Opposition Brief — Fulton County v. Webster

c Supreme Court D.i

FILED

No. 02-

— OCT 24 200?

OFFICE OF THE CLERK

:

In The si

Supreme Court of the Anited States

es

v

FULTON COUNTY, GEORGIA,

Petitioner,

V.

DANIEL WEBSTER, et al.,

-

Respondents.

@

Vv

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

42>

Vv

RESPONSE IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

&

Vv

R. MASON BARGE

Counsel of Record

127 Peachtree St. NE

Suite 923

Atlanta, GA 30303

(404) 688-9780

PATRICK W. MCKEE

PATRICK W. MCKEE & ASSOCIATES

19 Spring St.

Newnan, GA 30263

(770) 683-8900

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6, respondent Webster Green-

thumb Co. shows that it is the only corporate respondent

to the Petition, that it is a privately-held corporation, that

it has no parent corporation, and that no publicly held

corporation holds 10% or more of its stock.

li

TABLE OF CONTENTS

Page

TABLE OF CORLTERIG ED vcvvscsvsservscernunstrvesncasensanbanhcens il

TABLE OF AUTHORITIIG ..ccsesscssisveccssessssvesnevsoesvens iv

STATEMENT OF THE CASE .................ccsseeeceseeeeeeees 1

ABQ MEIEIG SE 0scesssstsesasniinvteteemessinnanenenbelaaemens 7

I. A. The Eleventh Circuit’s Holding, That

Webster Greenthumb Stated a Valid Claim

for Retaliation under 42 U.S.C. § 1981, Does

Not Conflict with Board of Commr’s v. Um-

BORE oiiccevesccnuicorssscmeninihiaenannnaianaagaelanadas 7

B. McClintock v. Eichelberger Is Not Prece-

dent for Any Issue in This Case............... 9

C. The McClintock Dicta Do Not Conflict with

the Holding of the Eleventh Circuit............ 10

II. The District Court Correctly Instructed the

Jury Regarding Intent ...............ceeesee esse eeeenees 14

III. “Good Faith” Is Not a Defense to Intentional

Governmental Race Discrimination............... 14

A. Introduction............. sesseseeseesesesesseseeseeeenees 14

B. The District Court Correctly Instructed

the Jury Regarding Intent....................... 16

C. The Issue of a “Good Faith Defense” Is

Not Properly Presented by the Petition... 19

D. “A Good Faith Effort to Respond to a

Non-Frivolous Complaint of Discrimina-

tion” Does Not Constitute a Defense to

Intentional Race Discrimination ............. 22

E. The County's “Dilemma” Is Self-Imposed.... 23

pares eae = Son (a

ill

TABLE OF CONTENTS -— Continued

Page

IV. The District Court Was Required to Instruct

the Jury that the MFBE Program Was

Unlawful, to Prevent Inconsistent Verdicts... 25

ICRA TOIEN wc sccessescncrsssnssencccnspooverensezssossecrvencceseves 28

iv

TABLE OF AUTHORITIES

Page

CASES:

Board of Comm’rs v. Umbehr, 518 U.S. 668

Fa cistosainkanianeenheceabianenda nuibinegmdesipiiaiaeniats 7, 8, 9, 10, 11

Branti v. Finkel, 445 U.S. 507 (1980) ...........cceeeeceeeeeeeeeees 12

Burger King Corp. v. Pilgrim’s Pride Corp., 15 F.3d

Fe CR Ge Si iithiitiddncceenccistnnmnnan 26

City of Richmond v. J.A. Croson Co., 488 U.S. 469

f_ SUEIRFem ern: eam nr ie RO ee nO ED 11, 15, 18, 25

Contractors Ass’n of Eastern Pennsylvania ov.

Philadelphia, 91 F.3d 586 (3d Cir. 1996).............. sees 11

Crawford-El v. Britton, 523 U.S. 574 (1998)............. ee 20

Doe v. Sullivan County, 956 F.2d 545 (6th Cir. 1992) ....... 20

Engineering Contractors Ass’n of South Florida,

Inc. v. Metropolitan Dade County, 122 F.3d 895

CER Se Fe icra bicessccsichstinstiantnissinaiisenlioneibailamiditecasinn 15

Epic Metals Corp. v. Souliere, 181 F.3d 1280 (11th

SNE Fe sisiksscidsntescausdascoaaantnensaasteidbclnaebetaeiibacailaea tiadmaniaiatel 26

Ferrill v. Parker Group, Inc., 168 F.3d 468 (11th Cir.

Ms vsisssstcisinrsiiaa sels scdealnccieiialaagiidaiabeiaig diiaatitha aniciiidada 17

Goodman v. Lukes Steel Co., 482 U.S. 656 (1987)............. 17

Harlow v. Fitzgerald, 457 U.S. 800 (1982)................. 20

International Brotherhood of Teamsters v. United

RTI, CBB TB. BOG CIE FF vecsscesnscecnesevsesiscninsecteseissonseess 27

McClintock v. Eichelberger, 169 F.3d 812 (3d Cir.

RI nies ceivetiiiatallnsantiinshpuiwriaiiclibiatiasinaiaiaiiiaaacesi 9, 10, 11, 12, 13

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

ea RP 8 i cchsehiindahsecsinensesbctessbiipuidlainanipensneiaenialadanniste 27

OR ane ig rece ma ce rete Aton! <A Nyt

TABLE OF AUTHORITIES — Continued

Page

O’Hare Truck Serv, Inc. v. City of Northlake, 518

Wak FE 6 SE inchstevisavidesiecusenstaasncamaiaementnaen 9,11

Personnel Adm’r v. Feeney, 442 U.S. 256 (1979).......... 17, 18

Pickering v. Bd. of Ed. of Township High School

Dist. 205, 391 U.S. 563 (1968) ...............ccscccsceceeessesseeees 12

Rivers v. Roadway Express, Inc., 511 U.S. 298

CRUD scisitinccainisniincunicsCasibisitann Siliinlnscxabatadaiaaieckiaaaminial 13

United States v. Treasury Employees, 513 U.S. 454

(BEA ckittavensittintéinutadoliicicna nisin cana manae 12

Waters v. Churchill, 511 U.S. 661 (1994)........... ee eeee eee eee 12

Webster v. Fulton County, 51 FSupp.2d 1354

(N.D.Ga. 1999), aff'd, 218 F.3d 1267 (11th Cir.

1999), r’hrg and r’hrg en banc denied, 235 F.3d

1347 (11th Cir. 2000), cert. denied, 532 U.S. 924

CRIED nc virco viiantnicsusstiusitsiniiveaaceraaniaiiasdaiaaandiaaaiamnialae aime 4, 26

Wygant v. Jackson Bd. of Educ., 476 U.S. 267

Csi pins sctcnicicicndasctenthictsseancizanuncenaneeasaaie 14, 15, 16, 22, 23

STATUTES AND RULES:

SEU k 0 kimi passim

GEE TEAS. Be cecicsicsissinihivcinivinltittasciaestbainsitaitanpiintiietleiiaaes 13

MUSL. § MER. nae eae

POE.. Bix GRE BI Be tn cinnisnntninnucemenmanenaa 20

EF FR. i iseencsaenkesntinccincthiitcucndbiininaaiiniiaaes 5

TABLE OF AUTHORITIES — Continued

CONSTITUTION:

First Amendment........... Keni sieeileainn sbedeudualicssdipsigeaiaenaetaliins 11, 12

Fourteenth Amendment................ccseseseeseeeereeeeeeeees 3, 4, 6, 10

ee

STATEMENT OF THE CASE

In 1995, Fulton County, Georgia, sought bids to have a

tree removed from Mt. Paran Road. Webster Greenthumb,

a small family-owned tree service, bid $2,500 to remove

the tree. Ben’s Landscaping bid $3,800 to cut down the

same tree. Webster Greenthumb, which is owned and

operated by a white couple (Daniel and Peggy Webster),

had an excellent record of completing its jobs on time, in a

safe manner, and cleaning up the job sites. Ben’s Land-

scaping, which is owned and operated by an African-

American man (Ben Edwards), had a poor performance

history. The County awarded the contract to Ben’s Land-

scaping, paying it $3,800 for a job that Greenthumb would

have done for $2,500. (R1-1) The County offered no race-

neutral explanation for its conduct.

Thereafter, in 1996, pursuant to its statutory bidding

process, Fulton County awarded Webster Greenthumb a

Purchase Order in the amount of $66,000 (the same

amount as the previous year). Several weeks later, it

summarily reduced the Purchase Order by $20,500 to

$45,500. The sole reason for this reduction was to allow

the County to increase the amount of work given to Ben’s

Landscaping, which received an increase in its annual

Purchase Order in the precise amount of the reduction to

Webster’s Purchase Order — $20,500. (Plaintiffs’ Trial

Exhibits 203, 204, 380). Again, the reason for the award

modification was undeniably race, whether in the form of

meeting racial contracting goals or engaging in ad hoc

remedial action in favor of Ben’s Landscaping. (Pet. App.

at 63-64.)

2

During this period, Fulton County’ had in effect a '

published ordinance entitled “Minority and Female Busi-

ness Enterprise Program” (hereinafter “MFBE Program”)

which gave preferences in contracting to businesses owned

by women and members of certain minority ethnicities.

The MFBE Program had “goals” of amounts to be awarded

to minority businesses each year; by far the largest of

these was a goal of awarding 26% of all county contracting

to African-American businesses.” The MFBE Program was

implemented and administered by Defendant Michael

Cooper, the head of the County’s Office of Contract Com-

pliance. Cooper was responsible for ensuring that the

percentages of the MFBE Program were met.

The Fulton County Department of Public Works

wanted to award the Mt. Paran job to Webster Green-

thumb, as the money came from its budget and Webster

was not only less expensive, but also had a better track

record for safe and efficient work. Michael Cooper essen-

tially overruled them and required that the contract be

awarded to Ben’s Landscaping. (Similarly, it was Cooper

who later intervened after the 1996 Purchase Orders were

issued and required that the amounts be adjusted in favor

of Ben’s Landscaping.)

’ The Fulton County Commission acts as both the legislative and

executive body for the County and passed the MFBE Program into law.

A majority of the County Commissioners are African-American.

* Plaintiffs’ Trial Exh. 1. The other racial goals were 1% Hispanic,

1% Asian, and 1% Native American. The African-American “goal” was

artificially inflated and did not represent the amount of work a racially-

neutral system of contracting would be expected to produce. 51

F.Supp.2d at 1377-78.

ee

3

During this time, Cooper had received complaints

from Ben Edwards that his business, Ben’s Landscaping,

was suffering race discrimination. This — a desire to

remedy discrimination against Ben’s Landscaping — was

one of Cooper’s stated reasons at trial for intervening in

the two contracts, the other reason being a desire to meet

the 26% African-American contracting goal of the MFBE

Program. Practically the entirety of Edwards’ evidence of

discrimination was that he was black and that non-

minority companies were getting more work than his was.

There was no specific instance of discrimination identified,

no evidence that discrimination had occurred, no hearing

to determine the validity of Edwards’ complaint, and no

opportunity for Webster Greenthumb (or companies which

had gotten whatever bids Edwards was complaining

about) to participate. Furthermore, there was no attempt

to find a remedy other than taking work away from

Webster Greenthumb to give to Ben’s Landscaping.

In fact, Ben Edwards was later found to have insuffi-

cient basis for a complaint of race discrimination. His

complaint was groundless. He had been given full oppor-

tunity to bid on County work in the past and had received

all work that he was entitled to, where he was the low

bidder.

Based on these facts, in 1996 Webster Greenthumb

filed suit in the Northern District of Georgia, demanding

injunctive relief and damages for violations of the Equal

Protection Clause of the Fourteenth Amendment and 42

U.S.C. § 1981. The district court bifurcated the trial

process without objection. It determined that, first, it

would hold a bench trial to decide the equitable issues,

together with any facts necessary to its determination.

4

Afterwards, it would hold a jury trial to determine any

damages to be awarded.

After the bench trial in 1999, the district court found

that the Fulton County MFBE Program violated the Equal

Protection Clause of the Fourteenth Amendment and

entered a final judgment, enjoining Fulton County from

considering race or gender in awarding County contracts.

The district court decision was upheld in its entirety on

appeal. Webster v. Fulton County, 51 F.Supp.2d 1354

(N.D.Ga. 1999), aff’d, 218 F.3d 1267 (11th Cir. 1999), r’hrg

and r’hrg en banc denied, 235 F.3d 1347 (11th Cir. 2000),

cert. denied, 532 U.S. 942 (2001).

In 2000, the district court held the jury trial on

Webster’s damages claim. At the beginning of the trial, the

court read to the jury a statement of undisputed facts

previously entered into evidence during the bench trial.

The court further informed the jury that it had held the

MFBE Program to be unlawful, that this holding was

binding on the jury, and that the jury therefore must

accept that the MFBE Program was not a valid defense to

race discrimination.

The jury found that both Fulton County and Michael

Cooper had intentionally discriminated against Webster

Greenthumb on the basis of race. It awarded actual

damages of $8,750 against Fulton County and nominal

damages of $1 against Michael Cooper. (Pet. App. at 63-

65.)

Eg ee a a en

5

The verdict form also had two interrogatories (#3 and

#4) relating solely’ to Cooper’s claim of qualified immunity.

(Pet. App. at 64.) In #3, the jury found that Cooper dis-

criminated in order to meet the goals of the MFBE Pro-

gram, and in #4, it found that Cooper discriminated in a

good faith effort to respond to a non-frivolous complaint by

another contractor (Ben’s Landscaping) of discriminatory

treatment. Based on these two interrogatories, the district

court granted Cooper qualified immunity and voided the

award of nominal damages against him, pursuant to Fed.

R. Civ. Proc. 50(b).

Webster’s Retaliation Claim

In 1997 Fulton County solicited bids for tree removal

services in the amount of $250,000. Webster Greenthumb

and Ben’s Landscaping (among others) bid on the proposal,

and Webster was the low bidder. Evidence from the Pur-

chasing Department establishes that Webster Green-

thumb was actually awarded the bid in the amount of

$250,000 on March 6, 1997. Though the bid package was

forwarded through appropriate channels for finalization, it

simply disappeared. Webster was never awarded a Pur-

chase Order for its successful bid. Notwithstanding the

fact that Webster was the low bidder and Ben’s Landscap-

ing was not, Fulton County thereafter awarded Ben’s

Landscaping — and not Webster — an “Interim Purchase

* One can see from the verdict form itself that interrogatories #3

and #4 related solely to Cooper’s qualified immunity defense. The jury

was instructed to skip these questions unless it had found that Cooper

was individually liable for discrimination against Webster. (Pet. App. at

63, final paragraph.)

Order for Tree Removal” in 1997 (using an “informal”

process’) and assigned the work to him. (Plaintiffs’ Trial

Exh’s 518 & 531-549)

Based largely on these facts, Webster Greenthumb

amended its Complaint to include a count of retaliation,

which amendment was accepted by the district court.

Plaintiff’s claim was that Fulton County refused to award

this Purchase Order to it in retaliation for Plaintiff’s

assertion of rights under the Equal Protection Clause of

the Fourteenth Amendment and 42 U.S.C. § 1981, to-wit,

filing the initial lawsuit. On Defendant’s motion, the

district court dismissed the retaliation claim prior to trial

as a matter of pure law. (Pet. App. at 48-49).

The Eleventh Circuit Court of Appeals reversed the

dismissal, holding that the County would be liable in

damages for refusing to enter into a contract with Webster

Greenthumb, if the refusal were based on retaliation

against Webster Greenthumb for attempting to enforce

rights guaranteed by the Equal Protection Clause and 42

U.S.C. § 1981. (Pet. App. at 2.)

@

od

* That is, a Purchase Order bypassing the formal bidding process

and eliminating the opportunity for other persons (specifically Webster)

to place a lower bid.

Pee

7

ARGUMENT

I. A. The Eleventh Circuit’s Holding, That Web-

ster Greenthumb Stated a Valid Claim for Re-

taliation under 42 U.S.C. § 1981, Does Not

Conflict with Board of Commr’s v. Umbehr.

The Petition articulates the first “question presented” |

as follows:

I. Whether the Eleventh Circuit’s holding,

that respondent, as a “disappointed bidder,”

stated a claim for retaliation under 42 U.S.C.

§ 1981, is in conflict with the limited nature of

this Court’s decision in Board of Comm’rs v. Um-

behr.

(Pet. at i.) The answer to this question is authoritatively

provided in Umbehr itself, and the answer is “no”:

Because Umbehr’s suit concerns the termination

of a pre-existing commercial relationship with

the government, we need not address the pos-

sibility of suits by bidders or applicants for new

government contracts who cannot rely on such a

relationship.

———__—

Board of Comm’rs v. Umbehr, 518 U.S. 668, 685 (1996)

(emphasis added). The Eleventh Circuit’s holding cannot

possibly conflict with Umbehr on an issue that Umbehr did

not address.

At one point, Fulton County actually torpedoes its

own position, admitting that the current question “was

therefore unresolved [by Umbehr]. WGT’s retaliation claim

now presents the issue that was previously left open.”

(Pet. at 12.)

8

The County then returns to a lengthy line of argu-

ment that it had just admitted was invalid:

The Court of Appeals held that Umbehr was

not applicable. ... This is a distinction without a

difference, however, because both situations in-

volved a governmental entity allegedly punishing

a bidder or applicant for engaging in some sort of

protected activity. There is simply no logic in

denying disappointed bidders the opportu-

nity to enforce a constitutional right under

the First Amendment, while granting them

the opportunity to enforce a statutory right

under § 1981, and the Eleventh Circuit should

have applied Umbehr.

Moreover, the Eleventh Circuit recently de-

cided another case in which it further eroded

the limitation articulated in Umbehr.

(Pet. at 12-13, emphasis added.)

“Eroded the limitation”? This Court’s announced

refusal to decide an issue not before it hardly constitutes

precedent which can be “eroded”. This Court has never

“den[ied) disappointed bidders the opportunity to enforce a

constitutional right under the First Amendment” by filing

a retaliation suit, and specifically did not do so in Umbehr.

On the contrary, the Umbehr Court went out of its way to

forestall the argument presented in Question I, and it is

thus hard to find the least scrap of support for the Peti-

tioner’s argument.

9

B. McClintock v. Eichelberger Is Not Prece-

dent for Any Issue in This Case.

Although the matter is not raised in the Questions

Presented, Fulton County argues that the present case

conflicts with McClintock v. Eichelberger, 169 F.3d 812 (3d

Cir. 1999). No such conflict exists. The language in

McClintock upon which the County relies comprises dicta.

The dispositive (and therefore precedential) holding of the

Third Circuit was that the plaintiff had failed to plead the

matter in the district court and had thus failed to preserve

the issue for appeal.

In their brief in this court, appellants once

again contend that ‘elven assuming that this

Court finds that [they] do not have the same

status as the plaintiffs in Umbehr and O’Hare,

[they] are nonetheless entitled to protection from

government retaliation for exercise of their First

Amendment rights.’ We, however, will not en-

tertain this argument as appellants did not

plead it as the basis for relief in their complaint.

Accordingly, we will affirm the order of the dis-

trict court....

169 F.3d at 817.

Having refused to entertain the argument and having

affirmed the district court’s decision, however, the Third

Circuit proceeded to state that “even if [it] entertained”

McClintock’s substantive argument, it would hold that

such a claim would fail.

The Respondent believes that statements following

full disposition of the cause must be considered dicta.

Having decided the case, an appellate court may not create

precedent on an issue unnecessary to reach its decision, a

10

point of jurisprudence demonstrated by this Court’s

restraint in Umbehr.

C. The McClintock Dicta Do Not Conflict |

with the Holding of the Eleventh Circuit.

Webster’s retaliation claim seeks to protect his ability

to seek redress for violations of the Equal Protection

Clause of the Fourteenth Amendment and 42 U.S.C.

§ 1981. McClintock, however, was a First Amendment

case. It did not discuss “retaliation” under 42 U.S.C. -

§ 1983 in a broad sense and did not base its reasoning on

whether or not retaliation for the exercise of Constitu-

tional rights should generally state a cause of action, or

not. It was, rather, concerned with considerations peculiar

to First Amendment litigation that would not control — or

even be appropriate to the discussion of — a Fourteenth

Amendment race discrimination case.

* Because Umbehr explicitly did not address the issue of retaliation

accomplished by refusal to “make” contracts, Respondent will not waste

space arguing the differences between retaliation for free speech and

retaliation for filing an equal protection lawsuit, in the context of this

Court’s previous decisions. The issue simply is not ripe. The purpose of

this Section of the Argument is simply to demonstrate the fallacy of

assuming that the Third Circuit would necessarily repeat the

McClintock dicta as the controlling rationale in an equal protection

case.

The Respondent, however, by reference to this section of the

Response, reserves the argument that Umbehr (or any previous or

subsequent First Amendment case) is not contrary precedent for cases

seeking to protect a person, who has attempted to enforce rights

~guaranteed by the Equal Protection Clause, from governmental

retaliation.

N.S

11

The very foundation of the McClintock holding is a

concept largely foreign to equal protection:

In Horn v. Kean, 796 F.2d 668, 678 (3d Cir.

1986 ) (in banc), we cautioned against extending

First Amendment holdings if they would cause

the judiciary to ‘intrude itself into such tradi-

tional practices as contract awards by the gov-

ernment’s executive... .’

169 F.3d at 817.

The Third Circuit’s attitude toward governmental

contracting decisions which are purposefully race-

conscious — which on their face appear to violate the Equal

Protection Clause — is entirely different. Once a court is

convinced that a government is openly using race as a

deciding factor in awarding contracts, it will have no

hesitation to “intrude itself”, unless the government’s

conduct can survive the court’s strict scrutiny as to the

evidentiary basis for believing relief is required, and the

need to use a race-conscious remedy as a means of provid-

ing relief. E.g. Contractors Ass’n of Eastern Pennsylvania

v. Philadelphia, 91 F.3d 586 (3d Cir. 1996). Cf City of

Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).

A second distinction between the First Amendment

and the Equal Protection Clause appears in the second

stated basis for the Third Circuit’s reasoning in

McClintock. It considered that

it is difficult for a court to predict what the con-

sequences would be on political activity if the

First Amendment protections are extended be-

yond the Umbehr and O’Hare boundaries. Per-

haps the extension even would discourage

political activity.

2

12

169 F.3d at 817. That is, elected officials have their own

competing needs which must be weighed against an

individual's First Amendment rights, such as the needs to

exercise untrammeled free speech in the hurly-burly of the

political arena, to avoid having a dissident employee’s

speech from being attributed to the official himself, and to

accomplish the purposes of government in an efficient

manner. See, e.g., Pickering v. Bd. of Ed. of Township High

School Dist. 205, 391 U.S. 568, 568-69 (1968); Waters v.

Churchill, 511 U.S. 661, 675 (1994) (plurality opinion);

Branti v. Finkel, 445 U.S. 507, 518 (1980). See also United

States v. Treasury Employees, 513 U.S. 454, 475 (1995).

The rationale stated to support the McClintock dicta

simply do not apply to a case pleading retaliation to chill

the exercise of equal protection rights, and there is no

reason to speculate that the Third Circuit would find them

persuasive. It is hardly “difficult for a court to predict” the

consequences of allowing governments to blacklist contrac-

tors challenging race-conscious affirmative action statutes

— a baleful dampening of such lawsuits and a subsequent

denial, in practice, of equal protection in governmental

contracting. Unlike the tension between the First Amend-

ment rights of an elected government official and a bidder

for government contracts, there is neither a positive ideal

to be pursued, nor a legitimate state interest to be pro-

tected, by governmental retaliation against a contractor

who seeks equal treatment due to his race.

It is important to remember that this is a retaliation

claim. Governments certainly have “competing rights” in

the base litigation of the legality of an affirmative action

program — most obviously, the right and duty to end their

participation in race discrimination. In the context of

retaliation, however, the only competing interest is one

EE

13

the courts will hardly applaud: avoiding federal judicial

scrutiny of governmental race preferences.

There is another, very different, reason to suspect that

the Third Circuit would not differentiate cases involving

the termination of existing contracts from cases involving

the making of new contracts under 42 U.S.C. § 1981: The

statute itself. In 1991, Congress amended § 1981 to in-

clude the following language:

(b) “Make and enforce contracts” — defined.

For purposes of this section, the term “make

and enforce contracts” includes the making...

of contracts....

42 U.S.C. § 1981(b). By adding this provision to § 1981,

Congress’ very purpose was to forestall differentiation

between “making” and “maintaining” contracts, for pur-

poses of § 1981 enforcement. See e.g. Rivers v. Roadway

Express, Inc., 511 U.S. 298 (1994).

The Third Circuit has not had an opportunity to

discuss these powerful impediments to analogizing

McClintock to an equal protection case and until it does,

one must conclude that, given the chance, it would most

likely agree with the Eleventh Circuit. At the very least,

any deduction concerning the Third Circuit’s attitude

towards the issue presented in this case is speculative.

14

II. The District Court Correctly Instructed the

Jury Regarding Intent.

III. “Good Faith” Is Not a Defense to Intentional

Governmental Race Discrimination.

A. Introduction.

Respondent has consolidated its Response to Ques-

tions II and III in the Petition, as well as the County’s

argument made in pages 3-6 of the Petition’s “Statement

of the Case”, because these arguments represent varia-

tions on a single theme.

The very first paragraph of Fulton County’s State-

ment of the Case (Pet. at 3) shows the fatal flaw that runs

throughout the Petition. The “serious dilemma” Fulton

County claims to suffer is that it was not allowed to award

two county contracts on the basis of race, even if the

awards were a “good faith” response to a “credible’ com-

plaint of race discrimination”. (Jd.) This Court, however,

has repeatedly and clearly held that such nebulous and

permissive standards will not support governmental race

preferences. Strict scrutiny is required. If a county seeks

to defend a race-based preference on the ground that the

preference is remedial, it must meet two stringent stan-

dards.

First, it must provide the court with a “strong basis in

evidence” that the favored race is suffering discrimination

tied to the county’s actions. E.g. Wygant v. Jackson Bd. of

* The county’s use of the term “credible” is its own invention. The

term in the record is “non-frivolous”, a much lower standard. See Pet.

App. at 64.

15

Educ., 476 U.S. 267, 277 (1986). Fulton County’s plea that

it should be allowed a defense based on a “non-frivolous

complaint of discrimination” is the polar opposite of the

“strong basis in evidence” of discrimination against the

favored race, which strict scrutiny requires.

Second, it must demonstrate that the remedy is

“narrowly tailored” to achieve a specific remedial goal,

which involves a number of factors, such as “the necessity

for the relief”, “the efficacy of alternative remedies”, “the

flexibility and duration of the relief”, and “the impact of

the relief on the rights of innocent third parties.” Engi-

neering Contractors Ass’n of South Florida, Inc. v. Metro-

politan Dade County, 122 F.3d 895, 927 (11th Cir. 1997). It

must, most importantly, demonstrate full “consideration”

of remedies other than racial preferences and give reasons

why they have not been effective. Jd. Fulton County

proffered no evidence whatsoever that discrimination

against Webster was “narrowly tailored”, nor did it argue

such. Racial discrimination in favor of the minority con-

tractor was the first and only relief considered.

Fulton County’ “good faith” standard, which it

asserts should obviate the narrow tailoring requirement,

is even more lenient that the “reasonableness standard”

rejected in Wygant:

The Court of Appeals examined the means

chosen to accomplish the Board’s race-conscious

purpose under a test of “reasonableness”. That

standard has no support in the decisions of this

” E.g. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-95

(1989).

16

Court. As demonstrated in Part II above, our de-

cisions always have employed a more stringent

standard....

476 US. at 278-79.

The only dilemma faced by Fulton County is that it

does not want to obey the law expounded by this Court.

B. The District Court Correctly Instructed

the Jury Regarding Intent.

After the jury was sent out for deliberations, it sent a

note to the district court requesting clarification of the

legal meaning of “intent”. The context of the request made

it apparent that the jury was primarily confused as to

whether animus was a required element of intent.’ Fulton

County, misappropriating language from disparate impact

cases, asked the district court to instruct the jury that

discriminatory “intent” could be proven only by showing

the County intended to have “an adverse effect” on white

people. In context, the jury would have undoubtedly

construed this language as a requirement of ill-will or

hostile animus. In effect, the County tried to introduce a

“good faith” defense through the back door.

Webster thus asked the district court to instruct the

jury that discriminatory “intent” could be proven by

* Most likely, the jury’s confusion stemmed from the language of

Interrogatory #4 (Pet. App. at 63) — a question intended to be answered

after, and only if, the jury had found that Cooper individually inten-

tionally discriminated against Webster due to his race. Interrogatory #4

related only to Cooper’s defense of qualified immunity. See Section C,

directly below.

17

showing that the defendant intended to prefer one person

over another, because of their respective races, whether or

not the defendant showed overt hostility to one race. The

district court fashioned a response which clearly defined

the meaning of “intent” in a case of disparate treatment

due to race, with an explanatory sentence confirming that

hostile animus is not an element of “intent” in such a case.

The district court and court of appeals were entirely

correct. “Hostile animus” has never been required by this

Court as an element of proof in opposing openly race-

conscious governmental contracting. In Goodman v. Lukes

Steel Co., 482 U.S. 656 (1987), this Court found that a

union had intentionally discriminated against black

employees in violation of 42 U.S.C. § 1981, because it had

premised its decisionmaking on race, even though “there

was no suggestion that the [defendant] held any racial

animus against or denigrated blacks generally.” 482 U.S.

at 668.

The Eleventh Circuit has summed up the rule suc-

cinctly: “[RJacial animus and intent to discriminate are not

synonymous. [fn. 7] In other words, ill will, enmity, or

hostility are not prerequisites of intentional discrimination

[under § 1981).” Ferrill v. Parker Group, Inc., 168 F.3d 468,

472-73, 473 n. 7 (11th Cir. 1999).

The County cites Personnel Adm’r v. Feeney, 442 U.S.

256 (1979) — an adverse impact case — not for any actual

holding considered and then stated by the Court, but

because the language used in Feeney, when transplanted

to a disparate treatment case without modification, gives

18

the mistaken impression that a decision openly based on

race is legal, as long as the defendant’s motive was

“benign” — that is, as long as the defendant’s purpose was

to have a beneficial effect on the favored race, rather than

to have an adverse effect on non-favored races.

The issue actually addressed by the Feeney Court was

whether a non-discriminatory law with a predictable

discriminatory effect against women would be unlawful

per se, on the one hand, or whether it would be held

unlawful only if the legislative purpose was gender dis-

crimination, on the other. That is, whether the legislature

intended to pass the law granting legitimate preferences

to veterans in spite of a discriminatory effect, or because of

its discriminatory effect. The decision has no relevance to

a case like the present one, where “because of race” is the

very standard announced by the court.

The Court neither considered nor answered the issue

raised by Petitioner Fulton County; nor could it. The

language that Feeney was concerned with — and the

authority of its holding — was the difference between

“because of” and “in spite of”. Feeney did not intend to

* In effect, the County wants to reopen a hidden defense of benign

discrimination, long discredited in this Court: “the mere recitation of a

‘benign’ or legitimate purpose for a racial classification is entitled to

little or no weight. See Weinberger v. Wiesenfeld, 420 U.S. at 648, n.

16. ...” City of Richmond v. J.A. Croson Co., 488 U.S. 469, 500 (1989).

The weakness of the defense is compounded by the racial composition of

the Fulton County Commission. Cf. Croson, 420 U.S. at 495-96 (“The

concern that a political majority will more easily act to the disadvan-

tage of a minority based on unwarranted assumptions or incomplete

facts would seem to militate for, not against, the application of height-

ened judicial scrutiny in this case.”)

a amie ae

19

differentiate between the concept of “adverse effect” on one

gender as opposed to the concept of “preferential beneficial

effect” on the other gender, nor is it instructive whatsoever

where the stated purpose of the government’s action is

the favoritism of one person over another “because of”

their races.

C. The Issue of a “Good Faith Defense” Is

Not Properly Presented by the Petition.

Fulton County claims that it should be excused from

intentional race discrimination because the jury found

that a co-defendant, Michael Cooper, did “intentionally

discriminate against the Plaintiff on grounds of race in a

good faith effort to respond to a non-frivolous complaint by

another contractor of discriminatory treatment.” The

Petition, however, fails to recite facts that would be re-

quired as a foundation to support review of the third

Question Presented — specifically, facts demonstrating that

the County advanced “good faith” as a substantive defense

to County liability, that it asked the district court to

charge the jury concerning the substantive defense of

| “good faith”, that the district court refused to give the

| instruction, or even (since the jury found that Cooper’s

| immediate purpose was, at least in part, to implement the

unlawful racial goals of the MFBE Program) that the

alleged error was harmful.

20

Interrogatory #3 applied solely to co-defendant Cooper

and applied solely to the issue of qualified immunity.”

Fulton County cannot enjoy qualified immunity, a defense

applicable only to individual defendants. E.g. Doe uv.

Sullivan County, 956 F.2d 545, 554 (6th Cir. 1992). The

interrogatory, and its answer, have nothing to do with the

substantive issue of whether Cooper (much less the

County) intentionally discriminated against Webster

Greenthumb on account of Daniel Webster’s race." That

’° The jury awarded nominal damages of $1 against Cooper. The

trial court later entered a defense verdict in Cooper’s favor pursuant to

Fed. R. Civ. Proc. 50(b).

Respondent Webster Greenthumb objected to the inclusion of the

“good faith” interrogatory on the jury form even concerning Cooper’s

immunity claim, as it does not believe Cooper would be entitled to

immunity from a conscious act of race discrimination against Webster,

simply because he thought in “good faith” that someone had previously

discriminated against Ben’s Landscaping. Proof of qualified immunity

has no such subjective component (see Harlow v. Fitzgerald, 457 U.S.

800 (1982)), unless subjective motive is a substantive defense. Craw-

ford-El v. Britton, 523 U.S. 574 (1998). But, as shown below, “good

faith” is not a defense to per se race discrimination by a state actor. At

no point did Cooper claim that he would have made the same decision

absent the component of race. There was simply no “motivating factor

other than race” claimed or proved.

Respondent did not appeal Cooper’s dismissal or the court’s

inclusion of Interrogatory #4 on the verdict form, however, for three

primary reasons: 1) it believed Cooper had other, more colorably valid

grounds to support a finding of qualified immunity, 2) Webster's

chances of obtaining punitive damages against Cooper were not great

enough to justify the cost of the appeal, and 3) Other than punitive

damages, Webster obtained full relief from the County. Nevertheless,

Webster contends that the jury’s response to this interrogatory was

entirely irrelevant to any issue in the case. -

" In this regard, it is critical to note the exact language of the

interrogatory: “Did the Defendant Michael Cooper intentionally

discriminate against the Plaintiff on the grounds of race in order

(Continued on following page)

21

jury answered that question in Interrogatory #2. (Pet. App.

at 63.)

Whether or not a government might enjoy a defense of

“good faith”, where it has committed an act of racial

discrimination to remedy what it considers in good faith to

be discrimination in favor of another race, is thus irrele-

vant to the outcome of this case. The district court prop-

erly instructed the jury:

If you find that the Defendant Fulton

County would have, more likely than not, made

the same contracting decisions concerning the

plaintiff even if the unlawful motive was not

present, the plaintiff is not entitled to damages

with respect to such an action where there were

motivating factors other than race.

(Doc. 294-Pg. 19). The jury found, thus, that neither

Cooper nor the County would have made the same con-

tracting decisions except for the race of the two contractors

and its verdict was both correct and consistent.

to....” (Pet. App. at 64, emphasis added.) What it does not say is that

“Defendant Cooper acted not on the basis of race, but instead ... ,” or,

as misstated in the Petition, “Faced with Edwards’ complaint, the jury

found that Cooper acted in good faith to remedy it.” (Pet. at 23.) The

verdict will not support any inference that Cooper took his “remedial”

action with a non-discriminatory motive, such as doing so as part of a

racially-neutral program of remedying discrimination. Yes, Cooper was

concerned “in good faith” with remedying discrimination, but only

discrimination against African-Americans. One must note, in this

regard, the difference between the County's eagerness to remedy an

unsupported complaint of race discrimination made by Ben Edwards,

compared to its utter intransigence in response to a valid complaint of

discrimination from Daniel Webster. Res ipsa loquitur.

22

D. “A Good Faith Effort to Respond to a Non-

Frivolous Complaint of Discrimination”

Does Not Constitute a Defense to Inten-

tional Race Discrimination.

The County asks this Court to ignore hundreds of

previous cases requiring courts to engage in strict scrutiny

of affirmative action, and hold that a governmental actor

can choose its contractors by race — on an ad hoc basis! —

as long as it is “responding in good faith” to a “non-

frivolous” complaint of race discrimination, without

offering any evidence that the discrimination occurred or

that another remedy was inadequate to resolve it. In an

individual case, it would replace the “strong basis in

evidence” required by this Court with almost the weakest

level of evidentiary burden possible: “non-frivolous”. It

would entirely eliminate the requirement of “narrow

tailoring”. And to top off the cake, it would promote such a

defense in the face of an established motive of furthering

an illegal racial goal.

The Petitioner even has the temerity to cite Wygant v.

Jackson Bd. of Educ., 476 U.S. 267 (1986), as supporting

the proposition that a government has a “good faith”

defense to intentional race discrimination! The central

holding of Wygant is the very opposite. Wygant’s primary

holding was to establish a much higher standard of proof

to be met by a governmental actor prior to engaging in

“remedial” race discrimination.

Wygant considered the possibility that a public school

board could show preference to minority employees during

layoffs, if it “reasonably” believed that the minority was

under-represented in the workforce due to previous dis-

crimination in hiring. The Court concluded that the school

board could not, and announced that such “remedial

23

discrimination” would be subject to strict scrutiny. The

discriminating actor’s “good faith” belief that it had

previously discriminated against the race now favored

simply does not present a sufficient defense to a suit under

the Equal Protection Act. Rather, the state actor commit-

ting discrimination is required to show “convincing evi-

dence that remedial action is warranted” (476 U.S. at 277)

and, in addition, show that the remedy for such prior

discrimination is “narrowly tailored”, with full considera-

tion of the possibility that a non-race-conscious remedy

might have remedied the situation. E.g. 476 U.S. 279-280

and n. 6.

The bottom line is that the Wygant Court rejected, as

insufficiently strict, a stronger defense than the “good

faith” defense espoused by Fulton County:

The Court of Appeals examined the means cho-

sen to accomplish the Board’s race-conscious pro-

gram under a test of ‘reasonableness.’ That

standard has no support in the decisions of this

court.

476 U.S. at 275. Fulton County seeks to find support in

Wygant for a “good faith” and “non-frivolous” defense

which must be considered even more lenient than a

“reasonableness” test. Its Petition on this issue-falls far

short of showing grounds for a writ of certiorari.

E. The County’s “Dilemma” Is Self-Imposed.

Fulton County laments that it had one complaint of

race discrimination from a black vendor (Ben’s Landscap-

ing) and another complaint of discrimination from a white

vendor (Webster Greenthumb), in the same category of

contracting, tree removal services. Therefore, the County

24

argues, “The only way for the County to have avoided

liability in both cases was for Cooper to guess’ correctly in

advance of litigation which contractor would ultimately be

held to have a valid complaint and to remedy only that

contractor’s claim.” (Pet. at 23.)

Only willful blindness could account for such a string

of absurd propositions. The County could easily have

handled the complaint from Ben’s Landscaping without

committing a second, clearly discriminatory, act.

In the first place, it could pass a statute prohibiting

race discrimination!” When Mr. Edwards complained, the

County could have gathered evidence. It could have held

hearings. It could have made formal or at least informal

findings of fact. It could simply have paid Ben’s Landscap-

ing $1,300 while giving Webster Greenthumb the Mt.

Paran contract, spending the exact same amount of money

without committing discrimination against Webster. It

could simply adopt and follow a policy of giving bids to the

lowest qualified bidder regardless of race. It could appreci-

ate the simple distinction between Edwards’ vague and

unsupported complaint, and its own intentional award of

work based on the bidders’ races. If the County itself

really thought it had discriminated against Ben’s Land-

scaping, it could pay damages in settlement of the case

“ The fact that Cooper apparently “guessed” that the minority

company had suffered discrimination and the non-minority company

_ had not, despite strong contrary evidence, speaks for itself.

'* Remarkably, Fulton County had not even passed an ordinance

prohibiting race discrimination in contracting or subcontracting, much

less a procedure for determining the validity of such complaints.

25

and insure that no race discrimination occurred in the

future. And so on.

One must suspect the County’s very credibility in its

complaint of a dilemma. It has engaged in extensive and

protracted litigation against Webster over a claim for

roughly $10,000, while its response to Ben Edwards was

an immediate attempt to find a monetary remedy, prior to

any sort of adequate investigation.

One thing is certain. If the County thought there was

valid reason to believe it had discriminated against Ben’s

Landscaping — which, as it turned out, it did not — the

solution is not to turn around and “remedy” the unproven

allegation by openly discriminating against an innocent

white bidder in a later contract. Affirmative action must

be the last line of defense to proven discrimination, not the

first reaction to an unproven allegation. E.g. City of

Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).

The County has nobody to blame but itself. Its “di-

lemma?” is entirely a self-inflicted injury.

IV. The District Court Was Required to Instruct

the Jury that the MFBE Program Was Unlaw-

ful, to Prevent Inconsistent Verdicts.

The last of the County’s “Questions Presented” hardly

even pretends to state grounds for certiorari. It seeks

nothing more than another appeal of the application of

well-established law to the facts of the case.

26

The Countys MFBE Program was unlawful. The

matter was decided in a prior trial, the verdict was af-

firmed by the proper court of appeals, and this Court

denied a petition for certiorari.“ The parties at the jury

trial were the same as the parties at the bench trial; the

case was the same case; the MFBE Program was the same

program. The precise issue — the legality of the Fulton

County MFBE Program — had been subject to a final

verdict.

Under the law of the case doctrine, “findings of fact

and conclusions of law by an appellate court are generally

binding in all subsequent proceedings in the same case in

the trial or on a later appeal.” Burger King Corp. v. Pil-

grim’s Pride Corp., 15 F.3d 166, 169 (11th Cir. 1994)

(citations omitted). See Epic Metals Corp. v. Souliere, 181

F.3d 1280 (11th Cir. 1999).

The district court’s instructions concerning the MFBE

Program were not only correct under the law of the case

doctrine, but were also required to prevent an inconsistent

verdict. The jury was legally bound to follow the prior

decision. It thus had to be informed of both the decision

and the legal implications stemming from it. To leave the

jury in the dark would have served no purpose except to

spawn a mistrial.

Apparently, the County would have had the jury

return a verdict in its favor on grounds that the MFBE

Program was legal; but the law of the case doctrine (not to

“ Webster v. Fulton County, 51 F.Supp.2d 1354 (N.D.Ga. 1999),

aff’d, 218 F.3d 1267 (11th Cir. 1999), r’hrg and r’hrg en banc denied,

235 F.3d 1347 (11th Cir. 2000), cert. denied, 532 U.S. $42 (2001).

27

mention the doctrine of issue preclusion) forbids this. One

might find grounds supporting a petition for certiorari if

the circuits were in conflict about the application of the

law of the case doctrine or this Court had previously held

that the law of the case doctrine is flawed. Fulton County,

however, makes no such argument.

The argument in Section IV of its Petition, instead,

argues that the courts below somehow contravened Inter-

national Brotherhood of Teamsters v. United States, 431

U.S. 324 (1977). It is hard to glean exactly what the

County is talking about. The County’s cries of a “presump-

tion” in Plaintiff’s favor is not supported by any record

citation. The district court placed the burden of proof

entirely on the Plaintiff for all issues the jury was author-

ized to decide.

Concerning the evidentiary issues, an individual may

often, within the primary discretion of the district court,

introduce evidence of other incidents of discriminatory

conduct to prove pretext. “Other evidence that may be

relevant to any showing of pretext includes facts as to...

[the defendant’s] general policies and practices with

respect to minorities.” McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973). In the

present case, the district court admitted some such evi-

dence and disallowed other such evidence, depending on

how relevant to issues in Webster’s case it considered the

specific evidence to be. (E.g. Pet. App. at 60.) Concerning

the evidence that was admitted, the County has had its

argument heard by the district court (which also upheld

many of the County’s evidentiary objections), and has had

its appeal on the admission of evidence heard by the

Eleventh Circuit. Its inclusion here is, purely and simply,

28

an attempt to appeal, again, the application of established

law to the facts of the case.

¢

CONCLUSION

In the quagmire of issues raised in the Petition, only

one — the first — suggests a question potentially appropri-

ate for this Court’s review at some time in the future. The

written portion of the Eleventh Circuit’s decision is a case

of first impression in the appellate courts: whether 42

U.S.C. § 1981 will support a cause of action for govern-

mental retaliation against a citizen’s efforts to protect his

rights under the Equal Protection Clause, where the

retaliatory act is the government’s refusal to enter into a

contract with such person. The Petition’s first “Question

Presented” does not show any disagreement with this

Court’s prior decisions, or conflict among the circuits, or

major issue of national significance, or any other reason

why it is appropriate for review by the Supreme Court of

the United States.

This Court may be called upon to resolve this issue at

some point. Equally possible, it may never need address

the issue. At this time, with only one circuit having de-

cided the issue, it would certainly be premature.

The other three Questions ask for nothing more than

another appeal claiming “the misapplication of a properly

stated rule of law.” The court of appeals did not even see a

need to issue a written decision on these issues, and it

therefore summarily affirmed the district court’s careful

29

and well-reasoned holdings. Respondent Webster Green-

thumb therefore asks that the Petition be denied.

Respectfully submitted, '

R. MASON BARGE

Counsel of Record

127 Peachtree St. NE

Suite 923

Atlanta, GA 30303

(404) 688-9780

PATRICK W. MCKEE

PATRICK W. MCKEE & ASSOCIATES

19 Spring St.

Newnan, GA 30263

(770) 683-8900