Opposition Brief — Pullman-Standard, Inc. v. Swint

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Supreme Court, U.S.

¥ FILED

No. 88-1601 | «(OCT 4 1883

JOoneeSPANIOL, JR.

IN THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1989

PULLMAN-STANDARD, INC., etc.,

Petitioner,

Louis SwINT, et al.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

JAMES U. BLACKSHER ELAINE R. JONES

5th Floor NAACP Legal Defense &

Title Building Educational Fund, Inc.

300 21st Street, North Suite 301

Birmingham, Alabama 35203 1275 K Street, N.W.

(205) 322-1100 Washington, D.C. 20005

(202) 682-1300

OscaR W. ADAMS, III

Brown Marx Building JuLIUS L. CHAMBERS

Suite 729 ERIC SCHNAPPER*

2000 First Avenue NAACP Legal Defense &

Birmingham, Alabama 35203 Educational Fund, Inc.

(205) 324-4445 16th Floor

99 Hudson Street

New York, New York 10013

(212) 219-1900

Counsel for Respondents

*Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

TABLE OF CONTENTS

Temie OF COMGCORES 24s cre cred sn

Tahlia GE BMCNMOTLCIOS .cccecacvece

Reasons Why the Writ Should

eS a ee ee ee Pa a

I. Discrimination in the

Selection of Super-

ee es i ae ee

II. The Scope of the Class

III. The Statute of Limita-

a eee eter er ae

CO en sk ke hea eee ae

iia

T EO UTHORITIES

Page

Boudreaux v. Baton Rouge Marine

Contr. Co., 437 F.2d 1011-

(5th Cir. 1971) eoeeeeee#ee#er#s#peeeee 24

Coopers & Lybrand v. Livesay,

| 437 U.S. 463 (1978) .wcccccces 15

Dothard v. Rawlinson, 433 U.S.

$31. (2977) vodknnseeeee ; 10

East Texas Motor Freight Co.

v. Rodriguez, 431 U.S. 395

(1977) caecoctecnsececesaseeses ao

Franks v. Bowman Transportation

Co., 424 U.S. 747 (1976) .e. 19,20,27

General Telephone Co. of South-

west v. Falcon, 457 U.S.

149 (200 660 x5aokne eee 15

Goodman v. Lukens Steel Co.,

482 U.S. 656 (1987) wceccses oe 25

Hazelwood School District v.

United States, 433 U.S.

re: ee cg} Aree” eee 9

Hughes Tool Co. v. Trans World

Airlines, 409 U.S. 363

(1973) eoeeseevse*ee#*e#erfesekee#s#hes#st#ee#te##*# eeees 7

Johnson v. Railway Express

Agency, Inc., 421 U.S. 454

(1975) 8-2 OS Oe eS Se Se SF eee ee ee 25

Johnson v. Transportation

Agency, 480 U.S. 616 (1987) . 9

Jones v. Preuit & Mauldin,

763 F.2d 1250 (1ith Cir.

1985) eoeeteee#esenreeee#e#*# eeeee#e#ee#ee#e+feese

Mercer v. Theriot, 377 U.S.

DU RIED cceeeceeseoseseecces

Owens v. OKure, 109 S.Ct. 573

hs ws 6 bbb 6 66 6666 wee 6 6 6

Pullman-Standard v. Swint,

See wVews POG CIGBL) ccccccces

Swint v. Pullman-Standard,

eRe ce esaceescaeceoeses

Teamsters v. United Sates,

Dee wems @a6 CA97T7) wossccecces

Wards Cove Packing Co. v.

Atonio, 104 L.Ed.2d 733

PPE Ueee Geb eaetsecesceeeces

Watson v. Fort Worth Bank &

Trust Co., 101 L.Ed.2d 827

Dt sth eu G 6 oes «6 66666080 6%

Wilson v. Garcia, 471 U.S. 261

Dl Th a's by 66-6 4686 68660 0 Ge %

28 U.S.C. § 1292 (bd). cece

Teaser BPEL £eecearoncecs'e

i rene Oe REED oct kcenenecces

ill

Page

Title VII, Civil Rights Act of

Dee égeaeneenednn rere rey , Passim

Federal Rules of Civil

PEGCOGULG, RULG 8 cccccccesss 22,23

Federal Rules of Civil

PEOCOGGUEFG, RUG 23 ceosecseoses 19,20

Moore’s Federal Practice ...... 23

Wright & Miller, Federal

Practice and Procedure ...... 23

No. 88-1601

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

PULLMAN-STANDARD, INC., etc.,

Petitioner,

Vv.

LOUIS SWINT, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents Louis Swint, et al.,

respectfully request that this Court deny

the petition for writ of certiorari.

(1) Petitioner asserts that the

court of appeals erred in finding that the

employer’s method of selecting foremen had

an unlawful disparate impact in violation

of Title VII. (Pet. 14-20) The thres-

hold difficulty with this contention is

that for procedural, arguably jurisdic-

tional ‘reasons, it cannot be raised on

appeal at this point in the litigation.

The Eleventh Circuit held that these

promotion practices violated Title VII,

but it did so not in its recent 1988

opinion, but in its earlier 1980 opinion.

(Pet. App. 222a-227a). Petitioner could

have sought review of that decision nine

years ago, and it did, but in vain.

Petitioner’s 1980 certiorari petition

expressly asked this Court to reconsider

this aspect of the 1980 Eleventh Circuit

decision,+ but the Court limited its grant

of certiorari to questions related to the

disputed seniority systen. Pullman-

Standard v. Swint, 451 U.S. 906 (1981)

(Pet. App. 232a).

Although the Eleventh Circuit’s 1988

opinion also addressed one aspect of this

issue, it did so subject to a constraint

equally applicable to this Court. The

foreman promotion issue was before the

court of appeals in 1988 only because, and

to the extent that, a single subsidiary

question had been certified for inter-

locutory appeal pursuant to 28 U.S.C. §

1292(b). The question so certified was

whether

there has been a finding of

intentional] discrimination in

the selection of supervisory

1 The third and fourth questions

in that petition dealt with the selection

of supervisors. Petition for Writ of

Certiorari, No. 80-1190, pp. ii-iii; 27-

30.

personnel eee and eee the

defendant is subject to

potential liability at a Phase

II hearing with_respect to such

claims.

(Pet. App. 284a) (emphasis added) (See

also jd. at 282a-283a) .2 Petitioner’s

central contention in the 1988 appeal was

that the 1980 opinion fell short of the

finding of jntentional discrimination

that, petitioner contended, was necessary

to warrant proceeding to a Phase II

hearing regarding the amount of

petitioner’s liability. The Eleventh

Circuit dismissed this argument as

irreievant, explaining that its 1980

decision had rested on a finding of

unlawful discriminatory jmpact, not

“ The district court order to

which this question apparently referred

had ruled that the 1980 circuit opinion

constituted a sufficient finding of

intentional discrimination. (Pet. App.

282a).

unlawful discriminatory intent. 3 Under

section 1292(b) the only issue regarding

supervisors over which the Eleventh

Circuit had jurisdiction in the 1988

certified appeal was whether the 1980

opinion lacked an allegedly essential

finding of discriminatory intent;

petitioner does not here contest that

aspect of the 1988 opinion, and does not

ask this Court to review it.

The 1988 opinion does go on to

explain the holding of the 1980 decision,

3 Pet. App. 5la-52a:

"(Ijn the company’s view, the

Swint VI holding does not constitute

the required finding of intentional

discrimination.... Zt i168 CGEWR ace

that Swint [VI] does not include a

finding that Pullman intentionally

discriminated in its selection of

supervisors. That observation,

however, is irrelevant: the

plaintiffs here clearly proceeded on

a disparate impact, rather’ than

disparate treatment, theory, and thus

did not need to prove discriminatory

intent."

and to note the different standard of

proof in a disparate impact case and a

disparate treatment case. But this

commentary does not and could not present

a distinct issue, outside the scope of

section 1292(b), that could be reviewed by

this Court. This Court reviews holdings,

not reasons, and the dispositive holding

in the certified appeal was that the 1980

opinion did not lack an essential finding

of discriminatory intent, a holding with

which petitioner does not now disagree.

We do not suggest that petitioner is

forever precluded from bringing to this

Court the issues raised in its petition,

but only that it cannot do so at this

interlocutory point in the litigation.

Once a final judgment has been entered on

the foreman issue, petitioner could seek

review by this Court and ask it to reach

back and correct any legal error

underlying that judgment. erce ¥.,

iot, 377 U.S. i3S2,; 153-54 (1964).

This Court could do so despite having

denied certiorari in 1980. u s To

o. v. Trans World Aj ines, 409 U.S. 363,

365 n. 1 (1973). But at this point in the

litigation it would be inconsistent with

the constraints of section 1292(b), and

with the policy against interlocutory

appeals, to convert an appeal of a

narrowly drawn certified question into a

plenary interlocutory review of any and

all aspects of the claim.4

4 For the same reason petitioner

cannot at this point in time seek review

of its objection that certain aspects of

the Eleventh Circuit’s 1980 opinion, which

this Court previously declined to review,

constituted improper appellate

factfinding. (Pet. 26-28). Petitioner

objects that in 1988 the Eleventh Circuit

improperly "refused to reconsider" its

1980 decision. (Pet. 26). In light of

the limited scope of the section 1292(b)

certified question, that refusal was for

procedural reasons entirely proper.

(2) Petitioner suggests that the

1980 and 1988 Eleventh Circuit opinions

failed to anticipate the changes in the

law brought about by Watson v. Fort Worth

Bank & Trust Co., 101 L.Ed.2d 827 (1988),

and, presumably, Wards Cove Packing Co.

v. Atonio, 104 L.Ed.2d 733 (1989). There

is dictum in the 1988 opinion placing on

an employer in a disparate impact case not

only the burden of production, but also

the burden of proof regarding the business

Justification for practices: with a

disparate impact. (Pet. 18-20). (See

Pet. App. 53a). But in this case the

actual 1980 finding of a Title VII

violation was, in the view of the 1988

appellate panel, premised on a holding

that petitioner had failed to meet its

burden of production. The court of

appeals in its 1988 opinion explained that

the 1980 opinion was grounded on a

determination that "Pullman had offered no

legally acceptable evidence that its

subjective selection procedure was 4

business necessity." (Pet. App. 53a).

Petitioner asserts that the Eleventh

Circuit held "in effect" that a plaintiff

could establish a prima facie case of

disparate impact without having to

compare an employer’s selection rate with

the composition of the pool of qualified

individuals. (Pet. 14-17). The Eleventh

Circuit’s 1988 opinion, however, expressly

emphasized the existence of just such a

requirement:

We recognize fully that Johnson [v.

Transportation Agency, 480 U.S. 616

(1987) } and elwoo Schoo

District v. United States, 433 U.S.

299 (1977)] require plaintiffs to

recognize the basic qualifications

for a position and exclude from

their statistical pools persons who

are obviously unqualified.

(Pet. App. 56a nn. 50). Petitioner

suggests that the appellate court, in

finding a prima facie case of disparate

impact, improperly overrode the

determinations of the district court (Pet.

15); in fact, the district court too found

such a prima facie case. (Pet. App. 17la,

222a).

Disputes regarding whether evidence

of disparate impact is sufficiently

refined raise essentially fact-specific

questions about the practices and business

needs of an individual employer. > In this

case that factual assessment has proved

particularly difficult. As the Court of

Appeals observed in 1980, there was a

"lack of any articulated or defined skills

which are necessary to perform capably as

a temporary or salaried foreman at

° Dothard v. Rawlinson, 433 U.S.

321, 330-31 (1977). ("If the employer

discerns fallacies or deficiencies in the

data offered by the plaintiff, he is free

to adduce countervailing evidence of his

own.")

Pullman-Standard." (Pet. App. 226a). The

appellate court noted in its 1976 opinion

that there were "no established criteria

for selection of new foremen." (Pet.

App. 136a).

The factual problems involved in

evaluating this record are illustrated by

the somewhat different manner in which

petitioner has characterized its own

practices. In its pending petition the

company maintains that "experience in the

particular or related department was

normally required" for promotion to a

foreman position. (Pet. 15). (Emphasis

added). But in its 1980 certiorari

petition the company adamantly insisted

that there was no such requirement:

Pullman clearly imposed no

requirement that a foreman be

promoted from within the same

department.... ([Tjhe Fifth Circuit

apparently misunderstood it did....

[and] then held that Pullman

discriminated against blacks in

promotions to foremen ... because the

imaginary requirement that super-

visors be promoted from within the

same department was not a "business

necessity."®

It would not be appropriate to grant

certiorari to resolve the fact-specific

conflict between the company’s’ two

certiorari petitions.

II. co the ass

The issue framed by petitioner

regarding the scope of the class also

appears to be unreviewable at this

interlocutory point in the litigation,

although it could be raised at a later

date. The authority of the appellate

courts to address this question is

circumscribed by the scope of the specific

6 Petition for Writ of

Certiorari, No. 80-1190, pp. 28-29

(emphasis added). See also id. at 9 ("The

evidence and the District Court’s own

findings showed that Pullman did not

restrict promotions to temporary foreman

to intradepartmental ones"), id.

("undisputed evidence’ shows {that

experience in the same department] was

never a requisite to such promotions").

BE ct an

question certified under section 1291(b).

That question was whether

the named plaintiffs [have] standing

to represent class members claiming

discriminatory initial job

assignments j

July 17, 1969 to August 16, 1974.

(Pet. App. 285a) (Emphasis added).’ The

question so certified is now ciearly moot.

The district court held that assignment

discrimination ended by January 31, 1969,

and the Eleventh Circuit upheld that

finding. (Pet. App. 41a) The only

assignment discrimination claims still

7 Although section 1292 (b)

provides for certification of an order for

an interlocutory appeal, the district

court’s certification in this regard makes

no reference to the issue having been

resolved by any prior district court

order, but simply certifies the quoted

question. In requesting leave to appeal

by the Eleventh Circuit, petitioner

attributed to the prior court of appeals

decision, not to the district _court, the

decision to sustain this aspect of the

class. Petition of Pullman-Standard for

Leave to Appeal Pursuant to 28 U.S.C. §

1292(b), No. 86-2143 (llth Cir), pp. 27-

31.

being litigated in this case involve

assignments occurring prior to February 1,

1969.

Petitioner contends that the class

represented by the named plaintiff cannot

include employees who were subject to

"post-Act discrimination in ear

assignments." (Pet. 23), i.e. employees

subjected to that discrimination after

July 1, 1965. But the period from July

1965 through January 1969, the era of the

proven actionable assignment discrimina-

tion in this case, is outside the scope of

the certified section 1292(b) question.

Similarly, petitioner argues that the

named plaintiffs cannot litigate class

claims of discrimination in the selection

of supervisors; but that too is clearly

outside the scope of the certified

question. Again, as we noted above, there

are issues which petitioner can raise

after final judgment. In both General

Telephone Co. of Southwest v. Falcon, 457

U.S. 147, 153 (1982), and East Texas Motor

Freight v. Rodriguez, 431 U.S. 395, 400

(1977), the appeal regarding the scope of

the plaintiff class was entertained only

after the entry of final judqment on the

merits of those claims. "(Ojrders

granting class certification are

inherently interlocutory," Coopers &

brand v ivesay, 437 U.S. 463, 476

(1978), and are “subject to effective

review after final judgment." Id., 437

U.S. at 469.

The decision of the appellate court

approving the scope of the class in this

case reflected not an unthinking "‘across-

the-board’ approach to Title VII class

actions" (Pet. 21), but a carefully

reasoned analysis of the claims of the

named plaintiffs and the putative class

members. The Eleventh Circuit correctly

noted that

{(fjrom the start, the plaintiffs’

basic complaint has been that Pullman

prevented black employees from moving

into its higher-level positions

through a combination of discrimina-

tory initial assignments and a

departmental seniority system. At the

time of certification, this claim was

legally identical to that of every

other member of the class.

(Pet. App. 39a-40a). There were from the

outset of this litigation two questions of

fact common to the named plaintiffs and

all of the putative class members: (1)

Did the company engage in a pattern and

practice of assigning newly hired black

workers to less desirable departments? and

(2) Was the effect of such discrimination

in assignments unlawfully perpetuated by

the plant seniority system? See Teamsters

v. Uni 4 Ss, 431 U.S. 324, 343-56

(1977).® The named plaintiffs could not

prevail without demonstrating that they

had been given initial assignments on the

basis of race; they undertook to do so, as

is normal in a race discrimination case,

by attempting to show that the company

engaged in a longstanding general practice

of discrimination in assignments.

This case was initially certified in

1974, without objection, to include a

Class of all black workers employed at the

plant since 1965.% (Pet. App. 9a) The

district court initially held that there

had been relatively little assignment

8 The district court noted in 1974

that the class issues included, “Does the

system of departmental seniority ...

perpetuate the effects of past discrimina-

tion in the assignment of black employees

among the various departments?" (Pet.

App. 66a).

9 The class action encompassed all

claims arising within one year of the

earliest Title VII charge. (Pet. App.

20a). The earliest such charge was filed

in 1966.

discrimination even prior to 1965. (Pet.

App. 74a). The Fifth Circuit in 1976

vacated that holding and remanded the

issue for further proceedings. (Pet. App.

128a). On remand in 1977 the district

court found that at least until 1965 there

had indeed been a_e general policy of

discrimination in assignment. (Pet. App.

160a-16la). Thereafter litigation

continued regarding when that discrimi-

natory practice ended, and regarding

whether the effects of that discrimina-

tion were unlawfully perpetuated by the

seniority system.?}°

At the point in time when this case

was filed, and the class was certified,

respondents’ claim that petitioner engaged

in a general practice of assignment

10 The validity of the seniority

System is the subject of our own

petition. Swint v. Pullman-Standard Co.,

No. 88-1602.

discrimination, and perpetuated the

effects of that discrimination through its

seniority system, presented a paradigm of

the type of claim for which a Rule

23(b) (2) class action is appropriate.+1

If the individual claims of the named

plaintiffs had thereafter failed, that

would not have precluded them from

continuing to represent the certified

class. Franks v. Bowman Transportation

Co., 424 U.S. 747, 753-57 (1976). A

fortiori respondents are not precluded

from continuing to represent the class

simply because they have now succeeded in

showing that they were the victims of

assignment discrimination.

Petitioner objects that the named

plaintiffs do not have "a personal stake"

il Class certification is

appropriate if, jnter alia "“(tjhe party

opposing the class has acted... on

grounds generally applicable to _ the

class." F.R.Civ. Pro., Rule 23(b) (2).

in whether there was assignment discrimi-

nation after 1965. (Pet. 21). But this

is an attack, not on the decision of the

Eleventh Circuit, but on Rule 23 itself.

A class representative virtually never has

a “personal stake" in whether individual

class members personally collect a money

judgment or receive the benefits of an

injunctive decree. As this Court

explained in Franks, even after the claims

of a class representative have been

resolved and he or she no longer has any

"personal stake- in the outcome" of the

litigation, class certification confers on

the named plaintiffs authority to continue

to represert the interests of the class

members whose claims remain in dispute.

Franks v. Bowman Transportation Co., 424

U.S. at 752-57.

III. The Statute of Limitations

Petitioner argues that the statute of

limitations for a section 1981 claim

arising in Alabama should be one year

(Pet. 28-29), rather than the six year

period adopted by the court below. (Pet

App. 29a-35a). Petitioner does not

contend that the claims in this case are

time barred, but seeks only to shorten the

period for which it faces back pay

liability. The practical significance of

this issue is in the instant case somewhat

limited. The Court of Appeals held that

the limitations period for respondents’

Title VII cl ims, which encompass all the

claims also asserted under section 1981,

commenced on September 28, 1966, (Pet.

App. 19a-28a), a holding which petitioner

does not challenge. Utilization of a six

year limitation period for the section

1981 claim in fact extends the total

period of back pay liability less than a

year, since most of that six year period

overlaps the years when back pay would in

any event be available under Title VII.

Petitioner urges that Qwens v. Okure,

109 S.Ct. 573 (1989), indicates that the

one-year Alabama residual statute of

limitations, rather than a six year

limitations period, should now be applied

in section 1981 actions arising in that

state. That contention, even if correct,

would not control the rule of limitations

to be applied in this case.

Rule 8(c), F.R.Civ. Pro., requires a

defendant to "set forth affirmatively" in

its answer any "statute of limitations"

defense. In its original 1971 answer,

petitioner stated:

This defendant avers that the

applicable statutes of limitations,

Alabama Code, Title 7, Sections 21

and 22, bar all claims made in the

complaint, based on 42 U.S.C.A.,

Section 1981, arising more than six

years prior to ‘te filing of the

complaint.

(Pet. App. 35a n. 35) (Emphasis added).

Petitioner never sought to amend its

answer, and did not assert the existence

of any shorter limitations period until

this litigation had been pending for over

a decade.12 The Eleventh Circuit properly

recognized that such conduct, at least

ordinarily, constitutes "a waiver of the

shorter statute." (Pet. App. 35a).13

Even if it were not now too iate for

petitioner to disavow its longstanding

12 The Court of Appeals noted that

"(tjhere is a strategic reason why a class

action defendant might waive objections to

the size or inclusiveness of a class: a

favorable decision against an all-

inclusive class of plaintiffs will in

many instances bar further suits." (Pet.

App. 2la n. 26).

13° +All circuit courts agree that a

failure to plead a statute of limitations

waives that affirmative defense under Rule

8. 5 Wright & Miller, Federal Practice

and Procedure, § 1278; 2A Moore’s Federal

Practice, § 8.27[4].

position that section 1981 claims are

subject to a six year period of

limitations, the major issues raised by

Owens in this case would concern

retroactivity. During the 18 years since

this case was filed the law regarding the

section 1981 period of limitations has

reversed field several times. At the

time this case was first filed, the (then)

Fifth Circuit law was that the period of

limitations for a section i981 claim was

ten years, and that that limitations

period itself was tvlled by the filing of

a Title VII charge.14 fhe district Judge

in this case applied that tolling rute in

his 1974 order specifying the period

during which back pay claims on behalf of

the class were at issue.15 In 1975

14 Boudreaux v. Baton Rouge Marine

Conte. . Co. . 437 F.2d 1011, 1017 n. 16

(5th Cir. 1971).

15° Pet. App. 20a.

Johnson v. Railway Express Agency, Inc.,

421 U.S. 454 (1975), overturned the

circuit court’s tolling rule. For a time

the Fifth Circuit then held that section

1981 claims should be governed by the

Alabama limitations period for contract

actions; that line of decisions was

overturned by Wilson v. Garcia, 471 U.S.

261 (1985) (§ 1983) and Goodman v. Lukens

Steel Co., 482 U.S. 656 (1987) (§ 1981).

The Eleventh Circuit thereafter construed

Wilson to require the use of the six year

Alabama rule for trespass to person or

.liberty. Jones v. Preuit & Mauldin, 763

F.2d 1250, 1256 (11th Cir. 1985). Now,

petitioner maintains, Jones has in turn

been overruled by Owens. Which of this

succession of supervening decisions should

and should not be applied retroactively to

the unique and complex circumstances of

this litigation is a fact specific

question peculiar to this case. It is not

a question which warrants review’ by this

Court or which, after 18 years of

litigation, respondents should be required

to litigate yet again.

Cc ON

This case, possibly more than any

employment discrimination suit of our era,

has been buffeted and prolonged by

seemingly incessant changes in the law.

This case has been tried 4 times, and has

to date given rise to 11 opinions. The

foreman selection issue was. originally

tried 15 years ago, and the finding of

liability was made 9 years ago. The

district court first found 15 years ago

that there had been a practice of pre- and

post-Act assignment discrimination. (Pet.

App. 77a). To date not a single penny of

back pay has been ordered to implement

those liability determinations, and Stage

ai aN Rs A A palin wt

II proceedings to calculate the back pay

awards have not even begun. After 18

years of litigation, many of the original

class members have died. (Pet. App. 3a).

It would be unconscionable to now require

that this entire process begin anew.}®

For the above reasons, the petition

for a writ of certiorari should be denied.

Respectfully submitted,

ELAINE R. JONES

NAACP Legal Defense &

Educational Fund, Inc.

Suite 301

1275 K Street, N.W.

Washington, D.C. 20005

(202) 682-1300)

16 See Franks Vv... Bowman

» 424 U.S. at 757 n. 9

("to ‘’split up’ the underlying case and

require that the individual class members

begin anew ... would be destructive of the

ends of judicial economy as well as

postpone indefinitely relief which under

the law may already be long overdue.")

JAMES U. BLACKSHER

5th Floor

Title Building

300 21st Street, North

Birmingham, Alabama 35203

(205) 322-1100

OSCAR W., ADAMS, III

Brown Marx Building

Suite 729

200 First Avenue, North

Birmingham, Alabama 35203

(205) 324-4445

JULIUS L. CHAMBERS

ERIC SCHNAPPER*