Patterson v. Newspaper and Mail Deliverers Union Petitioners' Reply to Briefs in Opposition

    N o. 93-1784

In The

S u p r e m e  C o u r t  o f  tl)c tH r u tc i)  S t a t e s
October Term , 1994

J ohn Patterson, et al, 

v.
Petitioners,

Newspaper and Mail Deliverers Union, et al,
Respondents.

On Petition for Writ of Certiorari 
to the United States Court of Appeals 

for the Second Circuit

PETITIONERS’ REPLY TO BRIEFS IN OPPOSITION

E laine R. J ones 
Director-Counsel

Theodore M. Shaw 
Charles Stephen Ralston 
(Counsel of Record)

NAACP Legal Defense and 
E ducational F und, Inc.
99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

Penda D. Hair 
NAACP Legal Defense and 
E ducational F und, Inc.
1275 K. Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

Attorneys for Petitioners

PRESS OF BYRON S. ADAMS, WASHINGTON. D.C. 1-800-347-8208



1

TABLE OF CONTENTS

I. In t r o d u c t i o n ................................................................  1

II. T his Ca s e  In v o l v e s  Im p o r t a n t  Issu e s  
C o n c e r n in g  t h e  A d m in ist r a t io n  o f  
C o n s e n t  D e c r e e s  T h a t  A r e  U n se t t l e d  . . .  4

A. Does Rufo overrule Swift? .......................  5

B. The Conflict Over the Standard for 
Dissolving a Consent Decree Under
Rufo........................................................................... 5

C o n c l u s io n  .................................................................................... 7



u

TABLE OF AUTHORITIES

Cases: Pages:

Favia v. Indiana University of Pennsylvania,
7 F.3d 332 (3rd Cir. 1993) .....................................5

Firefighters Local No. 1784 v. Stotts,
476 U.S. 561 (1984)................................................ 3

Freeman v. Pitts, 503 U .S.__ ,
118 L. Ed. 2d. 108 (1992)....................................... 4

Rufo v. Inmates of Suffolk County Jail,
502 U .S.__ , 116 L. Ed. 2d 867 (1992)............ 5, 6

United States v. City of Miami, 2 F.3d 1497
(11th Cir. 1993)................................................... 5, 6

United States v. Swift & Co., 286 U.S. 106 (1932)......... 5



No. 93-1784

IN THE

Supreme Court of tfje Urnteb States;
O c t o b e r  T er m , 1994

Jo h n  Pa t t e r so n , et aL,
Petitioners,

V.

N e w sp a p e r  a n d  M a il  D e l iv e r e r s  U n io n , et aL,
Respondents.

On Petition for Writ of Certiorari to the United States 
Court of Appeals for the Second Circuit

PETITIONERS’ REPLY TO BRIEFS IN OPPOSITION

Petitioners wish to reply to the briefs in opposition to 
the petition for a writ of certiorari filed by respondent New 
York Times and by the Equal Employment Opportunity 
Commission.

I .

In t r o d u c t io n

The New York Times takes issue with a number of 
assertions made by petitioners in their Statement of the 
Case. Its objections are not well-founded.

1. The Times states that the Petitioners are wrong in 
stating that Judge Pierce relied in part on the continued 
existence of claims of discrimination in denying a 1979 
application to modify the Consent Decree by eliminating the



2

role of the Administrator. Times Brief in Opposition, p. 4. 
The Times’ characterization of Judge Pierce’s decision is 
incorrect. He did not merely refer to a number of pending 
claims, but also held:

In this regard, the proposed replacement of the 
Administrator with the EEOC and the Adjustment 
Board is not an acceptable alternative to maintaining 
the position of the Administrator. Under the 
proposed plan the central function of resolving claims 
of racial employment discrimination is to be referred 
to the Adjustment Board which consists of persons 
representing the very defendants who have been 
charged in these actions with having engaged in 
practices which resulted in the exclusion of minority 
employees in this industry. Indeed, some of the 
claims of employment discrimination which, under 
this proposal the Adjustment Board would be called 
upon to resolve, might well involve defendants who 
have representatives on the Board.

App. 60a.

2. The Times now attempts to argue that there is a 
dispute over whether the relevant workforce has grown to 
more than 50% minority. Times Brief in Opposition, p. 5. 
The point is that the district court accepted petitioners’ 
argument that it had so increased but held that fact to be 
irrelevant as to whether the consent decree should be 
dissolved. Petitioners repeatedly urged that any dispute over 
the workforce should be decided; the Times was content to 
have the district court hold that the issue was irrelevant, and 
it cannot now attempt to rely on other facts that it alleges 
prove otherwise.

3. The Times claims that "Petitioners fail to support 
their contention of pervasive continuing discrimination" 
(Times Brief in Opposition, p. 5), wholly ignoring the fact 
that the Times argued successfully to the district court that 
it was irrelevant whether or not there was discrimination or



3

whether or not the decree was being violated. Of course, it 
was the Times' burden, as the party seeking to vacate the 
decree, to make some showing that it was in compliance with 
the prohibitory provisions. It utterly failed to do so, and 
cannot now rely on purported facts not found by the district 
court to suggest that the industry was free of discrimination.

4. The description in footnote 3 of the Times’ Brief 
(Times Brief in Opposition, p. 6) of Claim 186 is totally self- 
serving. The Times and the Union jointly promulgated a 
new list that was clearly in violation of the explicit terms of 
the consent decree and in defiance of an explicit order of the 
Administrator not to do so. After a proceeding that took 
many months and over 6,000 pages of testimony, the 
Administrator held that both the Times and the Union were 
guilty of intentional discrimination and had violated the 
consent decree when they issued the list and filled positions 
from it. The district affirmed the order of the 
Administrator, finding that the action of the Times and the 
Union was "In direct contravention of both the Settlement 
Agreement and the Administrator’s Order." App. p. 77a. 
Interestingly, the Times and the Union both argued, as does 
the Times here, that this Court’s decision in Firefighters Local 
No. 1784 v. Stotts, 476 U.S. 561 (1984) somehow justified 
their acting contrary to the consent decree. The district 
court’s response is still apt:

[T]he Times and the NMDU took matters into their 
own hands in open disregard of the plain language of 
the Settlement Agreement and the explicit order of 
the Administrator. This they cannot do. A court 
order must be obeyed.

(App. p. 84a.)
5. The Times misstates the basis for the petitioners’ 

proof that there continued to be serious and pervasive 
violations of the consent decree. Times Brief in Opposition, 
pp. 6-7. The offer of proof and subsequent affidavits were 
not proffered to the district court in order to have that court



4

adjudicate individual claims of discrimination and violations 
of the decree. Indeed, a number of the claims set out in 
those affidavits had also been presented to the Administrator 
for just such adjudications. The purpose of the submission 
was to demonstrate that the respondents had failed in their 
obligation to comply in good faith with the consent decree 
over a reasonable period of time. Thus, they could not 
demonstrate the compliance that is an absolute prerequisite 
to obtaining a modification of, let alone a dissolution of, a
consent decree. Freeman v. Pitts, 503 U .S .___, 118 L. Ed.
2d. 108, 139 (1992).

6. Finally, the Times continues to make much of the 
introductory paragraphs of the consent decree, which contain 
boilerplate language, insisted on by all defendants as a 
condition for settlement, that they did not admit any 
violation of Title VII or 42 U.S.C. § 1981 by entering into 
the settlement. This argument ignores the fact that when the 
district court approved the decree, which was being 
challenged by non-minority workers, it made detailed 
findings concerning practices in the industry that perpetuated 
the effects of past discriminatory policies, and resulted in the 
nearly total exclusion of minorities from the industry. App. 
pp. 20a-22a. These findings were affirmed on appeal to the 
district court and are binding on the Times for the purpose 
of this proceeding. App. pp. 40a-41a.

II.
T h is  C a s e  In v o l v e s  Im p o r t a n t  I s su e s  
C o n c e r n in g  t h e  A d m in is t r a t io n  o f  

C o n s e n t  D e c r e e s  T h a t  A r e  U n s e t t l e d

The Equal Employment Opportunity Commission 
agrees with petitioners that the case was wrongly decided 
below; the New York Times, of course, urges that the court 
below was correct. Both urge that this Court should not 
review the decision below whether it is right or wrong. Both 
are mistaken.



5

A. Does Rufo overrule Swift?

It is clear that there is great confusion in the lower 
courts as to whether the standard established by Rufo v.
Inmates o f Suffolk County Jail, 502 U .S .__ , 116 L. Ed. 2d
867 (1992) does or does not govern all consent decrees 
entered by a federal court, or only those involving public 
defendants. We have set out the varying views of the 
Seventh, Sixth, Eighth, District of Columbia, and Federal 
Circuits in the petition for a writ of certiorari at page 19, and 
will not repeat that discussion here. More recently, the 
Third Circuit, in Favia v. Indiana University of Pennsylvania, 
7 F.3d 332, 341 n. 15 (3rd Cir. 1993), noted the Seventh 
Circuit’s view that Rufo overruled United States v. Swift & 
Co., 286 U.S. 106 (1932). The Third Circuit stated that this 
was an open question that it would not resolve since the case 
before it involved a public institutional defendant. Clearly, 
the lower courts need guidance with regard to this important 
question.

B. The Conflict Over the Standard for 
Dissolving a Consent Decree Under Rufo.

As discussed at some length in the petition- for 
certiorari, the district court here specifically held that it was 
irrelevant whether the defendants had violated the consent 
decree, and the court of appeals affirmed without even 
discussing the issue of compliance with all aspects of the 
decree. Thus, the Second Circuit applied a "flexible standard 
for modifying decrees" without any guidelines whatsoever as 
to what should govern a district court’s discretion.

The decision below is in stark contrast to, and in 
conflict with, the approach of the Eleventh Circuit in the 
case of United States v. City o f Miami, 2 F.3d 1497 (11th Cir. 
1993). There, the court first held that the more flexible Rufo 
standard should apply to employment discrimination cases



6

where goals had been set.1 However, the actual standards 
it held governed when a district court could vacate or dismiss 
a consent decree were much more stringent and explicit than 
the amorphous ones set out by the Second Circuit here. 
With regard to the requirement that good faith compliance 
must be shown, the Eleventh Circuit directed that "the 
district court should consider the City’s record of compliance 
with the decree." 2 F.3d at 1508. Thus, "On remand, the 
district Court must reach the substantial compliance question 
to determine whether the City has acted in good faith." Id., 
n. 38 (emphasis added). Further, the Eleventh Circuit held, 
contrary to the decision of the Second Circuit here, that the 
fact that the defendant had acted to remedy past 
discrimination was not enough. Rather,

[Termination of the consent decree would be 
appropriate if the district court finds that the decree 
is clearly no longer necessary either to prevent 
discrimination in the future or to remedy the effects 
of past discrimination.

2 F.3d at 1508 (emphasis added).

Here, the district court, with the approval of the court 
of appeals held that it was irrelevant whether the prohibitory 
provisions of the decree were necessary to prevent future 
discrimination, because it was irrelevant that there was 
ongoing discrimination in the present. That conclusion was 
wrong, it was inconsistent with the decisions of this Court, 
and it is in conflict with the decision of the Eleventh Circuit.

And, contrary to the position of the Equal 
Employment Opportunity Commission, this issue is not 
merely "fact-specific." It goes to the heart of whether and to

'Although the case before it involved a public institutional 
defendant, the City of Miami, the Eleventh Circuit stated broadly that 
employment discrimination cases generally that involved affirmative 
action goals should be governed by Rufo.



7

what extent consent decrees will bind the parties that freely 
enter into them, a question vital to the continued viability 
and effectiveness of the settlement of cases in the federal 
courts.

C o n c l u s io n

For the foregoing reasons, the petition for a writ of 
certiorari should be granted and the decision of the court 
below reversed.

Respectfully submitted,

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Charles Stephen Ralston 
(Counsel of Record)

NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

Penda D. Hair 
NAACP Legal Defense and 
Educational Fund, Inc. 
1275 K. Street, N.W,
Suite 301
Washington, D.C. 20005 
(202) 682-1300

Attorneys for Petitioners