United States v. Rodgers Brief in Opposition to Certiorari

    I n the

(tart of tl|p States
October T erm, 1975 

No. 74-1483

U nited States S teel Corporation,

v.
Petitioner,

Jimmie L. R odgers and J ohn A. T urner.

BRIEF IN OPPOSITION TO CERTIORARI

Jack Greenberg 
James M. Nabrit, III 
M orris J. B aller 
B arry L. Goldstein 
Deborah M. Greenberg 
E ric S chnapper 
B ill L ann  L ee

10 Columbus Circle 
New York, N. Y. 10019

B ernard D. Marcus 
Kaufman & Harris 
415 Oliver Building 
Pittsburgh, Pa. 15222

Attorneys for Respondents



TABLE OF CONTENTS

PAGE

Opinion Below .......................................    1

Jurisdiction ......................................................................... 1

Question Presented ...........................................................  1

Statutes and Rules Involved...................      2

Statement ............................................................................. 3

Argument ............................................................................... 12

1. The local civil rule and orders of the district
court were in conflict with Rule 23 of the Fed­
eral Rules of Civil Procedure ..............................  12

2. The district court’s rulings conflicted with Title
VII of the Civil Rights Act of 1964 ..................  15

3. Local Civil Rule 34(d) violates the First
Amendment ...................................................     15

4. The trial court’s rules and orders interfered
with free access to counsel ................................... 17

5. The restraint on communications was censorial
and discriminatory ...................................     19

6. The court of appeals carefully delimited its 
ruling to avoid hroad issues involving other 
types of regulations which might he imposed
in other cases or by other rules of court .......  20

Conclusion 22



11

T able op A uthorities

Cases: page

Albemarle Paper Co. v. Moody, ------  U.S. ------  (de­
cided June 25, 1975) -----------------------------------------  15

Bantam Books v. Sullivan, 372 U.S. 58 (1963) ........... 17
Bates v. Little Rock, 361 U.S. 516 (1960) ..................  18
Bridges v. California, 314 U.S. 252 (1941) ..................  16
Brotherhood of Railroad Trainmen v. Virginia ex rel. 

State Bar, 377 U.S. 1 (1964) ..................................16,18

Carroll v. Princess Ann County, 393 U.S. 175 (1968).... 17
Chandler v. Fretag, 348 U.S. 3 (1954) ..........................  18
Craig v. Harney, 331 U.S. 252 (1941) ............................  16

Dickerson v. United States Steel Co., 64 F.R.D. 351 
(E.D. Pa. 1974), appeal quashed, 9 E.P.D. 10063
(3rd Cir. 1975) cert, denied------ U .S .------- , 44 L.Ed.
2d 102 (1975) .................................................................  19

Eaton v. City of Tulsa, 415 U.S. 697 (1974) ............... 16

Gibson v. Florida Legislative Investigative Commit­
tee, 372 U.S. 539 (1963) ................................................  18

In re Sawyer, 360 U.S. 622 (1959)................................ . 16

N.A.A.C.P. v. Button, 371 U.S. 415 (1963).......7,13,16,17

Organization for a Better Austin v. Keefe, 402 U.S.
415 (1971) ....................................................................... 17

Pennekamp v. Florida, 328 U.S. 331 (1946) ..............  16
Powell v. Alabama, 287 U.S. 45 (1932) ......................  18
Procunier v. Martinez, 416 U.S. 296 (1974) ............... 18



Ill

page

Shelton v. Tucker, 364 U.S. 479 (1960) ......................  18
Southeast Promotions Ltd. v. Conrad,------U.S. ------- ,

43 L.Ed.2d 448 (1975) .................................................  17

United Mineworkers v. Illinois State Bar Association,
389 U.S. 217 (1967) .....................................................  16

United States v. Allegheny-Ludlum Industries, Inc.,
5th Cir. No. 74-3056 ..................................................... 6

United Transportation Union v. State Bar, 401 U.S.
576 (1971) ....................................................................... 16

Wood v. Georgia, 370 U.S. 375 (1962) ........................... 16

Statutes and Buies:

42 U.S.C. § 1981 .................................................................  3

42 U.S.C. § 2000e-5(k) .....................................................  4

Civil Bights Act of 1964, Title V I I .................... 3,12,14,15

Federal Buies of Civil Procedure, Buie 23 ...........2,10,12,
13,14

Local Buie 19B, S.D. Florida ........................................ 20

Local Civil Buie 22, N.D. Illinois..................................  20

Local Buie 20, D. Maryland .......................................... 20

Local Buie 34, W.D. Pa.................................................... 2,11

Local Buie 34(d), W.D. Pennsylvania ....   4,10,11,12,
15, 20, 21

Local Buie 6, S.D. Texas .............................. .................  20

Local Buie C.B. 23(g), W.D. Washington ................... 20

Other Authority:

Manual for Complex Litigation, 1 Moore, Federal 
Practice, 1(1.41 (3d Ed. 1974, part 2) .............. 11,20,21



In the

(Urntrt of %  B u U b
October T erm, 1975 

No. 74-1483

U nited S tates Steel Corporation,

v.
Petitioner,

J immie L. R odgers and John A. T urner,

BRIEF IN OPPOSITION TO CERTIORARI

Opinion Below

The opinion of the Court of Appeals for the Third Cir­
cuit dated January 24, 1975, is reported at 508 F.2d 152.

Jurisdiction

The jurisdictional requisites are adequately set forth in 
the petition.

Question Presented

Whether the court of appeals was correct in issuing a 
writ of mandamus and/or prohibition in an employment 
discrimination case to strike down a local rule and district 
court orders which for three years prevented civil rights 
lawyers from talking with black steelworkers who were 
potential class members and prohibited the lawyers from 
meeting with an NAACP branch which included potential



2

class members, where the district court had not even de­
termined if the case could proceed as a class action, either

1. On the ground that such restraints on free speech 
were not authorized by statute and imposed unreasonable 
conditions upon the availability of class actions which were 
inconsistent with Rule 23, Federal Rules of Civil Procedure 
and with Title V II of the Civil Rights Act of 1964; or

2. Upon the ground that the local rule and orders of 
court violated the First Amendment rights of plaintiffs 
and their potential class members and lawyers to freedom 
of speech, freedom of association, and privacy of associa­
tion, and also violated their rights to freedom from dis­
criminatory or censorial regulations of their speech and 
associations, as well as violating the right to counsel.

Statutes and Rules Involved

The case involves Local Rule 34 of the United States 
District Court for the Western District of Pennsylvania, 
which provides in part:

Rule 34. Class Actions.

In any case sought to be maintained as a class action.
# *  #

(c) Within 90 days after the filing of a complaint 
in a class action, unless this period is extended on 
motion for good cause appearing, the plaintiff shall 
move for a determination under subdivision (c)(1 ) 
of Rule 23, Federal Rules of Civil Procedure, as to 
whether the case is to be maintained as a class action. 
In ruling upon such a motion, the Court may allow 
the action to be so maintained, may disallow and strike 
the class action allegations, or may order postpone­



3

ment of the determination pending discovery of such 
other preliminary procedures as appear to be appro­
priate and necessary in the circumstances. Whenever 
possible, where it is held that the determination should 
he postponed, a date will be fixed by the Court for 
renewal of the motion before the same judge.

(d) No communication concerning such action shall 
be made in any way by any of the parties thereto, or 
by their counsel, with any potential or actual class 
member, who is not a formal party to the action, until 
such time as an order may be entered by the Court 
approving the communication.

Statement

Respondents Rodgers and Turner are black steelworkers 
employed at United States Steel Corporation’s Homestead 
Works. They brought this employment discrimination case 
in the United States District Court for the Western District 
of Pennsylvania in August 1971, against the steel company 
and the local and national unions representing workers at 
the plant. The complaint alleges a pervasive pattern of 
racial discrimination by the defendants in violation of 
Title V II of the Civil Rights Act of 1964 and of 42 U.S.C. 
§ 1981, and requests injunctive relief and back pay for 
the named plaintiffs and a class of more than 1,200 black 
workers employed at Homestead Works. As the opinion 
below explains, notwithstanding the fact that early in the 
case the parties stipulated the definition of the class in­
volved, the district court has not yet ruled on plaintiffs’ 
repeated motions that the case be certified as a class ac­
tion. 508 F.2d at 155.

This petition involves a collateral issue not dealing with 
the merits of plaintiffs’ job discrimination claim which has



4

not yet been tried or decided. This phase of the case deals 
with the fact that the district court by rule and orders 
prevented plaintiffs’ lawyers from talking with any of the 
black workers at Homestead Works for three and a half 
years until the court of appeals issued its writ of man­
damus and/or prohibition.

Plaintiffs’ local attorney is Bernard D. Marcus of the 
Pittsbui'gh firm of Kaufman & Harris. He has associated 
with him in the case several lawyers employed by the 
N.A.A.C.P. Legal Defense and Educational Fund, Inc., a 
non-profit corporation which has furnished legal aid in 
civil rights cases in state and federal courts for thirty- 
five years. The Fund is a New York corporation, approved 
to function as a legal aid organization. Neither Mr. Marcus 
nor the Legal Defense Fund lawyers have accepted or ex­
pect any compensation from the plaintiffs, or from any 
member of the potential class. Mr. Marcus and his firm 
will be compensated only in the event attorneys fees may 
eventually be taxed against the defendants by the court 
as authorized by Title VII, 42 U.S.C. § 2000e-5(k). Any 
fee which might be awarded by the court on account of 
work done by Legal Defense Fund employees will be paid 
to that non-profit corporation and not to the individual 
salaried staff attorneys.

For over three years from the filing of the suit until 
the decision of the court of appeals, plaintiffs’ attorneys 
were forbidden from communicating with class members 
by Local Rule 34(d) and several orders issued to enforce 
that rule.

Plaintiffs’ attorneys first sought permission to talk with 
class members by motion filed September 21, 1973. The 
motion alleged that plaintiffs’ ability “ effectively to present 
the claims of class members, to discover the case, and to 
define the scope of the issues with greater specificity de­



5

pends in significant part on tfieir having access to class 
members, to investigate their complaints, and to supple­
ment the available defendants’ documentary materials by 
interviewing their employees.” Plaintiffs asked for a gen­
eral order “allowing proper communications” and stated 
that “It would be impractical and unworkable for plaintiffs 
to reapply specifically for permission to communicate with 
particular class members.”

At a hearing on September 29, 1973, the court denied 
the motion:

T he Court: The ruling of the Court is that they 
can’t contact people who are not named as parties until 
an order of Court. No person is to be contacted with­
out my permission. As to the specific individual con­
cerned after giving notice to the defendants who the 
individual is and what you expect to learn from him, 
then we can determine whether this is sufficient reason 
to change the general rule.

The transcript of this conference will take the place 
of and will be considered the order of this Court, no 
written order being necessary by agreement of all 
parties. (App. 85a-86a)

Plaintiffs made a further effort to get permission to talk 
with potential class members in June 1974. In the back­
ground of this second effort was a related development 
which had occurred in the Northern District of Alabama, 
where on April 12, 1974, the court had approved two con­
sent decrees in a suit by the United States against nine 
major steel companies, including United States Steel, and 
the United Steelworkers of America, APL-CIO. The con­
sent decrees, approved on the same day the Alabama suit 
was filed, purported to be a nationwide settlement of all 
race and sex discrimination claims in the steel industry,



6

including claims at Homestead Works.1 The consent decrees 
changed seniority practices at steel plants such as Home­
stead Works, and provided a back pay remedy for certain 
black employees. The consent decrees provide for commu­
nication to black class members by the defendants and the 
solicitation of waivers of Title VII claims in order for 
them to receive back pay.

Plaintiffs in the Rodgers case, who had been prevented 
from communicating with class members since suit was 
filed in 1971, again moved in April 1974 for a class certifi­
cation and proposed that the court sign a notice to class 
members explaining the status of the case. Plaintiffs moved 
for an order prohibiting the defendants from soliciting 
releases from class members, but withdrew this motion 
when defendants agreed at the hearing to show plaintiffs’ 
counsel written communications in advance and afford 
plaintiffs time to apply for a protective order if counsel 
objected to any communication.

On June 26, 1974, plaintiffs moved for permission for 
their counsel to talk with six named class members and to 
attend a meeting of the Homestead Branch of the NAACP. 
The moving papers explained that two of the six workers 
had sought information and assistance about employment 
discrimination from the Assistant Labor Secretary of the 
NAACP in New York, and had been referred by her to the 
Legal Defense Fund attorneys. The Homestead Branch 
of the NAACP had independently invited the plaintiffs’ 
attorneys to come to a branch meeting to discuss discrim­

1 The legality of the consent decrees was promptly challenged 
by black workers from various states (including Rodgers and 
Turner) who intervened in the Alabama case. The case is now 
pending in the Fifth Circuit on the appeal of those intervenors 
from an order rejecting all challenges to the consent decrees. 
United States v. Allegheny-Ludlum Industries, 5th Cir No 74- 
3056.



7

ination at Homestead Works. The motion pointed out the 
nature and purposes of the NAACP and explained the cir­
cumstances of the invitation which included a request for 
information about the Alabama consent decrees and the 
pending local litigation. The motion alleged specifically 
that a denial of the right to communicate would violate 
constitutionally protected rights of free speech and asso­
ciation as well as the right of counsel to practice law. The 
motion relied on N.A.A.C.P. v. Button, 371 U.S. 415 (1963), 
and a series of succeeding cases.

On the same date, June 26, plaintiffs filed a related 
motion entitled “Renewed Motion for Permission to Com­
municate with Members of the Proposed Class” (App. 
166a-170a). The latter motion pointed out that the court 
had set January 15, 1975, as the deadline for completion 
of discovery; that under the prior orders of court coun­
sel were unable to communicate with class members for 
discovery purposes, that plaintiffs had undertaken a great 
deal of time-consuming and costly computer analysis and 
discovery of defendants’ records and now needed to talk 
with members of the class in order to effectively present 
their claims, to define the issues and complete discovery, 
and that it was impractical and unworkable for plaintiffs 
to apply specifically for the right to communicate with 
particular class members. The motion alleged also that 
it was inequitable to prohibit communication by plaintiffs 
while the defendants could communicate with the class 
pursuant to the consent decrees to offer them back pay 
and seek to persuade employees to execute releases waiv­
ing their rights.

At a hearing on the motion on June 27, 1974, the court 
orally forbade plaintiffs’ attorney from attending an 
NAACP meeting scheduled for July 7, and reserved deci­
sion pending briefs on the constitutional issues. The court



8

also stayed all discovery and a class determination nntil 
January 15, 1975. Plaintiffs then moved for entry of a 
written order embodying these rulings and for a certifica­
tion to permit an interlocutory appeal. On July 19, 1974, 
the court orally denied the certification and the motion 
to communicate with the NAACP. The court granted the 
motion to talk with the six workers, hut when U. S. Steel’s 
attorney pointed out that only two of the six had con­
tacted the New York office of the NAACP, the court 
ruled that counsel could speak with them or any other 
class members only if they first filed in court the class 
members’ affidavit stating how they happened to consult 
counsel. The court’s oral ruling is quoted in the opinion 
below, 508 F.2d at 157-158.

Judge Teitelbaum made it clear that the prior restraint 
was not merely to prevent solicitation and “barratry.” 
When Mr. Marcus asked the court if he and his colleagues 
could attend the NAACP meeting if they would agree not 
to represent any of the workers there, except in the pend­
ing class action, the court “made clear that its purpose in 
continuing the ban on communication was to prevent dis­
cussion of the Alabama consent decree” (508 F.2d at 158). 
The purpose of the restriction on communication was to 
prevent what Judge Teitelbaum called “ sabotage” of the 
Alabama consent decree (508 F.2d at 152). Although plain­
tiffs requested written orders, none were filed.

Plaintiffs filed an appeal and a petition for a writ of 
prohibition or mandamus with respect to those orders, and 
also sought a stay pending the decision of the court of 
appeals on the merits. When the stay was denied without 
prejudice for lack of a district court order giving reasons 
for its action, plaintiffs again applied to the district court 
for a written order—which was finally forthcoming on



9

September 12, 1974, embodying the June 27 and July 19, 
1974, oral rulings.

On January 24, 1975, the court of appeals issued a writ 
of mandamus or prohibition with respect to the orders 
restricting communications. In its opinion the court of 
appeals observed that the district court had superimposed 
a condition on the availability of the class action device 
that raises serious First Amendment issues:

. . . The two provisions make clear that the District 
Court for the Western District of Pennsylvania has 
superimposed upon Rule 23 a condition that the class 
action device be available only to those plaintiffs will­
ing to submit to an assertion of a dual power by the 
court—the power to postpone class action determina­
tion and to impose a prior restraint in the meantime. 
That the prior restraint may be of extended duration 
is clear; in this case it has continued for more than 
three years.

The imposition of such a condition upon access to 
the Rule 23 procedural device certainly raises serious 
first amendment issues. . . . There is no question but 
that important speech and associational rights are in­
volved in this effort by the NAACP Legal Defense and 
Education Fund, Inc. to communicate with potential 
black class members on whose behalf they seek to 
litigate issues of racial discrimination. See, e.g., 
United Transportation Union v. State Bar, 401 U.S. 
576 (1971); NAACP  v. Button, 371 U.S. 415 (1963). 
And the interest of the judiciary in the proper ad­
ministration of justice does not authorize any blanket 
exception to the first amendment. See Wood v. 
Georgia, 370 U.S. 375 (1962); Craig v. Harney, 331 
U.S. 367 (1947); Pennekamp v. Florida, 328 U.S. 331 
(1946); Bridges v. California, 314 U.S. 252 (1941).



10

Whatever may be the limits of a court’s powers in 
this respect, it seems clear that they diminish in 
strength as the expressions and associations sought to 
be controlled move from the courtroom to the outside 
world. See T. Emerson, The System of Freedom of 
Expression, 449, et seq. (1970). (508 F.2d at 162-163).

However, the court of appeals found it unnecessary to 
rest its decision on First Amendment grounds, because 
it concluded that the district court had no statutory au­
thority to promulgate Local Rule 34(d) which it found 
to he inconsistent with the policy underlying Rule 23 of 
the Federal Rules of Civil Procedure. The Third Circuit 
noted that the district court was seeking to prevent “bar­
ratry” ; that the policy of Rule 23 was “ in favor of having 
litigation in which common interests or common questions 
of law or fact prevail, disposed of where feasible in a 
single lawsuit” ; that there was no federal common law 
offense of barratry; and that even if the federal rules 
and statutes were construed to authorize the adoption of 
local rules for controlling barratry, a serious “constitu­
tional issue of overbreadth would he presented by the 
Local Rule in its present form.” (508 F.2d 163-164). The 
court went on to state:

The rule imposes a prior restraint on all communica­
tion, not merely communication aimed at stirring up 
litigation. Think what our reaction would be to a 
state statute which required that attorneys submit all 
communicatons to be made to persons not yet their 
clients to the prior approval of a court. (508 F.2d at 
164)

The court then concluded that Local Rule 34(d) was 
outside the rule-making power granted to the district 
court. The majority found it unnecessary to decide



11

whether a local rule regulating communications “after 
a class determination has been made,” would be valid but 
pointed out that drafting such a rule would require “ care­
ful consideration of overbreadth.” 508 F.2d at 164.

The court noted that Local Rule 34(d) was adopted in 
response to a suggestion in the Manual for Complex Liti­
gation, see 1 Moore, Federal Practice U 1.41, at 27-32 (2d 
Ed. 1974, part 2). The court below noted that Local Rule 
34(d) contains none of the exceptions recommended in 
the Manual. In any event, the court of appeals made it 
plain that it had no occasion to rule on whether the sug­
gested Local Rule 7 in the Manual contained sufficiently 
specific exceptions to avoid the overbreadth problem. 508 
F.2d at 164-165, note 18.

Judge Weis filed a concurring opinion which agreed that 
Local Rule 34 should be set aside “not, however, because 
of the time period in the litigation, but, rather because it 
is overbroad in its wording.” Thus Judge Weis did reach 
the constitutional question and decide it in plaintiffs’ favor 
saying: “Accordingly, it seems to me that local Rule 34, 
as it applies to civil rights actions, must be set aside as 
being unnecessarily broad.” 508 F.2d at 166.

The court of appeals, and this Court, denied motions by
U. S. Steel for a stay pending certiorari. ------U.S. ------- ,
43L.ed.2d 649. After the district court vacated its prior 
orders, plaintiffs’ attorneys finally met with the Homestead 
Branch of the NAACP and discussed racial discrimination 
problems at Homestead Works with black steelworkers.



12

Argument

This case does not warrant review on certiorari because 
the decision of the court of appeals is in accord with this 
Court’s prior decisions, and there is no conflict among the 
circuits on the questions presented. The decision of the 
Third Circuit, which set aside the trial court’s across-the- 
board prior restraint of all communications between plain­
tiffs’ attorneys and the potential class of black steel­
workers, is entirely supportable on a number of grounds. 
The result is plainly correct because the district court’s 
rule and orders were inconsistent with Rule 23 of the 
Federal Rules of Civil Procedure, with Title VII of the 
Civil Rights Act of 1964, with the First Amendment’s 
guarantee of freedom of speech and association, and with 
the right to counsel. In the factual context of the case the 
district court’s rulings were discriminatory, censorial and 
inequitable in the treatment of plaintiffs vis-a-vis the 
defendants.

1. The local civil rule and orders of the district court were 
in conflict with Rule 23 of the Federal Rules of Civil 
Procedure.

The court below properly concluded that Local Rule 
34(d) and the orders implementing that rule in this case, 
which were ostensibly designed to supplement Rule 23 of 
the Federal Rules of Civil Procedure, were actually in­
consistent with the policy underlying Rule 23. As the 
court below analyzed the case, the district judge had 
asserted a “ dual power . . .  to postpone class action 
determination [for an extended period] and to impose a 
prior restraint in the meantime.” 508 F.2d at 162. Local 
Rule 34(d), as Judge Gibbons observed, “ imposes a prior 
restraint on all communication, not merely communication



13

aimed at stirring up litigation.” 508 F.2d at 164. The 
Third Circuit acknowledged that district courts had some 
powers to regulate communications and referred to “ the 
undoubted power to impose some restrictions on first 
amendment rights during the course of judicial proceed­
ings.” 508 F.2d at 162. But the court found no authoriza­
tion in the statutes or rules for a trial court to condition 
the availability of the Rule 23 class action device upon a 
litigant’s submission to an indefinite period of prior 
restraint on all communications about the case.

The court noted the injustice of imposing a restraint on 
speech in order to prevent abuse of the class action device, 
where the court indefinitely delayed a decision about 
whether the class action procedure could be employed in 
any event. It was in this context that the court made a 
distinction between the role of a court in imposing- 
restraints before and after class certification. If class 
representative status was eventually denied the years of 
imposed restraint on free speech would have been imposed 
for naught. The court of appeals found it improper to 
delay class certification while imposing a broad gag rule 
as a condition to seeking representative status.

The court of appeals also noted that while the prevention 
of “barratry” and “ solicitation” (cf. N.A.A.C.P. v. Button, 
371 U.S. 415 (1963)) was one proffered justification for the 
trial court’s rulings, the ban was in no way limited to 
communications which might fit within those general 
rubrics. Plaintiffs’ attorneys were forbidden to interview 
workers while investigating the case and gathering wit­
nesses and evidence unless they first obtained the court’s 
permission for each interview by making a showing of 
what they expected to learn from each worker. Plaintiffs’ 
attorneys, some of whom were employed by a civil rights



14

organization, were forbidden from attending a meeting of 
the Homestead Branch of the NAACP because some 
potential class members would attend the meeting. The 
prohibition against attending the NAACP meeting forbade 
mere presence at the meeting. Plaintiffs’ counsel would 
have been in violation of this order if they had attended 
the meeting without speaking at all, if they attended and 
spoke only of unrelated subjects, if they spoke about the 
case only in the most restrained and proper manner, if 
they distributed copies of relevant court papers or orders, 
or if they merely gave an abstract explanation of Title VII 
of the Civil Bights Act of 1964. The court of appeals was 
entirely correct in finding no authority to impose such 
restraints on free speech and association conferred by the 
general grant of authority to make rules of practice “not 
inconsistent with” the Federal Buies of Civil Procedure.

In any event, the Third Circuit concluded that the 
orders and rule of the district court were inconsistent with 
the policy of Buie 23 of the Federal Buies of Civil 
Procedure which is “ in favor of having litigation in which 
common interests, or common questions of law or fact 
prevail, disposed of where feasible in a single lawsuit.” 
508 F.2d at 163. The court perceived the district court’s 
ruling as preventing the full implementation of the policy 
of Buie 23. That conclusion is entirely reasonable because 
lawyers subject to the district court’s restraints are quite 
evidently hobbled in carrying out the obligation to fairly 
and adequately represent the class. A lawyer conscien­
tiously engaged in representing a large class of workers 
would want to learn their grievances and concerns by 
personal interviews, and would want to respond to 
inquiries by class members. The duty of fair representation 
probably encompasses some obligation of responsiveness 
to concerns of class members who are not named plaintiffs.



15

It certainly encompasses an obligation to fully investigate 
the facts of racial discrimination suffered by the class in 
order to adequately litigate the merits of the case. It is 
fair to conclude that the restraints imposed by the district 
court on plaintiffs in this case so hamstrung their presen­
tation of the case as to conflict with the policy of Rule 23 
supporting class actions.

2. The district court’s rulings conflicted with Title YII of 
the Civil Rights Act of 1964.

The arguments that the district court exceeded its au­
thority by rulings conflicting with the principles of Rule 23 
have added force in the context of a fair employment suit 
brought under Title YII of the Civil Rights Act of 1964. As
this Court held in Albermarle Paper Co. v. Moody, ------
U .S .------  (decided June 25, 1975), Congress intended that
Title VII plaintiffs have the benefit of the class action 
device, for backpay claims as well as for injunctive relief. 
Title V II suits are encouraged by statutory provisions for 
the award of counsel fees to successful plaintiffs who 
vindicate the public interest in eliminating discrimination. 
Albermarle Paper Co., supra. The rules and orders of the 
district court restraining communications were all the more 
inappropriate in a case such as this where plaintiffs’ at­
torneys were charging the class members no fees, offered 
to agree not to represent any more clients among the class 
members, and were entirely dependent upon the court it­
self to determine any fee they might obtain if they even­
tually won the case on the merits.

3. Local Civil Rule 3 4 (d ) violates the First Amendment.

The trial court imposed unconstitutional prior restraints 
on free speech and association in violation of the First 
Amendment. The decision of the court of appeals, while



16

not resting on constitutional grounds, recognize “ the 
important speech and associational rights . . . involved in 
this effort by the NAACP Legal Defense and Educational 
Fund, Inc. to communicate with potential black class mem­
bers on whose behalf they seek to litigate issues of racial 
discrimination.” 508 F.2d at 163. And the Third Circuit 
cited this Court’s decisions in United Transportation 
Union v. State Bar, 401 U.S. 576 (1971), and N.A.A.C.P. v. 
Button, 371 U.S. 415 (1963), recognizing the free speech 
and association rights involved in such litigation efforts. 
See also, Brotherhood of Railroad Trainmen v. Virginia ex 
rel. State Bar, 377 U.S. 1 (1964), and United Mine 
Workers v. Illinois State Bar Association, 389 U.S. 217 
(1967).

This Court’s decisions also make it clear that plaintiffs’ 
counsel are not stripped of all First Amendment rights 
simply because they are attorneys before the bar of the 
court. Brotherhood of Railroad Trainmen, supra, 377 U.S. 
1, 8. And as the court below put it, “ the interest of the 
judiciary in the proper administration of justice does not 
authorize any blanket exception to the first amendment.” 
508 F.2d at 163. An unbroken line of cases from Bridges v. 
California, 314 U.S. 252, 268 (1941), and including Craig v. 
Harney, 331 U.S. 252 (1941); Pennekamp v. Florida, 328 
U.S. 331 (1946); In re Sawyer, 360 U.S. 622 (1959); and 
Wood v. Georgia, 370 U.S. 375, 384, 393 (1962), dispels any 
notion that lawyers are without free speech rights to talk 
about pending cases. To justify punishment (let alone 
prior restraint), there must be “ an imminent, not merely 
a likely, threat to the administration of justice.” Craig v. 
Harney, 331 U.S. 367, 376; cf. Eaton v. City of Tidsa, 415 
U.S. 697, 698 (1974).

Of course, on the facts of this case, there is no question 
about any allegedly improper or punishable conduct by



17

plaintiffs’ counsel. They have obeyed the district court’s 
prohibition against communication and there is not the 
slightest suggestion in the record that they engaged in any 
solicitation or communication in violation of the court 
rules and orders. Thus, the case does involve the power of 
a court to punish disobedience of its orders or allegedly 
improper speech or conduct. Rather, the case involves the 
validity of a broad prior restraint. This Court has set 
forth, now well established principles disfavoring prior 
restraints in the area of First Amendment freedoms.
Southeast Promotions Ltd. v. Conrad, ------  U.S. ------ , 43
L.Ed.2d 448, 459-460 (1975); Organization for a Better 
Austin v. Keefe, 402 U.S. 415, 419 (1971); Carroll v. 
Princess Ann County, 393 U.S. 175, 181 (1968); Bantam 
Boohs v. Sullivan, 372 U.S. 58, 70 (1963).

The prior restraint system set up by the trial court is 
fatally overbroad in its sweeping restraint on entirely 
lawful communications. It has become axiomatic that 
“precision of regulation must the touchstone in an area so 
closely touching our most precious freedoms,” N.A.A.C.P. 
v. Button, 371 U.S. 415, 438 (1963). By establishing a prior 
restraint sweeping far beyond any legitimate concern of 
the court in regulating the conduct of class actions, the 
district court’s rule and orders limited First Amendment 
freedoms in a fashion far more sweeping than could be 
justified by any governmental interest involved. N.A.A.C.P. 
v. Button, supra.

4. The trial court’s rules and orders interfered with free 
access to counsel.

Freedom of association includes a right to privacy of 
association. The district court’s requirements that every 
contact between plaintiffs’ counsel and members of the 
class be disclosed prevents class members from consulting



18

with, or assisting plaintiffs’ lawyers in private and makes 
their every contact known to their employers. These rules 
invade the traditional attorney-client privacy. Little 
imagination is required to perceive that many a potential 
client or informant would be loath to approach counsel by 
running the gauntlet imposed by the trial court’s orders. 
“ Freedom [of speech, press and association] are protected 
not only against heavy handed frontal attack, but also from 
being stifled by more subtle governmental interference,” 
Bates v. Little Rock, 361 U.S. 516, 523 (1960); Shelton v. 
Tucker, 364 U.S. 479 (1960); Gibson v. Florida Legislative 
Investigative Committee, 372 U.S. 539 (1963).

When black steelworkers seek to consult plaintiffs’ at­
torneys they seek to exercise “ the right of individuals and 
the public to be fairly represented in lawsuits authorized 
by Congress to effectuate a basic public interest.” Brother­
hood of Railroad Trainmen v. Virginia, 377 U.S. 1, 7 
(1964). As the Court said in that case, “laymen cannot 
be expected to know how to protect their rights when deal­
ing with practiced and carefully counselled adversaries, 
. . . ”  {ibid.). Indeed, the right to be heard by counsel of 
one’s own choice has been called “unqualified.” Chandler v. 
Fretag, 348 U.S. 3, 9 (1954). See also, Powell v. Alabama, 
287 U.S. 45, 69 (1932), where the Court said that an 
arbitrary refusal to hear a party by counsel would be a 
denial of due process “ in any case, civil or criminal.” And 
see, Procunierv. Martinez, 416 U.S. 296 (1974), condemning 
unjustified restrictions on prisoners’ access to legal assis­
tants and law students employed by counsel.



5. The restraint on communications was censorial and dis­
criminatory.

The district court’s restraint on communications was 
one-sided and unfair in its impact upon the efforts of black 
workers to oppose the defendant company and union. 
Defense counsel were entirely free to consult with their 
clients in respect to any matters relevant to the conduct of 
the lawsuit. The company and union have virtually limit­
less opportunity to communicate with black steelworkers 
in the regular course of business, and in the conduct of 
union affairs. Beyond that, the defendants had judicial 
sanction to explain the meaning of the consent decrees, and 
at a later date to offer back pay and solicit the workers 
release of their Title YII claims. “Implementation Com­
mittees” composed of company and union representatives 
met with workers to explain the Alabama consent decree.

In this context, the district court entered orders with 
the avowed purpose to prevent plaintiffs’ attorneys from 
discussing the consent decrees with class members— even 
those who invited them to come to a civil rights organiza­
tion meeting for this purpose. 508 F.2d at 158. This 
censorship of plaintiffs’ speech unfairly disadvantaged 
those workers who sought to oppose the consent decrees, 
and gave an undue advantage to the def endants who sought 
to defend that decree and interpose it as a defense to the 
Rodgers suit. (For a similar case where U. S. Steel has 
sought to use the consent decrees to defeat a previously 
filed Title YII suit, see Dickerson v. United States Steel 
Co., 64 F.R.D. 351, 360 (E.D. Pa. 1974), appeal quashed
9 E.P.D. 10063 (3d Cir. 1975), cert, denied, -------U .S ._____,
44 L.Ed.2d 102 (1975).) The district court’s rulings con­
stituted an invidious discrimination which allowed the 
defendants to voice their views with the workers by meet­



20

ings and by written communications while the plaintiffs 
were totally restrained from speaking.

6. The court of appeals carefully delimited its ruling to 
avoid broad issues involving other types of regulations 
which might be imposed in other cases or by other rules 
of court.

There is no conflict of circuits on the questions pre­
sented here because no other court of appeals has decided 
similar issues. Indeed, insofar as our research has dis­
covered, no court has adopted a local rule as broad and 
sweeping as Local Rule 34(d). Our research has located 
only five other federal districts which have any rule 
regulating communication in class actions.2 It is quite 
clear that Local Rule 34(d) is uniquely restrictive even 
among the small number of related federal court rules. 
Four of the rules partially codified Suggested Local Rule 
No. 7 in the Manual for Complex Litigation, 1 Moore 
Fedral Practice (par. 72, 1973). These rules specifically 
enumerate kinds of communication the rule is supposed to 
cover and contain exceptions not present in Rule 34(d).

Petitioners have attempted to defend Local Rule 34(d) 
by citation of the Manual. Actually the Manual quite 
explicitly disavows any such permanent or absolute pro­
hibition of contact with class members, Manual § 1.41:

The recommended preventive action, whether by 
local rule or order, is not intended to be either a 
permanent or an absolute prohibition of contact with 
actual or potential class members. Promptly after the 
entry of the recommended order, or the applicable 
date of the local rule in a case, and at all times there­

2 Local Rule 19B, S.D. Florida; Local Civil Rule 22, N.D. 
Illinois; Local Rule 6, S.D. Texas; Local Rule C.R. 23(g) W.D. 
Washington; Local Rule 20, D. Maryland.



21

after, the court should, upon request, schedule a hear­
ing at which time application for relaxation of the 
order and proposed communications with class mem­
bers may he presented to the court. Since the recom­
mended rule and order are designed to prevent only 
potential abuse of the class action and are not meant 
to thwart normal and ethically proper processing of a 
case, the court should freely consider proposed com­
munications which will not constitute abuse of the 
class action. In many such cases, the class members 
will have knowledge of facts relevant to the litigation 
and to require a party to develop the case without 
contact with such witnesses may well constitute a 
denial of due process.

There will normally be some need for counsel to 
communicate with class members on such routine 
matters as answering factual inquiries and developing 
factual matters in preparation for the class action 
determination as well as for trial. In order that there 
might be some minimal judicial control of these com­
munications, it is suggested that ex parte leave may be 
given by the court, If requesting counsel is at a 
distance from the court, the request may be handled 
by telephone.

No such cautionary note is present in Local Rule 34(d). 
This fact is underlined by the district court rulings that 
have exactly the unintended effect on the normal processing 
of this case.

The opinion below carefully refrained from ruling on 
the constitutional validity of suggested model provisions 
such as those in the Manual. 508 F.2d at 164-165.



22

CONCLUSION

For tlie foregoing reasons, it is respectfully submitted 
that the petition for certiorari should be denied.

Respectfully submitted,

Jack Greenberg 
James M. Nabrit, III 
M orris J. Baller 
B arry L. Goldstein 
Deborah M. Greenberg 
E ric S chnapper 
B ill L ann  L ee

10 Columbus Circle 
New York, N. Y. 10019

B ernard D. M arcus 
Kaufman & Harris 
415 Oliver Building 
Pittsburgh, Pa. 15222

Attorneys for Respondents



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