# Petition — Arriaza v. Crocker National Bank > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1837%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 984 ## Text In the Supreme Co REBAXK, JRCLEPK = OF THE United States Octoser Term, 1978 w.@8-5D6E Virma ArriAzA, CHARLOTTE Hiaarns, KATHARYNE ANNE Ma.voy and Virernra Warp, Petitioners VS. Crocker NaTIonaL Bank, a National Banking Association, Respondent PETITION FOR A WRIT OF CERTIORAR: to the United States Court of Appeals for the Ninth Circuit BarBarRa ASHLEY PHILLIPS Law OFFICES OF BarRBARA ASHLEY PHILLIPs 100 Bush Street, Suite 1301 San Francisco, CA 94104 Telephone: (415) 758-6252 Rosert A. SELIGSON 300 Montgomery Street Suite 825 San Francisco, CA 94104 Telephone: (415) 788-4844 Attorneys for Petitioners. BOWNE-PERNAU WALSH ¢ 1045 SANSOME ST. © S.F.,CA 94111 © (415) 981-7862 SUBJECT INDEX I. The order and judgment below . 1 Il. Jurisdiction eat 2 III. Questions presented for review ...................... 2 IV. Statutes and Rules involved ) ey er 2 3 4 V. Statement of the case VI. Reasons why the petition should he onnted 1. The holding appealed from is contrary to every one of this Court’s decisions of which plaintiffs are aware con- cerning Title VII jurisdictional prerequisits to suit . 4 2. This issue by its nature evades appellate review ..... 5 3. The Court of Appeals misapplied the well-established doctrine of mootness to this class action b- 6 TABLE OF AUTHORITIES CITED Cases Alexander v. Gardner-Denver 415 U.S. 36, 94 S.Ct. 1011 (1974) American Pipe and Construction Co, v. Utah ( saad 414 US. 538, 38 L.Ed.2d 713, 94 S.Ct. 756... Balzarini v. Crocker National Bank, C-76-1971 _ . Budreck vs. Crocker National Bank, F. Supp. (N.D. Call. 1976) 13 PEP Cases O04 ...........:............. Gary vs. Industrial Indemnity Co., .... F.Supp. . (N.D. Calif. 1973) 7 FEP Cases 1973 _. Lipo Jones vs. Intermountain Express, F.Supp. | (N.D. Calif, 1975) 10 FEP Cases 914 .. EG eT leins hove 2 here Ges Levine v. Crocker National Bank, C- 75-2333 a Lewis vs. FMC Corporation, .... F.Supp. (N.D. Calif. 1975) 11 FEP Cases 31 aha Love v. Pullman, 404 U.S. 522, 92 S.Ct. 616, (1972) . McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, F.Supp. (N.D. Calif. 1975) 11 FEP Cases 744 Occidental Life Ins. Co. of Calif. v. EEOC, 432 U.S. 355, cy S.Ct. 2447, 53 L.Ed.2d 402 (1977) Senter v. General Motors Corp., 532 F.2d 51 (6 Cir. 1976) - Sosna v. State of Iowa, 419 U.S. 313, 95 S.Ct. 553, 42 L.Ed. 2d 532 1975) United Aiylines, Inc. v. McDonald, 432 US. 385, 97 S.Ct. 2464 53 L.Ed.2d 423 (1977) . Westerlund vs. Fireman's Fund Insurance Com any, ere F.Supp. (N.D. Calif. 1975) 11 FEP Cases 744... Zubero vs. Memorex, Inc., F.Supp. . (N.D. Calif. 1976 12 FEP Cases 604 Af By og ka eee a 6 > ~~ i 4 | ios) | ~l “1 U1 fo») Or Ol mm D re ii ‘Ssanns wo Aventis Cad In the Supreme Court Rules OF THE Page Federal Rules of Civil Procedure: . Rule 23(b) (2) Cee oe 2 United States Rule 23(b) (3) a | 2 Octoser TERM, 1978 Statutes 28 U.S.C. § 1254(1) . Do AP ey es . 4 ae No. Civil Rights Act of 1964: 42 U.S.C. Sections 2000e-2(a) et seq. : 2,3,4,5 Section 2000e-5(f) hero 5 es ot a Virma Arriaza, CHARLOTTE Hicetns, KaTHARYNE ANNE Matuoy and Vireinta Wasp, Other Authorities Petitioners Report of the House Committee on Education and Labor, H.R. vs. Report No. 92-238, 92 Cong., Ist Session (1971), pp. 12-13 5 Crocker National Bank, a National Banking Association, Respondent PETITION FOR A WRIT OF CERTIORARI to the United States Court of Appeals for the Ninth Circuit I. THE ORDER AND JUDGMENT BELOW The Petitioners Vilma Arriaza, Charlotte Higgins, Katharyne Anne Malloy and Virginia Ward, respectfully pray that a writ of certiorari issue to review the ruling of the order of the United States Court of Appeals for the Ninth Circuit dismissing as moot and denying class certification in the appeals of Vilma Arriaza and Charlotte Higgins. A copy of the order appealed from and of the denial of Appellant’s petition for rehearing and class certification are attached as Appendix A and Appendix B. II. JURISDICTION A. The order of dismissal and denial of class certifi- eation and judgment entered thereon were entered June 8, 1978. The order denying rehearing was entered July 5, 1978. (Appendices A & B) B. Jurisdiction of this Petition is based on 28 U.S.C. § 1254(1). (Appendix C) III. QUESTIONS PRESENTED FOR REVIEW A. Is an appeal by putative class representatives ren- dered moot by their acceptance of the terms of a non- comprehensive District Court settlement of portions of their original action? ( B. If not, can members of the class they purport to represent who have claims surviving the non- comprehensive settlement intervene in the appeal as substi- tute class representatives? IV. STATUTES AND RULES INVOLVED A. The original action in which appeal was taken was grounded upon 42 U.S.C. §$§ 2000e-2(a), et seq. (Civil Rights Act of 1964, as amended). They were dismissed from this ease under 42 U.S.C. § 2000e-5(f). See Appendix D. B. In that action, and in their appeal, petitioners Arriaza and Higgins sought status as class representa- tives pursuant to Rule 23(b)(2) and (b) (3), Federal Rules of Civil Procedure. See Appendix E. 3 V. STATEMENT OF THE CASE Petitioners Arriaza, Higgins, Malloy and Ward were four of ten (10) original named plaintiffs who sought relief from a pattern and practice of sex discrimination in employment at Crocker National Bank on behalf of themselves and others similariy situated in the action Levine v. Crocker National Bank, C-75-2333. This original action was based upon Title VII of the Civil Rights Act of 1964; 42 U.S.C. $$ 2000e-2(a) et seg. (Appendix D). Upon motion, they and five (5) others were dismissed from that action on the ground that: (1) Arriaza had been unable, because of EEOC delays, to secure her right to sue letter at all: and (2) Higgins (and the other plaintiffs dismissed) had failed to wait 180 days following date the EEOC took jurisdiction over her charge before obtaining a right to sue letter. Co-plaintiff Doris Levine remained as the sole plaintiff in the original action because she had waited 180 days from the date the EEOC ‘took jurisdiction of her charge before timely securing her right to sue letter. All of the d..missed plaintiffs except Petitioners Arriaza and Higgins filed a second action, (Balzarini v. Crocker National Bank, C-76-1971) on new right-to-sue letters issued by the EEOC. A motion to dismiss that action, on the ground the second right to sue letters were improperly issued has not been ruled upon, for that action has been stayed since shortly after it was filed. The Balzarini plain- iffs (including petitioners Malloy and Ward) were denied reentry by intervention in the original Levine action. NE 4 On December 29, 1977, the original action was partially settled. A class was finally certified as to claims of dis- crimination in pay and promotion only. The class was de- certified (a class had been certified by stipulation April 1, 1977) in the original Levine action as to all other claims— e.g. termination, hiring, job classification—and class notice with opt-out rights was given. Petitioners Arriaza and Higgins did not opt out of the settlement and neither of them have claims. which survive the settlement. Petitioner Malloy and about one hundred (100) others opted out of the settlement. Their rights depend on the ultimate disposition of the appeal in this action. Petitioner Ward’s termination claim remains outside the settlement (termination claims were excluded). Her rights and those of other terminees depend upon the ultimate disposition of the appeal in this action. VI. REASONS WHY THE PETITION SHOULD BE GRANTED 1. The holding appealed from is contrary to every one of this Court’s decisions of which plaintiffs are aware concerning Title VII jurisdictional prerequisites to suit. The trial court held that despite the Equal Employment Opportunity Commission’s inability to reach the charges filed by petitioners within 180 days, the statute never- theless requires that much time to elapse before the Com- mission could issue valid right-to-sue letters. The sole pur- 5 pose and effect of this ruling is to defeat Congress’ purpose to protect “the aggrieved persons’ option to seek a prompt remedy in the best manner available.” Report of the House Committee on Education and Labor, H.R. Report No. 92-238, 92 Cong., Ist Session (1971), pp. 12-13. The ruling is contrary to every Title VII jurisdictional prerequisite decision this Court has made of which plain- tiffs are aware: e.g. Love v. Pullman, 404 U.S. 522, 92 S.Ct. 616, (1972) (permitting EEOC charge filing to precede state agency filing); Occidental Life Ins. Co. of Calif. v. EEOC, 432 U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402 (1977) (holding EEOC need not bring its action within 180 days) ; McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, (1973) (holding that the absence of an EEOC determina- tion of a particular issue did not prevent a plaintiff from litigating that issue in the district court). The timely filing of a charge and the receipt of and acting upon a Commis- sion’s statutory notice of right to sue are, plaintiffs believe, the only jurisdictional prerequisites. Alexander v. Gardner- Denver, 415 U.S. 36, 47, 94 S.Ct. 1011 (1974). 2. This issue by its nature evades appellate review. No less than six cases testing this technical defense were decided in the Northern District of California in 1975 and 1976 before the decision in the instant case. Four held there was no 180 day waiting requirement; two held there was.* The instant case was the third that held there was. *Cases finding a 180-day wait is not jurisdictional: Lewis v. FMC Corporation, .... F.Supp. .... (N.D. Calif. 1975) 11 FEP Cases 31 acer Bee a suit brought before 180 days had lapsed between plaintiff's filing of the EEOC charge and filing of the 6 The effect of such a challenge upon the litigation and litigants is two-fold: first, plaintiffs must file a new suit on a new right-to-sue letter if they can get one, only to be met by a motion to dismiss (such as is presently under submission against petitioners here) on the ground that the EEOC had no power to issue a second right-to-sue letter, or they may settle. Second, and perhaps more important, aggrieved persons needing court resolution of their discrimination claims will wait the 180 days before requesting a right-to-sue letter. Litigants will not knowingly invite a jurisdictional attack on their complaint, for fear of becoming embroiled in the tortuous appellate process, or possibly losing their rights altogether. Thus, the issue flares up and, if not resolved, becomes de facto law. Congress’ purpose is thwarted by default. 3. The Court of Appeals misapplied the well-established doctrine of mootness to this class action. This Court has already held that the mootness of class representatives’ claims does not moot the issue for purpose of review, at least where the action was certified as class action at the trial court level. Sosna v. State of Iowa, 419 lawsuit would be allowed]; Gary vs. Industrial Indemnity Co., _... F.Supp. .... (N.D. Calif. 1973) 7 FEP Cases 1973 [in an opinion by Judge Zirpoli, holding that there was no jurisdictional bar to actions where the Commission issues right to sue letters prior to the expiration of the 180 day period]; Westerlund vs. Fireman's Fund Insurance Company, .... F.Supp. _ (N.D. Calif. 1975) 11 FEP Cases 744; Zubero vs. Memorex Inc., .... F.Supp. .... (N.D. Calif. 1976) 12 FEP Cases 604. Cases holding a 180-day wait is jurisdictional: Budreck vs. Crocker National Bank, .... F.Supp. .... (N.D. Calif. 1976) 12 FEP Cases 594; Jones vs. Intermountain Express, .... F.Supp. _. (N.D. Calif. 1975) 10 FEP Cases 914. 7 US. 313, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). Moreover, it has held that a live certification is not necessary in order for a member of putative class to take over the class repre- sentation to secure appellate review. See United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977) (holding that a class member could appeal a denial of class certification rendered years before, where the class representative failed to do so.) An action alleged as a class action ts a class action until it has been determined otherwise. American Pipe and Con- struction Co. v. Utah (1974) 414 U.S. 538, 38 L.Ed.2d 713, 94 §.Ct. 756 (so held for purposes of tolling the statute of limitations on class claims). This action was so alleged. Even the appeals of petitioners Arriaza and Higgins were filed “on behalf of others similarly situated.” Courts of Appeal have the power to certify an action as a class action, Senter v. General Motors Corp, 532 F.2d 51, (6th- Cir. 1976) but the Court of Appeals did not recognize that it had the power in this case. In this respect it erred. For the foregoing reasons, a writ of certiorari should issue to review the judgment and opinion of the Ninth Circuit. Dated, September 28, 1978. Respectfully submitted, Barsara ASHLEY PHILLIPS, Rosert A. SEicson, Attorneys for Petitioners. (Appendices Follow) Appendices A, B, C, D and E APPENDIX A UNITED STATES COURT OF APPEALS For the Ninth Circuit Virma ArriazA and Cuar.otte Hicerns, Plaintiff s-Appellants, Doris Levine, et al., Plaintiffs, | No. 76-1712 V. No. 76-1861 Crocker NationaL Bank, a National Banking Association, Defendant-A ppellee. ORDER J [June 8, 1978] Appeal from the United States District Court for the Northern District of California Before: DROWNING and CHOY, Circuit Judges, and *DAVID W. WILLIAMS, District Judge The appeals must be dismissed as moot. It is conceded that because of the settlement approved by the court below, appellants have no personal interest in the outcome of these appeals. If their appeal succeeded and the judgments of dismissal were reversed, appellants would have nothing to litigate in the court below. Nor can the appeal continue with appellants as class representatives. Appellants did not appeal as representatives of a class. They have not been zertified as class representatives. No class had been °Honorable David W. Williams, United States District Judge, Central District of California, sitting by designation. il certified when the appeal was taken. The class certified by the district court subsequent to the appeal consists entirely of persons who accepted the settlement which disposed of appellants’ claims and those of all other members of the class to which appellants belong. Appellants could repre- sent no other class, for they are members of none. See Bazter v. Palmigiano, 425 U.S. 308, 310 n.1 (1976) ; Franks v. Bowman Transportation Co., 424 U.S. 747, 753 (1976) ; Sosna v. Iowa, 419 U.S. 393, 402, 403 (1975). Appellants’ motion that certain other persons who did not participate in the settlement be substituted as appel- lants must be denied. The persons sought to be substituted cannot be treated as appellants in their own right; they failed to appeal within the time fixed by law. Cook & Sons Equipment, Inc. v. Killen, 277 F.2d 607, 609 (9th Cir. 1960). They cannot be treated as class representatives; the class to which they belong has not been certified, and they have not been designated to represent any class. Baater v. Palmi- giano, supra. The motion to substitute is denied. The appeals are dismissed as moot. Appellants’ motion for attorneys’ fees is denied and each party is instructed to bear its own costs. ill APPENDIX B UNITED STATES COURT OF APPEALS For the Ninth Cireuit Virma Arriaza and CHARLOTTE Hicerns, } Plaintiff s-Appellants, Doris Levine, et al., Plaintiffs, | No. 76-1712 v. No. 76-1861 Crocker NationaL Bank, a National Banking Association, ORDER wise aias osuesea [July 5, 1978] Before: BROWNING and CHOY, Circuit Judges, and *DAVID W. WILLIAMS, District Judge Appellants’ petition for rehearing and certification of class is denied. *Honorable David W. Williams, United States District Judge, Central District of California, sitting by designation. lv APPENDIX C 28 U.S.C. § 1254(1) 1254. Courts of appeals; certiorari; appeal; certified questions Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after ren- dition of judgment or decree; APPENDIX D 42 U.S.C. § 2000e-2 2000e-2. Unlawful employment practices—Employer prac- tices (a) It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any indi- vidual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or ap- plicants for employment in any way which would deprive or tend to deprive any individual of employment oportu- nities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. v 42 U.S.C § 2000e-5 (f)(1) If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) or (d) of this section, the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action against any respondent not a government, governmental agency, or political subdivision named in the charge. In the case of a respondent which is a government, govern- mental agency, or political subdivision, if the Commission has been unable to secure from the respondent a concilia- tion agreement acceptable to the Commission, the Commis- sion shall take no further action and shall refer the case to the Attorney General who may bring a civil action against such respondent in the appropriate United States district court. The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission or the Attorney General in a case involving a government, governmental agency, or political subdivision. If a charge filed with the Commission pursuant to sub- section (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section or the Attorney General has not filed a civil action in a case involving a government, governmental agency, or political subdivision, or the Commission has not entered into a conciliation agreement to which the person ag- grieved is a party, the Commission, or the Attorney vi General in a case involving a government, governmental agency, or political subdivision, shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge (A) by the person claiming to be aggrieved or (B) if such charge was filed by a member of the Commission, by any person whom the charge alleges was aggrieved by the alleged unlawful employment prac- tice. Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may author- ize the commencement of the action without the payment of fees, costs, or security. Upon timely application, the court may, in its discretion, permit the Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, to intervene in such civil action upon certification that the case is of general public importance. Upon request, the court may, in its discretion, stay further proceedings for not more than sixty days pending the termination of State or local proceedings described in subsections (c) or (d) of this section or further efforts of the Commission to obtain voluntary compliance. (2) Whenever a charge is filed with the Commission and the Commission concludes on the basis of a preliminary investigation that prompt judicial action is necessary to carry out the purposes of this Act, the Commission, or the Attorney General in a case involving a government, gov- ernmental agency, or political subdivision, may bring an action for appropriate temporary or preliminary relief pending final disposition of such charge. Any temporary vii restraining order or other order granting preliminary or temporary relief shall be issued in accordance with rule 65 of the Federal Rules of Civil Procedure. It shall be the duty of a court having jurisdiction over proceedings under this section to assign cases for hearing at the earliest practicable date and to cause such cases to be in every way expedited. (3) Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of action brought under this subchapter. Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employ- ment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his princi- pal office. For purposes of sections 1404 and 1406 of Title 28, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought. (4) It shall be the duty of the chief judge of the district (or in his absence, the acting chief judge) in which the case is pending immediaieiy to designate a judge in such district to hear and determine the case. In the event that ro judge in the district is available to hear and determire the case, the chief judge of the district, or the acting chief judge, as the case may be, shall certify this fact to the chief viii judge of the circuit (or in his absence, the acting chief judge) who shall then designate a district or circuit judge of the circuit to hear and determine the case. (5) It shall be the duty of the judge designated pur- suant to this subsection to assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited. If such judge has not scheduled the ease for trial within one hundred and twenty days after issue has been joined, that judge may appoint a master pursuant to rule 53 of the Federal Rules of Civil Procedure. APPENDIX E FEDERAL RULES OF CIVIL PROCEDURE Rule 23. Class Actions. (b) Class Actions Maintainable. An action may be main- tained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or (3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: {A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent ix and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1837%3A1. Public record. Not legal advice.