Kuhn v. Island Creek Coal Company Petitioner's Supplemental Brief in Support of Petition for Writ of Certiorari

    No. 92-787

In  The

Supreme Court of tt)e (Bmtcfo states
October  Term , 1992

Thresa Kuhn,
Petitions?',

v.
Island Creek Coal Company,

Respondent.

On Petition for a Writ of Certiorari to 
the United States Court of Appeals 

for the Sixth Circuit

PETITIONER’S SUPPLEMENTAL BRIEF IN SUPPORT 
OF PETITION FOR WRIT OF CERTIORARI

Elaine R. Jones
* Charles Stephen Ralston 
E ric Schnapper
Marina Hsieh 
99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

Attorneys for Petitioner

* Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



1

TABLE OF CONTENTS

I. Developments in  the Ninth Circuit .........  2

II. Developments in  Other Cir c u it s ................  3

Conclusion .....................................................................  5



ii

TABLE OF AUTHORITIES

Cases: Pages:

Baynes v. A.T.&T. Technologies, 976 F.2d 1370 (11th Cir. 
1992)...................  ....................................................... 3

Davis v. City and County of San Francisco, 1992 U.S.
App. LEXIS 24836 (9th Cir. 1 9 9 2 )___ _____ _ . 2

Estate of Reynolds v. Martin, 1993 WL 27657 (9th Cir.
Feb. 9, 1 9 9 3 )............................... .......................... 2, 3

Hicks v. Brown Group, Inc., 1992 U.S.App. LEXIS 33730 
(3rd Cir., Dec. 30, 1992) .............................................3

Johnson v. Uncle Ben’s, No. 92-737 ........................ .. 2

Landgraf v. USI Film Industries, No. 92-757 .....................2

Patterson v. McLean Credit Union, 491 U.S. 164 (1989)3, 4

Rivers v. Roadway Express, No. 92-938 ........................  1, 4

Sinnovich v. Port Authority of Allegheny County, (3rd Cir. 
No. 92-3125)..........................   3

Vance v. Southern Bell Telephone and Telegraph
Company, 1993 WL 26793 (11th Cir. Feb. 5. 1993)4

Statutes:

Civil Rights Act of 1991 2-4



No. 92-787

In The

Supreme Court of tf)e Unite)) States.
O ctober Term , 1992

Thresa  Kuhn ,
Petitioner

v.

Island Creek  Coal Company,
Respondent.

On Petition for a Writ of Certiorari to 
the United States Court of Appeals 

for the Sixth Circuit

PETITIONER’S SUPPLEMENTAL BRIEF IN SUPPORT 
OF PETITION FOR WRIT OF CERTIORARI

Petitioner files this Supplemental Brief in Support of 
the Petition for a Writ of Certiorari pursuant to Rule 15.7 
of the Rules of the Court, in order to bring to the Court’s 
attention recent developments in the lower courts that have 
occurred since the filing of her Reply to the Brief in 
Opposition.

Petitioner understands that the Court will consider 
the petition in this case along with the petitions in three 
other cases, Rivers v. Roadway Express, No. 92-938, in which 
the undersigned attorneys for petitioner are also counsel,



2

Landgraf v. USI Film Industries, No. 92-757, and Johnson v. 
Uncle Ben’s, No. 92-737, at its conference on February 19, 
1993. The four cases raise, in various contexts, the question 
of the applicability of the Civil Rights Act of 1991 to cases 
pending at the time of its passage. The developments set 
out below are related to the Court’s consideration of all four 
cases.

I .

Developments in  the N inth Circuit

In the Petition for a Writ of Certiorari, petitioner 
cited the decision of the Ninth Circuit in Davis v. City and 
County o f San Francisco, 1992 U.S. App. LEXIS 24836 (9th 
Cir. 1992), as creating a clear conflict between the circuits 
on the issue of the applicability of the Civil Rights Act of 
1991 to cases pending at the time of its enactment. The 
panel decision in Davis held that the clear meaning of 
statute required that it be so applied. In her Reply to the 
Brief in Opposition petitioner noted that the Ninth Circuit 
had requested that the parties express their views by 
December 31,1992, as to whether that court should consider 
en banc the issue of the applicability of the Civil Rights Act 
of 1991.

Subsequently, the parties in Davis agreed to settle the 
case, thus mooting the appeal. The Ninth Circuit, in 
agreeing to dismiss the appeal, vacated those parts of its 
decision that related to the issue of applicability of the Civil 
Rights Act of 1991.

However, on February 9, 1993, another panel of the 
Ninth Circuit, in Estate o f Reynolds v. Martin, 1993 WL 
27657 (9th Cir. Feb. 9, 1993), held, in agreement with the 
original Davis panel, that the plain meaning of the statute’s 
language requires the conclusion that the Act does apply to 
pending cases. Therefore, for the reasons discussed in the



3

petition in this case at pp. 14-15, there continues to be a 
conflict between the circuits on the issue, as the Ninth 
Circuit explicitly noted in Estate o f Reynolds, supra, p. 5-7.

II.

D evelopments in  Other  Circuits

There have been developments in a number of the 
cases cited in the petition that illustrate the confusion that 
exists in the courts below.

1. The Third Circuit.

After hearing oral argument by a panel, the Third 
Circuit has ordered that Sinnovich v. Port Authority o f 
Allegheny County, No. 92-3125, (cited at page 15 of the 
petition) be heard en banc in the spring.

2. The Eighth Circuit.

On December 30, 1992, the Eighth Circuit handed 
down its decision en banc in Hicks v. Brown Group, Inc., 
1992 U.S.App. LEXIS 33730 (cited at page 14 of the 
petition), holding that the Civil Rights Act of 1991 did not 
apply to pending cases.

3. The Eleventh Circuit.

On February 5, 1993, the Eleventh Circuit handed 
down its decision in Vance v. Southern Bell Telephone and 
Telegraph Company, 1993 WL 26793 (11th Cir. Feb. 5.1993). 
holding that because of the earlier decision of the circuit in 
Baynes v. A.T.&T. Technologies, 976 F.2d 1370 (11th Cir. 
1992)(petition for rehearing en banc pending)1 it was 
required to hold that the Act did not apply to a pending 
case. Judge Fay concurred, protesting the injustice of having 
to hold that Patterson v. McLean Credit Union, 491 U.S. 164

lBaynes is cited at p. 16 of the petition in this case.



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(1989) applied retroactively to eliminate Ms. Vance’s claims 
of racial harassment, while the Civil Rights Act of 1991, 
passed to overrule Patterson, could not be applied to her 
case to preserve those claims. 1993 WL 26793, pp. 3-4. This 
precise issue is raised in Rivers v. Roadway Express, Inc., No. 
92-938. See also, the petition in the present case at p. 19, n. 
18.

In Vance, however, the Eleventh Circuit went on to 
hold that the rule in that court is that section 101 of the 
Civil Rights Act of 1991 "has no retroactive application in 
cases in which entry o f judgment predates the effective date 
of the Act." 1993 WL 26793, p. 3 (emphasis added).

Thus, the circuits are currently taking four various 
and conflicting views with regard to the question of the 
applicability of the Act to pending cases:

(1) The Ninth Circuit holds that the clear language 
of the statute requires that it be applied to cases pending on 
the date of its enactment. (2) As set out in the petition 
herein at pp. 13-14, the Sixth, Seventh, and Eighth Circuits 
hold that the Act is not retroactive in any respect. (3) Also 
as set out in the petition, at p. 15-16, the District of 
Columbia and Fifth Circuits have held that procedural 
changes in the Act would not apply to cases that had been 
tried before the effective date of the Act. (4) The Eleventh 
Circuit has held that the Act does not apply to cases in 
which judgment has been entered before the effective date.



5

C o n c l u s io n

In light of the divergent views taken by the circuits 
on the important question presented by this case, the 
petition for a writ of certiorari should be granted.

Elaine R. Jones 
* Charles Stephen Ralston 

Eric Schnapper 
Marina Hsieh

99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

Attorneys for Petitioner

^Counsel of Record