# Petition — Courtwright v. Equal Employment Opportunity Commission

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 446 U.S. 952

## Text

supremo UOUTt, Us Mat

EILED’
'} MAR 10 1980

IN THE t FAICHAEL RODAK, 32, CLERW

SESE ee
NS 2 eS

Supreme Court of the Gnited States
4 Sen 4 9 = 1 3 9 p>

HOWARD COURTWRIGHT; SAM CUTRELL; RICHARD
CYR; JIM DOYLE; CARL GUSTAFSON; GENE HINES;
TERRY HUCKINS; DON PETERS; ROGER PIERCE;
ELDON RHODES; JOE RIELLY; JON SCROGGINS;
DENNIS SMITH; WAYNE STALLSWORTH,; GENE
TUGGLE; PAUL ULLERICH; and FRED WOOLSEY,

Petitioners,

|

¥.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION;
SAFEWAY STORES, INC.; DENVER RETAIL GROCERS &
RETAIL CLERKS UNION LOCAL NO. 7,
AMALGAMATED MEAT CUTTERS AND BUTCHER
WORKMEN OF NORTH AMERICA, AFL-CIO, LOCAL
NO. 634; THE INTERNATIONAL UNION OF OPERATING
ENGINEERS LOCAL UNION NO. 1; DELIVERY DRIVERS,
WAREHOUSEMEN AND HELPERS, LOCAL UNION NO.
435: MILK DRIVERS AND DAIRY EMPLOYEES LOCAL
UNION NO. 537; and WAREHOUSE AND DISTRIBUTION
EMPLOYEES UNION, LOCAL UNION NO. 452,

Respondents.

PETITION FOR WRIT OF CERTIORARI

John A. Criswell
3780 South Broadway
Englewood, Colorado 80110

Of Counsel: ah
Counsel for Petitioners

Criswell & Patterson

3780 South Broadway
Englewood, Colorado 80110
303, 761-0800

i

INDEX
Page
1. THE JUDGMENT SOUGHT TO BE
EES rrr |
pM eee eee 2
RMP Se ek 2” Os b 8 2
Me a 2
D. Cee PRES GO BPR RSE oo ci ck cc tcc cee 3
RE 7
EE 9
TABLE OF AUTHORITIES
CASES:
Acha v. Beame, 570 F.2d 57 (2d Cir., 1978) ............ 8
Franks v. Bowman Transportation Co., 424 U.S. 747
ee GAL a ie beds sce ccccccce 6
International Brotherhood of Teamsters v.
United States, 431 U.S. 324 (1977) ....... 2, 5, 6, 7, 8,9
Sam Fox Publishing Co. v. United States, 366
EO 8
ce | ar 5
OTHER AUTHORITIES:
Title 28, United States Code, §1254 00.0... ccc cece ceee 2
42 U.S.C. §2000e-2(h); §2000e-5(f) (1) and (3); and
EE SEE 2

RS SS ne nn a

IN THE

Supreme Court of the Anited States

HOWARD COURTWRIGHT; SAM CUTRELL; RICHARD
CYR; JIM DOYLE; CARL GUSTAFSON; GENE HINES;
TERRY HUCKINS; DON PETERS; ROGER PIERCE;
ELDON RHODES; JOE RIELLY; JON SCROGGINS;
DENNIS SMITH; WAYNE STALLSWORTH; GENE
TUGGLE; PAUL ULLERICH; and FRED WOLLSEY,

Petitioners,
Vv.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION;
SAFEWAY STORES, INC.; DENVER RETAIL GROCERS &
RETAIL CLERKS UNION LOCAL NO. 7, .
“AMALGAMATED MEAT CUTTERS AND BUTCHER
WORKMEN OF NORTH AMERICA, AFL-CIO, LOCAL
NO. 634; THE INTERNATIONAL UNION OF OPERATING
ENGINEERS LOCAL UNION NO. 1; DELIVERY DRIVERS,
WAREHOUSEMEN AND HELPERS, LOCAL UNION NO.
435; MILK DRIVERS AND DAIRY EMPLOYEES LOCAL
UNION NO. 537; and WAREHOUSE AND DISTRIBUTION
EMPLOYEES UNION, LOCAL UNION NO. 452,

Respondents.

PETITION FOR WRIT OF CERTIORARI

Petiticners herein respectfully pray that this Honorable Court
issue its writ of certiorari to review a judgment of the United
States Court of Appeals for the Tenth Circuit and represent the
following:

2

1. THE JUDGMENT SOUGHT TO BE REVIEWED

A copy of the judgment sought to be reviewed is attached as an
appendix to this petition. Petitioners are unaware that the
opinion has, as yet, been officially reported. It has been
unofficially reported at 21 EPD (CCH) para. 30, 456.

2. JURISDICTIONAL BASES

The judgment of the Court of Appeals was rendered on
December 5, 1979. No petition for rehearing was filed with that
Court. The provisions of Title 28, United States Code, §1254
grant jurisdiction to this Court to review that judgment.

3. THE QUESTION PRESENTED

In Petitioners’ view, the question presented by their petition is:

Whether the decision of this Court in International Brother-
hood of Teamsters v. United States, 431 U.S. 324(1977), requires
a United States District Court, having entered a consent decree
modifying, and partially abrogating, a seniority system estab-
lished by collective bargaining, to vacate, pro tanto, the
provisions of such decree upon the petition of employees
adversely affected thereby.

4. STATUTES INVOLVED

The following provisions of Title VII of the Civil Rights Act of
1964 (P.L. 88-352, Title VII, 78 Stat. 252, et seq.; as amended by
P.L. 92-261, Title VII, 86 Stat. 103, et seq.; 42 U.S.C. §2000e, et
seq.) are here involved:

Section 703(h) — “Notwithstanding any other provision of
this title, it shall not be an unlawful employment practice for
an employer to apply different standards of compensation,
or different terms, conditions, or privileges of employment
pursuant to a bona fide seniority system, ... provided that
such differences are not the result of an intention to
discriminate because of race, color, religion, sex, or national
origin ...” (42 U.S.C. §2000e-2(%».

. —__

3

Section 706(g) — “If the [district] court finds that the
respondent has intentionally engaged in or is intentionally
engaging in an unlawful employment practice charged in the
complaint, the court may enjoin the respondent from
engaging in such unlawful employment practice, and order
such affirmative action as may be appropriate...” (42 U.S.C.
§2000e-5(g)).

5. STATEMENT OF THE CASE

In 1976 the Equal Employment Opportunity Commission
(“EEOC”) commenced an action against Safeway Stores, Inc.
(“Safeway”), pursuant to the authority granted to it by Section
706(f) (1) and (3) and (g) of Title VII of the above referenced Act
(42 U.S.C. §2000e-5(f) (1) and (3) and (g)), asserting that Safeway
was engaging in unfair employment practices in its various
facilities located in Denver, Colorado. Joined as parties, pursuant
to the provisions of Rule 19(a) (2), Federal Rules of Civil
Procedure, were several labor organizations which represented
various Safeway employees in separate collective bargaining
units, including Local 435, affiliated with the International
Brotherhood of Teamsters (“Local 435”).

At the time of the commencement of this action, a collective
bargaining agreement between Safeway and Local 435 provided
that the competitive seniority of each employee within Local 435’s
unit was to be determined by such employee’s length of service
within the bargaining unit — no credit was given for any
employment by Safeway in positions outside this unit.

Petitioners are a group of Safeway employees who, prior to the
commencement of the instant litigation, had transferred from
other jobs with Safeway into the Local 435 unit. All are white
males, except one, who is a black male. Each of them, upon his
transfer into the Local 435 unit, “forfeited” his previously
accumulated seniority, in accordance with the contractual
seniority system. None of them were made parties to the
litigation, nor was any formal notice of its pendency given to
them.

4

In September, 1976, the EEOC and Safeway, joined by all the
labor organizations which had been made parties to the action,
entered into a stipulated consent decree, with approval of the
district court, which was designed to dispose of the litigation. This
decree contained extensive provisions relating to various
subjects. Among those provisions were two relating to the
seniority of Safeway employees.

Paragraph I.C.6 of the decree defined seniority as “the length of
continuous employment with the Company ...” (emphasis
supplied).

Paragraph VIII.C provided that:

“... when a [job] vacancy occurs, an employee may transfer
laterally to another job classification within the same facility
in which he or she is employed for which he or she is qualified
or qualifiable without loss of seniority.”

In implementing the terms of this decree, Safeway originally
interpreted them to require it to grant to all of its employees
competitive seniority rights, for purposes of job bidding, layoffs
and recalls, based upon each employee’s length of service within
any bargaining unit. Accordingly, it originally “restored” to
Petitioners the seniority “lost” by them when they previously
transferred into the Local 435 unit.

When Local 435 learned of Safeway’s actions, however, it
sought a clarification of the decree’s terms with the result that the
district court determined that:

“The Decree mandates that the seniority of all employees
who have transferred from one job or facility to another
since the effective dates of the Decree is to be computed for
all purposes (including bidding for trucking runs) on a
“Company-wide basis.” (emphasis supplied).

and

“An employee retains his/her seniority after a transfer ...
provided such transfer occurred after the effective date of the
Decree.” (emphasis supplied).

Under the decree, as thus interpreted, the contractual seniority
system continued to apply to all employees (both majority and
minority) who had transferred into the Local 435 unit before the
decree, but company-wide seniority was granted to all employees
(both majority and minority) who transferred after the decree was
entered.

Between the date of the decree’s entry and the date of the court’s
clarifying order, seven employees transferred into the Local 435
unit and were granted seniority based upon their total length of
service with Safeway. Of these seven, all were males; five were
white; one was black; and one was Spanish-surnamed.!

Shortly after the entry of the clarifying order, when it became
apparent that Local 435 was not, and could not, adequately
represent Petitioners’ interests? Petitioners sought, and were
allowed, to intervene in the action. They asserted, essentially, that
the decree’s provisions respecting seniority were not framed to
accomplish any legitimate purpose under the Act. Such
provisions, they asserted, were being utilized by senior white male
employees to gain enhanced seniority rights to the detriment of
junior minority employees. They alleged, therefore, that the
decree’s pertinent provisions should be amended so as to make
them applicable to all employees, rather than distinguishing
between employees based solely upon the artificial and fortuitous
event of the date the decree was signed, or, in the alternative, to
apply them only to minority employees, under the presumption
that only such employees would have been affected by any past
unfair employment practices.

'The district court held no evidentiary hearing upon the issues raised by Petitioners and,
consequently, made no findings of fact. Various parties filed affidavits with that court,
some of which were factually inconsistent, one with another, although not substantially
so.

>Petitioners do not assert that Local 435 violated its obligations owed to them under the
standards adopted in Vaca v. Sipes, 361 U.S. 171 (1967). The fact that they concede that
Local 435 exercised good faith, however, does not amount to a concession that Local 435
was an adequate judicial representative for them. Note Appendix, at page 4, n. 2.

6

Before Petitioners’ motion was entirely disposed of by the
district court, this Court announced its opinion in /nternational
Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977),
which held, inter alia, that the proviso to Section 703(h) of the Act
prohibited judicial abrogation of a seniority system established
by collective bargaining, absent evidence that its adoption was
motivated by unlawful intent.

In light of the Teamsters decision, both Petitioners and two of
the defendant labor organizations suggested to the district court
that a modification in the decree was dictated, so as to remove
therefrom the blanket grant of company-wide seniority to all
post-decree transferees and so as to substitute therefor provisions
which established a procedure for recognition of the seniority
rights of any minority member ‘mproperly denied job transfers in
the past. See Teamsters, supra, and Franks v. Bowman
Transportation Co., 424 U.S. 747 (1976).

Although requested by several parties to do so, the district
court held no evidentiary hearing upon the issues raised. Rather,
after considering various joint submissions by the parties, that
court merely entered a minute order denying Petitioners’ and two
labor organizations’, motions to modify.’

Petitioners instituted an appeal to the Court of Appeals. While
that appeal was pending, however, all parties petitioned the
district court to amend the decree by deleting therefrom on a
prospective basis, the seniority transfer provisions contained
therein. Such joint request was granted. The court-ordered
seniority system, therefore, was in effect for approximately 18
months.

‘Petitioners’ original motion was filed in April, 1977, some seven months after the
decree’s entry and 30 days after the district court's clarifying order was entered. In July,
1977, the district court provisionally denied Petitioners’ motion, but directed the parties to
present further factual materials to it. This was done in November, 1977, at which time
requests were made for an evidentiary hearing. The court's minute order was entered on
January 12, 1978, approximately nine months after the Petitioners’ original motion was
filed.

6. ARGUMENT

In affirming the district court’s denial of relief to Petitioners,
the Tenth Circuit acknowledged that the decree granted
“enhanced” seniority rights to post-decree transferees, “many of
whom had no more claim to Title VII protection than
[ Petitioners].” (App., p. 4). Likewise, that Court recognized that,
had the consent decree been entered subsequent to the
announcement of the Teamsters opinion, a legitimate issue
respecting the decree’s propriety might have been presented. (Id.,
p. 10).

Nevertheless, it affirmed the district court’s refusal to modify
the decree on three principal bases, as follows:

a. That relief from a final equitable decree under Rule 60(b),
Federal Rules of Civil Procedure, cannot take the form of
retroactive alteration of that decree;

\

b. That Teamsters did not require a different conclusion;
ahd

c. That, in any event, there was no proof presented to the trial
court that Local 435’s contractual seniority system was “bona
fide” within the meaning of the Section 703(h) proviso.

In reaching these conclusions, however, the Court of Appeals
failed to take cognizance of the vital distinctions between the
factual circumstances presented by this case and those involved in
the adjudications relied upon by it. Those distinctions consist of
the following:

a. Petitioners here were not made parties to the original
litigation; they received no formal notice of the same; and they
took no part in preparing the consent decree. They admit, of
course, that, in the “typical” lawsuit, it may well be presumed that
an employee’s collective bargaining agent will provide adequate
representation to him. Here, however, because of Local 435’s
necessary representation of two or more groups of employees
with conflicting interests, Local 435 could not adequately
represent all those interests. Indeed, after the decree’s entry, that

8

labor organization made claims, and took positions, diametrical-
ly opposed to Petitioners’ interests. Thus, in allowing Petitioners
to intervene at the trial level, the district court made a specific
finding that “their interest is not adequately represented by the
existing parties in this suit.”

This being the factual predicate, there exists reasonable
grounds for believing that the district court’s decree, as well as its
later clarifying order, was not “final,” at least under the
traditional concepts of “res judicata,” in any sense binding upon
Petitioners. Sam Fox Publishing Co. v. United States, 366 U.S.
683 (1961). See, also, Acha v. Beame, 570 F.2d 57 (2d Cir., 1978),
approving the vacation of a summary judgment, certified as final
under Rule 54(b), after this Court’s pronouncement in Teamsters,
supra, was published. Given these circumstances, the strictures
upon modification of an equitable decree, contained within Rule
60(b) or otherwise, cannot be applied.

Furthermore, even if it be conceded, arguendo, that only a
prospective modification of the decree is authorized, surely sucha
modification could be effective from the date of the filing of
Petitioners’ motion with the district court — a date nearly one
year prior to the date that the decree was actually modified.

b. The Court of Appeals grounded its opinion, in part, upon its
conclusion that Petitioners had failed to show sufficiently
changed conditions to warrant a modification in the decree’s
terms (App., p. 9). Yet, both Petitioners and the other parties to
the litigation were given no opportunity to present such evidence,
since the district court failed to grant their requests for an
evidentiary hearing. Likewise, the Court of Appeals refused to
remand the matter to the lower court for this purpose.

c. While the language of Section 703(h) does not, literally,
impose any limitation upon a federal court’s authority, that
provision, read in conjunction with the Act’s grant of jurisdiction
to the federal judiciary to enjoin intentional violations of the Act
(42 U.S.C. §2000e-5(g)), constitutes a positive proscription upon
the relief to be granted under Title VII. Ina substantive sense, this
restraint is similar to the restraint against injunctions in actions

9

involving “labor disputes,” which is to be found within the
provisions of the Norris-La Quardia Act (29 U.S.C. $104). Thus
considered, the Teamsters decision involved not merely a matter
of substantive law, but it established parameters for the exercise
of a federal court’s subject matter jurisdiction. If this be an
accurate analysis, that portion of the decree which purported to
affect the contractual seniority system was beyond the power of
the trial court to adopt.

d. The Court of Appeals noted that there had been’ no
determination made that the contractual seniority system was
“bona fide” under Section 703(h). However, the EEOC made no
assertion that it was not “bona fide” in its complaint (filed prior to
Teamsters), nor did any party so contend. On the contrary, Local
435 explicitly contended below that, had it been aware of the
Teamsters’ principle at the time, it would not have joined in
approving the consent decree. Finally, all parties agreed to, and
the trial court approved of, a return to the contractual seniority
system approximately 18 months after the decree’s entry. Surely,
if the EEOC had any questions with respect to the system’s bona
fides, it could not have consented to its reinstitution.

7. CONCLUSION

Petitioners assert that the decision of the Court of Appeals in
this case failed to give to this Court’s decision in Teamsters, supra,
the effect which thi. Court intended. Asa result, its decision is, we
submit, inconsistent with the basic tenets of that decision. This
Court should grant its writ of certiorari to review the judgment of
the Court of Appeals for the purpose of re-emphasizing the
attention which the federal courts must pay to the
Congressionally-approved proviso to Section 703(h) of the Act.

Respectfully submitted,

Of Counsel:

CRISWELL & PATTERSON John A. Criswell

3780 South Broadway 3780 South Broadway
Englewood, Colorado 80110 Englewood, Colorado 80110
303/ 761-0800 Counsel for Petitioners

10

APPENDIX
PUBLISH

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,

Plaintiff-Appellee,
VS.

SAFEWAY STORES, INC.; DENVER RETAIL
GROCERS & RETAIL CLERKS UNION LOCAL
NO. 7; AMALGAMATED MEAT CUTTERS
AND BUTCHER WORKMEN OF NORTH
AMERICA, AFL-CIO, LOCAL NO. 634; THE
INTERNATIONAL UNION OF OPERATING
ENGINEERS LOCAL UNION NO. 1;
DELIVERY DRIVERS, WAREHOUSEMEN
AND HELPERS, LOCAL UNION NO. 435;
MILK DRIVERS AND DAIRY EMPLOYEES
LOCAL UNION NO. 537; and WAREHOUSE
AND DISTRIBUTION EMPLOYEES UNION,
LOCAL UNION NO. 482,

Defendants-A ppellees,
No. 78-1138

VS.

HOWARD COURTWRIGHT; SAM CUTRELL:;
RICHARD CYR; JIM DOYLE; CARL
GUSTAFSON; GENE HINES; TERRY HUCKINS:
DON PETERS; ROGER PIERCE; ELDON
RHODES; JOE RIELLY; JON SCROGGINS;
DENNIS SMITH; WAYNE STALLSWORTH;
GENE TUGGLE; PAUL ULLERICH; and FRED
WOOLSEY,

Intervenors-Appellants.

APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

(D.C. Case No. 75-F-1184)

John A. Criswell of Criswell & Patterson, Englewood, Colorado,
for Intervenors-Appellants.

Martin D. Buckley of Hornbein, MacDonald & Fattor, Denver,
Colorado, for Defendant-Appellee Delivery Drivers, Ware-
housemen and Helpers, Local Union No. 435.

Gregory A. Eurich (with Richard W. Comfort on the brief) of
Holland & Hart, Denver, Colorado, for Defendant-Appellee
Safeway Stores.

Marilyn S.G. Urwitz (with Abner W. Sibal, General Counsel;
Joseph T. Eddins, Associate General Counsel; and Beatrice
Rosenberg, Assistant General Counsel, on the brief), Washing-
ton, D.C., for Plaintiff-Appellee Equal Employment Opportuni-
ty Commission.

Walter Brauer (with Thomas B. Buescher on the brief) of Brauer
& Simons, Denver, Colorado, for Defendant-Appellee Amal-
gamated Meat Cutters and Butcher Workmen of North America
Local No. 634.

Before SETH, Chief Judge, McWILLIAMS and McKAY,
Circuit Judges.

McKAY, Circuit Judge.

This action was instituted by the Equal Employment
Opportunity Commission (EEOC) pursuant to §706 of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§2000e-5(f), (g).
alleging unfair employment practices by Safeway Stores, Inc.
After the filing of initial pleadings, EEOC, Safeway and the
various labor unions made up of Safeway employees joined as
defendants pursuant to Fed. R. Civ. P. 19(a) (2) entered into a '

12

lengthy consent decree. Among other things, the decree provided
for a change in the calculation of seniority upon transfer from one
Safeway labor unit to another: “[W]hen a vacancy occurs, an
employee may transfer laterally to another job classification ...
for which he or she is qualified or qualifiable without loss of
seniority. Selection of applicants for transfer shall be based upon
seniority with the Company.” Record, vol. |, at 28, para. VIII.C.
“Seniority” is defined in the decree as “the length of continuous
employment “ith the Company computed from the date the
employee first reports for work” in any Safeway labor unit
(company seniority). Record, vol. 1, at 17, para. I-C-6. In
contrast, the various collective bargaining agreement with
Safeway provided that seniority would be measured by the length
of an employee’s service “within the bargaining unit” (unit
seniority). Supplemental Record at 31. Therefore, the decree
modified the existing seniority system to allow transfers between
job classifications, and therefore between bargaining units,
without the loss of seniority accrued since the original date of hire
with Safeway.

Safeway initially construed the consent decree to grant
company seniority to all of its employees. One of the involved
unions, Delivery Drivers, Warehousemen and Helpers, Local
Union No. 435, petitioned the district court to enjoin Safeway
from acting on this interpretation, and Safeway requested
clarification of the decree regarding the seniority provisions. In
response, the district Court entered an “Order Interpreting the
Consent Decree and Granting Injunctive Relief.” In pertinent
part, that order determined: “The Decree mandates that the
seniority of allemployees who have transferred from one job... to
another since the effective date of the Decree is to be computed
for all purposes ... on a company-wide basis.” Record, vol. 1, at
171 (emphasis added).

Shortly after the entry of this order, 17 individual members of
Local 435 were allowed to intervene in the suit. The intervenors
had transferred from another Safeway job into Local 435 prior to
the date of the consent decree and, under the court’s interpreta-
tion of the decree, they would not be credited with company

13

seniority. Accordingly, their seniority status was adversely
affected by the enhanced seniority of post-decree transferees,
many of whom had no more claim to Title VII protection than
intervenors.! In a motion for modification, intervenors insisted
that either all employees be accorded company seniority or that
only minority members retain seniority advantages upon
transfer.

In denying the intervenors’ motion, the district court indicated
that it would be willing to modify the decree only upon a strong
showing:

(1) that the goals of the Decree would be substantially
furthered by such a modification, or (2) that the harm to[the
intervenors] outweighs (a) the benefits to minority em-
ployees from prospective application of the transfer
provisions of the Decree, and (b) any harm that may result
from retroactive application of these provisions.

Record, vol. |, at 181. In addition, the court ordered the parties to
meet in an attempt to agree on a modification. When the parties
failed to agree or to convince the court of a compelling need for
modification, intervenors’ further motion for modification was
denied, forming the basis of this appeal.

While this appeal was pending, all parties stipulated to certain
amendments of the original consent decree. Pursuant to this
stipulation, the right to retain company seniority upon transfer
terminated on July |, 1978, approximately a year and a half after
the entry of the decree. Those who transferred after the date of the
decree but before this amendment became effective retained
company seniority.

'One of the intervenors is black and, as of the last available data, two of the post-decree
transferees into Local 435 were Spanish-surnamed. All others are white males.
Apparently, not all of the intervenors were in fact disadvantaged in the seniority system by
transfers under the decree. The evidence on both the numbers and makeup of affected
intervenors and protected transferees is grossly incomplete, but resolution of these
specifics is not necessary to the conclusion we reach.

2Intervenors do not contend that their interests were not fairly represented by Local 435
in the negotiation of the consent decree. See Brief for Intervenor-Appellants at 29 n.10.
See also Bolden v. Pennsylvania State Police, 578 F.2d 912, 918 (3d Cir. 1978).

14

We consider preliminarily whether the district court erred in
interpreting the language of the consent decree to afford company
seniority only to post-decree transferees. It is clear that the
enforcing court has power to interpret a decree when its language
results in confusion. See Pasadena City Board of Education vy.
Spangler, 427 U.S. 424, 438 (1976). Ridley v. Phillips Petroleum
Co., 427 F.2d 19 (10th Cir. 1970), demonstrates the breadth of a
court’s discretion in constructing decrees. We held there that a
court should adopt an interpretation which renders the judgment
“more reasonable, effective, and conclusive.” /d. at 23 (quoting
Pen- Ken Gas & Oil Corp. v. Warfield Natural Gas Co., 137 F.2d
871 (6th Cir. 1943), cert. denied, 320 U.S. 800 (1944)).

The district court’s interpretation of the seniority provisions of
this consent decree was reasonable in light of the language and
purpose of the decree.) The interpretation thus become pari
materia with the decree for purposes of this opinion.

There are two channels through which a consent decree may
later be modified.4 Rule 60(b) allows for relief from a final
judgment, order or proceeding upon a showing that “the
judgment is void,” that “it is no longer equitable that the
judgment should have prospective application,” or for “any other
reason justifying relief.” Fed. R. Civ. P. 60(b) (4), (5), (6). In
addition, a court of equity has continuing jurisdiction to modify a
decree upon changed circumstances, even if the decree was
entered by consent. United States v. Swift & Co., 286 U.S. 106
(1932). However, a court’s power to modify is not to be lightly
exercised to change the settled terms of a consent decree. An
appellate court must be particularly reluctant to alter a decree
because the entering court has broad discretion in the administra-

‘Even if the interpretation of the district court is viewed as a substantive change in the
intention expressed by the original decree rather than a mere clarification, such an
interpretation is within the court's power under the very doctrines the intervenors seek to
have us apply in this appeal.

*The intervenors do not suggest the procedural approach upon which they rely.

ts oe acer eater ne

Renee ae ewe

ones lat al pt

15

tion of such decrees. See Franks v. Bowman Transportation Co.,
424 U.S. 747, 763-64 (1976); EEOC v. American Telephone &
Telegraph Co., 556 F.2d 167, 178 (3d Cir. 1977), cert. denied, 438
U.S. 915 (1978); United States v. Allegheny- Ludlum Industries,
Inc., 517 F.2d 826, 850 (Sth Cir. 1975) cert. denied, 425 U.S. 944
(1976); West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079, 1085-
86 (2d Cir.), cert. denied, 404 U.S. 871 (1971). A trial court’s
ruling on a Rule 60(b) motion will not be disturbed by this court
absent an abuse of discretion. Winfield Associates, Inc. vy.
Stonecipher, 429 F.2d 1087, 1090 (10th Cir. 1970).

Intervenors’ first objection to the decree is that a grant of
enhanced seniority rights to all post-decree transferees rather
than to all employees or to minority transferees only does not
fulfill any legitimate purpose of Title VII. We agree that the
purpose of Title VII is to secure relief to members of a class
those who may be subject to employment discrimination “on the
basis of race, color, religion, sex, or national origin.”5 42 U.S.C.
§2000e-2. But to argue that the terms of a consent decree may not
vary from the statutory limits of Title VII® is to misconceive the
nature of consent decrees and to ignore the strong policy
embodied in Title VII in favor of voluntary settlements.’. See
Alexander v. Gardner- Denver Co., 415 U.S. 36, 44(1974): United
States v. Allegheny- Ludlum Industries, Inc., 517 F.2d 826 (Sth
Cir. 1975), cert. denied, 425 U.S. 944 (1976). Of course. the statute

‘Title VII actions can be brought for the benefit of a potential class of discriminatees
rather than for merely those who can prove they were actually victims of discrimination.
See United States v. Navajo Freight Lines, 525 F.2d 1318, 1324-26 (9th Cir. 1975).

‘Some victims of discrimination within the target of Title VII may not be readily
identified ie., those hampered in emp oyment opportunities by their religious
affiliation or national origin. Consequently, we are unable to detect from intervenors’
figures how many of the post-decree transferees were actually within the literal scope of
litle VII. Some broadening of apparent class limits may be necessary to reach ali those
affected.

“At the core of this consent decree is an agreement between Sateway and the unions
reached in an attempt to comply with Title VII. Some comparison can be made to a
collective bargaining agreement which, according to the Supreme Court, “may go further,
enhancing the seniority status of certain employees for the purposes of furthering public
policy interests beyond what is required by statute, even though this will to some extent be
detrimental to the expectations acquired by other employees under the previous seniority
agreement.” Franks v. Bowman Transportation Co., 424 U.S. 747, 778-79 (1976) (citing
Ford Motor Co. v. Huffman, 345 U.S. 330 (1953)).

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may provide the broad outlines of the objectives to be reached
and the mechanisms to be used. This court would not
countenance governmental coercion in directions wholly outside
the purview of congressional pronouncement under the aegis of
consent decree negotiations.

It is not the purpose of Rule 60(b) or the inherent powers of
chancery to allow the modification of a consent decree merely
because it reaches a result which could not have been forced on
the parties through litigation. For example, in V.7.A., Inc. v.
Airco, Inc., 597 F.2d 220 (10th Cir. 1979), this court upheld a
consent decree against a Rule 60(b) (4) attack. The appellant
claimed that the relief afforded by the consent decree was in
violation of federal patent law and was therefore void. This court
responded to that “[e]ven if the parties’ consent decree does
technically run afoul of federal patent law principles, the problem
would be relief from an erroneous judgment, not a void one.” /d.
at 226. We held that Rule 60(b) (4) “is not available to correct
mere legal error.” /d. See also Mayberry v. Maroney, 558 F.2d
1159, 1164 (3d Cir. 1977). In United States v. Swift & Co., 286
U.S. 106 (1932), the Supreme Court held that an “injunction,
whether right or wrong, is not subject to impeachment in its
application to the conditions that existed at its making.” /d. at
119. The fact that a consent decree exceeds the law by prohibiting
lawful conduct, Swift & Co. v. United States, 276 U.S. 311, 328-
31 (1928), or by granting an unauthorized remedy, Walling v.
Miller, 138 F.2d 629 (8th Cir. 1943), cert. denied, 321 U.S. 784
(1944), does not render it void. Such efforts may be grounds for
reversal on appeal of the judgment, but they are not grounds for
collateral attack.

Although a consent decree will not be vacated merely because it
is legally erroneous, it may be altered upon a showing of changed
circumstances which have produced “hardship so extreme and
unexpected” as to make the decree oppressive. United States v.
Swift & Co., 286 U.S. 106, 119 (1932); S.E.C. v. San-Dal Oil &
Gas, Inc., 433 F.2d 304, 305 (10th Cir. 1970); Ridley v. Phillips
Petroleum Co., 427 F.2d 19,22 (10th Cir. 1970). We find no abuse
of discretion in the district court’s determination that this decree

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was not rendered inequitable by changed circumstances. There is
no evidence indicating that the facts — e.g., the nature and
makeup of Safeway employees and operations — against which
the decree and the interpreting order were framed have
substantially changed.

Intervenors assert an additional ground for impeaching the
consent decree. They argue that /nternational Brotherhood of
Teamsters v. United States, 431 U.S. 324(1977), decided after the
decree and interpretive order were entered, compels modifica-
tion. In interpreting §703(h) of Title VII, the Supreme Court in
Teamsters held that “an otherwise neutral, legitimate seniority
system does not become unlawful under Title VII simply because
it may perpetuate pre-Act discrimination.” /d. at 353-54. We are
not obliged to decide for this appeal what impact Teamsters
would have on a consent decree reached after Teamsters was
decided or on the outcome of subsequent litigation between these
parties. We decide only that Teamsters does not require
retroactive alteration of the consent decree in this case.

A similar situation was presented in Collins v. City of Wichita,
254 F.2d 837 (10th Cir. 1958). After the original judgment in
Collins became final, the Supreme Court reviewed, in another
case, the statute upon which the judgment was based and found it
unconstitutional. In denying a Rule 60(b) motion based on the
subsequent Supreme Court decision, this court held, “A change in
the law or in the judicial view of an established rule of law” is not
an extraordinary circumstance justifying relief. /d. at 839. The
Third Circuit confronted a similar change in the case law on a
Rule 60(b) motion in Mayberry v. Maroney, 558 F.2d 1159 (3d
Cir. 1977). It concluded that the power to alter decrees “does not
contemplate relief based merely on precedential evolution.” /d. at
1164. See also Chicot County Drainage District v. Baxter State
Bank, 308 U.S. 371 (1940).

There are some situations where a change in the law warrants
modification of an injunctive decree. For instances, in System
Federation No. 91 v. Wright, 364 U.S. 642 (1961), the Supreme
Court balanced the policies of finality and flexibility and
determined that an amendment of the statute underlying an

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earlier decree made prospective enforcement of the decree
inequitable. However, it was the prospective injunctive effect of
the decree at issue in System Federation. The Court did not
purport to erase retroactively the effect of the decree.

Other cases have held that a significant judicial clarification of
the law will justify altering the future application of a decree in
compelling circumstances. See Pasadena City Board of Educa-
tion v. Spangler, 427 U.S. 424(1976); City & County of Denver v.
Denver Tramway Corp., 187 F.2d 410, 417 (10th Cir. 1951);
Coca-Cola Co. v. Standard Bottling Co., 138 F.2d 788 (10th Cir.
1943). No attempt was made in these cases to undo the effects of
past enforcement.’ In contrast, intervenors seek only the
unraveling of seniority already assigned to employees who
transferred in reliance to the decree. Because the decree has now
been amended to delete the transfer provisions, future application
of the decree is no longer in issue.

There is one additional reason why Teamsters does not compel
our alteration of the seniority provisions of this decree. Teamsters
prohibits abrogation of a seniority system only if that system is
bona fide.? Because this case was never litigated, there has been no
determination that Safeway’s seniority system is bona fide.
Intervenors would have us assume at this point the system was
bona fide, or at the least, remand the case for a hearing and
determination. This we decline to do. The policy of voluntary
settlement so important to the enforcement of Title VII would be
seriously undermined if the approving court were required to
establish the facts underlying the parties’ positions before
approving a consent decree. The power to compromise exists

‘Spangler differs from the instant case in one other significant way. In Spangler the
Supreme Court decision which cast doubt on the propriety of continued enforcement of
the consent decree as interpreted was decided after the entry of the original decree but
before the offending interpretation. The question in Spangler, therefore, was not whether
a subsequent case requires modification of an interpretive order already made final.

*In Acha v. Beame, 438 F. Supp. 70(S.D.N.Y. 1977), aff'd, 570 F.2d (2d Cir. 1978), for
instance, the court determined that Teamsters required Rule 60(b) relief from an
injunction when, during the course of the litigation which produced the injunction, it had
been determined that the seniority system involved was “facially neutral ... and followed
the ... dictates of” state law. 438 F. Supp. at 73.

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partially because of the uncertainties and expense typical of
adversary hearing and judicial determination of fact. West
Virginia v. Chas. Pfizer & Co., 440 F.2d 1079, 1085-86 (2d Cir.),
cert. denied, 404 U.S. 871 (1971). We concur with the district
court, “A Consent Decree would be worthless if it could be
attacked on the ground that had the Court made a particular
determination, such relief would then not be statutorily
available.” Record, vol. 2, at 213.

We are unconvinced that the intervenors should obtain the
extraordinary relief they request. The district court did not abuse
its discretion in administering the decree.

AFFIRMED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1815%3A1. Public record. Not legal advice.