Petition — Daniel v. Pettway

g 3 - 1 802 Otfice - Supreme Corr us

IN THE APR 30 1984

SUPREME COURT OF THE UNITED STATES

ALEXANDER L. STEVAS. |

CLERK

October Term, 1983

No.

CHARLES L. DANIEL, et al.,

Petitioners,

vs.

RUSH PETTWAY, et al.,

Respondents,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Respondent,

AMERICAN CAST IRON PIPE COMPANY

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Ralph E. Coleman

2175 11th Court South

Birmingham, Alabama 35205

(205) 939-0444

Counsel of Record for Petitioners,

Charles L. Daniel, et al

Ronald L. Spratt

1929 North Third Avenue North

Smith Yowers, Suite 3200

Birmingham, Alabama 35203

(205) 251-7180

Attorney for Petitioners,

Charles L. Daniel, et al

OF COUNSEL:

COLEMAN & COLEMAN

2175 lth Court S ‘th

Birmingham, Aiaba.iia 35205

(205) 939-0444

i

QUESTIONS PRESENTED FOR REVIEW

1. Did the court below err in failing to enforce the mandate of

Pettway v. American Casi iron Pipe Company, 576 F.2d. 1157

(Sth Cir. 1978), cer. denied, 439 U.S. 1115 (1979) and Pettway v.

American Cast Iron Pipe Company, 494 F.2d. 211 (Sth Cir. 1974)

and in sanctioning a consent settlement approved by the district

court which contained no “opt out” provisions as mandated in

the cases enumerated above?

2. Should the supervisory power of the court below have been

invoked to enfoce the “opt out” procedures outlined by the Fifth

Circuit to assure class members due process of law?

3. Did the District Court err in advising the objectors to the

proposed consent decree to consult with Attorney Wiggins, the

class attorney on objections to the proposed decree and his

conduct in consulting with the attorney for the defendant on

how to meet these objections and did this action constitute a sell-

out, compromise or collusion to such an extent the court should

have provided separate counsel and created a sub-class for the

protection of this definable minority?

4. Were the petitioners denied even minimum due process of

law by the District Court’s failure to insist that .he proponents of

the settlement offer any proper witnesses and any testimony,

especially expert testimony, as to the economic factors

considered in finding the settlement to be fair, just, and

reasonable thereby denying the objectors any right to confront

witnesses or to conduct cross-examination, with the result being

that the burden of proving the settlement to be unfair, unjust and

unreasonable being improperly sh fed to the objectors, also in

violation of due process of law?

5. Did the District Court deny the objecting class members

due process of law by improperly shifting the burden of proof to

the objecting class members and improperly considering as

evidence economic facts proffered by the class attorney denying a

right of cross-examination to petitioners?

LIST OF PARTIES

The parties in the court below were Charles L. Daniel, et al.',

Rush Pettway, et al.*, Equal Employment Opportunity’, and

American Cast Iron Pipe Company‘.

'Charles L. Daniels; Lewis Spratt, Sr., Henry Goodgame; Henry Arnold, Jr.;

James Barnes; Elijah Brown: Willie Brundidge; Mose Bunch; Robert Caldwell;

William Caldwell; Robert Cannon; Melvin Carson, Rosie Catlin, Willie Curry,

Ed Dancy. Jr.; Carl Edwards: Leon Elliott’ Randolph Ellis, Fuchue Anderson;

Willie Harper, Hattie Hopkins; Nathaniel Howard, Eddie Huggins, Johnnie

Hughes. Fred Jemison; Rufus Johnson; Laura Kimbrough, Hubert Moore,

Henry O'Neal: Theodore Peoples; Willie Perdue, William Pollard; Booker T

Powell; David Powers; Farnest Rich; Lemmie Ruffin; William Spencer, Estelle

Allen: Joe Steel, Jr. Zonnie Stuckey; Andrew Thomas, Melvin Turner, Eugene

Williams, Raymond Williams Jerry Zorns, Erwin Callens, Sr., Willie Blue;

Henry Rice; S. W. King, Jr.; Earl Murray; Jim Amison, Jr.; Peter J. Wrenn®;

Benjamin Shorter: Melvin Brown; Melvin C. Story; M. L. Walls; Calvin C

Johnson: John Jenkins; Thomas M. Phillips; Bruce Square....... Plainuflt-

Appellants

*Named plaintiff in 1966

>Rush Pettway, David Jordan, Alex Fitts, and the class of black employees of

the American Cast Iron Pipe Company .............+00+06+ Respondents

‘American Cast Iron Pipe Company............0500eeeeeeee Respondent

“Equal Employment Opportunity Commission ..............+.- Intervenor

TABLE OF CONTENTS

Questions Presented for Review ............006:

SRG Fe CRS ve cacrcvede che keeceeneewonns

Se EE, oa cae cdviedesbe Ov ehbeaake

Reference to Findings of Fact and Conclusions of

Law in Court Below and Report of | ith Circuit

Statutory Provision Conferring Jurisdiction ......

Constitutional Provision and Statutes Involved ...

SAE OE OE EN oc ene ced neesa teen

Reasons for Granting Writ:

PATER CHEE CIGD a ook. v6 8b t6 866008040 OD

RORSMSN TOO TWO os vncde cucssveccewenesen

NE Sacks bo oh bb ole ae See ee

eee ee oe

(Appendix submitted separately bound and indexed)

iv

TABLE OF AUTHORITIES

Cases Page

Bauman v. United States District Court, 557 F.2d. 650 ....20

(9th Cir. 1977).

Daniel v. American Cast Iron Pipe Company, 721 F.2d. 315 2

(11th Cir. 1983).

Dosier v. Miami Valley Broadcasting Corp., 656 F.2d. 1295 20

(9th Cir. 1981).

East Texas Motor Freight System, Inc. v. Ridreguez, 431 ..17

U.S. 395, 52 L.Ed. 453, S.CL. 1984 (1977).

Four Seasons Sec. v. Law Litigation, 502 F.2d. 834 ....... 15

(10th Cir. 1974).

Gen. Tele. Co. v. Southwest v. Falcon, 547 U.S., 147, 72 ..17

L.Ed. 2nd. 740, 102 S.Ct. 234 (1982).

Gonzales v. Cassidy, 474 F.2d. 67 (Sth Cir. 1973) ......... 15

Grigsby v. North Miss. Medical Center, 586 F.2d. 417..... 20

(Sth Cir. 1978).

Grunin v. International House of Pancake, 513 F.2d. 114..13

(8th Cir.) cert. denied, 423 U.S. 864 (1975).

Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 2d. 2217

(1940).

Holmes v. Continental Can Co., Inc., ...... 13,14,16,18,20,21

706 F.2d. 1144 (11th Cir. 1983).

International Brotherhood of Teamsters v. United States ..\9

43! U.S. 324 (1977).

Lachappelle v. Owen Illinois, 513 F.2d. 286 .........0005 20

(Sth Cir. 1975)

Vv

Laskey v. International Union United Auto,..........064. 20

638 F2d. 964 (6th Cir. 1981).

Nyzen vy. Kissinger, 70 F.R.D. 656 (N.D. Cal. 1975); ...... 17

app. dismissed 602 F.2d. 925 (9th Cir. 1979).

Parker v. Anderson, 667 F.2d. 1204 (Sth Cir. 1982) ....... 22

Penson v. Terminal Transport Co., 667 F.2d. 1204.. 20,21,22

(Sth Cir. 1982)

Pettway v. American Cast Iron Pipe Co.,.......4.. 1,7,18,22

494 F.2d. 211 (Sth Cir. 1974).

Pettway v. American Cast Iron Pipe Co., . 1,7,12,13,15-18,21,22

(Pettway IV) 576 F.2d. 1157 (Sth Cir. 1974).

Pettway v. American Cast /ron Pipe Co., .......06045. 7,8,10

681 F.2d. 1269 (11th Cir. 1982).

Phillip v. Klassen, 502 F.2d. 362, 163 U.S. App. D.C. ..... 17

360 (1974); cert. denied 419 U.S. 996 (1974).

Plammer v. Chemical Bamk ....cccccccccccceces 13,14,15,20

668 F.2d. 654 (2nd Cir. 1982).

Officers for Justice v. Civil Service Commission,....... 21,22

688 F.2d. 615 (9th Cir. 1982).

Twyman v. Rockville Housing Authority,..........00606 17

99 F.R.D. 314 (D.C. Md. 1983).

United States v. City of Miami, Florida,...............6. 15

614 F.2d. 322 (Sth Cir. 1980).

United States v. United States Steel Corp., ........660055 20

520 F.2d. 1043 (Sth Cir. 1975). cert. denied

429 U.S. 817 (1977).

West Virginia v. Chas. Pfizer Co., 440 F.2d. 1079......... 22

(2nd Cir. 1971); Affirmed 404 U.S. $48 (1971).

vi

Wetzel v. Liberty Mutual Ins. Co., 508 F.2d. 239,......... 20

(3rd Cir. 1975).

STATUES

Fifth Amendment — Constitution of the United States ..... 2

EM Era dabewds be besbecccesesvecedeess 2,3

Rule 23 Federal Rules of Civil Procedure..........3-6,12,13

OTHER AUTHORITIES

Rosen; Title VII Classes and Due Process to (b) (2) or ....21

not to (b) (3), 26 Wayne Law Review 919 (1980).

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

No.

CHARLES L. DANIEL, et al.,

Petitioners

VS.

RUSH PETTWAY, et al.,

Respondents

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Respondent

AMERICAN CAST IRON PIPE COMPANY

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

TO THE HONORABLE, CHIEF JUSTICE OF THE UNITED

STATES AND THE ASSOCIATE JUSTICES OF THE

SUPREME COURT OF THE UNITED STATES:

Your petitioners, Charles L. Daniel, ct al., respectfully pray

that a writ of certiorari be issued ou. of and under the seal of this

court to review the judgment of the United States Court of

Appeals for the Eleventh Circuit rendered on the 21st day of

November, 1983, which judgment affirmed the District Court

Decision that the Respondent's consent settlement was fair,

reasonable and adequate.

The timely application for rehearing in the United States Court

of Appeals for the Eleventh Circuit was denied without an

opinion on the ai day of January, 1984.

0

2

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Eleventh Circuit has been reported at 721 F.2d 315, and is

attached herto in Appendix A, infra, pp. A-36 - A-39.

The previous opinion of the Trial Court, the United States

District Court of the Northern District of Alabama, Judge

Seybourn H. Lynne has not been officially reported but is

attached hereto in Appendix A, infra, pp. A-3 - A-35.

JURISDICTION

The judgment of the United States Court of Appeals for the

Eleventh Circuit was entered on the 21st day of November, 1983,

and is annexed hereto in Appendix A, infra, pp. A-1 - A-2.

A timely petition for rehearing was denied on the Bth day of

January, 1984, and the judgment of the United States Court of

Appeals for the Eleventh Circuit thereon is attached hereto in

Appendix A, infra, pp. A-40.

The statutory provision believed to confer jurisdiction upon

this Court to review the judgment of the United States Court of

Appeals of the Eleventh Circuit rendered the 28th Day of

January, 1984, is 28 U.S.C. 1254 (1). 30

CONSTITUTIONAL PROVISION INVOLVED

The fifth amendment to the United States Constitution

provides in pertinent part:

No person shall . . . be deprived of life, liberty, or

property, without due process of law; nor shall private

property be taken for public use, without just

compensation.

STATUTE INVOLVED

The statutory provision involved in this proceeding is 42

U.S.C. § 2000e-5(g) which provides as follows:

If the court finds that the respondent has intentionally

engaged in or is intentionally engaging in an unlawful

3

employment practice charged in the complaint, the court

may enjoin the respondent from engaging in such

unlawful employment practice, and order such

affirmative action as may be appropriate, which may

include, but is not limited to, reinstatement or hiring of

employees, with or without back pay (payable by the

employer, employment agency, or labor organization, as

the case may be, responsible for the unlawful

employment practice), or any other equitable relief as the

court deems appropriate. Back pay liability shall not

accrue from a date more than two years prior to the filing

of a charge with the Commission. Interim earnings or

amounts earnable with reasonable diligence by the

person or persons discriminated against shall operate to

reduce the back pay otherwise allowable. No order of the

court shall require the admission or reinstatement of an

individual as a member of a union, or the hiring,

reinstatement, or promotion of an individual as an

employee, or the payment to him of any back pay, if such

individual was refused admission, suspended, or

expelled, or was refused employment or advancement or

was suspended or discharged for any reason other than

discrimination on account of race, color, religion, sex, or

national origin or in violation of section 2000e-3(a) of this

title.

Rule 23. Class Actions

(a) Prerequisites to a Class Action. One or more members of a

class may sue or be sued as representative parties on behalf of all

only if (1) the class is so numerous ‘hat joinder of all members is

impracticable, (2) there are questions of law or fact common to

the class, (3) the claims or defenses of the representative parties

are typical of the claims or defenses of the class, and (4) the

representative parties will fairly and adequately protect the

interests of the class.

(b) Class Actions Maintainable. An action may be maintained as

a class action if the prerequisites of subdivision (a) are satisfied,

and in addition:

4

(1) the prosecution of separate actions by or against

individual members of the class would create a risk of

(A) inconsistent or varying adjudications with respect to

individual members of the class which would establish

incompatible standards of conduct for the party

opposing the class, or

(B) adjudications with respect to individual members of

the class which would as a practical matter be dispositive

of the interests of the other members not parties to the

adjudications or substantially impair or impede their

ability to protect their interests; or

(2) the party opposing the class has acted or refused to act on

grounds generally applicable to the class, therby making

appropriate final injunctive relief or corresponding

declaratory relief with respect to the class as a whole or

(3) the court finds that the questions of law or fact common to

the members of the class predominate over any questions

affecting only individual members, and that a class action is

superior to other available methods for the fair and efficient

adjudication of the controversy. The matters pertinent to the

findings include:

(A) the interest of members of the class in individually

controlling the prosecution or defense of separate

actions; (B) the extent and nature of any litigation

concerning the controversy already commenced by or

against members of the class; (C) the desirability or

undesirability of concentrating the litigation of the claims

in the particular forum; (D) the difficulties likely to be

encountered in the management of a class action.

(c) Determination by Order Whether Class Actions to be

Maintained; Notice; Judgment; Actions Conducted Partially as

Class Actions.

(1) As soon as practicable after the commencement of an

action brought as a class action, the court shall determine by

order whether it is to be so maintained. An order under this

5

subdivision may be conditional, and may be altered or

amended before the decision on the merits.

(2) In any class action maintained under subdivision (b)(3),

the court shall direct to the members of the class the best

notice practicable under the circumstances, including

individual notice to all members who can be identified

through reasonable effort. The notice shall advise each

member that (A) the court will exclude him from the class if

he so requests by a specified date; (B) the judgment, whether

favorable or not, will include all members who do not request

exclusion; and (C) any member who does not request

exclusion may, if he desires, enter an appearance through his

counsel.

(3) The judgment in an action maintained as a class action

under subdivision (b)(1) or (b)(2), whether or not favorable to

the class, shall include and describe those whom the court

finds to be members of the class. The judgment in an action

maintained as a class action under subdivision (b)(3),

whether or not favorable to the class, shall include and

specify or describe those to whom the notice provided in

subdivision (c)(2) was directed, and who have not requested

exclusion, and whom the court finds to be members of the

class.

(4) When appropriate (A) an action may be brought or

maintained as a class action with respect to particular issues,

or (B) a class may be divided into subclasses and each

subclass treated as a class, and the provisions of this rule shall

then be construed and applied accordingly.

(d) Orders in Conduct of Actions. In the conduct of actions to

which this rule applies, the court may make appropriate orders:

(1) determining the course of proceedings or prescribing

measures to prevent undue repetition or complication in the

presentation of evidence or argument; (2) requiring, for the

protection of the members of the class or otherwise for the fair

conduct of the action, that notice be given in such manner as the

court may direct to some or all of the members of any step in the

action or of the proposed extent of the judgment, or of the

6

opportunity of members to signify whether they consider the

representation fair and adequate, to intervene and present claims

or defenses, or otherwise to come into the action; (3) imposing

conditions on the representative parties or on intervenors; (4)

requiring that the pleadings be amended to eliminate therefrom

allegations as to representation of absent persons, and that the

action proceed accordingly; (5) dealing with similar procedural

matters. [The orders may be combined with an order under Rule

16, and may be altered or amended as may be desirable from time

to time.

(e) Dismissal or Compromise. A class action shall not be

dismissed or compromised without the approval of the court, and

notice of the proposed dismissal or compromise shall be given to

all members of the class in such manner as the court directs.

7

STATEMENT OF THE CASE

This is the sixth appeal of this case before the Eleventh Circuit

and its predecessor, the Court of Appeals for the Fifth Circuit.

The history of the litigation is fully stated in its last previous

appearance, Pettway, et al. v. American Cast Iron Pipe Co., 681

F.2d 1259 (11th Cir. 1982). Originally the trial court found the

existence of racial discrimination in the employment and

promotion practices of the defendant. The court granted an

injunction and then declined to find any damages in favor of the

plaintiff class. Upon appeal, the Fifth Circuit Court of Appeals

remanded for a determination of back pay, 494 F.2d 211, leaving

open, of course, the possibility of a settlement between the

parties. Such a proposed settlement was recommended by the

class representatives and their counsel, in a sum amounting to

approximately $1,000,000.

There were objections and an appeal to the Fifth Circuit Court

of Appeals who disapproved the consent settlement and stated

we further hold that on remand the district court must

provide those claimants who decide to opt-out of the

settlement with an opportunity to assert their individual

claims in this action. Pettway /V, 576 F.2d at 1220. Such

claimants must be permitted to exclude themselves from

the class and must be given an opportunity to prove

entitlement to a larger individual award in the same court

that hears the claims of the class. 706 F.2d 1220 (1978)

A substantial number of the members of the class had accepted

checks mailed out by the defendant in accordance with the

proposed settlement. The court in Pettway IV further opined:

Of course, each of the 399 awa.dees who opted into the

settlement should be provided notice of their right to

disaffirm their award and participate in further back pay

proceedings. This notice should fully explain the

awardee’s rights and the proper procedures for exercising

them.

After Pettway IV the district court and parties proceeded to

settle the injunctive aspect of the action and in attempting to

settle the back pay aspect ordered in 1971 were unable to agree.

The defendant desired to make an offer of judgment to members

of the class, and the court appointed a special master where the

individual had to establish his entitlement. The class appealed

and the Eleventh Circuit in Per*way v. American Cast Iron Pipe

Company, 681 Fed.2d 1259 (1982) (certiorari pending) reversed

the district court and ordered settlement on a classwide basis.

On remand the parties shortly thereafter arrived at a tentative

settlement and began meeting and notifying the class of the

proposed classwide settlement for $3,983,401.91 in satisfaction of

all racial discrimination. The consent settlement and notice did

not provide an “opt out” provision as mandated in Pettway IV

supra nor had the court and parties provided the 399 a right to

disaffirm their award and participate in further back pay

proceedings (these were meted out $500 each without regard to

the amount of discrimination.)

The objectors appealed the district court's finding that the

consent decree was fair, adequate and reasonable. The Eleventh

Circuit addressed none of the issues presented but after a history

of the case summed up appellant's argument as follows, “trey did

not receive amounts in the proposed distribution equal to

comparable members of the cluss.” The parties in their notice to

members of the class advised any person who might object as

follows:

The attorney representing the class is available to assist

you... He will also assist any member of those who

objects to the settlement by providing advice on the

proper procedure to follow in presenting such objections.

The 110 objectors filed their objections but contrary to the

intent of the notice, Robert L. Wiggins, Jr , attorney for the class

according to his accounting to the court (R. 146) was meeting

with Acipco’s attorney, Pat Logan, to “sell out” those who

objected. On April 22, 1983, the class attorney “reviewed the

Status of objection at the courthouse; talked to Logan, April 26,

1983. Review objections and draft joint motion to require

disclosure of facts by objectors, draft letter to Logan

summarizing objections by categories—5 page letters to April 27,

9

1983 .. . prepare and meet with Pat Logan on approach to

objections.” (emphasis supplied) (R. 146)

The objectors had requested the court to allow separate

counsel, but the court had taken no action on the several requests

and advised the objectors that it would award no fees to the

attorney for objectors. The constitutional guarantee of due

process of representation had not only been breached but their

counsel, contrary to ethics, as well as our adversary system was

plotting with the defendant against their interest. The court may

not have been aware of this at the time of its occurrence. Attorney

Wiggins filed his supplemental affidavit with the court showing

the misconduct on June 23, 1983, on the same day the court

issued and approved his finding of facts and his actions against

members of the class in conjunction with their adversary were set

forth in his affidavit was commended and he was compensated an

additional $50,000.00.

Your petitioners would be remiss in not taking issue with the

court's finding of fact and conclusion of law. Ihe district court

judge included many facts which were not of record at the

fairness hearing nor the subject of any judicial scrutiny i.e.

meetings held at church, votes of the individual members at

meetings and conclusions drawn therefrom. On one occasion in

the appendix he notes that an objector was either absent or not

listening at one of the class meetings several weeks earlier. The

court was also privy to many of the meetings with the class

attorney and the class at the attorney's office or, at least, his facts

indicate as much. The court also in its conclusion takes liberties

statistically to minimize the petition of those filing objections.

The class initially contined some twenty-two hundred (2,200) and

had been reduced to eight hundreu and thirty three (833) who

would participate in bck pay award. The court finding of fact that

less than five per cent objected when in the record page 4, the

court noted “some hundred ten (110) objections have been

received.” The court also, contrary to presumptions under the

law, assumed that all who did not object were in accord and

agreement with the whole settlement.

The court fails to note negative factors in its finding i.e. that the

E.E.O.C. failed to sign the agreement nor signifying accord as to

10

its adequacy or fairness. The court also fails to note that no

member of the class or class representative testified in favor of the

proposed consent settlement. Joe Marbury, a representative of

the class Committee for Equal Job Opportunity testified in

Opposition to the settlement, the way it was negotiated and

presented to the class and the manner in which awards were

granted i.e. one man was given ten thousand dollars ($10,000) for

praying. There were ten witnesses who testified and the court

after an initial statement in opening recessed unti! 1:30 and

adjourned at 4:25 p.m. Although the court in its record of fact

implies that objectors were provided ample time stated that he

wanted the matter brought toa close and advising “you've got ten

more minutes”. (F.H. 95)

The purported computer print outs on which the court relies to

substantiate the heresay affidavits which were never received

were examined by your writer and the material contains no

conclusions nor calculations only parties’ names, race and job

class. Mr. Wiggins advised your writer that there had been no

written opinion arrived at and recieved by the “expert” who was

to receive $175,000. The court was advised that the computer

printouts had not been furnished as requested and the expert

proffered by the objectors was brushed aside by the court.

The class representatives were not representative of all the

class members. The Committee for Equal Job Opportunity

(C.E.J.E.) removed all (being part of the 399) who cashed their

checks in 1975 from the committee although they were some of

the original members of the committee when it numbered less

than ten.

The Equal Employment Opportunity Commission (E.E.0.C.)

was a party to the action having appealed to the Eleventh Circuit

in 1982 to reverse the trial court for deleting them from the case.

Pettway v. American Cast Iron Pipe Company, 681 F.2d 1269

(llth Cir. 1982). The E.E.0.C. was not a party to the consent

seti!cuient nor a signator but after an appeal noted that the

settlement appeared on its face to be fair. This was noted by the

Eleventh Circuit in its opinion at page 316.

In the fairness hearing the defendant offered no evidence only

affidavits which were objected to by petitioner as to the proposed

settlement being fair, reasonable and adequate. No ruling was

made as to the reception of this offer by the trial judge and this

was included in the record on appeal by supplementing the

record.

The parties gave notice to the class of its proposed settlement

and attached form objection to be filed by persons having

objection. Objectors were advised to see the class attorney

Wiggins since 110 objections were filed. Prior to the fairness

hearing while he was obliged by notice to meet with the objectors

Attorney Wiggins was meeting and conferring with the attorney

for the defendant Pat Logan on “approach to objection.” As

early as February 24, 1983, the class attorney noted “dissention in

class and distribution formula.” The court noted the possible

conflicts within the class but took no steps to create a subclass or

enter an order allowing the objectors to “opt out” of the proposed

settlement.

The Court of Appeals had mandated that the court provide an

“opt out” right to persons who might disagree with any future

settlements and also that as to the persons who cashed their

checks in 1975. The court ordered established a procedure

whereby they might repay the money or place security for monies

received in the 1975 settlement offer thus allowing them to “opt

in the class. No procedure was established by the court although

the defendant had made a motion for repayment of the money or

posting pursuant to the mandate. These provisions were

inferentially approved by the Supreme Court in its denial of

certiorari.

The court on May 12, 1983, issued its final judgment that the

consent decree was fair, reasonab’ ard adequate. A Motion for

Rehearing was filed on May 23, 1983 and the court at the time of

rendering its finding of fact and conclusion of law on June 23,

1983, overruled the Motion for Rehearing. Notice of appea! was

filed by the objectors, Charles L. Daniel and Estelle Allen on July

22, 1983 and the cases were consolidated on appeal. The

obdjectors appealed to the Eleventh Circuit and on November 21,

1983, the Eleventh Circuit Court of Appeals in its opinion at 721

F.2d 315 (11th Cir. 1983) upheld the trial court's ruling and found

the consent settlement was “fair and reasonable.” The appellants

moved for an en banc rehearing which was denied on January2% 40

1984 (Appendix, pp. A-40), and appellants petition at this time

for certiorari to the Supreme Court of the United States.

12

REASONS FOR GRANTING THE WRIT

ISSUE I

Whether the district courts approval of the consent settlement

notice and the conduct of the class representative, class counsel

and court so abridged the objector’s rights of due process and to

render the same collusive and cause the “fairness hearing” to

amount to “boiler plate” approval of an inadequate award and a

‘sell out” of a large definable minority, departing to such an

extent that the supervisory powers of this court be invoked by

certiorari to define the accepted and usual course of judicial

proceeding.

The fairness hearing conducted and noticed by the district

court provided no “opt out” procedure for the class objectors

which the court in Pettway v. American Cast Iron Pipe Company

(Pettway IV) referred to as “subclass members” noting the class

was divided. The total receiving awards were less than 800, the

number noted in Pettway IV was 399. The notice itself advised

any objector he would be subject to cross-examination on the

fairness hearing. The class objectors were advised to see Mr.

Wiggins, the class attorney. After ob‘ections had been filed this

same attorney Wiggins met and talked with defendant

ACIPCO’'s counsel Logan summarizing the objector and

ultimately “meet with Pat Logan on approach to objection. 10.9

hours.” (pp. A-42)

At the hearing the court allowed the class representative and

defendant to offer affidavit of economic data to substantiate that

the proposed settlement was fair, reasonable and adequate. The

class attorney filed his own affidavit as to the settlement being

fair, reasonable and adequate although the proposed settlement

approved a fee of $175,000 to the expert. There have been several

attempts to arrive at consent settlements and how to treat the

competing of the members of the case.

“Although settlement is the preferred method of resolving Title

VII suits, the class action settlement process is “more susceptible

than adversarial adjudications to certain types of abuse.”

Pettway vs. American Cast Iron Pipe Co., 576 Fed. 2nd 1157,

1169 (Sth Cir. 1978) (Pettway IV). Federal Rule of Civil

13

Procedure 23(c) mandates judicial approval of all class action

settlements and that requirement is manifested in both

substantive and procedural protections afforded to absent class

members . . .” the law accords special protections, primarily

procedural in nature to individuals class members whose

interests may be compromised in the settlement process “Pettway

IV 576 Fed. 2nd 1326, 1330 (Sth Cir. 1977). The fact that

appellant objectors were denied both procedural and thereby

substantive protection previously guaranteed by the Court of

Appeals is the basis for this writ of certiorari.

Holmes vs. Continental Can reaffirms that appellate courts:

“must have a basis for judging the exercise of the district judge’s

discretion.” Cotton vs. Hinton, supra., the proponents of class

action settlements bear the burden of developing a record

demonstrating that the settlement distribution in fair,

reasonable, and adequate. Grunin vs. International House of

Pancakes, 513 F. 2d 114, 123 (8th Cir.) cert. denied 423 U.S. 864,

965 Ct. 124, 46 L.Ed. 2d 93 (1975).

The Holmes case also notes that when a settlement explicitly

provides for preferential treatment for the named plaintiffs in a

class action, a substantial burden falls upon the proponents of the

settlement to demonstrate and document its fairness. The Court

of Appeals noted the similarity to Pettway IV 576 F. 2d at 1217

where the court ruled on a prior dispute in the allocation of a

settlement fund. “The court should not allow a majority, no

matter how large, to impose its decision on the minority . . .

Objection by a few dissatisfied class members should trigger close

judicial scrutiny to ensure that the burden of settlement is not

shifted arbitrarily to a small grou’ >f class members.” Plummer

vs. Chemical Bank , 668 F. 2d 654 (2nd Cir. 1582) states that “such

disparities must be regarded as prima facie evidence that the

settlement is unfair to the class, and a heavy burden falls on

those who seek approval of such a settlement.”

The proponents of the settlement in this case have clearly failed

to carry their heavy burden to overcome objectors prima facie

case. There was simply no evidence offered at the hearing in

support of the settlement. The only evidence offered in support of

the scitlement were affidavits of Plaintiff's attorney Robert

14

Wiggins, Jr. et al. explaining reasons why in his opinion the

settlement was fair, just, and reasonable and explaining his

expert's calculations (F.H. 5, 6) and affidavits of the proposed

experts of the defendants. Plaintiff's objectors properly objected

to this injection of hearsay testimony. The district court's

continuing failure to rule on this objection and failure to admit

the same gave no basis for its use and was error sufficient for

reversal, and should have in fact resulted in reversal. With no

ruling whatsoever, objectors were denied due process in that they

had no way of knowing what evidence was being considered in

support of the settlement, and were denied the opportunity to

intelligently contest such evidence in the best possible manner i.e.

by cross examination that is by confronting the witness and

discovering the basis of their opinion.

In Holmes vs. Continental Can Co., at 1148 the Court of

Appeals, 11th Circuit, notes that they limit their inquiry to the

record of the fairness hearing. Any advocate or party relying on

this standard of review would expect substantial evidence to be

produced at such a hearing. As in Pettway IV, the fundamental

problem facing us in our task today is the absence of an

adequately developed factual record “576 F. 2d at 1183. Holmes

vs. Continental Can. Co., at 1150. The fact that numerous

materials were considered in judges's chambers both before and

after the hearing does not provide an adequate record for review.

Such procedure heightens the impression that the fairness

hearing is a mere rubber stamping used to rama settlement down

the throats of unwilling objectors., Holmes vs. Continental Can.

Co. 706 at 1150.

Even if the affidavits were in the mind of the court entered in

the open court in the fairness hearing, since these were the only

evidence offered by proponents, reversal should follow.

“Findings and conclusions should be made with respect to every

controverted settlement. Moreover, those findings and

conclusions should not be based simply on the arguments and

recommendations of counsel,” Plummer vs. Chemical Bank, 668

F. 2d 654, 659 (2nd Cir. 1982) quoting Pettway IV, 576 F. 2d at

1169. Further “when the district court approves a settlement

which is not based upon well reasoned conclusions arrived at

15

after a comprehensive consideration of all relevant factors” its

decision will not survive appellate review.” Under its prior

analysis in Pettway IV, the court should not have allowed this

decision to survive appellate review.

As the Plummer case again quotes Pettway IV 576 at 1169,

“The interest and of lawyer and class may diverge, as may the

interests of different class members and certain interests may be

wrongfully compromised, betrayed, and sold out without

drawing the attention of the court.” Such a sell-out is signalled

here where there is simply no evidentiary foundation in support

of the proposed settlement, except the erroneous reliance on

counsel's opinion. Reliance on counsel's opinion tends to render

the district court captive to the attorney and fosters rubber

stamping by the court rather than the careful scrutiny which is

essential for judicial approval. Even though statistics are

competent evidence, they should not be so when they are

“incomplete data.” United States vs. City of Miami, Fla., 614 F.

2d 1322 at 1352.

Certainly we did not expect the district judge to convert the

fairness hearing into a full-blown trial on the merits. However,

class action settlements should accept affidavits as evidence only

after careful scrutiny. There was no such careful scrutiny in the

case before us. At any rate, the alfidavits were never properly

introduced, and cannot be considered as evidence. Nor should

the objectors have been under any burden to cross examine a

witness, such as attorney for plaintiffs-appellee when he had not

made a prima facie case by offering any testimony whatsoever.

The apparent justification of the a/torney and the committee for

withholding all information whi... oever from the rest of the

plaintiff class, supposedly a danger that such information would

aid the defense is not in accord with our rules of discovery. A

failure to satisfy the requirement that the representative parties

fairly and adequately protect the interests of the class “produces a

defect of constitutional dimension, which makes the judgment

vulnerable to be reopened on a collateral attack.” Gonzalez vs.

Cassidy, 474 F. 2d 67 (Sth C:r. 1973); in re Four Seasons Sec. Law

Citigation, 502 F. 2d 834 (10th Cir. 1974).

16

The proposed consent decree, notice and the fairness hearing

were all deficient to such an extent that the cumulative effect was

to deny due process of law to the objectors.

Many deficiencies of due process may be bent, compromised

or narrowed, but the attorney for a party should ethically and

professionally represent only the interest of his client or clients.

This principal is true without citation or authority or our

adversary system has failed. The counsel for the parties should

not have engaged in conduct that might even take on the

appearance of collusion. The district court had been forewarned

by the appeals, Pettway IV 576 Fed. 2d 1157, 1169.

The interest of lawyer and class may diverge, as may the

interests of different class members and certain interests

may be wrongfully compromised, betrayed or sold out

without drawing the attention of the court,” Pettway 576

F. 2d 1157, 1169

For the numerous breaches noted herein the courts writ of

certiorari should issue to grant due process to petitioners,

reconcile the conflicts in the various circuits and to insure that the

mandates of the appellate courts be accorded deference when the

matters are implemented in the district court.

The writ of certiorari should be issued in this case for the

reasons that an important question of federal law which has not

been, but should be, settled by the court and the split in the

circuits which is pronounced when the same case receives

different treatment on a change in the circuits. The failure by the

district court to follow the mandate of the Circuit Court of

Appeals and the Eleventh Circuit's failure to enforce the “opt

out” provision and implement the opting in of the 399 who

cashed their checks had mandated and even reiterated in Pettway

III and Pettway IV the “opt out” opportunity to be provided

noting the conflict and dissatisfaction that might arise in the

attempt to settle the case. The Eleventh Circuit, by quoting this as

authority in Holmes v. Continental Can Company (supra)

adopted the Fifth Circuit holdings as to opting out and due

process for individual claimants in the class.

17

The conflicts of interest and the divided cohesiveness of the

class qua the counsel so permeated the proceedings that the

requirements of due process for adjudication taken in the name

of the 399 previously identified and those objecting to the

procedures and adequacy of the settlement were substantially

breached. Phillip vy. Klassan, 1974, 502 Fed.2d 362, 163 U.S.

App. D.C. 360 cert. denied 95 S.Ct. 309; Nguzen v. Kissinger, 70

F.R.D. 656 (D.C. Cal. 1976); app. dismissed, 602 Fed.2d 925.

This court in Gen. Tele. Co. of Southwest v. Falcon, 457 U.S.

147, 72 L.Ed.2d. 740, 1025 S.Ct. 2364:

We have repeatedly held that “a class representative must

be part of the class and possess the same interest and

suffer the same injury as the class members” East Texas

Motor Freight System Inc. v. Rodriguez, 431 U.S. 395,

§2 L.Ed.2d. 453, 97 S.Ct. (1894) . . . (emphasis added).

The class representative and defendant thwarted “the same

interest" of the class when they failed to hold the “opt in”

procedure suggested by the court of appeals in Pettway V.

American Cas! Iron Pipe Company, 576 Fed.2d 1159 (1978 Sth

Cir.) pg. 1220, ..3. that is the court set up a procedure for the 399

who cashed their checks to return the monies received or post

security for the same. While the court has supported a broad

reading of Rule 23 “they do not justify the jettionsing of the

cardinal principal that a class representative may not head a class

whose interest substantially conflicts with his or her own. East

Texas Motor Freight, Inc. v. Rodriguez” (supra).

The testing for the adequacy of representation was aptly

summed up as to F.R. Civ. P. 23(a) (4) in Twyman v. Rockville

Housing Authority, 99 F.R.D., 314 (1983):

Because absent members of the class would be

conclusively hound by results obtained by

representatives and their attorney due process requires

they be more than proforma representative. c.f.

Hansberry v. Lee, 311 US, 32,61 S.Ct. 115,85 L.Ed.2nd

22 (1940) (emphasis added).

Mr. Wiggins, the class attorney, had the competency to

recognize the problems as to the conflicts within the class as he

had been lead counsel in the Pettway cases since 1975 and

obtained the “opt out” nghts and “opt in” procedure in Pettway

IV.

18

The lower court was not without guidance for as herein

Pettway III (supra) gave explicit instructions and the Fifth

Circuit again in Pettway IV advised the lower court that an “opt

out” right should be provided for persons dissatisfied with their

entitlement and the other 399 who cashed checks be allowed to

come back in as full members of the class not as second class

claimants. Surely ii could not be argued that under Rule 23 the

district court can't require inclusion of an opt out right as noted

in Holmes vs. Continental Can Co. (supra) but the Fifth Circuit

Court of Appeals did not possess the power exercised in Pettway

Ill and Pettway IV.

These clear instructions were not lost or forgotten but were

cited with approval by the Eleventh Circuit in Holmes vs.

Continental Can 706 Fed. 2nd, 1154 (1983) and the irony of the

situation is that Mr. Robert Wiggins, attorney for the class

obtained a reversal of a consent decree for failure to include an

“opt out” right for individuals when he at the same time was co-

author of this settlement where the 5th Circuit had mandated an

opt out provision. This does not speak of equal protection or for

representation, but cries out for redress to fulfill the promises of

those who labored since 1966 to correct the “scourge of

discrimination.”

The decision by the Eleventh Circuit Court of Appeals in this

petition has the unique distinction of being a case wherein there

exists a conflict with the decision of the Fifth Circuit Court of

Appeals in the same case and on the identical proposition of law,

ie. the Fifth Circuit Court of Appeals mandated that a procedure

for persons dissatisfied with any future settlement be established

allowing them to opt out and pursue their claim in the same suit,

Pettway vs. American Cast Iron Pipe Co. 576 Fed. 2nd, 1157 (Sth

Cir., 1978); cert. denied 439 U.S. 115 (1979).

Rule 23 envisions the court making orders to effectuate the

purpose of the rule in line with the “opt out” right urged herein

“Rule 23... In the conduct of actions to which this rule applies

the court may make appropriate orders . . . (2) requiring for the

protection of the members of the class or otherwise for the fair

conduct of the action .. . or of the opportunity of members to

19

signify whether they consider the representation fair and

adequate .. .” This accords with the courts of the various circuits

noting this method of requiring an opt out in b(2) class actions.

The defendant, American Cast Iron Pipe Company, has a

pending petition for certiorari being Supreme Court case number

82-1074 and therein is urged that the court’s proposal of hearing

individual claims by a special master was proper and relied on

language from this court out of /nternational Brotherhood of

Teamsters v. United States, 431 U.S. 324 (1977) and sought to

place the burden of proof on each individual his entitlement to an

award. The defendant would impose on the individual the burden

of going forward to prove his entitlement but does not even

accord him due process by way of dedicated legal counsel in so

complicated a case. Teamster (supra) can not stand for this

proposition for our court surely would not impose so great a

burden without a corresponding guarantee of due process.

Therefore petitioners are unable to see that any distinction can

be found to justify the split of the circuits in the case within the

case, Pettway III; Pettway IV; and Pettway VI (the instant case).

The writ of certiorari should be issued in this case for the

reasons that an important question of federal law exists which

has not been, but should be, settled by this Court and the split in

the circuits on this issue causes different results on identical facts

depending on where the cause of action arises.

ISSUE II

Whether “opting out” of a 23 (b) (2) civil rights class action is

permissible and in certain occasions mandatory where class

members are denied substantive Jue process with the Circuit

Courts of Appeals being divided on this issue which has not but

should be settled by this court.

The United States Supreme Court has not decided the question

of the right of a b(2) class member to opt out of the class and the

permissibility of opting out. The several circuits have split on the

issue and the necessary usage of class action under Rule 23,

Federal Rules of Civil Procedure, to dispose of multiple claims

and defenses mandates the court define the parameters of

20

conserving the courts’ and parties’ energies and expenses with the

deprivation of class members due process rights to a point that

the “fairness hearings” become patently unfair.

The Eleventh Circuit in Holmes vs. Continental Can, 706 Fed.

2nd, 1144 (1983), Judge Vance noted:

(11) The United States Supreme Court has not yet

decided whether opting out of (b) (2) classes is ever

permissible, and the circuit courts of appeals are split on

the issue. Compare Plummer v. Chemical Bank, 668 F.2d

at 657; Dosier v. Miami Valley Broadcasting Corp., 656

F.2d 1295, 1299 (9th Cir. 1981); Laskey v. International

Union, United Automotive; Aerospace & Agricultural

Implement Workers, 638 F 2d 954, 956 (6th Cir. 1981);

Penson v. Terminal Transport Co., 634 F2d 989, 993 (Sth

Cir. 1981); Bauman v. United States Dis:rict Court, 557

F2d 650, 659-60 (9th Cir. 1977). Cases examining the

right to opt out of Title VII class actions brought under

subsection (b) (2) reflect a tension between the policy of

facilitating antidiscrimination class actions and the need

to protect the rights of absent class members. The general

rule in this circuit remains that absent members of (b) (2)

classes have no automatic right to opt out of the lawsuit

and to prosecute an entirely separate action. See Penson,

634 F. 2d at 993; Grigsby v. North Mississippi Medical

Center, Inc. 586 F.2d 457, 461 (Sth Cir. 1978);

LaChappelle v. Owens-Illinois, 513 F2d 286, 288 n. 7(Sth

Cir. 1975); United States v. United States Steel Corp.,

520 F.2d 1043, 1957 (Sth Cir. 1975), cert. denied 429 U.S.

817, 97 S. Ct. 61, 50 L.Ed.2d 77 (1977).

The abuse engendered by the attempts of the several circuits to

balance the rights of individuals with due process and fairness has

been the subject of serious inquiry:

(1)n Wetzel[v. Liberty Mut. Ins. Co., 508 F.2d 239 (3d

Cir. 1975)], the court in part justified its refusal to require

notice for absent members by pointing to the need to

effectuate the policies of Title VII: “Suits brought by

private employees are the cutting edge of the Title VII

21

sword which Congress has fashioned to fight a major

enemy to continuing progress, strer.gth, and solidarity in

our nation, discrimination in employment . . . The

imposition of notice and the ensuing costs often

discourage such suits.”

This passage epitomizes the dilemma spawned by the

growth of Title VII back pay class actions. Courts are

mindful of the fact that traditional (b)(2) certification

policies deprive absent members of due process

consideration, but justify it in the name of the

“overriding” public policy objectives of Title VII and

continue to classify herterogenous (sic) classes under

(b)(2) rather than (b) 3).

The irony here, of course, is that while granting the

class great deference on the substantive and policy issues

in a suit, courts deny many members of the class

procedural fairness.

Rosen, Title VII Classes and Due Process; To (b)(2) or

Not To (b)(3), 26 Wayne L. Rev. 919, 952 (1980)

(footnote omitted).

The courts in the earlier Pettway cases in justifying its previous

orders in Pettway II] and IV to include a right to “opt out” in the

event a member of the class disagreed as to his entitlement ona

settlement in the future reasoned that although the action was

initiated as a Rule 23(b)2 in the back pay aspect it “begins to

resemble a 23(b)3 action” Pettway vs. American Cast Iron Pipe

Company (Pettway III), 41) Fed 2nd, 908 (Sth Cir.) Pertway vs.

American Cast lron Pipe Compan : (Pettway IV’), 576 Fed 2nd,

1157 (1978). Penson vs. Terminal Transport Company, 634 Fed

2nc 994 (Sth Cir.)

The ninth (9th) Circuit Court of Appeals has arrived at a

similar holding in allowing an opt out of a 23 (b)2 class action

reasoning that “given the breadth and nature of the claims

asserted the class allegations in the plaintiff's complaint and the

procedures adopted by the district court it appears clear that this

case was in essence a Rule (23)(b)(3) class action.” Officers for

22

Justice vs. Civil Service Commission, 688 Fed 2nd 615, 634-635

(9th Circuit 1982)

In trying to provide due process rights for individual members

several circuits have allowed an “opt out” procedure justifying

this under the “discretion of the court” as set forth in Holmes vs.

Continental Can Company, 1154, (supra).

This is not to suggest, however, that opt out procedures

have no applicability to the (b) (2) class action. Parties to

a proposed class action settlement may themselves

provide for an opt out procedure by which class members

may exclude themselves from the class and litigate their

claims in the same action or in a separate lawsuit, see,

e.g., Parker v. Anderson, 667 F.2d 1204, 1208 (Sth Cir.).

cert. denied—U.S.—,103 S.Ct. 63, 74 L.Ed.2d 65 (1982):

Penson, 634 F2d at 995: Cotton, 449 F2d at 1333; Wesr

Virginia v. Chas. Pfizer Co., 440 F. 2d 1079, 1982 (2d

Cir.), aff'd by an equally divided Court, 404 U.S. 548, 92

S.Ct. 731, 30 L. Ed.2d 721 (1971), and in appropriate

cases a court may conclude that a proposed settlement

should be disapproved unless the parties agree to sucha

procedure. In Penson \. Terminal Transport Co., the

former fifth circuit held that “although a member of a

class certified under Rule 23(b)(2) has no absolute right

to opt out of the class, a district court may mandate such

a right pursuant to its discretionary power under Rule

23." 634 F.2d at 993. This holding followed from Pettway

Ill, where the court reasoned that Title VII claimants

“dissatisfied with their portion of the (back pay) award

should be allowed to opt out in order to prove that they

were entitled to a larger portion.” 494 F.2d at 263 n. 154.

On remand the district judge entered a final order

providing “a mechanism for subclass members to opt in

or out of the settlement.” 576 F.2d at 1166 n. 2. When the

case once again came before the former fifth circuit,

Judge Goldberg in Pettway IV stated that the court had

“recently commented that opting out of the lawsuit

altogether after a back pay award settlement is not

permitted in 23(b)2) class actions.” Id. at 1220. Judge

23

Goldberg read footnote 154 in Pettway III to require that

“dissatisfied claimants be given an opportunity to prove

entitlement to a larger individual award in the same

lawsuit.”

It is of interest here that the majority here are the individuals

who objected to the $1,000,000 settlement in 1975 and that there

is a reversal in roles. The Court of Appeals, Sth Circuit had

mandated and even reiterated in Pettway III and IV the opt out

opportunity to be provided noting the conflicts and

dissatisfaction that might arise in the attempt to settle the case.

The [Ith Circuit by quoting this as authority in Holmes vs.

Continental Can Company (supra) adopted the Sth Circuit

holdings as to opting out and due process for individual

claimants in the class.

Therefore, petitioners are unable to see that any distinction can

be found to justify the split of the circuits in the case within the

case, Pettway III; Pettway IV; and Pettway VI (the instant case).

24

CONCLUSION

In view of the foregoing, this Court's Writ of Certiorari should

issue to review the judgment of the United States Court of

Appeals for the Eleventh Circuit, reverse the judgments of the

Court of Appeals and the District Court entering such orders as

necessary to effectuate the holdings in Pettway III and Pettway

IV and to assure adequate representation of all members of the

class.

Respectfully submitted,

“)

Laud bow. =

Ralph E. Coleman

2175 11th Court South

Birmingham, Alabama 35205

(205) 939-0444

Counsel of Record for Petitioners,

Charles L. Daniel, et al

Ronald L. Spratt

1929 Third Avenue North

Smith Towers, Suite 3200

Birmingham, Alabama 35203

(205) 251-7180

Attorney for Petitioners,

Charles L. Daniel, et al

OF COUNSEL

COLEMAN & COLEMAN

2175 tith Court South

Birmingham, Alabama 35205

(205) 939-0444

25

PROOF OF SERVICE

1, Ralph E. Coleman, a member of the Bar of this Court as

counsel of record for petitioners here, Charles L. Daniel, et al,

hereby certify that three copies of the above and foregoing

Petition for Writ of Certiorari, together with appendices thereto,

have been served by United States mail, postage prepaid and

properly addressed upon Robert L. Wiggins, Jr., Attorney at

Law, Suite 716 Brown-Marx Building, 2000 Ist Avenue North,

Birmingham, Alabama 35203, Ms. Marcia B. Ruskin, Office of

General Counsel Equal Employment Opportunity Commission,

2401 E. Street, Washington, D.C. 20506, and J. Fredric Ingram,

Attorney at Law, 1600 Bank for Savings Building, Birmingham,

Alabama 35203 on this the 30th Day of April, 1984.

{

‘

Ralph E. Coleman