619 F.2d 459 (5th Cir. 1980), 77-1502, Bernard v. Gulf Oil Co.

Docket Nº:77-1502.
Citation:619 F.2d 459
Party Name:Dec. P 31,029 Wesley P. BERNARD et al., Plaintiffs-Appellants, v. GULF OIL COMPANY et al., Defendants-Appellees.
Case Date:June 19, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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619 F.2d 459 (5th Cir. 1980)

Dec. P 31,029

Wesley P. BERNARD et al., Plaintiffs-Appellants,


GULF OIL COMPANY et al., Defendants-Appellees.

No. 77-1502.

United States Court of Appeals, Fifth Circuit

June 19, 1980

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Ulysses Gene Thibodeaux, Lake Charles, La., Barry L. Goldstein, Washington, D. C., Jack Greenberg, Patrick O. Patterson, New York City, for plaintiffs-appellants.

William H. Ng, Atty., Joseph T. Eddins, Jr., Assoc. Gen. Counsel, Charles L. Reischel, Asst. Gen. Counsel, Susan B. Reilly, Lutz A. Prager, Equal Employment Opportunity Commission, Washington, D. C., Carol E. Heckman, Jessica Dunsay Silver, Drew S. Days, III, Asst. Atty. Gen., Appellate Sec., Civil Rights Div., Dept. of Justice, Washington, D. C., amicus curiae, for E. E. O. C.

Wm. G. Duck, Susan R. Sewell, U. S. Jones, Houston, Tex., for Gulf Oil.

Michael D. Murphy, Port Arthur, Tex., for Oil, Chemical & Atomic Workers, Etc.

John D. Buchanan, Jr., Tallahassee, Fla., William F. Kaspers, Atlanta, Ga., for amicus Tallahassee Memorial Hospital.

Appeal from the United States District Court for the Eastern District of Texas.


GODBOLD, Circuit Judge:

This suit was brought as a class action by six present or retired black employees of the Port Arthur, Texas, plant of Gulf Oil Company, under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2) and 42 U.S.C. § 1981. The members of the asserted class are black employees and black former employees of the Port Arthur plant, and black applicants rejected for employment with Gulf Oil (at the Port Arthur plant and elsewhere). The defendants are Gulf Oil and the Oil, Chemical and Atomic Workers' Union.

Plaintiffs charged that Gulf discriminated against blacks in hiring, job assignments, pay scales, discipline and discharge, employed discriminatory tests and racially tainted promotion and progression practices, and denied training to blacks and refused seniority to blacks. They alleged that the union had agreed to, acquiesced in or condoned Gulf's discriminatory practices. The district court dismissed the Title VII claim as untimely filed, granted summary judgment for defendants on the § 1981 claim, and applied laches as an additional ground for its disposition of both claims. With respect to these three holdings, we adopt parts I, II and III of the panel opinion 1 and reverse and remand to the district court. A fourth issue we will consider at length. It concerns the validity of an order of the district court restricting communications by named plaintiffs and their counsel with actual and potential class members not formal parties to the suit. By a divided vote the panel found the order valid. 596 F.2d at 1258. We hold that the order violated the First Amendment to the Constitution and Rule 23, Fed.R.Civ.P.

I. The background

The facts are accurately stated in the dissenting opinion to the panel decision, 596 F.2d at 1262-76, and the court adopts that statement. We restate the facts in condensed form.

In April 1976, Gulf and EEOC entered into an extra-judicial conciliation agreement covering alleged racial discrimination against blacks at the Port Arthur plant and providing for conciliation of alleged discriminatory practices and for back pay to 614 present and former black employees. No employees were parties to the agreement. Plaintiffs brought this suit in May 1976, represented by local counsel in association with New York attorneys from the NAACP Legal Defense and Education Fund. Before answering and before a class was certified, Gulf filed an unsworn request

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that the court enter an order limiting communication by parties and their counsel with actual or potential class members. Gulf asserted that it had received reports that one of plaintiffs' attorneys had attended a meeting of actual and potential class members and had advised the group not to sign receipts and releases sent to them pursuant to the conciliation agreement because he could recover twice as much for them in the suit just filed.

District Judge Steger entered a temporary order on May 28. 2 Gulf filed an additional unsworn charge that the same plaintiffs' attorney had also recommended that employees who had already signed receipts and releases should return their checks. Gulf also filed an affidavit from EEOC which stated that the issues in the suit were almost identical to those embraced in the conciliation agreement.

Plaintiffs challenged the constitutionality of the temporary order. They filed affidavits denying Gulf's charges and a brief asserting that numerous issues in the suit were not within the matters conciliated. On June 22, without proof of the unsworn charges made by Gulf and without entering findings of fact, Chief District Judge Fisher rejected plaintiffs' constitutional arguments and entered a modified order explicitly modeled on that suggested in the Manual for Complex Litigation, Part II, § 1.41 (1973 ed.), 3 a publication widely used by federal judges. It is the validity of this modified order that is now before us.

On July 6 plaintiffs moved for permission for themselves and their counsel to communicate with members of the proposed class and also asked for guidance from the court. They attached a notice, reproduced at 596 F.2d 1266, which they proposed to distribute and asserted that they were constitutionally entitled to distribute. The notice alerted black employees to the existence of the lawsuit as an alternative to acceptance of Gulf's conciliation offer and urged them to talk to an attorney. The time for acceptance of Gulf's conciliation offer expired on or about August 8. On August 10, the court, without explanation, denied plaintiffs' motion by a one-sentence order.

II. The provisions of the order

The order, described by plaintiffs as a "gag order," is broad in scope and plenary in nature, forbidding a wide range of communications. 4

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The persons enjoined are "all parties hereto and their counsel."

The subject matter forbidden is communications with any actual or potential class member not a formal party, "concerning (this) action . . . without the consent and approval of the proposed communication and proposed addressees by order of this Court." More specific communications that the proscription includes, but is not limited to, are: (a) solicitation of legal representation of potential and actual class members not formal parties; (b) solicitation of fees and expenses; (c) solicitation of requests by class members to opt out; and (d) "communications from counsel or a party which may tend to misrepresent the status, purposes and effects of the class action, and of any actual or potential Court orders therein which may create impressions tending, without cause, to reflect adversely on any party, any counsel, this Court, or the administration of justice."

The means of communication forbidden are "directly or indirectly, orally or in writing."

The order contains several exceptions, set out in the second subparagraph of P (2): communications between attorney and client, and between attorney and prospective client when initiated by the prospective client, and communications in the regular course of business.

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The third subparagraph of P (2) is a much-debated provision requiring post-communication filing with the court of any communication asserted to be constitutionally protected:

If any party or counsel for a party asserts a constitutional right to communicate with any member of the class without prior restraint and does so communicate pursuant to that asserted right, he shall within five days after such communication file with the Court a copy of such communication, if in writing, or an accurate and substantially complete summary of the communication if oral.

The order also contains a provision that the clerk of the district court send a notice to those employees covered by the conciliation agreement who have not signed receipts and releases for back pay. The notice, which is an appendix to the order, tells the employee that this case is pending, and briefly describes it, and that he has been identified as an actual or potential class member. It describes the outstanding conciliation offer from Gulf and tells the employee that he has a choice of accepting the Gulf offer or declining it and being considered at a later date for inclusion in the class in the suit. Employees are told they have 45 days in which to accept the conciliation offer.

III. The basis for the order

Presumably, since the district court made no findings, its order was based upon suggestions contained in the Manual, which recommends that procedures be devised to anticipate and prevent potential abuses in class actions, including solicitation of representation, solicitation of funds and of opt-out requests, and misrepresentations that may create confusion and reflect adversely on the court or the administration of justice. Manual, Part I, § 1.41. The Manual recommends that district courts adopt local rules imposing "in every potential and actual class action" substantially the ban on communication that is here involved, and in the absence of a local rule 5 impose the ban by an order entered promptly after the filing of any actual or potential class action. Id., Part I, § 1.41; Part II, § 1.41 (Suggested Local Rule 7 and Suggested Pretrial Order No. 15). 6 Our interpretation of the basis for the court's order is reinforced by the court's rejection of plaintiffs' constitutional arguments on the ground that the order it had entered comported...

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