Reply Brief — Holland v. First Virginia Banks, Inc.

: | JAN 2% 1992

or cvvas OF THE CLERK

No. 91-974 .

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1991

ROBERT LEE HOLLAND,

Petitioner,

Vv.

FIRST VIRGINIA BANKS, INC.

and

DONALD BRENNAN,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITIONER'S REPLY BRIEF

Victor M. Glasberg

Counsel of Record

Jeanne Goldberg

Victor M. Glasberg &

Associates

121 South Columbus Street

Alexandria, VA 22314

(703) 684-1100

January 23, 1992

Table of Contents

Table of Authorities

Procedural Note. .....

Respondents' Brief Confirms the

Appropriateness of the Court's

Expedited Consideration of

Whether the Civil Rights Act of

1991 Applies to Pending Cases

Petitioner's Termination Claim

Is Properly Before This Court

Conclusion

ii

Table of Authorities

Alexandre v. AMP, Inc.,

57 FEP Cases 768

(W.D. Pa., Dec. 5, 1991) «+ © * © €

Davis v. Tri-State Mack Distributions, Inc.,

No. LR-C-89-912

(E.D. Ark., Dec. 16, 1991) o<¢ -.) ee eS «

Gersman v. Group Health Assoc., Inc.,

No. 91-724 =. + + * & & BOS Se 6s

Hansel v. Public Service Co.,

1991 U.S. Dist. Lexis 17904

(®. Coie., Bee. 84, i9Fas «+ « « © « es

Hicks v. Brown Group, Inc., No. 90-32. .

Immigration and Naturalization Service v.

Nat'l Center for Immigrants' Rights,

461 0.5, 1009 18907) wo Pe ea es

James v. American Int'l Recovery, Inc.,

C.A. No. 1:89-CV-321-RHH

(N.D. Ga., Dec. 3, isPii s

Kaiser Aluminum & Chem. Corp. v. Bonjorno,

110 S. Ct. 1570, 1577 (1990) a oe ae ae

King v. Shelby Med. Center,

No. 91~-AR-2258-S

(0. Bie. ; Bee. 38, 1 as

La Cour v. Harris County,

No. H-89-1532

(S$.D. Tex., Dec. 6, 399A) «© « © «

ofte

2

4

Laing v. United States,

423 U.S. 161 (1976) ..

Mojica v. Gannett Co., Inc.,

No. 90-C-3827

(N.D. Ill., Dec. 6, 1991) .

Nat'l Treasury Employees Union v. Kemp,

No. C92-0115

(N.D. Cal., filed Jan. 2, 1992)

Stender v. Lucky Stores, Inc.,

No. C-88-1467 (N.D. Cal., Dec. 19, 1991)

Thurston v. United States,

810 F.2d 438 (4th Cir. 1987)

Union Gas Co. v. Pennsylvania,

eve ©.8. 2625 (3087) ....

United States v. American Railway Express

Co.,

265 U.S. 425, 435 (1924)

Van Meter v. Barr,

57 FEP Cases 769

(>.9.C., Dec. 18, 1991) . ~. © « «© « By 38,

Weinberger v. Ramirez de Arreland,

471 U.S. 1113 (1985)

-ili-

Petitioner Robert Lee Holland replies as

follows to the respondents' brief opposing the

issuance of a writ of certiorari.

Procedural Note

At the time petitioner filed his petition

for writ of certiorari, there was pending in

the Fourth Circuit Court of Appeals petition-

er's motion to recall mandate in light of the

enactment of the Civil Rights Act of 1991. On

December 17, 1991, the court of appeals denied

this motion by order entered without opinion.

Respondents' Brief Confirms the

Appropriateness of The Court's

Expedited Consideration of

Whether the Civil Rights Act of

1991 Applies to Pending Cases

Respondents point out, at 7, that in the

weeks since the President signed into law the

Civil Rights Act of 1991, it has been held

inapplicable to pending cases. At latest

-1-

count, the act has been held to apply to

pending cases in Stender v. Lucky Stores,

Inc., No. C-88-1467 (N.D. Cal., Dec. 19,

1991); King v. Shelby Med. Center, No. 91-AR-

2258-S (N.D. Ala., Dec. 18, 1991); Davis v.

Tri-State Mack Distributions, Inc., No. LR-C-

89-912 (E.D. Ark., Dec. 16, 1991); Mojica v.

Gannett Co., Inc., No. 90-C-3827 (N.D. Ill.,

Dec. 6, 1991); and La Cour v. Harris County,

No. H-89-1532 (S.D. Tex., Dec. 6, 1991). It

has been held not to apply to pending cases in

Van Meter v. Barr, 57 FEP Cases 769 (D.D.C.,

Dec. 18, 1991), motion for certification to

Court of Appeals under 28 U.S.C. §1292(b)

granted, Jan. 10, 1992; Hansel _ v. Public

Service Co., 1991 U.S. Dist. Lexis 17904 (D.

Colo., Dec. 11, 1991); James v. American Int'l

Recovery, Inc., C.A. No. 1:89-CV-321-RHH (N.D.

Ga., Dec. 3, 1991); and Alexandre v. AMP,

Inc., 57 FEP Cases 768 (W.D. Pa., Dec. 5,

1991). In related developments, the Equal

Employment Opportunity Commission has ruled

that the 1991 act is not retroactive, 60

U.S.L.W. 2418 (Dec. 27, 1991), and as a result

has been sued in Nat'l Treasury Employees

Union v. Kemp, No. C92-0115 (N.D. Cal., filed

Jan. 2, 1992) for alleged violation of

E.E.O.C. claimants' rights under the current

law.

In the words of the court in Van Meter,

57 FEP Cases at 769, supra, there prevails a

"state of total confusion" regarding the

applicability of the 1991 act to pending

cases. The issue has now been presented to

this Court in at least the following cases (in

addition to the instant one) in which certio-

rari is being sought: Hicks v. Brown Group,

Inc., No. 90-324 and Gersman v. Group Health

Assoc., Inc., No. 91-724. The problem is

further exacerbated by the recognized uncer-

-3-

tainty in the law of retroactivity. See,

Kaiser Aluminum & Chem. Corp. v. Bonjorno, 110

S. Ct. 1570, 1577 (1990). There exists no

clear rule to guide the lower courts, and it

is the judiciary that will now reap what

Congress has recently sown.

The full consequences of the confusion

which the judiciary has inherited from Con-

gress will become clear when it is definitive-

ly decided, as it must be at some point,

whether the 1991 act is or is not applicable

to pending cases. For at that time it will

become necessary to contend with all the cases

which will end up having been "wrongly" adju-

dicated. The longer the issue remains unre-

solved, the greater the backlog of such cases,

the greater the resulting inequity, and the

greater the burden on the judiciary in coping

with the consequences. These "bureaucratic"

matters are properly of concern to this Court,

-4-

given, especially, the vast number of employ-

ment discrimination cases pending when the new

law was enacted.’ Cf. Laing v. United States,

423 U.S. 161, 167 (1976).

For these reasons, it is appropriate for

the Court to remand this case to the Fourth

Circuit for reconsideration in light of the

1991 act. It would be up to this Court wheth-

er and to what degree to opine, in a remand

order, on the applicability of the Civil

Rights Act to pending cases. Obviously,

judicial economy will be substantially en-

hanced were the Court to address the merits of

this issue sooner rather than later. i

Weinberger v. Ramirez de Arreland, 471 U.S.

1113 (1985) (granting, vacating and remanding

‘For this reason, the district court in

Van Meter, supra, on January 10, 1992 granted

plaintiff's motion in that case for an inter-

locutory appeal of its adverse decision on

this issue.

-5-

in banc opinion of the District of Columbia

Circuit for consideration of the Foreign

Assistance and Related Programs Appropriations

Act, Pub. L. No. 98-473 (1985)); Immigration

and Naturalization Service v. Nat'l Center for

Immiqrants' Rights, 481 U.S. 1009 (1987)

(granting, vacating and remanding decision of

the Ninth Circuit for consideration of the

Immigration Reform and Control Act of 1986,

Pub. L. No. 99-603 (1986)); Union Gas Co. Vv.

Pennsylvania, 479 U.S. 1025 (1987) (granting,

vacating and remanding opinion of the Third

Circuit for consideration of the Superfund

Amendments and Reauthorization Act of 1986,

Pub. L. No. 99-499 (1986)).

Petitioner's Termination Claim

Is Properly Before This Court

Respondents point out that petitioner did

not note an appeal of the issue of whether

discriminatory discharge remained actionable

under §1981 after Patterson. This is true but

of no consequence here. In defending respon-

dents' appeal, petitioner raised and fully

briefed this very issue at length. See appel-

lee's brief at 17-18, 34-41. It was also a

principal subject of his motion for reconsid-

eration in banc.* Petitioner did not have to

file a cross-appeal in order to raise this

issue since the argument was presented to

protect an existing judgment, by demonstrating

an alternative ground for reaching the same

result. United States v. American Railway

*mr. Holland also contended that only the

appellate court sitting in banc, and not an

appellate panel, could change the court's

previously-stated position that §1981 bars

discriminatory discharge.

-7J-

Express Co., 265 U.S. 425, 435 (1924); cf.

Thurston v. United States, 810 F.2d 438, 447

(4th Cir. 1987).° Respondents' citation to

settled authority arising out of a party's

failure to mention an issue below is inappo-

site.

‘The bank argued on appeal that Mr. Hol-

land's failure to be rehired was not distin-

guishable from his discharge. Had the court

of appeals permitted a discharge claim under

§1981, Mr. Holland would have kept his ver-

dict.

-8-

Conclusion

For these reasons and those stated in the

initial petition filed herein, the Court

should issue a writ of certiorari to review

the Fourth Circuit's decision in this case.

Respectfully submitted,

Victor M. Glasberg

Counsel of Record

Jeanne Goldberg

Victor M. Glasberg &

Associates

121 South Columbus Street

Alexandria, VA 22314

(703) 684-1100

Counsel for Petitioner

Dated: January 23, 1992

PRB.HL

“?.

*

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