Opposition Brief — Arrington v. Wilks

: ” —

(3) ) () MAY 39 191

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

EQSEPH F. SP

In The :

Supreme Court of the United States

October Term, 1987

~+

JOHN W. MARTIN, et al.,

v. Petitioners,

ROBERT K. WILKS, et ai.,

Respondents.

+

PERSONNEL BOARD OF JEFFERSON COUNTY, et al.,

vV. Petitioners,

ROBERT K. WILKS, et al.,

’ Respondents.

+

RICHARD ARRINGTON, JR., et al.,

v. Petitioners,

ROBERT K. WILKS, e¢ 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

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED....................... i

PARTIES TO THE PROCEEDINGS BELOW...... il

EE ow sce ccccccccsesccccscces ili

po ey |: Vv

CITATIONS TO OPINIONS BELOW.............. 1

EEE EEE 2

STATEMENT OF THE CASE..................... 3

eos cccccckoscccccccccces 7

I. The Court of Appeals Correctly Ruled That

A Consent Decree Does Not Immunize A Defen-

dant From The Discrimination Claims of Non-

eS ecw cece cccvecscoccccess 7

A. This Court has already decided that a

Title VII consent decree is akin to a volun-

tary affirmative action plan.............. 7

B. This case involves a different issue and

factual context than that which was not

resolved in Marino v. Ortiz............... 10

C. The Courts of Appeals are now cor-

rectly following the Cleveland decision ... 12

D. The Court of Appeals correctly recog-

nized the fundamental unfairness of bind-

ing a nonparty to an agreement he had no

ES 13

II. The Court of Appeals Properly Remanded

With Instructions to Carefully Evaluate the

Race-Conscious Conduct of the Defendants... 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

que occ icc cccccedeepasacesssuseseresces 16

B. The District Court was properly

directed to subject Birmingham’s race-

based conduct to heightened scrutiny on

SOONG . . occccccescnnseatacsdvseneorceess 18

Ill. If Certiorari is Granted, This Case Pro-

vides an Appropriate Opportunity for a Reex-

amination of Steelworkers v. Weber........... 20

CONCLUSION. 2... cccccccsccrccccccccscsccssbesels 21

Vv

TABLE OF AUTHORITIES

Page

CaSEs:

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

2s Heb cebOs bbs Ohh 4k 6 ROK ba kamsbeeeedebee wes 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) 9 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).. specced 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.

Pe EE i et ae NASR a. 11

In re Birmingham Reverse Discrimination

Employment Litigation, 37 FEP Cases (BNA)

FF ESS Rass 5

In re Birmingham Reverse Discrimination

Employment Litigation, 39 FEP Cases (BNA)

FF Se RR ee er 2

In re Birmingham Reverse Discrimination

Employment Litigation, 833 F.2d 1492 (11th

Ss WT hk kun 10.0 00-46bee Ab beeeeees ehaces passim

vi

TABLE OF AUTHORITIES-Continued

Page

Johnson v. Transportation Agency, 480 U.S. __,

107 S.Ct. 1442, 94 L.Ed.2d 615 (1987)

peocanKeansse chicks qeesduaenevetean 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

L..a.23d 629 (dam. 13, 1968) ......cccccccccccsces 10

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

sn us nc e640 ednece6.cdsskdheenaese esse eh en ees 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,

PB Fe: rrrerrrr err eer eee 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,

[ g¢ ) S ff. Serre fy yo Tere 12

Thaggard v. City of Jackson, 687 F.2d 66 (5th

MS nen cc gdekedss cabesteneeceseebekectess 12

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

Sy PES « 6 odvsechasdensdndowane 3, 5, 10, 15

Wilson v. Attaway, 757 F.2d 1227 (11th Cir.

BE dee eu el oes Bee bale 6 keane WEES OS ob-4 0 13

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

267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986)

peo Wed 4 dd bdbdtesaeekesesasbaseene 15, 16, 18, 19, 20

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

a

In The

Supreme Court of the United States

October Term, 1987

ie

JOHN W. MARTIN, et al.,

v. Petitioners,

ROBERT K. WILKS, et al.,

Respondents.

+

PERSONNEL BOARD OF JEFFERSON COUNTY, et ai.,

Vv. Petitioners,

ROBERT K. WILKS, et ali.,

Respondents.

~~

RICHARD ARRINGTON, JR., et al.,

V. 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, et al.

¢—

1

2

Respondents Robert K. Wilks, et al. respectfully

submit this brief in opposition to issuance of a Writ of

Certiorari to the United States Court of Appeals for the

Eleventh Circuit.

a

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 Fair Empl. Prac. Cas. (BNA)

1431 (N.D. Ala. Dec. 20, 1985) is misleading.! The

record entries which together constitute the final deci-

sion of the District Court are reprinted by petitioners

in ‘ue 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.

as ae oo

STATEMENT OF THE CASE

Respondents Robert K. Wilks, et al. are fifteen indi-

vidual white male empioyees 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 denial 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,

Wilks 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) 4

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 uv.

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

6

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. Jn 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.

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 (1986) (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 resolve 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 (4th 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.9

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

Ill. 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).12 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.

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,

RayMonpD P. Firzpatrick, JR.

Counsel of Record

P.O. Box 360187

Birmingham, Alabama 35236

(205) 988-5048

Attorney for Respondents

Robert K. Wilks, et al.