U.S. v. Mississippi Power & Light Co.

• Decision Date: 06 March 1981
• Docket Number: Nos. 79-2636,80-3043,s. 79-2636
• Citation: 638 F.2d 899
• Parties: 25 Fair Empl.Prac.Cas. 250, 25 Empl. Prac. Dec. P 31,628 UNITED STATES of America, Plaintiff-Appellee, v. MISSISSIPPI POWER & LIGHT COMPANY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. NEW ORLEANS PUBLIC SERVICE, INC., Defendant-Appellant. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 899

638 F.2d 899

25 Fair Empl.Prac.Cas. 250,

25 Empl. Prac. Dec. P 31,628

UNITED STATES of America, Plaintiff-Appellee, v. MISSISSIPPI POWER & LIGHT COMPANY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. NEW ORLEANS PUBLIC SERVICE, INC., Defendant-Appellant.

Nos. 79-2636, 80-3043.

United States Court of Appeals, Fifth Circuit.

Unit A

March 6, 1981.

E. Grady Jolly, Michael Farrell, Sherwood Wise, Jackson, Miss., for defendant-appellant in No. 79-2636.

George Phillips, U. S. Atty., Jackson, Miss., Louis G. Ferrand, Jr., John M. Gadzichowski, Attys., James D. Henry, Assoc. Sol., Carin Clauss, Sol. of Labor, Drew S. Days, U. S. Dept. of Justice, Civil Rights Div., Washington, D. C., for plaintiff-appellee in No. 79-2636.

Milling, Benson, Woodward, Hillyer, Pierson & Miller, Michael J. Molony, Jr., New Orleans, La., for defendant-appellant in No. 80-3043.

John P. Volz, U. S. Atty., New Orleans, La., for plaintiff-appellee in No. 80-3043.

David L. Rose, Fed. Enf. Sec., Thomas P. Carney, U. S. Dept. of Justice, Civil Rights Div., Washington, D. C., for plaintiff-appellee in both cases.

Appeal from the United States District Court for the Southern District of Mississippi.

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

Before WISDOM, GARZA and REAVLEY, Circuit Judges.

WISDOM, Circuit Judge:

These companion cases are before the Court for the second time. The Attorney General, on behalf of the United States, brought these actions in 1973 and 1974 against New Orleans Public Service, Inc. (NOPSI) and Mississippi Power & Light (MP&L), contending that, as government contractors, those companies were bound by Executive Order (E.O.) 11246, as amended, and the regulations of the Secretary of Labor promulgated under it, 41 C.F.R. § 60.1 et seq. That order imposes on government contractors the obligation to take affirmative action to achieve the equal opportunity goals of the E.O.'s mandate (in effect, to increase the hiring of members of racial and ethnic minorities.) ¹ More specifically, the United States sought injunctions to obtain access to the companies' records to determine whether they had complied with the mandates of the executive order. The companies resisted the inspection on a number of grounds which are detailed extensively in this Court's first opinions in these cases. United States v. New Orleans Public Service, Inc., 5 Cir. 1977, 553 F.2d 459; United States v. Mississippi Power & Light Co., 5 Cir. 1977, 553 F.2d 480. The primary challenges in those cases centered on the constitutional validity of the executive order and relevant regulations, on whether the mandates of the order could be imposed on the companies without their contractual consent, and on whether, and to what extent, the fourth amendment protected the companies' records from government view.

The district courts granted the injunctions. On appeal, we held that the executive order and the regulations were congressionally authorized and therefore could validly be applied to the defendant companies. We also rejected the companies' fourth amendment arguments, but withheld the injunctive relief granted by the district courts. Instead, relying on the declaratory force of our decisions and the good faith of the parties, we allowed the companies to comply voluntarily and authorized the government to seek through administrative proceedings to resolve any remaining issues concerning access to the companies' records.

The Supreme Court granted certiorari and vacated our decision for reconsideration in light of Marshall v. Barlow's, Inc., 1978, 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305, a decision subsequent to this Court's decision, which cast some shadows on the rationale underlying our resolution of the fourth amendment issues. 436 U.S. 942, 98 S.Ct. 2841, 56 L.Ed.2d 783. We in turn remanded the cases to the respective district courts with the same directions. 577 F.2d 1030. Both courts concluded that Barlow's did not dictate a reversal of their earlier rulings and entered orders that were similar to the order issued by this Court before the Supreme Court's review. Because we disagree in part with the district courts, we must vacate their orders and remand for further findings.

I.

The United States raises an initial question, ignored by the appellants, whether the two orders issued by the district courts are final decisions within the meaning of 28 U.S.C. § 1291. If the decisions are not final, we do not have jurisdiction over these appeals. ² Although the opinions and orders in these two cases differ somewhat, the effects of the two dispositions are the same. Both courts authorized the United States to proceed through administrative action to force the companies to comply with the executive order and the regulations. Both courts also concluded that the companies had no further fourth amendment defenses to the proposed inspections and that their refusal to allow the inspections violated the executive order. Neither court issued the injunctions sought by the government. Like this Court in its first decision, they were willing to rely instead on the declaratory force of their decisions and on the good faith of the parties. Both courts retained jurisdiction, however, in the event that enforcement of their decisions became necessary. ³

Gillespie v. United States Steel Corp., 1964, 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199, furnishes the analytical framework for determining whether these orders are final within the meaning of § 1291. As that case points out, "a decision final within the meaning of § 1291 does not necessarily mean the last order possible to be made in a case". Id. at 152, 85 S.Ct. at 310. Thus, although the withholding of injunctive relief and retention of jurisdiction by the district courts in these cases makes it possible that they will be called on to issue another order to enforce their decisions, that fact alone is not dispositive on the issue of finality. Thoms v. Heffernan, 2 Cir. 1973, 473 F.2d 478, vacated on other grounds, 1974, 418 U.S. 908, 94 S.Ct. 3199, 41 L.Ed.2d 1154.

Rather, Gillespie dictates that we give the finality requirement a "practical rather than a technical construction" and that the chief countervailing considerations are "the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other". 379 U.S. at 152-53 (quoting Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 and Dickinson v. Petroleum Conversion Corp., 1949, 338 U.S. 507, 511, 70 S.Ct. 322, 94 L.Ed. 299). With these considerations in mind, we conclude that the orders are sufficiently final to vest us with jurisdiction.

Our review of these orders does not raise the usual problems attending piecemeal review because it can be labelled "piecemeal" only in a distorted sense of the word. The orders would be undeniably final if the court had either granted or denied the injunctive relief asked for by the government instead of retaining jurisdiction to issue injunctions later if needed. The district courts otherwise fully decided every issue presented, including the two central issues before us now. These two substantive issues have formed the core of these cases from their inception, are the same issues we faced when the cases were first appealed to us, and are the same issues on which the Supreme Court granted certiorari before vacating our first judgment. These appeals are in effect a continuation of the first appeals. To resolve these issues now would impose no further inconvenience on the progress of this litigation. Indeed, refusal to decide these cases now would create cost and inconvenience without any benefit either to the parties or to the orderly administration of the appellate system. Should we refuse, the government will again seek to obtain the companies' records through administrative proceedings; the companies will again raise the two issues presented here; the government will apply to the district courts for an injunction; and, relying on their prior decisions, the courts will grant injunctions that will be clearly appealable under 28 U.S.C. § 1292(a)(1). The issues would in no way be better suited for appellate review than they are now, but the parties will have suffered the cost and delay that would attend this unnecessary use of administrative and judicial resources. And, given the unusual procedural history of these appeals, we need not fear that our decision to hear these appeals will open the door to a host of other appeals that are truly "piecemeal". ⁴

Liberty Mutual Insurance Co. v. Wetzel, 1976, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435, relied on heavily by the government, is inapposite. Appeal was denied there because the district court had issued a partial summary judgment, deciding for the plaintiffs only on the issue of liability but leaving open all issues concerning the relief sought. That is not the situation in these cases. The district courts decided every issue, including the appropriate relief.

II.

After the decisions in these cases were vacated and remanded to this Court, the Supreme Court issued its opinion in Chrysler Corp. v. Brown, 1979, 441 U.S. 281, 99 S.Ct. 1705, 60 L.Ed.2d 208. The defendant companies argue that the case casts doubt on the statutory authorization we found for E.O. 11246 and that Chrysler therefore undermines our first decision. ⁵

Chrysler Corporation brought suit against the Office of Federal Contract Compliance Programs (OFCCP), the agency charged with monitoring compliance with E.O. 11246. Chrysler sought an injunction to block that agency's public disclosure of information that the executive order had required Chrysler to furnish to the government. Chrysler argued, among other things, that public disclosure was barred by the Trade Secrets Act, 18 U.S.C. § 1905, which prohibits federal officials from...