Lutheran Church-Missouri Synod v. FCC and the Missouri State Conference of the NAACP Brief for the United States as Amicus Curiae

    IN THE UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

CASE NO. 75-3425______________________ __

EDDIE STALLWORTH, et al.,
Plaintiffs,

J. W. PALMER, et al,
Intervenors-Appellants,

vs .
MONSANTO COMPANY,

Defendant

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF FLORIDA

BRIEF OF APPELLANTS-INTERVENORS

D. L. MIDDLEBROOKS and 
JEFFREY A. CRAMER, Of 
Levin, Warfield, Middlebrooks, 
Graff, Mabie, Rosenbloum & 
Magie, P.A.
226 South Palafox Street 
Pensacola, Florida 32501
Attorneys for Appellants- 

Intervenors



IN THE UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

EDDIE STALLWORTH, et al.,
Plaintiffs,

J. W. PALMER, et al.,
Intervenors-Appellants.

vs. CASE NO. 75-3425
MONSANTO COMPANY,

Defendant.

certifies that the following listed parties have an interest 
in the outcome of this case .

CERTIFICATE REQUIRED BY FIFTH CIRCUIT LOCAL RULE 13(a):

The undersigned, counsel of record for Intervenors

Plaintiffs
Eddie Stallworth 
Angelo Moutrie 
Fred Henderson 
Robert Davis 
Jonas Fairlie

Jessee Ford 
Sam Bonham 
Ernestine Young 
Henry Golsten 
Charles Powe

Defendant
Monsanto Company



Intervenors

J. W. Palmer 
G. C. Brantley 
Richard S. Brown 
E. V. Antason, Jr. 
C. B. Kelley 
James D. Roberson 
R. H. Woodard 
W. D. Roberson 
W. S. Howell 
L. E. Sellers 
J. D. Ingram 
Don S. Smith 
Marvin Sanders
c. E. Bryan
c. R. Nelson
D. H. Morris
H. L. McCrone
L. D. Goodson
D. H. Smith

Bobby W. Morris 
Huey Courtney 
Pete Bartley 
W. L. Pugh 
J. W. Thompson 
C. E. McLelland 
H. C. Fowler 
W. L. Bingle 
R. D. Thomas 
R. C. Curtis 
Marcus Dobson 
A. J. McCroskey 
C. L. Payne 
Bill Morris 
C. F. Kast 
M. L. Chavers 
R. Y. Cotton 
Paul B. Vanlente 
R. K. Bryan

These representations are made in order that Judges of this Court 
may evaluate possible disqualification or recusal pursuant to 
Local Rule 13 (a) .

Attorney of Record for Appellants- 
Intervenors



TABLE OF CONTENTS
( N‘ Page

TABLE OF AUTHORITIES..................................... ii
ISSUE PRESENTED.......................................... 1
STATEMENT OF THE CASE AND FACTS.........................  2
ARGUMENT - INTRODUCTION.................................. 3

I. THE DISTRICT COURT HAD JURISDICTION
OVER THE RENEWED MOTION TO INTERVENE.....  4

II. THE GRANTING OF THE RENEWED MOTION 
TO INTERVENE WOULD NOT PREJUDICE 
THE EXISTING PARTIES TO THE LITIGA­
TION, NOR UNDULY DELAY THE PROCEEDINGS.... 6

III. INTERVENTION SHOULD HAVE BEEN ALLOWED
AS OF RIGHT............................... 9

CONCLUSION...............................................  12
CERTIFICATE OF SERVICE................................... 13

o



TABLE OF AUTHORITIES

CASES CITED PAGE(S)

General Motors Corp. v. Burns, 
50 F.R.D. 401 (D. Hawaii 1970) 10
Hodgson v. United States Mine 
Workers of America,
473 F. 2d 118 (D. C. Cir. 1972) 4
Jackson v. Sargent,
394 F. Supp. 162, 173 (D. Mass. 1975) 11
NAACP v. New York, 
413 U.S. 345 (1973) 5
New York v. United States, 
65 F.R.D. 10 (E.D.C. 1974) 5
New York Public Interest Research Group, 
Inc., v. Regents of the University of the 
State of New York,
516 F. 2d 350 (2nd Cir. 1975) 9, 10, 11
Raulie v. U .S.,
400 F. 2d 487, 526 (10th Cir. 1968) 8
Smith Petroleum Service, Inc. v. 
Monsanto Chemical Company,
420 F. 2d 1103 (5th Cir. 1970) . 00V

United States v. Allegheny-Ludlum 
Industries, Inc.,
517 F. 2d 826 (5th Cir. 1975)
Zimmer v. McKeithan,
467 F. 2d 1381 (5th Cir. 1972)

3

55



ISSUE PRESENTED

The issue on this appeal is whether the District 
Court erred in refusing to consider the motion to intervene.



STATEMENT OF THE CASE AND FACTS

This is an appeal from an order of the United States 
District Court for the Northern District of Florida denying the 
Appellants' (hereinafter referred to as Intervenors) renewed 
motion to intervene. An appeal has previously been taken from 
the denial of Intervenors' original motion to intervene in this 
litigation. The companion case, Number 75-2405, and the present 
appeal have been consolidated for argument purposes.

Appellants initially moved to intervene in this pending 
litigation on April 4, 1975. (R. 51) An order denying that motion
for intervention was entered on April 21, 1975. (R. 146-148) The
Court's rationale for denying the motion was that it was untimely 
filed in that it would impede the progress of hearings before a 
special Master which were in process at that time. (R. 147) The 
Intervenors renewed their motion to intervene on July 8, 1975, 
when the Master's hearings relative to the issues of back pay had 
been concluded. (R. 149-150)

At the time the renewed motion to intervene was filed, 
there was a hiatus in the litigation. Unlike the original motion, 
the renewed motion sought only to rectify the injustices resulting 
from the Court's order of March 7, 1975, abolishing group seniority 
as to all workers at defendant company. Intervenors intended to 
argue to the District Court that testimony would not have been 
necessary to decide this question of law and that it could have

-2-



been decided upon a single hearing. Nevertheless, the District 
Court summarily denied the renewed motion to intervene, without 
the benefit of any hearing on the matter. (R. 173-176) It is 
from that denial of the renewed motion to intervene that this 
appeal is taken.

Since many of the factual circumstances have been pre­
sented and legal arguments concerning this appeal have been made 
previously in Case Number 75-2405, this brief will concern itself 
largely with matters relative to the renewed motion to intervene 
and incorporated herein are all arguments previously made in Case 
Number 75-2405.

ARGUMENT
THE DISTRICT COURT ERRED IN DENYING THE RENEWED MOTION TO INTERVENE.

•Since 1966, this Court has consistently held that under 
Rule 24(a)(2), F.R.C.P., intervention as of right must be measured 
by a practical rather than techical yardstick. E .g, United States 
v. Allegheny-Ludlum Industries, Inc., 517 F. 2d 826 (5th Cir. 1975). 
The decision of the lower court in denying the renewed motion to 
intervene fails to take into account the "practical" effects of 
the motion to intervene, but instead denies the motion on the purely 
"technical" ground that the length of time that the suit has been 
pending since the filing of the original motion to intervene has

-3-



increased. The Court apparently considered the Intervenors' argu­
ment that the hearings of the Master would not need to be reopened 
as its order stated "If they were not, or if reopening of them 
was not required for other reason, then, nonetheless, there would 
be additional delay in getting to final determination of this long 
pending suit already too long delayed." (R. 174). No factual basis 
for this statement is found in the record. The District Court, then, 
measured the prejudice to the existing parties purely in terms of 
the length of time that this litigation has been pending. The amount 
of time which has elapsed since the litigation began is not in itself 
the determinative test of timeliness. Hodgson v. United States Mine 
Workers of America, 473 F. 2d 118 (D. C. Cir. 1972) ; Smith Petroleum 
Service, Inc, v. Monsanto Chemical Company, 420 F. 2d 1103 (5th Cir. 
1970).

I. THE DISTRICT COURT HAD JURISDICTION OVER THE RENEWED 
MOTION TO INTERVENE._________________________________

The District Court Judge expressed some reservations in 
his order concerning that Court's jurisdiction to consider the 
renewed motion to intervene. The renewed motion to intervene was 
properly brought in the District Court.

The motion to intervene which was filed on April 4, 1975, 
attempted to present to the Court two questions for determination.
One of those questions concerned "bumping" of certain white workers 
from the positions they held at the time of the March 7, 1975 order.

4_



The other question concerned the abolition of the group seniority 
system as it applied to all workers of the defendant company by the 
March 7 order. In denying that motion on the ground of timeliness, 
the Court would necessarily have considered the effect of the pre­
sentation of those two issues before the Court at that time. The 
renewed motion to intervene was filed on July 8, 1975, at a time 
when the active status of the litigation had changed. The renewed 
motion presented only the question of the abolition of the group 
seniority system as it applied to all workers of the defendant com­
pany. Thus, the renewed motion could have been considered by taking 
into account the circumstances as they existed on July 8, 1975 and 
the effect that the presentation of this one narrow issue would have 
on the proceedings at that time. The issue presented to the Court 
in the renewed motion to intervene is thus entirely different from 
the issue presented on the original motion and the jurisdiction 
over the contentions in the renewed motion would not have passed 
to the appellate court. The District Court's reliance on Zimmer v. 
McKeithan, 467 F. 2d 1381 (5th Cir. 1972) is thus misplaced.

Intervenors brought the renewed motion to intervene pursuant 
to holdings in NAACP v. New York, 413 U.S. 345 (1973) and New York v.
United States, 65 FRD 10 (E.D.C. 1974). Those cases stand for the
proposition that if a motion to intervene was denied on the ground 
of timeliness, because it would unnecessarily prejudice the existing

_5_



parties to the litigation, that motion could be renewed at a later 
date when such prejudice would not occur. The NAACP was allowed 
to intervene in the above mentioned litigation subsequent to the 
completion of the elections for that particular year. In the case 
at bar, the Court expressed its opinion that intervention in April 
of 1975 would seriously disrupt the hearings before the Master. 
Intervenors then moved to protect their rights by filing a timely 
notice of appeal. Once the hearings before the special Master were 
concluded, Intervenors again sought intervention pursuant to the 
holdings in the above mentioned cases. The Court failed to take 
these additional factors into consideration in denying the renewed 
motion to intervene solely on the basis of an increase in the length 
of time that the litigation had been pending. (R. 174)

II. THE GRANTING OF THE RENEWED MOTION TO INTERVENE 
WOULD NOT PREJUDICE THE EXISTING PARTIES TO THE 
LITIGATION, NOR UNDULY DELAY THE PROCEEDINGS.

Before beginning a factual discussion of the lack of pre­
judice that this intervention would cause, Intervenors would point 
out that the defendant company, Monsanto, did not oppose the 
original motion to intervene (R. 86-90) and that the plaintiffs 
have not opposed the renewed motion to intervene. (R. 158-159)
Thus, at one time or another, there was a recognition by all of 
the parties to this litigation that Intervenors had a right to be 
represented. The plaintiffs were legitimately protecting their

-6-



interests at the time of the original motion which attempted to 
present a bumping question to the court. Since that question is 
no longer sought to be placed before the Court, the plaintiffs 
have apparently recognized that they would not be prejudiced in 
any manner by the determination of the question which Intervenors 
seek to place before the court.

The complete turnabout in the defendant company's position 
is particularly shocking, especially in the light of the letter 
which the company presented to the Court on July 17, 1974, which 
states in pertinent part:

"Monsanto accordingly respectfully urges the Court 
upon grounds of fundamental due process and basic 
fairness to notify or direct notification of Monsanto's 
white employees of the pendency of this action and 
give them a reasonable opportunity to intervene, or 
be joined as defendants, and to be represented and 
heard at any and all hearings at which relief is con­
sidered which will or may adversely affect their 
interests. Monsanto feels so strongly about the 
equities involved that it will, with the Court's per- 
■ mission, voluntarily undertake to post such notices 
on its bulletin boards. It is also willing to include 
Mr. Spriggs' statement of plaintiffs' case with such 
notice." (e.s.) (R. 48)

This letter was attached as an exhibit to the defendant company's 
response stating that the company did not oppose the motion to 
intervene. (R. 86-90)

Subsequent to the writing of the above letter, the 
defendant company presented to this Court a lengthy brief in 
opposition to the motion to intervene and strenuously objected to 
the renewed motion to intervene. (R. 160-172) The defendant

- 7 -



company's original position, while not technically amounting to 
judicial estoppel, presents such a diametrically opposite position 
that the lower court should have evaluated this glaring inconsistency 
when determining the possible prejudice to the company by allowing 
intervention on July 8 , 1975. c.f. , Raulie v. U.S., 400 F. 2d 487 , 
526 (10th Cir. 1968). The record clearly shows that no such evalua­
tion was made. This further evidences that timeliness was not 
determined from all of the circumstances involved as mandated by 
this Court in Smith Petroleum Service, Inc, v. Monsanto Chemical 
Company, 420 F. 2d 1103 (5th Cir. 1970) .

Arguments that intervention would unnecessarily delay 
these proceedings must also be placed in context. This is a complex 
civil rights action which has been pending for over two years in 
the District Court. In such a case, many issues are involved. The 
issues which have been decided and the injunctive relief which has 
been granted to the black employees of the company are not challenged 
by Intervenors. The question of a formula for back pay awards, which 
has been the subject of the hearings before the Master, will not in 
any way be involved in the question which Intervenors seek to present 
to the Court. It is readily apparent from the docket entries in 
this case that there are other questions yet to be resolved in this 
litigation. (R. 1-31). As of July 8, 1975, the Master had not 
presented his opinion and findings of fact to the court. Surely 
the lower court could have arranged a hearing on Intervenors' con­
tentions while it was awaiting the Master's report. Other hearings

_8_



have been scheduled. The litigation continues. How would a 
hearing on the merits of Intervenors1 contentions further delay 
the litigation? Obviously it could not. Since the litigation 
has continued and the Intervenors seek no redetermination of any 
questions previously presented to the District Court, a hearing 
on their claims could in no way delay the litigation any more 
than it has already been delayed. The lack of prejudice to the 
existing parties to this litigation is thus readily apparent. It 
is respectfully submitted that the lower court's opinion that a 
hearing on the merits of Intervenors' motion for relief from order 
would further delay the proceedings has no basis in fact and con­
stitutes an abuse of the court's discretion. The renewed motion 
to intervene was therefore timely filed and the Court's denial of 
the motion to intervene should be reversed.

III. INTERVENTION SHOULD HAVE BEEN ALLOWED AS OF RIGHT.

With respect to the other requirements for intervention 
as of right under Rule 24(a)(2), F.R.C.P., Intervenors would 
supplement discussion as to intervention as of right.

In New York Public Interest Research Group, Inc, v. 
Regents of the University of the State of New York, 516 F. 2d 350 
(2nd Cir. 1975) a pharmaceutical association and three individual 
pharmacists moved to intervene in an action brought by consumers 
to enjoin the regents of the University of the State of New York

- 9-



from enforcing a state-wide regulation prohibiting the price of 
prescription drugs from being advertised. The District Court for
the Northern District of New Yorh denied the motion to intervene

n with respect to the association and the Court of Appeals reversed. With respe
of pharmacists, the Court held that it had a sufficient interest 
to permit it to intervene since the validity of a regulation from
which its members benefited was challenged.

A similar situation is presented in the case at bar.
interveners and other employees of Monsanto have benefited for 
many years from a system of group seniority which formed the basis

t. K nnfifq at the defendant company's plant, for promotions and other benefits at the
• :rv Y\as been completely abolished. It is thus That system of seniority has Deen u ^

clear that the Interveners have a significantly protectable interest
which would permit them to intervene as of right in the case at bar.

ern tt p n 401 (D. HawaiiSee also, G e n e r a l _ M o t o r ^ ^
1970). .

The court in New_Jfork_IhibPr^—
discussed how the disposition of that action would as a practical 
matter impair or impede the pharmacists' ability to protect their 
interests. In stating that it was clear that the pharmacists an 
the association were so situated that the disposition of the action 
would as a practical matter impair or impede their ability to pro ec 
their interests, the Court was not persuaded by the contention o 
the plaintiffs that the pharmacists could protect their interests 
after an adverse decision in the instant case by attaching any new

10_



regulation on constitutional, anti-trust, or unfair competition 
grounds. The Court held that such contentions ignored the possible 
stare decisis effect of an adverse decision. Id., at 352. As 
argued in the briefs in Case Number 75-2405, the stare decisis 
effect of the case at bar on the rights of Intervenors would 
certainly be as great and more than likely of greater detriment 
than that in New York Public Interest Research Group.

In Jackson v. Sargent, 394 F. Supp. 162, 173 (D. Mass. 
1975), an action was brought against state officials charging 
racial discrimination on the part of defendant officials with 
respect to hiring and promotion in various state agencies. In 
discussing several procedural aspects of that case, the Court 
stated that it could see an arguable interest on the part of white 
applicants for state jobs and promotions and would entertain motions 
to intervene from interested parties should they desire to so 
intervene.

This is a case of first impression and presents a signi­
ficant question in the continually expanding area of civil rights 
law. Past intervention decisions have been attempts to determine 
whether individual minority plaintiffs or larger organizations 
purporting to represent the interests of those minorities should 
carry the ball in litigation. Not one employment discrimination 
case has focused upon the rights of "majority" employees who might 
be adversely affected by a Court's ruling. A reversal of the lower 
Court's decision in the case at bar is thus necessary to provide a

-11-



vehicle for aggrieved "majority" employees to complain of errors 
committed by the courts in civil rights litigation, which errors 
have the effect of substantially impairing majority employees' 
rights.

CONCLUSION

Since intervention should have been allowed as of right 
and because the District Court abused its discretion in denying 
the motion to intervene on the ground of timeliness, Intervenors- 
Appellants respectfully submit that the denial of the renewed 
motion to intervene should be reversed.

D. L. MIDDLEBROOKS and 
JEFFREY A. CRAMER, Of
Levin, Warfield, Middlebrooks, Graff, 

Mabie, Rosenbloum & Magie, P.A. 
Seville Tower - 226 South Palafox St. 
Pensacola, Florida 32501
Attorneys for Intervenors-Appellants

-1 2-



CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Brief has
been furnished to Kent Spriggs, Esquire, 324 W. College Avenue, 
Tallahassee, Florida; Elaine R. Jones, Esquire, 10 Columbus Circle, 
Suite 2030, New York City, N.Y. 10019; R. Lawrence Ash, Jr.,
Esquire, and Susan A. Cahoon, Esquire, 3100 The Equitable Building, 
Atlanta, Georgia, 30303; Robert P. Gaines, Esquire, P. 0. Box 12950, 
Pensacola, Florida, by regular U. S. Mail and Hand Delivery, this

V '1  ̂day of 1975.

o
Of Counsel for Intervenors-

Appellants

-13-