# Opposition Brief — Martin v. Wilks

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 490 U.S. 755

## Text

| rIce
(3) @) () MAY 19 199

Nos. 87-1614, 87-1639, 87-1668

In The .
Supreme Court of the United States
October Term, 1987

+
JOHN W. MARTIN, et al.,

v. Petitioners,

ROBERT K. WILKS, et al.,
Respondents.

+
PERSONNEL BOARD OF JEFFERSON COUNTY, e¢ al.,

Vv. Petitioners,

ROBERT K. WILKS, et al.,

Respondents.
a

RICHARD ARRINGTON, JR., et al.,
Vv. Petitioners,

ROBERT K. WILKS, et al.,

Respondents.

+

BRIEF IN OPPOSITION TO CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT OF
RESPONDENTS ROBERT K. WILKS, e¢ al.

+

RAYMOND P. Fitzpatrick, JR.
Counsel of Record

P.O. Box 360187
Birmingham, Alabama 35236-0187
(205) 988-5048

QUESTIONS PRESENTED

Is a public employer immune from the discrimina-
tion claims of unconsenting nonminority employees
if it claims to act pursuant to a consent decree
which contemplates race conscious employment
decisions?

Should a consent decree embodied affirmative
action plan be treated as any other affirmative
action plan when a nonparty challenges race con-
scious actions of an employer taken pursuant to the
consent decree as discriminatory and beyond the
scope of permissible affirmative action?

Is a public employer acting within the scope of
permissible affirmative action when it promotes on
a one black to one white basis, makes no findings of
past purposeful promotional discrimination, does
not consider the relative qualifications of the pro-
motional candidates, and does not attempt to use
any job related selection procedure?

PARTIES TO THE PROCEEDINGS BELOW

Private Plaintiffs

Robert K. Wilks
James A. Bennett
Birmingham Association
of City Employees
Charles E. Carlin
Ronnie J. Chambers
Floyd E. Click
Joel A. Day
Lane L. Denard
John E. Garvich, Jr.
Dudley L. Greenway
James W. Henson
Gerald L. Johnson
Danny R. Laughlin
Robert B. Millsap
James D. Morgan
Gene E. Northington
Carlice E. Payne
Howard E. Pope
Vincent J. Vella
Phillip H. Whitley
Marshall G. Whitson
David H. Woodall

Plaintiff-Intervenor
United States of America

City Defendants

Richard Arrington, Jr.
City of Birmingham

Personnel Board
Defendants

Personnel Board of
Jefferson County
Roderick Beddow, Jr.

Joseph W. Curtin
James W. Fields
Patricia Hoban-Moore
James B. Johnson
Henry P. Johnston
Hiram Y. McKinney

Defendant-Intervenors

John W. Martin
Sam Coar
Major Florence
Charles Howard
Ida McGruder
Eugene Thomas
Wanda Thomas

iil

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED......................- i
PARTIES TO THE PROCEEDINGS BELOW...... il
TABLE OF CONTENTS. .......... pecadbeedas haces ili
TABLE OF AUTHORITIES ..................2000- Vv
CITATIONS TO OPINIONS BELOW.............. 1
ERR ee rn 2
STATEMENT OF THE CASE..................... 3
eee esi ehh tah ececkedeseheeoseceeses 7

I. The Court of Appeals Correctly Ruled That
A Consent Decree Does Not Immunize A Defen-
dant From The Discrimination Claims of Non-

A. This Court has already decided that a
Title VII consent decree is akin to a volun-
tary affirmative action plan..............

B. This case involves a different issue and
factual context than that which was not
resolved in Marino v. Ortiz

C. The Courts of Appeals are now cor-
rectly following the Cleveland decision ...

D. The Court of Appeals correctly recog-
nized the fundamental unfairness of bind-
ing a nonparty to an agreement he had no
iad cc widetalinehtieocesnse ccs

II. The Court of Appeals Properly Remanded
With Instructions to Carefully Evaluate the
Race-Conscious Conduct of the Defendants ...

10

12

13

16

iv

TABLE OF CONTENTS-Continued

Page

A. Wygant v. Jackson Board of Education

and Johnson v. Transportation Agency pro-
vide the correct standards to review a pub-
lic employer’s voluntary race-based

OE. ctkccnecenessdenuadaussanuctyes

B. The District Court was properly
directed to subject Birmingham’s race-
based conduct to heightened scrutiny on
EE . . in cecccccsususbeesseeeeeanaeeeens

Ill. If Certiorari is Granted, This Case Pro-
vides an Appropriate Opportunity for a Reex-
amination of Steelworkers v. Weber...........

COMICLAIBIOIN, 2... cc cccccccccccccccccesesscccccses

16

18

v
TABLE OF AUTHORITIES
Page

CASEs:
Alexander v. Gardner-Denver Co., 415 U.S. 36

aba RePhEheSOnbSES ENN ShONGEEEEEAES RS OEEEE HS 10, 11, 12
Connecticut v. Teal, 457 U.S. 440 (1982)........... 15
Culbreath v. Dukakis, 630 F.2d 15 (1st Cir. 1980) ....12
Dennison v. City of Los Angeles Dept. of Water &

Power, 658 F.2d 694 (9th Cir. 1981) ............. 12
Dunn v. Carey, 808 F.2d 555 (7th Cir. 1987)....... 13
Ensley Branch, NAACP v. Seibels, 13 Empl.

Prac. Dec. (CCH) 7 11,504 (N.D. Ala. 1977) ...... 4

Firefighters Local Union No. 1784 v. Stotts, 467
U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483

Fullilove v. Klutznik, 448 U.S. 448 (1980).......... 19

Goins v. Bethlehem Steel Corp., 657 F.2d 62 (4th
Cir. 1981), cert. denied, 455 U.S. 940 (1982)..... 12

W. R. Grace & Co. v. Rubber Workers, 461 U.S.
SIRES a, Re ay oF 9 ee 11

In re Birmingham Reverse Discrimination
Employment Litigation, 37 FEP Cases (BNA)
Ff F SES cls Se 5

In re Birmingham Reverse Discrimination
Employment Litigation, 39 FEP Cases (BNA)
Bee Se is ve ntidudnetnnhddns veces. 2

In re Birmingham Reverse Discrimination
Employment Litigation, 833 F.2d 1492 (11th
Se: ihn bANs64006k nn debn scaneeaberas passim

vi

TABLE OF AUTHORITIES-—Continued
Page

Johnson v. Transportation Agency, 480 U.S. __,
107 S.Ct. 1442, 94 L.Ed.2d 615 (1987)
segaeeeedas cdabbesékemelanensianaea 7, 16, 18, 20, 21

Local No. 93 v. City of Cleveland, 478 U.S. 501,

106 S.Ct. 3063, 92 L.Ed.2d 405 (1986)...... passim
Loving v. Virginia, 388 U.S. 1 (1967).............. 19
Marino v. Ortiz, __ U.S. __, 108 S.Ct. 586, 98

Se: Ge GE, BON, BUMED cccdccccdecdcebeosuce 10
Marino v. Ortiz, 806 F.2d 1144 (2d Cir. 1986)

ere ert ee Rr ere re ee ee 10, 11, 12
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99

S.Ct. 645, 58 L.Ed.2d 552 (1979) ................ 13

Prate v. Freedman, 430 F.Supp. 1373 (W.D.N.Y.)
affirmed mem., 573 F.2d 1294 (2d Cir. 1977),

cert. denied, 436 U.S. 922 (1978) ................ 13
Regents of the University of California v. Bakke,
ee We SE TO onic suncanensedeednecesas 16, 19

Steelworkers v. Weber, 443 U.S. 193 (1979)..... 20, 21

Stotts v. Memphis Fire Dept., 679 F.2d 541 (6th
Cir. 1982), rev’d on other grounds sub nom.
Firefighters Local Union No. 1784 v. Stotts,

Se ee ec dint amewreedeeeukeb beds ode 12
Thaggard v. City of Jackson, 687 F.2d 66 (5th

Se A + chibi ob kein 640.46 de SESS R RSE ERRA VE sO's-0* 12
United States v. Jefferson County, 720 F.2d 1511

Se Ct I cho ceeceteccudseecewuns 3, 5, 10, 15
Wilson v. Attaway, 757 F.2d 1227 (ilth Cir.

SD 556 Nek OLA kd a nacaeh bae eee ened eaee eahe eee 13

Wygant v. Jackson Board of Education, 476 U.S.
267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986)
PPT eTeTTeTIT IT TT tTiTt Te tT 15, 16, 18, 19, 20

Nos. 87-1614, 87-1639, 87-1668
+

In The

Supreme Court of the United States
October Term, 1987

o—
JOHN W. MARTIN, et al.,
v, Petitioners,

ROBERT K. WILKS, et ai..

Respondents.
~~
PERSONNEL BOARD OF JEFFERSON COUNTY, e¢ ai.,
Vv. Petitioners,

ROBERT K. WILKS, et al.,

Respondents.
e
RICHARD ARRINGTON, JR., et al.,
Vv. Petitioners,

ROBERT K. WILKS, et al.,

Respondents.

-

BRIEF IN OPPOSITION TO CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT OF
RESPONDENTS ROBERT K. WILKS, e¢ al.

—@-—

1

Respondents Robert K. Wilks, et al. respectfully
submit this brief in opposition to issuance o: a Writ of
Certiorari to the United States Court of Appeals for the
Eleventh Circuit.

+

CITATIONS TO OPINIONS BELOW

Petitioners’ citations of the decision of the Court of
Appeals are correct.

Petitioners’ citation of the decision of the District
Court as In re Birmingham Reverse Discrimination
Employment Litigation, 39 Faii Empl. Prac. Cas. (BNA)
1431 (N.D. Ala. Dec. 20, 1985) is misleading.’ The
record eutries which together constitute the final deci-
sion of the District Court are reprinted by petitioners
in the Appendix at 27a - 76a. And, petitioners have
provided a final compilation of the district court’s find-
ings in the Appendix at 77a - 109a.

—@--

JURISDICTION

Respondents agree with the petitioners’ allegations
of jurisdiction to consider the Petitions.

+

1 As noted by petitioners Arrington, et al, petition at 2 n.2,
the FEP reported decision does not contain additional post-
trial findings, conclusions and modifications of the District
Court’s order which were made upon consideration of respon-
dents’ Rule 59 Motion. App. at 69a - 76a.

STATEMENT OF THE CASE

Respondents Robert K. Wilks, et al. are fifteen indi-
vidual white male employees of the City of Birmingham
Fire & Rescue Service (“BFRS”) and one white male
employee of the City’s Engineering Department.? App.
at 82a, { 1. Each would have been promoted to a posi-
tion as a Fire Lieutenant or Fire Captain or Civil
Engineer but for the race conscious actions of the City
of Birmingham (“City”). App. at 79a. Beginning in April
1982, these respondents filed individual suits against
the City, its Mayor, and the Personnel Board of Jeffer-
son County defendants (“Personnel Board”) under Title
VII and the Equal Protection Clause.3

The defense rested on claims of compliance with
consent decrees entered in United States v. Jefferson
County, 28 FEP Cases (BNA) 1834 (N.D. Ala. 1981).
App. at 37a.

2 In addition, an association of employees of the City is a
plaintiff-respondent. App. at 67a.

3% Claims under 42 U.S.C. § 1981 and state law were also
alleged. The suits were filed at the time of the denia! of
promotional opportunities to the individual plaintiffs, and,
in most cases, after exhaustion of administrative remedies
before the Equal Employment Opportunity Commission.
While the first two complaints made reference to the consent
decrees, and sought preliminary relief against implementa-
tion of race conscious promotions, the later complaints made
no reference to the decrees and simply sought relief due to
the discriminatory conduct of the defendants. Compare,
bay ey complaint, R17-1-1, et seq., to Bennett complaint, App.
at 110a.

Those decrees were entered in settlement of race
and sex discrimination cases filed in 1974 and 1975 by
various private parties and the United States.+ App. at
236a - 246a. After the proposed consent decrees with
the City and Personnel Board were announced in June
1981, the Birmingham Fire Fighters Association filed
objections to certain decree provisions as required by
the public notice. App. at 238a. A “fairness hearing”
was held by the District Court on August 3, 1981, App.
at 238a, and the decrees were approved on August 21,
1981, App. at 247a. Prior to entry of the decrees, the
union sought to intervene in the consent decree cases.
The consent decree parties vigorously opposed inter-
vention by the union. The union’s motion was denied at
the time of entry of the District Court’s order approving
the consent decrees. App. at 246a.

4 In 1977, the District Court found that the entry-level
Police Officer and Firefighter tests used by the Personnel
Board adversely impacted upon black applicants and were
not shown to be job-related under the EEOC Guidelines. The
trial court further found that the Personnel Board had not
intentionally discriminated against blacks, was not guilty of
a constitutional violation, and, in fact, had made efforts for
several years to bring blacks into public employment. Ensley
Branch, NAACP v. Seibels. 13 Empl. Prac. Dec. (CCH) {
11,504 at 6795 (N.D. Ala. 1977). The assertion by the Martin
petitioners that the court ordered the Board to certify “for
promotion specified ratios of blacks and whites” is false.
Martin petition at 6. At no time has any finding been made
by the District Court regarding promotional examinations
used by the Board. Nor were any findings of discrimination
made against the City of Birmingham.

The Court of Appeals for the Eleventh Circuit
upheld the denial of intervention by the union. The
appeals court found that no prejudice should result to
the union or its members because entry of the decrees
would not preclude an individual nonparty harmed by
the City’s implementation practices from asserting an
independent claim of discrimination. United States v.
Jefferson County, 720 F.2d 1511, 1518 (11th Cir. 1983).
The Court also recognized that the individual plaintiffs
could not file suit until they were personally denied
promotion after approval of the settlement. No party
sought review by this Court.

During April 1984 the District Court consolidated
the various discrimination claims of the respondents
and other nonminority City employees under the mas-
ter caption file Jn re: Birmingham Reverse Discrimina-
tion Employment Litigation. It was later determined to
first try the claims of the BFRS and Engineering
Department plaintiffs. In an effort to narrow the scope
of pretrial preparation, the District Court entered pre-
trial orders finding that the respondent plaintiffs were
required to prove that the promotions of the black
promotees were not required by the terms of the con-
sent decrees. App. at 27a, 28a. In those orders, the
District Court summarily found without a trial, sum-
mary judgment motion, or other hearing, that the con-
sent decrees were valid and lawful. See, Jn re:
Birmingham Reverse Discrimination Employment Liti-
gation, 37 FEP Cases (BNA) 1 (N.D. Ala. 1985); Tran-
script of May 14, 1984 hearing, at 20-22. Consent
decree compliance, rather than the standards of Title
VII or the Equal Protection Clause, became the only

issue for trial. And, respondents were limited by the
trial judge to present evidence on that single issue.®

At the conclusion of the five day bench trial, the
District Court found that the respondents had failed to
prove that the contested promotions were not required
by the terms of the City consent decree. It therefore
upheld the promotions, repeating again without expla-
nation its previously announced ruling that the City
consent decree “is lawful.” App. at 106a.

The Court of Appeals for the Eleventh Circuit
reversed finding that respondents had never been given
a trial on their individual Title VII or Equal Protection
claims. In Re: Birmingham Reverse Discrimination
Employment Litigation, 833 F.2d 1492, 1500 (11th Cir.
1987); App. at 17a. The appeals court held, as to non-

5 The Court determined that the only factual issue was
whether, under the terms of the consent decree, the black
promotees were demonstrably less qualified than the respon-
dents. Paragraph 2 of the City Decree provides: “Nothing
herein shall be interpreted as requiring the City to .

.. promote a person who is not qualified, or to... promote a
less qualified person in preference to a person who is demon-
strably better qualified based upon the results of a job
related selection procedure.” App. at 124a. The City con-
tended that paragraph 2 had never been “invoked” by the
City, and it was therefore irrelevant and not considered in
making promotions. Indeed, the City admitted, and the Dis-
trict Court found, that the City promoted the black candi-
dates without consideration of the relative qualification of
all candidates. App. at 105a. In addition, the District Court
required the respondent plaintiffs to prove that the City
knew at the time of promotion that the black promotees were
demonstrably less qualified. App. at 28a, 29a.

i
——

parties such as respondents Wilks, et al., a consent
decree embodied affirmative action plan is entitled to
no more preclusive effect against that nonparty than a
voluntary affirmative action plan. The District Court
was directed on remand to evaluate the race based
conduct of the petitioners under the standards of John-
son v. Transportation Agency, 480 U.S. __, 94 L.Ed.2d
615 (1987) (Title VII) and Wygant v. Jackson Board of
Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d
260 (1386) (Equal Protection Clause). 833 F.2d at 1500,
1501; App. at 19a. Finally, the appeals court noted that
the District Court’s interpretation of the language of
paragraph 2 of the City consent decree that it “permits
the City to make race conscious promotions without
using any job-related selection procedure” creates a
natural potential for the trammelling of the interests of
nonminority employees which warranted “heightened
scrutiny” by the District Court on remand. 833 F.2d at
1501; App. at 19a, 20a (emphasis in original).

+

ARGUMENT

I. The Court of Appeals Correctly Ruled
That A Consent Decree Does Not Immu-
nize A Defendant From the Discrimina-
tion Claims of Nonparties.

A. This Court has already decided that a
Title VII consent decree is akin to a voluntary
affirmative action plan.

Just two terms ago, this Court discussed the volun-
tary nature of a Title VII consent decree in Local No. 93

v. City of Cleveland, 478 U.S. 501, 106 S.Ct. 3063, 92
L.Ed.2d 405 (1986). Noting that the obligations of a
consent decree are created by the agreement of the
parties rather than the force of law, this Court recog-
nized that “the voluntary nature of a consent decree is
its most fundamental characteristic.” City of Cleveland,
92 L.Ed.2d at 423. Indeed, this Court likened the entry
of a consent decree in settlement of discrimination liti-
gation to other permissible voluntary affirmative action
by employers or unions designed to eradicate the effects
of past discrimination. The only difference, this Court
held, is the additional remedy, to which the parties
have voluntarily submitted, of the court’s contempt
power to ensure an employer’s compliance with a con-
sent decree embodied affirmative action plan. 92
L.Ed.2d at 424. This Court went on to recognize that,
given the managerial discretion reposed in employers
to voluntarily adopt affirmative action plans that might
include relief broader than that which a court could
order under § 706(g), a district court is authorized to
enter a consent decree containing a voluntary affirma-
tive action plan in settlement of discrimination litiga-
tion. Due to its voluntary nature, a consent decree is,
therefore, not the sort of court order subject to the
limitations placed on the orders of federal courts by
§ 706(g) of Title VII. City of Cleveland, 92 L.Ed.2d at
423. Without holding that the affirmative action
aspects of a consent decree are the equivilent of a
voluntary plan, this Court could not have reached the
result in Cleveland.

The Cleveland Court cautioned, however, that “the
fact that the parties have consented to the relief

contained in a [consent] decree does not render their
action immune from attack on the ground that it vio-
lates § 703 of Title VII or the Fourteenth Amendment.”
Cleveland, 92 L.Ed.2d at 426. Finally, this Court
refused to allow an unconsenting union to block entry
of a consent decree wherein plaintiffs and an employer
resolve their differences through adoption of a decree
embodied affirmative action plan. 92 L.Ed.2d at 427,
428.

The Eleventh Circuit panel correctly followed
Cleveland when it wrote:

... even if a consent decree purports to affect the

rights of third parties, those parties are not bound
by the terms of the decree unless their interests
were adequately represented by a party to the
decree. See Local No. 93 v. City of Cleveland, __
U.S. __, 106 S.Ct. 3063, 3079, 92 L.Ed.2d 405
(1986) (“A courts approval of a consent decree
between some of the parties . . . cannot dispose of
the valid claims of nonconsenting [parties]; if prop-
erly raised, these claims remain and may be liti-
gated by the [nonconsenting parties]”.) The policy
of encouraging voluntary affirmative action plans
must yield to the policy against requiring third
parties to submit to bargains in which their inter-
ests were either ignored or sacrificed. See Fire-
fighters Local Union No. 1784 v. Stotts, 467 U.S.
561, 589 n.4, 104 S.Ct. 2576, 2593 n.4, 81 L.Ed.2d
483 (1984) (O’Connor, J., concurring) (“The policy
favoring voluntary settlement does not, of course,
countenance unlawful discrimination against exist-
ing employees.”).

833 F.2d at 1498; App. at 14a, 15a.

Following this Court’s decision in Cleveland, the
Eleventh Circuit correctly held that a consent decree

10

embodied plan is entitled to no more preclusive effect
than one not entered by a court in settlement of dis-
crimination litigation. 833 F.2d at 1498; App. at 13a.®
There is no need for this Court to revisit the issue.

B. This case involves a different issue and
factual context than that which was not
resolved in Marino v. Ortiz.

During the current term, this Court was equally
divided when it considered Marino v. Ortiz, No.
86-1415, __ U.S. __, 108 S.Ct. 586, 98 L.Ed.2d 629
(Jan. 13, 1988). The issue in Marino was “whether a
District Court may dismiss as an impermissible collat-
eral attack a lawsuit challenging a consent decree by
nonparties to the underlying litigation.” In Marino,
petitioners filed an independent lawsuit asserting an
equal protection claim. Their theory was that blacks
with test scores equal to those of petitioners should not
be promoted under the terms of a consent decree that
had been proposed in another case. The Second Circuit
panel noted that “[a]lthough [petitioners] had no expec-
tation of promotion since they had failed the examina-
tion, they demanded that they too be made sergeants.”
Marino v. Ortiz, 806 F.2d 1144, 1146 (2d Cir. 1986). The

6 The Eleventh Circuit’s rejection of the no collateral
attack doctrine was first announced in United States v.
Jefferson County, 720 F.2d 1511, 1518 (11th Cir. 1983). At
that time, the appeals court noted that its analysis paral-
lelled the discussion of Ashley v. City of Jackson, 464 U.S.
900 (1983) (Rehnquist, J., joined by Brennan, J., dissenting
from denial of certiorari). See, Jefferson County, 720 F.2d
1511 at 1519 n.20. The Ashley dissent was relied upon in this
Court’s Cleveland decision. 92 L.Ed.2d at 423, 428.

11

appeals court found that the suit was an impermissible
effort to block entry of a consent decree that had been
proposed in another case.

In Marino, petitioners were directly attacking a
proposed consent decree in which their interest was
speculative at best. At the time of their suit, the peti-
tioners had suffered no harm; and, they had no right or
expectation of promotion that was to be denied under
the terms of the decree. Rather, petitioners were
aggrieved by the fact that blacks who failed the civil
service test would receive promotions while they,
whites who had failed the same test, would not receive
the same treatment. Petitioners’ suit was correctly dis-
missed by the District Court, for the simple reason they
were denied nothing on the basis of their race.

In this case, respondents are individual white male
employees who exhausted their administrative
remedies before the EEOC and filed suit after they
were individually denied promotions as a direct result
of race conscious actions which respondents contend
are not within the ambit of permissible affirmative
action. Indeed, respondents’ suits are the very actions
envisioned by this Court’s recent decisions. See, City of
Cleveland, 92 L.Ed.2d at 428, 429 (O’Connor, J., concur-
ring); and, e.g., W. R. Grace & Co. v. Rubber Workers,
461 U.S. 757 (1983) (employer that voluntarily submits
itself to conflicting obligations is cornered by its own
actions). See also, Ashley v. City of Jackson, 464 U.S.
900 (1983) (Rehnquist, J., joined by Brennan, J., dis-
senting from denial of certiorari).

The Marino case was nothing more than a separate
suit to halt entry of a consent decree by nonparties that

12

would suffer no personal loss or harm as a result of the
proposed decree. Here, respondents were not parties to
the decree, and directly suffered in the course of the
City’s implementation of the settlement.

The issue in this case is not the lawfulness of the
decrees. Nor is this case a facial attack on the decrees.
The issue is the validity of the race conscious conduct of
the defendants. Marino was not that type of case.

C. The Courts of Appeals are now correctly
following the Cleveland decision.

Petitioners assert that certiorari should be granted
because of a split in the decisions of the circuits.
Arrington petition at 6; Martin petition at 12; Person-
nel Board petition at 5, 6. Citing a series of cases from
six circuits,? and contrary decisions from the Seventh
and Eleventh Circuits, the petitioners claim this
Court’s intervention is necessary to resoive the “no
collateral attack” doctrine.

With the exception of the unique facts of Marino v.
Ortiz, 806 F.2d 1144 (2d Cir. 1986), which follows the

7 Petitioners cite Culbreath v. Dukakis, 630 F.2d 15, 22-23
(1st Cir. 1980); Marino v. Ortiz, 806 F.2d 1144 (2d Cir. 1986),
aff’d, 108 S.Ct. 586 (1988); Goins v. Bethlehem Steel Corp.,
657 F.2d 62 (4+h Cir. 1981), cert. denied, 455 U.S. 940 (1982);
Thaggard v. City of Jackson, 687 F.2d 66 (5th Cir. 1982), cert.
denied sub nom. Ashley v. City of Jackson, 464 U.S. 900
(1983); Stotts v. Memphis Fire Dept., 679 F.2d 541, 558 (6th
Cir. 1982), rev'd on other grounds, sub nom. Firefighters
Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984); Den-
nison v. City of Los Angeles Dept. of Water & Power, 658 F.2d
694, 696 (9th Cir. 1981). See Arrington petition at 6.

13

Second Circuit’s earlier decision in Prate v. Freedman,
430 F.Supp. 1373 (W.D.N.Y.) affirmed mem., 573 F.2d
1294 (2d Cir. 1977), cert. denied, 436 U.S. 922 (1978),
all of the “no collateral attack” cases cited by peti-
tioners predate this Court’s decision in Local No. 93 v.
City of Cleveland, supra by several years. And, the two
circuits which have addressed the issue on a clean slate
since the Cleveland decision have rejected the no collat-
eral attack doctrine. Dunn v. Carey, 808 F.2d 555 (7th
Cir. 1987); In re Birmingham Reverse Discrimination
Employment Litigation, 833 F.2d 1492 (11th Cir. 1987).
Respondents suggest that since Cleveland was decided,
the Courts of Appeals have correctly rejected the “no
collateral attack” doctrine. Assuming there was once a
conflict among the circuits, that conflict was resolved
by Cleveland and simply no longer exists.

D. The Court of Appeals correctly recognized
the fundamental unfairness of binding a non-
party to an agreement he had no part in
making.

The Court of Appeals recognized that due process
mandates that a party have an opportunity to be heard
if he is to be bound by a judgment:

It is a fundamental premise of preclusion law
that “[a] nonparty to a prior decision cannot be
bound by it unless he had sufficient identity of
interest with a party that his interests are deemed
to have been litigated.” Wilson v. Attaway, 757 F.2d
1227, 1237 (11th Cir. 1985). As the Supreme Court
has emphasized, this premise is required by due
process: “[iJt is a violation of due process for a
judgment to be binding on a litigant who was not a
party or a privy and therefore has never had an
opportunity to be heard.” Parklane Hosiery Co. v.

|

14

Shore, 439 U.S. 322, 327 n.7, 99 S.Ct. 645, 649 n.7,
58 L.Ed.2d 552 (1979).

833 F.2d at 1498; App. at 13a. Finding that the individ-
ual plaintiff-respondents were neither parties nor
privies to parties to the consent decrees, their claims
did not accrue until after the decrees became effective
and the challenged promotions made, and their union’s
appearance at a fairness hearing could hardly be
deemed sufficient to make them parties to the decrees,
the appeals court refused to bind the nonminority
plaintiff-respondents to the terms of the decrees.®

Petitioners claim the employer should be immune
from discrimination claims because of its new-found
penchant toward voluntary compliance with Title VII.
The logical conclusion from their argument is that
respondents’ individual rights under the Constitution
can be surrendered at the will of their employer. This
Court has consistently recognized the strong public pol-
icy in favor of voluntary compliance with this nation’s
laws designed to eradicate discrimination. See, Alex-
ander v. Gardner-Denver Co., 415 U.S. 36 (1974). But,
individual rights cannot be sacrificed under the guise of
voluntary compliance. Alexander recognized that “there
can be no prospective waiver of an employee’s rights
under Title VII. .. .Title VII’s strictures are absolute
and represent a congressional concern that each
employee be free from discriminatory practices.” 415
U.S. at 51. More recently this Court rejected the notion

8 See, 833 F.2d 1498, 1499; App. at 15a. The District
Court’s finding that neither plaintiffs, nor their privies, were
parties to the decrees, App. at 105a, is not clearly erroneous.

15

that employment opportunities may be prospectively
waived or allocated among racial groups at the expense
of unconsenting individuals. See, Connecticut v. Teal,
457 U.S. 440, 453 (1982) (“Section 703(a)(2) prohibits
practices that would deprive or tend to deprive ‘any
individual of employment opportunities.’ ”); Wygant v.
Jackson Board of Education, 476 U.S. 267, 90 L.Ed.2d
260, 273 n.8 (1986) (“Constitution does not allocate
constitutional rights to be distributed like bloc grants
within discrete racial groups,” and, a race based plan
“cannot justify the discriminatory effect on some indi-
viduals because other individuals had approved the
plan.”) (Powell, J., joined by Burger, Ch.J., and Rehn-
quist, J.). Indeed, whether the respondents could have
intervened in the consent decree case is not the issue.®
These individual nonminority employees were denied
promotions on the basis of their race and have yet to
have a day in court to assert that the conduct of the
defendants is outside the scope of constitutional affir-
mative action. No union, employer, other third party, or
district judge conducting a “fairness hearing,” should
be able to waive that right of the individual to be free
from discriminatory practices.

9 It is curious that the City, which vigorously and suc-
cessfully opposed intervention by the union in the consent
decree cases, now claims that these individual respondents
“intentionally bypassed[ed] an adequate opportunity to
intervene. .. .” Arrington petition at 8. See also, United
States v. Jefferson County, 720 F.2d 1511 (11th Cir. 1983).

16

II. The Court of Appeals Properly
Remanded With Instructions to Carefully
Evaluate the Race Conscious Conduct of
the Defendants.

A. Wygant v. Jackson Board of Education
and Johnson v. Transportation Agency
provide the correct standards to review a
public employer’s voluntary race based
conduct.

The District Court was directed to evaluate the
defendant’s voluntary race based conduct under this
Court’s recent decisions in Wygant v. Jackson Board of
Education, 476 U.S. 267 (1986) (Constitution) and
Johnson v. Transportation Agency, 480 U.S. __, 94
L.Ed.2d 615 (1987) (Title VII). The fact that those cases
involved voluntary plans rather than consent decrees is
irrelevant. The appeals court wrote: “In both instances,
the employer has embarked on a voluntary undertak-
ing; we reject any notion that the memorialization of
that voluntary undertaking in the form of a consent
decree somehow provides the employer with extra pro-
tection against charges of illegal discrimination.” 833
F.2d at 1501; App. at 19a. Indeed, that is the logical
inference one must draw from this Court’s Cleveland
decision.

In Johnson, supra, this Court gave lower courts
much needed direction and guidance on the parameters
of an affirmative action plan which passes muster
under Title VII. Drawing heavily upon Justice Powell’s
process of evaluation for voluntary race based conduct
in Regents of the University of California v. Bakke, 438
U.S. 265 (1978), this Court found that a plan which
takes race into account may use race as a single “plus”

17

factor in evaluating the relative qualifications of the
candidates. No position should be set-aside solely on
the basis of race; and, a realistic goal should be based
on the availability of blacks or women in the relevant
labor pool.

In this case, the District Court found that the City
never compared relative qualifications, made no
attempt to use a job-related selection procedure, and
simply alternated between blacks and whites in making
promotions. App. at 69a - 75a, 105a, 106a.!° Moreover,

10 The testimony of Birmingham Fire Chief Gallant illus-
trates the City’s failure to consider qualifications in making
promotional decisions:

Q. At the time [black promotee] Tony Jackson was pro-
moted to Captain, did you form a judgment as to whether
he was qualified to perform the duties of a Captain?

A. No, I did not.
Q. You did not?
A. No, I did not.

Q. ... At the time you promoted Tony Jackson to
Captain, did you compare his qualifications to perform
the duties of Fire Captain to those of [white candidate]
David Brand?

A. I did not.

Q. At the time you promoted Tony Jackson to Captain,
did you compare his qualifications to perform the duties
of Fire Captain to those of [white candidate] Mickey
Martin?

A. I did not.

PX 31, pages 325, 326.

18

the City arbitrarily employed an annual Fire Lieuten-
ant promotional ratio of 50% when blacks comprised
only nine to thirteen percent of the potentially qualified
labor pool from which Fire Lieutenants are drawn. App.
at 106a. Indeed, Birmingham’s “plan failed to take dis-
tinctions in qualifications into account,” and dictated
“mere blind hiring by the numbers.” Johnson, 94
L.Ed.2d at 633, 634. Race was not a single plus factor
considered in making promotional decisions by Bir-
mingham’s Fire Chief, it was the only factor. Moreover,
in view of the relatively small qualified black labor
pool, this one-for-one promotional plan is hardly nar-
rowly-tailored.

B. The District Court was properly directed

to subject Birmingham’s race based conduct
to heightened scrutiny on remand.

Noting that under the District Court’s interpreta-
tion of the consent decrees, the City was permitted to
not use any job-related selection procedure in selecting
Fire Lieutenants, the appeals court directed that the
decree embodied plan be subjected to “heightened scru-
tiny” on remand because of the increased potential for
trammelling under such an arrangement. App. at
20a.!!

It is beyond peradventure that courts should exam-
ine with extreme care any race based conduct by a
public actor. This Court has “consistently repudiated
‘{djistinctions between citizens solely because of their

11 When it approved the decrees in 1981, the District Court
employed the “reasonableness” standard, Appendix at 238a,
246a, which was rejected in Wygant, 90 L.Ed.2d at 272, 281.

19

ancestry’ as being ‘odious to a free people whose insti-
tutions are founded upon the doctrine of equality,’ ”
Loving v. Virginia, 388 U.S. 1, 11 (1967) quoting
Hirabayashi v. United States, 320 U.S. 81, 100 (1943).
Thus, the scope of judicial inquiry in cases where racial
distinctions are involved is necessarily more intense.
“Racial and ethnic distinctions of any sort are inher-
ently suspect and thus call for the most exacting judi-
cial examination.” Regents of University of California v.
Bakke, 438 U.S. 265, 291 (1978) (opinion of Powell, J.,
joined by White, J.) (emphasis added). “Any preference
based on racial or ethnic criteria must necessarily
receive most searching examination ...” Fullilove v.
Klutznik, 448 U.S. 448, 491 (1980) (Burger, Ch.J.)
(emphasis added). The “means chosen by a state to
accomplish its race conscious purposes” must meet “a
more stringent standard”. Wygant v. Jackson Board of
Education, 476 U.S. 276, 90 L.Ed.2d 260, 272 (1986)
(Powell, J.) (emphasis added). “(RJacial classifications
of any sort must be subjected to ‘strict scrutiny,’ how-
ever defined”. Wygant, 90 L.Ed.2d at 275 (O’Connor, J.,
concurring in part) (emphasis added). Under the forego-
ing decisions, heightened, searching, stringent, exact-
ing or strict scrutiny are all appropriate when
considering race based conduct of a public actor. The
admonition to the District Court to employ “heightened
scrutiny” was well within the guidelines of this Court’s
decisions.

20

III. If Certiorari is Granted, This Case
Provides an Appropriate Opportunity for
a Reexamination of Steelworkers v. Weber.

The Court of Appeals properly followed this Court’s
precedents in directing the District Court to use the
formulas for evaluation of race based conduct of John-
son (Title VII) and Wygant (Constitution). Conse-
quently, these respondents believe certiorari is due to
be denied in this case. But, these respondents are also
aware that, in view of the affirmance of Marino, the
Court may wish to consider Question 1 (no collateral
attack doctrine). Should the Court grant the petitions,
its review should reach the appropriate standards for
review of the defendants’ conduct and the continued
viability vel non of Steelworkers v. Weber, 443 U.S. 193
(1979).!2 Johnson is built upon this Court’s decision in
Weber. In Johnson, Justice O’Connor suggested that the
result reached was determined by Weber, and no party
was suggesting that Weber be overruled. Johnson uv.
Transportation Agency, 480 U.S. __, 94 L.Ed.2d 615,
641 (1987) (O’Connor, J.). Justices White, Scalia, and
the Chief Justice wrote that Weber should be overruled.
Id., 94 L.Ed.2d at 647, 657.

This case presents an appropriate opportunity to
reconsider Weber. The instructions of the Court of
Appeals are expressly premised upon Weber, Johnson
and Wygant. The petitioners have claimed that the

12 These respondents suggested to the Court of Appeals
that Weber should be overruled. See, Supplemental Brief of
Wilks, et al., at 10.

~ ee he Nak SO eres ES

21

appeals court incorrectly applied Weber and Johnson.
Martin petition at 14-20. This case contains a complete
record of the proceedings which resulted in the consent
decrees, the conduct of the defendants in implementing
their plan, and the relative qualifications of the com-
peting white and black candidates. Reconsideration of
Weber would be appropriate in this case.

CONCLUSION

Respondents Robert K. Wilks, et al. respectfully
urge the Court to deny the petitions for writ of cer-
tiorari to the Court of Appeals for the Eleventh Circuit.
If the petitions are granted, Weber should be recon-
sidered in the process of this Court’s review.

May 20, 1988
Respectfully submitted,
RayMOND P. FIrzpaTrRICK, JR.
Counsel of Record

P.O. Box 360187
Birmingham, Alabama 35236
(205) 988-5048

Attorney for Respondents
Robert K. Wilks, et al.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0372%3A04. Public record. Not legal advice.