Patterson v. Newspaper and Mail Deliverers Union Petition for Writ of Certiorari

    No. 93-

In  T h e

Supreme Court of tf)e HrutEtr H>tate£
O c t o b e r  T e r m , 1993

John P atterso n , et al.,
Petitioners,

v.
N ew spa pe r  and  Mail  D e l iv e r e r s  U nio n , et al,

Respondents.

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

PETITION FOR A WRIT OF CERTIORARI

E laine  R Jones 
D irector-Co unsel

Theodore M. S haw  
Ch a r les  St e ph e n  Ralston 
(Counsel of Record)

NAACP L egal  D e f e n se  and  
E ducational  F u n d , Inc .
99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

P e n d a  D. H air 
N A A C P  L egal  D e f e n se  and  
E ducational  F u n d , 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

Q u e s t io n s  P r e s e n t e d

1. Does the standard for terminating consent decrees 
in cases involving governmental defendants enunciated in 
Board of Education of Oklahoma City v. Dowell, 498 U.S. 237 
(1991) and Rufo v. Inmates of Suffolk County Jail, 502 U.S.

116 L.Ed.2d 867 (1992) also govern in cases involving 
private, non-governmental defendants?

2. Did the lower courts err in granting defendants’ 
motions to dissolve the consent decree in this Title VII 
action when the defendants failed to demonstrate compliance 
with the decree and in the face of evidence and findings by 
the court-appointed Administrator and the trial court that 
defendants were continuing to violate the decree?



P a r t ie s

The participants in the proceedings below were:

John R. Patterson, Roland J. Broussard, Elmer 
Stevenson, and the class they represent,

Plaintiffs.

11

The United States Equal Employment Opportunity 
Commission,

Plaintiff.

Newspaper & Mail Deliverers Union of New York & 
Vicinity; New York Times Company; Maxwell Newspapers, 
Inc. (New York Daily News, Inc.); New York Post; Dow 
Jones Co., Inc.; Evening Journal Association; Hudson News 
Company; Metropolitan News Company; Passaic County 
News Company; Rockland News Agency; Raritan Periodical 
Sales; Bay City News Company; Brodsky News Co.; Crescent 
News Distributors Incorporated; Flushing News Company; 
Gaynor News Co.; Jersey Coast News Co.; Long Island News 
Corp.; Newark Newsdealers Supply Company; New 
Brunswick Newsdealers Co.; S. Rachles Newsdealers; 
Standard News Co.; Union County Newsdealer Supply Co.; 
Boro Park News Co.; Merit News Co., Inc.; Tribune New 
York Holdings, Inc.; Westfair Newspaper Distributors; 
NDI/Newspaper Distributors; Amsterdam News Company; 
El-Diaro-La Prensa; Fairchild Publications; Magazine 
Distributors, Inc’s and MDI Distributors, Ltd.; A Co.; Bronx 
County News Company; Bronxville News Company; Brooklyn 
Daily Inc.; Brooklyn News Company; Brownsville News Co.; 
East Island News Company; Eluyn News Co.; F. Printico; 
G.I. Distributors, Inc.; Weinberg News Co.; Imperial News 
Co.; Long Island Press Publishing Co.; Long View Publishing 
Co.; Manhattan News Co., Inc.; Mill Basin News Co.; New 
York News Incorporated; Newark Morning Ledger, Co.; 
Ridgewood News Company; T Co.,

Defendants.



Ill

TABLE OF CONTENTS

Questions Pr e s e n t e d ...................................................  i

Pa r t i e s ................................................................................................  ii

Opinions Be l o w ..............................................................  1

Jurisdiction ...................................................................  2

Statutes In v o l v e d ........................................................ 2

St a t e m e n t  o f  t h e  Ca s e  ..........................................
A. The Proceedings Below........................
B. Statement of the Facts.........................

1. Histoiy of Discrimination in
the Industry.....................................  7

2. The Consent Decree......................  9
3. Compliance with the

Affirmative Action Provisions. . 13
4. The Role of the

Administrator...............................  14
5. The Motions to Dissolve the

Consent Decree............................ 14
6. Plaintiffs’ Response — The

History of Non-compliance. . . .  15
7. The Decision of the District

Court.............................................  18

Reasons for Granting the Wr i t .......................... 20

In tr o d u c tio n ...................................................  20

I. The Case Presents an Important 
Question Regarding the 
Standard That Should Govern 
the D issolution of Consent 
Decrees About Which There Is 
Conflict Between the Circuits. . . 2 1

v
j 

Q
l



IV

II. The Decisions of the Courts 
Below Conflict With Decisions 
of This Court That Require 
That a Defendant Demonstrate 
Compliance With a Consent 
Decree Before The Decree Can
Be D issolved..............................  22

III. The Decision of the Court
Below Will Undermine the 
Settlement of Cases in Federal 
Court...........................   24

C o n c l u s i o n ...........................     27



TABLE OF AUTHORITIES

Cases: Pages:

Board of Education of Oklahoma City v. Dowell,
498 U.S. 237 (1991)  passim

Epp v. Kerrey,
964 F.2d 754 (8th Cir. 1992) ............................ 19

Evans v. Jeff D.,
475 U.S. 717 (1986)   22

Freeman v. Pitts,
503 U .S .__ , 118 L. Ed. 2d 108 (1992) . 18, 21, 22

In re Hendrix,
986 F.2d 195 (7th Cir. 1993) ..............................  19

Lorain NAACP v. Lorain Bd. of Educ.,
979 F.2d 1141 (6th Cir. 1992) .......................... 19

Marek v, Chesny,
473 U.S. 1 (1985) ..............................................  22

Patterson v. NMDU,
384 F. Supp. 585 (S.D.N.Y. 1974)....................  2, 4

Patterson v. NMDU,
514 F.2d 767 (2nd Cir. 1975)............................  2, 5

Rufo v. Inmates of Suffolk County Jail,
502 U .S.__ ,
116 L. Ed. 2d 867 (1992)..................... 1, 5, 18, 21

United States v. Swift & Co.,
286 U.S. 106 (1932) ................ .. 18, 19, 20, 22



VI

Pages:

United States v. Western Electric, Co., Inc.,
969 F.2d 1231 (D.C. Cir. 1992) ..........................  19

United States v. Western Electric Co., Inc.,
_  F. Supp.___, 1994 WL 143082 (D.D.C. April

5, 1994)....................       19

W.L. Gore & Associates, Inc. v. C.R. Bard, Inc.,
977 F.2d 558 (Fed. Cir. 1992) . . . . . . . . . . . .  19

Statutes: Pages:

28 U.S.C. § 1254(1) .............................................. ........... 2

42 U.S.C. § 1981 .......................... ............................. .. 3, 4

42 U.S.C. § 2000e, et seq...........................  4

42 U.S.C. § 2000e-2(a)........................................   2



No. 93-

In  T h e

Supreme Court of tf)t ®niteb Jkates
O c t o b e r  T e r m , 1993

Jo h n  Pa t t e r s o 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

PETITION FOR A WRIT OF CERTIORARI

Petitioners John R. Patterson, Roland J. Broussard, 
and Elmer Stevenson, on their own behalf and on behalf of 
all other persons similarly situated, respectfully pray that a 
writ of certiorari issue to review the opinion of the Court of 
Appeals for the Second Circuit entered in this proceeding 
December 20, 1993.

O p in io n s  B e l o w

The opinion of the Second Circuit is reported at 13 
F.3d 33 (2d Cir. 1993) and is set out at pages la-12a of the 
Appendix hereto ("App."). The order of the Court of 
Appeals denying a timely petition for rehearing and



2

suggestion for rehearing en banc is unreported and is set out 
at App. at 13a-14a. The decision of the United States 
District Court for the Southern District of New York that 
was affirmed by the Court of Appeals is reported at 797 F. 
Supp. 1174 (S.D.N.Y. 1992) and is set out at 100a-121a. 
Other decisions of the district court and of the Court of 
Appeals that are relevant to the issues presented by this 
petition and that are referred to herein, are set out in the 
Appendix as follows: 384 F. Supp. 585 (S.D.N.Y. 1974), 15a- 
32a; unreported Final Order and Judgment, 33a-35a; 514 
F.2d 1767 (2nd Cir. 1975), 36a-54a; 23 E.P.D. 11 31,001 
(S.D.N.Y. 1980), 55a-62a; 42 E.P.D. U 36,722 (S.D.N.Y. 
1986), 63a-67a; 46 E.P.D. U 36,722 (S.D.N.Y. 1988), 68a-74a; 
772 F. Supp. 1439 (S.D.N.Y. 1991), 75a-92a; 777 F. Supp. 
1190 (S.D.N.Y. 1991), 93a-99a; 802 F. Supp. 1053 (S.D.N.Y. 
1992), 122a-133a.

Ju r is d ic t io n

The decision of the Second Circuit was entered on 
December 20, 1993. A timely petition for rehearing was 
filed and was denied on February 7, 1994. Jurisdiction of 
this Court is invoked under 28 U.S.C. § 1254(1).

St a t u t e s  In v o l v e d

This case involves Title VII of the Civil Rights Act of 
1964, as amended, 42 U.S.C. § 2000e-2(a), which provides in 
pertinent part as follows:

(a) It shall be an unlawful employment 
practice for an employer—

(1) to fail or refuse to hire or to discharge any 
individual, or otherwise to discriminate against any 
individual with respect to his compensation, terms, 
conditions of employment, because of such



3

individual’s race, color, religion, sex, or national 
origin;

* * *

(c) It shall be an unlawful employment practice for 
a labor organization—

(1) to exclude or to expel from its membership, or 
otherwise to discriminate against, any individual 
because of his race, color, religion, sex, or national 
origin;

(2) to limit, segregate, or classify its membership or 
applicants for membership or to classify or fail or 
refuse to refer for employment any individual, in any 
way which would deprive or tend to deprive any 
individual of employment opportunities, or would 
limit such employment opportunities or otherwise 
adversely affect his status as an employee or as an 
applicant for employment, because of such 
individual’s race, color, religion, sex, or national 
origin; or

(3) to cause or attempt to cause an employer to 
discriminate against an individual in violation of this 
section.

This case also involves 42 U.S.C. § 1981, which 
provides in pertinent part as follows:

All persons within the jurisdiction of the United 
States shall have the same right in every State and 
Territory to make and enforce contracts . . .  as is 
enjoyed by white citizens . . . .



4

St a t e m e n t  o f  t h e  C a s e

A. The Proceedings Below.

This action is based on Title VII of the Civil Rights 
Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., and 42 
U.S.C. § 1981. It was filed by African American employees 
of various newspapers on their own behalf and on behalf of 
a class on July 11, 1973. The complaint alleged that the 
defendant Newspaper and Mail Drivers’ Union (N.M.D.U.) 
and a number of New York area newspapers and newspaper 
distributors, including the New York Times and the Daily 
News1, had engaged in a variety of practices that had the 
purpose and effect of discriminating against African 
American drivers. (J.A. 1-14.)2 Subsequently, an action 
making similar allegations was filed by the United States 
Equal Employment Opportunity Commission. (J.A. 30-38.) 
The two cases were consolidated for all purposes and a four 
week trial on the merits was held in 1974 before then 
District Court Judge Lawrence W. Pierce.

After the trial had concluded, the parties entered into 
a settlement agreement that was approved by Judge Pierce, 
who made findings of fact and entered a consent decree that 
embodied the injunction at issue here. Patterson v. NMDU, 
384 F. Supp. 585 (S.D.N.Y. 1974). (App. 15a-35a.) A white 
worker objected to the decree and filed an appeal to the

‘Although the consent decree was signed by virtually all of the 
newspaper publishers and distributors in the New York Metropolitan 
Area for whom the N.M.D.U. is the bargaining agent, only N.M.D.U. 
the New York Times, the New York Daily News, and the New York 
Post were actively involved in the proceedings that led to the 
dissolution of the consent decree that is at issue here. Only the 
Times and the News actually participated in the appeal in the Second 
Circuit.

2Record citations are to the Joint Appendix filed below ("J.A.") 
or to the original record.



5

Second Circuit. The court affirmed the entry of the decree 
on March 20, 1975 and the case was returned to the district 
court. Patterson v. NMDU, 514 F.2d 767 (2nd Cir. 1975). 
(App. 36a-54a.)

On November 9, 1979, a number of the defendants 
moved to modify the decree by eliminating the role of the 
Interim Administrator. Judge Pierce denied the motion on 
a number of grounds, including a finding that the goals and 
timetables provisions had not been met, and that there 
continued to be claims that the decree was being violated in 
a number of respects. (App. 55a-62a.) In 1985, the Times 
and other defendants filed a second motion. Since Judge 
Pierce had been elevated to the court of appeals, the case 
had been assigned to Judge Conner in 1982. Both the 
private plaintiffs and the EEOC opposed the motion and 
various proceedings took place, which will be described in 
more detail below. Finally, on July 29, 1992, Judge Conner 
issued an order vacating the injunction in its entirety, 
although jurisdiction was retained to resolve certain 
outstanding claims by class members. Judge Conner also 
denied a motion to alter and amend the judgment and a 
motion by private plaintiffs to restore the injunction pending 
appeal. (App. 100a-121a; 122a-133a.)

Both the private plaintiffs and the EEOC appealed. 
The Second Circuit affirmed, holding that the standard 
enunciated by this Court in Board of Education of Oklahoma 
City v. Dowell, 498 U.S. 237 (1991) and Rufo v. Inmates of
Suffolk County Jail, 502 U.S.__ , 116 L.Ed.2d 867 (1992) for
vacating or modifying consent decrees when the defendant 
was a local governmental agency should be applied in all 
cases. The court acknowledged a division between the 
circuits on this issue. (App. 9a.) The Court of Appeals did 
not mention or discuss the issue of the defendants’ failure to 
demonstrate that they had complied with all aspects of the 
decree over a reasonable period of time, or the evidence 
introduced by the petitioners that, in fact, various of the 
defendants had violated the decree. Petitioners filed a



6

petition for rehearing and a suggestion for rehearing en banc. 
The petition for rehearing was based on the failure to deal 
with the issue of violations of the consent decree; the 
suggestion for rehearing en banc was based on whether Rufo 
should apply where the defendant was not a governmental 
agency. The petition for rehearing was denied without 
opinion on February 7, 1994.

B. Statement o f the Facts.

1. History of Discrimination in the Industry.

Although this case was settled by the parties, Judge 
Pierce had before him the record of a four-week trial on the 
merits of the claims of racial discrimination in the industry. 
Thus, when he approved the decree he made detailed 
findings of fact. The focus of the claims were jobs at all of 
the newspapers and other publishers who employed members 
of the Newspaper and Mail Drivers Union to deliver 
newspapers and other periodicals in the metropolitan area of 
New York City and outlying areas.

Judge Pierce described the way the industry 
functioned:

The nature of the delivery industry is such 
that the employers’ needs for delivery department 
employees vary from day to day, and indeed, shift to 
shift, depending upon the size and quantity of the 
publication(s) being distributed. Thus, each employer 
. . .  maintains a regular work force (Regular Situation 
holders) for its minimum needs, and depends upon 
daily shapers to supplement the force. . . . [A]t the 
major employers the shapers are categorized into 
groups with descending daily hiring priorities. Group 
I is restricted . . .  to persons who have at one time 
held a Regular Situation in the industry. They have 
first shaping priority at every shift, in order of their



7

shop seniority. After the Group I is exhausted . . . 
the next hiring priority shall go to Group II members 
[consisting] of all persons in Group I and all persons 
holding Regular Situations in the industiy.. . . [T]he 
remaining open jobs, if any, will go to Group III 
members who have appeared for the shape, in order 
of their shop tenure.

(App. 19a.) All of the jobs involve equivalent skills, 
regardless of which list the worker who fills them is on. The 
jobs are unskilled and most workers either drive trucks or do 
floor work. Because the contract provides that a Regular 
Situation is required for Union membership, only Regular 
Situation holders and members of Groups I and II are Union 
members. Finally, the Group system provides the priority list 
for filling Regular Situations as they may become vacant. 
(App. 20a.)

The Union was founded in 1901 and apparently had 
no minority members. Historically, the Union constitution 
limited membership to "the first bom legitimate son" of a 
member. (App. 20a.) The industry had a closed shop and 
Union members were consistently hired before non-Union 
men at all industry shapes. Prior to 1952, when the Group 
structure was adopted, the Union’s nepotistic policy resulted 
in discrimination against minorities (and, of course, women) 
and foreclosed them from any employment in the industry. 
Although the Group structure appeared on its face to 
discard discriminatory policies and to open up Union 
membership and employment policies to the entire labor 
force, "there is uncontroverted evidence that certain . . . 
provisions of the contract have been administered 
haphazardly, and that the Group structure has been 
circumvented by friends and family of Union members. In 
practice . . .  no non-Union Group III shaper in the industry 
has achieved a Regular Situation, and thus Union 
membership, by moving up the Group system since 1963." 
(App. 21a.)



8

Since minorities had historically been denied free and 
equal access to Union membership, the result was that they 
continued to be almost totally excluded from the industry. 
In 1974, there were 4,200 members of the Union, including 
900 pensioners. More than 99% of these Union members were 
White. Of 2,855 persons actively working in the industry, 
including 2,460 Regular Situation, 123 Group I members, 
and 272 Group III members, only 70 persons — or 2% — 
were African American, Spanish-sumamed, Asian, or Native 
American. (App. 21a-22a.)

Thus, twenty years after the industry instituted a 
purportedly neutral Group structure of employment and 
hiring priorities, minorities were still almost totally excluded 
from the industry. Based on statistical analyses presented by 
the EEOC, Judge Pierce found that the relevant work force 
for the industry in 1974 was 30% minority. Therefore, their 
participation was "still grossly disproportionate" to what 
would be expected in the absence of discrimination. (App. 
22a.)

2. The Consent Decree.

Based on the above findings regarding discrimination 
against minorities in the industry, Judge Pierce approved the 
settlement agreement presented by the parties. (J.A. 50-99.) 
All parties voluntarily agreed to the entry of an injunction 
that was designed to end the entrenched practices in the 
industry that had excluded minority workers.

The injunction was in three parts, all of which ran 
against both the union and the employers. Section A, titled 
"Equitable Relief' was described by Judge Pierce thus: "As 
with many resolutions of employment discrimination cases, 
the Settlement Agreement in these actions contains general 
provisions permanently enjoining the defendants from 
discriminatory practices in violation of Title VII." (App. 
22a.) Section A provides, inter alia:

defendant [NMDU] . . .  will be permanently enjoined



9

from engaging in any act or practice which has the 
purpose or effect of discriminating against any 
individual or class of individuals on the basis of race, 
color or national origin . . .  nor shall they take any 
action which would deprive or tend to deprive any 
individual of employment opportunities or otherwise 
adversely affect his status as an employee or as an 
applicant for employment because of such individual’s 
race, color or national origin.

defendant employers. . .  will be permanently enjoined 
from engaging in any act or practice which has the 
purpose or the effect of discriminating against any 
individual or class of individuals in their bargaining 
units represented by NMDU on the basis of race, 
color or national origin. They shall not fail or refuse 
to hire for employment any such individual on the 
basis of race, color or national origin, not shall they 
take any other action which would deprive any such 
individual of equal employment opportunities or 
otherwise adversely affect his status as an employee 
or as an applicant for employment because of such 
individual’s race, color or national origin.

(J.A. 57-58.)(Emphasis added.)

Section B of the consent decree established an 
Administrator, who was empowered "to take all actions . . . 
as he deems necessary to implement the performance of the 
Order." The Administrator was not only to supervise the 
new affirmative action provisions of the decree closely, but 
also to closely supervise "employment opportunities in the 
industry on behalf of all workers." (J.A. 59) The powers of 
the Administrator included determining "all complaints that 
any individual in the bargaining units in the industry 
represented by NMDU has been allegedly denied equal 
employment opportunities on the basis of race, color or 
national origin." (App. 57a.) Some of the Administrator’s 
duties were explicitly tied to rectifying or deterring areas of



10

industry practice that were particularly abused in the past — 
e.g., use of layoffs and transfers to "jump" non-minority 
drivers over minorities, or issuing arbitrary Group lists.3

Section C of the decree, entitled "AFFIRMATIVE 
ACTION PROGRAM," provided that the defendants shall 
institute an affirmative active program "designed so that a 
sufficient number of minority workers [Black, Spanish- 
sumamed, Oriental, and American Indians] will be employed 
by the defendant employers (and accepted for membership 
by NMDU as provided herein) within the bargaining units 
represented by NMDU in order to achieve a minimum goal 
of 25% minority employment in the industry within such 
bargaining units by June 1, 1979." (J.A. 60-61; emphasis 
added.) The decree contained detailed provisions by which 
the goal of 25% minority employment by June 1, 1979, was 
to be reached. The Administrator was given broad powers 
to oversee the carrying out of the affirmative action plan and

3Judge Pierce further described the role of the Administrator: 
The Administrator appointed in these consolidated actions 
will be charged with the responsibility of seeing that the terms 
of the Settlement Agreement under Title VII of the Civil 
Rights Act of 1964 are diligently and conscientiously 
implemented. This Act was designed primarily to protect, 
and provide a more effective means to enforce, the civil rights 
of persons within the jurisdiction of the United States. It 
aims, inter alia, to eliminate discriminatory practices by 
businesses, labor unions, or employment agencies and thereby 
to encourage the growth of economic opportunities for 
minority individuals, thus strengthening the economic
foundation essential to the full enjoyment of civil rights.

* * * *
In light of these broad national purposes, this Court considers 
it of paramount importance that the Administrator it appoints 
here possess a finely tuned sensitivity to the social impact of 
past discriminatory employment practices, and a balanced 
sense of dedication and commitment to the elimination of 
these practices.^

(App. 30a.)



11

to ensure that the goal was reached. Judge Pierce 
summarized the major features of the plan:

. . . elimination of past abuses of the Group system; 
elimination of the contract provision which restricted 
Group I to former Regular Situation holders; 
provision for an orderly flow of Group III 
shapers—alternating one minority person with one 
non-minority person—into steady and secure 
employment in the industry, first as members of 
Group I and from there, as Regular Situations 
become vacant, to Regular Situations. Union 
membership will be offered to each Group III worker 
as he reaches the bottom of Group I. The plan 
further provides that until the 25% minority employment 
goal is achieved, employers shall hire, at the entry level, 
three minority persons for every two non-minority 
persons. In addition, minorities who are presently 
active on Group III at the News and the Times will 
immediately move to the bottom of the Group I list, 
with an equal number of non-minorities to 
immediately follow them onto the Group I list.

(App. 23a-24a; emphasis added.)

With regard to the 25% minority employment goal in 
particular, Judge Pierce’s opinion made findings that it was 
justified because the relevant workforce as of 1974 was 30% 
minority. Therefore he held that a goal of 25% minority 
representation in the industiy by June, 1979, was 
appropriate. (App. 28a-29a.)

The Second Circuit affirmed Judge Pierce’s order in 
all respects. In its decision it recited the long history of 
discrimination in the industry:

While the current Group Structure, which was 
adopted in 1952, appears on its face to open Union 
membership to anyone in the labor force, Union 
membership, because of lax administration of the



12

contract provisions, has largely remained attainable
only by the family and friends of a Union member.

Manipulations of the system that resulted in the maintenance 
of a virtually all-white work force included "artificial inflation 
of the Group I lists," "fictitious lay-offs," and "outright false 
assertions of Group I status by persons who have obtained 
Union membership cards, the validity of which have not been 
challenged by employers." These practices violated Title VTI 
by locking in "‘minorities at the non-union level of entry in 
the industry, and thereby . . . perpetuating] the impact of 
past discrimination.’" (App. 40a-41a.) The court affirmed 
the propriety of the 25% hiring goal specifically on the basis 
of its relationship, as found by Judge Pierce, to the relevant 
labor force as demonstrated by the 1970 census. (App. 44a.)

3. Compliance with the Affirmative Action 
Provisions.

In late 1979, defendant New York Daily News filed 
a motion seeking relief, under Rule 60(b), F. R. Civ. Proc., 
from certain provisions of the decree, particularly 
termination of the Administrator, whose term was set at five 
years, subject to being extended by the Court. Judge Pierce 
denied the motion and reappointed the Administrator as 
Interim Administrator. Judge Pierce specifically noted the 
failure of the defendants to meet the 25% goal within the 
time provided by the decree. Indeed, he found that the 
industry was only 12.16% minority, less than half of the goal 
that was set five years before. (App. 58a.)

4. The Role of the Administrator.

Throughout the life of the decree, the Administrator 
has played a vital role in overseeing compliance. Under the 
provisions of the settlement agreement, minority workers 
were able to file claims and to secure orders, where justified, 
to require compliance. Between 1974 and the end of 1981, 
at least 91 claims had been submitted and adjudicated, in 
some instances through appeals to the district court judge.



13

By the date of the dissolution of the decree, at least 278 
claims had been submitted to the Administrator. Of key 
importance, as will be discussed in more detail below, has 
been the Administrator’s role in ensuring that proper Group 
III and Group I lists were promulgated and in verifying the 
level of compliance with the Affirmative Action plan.

5. The Motions to Dissolve the Consent Decree.

In April, 1985, a number of the defendants filed new 
motions to vacate the order of Judge Pierce with regard to 
the Affirmative Action provisions and the Administrator. 
The basic argument made in support of these motions was 
that the 25% goal had been reached and that therefore the 
decree was no longer necessary.

Both the private plaintiffs and the EEOC strenuously 
objected to these motions.4 Both agreed that Section A of 
the decree, embodying permanent injunctive relief, should be 
retained in its entirety. The private plaintiffs also urged that 
the court retain both the affirmative action provisions and 
the Administrator until full compliance with the decree had 
been demonstrated.

Judge Conner ordered that notice be given to the 
class that the Consent Decree might be vacated. After 
extensive pre-hearing briefing, an evidentiary hearing was 
begun in 1987. Judge Conner suspended the hearing when 
it became evident that the defendants could not prove that 
minority employment had in fact reached an asserted 24.89% 
industry-wide. (J.A. 272-73.)

4While the EEOC initially took the position that the 
Administrator should be retained, in 1991 it took the view that only 
the permanent injunction provisions needed to be retained.



14

6. Plaintiffs’ Response — The History of Non- 
compliance.

Plaintiffs presented substantial evidence that there 
had been a consistent pattern of violations of the decree. 
Specifically, after the defendants had filed their repeated 
motions to vacate the decree, the Administrator found 
various of the defendants had violated the decree and 
engaged in intentional discrimination. The following 
examples are illustrative.

a. In 1987 the Administrator held that the Daily 
News and the NMDU had violated the decree when they 
issued a new Group III list. The Administrator required 
them to use a revised list that was constructed in adherence 
to the requirements of the permanent injunction in Part A 
of the Decree and that would be consistent with the goals 
and timetables provisions in Part C. Judge Conner affirmed 
the decision on appeal by the NMDU. (App. 68a-74a.)

b. In 1990 the Administrator held that the New York 
Times and the NMDU had engaged in intentional 
discrimination in violation of a number of the provisions of 
the Decree, including Part A  when they issued a new Group 
III list that did not comply with the 3/2 ratio required by the 
Decree. He also found that the Times and the Union 
violated 11 15 of the decree dealing with the standards to be 
followed in giving preferences to certain employees to be 
placed on a Group III list, 11 29, dealing with the 
establishment of a system for the submission of applications, 
and 1111 1 and 2, the general injunction provisions, in that 
there was intentional discriminatory treatment with regard to 
the offlist hiring of minority employees and other practices 
of the industry.5 (J.A. 415.) Again, the decision of the

5The Administrator had instructed the Times and the Union not 
to issue the list, but they did so anyway. The hearing on this matter 
(Claim 186) began in October, 1985, and ended 6,000 transcript pages 
later in May 1988. As a result of the Administrator’s subsequent



15

Administrator was affirmed by Judge Conner. (App. 75a- 
92a).

c. In 1991 the Administrator found that the NMDU 
and the Westfair Newspaper Distributors had engaged in 
intentional discrimination and retaliation in violation of Part 
A by passing over two minority workers in favor of white 
workers. (J.A. 537-38.)6

d. In 1989 the Administrator found that a black 
driver had been discharged by Metropolitan News for racially 
motivated reasons. (J.A. 397.) On appeal to Judge Conner, 
the claim was settled by giving the claimant a Regular 
Situation and damages. (Rec. #224.)7

In addition, in 1991 plaintiffs submitted to the district 
court and the Administrator, as an Offer of Proof in 
opposition to the Motions to Dissolve the Decree, the 
affidavits and declarations of 29 minority employees attesting 
to continuing acts of discrimination in violation of the 
Decree. The complained of acts included restrictions in 
training opportunities, discrimination in the filling of 
foreman and supervisory positions, and an increase in 
retaliation and threats for complaining of discrimination.

orders with regard to Claim 186, half of the 47 Regular Situation 
positions filled in the summer of 1992 went to minority workers. 
Proceedings to determine back pay for the Claim 186 claimants are 
still pending.

'This claim was settled by the parties pending an appeal to Judge 
Conner.

7In addition to these post-1985 claims, in 1984 the Administrator 
found that the New York Post and the Union had violated 1115 of the 
Decree and had obstructed "the goals of the consent decree in seeking 
minority employment.” He required the reordering of the Group I list 
and the Regular Situation Holders. Administrator’s Decision in Claim 
165, Jan. 4, 1984, p. 1. (Rec. #  69.) This order was affirmed by 
Judge Conner on July 10, 1984. (Rec. #73.)



16

Plaintiffs’ Offer of Proof and Declarations, August 19, 1991. 
(Rec. #228.)

As noted above, in 1987 Judge Conner found the 
evidence insufficient to establish that the industry as a whole 
had met the 25% goal. (J.A. 277.) However, in 1988 he 
suspended the 3/2 ratio for placing workers on the Group III 
list. (J.A. 310.) Further briefing was requested on the 
defendants’ motions to dissolve the decree. In the 
meantime, other individual claims of discrimination 
continued to be filed with the Administrator relating, inter 
alia, to carrying out the relief ordered with regard to the 
above listed matters. It was not until 1991, after Judge 
Conner ordered that compliance reports relating to the 25% 
goal be verified, that the defendants adduced legally 
competent evidence to support their claim that the goal had 
been reached and that 27.97% of the Regular Situation 
holders in the industry were minority.

The plaintiffs, on the other hand, argued that the goal 
should be adjusted to reflect the current labor market, which 
had increased to 42.4% minority according to the 1980 
census8 and to over 50% minority according to the 1990 
census.9 Since the 25% goal had not been reached until 12 
years after the decree required, they suggested, the goal 
should be adjusted to reflect changed circumstances.

7. The Decision of the District Court.

On August 8, 1992, Judge Conner issued his decision 
dissolving the consent decree and the injunction embodied 
in it in its entirety. The reason given was that the 25% goal 
had been reached and that therefore the purpose of the 
decree had been satisfied. With regard to the private 
plaintiffs’ evidence that the defendants had violated anti­

8Judge Conner accepted this figure as accurate. (J.A. 265.)

9J.A  697-98.



17

discrimination provisions of the decree in a variety of 
respects, the court held:

Even assuming, arguendo, the LDF’s proposition that 
defendants have continued to violate the Consent 
Decree and that discrimination remains prevalent in 
the industry, such arguments are not relevant to 
defendants’ application for vacation of the Consent 
Decree.

*  *  *

. . . The Court granted the LDF an opportunity to 
request an evidentiary hearing before the 
Administrator on the only fact relevant to the issue of 
whether to terminate the Consent Decree — whether the 
25% minority employment goal has been achieved. The 
LDF did not avail itself of that opportunity for over 
six months and cannot be heard to complain now.

(App. 114a-115a; emphasis added.)

The private plaintiffs filed a notice of appeal and a 
motion to reinstate the injunction pending appeal. In 
support of that motion they introduced affidavits from 
minority workers alleging further current discriminatory 
actions. (J.A. 719-77.) Although the district court denied 
that motion, it reaffirmed the jurisdiction of the 
Administrator to enforce prior orders and to resolve claims 
filed prior to August 8,1992. (App. 127a-128a.) The EEOC 
also filed a notice of appeal. As noted above, the Court of 
Appeals affirmed the decision of the district court without 
mentioning, let alone addressing, the evidence of continuing 
violations of the decree.



18

R e a s o n s  f o r  G r a n t in g  t h e  W r it  

In t r o d u c t io n

This case presents important issues concerning the 
standards that govern the dissolution of a consent decree 
entered as part of a negotiated settlement. Although this is 
a civil rights case, the decision below necessarily applies to 
all actions brought under federal law in federal court. First, 
the case raises squarely the question of whether this Court’s 
seminal decision in United States v. Swift & Co., 286 U.S. 106 
(1932) has any continuing vitality or whether, as the lower 
court held, it has been overruled sub silentio by Rufo v.
Inmates o f Suffolk County Jail, 502 U.S.___, 116 L.Ed.2d 867
(1992).10

Second, the case raises the question of the meaning 
of the requirement reiterated by this Court in Freeman v.
Pitts, 503 U .S .___, 118 L.Ed.2d 108, 139 (1992), Board of
Education of Oklahoma City Public Schools v. Dowell, 498 
U.S. 237, 249-50 (1991) and Rufo, 116 L.Ed.2d at 886-87, 
that a defendant has a heavy burden of demonstrating good 
faith and substantial compliance with a consent decree as a 
precondition to having it modified or dissolved.

Third, the decision below has important implications 
concerning the binding effect of negotiated settlements and 
the impact on the settlement process of defendants being 
able to obtain dissolutions of consent decrees without 
demonstrating full compliance with all aspects of the 
agreement. In short, the question is, should a prohibitory 
injunction be vacated in the face of proof of continuing 
violations, based solely on proof (here disputed) that relief

10Here, the issue arises in a case involving a negotiated settlement 
that embodies an injunction. The issue of whether the standard of 
Swift or that of Rufo governs modification or dissolution of an 
injunction also arises when the injunction has been imposed by a 
federal court as a result of a litigated case.



19

designed to remedy past acts of discrimination has been 
carried out.

I. T h e  Ca s e  Pr e se n t s  a n  Im p o r t a n t  Q u e st io n  
R e g a r d in g  t h e  St a n d a r d  T h a t  Sh o u l d  
G o v e r n  t h e  D isso l u t io n  o f  Co n s e n t  D e c r e e s  
A b o u t  W h ic h  T h e r e  Is C o n flic t  B e t w e e n  th e  
C ir c u it s .

The basis for the decision below was that the 
standard established for modifying or dissolving consent 
decrees established by United States v. Swift & Co., supra, 
had effectively been superseded by this Court’s decisions in 
Dowell and Rufo. The court acknowledged that the district 
court’s decision in this case was apparently the first that so 
held (App. 8a.) It also acknowledged that "[ajmong other 
circuits, there appears to be some dispute as to the 
appropriate standard for modifying consent judgments." 
(App. 9a.)

Indeed, it is apparent that there is both conflict and 
uncertainty in the lower federal courts as to whether Dowell 
and Rufo overruled Swift & Co. Thus, while the Seventh 
Circuit has held that Swift & Co, was completely overruled 
by Rufo (In re Hendrix, 986 F.2d 195, 198 (7th Cir. 1993)), 
the Sixth and Eighth Circuits have only applied Rufo to 
cases involving governmental entities (Lorain NAACP v. 
Lorain Bd. o f Educ., 979 F.2d 1141 (6th Cir. 1992); Epp v. 
Kerrey, 964 F.2d 754 (8th Cir. 1992)), and the Federal Circuit 
has declined to apply the Rufo standard to commercial 
litigation involving a private defendant (W.L. Gore & 
Associates, Inc. v. C.R. Bard, Inc., 977 F.2d 558 (Fed. Cir. 
1992)). The lack of certainty in the lower courts was 
recently discussed in the A.T. & T. anti-trust case, United
States v. Western Electric Co:, In c .,__ F. Supp. ___ , 1994
WL 143082, p. 6 (D.D.C. April 5, 1994), citing United States 
v. Western Electric, Co., Inc., 969 F.2d 1231, 1235 n. 7 (D.C. 
Cir. 1992).



20

Of course, neither Dowell nor Rufo explicitly 
overruled Swift & Co. To the contrary, those decisions only 
held that the Swift standard should not be applied to cases 
involving local government institutions because permanent 
governance by a federal court tended to undermine the 
representative and democratic character of such institutions. 
The fact that Swift was not explicitly overruled, in decisions 
that discuss its principles at some length, militates against a 
conclusion that Swift was, nevertheless, overruled sub silentio.

In any event, given the importance of the role of 
settlement and consent decrees in disposing of litigation in 
the federal courts, it is imperative that both litigants and the 
lower courts understand clearly what is the standard 
governing modification and dissolution of consent decrees. 
Therefore, this Court should grant certiorari to clarify and 
make explicit whether and to what extent the Swift standard 
still has vitality.

II. T h e  D e c isio n s  o f  t h e  C o u r t s  B e l o w  C o n f l ic t  
W it h  D e c isio n s  o f  T h is  C o u r t  T h a t  R e q u ir e  
T h a t  a  D e f e n d a n t  D e m o n s t r a t e  C o m p l ia n c e  
W it h  a  C o n s e n t  D e c r e e  B e f o r e  T h e  D e c r e e  
Ca n  B e  D is s o l v e d .

As set out above, the district court itself had held on 
a number of occasions after the motions to dissolve the 
injunction had been filed, that both the Union and various 
of the other defendants had violated the decree and, indeed, 
had committed acts of intentional discrimination. Moreover, 
the private plaintiffs, petitioners herein, had introduced and 
proffered extensive evidence of other violations of specific 
provisions of the decree during the same period of time.

Nevertheless, the district refused to consider this 
evidence, holding that it was "irrelevant" in deciding whether 
to dissolve the decree in its entirety. Rather, it held that 
since one provision of the decree, that the industry have 25%



21

minority drivers, had been complied with, the decree could 
be dissolved.11

Under the decisions of this Court, it was clear error 
for the district court to hold that whether the defendants 
had continued to violate the consent decree was irrelevant 
to whether the decree should be dissolved. It was also error 
for the Court of Appeals to fail even to address this 
contention of plaintiffs. Thus, in Dowell the Court directed 
the district court to "address itself to whether the Board had 
complied in good faith with the . . . decree since it was 
entered" in deciding whether the decree should be dissolved. 
498 U.S. at 249-50. Rufo held that where modification of a 
decree is sought because of unforeseen changed 
circumstances that make compliance difficult or 
"substantially more onerous," the party seeking modification 
must "satisfy a heavy burden" to demonstrate that it "made 
a reasonable effort to comply with the decree." 116 L.Ed. 2d 
at 886-87. And in Freeman, the Court made clear that a 
demonstration by the defendant of good faith compliance 
with a decree is a prerequisite to being relieved of its 
requirements. Thus, "[w]hen a school district has not
demonstrated good faith under a comprehensive plan to 
remedy ongoing violations, we have without hesitation 
approved comprehensive and continued district court 
supervision." 118 - L.Ed.2d at 139. Moreover, a 
demonstration of good faith compliance with part of decree

uThe petitioners continue to dispute whether even this provision 
of the decree had been complied with. The decree is clear that the 
goal was to achieve 25% minority representation by June 1, 1979, 
when such representation would reasonably reflect the relevant labor 
market. That goal was not achieved, and the defendants could not 
demonstrate that the industry was over 25% until 1991, twelve years 
late, and when the relevant labor market was over 50% minority. 
Thus, the effect of the lower court decision was to convert a goal 
designed to measure reasonable compliance into a rigid upper-limit 
quota that freed the defendants from further compliance with the 
settlement.



22

can only result in relief from those parts of the decree 
complied with. Id. at 139-40.

The decision below is therefore in clear conflict with 
governing decisions of this Court. Even if the Swift standard 
does not govern, the decisions in Dowell, Rufo, and Freeman 
mandate reversal.

III. T h e  D e c isio n  o f  t h e  C o u r t  B e l o w  W ill

U n d e r m in e  t h e  Se t t l e m e n t  o f  Ca se s  in
F e d e r a l  C o u r t .

This Court has repeatedly held that the settlement of 
cases is highly favored, and has applied this rule to civil 
rights litigation on a number of occasions. See, e.g., Evans 
v. Jeff D., 475 U.S. 717, 732-33 (1986); Marek v, Chesny, 473 
U.S. 1, 10 (1985). Albeit unintentionally, the decision below 
will substantially discourage plaintiffs from settling complex 
employment discrimination and other civil rights litigation.

Settlement decrees in these types of cases are 
achieved through an extensive and complicated process of 
negotiation. The result is inevitably a compromise, based on 
interdependent promises and obligations. A carefully 
framed decree will spell out the relationships between its 
provisions and when and under what circumstances certain 
provisions may be terminated. The decree in the present 
case is no exception.

As set out in the Statement of the Case above, the 
decree contained general prohibitions against discrimination, 
as well as a variety of specific obligations undertaken by the 
defendants, including receiving and processing applications 
for membership, the handling of grievances on a 
nondiscriminatory basis, the admission to membership in the 
Union of persons listed on an employer’s Group I list on the 
same basis as others, assisting persons to obtain and retain 
membership, and the maintenance of registers and other



23

records. The decree also contained affirmative action 
provisions keyed to the goal of 25% minority representation 
by June 1, 1979, and provided for an Administrator to 
oversee the carrying out of the decree and to receive and 
adjudicate complaints of noncompliance.

The affirmative action provisions are intended to 
further the fundamental purpose of the decree that are set 
out in Part A ,i.e., the elimination of discrimination in the 
industry. The 25% representation was to be reached by 
June 1, 1979, when that representation was still related to 
the relevant labor market. If that goal was met on time, 
then the 50% and 60% hiring ratios would end. However, 
the settlement contemplated that the permanent parts of the 
decree would remain, and that the defendants would 
continue to be enjoined from engaging in discrimination 
prohibited by Title VII and by the decree itself, as well as 
required to follow various procedures set out in the decree. 
Of course, under principles now made clear by this Court, 
the defendants could seek the dissolution of even these parts 
of the decree by meeting their burden of demonstrating 
good faith compliance, i.e., that they were no longer engaged 
in acts of discrimination. This they utterly failed to do.

Rather, the Court of Appeals has sanctioned virtually 
unlimited and unreviewable discretion to district courts to 
rewrite and dissolve a comprehensive settlement if any part 
of it has been complied with. This result derives from what 
the court below termed a "flexible standard for modifying 
decrees" whose purpose is to correct pervasive discrimination 
in an entire industry.

The message of the decision below to defendants, 
therefore, is that belated compliance with some goal 
embodied within a complex decree will mean freedom from 
all other contractual obligations into which they freely 
entered. The message to plaintiffs is equally clear; they can 
no longer rely on the sanctions of the law to enforce a 
settlement decree carefully negotiated and approved. Not



24

only do defendants not have to demonstrate compliance, but 
their protracted violation of a decree will be deemed 
"irrelevant." Plaintiffs’ proof of continuing and serious 
breaches of an agreement and continued rampant 
discrimination will result in their being told that they must 
bring a new lawsuit.12 Intransigence, if persisted in long 
enough, will thus be rewarded.

The combined force of these messages to plaintiffs is 
that only if they go forward and prove discrimination can 
they have confidence that a decree will remain in force until 
it is obeyed. A settlement, no matter how broad and 
inclusive it may be, cannot be relied upon. Such a result 
destroys any incentive for plaintiffs to enter into a settlement 
and, therefore, undermines the favored status of settlements 
established by decisions of this Court.

12See the Appendix at 114a-116a.



25

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 
D irecto r -Co u n sel

Th e o d o r e  M. Shaw  
Charles Steph en  Ralsto n  
(Counsel of Record)

NAACP Leg al  D efense  a n d  
E d u c a tio n a l  Fu n d , In c .
99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

Pe n d a  D . Ha ir  
NAACP Leg al  D efense  a n d  
Ed u c a tio n a l  Fu n d , In c . 
1275 K. Street, N.W,
Suite 301
Washington, D.C. 20005 
(202) 682-1300

Attorneys for Petitioners