Rodgers v Teitelbaum Writ of Mandamus and/or Writ of Prohibition

    IN THE

UNITED STATES COURT OP’ APPEALS

FOR THE THIRD CIRCUIT

No „

JIMIE L. RODGERS and JOHN A. TURNER,

Petitioners,

v.

HONORABLE HUBERT I. TEITELBAUM,
United States District Judge,

Respondent,

UNITED STATES STEEL CORPORATION? LOCAL 1397, 
AFL-CIO, UNITED STEELWORKERS OF AMERICA? and 
THE UNITED STEELWORKERS OF AMERICA, AFL--CIO,

T r Real Parties xn Interest.

PETITION FOR A WRIT OF MANDAMUS 
AND/OR A WRIT OF PROHIBITION

WILLIAM T. COLEMAN, JR.
Dilworth, Paxson, Kalish, 
Levy & Coleman 
2600 The Fidelity Building 
123 South Broad Street 
Philadelphia, Pa. 19109

BERNARD D. MARCUS 
Kaufman & Harris 
415 Oliver Building 
Pittsburgh, Pa. 15222

JACK GREENBERG 
JAMES M. NABRIT, III 
MORRIS J. BALLER 
BARRY L. GOLDSTEIN 
DEBORAH M. GREENBERG 
ERIC SCKNAPPER

10 Columbus Circle 
New York, N. Y. 10019

Attorneys for Petitioner



I N D E X

Statement of Facts ............... ....................... 4

Statement of Issues Presented and Relief Sought .........  21

Reasons for Granting the Writ:

* Introduction ................................... . 24

> I. The Orders Forbidding Plaintiffs' Attorneys
from Meeting with the Homestead, Pennsylvania 
Branch of the N.A.A.C.P. Are Unconstitutional . 26

II. Lccal Rule 34(d) Is Unconstitutional on Its 
Face and as Applied in This Civil Rights 
Case. ..............................  38

III. The Orders of the District Court Restricting 
Communications with Individual Class Members 
Are Unconstitutional..........................  52

IV. The Order Staying All Proceedings Violates 
Plaintiffs' Rights to Due Process and Their 
Rights Under Title VII of the Civil Rights

■ Act of 1964............................... . 57

Conclusion .........................................    71
*

Table of Cases** —  ....—
Q  Alexander v. Gardner-Denver Company, 39 L.Ed.2d 147 (1974) 66

Aptheker v. Secretary of State, 378 U.S. 500 (1964) ....... 39

X  Bates v. Little Rock, 361 U.S. 516 (1960) ...............  53

Bolling v. Sharpe, 347 U.S. 497 (1954) ..................  35

~v\ Bridges v. California, 314 U.S. 252 (1941) ..............  32

Brooklyn Savings Bank v. O'Neil, 324 U.S. 647 (1945) ....  66,67

Brotherhood of Railroad Trainmen v. Virginia State Bar,
377 U.S. 1 (1964) .........................  31,32,40,41,

42,45,54

Page

i



Cases (cont'd) Page

2 Chandler v. Fretag, 348 U.S. 3 (1954) .................... 54

Clark v. American Marine Corp., 320 F. Supp. 709
(E.D. La. 1970), aff'd 437 F.2d 959 (5th Cir. 1981) . 45

Cox v. Louisiana, 379 U.S. 536 (1965) ....................  37

Cox v. Louisiana, 379 U.S. 559 (1965) ....................  37

V Craig v. Harney, 331 U.S. 252 (1941) ..................... 32

^  DeBeers Consolidated Mines Ltd. v. United States,
325 U.S. 212 (1945) ................................  25

DiCostanzo v. Chrysler Corp., 15 Fed. R. Serv.2d 1248
(E.D. Pa. 1972) ....................................  48

0 Eisen v. Carlisle and Jacquelin, 42 U.S.L. Week 4804
(May 28, 1974) .....................................  70

7, Gibson v. Florida Legislative Investigating Committee,
372 U.S. 539 (1963) ................................  53

^ — Halverson v. Convenient Food Mart, Inc., 458 F.2d 927
(7th Cir. 1972) ....................................  45

0 Hansberry v. Lee, 311 U.S. 32 (1940) ....................  57,60

Huff v. Cass Co., 485 F.2d 710 (5th Cir. 1973) ..........  44

In re Ades, 6 F. Supp. 467 (D. Md. 1934) ................. 44

J in re Sawyer, 360 U.S. 622 (1959) ........................ 32

J  investment Properties International, Ltd. v. IOS, Ltd.,
459 F. 2d 705 (2nd Cir. 1972) .......................  25

J international Products Corp. v. Koons, 325 F.2d 403
(2nd Cir. 1963) ....................................  25

Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968) . 45

Johnson v. Georgia Highway Express, 488 F.2d 714
(5th Cir. 1974) ...................................  43,45

J LaBuy v. Howes Leather Company, Inc., 352 U.S. 249 (1957) 25

)

ii



Lea v. Cone Mills, 438 F.2d 86 (4th Cir. 1971) ..........  43

Local 734 Bakery Drivers Pension Fund Trust v.
Continental Illinois Nat'l Bank and Trust Co.,
57 F.R.D. 1 (N.D. 111. 1972) ..........................  48

Malone v. North American Rockwell Corp., 457 F.2d 779
(9th Cir. 1972)   45

N.A.A.C.P. v. Alabama ex rel. Flowers, 377 U.S. 288 (1964) 24

j  N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449
(1958) .............................................  53

')'■ N.A.A.C.P. v. Button, 371 U.S. 415 (1963) .. 6,13,28,30,33,38,39,
40,41,42,44,46,50,54

N.A.A.C.P. v. Patty, 159 F. Supp. 503 (E.D. Va. 1958) .... 44

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400
(1968) ............................................  43,44

Niemotko v. Maryland. 340 U.S. 268 (1951) ...............  36

/  Organization for a Better Austin v. Keefe, 402 U.S. 415
(1971) .............................................. 27

V Pennekamp v. Florida, 328 U.S. 331 (1946) ...............  32

Petway v. American Cast Iron Pipe Co., 411 F.2d 998
(5th Cir. 1969) ............................. *...... 53

^  Powell v. Alabama, 287 U.S. 45 (1932) ................... 54
/
Rapp v. Van Dusen, 350 F.2d 806 (3rd Cir. 1965)..........

Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.),
cert, denied, 404 U.S. 1006 (1971) .................  43,45

V Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968) ........  25,45

Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002
(9th Cir. 1972) ....................................  43

/
J Schlagenhauf v. Holder, 379 U.S. 104 (1964) ............

Schulte v. Gangi, 328 U.S. 108 (1946) ...................  56

Cases (cont'd) P---3—

iii



^Shelton v. Tucker, 364 U.S. 479 (1960) ..................  53

V/ Texaco, Inc. v. Borda, 383 F.2d 607 (3rd Cir. 1967) .....  25

Thornhill v. Alabama, 310 U.S. 88 (1940) ................  36

y United Mine Workers v. Illinois State Bar Association,
389 U.S. 217 (1967) ................................  31,40

United States v. Allegheny-Ludlum Industries, Inc.,
C.A. No. 74-P-339, N.D. Ala.........................  10

United States v. Roble, 389 U.S. 258 (1967) .............  38,45

/v/\ United States v. United States Steel Corporation,
371 F. Supp. 1045 (N.D. Ala. 1973) .................  6,36

)(, United Transportation Union v. State Bar of Michigan,
401 U.S. 576 (1971) ..........................  31,32,39,44

v Will v. United States, 389 U.S. 90 (1967) ...............  25

0  Williamson v. Bethlehem Steel Co., 468 F„2d 1201
(2nd Cir. 1972) .................................  57,60,63

Wood v. Georgia, 370 U.S. 375 (1962) .....................  28,32

Yick Wo v. Hopkins, 118 U.S. 356 (1886) .................  36

Statutes and Rules

28 U.S.C. § 1292 (b) ......................................  17

28 U.S.C. § 1651(a) ......................................  1

42 U.S.C. § 2000e-2 (Title VII of the Civil Rights Act
of 1964 as amended) ................................  5

42 U.S.C. § 2000e-3 (a) ..................................  53

42 U.S.C. § 2000e-5 (b) .....    53

42 U.S.C. § 2000e-5 (f) (4) ................................  69

42 U.S.C. § 2000e-5(f)(5) ...........................  3,17,23,69

42 U.S.C. § 2000e-5 (k) ..................................  7,44

Cases (cont'd) Page
~7

iv



Statutes and Rules (cont'd) Page

Fed. R. App. P., Rule 21 ................................. 1

Fed. R. Civ. P., Rule 23(b)(2)   5

Fed. R. Civ. P., Rule 23(c)(1) ......................... 5,23,70

Fed. R. Civ. P., Rule 23(d) .............................. 47

Local Rule 19B, S.D. Florida ............................  48

Local Civil Rule 22, N.D. Illinois ......................  48

Local Rule 20, D. Maryland ..............................  48

Local Rule 34(d), W.D. Pa.........................  2,3,21,38,45,
46,47,49,50

Local Rule 6, S.D. Texas ................................  48,49

Local Rule C.R. 23(g), W.D. Washington ..................  48

Other Authorities

ABA COMM. ON PROFESSIONAL ETHICS, OPINIONS, No. 148 (1935) 43

ABA C0MI>1. ON PROFESSIONAL ETHICS, INFORMAL OPINIONS,
No. 786 (1964) .....................................  44

ABA COMM. ON PROFESSIONAL ETHICS, INFORMAL OPINIONS,
No. 888 (1965) .....................................  43

ABA COMM. ON PROFESSIONAL ETHICS, INFORMAL OPINIONS,
No. 992 (1967) .....................................  43

D. C. BAR ASSN. COMM. ON LEGAL ETHICS AND GRIEVANCE,
REPORT (January 26, 1971) ..........................  44

Legislative History of the Equal Employment Opportunity
Act of 1972 (H.R. 1746, P.L. 92-261) (Govt. Printing 
Office, 1972) ......................................  53

Manual for Complex Litigation (1973), Suggested Local 
Rule No. 7 (§ 1.41 "Preventing Potential Abuse of 
Class Actions") ..................................... 48,50

Note, The First Amendment Overbreadth Doctrine, 83
Harv. L. Rev. 844 (1970) ...........................  39

v



IN THE

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

No.

JIMMIE L. RODGERS and JOHN A. TURNER,
Petitioners,

v.

HONORABLE HUBERT I. TEITELBAUM,
United States District Judge,

Respondent,

UNITED STATES STEEL CORPORATION; LOCAL 1397, 
AFL-CIO, UNITED STEELWORKERS OF AMERICA; and 
THE UNITED STEELWORKERS OF AMERICA, AFL-CIO,

Real Parties in Interest.

PETITION FOR A WRIT OF MANDAMUS 
AND/OR A WRIT OF PROHIBITION

Pursuant to 28 U.S.C. § 1651(a) and Fed. R. App. P. 21, 

petitioners respectfully request that the Court issue its writ 

of mandamus commanding the respondent, the Honorable Hubert I. 

Teitelbaum, to vacate his several orders and the local rule of 

court set forth below and, in addition, or, in the alternative, 

it is respectfully requested that the Court prohibit the 

respondent from enforcing those orders and the local rule of 

court hereinafter listed:



1. An order (App. 189a) issued temporarily June 27, 1974, 

and finalized by an order of July 19, 1974 (App. 259a), which 

applies Local Rule 34(d) so as to forbid plaintiffs' attorney 

Bernard D. Marcus and his associates from accepting an unsolicited 

invitation to attend a meeting of the Homestead, Pennsylvania 

Branch of the National Association for the Advancement

Colored People (N.A.A.C.P.) for the purpose of discussing racial 

discrimination at the Homestead Works of the United States Steel 

Corporation, including particularly the effect on said plant of 

a nationwide employment discrimination consent decree entered in 

a suit brought by the United States in the United States District 

Court for the Northern District of Alabama. (The motion of 

plaintiffs "to communicate with the NAACP" was stated by the 

respondent to be "denied at this time without prejudice to 

renewal of that motion at a time which would appear to be more 

appropriate to me," but there was no elaboration of the consider­

ations governing an "appropriate time" for such a meeting.)

2. Local Rule 34(d) of the United States District Court 

for the Western District of Pennsylvania, which provides:

Rule 34. Class Actions.
In any case sought to be maintained as a 
class action.

*  *  *

(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

2



party to the action, until such time as an 
order may be entered by the Court approving 
the communication.

3. An order (App. 82a-86a) issued September 29, 1973, and

reaffirmed by order of July 19, 1974 (App. 259a-260a), which

applies Local Rule 34(d) of the United States District Court 

for the Western District of Pennsylvania so as to limit plain­

tiffs and their attorneys from any communication with members 

of the putative class who are not formal parties.

4. An order issued July 19, 1974 (App. 259a-265a), which 

applies Local Rule 34(d) so as to forbid plaintiffs' attorneys 

from communication with members of the class who on their own 

initiative request an opportunity to consult with said attorneys, 

unless each individual class member first submits an affidavit 

about how they happened to contact counsel.

5. An order issued June 27, 1974 (App. 174a-175a, 188a), 

forbidding plaintiffs from conducting any further discovery and 

staying all proceedings, including a class action determination, 

until at least January 15, 1975, notwithstanding that it is the 

statutory duty of respondent "to assign the case for hearing at 

the earliest practicable date and to cause the case to be in 

every way expedited" (42 U.S.C. § 2000e-5(f)(5)).

In order to facilitate presentation and disposition of the 

matter, petitioners have filed a notice of appeal from the 

orders of June 27, 1974, and July 19, 1974, in the district court,

3



and are filing in this Court, together with the present petition 

for prerogative writs, the following motions:

(1) a motion for consolidation of the present 

application for prerogative writs with the 

appeal, and for consideration of the appli­

cation for prerogative writs on the record 

filed in the appeal;

(2) a motion for a stay of the challenged orders 

and for pendente lite relief during consid­

eration of the consolidated proceeding in 

this Court, and/or for expedited hearing of 

the consolidated proceeding.

The relevant papers in the district court, to which refer­

ence is made in this petition are included in an appendix to 

this petition filed herewith, and will be identified by 

reference to page numbers in the appendix.
The grounds for the petition for writs of mandamus and/or

prohibition are as follows:

I. STATEMENT OF FACTS

1. On August 24, 1971, petitioners (who are plaintiffs 

below) filed in the United States District Court for the Western 

District of Pennsylvania a complaint for injunctive relief, back 

pay and damages which was styled Rodgers and Turner v.._United

4



States Steel Corporation, et al. , Civil Action No. 71-793. The

amended complaint (App. 5a-15a) sought to remedy racial dis­

crimination at the Homestead Works of the United States Steel 

Corporation. Plaintiffs are black employees of the defendant 

corporation and members of the defendant unions. The amended 

complaint alleged extensive discriminatory employment practices 

in violation of 42 U.S.C. 2000e-2 [Title VII of the Civil Rights

Act of 1964, as amended]. The action was sought to be main-
♦

tained as a class action pursuant to Federal Rule of Civil 

Procedure 23(b)(2) on behalf of a class of more than 1,200 black 

workers employed at the Homestead facility during a specified 

period of time on jobs represented by defendant local union. 

Plaintiffs have sought by repeated motions and briefs to have a 

class determination pursuant to Rule 23(c)(1) (App. 35a-41a, 46a- 

66a, 97a-117a) but the district court has deferred decision of 

the matters (App. 82a-86a, 174a-175a).

2. One of the attorneys for plaintiffs is Bernard D. Marcus 

of the Pittsburgh firm of Kaufman & Harris. Associated with him 

in the case are several attorneys employed by the N.A.A.C.P. Legal 

Defense and Educational Fund, Inc. (the Legal Defense Fund), a 

non-profit corporation engaged in furnishing legal assistance in 

certain cases involving claims of racial discrimination. The 

Legal Defense Fund, which is entirely separate and apart from 

the National Association for the Advancement of Colored People

5



has been approved(N.A.A.C.P.), but has similar aims and purposes, 

by a New York court to function as a legal aid organization.

Since 1940, the Legal Defense Fund has furnished legal assistance 

in civil rights matters in state and federal courts throughout 

the nation, usually in conjunction with local counsel such as 

Mr. Marcus and his firm in this matter. N.A.A.C.P. v. Button,

371 U.S. 415, 421, n. 5 (1963). Various Legal Defense Fund staff 

attorneys (including Messrs. Goldstein and Bailer and 

Mrs. Greenberg, involved in the present matter) have developed 

expertise as counsel in cases involving employment discrimination. 

Mr. Goldstein was plaintiffs' trial counsel in a similar matter 

which resulted in injunctive relief and back pay awards for 

black employees of the United States Steel Corporation facility 

at Fairfield, Alabama. United States v. United States Steel 

Corporation, 371 F. Supp. 1045 (N.D. Ala. 1973). Accordingly,

Mr. Goldstein has developed specific knowledge and expertise about 

problems of racial discrimination in the steel industry and past 

and present practices of the defendant company and unions.

3. In undertaking to represent the named plaintiffs, 

plaintiffs' attorneys did not accept or expect any compensation 

from them, nor do they expect to receive any compensation from 

any additional named plaintiffs who may hereafter be added, or 

from any member of the plaintiff class. Mr. Marcus and his firm 

expect to be compensated in this matter only by such attorneys

6



fees as may eventually be awarded by the court. Any fees awarded 

by the court on account of work done by the employees of the 

Legal Defense Fund will be paid over to that non-profit corpora­

tion and will not be paid to the individual staff lawyers whose 

compensation is limited to annual salaries. Plaintiffs' entitle­

ment to an award of counsel fees by the court would not in any 

event be affected by the number of individuals who are named as 

parties plaintiff since the fees are not paid by the clients but, 

rather, they are taxed as costs to the defendant. See 42 U.S.C.

§ 2000e-5 (k).

4. Plaintiffs' counsel have engaged in extensive and diffi­

cult investigative efforts required to prepare and present a 

comprehensive employment discrimination case against the defendant 

company and unions. The investigation has included extensive 

discovery efforts, including examination of records and computer 

analysis of relevant records. In response to the court's direc­

tive, a certificate by one of plaintiffs' attorneys, Mr. Leete, 

on March 21, 1974, estimated that plaintiffs' attorneys and their 

research staff had devoted 225 hours reviewing company documents 

and planning and coordinating their inspection (App. 87a-92a) and 

this estimate did not account for a substantial amount of time 

relating to the initial preparation of the case, depositions, con­

ferences and computerized discovery, all of which has taken far 

in excess of 1,000 hours.

7



5. To date, plaintiffs' attorneys have been forbidden during 

their investigation of the case and preparation from communicating 

with any members of the plaintiffs' class except for the named 

plaintiffs Jimmie L. Rodgers and John A. Turner. The prohibition 

on communication results from a local rule of court and a series 

of oral orders by the court. The rule of court is Local Rule 34(d) 

which is quoted in full above at pp. 2—3. The plaintiffs first 

effort to obtain permission to communicate with class members was 

by motion filed September 21, 1973. The motion for permission to 

communicate (App. 44a-45a) (which accompanied a memorandum in sup­

port of plaintiffs' motion for a class determination) (App.

46a-66a) 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 depends m  sig­

nificant part on their having access to class members, to 

investigate their complaints, and to supplement the available 

defendants' documentary materials by interviewing their employees 

(App. 44a-45a). It alleged: "At this stage, such communication

becomes appropriate and even imperative" (App. 45a). Plaintiffs 

asked for a general order "allowing proper communications" and 

stated that "It would be impractical and unworkable for plaintiffs 

to reapply specifically for permission to communicate with particu­

lar class members" (App. 45a).

8



6. The ruling of the court on the motion to communicate is 

set forth below from the transcript of September 29, 1973:

THE COURT: * * *
As to discussion with individual members of 

the class, if you will notify the defendants in 
advance whom you intend to contact in the class 
and what you intend to ask them, and what you 
think you can get from them, then I will permit 
you to contact them for the limited purposes that 
you have set forth, giving the right to the defend­
ant to object to your contacting any particular 
member of the class, because it seems to me that 
this is absolutely going to be an exercise in 
futility when you go to an employee of the United 
States Steel Corporation and ask him what testing 
means were used in 1962. I can’t conceive of_him 
knowing, and I think it would be a waste of time.
(App. 84a-85a)

*  *  *

THE COURT: The ruling of the Court is that
they can't contact people who art: uoL named as 
parties until an order of Court. No person is 
to be contacted without my permission. As to the 
specific individual concerned 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)

7. On April 12, 1974, Honorable Sam C. Pointer, Jr., United 

State District Judge for the Northern District of Alabama, signed 

two consent decrees (App. 287a-355a), tendered in an employment 

discrimination suit filed that day by the United States and the 

Equal Employment Opportunity Commission against 9 major steel

9



companies (including U. S. Steel Corporation) and the United 

Steelworkers of America, AFL-CIO-CLC (App. 278a-286a). The case 

is styled United States v. Allegheny Ludlum Industries, Inc.,

C.A. No. 74-P-339, N.D. Ala. The decrees include an injunction 

which purports to remedy systemic racial discrimination and sex dis­

crimination in over 200 plants employing more than 65,000 

minority and women workers operated by the nine steel companies, 

including the Homestead Works of U. S. Steel. Promptly after 

learning of the provisions of the consent decrees, plaintiffs 

Rodgers and Turner, in company with other black steelworkers in 

Alabama, Maryland and Texas plants, moved to intervene in the 

Alabama case (App. 373a-387a), and to set aside the consent 

decrees on the ground that various provisions of the decrees 

were unlawful and unconstitutional (App. 388a-407a). They objected, 

among other things, that the decree was unlawful in that it sanc­

tioned a procedure by which the defendant companies would tender 

back pay to certain minority steelworkers in return for the workers 

signing waivers or releases of certain of their rights to remedy 

employment discrimination. Intervenors attacked the proposed 

waivers as void as against public policy and contrary to Title VII. 

On June 7, 1974, Judge Pointer, after hearing arguments and 

receiving extensive briefs, entered an opinion and order (App. 

356a-364a, 365a-366a) permitting Rodgers and Turner (and the others 

in similar cases) to intervene for the limited purpose of seeking

10



\

to stay or vacate the consent decrees, but overruling and denying 

their claims that the consent decrees are illegal. The inter- 

venors then filed a notice of appeal, and applied to Judge Pointer 

for a stay pending appeal. The stay was denied by order and 

opinion dated July 17, 1974 (App. 367a-371a, 372a). At this 

writing a request for a stay pending appeal is being prepared for 

submission to the United States Court of Appeals for the Fifth 

Circuit. Copies of the consent decrees, the intervenors motions 

to set aside the decrees and to intervene, and Judge Pointer's 

two opinions and related documents are included in the appendix 

(App. 278a-525a).
8. Meanwhile, on April 17, 1974, plaintiffs Rodgers and 

Turner moved in the court below for an injunction to restrain the 

defendants from communicating with class members at Homestead 

Works with respect to the consent decrees, including such matters 

as back pay (App. 118a-123a). It was noted that the consent 

decrees provided for a series of such communications and notices 

by the defendants to class members, including notices of rights 

under the injunctive decree respecting seniority and similar 

matters, and notices advising workers of their right to obtain 

back pay if they would execute releases or waivers in certain cir­

cumstances and during a specified 30 day period in which back pay 

offers will be tendered. Prior to a hearing on the motion for an 

injunction, the parties entered into an agreement which was stated

11



to the court at a hearing on April 24, and plaintiffs withdrew 

the request for an injunction (App. 126a-135a). Defense counsel 

agreed to show plaintiffs' counsel copie? of any proposed com­

munications to the class concerning back pay prior to their 

distribution and permit plaintiffs sufficient time to renew their 

objections in court and obtain a ruling prior to the communica­

tion. ibid. Defendants also promised to review with plaintiffs 

counsel the "format" of the explanation to be given to class 

members by the Implementation Committees created by the consent 

decrees. The Implementation Committees are composed of representa­

tives of labor and management.
9, On June 26. 1974. plaintiffs Rodgers and Turner filed a 

motion in the court below (W.D. Pa.) asking that the court grant 

them permission to communicate with six named individual members 

of the class, Messrs. Kermit R. White, Linwood Brosier, Abraham 

Lance, Frank Moorfield, Rosse Jackson and Eugene Arrington (App. 

143a-153a). The motion explained that plaintiffs' counsel had 

been contacted by Mr. White and Mr. Brosier on behalf of themselves 

and the other four men "for the purpose of seeking representation 

for their claims of employment discrimination at Homestead Works 

of United States Steel Corporation" (App. 144a). The motion 

pointed out that neither Local Rule 34(d) nor the court's prior 

order had specifically dealt with unsolicited requests for repre­

sentation, but noted that defense counsel had by letter objected

12



to the communication. A supporting affidavit (App. 140a-142a) 

by Mrs. Elizabeth Smith, Assistant Labor Director of the N.A.A.C.P., 

explained how she had been contacted with a request for information 

and assistance by Messrs. White and Brosier, and how she in turn 

had suggested that they contact the attorneys of the Legal Defense 

Fund who she knew were involved in the Alabama litigation and 

the Rodgers and Turner case.
The same June 26 motion also asked the court for permission 

for plaintiffs' counsel to "Meet with members of the Homestead 

Chapter of the N.A.A.C.P. to respond to said chapter's direct 

request to discuss the subject of discrimination at the Homestead 

Works of United States Steel Corporation" (App. 143a). The 

motion pointed out the nature of the N.A.A.C.P. and its purposes, 

explained the circumstances 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 constitution­

ally protected rights of free speech and association 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 succeed­

ing cases (App. 147a).
10. On the same date, June 26, plaintiffs filed a related 

motion entitled "Renewed Motion for Permission to Communicate with 

Members of the Proposed Class" (App. 166a-170a). The latter

13



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 counsel were unable to communicate with class mem­

bers 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 mem­

bers of the class in order to effectively represent 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 communi­

cation 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 waiving their

rights.
11. On June 26, plaintiffs also filed a renewed motion to 

compel answers to certain interrogatories and for production of 

documents (App. 154a-165a). This motion, too, asserted plain­

tiffs' understanding that the court had set the close of discovery 

for January 15, 1975, and sought a ruling with respect to a large 

number of interrogatories which defendants had objected to or 

answered in a manner deemed inadequate by plaintiffs.

12. At a conference with the court on June 27, 1974, the 

court issued a number of rulings on the motions discussed above

14



(App. 171a-189a). First, the court took up the motion to compel 

answers to interrogatories and production of documents under 

Rule 37. The district judge stated that it was his impression 

that at an earlier conference he had said "We were going to 

hold everything in limbo until January 15th [1975] to find out 

what was going to happen in the South, and then we would see 

what were going to do after we found out where we were" (App. 

175a). Plaintiffs' counsel stated his different recollection 

that January 15, 1975, was the discovery deadline, and, in any 

event, strenuously objected to holding the Rodgers case in abey­

ance pending developments flowing from the Alabama consent decree. 

Plaintiffs' counsel objected that they were not parties to the 

consent decree, had no notice of it prior to its entry, and that 

they were not bound by the consent decree because they had 

"never had their day in court on the determination of discrimina­

tion or appropriate relief" (App. 173a). But the court ruled 

"It seems to me to go forward in two different areas when it 

might be moot as a result of what might happen as a result of a 

consent decree is an unusual expenditure of money and a waste of 

your time and mine" (App. 175a). And further: "We will talk

about further discovery in January. I want to see what is going 

to happen there before we go forward with discovery on the 

matter" (App. 175a).
Because of the district judge's position that this was a

15



matter he had previously' ruled on ("That's what I said, and 

that's what I meant, and that's what I still mean.") (App. 175a), 

there was no full argument about whether either in law or in 

fact the consent decree could possibly moot the Rodgers case. 

Plaintiffs could quite readily have established important rele­

vant facts: First, a number of black steelworkers at Homestead

Works, who were included in the class sought to be represented 

in Rodgers, would not even be tendered back pay under the consent 

decree which limits back pay to workers whose date of employment 

precedes January 1, 1968, and who are still employed or have 

retired on pension within the last two years (App. 328a-330a).

The effect is to define a narrower class than that in Rodgers.

The class in Rodgers was defined by stipulation to include black 

workers employed at Homestead Works during the period August 24, 

1971, and May 1, 1973, in jobs represented by the local union 

(App. 42a-43a). Second, there was widespread dissatisfaction 

of black steelworkers with the consent decree as reflected by a 

statement by the President of the Homestead Branch of the N.A.A.C.P. 

in May 1974, asserting that there were "from 400 to 500 Black 

employees who have pledged not to sign the release."

13. With respect to the motion to communicate, the court 

on June 27 heard arguments and took the matter under advisement 

pending considerations of briefs on the constitutional issues. 

However, the court did specifically forbid Mr. Marcus from

16



attending an N.A.A.C.P. meeting during the week of July 7 (App. 

189a).
14. On July 8, 1974, plaintiffs by motion (App. 190a-193a) 

asked the court to enter a written order with respect to its 

June 27 rulings and that the court enter an order in the terms 

required by 28 U.S.C. § 1292(b) so that plaintiffs might pursue 

an interlocutory appeal. Plaintiffs also asked that the court 

grant a stay of its orders denying discovery and prohibiting 

communication pending an appeal or application for prerogative 

writs. Plaintiffs also moved for similar relief, i.e., a stay 

and a section 1292(b) order in the event the court rejected 

plaintiffs' motion for permission to communicate with the six 

named individuals and to meet with the N.A.A.C.P. chapter. The 

pleading also directed the court's attention to the statutory 

requirement of expeditious handling of Title VII cases. 42 U.S.C

§ 2000e-5 (f) (5) (App. 191a-192a).
15. On July 19, 1974, the court held another conference

and ruled on the pending motions (App. 255a-276a). The court 

denied the motions to certify questions to the Court of Appeals

(App. 259a). The court ruled:
As to the motion to communicate with the NAACP, 

that is denied at this time without prejudice to 
renewal of that motion at a time which would appear 
to be more appropriate to me.

Now, as to the motion to communicate with 
individuals who have requested that they discuss

i

17



matters with counsel, that motion is granted.
However, the previous order forbidding solici­
tation and requiring prior Court approval of 
all communications with any other individuals 
is left intact. You may talk to those six 
individuals, but you may not solicit anybody 
else, nor may you make any communications with 
anybody else except pursuant to Court approval.
(App. 259a-260a)

Subsequently, in the conference, defense counsel argued that only 

two of the six individuals had contacted Mr. Marcus representing 

the other four, and that accordingly Mr. Marcus should be limited 

to communicating with Mr. White and Mr. Brosier. The court then 

prescribed an affidavit procedure by which plaintiffs' counsel
I

may not talk to any class members until after they have obtained 

an affidavit from the class members stating how they happened to 

contact counsel. The ruling is reflected in the following 

colloquy:

THE COURT: How did you get six?

MR. MARCUS: I stated in my motion that the
two individuals that Mr. DeForest has identified 
contacted me on their behalf and on behalf of 
four other gentlemen who are also listed in the 
motion. They had specific authorization from 
those gentlemen to so contact me, and they asked 
that I represent all of those individuals.

THE COURT: You file an affidavit with the
Court by those two individuals stating that, and 
then you may contact the other four.

MR. DeFOREST: Your Honor, I have one problem.
I would like it made clear that because I fear 
that we will have repeated situations where cer­
tain persons will call and claim they represent 
nine, ten, or twenty persons, and then accordingly

18



Mr. Marcus may communicate with them. Is that 
right?

THE COURT: No. He may not communicate with
anybody beyond the two plus the four after the 
filing of the affidavit.

MR. MARCUS: Unless I seek further approval
of the Court.

THE COURT: We will see what happens.

MR. DeFOREST: Would the Court be amenable
that Mr. Marcus contact the other four if each 
called individually and stated —

THE COURT: Or by the filing of an affidavit
stating they want to see him.

MR. DeFOREST: That would be better.

MR. MARCUS: I am a little confused. Do you
want an affidavit of the two individuals stating 
■chat they represent the other luui?

THE COURT: And the four individuals stating
that, that is correct.

MR. MARCUS: I can't get an affidavit if I
don't communicate with the other four.

THE COURT: You may communicate to the extent
to ask for such an affidavit. If that is filed, 
then you may communicate with them. In other 
words, I don't want to set up a system of runners 
here.

MR. MARCUS: Neither do I.

THE COURT: So I will limit it to the two plus
the four with those affidavits, but before you talk 
to them about the merits, I want you to have the 
affidavits and file them. (App. 261a-262a)

16. At the July 19, 1974, conference, the court also took 

up the matter of a proposed letter to all class members and an

19



attached outline of the consent decree which had then recently 

been approved by Judge Pointer. Defendants had undertaken 

before Judge Pointer to submit the notice to judges who had pend­

ing local cases. Plaintiffs advised the court that they had 

been given no notice or opportunity to be heard by Judge Pointer 

on the letter and outline but that they were seeking a hearing 

before Judge Pointer to revise the notice. Plaintiffs submitted 

their proposed changes to Judge Teitelbaum. Judge Teitelbaum 

ruled that he would not pass on objections to the'letter to be 

sent at the Homestead Works but would leave the matter entirely 

to Judge Pointer (App. 257a-259a). In the course of the proceed­

ings Judge Teitelbaum also stated that if Judge Pointer authorized 

plaintiffs to communicate with the class he would not object:

THE COURT: If Judge Pointer will authorize you
to send out a letter, I have no objection.

MR. MARCUS: Or to communicate with any member
of this class.

THE COURT: I have no objection if he does it.
I am not going to do it myself. That is what I'm 
saying. If Judge Pointer wants to do it, the 
case is with him, and he is far more familiar with 
the people to explain why the people shouldn't 
approve the settlement by solicitation, by letter, 
orally or any other way.

MR. SCHNAPPER: That is the problem we will
take up with him.

THE COURT: I don't want to be a side agent
operating at the side affecting something before 
another judge. (App. 266a)

20



Subsequently, at a conference with Judge Pointer on July 23,

1974, Judge Pointer ruled orally that he had no objection to 

any communication with the class in Homestead Works which might 

be permitted by Judge Teitelbaum, nor did he believe that it 

would interfere with the consent decree if the Rodgers litigation 

proceeded (App. 518a-520a). This was reported to Judge Teitelbaum 

in a Report to the Court containing the transcript of the July 23 

conference (App. 277aa-277bb).

STATEMENT OF ISSUES PRESENTED AND RELIEF SOUGHT

This petition presents the following issues:

1. Whether the orders of court prohibiting plaintiffs' 

counsel from meeting with an N.A.A.C.P. chapter are unconotitu— 

tional in violation of the Due Process Clause of the Fifth 

Amendment and the First Amendment protections of freedom of speech, 

freedom of association, and privacy of association in that:

a. The order overbroadly prohibits constitutionally 

protected First Amendment activities.

b. The order is a discriminatory regulation of free 

speech which favors the steel company and union and disadvantages 

black employees.
2. Whether Local Rule 34(d) of the Western District of 

Pennsylvania is unconstitutional on its face and as applied in 

violation of the Due Process Clause and the First Amendment

21



protections of freedom of speech, freedom of association and 

privacy of association in that the rule overbroadly infringes 

on constitutionally protected activities.

3. Whether the orders of court applying Local Rule 

34(d) are unconstitutional in violation of the Due Process 

Clause and the First Amendment in that:
a. The requirement that there be no communication 

by counsel with class members who approach counsel without 

first filing an affidavit in court before discussing substan­

tive matters (i) violates the First Amendment rights of freedom 

of association and privacy of association and free speech as 

well as (ii) the right to access to legal counsel and also

(iii) unfairly and discriminatorily disadvantages plaintiffs

in the presentation of their case.
b. The requirement that there be no communication 

by plaintiffs' counsel with class members on counsel's initia­

tive in investigating the case and gathering facts without first 

disclosing the identity of the class members and the expected 

nature of the facts to be learned from the class members vio­

lates (i) the First Amendment rights of free speech, freedom

of association and privacy of association and also (ii) unfairly 

and discriminatorily disadvantages plaintiffs in the presenta­

tion of their case.

",22  -



4. Whether the order of court staying all discovery 

and delaying all proceedings in this case, including a class 

action determination, until at least January 15, 1975, is an 

abuse of discretion and contrary to law in that:

a. It is contrary- to the provisions of 42 U.S.C.

§ 2000e-5(f) (5) ;

b. It violates the plaintiffs' right to due process 

of law by impairing their rights in this pending case and 

threatening to defeat their rights on the basis of a consent 

decree in another court entered without notice or hearing to 

plaintiffs and without their agreement;

c. It is contrary to Rule 23(c)(1), Fed. R. Civ. P.

The relief requested is more fully set forth above at

pages 2-3. Petitioners seek an order vacating or prohibiting 

enforcement of the several orders of court and the rule of 

court described in detail above.

23



REASONS FOR GRANTING THE WRITS

Introduction

This is an extraordinary case in several aspects. The 

issues of freedom of speech, freedom of association and privacy 

of association and right to counsel are raised by orders of the 

court below which restrict free speech and association in a 

sweeping and unprecedented fashion. The order forbidding, plain­

tiffs' counsel from even attending a meeting of a local N.A.A.C.P. 

chapter, without regard to the content of their speech, asserts 

a right to regulate free association more broad than that ever 

claimed since the Supreme Court repudiated Alabama's total 

repression of the N.A.A.C.P. by ousting it from the State. 

N.A.A.C.P. v. Alabama ex rel. Flowers, 377 U.S. 288 (1964). ihe 

several orders fashioned below imposing procedural restraints on 

communication between counsel and black steelworkers involve 

narrower, but no less important issues of free speech and private 

communication, as well as substantial claims of unfair discrim­

ination. These restrictive orders stem from a local rule of 

court which more broadly restricts free speech than any other 

federal court rule or order our research has uncovered.

The case is extraordinary, too, because the present issues 

arise out of an extraordinary event. That event is the effort of 

major steel companies and federal government agencies, respec­

tively charged with obeying and enforcing fair employment laws,

24



to compromise the employment discrimination claim of every blc*ck 

steelworker in the nation by an agreement negotiated without the 

participation of a single black worker's representative. The 

consent decree is now used to justify an order below which 

stays all proceedings and thus to impair the rights of black 

steelworkers to pursue their statutory remedies in a pending 

case.
Prerogative writs are appropriate because the district 

court's oral orders and rule of court are "a clear abuse of 

discretion," LaBuy v. Howes Leather Co., 352 U.S. 249, 257 

(1957), and a judicial "usurpation of power," De Beers Consoli­

dation Mines Ltd, v. United States, 325 U.S. 212, 217 (1945). 

These unprecedented rulings also present an issue of first 

impression" proper for the exercise of this Court s supervisory

power over the administration of justice. Schlagenhauf_v_.— Holdg_r

379 U.S. 104, 110-12 (1964). In such circumstances, "the writ 

serves a vital corrective and didactic function," Will v. United 

States, 389 U.S. 90, 107 (1967); Rapp v. Van Dusen, 350 F.2d 806, 

811-12 (3rd Cir. 1965); Texaco, Inc, v. Borda, 383 F.2d 607 (3rd 

Cir. 1967). See also, Investment Properties International, Ltd. 

v. IQS, Ltd., 459 F.2d 705, 707 (2nd Cir. 1972). Mandamus is 

the more fitting remedy when rulings and local rules of court 

infringe upon constitutional rights and Civil Rights Act policies 

Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968); International 

Products Corp. v. Koons, 325 F.2d 403, 408 (2nd Cir. 1963).

25



I.
The Orders Forbidding Plaintiffs' Attorneys From 
Meeting with the Homestead, Pennsylvania Branch 
of the N.A.A.C.P. Are Unconstitutional.

On June 27, the district court absolutely forbade plaintiffs' 

counsel Mr. Marcus and his associates, some of whom are staff 

lawyers employed by the N.A.A.C.P. Legal Defense and Educational 

Fund, Inc., from attending a meeting of the Homestead Branch of 

the National Association for the Advancement of Colored People 

which was scheduled for the week of July 7. Thereafter, on 

July 19, the district court reiterated its order and forbade 

their attendance at any meeting of the branch "without preju­

dice to renewal of that motion at a time which would appear more 

appropriate to me." The court was informed that the N.A.A.C.P. 

chapter had requested information about the Alabama consent 

decrees and the pending local litigation, and had issued an 

unsolicited invitation to plaintiffs' attorneys. The court was 

also informed that the defendants were then currently engaged in 

preparing to distribute letters and related materials to class 

members discussing the consent decrees. It was also generally 

understood that the Homestead Branch membership included persons 

within the putative class in the Rodgers case.

The order of court is an unconstitutional prior restraint 

of free speech. Moreover, it flatly and broadly prohibits all 

communication and associational activities, however lawful or

26



innocuous, between counsel and the branch. Prior restraints 

of free speech grounded upon infinitely more solid showings 

that speech would do harm than anything in this record have 

repeatedly been held unconstitutional. Organization for a 

Better Austin v. Keefe, 402 U.S. 415 (1971). The Supreme Court

said in that case:

Any prior restraint on expression comes to 
this Court with a "heavy presumption" against 
its constitutional validity. Carroll v.
Princess Anne, 393 U.S. 175, 181 (1968);
Bantam Books, Inc. v. Sullivan, 372 U.S. 58,
70 (1963). Respondent thus carries a heavy 
burden of showing a justification for the 
imposition of such a restraint. (402 U.S. 
at 419)

The district court has put forth no clear justification for 

the prior restraint imposed in this case. The ruling may be 

examined in light of the parties' contentions below. The 

defendant company contended that restraint should be imposed to 

prevent plaintiffs' attorneys from making erroneous statements 

of law or fact. The brief filed below said:

The potential dangers of such communications 
are obvious. Not only might counsel for plain­
tiffs misstate, even though unintentionally, the 
application of the Consent Decrees to the alleged 
Rodgers class, but they might also give erroneous 
opinions as to present status and future course 
or results in the instant litigation. (App. 216a)

The defendant union made a similar argument that there was an

"everpresent danger that plaintiffs' counsel will misrepresent

the present status of this lawsuit and the effect of the Consent

Decree upon it" (App. 247a).

27



We think it plain that these arguments for prior restraint 

are insufficient. Imposition of a prior restraint of speech 

to protect class members who seek counsel from the possibility 

of obtaining mistaken facts or bad advice is simply beyond 

the power of a court under the First Amendment. The suggestion 

of the company that members of a civil rights organization must 

be protected from even "unintentional" misstatements by an 

attorney stretches the claim to a demand for total suppression 

of free speech. Only by keeping silent can one avoid an "unin­

tentional" error. "__ [T]he Constitution protects expression

and association without regard to -- the truth, popularity

or social utility of the ideas and beliefs which are offered." 

N.A.A.C.P. v. Button, 371 U.S. 415, 444-445 (1963); see also,

Wood v. Georgia, 370 U.S. 375, 387 (1962). We submit that the 

accuracy of the facts that plaintiffs' attorneys give the 

N.A.A.C.P. branch is no more the business of the defendant than 

it is plaintiffs' business what facts the company lawyers tell 

the executives of the steel company or their shareholders. Nor 

is it the proper concern of the court to restrain in advance 

citizens, who freely join a civil rights organization, from 

freely communicating with lawyers about matters of mutual concern.

The court below did make plain that the prior restraint was
1/

not merely to prevent soliciation of clients. When Mr. Marcus 

1/ See infra, n. 3, at pp. 44-45.

28



asked the judge if he and his colleagues could attend the meeting 

if they would promise not to represent any of the individuals 

there, the judge responded to the effect that his concern was 

that they might "sabotage the settlement in Judge Pointer's 

court." The colloquy was as follows:

MR. MARCUS: Your Honor, I wonder if we
could suggest an alternative since this is 
your main concern in dealing with this problem 
of equal time and communicating with respect 
to matters that the defendants are being per­
mitted to communicate, and that is, if we will 
agree not to represent in any action, other 
than a class action that may be pending, those 
individuals who would like us to discuss the 
consent decrees or the pending litigation with 
them, would that be satisfactory to do this?

THE COURT: That is exactly what I don't
want. That is ovaoHv what I do not want.

MR. MARCUS: This avoids any solicitation
and barratry where we agree in advance not to 
represent them.

THE COURT: That is worse than enabling
people to go to an alleged interested party 
and attempt to sabotage the settlement in 
Judge Pointer's court, and I don't want that 
to happen. (App. 265a-266a)

Thus, Judge Teitelbaum’s concern with communications which 

he felt would "sabotage" the settlement has resulted in a prior 

restraint which was never even suggested by Judge Pointer who 

approved the settlement. Judge Pointer has not seen fit to use 

his judicial powers either to persuade any black steelworkers 

to accept the settlement or to interfere in any manner with their

29



right to oppose it. We believe that members of the N.A.A.C.P. 

and any other black steelworkers have a right to freely organ­

ize to oppose the settlement in whole or in part and to seek 

guidance from lawyers knowledgeable about the case, free of any 

prior restraints on their communications.
i

The activities of the N.A.A.C.P. and Legal Defense Fund 

attorneys have been held by the Supreme Court to be within the 

sphere of constitutionally protected activity. It is quite 

clear then that an order banning lawyers from attending an 

N.A.A.C.P. meeting touches on constitutionally protected rights. 

The Supreme Court in N.A.A.C.P. v. Button, 371 U.S. 415 (1963), 

has specifically made clear that restriction of political

2/

2/ Judge Pointer, when asked on July 23, 1974, if plaintiffs 
could communicate with the class in Pittsburgh, stated:

THE COURT: It's a very touchy area, as you
can understand, I'm sure, when you present it 
in that light.

I think the best thing that I can say is 
that I have no objection to that procedure.

I think that particular problem is most 
directly a matter for that District Court and 
it's [sic] local rules and the way it analyzes 
such.

I can see no conflict with the administra­
tion of the consent decree if you were to be 
given that permission.

And that's about all I can say. (App. 518a)

30



association of the exact kind here at stake is constitutionally 

impermissible:
In the context of NAACP objectives, litigation is 
not a technique of resolving private differences, 
it is a means for achieving the lawful objectives 
of equality of treatment by all government, fed­
eral, state and local, for the members of the Negro 
community in this country. It is thus a form of
political expression.

*  *  *

The NAA.CP is not a conventional political 
party; but the litigation it assists, while serv­
ing to vindicate the legal rights of members of 
the American Negro community, at the same time 
and perhaps more importantly, makes possible the 
distinctive contribution of a minority group to 
the ideas and beliefs of our society. For such 
a group, association for litigation may be the 
most effective form of political association.
(371 U.S. at 429, 431.)

The Button decision has spawned a line of cases that ratify this 

principle. Brotherhood of Railroad Trainmen v. Virginia exrel. 

State Bar, 377 U.S. 1 (1964); United Mine Workers v. Illinois 

State Bar Association, 389 U.S. 217 (1967); United Transporta­

tion Union v. State Bar of Michigan, 401 U.S. 576 (1971). The 

common thread running through our decisions in fflACPiv.— Button , 

Trainmen and United Mine Workers is that collective activity 

undertaken to obtain meaningful access to the courts is a federal 

right within the protection of the First Amendment." United 

Transportation Union, supra, 401 U.S. at 585. Judicial injunc­

tions of "solicitation" which were far more narrowly tailored 

than the prohibition here— and which were issued after, rather

31



than before, a hearing on the fact of solicitation— have 

repeatedly been held unconstitutional. E.g., United Transporta­

tion Union, supra.

Plaintiffs' counse’l are not stripped of their First Amend­

ment rights simply because they are attorneys before the bar of 

the court. Brotherhood of Railroad Trainmen, supra, 377 U.S.

1, 8. Judicial attempts to curb even broad-scale, mass-media 

dissemination of "out-of-court publications pertaining to a 

pending case," Bridges v. California, 314 U.S. 252, 268 (1941), 

have repeatedly been held unconstitutional in the absence of a 

demonstration of "clear and present danger" of "actual inter­

ference" with the conduct of the litigation, amounting to "ser­

ious ... harm to the administration of law," Wood v. Georgia,

370 U.S. 375, 384, 393 (1962). The unbroken line of cases from 

Bridges to Wood, which includes Craig v. Harney, 331 U.S. 252 

(1941); Pennekamp v. Florida, 328 U.S. 331 (1946); and In re 

Sawyer, 360 U.S. 622 (1959), ought to dispel any notion that 

lawyers are without free speech rights to talk about pending 

cases. To justify punishment (let alone prior restraint) of 

speech there must be "an imminent, not merely a likely, threat 

to the administration of justice. The danger must not be remote 

or even probable; it must immediately imperil." Craig v. Harney, 

supra, 331 U.S. at 376.

The overbroad nature of the restraint on speech is still

32



another reason the district court's order violates the First 

Amendment. The Button opinion emphasized the "danger of tolerat­

ing, in the area of First Amendment freedoms, the existence of 

a penal statute susceptible of sweeping and improper applica­

tion." 371 U.S. at 433. "Because First Amendment freedoms 

need breathing space to survive, government may regulate in the 

area only with narrow specificity." 371 U.S. at 433.

The orders of June 27 and July 19 plainly are overbroad 

in banning all meetings by counsel with the branch, irrespective 

of what is said. Mr. Marcus would be in jeopardy of contempt 

for violation of the order if he attended the meetings without 

talking at all, if he attended and spoke only of unrelated sub­

jects, if he spoke about the litigation in only the most 

restrained and proper manner, or if he limited his communica­

tion to distributing copies of public documents on file in the 

courts. Thus, the broad sweep of the order plainly prohibits 

entirely lawful First Amendment protected conduct. The orders 

plainly fail the test of "narrow specificity required of all 

regulation in the area of First Amendment freedoms.

In the context of this case, the ban on plaintiffs' counsel 

meeting with the N.A.A.C.P. branch is a discriminatory regula­

tion of free speech which unfairly disadvantages those black 

employees who wish to be informed about the case or to oppose 

the consent decreesand seek additional relief not agreed to by

33



the defendants. The court's statement that it wished to pre­

vent what it termed "sabotage" of the settlement, establishes 

the discriminatory quality of the ban on meeting with the 

N.A.A.C.P. We submit that each black worker at Homestead Works 

has the right to oppose the settlement, to refuse to sign a 

waiver of his rights, and to ask the courts in a proper proceed­

ing to grant more relief from the pattern of systematic discrim­

ination they have suffered in violation of law. Every black 

worker has the right to meet with others to advance his point of 

view, to join an organization such as the N.A.A.C.P. which takes 

an interest in the matter, and to work collectively to advance 

his views. And every black worker at Homestead Works has the 

right to choose to hear a speech about the problem of racial 

discrimination in the United States Steel Corporation by a law­

yer who knows something about it and who is engaged in a lawsuit 

to remedy the discrimination. And certainly every black steel­

worker at Homestead Works has the right to try to communicate 

with lawyers who purport to represent them in a class action 

involving their jobs, their salaries, their promotions, their 

back pay, and other such matters. And where such lawyers have an 

obligation under the Federal Rules of Civil Procedure to insure 

the fair and adequate representation of such black workers in 

court, it is entirely natural that black workers should seek 

information from those lawyers. All these rights are infringed

34



by the order of the court below in order to prevent "sabotage" 

of the settlement in the Alabama case.

Such a regulation of speech is so one-sided and unfair in 

its impact upon the efforts of black workers to oppose the 

defendants in the case as to constitute a denial of due process 

of law. Due process is violated by a federally imposed discrim­

ination which, if imposed by a state, would violate the Equal 

Protection Clause. Bolling v. Sharpe, 347 U.S. 497 (1954).

The discrimination is all the more evident in the context of 

the freedom of communication enjoyed by the defendants. Not 

only are the defense counsel entirely free to consult with their 

own clients in respect to any matters relevant to the conduct of 

the lawsuit, their clients also have virtually limitless oppor­

tunity to communicate with black steelworkers in the regular 

course of business at the steel plants and in the regular course 

of the conduct of union affairs. And beyond all that, the 

defendants have judicial sanction to communicate with the black 

steelworkers to explain the meaning of the consent decrees and 

at a later date to offer them sums of back pay in return for 

releases of workers' Title VII claims. Currently "implementa­

tion committee" are meeting with workers explaining the consent 

decree. We are on the verge of a judicially sanctioned "market 

place" by which the defendants propose to buy up Title VII 

rights of tens of thousands of black workers. The propriety of

35



such a procedure is at issue in the Fifth Circuit appeal from 

the consent decree. But the fact remains that black steel­

workers' vital rights are at stake and they have a plain right 

to know facts about these developments from sources other than 

the defendants who committed violations of the equal employment 

laws.
It is of some moment, perhaps, that the defendants in 

signing the consent decree still vigorously deny that they ever 

practiced discrimination. It ought to be evident that some 

black workers have a desire and a right to talk to lawyers who, 

in at least one reported case, have proved that the United 

States Steel Corporation does have a systemic pattern of discrim­

ination. See, e.g., United States v. United States_Steely

Corporation, 371 F. Supp. 1045 (N.D. Ala. 1973).

"The right to equal protection of the laws in the exercise 

of those freedoms of speech and religion protected by the First 

and Fourteenth Amendments, has a firmer foundation than the 

whims or personal opinions of a local governing body," Niemotko 

v. Maryland, 340 U.S. 268, 272 (1951); Thornhill v. Alabama, 310

U.S. 88, 97-98 (1940). The danger is always that "public authority 

with an evil eye and an unequal hand" will make "unjust and 

illegal discriminations between persons in similar circumstances," 

Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886). No government 

power, as Mr. Justice Black stated in a related free speech area, 

can
36



provide by law what matters of public interest 
people whom it allows to assemble on its streets 
may or may not discuss. This seems to me to be 
censorship in a most odious form, unconstitu­
tional under the First and Fourteenth Amendments.
And to deny this appellant and his group use of 
the streets because of their views against racial 
discrimination, while allowing other groups to 
use the streets to voice opinions on other sub­
jects, also amounts to an invidious discrimination 
forbidden by the equal protection clause of the 
Fourteenth Amendment.

Cox v. Louisiana, 379 U.S. 559, 581 (1965) (concurring opinion). 

See also, Cox v. Louisiana, 379 U.S. d36, 557 (1965)..

The unconstitutionality of the ban on meeting with the 

N.A.A.C.P. is not alleviated by the court's ruling that a meet­

ing might be permitted at some unspecified future "appropriate" 

time. We think black steelworkers have a right to decide when 

they want to learn of the status of a case affecting their rights, 

and when they want to begin to organize to oppose the company s 

efforts. They cannot be limited in these free speech and free 

association choices by any notions of the defendants that it is 

not yet necessary for them to know of the consent decree because 

the defendants are not yet ready to tender back pay to black 

workers.

37



II.

Local Rule 34(d) Is Unconstitutional On Its 
Face And As Applied In This Civil Rights Case

At issue is a rule of court requiring that no communication 

concerning the class action be made in any way by any party or 

counsel with any potential or actual class member, until such 

time as the court shall order. We submit that the rule is a 

classic instance of a provision that "casts its net across a 

broad range of associational activities" and "contains the fatal 

defect of overbreadth," United States v. Roble, 389 U.S. 258, 

265-66 (1967). The district court should not have relied on it 

for this or any case.

The Constitutionally-Required Standard

The Supreme Court has emphatically declared that courts 

should show no deference to regulations impinging on First Amend­

ment freedoms. It has become axiomatic that, precision of 

regulation must be the touchstone in an area so closely touching 

our most precious freedoms," N.A.A.C.P. v. Button, supra, 371 

U.S. at 438. The need for such an analytical perspective is 

obvious:
Our decision today simply recognizes that when 
legislative concerns are expressed in a statute 
which imposes a substantial burden on protected

38



First Amendment activities, Congress must 
achieve its goal by means which have a less 
drastic impact on the continued vitality of 
First Amendment freedoms. Shelton v. Tucker,
. ..; cf. United States v. Brown, 381 U.S.
437 ... (1965). The Constitution and the
basic position of First Amendment rights in 
our democratic fabric demand nothing less.
United States v. Roble, supra, 389 U.S. at 
267-78.

See also, e.g., Aptheker v. Secretary of State, 378 U.S. 500, 

508 (1964); Note, The First Amendment Overbreadth Doctrine, 83 

Harv. L. Rev. 844 (1970).

Moreover, the Supreme Court has largely formulated the 

standards courts should apply when scrutinizing overbroad 

regulations of "collective activity undertaken to obtain mean­

ingful access to the courts" in the line of cases running from 

N.A..A.C.P. v. Button through United Transportation Union. See 

supra at 30-31. First, "solicitation" is not a talisman that 

makes First Amendment freedoms vanish:

We meet at the outset the contention that 
"solicitation" is wholly outside the area 
of freedoms protected by the First Amendment.
To this contention there are two answers.
The first is that a state cannot foreclose 
the exercise of constitutional rights by 
mere labels. The second is that abstract 
discussion is not the only species of com­
munication which the Constitution protects; 
the First Amendment also protects vigorous 
advocacy, certainly of lawful ends, against 
governmental intrusion. Thomas v. Collins,
323 U.S. 516, 537 ...; Herndon v. Lowry, 301 
U.S. 242, 259-264 ... Cf. Cantwell v.
Connecticut, 310 U.S. 296 ...; Stromberg v. 
California, 283 U.S. 359 ...; Terminiello v.

39



Chicago, 337 U.S. 1 NAACP v. Button,
supra, 371 U.S. at 429.

In short, government "may not, under the guise of prohibiting

professional misconduct, ignore constitutional rights," N.A.A_.C .P_._

v. Button, supra, 371 U.S. at 439. See also, Brotherhood of.

Railroad Trainmen, supra, 377 U.S. at 6. Second, courts must

look to the actual impact of governmental regulation on First

Amendment freedoms notwithstanding that the subject of the

regulation is within the ambit of legislative competence:

The First Amendment would, however, be a 
hollow promise if it left government free 
to destroy or evade its guarantees by indi 
rect restraints so long as no law is passed 
that prohibits free speech, press, petition
,  . V I . .  ^  r- .■. t»t^  V i a v o  • H V i o r ' i ^ - F o T f3X U.kJ *-* J  *~W w • • • — * —   
repeatedly held that laws which actually 
effect the exercise of these vital rights 
cannot be sustained merely because they 
were enacted for the purpose of dealing 
with some evil within the state's legisla­
tive competence, or even because the laws 
do in fact provide helpful means of deal­
ing with such an evil. United Mine V7orkers, 
supra, 389 U.S. at 222.

Third, there is a presumption in the area of First Amendment 

activity that "[b]road prophylactic rules ... are suspect.

See, e.g., Near v. Minnesota, 283 U.S. 697 ...? Shelton v.

Tucker, 364 U.S. 479 ...; Louisiana ex rel. Gremillion v.

National Asso. for Advancement of Colored People, 366 U.S.

293 ... Cf. Schneider v. State, 308 U.S. 147, 162 ..." N . A . A . C . P...

- 40



V .  Button, supra. 371 U.S. at 938. Fourth, government must 

advance a "substantial regulatory interest, in the form of 

substantial evils flowing from petitioner's activities, which 

can justify the broad prohibition which it has imposed," 

N.A.A.C.P. v. Button, supra, 371 U.S. at 44. See also, Brother­

hood of Railroad. Trainmen, supra, 377 U.S. at 7-8. Fifth, in 

the area of First Amendment rights courts will hesitate to

draw lines to save overbroad regulations:

If the line drawn by the decree between the 
permitted and prohibited activities of the 
NAACP, its members, and lawyers is an 
"ambiguous one, we will not presume that 
the statute curtails constitutionally pro­
tected activity as little as possible.
t i    j _________3  _  „  j  . r  ^  -! V\ 1  «  o f  a f u f n r t r  i r a n n p -1' C/i. o V4l-» —•- — — - - - - -  — — J .

ness are strict in the area of free expression. 
[References omitted]. N.A.A.C.P. v. Button, 
supra, 371 U.S. at 429.

Sixth, vigorous litigation against racial discrimination or in

the public interest generally is subject to a realistic appraisal,

sensitive to its unique character in our jurisprudence:

Resort to the courts to seek vindication of 
constitutional rights is a different matter 
from the oppressive, malicious, or avaricious 
use of the legal process for purely personal 
gain. Lawsuits attacking racial discrimination, 
at least in Virginia, are neither very profit­
able nor very popular. They are not an object 
of general competition among Virginia lawyers; 
the problem is rather one of an apparent dearth 
of lawyers who are willing to undertake such 
litigation. ... We realize that an NAACP lawyer

_ 41



must derive personal satisfaction from partici­
pation in litigation on behalf of Negro rights, 
else he would hardly be inclined to participate 
at the risk of financial sacrifice. But this 
would not seem to be the kind of interest or 
motive which induces criminal conduct. N.A.A.C.P. 
v. Button, supra, 371 U.S. at 443-44.

See also, Brotherhood of Railroad Trainmen, supra, 377 U.S. at 7.

It is these standards that this Court must apply to the

face of Local Rule 34(d). To do otherwise is to forsake the

special place the Supreme Court has recognized for the exercise

of First Amendment freedoms to advance judicial resolution of

great social controversies and the rule of law.

The Title VII Action Context

One other preliminary matter deserves mention: This

Court cannot but be struck that this overbreadth issue arises 

in the specific factual context of a class action suit author­

ized by Title VII of the Civil Rights Act of 1964. A less 

likely setting for the district court to blind itself to First 

Amendment command can hardly be conceived of. For to do so 

is also to blind oneself to high public policy favoring 

vigorous prosecution of employment discrimination actions.

Clearly, fear of ambulance-chasing and kindred concerns are, 

at the very least, irrelevant. There has never been the slightest 

suggestion that plaintiffs' counsel have solicited any clients 

in this case.

42



The American Bar Association has long held that the 

ordinary rules against solicitation are to be relaxed when 

litigation is "wholesome and beneficial," ABA COMM. ON PROFES­

SIONAL ETHICS, OPINIONS, No. 148, at 311 (1935); and the Con­

gress of the United States has determined to encourage 1964 

Civil Rights Act litigation in general, and Title VII litigation 

in particular, by authorizing awards of attorney's fees for 

that very purpose. See Newman v. Piggie Parh Enterprises, Inc., 

390 U.S. 400, 401 (1968); Schaeffer v. San Diego Yellow Cabs, 

Inc., 462 F. 2d 1002, 1008 (9th Cir. 1972); Robinson v_._

Lorillard Corp., 444 F.2d 791, 804 (4th Cir.), cert, dismissed,
a r\ a r t  r* i  r\ r\t? /I m i  \ . t Kfi 1 1 o /l. T? , R R  (I V V J  \ / J- / / " rn   — «• ---- 1~- r   “   *

Cir. 1971); Johnson v. Georgia Highway Egress, 488 F.2d 714 

(5th Cir. 1974).
A plaintiff's attorney who handles a class action Title 

VII case with no other arrangement for, or prospect of, finan­

cial remuneration than court-ordered attorney's fees, would 

therefore plainly be permitted to solicit additional named 

plaintiffs under the familiar principles of, e.g., ABA COMM. ON 

PROFESSIONAL ETHICS, OPINIONS, No. 148 (1935); ABA COMM. ON

PROFESSIONAL ETHICS, INFORMAL OPINIONS, No. 992 (1967) ; ABA 

COMM. ON PROFESSIONAL ETHICS, INFORMAL OPINIONS, No. 888 (1965);

43



ABA COMM. ON PROFESSIONAL ETHICS, INFORMAL OPINIONS, No. 786

(1964); see also, D.C. BAR ASSN. COMM. ON LEGAL ETHICS AND 

GRIEVANCE, REPORT (January 26, 1971), holding that advertise­

ments giving legal advice and offering free legal services 

were not improper solicitation; c_f. N.A.A.C.P. v. Patty, 159 

F. Supp. 503, 522 (E.D. Va. 1958); In re Ades, 6 F. Supp. 467

(D. Md. 1934), and could not constitutionally be restriiined 

from doing so under the line of First Amendment cases running 

from N.A.A.C.P. v. Button, 371 U.S. 415 (1963), to United 

Transportation Union v. State Bar of Michigan, 401 U.S. 576 

(1971). This is particularly so inasmuch as it is the court
„ J L  * r  r  J  1  7  ^  J — • -  — 1  7  -  — •! m  a  w *V> /*, v *  V> *  r> s iV v  r« 4 * T5 n  4 -  ■? 3  1
W l l x t . i l  W X X X  V - V t u t u u x x j  '-*•'— W**s^*. •>•**«* — — —

a fee the attorney should receive at the conclusion of the

litigation, and inasmuch as the amount of that fee would not. 2/oridinarily be affected by the number of named plaintiffs.

Moreover, plaintiffs in Title VII litigation often serve 

as class representatives, but always as "private attorneys 

general" who have donned the mantle of the sovereign. See 

Newman v. Piggie Park, supra, 390 U.S. at 401-02; Huff v. Cass Co.,

3/ There is no claim that plaintiffs' counsel have done any 
soliciting of clients. Counsel can obviously have no monetary 
interest in increasing the number of named plaintiffs in Title 
VII cases where fees are not paid by the client but are taxed 
as costs to the defendants. See 42 U.S.C.A. § 2000e-5(k);

44



485 F.2d 710 (5th Cir. 1973) (en banc); Jenkins v. United Gas

Corp., 400 F .2d 28, 32-33 (5th Cir. 1968). Because the broad 

terms of Local Rule 34(d) apply to Title VII class actions, 

not to speak of other "lawsuits authorized by Congress to 

effectuate a basic public interest," Brotherhood of Railroad 

Trainmen, supra, 377 U.S. at 7, as much as any other, the rule 

is perforce unconstitutionally overboard. United States v. 

Roble, supra, 389 U.S. at 265-66. Although a mandamus should 

issue on this showing alone, Sanders v. Russell, supra, never­

theless we deomonstrate in the next section that Local Rule 

34(d) is unconstitutionally overbroad irrespective of the 

specific context in which the overbreadth issue arises.

3/ Continued
Malone v. North American Rockwell Corp., 457 F.2d 779, 781 (9th 
Cir. 1972). The amount of fees depends only in part on the 
amount of any award secured (Clark v. American Marine Corp., 320 
F. Supp. 709, 710, 712 (E.D. La. 1970), aff‘d, 437 F.2d 959 
(5th Cir. 1971), Johnson v. Georgia Highway Express, 488 F.2d 714 
(5th Cir. 1974), and the amount of the award is ordinarily not 
affected by the number of clients retaining the particular 
attorney, since in Title VII actions the class representative 
may obtain back pay for non-party class members. Rob in .son v. 
Lorillard Corp., 444 F.2d 791, 802, n. 14 (4th Cir.), cert. 
denied, 404 U.S. 1006 (1971).

Even in a fee generating case, in a commercial rather than 
a civil rights context, it has been noted that the lack of any 
monetary interest of an attorney in addition to named plaintiffs 
largely eliminates the ethical objections to his soliciting them. 
Halverson v. Convenient Food Mart, Inc., 458 F.2d 927, 931 
(7th Cir. 1972).

45



Application of the Constitutionally-Required 
Standard to Local Rule 34(d)

Local Rule 34 (d) is an absolute prior restraint on any 

communication, however innocent or unrelated to the class
i/action, between the parties and potential or actual class 

members, not formally parties to the action. Any communication 

is at the absolute discretion of the district court. There is 

no doubt that such restraint is in violation of the specific 

First Amendment overbreadth standards set forth by the Supreme 

Court for regulation of collective resort to the courts. 

Moreover, we need not reiterate our previous discussion of 

failure to pass First Amendment muster as a prior restraint. 

Supra at 26, et seg.

As to overbreadth, "solicitation" is not a talisman that 

makes First Amendment freedoms vanish, supra at 39-40. While 

it is doubtlessly within the p o w e r of the judges of the Western 

District to regulate some abuses, this, too, is no impediment

4/ That the district court has limited any communication between 
plaintiffs' counsel and black Homestead steelworkers and the 
objection raised by a steel company lawyer to the presence of 
an observer at a consent-decree-mandated meeting as "communication 
by conduct" (App. 277dd - 277ee) make clear that the ostensible
limitation in scope of Local Rule 34(d) to communication "concerning 
such actions" is no limitation at all. It is, of course, not the 
office of this Court to narrowly construe such ambiguous language 
to save the rule when First Amendment rights are at stake.
N.A.A.C.P. v. Button, supra, 371 U.S. at 429.

46



to judicial scrutiny of actual impact on First Amendment 

freedoms, supra at 40. As this rule is nothing if not a "broad 

prophylactic rule" it is suspect as impingement on First 

Amendment activity, supra at 40-41. The rule, as such, states 

no reasons advancing a specific "substantial regulatory interest" 

concerning judicial administration nor is one inferable, supra 

at 41. Even if such an interest is assumed arguendo to exist, 

there is no indication, much less demonstration, that this 

obliterating rule is a "less drastic alternative" to, for 

instance, a specific rule tailored to a known abuse or a case 

by case adjudication under authority conferred by Rule 23(d)

Fed. R. Civ. P., supra at 38-39. It is impossible to imagine 

where this Court could draw lines to save this rule, so com­

prehensive is its scope, supra at 41. There is no chance that 

this Court could uphold this rule consistent with a realistic 

appraisal of the irrelevance of considerations of ambulance­

chasing to civil rights advocacy, supra at 41-42.

This Court may also take notice that regulation of com­

munication between class representatives or counsel and potential 

or actual members of a class is novel and its constitutionality 

untested. Local Rule 34(d) was itself adopted by the Western 

District only in January, 1973, and became effective on April 

15, 1973. No other case appears to have arisen concerning

47



the Rule. No other district in this Circuit has such a rule. 

And certainly this Court has not previously been confronted 

with the Rule.

Research reveals that only five other federal districts
§/

have any rule regulating communication in class actions.

One of the rules only forbids solicitation by formal parties

reguesting a class member to opt out of a Rule 23 (b) (3) class
2/ . . .action. In contrast, Local Rule 34 (d) is a blanket prohxbr-

tion of communication unrelated to a specific evil. The four

others partially codify Suggested Local Rule No. 7 in the
8/

Manual for Complex Litigation (1973). Suggested Local Rule
„  •-» 2  2  v  J  ^  v  J  ^1 -C  r *  "1 A  1  l l  n  4  v\/^ i  a  1

• / X O  X I I  u.c*.jtm a k  u u i .  x  v X * .  v a i  *. x  v  » w * . * . — * ^  -      * — —

Abuse of Class Actions" in the Manual. All the local rules 

based on Suggested Local No. 7 specifically enumerate

5/

5/ Cf. an order entered in DiCostanzo v. Chrysler Corp.,
15 Fed. R. Serv.2d 1248 (E.D. Pa. 1972).

6/ 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.

7/ Local Rule 20, D. Maryland.

8/ See, e.g., Local 734 Bakery Drivers Pension Fund Trust v. 
Continental Illinois Nat'l Bank and Trust Co., 57 F.R.D. 1,
2 (N.D. 111. 1972).

48



kinds of communication the rule is supposed to cover. While 

not exhaustive, such an enumeration presumably provides guidance 

for district courts and a statement of reasons for the rule. 

Local Rule 34(d), of course, contains no such enumeration. All 

the rules derived from Suggested Local Rule No. 7 contain the 

express proviso, "All other ethical, legal and equitable obliga­

tions are unaffected by this rule." No such escape clause is

present in Local Rule 34 (d). All the Suggested Local Rule No. 7
10/

derivations, save one, contain two express exceptions to the
1-1/

prohibition of communication. Local Rule 34(d) contains no

3/

<v ii mV. -P /-N 2_ c l  c l  ̂  Vvivf*

are not limited to, (a) solicitation directly or indirectly of 
legal representation of potential and actual class members who 
are not formal parties to the class action; (b) solicitation 
of fees and expenses and agreements to pay fees and expenses, 
from potential and actual class members who are not formal 
parties to the class action; (c) solication by formal parties 
to the class action of requests by class members to opt out 
in class actions under subparagraph (b)(3) of Rule 23, F.R.
Civ. P.; and (d) communications from counsel or a party which 
may tend to misrepresent the status, purposes and effects of 
the action, and actual or potential Court orders therein, which 
may create impressions tending, without cause, to reflect 
adversely on any party, any counsel, the Court, or the administra­
tion of justice. The obligations and prohibitions of this 
rule are not exclusive. . ."

10/ Local Rule 6, S.D. Texas.

11/ "This rule does not forbid (1) communications between an 
attorney and his client or a prospective client, who has on 
the initiative of the client or prospective client consulted 
with, employed or proposed to employ the attorney; or (2) com­
munications occurring in the regular course of business or in

49



exceptions whatsoever. It is quite clear that Rule 34(b) is

uniquely restrictive, even among the small number of related
12/

federal district rules. Moreover, under the N.A.A.C.P. v.

11/ Continued

the performance of the duties of a public office or agency 
(such as the Attorney General) which do not have the effect 
of soliciting representation by counsel or misrepresenting 
the status, purpose or effect of the action and orders 
therein. (Emphasis added.)

12/ It is instructive to note § 1.41 contemplates that pre­
venting potential abuse of class actions shall not thwart 
"normal and ethically proper processing of a case" lest due 
process be infringed:

The recommended preventive action, whether 
by local rule or order, is not intended to be 
either a permanent or an absolute prohibition 
of contact v/ith actual or potential class mem­
bers. Promptly after the entry of the recom­
mended order, or the applicable date of the local 
rule in a case, and at all times thereafter, the 
court should, upon request, schedule a hearing 
at which time application for relaxation of the 
order and proposed communications with class 
members may be presented to the court. Since 
the recommended 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 communi­
cations 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 wit­
nesses may well constitute a denial of due 
process.

There will normally be some need for 
counsel to communicate with class members

50



Button standard Suggested Local Rule No. 7 is unconstitutional 

as well.

12/ Continued
on such routine matters as answering factual 
inquiries and developing factual matters in 
preparation for the class action determina­
tion as well as for trial. In order that 
there might be some minimal judicial control 
of these communications, it is suggested 
that ex parte leave may be given by the 
court. If requesting counsel is at a dis­
tance 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. See infra at 57, ejt seq.

51



III.

The Orders of the District Court Restricting 
Communications with Individual Class Members 
Are Unconstitutional.

The orders of the district court which restrict communica­

tions between plaintiffs' counsel and individual class members 

violate constitutional protections of free speech and associa­

tion, and the right of counsel, including particularly the 

right to privacy of association. The requirement of prior 

disclosure of the fact of communication by affidavit in the 

case of class members who seek out the lawyers prevent such 

class members from consulting or aiding the lawyers in private
_ ---------------------------------- ~ ~  a.  j  j l u  — *i _  j —, j .  :  i —  .—  —. j—  a_ i—  4  ____ t  

c a a  ji v a  U I U I V C O  u w o p u i u u x u n  n  j .  u  1 1  j j x u  x n  u  x  j _  r  o  u i t w m i  o w  j. av_; a .  ± . —

ers. The requirement for prior disclosure in the case of every 

individual black worker whom counsel wish to contact in an 

effort to learn facts carries with it a similar infringement 

of private communication, for the order requires that before 

talking with workers to get evidence, counsel must first show 

what they expect to learn from each worker.

Such prior disclosure procedures cannot but have detrimental 

effect on any meaningful exchange between counsel and a black 

steelworker, whether he be a potential client or informant.

Little imagination is required to perceive that a potential 

client or informant would be loath to approach counsel by running

52



I

such a gauntlet. Even the bare fear of reprisal would imperil 

association:

It is hardly a novel perception that compelled 
disclosure of affiliation with groups engaged 
in advocacy may constitute [an] effective ... 
restraint on freedom of association ... This 
Court has recognized the vital relationship 
between freedom to associate and privacy in 
one's associations. ... Inviolability of pri­
vacy in group association, may in many circum­
stances be indispensable to preservation of 
freedom of association, particularly where a 
group espouses dissident beliefs. NAACP v.
Alabama ex rel. John Patterson, 357 U.S. 449,
462 (1958).

The rule is that, "Freedom [of speech, press and association] 

are protected not only against heavy handed frontal attack, but 

also from being stifled by more subtle governmental interfer­

ence, " Bates v. Little Rock. 361 U.S. 516, 523 (I960); ShS-LfcOH 

v. Tucker, 364 U.S. 479 (1960); Gibson v. Florida Legislative 

Investigative Committee, 372 U.S. 539 (1963). Moreover, Congress

has specifically expressed its concern for retaliation against11/
employees who complain of employment discrimination. Communi­

cation between counsel and black steelworkers with such a

13/ Congress had not only made it unlawful for employers to 
retaliate against workers who invoke Title VII (42 U.S.C. 2000e- 
3(a)), it has also amended the statute to shield workers from 
retaliation by enabling others to file charges on their behalf.
42 U.S.C. 2000e-5 (b). See Legislative History of the Equal 
Employment Opportunity Act of 1972, p. 1845 (H.R. 1746, P.L.
92-261) (Government Printing Office 1972), wherein the Conference 
Committee Report described the purpose to "enable aggrieved per­
sons to have charges processed under circumstances where they are 
unwilling to come forward publicly for fear of economic or physical 
reprisals." Cf. Pettway v. American Cast Iron Pipe Co., 411 F.2d 
998 (5th Cir. 1969).

53



condition attached is tantamount to denial of any right of 

association. The district court orders deny the vital "breath­

ing space" which First Amendment freedoms need to survive.

Button, supra, 371 U.S. at 433. There is no compelling interest 

of the court which requires this invasion of the right of private 

consultation between lawyer and client, or lawyer and potential 

witness or informant.

In addition to violating free speech rights, the orders 

impose an unacceptable restriction on the right of access to 

counsel on the one hand, and a crippling interference with the 

ability of counsel to present a case on the other hand.

Surely black steelworkers do have a right to counsel of 

their own choice to protect their important employment rights. 

When black steelworkers seek to consult Mr. Marcus and his asso­

ciates they seek to exercise "the right of individuals and the 

public to be fairly represented in lawsuits authorized by Con­

gress to effectuate a basic public interest." Brotherhood of 

R.- Trainmen v. Virginia. 377 U.S. 1, 7 (1964). And as that 

opinion went on to state, "laymen cannot be expected to know 

how to protect their rights when dealing 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). In 

Powell v. Alabama, 287 U.S. 45, 69 (1932), the Court said:

54



If in any case, civil or criminal, a state 
or federal court were arbitrarily to refuse to 
hear a party by counsel, employed by and 
appearing for him, it reasonably may not be 
doubted that such a refusal would be a denial 
of a hearing, and therefore of due process in 
the constitutional sense.

In employee-employer relations an interference with the 

employee's right to consult an attorney without the fact of 

consultation being known to the employer may destroy the right 

to consult a lawyer at all. Certainly, the affidavit procedure 

which was imposed by the court belov; in an extemporaneous 

fashion in response to the company's request substantially bur­

dens the right of black steelworkers to access to counsel. And 

plainly in the context of hotly contested litigation the steel 

company's reason for requesting individual identification of 

every black steelworker who talks to Mr. Marcus and his col­

leagues is the perceived advantage to be obtained in the litigation.

The other procedure imposed by the court below in September 

1973 and reaffirmed by the July 19 order requires plaintiffs 

to identify in advance every worker they seek to communicate 

with and set forth in advance what facts they expect to learn 

from the worker. This procedure makes it manifestly impossible 

for plaintiffs' counsel to conduct general inquiries in the hope 

of learning facts about which they have no previous knowledge.

And, of course, in Title VII litigation, as in other fields, the 

unexpected facts may often make a difference in the understanding

55



of a case. Plaintiffs' counsel are also placed at an unfair
j

disadvantage because they are deprived of the opportunity to 

canvass large groups of employees for helpful factual data, 

and the help of employees too timid to aid plaintiffs publicly 

and risk the wrath of supervisors or trade-unionists hostile 

to the plaintiffs' request for relief. The order even 

deprives plaintiffs' counsel of a chance to get anonymous tips 

from black workers about company practices which might be 

developed into relevant evidence. It deprives counsel of any 

opportunity to learn the attitudes of class members about pro­

posed forms of relief.
Plaintiffs submit that rather than restricting the contact 

of lawyers in Title VII class actions with class members, 

justice and the policies of Title VII would be better served 

by rules of court requiring lawyers to have sufficient contact 

with class members to adequately represent their viewpoint.

The failure to communicate makes it less likely that counsel 

can fully and adequately represent class interests.

56



IV.

The Order Staying All Proceedings Violates 
Plaintiffs' Rights to Due Process and Their 
Rights Under Title VII of the Civil Rights 
Act of 1964.

The decision below bringing the Rodgers case to a halt for 

at least six months because of the Alabama consent decrees 

denies plaintiffs and their class due process of law. They sub­

stantially impair their rights on the basis of the government 

consent decrees although plaintiffs were not parties to the 

consent decrees which were entered without affording them notice 

or a hearing. Hansberry v. Lee, 311 U.S. 32 (1940). They also 

violate plaintiffs' rights under Title VII to maintain their 

litigation unimpaired by any suits brought by the Equal Employ­

ment Opportunity Commission. Williamson v. Bethlehem_Steel—Co_. ,

468 F.2d 1201 (2nd Cir. 1972). The following pages demonstrate 

hov? plaintiffs are being "whipsawed" by conflicting rulings in 

the Alabama and Pennsylvania cases.
14/

Judge Teitelbaum made a decion on June 27 to put the 

case "in limbd’ until at least January 15, 1975. This halts

JL4/ The differing recollections between plaintiffs counsel 
and the judge about whether this ruling had been indicated 
earlier are not material, for it is clear that June 27 was the 
first time such a ruling was stated on the record. Whatever 
the prior comments were, they were "off the record comments 
at the April 24 conference which do not appear in the transcript.

57



all discovery, including plaintiffs' computer analysis of 

company records, and prevents plaintiffs from getting the case 

ready for trial. It also continues the court's refusal to 

rule on plaintiffs' long standing and repeated requests for a 

determination that the case can be maintained as a class 

action.
The rationale for the decision to halt all activity in 

the Rodgers case is the district judge's conclusion that the 

Alabama consent decree might make the Rodgers case moot. The 

colloquy on June 27:
THE COURT: We were going to hold everything

in limbo until January 15th to find out what was 
going to happen in the south, and then we would 
see what we were going to do after we found out 
where we were.

MR. MARCUS: I'm sorry if I misunderstood.
We would object to having to wait until January 
15th.

THE COURT: That's what I said, and that's
what I meant, and that's what I still mean.
It seems to me to go forward in two different 
areas when it might be moot as a result of what 
might happen as a result of a consent decree 
is an unusual expenditure of money and a waste 
of your time and mine. (App. 175a)

Later in the conference, there was a further relevant exchange

MR. GOLDSTEIN: For clarification, is the
Court's sole reason for not ruling on the dis­
covery motion there is this pending consent 
decree in Alabama and the Court wants to see 
the results from that consent decree before 
ruling on further discovery on this matter?

58



THE COURT: You asked if that is the sole
reason. That is a reason. Not the sole reason.

MR. SCHEINHOLTZ: There are other reasons
which I haven't gone into.

MR. MARCUS: We feel that the results of the
entry of those consent decrees may not be known 
by January 15th in which case

THE COURT: V7e will face it then. (App. 188a)

At the conference on July 19, Judge Teitelbaum declined 

to rule on plaintiffs' objections to letters being sent by the 

steel company to plaintiffs' class in the R o d g e r s  case, and 

said he would take the same view of future similar matters, 

because they were controlled by Judge Pointer's case:

THE COURT: I'm not deferring [sic, "refer­
ring"?] them. That would be presumptuous.^ It 
is his case, and whatever he uoet. with it is 
all right with me even though it has an indirect 
effect on the case before this Court. I con­
sider that to be the controlling case, not the 
one here in Pittsburgh.

MR. SCHNAPPER: As to any disagreements we
may have as to the notice or requests, that will 
be taken up with Judge Pointer.

THE COURT: Exactly. His case controls
this situation. I don't want to do anything in 
any way to affect it. All I'm suggesting iŝ  
that we are not talking about the merits. I'm 
saying this is more proper for Judge Pointer.

MR. MARCUS: I assume, also, about the
tender of back pay, there is no sense bothering 
Your Honor with that issue when you ruled that 
everything would be deferred to Judge Pointer, 
and that would be, also.

THE COURT: It may control this case, and
I don't intend to interfere a bit. I defer to 
him. I don't want to do anything. (App. 267a-268a)

- 59 -

r r -



When plaintiffs first learned of the consent decrees they 

perceived the danger they posed to the pending Rodgers case. 

Accordingly, plaintiffs sought limited intervention in the 

Alabama litigation for the purpose of protecting their rights 

in the Rodgers litigation. They argued before Judge Pointer 

■̂ hat the consent decrees were designed and intended to impair 

their rights and were going to be used by the defendants in 

efforts to circumvent Williamson, supra. They argued that the 

consent decrees were unlawful because they were entered on the 

same day suit was filed without notice or hearing for plaintiffs 

in violation of their Due Process rights and the doctrine of 

Hansberry, supra. Judge Pointer's opinion of June 7, 1974 (App. 

356a-364a) responded to this argument by ruling that the consent 

decree "between the government and the defendants does not pur­

port to bind any individual employee or to prevent the institution 

or maintenance of private litigation" (App. 357a). The court 

carefully noted that intervention was for a limited purpose and 

that "... the court does not consider that such intervenors, or 

any class which they may represent, are at present bound, as a 

matter of res judicata or collateral estoppel, to the terms of 

the consent decrees themselves" (App. 359a). Judge Pointer 

acknowledged the danger that the consent decrees could improperly 

affect litigants such as Rodgers and Turner, but said that future

60



orders of his court and other courts would prevent misuse of

the consent decrees. He wrote:
The court does recognize that these decrees 

may, as a practical matter, impede, if not 
impair, some interests of private litigants.
Indeed, it must be assumed that concessions 
during settlement negotiations were motivated 
in part by the desire of the parties to avoid, 
by anticipatory corrections, future litigation 
and to provide more expeditious solutions even 
in matters already in the judicial processes.
Justice delayed may, it is said, be justice 
denied. Moreover, it must be kept in mind that 
resolution in this forum of issues between the 
government and the defendants does not pre­
clude additional-— or even inconsistent— relief 
in favor of private parties in other litiga­
tion. As stressed by Congress in the passage 
of Title VII and its amendments, settlement 
offers the principal hope for rapid correction 
of the ills of employment discrimination,ppre- 
qprvi nr r . however— as here— the right to liti­
gate where the persons aggrieved are not parties 
to the conciliation agreement and believe the 
settlement to be unsatisfactory.

Some of the wording of the consent decrees 
may on its face improperly affect the maintenance 
of private actions. For example, the decrees pro­
vide for mailing of back-pay notices even to those 
involved in pending litigation as named plaintiffs 
or as determined or putative class members. In 
view of the court's retained powers and in view 
of the presence of the parties to this litigation 
before other forums, such problems, as they are 
identified, can be satisfactorily resolved, and no 
doubt there will be a need from time to time for 
liaison and co-ordination between this court and 
other forums. ... (App. 361a)

Judge Pointer's opinion of July 17, 1974, denying a stay of parts 

of the consent decrees pending appeal, reiterates that:

61



... this court does not consider that the 
consent decrees entered herein in any way bind 
either the private plaintiffs involved in 
other pending litigation or the courts in which 
such litigation is pending. This court does 
not assume that there will be a lack of full 
and fair consideration by other courts of the 
issues before the, or a failure to grant such 
relief as is warranted. (App. 367a-368a)

The opinion goes on to assert that back pay releases will

not halt other pending cases, and to assure that liaison among

the courts will deal with "future complications":

Movants, while contending that the back-pay 
releases are legally invalid, argue that contin­
uing with the Decree-created timetables respect­
ing back-pay will have various adverse effects 
upon other pending litigation. Assuming, 
arguendo, that the proposed back-pay releases 
should be declared invalid by the Fifth Circuit, 
there is no suggestion that all minority steel­
workers will sign such releases or that there 
may be a lack of class representatives to pursue 
pending or future litigation. Additionally, 
while some class members may choose to execute 
a back-pay release in exchange for a tender of 
immediate back-pay, such would not prevent con­
tinued litigation by the existing class repre­
sentatives. While the anticipated mailings 
regarding back-pay may present some complicating 
factors respecting other pending cases, such 
was fully considered by this court in the opinion 
of June 7, with the conclusion that liaison and 
coordination between this court and other forums 
can, as a practical matter, resolve any future 
complications. ... (App. 369a-370a)

This expectation of coordination among the courts has been 

disappointed as far as the Rodgers case is concerned. Judge 

Pointer's July 23 statement (reported to Judge Teitelbaum) shows 

that delay of Rodgers is not at his request:

62



THE COURT: I would say this, that proceeding
with discovery in that litigation would not, in 
my judgment, interfere with the implementation of 
the consent decree. '

I think it's purely a matter for discretion 
by the Court there and I can understand how a 
ruling either way could be made in the exercise 
of that discretion.

MR. MARCUS: Does that apply also to class
certification?

THE COURT: Yes, also applies to class certi­
fication. (App. 519a-520a)

Judge Teitelbaum's position that the Rodgers case may become 

moot because of the consent decrees is in error for a number of 

reasons, including those mentioned by Judge Pointer in his opin­

ions quoted above.

First, Congress quite deliberately preserved the right of 

aggrieved workers to maintain their suit under Title VII entirely 

independent of any suits brought by the E.E.O.C. and rejected 

efforts to abolish the private remedy. The Second Circuit so 

held in Williamson v. Bethlehem Steel Corp., 468 F.2d 1201, 

1203-1204 (2nd Cir. 1972), a leading case protecting private 

Title VII claims from being preempted by government lawsuits:

For purposes of res judicata or collateral 
estoppel, the private citizens in this case 
are not bound by the Attorney General's action 
in the former case since they neither were 
parties to it, NLRB v. Lannom Manufacturing 
Co., 226 F.2d 194, 199 (6th Cir. 1955), rev'd 
on other grounds sub nom. Amalgamated Meat 
Cutters v. NLRB, 352 U.S. 153, 77 S.Ct. 159,
1 L.Ed.2d 207 (1956), nor have interests such 
as to be in privity with the Attorney General.

63



Cf. Trbovich v. United Mine Workers, 404 U.S.
528, 538-39, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972) 
(intervention by union members permitted in 
Labor-Management Reporting and Disclosure Act 
litigation brought by the Secretary of Labor). 
Therefore, the judgment in the previous case 
does not have conclusive force here. See 
Restatement of Judgments § 93 et seq. (1942);
IB J. Moore, Federal Practice 51 0.411 [1] (2d
ed. 1965). See also Hartford Accident & Indemnity
Co. v. Jasper, 144 F.2d 266, 267 (9th Cir. 1944).

Under Title VII since its inception, more­
over, the individual has played a significant 
role in its enforcement. Jenkins v.- United 
Gas Corp., 400 F.2d 28, 32 (5th Cir. 1968).
This is equally true after the amendment of 
Title VII by the Equal Employment Opportunity 
Act of 1972, 1972 U.S.Code Cong. & Admin. News, 
p. 814 et seq. While the 1972 amendments 
authorize the Equal Employment Opportunity Com­
mission to bring a Title VII suit in the name 
of the Government, individuals party to Commis­
sion conciliation proceedings in the same 
action may intervene in such suits, and in 
those brought by the Attorney General, id.
§ 706(f)(1), 1972 U.S.Code Cong. & Admin. News, 
pp. 817-18, and presumably individuals not 
party to the Commission proceedings may insti­
tute a suit despite any legal action taken by 
the Commission or the Attorney General.

The purpose of permitting the individual 
who has been discriminated against to seek

2. Not insignificantly, in debating the Equal
Employment Opportunity Act, Congress refused 
to make Title VII the exclusive statutory 
basis for private suits against employment 
discrimination and continued to allow suits 
to be brought, for example, under Section 1 
of the Civil Rights Act of 1866, 42 U.S.C.
§ 1981. See 118 Cong. Rec. S1524-26 (daily 
ed. Feb. 9, 1972); id. at S1791-97 (daily 
ed. Feb. 15, 1972).

64



relief where the Government has omitted to do so 
— possibly for reasons such as its lack of know­
ledge, legal strategy, or lack of enforcement 
staff— is plainly to make certain that the indi­
vidual employee is protected.

Second, as Judge Pointer said in his July 17 opinion on 

the stay application, the execution of back pay releases by 

some class members should not prevent continued litigation by 

others to obtain injunctive relief for all (App. 369a). In 

Judge Pointer's court even the steel company's lawyer agreed 

to this proposition at the May 20, 1974, hearing (Tr. 184-185)

MR. MURRAY: * * *

Second, I think it is agreed there is no 
estoppel or res judicata that appears in all 
the briefs. I think all parties are in agree­
ment- T -f-h-inV if
release, he will then be bound by the terms 
of that release.

THE COURT: Would that prevent him as you
envision it from taking advantage of relief 
obtained by some other person that did' not 
sign the release?

MR. MURRAY: You mean if another person
sought and obtained additions in the way of 
systemic relief?

THE COURT: Right.

MR. MURRAY: I think that is a plus he
gets free.

THE COURT: So you say it would not pre­
vent him from taking benefits of such?

MR. MURRAY: I don't think it would. I
think it is just another free option he gets 
by what we have tried to do.

65



Third, the proposed waivers of Title VII rights will be 

invalid and ineffectual as against public policy. The proposed 

waivers under the consent decree are in part prospective and 

thus conflict with the recent holding of the Supreme Court in 

Alexander v. Gardner-Denver Company, 39 L.Ed.2a 147, 160 

(1974):

To begin, we think it clear that there can 
be no prospective waiver of an employee's rights 
under Title VII. * * * Title VII, on the other 
hand, stands on plainly different ground; it con­
cerns not majoritarian processes, but an indi­
vidual's right to equal employment opportunities. 
Title VII's strictures are absolute and repre­
sent a congressional command that each employee 
be free from discriminatory practices. Of neces­
sity, the rights conferred can form no part of 
the collective-bargaining process since waiver 
of these rights would aeteat the paramount con­
gressional purpose behind Title VII. In these 
circumstances, an employee's rights under Title 
VII are not susceptible to prospective waiver.
See Wilko v. Swan, 346 U.S. 427, 98 L.Ed. 168,
74 S.Ct. 182 (1953).

To be sure, in the next paragraph the court said in dicta: 

"... presumably an employee may waive his cause of action under 

Title VII as part of a voluntary settlement. ..." But as the 

court noted, no such issue was present in Alexander. The 

Supreme Court's decision in two Fair Labor Standards Act cases, 

rejecting compromise of statutory back pay claims as against 

public policy, cast great doubt on the validity of attempted 

waivers of Title VII back pay claims. See Schulte v. Gangi,

328 U.S. 108 (1946), and Brooklyn Savings Bank v. O'Neil, 324

- 66



U.S. 697 (1945). The legislative policy against waivers under 

Title VII is even stronger than that under the Fair Labor
iv

Standards Act. It is against public policy to permit 

employers to use their superior economic power in bargaining 

with individual black workers, to avoid fulfillment of the statu 

tory duty to fully compensate victims of discrimination.

Fourth, the fact that the consent decree limits back pay 

awards to a smaller class than that sought to be represented 

by Rodgers and Turner also obviates mootness. Back pay tenders 

will be made only to blacks employed prior to January 1, 1968, 

and either still employed at the time of the consent decree, or 

retired within two years before the decree. This ignores the 

claims of black workers employed prior to 1968, but retired 

between 1968 and 1972. It also ignores claims of workers first 

employed after January 1, 1968, but subjected to the company's 

discriminatory practices. See App. 42a-43a.

The halting of all proceedings in Rodgers despite the 

invalidity of mootness, threatens substantial harm to plain­

tiffs and many members of their class. The refusal to decide

15/ The Fair Labor Standards Act cases cannot be distinguished 
the ground that FLSA pay claims are often— but not always— more 
easily established. Title VII back pay claims are perhaps not 
simple to calculate, but they are not inherently incalculable—  
like pain and suffering claims might be. Title VII back pay 
calculations rest on pay scales, hours worked and similar 
objective factors just as they do in FLSA cases.

on

67



whether the case can be maintained as a class action subjects 

plaintiffs to all the disabilities of the court's rule against 

communication (discussed above), without granting plaintiffs 

any of the advantages of class representation. It is also in 

violation of Title VII's command that the case be expedited.

The stay threatens to destroy the claims of many black 

workers because the steel company plans to tender bacK. pay to 

black steelworkers and obtain releases of their Title VII claims 

in the interim. Black steelworkers will have the option to 

accept or reject the amount offered on a take-it-or-leave-it 

basis within 30 days. They must make the decisions without the 

advice of legal counsel familiar with the case; any access to 

plaintiffs' counsel is limited by the rule and orders restrict­

ing communications. They will be subject to persuasion in 

meetings from which plaintiffs' attorneys are excluded. Even a 

waiver subsequently found invalid will deter future claims by 

making litigation more difficult.

Moreover, workers must make their choice without knowing if 

a litigated class action in which they can contest the offers 

will be available, because of the court's refusal to make a 

class determination. The delay, therefore, increases the sub­

stantial likelihood that black workers, without access to counsel, 

will be overreached and surrender their just claim in return for

68



a back pay offer representing only a fraction of what they might 

obtain when the Rodgers case proceeds to judgment.

The stay has also halted plaintiffs' computerized discovery 

and other investigation. This interferes with the attorneys' 

ability to properly evaluate individual settlement offers and 

give satisfactory advice to those class members who do seek 

advice. Thus, black workers will be denied such basic informa­

tion as a calculation o£ the company's potential back pay 

liability in appraising the settlement offer. They will not even 

know how many cents on the dollar the company is offering them. 

The injustice of the entire arrangement is, of course, compounded 

by the fact that the take-it-or-leave-it offer will remain open 

for only 30 days.

The order of the district court stopping all activity in 

this Title VII case, which was filed in 1971, is in violation 

of an express provision of the statute. 42 U.S.C. §§ 2000e-5 

(f)(4) and (5) provide:

(4) It shall be the duty of the chief judge 
of the district (or in his absence, the acting 
chief judge) in which the case is pending imme­
diately to designate a judge in such district 
to hear and determine the case. In the event 
that no judge in the district is available to 
hear and determine the case, the chief judge 
of the district, or the acting chief judge, as 
the case may be, shall certify this fact to the 
chief judge of the circuit (or in his absence, 
the acting chief judge) who shall then designate 
a district or circuit judge of the circuit to 
hear and determine the case.

69



(5) It shall be the duty of the judge 
designated pursuant to this subsection to assign 
the case for hearing at the earliest practicable 
date and to cause the case to be in every way 
expedited. If such judge has not scheduled the 
case for trial within one hundred and twenty days 
after issue has been joined, that judge may 
appoint a master pursuant to rule 53 of the 
Federal Rules of Civil Procedure.

The delay of the case for six months is exactly opposed to the

statutory goal that the case be tried within six months after

issue is joined. The order of June 27 halting all activity in

the case is inconsistent with the statutory requirement that the

"case ... be in every way expedited."

The refusal to make a class determination also violates

Rule 23(c)(1), Fed. R. Civ. P.:

(1) As soon as practicable after the 
commencement of an action brought as a class 
action, the court shall determine by order 
whether it is to be so maintained. An order 
under this subdivision may be conditional, 
and may be altered or amended before the 
decision on the merits.

The district court's postponement of the class determination 

decision in this three year old case for another half year or 

more is in conflict with Rule 23 as interpreted in Eisen v. 

Carlisle and Jaccruelin, 42 U.S.L. Week 4804, 4810 (May 28, 1974) 

The delay of the case is an abuse of discretion because 

contrary to the explicit commands of Title VII and Rule 23.

This Court should issue peremptory writs to prevent the substan­

tial harm which the delay will inflict upon plaintiffs and their 

class.

70



CONCLUSION

In conclusion, we ask that the Court consider the cumu­

lative unfairness of the several orders complained of as they 

interrelate with one another. It is a regrettable fact that 

by a series of orders the court below has indefinitely 

stopped plaintiffs from extra-judicial statements about the 

case by restricting their free speech, and has stopped them 

from arguing their case in court by putting the case "in limbo.

Wherefore, it is respectfully prayed that the relief 

requested herein be granted.

Respectfully submitted,

WILLIAM T. COLEMAN, JR.
Dilworth, Paxson, Kalish, 
Levy & Coleman 
2600 The Fidelity Building 
123 South Broad Street 
Philadelphia, Pa. 19109

BERNARD D. MARCUS 
Kaufman & Harris 
415 Oliver Building 
Pittsburgh, Pa. 15222

JACK GREENBERG 
JAMES M. NABRIT, III 
MORRIS J. BALLER 
BARRY L. GOLDSTEIN 
DEBORAH M. GREENBERG 
ERIC SCHNAPPER

10 Columbus Circle 
New York, N. Y. 10019

Attorneys for Petitioners

71