# Petition — Western Electric Co. v. Hill

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0735%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1982
- **Citation:** 459 U.S. 981

## Text

OcTOBER TERM, 1982

WESTERN ELECTRIC COMPANY, ING.,
Petitioner,
v.

OLLIE T. HILL, et al.,
Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

ZACHARY D. FASMAN,
Counsel of Record

Micnas. J. ALBUM
WALD, HaRKRADER & Ross
1800 Nineteenth Street, N.W.
Washington, D.C. 20086
(202) 828.1200

Counsel for Petitioner

Of Counsel:

Groror V. Cook, Esquire
LAWRENCE M. Josern, Esquire
Western Electric Company, Inc.
222 Broadway
New York, New York 10088

Joe Ramirez, Esquire
Weatern Electric Company, Inc.
Post Office Box 20046
Greensboro, North Carolina 27420

September 7, 1982

WiLeon « Brae Paintine Go., Inc, . 768.0006 . Wasnineron, 0.C, 80001

QUESTIONS PRESENTED

1, Whether the named plaintiffs’ failure to satisfy the
requirements of Rule 23 of the Federal Rules of Civil
Procedure for commonality, typicality, membership in the
class and adequacy of representation creates merely
“technical” or “formal” defects which are cured by the
named plaintiffs’ success on the merits of claims they had
no authority to litigate, so as to permit reinstatement of
erroneously entered class findings upon post-remand in-
tervention by allegedly qualified new class representatives?

2. Whether the Court of Appeals erred, as a matter of
law, in instructing the district court to consider reinstat-
ing findings of fact and conclusions of law that were
erroneously made and were vacated for want of proper
jurisdiction in a prior appeal in the same litigation?

8. Whether the determination of a district court that
permissive intervention by alleged applicants for em-
ployment, five years after the litigation began, would have
substantially delayed further proceedings to the prejudice
of the original parties to the litigation, may be set aside
solely because it was contrary to the “general experience”
of the Court of Appeals?

(i)

PARTIES INVOLVED
Petitioner Western Electric Company, Ine.“

Named plaintiffs Ollie T. Hill, John W. Ward, Charles R.
Merriweather, Edward H. Minatee, Minnie M.
Marable, and Mary E. Carter.

The class of all black persons and all female persons
employed by Western Electric Company, Inc. at its
facilities in Arlington, Virginia.

Proposed Intervenors Betty Bailey, Victor L. Furr, III,
Darlene Johnson, and the proposed class of all blacks
and all women who unsuccessfully sought employ-
ment at the Petitioner's facilities in Arlington, Vir-

ginia.

„Western Electric Company, Incorporated is a wholly-owned
subsidiary of American Telephone and Telegraph Company. Sub-
sidiaries of Western Electric are Manufacturers’ Junction Railway
Company, Nassau Recycle Corporation, Sandia Corporation, Tele-
type Corporation and Western Electric Company, Limited (Lon-
don). Fifty percent of the voting securities of Bell Telephone
Laboratories is owned by Western Electric with the remaining
fifty percent owned by AT&T, Western Electric also is the owner
of forty-four percent of Goldstar Semiconductor Lied., a joint
venture.

Other subsidiaries and affiliates of American Telephone and
Telegraph Company are set forth below

New England Telephone and Telegraph Company
New York Telephone Company
Empire City Subway Company ( Limited)
New Jersey Bell Telephone Company
The Bell Telephone Company of Pennaylvania
The Diamond State Telephone Company
The Chesapeake and Potomac Telephone Company
The Chesapeake and Potomac Telephone Company of Maryland
The Chesapeake and Potomac Telephon» Company of Virginia

The Cheasapeake and Potomac Telephone Company
of West Virginia

Southern Bell Telephone and Telegraph Company

South Central Bell Telephone Company

The Ohio Bell Telephone Company

Michigan Bell Telephone Company

Indiana Bell Telephone Company, Incorporated

Wiaconain Telephone Company

Inos Bell Telephone Company

Northweatern Bell Telephone Company

Southwestern Bell Telephone Company
Southwestern Redevelopment Corporation

The Mountain States Telephone and Telegraph Company
Malheur Home Telephone Company

Pacific Northwest Bell Telephone Company

The Pacific Telephone and Telegraph Company
Bell Telephone Company of Nevada

Eastern Telephone and Telegraph Company

Transoceanic Communications, Incorporaced

Transoceanic Cable Ship Company, Inc.

Transpacific Communications, Incorporated

196 Broadway Corporation

AT&T International Inc.
AT&T International United Kingdom— Limited
American Bell Ine, Services
Western Electric International, Incorporated

AT&T International Far East, Limited

Advanced Mobile Phone Service, Ine.

American Bell Inc.

American Telephone and Telegraph Overseas Finance N. V.
The Southern New England Telephone Company
Cincinnati Bell, Ine.

TABLE OF CONTENTS

Reasons for Granting the Writ

I, THE DECISION BELOW CONFLICTS WITH
THE HOLDINGS OF THIS COURT IN RAST
TEXAS MOTOR FREIGHT SYSTEM, INC.
v. RODRIGUBZ AND GENERAL TELE-
PHONE CO, OF THE SOUTHWHST v, FAL-
CON, CONFLICTS WITH DECISIONS OF
SEVERAL CIRCUITS, AND PRESENTS AN
UNRESOLVED CONFLICT WITHIN THE
i |

A. The Decision Below Seriously Misconstrues
Rodrigues and Contradicta Falcon

B. The Decision Below Conflicta with Estab.
lished Authority in Other Circuits ................

C. The Decision Below Furthers an Unresolved
Division Within the Fourth Circuit That
Should Be Addressed By This Court

D. The Practical Effect of the Opinion Below
Is to Permit Spurious Class Actions and
Unrestrained Litigation That Will Tax Judi-
cial Resources in All Areas of Substantive
ehe. xx

1. The Opinion Below Countenances Spuri-
re

2. The Opinion Below Will Result in Un-
restrained Claas Litigation

(v)

1 „ — —

vi

TABLE OF CONTENTS—Continued
Page

II. THE DECISION BELOW PRESENTS NOVEL
AND FUNDAMENTAL QUESTIONS CON-
CERNING THE JURISDICTION OF FED-
ERAL COURTS AND CONFLICTS WITH
OTHER DECISIONS OF THIS COURT AND
DECISIONS IN OTHER CIRCUITS ............... 20

A. The Decision Below Conflicts with the Hold-
Ire 20

Throughout the Circuits .............. — 28

III. THIS CASE PRESENTS CRITICAL QUES-
TIONS REGARDING THE RESPONSIBIL-
ITY AND AUTHORITY OF TRIAL COURTS
TO SUPERVISE CLASS ACTION LITIGA-
TION AND CONFLICTS WITH PRINCIPLES
REPEATEDLY SET FORTH BY THIS
COURT AND EVERY ORUrr r 24

a Ri EES A ERAN TE ak Ae 8 27
Appendix

vii

TABLE OF AUTHORITIES
Cases: Page

Abron v. Black & Decker (U.S.) Inc., 654 F.2d
ENS TT SE ae 10, 14
Alabama Hospital Association v. United States,
656 F.2d 606 (Ct. Cl. 1981), cert. denied, 102

RE SE ES SE 23
Alaniz v. Tillie Lewis Foods, 572 F.2d 657 (9th

Cir.) , cert. denied, 489 U.S. 887 (1979) 25
Allee v. Medrano, 416 U.S. 802 (1974) 21
Amalgamated Sugar Co. v. Bergland, 664 F.2d

ee 23
American Pipe & Construction Co. v. Utah, 414

. 16
Bailey v. Patterson, 369 U.S. 31 (1962) ee 22
Bank of Montreal v. Olafsson, 648 F. 2d 1078 (6th

Cir.) , cert. denied, 102 8. Ct. 641 (19817 23
Barnett v. W. T. Grant Co., 618 F.2d 548 (4th Cir.

AI 3

Black Faculty Association of Mesa Community
College v. San Diego College District, 664 F. 2d
r A 13

Blum v. Yaretsky, 102 8. Ct. 2777 (19827 21

Brown v. Eckerd Drugs, Inc., 663 F.2d 1268 (4th
Cir. 1981), vacated and remanded, 102 8. Ct.

. 8, 10, 11, 14, 17, 27
CAB v. American Air Transport, Inc., 344 U.S. 4

EEE TET LES = a AED 8
Chisholm v. United States Postal Service, 665 F. 2d

, . 14

City & County of Denver v. Matsch, 686 F. 2d 804
(10th Cir. 1980), cert. denied, 101 8. Ct. 3114
FF 24
City of Los Angeles v. Lyons, 458 U.S. 1308
(1981), cert. granted, 102 8. Ct. 1426 (1982) 21
Culbreath v. Dukakis, 680 F.2d 16 (ist Cir.
r 25
Delaware Valley Citizens’ Council for Clean Air v.
Pennsylvania, 674 F.2d 970 (8d Cir. 1982) 25
De Nafo v. Finch, 486 F. 2d 787 (8d Cir. 1971)...... 24

viii
TABLE OF AUTHORITIES—Continued

Page
Deposit Guaranty National Bank v. Roper, 445
US. 326 (1980) 17
East Texas Motor Freight System, Inc. v. Rod-
riguez, 481 U.S. 896 (1977) 3, 6, 7, 8, 9, 18, 14, 19
EEOC v. International Longshoremen’s Associa-
tion, 628 F.2d 1064 (5th Cir. 1980), cert. de-
Ey | 20
EEOC v. United Air Lines, Inc., 515 F.2d 946 (7th
RR ae Se 25
Risen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) 15, 17,
18

Feldman v. Simkins Industries, Inc., 679 F.2d

J | fF T 22
Finn v. American Fire & Casualty Co., 207 F.2d

118 (5th Cir. 1958), cert. denied, 347 U.S. 912

. 24
Firestone Tire & Rubber Co. v. Risjord, 449 US.

ATS, A eee» 22, 24
General Telephone Co. of the Southwest v. Falcon,

102 S. Ct. 2864 (19822 7, 8, 9, 10, 18, 19
Gurmankin v. Costanzo, 626 F.2d 1182 (3d Cir.

RR SR SS SE See. 18
Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981) .......... 15
Hi-Craft Clothing Co. v. NLRB, 660 F.2d 910 (3d

11 „ 23

Hill v. Western Electric Co., 596 F.2d 99 (4th
Cir.) , cert. denied, 444 U.S. 929 (1979) 8, 5, 6, 14, 18,

19, 20

H. L. v. Matheson, 450 U.S. 398 (198177 22
Hydaburg Cooperative Association v. United

States, 667 F.2d 64 (Ct. Cl. 198177): 23
Insurance Corp. of Ireland, Ltd. v. Compagnie des

Bauzites de Guinee, 102 8. Ct. 2099 (1982) ........ 22
International Brotherhood of Teamsters v. United

States, 481 US. 824 (19777) x
Inwood Laboratories, Inc. v. Ives Laboratories,

Ine., 108 8. Ct. 2182 (1962) .................................. 26

Kremer v. Chemical Construction Corp., 102 S. Ct.
1888 (1982) 17

ix
TABLE OF AUTHORITIES—Continued

Page
Machella v. Cardenas, 653 F.2d 923 (5th Cir.
Oe 22
McClain v. Wagner Electric Corp., 550 F.2¢ 1115
rr SON ad SS 25
Michigan Association for Retarded Citizens v.
Smith, 657 F.2d 102 (6th Cir. 1981) ................ 25

Miner v. Gillette Co., 87 Ill. 2d 7, 428 N.E.2d 478
(1981), cert. granted, 102 S. Ct. 1767 (1982) 20

Mullaney v. Anderson, 324 U.S. 415 (1952) .......... 24
NAACP v. New York, 418 U.S. 345 (1973) 25
Nader v. Volpe, 466 F.2d 261 (D.C. Cir. 1972 23
O'Shea v. Littleton, 414 US. 488 (1974) 22
Payne v. Travenol Laboratories, Inc., 673 F.2d 798

r ß 11,12
Philadelphia Electric Co. v. Anaconda American

Brass Co., 48 F. R. D. 462 (E.D. Pa. 19668) 16

Piper Aircraft Co. v. Reyno, 102 S. Ct. 252 (1981) . 26
Pullman-Standard v. Swint, 102 8. Ct. 1781

Ar 26
Schlesinger v. Reservists Committee to Stop the
. . — 9. 22

Simmons v. Brown, 611 F.2d 65 (4th Cir. 1979) 23
Simon v. Eastern Kentucky Welfare Rights Or-
ganization, 426 U.S. 26 (1976) —............. 22
Simpson v. Motorists Mutual Insurance Co., 494
F.2d 850 (7th Cir.), cert. denied, 419 U.S. 901
cB SEL CIAO. RO, ea 23
Sprogis v. United Air Lines, Inc., 444 F.2d 1194
(Ith Cir.) , cert. denied, 404 U.S. 991 (1971) 16
Stallworth v. Monsanto Co., 568 F.2d 257 (5th Cir.

rr 25
Stotts v. Memphis Fire Department, 679 F.2d 579
. 25
Teras Department of Community Affairs v. Bur-
dine, 450 U.S. 248 (198177 19
Troy State University v. Dickey, 402 F.2d 515
ieee. 23

Underwriters National Assurance Co. v. North
Carolina Life & Accident & Health Insurance
Guaranty Association, 102 8. Ct. 1857 (1982) 22

TABLE OF AUTHORITIES—Continued

Page
United Air Lines, Inc. v. Evans, 481 U.S. 558
— ee me 8
United States v. Allegheny-Ludlum Industries,
Inc., 558 F.2d 461 (5th Cir. 1977), cert. denied,
rr 25
United States v. Louisiana, 33 Fed. R. Serv. 2d
Dre ae 25
United States v. United States Smelting Refining
E Mining Co., 389 U.S. 186 (1950) 20
United States ex rel. Robinson v. Johnston, 316
CE . x
United States Parole Commission v. Geraghty,
445 U.S. 388 (1980) — 20, 28
Valley Forge Christian College v. Americans
United for Separation of Church & State, Inc.,
RE ES 21
Wade v. Goldschmidt, 673 F.2d 182 (7th Cir.
1 25
Warth v. Seldin, 422 U.S. 490 (1975) ae SS 22
Washington Association for Retarded Citizens v.
Thomas, 38 Fed. R. Serv. 2d 177 (9th Cir.
1981) 25
Statutes:
T 20, 21, 22, 24
Civil Rights Act of 1870, 42 U.S.C. § 1911 2
Civil Rights Act of 1964, Title VII, 42 U.S.C.
$§ 2000e et e een 2
r RE ea „
28 U.S.C. § 1843 (4) 2
Miscellaneous :
Federal Rules of Civil Procedure
I a passim
Rule 23 (a) 5, 6, 9, 22
Rule 24 (b) 25, 26
Advisory Committee’s Note to the 1966 Amend-
ments to Rule 23, 39 F.R.D. 69 (1966) 16

xi
TABLE OF AUTHORITIES—-Continued

Page
C. Wright and A. Miller, Federal Practice and
Procedure (1972)
EEE EE Ae Sk A 22
ERE SE a Ey ae 25
r 25
Rules of the Supreme Court
Rule 17.1(a) = EE 15, 20
rr 11

R. Stern & E. Gressman, Supreme Court Practice
r Ss ARIE Ee SRS 8,14

INTHE -
Supreme Court of the Anited States

OCTOBER TERM, 1982

No.

WESTERN ELECTRIC COMPANY, INC.,
* Petitioner,

OLLIE T. HILL, et al.,
Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

Petitioner Western Electric Company, Inc. respectfully
prays that a writ of certiorari issue to review the judg-
ment and opinion of the Court of Appeals for the Fourth
Circuit entered on March 1, 1982.

OPINIONS BELOW

The opinion of the Court of Appeals dated March 1,
1982, is reported at 672 F.2d 381 (1982), and is repro-
duced at App. la-37a. The order entered on May 28,
1982, denying rehearing en bane by a vote of 6-4, is set
out at App. 39a. The opinion of the district court in this

matter is not reported, and is reproduced at Appendix

40a-41a.
JURISDICTIONAL STATEMENT

The judgment of the Court of Appeals was entered on
March 1, 1982. App. 38a. A petition for rehearing, and
a suggestion for rehearing en banc, was timely filed, and
was denied, over the dissent of four of the ten circuit
judges, on May 28, 1982. App. 39a. On August 12, 1982,

by order of Chief Justice Burger, the time for filing this
petition was extended to September 7, 1982. Jurisdiction
of this Court rests on 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED

The justiciability requirement of Article III of the United
States Constitution and relevant portions of Rules 23 and
24 of the Federal Rules of Civil Procedure are set forth
at App. 43a-44a.

STATEMENT OF THE CASE

This lawsuit was instituted more than seven years ago,
on May 14, 1975. The named plaintiffs ' were six present
and former employees of petitioner Western Electric Com-
pany, Inc., (“Western” or “Western Electric”) who
worked at two separate facilities in Arlington, Virginia.
The complaint was filed as a class action on behalf of
present and former employees and rejected applicants,
even though none of the named plaintiffs had been rejected
for employment by Western Electric. The complaint al-
leged race and sex discrimination in hiring, job assign-
ments, and promotions at the two Arlington facilities.“

At a class certification hearing on October 31, 1975,
based upon Western’s arguments and the express repre-
sentations by the named plaintiffs that none had ever
been a rejected applicant, the district court certified a
class that excluded rejected applicants. On November 14,
1975, without hearing further evidence or conducting a
“rigorous analysis” of Rule 23’s requirements, the district
court sua sponte reversed itself and certified a class of
black and female persons that included rejected appli-

1 Because there are two groups of respondents in this case, they
are referred to by their status in the case (i.e., either as named
plaintiffs” or “intervenors”) rather than as “respondents.”

2 The action was brought under 42 U.S.C. § 1981 and Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and
jurisdiction was premised on 28 U.S.C. §1843(4° and 42 U.S.C.
§ 2000e-5(f) (3).

canta.’ After a three-day trial on the merits in February
1976, the district court issued a memorandum opinion
sustaining claims of discrimination in hiring, promotion,
and job assignments.

On appeal, the Fourth Circuit unanimously reversed
the class certification entered by the district court and
vacated the findings of discrimination in hiring. 596
F. 2d 99, 101-02, cert, denied, 444 U.S, 929 (1979) (“Hill
I"). Relying on Fast Texas Motor Freight System, Ine.
v. Rodrigues, 481 U.S. 895 (1977), the court held that
the interests of the named plaintiffs were so different
from the interests of rejected applicants “that the named
plaintiffs [could] not properly maintain an action for
redress of alleged discrimination in hiring.” 596 F.2d
at 102, The hiring findings were vacated because certifi-
cation of the class to include applicants “was in error,”
id., and the district court had “improperly considered” the
hiring claims raised by the employee plaintiffs, Id. at
101. The court did not reach the merits of the hiring
issues, As to those employee claims that were properly
raised in the litigation, the Fourth Circuit reversed vir-
tually all of the findings of discrimination in employ-
ment entered by the district court. Id. at 102-07.

On January 17, 1980, more than nine months after the
Fourth Circuit's decision in Hill J and nearly five years

In a letter to counsel, the district court explained that its reversal
Was based on a “closer reading” of Barnett v. W. T. Grant Co,, 518
F.2d Bag (4th Cir, 1976). On appeal in Hill J, as discussed below,
the Fourth Circuit determined that the district court erred by con-
struing Barnett too broadly, and overruled Barnet? as inconsistent
with the decision of this Court in Bast Texas Motor Freight System,
Ine. v. Rodrigues, 481 U.S, 396 (1977).

* The named plaintiffs petitioned the Fourth Circuit for a rehear-
ing en bane, arguing, inter alia, that rehearing was warranted be-
cause the panel in Hill] failed to order that the record on hiring be
held open to allow for post-remand intervention. This petition was
denied without opinion on May 29, 1979. Plaintiffs’ petition to this
Court for a writ of certiorari was denied on October 20, 1979. 444
U.S. 989 (1979).

4

after the lawsuit began, three alleged applicants moved
for permissive intervention in this lawsuit.’ These ap-
plicants, represented by counsel for the original named
plaintiffs, sought both certification as named representa-
tives of a class of rejected applicants and reinstatement
of the vacated hiring findings. After briefing and oral
argument, the district court denied their motion. The
district court held that the motion to intervene was
untimely, and further found that the proposed interven-
tion would unduly delay the litigation and prejudice the
original parties. The district court determined that, in the
circumstances of the case, it would be impractica! to con-
sider the intervenors’ claims while simultaneously pro-
ceeding with the remedial phase of the original case

Thereafter, the named plaintiffs and Western negoti-
ated a consent decree settling all remaining matters with
regard to present and former employees, The district
court approved and entered the consent decree after a full
hearing. No settlement of the hiring claims was reached,
and both the named plaintiffs and the would-be inter-
venors appealed from the district court’s decision denying
intervention. On December 30, 1981, the district court
entered a final order dismissing all claims and ending the
litigation, with the exception of matters then on appeal
before the Fourth Circuit.

On March 1, 1982, almost seven years after this litiga-
tion commenced, three years after the findings of hiring
discrimination were vacated, and three montis after all
claims raised by the named plaintiffs on behalf of the
class they were entitled to represent were dismissed with
prejudice, a new panel of the Fourth Circuit, over the
lengthy dissent of Judge Widener, vacated the interven-

One of the purported intervenors alleged that she sought work
at one of Western's Arlington facilities in 1972 and 1978. The other
two purported intervenors alleged that they first sought work with
Petitioner in 1979, more than three years after the trial on the
— at a different Western facility located in Landover, Mary

tion decision of the district court and remanded the case
for further proceedings. 672 F.2d 881 (1982) (“Hill
II"), App. la-87a.

Judge Phillips, writing for himself and District Judge
Williams sitting by designation, first rejected the trial
court’s ruling that the motion for permissive interven-
tion was untimely, and that intervention was impractical
and would prejudice the rights of the existing litigants.“
The majority opinion then held that the district court, in
determining the propriety of permissive intervention, had
failed to consider judicial economies that could be gen-
erated through intervention and reinstatement of the
unreviewed class findings of hiring discrimination that
had been vacated in Hill J. 672 F.2d 387, App. 9a."

According to the majority, reinstatement of the vacated
findings was possible because the holding in Hill ] “was
based entirely upon the formal lack of sufficient identity
of interests between any class representatives and the
non-hired members of the class.” 672 F.2d at 391, App.
15a-16a (emphasis added), This “formal” lack of iden-
tity, according to the majority, created only a “technical”
lack of adequate representation under Rule 23 (a) (4).
Id. at 389, App. 12a. Throughout its opinion, the
majority stressed that this “technical” flaw was over-

*The majority opinion nonetheless recognized that additional
litigation, delays, and prejudice would result from intervention,
see 672 F.2d at 386-87, App. Ta-Ba, but concluded that such pro-
judice “was given greater weight [by the district court) than
general experience warrants.” Id. at 387, App. 8a (emphasis
added). In dissent, Judge Widener argued against reversal, on
such theoretical grounds, of “an experienced trial judge who is
intimately familiar with five years of extended litigation.” 7d.
at 392, App. 19a.

The majority in Hill J, like the court in Hil J, did not review
the merits of the original hiring findings in considering the rein-
statement issue. The reinstatement inquiry thus hinges upon find-

come by the named plaintiffs’ victory on the merits of
the hiring issues, which allegedly proved that applicants
were adequately represented during the litigation, The
majority never addressed the commonality or typicality
requirements of Rule 23(a) (2) or (a) (8), nor the more
general Rule 23 requirement enunciated in Rodriguez that
the named plaintiffs must be members of the class they
seek to represent, nor did the court explain how pur-
ported success on the merits might cure these fundamental
defects, Rather, the majority held that so long as class
representatives (unqualified under Hill ] and Rodriguez)
prevail on the merits of overly broad class claims, funda-
mental defects in class composition and representation
are only “formal” or “technical” matters, and findings
previously vacated as outside the scope of the litigation
can be reinstated through intervention of new class
representatives. Judge Widener dissented from the ma-
jority opinion, concluding that it “trivialize[d) both
Hill I and Rodriguez by [its] necessary implication that
class composition is of little or no importance in Title
VII litigation.” 672 F.2d at 397, App. 28a,

REASONS FOR GRANTING THE WRIT

I, THE DECISION BELOW CONFLICTS WITH THE
HOLDINGS OF THIS COURT IN BAST TEXAS
MOTOR FREIGHT SYSTEM, INC. v. RODRIGUEZ
AND GENERAL TELEPHONE CO. OF THE SOUTH-
WEST v. FALCON, CONFLICTS WITH DECISIONS
OF SEVERAL CIRCUITS, AND PRESENTS AN
UNRESOLVED CONFLICT WITHIN THE FOURTH
CIRCUIT.

The critical flaw in the decision below, and the most
important reason why this Court should grant this writ,
is the panel’s holding that the lack of applicants among
the named plaintiffs in this lawsuit created only a “tech-
nical” or “formal” defect in class composition and repre-
sentation. In arriving at this conclusion, the court below
completely ignored three vital factors—commonality,
typicality, and membership by the named plaintiffs in

7

the class—that are called into question where, as here,
none of the named plaintiffs suffered the same injury as,
or were members of, the class they sought to represent.
By ignoring these defects and improperly characterizing
the error in the original trial solely as a matter of
inadequate representation, the majority below was able
to find that all “technical” defects in ciass composition
and representation were cured through the success of
the named plaintiffs on the merits of the hiring claims,
and that the unreviewed prior hiring findings might be
reinstated. The possibility of reinstatement, and the
judicial economy the majority below envisioned as flow-
ing therefrom, is the linchpin of the Fourth Circuit's
ruling that the lower court erred in denying intervention,
and is the primary focus of the remand instructions."

The panel reached this decision without the benefit of
this Court’s ruling in General Telephone Co, of the
Southwest v. Falcon, 102 8. Ct. 2864 (1982) and by mis-
construing the holding of Hast Teras Motor Freight Sys-
tem, Ino. v. Rodriguez, 481 U.S. 396 (1977). The opinion
below is in direct conflict with these holdings, as well as
the holdings of at least three circuit courts (discussed
infra at pp. 11-18) on this issue.

*672 F.2d at 387-92, App. 15a-17a. Because the opinion below
plainly found that the possibility of reinstatement was a vital factor
not properly considered by the district court, and which had to
he decided on remand in order to determine the propriety of grant-
ing intervention, this case is now ripe for review by this Court.
No subsequent proceedings in the lower courts can rectify this
fundamental error of law by the Fourth Circuit, as this error is
the very cause of all further action in this case, Had the court
below properly applied established law, as discussed infra, it would
have ruled that reinstatement of the hiring findings was improper
and thus would have had no basis for overturning the district court
or ordering the convoluted inquiry now required on remand, This
key error underlies all further proceedings in this matter, cannot
be remedied by the courta below, and should be rectified by this
Court now.

Falcon was decided approximately three months after the deci-
sion in this case.

The holding in this case also presents a further ex-
ample of the unresolved conflict within the Fourth Cir-
cult regarding the proper requirements for clase litiga-
tion, Last term, in light of this conflict and this Court's
decision in Falcon, this Court granted certiorari in Brown
v. Eckerd Drugs, Inc. and vacated and remanded that case
for further consideration in light of Falcon. 102 8. Ct.
2952 (1982), vacating and remanding 668 F.2d 1268
(4th Cir. 1981). The present case is a sister case to
Brown and rests on precisely the same doctrinal footing.
This Court should grant certiorari in this case and en-
tertain full argument, or, as in Brown, vacate and remand
for further consideration in light of Falcon.“

A. The Decision Below Seriously Misconstrues Rodri-
quez and Contradicts Falcon.

In Hast Teras Motor Freight System, Inc, v. Rodri-
pues, and in the recent holding in General Telephone Co.
of the Southwest v. Falcon, this Court exercised its super-
visory power to insure that employment discrimination
class actions are maintained only by named plaintiffs who
are members of a proper class, defined in strict accordance

If this Court vacates and remands this case, petitioner suggests
that because of the continuing internal conflict within the Fourth
Cireuit, it would be appropriate and desirable that the remand be
directed before the circuit en bane, See, .., CAB v. American
Air Transport, Ine, 944 U.S, 4, 6 (1962); United States ex rel,
Robinaon v. Johnston, 316 U.S, 649 (1942) (per curiam); R. Stern
& E. Gressman, Supreme Court Practice 366 (6th ed. 1978).

" Rodriguez was one of three cases decided on the same day
which, taken together, clarified and simplified several aspects of
clase action proceedings under Title VII. The other two cases in
this trilogy were International Brotherhood of Teamatera v. United
States, 431 U.S, 924 (1977), and United Air Lines, Ine. v. Bvana,
431 U.S, 668 (1977). As discussed infra at 19-20, the practical effect
of the opinion below is to circumvent the standards set forth in this
trilogy.

with all of the prerequisites of Rule 28. The holding in
Rodriguez thus stated that named plaintiffs who are not
members of the class they seek to represent do not “ ‘pos-
sess the same interest and suffer the same injury’ as the
class members... [and] simply [are] not eligible to rep-
resent a class of persons who did allegedly suffer injury.”
431 U.S. at 408-04 (quoting Schlesinger v. Reservists Com-
mittee to Stop the War, 418 U.S, 208, 216 (1974)). And
in Falcon, Justice Stevens, writing for the Court, held that
present and former employees cannot maintain class liti-
gation on behalr of rejected applicants without establish-
ing “after a rigorous analysis, that the prerequisites of
Rule 28(a) have been satisfied.” 102 8. Ct. at 28738,
This Court in Falcon based its ruling on the commonality
and typicality requirements of Rule 28(a)(2) and (a)
(3), and distinguished the interests they serve from the
adequacy requirement of Rule 23 (a) (4). Moreover, Jus-
tice Stevens explicitly rejected the argument that suc-
cess by the named plaintiff could “bridge (the) gap“ and
establish commonality and typicality for class claims as
well. Id. at 2871-72.

The majority opinion below stands in irreconcilable
conflict with the holding in Rodriguez that named plain-
tiffs must be members of the class they seek to represent.
None of the named plaintiffs in this case was a member
of the class of rejected applicants, yet the majority
opinion in Hill II found reinstatement possible without
even mentioning this fatal flaw. The holding below even
more clearly conflicts with this Court's ruling in Falcon.
The claims of the employee-plaintiffs in this case, like the
claims of the plaintiff in Falcon, were directed at discrim-
inatory treatment of employees and lacked any “typicality
and commonality relationship” with the hiring claims
premised on disparate impact upon applicants. As with
class membership, the panel opinion sanctioned the possi-
bility of reinstatement without even addressing these two
key concerns.

well as this Court’s statement in Rodriguez
careful attention to the requirements of Fed. Rule
Civ. Prac. 23 remains . . indispensable. 431 U.S. at

E

This Court has already granted review of a Fourth Cir-
cuit case that similarly misread Rodriguez, and was de-
cided without the benefit of Falcon. In Brown v. Eckerd
Drugs, Inc., this Court vacated and remanded the decision
of the Fourth Circuit for further consideration in light
of Falcon. 102 8. Ct. 2952 (1982). Both Hill II and
Brown, cases argued within three months of each other
and in which the opinions were prepared concurrently,”
share markedly similar facts, and rest on the same doc-
trinal footing: that class membership, commonality, and
typicality are unimportant in employment discrimination
class actions. Neither case was decided with appreciation
of the need for “rigorous analysis that the prerequisites
of Rule 23(a) have been satisfied.” Falcon, 102 S. Ct. at
2373. In Brown, this disregard for the totality of Rule 23
was manifested in the majority’s holding that all minority
employees have an interest in a workplace free of em-
ployment discrimination, whether or not the named plain-
tiffs were injured in the same fashion as members of the
class sought to be represented. 663 F.2d at 1275. In his

12 See 663 F.2d at 1296 (Russell, J. dissenting) and see Abron v.
Black & Decker (U.S.) Inc., 664 F.2d 961, 974 n.18 (4th Cir. 1981).

18 Brown and Hill II both involved situations where named plain-
tiffs were improperly permitted to litigate overly broad class claims.
As in Hill II. Brown also involved post-trial intervention by a party
for purposes of preserving favorable findings of fact made on
behalf of an improperly certified class. See 663 F.2d at 1268,
1293-94.

11
dissent in Brown, Circuit Judge Russell observed that the

riguez, and had proceeded from the assumption that so
long as named plaintiffs prevailed on the merits of class

By vacating and remanding Brown, this Court clearly

B. The Decision Below Conflicts with Established Au-
thority in Other Circuits.

The Fourth Circuit’s holding below—that success on the
merits magically cures all defects in class composition and
representation, and thus permits reinstatement of unre-
viewed findings on issues not properly litigated—has been
squarely rejected by other circuit courts facing the issue.
In Payne v. Travenol Laboratories, Inc., 673 F.2d 798
(5th Cir. 1982), the Fifth Cireuit refused to find that
defects in class representation were “cured” by the
named plaintiffs’ success on the merits. The Fifth Circuit

1 See 8. Ct. R. 17.1(c). Indeed, if Hill 1] was consistent with
this Court's view of class actions, the success of the class repre-
sentatives in Brown should have been determinative of their qualifi-

cations as class representatives, and Brown should not have been
vecated and remanded.

Moreover, unless the writ is granted in this case, this Court's
remand in Brown will be futile. Should the Fourth Circuit overturn
its ruling it. Brown on the basis of Falcon, so long as Hill J! re-
mains good law, intervenors will argue that success on the merits in
Brown cures any “technical” or “formal” errors in the certification
process. This Court's ruling in Brown will lose all meaning in light

of the ever present possibility of post-remand intervention estab-
lished by Hill II.

i
Ff
15
:
;
f

|
5
f
E
|
F
f

f
;
|
5
i
Fie

Fest
1
1 .
peril .
Ii
it
at

;
|
.
i
4)

18 Judge Goldberg argued, without success, that
{t}he district court’s rationale for continuing to exclude black
males from the plaintiff class even after trial was that there
existed a potential conflict of interest between black females
and black males. In this case, to paraphrase an old adage, the
proof of plaintiffs’ ability to represent the interests of black
males was in the representation thereof. Clearly, any potential
conflicts at the relief stage of the litigation did not hinder
plaintiffs’ counsel! from presenting sufficient evidence of dis-

conflict between Payne and Hill JJ. In Payne, the plaintiffs moved
the panel to modify its opinion to make clear that four black males
could intervene “to remedy the defect in representation” found
by the court and save the favorable findings. Plaintiff-Appellees
and Cross-Appellants’ Petition for Panel Rehearing and Clarifica-
tion, at 2-3 (May 27, 1982). The plaintiffs explicitly relied upon
Hill I in support of their motion. On July 6, 1982, the panel in
motion

ag
2
1
b
ca
2
3
H

13
The Third and Ninth Circuits also have rejected the

approach espoused by the Fourth Circuit’s split decision

(3d Cir. 1980), the Third Circuit expressly relied on
Rodriguez and Rule 23 in rejecting a plaintiff's claim
that successful proof of classwide discrimination war-
ranted reversal of an earlier decision to deny certification.
And, in Black Faculty Association of Mesa Community
College v. San Diego College District, 664 F.2d 1153 (9th
Cir. 1981), although the district court found that the

in Hill II. In Gurmankin v. Costanzo, 626 F.2d 1132

These cases, coupled with Rodriguez and Falcon, estab-
lish that in employment discrimination class actions all of

the prerequisites of Rule 23 must be met, and that suc-

cess on the merits of claims that were improperly enter-

tained in the first instance is not a substitute for com-
pliance with Rule 23. Hill II stands alone in its insistence

that success on the merits obviates all defects in class

composition or representation.

C. The Decision Below Furthers an Unresolved Divi-

Be

sion Within the Fourth Circuit That Should
Addressed By This Court.
The decision below, like the Fourth Circuit’s decision

conflict. In some cases—Brown and Hill 11—fundamental
disregard for the importance of Rule 23 represents the

petitions for rehearing en banc," it should be reme-
died once and for all by this Court. Otherwise, the
state of the law in the Fourth Circuit will remain in the
intolerable condition described by Judge Russell, dissent-
ing in Brown: “Confusion in the law for both litigants and

many cases have resulted in closely div'ded en banc determinations,
infra, an appropriate basis exists for a grant of certiorari. See
generally R. Stern & E. Gressman, Supreme Court Practice 275-77
(5th ed. 1978) (cases cited therein).

17 See Abron v. Black & Decker (U.S.) Inc., 645 F.2d 951 (4th
Cir. 1981), modified, 27 Empl. Prac. Dec. (CCH) { 32,368 (4th Cir.
1982) ; Chisholm v. United States Postal Service, 665 F.2d 482, 493
n.14 (4th Cir. 1981). The source of this conflict is the firmly held
conviction by a number of judges in the Fourth Circuit, as expressed
by Judge Murnaghan dissenting in Abron v. Black & Decker (U.S.
Inc.:

Where a a class [has] been certified [and a] trial has been
held and the meritorious nature of the class claims established,
. . « it is especially grievous to the members of the class .. .
to destroy its legal status because of a supposed technical
defect in the representative's standing.

654 F.2d at 975 (emphasis added)

In Abron v. Black & Decker, in which the majority followed
Rodriguez and ruled that a named plaintiff lacked standing to main-
tain a class action on behalf of class members suffering different
injuries, the Fourth Circuit was evenly divided on whether to grant
rehearing en banc. Several months later, the circuit again split
evenly on whether to grant rehearing en banc in Brown, a case ex-
pressly repudiating the decision in Abron. And in Hill II, a decision
adopting the same improper approach as in Brown, the vote against
rehearing en banc was 6-4. App. 39a.

15

district courts, [with] the rights of the parties [left] to
depend on the panel as constituted ... 663 F.2d at
1299.

D. The Practical Effect of the Opinion Below Is to Per-
mit Spurious Class Actions and Unrestrained Liti-
gation That Will Tax Judicial Resources in All
Areas of Substantive Law in All Circuits.

By establishing “success on the merits” as a cure for
defects in class composition and representation, the ma-
jority in Hill II has stood accepted practice in class ac-
tions on its head. The guiding principle in class litigation
is that the scope of the claims that may be adjudicated
depends upon the nature and scope of the issues that the
named plaintiffs have authority to raise, and that this
must be determined at the outset of litigation.“ Under
Rule 23, the identity of the parties determines the scope
of the issues to be litigated, rather than the scope of the
issues determining the identity of the parties. By turning
accepted practice around, the Fourth Circuit has estab-
lished a form of class representation that grants any liti-
gant a trial run on any class action claim, and then per-
mits class counsel, if successful on the merits of claims
that should not have been litigated in the first instance,
to obtain intervenors and thereby legitimate the proceed-
ings. Such an interpretation is simply not “consistent
with the general policies embodied in Rule 23,” and should
be reviewed by granting this writ. See Gulf Oil Co. v.
Bernard, 452 U.S. 89, 99 (1981); Eisen v. Carlisle &
Jacquelin, 417 U.S. 156 (1974); S. Ct. R. 17.1(a).

1% Rule 23 explicitly requires the trial court to determine the
scope and nature of class claims “as soon as practicable after the
commencement of an action as a class action,” precisely to insure
that the issues that may be litigated are “ramed properly in ad-
vance of litigation, that judicial resources will be used effectively
and efficiently, and that a binding class judgment will result. For
the same reason, Rule 23 provides that the court may issue a condi-
tional certification order and may reconsider its certification order.
but only “before the decision on the merits.”

16

1. The Opinion Below Countenances Spurious Class
Actions.

The 1966 Amendments to the Federal Rules were spe-
cifically designed to end the abuses of spurious class ac-
tions and prevent one-way intervention after a deter-
mination on the merits against a defendant.” Under
the reasoning of Hill II, however, applicants can inter-
vene after trial and reap the benefits of the prior favor-
able findings, although they would never have been bound
by an adverse ruling in the litigation because the named
employee-plaintiffs were not proper class representatives.“
In other words, under the Fourth Circuit rationale im-
proper certification redounds only to the benefit of the
intervenors: they can use it to avoid an adverse deter-
mination on the merits, or use it as a basis for reinstat-
ing favorable findings on a motion to intervene.”

% Advisory Committee’s Note to Rule 23, 39 F.R.D. 69, 105-06
(1966). See American Pipe & Constr. Co. v. Utah, 414 U.S. 538,
545-47 (1974) (under old rule class members could await final
judgment on the merits to determine whether participation would
be favorable; members of class could benefit unfairly from favor-
able judgment without subjecting themselves to binding effect of
unfavorable one).

21 See generally Philadelphia Elec. Co. v. Anaconda American
Brass Co., 43 F.R.D. 452, 459 (E.D. Pa. 1968) (judgments in overly
broad class actiors subject to due process attack by class members).

22 Under these circumstances, the observation of then Judge, now
Justice, Stevens, in his dissent in Sprogis v. United Air Lines, Inc.,
444 F.2d 1194, 1207 (7th Cir.), cert. denied, 404 U.S. 991 (1971),
is particularly appropriate:

At a minimum, [Rule 23] requires the class to be defined be-
fore the merits of the case have been decided. This require-
ment is, of course, of special importance in litigation involving
claims for damages or back pay. A procedure which permits
a claim to be treated as a class action if plaintiff wins, but

merely as an individual claim if plaintiff loses, is strikingly
unfair.

The result in Hill J is no less unfair insofar as it allows inter-
venors to claim the benefits of improperly made findings. See also

17

2. The Opinion Below Will Result in Unrestrained
Class Litigation,

Apart from establishing a rule of class action law
manifestly unfair to defendants, the holding in Hill JJ
will tax the resources of the judiciary immeasurably.
Because control of class actions need not be established
at the initiation of litigation through proper certifica-
tion procedures,” class actions will assume an independ-
ent life, and extend for so long as new parties are willing
to intervene as class representatives and claim the bene-
fits of jurisdictionally defective findings. Moreover, at
the time of such intervention, district courts will be
foreed into precisely the posture rejected by this Court
in Eisen v. Carlisle & Jacquelin, 417 U.S, 156, 177-78
(1974). In FVisen, this Court in construing Rule 23

Kremer v. Chemical Constr. Corp., 102 8. Ct. 1883 (1982) (finality
should not depend on which party prevails) ; and see Deposit Guar-
anty Nat'l Bank v. Roper, 446 U.S. 826, 353-54 (1980) (Powell, J.
dissenting).

The rule devised in Hill / far exceeds opportunities available
to litigants initiating new litigation under the doctrine of offensive
collateral estoppel. The panel in Hill J acknowledged abundant
authority that vacated findings, such as those in Hill J, would
“have no vitality as precedent or res judicata in other litigation.”
672 F.2d at 387, App. 9a. According to the panel, however, this
authority did not apply to reinstatement in the same action. Id.
at 388, App. 9a-10a. This distinction is without logic or reason see
id, at 398, App. ia (Widener, J. dissenting), and results in the
reappearance of the spurious class action.

In fact, as pointed out by Judge Russell in his dissent in
Brown, the natural consequence of Hill / is that in all but the
clearest cases, class certification proceedings will become perfunc-
tory exercises and prudent district courts will certify, on a pro
forma basis, as broad a class as possible. If a district judge is
presented with a close question as to class composition or repre-
sentation, the rationale of Mill // dictates that judicial economies
lie in broad certification and trial of as many claims as possible,
with post-judgment intervention allowed to cure the defects. As
Judge Russell emphasized in his dissent in Brown, the result
“would mean that Rule 28 would be without meaning or effect and
would be just a jumble of worcls stated in hypocritical mandatory
terms.” 663 F.2d at 1297.

expressly disapproved of examining the merits of the
litigation and structuring the class accordingly. The
concerns of this Court in Fisen are more than war-
ranted under the decision in Hill IJ, which approves
structuring the class on the basis of an actual (although
vacated) judgment—not simply a provisional ruling on
the merits as in Eisen.“

The novel intervention theory set forth in Hill I] re-
wards gamesmanship by class counsel. There was no
reason why applicants could not have been secured as
named plaintiffs at the initiation of this lawsuit seven
years ago in 1978.“ In 1979, after final adjudication of
all issues the named plaintiffs could properly present,
counsel for the plaintiffs first secured intervenors to
pursue claims that had been ruled outside the scope of
the litigation. This case now continues despite the final
adjudication, and dismissal of all claims the original
named plaintiffs had authority to bring. The unreviewed
applicant class claims in this case thus have developed a
life of their own and continue to search for a proper

The opinion below also threatens the basic premise underly-
ing the restriction by this Court on appeals of class certifica-
tion decisions. This Court has consistently held that interlocutory
appeals are unnecessary and that errors in class certification can be
remedied properly after completion of the proceedings below. Under
the panel opinion, however, appeal as of right after completion of
the case is a useless exercise, and erroneous grants of class certifi-
cation are in effect unreviewable, Even if the class certification
ruling is reversed on appeal, as in Hill J, adverse classwide findings
on the merits may be used as a basis for post-judgment interven-
tion. Thus under Hill J interlocutory appeals, as soon as the plain-
tiffs prevail on a class certification motion, stand as the only prac-
tical method of review.

*All of the purported intervenors are represented by counsel for
the named plaintiffs, and one of the purported intervenors is the
sister of an original named plaintiff who has averred that she was
aware of the litigation. The two other purported intervenors did
not apply for work at Western Electric until 1979, more than three
years after the trial on the merits.

19

plaintiff, despite the opinion in Hill J establishing that,
as a matter of law, they should never have been part of
the case.”

Finally, the decision below squarely conflicts with this
Court’s efforts to insure that employment discrimination
litigation is conducted in accordance with the federal
rules and the statutory framework established by Con-
gress. In the trilogy of cases decided during the 1976
Supreme Court term,” as amplified by the decision in
Texas Department of Community Affairs v. Burdine,
450 U.S, 248 (1981), and Falcon, supra, this Court
has established parameters to insure that Title VII
cases, and particularly class actions, remain reason-
able and manageable. This Court has done this by,
inter alia, limiting eligibility to represent a class to
those who are members of the class and suffer the same
injury as class members (Rodriguez and Falcon), care-
fully structuring the allocation and burden of proof
(Burdine), and refusing to countenance an overbroad
theory of “continuing violations” that would have re-
vived stale claims (Frans). The decision in Hill J is
totally inconsistent with this Court’s emphasis on careful
and structured management of employment discrimina-

** As emphasized by Judge Widener in his dissent in this case,

[In the case now before this court, there was no classwide
{hiring} liability legitimately adjudicated in the initial case
because, as this court held in (Hill JJ, the class was overly
broad and thus not properly constituted.

The named plaintiffs [in Hill I] were ever part of the class

of disappointed applicants for employment and thus certifica-
tion never should have occurred.

672 F.2d at 393, 397, App. 20a, 28a. Class counsel recently in-
formed the defendant of their intention to file yet another motion
to intervene on behalf of a new putative intervenor.

* See n. 11 supra,

tion litigation, and thus should be addressed by this
Court.”

II. THE DECISION BELOW PRESENTS NOVEL AND
FUNDAMENTAL QUESTIONS CONCERNING THE
JURISDICTION OF FEDERAL COURTS AND CON-
FLICTS WITH OTHER DECISIONS OF THIS
COURT AND DECISIONS IN OTHER CIRCUITS.

A. The Decision Below Conflicts with the Holdings of
This Court.

The decision below not only contravenes the central
tenets of Rule 23, it raises an issue of substantial sig-
nificance under Article III regarding class action litiga-
tion that warrants the attention of this Court.” The
original named plaintiffs in this case were all employees,
and never satisfied the fundamental requirement of
membership in the applicant class. As the court in
Hill I explicitly held, these employees did not suffer the

There is an additional ground for this Court to exercise its
supervisory powers and grant this writ. The panel in Hill J com-
pletely disregarded the law of the case doctrine. This Court has
recognized this doctrine as an essential and longstanding rule of
practice within the federal judiciary, designed to insure finality
and guard against panel shopping within appellate tribunals. See,
¢.g., United States v. United States Smelting Ref. & Mining Co., 389
U.S. 186 (19560). In Hill J, the first panel vacated the hiring findings
and failed to provide for post-remand intervention, thus clearly es-
tablishing, as the law of this case, that the classwide hiring findings
were without any legal basis or significance. See EEOC v. Interna-
tional Longshoremen’s Ass'n, 628 F.2d 1064, 10568 (5th Cir. 1980),
cert. denied, 461 U.S. 917 (1981). By ignoring the law of the case,
the panel in Hill JI has encouraged panel shopping, discouraged th:
voluntary settlement of class litigation, and clearly departed from
the usual and accepted course of judicial proceedings.

g. Ct. R. 17.1(a), see United States Parole Commission v.
Geraghty, 445 U.S. 388, 390 (1980); of. Miner v. Gillette Co., 87
Ill, 2d 7, 428 N. K. 2d 478 (1981), cert. granted, 102 8. Ct. 1767
(1982) (refusal by state court to apply traditional jurisdictional
principles to multistate class suit).

21

same injury or possess the same interests as applicants.
Yet, in Hill Il, the lower court dismissed this prerequisite
to class representation as “less fundamental than a pure
jurisdictional requirement.” 672 F.2d at 388, App. 10a.

In Blum v. Yaretsky, 102 8. Ct. 2777 (1982), this
Court stated that [it is axiomatic that the judicial
power conferred by Art. III may not be exercised” unless
class representatives establish they are members of the
class they purport to represent. Id. at 2783." Because
the named plaintiffs in Blum failed to meet this funda-
mental requirement, this Court held that the district
court had “exceeded its authority in adjudicating” class
claims, and that favorable findings entered on behalf of
the class were “wh~lly gratuitous and advisory.” Id. at
2784-85. The assert. A by the panel in Hill JI that class
membership is “less fundamental than a pure jurisdic-
tional requirement” and that void class findings may be
far more than “gratuitous and advisory” directly con-
flicts with the clear holding of this Court in Blum.”

% Blum was decided approximately four months after the decision
in Hill J., and the Fourth Circuit's failure to benefit from the hold-
ing in Blum is yet another reason to grant this petition.

The need for class membership and common injury finds its
origins in the justiciability requirements of Article III of the Con-
stitution. To insure a case or controversy suitable for adjudication
the class representative must establish his own personal interest,
which must be shared by the members of the class. As stated by
Chief Justice Burger,

[A] named plaintiff cannot acquire standing to sue by bringing
his action on behalf of others who suffered injury which would
have afforded them standing had they been named plaintiffs;
it bears repeating that a person cannot predicate standing
on injury which he does not share. Standing cannot be ac-
quired through back door of a class action.

Allee v. Medrano, 416 U.S. 802, 828-29 (1974) (opinion of Burger,
C.J.). See also Valley Forge Christian College v. Americans United
For Separation of Church & State, Inc., 102 8. Ct. 782 (1982);
City of Los Angeles v. Lyons, 453 U.S. 1808 (1981) (Rehnquist, J.,

Moreover, the holding in Hill I] that defects in class
comp: sition and representation may be cured and that
vacated hiring findings can somehow be resuscitated
directly conflicts with the holding of this Court that
findings of fact made without jurisdiction are void ab
initio. In Firestone Tire & Rubber Co. v. Risjord, 449
U.S, 368 (1981), this Court explicitly held that a court
without jurisdiction to hear a case “was without au-
thority to decide the merits.” 449 U.S. at 379. This
Court indicated that orders entered without jurisdiction
lack any force or effect and cannot be cured, for “by
definition, a jurisdictional ruling may never be made
prospective only.” Id. Subsequent decisions by this Court
have emphasized the central holding of Firestone, and
highlight further the error of the court below.”

in chambers) (application for stay granted), cert. granted, 102
8. Ct. 1426 (1982); F. L. v. Matheson, 460 U.S, 398 (1981);
Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S.
26, 40 n.20 (1976); Warth v. Seldin, 422 U.S. 490, 502 (1975);
Schlesinger v. Reservists Comm, to Stop the War, 418 / 8. 208, 216
(1974).

This Article III requirement is incorporated in, and congruent
with, the initial requirement of Fed. R. Civ. P. 23(a) that “one or
more members of a class may sue... .” See, ¢.g., O'Shea v. Little-
ton, 414 U.S, 488, 494 & n.3 (1974); Bailey v. Patterson, 369 US.
$1, 82-88 (1962); Feldman v. Simkins Indus., Inc., 679 F.2d 1299
(9th Cir. 1982); Machella v. Cardenas, 668 F.2d 923 (6th Cir.
1981); see generally, 7 C. Wright 4 A. Miller, Federal Practice
and Procedure § 1761 (1972).

. See, ¢.g., Underwriters Nat'l Assurance Co. v. North Carolina
Life & Accident & Health Ins. Guaranty Asan, 102 8. Ct. 1367,
1366 n.10 (1982) (Marshall, J.) (“it is axiomatic that a judg-
ment must be supported by a proper showing of jurisdiction over
the subject matter and over the relevant parties“); /nsurance Corp.
of Ireland, Ltd, v. Compagnie dea Bauwites de Guinee, 102 8. Ct.
2099 (1982) (White, J.) (the validity of an order of a federal
court depends upon that court’s having jurisdiction over both the
subject matter and the parties”).

By ignoring established authority, and by sanctioning jurisdic-
tion without class membership, the holding below embraces the

B. The Decision Below Conflicts with Decisions
Throughout the Circuits,

The decision below directly conflicts with the holdings
of the Third, Fifth, Sixth, Seventh, and Tenth Circuits,
the D.C, Circuit, and the Court of Claims. All these ap-
pellate tribunals have held that judgments entered with-
out jurisdiction are void.“ Moreover, the Third Circuit

extreme rejected by this Court in United States Parole Commission
v, Geraghty: promising jurisdiction on “ ‘the bare existence of a
sharply presented issue in a concrete and vigorously argued case’
446 U.S. at 406 n.10 (quoting Justice Powell's dissent, id.
at 421) (1980). The holding of this Court in Geraghty never ad-
dressed the issues raised in this case. Geraghty dealt with mootness
and efforts to appeal an erroneous denial of class certification, by
a named plaintiff who was clearly a member of the putative class
at the time certification was improperly denied. Similarly, neither
do the Fourth Circuit's “headless class” cases, ¢.g., Simmons v.
Brown, 611 F.2d 66 (4th Cir. 1979), support the plaintiffs’ posi-
tion, These cases again involve an erroneous denial of class certi-
fication entered at a time when the named plaintiff was apparently
u proper representative. In Hill 1], however, the named plain-
tiffs were never part of the class of disappointed applicants and
„ » certification never should have occurred.” 672 F.2d at 397,
App. 28a (Widener, J. dissenting).

™ See, ¢.g., Hi-Craft Clothing Co, v. NLRB, 660 F.2d 910, 918-
19 (3d Cir, 1981); Amalgamated Sugar Co, v, Bergland, 664 F.2d
818, 821-24 (10th Cir. 1981); Hydaburg Cooperative Ass'n v.
United States, 667 F.2d 64, 66 (Ct. Cl. 1981); Alabama Hospital
Ass'n v. United States, 666 F.2d 607 (Ct. Cl. 1981), cert, denied,
102 8. Ct. 200€ (1982); Bank of Montreal v. Olafason, 648 F.2d
1078, 1079-80 (6th Cir.), cert. denied, 102 8. Ct. 641 (1981);
Simpson v. Motorista Mut. Ina, Co,, 494 F.2d 860, 854 (7th Cir.),
cert, denied, 419 U.S, 901 (1974); Nader v. Volpe, 466 F.2d 261,
265 (D.C. Cir. 1972); Troy State University v. Dickey, 402 F.2d
516, 516 (6th Cir, 1968),

The majority in Hill I] attempted to distinguish many of these
cases on the ground that they apply to efforts to use jurisdictionally
void judgments in subsequent litigation, not the same action. As
Judge Widener stated in his dissent, “[T)he difference is really im-
material,” and that “[(ljogically it makes little difference whether
the attempted subsequent litigation is a continuation of the same
action or is a separate action.” 072 F.2d at 398, App. 32a. Indeed,

in De Nafo v. Finch, 486 F.2d 737 (8d Cir. 1971), and
the Tenth Circuit in City & County of Denver v. Matsch,
635 F.2d 804 (10th Cir. 1980), cert. denied, 101 S. Ct.
3114 (1981), Lave directly held, contrary to Hill II, that
litigants cannot reinstate or cure jurisdictionally void
findings in the same litigation.”

III. THIS CASE PRESENTS CRITICAL QUESTIONS
REGARDING THE RESPONSIBILITY AND AU-
THORITY OF TRIAL COURTS TO SUPERVISE
CLASS ACTION LITIGATION AND CONFLICTS
WITH PRINCIPLES REPEATEDLY SET FORTH
BY THIS COURT AND EVERY CIRCUIT.

Under the holdings of this Court, and every circuit that
has confronted the issue, district courts are afforded
broad discretion in disposing of motions for permissive

the entire premise of the attempted intervention in this case is to
avoid the normal principles of res judicata and collateral estoppel,
which would preclude reinstatement of a void judgment in new
litigation.

™ The sole case law relied upon by the panel in Hill // for the
proposition that jurisdictional defects can be cured, Finn v. Amer-
ican Fire & Casualty Co., 207 F.2d 113 (5th Cir. 1953), cert. denied,
_ 347 U.S. 912 (1954), is not applicable to the Article III and Rule 23
issues in this case, and as Judge Widener emphasized has been
effectively overruled by this Court in Firestone Tire & Rubber Co.

Nor does Mullaney v. Anderson, 324 U.S. 415 (1952), the prin-
(pal case relied upon by plaintiffs, apply to the issues in this case.
Mullaney applied a real-party-in-interest analysis and permitted a
last minute amendment of a defective pleading before this Court
by union agents clearly authorized by union members to litigate
on their behalf. In Hill I. however, the plaintiffs never had the
capacity to litigate on behalf of applicants, and, as held by the
Tenth Circuit in City & County of Denver v. Matsch, supra, efforts
to “cure” jurisdictionally defective findings under such circumstances
are impermissible.

prejudice the existing class members and unnecessarily
complicate and delay completion of the case. Rather than
enter a “routine per curiam dismissal of the appeal,”
672 F.2d 392, App. 18a (Widener, J. dissenting),

%5 See NAACP v. New York, 413 U.S. 345, 366 (1973) ; Delaware
Valley Citizens’ Council for Clean Air v. Pennsylvania, 674 F.2d 970
(3d Cir. 1982) Wade v. Goldschmidt, 673 F.2d 182 (7th Cir. 1982) ;
Stotts v. Memphis Fire Dep't, 679 F.2d 579 (6th Cir. 1982) United
States v. Lowisiana, 33 Fed. R. Serv. 2d 1119 (5th Cir. 1982);
Washington Ass'n for Retarded Citizens v. Thomas, 33 Fed. R.
Serv. 2d 177 (9th Cir. 1981); Michigan Association for Retarded
Citizens v. Smith, 657 F.2d 102 (6th Cir. 1981); Culbreath v.
Dukakis, 630 F.2d 15 (ist Cir. 1980); see generally 7A C. Wright
& A. Miller, Federal Practice and Procedure F 1913, 1923 (1972).

See, e.g., Delaware Valley Citizens’ Council for Clean Air v.
Pennsylvania, 674 F.2d 970 (3d Cir. 1982) ; Stotts v. Memphis Fire
Dep't, 679 F.2d 579 (6th Cir. 1982); Alaniz v. Tillie Lewis Foods,
572 F.2d 657 (9th Cir.), cert. denied, 489 U.S. 887 (1978); Stall-
worth v. Monsanto Co., 558 F.2d 257 (Sth Cir. — 14 oe

v. Allegheny-Ludlum Indus., Inc., 553 F. 2d 461 (5th Cir. 1977), cert
denied, 488 US. 914 (1978); McClain v. Wagner Elec. Corp., 550
F.2d 1115 (8th Cir. 1977) ; EEOC v. United Air Lines, Inc., 615 F.2d
946 (7th Cir. 1975).

district court, and disregard for findings of a factual
nature made by the district court regarding the effects of
intervention, are contrary to recognized limits on the au-
thority of appellate tribunals. This is particularly true
where, as here, the appellate court can point to no im-
proper findings in support of its ruling, but rather only
to a theoretical disagreement over the impact of inter-
vention upon the course of litigation. This Court has con-

sisvently addressed through grants of certiorari
deviations from proper standards of appellate review. See
Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 102
S. Ct. 2182 (1982); Pullman-Standard v. Swint, 102 8.
Ct. 1781 (1982); Piper Aircraft Co. v. Reyno, 102 8.
Ct. 252 (1981).

3

udice to rights of the original parties—and added a novel
factor, reinstatement of previously vacated findings.
Consideration of this factor is totally unwarranted under
the language of Rule 24(b), and antithetical to the effi-

Hite
15
a
if
lit
:
Hi
Fi:
Bas

1
12
N
li
ee
7
if

27

CONCLUSION

For the reasons set forth in this petition, Petitioner
requests that this Court grant its Petition for a Writ of
Certiorari and set this case for argument or, in the alter-
native, vacate and remand this case for further considera-
tion in light of Falcon, as was done last term in Brown
v. Eckerd Drugs, Inc.

Respectfully submitted,

ZACHARY D. FASMAN,
Counsel of Record

MICHAEL J. ALBUM
WALD, HARKRADER & Ross
1300 Nineteenth Street, N.W.
Washington, D.C. 20086
(202) 828-1200

Counsel for Petitioner

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0735%3A1. Public record. Not legal advice.