Rogers v Teitelbaum Writ of Mandamus and/or Prohibition

    IN THE

UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 

No. ________

JIMMIE L. RODGERS and JOHN A. TURNER,
Petitioners,

v.
iHONORABLE HUBERT I. TEITELBAUM,

United States District Judge,
Respondent,

UNITED STATES STEEL CORPORATION; LOCAL 1397, 
AFL-CIO, UNITED STEELWORKERS OF AMERICA; and 
THE UNITED STEELWORKERS OF AMERICA, AFL-CIO,

Real Parties in Interest.

PETITION FOR A WRIT OF MANDAMUS 
AND/OR A WRIT OF PROHIBITION

WILLIAM T. COLEMAN, JR.
Dilworth, Paxson, Kalish, 
Levy & Coleman 
2600 The Fidelity Building 
123 South Broad Street 
Philadelphia, Pa. 19109

BERNARD D. MARCUS 
Kaufman & Harris 
415 Oliver Building 
Pittsburgh, Pa. 15222

JACK GREENBERG 
JAMES M. NABRIT, III 
MORRIS J. BALLER 
BARRY L. GOLDSTEIN 
DEBORAH M. GREENBERG 
ERIC SCHNAPPER

10 Columbus Circle 
New York, N. Y. 10019

Attorneys for Petitioners



I N D E X

Statement of Facts ......................................  4
Statement of Issues Presented and Relief Sought .........  21
Reasons for Granting the Writ:

Introduction .......................................  24
I. The Orders Forbidding Plaintiffs' Attorneys 

from Meeting with the Homestead, Pennsylvania 
Branch of the N.A.A.C.P. Are Unconstitutional . 26

II. Local Rule 34(d) Is Unconstitutional on Its 
Face and as Applied in This Civil Rights 
Case..........................................  38

III. The Orders of the District Court Restricting 
Communications with Individual Class Members 
Are Unconstitutional..........................  52

IV. The Order Staying All Proceedings Violates 
Plaintiffs' Rights to Due Process and Their 
Rights Under Title VII of the Civil Rights 
Act of 1964...................................  57

Conclusion ..............................................  71

Table of Cases
Alexander v. Gardner-Denver Company, 39 L.Ed.2d 147 (1974) 66
Aptheker v. Secretary of State, 378 U.S. 500 (1964) .....  39
Bates v. Little Rock, 361 U.S. 516 (1960) ...............  53
Bolling v. Sharpe, 347 U.S. 497 (1954) ..................  35
Bridges v. California, 314 U.S. 252 (1941) ..............  32
Brooklyn Savings Bank v. O'Neil, 324 U.S. 647 (1945) .....  66,67
Brotherhood of Railroad Trainmen v. Virginia State Bar,

377 U.S. 1 (1964) .........................  31,32,40,41,
42,45,54

Page

i



Chandler v. Pretag, 348 U.S. 3 (1954) ...................  54
Clark v. American Marine Corp., 320 F. Supp. 709

(E.D. La. 1970), aff'd 437 F.2d 959 (5th Cir. 1981) . 45
Cox v. Louisiana, 379 U.S. 536 (1965) ...................  37
Cox v. Louisiana, 379 U.S. 559 (1965) ...................  37
Craig v. Harney, 331 U.S. 252 (1941) ....................  32
DeBeers Consolidated Mines Ltd. v. United States,

325 U.S. 212 (1945) ................................  25
DiCostanzo v. Chrysler Corp., 15 Fed. R. Serv.2d 1248

(E.D. Pa. 1972) ....................................  48
Eisen v. Carlisle and Jacquelin, 42 U.S.L. Week 4804

(May 28, 1974) .....................................  70
Gibson v. Florida Legislative Investigating Committee,

372 U.S. 539 (1963) ................................  53
Halverson v. Convenient Food Mart, Inc., 458 F.2d 927

(7th Cir. 1972) ....................................  45
Hansberry v. Lee, 311 U.S. 32 (1940) .................... 57,60
Huff v. Cass Co., 485 F.2d 710 (5th Cir. 1973)   44
In re Ades, 6 F. Supp. 467 (D. Md. 1934) ................  44
In re Sawyer, 360 U.S. 622 (1959) .......................  32
Investment Properties International, Ltd. v. IOS, Ltd.,

459 F.2d 705 (2nd Cir. 1972) .......................  25
International Products Corp. v. Koons, 325 F.2d 403

(2nd Cir. 1963) ....................................  25
Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir. 1968) . 45
Johnson v. Georgia Highway Express, 488 F.2d 714

(5th Cir.. 1974) ...................................  43,45
LaBuy v. Howes Leather Company, Inc., 352 U.S. 249 (1957) 25

Cases (cont'd) > Page

n



Lea v. Cone Mills, 438 F.2d 86 (4th Cir. 1971) ..........  43
Local 734 Bakery Drivers Pension Fund Trust v.

Continental Illinois Nat'l Bank and Trust Co.,
57 F.R.D. 1 (N.D. 111. 1972) ..........................  48

Malone v. North American Rockwell Corp., 457 F.2d 779
(9th Cir. 1972) ...................................... 45

N.A.A.C.P. v. Alabama ex rel. Flowers, 377 U.S. 288 (1964) 24
N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449

(1958) ...............................................  53
N.A.A.C.P. v. Button, 371 U.S. 415 (1963) .. 6,13,28,30,33,38,39,

40,41,42,44,46,50,54

N.A.A.C.P. v. Patty, 159 F. Supp. 503 (E.D. Va. 1958) .... 44
Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400

(1968) ............................................  43,44
Niemotko v. Maryland, 340 U.S. 268 (1951) ...............  36
Organization for a Better Austin v. Keefe, 402 U.S. 415

(1971) .............................................  27
Pennekamp v. Florida, 3 28 U.S. 331 (1946) ...............  32
Petway v. American Cast Iron Pipe Co., 411 F.2d 998

(5th Cir. 1969) ....................................  53
Powell v. Alabama, 287 U.S. 45 (1932) ...................  54
Rapp v. Van Dusen, 350 F.2d 806 (3rd Cir. 1965)..........  25
Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.),

cert, denied, 404 U.S. 1006 (1971) ..................  43,45
Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968) ........  25,45
Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002

(9th Cir. 1972) ....................................  43
Schlagenhauf v. Holder, 379 U.S. 104 (1964) .............  25
Schulte v. Gangi, 328 U.S. 108 (1946) .....................  66

Cases (cont'd) ^a£fe

iii



Shelton v. Tucker, 364 U.S. 479 (1960) ..................  53
Texaco, Inc. v. Borda, 383 F.2d 607 (3rd Cir. 1967) .....  25
Thornhill v. Alabama, 310 U.S. 88 (1940) ................  36
United Mine Workers v. Illinois State Bar Association,

389 U.S. 217 (1967) ................................  31,40
United States v. Allegheny-Ludlum Industries, Inc.,

C.A . No. 74-P-339, N.D. Ala.........................  10
United States v. Roble, 389 U.S. 258 (1967) .............  38,45
United States v. United States Steel Corporation,

371 F. Supp. 1045 (N.D. Ala. 1973) .................  6,36
United Transportation Union v. State Bar of Michigan,

401 U.S. 576 (1971) ..........................  31,32,39,44
Will v. United States, 389 U.S. 90 (1967) ...............  25
Williamson v. Bethlehem Steel Co., 468 F.2d 1201

(2nd Cir. 1972) .................................  57,60,63
Wood v. Georgia, 370 U.S. 375 (1962) ....................  28,32
Yick Wo v. Hopkins, 118 U.S. 356 (1886) .................  36

Statutes and Rules
28 U.S.C. § 1292(b) .....................................  17
28 U.S.C. § 1651(a) .....................................  1
42 U.S.C. § 2000e-2 (Title VII of the Civil Rights Act

of 1964 as amended) ................................  5
42 U.S.C. § 2000e-3 (a) ..................................  53
42 U.S.C. § 2000e-5 (b) ..................................  53
42 U.S.C. § 2000e-5 (f) (4) ...............................  69
42 U.S.C. § 2000e-5(f)(5) ..........................  3,17,23,69
42 U.S.C. § 2000e-5(k) ..................................  7,44

Cases (cont'd) Page

iv



Fed. R. App. P., Rule 21 ................................  1
Fed. R. Civ. P., Rule 23(b)(2) ..........................  5
Fed. R. Civ. P. , Rule 23(c)(1)   5,23,70
Fed. R. Civ. P., Rule 23(d)   47
Local Rule 19B, S.D. Florida ............................  48
Local Civil Rule 22, N.D. Illinois ......................  48
Local Rule 20, D. Maryland ............................... 48
Local Rule 34(d), W.D. Pa.........................  2,3,21,38,45,

46,47,49,50
Local Rule 6, S.D. Texas ................................  48,49
Local Rule C.R. 23(g), W.D. Washington ..................  48

Statutes and Rules (cont'd) Page

Other Authorities
ABA COMM. ON PROFESSIONAL ETHICS, OPINIONS, No. 148 (1935) 43
ABA COMM. ON PROFESSIONAL ETHICS, INFORMAL OPINIONS,

No. 786 (1964) .....................................  44
ABA COMM. ON PROFESSIONAL ETHICS, INFORMAL OPINIONS,

No. 888 (1965) .....................................  43
ABA COMM. ON PROFESSIONAL ETHICS, INFORMAL OPINIONS,

No. 992 (1967) .....................................  43
D. C. BAR ASSN. COMM. ON LEGAL ETHICS AND GRIEVANCE,

REPORT (January 26, 1971) ...........................  44
Legislative History of the Equal Employment Opportunity

Act of 1972 (H.R. 1746, P.L. 92-261) (Govt. Printing 
Office, 1972) ......................................  53

Manual for Complex Litigation (1973), Suggested Local 
Rule No. 7 (§ 1.41 "Preventing Potential Abuse of 
Class Actions") ................................... 48,50

Note, The First Amendment Overbreadth Doctrine, 83
Harv. L. Rev. 844 (1970) ............................  39

v



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT
No.

JIMMIE L. RODGERS and JOHN A. TURNER,
Petitioners,

v.
HONORABLE HUBERT I. TEITELBAUM,
United States District Judge,

Respondent,
UNITED STATES STEEL CORPORATION; LOCAL 1397, 
AFL-CIO, UNITED STEELWORKERS OF AMERICA; and 
THE UNITED STEELWORKERS OF AMERICA, AFL-CIO,

Real Parties in Interest.

PETITION FOR A WRIT OF MANDAMUS 
AND/OR A WRIT OF PROHIBITION

Pursuant to 28 U.S.C. § 1651(a) and Fed. R. App. P. 21, 
petitioners respectfully request that the Court issue its writ 
of mandamus commanding the respondent, the Honorable Hubert I. 
Teitelbaum, to vacate his several orders and the local rule of 
court set forth below and, in addition, or, in the alternative, 
it is respectfully requested that the Court prohibit the 
respondent from enforcing those orders and the local rule of
court hereinafter listed:



1. An order (App. 189a) issued temporarily June 27, 1974, 
and finalized by an order of July 19, 1974 (App. 259a), which 
applies Local Rule 34(d) so as to forbid plaintiffs' attorney 
Bernard D. Marcus and his associates from accepting an unsolicited 
invitation to attend a meeting of the Homestead, Pennsylvania 
Branch of the National Association for the Advancement
Colored People (N.A.A.C.P.) for the purpose of discussing racial 
discrimination at the Homestead Works of the United States Steel 
Corporation, including particularly the effect on said plant of 
a nationwide employment discrimination consent decree entered in 
a suit brought by the United States in the United States District 
Court for the Northern District of Alabama. (The motion of 
plaintiffs "to communicate with the NAACP" was stated by the 
respondent to be "denied at this time without prejudice to 
renewal of that motion at a time which would appear to be more 
appropriate to me," but there was no elaboration of the consider­
ations governing an "appropriate time" for such a meeting.)

2. Local Rule 34(d) of the United States District Court 
for the Western District of Pennsylvania, which provides:

Rule 34. Class Actions. .#
In any case sought to be maintained as a 
class action.

*  *  *

(d) No communication concerning such action 
shall be made in any way by any of the parties 
thereto, or by their counsel, with any potential 
or actual class member, who is not a formal

2



party to the action, until such time as an 
order may be entered by the Court approving 
the communication.

3. An order (App. 82a-86a) issued September 29, 1973, and 
reaffirmed by order of July 19, 1974 (App. 259a-260a), which 
applies Local Rule 34(d) of the United States District Court 
for the Western District of Pennsylvania so as to limit plain­
tiffs and their attorneys from any communication with members 
of the putative class who are not formal parties.

4. An order issued July 19, 1974 (App. 259a-265a), which 
applies Local Rule 34(d) so as to forbid plaintiffs' attorneys 
from communication with members of the class who on their own 
initiative request an opportunity to consult with said attorneys, 
unless each individual class member first submits an affidavit 
about how they happened to contact counsel.

5. An order issued June 27, 1974 (App. 174a-175a, 188a), 
forbidding plaintiffs from conducting any further discovery and 
staying all proceedings, including a class action determination, 
until at least January 15, 1975, notwithstanding that it is the 
statutory duty of respondent "to assign the case for hearing at 
the earliest practicable date and to cause the case to be in 
every way expedited" (42 U.S.C. § 2000e—5 (f) (5)).

In order to facilitate presentation and disposition of the 
matter, petitioners have filed a notice of appeal from the 
orders of June 27, 1974, and July 19, 1974, in the district court,

3



and are filing in this Court, together with the present petition 
for prerogative writs, the following motions:

(1) a motion for consolidation of the present 
application for prerogative writs with the 
appeal, and for consideration of the appli­
cation for prerogative writs on the record 
filed in the appeal;

(2) a motion for a stay of the challenged orders 
and for pendente lite relief during consid­
eration of the consolidated proceeding in 
this Court, and/or for expedited hearing of 
the consolidated proceeding.

The relevant papers in the district court, to which refer­
ence is made in this petition are included in an appendix to 
this petition filed herewith, and will be identified by 
reference to page numbers in the appendix.

The grounds for the petition for writs of mandamus and/or
prohibition are as follows:

I. STATEMENT OF FACTS

1. On August 24, 1971, petitioners (who are plaintiffs 
below) filed in the United States District Court for the Western 
District of Pennsylvania a complaint for injunctive relief, back 
pay and damages which was styled Rodgers and Turner v. United

4



States Steel Corporation, et al., Civil Action No. 71-793. The
amended complaint (App. 5a-15a) sought to remedy racial dis­
crimination at the Homestead Works of the United States Steel 
Corporation. Plaintiffs are black employees of the defendant 
corporation and members of the defendant unions. The amended 
complaint alleged extensive discriminatory employment practices 
in violation of 42 U.S.C. 2000e-2 [Title VII of the Civil Rights 
Act of 1964, as amended]. The action was sought to be main­
tained as a class action pursuant to Federal Rule of Civil 
Procedure 23(b)(2) on behalf of a class of more than 1,200 black 
workers employed at the Homestead facility during a specified 
period of time on jobs represented by defendant local union. 
Plaintiffs have sought by repeated motions and briefs to have a 
class determination pursuant to Rule 23(c)(1) (App. 35a-41a, 46a- 
66a, 97a-117a) but the district court has deferred decision of 
the matters (App. 82a-86a, 174a-175a).

2. One of the attorneys for plaintiffs is Bernard D. Marcus 
of the Pittsburgh firm of Kaufman & Harris. Associated with him 
in the case are several attorneys employed by the N.A.A.C.P. Legal 
Defense and Educational Fund, Inc. (the Legal Defense Fund), a 
non-profit corporation engaged in furnishing legal assistance in 
certain cases involving claims of racial discrimination. The 
Legal Defense Fund, which is entirely separate and apart from 
the National Association for the Advancement of Colored People

5



(N.A.A.C.P.), but has similar aims and purposes, has been approved 
by a New York court to function as a legal aid organization.
Since 1940, the Legal Defense Fund has furnished legal assistance 
in civil rights matters in state and federal courts throughout 
the nation, usually in conjunction with local counsel such as
Mr. Marcus and his firm in this matter. N. A, A , C. P . v.— Button,
371 U.S. 415, 421, n. 5 (1963). Various Legal Defense Fund staff 
attorneys (including Messrs. Goldstein and Bailer and 
Mrs. Greenberg, involved in the present matter) have developed 
expertise as counsel in cases involving employment discrimination. 
Mr. Goldstein was plaintiffs' trial counsel in a similar matter 
which resulted in injunctive relief and back pay awards for 
black employees of the United States Steel Corporation facility 
at Fairfield, Alabama. United States v. United States Steel 
Corporation, 371 F. Supp. 1045 (N.D. Ala. 1973). Accordingly,
Mr. Goldstein has developed specific knowledge and expertise about 
problems of racial discrimination in the steel industry and past 
and present practices of the defendant company and unions.

3. In undertaking to represent the named plaintiffs, 
plaintiffs' attorneys did not accept or expect any compensation 
from them, nor do they expect to receive any compensation from 
any additional named plaintiffs who may hereafter be added, or 
from any member of the plaintiff class. Mr. Marcus and his firm 
expect to be compensated in this matter only by such attorneys

6



fees as may eventually be awarded by the court. Any fees awarded 
by the court on account of work done by the employees of the 
Legal Defense Fund will be paid over to that non-profit corpora­
tion and will not be paid to the individual staff lawyers whose 
compensation is limited to annual salaries. Plaintiffs' entitle­
ment to an award of counsel fees by the court would not in any 
event be affected by the number of individuals who are named as 
parties plaintiff since the fees are not paid by the clients but, 
rather, they are taxed as costs to the defendant. See 42 U.S.C.
§ 2000e-5 (k).

4. Plaintiffs' counsel have engaged in extensive and diffi­
cult investigative efforts required to prepare and present a 
comprehensive employment discrimination case against the defendant 
company and unions. The investigation has included extensive 
discovery efforts, including examination of records and computer 
analysis of relevant records. In response to the court's direc­
tive, a certificate by one of plaintiffs' attorneys, Mr. Leete, 
on March 21, 1974, estimated that plaintiffs' attorneys and their 
research staff had devoted 225 hours reviewing company documents 
and planning and coordinating their inspection (App. 87a-92a) and 
this estimate did not account for a substantial amount of time 
relating to the initial preparation of the case, depositions, con­
ferences and computerized discovery, all of which has taken far 
in excess of 1,000 hours.

7



5. To date, plaintiffs' attorneys have been forbidden during 
their investigation of the case and preparation from communicating 
with any members of the plaintiffs' class except for the named 
plaintiffs Jimmie L. Rodgers and John A. Turner. The prohibition 
on communication results from a local rule of court and a series 
of oral orders by the court. The rule of court is Local Rule 34(d) 
which is quoted in full above at pp. 2-3. The plaintiffs first 
effort to obtain permission to communicate with class members was 
by motion filed September 21, 1973. The motion for permission to 
communicate (App. 44a-45a) ^hich accompanied a memorandum in sup­
port of plaintiffs' motion for a class determination) (App.
46a-66a) alleged that plaintiffs' ability "effectively to present 
the claims of class members, to discover the case, and to define 
the scope of the issues with greater specificity depends in sig­
nificant part on their having access to class members, to 
investigate their complaints, and to supplement the available 
defendants' documentary materials by interviewing their employees 
(App. 44a-45a). It alleged: "At this stage, such communication
becomes appropriate and even imperative" (App. 45a). Plaintiffs 
asked for a general order "allowing proper communications" and 
stated that "It would be impractical and unworkable for plaintiffs 
to reapply specifically for permission to communicate with particu­
lar class members" (App. 45a).

8



6. The ruling of the court on the motion to communicate is 
set forth below from the transcript of September 29, 1973:

THE COURT: * * *
As to discussion with individual members of 

the class, if you will notify the defendants in 
advance whom you intend to contact in the class 
and what you intend to ask. them, and what you 
think you can get from them, then I will permit 
you to contact them for the limited purposes that 
you have set forth, giving the right to the defend­
ant to object to your contacting any particular 
member of the class, because it seems to me that 
this is absolutely going to be an exercise in 
futility when you go to an employee of the United 
States Steel Corporation and ask him what testing 
means were used in 1962. I can't conceive of him 
knowing, and I think it would be a waste of time.
(App. 84a-85a)

*  *  *

THE COURT: The ruling of the Court is that
they can't contact people who are not named as 
parties until an order of Court. No person is 
to be contacted without my permission. As to the 
specific individual concerned after giving notice 
to the defendants who the individual is and what 
you expect to learn from him, then we can determine 
whether this is sufficient reason to change the 
general rule.

The transcript of this conference will take 
the place of and will be considered the order of 
this Court, no written order being necessary by 
agreement of all parties. (App. 85a—86a)

7. On April 12, 1974, Honorable Sam C. Pointer, Jr., United 
State District Judge for the Northern District of Alabama, signed 
two consent decrees (App. 287a-355a), tendered in an employment 
discrimination suit filed that day by the United States and the 
Equal Employment Opportunity Commission against 9 major steel

9



companies (including U. S. Steel Corporation) and the United 
Steelworkers of America, AFL-CIO-CLC (App. 278a-286a). The case 
is styled United States v. Allegheny Ludlum Industries, Inc.,
C.A. No. 74-P-339, N.D. Ala. The decrees include an injunction 
which purports to remedy systemic racial discrimination and sex dis­
crimination in over 200 plants employing more than 65,000 
minority and women workers operated by the nine steel companies, 
including the Homestead Works of U. S. Steel. Promptly after 
learning of the provisions of the consent decrees, plaintiffs 
Rodgers and Turner, in company with other black steelworkers in 
Alabama, Maryland and Texas plants, moved to intervene in the 
Alabama case (App. 373a-387a), and to set aside the consent 
decrees on the ground that various provisions of the decrees 
were unlawful and unconstitutional (App. 388a-407a). They objected, 
among other things, that the decree was unlawful in that it sanc­
tioned a procedure by which the defendant companies would tender 
back pay to certain minority steelworkers in return for the workers 
signing waivers or releases of certain of their rights to remedy 
employment discrimination. Intervenors attacked the proposed 
waivers as void as against public policy and contrary to Title VII. 
On June 7, 1974, Judge Pointer, after hearing arguments and 
receiving extensive briefs, entered an opinion and order (App. 
356a-364a, 365a-366a) permitting Rodgers and Turner (and the others 
in similar cases) to intervene for the limited purpose of seeking

10



!

to stay or vacate the consent decrees, but overruling and denying 
their claims that the consent decrees are illegal. The inter- 
venors then filed a notice of appeal, and applied to Judge Pointer 
for a stay pending appeal. The stay was denied by order and 
opinion dated July 17, 1974 (App. 367a-371a, 372a). At this 
writing a request for a stay pending appeal is being prepared for 
submission to the United States Court of Appeals for the Fifth 
Circuit. Copies of the consent decrees, the intervenors' motions 
to set aside the decrees and to intervene, and Judge Pointer's 
two opinions and related documents are included in the appendix 
(App. 278a-525a).

8. Meanwhile, on April 17, 1974, plaintiffs Rodgers and 
Turner moved in the court below for an injunction to restrain the 
defendants from communicating with class members at Homestead 
Works with respect to the consent decrees, including such matters 
as back pay (App. 118a-123a). It was noted that the consent 
decrees provided for a series of such communications and notices 
by the defendants to class members, including notices of rights 
under the injunctive decree respecting seniority and similar 
matters, and notices advising workers of their right to obtain 
back pay if they would execute releases or waivers in certain cir­
cumstances and during a specified 30 day period in which back pay 
offers will be tendered. Prior to a hearing on the motion for an 
injunction, the parties entered into an agreement which was stated

11



to the court at a hearing on April 24, and plaintiffs withdrew
• i

the request for an injunction (App. 126a-135a). Defense counsel 
agreed to show plaintiffs' counsel copie? of any proposed com­
munications to the class concerning back pay prior to their 
distribution and permit plaintiffs sufficient time to renew their 
objections in court and obtain a ruling prior to the communica­
tion. Ibid. Defendants also promised to review with plaintiffs 
counsel the "format" of the explanation to be given to class 
members by the Implementation Committees created by the consent 
decrees. The Implementation Committees are composed of representa­

tives of labor and management.
9. On June 26, 1974, plaintiffs Rodgers and Turner filed a

motion in the court below (W.D. Pa.) asking that the court grant 
them permission to communicate with six named individual members 
of the class, Messrs. Kermit R. White, Linwood Brosier, Abraham 
Lance, Frank Moorfield, Rosse Jackson and Eugene Arrington (App. 
143a-153a). The motion explained that plaintiffs' counsel had 
been contacted by Mr. White and Mr. Brosier on behalf of themselves 
and the other four men "for the purpose of seeking representation 
for their claims of employment discrimination at Homestead Works 
of United States Steel Corporation" (App. 144a). The motion 
pointed out that neither Local Rule 34(d) nor the court’s prior 
order had specifically dealt with unsolicited requests for repre­
sentation, but noted that defense counsel had by letter objected

12



to the communication. A supporting affidavit (App. 140a-142a) 
by Mrs. Elizabeth Smith, Assistant Labor Director of the N.A.A.C.P., 
explained how she had been contacted with a request for information 
and assistance by Messrs. White and Brosier, and how she in turn 
had suggested that they contact the attorneys of the Legal Defense 
Fund who she knew were involved in the Alabama litigation and 
the Rodgers and Turner case.

The same June 26 motion also asked the court for permission 
for plaintiffs' counsel to "Meet with members of the Homestead 
Chapter of the N.A.A.C.P. to respond to said chapter s direct 
request to discuss the subject of discrimination at the Homestead 
Works of United States Steel Corporation" (App. 143a). The 
motion pointed out the nature of the N.A.A.C.P. and its purposes, 
explained the circumstances of the invitation which included a 
request for information about the Alabama consent decrees and the 
pending local litigation. The motion alleged specifically that 
a denial of the right to communicate would violate constitution­
ally protected rights of free speech and association as well as 
the right of counsel to practice law. The motion relied on 
N.A.A.C.P. v. Button, 371 U.S. 415 (1963), and a series of succeed­

ing cases (App. 147a).
10. On the same date, June 26, plaintiffs filed a related 

motion entitled "Renewed Motion for Permission to Communicate with 
Members of the Proposed Class" (App. 166a-170a). The latter

13



motion pointed out that the court had set January 15, 1975, as 
the deadline for completion of discovery; that under the prior 
orders of court counsel were unable to communicate with class mem­
bers for discovery purposes, that plaintiffs had undertaken a 
great deal of time consuming and costly computer analysis and 
discovery of defendants' records and now needed to talk with mem­
bers of the class in order to effectively represent their claims, 
to define the issues and complete discovery, and that it was 
impractical and unworkable for plaintiffs to apply specifically 
for the right to communicate with particular class members. The 
motion alleged also that it was inequitable to prohibit communi­
cation by plaintiffs while the defendants could communicate with 
the class pursuant to the consent decrees to offer them back pay 
and seek to persuade employees to execute releases waiving their

rights.
11. On June 26, plaintiffs also filed a renewed motion to 

compel answers to certain interrogatories and for production of 
documents (App. 154a-165a). This motion, too, asserted plain­
tiffs' understanding that the court had set the close of discovery 
for January 15, 1975, and sought a ruling with respect to a large 
number of interrogatories which defendants had objected to or 
answered in a manner deemed inadequate by plaintiffs.

12. At a conference with the court on June 27, 1974, the 
court issued a number of rulings on the motions discussed above

14



(App. 171a-189a). First, the court took up the motion to compel 
answers to interrogatories and production of documents under 
Rule 37. The district judge stated that it was his impression 
that at an earlier conference he had said "We were going to 
hold everything in limbo until January 15th [1975] to find out 
what was going to happen in the South, and then we would see 
what were going to do after we found out where we were" (App. 
175a). Plaintiffs' counsel stated his different recollection 
that January 15, 1975, was the discovery deadline, and, in any 
event, strenuously objected to holding the Rodgers case in abey­
ance pending developments flowing from the Alabama consent decree. 
Plaintiffs' counsel objected that they were not parties to the 
consent decree, had no notice of it prior to its entry, and that 
they were not bound by the consent decree because they had 
"never had their day in court on the determination of discrimina­
tion or appropriate relief" (App. 173a). But the court ruled 
"It seems to me to go forward in two different areas when it 
might be moot as a result of what might happen as a result of a 
consent decree is an unusual expenditure of money and a waste of 
your time and mine" (App. 175a). And further: "We will talk
about further discovery in January. I want to see what is going 
to happen there before we go forward with discovery on the 

matter" (App. 175a).
Because of the district judge's position that this was a

15



matter he had previously' ruled on ("That's what I said, and 
that's what I meant, and that's what I still mean.") (App. 175a), 
there was no full argument about whether either in law or in 
fact the consent decree could possibly moot the Rodgers case. 
Plaintiffs could quite readily have established important rele­
vant facts: First, a number of black steelworkers at Homestead
Works, who were included in the class sought to be represented 
in Rodgers, would not even be tendered back pay under the consent 
decree which limits back pay to workers whose date of employment 
precedes January 1, 1968, and who are still employed or have 
retired on pension within the last two years (App. 328a-330a).
The effect is to define a narrower class than that in Rodgers.
The class in Rodgers was defined by stipulation to include black 
workers employed at Homestead Works during the period August 24, 
1971, and May 1, 1973, in jobs represented by the local union 
(App. 42a-43a). Second, there was widespread dissatisfaction 
of black steelworkers with the consent decree as reflected by a 
statement by the President of the Homestead Branch of the N.A.A.C.P. 
in May 1974, asserting that there were "from 400 to 500 Black 
employees who have pledged not to sign the release."

13. With respect to the motion to communicate, the court 
on June 27 heard arguments and took the matter under advisement 
pending considerations of briefs on the constitutional issues. 
However, the court did specifically forbid Mr. Marcus from

16



attending an N.A.A.C.P. meeting during the week of July 7 (App. 

189a).
14. On July 8, 1974, plaintiffs by motion (App. 190a-193a) 

asked the court to enter a written order with respect to its
June 27 rulings and that the court enter an order in the terms 
required by 28 U.S.C. § 1292(b) so that plaintiffs might pursue 
an interlocutory appeal. Plaintiffs also asked that the court 
grant a stay of its orders denying discovery and prohibiting 
communication pending an appeal or application for prerogative 
writs. Plaintiffs also moved for similar relief, i.e., a stay 
and a section 1292(b) order in the event the court rejected 
plaintiffs' motion for permission to communicate with the six 
named individuals and to meet with the N.A.A.C.P. chapter. The 
pleading also directed the court's attention to the statutory 
requirement of expeditious handling of Title VII cases. 42 U.S.C
§ 2000e-5(f)(5) (App. 191a-192a).

15. On July 19, 1974, the court held another conference 
and ruled on the pending motions (App. 255a-276a). The court 
denied the motions to certify questions to the Court of Appeals

(App. 259a). The court ruled:
As to the motion to communicate with the NAACP, 

that is denied at this time without prejudice to 
renewal of that motion at a time which would appear 
to be more appropriate to me.

Now, as to the motion to communicate with 
individuals who have requested that they discuss

17



matters with counsel, that motion is granted.
However, the previous order forbidding solici­
tation and requiring prior Court approval of 
all communications with any other individuals 
is left intact. You may talk to those six 
individuals, but you may not solicit anybody 
else, nor may you make any communications with 
anybody else except pursuant to Court approval.
(App. 259a-260a)

Subsequently, in the conference, defense counsel argued that only 
two of the six individuals had contacted Mr. Marcus representing 
the other four, and that accordingly Mr. Marcus should be limited 
to communicating with Mr. White and Mr. Brosier. The court then
prescribed an affidavit procedure by which plaintiffs' counsel

• ;
may not talk to any class members until after they have obtained 
an affidavit from the class members stating how they happened to 
contact counsel. The ruling is reflected in the following 
colloquy:

THE COURT: How did you get six?
MR. MARCUS: I stated in my motion that the

two individuals that Mr. DeForest has identified 
contacted me on their behalf and on behalf of 
four other gentlemen who are also listed in the 
motion. They had specific authorization from 
those gentlemen to so contact me, and they asked 
that I represent all of those individuals.

THE COURT: You file an affidavit with the
Court by those two individuals stating that, and 
then you may contact the other four.

MR. DeFOREST: Your Honor, I have one problem.
I would like it made clear that because I fear 
that we will have repeated situations where cer­
tain persons will call and claim they represent 
nine, ten, or twenty persons, and then accordingly

18



Mr. Marcus may communicate with them. Is that 
right?

THE COURT: No. He may not communicate with
anybody beyond the two plus the four after the 
filing of the affidavit.

MR. MARCUS: Unless I seek further approval
of the Court.

THE COURT: We will see what happens.
MR. DeFOREST: Would the Court be amenable

that Mr. Marcus contact the other four if each 
called individually and stated —

THE COURT: Or by the filing of an affidavit
stating they want to see him.

MR. DeFOREST: That would be better.
MR. MARCUS: I am a little confused. Do you

want an affidavit of the two individuals stating 
that they represent the other four?

THE COURT: And the four individuals stating
that, that is correct.

MR. MARCUS: I can't get an affidavit if I
don't communicate with the other four.

THE COURT: You may communicate to the extent
to ask for such an affidavit. If that is filed, 
then you may communicate with them. In other 
words, I don't want to set up a system of runners 
here.

MR. MARCUS: Neither do I.
THE COURT: So I will limit it to the two plus

the four with those affidavits, but before you talk 
to them about the merits, I want you to have the 
affidavits and file them. (App. 261a-262a)

16. At the July 19, 1974, conference, the court also took 
up the matter of a proposed letter to all class members and an

19



attached outline of the consent decree which had then recently 
been approved by Judge Pointer. Defendants had undertaken 
before Judge Pointer to submit the notice to judges who had pend­
ing local cases. Plaintiffs advised the court that they had 
been given no notice or opportunity to be heard by Judge Pointer 
on the letter and outline but that they were seeking a hearing 
before Judge Pointer to revise the notice. Plaintiffs submitted 
their proposed changes to Judge Teitelbaum. Judge Teitelbaum 
ruled that he would not pass on objections to the letter to be 
sent at the Homestead Works but would leave the matter entirely 
to Judge Pointer (App. 257a-259a). In the course of the proceed­
ings Judge Teitelbaum also stated that if Judge Pointer authorized 
plaintiffs to communicate with the class he would not object:

THE COURT: If Judge Pointer will authorize you
to send out a letter, I have no objection.

MR. MARCUS: Or to communicate with any member
of this class.

THE COURT: I have no objection if he does it.
I am not going to do it myself. That is what I'm 
saying. If Judge Pointer wants to do it, the 
case is with him, and he is far more familiar with 
the people to explain why the people shouldn't 
approve the settlement by solicitation, by letter, 
orally or any other way.

MR. SCHNAPPER: That is the problem we will
take up with him.

THE COURT: I don't want to be a side agent
operating at the side affecting something before 
another judge. (App. 266a)

20



Subsequently, at a conference with Judge Pointer on July 23,
1974, Judge Pointer ruled orally that he had no objection to 
any communication with the class in Homestead Works which might 
be permitted by Judge Teitelbaum, nor did he believe that it 
would interfere with the consent decree if the Rodgers litigation 
proceeded (App. 518a-520a). This was reported to Judge Teitelbaum 
in a Report to the Court containing the transcript of the July 23 
conference (App. 277aa-277bb).

STATEMENT OF ISSUES PRESENTED AND RELIEF SOUGHT

This petition presents the following issues:
1. Whether the orders of court prohibiting plaintiffs' 

counsel from meeting with an N.A.A.C.P. chapter are unconstitu­
tional in violation of the Due Process Clause of the Fifth 
Amendment and the First Amendment protections of freedom of speech, 
freedom of association, and privacy of association in that:

a. The order overbroadly prohibits constitutionally 

protected First Amendment activities.
b. The order is a discriminatory regulation of free 

speech which favors the steel company and union and disadvantages 

black employees.
2. Whether Local Rule 34(d) of the Western District of 

Pennsylvania is unconstitutional on its face and as applied in 
violation of the Due Process Clause and the First Amendment

21



protections of freedom of speech, freedom of association and 
privacy of association in that the rule overbroadly infringes 
on constitutionally protected activities.

3. Whether the orders of court applying Local Rule 
34(d) are unconstitutional in violation of the Due Process 
Clause and the First Amendment in that:

a. The requirement that there be no communication 
by counsel with class members who approach counsel without 
first filing an affidavit in court before discussing substan­
tive matters (i) violates the First Amendment rights of freedom 
of association and privacy of association and free speech as 
well as (ii) the right to access to legal counsel and also
(iii) unfairly and discriminatorily disadvantages plaintiffs 
in the presentation of their case.

b. The requirement that there be no communication 
by plaintiffs' counsel with class members on counsel's initia­
tive in investigating the case and gathering facts without first 
disclosing the identity of the class members and the expected 
nature of the facts to be learned from the class members vio­
lates (i) the First Amendment rights of free speech, freedom
of association and privacy of association and also (ii) unfairly 
and discriminatorily disadvantages plaintiffs in the presenta­

-'r22 ~

tion of their case.



4. Whether the order of court staying all discovery 
and delaying all proceedings in this case, including a class 
action determination, until at least January 15, 1975, is an 
abuse of discretion and contrary to law in that:

a. It is contrary to the provisions of 42 U.S.C.
§ 2000e-5(f)(5);

b. It violates the plaintiffs' right to due process 
of law by impairing their rights in this pending case and 
threatening to defeat their rights on the basis of a consent 
decree in another court entered without notice or hearing to 
plaintiffs and without their agreement;

c. It is contrary to Rule 23(c)(1), Fed. R. Civ. P.
The relief requested is more fully set forth above at

pages 2-3. Petitioners seek an order vacating or prohibiting 
enforcement of the several orders of court and the rule of 
court described in detail above.

23



REASONS FOR GRANTING THE WRITS
Introduction

This is an extraordinary case in several aspects. The 
issues of freedom of speech, freedom of association and privacy 
of association and right to counsel are raised by orders of the 
court below which restrict free speech and association in a 
sweeping and unprecedented fashion. The order forbidding plain­
tiffs' counsel from even attending a meeting of a local N.A.A.C.P. 
chapter, without regard to the content of their speech, asserts 
a right to regulate free association more broad than that ever 
claimed since the Supreme Court repudiated Alabama's total 
repression of the N.A.A.C.P. by ousting it from the State. 
N.A.A.C.P. v. Alabama ex rel. Flowers, 377 U.S. 288 (1964). The 
several orders fashioned below imposing procedural restraints on 
communication between counsel and black steelworkers involve 
narrower, but no less important issues of free speech and private 
communication, as well as substantial claims of unfair discrim­
ination. These restrictive orders stem from a local rule of 
court which more broadly restricts free speech than any other 
federal court rule or order our research has uncovered.

The case is extraordinary, too, because the present issues 
arise out of an extraordinary event. That event is the effort of 
major steel companies and federal government agencies, respec 
tively charged with obeying and enforcing fair employment laws.

24



to compromise the employment discrimination claim of every black 
steelworker in the nation by an agreement negotiated without the 
participation of a single black worker's representative. The 
consent decree is now used to justify an order below which 
stays all proceedings and thus to impair the rights of black 
steelworkers to pursue their statutory remedies in a pending 

case.
Prerogative writs are appropriate because the district 

court's oral orders and rule of court are "a clear abuse of 
discretion," LaBuy v. Howes Leather Co., 352 U.S. 249, 257 
(1957), and a judicial "usurpation of power," De Beers Consoli­
dation Mines Ltd, v. United States, 325 U.S. 212, 217 (1945). 
These unprecedented rulings also present an "issue of first 
impression" proper for the exercise of this Court's supervisory 
power over the administration of justice. Schlagenhauf v. Holder, 
379 U.S. 104, 110-12 (1964). In such circumstances, "the writ 
serves a vital corrective and didactic function," Will v. United 
States, 389 U.S. 90, 107 (1967); Rapp v. Van Dusen, 350 F.2d 806, 
811-12 (3rd Cir. 1965); Texaco, Inc, v. Borda, 383 F.2d 607 (3rd 
Cir. 1967). See also, Investment Properties International, Ltd. 
v. IQS, Ltd., 459 F.2d 705, 707 (2nd Cir. 1972). Mandamus is 
the more fitting remedy when rulings and local rules of court 
infringe upon constitutional rights and Civil Rights Act policies 
Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968); International 
Products Corp. v. Koons, 325 F.2d 403, 408 (2nd Cir. 1963).

25



I.

The Orders Forbidding Plaintiffs' Attorneys From 
Meeting with the Homestead, Pennsylvania Branch 
of the N.A.A.C.P. Are Unconstitutional.

On June 27, the district court absolutely forbade plaintiffs' 
counsel Mr. Marcus and his associates, some of whom are staff 
lawyers employed by the N.A.A.C.P. Legal Defense and Educational 
Fund, Inc., from attending a meeting of the Homestead Branch of 
the National Association for the Advancement of Colored People 
which was scheduled for the week of July 7. Thereafter, on 
July 19, the district court reiterated its order and forbade 
their attendance at any meeting of the branch "without preju­
dice to renewal of that motion at a time which would appear more 
appropriate to me." The court was informed that the N.A.A.C.P. 
chapter had requested information about the Alabama consent 
decrees and the pending local litigation, and had issued an 
unsolicited invitation to plaintiffs' attorneys. The court was 
also informed that the defendants were then currently engaged in 
preparing to distribute letters and related materials to class 
members discussing the consent decrees. It was also generally 
understood that the Homestead Branch membership included persons 
within the putative class in the Rodgers case.

The order of court is an unconstitutional prior restraint 
of free speech. Moreover, it flatly and broadly prohibits all 
communication and associational activities, however lawful or

26



innocuous, between counsel and the branch. Prior restraints 
of free speech grounded upon infinitely more solid showings 
that speech would do harm than anything in this record have 
repeatedly been held unconstitutional. Organization for a 
Better Austin v. Keefe, 402 U.S. 415 (1971). The Supreme Court
said in that case:

Any prior restraint on expression comes to 
this Court with a "heavy presumption" against 
its constitutional validity. Carroll v.
Princess Anne, 393 U.S. 175, 181 (1968);
Bantam Books, Inc. v. Sullivan, 372 U.S. 58,
70 (1963). Respondent thus carries a heavy 
burden of showing a justification for the 
imposition of such a restraint. (402 U.S. 
at 419)

The district court has put forth no clear justification for 
the prior restraint imposed in this case. The ruling may be 
examined in light of the parties' contentions below. The 
defendant company contended that restraint should be imposed to 
prevent plaintiffs' attorneys from making erroneous statements 
of law or fact. The brief filed below said:

The potential dangers of such communications 
are obvious. Not only might counsel for plain­
tiffs misstate, even though unintentionally, the 
application of the Consent Decrees to the alleged 
Rodgers class, but they might also give erroneous 
opinions as to present status and future course 
or results in the instant litigation. (App. 216a)

The defendant union made a similar argument that there was an
"everpresent danger that plaintiffs' counsel will misrepresent
the present status of this lawsuit and the effect of the Consent
Decree upon it" (App. 247a).

27



We think it plain that these arguments for prior restraint 
are insufficient. Imposition of a prior restraint of speech 
to protect class members who seek counsel from the possibility 
of obtaining mistaken facts or bad advice is simply beyond 
the power of a court under the First Amendment. The suggestion 
of the company that members of a civil rights organization must 
be protected from even "unintentional" misstatements by an 
attorney stretches the claim to a demand for total suppression 
of free speech. Only by keeping silent can one avoid an "unin­
tentional" error. "__ [T]he Constitution protects expression
and association without regard to -- the truth, popularity
or social utility of the ideas and beliefs which are offered." 
N.A.A.C.P. v. Button, 371 U.S. 415, 444-445 (1953); see also,
Wood v. Georgia, 370 U.S. 375, 387 (1962). We submit that the 
accuracy of the facts that plaintiffs' attorneys give the 
N.A.A.C.P. branch is no more the business of the defendant than 
it is plaintiffs' business what facts the company lawyers tell 
the executives of the steel company or their shareholders. Nor 
is it the proper concern of the court to restrain in advance 
citizens, who freely join a civil rights organization, from 
freely communicating with lawyers about matters of mutual concern.

The court below did make plain that the prior restraint was
1/

not merely to prevent soliciation of clients. When Mr. Marcus 

1/ See infra, n. 3, at pp. 44-45.

28



asked the judge if he and his colleagues could attend the meeting 
if they would promise not to represent any of the individuals 
there, the judge responded to the effect that his concern was 
that they might "sabotage the settlement in Judge Pointer's 
court." The colloquy was as follows:

MR. MARCUS: Your Honor, I wonder if we
could suggest an alternative since this is 
your main concern in dealing with this problem 
of equal time and communicating with respect 
to matters that the defendants are being per­
mitted to communicate, and that is, if we will 
agree not to represent in any action, other 
than a class action that may be pending, those 
individuals who would like us to discuss the 
consent decrees or the pending litigation with 
them, would that be satisfactory to do this?

THE COURT: That is exactly what I don't
want. That is exactly what I do not want.

MR. MARCUS: This avoids any solicitation
and barratry where we agree in advance not to 
represent them.

THE COURT: That is worse than enabling
people to go to an alleged interested party 
and attempt to sabotage the settlement in 
Judge Pointer's court, and I don't want that 
to happen. (App. 265a-266a)

Thus, Judge Teitelbaum's concern with communications which 
he felt would "sabotage" the settlement has resulted in a prior 
restraint which was never even suggested by Judge Pointer who 
approved the settlement. Judge Pointer has not seen fit to use 
his judicial powers either to persuade any black steelworkers 
to accept the settlement or to interfere in any manner with their

29



right to oppose it. We believe that members of the N.A.A.C.P. 
and any other black steelworkers have a right to freely organ­
ize to oppose the settlement in whole or in part and to seek 
guidance from lawyers knowledgeable about the case, free of any 
prior restraints on their communications.

The activities of the N.A.A.C.P. and Legal Defense Fund 
attorneys have been held by the Supreme Court to be within the 
sphere of constitutionally protected activity. It is quite 
clear then that an order banning lawyers from attending an 
N.A.A.C.P. meeting touches on constitutionally protected rights. 
The Supreme Court in N.A.A.C.P. v. Button, 371 U.S. 415 (1963), 
has specifically made clear that restriction of political

2/

2/ Judge Pointer, when asked on July 23, 1974, if plaintiffs 
could communicate with the class in Pittsburgh, stated:

THE COURT: It's a very touchy area, as you
can understand, I'm sure, when you present it 
in that light.

I think the best thing that I can say is 
that I have no objection to that procedure.

I think that particular problem is most 
directly a matter for that District Court and 
it's [sic] local rules and the way it analyzes 
such.

I can see no conflict with the administra­
tion of the consent decree if you were to be 
given that permission.

And that's about all I can say. (App. 518a)

30



association of the exact kind here at stake is constitutionally 
impermissible:

In the context of NAACP objectives, litigation is 
not a technique of resolving private differences, 
it is a means for achieving the lawful objectives 
of equality of treatment by all government, fed­
eral, state and local, for the members of the Negro 
community in this country. It is thus a form of
political expression.

*  *  *

The NAACP is not a conventional political 
party; but the litigation it assists, while serv­
ing to vindicate the legal rights of members of 
the American Negro community, at the same time 
and perhaps more importantly, makes possible the 
distinctive contribution of a minority group to 
the ideas and beliefs of our society. For such 
a group, association for litigation may be the 
most effective form of political association.
(371 U.S. at 429, 431.)

The Button decision has spawned a line of cases that ratify this 
principle. Brotherhood of Railroad Trainmen v. Virginia ex rel. 
State Bar, 377 U.S. 1 (1964); United Mine Workers v. Illinois 
State Bar Association, 389 U.S. 217 (1967); United Transporta­
tion Union v. State Bar of Michigan, 401 U.S. 576 (1971). "The 
common thread running through our decisions in NAACP v. Button, 
Trainmen and United Mine Workers is that collective activity 
undertaken to obtain meaningful access to the courts is a federal 
right within the protection of the First Amendment." United 
Transportation Union, supra, 401 U.S. at 585. Judicial injunc­
tions of "solicitation" which were far more narrowly tailored 
than the prohibition here— and which were issued after, rather

31



than before, a hearing on the fact of solicitation— have 
repeatedly been held unconstitutional. E.g., United Transporta­
tion Union, supra.

Plaintiffs' counsel are not stripped of their First Amend­
ment rights simply because they are attorneys before the bar of 
the court. Brotherhood of Railroad Trainmen, supra, 377 U.S.
1, 8. Judicial attempts to curb even broad-scale, mass-media 
dissemination of “out-of-court publications pertaining to a 
pending case," Bridges v. California, 314 U.S. 252, 268 (1941), 
have repeatedly been held unconstitutional in the absence of a 
demonstration of "clear and present danger" of "actual inter­
ference" with the conduct of the litigation, amounting to "ser­
ious ... harm to the administration of law," Wood v. Georgia,
370 U.S. 375, 384, 393 (1962). The unbroken line of cases from 
Bridges to Wood, which includes Craig v. Harney, 331 U.S. 252 
(1941); Pennekamp v. Florida, 328 U.S. 331 (1946); and In re 
Sawyer, 360 U.S. 622 (1959), ought to dispel any notion that 
lawyers are without free speech rights to talk about pending 
cases. To justify punishment (let alone prior restraint) of 
speech there must be "an imminent, not merely a likely, threat 
to the administration of justice. The danger must not be remote 
or even probable; it must immediately imperil." Craig v. Harney, 
supra, 331 U.S. at 376.

The overbroad nature of the restraint on speech is still

32



another reason the district court's order violates the First 
Amendment. The Button opinion emphasized the "danger of tolerat­
ing, in the area of First Amendment freedoms, the existence of 
a penal statute susceptible of sweeping and improper applica­
tion." 371 U.S. at 433. "Because First Amendment freedoms 
need breathing space to survive, government may regulate in the 
area only with narrow specificity." 371 U.S. at 433.

The orders of June 27 and July 19 plainly are overbroad 
in banning all meetings by counsel with the branch, irrespective 
of what is said. Mr. Marcus would be in jeopardy of contempt 
for violation of the order if he attended the meetings without 
talking at all, if he attended and spoke only of unrelated sub­
jects, if he spoke about the litigation in only the most 
restrained and proper manner, or if he limited his communica­
tion to distributing copies of public documents on file in the 
courts. Thus, the broad sweep of the order plainly prohibits 
entirely lawful First Amendment protected conduct. The orders 
plainly fail the test of "narrow specificity" required of all 
regulation in the area of First Amendment freedoms.

In the context of this case, the ban on plaintiffs' counsel 
meeting with the N.A.A.C.P. branch is a discriminatory regula­
tion of free speech which unfairly disadvantages those black 
employees who wish to be informed about the case or to oppose 
the consent decrees and seek additional relief not agreed to by

33



the defendants. The court's statement that it wished to pre­
vent what it termed "sabotage" of the settlement, establishes 
the discriminatory quality of the ban on meeting with the 
N.A.A.C.P. We submit that each black worker at Homestead Works 
has the right to oppose the settlement, to refuse to sign a 
waiver of his rights, and to ask the courts in a proper proceed­
ing to grant more relief from the pattern of systematic discrim­
ination they have suffered in violation of law. Every black 
worker has the right to meet with others to advance his point of 
view, to join an organization such as the N.A.A.C.P. which takes 
an interest in the matter, and to work collectively to advance 
his views. And every black worker at Homestead Works has the 
right to choose to hear a speech about the problem of racial 
discrimination in the United State s Steel Corporation by a law­
yer who knows something about it and who is engaged in a lawsuit 
to remedy the discrimination. And certainly every black steel­
worker at Homestead Works has the right to try to communicate 
with lawyers who purport to represent them in a class action 
involving their jobs, their salaries, their promotions, their 

back pay, and other such matters. And where such lawyers have an 
obligation under the Federal Rules of Civil Procedure to insure 
the fair and adequate representation of such black workers in 
court, it is entirely natural that black workers should seek 
information from those lawyers. All these rights are infringed

34



by the order of the court below in order to prevent "sabotage" 
of the settlement in the Alabama case.

Such a regulation of speech is so one-sided and unfair in 
its impact upon the efforts of black workers to oppose the 
defendants in the case as to constitute a denial of due process 
of law. Due process is violated by a federally imposed discrim­
ination which, if imposed by a state, would violate the Equal 
Protection Clause. Bolling v. Sharpe, 347 U.S. 497 (1954).
The discrimination is all the more evident in the context of 
the freedom of communication enjoyed by the defendants. Not 
only are the defense counsel entirely free to consult with their 
own clients in respect to any matters relevant to the conduct of 
the lawsuit, their clients also have virtually limitless oppor­
tunity to communicate with black steelworkers in the regular 
course of business at the steel plants and in the regular course 
of the conduct of union affairs. And beyond all that, the 
defendants have judicial sanction to communicate with the black 
steelworkers to explain the meaning of the consent decrees and 
at a later date to offer them sums of back pay in return for 
releases of workers' Title VII claims. Currently "implementa­
tion committee" are meeting with workers explaining the consent 
decree. We are on the verge of a judicially sanctioned "market 
place" by which the defendants propose to buy up Title VII 
rights of tens of thousands of black workers. The propriety of

35



such a procedure is at issue in the Fifth Circuit appeal from 
the consent decree. But the fact remains that black steel­
workers' vital rights are at stake and they have a plain right 
to know facts about these developments from sources other than 
the defendants who committed violations of the equal employment 

laws.
It is of some moment, perhaps, that the defendants in 

signing the consent decree still vigorously deny that they ever 
practiced discrimination. It ought to be evident that some

4black workers have a desire and a right to talk to lawyers who, 
in at least one reported case, have proved that the United 
States Steel Corporation does have a systemic pattern of discrim­
ination. See, e.g. , United States v. United States Steel- 
Corporation, 371 F. Supp. 1045 (N.D. Ala. 1973).

"The right to equal protection of the laws in the exercise 
of those freedoms of speech and religion protected by the First 
and Fourteenth Amendments, has a firmer foundation than the 
whims or personal opinions of a local governing body," Niemotkq 
v. Maryland, 340 U.S. 268, 272 (1951); Thornhill v. Alabama, 310 
U.S. 88, 97-98 (1940). The danger is always that "public authority 
with an evil eye and an unequal hand" will make "unjust and 
illegal discriminations between persons in similar circumstances," 
Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886). No government 
power, as Mr. Justice Black stated in a related free speech area, 

can
36



provide by law what matters of public interest 
people whom it allows to assemble on its streets 
may or may not discuss. This seems to me to be 
censorship in a most odious form, unconstitu­
tional under the First and Fourteenth Amendments.
And to deny this appellant and his group use of 
the streets because of their views against racial 
discrimination, while allowing other groups to 
use the streets to voice opinions on other sub­
jects, also amounts to an invidious discrimination 
forbidden by the equal protection clause of the 
Fourteenth Amendment.

Cox v. Louisiana, 379 U.S. 559, 581 (1965) (concurring opinion). 
See also, Cox v. Louisiana, 379 U.S. 536, 557 (1965)..

The unconstitutionality of the ban on meeting with the 
N.A.A.C.P. is not alleviated by the court's ruling that a meet­
ing might be permitted at some unspecified future "appropriate" 
time. We think black steelworkers have a right to decide when 
they want to learn of the status of a case affecting their rights, 
and when they want to begin to organize to oppose the company's 
efforts. They cannot be limited in these free speech and free 
association choices by any notions of the defendants that it is 
not yet necessary for them to know of the consent decree because 
the defendants are not yet ready to tender back pay to black 
workers.

37



II.

Local Rule 34(d) Is Unconstitutional On Its 
Face And As Applied In This Civil Rights Case

At issue is a rule of court requiring that no communication 
concerning the class action be made in any way by any party or 
counsel with any potential or actual class member, until such 
time as the court shall order. We submit that the rule is a 
classic instance of a provision that "casts its net across a 
broad range of associational activities" and "contains the fatal 
defect of overbreadth," United States v. Roble, 389 U.S. 258, 
265-66 (1967). The district court should not have relied on it
for this or any case.

The Constitutionally-Required Standard
The Supreme Court has emphatically declared that courts 

should show no deference to regulations impinging on First Amend­
ment freedoms. It has become axiomatic that, "precision of 
regulation must be the touchstone in an area so closely touching 
our most precious freedoms," N.A.A.C.P. v. Button, supra, 371 
U.S. at 438. The need for such an analytical perspective is 
obvious:

Our decision today simply recognizes that when 
legislative concerns are expressed in a statute 
which imposes a substantial burden on protected

38



First Amendment activities, Congress must 
achieve its goal by means which have a less 
drastic impact on the continued vitality of 
First Amendment freedoms. Shelton v. Tucker, 

cf. United States v. Brown, 381 U.S.
437 ... (1965). The Constitution and the
basic position of First Amendment rights in 
our democratic fabric demand nothing less.
United States v. Roble, supra, 389 U.S. at 
267-78.

See also, e.g., Aptheker v. Secretary of State, 378 U.S. 500, 
508 (1964); Note, The First Amendment Overbreadth Doctrine, 83 
Harv. L. Rev. 844 (1970).

Moreover, the Supreme Court has largely formulated the 
standards courts should apply when scrutinizing overbroad 
regulations of "collective activity undertaken to obtain mean­
ingful access to the courts" in the line of cases running from 
N.A.A.C.P. v. Button through United Transportation Union. See 
supra at 30-31. First, "solicitation" is not a talisman that 
makes First Amendment freedoms vanish:

We meet at the outset the contention that 
"solicitation" is wholly outside the area 
of freedoms protected by the First Amendment.
To this contention there are two answers.
The first is that a state cannot foreclose 
the exercise of constitutional rights by 
mere labels. The second is that abstract 
discussion is not the only species of com­
munication which the Constitution protects; 
the First Amendment also protects vigorous 
advocacy, certainly of lawful ends, against 
governmental intrusion. Thomas v. Collins,
323 U.S. 516, 537 ...; Herndon v. Lowry, 301 
U.S. 242, 259-264 ... Cf. Cantwell v.
Connecticut, 310 U.S. 296 ...; Stromberg v. 
California, 283 U.S. 359 ...; Terminiello v.

- 39 -

I



Chicago, 337 U.S. 1 ..
supra. 371 U.S. at 429

NAACP v. Button,

In short, government "may not, under the guise of prohibiting
professional misconduct, ignore constitutional rights," N.A.A.C.P.
v. Button, supra. 371 U.S. at 439. See also, Brotherhood of
Railroad Trainmen, supra, 377 U.S. at 6. Second, courts must
look to the actual impact of governmental regulation on First
Amendment freedoms notwithstanding that the subject of the
regulation is within the ambit of legislative competence:

The First Amendment would, however, be a 
hollow promise if it left government free 
to destroy or evade its guarantees by indi 
rect restraints so long as no law is passed 
that prohibits free speech, press, petition 
or assembly as such. We have therefore 
repeatedly held that laws which actually 
effect the exercise of these vital rights 
cannot be sustained merely because they 
were enacted for the purpose of dealing 
with some evil within the state's legisla­
tive competence, or even because the laws 
do in fact provide helpful means of deal­
ing with such an evil. United Mine Workers, 
supra, 389 U.S. at 222.

Third, there is a presumption in the area of First Amendment 
activity that "[b]road prophylactic rules ... are suspect.
See, e.g., Near v. Minnesota, 283 U.S. 697 ...; Shelton v.
Tucker, 364 U.S. 479 __; Louisiana ex rel. Gremillion v.
National Asso. for Advancement of Colored People, 366 U.S.
293 ... Cf. Schneider v. State, 308 U.S. 147, 162 ..." N.A.A.C.P,.

- 40



v. Button, supra. 371 U.S. at 938. Fourth, government must

advance a "substantial regulatory interest, in the form of 
substantial evils flowing from petitioner's activities, which 
can justify the broad prohibition which it has imposed,"
N.A.A.C.P. v. Button, supra, 371 U.S. at 44. See also, Brother­
hood of Railroad Trainmen, supra, 377 U.S. at 7-8. Fifth, in 
the area of First Amendment rights courts will hesitate to 
draw lines to save overbroad regulations:

If the line drawn by the decree between the 
permitted and prohibited activities of the 
NAACP, its members, and lawyers is an 
ambiguous one, we will not presume that 
the statute curtails constitutionally pro­
tected activity as little as possible.
For standards of permissible statutory vague­
ness are strict in the area of free expression. 
[References omitted]. N.A.A.C.P. v. Button, 
supra, 371 U.S. at 429.

Sixth, vigorous litigation against racial discrimination or in
the public interest generally is subject to a realistic appraisal,
sensitive to its unique character in our jurisprudence:

Resort to the courts to seek vindication of 
constitutional rights is a different matter 
from the oppressive, malicious, or avaricious 
use of the legal process for purely personal 
gain. Lawsuits attacking racial discrimination, 
at least in Virginia, are neither very profit­
able nor very popular. They are not an object 
of general competition among Virginia lawyers; 
the problem is rather one of an apparent dearth 
of lawyers who are willing to undertake such 
litigation. ... We realize that an NAACP lawyer

- 41



must derive personal satisfaction from partici­
pation in litigation on behalf of Negro rights, 
else he would hardly be inclined to participate 
at the risk of financial sacrifice. But this 
would not seem to be the kind of interest or 
motive which induces criminal conduct. N.A.A.C.P. 
v. Button, supra, 371 U.S. at 443-44.

See also, Brotherhood of Railroad Trainmen, supra. 377 U.S. at 7.
It is these standards that this Court must apply to the

face of Local Rule 34(d). To do otherwise is to forsake the
special place the Supreme Court has recognized for the exercise
of First Amendment freedoms to advance judicial resolution of
great social controversies and the rule of law.

The Title VII Action Context
One other preliminary matter deserves mention: This

Court cannot but be struck that this overbreadth issue arises 
in the specific factual context of a class action suit author­
ized by Title VII of the Civil Rights Act of 1964. A less 
likely setting for the district court to blind itself to First 
Amendment command can hardly be conceived of. For to do so 
is also to blind oneself to high public policy favoring 
vigorous prosecution of employment discrimination actions.
Clearly, fear of ambulance-chasing and kindred concerns are, 
at the very least, irrelevant. There has never been the slightest 
suggestion that plaintiffs' counsel have solicited any clients 
in this case.

42



The American Bar Association has long held that the 
ordinary rules against solicitation are to be relaxed when 
litigation is "wholesome and beneficial," ABA COMM. ON PROFES­
SIONAL ETHICS, OPINIONS, No. 148, at 311 (1935); and the Con­
gress of the United States has determined to encourage 1964 
Civil Rights Act litigation in general, and Title VII litigation 
in particular, by authorizing awards of attorney’s fees for 
that very purpose. See Newman v. Picrcrie Park Enterprises, Inc., 
390 U.S. 400, 401 (1968); Schaeffer v. San Diego Yellow Cabs, 
Inc.. 462 F.2d 1002, 1008 (9th Cir. 1972); Robinson v.
Lorillard Corp., 444 F.2d 791, 804 (4th Cir.), cert, dismissed, 
404 U.S. 1006 (1971); Lea v. Cone Mills, 438 F.2d 86, 88 (4th 
Cir. 1971); Johnson v. Georgia Highway Express, 488 F.2d 714 
(5th Cir. 1974).

A plaintiff's attorney who handles a class action Title 
VII case with no other arrangement for, or prospect of, finan­
cial remuneration than court-ordered attorney's fees, would 
therefore plainly be permitted to solicit additional named 
plaintiffs under the familiar principles of, e.g., ABA COMM. ON 
PROFESSIONAL ETHICS, OPINIONS, No. 148 (1935); ABA COMM. ON 
PROFESSIONAL ETHICS, INFORMAL OPINIONS, No. 992 (1967); ABA
COMM. ON PROFESSIONAL ETHICS, INFORMAL OPINIONS, No. 888 (1965)

43



ABA COMM. ON PROFESSIONAL ETHICS, INFORMAL OPINIONS, No. 786
(1964); see also, D.C. BAR ASSN. COMM. ON LEGAL ETHICS AND 
GRIEVANCE, REPORT (January 26, 1971), holding that advertise­
ments giving legal advice and offering free legal services 
were not improper solicitation; cf. N.A.A.C.P. v. Patty, 159 
F. Supp. 503, 522 (E.D. Va. 1958); In re Ades, 6 F. Supp. 467 
(D. Md. 1934), and could not constitutionally be restrained 
from doing so under the line of First Amendment cases running 
from N.A.A.C.P. v. Button, 371 U.S. 415 (1963), to United 
Transportation Union v. State Bar of Michigan, 401 U.S. 576 
(1971). This is particularly so inasmuch as it is the court 
which will eventually determine whether and how substantial 
a fee the attorney should receive at the conclusion of the 
litigation, and inasmuch as the amount of that fee would not

3/
oridinarily be affected by the number of named plaintiffs.

Moreover, plaintiffs in Title VII litigation often serve 
as class representatives, but always as "private attorneys 
general" who have donned the mantle of the sovereign. See 
Newman v. Pig-gie Park, supra, 390 U.S. at 401-02; Huff v. Cass Co.,

3/ There is no claim that plaintiffs' counsel have done any 
soliciting of clients. Counsel can obviously have no monetary 
interest in increasing the number of named plaintiffs in Title 
VII cases where fees are not paid by the client but are taxed 
as costs to the defendants. See 42 U.S.C.A. § 2000e-5(k);

44



485 F.2d 710 (5th Cir. 1973) (en banc); Jenkins v. United Gas
Corp., 400 F.2d 28, 32-33 (5th Cir. 1968). Because the broad 
terms of Local Rule 34(d) apply to Title VII class actions, 
not to speak of other "lawsuits authorized by Congress to 
effectuate a basic public interest," Brotherhood of Railroad 
Trainmen, supra, 377 U.S. at 7, as much as any other, the rule 
is perforce unconstitutionally overboard. United States v. 
Roble, supra, 389 U.S. at 265-66. Although a mandamus should 
issue on this showing alone, Sanders v. Russell, supra, never­
theless we deomonstrate in the next section that Local Rule 
34(d) is unconstitutionally overbroad irrespective of the 
specific context in which the overbreadth issue arises.

3/ Continued
Malone v. North American Rockwell Corp., 457 F.2d 779, 781 (9th 
Cir. 1972). The amount of fees depends only in part on the 
amount of any award secured (Clark v. American Marine Corp., 320 
F. Supp. 709, 710, 712 (E.D. La. 1970), aff'd. 437 F.2d 959 
(5th Cir. 1971), Johnson v. Georgia Highway Express, 488 F.2d 714 
(5th Cir. 1974), and the amount of the award is ordinarily not 
affected by the number of clients retaining the particular 
attorney, since in Title VII actions the class representative 
may obtain back pay for non-party class members. Robinson v. 
Lorillard Corp., 444 F.2d 791, 802, n. 14 (4th Cir.), cert. 
denied, 404 U.S. 1006 (1971).

Even in a fee generating case, in a commercial rather than 
a civil rights context, it has been noted that the lack of any 
monetary interest of an attorney in addition to named plaintiffs 
largely eliminates the ethical objections to his soliciting them. 
Halverson v. Convenient Food Mart, Inc., 458 F.2d 927, 931 
(7th Cir. 1972).

45



Application of the Constitutionally-Required 
Standard to Local Rule 34(d)

Local Rule 34(d) is an absolute prior restraint on any 
communication, however innocent or unrelated to the class

4/
action, between the parties and potential or actual class 
members, not formally parties to the action. Any communication 
is at the absolute discretion of the district court. There is 
no doubt that such restraint is in violation of the specific 
First Amendment overbreadth standards set forth by the Supreme 
Court for regulation of collective resort to the courts. 
Moreover, we need not reiterate our previous discussion of 
failure to pass First Amendment muster as a prior restraint. 
Supra at 26, et seq.

As to overbreadth, "solicitation" is not a talisman that 
makes First Amendment freedoms vanish, supra at 39-40. While 
it is doubtlessly within the power of the judges of the Western 
District to regulate some abuses, this, too, is no impediment

4/ That the district court has limited any communication between 
plaintiffs' counsel and black Homestead steelworkers and the 
objection raised by a steel company lawyer to the presence of 
an observer at a consent-decree-mandated meeting as "communication 
by conduct" (App. 277dd - 277ee) make clear that the ostensible
limitation in scope of Local Rule 34(d) to communication "concerning 
such actions" is no limitation at all. It is, of course, not the 
office of this Court to narrowly construe such ambiguous language 
to save the rule when First Amendment rights are at stake.
N.A.A.C.P. v. Button, supra, 371 U.S. at 429.

46



to judicial scrutiny of actual impact on First Amendment 
freedoms, supra at 40. As this rule is nothing if not a "broad 
prophylactic rule" it is suspect as impingement on First 
Amendment activity, supra at 40-41. The rule, as such, states 
no reasons advancing a specific "substantial regulatory interest" 
concerning judicial administration nor is one inferable, supra 
at 41. Even if such an interest is assumed arguendo to exist, 
there is no indication, much less demonstration, that this 
obliterating rule is a "less drastic alternative" to, for 
instance, a specific rule tailored to a known abuse or a case 
by case adjudication under authority conferred by Rule 23(d)
Fed. R. Civ. P., supra at 38-39. It is impossible to imagine 
where this Court could draw lines to save this rule, so com­
prehensive is its scope, supra at 41. There is no chance that 
this Court could uphold this rule consistent with a realistic 
appraisal of the irrelevance of considerations of ambulance­
chasing to civil rights advocacy, supra at 41-42.

This Court may also take notice that regulation of com­
munication between class representatives or counsel and potential 
or actual members of a class is novel and its constitutionality 
untested. Local Rule 34(d) was itself adopted by the Western 
District only in January, 1973, and became effective on April 
15, 1973. No other case appears to have arisen concerning

47



the Rule. No other district in this Circuit has such a rule. 
And certainly this Court has not previously been confronted 
with the Rule.

Research reveals that only five other federal districts
6/

have any rule regulating communication in class actions.
One of the rules only forbids solicitation by formal parties
requesting a class member to opt out of a Rule 23(b)(3) class

2/action. In contrast, Local Rule 34(d) is a blanket prohibi­
tion of communication unrelated to a specific evil. The four
others partially codify Suggested Local Rule No. 7 in the

8/
Manual for Complex Litigation (1973). Suggested Local Rule 
No. 7 is in turn derived from § 1.41 "Preventing Potential 
Abuse of Class Actions" in the Manual. All the local rules 
based on Suggested Local No. 7 specifically enumerate

5/

5/ Cf. an order entered in DiCostanzo v. Chrysler Corp.,
15 Fed. R. Serv.2d 1248 (E.D. Pa. 1972).
6/ Local Rule 19B, S.D. Florida; Local Civil Rule 22, N.D. 
Illinois; Local Rule 6, S.D. Texas; Local Rule C.R. 23(g)
W.D. Washington; Local Rule 20, D. Maryland.
7/ Local Rule 20, D. Maryland.
8/ See, e.g., Local 734 Bakery Drivers Pension Fund Trust v. 
Continental Illinois Nat11 Bank and Trust Co., 57 F.R.D. 1,
2 (N.D. 111. 1972).

48



kinds of communication the rule is supposed to cover. While 
not exhaustive, such an enumeration presumably provides guidance 
for district courts and a statement of reasons for the rule. 
Local Rule 34(d), of course, contains no such enumeration. All 
the rules derived from Suggested Local Rule No. 7 contain the 
express proviso, "All other ethical, legal and equitable obliga­
tions are unaffected by this rule." No such escape clause is
present in Local Rule 34(d). All the Suggested Local Rule No. 7

10/
derivations, save one, contain two express exceptions to the

11/prohibition of communication. Local Rule 34(d) contains no

1/

9/ "The communications forbidden by this rule, include, but 
are not limited to, (a) solicitation directly or indirectly of 
legal representation of potential and actual class members who 
are not formal parties to the class action; (b) solicitation 
of fees and expenses and agreements to pay fees and expenses, 
from potential and actual class members who are not formal 
parties to the class action; (c) solication by formal parties 
to the class action of requests by class members to opt out 
in class actions under subparagraph (b)(3) of Rule 23, F.R.
Civ. P.; and (d) communications from counsel or a party which 
may tend to misrepresent the status, purposes and effects of 
the action, and actual or potential Court orders therein, which 
may create impressions tending, without cause, to reflect 
adversely on any party, any counsel, the Court, or the administra­
tion of justice. The obligations and prohibitions of this 
rule are not exclusive. . ."
10/ Local Rule 6, S.D. Texas.
11/ "This rule does not forbid (1) communications between an 
attorney and his client or a prospective client, who has on 
the initiative of the client or prospective client consulted 
with, employed or proposed to employ the attorney; or (2) com­
munications occurring in the regular course of business or in

49



exceptions whatsoever. It is quite clear that Rule 34(b) is
uniquely restrictive, even among the small number of related

12/
federal district rules. Moreover, under the N.A.A.C.P. v.

11/ Continued
the performance of the duties of a public office or agency 
(such as the Attorney General) which do not have the effect 
of soliciting representation by counsel or misrepresenting 
the status, purpose or effect of the action and orders 
therein. (Emphasis added.)
12/ It is instructive to note § 1.41 contemplates that pre­
venting potential abuse of class actions shall not thwart 
"normal and ethically proper processing of a case" lest due 
process be infringed:

The recommended preventive action, whether 
by local rule or order, is not intended to be 
either a permanent or an absolute prohibition 
of contact with actual or potential class mem­
bers. Promptly after the entry of the recom­
mended order, or the applicable date of the local 
rule in a case, and at all times thereafter, the 
court should, upon request, schedule a hearing 
at which time application for relaxation of the 
order and proposed communications with class 
members may be presented to the court. Since 
the recommended rule and order are designed 
to prevent only potential abuse of the class 
action and are not meant to thwart normal and 
ethically proper processing of a case, the 
court should freely consider proposed communi­
cations which will not constitute abuse of the 
class action. In many such cases, the class 
members will have knowledge of facts relevant 
to the litigation and to require a party to 
develop the case without contact with such wit­
nesses may well constitute a denial of due 
process.

There will normally be some need for 
counsel to communicate with class members

50



' 1
I t

Button standard Suggested Local Rule No. 7 is unconstitutional 
as well.

12/ Continued
on such routine matters as answering factual 
inquiries and developing factual matters in 
preparation for the class action determina­
tion as well as for trial. In order that 
there might be some minimal judicial control 
of these communications, it is suggested 
that ex parte leave may be given by the 
court. If requesting counsel is at a dis­
tance from the court, the request may be 
handled by telephone.

No such cautionary note is present in Local Rule 34(d). This 
fact is underlined by the district court rulings that have 
exactly the unintended effect on the normal processing of this 
case. See infra at 57, et seq.

51



III.
The Orders of the District Court Restricting 
Communications with Individual Class Members 
Are Unconstitutional.

The orders of the district court which restrict communica­
tions between plaintiffs' counsel and individual class members 
violate constitutional protections of free speech and associa­
tion, and the right of counsel, including particularly the 
right to privacy of association. The requirement of prior 
disclosure of the fact of communication by affidavit in the 
case of class members who seek out the lawyers prevent such 
class members from consulting or aiding the lawyers in private 
and makes any cooperation with plaintiffs known to their employ­
ers. The requirement for prior disclosure in the case of every 
individual black worker whom counsel wish to contact in an 
effort to learn facts carries with it a similar infringement 
of private communication, for the order requires that before 
talking with workers to get evidence, counsel must first show 
what they expect to learn from each worker.

Such prior disclosure procedures cannot but have detrimental 
effect on any meaningful exchange between counsel and a black 
steelworker, whether he be a potential client or informant.
Little imagination is required to perceive that a potential 
client or informant would be loath to approach counsel by running

52



f

such a gauntlet. Even the bare fear of reprisal would imperil 
association:

It is hardly a novel perception that compelled 
disclosure of affiliation with groups engaged 
in advocacy may constitute [an] effective ... 
restraint on freedom of association ... This 
Court has recognized the vital relationship 
between freedom to associate and privacy in 
one's associations. ... Inviolability of pri­
vacy in group association, may in many circum­
stances be indispensable to preservation of 
freedom of association, particularly where a 
group espouses dissident beliefs. NAACP v.
Alabama ex rel. John Patterson, 357 U.S. 449,
462 (1958).

The rule is that, "Freedom [of speech, press and association] 
are protected not only against heavy handed frontal attack, but 
also from being stifled by more subtle governmental interfer­
ence, " Bates v. Little Rock. 361 U.S. 516, 523 (1960); Shelton 
v. Tucker, 364 U.S. 479 (1960); Gibson v. Florida Legislative 
Investigative Committee, 372 U.S. 539 (1963). Moreover, Congress
has specifically expressed its concern for retaliation against

13/
employees who complain of employment discrimination. Communi­
cation between counsel and black steelworkers with such a

13/ Congress had not only made it unlawful for employers to 
retaliate against workers who invoke Title VII (42 U.S.C. 2000e- 
3(a)), it has also amended the statute to shield workers from 
retaliation by enabling others to file charges on their behalf.
42 U.S.C. 2000e-5(b). See Legislative History of the Equal 
Employment Opportunity Act of 1972, p. 1845 (H.R. 1746, P.L.
92-261) (Government Printing Office 1972), wherein the Conference 
Committee Report described the purpose to "enable aggrieved per­
sons to have charges processed under circumstances where they are 
unwilling to come forward publicly for fear of economic or physical 
reprisals." C£. Pettway v. American Cast Iron Pipe Co., 411 F.2d 
998 (5th Cir. 1969).

53



condition attached is tantamount to denial of any right of 
association. The district court orders deny the vital "breath­
ing space" which First Amendment freedoms need to survive.
Button, supra, 371 U.S. at 433. There is no compelling interest 
of the court which requires this invasion of the right of private 
consultation between lawyer and client, or lawyer and potential 
witness or informant.

In addition to violating free speech rights, the orders 
impose an unacceptable restriction on the right of access to 
counsel on the one hand, and a crippling interference with the 
ability of counsel to present a case on the other hand.

Surely black steelworkers do have a right to counsel of 
their own choice to protect their important employment rights. 
When black steelworkers seek to consult Mr. Marcus and his asso­
ciates they seek to exercise "the right of individuals and the 
public to be fairly represented in lawsuits authorized by Con­
gress to effectuate a basic public interest." Brotherhood of 
R. Trainmen v. Virginia, 377 U.S. 1, 1 (1964). And as that 
opinion went on to state, "laymen cannot be expected to know 
how to protect their rights when dealing with practiced and
carefully counselled adversaries, __" (ibid.). Indeed, the
right to be heard by counsel of one's own choice has been called 
"unqualified." Chandler v. Fretag, 348 U.S. 3, 9 (1954). In 
Powell v. Alabama, 287 U.S. 45, 69 (1932), the Court said:

54



If in any case, civil or criminal, a state 
or federal court were arbitrarily to refuse to 
hear a party by counsel, employed by and 
appearing for him, it reasonably may not be 
doubted that such a refusal would be a denial 
of a hearing, and therefore of due process in 
the constitutional sense.

In employee—employer relations an interference with the
employee's right to consult an attorney without the fact of 
consultation being known to the employer may destroy the right 
to consult a lawyer at all. Certainly, the affidavit procedure 
which was imposed by the court below in an extemporaneous
fashion in response to the company's request substantially bur­
dens the right of black steelworkers to access to counsel. And 
plainly in the context of hotly contested litigation the steel 
company's reason for requesting individual identification of 
every black steelworker who talks to Mr. Marcus and his col- 
Ig^gues is the perceived advantage to be obtained in the litigation.

The other procedure imposed by the court below in September 
1973 and reaffirmed by the July 19 order requires plaintiffs 
to identify in advance every worker they seek to communicate 
with and set forth in advance what facts they expect to learn 
from the worker. This procedure makes it manifestly impossible 
for plaintiffs' counsel to conduct general inquiries in the hope 
of learning facts about which they have no previous knowledge.
And, of course, in Title VII litigation, as in other fields, the 
unexpected facts may often make a difference in the understanding

55



of a case. Plaintiffs' counsel are also placed at an unfair 
disadvantage because they are deprived of the opportunity to 
canvass large groups of employees for helpful factual data, 
and the help of employees too timid to aid plaintiffs publicly 
and risk the wrath of supervisors or trade-unionists hostile 
to the plaintiffs' request for relief. The order even 
deprives plaintiffs' counsel of a chance to get anonymous tips 
from black workers about company practices which might be 
developed into relevant evidence. It deprives counsel of any 
opportunity to learn the attitudes of class members about pro­
posed forms of relief.

Plaintiffs submit that rather than restricting the contact 
of lawyers in Title VII class actions with class members, 
justice and the policies of Title VII would be better served 
by rules of court requiring lawyers to have sufficient contact 
with class members to adequately represent their viewpoint.
The failure to communicate makes it less likely that counsel 
can fully and adequately represent class interests.

56



IV.
The Order Staying All Proceedings Violates 
Plaintiffs' Rights to Due Process and Their 
Rights Under Title VII of the Civil Rights 
Act of 1964.

The decision below bringing the Rodgers case to a halt for 
at least six months because of the Alabama consent decrees 
denies plaintiffs and their class due process of law. They sub­
stantially impair their rights on the basis of the government 
consent decrees although plaintiffs were not parties to the 
consent decrees which were entered without affording them notice 
or a hearing. Hansberrv v. Lee, 311 U.S. 32 (1940). They also 
violate plaintiffs' rights under Title VII to maintain their 
litigation unimpaired by any suits brought by the Equal Employ­
ment Opportunity Commission. Williamson v. Bethlehem Steel Co., 
468 F.2d 1201 (2nd Cir. 1972). The following pages demonstrate 
how plaintiffs are being "whipsawed" by conflicting rulings in 
the Alabama and Pennsylvania cases. wJudge Teitelbaum made a decion on June 27 to put the 
case "in limbd* until at least January 15, 1975. This halts

14/ The differing recollections between plaintiffs' counsel 
and the judge about whether this ruling had been indicated 
earlier are not material, for it is clear that June 27 was the 
first time such a ruling was stated on the record. Whatever 
the prior comments were, they were "off the record" comments 
at the April 24 conference which do not appear in the transcript.

57



all discovery, including plaintiffs' computer analysis of 
company records, and prevents plaintiffs from getting the case 
ready for trial. It also continues the court’s refusal to 
rule on plaintiffs' long standing and repeated requests for a 
determination that the case can be maintained as a class 
action.

The rationale for the decision to halt all activity in 
the Rodgers case is the district judge's conclusion that the 
Alabama consent decree might make the Rodgers case moot. The 
colloquy on June 27:

THE COURT: We were going to hold everything
in limbo until January 15th to find out what was 
going to happen in the south, and then we would 
see what we were going to do after we found out 
where we were.

MR. MARCUS: I'm sorry if I misunderstood.
We would object to having to wait until January 
15th.

THE COURT: That's what I said, and that's
what I meant, and that's what I still mean.
It seems to me to go forward in two different 
areas when it might be moot as a result of what 
might happen as a result of a consent decree 
is an unusual expenditure of money and a waste 
of your time and mine. (App. 175a)

Later in the conference, there was a further relevant exchange
MR. GOLDSTEIN: For clarification, is the

Court's sole reason for not ruling on the dis­
covery motion there is this pending consent 
decree in Alabama and the Court wants to see 
the results from that consent decree before 
ruling on further discovery on this matter?

58



THE COURT: You asked if that is the sole
reason. That is a reason. Not the sole reason.

MR. SCHEINHOLTZ: There are other reasons
which I haven't gone into.

MR. MARCUS: We feel that the results of the
entry of those consent decrees may not be known 
by January 15th in which case —

THE COURT: We will face it then. (App. 188a)
At the conference on July 19, Judge Teitelbaum declined 

to rule on plaintiffs' objections to letters being sent by the 
steel company to plaintiffs' class in the Rodgers case, and 
said he would take the same view of future similar matters, 
because they were controlled by Judge Pointer's case:

THE COURT: I'm not deferring [sic, "refer­
ring"?] them. That would be presumptuous. It 
is his case, and whatever he does with it is 
all right with me even though it has an indirect 
effect on the case before this Court. I con­
sider that to be the controlling case, not the 
one here in Pittsburgh.

MR. SCHNAPPER: As to any disagreements we
may have as to the notice or requests, that will 
be taken up with Judge Pointer.

THE COURT: Exactly. His case controls
this situation. I don't want to do anything in 
any way to affect it. All I'm suggesting is 
that we are not talking about the merits. I'm 
saying this is more proper for Judge Pointer.

MR. MARCUS: I assume, also, about the
tender of back pay, there is no sense bothering 
Your Honor with that issue when you ruled that 
everything would be deferred to Judge Pointer, 
and that would be, also.

THE COURT: It may control this case, and
I don't intend to interfere a bit. I defer to 
him. I don't want to do anything. (App. 267a-268a)

59



When plaintiffs first learned of the consent decrees they 
perceived the danger they posed to the pending Rodgers case. 
Accordingly, plaintiffs sought limited intervention in the 
Alabama litigation for the purpose of protecting their rights 
in the Rodgers litigation. They argued before Judge Pointer 
that the consent decrees were designed and intended to impair 
their rights and were going to be used by the defendants in 
efforts to circumvent Williamson, supra. They argued that the 
consent decrees were unlawful because they were entered on the 
same day suit was filed without notice or hearing for plaintiffs 
in violation of their Due Process rights and the doctrine of 
Hansberry, supra. Judge Pointer's opinion of June 7, 1974 (App. 
356a-364a) responded to this argument by ruling that the consent 
decree "between the government and the cfefendants does not pur­
port to bind any individual employee or to prevent the institution 
or maintenance of private litigation" (App. 357a). The court 
carefully noted that intervention was for a limited purpose and 
that "... the court does not consider that such intervenors, or 
any class which they may represent, are at present bound, as a 
matter of res judicata or collateral estoppel, to the terms of 
the consent decrees themselves" (App. 359a). Judge Pointer 
acknowledged the danger that the consent decrees could improperly 
affect litigants such as Rodgers and Turner, but said that future

60



orders of his court and other courts would prevent misuse of 
the consent decrees. He wrote:

The court does recognize that these decrees 
may, as a practical matter, impede, if not 
impair, some interests of private litigants.
Indeed, it must be assumed that concessions 
during settlement negotiations were motivated 
in part by the desire of the parties to avoid, 
by anticipatory corrections, future litigation 
and to provide more expeditious solutions even 
in matters already in the judicial processes.
Justice delayed may, it is said, be justice 
denied. Moreover, it must be kept in mind that 
resolution in this forum of issues between the 
government and the defendants does not pre­
clude additional— or even inconsistent— relief 
in favor of private parties in other litiga­
tion. As stressed by Congress in the passage 
of Title VII and its amendments, settlement 
offers the principal hope for rapid correction 
of the ills of employment discrimination,ppre- 
serving, however— as here— the right to liti­
gate where the persons aggrieved are not parties 
to the conciliation agreement and believe the 
settlement to be unsatisfactory.

Some of the wording of the consent decrees 
may on its face improperly affect the maintenance 
of private actions. For example, the decrees pro­
vide for mailing of back-pay notices even to those 
involved in pending litigation as named plaintiffs 
or as determined or putative class members. In 
view of the court's retained powers and in view 
of the presence of the parties to this litigation 
before other forums, such problems, as they are 
identified, can be satisfactorily resolved, and no 
doubt there will be a need from time to time for 
liaison and co-ordination between this court and 
other forums. ... (App. 361a)

Judge Pointer's opinion of July 17, 1974, denying a stay of parts 
of the consent decrees pending appeal, reiterates that:

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... this court does not consider that the 
consent decrees entered herein in any way bind 
either the private plaintiffs involved in 
other pending litigation or the courts in which 
such litigation is pending. This court does 
not assume that there will be a lack of full 
and fair consideration by other courts of the 
issues before the, or a failure to grant such 
relief as is warranted. (App. 367a-368a)

The opinion goes on to assert that back pay releases will
not halt other pending cases, and to assure that liaison among
the courts will deal with "future complications":

Movants, while contending that the back-pay 
releases are legally invalid, argue that contin­
uing with the Decree-created timetables respect­
ing back-pay will have various adverse effects 
upon other pending litigation. Assuming, 
arguendo, that the proposed back-pay releases 
should be declared invalid by the Fifth Circuit, 
there is no suggestion that all minority steel­
workers will sign such releases or that there 
may be a lack of class representatives to pursue 
pending or future litigation. Additionally, 
while some class members may choose to execute 
a back-pay release in exchange for a tender of 
immediate back-pay, such would not prevent con­
tinued litigation by the existing class repre­
sentatives. While the anticipated mailings 
regarding back-pay may present some complicating 
factors respecting other pending cases, such 
was fully considered by this court in the opinion 
of June 7, with the conclusion that liaison and 
coordination between this court and other forums 
can, as a practical matter, resolve any future 
complications. ... (App. 369a-370a)

This expectation of coordination among the courts has been 
disappointed as far as the Rodgers case is concerned. Judge 
Pointer's July 23 statement (reported to Judge Teitelbaum) shows 
that delay of Rodgers is not at his request:

62



THE COURT: I would say this, that proceeding
with discovery in that litigation would not, in 
my judgment, interfere with the implementation of 
the consent decree.

I think it's purely a matter for discretion 
by the Court there and I can understand how a 
ruling either way could be made in the exercise 
of that discretion.

MR. MARCUS: Does that apply also to class
certification?

THE COURT: Yes, also applies to class certi­
fication. (App. 519a-520a)

Judge Teitelbaum's position that the Rodgers case may become 
moot because of the consent decrees is in error for a number of 
reasons, including those mentioned by Judge Pointer in his opin­
ions quoted above.

First, Congress quite deliberately preserved the right of 
aggrieved workers to maintain their suit under Title VII entirely 
independent of any suits brought by the E.E.O.C. and rejected 
efforts to abolish the private remedy. The Second Circuit so 
held in Williamson v. Bethlehem Steel Corp., 468 F.2d 1201, 
1203-1204 (2nd Cir. 1972), a leading case protecting private 
Title VII claims from being preempted by government lawsuits:

For purposes of res judicata or collateral 
estoppel, the private citizens in this case 
are not bound by the Attorney General's action 
in the former case since they neither were 
parties to it, NLRB v. Lannom Manufacturing 
Co., 226 F.2d 194, 199 (6th Cir. 1955), rev'd 
on other grounds sub nom. Amalgamated Meat 
Cutters v. NLRB, 352 U.S. 153, 77 S.Ct. 159,
1 L.Ed.2d 207 (1956), nor have interests such 

» as to be in privity with the Attorney General.

63



Cf. Trbovich v. United Mine Workers, 404 U.S.
528, 538-39, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972) 
(intervention by union members permitted in 
Labor-Management Reporting and Disclosure Act 
litigation brought by the Secretary of Labor). 
Therefore, the judgment in the previous case 
does not have conclusive force here. See 
Restatement of Judgments § 93 et seq. (1942);
IB J. Moore, Federal Practice 5 0.411[1] (2d
ed. 1965). See also Hartford Accident & Indemnity 
Co. v. Jasper, 144 F.2d 266, 267 (9th Cir. 1944). 

i
*  *  *

Under Title VII since its inception, more­
over, the individual has played a significant 
role in its enforcement. Jenkins vj United 
Gas Corp., 400 F.2d 28, 32 (5th Cir. 1968).
This is equally true after the amendment of 
Title VII by the Equal Employment Opportunity 
Act of 1972, 1972 U.S.Code Cong. & Admin. News, 
p. 814 et seq. While the 1972 amendments 
authorize the Equal Employment Opportunity Com­
mission to bring a Title VII suit in the name 
of the Government, individuals party to Commis­
sion conciliation proceedings in the same 
action may intervene in such suits, and in 
those brought by the Attorney General, id.
§ 706(f)(1), 1972 U.S.Code Cong. & Admin. News, 
pp. 817-18, and presumably individuals not 
party to the Commission proceedings may insti­
tute a suit despite any legal action taken by 
the Commission or the Attorney General.

The purpose of permitting the individual 
who has been discriminated against to seek

2. Not insignificantly, in debating the Equal
Employment Opportunity Act, Congress refused 
to make Title VII the exclusive statutory 
basis for private suits against employment 
discrimination and continued to allow suits 
to be brought, for example, under Section 1 
of the Civil Rights Act of 1866, 42 U.S.C.
§ 1981. See 118 Cong. Rec. S1524-26 (daily 
ed. Feb. 9, 1972); id. at S1791-97 (daily 
ed. Feb. 15, 1972).

64



relief where the Government has omitted to do so 
— possibly for reasons such as its lack of know­
ledge, legal strategy, or lack of enforcement 
staff— is plainly to make certain that the indi­
vidual employee is protected.

Second, as Judge Pointer said in his July 17 opinion on 
the stay application, the execution of back pay releases by 
some class members should not prevent continued litigation by 
others to obtain injunctive relief for all (App. 369a). in
Judge Pointer’s court even the steel company's lawyer agreed 
to this proposition at the May 20, 1974, hearing (Tr. 184-185)

MR. MURRAY: * * *
Second, I think it is agreed there is no 

estoppel or res judicata that appears in all 
the briefs. I think all parties are in agree­
ment. I think if an individual signs a 
release, he will then be bound by the terms 
of that release.

THE COURT: Would that prevent him as you
envision it from taking advantage of relief 
obtained by some other person that did' not 
sign the release?

MR. MURRAY: You mean if another person
sought and obtained additions in the way of 
systemic relief?

THE COURT: Right.
MR. MURRAY: I think that is a plus he

gets free.
THE COURT: So you say it would not pre­

vent him from taking benefits of such?
MR. MURRAY: I don’t think it would. I

think it is just another free option he gets 
by what we have tried to do.

65



Third, the proposed waivers of Title VII rights will be 
invalid and ineffectual as against public policy. The proposed 
waivers under the consent decree are in part prospective and 
thus conflict with the recent holding of the Supreme Court in 
Alexander v. Gardner-Denver Company. 39 L.Ed.2a 147, 160 
(1974) :

To begin, we think it clear that there can 
be no prospective waiver of an employee's rights 
under Title VII. * * * Title VII, on the other 
hand, stands on plainly different ground; it con­
cerns not majoritarian processes, but an indi­
vidual's right to equal employment opportunities. 
Title VII's strictures are absolute and repre­
sent a congressional command that each employee 
be free from discriminatory practices. Of neces­
sity, the rights conferred can form no part of 
the collective-bargaining process since waiver 
of these rights would defeat the paramount con­
gressional purpose behind Title VII. in these 
circumstances, an employee's rights under Title 
VII are not susceptible to prospective waiver.
See Wilko v. Swan, 346 U.S. 427, 98 L.Ed. 168,
74 S.Ct. 182 (1953).

To be sure, in the next paragraph the court said in dicta; 
... presumably an employee may waive his cause of action under 

Title VII as part of a voluntary settlement. ..." But as the 
court noted, no such issue was present in Alexander. The 
Supreme Court's decision in two Fair Labor Standards Act cases, 
rejecting compromise of statutory back pay claims as against 
public policy, cast great doubt on the validity of attempted 
waivers of Title VII back pay claims. See Schulte v. Gangi.
328 U.S. 108 (1946), and Brooklyn Savings Bank v. O'Neil. 324

66



U.S. 697 (1945). The legislative policy against waivers under
Title VII is even stronger than that under the Fair Labor 

15/
Standards Act. It is against public policy to permit 
employers to use their superior economic power in bargaining 
with individual black workers, to avoid fulfillment of the statu 
tory duty to fully compensate victims of discrimination.

Fourth, the fact that the consent decree limits back pay 
awards to a smaller class than that sought to be represented 
by Rodgers and Turner also obviates mootness. Back pay tenders 
will be made only to blacks employed prior to January 1, 1968, 
and either still employed at the time of the consent decree, or 
retired within two years before the decree. This ignores the 
claims of black workers employed prior to 1968, but retired 
between 1968 and 1972. It also ignores claims of workers first 
employed after January 1, 1968, but subjected to the company’s 
discriminatory practices. See App. 42a-43a.

The halting of all proceedings in Rodgers despite the 
invalidity of mootness, threatens substantial harm to plain­
tiffs and many members of their class. The refusal to decide

15/ The Fair Labor Standards Act cases cannot be distinguished 
the ground that FLSA pay claims are often— but not always— more 
easily established. Title VII back pay claims are perhaps not 
simple to calculate, but they are not inherently incalculable—  
like pain and suffering claims might be. Title VII back pay 
calculations rest on pay scales, hours worked and similar 
objective factors just as they do in FLSA cases.

on

67



whether the case can be maintained as a class action subjects 
plaintiffs to all the disabilities of the court's rule against 
communication (discussed above), without granting plaintiffs 
any of the advantages of class representation. It is also in 
violation of Title VII's command that the case be expedited.

The stay threatens to destroy the claims of many black 
workers because the steel company plans to tender back pay to 
black steelworkers and obtain releases of their Title VII claims 
in the interim. Black steelworkers will have the option to 
accept or reject the amount offered on a take-it-or-leave-it 
basis within 30 days. They must make the decisions without the 
advice of legal counsel familiar with the case; any access to 
plaintiffs' counsel is limited by the rule and orders restrict­
ing communications. They will be subject to persuasion in 
meetings from which plaintiffs' attorneys are excluded. Even a 
waiver subsequently found invalid will deter future claims by 
making litigation more difficult.

Moreover, workers must make their choice without knowing if 
a litigated class action in which they can contest the offers 
will be available, because of the court's refusal to make a 
class determination. The delay, therefore, increases the sub­
stantial likelihood that black workers, without access to counsel, 
will be overreached and surrender their just claim in return for

68



a back pay offer representing only a fraction of what they might 
obtain when the Rodgers case proceeds to judgment.

The stay has also halted plaintiffs' computerized discovery 
and other investigation. This interferes with the attorneys' 
ability to properly evaluate individual settlement offers and 
give satisfactory advice to those class members who do seek 
advice. Thus, black workers will be denied such basic informa­
tion as a calculation of the company's potential back pay 
liability in appraising the settlement offer. They will not even 
know how many cents on the dollar the company is offering them. 
The injustice of the entire arrangement is, of course, compounded 
by the fact that the take-it-or-leave-it offer will remain open 
for only 30 days.

The order of the district court stopping all activity in 
this Title VII case, which was filed in 1971, is in violation 
of an express provision of the statute. 42 U.S.C. §§ 2000e-5 
(f)(4) and (5) provide:

(4) It shall be the duty of the chief judge 
of the district (or in his absence, the acting 
chief judge) in which the case is pending imme­
diately to designate a judge in such district 
to hear and determine the case. In the event 
that no judge in the district is available to 
hear and determine the case, the chief judge 
of the district, or the acting chief judge, as 
the case may be, shall certify this fact to the 
chief judge of the circuit (or in his absence, 
the acting chief judge) who shall then designate 
a district or circuit judge of the circuit to 
hear and determine the case.

69



(5) It shall be the duty of the judge 
designated pursuant to this subsection to assign 
the case for hearing at the earliest practicable 
date and to cause the case to be in every way 
expedited. If such judge has not scheduled the 
case for trial within one hundred and twenty days 
after issue has been joined, that judge may 
appoint a master pursuant to rule 53 of the 
Federal Rules of Civil Procedure.

The delay of the case for six months is exactly opposed to the
statutory goal that the case be tried within six months after
issue is joined. The order of June 27 halting all activity in
the case is inconsistent with the statutory requirement that the
"case ... be in every way expedited."

The refusal to make a class determination also violates 
Rule 23(c)(1), Fed. R. Civ. P. :

(1) As soon as practicable after the 
commencement of an action brought as a class 
action, the court shall determine by order 
whether it is to be so maintained. An order 
under this subdivision may be conditional, 
and may be altered or amended before the 
decision on the merits.

The district court's postponement of the class determination 
decision in this three year old case for another half year or 
more is in conflict with Rule 23 as interpreted in Eisen v. 
Carlisle and Jacquelin, 42 U.S.L. Week 4804, 4810 (May 28, 1974).

The delay of the case is an abuse of discretion because 
contrary to the explicit commands of Title VII and Rule 23.
This Court should issue peremptory writs to prevent the substan­
tial harm which the delay will inflict upon plaintiffs and their 
class.

70



CONCLUSION

In conclusion, we ask that the Court consider the cumu­
lative unfairness of the several orders complained of as they 
interrelate with one another. It is a regrettable fact that 
by a series of orders the court below has indefinitely 
stopped plaintiffs from extra-judicial statements about the 
case by restricting their free speech, and has stopped them 
from arguing their case in court by putting the case "in limbo."

Wherefore, it is respectfully prayed that the relief 
requested herein be granted.

Respectfully submitted,

WILLIAM T. COLEMAN, JR.
Dilworth, Paxson, Kalish, 
Levy & Coleman 
2600 The Fidelity Building 
123 South Broad Street 
Philadelphia, Pa. 19109

BERNARD D. MARCUS 
Kaufman & Harris 
415 Oliver Building 
Pittsburgh, Pa. 15222

JACK GREENBERG 
JAMES M. NABRIT, III 
MORRIS J. BALLER 
BARRY L. GOLDSTEIN 
DEBORAH M. GREENBERG 
ERIC SCHNAPPER

10 Columbus Circle 
New York, N. Y. 10019

Attorneys for Petitioners

71