Dokes v. Arkansas Petition for a Writ of Certiorari to the Supreme Court of Arkansas
Public Court Documents
January 1, 1967
Cite this item
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Brief Collection, LDF Court Filings. Carson v. American Brands, Inc. Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit, 1979. 17d7caf4-ac9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/10f3d57d-1554-4c5a-90c6-3e3c1fee5d7b/carson-v-american-brands-inc-petition-for-a-writ-of-certiorari-to-the-united-states-court-of-appeals-for-the-fourth-circuit. Accessed May 23, 2025.
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In the
(Emtrt of tl|? United States
October Term, 1979
No................
F rank L. Carson, L awrence H atcher,
and Stuart B. Mines,
v.
Petitioners,
A merican B rands, Inc ., t /a The A merican Tobacco Com pany ;
L ocal 182, Tobacco W orkers I nternational, Tobacco W ork
ers I nternational Union,
Respondents.
PETITION FOR A W RIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
H enry L. Marsh, III
W illiam H. B ass, III
Randall G. J ohnson
Hill, Tucker & Marsh
214 Bast Clay Street
P.O. Box 27363
Richmond, Yirginia 23261
J ohn W . Scott, Jr .
615 Caroline Street
Fredericksburg, Yirginia 22401
Jack Greenberg
James M. Nabrit, III
Barry L. Goldstein
Napoleon B. W illiams, Jr,
Suite 2030
10 Columbus Circle
New York, New York 10019
Counsel for Petitioners
TABLE OF CONTENTS
Page
CITATION TO OPINION BELOW.............. 2
JURISDICTION ...................................................................... 2
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED................................ 3
QUESTIONS PRESENTED ...................................................... 6
STATEMENT OF THE CASE ................................................. 7
HOW THE FEDERAL QUESTIONS WERE RAISED
BELOW ........................................................................... 15
REASONS FOR GRANTING THE WRIT .............................. 16
I . THE DISTRICT COURT'S ORDER DENYING
THE PARTIES' JOINT MOTION IS APPEALABLE
AS A COLLATERAL ORDER UNDER
28 U.S.C. §1291 ................................................... 19
I I . THE DISTRICT COURT'S DISAPPROVAL OF
THE PROPOSED CONSENT DECREE IS
APPEALABLE AS AN INTERLOCUTORY
ORDER UNDER 28 U.S.C. §1292 ( a ) ( 1 ) ______ 24
I I I . RULE 23(e ) DOES NOT AUTHORIZE A
FEDERAL DISTRICT COURT TO DISAPPROVE
A SETTLEMENT MEETING THE REQUIREMENTS
OF WEBER ON THE GROUND THAT THE CLASS
MEMBERS ARE NOT NECESSARILY VICTIMS
OF DISCRIMINATION BY THE DEFENDANTS . . . 28
CONCLUSION .......................................................................... 33
APPEENDIX
Opinion o f the Court o f Appeals .............. la
Opinion o f the D i s t r i c t Court ................... 28a
Judgment o f the D i s t r i c t Court ................ 51a
Judgment o f the Court o f Appeals . . . . . . . 52a
- i -
TABLE OF AUTHORITIES
C ases :
Alexander v. Gardner-Denver C o . , 415 U.S.
36 (1974) .................................................................. 18,30
Baltimore Contractors v . Bodinger,
348 U.S. 176 (19 ) .......................... ................ 26
C a t l in v. United S ta tes , 324 U.S 229
(1945) ....................... 19
Cohen v. B e n e f i c i a l I n d u s tr ia l Loan
Corp. 377 U.S. 541 (1949) _______ 1 7 ,19 ,20 ,24
Cold Metal Process Co. v . United
Eng'r 4 Foundry C o . , 351 U.S.
445 (1956) .............................. 27
Cooper & Lybrand v. L ivesay , 437
U.S. 463 (1978) ................................................. 19,23
Eisen v. C a r l i s l e & J acqu e l in , 417
U.S 156 (1974) ................................................. .. . 19
F l inn v. FMC Corporat ion , 528 F.2d 1169
(4th C ir . 1975), c e r t , denied
424 U.S. 969 (1976) ____. . . . . . . . . . . . . . . 31
Franks v . Bowman Transporta t ion C o . ,
424 U.S. 747 (1978) ............................ 11,22
In re In te r n a t io n a l House o f Pancakes
Franchise L i t i g a t i o n , 487
F . 2d 303 (8th Cir . 1973) .......................... 16
Gardner v. Westinghouse Broadcast ing Co . ,
437 U.S 478 (1978) ..................................... 19, 25, 26
G i l l e s p i e v . U.S. Stee l Corp . , 379
U.S. 148 (1964) . . . . ....... ............... .................. 23
Page
li
Page
L iber ty Mutual Ins . Co. v . Wetzel ,
424 U.S 737 (1976) ............................................ 25
M ercant i le National Bank at Dal las
v . Langdeau, 371 U.S 555 (1963) .............. 23,24
Norman v. McKee, 431 F .2d 769 (9th
Cir. 1970) c e r t , denied , 401
U.S. 912 (1971) .............................................. 16
Patterson v. Newspaper & Mail Del . U. o f
N.Y. V i c . , 514 F .2d 767 (2d
Cir . 1975), c e r t , denied , 427 U.S.
911 (1976) .............. 31
Regents o f the U n ivers i ty o f C a l i f o r n i a
v . Bakke, 438 U.S 265 (1978) ............ 18,21
R usse l l v . American Tobacco Company,
528 F .2d 357 (4th C ir .
1975), c e r t , denied , 425 U.S.
935 (19757“ . .777777............................................. 13
Sears, Roebuck & Co. v . Mackey, 351 U.S.
427 (1956) ............................................. 27
Seiga l v. Merrick , 590 F.2d 35 (2d
C ir . 1978) ............................................................... 16, 17
Switzer land Cheese A s s o c i a t i o n , Inc .
v. E. Horne's Market, I n c . , 385
U.S. 23 (1966) ...................................................... 25,26
Teamsters v . United S ta tes , 431 U.S. 324
(1977) ........................................................................ 22,24
United Steelworkers o f America, AFL-CIO-
CLC v . Weber, U.S.
61 L .Ed. 2d 4 80 T 1979) 7TT.......... 7 ,1 7 ,1 8 ,2 0 ,
2 1 ,22 ,24 ,27 ,
28 ,30 ,32
- iii -
Constitutional Provisions
F i f t h Amendment to the C o n s t i t u t i o n
o f the United States ............................ .. 3,15
Statutes
28 U.S.C. §1254(1) ................... ......................... 2
28 U.S.C. §1291 .......................... .. 3 ,6 ,8 ,1 6 ,
17,18, 19
28 U.S.C. § 1 2 9 2 (a ) (1 ) ....................... .. 3 , 6 , 8 , 1 6 ,
17 ,18 ,24 ,
25,26
42 U.S.C §1981 ...................................................... 6 ,7
T i t l e VII , C i v i l Rights Act o f 1964,
as amended, 42 U.S.C. §§2000e et
s e q .......................................................... ~ 3 - 5 ,7 , 1 5 , 1 7 ,
18 ,2 2 ,2 4 ,2 7 ,
28, 30
Rules
Rule 2 3 ( e ) , Federa l Rules o f
C i v i l Procedure ................................ 6 , 7 , 1 3 ,1 5 ,
28
L e g i s l a t i v e History
Remarks o f Senator Hubert Hemphrey,
110 Cong. R e c . , 6548, concerning
T i t l e VII, C i v i l Rights Act o f
1964, as amended, 42 U.S.C.
§§200Ge et s e q . . ............................ .................... 30
- iv -
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1979
No.
FRANK L. CARSON, LAWRENCE HATCHER,
and STUART E. MINES,
P e t i t i o n e r s ,
v .
AMERICAN BRANDS, INC. , T/A THE
AMERICAN TOBACCO COMPANY; LOCAL 182,
TOBACCO WORKERS INTERNATIONAL,
TOBACCO WORKERS INTERNATIONAL UNION,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Frank L. Carson, Lawrence Hatcher, and Stuart
E. Mines, p e t i t i o n f o r a wri t o f c e r t i o r a r i to
review the judgment o f the United States Court o f
Appeals f o r the Fourth C i r c u i t , entered on Septem
ber 14, 1979, d i sm iss in g an appeal by p e t i t i o n e r s
from an o r d e r , e n t e r e d June 2, 1977, by the
2
U n ite d S t a t e s D i s t r i c t Court f o r the E a s t e r n
D i s t r i c t o f V i r g in ia , Richmond D iv i s i o n , denying a
j o i n t motion by the p a r t i e s to approve and enter a
consent decree .
CITATION TO OPINION BELOW
The o p i n i o n o f the Court o f A p p ea ls i s
r e p o r t e d at 606 F .2d 420 and i s s e t f o r t h in
th e A p p e n d ix . The o p i n i o n o f the D i s t r i c t
Court i s reported at 446 F.Supp. 790 and i s set
out in the Appendix.
JURISDICTION
The judgment o f the Court o f Appeals d i s m is
s i n g th e a p p ea l was e n t e r e d on September 14,
1979. See Appendix. Fol lowing th i s d is m is s a l ,
p e t i t i o n e r s f i l e d a motion with th is Court f o r an
exten s ion o f time in which to f i l e a p e t i t i o n f o r
a w r i t o f c e r t i o r a r i . On December 6, 1979, the
Court granted the motion and ordered the time f o r
p e t i t i o n e r s t o f i l e a wri t o f c e r t i o r a r i extended
u n t i l , and in c lu d in g , February 11, 1980.
J u r i s d i c t i o n o f t h i s Court is invoked pur
suant to 28 U.S.C. §1254(1 ) .
3
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
This case in vo lves the F i f t h Amendment to the
C o n s t i t u t i o n o f the United S tates ,
This case a lso in vo lves the f o l l o w in g fe d e r a l
s t a t u t e s :
a. 28 U.S.C, §1291
The c o u r t o f a p p e a ls s h a l l have
j u r i s d i c t i o n o f appeals from a l l f i n a l
d e c i s i o n s o f the d i s t r i c t cou r ts o f the
United S tates , the United States D is
t r i c t Court f o r the D i s t r i c t o f the
Canal Zone, the D i s t r i c t Court o f Guam,
and the D i s t r i c t Court o f the V i r g i n
I s lands , except where a d i r e c t review
may be had in the Supreme Court.
b . 28 U.S.C. §1292(a)
The c o u r t o f a p p e a l s s h a l l have
j u r i s d i c t i o n o f appeals from:
(1 ) I n t e r l o c u t o r y orders o f the
d i s t r i c t courts o f the United S tates ,
the United States D i s t r i c t Court f o r the
D i s t r i c t o f the Canal Zone, the D i s t r i c t
Court o f Guam, and the D i s t r i c t Court o f
the V i r g i n I s l a n d s , o r o f the ju d g e s
t h e r e o f , g rant ing , con t in u in g , modi fy
ing, r e fu s in g or d i s s o l v i n g in ju n c t i o n s ,
o r r e f u s i n g t o d i s s o l v e o r m o d i f y
i n j u n c t i o n s , e x c e p t where a d i r e c t
review may be had in the Supreme Court.
c . 42 U.S.C. §2000e-2
( a ) I t s h a l l be an u n l a w f u l
employment p r a c t i c e f o r an employer—
(1 ) t o f a i l or r e fu se to h i r e or
to d ischarge any i n d i v i d u a l , o r o t h e r
wise to d i s c r im in a te against any i n d i v i
dual with resp ec t t o h is compensation,
t e r m s , c o n d i t i o n s , o r p r i v i l e g e s o f
employment, because o f such i n d i v i d u a l ’ s
r a c e , c o l o r , r e l i g i o n , sex , o r n a t io n a l
o r i g i n ; or
( 2 ) t o l i m i t , s e g r e g a t e , o r
c l a s s i f y h i s employees or a p p l i ca n ts f o r
e m p l o y m e n t i n any way w h i c h w o u l d
depr ive o r tend to depr ive any i n d i v i
dual o f employment o p p o r t u n i t i e s o r
otherwise adverse ly a f f e c t h i s s tatus as
an e m p lo y e e , b e c a u s e o f such i n d i v i
d u a l ' s ra ce , c o l o r , r e l i g i o n , sex , or
n a t ion a l o r i g i n .
( c ) It s h a l l be an unlawful employment
p r a c t i c e f o r a l a b o r o r g a n i z a t i o n - -
( 1 ) t o e x c l u d e o r t o e x p e l
from i t s membership, or otherwise
t o d i s c r i m i n a t e a g a i n s t , any
i n d i v i d u a l b e c a u s e o f h i s r a c e ,
c o l o r , r e l i g i o n , sex , o r na t ion a l
o r i g i n ;
(2 ) t o l i m i t , segregate , or
c l a s s i f y i t s membership or a p p l i
cants f o r membership, or to c l a s
s i f y or f a i l or re fu se to r e f e r f o r
employment any in d i v i d u a l , in any
way which would depr ive or tend to
depr ive any in d iv id u a l o f employ
ment o p p o r t u n i t i e s , or would l i m i t
s u c h e m p l o y m e n t o p p o r t u n i t i e s
- 5 -
or otherwise adverse ly a f f e c t h i s
s t a t u s as an em ployee o r as an
a p p l i ca n t f o r employment, because
o f such i n d i v i d u a l ' s ra ce , c o l o r ,
r e l i g i o n , sex , or n a t io n a l o r i g i n ;
or
( 3 ) t o c a u s e or a t tem p t to
cause an employer to d i s c r im in a te
aga inst an in d iv id u a l in v i o l a t i o n
o f t h i s s e c t i o n .
( j ) N o th in g c o n t a i n e d in t h i s s u b
chapter s h a l l be in te rp r e te d to requ ire
any employer, employment agency, labor
o r g a n iz a t i o n , or j o i n t labor-management
committee s u b je c t t o th i s subchapter to
g r a n t p r e f e r e n t i a l t r e a t m e n t to any
in d iv id u a l or to any group because o f
th e r a c e , c o l o r , r e l i g i o n , s e x , or
n a t ion a l o r i g i n o f such in d iv id u a l or
group on account o f an imbalance which
may e x i s t w i th r e s p e c t t o the t o t a l
number or percentage o f persons o f any
r a c e , c o l o r , r e l i g i o n , sex , or n a t ion a l
o r i g i n e m p l o y e d by any e m p l o y e r ,
r e f e r r e d or c l a s s i f i e d f o r employment by
any employment agency or labor o rg a n iza
t i o n , admitted to membership or c l a s
s i f i e d by any l a b o r o r g a n i z a t i o n ,
o r a d m i t t e d t o , o r employed i n , any
a p p ren t i cesh ip o r o ther t ra in in g pro
gram, in c o m p a r i s o n w i t h the t o t a l
number or percentage o f persons o f such
r a c e , c o l o r , r e l i g i o n , sex , or n a t ion a l
o r i g i n in any community, S tate , s e c t i o n ,
or o ther area, or in the a v a i la b l e work
f o r c e in any community, S tate , s e c t i o n ,
or o ther area.
d • Rule 2 3 ( e ) , Federal Rules o f C i v i l Pro
cedure “ “ ‘
A c l a s s act ion s h a l l not be d i s
m i s s e d o r c o m p r o m i s e d w i t h o u t t h e
approval o f the c o u r t , and n o t i c e o f the
p r o p o s e d d i s m i s s a l s h a l l be g i v e n t o
a l l members o f the c la s s in such manner
as the court d i r e c t s .
QUESTIONS PRESENTED
1. Whether the Court o f Appeals erred in
ho ld ing that p e t i t i o n e r s were not e n t i t l e d under
28 U.S.C. §§1291 and 1 29 2 (a ) (1 ) to appeal a d en ia l
by the d i s t r i c t c ou r t o f a j o i n t motion by the
p a r t i e s to approve and enter a proposed consent
d e c r e e e n j o i n i n g d e f e n d a n t s from e n g a g in g in
unlawful d i s c r im in a to r y a c t i o n s under T i t l e VII o f
the C i v i l R ig h t s A c t o f 1964, as amended, 42
U .S .C . § § 2 0 0 0 e , e t s e q . , and 42 U .S .C §1981?
2. Whether the f e d e r a l d i s t r i c t cou r t below
erred in ho ld ing that the due proc ess c lause o f
the F i f t h Amendment to the C o n s t i tu t i o n o f the
United States and T i t l e VII o f the C i v i l Rights
Act o f 1964, p r o h i b i t federa l courts from j u d i
c i a l l y approving , in the absence o f d i s c r im in a t i o n
by defendants against p l a i n t i f f s and other c la ss
members, proposed consent decrees prov id ing f o r
7
remedial use o f r a c e - c o n s c i o u s a f f i r m a t iv e a c t i o n
program in accordance with requirements set f o r th
in United Steelworkers o f America, AFL-CIO-CLC v.
W eber , ___ J J .S . ___61 L .Ed . 2d 480 ( 1 9 7 9 ) ?
3. Whether the d i s t r i c t cou r t below app l ied
proper c r i t e r i a , or otherwise abused i t s d i s c r e
t i o n , under Federal Rules o f C i v i l Procedure 23(e)
in r e f u s in g to approve a proposed sett lement by
the p a r t i e s o f a T i t l e VII c l a s s a c t i o n ?
STATEMENT OF THE CASE
General . On October 24, 1975, p e t i t i o n e r s ,
p r e s e n t and fo r m e r s e a s o n a l em p lo y e e s a t the
Richmond Leaf Department o f the American Tobacco
Company, a su b s id ia ry o f American Brands, I n c . ,
which is l o c a te d in Richmond, V i r g in ia , f i l e d a
complaint on b e h a l f o f themselves and other black
employees at the Richmond Leaf Department. The
complaint charged that defendant American Brands,
I n c . , defendant Tobacco Workers' In te r n at io n a l
Union , and d e f e n d a n t L o c a l 182 o f the T o b a cc o
Workers' In te r n at io n a l Union, in v i o l a t i o n o f the
C i v i l Rights Act o f 1964, 42 U.S.C. §§2000e, et
s e q . , and 42 U.S.C §1981, d i s c r i m i n a t o r i l y denied
b l a c k w o r k e r s h i r i n g , p r o m o t i o n , and t r a n s f e r
o p p o r t u n i t i e s and d i s c r i m i n a t o r i l y r e s t r i c t e d
_ 8 -
b l a c k w o r k e r s t o low p a y i n g and o t h e r w i s e un
d e s i r a b le j o b s .
A f t e r the conduct o f ex te n s iv e d i s c o v e r y , the
d i s t r i c t c o u r t , on March 1, 1977, c e r t i f i e d a
c l a s s c o n s i s t i n g o f (1 ) b lack persons, c u r r e n t ly
and former ly employed who were seasonal employees
o f the American Tobacco Company's Richmond Leaf
Department on or a f t e r September 9, 1972, and (2 )
b lack persons who app l ied f o r seasonal employment
at the American Tobacco Company's Richmond Leaf
Plant on or a f t e r September 9, 1972.
The p a r t i e s reached a sett lement o f p l a i n
t i f f s ' c la im s , entered in to a proposed consent
d e cr e e , and j o i n t l y moved f o r approval and entry
o f the proposed d ecr ee . The d i s t r i c t court denied
the motion on June 1, 1977.
On May 14, 1979, the United States Court o f
Appeals f o r the Fourth C i r c u i t ordered the merits
o f the a p p ea l t o be d e t e r m in e d en ban c . On
September 14, 1979, however, the Court o f Appeals
ordered the appeal dismissed on the ground that
the order appealed from below was not appealable
w i t h i n t h e in tendm ent o f 28 U .S .C . §§1291 and
1292. Chief judge Haynsworth and c i r c u i t judges
Winter and Butzner d is sen ted in an op in ion ho ld ing
that the order was appealab le and that the consent
decree should have been approved.
- 9 -
H istory o f Rac ia l D i s c r im in a t io n . American
Brands, I n c . , employs 150 seasonal employees and
100 r e g u la r , or f u l l - t i m e , employees to process
and s t o r e l e a f t o b a c c o at the Richmond L e a f
Department o f th e Am er ican T o b a c c o Company in
Richmond, V i r g in ia . The seasonal employees, a l l
o f whom are b l a c k , work b e tw een s i x and n in e
months d u r in g the y e a r . By c o n t r a s t , r e g u l a r
employees, o f whom 34% are white , work throughout
th e y e a r . — ̂ Both the s e a s o n a l and r e g u l a r em
ployees are represented by defendant Local 182,
Tobacco Workers ' In te r n a t io n a l Union ( h e r i n a f t e r
"T .W . I .U . " ) .
P r io r to September 16, 1963, union j u r i s d i c
t i o n o v e r j o b p o s i t i o n s at the Richmond L e a f
Department was d iv ided betweeen Local 182 o f the
T .W . I . U . and L o c a l 214 o f th e T .W . I .U . The
former, whose membership was then a l l white , had
e x c l u s i v e j u r i s d i c t i o n over regu lar job c l a s s
i f i c a t i o n s . Loca l 214 's membership was l im ited
1/ The f o l l o w in g t a b le represents the r a c i a l
c o m p o s i t i o n o f the em p lo y e e s at the Richmond
Leaf Department from 1968-1976:
Year Regular Employeed Seasonal Employees
Whites Blacks Whites Blacks
1968 41 52 0 116
1970 40 59 0 175
1973 40 56 0 176
1976 37 57 0 135
10
to b lack employees who were seasonal workers at
the Richmond Leaf Department,
While the e x i s t e n c e o f two separate unions at
the Department was o f f i c i a l l y t e r m in a t e d on
September 16, 1963, the p r e - e x i s t i n g patterns o f
r a c i a l d i s c r i m i n a t i o n , h o w e v e r , c o n t i n u e d in
e f f e c t at the Richmond Leaf Department as a con se
quence o f r e g u la t i o n s and procedures e s t a b l i s h i n g
the system o f s e n i o r i t y and t r a n s fe r r i g h t s o f
employees .
S e n i o r i t y and T r a n s f e r R i g h t s . P r i o r t o
September 16, 1963, permanent job vacanc ies were
f i l l e d by c a n v a s s i n g th e e m p loy ees w i t h i n the
barga in ing un it o f the union having j u r i s d i c t i o n
o f the j o b s in which t h e v a c a n c i e s e x i s t e d .
This procedure b e n e f i t t e d the white members o f
Local 182 in the com pet i t ion f o r permanent jo b
p o s i t i o n s .
F o l l o w i n g the 1963 m erger o f the L o c a l s ,
the ru les governing the f i l l i n g o f vacancies in
the f u l l - t i m e p o s i t i o n s continued to exc lude or
d i s a d v a n t a g e the b l a c k w orkers who had been
d i s c r i m i n a t o r i l y ass igned to seasonal p o s i t i o n s .
When management r e q u e s t s a j o b t r a n s f e r o f a
r e g u l a r em ployee t h a t em p lo y e e d o e s not l o s e
s e n i o r i t y r i g h t s , but when management requests a
seasonal employee to t r a n s fe r to f u l l - t i m e work
11
that employee l o s e s h is s e n i o r i t y r i g h t s . More
over , when a regu lar worker t ra n s fe r s from one
f u l l - t i m e jo b to another one the employee re t a in s
a l l o f h i s s e n i o r i t y r i g h t s , but when a seasonal
worker t r a n s fe r s to a f u l l - t i m e jo b he lo ses a l l
2/
o f h i s s e n i o r i t y r i g h t s . — Furthermore, a seasonal
w o r k e r who t r a n s f e r s t o a f u l l - t i m e p o s i t i o n
almost always must enter at a b o t t o m - l e v e l p o s i
t i o n because the regu lar workers have the f i r s t
opportu n ity to move to the vacanc ies in f u l l - t i m e
p o s i t i o n s ; a c c o r d in g ly , i f a seasonal worker i s
employed in a seasonal p o s i t i o n above the e n t r y -
l e v e l , he f r equent ly w i l l be required to s u f f e r a
sh ort - te rm pay cut in order to move in t o a f u l l
time p o s i t i o n . The im pos i t ion o f these p e n a l t i e s ,
the l o s s o f s e n i o r i t y and the p o s s i b l e red u c t ion
in sh ort - te rm pay, serve to lock in the e f f e c t s o f
the h i s t o r i c a l d i s c r i m i n a t o r y p r a c t i c e s which
e x i s t e d a t the Richmond L e a f D i v i s i o n . For
example, as o f February 13, 1976 only one o f the
16 p o s i t i o n s o f watchman was h e l d by a b l a c k
employee.
2/ The t r a n s f e r r in g seasonal worker l o s e s not
only h is " c o m p e t i t i v e " s e n i o r i t y r i g h t s , e . g . ,
r i g h ts f o r job s e c u r i ty and promotion, but a lso
h i s " b e n e f i t " s e n i o r i t y r i g h t s , e . g . , r i g h t f o r
s i ck leave and v a c a t io n , except f o r ret irement
b e n e f i t s . Cf. Franks v . Bowman Transportat ion
C o . , 424 U.S. 747, TT5T5TT
- 12
The h i s t o r i c a l p r a c t i c e s o f d i s c r im in a t i o n
have continued to l im i t the employment o p p o r tu n i
t i e s o f b lack workers f o r su p erv iso r y as w e l l as
hour ly j o b s . Almost invarably the Company s e l e c t s
i t s s u p e r v i s o r y e m p lo y e e s f rom i t s f u l l - t i m e
s t a f f . The Company has never promoted a seasonal
w o rk e r d i r e c t l y t o a s u p e r v i s o r y p o s i t i o n .
The c o n t i n u a t i o n o f the e f f e c t s o f the p ast
s e g r e g a t iv e p r a c t i c e s has r e s u l t e d in the s e l e c
t i o n o f a d i s p r o p o r t i o n a t e l y small group o f the
Company 's b l a c k e m p lo y e e s as s u p e r v i s o r s . As
o f A p r i l , 1976, on ly 20/£ o f these p o s i t i o n s were
f i l l e d by b la c k s .
P r o p o sed Consent D e c r e e . D i s c o v e r y c o n
ducted by the p a r t i e s f o l l o w in g the commencement
o f t h i s lawsuit showed d ra m a t ic a l ly the degree to
which p a r t i c u l a r j o b c l a s s i f i c a t i o n s c o u l d be
i d e n t i f i e d by ra ce . I t a l so showed the extent to
which s e n i o r i t y ru les and t r a n s fe r ru les impinged
on the ca p a c i ty o f defendants to e r a d i c a te the
v e s t i g e s o f p a s t r a c i a l d i s c r i m i n a t i o n . The
part i e s , o f c o u r s e , had d i f f e r i n g views on the
extent to which such l i n g e r i n g e f f e c t s e x i s t . To
r e s o l v e t h e i r d i s a g r e e m e n t and t o s e t t l e the
co n t r o v e r s y , the p a r t i e s n eg o t ia ted a proposed
consent decree s e t t l i n g a l l c laims outstanding
be tw een them and p r e s e n t e d i t t o the d i s t r i c t
13
c o u r t , i n a c c o r d a n c e w i th Rule 2 3 ( e ) o f the
Federa l Rules o f C i v i l Procedure.
One o f the p r i n c i p a l fea tures o f the proposed
consent decree was a s e n i o r i t y c lause re q u ir in g
current and future employees to be c r e d i t e d with
a c t u a l t ime worked at the p l a n t as s e a s o n a l
e m p l o y e e s . A n o t h e r f e a t u r e o f the p r o p o s e d
c o n s e n t d e c r e e a l l o w e d s e a s o n a l em p lo y e e s to
t r a n s fe r to permanent j o b p o s i t i o n s as vacanc ies
o ccurred prov ided , o f c o u r s e , no regu lar employees
d e s i r e d the p o s i t i o n s . These p r o v i s i o n s were
patterned a f t e r the r e l i e f fashioned f o r seasonal
workers in R usse l l v. American Tobacco Company,
supra , 528 F .2d 357, 362-64 (4th C ir . 1975), c e r t .
d e n i e d , 425 U .S . 935 ( 1 9 7 6 ) . Under the f i r s t
above-mentioned fea ture o f the proposed consent
d ecr ee , seasonal workers are allowed to maintain
t h e i r s e n i o r i t y upon t r a n s f e r to regu lar p o s i
t i o n s . Under the second f e a tu r e , seasonal employ
ees are permitted to b id on vacanc ies in c l a s s
i f i c a t i o n s , such as watchmen, which were once
reserved f o r whites .
In a d d i t i o n , th e p r o p o s e d c o n s e n t d e c r e e
con ta in ed , in Part I I I , s e c t i o n 5, an a f f i r m a t iv e
a c t i o n p r o v i s i o n to reduce a h i s t o r i c a l underrep
r e s e n t a t i o n o f b la c k s which had e x i s t e d in the
14 -
su perv iso ry p o s i t i o n s . This p r o v i s i o n provided
t h a t :
The Richmond Leaf Department adopts a goa l o f
f i l l i n g the product ion superv isory p o s i t i o n s
o f Foreman and A s s i s ta n t Foreman with q u a l i
f i e d b lacks u n t i l the percentage o f b lacks
in such p o s i t i o n s equals 1/3 o f the t o t a l o f
such p o s i t i o n s . The d a t e o f December 31,
1980 i s h e r e b y e s t a b l i s h e d f o r the accom
plishment o f t h i s g o a l .
Furthermore, the consent decree e l iminated
the requirement that seasonal workers must serve a
p r o b a t i o n a r y p e r i o d when they t r a n s f e r t o a
f u l l - t i m e p o s i t i o n . F i n a l l y , the decree conta ined
a genera l i n j u n c t i o n p r o h i b i t i n g the defendants
from d i s c r i m i n a t i n g a g a i n s t b l a c k w ork ers and
a r e p o r t in g p r o v i s i o n re q u ir in g the Company to
submit f o r a th ree -year per iod s p e c i f i c rep or ts
d e t a i l i n g compliance with the Decree.
A l l o f the p a r t i e s found that these p r o v i
s ions represented , in l i g h t o f the h i s t o r y o f the
Richmond Leaf Department, a sett lement that was
r e a s o n a b l e , j u s t , and f a i r to a l l c o n c e r n e d .
Despite t h e i r agreement, the d i s t r i c t c o u r t , by
o rder f i l e d June 2, 1977, denied the j o i n t motion
o f the p a r t i e s to approve and enter the proposed
consent d ecree .
15
HOW THE FEDERAL QUESTIONS WERE RAISED BELOW
A j o i n t motion was made by the p a r t i e s to the
d i s t r i c t court to approve and e n ter , pursuant to
the r e q u i r e m e n t s o f Rule 2 3 ( e ) o f the F e d e r a l
Rules o f C i v i l Procedure, the proposed consent
d e c r e e . The m o t i o n was d e n i e d . The d i s t r i c t
court o f f e r e d se v e ra l reasons in support o f i t s
r e f u s a l to grant the motion. F i r s t , the court
s ta te d that T i t l e VII o f the C i v i l Rights Act and
the due process c la u se o f the F i f t h Amendment to
the C o n s t i t u t i o n p r o h i b i t e d the c o u r t and the
d e f e n d a n t e m p lo y e r s and u n io n s from award ing
p r e f e r e n t i a l treatment to employees based upon
r a c e e x c e p t upon a showing o f p a s t o r p r e s e n t
d i s c r i m i n a t i o n . S e co n d , t h e c o u r t s a i d the
p r o p o s e d c o n s e n t d e c r e e was f a t a l l y f l a w e d in
s e e k in g t o p r o v i d e p r e f e r e n t i a l t r e a t m e n t f o r
b lack employees who were not shown to have been
v i c t im s o f d i s c r im in a t i o n . The court s ta ted that
the a b s e n c e o f d i s c r i m i n a t i o n was e s t a b l i s h e d
by the f a c t t h a t the p r o p o s e d c o n s e n t d e c r e e
c o n t a i n e d a p r o v i s i o n in which the d e f e n d a n t s
denied that t h e i r a c t ion s had been d i s c r im in a to r y .
The issue o f the a p p e a la b i l i t y o f the d i s
t r i c t c o u r t ' s o rder was ra i se d when, upon appeal,
t h e Court o f A p p e a ls f o r the Fourth C i r c u i t
16
dismissed the appeal on the ground that the order
was n o n a p p e a l a b l e under 28 U .S .C . §§1291 and
1292 ( a ) ( 1 ) .
REASONS FOR GRANTING THE WRIT
The p e t i t i o n should be granted because o f a
c o n f l i c t between the c i r c u i t s . The importance
and complexity o f the i s su es are demonstrated by
the convening o f an en banc court and by the fact
that the o ther two C i r c u i t Courts o f Appeals which
have e x p l i c i t l y con s id ered the i ssues have ren
dered c o n f l i c t i n g d e c i s i o n s . The Fourth C i r c u i t
s p e c i f i c a l l y noted that i t s d e c i s i o n was in accord
w i th t h a t o f the Second C i r c u i t in S e i g a l v .
M err i ck , 590 F . 2d 35 (2d C ir . 1978) and contrary
to the d e c i s i o n o f the Ninth C i r c u i t in Norman v.
McKee, 431 F .2d 769 (9th C ir . 1970) c e r t . d e n ie d ,
401 U.S. 912 (1971 ) . The Fourth C i r c u i t ' s d e c i
s i o n a l s o c o n f l i c t s w i th the d e c i s i o n o f the
Eighth C i r c u i t in Re In te r n a t io n a l House o f Pan-
cakes Franchise L i t i g a t i o n , 487 F .2d 303 (8th C ir .
1973). The Second C i r c u i t in Seigal v. Merrick ,
supra , l i k e the Fourth C i r c u i t , e x p l i c i t l y s ta ted
tha t i t s d e c i s i o n t h e r e was i n c o n f l i c t w i th
Norman v . McKee, supra .
C i r c u i t Judges, Winter, Butzner, and Chief
Judge Haynswort’n d i s s e n te d below, h o ld in g that the
17
o r d e r was a p p e a l a b l e under § 1 2 9 2 ( a ) ( l ) as an
i n t e r l o c u t o r y o r d e r r e f u s i n g an i n j u n c t i o n .
The p e t i t i o n should a lso be granted because
o f the importance o f the i ssues r a i s e d . Two of
the i ssues concern a p p e a la b i l i t y o f orders under
the f e d e r a l a p p e a l s s t a t u t e s . The t h i r d , and
f i n a l , i s su e concerns the a b i l i t y o f l i t i g a n t s
to s e t t l e T i t l e VII c l a s s a c t i o n s , pursuant to
Rule 23(e ) o f the Federal Rules o f C i v i l Proce
dure, in accordance with c r i t e r i a set f o r th by
t h i s Court in U n i ted S t e e l w o r k e r s o f A m er ic a ,
AFL-CIO-CLC v . Weber, supra.
The f i r s t issue on a p p e a la b i l i t y i s whether a
d i s t r i c t c o u r t ' s r e f u s a l to approve a proposed
consent decree i s ap pea lab le , notwithstanding the
" f i n a l i t y " requirement o f 28 U.S.C. §1291, under
the " c o l l a t e r a l o r d e r " d o c t r in e d escr ibed in Cohen
v . B e n e f i c i a l I n d u s t r i a l Loan C o r p . , 337 U.S.
----------------------------------------- j j ----------------------- — --------------------------- ---------------------
541 ( 1 9 4 9 ) . — The s e c o n d i s s u e r a i s e d in t h i s
p e t i t i o n i s whether such an order i s appealable
under 28 U .S .C . § 1 2 9 2 ( a ) ( l ) i f the p r o p o se d
consent decree in c lu d es , as h e re , a request fo r
i n j u n c t iv e r e l i e f and i f the c o u r t ' s d isapprova l
o f the decree i s based upon i t s determination that
a p p r o v a l i s p r o h i b i t e d by f e d e r a l law. The
3 / On t h i s i s s u e , the d e c i s i o n in Norman
v. McKee, supra , i s in c o n f l i c t with the d e c i s i o n
in Seigal v . M err i ck , supra , and with the d e c i s i o n
by the Court o f Appeals below.
18
answers to these quest ions turn upon the proper
i n t e r p r e t a t i o n and a p p l i c a t i o n o f 28 U.S.C. §§1291
and 1292 ( a ) ( 1 ) . This C ou r t 's response to these
i s s u e s w i l l be o f c r u c i a l i m p o r t a n c e to the
a b i l i t y o f l i t i g a n t s to s e t t l e ac t ions and the
e f f e c t u a t i o n o f Congress ional and j u d i c i a l p o l i
c i e s fa v o r in g sett lement o f a c t i o n s by l i t i g a n t s
themselves. A c c o r d : Alexander v. Gardner-Denver
£2.’ » U.S 36, 44 (1974 ) ; Regents o f the Uni-
v e r s i t y o f C a l i f o r n i a v . Bakke , 438 U.S 265,
364-65 (1978) (Opinion o f J u s t i c e s Bennan, White,
Marshall , and Blackmun).
The C o u r t ' s r e s o l u t i o n o f th e t h i r d i s s u e
w i l l dec ide whether the d e c i s i o n in Weber, supra,
can be used by l i t i g a n t s in pending a c t i o n s as a
b a s i s f o r sett lement o f p r iv a t e T i t l e VII a c t i o n s .
In p a r t i c u l a r , i t w i l l r e s o lv e the quest ion o f
w h eth er a d i s t r i c t c o u r t can s e i z e upon the
p a r t i e s ’ i n c l u s i o n , in a proposed consent order ,
o f an excu lpatory c la u s e , whereby defendant is
p e r m i t t e d to deny any d i s c r i m i n a t i o n a g a i n s t
p l a i n t i f f , as a bas is f o r denying approval o f a
consent decree which is in s t r i c t compliance with
Weber.
19
I.
THE DISTRICT COURT'S ORDER DENYING THE
PARTIES' JOINT MOTION IS APPEALABLE AS
A COLLATERAL ORDER UNDER 28 U .S .C . §1291.
P e t i t i o n e r s agree that the p o l i c y o f 28 U.S.C.
§1291 d i s f a v o r i n g appeals from nonf ina l orders i s
sa lu tary and must be re sp e c te d . Cooper & Lybrand
v . L i v e s a y , 437 U.S 463 , 471 (1 9 7 8 ) ; Gardner
v. Westinghouse Broadcast ing Co. , 437 U.S. 478,
480 (1978 ) . J u d i c i a l orders which do not r e s u l t
in a judgment terminat ing the e n t i r e a c t i o n are
g e n e r a l ly not f i n a l judgments with in the in tend
ment o f §1291. C a t l in v . United S t a t e s , 324 U.S.
229 (1945) . The purpose o f the f i n a l i t y r e q u i r e
ment is to prevent the d e b i l i t a t i o n o f j u d i c i a l
adm in is trat ion caused by piecemeal reviews o f a
s in g l e con tr oversy . Eisen v , C a r l i s l e & Jacque-
l_in_, 417 U.S 156, 170 (1974). C at l in v. United
S t a t e s , 324 U.S. at 233. See Cohen v. B e n e f i c i a l
I n d u s tr ia l Loan Corp. , supra , 337 U.S. at 546.
This p o l i c y , however, i s not f r u s t r a te d by p e r
m it t in g appeals on c e r t a i n c o l l a t e r a l orders that
cannot be reviewed e f f e c t i v e l y on appeal from a
f i n a l judgment. Cohen v. B e n e f i c i a l In d u s tr ia l
Loan Corp. , supra , 337 U.S. at 546.
To insure that cou r ts do not use th is excep
t i o n perm it t ing appeals o f c o l l a t e r a l orders to
d e fea t the obvious in tent o f the s t a t u t e , th is
Court has he ld that the e x cep t ion i s only a p p l i c
able t o the small c l a s s o f orders which
- 20
f i n a l l y determine claims o f r i g h t separab le
from and c o l l a t e r a l t o , r i g h t s a sser ted in
the a c t i o n , too important to be denied review
and too independent o f the cause i t s e l f to
r e q u i r e t h a t a p p e l l a t e c o n s i d e r a t i o n be
d e f in ed u n t i l the whole case is ad ju d ica ted .
Cohen, supra , 337 U.S. at 546.
The c o l l a t e r a l order d o c t r in e i s a p p l i c a b le
i f ( 1 ) the m e r i t s o f the c o l l a t e r a l o r d e r are
separate and independent from the meri ts o f the
a c t i o n i t s e l f , ( 2 ) th e c o l l a t e r a l o r d e r has
f i n a l l y determined the " c o l l a t e r a l ” r i g h t s , (3 )
s e r i o u s and i r r e p ar ab le in ju ry has been caused by
the c o l l a t e r a l o rd e r , and (4 ) the c o l l a t e r a l order
cannot be e f f e c t i v e l y reviewed on appeal.
The order o f the d i s t r i c t court below s a t
i s f i e s each o f these four c r i t e r i a . The d i s t r i c t
c o u r t ' s order denying approval o f the proposed
consent decree determined c o n c l u s i v e l y and f i n a l l y
f o r the p a r t i e s h e r e i n w h eth er an a f f i r m a t i v e
a c t i o n plan s a t i s f y i n g the requirements o f Weber
can be used as the b a s i s f o r s e t t l i n g the l i t i g a
t i o n . In Weber, t h i s Court upheld the v a l i d i t y o f
an a f f i r m a t i v e a c t i o n p la n p r o v i d i n g r e m e d ia l
r e l i e f to m i n o r i t i e s who worked in occupat ions
which had t r a d i t i o n a l l y been c l o s e d to them. This
Court no ted t h a t the p la n approved in Weber
between the United Steelworkers o f America and
Kaiser Aluminum & Chemical C o r p . , l i k e the one
h e r e , d i d not r e q u i r e the d i s c h a r g e o f w h i t e
21
workers or o therwise u n n e c e ss a r i ly trammel upon
the i n t e r e s t s o f white employees. Moreover, the
p lan, again l i k e h ere , was vo luntary and designed
t o b r e a k down t r a d i t i o n a l p a t t e r n s o f r a c i a l
s e g re g a t io n and h i e r a r c h y . A d d i t i o n a l l y , the plan
in Weber, l i k e the plan here , d id not c r e a t e an
a bso lu te bar to the advancement o f white employ
ees . I t was temporary and was created to e l im in
ate a mani fest r a c i a l balance and not to maintain
r a c i a l ba lance . F i n a l l y , both the plan in Weber
and the plan envis ioned by the consent decree did
n o t r e q u i r e a p e r c e n t a g e o f b l a c k e m p loy ees
g rea ter than that o f b lacks in the labor f o r c e .
In approving the v a l i d i t y o f the Kaiser plan,
th i s Court he ld that the v a l i d i t y o f the plan was
independent o f whether Kaiser or United S t e e l
workers had d i s c r im in a te d against b lacks and was
independent o f whether any o f the b lack employees
who were to b e n e f i t from the plan were themselves
v i c t i m s o f d i s c r i m i n a t i o n by e i t h e r K a i s e r o r
4 /
U n ited S t e e l w o r k e r s . — The p r o p o s e d c o n s e n t
d e c r e e r e j e c t e d by the d i s t r i c t c o u r t b e l o w
had an a f f i r m a t i v e a c t i o n component e x a c t l y l i k e
4 / To t h i s extent the d e c i s i o n in Weber tracks
the d e c i s i o n in Regents o f the U nivers i ty o f Ca l i f
o r n i a v . B a k k e 4 38 uTsT 265 (1 9 78 ) where the
Court approved the l im ite d use o f r a c e - c o n s c i o u s
plans without r e s t r i c t i n g t h e i r use to v i c t im s o f
d i s c r im in a t i o n by the o r i g i n a t o r s o f the plans.
22
the p lan in Weber. Moreover, the s o le bas is f o r
the d i s t r i c t c o u r t ' s r e j e c t i o n o f the proposed
decree was the in c l u s i o n o f an a f f i r m a t i v e a c t i o n
plan in the absence o f p r o o f o f d i s c r im in a t i o n
by de fendants against p l a i n t i f f s and the c l a s s
members.
Thus, in r e j e c t i n g the decree , the d i s t r i c t
c o u r t made a f i n a l determinat ion o f the p a r t i e s '
r i g h t to s e t t l e the a c t i o n with a j u d i c i a l decree
i n c o r p o r a t i n g a program o f a f f i r m a t i v e a c t i o n
based upon Weber. The op in ion o f the d i s t r i c t
cou r t that a l e g a l impediment e x i s t e d to approval
o f the consent decree was a f i n a l determinat ion
which was not c o n d i t i o n e d upon any fu r th er a c t i o n
be ing taken by one or both o f the p a r t i e s . The
i s sues thereby dec ided by the d i s t r i c t court were
separate and independent o f the i ssues r a i s e d in
the T i t l e VII a c t i o n s i n c e , in order to p r e v a i l in
that a c t i o n , the p e t i t i o n e r s must show that they
and the members o f the c l a s s are v i c t i m s o f
d i s c r i m i n a t i o n by d e f e n d a n t s . See Franks v .
Bowman Transportat ion Co. , 424 U.S. 747 (1976);
Teamsters v . United S t a t e s , 431 U.S. 324 (1977).
M o r e o v e r , th e o r d e r o f the d i s t r i c t c o u r t
below cannot be e f f e c t i v e l y reviewed upon appeal
from a f i n a l judgment in t h i s case s in ce such a
judgment would merely conf irm that the p e t i t i o n e r s
had l o s t the very r i g h t which they were seeking to
- 23
p r o t e c t , namely the r i g h t to s e t t l e the a c t i o n
without going to t r i a l . The order w i l l unques
t i o n a b ly cause i r r e p ar ab le in ju ry to p e t i t o n e r s
and respondents s in ce i t r eq u ires them to conduct
an u n n e c e s s a r y , e x p e n s i v e , and t im e - c o n s u m in g
t r i a l .
S a n c t i o n i n g an a p p e a l in t h i s c a s e i s not
i n c o n s i s t e n t w i th the d e c i s i o n in C ooper and
Lybrand v , L iv e s a y , 437 U.S 463 (1978) , where the
Court, in not perm it t ing an appeal o f a d i s t r i c t
c o u r t ' s den ia l o f a c la s s c e r t i f i c a t i o n order ,
warned against a p p e l la t e cour ts in d i s c r im in a t e ly
th ru s t in g themselves in to the t r i a l p r o c e s s . 437
U.S at 476. What i s at issue here i s the v a l i d i t y
o f a r u l e o f law p r o m u lg a te d by the d i s t r i c t
court which a s s e r t s that the p r i n c i p l e s en u n c ia t
ed in Weber cannot l a w f u l ly be in corpora ted in to a
c l a s s a c t i o n s e t t l e m e n t . I t i s n o t an i n d i s
cr iminate in t r u s i o n in to the t r i a l p rocess to say
t h a t the o r d e r embodying t h i s r u l e o f law i s
rev iewable upon appeal.
The co n s id e r a t i o n s favor in g a p p e a la b i l i t y in
t h i s c a s e p a r a l l e l t h o s e in G i l l e s p i e v . U . S .
S tee l Corp. , 379 U.S 148 (1964 ) , where the Court
a llowed an appeal from a ru l in g o f the d i s t r i c t
cou r t s t r i k i n g var iou s a l l e g a t i o n s o f the com
p l a i n t p e r m i t t i n g r e c o v e r y , and in M e r c a n t i l e
National Bank at Dallas v. Langdeau, 371 U.S. 555
(1963) , where an appeal was permitted o f an order
by the Texas Supreme Court r e j e c t i n g the d e fen
d a n t ' s venue o b j e c t i o n s . These cases re cogn ized
that a c o l l a t e r a l o rder i s appealable when the
m eri ts o f the c o l l a t e r a l co n tr o v e rsy are separate
and apart from the meri ts o f the main a c t i o n . — ̂
In l i g h t o f t h i s C ou r t 's d e c i s i o n in United States
S t e e l w o r k e r s o f A m e r i c a , AFL-CIO-CLC v , Weber,
supra , the d i s t r i c t c o u r t ' s o rder d isapprov ing the
p r o p o s e d c o n s e n t d e c r e e d o e s not i n v o l v e the
important fa c t u a l and l e g a l i ssues r a i s e d in the
T i t l e VII a c t i o n . See Teamsters v . United S tates ,
supra.
- 24 -
I I .
THE DISTRICT COURT'S DISAPPROVAL OF THE
PROPOSED CONSENT DECREE IS APPEALABLE AS AN
INTERLOCUTORY ORDER UNDER 28 U.S.C. §1292
( a ) ( 1 ) .
Read l i t e r a l l y , § 1 2 9 2 ( a ) ( l ) , p rov id in g f o r
appeals o f i n t e r l o c u t o r y orders o f d i s t r i c t cou r ts
g r a n t i n g o r r e f u s i n g i n j u n c t i o n s , i s c l e a r l y
a p p l i c a b l e t o the o r d e r o f the d i s t r i c t c o u r t
be low. It was so he ld by the d i s s e n t in g judges
5J A p p l i c a t i o n o f Cohen req u ires that the m er i ts
o f the c o l l a t e r a l o rder not be "enmeshed in the
fa c t u a l and l e g a l i ssues compr is ing the p l a i n
t i f f ' s cause o f a c t i o n . " Mercant i le Nat. Bank v .
Langdeau, supra , 371 U. S at 558.
- 25
below. They h e ld that the order o f the d i s t r i c t
j u d g e was an i n t e r l o c u t o r y o r d e r r e f u s i n g an
i n ju n c t i o n . The con trary d e c i s i o n o f the m a jo r i ty
was based upon t h e i r b e l i e f that d e c i s i o n s o f th is
Court have put a g l o s s on the p la in meaning o f the
s t a t u t e . See Switzerland Cheese A s s o c i a t i o n , Inc .
v . E. Horne 's Market, I n c . , 385 U.S. 23 (1966 ) ;
L iber ty Mutual Ins . Co. v , W etz e l , 424 U.S 737
(1976 ) ; Gardner v, Westinghouse B roadcast ing Co . ,
437 U.S. 478 (1978) .
The m a j o r i t y o f the Court o f A p p ea ls h e l d
t h a t t h e s e d e c i s i o n s l i m i t the a p p l i c a t i o n o f
§ 1 2 9 2 (a ) (1 ) to orders that are " i n t e r l o c u t o r y " in
a s p e c i a l sense o f the meaning o f the term i n t e r
l o c u t o r y . Cases such as S w i t z e r l a n d Cheese
A s s o c i a t i o n , I n c , v . E. H o r n e ' s M arket , I n c . ,
supra ( d i s a l l o w in g an appeal o f an order denying
a motion f o r summary judgment request ing in ju n c
t i v e r e l i e f ) and L i b e r t y Mutual I n s , Co. v .
W e tz e l , supra (denying appeal o f a judgment f i x i n g
l i a b i l i t y w h i l e p o s t p o n i n g d e t e r m i n a t i o n on a
r e q u e s t f o r permanent i n j u n c t i v e r e l i e f ) were
c i t e d as a u th o r i ty f o r t h i s p r o p o s i t i o n .
P e t i t i o n e r s contend that th is C ou r t 's d e c i
s ions have set f o r th the f o l l o w in g c r i t e r i a f o r
a p p l i c a t i o n o f 1 1 2 9 2 ( a ) (1 ) . F i r s t , the order must
be p r e l i m i n a r y , i . e . , one tha t i s made b e f o r e
t r i a l and i s u n c o n d i t i o n a l . Switzerland Cheese
26
A s s o c i a t i o n v . E. Horne's Market, In c . , supra , 385
U.S at 25. Second, the order must do more than
merely d i r e c t the case to proceed to t r i a l . I d . ,
385 U.S. at 25. A ls o , Baltimore C on trac to rs , I n c .
v. Bod inger , 348 U.S 176 (1955) (an order r e f u s in g
to stay r e f e r r a l o f an issue from a r b i t r a t i o n is
not appea lab le under 1 1 2 9 2 ( a ) ( 1 ) ) .
T h i r d , th e o r d e r must s e t t l e , e i t h e r t e n
t a t i v e l y or f i n a l l y , some a spects o f the m er i ts o f
the c la im s . Switzerland Cheese A s s o c ia t i o n v . E.
H o r n e ' s M arket , I n c . , s u p r a , 385 U.S a t 25;
Gardner v . Westinghouse Broadcast ing Co. , supra ,
437 U.S. at 481-82. Fourth, the order must "pass
on the l e g a l s u f f i c i e n c y o f the c la im f o r i n j u n c -
t i v e r e l i e f . " Gardner, supra, 437 U.S. at 481.
F i f t h , the o r d e r must h a v e an " i r r e p a r a b l e "
e f f e c t . I d . , 437 U.S. at 480. F i n a l l y , the order
must not be one which can be reviewed "both p r i o r
to and a f t e r f i n a l judgment. " Id.
Whether t h e s e s i x c r i t e r i a a r e the p r o p e r
ones f o r d e t e r m i n i n g the a p p e a l a b i l i t y o f an
i n t e r l o c u t o r y decree under 51292 (a ) (1 ) and whether
an order re fu s in g approval o f a proposed consent
o r d e r e n co m p a ss in g a r e q u e s t f o r i n j u n c t i v e
r e l i e f s t a t i s f i e s these c r i t e r i a are important
i s s u e s a f f e c t i n g s u c c e s s f u l a d m i n i s t r a t i o n
o f 5 1 2 9 2 (a ) (1 ) .
27
P e t i t i o n e r s contend that each o f these s ix
c r i t e r i a i s s a t i s f i e d by the d i s t r i c t c o u r t ' s
decree d isapprov ing the proposed consent decree .
There i s no d ou b t t h a t the d e c r e e h e r e i n was
p re l im in ary , u n c o n d i t i o n a l , and that i t dec ided
something other than that the p a r t i e s must go to
t r i a l . The o r d e r e f f e c t i v e l y d e c i d e d t h a t an
a f f r im a t i v e a c t i o n plan i d e n t i c a l to that in Weber
cou ld not be used, absent p r o o f o f d i s c r im in a t i o n ,
as a b a s i s f o r sett lement o f a T i t l e VII a c t i o n .
Thus, the order had the l e g a l e f f e c t o f p rec lud ing
defendants from withdrawing t h e i r de fense o f p r i o r
d i s c r im in a t i o n , or from admitt ing the o ccurrence
o f such d i s c r im in a t i o n , and cont inu ing the l i t i g a
t i o n on that b a s i s . In t h i s l i g h t , the order o f
the d i s t r i c t c o u r t , when cons idered from the per
s p e c t i v e o f i t s l e g a l impact on de fendants ' a b i l i
ty to modify or withdraw t h e i r d e fen se , i s an a lo
gous to the s i t u a t i o n s in Sears , Roebuck & Co. v .
Mackey, 351 U.S. 427 ( 1 9 5 6 ) (appeal i s a l low ab le
from order d i sm iss in g two o f p l a i n t i f f ' s c la im s)
and in Cold Metal Process Co. v. United Eng'r &
Foundry Co. , 351 U.S. 445 (1956) (appeal al lowed
o f o r d e r d i s m i s s i n g c o u n t e r c l a i m where i t was
based on t ra n sa c t i o n s s im i la r t o those in p l a i n
t i f f ' s c l a i m s ) .
- 28 -
The o r d e r d i s a p p r o v i n g the c o n s e n t d e c r e e
touched on the merits o f p l a i n t i f f s ' c laims in a
u n iq u e and s i g n i f i c a n t way. I t p r e l i m i n a r i l y
re s o lv e d the i s sue o f the l e g a l s u f f i c i e n c y o f
the T i t l e VII cla ims by h o ld in g that the h i s t o r y
o f de fen d an ts ' employment p r a c t i c e s and p o l i c i e s
d i d not d i s c l o s e an a d e qu a te l e g a l b a s i s f o r
conc lud ing that defendants had ever d is cr im inated
against b la c k s . Although t h i s aspect o f the order
might c o n c e iv a b ly be rev iewable upon appeal from a
f i n a l judgment, that aspect o f the judgment which
depr ived the p a r t i e s o f the oppor tu n ity to fash ion
a sett lement in accordance with Weber cannot be so
reviewed. F i n a l l y , the order had an i r r ep ar ab le
e f f e c t on the p a r t i e s by f o r c i n g them to undergo
an expens ive , unwanted, and unwarranted, t r i a l .
I l l
RULE 2 3 ( e ) DOES NOT AUTHORIZE A FEDERAL
DISTRICT COURT TO DISAPPROVE A SETTLEMENT
MEETING THE REQUIREMENTS OF WEBER ON THE
GROUND THAT THE CLASS MEMBERS ARE NOT NECES
SARILY VICTIMS OF DISCRIMINATION BY THE
DEFENDANTS
The p a r t i e s ' e v a lu at ion o f d i s c o v e r y data and
th e i r assessement o f the m er i ts , e s ta b l i s h e d a
b a s i s f o r s e t t l e m e n t o f the a c t i o n on terms
r e a s o n a b l e and f a i r . The n e g o t i a t i o n s f o r
the sett lement were complex and d i f f i c u l t . For
29
two m on th s , from F e br u ar y 1977 to March 1977,
counsel labored at t ry in g to f ind terms which were
a c c e p t a b l e to a l l a f f e c t e d . In the p r o p o se d
d e c r e e , each p a r t y s t a t e d th a t i t was n o t a d
m i t t in g that i t p re v io u s ly s ta ted p o s i t i o n was
6 /
wrong.— Based upon the data d i s c l o s e d through
d i s c o v e r y , r e a s o n a b l e s e t t l e m e n t r e q u i r e d the
c o r r e c t i o n o f the v e s t i g e s o f e a r l i e r d i s c r im in a
t i o n . The proposed consent decree purported to do
t h i s by undoing the e f f e c t s o f the d i s c r im in a to ry
p r a c t i c e s . Defendants were s p e c i f i c a l l y en jo ined
to take a c t i o n which had the e f f e c t o f r e v e r s in g
the d i s c r im in a to r y r u l e s .
6 / Thus, the f i n a l d r a f t o f the agreement pro
v ided that
Defendants ex p r e s s ly deny any v i o l a t i o n
o f the F o u r t e e n t h Amendment o f the U nited
States C o n s t i tu t i o n , T i t l e VII o f the C i v i l
Rights Act o f 1964, as amended, or any o ther
equal employment law, r e g u l a t i o n or order .
T h is D e cre e and Consent h e r e t o does not
c o n s t i t u t e a f i n d i n g o r a d m is s i o n o f any
unlawful or d i s c r im in to r y conduct by d e fen
dants .
P l a i n t i f f s ’ consent to t h i s Decree does
not c o n s t i t u t e a f in d in g or admission that
any o f the employment p r a c t i c e s o f the
Richmond L e a f Department o f the American
T o b a c c o Company, a d i v i s i o n o f American
Brands, I n c . , are unlawful.
- 30
The a c t i o n o f the d i s t r i c t court in r e j e c t i n g
f o r the reasons which i t did the p a r t i e s ' j o i n t
motion f o r approval o f the proposed consent decree
has s e r i o u s l y undermined t h i s C o u r t ' s d e c i s i o n in
United Steelworkers o f America v. Weber, supra , as
w e l l as undermined the s u c c e s s fu l implementation o f
Congress ional p o l i c i e s fa v or in g vo luntary s e t t l e
ment o f d i s c r im in a t i o n c a se s . See Alexander v .
Gardner-Denver C o . , supra, 415 U.S. at 44. In i t s
recent d e c i s i o n in Weber, t h i s Court took great
pains to emphasize to p r iv a te p a r t i e s covered by
T i t l e VII that they c o u ld , without fea r o f be ing
he ld in v i o l a t i o n o f T i t l e VII , v o l u n t a r i l y nego
t i a t e and implement r a c e - c o n s c i o u s , remedial plans
whenever those plans were prop er ly designed so that
they d id no more than c a rr y out the e s s e n t i a l pur
poses o f T i t l e VII.
Those purposes are b a s i c a l l y as f o l l o w s : (1 )
to break down o ld patterns o f r a c i a l h ie r a r c h y ;
(2 ) t o "open employment o p p o r tu n i t i e s f o r Negroes
in o c c u p a t i o n s w hich have b e e n t r a d i t i o n a l l y
c l o s e d to them," Remarks o f Senator Hubert Hum
phrey, 110 Cong. Rec . 6548; (3 ) to e l im in ate i n
stances o f mani fest r a c i a l b a la n c e ; and (4 ) to
p r o h i b i t undue e f f o r t s to maintain r a c i a l b a l
ances . This Court he ld in Weber that a f f i r m a t iv e
a c t i o n p la n s e f f e c t u a t i n g t h e s e p u r p o s e s were
31
l a w f u l as l o n g as t h e y d i d not u n n e c e s s a r i l y
trammel upon the in t e r e s t s o f white employees by
r e q u i r i n g t h e i r d i s c h a r g e or by c r e a t i n g an
a bso lu te bar to t h e i r advancement or by perm itt ing
a g rea ter percentage o f m in or i ty employees to be
b e n e f i t t e d under the plan than which e x i s t s in
the l o c a l l a b o r f o r c e . Such p la n s were a l s o
r e q u i r e d t o be te m p o r a r y s i n c e o t h e r w i s e they
would f o r e s e e a b ly opera te to maintain an improper
r a c i a l ba lance .
A l th o u g h a d e c i s i o n on the c o r r e c t n e s s
o f the d i s t r i c t c o u r t ' s d isapprova l o f the pro
p o s e d c o n s e n t d e c r e e n e c e s s a r i l y r a i s e s the
genera l issue o f what c r i t e r i a are to govern an
e x e r c i s e o f the d i s t r i c t c o u r t ' s power to accept
o r r e j e c t s e t t l e m e n t s under Rule 2 3 ( e ) , s e e
Fl inn v.FMC Corporat ion , 528 F.2d 1169 (4th Cir.
1975), c e r t , d e n ie d , 424 U.S. 969 (1976 ) ; P a t te r
son v . Newspaper & Mail D e l . U. o f N.Y. & Vic . ,
514 F . 2d 767 (2d C ir . 1975), c e r t , d e n ie d , 427
U.S 911 (1976 ) , the only s p e c i f i c i s sue which must
be determined here is the power o f the d i s t r i c t
c o u r t to d i s a p p r o v e a p r o p o s e d c o n s e n t o r d e r
merely because i t prov ides f o r an a f f i r m a t iv e
a c t i o n plan based on p r i n c i p l e s approved in Weber
and i n s t i t u t e d on b e h a l f o f m in or i ty employees who
32
have not been shown to be v i c t im s o f d i s c r im in a
t i o n by de fendants .
Put another way, the p r e c i s e qu est ion which
has to be d e c i d e d i s w hether Rule 2 3 ( e ) can
be u t i l i z e d by a d i s t r i c t court to e f f e c t i v e l y
" o v e r r u l e " t h i s C o u r t ' s d e c i s i o n in Weber and to
f r u s t r a t e f e d e r a l p o l i c i e s f a v o r i n g v o l u n t a r y
s e t t l e m e n t o f l e g a l d i s p u t e s . Subsumed under
t h i s q u e s t i o n i s the q u e s t i o n o f w h eth er the
d i s t r i c t c o u r t , under the gu ise o f e x e r c i s i n g i t s
d i s c r e t i o n under Rule 2 3 ( e ) , can determine, as
i t d i d , t h a t , as a m a t t e r o f f e d e r a l la w , t h e
implementation o f a remedial scheme o f p r e f e r e n
t i a l employment f o r m i n o r i t i e s based upon p r in
c i p l e s se t f o r th in Weber i n f r in g e thereby , in the
absence o f p r o o f o f d i s c r im in a t i o n by defendants
against m in or i ty employees, upon the c o n s t i t u
t i o n a l r i g h t s and s t a t u t o r y r i g h t s o f w h i t e
e m p l o y e e s . P e t i t i o n e r s c o n t e n d th a t such an
a c t i o n by a d i s t r i c t cou r t i s an abuse o f power
under Rule 23(e) which re q u i re s immediate c o r r e c
t i o n .
33
C O N C L U S I O N
For Che reasons set f o r t h h ere in , p e t i t i o n e r s
request that t h e i r p e t i t i o n be granted.
R e s p e c t f u l l y submitted,
HENRY L. MARSH, I I I
WILLIAM H, BASS, I I I
RANDALL G. JOHNSON
H i l l , Tucker & Marsh
214 East Clay Street
P.0. Box 27363
Richmond, V i r g in ia 23261
JOHN W. SCOTT, JR.
615 Caro l ine Sreet
F reder icksburg , V i r g in ia 22401
JACK GREENBERG
JAMES M. NABRIT, I I I
BARRY L. GOLDSTEIN
NAPOLEON B. WILLIAMS, JR.
Suite 2030
10 Columbus C i r c l e
New York, New York 10019
COUNSEL FOR PETITIONERS
APPENDIX
Decisions of the Courts Below
Opinion of the United States Court of Appeals
UNITED STATES COURT OF APPEALS
F o b t h e F o u r t h C ir c u it
No. 77-2260
F r a n k L . C a r s o n , L a w r e n c e H a t c h e r , S t u a r t E. M i n e s ,
v.
A p p e lla n ts ,
A m e r ic a n B r a n d s , I n c ., t / a T h e A m e r ic a n T o b a c c o C o m
p a n y ; L o c a l 1 8 2 , T o b a c c o W o r k e r s I n t e r n a t i o n a l ,
T o b a c c o W o r k e r s I n t e r n a t i o n a l U n i o n ,
A p p e lle e s .
Appeal from the United States District Court
For the District of Richmond, Virginia
Decided En Banc September 14, 1979
Reported at 606 F.2d 420
Before
H a y n s w o r t h , C h ie f J u d ge,
a n d W i n t e r , B u t z n e r , R u s s e l l , W i d s n e r ,
H a l l a n d P h i l l i p s , C ircu it J u d ges.
K. K. H a l l , C ircu it J u d g e :
Plaintiffs seek an interlocutory appeal under 28 U.S.C.
§ 1292(a)(1) of the district court’s refusal to enter a con
sent decree agreed to by the named parties in a Title VII
class action.
l a
2a
Tlie suit is based on claims of race discrimination and
is brought against employer and union on behalf of black
workers and black applicants for employment at an Amer
ican Tobacco Company plant in Richmond, Virginia, The
decree would grant money damages and hiring and senior
ity preferences to black employees and would set a goal re
quiring the employer to give preference to blacks in hiring
for supervisory positions until a certain number of qualified
blacks were employed. The decree was negotiated by repre
sentative plaintiffs, and it provides for notice to all class
members.
The named plaintiffs contend that this relief is injunctive
in nature, and, because the district court refused to enter
the decree, its order is immediately appealable under
§ 1292(a)(1) as a denial of injunctive relief. We disagree.
The district court’s order refusing entry of the decree
does not deny any relief, whatever its nature. It merely
requires the parties to either revise the decree or proceed
with the case by trial or motions for summary judgment.
The immediate consequence of the order is continuation of
the litigation and, because the merits of the decree can be
reviewed following final judgment, we think it is not an
appealable order under § 1292(a) (1). Accordingly, we dis
miss the appeal.
I .
In F lin n v. F M C C orp ora tion , 528 F.2d 1169 (4th Cir.
1975), cert, den ied , 424 U.S, 967, 96 S.Ct. 1462, 47 L.Ed.2d
734 (1976), we heard the appeal of individual class plain
tiffs alleging that the district court abused its discretion
by entry of a consent decree in a Title VII sex discrimina
tion class action. There, the overwhelming majority of
class members had voted to adopt the decree, and the dis-
Opinion of the United States Court of Appeals
3a
trict court entered it on the “eve of trial.” With scholarly
care, Judge Russell surveyed various interests supporting
entry of the decree and posited the rule that, when a dis
trict court is presented with a consent decree, it should
view the merits of the decree in light favorable to its
entry. That is, it should, without requiring technical per
fection or legal certitude, determine whether the law and
the facts of record argu ably support its terms. Under this
standard, he identified factors which the district court
should consider in exercising its discretion. These included
“the extent of discovery that has taken place, the stage of
the proceedings, the want of collusion in the settlement,
and the experience of counsel who may have represented
plaintiffs in the negotiation.” Id . at 1173.
Plaintiffs argue that the district court erred in failing to
consider the proposed decree under the liberal standards of
F lin n 1 and that its refusal to enter the decree is immedi
ately appealable. Although we think the district court
should have reviewed the proposed decree under F lin n , we
do not think its refusal to approve the decree is a matter
properly within our jurisdiction prior to final judgment.
In F lin n , the district court’s en try of the decree termi
nated the action, whereas here the district court’s order
refusing it has no such effect—it continues the proceedings,
making our review of it an interlocutory appeal.
II.
As a general rule appeals of right from interlocutory
trial court decisions are not favored. '28 U.S.C. § 1291.
1 Counsel in this ease failed to cite Flinn to the district court in
their three separate memoranda of law filed in support of the pro
posed decree and failed to move the court following its order to
reconsider in light of that case. Instead, they immediately brought
this appeal.
Opinion of the United States Court of Appeals
4a
B a ltim o re C on tra cto rs , In c . v. B o d in g er , 348 U.S. 176, 75
S.Ct. 249, 99 L.Ed. 233 (1955); C o o p ers $ L y b ra n d v. L iv e -
sa y , 437 U.S. 463, 98 S.Ct. 2454, 2459, 57 L.Ed.2d 351 (1978);
G a rd n er v. W estin g h o u se B roa d ca stin g C o., 437 U.S. 478,
98 S.Ct. 2451, 2453, 57 L.Ed.2d 364 (1978). They disrupt
the trial process, slow the course of litigation and create
unnecessary multiple appeals. A single appeal following
final judgment facilitates orderly litigation and comprehen
sive appellate review of all issues presented, many of which
are dependent upon or related to other issues in the suit.
After final judgment, the fact issues have been settled in
the appropriate forum, and appellate review can he dis
positive of all issues in the case. S ee, C o o p ers & L yb ra n d
v. L iv esa y , 98 S.Ct. at 2460-61.
In the interests of justice, appeals of right from inter
locutory orders are allowed when the delay in hearing an
appeal after final judgment poses some irreparable conse
quence, G ard n er v. W estin g h o u se B roa d ca stin g C o., 98 S.Ct.
at 2453, or when the issue to be determined is sufficiently
collateral to the ongoing litigation that no disruption of the
trial process will attend early appellate review, se e C ohen
v. B en eficia l In d u stria l L oa n C orp ., 337 U.S. 541, 546-47, 69
S.Ct. 1221, 93 L.Ed. 1528 (1949); C o o p ers & L yb ra n d v.
L iv esa y , 98 S.Ct. at 2459.
Special statutory exceptions to the final judgment rule
are set forth in 28 U.S.C. § 1292(a). Plaintiffs argue that
characterization of the refused relief as “injunctive” is
sufficient to meet the plain terms of § 1292(a)(1), which
reads in pertinent part,
The court of appeals shall have jurisdiction of appeals
from: (1) Interlocutory orders of the [district courts]
granting, continuing, modifying, refusing or dissolving
Opinion of the United States Court of Appeals
5a
injunctions, or refusing to dissolve or modify injunc
tions. . . .
But a mere labeling of relief is not sufficient. S ee C ity
o f M orga n tow n , W . Va. v. R o y a l In s . C o., 337 U.S. 254, 258,
69 S.Ct. 1067, 93 L.Ed. 1347 (1949). Courts look to the
consequence of postponing appellate review following final
judgment and weigh the need for immediate appeal against
the important judicial interests militating against piece
meal review. S ee G ard n er v. W estin g h o u se B roa d ca stin g
C o., 98 S.Ct. at 2454; C o o p ers & L y b ra n d v. L iv esa y , 98
S.Ct. at 2460. This test is applied to appeals in class actions
as well as to those in ordinary litigation.2 Under this test,
we find no appeal of right from orders refusing consent
decrees at any time before final judgment.
III.
The consequence of the district court’s order is not ir
reparable. No right is forfeited as a result of delayed
review. Here, injunctive relief was not finally denied; it
was merely not granted at this stage in the proceedings.
S ee L ib e r ty M u tu al In su ra n ce C om p a n y v. W e'tsel, 424 U.S.
737, 744-45, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976)/ Like the
denial of a motion for summary judgment which, if granted,
would include injunctive relief, the denial of this consent
decree decided “only one thing—that the case should go to
2 A s the Court noted in Coopers Lybrand v. Livesay, 98 S.Ct.
at 2459:
There are special rules relating to class actions and, to that
extent, they are a special kind of litigation. Those rules do not,
however, contain any unique provisions governing appeals.
The appealability of any order entered in a class action is de
termined by the same standards that govern appealability in
other types of litigation.
Opinion of the United States Court of Appeals
6a
trial.” S w itzerlan d C h eese A sso c ia tio n , In c . v. E . H o rn e ’ s
M a rk e t , In c ., 385 U.S. 23, 25, 87 S.Ct. 193, 195, 17 L.Ed.2d
23 (1966).
In G ard n er v. W estin g h o u se B roa d ca stin g C o., 437 U.S.
478, 98 S.Ct. 2451, 57 L.Ed.2d 364 (1978), the Supreme
Court held that the pretrial denial of class certification in
a Title YII case was not appealable under § 1292(a)(1) as
a. denial of injunctive relief. In that case, which involved
allegations of sex-based discrimination, the complainant
sought broad injunctive relief for the class similar to the
relief proposed in the decree before us. The Court reasoned
that the pretrial order denying class certification was not
one of irreparable consequence since it could be reviewed
at any stage of the proceedings either before or after final
judgment, did not affect the complainant’s personal claim
for injunctive relief, and did not pass on the legal sufficiency
of any claim for injunctive relief. Id . 98 S.Ct. at 2453-54
and notes 7, 8 and 9 (citing S w itzerla n d C h eese ).
TV.
The analogous consequences of a district court’s disap
proval of a settlement in a class action and its refusal to
grant summary judgment were considered by the Second
Circuit in S eiga l v. M err ick , 590 F.2d 35 (2nd Cir. 1978).
The issue there was whether, in a stockbroker derivative
action, the court’s order refusing settlement was appealable
before final judgment.
Relying upon the analysis in C o o p ers & L y lr a n d v. L iv e -
sa y , 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), a
case decided the same day as G ardner, the S eiga l court
discussed the judicial and private interests always present
where the rights of represented and unrepresented indi
viduals may be compromised by the court’s approval of a
Opinion of the United States Court of Appeals
7a
settlement. The court explained the purpose of requiring
class action settlements to be presented to district courts
under Fed.E. Civ.Proe. 23.1.
[A]n order disapproving a settlement . . . is based,
in part, upon an assessment of the merit of the posi
tions of the respective parties, and permits the parties
to proceed with the litigation or to propose a different
settlement.
A settlement in an ordinary civil litigation is nor
mally the sole concern of the parties. In stockholder
derivative actions, on the other hand, because of the
vicarious representation involved, the court has a duty
to perform before an action can be “settled.” . . . This
approval cannot be a rubber stamp adoption of what
the parties alone agree is fair and equitable.
S eiga l v. M errick , 590 F.2d at 37-38. The court pointed out
that disallowing appeals of right from each refusal to enter
a settlement had the practical effect of enhancing the dis
trict court’s control over the litigation.
[T]he denial of one compromise does not necessarily
mean that a “sweetened” compromise may not be ap
proved. The management of a derivative suit gives
the trial judge a chance not only to disapprove a com
promise but to edge the parties toward more equitable
terms.
Id. at 39.
The S eiga l court reasoned that a rule allowing appeals
of right from orders refusing entry of settlements was
unjustified. It would interrupt the litigation and thrust ap
pellate courts indiscriminately into the trial process with
Opinion of the United States Court of Appeals
8a
out appreciable benefit to class members whose interests
were to be protected.
Therefore, the court concluded that such an order was
not appealable before final judgment. S ee , Note, “ R ecen t
D ev e lo p m e n ts : A p p ea la b ility o f D is tr ic t C ou rt O rd ers D is
a p p rov in g P ro p o se d S ettlem en ts in S h a reh o ld ers D ep r iv a -
t iv e S u its,” 32 Yand. L.E. 985, 998-1001 (1979). C on tra ,
N orm a n v. M c K e e , 431 F.2d 769, 772-74 (9th Cir. 1970) cert,
denied , I S I v. M e y ers , 401 U.S. 912, 91 S.Ct. 879, 27 L.Ed.2d
811 (1971).
V.
We think this Title VII interlocutory appeal should be
dismissed. Our review of this pretrial order has halted the
litigation for over two years pending review of the district
court’s exercise of discretion. Given this disruption and
the difficult burden on appeal of demonstrating an abuse
of discretion, plaintiffs have identified no consequence re
quiring appellate review before final judgment. We per
ceive none. Instead, we think our review is best left to
follow final judgment.
Under the F lin n analysis, the named parties may present
a proposed decree to the district court in any form and at
any stage in the proceedings. If one decree is refused an
other may be proposed. At any time the district court can
reconsider its refusal to enter a decree. S ee C oh en v. B e n e
ficial In d u stria l L oa n C o rp o ra tio n , 337 U.S. at 547, 69 S.Ct.
1221.
When a district court objects to the terms of a decree,
alternative provisions can be presented, and perhaps a dis
approved decree may be entered with further development
of the record. If the district court refuses a decree because
Opinion of the United States Court of Appeals
it is presented too early in the litigation, it may be later
approved, perhaps following a decisive vote by class mem
bers. Whatever the district court’s reasons for refusing a
decree, appeals of right from those refusals would encour
age an endless string of appeals and destroy the district
court’s supervision of the action as contemplated by Fed.R.
Civ.Proc. 23(e).
A rule allowing review after final judgment, on the other
hand, facilitates the district court’s supervision of the liti
gation and enhances appellate review. The district court’s
consideration and reconsideration of various proposed de
crees-—in whatever form and whenever presented during
the litigation— can be reviewed effectively after final judg
ment. A single appellate review of all alternative proposals
would be dispositive of the F lin n issue.3 Also, after final
judgment, important legal questions would rest on a firm
factual setting with the parties arguing the importance of
the law and facts as they appeared when the decree was
proposed. Where alternative or revised decrees have been
presented, the parties could advocate on appeal the alterna
tive most favorable to their positions in light of the law
and facts appearing when it was presented.. Such argument
is vital when appellate courts must authoritatively opine
about important unsettled legal issues of the highest social
concern in the amorphous context of reviewing a trial
Opinion of the United States Court of Appeals
8 For all our consideration of the merits of this decree, if we al
lowed the appeal our decision would not be dispositive. See Coopers
& Lybrand v. Livesay, 98 S.Ct. at 2460-61; Seigal v. M errick, 590
F.2d at 39. The ultimate composition of the decree would remain
an open matter pending response by individual class members to
the class notice. Although the named parties are bound to the terms
of the decree as proposed, in fairness to class members, we think our
approval of it would have to be conditioned upon acceptance of its
terms by at least a majority of the members.
10a
court’s exercise of discretion.4 In all, we think the admoni
tion of Judge Clark is apt,
A district judge’s orders advancing a case to trial
ought not to be critically examined and re-examined by
the cumbersome method of. appeal before he has ap
proached the stage of adjudication. * * * I believe this
an intolerable burden for us, an improper and uncer
tain interference with trial court discretion, and a con
fusing invitation to indiscriminate appeals in the fu
ture—all contrary to settled federal law against
piecemeal appeals.
P e te r P a n F a b r ic s , In c. v. D ix o n T ex ti le C orp ., 280 F.2d
800, 805-06 (2nd Cir. 1960). (Judge Clark dissenting).
VI.
In conclusion, the district court’s discretionary decision
to send the parties to trial, in lieu of granting immediate
injunctive relief before the facts are settled, is not a ruling
of irreparable consequence. Plaintiffs may proceed to trial
with no loss of either their claims for final injunctive relief
or their right of appellate review of the F lin n issue. Short
of going to trial, the parties may propose alternative de
crees to the district court, one of which may be entered.
Appellate review of the order is best effected following final
judgment. Such review preserves the trial court’s exclusive
control over the progress of the litigation and facilitates its
supervision of the class action.
4 As noted by the Supreme Court in Coopers & Lybrand v. Live-
say, 98 S.Ct. at 2461, Congress wisely provided in § 1292(b) for
appellate review of important legal issues before final judgment
only as a matter of discretion by the courts involved. Such review
is allowed with approval of both the district court and the court of
appeals.
Opinion of the United States Court of Appeals
11a
T h e r e f o r e , w e h o ld th a t th e d i s t r i c t c o u r t ’ s o r d e r r e f u s
in g e n t r y o f th e p r o p o s e d c o n s e n t d e c r e e is n o t a p p e a la b le ,
a n d , a c c o r d i n g ly , th e a p p e a l is d is m is s e d .
A p p ea l D ism issed .
Opinion of the United States Court of Appeals
W in t e r , Circuit Judge, with whom H a y n s w o r t h , Chief
Judge, and B u t z n e r , Circuit Judge, join, dissenting:
In this Title VII class action, the district court declined
to approve and to enter a consent decree which the parties
had negotiated in settlement of the action: Plaintiffs ap
peal. Unlike the majority, we think that the order denying
approval of the settlement and declining to enter it was
appealable. As to the merits, we conclude that in the main
the district court abused its discretion in declining to ap
prove and enter the decree. We would require that such
approval be given, although we would authorize the district
court to require a modification of the decree with respect to
the notice to be given certain members of the subclass whose
alleged rights are to be abandoned as part of the settlement.
W e t h e r e f o r e r e s p e c t f u l l y d is s e n t .
I.
This Title YII class action was brought against the em
ployer, American Brands, Inc. (American) and Tobacco
Workers International Union and its Local 182 (union) on
behalf of black employees and black persons who sought
employment at American’s Richmond, Virginia, leaf de
partment. The complaint contained general allegations
that defendants denied equal opportunities for hiring, pro
motion, transfer and on-the-job training for blacks, thus re
stricting them to lower paying and less desirable jobs, that
defendants pay lower wages to blacks for like work than
12a
they pay to white employees, that the -union has failed to
represent blacks fairly, has acquiesced in discrimination
against them and has entered into collective bargaining
agreements intended to discriminate against them, and that
the defendants have disciplined and discharged black em
ployees solely because of their race.
After answers were filed, the parties engaged in extensive
discovery for a period exceeding one year. The discovery
included the taking of nineteen depositions and the analysis
of boxes of written material tendered in response to some of
the six sets of interrogatories. By March 1, 1977, the scope
of the action was restricted; and on that date the district
court, pursuant to F.R.Civ.P. 23(b)(2), certified a class
consisting of:
1. All black persons, whether currently employed or not,
who were seasonal employees of American Tobacco
Company’s Richmond Leaf Plant on or after Sep
tember 9, 1972 ; and
2. All black persons who applied for seasonal employ
ment at the American Tobacco Company’s Richmond
Leaf Plant at any time on or after September 9, 1972.
The facts, accepted by the district court for the purpose
of deciding whether to approve and enter the decree, were
that American operates the Richmond Leaf Department
for the purpose of processing and storing leaf tobacco. It
has two types of employees: seasonal, whose period of
employment is between six and nine months each year, and
regular, who are employed full-time for the entire year.
The union has exclusive bargaining rights for all hourly-
paid production unit positions.
Opinion of the United States Court of Appeals
13a
American employs approximately 150 seasonal employ
ees, all of whom, as of June 2, 1977, were black, and ap
proximately 100 regular employees, of whom 66% were
black. Plaintiffs are not aware of any white individuals
who have ever been employed as seasonal employees.
Prior to September 1963, the regular job classifications
of truck driver, watchman, maintenance storage, and boiler
operator at the Leaf Plant were reserved for whites only.
As of February 15, 1976, these positions were staffed as
follows:
Opinion of the United States Court of Appeals
P o sitio n W h ite s B la ck s
Truck Drivers 5 4
Watchmen 15 1
Maintenance Storage 1 0
Boiler Operators 0 3
Regular employees have the right to obtain any perma
nent position for which the union has bargaining rights
within the Richmond Leaf Department. Seasonal employ
ees have the right to obtain any seasonal position for which
the union has bargaining* rights within the Richmond Leaf
Plant. Seasonal employees may transfer to positions in
regular classifications only when no regular employee de
sires that position. Should the seasonal employee transfer
to a regular position, he loses all of his seniority and is
treated as a new hire for seniority purposes. Separate
seniority rosters are maintained for regular and for sea
sonal employees.
When a seasonal employee transfers to a regular posi
tion, he is placed at the bottom of the regular seniority
roster irrespective of the number of years he has worked
as a seasonal employee with American. This loss of senior
14a
ity affects Ms status for promotions, demotions, lay-offs,
recalls and vacations, and, in short, the principal terms
and conditions of his employment.
Since 1971, the vast majority of applicants and new
hires at all of American’s locations in the Richmond area
have been black, as indicated by the following chart:
A p p lica n ts N ew M ires
Opinion of the United States Court of Appeals
Y ea r B la ck s W h ites B la ck s W h ites
1971 97 1 88 1
1972 118 5 97 2
1973 94 4 93 1
1974 71 7 64 2
1975 77 3 22 2
The racial composition of the production unit at the
Richmond Leaf Department is as follows:
R eg u la r S eason a l
E m p lo y e e s E m p lo y e e s
Y ea r W h ite s B la ck s W h ite s B la ck s
1968 41 52 — 116
1970 40 59 — 175
1973 40 56 — 176
1976 37 57 — 135
Of the 35 supervisory positions at American’s Richmond
Leaf Department as of April 5, 1976, seven, or 20% were
filled by blacks. Of the 229 persons in hourly paid produc
tion unit jobs at the Richmond Leaf Department in that
same year, 192, or 84% were black.
The consent decree was negotiated by counsel during the
months of February and March, 1977. Agreement was
15a
reached less than a week before the trial of the case was
scheduled to begin. Counsel were all thoroughly experi
enced in Title VII class action litigation, including, but not
limited to, such suits in the tobacco industry.
The proposed consent decree contained five substantive
provisions:
1. Every current and future regular hourly-paid produc
tion employee would be credited with seniority for
actual time worked as a seasonal employee. Thus, sea
sonal employees would not lose seasonal seniority by
transferring to regular positions and the seniority de
terrence to transfers from seasonal to regular em
ployment would be removed.
2. Regular employees who successfully served a pro
bationary period as seasonal employees would not be
required to serve another probationary period to be
come eligible for medical and sick benefits. Again, a
deterrence to transfers from seasonal to regular em
ployment was removed.
3. In the event that vacancies in hourly-paid permanent
production job classifications are not filled by regular
production employees, seasonal production employees
will be given the opportunity to fill them before there
is hiring from the outside. This gives seasonal em
ployees the opportunity to bid on vacancies in regular
production jobs, some of which were at one time re
served for whites only, before any outside hiring.
4. Seasonal employees shall have the opportunity to bid
on vacancies in the watchman job classification prior
to hiring from the outside. This provision duplicates
“3,” except that it is restricted to the watchman classi
Opinion of the United States Court of Appeals
16a
fication. The watchman classification was probably
given separate treatment because as of February 15,
1976, there had been less black penetration than in any
other formerly all-white classification.
5. A goal is set for the Leaf Department for the filling
of Foreman and Assistant Foreman supervisory posi
tions with qualified blacks until one-third of such
positions are filled with blacks. The date of December
31,1980 is fixed as the date for accomplishment of this
goal.
With respect to monetary claims of individual members
of the class, the consent decree recites that there was no
discriminatory hiring and therefore the members of Class
2 (black persons who applied for seasonal employment on
or after September 9, 1972, but were not hired) are entitled
to no monetary relief. By contrast, those falling into Class
1 may be entitled to monetary relief and the procedures for
proving and asserting a claim are specified. Notice of the
proposed decree will be given to members of Class 1 with
an opportunity for them to object before the decree becomes
final. No notice is to be given to members of Class 2 not
withstanding that the decree adversely adjudicates their
claim to monetary relief.
After all counsel tendered the consent decree, the district
court conferred with counsel and required them to file
memoranda of facts and of law in support of the decree.
After the memoranda were filed and considered, the district
court filed its memorandum, disapproving the consent de
cree and declining to enter it.
The major premise of the district court’s memorandum
was that it should neither approve nor enter a consent de
cree that perpetuates, promulgates or acquiesces in dis
Opinion of the United States Court of Appeals
17a
crimination on the basis of race. The district court then
made a general review of the decided cases construing Title
YII and some of its legislative history; and after deducing
what it thought were applicable general principles, it
turned to a consideration of the five substantive provisions
of the proposed decree. It disapproved of giving seniority
credit for seasonal employment, because seasonal em
ployees have always been black; and therefore the effect of
giving seniority credit for seasonal employment will be to
give preferential treatment on the basis of race in violation
of Title YII. For the same reason, it disapproved of the
provision excusing regular employees from a probationary
period wdien they had successfully served a probationary
period as seasonal employees. Similarly, the provisions
giving seasonal employees a right to bid on vacancies in
hourly-paid permanent production job classifications and
the watchman classification before hiring from the outside
were disapproved as illegal preferential treatment of blacks
solely on the basis of race since only blacks were seasonal
employees. Finally, the district court construed the goal
for filling the supervisory force as an illegal racial quota
and disapproved it.
II.
We consider first the question of our jurisdiction. We do
so in the light of the congressionally articulate policy to
redress discrimination in employment “by informal meth
ods of conference, conciliation, and persuasion.” 42 U.S.C.
§ 2000e-5(b). This policy, in our view, favors settlement of
claims of discrimination in employment. When, as here,
the parties’ settlement of their dispute has been rejected
by the district court, there is a compelling reason to review
the propriety of the rejection if review is arguably per
mitted under established appellate jurisdiction.
Opinion of the United States Court of Appeals
18a
The order from which this appeal is taken is interlocu
tory. We agree with the majority that there is no right to
appeal every interlocutory decision of a district court.
However, there are exceptions to this general rule, both
judge-made, i.e., C oh en v. B en eficia l In d u stria l L o a n C orp .,
337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and stat
utory. The significant exception to be considered here is
that contained in 28 U.S.C. § 1292(a) (1):
The courts of appeals shall have jurisdiction of ap
peals from:
(1) Interlocutory orders of the district courts . . .
granting, continuing, modifying, re fu s in g or dissolving
in ju n ction s, or refusing to dissolve or modify injunc
tions. . . . (Emphasis added.)
It is our view that the order declining to approve the
settlement was an order refusing an injunction. As we have
earlier set out, the settlement would have required Ameri
can and the union to take a number of affirmative steps. It
would have required that hourly-paid production employ
ees be given seniority for service as seasonal employees; it
would have required that such employees be eligible for
medical and sick benefits without serving another proba
tionary period; it would have given seasonal employees a
preference for employment in certain permanent positions;
it would have given seasonal employees a preference over
outsiders in bidding for vacancies in the watchman classifi
cation ; and it would have fixed a goal in the hiring of quali
fied blacks in the positions of Foreman and Assistant
Foreman. The parties themselves termed the proposed
consent decree as one “enjoining” American and the union
from discriminating against black employees and titled the
Opinion of the United States Court of Appeals
19a
five affirmative actions that we have described as “Injunc
tive Belief For the Class.”
In L ew is v. T ob a cco W o r k e r s ’ In tern a tion a l U nion , 577
F.2d 1135 (4 Cir. 1978), cert, den ied , 439 TJ.S. 1089, 99 S.Ct.
871, 59 L.Ed.2d 56 (1979), a panel of the court held that
an interlocutory order in an employment discrimination
case which adopted guidelines proposed by plaintiffs was
appealable. Those guidelines required the employer and
the union to supply a list of members eligible for back
pay, required them to pay interim attorneys’ fees, required
the development of job descriptions, required that certain
transfers of employees not be limited, required the hiring
of permanent and seasonal employees, required that em
ployees be advised of vacancies, and required that em
ployment applications remain viable for not less than
one year. In rejecting the argument that the order was
not appealable because it was not a final order granting
relief, the court said:
We believe the guidelines, requiring the defendants to
act in some instances and forbidding them to act in
others, to be an injunction. We do not agree with
the plaintiffs’ position that the guidelines, although
requiring present affirmative action or restraint, are
yet unappealable. (Footnote eliminated.)
577 F.2d at 1139.
Surely L ew is was correctly decided, and surely it is
indistinguishable from the instant case. The proposed
consent decree was an injunction,1 and had it been entered
it would have been appealable under L ew is . The refusal 1
1 W e note that even the majority concedes that the consent decree
was an injunction. “Here, injunctive relief was not finally denied;
it was merely not granted at this stage in the proceedings.” Ma
jority op. p. 423.
Opinion of the United States Court of Appeals
20a
to enter the proposed consent decree is equally appealable,
because § 1292(a)(1) authorizes an appeal from an inter
locutory order “refusing” an injunction.
We are at a loss to understand why the majority fails
to conclude that L ew is decides this case and why the ma
jority holds the order in the instant case non-appealable.
Certainly the holding in S eiga l v. M errick , 590 F.2d 35 (2
Cir. 1978), does not support that result. S eiga l concerned
the settlement of a derivative stockholders’ suit. The grant
ing of stock options in exchange for certain cash consid
eration bears little resemblance to the entry of an injunc
tion. Indeed, in S eiga l the only issue litigated was whether
the order refusing approval of the settlement was appeal-
able under 28 U.S.C. § 1291 under the collateral order
doctrine of C oh en v. B en efic ia l In d u stria l L o a n C orp .,
su p ra .2 No claim was made that, as here, the order was
appealable under 28 U.S.C. § 1292(a)(1).
Nor do we think that G ard n er v. W estin g h o u se B ro a d
ca stin g C o., 437 TJ.S. 478, 98 S.Ct. 2451, 57 L.Ed.2d 364
(1978), holding that pretrial denial of class certification in
a Title YII case is not appealable under § 1292(a) (1), con
trols here. The rationale of that case is that the order
denying certification “could be reviewed both prior to and
after final judgment; it did not affect the merits of peti
tioner’s own claim; and it did not pass on the legal suffi
ciency of any claims for injunctive relief.” Id . at 480-81,
98 S.Ct. at 2453. By contrast, if the consent decree in the
instant case is not approved now, as a practical matter
Opinion of the United States Court of Appeals
2 It should be noted that, in Norman v. M cK ee, 431 F.2d 769 (9
Cir. 1970), cert, denied, 401 U.S. 912, 91 S.Ct. 879, 27 L.Ed.2d 811
(1971), the Ninth Circuit reached the opposite result and held that
the refusal to enter a settlement of a derivative stockholders’ suit
was appealable.
21a
the propriety of the proposed settlement will not be raised
again either in the district court or before us. The consent
deeree, if entered, would settle finally the rights of the
parties, subject only to possible modification at the instance
of a dissatisfied member of the class; and, notwithstanding
the standard recital that defendants disclaimed liability,
it would in actuality hold them to have violated Title VII.
Similarly, a holding that the denial of a motion for sum
mary judgment, which if granted would include injunctive
relief, is not appealable, S w itzerlan d C h eese A sso c ia tio n ,
In c. v. E . H o m e ’ s M a rket, In c., 385 U.S. 23, 87 S.Ct. 193,
17 L.Ed.2d 23 (1966), does not decide this case. “ [T]he
denial of a motion for summary judgment because of un
resolved issues of fact does not settle or even tentatively
decide anything about the merits of the claim. It is strictly
a pretrial order that decides only one thing—-that the case
should go to trial.” Id . at 25, 87 S.Ct. at 195. By contrast,
the order appealed from in the instant case does much
more; in rejecting the consent decree, the district court
relied on conclusions adverse to plaintiffs’ claims on the
merits—conclusions which plaintiffs now ask us to review.
Nor is the instant case decided by L ib e r ty M utual In s. Co.
v. W e tz e l , 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435
(1976). There, the district court granted partial summary
judgment as to liability in a Title VII employment case,
but before an actual injunction was formulated and entered,
the employer appealed. The Court held that the order was
not appealable under § 1292(a)(1) since no injunction had
been issued, nor had an injunction been refused. Signifi
cantly, it added that “had [the district court] granted in
junctive relief but had not ruled on respondents’ other re
quests for relief, this interlocutory order would have been
Opinion of the United States Court of Appeals
appealable under § 1292(a) (1).” Id . at 744, 96 S.Ct. at
1207.
Thus, we conclude that we have and should exercise
appellate jurisdiction.
III.
Because we would hold that we possess and should exer
cise appellate jurisdiction, we are brought to the merits
of the case.
The law of this circuit with reference to the function
of the district court in approving or disapproving a settle
ment of Title VII sex discrimination litigation, as well as
our function on appeal, was settled in F lin n v. F M C C o r
p ora tion , 528 F.2d 1169 (4 Cir. 1975), cert, den ied , 424
TT.S. 969, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976). We think
that the same standards apply to settlement of Title VII
race discrimination litigation.
In F lin n , to summarize Judge Bussell’s detailed and
■scholarly opinion, we said that the most important factor
that the district court must consider is the strength of
the plaintiffs’ claims on the merits and that, in making
that evaluation, the district court should consider the ex
tent of discovery that has taken place, the stage of the
proceedings, the want of collusion in the settlement and
the experience of plaintiffs’ counsel who negotiated the
settlement. These elements are important, Judge Russell
wrote, because the completion of discovery ordinarily per
mits a reasonable evaluation of the merits of a claim, and
the opinion of competent counsel, absent a showing of col
lusion and bad faith, is entitled to great weight. Also to
be considered is the attitude of the class members and
whether they favor or oppose the settlement. Judge Bussell
cautioned that while the adequacy of a settlement should
Opinion of the United States Court of Appeals
be appraised, the district court should not turn its con
sideration of the settlement into a trial or rehearsal of
the trial or make dispositive conclusions on the unsettled
legal issues in the case. Finally, Judge Russell called at
tention to the legislative intent to encourage settlements,
expressed in Title VII. 528 F.2d at 1172-74.
Although our review is limited to determining whether
the district court abused its discretion in the action that
it took, 528 F.2d at 1172, we are persuaded that in the
instant case there was an abuse of discretion, in disapprov
ing the settlement, except in one small particular with re
spect to notice to members of Class 2 plaintiffs whose
rights were being adjudicated adversely to them. We reach
this conclusion from a consideration of the factors iden
tified in F linn .
There can be no doubt that counsel for all parties to
this litigation are highly competent and experienced law
yers with substantial experience in dealing with Title VII
racial discrimination employment cases. They reached a
settlement on the eve of trial after all reasonable discovery
had been completed and after lengthy negotiations. There
is not the slightest basis to suggest that they negotiated
eollusively or in bad faith. The fact that they, who know
the case best and know their respective clients’ strengths
and weaknesses with respect to the issues, have agreed
to the settlement and recommend it to the court is entitled
to very great weight.
The attitude of members of the class is as yet unknown
since the decree will not be exhibited to them until it is
entered. But the entry will be in effect an order n isi and
the district court will have full opportunity to assess the
objections, if any, of the members of both classes and to
enter such further orders as are proper.
Opinion of the United States Court of Appeals
24a
Of course tlie recommendations of even experienced,
competent counsel will not suffice to warrant the entry of
a consent decree if its terms depart markedly from the
plaintiffs’ case. We do not disagree with the district court’s
major premise that a consent decree should not be entered
which is in violation of law, hut it is manifest since the
decision in U n ited S tee lw o rk ers o f A m er ica v. W e b e r , ------
U .S .------ , 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), which was
announced after the submission of the case to the in banc
court, that the proposed consent decree does not fall into
that category. W e b e r unequivocally held that a private,
voluntary, race-conscious affirmative action plan which re
served for black employees 50% of the openings in an in-
plant craft training program until the percentage of black
craft workers in the plant is commensurate with the per
centage of blacks in the local labor force did not violate
Title VII. 'Since the plan was adopted by private parties,
there was no question presented of an alleged violation of
the Equal Protection 'Clause of the Constitution.
In the light of W eb er , we would have little difficulty in
holding that, by voluntary agreement, seasonal employees,
all of whom were black, could be given seniority credit
for the time that they worked as seasonal employees as
well as credit toward their eligibility for medical and sick
benefits, that they could be given preference in bidding
for vacancies in hourly-paid permanent production job
classifications, that they could be given preference in bid
ding for vacancies in the watchman job classification, and
that a goal to fill supervisory positions in the Leaf De
partment with qualified blacks until one-third of the posi
tions are filled with blacks could be set, all without violating
Title VII.
Opinion of the United States Court of Appeals
25 a
We do not fault the district court for not anticipating
W eb er . But now that W e b e r has been decided, it is ob
vious that the district court fell into error as a result of
its failure to recognize that the parties agreed to the
substantive provisions of the consent decree to redress
past discrimination and the present effects of past dis
crimination. Remedial steps of the type employed are
legal and proper to redress discrimination. They were
included not to favor plaintiffs because they are black
but to make them equal by undoing the unlawful discrim
inations which had been practiced against them because
they were black. This is the whole purpose of Title VII
and of this lawsuit. The fact that the consent decree
contained language to the effect that American and the
union deny “discriminatory conduct,” while plaintiffs sim
ilarly withhold any admission that any of American’s em
ployment practices are legal, should not hide the fact that
plaintiffs, arguably at least, have a cause of action under
Title VII for racial discrimination in employment and
although American and the union, arguably at least, have
good defenses, the parties, consistent with the intent of
Title VII, should be allowed to compose their differences
and reach an amicable settlement of the matter. Dis
claimers of liability and disclaimers of admissions of legal
ity are not uncommon in settlement agreements, as well
as in consent decrees. A ruling that litigation may not
be settled unless a party formally admits liability, or
formally concedes legality, or a court determines liability
or a lack thereof, would defeat the general policy of the
law to foster settlements since the very purpose of a
settlement is usually to avoid an adjudication or a con
cession of rights. Certainly it would ban settlements in
Opinion of the United States Court of Appeals
26a
Title YII cases in violation of congressional intent where
the purpose of the settlement is to avoid an adjudication.
Since Title VII encourages settlements and since the
settlement embodied in the proposed consent decree was
one negotiated by competent, experienced counsel in full
possession of all discoverable facts, and since we perceive
no unfairness or manifest illegality in the manner in which
the parties propose to compose their differences, we think
that it was an abuse of discretion for the district court to
decline to approve and to refuse to enter the consent
decree.3
Opinion of the United States Court of Appeals
IV.
We would therefore assert jurisdiction over this appeal,
reverse the judgment of the district court, and direct it
to enter the proposed decree, modified only with respect
to notice to members of Class 2, se e note 3 su pra . Because
8 W e think that the proposed decree should be modified in one
minor respect. The consent decree provides that after its entry
notice of its terms will be given to all members of Class 1 (black
persons, whether currently employed or not, who were seasonal em
ployees at any time after September 9 ,1972), by posting on Ameri
can’s bulletin boards and by mail to each person included in the
class. The notice must advise every class member that he has a right
to object to the decree, the time in which to lodge an objection and
the place to file written objections. Similar notice is not required
to be given to members of Class 2 (black persons who sought but
did not obtain seasonal employment after September 9, 1972), al
though the decree provides that they “are not entitled to assert
claims for monetary relief.”
W e think that the consent decree should give the same notice to
members of Class 2 as will be given to members of Class 1. If,
notice to members of Class 2 having been given, an objection to the
decree, having arguable merit, is lodged, there will be need for a
new representative of the class. See Goodman v. Schlesinger, 584
F.2d 1325 (4 Cir. 1978), and Cox v. Babcock & W ilcox, 471 F.2d
13 (4 Cir. 1972).
27a
the majority finds that it lacks jurisdiction over this ap
peal, we are constrained to add a further comment. The
majority’s jurisdictional decision in no way touches the
merits or approves the action taken by the district court.
Moreover, it is grounded firmly on the fact that the order
of the district court refusing to enter the consent decree
is not a final judgment:
Under the F lin n analysis, the named parties may
present a proposed decree to the district court in any
form and at any stage in the proceedings. If one de
cree is refused another may he proposed. At any
time the district court can reconsider its refusal to
enter a decree.
Majority op. at 424.
We agree that the district court has the power to
reconsider its order. Further, we believe that W e b e r
so undercuts the theory on which the district court
declined to enter the consent decree that, when the
case is returned to the district court, it may well, on
its own motion or at the instance of counsel for plain
tiffs, conclude to reconsider its ruling in light of
W eb er . If reconsidered, we feel confident that the
district court will conclude that Title VII presents
no bar to approval of the consent decree.
Opinion of the United States Court of Appeals
28a
Opinion of the District Court
September 14, 1979
UNITED STATES DISTRICT COURT
F o r t h e D is t r ic t oe R i c h m o n d , V ir g in ia
No. 77-2260
F r a n k L. C a r s o n , L a w r e n c e H a t c h e r , S t u a r t E. M i n e s ,
A p p ella n ts ,
v.
A m e r ic a n B r a n d s I n c ., t / a T h e A m e r ic a n T o b a c c o C o m
p a n y ; L o c a l 18 2 , T o b a cc o W o r k e r s I n t e r n a t i o n a l ,
T o b a c c o W o r k e r s I n t e r n a t io n a l U n i o n ,
A p p e lle e s .
This Opinion is recorded at 446 F. Supp. 780.
M e m o r a n d u m
W arrin er , D istr ic t Judge.
I
Plaintiffs brought this class action against the above-
named defendants under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq . as amended, 42 U.S.C.
§ 1981 and the Fourteenth Amendment. Jurisdiction is
invoked pursuant to 42 U.S.C. § 2000e 5(f) and 28 U.S.C.
§ 1343(4).
Negotiations in an attempt to settle the issues raised
by the complaint have resulted in a proposed Consent
29a
Decree which the parties requested the Court to enter at
the final pretrial conference oil 1 April 1977. At that con
ference, the Court expressed concern that certain provi
sions of the Decree might be violative of the law and that
provisions of the Decree would affect parties other than
those before the Court. The Court noted that the parties
were jointly seeking entry of the Decree and to that ex
tent were no longer in an adversary posture. The Court
requested counsel to brief the issues of concern. The
briefs having been filed the Court must now decide whether
or not it is just and proper and in accordance with the
law to enter the Decree.
Opinion of the District Court
II
Plaintiffs have included a statement of facts in their
brief in support of the proposed Consent Decree. For this
purpose only, we accept these facts to be true as follows:
The defendant American Brands, Inc. (hereinafter re
ferred to as the “Company” ), operates the Richmond Leaf
Department of the American Tobacco Company in Rich
mond, Virginia, for the purpose of processing and storing
leaf tobacco. The defendant Local 182 Tobacco Workers
International Union has exclusive bargaining rights for
the establishment of wage rates and other terms and con
ditions of employment for all hourly paid production unit
positions at the Richmond Leaf Department. The defen
dant Tobacco Workers International Union is a national
organization consisting of local unions, including Local 182.
The plaintiffs are present and former black seasonal em
ployees at the Richmond Leaf Department and held jobs
under the jurisdiction of Local 182, TWI.U, during their
employment. As seasonal employees, the plaintiffs all
worked at the Richmond Leaf Plan an average of six
30a
months each year. Regular employees worked at this same
facility all year.
The Company employs approximately 150 seasonal em
ployees, all of whom at the present time are black, and
approximately 100 regular employees, of whom 66% are
black. Plaintiffs are not aware of any white individuals
who have ever been employed as seasonal employees at
the Company’s Richmond Leaf Plant.
Prior to September 1963, the regular job classifications
of truck driver, watchman, maintenance, storage, and
boiler operator at the Leaf Plant were reserved for whites
only. As of 15 February 1976 these positions were staffed
as follows:
Opinion of the District Court
P o sitio n W h ites B lacks
Truck Drivers 5 4
Watchmen 15 1
Maintenance Storage 1 0
Boiler Operators 0 3
Regular employees have the right to obtain any per
manent position for which the TWIU has bargaining rights
within the Richmond Leaf Department. Seasonal em
ployees have the right to obtain any seasonal position for
which the TWIU has bargaining rights within the Rich
mond Leaf Plant. Seasonal employees may transfer to
positions in regular classifications only when no regular
employee desires that position. Should the seasonal em
ployee transfer to a regular position, he loses all of his
seniority and is treated as a new hire for seniority pur
poses. Separate seniority rosters are maintained for reg
ular and for seasonal employees.
When a seasonal employee transfers to a regular posi
tion he is placed at the bottom of the regular seniority
31a
roster irrespective of the number of years he has worked
as a seasonal employee with the Company. This loss of
seniority affects his status for promotions, demotions, lay
offs, recalls and vacations, and, in short, the principal
terms and conditions of his employment.
Since 1971, the vast majority of applicants and new
hires at all of the Company’s locations in the Richmond
area have been black, as indicated by the following chart:
Opinion of the District Court
Y ea r A p p lica n ts N ew M ires
B la cks W h ites B la cks W h ite .
1971 97 1 88 1
1972 118 5 97 2
1973 94 4 93 1
1974 71 7 64 2
1975 77 3 '22 2
The racial composition of the production unit at th<
Richmond Leaf Department is as follows:
R egu la r S eason al
Y ea r E m p lo y ees E m p lo y ees
W h ite s B lacks W h ites B lacks
1968 41 52 — - 116
1970 40 59 — 175
1973 40 56 — 176
1976 37 57 — 135
Of the 35 supervisory positions at the Company’s Rich
mond Leaf Department as of 5 April 1976, seven, or 20%,
were filled by blacks. Of the 229 persons in hourly paid
production unit jobs at the Richmond Leaf Department
in that same year, 192, or 84% were black.
O pinion o f the D is tr ic t C ou rt
III
In the proposed Consent Decree defendants “expressly
deny any violation of . . . any . . . equal employment law,
regulation, or order.” Plaintiffs conversely state that “con
sent to this Decree does not constitute a finding or admis
sion that any of the employment practices of . . . [defen
dants] are lawful.” The proposed Decree further states
that “the Court finds from the evidence previously filed in
the form of answers to interrogatories that there are no
discriminatory hiring practices at the Richmond Leaf De
partment.”
In light of the facts outlined above, the foregoing pro
visions, and the applicable law, the Court questioned the
propriety of the following provisions of the proposed Con
sent Decree:
In full and final settlement of any and all claims for
injunctive relief alleged in the Complaint, the parties
agree to the following:
1. For the purposes of determining eligibility for vaca
tions and for promotions, demotions, lay-offs and
recalls, every current and future regular hourly
paid production employee of the Richmond Leaf
Department will be credited with actual time worked
as a seasonal employee commencing with the date
of hire of the last period of continuous employ
ment as a seasonal employee in accordance with
Section 1 of Article 7 of the current collective bar
gaining agreement governing seasonal employees.
The combined total of such seasonal and regular
employment will apply toward service requirements
for vacations, and for promotions, demotions, lay
offs and recalls.
33a
2. Regular employees who have served the proba
tionary period as a seasonal employee during the
last period of his or her continuous seasonal em
ployment at Leaf prior to being transferred to reg
ular Leaf employment will become eligible for
medical benefits and sick benefits immediately upon
such transfer to regular employment,
3. In the event that vacancies in hourly paid perma
nent production job classifications at the Richmond
Leaf Department are not filled by regular produc
tion employees, then all qualified hourly paid sea
sonal production employees will be given the op
portunity to fill such vacancies prior to hiring from
the outside.
4. In the event that vacanies in the job classification,
Watchman, at the Richmond Leaf Department are
not filled by regular production employees, then
all qualified hourly paid seasonal production em
ployees will be given the opportunity to fill such
vacancies prior to hiring from the outside.
5. The Richmond Leaf Department adopts a goal of
filling the production supervisory positions of Fore
man and Assistant Foreman with qualified blacks
until the percentage of blacks in such postions
equals % of the total of such positions. The date
of December 31, 1980 is hereby established for the
accomplishment of this goal.
IV
Before discussing these provisions specifically, a general
discussion of what this Court perceives to be the control
ling law is appropriate.
Opinion of the District Court
34a)
Plaintiffs based this suit on Title VII, Section 1981 and
the Fourteenth Amendment. As defendants herein are
private parties, the Court does not find the precepts of
the Fourteenth Amendment to be applicable p e r se. But
the guarantees of the Equal Protection clause against
State action hy the Fourteenth Amendment nevertheless
are afforded plaintiffs by Title VII and Section 1981 which,
with respect to private parties defendant, have their under
pinnings in the Thirteenth Amendment. This Court is also
cognizant that the Supreme Court of the United States
has read the guarantees of the Equal Protection clause
into the Due Process clause of the Fifth Amendment pro
tecting against arbitrary and capricious1 federal action.
Thus, the Fifth Amendment may well protect citizens
against arbitrary and capricious federal action in the form
of a federal court Consent Decree that would place a fed
eral stamp of approval, with the full force and effect of
contempt proceedings, to what would otherwise be a mere
agreement between private parties. S ee S h elley v. K r a e -
m er, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1947). In sum,
we opinion that the mandates of the United States Consti-
tion as well as the statutes invoked by plaintiffs require
us to insure that this Court plays no role in perpetuating,
promulgating or acquiescing in improper discrimination on
the basis of race.
V
Keeping the above in mind, we shall focus on the law
of Title VII as this statute speaks specifically to the area
1 See e.g., Richardson v. Belcher, 404 U.S. 78, 81-82, 92 S.Ct. 254,
30 L.Ed.2d 231 (1971); Flem m ing v. Nestor, 383 U.S. 603, 612, 80
S.Ct. 1367, 4 L.Ed.2d 1435 (1960); Bolling v. Sharpe, 347 U.S. 497
499, 74 S.Ct. 693, 98 L.Ed. 884 (1934).
Opinion of the District Court
35a
of concern herein, that is, discriminatory employment
practices.
Title VII states in pertinent part that it is unlawful:
(1) to fail or refuse to hire or to discharge any indi
vidual, or otherwise to discriminate against any indi
vidual with respect to his compensation, terms, con
ditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national ori
gin; or
(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would
deprive or tend to deprive any individual of employ
ment opportunities or otherwise adversely affect his
status as an employee, because of such individual’s
race, color, religion, sex, or national origin. [42 U.S.C.
$2000e-2(a)].
The provisions of Subsection (j) read as follows:
(j) P re fe ren tia l trea tm en t n o t requ ired on account o f
num erical o r p ercen ta g e im balance. Nothing contained
in this title [42 U.S.C.S. §§ 2000e—2000e-17] shall
be interpreted to require any employer, employment
agency, labor organization, or joint labor-management
committee subject to this title . . . to grant preferen
tial treatment to any individual or to any group be
cause of the race, color, religion, sex, or national
origin of such individual or group on account of an
imbalance which may exist with respect to the total
number or percentage of persons of any race, color,
religion, sex, or national origin employed by an em
ployer, referred or classified for employment by any
employment agency or labor organization, admitted
Opinion of the District Court
Opinion of the District Court
to membership or classified by any labor organization,
or admitted to, or employed in, any apprenticeship
or other training program, in comparison with the
total number or percentage of persons of such race,
color, religion, sex, or national origin in any commu
nity, State, section, or other area, or in the avail
able work force in any community, State, section, or
other area.
Title VII plainly and distinctly prohibits racial discrim
ination in any and all aspects of employment practices
including but not limited to recruitment, promotions, se
niority and benefits. The language clearly prohibits dis
crimination against whites as well as blacks on account of
race and clearly makes no exception for alleged benign
motives such as rectifying the effects of past discrimina
tion. Indeed, Subsection (j) explicitly states that prefer
ential treatment is not required to rectify racial imbalance.
To be sure, Title VII does not exclude use of extraordi
nary measures to make those individuals who actually
suffer from the results of past or present discrimination
whole, but such action is more aptly characterized as
equitable, not preferential, treatment. And even in this
context, the courts have been careful to minimize what
ever adverse effects may result with respect to innocent
third parties.
The legislative history of Title VII clearly supports what
this Court understands to be its clear and unequivocal
mandate. In response to a charge that the Title VII ap
peared to force employers to grant preferential treatment,
Senator Harrison Williams retorted:
Those opposed to H.R. 7152 should realize that to
hire a Negro solely because he is a Negro is racial
37a
discrimination, just as much as a “white only” em
ployment policy. Both forms of discrimination are
prohibited by Title YU of this Act. The language of
that title simply states that race is not a qualification
for employment. Every man must be judged according
to his ability. In that respect, all men are to have an
equal opportunity to be considered for a particular
job. Some people charge that H.R. 7152 favors the
Negro, at the expense of the white majority. But how
can the language of equality favor one race over an
other? E q u a lity can have on ly one m eaning, and that
m ea n in g is s e lf-ev id en t to reason ab le m en. [L eg is la
tiv e H is to ry o f T itle V I I and X I o f the C ivil R igh ts
A c t o f 1964, U nited S ta tes E qu a l E m p loym en t O p p o r
tu n ity C om m ission , U.S. G overn m en t P rin tin g Office,
1969, page 3189.]
Opinion of the District Court
■Senator Williams’ understanding as above expressed in
advocating passage of Title VII was shared by Senators
Clark and Case:
There is no requirement that an employer maintain
a racial balance in his work force. On the contrary,
any deliberate attempt to maintain a racial balance,
whatever the imbalance may be, would involve a viola
tion of Title VII because maintaining such a balance
would require an employer to hire or refuse to hire
on the basis of race. It must be emphasized that dis
crimination is prohibited as to any individual. [110
Cong.Rec. 7213, April 8, 1964]
Further, at the behest of the bill’s sponsors, the De
partment of Justice submitted a memorandum stating:
Finally, it has been asserted that Title VII would
impose a requirement of “racial balance.” This is
incorrect. There is no provision, either in Title VII
or in any other part of this bill that requires or au
thorizes any federal agency or federal court to re
quire preferential treatment for any individual group
for the purpose of achieving racial balance.
No employer is required to hire an individual be
cause that individual is a Negro. No employer is re
quired to maintain any ratio of Negroes to whites,
Jews to gentiles, Italians to English, or women to men.
[110 Cong.Rec. 7207, April 8, 1964.]
Neither the Supreme Court nor the Fourth Circuit has
dealt squarely with the question of the legality of prefer
ence and/or quotas under Title VII. However, both Courts
have discussed the issue in dicta. In G riggs v. D u ke P o w er
C o., 401 U.S. 424, 430 431, 91 S.C't. 849, 28 L.Ed.2d 158
(1971) the Supreme Court stated:
Congress did not intend by Title VII to guarantee
a job to every person regardless of qualifications. In
short, the Act does not command that any person be
hired simply because he was formerly the subject of
discrimination, or because he is a member of a minor
ity group. Discriminatory preference for any group,
minority or majority, is precisely and only what Con
gress has proscribed. What is required by Congress
is the removal of artificial, arbitrary, and unnecessary
barriers to employment when the barriers operate in
vidiously to discriminate on the basis of racial or other
impermissible classification. [401 U.S. at 430-431, 91
S.Ct. at 853].
|38a
Opinion of the District Court
39 a
The Supreme Court, in the more recent decision of
M cD on ald v. S anta F e T ra n sp orta tion C o., 423 U.S. 923,
96 S.Ct. 264, 46 L.Ed.2d 248 (1976), made clear, though not
in the factual context of an affirmative action program,
that Title VIPs protection from racial discrimination ap
plied to whites as well as blacks. Close in time to M c
D on ald , the Court in F ra n k s v. B ow m an T ra n sp orta tion
C o., 423 U.S. 814, 96 S.Ct, 25, 46 L.Ed.2d 32 (1976) did
award constructive seniority and back pay to remedy racial
discrimination against blacks and this remedy may have
adversely affected seniority rights of innocent white em
ployees. However, this relief was unequivocally restricted
to individual, identifiable, persons who were otherwise
qualified for the positions they sought but had been denied
on account of race.
Similarly, the Fourth Circuit has consistently limited
remedial relief under Title VII to actual persons who were
victims of unlawful discrimination, thereby minimizing
disruption of the working lives and expectations of other
innocent employees.
In R u ssell v. A m erica n T obacco C o., 528 F.2d 357 (4th
Cir.) cert, den ied 425 IT.S. 935, 96 S.Ct. 1666, 48 L.Ed.2d
176 (1976), a case which appears to be factually close to
this one, the Court, with some modification, affirmed the
district court’s decree. R u ssell was a class action brought
by black employees against their employer and union for
engaging in racially discriminatory employment practices.
The discrimination involved three departments of the com
pany: Leaf, Prefabrication and Fabrication. The Leaf
Department was located in Rockingham County and the
Prefabrication and Fabrication Departments were housed
in the Reidsville plant. Each department had a separate
seniority roster. The district court found, in te r alia, that
Opinion of the District Court
defendant’s discriminatorily preserved higher-paying jobs
in the Fabrication Department for white employees after-
enactment of Title VII. The Circuit Court clarified this
finding by holding that the disparity of treatment of the
employees at the Leaf Department and the Prefabrication
Department was also a product of this discriminatory
design:
If Branch and Leaf are both parts of the same opera
tion, this case presents a straightforward application
of the well-accepted principle that discriminatory
hiring in departments of a business may be remedied
by requiring the company to allow transfers between
departments, based on plant-wide seniority. S ee e. g.
R ob in son v. L orilla rd C orp ., 444 F.2d 791 (4th Cir.
1971); Q uarles v. P h ilip M orris , In c ., 279 F.Supp. 505
(E.D. Va. 1968) . . . [Hence] we conclude that reg
ular and seasonal black employees at Leaf w ho w ere
h ired b e fo r e the com pan y elim inated discrim ination
at fabrication should be permitted to transfer to that
department as permanent vacancies occur in jo b s th ey
can p er fo rm . Further, they should receive the train
ing for which they qualify. A transferee’s new depart
mental seniority should be computed from his em
ployment seniority date. The class of employees en
titled to back pay should also be enlarged to include
Leaf employees. [528 F.2d at 362-364] [Emphasis
added.]
Of particular significance, the Circuit Court affirmed the
district court’s disallowance of what would have amounted
to preferential treatment on the basis of race to those black
employees among the class of plaintiffs who were not
victims of discrimination:
40a
Opinion of the District Court
41a
Regular and seasonal Leaf employees also seek entry
into the prefabrication department, and many seasonal
employees seek regular employment in Leaf on the
basis of their company seniority. The district court,
finding no racial discrimination in hiring at prefabri
cation and Leaf, denied their requests. We affirm be
cause the Act does not oblige a company to allow black
employees to transfer into departments that were al
ways open to black applicants without discrimination.
U nited S ta tes v. C h esapea ke <& Ohio R y . C o., 471 F.2d
582, 588, 593 (4th Cir. 1972); U nited S ta tes v. B eth le
hem S tee l C orp ., 446 F.2d 652, 662 (2d Cir. 1971).
[528 F.2d at 364.]
The most recent Fourth Circuit case in this area is
P a tte rso n v. A m erica n T obacco Co., 535 F.2d 257 (4th
Cir. 1976). This Court has discussed its reading of that
case at some length in C ram er v. V irg in ia C om m onw ealth
U n iv ers ity , 415 F..Supp. 673, 679-680 (E.D.Va.1976). Suf
fice it to say that P a tte rso n did not hold that Title VII
allows preferential treatment solely on the basis of race
to compensate for unlawful past discrimination. More
important, insofar as P a tterso n relates to the facts herein,
it states that:
[Title VII] plainly bans the use of preferential hiring
to change a company’s racial imbalance that cannot
be attributed to unlawful discrimination. [535 F.2d at
273],
Title VII, by its own terms, does not requ ire preferential
treatment to rectify racial imbalance. This language may
be interpreted to mean that, although permissible, it is
not mandated. P a tte rso n states in no uncertain terms that
Opinion of the District Court
42a
preferential treatment is banned absent proof of discrim
ination. As in R u ssell the -Court in P a tte rso n carefully
tailored the relief to cover only actual victims of discrim
ination. S ee also , U nited S ta tes v. C h esapea ke & Ohio R a il
w a y C o., 471 F.2d 582 (4th Cir. 1972).
VI
Since Executive Order 11246 is also related to this area,
discusion on this point is warranted.
The Court has previously discussed this issue, citing ap
propriate authority, in C ram er v. V irg in ia C om m onw ealth
U n iv ers ity , 415 F.Supp. 673, 680-681 (E.D.Va.1976) hold
ing that where Executive Order 11246 is inconsistent with
Title VII it is superseded thereby. This Court must addi
tionally note however that the pertinent language of Ex
ecutive Order 11246 is clearly consistent with the plain lan
guage of Title VII:
(1) The contractor will not discriminate against any
employee or applicant for employment because of race,
color, religion, sex, or national origin. The contractor
will take affirmative action to ensure that applicants
are employed, and that employees are treated during
employment, without regard to their race, color, re
ligion, sex, or national origin. iSuch action shall in
clude, but not be limited to the following: employment,
upgrading, demotion, or transfer; recruitment or re
cruitment advertising; layoff or termination; rates
of pay or other forms of compensation; and selection
for training, including apprenticeship. The contractor
agrees to post in conspicuous places, available to em
ployees and applicants for employment, notices to be
Opinion of the District Court
43 ai
provided by the contracting officer setting forth the
provisions of this nondiscrimination clause.
It is rather the regulations adopted by the Secretary of
Labor pursuant to Executive Order 11246 that may be con
flicting, in our opinion, with both Title VII and Executive
Order 11246. The Secretary’s regulations require that
contractors develop written affirmative action plans which
shall “provide in detail for specific steps to guarantee
equal employment opportunity keyed to problems and
needs of members of minority groups, including, when there
are deficiencies, the development of specific goals and time
tables for prompt achievement of full and equal employ
ment opportunity.” [41 C.F.R. 60 1.40(a) (1970)]. Insofar
as the above quoted regulation serves as an amorphous
and euphemistic mandate requiring preferential treatment
and imposition of quotas solely on the basis of race, it
contravenes the letter and spirit of Title VII. As Title
VII supersedes contravening Executive Orders, a fo r tio r i ,
it su p ersed es federal regulations represented to be adopted
pursuant to such orders.
Opinion of the District Court
VII
Lastly, before examining the provisions in question,
something should be said about the nature and legal sig
nificance of consent decrees in Title VII class actions.
A recent Fifth Circuit case, M y ers v. Gilm an P a p er
C orp ., 544 F.2d 837 (1977), affords some insight in this
area. M y ers was a Title VII class action brought against
a company and union by black employees and former em
ployees who sought affirmative relief for alleged racial
discrimination in employment, promotions and transfers.
The district court found the union liable on the merits. In
44a
addition the Court entered and approved a consent decree
between plaintiffs and the company. On appeal by the
union, the Circuit Court held, in ter alia, that the district
court could not approve a consent decree negotiated be
tween plaintiffs and the company that would allow the
substitution of a solution for past discrimination in place
of that achieved through collective bargaining unless it
first determined that the collectively bargained solution
either violated Title VII or was inadequate to cure the
effects of past discrimination. 544 F.2d at 858-859.
In the course of its memorandum the Court made a
number of pertinent remarks. It noted that “ [b]efore a
court can grant any relief it must find that the defendants
engaged in the unlawful employment practice alleged in
the complaint” [544 F.2d at 854], It further made clear
“that before a district court can modify seniority provi
sions [by consent decree or otherwise] there must be a
challenge by the plaintiffs to the present provisions and
a finding by the court that the present provisions still
perpetuate discriminatory effects of prior action.” [544
F.2d at 855].
M y ers is not on all fours with this case particularly in
that the union herein has consented to the decree in ques
tion, but M y ers is sufficiently analogous to be of some
import. First, and basic, consent decrees, although looked
upon favorably by the courts, are not immune from
scrutiny in terms of propriety and legality. This prin
ciple is especially true in class actions where the effect of
the relief usually has widespread and considerable impact
both within and outside the class. For good reason Rule
23(e) of the Federal Rules of Civil Procedure requires
that “a class action shall not be dismissed or compromised
without the approval of the court . . . . ” Further, M y ers
Opinion of the District Court
provides us with the foregoing guidelines in deciding
whether or not to grant this approval in a Title VII
context.
VIII
With the foregoing review of the law, the Court will
consider the several provisions of the proposed Consent
Decree.
Provision I of the Decree provides that current and
future employees who were, or are to be, employed as
seasonal workers at the Richmond Leaf Plant shall be
credited with seniority for actual time worked at the
plant from the beginning of their employment. Since the
pool of employees benefiting from this provision, that is
seasonal employees, has been traditionally and are now
all black, it appears that benefits are being bestowed on
the basis of race. Preferential treatment on the basis of
race— any race—violates the Constitution and Title VII.
It cannot be countenanced by a court sworn not to subvert
but to uphold the law. To be sure, legitimate nonracial
business reasons may underlie such a decision. But so
also, and more likely in this case, could illegitimate racial
considerations. If the reason is the former no decree is
required. If the reason is the latter no decree is permitted.
Plaintiffs, in their brief in support of the proposed Con
sent Decree, say that the relief in Provision I is “exactly
the same relief” granted in B u ssell v. A m erica n T obacco
C o., supra. This assessment is incorrect. There are two
paramount distinctions between R u sse ll and the instant
case: (1) in R u ssell the Court found present discrimina
tion and present effects of past discrimination; (2) the
R u ssell Court carefully tailored the relief in an effort to
make whole the actual victims.
Opinion of the District Court
Opinion of the District Court
In the proposed Consent Decree the defendants “ex
pressly deny . . . any unlawful or discriminatory conduct.”
Plaintiffs state that they make no “admission” that de
fendant’s conduct, with the exception of present hiring
practices, is “lawful.” This dichotomy does not create any
factual basis upon which relief may he granted. Plaintiff
does not, by these words, even deny defendants’ assertion.
But assuming for the moment that there is evidence of
present discrimination or of the present effects of past
discrimination, Provision I is still not in line with B u ssell.
The R u ssell Court devised an equitable solution to effect
relief for actual victims of discrimination. The relief was
not granted to employees because they were black but
because they were actual, identifiable, victims of racial
discrimination. Indeed, that Court refused relief to cer
tain blacks where no evidence existed that they had suf
fered from racial discrimination. Contrawise, the parties
herein have agreed to allow seemingly preferential treat
ment for “current and future” seasonal employees not be
cause they are victims of racial discrimination, but be
cause those current employees are black and those future
employees will almost surely be black. There was no
apparent consideration given to whether or not the pre
ferred employees have been, are, or would be subject to
racial discrimination. In short, the considerations which
were the essence of B u sse ll are absent here.
Provision II would allow all seasonal employees who
have already served a probationary period as a seasonal
employee to avoid having to serve the additional proba
tionary period as a regular employee that would otherwise
be required as a condition precedent to eligibility for med
ical benefits. The Court has the same concern with this
provision as it does with Provision I. If this is a business
Opinion of the District Court
decision it’s none of the Court’s business. If it is proposed
as relief for blacks it is unlawful as there is no showing
that the so-called relief applies and is limited to, victims
of racial discrimination and is reasonably related to making
such victims whole.
Provisions III and IV are somewhat similar in purpose
and effect and may be treated together. Provision III al
lows seasonal employees to transfer to full time positions,
some of which were reserved at one time for whites only,
as vacancies occur. Provision IV parallels III but specifi
cally includes “Watchman” classification because the com
pany has a separate eligibility list for that position. Since,
as mentioned, the pool from which hires shall be made
(seasonal workers) is all black, it is clear that “hiring
from the pool” is simply another way of saying “hire black.”
To reiterate, if defendant chooses to hire from its seasonal
workers because they are seasonal employees it presum
ably has a right to do so, but it has no right to a court
decree requiring that it do so thus protecting it from claims
that the facially neutral procedure was a pretest for pre
ferring blacks over whites in hiring.2
Again, plaintiffs say that similar relief was granted in
R u ssell. We find nothing in R u ssell to indicate that the
class of plaintiffs therein were to be given preferential
treatment in hiring over outsiders, but in any event, the
foregoing distinctions mentioned with regard to Provisions
I and II are applicable here. Plaintiffs admit in their brief
that they “have not found any evidence of discriminatory
hiring for positions in the hourly production unit.” They
instead speak of present effects of past discrimination but
none of the parties explicate upon these effects, if any,
2 But see M cA leer v. Am erican Telephone & Telegraph 416
P.Supp. 435 (D.C. 1976).
48a
nor do they point with any specificity to the victims, no
less make any attempt to tailor the relief accordingly. The
result, whether intended or not, is preferential treatment
of blacks solely on the basis of race.
Provision V adopts a “goal” for the company to obtain
in filling its supervisory work force to he met by 1980.
Despite plaintiffs’ protest to the contrary, this Court sees
it for what it is, a quota, plain and simple. With respect
to quotas this Court reviewed the law recently in C ram er
v. V irg in ia C om m onw ealth U n iv ers ity , supra , and found
that sex based quotas were contrary to both the letter and
spirit of the law. The parties have cited the Court to no
binding authority that the law is any different with respect
to racial quotas. The law reviewed earlier in this opinion
affirms the conclusion that racial preferences are forbidden
in this nation.
IX
The parties suggest that the decree is intended to over
come the last vestiges of racial discrimination. But the
Court perceives no such vestiges. Indeed, the facts ad
mitted by the parties show that with great rapidity and
without any decree the artificial racial barriers have com
pletely dissolved at the plant.
The parties further suggest that the decree is a mere
redundancy since Executive Order 11246 provides for pre
cisely the procedure and quotas provided for in the Con
sent Decree. While this Court has held that Executive
Order 11246 does not and cannot require racial quotas under
our present Constitution and laws, still, if the parties be
right this Court has other things to do than enter sur
plusage in the form of a court order. Court orders are
not intended for anything but serious problems.
Opinion of the District Court
49a
Finally, the parties say that the mandate of Title VII
will be satisfied by adoption of the Consent Decree which
is to say that Title VII sanctions preferential treatment
and quotas. As we have heretofore demonstrated, Title VII
was never so intended. Its strongest supporters specifically
and unequivocally disclaimed any intention to turn this
country down the mirey road of quotas and racial pref
erences.
This Court is sympathetic to the need and is aware of
the perplexity of rectifying the effects of past racial dis
crimination and eliminating present racial discrimination.
But the mere waving of the banner does not mean that it
is appropriately raised; it does not make that which is
illegal legal and does not make that which is unjust, just.
In Q uarles v. P h ilip M orris , In c ., 279 F.Supp. 505, 516
(E.D. Va. 1967), the Court, speaking with regard to Title
VII, stated:
[T]he legislative history indicates that a discrim
inatory seniority system established before the act
cannot be held lawful under the act. The history leads
the court to conclude that Congress did not intend to
require “reverse discrimination” ; that is, the act does
not require that Negroes be preferred over white em
ployees who possess employment seniority. It is also
apparent that Congress did not intend to freeze an
entire generation of Negro employees into discrim
inatory patterns that existed before the act.
This is the essence of the dilemma courts are faced with
in racial discrimination cases. Where the Court has before
it victims of discrimination and innocent third parties it
has the hard task of fashioning a remedy that will attempt
to make the victims whole without unduly affecting the
Opinion of the District Court
Opinion of the District Court
rights of innocent third parties— a difficult problem in
deed but one the Court must confront. The problem must
be solved by means of equitable relief, not preferential
treatment or quotas. The latter two methods serve to
evade and perpetuate rather than face the problem. They
apply cosmetic relief to the symptoms, but fail to address
the substance of the problem. They give employers and
unions a safe refuge from the rigors of non-discriminatory
hiring; so long as the quota is met they will be safe. Under
the Decree proposed herein any relief to victims of dis
crimination is incidental, persons who do not deserve to
benefit, benefit; and persons who do not deserve to suffer,
suffer.
A popular theory is that every black is in some sense
a victim of racial discrimination and that all whites share
the guilt. This notion perhaps makes preferential treat
ment and quotas more palatable to some. But a Court of
law cannot render decisions on the basis of guilt theories
nor may such theories be permitted to influence its judi
cial thinking. A Court is constrained to perceive victims
as subjects of violations of the law and is constrained to
perceive guilt in terms of legal guilt. The proposed Con
sent Decree herein, rather than aiding victims of viola
tions of the law, would itself violate the law and victimize
innocent people both black and white.
When the parties have settled their differences without
a violation of the law and without violating the right of
any class members, the Court will enter an appropriate
order without prejudice to the right of any person to seek
redress for racial discrimination. But this Court will not,
by entering the proposed Consent Decree provide the par
ties with a judicial license to practice racial discrimination.
An appropriate order shall issue.
51a
Order of the District Court
I n t h e
UNITED STATES DISTRICT COURT
F or t h e E a s t e r n D is t r ic t o f V ir g in ia
R i c h m o n d D iv is io n
Civil Action No. 75-0553-R,
F r a n k L. C a r s o n , et al.,
v.
A m e r ic a n B r a n d s , I n c ., et al.
O r d e r
For the reasons stated in the attached memorandum the
sketch for a Consent Decree tendered by the parties hereto
o n 1 April 1 9 77 is R e f u s e d .
Let the Clerk send a copy of this order to all counsel
o f record.
/ s / "Wa r r in e r
U nited S ta tes D istr ic t J u d ge
Date: 1 June 1977
Filed June 2 1977
Clerk, U.S. Dist. Court
Richmond, Va.
52a
Judgment of the United States Court of Appeals
UNITED STATES COURT OF APPEALS
F or t h e F ourth C ircuit
No. 77-2260
F r an k L . C arson , L aw rence H atch er , S tuart E . M in es ,
A p p ella n ts ,
v.
A merican B rands, I n c ., t /a T h e A merican T obacco C om
p a n y ; L ocal 182, T obacco W orkers I n te r n a tio n a l ;
T obacco W orkers I n tern ation al U n io n ,
A p p ellee s .
A ppeal F rom the United States District Court f o r the
Eastern District of Virginia.
T h is Cause came on to he heard on the record from the
United States District Court for the Eastern District of
Virginia.
On C onsideration W hereof , it is now here ordered and
adjudged by this Court that the appeal is dismissed.
W illiam K. S late , II
C lerk
Filed Sept. 14, 1979
W illiam K. S late , II
C lerk
MEILEN PRESS INC. — N. Y. C. <^H ^> 219