Amicus Curiae Brief — Martin v. Wilks

r EILED

Nos. 87-1614, 87-1668 and 87-1639 MAY 20 1938

IN THE

Supreme Court of the United

OCTOBER TERM, 1987

JOHN W. MARTIN, et al.,

7 Petitioners,

ROBERT K. WILKS, et al.,

Respondents.

RICHARD ARRINGTON, JR., et al.,

vy. Petitioners,

ROBERT K. WILKS, et al.,

Respondents.

PERSONNEL BOARD OF JEFFERSON COUNTY, et al.,

vy. Petitioners,

ROBERT K. WILKS, et al.,

Respondents.

On Petitions for a Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

MOTTON POR Ft SOBEL Bd el edeelrrrre,

wD BRIEF AMICUS CURIAE OF THE

INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS,

AFL-CIO, IN SUPPORT OF RESPONDENTS

THOMAS A. WOODLEY *

General Counsel

MICHAEL S. WOLLY

MULHOLLAND & HICKEY

1125 15th Street, N.W.

Suite 400

Washington, D.C. 20005

Telephone: (202) 833-8855

Attorneys for the Amicus

International Association

of Fire Fighters, AFL-CIO

* Counsel of Record

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

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=—i- 7

IN THE

Court of the United States

OCTOBER TERM, 1987

No. 87-1614

JOHN W. MARTIN, et al.,

* Petitioners,

Rosert K. WILKS, et al.,

Respondents.

No. 87-1668

RICHARD ARRINGTON, JR., et al.,

. Petitioners,

ROBERT K. WILKS, et al.,

Respondents.

No. 87-1639

PERSONNEL BOARD OF JEFFERSON COUNTY, et al.,

. Petitioners,

ROBERT K. WILKS, et al.,

Respondents.

On Petitions for a Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

The International Association of Fire Fighters, AFL-

CIO, respectfully moves this Court for leave to file the

accompanying brief as amicus curiae in support of the

position of the respondents in these cases.

INTEREST OF THE IAFF AS AMICUS CURIAE

AND ISSUES TO BE COVERED

IN THE BRIEF AMICUS CURIAE

The International Association of Fire Fighters, AFL-

CIO, (IAFF) is an unincorporated association comprised

of municipal, state, and federal fire fighters throughout

the United States and Canada. The current membership

includes approximately 153,000 state and municipal! fire

fighters employed by states, cities, and towns across the

United States.

The IAFF’s objectives include promoting and securing

improved wages, hours, and working conditions of fire

fighters through collective bargaining, legislation, legal

action, and other appropriate means.

The IAFF here represents the interests of its many

members across the country who are employed in cities

and towns whose employment rights are now, or may be,

affected by the terms of consent decrees entered in settle-

ment of employment discrimination lawsuits to which

they are not parties. Most of the jurisdictions employing

IAFF members operate pursuant to civil service laws

which prescribe procedures for promotions. The legal

principles espoused by the Court of Appeals below are

perfectly consistent with the precedent of this Court, par-

ticularly as set forth in Local Number 93, Firefighters v.

City of Cleveland, 478 U.S. ——, 92 L.Ed.2d 405 (1986)

and Wygant v. Jackson Board of Education, 476 U.S.

——, 90 L.Ed.2d 260 (1986). Those principles protect

the rights of public employees to challenge decisions of

their employers, taken pursuant to settlements of em-

ployment discrimination lawsuits brought by others,

which constitute unlawful discrimination under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and

the Fourteenth Amendment to the U.S. Constitution.

The filing of petitions seeking this Court’s review of the

decision of the Court of Appeals prompts the filing of

this brief to point out that the issue of the rights of

employees affected, by but not party to, consent decrees

has already been settled by this Court. No further review

is necessary. |

CONCLUSION

For this reason, this motion for leave to file an amicus

curiae brief should be granted.

Respectfully submitted,

THOMAS A. WOODLEY *

General Counsel

MICHAEL S. WOLLY

MULHOLLAND & HICKEY

1125 15th Street, N.W.

Suite 400

Washington, D.C. 20005

Telephone: (202) 833-8855

Attorneys for the Amicus

International Association

of Fire Fighters, AFL-CIO

* Counsel of Record

TABLE OF CONTENTS

Page

I sicciticcehashbalechailianlen lini ithe est tic ciacentianatiahicl 2

The Petitions for a Writ of Certiorari Should Be

EEE Se ee ee re Seer 2

I i iat laliciniabeannens 7

TABLE OF AUTHORITIES

CASES

Local Number 93, Firefighters v. City of Cleveland,

478 U.S. ‘5 5 Reon 2, 3, 4, 6

Marino v. Ortiz, 806 F.2d 1144 (2d Cir. 1986),

aff’d by an equally divided court, 484 U.S. ——,

fe eee 4,6

United States v. Jefferson County, 720 F.2d 1511,

I i ctieeneine 2,6

Wygant v. Jackson Board of Education, 476 U.S.

S )° § | f: =a 3

IN THE

Siren Comet of the United States

OCTOBER TERM, 1987

No. 87-1614

JOHN W. MARTIN, et al.,

. Petitioners,

ROBERT K. WILKS, et al.,

Respondents.

No. 87-1668

RICHARD ARRINGTON, JR., et al.,

" Petitioners,

ROBERT K. WILKS, et al.,

Respondents.

No. 87-1639

PERSONNEL BOARD OF JEFFERSON COUNTY, et al.,

. Petitioners,

ROBERT K. WILKS, et al.,

Respondents.

On Petitions for a Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

BRIEF AMICUS CURIAE OF THE INTERNATIONAL

ASSOCIATION OF FIRE FIGHTERS, AFL-CIO,

IN SUPPORT OF RESPONDENTS

2

This brief amicus curiae is filed contingent on the

granting of the foregoing motion for leave to file said

brief. The interest of the amicus curiae in this case is

set forth in that motion.

ARGUMENT

THE PETITIONS FOR A WRIT OF

CERTIORARI SHOULD BE DENIED

The Court below twice has held that an employee need

not intervene in pending employment discrimination liti-

gation in order to preserve his right to challenge actions,

taken pursuant to a settlement of such litigation, which

adversely affect him and which he believes are the prod-

uct of unlawful discrimination. In the first instance,

United States v. Jefferson County, 720 F.2d 1511, 1518

(11th Cir. 1983), petitioners did not seek review by this

Court. Respondents relied upon that earlier ruling and

pursued such an independent challei.ge with the approval

of the Court of Appeals. Now, petitioners seek certiorari.

The lower court’s application of the traditional con-

cepts of fundamental due process and fair play in these

circumstances was entirely appropriate. This Court held

in Local Number 93, Firefighters v. City of Cleveland,

478 USS. , 92 L.Ed.2d 405 (1986) that a consent

decree is indistinguishable from a voluntary affirmative

action program in assessing the rights of-non-minorities

affected by the terms of the settlement. “[A]bsent some

contrary indication, there is no reason to think that vol-

untary, race-conscious affirmative action such as was

held permissible in Weber is rendered impermissible by

Title VII simply because it is incorporated in a consent

decree.” 92 L.Ed.2d at 421. Local 93 tested the effect of

Section 706(g) of Title VII on the extent of relief which

could be contained in consent decrees. The Court held

that the limits on the parties’ ability to fashion such

court-approved settlements “must be found outside

§ 706(g).” 92 L.Ed.2d at 423. It noted that this hold-

3

ing does “not suggest that voluntary action by employers

or unions is outside the ambit of Title VII regardless of

its effect on non-minorities. . . . The rights of non-

minorities with respect to action by their employers are

delineated in § 703 of Title VII, 42 U.S.C. § 2000e-2 and,

in cases involving governmental employees, by the Four-

teenth Amendment.” 92 L.Ed.2d at 423, n. 11.

This latter principle was enunciated in Wygant v.

Jackson Board of Education, 476 U.S. , 90 L.Ed.2d

260 (1986) as well. Treating the contention that the

impact on non-minorities of the racial preference in lay-

offs was permissible under the Fourteenth Amendment

because a majority of the affected non-minority em-

ployees did not object to it, Justice Powell explained:

[W]hen a state implements a race-based plan that

requires such a sharing of the burden, it cannot

justify the discriminatory effect on some individuals

because other individuals had approved the plan.

Any “waiver” of the right not to be dealt with by

the government on the basis of one’s race must be

made by those affected.... [T]he petitioners before

us today are not “the white teachers as a group.”

They are Wendy Wygant and other individuals who

claim that they were fired from their jobs because

of their race. That claim cannot be waived by peti-

tioners’ more senior colleagues.

90 L.Ed.2d at 273, n. 8.

The Eleventh Circuit’s opinion below is wholly con-

sistent with this Court’s decision in Local Number 93,

Firefighters. There, a union which had intervened and

presented objections to a proposed consent decree, at-

tempted to block the settlement. This Court held that

the union could not, simply by reason of its intervention,

“preclude other parties from settling their own disputes

and thereby withdrawing from litigation.” 92 L.Ed.2d

at 427-428. Conversely, the Court held that “parties who

choose to resolve litigation through settlement may not

dispose of the claims of a third party, and a fortiori may

4

not impose duties or obligations on a third party, with-

out that party’s agreement.” 92 L.Ed.2d at 428. The

gist of this holding is that a nonconsenting intervenor

may continue to press claims that conduct covered by a

consent decree is unlawful. Justice O’Connor specifi-

cally so noted in her concurring opinion—‘As the Court

explains, nonminority [public] employees therefore re-

main free to challenge the race-conscious measures con-

templated by proposed consent decree as violative of their

rights under § 703 [of Title VII of the Civil Rights Act

of 1964] or the Fourteenth Amendment.” 92 L.Ed.2d

at 429.

Surely if nonconsenting intervenors retain such rights,

even where they have specifically intervened to object to

entry of a consent decree, then nonconsenting nonparties

should enjoy at least the same modicum of procedural

protection. It is the lower court’s recognition of the re-

spondents’ right to such due process which the petition-

er’s complain about. The sole result of this Court’s denial

of a writ of certiorari will be that the respondents will

enjoy their day in court on the merits of their claims of

unlawful discrimination. Because their claims did not

accrue until after the decree was entered, they possessed

no claim ripe for presentation and disposition earlier.

The decision of the Eleventh Circuit is so plainly cor-

rect and consonant with the principles laid down by this

Court in the Local 93 case, there simply is no reason for

this Court to grant the petition and further delay re-

spondents’ day in district court.

The petitioners artfully attempt to portray this case

as identical to Marino v. Ortiz, 806 F.2d 1144 (2d Cir.

1986) which this Court earlier this term affirmed by

virtue of an equal division of the Justices. 484 US.

, 98 L.Ed.2d 629 (1988). The portrayal is flawed,

however. This case is not the same factual vehicle to re-

solve the issues which Marino presented. Marino posed

the question whether non-minority employees who could

have intervened in litigation brought by minority em-

5

ployees, but made no attempt to do so, should have been

permitted to maintain a separate action claiming that

the effect of a consent decree in that litigation was to

deny them equal protection of the laws in violation of

the Fourteenth Amendment. The U.S. Court of Appeals

for the Second Circuit held that the non-minority em-

ployees’ “proper course . . . would have been to intervene

in the lawsuit from which the consent decree issued.”

806 F.2d at 1146. That Court of Appeals consequently

dismissed the employees’ lawsuit as an improper col-

lateral attack on the consent decree. “Attempting inter-

vention . . . was obviously available when they com-

menced this action, since the final consent decree in that

litigation had not yet issued.” 806 F.2d at 1147.

In the instant case, the non-minority plaintiffs (re-

spondents) cannot properly be criticized for not attempt-

ing intervention before the consent decree was entered.

In fact, other non-minority employees did attempt to in-

tervene and were rebuffed in an order affirmed by the

U.S. Court of Appeals for the Eleventh Circuit:

In their motion to intervene, the BFA members could

not have alleged that they had suffered any reverse

discrimination as a result of the Board’s or the City’s

implementation of the affirmative action plan pre-

scribed by the consent decrees, because the court had

not yet approved those decrees. BFA members could

present such a claim now, however, since the decrees

have been approved and entered. For example, they

could do so by instituting an independent Title VII

suit, asserting the specific violations of their rights.

The consent decrees would only become an issue if

the defendant attempted to justify its conduct by

saying that it was mandated by consent decree.®

18Tt should be clear from this discussion that it is not

necessary for the BFA members to make a frontal attack on

the validity of the decrees between the parties in order to

assert a discrimination claim against their employers.

6

United States v. Jefferson County, 720 F.2d 1151, 1518

(llth Cir. 1983). Thus, due to the earlier order, the

respondents had no incentive to intervene. The Eleventh

Circuit reiterated in its opinion which is the subject of

the petitions for certiorari, “we took pains to point out

in Jefferson County that the denial of the motion to in-

tervene was not prejudicial to the movants partly be-

cause they were not precluded from instituting an in-

dependent Title VII suit.” Pet. App. p. 15a, n.21.

Clearly, these respondents, unlike the non-minority em-

ployees in Marino, had a reasonable basis for not acting

earlier. Petitioners here took no issue with the earlier

order; no petition for a writ of certiorari was filed from

the 1983 decision. Thus respondents here justifiably

waited for their cause of action to accrue before seeking

federal court relief. This fact alone distinguishes this

case from Marino and renders a grant of certiorari in-

appropriate.

The entitlement of a non-minority individual to a

“day in court” is explicit in Local 93 and Wygant. More-

over, it was held out to the respondents by the Eleventh

Circuit in a previous opinion in this same litigation as a

rationale for denying intervention to similarly-situated

individuals. In short, there is no good reason for this

Court to inject itself into the process at this time.

7

CONCLUSION

For the foregoing reasons, the Amicus requests that

the petitions for a writ of certiorari be denied.

Respectfully submitted,

THOMAS A. WOODLEY *

General Counsel

MICHAEL S. WOLLY

MULHOLLAND & HICKEY

1125 15th Street, N.W.

Suite 400

Washington, D.C. 20005

Telephone: (202) 833-8855

Attorneys for the Amicus

International Association

of Fire Fighters, AFL-CIO

* Counsel of Record