Harvis v. Roadway Express, Inc. Reply in Support of Plaintiffs' Motion for Leave to File Supplemental Brief

    UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

No. 91-3348

JAMES T. HARVIS, JR.,

Plaintiff,

MAURICE RIVERS and ROBERT C. DAVISON

Plaintiffs-Appellants, 
v.

ROADWAY EXPRESS, INC.

Defendant-Appellee.

On Appeal from the United States District Court 
For the Northern District of Ohio

REPLY IN SUPPORT OF PLAINTIFFS' MOTION FOR 
LEAVE TO FILE SUPPLEMENTAL BRIEF

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON 
ERIC SCHNAPPER 
CORNELIA T.L. PILLARD 
(Counsel of Record)
NAACP Legal Defense and 

Educational Fund, Inc. 
99 Hudson Street 
16th Floor 
New York, NY 10013 
(212) 219-1900

ELLIS BOAL
925 Ford Building 
Detroit, MI 48226



INTRODUCTION

Plaintiffs Maurice Rivers and Robert C. Davison submit this 

brief in response to Roadway Express's opposition to plaintiffs' 

motion for leave to file a supplemental brief. Plaintiffs filed 

their supplemental brief in a timely and procedurally 

appropriate, routine manner, and there is no basis for 

defendant's contentions to the contrary. Moreover, most of 

defendant's brief asking the Court to deny plaintiffs leave to 

file our brief is in fact directed to the merits of whether the 

1991 Civil Rights Act applies, see Points I.c., I.d., II, III. 

These arguments are not relevant to the purely procedural issue 

whether the Court should grant plaintiffs' motion for leave to 

file, and they lack merit in any event.

Roadway has sought leave, if the Court accepts the brief 

that plaintiffs have tendered, to file a brief responding on the 

merits to Plaintiffs' Supplemental Brief. Plaintiffs have 

consented to the filing of such a response. Plaintiffs urge that 

Roadway file its response promptly so that the issues may be 

fully briefed prior to the scheduled May 4, 1992 oral argument.

I. PLAINTIFFS-APPELLANTS PROPERLY FILED A TIMELY
SUPPLEMENTAL BRIEF

Plaintiffs' supplemental brief was filed on March 20, 1992, 

well before the scheduled May 4 argument date. This timely 

filing afforded defendant adequate time to prepare a responsive 

brief, and enables the Court in advance of the oral argument to 

consider the parties' views on the impact of the 1991 Civil

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Rights Act.

It would have made little sense to file the brief as soon as 

the 1991 Act was signed, as Roadway suggests, because the law 

regarding the 1991 Act's applicability has been developing so 

quickly that yet another brief would have been needed by the time 

argument was scheduled. In the months since the Act was signed 

by the President in November 1991, decisions regarding its 

applicability to pre-existing claims have been rendered in the 

lower courts almost every day. A panel of this Court in Vogel v. 

Cincinnati. 1992 U.S. App. LEXIS 4226 (March 13, 1992), discussed 

the Act within the week before plaintiffs filed their 

supplemental brief. Plaintiffs have discussed Vogel and several 

recent lower court decisions in their supplemental brief, and 

could not have done so had they filed the brief immediately upon 
passage of the Act.

It would have been equally impractical not to have sought to 

file a supplemental brief prior to argument, and instead to wait 

until oral argument to raise the Civil Rights Act's 

applicability. Post-argument briefing —  although certainly 

appropriate in many cases —  deprives the Court of a useful 

opportunity to question counsel at oral argument on the basis of 

their briefs. Thus, in order to ensure orderly presentation of 

this important issue to the Court, plaintiffs filed their 

supplemental brief within two weeks of their receipt of the 

notice of oral argument, leaving more than six weeks for 

defendants' responsive brief and any reply that might be

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appropriate.

The decision of the Seventh Circuit in Partee v. Metro. 

School District, 954 F.2d 454 (7th Cir. 1992), does not support 

Roadway's contention that plaintiffs have raised the 

applicability of the Civil Rights Act too late. The appellant in 

that case "did not argue in her brief or at oral argument that 

the Act applies retroactively to her case." Id. at 455, n.l. 

Plaintiffs here, in contrast, briefed the issue prior to oral 

argument, and will continue to pursue it at argument.

Defendant Roadway complains that there is no "procedural 

support" for the filing of supplemental briefs. This Court 

unquestionably has the authority to accept supplemental briefing. 

The Court in fact frequently does consider issues raised in 

supplemental briefs filed prior to, and even after, oral 

argument. As an illustration, a Lexis search for cases in this 

Court since 1980 in which supplemental briefing was referred to 

produced well over a hundred citations. See. e.q.. United States

V-:_Edqecomb. 910 F.2d 1309, 1311 n.l (referring to supplemental

brief filed by appellant); Griffith v. Director. OWCP, United 

States Dept, of Labor. 868 F.2d 847, 850 (6th Cir. 1989) 

(referring to supplemental brief filed by appellee).

Supplemental briefing is especially appropriate where, as here, 

there has been a change in the law governing the issues on 

appeal. Cf., Gavin v. Wells. 914 F.2d 97, 98 (6th Cir. 1990) 

(referring to supplemental briefing in considering applicability 

of new Supreme Court decision); SSD Distribution System v.

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General Motors Corn.. 883 F.2d 41, 42 (6th Cir. 1989) (referring 

to supplemental briefing filed after Court received answer to 

question certified to the Ohio Supreme Court).

II. DEFENDANT ROADWAY'S ARGUMENTS ON THE MERITS ARE NOT 
RELEVANT TO WHETHER THE COURT SHOULD GRANT LEAVE TO 
FILE SUPPLEMENTAL BRIEFS, AND IN ANY EVENT ARE 
UNPERSUASIVE

Roadway includes arguments in its memorandum which do not

relate to whether the Court should accept supplemental briefs,

but which address the substance of plaintiffs' supplemental

brief. Roadway argues that the Civil Rights Act is not

retroactive, Memorandum of Defendant-Appellee Opposing

Appellants' Motion for Leave to File Supplemental Brief, Points

I.C.,I.D., and that even if it were, this Court should not decide

the issue but should first remand the case to the district court.

Id. Point III. Roadway further contends that the plaintiffs'

opposition to retroactive application of the Patterson decision

is raised too late and is therefore waived. Point II. None of

these arguments is relevant to the procedural issue Roadway

purports to address —  the propriety of supplemental briefing —

and they are groundless in any event.

A. The Civil Rights Act of 1991 Applies to
Plaintiffs' Pending Claims Under 42 U.S.C.
§ 1981

Roadway contends that the Civil Rights Act is not 

"retroactive" and is categorically inapplicable to pending 

claims. As plaintiffs have argued in their opening brief, the 

plain language of the 1991 Act makes clear that the Act applies

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to at least some claims pre-dating the Act. Construing the Act, 

as Roadway urges, as inapplicable to pre-Act claims renders 

§§ 402(b) and 109(c) of the Act meaningless, contrary to 

established rules of statutory construction. Moreover, the Act 

simply restores § 1981 remedies that were available to plaintiffs 

when Roadway engaged in the challenged discriminatory 

retaliation. This case thus presents no question of unfair 

surprise, or application to defendants of new liability 

unforeseen when the challenged conduct took place. Under 

established legal standards governing applicability of new 

legislation to pending claims, see Bradley v. Richmond School 

Board, 416 U.S. 696, 711 (1974), the 1991 Act applies here.

The decision upon which Roadway principally relies in 

contending that the 1991 Act is inapplicable, Vogel v,

Cincinnati. discusses the 1991 Act only in dictum, and in a 

context which is in any event clearly distinguishable from this 

case. See Supplemental Brief of Plaintiff-Appellant, at 1, 21- 

23. Moreover, precisely because the Vogel panel's consideration 

of the applicability of the 1991 Act was unnecessary to the 

decision in that case, that decision is currently the subject of 

a March 26, 1992 amicus motion by the NAACP Legal Defense and 

Educational Fund, Inc. and the Lawyers' Committee For Civil 

Rights Under Law urging modification of the opinion.

Defendant Roadway also relies on Sitgraves v. Allied Signal 

Inc_i., 953 F.2d 570 (9th Cir. 1992), pet, for reh'g pending, in 

which the Ninth Circuit applied Patterson after the effective

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date of the 1991 Civil Rights Act in support of its contention 

that the 1991 Act is inapplicable. The court in the Sitgraves 

opinion, however, did not even purport to address the potential 

applicability of 1991 Civil Rights Act. Neither did Sitgraves 

consider the separate issue whether Patterson itself is now non­

retroactive in pending cases. Most importantly, however, the 

1991 Civil Rights Act became law after the Sitgraves appeal was 

argued, and the plaintiff on January 30 filed a petition for 

rehearing on the ground that the 1991 Act applies. The Ninth 

Circuit directed the defendants to respond to plaintiffs' 

petition. Thus, Sitgraves provides no support for defendants' 

position, and in fact suggests that supplemental briefing and 

consideration of the 1991 Act is entirely appropriate.

B. The Applicability of the Civil Rights Act of 
1991 is a Purely Legal Issue Which This Court 
Has the Authority to Decide

Defendant contends in the alternative that this Court should 

remand the case to the district court for consideration whether 

the 1991 Act applies. Remand for that purpose is inappropriate, 

however, because there are no issues of fact relating to the 

Act's applicability which would require consideration by the 

district court. Cf. Easley v. University of Michigan Bd. of 

Regents. 853 F.2d 1351, 1358 (6th Cir. 1988) (remanding for 

evidentiary hearing limited to factual issues necessary to 

resolution of issue on appeal). The applicability of the Act 

here depends on interpretation of the 1991 Act in light of 

general legal principles, including canons of construction and

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the presumption in favor of application of current law. Because

"statutory interpretation is a question of law which this Court

reviews de novo," In re Vause. 886 F.2d 794, 798 (6th Cir. 1989),

there is no need for the district court to consider the issue

first. The Supreme Court in Gersman v. Group Health Ass'n..___

U.S. ___, 1991 U.S. LEXIS 655, No. 91-724 (Jan. 27, 1992) and

Holland v. First America Banks. ___ U.S. ___, 1991 U.S. LEXIS

1266 (February 24, 1992), could have remanded those cases to the

district courts, and its choice not to do so shows that the

Courts of Appeals are the approriate fora for initial

determination of the Act's applicablity. Remand for the district

court to decide whether the 1991 Act applies would simply delay

this Court's consideration of the issue.

C. Retroactivity of Patterson v. McLean Credit 
Union Was Decided By the District Court and 
is Thus Squarely Presented for Review

The issue whether the Supreme Court's decision in Patterson

applies retroactively here is preserved for appellate review.

The issue was raised below, and the district court expressly

determined that Patterson applied retroactively to Rivers' and
Davison's claims:

It should be noted that the Court concludes, pursuant 
to the Chevron analysis, that Patterson should be 
applied retroactively to the § 1981 claims of Rivers 
and Davison since they have not yet been tried to a 
jury.

Jan. 19, 1990 Memorandum and Order, at 3 (R. 266; JA 26). The 

fact that the district court decided the issue is alone 

sufficient to preserve it. "It is not unfair to a trial court

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for an appellate court to decide a question that the trial court 

actually reached in its opinion...." Struempler v. Bowen. 822 

F .2d 40, 42 (8th Cir. 1987). See. In re E.R.Feqert. Inc.. 887 

F.2d 955, 957 (9th Cir. 1989).1 Thus, the issue was not waived 
and is properly before this Court.

CONCLUSION

For the foregoing reasons, the motion of plaintiffs- 

appellants for leave to file the tendered Supplemental Brief 
should be granted.

Respectfully submitted,

CHARLES STEPHEN RALSTON 
ERIC SCHNAPPER 
CORNELIA T.L. PILLARD 

NAACP Legal Defense and 
Educational Fund, Inc. 

99 Hudson Street 
16th Floor 
New York, NY 10013

ELLIS BOAL
925 Ford Building 
Detroit, MI 48226

April 2, 1992

Contrary to Roadway's contention, plaintiffs have never 
conceded the applicability of Patterson here; rather, defendant 
improperly characterizes plaintiffs' argument that their § 1981 
claims survive Patterson as a concession that Patterson must 
apply.

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CERTIFICATE OF SERVICE

This will certify that I have this date served counsel

for defendant in this action with true and correct copies of the

foregoing Reply in Support of Motion for Leave to File

Supplemental Brief by placing said copies in the U.S. Mail at New

York, New York, First-Class postage thereon fully prepaid

addressed as follows:

John Landwehr 
Thomas Gibney
800 United Savings Building 
Toledo, Ohio 43604-1141

Executed this day of April, 1992 at New York, New

:or Plaintiffs-Appellees

York.