League of United Latin American Citizens (LULAC), Council #4434 v. Mattox Supplemental Brief on Rehearing En Banc of Plaintiff-Intervenor-Appellees

    I n  t h e

Qlmtrt nf tii?
O ctober T e e m , 1975 
Nos. 75-1475, 75-1478

U n it e d  S tates S t e e l  C orporation ,
Petitioner,

- V -

JoH N  S. F ord, et al.

U n it e d  S teelw o rk ers  of A m erica  AFL-CIO-CIC, and i ts  
L ocal U n io n s  1013, 1131, 1489, 1700, 1733, 2122, 2210, 
2405, 2421, 2927, 3662 and 4203,

Petitioners,

J o h n  S. F ord, et al.

ON pe t it io n s  fob  w r its  of certiorari to t h e  u n it e d  states 
court of appea ls  for  t h e  f if t h  c ircu it

BRIEF IN OPPOSITION TO CERTIORARI

J ack  Greenberg  
J ames M. N abbit , III 
E ric  S c h n a ppb r  
B arry L. G oldstein  
■Stanley  E n g elstein  

10 Columbus Circle 
New York, New York 10019

O scar A dams 
J am es K . B aker  
U. W. Clem o n

Suite 1600, The 2121 Building 
2121 Eighth Avenue North 
Birmingham, Alabama 35203

Attorneys for John 8. Ford, et al.



TABLE OF CONTENTS

PAGE

Statem ent ......... ...................-...............................................  1

Eeasons for Denying the W rit ......................................... 2

1. The Backpay Ruling ............................................. 3

2. Standing of the Named Plaintiff' ..... ................-  4

3. Modification of the Class ..... -............. -......... - ...... 5

4. The Class Action Tolling Rule ----- ---- -.............  6

CoNCLUsioisr ....................-.........—..................................... ...... 8

Appendix  .........................- .................... ........... .....................  l a



In t h e

(Emirt of tl|i? Initrib ^tatps
O ctober T e r m , 1975 
Nos. 75-1475, 75-1478

U n it e d  S tates S te e l  Corporation ,

J o h n  S . F ord, et al.

Petitioner,

U n ited  S teelw o rk ers  oe A m erica  AFL-CIO-CIC, and its 
L ocal U n io n s  1013, 1131, 1489, 1700, 1733, 2122, 2210, 
2405, 2421, 2927, 3662 and 4203,

Petitioners,
-- Y.---

J o h n  S . F ord, et al.

ON pe t it io n s  for  w r its  of certiorari to t h e  u n it e d  states 
COURT of appeals  FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION TO CERTIORARI

Statement

Tlie district court had found that the defendants Steel­
workers and United States Steel Corporation, petitioners 
here, had engaged in patterns and practices of racial dis­
crimination in employment which required injunctive re­
lief designed to remedy the effects of that discrimination 
with respect to the seniority and transfer system, train­
ing and apprenticeship programs, and selection for plant



protection, clerical and supervisory jobs. (Pet.A18-A41^) 
Aeitber the Steelworkers nor U.S. Steel challenged the 
district court’s findings of widespread racial discrimina­
tion. (See Pet.A77) Eather the Steelworkers and U.S. 
Steel have petitioned for review of the Fifth Circuit’s 
holding that backpay should be awarded to compensate 
those black workers who suffered lost earnings as a re­
sult of the discriminatory practices. Additionally, the 
Company further petitioned for review of the district 
court’s enlargement of the class represented by John S. 
Ford et al. to include all the black workers at Fairfield 
Works who were not otherwise being represented in a 
private class action.

The district court’s enlargement of the Ford class was 
not done contemporaneously with the entry of judgment 
as U.S. Steel states in its petition. (Pet. at 10). The class 
was re-defined in the district court’s decree entered on 
May 2, 1973. (Pet.A38) Judgment was not entered by the 
district court until August 10, 1973. United States v. 
United States Steel Corporation, 6 EPD 8790 (N.D. Ala. 
1973). Since neither petitioner included the Judgment of 
the district court in the appendix to their petitions, the 
respondents have attached it as an appendix to this brief. 
(la-4a)

Reasons for Denying the Writ

The six questions presented by U.S. Steel and the three- 
part question presented by the Steelworkers challenge two 
aspects of the Fifth Circuit’s decision: the reversal of the 
district court’s denial of backpay to 2,700 black steelwork­
ers who had their employment opportunities restricted by

1 Citations in this form are to the Appendix to the petition for 
certiorari filed by United States Steel Corporation in No. 75-1475.



tlie discriminatory practices of the petitioners and the af­
firmance of the legality of the district court’s re-definition 
of the Ford class.^

1. The Backpay Ruling

The Union in its three-part question and the Company 
in its last three questions raise defenses of lack of had 
faith, good faith efforts to comply with the law, the un­
settled state of the law, the absence of unjust enrichment 
to the defendants and the breadth of other affirmative 
relief.® No question of law is being raised by these peti­
tions that was not settled by this Court in Albemarle Paper 
Co. V. Moody, 422 U.S. 405 (1975). In essence, petitioners 
here seek a rehearing of the decision in Albemarle.

Additionally, petitioners argue that the difficulties of 
ascertainment of the backpay remedy for individual mem­
bers of the class was a lawful basis for the district court’s

 ̂The Fifth Circuit however vacated the lower court’s definition 
of the class and remanded to the lower court to take evidence as 
to the class “propriety”, “scope”, “size” and “membership”. The 
Fifth Circuit further stated that “the question on remand will be 
comprehensive and multifaceted” and suggested that the district 
court enter findings of fact in support of its determination. (A 
83-84).

® The Union in attempting to argue that the lower courts found 
discriminatory steel seniority systems to be lawful under Title VII 
misstated the history of that litigation. The Union relies on a 
pre-Title VII decision, Whitfield v. United Steelworkers of Amer­
ica, but omits its explicit reversal in 1970, Taylor v. Armco Steel 
Corporation, 429 P.2d 498 (5th Cir. 1970). Moreover, at the time 
when the appeal was argued before the Fifth Circuit in United 
States V. H.K. Porter Company, Inc. in April, 1970 “the Court, 
from the bench, indicated that major changes in the seniority 
and other systems at the plant were required in order to achieve 
compliance with Title VII of the Civil Eights Act of 1964 . . . ”, 
491 P.2d 1105 (1974). Petitioner, in effect, seeks exemption from 
liability for backpay under Title VII on the ground that it was 
in good faith compliance with pre-Title VII law!



use of its discretion in denying backpay relief for the class. 
This is contrary to the rule of this Court in Albemarle 
that “given a finding of unlawful discrimination, backpay 
should be denied only for reasons, which, if applied gen­
erally, would not frustrate the central statutory purposes 
of eradicating discrimination throughout the economy and 
making persons whole for injuries suffered through past 
discrimination.”  ̂ (422 U.S. at 421)

2. Standing of the Named Plaintiff

The Company’s challenge to the standing of the named 
plaintiff on appeal conflicts with settled law that the cause 
of action in a class action survives the mootness of the 
claim of the named plaintiff when the issues as to the class 
is certain to come before the courts, Sosna v. Iowa, 419 
IJ.S. 393 (1975). The instant case satisfies the three cri­
teria for the survival of the class action after the satisfac­
tion of the named plaintiff’s claim which this Court set 
down in Sosna (at 402). It is undisputed that John S. 
Ford had standing to sue as the named plaintiff in the 
original suit; that the class was certified by the district 
court and that the controversy^ is still alive.

On petitioner’s theory it would be possible to scuttle a 
class action by simply settling the claim of the named 
plaintiff. Denying the right to appeal to the class because 
the named plaintiff has been paid would generate precisely

* Petitioner’s seek relief from their obligation to make the in­
jured members of the class whole on the ground that a great many 
were injured in the context of a complex plant seniority structure 
thereby creating difficulties of ascertainment of individual reme­
dies. If allowed, this would lead to the anomaly that the only 
safe discrimination to practice is mass discrimination. A’s Judge 
Thornberry put it, “ . . . the fact that a defendant has man­
aged to discriminate against many people instead of a few is no 
ticket to freedom from liability to those who suffered less than 
the most obvious victims.” (A.90)



the evil of the multiplicity of law suits that class actions 
were designed to prevent.

3. Modification of the Class

Petitioner argues that since the class was modified 
“after trial at judgment” (IJ.S. Steel Pet. at 2, 10) it was 
in violation of Rule 23(c) (1) which permits alteration or 
amendment of the class “before the decision on the 
merits”.

a) Petitioner’s question is premature. The proper 
class has yet to be defined. The Fifth Circuit va­
cated the lower court’s definition of the class and 
remanded for a hearing on this “comprehensive and 
multifaceted” question to determine the “jiropri- 
ety”, “size”, “scope” and “membership” of the 
class. (A 83-84)

b) Petitioner is in error on the facts, in any case. The 
decree modifying the class was entered on May 2, 
1973. The Judgment of the court was rendered on 
August 10, 1973. The class was therefore altered 
“before the decision on the merits” in compliance 
with Rule 23(c) (1).“ See supra at n. 2.

c) Finally petitioner’s reliance on Rule 23(c) (1) is 
misplaced. In a (b) (2) class action, such as the 
case at bar, the relevant rule on the timing of the

5 Even if the class had been amended at the time of judgment, 
as petitioner incorrectly asserts, there would still have been com­
pliance with Rule 23(c)(1) as Seventh Circuit explained in 
Jimenez v. Weinberger, 523 P.2d 689 (1975): . the ex­
plicit permission to alter or amend a certification order before 
decision on the merits plainly implies disapproval of such alter­
ation or amendment thereafter. On the other hand, that degree 
of flexibility permitted before the merits are decided also indi­
cate that in some cases the final certification need not be made 
until the moment the merits are decided.” (at 697)



determination of the scope of the class is Rule 
23(c)(3). That rule states; “the judgment in an 
action maintained as a class action under subdivi­
sion (b)(1) or (b)(2), whether or not favorable to 
the class, shall include and describe those whom the 
court finds to be members of the class.” (emphasis 
added) When Judge Pointer in his Decree of May 
2, 1973 described those whom he found to be mem­
bers of the class, he was in strict compliance with 
the Federal Rules of Civil Procedure.''

d) Petitioner’s additional complaint of lack of notice 
and hearing as violative of its right to due process 
is clearly frivolous. There was no element of sur­
prise or prejudice to the petitioner when the class 
represented by Ford, et al. was expanded to in­
clude individuals who were represented by the 
United States in a “pattern and practice” suit con­
solidated for trial with Ford, and vdiose claims had 
been thoroughly litigated at a lengthy trial at which 
petitioner had full opxoortunity to present evidence.'' 
(A 42-43)

4. The Class Action Tolling Rule

Petitioner cites the rule in American Pipe and Construc­
tion Co. V. Utah, 414 U.S. 538 (1974) as authority that the 
statute of limitations had run for the 2,700 individuals 
thereby precluding their entry into the class.

® In Jimenez, ibid., the Seventh Circuit construed 23(c)(3) as 
follows: “the language of subparagraph (c)(3) would seem to 
permit the entry of a 'single order determining both the merits 
and the identity of the class. Certainly there is nothing in the 
rule expressly depriving the district court of power to enter such 
an order.” (523 P.2d at 698)

The petitioner, United States Steel Corporation, put on evi­
dence for approximately thirty-five days of trial.



In American Pipe, a class certification was denied and 
tlie suit went forward as a private action. The issue before 
this Court was whether the statute of limitations had run 
for those individuals, who would have been members of 
the class had it been certified, with respect to their right to 
intervene in the private action. The cpiestion of the rights 
of interveners to get into court where a class action has 
been denied is irrelevant to the issue of the appropriate 
inclusion in an aleady certified class of new members whose 
claims had already been litigated at a consolidated trial.

Petitioner strives for relevance by quoting American 
Pipe as follows; “We are convinced that the rule most 
consistent with federal class action procedures must be 
that commencement of a class action susjjends the statute 
of limitation as to all asserted members of the class . . .” 
(Pg. 11 of petition: emphasis by petitioner). Therefore 
petitioner suggests that since the added members of the 
new Ford class had not been the “asserted” members of 
the old Ford class, then the statute of limitations had run 
for them. But petitioner’s quotation omits the second part 
of the sentence which reads, “who would have been parties 
had the suit been permitted to continue as a class action.” 
(414 U.S. 538, 554). Thus, even if the rule in American 
Pipe is relevant, this omitted part of the sentence suggests 
that the statute of limitations ivould have been tolled for 
the 2,700 blacks who were not in the class originally be­
cause they clearly “would have been members of the class 
had the suit been permitted to continue as a class action.” 
In the instant case a class action was permitted and the 
new members were in fact included in the class prior to 
the entry of judgment. As this Court stated in American 
Pipe, “Thus, the commencement of the [class] action sat­
isfied the purpose of the limitation provision as to all 
those who might subsequently participate in the suit as



well as for the named plaintiffs.” (at 551). Not only were 
the 2,700 blacks “those who might subsequently participate 
in the suit”, they were in fact those who had already par­
ticipated in the suit. A fortiori the statute of limitations 
tolled for them. The court below properly, indeed neces­
sarily, included them in the class to which the judgment 
would apply to avoid the possibility of 2,700 private law­
suits.

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the petitions for certiorari should be denied.

J ack  G-beenbeeg  
J am es M. N a b eit , III 
E bic  S c h n a p p e e  
B aeey  L. G oldstein  
S ta n ley  E n g e l st e in  

10 Columbus Circle 
New York, New York 10019

OscAE A dams 
J am es K. B a k ee  
TJ. W . Clem o n

Suite 1600, The 2121 Building 
2121 Eighth Avenue North 
Birmingham, Alabama 35203

Attorneys for John 8. Ford, et al.



la

APPENDIX

U n it e d  S tates D istrict  C ourt 
N o r th er n  D istr ic t  of A labama 

Southern Division

Civil Action No. 70-906 
U n it e d  S tates of A m erica ,

Civil Action No. 66-343 
L u t h e r  M cK in s t r y , et al.,

Civil Action 66-423 
W illia m  H ardy, et al.,

Civil Action No. 66-625 
J o h n  S . F ord, et al.,

Civil Action No. 67-121 
E lder  B r o w n , et al.,

Civil Action No. 68-204 
E lbx  P .  L ove, et al.,

Civil Action No. 69-165 
J am es D onald , et al.,

— v̂s.—

Plaintiff;

Plaintiffs;

Plaintiffs;

Plaintiffs;

Plaintiffs;

Plaintiffs;

Plaintiffs;

U n ited  S tates S t e e l  C orporation , et al..
Defendants.



2a

Appendix

m ent

It is Oedeked , A djudged  and D ecreed  as follows:

1. McKinstry v. TJ. 8. Steel Corp., CA 66-343.—
(a) Bach pay. The defendants United States Steel 

Corporation and Local Union 1013, United Steel­
workers of America, APL-CIO-CLC, shall each pay to 
the eight class members named on the attachment 
hereto one-half of the amount shown thereon opposite 
such member’s name and badge number. Payments 
shall be subject to reduction for employment taxes and 
withholding as may be required by applicable law.

(b) Attorney’s fees. Said defendants shall each pay 
to U. W. demon, as attorney’s fees for the plaintiffs 
in such case, under 42 U.S.C.A. § 2000e-5(j), the sum 
of $29,250 (of which $4,250 represents reimbursement 
of expenses).

2. Hardy v. U. 8. Steel Corp., CA 66-423.—
(a) Bach pay. The defendants United States Steel 

Corporation and Local Union 1489, United Steel­
workers of America, AFL-CIO-CLC, shall each pay 
to the twenty class members named on the attachment 
hereto one-half of the amount shown thereon opposite 
such member’s name and badge number. Payments 
shall be subject to reduction for tax veithliolding and 
employment taxes as may be required by aioplicable 
laws.

(b) Attorney’s fees. Said defendants shall each pay 
to Oscar W. Adams, Jr., as attorney’s fees for the 
plaintiffs in such case, under 42 U.S.C.A. §2000e-5(j),



3a

Appendix

the sum of $26,500 (of whidi $4,000 represents reim­
bursement of expenses).

3. Ford V. U. 8. Steel Corp., CA 66-625.—
(a) Back pay. The defendants United States Steel 

Corporation and Local Union 1733, United Steel­
workers of America, AFL-CIO-CLG, shall each pay to 
the thirty-three class members named on the attach­
ment hereto one-half of the amount shown thereon 
opposite such member’s name and badge number. Pay­
ments shall be subject to reduction for tax withholding 
and employment taxes as may be required by ap­
plicable laws.

(b) Attorney’s fees. Said defendants shall each pay 
to James K. Baker, as attorney’s fees for the plaintiffs 
in such case, under 42 U.S.C.A. 2000e-5(j), the sum of 
$29,250 (of which $4,250 represents reimbursement of 
expenses).

4. Brown v. U. 8. Steel Corp., CA 67-121.—The defen­
dants United States Steel Corporation and Local Union 
1733, United Steelworkers of America, AFL-CIO-CLC, 
shall each pay to J. Kichmond Pearson, as Attorney’s fees 
for the plaintiffs in such case, under 42 U.S.C.A. § 2000e- 
5(j), the sum of $4,500.00.

5. Love V . U. 8. Steel Corp., CA 68-204.—The defen­
dants United States Steel Corporation and Local Union 
1489, United Steelworkers of America, AFL-CIO-CLC, 
shall each pay to J. Richmond Pearson, as attorney’s fees 
for the plaintiffs in such case, under 42 U.S.C.A. § 2000e- 
5(j), the sum of $4,500.00.

6. Donald v. II. 8. Steel Corp., CA 69-165.—The defen­
dants United States Steel Corporation and Local Union



4a

Appendix

1013, United Steelworkers of America, AFL-CIO-CLC, 
shall each pay to Demetrius C. Newton, as attorney’s fees 
for the plaintiffs in such case under 42 U.S.C.A. § 2000e- 
5(j), the sum of $8,500.00.

7. Denial of other claims.—All claims for hack pay and 
attorney’s fees are, except as provided in paragraphs 1 
through 6 hereof, denied.

8. Line of Progression Modification.—Attached hereto is 
a Line of Progression for Unit 1201, No. 4 Galvanizing 
Line, Fairfield Steel Plant, which is hereby substituted for 
the line of progression chart for such unit as contained in 
the decree dated May 2, 1973. Such change is effective as 
of August 1, 1973, notwithstanding the 60-day notice provi­
sion contained in paragraph 4 of the May 2, 1973, decree.

9. Order under Rule 54(h).—In paragraph 15 of the 
May 2, 1973, order the court severed those claims in civil 
action 70-906 relating to testing procedures, and such 
claims have not been determined by this court but remain 
for further consideration. As to all other claims in the 
cases appearing th^ style of this judgment, the court now 
under Eule 54(b) expressly determines that there is no 
just reason for delay and expressly directs that judgment, 
as contained in the decree of May 2, 1973 and this judg­
ment, be entered as a final judgment as against all parties. 
Final judgments have previously, on May 2, 1973, been 
entered in CA 69-68 and CA 71-131, which had been con­
solidated for trial with the cases appearing in the style 
of this judgment.

Done this the 10th day of August, 1973.
/s /  S am  C. P o in t e r , J r .

United States District Judge



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