t-·( E("' C,_\\./ cL D
18U~ JAN 28 P \2: '3

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

FILED

Plaintiff, TIMOTHY D. POPE,
Intervenor-Plaintiff, JOHNNY REYNOLDS, et aI.,
Intervenor-Plaintiffs,
v.
TOMMY G. FLOWERS, et aI., Defendants.

)

) )

JAN 2 8 2004

)

) )

alA CLERK
U. S. DISTRICT COURT

)

MIDDLE DIST. OF ALA. U

)

)

)

)

)

) CIVIL ACTION NO. CV-68-T-2709-N

)

)

)

)

COMPLAINT AND MOTION TO MODIFY INJUNCTION OF PLAINTIFF-INTERVENOR TIMOTHY D. POPE
Timothy D. Pope, plaintiff-intervenor (hereinafter "Pope"), alleges as follows: 1. This complaint-in-intervention is filed by Timothy D. Pope, pursuant to the Equal Protection Clause ofthe Fourteenth Amendment to the Constitution ofthe United States; 42 U.S.C. § 1983; and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., and its implementing regulations, which prohibit employers from discriminating on the basis of race in employment opportunities. 2. ThisCourthasjurisdiction under 28 U.S.c. §§ 1331, 1243, 1367,2201 and 42 U.S.C. §§ 2000e, et seq.

3. Pope is a non-black employee ofthe Alabama Department ofCorrections (ALDOC)
and has been subjected to unlawful employment practices constituting discrimination on the basis
of race.
4. The original parties to this action are plaintiff United States of America, acting
through its Attorney General and the Alabama State Personnel Board (including individual members)
and the State Departments ofPersonnel, Pensions and Security, Industrial Relations, Public Health,
Education, Mental Health and Civil Defense, along with their respective department heads, as
defendants. See u.s. v. Frazer, infra at 1081.
5. This action was initially brought by the United States to enforce the anti-
discrimination provisions of certain federal funding statutes. The Court entered an injunction
regarding the defendants' employment practices on July 28, 1970. United States v. Frazer, 317 F.
Supp. 1079 (M.D. Ala. 1970) ("the 1970 injunction"). The 1970 injunction prohibited, inter alia,
the bypassing of a higher-ranking available black applicant in favor of a lower-ranking white
applicant, as follows:
2. Negro applicants shall be appointed to positions other than custodial, domestic, laborer or laboratory aide, when said Negro applicants are listed on a Certification of Eligibles, unless higherranking white applicants on the certificate are appointed to fill the vacancy (or all the vacancies) in the listed position, or unless the defendants determine that the Negro applicant is not qualified to perform the duties of the position, or is otherwise not fit for the position.
3. Defendants shall not appoint or offer a position to a lowerranking white applicant on a certificate in preference to a higherranking available Negro applicant, unless the defendants have first contacted and interviewed the higher-ranking Negro applicant and have determined that the Negro applicant cannot perform the functions of the position, is otherwise unfit for it, or is unavailable.
2

to Correctional Officer II and appointing an African-American to the position ofCorrectional Officer II. Race was the sole factor in the selection of the candidate that received the appointment and the decision not to appoint Pope.
9. On or about September 27,2002, Pope met with ALDOC Personnel Director Dora Jackson for clarification ofALDOC's actions and to attempt to resolve the matter informally. Ms. Jackson confirmed that the plaintiff was selected by the interview panel as the most appropriate candidate for the position, but explained that the sole reason for the denial of Pope's appointment was that Pope (a non-black candidate) could not receive the appointment over a black female candidate. Pope then engaged in further discussions with Ms. Jackson and other ALDOC officials to resolve the issue by, inter alia, allowing him a lateral transfer (as a Correctional Officer J) to another ALDOC facility in the greater Birmingham area to alleviate the hardship and expense that he would endure in commuting to and from the Draper facility in Montgomery to his newly established residency in Birmingham. The plaintiffs request for accommodation was denied, and at the time of the filing of this complaint, the plaintiff continues to commute 160 miles per day (round trip) from his residence to the Draper Correctional Facility.
10. Pope sought further clarification ofALDOC's actions by contacting ALDOC' s office of counsel. On December 4,2002, ALDOC General Counsel Andrew W. Redd responded by letter to the plaintiff, stating "[W]arden Price selected you for the promotion and verbally advised you of her decision. The necessary paperwork for this promotion was submitted through Department of Corrections Personnel to State Personnel for approval and processing. State Personnel rejected this promotion because it was not in compliance with the provisions of U.S. v. Frazer, 317 F. Supp.l079 which does not permit the promotion of a lower ranking certified white candidate over a higher
4

ranking black candidate unless all higher ranking black candidates either decline or are ineligible to accept the promotion. A black candidate, who neither declined nor was ineligible was in Band 3. Thus you were precluded from selection, by State Personnel, and a black male in the same band as you was selected for the promotion." The defendants have admitted that Pope's appointment was rescinded solely due to his race. Moreover, it is clear that ALDOC did not appoint a higher ranking black candidate, but rather appointed a black candidate in the same band as Pope, after determining that Pope was the most qualified candidate.
11. On or about October 22, 2002, Pope filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging discrimination on the basis of race and gender. On or about December 4, 2002, Pope received a Right-to-Sue letter under Title VII. See Dismissal and Notice of Rights, dated December 4, 2002. The racial discrimination suffered by Pope was intentional, severe, pervasive, and objectively offensive. Pope has filed a separate discrimination action in this Court.
12. In light ofthis discriminatory treatment and the continuing impact ofthe Frazer nobypass rule on plaintiffs' promotional opportunities, plaintiff-intervenor Pope seeks modification ofthe Frazer injunctions generally, and specifically elimination ofthe racially discriminatory Frazer no-bypass preference. The 1970 and 1976 Frazer injunctions have been in place now for over 30 and 25 years, respectively. Changes in both law and fact during the past three decades require modification ofthese injunctions, and particularly the Frazer no-bypass preference which is patently unconstitutional. I
IBecause the plaintiff-intervenor was not a party (and was not joined in this litigation) when these injunctions were entered, a showing of changed circumstances is not required, and modification can be based on the law and facts as they currently exist "irrespective ofwhether that
5

13. The United States Supreme Court has clarified its strict scrutiny of racial classifications and preferences in a series of decisions including Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), and Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) ("[W]e hold today that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests."). The United States Court of Appeals for the Eleventh Circuit has applied those strictscrutiny principles to institutional reform injunctions in cases including Ensley Branch, NAACP v. Seibels, 31 F.3d 1548 (11 th Cir. 1994). In fact, the Eleventh Circuit in its Ensley Branch decision has already held that Croson and its progeny have "sufficiently altered the legal landscape" so as to warrant Rufo modification ofpre-1989 decrees. See Ensley Branch, 31 F.3d at 1564. These changes and developments in the law governing race-based remedies plainly show that these Frazer injunctions are unconstitutional and that modification is required. The Frazer injunction classifies candidates on the basis of race and, as has happened here, provides and denies hiring and promotional benefits on the basis ofrace. This racial classification (and preference) is not supported by a compelling governmental interest or by a strong evidentiary showing ofongoing discrimination. See Ensley Branch, 31 F.3d at 1564-68. It is not narrowly tailored to end any ongoing discrimination: the Frazer preference has continued now for over 25 years with no fixed duration; it ignores effective race-neutral alternatives (such as the development ofvalid, race-neutral selection procedures); it has no relationship whatsoever with the relevant labor market; and it has severe
law has changed since the [injunction] was entered." See Ensley Branch, 31 F.3d at 1578-79. Even so, the changed circumstances, as set forth in the text, are apparent.
6

impact on the rights of innocent third parties (here, non-black candidates). See id. at 1569. Under Supreme Court and Eleventh Circuit precedent, the Frazer injunctions are plainly unconstitutional.
14. Additionally, the factual circumstances relating to these injunctions and the hiring practices at ALDOC have changed substantially over the past three decades. Most obviously, minority representation in the workforce at ALDOC has changed substantially. There is no longer any factual basis to support the race-based Frazer no-bypass preference under either the compelIinginterest or narrow-tailoring prongs of strict-scrutiny analysis. The Alabama Department of Corrections is fully integrated, and the 1970 and 1976 injunctions no longer serve any remedial purpose. The injunctions, as written and as currently applied by the defendants, constitute an unlawful and unconstitutional race-based policy. The defendants' practices unconstitutionally discriminate against Pope and similarly situated non-black employees ofthe State. The injunction is plainly beyond the scope ofpermissible remedies under Title VII ofthe Civil Rights Act of 1964, the anti-discrimination provisions of the federal funding statutes at issue here, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
15. Application of the Frazer/Ballard no-bypass rule clearly has a continuing adverse effect on the employment interests of Pope, who must continue to compete for promotion subject to this racial preference. His legally protectable interests are not represented by any other party to this litigation. Nor has he been joined to this case pursuant to Section 108 ofthe Civil Rights Act of 1991 or the Federal Rules of Civil Procedure. Accordingly, Pope has sought intervention in this action for the purpose of challenging this unconstitutional, untailored, race-based application ofthe Frazer/Ballard injunction and to move for appropriate modification of those injunctive orders to ensure that they comply with the Constitution. See Martin v. Wilks, 490 U.S. 755 (1989) (holding
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joinder ofnon-black employees appropriate); Ensley Branch, NAA CP v. Seibels, 31 F.3d 1548, 157879 (lith Cir. 1994) (approving intervention of non-black employees to seek consent decree modification).
16. The requirements ofthe Frazer no-bypass rule fail to further the appropriate purpose of the injunction - that is, the elimination of the present effects of past illegal racial discrimination. In the context of a consent injunction, the Eleventh Circuit has noted that a "public employment consent decree's race-conscious provisions are only valid to the extent that they promote the compelling governmental interest, anchored in the Constitution, of ending discrimination." Ensley Branch v. Seibels, 31 F. 3d 1548, 1570 (11 th Cir. 1994). The Ensley Branch court wrote that federal courts "must modify [injunctions] to prevent them from operating unconstitutionally in whole or in part." Id. Such a modification is required here.
17. Accordingly, the plaintiff-intervenor seeks modification of these injunctions and specifically the Frazer no-bypass preference, pursuant to Rule 60(b) and Ru/o v. Inmates o/Suffolk Co. Jail, 502 U.S. 367 (1992).2 The changed circumstances set forth above (both legal and factual) require modification. As explained above, these race-conscious injunctions are unconstitutional, and their continuation is both inequitable and detrimental to the public interest. Under modification and strict-scrutiny precedent, modification is required.
18. This Court should modify and rewrite the injunction to reflect that its true "purpose is to remedy past and present discrimination, not to achieve workplace parity." Ensley Branch, 31 F.3d, 1570-71. "An end to racial discrimination demands the development of valid,
2Alternatively, plaintiff-intervenor asks the Court to terminate the no-bypass provisions of these injunctions pursuant to the standards set forth in United States v. City o/Montgomery, 948 F. Supp. 1553, 1563 (M.D. Ala. 1996).
8

nondiscriminatory selection procedures to replace race-conscious selection procedures." Id. at 1571. This Court should modify the injunction by vacating the no-bypass rule and other race-based requirements and/or alternatively ordering the defendants to implement lawful race-neutral selection procedures. See id. "The failure ofthe [injunction] to force the [defendants] to develop race-neutral selection procedures that are fair to blacks and whites has caused both to suffer the effects of discrimination." Id. at 1572.
19. The defendants' continued implementation ofthe Frazer no-bypass rule violates the Equal Protection Clause ofthe Fourteenth Amendment to the Constitution ofthe United States and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., and its implementing regulations.
20. Unless enjoined by this Court, the defendants will continue to violate the Fourteenth Amendment and Title VII of the Civil Rights Act of 1964.
Wherefore, the proposed plaintiff-intervenor respectfully requests that this Court: a. Declare that defendants have denied the plaintiff-intervenor and similarly situated persons the equal protection of the laws in violation of the Fourteenth Amendment; b. Declare that defendants have discriminated on the basis ofrace by failing to address, prevent, and remedy racial discrimination, and in so doing failed to provide the benefits of raceneutral employment procedures to the plaintiff-intervenor, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.c. §§ 2000e, et seq., and its implementing regulations; c. Permanently enjoin defendants, their officers, agents, employees, successors, assigns, and all persons in active concert or participation with them, from all unlawful discrimination against the plaintiff-intervenor on the basis of race;
9

d. Vacate the race-conscious provisions ofthe 1970 and 1976 injunctions including the

Frazer no-bypass rule and order the defendants to develop validated job-related race-neutral

selection procedures forthwith;

e. Order defendants to provide such relief as is necessary to compensate the plaintiff-

intervenor for the discrimination to which he was subjected;

f.

Grant the plaintiff-intervenor an award ofall costs and expenses including an award

of reasonable attorney's fees, and;

g. Grant other such relief as may be appropriate.

Respectfully submitted,

O/Counsel FITZPATRICK, COOPER & CLARK, LLP
Farley Building, Suite 600 1929 Third Avenue North Birmingham, Alabama 35203 Phone: (205) 320-2255 Fax: (205) 320-7444

Ra ond P itzpatrick, Jr. (FIT001) R. Scott Clark (CLA061) J. Michael Cooper (C00037) Gary L. Brown (BRO186)
Attorneys for Plaintiff-Intervenor Timothy D. Pope

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CERTIFICATE OF SERVICE

I hereby certify that I have on this 27th day ofJanuary 2004, served the above and foregoing pleading, by placing a copy of the same in the United States Mail, properly addressed and postage prepaid, upon the following counsel:

Ralph F. Boyd, Jr., Esq. U.S. Department of Justice Civil Rights Division P.O. Box 65968 Washington, DC 20035-5968
Jay D. Adelstein, Esq. U.S. Department of Justice, Civil Rights Division Employment Litigation Section - PHB 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530
Hon. William H. Pryor, Jr.
Attorney General of the State of Alabama State Capitol 600 Dexter Avenue Montgomery, Alabama 36130
Lisa W. Borden, Esq. Berkowitz, Letkovitz, Isom & Kushner, P.C.
1600 SouthTrust Tower, 420 20th st. N.
Birmingham, Alabama 35203
Robert L. Wiggins, Esq. Robert F. Childs Jr., Esq. Ann K. Wiggins, Esq. Wiggins, Childs, Quinn & Pantazis, P.C. 1400 SouthTrust Tower, 420 20th Street North Birmingham, Alabama 35203
Alice Ann Byrne, Esq. State Personnel Department 64 North Union Street Montgomery, Alabama 36130

T. Dwight Sloan, Esq. Balch & Bingham, LLP P.O. Box 306 Birmingham, Alabama 35201
William F. Gardner, Esq. Cabaniss Johnston Gardner Dumas & O'Neal 2001 Park Place North, Suite 700 Birmingham, Alabama 35203
Andrew P. Campbell, Esq. Campbell, Waller & Poer, LLC 2100-A Southbridge Parkway, Suite 450 Birmingham, Alabama 35209
Troy King, Esq. Office of Legal Advisor Governor's Office 600 Dexter Avenue Montgomery, Alabama 36130
David M. Smith, Esq. Warren B. Lightfoot Jr., Esq. Maynard, Cooper & Gale, P.C. 1901 Sixth Avenue North Birmingham, Alabama 35203
Henry C. Barnett, Esq. Christopher W. Weller, Esq. Capell, Howard, Knabe & Cobbs, P.A. 57 Adams Avenue P.O. Box 2069 Montgomery, Alabama 36102-2609

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David R. Boyd, Esq. J. Donnan Walker Jr., Esq. Balch & Bingham, LLP P.O. Box 78 Montgomery, Alabama 36101-0078 Robbie Hyde, Esq. Webb & Eley, P.e. 166 Commerce Street, Suite 300 Post office Box 238 Montgomery, Alabama 36101-0238 William J. Huntley Jr., Esq. Huntley & Associates, P.e. P.O. Box 370 Mobile, Alabama 36601 Beverly P. Baker, Esq. Miller, Hamilton, Snider & adorn, LLC 2501 20th Place South, Suite 450 Binningham, Alabama 35223 Susan B. Anderson, Esq. 770 Washington Avenue, Suite 570 Montgomery, Alabama 35130
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 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
FILED

IN RE: EMPLOYMENT

)

DISCRIMINATION LITIGATION

)

AGAINST THE STATE OF ALABAMA, )

et ale

)

)

EUGENE CRUM, JR., et al.,

)

)

Plaintiffs,

)

)

v.

)

)

STATE OF ALABAMA, et al., )

)

Defendants.

)

)

)

UNITED STATES OF AMERICA,

)

)

Plaintiff,

)

)

TIMOTHY D. POPE,

)

)

Intervenor-Plaintiff,

)

)

JOHNNY REYNOLDS, et al.,

)

)

Intervenor-Plaintiffs, )

)

EUGENE CRUM, JR., et al.,

)

)

Intervenor-Plaintiffs, )

)

v.

)

)

TOMMY G. FLOWERS, et al.,

)

)

Defendants.

)

)

FEB 2 6 2004
l CLERK
U. S. DISTRICT COURTJ MIDDLE DIS! OF ALA.
CIV. ACTION NO. 94-T-356-N
CIV. ACTION NO. 68-T-2709-N ~

ALABAMA STATE CONFERENCE

)

OF NAACP BRANCHES,

)

)

Amicus Curiae.

)

ORDER

These cases are currently before the court on the Crum

plaintiffs' motion for Rule 54(b) judgment, or, in the

alternative, motion for certification pursuant to 28 U.S.C.A.

§ 1292(b) (Flowers doc. no. 643, Crum doc. no. 641), of two of

the court's orders. In the first order the Crum plaintiffs

seek to appeal, the court dismissed the plaintiffs' Flowers

claims without prejudice to the rights of an appropriate

person or party to file motions for contempt (Crum doc. no.

416) ("the dismissal order"). In the second order, the court

denied the Crum plaintiffs' motion for civil contempt based on

alleged violations of the Flowers injunction.

In re

Employment Discrimination Litigation Against State of Alabama,

213 F.R.D. 592, 600 (M.D. Ala. 2003) (Flowers doc. no. 616,

Crum doc. no. 610) ("the contempt order"). The court will

deny the plaintiffs' Rule 54(b) motion for judgment for both

orders, but for the reasons given below, will grant the motion

2

for certification of both orders pursuant to 28 U.S.C.A. § 1292 (b) .
The Crum plaintiffs filed this lawsuit in 1994 alleging, among other things, several claims based on the injunction issued in the Flowers case. In an order entered on September 17,1997 (Flowers doc. no. 514, Crum doc. no. 307), this court consolidated the Crum litigation with the Flowers litigation to the extent that there were issues common to both. Subsequently, in the dismissal order, the court dismissed the Flowers claims that the Crum plaintiffs asserted, on the grounds that the proper way to enforce an injunction is through contempt proceedings. See, e.g., Florida Ass'n for Retarded Citizens v. Bush, 246 F.3d 1296, 1298 (11th Cir. 2001); Reynolds v. Roberts, 207 F.3d 1288, 1298 (11th Cir. 2000) . Following the dismissal of the Flowers claims, the Crum plaintiffs moved for civil contempt for alleged violations of the Flowers injunction. The court denied that motion in a short order entered on June 19, 2001 (Flowers doc. no. 593, Crum doc. no. 465), which was followed by the contempt order at issue here (Flowers doc. no. 616, Crum doc. no. 610), which denied the plaintiffs' motion to alter, amend,
3

or reconsider, and provided a full explanation for the court's earlier order that the Crum plaintiffs could not proceed against the Crum defendants for civil contempt.
As a result of the court's legal rulings dismissing the Flowers claims in Crum, and denying the Crum plaintiffs' motion for contempt, the Crum lawsuit has been considerably narrowed, and is closer to resolution. However, the court recognizes that the contempt order was entered without the benefit of any Eleventh Circuit or other "judicial decision that [had] construed the rule" underlying the motion. In re Employment Discrimination Litigation Against State of Alabama, 213 F.R.D. 592, 600 (M.D. Ala. 2003). Further, the rule the court was required to interpret was "ambiguous" and there was no clear authority supporting or rejecting the plaintiffs' arguments. Id. at 601. Therefore, the court finds that substantial grounds exist for differences of opinion on this ruling. Additionally, because the contempt order was closely related to the dismissal order dismissing the Flowers complaints from the Crum lawsuit, the court finds that the dismissal order is also deserving of certification. That is, unless the court's ruling that the Flowers claims were due to
4

be dismissed from the Crum lawsuit is correct, there is no point in deciding whether its ruling denying the contempt motion was proper.
If the Eleventh Circuit finds that this court erred in entering either the dismissal order or the contempt order, it is best that this be known as soon as possible so that the court and the parties can avoid further waste of time and resources; or, to put it another way, if the court is mistaken in its legal rulings, and the mistake is not corrected until much later than it could have been, this litigation will have been prolonged even longer than necessary.
Accordingly, it is ORDERED as follows: (1) The plaintiffs' motion for Rule 54(b) judgment, or in the alternative, motion for certification pursuant to 28 U.S.C.A. § 1292(b), filed June 5, 2003 (Flowers doc. no. 643, Crum doc. no. 641), is granted to the extent that the court's order filed April 5, 2001, dismissing the Frazer claims from the Crum litigation (Crum doc. no. 416), and the court's order filed March 28, 2003, denying the Crum plaintiffs' motion for contempt (Flowers doc. no. 616, Crum doc. no. 610) are certified for appeal.
5

(2) Said orders (Crum doc. no. 416; Flowers doc. no. 616, Crum doc. no. 610) are amended to reflect the following additional findings: this order involves a controlling question of law as to which there is substantial grounds for difference of opinion, and an immediate appeal from the order may materially advance the ultimate termination of the litigation.
The motion is denied in all other respects. DONE, this the Lhnr day of February, 2004.
~r'~fYR'MO~·NorH'L. -T=H=O=M=P=S=ON======------
UNITED STATES DISTRICT JUDGE

 
 IN iHE UNiiED~'STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA lGO!~ ~lf<.R I '( l'f~R~p~~ DNISION

UNITED STATES OF AMERICA,

)

t L:

'.'

Plaintiffs,

i.

)

TIMOTHY D. POPE,

)

Intervenor-Plaintiff,

)

JOHNNY REYNOLDS, et aI.,

)

FILED
MAR J 2 2004
CLERK U. S. DISTRICT COURT MIDDLE DIST. OF ALA.!

Intervenor-Plaintiffs,

)

EUGENE CRUM, et aI.,

)

Intervenor-Plaintiffs,

)

v.

) CIY. ACTION NO. 68-T-2709-N

JUDGE MYRON H. THOMPSON

THOMAS G. FLOWERS, et aI.,

)

Defendants.

)

ALABAMA STATE CONFERENCE OF NAACP ) BRANCHES,

Amicus Curiae

)

COMPLAINT-IN-INTERVENTION OF EUGENE CRUM, ET AL.

Pursuant to the Order entered in this action February 26, 2004 granting intervention to

Eugene Crum, et al. [Doc nos. 638, 661], the following complaint-in-intervention is filed on behalf

of: Eugene Crum, Sylvia S. Adams, Charles E. Archie, Jr., Carolyn Ball, Carol Banks, David Barley,

John Bradford, Milton Burton, Pauline Burton, Dorothy C. Carson, Lynn Carter, Clyde Chatman,

Charles Chinakwe, Presley W. Coleman, Geneice Smith Crayton, Betty Crum, Grant DeWayne

1

Culliver, Jerome Dangerfield, Velma Easterling, Venus Edwards, Mable Elliott, Cornell Ellis, Glenda Elston, Cecil Fagg, Audrey D. Finch, Samuel Foster, Terry D. Goodson, Katherine GrayArmster, Brenda Dianne Green, Ricky Grider, Romanza Hamilton, Vivian Handy, Willie Harris, Roy Hightower, Michael Hopkins, Rodney Huntley, Brenda J. Irby, Jacquelyn Jackson-Kelly,Yvonne Jennings, Gladys D. Jones, Theodore Jones,Willie N. Kelly, Deborah Lumpkin, Eddie McCoy, Franklin McMillion, Sr., Kathy Mathews, Roosevelt Mays, Alva Moore, Annie Moore, Wilson Morgan, Benny Newton, Herman Powell, Samuel Price, Laneeta Roberts, Shelia Russell, Layan Said, Annie F. Smith, Robert L. Smith, Lee M. Taylor, Robert Taylor ill, Earl Vaughn, Carrie Warren, Marie Wilson, Tamblyn Witherspoon, Darrell B. Wright, Earnest Wright, and the class they represent defined in their motion to intervene, this complaint-in-intervention and in In Re Employment Discrimination Litigation Against State OfAlabama, CV#94-T-356-N. ["Crum" or "plaintiff-intervenors" hereafter].
1. This complaint-in-intervention is filed pursuant to the Equal Protection Clause ofthe Fourteenth Amendment to the Constitution ofthe United States; 42 U.S.c. §§ 1981 and 1983; Title VII ofthe Civil Rights Act of 1964,42 U.S.C. §§ 2000(e), et seq., and its implementing regulations, which prohibit employers from discriminating on the basis ofrace in employment opportunities; and the injunctions and decrees heretofore entered in this action which found defendants to have engaged in a pattern and practice of racial discrimination against African-Americans and enjoined acts or omissions having the purpose or effect ofperpetuating such discrimination. The plaintiff-intervenors are African-American applicants, potential applicants and/or employees ofthe defendants who are among the African-American employees and applicants that the decrees and injunctions entered in this case were meant to protect.
2

2. This Court has jurisdiction under 28 U.S.C. §§ 1331,1243,1367,2201 and 42 U.S.c. §§ 2000(e), et seq.
3. Sylvia S. Adams is an African American employee of the Alabama Department of Finance and has been employed by the State of Alabama since 1993. She is a Security Systems Operator.
4. Charles E. Archie, Jr. is African American. He was an employee of the Alabama State Port Authority (Docks) from 1990 to 1999 at which time he was laid off. He was a Buyer II at the time of his layoff.
5. Carolyn Ball is an African American employee of the Alabama Department of Tourism and Travel where she holds the position of Tourist Promotion Representative I. She has been employed by the State of Alabama since 1979.
6. Carol Banks is an African American employee of the Alabama Medicaid Services Administration. She has been employed by the State ofAlabama since 1978, initially as a temporary claims clerk at the Department of Industrial Relations. On November 26, 1980, she was hired on a permanent basis by the Department of Industrial Relations. In June 1991, Banks transferred back to Medicaid where she holds the position of Employee Services Representative.
7. David Barley is an African American employee ofthe Department ofEconomic and Community Affairs. He has been employed with the State of Alabama since1977. He currently holds the position of Planning and Economic Development Specialist IV.
8. Johnny L. Bradford is an African American employee of the Alabama Department of Human Resources and has been employed with the State of Alabama since 1977. He currently holds the position of Public Information Specialist II.
3

9. Milton Burton is an African American employee of the Alabama Department of Corrections where he holds the position of Correctional Officer I. He has been employed by the State of Alabama since 1988.
10. Pauline Burton is African American. She was an employee of the Alabama Department of Corrections where she held the position of Correctional Officer I at the time of her termination in 1992. She began working for the State of Alabama in 1986.
11. Dorothy C. Carson is an African American employee ofthe Alabama Department of Human Resources. Carson was initially employed by the Alabama Department ofMental Health in 1976 and began working at the Department of Human Resources in 1977. She currently holds the position of Welfare Administrator IV.
12. Lynn Carter is an African American male who has been employed by the Alabama Department of Corrections from 1991 to the present. He was laid off in April 1992 and was rehired in October 1992. He currently holds the position ofCorrecitonal Officer I.
13. Clyde Chatman is African American. He was employed by the State ofAlabama in the Department of Economic and Community Affairs and the Department of Conservation from April 1976 until his retirement in April 2002. At his retirement, he held the position ofPlanning and Economic Development Specialist III.
14. Charles Chinakwe is an African American employee ofthe Alabama Department of Agriculture and has been employed with the State of Alabama since 1989. He currently holds the position of Chemist II.
15. Presley W. Coleman is an African American. He was employed by the Alabama Department of Corrections from 1987 to 1994 when he resigned. At the time of his resignation, he
4

held the position of Correctional Officer I. 16. Geneice Smith Crayton is an African American employee ofthe Alabama Department
ofCorrections. She began working for the State ofAlabama in 1991. She was laid offin April 1992 and was rehired in October 1992. She currently holds the position of Correctional Officer I.
17. Betty Crum is an African American employee of the Alabama Department of Economic and Community Affairs. She has been employed with the State of Alabama since 1977 and currently holds the position of Accountant III.
18. Eugene Crum is an African American. He was employed by the Alabama Department ofMental Health and the Alabama Development Office from February 6, 1984, until his termination in July 2000. At the time of his termination, he held the position of Economic Development Division Director.
19. Grant DeWayne Culliver is an African American employee of the Alabama Department ofCorrections. He began working for the State ofAlabama in 1981. He currently holds the position of Correctional Warden III.
20. Jerome Dangerfield is an African American employee ofthe Alabama Department of Revenue and has been employed with the State of Alabama sincel983. He currently holds the position of Revenue Special Agent II.
21. Velma Easterling is an African American employee of the Alabama Crime Victims Compensation Commission where she holds the position ofCrime Victims Compensation Specialist. She began working for the State of Alabama in 1972 for the Alabama Public Library Service. In 1990, she began working for the Crime Victims Compensation Commission.
22. Venus Edwards is an African American. She was an employee of the Alabama
5

Department ofMental Health and Retardation where she held the position ofHabilitation Treatment Specialist I at the time of her retirement in 2000. She began working for the State of Alabama in 1990.
23. Mable Elliott is an African American employee of the Alabama Department of Revenue where she has worked since 2001. She began working for the State of Alabama in 1978 in the Alabama Medicaid Services Administration. She resigned in March 1989 and was rehired in December 1990. She currently holds the position of Administrative Support Assistant II.
24. Cornell Ellis is an African American. In 1990, he applied for the following positions with the State of Alabama, but was not hired: County Welfare Director II, Vocational Education Specialist I, Revenue Research Analyst, Welfare Administrator II, Public Information Manager, Human Services Program Specialist Supervisor, Social Worker I, Welfare Supervisor I.
25. Glenda Elston is an African American. She was employed by the Alabama Department of Human Resources at the time of her retirement in 2000. She began working for the State of Alabama in 1997 and held the position of Human Resources Service Supervisor when she retired.
26. Cecil Fagg is an African American employee ofthe Alabama Department ofIndustrial Relations. He began working for the Alabama Department of Finance in 1978 and worked there until 1988 when he transferred to the Department of Industrial Relations. He currently holds the position of Department Procurement Officer II.
27. Audrey D. Finch is an African American. She was employed by the Alabama Department ofMental Health and Retardation from 1986 until her layoff in 1996. From 1986 until 1991, she held the position of Mental Health Worker. From 1991 until her layoff, Ms. Finch held
6

the position of Habilitation Treatment Specialist I. 28. Samuel Foster is an African American employee of the Alabama Department of
Corrections where he holds the position of Correctional Officer I. He began working for the State of Alabama in 1984.
29. Terry D. Goodson is an African American. In 1993 he applied for the following positions with the State of Alabama but was not hired: Laboratory Technician I, Engineering Assistant III, Engineering Assistant I, Programmer I, Programmer Analyst I. In 1994 he applied for the following positions with the State ofAlabama but was not hired: Box and Carton Manufacturing Plant Manager, General Services Supervisor.
30. Katherine Gray-Armster is an African American who was employed by the Alabama Department of Education from March 24, 1993 to September 9, 1993. She was a Clerk Typist I at the time of her termination.
31. Brenda Dianne Green is an African American employee ofthe Alabama Department of Human Resources and has been employed with the State of Alabama since 1977. She currently holds the position of Human Resources Program Supervisor.
32. Ricky Grider is an African American. He was employed by the Alabama Department of Corrections from 1984 until his termination in 1994. At the time of his termination, he held the position of Correctional Officer I.
33. Romanza Hamilton is an African American. She was employed by the Alabama Department of Revenue as a clerical aide in 1990 when she was terminated because her temporary appointment ended. She began working for the Alabama Department of Corrections in 1982 where she worked until 1984 when she transferred to the Department of Revenue.
7

34. Vivian Handy is an African American employee of the Alabama Department of Transportation. She began working for the State of Alabama in 1985 in the Department ofHuman Resources. She transferred to the State Personnel Department in 1995 and to the Department of Transportation in 1997. She currently holds the position of Department Personnel Manager I.
35. Willie C. Harris is an African American employee of the Alabama Department of Corrections. He began working for the State of Alabama in 1998 and currently holds the position of Correctional Officer I.
36. Roy Hightower is an African American employee of the Alabama Department of Corrections. He began working for the State of Alabama in 1973 and currently holds the positions of Correctional Institutional Co-ordinator.
37. Michael Hopkins is an African American employee of the Alabama Department of Corrections. He began working for the State of Alabama in 1983 in the Department of Mental Health and transferred to the Department ofCorrections in 1985. He resigned in 1998 at which time he held the position of Correctional Officer II.
38. Rodney Huntley is an African American employee of the State of Alabama Department of Corrections and has been employed with the State ofAlabama since 1983. He holds the position Correctional Warden II.
39. Brenda J. Irby is an African American. She began working for the State ofAlabama in 1976 and worked for the Department of Public Health when she retired in 2001. At the time of her retirement she held the position ofAdministrative Support Assistant II. During her employment with the State of Alabama, she also worked for the Department of Education, the Department of Human Resources and the Department of Industrial Relations.
8

40. Jacquelyn Jackson-Kelly an African American. She was initially employed by the State of Alabama in 1970 when she was hired as a Steno I with the Department of Pensions and Security which is now the Department of Human Resources. She held this same job classification with the Rehabilitation and Crippled Children's Service and the Medicaid Agency during the 1970's. She later worked for the Revenue Department, the Securities Commission, and the Insurance Department, where she last worked in 1997.
41. Yvonne Jennings is an African American. She was employed by the State of Alabama beginning in 1983 and worked in the Department of Education, the Department of Revenue, the Department of Transportation and the Department of Corrections. She resigned in 2002 at which time she held the position of Administrative Support Assistant I.
42. Gladys D. Jones is an African American. She was employed by the Alabama Department of Education from 1976 to 1997 when she retired. At the time of her retirement, she held the position of clerk.
43. Theodore Jones is an African American employee of the Alabama Department of Economic and Community Affairs. He began working for the State of Alabama in 1969 and currently holds the position of Planning and Economic Development Specialist 1111.
44. Willie N. Kelly is an African American. He was employed by the Alabama Department of Corrections from 1984 to 1993 when he was terminated. At the time of his termination, he held the position of Correctional Officer Superintendent I.
45. Deborah Lumpkin is an African American. She was employed by the Alabama Department of Revenue from 1985 to 1996 when she resigned. At the time of her resignation, she was a Correctional Officer Supervisor I.
9

46. Eddie McCoy is an African American employee of the Alabama Department of Revenue and has been employed with the State of Alabama since 1984. He currently holds the position of Revenue Compliance Officer.
47. Franklin McMillion, Sr. is an African American employee of the Alabama Department ofRevenue and has been employed with the State ofAlabama since 1985. He currently holds the position of Revenue Compliance Officer.
48. Kathy Matthews is an African American employee ofthe Alabama Department of Economic and Community Affairs and has been employed with the State of Alabama since 1986.
49. Roosevelt Mays is an African American employee of the Alabama Department of Revenue and has been with the State of Alabama since 1977. He currently holds the position of clerk.
50. Alva Moore is an African American employee of the Alabama Department of Industrial Relations. He began working for the State of Alabama in 1978 and currently holds the position of Employment Security Representative.
51. Annie N. Moore is an African American. In 1993 she applied for the following positions with the State ofAlabama but was not hired: Mental Health Worker I, Correctional Officer Trainee.
52. Wilson Morgan is an African American employee of the Alabama Department of Human Resources and has been employed with the State ofAlabama since 1974. He currently holds the position of Senior Social Work Supervisor.
53. Benny Newton is an African American employee of the Alabama Department of Conservation. He began working for the State ofAlabama in 1989 and currently holds the position
10

of Senior IT Systems Specialist. 54. Herman Powell is an African American employee of the Alabama Department of
Economic and Community Affairs. He began working for the State of Alabama in 1979. He currently holds the position of Warehouse Superintendent.
55. Samuel Price is an African American employee of the Alabama Alcohol Beverage Control Board. He began working for the State ofAlabama in1981 and currently holds the position of District Supervisor for Enforcement.
56. Laneeta Roberts is an African American employee of the Alabama Public Service Commission. She began working for the State ofAlabama in 1981 and currently holds the position of Public Utilities Analyst.
57. Shelia Russell is an African American employee of the Alabama Department of Mental Health. She began working for the State ofAlabama in 1980 and currently holds the position of Administrative Support Assistant I.
58. Layan Said is an African American. He was an employee ofthe Alabama Department of Agriculture and Industries. He began working for the State of Alabama in 1983 and resigned in 1995. At the time of his resignation he held the position of Pesticide Administrator.
59. Annie F. Smith is an African American employee of the Alabama Department of Rehabilitation Services. She began working for the State of Alabama in 1983 and currently holds the position of Accountant I. She has also worked for the Department of Revenue and the Department of Economics and Community Affairs.
60. Robert L. Smith is an African American employee of the Alabama Department of Conservation. He began working for the State ofAlabama in 1987 and currently holds the position
11

of Administrative Analyst I. 61. Lee M. Taylor is an African American. He was an employee of the Alabama
Department of Public Health. He worked for the State of Alabama from 1973 until he retired in 1998. At the time ofhis retirement, he held the position ofPublic Health Senior Environmentalist.
62. Robert Taylor ill is an African American employee of the Alabama Public Service Commission. He began working for the State of Alabama in 1986 and currently holds the position of Public Utilities Analyst
63. Earl Vaughn is a African American. He is a former employee of the Alabama Department ofAgriculture. He was employed with the Department ofAgriculture from 1987 until he retired in 1998. At the time of his retirement, he held the position of electrician.
64. Carrie Warren is an African American employee of the Alabama Public Health Department and has been employed with the State ofAlabama since 1989. She currently holds the position of Public Health Senior Environmentalist.
65. Marie Wilson is an African American. She was an employee ofthe State ofAlabama from 1989 to 2002 when she resigned. During her employment she worked in the Department of Mental Health, the Alcohol Beverage Control Board, the Department of Public Health and the Department of Industrial Relations. At the time of her resignation, she held the position of Employment Security Representative.
66. Tamblyn Witherspoon is an African American. She worked from the Alabama Department ofCorrections from 1988 until her termination in 1993. At the time ofher termination, she held the position of Correctional Officer I.
67. Darrell B. Wright is an African American employee ofthe Alabama Department of
12

Mental Health. He began his employment with the State of Alabama in 1982. He currently holds the position of Mental Health Worker I.
68. Earnest Wright is an African American employee ofthe Department of Corrections. He worked for the State of Alabama from 1986 until his termination in 1994. At the time of his termination, he held the position of Correctional Officer I.
69. Each ofthe foregoing plaintiff-intervenors incorporate their prior facts and allegations set forth in In Re Employment Discrimination Litigation Against The State ofAlabama, CV#94-T356-N, as part ofthe current complaint-in-intervention.
70. The plaintiff-intervenors bring this complaint-in-intervention on their own behalfand on behalf of the class incorporated in the motion to intervene granted by the Court on February 26, 2004. Flowers Docs. 638, 661. Such class consists of all African-Americans who: (1) applied for employment opportunities covered by the prior decrees and injunctions in this case; or (2) would have applied for such opportunities in the absence ofthe wrongs found and enjoined in this action and/or alleged in this complaint-in-intervention; or (3) are employed by the defendants, or were formerly employed by them during the period since the decrees and injunctions in this case were entered.
71. The prior decrees in this case found and enjoined a pervasive pattern and practice of racial discrimination in hiring, training, promotions, and other employment opportunities by the State Personnel Department and the various departments and agencies of the State of Alabama. Flowers Doc. 65 (reported at 317 F. Supp. at 1079); Flowers Docs. 141, 142 (reported at 1976 WL 729). The Court found that racial discrimination "has so permeated the employment practices ofthe defendants that it [is] necessary to enter a detailed and specific decree which will not only prohibit
13

discrimination in the future but which will also prescribe procedures designed to prevent discrimination in the future and to correct the effects of past discrimination." Flowers Doc. 65 (reported at 317 F. Supp. 1079 (M.D. Ala. 1970)) (emphasis added). Such decree required, among other things: (I) that black eligibles not be passed over by lower ranked white eligibles "unless the defendants have first contacted and interviewed the higher-ranking Negro applicant" and have "documentary evidence" that such applicant "cannot perform the functions of the position, is otherwise unfit for it, or is unavailable" [hereinafter "no bypass injunction"]; (2) that Certificates of Eligibles "shall not be canceled or returned with vacancies unfilled unless each Negro applicant is appointed or is found to be unavailable or unqualified"; (3) that "[d]ocumentary evidence shall be maintained ... that will sustain the finding ofunavailability or lack ofqualifications"; (4) that black applicants be notified of which position they were considered for and the action taken on their application; (5) that "defendants shall assign employees on the basis oftheir training and ability" and "shall not be assigned to serve ... predominantly Negro clientele"; and (6) that defendants "shall . . . implement a program of recruitment and advertising which will fully advise the Negro citizens of . . . Alabama of the employment opportunities available to them with the State . . . agencies." Frazer, 317 F. Supp. at 1090-1093.
72. This Court "permanently enjoined the defendants from the foregoing practices and "from encouraging in any employment practices, including recruitment, examination, appointment, training, promotion, retention, or any other personnel action, for the purpose or with the effect of discriminating against any employee, or actual or potential applicant, on the ground ofrace or color." Frazer, 317 F.Supp. at 1090 (Flowers doc. 65).
Pursuant to the findings of fact and conclusions of law made and
14

entered in this case this date, it is the order, judgment and decree of this Court:
I. That the defendants, . .. their agents, officers, successors in office, employees and all persons acting in concert or participation with them, be and they are hereby permanently enjoined from engaging in any employment practices, including recruitment, examination, appointment, training, promotion, retention, or any other personnel action, for the purpose or with the effect of discriminating against any employee, or actual or potential applicant for employment, on the ground of race or color.
Frazer, 317 F. Supp. at 1090 (Flowers Doc. 65). Such pattern and practice has never been found
to have been remedied and the resulting injunction remains in force today. The current plaintiff-
intervenors are the African-American employees, applicants and potential applicants: (1) who such
injunction was entered to benefit and protect; and (2) who seek to compete for such employment
opportunities on the basis ofthe terms laid down in this Court's prior decrees and injunctions. Such
persons include the class ofpersons covered by the motion to intervene granted in this action (Frazer
docs. 638,661), to-wit: all African-Americans who are or were employed by the defendants, or who
applied, would have applied, or were otherwise injured by the practices found or enjoined in the prior
decrees and injunctions in this case.
73. Defendants have not complied with the foregoing injunctive requirements, have not
eliminated the vestiges of the prior racial discrimination found and enjoined in this case, and have
continued to discriminate on the basis ofrace in the various ways that such injunction was intended
to prohibit.
74. Two of the principal means of undoing the vestiges of defendants' past racial
discrimination and preventing further discrimination were: (1) the no-bypass injunction previously
entered in this case; and (2) the injunction against examinations and other selection procedures that
15

have not been shown to be valid pursuant to the guidelines of the United States Department of
Justice and other federal agencies charged with enforcing Title vn ofthe Civil Rights Act of 1964.
The pattern and practice of racial discrimination already found by this Court included "the State's use ofwritten tests which have an adverse racial impact" and cause black applicants to be "clustered at the bottom ofthe employment registers." Frazer, 1976 WL 729 at *3. Defendants were enjoined not to use examinations for ranking purposes unless they were shown to be valid under the federal guidelines requiring such examinations to "differentiate among levels of job performance" and demonstrate that "a higher score ... is likely to result in better job performance." 29 C.F.R. § 14C(9); see also Frazer, 1976 WL 729 at *7, ~10 ("No written test shall be used as a ranking device, unless and until it has been validated in accordance with the Guidelines On Employee Selection Procedures ... 29 C.F.R. § 1607 et seq. ..."). The ranking provision of the Uniform Guidelines on Employee Selection Procedures reads as follows:
(9) Ranking based on content validity studies. If a user can show, by a job analysis or otherwise, that a higher score on a content valid selection procedure is likely to result in betterjob performance, the results may be used to rank persons who score above minimum levels. Where a selection procedure supported solely or primarily by content validity is used to rank job candidates, the selection procedure should measure those aspects ofperformance which differentiate among levels ofjob performance. 29 C.F.R. §1607.14C(9). The prior decrees and injunctions in this case require both that examination scores be shown to distinguish better performance and qualifications and that such better performers not be bypassed by persons with lower scores. Defendants have not complied with such requirements ofthe decrees and injunctions entered in this case and have disproportionately refused to include qualified African-American eligibles on certificates of eligibles based on invalid examination rankings that do not differentiate between applicants on the basis of performance or
16

merit. Compliance with the examination provisions ofthe Court's prior decrees and injunctions in this case would have provided defendants a valid basis for selecting from certificates ofeligibles on the basis of merit-based rankings consistent with the no-bypass injunction, rather than subjective opinions of relative qualifications or merit. The no-bypass injunction is based on the requirement that defendants develop valid examinations having scores that distinguish between applicants who are likely to be better performers on the job. The no-bypass paragraph of that injunction is an integral part of the remedies necessary to eliminate the vestiges of defendants' past racial discrimination and to prevent further discrimination. Rather than terminating the no-bypass injunction, it should be enforced by requiring the defendants to comply with the validation requirements of the prior decrees and injunctions in this action.
75. The no-bypass injunction also reduces the discriminatory effect of the overall selection process which is an important part ofthe Uniform Guidelines incorporated in the Frazer injunction. 29 C.F.R. § 1607.3B (requiring use of alternative "which has as little adverse impact as possible"). Examination scores continue to be severely discriminatory in eliminating AfricanAmericans who passed the test from certificates-of-eligibles, but such effect is mitigated to some degree by the no-bypass injunction by requiring that examination scores be respected in making appointments in the same way as in forming certificates of eligibles.
76. Defendants have also continued the following practices which were declared discriminatory and enjoined in the prior decrees ofthis case: (1) "[e]xamination for many classified positions are conducted on a non-continuous basis, i.e., a register is established at a given time, and no one is added to the register until it is depleted and another examination is given" so that "[0]ften registers will remain 'closed' in this fashion for over two years;" (2) "avoid[ing] compliance with
17

the decrees in this case by examining job registers" and "requesting certificates of eligibility only
at times when no blacks were available for certification;" and (3) administering written tests and
other selection criteria which "screen[ ] out disproportionate numbers ofblack applicants" and that
"cluster[ ] [them] at the bottom of the employment registers where they were less likely to be
selected" without any showing that such criteria is "significantlyrelated to job performance." Frazer,
12976 WL 729. The Court declared that "[i]t is evident from the findings hereinabove made that
the ... defendants are engaged in a pattern and practice of racial discrimination in employment."
Frazer, 1976 WL 729 at *6.
77. The district court "permanently enjoined" the defendants from the foregoing practices
and "from engaging in any employment practices . . . for the purpose or with the effect of
discriminating ... on the ground ofrace or color." Frazer, 1976 WL 729 at *6. Such injunction was
extended to the class of defendant departments and agencies in a second decree that is still in full
force and effect:
Pursuant to the findings of fact and conclusions of law made and entered in this case and incorporated in the memorandum opinion of the Court filed this date, it is the ORDER, JUDGMENT and DECREE ofthis Court that:
1. Defendants, including the class ofdefendants represented by Bass, Boswell, Gray and Locke, their officers, agents, successors in office, employees, and all persons in active concert and participation with them are hereby permanently enjoined from engaging in any employment practice, including but not limited to any practice relating to recruitment, appointment, training, promotion or retention, which has the purpose or the effect of discriminating against any employee or actual or potential applicant for employment on the basis of race.
Frazer, 1976 WL 729 at *6. Such injunction was entered for the benefit of qualified African-
18

Americans who seek to compete for employment opportunities on the basis ofthe terms laid down
in that injunction, including, but not limited to, the current plaintiff-intervenors and the class they
represent. Since the entry of such decrees and injunctions in this case, defendants have continued
to engage in the same racially discriminatory practices in recruitment, examinations, hiring,
assignment, training, pay, promotions, and retention already found to be racially discriminatory and
enjoined in this action.
78. Defendants have continued to discriminate on the basis ofrace in recruitment in the
same way as already found in the prior decrees in this case. They have also failed and/or refused to
complywith the permanent injunction which required that "[a]11 defendants shall engage in intensive
recruiting efforts, including media advertising and individual contact with black leaders in
communities throughout the state, to secure qualified black applicants and black employees." Frazer,
1976 WL 729 at *7. Defendants have continued the following practices previously found to be
racially discriminatory and enjoined:
The defendants' methods ofadvertising employment opportunities do not reach substantial portions of the Negro popUlation of Alabama. The advertising and recruiting practices of the defendants tend to perpetuate the existing racial patterns of employment. These practices have resulted in discrimination against Negro citizens on the ground of their race or color.
*** The defendants shall adopt and implement a program ofrecruitment and advertising which will fully advise the Negro citizens ofthe State of Alabama ofthe employment opportunities available to them with the State of Alabama agencies
The defendants shall institute regular recruitment visits to predominantly Negro high schools, business and vocational schools, and colleges and universities throughout the State of Alabama, such visits to be made in person by appropriate officials of defendant
19

agencies from both local and central offices.
The defendants have continued the foregoing discriminatory recruitment practices and have not fully engaged in the recruitment methods ordered in this case. As a result, many of the best qualified African-Americans never knew about or were not able to apply for classifications that are historically and disproportionately occupied by non-black employees. The result has been a continuing pattern and practice ofracial discrimination that injures the plaintiff-intervenors and the class they represent
79. Defendants have violated the decrees and injunctions in this case by continuing to utilize closed registers which freeze-out African-American eligibles for prolonged periods and perpetuate past racial discrimination. Because African-Americans have only been able to gain entrance to the historically white lines of progression in recent years, the use of "closed" registers and "promotional" registers perpetuates the discriminatory effect of the past by precluding application even after the discriminatory exam eligibility criteria begin to be overcome by some African-Americans. Continuous open-competitive announcements and examinations would have allowed class members to apply as soon as they satisfy the exam eligibility criteria, which is usually a discriminatory "prior experience" requirement.
80. Defendants have continued to administer examinations and apply exam eligibility criteria which perpetuate the historical pattern of racial discrimination and are independently discriminatory. Defendants structure the examinations and exam eligibility criteria so as to favor those who have had experience in the historically white job classifications and positions within classifications through training and out-of-classification assignments and to disadvantage black applicants who have not been able to gain such experience or training to the same decree. By
20

depressing scores and ranks ofblack eligibles so that they continue to be clustered at the bottom of

registers, the defendants are able to avoid the certification ofblack eligibles and the remedial effect

ofthe decrees in this case. When the few black eligibles who have been able to survive the backlog

of discriminatory selection procedures begin to be reachable on the register in significant numbers,

defendants announce the formation ofnew registers so that a new influx ofwhite eligibles can retake

the upper levels of the register and keep the black eligibles at the bottom.

81.

The few black eligibles who occasionally break through this battery of

discriminatory practices are avoided through various manipulative devices already described in the

certificate-forming phase ofthe selection procedure and in the appointment phase once certificates

of eligibles are issued. Defendants have continued to manipulate the racial composition of

certificates of eligibles by: (1) previewing upcoming eligibles before the certificate is issued; (2)

timing the issuance of certificates in a way that advantages white eligibles and/or disadvantages

black eligibles, either by choosing between multiple registers (open competitive vs. promotional),

delaying or canceling the formation of the certificate until the racial composition changes through

ingress or egress of eligibles on the register, or using alternative means of filling positions which

avoid or delay the issuance ofthe certificate of eligibles, such as out-of-classifications assignment,

transfers, use ofcontract employees, reallocations, etc. This Court has already found such practices

to be racially discriminatory and that the defendant state agencies "have generally avoided

compliance with the decrees in this case by examining job registers maintained by the Personnel

Department and by requesting certificates of eligibles only at times when no blacks were available

for certification." Flowers, 1976 WL 729 at *6. These practices were enjoined, not only by the

direct prohibition of "deferring requests for certification until blacks are unavailable"and the

21

injunction against practices having a discriminatory "effect," but by continuing "in full force and effect" the 1970 injunction which required as follows:
N. It is further ORDERED that each ofthe defendants be and is hereby enjoined from failing to certify Negro applicants whose rank and geographical availability entitle them to certification. If a Negro applicant is removed from any certification, he shall have a right to the next available position in that classification in the geographical area, subject only to a finding of lack of qualification or fitness.
82. In those instances where African-Americans overcame the discriminatory recruitment, examination and certification process, the final phase ofthe appointment process after the issuance of a certificate of eligibles has remained a formidable discriminatory obstacle. Defendants still do not require that certified black eligibles be interviewed or that their candidacy be assessed through objective, race-neutral criteria. Defendants select anyone on the certificate of eligibles regardless ofrank, except in the increasingly rare instance that a black eligible is available and higher ranked.
83. All ofthe foregoing practices are either expressly condemned in the prior decrees and injunctions in this case or have the effect ofperpetuating past discrimination. The prior findings and decrees in this case condemned defendants' refusal to interview certified black eligibles and required that they be given fair consideration according to non-discriminatory selection procedures and criteria, including the requirement that "[d]ocumentary evidence shall be maintained by the State Personnel Department that will sustain the finding of unavailability or lack of qualifications ofthe Negro applicants when they are not appointed." Frazer, 371 F.Supp. at 1091-93, 1086-87.
84. The State Personnel Department, which is the agent of all of the State agencies enjoined in Frazer, has repeatedly been found in contempt of a consent decree in Reynolds which
22

has many of the same requirements as the Frazer injunction, such as the development and use of valid selection procedures. The State Personnel Department was found in non-compliance with such requirements in 1996-1997, found in contempt in June and July, 1998, found in contempt again in September 1998 and January 2000, and found in contempt a fourth time in July 2002 ---- less than a year ago. Reynolds Doc. 4147 (Defendants' stipulation ofnon-compliance); Reynolds, Doc. 1131 (Order and Injunction); Reynolds Doc. 1132 (Writ of Injunction);Reynolds Doc. 2890 (Civil Contempt Order) at pages 34-35; Reynolds Doc. 2954 (Supplemental Civil Contempt Order) at pages 6-7 ("Therefore, in light of the defendants' past contumacious conduct and in light of their evident reluctance to participate in fruitful efforts to move this litigation forward as quickly as possible toward the creation and implementation ofopen and competitive race-neutral promotion procedures for both provisional and permanent appointments, the court concludes that significant and substantial monetary sanctions are not only appropriate, they are desperately needed."); Reynolds, Doc. 3163 (Order) at pages 1-2; Reynolds Doc. 4284 (Order of Civil Contempt Against The Alabama Department Of Transportation And The Alabama State Personnel Department (finding of noncompliance and further sanctions); Reynolds Doc. 6026. Coercive fines are still being paid on the Articles ofthe Reynolds Decree that are most like the Frazer injunction's requirement to develop and use valid selection procedures - Articles Two, Three, and Eight ofthe Reynolds Decree. These are the Articles for which the State Personnel Department has principal responsibility. In addition, coercive fines are still being paid for contempt of Article Nineteen of the Reynolds Decree which incorporates the Frazer injunction itselfand makes it enforceable in Reynolds. See Article Nineteen, ~1 and ~6(c) (Reynolds Doc. 553). Article Nineteen of the Reynolds Decree provides as follows:
1. FrazerlBallard: Defendants remain bound by the injunctive
23

and declaratory relief entered in U.S. v. Frazer (now Ballard).
***
6(c). The parties will have the right to seek to enforce the provisions of this Decree by filing motions with the Court. The provisions ofthis Decree, and the issues challenged in the case, have been premised upon the existence ofthe prior remedies ordered in the FrazerlBallard case and, to the extent that any future acts or omissions violate the remedies ordered in Frazer/ Ballard, the plaintiffs will be entitled to enforce such remedies in this case in the same way that they are entitled to enforce the remedies ofany other provision ofthis Decree.
85. The United States and the defendants in this action have jointly moved to terminate
the part of the permanent injunction in this case known as the "no-bypass rule." Disposition ofthe
joint motion to terminate will, as a practical matter, impair or impede the movants' ability to protect
their interests in the decrees and injunctions entered in this action, as well as the prohibition against
racial discrimination guaranteed by Title VII ofthe Civil Rights Act of 1964, the Constitution ofthe
United States and 42 U.S.C. §§ 1981 and 1983. The current plaintiff-intervenors have a direct
interest in the decrees and injunctions entered in this case. Disposition of the joint motion to
terminate may impair or impede the plaintiff-intervenors' claim that the vestiges of past
discrimination continue into the present and that current practices perpetuate that discrimination.
In deciding the joint motion to terminate, the Court "must determine whether the decree's basic
purpose of eliminating the effects ofpast discrimination has been achieved." United States v. City
a/Miami, 2 F.3d 1497, 1508 (11 th Cir. 1993) "In making this determination, the district court must
certainly consider the ... Department's progress, or lack thereof, toward the long term goal ofwork
force parity," even though this is "not the determining factor." Id. at 1507. The Court must also
consider "whether the City has'complied in good faith' with the decree and whether the vestiges of
24

past discrimination have 'been eliminated to the extent practicable, '" including the defendants' "record of compliance with the decree, as well as ... other affirmative action undertakings" and "whether the current under representation of favored groups in the promotion ranks of the ... Department is a vestige of past discrimination, or the result of other neutral causes." Id. "In sum, termination ... would be appropriate if the district court finds that the decree is clearly no longer necessary either to prevent discrimination in the future or to remedy the effects of past discrimination." Id.
Wherefore, the plaintiff-intervenors respectfully request that this Court: a. Declare that the defendants have denied African-Americans equal protection of the laws in violation ofthe Fourteenth Amendment; 42 U.S.c. §§ 1981 and 1983; Title VII ofthe Civil Rights Act of 1964 and the prior decrees and injunctions in this case; b. Hold defendants in civil contempt ofcourt for non-compliance with the prior decrees and injunctions in this case; award sufficient coercive fines to achieve prompt compliance prospectively; and undo the effects of past non-compliance retrospectively through both monetary and non-monetary compensatory relief, including, but not limited to, backpay, damages, instatement, and other retrospective relief necessary to make the plaintiff-intervenors whole; c. Permanently enjoin defendants, their officers, agents, employees, successors, assigns, and all persons in active concert or participation with them, from all unlawful discrimination against the plaintiff-intervenors on the basis of race; d. Deny all requests to vacate or modify the prior decrees and injunctions entered in this case so that such decrees and injunctions, including the no by-pass injunction, remain in effect until no vestiges of the defendants' past discrimination in employment practices remain;
25

e. Order defendants to provide such relief as is necessary to compensate the plaintiff-

intervenors for the racial discrimination they have suffered and to restore them to their rightful

place;

f.

Grant the plaintiff-intervenors an award ofall costs and expenses including an award

of reasonable attorney's fees, and;

g. Grant other such relief as may be appropriate.

Respectfully submitted,

Robert F. Childs, Jr., ASB-2223-6-60R Ann K. Wiggins, ASB-7006-I-61A Rocco Calamusa, Jr. ASB-5324-A-61R

By: 1(~ F. (!JJf;),. ~
I
Counsel for Crum Plaintiffs and the Class

OF COUNSEL: WIGGINS, CHILDS, QUINN & PANTAZIS, P.C. 1400 SouthTrust Tower Birmingham, Alabama 35203 (205) 328-0640

26

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy ofthe foregoing has been served, either by hand delivery, facsimile transmittal, or by placing same in the United States Mail, properly addressed and first class postage prepaid, on this the12th day ofMarch, 2004, on the following:

Henry C. Barnett Christopher W. Weller Capell, Howard, Knabe & Cobbs, P.A. P.O. Box 2069 Montgomery, AL 36102-2069
Lisa W. Borden
BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C.
1600 SouthTrust Tower Birmingham, Alabama 35203
Alice Ann Byrne Alabama Department of Personnel 64 N. Union Street, Room 300 Montgomery, Alabama 36130
Raymond P. Fitzpatrick, Jr. R. Scott Clark Fitzpatrick, Cooper & Clark Suite 600 - Farley Building 1929 Third Avenue North Birmingham, Alabama 35203

William F. Gardner Joe Musso Cabaniss, Johnston, Gardner, Dumas & O'neal 700 Park Place Tower Birmingham, Alabama 35203
John J. Park Office of the Attorney General 11 South Union Street Montgomery, Alabama 36130
Mr. Jay D. Adelstein Employment Litigation Section Attn. 4026 PHB Civil Rights Division U. S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530

\

]J:tp,:-dLr[J ~

OF COUNSEL

I

27

 
 I I ,_, .-- '"" --,., I ",:
: , L>' '" IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
mUI\ ~~~.R \ 2 P ]: 2tlNORTHERN DIVISION

UNITED STATJi~ OF AMER.IC4;'

)

• "-"

-~

"I,' I

,

Plaintif&;" '

)

TIMOTHY D. POPE,

)

FIL£D
AlAR 12 2004

Intervenor-Plaintiff, JOHNNY REYNOLDS, et aI.,

) )

i ~Ui-IDsO.LO/fS;CTDRLEIICFSlT'/r(C.OF~

Intervenor-Plaintiffs,

)

EUGENE CRUM, et aI.,

)

Intervenor-Plaintiffs,

)

v.

) ClY. ACTION NO. 68-T-2709-N

JUDGE MYRON H. THOMPSON

THOMAS G. FLOWERS, et aI.,

)

Defendants.

)

ALABAMA STATE CONFERENCE OF NAACP

)

BRANCHES,

Amicus Curiae

)

COMPLAINT-IN-INTERVENTION OF JOHNNY REYNOLDS, ET AL.

Pursuant to the Order entered in this action January 20, 2004 granting intervention to Johnny

Reynolds, et al. [Doc nos. 637, 656], the following complaint-in-intervention is filed on behalf of:

Johnny Reynolds, Peggy Allen, Martha Boleware, Jeffery Brown, Ouida Maxwell, Cecil Parker,

Robert Johnson, Frank Reed, and the class they represent defined in their motion to intervene, this

complaint-in-intervention and in Reynolds, et al. v. Alabama Department o/Transportation, CV#85-

1

6b?

T-665-N. ["Reynolds" or "plaintiff-intervenors" hereafter]. 1. This complaint-in-intervention is filed pursuant to the Equal Protection Clause ofthe
Fourteenth Amendment to the Constitution ofthe United States; 42 U.S.C. §§ 1981 and 1983; Title VIIofthe Civil Rights Act of1964, 42 U.S.C. §§ 2000(e), et seq., and its implementing regulations, which prohibit employers from discriminating on the basis ofrace in employment opportunities; and the injunctions and decrees heretofore entered in this action which found defendants to have engaged in a pattern and practice of racial discrimination against African-Americans and enjoined acts or omissions having the purpose or effect ofperpetuating such discrimination. The plaintiff-intervenors are African-American applicants, potential applicants and/or employees ofthe defendants who are among the African-American employees and applicants that the decrees and injunctions entered in this case were meant to protect.
2. ThisCourthasjurisdictionunder28U.S.C. §§ 1331, 1243, 1367,2201 and42U.S.C. §§ 2000(e), et seq.
3. Peggy Allen is an African-American applicant for employment with the State of Alabama and Alabama Department ofTransportation. She applied for the classifications ofGraduate Civil Engineer and Environmental Engineer.
4. Martha Boleware is an African-American employee of the Alabama Department of Transportation. She was hired by ALDOT in 1978 and presently holds the classification of Civil Engineer.
5. Jeffery Brown is an African-American employee of the Alabama Department of Transportation. He first applied for employment with ALDOT in 1983 and was finally hired as a Civil Engineer V pursuant to the Reynolds Consent Decree in January 1995. Mr. Brown is presently
2

classified as a Civil Engineer Senior Administrator. 6. Ouida Maxwell is an African-American employee of the Alabama Department of
Transportation. She was hired by ALDOT in 1983 and presently holds the classification of Civil Engineer.
7. Cecil Parker is an African-American former employee of the Alabama Department of Transportation. Mr. Parker was employed at ALDOT from 1986 until his termination in 1990.
8. Johnny Reynolds is an African-American employee ofthe Alabama Department of Transportation. He was initially hired by ALDOT in 1978 and presently holds the classification of Civil Engineer Manager.
9. Robert Johnson is an African-American employee of the Alabama Department of Transportation. He was hired by ALDOT in 1981 and presently holds the classification ofHighway Maintenance Technician Will.
10. Frank Reed is an African-American employee of the Alabama Department of Transportation. he was hired by ALDOT in 1981 and presently holds the classification ofHighway Maintenance Technician WIll.
11. Each ofthe foregoing plaintiff-intervenors incorporate their prior facts and allegations set forth in Reynolds, et al. v. Alabama Department o/Transportation, CV#85-T-665-N, as part of the current complaint-in-intervention. ["Reynolds" hereafter]
12. The plaintiff-intervenors bring this complaint-in-intervention on their own behalfand on behalf of the class incorporated in the motion to intervene granted by the Court on January 20, 2004. Flowers Docs. 637, 656. Such class consists of all African-Americans who: (1) applied for employment opportunities covered by the prior decrees and injunctions in this case; or (2) would
3

have applied for such opportunities in the absence of the wrongs found and enjoined in this action and/or alleged in this complaint-in-intervention; or (3) are employed by the defendants, or were formerly employed by them during the period since the decrees and injunctions in this case were entered.
13. The prior decrees in this case found and enjoined a pervasive pattern and practice of racial discrimination in hiring, training, promotions, and other employment opportunities by the State Personnel Department and various departments and agencies ofthe State ofAlabama, including the Alabama Highway Department, now known as the Alabama Department of Transportation. Flowers Doc. 65 (reported at 317 F. Supp. at 1079); Flowers Docs. 141, 142 (reported at 1976 WL 729). The Court found that racial discrimination "has so permeated the employment practices ofthe defendants that it [is] necessary to enter a detailed and specific decree which will not only prohibit discrimination in the future but which will also prescribe procedures designed to prevent discrimination in the future and to correct the effects of past discrimination." Flowers Doc. 65 (reported at 317 F. Supp. 1079 (M.D. Ala. 1970)) (emphasis added). Such decree required, among other things: (1) that black eligibles not be passed over by lower ranked white eligibles "unless the defendants have first contacted and interviewed the higher-ranking Negro applicant" and have "documentary evidence" that such applicant "cannot perform the functions of the position, is otherwise unfit for it, or is unavailable" [hereinafter "no bypass injunction"]; (2) that Certificates of Eligibles "shall not be canceled or returned with vacancies unfilled unless each Negro applicant is appointed or is found to be unavailable or unqualified"; (3) that "[d]ocumentary evidence shall be maintained ... that will sustain the finding of unavailability or lack ofqualifications"; (4) that black applicants be notified of which position they were considered for and the action taken on their
4

application; (5) that "defendants shall assign employees on the basis oftheir training and ability" and
"shall not be assigned to serve ... predominantly Negro clientele"; and (6) that defendants "shall .
. . implement a program of recruitment and advertising which will fully advise the Negro citizens
of ... Alabama of the employment opportunities available to them with the State ... agencies."
Frazer, 317F. Supp. at 1090-1093.
14. This Court "permanently enjoined the defendants from the foregoing practices and
"from encouraging in any employment practices, including recruitment, examination, appointment,
training, promotion, retention, or any other personnel action, for the purpose or with the effect of
discriminating against any employee, or actual or potential applicant, on the ground ofrace or color."
Frazer, 317 F.Supp. at 1090 (Flowers doc. 65).
Pursuant to the findings of fact and conclusions of law made and entered in this case this date, it is the order, judgment and decree of this Court:
1. That the defendants, . .. their agents, officers, successors in office, employees and all persons acting in concert or participation with them, be and they are hereby permanently enjoined from engaging in any employment practices, including recruitment, examination, appointment, training, promotion, retention, or any other personnel action, for the purpose or with the effect of discriminating against any employee, or actual or potential applicant for employment, on the ground of race or color.
Frazer, 317 F. Supp. at 1090 (Flowers Doc. 65). Such pattern and practice has never been found
to have been remedied and the resulting injunction remains in force today. The current plaintiff-
intervenors are the African-American employees, applicants and potential applicants: (1) who such
injunction was entered to benefit and protect; and (2) who seek to compete for such employment
opportunities on the basis ofthe terms laid down in this Court's prior decrees and injunctions. Such
5

persons include the class of such persons covered by the motion to intervene granted in this action (Frazer docs. 638, 661), to-wit: all African-Americans who are or were employed by the defendants, or who applied, would have applied, or were otherwise injured by the practices found or enjoined in the prior decrees and injunctions in this case.
15. On May 25, 1985, plaintiff Johnny Reynolds brought suit on behalf of himself and a class ofAfrican-Americans denied hiring, promotion and other employment opportunities because ofnon-compliance with a permanent injunction against various discrete policies and practices which were found to be racially discriminatory in United States v. Frazer, Civ. No. 2709-N. Florence Belser, Jeffrey Brown, Peggy Allen and Ouida Maxwell intervened on behalf of themselves and three classes ofpersons seeking to enforce the permanent injunction in Frazer both prospectively and through remedies that would undo the injuries experienced from past non-compliance with its terms. Reynolds Docs. 11, 18,33,73,74,76, 78. The district court certified three plaintiffclasses, one comprised of black merit system employees seeking promotions who were represented by Reynolds and Maxwell, a second comprised of black non-merit system employees seeking to be hired as merit system employees who were represented by Belser, and a third that included black non-employees who sought to be hired as merit system employees represented by Brown and Allen. R82. The two hiring classes were subsequently consolidated into a single class having hiring claims with Brown and Allen as the class representatives.
16. The district court consolidated Reynolds with Frazer on July 31, 1992. After a six month trial in 1992-1993 on the claims based, inter alia, on violations of the Frazer injunction, the parties entered a partial settlement of such claims which bolstered such injunction and provided additional means for the Reynolds plaintiffs to challenge any further non-compliance. Reynolds Doc.
6

553-50,52. The parties settled plaintiffs' Frazer claims in Consent Decree I by: (1) incorporating
various parts of the Frazer injunction into such Decree; (2) providing additional relief to prevent
various means ofcircumventing such injunctions; (3) providing the Reynolds plaintiffs a continued
right "to enforce such [Frazer] remedies in this case" (Article Nineteen, ~6(c)); and (4) allowing
individual remedies for such violations to be pursued through the Article Twenty proceedings
provided by Consent Decree I. Reynolds Doc. 553-50, 52.
17. The terms of Article Nineteen of the Reynolds Decree provide that "the issues
challenged in the case have been premised upon the existence of the prior remedies in the
Frazer/Ballard case," that defendants would "remain bound by the injunctive and declaratory relief
entered in U S. v. Frazer" as a part of the Reynolds Consent Decree, and that plaintiffs would be
"entitled to enforce such [Frazer] remedies in this case in the same way that they are entitled to
enforce the remedies ofany other provision ofthis Decree." Art. 19, ~1 &~6(c) (Reynolds Doc. 553-
50,52). The full text of this provision of Consent Decree I was as follows:
1. FrazerlBallard: Defendants remain bound by the injunctive and declaratory relief entered in U.S. v. Frazer (now Ballard).
***
(c) The parties will have the right to seek to enforce the provisions of this Decree by filing motions with the Court. The provisions ofthis Decree, and the issues challenged in the case, have been premised upon the existence ofthe prior remedies ordered in the FrazerlBallard case and, to the extent that any future acts or omissions violate the remedies ordered in Frazer/ Ballard, the plaintiffs will be entitled to enforce such remedies in this case in the same way that they are entitled to enforce the remedies of any other provision ofthis Decree.
(d) It is the intent and purpose ofthis Decree to undo the effects of the past practices which have been the subject of this case
7

and Decree and to prevent further practices which may perpetuate such efforts or otherwise discriminate against the plaintiffs or the class they represent. To the extent that this Decree fails to achieve the intent and purpose for which it has been entered, the parties may seek further relief from the Court. R553, Art. 19, ~1 &~6(c) & (d). 18. The Notice ofProposed Consent Decree sent to the homes of all employees also described the claims that were brought in the lawsuit and covered by the Consent Decree, stating that the proposed Consent Decree "strengthens the intensified recruitment obligations imposed by the Federal court in United States v. Frazer in 1976" and that the reliefprovided in the Consent Decree was to encompass plaintiffs' "claim of perpetuation of the discrimination found to exist in United States v. Frazer in 1976 ...." Id. Reynolds Doc. 499. 19. In early 2000, the State Personnel Department and the Alabama Department of Transportation were held in contempt for non-compliance with the entirety of Consent Decree I, including the incorporated terms of the Frazer injunction. Reynolds v. Alabama Department of Transportation, 84 F. Supp. 2d 1339 (M.D. Ala. 2000). Frazer-based claims had also already been litigated in various other motions and proceedings in this case by the time the motion to dismiss such claims was filed in 2002. See, e.g., Order entered in Reynolds on April 24, 1998 «R2609) (interpreting ~2 and ~3 of § IT of the Frazer injunction of July 28, 1970); Order entered December 14, 2000 (Doc. no. 4660) (interpreting "no-bypass" injunction in Frazer). 20. Defendants have not complied with decrees and injunctions entered in this case, have not eliminated the vestiges of the prior racial discrimination found and enjoined in this case, and have continued to discriminate on the basis of race in the various ways that such decrees and injunctions were intended to prohibit. African-Americans are still stratified into lower classifications
8

and pay grades. They constitute more than 50% of pay grades 38 to 45, but less than 20% of pay grades 75 to 93, and less than 30% of pay grades 69 to 75.
21. Two of the principal means of undoing the vestiges of defendants' past racial discrimination and preventing further discrimination were: (1) the no-bypass injunction previously entered in this case; and (2) the injunction against examinations and other selection procedures that have not been shown to be valid pursuant to the guidelines of the United States Department of Justice and other federal agencies charged with enforcing Title VII ofthe Civil Rights Act of 1964. The pattern and practice of racial discrimination already found by this Court included "the State's use ofwritten tests which have an adverse racial impact" and cause black applicants to be "clustered at the bottom ofthe employment registers." Frazer, 1976 WL 729 at *3. Defendants were enjoined not to use examinations for ranking purposes unless they were shown to be valid under the federal guidelines requiring such examinations to "differentiate among levels of job performance" and demonstrate that "a higher score ... is likely to result in better job performance." 29 C.F.R. § 14C(9); see also Frazer, 1976 WL 729 at *7, ~1 0 ("No written test shall be used as a ranking device, unless and until it has been validated in accordance with the Guidelines On Employee Selection Procedures ... 29 C.F.R. § 1607 et seq. ..."). The ranking provision of the Uniform Guidelines on Employee Selection Procedures reads as follows:
(9) Ranking based on content validity studies. If a user can show, by a job analysis or otherwise, that a higher score on a content valid selection procedure is likely to result in betterjob performance, the results may be used to rank persons who score above minimum levels. Where a selection procedure supported solely or primarily by content validity is used to rankjob candidates, the selection procedure should measure those aspects ofperformance which differentiate among levels ofjob performance. 29 C.F.R. §1607.14C(9). The prior decrees and injunctions in this case require both that
9

examinations scores be shown to distinguish better performance and qualifications and that such better performers not be bypassed by persons with lower scores. Defendants have not complied with such requirements of the decrees and injunctions entered in this case and have disproportionately refused to include qualified African-American eligibles on certificate of eligibles based on invalid examination rankings that do not differentiate between applicants on the basis of performance or merit. Compliance with the examination provisions ofthe Court's prior decrees and injunctions in this case would have provided defendants a valid basis for selecting from certificate of eligibles on the basis of merit-based rankings consistent with the no-bypass injunction, rather than SUbjective opinions of relative qualifications or merit. The no-bypass injunction is based on the requirement that defendants develop valid examinations having scores that distinguish between applicants who are likely to be better performers on the job. The no-bypass paragraph of that injunction is an integral part of the remedies necessary to eliminate the vestiges of defendants' past racial discrimination and to prevent further discrimination. Rather than terminating the no-bypass injunction, it should be enforced by requiring the defendants to comply with the validation requirements of the prior decrees and injunctions in this action.
22. The no-bypass injunction also reduces the discriminatory effect of the overall selection process which is an important part ofthe Uniform Guidelines incorporated in the Frazer injunction. 29 C.F.R. § 1607.3B (requiring use of alternative "which has as little adverse impact as possible"). Examination scores continue to be severely discriminatory in eliminating AfricanAmericans who passed the test from certificates-of-eligibles, but such effect is mitigated to some degree by the no-bypass injunction by requiring that examination scores be respected in making appointments in the same way as in forming certificates of eligibles.
10

23. Defendants have also continued to follow the following practices which were declared
discriminatory and enjoined in the prior decrees of this case: (1) "[e]xamination for many classified
positions are conducted on a non-continuous basis, i.e., a register is established at a given time, and
no one is added to the register until it is depleted and another examination is given" so that "[0]ften
registers will remain 'closed' in this fashion for over two years;" (2) "avoid[ing] compliance with
the decrees in this case by examining job registers" and "requesting certificates of eligibility only
at times when no blacks were available for certification;" and (3) administering written tests and
other selection criteria which "screen[ ] out disproportionate numbers ofblack applicants" and that
"cluster[ ] [them] at the bottom of the employment registers where they were less likely to be
selected" without any showing that such criteria is "significantlyrelated to job perfonnance." Frazer,
12976 WL 729.
24. The Court has already "pennanently enjoined" the defendants from the foregoing
practices and "from engaging in any employment practices ... for the purpose or with the effect of discriminating ... on the ground ofrace or color." Frazer, 1976 WL 729 at *6. Such injunction was
extended to the class of defendant departments and agencies in a second decree that is still in full
force and effect:
Pursuant to the findings of fact and conclusions of law made and entered in this case and incorporated in the memorandum opinion of the Court filed this date, it is the ORDER, JUDGMENT and DECREE ofthis Court that:
1. Defendants, including the class ofdefendants represented by Bass, Boswell, Gray and Locke, their officers, agents, successors in office, employees, and all persons in active concert and participation with them are hereby pennanently enjoined from engaging in any employment practice, including but not limited to any practice relating to recruitment, appointment, training, promotion or retention,
11

which has the purpose or the effect of discriminating against any employee or actual or potential applicant for employment on the basis of race.
Frazer, 1976 WL 729 at *6. Such injunction was entered for the benefit of qualified African-
Americans who seek to compete for employment opportunities on the basis ofthe terms laid down
in that injunction, including, but not limited to, the current plaintiff-intervenors and the class they
represent. Since the entry of such decrees and injunctions in this case, defendants have continued
to engage in the same racially discriminatory practices in recruitment, examinations, hiring,
assignment, training, pay, promotions, and retention already found to be racially discriminatory and
enjoined in this action.
25. Defendants have continued to discriminate on the basis of race in recruitment in the
same way as already found in the prior decrees in this case. They have also failed and/or refused to
comply with the permanent injunction which required that "[a]11 defendants shall engage in intensive
recruiting efforts, including media advertising and individual contact with black leaders in
communities throughout the state, to secure qualified black applicants and black employees." Frazer,
1976 WL 729. Defendants have continued the following practices previously found to be racially
discriminatory and enjoined:
The defendants' methods ofadvertising employment opportunities do not reach substantial portions of the Negro population of Alabama. The advertising and recruiting practices of the defendants tend to perpetuate the existing racial patterns of employment. These practices have resulted in discrimination against Negro citizens on the ground of their race or color.
*** The defendants shall adopt and implement a program ofrecruitment and advertising which will fully advise the Negro citizens ofthe State of Alabama of the employment opportunities available to them with
12

the State of Alabama agencies The defendants shall institute regular recruitment visits to predominantly Negro high schools, business and vocational schools, and colleges and universities throughout the State of Alabama, such visits to be made in person by appropriate officials of defendant agencies from both local and central offices.
The defendants have continued the foregoing discriminatoryrecruitment practices and have not fully engaged in the recruitment methods ordered in this case. As a result, many of the best qualified African-Americans never knew about or are able to apply for classifications that are historically and disproportionately occupied by non-black employees. The result has been a continuing pattern and practice of racial discrimination that injures the plaintiff-intervenors and the class they represent
26. Defendants have violated the decrees and injunctions in this case by continuing to utilize closed registers which freeze-out African-American eligibles for prolonged periods and perpetuate past racial discrimination. Because African-Americans have only been able to gain entrance to the historically white lines of progression in recent years, the use of "closed" registers and "promotional" registers perpetuates the discriminatory effect of the past by precluding application even after the discriminatory exam eligibility criteria begin to be overcome by some African-Americans. Continuous open-competitive announcements and examinations would have allowed class members to apply as soon as they satisfy the exam eligibility criteria, which is usually a discriminatory "prior experience" requirement.
27. Defendants have continued to administer examinations and apply exam eligibility criteria which perpetuate the historical pattern of racial discrimination and are independently discriminatory. Defendants structure the examinations and exam eligibility criteria so as to favor
13

those who have had experience in the historically white job classifications and positions within

classifications through training and out-of-classification assignments and to disadvantage black

applicants who have not been able to gain such experience or training to the same decree. By

depressing scores and ranks ofblack eligibles so that they continue to be clustered at the bottom of

registers, the defendants are able to avoid the certification ofblack eligibles and the remedial effect

ofthe decrees in this case. When the few black eligibles who have been able to survive the backlog

of discriminatory selection procedures begin to be reachable on the register in significant numbers,

defendants announce the formation ofnew registers so that anew influx ofwhite eligibles can retake

the upper levels of the register and keep the black eligibles at the bottom.

28.

The few black eligibles who occasionally break through this battery of

discriminatory practices are avoided through various manipUlative devices already described in the

certificate-forming phase of the selection procedure and in the appointment phase once certificates

of eligibles are issued. Defendants have continued to manipulate the racial composition of

certificates of eligibles by: (1) previewing upcoming eligibles before the certificate is issued; (2)

timing the issuance of certificates in a way that advantages white eligibles and/or disadvantages

black eligibles, either by choosing between multiple registers (open competitive vs. promotional),

delaying or canceling the formation of the certificate until the racial composition changes through

ingress or egress of eligibles on the register, or using alternative means of filling positions which

avoid or delay the issuance ofthe certificate of eligibles, such as out-of-classifications assignment,

transfers, use ofcontract employees, reallocations, etc. This Court has already found such practices

to be racially discriminatory and that the defendant state agencies "have generally avoided

compliance with the decrees in this case by examining job registers maintained by the Personnel

14

Department and by requesting certificates of eligibles only at times when no blacks were available for certification." Flowers, 1976 WL 729 at *6. These practices were enjoined, not only by the direct prohibition of "deferring requests for certification until blacks are unavailable"and the injunction against practices having a discriminatory "effect," but by continuing "in full force and effect" the 1970 injunction which required as follows:
IV. It is further ORDERED that each ofthe defendants be and is hereby enjoined from failing to certify Negro applicants whose rank and geographical availability entitle them to certification. If a Negro applicant is removed from any certification, he shall have a right to the next available position in that classification in the geographical area, subject only to a finding of lack of qualification or fitness.
29. In those instances where African-Americans overcame the discriminatory recruitment, examination and certification process, the final phase ofthe appointment process after the issuance of a certificate of eligibles has remained a formidable discriminatory obstacle. Defendants still do not require that certified black eligibles be interviewed or that their candidacy be assessed through objective, race-neutral criteria. Defendants select anyone on the certificate of eligibles regardless of rank, except in the increasingly rare instance that a black eligible is available and higher ranked.
30. All ofthe foregoing practices are either expressly condemned in the prior decrees and injunctions in this case or have the effect ofperpetuating past discrimination. The prior findings and decrees in this case condemned defendants' refusal to interview certified black eligibles and required that they be given fair consideration according to non-discriminatory selection procedures and criteria, including the requirement that "[d]ocumentary evidence shall be maintained by the State Personnel Department that will sustain the finding of unavailability or lack of qualifications ofthe
15

Negro applicants when they are not appointed." Frazer, 371 F.Supp. at 1091-93, 1086-87. 31. The State Personnel Department, which is the agent of all of the State agencies
enjoined in Frazer, has repeatedly been found in contempt of a consent decree in Reynolds which has many of the same requirements as the Frazer injunction, such as the development and use of valid selection procedures. The State Personnel Department was found in non-compliance with such requirements in 1996-1997, found in contempt in June and July, 1998, found in contempt again in September 1998 and January 2000, and found in contempt a fourth time in July 2002. Reynolds Doc. 4147 (Defendants' stipulation of non-compliance); Reynolds, Doc. 1131 (Order and Injunction); Reynolds Doc. 1132 (Writ ofInjunction);Reynolds Doc. 2890 (Civil Contempt Order) at pages 34-35; Reynolds Doc. 2954 (Supplemental Civil Contempt Order) at pages 6-7 ("Therefore, in light of the defendants' past contumacious conduct and in light of their evident reluctance to participate in fruitful efforts to move this litigation forward as quickly as possible toward the creation and implementation ofopen and competitive race-neutral promotion procedures for both provisional and permanent appointments, the court concludes that significant and substantial monetary sanctions are not only appropriate, they are desperately needed."); Reynolds, Doc. 3163 (Order) at pages 1-2; Reynolds Doc. 4284 (Order ofCivil Contempt Against The Alabama Department OfTransportation And The Alabama State Personnel Department (finding of noncompliance and further sanctions); Reynolds Doc. 6026. Coercive fines are still being paid on the Articles ofthe Reynolds Decree that are most like the Frazer injunction's requirement to develop and use valid selection proceduresArticles Two, Three, and Eight of the Reynolds Decree. These are the Articles for which the State Personnel Department has principal responsibility. In addition, coercive fines are still being paid for contempt ofArticle Nineteen ofthe Reynolds Decree which incorporates the Frazer injunction itself
16

and makes it enforceable in Reynolds. See Article Nineteen, ~1 and ~6(c) (Reynolds Doc. 553).
Article Nineteen ofthe Reynolds Decree provides as follows:
1. FrazerIBallard: Defendants remain bound by the injunctive and declaratory relief entered in U.S. v. Frazer (now Ballard).
***
6(c). The parties will have the right to seek to enforce the provisions of this Decree by filing motions with the Court. The provisions ofthis Decree, and the issues challenged in the case, have been premised upon the existence ofthe priorremedies ordered in the FrazerIBallard case and, to the extent that any future acts or omissions violate the remedies ordered in Frazerl Ballard, the plaintiffs will be entitled to enforce such remedies in this case in the same way that they are entitled to enforce the remedies ofany other provision ofthis Decree.
32. The United States and the defendants in this action have jointly moved to terminate
the part ofthe permanent injunction in this case known as the "no-bypass rule." Disposition ofthe
joint motion to terminate will, as a practical matter, impair or impede the movants' ability to protect
their interests in the decrees and injunctions entered in this action, as well as the prohibition against
racial discrimination guaranteed by Title VII ofthe Civil Rights Act of 1964, the Constitution ofthe
United States and 42 U.S.c. §§ 1981 and 1983. The current plaintiff-intervenors have a direct
interest in the decrees and injunctions entered in this case. Disposition of the joint motion to
terminate may impair or impede the plaintiff-intervenors' claim that the vestiges of past
discrimination continue into the present and that current practices perpetuate that discrimination.
In deciding the joint motion to terminate, the Court "must determine whether the decree's basic
purpose of eliminating the effects ofpast discrimination has been achieved." United States v. City
o/Miami, 2 F.3d 1497, 1508 (lIth Cir. 1993) "In making this determination, the district court must
certainly consider the ... Department's progress, or lack thereof, toward the long term goal ofwork
17

force parity," even though this is "not the detennining factor." [d. at 1507. The Court must also consider "whether the City has 'complied in good faith' with the decree and whether the vestiges of past discrimination have 'been eliminated to the extent practicable,'" including the defendants' "record of compliance with the decree, as well as ... other affinnative action undertakings" and "whether the current under representation of favored groups in the promotion ranks of the ... Department is a vestige of past discrimination, or the result of other neutral causes." [d. "In sum, tennination ... would be appropriate if the district court finds that the decree is clearly no longer necessary either to prevent discrimination in the future or to remedy the effects of past discrimination." [d.
Wherefore, the plaintiff-intervenors respectfully request that this Court: a. Declare that the defendants have denied African-Americans equal protection of the
laws in violation ofthe Fourteenth Amendment; 42 U.S.C. §§ 1981 and 1983; Title vn ofthe Civil
Rights Act of 1964 and the prior decrees and injunctions in this case; b. Hold defendants in civil contempt ofcourt for non-compliance with the prior decrees
and injunctions in this case; award sufficient coercive fines to achieve prompt compliance prospectively; and undo the effects of past non-compliance retrospectively through both monetary and non-monetary compensatory relief, including, but not limited to, backpay, damages, instatement, and other retrospective relief necessary to make the plaintiff-intervenors whole;
c. Pennanently enjoin defendants, their officers, agents, employees, successors, assigns, and all persons in active concert or participation with them, from all unlawful discrimination against the plaintiff-intervenors on the basis of race;
d. Deny all requests to vacate or modify the prior decrees and injunctions entered in
18

this case so that such decrees and injunctions, including the no by-pass injunction, remain in effect

until no vestiges of the defendants' past discrimination in employment practices remain;

e. Order defendants to provide such relief as is necessary to compensate the plaintiff-

intervenors for the racial discrimination they have suffered and to restore them to their rightful

place;

f.

Grant the plaintiff-intervenors an award ofall costs and expenses including an award

of reasonable attorney's fees, and;

g. Grant other such relief as may be appropriate.

Respectfully submitted,

Robert L. Wiggins, Jr. Alabama State Bar Number: 1754-G63R Kell A. Simon Alabama State Bar Number: SIM-061

Counsel for Reynolds Plaintiffs and the Class
OF COUNSEL: WIGGINS, CHILDS, QUINN & PANTAZIS, P.e. 1400 SouthTrust Tower Birmingham, Alabama 35203 (205) 328-0640

19

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy ofthe foregoing has been served, either by hand delivery, facsimile transmittal, or by placing same in the United States Mail. properly addressed and first class postage prepaid, on this the 12th day of March, 2004, on the following:

Henry C. Barnett Christopher W. Weller Capell, Howard, Knabe & Cobbs, P.A. P.O. Box 2069 Montgomery, AL 36102-2069
Lisa W. Borden
BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C.
1600 SouthTrust Tower Birmingham, Alabama 35203
Alice Ann Byrne Alabama Department of Personnel 64 N. Union Street, Room 300 Montgomery, Alabama 36130
Raymond P. Fitzpatrick. Jr. R. Scott Clark Fitzpatrick, Cooper & Clark Suite 600 - Farley Building 1929 Third Avenue North Birmingham, Alabama 35203

William F. Gardner Joe Musso Cabaniss, Johnston, Gardner, Dumas & O'neal 700 Park Place Tower Birmingham, Alabama 35203
John J. Park Office of the Attorney General 11 South Union Street Montgomery. Alabama 36130
Mr. Jay D. Adelstein Employment Litigation Section Attn. 4026 PHB Civil Rights Division U. S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530

20

 
 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,
TIMOTHY D. POPE, Plaintiff-Intervenor,
JOHNNY REYNOLDS, et al., Plaintiff-Intervenors,
EUGENE CRUM, JR., et al., Plaintiff-Intervenors, v.
TOMMY G. FLOWERS, et al., Defendants.
ALABAMA STATE CONFERENCE OF NAACP BRANCHES,
Amicus Curiae.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
) CIVIL ACTION NO. ) 2:68cv2709-T ) ) ) ) ) ) ) )

ORDER This case is now before the court on a motion to intervene, filed by Loyd Arrington, Quinton Beard, John D'Arville, Janet Justice, and Billy Stephens (the Arrington

movants), and a motion for class certification, filed by plaintiff-intervenor Timothy Pope and the Arrington movants. For following reasons, the court agrees with plaintiff United States of America that these motions should be held in abeyance until the court makes a final decision on the scope of discovery and the scope of its inquiry into the joint motion to terminate the no-bypass rule.
I. Background On May 20, 2003, the United States and the defendants filed a joint motion to terminate the no-bypass rule in this long-running employment discrimination case. This court granted motions to intervene by the Reynolds and Crum classes (African-American employees of ALDOT and all state agencies, respectively), and Timothy Pope, a white employee of the Alabama Department of Corrections who says he was denied a promotion because of the no-bypass rule. These were permissive interventions.
2

This court instructed the parties to agree on a discovery plan, but they could not do so. The United States, the defendants, and Pope argued that discovery should be limited to an analysis of the data underlying the statistical report that the original parties had submitted, which purports to show that the no-bypass rule is no longer necessary. The Reynolds and Crum intervenors wanted discovery to be much broader, encompassing information about specific instances of alleged discrimination across the State government. The Reynolds and Crum intervenors argued that the question of whether the no-bypass rule was still necessary could require an agency-by-agency or classification-by-classification analysis.
This court approved the more limited proposed discovery plan of the United States, the defendants, and Pope. However, the court left open the possibility that it would allow more discovery after reviewing the Reynolds and Crum intervenors' rebuttal report.1
1. Order, filed April 7, 2004 (Doc. no. 674). 3

II. Discussion A. Motion to Intervene The Arrington movants are non-black merit system employees of the State of Alabama. They each work for a different state agency. The Arrington movants "seek to vindicate and protect interests similar to intervenor Pope's." Specifically, they want to argue that the nobypass rule should be terminated because it is unconstitutional race-based discrimination, which is one of the arguments that intervenor Pope has made. However, they say they need to intervene because Pope may not be able to represent adequately their interests "with regard to the issues and claims asserted in the Crum and [Reynolds] complaints-in-intervention." At this point, it would be premature to decide whether the Arrington movants should be allowed to intervene. Intervention as of right is appropriate only when, among other requirements, the proposed intervenor's interest is not adequately represented by the existing parties. Fed. R.
4

Civ. P. 24(a). As long as the scope of discovery and the court's inquiry remain focused on how the no-bypass rule works in state government as a whole, there is no need to allow intervention by non-black employees of each individual state agency. Indeed, the motion for class certification seems to admit this point when it says that "the Frazer nobypass rule affects all non-blacks negatively and equally, [so] none of the class representatives or class members possess interests in this matter that are or will be potentially antagonistic to one another."2
Of course, if, after reviewing the Reynolds and Crum intervenors' rebuttal report, the court decides to widen the scope of discovery to include information that is specific to particular state agencies, then granting the Arrington movants' motion for intervention might be appropriate. Thus, the court declines to address the merits of the motion for intervention until after it has decided on the scope of
2. Motion for class certification, filed April 21, 2004 (Doc. no. 677), at 2.
5

discovery and the scope of its inquiry into the no-bypass rule.
B. Motion for class certification Intervenor Pope and the Arrington movants have also moved for certification of a class of all non-black merit system employees of the State of Alabama. Of course, if the Arrington movants had filed this motion themselves, then its success would be dependent on the success of their motion to intervene. See Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 596 n.14 (7th Cir. 1993) (holding that unsuccessful movants for intervention did not have standing to appeal the denial of their motion for class certification). However, since Pope, who has already intervened, also filed the motion for class certification, class certification might be appropriate even if the Arrington movants are not proper intervenors. However, for reasons similar to those explained above, this court will not address at this time the merits of the
6

motion for class certification. Motions for class certification are to be decided "at an early practicable time," Fed. R. Civ. P. 23(c)(1)(A), but it will not be practicable to decide this motion until it is clear what the scope of the court's inquiry into the joint motion to terminate the no-bypass rule will be. For instance, at this point it is not practicable to determine what questions of law or fact are common to the putative class, since it is not clear whether the inquiry into the no-bypass rule will include an agency-by-agency analysis.
Further, the court notes that at this point, Pope and the Arrington movants have not proven that class certification is appropriate, as they have not presented any evidence at all.
For the foregoing reasons, it is ORDERED that Loyd Arrington, Quinton Beard, John D'Arville, Janet Justice, and Billy Stephens' motion to intervene (Doc. no. 676) and plaintiff-intervenor Timothy Pope and the Arrington movants' motion for class certification (Doc. no. 677) are
7

conditionally denied with leave to ask for reconsideration after the court makes a final determination as to the scope of discovery and the scope of its inquiry into the joint motion to terminate the no-bypass rule.
Done, this the 28th day of March, 2005.
/s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

 
 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff,

)

)

TIMOTHY D. POPE,

)

)

Plaintiff-Intervenor, )

)

JOHNNY REYNOLDS, et al., )

)

Plaintiff-Intervenors, )

)

EUGENE CRUM, JR., et al., )

)

Plaintiff-Intervenors, )

)

v.

)

)

TOMMY G. FLOWERS, et al., )

)

Defendants.

)

)

ALABAMA STATE CONFERENCE )

OF NAACP BRANCHES,

)

)

Amicus Curiae.

)

CIVIL ACTION NO. 2:68cv2709-MHT
(WO)

JUDGMENT

In accordance with the memorandum opinion entered this date, it is the ORDER, JUDGMENT, and DECREE of the court as follows:
(1) Intervenor Timothy D. Pope’s motion for summary judgment (doc. no. 757) and the State defendants motion for summary judgment (doc. no. 759) are granted.
(2) Plaintiff United States of America and the State defendants’ joint motion to terminate no-bypass provisions of injunctive orders (doc. no. 634) and intervenor Pope’s motion to modify injunction (doc. no. 659) are granted.
(3) The application of the no-bypass rule in this litigation is permanently terminated.
The clerk of the court is DIRECTED to enter this document on the civil docket as a final judgment pursuant to Rule 58 of the Federal Rules of Civil Procedure.
DONE, this the 30th day of June, 2006.
/s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

 
 Case 2:68-cv-02709-MHT-CSC Document 759 Filed 09/09/2005 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,
TIMOTHY D. POPE, Intervenor-Plaintiff,
JOHNNY REYNOLDS, et al., Intervenor-Plaintiffs,
v. TOMMY G. FLOWERS, et al.,
Defendants.

)

)

)

)

)

)

) CIVIL ACTION NO. CV-68-T-2709-N

)

)

Judge Thompson

)

)

)

)

)

)

)

)

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON JOINT MOTION TO TERMINATE NO-BYPASS
PROVISIONS OF INJUNCTIVE ORDERS (DOC. NO. 634).

COME NOW Defendants in the above-styled case, and pursuant to Federal Rule of Civil Procedure 56, move this court for summary judgment on the Joint Motion to Terminate No-Bypass Provisions of Injunctive Orders (Doc. no. 634) (hereinafter, the “Joint Motion to Terminate”).1 As grounds for this motion, Defendants state that there is no genuine issue of material fact and that they are entitled to summary judgment as a matter of law.

1 After granting the Joint Motion to Terminate under a preliminary injunction standard, this Court set the Joint Motion for final submission and summary disposition pursuant to Rule 56 of the Federal Rules of Civil Procedure in its April 29, 2005 Order. (Doc. no. 724) at 4. Consequently, Defendants submit this Motion for Summary Judgment in tandem with its original Joint Motion to Terminate as directed by the Court.
1

Case 2:68-cv-02709-MHT-CSC Document 759 Filed 09/09/2005 Page 2 of 6

This motion is based on the following:

• Defendants Memorandum of Law in Support of Their Motion for Summary Judgment on Defendants’ Joint Motion to Terminate No-Bypass Provisions of Injunctive Orders (Doc. no. 634), filed contemporaneously herewith;

• The pleadings filed to date;

• The reports submitted by Defendants’ experts Drs. Joan Haworth and Janet Thornton (Doc. nos. 634, 675, 697);

• The deposition testimony of Defendants’ experts Joan G. Haworth, Ph.D. and Janet R. Thornton, Ph.D.;

• The Affidavit of Janet R. Thornton, Ph.D.; and

•

The deposition testimony of the Reynolds/Crum Intervenor’s

expert Edwin Bradley, Ph.D.

In further support of this motion, Defendants state as follows: 1. The no-bypass provision of the Frazer injunctions classifies candidates for State

employment and promotion on the basis of race. The rule mandates that a higher ranked African-

American candidate cannot be bypassed to select a lower ranked non-African-American candidate,

unless the African-American candidate refuses the position, is unavailable, or is found to be

unqualified for the position. This race-conscious, indeterminate, across-the-board rule has operated

continually absent any court review or reauthorization for over 35 years.

2. Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, Defendants have asked the Court to modify the Frazer injunctions by eliminating the no-bypass rule based on a significant change in circumstances (both factual and legal) that justifies modification under Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992) and Ensley Branch, NAACP v. Seibels, 31 F.3d

1548 (11th Cir. 1994). With respect to the significant change in legal circumstances, following

implementation of the no-bypass rule in the 1970s, the Supreme Court, followed by the Eleventh

2

Case 2:68-cv-02709-MHT-CSC Document 759 Filed 09/09/2005 Page 3 of 6
Circuit Court of Appeals, adopted a strict scrutiny standard requiring that all race-conscious remedies be narrowly tailored and serve a compelling governmental interest. In the instant case, the no-bypass rule cannot survive strict scrutiny because it no longer promotes a compelling governmental interest. Today, there is no evidence of the pervasive, systematic, and obstinate discriminatory conduct that characterized the State Defendants’ employment practices in the 1960s and 70s. To the contrary, as this Court has found, there has been a “substantial positive change in the racial makeup of the government of the State of Alabama after the uninterrupted implementation of the no-bypass rule for 35 years.” See 04/29/05 Order (Doc. no. 723) at 7-8. In fact, the Court preliminarily enjoined continued application of the no-bypass rule based, in part, on its conclusion that “continued implementation of the no-bypass rule would cause irreparable injury to all state employees and applicants for state jobs, and thus would be against the public interest. …” Id. at 8. Furthermore, the same undisputed facts that demonstrate a lack of a compelling governmental interest also support modification under the changed factual circumstances prong of Rufo.
3. The lack of any compelling governmental interest is further demonstrated by the fact that the discriminatory selection practices that justified implementation of the Frazer no-bypass rule have ceased, and the effects of such practices have been eliminated. Specifically, with respect to selections made from the certificates of eligibles (“COE”), i.e., the only step in the selection process to which the no-bypass rule applies, the evidence establishes that the State has demonstrated its good faith in implementing an exemplary selection process substantially free of discrimination and that the State Defendants consistently have selected African-Americans from the COEs at rates consistent with or greater than their representation on the COEs. More tellingly, even when selections are not subject to the no-bypass rule, e.g., when the COE consists of a single band of candidates, all of whom have the same score and rank, the State Defendants have selected African-
3

Case 2:68-cv-02709-MHT-CSC Document 759 Filed 09/09/2005 Page 4 of 6
Americans at rates consistent with or greater than their representation on the COEs. In sum, there is no evidence supporting a compelling governmental interest justifying continued application of the no-bypass rule.
4. Additionally, even if the Court determines that a compelling governmental interest exists, the no-bypass rule remains facially unconstitutional because it is not sufficiently narrowly tailored in that it lacks any durational limit or provision for court review or reauthorization; it is inflexible in its application; and it has an intolerable impact on innocent third parties.
5. Defendants’ request for the complete elimination of the no-bypass rule is also suitably tailored and not overbroad because any remedy short of total elimination would perpetuate an existing constitutional violation.
6. Finally, Defendants are not required to establish perfect compliance or elimination of all discrimination with respect to implementation of the no-bypass rule. As long as human beings are making selections in employment, perfect compliance, although ideal, is unrealistic, particularly when dealing with thousands of selections made by multiple decision-makers in many agencies and departments geographically dispersed throughout the 67 counties of the State of Alabama. To the extent that there remain isolated and anecdotal examples of discrimination and attempts to circumvent or otherwise violate the no-bypass rule, such violations are best addressed through traditional federal remedies such as Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 1981a, 2000e through 2000e-17, and the Civil Rights Act of 1866, 42 U.S.C.A. § 1981.
WHEREFORE, PREMISES CONSIDERED, Defendants are entitled to summary judgment pursuant to FED. R. CIV. P. 56 on their Joint Motion to Terminate No-Bypass Provisions of Injunctive Orders (Doc. no. 634).
4

Case 2:68-cv-02709-MHT-CSC Document 759 Filed 09/09/2005 Page 5 of 6

Respectfully submitted this 9th day of September, 2005.

OF COUNSEL
CAPELL & HOWARD, P. C. P.O. Box. 2069 Montgomery, Alabama 36102-2069 (334) 241-8000 Fax: (334) 328-8888 cww@chlaw.com

s/Christopher W. Weller Christopher W. Weller (WEL030) Deputy Attorney General and Liaison Counsel for the Office of the Attorney General of the State of Alabama

5

Case 2:68-cv-02709-MHT-CSC Document 759 Filed 09/09/2005 Page 6 of 6

CERTIFICATE OF SERVICE
I hereby certify that on the 9th day of September 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following:

Robert L. Wiggins, Jr. Kell A. Simon WIGGINS, CHILDS, QUINN
& PANTAZIS, P.C. 301 19th Street North Birmingham, Alabama 35203-3204

Taylor Abbott Raymond P. Fitzpatrick, Jr. R. Scott Clark FITZPATRICK, COOPER & CLARK, LLP Farley Building, Suite 600 1929 Third Avenue North Birmingham, Alabama 35203

Hon. Troy King Attorney General of the State of Alabama State Capitol 600 Dexter Avenue Montgomery, Alabama 36130

Alice Ann Byrne, Esq. ALABAMA DEPARTMENT OF PERSONNEL 64 N. Union Street Montgomery, Alabama 36130

Hon. Alex Acosta U.S. ASSISTANT ATTORNEY GENERAL Civil Rights Division Employment Litigation Section – PHB 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530

Mr. Jay D. Adelstein EMPLOYMENT LITIGATION SECTION Attn: 4026PHB Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530

David R. Boyd J. Dorman Walker BALCH & BINGHAM, LLP P.O. Box 78 Montgomery, Alabama 36101-0078

s/Christopher W. Weller OF COUNSEL

6

 
 Case 2:68-cv-02709-MHT-CSC Document 758-1 Filed 09/09/2005 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

UNITED STATES OF AMERICA, Plaintiff,
TIMOTHY D. POPE, Intervenor-Plaintiff,
JOHNNY REYNOLDS, et al., Intervenor-Plaintiffs,
v. TOMMY G. FLOWERS, et al.,
Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 2:68-cv-2709-T ) ) ) )

PLAINTIFF-INTERVENOR TIMOTHY D. POPE’S BRIEF AND EVIDENTIARY SUBMISSION IN SUPPORT OF SUMMARY JUDGMENT ON INTERVENOR’S
MOTION TO MODIFY INJUNCTION (DOC. NO. 657)

Pursuant to Fed. R. Civ. P. 56, Intervenor Timothy D. Pope files this brief and evidentiary

submission in support of his motion for summary judgment on his motion to modify the injunction

in this case. Doc. no. 657. For the reasons set forth below, the Court should grant Pope’s motion,

permanently terminate the no-bypass rule and enter such further relief as may be necessary to ensure

that the State’s employment selection procedures comply with federal law.

I.

HISTORY OF THE RECENT PROCEEDINGS

On February 25, 2003, Pope moved to intervene in this litigation to modify the injunction

entered by this Court in U.S. v. Frazer, 317 F.Supp. 1079 (M.D. Ala., 1970), pursuant to Rufo v.

Inmates of Suffolk Co. Jail, 502 U.S. 367, 116 L. Ed. 2d 867, 112 S. Ct. 748 (1992). Specifically,

Case 2:68-cv-02709-MHT-CSC Document 758-1 Filed 09/09/2005 Page 2 of 15
Pope asserted that the portion of the Frazer injunction, commonly referred to as the “no-bypass rule” should be permanently ended because it “constitute[d] an unlawful and unconstitutional race-based remedy,” that was “plainly beyond the scope of permissible remedies under Title VII of the Civil Rights Act of 1964, the anti-discrimination provisions of federal funding statutes at issue here, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.” Doc. no. 605 at 2. In the thirty months that have transpired since Pope’s first pleading, nothing has occurred that would suggest Pope’s original position in this matter is not correct.
On January 20, 2004 the Court granted Pope’s motion to intervene. Doc. no. 655. Shortly thereafter, the Clerk filed Pope’s motion to modify the Frazer injunction that was served with his intervention motion. Doc. no. 659. The motion to modify asserts: • “Changes in both law and fact during the past three decades require modification of these
injunctions, and particularly the Frazer no-bypass preference which is patently unconstitutional.” Id. at ¶ 12. • “The Frazer injunction classifies candidates on the basis of race and, as has happened here, provides and denies hiring and promotional benefits on the basis of race.” Id. at ¶ 13. • “This racial classification (and preference) is not supported by a compelling governmental interest . . . is not narrowly tailored to end any ongoing discrimination . . . has no fixed duration . . . ignores effective race-neutral alternatives . . . has no relationship whatsoever with the relevant labor market; and it has severe impact on the rights of innocent third parties . . . Under Supreme Court and Eleventh Circuit precedent, the Frazer injunctions are plainly unconstitutional.” Id. • “The injunction is plainly beyond the scope of permissible remedies under Title VII of the
2

Case 2:68-cv-02709-MHT-CSC Document 758-1 Filed 09/09/2005 Page 3 of 15
Civil Rights Act of 1964, the anti-discrimination provisions of the federal funding statutes at issue here, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Id. at ¶ 14. In his motion Pope requested the following relief: • “[M]odification of these injunctions and specifically the Frazer no-bypass preference, pursuant to Rule 60(b) and Rufo v. Inmates of Suffolk Co. Jail, 502 U.S. 367 (1992). Id. at ¶ 17. • Modification and revision of the injunction “to reflect that its true ‘purpose is to remedy past and present discrimination, not to achieve workplace parity.’” Quoting, Ensley Branch, NAACP v. Seibels, 31 F.3d 1548, 1570-71 (11th Cir. 1994). • That the Court “vacate the race-conscious provisions of the 1970 and 1976 injunctions including the no-bypass rule . . .” Id. at 10. After a period of discovery and briefing, the Court entered an order granting Pope’s motion for a preliminary injunction, finding “there has been ‘a significant change . . . in factual conditions [and] in law’” (quoting Rufo), Doc. no. 735 at 3. Finally, the Court held, “Pending final resolution of the joint motion to terminate the no-bypass rule (Doc. no. 634) and the motion to modify injunction as to the no-bypass rule (Doc. no. 659), the application of the no-bypass rule is suspended . . .” Doc. no. 735 at 5. Because there exists no disputed issues of material fact and he is entitled to judgment in his favor as a matter of law, intervenor Timothy D. Pope moves for summary judgment on his motion to modify the Frazer injunction. Doc. no. 659. II. THE PROCEDURAL POSTURE OF THE CASE
3

Case 2:68-cv-02709-MHT-CSC Document 758-1 Filed 09/09/2005 Page 4 of 15
At the outset it should be recognized that there are two motions pending before the Court (Doc. no. 723 at 3):
1. The Motion to Modify Injunction (hereinafter, the “motion to modify”), served by Pope with his motion to intervene on February 24, 2003, and filed on January 28, 2004. Doc. no. 605. See also Doc. no. 659.
2. The Joint Motion to Terminate No-Bypass Provisions of Injunctive Orders (hereinafter, the “joint motion”), filed by plaintiff United States and the State defendants on May 20, 2003 (to the extent that the above motion sought termination of the no-bypass rule, Pope joined the motion on January 28, 2004). Doc. no. 634.
It is important that the Court recognize the different procedures for resolving the two motions. First, the joint motion seeks termination of the injunction solely on factual grounds. A careful reading of the joint motion reveals a precisely-worded pleading that obviously avoids the issue of whether the no-bypass rule should be ended on constitutional grounds. Even though the joint motion cites Rufo v. Inmates of Suffolk Co. Jail, 502 U.S. 367 (1992) as a basis for the Court to modify an injunction, it is clear that the motion is in fact an effort to terminate the decree under Freeman principles.1 Nowhere in the joint motion is it even suggested that an intervening change in law has occurred since entry of the order. The joint motion concludes by stating:
In light of the changed circumstances described above, the parties jointly request the elimination of those provisions establishing and mandating the use of the no-bypass rule. See Board of Education v. Dowell, 498 U.S. 237, 248-49 (1991) (Judicial oversight of local institutions after a period of compliance should not extend beyond time necessary to remedy the violation); Missouri v. Jenkins, 515 U.S. 70, 99 (1995); People Who Care v. Rockford Board of Ed., 246 F.3d
1See Freeman v. Pitts, 503 U.S. 467 (1992). 4

Case 2:68-cv-02709-MHT-CSC Document 758-1 Filed 09/09/2005 Page 5 of 15
1073, 1075 (7th Cir. 2001). The joint motion is actually a Freeman motion to terminate an institutional reform decree. Under Freeman, the Court examines a motion to terminate a decree utilizing a three-prong standard of: (1) whether there has been full and satisfactory compliance with the Court’s outstanding orders; (2) whether retention of judicial control is necessary and practical to achieve compliance; and (3) whether the governmental entity has demonstrated its good-faith commitment to the whole of the Court’s orders and to the constitutional provisions at issue. See Doc. no. 634 at 12, quoting Freeman v. Pitts, 503 U.S. 467, 491 (1992), also citing U.S. v. City of Montgomery, 948 F.Supp. 1553, 1563 (M.D. Ala. 1996). In order for this Court to grant the joint motion it must make detailed factual findings of “changed circumstances” and make extensive determinations of compliance based upon the above-stated factors. In our view, substantial factual issues remain to be resolved before the Court can enter a Freeman-type order terminating this case. Such a decision would require extensive (and endless) discovery and fact finding. By contrast, Pope’s motion to modify the Frazer injunction is pursuant to the standards set forth in Rufo v. Inmates of Suffolk Co. Jail, 502 U.S. 367, 383 (1992) and Ensley Branch v. Seibels, 31 F.3d 1548 (11th Cir. 1994) and with particular regard to the specific changes that have occurred in the law since the entry of the injunction. This Court need not delve extensively into the complex factual analyses proffered by the United States and State of Alabama and contested by the Crum/Reynolds intervenors to grant Pope’s motion. Stated otherwise, Timothy Pope has put before the Court a motion by which the Court can (and should) end the no-bypass rule on undisputed grounds. The discovery that has been conducted in this case thus far has not addressed the broader issues of whether the State is due to be finally released from the decree pursuant to the Freeman
5

Case 2:68-cv-02709-MHT-CSC Document 758-1 Filed 09/09/2005 Page 6 of 15
factors, above.2 In our view this case is in a similar procedural posture to that in the Ensley Branch litigation
when the 11th Circuit rendered its 1994 opinion. A longstanding race-based remedy is in place that clearly no longer meets constitutional standards. The Ensley Branch court held that such an order should be modified to eliminate race-based remedies and ensure the implementation of race-neutral remedies. Under such circumstances, modification is warranted:
We hold that, in the unusual circumstances of this case, the intervenors may bring challenges based on current law, regardless of whether that law has changed. Accordingly, modifications are warranted if necessary to prevent the decrees from violating governing constitutional standards – whether or not those standards had already been announced at the time the decrees were entered. Ensley Branch NAACP v. Seibels, 31 F. 3d 1548, 1579 (11th Cir. 1994). The same “unusual circumstances” apply here because intervenor Pope, who was not an original party in this litigation, may now be granted modification “to make constitutional an otherwise unconstitutional decree.” See id. III. STANDARD FOR GRANT OF SUMMARY JUDGMENT This motion seeks summary judgment pursuant to Fed.R.Civ.P. 56. A court may grant summary judgment only when the submissions in the record “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “The inquiry performed is the threshold inquiry of determining whether there
2Notwithstanding verbal and/or written comments made by the State defendants in recent status conferences or various filings, it has never moved the Court for relief from the no-bypass rule on constitutional grounds. Counsel for Pope does not believe that the United States has adopted this position, first set forth by Pope in his motion to intervene, in any respect. See also Response of Plaintiff United States, Doc. no. 756.
6

Case 2:68-cv-02709-MHT-CSC Document 758-1 Filed 09/09/2005 Page 7 of 15
is the need of a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The party opposing summary judgment must “do more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 485 U.S. 574, 586 (1986). If the opposing party's “evidence is merely colorable or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50. However, in determining whether summary judgment is appropriate, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. The inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52.
At issue here is the constitutionality of a race-based remedy under strict-scrutiny standards. That issue is a question of law. Donaghy v. City of Omaha, 933 F.2d 1448 (8th Cir. 1991). IV. UNDISPUTED FACTS
Pope submits that the legality of a race-based remedy is a question of law and the Court may address this matter based on the undisputed facts.
A. It is undisputed that the no-bypass rule is a race-conscious remedy. As stated above, the no-bypass rule sets forth clearly defined benefits for black applicants and conversely disadvantages white applicants. As stated plainly by this Court, “the no-bypass rule is a race-conscious provision . . .” Doc. no. 723 at 5. In relevant part the Frazer injunction states:
2. Negro applicants shall be appointed to positions other than
7

Case 2:68-cv-02709-MHT-CSC Document 758-1 Filed 09/09/2005 Page 8 of 15
custodial, domestic, laborer or laboratory aide, when said Negro applicants are listed on a Certification of Eligibles, unless higherranking white applicants on the certificate are appointed to fill the vacancy (or all the vacancies) in the listed position, or unless the defendants determine that the Negro applicant is not qualified to perform the duties of the position, or is otherwise not fit for the position.
3. Defendants shall not appoint or offer a position to a lower-ranking white applicant on a certificate in preference to a higher-ranking available Negro applicant, unless the defendants have first contacted and interviewed the higher-ranking Negro applicant and have determined that the Negro applicant cannot perform the functions of the position, is otherwise unfit for it, or is unavailable. In every instance where a determination is made that the Negro applicant is unfit or unavailable, documentary evidence shall be maintained by the defendants that will sustain that finding.
U.S. v. Frazer, 317 F.Supp. 1079, 1091 (M.D. Ala. 1970).
The above-stated provision remained in effect without interruption since 1970 until it was
preliminarily enjoined on May 20, 2005. Doc. no. 735. The motion to modify asks this Court to
permanently end the rule and ensure that the State’s selection procedures are race neutral.
B. It is undisputed that the Frazer Rule is applied by the State in its employment
decisions.
Attached herein as Exhibit A is the affidavit of intervenor Timothy D. Pope. The affidavit
provides evidence of how the no-bypass rule adversely affected his employment. It is undisputed
that Pope was certified to the Alabama Department of Corrections for the promotional position of
Correctional Officer II and was interviewed for the job. Id. at ¶2, also Exh. A.1. It is undisputed that
Pope was identified in ALDOC’s interview process as the most appropriate/qualified candidate for
the position. Id. at ¶3, also Exh. A.2 and A.3. It is undisputed that ALDOC selected Pope for the
promotion and later rescinded that offer. Id. at ¶4, also Exh. A.3. It is undisputed that the promotion
8

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was rescinded solely because of Pope’s race. Id. at ¶¶ 5-6, also Exh. A.3. It is also undisputed that

the black candidate who was eventually appointed was not ranked higher than Pope, but rather was

in the same band of the employment register as Pope. Id. at ¶6, also Exh. A.3. It is undisputed that

Pope filed a complaint of race discrimination with the Equal Employment Opportunity Commission

(EEOC) and received a right-to-sue letter on December 4, 2002. Id. at ¶7, also Exhs A.3 and A.4.

V.

THE NO-BYPASS RULE FAILS TO MEET THE STANDARDS OF STRICT SCRUTINY.

As previously stated by this Court:

First, the no-bypass rule is a race-conscious provision and as such, must meet “strict scrutiny” standards and must be “narrowly tailored.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S. Ct. 2097 (1995); if logic and common sense are to apply, the nobypass rule cannot be both narrowly tailored and everlasting. Second, the rule has been in effect for approximately 35 years without an independent court review to determine if it continues to meet legal requirements. Because the rule cannot be everlasting, this circumstance is impermissible; in other words, the rule simply cannot continue without a court finding that it continues to meet the demanding requirements for race conscious relief.

Doc. no. 723 at 5-6.

As the Court stated above, the no-bypass rule differentiates among job applicants solely on

the basis of each applicants’ race and is utilized to make employment decisions by the State of

Alabama. It is undisputed that the State has applied this rule granting benefits to black applicants

and excluding some white applicants from consideration for positions for which they are certified.

Because the rule affords a preference solely to black applicants, it must be subjected to strict

scrutiny. See Exhibit A.

In Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), the Supreme Court explained,

“With Croson, the Court finally agreed that the Fourteenth Amendment requires strict scrutiny of

9

Case 2:68-cv-02709-MHT-CSC Document 758-1 Filed 09/09/2005 Page 10 of 15
all race-based action by state and local governments.” Id. at 515 U.S. at 222. However, the Croson decision left some uncertainty with respect to review for federal racial classifications. Adarand clarified the issue in the boldest of terms in holding:
Accordingly, we hold today that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests. Id. at 227. In this matter, the plain language of the injunction proves that there can be no serious dispute that the no-bypass rule “classifies” applicants by race and discriminates among them on the basis of race. Therefore, it must be determined whether the rule can survive strict scrutiny. Strict scrutiny requires that a governmental action “be based upon a ‘compelling governmental interest’ and must be ‘narrowly tailored’ to achieve that interest.” Ensley Branch, 31 F.3d at 1564, quoting S.J. Groves and Sons Co. v. Fulton County, 920 F.2d 752, 767, (11th Cir. 1991), also citing City of Richmond v. J.A. Croson Co., 488 U.S. 469, 498-508 (1989). Whether the no-bypass rule furthers a compelling governmental interest need not be fully addressed here because the rule so clearly fails the narrow-tailoring requirement of strict scrutiny. But, we do note that the Crum/Reynolds intervenors’ expert, Dr. Edwin L. Bradley testified that he agreed with statistics that indicated that by 1990 there was an increase of no less than 33% of African-Americans in the employment of each State agency studied in the past 33 years, see deposition of Edwin L. Bradley, attached as Exhibit B at 492; that more 70% of the State’s agencies have more than 20% African-American employees, id. at 495-96; that by 1990 (with the exception of the EEO-III category) the percentage of African-American employees in each EEO category was
10

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higher than the percentage of African-Americans for the same EEO category in the State’s general workforce, id. at 497-98; and that in 2000 and 2003 the percentage of African-Americans employed by the State in all EEO categories exceeded the percentage of African-Americans in Alabama’s workforce, id. at 498. This is hardly the situation faced by Judge Johnson when the rule was entered in 1970.
Under strict scrutiny’s narrow tailoring prong a racial classification must be evaluated against the following factors: • “the necessity for the relief and the efficacy of alternative remedies” • “the flexibility and duration of the relief, including the availability of waiver provisions” • “the relationship of numerical goals to the relevant labor market” • “the impact of the relief on the rights of [innocent third parties]” See Ensley Branch at 1569, citing Howard v. McLucas, 871 F.2d 1000, 1008 (11th Cir. 1989), quoting U.S. v. Paradise, 480 U.S. 149, 171 (1987).
The Frazer injunction simply cannot pass strict scrutiny considering that it classifies candidates on the basis of race and provides and denies hiring and promotional benefits on the basis of race. This racial classification (and preference) is not supported by a compelling governmental interest or by a strong evidentiary showing of ongoing discrimination, see Ensley Branch, 31 F.3d at 1564-68, nor is it narrowly tailored to end any ongoing discrimination: • the Frazer preference has continued now for over 25 years with no fixed duration; • it ignores effective race-neutral alternatives (such as the development of valid, race-neutral
selection procedures); • it has no relationship whatsoever with the relevant labor market;
11

Case 2:68-cv-02709-MHT-CSC Document 758-1 Filed 09/09/2005 Page 12 of 15
• it has severe impact on the rights of innocent third parties (here, non-black candidates) by the diminution of job opportunities; and
• the rule is absolute, there are no flexible waiver provisions. See id. at 1569. Under the Supreme Court precedents of Croson and Adarand, as well as Ensley Branch, the Frazer injunction is plainly unconstitutional. VI. THE COURT SHOULD VACATE THE NO-BYPASS RULE AND ENSURE THAT DEFENDANTS HAVE
RACE-NEUTRAL SELECTION PROCEDURES. As noted above, this case is in much the same posture as that before by the Eleventh Circuit in Ensley Branch v. Seibels, 31 F.3d 1548 (11th Cir. 1994). The defendants have been under orders to use race as a criteria in the selection process for some thirty years. The Frazer injunction also requires that the State utilize lawful selection procedures.3 The State should be required to demonstrate that it has complied with that part of the Frazer injunction requiring race-neutral selection procedures. In Ensley Branch, the Court found that the failure of the district court “to set deadlines for the development of valid selection procedures . . . was an abuse of discretion.” 31 F.3d 1573. We believe the Court should require the defendants to promptly demonstrate their compliance with that
3The 1976 injunction provides, at ¶ 10: No written test shall be used as a ranking device, unless and until it has been validated in accordance with the Guidelines on Employee Selection Procedure promulgated by the Equal Employment Opportunity Commission, 29 C.F.R. 1607, et seq., and approved by this Court. Defendants shall validate all written tests used by them as screening devices in accordance with the EEOC Guidelines. The results of all validation studies shall be submitted to opposing counsel for possible objections and to this Court for approval. 12

Case 2:68-cv-02709-MHT-CSC Document 758-1 Filed 09/09/2005 Page 13 of 15
part of the injunction entered in 1976 requiring the adoption of lawful procedures. To our knowledge, the Court has not approved the defendants’ selection procedures as validated in accord with the Guidelines. The Court may wish to appoint a special master to review the defendants’ compliance with that aspect of the injunction. See Ensley Branch at 1574 (“if the process of approving selection procedures places undue strain on the district court’s resources, it may appoint a special master to assist with the task.”).
CONCLUSION The Frazer no-bypass rule grants preferences to black applicants for State employment solely upon the basis of their race. Pursuant to the Supreme Court’s holdings in Croson and Adarand, such actions must pass constitutional strict scrutiny and must be “narrowly tailored to further that interest.” Adarand, 515 U.S. at 235. As written and applied, the no-bypass rule is “everlasting” and “has been in effect for approximately 35 years without an independent court review to determine if it continues to meet legal requirements.” Doc. no. 723 at 6. Based upon the undisputed facts set forth above and evidentiary submission attached to this brief, intervenor Timothy D. Pope’s motion to modify the Frazer injunction, to vacate its raceconscious provisions, is due to be granted on summary judgment as a matter of law and undisputed fact. There is no necessity for the Court to rule on the complex statistical analyses offered in the State defendants’ and United States’ joint motion to terminate, nor is the joint motion ripe for consideration on its stated grounds of whether the State has met the factors for termination as enunciated under Freeman v. Pitts. The Court should grant summary judgment in favor of intervenor Pope’s motion to modify the Frazer injunction. Doc. No. 677. Moreover, the Court should ensure that race-neutral procedures are in place before terminating this case.
13

Case 2:68-cv-02709-MHT-CSC Document 758-1 Filed 09/09/2005 Page 14 of 15

Respectfully submitted,

Of Counsel FITZPATRICK, COOPER & BROWN, LLP Farley Building, Suite 600 1929 Third Avenue North Birmingham, Alabama 35203 Phone: (205) 320-2255 Fax: (205) 320-7444

s:/ Gary L. Brown Raymond P. Fitzpatrick, Jr. (FIT001) J. Michael Cooper (COO037) Gary L. Brown (BRO186)
Attorneys for Plaintiff-Intervenor Timothy D. Pope

14

Case 2:68-cv-02709-MHT-CSC Document 758-1 Filed 09/09/2005 Page 15 of 15

CERTIFICATE OF SERVICE
I hereby certify that on the 9th day of September 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following (or by U.S. Mail to the non-CM-ECF participants, as indicated):

Hon. Alex Acosta (by U.S. Mail) U.S. Assistant Attorney General Civil Rights Division Employment Litigation Section - PHB 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530
Hon. Troy King (by U.S. Mail) Attorney General of the State of Alabama State Capitol 600 Dexter Avenue Montgomery, Alabama 36130
Jay D. Adelstein, Esq. U.S. Department of Justice, Civil Rights Division Employment Litigation Section - PHB 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530
Robert L. Wiggins, Esq. Robert F. Childs Jr., Esq. Ann K. Wiggins, Esq. Russell W. Adams, Esq. Kell A. Simon, Esq. Wiggins, Childs, Quinn & Pantazis, P.C. The Kress Building 301 19th Street North Birmingham, Alabama 35203

Alice Ann Byrne, Esq. State Personnel Department 64 North Union Street Montgomery, Alabama 36130
Christopher W. Weller, Esq. Capell, Howard, Knabe & Cobbs, P.A. P.O. Box 2069 Montgomery, Alabama 36102-2609
David R. Boyd, Esq. J. Dorman Walker Jr., Esq. Balch & Bingham, LLP P.O. Box 78 Montgomery, Alabama 36101-0078
William F. Gardner, Esq. Joe Musso, Esq. Cabaniss Johnston Gardner Dumas & O’Neal 700 Park Place Tower Birmingham, Alabama 35203

s:/ Gary L. Brown Of Counsel

15

 
 317 F.Supp. 1079 (1970)
UNITED STATES of America by John N. MITCHELL, Attorney General, Plaintiff, v.
John S. FRAZER, as Director, Alabama Personnel Department, Tom J. Ventress, as Chairman, State Personnel Board, James A. Simpson, as a Member, State Personnel
Board, Ralph W. Adams, as a Member, State Personnel Board, Frank House, as Commissioner and Director, Alabama Department of Pensions and Security, Robert G. Kendall, Jr., as Director, Alabama Department of Industrial Relations, Ira L. Myers, as State Health Officer and Director, Alabama Department of Public Health, Ernest Stone, as Superintendent and Director, Alabama Department of Education, Stonewall B. Stickney, as State Mental Health Officer and Director, Alabama Department of Mental Health, and J.
Frank Manderson, as Director, Alabama Department of Civil Defense, Defendants.
Civ. A. No. 2709-N.
United States District Court, M. D. Alabama, N. D.
July 28, 1970.
10801 *1080 *1081 Jerris Leonard, Asst. Atty. Gen., U. S. Dept. of Justice, David L. Rose, Harold Himmelman and Andrew J. Ruzicho, Attys., U. S. Dept. of Justice, Washington, D. C., and Ira DeMent, U. S. Atty., Montgomery, Ala., for plaintiff.
MacDonald Gallion, Atty. Gen. of Alabama, Gordon Madison, Mary Lee Stapp, William N. McQueen, Bernard F. Sykes and Jamie L. Pettigrew, Asst. Attys. Gen., J. Eugene Foster, Gen. Counsel, Dept. of Industrial Relations, Thomas W. Thagard, Jr., Sp. Asst. Atty. Gen., of Smith, Bowman, Thagard, Crook and Culpepper, Montgomery, Ala., James A. Simpson, of Lange, Simpson, Robinson & Somerville, Birmingham, Ala., pro se, for defendants.
MEMORANDUM OPINION
FRANK M. JOHNSON, Jr., Chief Judge.
The United States of America, acting through its Attorney General, brings this action to enforce the requirement of federal statutes and regulations that State personnel who are engaged in the administration of federally financed grant-in-aid programs be recruited, hired and promoted or demoted on a merit basis, without discrimination on the ground of race or color.[1]
The defendants Ventress, Simpson and Adams are members of the Alabama State Personnel Board. The defendant John S. Frazer is the Personnel Director and the head of the Personnel Department of the State of Alabama. As Director, Frazer, together with the State Personnel Board, is responsible for the administration of the Alabama Merit system. The Board has the authority and responsibility of adopting and amending rules and regulations for the administration of the Alabama Merit System. Defendants House, Kendall, Myers, Stone, Stickney and Manderson are the heads of the State Departments of Pensions and Security, Industrial Relations, Public Health, Education, Mental Health, and Civil Defense, respectively. These departments administer the federal grant-in-aid programs which are subject to the federal merit standards statutes set out above in footnote 1. Each of the defendants has the responsibility0907acting within the rules and regulations for the administration of the Alabama Merit System as promulgated by the Alabama State Personnel Board and as administered by the Alabama State Personnel Director0907for the selection, appointment, promotion, demotion and transfer of personnel and for the recruitment of personnel in his department or agency.
The case is now submitted upon the several issues formulated by the pleadings, the evidence, and the briefs and 1082 *1082 arguments. The evidence consisted of extensive depositions and exhibits thereto and the oral testimony

and exhibits thereto offered in support of and in opposition to the respective positions of the parties. This Court, as authorized by Rule 52, Federal Rules of Civil Procedure, now incorporates in this memorandum opinion the appropriate findings of fact and conclusions of law.[2]
I
The main thrust of the defense in this case is a challenge to the right of the United States to bring this action. The defendants made their challenge by motions contending that the United States does not have the authority to enforce by judicial proceedings the terms and conditions which Congress, by statute, and federal officials, by regulation (acting pursuant to congressional authority), have attached to the expenditure of federal funds. The defendants also challenge the validity of the federal regulation, 45 C.F.R. 70.4, promulgated by the United States Secretaries of Health, Education and Welfare, Labor and Defense, which requires that states administering programs that receive federal assistance pursuant to the federal merit standards statutes adopt laws, rules and regulations expressly prohibiting discrimination on the ground of race, color, national origin, religious or political affiliation. This regulation also requires that the states provide appropriate procedures for appealing cases of alleged discrimination on any of those grounds.
When reviewing the sufficiency of a complaint against a motion to dismiss, the allegations of the complaint are to be taken as true. No citation of authorities is necessary to sustain this basic proposition. Thus, from the allegations of the complaint, defendants have followed and continue to follow a policy of racial discrimination against Negroes in the selection and appointment of employees in the Alabama agencies here involved. Furthermore, this Court is informed by brief of the United States 0907and this is not denied by the defendants 0907that the six State agencies involved in this case receive and administer annually approximately $110,000,000 in federal funds under the merit standards statutes. There is no question that these discriminatory practices engaged in by the defendants, as the United States alleges, constitute violations of the merit system requirements of federal law. 45 C.F.R. 70.4.
The defendants' argument that the enactment of Titles VI and VII of the Civil Rights Act of 1964 "may have nullified" the authority of the Secretaries of Defense, Health, Education and Welfare, and Labor to adopt 45 C.F.R. 70.4 is without merit. Title VII, "For the purposes of this title", defines the term "employer" in such a manner as to exclude states or political subdivisions. Section 701(b), 42 U.S.C. § 2000e(b). This exclusion from the coverage of Title VII was not intended to repeal the authority conferred by other statutes. The limited definition of "employer" was consistent with the congressional concern, under Title VII, to prohibit discrimination by commercial enterprises. Local Union No. 12, United Rubber Cork, Linoleum, and Plastic Workers of America, A.F.L.-C.I.O. v. NLRB, 368 F.2d 12 (5th Cir. 1966), cert. denied 389 U.S. 837; 88 S.Ct. 53, 19 L.Ed.2d 99; United States v. Jefferson County Board of Education, 372 F.2d 836, 883 (5th Cir. 1966), where the United States Court of Appeals for the Fifth Circuit has held that Title VII was not intended to preempt or repeal other provisions of law prohibiting racial discrimination.
1083 *1083 It is true that Section 604 of Title VI makes it clear that Title VI was not intended to be applicable to the employment practices of recipients of federal assistance "except where a primary objective of the Federal assistance is to provide employment" or where discrimination in employment causes discrimination to the beneficiaries. United States v. Jefferson County Board of Education, supra. However, the language of Section 604 of Title VI also clearly reflects that that section was not intended to detract from any authority that federal officials might have under other provisions of the law. Thus, neither Title VI nor Title VII preempts or limits the authority that federal officials have to take affirmative action, including the filing of civil actions, designed to reduce or eliminate racial discrimination.
Another substantial challenge0907and one the defendants strenuously urge 0907 concerns whether the United States has the authority to enforce by a judicial proceeding the terms and conditions set forth in federal statutes and regulations requiring states to follow merit personnel standards. This Court is clear to the conclusion that the United States does have standing to seek judicial enforcement of the terms and conditions of grants of federal property and that the administrative remedy of termination of assistance was not intended to be and is not exclusive. The argument of the State of Alabama, if it prevailed, would necessitate this Court's telling the United

States of America that the only remedy it has in this case is to administratively terminate the federal funds of $110,000,000 a year provided to the State agencies here concerned for assistance to the aged, to families with dependent children, to crippled children's services, for aid to the blind, aid to the permanently and totally disabled, and for other similar programs administered by the defendants for the benefit of United States citizens residing in the State of Alabama.
It is settled law that the United States has the authority to fix the terms and conditions upon which its money allotments to states shall be disbursed. King v. Smith, 392 U.S. 309, 333 N. 34, 88 S.Ct. 2128, 20 L.Ed.2d 1118. Upon this point, the United States Supreme Court stated:
There is of course no question that the Federal Government, unless barred by some controlling constitutional prohibition, may impose the terms and conditions upon which its money allotments to the States shall be disbursed, and that any state law or regulation inconsistent with such federal terms and conditions is to that extent invalid. See Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 295, 78 S.Ct. 1174, 1185, 2 L.Ed.2d 1313 (1958); State of Oklahoma v. United States Civil Service Comm'n, 330 U.S. 127, 143, 67 S.Ct. 544, 553, 91 L.Ed. 794 (1947).
The law is also clear that the grant of federal assistance may be made upon conditions that are attached to the grant and that the acceptance by the recipient of the grant to which the conditions and stipulations are attached creates an obligation on the part of the recipient to perform the conditions. United States v. Northern Pacific Ry. Co., 256 U.S. 51, 41 S.Ct. 439, 65 L.Ed. 825, and the cases therein cited. On this point the Supreme Court of the United States stated in McGee v. Mathis, 4 Wall. 143, 71 U.S. 143, 155, 18 L.Ed. 314:
It is not doubted that the grant by the United States to the State upon conditions, and the acceptance of the grant by the State, constituted a contract. All the elements of a contract met in the transaction0907competent parties, proper subject-matter, sufficient consideration, and consent of minds. This contract was binding upon the State. * * *
There is no controlling law to support the defendants' argument that the United States has no standing to enforce 1084 its contractual rights in court *1084 in the absence of specific statutory authority to do so. The law is to the
contrary. Rex Trailer Co. v. United States, 350 U.S. 148, 151, 76 S.Ct. 219, 100 L.Ed. 149. It has long been recognized that the United States has the right to bring suit to require the recipient of federal grants to comply with the terms and conditions of the grant. United States v. City and County of San Francisco, 310 U.S. 16, 60 S.Ct. 749, 84 L.Ed. 1050.
Aside from the contractual aspects of the relationship between the United States and the State of Alabama concerning these grants, there is no necessity for specific statutory authority in order to permit the United States to bring this action. The federal district courts have jurisdiction of any case in which the United States is a party plaintiff, 28 U.S.C. § 1345, and it has been determined upon numerous occasions by the courts of our land that the Attorney General may sue on behalf of the United States by virtue of his office if the United States has an interest to protect. 28 U.S.C. §§ 516-519; Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407.
Here, the interest of the United States is to enforce the terms and conditions of grants of federal funds, namely the $110,000,000 of federal funds being channeled into the State of Alabama for administration and disbursement to needy American citizens by the agencies and the defendants here involved. One of those terms and conditions is that the funds be administered by persons selected on the basis of their merit and fitness rather than on the basis of their race or color. Thus, the interest of the United States in these federally financed programs is not insubstantial, rather it is so considerable that the Government, through its duly constituted officials, including the Attorney General of the United States, has a constitutional obligation to eliminate racial discrimination in their administration. Failure on the part of any of these Government officials to take legal action in the event that racial discrimination does exist would constitute dereliction of official duty.
Defendants' reliance upon United States v. Madison County Board of Education, 219 F.Supp. 60 (N.D.Ala.1963), aff'd on other grounds, 326 F.2d 237 (5th Cir. 1964), cert. denied 379 U.S. 929, 85 S.Ct. 324, 13 L.Ed.2d 341, is misplaced. Here, the United States is seeking to enforce the terms and conditions which Congress expressly

imposed upon the expenditure of federal funds. To put it another way, the United States is merely attempting to enforce the express terms and conditions which the State of Alabama agreed to meet in receiving federal funds. In the Madison County case, there was no express obligation of a contractual nature which the United States was seeking to enforce. Furthermore, see the discussion of United States v. Madison County Board of Education, supra, in Bossier Parish School Board v. Lemon, 370 F.2d 847, 850-851 (5th Cir. 1967).
II
The evidence in this case reflects that since 1939 the State of Alabama has utilized the same personnel system for its agencies governed by federal merit standards as for other State agencies. The merit standards plan consists of an agreement to comply with the State's statutes and regulations governing personnel practices for all State agencies. In January, 1963, the Secretaries of Defense, Health, Education and Welfare, and Labor, adopted a regulation expressly prohibiting racial discrimination and other nonmerit factors in the employment practices of the State and requiring the adoption by the State of an express statute or regulation prohibiting such discrimination and providing for a system of appeals in such cases.[3] From 1963 until the commencement of this 1085 *1085 lawsuit in June, 1968, federal officials made repeated but unsuccessful efforts to persuade defendant officials and their predecessors to adopt a regulation expressly prohibiting discrimination on the ground of race or color and containing appropriate provisions for appeals in cases of alleged discrimination.[4] Defendants have repeatedly refused to adopt such a regulation. Alabama is the only state among the fifty states which has refused to adopt such a regulation.
Under the Alabama statutes and regulations governing personnel practices, a person seeking State employment generally is required to take an examination; upon passing the examination, the person's name is placed on the register of eligibles for that position (Title 55, Code of Alabama, §§ 305, 307; Rules of the State Personnel Board). Under the Alabama statutes and regulations, when permanent positions become available, applicants who have passed the examination are certified to the employing agency by the Personnel Department in accordance with their geographical availability and in the order of their rank on the employment registers which were established after the giving of the examinations. Rank is determined by the grade on the examination, plus points for veterans' preference. The State of Alabama follows the "rule of three" under which at least three persons are certified as eligible to the appointing authority; the appointing authority need not select the highest ranking individual available, but must select one from among the top three. The State normally certifies other persons who may be considered among the top three if one or more of the first three eligibles declines or fails to reply. If there is one position available, the appointing authority may select one out of three; if there are two positions available, he may select two from among the top four; and if there are three positions, he may select three from among the top five, and so forth.
The discretion of the appointing officer includes the right to reject an applicant because of his race. This was the unequivocal testimony of John S. Frazer, the Director of the Alabama Personnel Department.
The requirement that persons be certified in the order of their rank on the examination does not apply to temporary positions; for temporary positions, the appointing authority may select any person on the register of those who have passed the examination. When an appointing authority has a vacancy or vacancies, he fills out a form entitled "Request for Certification of Eligibles," and lists the job classification, the location, and the number of vacancies he wishes to fill at that time, and forwards this form to the personnel office of his department. That office forwards the request to the State Personnel Department. The Personnel Department takes the names of persons from its register who are available for work in the geographical area and lists them, in order of their grade, on the certificate and sends the certificate back to the requesting department, together with the application forms of those who are on the certificate. The form includes the race of the applicant. The certificate then becomes a Certification of Eligibles. The personnel office of the requesting department may then indicate on the certificate the names of any persons recently employed elsewhere in the department, where such information is known, and then forward the certificate to the local appointing office.
Under the "rule of three" as applied in Alabama, the appointing officer may select and appoint persons from 1086 among *1086 those available; or, alternatively, he may choose to cancel the certificate if he does not wish to

appoint any of the persons certified, or if the persons he wishes to hire are unavailable or decline the offer. It is the general practice for appointing officers to start at the top of the list and to call or write the person to see whether he is interested; if he is, arrangements are made for an interview. After the interview, the applicant's references are checked, and if they are favorable an offer is made. If the applicant indicates he is not interested or if he declines an offer, he is usually asked to so indicate in writing. If he accepts, the appointment is made.[5] After the vacancies are filled or the certificate exhausted, the certificate is returned to the Personnel Department with appropriate marks to indicate what action was taken for each person.[6] For temporary positions one or more persons, but not necessarily the highest ranking, are certified for each position, and frequently only persons requested by the appointing authority are certified. The "rule of three" is not followed.
II-A
As of July 31, 1968, defendant Departments of Pensions and Security, Health, Mental Health, Education (Crippled Children's Services), Industrial Relations and Civil Defense employed the following full-time, permanent employees in the following classifications:

Clerical Positions (Clerk I and II, Clerk Typist I and II, Clerk Stenographer I and II; and Key Punch Operator I and II)

TOTAL NEGRO

988

1

Semi-Professional, Professional, other Clerical, and Supervisory Positions

2019

26

Custodial, Laborer and Laboratory Helper Classifications

70

67

Defendant Personnel Department employs 29 full-time employees, of whom approximately 20 hold clerical positions. All employees of defendant Personnel Department are white. Forty-nine Negro applicants (whose names and the positions for which they applied are attached hereto as Exhibit "A") for positions other than custodial, domestic, laborer and laboratory helper0907applicants who had passed all examinations and had qualified for the positions which they sought0907were repeatedly passed over for lower-ranking white persons in the selection process for appointments, offers, interviews, and other contacts, usually with the symbol "C" beside their names for "considered" but not selected. For a majority of the Negro applicants, the "passing over" was done without an interview or a telephone call. The experience of these applicants was that they applied for State employment and received no contacts, or received only one or two contacts from State officials, and no job offers, over a period of 18 months or more. A minority (five) of the Negro applicants listed were hired for permanent positions with the State, but were passed over for lower-ranking white applicants for contacts, offers and appointments before finally being hired. In all cases each Negro applicant listed in Exhibit "A" was passed over by officials of defendant departments for lower-ranking white persons for contacts, interviews, offers or appointments on one or more occasions; and most of the applicants so listed were passed over on numerous occasions. White applicants for the same positions with lower-ranking scores and no better qualifications than the Negro applicants who are listed in Exhibit "A" received numerous contacts, interviews and job offers, usually within a short period of time 1087 and frequently on the same day that their names appeared on defendant Personnel Department's *1087 register of eligibles. An examination of the applications submitted by the white applicants and the applications submitted by the Negro applicants reflects that the Negro applicants were as well or better qualified by training and experience as the white applicants who were preferred over them. For 48 of the 49 Negro applicants listed in Exhibit "A", there was no State record indicating any lack of qualification or unfitness. As to the one excepted applicant, there was simply a letter stating that she would "not fit in." All of the 49 Negro applicants listed in

Exhibit "A" were qualified and fit for the positions for which they applied. The defendant officials have given no reasons pertaining to merit that would justify their passing over these applicants. This Court specifically finds that the defendants passed over the 49 Negro applicants listed in Exhibit "A", in favor of lower-ranking white applicants, solely because of their race or color.
The Personnel Department rarely certifies Negro applicants for temporary clerical positions for which they are eligible and available during the period of time their names are kept in the active file; and it frequently does not certify the names of Negro eligibles to permanent positions. This Court now finds that the Negro applicants listed in Exhibit "B" attached to this opinion were discriminated against by the defendants in the selection and appointment process solely on account of their race or color.
The evidence in this case further reflects that Negro eligibles are often placed on the inactive part of the employment register without ever receiving notice of such and are never certified again for vacant positions.
As of July 31, 1968, the defendants employed over 1,000 clerical personnel, only one of whom was a Negro 0907and this in the face of uncontroverted evidence that the defendants had an urgent and constant need for typists, stenographers, and case workers, and even though there were numerous qualified Negro applicants for such positions, including at least 60 Negro applicants listed on the registers for those jobs as of August, 1968. Specifically, those Negro applicants listed in the exhibits to this opinion were passed over by the defendants in favor of lower-ranking white applicants. The evidence is overwhelming that each of the defendants engaged in, and continues to engage in, a systematic pattern and practice of discrimination against qualified Negro applicants for clerical positions, by denying them appointments, offers, certifications and interviews, and by preferring lowerranking white applicants.
II-B
As of July 31, 1968, the Department of Pensions and Security and the Department of Industrial Relations had a total of 1,104 case workers, child welfare workers, employment interviewers and counselors and other semiprofessional and professional full-time employees whose duties include contact with members of the public. Of that total, only 26 were Negroes. As was true in the case of the clerical employees, the defendant Department of Pensions and Security has had and continues to have many vacancies in such positions. With few exceptions, the Department of Pensions and Security and the Department of Industrial Relations assign Negro employees in these classifications to exclusively or predominantly Negro case loads and areas. Except in situations where a vacancy in such classification involves an exclusively or predominantly Negro case load or area, defendant Department of Pensions and Security has passed over qualified Negro applicants for such positions in favor of lower-ranking white applicants for appointments, offers, interviews and other contacts.[7]
1088 *1088 It follows therefore that the Alabama Department of Pensions and Security and the Department of Industrial Relations have engaged in selection and appointment practices based solely upon race or color, not upon merit.
II-C
For several years prior to the institution of this case, the Department of Public Health maintained two related classifications, Laboratory Helper and Laboratory Assistant. The Laboratory Helper position had only one level, but the Laboratory Assistant position had two levels, with level I offering a prospect of advancement to Laboratory Assistant II. The educational requirement for Laboratory Assistant I was a high school education, preferably with laboratory science courses, while the requirement for Laboratory Helper was, first, a sixth- and then later a tenthgrade education.
As of July 31, 1968, there were 41 Laboratory Helpers (now referred to as Aides) employed by the Department of Public Health, all of whom were Negroes; the Laboratory Assistants were white. Of the 41 Negro Laboratory Helpers at that time, at least 24 were high school graduates, and many had taken laboratory science courses. At all times material in this case and prior to the filing of this lawsuit, the Laboratory Helper position has been an all-

Negro position, filled only with Negroes, and the Laboratory Assistant classification has been a white position filled only with white employees. As of August, 1968, the defendants reorganized the classifications. Laboratory Helpers became Laboratory Aides I and II, and Laboratory Assistants I and II became Laboratory Technicians I, II and III. The Laboratory Aide I and II positions are now filled only with Negroes, while the Laboratory Technicians I, II and III positions are now filled only with white persons.
All of the skills required for performance of Laboratory Assistant positions were taught on the job; Laboratory Helpers were not taught these skills nor given an opportunity to learn them. The evidence reflects that the Personnel Officer of the Health Department had arbitrarily taken the position that Negro applicants were not qualified for positions other than Laboratory Helpers. An example of this practice is reflected in the case of employee Ruth Murphy, who has been employed by the Health Department for twenty-five years. She has a ninth-grade education, and has been a Laboratory Aide I for only a few months. For all the prior time she was a Laboratory Helper, although she has performed for more than ten years all the normal duties of Stockroom Clerk, and has performed these duties alone for most of that period. She has never taken the examination for Stockroom Clerk, and, in fact, she was not advised to take the examination, or told that the position was available to her, until approximately two weeks prior to the hearing in this case.[8] This means, of course, that the Alabama Health Department has maintained and continues to maintain a racial policy and practice of keeping the Laboratory Helper position as an all-Negro position and of placing all Negro employees of the Laboratory into only that position, or custodial positions, and of taking such action solely on the basis of race or color.
III
The evidence further reflects that the defendant agencies have traditionally maintained facilities in their buildings on a racially segregated basis. The lunchroom and rest room facilities were maintained and operated on a segregated basis at least until December, 1968, well after the institution of this lawsuit.
1089 The Administrative Building and the State Office Building in Montgomery, *1089 Alabama, among other buildings, are owned by the Alabama Building Corporation, also known as the Alabama Building Authority, a public corporation comprised of State officials, including the Governor and the Attorney General.[9] The buildings were constructed with public funds and leased to defendant agencies. Under the lease the Corporation may enter into leases for concessions, including cafeterias or lunchrooms, and the Alabama State Employees Association operates the cafeterias in these buildings and the State Service Division, the rest rooms.
Negro persons are turned away from the cafeterias when they do not have an employee identification card, or unless they are accompanied by white persons; white persons are not required to show an identification card. Negro employees who work in cafeterias have been advised not to eat there, and they have not done so; the Negro employees who patronize the cafeterias buy their lunches at a window and eat in the hallways; white persons do not follow this practice. Upon their employment, the white employees of the defendant departments and other State agencies are issued cards by their supervisors. The cards identify them as members of the Alabama State Employees Association and are issued without the employees' requesting them. Negro employees have not been issued membership cards in the Alabama State Employees Association. No notice has been given to the Negro State employees that they are free to use the cafeterias; the contrary is reflected by the evidence.
The defendants have participated in the procedures by which the cafeterias in the buildings in which their employees work are operated on a racially discriminatory basis. The defendants have failed to take appropriate action to ensure that all their employees have access to such facilities without regard to race or color.
IV
The defendants have consistently discriminated in their recruitment practices. For example, the defendants administer State examinations for employment in 15 regular locations throughout the State of Alabama, of which 9 are at predominantly white high schools, 5 are at perdominantly white colleges, business schools, and the

University of Alabama, and one at the Jefferson County Courthouse. Of more than 800 entries on the regular mailing list of the defendant Personnel Department only 18 were identifiably Negro institutions or persons. There are no mailings to newspapers or radio stations with predominantly Negro clientele. Furthermore, the defendants have not sought to hire graduates of predominantly Negro schools, such as Alabama State College, Wenonah State Technical Trade School, Wenonah State Junior College, and Booker T. Washington Business College. As a matter of fact, the evidence reflects that the defendants have had virtually no contact with these and other similar institutions. In contrast, the defendants have engaged in active recruiting at predominantly white institutions, including white high schools and colleges. The defendants' methods of advertising employment opportunities do not reach substantial portions of the Negro population of Alabama. The advertising and recruiting practices of the defendants tend to perpetuate the existing racial patterns of employment. These practices have resulted in discrimination against Negro citizens on the ground of their race or color.
V
Upon these findings, this Court now concludes that it has jurisdiction of this action, 28 U.S.C. § 1345, and that, as stated earlier, the United States has the authority to fix the terms and conditions upon which grants of federal assistance to states shall be disbursed.
1090 The defendants' systematic refusal to appoint qualified Negro applicants and *1090 their appointment of and preference for lower-ranking white applicants constitute unlawful racial discrimination. United States v. Jefferson County Board of Education, supra. This is a clear violation of the equal protection clause of the Fourteenth Amendment. Likewise, the defendants' practice of passing over Negro applicants for lower-ranking white applicants constitutes unlawful racial discrimination in violation of the Constitution of the United States, and their policy of assigning Negro case workers and other semi-professional employees to work exclusively or predominantly with Negroes is violative of the Constitution of the United States. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873. See also Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968).
The recruiting and advertising practices of the defendants are discriminatory and perpetuate the effects of past discrimination. They are likewise unlawful.
Under such circumstances as exist in this case, the courts have the authority and the duty not only to order an end to discriminatory practices but also to correct and eliminate the present effects of past discrimination. Local 53 of International Association of Heat and Frost Insulators and Asbestos Workers v. Vogler et al., 407 F.2d 1047 (5th Cir. 1969).
The defendants' practice of segregating employees by race in the use of facilities such as rest rooms, snack bars, and cafeterias, is a clear case of racial discrimination. It is unlawful. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961).
The racial discrimination in this case has so permeated the employment practices of the defendants that this Court finds it necessary to enter a detailed and specific decree which will not only prohibit discrimination but which will also prescribe procedures designed to prevent discrimination in the future and to correct the effects of past discrimination. A decree will be entered accordingly.
DECREE
Pursuant to the findings of fact and conclusions of law made and entered in this case this date, it is the order, judgment and decree of this Court:
I. That the defendants, John S. Frazer, as Director, Alabama Personnel Department; Tom J. Ventress, as Chairman, State Personnel Board; James A. Simpson, as a Member, State Personnel Board; Ralph W. Adams, as a Member, State Personnel Board; Frank House, as Commissioner and Director, Alabama Department of Pensions and Security; Robert G. Kendall, Jr., as Director, Alabama Department of Industrial Relations; Ira L. Myers, as State Health Officer and Director, Alabama Department of Public Health; Ernest Stone, as

Superintendent and Director, Alabama Department of Education; Stonewall B. Stickney, as State Mental Health Officer and Director, Alabama Department of Mental Health, and J. Frank Manderson, as Director, Alabama Department of Civil Defense, their agents, officers, successors in office, employees and all persons acting in concert or participation with them, be and they are hereby permanently enjoined from engaging in any employment practices, including recruitment, examination, appointment, training, promotion, retention, or any other personnel action, for the purpose or with the effect of discriminating against any employee, or actual or potential applicant for employment, on the ground of race or color.
II. It is further ordered that each of said defendants be and is hereby enjoined from failing to take the following action:
1. Each of the following named Negro applicants shall be offered the first available position with the defendants in the area of his geographical availability, in a classification and at a rate of pay which he would now have but for the racial discrimination found in the opinion and order of this Court made and entered this date:

1091 *1091 APPLICANT Crawford, Etta M. Harris, Annie R. Jarrett, Lee E. King, Doris M. Larkin, Annie L. Lewis, Fred Douglas Newsome, Kathryn Parker, James M. Roberson, Emma Jean Graham, Ophelia P. Gray, Omelia G. Green, Loretta W. Brown, Brenda Rand Chaney, Josephine Curry, Martha Jean Holman, Sadie Bell Jones, Dorothy McKee
Mahone, Carolyn

JOB CLASSIFICATION Clerk Messenger Clerk Messenger Clerk Messenger Clerk Messenger Clerk Messenger Clerk Messenger Clerk Messenger Clerk Messenger Clerk Messenger Clerk I Clerk I Clerk I Clerk Typist I Clerk Typist I Clerk Typist I Clerk Typist I Clerk Typist I Clerk Stenographer I Clerk Typist I

Mays, Marie Pasley, Angeline Perkins, Delores A. Richardson, Bernice
Williams, Clara Bell Williams, Sharon Joan Wilson, Janifer Winn, Willie Beatrice Gordon, Evelyn Louise
Jones, Jacqueline Warren Miller, Lottie M.
Sterling, Essie Mae
Crawford, Dorothy Thomas Williams, Francina L. Baskin, Inez Jessie Bass, Hazel Ruth Wilson, Catherine Bolton, Lizzie Charles Broughton, Rosie Chambliss, Marguerite P. Cooper, Carolyn A. Crenshaw, Willie David Crews, Willie L. Davis, Charles

Clerk Typist I Clerk Typist I Clerk Typist I Clerk Typist I Clerk Stenographer I Clerk Typist I Clerk Typist I Clerk Typist I Clerk Typist I Clerk Typist I Clerk Stenpgrapher I Clerk Stenographer I Clerk I Clerk Typist I Clerk Stenographer I Clerk Typist I Clerk Stenographer I Key Punch Operator I Employment Counselor I Case Worker I Case Worker I Clerk Typist I Case Worker I Case Worker I Case Worker I Case Worker I Case Worker I Case Worker I Case Worker I

Holt, Evelyn McNeal

Case Worker I

Hughes, Rosa Lee

Case Worker I

Jacobs, John L.

Case Worker I

Kerr, Barbara Joyce

Case Worker I

Lockett, William James

Case Worker I

Long, Carrie Olivia

Case Worker I

McCorvey, Gloria A.

Case Worker I

McFarland, Dorothy L.

Case Worker I

Maxwell, Verna J.

Case Worker I

Mitchell, Cecelia A.

Case Worker I

Pharris, Barbara Jean

Case Worker I

Lewis, McCurty Lois

Case Worker I

Martin, Evelyn R.

Clerk Typist I

Rocker, Leola Davis

Case Worker I

Powe, Gloria Hall

Case Worker I

Rhodes, Virgil J., Sr.

Case Worker I Child Welfare Worker I Employment Interviewer I State Store Clerk

Ross, Earnestine

Case Worker I

Sanford, Barbara F.

Case Worker I

Solomon, Donald L.

Case Worker I

Taylor, Anne

Case Worker I

2. Negro applicants shall be appointed to positions other than custodial, domestic, laborer or laboratory aide, when said Negro applicants are listed on a Certification of Eligibles, unless higher-ranking white applicants on the certificate are appointed to fill the vacancy (or all the vacancies) in the listed position, or unless the defendants determine that the Negro applicant is not qualified to perform the duties of the position, or is otherwise not fit for the position.

3. Defendants shall not appoint or offer a position to a lower-ranking white applicant on a certificate in preference to a higher-ranking available Negro applicant, unless the defendants have first contacted and interviewed the higher-ranking Negro applicant and have determined that the Negro applicant cannot perform the functions of the position, is otherwise unfit for it, or is unavailable. In every instance where a determination is made that the Negro

applicant is unfit or unavailable, documentary evidence shall be maintained by the defendants that will sustain that finding.
1092 *1092 III. It is further ORDERED that:
1. A Certification of Eligibles for positions other than custodial, domestic, laborer or laboratory aide, containing the name of one or more Negro applicants, shall not be cancelled or returned with vacancies remaining unfilled unless each Negro applicant is appointed or is found to be unavailable or unqualified. Documentary evidence shall be maintained by the State Personnel Department that will sustain the finding of unavailability or lack of qualifications of the Negro applicants when they are not appointed. In every instance, a Negro applicant shall be advised, in writing, as to the fact that his name appears on a Certification of Eligibles and shall be advised as to the position, the agency, the location, his rank on the certificate, the number of persons certified, and the number of vacancies to be filled. When the appointing authority takes action on that certificate the Personnel Department shall notify the Negro applicant of the action taken.
2. The Personnel Department and each employee thereof for the State of Alabama be and each is hereby further enjoined from removing the name of a Negro applicant for a position other than custodial, domestic, laborer, or laboratory aide, from the active register of eligibles unless the Department, in writing, advises the Negro applicant that his name will be removed ten days from the date of the letter and gives him the reasons for the proposed removal.
IV. It is further ORDERED that each of the defendants be and is hereby enjoined from failing to certify Negro applicants whose rank and geographical availability entitle them to certification. If a Negro applicant is omitted from any certification, he shall have a right to the next available position in that classification in the geographical area, subject only to a finding of lack of qualification or fitness.
V. It is further ORDERED that:
1. The procedures to be followed by the defendants for making temporary appointments for positions (other than custodial, domestic, laborer, or laboratory aide) when there are Negro applicants on the employment register eligible for such positions shall be the same procedures as those for making permanent appointments.
2. Each of said defendants be and is hereby enjoined from all racially discriminatory treatment of Negro employees. The defendants shall make both oral and written announcements to all employees to the effect that they are free to use any facilities in the buildings in which they work, including rest rooms, eating facilities, and recreational facilities. Each Negro employee shall be so advised individually and personally by his immediate supervisor.
3. The defendants, in the buildings where cafeterias or snack bars are operated on a racially segregated basis shall devise a system of assignment or service which will eliminate such segregation.
4. The defendants shall issue membership cards in the Alabama State Employees Association to all of their present Negro employees, and shall continue to issue such cards to Negro employees so long as they issue them to white employees.
5. The defendants shall take appropriate steps to cause the Alabama State Employees Association to remove any signs reflecting that membership in the Alabama State Employees Association is required for patronage of the lunchrooms or cafeterias. The defendants shall also take appropriate action to cause the Alabama State Employees Association to admit and serve all persons equally without regard to race or color.
VI. It is further ORDERED that:
1. Each employee classified as a Laboratory Aide I or II as of the date of this order who has a high school education or the equivalent shall become a Laboratory Technician I or II without written or other examination as soon as vacancies occur in the Laboratory Technician I or II positions; no other person shall be hired, promoted 1093 or *1093 demoted into the technician positions until all such Laboratory Aides II who qualify have become Laboratory Technicians II. Laboratory Aides II shall have preference over Laboratory Technicians I in the filling of vacancies in the Laboratory Technician II position.

2. Within six months of this decree, the racial identifiability of the positions of Laboratory Aide I and II and of Laboratory Technician I and II shall be completely removed.
VII. It is further ORDERED that:
1. The defendants shall assign employees on the basis of their training and ability, without regard to race. Negro employees in classifications requiring contact with the public shall not be assigned to serve exclusively or predominantly Negro clientele.
2. The defendants shall advise the public in all advertisements and announcements that they will appoint and employ persons on an equal opportunity, merit basis, without discrimination on the ground of race or color. In such public announcements, the defendants shall advise potential and actual applicants and employees of their right to be free from discrimination. Said announcements shall be made throughout the State of Alabama within thirty days from the date of this order.
3. The defendants shall adopt and implement a program of recruitment and advertising which will fully advise the Negro citizens of the State of Alabama of the employment opportunities available to them with the State of Alabama agencies. This program shall include a rearrangement of regular places for administering merit system examinations so that at least 25 percent of those places consist of predominantly Negro high schools or other institutions. The defendants shall also revise their permanent mailing list of the State Personnel Department to include all predominantly Negro educational institutions and vocational schools, and radio and television stations and newspapers; and for positions in which a high school education or less is required, the defendants shall be required to mail announcements of such positions, together with other related materials, to all the institutions indicated above, as well as to predominantly Negro high schools.
4. The defendants shall institute regular recruitment visits to predominantly Negro high schools, business and vocational schools, and colleges and universities throughout the State of Alabama, such visits to be made in person by appropriate officials of defendant agencies from both local and central offices. The defendants shall submit to this Court within thirty days from the date of this decree, their proposed program of recruitment and advertising.
It is further ORDERED that the defendants file, through their counsel, with this Court within thirty days from this decree a written report setting forth the composition of the State work force by race, location, job classification, department and rate of pay; the name, race, classification, department, division location, and pay rate of each person employed, promoted, resigned, retired, or fired or demoted during the reporting period; and the rank, grade, and race of the person appointed, as well as the rank, grade, and race of any of the higher-ranking competitors. This report shall include the institutions visited, job classifications for which the visits were made, dates of visits, visiting officer, name, title and position of the officer at each institution visited, the places at which examinations were given, and an account of the other advertising and recruiting methods followed by the defendants as required by this order.
It is further ordered that the defendants shall make their records available for inspection and copying by representatives of the United States during normal business hours upon reasonable notice.
This Court specifically retains jurisdiction of this cause.
It is further ordered that the costs incurred in this proceeding be and they are hereby taxed against the defendants, for which execution may issue.

1094 *1094 EXHIBIT A

-------------------------------------------------------------------------------

NAME AND ADDRESS

JOB CATEGORY

DEFENDANT AGENCY

-------------------------------------------------------------------------------

Baskin, Inez Jessie 3626 Mobile Highway Montgomery, Alabama
Bass, Hazel Ruth Box 735 Talladega College Talladega, Alabama
Bolton, Lizzie Charles 1718 Wilson Avenue Daphne, Alabama
Broughton, Rosie
Chambliss, Marguerite P. 405 Sixth Avenue Birmingham, Alabama
Chaney, Josephine 262 Second Court Mobile, Alabama
Cooper, Carolyn A. 1319 Walnut Street Wilmington, Delaware
Crenshaw, Willie David 5805 Syphax Drive Falls Church, Virginia
Crews, Willie L.
Curry, Martha Jean 1303 Juniper Street Mobile, Alabama
Davis, Charles 737 1st St. S., Apt. B Birmingham, Alabama
Gordon, Evelyn Louise Route 2, Box 198 Ramer, Alabama
Graham, Ophelia P.
Gray, Omelia G.
Green, Loretta W.
Holmon, Sadie Bell Route 1, Box 176 Tuscumbia, Alabama

Case Worker I
Case Worker I
Case Worker I
Case Worker I Case Worker I
Clerk Typist I
Case Worker I
Case Worker I
Case Worker I Clerk Typist I
Case Worker I
Clerk Typist I Clerk Stenographer I Clerk I Clerk I Clerk I Clerk Typist I

Pensions and Security Personnel
Pensions and Security
Pensions and Security Personnel
Pensions and Security Pensions and Security Personnel
Pensions and Security Personnel
Pensions and Security
Pensions and Security Personnel
Pensions and Security Pensions and Security Personnel
Pensions and Security Personnel
Education Health Personnel Health Health Health Personnel

Holt, Evelyn McNeal 1454 Barkley Drive Mobile, Alabama

Case Worker I

Pensions and Security Personnel

1095 *1095

-------------------------------------------------------------------------------

NAME AND ADDRESS

JOB CATEGORY

DEFENDANT AGENCY

-------------------------------------------------------------------------------

Hughes, Rosa Lee

Case Worker I

Pensions and Security Personnel

Jacobs, John L.

Case Worker I

Pensions and Security

Jones, Dorothy McKee 1020 North Second Street Birmingham, Alabama

Clerk Typist I Clerk Stenographer I

Education Industrial Relations Pensions and Security Personnel

Jones, Jacqueline Warren 3115 Caffey Drive Montgomery, Alabama

Clerk Stenographer I

Education Health Pensions and Security Personnel

Kerr, Barbara Joyce 200 Sacramento Drive Hampton, Virginia

Case Worker I

Pensions and Security

Lewis, McCurty Lois

Case Worker I

Pensions and Security Personnel

Lockett, William James 602 Shorter Avenue Attalla, Alabama

Case Worker I

Pensions and Security

Long, Carrie Olivia

Case Worker I

Pensions and Security Personnel

McCorvey, Gloria A. 128 Married Students Apts. Tuskegee, Alabama

Case Worker I

Pensions and Security

McFarland, Dorothy L.

Case Worker I

Pensions and Security

Mahone, Carolyn 835 N. Union Circle Montgomery, Alabama

Clerk Typist I

Education Health Pensions and Security Personnel

Martin, Evelyn R. 890 N. Union Circle

Clerk Typist I

Pensions and Security Health

Montgomery, Alabama
Maxwell, Verna J. 2258 Harry Court Mobile, Alabama
Miller, Lottie M.

Case Worker I

Pensions and Security

Clerk I Clerk Typist I Clerk Stenographer I

Health Education Education Pensions and Security Industrial Relations

1096 *1096

-------------------------------------------------------------------------------

NAME AND ADDRESS

JOB CATEGORY

DEFENDANT AGENCY

-------------------------------------------------------------------------------

Mitchell, Cecelia A. 289 Henderson St.,Apt. 15-R Jersey City, New Jersey

Case Worker I

Pensions and Security

Pasley, Angeline 1645 East 74th Street Chicago, Illinois

Clerk Typist I

Education Pensions and Security Personnel

Perkins, Delores A. 267 Morris Court Pensacola, Florida

Clerk Typist I

Pensions and Security Personnel

Pharris, Barbara Jean 1569 Huntsville Road Birmingham, Alabama

Case Worker I

Pensions and Security Personnel

Powe, Gloria Hall

Case Worker I

Pensions and Security

Rhodes, Virgil J., Sr. 2928 Persons Street Whistler, Alabama

Case Worker I Child Welfare Worker I Employment Interviewer I State Store Clerk

Pensions and Security Personnel

Rocker, Leola Davis 518 Messer Street Prichard, Alabama

Case Worker I

Pensions and Security Personnel

Ross, Earnestine

Case Worker I

Pensions and Security Personnel

Sanford, Barbara F. 3020 Love Avenue, N.W. Huntsville, Alabama

Case Worker I

Pensions and Security

Solomon, Donald L. Rt. 1, Box 408

Case Worker I

Pensions and Security

Birmingham, Alabama
Sterling, Essie Mae 1645 74th Street Chicago, Illinois

Clerk Stenographer I Clerk Typist I

Taylor, Anne
Crawford, Dorothy Thomas 837 Chilton Street Montgomery, Alabama
William, Clara Bell 903 Oak Street Montgomery, Alabama
Williams, Sharon Joan 1645 East 74th Street Chicago, Illinois

Case Worker I Key Punch Operator I
Clerk Typist I
Clerk Typist I

Education Health Personnel Pensions and Security
Pensions and Security
Health
Health Pensions and Security Personnel
Education Health Pensions and Security Personnel

1097 *1097

-------------------------------------------------------------------------------

NAME AND ADDRESS

JOB CATEGORY

DEFENDANT AGENCY

-------------------------------------------------------------------------------

Wilson, Catherine 3028 Short 19th Street Tuscaloosa, Alabama

Clerk Typist I

Pensions and Security

Wilson, Janifer 1517 26th Avenue Tuscaloosa, Alabama

Clerk Typist I

Health Pensions and Security Personnel

Winn, Willie Beatrice 2703 9th Avenue Bessemer, Alabama

Clerk Typist I

Industrial Relations Pensions and Security Personnel

EXHIBIT B

--------------------------------------------------------------------------------

NAME AND ADDRESS

JOB CATEGORY

DEFENDANT AGENCY

--------------------------------------------------------------------------------

Brown, Brenda Rand

Clerk Typist I

Personnel

2120 Crawford Street

Mobile, Alabama

Crawford, Etta M. 512 Shepard Montgomery, Alabama

Clerk Messenger

Personnel

Harris, Annie R.

Clerk Messenger

Personnel

247 Brassell Street Montgomery, Alabama
Jarrett, Lee E.
King, Doris M. Rt. 1, Box 41 Thomasville, Alabama
Larkin, Annie L.
Lewis, Fred Douglas 571 Watts Street Montgomery, Alabama
Mays, Marie
Newsome, Kathryn P. O. Box 160 Springville, Alabama
Parker, James M.
Richardson, Bernice
Roberson, Emma Jean
Williams, Francina L.

Clerk Messenger Clerk Messenger

Personnel Personnel

Clerk Messenger Clerk Messenger

Personnel Personnel

Clerk Typist I Clerk Messenger

Personnel Personnel

Clerk Messenger
Clerk Typist I Clerk Stenographer I
Clerk Messenger
Employment Counselor I

Personnel Personnel
Personnel Personnel

[1] The federally financed grant-in-aid programs involved are: Old Age Assistance and Medical Assistance for the Aged, 42 U.S.C. § 302(a) (5); Aid to Families with Dependent Children, 42 U.S.C. § 602 (a) (5); Maternal and Child Health and Crippled Children's Services, P.L. 90-248, Title III, §§ 301, 304(a) (42 U.S.C.A. § 705(a) (3)); Child Welfare Services, P.L. 90-248, Title II, § 240(c) (42 U.S. C.A. § 622); Aid to the Blind, 42 U.S.C. § 1202(a) (5); Aid to the Permanently and Totally Disabled, 42 U.S.C. § 1352(a) (5); Combined Grants for the Aged, Blind, Disabled and Medical Assistance for the Aged, 42 U.S.C. § 1382(a) (5); Medical Assistance, 42 U.S.C. § 1396a (a) (4); Hospital Survey and Construction, 42 U.S.C. § 291d(a) (8); Grants for Comprehensive Health Planning and Public Health Services, 42 U.S.C. § 246 (a) (2) (f), § 246(d) (2) (f); Grants for Unemployment Compensation Administration, 42 U.S.C. § 503(a) (1); Grants for State Public Employment Offices, 29 U.S.C. § 49, P.L. 88-136, Title I, § 101, 20 C.F.R. 602.15; Work Experience and Training, 42 U.S.C. §§ 2922, 2923; Programs for Older Americans, 42 U.S.C. §§ 3023, 3032; Civil Defense Financial Assistance, 50 U.S.C.Appendix 2286(a) (4); and 45 C.F.R. Part 70.
[2] At the request of the Court, the parties submitted proposed findings and conclusions. After a review and a rereview of the voluminous evidence taken in this case, this Court has determined that the proposed findings of fact as submitted by the United States in the most part are accurate and supported by substantial evidence. To the extent that the Government's proposed findings are supported by substantial evidence, this Court has incorporated many of those findings in this memorandum opinion.
[3] Title 55, Code of Alabama, Section 317 expressly prohibits discrimination on the ground of political or religious affiliation. Racial discrimination is not mentioned.
[4] 45 C.F.R. 70.4 provides: "Prohibition of discrimination. Discrimination against any person in recruitment, examination, appointment, training promotion, retention or any other personnel action, because of political or

religious opinions or affiliations or because of race, national origin or other nonmerit factors will be prohibited. The regulations will include appropriate provisions for appeals in cases of alleged discrimination." [5] The State of Alabama's code for race is: 1 0907white male; 2 0907white female; 3 0907 Negro male; 4 0907Negro female; 50907male of race other than Caucasian or Negroid; 60907female of race other than Caucasian or Negroid. [6] "A" for appointed, "D" for declined, "FR" for failed to reply, "C" for considered but not appointed or offered a position, and "WA" for wrong address. [7] The evidence in this case reflects that until 1966 some county Pensions and Security Departments, including Jefferson County, had a firm policy of refusing to hire Negroes in professional or semi-professional categories. [8] The position of Stockroom Clerk is a higher paying position than that of Laboratory Helper. [9] Acts of Alabama, 1955, No. 205, p. 500; Acts of Alabama, 1951, No. 477, p. 844.
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 U.S. v. Flowers, Not Reported in F.Supp.2d (2007)
2007 WL 2725264 Only the Westlaw citation is currently available.
United States District Court, M.D. Alabama,
Northern Division.
UNITED STATES of America, Plaintiff, Timothy D. Pope, Plaintiff-Intervenor, Johnny Reynolds, et al., Plaintiff-Intervenors, Eugene Crum, Jr., et al., Plaintiff-Intervenors,
v. Tommy G. FLOWERS, et al., Defendants. Alabama State Conference of NAACP Branches, Amicus Curiae.
Civil Action No. 2:68cv2709-MHT. | Sept. 17, 2007.
Attorneys and Law Firms
Jay D. Adelstein, Marybeth Martin, US Department of Justice, Civil Rights Division, Employment Litigation Section, Washington, DC, Patricia A. Snyder, U.S. Attorney’s Office, Montgomery, AL, for Plaintiff.
Gary L. Brown, Raymond P. Fitzpatrick, Jr., Fitzpatrick, Cooper & Brown, LLP, James Michael Cooper, Porterfield Harper Mills & Motlow, PA, Ann K. Wiggins, Deborah Ann Mattison, Henry Wallace Blizzard, III, Robert L. Wiggins, Jr., Rocco Calamusa, Jr., Russell Wayne Adams, Susan Gale Donahue, Robert F. Childs, Jr., Wiggins Childs Quinn & Pantanzis, PC, Birmingham, AL, for Plaintiff-Intervenors.
Christopher W. Weller, Henry Clay Barnett, Jr., Mai Lan Fogal Isler, Capell Howard PC, Margaret L. Fleming, Office of the Attorney General, Richard N. Meadows, Alice Ann Byrne, State Personnel Department, Montgomery, AL, Patrick Hanlon Sims, Cabaniss Johnston Gardner Dumas & O’Neal, Mobile, AL, for Defendants.
J. Richard Cohen, Montgomery, AL, for Amicus Curiae.
Opinion
OPINION AND ORDER
MYRON H. THOMPSON, United States District Judge.
*1 Previously, the court terminated the judicially imposed no-bypass rule, which, in general, had since 1970 prohibited Alabama state officials from by-passing a higher-ranked African-American applicant in favor of a lower-ranked white applicant on a certificate of eligibles. United States v. Flowers (Flowers II), 444 F.Supp.2d 1192 (M.D.Ala.2006) (Thompson, J.); United States v. Flowers (Flowers I), 372 F.Supp.2d 1319 (M.D.Ala.2005) (Thompson, J.). This long-standing litigation, brought by plaintiff United States of America and naming several officials of the State of Alabama as defendants, is again before the court, this time on motions for attorneys’ fees and expenses, filed by plaintiff-intervenor Timothy D. Pope, a white employee of the Alabama Department of Corrections who had claimed that he had been denied a promotion because of the no-bypass rule. For the reasons given below, of Pope’s requested $105,317.82 for fees and expenses from the state defendants, the court will award $61,499.70.
I. BACKGROUND
The relevant facts, chronologically, are as follows: 1

U.S. v. Flowers, Not Reported in F.Supp.2d (2007)

May 2002: In order to determine whether the no-bypass rule was still necessary, the state defendants hired statical experts to examine the racial composition of the Alabama workforce as well as the racial patterns of recent selections in the workforce.
February 11, 2003: The state defendants initiated discussions with the United States about the results of the report of the experts.
February 25, 2003: Pope filed a motion to intervene.
March 20 and 27, 2003: The United States filed a motion to hold Pope’s intervention motion in abeyance for 45 days, and the motion was granted.
March 20, 2003: The United States and the state defendants filed a joint motion to terminate the no-bypass rule.
May 22, 2003: Representatives of African-American employees of the State of Alabama moved to intervene.
January 20, 2004: Pope and the African-American representatives were all allowed to intervene.
February 28, 2004: Pope filed a complaint-inintervention and a motion seeking, essentially, to terminate the no-bypass rule.
March 12, 2004: The African-American representatives filed a complaint-in-intervention.
April 29, 2005: The court entered an order requiring that the parties show cause as to why the motions to terminate the no-bypass rule, filed by the United States, the state defendants, and Pope should not be treated as requests for preliminary relief and why the no-bypass rule should not be preliminary enjoined, that is, suspended. Flowers I, 372 F.Supp.2d at 1322-25.
May 9, 2005: Pope filed a motion for preliminary injunctive relief.
May 20, 2005: The court treated the United States and the defendants’ joint motion to terminate as a motion for preliminary relief; granted that preliminary-relief motion as well as Pope’s preliminary-relief motion; and suspended the no-bypass rule pending final resolution of the challenges to the rule. Id. at 1325-26
*2 June 1, 2005: Pope filed a motion for award of attorneys’ fees as follows:

ATTORNEYS

RATE

HOURS

AMOUNT

Raymond Fitzpatrick, Jr.

$300

62.25

$18,675.00

J. Michael Cooper

225

12.00

2,700.00

R. Scott Clark

225

141.25

31,781.25

Gary L. Brown

175

150.50

26,337.50

SUBTOTAL

$79,493.75

Expenses

$4,899.90

2

U.S. v. Flowers, Not Reported in F.Supp.2d (2007) TOTAL

$84,393.65

September 9, 2005: Pope and the state defendants filed motions for summary judgment.
June 30, 2006: After substantial discovery, the court entered an opinion and judgment granting the summary-judgment motions, granting the motions to terminate the no-bypass rule, and permanently terminating the rule. Flowers II, 444 F.Supp.2d at 1193-94.
July 12, 2006: Pope filed a supplemental motion for award of attorneys’ fees as follows:

ATTORNEYS

RATE HOURS

AMOUNT

Raymond Fitzpatrick, Jr.

$300

23.25

$6,975.00

J. Michael Cooper

225

9.75

2,193.75

R. Scott Clark

225

7.50

1,687.50

Gary L. Brown

175

57.00

9,975.00

SUBTOTAL

$20,831.2511

Expenses TOTAL

$92.92 $20,924.17

Pope is therefore seeking $79, 493.75 in fees and $4,889.90 in expenses in his first motion and $20,831.25 in fees and $92.92 in expenses in his second motion, for a total sum of $105,317.82.

II. LEGAL STANDARD FOR ATTORNEY’S FEES
In federal civil-rights litigation, “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b); see also Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (statutory fee-shifting provisions from different statutes have been interpreted consistently). “Determining a plaintiff’s entitlement to attorney fees entails a three-step process. First, a court asks if the plaintiff has ‘prevailed’ in the statutory sense. Second, the court calculates the ‘lodestar,’ which is the number of hours (tempered by billing judgment) spent in the legal work on the case, multiplied by a reasonable market rate in the local area. Finally, the court has the opportunity to adjust the lodestar to account for other considerations that have not yet figured in the computation, the most important being the relation of the results obtained to the work done.” Dillard v. City of Greensboro, 213 F.3d 1347, 1353 (11th Cir.2000) (citations omitted).
3

U.S. v. Flowers, Not Reported in F.Supp.2d (2007)
The fee aplicant bears the burden of “establishing entitlement and documenting the appropriate hours and hourly rates.” Norman v. Hous. Auth., of Montgomery, 836 F.2d 1292, 1303 (11th Cir.1988). This burden includes supplying the court with specific and detailed evidence from which it can determine the reasonable hourly rate, maintaining records to show the time spent on the different claims, and setting out with sufficient particularity the general subject matter of the time expenditures so that the district court can assess the time claimed for each activity. ACLU v. Barnes, 168 F.3d 423, 427 (11th Cir.1999).
*3 A fee applicant should also exercise “ ‘billing judgement,’ ” id. at 428 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). That is, the applicant should “exclude from his fee applications ‘excessive, redundant, or otherwise unnecessary [hours],’ which are hours ‘that would be unreasonable to bill to a client and therefore to one’s adversary irrespective of the skill, reputation, or experience of counsel.’ ” Id. (quoting Norman, 836 F.2d at 1301) (citation omitted).
“Those opposing fee applications have obligations, too. In order for [district] courts to carry out their duties in this area, ‘objections and proof from fee opponents’ concerning hours that should be excluded must be specific and ‘reasonably precise.’ ” Id. (quoting Norman, 836 F.2d at 1301).
In making the above determinations, the court is guided by the twelve factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974)2, and approved in Blanchard v. Bergeron, 489 U.S. 87, 91-92, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989). These factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee in the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
III. APPLICATION OF LEGAL STANDARD
The state defendants argue that “Pope is not a ‘prevailing party’ vis-a-vis [them] because the State [did not] oppose [ ] Pope’s motion to terminate the no-bypass rule.” Defendants’ memorandum of law (doc. no. 782) at 2. The state defendants explain that they “commenced their work to vacate the no-bypass rule almost a year before Pope sought to intervene in this action,” id., and that they, “joined by the United States, aggressively litigated their motion to a successful conclusion.” Id.
In Buckhannon Bd. & Care Home, Inc., v. West Virginia Dept. of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), the United States Supreme Court held that a party is a “prevailing party” for fee-shifting purposes if he has achieved a sought-after “judicially sanctioned change in the legal relationship of the parties.” 532 U .S. at 600. Here, this court did not grant the United States and the state defendants’ joint motion to terminate the no-bypass rule and then deny Pope’s termination motion as moot; instead, the court granted both motions. While Pope may not have achieved the sought-after change by himself, he still achieved it. Pope is a prevailing party. This conclusion does not mean, however, as explained below, that he is entitled to all his requested fees.
*4 The first component of the lodestar figure is the number of hours reasonably expended. To determine this number the court relies primarily on the first Johnson factor, the amount of time and labor required. The state defendants maintain that most, if not all, of Pope’s fees should be denied because his work was unnecessary to the litigation. The court agrees with the state defendants that to the extent that Pope’s participation in this lawsuit was unnecessary or redundant, his time and hours should be reduced. Cf. Ass’n of Disabled Anericans v. Neptune Designs, Inc., 469 F.3d 1357, 1360 (11th Cir.2006) (“Where the factual record supports a finding that the plaintiff filed or maintained a suit unnecessarily, a district court may properly consider such a finding in setting the amount of attorneys fees.”). Therefore, the critical issue for the court is whether Pope’s time and labor were redundant of that expended by the United States and the state defendants, or, to put the issue differently, whether Pope made a separate contribution to the litigation, and, if so, what it was.
First, the state defendants observe that they began their efforts to terminate the no-bypass rule in May 2002. However, it must remembered that, when Pope filed his motion to intervene in February 2003, the rule still applied to him, and, indeed, according to him, he had been, and continued to be, denied promotions because of the rule. He therefore had a live and real dispute with the State at that time. He should not have been expected to wait on the sidelines to see if the state defendants
4

U.S. v. Flowers, Not Reported in F.Supp.2d (2007)
would follow through with their efforts to terminate the rule; moreover, Pope could not be certain that the state defendants would not agree to modify, rather than terminate the rule, in the wake of a significant challenge-a challenge which, in fact, came to bear when the African-American representatives intervened. Hindsight might suggest that at some point in the future the outcome of this litigation would have been the same without Pope’s presence in this litigation; but foresight, at the time Pope sought to intervene, provided no such certainty. Pope’s belief that his presence in this litigation was necessary was reasonable.
Next, the state defendants argue that Pope made the same arguments that they did in support of terminating the no-bypass rule; sought the same relief that they did; and relied on their workforce composition evidence. This argument, essentially, puts at issue whether Pope made any separate contribution to the litigation other than his presence. The court, after revisiting the record in this case, believes that Pope did, albeit to only a limited extent.
In orders entered on April 29 and May 20, 2005, this court stated that, because the no-bypass rule, which had been in effect for approximately 35 years, “is a race-conscious provision and, as such, must meet ‘strict scrutiny’ standards and must be ‘narrowly tailored,’ Adarand Constructors, Inc. V. Pena, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995),” Flowers I, 372 F.Supp.2d at 1323, and, because, “if logic and common sense are to apply, the no-bypass rule cannot be both narrowly tailored and everlasting,” id., the rule “cannot continue without a court finding that it continues to meet the demanding requirements for race-conscious relief.” Id. With regard to the evidence submitted by the United States and the state defendants, the court stated the “the important question is whether the picture of race-relations in the government of the State of Alabama has reached the critical point where claims of race discrimination can be adequately addressed through traditional federal remedies, such as Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 1981a, 2000e through 2000e-17, and the Civil Rights Act of 1866, 42 U.S.C.A. § 1981; the current record strongly suggests that that picture, albeit perhaps a very imperfect one, has reached that point.” Flowers I, 372 F.Supp.2d at 1324.
*5 So as to give the African-American representatives an opportunity to cure the defect, that is, that the rule had not been reviewed and re-authorized by a court during it extended existence, and so as to give them an opportunity to refute the evidence submitted by the United States and the state defendants, the court entered a preliminary injunction that only suspended the rule. Id. at 1325.
On June 30, 2006, relying principally on evidence submitted by the African-American representatives, the United States, and the state defendants, the court entered a final opinion and judgment that concluded that the no-bypass rule, “while narrowly tailored when imposed to redress the State’s across-the-board discrimination at that time, is no longer narrowly tailored to redress the specific types of alleged racially discriminatory practices identified by the African-American intervenors today.” Flowers II, 444 F.Supp.2d at 1194. “Those alleged practices may still need fixing,” the court continued, “but the no-bypass rule is no longer one of the appropriate tools; there is no longer a fit between the alleged practices and the rule.” Id. The court found, among other things, that “the percentage of African-Americans in 2003 in the state workforce rose to 39; while, at the same time, between 1983 and 2003, the percentage of African-Americans in the lowest pay-grade groups decreased from 48 (as opposed to 23 for whites) to 11 (as opposed to 8 for whites), and, in general, there was a substantial redistribution of African-Americans into jobs categories with higher, and even the highest, earning potential. Thus, all experts agree “that the percentage of African American employees in the State of Alabama workforce has increased from 1970 to 2003 and that the distribution of these employees has changed from lower skilled positions to higher skilled positions, and consequently, higher paying, ... categories.” Id. at 1193-94 (footnote omitted). The court therefore permanently terminated the rule. Id. at 1194.
Pope’s forceful position in this case, that the no-bypass rule was unconstitutional on its face and should be terminated immediately without consideration of any evidence from any of the other parties, played a substantial role in convincing the court that the rule should be suspended early, that is, pending final resolution of the challenges to it. Pope can therefore take substantial, but not total, credit toward the early suspension of the rule. However the court’s final termination of the rule, after all evidence had been completed, was driven more by the arguments and evidence of the United States and the state defendants. Pope’s contribution to the litigation at this stage was significantly less.
As to Pope’s first, June 2005, fee petition, therefore, the court believes that, with exceptions to be discussed in the next paragraph, the hours and labor expended by Pope during the period leading up to the no-bypass rule’s suspension are reasonable and should be recovered to the extent of 70%. The remaining 30% was redundant of the work done by the United States and the state defendants.
*6 Two of the exceptions to the amount requested for the first fee petition are for work done by Pope on (1) the unsuccessful motion by others to intervene and (2) his unsuccessful motion for class certification. This work was unnecessary, and the fee on his first petition should be reduced by $9,037.50, which reflects the hours spent on these items. A third exception is the
5

U.S. v. Flowers, Not Reported in F.Supp.2d (2007)
$12,850.00 fee for the amount of time litigating fees for the first petition. While fees for litigating fees are recoverable, Jackson v. State Bd. of Pardons & Paroles, 331 F.3d 790, 799 (11th Cir.2003), this amount is excessive when considered in light of Pope’s contribution to the merits of this litigation and when considered for reasonable in general; it will be reduced by $5,000.00.
The court therefore calculates the lodestar for the first fee petition as follows:

Requested amount for non-fee work ($79,493.75-12,850.00)

$66,643.75

Less time for work done on unsuccessful intervention and class certification

9,037.50

SUBTOTAL

$57,606.25

Less 30% for redundant work ($57,606.25 x .30)

17,281.87

SUBTOTAL

$40,324.38

Plus the reduced amount for litigating fees ($12,850-5,000.00)

7,850.00

TOTAL

$48,174.38

As to the second, July 2006, fee petition, as the court has stated, Pope’s contribution to the litigation at this stage was significantly more limited. In addition, his fees for litigating fees approaches 50 % of the fee petition and is excessive when considered in light of Pope’s overall contribution to the merits of this litigation and when considered for reasonableness in light of the total fees for litigating fees in the wake of the state defendants’ challenge to the fees. The court will therefore allow him to recover only 40% of the total amount requested, that is, $8,332.50 ($20,831.25 x .40). He may recover 10%, that is, $2,083 .13 ($20,831.25 x .10), for fees on the merits; he may recover 30 %, that is, 6,249.37, ($20,831.25 x .30), for fees for fees.
The Johnson factors as well as the other considerations listed above as part of the legal standard for determining a reasonable fee, to the extent they have not been subsumed in the discussion above, do not warrant an adjustment of the fee petitions. The expenses requested in both fee petitions are reasonable and fully recoverable.
The total amount recoverable in this case is therefore calculated as follows:

First fee petition

Time and labor

$48,174.38

Expenses

4,899.90

SUBTOTAL

$53,074.28

$53,074.28

6

U.S. v. Flowers, Not Reported in F.Supp.2d (2007) Second fee petition Time and labor Expenses SUBTOTAL TOTAL

$8,332.50 92.92
$8,425.42

$8,425.42 $61,499.70

Also, the court, looking at the big picture rather than just its parts, concludes that this total fee of $61,499.70 is reasonable and should be awarded to Pope from the state defendants.
* * *
*7 Accordingly, for the above reasons, it is ORDERED that plaintiff-intervenor Timothy D. Pope’s motions for award of attorneys fees and expenses (Doc. Nos. 740 & 781) are granted to the extent that plaintiff-intervenor Pope shall have and recover from defendants Tommy G. Flowers, et al., the total sum of $61,499.70 for fees and expenses.

Footnotes

1

In his brief, Pope shows a total fee of $20,706.25, but, when the court multiplies the number of hours listed times the rates

requested, it gets a total fee of $20,831.25, a difference of $125.00.

2

In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit Court of Appeals adopted as binding

precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.

7

 
 Case 2:68-cv-02709-MHT-CSC Document 779 Filed 06/30/06 Page 1 of 7
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff,

)

)

TIMOTHY D. POPE,

)

)

Plaintiff-Intervenor, )

)

JOHNNY REYNOLDS, et al., )

)

Plaintiff-Intervenors, )

)

EUGENE CRUM, JR., et al., )

)

Plaintiff-Intervenors, )

)

v.

)

)

TOMMY G. FLOWERS, et al., )

)

Defendants.

)

)

ALABAMA STATE CONFERENCE )

OF NAACP BRANCHES,

)

)

Amicus Curiae.

)

CIVIL ACTION NO. 2:68cv2709-MHT
(WO)

OPINION

Case 2:68-cv-02709-MHT-CSC Document 779 Filed 06/30/06 Page 2 of 7
The issue before the court is whether, after approximately a third of a century, the court-imposed nobypass rule should be terminated. In general, the rule prohibits Alabama state officials from bypassing a higherranked African-American applicant in favor of a lowerranked white applicant on a certificate of eligibles. Because there are no disputed issues of material fact, see Fed.R.Civ.P. 56, and for the reasons given below, the court concludes that a summary judgment terminating the rule should be entered.
On May 20, 2003, plaintiff United States of America was joined by the defendants, who are officials of the State of Alabama, in filing a motion to terminate the no-bypass rule. This court granted permissive intervention to representatives of two groups of African-American employees of the State of Alabama, and to Timothy Pope, a white employee of the Alabama Department of Corrections who says he was denied a promotion because of the no-bypass rule. On January 28, 2004, Pope joined the United States and the state defendants in their
2

Case 2:68-cv-02709-MHT-CSC Document 779 Filed 06/30/06 Page 3 of 7
termination motion. Previously, on May 20, 2005, the court suspended, as opposed to terminated, the rule so as to allow the African-Americans intervenors to complete discovery on the issue. United States v. Flowers , 372 F.Supp.2d 1319 (M.D. Ala. 2005) (Thompson, J.).
Now that all relevant evidence has been presented, the court finds that the requirements of Rule 60(b) of the Federal Rules of Civil Procedure and Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992), have been met, that is, there has been a “significant change in [factual] circumstances” and termination of the no-bypass rule is “suitably tailored” to these changed circumstances. Id . at 383. As this court has stated, the no-bypass rule was “imposed in response to evidence that, up until 1970, the State of Alabama was unabashedly refusing to hire and promote African-Americans to almost any and all non-menial positions in state government because of their race.” Flowers, 372 F.Supp.2d at 1323. The rule was part of an extensive remedial order to redress this discrimination.
3

Case 2:68-cv-02709-MHT-CSC Document 779 Filed 06/30/06 Page 4 of 7
In contrast, the current r ecord reflects “that the racial make-up of Alabama's government is dramatically different from what it was in 1970, when the no-bypass rule was imposed.” Id . at 1324. More specifically, and for example, the percentage of African-Americans in 2003 in the state workforce rose to 39; while, at the same time, between 1983 and 2003, the percentage of AfricanAmericans in the lowest pay-grade groups decreased from 48 (as opposed to 23 for whites) to 11 (as opposed to 8 for whites), and, in general, there was a substantial redistribution of African-Americans into jobs categories with higher, and even the highest, earning potential. Thus, all experts agree “that the percentage of African American employees in the State of Alabama workforce has increased from 1970 to 2003 and that the distribution of these employees has changed from lower skilled positions to higher skilled positions, and consequently, higher paying, ... categories.”1
1. African-Americans intervenors’ brief (Doc. No. 737), at 13 (citations and quotation marks omitted).
4

Case 2:68-cv-02709-MHT-CSC Document 779 Filed 06/30/06 Page 5 of 7
To be sure, as the African-American intervenors observe, the evidence also reflects that African-Americans have still not achieved parity with whites in the overall state workforce and in certain parts of that workforce. However, the intent of the no-bypass rule was not to achieve racial parity, see Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d 1548 (11th Cir. 1994) (“The Constitution does not guarantee racial parity in public employment”); rather, it was to help in redressing the State’s acrossthe-board discrimination in employment, including specifically the State’s intentional bypassing of higherranked African-American applicants in favor of a lowerranked white applicants so as to limit African-American to menial jobs. The intent was to knock down the State’s wall of racial discrimination.
The African-American intervenors also note that their statistical evidence suggests that there may still be discriminatory practices in other aspects of the State’s selection process and even in some state agencies; this evidence further suggests significant pay disparities
5

Case 2:68-cv-02709-MHT-CSC Document 779 Filed 06/30/06 Page 6 of 7
between African-American and whites within some job categories. “[T]he no-bypass rule is a race-conscious provision and, as such, must meet ‘strict scrutiny’ standards and must be ‘narrowly tailored,’ Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995).” Flowers, 372 F.Supp.2d at 1323. The across-the-board rule, while narrowly tailored when imposed to redress the State’s across-the-board discrimination at that time, is no longer narrowly tailored to redress the specific types of alleged racially discriminatory practices identified by the AfricanAmerican intervenors today. Those alleged practices may still need fixing, but the no-bypass rule is no longer one of the appropriate tools; there is no longer a fit between the alleged practices and the rule.2
2. Indeed, it is arguable that the African-American intervenors may have overstated their case. Their evidence suggests that some of the alleged practices and disparities they identify have remained and continued unallayed at all by the no-bypass rule, thereby suggesting the rule has been ineffective as to these practices and disparities. Therefore, to the extent these alleged practices and disparities need a remedy,
(continued...) 6

Case 2:68-cv-02709-MHT-CSC Document 779 Filed 06/30/06 Page 7 of 7
An appropriate judgment will be entered. DONE, this the 30th day of June, 2006.
/s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE
2. (...continued) they need a new one more tailored to them than the nobypass rule.

 
 Case 2:68-cv-02709-MHT-CSC Document 806 Filed 07/01/08 Page 1 of 3

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff,

)

)

TIMOTHY D. POPE,

)

)

Plaintiff-Intervenor, )

)

JOHNNY REYNOLDS, et al., )

)

Plaintiff-Intervenors, )

)

EUGENE CRUM, JR., et al., )

)

Plaintiff-Intervenors, )

)

v.

)

)

TOMMY G. FLOWERS, et al., )

)

Defendants.

)

)

ALABAMA STATE CONFERENCE )

OF NAACP BRANCHES,

)

)

Amicus Curiae.

)

CIVIL ACTION NO. 2:68cv2709-MHT

ORDER

It is ORDERED that plaintiff-intervenor Timothy D.

Pope’s motion for award of attorney’s fees and costs on

appeal (doc. no. 805) is denied without prejudice. See

Case 2:68-cv-02709-MHT-CSC Document 806 Filed 07/01/08 Page 2 of 3
Mills v. Freeman, 118 F.3d 727, 734 (11th Cir. 1997) (“If a party wishes to obtain fees on appeal, he or she must file a petition with the clerk of [the Eleventh Circuit] within fourteen days of the issuance of the opinion of [that] court.”); Davidson v. City of Avon Park, 848 F.2d 172, 173 (11th Cir. 1988) (“As to fees for services on appeal, we hold that the district court is not authorized ... to control the filing time or assessment of attorney's fees for services rendered on appeal.”); see also Simpleville Music v. Mizell , 511 F. Supp. 2d 1158, 1161 (M.D. Ala. 2007) (Thompson, J.) ("[A] district court is not authorized to award fees and expenses for appellate work."); Wyatt v. Sawyer, 67 F. Supp. 2d 1331, 1346 (M.D. Ala. 1999) (Thompson, J.) (“[A] district court is not authorized to award fees and expenses for appellate work.”). Because Pope may need to file his motion quickly in the appellate court, this court has ruled quickly as well. If Pope’s motion is for any work
2

Case 2:68-cv-02709-MHT-CSC Document 806 Filed 07/01/08 Page 3 of 3
done for which this court can award fees, he can refile motion in this court for such work.
DONE, this the 1st day of July, 2008.
/s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

 
 Case 2:68-cv-02709-MHT-CSC Document 807 Filed 08/19/08 Page 1 of 13
Debra P. Hackett Clerk, U.S. District Court 15 LEE ST STE 206 MONTGOMERY AL 36104-4055
August 19, 2008 Appeal Number: 07-14854-DD Case Style: USA v. Thomas G. Flowers District Court Number: 68-02709 CV-T-N TO: Debra P. Hackett CC: Christopher W. Weller CC: Gary L. Brown CC: Raymond P. Fitzpatrick, Jr. CC: Hon. Charles S. Coody CC: Administrative File

Case 2:68-cv-02709-MHT-CSC Document 807 Filed 08/19/08 Page 2 of 13

Thomas K. Kahn Clerk

United States Court of Appeals
Eleventh Circuit
56 Forsyth Street, NW.
Atlanta, Georgia 30303

August 19, 2008
Debra P. Hackett Clerk, U.S. District Court 15 LEE ST STE 206 MONTGOMERY AL 36 104-4055

Appeal Number: 07-14854-DD Case Style: USA v. Thomas G. Flowers District Court Number: 68-02709 CV-T-N

For rules and forms visit www.call.uscourts.gov

The enclosed certified copy of the judgment and a copy of this court's opinion are hereby issued as the mandate of this court.
Also enclosed are the following:
Bill of Costs
The clerk of the court or agency shown above is requested to acknowledge receipt on the copy of this letter enclosed to the clerk.
A copy of this letter, and the judgment form if noted above, but not a copy of the court's decision, is also being mailed to counsel and pro se parties. A copy of the court's decision was previously mailed to counsel and pro se parties on the date it was issued.

Sincerely, THOMAS K. KAHN, Clerk Reply To: James 0. Delaney (404) 335-6113

End.

MDT- 1 (06/2 006)

Case 2:68-cv-02709-MHT-CSC Document 807 Filed 08/19/08 Page 3 of 13
United States Court of Appeals
For the Eleventh Circuit
FILED No. 07-14854 U.S. COURT OF APPEALS _____________________ - ELEVENTH CIRCUIT District Court Docket No. Jun 18, 2008 68-02709-C V-T-N THOMAS K. KAHN
CLERK UNITED STATES OF AMERICA, Plaintiff,

TIMOTHY D. POPE, Invervenor-Plaintiff-Appellee,
JOHNNY REYNOLDS, et a!., Intervenor-Plaintiffs,
versus THOMAS G. FLOWERS, et a!.,
Defendants, STATE OF ALABAMA PERSONNEL DEPARTMENT,
Defendant-Appellant.

A kme Copy CIer1 U.S. Cou'
E'eventh
By: 4_JL.
AtIanta Georgia

Appeal from the United States District Court for the Middle District of Alabama

JUDGMENT

It is hereby ordered, adjudged, and decreed that the attached opinion included herein by reference, is entered as the judgment of this Court.

Entered: June 18, 2008

AUG 1 9 2008
U.S. COURT OF .AppE

\
J)

For the Court: Thomas K. Kahn, Clerk By: Jackson, Jarvis

Case 2:68-cv-02709-MHT-CSC Document 807 Filed 08/19/08 Page 4 of 13
[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
No. 07-14854 Non-Argument Calendar
- -
D.C. Docket No. 68-02709-CV-T-N

[LL[) ( !i fl \PPL\1 F \E H R( FI1
J L \ F.
TiT(jNjL\; . KAHN (i[: R K

UNITED STATES OF AMERICA,

Plaintiff,

TIMOTHY D. POPE,

Invervenor-Plaintiff-Appellee,

JOHNNY REYNOLDS, et al.,

Intervenor-Plaintiffs,

versus

THOMAS G. FLOWERS, et al.,

Defendants,

STATE OF ALABAMA PERSONNEL DEPARTMENT,

Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Alabama
(June 18, 2008)

Case 2:68-cv-02709-MHT-CSC Document 807 Filed 08/19/08 Page 5 of 13
Before EDMONDSON, Chief Judge, CARNES and BARKETT, Circuit Judges. PER CURIAM:
Defendants-Appellants, the Alabama State Personnel Board, other Alabama State Departments and named State employees (collectively the "State defendants"), appeal an award of attorney's fees to Intervenor-Appellee, Timothy D. Pope. No reversible error has been shown; we affirm.
In 1968, the United States brought an enforcement action against the State defendants alleging a pattern or practice of racial discrimination in employment. In 1970, the district court found the defendants liable and entered injunctive orders designed to remedy the illegal discriminatory practices. United States v. Frazer, 317 F.Supp. 1079 (M.D. Ala. 1970) (the "Frazer litigation"). Those injunctive orders set out an extensive remedial framework to redress discrimination. Part of that framework became known as the Frazer No-bypass Rule: Alabama state officials were prohibited from bypassing a higher ranked African-American applicant in favor of a lower-ranked white applicant on a certificate of eligibles. The Frazer No-bypass Rule remained in effect for over thirty years without court review or reauthorization.
Timothy Pope is a white employee of the Alabama Department of Corrections. In September 2002, Pope was offered a promotion but that
2

Case 2:68-cv-02709-MHT-CSC Document 807 Filed 08/19/08 Page 6 of 13
promotion was rescinded as violative of the No-bypass Rule. Pope filed a race discrimination charge, received a right-to-sue letter, and is the plaintiff in a Title VII case pending in district court. In addition to his Title VII suit, Pope, on 25 February 2003, moved to intervene in the Frazer litigation; Pope asserted, among other things, that the No-bypass Rule was unconstitutional and must be modified or ended.
That the State defendants commenced a review of the continuing necessity of the No-bypass Rule in May 2002, well before Pope moved to intervene is undisputed. Those efforts included preparation of a detailed (and costly) statistical analysis of the racial composition and recent racial hiring patterns in the Alabama public workforce. On 11 February 2003, the State defendants began discussions with the United States about the results of the statistical analysis and proposed to file a joint motion to terminate the No-bypass Rule on the grounds that the problems addressed in the Frazer litigation had been remedied. Because discussions were in process, the State defendants and the United States sought additional time to respond to Pope's intervention motion. On 20 May 2003, the State defendants and the United States filed a joint motion to terminate the No-bypass Rule; on that same date, they each filed answers opposing Pope's motion to intervene on the ground that Pope's interests were adequately

Case 2:68-cv-02709-MHT-CSC Document 807 Filed 08/19/08 Page 7 of 13
represented by the existing parties. On 22 May 2003, a motion to intervene to support the continued efficacy of the No-bypass Rule was filed on behalf of African-American employees and applicants. On 20 January 2004, the district court granted both intervention motions under the permissive intervention provisions of Fed.R.Civ.P. 24(b).
On 20 May 2005, the district court granted a motion filed by Pope and supported by the State defendants and the United States to enjoin preliminarily the operation of the No-bypass Rule. At that time, the district court only suspended the Rule so that the African-American intervenors would have the opportunity to refute the district court's initial assessment that the No-bypass Rule no longer passed constitutional muster. On 30 June 2006, the district court permanently terminated the Rule. Pope sought attorney's fees and expenses totaling $105,317.82; the district court awarded $61,499.70.
The State defendants argue that the district court erred as a matter of law in concluding that Pope was a prevailing party vis-à-vis the State defendants;1 according to the State defendants the interests of the State and Pope were aligned: both parties were successful in their efforts to terminate the No-bypass Rule. And
1Jn civil rights litigation, the district court may award the prevailing party, other than the United States, reasonable attorney's fees. 42 U.S.C. § 1988(b).
4

Case 2:68-cv-02709-MHT-CSC Document 807 Filed 08/19/08 Page 8 of 13
the State defendants maintain that even if Pope could be considered a prevailing party for fee award purposes, special circumstances make such an award manifestly unjust.
We review a district court's award of attorney's fees and costs for abuse of discretion, with underlying questions of law reviewed de novo and factual findings reviewed for clear error. $ Smalbein ex rel. Estate of Smalbein v. City of Daytona Beach, 353 F.3d 901, 904 (1 1th Cir. 2003). The State defendants argue that as a matter of law no attorney's fees may be awarded; they offer no challenge to the district court's attorney's fee calculation.
A party in civil rights litigation is a prevailing party for fee-shifting purposes if success has been attained on "any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 103 S.Ct. 1933, 1939 (1983) (quotation and citation omitted). Key to the determination of prevailing-party status is whether the party achieved "a resolution of the dispute which changes the legal relationship between itself and the defendant." Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 109 S.Ct. 1486, 1493 (1989). When Pope moved to intervene in the Frazer litigation, the No-bypass Rule was being applied to promotion decisions made by the State defendants and thus to Pope as an employee of the Department of Corrections. As
5

Case 2:68-cv-02709-MHT-CSC Document 807 Filed 08/19/08 Page 9 of 13
a consequence of litigation acts taken by Pope and the State defendants, the No-
bypass Rule has been terminated judicially. There can be no doubt that there has
been a "judicially sanctioned change in the legal relationship of the parties."
Buckhannon Bd. & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources, 121 S.Ct. 1835, 1840 (2001). Pope was a prevailing party.
The State defendants seek to engraft a requirement that the defendant must
assume an adversarial posture as a precondition to finding prevailing-party status.
But we see nothing in the language of section 1988 that, as a matter of law,
conditions the district court's power to award fees on the defendant's assuming an
opposing posture.2 The district court found and concluded expressly that Pope
made a separate contribution to the litigation, that Pope's belief that his presence
in the litigation was necessary was a reasonable belief, and that Pope's
contribution was a substantial force in the court's decision to suspend the No-
bypass Rule.3 Because Pope's efforts contributed to a change in the State
2The State defendants cite Reeves v. Harrell, 791 F.2d 1481 (1 1th Cir. 1986), for the position that fee applications are to be denied in civil rights litigation when the interests of the party seeking fees are aligned with the party against whom the fees are to be assessed. In Reeves, the defendants remained neutral on issues raised by plaintiffs in plaintiffs' efforts to defend a consent decree against third party attack. The attorney's fee applicant in Reeves sought no -- and achieved no -- change in the legal landscape.
3Frorn the outset, Pope argued the unconstitutionality of the No-bypass Rule whereas the State defendants focused on statistical evidence to terminate the Rule. Pope's argument was of substantial import in suspending the Rule; Pope's argument was of more limited import in the final decision to terminate the Rule.
6

Case 2:68-cv-02709-MHT-CSC Document 807 Filed 08/19/08 Page 10 of 13
defendants' personnel practices, we see no error in the district court's determination that Pope was a prevailing party -- and a prevailing party vis-à-vis the State defendants -- for purposes of a fee award.
The State defendants argue that, even if Pope properly is considered a prevailing party, special circumstances render a fee award unjust. The State defendants argue correctly that a court may deny an award of attorney's fees to an otherwise prevailing party when special circumstances would render an award unjust. Hensley v. Eckerhart, 103 S.Ct. 1933, 1937 (1983); Martin v. Heckler, 773 F.2d 1145, 1149 (1 1th Cir. 1985), abrogated on other grounds by Texas State Teachers Ass'n. v. Garland Indep. Sch. Dist., 109 S.Ct. 1486, 1489 (1989) ("it is accepted jurisprudence that federal statutes which pennit an award of attorney's fees to prevailing parties in selected litigation are subject to a special circumstances provision"). The defendant bears the burden of establishing that special circumstances render a fee award unjust, Martin, 773 F.2d at 1150; and this judicially created exception to the statutory fee provision is to be narrowly construed. Id.
We see no abuse of discretion in the award of fees under the circumstances of this case. The special circumstances cited by the State defendants -- that the State defendants' efforts to terminate the No-bypass Rule predated Pope's
7

Case 2:68-cv-02709-MHT-CSC Document 807 Filed 08/19/08 Page 11 of 13
intervention, that the parties' interests were aligned, that Pope's contribution was largely redundant, that the State incurred considerable expense in compiling the statistical data upon which the district court relied in the final termination decision, that the State defendants were under legal compulsion to apply the Nobypass Rule until the district court ruled otherwise, and that Pope's intervention was "claim jumping" -- are either contrary to the district court's findings, or are already accounted for by the district court's deductions from the fee request, or otherwise fail to persuade us that the district court abused its discretion when it failed to apply the narrow special circumstances exception to the fee award statute.
AFFIRMED.

rue Copy U.S.: Cou

By:

'. I

I Dlputy C(ek
J AtIa'!ita, Georgia

8

CaseU2N:6IT 8E -cD v-S 0T 2A 70T9E-MS C HO T-U CR ST COF DoAcPuPmEeAnL t S 80F7ORFT ileHdE0E 8L /1E 9V /0E8NTPH agCeIR 1C 2 U ofIT 13 BILL OF COSTS

(;J/r)

rrS Tiy ?cfJ
Appellant

:\U

vs. Appal No. ________________________

______________________________ Appellee

\ \

Fed.R.App.P. 39 and 11th Cir. R. 39-1 (see reverse) govern costs which are taxable ik this court and
for leave to file out of time is required for a B ill of Costs not timely received.

i4iing the Bi
C'-

sts. A motion

INSTRUCTIONS
In the grid below, multiply the number of original pages of each document by the total number of documents reproduced to calculate the total number of copies reproduced. Multiply this number by the cost per copy ( $. 15 per copy for "In-House", up to $.25 per copy for commercial reproduction, supported by receipts) showing the product as costs requested.

DOCUMENT
Appellant's Brief Record Excerpts Appellee's Brief Reply Brief

Repro Method (Mark One)
In-House Comm*

No. of Original
Pages

Total No. Documents Reproduced

Total No. of Copies

_______ _______ _________ __________

______ _______ ________

(11

jç Y 0

COSTS REQUESTED

CT. USE ONLY COSTS
ALLOWED

sT3 7 $ 83.45

*Note: If reprpduction was done commercially, receipt(s) must be attached.

TOTAL

_____________________________________________ ________

$ / '3, 7 $ $83.45

REQUESTED

ALLOWED

I hereby swear or affirm that the costs claimed were actually and necessarily incurred or performed in this appeal and that I have served this Bill of Costs on counsellparties of record.

Date Signed: Attorneyfor:

c'j

0 Signature: /

//

T^'y tT fDt'

AftomeyName: //r Nt&'

7//s, / /;:7
t 2//c/

(Type or print name of client) (Type or print yopr name) / / // 1/

lru co Att iqi \

FOR COURT USE ONLY

CIokK U.S. cc4 cf, aIs,)

EIeventj irc

Costs are hereby taxed in the amount of$ $83.45 against Appellant
By:

_______

and are payable directly to Appellee flpity Ctrk

Atlanta, Georgia

AUG 19 2OO
Issued on: ___________________

Thomas K. Kahn, Clerk'

By:

/A

7/

Deputy 1erk

MISC-12 (12/07)

rI'JLr ). L-O
Case 2:68-cv-02709-MHT-CSC Document 807 Filed 08/19/08 Page 13 of 13
(a) Against Whom Assessed. The following rules apply unless the law provides or the court orders otherwise:
(1) if an appeal is dismissed, costs are taxed against the appellant, unless the parties agree otherwise; (2) if a judgment is affirmed, costs are taxed against the appellant; (3) if a judgment is reversed, costs are taxed against the appellee; (4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders.
(b) Costs For and Against the United States. Costs for or against the United States, its agency, or officer wifi be assessed under Rule 3 9(a) only if authorized by law.
(c) Costs of Copies. Each court of appeals must, by local rule, fix the maximum rate for taxing the cost of producing necessary copies of a brief or appendix, or copies of records authorized by Rule 30(f). The rate must not exceed that generally charged for such work in the area where the clerk's office is located and should encourage economical methods of copying.
(d) Bill of Costs; Objections; Insertion in Mandate.
(1) A party who wants costs taxed must - within 14 days after entry ofjudgment- file with the circuit clerk, with proof of service, an itemized and verified bill of costs.
(2) Objections must be filed within 10 days after service of the bill of costs, unless the court extends the time. (3) The clerk must prepare and certify an itemized statement of costs for insertion in the mandate, but issuance of the mandate
must not be delayed for taxing costs. Ifthe mandate issues before costs are finally determined, the district clerk must - upon the circuit clerk' s request - add the statement of costs, or any amendment of it, to the mandate.
(e) Costs on Appeal Taxable in the District Court. The following costs on appeal are taxable in the district court for the benefit of the party entitled to costs under this rule:
(1) the preparation and transmission of the record; (2) the reporter's transcript, if needed to determine the appeal; (3) premiums paid for a supersedeas bond or other bond to preserve rights pending appeal; and (4) the fee for filing the notice of appeal.
11th Cir. R 39-1 In taxing costs for printing or reproduction and binding pursuant to FRAP 3 9(c) the clerk shall tax such costs at rates not higher than those determined by the clerk from time to time by reference to the rates generally charged for the most economical methods of printing or reproduction and binding in the principal cities of the circuit, or at actual cost, whichever is less.
Unless advance approval for additional copies is secured from the clerk, costs will be taxed only for the number of copies of a brief and record excerpts or appendix required by the rules to be filed and served, plus two copies for each party signing the brief.
All costs shall be paid and mailed directly to the party to whom costs have been awarded. Costs should not be mailed to the clerk of the court.
I.o.P. -
1. Time - Extensions. A bill of costs is timely ffiled within 14 days of ent?y ofjudgment. Judgment is entered on the opinion filing date. The filing ofapetitionfor rehearing orpetitionfor rehearing en banc does not extend the time for filing a bill of costs. A motion to extend the time to file a bill of costs may be considered by the clerk
2. Costs for orAzainst the United States. When costs are soughtfor or against the United States, the statutory or other authority relied upon for such an award must be set forth as an attachment to the Bill of Costs.
3. Reproduction of Statutes, Rules, and Regulations. Costs will be taxed for the reproduction of statutes, rules, and regulations in conformity with FRAP 28(f). Costs will not be taxedfor the reproduction ofpapers not required or allowed to beflledpursuant to FRAP 28 and 30 and the corresponding circuit rules, even though the brief appendix, or record excerpts within which saidpapers are included was acceptedfor filing by the clerk

 
 Case 2:68-cv-02709-MHT-CSC Document 735 Filed 05/20/05 Page 1 of 6
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff,

)

)

TIMOTHY D. POPE,

)

)

Plaintiff-Intervenor, )

)

JOHNNY REYNOLDS, et al.,

)

)

Plaintiff-Intervenors, )

)

EUGENE CRUM, JR., et al., )

)

Plaintiff-Intervenors, )

)

v.

)

)

TOMMY G. FLOWERS, et al., )

)

Defendants.

)

)

ALABAMA STATE CONFERENCE

)

OF NAACP BRANCHES,

)

)

Amicus Curiae.

)

CIVIL ACTION NO. 2:68cv2709-T (WO)

ORDER

This litigation is again before the court, this time on

whether the court should implement the preliminary relief

Case 2:68-cv-02709-MHT-CSC Document 735 Filed 05/20/05 Page 2 of 6
suggested in its show-cause order of April 29, 2005.1 The defendants agree to the relief; intervenor Timothy Pope not only agrees to the relief, he has also filed a motion expressly asking for such relief. Plaintiff United States of America opposes the interim relief and instead requests that the no-bypass rule be terminated immediately and permanently without allowing for any additional discovery and without resolving any of the currently pending discovery disputes; and the African-American intervenors oppose any relief, preliminary or permanent.
For the reasons stated in the court’s April 29 order and based on Pope’s motion, the court will grant the suggested preliminary relief. The court, however, makes these additional findings. First, for the reasons set forth in the court’s April 29 order and pursuant to Fed.R.Civ.P. 60(b), the defendants and Pope have established “that a significant change in circumstances warrants” a suspension of the no-bypass rule. Rufo v. Inmates of the Suffolk
1. Two orders were entered on April 29. One contained suggested preliminary relief (Doc. No. 723), and the other set forth a framework for discovery (Doc. No. 724).
2

Case 2:68-cv-02709-MHT-CSC Document 735 Filed 05/20/05 Page 3 of 6
County Jail, 502 U.S. 367, 383, 112 S.Ct. 748, 760 (1992). More specifically, there has been “a significant change ... in factual conditions [and] in law,” id. at 383, 112 S.Ct. at 760; and the “proposed [preliminary] modification is suitably tailored to the changed circumstance.” Id.
Second, the court rejects the African-American intervenors' contention that it has not made specific findings of fact and reached specific conclusions of law to support the interim relief. This order and the April 29 order provide such.
Third, the African-American intervenors have had sufficient time and opportunity to develop the record upon which the court relies. Indeed, to adopt the AfricanAmerican intervenors’ view, the court would essentially have to wait until all evidence has been developed, thereby defeating the necessary interim relief. As the court stated in its April 29 order, the continued implementation of the race-conscience, indeterminate, across-the-board no-bypass rule without any recent court review and re-authorization during its extended existence, is, on its face,
3

Case 2:68-cv-02709-MHT-CSC Document 735 Filed 05/20/05 Page 4 of 6
unconstitutional.2 By providing for only interim, rather than permanent, relief at this time, the court gives the African-American intervenors an opportunity to cure this defect, if they can; in the meantime, however, the rule simply cannot remain in effect.
Finally, the defendants take issue with a separate, discovery order entered on April 29 directing the magistrate judge “to see if a plan can be developed for more extensive, but still quite limited, discovery.”3 They argue that “the companion discovery order will almost certainly foment future discovery disputes that could quickly overwhelm the parties and the Court.”4 The court has not unconditionally directed the magistrate judge to develop a plan for more
2. In its April 29 order, the court said the continued need for the no-bypass rule had not been reviewed since 1970. The court was incorrect. In 1976, the no-bypass rule was extended to include other state departments and officials not included in the 1970 injunction. United States v. Frazer, 1976 WL 729 (M.D. Ala. Aug. 20, 1976). However, the conclusions reached by the court in its April 29 order remain unchanged.
3. Order entered April 29, 2005 (Doc. No. 724), at 3. See also supra note 1.
4. Defendants' response (Doc. No. 725), at 3. 4

Case 2:68-cv-02709-MHT-CSC Document 735 Filed 05/20/05 Page 5 of 6
discovery. Rather, the magistrate judge is to work with the parties to see “if” a plan can be developed. In addressing this “if,” the magistrate judge should consider not only whether any additional discovery is relevant but, if so, the defendants' articulated concern as well.
Accordingly, it is the ORDER, JUDGMENT, and DECREE of the court as follows:
(1) The joint motion to terminate the no-bypass rule (Doc. No. 634) is treated as a motion for preliminary relief filed by defendants and said motion is granted.
(2) Plaintiff intervenor Timothy Pope’s motion for preliminary relief (Doc. No. 732) is granted.
(3) Pending final resolution of the joint motion to terminate the no-bypass rule (Doc. No. 634) and the motion to modify injunction as to the no-bypass rule (Doc. No. 659), the application of the nobypass rule is suspended, effective no later than June 20, 2005. The court assumes that the defendants need a reasonable period of time to put
5

Case 2:68-cv-02709-MHT-CSC Document 735 Filed 05/20/05 Page 6 of 6
this suspension into effect in an orderly and fair manner. DONE, this the 20th day of May, 2005.
/s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

 
 Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 1 of 46
CLOSED,MHT−ClerkC
U.S. District Court Alabama Middle District (Montgomery) CIVIL DOCKET FOR CASE #: 2:68−cv−02709−MHT−CSC

United States, et al v. Dir AL Personnel Dpt, et al Assigned to: Honorable Judge Myron H. Thompson Referred to: Honorable Judge Charles S. Coody Demand: $0 Case in other court: USCA, 07−14854−D Cause: 42:2000 Job Discrimination (Race)
Plaintiff

Date Filed: 06/12/1968 Date Terminated: 08/27/1984 Jury Demand: None Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

United States of America

represented by Jay D. Adelstein U S Department of Justice, Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue NW PHB−Room 4026 Washington, DC 20530 202−514−3749 Fax: 202−514−1005 Email: jay.d.adelstein@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth E. Vines U.S. Attorney's Office PO Box 197 Montgomery, AL 36101−0197 334−223−7280 Fax: 223−7560 TERMINATED: 01/22/2004 LEAD ATTORNEY

Marybeth Martin U S Department of Justice, Civil Rights Division Employment Litigation Section 950 Pennsylvania Avenue NW PHB−Room 49046 Washington, DC 20530 202−514−2374 Fax: 514−1005 TERMINATED: 01/15/2010 LEAD ATTORNEY

Patricia A. Watson U.S. Attorney's Office PO Box 197 Montgomery, AL 36101−0197 334−223−7280 Fax: 223−7418 Email: Patricia.Snyder@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sharon A. Seeley US Department of Justice Employment Litigation Section Civil Rights Division P. O. Box 65968 Washington, DC 20035−5968

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 2 of 46
(202) 514−2374 Fax: 514−1005 TERMINATED: 04/16/2003 LEAD ATTORNEY
Stephen J. Curran US Department of Justice Employment Litigation Section Civil Rights Division P. O. Box 65968 Washington, DC 20035−5968 (202) 514−2374 Fax: 514−1005 TERMINATED: 04/16/2003 LEAD ATTORNEY
Louis Clifford Whitsett U.S. Dept of Justice, Civil Rights Division Civil Rights Division, PHB−Rm. 4011 950 Pennsylvania Avenue, NW, PHB−4011 Washington, DC 20530 202−305−0942 Fax: 202−514−1005 Email: louis.whitsett@usdoj.gov ATTORNEY TO BE NOTICED
Sharyn Tejani US Department of Justice Civil Rights Division Employment Litigation Section, PHB, Fourth Floor 950 Pennsylvania Avenue NW Washington, DC 20530 202−514−3759 Fax: 202−514−1005 ATTORNEY TO BE NOTICED

V.
Intervenor Plaintiff
Timothy D. Pope TERMINATED: 04/07/2010

represented by Gary Lamar Brown Fitzpatrick &Brown LLP Farley Building, Suite 600 1929 Third Avenue, North Birmingham, AL 35203 205−320−2255 Fax: 205−320−7444 Email: gbrown@fcclawgroup.com TERMINATED: 04/07/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Michael Cooper Porterfield Harper Mills Motlow &Ireland PA 22 Inverness Center Parkway, Suite 600 Birmingham, AL 35242 205−980−5000 Fax: 205−980−5001 Email: jmc@phm−law.com TERMINATED: 04/07/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 3 of 46

Intervenor Plaintiff Johnny Reynolds

Raymond Paul Fitzpatrick , Jr. Attorney at Law 1200 Corporate Drive; Suite 105 Birmingham, AL 35242 205−437−8846 Fax: 855−898−3647 Email: rpf@rfitzpatricklaw.com TERMINATED: 04/07/2010 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Scott Clark 29 Belle Avenue, Apt. A San Anselmo, CA 94960 415−457−1565 Email: scottclark01@earthlink.net TERMINATED: 08/09/2005 LEAD ATTORNEY
represented by Ann K. Wiggins Wiggins Childs Quinn &Pantanzis, PC 301 19th Street North Birmingham, AL 35203−3204 205−314−5000 Fax: 205−254−1500 Email: awiggins@wcqp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah Ann Mattison Wiggins Childs Quinn &Pantanzis, PC 301 19th Street North; The Kress Building Birmingham, AL 35203 205−314−0500 Fax: 205−254−1500 Email: dmattison@wcqp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Henry Wallace Blizzard , III Wiggins Childs Quinn &Pantanzis, PC The Kress Building; 301 19th Street North Birmingham, AL 35203 205−314−0593 Fax: 205−254−1500 Email: hwb@wcqp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kell Ascher Simon Ross Law Group 1104 San Antonio Street Austin, TX 78701 512−474−7677 Fax: 512−474−5306 Email: ksimon@rosslawpc.com TERMINATED: 06/29/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lee Wiggins , Jr. Wiggins Childs Quinn &Pantanzis, PC

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 4 of 46

301 19th Street North; The Kress Bldg. Birmingham, AL 35203 205−314−0500 Fax: 205−254−1500 Email: rwiggins@wcqp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rocco Calamusa , Jr. Wiggins Childs Quinn &Pantanzis, PC 301 19th Street North Birmingham, AL 35203 205−314−0500 Fax: 205−254−1500 Email: rcalamusa@wcqp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Russell Wayne Adams Wiggins Childs Quinn &Pantanzis, PC 301 19th Street North Birmingham, AL 35203−3204 205−314−0500 Fax: 205−254−1500 Email: radams@wcqp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Gale Donahue Wiggins Childs Quinn &Pantanzis, PC 301 19th Street North Birmingham, AL 35203−3204 205−314−0500 Fax: 205−254−1500 Email: sdonahue@sdonahuelaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Fletcher Childs , Jr. Wiggins Childs Quinn &Pantanzis, PC 301 19th Street North Birmingham, AL 35203 205−314−0500 Fax: 205−254−1500 Email: rfc@wcqp.com

Intervenor Plaintiff Peggy Allen

represented by Kell Ascher Simon (See above for address) TERMINATED: 06/29/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Lee Wiggins , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff Martha Ann Boleware

represented by Kell Ascher Simon (See above for address) TERMINATED: 06/29/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 5 of 46

Intervenor Plaintiff Jeffrey Brown
Intervenor Plaintiff Ouida Maxwell
Intervenor Plaintiff Cecil Parker
Intervenor Plaintiff Robert Johnson

Robert Lee Wiggins , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kell Ascher Simon (See above for address) TERMINATED: 06/29/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lee Wiggins , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kell Ascher Simon (See above for address) TERMINATED: 06/29/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lee Wiggins , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kell Ascher Simon (See above for address) TERMINATED: 06/29/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lee Wiggins , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kell Ascher Simon (See above for address) TERMINATED: 06/29/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lee Wiggins , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Thomas G. Flowers

represented by Alice Ann Byrne Alabama State Personnel Dept. Legal division 64 N. Union Street; Suite 316

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Montgomery, AL 36130−4100 334−242−3450 Fax: 334−353−4481 Email: aliceann.byrne@personnel.alabama.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher William Weller Capell Howard PC PO Box 2069 Montgomery, AL 36102−2069 334−241−8000 Fax: 334−323−8888 Email: cww@chlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Henry Clay Barnett , Jr. Capell Howard PC P O Box 2069 Montgomery, AL 36102−2069 334−241−8059 Fax: 334−323−8888 Email: hcb@chlaw.com TERMINATED: 03/02/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Joseph Park , Jr. Strickland Brockington Lewis LLP 1170 Peachtree Street NE; Suite 2200 Atlanta, GA 30309 678−347−2208 Fax: 678−347−2210 Email: jjp@sbllaw.net TERMINATED: 08/06/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Wright Borden Baker Donelson Bearman Caldwell &Berkowitz PC − Bham 420 20th Street North 1400 Wells Fargo Tower Birmingham, AL 35203 205−328−0480 Fax: 205−322−8007 Email: lborden@bakerdonelson.com TERMINATED: 03/16/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mai Lan Fogal Isler Capell Howard PC PO Box 2069 Montgomery, AL 36102−2069 334−241−8069 Fax: 334−241−8269 Email: mfi@chlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret Lindsey Fleming State of Alabama Office of the Attorney General

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P O Box 300152 Montgomery, AL 36130 334−353−3738 Fax: 334−353−8440 Email: mfleming@ago.state.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patrick Hanlon Sims Cabaniss Johnston Gardner Dumas &O'Neal PO Box 2906 Mobile, AL 36652−2906 251−415−7300 Fax: 415−7350 Email: phs@cabaniss.com LEAD ATTORNEY

R. Frank Ussery Folsom Admin. Building, #300 Montgomery, AL 36130 TERMINATED: 04/27/2001 LEAD ATTORNEY

Richard N. Meadows State Personnel Department 64 North Union Street 300 Folsom Administrative Building Montgomery, AL 36130 (334) 242−3389 Fax: 353−4481 Email: rpeavy@personnel.state.al.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tara S. Hetzel Alabama State Personnel Department Legal Division 64 N. Union Street; Suite 316 Montgomery, AL 36130 334−353−0046 Fax: 334−353−4481 Email: Tara.Hetzel@personnel.alabama.gov ATTORNEY TO BE NOTICED

Defendant
Fob James, Jr. Governor TERMINATED: 04/26/2001

Defendant Ala State Employees

represented by Barbara Jean Wells Capell &Howard, P.C. 150 South Perry Street (36104) Post Office Box 2069 Montgomery, AL 36102 334−241−8016 Fax: 334−241−8216 Email: bjw@chlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher William Weller (See above for address)

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LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Jefferson Williams Alabama State Employees Association 110 North Jackson Street Montgomery, AL 36104 334−834−6965 Fax: 834−4904 TERMINATED: 05/25/2004

Defendant Bob Cook

represented by Christopher William Weller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Jefferson Williams (See above for address) TERMINATED: 05/25/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Al Sessions

represented by Christopher William Weller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Jefferson Williams (See above for address) TERMINATED: 05/25/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Ann Geisenheimer

represented by Christopher William Weller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Jefferson Williams (See above for address) TERMINATED: 05/25/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
State of Alabama Personnel Department

represented by Alice Ann Byrne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbara Jean Wells (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher William Weller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant Alabama Department of Corrections
Amicus Alabama State Conference of NAACP Branches

Henry Clay Barnett , Jr. (See above for address) TERMINATED: 03/02/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Joseph Park , Jr. (See above for address) TERMINATED: 08/06/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Wright Borden (See above for address) TERMINATED: 03/16/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mai Lan Fogal Isler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Margaret Lindsey Fleming (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
R. Frank Ussery (See above for address) TERMINATED: 04/27/2001 LEAD ATTORNEY
Richard N. Meadows (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alabama Department of Corrections Legal Division P.O. Box 301501 Montgomery, AL 36130−1501 (334) 353−3883 PRO SE
Christopher William Weller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jack Richard Cohen Southern Poverty Law Center 400 Washington Ave Montgomery, AL 36104 334−956−8200 Fax: 334−956−8480 Email: richard@splcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

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V. Movant Billy R. Stephens TERMINATED: 03/28/2005
Movant Ms. Janet E. Justice TERMINATED: 03/28/2005
Movant John D'Arville TERMINATED: 03/28/2005
Movant Mr. Quinton W. Beard TERMINATED: 03/28/2005
Movant Mr. Loyd Arrington TERMINATED: 03/28/2005
Defendant Don Siegelman
Plaintiff Private Plaintiffs

represented by Gary Lamar Brown (See above for address) TERMINATED: 03/28/2005 ATTORNEY TO BE NOTICED
represented by Gary Lamar Brown (See above for address) TERMINATED: 03/28/2005 ATTORNEY TO BE NOTICED
represented by Gary Lamar Brown (See above for address) TERMINATED: 03/28/2005 ATTORNEY TO BE NOTICED
represented by Gary Lamar Brown (See above for address) TERMINATED: 03/28/2005 ATTORNEY TO BE NOTICED
represented by Gary Lamar Brown (See above for address) TERMINATED: 03/28/2005 ATTORNEY TO BE NOTICED
represented by Christopher William Weller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Edward Andrew Hosp Maynard Cooper &Gale, PC 1901 Sixth Avenue North; Suite 2400 Birmingham, AL 35203 205−254−1077 Fax: 205−254−1999 Email: thosp@maynardcooper.com TERMINATED: 02/24/2003 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert Fletcher Childs , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Lee Wiggins , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Rocco Calamusa , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Russell Wayne Adams (See above for address) ATTORNEY TO BE NOTICED

Movant
Timothy D. Pope TERMINATED: 03/28/2005

represented by Gary Lamar Brown (See above for address) TERMINATED: 03/28/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Michael Cooper (See above for address) TERMINATED: 03/28/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Raymond Paul Fitzpatrick , Jr. (See above for address) TERMINATED: 03/28/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Richard Scott Clark (See above for address) TERMINATED: 08/09/2005 LEAD ATTORNEY

Movant Johnny Reynolds

represented by Deborah Ann Mattison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Henry Wallace Blizzard , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kell Ascher Simon (See above for address) TERMINATED: 06/29/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Lee Wiggins , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Russell Wayne Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Jeffrey Brown

represented by Deborah Ann Mattison (See above for address)

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LEAD ATTORNEY ATTORNEY TO BE NOTICED

Henry Wallace Blizzard , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kell Ascher Simon (See above for address) TERMINATED: 06/29/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Lee Wiggins , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Russell Wayne Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Ouida Maxwell

represented by Deborah Ann Mattison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Henry Wallace Blizzard , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kell Ascher Simon (See above for address) TERMINATED: 06/29/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Lee Wiggins , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Russell Wayne Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Peggy Vonsherie Allen

represented by Deborah Ann Mattison (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Henry Wallace Blizzard , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kell Ascher Simon (See above for address)

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TERMINATED: 06/29/2006 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Lee Wiggins , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Russell Wayne Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor Plaintiff
Eugene Crum, Jr. and other plaintiffs and plaintiff−intervenors in IN RE EMPLOYMENT DISCRIMINATION LITIGATION AGAINST THE STATE OF ALABAMA CIVIL ACTION NO 94−T−356−N

represented by Ann K. Wiggins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Byron Renard Perkins Perkins−Law 2170 Highland Avenue South Suite 100 Birmingham, AL 35205 205−558−4696 Fax: 205−558−4670 Email: bperkins@perkins−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Henry Wallace Blizzard , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Fletcher Childs , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Lee Wiggins , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rocco Calamusa , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Russell Wayne Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susan Gale Donahue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kell Ascher Simon (See above for address) TERMINATED: 06/29/2006

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 14 of 46 ATTORNEY TO BE NOTICED

Date Filed 06/12/1968 06/12/1968 08/16/1968 07/28/1970 07/28/1970
08/21/1970
10/27/1971 02/10/1972

# Docket Text
CASE SKELETON DOCKETED. COMPLETE DOCKET ENTRIES BEGIN 1998. FOR COMPLETE HISTORY PRIOR TO 1998 REFER TO HARD COPY DOCKET. (djy) (Entered: 04/25/2001)
1 COMPLAINT; preliminary and permanent injunctions. (djy) (Entered: 04/25/2001)
21 ORDER denying defs' motions to dismiss. Copies hand to US Atty and Gordon Madison; mailed to other counsel. (djy) (Entered: 04/25/2001)
64 MEMORANDUM OPINION. (djy) (Entered: 04/25/2001)
65 DECREE. Defendants enjoined from discriminatory employment practices as set out in this decree; ordered to offer named Negro applicants first available position in are of geographical availability in a classification and at a rate of pay which they would now have but for racial discrimination found in opinion and order; defendants also enjoined from racially discriminatory treatment of Negro employees; ordered to make records available for inspection and copying by representatives of US during normal business hours upon reasonable notice. Jurisdiction specifically ratained; costs taxed against defendants. Copies handed to local counse; mailed to out of town counsel. (djy) (Entered: 04/25/2001)
75 ORDER amending the following sections of the decree entered in this cause on 7−28−70: Section V(1) (Changed so that defendants are to make temporary appointments so that the ratio of black to white temporary apointments each year is substantially the same as such ratio is for the Negro and white population of the State. Defendants to file repor ton same annually on or before Sept. 15); Section VI (1). copies provided to counsel. (djy) (Entered: 04/25/2001)
87 ORDER denying motion of defendants James A. Simpson, Ralph W. Adams, and D. Kyser Wilson to dissolve the injunction entered 7/28/70m against James A. Simpson, Ralph W. Adams, and Tom J. Ventress. Copies provided to counsel (djy) (Entered: 04/25/2001)
88 ORDER (also applies to CA 3561−N) (1) denying defs' motion to dismis; (2) enjoining defs Frazer, as Dir ALPD and Allen, as Dir ALDPS, their agents,officers, etc. from engaging in any employment practices, including recruitment, examination, appointment, training, promotion, retention or any other personnel action for the purpose or with the effect of discriminating against any employee, or actual or potential applicant for employment on the ground of race or color; (3) enjoining defs from failing to hir and permanently employ after the probationary period 1 Negro trooper for each white trooper hired until approximately 25 percent of the AL state trooper force is comprised of Negroes; (4) enjoining defs from conducting any training courses for the purpose of training new troopers until the groups to be given said training courses are comprised of approx 25 percent black trooper candidates; (5) enjoining defs from failing to hire supporting personnel for the Dept of Public Safety in the ratio of 1 Negro for each white until approx 25 percent of the supporting personnel are black; (6) abrogating eligible and promotional registers heretofore used for the purpose of hiring troopers to the extent necessary to comply with this decree; (7) requiring defs to assign employees on the basis of their training and ability, without regard to race. Defs shall advise the public in all advertisements and announcements that they will appoint and employ persons on an equal opportunity, merit basis, without discrimination on the ground of race or color. Defs shall adopt and implement a program of recruitment and advertising which will fully advise the Negro citizens of the State of Ala of the employmetn opportunities now available to them with the ALDPS. No commitments of employment given by either of the defs or anyof their agents to any applicant or potential applicant, short of actual hiring prior to 1/13/72, the date the temporary restraining order was entered in the state trooper case, shall be given any priority over the hiring ratio set out in decree. Defs to file within 90 days from this date a written report setting forth in detail the efforts which has been undertaken to recruit and hire black applicants. Costs taxed against defs in CA NO 3561−N. Jurisdiction retained. , copies provided. (djy) (Entered: 04/25/2001)

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02/14/1973 08/20/1976 08/20/1976
12/22/1976 12/22/1976 11/28/1977

112 ORDER granting motion of US to add as parties def in this action Henry Gray, III, Administrator, Ala Alcoholic Beverage Control Board, Sulliven, Commissioner ALDOC, Ray Bass, Dir ALDOT, and Chrles BOswell, Commissioner, Dept. of Revenue, both individually as parties def and as representatives of the def class of all State of Ala agencies which employ persons covered by the State Merit System and which are not presently defendants in this case or in NAACP and US v. ALlen, et al. CA NO 3561−N. copies provided to counsel; with opinion and injunction of 7/28/70 , amendment of 8/21/70, injunction of 2/10/72 and motion of US filed 1/23/73, delivered to Marshal for service on Henry Gray, III, LB Sullivan, Ray Bass and Charles H. Boswell. (djy) (Entered: 04/25/2001)
141 MEMORANDUM OPINION Tables 1 thru 16 attached. (djy) (Entered: 04/25/2001)
142 JUDGMENT (10 enjoining defs, including the class of defs represented by Bass, Boswell, Gray and Locke, their officers, agents, successors in office, employees, and all persons in active concert and participation with them from engaging in any employment practice, including but not limited to any practice relating to recruitment, appointment, training, promotion or retention, which has the purpose or effect of discriminating against any employee or actual or potential applicant for employment on the basis of race; (2) that except as herein specifically modifed by this order, all provisions of the decree entered in this case on 7/28/70, as amended 8/21/70, shall remain in full force and effect; (3) regarding black personnel employed in the "Form 8" category; (4) regarding black employeeds employed in permanent positions as ABC warehouse men, laborers, equipment operators, domestic workers, custodial workers, laundry workers, food service workers, cooks, or psychiatric aides; (5) regarding blacks employed in the positions of psychiatric aide I and II, laudry worker I and II, cook I and II, and ABC warehouseman; (6) directing defs to engage in intensiver recruitment for black applicants for the positions of Accountant I, Accountant's Examiner I, Employment Security Specialist I, Unemployment Field Educational Consultant II, Civil Engineer I, Graduate Civil Engineer, Material Engineer I and Highway Design Engineer I; (7) regarding blacks appointed to those job classifications common to several agencies; (8) regarding appointment of blacks to sit on oral interviewing boards; (9) regarding all defs' recruiting efforts; (10) regarding validation of written tests used as a ranking device; (11) regarding Dept. of Mental Health empoloyment of professional personnel; (12) regarding Dept. of Mental Health recruitment program for blacks. Further, directing defs to offer to appoint Herbert Charles Butler to Housing Coordinator II in the AL Development Office, or to some other position with equivalent salary in which he nmay be interested and for which he is qualified in any of the agencies operated by defs; awarding to Herbert Charles Butler as back pay the difference between what he has earned between 8/28/72, and the date of his appointment pursuant to this order, and what he would have earned had he been employed when he should have been eployed as Housing Coordinator II. Further, directing defs to file with this Court and with plf, each six months following entry of this order, a report including the information set out in order; directing that the first six−months' report describe the actions taken to implement that part of this order relating to "Form 8" employees including the information set out in order; denying all other relief sought by plf in this case that is not herein specifically granted; directing counsel for defs to make available to the head of each of the seventy agencies in AL a copy of this decree; retaining jurisdiction of this matter; taxing against defs all costs of this proceeding. Copies provided to counsel. (djy) (Entered: 04/25/2001)
157 ORDER amending judgment of 8/20/76 so as to provide that the defs may validate their written tests in accordance with the Fed Excutive Agency Guidelines on Employee Selection Procedures, 41 Fed. Reg. No. 227 (Nov. 23, 1976); the remaining provisions of said judgment to remain in full force and effect. copies provided to counsel. (djy) (Entered: 04/25/2001)
158 REPORT of validation study by defendants. (djy) (Entered: 04/25/2001)
257 ORDER (rendered by Judge Pointer 11/25/77) in agreement with the parties that the following employments tests can be used by defs for ranking: Capitol Hostess; Radio Operator I and II; Microbiologist I; Public Accountant; Rehabilitation Counselor I; Accounts Examiner II; Unemployment Claims Examiner I; Beverage

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02/22/1978 02/22/1978
12/27/1979
10/09/1981 06/29/1982
08/26/1982 05/25/1984 05/25/1984
07/10/1984 08/27/1984 03/24/1987 08/29/1991

License Inspector I; ABC Store Cashier; and Parole and Probation Supervisor I. Defs allowed to use those tests which the parties later agree meet the standards set forth in the Joint Stipulation on Standards for Test Validation without further approval of this court; copies provided to counsel &Judge Pointer. (djy) (Entered: 04/25/2001)
261 MEMORANDUM OPINION (rendered 2/21/78 by Judge Pointer) (djy) (Entered: 04/25/2001)
262 ORDER (rendered 2/21/78 by Judge Pointer) allowing defs, subject to the conditions and limitations of 5th of the FEA Guidelines, to use those tests for ranking purposes which the parties have heretofore agreed, or may hereafter agree, meet the standards for use as a screening device. copies provided to counse; handed to Judge Pointer w/copies of memorandum opinion. (djy) (Entered: 04/25/2001)
296 ORDER amending Part III of this Court's Decree of 7/28/70 (1) to provide that a certification of eligibles as to Negro applicants for positions other than custodial, domestic, laborer or laboratory aide be maintained as set out in order; (2) enjoining the personnel dept and each employee thereof for the State of Al as set out in order. copies provided to counsel. (djy) (Entered: 04/25/2001)
327 ORDER granting motion to intervene of Wynn, Prewitt, and the Public Service Employees, Local 1279; allowing the defs 14 days from the date of this order within which to file responses to the complaint in intervention. copies provided to counsel. (djy) (Entered: 04/25/2001)
368 ORDER modifying the 8/20/76 decree in order to facilitate the implementation of employee selection procedures developed by and the AL Dept of Personnel and to ensure the use of such procedures in a manner consistent with the intent of previous orders of this Court and of Title VII of the Civil Rights Act of 1964. Appendices attached. copies provided to counsel. (djy) (Entered: 04/25/2001)
374 ORDER denying the motion of Anatolij Taranenko's to intervene. copies provided to counsel. (djy) (Entered: 04/25/2001)
384 MEMORANDUM OPINION, copies furnished US Attorney and mailed to remaining counsel. (djy) (Entered: 04/25/2001)
385 ORDER (1) that the defs' 10/23/81 motion for summary judgment and the plf−intervenors' 3/5/82 motion to dismiss and to be declared a prevailing party are granted to the extent that the 10/9/81 complaint in intervention is dismissed without prejudice; (2) that said motions are denied to the extent that plf−intervenors and defs seek attorney fees; and (3) that each party bear its own costs. copies provided to US Attorney and mailed to remaining counsel. (djy) (Entered: 04/25/2001)
390 ORDER denying the 6/21/84 motion for leave to interent, etc., filed by Eugene D. Buggs, et al, and the 7/2/84 motion for leave to intervene, etc.,. filed by Kerry Powell, et al., without prejudice to filing separate and independen lawsuits. copies provided to counsel. (djy) (Entered: 04/25/2001)
Case closed (djy) (Entered: 04/27/2001)
420 ORDER that the defs are relieved of the responsibility of filing the semiannual reports. Of course, the defs are still required to compile the reports and to serve copies on plf USA ( signed by Judge Myron H. Thompson ) , copies provided to USA and mailed to remaining counsel. (djy) (Entered: 04/25/2001)
429 ORDER that the motion for leave to appear amicus curiae of the Ala NAACP is granted; that within 60 days of the date of this order, plf USA and def Ballard shall file with the court either a joint report or separate reports detailing defs' efforts to comply with the monitoring and substantive requirements of the court's order of 6/29/82 and any changes the parties believe are necessary to remedy any areas identified in the report(s) that might indicate possible non compliance with the 1982 order ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furnished USA. EOD 8−29−91 (djy) (Entered: 04/25/2001)

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06/08/1992 07/31/1992 10/13/1992
10/26/1992
04/07/1993 09/17/1997 01/05/1998 01/05/1998

459 ORDER granting Barnes's motion to intervene filed 10/8/91 and amended 11/15/91 to the extent that the Clerk of the court shall file Barnes's complaint−in−intervention and amended complaint−in−intervention as a separate lawsuit as further set out ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (djy) (Entered: 04/25/2001)
463 ORDER granting defs' motion for clarification and plf Reynolds' renewed motion to intervene to the extent that CA−2709−N and CA 85−T−665−N are consolidated; that parties are to file joint statement of issues at end of trial in CA 85−T−665−N; that counsel in CA 85−T−665−N use single style of case until further notice ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (djy) (Entered: 04/25/2001)
467 ORDER adding the Ala State Employees Assoc., Bob Cook, Al Sessions and Ann Geisenheimer as defs; directing the Ala. State Employees Assoc., Cook, Sessions and Geisenheimer to file a written response to the motion for injunctive relief no later than 10/20/92; setting said motion for hearing on 10/23/92 at 8:25 am in Montgomery, Al; directing the USM or his representative to serve a copy of this order on the Ala. Employees Assoc., Cook, Sessions and Geisenheimer and on their attorney Mark J. Williams ( signed by Judge Myron H. Thompson ) , copies provided to counse; certified copies of motion &order delivered to USM for service on the ALa. State Employees Assoc., Cook, Sessions and Geisenheimer and their attorney Mark Williams; furnished to TW &MT. EOD 10/13/92. (djy) (Entered: 04/26/2001)
472 ORDER granting the motion for injunctive relief filed by the ALSPD and Halcyon Vance Ballard; denying the Ala State Employees Assoc, Cook, Sessions, and Geisenheimer's motion to dismiss; enjoining and restraining the Ala State Employees Assoc., Cook, Sessions, and Geisenheimer, their agents, servants, and attorneys, and those persons in active concert or participation with them who receive actual notice of this order from asserting in Cook v. ALSPD, CV 87−1624−TH the claim or contention that the ALSPD is obligated to reallocate white employees wherer to do so would place the white employees in jobs about black employees ranked highter on the same register or on another register; that the Ala State Employees Assoc., Cook, Sessions, and Geisenheimer are parties to this federal litigation only to the extent that they are enjoined by this order; directing the clerk of the court to issue a writ of injunction ( signed by Judge Myron H. Thompson ) , copies provided to counsel. EOD 10/26/92. (djy) (Entered: 04/26/2001)
488 ORDER denying without prejudice the motion to intervene filed by Ellen Tolbert, et al; denying motion for enlargement of time filed by defendant ALDOC on 4/2/93 ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furnished to TW. (djy) (Entered: 04/26/2001)
514 ORDER (also entered in 85−T−665−N) consolidating USA v. Ballard, CV 2709−N and in re: Employment Discrimination Litigation Aagainst the State of Alabama, Crum v. State of Alabama, CV 94−T−356−N, to the extent that there are issues common to both; counsel in Crum should notify the court when the issues common to both are ready for the court's consideration; until such time, the parties are directed to use the single style for each case when filing pleadings with the court ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (djy) (Entered: 04/26/2001)
551 ORDER granting plfs' (85−T−665−N) motion for extension of time filed 12/30/97; amending the court's orders entered 11/18/97, 12/9/97 to reflect that the plfs (85−T−665−N) shall submit their reply briefs with respect to the Adams intervenors' motion for clarification and/or modification and the Adams intervenors' motion to intervene in Frazer/Ballard by 4:00, 1/9/98 ( signed by Judge Myron H. Thompson ) , copies provided to counse; furnished to USA &TW. (djy) (Entered: 04/26/2001)
552 ORDER granting plfs' (85−T−665−N) motion for extension of time filed 12/23/97; amending the court's order entered 11/18/97 to reflect that the plfs shall submit their reply briefs with respect to the Frazer/Ballard violations issues by 4:00, 1/9/98 ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furnished to USA &TW. (djy) (Entered: 04/26/2001)

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 18 of 46

01/05/1998
01/09/1998 01/09/1998 01/12/1998 01/20/1998 01/28/1998 04/16/1998 04/17/1998 04/24/1998 04/24/1998 06/01/1998
06/08/1998 06/08/1998 06/12/1998

553 ORDER granting defs' (85−T−665−N) motion for extension of time filed 12/30/97; amending the court's orders entered 11/18/97, 12/9/97 to reflect that defs (85−T−665−N) shall submit their reply briefs with respect to the Adams intervenors' motion for clarificaiton and/or modification and the Adams intervenors' motion to intervene in Frazer/Ballard by 4:00, 1/9/98; ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furnished to USA &TW. (djy) (Entered: 04/26/2001)
554 BRIEF by defendants' (85−T−665−N) in response to Adams intervenors' (85−T−665−N) motions for intervention and clarification/modification (Appendix mainted in separate binder) referred to Judge Myron H. Thompson (djy) (Entered: 04/26/2001)
555 REPLY BRIEF by private plfs' (85−T−665−N) on Frazer violations. Referred to Judge Myron H. Thompson (djy) (Entered: 04/26/2001)
556 Plfs' (85−T−665−N) Appendix of authorities relied upon in Reynolds plfs' reply brief on private plfs' reply brief on Frazer violations (entire appendix maintained in separate three−ring binder). Referred to Judge Thompson. (djy) (Entered: 04/26/2001)
557 Adams intervenors' (85−T−665−N) submission UNDER SEAL of existing registers with regard to tied−score and banded−score issues (Exhibits placed UNDER SEAL per ORAL ORDER by Judge Thompson in open court). Referred to Judge Thompson. (djy) (Entered: 04/26/2001)
558 ORDER granting Elaine R. Jones' motion for admission pro hac vice filed in 85−T−665−N for NAACP ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furnished to USA. (djy) (Entered: 04/26/2001)
559 RESPONSE by USA to Crum defs' motion to dismiss disparate impact claims. Referred to Judge Myron H. Thompson (djy) (Entered: 04/26/2001)
560 ORDER denying the motion to intervene by the Reynolds Adams intervenors ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furnished to USA. (djy) (Entered: 04/26/2001)
561 ORDER denying as moot Adams intervenor's motion for clarification and/or modification filed 10/30/97 ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furnished to USA. (djy) (Entered: 04/26/2001)
562 ORDER directing that paragraphs 2 and 3 in section II of the injunction entered 7/28/70 in US v. Frazer shall be interpreted in the manner as further set out in the order ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furnished to USA. (djy) (Entered: 04/26/2001)
563 ORDER rejecting the defs' eleventh−amendment challenge to the plfs' disparate−impact claims of discrimination, because, as determined by application of the two−prong test articulated in Seminole Tribe, Congress validly abrogated the States' sovereign immunity as to such claims brought pursuant to Title VII; ORDERING that the defs' motion to dismiss disparate impact claims, filed on 8−27−97 (Doc No 2063), in Reynolds v. ALDOT 85−T−665−N is DENIED ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furnished to TW and all Mag Judges. (djy) (Entered: 04/26/2001)
564 MOTION by State Personnel Dept to confirm non−consolidation of CRUM w/REYNOLDS , or in the alternative to Sever CRUM from REYNOLDS referred to Judge Myron H. Thompson (djy) (Entered: 04/26/2001)
565 BRIEF by State Personnel Dept in support of [564−1] motion to confirm non−consolidation of CRUM w/REYNOLDS, [564−2] motion to Sever CRUM from REYNOLDS referred to Judge Myron H. Thompson (djy) (Entered: 04/26/2001)
566 ORDER, upon consideration of the CRUM defs' motion to dismiss disparate claims as barred by the eleventh amendment, filed 10−7−97 (Doc #312), directing that the motion is denied, without prejudice, in light of the court's recently entered order in Reynolds vs. ALDOT, 1998 WL 286010 (M.D. Ala. June 1, 1998), which held that

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 19 of 46

06/15/1998 06/18/1998 06/30/1998 06/30/1998 07/02/1998
07/02/1998
07/10/1998
07/13/1998 07/14/1998
07/24/1998 07/29/1998

the eleventh amendment does not preclude the assertion of Title VII disparate impact claims of discriminiation against state defendants, as further set out in order ( signed by Judge Myron H. Thompson ) , copies provided to counse; furnished to TW. VACATED PER ORDER OF 7/2/98 (djy) (Entered: 04/26/2001)
567 ORDER directing that the [564−1] motion to confirm non−consolidation of CRUM w/REYNOLDS by State Personnel Dept and [564−2] motion to Sever CRUM from REYNOLDS by State Personnel Dept be set for submission on 6/26/98, with all briefs due by said date ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (djy) (Entered: 04/26/2001)
568 Notification to court/MOTION by defendants of desire for final appealable order, or in the alternative for final appealable order referred to Judge Myron H. Thompson (djy) (Entered: 04/26/2001)
569 RESPONSE by USA to [564−1] motion to confirm non−consolidation of CRUM w/REYNOLDS by State Personnel Dept, or in the alternative [564−2] motion to Sever CRUM from REYNOLDS by State Personnel Dept. Referred to Judge Myron H. Thompson (djy) (Entered: 04/26/2001)
570 RESPONSE by USA and opposition to defs' request (Doc #332) for entry of Rule 54(b) order concerning court's denial of motion to dismiss disparate impact claims on 11th Amendment Grounds. Referred to Judge Myron H. Thompson (djy) (Entered: 04/26/2001)
571 ORDER granting [564−1] motion to confirm non−consolidation of CRUM w/REYNOLDS to the extent that it is DECLARED that, although Reynolds is consolidated with Ballard, although Crum is consolidated with Ballard, Crum is not consolidated with Reynolds, as further set out in order ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furnished to USA. (djy) (Entered: 04/26/2001)
572 ORDER granting [568−1] motion for final appealable order; vacating [566−1] order; denying motion to dismiss disparate impact claims; with the denial of the defs' dismissal motion on the merits and thus the rejection of the defs' eleventh−amendment defense, the defs now have an appealable order ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furnished to USA. (djy) (Entered: 04/26/2001)
573 ORDER directing that the US shall file with the court a written response to the Adams intervenors' (CA #85−T−665−N Doc #2902) motion by 4:00 p.m. on 7/24/98; directing the clerk to provide the US copies of the listed pleadings along with its copy of this order ( signed by Judge Myron H. Thompson ) , copies provided to counsel; mailed to US w/copies of pleadings, as directed to Marybeth Martin; furnished to TW &all Mag Judges. (djy) (Entered: 04/26/2001)
574 NOTICE of Attorney Appearance for Governor Fob James, Jr. by William P Gray, Jr. (djy) (Entered: 04/26/2001)
575 ORDER TO SHOW CAUSEas to why Flowers should not replace Ballard as a named defendant in this case; further as to why the titles of the named defendants should not precede their names in the style of the case, thus changing the short form of the style to US vs. Director of the ASPD, as further set out in order; Response to Order to Show Cause due on 7/28/98 for USA, for Halycon Ballard, for AL State Conf NAACP, for Ala State Employees, for Bob Cook, for Al Sessions, for Ann Geisenheimer, for State Personnel Dept ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furnished to TW and all Mag Judges. (djy) (Entered: 04/26/2001)
576 MEMORANDUM by USA in response to Adams intervenors' renewed motion for modification and/or clarification filed in response to [573−1] order entered 7−10−98. Referred to Judge Myron H. Thompson (djy) (Entered: 04/26/2001)
577 ORDER directing as follows: (1) Thomas G. Flowers, Interim Director of the State Personnel Dept., shall replace Halycon Vance Ballard former Director of the dept., as a named def in this case; (2) the titles of the named defs shall precede their names in the style of this case; for example, the named defs shall be listed in the

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 20 of 46

07/31/1998
08/18/1998 12/14/2000
12/15/2000 04/05/2001 04/06/2001 04/20/2001 04/25/2001 04/26/2001 04/26/2001 04/27/2001 04/30/2001

style as "Director of the ALSPD, Thomas G. Flowers," "Director of ALDOT, Jimmy Butts," and so on; (3) the short form of the style of this case will be, from this point forward, United States v. Director of the Alabama State Personnel Department ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (djy) (Entered: 04/26/2001)
578 ORDER setting the Adams intervenors renewed motion for modification and clarification (Doc. No. 2902) for a hearing at 10:00 a.m on 8−21−98 in the 2nd floor courtroom of the FMJFB &USC, Montgomery, Al; inviting the US to participate as further set out in order; further ORDERING that the parties shall submit to the court by 4:00 pm on 8−18−98, proposed findings of fact and conclusions of law concerning the issues to be addressed at the hearing ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furnished to MT, TW &all Mag Judges. (djy) (Entered: 04/26/2001)
579 Adams intervenors' (CA 85−T−665−N) NOTICE of filing proposed findings of fact and conclusions of law concerning the issues to be addressed with regard to the Adams intervenors' renewed motion for modification and/or clarification filed 6/29/98 (Doc # 2902 in Reynolds). Referred to Judge Thompson. (djy) (Entered: 04/27/2001)
580 ORDER directing that the Adams intervenors' (85−T−665−N) renewed motion for modification or clarification, filed 6−29−98 (Doc 2902) and amended on 8−17−98 (Doc 3107), is granted to the extent that neither the express language in the FRAZER injunctions nor that in consent decree I requires or authorizes application of the no−bypass rule to ciurcumstances in which an African−American applicant is ranked highter than a white applicant on a certificate of eligibles due to random ranking of applicants (Doc No 4660 in Reynolds 85−T−665−N) ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (djy) (Entered: 04/27/2001)
581 ORDER directing that this court's order of 7.28.98, replacing Halycon Vance Ballard with Thomas G. Flowers as the named def in the above−styled cause, is amended to reflect that Thomas G. Flowers is now the permanent Director of the ALSPD ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furnished to SC. (djy) (Entered: 04/27/2001)
583 MOTION by USA (ERROR−edit 8/20/01 djy−pleading by private plaintiffs) to show cause why defs should not be held in contempt of court referred to Judge Myron H. Thompson (djy) Modified on 08/20/2001 (Entered: 04/27/2001)
584 ORDER granting [583−1] motion to show cause to the extent that defs are to show cause as to wy they should not be held in contempt of court, as further set out in order; setting response to Order to Show Cause due on 4:00 4/20/01 for defendants ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furnished to SC. (djy) (Entered: 04/27/2001)
585 Initial Response by defendants to [581−1] Order to Show Cause. Referred to Judge Myron H. Thompson (djy) (Entered: 04/27/2001)
586 MOTION by State Personnel Dept for leave for R. Frank Ussery to Withdraw as Attorney referred to Judge Myron H. Thompson (djy) (Entered: 04/26/2001)
587 ORDER directing that the Hon. Don Siegelman, Governor of the State of Alabama, shall replace the Hon. Fob James, former Governor Alabama, as a named defendant in this action ( signed by Judge Myron H. Thompson ) , copies provided to counsel and defendant Siegelman. (djy) (Entered: 04/26/2001)
588 ORDER directing that plf USA is allowed until 5/2/01 to file a statement on the issue of whether private plaintiffs can file a contempt motion based on a Frazer violation ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (djy) (Entered: 04/26/2001)
589 ORDER granting [586−1] motion for leave for R. Frank Ussery to Withdraw as Attorney ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (djy) (Entered: 04/27/2001)
590 ORDER amending [588−1] order; allowing plaintiff USA until 5/11/01 to file its statement ( signed by Judge Myron H. Thompson ) , copies provided to counsel.

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 21 of 46

05/01/2001 05/09/2001 06/19/2001 06/26/2001
07/02/2001 07/05/2001 07/12/2001 07/13/2001 07/13/2001 07/26/2001 08/20/2001 02/20/2003 02/24/2003 02/25/2003 02/27/2003 02/27/2003

(djy) (Entered: 04/30/2001)
591 NOTICE of Attorney Appearance for Don Siegelman by Edward A. Hosp (sl) (Entered: 05/02/2001)
592 USA's statement regarding private plaintiffs' motion to show cause in response to court's 4/26/01 order. Referred to Judge Thompson. (djy) (Entered: 05/10/2001)
593 ORDER denying [583−1] motion for civil contempt filed by the private plaintiffs on 4/5/01, as further set out in order ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furnished to SC. (djy) (Entered: 06/19/2001)
594 ORDER TO SHOW CAUSE why the defendants' motion to rescind consolidation of Crum with Frazer, filed 11/1/00 (Crum Doc No 408) should not be granted, as further set out; Response to Order to Show Cause due on 7/13/01 for Don Siegelman, for Abigail P. van Alstyne, for Russell W. Adams, for Rocco J. Calamusa, for Ann K. Wiggins, for Robert F. Childs Jr., for Robert L. Wiggins Jr., for Harry A. Lyles, for William F. Gardner, for John R. Wible, for Andrew Redd, for Thomas T. Gallion III, for State Personnel Dept, for Ann Geisenheimer, for Al Sessions, for Bob Cook, for Ala State Employees, for AL State Conf NAACP, for Thomas G. Flowers, for USA ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furnished to SC. (djy) (Entered: 06/26/2001)
595 Submission of Defendants identifying issues pending disposition before the court. Referred to Judge Thompson. (djy) (Entered: 07/03/2001)
597 ORDER directing that the [596−1] motion to Alter, etc., filed by the private plaintiffs be set for submission on 7/26/01, without oral argument, with all briefs due by said date, as further set out ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furnished to SC. (djy) (Entered: 07/05/2001)
598 Response by USA to [594−1] Order to Show Cause. Referred to Judge Myron H. Thompson (djy) (Entered: 07/13/2001)
599 RESPONSE by defendants' to motions to intervene (Crum 94−T−356−N Doc nos 451 &452) referred to Judge Myron H. Thompson (djy) (Entered: 07/16/2001)
600 Response by plaintiffs to [594−1] Order to Show Cause entered 6/26/01 (Crum Doc. No 456 and Frazer Doc No 594). Referred to Judge Myron H. Thompson (djy) (Entered: 07/16/2001)
601 RESPONSE by USA to [596−1] motion to Alter, [596−2] motion to Amend [593−1] order, [596−3] motion Reconsider denial of contempt proceedings in [593−1] order. Referred to Judge Myron H. Thompson (djy) (Entered: 07/27/2001)
602 REPLY by Private Plaintiffs to response to [596−1] motion to Alter, [596−2] motion to Amend [593−1] order, [596−3] motion Reconsider denial of contempt proceedings in [593−1] order. Referred to Judge Myron H. Thompson (djy) (Entered: 08/20/2001)
603 (Notice of Withddrawal) MOTION by Don Siegelman for Edward A. Hosp to Withdraw as Attorney for the Governor of Alabama referred to Judge Myron H. Thompson (vmc) (Entered: 02/21/2003)
604 ORDER granting [603−1] motion for Edward A. Hosp to Withdraw as Attorney for the Governor of Alabama (Terminated Edward A. Hosp) ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furn: sc. (vmc) (Entered: 02/24/2003)
605 MOTION to Intervene of Timothy D. Pope referred to Judge Myron H. Thompson (vmc) (Entered: 02/26/2003)
606 ORDER that on or before 3/21/03 plaintiff shall file a motion to name the current state officials as defendants in this case; setting Motion Filing deadline to 3/21/03 ( signed by Judge Myron H. Thompson), copies provided to counsel. (ajr) (Entered: 02/27/2003)
607 ORDER [605−1] motion to Intervene of Timothy D. Pope set for submission on 3/21/03 setting Brief deadline to 3/21/03 (signed by Judge Myron H. Thompson), copies provided to counsel, SC. (ajr) (Entered: 02/27/2003)

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 22 of 46

03/19/2003 03/20/2003 03/20/2003 03/20/2003 03/20/2003 03/20/2003 03/20/2003 03/21/2003 03/25/2003 03/27/2003
03/28/2003
03/31/2003
04/14/2003 04/16/2003 04/24/2003 04/25/2003

608 MOTION by State Personnel Dept for Extension of Time to respond to the motion of Timothy D. Pope to intervene in this action referred to Judge Myron H. Thompson (vmc) (Entered: 03/20/2003)
Deadline updated; set Telephone Conference for 8:45 3/20/03 before Judge Myron H. Thompson (vmc) (Entered: 03/20/2003)
Tele−conference held before Judge Myron H. Thompson on 3/20/03 (vmc) (Entered: 03/21/2003)
609 Courtroom Deputy's MINUTES of proceedings: Telephone Conference held on 3/20/03 before the Hon. Myron H. Thompson; Telephone conf. Re: motion to intervene filed on 3/19/03 (vmc) (Entered: 03/21/2003)
610 MOTION by USA to hold intervention motion in abeyance for 45 days to permit the parties to continue their discussions referred to Judge Myron H. Thompson (vmc) (Entered: 03/21/2003)
611 MOTION by USA to name current state officials as defendants referred to Judge Myron H. Thompson (vmc) (Entered: 03/21/2003)
612 NOTICE of substitution of original pleading by State Personnel Dept; referred to Judge Thompson (vmc) (Entered: 03/21/2003)
613 ORDER granting [611−1] motion to name current state officials as defendants and the current state officials are substituted as defendants as requested ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furn: sc. (vmc) (Entered: 03/21/2003)
614 NOTICE of Attorney Appearance for USA by Marybeth Martin and Jay D. Adelstein (vmc) (Entered: 03/26/2003)
615 ORDER granting (610) motion to hold intervention motion in abeyance for 45 days to permit the parties to continue their discussions; granting 608 motion for extension of time; [605−1] motion to Intervene of Timothy D. Pope set for submission on 5/16/03 set parties Brief deadline to 5/6/03 ; set movant Pope's deadline to 5/16/03 ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furn: sc. [edited to show motion granted 1/20/04 &1/21/04 − vmc] (vmc) Modified on 01/22/2004 (Entered: 03/27/2003)
616 ORDER denying [596−1] motion to Alter, denying [596−2] motion to Amend [593−1] order, denying [596−3] motion Reconsider denial of contempt proceedings in [593−1] order ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furn: sc. (AMENDED PER ORDER #662 FILED 2/26/04) (vmc) Modified on 02/26/2004 (Entered: 03/28/2003)
617 ORDER denying [582−1] motion to Alter, [582−2] motion Amend [580−1] order, [582−3] motion for Reconsider [580−1] order, as the court has tried to make clear the Frazer no−bypass rule applies to true, merit−based rankings ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furnished to SC. (djy) (Entered: 03/31/2003)
618 MOTION by USA for Sharon A. Seeley, Stephen J. Curran to Withdraw as Attorney for plaintiff referred to Judge Myron H. Thompson (vmc) (Entered: 04/15/2003)
619 ORDER granting [618−1] motion for Sharon A. Seeley, Stephen J. Curran to Withdraw as Attorney for plaintiff (Terminated Sharon A. Seeley and Stephen J. Curran ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furn: sc. (vmc) (Entered: 04/16/2003)
620 MOTION by Plaintiffs in Reynolds to require service of pleadings and materials related to application for intervention and for an extension of time to respond referred to Judge Myron H. Thompson (djy) (Entered: 04/25/2003)
621 ORDER TO SHOW CAUSE in writing as to why the Reynolds plaintiffs' motion to require service, etc. and motion for extension of time, etc. filed 4/24/03 (Doc 620) should not be granted; Response to Order to Show Cause due on 5/1/03 for Private Plaintiffs, for State Personnel Dept, for USA ( signed by Judge Myron H.

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 23 of 46

04/25/2003 04/28/2003 05/01/2003 05/01/2003 05/01/2003 05/01/2003 05/02/2003
05/02/2003
05/07/2003 05/09/2003 05/20/2003 05/20/2003 05/20/2003

Thompson ) , copies provided to counsel; furnished to SC. (djy) (Entered: 04/25/2003)
622 MOTION by Private Plaintiffs to require service of pleadings and materials related to application for intervention and an Extension of Time to respond referred to Judge Myron H. Thompson (vmc) (Entered: 04/28/2003)
623 ORDER TO SHOW CAUSE as to why the Crum plaintiffs' motion to require service, etc., and motion for extension of time, etc. should not be granted: Response to Order to Show Cause due on 5/1/03 for parties ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furn: sc. (vmc) (Entered: 04/28/2003)
624 RESPONSE by USA to [622−1] motion to require service of pleadings and materials related to application for intervention by Private Plaintiffs, [622−2] motion an Extension of Time to respond by Private Plaintiffs referred to Judge Myron H. Thompson (vmc) (Entered: 05/02/2003)
625 RESPONSE by Thomas G. Flowers to [622−1] motion to require service of pleadings and materials related to application for intervention by Private Plaintiffs, [622−2] motion an Extension of Time to respond by Private Plaintiffs referred to Judge Myron H. Thompson (vmc) Modified on 05/02/2003 (Entered: 05/02/2003)
626 RESPONSE by USA to [620−1] motion to require service of pleadings and materials related to application for intervention by Private Plaintiffs, [620−2] motion for an extension of time to respond by Private Plaintiffs referred to Judge Myron H. Thompson (vmc) (Entered: 05/02/2003)
627 RESPONSE by Timothy D. Pope to [620−1] motion to require service of pleadings and materials related to application for intervention by Private Plaintiffs, [620−2] motion for an extension of time to respond by Private Plaintiffs referred to Judge Myron H. Thompson (djy) (Entered: 05/02/2003)
628 ORDER (also applies to Reynolds 85−T−665−N) directing as follows: (1) the Reynolds plaintiffs [620−1] motion to require service of pleadings and materials related to application for intervention and [620−2] motion for an extension of time to respond is GRANTED, as further set out in order; (2) directing that the [605−1] motion to Intervene of Timothy D. Pope be reset for submission on 5/30/03, without oral argument, with everyone except movant Pope to file their briefs by 5/20/03, and movant Pope to do the same by 5/30/03 ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furnished to SC. (djy) Modified on 05/02/2003 (Entered: 05/02/2003)
629 ORDER (also applies to CRUM 94−T−356−N) directing as follows: (1) the Crum plaintiffs' [622−1] motion to require service of pleadings and materials related to application for intervention, and [622−2] motion an Extension of Time to respond is GRANTED, as further set out in order; (2) directing that the [605−1] motion to Intervene of Timothy D. Pope be reset for submission on 5/30/03, without oral argument, with everyone except movant Pope to file their briefs by 5/20/03, and movant Pope to do the same by 5/30/03 ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furnished to SC (djy) (Entered: 05/02/2003)
630 MOTION for Dorman Walker to Withdraw as Counsel for dfts The Alabama Department of Industrial Relations, etc. referred to Judge Myron H. Thompson (vmc) (Entered: 05/07/2003)
631 ORDER granting [630−1] motion for Dorman Walker to Withdraw as Counsel for dfts The Alabama Department of Industrial Relations, etc. ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furn: sc. (vmc) (Entered: 05/09/2003)
632 RESPONSE by USA to [605−1] motion to Intervene of Timothy D. Pope referred to Judge Myron H. Thompson (vmc) (Entered: 05/21/2003)
633 RESPONSE by Thomas G. Flowers to [605−1] motion to Intervene of Timothy D. Pope referred to Judge Myron H. Thompson (vmc) (Entered: 05/21/2003)
634 JOINT MOTION by Plaintiff USA and Defendants to terminate no−bypass provisions of injunctive ; (w/Exhibit A attached) referred to Judge Myron H.

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 24 of 46

05/20/2003 05/20/2003
05/22/2003 05/22/2003 05/22/2003 05/23/2003
05/23/2003
05/23/2003 05/23/2003 05/23/2003 05/23/2003 05/23/2003 06/05/2003 06/06/2003

Thompson (vmc) (Entered: 05/21/2003)
635 RESPONSE by Private Plaintiffs to [605−1] motion to Intervene of Timothy D. Pope referred to Judge Myron H. Thompson (vmc) (Entered: 05/21/2003)
634 JOINT MOTION to terminate the no−bypass rule TREATED as MOTION for Preliminary Relief by United States of America, Don Siegelman, Private Plaintiffs, Thomas G. Flowers, Alabama Department of Corrections, Ala State Employees, Bob Cook, Al Sessions, Ann Geisenheimer, State of Alabama Personnel Department. (dmn) (This document has no pdf attached, see Document 634 for pdf.) (Entered: 05/20/2005)
636 (Proposed Intervenor's) MOTION by Timothy D. Pope for Extension of Time to respond to the filings in opposition to movant's motion to intervene referred to Judge Myron H. Thompson (vmc) (Entered: 05/22/2003)
637 MOTION to Intervene to oppose termination or modification of the injunction entered in this action and to otherwise enforce such injunction by Johnny Reynolds, Jeffrey Brown, Ouida Maxwell, Peggy Allen referred to Judge Myron H. Thompson (djy) (Entered: 05/23/2003)
638 MOTION to Intervene to oppose termination or modificaiton of the injunction entered in this action and to otherwise enforce such injunction by Eugene Crum Jr. referred to Judge Myron H. Thompson (djy) Modified on 06/23/2003 (Entered: 05/23/2003)
639 ORDER granting [636−1] motion for Extension of Time to respond to the filings in opposition to movant's motion to intervene; [605−1] motion to Intervene of Timothy D. Pope reset for submission on 6/13/03 reset Pope's Brief deadline to 6/13/03 ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furn: sc. (vmc) (Entered: 05/23/2003)
640 ORDER TO SHOW CAUSE as to why the joint motion to terminate, etc. should not be granted: Response to Order to Show Cause due on 6/13/03 for proposed intervenors; it is further ordered that the parties and proposed intervenors are allowed until 6/13/03, to submit briefs as further set out in order ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furn: sc. (vmc) (Entered: 05/23/2003)
Deadline updated; set Brief parties and proposed intervenors deadline to 6/13/03 (vmc) (Entered: 05/23/2003)
641 ORDER TO SHOW CAUSE as to why the motion to intervene by Johnny Reynolds, et al should not be granted: Response to Order to Show Cause due on 6/13/03 for parties and proposed intervenors ( signed by Judge Myron H. Thompson ) , copies provided to counsel; furn: sc. (vmc) (Entered: 05/23/2003)
Tele−conference held before Judge Myron H. Thompson on 5/23/03 (vmc) (Entered: 05/27/2003)
642 Courtroom Deputy's MINUTES of proceedings: (Court Reporter − Risa Entrekin) − Telephone Conference − Telephone Conference commenced on parties' Joint Motion to Terminate (DN 634); Order to issue setting submission deadline; Conference concluded (vmc) (Entered: 05/27/2003)
Risa L. Entrekin, Court reporter's TRANSCRIPT filed for dates of 5/23/03 on Telephone Conference on Parties' Joint Motion to terminate held before Hon. Myron H. Thompson (vmc) (Entered: 05/27/2003)
643 MOTION by Private Plaintiffs for Rule 54(b) Judgment, or in the alternative, for Certification pursuant to 28 U.S.C. Section 1292(b) referred to Judge Myron H. Thompson (vmc) (Entered: 06/06/2003)
644 ORDER directing that the [643−1] motion for Rule 54(b) Judgment and [643−2] motion for Certification pursuant to 28 U.S.C. Section 1292(b) by Private Plaintiffs be set for submission on 6/13/03, without oral argument, with all briefs due by said date ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (djy) (Entered: 06/06/2003)

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 25 of 46

06/13/2003 06/18/2003 06/20/2003 06/20/2003 06/20/2003 06/20/2003 06/20/2003 06/20/2003 06/20/2003 06/23/2003 10/22/2003 01/20/2004 01/20/2004
01/21/2004 01/22/2004 01/28/2004

645 ORDER directing that the June 13, 2003, deadline for all FLOWERS related matters in these three cases is extended to 6/20/03 ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (djy) (Entered: 06/13/2003)
646 MEMORANDUM by Defendants in opposition to [643−1] motion for Rule 54(b) Judgment, by Private Plaintiffs, [643−2] motion for Certification pursuant to 28 U.S.C. Section 1292(b) by Private Plaintiffs referred to Judge Myron H. Thompson (vmc) (Entered: 06/19/2003)
647 BRIEF by defendants concerning proceedings on [634−1] joint motion to terminate no−bypass provisions of injunctive. Referred to Judge Myron H. Thompson (djy) (Entered: 06/20/2003)
648 Response by Timothy D. Pope to [640−1] Order to Show Cause to joint motion to terminate no−bypass provisions of injunctive orders (also refers to Doc 634) referred to Judge Myron H. Thompson (djy) (Entered: 06/20/2003)
649 REPLY BRIEF by Timothy D. Pope on [605−1] motion to Intervene of Timothy D. Pope (Exhibit A attached). Referred to Judge Myron H. Thompson (djy) (Entered: 06/20/2003)
650 Response by USA to [641−1] Order to Show Cause re: intervention motions filed by Reynolds, et al and Crum, et al. and court's request for recommendation on how to proceed. Referred to Judge Myron H. Thompson (djy) (Entered: 06/20/2003)
651 Response by Johnny Reynolds, et al and Eugene Crum Jr. et al. to [640−1] Order to Show Cause re: motion to terminate the no−bypass paragraph of the injunction in FRAZER (also refers to Doc 634). Referred to Judge Myron H. Thompson (djy) (Entered: 06/20/2003)
652 RESPONSE by Thomas G. Flowers, State Personnel Dept to [638−1] motion to Intervene to oppose termination or modificaiton of the injunction entered in this action and to otherwise enforce such injunction by Eugene Crum Jr. Referred to Judge Myron H. Thompson (djy) (Entered: 06/23/2003)
653 RESPONSE by defendants to [637−1] motion to Intervene to oppose termination or modification of the injunction entered in this action and to otherwise enforce such injunction by Johnny Reynolds, Jeffrey Brown, Ouida Maxwell, Peggy Allen. Referred to Judge Myron H. Thompson (djy) (Entered: 06/23/2003)
REFERRAL JUDGE assigned to Mag. Judge Charles S. Coody (djy) (Entered: 06/23/2003)
654 DEFENDANT'S MOTION for expedited rulings referred to Judge Myron H. Thompson (vmc) (Entered: 10/23/2003)
655 ORDER granting [605−1] motion to Intervene of Timothy D. Pope ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (ag) (Entered: 01/20/2004)
656 ORDER granting [637−1] motion to Intervene to oppose termination or modification of the injunction entered in this action and to otherwise enforce such injunction by Johnny Reynolds, Jeffrey Brown, Ouida Maxwell, Peggy Allen ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (ag) (Entered: 01/20/2004)
657 MOTION by USA for Kenneth E. Vines to Withdraw as Attorney and to Substitute Attorney Patricia A. Synder ; referred to Judge Myron H. Thompson (ag) (Entered: 01/21/2004)
658 ORDER granting [657−1] motion for Kenneth E. Vines to Withdraw as Attorney (Terminated attorney Kenneth E. Vines for USA) ; granting [657−2] motion to Substitute Attorney (added attorney Patricia A. Synder) ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (ag) (Entered: 01/22/2004)
659 Intervenor's COMPLAINT by against Thomas G. Flowers, State Personnel Dept, Dept. of Corrections ; referred to Judge Thompson (ag) (Entered: 01/29/2004)

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 26 of 46

01/28/2004 02/23/2004
02/26/2004 02/26/2004
03/04/2004 03/08/2004 03/12/2004
03/12/2004 03/12/2004 03/15/2004 03/16/2004 03/16/2004 03/22/2004 03/22/2004

659 MOTION by Timothy D. Pope to Modify Injunction ; referred to Judge Myron H. Thompson (ag) (Entered: 01/29/2004)
660 ORDER (1) the parties are to submit to the court by 3/22/04, a jointly agreed−upon discovery plan for this case ; setting Telephone Status Conference, to be arranged by the United States, for 9:00 a.m. on 4/2/04 before Judge Myron H. Thompson ( signed by Judge Myron H. Thompson ) , copies provided to counsel, yg, hc, sc. (ag) (Entered: 02/23/2004)
661 ORDER granting [638−1] motion to Intervene to oppose termination or modificaiton of the injunction entered in this action and to otherwise enforce such injunction by Eugene Crum Jr. ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (ag) (Entered: 02/26/2004)
662 ORDER granting in part, denying in part [643−1] motion for Rule 54(b) Judgment,, granting in part, denying in part [643−2] motion for Certification pursuant to 28 U.S.C. Section 1292(b) ; granting [643−1] and [643−2] motion to the extent that the court's order filed April 5, 2001, dismissing the Frazer claims from the Crum litigation (Crum doc. no. 416), and the court's order filed 3/28/03, denying the Crum plaintiffs' motion for contempt (Flowers doc. no. 616, Crum doc. no. 610) are certified for appeal ; (2) Said orders (Crum doc. no. 416; Flowers doc. [616−1], Crum doc. no 610) are amended to reflect the following additional finding; this order involves a controlling question of law as to which there is substantial grounds for difference of opinion, and an immediate appeal from the order may materially advance the ultimate termination of the litigation ; the motion is denied in all other respects order ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (ag) (Entered: 02/26/2004)
663 ANSWER by Thomas G. Flowers, State Personnel Dept to [659−1] intervenor complaint and motion to modify injunction of plaintiff−intervor Timothy D. Pope ; referred to Judge Myron H. Thompson (ag) (Entered: 03/05/2004)
664 NOTICE to Court of Conference of Parteis by USA ; referred to Judge Thompson (ag) (Entered: 03/08/2004)
665 ORDER allowing the Reynolds plaintiff−intervenors and the Crum plaintiff−intervenors to file their complaints−in−intervention; setting Amended Pleadings deadline to 3/12/04 ; allowing the other parties until 04/12/04 to respond to the complaints−in−intervention; directing parties to Show Cause in writing by 04/12/04 as to why [659−1] motion to Modify Injunction should not be granted ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (mfm) (Entered: 03/12/2004)
666 Intervenor's COMPLAINT by Eugene Crum et al. against Thomas G. Flowers, State Personnel Dept, Dept. of Corrections ; referred to Judge Thompson (ag) (Entered: 03/15/2004)
667 Intervenor's COMPLAINT by Johnny Reynolds, Peggy Allen, Martha Ann Boleware, Jeffrey Brown, Ouida Maxwell, Cecil Parker, Robert Johnson against Thomas G. Flowers, State Personnel Dept, Dept. of Corrections ; referred to Judge Thompson (ag) (Entered: 03/15/2004)
668 MOTION by State Personnel Dept for Lisa W. Borden to Withdraw as Attorney ; referred to Judge Myron H. Thompson (ag) (Entered: 03/16/2004)
669 ORDER granting [654−1] motion for expedited rulings ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (ag) (Entered: 03/16/2004)
670 ORDER granting [668−1] motion for Lisa W. Borden to Withdraw as Attorney ( signed by Judge Myron H. Thompson ) , copies provided to counsel. (ag) (Entered: 03/16/2004)
671 Proposed Discovery Plan/RESPONSE by Eugene Crum Jr., Johnny Reynolds to [660−2] order ; referred to Judge Myron H. Thompson (ag) (Entered: 03/23/2004)
672 Proposed Discovery Plan/RESPONSE by USA, State Personnel Dept, Timothy D. Pope to [660−2] order ; referred to Judge Myron H. Thompson (ag) (Entered: 03/23/2004)

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 27 of 46

04/02/2004 04/02/2004 04/07/2004
04/07/2004 04/21/2004 04/21/2004 04/21/2004 04/21/2004 04/21/2004 04/29/2004 04/29/2004 04/29/2004 04/30/2004
04/30/2004
04/30/2004 04/30/2004

Tele−conference held before Judge Myron H. Thompson on 4/2/04 (ag) (Entered: 04/02/2004)
673 Courtroom Deputy's MINUTES of proceedings: Telephone conference held 4/2/04 on [634−1] joint motion to terminate no−bypass provisions of injunctive before Judge Thompson Court Reporter Mitchell Reisner (ag) (Entered: 04/02/2004)
674 ORDER adopting re 672 proposed discovery plan filed by United States of America, State of Alabama Personnel Department, Timothy D. Pope ; Discovery due by 5/30/2004 ; Status Conference by telephone set for 6/4/2004 09:00 AM before Honorable Myron H. Thompson ; the parties to submit to the court their proposals of what these next steps should be. Signed by Judge Myron H. Thompson on 4/7/04. (ag, ) (Entered: 04/07/2004)
675 NOTICE Filing of Updated Expert Report to the April 2003 Expert Report by Thomas G. Flowers, State of Alabama Personnel Department (ag, ) (Entered: 04/09/2004)
676 MOTION to Intervene by Billy R. Stephens, Janet E. Justice, John D'Arville, Quinton W. Beard, Loyd Arrington. (Attachments: # 1 Exhibit complaint−in−intervention and motion to modify)(Brown, Gary) (Entered: 04/21/2004)
677 MOTION to Certify Class by Timothy D. Pope. (Brown, Gary) (Entered: 04/21/2004)
678 BRIEF/MEMORANDUM in Support re 677 MOTION to Certify Class filed by Timothy D. Pope. (Brown, Gary) (Entered: 04/21/2004)
679 ORDER TO SHOW CAUSE, in writing, as to why the 676 Motion to Intervene should not be granted. Show Cause Response due by 4/30/2004.. Signed by Judge Myron H. Thompson on 04/21/04. (sl, ) (Entered: 04/21/2004)
680 ORDER TO SHOW CAUSE, in writing, as to why the 677 Motion for Class Certification should not be granted. Show Cause Response due by 4/30/2004.. Signed by Judge Myron H. Thompson on 04/21/04. (sl, ) (Entered: 04/21/2004)
681 MOTION for Extension of Time to File Response/Reply to 676 MOTION to Intervene and, 677 MOTION to Certify Class as directed in 679 Order to and 680 Orders to Show Cause by Eugene Crum Jr. et al. and Johnny Reynolds, et al. (djy, ) (Entered: 04/29/2004)
684 RESPONSE to Motion re 676 MOTION to Intervene, 677 MOTION to Certify Class filed by United States of America. (djy, ) (Entered: 04/30/2004)
685 RESPONSE to Motion to Pope Intervenor's 659 Motion to modify injunction filed by United States of America. (djy, ) (Entered: 04/30/2004)
682 ORDER directing as follows: (1) the Reynolds and Crum plf−intervenors' 681 MOTION for Extension of Time to File Response/Reply is granted; (2) all parties will show cause, in writing, as to why the 676 MOTION to Intervene should not be granted; (3) all parties will show cause, in writing, as to why the 677 MOTION to Certify Class should not be granted; Show Cause Response due by 5/7/2004.. Signed by Judge Myron H. Thompson on 04/30/04. (djy, ) (Entered: 04/30/2004)
683 ORDER directing that the Status Conference set for 6/4/2004 is reset for 6/17/2004 08:30 AM before Honorable Myron H. Thompson to discuss the next steps in this litigation; allowing the parties until 6/11/2004 to submit to the court their proposals of what these next steps should be. Signed by Judge Myron H. Thompson on 4/30/04. (djy, ) (Entered: 04/30/2004)
686 ANSWER to Complaint−in−Intervention of Johnny Reynolds et al by Thomas G. Flowers, State of Alabama Personnel Department.(sl, ) (Entered: 05/03/2004)
687 RESPONSE to 676 MOTION to Intervene of Loyd Arrington, Quinton W. Beard, John D. D'Arville, Janet E. Justice and Billy R. Stephens filed by Thomas G. Flowers, State of Alabama Personnel Department. (sl, ) (Entered: 05/03/2004)

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 28 of 46

04/30/2004 04/30/2004 05/03/2004 05/03/2004 05/07/2004
05/07/2004
05/10/2004
05/12/2004 05/13/2004 05/13/2004 05/25/2004 06/01/2004
06/02/2004
06/08/2004 06/14/2004 06/14/2004 06/14/2004 06/14/2004

***Attorney Henry Clay Barnett for Thomas G. Flowers and State of Alabama Personnel Department added. (sl, ) (Entered: 05/03/2004)
688 ANSWER to Complaint−in−Intervention of Eugene Crum et al by Thomas G. Flowers, State of Alabama Personnel Department.(sl, ) (Entered: 05/03/2004)
689 ANSWER to Complaint −in−Intervention of Reynolds and Crum, et al. by Timothy D. Pope.(Brown, Gary) (Entered: 05/03/2004)
690 RESPONSE in Opposition re 659 Motion to Amend/Correct Injunction filed by Peggy Allen, Martha Ann Boleware, Jeffrey Brown, Eugene Crum Jr., Ouida Maxwell, Cecil Parker, Johnny Reynolds. (Simon, Kell) (Entered: 05/03/2004)
691 Response to Order re 677 MOTION to Certify Class, 680 Order to Show Cause by Ala State Employees, Alabama Department of Corrections, Bob Cook, Thomas G. Flowers, Ann Geisenheimer, Al Sessions, Don Siegelman, State of Alabama Personnel Department. (Abbot, Richard) (Entered: 05/07/2004)
692 RESPONSE to Motion re 676 MOTION to Intervene, 677 MOTION to Certify Class filed by Peggy Allen, Martha Ann Boleware, Jeffrey Brown, Eugene Crum Jr., Robert Johnson, Ouida Maxwell, Cecil Parker, Johnny Reynolds. (Simon, Kell) (Entered: 05/07/2004)
693 ORDERED that by 5/24/04 the parties and proposed parties shall deliver to chambers courtesy copies of all documents that have been filed in this case since 5/20/03 (beginning with document 634) and that the parties shall also deliver courtesy copies of all future filings in this case as they occur.. Signed by Judge Myron H. Thompson on 05/10/04. (sl, ) (Entered: 05/10/2004)
694 MOTION for Leave to Amend Answer and Defenses to Complaint in Intervention by Thomas G. Flowers, State of Alabama Personnel Department. (ag, ) (Entered: 05/13/2004)
695 ORDER granting 694 Motion for Leave to Amend Answer and Defenses, etc . Signed by Judge Myron H. Thompson on 5/13/04. (ag, ) (Entered: 05/13/2004)
696 AMENDED ANSWER to 659 Intervenor Complaint by Thomas G. Flowers, State of Alabama Personnel Department. (ag, ) (Entered: 05/13/2004)
*** Attorney Mark Jefferson Williams terminated. (per note from Judge Thompson) (ag, ) (Entered: 05/25/2004)
697 Notice of Filing Expert Response Report regarding the Racial Composition of the State of Alabama Workforce and Employment Selections etc., (w/attachment) by Thomas G. Flowers, State of Alabama Personnel Department. (ag, ) (Entered: 06/02/2004)
698 Notice of Filing Plaintiffs' Rebuttal Expert Report of Dr. Edwin L. Bradley regarding the State of Alabama Workforce and Employment Selections etc., (w/attachment) by Peggy Allen, Martha Ann Boleware, Jeffrey Brown, Eugene Crum Jr., Robert Johnson, Ouida Maxwell, Cecil Parker, Private Plaintiffs, Johnny Reynolds. (ag, ) (Entered: 06/03/2004)
TRANSCRIPT of Proceedings (In−Chambers Telephone Status Conference) held on 4/2/04 before Judge Thompson. Court Reporter: Mitchell Reisner. (ag, ) (Entered: 06/09/2004)
699 Response to Order 683 by United States of America. (Adelstein, Jay) (Entered: 06/14/2004)
700 Response to Order re 683 Order,, Set Hearings, Proposal as to the Next Steps in this Litigation by Timothy D. Pope. (Brown, Gary) (Entered: 06/14/2004)
701 Response to Order re 683 Order,, Set Hearings, requesting parties' proposals concerning next steps in litigation by Eugene Crum Jr., Johnny Reynolds. (Simon, Kell) (Entered: 06/14/2004)
702 MOTION to Strike or, in the Alternative, for Additional Discovery and Expert Reports by Eugene Crum Jr., Johnny Reynolds. (Simon, Kell) (Entered: 06/14/2004)

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 29 of 46

06/14/2004 06/15/2004
06/15/2004 06/16/2004 06/16/2004 06/16/2004 06/16/2004 06/17/2004 06/17/2004 06/29/2004 06/29/2004 06/29/2004 07/01/2004 07/27/2004 01/10/2005
01/10/2005
03/28/2005

703 Response to Order re 683 Order (for the proposed course of future proceedings) by Thomas G. Flowers, State of Alabama Personnel Department. (ag, ) (Entered: 06/15/2004)
704 ORDER 702 MOTION to Strike or, in the Alternative, for Additional Discovery and Expert Reports filed by Johnny Reynolds, Eugene Crum set for submission on 6/16/04 at 2:00 p.m., with all briefs and evidentiary materials due by said date (Motion Submission Deadline set for 6/16/2004). Signed by Judge Myron H. Thompson on 6/15/04. (ag, ) (Entered: 06/15/2004)
705 RESPONSE to 702 MOTION to Strike or, in the Alternative, for Additional Discovery and Expert Reports filed by Thomas G. Flowers, State of Alabama Personnel Department. (ag, ) (Entered: 06/16/2004)
706 RESPONSE to Motion re 702 MOTION to Strike or, in the Alternative, for Additional Discovery and Expert Reports filed by Timothy D. Pope. (Clark, Richard) (Entered: 06/16/2004)
707 MOTION in Limine to exclude expert report, opinions and testimony of Edwin L. Bradley, Ph.D by Thomas G. Flowers, State of Alabama Personnel Department. (ag, ) (Entered: 06/17/2004)
708 MEMORANDUM of Law in Support re 707 MOTION in Limine filed by Thomas G. Flowers, State of Alabama Personnel Department. (ag, ) (Entered: 06/17/2004)
709 Appendix of Exhibits in Support of re 707 MOTION in Limine (w/Exhibits A−I) filed by Thomas G. Flowers, State of Alabama Personnel Department. (ag, ) (Entered: 06/17/2004)
710 Minute Entry for proceedings held before Judge Myron H. Thompson : Telephone Conference held on 6/17/2004. (Court Reporter Mitchell Reisner.) (ag, ) (Entered: 06/17/2004)
711 RESPONSE to Motion re 707 MOTION in Limine filed by Timothy D. Pope. (Clark, Richard) (Entered: 06/17/2004)
712 NOTICE of Appearance by Mai Lan Fogal Isler on behalf of Thomas G. Flowers, State of Alabama Personnel Department (ag, ) (Entered: 06/30/2004)
713 Motion to Appear Pro Hac Vice (Mai Lan F. Isler) ( Filing fee $ 20.00 receipt number 102778.) by Thomas G. Flowers, State of Alabama Personnel Department. (ag, ) (Entered: 06/30/2004)
***Attorney Mai Lan Fogal Isler for Thomas G. Flowers and State of Alabama Personnel Department added. (ag, ) (Entered: 06/30/2004)
714 ORDER granting 713 Motion for Leave to Appear Pro Hac Vice (Mai Isler) . Signed by Judge Myron H. Thompson on 7/1/04. (ag, ) (Entered: 07/01/2004)
715 Reply to response to order to show cause re 676 MOTION to Intervene, 677 MOTION to Certify Class filed by Loyd Arrington. (Fitzpatrick, Raymond) (Entered: 07/27/2004)
716 [THIS IS NOT A RESPONSE, BUT IS ACTUALLY A REQUEST FOR A STATUS CONFERENCE OR HEARING on the 702 Motion. Docketing error.−DMN] RESPONSE to 702 MOTION to Strike Or, in the Alternative, for Additional Discovery and Expert Reports and Request for Status Conference or Hearing re doc nos. 702 and 705 filed by State of Alabama Personnel Department. (Weller, Christopher) (Entered: 01/10/2005)
REQUEST for Status Conference or Hearing Regarding Reynolds and Crum Intervenor−Plaintiffs' Motion to Strike, or, in the alternative, for Additional Discovery and Expert Reports (Doc. No. 702) by State of Alabama Personnel Department. (dmn) (This document has no pdf attached, see Document #716 for pdf.) (Entered: 03/30/2005)
717 ORDER that Loyd Arrington, Quinton Beard, John D'Arville, Janet Justice, and Billy Stephens' 676 Motion to Intervene and plaintiff−intervenor Timothy Pope and the Arrington movants' 677 Motion for Class Certification are conditionally

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 30 of 46

03/29/2005 03/30/2005 03/30/2005 03/30/2005 03/30/2005 03/30/2005 04/29/2005
04/29/2005

denied with leave to ask for reconsideration after the court makes a final determination as to the scope of discovery and the scope of its inquiry into the joint motion to terminate the no−bypass rule. Signed by Judge Myron H. Thompson on 3/28/2005. (dmn) (Entered: 03/28/2005)
718 [VACATED PER 724 ORDER ENTERED 4/29/05] ORDER that the Reynolds and Crum intervenor−plaintiffs' 702 Motion to Strike and Alternative Motion for Additional Discovery and Expert Reports are denied at this time. The motions are premature. Signed by Judge Myron H. Thompson on 3/29/2005. (dmn) Modified on 4/29/2005 (djy, ). (Entered: 03/29/2005)
719 MOTION in Limine to Exclude the Expert Report, Opinions, and Testimony of Drs. Joan Haworth and Janet Thornton by Eugene Crum, Jr, Johnny Reynolds. (Attachments: # 1 Text of Proposed Order)(Childs, Robert) (Entered: 03/30/2005)
720 BRIEF/MEMORANDUM in Support re 719 MOTION in Limine to Exclude the Expert Report, Opinions, and Testimony of Drs. Joan Haworth and Janet Thornton filed by Eugene Crum, Jr, Johnny Reynolds. (Childs, Robert) (Entered: 03/30/2005)
721 [VACATED PER 724 ORDER ENTERED 4/29/05] ORDER that defendants' 707 MOTION in Limine to exclude expert report, opinions and testimony of Edwin L. Bradley, Ph.D is DENIED as premature. Signed by Judge Myron H. Thompson on 3/30/2005. (dmn) Modified on 4/29/2005 (djy, ). (Entered: 03/30/2005)
722 ORDER that defendants' 716 Request for Status Conference is denied. Signed by Judge Myron H. Thompson on 3/30/2005. (dmn) (Entered: 03/30/2005)
***Attorney Russell Wayne Adams and Henry Wallace Blizzard, III added as additional counsel for Eugene Crum, Jr. (dmn) (No pdf attached.) (Entered: 03/31/2005)
723 ORDER FOR ALL PARTIES TO SHOW CAUSE, in writing, as to the following: (1) why plf USA and the state defs' joint 634 Motion to terminate the no−bypass rule and plf−intervenor Pope's 659 Motion to modify injunction as to the no−bypass rule should not be treated as also requests for preliminary relief; and (2) why said requests for preliminary relief should not be granted as outlined in this order; Show Cause Response due by 5/9/2005; further ORDERING that, by no later than 5/20/2005, the court will resolve whether preliminary relief should be granted, as further set out in order. Signed by Judge Myron H. Thompson on 4/29/05. (djy, ) (Entered: 04/29/2005)
724 ORDER directing as follows: (1) the court's 718 Order is vacated; (2) the Reynolds and Crum plfs−intervenors 702 MOTION to Strike is denied on the merits; (3) the Reynolds and Crum plfs−intervenors 702 alternative motion for additional discovery and expert reports is granted to the extent set out in order; (4) US Mag Judge Charles S. Coody is to resolve all disputes regarding the depositions, including where and when they should be taken; further ORDERING as follows: (1) the court's 721 Order is vacated; (2) the Reynolds and Crum plf−intervenors are allowed until 5/27/2005 to respond to the defs' 707 MOTION in Limine; (3) plf USA, state defs, and plf−intervenor Pope are allowed until 5/27/05 to respond to the 719 MOTION in Limine to Exclude the Expert Report, Opinions, and Testimony of Drs. Joan Haworth and Janet Thornton; (4) the Court will decide after 5/27/05 whether the motions in limine should be set for oral argument or an evidentiary hearing; further ORDERING that the parties are referred to Mag. Judge Coody to see if a plan can be developed for more extensive, but still quite limited, discovery by the Reynolds and Crum plf−intervenors, as further set out in order; Further ORDERING as follows: (1) plf USA and the state defs' joint 634 Motion to terminate the no−bypass rule and plf−intervenor Pope's 659 Motion to modify injunction as to the no−bypass rule are set for final and summary disposition, without oral argument, pursuant to Rule 56 of the FRCP on 9/19/2005, as further set out; (2) the parties are allowed until 8/1/2005 to complete all Discovery; (3) by 8/15/2005, the parties are jointly to develop and submit to the court a record of the evidence, as further set out; (4) plf USA, the state defs, and plf−intervenor Pope are allowed until 8/29/2005 to file their briefs; (5) the Reynolds and Crum plf−intervenors are allowed until 9/12/2005 to file their brief; (6) plf USA, the state defs, and plf−intervenor Pope are allowed until 9/19/2005 to file their replies; (7)

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 31 of 46

05/05/2005 05/05/2005
05/05/2005
05/05/2005 05/06/2005 05/06/2005
05/06/2005 05/09/2005 05/09/2005 05/09/2005 05/09/2005 05/09/2005 05/10/2005
05/20/2005

the briefs should address whether the motions at issue can be resolved pursuant to Rule 56, as further set out; (8) the parties must cite their briefs, as set out in order. Signed by Judge Myron H. Thompson on 4/29/05. (djy, ) (Entered: 04/29/2005)
725 RESPONSE to 723 Order to Show Cause, and Request for Clarification on the Scope of Discovery filed by State of Alabama Personnel Department. (Weller, Christopher) [Modified on 5/5/2005 to correct the pdf.−DMN] (Entered: 05/05/2005)
726 ORDER that a Status and Scheduling Conference is set for 5/6/2005 at 09:00 AM by conference call to be set up by counsel for the defendant before Honorable Charles S. Coody. The Clerk of Court is DIRECTED to provide a court reporter for this proceeding. Signed by Judge Charles S. Coody on 5/5/2005. Copy provided to DH, YG, HC, WS. (dmn) (Entered: 05/05/2005)
727 NOTICE of Correction re 725 Response to 723 Order to Show Cause and Request for Clarification on the Scope of Discovery. This notice is docketed to reflect that the pdf attached to the referenced document has been replaced. The original pdf was filed in the wrong case. (Attachments: #(1) Corrected pdf of Document 725 , Response to Order to Show Cause and Request for Clarification)(dmn) (Entered: 05/05/2005)
728 RESPONSE TO 723 ORDER TO SHOW CAUSE by United States of America. (Adelstein, Jay) [Modified on 5/6/2005 to create a relationship to Document 723 .−DMN] (Entered: 05/05/2005)
NOTICE of Docket Text Correction re 728 Response to 723 Order to Show Cause. The docket entry of the referenced document was modified to create a relationship to Document 723 . (dmn) (No pdf attached.) (Entered: 05/06/2005)
729 ORDER: Oral argument held 5/6/2005 on the remaining disputes about expert depositions. The depositions of the state defendants' experts shall be taken in Tallahassee, Florida consistent with the parameters specified in the court's 4/29/2005 724 Order. The parties consistent with their representations to the court shall determine a mutually agreeable date on which the depositions will be taken. Signed by Judge Charles S. Coody on 5/6/2005. (dmn) (Entered: 05/06/2005)
730 Minute Entry for proceedings held before Judge Charles S. Coody: Status Conference held on 5/6/2005 by telephone. (Recording Time 9:00 a.m. to 9:44 a.m.) (dmn) (Entered: 05/09/2005)
731 RESPONSE TO ORDER TO SHOW CAUSE by Timothy D. Pope re 723 Order to Show Cause,,. (Attachments: # 1 Exhibit Exh. A)(Brown, Gary) (Entered: 05/09/2005)
732 MOTION for Preliminary Injunction by Timothy D. Pope. (Brown, Gary) (Entered: 05/09/2005)
733 RESPONSE TO ORDER TO SHOW CAUSE by Eugene Crum, Jr re 659 Intervenor Complaint, 634 Motion for Miscellaneous Relief, 723 Order to Show Cause,,. (Adams, Russell) [Modified on 5/10/2005 to replace the pdf.−DMN] (Entered: 05/09/2005)
***Attorney Ann K. Wiggins and Rocco Calamusa, Jr. added for Johnny Reynolds; Robert L. Wiggins, Jr. added for Eugene Crum, Jr. (dmn) (No pdf attached.) (Entered: 05/10/2005)
***Attorney Richard Scott Clark added for Intervenor Plaintiff Timothy D. Pope. (dmn) (No pdf attached, see Document 731 for pdf.) (Entered: 05/11/2005)
734 NOTICE of Correction re 733 Response to Order to Show Cause. This notice is docketed to enter the corrected signature page and certificate of service into the record. The original pdf did not contain signatures. (Attachments: #(1) Corrected pdf of Response to Show Cause Order, Document 733 )(dmn) (Entered: 05/10/2005)
735 ORDER: 634 JOINT MOTION to terminate the no−bypass rule is TREATED as a Motion for Preliminary Relief filed by defendants and said motion is granted. 732

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 32 of 46

05/25/2005 05/27/2005 05/27/2005
05/27/2005
05/31/2005
06/01/2005 06/02/2005 06/07/2005 06/08/2005 06/10/2005 06/15/2005

Motion for Preliminary Relief is GRANTED. Pending final resolution of the joint motion to terminate the no−bypass rule (Doc. No. 634 and the motion to modify injunction as to the no−bypass rule (Doc. No. 659), the application of the no−bypass rule is suspended, effective no later than 6/20/2005. The court assumes that the defendants need a reasonable period of time to put this suspension into effect in an orderly and fair manner. Signed by Judge Myron H. Thompson on 5/20/2005. (dmn) (Entered: 05/20/2005)
736 RESPONSE to Motion re 719 MOTION in Limine to Exclude the Expert Report, Opinions, and Testimony of Drs. Joan Haworth and Janet Thornton filed by Timothy D. Pope. (Brown, Gary) (Entered: 05/25/2005)
737 RESPONSE in Opposition re 707 MOTION in Limine to Exclude Expert Report, Opinions, and Testimony of Dr. Edwin L. Bradley, filed by Eugene Crum, Jr, Johnny Reynolds. (Simon, Kell) (Entered: 05/27/2005)
738 BRIEF/MEMORANDUM in Opposition re 721 Order on 719 Motion in Limine, Defendants' Memorandum of Law in Opposition to the Crum/Reynolds Intervenors' Motion in Limine to Exclude the Expert Report, Opinions, and Testimony of Drs. Joan Haworth and Janet Thornton (Doc. no. 721) filed by State of Alabama Personnel Department. (Weller, Christopher) Modified on 5/31/2005 to reflect that this Memorandum in Opposition is actually opposing 719 Motion in Limine rather than the order on said motion as docketed by counsel (cc, ). (Entered: 05/27/2005)
739 Evidentiary Submission re 721 Order on Motion in Limine, Appendix of Deposition Excerpts in Support of Defendants' 738 Memorandum of Law in Opposition to the Crum/Reynolds Intervenors' Motion in Limine to Exclude the Expert Report, Opinions, and Testimony of Drs. Joan Haworth and Janet Thornton (Doc. no. 721) filed by State of Alabama Personnel Department. (Attachments: # 1 Exhibit Dr. Thornton Excerpts# 2 Exhibit Dr. Haworth Excerpts# 3 Exhibit Dr. Bradley Excerpts)(Weller, Christopher) Modified on 5/31/2005 to reflect that these evidentiary submissions are in support of 738 Memorandum in Opposition rather than the order on motion as docketed by counsel (cc, ). (Entered: 05/27/2005)
NOTICE of Docket Text Correction: 738 MEMORANDUM in Opposition was modified on 5/31/2005 to reflect that this is actually opposing 719 Motion in Limine rather than the order on said motion as docketed by counsel; 739 Evidentiary Submission was modified on 5/31/2005 to reflect that these evidentiary submissions are in support of 738 Memorandum in Opposition rather than the order on motion as docketed by counsel(cc, ) (Entered: 05/31/2005)
740 MOTION for Interim Award of Attorney Fees by Timothy D. Pope. (Brown, Gary) (Entered: 06/01/2005)
742 Objection by William C. Harrell (non−party). (dmn) (Entered: 06/08/2005)
741 MOTION for Leave to Submit a Reply Brief on or before 6/15/2005 to Reynolds/Crum Intervenors' 737 Opposition to Defendants' Motion in Limine to Exclude Report, Opinions and Testimony of Edwin L. Bradley, Ph.D. by State of Alabama Personnel Department and Thomas G. Flowers. (Weller, Christopher) [Modified on 6/8/2005 to add additional filer.−DMN] (Entered: 06/07/2005)
NOTICE of Docket Text Correction re 741 MOTION for Leave to Submit a Reply Brief on or before 6/15/2005 to Reynolds/Crum Intervenors' 737 Opposition to Defendants' Motion in Limine to Exclude Report, Opinions and Testimony of Edwin L. Bradley, Ph.D. The referenced docket entry was modified to add an additional filer. (dmn) (No pdf attached.) (Entered: 06/08/2005)
743 ORDER granting 741 Motion for Leave to submit reply . Signed by Judge Myron H. Thompson on 6/10/05. (vmc, ) (Entered: 06/10/2005)
744 ORDER re 740 MOTION for Attorney Fees and Expenses filed by Timothy D. Pope. Final Motion Submission Deadline set for 7/29/2005 without oral argument. Pope is to file a supplemental brief and evidentiary materials by 7/1/2005. Defendants to file their brief and evidentiary materials by 7/22/2005. Pope may file a reply brief by 7/29/2005. Signed by Judge Myron H. Thompson on 6/15/2005. (dmn) (Entered: 06/15/2005)

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 33 of 46

06/15/2005 06/15/2005
06/16/2005 07/01/2005
07/05/2005 07/22/2005 07/27/2005 07/27/2005 07/29/2005 08/04/2005 08/09/2005 08/09/2005 08/12/2005 08/12/2005

745 REPLY BRIEF re 737 Response in Opposition to Motion in Limine to Exclude Report, Opinions and Testimony of Edwin L. Bradley, Ph.D. (Doc. No. 737) filed by State of Alabama Personnel Department. (Weller, Christopher) (Entered: 06/15/2005)
746 APPENDIX of Deposition Excerpts in Support of Defendants' 745 Memorandum of Law in Reply to Reynolds/Crum Intervenors' 737 Response in Opposition to Defendants' 707 Motion in Limine to Exclude Report, Opinions and Testimony of Edwin L. Bradley, Ph.D. filed by State of Alabama Personnel Department. (Attachments: #(1) Exhibit Excerpts from Thornton Deposition; #(2) Exhibit Excerpts from Haworth Deposition; #(3) Exhibit Excerpts from Bradley Deposition)(Weller, Christopher) [Modified on 6/16/2005 to create relationship to Doc. 745 .−DMN] (Entered: 06/15/2005)
NOTICE of Docket Text Correction re 746 Appendix of Deposition Excerpts. The referenced docket entry was modified to create a relationship to Doc. 745 . (dmn) (No pdf attached.) (Entered: 06/16/2005)
747 BRIEF/MEMORANDUM in Support and Evidentiary Submission re 740 MOTION for Interim Award of Attorney Fees filed pursuant to 744 Order,, Set Deadlines, Supplemental Brief and Evidentiary Submission in Support of Motion for Interim Award of Attorneys' Fees and Expenses filed by Timothy D. Pope. (Attachments: # 1 Exhibit A − Itemization of Billing Entries# 2 Exhibit B − Summary of Attorneys Fees# 3 Exhibit C− Affidavit of Raymond P. Fitzpatrick, Jr.# 4 Exhibit D − Affidavit of David W. Proctor# 5 Exhibit E − Affidavit of Scott Clark# 6 Exhibit F − Affidavit of Stacey Woodcock)(Brown, Gary) Modified on 7/5/2005 to reflect that this entry contains an Evidentiary Submission and is in Support of 740 MOTION for Interim Award of Attorney Fees(cc, ). (Entered: 07/01/2005)
NOTICE of Docket Text Correction: 747 BRIEF/MEMORANDUM in Support was modified on 7/5/2005 to reflect that this entry contains an Evidentiary Submission and is filed in Support of 740 MOTION for Interim Award of Attorney Fees(cc, ) (Entered: 07/05/2005)
748 Objection of Defendants to Pope Intervenor's 740 MOTION for Award of Interim Attorneys' Fees and Expenses filed by State of Alabama Personnel Department. (Attachments: #(1) Affidavit of Alice Ann Byrne)(Weller, Christopher) (Entered: 07/22/2005)
749 Reynolds and Crum Intervenors' MOTION for Revised Scheduling Order to Complete Discovery by Eugene Crum, Jr. (Simon, Kell) (Entered: 07/27/2005)
***Attorney Susan Gale Donahue added for Eugene Crum, Jr. (dmn) (No pdf attached, see Doc. 749 for pdf.) (Entered: 07/28/2005)
750 REPLY BRIEF to 748 BRIEF/MEMORANDUM in Opposition to Award of Interim Attorneys' Fees and Expenses filed by Timothy D. Pope. (Attachments: #(1) Affidavit of Raymond P. Fitzpatrick Jr.; #(2) Affidavit of Scott Clark and Exhibit 1; #(3) Affidavit of Gary L. Brown)(Brown, Gary) (Entered: 07/29/2005)
751 MOTION to Withdraw as Attorney filed by Attorney Scott Clark by Timothy D. Pope. (Clark, Richard) (Entered: 08/04/2005)
752 ORDER granting 751 Motion for Richard Scott Clark to Withdraw as Attorney for Timothy Pope. Signed by Judge Myron H. Thompson on 8/9/2005. (dmn) (Entered: 08/09/2005)
***Attorney Richard Scott Clark terminated. (dmn) (No pdf attached, see Document 752 for pdf.) (Entered: 08/09/2005)
753 MOTION to Place Exhibits UNDER SEAL filed in Opposition to Motions to Terminate the No−Bypass Rule by Eugene Crum, Jr. and Johnny Reynolds. (Simon, Kell) [Modified on 8/15/2005 to add additional filer.−DMN] (Entered: 08/12/2005)
***Attorney Susan Gale Donahue added for Intervenor Plaintiff Johnny Reynolds. (dmn) (No pdf attached.) (Entered: 08/15/2005)

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 34 of 46

08/15/2005 08/17/2005 08/30/2005 09/08/2005 09/09/2005 09/09/2005
09/09/2005 09/09/2005
09/14/2005 09/15/2005 09/20/2005
09/23/2005 10/04/2005 10/05/2005

NOTICE of Docket Text Correction re 753 MOTION to Seal Exhibits. The referenced docket entry was modified to add an additional filer. (dmn) (No pdf attached.) (Entered: 08/15/2005)
754 ORDER granting Reynolds and Crum intervenors' 753 Motion to Place Exhibits Under Seal. Signed by Judge Myron H. Thompson on 8/17/2005. (dmn, ) (Entered: 08/17/2005)
755 Minute Entry for TELEPHONE CONFERENCE re 749 held before Judge Myron H. Thompson on 8/30/2005. (Court Reporter Mitchell Reisner.) (snc) (Entered: 08/30/2005)
756 Response to 4/29/2005 724 Order Directing Further Briefing on Joint Motion to Terminate No−Bypass Rule by United States of America. (Adelstein, Jay) Modified on 9/9/2005 (dmn). (Entered: 09/08/2005)
757 MOTION for Summary Judgment Regarding Motion to Modify Injunction (Doc. no. 659) by Timothy D. Pope. (Brown, Gary) (Entered: 09/09/2005)
758 BRIEF/MEMORANDUM in Support re 757 MOTION for Summary Judgment Regarding Motion to Modify Injunction (Doc. no. 659) and Evidentiary Submission filed by Timothy D. Pope. (Attachments: # 1 Exhibit A − Affidavit of Timothy D. Pope with attachments# 2 Exhibit B − Deposition Excerpt of Edwin L. Bradley)(Brown, Gary) (Entered: 09/09/2005)
759 MOTION for Summary Judgment on Joint Motion to Terminate No−Bypass Provisions of Injunctive Orders (Doc. 634) by State of Alabama Personnel Department. (Weller, Christopher) (Entered: 09/09/2005)
760 BRIEF/MEMORANDUM in Support re 759 MOTION for Summary Judgment on Joint Motion to Terminate No−Bypass Provisions of Injunctive Orders (Doc. 634) filed by State of Alabama Personnel Department. (Attachments: # 1 Appendix of Exhibits# 2 Exhibit A−E# 3 Exhibit F# 4 Exhibit G# 5 Exhibit H)(Weller, Christopher) (Entered: 09/09/2005)
761 MOTION for Extension of Deadline for Reynolds/Crum Intervenors to File Brief on No−Bypass Issues by Eugene Crum, Jr, Johnny Reynolds. (Simon, Kell) (Entered: 09/14/2005)
762 REPLY BRIEF re 758 BRIEF/MEMORANDUM in Support, of Summary Judgment on Intervenor's Motion to Modify Injunctions filed by State of Alabama Personnel Department. (Weller, Christopher) (Entered: 09/15/2005)
763 ORDER: (1) The Reynolds and Crum intervenors' 749 Motion for Revised Scheduling Order is denied. (2) The Reynolds and Crum intervenors' 761 Motion for Extension is granted. (3) The 757 MOTION for Summary Judgment Regarding Motion to Modify Injunction (Doc. no. 659) filed by Timothy D. Pope, and 759 MOTION for Summary Judgment on Joint Motion to Terminate No−Bypass Provisions of Injunctive Orders (Doc. 634) filed by State of Alabama Personnel Department are set for submission. Motion Submission Deadline set for 10/4/2005 without oral argument with opposing parties' brief and evidentiary materials due by said date. Signed by Judge Myron H. Thompson on 9/20/2005. (dmn) (Entered: 09/20/2005)
764 Minute Entry for proceedings held before Judge Myron H. Thompson : Telephone Conference held on 9/23/2005 re [763. (Conference held prior to scheduled Reynold monthly status conference.) (Court Reporter Mitchell Reisner.) (snc) (Entered: 09/23/2005)
766 BRIEF/MEMORANDUM in Opposition re 723 Order to Show Cause,, filed by Johnny Reynolds. (Attachments: # 1 Affidavit Declaration of Dr. Bradley# 2 Exhibit SPD Employment Guide# 3 Exhibit SPD List of Continuous Announcements)(Adams, Russell) (Entered: 10/04/2005)
767 MOTION for Leave to File a Response to the Reynolds and Crum Plaintiff−Intervenors' 766 Brief by State of Alabama Personnel Department. (Weller, Christopher) [Modified on 10/6/2005 to create a relationship to Doc. 766 .−DMN] (Entered: 10/05/2005)

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 35 of 46

10/06/2005
10/06/2005
10/12/2005 10/24/2005 10/26/2005
10/27/2005 10/31/2005 10/31/2005 05/22/2006 05/23/2006 05/23/2006 06/05/2006 06/05/2006 06/28/2006 06/29/2006 06/29/2006 06/30/2006 06/30/2006 06/30/2006

NOTICE of Docket Text Correction re 767 MOTION for Leave to File a Response to the Reynolds and Crum Plaintiff−Intervenors' 766 Brief. The referenced docket entry was modified to create a relationship to Doc. 766 . (dmn) (No pdf attached.) (Entered: 10/06/2005)
NOTICE of Docket Text Correction re 765 Notice (Other). The referenced docket entry was modified to create a relationship to Doc. 766 , to add exhibit text, and to reflect that exhibits 1−6 have been placed UNDER SEAL pursuant to Court 754 order. (dmn)(No pdf attached.) (Entered: 10/06/2005)
768 ORDER granting 767 Motion for Leave to File a Response. Signed by Judge Myron H. Thompson on 10/12/2005. (dmn) (Entered: 10/12/2005)
769 REPLY BRIEF re 766 BRIEF/MEMORANDUM in Opposition to Permanent Termination of the No−Bypass Rule filed by Timothy D. Pope. (Brown, Gary) (Entered: 10/24/2005)
770 REPLY BRIEF re 766 BRIEF/MEMORANDUM in Opposition Defendants' Memorandum of Law in Reply to Reynolds and Crum Plaintiff−Intervenors' Brief in Opposition to Permanent Termination of the No−Bypass Rule (Doc. No. 766) filed by State of Alabama Personnel Department. (Attachments: # 1 Affidavit Dukes Affidavit)(Weller, Christopher) (Entered: 10/26/2005)
771 MOTION to Withdraw as Attorney by Eugene Crum, Jr. (Gallion, Thomas) (Entered: 10/27/2005)
772 ORDER granting 771 Motion for Thomas Gallion to Withdraw as Attorney for Eugene Crum. . Signed by Judge Myron H. Thompson on 10/31/05. (djy, ) (Entered: 10/31/2005)
*** Attorney Thomas T. Gallion, III terminated per order entered 10/31/05. (NO PDF document attached to this notice) (djy, ) (Entered: 10/31/2005)
773 Joint MOTION For Ruling on Joint Motion to Terminate No−Bypass Provisions of Injunctive Orders by United States of America, State of Alabama Personnel Department. (Weller, Christopher) (Entered: 05/22/2006)
774 ORDER granting 773 Motion for ruling; The court will try to have a dispositive ruling before the end of June 2006 . Signed by Judge Myron H. Thompson on 5/23/06. (vma, ) (Entered: 05/23/2006)
775 RESPONSE to Motion re 773 Joint MOTION For Ruling on Joint Motion to Terminate No−Bypass Provisions of Injunctive Orders filed by Timothy D. Pope. (Fitzpatrick, Raymond) (Entered: 05/23/2006)
Mail Returned as Undeliverable. Mail sent to Sharon A. Seeley. order of 5/23/06 returned w/notation: returned to sender; box closed no order (vma, ) (Entered: 06/06/2006)
Mail Returned as Undeliverable. Mail sent to Stephen J. Curran; order of 6/5/06 returned w/notation: returned to snder; box closed no order (vma, ) (Entered: 06/06/2006)
776 MOTION to Withdraw as Attorney by Kell Simon by Private Plaintiffs. (Simon, Kell) (Entered: 06/28/2006)
777 ORDER granting 776 Motion for Kell Simon to Withdraw as Attorney. . Signed by Judge Myron H. Thompson on 6/29/06. (djy, ) (Entered: 06/29/2006)
*** Attorney Kell Ascher Simon terminated − per order of 6/29/06 − doc. 777 . (No PDF attached)(vma, ) (Entered: 07/23/2007)
778 ORDERED that the 707 and 719 Motions in Limine are denied as further set out . Signed by Judge Myron H. Thompson on 6/30/06. (sl, ) (Entered: 06/30/2006)
779 OPINION. An appropriate judgment will be entered. Signed by Judge Myron H. Thompson on 6/30/06. (sl, ) (Entered: 06/30/2006)
780 JUDGMENT as follows: (1) Intervenor Timothy D. Pope's 757 Motion for Summary Judgment, and the State defendants' 759 motion for summary judgment

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 36 of 46

07/12/2006
08/04/2006
09/20/2006 10/25/2006 07/19/2007 08/03/2007 08/06/2007 08/06/2007 08/10/2007 09/17/2007
09/21/2007 10/15/2007 10/15/2007 10/15/2007 10/24/2007

are granted; (2) plaintiff USA and the State defendants' 634 joint motion to terminate no−bypass provisions of injunctive orders and intervenor Pope's 659 motion to modify injunction are granted; (3) the application of the no−bypass rule in this litigation is permanently terminated. The clerk of court is directed to enter this document on the civil docket as a final judgment pursuant to Rule 58 of the FRCP. Signed by Judge Myron H. Thompson on 6/30/06. (Attachments: # 1 Civil Appeals Checklist)(sl, ) (Entered: 06/30/2006)
781 Second MOTION for Attorney Fees and Expenses by Timothy D. Pope. (Attachments: # 1 Exhibit 1: Fees Incurred after Filing of 1st Motion# 2 Exhibit 2: Grand Total of Fees and Expenses from 1st and 2nd Interim Motions for Fees)(Brown, Gary) (Entered: 07/12/2006)
782 BRIEF/MEMORANDUM in Opposition re 781 Second MOTION for Attorney Fees and Expenses Defendants' Memorandum of Law in Opposition to Intervenor Pope's Second Motion for Award of Interim Attorneys' Fees and Expenses (Doc. No. 781) filed by State of Alabama Personnel Department. (Weller, Christopher) (Entered: 08/04/2006)
783 BRIEF/MEMORANDUM in Support re 781 Second MOTION for Attorney Fees and Expenses filed by Timothy D. Pope. (Attachments: # 1 Exhibit 1 − Doc. no. 750)(Fitzpatrick, Raymond) (Entered: 09/20/2006)
784 MOTION to Expedite Entry of a Ruling on Motion for Interim Award of Attorneys Fees and Expenses, filed June 1, 2005 (Doc. no. 740 ) by Timothy D. Pope. (Fitzpatrick, Raymond) Modified on 10/26/2006 (vma, ). (Entered: 10/25/2006)
785 MOTION for Order Intervenor Pope's Motion for Entry of Ruling on Motions for Interim Awards of Attorney Fees (doc nos. 740 and 782 ) by Timothy D. Pope. (Fitzpatrick, Raymond) (Entered: 07/19/2007)
786 MOTION to Withdraw as Attorney by Thomas G. Flowers, State of Alabama Personnel Department. (Park, John) (Entered: 08/03/2007)
787 ORDER granting 786 Motion to Withdraw as Attorney. Signed by Judge Myron H. Thompson on 8/6/07. (vma, ) (Entered: 08/06/2007)
*** Attorney John J. Park, Jr terminated − per order of 8/6/07 − doc. 787 . (No PDF attached)(vma, ) (Entered: 08/06/2007)
788 ORDER granting 784 , 785 Motions for ruling to the extent the issue of fees will be ruled on by 9/7/07. Signed by Judge Myron H. Thompson on 8/10/07. (vma, ) (Entered: 08/10/2007)
789 MEMORANDUM OPINION AND ORDER, Granting 740 MOTION for Attorney Fees filed by Timothy D. Pope, 781 Second MOTION for Attorney Fees and Expenses filed by Timothy D. Pope to the extent that plaintiff−intervenor Pope shall have and recover from defendants Tommy G. Flowers, et al, the total sum of $61,499.70 for fees and expenses. Signed by Judge Myron H. Thompson on 9/17/07. (Attachments: # 1 appeals checklist)(vma, ) (Entered: 09/17/2007)
Mail Returned as Undeliverable. Mail sent to R. Frank Ussery; Opinion and Order of 9/17/07 returned w/notation: return to sender; (vma, ) (Entered: 09/24/2007)
790 NOTICE OF APPEAL as to 789 Memorandum Opinion and Order,, Terminate Motions, by State of Alabama Personnel Department (Weller, Christopher) (Entered: 10/15/2007)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet and 789 Memorandum Opinion and Order to US Court of Appeals re 790 Notice of Appeal (ydw, ) (Entered: 10/15/2007)
791 USCA Appeal Fees received $ 455 receipt number 4602000748 re 790 Notice of Appeal filed by State of Alabama Personnel Department (ydw, ) (Entered: 10/17/2007)
792 USCA Case Number 07−14854−D for 790 Notice of Appeal filed by State of Alabama Personnel Department. (ydw, ) (Entered: 11/02/2007)

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11/02/2007 11/15/2007 11/15/2007 11/19/2007 11/20/2007 11/21/2007 11/26/2007
11/27/2007
11/27/2007 11/27/2007
11/27/2007 12/17/2007 01/17/2008

793 TRANSCRIPT INFORMATION FORM by State of Alabama Personnel Department, et al. with following notation: "No hearing" (ydw, ) (Entered: 11/07/2007)
794 MOTION to Amend/Correct Defendants' Motion to Supplement the Record by State of Alabama Personnel Department. (Weller, Christopher) Modified on 11/19/2007 (Exhibit A transcript contained within main PDF document (qc/djy, ). (Entered: 11/15/2007)
SUPPLEMENT TO RECORD pursuant to ORDER entered 11/19/07 (NO PDF document attached−See Docket Entry 794 ). (djy, ) (Entered: 11/19/2007)
795 ORDER granting 794 Motion to supplement the request; directing the Clerk to supplement the record as requested. Signed by Judge Myron H. Thompson on 11/19/07. (djy, ) (Entered: 11/19/2007)
796 MOTION to Amend/Correct 790 Notice of Appeal by Don Siegelman, Thomas G. Flowers, Alabama Department of Corrections, Ala State Employees, Bob Cook, Al Sessions, Ann Geisenheimer, State of Alabama Personnel Department. (Weller, Christopher) (Entered: 11/20/2007)
797 MOTION for Extension of Time to File Notice of Appeal on Behalf of all State Defendants by Don Siegelman, Thomas G. Flowers, Alabama Department of Corrections, Ala State Employees, Bob Cook, Al Sessions, Ann Geisenheimer, State of Alabama Personnel Department. (Weller, Christopher) (Entered: 11/21/2007)
798 ORDER re 796 MOTION to Amend/Correct 790 Notice of Appeal filed by Ann Geisenheimer, Thomas G. Flowers, Ala State Employees, Bob Cook, State of Alabama Personnel Department, Al Sessions, Don Siegelman, Alabama Department of Corrections, 797 MOTION for Extension of Time to File Notice of Appeal on Behalf of all State Defendants filed by Ann Geisenheimer, Thomas G. Flowers, Ala State Employees, Bob Cook, State of Alabama Personnel Department, Al Sessions, Don Siegelman, Alabama Department of Corrections Motion Submission Deadline set for 12/10/2007, with all briefs due by said date. Signed by Judge Myron H. Thompson on 11/26/07. (vma, ) (Entered: 11/26/2007)
799 RESPONSE to Motion re 796 MOTION to Amend/Correct 790 Notice of Appeal, 797 MOTION for Extension of Time to File Notice of Appeal on Behalf of all State Defendants Intervenor−Plaintiff Pope's Response to Motion to Amend Notice of Appeal Due to Clerical Error (doc no 796) and Motion for Extension of Time to File Notice of Appeal on Behalf of All State Defendants (doc no. 797) filed by Timothy D. Pope. (Fitzpatrick, Raymond) (Entered: 11/27/2007)
800 CONSENT ORDER denying 796 Motion to Amend and granting 797 Motion for Extension of Time to File; Defendants shall file their amended notice of appeal on or before 11/29/07. Signed by Judge Myron H. Thompson on 11/27/07. (vma, ) (Entered: 11/27/2007)
801 AMENDED NOTICE OF APPEAL by Don Siegelman, Thomas G. Flowers, Alabama Department of Corrections, Ala State Employees, Bob Cook, Al Sessions, Ann Geisenheimer, State of Alabama Personnel Department. Amendment to 790 Notice of Appeal. (Weller, Christopher) Modified on 11/28/2007, to reflect that Attorney Christopher Weller is filing an Amended Notice of Appeal not an Amended Document (ydw, ). (Entered: 11/27/2007)
AMENDED NOTICE OF APPEAL by Don Siegelman, Thomas G. Flowers, Alabama Department of Corrections, Ala State Employees, Bob Cook, Al Sessions, Ann Geisenheimer, State of Alabama Personnel Department. TO 790 NOTICE OF APPEAL as to 789 Memorandum Opinion and Order. SEE DOCUMENT 801 FOR PDF. (ydw, ) (Entered: 11/28/2007)
802 Certificate of Readiness to US Court of Appeals re 790 Notice of Appeal, and AMENDED Notice of Appeal (Attachments: # 1 DOCKET ENTRIES) (ydw, ) (Entered: 12/17/2007)
803 Request for Record on Appeal By USCA Eleventh Circuit 11th Circuit Appeal No. 07−14854−DD, 790 Notice of Appeal, and AMENDED Notice of Appeal (ydw, )

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01/17/2008 07/01/2008 07/01/2008 07/07/2008 07/08/2008 08/19/2008
08/19/2008 08/20/2008 08/21/2008 08/22/2008 08/25/2008
08/25/2008

(Entered: 01/17/2008)
804 Certified and Transmitted Record on Appeal to US Court of Appeals re 790 Notice of Appeal, and Amended Notice of Appeal. (ydw, ) (Entered: 01/17/2008)
805 MOTION for Attorney Fees Motion for Award of Attorney's Fees and Costs on Appeal by Timothy D. Pope. (Attachments: # 1 Exhibit 1)(Fitzpatrick, Raymond) (Entered: 07/01/2008)
806 ORDER denying Pope's 805 Motion for Attorney Fees, as further set out in order. Signed by Honorable Myron H. Thompson on 7/1/08. (djy, ) (Entered: 07/01/2008)
Mail Returned as Undeliverable. Mail sent to Mark Jefferson Williams; Order of 7/1/08 returned w/notation: returned to sender; attempted unknown; return to sender; address incorrect. (vma, ) (Entered: 07/07/2008)
Mail Returned as Undeliverable. Mail sent to R. Frank Ussery; Order of 7/1/08 returned w/notation: return to sender; attempted unknown (vma, ) (Entered: 07/08/2008)
807 JUDGMENT, PER CURIAM AND BILL OF COST ISSUED AS MANDATE 08/19/08 of USCA as to aMENDED Notice of Appeal, filed by Ann Geisenheimer, Thomas G. Flowers, Ala State Employees, Bob Cook, State of Alabama Personnel Department, Al Sessions, Don Siegelman, Alabama Department of Corrections, 790 Notice of Appeal filed by State of Alabama Personnel Department, 11th Circuit Appeal No. 07−14854−DD; We see no abuse of discretion in the award of fees under the circumstances of this case. The special circumstances cited by the State defendants−−that the State defendants' efforts to terminate the no−bypass Rule predated Pope's intervention, that the parties' interests were aligned, that Pope's contribution was largely redundant, that the State incurred considerable expense in compiling the statistical data upon which the district court relied in the final termination decision, that the State defendants were under legal compulsion to apply the No−bypass Rule until the district court ruled otherwise, and that Pope's intervention was "claim jumping"−−are either contrary to the district court's findings, or are already accounted for by the district court's findings, or are already accounted for by the district court's deductions from the fee request, or otherwise fail to persuade us that the district court abused its discretion when it failed to apply the narrow special circumstances exception to the fee award statute. AFFIRMED. (ydw, ) (Entered: 08/19/2008)
USCA BILL OF COSTS filed by Appellee; COST TAXED against appellant in the amount of $83.45. (ydw, ) (Entered: 08/19/2008)
808 ORDER that pursuant to 807 USCA Mandate, 789 opinion and order of this court are continued in full force and effect. Signed by Honorable Myron H. Thompson on 8/20/2008. (cc, ) (Entered: 08/20/2008)
809 Appeal Record Returned: 790 Notice of Appeal filed by State of Alabama Personnel Department, 11th Circuit Appeal No. 07−14854−DD. (ydw, ) (Entered: 08/21/2008)
810 MOTION for Order to Show Cause by Timothy D. Pope. (Fitzpatrick, Raymond) (Entered: 08/22/2008)
811 ORDER TO SHOW CAUSE re: 810 Motion for Order to Show Cause filed by Timothy D. Pope; it is Ordered that the state defendants show cause, in writing by 9/5/08 as to why they should not be held in civil contempt for failing to comply with this court's opinion and order (doc. no. 789 ) Show Cause Response due by 9/5/2008. Signed by Honorable Myron H. Thompson on 8/25/08. (vma, ) (Entered: 08/25/2008)
812 ORDER denying as moot 810 MOTION for Order to Show Cause; that The State of Alabama defendants shall deliver payment of the total amount of $63,916.24 to counsel for Pope on or before August 28, 2008, in full compliance with theCourt's 789 order of September 17, 2007. Signed by Honorable Myron H. Thompson on 8/25/2008. (cc, ) (Entered: 08/25/2008)

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08/28/2008 12/02/2009 12/03/2009 12/11/2009 01/14/2010 01/14/2010 01/15/2010 01/15/2010 01/15/2010 01/19/2010
01/22/2010 01/22/2010
01/28/2010 01/28/2010 01/29/2010 02/08/2010

Mail Returned as Undeliverable. Mail sent to Mark Jefferson Williams; Order of 8/25/08 returned w/notation: return to sender; incorrect address (vma, ) (Entered: 08/28/2008)
813 CLERK'S NOTICE of DISPOSAL OF DISCOVERY MATERIALS, DEPOSITIONS, AND TRIAL EXHIBITS as to USA et al v Dir. AL Personnel Dept. et al (Attachments: # 1 Notice to Return or Dispose of Trial Exhibits)(ag, ) (Entered: 12/02/2009)
814 NOTICE by State of Alabama Personnel Department re 813 Notice (Other) to Return or Dispose of Trial Exhibits (Byrne, Alice) (Entered: 12/03/2009)
815 NOTICE of Correction re 813 Notice (Other) (ag, ) (Entered: 12/11/2009)
816 ORDER setting Status Conference for 1/28/2010 at 10:00 AM by telephone before Honorable Charles S. Coody. The United States shall set up the conference call. Signed by Honorable Charles S. Coody on 1/14/2010. (br, ) (Entered: 01/14/2010)
817 ORDER that the Order entered on January 14, 2010 816 be and is hereby CORRECTED to read that the conference call shall take place on January 28, 2010 at 10:00 a.m. Signed by Honorable Charles S. Coody on 1/14/2010. (br, ) (Entered: 01/14/2010)
818 MOTION to Withdraw as Attorney Marybeth Martin as counsel for United States by United States of America. (Attachments: # 1 Text of Proposed Order)(Adelstein, Jay) (Entered: 01/15/2010)
819 ORDER granting 818 MOTION to Withdraw Marybeth Martin as counsel for United States. Signed by Honorable Charles S. Coody on 1/15/2010. (br, ) (Entered: 01/15/2010)
820 MOTION to Continue by State of Alabama Personnel Department. (Byrne, Alice) Modified on 1/15/2010 to indicate that this was NOT an oral motion (br, ). (Entered: 01/15/2010)
821 ORDER granting 820 MOTION to Continue; resetting the conference call presently set for 10:00 a.m. on January 28, 2010; Status Conference reset for 1/28/2010 at 02:30 PM by telephone before Honorable Charles S. Coody. The United States shall set up the conference call. Signed by Honorable Charles S. Coody on 1/19/2010. (term: 1/28/10 conference call at 10:00 AM)(br, ) (Entered: 01/19/2010)
822 MOTION terminate injunction regarding temporary appointments by Alabama Department of Corrections, State of Alabama Personnel Department. (Weller, Christopher) (Entered: 01/22/2010)
823 Evidentiary Submission re 822 MOTION terminate injunction regarding temporary appointments Exhibits in support of Defendants' Motion and Supporting Memorandum to Terminate Injunction Regarding Temporary Appointments filed by Alabama Department of Corrections, State of Alabama Personnel Department. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Weller, Christopher) Modified on 1/25/2010 to simplify text (br, ). (Entered: 01/22/2010)
824 MOTION for Preliminary Injunction and Permanent Injunction regarding Temporary Appointments by Alabama Department of Corrections, State of Alabama Personnel Department. (Weller, Christopher) (Entered: 01/28/2010)
826 Minute Entry for proceedings held before Judge Honorable Charles S. Coody: Telephone Status Conference held on 1/28/2010 (PDF available for court use only). (Recording Time FTR: 2:44 − 2:54.) (ws, ) (Entered: 02/01/2010)
825 ORDER setting a telephone Status Conference for 2/25/2010 10:00 AM before Honorable Charles S. Coody; directing the US to set up the phone conference. Signed by Honorable Charles S. Coody on 1/29/10. Furnished to YG, HC &WS.(djy, ) (Entered: 01/29/2010)
827 RESPONSE to Motion re 824 MOTION for Preliminary Injunction and Permanent Injunction regarding Temporary Appointments filed by United States of America.

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 40 of 46

02/25/2010 02/26/2010 03/05/2010
03/09/2010 03/17/2010 03/22/2010 03/23/2010 03/24/2010 03/30/2010 03/30/2010 03/30/2010 04/07/2010 05/06/2010 12/02/2010

(Adelstein, Jay) (Entered: 02/08/2010)
828 ORDER setting this matter for a Telephone Conference on 3/25/2010 at 10:00 AM. The United States shall set up the conference call. Signed by Honorable Charles S. Coody on 2/25/2010. (br, ) (Entered: 02/25/2010)
829 Minute Entry for proceedings held before Judge Honorable Charles S. Coody: Telephone Status Conference held on 2/26/2010 (PDF available for court use only). (Recording Time FTR: 10:00 − 10:18.) (ws, ) (Entered: 02/26/2010)
830 PROTECTIVE ORDER that: 1. the Alabama State Personnel Department database shall be used solely for the purposes of this case, including among other things, in conjunction with testimony and as exhibits at trial, for witness preparation, and for any motion or hearing in this case; 2. The database shall not be used in connection with any other case or proceeding unless authorized by the Court or by agreement among counsel; 3. At the conclusion of the case, all copies of the database produced pursuant to this Protective Order shall be returned to the Alabama State Personnel Department or destroyed and counsel shall so certify; 4. This Order shall remain binding on the parties after the end of this case, and the Court shall retain jurisdiction to enforce its terms. Signed by Honorable Charles S. Coody on 3/5/2010. (br, ) (Entered: 03/05/2010)
831 CONSENT ORDER granting 822 Motion to terminate the injunctions regarding temporary appointments contained in this Courts 1970 and 1976 remedial orders; denying as moot 824 Motion for Preliminary Injunction. Signed by Honorable Myron H. Thompson on 3/9/2010. (br, ) (Entered: 03/09/2010)
832 MOTION to Dismiss Complaint In Intervention From Further Proceedings by Timothy D. Pope. (Fitzpatrick, Raymond) (Entered: 03/17/2010)
833 MOTION to Continue by State of Alabama Personnel Department. (Byrne, Alice) (Entered: 03/22/2010)
834 ORDER granting the 833 MOTION to Continue; conference call presently set for 10:00 AM on March 25, 2010 is reset for 3/30/2010 at 10:00 AM before Honorable Charles S. Coody. The United States shall set up the conference call. Signed by Honorable Charles S. Coody on 3/23/2010. (br, ) (Entered: 03/23/2010)
835 ORDER that the parties show cause, if any there be, in writing, as to why the 832 Motion to Dismiss should not be granted. Show Cause Response due by 4/2/2010. Signed by Honorable Myron H. Thompson on 3/24/2010. (br, ) (Entered: 03/24/2010)
836 RESPONSE to Motion re 832 MOTION to Dismiss Complaint In Intervention From Further Proceedings filed by United States of America. (Adelstein, Jay) (Entered: 03/30/2010)
837 ORDER that a telephone conference is set on May 5, 2010, at 10:00 a.m. The United States shall set up the conference call. Signed by Honorable Charles S. Coody on 3/30/2010. (br, ) (Entered: 03/30/2010)
838 Minute Entry for proceedings held before Judge Honorable Charles S. Coody: Telephone Status Conference held on 3/30/2010 (PDF available for court use only). (Recording Time FTR: 10:00 − 10:13.) (ws, ) (Entered: 03/30/2010)
839 ORDER granting the 832 MOTION to Dismiss Complaint In Intervention; plaintiff−intervenor Timothy D. Pope and his complaint are both dismissed. Signed by Honorable Myron H. Thompson on 4/7/2010. (br, ) (Entered: 04/07/2010)
840 Minute Entry for proceedings held before Judge Honorable Charles S. Coody: Telephone Conference held on 5/6/2010 (PDF available for court use only). (Recording Time FTR: 10:07 − 10:32.) (ws, ) (Entered: 05/06/2010)
841 ORDER setting this matter for a Telephone Conference on 1/5/2011 at 10:00 AM before Honorable Charles S. Coody. Signed by Honorable Charles S. Coody on 12/2/2010. (br, ) (Entered: 12/02/2010)

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 41 of 46

01/05/2011 01/06/2011 01/07/2011 01/11/2011 01/28/2011 01/28/2011
01/28/2011
01/28/2011 01/28/2011 02/03/2011 02/03/2011

842 Minute Entry for proceedings held before Judge Honorable Charles S. Coody: Telephone Conference held on 1/5/2011 (PDF available for court use only). (Recording Time FTR: 10:00 − 10:09.) (ws, ) (Entered: 01/06/2011)
Set/Reset Hearings: Telephone Conference set for 1/7/2011 03:00 PM by telephone before Honorable Myron H. Thompson. (ag, ) (Entered: 01/06/2011)
843 Minute Entry for proceedings held before Judge Honorable Myron H. Thompson: Telephone Conference held on 1/7/2011 (PDF available for court use only). (Court Reporter Mitchell Reisner.) (ag, ) (Entered: 01/07/2011)
844 ORDER setting Status Conference for 2/9/2011 at 11:00 AM in by telephone before Honorable Myron H. Thompson. Counsel are to arrange for the conference to be conducted by telephone. Signed by Honorable Myron H. Thompson on 1/11/2011. (br, ) (Entered: 01/11/2011)
845 MOTION Terminate the Remaining Injunctions re 368 Order, by Thomas G. Flowers, State of Alabama Personnel Department. (Byrne, Alice) Modified on 1/28/2011 to reflect that this is NOT and ORAL motion, the E−filer docketed ORAL in error (qc/djy, ). (Entered: 01/28/2011)
846 BRIEF/MEMORANDUM in Support re 845 MOTION Terminate the Remaining Injunctions re 368 Order, filed by Thomas G. Flowers, State of Alabama Personnel Department. (Attachments: # 1 Exhibit A, # 2 Exhibit B.1, # 3 Exhibit B.2, # 4 Exhibit B.3, # 5 Exhibit B.4, # 6 Exhibit B.5, # 7 Exhibit C, # 8 Exhibit D, # 9 Exhibit E, # 10 Exhibit F, # 11 Exhibit G, # 12 Exhibit H.1, # 13 Exhibit H.2, # 14 Exhibit H.3, # 15 Exhibit I, # 16 Exhibit J, # 17 Exhibit K, # 18 Exhibit L, # 19 Exhibit M, # 20 Exhibit N, # 21 Exhibit O, # 22 Exhibit P, # 23 Exhibit Q, # 24 Exhibit R, # 25 Exhibit S, # 26 Exhibit T, # 27 Exhibit U.1, # 28 Exhibit U.2, # 29 Exhibit U.3, # 30 Exhibit U.4, # 31 Exhibit U.5, # 32 Exhibit V)(Byrne, Alice) Modified on 1/28/2011 to correct text to remove the word ORAL from the motion (qc/djy, ). (Entered: 01/28/2011)
NOTICE of Docket Text Correction re 845 MOTION Terminate the Remaining Injunctions re 368 Order and 846 BRIEF/MEMORANDUM in Support to reflect that it is NOT and ORAL motion, the E−filer docketed ORAL in error. The Clerk's office has edited the text to remove ORAL from the entries. (NO PDF document attached to this notice). (djy, ) (Entered: 01/28/2011)
***Attorney Tara Smelley Knee added as counsel for Director Alabama Personnel Department, pursuant to 845 Motion. (br, ) (Entered: 01/31/2011)
847 MOTION for Leave to File Validation Reports Under Seal by Thomas G. Flowers, State of Alabama Personnel Department. (Attachments: # 1 Exhibit T Validation Report Listing)(br, ) (Entered: 02/02/2011)
848 ORDER granting 847 Motion for Leave to File Validation Reports Under Seal. Signed by Honorable Myron H. Thompson on 2/3/2011. (br, ) (Entered: 02/03/2011)
849 SEALED Exhibit T in Support of 845 Motion and 846 Brief. (Attachments: # 1 Exhibit T1 Part 1, # 2 Exhibit T1 Part 2, # 3 Exhibit T1 Part 3, # 4 Exhibit T1 Part 4, # 5 Exhibit T2 Part 1, # 6 Exhibit T2 Part 2, # 7 Exhibit T2 Part 3, # 8 Exhibit T2 Part 4, # 9 Exhibit T2 Part 5, # 10 Exhibit T2 Part 6, # 11 Exhibit T2 Part 7, # 12 Exhibit T2 Part 8, # 13 Exhibit T3, # 14 Exhibit T4 Part 1, # 15 Exhibit T4 Part 2, # 16 Exhibit T4 Part 3, # 17 Exhibit T5 Part 1, # 18 Exhibit T5 Part 2, # 19 Exhibit T5 Part 3, # 20 Exhibit T5 Part 4, # 21 Exhibit T6 Part 1, # 22 Exhibit T6 Part 2, # 23 Exhibit T6 Part 3, # 24 Exhibit T7 Part 1, # 25 Exhibit T7 Part 2, # 26 Exhibit T7 Part 3, # 27 Exhibit T8 Part 1, # 28 Exhibit T8 Part 2, # 29 Exhibit T8 Part 3, # 30 Exhibit T9 Part 1, # 31 Exhibit T9 Part 2, # 32 Exhibit T9 Part 3)(br, ) (Additional attachment(s) added on 2/3/2011: # 33 Exhibit T10, # 34 Exhibit T11 Part 1, # 35 Exhibit T11 Part 2, # 36 Exhibit T12 Part 1, # 37 Exhibit T12 Part 2, # 38 Exhibit T13 Part 1, # 39 Exhibit T13 Part 2, # 40 Exhibit T14 Part 1, # 41 Exhibit T14 Part 2, # 42 Exhibit T14 Part 3, # 43 Exhibit T14 Part 4, # 44 Exhibit T15 Part 1, # 45 Exhibit T15 Part 2, # 46 Exhibit T15 Part 3, # 47 Exhibit T15 Part 4, # 48 Exhibit T16 Part 1, # 49 Exhibit T16 Part 2) (br, ). (Additional attachment(s) added on 2/3/2011: # 50 Exhibit T17 Part 1, # 51 Exhibit T17 Part 2, # 52 Exhibit T17 Part 3, # 53 Exhibit T17 Part 4, # 54 Exhibit T17 Part 5, # 55

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 42 of 46

02/09/2011 02/10/2011 02/11/2011
02/25/2011 03/02/2011 03/02/2011

Exhibit T18 Part 1, # 56 Exhibit T18 Part 2, # 57 Exhibit T19 Part 1, # 58 Exhibit T19 Part 2, # 59 Exhibit T19 Part 3, # 60 Exhibit T20 Part 1, # 61 Exhibit T20 Part 2, # 62 Exhibit T20 Part 3, # 63 Exhibit T21 Part 1, # 64 Exhibit T21 Part 2, # 65 Exhibit T21 Part 3, # 66 Exhibit T22 Part 1, # 67 Exhibit T22 Part 2, # 68 Exhibit T23 Part 1, # 69 Exhibit T23 Part 2, # 70 Exhibit T23 Part 3, # 71 Exhibit T24 Part 1, # 72 Exhibit T24 Part 2, # 73 Exhibit T25 Part 1, # 74 Exhibit T25 Part 2, # 75 Exhibit T25 Part 3, # 76 Exhibit T26 Part 1, # 77 Exhibit T26 Part 2, # 78 Exhibit T26 Part 3, # 79 Exhibit T27 Part 1, # 80 Exhibit T27 Part 2, # 81 Exhibit T28 Part 1, # 82 Exhibit T28 Part 2, # 83 Exhibit T28 Part 3) (br, ). (Additional attachment(s) added on 2/3/2011: # 84 Exhibit T29 Part 1, # 85 Exhibit T29 Part 2, # 86 Exhibit T29 Part 3, # 87 Exhibit T30 Part 1, # 88 Exhibit T30 Part 2, # 89 Exhibit T31 Part 1, # 90 Exhibit T31 Part 2, # 91 Exhibit T31 Part 3, # 92 Exhibit T31 Part 4, # 93 Exhibit T32 Part 1, # 94 Exhibit T32 Part 2, # 95 Exhibit T32 Part 3, # 96 Exhibit T33 Part 1, # 97 Exhibit T33 Part 2, # 98 Exhibit T33 Part 3, # 99 Exhibit T33 Part 4, # 100 Exhibit T34 Part 1, # 101 Exhibit T34 Part 2, # 102 Exhibit T34 Part 3, # 103 Exhibit T35 Part 1, # 104 Exhibit T35 Part 2) (br, ). (Additional attachment(s) added on 2/3/2011: # 105 Exhibit T36 Part 1, # 106 Exhibit T36 Part 2, # 107 Exhibit T36 Part 3, # 108 Exhibit T36 Part 4, # 109 Exhibit T37 Part 1, # 111 Exhibit T37 Part 2, # 112 Exhibit T37 Part 3, # 113 Exhibit T38 Part 1, # 114 Exhibit T38 Part 2, # 115 Exhibit T38 Part 3, # 116 Exhibit T39 Part 1, # 117 Exhibit T39 Part 2, # 118 Exhibit T40 Part 1, # 119 Exhibit T40 Part 2, # 120 Exhibit T40 Part 3, # 121 Exhibit T41 Part 1, # 122 Exhibit T41 Part 2, # 123 Exhibit T42 Part 1, # 124 Exhibit T42 Part 2, # 125 Exhibit T42 Part 3, # 126 Exhibit T42 Part 4, # 127 Exhibit T43, # 128 Exhibit T44 Part 1, # 129 Exhibit T44 Part 2, # 130 Exhibit T45 Part 1, # 131 Exhibit T45 Part 2, # 132 Exhibit T45 Part 3) (br, ). (Additional attachment(s) added on 2/3/2011: # 133 Exhibit T46 Part 1, # 134 Exhibit T46 Part 2, # 135 Exhibit T46 Part 3, # 136 Exhibit T46 Part 4, # 137 Exhibit T46 Part 5, # 138 Exhibit T46 Part 6, # 139 Exhibit T46 Part 7, # 140 Exhibit T47 Part 1, # 141 Exhibit T47 Part 2, # 143 Exhibit T48 Part 1, # 144 Exhibit T48 Part 2, # 145 Exhibit T48 Part 3, # 146 Exhibit T49 Part 1, # 147 Exhibit T49 Part 2, # 148 Exhibit T49 Part 3, # 149 Exhibit T50 Part 1, # 150 Exhibit T50 Part 2, # 151 Exhibit T51 Part 1, # 152 Exhibit T51 Part 2, # 153 Exhibit T52 Part 1, # 154 Exhibit T52 Part 2, # 155 Exhibit T52 Part 3, # 156 Exhibit T53 Part 1, # 157 Exhibit T53 Part 2, # 158 Exhibit T54 Part 1, # 159 Exhibit T54 Part 2, # 160 Exhibit T55 Part 1, # 161 Exhibit T55 Part 2, # 162 Exhibit T56 Part 1, # 163 Exhibit T56 Part 2) (br, ). (Entered: 02/03/2011)
850 Minute Entry for proceedings held before Judge Honorable Myron H. Thompson: Telephone Conference re 845 Motion to Terminate Remaining Injunctions held on 2/9/2011 (PDF available for court use only). (Court Reporter Mitchell Reisner.) (ag, ) (Entered: 02/09/2011)
851 ORDER setting Telephone Conference for 3/4/2011 10:00 AM before Honorable Charles S. Coody; the US will set up this telephone conference. Signed by Honorable Charles S. Coody on 2/10/11. Furnished to Calendar group &WS.(djy, ) (Entered: 02/10/2011)
852 ORDER directing as follows: (1) the defendants' 845 MOTION to terminate the Remaining Injunctions is referred to US Mag Judge Charles S. Coody to oversee the narrowing and resolving the issues as much as is reasonably possible, as further set out in order; (2) setting another Status Conference for 5/4/2011 @ 08:00 AM before Honorable Myron H. Thompson; counsel for the parties are to arrange for the conference to be conducted by telephone. Signed by Honorable Myron H. Thompson on 2/11/11. Furnished to Calendar group &AG.(djy, ) (Entered: 02/11/2011)
853 MOTION to Withdraw as Attorney Motion to Withdraw by State of Alabama Personnel Department. (Barnett, Henry) (Entered: 02/25/2011)
854 ORDER granting 853 Motion to Withdraw as Attorney. Signed by Honorable Myron H. Thompson on 3/2/2011. (br, ) (Entered: 03/02/2011)
*** Attorney Henry Clay Barnett, Jr terminated pursuant to 854 Order. (br, ) (Entered: 03/02/2011)

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 43 of 46

03/04/2011 03/09/2011 03/21/2011
03/22/2011 03/22/2011 03/30/2011
03/30/2011 04/01/2011 04/01/2011 04/01/2011 04/01/2011 04/01/2011 04/08/2011
04/08/2011

855 Minute Entry for proceedings held before Judge Honorable Charles S. Coody: Telephone Conference held on 3/4/2011 (PDF available for court use only). (Recording Time FTR: 10:07 − 10:26.) (ws, ) (Entered: 03/07/2011)
856 ORDER setting Status Conference for 3/30/2011 at 10:00 AM by telephone before Honorable Charles S. Coody. The United States shall set up the conference call. Signed by Honorable Charles S. Coody on 3/9/2011. (br, ) (Entered: 03/09/2011)
857 MOTION for Order re 845 MOTION Terminate the Remaining Injunctions re 368 Order,, 846 BRIEF/MEMORANDUM in Support,,,, MOTION Motion For The Court To Order The Plaintiff And Plaintiff−Intervenors To File A Response To Defendants Motion To Terminate The Remaining Injunctions re 845 MOTION Terminate the Remaining Injunctions re 368 Order, by State of Alabama Personnel Department. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Byrne, Alice) (Entered: 03/21/2011)
858 NOTICE of Appearance by United States of America to add Louis Whitsett, Esq. as Co−counsel (Adelstein, Jay) Modified on 3/23/2011 to clarify text (br, ). (Entered: 03/22/2011)
***Attorney Louis Whitsett added for United States of America pursuant to 858 Notice of Appearance. (br, ) (Entered: 03/22/2011)
859 ORDER granting 857 Motion requesting that the plaintiff file a response as follows: (1)On or before April 8, 2011, the plaintiff shall file a precise and full statement delineating the specific issues which remain concerning the three agencies and two job classifications discussed during the conference held on March 30, 2011; (2) In the statement filed on April 8, 2011, the plaintiff shall indicate as to each issue which injunction is applicable to the specified issue. It is further ORDERING that in the interim between April 8, 2011, and the next conference call which will be set in May, the parties shall work cooperatively to further narrow the remaining issues. Signed by Honorable Charles S. Coody on 3/30/11. (djy, ) (Entered: 03/30/2011)
867 Minute Entry for proceedings held before Judge Honorable Charles S. Coody: Telephone Status Conference held on 3/30/2011 (PDF available for court use only). (Recording Time FTR: 10:01 − 10:18.) (ws, ) (Entered: 04/14/2011)
860 AFFIDAVIT re 846 BRIEF/MEMORANDUM in Support,,, Affidavit of Jackie Graham by State of Alabama Personnel Department. (Byrne, Alice) (Entered: 04/01/2011)
861 Joint MOTION for Order by State of Alabama Personnel Department, United States of America. (Attachments: # 1 Text of Proposed Order Proposed Order)(Byrne, Alice) (Entered: 04/01/2011)
862 ORDER TO SHOW CAUSE as to why 861 Motion for Order should not be granted; Show Cause Response due by 4/11/2011. Signed by Honorable Charles S. Coody on 4/1/11. (djy, ) (Entered: 04/01/2011)
863 ORDER setting a Telephone Conference call for 5/5/2011 @ 10:00 AM before Honorable Charles S. Coody; the US shall set up the conference call. Signed by Honorable Charles S. Coody on 4/1/11. Furnished to calendar group &WS.(djy, ) (Entered: 04/01/2011)
***Attorney Sharyn Tejani added for United States of America pursuant to 861 Joint Motion. (br, ) (Entered: 04/11/2011)
864 MOTION for Extension of Deadline Deadline to Show Cause Why Defendants' Motion Should Not Be Granted re 862 Order to Show Cause by Eugene Crum, Jr. and Johnny Reynolds. (Adams, Russell) Modified on 4/11/2011 to show this document was filed by intervenor plaintiffs, not the United States (br, ). (Entered: 04/08/2011)
865 ORDER granting the 864 MOTION for Extension of Time; Intervenor Plaintiff's show cause deadline reset for 4/18/2011. Signed by Honorable Charles S. Coody on 4/8/2011. (br, ) (Entered: 04/08/2011)

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 44 of 46

04/08/2011 04/18/2011
05/02/2011 05/04/2011 05/05/2011 05/05/2011 05/09/2011 05/11/2011 05/12/2011 05/18/2011
05/18/2011 05/31/2011
05/31/2011

866 Response to 859 Order by United States of America. (Whitsett, Louis) Modified on 4/11/2011 to add link (br, ). (Entered: 04/08/2011)
868 RESPONSE in Opposition re 862 Order to Show Cause why the 861 Motion should not be granted by Eugene Crum, Jr, Johnny Reynolds. (Attachments: # 1 Exhibit 1−1, # 2 Exhibit 1−2, # 3 Exhibit 1−3, # 4 Exhibit 1−4, # 5 Exhibit 1−5, # 6 Exhibit 1−6, # 7 Exhibit 1−7, # 8 Exhibit 1−8, # 9 Exhibit 1−9, # 10 Exhibit 1−10, # 11 Exhibit 1−11, # 12 Exhibit 1−12, # 13 Exhibit 1−13, # 14 Exhibit 1−14, # 15 Exhibit 1−15, # 16 Exhibit 1−16, # 17 Exhibit 1−17, # 18 Exhibit 1−18, # 19 Exhibit 1−19, # 20 Exhibit 1−20, # 21 Exhibit 1−21, # 22 Exhibit 1−22, # 23 Exhibit 1−23, # 24 Exhibit 1−24, # 25 Exhibit 1−25, # 26 Exhibit 1−26, # 27 Exhibit 1−27, # 28 Exhibit 1−28, # 29 Exhibit 1−29, # 30 Exhibit 1−30, # 31 Exhibit 1−31, # 32 Exhibit 1−32, # 33 Exhibit 1−33, # 34 Exhibit 1−34, # 35 Exhibit 1−35, # 36 Exhibit 1−36, # 37 Exhibit 1−37, # 38 Exhibit 1−38, # 39 Exhibit 1−39, # 40 Exhibit 1−40, # 41 Exhibit 2, # 42 Exhibit 3, # 43 Exhibit 4)(Adams, Russell) Modified on 4/19/2011 to simplify text (br, ). (Entered: 04/18/2011)
869 NOTICE of Hearing: Resetting Telephone Conference now set for 5/4/2011 at 8:00 a.m. to 11:00 AM by telephone before Honorable Myron H. Thompson. (ag, ) (Entered: 05/02/2011)
870 Minute Entry for proceedings held before Judge Honorable Myron H. Thompson: Telephone Conference held on 5/4/2011 (PDF available for court use only). (Court Reporter Mitchell Reisner.) (ag, ) (Entered: 05/04/2011)
Set/Reset Hearings: Telephone Conference set for 5/5/2011 10:00 AM in Courtroom 4B before Honorable Charles S. Coody. (ws, ) (Entered: 05/05/2011)
871 Minute Entry for proceedings held before Judge Honorable Charles S. Coody: Telephone Status Conference held on 5/5/2011 (PDF available for court use only). (Recording Time FTR: 10:00 − 10:21.) (ws, ) (Entered: 05/06/2011)
872 MOTION to Withdraw as Attorney by John R. Wible. (Wible, John) (Entered: 05/09/2011)
873 ORDER granting 872 Motion to Withdraw as Attorney. Signed by Honorable Myron H. Thompson on 5/11/2011. (br, ) (Entered: 05/11/2011)
874 Errata to 866 Response to 859 Order. (Adelstein, Jay) Modified on 5/12/2011 to clarify text (br, ). (Entered: 05/12/2011)
875 Supplemental 868 Response in Opposition to 862 Order to Show Cause Why the 861 Joint MOTION to Lift Injunction Should Not Be Granted filed by Private Plaintiffs. (Attachments: # 1 Exhibit A (examples of vacancies held open for over one year))(Adams, Russell) Modified on 5/19/2011 to clarify text (br, ). (Additional attachment(s) added on 5/19/2011: # 2 Redacted Attachment) (br, ). Document has been edited to restrict access to personal information pursuant to the E−Government Act. (Entered: 05/18/2011)
Minute Entry for proceedings held before Honorable Judge Charles S. Coody: Mediation Conference held on 5/18/2011 ( NO PDF attached). (ws, ) (Entered: 06/09/2011)
876 MEMORANDUM OF LAW IN REPLY to the Crum/Reynolds Intervenor−Plaintiffs' Opposition to the United States' and Defendants' 861 Joint MOTION to Terminate the Remaining Frazer Injunctions filed by State of Alabama Personnel Department. (Byrne, Alice) [Modified on 6/1/2011 to clean up text.−DMN] (Entered: 05/31/2011)
877 MEMORANDUM OF LAW IN REPLY to the United States' 866 Response to Magistrate Judge Coody's 859 Order dated 3/30/2011 and in Support of Defendants' 845 Motion to Terminate the Remaining Frazer Injunctions filed by State of Alabama Personnel Department. (Attachments: # 1 Exhibit A)(Byrne, Alice) [Modified on 6/1/2011 to clarify text and to create link to Doc. 845 and 859 .−DMN] (Main Document 877 replaced on 6/1/2011 due to typographical errors contained in first paragraph.) (dmn). (Entered: 05/31/2011)

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 45 of 46

06/01/2011 07/05/2011 08/23/2011
03/20/2012
03/21/2012 04/17/2012 04/27/2012
08/24/2012 09/17/2012 10/02/2012 11/09/2012 11/15/2012 11/30/2012 11/30/2012

878 NOTICE of Correction re 877 Reply. This notice is docketed to enter the corrected pdf of the referenced document into the record. The original pdf contained typographical errors in the first paragraph. The corrected pdf is attached to this notice. (Attachments: # 1 Corrected pdf of Doc. 877 )(dmn) (Entered: 06/01/2011)
879 Reply to Defendant's Submission Addressing the United States' Response to Judge Coody's Order by United States of America. (Whitsett, Louis) Modified on 7/5/2011 to clarify text (br, ). (Entered: 07/05/2011)
880 Defendants' Memorandum of Law in Response to United States' 879 Reply to Defendants' Submission Addressing the Untited States' Response to Magistrate Judge Coody's 859 Order, filed by Alabama Department of Corrections, State of Alabama Personnel Department. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Weller, Christopher) Modified on 8/24/2011 to clarify text (br, ). (Entered: 08/23/2011)
881 MOTION for Hearing re 861 Joint MOTION for Order Defendants' Motion for Hearing or, in the Alternative, for Ruling on the Crum/Reynolds Intervenors' Standing to Object to the Consent Order Proposed by Plaintiff United States and Defendants (Doc. 861−1) by Ala State Employees, Alabama Department of Corrections, State of Alabama Personnel Department. (Weller, Christopher) (Entered: 03/20/2012)
882 NOTICE of Appearance by Barbara Jean Wells on behalf of Ala State Employees (Wells, Barbara) (Additional attachment(s) added on 3/22/2012: # 1 Corrected certificate of service) (scn, ). (Entered: 03/21/2012)
883 ORDER directing that the 881 motion for hearing and alternative motion for ruling for ruling are set for submission, without oral argument, on April 27, 2012, with all briefs due by said date. Signed by Honorable Judge Myron H. Thompson on 4/17/12. (scn, ) (Entered: 04/17/2012)
884 RESPONSE in Opposition re 881 MOTION for Hearing re 861 Joint MOTION for Order, filed by Private Plaintiffs, Peggy Allen, Martha Ann Boleware, Jeffrey Brown, and Cecil Parker. (Adams, Russell) Modified on 4/30/2012 to add parties as filers and clean up docket text (scn, ). (Additional attachment(s) added on 4/30/2012: # 1 Corrected certificate of service) (scn, ). (Entered: 04/27/2012)
885 MOTION Emergency Relief Renewed Motion for Emergency Relief by State of Alabama Personnel Department. (Wells, Barbara) (Entered: 08/24/2012)
886 ORDER directing that the motion for emergency relief (doc. no. 885 ) is granted and that the court will make some resolution of the issue by October 2, 2012. Signed by Honorable Judge Myron H. Thompson on 9/17/12. (scn, ) (Entered: 09/17/2012)
887 ORDER DECLARING that the Crum/Reynolds intervenors now lack standing in this case; further ORDERING that the 881 MOTION for Hearing is DENIED. Signed by Honorable Judge Myron H. Thompson on 10/2/12. (djy, ) (Entered: 10/02/2012)
888 ORDER directing that a status conference by telephone be and is hereby set on November 15, 2012, at 2:00 p.m. CST. The United States shall set up the conference call. Signed by Honorable Judge Charles S. Coody on 11/9/12. (Furnished to Calendar/WS)(scn, ) (Entered: 11/09/2012)
Minute Entry for proceedings held before Honorable Judge Charles S. Coody: Settlement/ Status Conference held on 11/15/2012 (NO PDF attached). (ws ) (Entered: 12/05/2012)
889 Joint MOTION re 845 MOTION Terminate the Remaining Injunctions re 368 Order, to Partially Dissolve Prior Court Orders Granting Injunctive Relief by State of Alabama Personnel Department, United States of America. (Attachments: # 1 Text of Proposed Order Proposed Order)(Byrne, Alice) (Entered: 11/30/2012)
890 ORDER directing that, based on discussions and agreements reached among the parties, IT IS HEREBY ORDERED AND ADJUDGED that the 845 , 861 , and 889 motions to terminate and dissolve are granted as follows: All outstanding

Case: 2:68-cv-02709-MHT-CSC As of: 07/07/2014 10:59 AM CDT 46 of 46
injunctive provisions in previous orders entered in this case are DISSOLVED with regard to all Alabama State agencies with the exception of the following agencies: (a) Alabama Department of Conservation and Natural Resources and (b) Alabama Department of Environmental Management; further ORDERED that the injunctive provisions remaining against these two Alabama State agencies automatically expire December 31, 2014, without any further order from this Court. Signed by Honorable Judge Myron H. Thompson on 11/30/12. (scn, ) (Entered: 11/30/2012)

 
 US Court of Appeals for the Eleventh Circuit

http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX
United States Court of Appeals for the Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, GA 30303-2289
(404) 335-6100

07-14854-DD USA v. Thomas G. Flowers

Docket #: 07-14854-DD Short Style: USA v. Thomas G. Flowers Docket Date: 10/18/2007 Lead Case:
Agency: Nature of Suit: Civil Rights: Employment
Misc. Type: Clerk: Jackson, Elora
Clerk Phone: (404) 335-6173

District Information

Docket #: 68-02709-CV-T-N Judge: Myron H. Thompson

Dkt Date: 06/12/1968

District: Alabama-Middle

NOA Date: 10/15/2007

Office: MAL-Montgomery

Secondary Case Information

Docket #: Judge: Charles S. Coody Dkt Date: / /
Case Relationships

Docket # Short Style Relation Status

Pending Motions
No Pending Motions

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US Court of Appeals for the Eleventh Circuit

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United States Court of Appeals for the Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, GA 30303-2289
(404) 335-6100

07-14854-DD USA v. Thomas G. Flowers
UNITED STATES OF AMERICA, Plaintiff,

TIMOTHY D. POPE,

Invervenor-Plaintiff-Appellee,

JOHNNY REYNOLDS, et al.,

Intervenor-Plaintiffs,

versus

THOMAS G. FLOWERS, et al.,

Defendants,

STATE OF ALABAMA PERSONNEL DEPARTMENT,

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US Court of Appeals for the Eleventh Circuit

http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX
Defendant-Appellant.
United States Court OF Appeals FOR the Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, GA 30303-2289
(404) 335-6100

07-14854-DD USA v. Thomas G. Flowers

Appellant
State of Alabama Personnel Department Address Not On File E-Brief Tendered: Appellant filed on 12.10.2007 Appellant Brief Filed filed on 12.10.2007 Record Excerpts filed on 12.17.2007 E-Brief Tendered: Reply filed on 02.01.2008 Reply Brief Filed filed on 02.04.2008 Fees: Paid on 10.15.2007
Appellee
Timothy D. Pope Address Not On File

Appellant Attorney
Christopher W. Weller Capell & Howard, P.C. 150 S PERRY ST MONTGOMERY, AL 36104-4227 (334) 241-8066 Fax: (334) 323-8888 cww@chlaw.com No Briefing Information Found.
Appellee Attorney
Raymond P. Fitzpatrick, Jr. Fitzpatrick, Cooper & Clark, LLP 1929 3RD AVE N STE 600 BIRMINGHAM, AL 35203-3581 (205) 320-2255 Fax: (205) 320-7444 rpfitzpatrick@fcclawgroup.com E-Brief Tendered: Appellee filed on 01.09.2008 Appellee Brief Filed filed on 01.14.2008
Gary L. Brown Fitzpatrick, Cooper & Clark, LLP 1929 3RD AVE N STE 600 BIRMINGHAM, AL 35203-3581 (205) 320-2255 Fax: (205) 320-7444 gbrown@fcclawgroup.com No Briefing Information Found.

Initial Service

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US Court of Appeals for the Eleventh Circuit
Leura Garrett Canary U.S. Attorney's Office 1 COURT SQ STE 201 MONTGOMERY, AL 36104-3538 (334) 223-7280 leura.canary@usdoj.gov
Jay Adelstein 601 D STREET, ROOM 4910 Washington, DC 20004-2700 (202) 514-4761
Kenneth E. Vines U.S. Attorney's Office 1 COURT SQ STE 201 MONTGOMERY, AL 36104-3538 (334) 223-7280 Fax: (334) 223-7418 Kenneth.vines@usdoj.gov
Mary Beth Martin PO BOX 65968 WASHINGTON, DC 20035-5968
Patricia A. Snyder PO BOX 197 MONTGOMERY, AL 36101-0197
James Michael Cooper 22 INVERNESS CENTER PKWY STE 600 PO BOX 530790 BIRMINGHAM, AL 35253-0790
Ann K. Wiggins Wiggins, Childs, Quinn, et al 301 19TH ST N BIRMINGHAM, AL 35203-3144 (205) 328-0640 Fax: (205) 254-1500 Awiggins@gswc.com
Deborah A. Mattison Wiggins, Childs, Quinn & Pantazis, LLC 301 19TH ST N BIRMINGHAM, AL 35203-3118 (205) 314-0500 Fax: (205) 254-1500 damattison@gswc.com
Henry Wallace Blizzard, III Gordon, Silberman, Wiggins & Childs 420 20TH ST N STE 1400 Birmingham, AL 35203-3221 (205) 458-1302 Fax: (205) 254-1500 hwb@gswc.com
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US Court of Appeals for the Eleventh Circuit
Robert L. Wiggins 420 20TH ST N STE 1400 Birmingham, AL 35203-3221
Rocco Calamusa, Jr. Wiggins, Childs, Quinn & Pantazis, LLC 301 19TH ST N BIRMINGHAM, AL 35203-3118 (205) 458-1249 Fax: (205) 254-1500 rcalamusa@wcqp.com
Russell Wayne Adams Wiggins, Childs, Quinn & Pantazis, LLC 301 19TH ST N BIRMINGHAM, AL 35203-3118 (205) 328-0640 radams@wcqp.com
Susan Gale Donahue Wiggins, Childs, Quinn & Pantazis, P.C. 301 19TH ST N BIRMINGHAM, AL 35203-3144 (205) 328-0640 Fax: (205) 254-1500 sgd@wcqp.com
Henry C. Barnett, Jr. Capell & Howard PO BOX 2069 MONTGOMERY, AL 36102-2069 (334) 241-8000 hcb@chlaw.com
Mai Lan Fogal Isler PO BOX 2069 MONTGOMERY, AL 36102-2069 (334) 241-8069
Margaret L. Fleming Office of the Attorney General 11 S UNION ST MONTGOMERY, AL 36130-2102 (334) 353-3738 mfleming@ago.state.al.us
Patrick H. Sims Cabaniss, Johnston, Gardner, Dumas & O'Neal PO BOX 2906 MOBILE, AL 36652-2906 (334) 433-6961 psims@cabaniss.com
Richard N. Meadows 64 NORTH UNION ST., 300 FOLSOM ADM.
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US Court of Appeals for the Eleventh Circuit
BLDG. MONTGOMERY, AL 36130-0001
Alice Ann Byrne State of Alabama Personnel Department 64 N UNION ST MONTGOMERY, AL 36130-3020 (334) 242-3451 aabyrne@personnel.state.al.us
J. Richard Cohen Southern Poverty Law Center, Inc. 400 WASHINGTON AVE MONTGOMERY, AL 36104-4344 (205) 264-0286 Richard@spleenter.org
Byron R. Perkins 505 20TH ST N STE 825 BIRMINGHAM, AL 35203-4607 (205) 244-1115 Fax: (205) 244-1171

http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX
United States Court of Appeals for the Eleventh Circuit
56 Forsyth Street, N.W. Atlanta, GA 30303-2289
(404) 335-6100

07-14854-DD USA v. Thomas G. Flowers

File Date

Entry

Party

State of

10/15/2007

Fee Status: Paid Department

(10/15/07)

for

State

of

Alabama

Personnel

Alabama Personnel

Department

DKT2 (Docketing Notice) issued. To:Christopher W. Weller; c:Alice Ann Byrne; c:Ann K. Wiggins; c:Byron R. 10/22/2007 Perkins; c:Deborah A. Mattison; c:Debra P. Hackett; c:Gary L. Brown; c:Henry C. Barnett, Jr.; c:Henry Wallace Blizzard, III; c:J. Richard Cohen; c:+

10/24/2007 Probable Jurisdiction Noted:

State of Alabama Personnel Department

Pending No No No

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US Court of Appeals for the Eleventh Circuit

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11/01/2007 E-CIP Filed.

Christopher W. Weller

No

11/05/2007 Transcript Order Form - No Transcript Requested:

State of

Alabama Personnel

No

Department

11/05/2007 Appearance Form Submitted.

Gary L. Brown No

11/05/2007 Appearance Form Submitted.

Raymond P. Fitzpatrick, Jr.

No

11/05/2007 Certificate of Interested Persons:

State of

Alabama Personnel

No

Department

11/05/2007 Civil Appeal Statement Form:

State of

Alabama Personnel

No

Department

11/08/2007 Briefing Notice Issued

No

BR1CIV (Letter confirming brief due date) issued.

11/08/2007 To:Christopher W. Weller; c:Gary L. Brown; c:Raymond P.

No

Fitzpatrick, Jr.

11/28/2007 Amended Notice of Appeal:

State of

Alabama Personnel

No

Department

11/29/2007 Amended NOA

No

11/30/2007 Probable Jurisdiction Noted (Amended NOA)

No

12/06/2007 Appearance Form Submitted.

Christopher W. Weller

No

State of

12/10/2007 E-Brief Tendered: Appellant by Christopher W. Weller
30pages

Alabama Personnel

No

Department

12/10/2007 Appellant Brief Filed: (Atty: Christopher W. Weller)

State of

Alabama Personnel

No

Department

12/17/2007 Record Excerpts: (Atty: Christopher W. Weller)

State of

Alabama Personnel

No

Department

12/20/2007 Certificate of Readiness

No

01/09/2008 E-Brief Tendered: Appellee by Raymond P. Fitzpatrick, Jr.
30pages

Timothy D. Pope

No

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US Court of Appeals for the Eleventh Circuit

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01/14/2008 Appellee Brief Filed: (Atty: Raymond P. Fitzpatrick, Jr.)

01/15/2008

Over the Phone Extension to File Reply Brief Granted MS Until 2/4/08: (Atty: Christopher W. Weller)

by

01/17/2008

7-Day Confirmation Letter Christopher W. Weller)

for

Reply

Brief:

(Atty:

01/18/2008 Certificate of Readiness 01/18/2008 Record on Appeal 01/18/2008 Exhibits

02/01/2008 E-Brief Tendered: Reply by Christopher W. Weller
18pages

02/04/2008 Reply Brief Filed: (Atty: Christopher W. Weller)

Timothy D. Pope State of Alabama Personnel Department State of Alabama Personnel Department
State of Alabama Personnel Department State of Alabama Personnel Department

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 340 F.Supp. 703 (1972)
NAACP, Plaintiff, Phillip Paradise, Jr., Individually and on behalf of the class similarly situated, Intervening
Plaintiff, United States of America, Plaintiff and Amicus Curiae,
v. Walter L. ALLEN, as Director of the Alabama Department of Public Safety, his agents, assigns, and successors in office, Stanley Frazer, as Personnel Director, Personnel Dept.,
State of Alabama, his agents, assigns, and successors in office, Defendants. UNITED STATES of America by John N. MITCHELL, Attorney General, Plaintiff,
v. John S. FRAZER, as Director, Alabama Personnel Department, et al., Defendants.
Civ. A. Nos. 3561-N, 2709-N.
United States District Court, M. D. Alabama, N. D.
February 10, 1972. Supplemental Opinion March 24, 1972.
704 *704 Morris S. Dees, Jr., and Joseph J. Levin, Jr., Montgomery, Ala., for plaintiff and intervening plaintfif.
Ira DeMent, U. S. Atty., Kenneth E. Vines, Asst. U. S. Atty., M. D. of Ala., Montgomery, Ala., Douglas Huron, Civil Rights Div., of Justice, Washington, D. C., for the United States.
William J. Baxley, Atty. Gen., and Gordon Madison, E. Ray Acton and J. Victor Price, Jr., Asst. Attys. Gen., Montgomery, Ala., for defendants.
ORDER
JOHNSON, Chief Judge.
This action was originally brought by the National Association for the Advancement of Colored People on behalf of its members and all similarly situated Negroes in the State of Alabama. The complaint alleged that defendant Allen as Director of the Alabama Department of Public Safety and defendant Frazer as Personnel Director of the Alabama Personnel Department have followed a continuous and pervasive pattern and practice of excluding Negroes from employment in the Department of Public Safety. At the commencement of the hearing in this case, 705 a motion by Phillip *705 Paradise, Jr., to intervene as a party plaintiff, individually and on behalf of the class similarly situated, was granted.
The Department of Public Safety has two major components: the state troopers and those secretaries, clerks and others who comprise the supporting personnel. There are two other groups closely associated with the department: the trooper cadets and auxiliary troopers. The cadets are men too young to qualify as regular troopers but who receive training from the department toward becoming troopers. The auxiliary force is a group of unpaid volunteers which performs trooper functions under department direction in time of emergency and which is selected on the basis of a recommendation.
Because the agency's supporting staff is essentially identical to those personnel who were the focus of this Court's order in United States v. Frazer, 317 F.Supp. 1079 (M.D.Ala.1970) and because these employees are obtained from the defendant Frazer's department, this Court has determined that the appropriate relief as to these positions will be treated as a motion for supplemental relief under the Frazer decision.

The state troopers, however, are a different matter. This group is a distinct, specialized force which is unlike the relatively fungible secretaries and clerks who populate every office. For example, the troopers have their own height, weight and age requirements, maintain a separate testing program and require an oral interview. The trooper force has an extensive and specialized training program. For these reasons, it is clear that the state trooper aspect of this case justifies the filing and prosecution of separate litigation and requires separate adjudication.
The defendants have raised an objection to the NAACP's right to bring this suit. It was, however, the uncontroverted testimony of the association's state president, Mr. Thomas Reed, that some of its members have sought jobs with the department and have been refused. It is well established that the NAACP has standing to assert the rights of its members. NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 296, 81 S.Ct. 1333, 6 L.Ed.2d 301 (1961); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 458, 78 S.Ct. 1163, 2 L. Ed.2d 1488 (1958). Any standing question in this case was further obviated by the intervention of plaintiff Paradise. His testimony at the hearing for a temporary restraining order was undisputed that he was refused a trooper application. He contends that the refusal was racially motivated. Accordingly, defendants' motion to dismiss is due to be denied.
Plaintiffs have shown without contradiction that the defendants have engaged in a blatant and continuous pattern and practice of discrimination in hiring in the Alabama Department of Public Safety, both as to troopers and supporting personnel. In the thirty-seven-year history of the patrol there has never been a black trooper and the only Negroes ever employed by the department have been nonmerit system laborers. This unexplained and unexplainable discriminatory conduct by state officials is unquestionably a violation of the Fourteenth Amendment. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); United States v. Frazer, supra.
Under such circumstances as exist in these cases, the courts have the authority and the duty not only to order an end to discriminatory practices, but also to correct and eliminate the present effects of past discrimination. Hutchins v. United States Industries, Inc., 428 F. 2d 303, 310 (5th Cir. 1970); Local 53, Asbestos Workers v. Vogler, 407 F.2d 1047, 1052 (5th Cir. 1969). The racial discrimination in this instance has so permeated the 706 Department of Public Safety's employment policies that both *706 mandatory and prohibitory injunctive relief are necessary to end these discriminatory practices and to make some substantial progress toward eliminating their effects.
While further discrimination will be enjoined, this Court is not inclined to order new tests or testing procedures. This Court recognizes that Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) is authority for the view that if an employment practice which operates to exclude Negroes is unrelated to job performance, the practice is prohibited. Yet there are persuasive reasons for avoiding the imposition of new procedures. First, the Government's selection technique expert, John E. Furcon, testified that it would require a minimum of six months to properly analyze the job of state trooper and compile proper selection methods. The plaintiffs' expert, Dr. Richard S. Barrett, estimated that the process may take as much as four or five years, particularly in light of the fact that there are presently no black troopers. Thus, it would in all likelihood take several years to implement the selection procedures which these experts envision.
Second, Dr. Barrett described Mr. Furcon's cost estimate of $40,000 for the completion of such an analysis as perhaps too low. Imposition of such a study would be an undue burden upon the state. Moreover, in light of the affirmative relief which this Court will require, primary concern over the testing procedures is unnecessary. This is not to say that the state may not undertake some revision of its selection methods if it desires to do so. In fact, the testimony reflects that changes are appropriate and necessary. This Court will simply not order it at this time. This particular aspect of the state trooper case will be reserved pending receipt of implementation reports to be filed by the defendants.
Accordingly, it is the order, judgment and decree of this Court:
I. That defendants' motion to dismiss be and the same is hereby denied.

II. That the defendants John S. Frazer, as Director, Alabama Personnel Department and Walter L. Allen, as Director, Alabama Department of Public Safety, their agents, officers, successors in office, employees and all persons acting in concert or participation with them, be and they are hereby enjoined from engaging in any employment practices, including recruitment, examination, appointment, training, promotion, retention or any other personnel action, for the purpose or with the effect of discriminating against any employee, or actual or potential applicant for employment, on the ground of race or color.
III. It is further ordered that the defendants be and they are each hereby enjoined from failing to hire and permanently employ after the probationary period, one Negro trooper for each white trooper hired until approximately twenty-five (25) percent of the Alabama state trooper force is comprised of Negroes. This injunction applies to the cadet and auxiliary troopers as well as to the regular troopers. It shall be the responsibility of the Department of Public Safety and the Personnel Department to find and hire the necessary qualified black troopers.
IV. It is further ordered that the defendants be and they are hereby enjoined from conducting any training courses for the purpose of training new troopers until the groups to be given said training courses are comprised of approximately twenty-five (25) percent black trooper candidates.
V. It is further ordered that the defendants be and they are each hereby permanently enjoined from failing to hire supporting personnel for the Department of Public Safety in the ratio of one Negro for each white until approximately twenty-five (25) percent of the supporting personnel are black. The decree in United States v. Frazer, 317 F.Supp. 1079 (M.D.Ala.1970) is hereby amended insofar as the Department of Public Safety's employment practices are concerned.
707 *707 VI. It is further ordered that eligible and promotional registers heretofore used for the purpose of hiring troopers be and they are hereby abrogated to the extent necessary to comply with this decree.
VII. It is further ordered that:
1. The defendants shall assign employees on the basis of their training and ability, without regard to race. Negro employees shall not be assigned to serve exclusively or predominantly Negro clientele.
2. The defendants shall advise the public in all advertisements and announcements that they will appoint and employ persons on an equal opportunity, merit basis, without discrimination on the ground of race or color. In such public announcements, the defendants shall advise potential and actual applicants and employees of their right to be free from discrimination. Said announcements shall be made throughout the State of Alabama within thirty days from the date of this order.
3. The defendants shall adopt and implement a program of recruitment and advertising which will fully advise the Negro citizens of the State of Alabama of the employment opportunities now available to them with the Alabama Department of Public Safety. The defendants shall institute regular recruitment visits to predominantly Negro schools (vocational, high and college) throughout the State of Alabama, such visits to be made in person by appropriate officials of the Alabama Department of Public Safety.
4. No commitments of employment given by either of the defendants or any of their agents to any applicant or potential applicant, short of actual hiring prior to January 13, 1972, the date the temporary restraining order was entered in the state trooper case, shall be given any priority over the hiring ratio set out in this decree. The present hiring lists, compiled as a result of the discriminatory practices, may be used to hire the white troopers, white trooper cadets and white supporting personnel. New lists, however, must be compiled and utilized for the black troopers, black trooper cadets and black supporting personnel.
5. The defendants shall file through their counsel with this Court within ninety days from the date of this decree a written report setting forth in detail the efforts which have been undertaken to recruit and hire black applicants. The report shall also include the number of vacancies filled among the state troopers, the auxiliary troopers, the cadets and the supporting personnel of the Department of Public Safety during this period and the number of each race hired into each of these groups.

VIII. It is further ordered that the costs of this proceeding be and they are hereby taxed to the defendants in Civil Action No. 3561-N, for which execution may issue.
The Court retains jurisdiction over these cases.
SUPPLEMENTAL OPINION
In a formal order, made and entered in this case on February 10, 1972, this Court found that defendants had practiced blatant and continuous discrimination in hiring in the Alabama Department of Public Safety both as to troopers and supporting personnel.[1] Pursuant to this finding, the Court directed, among other things, that 708 defendants employ one Negro trooper for each white trooper *708 hired until approximately twenty-five percent of the Alabama state trooper force was comprised of Negroes.[2] On February 24, plaintiffs filed with the Court a revised bill for the costs incurred in litigating this case,[3] and that bill, along with plaintiffs' previous request for attorneys' fees,[4] now is submitted for the Court's determination.
Because defendants have not contested their liability for the usual items of costs, this Court proceeds to plaintiffs' prayer for attorneys' fees. Defendants acknowledge that the Court may, in the exercise of its equity powers, grant such relief. See, e. g., Sprague v. Ticonic Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L. Ed. 1184 (1939); Morrow v. Crisler, C. A. No. 4716 (S.D.Miss., Sept. 29, 1971). They argue, however, that an award of attorneys' fees is unwarranted in this case because they have attempted in good faith, albeit unsuccessfully, to hire black troopers. This contention is not supported by the evidence. Plaintiffs have demonstrated and this Court has noted that in the thirty-seven-year history of the Alabama Trooper organization there has never been a black trooper, and the only Negroes ever employed by the department have been nonmerit system laborers. NAACP v. Allen, 340 F.Supp. 703 (M.D.Ala.1972). Such statistics, far from being compatible with defendants' claim of good faith, constitute a substantial showing by plaintiffs of bad faith on the part of defendants and their predecessors in office.[5] In addition, because the constitutional principles applicable to the case sub judice were clear long before this suit was filed, see, e. g., Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Morrow v. Crisler, supra, and because defendants unquestionably knew and understood that their discriminatory practices violated the Fourteenth Amendment to the United States Constitution, see United States v. Frazer, 317 F.Supp. 1079 (M.D.Ala.1970), their defense of this lawsuit amounts to unreasonable and obdurate conduct which necessitated the expense of litigation. Consequently, because of defendants' bad faith, this case is an appropriate one for the awarding of a reasonable attorneys' fee.
This Court, however, feels that the attorneys' fee award should be premised on a broader basis than defendants' bad faith. When plaintiffs, through the prosecution of a lawsuit, benefit the class they represent and effectuate a 709 strong congressional policy, they are entitled to attorneys' fees regardless of defendants' *709 good or bad faith. Mills v. Electro Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970); see Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968); Miller v. Amusement Enterprises, Inc., 426 F.2d 534 (5th Cir. 1970). Indeed, under such circumstances, the award loses much of its discretionary character and becomes a part of the effective remedy a court should fashion to encourage public-minded suits and to carry out congressional policy. See Lee v. Southern Home Sites, 444 F.2d 143 (5th Cir. 1971); Sims v. Amos, 340 F. Supp. 691 (M.D.Ala., 1972) (three-judge court).
In the present case, the benefit accruing to plaintiffs' class is substantial and important. Employment discrimination based upon race is reprehensible on any level, and especially so when practiced by state government.[6] Those plaintiffs acting in the capacity of private attorneys general, who establish the existence of such discrimination by a state agency and who, through litigation, procure relief from its onerous effects, not only provide the members of their class with added employment opportunities, but also relieve them of the badge of opprobrium which necessarily attaches to a group discriminatorily excluded, solely by reason of their race, from particular fields of endeavor.

In addition, congressional policy strongly favors the vindication of federal rights violated under color of state law, 710 42 U.S.C. § 1983,[7] and, more specifically, the enforcement and protection *710 of the right to equal job
opportunities, 42 U.S.C. §§ 2000e, 2000e-1 to 2000e-15.[8] Surely, this congressional policy is as compelling as that embodied in 42 U.S.C. § 1982[9] and given effect by an award of attorneys' fees in Lee v. Southern Home Sites, supra. Consequently, because the benefit to plaintiffs' class is significant, and because, in bringing this suit, plaintiffs have promoted the purposes of congressional legislation, the case sub judice clearly falls among those meant to be encouraged under the principles articulated in Piggie Park Enterprises, Inc. and Mills and expanded upon in Southern Home Sites and Bradley v. School Bd. of Richmond, 53 F.R.D. 28 (E.D.Va.1971). See Sims v. Amos, supra.
Other circumstances also render an allowance of attorneys' fees appropriate. The prosecution of the kind of case involved here, like that of the desegregation suits described in Bradley, "is an enterprise on which any private individual should shudder to embark." 53 F.R.D. at 40. Because the probability of a large damage recovery is remote, absent court-awarded attorneys' fees, plaintiffs or their lawyers who bring class actions seeking to preserve civil liberties usually must make substantial financial sacrifices. In addition, a lawyer representing black plaintiffs in an employment discrimination case, or in any civil rights litigation, is likely to suffer social, political and community ostracism. This likelihood is multiplied, of course, in a case such as the present one in which plaintiffs have sued high-ranking state officials and have alleged and proved racial discrimination. Even more damaging to an attorney involved in such litigation is the probability that he will be estranged from other members of his profession who are unwilling to participate in, or even lend moral support to, suits seeking to vindicate the public good. Because of these factors and the paucity of damage awards in civil rights suits, private plaintiffs and lawyers generally spurn involvement with them. Consequently, as pointed out in Sims v. Amos, in order to encourage pro bono publico litigation and to carry out congressional policy, an award of attorneys' fees is essential.
Accordingly, it is the order, judgment and decree of this Court:
1. That plaintiffs' costs in the amount of $889.67 be and the same are hereby taxed against defendants;[10]
2. That the United States' costs in the amount of $941.01 be and the same are hereby taxed against defendants; and
3. That attorneys' fees in the amount of $3,500 be and the same are hereby taxed against defendants.
It is further ORDERED that said costs and attorneys' fees be paid within thirty days from this date.
[1] Because the supporting staff of the Alabama Department of Public Safety is essentially identical to those personnel who were the focus of this Court's order in United States v. Frazer, 317 F.Supp. 1079 (M.D.Ala.1970), and because these employees are obtained from the defendant Frazer's Department, this Court determined that the aspect of plaintiffs' complaint related to these positions would be treated as a motion for supplemental relief under the Frazer decision. Nevertheless, for the sake of convenience, in the text, the two cases involved in this litigation will be referred to in the singular.
[2] The Court also ordered the defendants to hire supporting personnel for the Department of Public Safety in the ratio of one Negro for each white until approximately twenty-five percent of the supporting personnel were black.
[3] Plaintiffs filed their original bill of costs on February 16, 1972, and defendants filed objections thereto on February 23. Subsequently, plaintiffs revised their bill of costs, satisfying most of the defendants' objections. Except with regard to attorneys' fees, defendants now interpose no objections to the items of cost on plaintiffs' revised bill. The United States, plaintiff and amicus curiae in this case, also has filed a bill of costs to which defendants make no objection.
[4] Plaintiffs requested attorneys' fees in their complaint filed January 3, 1972. Defendants do not dispute that if plaintiffs are entitled to an award of attorneys' fees, the amount they seek, $3,500, is reasonable. They do contest, however, that plaintiffs are entitled to any award whatsoever.

[5] Moreover, in United States v. Frazer, 317 F.Supp. at 1093, this Court ordered the Department of Personnel to "adopt and implement a program of recruitment and advertising which will fully advise Negro citizens of the State of Alabama of the employment opportunities available to them with the State of Alabama agencies." At least with regard to positions in the Department of Public Safety, this obligation has not been fulfilled. Regardless of whether this omission is the product of intentional discrimination or merely of neglect, it clearly amounts to bad faith on the part of defendants.
[6] Employment discrimination based upon race is equally if not more reprehensible when practiced by the Federal Government. As the defendants point out in a memorandum filed in this case, there was admitted in evidence in United States v. Frazer, supra, unexplained and undisputed facts reflecting, absent some explanation, flagrant racially discriminatory hiring practices by several federal agencies operating in the State of Alabama; for example, in its Maxwell and Gunter Air Force Base operations, the United States employed at that time a total of 2,183 civilian employees. Only 387 were black, and of these 387 black employees 353 were employed on an hourly wage basis, indicating that they were employed as laborers, with only 15 blacks being employed under the General Employment Schedule.
The United States Department of Agriculture employed in the State of Alabama 1,144 civilian employees. Only 37 0907 3.2 percent 0907 of these were black.
The United States Civil Service, operating in Alabama, had a total of 51 employees, only 3 of whom were black. The United States Department of Defense had 477 civilian employees in Alabama, only 9 0907 1.9 percent 0907 of whom were black. The United States Department of Justice had a total of 265 employees in Alabama; only 5 of these 0907 1.9 percent 0907 were black. Of these 5, all except one were in grade 7 or below.
The United States Department of Health, Education and Welfare had a total of 2,128 employees in Alabama. Only 203 of these were black, and of this number of black employees, 158 were in grade 4 or below.
The United States Department of Housing and Urban Development had a total of 121 civilian employees in Alabama, only 3 of whom 0907 2.5 percent 0907 were black. Two of these three were in grade 3. The United States Department of the Interior employs in the State of Alabama 173 persons. Of this total only 1 0907 0.6 percent 0907 was black. The National Aeronautics and Space Agency had 6,641 employees in Alabama, only 81 of whom 0907 1.2 percent 0907 were black. Among Selective Service employees in the State of Alabama there was not a single black.
The United States Department of Transportation had 386 employees in the State of Alabama; only 6 of them 0907 1.6 percent 0907 were black. The United States Treasury Department employed 696 persons in Alabama, 13 of whom 0907 1.9 percent 0907 were black.
However gross such practices are on the part of the Federal Government, this will not justify this Court's failure to grant the plaintiffs in this case the full relief, including attorneys' fees, to which they are clearly entitled. Such practices on the part of federal agencies do not constitute any type of a defense in this case. Relief as to the federal agencies must await a justiciable presentation to a forum with competent jurisdiction between parties entitled to litigate the matter.
[7] With regard to an award of attorneys' fees, it is of no consequence that 42 U.S. C. § 1983, the statute under which plaintiffs filed this suit, is silent on the availability of such an award. See Long v. Georgia Kraft Co., 455 F.2d 331 (5th Cir., 1972), and the many cases cited therein; Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972).
[8] Title VII of the Civil Rights Act of 1964 provides for the allowance of a reasonable attorneys' fee. 42 U.S.C. § 2000e-5(k). Consequently, had the state officials involved in this case been subject to suit under Title VII, they also would have been exposed to liability for attorneys' fees. This Court sees no justification for holding state governments to lower standards than are required of private employers, nor for subjecting them to any less liability than that to which private employers are exposed. The same policies supporting a grant of attorneys' fees in Title VII cases apply to employment discrimination cases brought under 42 U.S.C. §§ 1981, 1983. See generally, Lee v. Southern Home Sites, 444 F.2d at 147.
[9] Title 42, Section 1982 provides:

"All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." [10] No official immunity inures to the benefit of the state officers named as defendants in this case. See Sims v. Amos, supra at n. 8.
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