Petition — Estate of Scott v. University of Delaware

Supreme Court, U., & ~-

FILED |

SEP 12 i979

aa ol

a Mic .

IN THE WAR RODAK, JR., CLERK

Supreme Court of the Anited States

October Term, 1979

No. 79-4 06

THE ESTATE OF NOLVERT P. SCOTT, JR.,

Individually and on behalf of all

other persons similarly situated,

Petitioner,

v.

THE UNIVERSITY OF DELAWARE, et al.

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BADER, DORSEY & KRESHTOOL

JOHN S. GRADY

THOMAS STEPHEN NEUBERGER

314 S. State Street

Dover, Delaware 19901

Attorneys for Petitioner.

PAGE

EROS SRE Fa is or ii

EEE TO te GP l

ee en has a uo Sh eed eeacnreecccrs 2

SSSI PO EET 2

Statutes and Rules Involved ...................005. 3

ca eae cbs ccs vescesecesees 3

ae. Soot s tmaeviaual Claim. .............scescees. 3

Nee a cas agbeecsssccucseces 5

Reasons For Granting The Writ ................... 8

I. The Court of Appeals Has Applied An

II.

Il.

TABLE OF CONTENTS

Erroneous Standard Of Proof For

Establishing A Prima Facie Case In The

Context Of A Higher Education Suit .....

The Opinion Of The Court of Appeals

Allowing The Review Of The Class Cer-

tification Without A Cross-Appeal Is In.

Direct Conflict With Massachusetts Mut.

Life Ins. Co. V. Ludwig, 426 U.S. 479

Ea oe aT POE. ark a tie ais

There Now Exists A Split Among The Cir-

cuits With Respect To When A Cross-Appeal

Is Necessary And This Court Should Resolve

I ea, Sow aeeewts cae

ii

IV. The Decision Of The Court Of Appeals

Raises The Important Federal Question Of

Whether East Texas Motor Freight uv.

Rodriguez, 431 U.S. 395 (1977), Has

Inherently Overruled All Those Circuit And

Supreme Court Decisions Which Have Per-

mitted A Discharged Employee To Represent

Prospective Employees In A Class Action

6 a a cas ka aes Che rabeneeeus seems

TABLE OF CASES AND OTHER CITATIONS

Cases.

Adams v. Richardson, 356 F. Supp. 92,

affd and modified, 480 F.2d 1159

Ces, a Re SN a ok pn kta evens conccccuc's

Arlington Heights v. Metropolitan Housing

Corp., 420° US... 262 (3077) oni cisceccccccccccess

Arnold’s Hofbrau, Inc. v. George Hyman

Construction Co., Inc., 480 F. 2d 1145,

ee ee SNS 5% nl ae Wa ee PAG Pek bE eee be eens

Barnett v. W. T. Grant Company, 518 F.2d

Be CE, PPPIAE be eke ons c cNdvevecevccdsece

Board of Trustees v. Sweeney, US.

Se, Rate OE COT eas chats andes cdeiseesuwan

Brown v. Board of Education, 347 US.

Se Ais be sds Gea Oks Kaw Ae HI RRC 08 ds dene

Castaneda v. Partida, 430 U.S. 482 (1977)..........

es ee

ili

Chicago, Burlington & Quincy Railroad

Company v. Ready Mixed Concrete Co.,

487 F.2d 1263 (8th Cir. 1973) ................... 12

Chouinard v. Chouinard, 568 F.2d 430

Ca ie teel cc ih ok see 6a sie et soe « 12

Dandridge v. Williams, 397 U.S. 471 (1970)........ 10

East Texas Motor Freight v. Rodriguez,

ei fk. RE ee rarer 13, 14, 15

FEA v. Algonquin SNG, Inc. 426 U.S. 548

PREECE Chine dee ewe dee hawe hs as6s00 Kann 10

Franks v. Bowman, 424 U.S. 747 (1976) ........... 15

Furnco Construction Corp. v. Waters,

ee es a ee ek A win ous oo.e a 8, 9

Gomez v. Wilson, 477 F.2d 411 (D.C.Cir.

ee eee vA Wllcgisn Nise 44.40 460500 0aa 11

Hadfield v. Ryan Equip. Co. 456 F.2d

IS TN nos ota aw dine aa keee snes ad 11

Hill v. Western Electric Company, Inc.

a ee, OP A BUTE occ me nner cccccccsnce 14

Johnson v. Georgia Highway Express, Inc.,

BEY We Bee i BP on vnccescccsceccces 14

Joseph v. Norman’s Health Club, Inc.,

532 F.2d 86 (8th Cir. 1976).................. i. 39

Massachusetts Mut. Life Ins. Co. v. Ludwig,

ee se cha whe ees Gees 9, 10

McDonald v. Santa Fe Trail Transp. Co.,

ee eo a kk we een oes 8, 9

McDonnell Douglas Corp. v. Green, 411

ae eka ei awin bemnsd >a ys'es 8, 9

Mills v. Electric Auto-Lite Co., 396 US.

Ns 4:1) ergs birds 6 6 has Khas 800% 04 O08 10

Morley Construction Co. v. Maryland

Casualty Co., 300 U.S. 185 (1937)............. 9, 12

iv

Ortega Cabrera v. Municipality of Bayamon,

GES F.De Oh: Chek Ve Meee hee ence atk veins es 12

Parker v. University of Delaware, 75 A.2d

po ee reer eee ee 5

Securities and Exchange Commission v.

Fifth Avenue Coach Lines, Inc., 435

je 8 eet SR rere 12

Swarb v. Lennox, 405 U.S. 191 (1972)............. 10

Teamsters v. United States, 431 U.S. 324

(ROUTE oc. s vnne ences au ao ee cee 9

Tiedeman v. Chicago, Milwaukee, St. Paul

& Pac. R.R., 513 F.2d 1267 (8th Cir.

DOGG. « oo 0 00s cep miiees cues cae nen a eee en < me

Tug Raven v. Trexler, 419 F.2d 536 (4th Cir.

BOGE noo 0000 ccs ob thn ore Reeeeeeeheaeneeaes 13

United States v. American Railway Express

Co., BEB US. Ge Ce cick eke koe sess ccnacees 10

United States v. United States Steel

Corporation, 520 F.2d 1043 (5th Cir. 1975)

cert. denied 429 U.S. 817 (1976)................. 12

Washington v. Davis, 426 U.S. 229 (1976)........... 9

Wetzel v. Liberty Mutual Insurance Co.,

508 F.2d 239 (3rd Cir. 1975) cert. denied

431 UG. FEC. Ghee 6 os becenecntsase case ceres 8, 13

Federal Statutes and Rules

2 USC. sie. oe 2

96 VBL. BIDOR.. ow. cccsoaak ac ee 3

96 USC. e008... 2. sos ccs cass ea ee 3

“2 USG. a. WC ae 3, 6

a URC, MED... ee ee 3, 6

a USE sS... ii ce 3, 6

v

Federal Rules of Appellate Procedure

SEE SORA EY Sec a 3

Federal Rules of Civil Procedure

Rule 23

IN THE

Supreme Court of the Gnited States

October Term, 1979

No.

THE ESTATE OF NOLVERT P. SCOTT, JR.,

Individually and on behalf of all

other persons similarly situated,

Petitioner,

v

THE UNIVERSITY OF DELAWARE, et ai.

Respondents.

PFTITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

To the Chief Justice of the United States and the Associate

Justices of the Supreme Court of the United States:

The petitioner, The Estate of Nolvert P. Scott, Jr., in-

dividually and on behalf of the class it represents, prays

that a writ of certiorari issue to review and reverse the

judgment and opinion of the United States Court of Ap-

peals for the Third Circuit entered in this proceeding on

June 6, 1979.

OPINIONS BELOW.

The opinion of the United States District court for the

District of Delaware by The Honorable Walter K.

2

Stapleton certifying the class is reported at 68 F.R.D. 606

(D.Del. Sept. 11, 1975) (Appendix A). The opinion on the

motion to decertify the class is unreported officially, but

may be found at 16 F.E.P. Cases 737 (D.Del. Sept. 14, 1976)

(Appendix B). The decision of the United States District

Court on the merits is reported at 455 F.Supp. 1102 (D.Del.

Aug. 16, 1978) (Appendix C).

The opinion of the United States Court of Appeals for the

Third Circuit is not yet reported officially, but may be

found at 19 F.E.P. Cases 1730 (3d Cir. June 6, 1979)(Ap-

pendix D). The judgment in the United States Court of Ap-

peals for the Third Circuit was entered on June 6, 1979.

(Appendix I) A petition for a rehearing was denied on July

3, 1979. (Appendix J)

JURISDICTION.

The petition for a rehearing was denied on July 3, 1979.

The jurisdiction of this court is invoked pursuant to 28

U.S.C. §1254(1).

QUESTIONS PRESENTED.

1. Has the court of appeals misconstrued Dr. Scott’s

burden in its finding that he failed to make out a prima

facie case of intentional race discrimination?

2. Was the propriety of the class certification properly

before the court of appeals in view of the fact that the

University did not take a cross-appeal and did not raise the

issue of class certification until the time of the filing of its

answering brief?

3. Does a non-renewed university sociology professor

have such an inherent conflict with a class of faculty mem-

bers which includes prospective applicants that the cer-

tification of such a class constitutes an abuse of discretion?

3

STATUTES AND RULES INVOLVED.

This case involved Rules 4(a) and 10(b) of the Federal

Rules of Appellate Procedure and Rule 23 of the Federal

Rules of Civil Procedure.

It also involves 28 U.S.C. §2106 and 42 U.S.C.§§1981,

1983 and 2000e et seq. The above-stated rules and statutes

are found in Appendix K. FR

STATEMENT.

On September 11, 1975, the District Court certified this

suit as a class action. (Appendix F) Jurisdiction was based

on 28 U.S.C. $1343. The court found that the plaintiff, who

was allegedly a victim of discriminatory working conditions

and contract termination, was “seeking to represent all

blacks who have been or in the future will be, discriminated

against with respect to a number of employment practices.”

(A4) After the University had essentially completed its

discovery, it filed a motion to decertify the class. At that

time the deposition of Nolvert Scott had been taken and the

plaintiff had answered a substantial set of interrogatories.

(Docket Entries, Ct. of Appeals Appendix 3-5a). The court

on September 16, 1976, refused to decertify the class. (Ap-

pendix G). Trial began on April 4, 1977.

Dr. Scott’s Individual Claim

University regulations require that a professor whose

contract is up for renewal be judged using the general

criteria of scholarship, teaching, and service. Each depart-

ment also is required to weight each of these criteria and to

specify in writing the types of evidence that will be used in

the evaluation of each of the three general criteria. The

members of a department vote on the renewals and their

recommendation is sent to the administration. Toward the

end of the second year of petitioner’s threé-year contract, in

4

May of 1973, he was non-renewed because his performance

in teaching and scholarship allegedly was substandard. Dr.

Scott continued working until June, 1974.

The evidence is undisputed that the renewal vote of the

sociology department violated University and departmental

regulations. Scholarship, teaching and service were not

weighted. (In fact, little credit was given Dr. Scott for ser-

vice). Furthermore, student evaluations, not designated as

evidence for evaluating “teaching”, were used to Dr. Scott’s

detriment. (Testimony of Chairman Scarpitti, Ct. of Ap-

peals Appendix, 502-504a) The record also reflects that he

was the first black hired in the sociology department and

this was only after prodding by the University president.

He then was the first person ever non-renewed by that

department. Dr. Scott was referred to as “window

dressing” by one of the members of the department. He

additionally was the subject of racial hate mail by students

and he was falsely accused of and investigated for public

drunkenness on campus, yet no administrative action was

taken to determine who his accusers were or to reprimand

them.

Drs. Alfred McClung Lee and James Blackwell, experts

in higher education, testified that the evaluation of Dr.

Scott was unreliable. Dr. Lee also said that Dr. Scott was a

qualified teacher. Dr. Magoon, the faculty moderator of

the student government’s teacher evaluations, recounted

that the student evaluations were unreliable and that

Scott’s teaching was found adequate by him in a controlled

study which he performed.

The performance of Dr. Scott was compared to that of

Drs. Nohara, of the sociology department, who was renewed

in 1970; Kepka of the educational foundations department,

who was renewed in 1973 and 1974; Black of the English

department, who was renewed in 1971 and 1973; and Red-

dington, who was renewed in 1969. The performance of all

these professors was comparable to or worse than Dr. Scott.

5

It was admitted by the sociology department chairman that

Nohara in 1970 was judged inadequate in teaching,

scholarship, and research. The district court acknowledged

that Black, Reddington and Kepka “were given significan-

tly greater opportunities for re-evaluation” and were

renewed despite comparable or poorer performance records

than Dr. Scott.

Dr. Scott also relied in his prima facie case upon a

wealth of evidence showing the University’s historical and

present mistreatment of blacks (See pp 5-6, infra) (For a

complete record with transcript references for all the above

see pp 21-30 of the Brief of Appellant in the court of

appeals).

The district court held that Dr. Scott had not established

a “prima facie case.” (A74) It minimized or ignored most of

the evidence and ruled that Dr. Scott was not comparable

to Nohara because he was hired in 1965 when scholarship

was not emphasized. It also ruled that Reddington, Kepka

and Black were “simply different” because they were from

different University departments. The court of appeals con-

curred and held that Scott had not made out a prima facie

case. (A75)

The Class Claim

In support of plaintiff's class-wide prima class facie case,

there was introduced into the record evidence demon-

strating that the University’s employment practices ex-

cluded blacks by law until 1950. The record reflects that

even after Parker v. University of Delaware, 75 A.2d 225

(Del.Ch. 1950), when then Vice Chancellor Seitz held that

the University of Delaware was discriminating in ad-

missions against black students, and Brown v. Board of

Education, 347 U.S. 483 (1954), the University in 1965 still

had no black faculty members or administrators and only a

handful of black students on campus. Even as late as 1971,

there were only .6% blacks on the faculty. At the time of

6

trial, there were 1.47% blacks as faculty (12 out of 818),

3.3% as undergraduates and 1.8% as graduate students. Of

65 part-time faculty, there were no blacks in 1976.

The record identifies 55 black applicants since 1972. At

least 11 of them were rejected, allegedly because they

lacked certain degree requirements. Of the 100 hires im-

mediately before trial, only one or two were black. Plaintiff

also introduced expert testimony and documentary

evidence of how the hiring process tended to perpetuate the

almost all-white faculty.

Non-statistical expert iesiimony by Drs. Blackwell and

Lee demonstrated how poorly the University of Delaware

has done in eradicating race discrimination when compared

to eighteen other states. As compared to the ten states

found to discriminate agaist blacks in higher education in

Adams v. Richardson, 356 F.Supp. 92 aff'd and modified,

480 F.2d 1159 (D.C.Cir. 1973) (en banc), the University of

Delaware compared poorly in the number of black faculty

members on the staff, last in the number of tenured faculty,

and last in the number of graduate students (For a com-

plete record with transcript references, see pp 2-21 of the

Brief of Appellant in the court of appeals).

Despite all this evidence the district court held that

plaintiff had not demonstrated prima facie evidence of in-

tentional (§1983) or non-purposeful (§1981) race

discrimination. The court then held that even though plain-

tiff had made out a case of race discrimination pursuant to

42 U.S.C. §2000e, defendants had rebutted the prima facie

showing.

An appeal was taken by the plaintiff and he identified

the issues on appeal pursuant to Rule 10(b) of the Federal

Rules of Appellate Procedure. The question of the class cer-

tification was not an issue identified by either party. Fur-

thermore, defendants did not cross-appeal. The defendants

did urge in their answering brief on appeal that the

judgment below should be affirmed “because the class

<a?

7

should never have been certified.” At oral argument in the

court of appeals the question of class certification was

raised. However, the court, upon realizing there had been

no cross-appeal, discontinued questioning concerning the

propriety of the class. The majority opinion of the court of

appeals held that the issue of whether or not the class cer-

tification was proper or not could be entertained even

though there was no cross-appeal and that in its opinion

there had been an abuse of discretion in certifying the class.

The court stated that Noivert Scott’s interests were

“necessarily in conflict with those of applicants for

positions on the University faculty” because he held a

“Doctor of Philosophy degree when he assumed his

position” and he received a premium over the salary nor-

mally paid by the University to new Ph.D’s. Dr. Scott had

taught for eight years prior to receiving his Ph.D in 1971.

The court also stated that Dr. Scott conceded he was not

discriminated against in hiring.

Dr. Scott was only qualified to teach in sociology, one of

41 departments in the University. Since there were only ten

members in the department and there is no evidence that it

was planning to hire anyone, except to replace Dr. Scott,

any conflict he would have with potential University ap-

plicants would have to be de minimus. Dr. Scott disagrees

with the finding of the court of appeals that he does not

“claim that he was discriminated against by the Univer-

sity’s hiring policies.” (A83) Testimony was introduced that

he was considered “window dressing.” Furthermore, he

has complained throughout that he was only considered a

token black. Although Dr. Scott himself was hired, he never

conceded that he suffered no ill effects from the dis-

criminatory hiring policies at the University. Dr. Scott

also objects to the finding of the court of appeals that he

asserted the Ph.D in his own favor in seeking relief on his

individual disparate treatment claim. There is no record

support for this conclusion.

8

The court of appeals decision created for the first time

two subclasses, a subclass of faculty applicants and a

second subclass of faculty employees. The court concluded

that Nolvert Scott was not an adequate representative of

the applicant class and that there was _ insufficient

numeresity for the faculty subclass. Judge Adams con-

curred with the judgment of the court in a separate opinion

stating that (1) a cross-appeal should never be necessary in

this kind of case and (2) in his view the court is not retren-

ching from Wetzel v. Liberty Mutual Insurance Co., 508

F.2d 239 (3rd Cir. 1975) cert. denied 421 U.S. 1011 (1975).

The court then remanded the case to the district court with

“instructions that an order be entered decertifying the class

action claims.” (A89) U-

REASONS FOR GRANTING THE WRIT.

I. The Court of Appeals Has Applied an Erroneous

Standard of Proof for Establishing a Prima Facie

Case in the Context of a Higher Education Suit.

This court has attempted to ennunciate the kind of

evidence necessary to establish prima facie in-

tentional race discrimination. See McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973); McDonald v. Santa Fe

Trail Transp. Co., 427 U.S. 273 (1976); Furnco Con-

struction Corp. v. Waters, 438 U.S. 567, (1978); Board

of Trustees v. Sweeney, U.S. — ,58 L.Ed.2d 216 (1978).

There has never been any suggestion that a prima facie case

is limited to a certain schema. In fact, in McDonnell

Douglas Corp. v. Green, supra, at 802, ftn. 13, a hiring case,

this court specifically held that there could be models of

discrimination other than that suggested in Green. In the

instant case, where Dr. Scott was terminated by the failure

of the University to renew his contract, the court of appeals

limited itself to the McDonnell Douglas Corp. v. Green

9

model and held that there was no prima facie showing of

race discrimination.

Dr. Scott demonstrated in support of his prima facie

showing that: (1) he is black, (2) he was non-renewed

despite his qualifications (see McDonnell Douglas Corp. v.

Green, supra.), (3) he was the subject of overt racial slurs

made to him by faculty and students, (4) there were

procedural irregularities in the handling of his renewal (see

Arlington Heights v. Metropolitan Housing Corp., 429 U.S.

252, 267 (1977)), (5) the voting process was subjective with

an opportunity to discriminate (see Castaneda v. Partida,

430 U.S. 482, 497 (1977)), (6) there is a history of race

discrimination at the University (see Castaneda v. Partida,

supra, at 495, Furnco Construction Corp. v. Waters, supra,

at 580, Teamsters v. United States, 431 U.S. 324, 339

(1977)), and (7) as compared to one faculty member in his

department and three other members in similar depart-

ments, he was disciplined more severely than other

similarly-situated non-blacks (see McDonald v. Santa Fe

Trail Transp. Co., supra. at 283, ftn. 11). Considering ‘the

totality of the relevant facts’, Washington v. Davis, 426

U.S. 229, 242 (1976) the court of appeals misconstrued the

prima facie burden of Dr. Scott. He at least made out such

a case. The opinion below then is in conflict with all this

Court’s cases dealing with the extent and kind of evidence

necessary to show prima facie race discrimination. For this

reason the petition should be granted.

II. The Opinion of the Court of Appeals for the Third

Circuit Allowing the Review of the Class Cer-

tification Without a Cross-Appeal Is in Direct

Conflict with Massachusetts Mut. Life Ins. Co. v.

Ludwig, 426 U.S. 479 (1976).

In Massachusetts Mut. Life Ins. Co. v. Ludwig, 426 U.S.

479 (1976), this court confirmed the “inveterate and cer-

tain” rule of Morley Construction Co. v. Maryland Casualty

10

Co., 300 U.S. 185, 191 (1937), that a cross-appeal must be

taken by the appellee when he wishes to lessen the rights of

his adversary, but a cross-appeal need not be taken when

he merely wishes to urge other reasons for the affirmation

of the judgment below. The court in Massachusetts Mut.

Life Ins. Co. was applying this rule to the appellate practice

of the Seventh Circuit. The court, in quoting from United

States v. American Railway Express Co., 265 U.S. 425, 435

(1924) said:

“It is true that a party who does not appeal from a

final decree of the trial court cannot be heard in op-

position thereto when the case is brought here by the

appeal of the adverse party. In other words, the ap-

pellee may not attack the decree with a view either to

enlarging his own rights thereunder or of lessening the

rights of his adversary, whether what he seeks is to

correct an error or to supplement the decree with

respect to a matter not dealt with below. . .”

This authority was brought to the attention of the Third

Circuit in appellant’s reply brief, but it was ignored by the

court of appeals. For the Third Circuit to decertify the

class, sua sponte,' without a cross appeal, was not only

erroneous, but contrary to settled law.

There is also a long line of cases standing for the

proposition that the Supreme Court will not entertain an

issue not appealed from. See Dandridge v. Williams, 397

U.S. 471, 475-76 n. 6 (1970); Mills v. Electric Auto-Lite Co.,

396 U.S. 375, 381, n. 4 (1970); FEA v. Algonquin SNG, Inc.,

426 U.S. 548, 560 n. 11 (1975); Swarb v. Lennox, 405 U.S.

1 The University in its brief argued that the class should not have

been certified, but only so in support of its argument to affirm the

decision of the district court. It did not request that the class be decer-

tified.

11

191, 201 (1972). In the concurring opinion by Judge Adams

in this case, he acknowledged that the practice of the Third

Circuit is in variance with that of the Supreme Court (A92)

n. 9). This practice is squarely in conflict with the clearly

enunciated doctrine of this Court and for this reason the

petition should be granted.

III. There Now Exists a Split Among the Circuits

With Respect to When a Cross-Appeal is

Necessary and This Court Should Resolve the

Conflict.

The Scott decision is in direct conflict with Joseph v. Nor-

man’s Health Club, Inc., 532 F.2d 86, 88, ftn. 2 (8th Cir.

1976). In that case the court of appeals held that an ap-

pellee cannot challenge a class certification of a truth-in-

lending claim when it did not file a cross-appeal.

“Defendant Boston Securities seeks to challenge on

appeal the district court’s certification of the suits as

class actions on the question of liability. We need not

reach this question, however, for Boston has not filed a

cross-appeal. An Appellee cannot attack a judgment

either to enlarge his rights thereunder or to lessen the

rights of his adversary unless he files a cross-appeal.

Tiedman v. Chicago, Milwaukee, St. Paul & Pac. R.R.,

513 F.2d 1267, 1272 (8th Cir. 1975); Hadfield v. Ryan

Equip. Co., 456 F.2d 1218, 1222 (8th Cir. 1972).”

A careful examination of the circuit opinions throughout

the country makes it apparent that there is no uniformity

among circuit courts of appeal as to when a cross-appeal is

necessary and when it is not necessary. The D. C. Circuit in

Gomez v. Wilson, 477 F.2d 411, 414 n. 10 (D.C.Cir. 1973)

stated that “unappealed portions of a district court order

are final” and therefore the court of appeals is “without

jurisdiction to reconsider them.” This decision, however, is

inconsistent with Arnold’s Hofbrau, Inc. v. George Hyman

12

Construction Co., Inc., 480 F.2d 1145, 1150 (D.C.Cir. 1973)

which says that a cross-appeal is not jurisdictional. The

Second Circuit, in Securities And Exchange Commission v.

Fifth Avenue Coach Lines, Inc., 435 F.2d 510, 516 (2nd Cir.

1970), an opinion written by Judge Adams sitting by

designation from the Third Circuit, has held that “since the

SEC did not cross-appeal from Judge McLean’s order, our

power is limited by the doctrine expressed by Justice Car-

doso’s opinion in Morley Construction Co. v. Maryland

Casualty Co., 300 U.S. 185 (1937).” Morley Construction

Co. held that a court of appeals has no right to review a

lower court’s decision when there is no cross-appeal. The

First Circuit in Ortega Cabrera v. Municipality of

Bayamon, 562 F.2d 91, 97, n. 3 (1st Cir. 1977), stated that

“it is elementary that failure to file a notice of appeal

precludes an appellee from attacking the judgment.” The

Fifth Circuit in Chouinard v. Chouinard, 568 F.2d 430 (5th

Cir. 1978), stated that an appellee who wishes to secure an

alteration or modification of judgment must cross-appeal.

However, in United States v. United States Steel Cor-

poration, 520 F.2d 1043, 1052 (5th Cir. 1975), cert. denied

429 U.S. 817 (1976), it held that under special cir-

cumstances a court of appeals may consider an issue even

though there is no cross-appeal. The Eighth Circuit which,

as a rule, refuses to consider changes of a judgment order

where there has been no cross-appeal, Joseph v. Norman’s

Health Club, Inc., supra. did, however, in Chicago,

Burlington & Quincy Railroad Company v. Ready Mixed

Concrete Co., 487 F.2d 1263, 1268, n. 5 (8th Cir. 1973), alter

a judgment in favor of appellee without a cross-appeal

where at oral argument it appeared that both counsel had

made an arithmatical error which became the basis of the

judgment below.

There is also a line of cases, to which the Third Circuit

adheres, which states that the requirement of a cross-

appeal is merely a “rule of practice’ which may be

13

disregarded in the interest of justice. Tug Raven v. Trexler,

419 F.2d 536, 548 (4th Cir. 1969) cert. denied 398 U.S. 938

(1970).

In short, the courts of appeals have not enunciated a con-

sistent policy with respect to the necessity of cross appeals.

This case raises the issue squarely of when a cross-appeal is

necessary.

IV. The Decision of the Court of Appeals Raises the

Important Federal Question of Whether Last

Texas Motor Freight v. Rodriguez, 431 U.S. 395

(1977), Has Inherently Overruled All Those Cir-

cuit and Supreme Court Decisions Which Have

Permitted a Discharged Employee to Represent

Prospective Employees in a Class Action Suit.

In the instant case Nolvert Scott sought to represent a

class of black faculty members, present, past and future, at

the University of Delaware who had been discriminated

against on the basis of race. It appeared prior to the

decision of the circuit court that Wetzel v. Liberty Mutual

Insurance Company, 508 F.2d 239 (3rd Cir. 1975), cert.

denied 421 U.S. 1011 (1975), was controlling and that a

district court judge had the discretion to certify a class in

such a case. The court of appeals, however, distinguished

Wetzel relying upon East Texas Motor Freight v.

Rodriguez, 431 U.S. 395 (1977), and held that there was

such a necessary conflict between a discharged faculty

member and the prospective applicants of the class that it

would be an abuse of discretion for a trial court to certify

such a class. The rationale for distinguishing this case from

Wetzel v. Liberty Mutual is explained in footnote 21 (A84).

“In that case, Liberty Mutual objected to class cer-

tification on the ground that the former employees,

‘who have voluntarily severed their employment prior

to suit cannot adequately represent members of the

14

class who are presently employed by the company.’ 508

F.2d at 247. (emphasis supplied). Liberty Mutual never

raised, and the court apparently never considered, the

issue of whether current employees can represent a

class of prospective employees. Certainly the interests

of the former employees in Wetzel, who had volun-

tarily left their employment, would not be adversely

affected by potential competition from prospective em-

ployees. Scott, in contrast, would have been in sharp

competition for contract renewal and tenure with ap-

plicants who might be offered faculty positions.”

The court went on to say “it is doubtful after East Texas

Motor Freight that he (Scott) can lead a class challenging

hiring practices.” (A86).

This is also exactly what the Fourth Circuit said in Hill

v. Western Electric Company, Inc., 596 F.2d 99 (4th Cir.

1979). There the court held that East Texas Motor Freight

v. Rodriguez limits Barnett v. W.T. Grant Company, 518

F.2d 543 (4th Cir. 1975), which had previously held a

discharged employee could represent a class including

potential hires. In Hill the district court certified a class of

blacks who were discriminated against in hiring, job assign-

ment and promotions. Named plaintiffs were six black

males and females who had all been employed by Western

Electric. In light of Rodriguez the court of appeals held

that the named plaintiffs were not adequate representatives

of the class because their jobs were “so different in kind

from that of people who were denied any employment that

the plaintiffs may not properly maintain an action for

redress of alleged discrimination in hiring.” Jd., at 102.

The state of the law is that pre-East Texas decisions,

such as Johnson v. Georgia Highway Express, Inc., 417

}

15

F.2d 1122 (5th Cir. 1969) and Franks v. Bowman,’ 424 US.

747 (1976), appear to allow a former employee to represent

a class which includes prospective employees, while post-

East Texas decisions do not.

It is now unclear whether or not East Texas v. Rodriguez

has implicitly overruled Franks. That question should be

resolved by this court.

2 In Franks v. Bowman, this court affirmed the judgment on behalf

of a class where the intervenor, Mr. Lee, a discharged employee, was

permitted to represent a class of prospective and present employees.

16 17

Vv. CONCLUSION AFFIDAVIT OF MAILING

For the foregoing reasons, this court should grant the STATE OF DELAWARE

petition for certiorari to review the judgment of the Third

Circuit. COUNTY OF NEW CASTLE SS.

Respectfully submitted, BE IT REMEMBERED that on this day of

B September, 1979, before me, the Subscriber, a Notary

ADER, DORSEY & KRESHTOOL Public for the State and County aforesaid, personally ap-

peared » who,

By: being duly sworn according to law, did depose and say that

JOHN S. GRADY she mailed today, by regular mail, postage prepaid, three

copies of the within PETITION FOR WRIT OF CER-

TIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT, and AP-

By: ;

THOMAS STEPHEN NEUBERGER PENDIX, to the following attorneys:

John P. Sinclair, Esq. Robert E. Williams, Esq.

314 S. State Street Potter, Anderson & Corroon McGuiness & Williams

Dover, Delaware 19901 Delaware Trust Building 1747 Pennsylvania Avenue, N.W.

P. O. Box 951 Washington, D. C. 20006

Wilmington, Delaware 19899

Dated: September _, 1979 Nathaniel R. Jones, Esq.

N.A.A.C.P.

1790 Broadway

New York, New York 10019

SWORN TO AND SUBSCRIBED before me the day and

year aforesaid.

Notary Public