Petition for Writ of Certiorari — City of Columbus v. Brunet

No._ | vA

r 2

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1987

THE CITY OF COLUMBUS, OHIO, et al., Petitioners,

¥

ANN BRUNET, et al., Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS

FOR THE SIXTH CIRCUIT

EILEEN A. GROVES

Assistant City Attorney

90 West Broad Street

Columbus, Ohio 43215

(614) 222- 7385

Counsel of Record

RONALD J. O'BRIEN

City Attorney

Columbus, Ohio

Of Counsel

January 18, 1988

QUESTIONS PRESENTED

1. Did the Court of Appeals err when it dismissed

as moot the appeal of Petitioners from a Title VII

liability judgment and an injunction because the

Petitioners had complied with an enumerated portion

of the Injunction after their motion for a stay of the

enumerated portion had been denied by both the trial

and appellate courts?

2. Did the Court of Appeals err when it dismissed

as moot the appeal of Petitioners from a Title VII

liability judgment and an injunction holding the

Judgment Entry filed by the Court was improper, the

result of the dismissal being res judicata upon the

issues raised in the appeal?

3. Did the Court of Appeals apply a technical

rather than practical determination of finality which

precluded Petitioners from Court of Appeals review of

District Court decision which was in conflict with

Supreme Court and Court of Appeals decisions?

LIST OF PARTIES

The parties tc the proceedings below were the

petitioners, the City of Columbus, Ohio, the Columbus,

Ohio Civil Service Commission, Dana G. Rinehart,

Mayor of Columbus and Alphonso C. Montgomery,

Public Safety Director.

The respondents before this Court include Lynn

Walters Shearrow, Rebecca Schumacher, Edwina

Hornung and Ann Brunet

TABLE OF CONTENTS

Page

QUESTIONS PRESEMIED. 02. cccccsccscnscssessssesess i

eS: 2 me Pere rr ry Teer ee eT ror ee ee ii

PE gg pc oe kb nds den nbaene es bhebeeanaen 1

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Se DE. pnb bce egseacandeeen bias dees seedse 5

STATEMENT OF THE CASE......... “Sets ebb ciedeeassaeee 6

REASONS FOR GRANTING THE WRIT ...............4.. 15

I. The dismissal by the Court of Appeals of

Petitioners’ appeal from a Title VII liability

judgment and injunction as moot was in error

because compliance with the injunction had been

upon protest. This dismissal is in conflict

with decisions of this Court and other

CEOBMERG snc a s'c bk 0 ood ee eo debbee bade 15

II. The dismissal by the Court of Appeals of

Petitioners’ appeal from a Title VII liability

judgment and injunction as moot results in a res

judicata effect upon the issues raised on appeal

without review, depriving the Petitioners of

their Constitutional right of appeal from a

District Court decision -which were in conflict

with decisions of this Court and other

CEPOMRES «sc ceed cedar hee etaeee tse 20

III. The Court of Appeals determination on

finality of the District Court decision is in

conflict with decisions of this Court and other

COPOUEEG ek nc REC RRMR ERR E SAREE Eee Rees 24

CER 6 ech ee heed cea ceeesnananseaeseneoseane 28

APPENDIX (Per Curiam decision of the Court of

Appeals, the denial of the Petition for

Rehearing and the Opinions and Orders’ and

Judgment Entry of the District Court.......... la.

iii,

TABLE OF AUTHORITIES

Cases: Page

Alexander v. Aero Lodge No. 735, International

Asso., 565 F. 2d 1364 (6th Cir. 1977), cert.

Gamtad, 436 U.8B. B46 CASTE) «scccccccscccesccecs 14

Alton & Southern Ry. v. International Ass'n of

Machinists & Aerospace Workers, 463 F.2d 8/72

CD. CS. GEE. BFAD cccccccvcccvssrcesscsccsccseress 19

American Grain Asso. v. Lee-Vac, Ltd., 630 F.2d

BOS CSE GEE. BGG) co ccccccncccescocccvedscsceces 17

Burke v. Barnes, et al., 479 U.S. _, 93 L.Ed@.2d

pmol )) PP ewwrrrrrrerrrrrrrerrrrrrr rr rrr rt 17,20

Catlin Vv. United States, 324 U.S. 229

?\ -) PPPerrrrrry rere rrrrrerrrrrrrr rere rere? fy 24,27

City of Louisa v. Levi, 140 F.2d 512 (6th Cir.

Cohen v. Benefical Industrial Loan Corp., 337

Di... DOL CUED). cccccccccscssecccssssecscssseess 25

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

CDOTS) cc cccccse essere sesesscesseeeeseseseececes 25

Crowell, et al. v. Mader, et.al., 444 U.S. 505

eo) |) PPPrrrrrrrrrrerrererererereriererrrerreriy 18,20

Dickinson v. Petroleum Conversion Corp. ,338 U.S.

a?) Pe a a a 26

Gillespie v. United States Steel Corp., 379 U.S.

FL? Pererrererrrerrerrerererrerreererrrererrre 26

Heike v. United States, 217 U.S. 423 (1913)....25

International Harvest@ér Credit Corp. v. East

Coast Truck, 547 F.2d 888 (5th Cir. 1977)...... 18

Investment Company Institute v. Federal Deposit

Insurance Corp., 728 F.2d 518 (D.C.Cir. 1984)..19

Local No. 28, Sheet Metal Workers’ International

Association, et al. v. EEOC, U.S. oe

EsctcM BOG CAGGOP ccs cccascevisesvaarsveeevasers 12

Pennsylvania v. Ritchie,480 U.S. __, 94 L.Ed.2d

eG) Pr a a ee ar ae ea ee ee 25

Seane vw. Tenn. 439 U.S. SBD. CAST D) «cc vwcctvesens A?

Thibaut v. Ourso, 705 F.2d 118 (5th Cir. 1983).17

United States _ v. Munsingwear, 340 U.S. 36

).. } PPPOE eTePETCTTEC EV CTC UCr TET er Te 20,22

Western Addition Community Organization,et al.

v. Alioto, et al., 514 F.2d 542 (9th Cir.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1987

CITY OF COLUMBUS, OHIO, et al., Petitioners

V.

ANN BRUNET, et. al., Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The Petitioners, City of Columbus, Ohio, et al.,

respectfully prays that a writ of certiorari issue to

review the judgment and opinion of the United States

Court of Appeals for the Sixth Circuit, entered in the

above - entitled proceeding on August 25, 1987 and

rehearing being denied on October 19, 1987.

OPINIONS BELOW

The Per Curiam Opinion of the Court of Appeals

for the Sixth Circuit has not been published. It is

contained in the appendix hereto, p.la, infra.

The Opinions and Orders of the United States

District Court for the Southern District of Ohio

(Kinneary, D.J.) were reported at 642 F. Supp. 1214,

and are contained in the appendix hereto, p.7a, infra.

The Opinions and Orders of the District Court

regarding the 1986 examination have not been

published and are contained in the appendix hereto,

p.100a, infra.

JURISDICTION

The Respondents brought the above-captioned

cause of action in the United States District Court for

the Southern District of Ohio pursuant to 42 U.S.C.

§ 2000e in November 1984. In January 1985, the

Respondents sought and obtained leave to amend their

complaint to allege a cause of action pursuant to 42

U.S.C. § 1983. The District Court, on January 17,

= ee

1986, issued an Order and Decision dismissing the

claims under 42 U.S.C. § 1983 in respect to the 1980

female applicants. The District Court on May 13, 1986

rendered judgment for the petitioners in respect to 42

U.S.C. § 2000e for the 1980 examination and for the

claims under 42 U.S.C.§ 1983 based on the 1984

examination. The District Court rendered judgment

for the respondents in respect 42 U.S.C.§ 2000e for

1984 examination. On May 30, 1986 the District Court

rendered an Opinion and Order in regard to the remedy

upon the liability judgment. Both parties appealed

from these decisions to the Sixth Circuit Court of

Appeals.

The District Court, on May 21, 1987, rendered an

Opinion and Order finding the 1986 examination

content valid as modified. On June 12, 1987, the

District Order ordered the petitioners to hire female

applicants pursuant to ratio calculations submitted, for

all future classes. Both parties have appealed from

these decisions and these appeals are

a

pending. They are not at issue before this Court.

The petitioners, on June 26, 1987, filed a Motion

to Stay Proportional Hiring pending the appeals from

the May 1986 judgment. This motion was denied by the

District Court. On July 7, 1987 the petitioners filed

with the Court of Appeals an Emergency Motion for a

Stay. The Court of Appeals denied the stay on July 10,

1987. The petitioners then hired the 1984 affirmative

action female as required by the district court's orders.

On August 4, 1987, the parties appeared for oral

argument and the Court of Appeals indicated that the

appeals from the May 1986 Opinions and Orders were

moot because the petitioners had proportionally hired

1984 females in fulfillment of the May 30, 1986

injunction. A Per Curiam decision was rendered on

August 25, 1987 dismissing as moot the parties’

appeals. The petitioners timely petitioned for

rehearing and the petition was denied by the Court of

Appeals on October 19, 1987.

a

The jurisdiction of this Court to review the

judgment of the Sixth Circuit is invoked under 28

U.S.C. § 1254(1).

STATUTE INVOLVED

28 U.S.C. § 1291. Final decisions of district courts.

The courts of appeals (other than the United

States Court of Appeals for the Federal Circuit) shall

have jurisdiction of appeals from all final decisions of

the district courts of the United States, the United

States District Court for the District of the Canal

Zone, the District Court of Guam, and the District

Court of the Virgin Islands, except where a direct

review may be had in the Supreme Court. The

jurisdiction of the United States Court of Appeals for

the Federal Circuit shall be limited to the jurisdiction

described in sections 1292(c) and (d) and 1295 of this

title.

STATEMENT OF THE CASE

Respondents, Lynn Walters Shearrow, Rebecca

Schumacher and Edwina Hornung took the 1980

Columbus Firefighter Entrance Examination.

Respondent Ann Brunet took all parts of the 1984

Columbus Firefighter Entrance Examination.

Respondent Edwina Hornung only took a portion of the

1984 examination. These respondents filed on

November 19, 1984, a class action complaint pursuant

to 42 U.S.C.§ 2000e—S(f) alleging that they were

discriminatorily denied firefighter entrance positions

within the Columbus Division of Fire. Respondents

Shearrow, Schumacher and Brunet, subsequent to the

filing of the complaint, obtained right-to-sue letters.

Respondent Hornung never filed a charge with the Ohio

Civil Rights Commission or the Equal Employment

Opportunity Commission.

Hiring examinations for the position of Firefighter

in the Columbus Division of Fire were administered in

1978, 1980, and 1984. In each of these years females

aa

were hired from the eligibility lists. The Respondents

took and passed the written examinations and

completed the physical capabilities test, which are

separate components of the entrance process for

applicants. As a result of the 1980 testing process, Ms.

Shearrow ranked 193, Ms. Schumacher ranked 571 and

Ms. Hornung ranked 319 on the non-minority eligibility

list. Ms. Brunet ranked 464 on the 1984 non-minority

eligibility list.

The respondents alleged in their complaint that

the written test and the physical capabilities test had

an adverse impact upon females and was not content

valid or job related. In their amended complaint, the

respondents alleged violation of 42 U.S.C.§ 1983 and

the Fourteenth Amendment to the Constitution.

The District Court dismissed the claims of the

1980 female applicants for violations of 42

U.S.C.§ 1983 as barred by the the statute of limitations.

= f=

In January 1986 the petitioners filed a Motion for

Partial Summary Judgment in regard to the claims of

the 1980 female applicants for lack of adverse impact

of the examination upon females. This motion was

renewed at trial and the District Court reserved

judgment. In its Opinion and Order of May 13, 1986,

the District Court granted judgment pursuant to Fed.

R. Civ. P. 41(6) for the petitioners on the Title VII

claims of the 1980 female applicants. The District

Court found no intentional discrimination as to the

1984 female applicants pursuant to 42 U.S.C. § 1983.

The Court found that there was adverse impact upon

females in the 1984 physical capabilities test and that

the examination was not content valid, in violation of

42 U.S.C. § 2000e. The Court ordered the petitioners

to prepare a new examination, obtain Court approval of

the content validity of the new exam, administer the

new test to all 1984 female applicants and set-aside

positions for qualified females. A judgment Entry was

prepared by the clerk and filed on May 14, 1986.

~~

On May 30, 1986, the District Court, after review

of remedy proposals submitted by the parties, ordered

the petitioners to prepare a report on the Content

Validity of the previously prepared and administered

1986 Firefighter Entrance Examination, administer the

new test to incumbent firefighters in order to

determine a cut-score, administer the 1986 exam to all

1984 female applicants and, after the Court had

determined whether the new exam is content valid and

job-related, using an approved cut-score, determine

the ratio of the 1986 male/females passing the test.

The petitioners were then to apply this ratio to the

1984 applicants and determine now many females

would have been hired absence discrimination. If more

females would have been hired than actually were, this

number of females would have to be hired before 1986

applicants. Petitioners were additionally ordered to

hire 1986 females in proportion to their passing rate on

the exam, though there had not been any determination

of discrimination. Before petitioners could rank—order

=< =

hire from the examination, they were required to do a

predictive and concurrent validity study. The District

Court failed to discuss petitioners submission in their

remedy proposal that, because of their performances

on the content valid written exam, none of the

non-minority females would have _ been hired,

notwithstanding the discriminatory physical exam. A

Judgment Entry was entered nunc pro tunc to May 30,

1986 on June 26, 1986.

In July 1986 the petitioners requested a

modification of the Injunction to permit the hiring of

firefighters pending the appeals and the validity study.

The District Court permitted the hiring of 72

firefighters from the 1986 examination as long as there

were set aside positions for 1984 and 1986 females.

During the briefing period for the appeals to the

Court of Appeals, the petitioners submitted to the

Court their Report on Content Validity and hired their

first group of 36 firefighters under the Interim hiring

order. The District Court in March 1987, conducted a

two-day evidentiary hearing on the - content

—

validity of the 1986 examination and the cut-score

proposals. On May 21, 1987 the District Court issued

an Opinion and Order finding the 1986 examination as

modified content valid and job-related. The Court also

issued its scoring scheme for the examination. On June

12, 1987, the Court approved the calculation of ratios

for the female hiring and ordered the petitioners to

hire one additional 1984 female and to proportionally

hire male/females in all future firefighter classes.

The petitioners requested a stay from the

proportional hiring requirement of the 1984 female and

the 1986 females pending the appeals which were set

for oral argument on August 4, 1987. Petitioners in

their briefs upon appeal had argued that the District

Court's Opinions and Orders were in conflict with

several decisions of this Court and other Courts of

Appeal on affirmative action remedies, adverse

impact, content validity and scoring. In their requests

for the stay, petitioners argued the requirement to hire

the 1984 and 1986 females would

«ths

substantially harmed the status quo between the

parties and the citizens of Columbus. The District

Court denied the stay and the Court of Appeals denied

the Emergency Motion for a Stay on July 10, 1987. The

petitioners were then required, by denial of the stay, to

hire one 1984 female applicant on July 13, 1987 which

satisfied any remedy obligation under the present

scoring scheme of the 1986 examination.

When counsel for the parties appeared for oral

argument, the Court of Appeals inquired whether the

appeals were moot because the petitioners had

complied with the enumerated provisions of the May

30, 1986 injunction and in light of the June 12, 1987

injunction regarding the 1986 exam. The Court also

indicated the Judgment Entry from the May 13, 1986

Opinion and Order was not a proper judgment entry

from a final decision of the district court. Counsel for

the petitioners renewed their request for a stay of the

proportional hiring in light of its conflict with this

Court's decisions in Local No. 28, Sheet

- 12.

Metal Workers' International Association, et al. v.

EEOC, _U.S._., 92 L.Ed.2d 344 (1986). The Court

indicated, from the bench, it would never issue a stay.

The Court of Appeals issued its Per Curiam opinion on

August 25, 1987 dismissing as moot the appeals. The

petitioners timely filed a petition for rehearing which

was denied by the Court of Appeals on October 19,

1987.

The petitioners, at the oral argument and in their

petition for rehearing, argued that they had not

complied with all the terms of the May 30, 1986

Injunction in that it would take them four or more

years to complete the criterion-related studies. They

argued that there was a Judgment Entry filed on May

14, 1986 which addressed and determined liability as to

all claims in the complaint and was a judgment on the

merits. Additionally, the compliance by the petitioners

with the enumerated provisions of the Injunction was

required by the Court's denial of the Motion for a

Stay. The Petitioners pointed out to the Court of

a:

Appeals that the dismissal as moot could be regarded

as prejudicial to petitioners' right of appeal upon the

liability finding and the substantial issues of law. If

the Court of Appeals was correct that there was no

judgment entry, the appeal was premature not moot.

The petitioners argued that the Court ignored its own

holding in Alexander _v. Aero Lodge No. _ 735,

International Asso., 565 F. 2d 1364, 1370 n.3 (6th Cir.

1977), cert. denied, 436 U.S. 946 (1978), and applied a

technical rather than practical construction to finality

and the relationship between the parties.

a

REASONS FOR GRANTING THE WRIT

I. The dismissal by the Court of Appeals of

Petitioners' appeal from a Title VII liability judgment

and injunction as moot was in error because

petitioners'compliance with the injunction had been

upon protest. This dismissal is in conflict with

decisions of this Court and other Circuits.

The Court of Appeals in its Per Curiam Opinion of

August 25, 1987 held that the District Court had not

rendered a final judgment because there was ongoing

litigation. The Court of Appeals did find, however,

that it had jurisdiction over the appeals from the

injunction issued on May 30, 1986. This injunction had

required petitioners to demonstrate the _ content

validity of their new 1986 exam, establish a cut-point,

administer the exam to the 1984 female applicants, and

determine the ratio for hiring of 1984 and 1986 female

applicants. The petitioners were not able to

rank-order hire until they submit both a predictive and

concurrent criterion-related validity study, in addition

a ee

to its content validity report. The petitioners, in need

of firefighters, submitted to the various steps within

the injunction. After the District Court found the new

exam to be content valid, the petitioners sought a stay

of the proportional hiring requirement of the 1984

female who would satisfy petitioners’ liability under

the injunction and the hiring of future 1986 affirmative

action recruits. Both the District Court and the Court

of Appeals denied the stay, finding no detrimental

harm to the petitioners. The petitioners reluctantly

hired the additional 1984 female pursuant to the

District Court's orders.

The Court of Appeals held in its opinion that the

petitioners compliance with the hiring of the 1984

female completed compliance with the May 30, 1986

Injunction and mooted its jurisdiction.

The petitioners contend that all provisions of the

May 30 Injunction have not been comply with, i.e., the

predictive criterion-related study will take several

years to complete. Primarily however, the petitioners

argue that the compliance with the enumerated

~<

provisions of the Injunction were completed under

protest. If the petitioners had not hired this 1984

female, they would have been in contempt of a court

order or left with the choice of not hiring any

firefighters while awaiting the appellate process.

It is recognized principle that federal courts do

not have jurisdiction over matters which are not in

“case or controversy". It is a general proposition that a

case can become moot where, while pending appeal and

without fault of the parties, an event occurs resolving

the issues between the parties or prevents the court

from providing a remedy. Burke v. Barnes, et al., 479

U.S. _, 93 L.Ed.2d 732 (1987); Crowell, et_al. v. Mader,

et.al., 444 U.S. 505 (1980); Sosna v. Iowa, 419 U.S. 393

(1975). Ordinarily a party does not have to seek a stay

from a judgment during an appeal. Thibaut_v. Ourso,

705 F.2d 118 (Sth Cir. 1983); American Grain Asso. v.

Lee-Vac, Ltd., 630 F.2d 245 (Sth Cir. 1980). The

voluntary performance by a party of the act sought to

m/e

be enforced renders a case moot. Western Addition

Community Organization,et al. v. Alioto, et al., 514

F.2d 542 (9th Cir. 1975). As the Ninth Circuit pointed

out in Alioto, the City of San Francisco did not seek a

stay of the District Court's hiring order pending appeal

and hired the minority applicants. The case at hand is

distinguishable. The City of Columbus sought and was

denied a stay.

There must be an element of voluntary _and

intentional compliance with an order before a court

loses its jurisdiction because of mootness. Otherwise,

the lawful compliance by a party of an order, under

protest, while an appeal is pending would deprive the

party his Constitutional right of appeal. As in

Internationa! Harvester Credit Corp. v. East Coast

Truck, 547 F.2d 888 (Sth Cir. 1977), the petitioners

were not the voluntary. beneficiaries of the

“acceptance of the benefits" doctrine. The Fifth

Circuit found the compliance by International

Harvester with the district court's decree,

~~

after denial of a stay, was done in face of the risk of

contempt. Such compliance was found not to moot the

appeal.

The Court of Appeals for the District of Columbia

in Investment Co1..pany Institute v. Federal Deposit

Insurance Corp., 728 F.2d $18,523 (D.C.Cir. 1984), held

that even if a subsequent injunction mooted the

injunction appealed, it would maintain the appeal "'in

the interest of sound judicial administration,' if ‘a

recurrence or a continuation of what is essentially the

same legal dispute' is predictable. Alton & Southern

Ry. v. International Ass'n of Machinists & Aerospace

Workers, 463 F.2d 872,879 (D.C.Cir. 1972)." (Footnote

omitted). If the Court had maintained jurisdiction and

reviewed the liability judgment and the injunction

regarding the 1984 exam, the 1986 exam may not

before the Court of Appeals

The petitioners respectfully contend that their

involuntary compliance with the court's orders should

not prejudice their rights to an appeal from the 1986

liability judgment and injunction.

Se

Il. The dismissal by the Court of Appeals of

Petitioners' appeal from a Title VII liability judgment

and injunction as moot results in a res judicata effect

upon the issues raised on appeal without review,

depriving the Petitioners of their Constitutional right

of appeal from a District Court decision which is in

conflict with decisions of this Court and other Circuits.

The Supreme Court in United States _v.

Munsingwear, 340 U.S. 36 (1950), held that where a

case becomes moot while an appeal is pending from the

district court, the appropriate practice is to reverse or

vacate the judgment below and remand for dismissal by

the trial court. Such a procedure would prevent the

effect of res judicata upon the action. In Munsingwear,

the United States did not did not move for vacation of

the judgment and the Court held it had acquiesced in

the dismissal. See, Burke v. Barnes, 479 U.S._, 93

L.Ed.2d 732,737 (1987).

However, this Court in Crowell v. Mader, 444 U.S.

505 (1980), held that the previous order directing the

judgment of the district court be vacated, because the

matter had become moot during the pendency of the

appeal, was improper. The Court held not the entire

ow 20

» as

— aes ae 7

Poet neo 4 :

_ sa 7 - =~

on

=>

=

case had become moot “but only the issues raised on

appeal." Id. The parties could litigate other issues in

the case. In this action, the parties are continuing to

litigate the same issues, regarding test construction,

content validity and rank-order hiring in respondents'

appeal from the district court's approval of the 1986

exam, as were at issue in petitioners' appeal in this

matter. The’ district court's supervision and

administration regarding the 1986 examination stems

from the liability finding of the underlying Title VII

cause of action. Thus, the petitioners could not,

pursuant to the holding in Crowell, move the Court of

Appeal to remand and direct the district court to

vacate the judgment.

Additionally, in this matter the petitioners, in

their petition for rehearing, raised the issue of the res

judicata effect of the dismissal as moot upon the

liability findings of the district court and the provisions

of the injunction upon which compliance

> ee

had not been completed. The Court of Appeals issued a

summary dismissal of the petition. Thus, the

petitioners sought relief from the res judicata effects

- of the dismissal as moot and did not acquiesce as did

the United States in Munsingwear.

The Court of Appeals erred when it held that the

petitioners had complied with all parts of the 1986

injunction but for the proportional hiring which was

renewed in the 1987 injunction. The petitioners, at

oral argument and in their petition for rehearing,

indicated to the Court of Appeals that the petitioners

had not complied with the criterion-related validity

studies because these would take several years. The

1987 injunction only continues the proportional hiring

requirements of the preceding injunction and directs

that the petitioners may hire “by whatever method it

desires so long as it is not inconsistent with any prior

Orders of this Court." Opinion and Order of May 21,

1987, p.44 (Appendix 100a, infra.). Thus, petitioners

have not been relieved of their obligation to perform

« $3 ~

studies which are inconsistent with professional

standards and decisions from other Circuits.

The petitioners raised upon appeal substantive

issues regarding the district court's judgment in the

liability finding and injunction which were in conflict

with decisions of the Supreme Court, with other

Circuits and with decisions of the Sixth Circuit. The

res judicata effect of the Court of Appeals' dismissal

as moot may prevent review of these same findings by

the district court in its holding regarding the 1986

examination because it may be the “law of the case."

The effect of the Court of Appeals' dismissal as moot

is the denial of the petitioners' right to appellate

review intended by Congress and the Constitution.

The petitioners are additionally being prejudiced

because the Court of Appeals dismissed the appeals as |

moot when the appropriate action of the Court may

have been to vacate the judgments and direct the

district court to dismiss the cause. The petitioners

raised the issue of res judicata in their petition but the

.

Court did not address it. The petitioners should not be

deprived of their right of appellate review through

actions of the Court of Appeals.

Ill. The Court of Appeals' determination on the

finality of the District Court decision was in conflict

with decisions of this Court and other Circuits.

The Court of Appeals found that since the district

court had not determined the "legality" of the new

1986 entrance examination at the time of the appeals,

litigation on the merits had not concluded and there

was no final judgment. This finding of the Court of

Appeals is in error. This Court in Catlin v. United

States, 324 U.S. 229, 233 (1945), held that a final

decision is one which "ends the litigation on the merits

and leaves nothing for the court to do but execute the

judgment." The district court, in its May 13, 1986

Opinion and Order, found liability upon the petitioners

for the 1984 physical capabilities test under Title VII,

no liability under Title VII for the 1980 entrance

—"

examination or the 1984 written examination and no

liability under 42 U.S.C.§ 1983 for intentional

discrimination. The following day the clerk entered

the Judgment Entry.

The rights between the parties were conclusively

settled. The litigation on the merits between the

parties was terminated and the district court had

nothing to do but administer and enforce the execution

of the liability determination. Heike v. United States,

217 U.S. 423 (1913).

The principles of finality have not been strictly

construed by this Court. Pennsylvania v. Ritchie,480

U.S. _, 94 L.Ed.2d 40 (1987); Cox Broadcasting Corp. v.

Cohn, 420 U.S. 469 (1975). This Court has held that

because the question whether a ruling is final is

frequently a close question, the reouirements of

finality should be given a “practical rather than a

technical construction." Cohen v. Beneficai Industrial

Loan Corp., 337 U.S. 541, 546 (1949). While the

concern to prevent piecemeal review is an appropriate

=.

concern of the courts, there must be a balancing with

the danger of denying justice by delay of an appeal.

Dickinson v. Petroleum Conversion Corp.,338 U.S.

507,511 (1950); Gillespie v. United States Steel Corp.,

379 U.S. 148,153 (1964).

The Sixth Circuit has held that a:

final judgment is one which disposes of the whole

subject, gives all the relief that was contemplated,

provides with reasonable completeness, for giving

effect to the judgment and leaves nothing to be

done in the cause save superintend, ministerially,

the executive of the decree.

City of Louisa v. Levi, 140 F.2d 512, 514 (6th Cir.

1944).

The District Court, as part of the remedy for the

liability finding, required the petitioners to

demonstrate the content validity of their new

examination. There had not been a finding of adverse

impact in the results of the 1986 exam which would

have established a prima facie case under Title VII.

Rather, the court was administering its remedy from

the liability finding in regard to the 1984 exam. There

have not been any new findings of liability in this

- 26 -

|

matter after the May 13, 1986 Opinion and Order. The

litigation on liability has ended. The district court is

currently executing its judgment. Catlin v. United

States, supra.

The Court of Appeals during oral argument

indicated that while there may have been "a piece of

paper which said Judgment Entry, it is not a judgment

entry." The Judgment Entry prepared by the Clerk of

the Court and filed on May 14, 1986 follows the

specifications of the complaint and enters judgment for

the respective parties under 42 U.S.C.§ 2000e or 42

U.S.C.§ 1983. It appears that the Court of Appeals is

rendering a technical rather than _ practical

construction to the finality rule and Fed. R. Civ. P.58.

If the Court of Appeals is correct that there has

been no “final” judgment in this matter, the appeal on

liability is, at least, premature not moot. The

dismissal of the appeals as moot then is error and

prejudical to the rights of the petitioners.

~ 27 «=

CONCLUSION

The petitioners respectfully request the Supreme

Court that this petition for certiorari be granted. The

petitioners believe the Questions presented raise

substantial issues regarding Constitutional rights of

appellate review, as well as conflict between the Court

of Appeals and prior decisions of the Supreme Court

and other Circuits. The petitioners request the Court

to exercise its supervisory authority over the Court of

Appeals and accept review of the judgment of the

Court of Appeals for the Sixth Circuit.

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January 15, 1988

Respectfully submitted,

EILEEN A. GROVES

Assistant City Attorney

Columbus, Ohio

90 West Broad Street

Columbus, Ohio 43215

(614) 222-7385

Counsel of Record

RONALD J. O'BRIEN

City Attorney

Columbus, Ohio

Of Counsel

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