540 F.2d 699 (4th Cir. 1976), 75-1002, Doctor v. Seaboard Coast Line R. Co.

Docket Nº:75-1002, 75-1129.
Citation:540 F.2d 699
Party Name:Richard DOCTOR, III, et al., Appellants, v. SEABOARD COAST LINE RAILROAD COMPANY, a corporation, et al., Appellees. Richard DOCTOR, III, et al., Appellees, v. LODGE 16, BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES, AFL-CIO, an unincorporated association, et al., Appellants, and Seaboard Coast
Case Date:June 30, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 699

540 F.2d 699 (4th Cir. 1976)

Richard DOCTOR, III, et al., Appellants,

v.

SEABOARD COAST LINE RAILROAD COMPANY, a corporation, et al.,

Appellees.

Richard DOCTOR, III, et al., Appellees,

v.

LODGE 16, BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP

CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION

EMPLOYEES, AFL-CIO, an unincorporated

association, et al., Appellants,

and

Seaboard Coast Line Railroad Company, etc., et al., Defendants.

Nos. 75-1002, 75-1129.

United States Court of Appeals, Fourth Circuit

June 30, 1976

Argued Nov. 13, 1975.

Page 700

[Copyrighted Material Omitted]

Page 701

Melvin L. Watt, Charlotte, N. C. (J. Levonne Chambers, Charlotte, N. C., Morris J. Baller, New York City, Chambers, Stein, Ferguson & Becton, Charlotte, N. C., on brief), for appellants in 75-1002 and appellees in 75-1129.

James L. Highsaw, Highsaw & Mahoney, Washington, D. C., John R. Ingle, Charlotte, N. C. (Craighill, Rendleman & Clarkson, Charlotte, N. C., on brief), for appellants in 75-1129 and appellees in 75-1002.

Frank P. Ward, Jr., Miami, Fla., Harold A. Ross, Cleveland, Ohio, R. Jeffrey Bixler, Toledo, Ohio (W. T. Covington, Jr., Charlotte, N. C., Richard R. Lyman, Toledo, Ohio, Kennedy, Covington, Lobdell & Hickman, Charlotte, N. C., Mulholland, Hickey & Lyman, Toledo, Ohio, Thomas F. Ellis, Robert A. Valois, Maupin, Taylor & Ellis, Raleigh, N. C., Ross & Kraushaar, Cleveland, Ohio, John T. Allred, George V. Hanna, III, Moore & Van Allen, Charlotte, N. C., on brief), for appellee in 75-1002.

Robert B. Fitzpatrick, Robert T. Lasky, Stephen N. Shulman, Cadwalader, Wickersham & Taft, Robert B. Wallace, Washington, D. C., as amicus curiae.

Before CLARK, [*] Supreme Court Justice, Retired, and RUSSELL and WIDENER, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

In this action on a claim of racial discrimination, the plaintiffs, suing both individually and as representatives of separate classes, have appealed from a denial by the District Court of class certification in the case of three of such plaintiffs, the narrowing of class certification in behalf of a fourth plaintiff, and the dismissal of those defendant labor unions, with which none of the plaintiffs had ever been affiliated. The defendant labor unions, on the other hand, have appealed from the order of the District Court finding the failure by the plaintiffs to file their notice of appeal within time excusable in "the interest of justice." We affirm.

The action was begun in July, 1971. The plaintiffs were Richard Doctor, III, his son Richard H. Doctor, Frank W. Davis, Sr. and H. D. Goodwin. All the plaintiffs were craft employees at the Hamlet Terminal of

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the Seaboard Coast Line Railroad Company, 1 employed, save in the case of Richard Doctor, III and H. D. Goodwin, in separate crafts with separate collective bargaining agents. The defendants are the Railroad and the several international and local craft unions, representing as collective bargaining agents the craft employees of the Railroad. 2 The complaint generally charged racial discrimination on the part of both the Railroad and the craft unions, local and international. It alleged the filing of individual charges, setting up individual claims of discrimination, with the EEOC and the issuance of "suit letters" in all cases by the EEOC. 3

After a pre-trial hearing where some inquiry into the claims of the plaintiffs was had, the United States Magistrate entered an order on January 10, 1972, finding that the action was not proper for class certification "for the reasons that:

(a) The class is not so numerous that joinder of all members is impracticable.

(b) There presently appears to be no questions of law or fact common to a class.

(c) The claims or defenses of the plaintiff are not likely to be typical of the claims or defenses of other prospective plaintiffs and the plaintiffs are not likely to fairly and adequately protect the interests of any class in that the exact bounds of the class have not been defined."

This order was, however, declared to be "conditional," subject to alteration or amendment "before the decision on its (the case's) merits." 4

There was no objection entered to that order of the Magistrate by either the plaintiffs or the defendants. Discovery thereafter proceeded without objection by any party.

After discovery, much of which dealt with the type of case asserted by each plaintiff and his "nexus" with the class he claimed to represent, 5 the defendants moved for summary judgment. In support of such motion, they relied on the discovery testimony and on affidavits submitted by them. At the hearing on this motion for summary judgment, the District Court sua sponte raised anew the propriety of certifying the action as one for class determination. 6 It requested the plaintiffs to submit additional information, as well as a statement of their contentions, on the propriety of class certification and, assuming that certification was proper, on the identifiable classes of whom the individual defendants would be appropriate representatives. The plaintiffs took no exception to such a procedure and proceeded to comply with the District Court's proposed procedure.

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In identifying the classes claimed to be represented by the individual plaintiffs, they represented to the Court that the plaintiff Richard H. Doctor represented all employees in Conductors Consolidated Seniority District # 1, who had been discharged for reasons based on race, the plaintiff Davis on behalf of all craft employees who had been denied promotion within "the existing craft lines at the Hamlet Terminal for reasons based solely on race," and the plaintiffs Doctor, III and Goodwin on behalf of all "craft employees in the Hamlet Terminal * * * (who) have been confined to the lowest positions in the Seaboard." 7

After reviewing the discovery testimony and the interrogatories, the District Court entered its order on August 7, 1974, denying class certification, so far as the plaintiffs, Richard H. Doctor, Richard Doctor, III and Frank W. Davis, Sr., were concerned, but authorizing their individual claims to continue, and allowing the plaintiff H. D. Goodwin's action to proceed conditionally "as a class action * * * against the defendants, Seaboard Coast Line Railroad Company, Local 717, International Brotherhood of Firemen and Oilers, AFL-CIO, an unincorporated association; and International Brotherhood of Firemen and Oilers, an unincorporated association," defining the class so certified as " '(A)ll blacks employed at the Hamlet terminal who belong to the firemen and oilers craft and are in the positions of Service Workers, Unskilled or Semi-Skilled workers, and have been "locked-in" or have not been promoted because of present or past racial discrimination. In addition, the class includes all blacks employed at the Hamlet terminal who have no craft affiliation and who have sought but have been prevented from entering the firemen and oilers craft because of initial discriminatory hiring in the non-craft position.' " At the same time, the Court denied the motion of the defendant Railroad and those unions, with which any of the plaintiffs were affiliated for summary judgment, but granted it in favor of "all defendant unions of which the plaintiffs are not or were not members."

The plaintiffs filed a motion to "alter or amend the Memorandum Order entered * * * on August 7, 1974" seeking to have the Court certify the Memorandum Order for appeal purposes as provided in 28 U.S.C., Section 1292(b). They also, challenged by their motion the dismissal of certain of the craft unions. The District Court denied the motion to amend its prior Order and to certify its Order for appeal purposes as provided in 28 U.S.C., Section 1292(b), in an order entered on October 8, 1974. The plaintiffs mailed their notice of appeal from that order on November 6, 1974, but the notice was not received in the Clerk's office until November 8, 1974. When advised by the Clerk of the District Court that their notice of appeal had been received late and out of time, 8 the plaintiffs moved the District Court "to extend the time for filing the Notice of Appeal herein by one day, to and including the 8th day of November, 1974." The District Court granted the motion, stating:

"While the defendants have shown sufficient justification for denying plaintiffs' motion, the Court is constrained to believe that the interest of justice would

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best be served by allowing the plaintiffs' motion, so that the issues may be resolved on their merits notwithstanding the Court's serious doubt that its orders are appealable, expressed in its Memorandum Order entered October 8, 1974; * * *."

I.

At the threshold of this appeal, we are confronted with the contention by the defendants (1) that the plaintiffs' notice of appeal was untimely and that the District Court was without power to extend the time, absent an express finding of excusable neglect, and (2) that, in any event, the order refusing to certify the claims of the two Doctors and Davis as class actions is interlocutory, appealable only upon a certificate of the trial court under § 1292(b), 28 U.S.C. The District Court, in granting the plaintiffs' motion to extend time to appeal under Rule 4(a), Fed.R.App.P., based its conclusion on the finding "that the interest of justice would best be served by allowing the plaintiffs' motion." The defendants urge that this is not a finding of "excusable neglect" such as is contemplated under the provisions of Rule 4(a) authorizing the District Court to extend the time for appeal. In its finding, it is suggested, the District Court made no reference to "excusable neglect" and stated no justification for plaintiffs' failure to file which...

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