Boyd v. Pointe Coupee Parish School Board Supplemental Brief for Plaintiffs as Amici Curiae

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

No. 84-8999

HENRY TAYLOR, individually, et al.,
Individual Plaintiffs-Appellants,

MICHAEL HOWARD, et al.,
Plaintiff Class-Appellees,

v .

JOHN L. McLUCAS, et al.,
Defendants-Appellees.

On Appeal from the United States District Court 
for the Middle District of Georgia

BRIEF FOR PLAINTIFF CLASS-APPELLEES 
RESPONDING TO BRIEF OF 

INDIVIDUAL PLAINTIFFS-APPELLANTS

This case is not entitled to preference in processing or 
disposition.

JULIUS LeVONNE CHAMBERS 
RONALD L. ELLIS 
99 Hudson Street 
New York, NY 10013

BILL LANN LEE 
Center for Law in the

Public Interest 
10951 W. Pico Boulevard 
Los Angeles, Calif. 90064

THOMAS A. JACKSON 
655 New Street 
Macon, Georgia 31201

(213) 470-3000

JOSEPH H. HENDERSON
American Federation of

CHARLES A. MATHIS, JR.
BRIAN COMBS
Mathis & Coates
909 Fulton Federal Building
Macon, Georgia 31202

Government Employees
1325 Massachusetts Ave., NW
Washington, D.C. 20005

Attorneys for Plaintiff Class-Appellees



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

No. 84-8999

HENRY TAYLOR, individually, et al.,

Individual Plaintiffs-Appellants, 
MICHAEL HOWARD, et al.,

Plaintiff Class-Appellees,

JOHN L. McLUCAS, et al.,

Defendants-Appellees.

On Appeal from the United States District Court 
for the Middle District of Georgia

BRIEF FOR PLAINTIFF CLASS-APPELLEES 
RESPONDING TO BRIEF OF 

INDIVIDUAL PLAINTIFFS-APPELLANTS

This case is not entitled to preference in processing or 
disposition.

v

JULIUS LeVONNE CHAMBERS 
RONALD L. ELLIS 
99 Hudson Street 
New York, NY 10013

BILL LANN LEE 
Center for Law in the

Public Interest 
10951 W. Pico ..Boulevard 
Los Angeles, Calif. 90064

THOMAS A. JACKSON 
655 New Street 
Macon, Georgia 31201 JOSEPH H. HENDERSON

(213) 470-3000

American Federation of
CHARLES A. MATHIS, JR.
BRIAN COMBS
Mathis & Coates
909 Fulton Federal Building
Macon, Georgia 31202

Washington, D.C. 20005
1325 Massachusetts Ave., NW

Government Employees

Attorneys for Plaintiff Class-Appellees



I.
CERTIFICATE OF INTERESTED PERSONS 

Pursuant to Eleventh Circuit Rule 22(f)(2), the 
undersigned counsel of Record for Plaintiff Class-Appellees 
certifies that the following parties have an interest in the 
outcome of this case:

Trial Judge

Wilbur D. Owens, Jr.

Attorneys

Bill Lann Lee 

Julius LeVonne Chambers 
Ronald L. Ellis 

Thomas M. Jackson 

Charles A. Mathis, Jr.
Joseph Henderson 
Anne L. Weisman 
Raphael Gomez 

Joe D. Whitley 
John L. Lynch 

Edward T. M. Garland 

Austin E. Catts 
Robin N. Loeb 

Charles A. Shanor 
James W. Howard

CC152#6 i



Organizations Representing Parties
Center for Law in the Public Interest 

NAACP Legal Defense and Educational Fund, Inc 
Mathis & Coates

American Federation of Government Employees, 
AFL-CIO

U.S. Department of Justice 

Garland, Nuckolls & Catts, P.C.

Warner Robins Constitutional Rights Fund, Inc 
Floyd, Howard & Ware

Parties

Henry Taylor, Jr.

Michael Howard
Oliver Gilbert
Lewis T. Jones

Wilson L. Robinson
Vivian Cainion
Joe Gary, Jr.

V ™
Jesse A. Williams
David Savage

Edward Killens, Jr.
Alfred L. Sandifer
Thomas Scott /)

\
Ruth W. Austin

Walter L. Mathis

Richard E. Austin
Rufus Dean

CC152#6 ii



p (nvvElderidge Linder ^
Mildred B. Brandful Q '

Leila L. Gordon
Lois Wiggins

Ulysses Robinson

Fred Gray

Angie T. McCombs
Joseph Day
Washington Willis

Virtus Blalock '̂rrv'"

Willie Frank Brown
Harold Ross

Willie B. Mobley

Class of Black Employees, Plaintiff Class- 
Appellees

United States Air Force 

Warner Robins Air Logistics Center 
John L. McLucas 

Robert Poss, et

Samuel White

Attorney for Plaintiff 
Class-Appellees

CC152#6 iii



II.
STATEMENT OF PREFERENCE

This case is not entitled to preference in processing 
and disposition pursuant to Eleventh Circuit Rules 11 and 
22 (f)3) .

III.
STATEMENT REGARDING ORAL ARGUMENT 

Plaintiff Class-Appellees do not believe oral argument 
is necessary. Certain individual class members seek to opt out 
of a class settlement that they concede is otherwise fair and 
adequate.

CC152#6 iv



IV.
TABLE OF CONTENTS

E a9e
!• CERTIFICATE OF INTERESTED PERSONS ...................  i

II. STATEMENT OF PREFERENCE . . .

Iri- STATEMENT REGARDING ORAL ARGUMENT ...................  iv
V. TABLE OF A U T H O R I T I E S ................................ ...

VI. STATEMENT OF I SSUES................................
VII. STATEMENT OF THE C A S E ...........................  1

A. Course of Proceedings .........................  ^
B. Statement of F a c t s .............................  4
C. Statement of the Standard of R e v i e w ............  g

VIII. SUMMARY OF AGREEMENT .......................  6
IX. STATEMENT OF JURISDICTION ...........................  6
X. A R G U M E N T ....................................  ?

A. The Court Below Did Not Abuse Its Discretion by
Appointing Lead Counsel for the Class ........... 7
1. The R e c o r d ..................................  7

2. Absence of Abuse of Discretion ...............  g

B. The Court Below Did Not Abuse Its Discretion by
Not Including an Opt Out Provision................  9
1. The R e c o r d ..................................  g

2. Absence of Abuse of D i s c r e t i o n ...............
XI. C O N C L U S I O N ..................... . .

CC152#6 v



V.
TABLE OF AUTHORITIES

Page
Cases

American Acceptance Corp. Security Cases v. Arnall,
Golden & Gregory, 593 F.2d 642 (5th Cir.), cert.
denied. 444 U.S. 956 (1979)............... ~ T T  . . .  8

Guerine v. J&w Investment, Inc.,
544 F . 2d 863 (5th Cir. 1977) .......................  8

Holmes v. Continental Can Co..
706 F . 2d 1144 (11th Cir. 1 9 8 3 ) ........... 9, 10, 11, 12

28 U.S.C. § 1291
S tatutes

6

Rules
Fed. R. Civ. Proc.

Rule 23(b)(2) ..........................
Rule 23 (b) ( 3 ) ........................! ] ’ *
Rule 23(d) ............................• • • • • • • •

Uniform Guidelines on Employee Selection, 5 C.F.R.
§ 300.103, 28 C.F.R. § 50.14, 29 C.F.R. Part 1607 . .

CC152#6 vi



VI.
STATEMENT OF ISSUES

Whether the district court abused its discretion by
(a) appointing lead counsel for the plaintiff class, or

(b) approving a employment discrimination class action 

settlement without a provision permitting individual class 
members to opt out.

VII.

STATEMENT OF THE CASE

This appeal has been filed by thirty-one individual 
class members. They seek to opt out of a class action 

settlement. The plaintiff class of approximately 3,200 black 
employees and file this brief, as appellees, in opposition.

Plaintiff class-appellees have filed a separate brief 
responding to the proposed intervenors. (Brief for Plaintiff 

Class-Appellees Responding to Brief for Proposed Intervenor- 
Appellants.)

A . Course of Proceedings.

The base-wide employment discrimination action against 
the Warner Robins Air Logistics Center ("Warner Robins") was 
filed on October 31, 1975 by six black employees, Michael 

Howard, Henry Taylor, Jr., Oliver Gilbert, Clifford Scott, Lewis 
T. Jones, Thomas W. Miller, on behalf of themselves and all 
others similarly situated. Howard v. McLucas, M.D. Ga. Civ.

Act. No. 75-168-Mac. (R. 19.) A class of all past, present and

future black employees was certified on October 27, 1976.

CC152#6 1



(R. 178.) The size of the class is approximately 3,200 black 
employees. (R. 1548.) Plaintiffs' attorneys were listed as 
Bernice Turner of Macon, Georgia ("local counsel") and several 
attorneys associated with the NAACP Legal Defense and 

Educational Fund, Inc. (NAACP LDF). (No appeal has been filed 

by plaintiffs in American Federation of Government Employees v.
Stetson, M.D. Ga. Civ. Act. No. 79-016, which has been 
consolidated with Howard.)

On January 25, 1980, plaintiffs' local counsel filed a 
request to withdraw the names of NAACP LDF staff attorneys as 
counsel for the plaintiffs. (R. 431.) The request was 

accompanied by a motion to reduce the class to black employees 

of only one of Warner Robins' departments. (R. 428.) NAACP LDF 
counsel responded on April 16, 1980 that they would not oppose 

the request because local counsel and named plaintiffs would not 
cooperate in pursuing the class action. (R. 436.) The 
response stated, inter alia, that NAACP LDF counsel believed 
that local counsel could adequately represent the plaintiffs 

individually, but declined to make such a statement regarding 
local counsel's representation of the class.

After a conference with counsel, the Court stated that 
it would confer with the named plaintiffs in chambers without 
counsel present. (R. 442.) Local counsel advised the Court 

that the named plaintiffs desired to proceed with a class action 

of reduced scope or individually with her as their counsel, and 

objected to any chambers conference. (R. 443-48.) The chambers 
conference was held.

CC152#6 2



Contrary to local counsel's statements, named
plaintiffs did not tell the Court below that they desired to be

represented by local counsel. The Court described the result of
its conference with the named plaintiffs:

The upshot of the conference was that the 
named plaintiffs desired that representation 
which would best protect the merits of their 
claim. Without the legal expertise necessary 
to make decisions, the named plaintiffs 
placed the court in the position of deciding 
which counsel, if any, will best represent 
the class.

(R. 451-52.) Thereupon, on September 2, 1980, the district 

court issued an order making NAACP LDF plaintiffs' lead counsel 
because they "will best represent the interests of the class," 

and ordered the withdrawal of local counsel as an attorney of 
record. (R. 451-54). The court stated that the basis of its 

decision to as its authority "to protect each and every class 
member, named or absent." (R. 453.) NAACP LDF was ordered to 
suggest to the Court local counsel who, in their opinion, "will 
vigorously protect the claims of each class member." (R. 454.) 

Thereupon, Thomas M. Jackson, Esq., and Charles E. Mathis, Jr., 
Esq., of Macon, Georgia were added as counsel for plaintiffs.

No interlocutory appeal of the September 2, 1980 order 
was filed by the named plaintiffs or former local counsel.

Named plaintiffs were represented on both individual and class 
claims without any objection by NAACP LDF and Messrs. Jackson 
and Mathis in numerous discovery and motion matters. (See 
R. 6-18.)

On June 15, 1984, counsel for the parties submitted a 
proposed consent decree. (R. 1129.) The consent decree con­

CC152#6 3



tained class-wide injunctive relief and specific individual 
relief for named plaintiffs, but contained no provision 

permitting class members to opt out to pursue individual claims 
in other lawsuits. (R. 1145.) The proposed decree was 
preliminarily approved (R. 1145-46) , and class members were 
given an opportunity to object (R. 1174).

Several class members, including several of the 
individual plaintiffs-intervenors, presented their individual 
claims at the fairness hearing on August 9, 1984. (R. Vol. 11,

pp. 127-39.) No class member mentioned the September 2, 1980 
order or objected that former local counsel had been removed.

No class member requested the opportunity to opt out of the 
class settlement.—^

The proposed decree was approved. (R. 1533.)
A timely notice of appeal was filed by Henry 

Taylor, Jr. and thirty (30) other individual class members.

1573.) Four of the six named plaintiffs in Howard appealed. 
Neither the AFGE or the individual plaintiff in the AFGE v. 
Stetson litigation has appealed.

B . Statement of Facts

The decree provides the following relief for the
class:

1/ None of the letters of objection filed on behalf of 70 
class members, which have not been included in the record on 
appeal, objected to the proposed decree on the basis of the 
September 1980 order or sought to opt out. (See R. 1548.)

CC152#6 4



(1) a general nondiscrimination provision with a 
procedure for individual class members to challenge 

promotional qualification criteria that have an adverse 
impact or otherwise do not comply with the Uniform 
Guidelines on Employee Section, 5 C.F.R. § 300.103, 28 
C.F.R. § 50.14 and 29 C.F.R. Part 1607;

(2) special promotional relief to 240 specific 
permanent positions to be filled through internal merit 

promotional processes from among qualified class members to 

every other next available vacancy on the basis of length 
of employment and supervisory appraisals;

(3) a class compensation fund of $3.75 million to be 
distributed based on length of employment and the filing of 
administrative complaints of discrimination;

(4) specific retroactive promotions to named 
plaintiffs;-^ and

(5) retention of jurisdiction for five years.

2/
— The four named plaintiffs who have appealed will 

receive the following promotional relief. All four were WG-10 
level employees when the case was filed in 1975.

Name
Promotion 

(Series and Grade) Effective Date 
of Promotion

Oliver Gilbert WG-2604-11 January 1, 1977
Michael Howard WG-2604-11

WG-2610-12
January 1, 1977 
January 1, 1978

Lewis T. Jones WG-2604-11
WG-2604-12

January 1, 1977 
January 1, 1978

Henry Taylor, Jr. WG-2604-11
WG-2604-12

January 1, 1977 
January 1, 1978

(R. 1145.)

CC152#6 5



Individual plaintiffs-appellants have stated that they 
"do not contest the fairness of the Consent Decree to the 

class." (Brief of Plaintiff-Appellants, p. 9.) They seek 
inclusion of on opt out provision in the decree for the sole 
purpose of pursuing their individual claims in other lawsuits.

C . Statement of the Standard of Review

The applicable standard of review is whether the 
district court abused its discretion in approving the consent 
decree.

VIII.
SUMMARY OF AGREEMENT

Individual plaintiffs-appellants did not object below 
to the Court's appointment of class counsel or removal of former 

local counsel. The district court did not abuse its discretion 
by making NAACP LDF lawyers lead class counsel in order to 
protect the interests of the class.

An opt out procedure was not sought below, and 
therefore, is not a proper matter for appeal. The absence of an 
opt out procedure, in any event, was not on abuse of discretion 
of this case.

IX.

STATEMENT OF JURISDICTION 
The Court has jurisdiction pursuant to 28 U.S.C.

§ 1291.

CC152#6 6



X.
ARGUMENT

The thirty-one (31) individual class members who have 
appealed seek to opt out of the settlement obtained by their 

counsel. They do not object to the fairness or adequacy of the 
settlement on behalf of the class (Brief for Plaintiffs- 

Appellants, p. 9); they seek only the right to present their 
individual claims in other lawsuits.

A * The Court Below Did Not Abuse Its Discretion by Appointing 
Lead Counsel for the Class.
1. The Record.

The record is clear that no named plaintiff, class 
member or any other person objected to the court's appointment 
of NAACP LDF lawyers as class counsel or the court's decision to 
remove former local counsel. Appellants and other class members 
acquiesced in the court's decision. The case proceeded as a 
class action for four years of intensive trial preparation 
without any protest by the individual class members as to their 

representation. Nothing remotely suggests that they or any 
other class member were prevented from retaining their own 

counsel at any time. Class members, including some appellants, 
presented their request for greater individual relief to the 
court below. No class member objected to appointment of the 

NAACP LDF as class counsel or mentioned former local counsel at 
the fairness hearing as a reason to disapprove the proposed 
consent decree.

CC152#6 7



Thus, the basic factual premise of the appeal —  that 
certain class members were denied the right to counsel of their 
choice —  is completely unsupported. The post hoc claim that 
four Taylor, Howard, Gilbert, and Jones —  of the six named 
plaintiffs did "not consent" to the appointment of lead counsel 
for the class is belied by the record. Former local counsel 

asserted that named plaintiffs desired that she represent them. 
The court personally interviewed the plaintiffs, and concluded 
that plaintiffs wanted only the best representation possible. 
The lower court appointed NAACP LDF lawyers as lead class 

counsel in 1980. No named plaintiff or class member objected 
then or thereafter.

2• Absence of Abuse of Discretion.

Individual plaintiffs-appellants argue that "[i]f the 
class interests are not being protected, the trial court should 
enter appropriate orders or decertify the class," citing 
Rule 23(d), Fed. R. Civ. Proc.; American Acceptance Corp. 

gecurity Cases v. Arnall, Golden & Gregory. 593 F.2d 642 (5th 
Cir•)> cert, denied, 444 U.S. 956 (1979); Guerine v. J&w

Investment,_Inc., 544 F.2d 863, 864 (5th Cir. 1977). (Brief for

Plaintiffs-Appellants, p. 7.) They further argue that the lower 
court's appointment of lead class counsel was inappropriate 
because there was "no evidence that retained counsel could not 

adequately represent the class interest." (Id.) That claim is 
absurd. The District Court found, and no one disputed, that 

NAACP LDF lawyers "will best represent the class" because:

CC152#6 8



(1) The lack of resources of former local counsel and 
her move to Columbus, Georgia "may jeopardize the class 
claims";

(2) NAACP LDF attorneys had carried "the primary 
burden in the litigation"; and

(3) Doubts that former local counsel could adequately 
represent absent class members were "a valid concern."

Furthermore, former local counsel stated several times that she 
wished to proceed with a smaller class or on behalf of 

individual plaintiffs only rather than the class certified by 
the court.

There was no abuse of discretion.

B • The Court Below Did Not Abuse Its Discretion by Not 
Including an Opt Out Provision.
1. The Record.

Individual plaintiffs-appellants did not seek, and the 
court below did not deny, any request to include an opt out

provision. The failure to present their claim below is fatal to 
this appeal.

Individual plaintiffs-appellants do not claim that 
they exhausted their opt out claim below; they seek to excuse 
their failure to exhaust, arguing that "[i]t is difficult to 

speculate what action might have been deemed appropriate to 

initiate the opt out procedure." (Brief for Plaintiffs- 

Appellants, p. 11.) The short answer is provided in Holmes v. 

Continental Can Co., 706 F.2d 1144, 1151-52 (11th Cir. 1983).

CC152#6 9



In Holmes, this Court observed that certain class 
members "attempted repeatedly to opt out," "to avoid being part 

of the class at all," and that "[ojbjectors to th[e] settlement 
moved in the district court that opt out procedures be 

established for class members dissatisfied with the monetary 
aspects of the proposed settlement." id. m  the instant case, 
no one attempted to opt out, no effort was made to avoid 

becoming part of the class action, and no one objected to the 
lack of an opt out provision in the proposed settlement. The 

issue was raised for the first time by individual plaintiffs- 
appellants in their brief filed in this Court.

Individual plaintiffs-appellants also claim that 
"plaintiffs were marooned without benefit of legal counsel." 
(Brief for Plaintiffs-Appellants, p. 11.) As noted above, 

individual plaintiffs-appellants acquiesced in, and did not 
object to, the representation provided by NAACP LDF lawyers and 

substitute local counsel. Individual plaintiffs-appellants had 
almost two months between the submission of the proposed consent 

decree and the August 9, 1984 fairness hearing to obtain other 
counsel. They did not obtain other counsel, although other 

class members did retain counsel to represent their individual 
interests. (E.g., Vol. 11, pp. 127, 138.) (Two of the 

individual plaintiffs-appellants stated that they desired 

representation by other counsel, including one who asked for 

appointment of counsel. The court responded that there were no 
resources for such an appointment, but that there was "[n]o 

reason you can't hire a lawyer if you want one. That's up to

CC152#6 10



you.' (Vol. 11, pp. 133-34.)) Moreover, no request for relief 
remotely resembling an opt out provision was ever made.

2• Absence of Abuse of Discretion.

In Holmes v. Continental Can Co.. 706 F.2d at 1151-60, 
the principal case relied upon by individual plaintiffs- 

appellants, the Court ruled that a district court's failure to 
provide class members with an opt out procedure was improper in 
a case where the settlement was not fair to the class. In 

Hoijnes, half the monetary relief went to eight named plaintiffs, 
many class members received no relief at all, and an opt out 

procedure was sought by objectors because claims of class 
members were heterogeneous.

Unlike Holmes, the relief is not disproportionately 
concentrated in the hands of named plaintiffs. The seven named 
plaintiffs in the Howard and AFGE cases, including four 

individual plaintiffs-appellants, each received promotions; 
class members, however, will receive 240 other promotions. The 

named plaintiffs will receive monetary relief as a result of 
retroactive promotional relief and a share of $37,500 of the 
class compensation fund; the class of approximately 3,200 will 
share a $3.75 million class compensation fund (less $37,500). 

Unlike Holmes where class members appealed the concentration of 
relief in the hands of named plaintiffs, this appeal is filed by 

class members who concede that the class relief is fair and 
adequate.

Many class members in Holmes who had filed charges of 
discrimination nevertheless received no relief at all. in the

CC152#6 11



instant case, all the individual plaintiffs-appellants and all 
class members, except the most junior, are eligible to receive 
shares of the class compensation fund and are eligible for 

promotional relief. The class compensation formula, which gives 
larger shares to more experienced employees with credit given to 
class members who filed complaints of discrimination, is fair 

and equitable. The promotional relief formula, based on years 
of experience and supervisory appraisal scores, is fair and 
adequate.

In Holmes, the opt out provision served to mitigate 
remedial provisions resulting in no relief to many class members 
and a disproportionate share of total recovery going to a few 
individuals. In the instant case, an opt out provision will 

serve no such function. The decree's remedial provisions 
contain no apparent unfairness. An opt out provision is sought 

by thirty-one class members, comprising 1% of the class, only as 
a means to obtain greater individual relief.

Moreover, unlike Holmes, the absence of an opt out 
procedure was not even raised below. No class members who has 

appealed stated any willingness to forego the individual relief 
obtained for them through settlement in favor of going forward 
on their own.

No showing was made that the interests of class 
members are heterogeneous in this case. See Holmes. Unlike 

some Title VII cases that resemble a series of individualized 

Rule 23(b)(3) proceedings, the Warner Robins promotional scheme 
is a computerized system in which employees do not apply for 

positions. They are automatically considered for promotion by

CC152#6 12



computerized evaluations of job experience, test scores and 
supervisory appraisals. The system, in short, calls for a 

Rule 23(b)(2) analysis focusing on systemic problems that affect 
an essentially homogeneous class as a whole.

The lower court correctly concluded that:

12. . . . .  It is inevitable that some
class members believe that the relief 
obtained by their counsel through negotia­
tion is inadequate. However, all should 
keep in mind that "the very essence of a 
settlement is compromise, 'a yielding of 
absolute and an abandoning of highest 
hopes.'" Officers for Justice v. Civil 
Service Comm'n, 688 F.2d 624 . 3 not-ing 
v. Hinton, 599 F.2d 1330. The court views 
as significant the fact that only 2% of all 
class members have objected to the settle­
ment.

13. Several class members objected to 
the number of promotions provided in the 
Decree and stated that the promotional 
relief should include more supervisory and 
GS positions, but produced no facts in sup­
port of their opinions. Contrary to these 
unsupported opinions, the evidence submitted 
by the parties establishes that the 240 pro­
motions to designated positions have factual 
support in the record and are fair, ade­
quate, and reasonable relief. Moreover, 
class members will be eligible for promo­
tions through regular promotion procedures 
over and above the 240 promotions; and the 
Consent Decree's procedural safeguards for 
class members denied promotions can be ex­
pected to increase the likelihood for non- 
discriminatory promotions to all positions.

The Court is unwilling to speculate on 
the merits of particular individual claims. 
Compromise is an integral part of any set­
tlement. Nor will the court take issue with 
the judgment of class counsel that a settle­
ment for classwide promotional and monetary 
relief was preferable to the risks of trial. 
The Decree's formulas for distribution of 
promotional and monetary relief by factoring 
in greater job tenure and whether admini­
strative charges of discrimination were ever 
filed, appear calculated to accord relief to

CC152#6 13



those with the greatest likelihood of suc­
cess on the merits. The judgment of the 
parties that class members with greater job 
tenure and those who filed charges were more 
likely to prove discrimination is a fair and 
reasonable judgment.

(R. 1353-54.)

lower court did not abuse its discretion in 
approving this settlement without an opt out provision. Even if 
the issue had been raised, the district court could properly 

have concluded that the interest of thirty-one class members in 
obtaining greater individual relief was outweighed by the 

interest of the class as a whole in obtaining the substantial 
relief provided by the decree.

XI.

CONCLUSION
The district court's approval of the consent decree 

was in the best interests of the class and class members as a 

whole, and, therefore, should be affirmed. The court below did 

not abuse its discretion in this case by appointing lead counsel 
and by failing to provide an opt out procedure.

DATED: April 30, 1985. Respectfully submitted,

BILL LANN LEE 
Center for Law in the 

Public Interest 
10951 W. Pico Boulevard 
Los Angeles, Calif. 90064 
(213) 470-3000

JULIUS LeVONNE CHAMBERS 
RONALD L. ELLIS 
99 Hudson Street 
New York, N.Y. 10003

CC152#6 - 14 -



JOSEPH H. HENDERSON 
American Federation of 

Government Employees 
1325 Massachusetts Ave. , NW 
Washington, D.C. 20005
THOMAS A. JACKSON 
655 New Street 
Macon, Georgia 31201

CHARLES A. MATHIS, JR.
BRIAN COMBS 
Mathis & Coates 
909 Fulton Federal Building 
Macon,^Georgia A 31202

Bi.ll Lann Lee

Attorneys for Plaintiff 
Class-Appellees

CC152#6 15



CERTIFICATE OF SERVICE

This will certify that I have this date served the 
following counsel in this action with true and correct copies of 

the foregoing BRIEF FOR PLAINTIFF CLASS-APPELLEES RESPONDING TO 
BRIEF OF INDIVIDUAL PLAINTIFFS-APPELLANTS by placing said copies 
with Bor Air at Los Angeles, California, for guaranteed delivery 
next morning, fully prepaid, addressed as follows:

James W. Howard 
Floyd, Howard & Ware 
The Grant Building, Suite 501 
44 Broad Street, N.W.
Atlanta, Georgia
Peter R. Maier
Appellate Staff, Civil Division 
Room 3129
U.S. Department of Justice 
9th & Pennsylvania 
Washington, DC 20530

Californ
Executed this 30th day of April, 1985, at Los Angeles,

Class-Appellees

CC152#6 16