Reply — Franks v. Bowman Transportation Co.

Supreme Court, U. S

kil LED

SEP 30 1975

IN THE

vy f ik. CUreK |

ll

Supreme Court of the Anited ‘State

October Term, 1974

No. 74-728

Haro_p FRANKS AND JOHNNIE LEE,

Petitioners,

V.

BowMAN TRANSPORTATION CoMPANY, INC., e¢ al.

Memorandum of Respondent

United Steelworkers of America, AFL-CIO

In Opposition to Suggestion of Mootiess

BERNARD KLEIMAN Micuae. H. GorresMAN

Cart FRANKEL E.uiot BrepHorFr

Five Gateway Center Rosert M. WEINBERG

Pittsburgh, Pennsylvania 15222 1000 Connecticut Avenue, N.W.

James W. Dorsey Washington, D.C. 20036

100 Peachtree Street, N.W. Jerome A. Cooper

Atlanta, Georgia 30303 Joun C. FALKENBERRY

409 North 21st Street

Birmingham, Alabama 35203

Attorneys for USWA.

a

>

|

IN THE

Supreme Court of the Gnited States

October Term, 1974

No. 74-728

| HaroLtp FRANKS AND JOHNNIE LEE,

Petitioners,

V.

BowMAN TRANSPORTATION ComMPANy, INC., et al.

Memorandum of Respondent

United Steelworkers of America, AFL-CIO

In Opposition to Suggestion of Mootness

Respondent Bowman Transportation, Inc. suggests that

this case has become moot. We disagree.

This case was brought on a complaint alleging racially

discriminatory employment practices in violation of Title

VII of the Civil Rights Act of 1964. It was properly certi-

fied as a class action by the district court. Intervenor Lee

was named to represent a sub-class consisting of black ap-

plicants for positions as over-the-road drivers. The claim

asserted on behalf of the members cf this sub-class was that

they had been denied such positions on the basis of race.

After the full litigation of this claim, the district court

found that the members of this sub-class had in fact been

2

victims of racial discrimination in hiring. As part of the

remedy for this discrimination, the district court ordered

that the members of this sub-class be given immediate

priority in hiring. The district court refused, however, to

order that, upon being hired, these members of the sub-class

be given seniority back to the date they were denied em-

ployment on the basis of their race. This denial of seniority

relief was appealed to the Fifth Circuit, but to no avail.

The issue has been brought to this Court. As we now show,

though the named sub-class representative, Lee, has subse-

quent to the class certification lost his personal stake in the

resolution of this issue, the case is not moot.

The question of seniority relief remains “real and im-

mediate” for those sub-class meinbers now employed by

respondent Bowman. Put succinctly, they have suffered a

wrong; they have reasonably relied upon this lawsuit to

provide full vindication for that wrong; to abort this case

now would prolong the period of their suffering, might well

jeopardize their ability ever to obtain their full measure of

relief, and at least would result in redundant litigation.

The decisions of this Court, as we read them, do not call

for such a senselesss result.

1. This case as it now stands does not involve “‘conjec-

tural” or “hypothetical” issues or people. Cf. O'Shea v.

Littleton, 414 U.S. 488, 494 (1974); Golden v. Zwickler,

394 U.S. 103, 109-110 (1969). It involves employees who

have in the course of this very litigation been adjudged

victims of racial discrimination, and who now have a real

stake in securing a remedy for that discrimination.

When the instant lawsuit was filed and then certified as

a class action, these employees (then rejected applicants) ,

as class members, were entitled to rely upon it as the vehicle

for asserting their claims of employment discrimination.

Their stake in this litigation was from the beginning quite

substantial: If the suit were successful, they would reap

a ee

a

3

substantial benefits; if it were lost, they would be bound by

that result. Rule 23(c)(3) of the Federal Rules of Civil

Procedure. Precisely because of their interest, the suit could

not have been settled or dismissed by the named litigants

without approval of the court. Rule 23(e).

In fact, the suit was at least partially successful: ‘The

members of the sub-class were found to be victims of un-

lawful racial discrimination, were afforded the opportunity

to secure jobs, and were awarded back-pay. However, they

were refused by the lower courts—and seek in this Court—

the additional seniority which they would have had but for

the unlawful discrimination: their “rightful place.” The

significance of this additional seniority for each employee

in the class is discussed at length in our brief on the merits

at 24-29. As each day passes without that relief, these em-

ployees continue to suffer the effects of the past discrimina-

tion in ways that would not fully be compensated by an

eventual award of back-pay: they must work the less de-

sirable jobs to which they are relegated by their inferior

seniority status.

Having come this far in the litigation, it is now suggested

that these employees must start over if they want to claim

the full relief to which they are entitled. Would they have

to run the gamut of filing new charges with the Equal Em-

ployment Opportunity Commission? Would they confront

statute of limitations problems? Even if they surmounted

these hurdles, they would confront a dispositive precedent

of the Fifth Circuit that bars the granting of the seniority

relief they seek. Ultimately, only this Court can resolve

their claim. Yet, though the class members are presently

suffering the effects of their seniority disadvantage, Bow-

man would have them begin anew and wait several years

more before securing relief.

2. Bowman’s suggestion that this Court may not now

resolve this claim relies on the mechanical application here

4

of a rule fashioned by this Court to apply to a distinct type

of case. Thus, Bowman cites the following language in this

Court’s decision in Board of School Commissioners of In-

dianapolis v. Jacobs, 420 U.S. 128, 129 (1975):

“. . . [I]t seems clear that a case or controversy no

longer exists between the named plaintiffs and the peti-

tioners with respect to the validity of the rules at issue.

The case is therefore moot unless it was duly certified

as a Class action pursuant to Fed. Rule Civ. Proc. 23,

a controversy still exists between petitioners and the

present members of the class, and the issue in contro-

versy is such that it is capable of repetition yet evading

review.”

Bowman relies on the portion of that quotation apparently

requiring that the issue be “capable of repetition yet evad-

ing review.” This “element,” we are told, is not met here.

We disagree that this “element” has application here.

Since the language relied upon by Bowman was dictum

in Jacobs, we pass to a consideration of Sosna v. Iowa, 419

U.S. 393 (1975), from whence this language came. Sosna

involved a challenge to a state statute requiring the peti-

tioner in a divorce action to have been a resident of Iowa

for one year immediately proceeding the filing of the action.

The named plaintiff, Sosna, had filed for a divorce in state

court, but her petition was denied for failure to satisfy the

residency requirement. She then filed a complaint in fed-

eral court challenging the constitutionality of that require-

ment, and seeking both declaratory and injunctive relief.

She brought the case as a class action on behalf of unnamed

and unidentifiable class members “who desire to initiate

actions for dissolution of marriage or legal separation, and

who are barred from doing so by the one-year duration

residency requirement. .. .” Id. at 397. This class was duly

certified. A three-judge district court upheld the constitu-

tionality of the statute. Subsequent to the district court de-

5

cision but before the case reached this Court, Sosna satisfied

the residency requirement (and in fact obtained a divorce

elsewhere). This Court then considered the question of

mootness.

The Court began its analysis by finding that,

“When the District Court certified the propriety of

the class action, the class of unnamed persons described

in the certification acquired a legal status separate

from the interest asserted by appellant.” Jd. at 399.

This status, the Court held, is sufficient for the main-

tenance of a “case or controversy” within the meaning of

Article III of the Constitution, provided a “live contro-

versy” exists between the class members and a named de-

fendant at the time of review by this Court:

“Our conclusion that this case is not moot in no way

detracts from the firmly established requirement that

the judicial power of Art. III courts extends only to

‘cases and controversies’ specified in that Article. There

must not only be a named plaintiff who has such a case

or controversy at the time the complaint is filed, and

at the time the class action is certified by the District

Court pursuant to Rule 23, but there must be a live

controversy at the time this Court reviews the case. . . .

The controversy may exist, however, between a named

defendant and a member of the class represented by

the named plaintiff, even though the claim of the

named plaintiff has become moot.” Jd. at 402. (foot-

notes omitted )

See also, Jd. at 401, n. 9.

To this point, the analysis of Sosna fits and is dispositive

of the instant case. But the Court there also had to face a

problem not presented here. Once Sosna dropped out of

the case, there was in a meaningful sense no real plaintiff

left—only a group of unidentifiable short term residents of

Iowa who would “desire” to bring a divorce action but for

6

the residency requirement. In a real sense, this Court was

asked to review the constitutionality of a state statute at

large. On the other hand, given the length of the residency

requirement, the issue would be incapable of review by

this Court if the case were held moot. It was to confront

this dilemma that the Court established the requirement

cited by Bowman.

But this added requirement of Sosna has no application

here. It is without meaning here to ask whether the issue

is “capable of repetition”; the controversy here never

went away. The same controversy remains for the same

identifia ble group of class members as when the case began.

Far from an advisory opinion, or at-large review, this case

has plaintiffs, and we know who they are.

Our analysis is confirmed by the Sosna Court’s citation,

with approval, of cases in a posture similar to ours, where

courts of appeals have ruled that class actions involving the

rights of identifiable groups of employees should not be

dismissed as moot merely because the claim of the named

plaintiff is no longer extant. Jd. at 401, n. 10; Moss v. Lane

Company, Inc., 471 F.2d 852 (CA 4 1973); Roberts v.

Union Co., 487 F.2d 387 (CA 6 1973); Cf. Albermarle

Paper Co. v. Moody, —— U.S. ——, 43 U.S.L.W. 4881,

4883, n. 8 (1975).

Respectfully submitted,

BERNARD KLEIMAN Micuaet H. GorresMan

Cari FRANKEL E.uiot BrepHorF

Five Gateway Center Rosert M. WEINBERG

Pittsburgh, Pennsylvania 15222 1000 Connecticut Avenue, N.W.

James W. Dorsey Washington, D.C. 20036

100 Peachtree Street, N.W. Jerome A. Cooper

Atlanta, Georgia 30303 Joun C. FaALKENBERRY

409 North 21st Street

Birmingham, Alabama 35203

Attorneys for USWA.