
Assistant to a GS-4 which was not imposed upon a white GS-3.
Mrs. Simmons was informed by her white Military supervisor, LTC 
Mirian Ellerman that he would first have to complete the course 
of study for her L.P.N. license. Mrs. Simmons attended school at 
her own expense, graduated and was licensed by the State of Ala­
bama as an L.P.N. while remaining employed full-time. T.T. 824-28.

Although Stuart Clark sought to explain the different 
treatment imposed upon Simmons, when compared with Elizabeth 
Patzchske, a white GS-3 later promoted to GS-4 without the 
additional educational requirement, he acknowledged that he 
was not qualified to testify regarding their comparative expe­
rience and training. T.T. 1202. LTC Ellerman, whose deposition 
was admitted into evidence, merely denied that she had told Mrs. 
Simmons that she would have to return to school, even though she 
was fully aware of Mrs. Simmons' school attendance and simultane­
ous full-time employment.

Mr. Clyde Woodard was promoted from WG-5 to a GS-5 position 
in 1975, but he received a reduction in pay. He immediately

53



complained, but received no relief. From 1975 to 1978, Mr.
Woodard worked at reduced pay. Only when Sarah Herndon, a
white commissary employee, was similarly promoted from a WG-
5 to a GS-5 with no reduction in pay was Mr. Woodard's earlier
complaint resolved. T.T. 651-56.

In 1979 Mr. Woodard applied for a position as Warehouseman
Foreman to which James George, a white storeworker, had been

32/detailed on two prior occasions.—  Mr. George was selected 
for the position, and Mr. Woodard filed an EEO complaint charging 
race discrimination. He prevailed, and in July, 1980, was 
appointed Warehouseman Foreman. He also received backpay to the
date of Mr. George's selection. T.T. 652-8. The Court totally

«
disregarded the fact that a new position — at the same level and 
pay —  was created for Mr. George.

Mr. Ellison, the white commissary supervisor, expressed the 
view that no black at the commissary was capable of holding 
supervisory positions T.T. 675.

Mr. Woodard applied in September, 1980, for yet another 
promotion but a white with less qualifications and experience 
was selected instead. Woodard testified, without contradiction, 
that the job primarily involved the warehousing, inventorying 
and ordering of food, and that the white selectee's prior 
experience had been the supervison of a laundry. T.T. 683- 
85. The Court made no comment whatever upon this evidence.

32/ The detailing of white employees at the commissary by 
white supervisors was shown via undisputed testimony to have 
been an oft-used mechanism for pre-training and pre-selection 
of whites and for general enhancement of their promotional 
opportunity. See also testimony of Jack Heath, T.T. 703-05.

54



While Jack Heath's testimony serves to corroborate that of 
Woodard and Thomas regarding conditions at the commissary, 
particularly the discriminatory use of details and other pre­
selection procedures. Mr. Heath testified to disparate treatment 
accorded him by his white supervisor, Joseph Matzura. After 
his detail for six months to a leaderman position, Mr. Matzura 
refused to document those duties in Mr. Heath's 201 file until he 
was faced with a potential EEO complaint. The information was 
not entered until 12 April 1979, too late to have been considered 
in Mr. Heath's rating for GS-6 Warehouseman position he received. 
T.T. 710-13; 1001-05. No explanation whatever was given for Mr. 
Matzura's refusal to enter the data in Mr. Heath's file.

Mr. Dennis Thomas was rated "best qualified" along with
several white applicants for a supervisory position at the
commissary, and the position was later cancelled. Given the
prior detail of a white employee to the position and Mr.
Thomas' testimony particularizing disparate treatment of him

33/in other nonpromotion contexts,—  the Court erred in its 
finding that the cancellation and nonselection of Mr. Thomas 
was not racially motivatd. Record Excerpts 47.

CONCLUSION
The decision below must be reversed.

Respectfully submitted,

3[37 Mr. Thomas testified to: (1) having found two of his
applications in a truck and in the trash can at the commissary 
(T.T. 743-4); (2) disparate treatment in job assignment 
(T.T. 737-40); (3) the posting of a humiliating sign directed 
to him by his supervisor, Matzura (T.T. 732).

55



CERTIFICATE OF SERVICE

I certify that copies of the foregoing Brief for Appellants 
and Record Excerpts were served on opposing counsel by prepaid 
First Class Mail, this 21st day of December 1981, as follows:

Ann Robertson, Esq.
J. R. Brooks
Office of the U.S. Attorney 
U.S. District Courthouse 
Birmingham, Alabama 35203

Counsel for Plaintiffs-Appellants



with the fact that the ordinance covers all
kinds of buildings. It takes little imagina­
tion to see that two picketers before some 
buildings would be useless. Since the right 
to freedom of speech contemplates effective 
communication, this statute denies demon­
strators many meaningful methods of expression.
[citation omitted] Moreover, the statute con­
fines the number of protestors to two at any 
building without indicating that any more would 
necessarily cause riots, block the streets, 
sidewalks, or entrances to the buildings. Those 
limitations are unreasonable because there is no 
legitimate state interest demanding that there 
never be more than two persons picketing or 
demonstrating at any of these places" (emphasis 
added) 395 F.2d at 735.

This conclusion is not altered by the fact that the Mobile or­
dinance permits six, rather than two, persons to picket. The vice of 
the ordinance lies not with the maximum number of persons permitted 
but with its essentially arbitrary limitation on all demonstrations. 
While it might be reasonable under some circumstances to limit to six 
the number of picketers, e.g., picketing a single small storefront 
where more than six persons would necessarily block patrons from en­
tering or leaving, it is equally clear that under other circumstances 
such limitation would be completely unreasonable, e.g., picketing the 
Mobile city auditorium which takes up an area of approximately nine 
square blocks and has a dozen entrances and exits (R. 45, 61). In­
deed, in In Re Wright, 251 F. Supp. 880 (M. D. Ala. 1965), the court 
held that an ordinance identical to the one at issue here could not 
constitutionally be applied to prevent a group of more than six per­
sons from peacefully picketing a department store to protest dis-

21/
criminatory hiring practices. The city cannot, by the enactment
21/ In In Re Wright, supra, the persons charged with a violation 

of the ordinance removed their prosecutions to federal court 
pursuant to 28 U.S.C.A. § 1443. The court allowed the removal

-25-



of a flat rule, abandon any attempt to balance the citizen's interest 
in the effective exercise of First Amendment rights and its own inter­
est in preventing obstructions on its sidewalks.

The Mobile ordinance, moreover, is even broader and more prohib­
itive than the Port Allen ordinance. For while the Port Allen ordi­
nance applies only to picketing on streets and sidewalks, a fairly well- 
defined activity, the Mobile ordinance applies to all "demonstrations 
on sidewalks and in other places. Although the first clause requires 
ten foot spacing between persons who participate in any demonstration 
on any sidewalk, the second clause prohibits more than six persons from 
demonstrating before the same place of business or public facility.
Thus, a protest rally of more than six persons in the public square in 
front of the court house is prohibited regardless of whether it is con­
ducted on the sidewalk, on the grass or in the street. So, too, would 
a silent peace vigil (of more than six persons) in front of the armory,
or a pep rally in support of a football team in front of the public

22/
school.

21/ (Cont'd)and ordered that the criminal prosecutions be dismissed, 251 F. 
Supp. at 882. Although there is an indication in the opinion 
that the court considered the ordinance "valid on its face" (.id), 
it does not appear that its constitutionality was directly at 
issue. And in dismissing the criminal charges, the court did not 
have to reach the issue of the facial constitutionality of the 
ordinance. In any case, Davis v. Francois, supra, leaves no doubt 
that such an ordinance is facially unconstitutional

22/ In the present case, it is apparent that the court below consid­
ered the May 1st gathering in the Plaza in front of the city 
auditorium to be a "demonstration" of more than six persons in 
violation of Section 14-11. The court held: "It is not alleged
that the defendants did anything to hamper the plaintiffs1 right 
of pure freedom of speech, nor did the authorities interfere with 
the"picketing in front of the auditorium which was conducted in 
accordance with the law. Only when the plaintiffs* speech activ­
ities exceeded the lawful number of pickets and obstructed vehic­
ular and pedestrian traffic did the authorities exercise seme 
permissible control over the plaintiffs' conduct" (emphasis added) 
(R. 241)..

- 2 6 -



It can hardly be said, therefore, that Mobile has regulated the 
use of its public places with the narrow specificity which is nec­
essary to give First Amendment freedoms the "breathing space" to sur­
vive. On the contrary. Section 14-11's indiscriminate and heavy-
handed regulation of fundamental rights cannot be justified by any

23/
legitimate government interest. For that reason, it is unconsti­
tutional on its face.

C. Section 14-7: Making Unlawful Obstructing Free
Passage of Streets and Other P\’blic Places.

This ordinance provides?
"It shall be unlawful for any person to stand, loiter, 
walk, or run upon any street, park, public place or 
any portion of private property which has been set 
aside by the owner thereof for the use of customer

23/ The only justification offered by defendants for the ordinance
lies in their claim that Mobile is an old city with narrow rights 
of way for public streets and sidewalks in its commercial— 3t.eas_. 
Thus, they claim that the limitation to six persons is "related 
directly to the physical limitations of the sidewalks in_the com^ 
mercial areas in downtown Mobile" and they conclude that 
more than six persons demonstrating at any time would in and of 
itself unnecessarily interfere with the free travel on the side­
walks of other members of the public" (emphasis added) (R. 94/. 
The reasoning by which defendants arrive at the conclusion that 
more than six persons, regardless of how they are arranged or 
what they are doing, will necessarily interfere with free travel 
on the sidewalks is obscure. For example, a picket line of 
twelve persons in single file will not necessarily obstruct a 
sidewalk of a given width any more than a picket line of six per­
sons. And they do not claim that all sidewalks, even in the 
commercial areas, are the same width. Even on the defendants 
own arguments, however, the ordinance is unconstitutionally over­
broad because it is not limited either to sidewalks or to the 
"commercial areas in downtown Mobile" where there are allegedly 
narrow sidewalks. On the contrary, it applies to all areas of 
the city, including the area surrounding the city auditorium. 
There can be no contention that more than six persons picketing 
or demonstrating in the area around the auditorium would nec­
essarily obstruct free travel (R. 45, 65).

-27-



vehicular travel or parking, so as to obstruct the 
free use and passage thereon by other persons."

Although somewhat less obvious than in the ordinances discussed above, 
the constitutional defect of this ordinance is nevertheless substan­
tial.

In Shuttlesworth v. Birmingham, 382 U. S. 87 (1965), the Supreme
Court upheld the facial validity of a similar ordinance of the City of 

24/
Birmingham on the grounds that an Alabama court had authoritatively 
ruled that it applied "only when a person who stands, loiters, or 
walks on a street or sidewalk so as to obstruct free passage refuses 
to obey a request by an officer to move on" 382 U. S. at 91. On the 
authority of Shuttlesworth and narrowing state court decisions, this 
Court upheld an ordinance of Montgomery, Alabama which provides that 
"[n]o person, after being warned by a police officer, shall loiter on 
the sidewalks in the City in front of business establishments, public 
buildings or houses of worship. . . . "  Wright v. City of Montgomery, 
406 F.2d 867 (5th Cir. 1969).

The Mobile ordinance, however, is different from both the 
Birmingham and Montgomery ordinances in one crucial respect. While 
criminality in both of these ordinances depends upon obstructing free 
passage of a street or sidewalk and being warned or 'requested by a

24/ Section 1142 of the Birmingham General City Code: "It shall be
unlawful for any person or any number of persons to stand, loiter 
or walk upon any street or sidewalk in the city as to obstruct 
free passage over, on or along said street or sidewalk. It shall 
also be unlawful for any person to stand or loiter upon any street 
or sidewalk of the city after having been requested by any po­
lice officer to move on" 382 U. S. at 88.

- 2 8 -



police officer to move on, in the Mobile ordinance the illegal act is
committed simply by obstructing free passage. As the court in Landry.

23l/
v. Palsy, 280 F. Supp. 938 (N. D. 111. 1968) (three judge court) 
pointed out, one of the factors to be taken into consideration in 
determining whether a state penal regulation meets constitutional 
standards of clarity and narrowness is "whether some element of 
knowledge or intent to obstruct a state interest is required" 280 F. 
Supo. at 953. See Adderlev v. Florida. 385 U. S. 39, 42-43 (1966). 
This element, which is supplied in the Birmingham and Montgomery or­
dinances by the requirement of a warning or a request to move on, is 
completely absent in the Mobile ordinance.

This warning provision, which is contained in most obstructing 
free passage and loitering laws, is a recognition of the fact that 
people often "obstruct free passage" of streets or sidewalks by com­
pletely innocent and unwitting conduct. Friends meeting on the side­
walk and stopping to talk, a group of people walking together to a 
common destination, a crowd forming to watch an unusual or interest­
ing incident take place or to listen to a speaker, are all examples 
of daily occurrences which obstruct free passage on streets or side­
walks. Yet, on its face the Mobile ordinance subjects the persons in­
volved in these incidents to immediate arrest.

A law which penalizes such innocuous conduct cannot be squared 
with the due process requirement of the Fourteenth Amendment.

25/ Appeal dismissed, 393 U. S. 220 (1968).

- 2 9 -



Lambert v. California, 355 U. S. 225 (1957); Elfbrandt v. Russel1,
384 U. S. 11 (1967); Kevishian v. Board of Regents, 385 U. S. 589 
(1P56); Baggett v. Bullitt, 377 U. S. 360 (1964). In Lambert, the 
Supreme Court held that some willfulness or awareness of wrongdoing is 
a requisite for the imposition of criminal sanctions. 355 U. S. at 
228-29. There, the court held that a felon registration ordinance, 
which made criminal the failure of a convicted felon to register with 
the police, could not constitutionally be applied to a person who had 
no knowledge of his duty to register. The Court stated:

"(W]e deal here with conduct that is wholly passive—  
mere failure to register. It is unlike the com­
mission of acts, or the failure to act under cir­
cumstances that should alert the doer to the consequen­
ces of his deed. . . . Engrained in our concept of 
due process is the requirement of notice. Notice is 
sometimes essential so that the citizen has the chance 
to defend charges. Notice is required before property 
interests are disturbed, before assessments are made, 
before penalties are assessed. Notice is required 
in a myriad of situations where a penalty or forfeit­
ure might be suffered for failure to act. . . .  [T]he 
same principle is equally appropriate where a person, 
wholly passive and unaware of any wrongdoing, is 
brought to the bar of justice for condemnation in a 
criminal case" 355 U. S. at 228.

Lack of notice is also the vice of the Mobile ordinance. Viola­
tion of its provisions need not be accompanied by any specific act- 
tivity whatsoever. Moreover, upon becoming aware that one is obstruct 
ing free passage, one need not be given an opportunity to comply with 
the law but can be summarily arrested. Justice Holmes wrote in The 
Common Law that "A law which punished conduct which would not be 
blameworthy in the average member of the community would be too se­
vere for that community to bear" Id. at 50. The severity of a 
variety of the applications of the Mobile ordinance is inconsistent

- 3 0 -



with this principle as well as with due process. It is no answer to 
rely upon the self-restraint on the part cf police to refrain from 
arresting people without a warning or a request to move on and thus 
to avoid unjust prosecutions under the ordinance. The Supreme Court 
has concluded that this assurance does not save the ordinance, because 
"well intentioned prosceutors. . .do not neutralize the vice of a 
vague law" Baggett v. Bullitt, 377 U. S. 360, 373 (1964).

In addition to the potential of this ordinance for penalizing 
completely innocuous conduct, it threatens the exercise of funda­
mental rights. Shutt.lesworth recognized the danger such laws have of 
suppressing First Amendment liberties (382 U. S. at 90-91); and their 
interference with the right to travel and with the freedom of asso­
ciation in public places is just as clear. Edwards v . California, 314 
U. S. 160, 184 (1941); Aptheker v. Secretary of State, 378 U. S. 500 
(1964); Shelton v. Tucker, 364 U. S. 479 (1960); Smith v. Hill, 285 
F. Supp. 556, 560 (E.D. N.C. 1968). This ordinance, therefore, like 
the ordinances discussed above sweeps far beyond the city's legiti­
mate interest in preventing obstructions of its streets, sidewalks and 
public places and, in so doing, infringes upon protected freedoms.
The absence of the simple and far less drastic expedient, employed 
by the Birmingham and Montgomery ordinances, of penalizing obstruct­
ions only after a person refuses a policeman's request to move renders

26/
Section 14-7 void for overbreadth.

26/ See discussion at pp. 20-23, above.

- 3 1 -



D • Section 14-13:_Failing to Disperse From An
Unlawful Assea'.b.ly.

This ordinance makes it a crime for any person "comprising a part
of any unlawful assembly on any street or in any public place "to will-
ful.lv and intentionally fail to disperse upon a command given as pro-

27/
vided for in Section 14-12. Section 14-12 makes it the duty of the 
police officer present where there is an unlawful assembly to command 
the persons "to disperse and retire to their respective abodes and 
businesses" and describes by whom, and the manner in which command
shall be given (R. 98c). Section 14-1, in turn, defines unlawful as­
sembly as an "assembly which is unlawful according to the common law 
of England, or Section 407, Title 14, Code of Alabama, as amended, or 
any other state act or statute."

Thus, under this Mobile ordinance the lawfulness of any assembly 
can only be determined by reference to (1) the common law of England; 
2) Section 407, Title 14 of the Code of Alabama; and 3) any other 
state {presumably Alabama) act or statute which makes an assembly of 
persons unlawful. As we establish below, each of "these alternative 
definitions of "unlawful assembly" which are incorporated into the 
ordinance are void for vagueness and overbreadth.

The least obscure of the definitions of unlawful assembly is that 
provided by Title 14, § 407, the Alabama unlawful assembly statute. 
This statute penalizes;

"two or more persons {who] meet together to commit 
a breach of the peace, or to do any other unlawful 
act. . ."

The common law breach of the peace referred to in the statute, is "at 
27/ See footnote 9, abovei

- 3 2 -



its best a confusing offense that may imperil First Amendment rights." 
Gregory v. Chicago, 394 U. S. Ill, 119 (1969) (Black J., concurring).
As the Supreme Court said in Cantwell v. Connecticut, 310 U. S. 296,
308 (1940), breach of the peace is:

"a common law concept of the most general and un­
defined nature. . . . The offense known as 
breach of the peace embraces a great variety of 
conduct destroying or menacing public order and 
tranquility. It includes not only violent acts 
but acts and words likely to produce violence 
in others."

And in both Cox v. Louisiana, 379 U. S. 536 (1965) and Edwards v. South 
Carolina, 372 U. S. 229 (1963), the Supreme Court condemned on their 
face statutory and common law breach of the peace offenses, because 
they swept within their broad scope activities that were constitution­
ally protected free speech and assembly. See Brown v. Louisiana, 383 
U. S. 131, 143 (1966) (Brennan, J., concurring).

The breach of the peace provision in the Alabama unlawful as­
sembly statute can fare no better. As authoritatively defined by the 
Alabama Court of Appeals in Abernathy v. State. 42 Ala. App. 149, 155 
So.2d 586 (1962), reversed on other grounds, 380 U. S. 447 (1965);

"'An unlawful assembly is an assembly of three 
or more persons. Our statute has reduced the 
minimum number of participants to two) who, 
with intent to carry out any common purpose, 
assemble in such a manner, or so conduct them­
selves when assembled, as to cause persons in 
the neighborhood of such assembly to fear that 
the persons so assembled would commit a breach 
of the peace or provoke others to do so.
In general terms a breach of the peace is a 
violation of public order, a disturbance of 
the public tranquility, by any act or conduct 
inciting to violence or tending to provoke or 
excite others to break the peace" 155 So.2d at 
591 (emphasis added).

The Alabama court's definition of breach of the peace word for word

-33-



the same as the definition given by the Supreme Court of South Carolina 
to the offeense of common law breach of the peace that was struck down 
in Edwards, 372 U. S, at 234. The constitutional vice of the South 
Carolina law which penalized expression of opinions "sufficiently op­
posed to the views of the majority of the community to attract a crowd 
and necessitate police protection" (372 U. S. at 237) inheres equally 
in the Alabama law. For the Alabama statute, as construed, would pen­
alize two or more persons who, when assembled, act in such a way as to 
provoke or excite others to violate "public order" or disturb public 
tranquility." Such a law, which penalizes peaceful conduct because it 
"stirred people to anger, invited public dispute, or brought about a 
condition of unrest" cannot stand, Terminiello v. Chicago, 337 U. S. 1,

5 (1949).
In Devine v. Wood, 286 F. Supp. 102 (M.D. Ala. 1968), a three 

judge court concluded that this Alabama statute was not void for vague­
ness or for overbreadth. The court held that:

"The statute in question as construed by the Alabama 
courts precludes conviction of those participating 
in peaceful assembly and is sufficiently definite 
to meet due process standards," 286 F. Supp. at 105.

But the only Alabama case referred to, and indeed the only Alabama case 
construing the unlawful assembly statute, Abernathy v. State, sup_ra, 
leads to precisely the opposite conclusion. In Abernathy the only 
evidence was that the defendants, an integrated group of Freedom Riders, 
sought service at a racially segregated lunch counter at the bus term­
inal in Montgomery, Alabama. There was a hostile crowd of four or 
five hundred people in the vicinity of the terminal as well as 
over one hundred law enforcement officers stationed outside. The

- 3 4 -



defendants were arrested after an outburst of noise was heard from 
the crowd upon seeing defendants sit down at the counter and because 
the "air was electric with excitement and tension," 155 So.2d at 588. 
Despite the completely peaceful conduct of the defendants the court 
concluded that:

"The question of whether certain conduct con­
stitutes a breach of the peace depends largely 
upon the facts of each particular case and the 
circumstances surrounding the incident. An act 
which would be lawful in some circumstances may 
amount to a breach of the peace if done under 
other circumstances.
The incident occurred during a period of great 
public excitement. The evidence shows that the 
defendant was aware of the tenseness of tne sit­
uation and the temper of the crowd. We think 
it could not be said that he did not have knowl­
edge that his conduct was calculated to incite 
a breach of the peace," 155 So. 2d at 592.

Under this unlawful assembly statute, therefore, a lawful act of sit­
ting at a lunch counter became unlawful solely because of "great 
public excitement" and the "tenseness" and "temper of a hostile 
crowd. The conduct which was held to constitute a breach of the 
peace, moreover, was nothing more than the exercise of the First 
Amendment right "in a peaceable and orderly manner to protest by 
silent and reproachful presence, in a place where the protestant has 
every right to be, the unconstitutional segregation of public facil­
ities, "Brown v. Louisiana, supra, 383 U. S. at 142. Indeed, Alabama 
has applied this statute to just the type of conduct that the Supreme 
Court has said cannot constitutionally be penalized. In Tavlor v. 
Louisiana, 370 U. S. 154 (1962) it was held that b.larV person® who 
had conducted a sit-in in a "white*’ wai ting room of a bus depot could

- 3 5 -



not be convicted of a breach of the peace because of the "restless­
ness" of a crowd of white onlookers. And in Cox v. Louisiana, 379 
U. S. 536 (1965) the Court reversed a breach of the peace conviction 
of the leader of a group of 1,500 demonstrators which had occasioned 
"grumblings" on the part of a hostile white crowd of between 100 and 
300. See, also, Edwards v. South Carolina, supra; Wright v. Georgia, 
373 U. S. 284 (1963)? Terminiello v. Chicago, supra.

The Abernathy case, therefore, flies in the face of the firmly 
established principle that:

"Participants in an orderly demonstration in a 
public place are not chargeable with the dan­
ger, unprovoked except by the fact of the 
constitutionally protected demonstration it­
self, that their critics might react with 
disorder or violence" Brown v. Louisiana,
383 U. S. 131, 133, n. 1 (1966).

In this light, it is difficult to understand how the Devine court
could have found that the statute "as construed by Alabama courts
precludes conviction of those participating in a peaceful assembly,"
286 F. Supp. at 105. We think that decision was in error and should

28/
not be followed here.
28/ In Wright v. City of Montgomery, 406 F.2d 867 (5th Cir. 1969), 

this Court upheld the constitutionality of a Montgomery disor­
derly conduct ordinance which made it unlawful "to disturb the 
peace of others by violent, profane, indecent, offensive or 
boisterous conduct or language, or by conduct calculated to pro­
voke a breach of the peace" on the ground that state court deci­
sions in cases involving similar ordinances had narrowed the 
ordinance to within constitutional bounds. That decision cannot 
be taken as support for the validity of the unlawful assembly 
statute at issue here. Whereas in Wright state court decisions 
interpreting nearly identical ordinances saved the Montgomery 
ordinance, in the present case the construction given the unlaw­
ful assembly statute in Abernathy v. State, supra, clearly per­
mits its application to constitutionally protected activities.
It is only by the tortuous course of relying on the inapposite 
narrowing decisions referred to in Wright and disregarding the in 
point decision in Abernathy that the constitutionality of the 
unlawful assembly statute could be upheld.

- 3 6 -



The other element of the unlawful assembly statute, which the 
Devine court did not even consider, punishes an assembly "to do any
other unlawful "act." In Landry v. Daley. 280 F. Supp. 938 (N.D. 111.

29/
1968), a three judge court condemned an identical provision of an 
Illinois statute that incorporated the common law offense of "unlawful 
assembly." The court said:

"We do not doubt that the State of Illinois 
has a valid interest in preventing a project 
which will breach its criminal laws. However, 
the language of subparagraph (a)(2) is not so 
limited. This provision proscribes an assembly 
to do an 'unlawful act.' The phrase 'unlawful 
act' in its normal meaning is not limited to 
criminal illegality; it includes city regula­
tory ordinances, quasi-criminal ordinances, 
torts, or other civil wrongs. This implies 
protection of other state interests which are 
not readily apparent, and which may not justify 
suppression of speech or assembly.

This provision certainly goes beyond narrowly 
drawn statutes 'concerning the time, place, dura­
tion, or manner of use of the streets for public 
assemblies.' Moreover, the phrase 'unlawful act' 
fails to apprise the public of the prohibited con­
duct. Men of ordinary intelligence have no way 
of ascertaining what breach of criminal law or 
civil law may subject them to arrest and prose­
cution" [citations omitted] 280 F. Supp. at 955.

The statute, then, is not limited to violent or disorderly unlawful
acts, but can include even the most peaceful and innocuous act which
happens to violate some criminal or civil provision of state, local or

30/
perhaps even federal law._____ On its face the law would penalize
29/ See footnote 25, above.
30/ In Rollins v. Shannon. 292 F. Supp. 580 (E.D. Mo. 1968), a three 

judge court upheld the constitutionality of the Missouri unlawful 
assembly statute. Unlike the Alabama statute, however, the 
Missouri statute only covered an "unlawful act, with force or vio­
lence. against the person or property, or against the peace or to 
the terror of the people. . ." (emphasis added). The court also 
found that under Missouri law, "Unlawful act must be taken as 
meaning an act which is prohibited by the criminal law" 292 F. 
Supp. at 590. Thus, the Missouri statute only applied to crimi­
nal acts committed with force or violence.

-37-



landowners who are planning to build a structure in violation of a 
local zoning ordinance, a group of people who cross a street against 
the light in violation of a traffic ordinance, or a group of business­
men who fail to secure a license or pay a franchise tax. It incor­
porates by reference literally hundreds of criminal, quasi-criminal, 
and civil wrongs. What may only provide for civil liability or a fine 
becomes a misdemeanor punishable by fine and imprisonment under the
Mobile Code when committed by two or more persons.

As the court in Landrv recognized:
"Perhaps this provision's greatest vice is that 
it is a ready vehicle for the suppression of 
ideas. Failing as it does to define what con­
stitutes an 'unlawful act* it leaves too much 
to the calculation of its enforcer. If the 
ideas portrayed by demonstrators do not coin­
cide with the subjective views of police, any 
technical violation of either civil or crim­
inal law may be invoked to suppress a demon­
stration. The 'potential for arbitrarily 
suppressing First Amendment liberties is all 
too clear. Shuttlesworth v. City of Birmingham,
382 U. S. 87, 90-91, 86 S. Ct. 211, 15 L.ed. 2d.
76 (1965). In light of the protection afforded 
peaceful assembly by the First Amendment, we 
conclude that this provision is impermissibly 
vague and overbroad" 280 F. Supp. at 955.

In penalizing people who merely meet together to cio any unlawful
act, this provision also omits the commission of some overt act as a
prerequisite for arrest and conviction. Such an omission has been
held to invalidate,on the ground that it infringes upon freedom of
assembly, a similar ordinance making it a crime for any person to
"collect in bodies or in crowds for unlawful purposes as defined by
the current ordinances of the City of Atlanta," Hunter v. Alien_,
286 F. Supp. 830 (N. D. Ga. 1968). The court in Hunter was:

"constrained to beleive that the First Amend­
ment permits assembly even fox unlawful

- 3 8 -



purposes so long as it is limited to a 
peaceful discussion of such purpose.
These sections do not punish the exhorta­
tion, encouragement, or commission of 
preparatory acts leading toward a viola­
tion of the laws, but punish the assembly 
itself. Evil thoughts alone do not con­
stitute any crime. Nor would peaceable 
assembly with evil thoughts do so either.
Thus, a quiet meeting in a back room of 
two or more persons even if it were to 
conjure up some future violation of law 
is permissible. It is only when such as­
sembly results in the commission of overt 
acts that it becomes unlawful" [citations 
omitted] 286 F. Supp. at 837.

The definition of unlawful assembly under the Mobile ordinance 
ir, broader still than Title 14, § 407, both elements of which cf 
which we have above shown to be unconstitutionally overbroad. It in­
cludes any assembly which was unlawful "according to the common law 
of England."

Even though Title 14, § 407 itself incorporates the common law
offense of unlawful assembly, see Abernathy v. State, supra, 155 So.
2d at 591, the specific reference to the common law of England must
be taken to import a separate and different definition of unlawful

11/
assembly into the ordinance.

As it finally evolved at common law, the offense of unlawful 
assembly, by weight of authority, consisted of the assembling to­
gether of three or more persons with a common design or intent to 
accomplish a lawful or unlawful purpose by means such as would give

31/ To hold that the reference to the common law adds nothing to the 
other definition would be to consider it unnecessary and sur­
plusage in violation of a basic canon of statutory construction. 
See England v. Moore Equipment Co., 94 F. Supp. 532, aff'd 185 
F. 2d 1019 (9th Cir. 1951).

- 3 9 -



rational, firm, and courageous persons in the neighborhood of the
assembly a well-grounded fear of a breach of the peace. Shields v. 
State, 187 Wis. 448, 204 N. W. 486 (1925); Re£. v. Graham, 16 Cox CC 
420 (1888); see, also, 71 ALR 2d 878 for cases cited therein. While 
the breach of the peace provision here seems to add little, if any­
thing, to the breach of the peace provision in Title 14, § 407, the 
common law definition explicitly includes within its scope an assem­
bly for lawful, as well as unlawful, purposes. It cannot, therefore, 
be said that this definition "proscribes only those assemblies which 
are for the purpose of committing a breach of the peace or doing an 
unlawful act" Devine v. Wood, supra, 236 F. Supp. at 105. And by 
including assemblies for lawful purposes, the common law offense falls 
squarely within the condemnation of the First and Fourteenth Amendment 
Cox v. Louisiana, supra; Edwards v. South Carolina, supra; Wright v. 
Georgia, supra; Carmichael v. Allen, 267 F. Supp. 985 (N. D. Ga. 1967) 

If the overbroadness of the foregoing provisions of the Mobile 
ordinance are not themselves sufficient to render the ordinance un­
constitutional on its face, the coup de grace is surely administered 
by tbeprovision which penalizes any "assembly which is unlawful accord 
ing to. . .any other [than Title 14, § 407] state act or statute." A 
cursory examination of the Alabama Code turns up at least six other 
statutes which purport to make certain types of assemblies unlawful.
Title 14, § 21 makes unlawful an assembly "for the purpose of advo-

32/
eating or teaching the doctrine of criminal anarchy;" Title 14,
32/ § 21. Assemblages of anarchists - Whenever two or more persons

assemble for the purpose of advocating or teaching the doctrine 
of criminal anarchy, as defined in section 19 of this title, 
such an assembly is unlawful, and every person voluntarily par­
ticipating therein by his presence, and or instigation shall be 
punished. . .

- 4 0 -



§ 407(1) makes it unlawful to "induce the assembling of a crowd" at 
which persons "do, aid or assist in doing any act or make any ges­
tures cr communications which are calculated to or will probably so 
outrage the sense of decency and morals or transgress the customs,
pattern of life and habits of the people of Alabama as to be likely

33/
to cause a riot or breach of the peace;" Title 14, § 409 punishes

34?
an unlawful assembly which demolishes buildings or ships;" Title 14, * 2

33/ § 407(1) Outraging assembly resulting in riot cr breach of
peace; aiding and abetting - 1. Whoever, after having done any­
thing to induce the assembling of a crowd, or, after having 
given or knowingly permitted to be given public knowledge that 
he, or any other person, would, at a time or place certain in 
this state, do, aid, or assist in doing any act or make any ges­
tures or communications which are calculated to or will probably 
so outrage the sense of decency and morals or so violate or 
transgress the customs, pattern of life and habits of the people 
of Alabama as to be likely to cause a riot or breach of the 
peace at such time or place, and does in fact do or aid or assist 
in doing any such act, or gestures, or communications, shall be 
guilty of a misdemeanor and upon conviction shall be fined a sum 
not exceeding three hundred dollars and may also be imprisoned 
for a period of not exceeding six months.

2. Whoever shall aid or abet in the commission of the 
crime of inciting to riot as defined in subsection 1 of this 
section shall be punished as a principal.

34/ § 409. Riots and routs. - If any persons, unlawfully assembled,
demolish, pull down, or destroy, or begin to demolish, pull 
down, or destroy, any dwelling house or other building, or any 
ship or vessel, they shall each be punished, on conviction, at 
the discretion of the jury, by fine and imprisonment in the 
county jail, or by imprisonment in the penitentiary, for not 
less than two nor more than five years.

- 4 1 -



§ 413 makes unlawful a "combination. . .to resist the execution of any
leqal process or other mandate of a court of competent jurisdiction,

35/
under circumstances not amounting to a riot;"Title 26, § 385 makes xt 
unlawful for persons "to assemble at or near any place of employment
. . . and by force or violence or threat thereof prevent or attempt

36/
to prevent any person from engaging in any lawful vocation;" an<j
Title 35, § 176 penalizes persons who assemble "under any name in a
military capacity for the purpose of drilling, parading or marching
at any time or place or otherwise take up or bear arms in any such

37/
capacity, without authority of the governor."

The court in Landry v. 'Daley, supra, noted that one of the fac­
tors to be considered in determining whether a law meets constitutiona.

35/ § 413. Combination to resist process.- - Every person who enters 
into a combination with another to resist the execution of any 
legal process or other mandate of a court of competent juris­
diction, under circumstances not amounting to a riot, shall be 
guilty of a misdemeanor.

36/ § 335. Same; unlawful assemblage. - It shall be unlawful for 
any person acting in concert with one or more other persons, to 
assemble at or near any place of employment in this state and 
by force or violence or threat thereof prevent or attempt to 
prevent any person from engaging in any lawful vocation, or for 
any person acting either by himself, or as a member of any group 
cr organization or acting in concert with one or more other per­
sons, to promote, encourage or aid in any such unlawful assemblage.

37/ § 176. Unauthorized military organizations. - Any two or more
persons, whether with or without uniform, who associate, assemble, 
or congregate together by or under any name in a military capacity 
for the purpose of drilling, parading or marching at any time or 
place or otherwise take up or bear arms in any such capacity, 
without authority of the governor, must on conviction be fined not 
mere than one thousand dollars. This section does not apply to 
any school or college where military training and instruction is 
given under the provision of state or federal laws, nor to the 
order of Kinghts of Templar, Knights of Pythias, Patriarchs 
Militant, or Uniform Rank Woodmen of the World.

- 4 2 -



standards of clarity and narrowness is "whether its clarity is de­
pendent upon manifold cross-references to interrelated enactments or 
regulations," 280 F. Supp. at 953. See Keyishian v. Board of_Reqents, 
385 U. S. 589 (1967). It is manifest that the incorporation by ref- 
eirence into the Mobile ordinance of this odd variety or ĉ .im...nal 
statutes renders the ordinance so prolix and confusing as to require 
its invalidation. The effect of this ordinance^ incorporation of 
such multifarious provisions of state law is not unlike the effect 
of the Alabama vagrancy law which allowed conviction of an accused 
upon proof at trial of violation of any of one of thirteen subsections 
Broughton v. Brewer, 298 F. Supp. 260, 271 (S. D. Ala. 1969; (three 
judge court). The violation of due process because of the absence of
any fair notice to the accused of the specific offense for which he ws
being prosecuted,that was a significant factor in invalidating the

38/
vagrancy law, is equally present here. Id.

Like the Alabama vagrancy law, furthermore, a number of tne sub­
stantive provisions of the unlawful assembly ordinance (incorpor­
ated by reference to "other state acts or statutes") are themselves 
unconstitutionally vague and overbroad. It is enough to note that 
the Supreme Court has regularly struck down laws similar to Title 14,
§ 21, which penalize the mere teaching of abstract doctrines.

38/ in Alabama an accused is not entitled to a bill of particulars
in a criminal prosecution. Jones v. State, 136 Ala. 118, ^i ^o. 
236 (1903) ; Mitchell v. State, 41 Ala. App. 254, 130 So. 2d .̂̂ 8 
(1961). Under Alabama practice, therefore, a person charged 
with violation of Section 14-13 by virtue of a failure to dis­
perse from an unlawful assembly would have no way of determining 
what specific provision of Alabama law made the assembly ur._aA7- 
ful. Cf. Broughton v. Brewer, supra.

- 4 3 -



Elfbrandt v. Russell, 384 U. S. 11 (1966)? Keyishian v. Board_of
Regents, supra; Baggett v, Bullitt, 377 U. S. 360 (1964). Title 14,
§ 407(1) explicitly makes unlawful the peaceful expression of unpop­
ular views in violation of the First and Fourteenth Amendments.. Edwards 
v. South Carolina, supra; Terminiello v, Chicago, supra. Title 14,
§ 413 is unconstitutionally overbroad since it penalizes what may be a

39/
perfectly legal and peaceful resistance of process. And Title 35,
§ 176 is unconstitutionally vague and overbroad because it penalizes 
persons who assemble "in a military capacity" to drill, parade or 
march. No definition is provided of what is a "military capacity." 
Under this statute, the Boy Scouts as well as the Black Panthers may 
be an unauthorized military organization. As in Broughton, therefore, 
"the interaction of the substantive statutory offense[s] and Alabama 
criminal procedure" renders this aspect of the Mobile unlawful assem­
bly ordinance "so vague that it violates the fair notice requirement 
of due process guaranteed by the Fourteenth Amendment," Broughton v. 
Brewer, supra, 298 F. Supp. at 271.

39/ This statute might, for example, penalize an attempt to enjoin 
the execution of state court process in a federal court. See, 
e.g., Macheskv v. Bizzell. 414 F.2d 283 (5th Cir. 1969)*

4 4 -



I I

Plaintiffs Are Being Prosecuted for the 
Purpose,of Discouraging the Exercise of 
Their~First Amendment Rights to Protest 
the Denial of Equal Ricrhts to the Black 
Community of Mobile.

Plaintiffs seek to enjoin defendants from interfering by arrest, 
prosecution and the threat of prosecution with their "exercise. . .of 
basic constitutional rights in their most pristine and classic form" 
Edwards v. South Carolina. 372 U. S. 229, 235 (1963). There can be 
no question that the entire range of plaintiffs' conduct at issue in 
this lawsuit is within the ambit of the First Amendment. As this 
Court has said:

"Peaceful picketing for the object of elimina­
ting racial discrimination in department 
stores open to the general public is a right 
embraced in free speech under the First Amend­
ment" Kelly v. Page, 335 F.2d 114, 119 (5th 
Cir. 1964)7

See, also, Garner v. Louisiana. 368 U. S. 157, 201 (1961); Machesky 
v. B.izzell, 414 F.2d 283 (5th Cir, 1969); NAACP v. Thompson, 357 F.2d 
831 (5th Cir, 1966).

Nor is there any doubt that peaceful marching and gatherings in
public places for the purpose of seeking redress of grievances is
fully protected. First Amendment rights

" . . .  are not confined to verbal expression.
They embrace appropriate types of action which 
certainly include the right in a peaceable and 
orderly manner to protest by silent and re­
proachful presence, in a place where the pro- 
testant has every right to be, the unconstitu­
tional segregation of public facilities,"
Brown v. Louisiana, 383 U. S. 131, 142 (1966).

- 4 5 -



In its most recent pronouncement on this subject the Supreme Court 
held that a night time march from the city hall to the Mayor's resi­
dence to press claims for desegregation of the public schools "if 
peaceful and orderly, falls well within the sphere of conduct pro­
tected by the First Amendment," Gregory v. Chicago, 394 U. S. Ill,
112 (1969);see Edwards v. South Carolina, supra; Shuttlesworth v. 
Birmingham, 394 U, S. 147 (1969),

It is equally clear that plaintiffs' conduct did not violate the 
ordinances under which they are being charged, assuming arguendo that 
the ordinances are constitutional. The “parade" that allegedly vio­
lated Section 14-051 consisted of nothing more than twenty persons
leaving Spanish Plaza after being ordered to do so by the police

40/
(R. 22, 26, 27, 31, 215a, 215b). Nor is there a shred of evidence
to support the remaining fifty arrests made in the vicinity of the
auditorium and the Plaza for obstructing free passage of streets,

41/
sidewalks or public places (R. 24-25, 69, 70, 73, 75, 216). On the 
contrary, the Acting Chief of Police admits that the sole reason for 
the arrests was the failure to disperse pursuant to an order issued
"for the sole purpose of keeping 

42/
i £ ,m L __________________

down potential explosive situations"

40/ See pp. 4-6, above.
41/ See pp. 6-8, above.
42/ The alleged existence of "explosive" situations and a baseless 

fear of violence or disturbance has been a standard justifica­
tion for the mass arrest of persons engaged in civil rights 
demonstrations. See Cox v. Louisiana, 379 U. S. 536, 548 n. 12 
(1965); Edwards v. South Carolina, 372 U. S. 229, 231 (1963).
It has uniformly been rejected as unsupported by the evidence as 
well as an invalid basis for interfering with protected activi­
ties.

- 4 6



The arrests made on May 2nd and 3rd for failing to disperse from 
an "unlawful assembly" are similarly devoid of evidentiary support. 
Under any constitutional construction of Section 14-13,, the orderly 
arid peaceful protest demonstrations on the sidewalks and streets of 
Mobile could not be an "unlawful assembly." However indefinite are 
the boundaries of "unlawful assembly" and "breach of the peace" ac­
cording to the common law of England and under Alabama law (Title 14,
§ 407), the "hard core" conduct that clearly comes within their pro­
hibitions must be violent and tumultuous. Indeed, in Devine v. Wood, 
286 F. Supp. 102 (M.D. Ala. 1963), the three judge court upheld the 
facial constitutionality of the Alabama assembly statute which is 
incorporated by reference in Section 14-13 only because it concluded 
that the statute did not reach peaceful conduct.

Defendants do not even contend that the demonstrators on May 2nd 
and 3rd committed a breach of the peace or were violent and tumul­
tuous. Rather, their position seems to be that plaintiffs were in 
violation of the unlawful assembly ordinance because their gathering 
in the street and on the sidewalks without a permit was a violation 
of the parade ordinance and, therefore, an "unlawful act" within the 
meaning of Title 14, § 407. As discussed in Part I A, above, however,
the parade ordinance is unconstitutional on its face; and a failure

43/
to obtain a permit cannot be illegal. Even assuming the constitu­
tionality of the parade ordinance, however, its violation is not an
"unlawful act" within the meaning of Title 14, § 407. If the ordi-

44/
nance is to escape facial invalidity, it must be because "unlawful 
43/ See pp. 17-23, above.
44/ See pp. 37-38, above.

- 4 7 -



act" refers only to a criminal act similar to a breach of the peace,
i.e., a violent or tumultuous criminal act which endangers public 

45/
order.

Certainly, therefore, the completely peaceful demonstrations on
Mey 2nd and 3rd, which the court below referred to as "gatherings,"

46/
(R. 24C ) did not come within the purview of a constitutional unlaw­
ful assembly statute. Under Alabama law, moreover, a violation of a 
municipal ordinance is not even considered a "crime" nor is a prose­
cution for its violation considered a "criminal prosecution. " Donahey 
v. City of Montgomery. 42 Ala. App. 20, 173 So. 2d 832, 834 (1965); 
City of Mobile v. McCown Oil Co., 225 Ala. 688, 148 So. 402 (1933).

The charges against plaintiffs and the members of their class 
arising out of the May 1st, 2nd and 3rd incidents, are so totally de­
void. of evidentiary support that any convictions would violate due 
process. Thompson v. City of Louisville. 362 U. S. 199 (I960);
C’jL&vyijL v * City of Chicago. 394 U. S. Ill (1969); cf. Erown v. 
Louisiana, 383 U. S. 131 (1966). Indeed, it is plain that the de­
fendants "have invoked, and threaten to continue to invoke criminal

45/ Cf. Rollins v. Shannon. 292 F. Supp. 580 (E. D. Mo. 1968) (three 
judge court) upholding the constitutionality of the similar 
Missouri unlawful assembly statute partly on the grounds that in 
that statute "unlawful act" meant "any act which is prohibited 
by criminal law" 292 F. Supp. at 590. The Missouri statute, 
moreover, only penalized unlawful acts committed "with force or 
violence."

46/ The court below drew no distinction between the "gatherings" on 
May 1st and those on May 2nd and 3rd for the purpose of its de­
cision (R. 240).

4 8



process without any hope of ultimate success, but only to discourage
appellants' civil rights activities," Dombrowski v. Pfister, 380 U. S.

47/
470, 480 (1965). As this Court concluded with respect to similar 
prosecutions of persons engaged in civil rights activities:

"(t]he utter baselessness of any conceivable 
contention that the. . .statutes prohibited 
any conduct in which these persons were en­
gaged, merely buttresses the undisputed 
evidence. . .that these protected acts [attempts 
to enjoy equal public accommodations] constituted 
the conduct for which they were then and there 
arrested" Achtenbarg v. State of Mississippi, 393 
F.2d 468, 474 (5th Cir. 1968).

In addition, there is a history of the harassment of the Mobile 
police of persons connected with NOW who are engaged in civil rights 
activities. On November 21, 1968, for example, two NOW workers who 
were picketing and distributing handbills in downtown Mobile to 
protest racially discriminatory hiring practices of the merchants were 
arrested and jailed under the Alabama "anti-boycott" statute. Code of 
Ala., Tit. 14, § 56 (1958 rev.) despite the fact that this Court had

47/ Defendants themselves appear to acknowledge that the ordinances 
under which plaintiffs are being prosecuted may not be applica­
ble to their conduct. On page 2 of defendants' (city officials) 
brief in support of their motion to dismiss, for example, they 
claim that plaintiffs may be prosecuted under different ordi­
nances than those under which they are now charged. When and if 
such different charges are prosecuted, it will be appropriate to 
deal with the validity of those prosecutions. However, since 
defendants are presently prosecuting plaintiffs under the specific 
ordinances discussed in Part I, above, they must stand or fall 
on their validity. Otherwise, the thrust of a federal action 
seaking to enjoin unconstitutional state prosecutions could al­
ways be blunted and undercut by the possibility that the de­
fendants might prosecute on different charges.

- 4 9 -



declared the statute to be unconstitutional on its face one month be­
fore (October 22, 1968) in Kirkland v. Wallace, 403 F.2d 413 (5th Cir.
1963). See Broucrhton v. Brewer, 298 F. Supp. 260, 263 n. 3 (S. D.

" 43/
Ala. 1969) (three judge court). On the same day three black 
students who were also picketing and handbilling were arrested as 
"vagrants," held on the unusually high bond of $1000, and were unable 
to secure their release for over eight hours despite the efforts of 
two respected members of the black community whose property was 
assessed in excess of $28,000. Id. at 263-64. Although the court in 
Broucrhton obviously considered these prosecutions to be in bad faith, 
298 F. Supp. at 259, it found it unnecessary to grant injunctive 
relief in view of its holding that the vagrancy statute was unconsti­
tutional on its face. Id. at 271.

What this Court concluded in United States v. McLeod, 385 F.2d 
734 (5th Cir. 1967) in the context of the systematic interference by 
local officials with voting rights, is equally applicable to the in­
terference in the present case with the right to protest unequal 
employment opportunities:

"[FJirst that a baseless arrest and prosecu­
tion of a person prominently active in a 
voting drive compels the inference of an un­
lawful purpose to interfere with the right 
to vote. Second, constitutionally invalid 
interference with peaceful voting demonstra­
tions require that the inference be drawn."

49/ These charges were ultimately dropped. 298 F. Supp. at 263 
n. 3.

- 5 0 -



To this we add a third consideration. The mistreatment and harass­
ment of the persons arrested during their incarceration in the city
jail is further evidence of a calculated effort to discourage the

45/
civil rights activities that led to the arrests. So, too, is the 
conduct of the defendants making the release of many of the demon­
strators difficult by requiring unreasonably high bonds in some cases
and by refusing to approve bonds or to release persons in others

50/
(R. 67, 74, 78, 80). C f. Smith v. Grady, 411 F.2d 181, 185 (5th Cir. 1969). -----  -----

Thus, the prosecutions in the instant case appear to be part of
a pattern by which overbroad laws are used in Mobile as tools for
"harsh and discriminatory enforcement by prosecuting officials against
particular groups deemed to merit their displeasure," Thornhill v.
Alabama, 310 U. S. 88, 97-98 (1940). That NOW's campaign to secure
H 7 ~  The court below concluded that the allegations of paragraph X of 

the amended complaint (R. 43-44) (supported in all particulars 
by the record —  see, e.g., R. 29, 30, 67, 74,78., 81, 217) that 
plaintiffs were mistreated for the purpose of discouraging their 
civil rights activities did not state a claim for relief (R. 242). 
In this ruling the court was clearly in error. Prison officials 
are subject to the same constitutional restraints as other state 
officers. See Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968); 
Rivers v. Royster, 360 F.2d 592 (4th Cir. 1966); Fulwood v. 
Clemmer, 206 F. Supp. 370 (D. D.C. 1962). Intentional mistreat­
ment of demonstrators while in jail has as great a chilling 
effect on the exercise of First Amendment rights as does their 
arrest and prosecution. See Dombrowski v. Pfister, supra;
Cameron v. Johnson, 390 U. S. 611 (1968). Plaintiffs are, there­
fore, at the very least entitled to an evidentiary hearing on 
their claims.

50/ The court below found that the "allegation that unreasonable
bonds were set and that extreme difficulty was incurred by indi­
viduals seeking to be released from custody is not supported by 
the record" (R. 242). Plaintiffs are at least entitled to a 
hearing on this disputed factual issue and it was error for the 
court to resolve it on the basis of affidavits only. See pp.
58 to 61, below.

- 5 1



equal rights for the black community of Mobile has been a thorn in 
the side of the Mobile officialdom is clear by the previous at­
tempts to silence it. That the arrests and prosecutions at issue 
here are motivated by the same desire is equally clear. What 
amounts to defendants' sole justification for the arrests is their 
claim that plaintiffs' presence in the streets created a "potentially 
explosive situation" (R. 171). Such a contention is reminiscent of 
the use of conventional breach of the peace or trespass laws for en­
forcing segregation in what this Court referred to as "one of the 
sophisticated methods for circumventing the law" United.States v. 
Citv of Jackson. 318 F.2d 1, 6 (5th Cir. 1963). In light of this 
Court's "thorough education in 'Sophisticated circumvention'" (id 
at 5) the record in this case amply warrants the conclusion that 
the criminal prosecutions of plaintiffs and the members of their 
class are for the purpose of deterring them in the exercise of their 
First Amendment right to protest racial discrimination in Mobile.

- 5 2



Ill
Hie Court Below Erred In Failing
To Grant The Equitable Relief 
Pr?»^ed For By Plaintiffs.

A. Plaintiffs Are Entitled to a Preliminary 
Injunction Enjoining Their Criminal Pros­
ecutions.

Although a federal court should be slow to act "where its powers 
are invoked to interfere with threatened criminal prosecutions in a 
state court/" Douglas v. City of Jeannette, 319 U. S. 157/ 162 (1943), 
in compelling cases this principle of comity has yielded to the respon­
sibility of federal courts to enjoin the deprivation of constitutional 
rights— especially those involving sensitive First Amendment freedoms. 
Dombrowski v. Pfister, 380 U. S. 479 (1965); Cameron v. Johnson., 390 
U. S. 611 (1968); Sheridan v. Garrison, 415 F.2d 699 (5th Cir. 1969); 
Machesky v. Bizzell, 414 F.2d 283 (5th Cir. 1969). Such a compelling 
case is presented when "defense of the State's criminal prosecution 
will not assure adequate vindication of constitutional rights," 
Donbrowski, supra at 485.

Dombrowski stands for the proposition that a state remedy is in­
adequate and federal injunctive relief is justified when it is shown 
either that "a substantial loss or impairment of freedoms of expres­
sion will occur if (plaintiffs] must await the state court's disposi­
tion and ultimate review in this Court of any adverse determination, 
380 U. S. at 486, or where the state criminal process is abusively in­
voked "without any hope of ultimate success, but only to discourage 
[plaintiffs'] civil rights activities," 380 U. S. at 490; see Cameron 
v. Johnson, supra.

Both of these tests are met on the facts of this case. Here, as
- 5 3 -



in Dombrowski. the defendants are threatening plaintiffs with crim­
inal prosecutions under ordinances which, as we pointed out in 
Section I, above, are susceptible of sweeping and improper applica­
tion abridging First Amendment rights because of their overbreadth, 
HSACP v. Button, 371 U. S. 415, 433 (1963). The threat to plaintiffs 
and the other members of their class of arrest, incarceration under 
high bail and prosecution as a result of their activities in seeking 
redress of their grievances will inevitably discourage the exercise 
of these rights. Since the fact of plaintiffs' prosecution alone, 
unaffected by the prospects of its success or failure in the state 
courts, has a "chilling effect" upon their exercise of First Amend­
ment rights, they have established sufficient irreparable injury to 
justify federal injunctive relief. Dombrowski, 380 U. S. at 489.

As to the alternative ground for federal intervention to enjoin 
state criminal prosecutions, plaintiffs have shown in Section II, 
above, that "First Amendment rights, which are basic to our freedom, 
are imperiled by calculated, deliberate state assault." Cameron v. 
Johnson, supra, 390 U. S. at 192. Indeed, plaintiffs have met:

"the heavy burden to show that the State, 
in prosecuting them, is not engaged in 
the use of its police power for legitimate 
ends, but is deliberately invoking it to 
harass or suppress First Amendment rights."
Ibid.

We submit, therefore, that this record amply warrants, if not 
requires, the exercise of this Court's federal equitable jurisdiction 
to enjoin defendants from prosecuting plaintiffs for violation of the 
Mobile ordinances.

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28 U.S.C. § 2283 is no bar to the granting of this relief.
The effect of the anti-injunction statute has been conclusively 
settled in this circuit. In Machesky v. Bizzell, 414 F.2d 283 (5th 
Cir. 1969), rehearing denied, . 414, F.2d 291, this Court held that:

"where important public rights to full dis­
semination of expression on public issues 
are abridged by state court proceedings, 
the principles of comity embodied in § 2283 
must yield, and that the district court is 
empowered to enjoin the state court pro­
ceedings to the extent that they violate 
these First Amendment rights" 414 F.2d at 
291.

This is true whether the state court proceedings are civil, as in 
Machesky, or pending criminal prosecutions as in Sheridan v. Garrison, 
415 F.2d 699 (5th Cir. 1960), rehearing denied. In Sheridan, this 
Court said that:

" § 2283 cannot be considered a bar whenever 
injunctive relief is the only way to avoid 
'grave and irreparable injury,' whatever 
the form of the state proceeding that 
threatens the injury. Dombrowski indicates 
that a severe chilling effect on the exer­
cise of first amendment freedoms constitu­
tes sufficient irreparable injury, in and 
of itself, to supersede comity," 415 F.2d 
at 705.

Federal courts, therefore, must act to prevent such injury re­
gardless of whether it results from the application of an unconstitu­
tionally overbroad statute, Dombrowski v. Pfister, supra; Machesky v.

5 1 /

51/ 28 U.S.C. § 2283 (1958 ed.) provides that:
"A court of the United States may not grant an injunction 
to stay proceedings in a State court except as expressly 
authorized by Act of Congresss, or where necessary in 
aid of its jurisdiction, or to protect or effectuate its 
judgments."

- 5 5



Bizzell. supra: Carmichael v. Allen, 267 F.Supp. 985 (N.D. Ga. 1967) 
(three judge court); Landry v. Daley, 238 F. Supp. 189 (N.D. 111. 1968) 
or from a bad faith criminal prosecution that is used by state offi­
cials for the purpose of suppressing speech. Cameron v. Johnson, 
supra 390 U. S. at 622 (Fortas, J., dissenting); Sheridan v. Garrison, 
supra; Sobol v. Perez, 289 F. Supp. 392 (E.D. La. 1968) (three judge 
court); Landry v. Daley, 288 F. Supp. 200 (N.D. 111. 1968).

B . Plaintiffs Are Entitled to a Protective Injunction 
Restraining Defendants... From Interfering, By Arrest 
or Prosecution. With the Exercise of Their First 
Amendment Rights in the City of Mobile.

The policy of the City of Mobile of interfering with the exercise
by plaintiffs and the members of their class (particularly NOW) in the

52/
exercise of First Amendment rights does not depend upon the invoca-

53/
tion of any single statute or ordinance. As pointed out above.
Mobile has enacted a series of ordinances which are potentially ap­
plicable to almost any conceivable exercise of First Amendment rights 
in the city. An order simply restraining defendants from enforcing 
the ordinances which are specifically challenged herein leaves them 
free to resort to a variety of other ordinances, notwithstanding these
provisions are invalid for most of the same reasons considered in 

54/
Point I. Indeed, defendants have shown that they have no compunc­
tions against enforcing these other ordinances to prohibit constitu­
tionally protected activities. In '-lew of the showing made in the

52/ See Point II, above.
53/ See pp. 12-15, above.
54/ See, e.g.. Section 14-16 set out in footnote 6 above.

- 5 6 -



present case, there is no basis for indulging in the "presumption of 
legitimate law enforcement" with respect to future prosecutions. See 
Sheridan v. Garrison, supra. 415 F.2d at 710.

If plaintiffs' right of free expression is to be vouchsafed, a 
federal injunction must be granted protecting plaintiffs' federally 
guaranteed conduct itself— not merely barring a single vehicle of 
official interference with it. Because of Mobile's oppressive attack 
on protected freedoms of expression, a federal response adequate to 
insure that plaintiffs' right will be presently exercisable is compel­
led, for to secure the right to express one's views after the event 
has passed from the public scene is an empty victory which in no way 
restores to the citizen the precious right he has lost. Rather, it 
deepens his frustration of faith in the protection of orderly processes 
of law; and destruction of this faith irreparably undermines the com­
mon consent of the governed, upon which rests the stability of demo­
cratic government and the constitutional rights of all. "For speech 
concerning public affairs is more than self-expression; it is the es­
sence of self-government" Garrison v. Louisiana, 379 U. S. 69, 75-75 
(1964).

Ample authority exists for this kind of injunctive relief. Its 
issuance has been authorized by this Court and by district courts in 
this circuit. In NAACP v. Thompson, 357 F.2d 831 (5th Cir. 831), this 
Court itself ordered a district court to issue an injunction protecting 
the right of demonstrators to protest racial discrimination in public 
places in Jackson, Mississippi against interference by arrest and pros­
ecution by the city. Similarly, in Kelly v. Page. 335 F.2d 114 (5th 
Cir. 1964), this Court reversed the denial by the district court of

-57-



injunctive relief in a suit brought by protect demonstrators to enjoin
unlav/ful interference by city officials. The court said that:

"These rights to picket and to march or to 
assemble are not to be abridged by arrest 
or other interference so long as asserted 
within the limits of not unreasonably in­
terfering with the right of others to use 
the sidewalks and streets. . . [These 
rights] must be accorded where claimed, 
but in a manner that will accommodate 
rights of other citizens to the end that 
the rights of all may be preserved," 335 
F.2d at 119.

See also Williams v. Wallace, 240 F. Supp. 100 (M.B. Ala. j.965) ; 
Cunningham v. Ingraham, 12 Race Rel. L. Rep. 53 (N.D. Miss 19c6).

The only truly effective relief in this case, therefore, is r.n 
injunction barring any future official interference, in whatever form, 
with plaintiffs' constitutionally protected activities. Although the 
detailed scope of the injunction must, of necessity, be hammered out 
by the district court, it should clearly spell out the right of plain­
tiffs and the members of their class to picket, assemble, march and 
otherwise peacefully demonstrate in public places in Mobile free from 
interference and harassment by the defendants.

C . The Court Below Erred in Denying Plaintiffs 
An Evidentiary Hearing on Their Motion for 
A Preliminary Injunction.

55/
As we pointed out above, plaintiffs would be entitled to in­

junctive relief against the pending criminal prosecutions upon proof 
that they are being prosecuted "in bad faith to impose continuing 
harassment in order.to discourage [their] activities." Dombrowski v.

55/ See p.54.

- 5 8 -



Pfister. supra* 380 U. S. at 490. The court below, however, found
that the record did not support such a contention (R. 240).

We believe that this ruling was clearly erroneous and that the
evidence compels the inference of bad faith prosecutions to dis-

56/
courage plaintiffs' civil rights activities. But even if this Court 
disagrees, it should nevertheless reverse and remand for an evidentiary 
hearing on this point. Only through cross-examination of the offi­
cials of the City of Mobile can plaintiffs pierce the defendants' 
disingenuous protestations of good faith. In refusing to grant plain­
tiffs a hearing at which live testimony could be heard (R.252 j, the

57/
court denied plaintiffs this opportunity. This was error.

As Chief Judge Brown stated, concurring in Hillegas v. Sams,
349 F.2d 859, 863 (5th Cir. 1965):

"Thus we have now passed the point where 
Federal Courts can refuse to hear evidence 
in support of a factually detailed claim 
that a state criminal has been initiated 
to effectuate (a] racially motivated denial 
of constitutional rights. By civil injunction 
and removal we recognize that this much in­
terference with state criminal prosecutions 
is the price we pay under the Supremacy Clause."

See, also, Hawkins v. Board of Control of Florida, 253 F.2d 752 (5th
Cir. 1949); Hess v. Blackwell, 409 F.2d 362 (5th Cir. 1969).

56/ See, pp. 48-51, above.
57/ The court evidently believed that the facts were undisputed 

(R. 239). This was erroneous since not only were the basic 
facts concerning the causes for the arrests of the demon­
strators subject to some dispute, but the inferences to be 
drawn from these facts were very much at issue.

-59



c

The effect of the limitation of the hearing on plaintiffs' motion
for a preliminary injunction to affidavits only was tantamount to the 
denial of a hearing. Judge Rives has pointed out that"[w]ithout the 
benefit of oral testimony and cross-examination of the witnesses it is 
impossible to resolve the conflict of testimony." Cameron v. Johnson, 
244 F. Supp. 846, 856 (S.D. Miss. 1964 (dissenting opinion), rev'd 
381 U. S. 741 (1965). Yet, on the basis of a record consisting only 
of affidavits the court below resolved the disputed inferences con­
cerning the motivation behind the arrest and prosecution of plaintiffs 
in favor of the defendants.

In reviewing the granting of a preliminary injunction on the 
basis of conflicting affidavits, one court said:

"Such conflicts must be resolved by oral 
testimony since only by hearing witnesses 
and observing their demeanor on the stand 
can the trier of fact determine the ver­
acity of the allegations made by the respect­
ive parties. If witnesses are not heard 
the trial court will be left in the position 
of preferring one piece of paper to another.
The truth of the matter is that [the defendant] 
was given nc fair opportunity to present 
testimony prior to the issuance of the pre­
liminary injunction," Sims v. Greene, 161 F.
2d 87, 88 (3rd Cir. 1947).

Similary, plaintiffs here were not given a fair opportunity to 
present testimony prior to the denial of their motion for a prelim­
inary injunction. As a result they were denied the hearing to which
they were entitled pursuant to Rule 65 of the Federal Rules of Civil 

58/
Procedure. See Gremillion v. NAACP, 366 U. S. 293, 305 (1961)
5 8/ Needless to say it was error for the court below to

dismiss the complaint without giving plaintiffs any opportunity 
to present live testimony in support of their well-pleaded alle­
gations of bad faith criminal prosecutions by defendants.

- 6 0 -



(Frankfurter, J., concurring).

Conclusion
For the foregoing reasons, the judgment below should be reversed 

with directions to the district court to issue a declaratory judgment 
and injunctive relief as prayed for by plaintiffs.

. Respectfully submitted.

JACK GREENBERG 
JONATHAN SHAPIRO 
CHARLES L. BECTON

10 Columbus Circle 
New York, New York 10019

VERNON Z. CRAWFORD 
1407 Davis Avenue 
Mobile, Alabama 36603
Attorneys for A.ppellants.

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