County of Los Angeles v. Davis Hiring Quota Case Dismissed

    Shipnmt? (Emtri oi ths Bt<xivs
October Term, 1975 

No. 74-1600

A n t h o n y  M . S alone , J r .,
Petitioner,

v .

U nited  S tates of A merica , et al.

ON PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

PETITIONER’ S REPLY MEMORANDUM

J ack  Greenberg 
J ames M. N abrit , III 
C harles S teph en  R alston 
M elvyn  L eventhal  
B arry L . G oldstein 
B ill  L an n  L ee 
E ric S chnapper  

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Petitioner



In the

(tort of tip luttrii §>tatrs
October Term, 1975 

No. 74-1600

A n t h o n y  M. S alone , J b .,
Petitioner,

v.

U nited  S tates of A merica , et al.

ON PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

PETITIONER’ S REPLY MEMORANDUM

Although the government does not oppose certiorari in 
this case or Chandler v. Roudebush, No. 74-1599, and peti­
tions for a writ of certiorari in United States v. Sperling, 
No. 75-247, the government suggests that the Court grant 
certiorari only in Chandler, and defer action in this case 
and Sperling. Petitioner maintains that certiorari should 
be granted in all three cases.

This Court has granted certiorari in related cases where 
the question presented was susceptible to a variety of an­
swers some of which might lead to differing dispositions 
of those cases. This practice avoids the need for successive 
grants of certiorari and permits the Court to fashion a 
rule in the context of a variety of situations requiring 
concrete application, rather than in the abstract. See e.g. 
Furman v. Georgia, 408 U.S. 238 (1972); compare United



2

States v. Ortiz, 45 L.Ed 2d 623 (1975) with United States 
v. Brignoni-Ponce, 45 L.Ed. 2d 607 (1975). In litigation 
under section 717 the lower courts have fashioned more 
than half a dozen different standards as to when a de novo 
trial is required. Petition 11-13.

Sperling, Chandler and Salone present a variety of fac­
tual situations. Petitioner Chandler sought unsuccessfully 
to engage in discovery; respondent Sperling indicated a 
willingness to submit his case on the administrative record, 
but insisted the court make an independent determination 
as to whether there was discrimination ;a petitioner Salone’s 
case was dismissed before he could begin discovery, and 
the merits of his case must turn, inter alia, on the credi­
bility of witnesses who never were required to testify in 
court. In Salone’s case, though not in all others, the ad­
ministrative record involved conflicts in sworn testimony. 
In Salone both the investigator and the hearing officer found 
for petitioner only to be reversed by higher authorities; in 
Sperling no such finding was made. Mr. Salone was repre­
sented in the administrative proceeding by an attorney; 
petitioner Chandler was not. Although petitioner main­
tains that a de novo hearing is required in all three cases, 
the Court might choose to formulate a standard under 
which the factual differences among these cases would be 
of significance; such a formulation should be based on a 
familiarity with the broad diversity of circumstances pres­
ent in federal employment litigation and revealed by 
Salone, Chandler and Sperling.

The courts of appeals decisions in these three cases 
differ so widely that a decision in any one case might not 
be dispositive of the others. The Ninth Circuit in Chandler 
afforded petitioner an independent decision on the merits

*515 F.2d 465, 460 (3d Cir. 1975).



3

but forbade the introduction of additional evidence, where­
as the Tenth Circuit in Salone both forbade such evidence 
and declined to require such an independent decision; thus 
if Chandler were affirmed on the ground that further evi­
dence could not be introduced, Salone would thereafter have 
to be heard to consider whether the Tenth Circuit erred in 
not requiring the decision afforded by the Ninth Circuit. 
Conversely, if Chandler were reversed on the ground that 
that petitioner was entitled to introduce additional evi­
dence, certiorari would then have to be granted in Sperling 
to decide the appropriate standard where no such evidence 
was proffered.

Even where a single question of law is at issue, several 
cases are appropriately considered together if the Court’s 
decision ought to reflect a knowledge of the factual situa­
tion in which that question arises as revealed by a variety 
of cases. See e.g. Brown v. Board of Education, 347 U.S. 
483 (1954); compare N.L.R.B. v. J. Weingarten, Inc.. 43 
L.Ed 2d 171 (1975) with I.L.G.W.U. v. Quality Mfg. Co., 
43 L.Ed. 2d 189 (1975). Resolution of the de novo issue 
would be aided by understanding of the federal administra­
tive processes for handling complaints of employment dis­
crimination. While petitioner maintains that a de novo 
trial is required by both the language and legislative history 
of Title VII, that conclusion is also supported by the grave 
defects of the administrative process. Petitioner contends 
that that process does not and is not designed to unearth 
the relevant evidence, and that the fact finding process 
is so tainted by a conflict of interest on the part of the 
defendant agency as to be inherently unreliable. See Brief 
for Petitioner in Brown v. General Services Administra­
tion, No. 74-768. The severe limitations in the administra­
tive process is best perceived in the context of several 
different cases in which the administrative complaints were



4

processed in a variety of ways and rejected for different 
reasons.

The only reason suggested by the government for grant­
ing certiorari solely in Chandler is that the government 
maintains that the judgment in Chandler “ is correct,” but 
makes no such assertion as to the judgment in Salone and 
does not claim that Sperling was wrongly decided. The 
government’s belief that it is more likely to prevail in 
Chandler than in Salone or Sperling is not, however, 
among the factors which the Court considers in exercising 
its discretion to grant the certiorari. See Rules of the 
Supreme Court Rule 19(1).

For these reasons certiorari should be granted in all 
three cases to review the conflicting decisions in Salone, 
Chandler and Sperling.

Respectfully submitted.

J ack  Greenberg 
J ames M . R abbit, III 
C harles S teph en  R alston 
M elvyn  L eventhal  
B arry L . G oldstein 
B ill  L a n n  L ee 
E ric S ch napper  

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Petitioner



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