County of Los Angeles v. Davis – Oral Argument – December 05, 1978

Media for County of Los Angeles v. Davis

Audio Transcription for Opinion Announcement – March 27, 1979 in County of Los Angeles v. Davis

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Warren E. Burger:

We’ll hear arguments next in County of Los Angeles against Van Davis.

Mr. Stewart, I think you may proceed when you are ready.

William F. Stewart:

Thank you, Mr. Chief Justice and may it please the Court.

This is an employment discrimination case in which the Fire Department of the County of Los Angeles was found liable in order to make future hires in accordance with a quota for blacks and Mexican Americans until the Fire Department received — achieved racial parity with the surrounding County population.

The case raises the issue of whether 42 U.S.C., Section 1981 embodies constitutional equal protection standards and requires a showing of discriminatory intent to establish a violation of that statute or whether Title VII standards in which intent is irrelevant or applicable.

Since the discriminatory hiring took place prior to the March 1972, effective date of Title VII as to public agencies, the case raises the issue of whether through 1981 Title VII standards could be applied retroactively as to public agencies.

The other fundamental issue is whether the quota hiring order mandating 40% minority hires until racial parity is achieved, so within the remedial authority of the trial court under the facts and the findings of the case.

This employment case is different from others of recent vinigen (ph) that comes before the Court with an express finding by the trial judge that the County of Los Angeles had not engaged in any intentional discrimination.

The County had long administered a traditional civil service aptitude tests for fire fighters as well as other applicants for County jobs similar to those utilized by the District of Columbia in Washington v. Davis.

Other testing criteria for this particular job were great at oral interview, a 5’7” minimum height standard and physical and mental tests — medical tests.

This action was brought in January of 1973 by plaintiffs, none of whom were prior unsuccessful applicants for the position.

And they challenged only two exam criteria, two written exams, one given in 1969 and one given in 1972 and the height standard, as these were the only exam criteria shown to have a disproportionate impact on minorities.

Now the administration of the 1972 case was somewhat unique because after the 1969 exam, the County of Los Angeles in an attempt to increase minority representation in the Fire Department and to reduce any disparate impact of their tests, decided to go to a random selection method.

In that regard, they administered the written tests in January of 72, graded it, 97% of the applicants passed.

The County’s intention then was to draw by random selection applicants from those that passed, the 97% that passed and then proceed with them through the regular process, the oral interviews and other portions of exam which had not shown to have any adverse impact.

Unfortunately, the random selection method was enjoined by another lawsuit on the basis that it violated the civil service provisions. Consequently, there was no hiring by the County for two years during the pendency of this litigation.

Finally in desperate straits because of the shortfall in fire fighter personnel, the County proposed to interview the top 540 applicants on the written exam for the purpose of filling the immediate requirements of the Fire Department.

There was no hiring however for approximately two years prior to the effective date of Title VII as to public agencies until after the judgment in this case.

The law – the threat of the lawsuit intervened and there was — and consequently the County never did effectuate the intent to interview the top 544 applicants, but proceed with them all through the remaining stages of the examination process and no adverse impact nor was there any discrimination in the compiling of the subsequent eligibility list.

During the trial, the court found no intentional discrimination on behalf of the county, but in reliance on Title VII standards, held the county liable because their written exams in 1969 and 1972 had a disproportionate impact on minorities and had not had been validated.

The court upheld the height standard.

The court went on to impose a remedy for the purpose of eliminating or remitting alleged past discrimination, a remedy of 20% blacks and 20% Mexican Americans hired until complete racial parity was achieved between the County Fire Department and the community, the County of Los Angeles.

The Ninth Circuit on re-hearing raised — on re-hearing after the County raised the intent issue in the wake of this Court’s decision in Washington v. Davis, reversed the trial court’s height finding, upheld the court order and appalled the finding of discrimination in the use of the tests on Title VII grounds, notwithstanding the lack of discriminatory intent and expressing the holding that intent was irrelevant under Section 1981 as it is under Title VII and that there was no operation of the distinction between Title VII liability and liability based on Section 1981.

We believe that the Circuit Court seriously erred in holding that Title VII liability principles applied to Section 1981 and that no intent to discriminate need be established.

This Court in Griggs versus Duke Power articulated judicially the disproportionate impact standards based upon this Court’s interpretation of Title VII of the Civil Rights Act of 1964.

The issue in this case then really revolves around the intent of the 39th Congress and the original enactment of the statute we now know as Section 1981, and the effect of any of Congress’s enactment of Title VII in 1964.

William H. Rehnquist:

Mr. Stewart, you have undoubtedly seen the Solicitor General’s amicus brief in this case suggesting that the case boils down to a lot less than it seem to after the revised opinion of the Ninth Circuit.

Are you going to discuss that at some point in your argument?

William F. Stewart:

Yes I will, Mr. Justice Rehnquist.

I did also discuss it in my reply brief.

William F. Stewart:

Well, perhaps I could address it now.

I just simply to state that I think the government’s position was wrong on that point.

The quota hiring order in this case designed to — was clearly designed to remedy past discrimination and was clearly predicated upon a finding of violation of Section 1981.

That clearly raises the issue of the standard of liability under Section 1981.

We feel it has to be resolved.

If this — if the Court determines that constitution equal protection standards apply to Section 1981, then under the trials court’s finding in this case that there has been no deliberate indiscrimination then we believe that the quota hiring order must fall in its entirety.

The quota hiring order is still in effect.

The County has been obeying that quota of hiring order since judgment was entered in this case.

The Ninth Circuit Court of Appeals did not disapprove the quota hiring order.

It expressly approved of the quota hiring order, stating, we do not necessarily believe that the 1:1:3 hiring ratio is incorrect.

William H. Rehnquist:

But am I right in thinking that you concede that you are governed by Title VII from March 1972 on?

William F. Stewart:

We do.

William H. Rehnquist:

And that the Court of Appeals concedes that the only gap in this period was between January and March 1972, that is that the last time there was any effort to administer the test was in January 1972?

William F. Stewart:

The test was given in January 1972.

It (Inaudible) while they attempted to resolve the question of the random selection method.

The test was never implemented in a disproportionate manner in that there were hires made based on rankings on the test.

The County never did go ahead and interview any of the top 544 applicants on the test.

They went and interviewed the entire 97% that passed.

They interviewed them in January and February of 1973 and then compiled an eligibility list at time, an eligibility list which was conceded by the plaintiffs in this case not to have been done in a discriminatory manner.

William H. Rehnquist:

Well, wouldn’t it be possible for this Court to vacate the decree of the Court of Appeals and — on a standing basis and simply send it back to the District Court or the Court of Appeals for re-framing of an appropriate remedy, considering what a small tail is left of the case?

William F. Stewart:

Well, there is still the question of the appropriateness of remedy under any presumed Title VII violation that may have occurred.

The plaintiffs have claimed that their un-effectuated intent to interview the top 540 rose to the level of the Title VII violation.

I do not believe however they content that, that justifies or forms a predicate for a quota.

Byron R. White:

The Court of Appeals did not know that?

William F. Stewart:

No, they did not.

Byron R. White:

They haven’t reached and dealt with Title VII?

William F. Stewart:

Well, the Court of Appeals quite frankly Mr. Justice White is quite confusing.

They have intermixed the standing questions with 1981 and Title VII and so forth.

I read that case is holding as to have violated Section 1981 notwithstanding the lack of intent and that — and uphold the quota hiring order for the purposes of remedying past discrimination which could only have occurred under Section 1981.

Byron R. White:

I would think that if that — you would suggest that if there were Title VII — if there are some claims on the other side about Title VII, the Court of Appeals should first address Title VII?

William F. Stewart:

Well, the Court of Appeals did addressed that subject.

Byron R. White:

Yes, but it rested its final holding on 1981 you just said, as the way — as you read it?

William F. Stewart:

As I read it but the Title VII question was also before them and I imply that they found no Title VII violation.

John Paul Stevens:

Let me ask, what do you understand the 1981 violation to have been and when it occurred and who were effected?

William F. Stewart:

I understood from the reading of the Ninth Circuit Court of Appeal’s decision that the 1981 violation consisted of the utilization of the 1969 written exam and presumably the height standard that had an adverse or disproportionate effect on minorities without showing that it was validated.

John Paul Stevens:

Now with respect to the 1969 test, it’s correct, is it not that there are no plaintiffs who were affected by that test?

William F. Stewart:

That is correct.

John Paul Stevens:

How can that be before us?

William F. Stewart:

Pardon sir.

John Paul Stevens:

Then how can we have a 1981 issue arising out of the 1969 test?

William F. Stewart:

We have the 1981 issue because the quota order, which the court approved, it’s predicated on the 1981 violation since the —

John Paul Stevens:

Do you argue that the order should be set aside because there is no plaintiff entitled to that relief before the Court?

William F. Stewart:

I think the quota hiring order could be vacated on the basis that it was excessive in that it seeks to remedy discrimination for which plaintiffs have no standing to represent the parties.

John Paul Stevens:

Then we do not have to reach this 1981 issue, do we?

William F. Stewart:

Well, I think it is a significant perhaps on a technical basis.

John Paul Stevens:

In which you write a law review article about it.

William F. Stewart:

It is a [Laughter] – there have many written about it sir, but I think it is a critical issue that is really before the Court because the quota hiring order is predicated upon the finding of a 1981 violation.

And as I will note in the moment, I think there is significant problems with finding no intent standard under Section 1981.

The adverse consequences on the enforcement procedures of Title I and Title VII for one, the effect on cases that are currently pending with other governmental agencies, they have been sued around 1971 and 1972 under, before Title VII become effective as to their discriminatory acts in which the Court said that intent was not required and it applies, the question of the applicability retroactively of Title VII to public agencies who do not become subject to Title VII until 1972.

But we believe that Congress in 19 — 39th Congress when they enacted Section 1981 could not have had the Title VII adverse impact validation standards that arose through the court’s Griggs decision in mind.

The purpose of Section 1981 was to remove the legal disabilities of blacks and to provide them with equal protection of the laws and certainly many civil service tests have administered by the federal government subsequent to the enactment of Section 1981 that probably had the desperate impact on minorities and the Congress could not have intended to outlaw those tests simply by showing that they had a disparate impact.

The impact of the enactment of Title VII in 1964 on 1981, I submit was very little if any.

Congress considered 1981 to be a separate and independent statute.

There appears to be no indication that they intended to change that statute or to remove that remedy.

This Court in Johnson v. Railway Express, held that the statutes certainly were overlapping and related, but not necessarily that they employed the same standards of liability, certainly they are related to the same end of eliminating discrimination, they apply to racial discrimination.

They both apply to employment discrimination and they both apply to intentional discrimination, but that is not to say that they both apply to Title VII standards of liability predicated upon showing of disparate impact.

The Constitution itself overlaps to those answers well that this Court held in Washington versus Davis that the constitutional standards for discrimination were not the same as those for Title VII.

The argument is raised that they should construe Title VII in pari materia with the Civil Rights Act; those Civil Rights Act now in Section 1981.

But this strikes a rather discordant note because the 1964 Civil Rights Act expressly excluded public agencies such as the County of Los Angeles for its coverage.

So you cannot engraft into Section 1981 Title VII standards by leaning on the rather weak stem of the court — of the Congress’s enactment of Title VII in 1964 because they obviously intended not to extend that coverage to public agencies until 1972.

William F. Stewart:

To hold that the intent is irrelevant under Section 1981, I think would have adverse consequences.

It would permit circumvention of Title VII procedures that were laboriously debated in Congress.

It would extend Title VII liability standards to employers that Congress intended to exclude.

Cases have come up recently in the lower courts, Johnson Versus Alexander where the government argued that the army was not subject to Title VII, but if a suit could be brought under 1981 and apply Title VII standards that way then the distinction or the exclusion of the military from the coverage of Section — of Title VII in 1964 is relatively meaningless.

Similarly in Johnson versus Ryder (ph), the claim was made that a bona fide seniority system was illegal, by attempting to apply Title VII standards through Section 1981 despite this Court’s ruling in the Teamsters case.

The recognizing an instant – an intent standard for Section 1981 will not adversely impact upon the enforcement of equal employment opportunities because Title VII is now applicable to public and private agencies.

The plaintiff still has the benefit of Section 1981 in private and public cases where you can show we believe deliberate discriminatory intent does not mean that statistics are not prohibitive in Section 1981 actions.

This Court indicated in Arlington Heights, they can be prohibitive for proving the question of intent, but that is a far cry from saying that the Title VII standards of — having to show job relating to supply.

Now, I would like to address the quota issue.

As I stated in response to an earlier question, the quota was predicated upon a violation of Section 1981.

It would have followed that if there has been no violation of Section 1981 because there has been no showing of intent, the quota would fall.

Now, we are mindful of the decisions of the lower courts, including the observation of this Court in Bakke that a quota hiring order may be appropriate as a remedy in cases of proven discrimination.

The issue at bar however in regards to the quota is not the appropriate, that is quotas in general, but whether the one entered in this case was over broad, not properly tailored to the extent of the proven wrong, and was in excess of the court’s remedial jurisdiction.

There is clear distinction that has to be made between liability and remedy.

The quota is a remedy and it’s not a device to achieve racial parity, but it must be related to the proven wrong.

The proven wrong in this particular case was the 1969 test, which had a disparate impact on Mexican Americans in the high standard.

The quota remedy should be applied with caution because it impacts on innocent third-parties.

It is not like applying remedy of back pay where it is a question between the employer and the employee, but the quota remedy obviously adversely impacts on innocent third-parties who have been denied a job if they were not a member of the or beneficiaries of the quota themselves.

So we must balance the rights of the victims as against the rights of the innocent third-parties.

Judging the quota order in this case, we feel that it’s clearly excessive.

It was imposed to remedy past discrimination and not to assist the plaintiffs, none of whom had been prior applicants.

It was not limited to the actual ascertainable victims of any discriminatory practices.

It was designed to cure presumed discrimination no matter how remote and time it may have occurred.

The County Fire Department was composed of individuals who have been hired over 25-30 year period.

It is one of those positions like of law enforcement where there is a concern for long-term retirement and so forth, and so there is little turn over in that department.

And so the quota order in this case presumes a pattern of discrimination extending far back beyond the 1969 test, even beyond Title VII’s enactment in 1964, discrimination that was totally unproven.

And the anomaly of the case is that individuals who may have been victimized by any discrimination would have their claims time barred as they are not filed in time, but minorities who have not actually suffered discrimination would get a preference under this quota at the expense of whites and other minorities, not black and Mexican Americans, would have the beneficiaries of the order.

Thus we feel that the quota in this particular case is now achieved the character of a device to achieve racial balance and not a remedy for proven discrimination.

In fact, the finding say that it is designed to cure past discrimination as indicated by the racial imbalance of the department.

And of course as has been mentioned by questions from Your Honors, the fact that the plaintiffs have no standing to represent past applicants, indicates that the quota order was not designed to remedy any discrimination as far as they were concerned, but was designed to remedy presumed past discrimination, discrimination that apparently the court felt would have resulted in the County Department being at racial parity.

William F. Stewart:

There is no evidence as to what the racial composition of the County Fire Department would have been, even it had no discriminatory practices if any had been utilized in past years, no consideration of the racial characteristics and demography of the County of Los Angeles whether there has been an increase or decrease in blacks or Mexican Americans over the years.

The quota order is simply —

Potter Stewart:

This plan was given in 1972 – given in 1969 and had been given periodically back over the years?

William F. Stewart:

That is right, Your Honor.

Potter Stewart:

Is it an identical exam or just the same type of exam?

William F. Stewart:

It was the same type of exam.

There had been some changes over the years.

There was no evidence we could ascertain as to the effects of the 1968 exam which is one immediately preceding the 1969 exam, or no records as to previous exams.

The only evidence in the trial was as to the exam content itself, I think it was the 1972 exam and statistics relating to the impact of the 1969 exam.

Potter Stewart:

And no evidence in years prior to 1969 as to even who were taken the exam, in terms of ethnic?

William F. Stewart:

That is correct.

There was a slight bit of evidence as far as 1968 was concerned.

The percentage of minority applicants for the 1968 exam was extremely low.

I would say, it is in the pretrial order and it is in the appendix, but I would say, it was somewhere in the vicinity of about 3% or 4% minority applicants for the 1968 exam.

Potter Stewart:

And only applicants would have taken the examination?

William F. Stewart:

That is correct, Your Honor.

And that is contrasted with the 25% minorities that took the 1972 exam was as a result of an active recruiting effort the County had entered into in the intervening years.

Potter Stewart:

Because part of the claim, the original claim in this case was that the discrimination led to very few applicants because of the practice of present members of the Fire Department to tell their friends and brothers and cousins about it and let them in the Fire House to get some practical experience and to prepare for the exam and so on, that there was no such recruiting or even knowledge of the availability in among Negro and Spanish American groups, isn’t that correct?

William F. Stewart:

That was one of the allegations, but it was unproven and there was —

Potter Stewart:

And that — the fate of that allegation was that it was District Court do not rely on it nor do the Court of Appeals?

William F. Stewart:

That is correct and there was no finding that they had engaged in discrimination.

And to the extent that there was any intent involved, I think that was dissolved by the court’s express finding that the County had not discriminate — they had not engaged in deliberate discrimination and to the contrary, the court’s finding was the County had made the efforts to recruit more minorities to the Fire Department.

Byron R. White:

While you are interrupted, perhaps you could explain to me if you can, what the basis was for the Court of Appeals’ statement in its footnote 6, right after it had held that the 1969 test was irrelevant in this case because the applicant list had been exhausted before any of these present plaintiffs or applicants.

They had not been affected by the 1969 test, but that second paragraph on footnote 6; “it is equally clear that defendant’s decision to employ the 1972 written test as the selection device was an unlawful employment practice, which had adverse impact on the racial class of plaintiffs.”

Now, your insistence is that although the 1972 test was given, the only time that any time after that when you hired people, you claim it’s conceded that there was nondiscriminatory hiring.

William F. Stewart:

Oh!

Yes.

It is conceded there has been no discriminatory hiring, so before the effective date of [Cross Talk]

Byron R. White:

So your claim is that the 1972 test has not had an adverse effect on any of these plaintiffs?

William F. Stewart:

That is correct and I think they concede that in their answer.

Byron R. White:

So what is the basis for this second paragraph of this footnote 6?

William F. Stewart:

I believe that it is an implication that the court felt – that the Ninth Circuit felt that the mere threat to utilize the test by interviewing the top 544, goes to the level of the Title VII violation.

Byron R. White:

Is there some finding one way or another with respect to the 1972 test in the District Court’s opinion?

William F. Stewart:

Yes, the District Court found that the 1972 test violated 1981 and Title VII.

Byron R. White:

Well I know it, just looking at it as a test, but did it find that these particular plaintiffs had been adversely affected by the test?

William F. Stewart:

No, it did not find that they had been adversely affected by the test.

In fact, the plaintiffs —

Byron R. White:

Was it they find it that they had one?

William F. Stewart:

Well, I think that it was unnecessary for the court to do that because the plaintiffs themselves in their second amended complaint alleged that we had stopped using discriminatory hiring practices.

Byron R. White:

Well, then again —

William F. Stewart:

And conceded that they were not adversely affected.

Byron R. White:

Because if the Court of Appeals is wrong, what they say in the second paragraph, is not the case over?

William F. Stewart:

Well –

Byron R. White:

Because they have already said that the 1969 test did not involve any illegality because it hasn’t affected anybody.

William F. Stewart:

The case, the Ninth Circuit decision Mr. Justice White is to my view inexplicable but the case is not over because the county approved the quota hiring order.

Byron R. White:

I don’t mean the quote hiring order.

What I mean is that shouldn’t you win if they are wrong in that statement?

William F. Stewart:

Yes I think we should win sir and that is exactly my position.[Laughter]

Byron R. White:

I know you —

William H. Rehnquist:

Without going to 1981.

William F. Stewart:

Pardon?

William H. Rehnquist:

Without going to 1981?

Byron R. White:

Or 19 — or Title VII or anything else?

William H. Rehnquist:

Just standing.

William F. Stewart:

Just standing alone I think could win the case forth.

Byron R. White:

Well, your suggestion is that there is no basis in the District Court’s findings for that statement?

William F. Stewart:

The District Court did find that the County had violated Sections 1981 and Title VII now.

Byron R. White:

I know but they did not find that these plaintiffs have been affected by them?

William F. Stewart:

No, they did not, but there is no question that these plaintiffs had not been affected you know by the 1972 exam.

Byron R. White:

You see that the Court of Appeals not only said the 1972 test was an unlawful employment practice, but it said it had an adverse impact on these plaintiffs.

William F. Stewart:

The footnote 6.

Potter Stewart:

Second paragraph of footnote 6.

Byron R. White:

Appendix 83.

It said it was an unlawful employment.

William F. Stewart:

Well, the court must have been implying that the threat to utilize the 1972 test in a method that would have had an adverse impact if implemented, adversely affected them and gave them standing to challenge the 1972 test.

Byron R. White:

But in any event, you do not know of anything in the District Court’s findings which supported that part of this statement?

William F. Stewart:

Not at the moment sir.

I would reserve the rest of my time for rebuttal, thank you.

Warren E. Burger:

Mr. Hunt.

A. Thomas Hunt:

Thank you Mr. Chief Justice and may it please the Court.

On the standing point, it is important we believe to note that the holding of the Ninth Circuit that these plaintiffs did not have standing is based entirely upon the fact that the scope of the class was defined as present and future applicants.

The Court of Appeals at page 13-34 specifically stated in light of the fact that plaintiffs class did not include any prior unsuccessful applicants, it follows that plaintiffs neither suffered nor were threatened with any injury in fact from the use of the 1969 examination.

Warren E. Burger:

You would lost me counsel, I do not find the page 13-34.

A. Thomas Hunt:

I was reading from the Fed Second cite Your Honor.

William H. Rehnquist:

That is the first opinion, isn’t it?

A. Thomas Hunt:

No, that is the second opinion.

William H. Rehnquist:

The second opinion comes before the first one in that.

William J. Brennan, Jr.:

Can you give us the page in the appendix, do you have the page in the appendix?

A. Thomas Hunt:

The second opinion begins on page 79 and it is at the second sentence on page 83 Your Honor.

Potter Stewart:

I am looking at the appendix to the petition for the certiorari.

A. Thomas Hunt:

That is what I was looking at originally.

Potter Stewart:

And there is no 13-34 in there.

Warren E. Burger:

There is no page 13-34, it goes from the first page of the opinion to page 13-37.

Potter Stewart:

Right.

A. Thomas Hunt:

Alright Your Honor, I meant to say 13-37, yeah.

Potter Stewart:

13-37.

A. Thomas Hunt:

13-37 in the lower right hand corner.

Potter Stewart:

Right.

A. Thomas Hunt:

And on page 83 of the appendix.

Potter Stewart:

Okay, you are getting to defendants of challenge.

A. Thomas Hunt:

Yeah, the next sentence after that sentence.

In light of the fact that plaintiffs’ class did not include any prior unsuccessful applicants, it follows that plaintiffs neither suffered nor were threatened with any injuring in fact from the use of the 1969 examination.

Now, we must concede that the scope of the class in this case did not include past applicants, the record is perfectly clear.

And logically, we must concede that it does follow that past discrimination cannot be attacked and logically from that I am afraid we must concede that the kind of relief that was obtained in this case is hard to justify.

The truth of the fact is —

Byron R. White:

Don’t get to the relief yet, do not get to the relief, what about standing?

A. Thomas Hunt:

That is what I am discussing.

I believe the — our position is that the plaintiffs in this case, the case was litigated as if the plaintiffs in this case had represented past applicants.

The original complaint was played on behalf of past applicants.

The law is clear, they could have represented past applicants.

The case as Mr. Justice White are cited on pages 43 and 44 —

Byron R. White:

Well this case when it was — the Court of Appeals wrote twice on the case?

A. Thomas Hunt:

Yes.

Byron R. White:

And you are suggesting they misunderstood the case?

A. Thomas Hunt:

Your honor in the original brief —

Byron R. White:

Let us assume they were right though, let us just assume for the moment that they were absolutely correct in everything they said in the text where you read, what about the case then?

What are we supposed to do?

A. Thomas Hunt:

The case should be remanded to the District Court in order to correct the oversight of the fact that the scope of the class did not include past applicants.

Byron R. White:

Let me go on one part, now what about the – let us assume they are right that the 1969 test is not implicated here because these people just were not affected by the 1969 tests?

A. Thomas Hunt:

Or the class.

Byron R. White:

Or the class, now how about the 1972 test?

A. Thomas Hunt:

They were Your Honor.

Byron R. White:

How were they?

A. Thomas Hunt:

The defendant was about to take an all white class, excluding the plaintiffs and the present class.

We brought the lawsuit in the defendants status.

So they were threatened with discrimination.

Byron R. White:

Well, I know but they were not — but I take it you do not claim that this class, that any of them were ever rejected on the basis of this test?

A. Thomas Hunt:

That is correct Your Honor.

Byron R. White:

Well then, what is the basis for the Court of Appeals’ statement in the footnote that this 1972 test had an adverse impact on the racial class of plaintiffs?

A. Thomas Hunt:

My interpretation is the same as my opponents that the defendants were about to discriminate and rebut the lawsuit and that —

Byron R. White:

Do you think that is enough to get some relief if you concede that none of your class members was ever rejected because of his performance on this test?

A. Thomas Hunt:

We do not think that Your Honor and that is why we think that this case should be remanded to the District Court to correct the oversight.

Byron R. White:

Well, is it true that none of them was ever rejected based on his performance on this test?

A. Thomas Hunt:

That is correct.

William H. Rehnquist:

And counsel, if you disagree with the Court of Appeals in this language we have been going over and over, in light of the fact that plaintiffs class did not include any prior unsuccessful appraisal — plaintiffs neither suffered nor were threatened with any injury.

If you want to upset that conclusion, you would have to cross petition for certiorari, would you?

A. Thomas Hunt:

Your Honor, we have decided not to cross petition because record is clear to us that it was a mere oversight by the District Court that past applicants were not included.

The case was tried as if past applicants have been represented.

The evidence, all went into trial as to past applicants.

William H. Rehnquist:

But the Court of Appeals just would — turned that around?

A. Thomas Hunt:

They turned that around Your Honor and it was our intention to correct it on the remand and we are suggesting that this Curt should, as the government does, should vacate the granting of certiorari and correct this mere oversight.

Warren E. Burger:

Did you go to Court of Appeals on that theory after the decision?

A. Thomas Hunt:

Yes we did.

Warren E. Burger:

On that precise ground?

A. Thomas Hunt:

Yes we did Your Honor.

John Paul Stevens:

Are there any named plaintiffs who took the 1969 test?

A. Thomas Hunt:

No, there are not Your Honor, but —

John Paul Stevens:

But then who can represent the class of those people?

A. Thomas Hunt:

The case as cited in our brief of pages 43 and 44, establish that plaintiffs can represent present applicants, for example, can represent past applicants and vice versa.

William H. Rehnquist:

That wasn’t the definition of class?

A. Thomas Hunt:

That is correct Your Honor and that is why we believe it should be remanded to the District Court for a correction of the oversight?

William H. Rehnquist:

Well, may be you should find some new clients and start a new lawsuit?

A. Thomas Hunt:

Your Honor, the record in this case shows beyond question that it was a mere oversight and the oversight should be corrected and I would like to reiterate the reasons the record is clear.

First of all, the original complaint was plead on behalf of past applicants.

Page 4 of the record shows that.

Secondly, at the trial, evidence came in as to past the applicants and I would like to emphasis to the Court that it was not just limited to the 1969 test, we put on a great deal of evidence as to —

John Paul Stevens:

But Mr. Hunt, before you get to the evidence, what does the order certifying the class provide, there was such an order I take it?

A. Thomas Hunt:

The order certifying the class provides — excuse me, there was no formal order, the order was included in the judgment.

This case went to trial very quickly.

John Paul Stevens:

Does that comply with the federal rules?

A. Thomas Hunt:

Your Honor, I am not sure whether that is the case.

This case went to trial almost immediately after the granting of the motion for class certification and we included the order in the judgment.

Thurgood Marshall:

Is that provided the government suggest that we just get rid of it, but there is nothing —

A. Thomas Hunt:

I think that is their basic ground and we agree with them.

Thurgood Marshall:

But do not you think that is good, now you do not know what is going on?

A. Thomas Hunt:

We do not know what is going to happen.

Our opinion is that in view of the fact that a mere oversight occurred —

Thurgood Marshall:

[Voice Overlap] make some very bad law, couldn’t they?

A. Thomas Hunt:

Your Honor, I feel very strongly that it is important to realize that this case was tried on behalf of past applicants.

Our basic case was not as is suggested by either the Ninth Circuit opinion or my opponent that it was just written test but our basic case was a prima facie case based on work force statistics.

This employer had one half of 1% black in a very large black general population area and that was our basic case.

John Paul Stevens:

Let us take first of all with the litigant side before we talk about the merits.

I just read pages 4 of your complaint, there is nothing in there by anyway taking the 1969 test?

A. Thomas Hunt:

Your Honor, I would refer you to the cases cited on pages 43 and 44 of our brief that is —

John Paul Stevens:

No, no, I do not want to get to the law.

I want to get what in the record shows that the 69 test was ever put in the issue on behalf of someone who took the test?

A. Thomas Hunt:

It was put in issue on behalf of the class of past applicants.

John Paul Stevens:

[Voice Overlap] define back to 1868 or when is the date on which application became significant?

A. Thomas Hunt:

The class — we believe we were litigating the case, the court believed we were litigating the case, it is my impression, everybody believed we are litigating the case on behalf of past applicants.

John Paul Stevens:

When you say past applicants, but how do I know that includes 1969 applicants and people took the test in 1969, what in the record shows that?

A. Thomas Hunt:

Your Honor, none of the named plaintiffs, we do not —

John Paul Stevens:

I understand it, where does the record show that anybody thought they were litigating on behalf of someone who took the test in 1969, certainly you are complaint does not?

A. Thomas Hunt:

Alright, Your honor the stipulations in the pretrial order have great detail as to the 1969 test and the findings of the court included the 1969 test.

I would point out that my opponent stated that the District Court did not make findings as to the 69 test.

The findings are that the —

John Paul Stevens:

Where is the class certification order?

A. Thomas Hunt:

It is in the judgment.

William H. Rehnquist:

It is on page 45 of the appendix, is not it?

Byron R. White:

And that you drafted and submitted the judgment?

A. Thomas Hunt:

The judgment was jointly drafted by both counsels Your Honor.

Byron R. White:

Well and it says all present and future applicants.

A. Thomas Hunt:

Yes Your Honor and that was an oversight.

William J. Brennan, Jr.:

You mean you wanted to have added something to it or what?

A. Thomas Hunt:

On remand, we would want to show to the District Court that this case that there was a mere oversight and that —

William J. Brennan, Jr.:

I know but how do you want to change?

A. Thomas Hunt:

Past, present, and future applicants.

William J. Brennan, Jr.:

Past, present, add the word past.

A. Thomas Hunt:

That is correct Your Honor.

Hugo L. Black:

Oversight on whose part?

A. Thomas Hunt:

It was oversight in our opinion on all counsel and the court.

The evidence came in this case as to past applicants without objection.

The fact that it is so clearly an oversight Your Honor, I think is exemplified by the fact that in the very first sentence of the Court of Appeals’ original decision, they have mistakenly stated that the class included past applicants.

Everyone just assumed the past applicants were represented in this case.

William H. Rehnquist:

But you said a minute ago in response to my question, which I asked you in a very leading form, the Court of Appeals just turned it around and then you said, yes, but when you read the class certification in the judgment, the Court of Appeals did not turn it around, they were just following what the District Court had done?

A. Thomas Hunt:

It followed the oversight and that is why we believe it should be remanded to correct the oversight.

William H. Rehnquist:

Here is a case involving Fire Department in about the third or fourth most populous County in United States, very significant issues in it and you are talking about an oversight?

A. Thomas Hunt:

That is correct Your Honor.

I can only say that this judgment includes the order of class certification, the issue was not tried, the issue was not argued in the Court of Appeals.

The Court of Appeals fastened on it on its own motion.

The first time that I realized the past applicants were not represented Your Honor was when I read the second opinion of the Court of Appeals.

Thurgood Marshall:

How can you have an oversight when on your side, you have got 12 lawyers?

A. Thomas Hunt:

Your Honor —

Thurgood Marshall:

Unless [Voice Overlap] you have 12 lawyers and then you have an oversight?

How many lawyers do you need —

A. Thomas Hunt:

Your Honor, there were not 12 lawyers in this case for the —

Thurgood Marshall:

Well, you said on page 51, page 51 of the appendix, or may be I counted a little —

A. Thomas Hunt:

Your Honor, that includes our counsel besides the plaintiffs’ attorneys.

Those are all of the attorneys.

Thurgood Marshall:

I said on your side, intervened on your side?

A. Thomas Hunt:

Your Honor, the two lawyers tried this case for the plaintiffs.

Thurgood Marshall:

We really do not know what we don’t know, do we?

A. Thomas Hunt:

Your Honor, I could not agree more with that.

Thurgood Marshall:

How can we dismiss this as improvidently granted and let stand a judgment which you say that everybody agrees is an error?

A. Thomas Hunt:

I think the District Court should be given the opportunity to correct the oversight.

Thurgood Marshall:

But didn’t you ask them to?

A. Thomas Hunt:

I asked the Court of Appeals to instruct the — on a petition for rehearing, when this oversight first came to my intention, I asked the Court of Appeals to instruct the District Court to investigate whether it was an oversight.

Thurgood Marshall:

But did not come to your intent until after the appeal?

A. Thomas Hunt:

That is correct Your Honor.

Thurgood Marshall:

Where were you all the time?

A. Thomas Hunt:

Your Honor, all I can say is that —

Thurgood Marshall:

Oversight.

A. Thomas Hunt:

That it is an oversight past, present, future applicant, the case was fully tried.

Thurgood Marshall:

But do you know any saying in the statutes, the constitution or rules of this court that require us to correct your oversight?

A. Thomas Hunt:

Your Honor, I think the District Court should be given the opportunity to correct the oversight and that is why it should be remanded.

Byron R. White:

But why did not you ask the Court of Appeals to do that for you and it refused apparently?

A. Thomas Hunt:

I have no explanation for that.

They denied my petition for rehearing without explanation.

Byron R. White:

But they did remand it?

A. Thomas Hunt:

They remanded —

Byron R. White:

They did remand it because it disagreed with the District Court on the height requirement?

A. Thomas Hunt:

And because of their finding on [Voice Overlap]

Byron R. White:

— with your position.

It does not seem to me if you read it and yet they have refused to correct your oversight?

A. Thomas Hunt:

Your Honor, I really do not consider it to be my mistake.

This order was jointly prepared by all parties and by the court and we all are guilty of the oversight.

Byron R. White:

But did not the court ask you to submit a judgment I suppose?

A. Thomas Hunt:

Yes, the court asked both parties.

Byron R. White:

And the winners usually start off with it, do not they?

A. Thomas Hunt:

In this case Your Honor, the court asked both parties to prepare the judgment.

Byron R. White:

Who drafted it, who submitted the initial draft?

A. Thomas Hunt:

We drafted it together Your Honor.

John Paul Stevens:

Mr. Hunt, did you ask for monitory relief on behalf of the past applicants?

A. Thomas Hunt:

We did not Your Honor because in this case, they were beyond of the statute of limitations period.

As far as monetary relief under Section 1981, they were not beyond the statute of limitation’s period for equitable relief because —

Byron R. White:

Well, but if they are beyond the statute limitation for monetary relief, what possible advantage can there be to sending it back and asking that the judgment be equitably for the benefit of past applicants?

A. Thomas Hunt:

So that those past applicants will have the opportunity to be hired prospectively in order to give them the best — relief we can under the circumstances of this case.

John Paul Stevens:

Well the judgment says word for word exactly as it is, it does not make a bit of difference whether a past applicant is part of the case or not, they are just all apply in the certain same way, do not they?

A. Thomas Hunt:

Yes Your Honor, the difference it makes is that in that case, the hiring order, the 40% hiring order based on past discrimination is appropriate.

I agree with Mr. Justice Marshall’s point that he has made at least twice here in his questions to me that this is a very confused situation and I have attempted as best I can to get the matter back to the District Court in order to correct the oversight, in order to determine what the hiring order actually is going to be and I suggest that, that is what should be done.

The point I must reiterate is that it is not true that the liability in this case was only based on two tests.

The liability on this case basically was an un-rebutted prima facie case, which this Court in the Teamsters case recognized as being an appropriate way to establish liability in cases such as this one.

Potter Stewart:

And the Teamsters case was a government pattern or practice case, was not it?

A. Thomas Hunt:

Yes.

Potter Stewart:

Under Title VII?

A. Thomas Hunt:

Yes.

Potter Stewart:

And I suppose that the opinion should be read in the realization that, that is what the case was?

A. Thomas Hunt:

Yes and this case was a class action, which we all believe was brought on behalf of the past, present, and future applicants and we were attempting to establish the prima facie case by the same way as the government did in that case and our statistics did show, the District Court specifically recognized those statistics.

The problem that we face here is not only this confusion on every one’s part as to whether past, present, and future or just present and future applicants where represented, but in addition, we have the problem that there has been a remand on, assuming there is to be a hiring order, how much the hiring order should be.

And again, it is difficult to deal with a case where we do not have a concrete situation before.

And for that second reason, we agree with the government as we did in the opposition to the petition for certiorari that the remand should be carried out — this Court and the parties before it should have a concrete situation before it.

Perhaps the most important point on this standing is and I would reiterate coming back to a question by Mr. Justice Stevens that these plaintiffs did have standing to represent past applicants.

We have cited a long line of cases at pages 43 and 44 of our brief, Your Honor, which show that past, present applicants can represent past applicants and vice versa, employees can represent applicants and vice versa.

William H. Rehnquist:

Are there cases from this Court?

A. Thomas Hunt:

Your Honor, those cases are all employing — the answer to your question is no.

There are all cases following courts, this Court’s decision in other areas of the law.

This Court has never ruled on the specific issue in the employment discrimination area.

It has ruled on it in other areas such as shareholders, derivative suits and other types of classed actions that you do not need a plaintiff for each and every minor part of the class.

For example, it is important to note in this case that the test used by the county that was in the process of being applied to the current applicants, were also used in earlier years.

My opponent indicated the modifications were very minor, those tests are in it, we are putting evidence as plaintiffs’ exhibits three and four; the past test as well as the present test.

And under those circumstances, it is clear to us that these plaintiffs did have standing to challenge and bring a lawsuit on behalf of past applicants as well as present and future applicants.

A. Thomas Hunt:

The 1981 issue comes before this Court assuming that past applicants can be and were represented the — it was interesting to me to read the argument made by the county in their reply briefs, which was just filed last week and I would direct the Court’s attention to the argument made by my opposing counsel that the Court of Appeals did affirm a hiring order and almost an assumption that the oversight will be corrected on the remand and it is at that point that we get to the 1981 issue.

William H. Rehnquist:

Well, about the oversight issue that you just mentioned, I notice in the appendix at page 3, on paragraph 5 of your compliant that you asked for relief of behalf of a class composed of all persons who are either black or Mexican and American and who presently are or will become employed as firemen?

A. Thomas Hunt:

Your Honor, in the original which is not part of the appendix, at page 4 of the record, pass the case is put on behalf of past applicants.

That is not part of the appendix in this case.

Byron R. White:

On what complaint is the case filed?

This one or the original one?

A. Thomas Hunt:

No Your Honor, the complaint was tried on the basis of the pretrial order, which is part of the appendix.

And if you take even a cursory look at the appendix, it shows a great deal of evidence stipulated to in the pretrial order as to past discrimination.

William H. Rehnquist:

You have a complaint here, you have a District Court opinion and you have a Court of Appeals’ opinion and they are all unanimous to the effect that past applicants are not represented.

Now, in my days of practicing law that would have about ended it and you wouldn’t say that on the intervening trial where evidence to a different effect was introduced could have possibly changed those three things all coming down the same way?

A. Thomas Hunt:

Your Honor, there are great many other things such as that the past evidence was admitted without objection as to the past discriminates, it was stipulated to in the pretrial order.

My recollection is that the pretrial order specifically provides that it is to govern the proceedings in the case.

Warren E. Burger:

Wasn’t that a time for a motion to amend the pleadings to confirm with the facts and the evidence?

A. Thomas Hunt:

Yes Your Honor, I would agree with that except that it was brought to no one’s intention until the second opinion of —

Thurgood Marshall:

We do not do such things.

Are you telling —

A. Thomas Hunt:

I agree Your Honor.

Thurgood Marshall:

Are you telling us that complaint is out of this case?

A. Thomas Hunt:

Your Honor I agree that this Court.

Thurgood Marshall:

Are you telling us that the compliant is out of this case?

A. Thomas Hunt:

The pretrial order provides that it is to govern the future proceedings in the case Your Honor.

Thurgood Marshall:

And the answer to my question is, yes or no?

A. Thomas Hunt:

The answer to your question Your Honor is yes.

The pretrial order is to govern the proceedings.

Thurgood Marshall:

The complaint is out?

A. Thomas Hunt:

Now, Your Honor I am not asking this Court —

Thurgood Marshall:

I am not my brother Rehnquist, I just do not want to say that we are being cool now.

A. Thomas Hunt:

Your Honor, I agree that this case — that this Court should not correct the oversight.

I agree that the case should be remanded to the District Court.

Thurgood Marshall:

What if the reason is [Inaudible] part of the [Inaudible] you do not pay any attention to complaints or any other things that would set meats and bounds.

A. Thomas Hunt:

The pretrial order —

Thurgood Marshall:

Is that part of the trouble?

A. Thomas Hunt:

Your Honor, the pretrial order specifically — my recollection is the pretrial order specifically states that it is to set the meats and bounds and the pretrial order includes all the stipulations as to past discrimination and the case was tried.

The District Court specifically based its findings on past discrimination.

Of course, if past applicants were not included in the represented class, the District Court would not have based its decision on past discrimination.

Perhaps, the most important thing that I should say to this Court on the point is that —

William J. Brennan, Jr.:

Excuse me, I worked with the pretrial order.

Is there an express provision that they show – displaced — supersede the pleadings?

A. Thomas Hunt:

Your Honor, I —

William J. Brennan, Jr.:

I do not think that is uncommon in pretrial orders, but this one here?[Inaudible]

A. Thomas Hunt:

Your Honor on page 18, there is a statement of the issues to be tried.

William J. Brennan, Jr.:

I appreciate that, but what I asked is, is there any express provision that the pretrial orders have displaced the pleadings?

A. Thomas Hunt:

As far as I can say right now Your Honor, no except that I would interpret the joint statement of the issues to be tried to supersede the pleadings.

William J. Brennan, Jr.:

I see.

A. Thomas Hunt:

And I would not the very first sentence is whether or not as a question of fact and my defendants have engaged to that past tense.

Potter Stewart:

Mr. Hunt, your argument been interrupted, you and your colleague have used the phrase “the oversight,” I do not know how many times during the course of the this argument, what do you understand the coverage of that phrase to be, the oversight?

A. Thomas Hunt:

Merely that the word past was left out of the definition of the scope of the class.

Potter Stewart:

Where, in the complaint or in the class certification, where?

A. Thomas Hunt:

In the clause certification order that is found in the judgment.

Potter Stewart:

And are we to assume on recall of an oversight, this is something that you said your brother on the other side and you worked this out together that he would freely and quite willingly do and say, oh, yes, this was just an oversight and that the District Court would freely and quite willingly do saying, oh, yes, this was just an oversight.

A. Thomas Hunt:

I think it should be remanded to the District Court to determine that.

Did Mr. Justice White have a question?

Byron R. White:

To say nothing at the Court of Appeal?

Potter Stewart:

Well, I did not understand the answer to mine so far.

A. Thomas Hunt:

I think Your Honor that the question should be remanded to the District Court to determine whether it was an oversight and to straighten out this difficult situation.

William J. Brennan, Jr.:

Well, I notice on paragraph one on page 18, you did not read all the way to its conclusion, whether or not it was a question of fact and law defendants have engaged in employment practices violated so the called as concerns past and present black and Mexican American applicants.

A. Thomas Hunt:

Yes, that is correct.

William J. Brennan, Jr.:

That’s paragraph 5.

A. Thomas Hunt:

Yes, that is correct.

John Paul Stevens:

Isn’t it also true that in paragraph 10 on page 31, the defendants reserved their position that evidence of discrimination before the effective date of Title VII was inadmissible?

Potter Stewart:

Yeah.

A. Thomas Hunt:

Yes, they were arguing the 1981 point.

John Paul Stevens:

So they were apparently not agreeing that past discrimination was relevant or even past applicants?

A. Thomas Hunt:

They were arguing the 1981 point at that point and that is what we have all conceive to be the substantive issue before this Court.

John Paul Stevens:

I notice also that we have talked about monetary relief earlier, there was an agreement that the monetary claims, the claim of back pay, would not be tried and that would not prejudice the right of those, any of those who had back pay claim to assert it elsewhere?

A. Thomas Hunt:

Yes, we were afraid —

John Paul Stevens:

It sounds like the back pay claims were being included in the claim — in the class?

A. Thomas Hunt:

Alright Your Honor, we had determined as best we could that there were statute of limitations problems, not with the equitable relief, but with the monetary relief under 1981.

John Paul Stevens:

But you are careful of preserve the rights of past applicants who might has such claims to litigate the statute limitation questions?

A. Thomas Hunt:

That is correct Your Honor.

We did that because we did not to prejudice someone if we were wrong in our —

John Paul Stevens:

And because apparently none of the named plaintiffs were in that position I suppose?

A. Thomas Hunt:

Not, we were lawyers —

John Paul Stevens:

That adequately demonstrates how there can be a conflict of interest between a named plaintiff who is a current applicant and a member of class who is the past applicant who might have a damage point?

A. Thomas Hunt:

Your Honor, we were doing our best we could for the past applicants.

We determined that their monitory claims were of no value.

We sought injunctive relief on their behalf and we based the relief we sought on the discrimination against them.

I would submit there was no conflict.If they had had valid monetary claims, we would have pursued them.

I think it is important to comeback to the point that and emphasis the point that Mr. Justice Brennan has pointed that the statement of the issues to be tried does concern past applicants.

It is unfortunate, I have been able to reach the 1981 point, I would say only that we believe Johnson v. Railway Express, the thrust of that case is that the plaintiffs should succeeded on that point.

Warren E. Burger:

You have any further Mr. Stewart.

William F. Stewart:

Yes Your Honor.

The plaintiffs have suggested that we are jointly responsible for the oversight, to that I would like to plead not guilty before the United States Supreme Court.

Actually, counsel prepared it and I approved, but the point is and they are not attempting to mislead the counsel any time during the course of the trial, but I raised the standing issue in my answer, which is in the appendix, I raised the standing issue in a motion, in opposition to certification of the class, I raised the standing issue and preserved it in the joint pretrial statement of page A-19.

William J. Brennan, Jr.:

But did you agree with that paragraph one of the pretrial order?

Byron R. White:

You have said, you reserved your position with respect at that time, is that what you said?

William F. Stewart:

Yes, on the pretrial order on page 19, I stated defendants are in no way prejudiced as to their assertion, but this action may not be maintained as the class action.

William J. Brennan, Jr.:

Well, I can get — what about paragraph one, did you agree with that?

William F. Stewart:

Paragraph one was merely a statement as to what they have represented.

William J. Brennan, Jr.:

Was it not a – it says a joint statement of issues to be tried, a joint statements —

William F. Stewart:

Yes, I agree to everything that is in the pretrial order.

William J. Brennan, Jr.:

So you agree to that part of the paragraph one which said that that shall be tried as concerns past and present black and Mexican American applicants?

William F. Stewart:

Reserving my objection that they had no standing to represent those past applicants and —

William J. Brennan, Jr.:

Did you agree to that?

William F. Stewart:

Yes, I did agree to that.

William J. Brennan, Jr.:

Right.

William F. Stewart:

But I have continued throughout this trail including briefs filed with the Ninth Circuit both times, objecting to the standing of the plaintiffs to represent the class and it is not merely a question of pleading, because there is no past applicants that are named defendants in the case.

Byron R. White:

The Court did not manipulate the rules in waiting till a judgment to certify a class either, did they?

Potter Stewart:

No.

William F. Stewart:

Well that is right sure sir.

But we have raised these points continuously and we have continuously lost on all of these points, the 1981 issue, the application of Title VII, the standing issue and everything through with the Ninth Circuit.

We hope that we will not lose the case before this Court.

Well, I think the issues on Section 1981 and the intent are important.

The counsel indicates he would like to matter remanded and that will bring of course the 1981 intent issues to the fore again.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.