Barnard v. Gulf Oil Company Petition for Rehearing and Suggestion for Rehearing En Banc
Public Court Documents
June 28, 1979
Cite this item
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Brief Collection, LDF Court Filings. Barnard v. Gulf Oil Company Petition for Rehearing and Suggestion for Rehearing En Banc, 1979. 05e30cbc-c69a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/a52eca22-b42a-48df-aa5c-410df575a9d0/barnard-v-gulf-oil-company-petition-for-rehearing-and-suggestion-for-rehearing-en-banc. Accessed April 13, 2025.
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 77-1502
WESLEY P. BERNARD, et al.„
Plaintiffs-Appeliants,
vs.
GULF OIL COMPANY, et al.,
Defendants-Appellees.
On Appeal From The United States District Court
For The Eastern District of Texas
PETITION FOR REHEARING AND
SUGGESTION FOR REHEARING EN BANC
STELLA M. MORRISON
1015 East Gulfway Drive
Port Arthur, Texas 77640
ULYSSES GENE THIBODEAUX
425 Alamo Street
Lake Charles, Louisiana 70601
CHARLES E. COTTON
Suite 500 - 348 Baronne Street
New Orleans, Louisiana 70601
BARRY L. GOLDSTEIN
806 15th Street, N.W.
Washington, D.C. 20006
JACK GREENBERG
PATRICK O. PATTERSON
10 Columbus Circle
New York, New York 10019
Attorneys for Plaintiffs-Appellants
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 77-1502
WESLEY P. BERNARD,
GULF OIL COMPANY,
et al.,
Plaintiffs-Appellants,
vs.
et al.,
Defendants-Appellees.
On Appeal from The United States District Court
for The Eastern District of Texas
CERTIFICATE REQUIRED BY LOCAL RULE 13.6.1
The undersigned, counsel of record for the plain
tiff s-appellants, certifies that the following listed par
ties have an interest in the outcome of this case. These
representations are made in order that Judges of this Court
may evaluate possible disqualification or recusal.
1. Wesley P. Bernard, Elton Hayes, Sr., Rodney
Tizeno, Hence Brown, Jr., Willie Whitley, and Willie Johnson,
plaintiffs.
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2. The class of all black employees now employed
or formerly employed by defendant, Gulf Oil Company, in Port
Arthur, Texas, and all black applicants for employment at
Gulf Oil Company who have been rejected for employment at
said company.
3. Oil, Chemical and Atomic Workers International
Union, and Local Union No. 4-23, Oil, Chemical and Atomic
Workers International Union, defendants.
4. International Association of Machinists and
Aerospace Workers, Port Arthur Lodge No. 823; International
Association of Machinists and Aerospace Workers; International
Brotherhood of Electrical Workers, Local Union No. 390; In
ternational Brotherhood of Electrical Workers, AFL-CIO; United
Transportation Local Union; International United Transportation
Union; Bricklayers, Masons, and Plasterers International Union,
Local 13; and International Bricklayers, Masons, and Plasterers
Union: prospective defendants named in plaintiffs' motion
to join additional defendants and for leave to amend >.he
complaint. This motion was pending when the district court
granted summary judgment for the existing defendants.
5. Gulf Oil Corporation, Defendant-Appellee;
Affiliates of Gulf Oil Corporation are as follows:
Afran Bahamas Limited; Afran Transport Company;
A-Jin Chemical Company, Ltd.; American Heavy Lirt Shipping
Company; Andogas, S.A.; Argentine Gulf Oil Company; Australian
Gulf Oil Company; Bahamas Gulf Oil Company; Belgulf Tankers N.V.
Bio Research Center Company, Limited; Blackships, Inc.; Bolivian
Gulf Oil Company; Brazilian Gulf Oil Company; Britama Tankers
Limited; Bulk Petroleum Corporation; Burgan Pension Fund Trustees
Limited; Cabinda Gulf Oil Company; Caribbean Gulf Refining Cor
poration; China Gulf Oil Company Limited; China Gulf Plastics
Corporation; Chinhae Chemical Company, Ltd.; Colombian Gulf Oil
Company; Colonial Pipeline Company; Compania Ecuatoriana
Texaco y Gulf, S.A.; Compania Maritima Rio Gulf, S.A.; Compania
Petrolera Aguarico, S.A.; Coral Gulf Oil Company; County Airport
Corporation; Dansk Olia-Import A/S; Det Gronlandske Olieaktieselskab;
Dixie Pipeline Company; Eastern Gulf Oil Company Limited; Eastern
Venezuela Gas Transport Company; Ecuadorian Gulf Oil Company;
Explorer Pipeline Company; Four Corners Pipe Line Company;
"400" Oil Co., The (A Division of Bulk Petroleum Corporation);
Frisia Minerallolien B.V.
• Gaelic Oil Company Limited, The; Global Energy
Operations and Management Company-International (A Division
of Transocean Gulf Oil Company); Global Energy Operations
and Management Company, Ltd.; Global Energy Operations and
Management Company-U.S. (A Division of Gulf Oil Corporation);
Grand Bay Co.; Gulf Agricultural Chemicals Company Limited;
Gulf Asian Investments Company Limited; Gulf Asian Services
(A Division of Gulf Asian Investments Company Limited);
Gulf Benzin A/S; Gulf Chemicals International, Inc.; Gulf
Computer Sciences Incorporated; Gulf Consumer Services Company
(A Division of Gulf Oil Corporation); Gulf del Peru, S.A.;
Gulf Ecuatoriana de Petroleo, S.A.; Gulf Energy and Minerals
Company (A Division of Gulf Oil Corporation); Gulf Energy and
Minerals Company-International (a Division of Gulf Oil Corpora
tion); Gulf Energy and Minerals Company-U.S. (A Division of
Gulf Oil Corporation); Gulf Europe Company; Gulf-Gas (Norway)
A/S; Gulf-Gas (Sweden) Aktiebolag; Gulf International Company;
Gulf International Trading Company (A Division of Gulf Oil
Corporation); Gulf International Trading Company (A Division
of Gulf Oil Trading Company, Limited).
Gulf International Trading-Far East (A Division of
Gulf Asian Investments Company Limited); Gulf Italia Production
Company S.p.A.? Gulf Italiana S.p.A.; Gulf Kuwait Company;
Gulf Management Institute (A Division of Gulf Oil Corporation);
Gulf Marine and Services Company Limited; Gulf Marine Management
Company (A Division of Afran Transport Company); Gulf Merchandis
ing Company (A Division of Bulk Petroleum Corporation); Gulf
Mineral Resources Co. (A Division of Gulf Oil Corporation);
Gulf Minerals Canada Limited; Gulf Oil (Antilles) Inc.; Gulf Oil
(Belguim) S.A.; Gulf Oil Canada Limited; Gulf Oil Chemicals
Company (A Division of Gulf Oil Corporation); Gulf Oil Chemicals
Company Asia, Limited; Gulf Oil Communications Company, Inc.;
Gulf Oil Company-Asia; Gulf Oil Company-Eastern Hemisphere;
Gulf Oil Company (Hong Kong) Inc.; Gulf Oil Company-International
(A Division of Gulf Oil Corporation); Gulf Oil Company-Japan (A
Division of Gulf Oil Corporation); Gulf Oil Company-Korea (A
Division of Gulf Oil Corporation); Gulf Oil Company-Latin
America (A Division of Gulf Oil Corporation); Gulf Oil Company
(Nigeria) Limited; Gulf Oil Company of Gabon; Gulf Oil Company
(Portugal) Limitada; Gulf Oil Company-South Asia.
Gulf Oil Company-Thailand (A Division of Gulf Oil
Corporation); Gulf Oil Company-U.S. (A Division of Gulf Oil
Corporation); Gulf Oil European Company; Gulf Oil Financial
Corporation; Gulf Oil Foundation of Delaware; Gulf Oil Germany,
Inc.; Gulf Oil (Great Britain) Limited; Gulf Oil (Luxembourg)
S.A.; Gulf Oil Marine Agency N.V.; Gulf Oil Middle East Trad
ing Company (A Division of Gulf Oil Trading Company, Limited);
Gulf Oil. (Nederland) 3.V.; Gulf Oil Northern Development Com
pany (A Division of Gulf Minerals Canada Limited); Gulf Oil
Production Company; Gulf Oil Raffinaderij B.V.; Gulf Oil Real
Estate Development Company; Gulf Oil Refining A/S; Gulf Oil
Refining Limited; Gulf Oil Sales, Inc.; Gulf Oil Securities
Company, Inc.; Gulf Oil Services, Inc.; Gulf Oil (Switzerland);
Gulf Oil Terminals (Ireland) Limited; Gulf Oil Trading Company
(A Division of Transocean Gulf Oil Company); Gulf Oil Trading
(Far East) (A Division of Gulf Asian Investments Company Limited)
Gulf Oil Trading Investments Limited; Gulf Oil Zaire S.A.R.L.;
Gulf Overseas Trading, Inc.; Gulf Petroleum S.A.
Gulf Refining and Marketing Company (A Division of
Gulf Oil Corporation); Gulf Refining Company; Gulf Research &
Development Company; Gulf Research Racing Company; Gulf Reston,
Inc.; Gulf Reston Properties, Inc.; Gulf Science and Technology
Company (A Division of Gulf Oil Corporation); Gulf Supply and
Distribution Company Limited; Gulf Technology Europe B.V.;
Gulf Tire & Supply Company; Gulf Trading and Transportation
(A Division of Transocean Gulf Oil Company); Gulf Trading and
Transportation Company (A Division of Gulf Oil Corporation);
Gulf Transport Company Aktiebolag; Gulf Travel Club, Inc.;
Gulf (U.K.) Offshore Investments Limited; Hagstrom & Knape
Oljeaktiebolag; Hutchison-Hayes International, Inc.; Hydrant
Servicing Company Limited; Iberian Gulf Oil Company; Indonesia
Gulf Oil Company (A Division of Gulf Oil Corporation); In
dustrial Asphalt (A Division of Gulf Oil Corporation); Insco
Limited; Iranian Oil Participants Limited; Iranian Oil Services
(Holdings) Limited; Java Gulf Limited; Keydril Company; Keydril
Limited; Keydril U.S.A. (A Division of Gulf Oil Corporation)
Key International Drilling Company Limited; Korea
Gulf Oil Company; Korea Lubricants Company, Ltd.; Korea Oil
Corporation; Kupan Emirates Company Limited; Kupan Financial
Company (Rotterdam B.V.; Kupan International Company; Kuwait
Oil Company Limited; Kuwait Oil Company Trustees Limited;
Laurel Pipe Line Company; Lost Hills Water Company; Mainline
Pipelines Limited; Meme Grande Oil Company; Michigan Stations
(A Division of Bulk Petroleum Corporation); Michigan Stations-
Personnel Services (A Division of Bulk Petroleum Corporation);
Midcaribbean Investments Limited; Mozambique Gulf Oil Company;
National Butane Company; Nedgulf Tankers B.V.; A/S Nordisk
Flaskegas; A/S Nordisk Flaskegas Holding Co.; Nordisk Gulf-
Gas A/S; Norsk Gulf A/S; Northeast Stations & Services, Inc.;
Norwegian Gulf Oil Production Company; Okan Pipeline Company;
Okinawa Sekiyu Seisei Company, Ltd.; B. V. Olie Handelsvereeniging
(Oil Trading Association); Pacific Gulf Oil Limited; Pennsylvania
Oljeimport Aktiebolag; Petroleo Gulf do Erasil Limitada.
Petroleos Gulf de Guatemala, S.A.; Petroleos Gulf
del Ecuador C.A.; Petroleum Products Storage and Transport
Company S.A.; Petrosil Oil Company Limited; Pittsburg &
Midway Coal Mining Company, The; Productos Latinoamericanos,
S.A.; Propet Company, Limited; Refineria de Petroleos del
Norte S .A. (Petronor); SARNI, S.p.A.; Shawinigan Products
Corporation; Sociedad Anonima Espanola de Lubrificantes
(SAFL); SOLVO Finance and Investment Corporation Ltd.;
South Pacific Gulf Oil Company; Spanish Gulf Oil Company;
Spencer Quimica Mexicana, S.A. de C.V.; Sunrise International
Company, Limited; Svenska Aktiebolaget Alfred Olsen & Co.;
Svenska Gulf Oil A3; Taiwan VCM Industries Corporation;
Transocean Chemicals Company; Transocean Chemicals Company
(Hong Kong) Limited; Transocean Gulf Oil Company; Transport
Oil Company-Madison (A Division of Bulk Petroleum Corporation);
Transport Oil Company-Milwaukee (A Division of Bulk Petroleum
Corporation); United Petroleum Securities Corporation; Venezuela
Gulf Refining Company; Venture Acceptance Corporation; Venture
Out in America, Inc.; Veritas Oil Company Aktiebolag; Warren
Petroleum Company (A Division of Gulf Oil Corporation); West
Texas Gulf Pipeline Company; and Zaire Gulf Oil Company.
Patrick 0. Patterson
Attorney of record for
Plaintiffs-Appellants
STATEMENT REQUIRED BY LOCAL RULE 16.2.2
I express a belief, based on a reasoned and studied
professional judgment, that Part IV of the panel decision is
contrary to the following decisions of the Supreme Court of
the United States, and that consideration by the full Court
is necessary to secure and maintain uniformity of decisions
in this Court;
NAACP v. Button, 371 U.S. 415 (1963);
In re Primus, 436 U.S. 412 (1978).
I express a belief, based on a reasoned and studied
professional judgment, that this appeal involves one or more
questions of exceptional importance; whether the district
court misused its discretion, exceeded its authority, and
violated the First and Fifth Amendments by restricting
communications by plaintiffs and their counsel with class
members in accordance with recommendations of the Manual for
PATRICK 0. PATTERSON
Attorney of Record for
Plaintiffs-Appellants
Complex Litigation.
TABLE OF CONTENTS
Page
Issues for En Banc Consideration ..................... 1
Course of Proceedings and
Disposition of the Case ........................... 1
Statement of Facts .................................... 3
Argument
I. The majority has decided important
questions of constitutional law and
class action administration in a
manner which conflicts with decisions
of the Supreme Court and the Third
Circuit ................................... 6
II. The district court's orders restraining
communications by plaintiffs and their
counsel with class members are overbroad
abridgments of the freedoms of speech
and association ............................ 10
A. Neither the record in this case
nor the Manual for Complex Litiga
tion provides any justification for
the denial of First Amendment rights
to the plaintiffs, their counsel, and
the class members in this litigation... 10
B. The panel majority's strained
reading of the district court's
June 22 order does not cure the
constitutional defect ................. 11
III. The orders are discriminatory regulations
of expression and association which con
stitute an abuse of discretion and a
denial of equal protection and due
process ..................................... 13
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Page
IV. The orders constitute a misuse of
the district court's discretion,
they are inconsistent with the
Federal Rules of Civil Procedure,
and they exceed the power of the
court ....................................... 14
Conclusion ............................................ 15
Appendix A: Slip Opinion in Bernard v. Gulf Oil Co.,
No. 77-1502 (5th Cir., June 15, 1979).
-viii-
TABLE OF CITATIONS
CASES Page
Buckley v. Valeo, 424 U.S. 1 (1976) ................ 12
Coles v. Marsh, 560 F.2d 186 (3rd Cir.),
cert, denied sub nom. Blue Cross v.
Marsh, 434 U.S. 985 (1977) ...................... 9, 14
In re Primus, 436 U.S. 412 (1978) .................. 8, 12
Miller v. Amusement Enterprises, Inc.,
426 F . 2d 534 (5th Cir. 1970) .................... 8
NAACP v. Alabama ex rel. Patterson,
357 U.S. 449 (1958) ............................ 12
NAACP v. Button, 371 U.S. 415 (1963) ............... 7, 8, 12
Railroad Trainmen v. Virginia ex rel.
State Bar, 377 U.S. 1 (1964) .................... 8
Rodgers v. United States Steel Corp.,
508 F .2d 152 (3rd Cir.), cert, denied,
423 U.S. 832 (1975) .............................. 9, 14
Rodgers v. United States Steel Corp.,
536 F.2d 1001 (3rd Cir. 1976) ................... 9
United Mine Workers v. Illinois State
Bar Ass'n, 389 U.S. 217 (1967) 8
United Transportation Union v. State
Bar of Michigan, 401 U.S. 576 (1971) ............ 8
CONSTITUTIONAL PROVISIONS,
STATUTES, AND RULES
United States Constitution, First
Amendment ........................................ 3, 6, 7, 3,
10, 11, 12
United States Constitution, Fifth Amendment ........ 6, 13
28 U.S.C. § 1291 .................................... 2
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Page
28 U.S.C. § 1343 (4) ................................. 2
42 U.S.C. § 1981, Civil Rights Act
of 1866 .......................................... 1
42 U.S.C. § 2000e et seq., Title VII of the
Civil Rights Act of 1964, as amended ............ 1, 2
Rule 23, Fed.R.Civ.P............................ 2-3, 9, 11, 14
Rule 83, Fed. R. Civ. P ................................. 9, 14
Local Rules: N.D. Fla. Rule 17(B), (C) ;
M. D. Fla. Rule 4.04(e); S.D. Fla. Rule 1 (B);
N. D. Ga. Rule 221.2, 221.3; E.D. La. Rule
2.12(e); S.D. Tex. Rule 6; D. Md. Rule 20;.
S.D. Ohio Rule 3.94; M.D. Tenn. Rule 14(h),
(c); N.D. 111. Rule 22; W.D. Wash. Rule
23(g) ............................................ 7
OTHER AUTHORITIES
88 Harv. L. Rev. 1911 (1975) ....................... 13
Manual for Complex Litigation § 1.41,
1 Pt. 2 Moore's Federal practice
(2d ed. 1978) (Supp. 1978) ...................... 7, 11, 13
Seymour, The Use of "Proof of Claim"
Forms and Gag Orders in Employment
Discrimination Class Actions, 10 Conn.
L. Rev. 920 (1978) ............................... 7
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IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 77-1502
WESLEY P. BERNARD, et al.,
Plaintiffs-Appellants,
vs.
GULF OIL COMPANY, et al.,
Defendants-Appellees.
On Appeal From The United States District Court
For The Eastern District of Texas
PETITION FOR REHEARING AND
SUGGESTION FOR REHEARING EN BANC
ISSUES FOR EN BANC CONSIDERATION
1. Did the district court's orders restraining
communications with class members violate the First Amend
ment rights of plaintiffs, plaintiffs' counsel, and the
members of the class to engage in collective activity to
obtain a judicial remedy for racial discrimination?
2. Were the orders restraining communications
so discriminatory in their regulation of expression and
association that they constituted an abuse of discretion or
a denial of due process and equal protection of the laws in
violation of the Fifth Amendment?
3. Did the district court misuse its discretion
or exceed its authority under Rules 23 and 83, Fed. R. Civ.
p., by entering the orders restraining communications?
COURSE OF PROCEEDINGS AND DISPOSITION
____________ OF THE CASE______________
Plaintiffs-appellants in this case are black present
or retired employees of defendant Gulf Oil Company who charge
that they and all other similarly situated black persons are
the victims of systematic past, present, and continuing racial
discrimination in employment by Gulf and the defendant unions,
in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e et sea., and the Civil Rights Act
of 1866, 42 U.S.C. § 1981. jurisdiction in the district court
was predicated on 28 U.S.C. § 1343(4) and 42 U.S.C.§ 2000e-5(f).
The district court entered orders restraining communications by
1/
the named parties and their counsel with class members and
granted summary judgment for defendants.
Plaintiffs appealed, asserting jurisdiction in this
Court based upon 28 U.S.C. § 1291. The panel, composed of
’ 2/
Judges Thornberry, Godbold, and Hill, held unanimously that
plaintiffs' Title VII claims were timely filed, that their
§ 1981 claims were not barred by the applicable Texas statute
of limitations, and that none of their claims was barred by
the doctrine of laches. Accordingly, the panel reversed the
district court’s judgment and remanded the case for further
proceedings.
But Judges Thornberry and Hill, in Part IV of their
opinion, upheld the validity of the district court's restric
tions on communications with class members. Judge Godbold
dissented from this part of the majority opinion. He concluded
that the restraints imposed in this case contravened Rule 23,
1/ The district court entered three orders prohibiting or re
stricting such communications: on May 28 (A. 30-31), June 22
(A. 56-61), and August 10, 1976 (A. 157). Contrary to the
statements in the majority opinion (slip op. at 5515, 5519),
plaintiffs have challenged all of these orders on appeal. See
Brief for Appellants at 2, 14, 39-40.
2/ Judge Hill specially concurred and filed a separate opinion.
Fed.R.Civ.P., and violated the First Amendment rights of the
named plaintiffs, their counsel, and all actual or potential
class members.
Plaintiffs seek rehearing and suggest rehearing
en banc of the questions addressed in Part IV of the majority
opinion and in Judge Godbold's dissenting opinion.
STATEMENT OF FACTS
The facts pertinent to plaintiffs' petition for re
hearing and suggestion of rehearing en banc are not disputed
by either the majority or the defendants. Those facts are
fully stated in Part I of Judge Godbold's dissenting opinion
(see Appendix A hereto), and they are summarized below.
On April 14, 1976, Gulf entered into a conciliation
agreement with the EEOC and the Office for Equal Opportunity
of the Department of the Interior concerning alleged racial
discrimination by Gulf against black employees at its refinery
at port Arthur, Texas (A. 15-28). The agreement was not subject
to judicial review or approval, and neither the union defendants
in this case nor the named plaintiffs or any members of their
class were parties to the agreement (A. 26-28).
Approximately two weeks later, Gulf began tendering
"back pay awards" to persons identified as "affected class
members" under the agreement (A. 18-20), and soliciting releases
-3-
and unethical conduct (R. 17-18), District Judge Stager entered
an order prohibiting all communications by the parties or their
counsel with any actual or potential class member who was not
a formal party to the action, pending Chief Judge Fisher's
return (A. 30-31). No evidence was presented to Judge Steger,
and he made no findings.
On June 8, Gulf filed an unverified motion to modify
the order of May 28 and made further unsworn allegations of
misconduct (R. 24), which counsel for plaintiffs denied under
oath (A. 51). On June 22, without requiring Gulf to prove
any of its charges of improper and unethical conduct, and
without making any findings of fact, judge Fisher modified
the order to prohibit all communications with actual or poten
tial class members concerning the case except those made with
the court's prior approval of both the communication and the
proposed addressees. The modified order also permitted cer
tain communications initiated by a client or prospective
client; it allowed certain communications occurring in the regular
course of business; it required that any constitutionally
protected communication be filed with the court within five
days after its occurrence; and it permitted Gulf to renew
its tenders of "back pay awards" under its conciliation agree
ment and to solicit releases from the class members through
the clerk of the district court (A. 56-61). The modified
-5-
order further stated that class members had 45 days from the date
of the clerk's notice to accept the offer and that all who delivered
receipts and releases to Gulf within 35 days would be deemed to
have accepted (A. 58).
On July 6, plaintiffs moved for permission to distribute
a notice to the class members regarding the conciliation agreement
1/
and releases, and for permission to discuss these subjects with
the class members within the 45 day period allowed for their con
sideration of Gulf's offer (A. 62-65). This period expired on or
about August 8. The district court did not act on plaintiffs'
motion until August 10, when it entered a one-sentence order
denying the motion without explanation (A. 157).
ARGUMENT
I. THE MAJORITY HAS DECIDED IMPORTANT QUESTIONS OF CONSTITUTIONAL
LAW AND CLASS ACTION ADMINISTRATION IN A MANNER WHICH CONFLICTS
WITH DECISIONS OF THE SUPREME COURT AND THE THIRD CIRCUIT.
This petition presents the question whether the district
court misused its discretion, exceeded its authority, and violated
the First and Fifth Amendments by restricting communications by
plaintiffs and their counsel with class members. As judge Godbold
stated,
The issue is important. The critical part of
the order in question follows the form suggested in
the Manual for Complex Litigation .... This case
presents in this circuit for the first time the va
lidity of such an order. Another circuit has taken
a position contrary to the majority's decision. Slip
op. at 5520 (footnotes omitted).
3/ The proposed notice is reprinted in Judge Godbold's opinion
at 5524 (Appendix A hereto).
- 6-
The entry of the orders restraining communications in
this case was not an isolated or unusual occurrence. Section
4/
1.41 of the Manual for Complex Litigation recommends that such
5/ 6/
restraints be imposed by local rule or by a pretrial order in
every class action brought in federal court. At least 11 district
courts, six of which are in this circuit, have adopted such local
V 8/
rules, and many district judges have entered similar orders.
These restraints deprive plaintiffs, their attorneys,
and class members of their fundamental right to engage in col
lective activity to obtain meaningful access to the courts. The
district court's orders in this case placedunjustified prior re
straints on the exercise of First Amendment rights. The orders
also violated the First Amendment by unnecessarily restricting
"constitutionally privileged means of expression to secure con
stitutionally guaranteed civil rights." NAACP v. Button, 371
U.S. 415, 442-43 (1963).
4/ 1 Pt. 2 Moore's Federal Practice at 31-37 (2d ed. 1978), 3-4
(Supp. 1978).
5/ Id. at 225-26.
6/ Id. at 226-30.
7/ N.D. Fla. Local Rule 17(B), (C); M.D. Fla. Local Rule 4.04(e)
S.D. Fla. Local Rule 19(B); N.D. Ga. Local Rule 221.2, 221.3; E.D.
La. Local Rule 2.12(e); S.D. Tex. Local Rule 6; D. Md. Local Rule
20; S.D. Ohio Local Rule 3.94; M.D. Tenn. Local Rule 14(b), (c);
N.D. 111. Local Rule 22; W.D. Wash. Local Rule 23(g). The rule
adopted in the Southern District of Texas may not suffer from the
same constitutional infirmities as the rule recommended by the
Manual. See slip op. at 5534 (Godbold, J., dissenting in part).
8/ See Seymour, The Use of "Proof of Claim" Forms and Gag Orders
in Employment Discrimination Class Actions, 10 Conn. L. Rev. 920,
937-43 (1978) .
-7-
The plaintiffs in this case are represented by lawyers
affiliated with the NAACP Legal Defense and Educational Fund,
Inc. — the same organization whose activities in promoting and
conducting litigation against racial discrimination were held to
be constitutionally protected forms of expression and association
i/
in Button. In the most recent of a long line of cases reaffirming
10/
and expanding the principles of Button, the Supreme Court held once
again that the First Amendment protects the conduct of attorneys
associated with such organizations as the Legal Defense Fund and
the ACLU in advising people of their rights and engaging in liti
gation as a vehicle for political expression and association. In
re Primus, 436 U.S. 412, 426-32 (1978). These rights may not be
limited except upon a showing that there is "1 a subordinating
interest which is compelling' ... and that the means employed in
furtherance of that interest are 'closely drawn to avoid unneces
sary abridgment of associational freedoms.'" Id. at 432 (citations
omitted). The majority's decision in the case at bar mentions
9/ "The counsel silenced without factual showing include those
from the Legal Defense Fund, recognized by the Supreme Court as
having 'a corporate reputation for expertness in presenting and
arguing the difficult questions of law that frequently arise in
civil rights litigation,' NAACP v. Button, 371 U.S. 415 at 422
..., and engaged in 'a different matter from the oppressive,
malicious or avaricious use of the legal process for purely private
gain.' Id. at 443 ...." Slip op. at 5529(Godbold, j., dissenting
in part). See also, Miller v. Amusement Enterprises, Inc., 426
F .2d 534, 539 n.4 (5th Cir. 1970).
10/ In re Primus, 436 U.S. 412 (1978); United Transportation Union
v. State Bar of Michigan, 401 U.S. 576 (1971); United Mine workers
v. Illinois State Bar Ass'n, 389 U.S. 217 (1967); Railroad Train
men v. Virginia ex ral State Bar, 377 U.S. 1 (1964).
- 8-
none of these cases; it ignores the requirements of the Consti
tution.
The majority's decision also conflicts with decisions
of the Third Circuit. The district court's orders in this case
deprived the class members of the advice and assistance of Legal
Defense Fund counsel at a time when the defendant was making
settlement offers to the class members and soliciting waivers of
their civil rights "under the official imprimatur of the court. "
Slip op. at 5529 (Godbold, J., dissenting in part). The Third
Circuit held in similar circumstances that an order forbidding
LDF counsel to communicate with class members concerning certain
aspects of a settlement offer was an unconstitutional prior re
straint on freedom of speech. Rodgers v. United States Steel
Coro,t 536 F .2d 1001 (3rd Cir. 1976). In another case, the Third
Circuit reversed an order which was virtually identical to the
June 22 order in the instant case (slip op. at 5515-16 n.9); the
court held that such orders conflicted with the purposes of Rule
23 and therefore exceeded the power of the district court under
Rules 23(d) and 83, Fed.R.Civ.P. Coles v. Marsh, 560 F.2d 186
(3rd Cir.), cert, denied sub nom. Blue Cross v. Marsh, 434 U.S.
985 (1977). Cf. Rodgers v. United States Steel Corp., 508 F.2d
152 (3rd Cir.), cert, denied, 423 U.S. 832 (1975).
Plaintiffs respectfully submit that the panel majority's
decision does not give adequate consideration to the constitutional
values at stake in this case or to the conflicting decisions of
-9-
the Supreme Court and the Third Circuit, we request rehearing
and suggest that rehearing en banc is appropriate in view of the
importance of the issues and the impact of this Court's decision
on the administration of class actions.
II. THE DISTRICT COURT'S ORDERS RESTRAINING COMMUNICATIONS
BY PLAINTIFFS AND THEIR COUNSEL WITH CLASS MEMBERS ARE
OVERBROAD ABRIDGMENTS OF THE FREEDOMS OF SPEECH AND
ASSOCIATION.
Part III of Judge Godbold's dissenting opinion demon
strates that the orders restraining communications violated the
First Amendment rights of the named plaintiffs, their counsel,
and all actual and potential members of the class. Plaintiffs
wish to emphasize only two additional points.
A. Neither the Record in this Case nor the Manual
for Complex Litigation Provides anv Justifica
tion for the Denial of First Amendment Rights
to the Plaintiffs, their Counsel, and the Class
Members in this Litigation.
The record in this case contains absolutely no evidence,
and the district court made no findings, that plaintiffs or their
counsel either had engaged or were ever likely to engage in any
improper or unethical conduct, or that they posed any threat
whatever to the administration of justice. See slip op. at 5526
and n.9 (Godbold, J., dissenting in part). The majority concedes
that its decision upholding the district court's orders is not
based upon any such showing, slip op. at 5518 n.14; rather, it
finds the justification for these restrictions in the four "potential
- 10-
abuses" of the class action device set forth in the Manual for
Complex Litigation, 1 Pt. 2 Moore's Federal Practice at 31-32.
11/
Only one of these potential abuses is arguably relevant here:
communications "which may misrepresent the status, purposes and
effects of the action and of court orders therein and which may
confuse ... class members and create impressions which may re
flect adversely on the court or the administration of justice."
1 pt. 2 Moore's Federal practice at 31-32. However, the cases
cited to document this alleged abuse do not disclose a single
instance of proven misconduct by class representatives or their
counsel which could have been prevented by the suggested local
12/
rule or by the orders entered by the court below. The unsub
stantiated fear of possible misconduct in some cases is not suf
ficient to justify the denial of First Amendment rights in this
case.
B . The Panel Majority's Strained Reading of the
District Court's June 22 Order Does Not Cure
the Constitutional Defect.
The majority attempts to avoid the First Amendment
issue by construing the June 22 order as follows:
11/ The other alleged abuses — solicitation of legal representa
tion, solicitation of fees and expenses, and solicitation of opt-
out requests from class members in actions under Rule 23 (b) (3) ,
Fed.R.Civ. P. — have no application to this case. See slip op.
at 5532-33 n.18 (Godbold, J., dissenting); cf. id.at 5518 n.12
(Thornberry and Hill, JJ.).
12/ These cases are cited in the Manual at nn. 34-42.
- 11-
[E]ven if the prohibitions of the order are
vague or overbroad, the parties can avoid them
if they assert a good faith belief that a par
ticular communication is constitutionally pro
tected. Slip op. at 5519.
13/
The majority's construction of the order is no substi
tute for an order which is "closely drawn to avoid unnecessary
abridgment of associational freedoms." In re Primus, supra, 436
U.S. at 432, quoting Buckley v. Valeo, 424 U.S. 1, 25 (1976).
Overbroad restrictions on First Amendment freedoms cannot be saved
by resolving ambiguities in favor of a constitutionally acceptable
reading. NAACP v. Button, supra, 371 U.S. at 432.
Moreover, the majority's construction does nothing to
change the requirement that parties and lawyers exercising their
constitutional rights must file a copy of every written communica
tion and a summary of every oral communication with the court within
five days, nor does it protect the confidentiality of communications
between class members and counsel for the class. "[C]ompelled dis
closure of affiliation with groups engaged in advocacy may consti
tute [an] effective ... restraint on freedom of association ...."
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958).
13/ The text of the provision on which the majority relies (52,
A. 57) states as follows:
If any party or counsel for a party asserts a
constitutional right to communicate with any member
of the class without prior restraint and does so
communicate pursuant to that asserted right, he shall
within five days after such communication file with
the Court a copy of such communication, if in writing,
or an accurate and substantially complete summary of
the communication if oral.
- 12-
The majority's reading of the June 22 order also subjects
plaintiffs and their counsel to the continuing risk that they will
be held in violation of the order if they cannot establish their
good faith to the district court's satisfaction. Thus, even as
construed by the majority here, the proviso for constitutionally
privileged communications "does not eliminate — indeed it high
lights — the overbreadth and resultant chilling effect of the
fManual's] proposed rule." 88 Harv. L. Rev. 1911, 1922 n.74 (1975)
III. THE ORDERS ARE DISCRIMINATORY REGULATIONS OF EXPRESSION
AND ASSOCIATION WHICH CONSTITUTE AN ABUSE OF DISCRETION
AND A DENIAL OF EQUAL PROTECTION AND DUE PROCESS.
judge Godbold concludes that the district court's limit
ation on communications "was intended to further employees' accept
ing conciliation awards in preference to participating in the suit,
slip op. at 5528, and that it "inappropriately involved the court
in the extra-judicial conciliation effort," id. at 5529. Plain
tiffs submit that these restrictions were so unfair and one-sided
that they also violated the Fifth Amendment.
The effect of the June order was to make the court into
an instrument cf the Gulf Oil Corporation for the purpose of offer
ing back pay settlements to and soliciting releases from class
members (55 3-9, A. 57-61). Plaintiffs and their counsel, on the
other hand, requested and were specifically denied permission to
discuss these matters with the members of the class (A. 62-65, 157)
in addition, the order allows certain "communications occurring in
the regular course of business ..." (52, A. 57). Thrs exception
-13-
clearly favors the employer, who has far greater day-to-day access
to employees; it is open to widespread and unpoliceable abuse in
the context of the employer-employee relationship. Moreover, the
order effectively shuts off communications by plaintiffs and their
counsel with class members who have knowledge of the facts and
whose experience and assistance are necessary in framing litiga
tion and settlement strategy. There is no corresponding restraint
on defendants' counsel, who are free to consult with management and
supervisory employees to develop the facts, interview witnesses,
prepare for trial, and discuss strategy without any restrictions
whatever.
IV. THE ORDERS CONSTITUTE A MISUSE OF THE DISTRICT COURT'S
DISCRETION, THEY ARE INCONSISTENT WITH THE FEDERAL RULES
OF CIVIL PROCEDURE, AND THEY EXCEED THE POWER OF THE
COURT.
Part II of Judge Godbold's dissenting opinion demon
strates that the district court misused its discretion in enter
ing the orders restricting communications by plaintiffs and their
counsel with class members. Plaintiffs submit that the orders
also were inconsistent with the purposes of Rule 23 and therefore
were beyond the district court's power under either Rule 23(d) or
Rule 83, Fed.R.Civ. P. Coles v. Marsh, 560 F.2d 186 (3rd Cir.),
cert, denied sub nom. Blue Cross v. Marsh, 434 U.S. 985 (1977);
Rodgers v. United States Steel Coro., 508 F .2d 152 (3rd Cir.),
cert, denied, 423 U.S. 832 (1975).
-14-
CONCLUSION
For the reasons stated above, plaintiffs-appellants
request rehearing and suggest rehearing en banc of the issues
decided in Part IV of the panel majority’s opinion. We urge
the Court to decide these issues in accordance with Judge
Godbold's dissenting opinion and to vacate the district court's
orders restricting communications by plaintiffs and their counsel
with the members of the class.
Respectfully submitted,
STELLA M. MORRISON
1015 East Gulfway Drive
port Arthur, Texas 77640
ULYSSES GENE THIBODEAUX
425 Alamo Street
Lake Charles, Louisiana 70601
CHARLES E. COTTON
Suite 500 - 348 Baronne Street
New Orleans, Louisiana 70601
BARRY L. GOLDSTEIN
806 15th Street, N.W.
Washington, D.C. 20006
JACK GREENBERG
PATRICK 0. PATTERSON
10 Columbus Circle
New York, New York 10019
Attorneys for plaintiffs-Appellants
-15-
APPENDIX A
Slip Opinion in Bernard v. Gulf
Oil Co., No. 77-1502 (5th Cir.,
June 15, 1979)
BERNARD v. GULF OIL CO. 5505
Wesley P. BERNARD et al..
Plain tiffs-A ppellan ts,
v.
GULF O IL COMPANY et al..
D efendants-A ppellees.
No. 77-1502.
United S tates Court of Appeals,
F ifth Circuit.
June 15. 1979.
Em ploym ent discrim ination suit was
brought against em ployer and unions
based on allegation th a t the employer
and the unions had discrim inated against
plaintiffs and sim ilarly situated black
employees in violation of T itle VII and
of the Civil Rights Act of 1866. The
United S tates District Court for the
E astern D istrict o f Texas, Joe J. Fisher,
Chief Judge, entered an order prohibit
ing the parties from com m unicating with
class mumliers w itnout court approval
and la ter gran ted defendants ' motions
for sum m ary judgm ent. P lain tiffs ap
pealed, and the Court of Apjieals, Thom -
berrv, Circuit Judge, held tha t: (1) the
90-day period within which p laintiffs
w ere required to file su it did not begin
to run until plaintiffs received notice
from the Equal Em ploym ent Opportuni
ty Commission both of the failure of con
ciliation and of the EEOC’s decision not
to sue: (2) defendants did not m eet their
sum m ary judgm ent burden to establish
the absence of any m aterial issue of
fact: (3) under Ixith Texas and federal
law, the date on which the s ta tu te of
lim itations began to run on p la in tiffs’
claim under the Civil Rights Act of 1866
was the last date on which defendants
unlawfully harmed plaintiffs: ( i) plain
tiffs could recover dam ages for any
wrongful acts com m itted during the lim
itations |>eriod; (5) the s ta tu te of lim ita
tions did not totally bar the claim under
the Civil Rights A«-i >.f lWfi; (f,) ;my
recovery under the Civil Rights Act of
1866 was limited to those violations oc
curring within a tw o-year jieriod imme
diately preceding the filing of the com
plaint or thereafte r; (7) p la in tiffs’ fail
ure to file their Title VII claim until
completion of the EEOC process was not
inexcusable delay and did not support
the application of laches to bar the
claim; (8) the order restric ting the par
ties' communication with members of the
putative class was a permissible exercise
ol the district court's discretionary [low
er to control a class action, and (9) the
order did not violate p la in tiffs ' constitu
tional rights.
Reversed and remanded.
God hold. Circuit Judge, concurred in
p art and dissented in part and filed opin
ion.
Jam es C. Hill, Circuit Judge, S|iecial-
ly concurred and filed opinion.
1. Civil R igh ts <3=40
W here firs t le tte r which the Equal
Em ploym ent O pportunity Commission
sen t to em ploym ent discrimination com
plainants sta ted th a t conciliation efforts
had failed and tha t com plainants could
request a notice of righ t to sue le tte r but
did not indicate that the EEOC had de
cided not to sue and where the conclud
ing paragraph of the first le tte r in effect
assured com plainants th a t the 90-day [ie-
riod for filing suit would not commence
until com plainants received a second le t
ter, the [leriod within which complain
ants wore required to file su it did not
begin to run until com plainants received
notice of both the failure of conciliation
and of the EEOC’s decision not to sue.
Syllabi anil Kv> N uihIh t ‘ la-MKifiratioii
r n p Y K k iH T c by W KST m tl .I S I I I N < > 1*0
T h r Synopsr*, Syllabi anil Kvv N nm lw r < la.'iMi fi
xation m n n li in i r n«i purl of tho opinion o f tin* r»>iirt
5506 BERNARD v. G l T F OIL CO.
Civil Rights Act of 1964, § 706(f) as
am ended 42 U.S.C.A. § 2000e-5( f)( 1).
2. F edera l Civil P rocedure c=>184
In em ployment discrim ination action
based on claim tha t em ployer and unions
had engaged in race discrim ination in vi
olation of T itle VII, claims of class re|>-
resentatives were pro|>erly liefore the
court and. therefore, the d istric t court
com m itted erro r in dism issing class
claims. Civil Rights Act of 1964, § 701
et seq. as amended 42 U.S.C.A. § 2000e
et seq.; 42 U.S.C.A. § 1981.
3. F edera l Civil P rocedure 0=2544
U nder sum m ary judgm ent practice,
the moving party has the initial burden
to establish th a t there is no genuine is
sue of m aterial fact; unless and until
the moving party initially provides factu
al support for the sum m ary judgm ent
motion, the opposing party has no duty
to respond to the motion or to present
opposing evidence. Fed.Rules Civ.Proc.
rule 56, 2S U.S.C.A.
4. F ederal Civil P rocedure o=253!)
Where, though em ployer and unions
presented many affidavits in support of
the ir motion for sum m ary judgm en t in
em ploym ent discrimination action, none
of the affidavits contained a denial of
p la in tiffs’ allegations concerning discrim
ination against blacks, d istric t court’s
ruling th a t there were no instances of
continuing discrimination was unsup
ported by the sum m ary judgm en t recon 1.
Fed.Rules Civ.Proc. rule 56, 28 U.S.C.A.;
42 U.S.C.A. § 1981.
5. Federal Civil P rocedure c=254 l
In em ployment discrim ination ac
tion, employer and union defendants did
not m eet their sum m ary judgm en t bur
den to establish the absence of any ma
terial issue of fact where, though plain
tiffs asserted th a t defendants had discri
m inated and continued to discrim inate
against blacks in em ployment, defend
an ts presented no affidavits denying
th a t they' were discrim inating against
blacks. 42 U.S.C.A. 6 1981; Fed.Rules
Civ.Proc. rule 56, 28 U.S.C.A.
6. Civil R ights <=» 13.10
Under !x>th Texas and federal law,
the date on which s ta tu te of lim itations
l>egan to run on em ploym ent discrim ina
tion claim under the Civil Rights Act of
1866 was the last date on which defend
an ts unlaw fully harmed com plainants.
42 U.S.C.A. § 1981.
7. Civil R ights c = 13.17
Em ploym ent discrim ination com
plainants could recover dam ages for any
wrongful acts com mitted by em ployer
and union defendants within the applica
ble lim itations period. 42 U.S.C.A.
§ 1981.
8. L im itation of Actions o = 5 5 (l)
Texas rule, j>ecuiinr to trespass
cases, th a t the s ta tu te of lim itations lie-
gins to run on the date when the tres
passers f irs t entered the land, even if
they continue to use the land a f te r th a t
date, is inapplicable when defendants
continue to violate p la in tiffs’ rights with
new and distinct actions.
9. Civil R igh ts «=» 13.10
U nder Texas law, em ploym ent dis
crim ination com plainants’ cause of action
for alleged violations of the Civil Rights
A et of 1866 and any recovery they might
receive was limited to those violations
which occurred within the two-year peri
od im m ediately preceding the filing of
the com plaint or thereafte r. 42 U.S.C.A.
§ 1981.
10. Equity «=72(1)
For application of laches to lie prop
er. court must find Ixith tha t p la in tiff
delayed inexcusably in bringing suit and
BERNARD < GULF OIL CO. 5507
th a t this delay unduly prejudiced defend
ants.
11. Civil R ights <3=>3]
The private remedy allowed by the
Civil Rights Act of 1964 is only an a lte r
native method for a p la in tiff to ohtain
relief from em ploym ent discrimination;
therefore, a com plainant cannot lie f i
nalized for choosing to forego this a lte r
native and to elect instead the legisla
tively and judicially favored method of
relying on adm inistrative processes of
the Equal Em ploym ent O pportunity
Commission. Civil Rights Act of 1964,
§ 706(e) as am ended 12 L'.S C A
§ 2000e-5( f)( 1).
12. Civil R ights o = (0
Failure of race discrim ination com
plainants to file the ir T itle VII claim
until completion of Equal Employment
O pportunity Commission adm inistrative
process was not inexcusable delay and
could not supfiort application of laches to
bar the claim. Civil Rights Act of 1964,
§ 701 et seq. as am ended 42 U.S.C.A.
§ 2000e e t seq.
13. Civil R igh ts c = 13.10
The Texas s ta tu te of lim itations pre
vented race discianiination com plainants
from asserting claims under the Civil
R ights Act of 1866 which arose more
than two years Ixjfore the com plaint was
filed; therefore, any delay which oc
curred before the tw o-year jx*riod was
irrelevant to com plainants’ claims under
the Act. 42 U.S.C.A. § 1981; Vernon’s
Ann.Tex.Civ.St. art. 5526.
14. Civil R ights c = 13.10
Allegations of corporate employer
th a t it had made several personnel
changes since the date when race dis
crim ination com plainants alleged tha t vi
olations began and th a t a numlicr oC
m anagem ent personnel had retired and
two [lersonnel m anagers had died were
insufficient grounds on which to b;ise a
finding of prejudice arising from com
plainants’ assorted undue delay in filing
em ploym ent discrim ination suit lu I :„s
C.A. § 1981.
15. Civil R ights 13.lt)
Unless the employees are unavaila
ble, the fact th a t fiersonnel changes have
occurred or th a t employees have retired
since alleged em ployment discrimination
violations occurred is irrelevant to d e te r
mining w hether laches can lie invoked to
liar claims. 42 U.S.C.A. § 1981.
16. Civil R ights c= 40
W here employer did not destroy doc
um ents relevant to em ploym ent discrimi
nation claims until two years a f te r the
em ployer learned of the charges and
where the destruction of the records,
which related to personnel decisions
made during a certain period, provided
the basis for the em ployer's assertion
th a t it was unduly prejudiced in its de
fense by com plainants’ delay in filing
suit because two form er [lersonnel m ana
gers having irreplaceable knowledge of
the facts had died, em ployer’s assertions
did not w arran t invoking the defense of
laches to liar em ployment discrim ination
claim.
17. Equity <3=73
A party cannot assert the defense of
laches merely liecau.se it failed to pre
serve evidence despite knowledge of a
[lending claim.
18. Federal Civil P rocedure 3=184
Where circum stances were such th a t
district judge could easily have concluded
th a t his du ty to control civil rights class
action outweighed any in terest p la in tiffs’
atto rney m ight have in com m unicating
with memtiers of the putative class w ith
out prior approval of the court, order
restric ting the parties’ communication
5503 BERNARD v. ' ULF OIL CO.
w ith memhers of the pu ta tive class was
a permissible exercise of the d istrict
court’s discretionary power to control a
class action. 42 U.S.C.A. § 1981: Fed.
Rules Civ.Proc. rule 23. 28 U.S.C.A.
19. Federal Civil P rocedure 0=161, 164.
1699
The class action rule imjxisos on tin-
trial judge the duty to assure tha t a
class action is an appropriate way to re
solve the controversy, th a t represen ta
tive parties will fairly and adequately
protect the interests of the class, th a t
the pleading and trial of the case are
conducted fairly and efficiently and that
any settlem ent or compromise is not un
favorable to the class. Fed.Rid- s Civ.
Proc. rules 23, 23(d), 28 U.S.C.A.
20. Federal Civil P rocedure c = |( j l
Because any communication between
parties and class members might mislead
class members by appearing to reflect
the opinion of the court ra th e r than th a l
of the party making the communication,
trial court should have the power to ex
am ine such communications in order to
assure th a t class members will not be
misled. Fed. Rules Civ.Proc. rules 23,
23(d), 28 U.S.C.A.
21. Federal Civil P rocedure 0=1271
In enforcing order restric ting com
munication between parties and putative
class members, district court should
refuse to allow only those a ttem pts a t
discovery th a t would clearly have an ad
verse effect on the fairness of efficiency
of the litigation. Fed.Rules Civ.Proc.
rules 23, 23(d), 23 U.S.C.A.
22. Federal Civil P rocedure c = 161
Though the class action rule implic
itly provides plaintiffs w ith the right to
encourage common participation in liti
gation of class claim, the rule’s explicit
g ra n t of authority to the trial court to
control the conduct and se ttlem en t of
the action outweighs p la in tiffs’ in terest
in unrestrained communications with pu
tative c 1 ass memlx'rs. Fed.Rules Civ.
Proc. rules 23, 23(d), 28 U.S.C.A.
23. F ederal Civil P rocedure 0=161
A lthough there nun i-- n il.:, ,
oils of achieving sim ilar results, the class
action rule does not prohibit a trial
court’s discretionary use of an order re
quiring prior approval of parties’ com
munications with class members. Fed.
Rules Civ.Proc. rules 23, 23(d), 2S U.S.
C.A.
21. Federal Civil P rocedure c = lH l
In civil rights class action, district
court had power to restric t communica
tions between parties and pu ta tive class
memtiers without regard to any allega
tions of unothiral conduct; requiring the
district court to find s|>eeific evidence of
dangers of abuse and irreparable harm
in a particu lar case before acting would
severely ham p ir the court’s ability to
control the case. Fed.Rules Civ.Proc.
rules 23, 23(d). 2S U.S.C.A.
25. C onstitu tional Law 0=90.1(3)
Order, entered by d istric t court in
civil rights class action, which restricted
communications lietwoeii parties and pu
tative class meml>ers was not an uncon
stitu tional prior restra in t on p la in tiffs’
communication with class. Fed.Rules
Civ.Proc. rules 23, 23(d), 28 U.S.C.A.;
LLS.C.A.Const. Amend. 1.
26. F ederal C ourts c=H17
Even though it is [Hirmissible for the
d istrict court to prohibit unapproved
communications l>etween parties and pu
ta tive class memixirs, the trial judge 's
separate decisions approving or disap
proving particular communications are
normally a proper subject for appellate
review. Fed.Rules Civ.Proc. rules 23,
23(d), 28 U.S.C.A.
27. C onstitu tional Ijlw 0=90.1(3)
Order, entered in civil rights class
action, which prohibited parties from
BERNARD v. GULF OIL CO. 5509
communicating- with pu ta tive class mem
bers w ithout prior approval of the court
adequately safeguarded the F irst
A m endm ent rights of the parties and
counsel where, even if prohibitions of the
order were vague or overbroad, the par
ties could avoid them if they assorted a
good faith belief th a t a particu lar com
munication was constitutionally protect
ed. U.S.C.A.Const. Amend. I.
2S. C onstitu tional Law c=>21!)(1)
W here the d istrict cou rt’s o rder pro
hibiting communications between parties
and pu ta tive class .members w ithout pri
or approval of the court prohibited de-
icndan ts as well as p lain tiffs from con
tacting class members regard ing back
pay settlem ent and where the provision
allow ing communication w ith class mem
bers in the regular course of business
applied equally to all parties and counsel,
not merely to defendants, o rder did not
violate plainLiffs’ right to equal protec
tion by allowing defendants to offer
back pay se ttlem en t to class members
and to contact class memtiers in the ordi
nary course of business w ithout allowing
sim ilar rights to plaintiffs. U.S.C.A.
Const. Amends. 5, 14.
Appeal from the United S tates Dis
tr ic t Court for the Eastern D istrict of
Texas.
1. B ernard also filed charges against the in ter
national union in 1976, but the EEOC dis
m issed th is charge as untim ely. A pparently,
th is w as the only charge any of the plaintiffs
filed against the in ternational union. Although
these facts may have som e relevance to the
m erits of the action or scope of relief against
th e international union, the parties did not dis
cuss that possibility before th is court. There*
fore, although the d istrict court mav decide
d ifferently after further exam ination on re
m and, on th is appeal we wiil d iscuss the issues
Before THORNBERRY, GODBOLD
and HILL, Circuit Judges.
THORNBERIUi. f'in-mi Judge:
PIaintiffs-ap|>ellanL.s in tills case are
present o r retired employees of defend
an t Gulf and claim th a t Gulf anil the
defendant unions have discrim inated
against p laintiffs and sim ilarly situated
black employees in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000c el seq„ and Ihe Civil Rights Act
of 1S66, 42 U.S.C. § 19S1. The d istrict
court entered an order prohibiting the
parties from com municating with class
memliers and la ter g ran ted defendants'
motions for sum m ary judgm ent.
P laintiffs Bernard, Brown, and John
son filed charges of discrimination with
the EEOC in 1967 against Gulf and the
local union.1 The EEOC served copies of
the charge on defendants in A ugust,
1967, and issued a finding of reasonable
cause in August, 1968. The EEOC ac
tively pursuer! conciliation effo rts with
defendants until F ebruary, 1975, a t
which tim e it sent plaintiffs a notice
s ta tin g th a t defendants did not wish to
en tertain conciliation discussions and ad
vising plaintiffs tha t they could request
a “ Notice of Right to Sue" le tte r a t any
time." The EEOC continued conciliation
efforts on the basis of a Commissioner's
raised as if they were equally applicable to ail
defendants.
2. These first letters stated:
On February 19. I97f>, the Equal Em ploy
m ent O pportunity Com m ission 's Houston
D istrict Office received notice from Gulf Oil
C om pany— U.S. and Oil. Chemical and
Atomic W orkers. In ternational Union Local
4-23. the R espondents in the above cap
tioned m atter, that they do not wish to en
terta in conciliation d iscussions to resolve
those issues set out under the Com m ission s
5510
i
BERNARD v. ULF OIL CO.
charge filed in Septem ixjr 1967, which
raised the same issues charged by plain
tiffs. These efforts resulted in a concil
iation agreem ent between the EEOC and
Gulf in April, 1976. P lain tiffs filed this
su it in May, 1976, and re<|uested the
Right-to-Sue letters from the EEOC.
The EEOC issued the le tte rs to Bernard
and Brown in June,3 and plaintiffs
am ended their com plaint to reflect this
fact in Ju ly , 1976.
Soon a f te r they filed the com plaint,
p la in tiffs’ attorneys appeared a t a m eet
ing of Gulf employees, during which
they discussed this case. As a result of
this meeting, Gulf requested the court to
en te r an order restric ting the parties’ or
counsels' communication with class mem
bers. Gulf accompanied this request
with an unsworn assertion th a t plain
tif fs ’ attorneys had told the employees aL
the m eeting it would lie against their
in te rest to accept the back pay award
offered pursuant to the conciliation
agreem ent. P lain tiffs ' a tto rneys ada
m antly denied th a t they had urged the
employees to reject the conciliation
agreem ent. The court gran ted Gulf's
motion w ithout m aking any findings.4
D efendants then moved to dismiss the
complaint. In Novemlier, 1976, the court
ordered th a t the motion lie treated as a
motion for sum m ary judgm ent, and
g ran ted sum m ary judgm ent for defend
an ts in January , 1977. i ’lamufl.-. i.,-.c
four issues on this appeal.
I.
111 The district judge dismissed
p la in tiffs’ Title VII claim liccause plain
tiffs failed to file su it within 90 days of
receiving the first le tter, which sta ted
tiia t conciliation efforts had failed and
th a t plaintiffs could request a Notice-of-
Right-to-Sue letter. The judge hold
“th a t tile 90 day period for filing suit
liegins when the notice of failure of con
ciliation is sen t by the EEOC.” Since
the trial court opinion in this case, how
ever, this court has held differently . In
Zambulu v. American Tel. & Tel. Co..
544 F.2d 1333 (5 Cir. 1977), a panel of
this circuit noted thaL the s ta tu te imjxis-
ing the 90 day lim itation could be read
to iiegin the 90 day period on receipt of
a notice th a t the EEOC has either failed
to file a civil action or has not arrived a t
Decision as issued on August 15. I'JOS. You
are hereby notified that you m ay request a
"N otice of Right to -Sue" from this office at
any time. If you so request, the notice will
be issued, and you will have ninety (P0) days
from the date of its receip t to file suit in
Federal D istrict Court.
it is advisable that, if you wish to pursue
this m atte r further, you have an atto rney
ready to proceed with the case prior to is
suance of the Notice of Right to Sue. if von
do not have an atto rney and you wish to
proceed in Federal D istrict C ourt w ith your
case, then call this office for assistance in
securing private legal counsel.
3. The Right-to-Sue le tters stated:
N O T IC E O F R I G H T T O S U E
W I T H IN DO D A Y S
Pursuan t to Section 7tlti(D o f Title VII nl the
Civil Rights Act of ifkvt, a s am ended, you
are hereby notified th a t you m ay, within
ninety (90) days of receipt of th is com m uni
cation. institu te a civil action in the appro
priate Federal D istrict Court. If you are un
able to retain a lawyer, the Federal D istrict
Court, in its discretion, m ay appoint a law
yer to represen t you and to au thorize com
m encem ent of the suit w ithout paym ent of
fees, costs, o r security. If you decide to
institu te su it and find you need assistance,
you m ay take this notice, along with any
correspondence you have received from the
Com m ission, to the Clerk of the Federal Dis
tric t C ourt nearest to the place w here tfie
alleged discrim ination occurred, and requesi
th a t a Federal D istrict Judge appoint counsel
to rep resen t you.
th is o rder is set out in footnote 9, in fra .
BERNARD v GULF OIL CO. 5-ill
a conciliation agreem ent. T hat court
sta ted , however, th a t the lim itations [*>
riod does not l>egin to run until the
EEOC has notified the claim ant “of l>oth
the failure of conciliation anti the
EEOC’s decision not to sue in order to
indicate clearly tha t the adm inistrative
process has been com pleted." Id. at
1335. Accord Turner v. Tex:is Instru
ments, Inc., 556 F.2d 1349 (5 Cir. 1977);
P:igc v. U. S. Indus., Inc., 556 F.2d 346 (5
Cir. 1977), ccrt. denied. 434 U.S. 1045. 98
S.Ct. 890, 54 L.Ed.2d 796 (1978). F u r
therm ore. the Zaml>uto panel held th a t
the final paragraph of the initial le tte r
informed Mrs. Zamhuto th a t “the EEOC
was aw aiting [her] request for issuance
of a righl-to-sue letter. Implicit in this
la tte r sta tem en t is the assurance tha t
the 90 day period would not commence
until this le tte r was requested and dis
patched. Because this paragraph de
clared th a t fu rthe r adm inistrative action
was contem plated by EEOC, it failed to
furnish Mrs. Zam huto (or AT&T) with
the form of notice required under
§ 2000e—5(f)(1) to s ta r t the 90 day period
for filing su it.” 544 F.2d a t 1335. Be
cause the tw o-letter procedure allowed
the claim ant to [>ostpone filing suit, the
Zam huto panel declared the procedure
invalid. Because the use and w onting of
the two le tters was “paten tly mislead
ing, however, th a t panel m ade its ruling
prospective only.
[2] A t oral argum ent, defendants
conceded th a t the present case is directly
controlled by Zam huto and the cases fol
lowing it. P laintiffs filed su it l>eforc the
Zamhuto decision, and the le tters plain
tiffs received are indistinguishable from
those involved in Zamhuto, Page, and
Turner. As in Turner and Page, the
firs t le tte r plaintiffs received informed
them only th a t conciliation effo rts had
failed; it did not indicate th a t the EEOC
had decided not to sue. Also, as in Page
and Zamhuto, the concluding paragraph
of the first le tte r ttssured plaintiffs Lhat
the 90 day [>orind would not commence
until plaintiffs received the second 1. Her.
Because the letters to the plaintiffs in
this case were as “patently m isleading”
as those in prior cases, the 90 day period
for filing suit did not l*'gin until receipt
of the second letter. P laintiffs filed suit
within this (teriod. Therefore, the dis
trict court erred in dism issing the indi
vidual Title VII claims of Bernard and
Brown. A lso,, because the claims of
these class representatives are properlv
before the court, the d istrict court erred
in dism issing the class claims and the
claims of the other named plaintiffs who
did not file a complaint with the EEOC.
W heeler v. American Home Prrxl, 563
F.2d 1233 ( 5 Cir. 1977); Oatis v. Crown
Zellcrhach Corj>„ 398 F.2<1 496 (5 Cir.
1963).
II.
The d istric t judge also gran ted sum
m ary judgm ent in favor of defendants
on p lain tiffs ' § 1981 claim. The trial
judge found tha t p la in tiffs’ com plaint al
leged only “the identical pa tte rn of dis
crim ination which was the subject of the
Bernard, Brown and Johnson EEOC
complaint, which pattern has long since
l>een elim inated.” In addition, the court
found as a fact th a t there were no con
tinuing acts of discrimination.
[3-5] D efendants make two argu
m ents in supjiort of this holding. F irst
they assert th a t the trial court properly
grunted sum m ary judgm ent in their fa
vor liccause plaintiffs failed to resjtond
projierly to defendants’ sum m ary ju d g
ment motion. P laintiffs assert th a t de
fendants have discrim inated in the past
anti presently continue to discrim inate
against blacks in hiring, assignm ent, pro-
5512 BERNARD v. (R EF OIL CO.
motion, training, recruiting, discipline,
and discharge. D efendants argue th a t
“appellants wholly failed to o ffer factual
support for their assertions." Defond-
ants-ap(iellees brief at 18. Defendants
m isunderstand the sum m ary judgm ent
practice. Under Fed.R.Civ.P. 5(5, the
m oving party has the initial burden of
proving th a t there is no genuine issue of
m aterial fact. If the m ovant wishes to
dispute the allegations of the complaint,
he must do so through affidavits, docu
ments, or o ther evidence. ILiless anil
until the m ovant initially provides factu
al support for the sum m ary judgm ent
motion, the opposing party has no duty
to respond to the motion or to present
opposing evidence. Bonzman v. Econom
ics Lab., Inc., 537 F.2d 210 (5 Cir. 1976).
In the present case, defendants present
ed a g rea t num ber of affidav its with
the ir sum m ary judgm ent motion, but in
none of the affidavits did defendants
deny th a t they are discrim inating
against blacks. Therefore, the trial
ju d g e’s ru ling th a t there were no in
stances of continuing discrim ination was
unsupported by the sum m ary judgm ent
record. Defendants, as the parlies re
questing sum m ary judgm ent, failed to
m eet their burden of show ing the ai>-
sence of any m aterial issue of fact.
[6-8] Defendants also argue th a t
even if the facts p lain tiffs allege are
true, we m ust dismiss p la in tiffs ' § 1981
claim. In support of this contention, de
fendants argue prim arily th a t the appli
cable s ta tu te of lim itations is th a t pro
vider! by Tex.Rev.Civ.Stat.Ann. art. 5526,
Johnson v. Goodyear Tire & Rubber Co.,
491 F.2d 1364, 1379 (5 Cir. 1974), and
th a t under Texas law, the s ta tu te of lim
itations begins to run when the elements
necessary for the cause of action first
coalesce, regardless of w hether defend
an ts later commiL other acts of the same
nature. U nder defendants' theory, the
s ta tu te of lim itations would have expired
on p la in tiffs’ claim two years a f te r de
fendants liegan discrim inating against
blacks, even if defendants couUnu. u
such discrim ination to the tim e plaintiffs
filed this action. This argum ent is frivo
lous. Under both Texas and federal law.
the relevant date for the purposes of the
s ta tu te of lim itations is the last date on
which defendants improperly harmed
plaintiffs. Furtherm ore, plaintiffs may
collect dam ages for any wrongful acts
defendants com mitted within the lim ita
tions period. E. g.. Marlowe v. Fisher
Roily, 489 F.2d 1057. 1063 ( 6 Cir. 1973):
Macklin v. S/mclnr Freight System s, Inc.,
156 U.S.App.D.C. 69, 77, 478 F.2d 979.
987 (1973); United S ta les r. Georgia
Power Co.. 474 F.2d 906, 924 (5 Cir.
1973); A lexander & Pulley Const. Co. c.
Sfiain, 477 S.W.2d 301 (Tex.Civ.App.—
Tyler 1972 no writ); Goldman v. Ram
say, 62 S.W.2d 176 (Tex.Civ.App.—Tex
arkana 1933 erro r dism'd). D efendants'
reliance on Kit troll v. City o f Rockwall,
526 F.2d 715 (5 Cir.), cert, denied, 426
U.S. 925, 96 S.Ct. 2636. 49 L.Ed.2d 379
(1976), is unfounded. T hat ease turned
on the rule, peculiar to trespass cases,
th a t the s ta tu te of lim itations liegins to
run on the date when the trespassers
first entered the land, even if they con
tinue to use the land a f te r th a t date.
Baker v. City o f Fort Worth, 146 Tex.
600, 210 S.W.2d 564 (1948). This rule
cannot he applied when defendants, as in
this case, continue to violate plain tiffs '
rights w ith new and distinct actions.
•
[9 | Therefore, the d istric t judge
erred in holding th a t the s ta tu te of limi
tations totally barred p la in tiffs’ § 1981
claim. P lain tiffs’ cause of action and
any recovery Ihev may receive, however,
m ust be limited to those violations occur
ring within the two year |M:riod iminedi-
BERNARD v. (UI! '■ OIL CO. 5:' III
at-ely preceding ihe filing of tho com
plain t or thereafte r.
In addition to holding th a t s ta tu te s of
lim itations barred p la in tiffs- claims, the
j d istric t court “acknowledge^! | a most
compelling argum ent for the equitable
- doctrine of laches in this particu lar case
• ’ Because we disagree with
.. the c o u rts ruling on the legal defenses,
we find it necessary to discuss this a lte r
native theory in support of the judgm ent
below. Loire v. Pale Stcvetloring Co.,
558 F.2d 769. 770 n. 2 (5 Cir. 1977).
[10] In Franks i\ Bn ivmun Tmnsp.
Co., 495 F.2d 398, 406 (5 Cir. 1974). ro v’d
< on o ther grtis., 42-1 U.S. 747, 96 S.CL
1251. 47 L.Ed.2d 444 (1976), this court
t held th a t the doctrine of laches is appli-
; cable to Title VII and § 1981 actions
j brought by private p laintiffs, even if the
legal lim itations periods have not run.
To apply laches in a particu lar case, the
; court m ust find both th a t the plain tiff
j delayed inexcusably in bringing the suit
and th a t this delay unduly prejudiced de
fendants. Save Our Wetlands. Inc. r.
Lr.S. A rm y Cor;xs o f Engineers, 549 F.2d
t 1021, 1026 (5 Cir.), cert, denial, 434 U.S.
i 836, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977).
j We conclude th a t the evidence l>efore
j tho court on this sum m ary judgm ent mo-
| tion does not allow a finding th a t either
| of these elem ents exists.5 D efendants
argue th a t plaintiffs were aw are of their
cause of action a t !e:ist as early as 1967
i when they filed their initial charges
' aga inst defendants with the EEOC.
S. W hich party has the burden of proof on the
; issues of laches is som ew hat unclear. S e e G.
Gilm ore & C. Black. The Law of A dm iralty
/ . I 76 (2d ed. 1975); Laiv r. R o y a l P a lm
B e a c h C o lo n y . 578 l\2 d 98. 101 (5 f i r . I97H);
W h e a t v. H all. 335 K.2d 874. 876 (5 Cir. 1976).
The determ ination is com plicated by the fact
They also assert th a t p laintiffs could
have requested a Notice of Right to Sue
from the EEOC and filed a private ac
tion in 1970. 35 Fed.R.-g IfXMHi (.Inn**
18, 1970) (currently at 29 < .!•' it. liifil 2 .,e
(1977)). Defendants therefore argue
tha t p laintiffs' failure to file a com plaint
with the district court until 1976 “shows
conclusively that they have slept on their
rights." Defendants-apfiellees’ brief at
28. The only justification p laintiffs of
fer for this nine-year delay in filing suit
is their lessened righ t to aw ait tho com
pletion of the EEOC adm inistrative proc
ess. The issue before us, therefore, is
whether p lain tiffs ' failure to file a pri
vate action until a f te r tile term ination of
the EEOC's active, continuing adm inis
trative process is unreasonable.
The Suprem e Court in Occidenttd L ife
Ins. Co. v. EEOC, 432 U.S. 355, 97 S.Ct.
2447. 53 L.Ed.2d 402 (1977), discussed a
sim ilar issue. The em ployer-defendant
in Occitlental L ife claimed tha t either
federal or sta te sta tu tes barred the
EEOC from in itiating suit more than
three years a f te r a claim ant had filed a
charge with the EEOC. In language
particularly applicable to the present
case, the Court indicated: “When Con
gress f irs t enacted Title VII in 196-1 it
selected '[cjooperation and voluntary
compliance . . . as the preferred
means for achieving’ the goal of equality
of em ploym ent op[Mirtunities.'' Id., 97
S.Ct. a t 2455. A legislative analysis of
the 1972 am endm ents to Title VII is sim
ilar:
It is hof>ed th a t recourse to the private
lawsuit will be the exception and not .
that the question has arisen m ost often in nd-
m iraity cases, which may not be ^mirclv co n
trolling in the present case. We find it u n nec
essary to decide this issue, how ever, b e c a u s e
the la d s a s presented on tins sum m ary ju d g
m ent m otion, w ithout more, do not allow a
finding of laches.
5514 BERNARD v. GI ' F OIL CO.
the rule, and th a t the vast m ajority of
com plaints will he handled through the
offices of the EEOC or the A ttorney
General, as appropriate. However, as
the individual's r igh t to redress are
param ount under the provisions of Ti
tle VII it is necessary th a t all avenues
be left open for quick and effective
relief.
118 Cong.Rec. 7555 (1972).
[11,12] These s ta tem en ts clearly indi
cate th a t the privaLe remedy allowed by
42 U.S.C. § 2000e-5(f)(l) is only an a lte r
native method for a p la in tiff to obtain
relief from discrimination. A plaintiff
cannot be penalized for choosing to forgo
this alternative and electing instead the
legislatively and judicially favored m eth
od of relying on the adm inistrative
processes of the EEOC.* We therefore
hold th a t p la in tiffs’ failure to file their
Title VII claim until completion of the
EEOC process was not inexcusable delay
and could not support the application of
laches.
[13] P lain tiffs’ § 1981 claim is in a
slightly d iffe ren t posture. We have al
ready decided th a t the s ta te s ta tu te of
lim itations prevents plaintiffs from as
se rting claims arising more than two
years before the filing of the com plain t
Therefore, any delay occurring before
th a t period is irrelevant to the § 1981
claim. D efendants have not alleged th a t
plaintiffs delayed inexcusably in assert
ing the claims arising within those two
years. Therefore, it is unnecessary for
us to consider w hether laches could be
invoked to bar those claims arising with
in the legal lim itations period.
6. As sta ted in S a n g s te r v. U n ite d A i r L in es .
438 F.Supp. 1221 (N.D.Cal. 1977):
Mrs. Songster's reliance on the EEOC to
conciliate her dispute w ith United cannot be
characterized as lack of diligence on her part
in view of the strong federal policy favoring
[14. 15] We also conciutle that, on the
evidence presented, any prejudice su f
fered by defendants was caused not by
p la in tiffs’ delay but by defendan ts’ own
actions. In the only affidavit supporting
this elem ent of defendan ts’ sum m ary
judgm ent motion, the [lersonnel director
of Gulf indicated tha t since the date
when plaintiffs allege the violations be
gan, defendant Gulf has made several
[icrsonncl changes, a number of m anage
m ent personnel have retired, and * wo
personnel m anagers have deceased.
These s ta tem en ts are insufficient
grounds on which to base a finding of
prejudice. The fact th a t there have
been jicrsonnel changes or th a t employ
ees have retired is irrelevant unless those
employees are unavailable. A kers v.
S ta te Marine Lines, Inc., 344 F.2d 217,
221 (5 Cir. 1965).
[16, 17] The affidavit does indicate
th a t two form er personnel m anagers
have died and th a t those em ployees’
knowledge is irreplaceable. Gulf asserts
the live testim ony of these employees is
necessary, however, only because it has
destroyed the w ritten records of the per
sonnel decisions made from 1955 through
1974. D efendants argue th a t they can
not now adequately defend against
p la in tiffs’ charges w ithout reference to
these destroyed records. The EEOC in
formed defendants of the charges in
1967. P ursuant to its normal docum ent
retention plan, Gulf retained docum ents
for only fo u r years. Thus, Gulf did not
destroy the docum ents relevant to the
claims arising in 1965 until 1969, two .
such reliance. She cannot he found chargea
ble w ith neglect which would bar her right
to bring this action when, tru sting in the
good offices and prom ise of her governm ent
to seek resolution of her com plaint, she com
m its th a t grievance to its care.
I
RERNARD v GULF OIL CO. 5515
years a f te r Gulf learned of the charges.
A p arty cannot assert the defense of
laches merely because it has failed to
preserve evidence despite knowledge of a
pending claim. American Marino Corji.
v. Citizens Cas. Co., 4-17 F.2d t.'ittS (5 Cir.
1971).7 This rule is of even g rea te r va
lidity in this case than in most. Since
1966, the EEOC h;is m aintained a regu
lation prohibiting those charged with Ti
tle VII violations from destroying rec
ords relevant to the charge. Ill Fed.Reg.
2S33 (Feb. 17, 1966) (curren tly a t 29
C.F.R. 1602.14 (1977)). Therefore, de
fendants ' argum ent th a t p la in tiffs ' delay
prejudiced defendants is w ithout merit.
Insofar as defendants have been preju
diced, the evidence before the court
shows th a t defendants’ own negligence
and disregard of EEOC regulations
caused the prejudice.8 We conclude tha t
the present facts do not allow findings
7. The concluding sta tem en ts of the Suprem e
C ourt in O c c id e n ta l L i fe a re again relevant:
The absence o f inflexible tim e lim itations on
the bringing of law suits will not. as the com-
panv asserts, deprive defendan ts in Title VU
civil actions of fundam ental fairness or sub
jec t them to the surprise and prejudice that
can result from the p rosecution of sta le
claim s. Unlike the liti|’nnt in a private ac
tion w ho m ay first learn of the cause anainst
him upon service of the com plaint, the Title
M l defendant is alerted to the possibility of
an enforcem ent suit w ithin 10 days after a
charge has been filed. This prom pt notice
serves, as C ongress intended, to give him an
opportun ity to gather and preserve evidence
in anticipation of a court action.
M oreover, during the pendency of EEOC ad
m inistrative proceedings, a potential defend
an t is kept inform ed of the progress of the
action. R egulations prom ulgated by the
EEOC require tha t the charged party be
prom ptly notified w hen a determ ination of
reasonable cause has been m ade. 29 CFR
§ 1601.19b(b), and when the F.EOC has te r
m inated its efforts to conciliate a dispute
id-. $§ 1601.23. 1601.25.
97 S.Ct. at 2458.
of uithur utirdJLsotuilile cicltxv or p re ju
dice. Therefore the doctrine of laches is
inapplicable.
IV.
[IS] Recause we tire rem anding this
case for fu rthe r action, it is necessary
th a t we consider the propriety of an or
der the d istric t judge entered restric ting
the parties' communication with the
tnemlx.'rs of (he putative class. Judge
Sieger, in Chief .Judge Fisher's absence,
originally entered an order generally
prohibiting all communication w ithout
exception. Chief Judge Fisher la ter
modified the order. It is of this la ter
order that plaintiffs complain on appeal.
The modified order was explicitly mod
eled on those suggested by the Federal
Judicial C enter in the Manual for Com
plex Litigation, P art 2, § 1.41 (1977).’
8. D efendants adm it that p laintiffs' § 1981
claim s are nearly identical to their Title VU
claim s. D efendants could therefore disprove
the claim s with the sam e evidence. Since the
“ FOC regulations required defendants to
m aintain all records relevant to the Title VII
claim s, detendan is could not have been p re ju
diced with respect to either Title VII or i 1981.
9. The o rder provided:
IT IS ORDERED:
(1) That G u lfs m otion to modify Judge S ieg
e r 's O rder dated May 28. 1976 is granted:
(2) That Judge S tc g e rs O rder dated M ay 23.
1976 be modified so as to read as follows:
In this action, ail parties hereto and their
counsel are forbidden directly or indirectly,
orally o r in w riting, to com m unicate concern*
ing such action with any potential or actual
class m em ber not a form al party to the action
w ithout the consent and approval of the pro»
posed com m unication and proposed ad dress
ees by order of this Court. Anv such (im
posed com m unication shall he presented to
this C ourt in w riting with a designation of or
description of ail addressees and w ith a mo
tion and proposed o rder for prior approval by
th is C ourt of the proposed com m unication.
The com m unications forbidden by tins order
5316 BERNARD v. ( 'LF OIL CO.
P lain tiffs argue th a t the order was im
proper for several reasons. F irst, they
include, but are not lim ited to. (a) solicitation
d irectly o r indirectly of I^gni represen tation of
potential and actual class m em bers who are
not formal parties to the class actum ; (b) so
licitation of fees and expenses and agreem ents
to pay fees and expenses from potential and
actual class m em bers w ho are not form al par
ties to the class action: (c) solicitation by for
mal parties to the class action of requests by
class m em bers to opt out in class actions un
der subparagraph (b)(3) of Rule 23. F.R.Civ.P..
and (d) com m unications from counsel or a p ar
ty w hich m ay tend to m isrepresent the sta tus,
purposes and effects of the class action, and of
any actual or potential C ourt orders therein
w hich m ay create im pressions tcuiding. w ith
ou t cause, to reflect adversely on any party,
any counsel, this Court, or the adm inistration
of justice. The obligations and prohibitions of
th is order are not exclusive. All o th er ethical,
legal and equitable obligations are unaffected
by this order.
This o rder does not forbid ( l) com m unica
tions betw een an a tto rney and his client or a
p rospective client, who has on the initiative of
the client or prospective client consulted with,
em ployed or proposed to em ploy the attorney,
or (2) com m unications occurring in the regular
course of business or in the perform ance of
the duties of a public office o r agency (such as
the A ttorney G eneral) w hich do not have the
effect of soliciting represen tation by counsel,
o r m isrepresenting the sta tus, purposes or ef
fect of the action and orders therein.
If any party or counsel for a partv a sse rts a
constitu tional right to com m unicate w ith any
m em ber of the class w ithout prior restrain t
and does so com m unicate pu rsuan t to th a t as
serted right, he shall w ithin five days after
such com m unication file w ith th e C ourt a copy
of such com m unication, if in w riting, or an
accurate and substantially com plete sum m ary
of the com m unication if oral.
(3) That Gulf be allowed to proceed 'with the
paym ent of back pay aw ards and the obtaining
of receipts and releases from those em ployees
covered by the Conciliation A greem ent dated
April 14, 1976, betw een Gulf, the U.S. Equal
Em ploym ent O pportunity Com m ission and the
Office for Equal O pportunity , U.S. D epartm ent
of the In tenon That the private settlem ent of
charges that the em ployer has violated Title
VII is to be encouraged. U n ite d S ta r r s v. A H r-
;ussert th a t it is inconsistent with the
policies of Rule 23 of the Federal Rules
p h c n y - L u d lu m In d u s tr ie s . In c ., 517 F 2d 826
(5th Cir. 1975). cerr. d e n i f t t 125 U.S 944 9*1
S.Ct. 1684. 48 L.Ed.2d 187 (1970/
(4) That the Clerk of the C ourt mail a notice
to all em ployees of Gulf at its Port A rthur
Refiner.' w ho are covered by the Conciliation
A greem ent and w ho have not signed receipts
and releases for back pay aw ards inform ing
them that they have 45 days from the date of
the Clerk s notice to accept the offer as pro
vided for by the Conciliation A greem ent or
such offer will expire until fu rther order of the
Court:
(5) That the con ten ts of the notice be the
sam e as th a t set out in A ppendix I;
(6) That Gulf bear the expense ol mailing the
notice and a copy of the Court s o rder to the
individuals covered by item (4) above;
(7) lh a t ail em ployees who have delivered
receip ts and releases to Gulf on or before 55
days from the date of the C lerk 's notice snail
be deem ed to have accepted the offer as con
tained in the Conciliation Agreem ent;
(8) T hat any fu rther com m unication, either
d irect o r indirect, oral o r in w riting (other than
those perm itted pursuan t to parag raph (2)
above) from the nam ed parties, the ir rep re
sentatives or counsel to the poiem iaJ or actual
class m em bers not form al parties to this action
is forbidden;
(9) T hat Gulf inform the C ourt 65 days from
the date of the C lerk 's notice to be sent by the
Clerk of the C ourt of the nam es of potential or
actual class m em bers who have accepted the
offer of back pay and signed receip ts and re
leases pu rsu an t to the Conciliation A greem ent
and the nam es of those who have refused or
faded to respond.
It is P la in tiffs contention th a t any such pro
visions as hereinbefore sta ted th a t limit com
m unication w ith potential class m em bers are
constitu tionally invalid, citing R o d p e r s v. U n i t
e d S ta t e s S te e l C o rp o r a tio n . 508 F.2d 152 (3rd
Cir. 1975). c e r t, d e n ie d , 420 U.S. 969. 95 S.Ct.
1386. 43 L.Ed.2d 649 (1975). This C ourt finds
that the R o d p e r s case is inapplicable, and that
th is o rder com ports with the requisites set out
in the M a n u a l fo r C o m p le x U t ip a t io n . Section
1.41, p. 106 CCH Edition 1973. w hich specifi
cally exem pts constitutionally p ro tected com
m unication w hen the substance of such com
m unication is filed w ith the Court.
BERNARD v GULF OIL CO.
of Civil Procedure and therefore beyond
the powers of the d istric t court. We
re ject th a t argum ent and hold th a t the
order was a permissible, exercise of the
trial court’s discretionary jxnver in con
trolling a class action.
As one noted treatise sta tes:
Because class actions tend to be ex
trem ely complicated and protracted,
the ir m anagem ent and disposition fre
quently require the exercise of con
siderable judicial control and ingenuity
in the fram ing of orders rela ting to
various aspects of the case. Rule 23(d)
provides the trial court w ith extensive
discretion in achieving this objective
and offers some guidance as to the
types of problems the d istric t judge i3
likely to encounter.
7A C- W right & A. Miller. Federal Prac
tice & Procedure § 1791 a t 193 (1972).">
[19-21] Wo holieve the trial judge
could have easily concluded thaL his in
te re s t in and duty of controlling the suit
in this m anner outweighed any in terest
p la in tiffs’ attorneys may have in commu
nicating with memlvers of the putative
class w ithout the prior approval of the
court. Rule 23 imposes on the trial
ju d g e the du ty of assuring th a t a class
action is an appropriate way to resolve
the controversy, the represen tative par
ties will fairly and adequately protect
the interests o f the class, the pleading
and trial o f the case is conducted fairly
and efficiently, and any se ttlem en t or
compromise is not unfavorable to the
class." The present order could be help
ful in exercising many of these duties,
especially those of nunuing fairrn uid
efficiency. Any comniuiiieatiun U.-u.i ,.u
the parties and class inemiiers mav mis
lead the cliuss mem ber; by a p ^ a r in g to
reflect the opinion of the court ra th e r
than th a t of the party m aking the com
munication. This danger exists "simply
localise of references to the title of the
court, the style of the action, the name
of the judge, and to official processes."
Manual for Complex Litigation, P a rt 1,
§ U 1 a t 27 (C. W right & A. Miller ed.’
19<;). The trial court should therefore
have the |x>wer to exam ine any commu
nication in order to assure tha t class
memliers will not lie misled in this m an
ner. Even ap a rt from any references to
the court, communications to potential
class members by the parties may un
fairly represent facts or issues relevant
to the action. When those communica
tions a re sent during a limited fieriixl in
which class momticrs may opt out of the
class, or, as here, in which they may
accept a hack pay offer pursuant to a
conciliation agreem ent, any m isleading
sta tem en t may lx; irreparable. The trial
judge may also believe th a t requiring
prior approval of communications will re
duce the risk of the class meml>ers Up
coming confused by an avalanche of no
tices, inquiries, and argum ents directed
to them by each of the parties to this
action. Thus, there are many substan
tial reasons a trial judge may believe
th a t an order such as tha t suggested In’
10. See In R e A i r C ra s h D is a s te r a t F lo rida
E v e r g la d e s , 549 F 2d 1006. 1012 n. X (5 Cir.
1977): "In class actions w e recognize. indeed
insist upon, the cou rt's partic ipation as the
m anager of the case .”
n . Thus, a lthough in the o rdinary n.m -class
su .t, restric tions such as I hose in the present
case m ight he entered in the form of a tem po
rary injunction and only after relatively strict
scrutiny of specific criteria, the d rafters of the
Kulcs felt that the tn a i judge needed broader
pow ers w ith respect to class a n io n s and spe-
ciaily im bued the district coon with m ore ex
tensive au tho rity to control Hit- sun.
5318 BERNARD GULF OIL CO.
the Manual for Complex Litigation is
ju stified .11
P lain tiffs assert the ir interests out
weigh these concerns of the trial judge.
P lain tiffs argue tha t to conduct the ac
tion adequately they m ust be allowed to
contact class members in order l>olh to
discover their case and to inform class
members of the ir civil rights. They al
lege th a t the order prevents them from
perform ing those functions. This is not
true; the order only prohibits contact
w ith class members w ithout prior a|>-
proval of the court. Therefore, only
p la in tiffs’ in terest in u n r e s t r a i n & i com
munications is to be balanced against the
court’s in terests in requiring court ap
proval of all communications sen t to
class members.
[22-24] P lain tiffs’ ability to discover
the ir case is in no way reduced by the
requirem ent th a t the court approve any
contact. I t is expected th a t the trial
judge will exercise “minimal judicial con
trol of these communications . .”
and freely allow discovery. Manual for
Complex L itigation. P a rt 1, § 1.41 a t 2D
(C. W right & A. Miller ed. 197”). The
trial judge should refuse to allow only
those a ttem pts a t discovery th a t would
d ea rly affect the fairness or efficiency
12. T he M anual enum erates o ther potential
abuses th a t m ay justify the use of such an
order, for exam ple: solicitation of direct legal
represen tation of potential and actual class
m em bers w ho a re not form al parries to the
class action; and solicitation of funds and
agreem ents to pay fees and expenses from po
ten tial and actual class m em bers w ho -are not
form al parries to the class action. Arguably
these concerns are not significant in this case
in which th e potential class is represen ted by a
non-profit o rganization w hose fees are not
paid directly by the class m em bers.
13. C o m p a r e D evelopm ents in the I-uw-CIass
A ctions. 89 Harv.L.Rev. 1281, 1601-04 (1976),
w i th W a ld o v. l ^ t k e s h o r e Estates. In c ., 433
F.Supp. 782. 792 n. 10 (E.D.La. 1977).
of the litigation adversely. P laintiffs
have not shown th a t this “minimal con
tro l” would prejudice them in any way.
Therefore, we do not believe p laintiffs
have any significant in terest in a* I ing
discovery w ithout the prior approval of
the court. Similarly, to the ex ten t th a t
Rule 23 implicitly provides plaintiffs
w ith a r igh t to “encourag{e] common
participation in the litigation of [plain
tif fs ’ race] discrim ination claim ,” Coles v.
Marsh, 5o0 F.2d 180. 1S9 (3 Cir.), cert.
denied sub nom., Blue Cross v. Marsh,
434 U.S. 985, 98 S.Ct. fill. 54 L.Ed.2d 479
(1977), th a t same ru le’s explicit g ran t of
au thority to the trial court to control the
conduct and se ttlem en t of the action ou t
weighs p la in tiffs’ right. Therefore, al
though there may be o ther methods of
achieving sim ilar results,15 Rule 23 does
not prohibit a trial court’3 discretionary
use of an order requiring prior approval
of communications with class members.14
[25] P lain tiffs nex t argue th a t the
order is an unconstitutional prior re
s tra in t on the ir communication with the
class and is es[>ecially egregious in this
case in which plaintiffs arc represented
by an organization highly regarded as an
effective opfionent of discrimination.
14. B ecause the trial judge m ade no findings of
fact concerning plain tiffs’ a tto rneys' alleged
im proprieties. the allegations are irrelevant to
our decision. We hold th a t the trial judge had
the pow er to restric t com m unications w ithout
regard to any allegations of unethical conduct.
This holding is necessary because m any of the
dangers of abuse and irreparab le harm dis
cussed above can arise w ithout warning. Re
quiring the d istric t court to find specifi* evi
dence of the dangers in a particu lar case be
fore acting would severely ham per its ability
to control the case. In m any instances, the
abuses m ust not m erely lie punished, but m ust
be prevented. I bis can be accom plished only
if the trial judge can order th e restric tions be
fore the abuses have m aterialized.
BERNARD V 311LF OIL CO. 55 19
This argum ent is considered and rejected
in the recent revision of the Manual for
Complex Litigation. P art 1, § 1.41 a t 1-3
(C. W right & A. Miller ed. 1978 Cum.
Supp.) and in Wultlo r. L*ikeshore Es
tates, Inc.. 433 F.Supp. 782 (K.D.La.
191 i). We find it unnecessary, however,
to decide w hether the in terests discussed
above would also ju stify the prior re
s tra in t of any constitutionally protected
communication. The o rder in the
present case, unlike those in Rodgers v.
United S tates Steel Curp.. 508 F.2d 152
(3 Cir.), cert, denied. 423 U.S. 802, 96
S Ct. 54, 46 L.Ed.2d 50 (1975), W idth or
the Manual, explicitly exem pts communi
cations th a t a party or counsel asserts
are constitutionally protected from prior
restra in t.
[26] Despite this provision, plaintiffs
argue th a t the order chills their free ex
ercise of protected activities itecausc
they can never lie certain th a t the dis
tr ic t court will agree with their assertion
th a t the communication is protected.15
As an exam ple of such a disagreem ent,
p lain tiffs rely on an incident in Lho trial
court. P lain tiffs subm itted a document
to the court fo r approval asserting that
it was constitutionally protected. The
judge refused to allow pla in tiffs to send
the document to the class members.
P lain tiffs argue th a t if they had sent the
docum ent w ithout subm itting it they
may have iveen subject to a contem pt
order. This argum ent is w ithout merit.
The exemption applies when the parties
m ake any communication they assert is
protected, not merely when the trial
judge agrees with th a t assertion. Thus,
as long as a party or counsel makes any
unapproved contact with class members
in the good faith lielief th a t the contact
13. See Note, 88 Harv.L.Rev. 1911. 1922 n. 7-t
(1973): The "proviso exem pting constitu tional
ly-protected com m unication does not elimi-
is constitutionally shielded, he may not
lie punished for violating the court's o r
der. Once p laintiffs submillc-d the ,.
[>osed communication to the
judge, however, the exem ption f„r c o m
munications they asserted were constitu
tionally protected was no- longer rele
vant. At tha t [mint the issue became
w hether the Constitution, in fact, pro
tected the communication ra th e r than
w hether the plaintiffs had distributed it
in the good faith liolief that it was con
stitutionally protected. P laintiffs have
not argued on appeal th a t the trial judge
erred in deciding tha t he could projierly
prohibiL the distribution of tha t particu
lar docum ent nor have they alleged his
determ ination was untimely. They have
alluded to the incident only as an exam
ple of the alleged “chill” the order pro
hibiting unapproved communication
placer 1 on the exercise of their first
am endm ent rights, notw ithstanding the
exception for communications thev as
serted to lie constitutionally protected.
Therefore, we need not decide w hether
the judge pro[>erly prohibited dissemina
tion of this particu lar notice a f te r plain
tiffs subm itted it for his approval. We
note, however, th a t even though the pro
hibition on unapproved communications
is permissible, the ju d g e’s separate deci
sions approving or disapproving particu
lar communications would normally t>c
projier subjects for apfieHate review.
[2 i] Wo conclude th a t the present or
der adequately safeguards the first
am endm ent rights of the parties and
counsel iiecnuse even if the prohibitions
of the order are vague or overbroad, the
parties can avoid them if they assort a
good faith lielief tha t a particular com
munication is constitutionally protected.
n a tr indeed it h ichhphts— the ovprbrendth
and resu ltan t chilling effort of the M anual's
proposed rule."
5320 BERNARD GULF OIL CO.
Cf. Screws v. United S ta tes, 325 U S. 91,
101-02. 65 S.Ct. 1031, 1035-36. SO L.Ed.
1495 (1945): “the requirem ent of specific
in ten t to do a prohibited act may avoid
those consequences to the accused which
may otherw ise render a vague or indefi
nite s ta tu te invalid.”
[28] P lain tiffs’ final contention is
th a t the order violates their righ t to
equal protection of the laws. This claim
is based on the assertion th a t the order
allows defendants to o ffer back pay se t
tlem ents to the class members and to
contact class members in the ordinary
course of defendants’ business w ithout
allowing plain tiffs sim ilar rights. This
argum ent is invalid because it is based
on an incorrect reading of the order.
The order prohibits defendants as well as
plaintiffs from contacting the class mem
bers regarding back pay settlem ents.
R ather than allowing fu rth e r contact by
e ith er party , it directs t.he court clerk to
d istribu te a notice to class members in
form ing them th a t they have 45 days
w ithin which to accept the back pay
aw ard to which they are entitled under
the conciliation agreem ent negotiated by
the EEOC and directs them not to accept
the aw ard if they wish to participate in
any recovery secured by p lain tiffs in this
action. F urther, the provision allowing
communication with class members in
the regular course of business applies
equally to all parties and counsel, not
merely to defendants. It could tic a r
gued th a t allowing contact in the regular
course of business would tend to favor
defendants in practice because of their
g rea te r day-to-day contact with the em
ployees. Any m anagem ent discussion of
1. Sam ple Pretrial O rder No. 15. The suepest-
ed form is a reprin t of a pretria l o rder entered
by the District C ourt for the W estern District
of Missouri. M a n u a l. Pt. 2. § 1.41 n.33.
the merits of the suit with class mem-
lx»rs, however, would not he in the regu
lar course of business. Therefore, al
though defendants may have g rea te r
day-to-day contact with the cl.- ■; mem
bers, the order does not allow defendant*
any g rea te r freedom than plaintiffs in
discussing the suit w ith class members.
We therefore conclude th a t the d istrict
court’s order of June 22, 1976, is a per
missible exercise of the cou rt’s [lower to
control class action litigation and is pro
hibited by neither the first nor fifth
am endm ents to the Constitution.
The judgm ent of the d istric t court is
REVERSED and the case REMANDED
for proceedings consistent w ith this opin
ion.
GODBOLD, Circuit Judge, concurring
in p a r t and dissenting in part:
I concur in P arts I through III of the
m ajority opinion. I dissent from P art
IV, which upholds the validity of the
d istric t court's order restric ting commu
nications by named parties and their
counsel w ith any actual or potential class
m em ber not a formal party .
The issue is im portant. The critical
p art of the order in question follows the
form suggested in the Manual for Com
plex Litigation, 1977 ed., Pt. 2, § 1.41.1
This case presents in this circuit for the
first tim e the validity of such an order.
A nother circuit has taken a [xisition con
tra ry to the m ajority 's decision.2
In o ther cases I have vigorously as
serted the [xiwcr of the d istric t court to
m anage class actions and o ther complex
2. C o le s v. M a r sh . 560 F.2d 186 (CA3), cert.
d e w e d . 434 U.S. 985. 98 S.Ct. 611. 54 I..Ed.2d
479 (1977). S e e a ls o R o d c e r s v. U n ite d S ta t e s
S t e e l C o rp .. 508 F 2d 152 (CA3). cert, d e w e d ,
423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975).
BERNARD v 5521j ULF OIL CO.
cases.5 But, in my opinion, the re
stra in ts imposed in this case contravene
Rule 23, F.R.Civ.P., and violate freedom
of speech and freedom of association as
guaran teed l>y our Constitution.
I. The history
U nderstanding the issues requires a
more complete history than the brief
s ta tem en t made by the m ajority. In
April 1976 Gulf and EEOC entered into
a conciliation agreem ent covering alleged
racial discrimination by Gulf against
black employees a t its P ort A rthur, T ex
as plant, pursuant to which Gulf agreed
to cease alleged discrim inatory practices,
establish an affirm ative action program,
and o ffer back pay to alleged discrimi-
natees, ranging, for various employees
and various periods, l>etween $2.81 per
m onth of service and $5.62 per month of
service. The affected employees were
not parties to the agreem ent. Gulf
agreed to notify affected employees of
the back pay agreed upon; failure of the
employee to respond would be regarded
as acceptance. According to Gulf, back
pay was offered to 614 present and for
m er black employees of the Port A rthur
plant.4
In May 1976, while im plem entation of
the conciliation agreem ent was in
progress, six present or retired black em
ployees of the Port A rthu r p lant brought
this class suit, under T itle VII of the
Civil Rights Act of 1964 and 42 U.S.C.
§ 1981, on behalf of black employees,
black form er employees of the plant, ami
black applicants rejected for employment
w ith Gulf Oil Company (not limited to
the Port A rthu r plant). P lain tiffs were
represented by S tella Morrison, of Port
3. In r e A i r C ra s h D is a s te r a t F lo rid a E v e r
g la d e s , 549 F.2d 1006, 1012 & n.8 (CA5. 1977);
H u f f v . .V. D. C a s s C o .. 485 F.2d 710, 712-13
(CAS, 1973) (en banc).
A rthur, Charles E. Cotton, of New Orle
ans, and three New York atto rneys from
the NAACP Ix“gal Defense and Educa
tion Fund, Jack Gr<‘ nlx’rg, Barry L.
Goldstein and Ulysses Gene ThiUxleaux.
P lain tiffs asked injunctive and declarato
ry relief and dam ages. The defendants
are Gulf and the Oil, Chemical and
Atomic W orkers’ Union. P laintiffs
charged th a t Gulf discrim inated against
blacks in hiring and job assignm ents,
employed discrim inatory tests, paid un
equal pay, employed racially tainted pro
motion and progression practices, denied
train ing to blacks, refused seniority to
blacks, anil discrim inaterily discharged
and disciplined blacks. They alleged
tha t the union had agreed to, acquiesced
in o r condoned Gulf’s discrim inatory
practices.
According to affidavits la te r filed by
p la in tiffs’ counsel, a m eeting of black
employees who were memt>er3 of the al
leged class was held May 22 a t the re
quest of the named plaintiffs, piaintii'fs’
counsel were invited to a ttend , and some
did attend. Gulf was served with proc
ess May 24. On May 27, before Gulf
filed responsive pleadings, it filed a two-
sentence, unsworn request th a t the court
en ter an order lim iting communications
by parties and the ir counsel w ith actual
or [xitcntial class members. The motion
was accompanied by an unsworn brief
asserting th a t Ulysses Gene Thibodeaux,
one of p la in tiffs ' attorneys, hail recom
mended to actual and potential class
members a t a m eeting th a t they not sign
receipts and releases sent them pursuant
to the conciliation agreem ent. FurtlfCr,
the brief said th a t it had been rejxirted
to Gulf th a t Thibodeaux advised the
4. And 29 female employees.
5322 BERN Alii) v. GUL’ OIL CO.
group th a t they should mail hack to Gulf
checks received pursuant to the concilia
tion agreem ent because he could recover
tw ice as much for them by the jx-nding
suit. Gulf asserted in its brief tha t
these actions violated standards imposed
on attorneys by law and by the Canons
of Ethics. I t asserted th a t an order of
the court was necessary to prevent fu r
th e r communication of the type alleged
and th a t the sta tem ents by p la in tiffs’
atto rney would prejudice its defense of
the case and the conciliation efforts. In
its brief Gulf said th a t when the sum
mons was served on it approxim ately 452
of the 54-3 employees entitled to back
pay had received checks and executed
general releases.
On May 2S, a f te r oral argum ent by the
parties, D istrict Judge S teger entered a
tem porary order effective until Chief
Judge Fisher could re tu rn and assume
control and adm inistration of the case.
His order is substantially the same as
paragraph 2 of the modified order, which
appears as note 9 of the m ajority opin
ion, th a t is, it contained the restra in ts
w ithout the exceptions. Judge S teger
m ade no findings.
On June 8, Gulf filed an unverified
motion to modify the tem porary order to
perm it it to resume offering back pay
aw ards and to receive receipts and re
leases, as provided by the conciliation
agreem ent. Gulf added, again by an un
sworn brief attached to its motion, a
new allegation of misconduct by saying
th a t it had been reported to Gulf tha t
Thibodeaux hail recommended to the
persons a t the m eeting th a t even if an
employee had signed a receipt and re
lease he should return his check to Gulf.
Gulf also filed an affidav it from EEOC
sta tin g th a t it felt the issues in this suit
were “almost identical” to those em
braced by the conciliation agreem ent.
P laintiffs filed an unsworn responsive
brief, squarely raising the constitutional
ity of the order and the district court’s
au thority to issue it. Judge Fisher con
ducted a hearing on June id and alloai.d
tim e for additional briefs. With their
next brief plaintiffs filet! affidavits by
Thibodeaux, Morrison and Goldstein, cov
ering several points. Thilxxieaux denied
th a t he advised [xitcntial class members
not to accept Gulf’s offer o f settlem ent
and denied th a t he stated th a t p la in tiffs’
counsel could ge t employees twice as
much back pay by suit. According to
the affidavits, none of the lawyers ac
cepted or exjveeted compensation from
the mimed plaintiffs or any additional
named plaintiffs or from memiiers of the
class; the only an ticipated comi>ensaLion
was by a tto rneys’ fees aw arded by the
court aga inst the defendants, and in the
case of the LDF attorneys any fees
aw arded them would lie paid over to
LDF. The affidavits also set out th a t it
was necessary for plaintiffs and the ir
counsel to com m unicate with members of
the proposed class to investigate system
atic and individual racial discrim ination,
complete discovery, and define issues in
the case, and tha t, tiecause of the back
pav offers made by Gulf under the con
ciliation agreem ent, it was of crucial im-
(lortance th a t p la in tiffs’ attorneys be
able to inform class members of their
rights and answ er their questions and
concerns. In their brief, p lain tiffs as
serted th a t many of the issues (specify
ing several of them) encompassed by the
suit were not included within the m at
ters covered by the conciliation agree
ment.
On June 22, w ithout requiring Gulf to
verify its changes of im proper and un
ethical conduct by Thilxxieaux. and w ith
out m aking findings of fact, Judge Fish
e r entered the modified order. He re-
rr
BERNARD v. GlILF OIL CO. 5523
jected p lain tiffs ' contention th a t the or
der was constitutionally invalid.
I tu rn to the contents of the modified
order. Its o w n in g language is plenary
in form. 1 discuss l>eiow the exceptions
th a t appear fu rthe r on in the order.
The persons enjoined are "all parties
hereto and their counsel.” 5
The subject m atte r forbidden is com
munications "concerning [thisj action
w ithout the consent and ap
proval of the proposed communication
and proposed addressees by order o f this
court.” More specific communications
which the proscription includes, but is
not limited to, are: (a) solicitation of
legal representation of potential and. ac
tual class meml>ors not formal parties;
(b) solicitation of fees and exjienses; (c)
solicitation of requests by class members
to opt out; (d) “communications from
counsel or a party which may tend to
m isrepresent the status, purposes and ef
fects of the class action, and of any actu
al or potential Court orders therein
which may create impressions tending,
w ithout cause, to reflect adversely on
any party , any counsel, this Court, or the
adm inistration of justice.”
The means of communication forbid
den are “directly or indirectly, orally or
in w riting .”
The persons with whom communica
tion is forbidden are potential ami actual
class members.
The second subparagraph of c (2) sets
out exceptions as provided in the Munu-
ar s suggested form; communications be-
3. The m ajority refe r several tim es to the o r
d er’s restricting com m unication by the p a r tie s .
Elsew here they refer to the in terests of p la tn -
tween atto rney and client, ami atto rney
anti prospective client when initiated by
the prosjiective client, and communica
tions in the regular cour-e of business.
Tile third subparagraph of *1 (2; i,i the
“constitutional rig h t” exception:
If any party or counsel for a party
asserts a constitutional righ t to com
m unicate with any m em ber of the
class w ithout prior restra in t and does
so communicate pursuan t to th a t as
serted right, he shall within five days
a fte r such communication file with the
Court a copy of such communication, if
in w riting, or an accurate and substan
tially complete sum m ary of the com
munication if oral.
In the modified order Judge Fisher
added to the- M anual's proposed form a
provision that- the clerk mail a notice to
employees covered by the conciliation
agreem ent s ta tin g th a t they had 45 days
in which to accept Gulf's o ffer and th a t
all who delivered receipts and releases
within 55 days would lie deemed to have
accepted. See 1 (4) and % (9) of the or
der. In *1 (8) the court restated the re
strain ts on communication th a t it had
imposed in the earlier p art of the order.
On Ju ly 6, pursuant to the “constitu
tional rig h t” exception, plaintiffs moved
for permission for themselves and their
counsel to com municate with members of
the projiosed class. They attached the
following notice which they proposed to
d istribute and asserted th a t they were
constitutionally entitled to d istribute it:
t i f f s ' a t to r n e y s in com m unicating with putative
class m em bers. The order bars both nam ed
parties and counsel.
5524 BERNARD v. GUI ' OIL CO.
» p v e r y i m p o r t a n t c i v i l r i g h t s . I t i s i m p o r t a n t t h a t y c u f u l l y u n d u e-s ta n d
w h a t y o u a r e g e t t i n g an r e t u r n f a r t h e r e l e a s e . _IT t s _ IMFORTAliT m il* v c t i ta.LJ
TO A, LA.O: - ri 3 -.-0?.c. YCV S .G tr . T h e s e l a w y e r s w i l l tn l f c t o y o u FOP F?EE :
STELLA M. HOREISOtJ
4 4 0 Aar.C i n A v e n u e
Room S16
P o r e A r t h u r , T e x a s 7 7 6 4 0
( 7 1 3 ) 9 0 5 - 9 3 5 9
BAP.RY L. GO LX37EIM
Ul y s s e s g e n e t h is c o e a u x
1 0 C o l u s b u s C i r c L e
S u i t e 2 0 3 0
New Y o r k . New York 1 00L 9
( 2 1 2 ) 5 6 6 - 8 3 9 7
CHARLES E. COTTTN
3 4 8 B a r c n n e S t r e e t
S u i t e 5 0 0
New O r l e a n s , L o u i s i a n a 7 0 1 1 2
( 5 0 4 ) 5 2 2 - 2 1 3 3
T h e s e l a w y e r s r e p r e s e n t s i x o f y o u r f e l l o w w o r k e r s i n a l a w s u i t t i t l e d
B e r n a r d v . G u l f . O i l C o . , w h i c h w a s f i l e d i n B ea u m o n t F e d e r a l C o u r t on b e h a l f
o f a l l o f y o u . T h i s s u i t s e e k s t o c o r r e c t f u l l y t h e a l l e g e d d i s c r i m i n a t o r y
p r a c t i c e s o f G u L f .
Even i f y o u h a v e a l r e a d y s i g n e d t h e r e l e a s e , t a l k t o a l a w y e r . You may
c o n s u l t a n o t h e r a t t o r n e y . I f n e c e s s a r y , h a v e h im c o n t a c t t h e above-named
l a w y e r s f o r m o re d e t a i l s . ALL d i s c u s s i o n s w i l l b e k e p t s t r i c t l y c o n f i d e n t i a l .
ACAIN, IT I S IMPORTANT THAT YOU TALK TO A LAWYER. W h a t e v e r y o u r d e c i s i o n
n i g h t b e . w e w i l l c o n t i n u e t o v i g o r o u s l y p r o s e c u t e t h i s l a w s u i t In o r d e r t o
c o r r e c t a l l t h e a l l e g e d d i s c r i m i n a t o r y p r a c t i c e s a t G u l f O i l .
Plain tiffs alleged in their motion th a t
neither Gulf’s o ffer to employees nor the
notice sent by the clerk explained the
term s of the conciliation agreem ent.
They asked the court to declare th a l the
notice Wits constitutionally protected.
They noted th a t under the “constitu tion
al r ig h t” exception to the order they
were entitled to d istribu te the notice and
file it with the court within five days
BERNARD v. ( r 'L F Oil. CO. 5525
thereafte r. However, Ihjeati.se of what
they considered to be the vagueness of
the order, and “for reasons of prudence,"
the plaintiffs asked for the court’s guid
ance. Their reasons for asking guidance
w ere not unreasonable. The firs t sul>-
paragraph of * (2) of the order required
th a t any proposed com munication lie
presented in w riting for prior approval.
P aragraph (3) resta ted all the restraints.
The “constitutional r ig h t” exception a[v-
peared to perm it retrospective filing in
place of prior court approval. But coun
sel already charged with unethical and
illegal conduct cannot be faulted for
electing not to gam ble on the ir in terpre
ta tion of the order or upon the possibili
ty th a t if they sent the notice w ithout
preclearance the court m ight find it not
constitutionally protected and their as
sertion of constitutional protection not
made in good faith.8 As it turned out,
th e ir prudence was justified because the
court ultim ately denied permission to
send the notice.
The request for guidance from the
court, filed .July 6, was appropriate and
respectful, and it deserved timely court
action. To be effective the notice th a t
p la in tiffs proposer! to send needed to lie
d istributed promptly. The 45 days for
acceptance of Gulf’s offer, descrilied in
the Clerk’s notice, expired on or about
A ugust 8. The court did not act on
p la in tiffs’ motion until A ugust 10, when
it denied the motion by a one-sentence
order w ithout explanation.
S. S ee R o d a e r s v. U n ite d S ta t e s S te e l . 508 F.2d
152. 161 (CA5), c e n . d e n ie d . 420 U.S. 969. 95
S.Ct. 1386, 43 L.Ed.2d 649 (1975): "The a tto r
neys for the plaintiffs, with ap p ropria te cau
tion, declined to test an am biguous o rder by
violating it and risking con tem pt."
7. The d is tn e t court had not adopted a local
rule concerning limiting com m unications in
class actions. We are. therefore, not con
cerned w ith rule-m aking pow er but with Ihe
II. Misuse o f discretion
I Ifelieve th a t the court misused its
discretion in en tering the orders in this
case.7
(1.) Non-compliance with Rule -ZMd)
Rule 23(d) gives the following au thori
ty to the court:
In the conduct of actions to which this
rule applies, the court may make ap
propria te orders: (3) impos
ing conditions on the representative
parties. (Em phasis added.)
This provision, added in 196(5, gives the
trial court “extensive power” to control
the conduct of a class action. 7A C.
W right & A. Miller, Federal Practice and
Procedure § 1791 (1972). There 'will l>e
situations in which it will lie “appropri
a te" for the court to restrict communica
tions between counsel and potential class
members. But, however, broad “appro
p ria te” may be it is certainly no broader
than the limits imjiosed by the Constitu
tion, as discussed in Bart III, below.
P re term ittin g constitutional limits, it
seems to me th a t the d istrict court must
find th a t restrictions are “appropriate"
upon a factual showing by the moving
party th a t unsujxjrvised communications
lietween counsel and named plaintiffs on
one hand and jw tential class mem!>ers on
the other have materialized into actual
abuses of the class action device or th a t
abuses are im m inently threatened." In
au thority of the court, inherent o r conferred by
C ongress through the Rules, to im pose the Inn-
it on com m unications. The M a n u a l. Pt. 2.
§ 1.41. con tains a suggested local rule, an e a r
lier version of which w as held invalid in Rodg
ers v. U n ite d S ta t e s S te e l , su p ra .
8. The Third Circuit in C o le s v. M a r sh . 560 F 2d
186, ISO (CA3). c e r t, d e n ie d . 434 U.S. 983. 08
S.Ct. 611, 54 L.Ed.2d 479 (1977), discussed the
validity of a sim ilar o rder restrain ing commit-
552S BERNARD v. G U I’ OIL CO.
this case, “appropriateness” was not
proved and no finding' of “appropriate
ness” was made by either d istric t judge.
The only arguable grounds I iJerceive
for the order’s Ijeing “appropriate" are
the unsworn sta tem en ts by Gulf th a t
w ere denied by plain tiffs ' a tto rney under
oath, the discussions in the Manual of
possible abuses of class actions, and the
existence of the conciliation agreem ent
in the process of implem entation.
W ith respect to the presence of plain
tiffs ’ counsel a t the m eeting of employ
ees, it seems to me singularly inappropri
ate for the district court to rely—if it
did rely— u[>on Gulf's representations
th a t Thibodeaux made s ta tem en ts which
violated lioth the taw and the Canons of
Ethics. Gulf never presented proof of
this hearsay. Under oath, Thibodeaux
denied m aking such sta tem en ts.5
N or should a judicial decision on “a[>-
propriateness” be rested uj>on the discus
sions in the Manual. W ith deference to
the opinions of the distinguished Board
nicalions in term s of th e d istrict co u rt 's pow er
and held it invalid. A lthough I reach the sam e
resu lt as the C o le s court. I think it is prefe ra
ble to analyze the question in term s of the
distric t cou rt's discretion.
9. In this appeal Gulf resta tes the hearsay as
though it w ere fact proved and found. Also it
th row s in this alternative argum ent:
By affidavit, one of the A ppellants' atto rneys
adm its to attending the d iscussions, but de
nies m aking any im proper sta tem ents.
W hether the sta tem ents, in fact, are true is
im m aterial since the adm itted appearance by
A ppellants' atto rneys a t such a m eeting pro
vides the potential for abuse of the class
action process which the M anual and Rule
23 seeks to prevent.
Br p. 42. Counsel for Gulf trea t m ore lightly
charging an attorney with unethical and im
p roper conduct than I would be willing to do.
10. The M a n u a l cites W eight W a tc h e r s o f P h il
a d e lp h ia v. W e ig h t W a tc h e r s In te r n a tio n a l .
In c .. 455 F.2d 770 (CA2, 1972). as confirm ing
an "almost unreview able d isc retion” in trial
of Editors concerning the possibility of
abuses in class actions, a trial court
should not merely presume th a t in the
case before it—indeed in all class actions
coming liefore it—abuses are i itb. r
present or threatened.
The order in this case was entered
pursuant to the authority given the dis
tric t court under Rule 23(d). That rule
rcnuires the d istric t judge to exercise his
discretion in m aking orders. He is only-
authorized to make “appropriate orders,”
and a determ ination of w hat is appropri
a te requires the exercise of discretion.
W hat is appropriate for one case is inap
propriate in another. If communications
Ix-lween counsel and actual and potential
memiiers of a class action were always
abusive of the class action device then it
would lie appropriate to autom atically
en ter an order restric ting communica
tions. Such communications, however, in
many instances serve to e ffec tuate the
“purjxises of Rule 23 by encouraging
common participation in [a lawsuit]."
courts to regulate com m unications betw een
counsel and active and potential class m em
bers. W e ig h t W a tc h e r * rests upon the unre-
vicw ability of d iscretionary o rders by m anda
mus. The issue is before us by appeal. In
R o d g e r s . the Third Circuit said:
[T]he com m ittee which drafted the M a n u a l
probably w ent too far in its apparen t a s
sum ption that C ra ig v H a rn e y , [supra, 331
U.S. 367. [67 S.Ct. 1249,] 91 L.£d. 1546
(1947)] and B r id g e s v. C a lifo r n ia , [supra. 314
U.S. 252, [62 S Ct. 190.] 86 L.Ed. 192 (1941)]
would perm it the vesting of unreview able
discretion in a distric t court to im pose a pri
or re s tra in t on com m unication or associa
tion. 1 J. Moore, [supra. Federal Practice
" 1.41. a t 29 n. 28. (2d ed. 1974. P art 2)1.
508 F 2d a t 165. R o d g e r s g ran ted m andam us
against use of a local rule then appearing in
the M a n u a l and since am ended. I d iscuss in
Part III, below, the constitu tional lim itations
im posed by C ra ig v. H a m e v and B r id g e s v.
C a lifo rn ia .
BERNARD v. GUL: OIL CO. 5527
Coles v. Marsh, supra a t 189. The deci
sion w hether to restric t communications
in a particu lar case, therefore, requires
an inquiry into the likelihood of abuse
and the |>otential for tienefiLs. The
M anual's general discussion of |x>tcntiul
abuses flowing from unrestrained com
m unications is no substitu te for reasoned
inquiry into the harms and benefits on
the particu lar facts of each case. The
rule requires no less.11 Here, a t the ap
pellate level, the m ajority grounds its
decision on possibilities ra th e r than actu
alities. I t refers to w hat the parties
“may do,” to w hat the trial judge “could
have easily concluded,” how the order
“could be helpful” to the judge in exer
cising his Rule 23 duties, to w hat the
judge “m ay believe" and of how commu
nications “may mislead.” This is not the
s tu f f of which judicial decisions are
made.
The final potential justifica tion for the
cou rt’s order is the strong emphasis upon
se ttlem en t of T itle VII disputes by con
ciliation ra th e r than in the courtroom.
U. S. v. A llegheny-Ludlum Industries,
Inc., 517 F.2d 826, 846 (CA5, 1975). But,
as we noted in Allegheny-Ludlum ,
I I . In W a ld o v. L a k e s h o r e E s ta te s . In c .. 430
F.Supp. 782 (E.D.La.. 1977). th e distric t court
re jec ted the claim that it exceeded its rule-
m aking au tho rity under Rule 33 by adopting
its Local Rule 2.12(e), identical to the M a n u
a l ’s suggested Rule. The court concluded th a t
" t t jh e potential abuses a tten d an t upon
unregulated com m unication clearly underm ine
the efficacy of the class action device." Id. at
794. The local rule was, therefore, consistent
w ith the Federal Rules of Civil Procedure, the
stan d ard for judging the validity of a local
rule. The difficulty with the d istric t court's
analysis is th a t Rule 2.12(e) applies to every
case. It does not permit the d istric t judge in
an individual case the discretion to not restrict
com m unications, although in som e ra ses it
w ould be inconsistent w ith th e policies of the
Federal Rules to restrict com m unication. A
the “ final responsibility for enforce
m ent of T itle VII is vested with feder
al courts,” |T]hc various le
gal remedies for employment, discrim i
nation are cum ulative and complemen
tary. From the g rievan t’s standpoint,
“[ujntler some circumstances, the ad
m inistrative route may lie highly pre
ferred over the litigatory; under o th
ers the reverse may lie true .”
Id. a t 848 & n.2f> (quoting Alexander r.
G nnlner-D envcr Co., 415 U.S. 36. 44 , 94
S.Ct. 1011, 1017, 39 L.Fid.2d 147. 156
(1974), and Johnson v. Railw ay Exfiress
Agency, Inc., 421 U.S. 454, 461, 95 S.Ct.
1716, *1720, 44 L.E<1.2d 295, 302 (1975)).
In Rotlriguez v. East Texas M olar
Freight, 505 F.2d 40 (CAS, 1974), vacated
on other grounds, 431 U.S; 395, 97 S.Ct.
1891, 52 L.Ed.2d 453 (1977), we com
mented on the possible divergence of
governm ental in terests in rem edying em
ploym ent discrim ination and the in te r
ests of the individuals who were the vic
tims of discrimination:
While the G overnm ent may be willing
to compromise in order to gain
prom pt, and perhaps nationwide, re
lief, private plaintiffs, more concerned
with full compensation for class mem-
refined approach that does not sw eep so
broadly that it does aw ay with the benefits of
attom ev-ciien t contact and recognizes the in
terests th a t putative class m em bers have in
receiving com m unications, is called for. The
need for such an approach w as recognized by
D istrict Judge Bue in his report accom panying
the Southern D istrict of Texas' am endm ents to
its local ru le restricting com m unications, dis
cussed in fr a . Judge Bue's discussion focuses
prim arily on constitu tional problem s with the
M a n u a l 's rule. A sim ilar need for a narrow
rule that successfully guards against abuses
while not doing aw ay with the benefits of
com m unication is also required so th a t it does
not run afoul of Rule 83's m andate that d istrict
courts adopt only local rules that are co n sist
ent with i he policies of the Federal Rules.
5528 BERNARD v. G" LF OIL CO.
bers, may be willing: to hold out for
full restitution.
Id. a t 66. The choice between the law
suit and accepting Gulf's back pay offer
and giving a jjenen.il release w;is for
each black employee to make. The court
could not make it for him, nor should it
fre igh t his choice with restrictions th a t
were not “appropriate” under the cir
cumstances. Gulf had represented to the
court th a t the conciliation agreem ent
was fair and em braced substantially the
same issues as the suit. But p la in tiffs’
counsel had represented th a t the concil
iation agreem ent was seriously deficient;
th a t on its face it neither made the black
employees whole nor satisfied the dic
ta tes of Title VII; tn a t tne relief suj>-
plied was inadequate because the goals
were statistically improper, there was no
firm com m itm ent to tim etables, and
there was no relief from illegal testing.
P lain tiffs had sot out o ther objections as
well. According to plaintiffs, the notices
sen t out by Gulf did not even explain
how back pay was computed.
The conclusion is inescapable th a t the
cou rt’s lim itation on com munications was
intended to fu rth e r em ployees’ accepting
conciliation aw ards in preference to par
ticipating in the suit.12 P re term itting
w hether a court can ever appropriately
do this, in this instance it could not, in
deciding “appropriateness,” elect to fa
vor conciliation and fru s tra te or chill the
righ t of black employees to choose the
litigation route by cu tting them off from
talk ing with the named plain tiffs and
with the only attorneys who had direct
expertise about the suit.
The m ajority has failed to take into
consideration the benefits flowing from
/•
12- If not o therw ise clear, the c o u rt’s approach
w as m ade clear by Its direct en try into the
conciliation effort (discussed below), and us
w ithholding action on p lain tiffs’ request for
communication between the parties and
the potential class members. In racial
discrim ination cases group solidarity may
be vital to trigger and to sustain the
willingness to resort to !• ...........
for the removal of dist rim ination, but
the court order bars black p laintiffs
from all communication with fellow
blacks employed by Gulf concerning this
case. The m ajority also does not give
weight to the need and desire of poten
tial class memliers for advice of counsel
concerning hack pay versus lawsuit-
The order perm its a potential class mem
ber to confer with attorneys for plain
tiffs a t the prosjieetivh class m em ber’s
request. Pragm atically this is a dubious
exception. A pmsjiective chess m em ber
m ust find out who the attorneys are and
when and where to see them , but the
actual class members are forbidden to
give him this inform ation— or any other
inform ation aliout the case— w ithout pri
or court approval, nor can counsel fu r
nish this inform ation to potential class
members generally.
The wide d isparity ixttween w hat was
done here and normal judicial procedures
is dem onstrated by posing this question;
“W hat would have hapjiened if Gulf hail
asked for a temjKirary injunction imjxis-
ing the exact restrictions th a t were im-
jxised in this case?” [ believe th a t the
court would have insisted ujion require
m ents of notice, tim e limits, proof of
likelihood of harm , the public in terest
and sim ilar fam iliar requirem ents, and
this court would have reviewed an in
junction under the usual standards, espe-.
cially since constitutional rights are in
volved.
(>ermjssion to send th*» proposed notice until
after the tim e had expired for accepting bark
pay aw ards.
5529BERNARD
The lim itations I s u r e s t do not dim in
ish the significance of the |x>tonlial proli-
lems seen by the draftsm en of the Munu-
ul and liy the m ajority here. 1 would
simply re(|uire a showing th a t I lie prol>-
lems are real and not imaginary.
To the ex ten t the m ajority liases its
approval of the lower court's orders on
the premise th a t it is always appropriate
to restric t communications in class ac
tions, th a t premise is peculiarly unfound
ed in this case. The counsel silenced
w ithout tactual show ing include those
from the Legal Defense Fund, recog
nized by the Suprem e Court as having “a
corporate reputation for expertness in
p resenting and argu ing the difficult
questions of law th a t frequently arise in
civil rights litigation." N A A C I' v. Hut
ton, 371 U.S. 415 a t 422, 83 S.Ct. 328 a t
332, 9 L.Ed.2d 405 a t 411-12 (1903). anti
engaged in “a d iffe ren t m a tte r from the
oppressive, malicious or avaricious use of
the legal process for purely private
gain ." Id. a t 443, 83 S.Ct. at 343, 9
L.Ed.2d a t 42-1. See a/.so Miller v.
A m usem ent Enterjiriscs, Inc., I2(i F.2d
534, 539 n.4 (CA5, 1970).
f— Court involvem ent in conciliatitm
A part from the o rd er’s limit on com
munications, it inappropriately involved
the court in the extra-judicial concilia
tion effort. Gulf had mailed out hack
pay offers liefore suit was filed. In its
motion to modify Judge S ieger's order.
Gulf asked the court to direct the clerk
to sent I notices to all employees who had
not accepted its o ffer and signed releas
es. G u lfs theory was th a t the court
could do this under its power to super
vise a settlem ent. The court granted
the motion and extended the tim e for
acceptance to 55 days from the date of
the clerk s notice. The hack pay offers
w ere not offers to se ttle a lawsuit. The
GULF OIL CO.
nudge given to hlack employees who had
not accepted Gulf s offer, given under
the official im prim atur of the . ,l:, t
not fiermissihle.
I would hold tha t the order was im-
providently entered under the term s of
Rule 23(d). Perhaps Rule 23(d) merely
resta tes an implied power of the court.
If tha t is so, exercise of the power is
limited hy the .sam e restra in ts on the
cou rt’s discretion Unit I have already dis
cussed. I turn then to constitutional
lim itations.
III. The constitutionnl issues
The general rule is th a t otherw ise pro
tected u tterances concerning the courts
may lie punished hy contem pt only if
they jwise "an imminent, not merely a
likely th rea t to the adm inistration of jus
tice." Crnifr Harney. 331 U.S. 367,
376, 67 S.Ct. 1219. 1255. 91 L.Ed. 1546,'
lo52 (1947). The likelihood must lie
g rea t th a t a serious evil will result, and
the evil itself must lie substantial.
Bridtres v. California. 311 U.S. 252, 260-
63, 62 S.Ct. 190, 192 94, 86 L.Ed. 192,
202-03 (1941). Significantly, it is these
two cases to which the M anual turns in
addressing constitutional lim itations. Ft.
2, § 141, n.33. Nor does the constitution
al rule change when applied to law-ycrs,
even when they participate in the ju d i
cial process. In re Halkin. — U.S.App.
DC. — , . . . . F.2d ------, 47 Cr.L-Rep.
2413 (D.C.Cir., Jan . 19, 1979). A law
y er’s F irst Amendm ent rights to com
ment about [lending or im m inent litiga
tion can he proscribed only if his com
ments jiose a “ ‘serious and im m inent
th r e a t '” of interference with the fair ad
m inistration of justice.” (Vi/cage Coun
cil o f Lawyers v. Hauer, 522 F.2I 212,
249 (CA7, 1975), cert, denied, 427 U.S
912. 96 S.Ct. .3201. 49 L.Ed.21 1204 (1976)
(quoting In re Oliver, 452 F.2I 111 (CA7,
5530 BERNARD v. GI ' F OIL CO.
1971)); accord, Chase v. Robson. 4:if) F.2d
1059. 1061 (CAT. 1970); cf. U. S. v. Tijer
ina, 412 F.2d 661. 666 (CA10), cert, de
nied, 396 U.S. 990, 90 S.CL 478, 21
L.Ed.2d 452 (1969) (reasonable likelihorxl
th a t com ments by crim inal defendants
will prevent a fair trial ju stifies court
order prohibiting extrajudicial com
ments).
In this case the subject m a tte r o f the
restra in t on counsel's righ t to talk with
potential class members about the case is
plenary'. The restra in t is not limited to
prohibiting solicitation of potential
clients, discussed below. The attorneys
may not counsel a black employee free
of any e ffo rt to solicit him. The Third
Circuit, in Rodgers, in holding invalid a
focal rule th a t contained a sim ilar prohi
bition on communications Instwccn coun
sel and potential class mcml>ers 15 did not
reach the constitutional issue but noted
the problem:
The imposition of such a condition
upon access to the Rule 23 procedural
device certainly raises serious first
am endm ent issues. See New Jersey
S ta te L o ttery Comm'n v. United
States, 491 F.2d 219 (3d Cir.), cert,
g ranted , 417 U.S. 907, 94 S.Ct. 2603, 41
L.Ed.2d 211 (1974). Then: is no ques
tion but th a t im portant sjjeech and as-
sociationa! rights are involved in this
e ffo rt by the NAACP Legal Defense
and Education Fund, Inc. to communi
cate with ]>otential black class mem
bers on whose behalf they seek to liti
gate issues of racial discrimination.
See, e. g.. United Transfiortation Un
ion v. S ta te Bar, 401 U.S. 576, 91 S.Ct.
1076, 28 L.Ed.2d 339 (1971); N A A C P
v. Button, 371 U.S. 415, 83 S.Ct. 328. 9
L.Ed.2d 405 (1963). And the in terest
13. The local rule in issue in R o d g e r s did not
include the "constitu tional righ t" exception
w hich has been added to the suggested form in
of the judiciary in the proper adm inis
tration of justice does not authorize
any blanket exception to the first
am endm ent. See Wood v. Georgia,
370 U.S. 375. 82 S.CL 1.161. 8 L.Kd.2d
569 (1962); Craig v. Harney, 331 U.S.
367. 67 S.Ct. 1249, 91 L.Ed. 1546
(1947); Pennekam p e. Florida, 328
U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295
(1946); Bridges v. California, 314 U.S.
252. 62 S.Ct. 190, 86 L.Ed. 192 (1941).
W hatever may lie the lim its of a
court’s powers in this respect, it seems
clear th a t they diminish in s treng th as
the expressions and associations sought
to lie controlled move from the court
room to the outside world. See T.
Emerson, The System of Freedom of
Expression 449 e t seq. (1970).
508 F.2d a t 162-63.
N ext I tu rn from the general restra in t
on the alto rney to the s[>ccific restriction
against solicitation in subparagraph (a)
of * 2 of the order: “[Sjolicitation d irect
ly or indirectly of legal representation of
potential and actual class members who
are not formal parties to the class ac
tion.” N A A C P v. Button, 371 U.S. 415,
83 S.Ct. 328, 9 L. Ed .2*1 405 (1963), and its
progeny. In re Primus, 436 U.S. 412, 98
S.CL 1893, 56 L.E*i.2d 417 (1978), United
Transjx>rtution Union v. S ta te Bar o f
Michigan, 401 U.S. 576, 91 S.Ct. 1076, 28
L.Ed.2d 339 (1971). United Mine Workers
v. Illinois Bar Ass ’n, 389 U.S. 217, 88
S.CL 353, 19 L.Ed.2d 426 (1967), and
Raiim ad Trainmen v. Virginia S ta te Bar,
377 U.S. 1, 84 S.CL 1113. 12 L.Ed.2d 89
(1964), m andate the conclusion th a t sulv-^
paragraph (a) is unconstitutional. In
Button. the Court concluded th a t
NAACP solicitation of persons to bring
the M .m u a l. I d iscuss below (hat this does not
rem ove the constitu tional issue.
IIE1LNAUI) g u l f OIL CO.
civil rights suits was protected activity
under the F irst and Fourteenth am end
ments. 371 U.S. at 428-29, .83 S.Ct. a t
333, 9 L.F!d.2d a t 415.u The solicitation
was treated as a mode of political ex
pression effectuated through group ac
tiv ity falling within the sphere of associ-
ational rights guaranteed liy the F irst
Am endm ent. The solicitation activities
considered in B utton included holding
m eetings to explain legal steps needed to
achieve desegregation. A t these m eet
ings forms were circulated which autho
rized LDF attorneys " to represen t the
signers in legal proceedings to achieve
desegregation.” 371 U.S. a t 421, 83 S Ct
a t 332, 9 L.Ed.2d at. 111.
In view of Gulf’s s ta tem en ts to the
trial court and the countering affidavit
by plaintiffs attorney, we do not know
w hether there has been express solicita
tion in this case sim ilar to the distribu
tion of forms in Button.'* W hether
plaintiffs atto rneys' a ttendance a t the
m eeting was solicitation is not determ i
native. Here, as in Button, the subject
m a tte r is racial discrim ination. Plain
tiffs attorneys arc already engaged on
behalf of black employees in seeking to
vindicate the ir civil rights through court
action, while in B utton they were seek
ing clients to begin a suit. In both cases
the activities a t issue are those of. LDF
lawyers. The only m aterial difference is
th a t here employees m ust choose I**-
tw een the lawsuit and a conciliation of-
14. Because this case involves a restriction im
posed by a federal court, the Fourteenth
A m endm ent is not im plicated.
15. The notice th a t plaintiffs asked leave to
send does not explicitly solicit persons to en
gage p laintiffs' a tto rneys or to join in the class
but urges em ployees to seek legal advice and
to become informed. It tells em ployees that
plaintiffs a tto rneys will talk tn them 'without
charge, suggests as an a lternative talking to
som e o ther atto rney , and em phasizes th a t the
class action will proceed. No one is expresslv
5531
for while in Button there had lx_xm no
conciliation anti offer. The people a t
tending the m eetings held by the LDF
lawyers in Button, however, did have to
choose between in itialing a lawsuit and
not participating in a lawsuit. The tyjar
of choice the people would have to make
here and in Button is not so d iffe ren t
th a t the solicitation th a t could have oc
curred in this case was outside the scope
of activity protected by Button. The
characteristics of the solicitation tha t
brought it within constitutional protec
tion in B utton are equally present in this
case.
The continued vitality of B utton was
recently affirm ed by the Suprem e Court
in In rc Primus, supra. There the Court
reversed a disciplinary reprim and issued
against an ACLU lawyer for solicitation,
436 U.S. a t 419. 98 S.Ct. a t 1899, 56
L.Ed.2d a t 427. The Court considered
the economic relationship lietween the
lawyer and the person solicited, the pur
pose of the litigation and the jnissibility
of a conflict of in terest between counsel
and prosj>ective clienl. Because the law
yer had no direct financial stake in the
case, the case was a means of expressing
a political lielief, and there was no evi
dence of overreaching or m isrepresenta
tion, the C ourt concluded th a t South
Carolina’s punishm ent of Primus for so
licitation violated her First Am endm ent
righ ts.1*
urged to join the class, reject a release, or
retu rn a check.
16. O h r n l ik r. O h io S t a t e l ia r A s s n . 4.1G U«S
447. 98 S.Ct. 1912. 5ti L.t;d.2d 444 (I07H). de
cided the sam e day as P r im u s , sustained,
against constitu tional objections, b a r sanctions
ot an a tto rn ey for solicitation. For purely pe
cuniary gain he visited in the hospital a person
injured in an autom obile accident and solicited
her as a client. No political expression or as-
sociationai righ ts or vindication of illegal racial
5332 BERNAL') v. GULF OIL CO.
Because the activity prohibited by sul>-
paragraph (a) of the d istric t court’s or
der is constitutionally protected activity
it is necessary to consider w hether there
is a comiiclling governm ent in te rest th a t
justifies the prohibition and w hether the
means used are sufficiently s|>ecific ‘“ to
avoid unnecessary abridgm ent of nssocia-
tional freedom s.’ ” Id. 436 U.S. a t 132,
98 S.CL a t 1905, 56 L .E d 3 l a t 134-35
(quoting Buckley v. Valeo, 424 U.S. 1, 25,
96 S.Ct. 612, 637, 46 L.Ed.2d 659, 691
(1976)). The Primus Court recognized
th a t “the prevention of undue influence,
overreaching, m isrepresentation, invasion
of privacy conflict of in terest, [and] lay
in terference”. 436 U.S. a t 432. 98 S.Ct. a t
1905, 56 L.Ed.2d a t 435, are evils the
s ta te may guard against and th a t these
problems sometimes resu lt from lawyer
solicitation of clients. The Court w ent
on to sta te , however, th a t prophylactic
disenm inauon w as involved. Ohralik based
his constitu tional claim solely on the com m er
cial speech doctrine. See a ls o P a c e v. F lorida .
368 So.2d 340 (F la .Sup .1979); A d le r . B a n s h .
D a n ie ls . Levin & C r c s k o f f v. E p s te in . 393 A -2d
1175 (P enn .Sup .1978).
17. As sta ted by the fhamus C ourt
Rights of political expression and associa
tion m ay not he abridged because of sta te
in terests asserted by appellate counsel w ith
out substan tial support in th e record or find
ings of the s ta te court. See F irs t N a tio n a l
B a n k o f B o s to n v. B e llo tt i . 435 U.S. 765. 789.
98 S.CL 1407. (1423.J 55 L.F.d.2d 707 (1978);
U n ite d T r a n s p o r ta t io n U n io n v. M ic h ig a n
B ar. 401 U.S., at 581, 91 S.Ct. 1076 [. at
1080) 28 L.Ed.2d 339; S h e r h e r t v. Vemer,
374 U.S. 398. 407, 83 S.Ct. 1790. [1795.1 10
I-.Ed.2d 965 (1963); B u t to n . 371 U.S. a t 442-
443. 83 S.CL 328 [. a t 342 343], 9. L.Ed.2d
405; W o o d v. G e o rg ia . 370 U.S. 375. 388, 82
S.Ct. 1364, [1371,| 8 L.Ed.2d 509 (1962);
T h o m a s v. C o llin s . 323 U.S. 516, 530. 53G, 65
S.Ct. 315 [322. 325,1 89 I.E d . 430 (1945).
436 U.S. a t 434 n. 27, 98 S.CL a t 1906 n. 27. 56
l_£d.2d a t 436 n. 27
18. S ubparagraph (b) of " 2 of tile o rder forbids
solicitation of fees and expenses despite the
affidavit setting out th a t the NAACP provides
rules intended to guard against such
evils are not permissible when aimed
against constitutionally protected forms
of solicitation liecause of their impact on
F irst Amendmenl rights. hi. When
dealing witli B utton -lyi*s solicitation, as
opjHised to commercial form s of solicita
tion, see Ohnilik v. Ohio S ta te Bar Asso
ciation. 436 U.S. 447, 98 S.Ct. 1912, 56
L.Ed.2d 444 (1978), discussed in note 16,
supra, there must l>e a showing th a t the
solicitation “ in fact involved the tyqxj of
misconduct” 56 L.Ed.2d a t 436, th a t may
be constitutionally guarded against. A
showing of potential danger does not
suffice.17 The lower court made no find
ings w hether the substantive evils the
court was constitutionally entitled to
guard against had occurred. W ithout
such findings subparagraph (a) of the
order cannot stand .1*
its services free of charge. A rguably th is hy
pothetical restrain t does no injury except to
the exten t it adds to the overall chilling effecL
However, I think it Is ap p ropria te to com m ent
on it since it is part of the M a n u a l s form. In
U n ite d T r a n s p o r ta t io n U n io n v. S ta t e B a r o f
M ic h ig a n , s u p ra , the Suprem e C ourt in te rp re t
ed B u t to n and cases follow ing it to stand for
the proposition that "collective activity under
taken to obtain m eaningful access to the
courts is a fundam ental right w ithin the pro
tection of the First A m endm ent." Id. 401 U.S
at 585, 91 S.CL a t 1082. 28 L.Ed.2d at .347. In
at least som e situations the collection or solici
tation of funds to defray litigation costs is a
necessary adjunct to obtaining m eaningful ac
cess to the courts. I would, therefore, give
such activity constitu tional protection in ap
propriate cases. The degree of protection
would vary according to the use to which the
funds are to be put. If they are to be used to
pay law yers, the solicitation p resen t? som e of
the dangers recognized in P n m u s and O h r a l ik
th a t a sta te or court m ay properly guard
against. If the funds are to be used to defray
litigation expenses, the solicitation is closer to
the heart of gam ing access to the courts. S e e
N o r r is v. C o lo n ia l C o m m e r c ia l C o rp ., 77 F.R.D.
672, 673 (S.D.Oiiio, 1977) (solicitation of funds
B E R N A R D v. ( , : ! . r O IL CO. r,r,n:i
Subparagraph (d) of 1 2 is applicable
to this case and is in my view facially
unconstitutional. It is narrow er than
the plenary proscription in the first sen
tence oi the order, which prohibits all
communications concerning the suit.
Subparagraph (d) prohibits w hat might
be called “objectionable communica
tions. It prohibits all communications
“ which m ay lend to m isrepresent [the
class action] and
which may create impressions tending,
w ithout cause to reflect adversely on any
party , any counsel, this Court or the ad
m inistration of justice .” ( Emphasis add
ed.) Tile order is overbroad because it is
not limited to the clear and present dan
g er test. “May tend to m isrepresent,"
and “may create impressions" are not
enough to ju stify suppression of protect
ed speech. See Chicago Council o f Law
ye rs v. Bauer, supra a t 2-19. Also, while
speech th a t poses an im m inent th rea t to
the fa ir adm inistration of justice may lie
properly prohibited, sjicech tha t reflects
adversely on any party or counsel may
not. The only interests to which the
F irs t Am endm ent may lie subordinated
are compelling governm ent interests.
The governm ent has no com |ielling in te r
est in assuring th a t nothing un fla ttering
will he said about Gulf or its attorneys.
I t seems to me unnecessary to dwell at
length on the vagueness of the order,
particularly subparagraph (d). In advis
ing a [xitential class m em ber of the rela
tive merits of class action versus back
pay offered under the conciliation award,
counsel will almost inevitably sav some-
to defray litiuatinn expenses of c lass action
perm itted w ith certain requ irem ents im posed
on the content of the solicitation letter). See
a ls o S a y r e v. A b r a h a m L in c o ln Federal S av
ings & L o a n A s s n . A3 F.R.D 379. 384 «6 (F..D.
Penn.. 1074). modified, tin F.R.D. 117 (1073).
S ubparagraph ic) of •' 2. relating (o solicita
tion of "op t ou t" requests, s te m s to me to
tiling th a t will lx- construed to reflect
upon Gulf’s o ffe r—indeed th a t is a t the
heart of this whole m atte r of lawsuit
versus settlem ent. If n w n I goes to ur.
employees' m eeting at all,” the only ,ai,.-
advice to him is to remain mule.
In a thoughtful analysis of the consti
tutional issues involved in this case. Dis
tric t Judge Boyle, m IVa/i/o c. Lakcnhorv
/‘-states, Inc., U’dS F.Supp. 7X2 (E.D.La.,
1977), rejected a constitutional attack on
his d istrict's Isx-al Rule 2.12(e) which is
identical to the Manual \s suggested rule.
Tiie court recognized that its rule
restricts not only certain expressions
by parties and counsel, but also im
pinges u|x>n the constitutionally-de
rived in terest of t.he recipient/*) to se
cure tiie communication.
Likewise limited by the rule's opera
tion is the opportunity of the p la in tiff
organization to com municate concern
ing legal redress with those memiiers
who are not formal parties to the suit,
which activity ordinarily would be en
tailed in the freedom of association
and the collective right of an organiza
tional membership to achieve effective
judicial access.
Id. a t 787 (citations and footnote om it
ted). The court then went on to ca ta
logue the interests served by the Local
Rule: (1) prohibition of solicitation of
representation or funds protects laymen
from unscrupulous attorneys anil helps
preserve tiie legal profession’s image; (2)
preservation of the court’s obligation “ to
direct tiie ‘best notice practicable’ to
have no application to this case. It applies
only to Rule 23(h)(3) class actions, and this
action w as brought pursuan t lo 23(bi(2>.
19. A ssum ing m erely being there is not "ind i
rect com m unication '' as tiu lf would seem to
contend, see n. 9. s u r r a .
5534 BERNARD v. Gl \ F OIL CO.
class members, advising them of their
privilege to exclude them selves from the
class,” id. a t 790, pu rsuan t to Rule
23(c)(2) for class actions brought under
Rule 23(b)(3); and (3) the adm inistration
of justice by preventing m isrepresenta
tions. Id. a t 790—91. The court found
these objectives sufficiently im portant to
override the inhibitions on F irst Amend
m ent rights and th a t the rule is the least
drastic alternative.
I have several problems with the dis
tr ic t court’s analysis. F irst, the three
categories of interests served by the rule
can be tied to the specific prohibitions.
The court does not explain how the ple-
nary prohibition against all communica
tions absent prior approval serves the
specified goals o ther than to note tha t
‘the ingenuity of those determ ined to
wrongly take advantage of the class ac
tion procedure would likely prevail over
any a ttem p t a t prohibition by
item ization.” Id. a t 791-92. I think the
plenary prohibition in the firs t sentence
of " 2 of the order is facially overbroad.
Communications th a t do not threaten
any of the interests enum erated by the
court are prohibited. When dealing with
F irst A m endm ent rights, g rea te r speci
ficity is required.
D istrict Judge Bue of the Southern
D istrict of Texas reached the same con
clusion as I reach in his analysis of the
am endm ents his d istrict adopted to the
M anual's suggested rule. The Southern
D istrict’s rule contains only the specific
prohibitions, dropping the across-the-
board restra in ts. The prim ary reason
for the change was to avoid a violation
of the F irst A m endm ent by overbreadth:
“The key to a constitutional rule which
regulates class communication is to nar
row down those instances in which a pri
or res tra in t is im;x>sed to those in which
the types of communications subject to
judicial review before dissemination are
clearly defined and clearly capable of
Rule 23 abuse.” Bue, A nalysis o f Pro
posed Revision o f Loon/ Rule 6 o f the
Uni Lei i S ta tes District Court for tile
Southern District o f Texas, (quoted in
Bulletin. Manual for Complex Litigation,
Federal Judicial Center, 9-10 (Aug. 25
1973)).
Also, Waldo fails to distinguish be
tw een commercial forms of solicitation
and Button -type solicitation. The sig
nificance of this distinction has already
!>een discussed. Because the rule does
not make this distinction, its prohibition
on solicitation is overbroad. The govern
m ent interests th a t may legitim ately lx?
protected by prohibiting commercial so
licitation do not usually need to l>e pro
tected when Button -tyjx? solicitation is
involved because it does not pose the
sam e dangers as commercial solicitation.
Moreover, the constitutional scrutiny
given to a ban on commercial solicitation
or punishm ent for engaging in such so
licitation is significantly lower than the
scrutiny given prohibitions on Button-
type solicitation. Commercial solicita
tion is protected only by the commercial
speech doctrine, which requires a lower
level of scrutiny than required when
there is an in fringem ent of the constitu
tional righ ts of association and political
expression which <x?curs when Button-
type solicitation is prohibited. Compare
In re Primus, supra, with Ohralik v. Ohio
S ta te Bar .Association, supra.
The Waldo court’s concern with pro
tecting the adm inistration o f justice
from m isrepresentations of cases pending
before it is legitim ate. But the “reason
able likelihood” standard incorporated in
the rule simply fails to comply with con
stitu tional standards.
The proviso perm itting post-distribu
tion filing of a notice thought to lx? con
stitu tionally protected is not a cure.
BERNARD GULF OIL CO. 5535
“This provision does not elim inate— in
deed it highlights— the overbreadth and
resu ltan t chilling effect of the [Afanua/’s]
proposed rule.” Comment, 88 Harv.L.
Rev. 1911, V.)Z> n. 74 (1975). The major
ity ’s conclusion th a t the assertion of a
good faith belief gives total protection is
disingenuous. The d istric t court would
still be entitled to inquire into the bona
fides of counsel s belief.*® Because coun
sel may be called upon to establish the
basis for his good faith t>eliof, and there
fore is pu t a t risk for possibly violating
the court’s order, the good faith exce;>-
tion does not am eliorate the chilling ef
fect of the order. It is little com fort for
a conscientious atto rney to lie told that
he may com municate with jxitenlial class
memi>ers but th a t a t a la te r tim e may be
called upon by the court to ju stify the
communication.*’ Even if facially a
cure, the constitutional exception is no
cure as applied to these p lain tiffs who
prudently asked for pre-distribution ap
proval of the leaflet reproduced al>ove
ra th e r than risk [x>st-di.strihution filing
and were given a M a te d denial.
20. Although Screw s U. S .. 32.') U S 91. (15
S.Ct. 1031. 89 L.Ed. 1495 (1945). probably re
quires a show ing of specific intent to violate
the co u rt’s order, that is certa in ly not the total
p ro tection from punishm ent envisioned by the
m ajority: indeed, it indicates that assertion of
good faith is not total protection.
21. The m ajority argues th a t " (o |nce plaintiffs
subm itted the proposed com m unication to the
d istric t judge the exem ption for
com m unications they asserted w ere constitu
tionally p ro tected was no longer relevan t.’*
The issue before the d istrict court on n motion
for jrermission to d istribute would be w hether
the proposed com m unication is constitu tional
ly protected, but the issue on tins appeal is the
constitu tionality vel non of the o rder In our
exam ination of this issue, the constitu tional
exception provision is certain ly relevant: in
deed the unw illingness of the a tto rn ey s to rely
on the exception in distributing the leaflet
dem onstra tes the o rder's chilling effect. It is
the proof of the jiuddirig. Having lost on their
[ V. G inclusion
The district court misused its discre
tion under Rule 23M) and violated lit.
constitutional right:; ..I p la in tiffs ' i i .uu
sel, named plaintiffs and ail o the r actual
or potential memlierx of the class by en
te ring the orders. I dissent from P art
IV of the m ajority opinion and woulti
vacate the d istrict court’s o rder as modi
fied.
JA M ES C. HILL, Circuit .Judge, spe
cially concurring:
Being bound by the prior decisions of
this Court, as I ought to lx:, I concur.
B ckcr P hosph ite Corj>. v. Muirhcaii, 581
F.2il 1187, 1190 n. 10 (5th Cir. 1978).
My observations concerning the path
u[>on which we em barked in Zam huto v.
Am erican Telephone anil Telegraph Co.,
544 F.2d 1333 (5th Cir. 1977) are set out
in my dissent to the opinion for the En
Banc Court in W hite v. Dallas Indeften-
ilent School District, 581 F.2d 556, 563
(5th Cir. 1978) (Hill, concurring in
p art and dissenting in part).
m otion to have the o rder restrain ing their
com m unications declared unconstitu tional, the
reasonable— and respectful— co urse for them
to follow w as to ask the co u rt’s guidance be
fore d istributing the leaflet ra th e r than take
their chances under the constitu tional excep
tion. I assum e that the m ajority does not
m ean that had the plaintiffs specifically re
new ed their constitu tional objection to the o r
der a t the tim e they requested perm ission to
d istribu te the leaflet the chilling effect of the
o rder could not have been considered by the
distric t court. Such a position would be un
tenable It is not necessary to disobey a court
o rder to be able to m ake a chilling effect a t
tack on it. Indeed, the exact opposite is nor
mally required. A party may not violate a
court o rder and then in a con tem pt proceeding
tor violating the o rder challenge its constitu
tionality W a lk e r v. C i t y o f U in u in x lu tm , 388
U.S. 307. 316-17, 87 S.Ct. 1824, 1830. 18
L.Ed.2d 1210. 1217 (1967).
Adni. Office, If.S. Courts - West Publish ing Company, Saint Paul. Minn.
CERTIFICATE OF SERVICE
I hereby certify that on the 28th day of June, 1979,
copies of the foregoing Petition for Rehearing and Suggestion
for Rehearing En Banc were served on the following attorneys
by United States mail, postage prepaid, addressed to:
William G. Duck, Esq.
P.0. Box 3725
Houston, Texas 77001
Carl Parker, Esq.
440 Stadium Road
Port Arthur, Texas 77640
William H. Ng, Esq.
Equal Employment Opportunity
Commission
2401 E Street, N.W.
Washington, D.C. 20506
Attorney for Plaintiffs-Appellants