Patterson v. Newspaper and Mail Deliverers Union Brief in Opposition

    No. 93-1784

3fn tlje Suprem e Court of tfjr llm trb S tates
October Term, 1993

John Patterson, et al., petitioners

v.
Newspaper and Mail Deliverers Union, et al.

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

BRIEF FOR THE EQUAL EMPLOYMENT 
OPPORTUNITY COMMISSION IN OPPOSITION

Drew S. Days, III 
Solicitor General 
Department o f Justice 
Washington, D.C. 20530 
(202) 5U-2217

James R. Neely, Jr.
Deputy General Counsel

Gwendolyn Y oung Reams 
Associate General Counsel 

V incent J. Blackwood 
Assistant General Counsel 

Jennifer S. Goldstein 
Attorney
Equal Employment Opportunity Commission 
Washington, D.C. 20507



QUESTIONS PRESENTED
1. Whether the standards for modifying consent 

decrees set forth in Board of Education of Oklahoma 
City Public Schools v. Dowell, 498 U.S. 237 (1991), and 
Rufo v. Inmates of Suffolk County Jail, 112 S. Ct. 748 
(1992), apply to cases involving non-governmental 
defendants.

2. Whether the termination of the consent decree in 
this case was consistent with Dowell and Rufo.

(I)





TABLE OF CONTENTS
Page

Opinions below ............................................................................ 1
Jurisdiction................................................................................. 1
Statement .................................................................................... 2
A rgum ent.................................................................................... 6
Conclusion......................................................................................... 12

TABLE OF AUTHORITIES

Cases:
Board o f Education o f Oklahoma City Public Schools v.

Dowell, 498 U.S. 237 (1991)..............................................  4, 9, 11
Epp v. Kerrey, 964 F.2d 754 (8th Cir. 1992)........................  10
Freeman  v. Pitts, 112 S. Ct. 1430 (1992)....................  10, 11
Hendrix, In re, 986 F.2d 195 (7th Cir. 1993).............................  10
Local 93, Int’l Ass’n o f Firefighters v. City o f Cleveland,

478 U.S. 501 (1986) .......................................................... 7
Local 28, Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478

U.S. 421 (1986) .................................................................... 7
Lorain NAACP  v. Lorain Bd. o f Educ., 979 F.2d 1141

(6th Cir. 1992), cert, denied, 113 S. Ct. 2998 (1993).......  10
Rufo v. Inmates o f Suffolk County Jail, 112 S. Ct. 748

(1992) ...................................................................................  4, 9, 11
United States v. Swift & Co., 286 U.S. 106 (1932)........  4, 9
W.L. Gore & Associates v. C.R. Bard, Inc., 977 F.2d 

558 (Fed. Cir. 1992)................................................................. 10

Statute:
Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e 

et seq......................................................................................  2, 6, 7

(H I )



I n  tl)e Suprem e Court of tlje Winitzb States!
October Term, 1993

No. 93-1784

John Patterson, et al., petitioners

v.

Newspaper and Mail Deliverers Union, et al.

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

BRIEF FOR THE EQUAL EMPLOYMENT 
OPPORTUNITY COMMISSION IN OPPOSITION

OPINIONS BELOW
The opinion of the court of appeals (Pet. App. la-12a) is 

reported at 13 F.3d 33. The opinion of the district court 
(Pet. App. 100a-121a) is reported at 797 F. Supp. 1174.

JURISDICTION
The judgment of the court of appeals was entered on 

December 20, 1993. A petition for rehearing was denied 
on February 7, 1994. Pet. App. 13a-14a. The petition for 
a writ of certiorari was filed on May 9, 1994 (a Monday). 
The jurisdiction of this Court is invoked under 28 U.S.C. 
1254(1).

(1)



2

STATEMENT
1. The Newspaper and Mail Deliverers’ Union 

(NMDU) controls access to jobs in the newspaper 
delivery industry in the New York City area. Pet. App. 
2a. From 1901 until 1952, NMDU was an all-white union 
that limited its membership to the first-born, legitimate 
sons of union members. Id. at 2a, 20a. In 1952, with the 
cooperation of the area’s newspapers and publishers, 
NMDU adopted a series of work rules that theoretically 
opened up employment opportunities to the entire labor 
force. Id. at 2a-3a, 20a-21a. In practice, however, friends 
and relatives of union members continued to receive 
favored treatment and minorities continued to be ex­
cluded from industry jobs. Id. at 21a. As of 1973, 
minorities constituted 30% of the qualified labor pool, but 
only 2% of the deliverers. Id. at 4a, 21a-22a.

In that year, minority deliverers and the Equal 
Employment Opportunity Commission (EEOC) filed suit 
against NMDU and the newspapers and publishers in the 
New York City area (respondents). They alleged that 
the 1952 system perpetuated discrimination against 
minority workers in violation of Title VII of the Civil 
Rights Act of 1964. Pet. App. 3a. In 1974, after the case 
was tried but before the district court issued a decision, 
the parties entered into a settlement agreement that was 
incorporated into a consent decree. Id. at 3a-4a.

The decree contained four operative components. 
First, it permanently enjoined respondents from 
discriminating against minorities. Pet. App. 4a. Second, 
it provided for the appointment of an Administrator to 
implement the provisions of the agreement. The 
Administrator was to have a five-year term, which could 
be extended “as the Court may direct.” Ibid. Third, the 
agreement established “a minimum goal of 25% minority



3

employment in the industry . . .  by June 1, 1979.” Id. at 
4a-5a. Specific hiring ratios were established to 
facilitate the achievement of that goal. Id. at 5a. Finally, 
the decree contained specific provisions related to the 
hiring process, such as the establishment of application 
procedures. Ibid. The purpose of the decree was “to 
correct the * * * statistical imbalance [in the
industry], to remedy and eradicate its effects, and to put 
minority individuals in the position they would have 
occupied had the * * * statistical imbalance not 
existed.” Id. at 4a.

By 1979, the year the 25% goal was to have been met, 
minorities constituted only 13.3% of those employed in 
the industry. Pet. App. 5a. In that year, the court 
extended the Administrator’s term for another five 
years. Ibid. In 1984, the court extended the Adminis­
trator’s term indefinitely. Ibid.

2. In 1985, respondents moved to vacate the decree on 
the ground that the 25% goal had been attained. Pet. 
App. 5a. The court deferred consideration of the motion 
until further evidence was produced that the goal had 
been met industry-wide. Id. at 6a. In 1988, based on 
preliminary evidence on that issue, the court suspended 
the decree’s hiring ratios pending the resolution of the 
motion to vacate. Ibid. In 1991, the Administrator 
verified that the industry had achieved 25% minority 
employment, and the district court scheduled a hearing 
on the motion to vacate. Ibid.

Petitioners opposed vacation of any part of the decree. 
Pet. App. 6a. The EEOC did not oppose eliminating the 
affirmative action provisions or the Administrator, but it 
sought to retain the permanent injunctions against 
discrimination and several other provisions designed to 
ensure nondiscriminatory hiring. Ibid.



4

The district court granted respondents’ motion to 
vacate the decree in its entirety. The court held that 
“ [t]he Settlement Agreement is one cohesive document 
the goal of which was to increase minority employment 
in the industry to 25%.” Pet. App. 116a. Because that 
goal has been accomplished, the court concluded, “the 
Decree has served its purpose, and its vacation, con­
sistent with the intent which accompanied its entry, is 
appropriate.” Id. at 117a.

In reaching that conclusion, the court rejected the 
argument that under United States v. Swift & Co., 286 
U.S. 106 (1932), only a “grievous harm” evoked by new or 
unforeseen conditions could justify vacating a consent 
decree. Pet. App. 107a. The court held that Board of 
Education of Oklahoma City Public Schools v. Dowell, 
498 U.S. 237 (1991), and Rufo v. Inmates of Suffolk 
County Jail, 112 S. Ct. 748 (1992), had established a more 
flexible standard, permitting a decree to be vacated when 
its essential purpose has been achieved. Pet. App. 107a- 
109a.

The court also rejected the argument that continuing 
discrimination by respondents precluded vacating the 
decree. The court held that even assuming that 
respondents “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.” Pet. 
App. 114a. The court concluded that “the only fact 
relevant to the issue of whether to terminate the 
Consent Decree [is] whether the 25% minority employ­
ment goal has been achieved.” Id. at 115a.

3. The court of appeals affirmed. Pet. App. la-12a. 
The court held that the district court had properly 
evaluated the motion to vacate under the flexible 
standard of Dowell and Rufo, rather than under Swift’s



5

grievous harm standard. Id. at 7a-10a. The court 
concluded that the flexible standard “is not limited to 
cases in which institutional reform is achieved in 
litigation brought directly against a governmental 
entity.” Id. at 9a. Rather, “[i]f a decree seeks pervasive 
change in long-established practices affecting a large 
number of people, and the changes are sought to 
vindicate significant rights of a public nature, it is 
appropriate to apply a flexible standard in determining 
when modification or termination should be ordered in 
light of either changed circumstances or substantial 
attainment of the decree’s objective.” Ibid.

Applying that standard, the court first addressed the 
affirmative action provisions in the decree. It concluded 
that the district court did not abuse its discretion in 
vacating those provisions. Pet. App. 10a-12a. Although 
it was “clear that the 25 percent figure [in the decree] 
was chosen with reference to the 1970 census figure of a 
30 percent minority workforce,” the court observed that 
“ [nevertheless, the decree does not suggest that its 
purpose is to achieve total parity, and the 25 percent 
figure, as a numerical goal, is stated in absolute terms, 
without any suggestion that it is subject to mod­
ification.” Id. at 11a. In addition, “[b]oth the difficulty of 
achieving [the] 25 percent goal and the likelihood that 
the percentage of minorities in the blue collar workforce 
would increase were foreseeable in 1974.” Ibid. Thus, 
while the district court “might have had discretion to 
raise the 25 percent figure as a remedy for not meeting it 
[a]s originally contemplated,” that court “was surely 
entitled to conclude that such an increase was not 
required.” Id. at lla-12a. And if the percentage goal was 
not increased, it was proper for the district court to 
vacate the decree’s hiring ratios once the 25% goal was 
met. Ibid.



6

With regard to the remainder of the decree, the court 
agreed with the district court “that the decree has 
served its purpose, and that all of its provisions may be 
ended.” Pet. App. 12a. The court did not “decide that the 
District Court was required to vacate these additional 
provisions, only that it was entitled to do so.” Ibid. The 
court explained that “ [application of the flexible 
standard * * * entitles a court of equity to focus on the 
dominant objective of any decree and to terminate the 
entire decree once that objective has been reached.” 
Ibid.1

ARGUMENT
1. The court of appeals erred in concluding that the 

dominant objective of the consent decree was to achieve 
the numerical goal of 25% minority representation in the 
newspaper delivery industry. That interpretation un­
duly emphasizes one remedial section of the decree to the 
exclusion of other sections of equal importance. In 
particular, that interpretation cannot be reconciled with 
the very first section of the decree which permanently 
enjoined respondents from discriminating on the basis of 
race. Pet. App. 123a-124a. On its face, that important 
prohibition is entirely independent of the provision 
setting a numerical goal of 25% minority employment 
and reflects the decree’s larger purpose of ending 
pervasive discrimination in the newspaper delivery 
industry.

The court of appeals’ interpretation of the decree also 
departs sharply from the normal understanding of the 
purpose of numerical goals. Under Title VII, such goals

1 At the outset of its opinion, the court of appeals had stated its 
conclusion that the district court “was entitled to vacate the entire 
consent decree since its essential purpose had been achieved.” Pet. 
App. 2a.



7

are not ends in themselves. Rather, they are 
benchmarks to assist in the more fundamental goal of 
eliminating pervasive employment discrimination. Local 
28, Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 
421, 448-449, 477-478 (1986) (plurality opinion); id. at 486- 
487 (Powell, J., concurring in part and concurring in the 
judgment). Under the interpretation adopted by the 
court of appeals, however, the provisions prohibiting 
discrimination in the newspaper delivery industry were 
merely designed to facilitate the achievement of the 
numerical 25% employment objective. That inter­
pretation of the decree turns Title VII remedial law 
upside down and elevates the achievement of numerical 
goals over the purpose of eliminating discrimination. 
Although parties are free to agree to remedies that a 
court could not order (Local 93, Int’l Ass’n of 
Firefighters v. City of Cleveland, 478 U.S. 501, 525 
(1986)), a court should be reluctant to construe a Title 
VII consent decree in a manner that is so fundamentally 
at odds with the statute’s underlying purpose.

Nothing in the language of the decree in this case 
shows that the parties were concerned solely or 
primarily with achieving 25% minority employment and 
that they had little or no interest in the goal of ending 
the pervasive discrimination that gave rise to the 
litigation in the first place. The general statement in 
the decree (Pet. App. 4a) that its purpose was “to correct 
the * * * statistical imbalance [in the industry], to 
remedy and eradicate its effects, and to put minority 
individuals in the position they would have occupied had 
the * * * statistical imbalance not existed” does not 
suggest that the parties did not care about ending the 
industry’s history of pervasive discrimination. Indeed, 
even the court of appeals recognized that this language 
could be read to support that broader purpose. Id. at 11a.



8

Because a primary purpose of the decree was to end 
pervasive discrimination in the newspaper delivery 
industry, the district court clearly erred (Pet. App. 114a- 
115a) in treating evidence that respondents were still 
actively engaged in such discrimination as irrelevant to 
the decision whether to terminate the decree. Similarly, 
the court of appeals was wrong (id. at 12a) to conclude 
that the district court had discretion to terminate the 
decree in the presence of such evidence. The flexibility 
of a court of equity to dissolve a consent decree does not 
include authority to dissolve a decree designed to end 
pervasive racial discrimination without an affirmative 
showing by defendants that such discrimination has 
either ceased or become insignificant.2

Although the court of appeals erred in approving the 
district court’s dissolution of the consent decree, that 
error alone does not warrant this Court’s review. The 
court of appeals’ decision is case specific; it does not hold 
that satisfaction of a numerical goal in a consent decree 
always requires or even justifies that decree’s 
dissolution. Indeed, the court of appeals expressly 
distinguished the decree in this case from one that

2 In some situations, a showing that a numerical goal has been 
reached might help to prove that pervasive discrimination had 
ended. Here, however, the decree required respondents to reach 
their 25% goal by 1979, and the goal was not reached until many 
years later. By then, the percentage of minorities in the qualified 
labor pool had increased substantially (to approximately 50%), so 
that there remained a very substantial disparity between the 
percentage of minorities in respondents’ work force and the 
percentage of minorities in the qualified pool. Moreover, there is 
evidence in this case that respondents engaged in numerous 
instances of intentional discrimination during the life of the 
decree. Pet. 14-16. In these circumstances, respondents’ satis­
faction of the 25% goal could not constitute proof that pervasive 
discrimination had ended.



9

described its purpose in somewhat broader language. 
Pet. App. 11a. The holding here approves the district 
court’s exercise of discretion in light of the particular 
language of the decree in this case. That fact-bound 
decision, while erroneous, does not conflict with the 
decision of any other court of appeals and does not appear 
to raise any issue of general importance.

2. Petitioners urge the Court to grant review to 
decide whether the standards that this Court announced 
in Dowell and Rufo for modifying decrees should apply in 
cases involving non-governmental defendants. This case, 
however, is not an appropriate one in which to resolve 
that question.

In Swift, 286 U.S. at 119, this Court stated that 
“ [n]othing less than a clear showing of grievous wrong 
evoked by new and unforeseen conditions” could justify 
vacating a decree. In Dowell and Rufo, this Court held 
that Swift’s strict “grievous wrong” standard does not 
apply when governmental defendants seek to modify a 
decree. Dowell, 498 U.S. at 246-247; Rufo, 112 S. Ct. at 
757-758. In Dowell, this Court held that a finding that a 
school district “was being operated in compliance with 
the commands of the Equal Protection Clause of the 
Fourteenth Amendment, and that it was unlikely * * * 
[to] return to its former ways” would justify dissolution 
of a desegregation decree. 498 U.S. at 247. In Rufo, this 
Court held that a governmental defendant may obtain a 
modification of a consent decree by showing that a 
significant change in circumstances warrants revision 
of the decree.” 112 S. Ct. at 760. The court of appeals 
held that the “flexible” standards announced in Dowell 
and Rufo applied in this case, even though respondents 
are not governmental defendants. Pet. App. 9a-10a.

That holding, however, may not have been critical to 
the court of appeals’ judgment. Because the court of



10

appeals concluded that respondents had achieved the 
main purposes of the decree by reaching 25% minority 
employment, it might well have arrived at the same 
result in this case even if it had not relied upon Dowell 
and Rufo. Accordingly, the question whether the court 
of appeals erred in relying on those decisions is not 
squarely presented by this case.

In addition, the court of appeals’ holding was that the 
flexible standards announced in Dowell and Rufo apply 
when a decree “ seeks pervasive change in long- 
established practices affecting a large number of people, 
and the changes are sought to vindicate significant 
rights of a public nature.” Pet. App. 9a. That holding 
does not conflict with the holding of any other court of 
appeals. The Seventh Circuit has indicated that a 
flexible standard applies in all cases. In re Hendrix, 986 
F.2d 195, 198 (1993). The Sixth and Eighth Circuits have 
applied the more flexible standard only to cases involving 
governmental defendants, Lorain NAACP v. Lorain Bd. 
of Educ., 979 F.2d 1141 (6th Cir. 1992), cert, denied, 113 
S. Ct. 2998 (1993); Epp v. Kerrey, 964 F.2d 754 (8th Cir. 
1992), but those circuits have not yet addressed whether 
or to what extent a flexible standard might also apply in 
cases involving non-governmental defendants. Finally, 
although the Federal Circuit refused to apply Rufo to 
purely “commercial disputes,” it has indicated that Rufo 
applies to cases involving non-governmental “service” 
institutions, a category that might well include 
respondents. W.L. Gore & Associates v. C.R. Bard, Inc., 
977 F.2d 558, 561-562 (1992). The question whether a 
flexible standard would apply in a case like this one thus 
remains open in that circuit.

3. Finally, petitioners contend (Pet. 20-22) that the 
court of appeals’ decision is inconsistent with Dowell, 
Rufo, and Freeman v. Pitts, 112 S. Ct. 1430 (1992). In



11

those decisions, this Court held that a good faith effort to 
comply with a decree is a prerequisite to obtaining a 
modification of that decree. Dowell, 498 U.S. at 249-250; 
Rufo, 112 S. Ct. at 761; Freeman, 112 S. Ct. at 1450. 
Moreover, in Freeman, this Court held that a showing of 
good faith compliance with one portion of a decree can 
result in relief only from that specific portion of the 
decree. 112 S. Ct. at 1445-1446. Because respondents 
only demonstrated their compliance with one provision 
in the decree, petitioners contend that the court of 
appeals erred in approving the dissolution of the entire 
decree. Pet. 21-22.

Petitioners’ argument assumes that achieving 25% 
minority employment was simply one purpose of the 
decree. While we agree with petitioners on that point, 
the court of appeals did not. As we have noted, the court 
of appeals concluded that achieving 25% minority 
employment was the essential purpose of the decree. If 
that premise is accepted, petitioners’ showing that they 
met the 25% goal was sufficient to establish that the 
decree has served its purpose. Under Dowell, such a 
showing can justify dissolution of a decree. 498 U.S. at 
247.

Petitioners’ real disagreement is with the court of 
appeals’ interpretation of the decree in this case. While 
we share that disagreement, that fact-specific issue does 
not warrant this Court’s review.



12

CONCLUSION
The petition for a writ of certiorari should be denied. 
Respectfully submitted.

Drew S. Days, III 
Solicitor General

James R. Neely, Jr.
Deputy General Counsel

Gwendolyn Y oung Reams 
Associate General Counsel 

V incent J. Blackwood 
Assistant General Counsel 

Jennifer S. Goldstein 
Attorney
Equal Employment Opportunity Commission 

June 1994