Opposition Brief — Littles v. Jefferson Smurfit Corp.

Supreme Court of the United States

October Term, 1995

HERBERT LITTLES,

Petitioner,

JEFFERSON SMURFIT CORPORATION (U.S.),

Respondent.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

¢

RESPONDENT’S BRIEF IN OPPOSITION

¢

Frank McRIicHtT

Counsel of Record

McRIGuHT, Jackson, DorMaAN,

Myrick & Moors, L.L.C.

Post Office Box 2846

Mobile, Alabama 36652

334-432-3334

Counsel for Respondent

BEST AVAILABLE COPY

QUESTION PRESENTED

Did the United States Court of Appeals for the Elev-

enth Circuit correctly affirm the verdict of a racially div-

erse jury that Respondent Jefferson Smurfit Corporation

(U.S.) did not intentionally discriminate against Peti-

tioner Herbert Littles in violation of 42 U.S.C. §§ 1981 or

1982 when it declined to enter into a supplier contract

with Littles?

ii

PARTIES

The parties are:

Petitioner: Herbert Littles

Respondent: Jefferson Smurfit Corporation (U.S.) (here-

inafter referred to as “JSC”), a Delaware corporation.'

1 Rule 29.1 Listing: Subsequent to the commencement of

this action, the named defendant, Container Corporation of

America, was merged into JSC. JSC is a wholly-owned subsid-

iary of JSCE, Inc., a Delaware corporation and wholly-owned

subsidiary of Jefferson Smurfit Corporation, a Delaware corpo-

ration that is publicly traded. JSC’s subsidiaries, other than

wholly-owned subsidiaries, are Smurfit Newsprint Corpora-

tion, a Delaware corporation; Groveton Paper Board, Inc., a

New Hampshire corporation; and Dalton Paper Products, Inc.,

a Georgia corporat*on.

iii

TABLE OF CONTENTS

Page

oS by ets Lr ae a i

RE eR oe es i sie... ii

pee Be: . a re es iii

pe ey. 8 1s). vi

RPI EU oo 52g bass oes occ k ck clvcvcccc nnn 1

STATEMENT OF THE CASB...i....5.0.0000.000.. 2

I. JSC USES A DEALERSHIP SYSTEM TO

ACQUIRE PULPWOOD AND DOES NOT

CONTRACT DIRECTLY WITH WOOD PRO-

SPAM MU BREED voc cece ccccscccccsess 2

A. How the Dealership System Operates... 2

B. JSC’s Business Reasons for Relying on the

SIS os vs +5 Sucesuawnes sass 4

C. JSC Makes Supplier Contracts Only with

Firms Already in Business as Dealers.... 5

D. JSC’s Policy of Limiting Contracts to Sup-

pliers Already in Business as Dealers Has

an Equal Impact on Blacks and Whites.. 6

E. Littles Is Not a Wood Dealer............ 7

JSC’s “Dealers Only” Policy Does Not Pre-

vent Littles from Going into Business as a

a AEE Se 8

Il. JSC HAS NOT CONTRACTED WITH ANY

BUSINESS THAT IS SIMILARLY SITUATED

TO LEPELES’ GUSINESS foo. eek. eileen. 9

SUMMARY OF ARGUMENT....................00. 12

RR A na tt lr a Sn a 14

iv

TABLE OF CONTENTS - Continued

Page

I. THE DECISIONS BELOW WERE CONSIS-

TENT WITH AND COMPELLED BY APPLI-

CADE GAO das oss cduihvnsidbbenscasseeewaues 14

A. Littles Failed Even to Establish a Prima Facie

Case of Intentional Discrimination......... 15

B. JSC’s Standards for the Selection of Its

Wood Dealers Are Legitimate and Non-

Aacrinninatoey «5555 os shies a 00k wees 2 16

C. JSC’s Reasons For Not Contracting with

Littles Are Not Pretexts For Discrimina-

RPE EVE ET CREPE ES 2 OPTS TP ee Tere 16

Il. THE ELEVENTH CIRCUIT’S DECISION

RAISES NO ISSUE THAT WARRANTS

REVIEW OY. Fear. CAI UR oasis cg CUR: sa peces 17

A. Littles Did Not Proffer Any Evidence of

Historical Discrimination by JSC in the

Making of Supplier Contracts ........... 17

B. Littles’ New Argument That JSC Relies on

a “Grandfather Clause” Is Not Supported

by the Evidence Presented or Proffered at

i eR ee Fe Ey eee Ns Oe 19

C. The Settlement of Employment Discrimi-

nation Lawsuits Against Separate Corpo-

rate Divisions of JSC Are Irrelevant to

Littles’ Claim of Contractual Discrimina-

tion by JSC’s Woodlands Division ...... . 20

D. The District Court’s Rulings With Respect

to Littles’ “Evidence” of Discrimination in

the Pulp and Paper Industry as a Whole

Were Within the Court’s Discretion...... 23

a

Vv

TABLE OF CONTENTS - Continued

Page

E. This Case Presents No Conflict with Deci-

sions of this Court or of Other Circuits.. 24

F. The Fourteenth and Fifteenth Amendment

Cases Cited by Littles Are Irrelevant to this

RNIN ee tS eek cece cte ne ae 27

CATR 6h ons horns dae ah 28

vi

TABLE OF AUTHORITIES

Page

Cases:

Asbury v. Brougham, 866 F.2d 1276 (10th Cir. 1989) .... 15

Bazemore v. Friday, 478 U.S. 385 (1986) ... 22, 25, 26, 27

Beavers v. American Cast Iron Pipe Co., 975 F.2d 792

tht Be @ Serer ret Ty re 26

Brown v. American Honda Motor Co., 939 F.2d

946 (11th Cir. 1991), cert. denied, 502 U.S.

LOBD CAGE coc ccccccsvescnecesesdstasds 15, 16, 17, 25

Cannon v. Teamsters & Chauffeurs Union, 667 F.2d

173 (7a Cie BOGE). wc caiccccecucccsctsenseheteedis 17

City of Richmond v. Croson, 488 U.S. 469 (1989) ...... 28

Crawford v. Western Electric Co., 745 F.2d 1373 (11th

Che. 2GBE) 0.00.0 cnc ccgdvecevesnyesesésuseanees Gen ths 15

Delaware State College v. Ricks, 449 U.S. 250 (1980) .... 22

Forsberg v. Pacific Northwest Bell Telephone Co., 840

F.2d 1409 (9th Cir. 1988), cert. denied, 502 U.S.

ROBB (RGR ic ion cnckcdicd daca caxwaeuksaaannkaus 25

General Building Contractors Assn. v. Pennsylvania,

458 US. TIS CEPR wis nas 4805 scnscnecsenacetans 15, 24

Giles v. Ireland, 742 F.2d 1366 (11th Cir. 1984) ....... 17

Griggs v. Duke Power Co., 401 U.S. 424 (1971)........ 25

Guinn v. United States, 238 U.S. 347 (1915) .......... 20

Harpring v. Continental Oil Co., 628 F.2d 406 (5th

Cir. 1980), cert. denied, 454 U.S. 819 (1981) ........ 22

Harrison v. Container Corp. of America, Civ. No. 90-

TOIGN (ALD. Ale. 9996)... ccccccsnccensescsece 20, 21

Hazelwood School District v. United States, 433 U.S.

SFO CROCE occ 0 cevtececheceehsctessereie 22, 28

Vii

TABLE OF AUTHORITIES - Continued

Page

Houston v. Benttree, Ltd., 637 F.2d 739 (10th Cir.

1980), cert. denied, 451 U.S. 938 (1981)............. 15

Mayor v. Educational Equality League, 415 U.S. 605

GUNUE Fa ude 8 shaded kacVcerseverskakiarcaséccacve 27

McDonnell-Douglas Corp. v. Green, 411 U.S. 792

RUPEES C4CA4 6405 Cbd 054s 0.09646 05 sks eC ave sede 15, 16, 25

Meyers v. Ford Motor Co., 659 F.2d 91 (8th Cir.

PEER eet e ees Min atudhs kate eu vecsneseevesees 15, 20

Mitchell v. Jefferson County Board of Education, 936

See WUT WIE MS UES Wi oe can wekcdiedacsccdese 26

Myers v. Anderson, 238 U.S. 368 (1915) .............. 20

Patterson v. McLean Credit Union, 491 U.S. 164

Ss 0k at BO AAS wi OS oe kas Gnd dad aidios alee 15, 16

Peightal v. Metropolitan Dade County, 26 F.3d 1545

eo a AS te ar eee ery ee Pee 28

Randle v. LaSalle Telecommunications, Inc., 876 F.2d

ee EC A wie pd RAGES DEM euws ch betes cen 15

Suggs v. Container Corp. of America, Civ. No.

Taree Fe. FIFE) cv. cccscesccccce: 20, 21, 22

Teamsters v. United States, 431 U.S. 324 (1977)........ 20

Texas Dept. of Community Affairs v. Burdine, 450

Skt | aS oe ne eee eee 16

Webb v. Indiana National Bank, 931 F.2d 434 (7th

Go OSS 0S CANE Ee o HENS CURE awe wleRdcecceces. 26

Zaklama v. Mount Sinai Medical Center, 842 F.2d 291

(11th Cir. 1988), cert. denied, 502 U.S. 1058 (1992) .... 16

viii

TABLE OF AUTHORITIES —- Continued

Page

STATUTES AND RULES

Rik tae e | Pere rer er ee ey passim

Oe Sides TE Rv avkcs co <a cchuswcvnas 1, 13, 14, 15, 24, 27

RO rr, ee iy eee 21

PO I I kab A der ¥ id bon 3052004 5e de ekenbee 21

FOR, Fe. Tie: MP ts os 9.60 aban 2 ects ant.gabing sts qadeans 21

RESPONDENT'S BRIEF IN OPPOSITION

OPINIONS BELOW

A racially diverse jury found, after a week of trial,

that JSC’s Brewton Woodlands Division did not inten-

tionally discriminate against Littles on the basis of race

when JSC declined to enter into a supplier contract with

him. [App. at 42a-43a] The jury reached this verdict after

thorough instruction by the trial court regarding the law

applicable under 42 U.S.C. §§ 1981 and 1982.2 The United

States District Court for the Southern District of Alabama

denied Littles’ post-verdict motions and entered judg-

ment for JSC. [Id. at 44a-47a]

On appeal, the United States Court of Appeals for the

Eleventh Circuit Court held per curiam that Littles’ appeal

of the denial of his motion for judgment as a matter of

law was frivolous, “given the evidentiary record in this

case.” [Id. at 2a] The Eleventh Circuit also rejected Littles’

arguments that the district court had abused its discretion

in excluding evidence proffered by Littles, and affirmed

the district court’s denial of Littles’ motion for a new

trial. [Id.]

2 Although Littles states that the district court rejected

instructions proffered by Littles that would have permitted the

jury to consider Littles’ claims of “perpetuation of past discrimi-

nation,” Littles does not identify what instructions he proffered

that would have supposedly accomplished this purpose. [Peti-

tion at 8] Furthermore, Littles made no objection at trial with

respect to any such purported jury instruction, and thus did not

preserve any such alleged issue for appeal.

STATEMENT OF THE CASE

I. JSC USES A DEALERSHIP SYSTEM TO ACQUIRE

PULPWOOD AND DOES NOT CONTRACT

DIRECTLY WITH WOOD PRODUCERS LIKE LIT-

TLES.

A. How the Dealership System Operates

JSC’s Brewton Woodlands Division must consistently

supply JSC’s Brewton Mill, a separate division of JSC,

with approximately 2,000 cords (300 to 400 loads) of

pulpwood per day, as necessary for the Mill to produce

paper products. [R.6. 447-51, 530]

In order to meet its pulpwood needs, JSC Woodlands

contracts with suppliers or “dealers,” who function as

wholesalers, for wood that the dealer sells. The dealer, in

turn, contracts with “producers” who, like retailers,

either sell wood they have purchased to the dealer or

who cut and haul timber the dealer has purchased. Most

wood dealers have subcontracts with a number of pro-

ducer crews that usually work for a single dealer. A

typical producer, like Littles, operates with a single four-

to nine-man crew. [R.5. 240-41, 262; R.6. 663, 713, 731, 737,

836, 843-44]

Contrary to Littles’ characterization, “producers” do

not become “dealers” simply by virtue of their designa-

tion as such by a paper mill. [Petition at 3, 6] Instead,

dealers and producers perform two fundamentally differ-

ent functions in the supply chain. Producers’ essential

function is cutting down trees and delivering wood as

subcontractors to dealers. Dealers act as “middlemen” for

the goods and services of others, and their essential func-

tion is brokering the purchase and sale of the wood that

is harvested by producers. In addition, dealers’ activities

include the building of logging roads, bridges, and

culverts; financing equipment and timber purchases for

producers; acquiring and marketing timber; coordinating

and supervising the logging done by producers under

subcontract; coordinating delivery to buyers; and main-

taining inventory either as standing timber that the

dealer has already purchased and is ready to be cut or

timber that has been cut and is stored in woodyards that

are owned or leased by the dealer. [R.6. 458-60, 476-77,

495-98, 818-20]

Furthermore, the business character of the operations

of dealers is fundamentally different from that of pro-

ducers. Dealers are independent, competitive businesses

that contract with several different paper companies at

the same time. A dealer’s ability to attract a number of

customers insures that the dealer will have other outlets

for its wood if, for example, one of the mills with which

the dealer contracts closes or temporarily limits its wood

consumption during repairs or maintenance. [R.6. 774]

The operation of a dealership requires considerably

more capital than running a production crew. Hundreds

of thousands of dollars can be put at risk in a single

transaction, and no return can be expected on such an

investment for months or years. [R.6. 460, 477, 694, 767]

In contrast, the producer gets paid as the producer’s

work is done, carries no “float,” and takes no market risk

if, as is usual, the producer is paid a predetermined price

for each cord of wood he produces. [R.6. 477-78] Dealers

generally pay their producers at the end of each week, or

as the producer delivers wood to buyers. [R.6. 643, 769]

B. JSC’s Business Reasons for Relying on the

Dealership System.

The jury in this case heard testimony from JSC’s

procurement manager, eight dealers, an expert in the

timber procurement area, and a successful producer

regarding the advantages of the dealership system for

supplying a pulp and paper mill reliably and economi-

cally. Their testimony established that the dealership sys-

tem is responsive to market conditions and avoids

centralization of administrative and operational respon-

sibilities, burdens, and costs.

Their testimony also established that, if JSC contrac-

ted directly with the 25C roundwood producers that cur-

rently haul pulpwood to JSC, rather than contracting with

its current 35 to 40 roundwood dealers, JSC would have

to hire (and pay) ten times the number of its current

employees to perform the forestry, road-building,

accounting, payroll, clerical, and administrative opera-

tions currently performed by dealers more efficiently and

effectively than a paper company can with its own

employees. [R.6. 431, 471-72, 580-82, 700-01, 723-24,

3 Littles’ allegation that he must “pay” a commission to

dealers who sell the wood he hauls to JSC is false. [Petition at 5

& n.4] In fact, dealers make their profits by paying producers

less than the dealer receives from the wood buyer, similar to

how profits are made any wholesale-retail arrangement, and

producers do not “pay” money to dealers for the wood they

haul under contract with the dealer. [R.5. 200-01]

765-769] Instead of spreading the cost of such operations

among a number of dealers and the various paper com-

panies to which those dealers sell wood, JSC would have

to pay for all such operations for all producers hauling

wood to JSC. JSC would have no more “middlemen” to

assume responsibility for a steady supply of wood to the

Mill from producers with varying degrees of reliability.

JSC, rather than dealers, would have to maintain the

numerous woodyards necessary to inventory wood for

use when the flow of wood direct from the woods is

inadequate due to bad weather or equipment failure. JSC,

rather than dealers, would have to insure compliance by

each such small producer with applicable Environmental

Protection Agency, Alabama Department of Environmen-

tal Management, and other legal, insurance, and forestry

standards, and demands for timely payment to producers

and landowners. JSC, rather than dealers, would have to

handle complaints from and defend lawsuits by land-

owners and others regarding the logging practices and

operations of small producers. [R.6. 467-68, 471, 495-98,

717, 723-24, 767-70, 774-75, 839-40]

C. JSC Makes Supplier Contracts Only with Firms

Already in Business as Dealers.

JSC does not make wood supplier contracts with

businesses that are not already in business as dealers, nor

does it enter into supplier contracts with persons who,

like Littles, operate as producers. [R.5. 442; R.6. 463-64]

Neither does JSC contract with any business that moves

as little roundwood volume as Littles does. [R.6. 487-88]

JSC’s business judgment to contract only with dealers

has proven through the years to be well-founded. Many

companies that have tried to operate without a dealership

system have abandoned such attempts, have been forced

to pay more for their wood supply, or have found it

necessary to supplement their wood supply with wood

purchased from wood dealers [R.5. 228-30; R.6. 724,

743-44, 769-70, 836-37].

D. JSC’s Policy of Limiting Contracts to Suppliers

Already in Business as Dealers Has an Equal

Impact on Blacks and Whites.

In recent years, higher equipment and insurance

costs, as well as the need for greater efficiency, have

caused JSC to rely increasingly on dealers with larger

operations and capacities. [R.5. 244-46; R.6. 475-76,

479-80, 775-76, 813, 815-17] JSC was able to reduce its

own overhead costs by contracting more with larger

dealers and, thus, reducing the number of dealers with

which JSC did business. [R.6. 479-80]

Since the early 1980’s, JSC’s Brewton Woodlands

Division has refused to enter into supplier contracts with

at least 35 producers (only two of whom were black).

[R.6. 483-87] Most of the producers who were refused

contracts run larger operations than Littles does. [R.6.

487] In addition, the 23 white-owned companies already

in business as dealers, with which JSC also refused to

contract during the same time period, includes several

companies that move over 2,000 cords of roundwood

each week. [R.6. 485]

ee

During that same time period, as a result of its con-

solidation of its supplier contracts with larger dealers,

JSC terminated the contracts of approximately 45 round-

wood dealers, all of which were white-owned businesses

and were larger than Littles’ business. [R.6. 482-83] As a

result of JSC’s policy of limiting its supplier contracts to

larger dealers, the number of JSC’s roundwood suppliers

was reduced from 65 in 1984, to less than 40 by the time

of trial. [R.6. 478-79]

When JSC was dealing directly with a larger number

of businesses, JSC purchased wood chips from several

chipmills owned by black persons. [R.6. 562-63] There

are, however, no black persons currently in business as

dealers in the Brewton area. [R.5. 189] At the time of trial,

there were only two or three black producers in the

Brewton area. [R.5. 227, 247]

E. Littles Is Not a Wood Dealer.

Littles is a producer, not a dealer. [R.5. 121, 230-31;

R.6. 745-46] Littles asserted at trial, as he does in his

Petition, that the dealer’s role is only “nominal” with

respect to the procurement and sale of the wood he

produces, because Littles purchases his own timber

resources rather than having a dealer perform the pro-

curement function for him. [Petition at 5] The over-

whelming evidence was to the contrary, and established

the variety of other functions performed by the dealer, as

well as the business economies inherent in JSC’s dealer-

ship system, as described above. In any event, there was

no evidence that JSC has made or would make an excep-

tion to its “dealers only” policy for a white producer,

even if that producer bought 100% of his pulpwood.

F. JSC’s “Dealers Only” Policy Does Not Prevent

Littles from Going into Business as a Dealer.

Littles’ assertion that JSC “froze” dealer contracts in

1979 and now contracts only with businesses formed

prior to that time is false. [Petition at 5-6] Instead, the

evidence at trial established that JSC made thirteen new

roundwood supplier contracts during the relevant statute

of limitations period, some of which did not even exist

prior to 1979. For example, the jury in this case heard |

testimony from the owner of Mobile Forest Products, a

company that was established in 1984. The owners of |

Mobile Forest Products mortgaged everything they had

in addition to raising $175,000 from an investor, and

currently have $2.4 million invested in the company. [R.6.

811, 829-30]

Similarly, Littles’ assertion that dealerships are usu-

ally acquired through inheritance within white families is

false. [Petition at 6 & n.8] In fact, the jury in this case

heard testimony regarding a variety of ways in which

dealerships may be acquired or formed, including by

expansion of logging operations like Littles’. [R.6. 546-48,

694-95, 721-22, 834-35] For example, Carter Pulpwood

was purchased in 1968 for $20,000. [R.6. 674-75] Bracewell

& Grant was purchased in 1964 for $25,000, with a subse-

quent purchase of woodyards for $100,000 in 1967. [R.6.

720-21] Branco Wood Products was purchased for about

$100,000 in 1975. [R.6. 849] Littles’ failure to establish,

————————

buy, or expand into a dealer business is not JSC’s respon-

sibility. The simple fact is that, unlike the dealers who

testified at trial, Littles has never risked the capital neces-

sary to buy or start a dealership. [R.5. 250]

II. JSC HAS NOT CONTRACTED WITH ANY BUSI-

NESS THAT IS SIMILARLY SITUATED TO LIT-

TLES’ BUSINESS.

Throughout this litigation and at trial, Littles identi-

fied Claude Alford as the best “comparator” in his efforts

to prove that JSC made pulpwood purchase contracts

with less qualified suppliers than himself. [R.1. #22 at 2,

#40 at 2, #46 at 3-4; R.2. #69 at 11-12; R.5. 223-24, 307,

315-16] The undisputed evidence established, however,

that during the period when he was still in business as a

producer, Alford tried repeatedly and unsuccessfully to

obtain a supplier contract from JSC. Like Littles, Alford

was repeatedly refused a supplier contract. Then, in 1986,

Alford bought Tri-State Timber Co., a dealership that

already had a supplier contract with JSC, investing over

$130,000 from profits from his logging business to finance

the purchase. [R.6. 505-06, 508, 634, 636]

Tri-State’s supplier contract with JSC was already at

least two years old when Alford bought the company in

1986. [R.6. 501-04] At the time of Alford’s purchase, Tri-

State had an established annual wood flow of about $2.5

million worth of timber [R.6. 503], skilled foresters on the

payroll [R.6. 638], supplier contracts with several pulp

and paper companies [R.6. 62930], three longwood crews,

several shortwood crews [R.6. 639], and two woodyards

[R.5. 394-95].

10

Even before Alford’s acquisition of Tri-State in 1986,

Alford’s operations and capacities as a producer were

demonstrably superior to those of Littles. Alford’s aver-

age weekly wood volume during the five years prior to

his acquisition of Tri-State in 1989 was about three times

what Littles was producing at that time. [R.6. 506-07; DX

21 & 22] Littles’ gross receipts in 1986, when Alford

acquired Tri-State, were less than half of Alford’s. [R.5.

323-24; DX 31 & 32] Littles’ equipment is old and in

frequent need of repair, and was worth less than one

tenth (1/10) of the value of Alford’s equipment prior to

his acquisition of Tri-State. [R.5. 294-95; DX 21 & 27]

Furthermore, Alford’s acquisition of Tri-State dramati-

cally increased his production capacity. [R.6. 511-12]

Littles has only one logging crew of five to six

employees [R.5. 240-41, 262], produces longwood, rather

than shortwood [R.6. 517], and produces mostly pine,

rather than hardwood [R.6. 498-99, 517]. His production

averages 150 cords per week [R.5. 261-62, DX 15], about

90 cords of which is pulpwood [R.6. 516, DX 15]. Littles

only operates locally in the Brewton area [R.5. 296], and

has no business relationships with landowners in other

areas of the state where hardwood primarily grows. [R.5.

300-01] Practical considerations of landowner relation-

ships and transportation time and costs limit a producer’s

ability to produce outside a 30- to 50-mile radius of his

base of operations. [R.5. 166, 295-01; R.6. 543-44, 668, 682,

845-46] /

Furthermore, unlike typical dealers, Littles does not

employ any professional foresters to take responsibility

for pricing and purchasing wood on a full-time basis.

11

[R.5. 268, 402; R.6. 476] Littles’ testimony at trial demon-

strated that he is unfamiliar with the skills and tools used

in “cruising timber” to estimate its value and submit

competitive bids. [R.5. 268-71; R.6. 463] Littles is also

unfamiliar with the Alabama Forestry Association’s “Best

Management Practices,” which timber professionals must

follow in Alabama for conservation and ecological rea-

sons. [R.5. 276; R.6. 459, 474-75] Littles’ liability insur-

ance, without which he cannot operate as a producer, has

been repeatedly canceled for non-payment of premiums,

including on one occasion only a month before trial. [R.5.

335-40]

The jury in this case heard testimony from eight

dealers with which to contrast Littles’ qualifications. For

example, Bracewell & Grant has 35 office employees and

three foresters on its payroll. Its volume is from 1,500 to

1,900 cords per week. [R.6. 713-16] Southern Timber pro-

duces 2,000 cords per week using eight crews. [R.6. 738]

Mobile Forest Products produces 6,000 cords per week

using ten crews. [R.6. 811-12] Branco Wood Products pro-

duces 800 cords per week and maintains six months’

timber inventory using three longwood crews and six

shortwood crews. [R.6. 849-51]

The evidence established that all of the thirteen sup-

plier contracts made by JSC during the statute of limita-

tions period from October 1989 until the date of trial were

with established dealers (rather than producers like Lit-

tles), which had qualifications and capabilities neither

possessed nor even claimed by Littles. Each of those

thirteen dealers had demonstrated ability to buy timber

outside the Brewton area where there is a higher concen-

tration of hardwood, and to deliver short hardwood by

12

rail or long hardwood to JSC’s outlying woodyards for

slashing. [R.6. 454-55. 488-99] All maintained timber

inventory in their own woodyards. [R.6. 497-98] Each of

these thirteen dealers has a total pulpwood volume much

greater than Littles’. [R.6. 488-97, 591-97; DX 17-20 & 31]

Littles’ volume is also much lower than the volume

of many of the suppliers with which JSC has refused to

contract. [R.6. 487] For example, the owner of Conecuh

Timber Co. testified that he has a volume of 4,000 cords

per week using ten crews, and that he has been turned

down repeatedly for a JSC supplier contract. [R.6. 834-39]

As noted earlier, Littles wants to produce roundwood

in the Brewton area. JSC has not made any contracts for

the delivery of truckwood direct to the mill in Brewton,

as Littles seeks to do, during any period relevant to this

lawsuit. [R.6. 544] Nor has JSC made a contract for the

delivery of primarily pine pulpwood, the species that

Littles primarily produces because of his location. [R.6.

517, 545] None of the thirteen dealers that JSC added

during the several years prior to trial is based within a

60-mile radius of Brewton, and JSC did not even consider

any new dealers in the Brewton area. [R.6. 488, 546]

o

SUMMARY OF ARGUMENT

Littles’ Petition for Certiorari is based on premises

that falsely portray the facts and law at issue in this case.

Specifically, Littles’ characterization of JSC as a company

that “froze” its contracts prior to 1979, intentionally

excluded blacks from such contracts prior to 1979, and

now only contracts with dealerships and the white heirs

13

of dealerships with which it contracted prior to 1979, is

unrecognizable from the record. In fact, the evidence at

trial established that JSC made new supplier contracts

during the relevant time period with thirteen established

dealerships. Each such dealership had capabilities that

Littles does not have and does not even argue that he has.

The evidence at trial also established that Littles has

never risked the capital necessary to buy, start, or expand

into the type of large, competitive dealership company

with which JSC exclusively contracts.

Furthermore, Littles did not proffer any evidence

whatsoever that would have been probative of “past

intentional discrimination” by any corporate division of

JSC in the making of wood supplier contracts or in any

other respect. On the contrary, the uncontroverted evi-

dence at trial affirmatively demonstrated that JSC’s

Brewton Woodlands Division contracted directly with

black-owned businesses for the purchase of wood prod-

ucts prior to implementation of its policy of reducing the

total number of its supplier contracts in the mid-1980's.

Accordingly, Littles’ challenge to the district court’s hold-

ing that claims of “perpetuation of past discrimination”

are not actionable under 42 U.S.C. §§ 1981 and 1982 is not

only legally unfounded, it also raises issues that are not

even presented by this case.

In addition, the “evidence” of “past discrimination”

excluded by the district court consisted of Littles’ proffer

of (1) testimony alleging past discrimination by the

Southern pulp and paper industry, in the form of an

affidavit which did not even mention JSC, by a historian

with no familiarity with JSC’s contracting practices; (2)

testimony by a black producer that a paper mill unrelated

14

to JSC had refused him a supplier contract; and (3) testi-

mony regarding two dissimilar lawsuits brought by Lit-

tles’ attorney against a separate division of JSC, both of

which were settled with no admission of discrimination.

The district court’s exclusion of this “evidence” was

properly based on considerations of relevance, prejudice,

undue delay, waste of time, and the potential for jury

confusion.

Finally, the law applied by the district court and the

Eleventh Circuit in this case does not present any conflict

with the decisions of this Court or of other federal cir-

cuits, or any question of federal law that has not been

settled by this Court. Instead, Littles’ arguments in this

respect are based on comparisons of false characteriza-

tions of the holdings below with cases addressing ques-

tions that are not at issue in this appeal, and on citations

to voting rights and school desegregation cases decided

under Constitutional standards that are not applicable to

this case under 42 U.S.C. §§ 1981 and 1982.

¢

ARGUMENT

I. THE DECISIONS BELOW WERE CONSISTENT

WITH AND COMPELLED BY APPLICABLE LAW.

In Section I of his Argument, Littles cites various

historical and statistical sources regarding the importance

of the timber industry to the Southern economy. [Petition

at 9-15] Based on these citations Littles argues that the

timber industry is “significant,” but does not (and can-

not) identify any legal issue raised by this case that is

15

“significant,” as appropriate to warrant review by this

Court.

Indeed, Littles’ Petition does not even address the

law that is applicable to this case under 42 U.S.C. §§ 1981

and 1982, as set out in McDonnell-Douglas Corp. v. Green,

411 U.S. 792, 802 (1973). See Patterson v. McLean Credit

Union, 491 U.S. 164, 186 (1989); Brown v. American Honda

Motor Co., 939 F.2d 946, 949 (11th Cir. 1991), cert. denied,

502 U.S. 1058 (1992); Asbury v. Brougham, 866 F.2d 1276,

1279 (10th Cir. 1989); Crawford v. Western Electric Co., 745

F.2d 1373, 1376 (11th Cir. 1984); accord Randle v. LaSalle

Telecommunications, Inc., 876 F.2d 563 (7th Cir. 1989);

Meyers v. Ford Motor Co., 659 F.2d 91 (8th Cir. 1981);

Houston v. Benttree, Ltd., 637 F.2d 739 (10th Cir. 1980), cert.

denied, 451 U.S. 938 (1981). Under these cases, a plaintiff is

required to prove intentional discrimination to prevail in

an action under 42 U.S.C. §§ 1981 and 1982. See also

General Building Contractors Assn. v. Pennsylvania, 458 U.S.

375, 391 (1982).

A. Littles Failed Even to Establish a Prima Facie

Case of Intentional Discrimination.

Littles is not a wood dealer. Instead, Littles’ only

business is and always has been as a “producer.” The

only dealers that JSC contracted with during the relevant

period prior to this action were large, established dealer-

ships with particular qualifications and capabilities that

met specific needs of JSC in terms of species of product,

location outside of the Brewton area, and/or mode of

delivery. The undisputed evidence established that Littles

had none of these qualifications. Accordingly, Littles did

16

not meet even the minimum qualifications for a contract

with JSC, and Littles failed to establish even a prima facie

case of discrimination. See McDonnell-Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973); Brown v. American Honda

Motor Co., 939 F.2d 946, 949 (11th Cir. 1991) (citing Patter-

son v. McLean Credit Union, 491 U.S. 164, 187 (1989);

Zaklama v. Mount Sinai Medical Center, 842 F.2d 291, 293

(11th Cir. 1988)), cert. denied, 502 U.S. 1058 (1992).

B. JSC’s Standards for the Selection of Its Wood

Dealers Are Legitimate and Nondiscriminatory.

Even if Littles had been able to establish a prima

facie case, JSC established legitimate nondiscriminatory

reasons for its decision not to contract with him. Texas

Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-55

(1981); Brown, 939 F.2d at 949. The evidence was over-

whelming that JSC’s policy of contracting only with

dealers and for not contracting with Littles (even if he

had been in business as a dealer) was both rational and

nondiscriminatory.

C. JSC’s Reasons For Not Contracting with Littles

Are Not Pretexts For Discrimination.

As demonstrated by the evidence at trial and

described above, a comparison of Littles’ qualifications

with those of the dealers with which JSC contracts does

not support Littles’ claims of pretext. In particular, Littles

alleged throughout the pre-trial proceedings and at the

trial of this matter that Claude Alford, the owner of Tri-

State Timber Co., is the dealer most comparable to Littles.

17

As established by the evidence at trial, however, any

similarity between Littles’ operations and Alford’s ends

with the facts that they both work in the timber industry

and that, before Alford acquired an existing dealership

business, both were denied supplier contracts by JSC.

Furthermore, the equal impact of JSC’s policies on

whites precludes a finding of pretext. JSC’s selection cri-

teria have resulted in refusals of supplier contracts to at

least 58 white-owned businesses and only 2 black-owned

businesses. In addition, JSC terminated 45 roundwood

dealerships from 1984 to 1991, and the total number of

roundwood dealerships declined from 65 to only 40. Most

of these terminated dealerships had qualifications supe-

rior to those of Littles, and all were white-owned busi-

nesses. “It is difficult to hold that a practice which affects

applicants of all races in the same manner is actually

designed to conceal a racially discriminatory motive.”

Brown, 939 F.2d at 952 (citing Giles v. Ireland, 742 F.2d

1366, 1375-76 (11th Cir. 1984) (hiring criteria which affect

both blacks and whites equally are not discriminatory);

Cannon v. Teamsters & Chauffeurs Union, 667 F.2d 173,

176-77 (7th Cir. 1981) (same)).

Il. THE ELEVENTH CIRCUIT’S DECISION RAISES

NO ISSUE THAT WARRANTS REVIEW BY THIS

COURT.

A. Littles Did Not Proffer Any Evidence of Histor-

ical Discrimination by JSC in the Making of

Supplier Contracts.

Littles asserts that the courts below never addressed

his contention that JSC had “an intentionally discrimina-

tory policy of selecting only whites as dealers” prior to

18

1979. [Petition at 6] Based on this assertion, Littles makes

the ludicrous argument (without citation to authority)

that his contention of such a past policy of discrimination

“must be assumed to be true” for the purposes of his

Petition for Certiorari. [Id.] In fact, the reason the courts

below never addressed this allegation was because Littles

never proffered any evidence to support it.

Indeed, the only evidence on the issue of JSC’s histor-

ical contracting practices demonstrated that prior to the

1980’s, when JSC was dealing directly with a larger

number of wood suppliers, JSC contracted directly with

several black businessmen for the purchase of wood

products. [R.6. 562-63] Accordingly, not only was there no

evidence that JSC had “a past policy of discrimination,”

the uncontroverted evidence affirmatively demonstrated

that JSC did not have an intentionally discriminatory

policy or practice with respect to its supplier contracts.

Thus, the factual linchpin upon which all of Littles’

arguments in his Petition depends simply does not exist.

Since Littles never proffered any evidence whatsoever

that JSC had a past policy of discrimination with respect

to its supplier contracts, Littles’ arguments that the trial

court erroneously excluded such evidence, that JSC has

an affirmative obligation to eliminate the effects of such a

past policy, and that such a past policy warrants ignoring

the fact that Littles is utterly unqualified for a supplier

contract with JSC, raise issues that are not presented by

the facts of this case, in addition to being legally

unfounded.

19

B. Littles’ New Argument That JSC Relies on a

“Grandfather Clause” Is Not Supported by the

Evidence Presented or Proffered at Trial.

Littles argues in his Petition that JSC’s “dealers only”

policy since the mid-1980’s amounted to a “freeze”

imposed by JSC on new supplier contracts “at some point

prior to 1979.” [Petition at 5-6] Based on this new and

unsupported allegation, Littles argues that JSC’s dealer-

ship system “assures with almost mathematical preci-

sion” that blacks “will never even be considered for one

of its dealer contracts.” [Id. at 12 & 14]

This is the first time in this lawsuit that Littles has

relied on this characterization of JSC’s dealer-selection

policies. Giving Petitioner the benefit of the doubt, this

new characterization, made for the first time to this

Court, appears to be based on a misapprehension by

Littles’ new counsel of the testimony at trial. [See id. at 5-6

(citing “Tr. 442, 464, 578”)] At the cited pages, JSC’s wood

procurement manager testified that JSC has a policy of

contracting only with companies in business as wood

dealers. There is no evidence that JSC has ever had a

policy of restricting its contracts to companies that had a

contract with JSC or another pulp and paper company

prior to 1979. In fact, the uncontroverted evidence at trial

demonstrated that JSC entered into thirteen new supplier

contracts during the relevant statute of limitations

period, including with companies that were not even

established until after 1979.

Accordingly, Littles’ argument that the JSC’s “dealers

only” policy amounts to an “infamous grandfather

clause” of the type addressed in inapplicable voting

20

rights cases decided by this Court in 1915, Guinn v. United

States, 238 U.S. 347 (1915), and Myers v. Anderson, 238 U.S.

368 (1915), is entirely without factual foundation in the

record in this case. [See Petition at 12, 20-21 & n.40]

C. The Settlements of Employment Discrimina-

tion Lawsuits Against Separate Corporate Divi-

sions of JSC Are Irrelevant to Littles’ Claim of

Contractual Discrimination by JSC’s Wood-

lands Division.

As noted above, Littles offered no evidence to contro-

vert the fact that JSC’s Woodlands Division has never had

a policy of excluding blacks from consideration for a

supplier contract and has contracted with black-owned

businesses for the supply of wood products. Instead,

Littles proffered evidence at trial regarding two lawsuits

previously brought by Littles’ attorney against a separate

corporate division of JSC, both of which were settled

without any admission of discrimination by JSC. [Petition

at 13 & n.27] See Harrison v. Container Corp. of America,

Civ. No. 90-T-016-N (M.D. Ala. 1990); Suggs v. Container

Corp. of America, Civ. No. 7058-72-P (S.D. Ala. 1974). The

Suggs case relied on a disparate impact theory to chal-

lenge JSC’s seniority system at its Brewton Mill.4 The

Harrison case also was a Title VII employment discrimina-

tion case, and challenged promotion practices at the Mill.

4 Significantly, the disparate impact theory relied on by the

plaintiffs in the Suggs case was specifically rejected by this

Court four years after the settlement. See Teamsters v. United

States, 431 U.S. 324 (1977).

21

The central issue in this case is whether JSC’s Wood-

lands Division intentionally discriminated against Littles

in declining to make a wood supplier contract with him.

Accordingly, the trial court concluded that evidence of

unproven claims resolved in the Suggs and Harrison set-

tlements would inject issues relevant to unintentional

employment discrimination (including “disparate

impact” theory) that are not relevant in this case alleging

intentional contract discrimination, relative to persons

not involved in this case, against a separate corporate

division of JSC, and with regard to alleged discriminatory

actions that are dissimilar to those alleged in this case,

and would confuse the issues and mislead the jury. See

Fed. R. Evid. 403 (relevant evidence may be excluded “if

its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or

misleading the jury”).

In addition, evidence of unproven claims of employ-

ment discrimination asserted and resolved the Suggs and

Harrison lawsuits against the Brewton Mill would not

make Littles’ allegation in this case that he was discrimi-

nated against by the Woodlands Division in the making of

supplier contracts any more or less probable. Accord-

ingly, such evidence was irrelevant and inadmissible. Fed.

R. Evid. 401; cf. Fed. R. Evid. 408 (evidence regarding

settlement is not admissible to prove liability for the

claims settled). Accordingly, the district court excluded

evidence regarding the existence and settlement of both

cases, but allowed limited testimony regarding the

employment practices at the Mill that were contempora-

neous with Littles’ solicitations of a supplier contract

with the Woodlands Division. [App. at 31a-32a]

22

The district court also excluded evidence regarding

employment practices by JSC in its separate Mill division

in the 1960’s. [App. at 32a] In particular, Littles proffered

testimony by a Mill employee that no blacks worked in

certain Mill departments in 1966. [R.5. 87-88] This prof-

fered testimony of alleged employment discrimination in

job assignment by a separate corporate division of JSC

addressed conditions that were conclusively remedied by

a settlement that Littles’ attorney agreed to twenty years

ago. The class action consent decree in the Suggs case

specifically provided that “[c]ompliance with this Decree

shall be deemed compliance with Title VII and 42 U.S.C.

§ 1981 with respect to said individuals and said class.” Cf.

Hazelwood School District v. United States, 433 U.S. 299,

309-10 n.15 (1977) (“[Evidence of historical discrimina-

tion] might in some circumstances support the inference

that such discrimination continued, particularly where rele-

vant aspects of the decision-making process had undergone

little change.”) (emphasis added); accord Bazemore v. Fri-

day, 478 U.S. 385, 402 (1986).

In addition, allowing such evidence would have

potentially prejudiced the jury and would have delayed

the trial and wasted the district court’s time by forcing

JSC to respond with lengthy rebuttal evidence just as

though it were trying allegations of discrimination that, if

they ever had any foundation at all, have long since been

resolved. See, e.g., Delaware State College v. Ricks, 449 U.S.

250, 256-57 (1980) (the purpose of limitations periods is to

“protect employers from the burden of defending claims

arising from employment decisions that are long past”);

Harpring v. Continental Oil Co., 628 F.2d 406 (5th Cir. 1980)

(district court properly excluded relevant testimony

23

where evidence “would involve trying another lawsuit

within the existing lawsuit”), cert. denied, 454 U.S. 819

(1981).

D. The District Court’s Rulings With Respect to

Littles’ “Evidence” of Discrimination in the

Pulp and Paper Industry as a Whole Were

Within the Court’s Discretion.

Littles also relies in his Petition on cases alleging

unintentional “disparate impact” discrimination in

employment that were filed in the 1960’s and 1970's

against pulp and paper companies other than JSC. [Peti-

tion at 13 & n.25] “Evidence” regarding the cases cited by

Littles was not proffered at trial, and, obviously, would

properly have been excluded on grounds of relevance

had it been offered.

The “evidence” of “past discrimination” by the pulp

and paper industry as a whole that was proffered by

Littles at trial consisted of (1) expert testimony regarding

“historical” discrimination by the Southern pulp and

paper industry that did not even mention JSC as a partici-

pant in such discrimination or otherwise [App. at

32a-33a; R.2. 66; R.5. 9-11, 279-89; R.6. 804; CX 1], and (2)

testimony by a black producer that a paper mill unrelated

to JSC had refused him a supplier contract [R.6. 747-48].

Again, Littles proffered no evidence whatsoever to rebut

the fact that JSC had contracted with black-owned busi-

nesses for the supply of wood products prior to imple-

mentation of its policy of contracting with a fewer

number of larger dealers. This evidence affirmatively

24

demonstrated that JSC did not have a history of discrimi-

nation with respect to its supplier contracts.

The district court’s exclusion of Littles’ proffered

“evidence” was properly based on considerations of rele-

vance, prejudice, undue delay, waste of time, and the

potential for jury confusion. [App. at 32a-33a; R.6. 747-48]

The confusion and waste of judicial time and resources

inherent in the presentation of evidence regarding Littles’

allegations against the entire pulp and paper industry, in

the context of this lawsuit alleging intentional discrimina-

tion by JSC’s Woodlands Division, are apparent. Even the

strongest possible evidence of discrimination by other

companies would not be probative of discrimination by

JSC, and would have tended to confuse and mislead the

jury into thinking it could find intentional discrimination

by JSC based on even unintentional discrimination by

another company.

E. This Case Presents No Conflict with Decisions

of this Court or of Other Circuits.

Littles argues that the district court erred in holding

that his allegation of JSC’s “knowing perpetuation of past

discrimination” failed to state a claim under §§ 1981 or

1982, and that this holding was “flatly inconsistent with

reported decisions of this Court and of the other courts of

appeal.” [Petition at 7 & 16] On the contrary, the prece-

dent is well established that Littles’ “knowing perpetua-

tion” claim is a “disparate impact” claim that is not

actionable under 42 U.S.C. §§ 1981 and 1982. E.g., General

Building Contractors Assn. v. Pennsylvania, 458 U.S. 375

(1982) (plaintiff must prove intentional discrimination to

25

establish a violation of § 1981); Brown v. American Honda

Motor Co., 939 F.2d 946, 953 (11th Cir. 1991) (“[I]t is not

sufficient to show that the defendant was aware that the

particular practice would have a discriminatory impact.

Instead, the plaintiff must show that the defendant chose the

policy for precisely this purpose.” (emphasis added); citing

Forsberg v. Pacific Northwest Bell Telephone Co., 840 F.2d

1409, 1418 (9th Cir. 1988)), cert. denied, 502 U.S. 1058

(1992). Compare Griggs v. Duke Power Co., 401 U.S. 424, 430

(1971) (“disparate impact” model of proof addresses

practices challenged under Title VII that are “neutral on

their face, and even neutral in terms of intent,” but that

have the incidental effect of disadvantaging blacks to a

greater degree than whites) (emphasis added), with

McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973)

(“disparate treatment” model of proof addresses inten-

tional discrimination).

Littles attempts to circumvent these well-settled prin-

ciples with a convoluted interpretation of Bazemore v.

Friday, 478 U.S. 385 (1986), and the district court’s anal-

ysis of that decision in this case. [Petition at 16-17] Con-

trary to Littles’ mischaracterization, the district court did

not state that Littles’ claims would be compelling if

Bazemore were applicable. [Id. at 16 (citing App. 26a)]

Instead, the district court stated at the cited page that

Littles’ claims would be more compelling if this were a

disparate impact case, without citation to Bazemore.

Littles also describes several decisions of various cir-

cuit courts of appeals that have followed Bazemore as

“flatly inconsistent with” the lower courts’ decisions in

this matter. [Petition at 17-19 & nn.28-39] Each of the

cited cases involves the “continuing violation” theory

26

that has been developed, based on Bazemore, to address

statute-of-limitations defenses in discrimination cases

and to allow consideration of otherwise time-barred evi-

dence in cases where the “continuing violations” theory

applies. Bazemore’s “continuing violation” theory is not at

issue in this appeal. On the contrary, the jury in this case

found in favor of Littles with respect to JSC’s statute-of-

limitations defense. [App. at 42a]

Furthermore, the cases cited by Littles are entirely

consistent with Eleventh Circuit law. Like the cases cited

by Littles as “flatly inconsistent,” the Eleventh Circuit

applies the “continuing violation” theory both in cases

alleging unintentional and intentional discrimination.

Compaie, e.g., Beavers v. American Cast Iron Pipe Co., 975

F.2d 792, 796-97 (11th Cir. 1992) (applying “continuing

violation” theory in disparate impact case), with Mitchell

v. Jefferson County Board of Education, 936 F.2d 539, 548

(11th Cir. 1991) (applying “continuing violation” theory

in Equal Pay Act case alleging intentional discrimina-

tion). Indeed, one of the decisions cited by Littles as

“flatly inconsistent with” Eleventh Circuit law has been

specifically followed by the Eleventh Circuit. See Beavers,

975 F.2d at 796 (following Webb v. Indiana National Bank,

931 F.2d 434, 438 (7th Cir. 1991)). [See Petition at 17-18 &

nn.30 & 33] Accordingly, Littles’ purported conflict

among the circuits is not only irrelevant, it is non-

existent.

In any event and as noted above, the only “evidence”

proffered by Littles of “past discrimination” that JSC

allegedly “knowingly perpetuated” consisted of vague

testimony regarding discrimination in the pulp and paper

27

industry other than by JSC’s Woodlands Division. In con-

trast, the evidence offered in Bazemore related to discrimi-

nation by the same employer at issue. Accordingly, Littles’

garbled characterization of Bazemore would not make Lit-

tles’ proffered “evidence” admissible or his legal argu-

ments defensible, even if that characterization were

accurate.

F The Fourteenth and Fifteenth Amendment

Cases Cited by Littles Are Irrelevant to this

Lawsuit.

Instead of discussing the many cases decided under

42 U.S.C. §§ 1981 or 1982, which are dispositive of this

case, Littles cites a number of school desegregation and

voting rights cases that arise under the fourteenth and

fifteenth amendments. [Petition at 19-20] The analyses

applicable to suits alleging such invidious, unconstitu-

tional, state-sponsored violations of civil rights are com-

pletely different from those applicable to suits alleging

violations of §§ 1981 and 1982 by private businesses.

Specifically, “qualifications” are not relevant in the

school desegregation and voting rights cases cited by

Littles. Individuals are “fungible” for the purposes of

determining whether they have a constitutional right to

vote or to receive an education. In cases such as this,

however, it cannot be assumed “that all citizens are fung-

ible for purposes of determining whether members of a

particular class have been unlawfully excluded.” Mayor v.

Educational Equality League, 415 U.S. 605, 620 (1974).

“When special qualifications are required to fill particular

jobs, comparisons to the general population (rather than

28

to the smaller group of individuals who possess the nec-

essary qualifications) may have little probative value.”

City of Richmond v. Croson, 488 U.S. 469, 501-02 (1989)

(quoting Hazelwood School District v. United States, 433

U.S. 299, 308 n.13 (1977)); see also Peightal v. Metropolitan

Dade County, 26 F.3d 1545, 1553 (11th Cir. 1994). Given

that no blacks in the Brewton area are even in business as

wood dealers, let alone “qualified” under JSC’s stan-

dards, the constitutional standards relied on by Littles

would not affect the outcome of this case, even if such

standards were applicable.

CONCLUSION

Littles’ Petition does not and cannot identify any issue

that would warrant review by this Court. Instead, Littles

cites inapplicable cases and fabricates a controversy

among the circuit courts of appeal that does not exist and

would not be presented by this case even if it did exist.

Accordingly, Littles’ arguments in his Petition to this Court

are no less frivolous than the Eleventh Circuit found Lit-

tles’ arguments to be in the proceedings below.

For all the foregoing reasons, Respondent Jefferson

Smurfit Corporation (U.S.) respectfully requests this

Court to deny Herbert Littles’ Petition for Certiorari.

FRANK McRIGHT

Counsel of Record |

McRIGut, JACKSON, DoRMAN,

Myrick & Moore, L.L.C.

Post Office Box 2846

Mobile, Alabama 36652

334-432-3334