Petition — Adams v. Proctor & Gamble Manufacturing Co.

28 ~"V SQ [citer sive ton US]

In The NOV 9 1963

Supreme Court of the Hnittd States “~~

October Term, 1983

GENEVIEVE S. ADAMS, et ai.,

Petitioners,

. VS.

THE PROCTOR & GAMBLE MANUFACTURING

COMPANY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

SIDNEY BLUM

Attorney for Petitioners

10 Light Street

Baltimore, Maryland 21202

(301) 685-1800

*NJ (201) 257-68S50°NY (212) 840-9494¢PA (215) 563-5587

pag MA (617) 542-1114°DC (202) 783-7288°USA (800) 221-0008

QUESTION PRESENTED

The United States Court of Appeals for the Fourth Circuit

is composed of ten judges in regular active service. 28 U.S.C.

§46(c), set forth below, provides power to order a rehearing en

banc by order of a majority of the circuit judges who are in regular

active service.

After decision in this case by a three judge panel, the

respondent filed a motion for rehearing and suggestion for

rehearing en banc. The Circuit Court granted the rehearing en

banc with five judges voting to grant the same, four voting to

deny and with one judge being disqualified.

The question that is presented is this: Under those

circumstances, do five judges constitute a majority of a court

which has ten judges in active service?

ii

LIST OF PARTIES

The list of all parties in the court below is as follows:

Appellants (Petitioners Herein)

Genevieve S. Adams, Louise Bertha, Algerie R. (Kelley)

Brigerman, Ann Brown, Carrie B. Chaffin, Lelia B. Harthanson,

Loretta M. Hinkle, Nellie Kern, Martha McGinn, Anna M. Miller,

Dorothy Shawker, Claretha Smith, Lorrayne M. Soethe, Margie

Stover, Shirley S. Sunderland and Ethel Wimpling.

Appellee (Respondent Herein)

The Proctor & Gamble Manufacturing Company.

Amicus Curiae

Equal Employment Opportunity Commission.

iii

"TABLE OF CONTENTS

ee ery FEE ee eT Ly oe

eo. , wi oe be bela SRR es eee

Statutory Provisions and Rules Involved................

en -Gar Wr SOD. 's o-oo.» 4 u slg WRid Gia o's ato Ghee

Reasons for Granting the Writ:

I. Certiorari should be granted to resolve conflicts

between the Circuit Courts on the issue presented..

II. Certiorari is appropriate because the decision below

is in conflict with an applicable decision of the Supreme

Court or, alternatively, it decided an important

question of federal law which has not been but should

be settled by the Supreme Court. ...............

EUININIED 3 5:2'o 0.4 's.0 dard «6 alu 0,0,s Se SOLU eae

9

iv

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Arnold v. Eastern Airlines, Inc., 712 F. 2d 899 (4th Cir. 1983)

BLN ARE RE Sake PR Sg ae Sy 5, 6, 8, 9, 10

Boyd v. Lefrak Organization, 517 F. 2d 918 (2d Cir. 1975)

Clark v. American Broadcasting Companies, Inc., 684 F. 2d

ee Maen, SUN bch oad atie ceo eehdcans vecevansd 7

Copper & Brass Fabricators Council, Inc. v. Department of

the Treasury, et al., 679 F. 2d 951 (D.C. Cir. 1982)

LGW cle CS Sills o She csthig Pe oh obs 6nd. cheetah oka awa 7

Curtis-Wright Corp. v. General Elec. Co., 599 F. 2d 1259

ee Ge. « < écbawh's ccs 1 aes oe Lee 7

E.E.O.C. v. General Electric Co., 532 F. 2d 359 (4th Cir. 1976)

nc aeloeh abe eWhea us 6 bend cco. bane eee 8

Ford Motor Co. v. Federal Trade Comm’n, 673 F. 2d 1008

A Ges, BOI 5's os eve RES SIS C Le ee PS

Porter County Chapter of Isaac Walton League v. Atomic

Energy Comm’n, 515 F. 2d 513 (7th Cir. 1978), rev’d

on other grounds, sub nom. Northern Indiana Public

Service Co. v. Porter County Chapter of Isaac Walton

ee BE to Baie - pean aoe 7,8

~~ Shenker v. Baltimore & Ohio RR Co., 374 U.S. 1 (1963)

Contents

Page

Textile Mills Corp. v. Commissioner, 314 U.S. 326 (1941).

ee ni. evade Ou house eb ebm bees eee eee 9

United States v. Martorano, 620 F. 2d 912 (st Cir. 1980)

et euu seek Dkh dnc desde acs oc ctReun anes obhewebe ye’ 8

Western Pac. R. Corp. v. Western Pac. R. Co., 345 U.S.

ik nn 0a s ve d's una cn dO coer tb aaeneueen 9

Zahn v. International Paper Co., 469 F. 2d 1033 (2d Cir. 1972),

affirmed on other grounds, 414 U.S. 291 (1973)..... 6

Statutes Cited:

os ana ss os ev eeuseuwe dbs vision i, 2, 5, 6, 8

Se Sere errs ee 2,

fo ois nui 0S a sos och bana<s ice bene gine 4

ies ois ons anu'h doe weak bee eee ee 4

MERC MMOD OSIMT) 5... 0... cs ccc p conve cca dance’ 3, 4

ee Glabies GAOOk . 2.2.2... OS pedis apie ee 4

IE o's 5 bdis <0 4s casd saces deus dubaweals alan 4

Rules Cited:

Court of Appeals, Eighth Circuit, Rule 16(a) ...........

Federal Rules of Appellate Procedure, Rule 35(a)

¥

ae,

DS i a a . ? ry,

No.

In The

Supreme Court of the United States

»™

—

October Term, 1983

GENEVIEVE S. ADAMS, et ai.,

Petitioners,

vs.

THE PROCTOR & GAMBLE MANUFACTURING

COMPANY,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

To the Honorable, the Chief Justice and Associate Justices

of the Supreme Court of the United States:

Genevieve S. Adams, Louise Bertha, Algerie R. (Kelley)

Brigerman, Ann Brown, Carrie B. Chaffin, Lelia B. Harthanson,

Loretta M. Hinkle, Nellie Kern, Martha McGinn, Anna M. Miller,

Dorothy N. Shawker, Claretha Smith, Lorrayne M. Soethe, Margie

Stover, Shirley S. Sunderland and Ethel Wimpling, the petitioners

herein, pray that a writ of certiorari issue to review the judgment

of the United States Court of Appeals for the Fourth Circuit

entered in the above entitled case on May 18, 1982 (the same having

been the subject of timely motions for rehearing).

’ "a

Sx. aed

OPINIONS BELOW

The January 17, 1983 opinion of the United States Court

of Appeals for the Fourth Circuit, sitting en banc, whose judgment

is hereby sought to be reviewed, is reported at 697 F. 2d 572 and

is printed in the Appendix hereto at pp. la-2ta. Petitioners filed

a timely motion for rehearing under FRAP 40 which was denied

on August 12, 1983 and as appears at Appendix pp. 76a-77a.

The panel decision of the Circuit Court is reported at 678

F. 2d 1190 and is reproduced in the Appendix at pp. 22a-5S5a.

The opinion of the United States District Court for the District

of Maryland is unreported and appears at Appendix pp. 56a-72a.

JURISDICTION

In accordance with the panel decision herein, judgment was

entered on May 18, 1982 (Appendix, pp. 78a-81a). Respondent’s

timely petition for rehearing and suggestion for rehearing en banc

was granted on August 30, 1982 (Appendix,pp. 74a-75a). The

opinion of the court en banc was entered on January 17, 1983.

Petitioners then filed a timely motion for rehearing which was

denied by order of August 12, 1983 (Appendix, pp. 76a-77a).

The jurisdiction of the Supreme Court is invoked under 28

U.S.C. §1254(1).

STATUTORY PROVISIONS AND RULES INVOLVED

This petition involves 28 U.S.C. §46(c) which reads:

Cases and controversies shall be heard and

determined by a court or panel of not more than

three judges (except that the United States Court

of Appeals for the Federal Circuit may sit in panels

of more than three judges if its rules so provide),

unless a hearing or rehearing before the court in

banc is ordered by a majority of the circuit judges

of the circuit who are in regular active service, or

such number of judges as may be prescribed in

accordance with section 6 of Public Law 95-486

(92 Stat. 1633), except that any senior circuit judge

of the circuit shall be eligible to participate, at his

election and upon designation and assignment

pursuant to section 294(c) of this title and the rules

of the circuit, as a member of an in banc court

reviewing a decision of a panel of which such judge

was a member. A court in banc shall consist of

all circuit judges in regular active service.

Also involved is Rule 35({a) of the Federal Rules of Appellate

Procedure, which reads:

A majority of the circuit judges who are in regular

active service may order that an appeal or other

proceeding be heard or reheard by the court of

& appeals in banc. Such a hearing or rehearing is

not favored and ordinarily will not be ordered

except (1) when consideration by the full court is

necessary to secure or maintain uniformity of its

decisions, or (2) when the proceeding involves a

question of exceptional importance.

STATEMENT OF THE CASE

Petitioners instituted this proceeding in the United States

District Court for the District of Maryland seeking injunctive and

other relief against alleged racial discrimination in employment.

Jurisdiction in the District Court was based on §706(f)(1) of the

oe ‘. pee tee 8 er NRE eee |

Civil Rights Act of 1964, 42 U.S.C. §2000-e5(f)(1) and on §§1331,

1343(4), 2201 and 2202 of 28 U.S.C.

The respondent moved to dismiss on the basis that right-to-

sue letters had been improperly issued by the Equal Employment

Opportunity Commission (the EEOC). That contention was

grounded on the fact that the EEOC had previously filed suit

against the respondent, that the petitioners had not intervened

in that case and that the EEOC litigation had been terminated

by a consent decree.

Respondent argued, and the District Court agreed, that a

consent decree in the EEOC litigation cut off the petitioners’ right

to initiate their own action under Title VII of the Civil Rights Act.

Upon petitioners’ appeal, a majority of the three judge panel

found the District Court to be in error, vacated the judgment

of that Court and remanded the case for further proceedings.

Respondent then filed a petition for rehearing and suggestion

for rehearing en banc, which was granted on August 30, 1982.

On January 17, 1983 the opinion of the Circuit Court en banc

was filed with a majority affirming the judgment of the District

Court. Judge Phillips dissented in an opinion joined by Chief

Judge Winter and Judge Sprouse. Judge Widener concurred in

the opinion of the majority but went on to note

. . . a possible procedural difficulty not yet fully

resolved by this court which might change the result

‘of this case. In the case of Arnold v. Eastern

Airlines, No. 80-1245, et al., on December 23, 1982

the en banc court entered an order which,

temporarily at least, granted rehearing in that case.

The vote of the en banc court of course is binding

upon us. The vote in that case was 5 for rehearing

en banc and 4 against, with one disqualification.

After the vote taken in that case, one of the judges

who had voted against rehearing took senior status,

further complicating the matter.

In the case before us, 5 judges voted for

rehearing en banc and 4 voted against, with one

disqualification.

It is arguable, of course, that rehearing in this

case was not properly authorized under 28 U.S.C.

§46(c) as the authorities cited in the Arnold order

I have above referred to discuss. (Appendix, pp.

lla-12a).

Having learned for the first time of the votes taken on granting

the rehearing en banc in this case, counsel for the petitioners then

filed a petition for rehearing on the issue of whether the en banc

hearing had been improvidently granted.

By order of August 12, 1983 the Circuit Court denied

petiticners a rehearing on the basis that the court had ‘‘definitively

decided”’ the issue in the case of Arnold v. Eastern Airlines, Inc.,

712 F. 2d 899 (filed July 8, 1983) — the case called to counsel’s

attention by the concurring opinion of Judge Widener herein (the

opinion in Arnold v. Eastern Airlines, Inc. is reproduced at

Appendix pp. 82a-206a and is cited hereafter as Arnold).

REASONS FOR GRANTING THE WRIT

I.

R.

Certiorari should be granted to resolve conflicts between the

Circuit Courts on the issue presented.

There is no question but that a conflict exists between the

Circuits as to the proper interpretation of 28 U.S.C. §46(c), which,

for purposes of this case, reads in pertinent part:

Cases and controversies shall be heard and

determined by a court or panel of not more than

three judges ... unless a hearing or rehearing

before the court in banc is ordered by @ majority

of the circuit judges who are in regular active

service .... [Emphasis supplied.]

In this case the Circuit Court relied upon its just filed decision

in Arnold v. Eastern Airlines, Inc., 712 F. 2d 899 (1983). In that

case a majority ruled that a judge who recuses or disqualifies

himself is out of service insofar as the particular case is concerned.

Arnold, supra, at 904. Applying that rationale to the present case

resulted in a rehearing by order of five judges which in turn was

found to be a majority of an otherwise ten-member court. Judges

Widener and Phillips dissented from the holding ‘‘Because five

votes does not constitute a majority of ten, the number of circuit

judges in regular active service at the time of the poll. . . .”’ 712

F. 2d 908.

The majority recognized that its holding conflicted with that

of the Second Circuit in Zahn v. International Paper Co., 469

F. 2d 1033, 1041 (2d Cir. 1972), affirmed on other grounds, 414

U.S. 291 (1973). The Second Circuit had consisted of nine judges,

one seat was vacant and one judge did not vote due to

disqualification. Of the remaining seven judges, four voted to

rehear and three not to rehear. The petition for rehearing was

denied ‘‘for want of an affirmative vote ‘by a majority of the

circuit judges who are in regular active service.’’’ Zahn, supra,

at 1040, The Second Circuit adhered to its understanding of §46(c)

in Boyd v. Lefrak Organization, 517 F. 2d 918 (2d Cir. 1975).

The dissenting opinion in that case observed:

This is another case, like Zahn .. . where a

majority of the active judges qualified to vote favor

a rehearing en banc, but because a majority of

the active judges authorized by law to sit on the

court cannot be mustered the petition for rehearing

fails. 517 F. 2d at 919.

The decision in the present case is also in direct conflict with

Clark v. American Broadcasting Companies, Inc., 684 F.2d 1208

(6th Cir. 1982). In that case a motion for rehearing had been

ordered only to be followed by a subsequently published order

that reads:

. . . The Chief Judge has now directed me to advise

that his ruling was made in error and that in fact

the 5-4 vote (one active judge being disqualified)

failed to attain the 6 affirmative votes required

to constitute ‘‘a majority of the [10] circuit judges

who [were] in regular active service’’ within the

meaning of Rule 35(a) of the Federal Rules of

Appellate Procedure .... [684 F. 2d at 1226;

emphasis supplied.]

Other Circuits have reached similar results. Thus, in Curtis-

Wright Corp. v. General Elec. Co., 599 F. 2d 1259 (3d Cir. 1979)

rehearing was denied where four judges voted to rehear, three

voted not to rehear and two judges did not participate (the

dissenting opinion of Judge Gibbons indicates that this was the

result of recusals). See also, Copper & Brass Fabricators Council,

Inc. v. Department of the Treasury, et al., 679 F. 2d 951 (D.C.

Cir. 1982), reh’g denied, unpublished orders in Civil Action No.

81-00126 (reproduced in Appendix, pp. 207a-210a) where there

were five votes to rehear, three not to rehear and two judges not

participating; Porter County Chapter of Isaac Walton League v.

Atomic Energy Comm’n, 515 F. 2d 513, 533-34 (7th Cir. 1978)

(rehearing denied, four votes being to rehear, three against and

one judge taking no part), rev’d on other grounds, sub nom.

Northern Indiana Public Service Co. v. Porter County Chapter

of Isaac Walton League, 423 U.S. 123 (1975).

Thus, the Second, Third, Sixth, Seventh and District of

Columbia Circuits follow a literal reading of §46(c) and require

an absolute majority of the total number of circuit judges to vote

in favor of rehearing before such a motion is granted.

A minority of Circuits have ruled otherwise. The Eighth

Circuit by its Rule 16(a) applies a rule of a majority of judges

who are in regular active service and ‘‘who are not disqualified

in the particular case.’’ Rule 16(a) of the United States Court

of Appeals for the Eighth Circuit. The Ninth Circuit follows a

similar policy. See Ford Motor Co. v. Federal Trade Comm'n,

673 F. 2d 1008, 1012, n. 1 (9th Cir. 1982) (Reinhardt, J.,

dissenting). See also, United States v. Martorano, 620 F. 2d 912

(Ist Cir. 1980), where the court dealt with the issue in the context

of a vacancy on the court.

Petitioners in this case were asserting important federal rights,

the policy against discrimination being considered to be one of -

highest priority. E.E.0.C. v. General Electric Co., 532 F. 2d 359,

372-73 (4th Cir. 1976). Their case presents a clear-cut opportunity

to resolve the conflict between the Circuits on an important issue

affecting judicial administration. Unlike Arnold, there is no

complicating factor of a judge having taken senior status between

the time of the poll and the entry of the order. And unlike United

States v. Martorano, supra, there is no complicating factor of

a vacancy on the court. The issue of including or excluding

disqualified judges for purposes of determining a majority of the

judges in active service is squarely presented.

Also of note is the fact that the EEOC, as amicus in this

case, not only supported thé petitioners as to the underlying merits

but on the issue here presented as well. Moreover, in Arnold,

oe

OE nt Fila

Se ON eee

the United States as an appellee opposed the grant of rehearing

under the similar, if not identical, circumstances there present.

With ever-increasing litigation and the frequency of recusals,

the problem is a recurring one. As noted by Judge Widener in

this case, ‘‘Disqualification of more than one judge is not

uncommon in this circuit.”’ Arnold, supra, n. 3, 712 F. 2d at 912.

Certiorari is appropriate because the decision below is in

conflict with an applicable decision of the Supreme Court or,

alternatively, it decided an important question of federal law which

has not been but should be settled by the Supreme Court.

This Honorable Court has had occasion to consider the

subject of en banc courts in several cases. In Textile Mills Corp.

v. Commissioner, 314 U.S. 326 (1941), it was held that the

pertinent statutes did not prchibit a Court of Appeals with more

than three judges from hearing a case en banc. There followed

Western Pac. R. Corp. v. Western Pac. R. Co., 345 U.S. 247

(1953), which construed the predecessor to §46(c) as a grant of

power to order hearings and rehearings.en banc and which held

it to be error for a court to strike out the application of a party

for en banc consideration.

More recently, Shenker v. Baltimore & Ohio RR Co., 374

U.S. 1, 4-5, dealt with a decision of the Third Circuit when it

was composed of eight judges in active service. Four had voted

to rehear, two voted not to rehear and two judges abstained. The

denial of the rehearing by the Third Circuit was affirmed. Judge

Widener in the present case presented the following analysis of

Shenker:

. . . Both the holding of the Third Circuit and the

Supreme Court are entirely consistent with the

10

wording of the statute . . . even discounting the

two Shenker abstentions, the vote at the very best

for the petitioner was four for and two against

if we count the abstentions as votes against granting

the petition. It is at once apparent that four to

two is a majority of those judges not disqualified,

and so the fact situation presented to the Supreme

Court in Shenker is the same as presented to us

here. Since the Shenker case offered a perfect

opportunity for the Supreme Court to adopt the

view the majority now does, and it did not do so,

I suggest that, because the adoption of the majority

view here would have changed the result of the

Shenker case, the Supreme Court has rejected the

position the majority now embraces. . . . [712 F.

2d at 909-910.]

If Judge Widener’s analysis is incorrect, then the Supreme

Court has not in fact decided the issue. Since, for reasons argued

in section I., the matter is one of importance in federal

jurisprudence, it should be authoritatively resolved.

CONCLUSION

Wherefore, petitioners respectfully pray that a writ of

certiorari be granted.

Respectfully submitted,

SIDNEY BLUM

Attorney for Petitioners