CORRECTED

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM J. SONNTAG,

Plaintiff-Appellant,

v. No. 96-2389

JOHN M. MCCONNELL, Vice Admiral,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Frederic N. Smalkin, District Judge.

(CA-95-1420-S)

Argued: December 4, 1997

Filed: August 27, 1998

Before LUTTIG and WILLIAMS, Circuit Judges, and MERHIGE,*

Senior United States District Judge for the Eastern District of

Virginia, sitting by designation.

_________________________________________________________________

Dismissed and remanded by unpublished order.

_________________________________________________________________

COUNSEL

ARGUED: George Michael Chuzi, KALIJARVI, CHUZI & NEW-

_________________________________________________________________

*Senior Judge Merhige participated in oral argument but retired prior

to the time the order was entered. The decision is filed by a quorum of

the panel pursuant to 28 U.S.C. § 46(d).
MAN, P.C., Washington, D.C., for Appellant. Allen F. Loucks,

OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,

Maryland, for Appellee. ON BRIEF: Elizabeth L. Newman, KALIJARVI, CHUZI & NEWMAN, P.C., Washington, D.C., for Appellant. Lynne A. Battaglia, United States Attorney, Charles J. Peters,

Assistant United States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________

ORDER

The parties have jointly moved for a dismissal of the instant appeal

pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure,

representing that they have settled their dispute by agreement. There

being no remaining controversy, we grant the joint motion to dismiss.

For the reasons recited below, we vacate the judgment of the district

court and remand with instructions to dismiss the case as moot.

In dismissing this appeal, we believe we would be remiss were we

not to express our concern over the conduct of the United States

Attorney during the pendency of this appeal. That conduct, which

seemingly resulted because the United States Attorney was unwilling

to express a view for the United States either in support of or in opposition to the very significant holding of law under review in this court,

has left the court with the firm belief that the integrity of its processes

have been compromised.

Although the two cases are unrelated, the case before us has proceeded on a schedule roughly parallelling that of Piscataway Township Board of Education v. Taxman, which was to have been argued

and decided by the Supreme Court this Term, but which was likewise

settled at the eleventh hour.

On June 27, 1997, the Supreme Court granted a writ of certiorari

to the United States Court of Appeals for the Third Circuit in

Piscataway. 117 S. Ct. 2506 (1997). The question presented in that

case was whether, under Title VII of the Civil Rights Act of 1964,

race-based affirmative action may permissibly be used in employment

decisions for purposes other than remedying past employment discrimination. On September 30, 1997, three months later, we calen-

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dared oral argument in this case. The question presented in this case,

analogous to that presented in Piscataway, was whether, as the district

court held, under Title VII of the Civil Rights Act of 1964, race-based

affirmative action may permissibly be used in federal government

employment decisions without regard to whether such policies are

designed to remedy past employment discrimination. The district

court in this case held as follows:

In federal employment, through EO 11478, (pursuant to

§ 2000e-16(e)) a government employer's duty to follow the

Executive Order, overrides any inconsistent provision of

§ 2000e-16, whether express or borrowed from§ 2000e-2.

EO 11478 specifically calls upon the head of each federal

agency to "establish and maintain an affirmative program of

equal employment opportunities." Such a program, as is

well and commonly known, takes into account motivating

factors traditionally associated with remedying discrimination in employment, such as race, sex, national origin, and

the like. In that consideration of these matters is required in

federal employment decisions under EO 11478, the"mixedmotive" test of § 2000e-2(m) is flatly inconsistent with the

enforcement of EO 11478, and thus, pursuant to § 2000e16(e), § 2000e-2(m)'s mixed motive test forms no part of

§ 2000e-16(a)'s prohibited employment practices.

Appendix at 7-8.

In late November of 1997, the Piscataway case was settled when

a consortium of interest groups not involved in the litigation paid the

Piscataway plaintiff so that the Supreme Court would not decide the

issue presented by that appeal. On December 2, 1997, the writ of certiorari in Piscataway was dismissed by the Supreme Court because of

that settlement. Two days following the Supreme Court's dismissal of

Piscataway, we heard oral argument in the instant appeal.

Notwithstanding the square holding of the district court in this case

that an exception to Title VII's nondiscrimination mandate exists for

race- and sex-based affirmative action within the federal government

by virtue of Executive Order 11478, the United States Attorney did

not brief or argue this issue. Indeed, in her brief, the United States

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Attorney never even recited the district court's holding, saying only

that:

The district court rendered its decision on grounds not raised

by the agency in its motion for summary judgment. The

agency will be requesting this Court affirm the granting of

the motion on the alternative grounds asserted on the record

by the agency below.

Appellee's Br. at 8. However, at the same time that the United States

Attorney never mentioned the district court's holding, she noticeably

did not confess that the district court's holding was in error (in fact,

as noted below, when forced, she asserted, albeit conclusorily, that the

relevant agency's affirmative action program is consistent with both

Executive Order 11478 and the Constitution). Rather, she argued only

that there was insufficient evidence upon which to conclude that considerations of race or sex played a role in the particular disputed

employment decision.

The district court had categorically rejected the argument that there

was insufficient evidence to support a conclusion that the employment decision was based upon race and/or sex. And this court

believed that the government's argument that there was no evidence

that these factors underlay the decision was frivolous, if not disingenuous. Plaintiff Sonntag proffered a mountain of direct evidence establishing to a virtual certainty that the contested employment decision

was motivated by race- and sex-based affirmative action: the manager

who made the disputed employment decision was widely known to

have an aggressive affirmative action agenda that was particularly

geared to promoting women and Hispanics; plaintiff-appellant was

passed over for an Hispanic woman; there were dozens of statements

from upper-level management officials testifying that the employment

decision was motivated by race- and sex-based affirmative action; and

there was a written memorandum from the manager most involved

with the contested employment decision stating that the decision was

motivated by the desire to enhance the racial and sexual diversity of

the workforce by promoting an Hispanic woman. Plaintiff's Opp. at

13-14. See also Plaintiff's Opp. at 11 (member of the career development board stating "[w]as it an attempt at Affirmative Action? Yes!")

(emphasis added); Appendix at 50-51 (head of division who ratified

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the employment selection saying that "the Affirmative Action candidate should receive extra consideration and may be the best choice

even if one of the others may have more `tickets' on their record," and

saying of this particular case, "[t]he Hispanic female selection was

influenced by Affirmative Action and we are encouraged to be mindful of EEO.").

Accordingly, while we did not know whether we would ultimately

rest our decision on the specific ground upon which the district court

judgment rested, at argument the court was interested in the district

court's holding of law that Executive Order 11478 creates an exception to Title VII's nondiscrimination requirement, and, if so, whether

such was constitutional. In particular, we were interested in the views

of the United States Attorney and appellant as to this ground of decision.

At argument, the court asked both parties their views on the question of whether Executive Order 11478 created the exception to Title

VII which the district court held that it did. The Assistant United

States Attorney simply refused to address the issue, stating that he had

been ordered "in no uncertain terms" by his"masters" not to discuss

this ground of decision with the court. Counsel for appellant similarly

would not address himself to the issue.

When, after extended discussion with both counsel, it became awkwardly apparent to the court (and, we sensed, to counsel themselves)

that neither attorney would address the district court's principal holding absent a direct order to do so, the court entered an order from the

bench that additional briefing and, if necessary, supplementation of

the record, be submitted on the issues the court believed might be relevant to a review of the district court's holding. Specifically, the court

ordered initial briefing from the United States Attorney on whether,

at the time of the employment decision at issue, the agency had in

effect an official affirmative action program promulgated pursuant to

Executive Order No. 11478, and if so, whether that policy was consistent with the Executive Order, Title VII, and the Constitution itself.

This order, as had been our original request, was met by what can

only be characterized as a suspiciously unyielding opposition from

the United States Attorney. In fact, a not inconsiderable amount of

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argument time was consumed by counsel's effort to prevent the court

even from directing that this issue be briefed.

Although the court initially ordered this supplemental briefing

within ten days, the United States Attorney expressed doubt that the

office could comply with that schedule. The court, consequently,

afforded the United States Attorney two weeks within which to submit the requested briefing, and, that same day, the Clerk of the Court

issued the order requiring that the "supplemental brief . . . be served

and filed on or before December 18, 1997."

The United States Attorney did not file supplemental briefing on

December 18, as ordered. Rather, on that date, she filed a motion for

a further extension of time within which to file the supplemental brief,

on the asserted grounds that counsel were too busy to comply with

this court's order and were "still in the process of locating and verifying what, if any, affirmative action plan was in effect at the time of

the employment decision in this case." Reaffirming the court's suspicions that the United States Attorney in particular was intent upon

preventing the court from addressing the question presented by the

district court's ruling, the United States Attorney once again urged

that we reconsider our earlier order of supplemental briefing, contending that briefing on the district court's specific holding was "not necessary to the appeal at hand."

Although displeased with the United States Attorney's continued

intransigence, the court nonetheless granted the motion for a further

extension -- an extension of approximately a month from the date on

which the briefing was originally due -- such appearing to be the

only course by which the court could obtain the government's views

on the relevant issue. In its order, however, the court made clear to

the United States Attorney that her brief was to be"served and filed

in this court on or before January 15, 1998." Intending to convey what

was our mounting displeasure with the United States Attorney, we

pointedly warned in our Order of December 31, 1997, that her "failure

to comply with this extended deadline may subject counsel and/or the

government to penalty under Federal Rule of Appellate Procedure and

Local Rule."

Late in the day of January 15, 1998, the United States Attorney's

supplemental brief had yet to be received by the court.

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At the court's instruction, the Clerk contacted the United States

Attorney to ascertain why the supplemental brief had not been filed.

During this telephone call, the United States Attorney informed the

Clerk that the brief had been mailed from Baltimore earlier that day,

but obviously would not arrive at the Fourth Circuit Court of Appeals

in Richmond for several days. The Clerk informed the United States

Attorney that the mailing that day would be regarded as noncompliance with the December 31 order, and, again at our direction,

expressed the court's displeasure with the additional delay. The Clerk

suggested that the United States Attorney move for another extension

of time within which to file the brief.

On January 16, 1998, one day after the twice-modified supplemental briefing deadline had elapsed and the United States Attorney had

learned of the court's displeasure with the additional delay in filing

the supplemental brief, the United States Attorney filed two motions

with the court. Both motions, it appears, were hand delivered from

Baltimore, Maryland, to the Court of Appeals in Richmond, Virginia,

as they were both signed by counsel and filed with the Clerk of the

Court that same day. The first motion was for another extension of

time within which to file the supplemental brief. The second motion,

however, was a joint motion to dismiss the appeal pursuant to Federal

Rule of Appellate Procedure 42(b) on the ground that the parties had

agreed to settle the case. Contrary to the requirements of Rule 42(b),

the joint motion did not set forth "the terms as to payment of costs,"

but merely represented that the "settlement agreement makes arrangements for the parties' costs." Further, while Rule 42(b) and Local

Rule 42 require that a motion to dismiss be signed at least by counsel

for both parties (Local Rule 42), if not by the parties themselves

(FRAP 42(b)), see also Order of January 26, 1996 in Blistein v. St.

John's College, No. 94-2223 (4th Cir.) (declining to accept joint stipulation of dismissal where defendant's counsel signed plaintiff's

name with permission to do so), the joint motion is signed by the

United States Attorney on behalf of both the government and the

plaintiff, albeit in the latter behalf with the plaintiff's counsel's permission. That is, although a signature bearing the name of counsel for

plaintiff-appellant appears on the motion, that signature was affixed

"with permission" by the United States Attorney. The joint stipulation

had every indicia of having been hastily prepared.

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Several days later, the court finally received through the mail the

ordered supplemental briefing from the United States Attorney on the

substantial questions of federal law presented by the district court's

holding. That brief was less than eight double-spaced pages of perfunctory text. The brief included no analysis of the legal issues whatsoever. Nor did it include any application of legal principles to the

case at hand. The brief literally recited only three sentences specific

to the issues raised by the application of law to fact in this particular

case, and these three sentences were entirely conclusory. See Appellee's Br. at 2 ("The government submits that the affirmative action

plan is consistent with Executive Order No. 11478"); id. at 3-4 ("The

government submits that the affirmative action plan is consistent with

equal protection"); id. at 6 ("The government has an interest in the

advancement of minorities, as reflected in the Executive Order and as

reflected in the statistics contained in the affirmative action plan

itself.").

* * *

From the foregoing sequence of events, the court has come away

with the clear impression that the integrity of the judicial process has

been compromised by considerations that apparently forced upon the

United States Attorney a choice between allegiance to politics and

service to the court.

Either of these parties -- the United States or appellant -- was

entitled to settle this dispute following the district court's decision and

before this appeal. Once the decision was appealed, the attorneys for

the parties were entitled to present their cases in any manner they

chose, consistent with their obligation to zealously represent their

respective clients and with their obligation to the court not to advance

arguments they knew to be frivolous. Although certainly unorthodox,

we suppose it was even within their discretion not to address the very

ground upon which the district court's judgment rested.

However, once the court expressed its interest in the views of the

United States as to the issue not addressed by the government -- the

specific ground for the district court's decision-- the United States

Attorney had an affirmative obligation to assist the court to the best

of her ability, by promptly providing the court with the information

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that the court had concluded would assist it in the consideration of

this issue. It is plain to the court that the United States Attorney failed

to accept and fulfill this obligation.

The United States Attorney had, as noted, not even so much as

mentioned, much less addressed, the district court's holding in her

brief, urging affirmance of the judgment below on such a baseless

ground as to call into question her good faith in advancing the argument, rather than have the district court's holding reviewed by this

court. When asked by this court to address herself to the district

court's holding, the United States Attorney categorically refused, the

Assistant United States Attorney revealing to the court that he had

been ordered by his "masters" not to address the question. When

finally ordered by the court to brief the issue, the United States Attorney delayed and delayed. When ultimately forced to brief the issue

upon threat of sanctions, the submitted brief not only did not address

the substantive issues, but, in its perfunctoriness, evidenced almost a

contemptuousness toward the court.

And, in the end, when it must have appeared to the United States

Attorney that her efforts at preventing review of the district court's

holding were failing, she was even willing to settle the dispute

entirely rather than permit this court to review the district court's

decision -- a settlement that, from the apparent haste with which it

was reached and consummated, itself raises questions as to whether

the public's interests, as opposed to the parochial political interests

evidently at stake, could possibly have been served.

The uncomfortable sense that the rule of law was sacrificed to politics is all but inescapable.

The United States Attorney having mooted this appeal through settlement with the plaintiff, the joint motion for dismissal pursuant to

Federal Rule of Appellate Procedure 42(b) is granted. Because the

court concludes that the public interest requires that none should benefit from an opinion which, were it not for the apparent gaming of the

judicial process that occurred, would have been superseded by an

opinion from this court in the ordinary course, the case is hereby

remanded with instructions to the district court to vacate as moot both

its judgment and opinion. See 28 U.S.C.§ 2106; U.S. Bancorp Mort-

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gage Co. v. Bonner Mall Partnership, 513 U.S. 18, 26 (1994) (noting

that vacatur is appropriate where public interest demands); cf. id. at

29 (noting that "extraordinary circumstances" may, even at parties'

request, justify vacatur of district court opinion upon dismissal

because of settlement).

It is so ordered.

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