Roberts v. St. Regis Paper Co.

• Decision Date: 10 August 1981
• Docket Number: No. 79-2394,79-2394
• Citation: 653 F.2d 166
• Parties: 26 Fair Empl.Prac.Cas. 870, 26 Empl. Prac. Dec. P 32,025 Fred ROBERTS, et al., Plaintiffs-Appellees, v. ST. REGIS PAPER COMPANY, etc., et al., Defendants-Appellants. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 166

653 F.2d 166

26 Fair Empl.Prac.Cas. 870,

26 Empl. Prac. Dec. P 32,025

Fred ROBERTS, et al., Plaintiffs-Appellees, v. ST. REGIS PAPER COMPANY, etc., et al., Defendants-Appellants.

No. 79-2394.

United States Court of Appeals, Fifth Circuit.

Unit B

Aug. 10, 1981.

Edward M. Booth, Jacksonville, Fla., for International Ass'n of machinists.

Benjamin Wyle, Erwin J. Shustak, New York City, for United Paperworkers International Union.

William L. Durden, Jacksonville, Fla., Guy Farmer, Washington, D. C., for St. Regis Paper Co.

Mahon, Mahon & Farley, Joseph S. Farley, Jr., Jacksonville, Fla., Terry R. Yellig, Washington, D. C., for International Broth. of Elec. Workers.

Algia R. Cooper, Tallahassee, Fla., Jack Greenberg, Clyde E. Murphy, New York City, for Fred Roberts et al.

Vella M. Fink, Lutz Alexander Prager, Attys., Lorraine L. Davis, E.E.O.C., Washington, D. C., amicus curiae.

Appeals from the United States District Court for the Middle District of Florida.

Before KRAVITCH and THOMAS A. CLARK, Circuit Judges, and LYNNE ^*, District Judge.

KRAVITCH, Circuit Judge:

This appeal presents three questions arising from a 1972 consent decree. Appellees are a class of black employees who in 1970 brought an employment discrimination suit against appellants, their employer and representative labor unions, which suit culminated in the consent decree at issue. In 1979, appellees filed motions for partial summary judgment and preliminary injunction seeking enforcement of the decree; appellants responded that the decree had expired. The district court ruled that the decree remained in effect. We hold that the order appealed from is appealable as of right under 28 U.S.C. § 1292(a)(1) and that the district court correctly held that the consent decree remains binding on the parties.

I.

In 1970, appellees brought suit against their employer, St. Regis Paper Co., and their representative labor unions alleging racial discrimination in employment practices in violation of Title VII, 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1981. The district court certified the suit as a class action. The plaintiff class was defined as all incumbent black employees at the company's Jacksonville, Florida kraft mill, including those previously laid off, who were initially assigned to certain job classifications. Each member of the class was notified of the suit.

After extensive discovery but prior to any evidentiary hearings, the parties negotiated a settlement, and on January 28, 1972 the district court approved their agreement and entered a consent decree. This decree extended certain privileges to members of the affected class, including, inter alia, utilization of a system of mill seniority rather than job or departmental seniority with respect to job assignments. The consent decree contained a disclaimer of any liability and recited that the decree did not "constitute a finding or adjudication of any discriminatory act or practice on the part of the defendants."

The consent decree required the company to submit to the court semi-annual reports concerning both employees within the affected class and new job applicants. The decree also contained a clause entitled "XVI Jurisdiction" which provides:

Jurisdiction in this action for such other and further relief as may be appropriate consistent with this order is hereby retained until January 1, 1977, unless sooner modified, dissolved or extended.

On December 30, 1976, plaintiffs filed motions for contempt, for further relief, modification and extension of the consent decree, and for extension of jurisdiction pendente lite and hearing. In response, defendants argued that the court lacked jurisdiction to entertain the motions and that plaintiffs were guilty of laches. On January 30, 1978, the district court entered an order nunc pro tunc December 31, 1976, extending its jurisdiction over the consent decree pendente lite of the contempt proceedings, stating:

In the present case, therefore, the Court holds that plaintiffs' petition for contempt proceedings and motion to extend the Court's jurisdiction were timely filed and accordingly invoked the Court's jurisdiction to the extent, and for the purpose of ruling on that petition and motion only. Hence, the Court is not attempting to extend its jurisdiction generally over this case. All that the Court holds is that its jurisdiction was timely invoked to act upon allegations of contempt, and to rule upon the petition timely filed.

The substantive issues raised in the December 30, 1976 contempt motion have not yet been heard or decided.

On February 28, 1979, plaintiff class filed a motion for preliminary injunction and partial summary judgment, seeking an order declaring defendants to be continually obligated "to abide by the provisions of the Consent Decree mandating the permanent use of mill seniority when members of the affected class compete for employment positions." The defendants responded that under Clause XVI the district court lacked jurisdiction over the decree; in essence, they contended that the consent decree had a term of only five years that expired on January 1, 1977. Alternatively, they claimed that continued enforcement of the seniority provisions of the consent decree would be contrary to existing law, specifically, the Supreme Court's decision in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). On April 19, 1979, the district court held that Clause XVI did not limit the life of the decree and that it was intended to have lasting effect; consequently, the court held that it had jurisdiction to consider alleged violations of the consent decree that occurred after January 1, 1977. ¹ It is from that ruling that defendants appeal to this court. ²

II.

As a preliminary issue, we must determine whether the district court's order of April 19, 1979 is appealable so as to vest jurisdiction in this court. ³ 28 U.S.C. § 1291 provides that all final orders of the district courts are directly appealable to the court of appeals. The order appealed from in this case, however, is plainly not a final order. The district court did not rule on the motions for summary judgment and preliminary injunction, instead referring the case to a magistrate for further evidentiary hearings.

Under 28 U.S.C. § 1292 certain interlocutory orders of the district court may be appealed directly. Specifically relevant here is § 1292(a)(1), which provides that an appeal may be taken from an interlocutory order that grants, continues, modifies, refuses or dissolves, or refuses to dissolve or modify an injunction.

This court consistently has held that the appealability of an order under 28 U.S.C. § 1292 depends not on terminology but on the substantive effect of the order. See, e. g., Martinez v. Mathews, 544 F.2d 1233, 1236 (5th Cir.1976) (district court's order that interim board be elected was appealable because effect and character of the order was injunctive); Sayers v. Forsyth Building Corp., 417 F.2d 65, 67 (5th Cir.1969) (district court's order directing parties to litigate in state court was injunctive in nature and thus appealable under 28 U.S.C. § 1292(a)(1)); McCoy v. Louisiana State Board of Education, 345 F.2d 720, 721 (5th Cir.1965) (appealability of order depends, not on terminology, but on substantial effect of order); United States v. Lynd, 301 F.2d 818, 822 (5th Cir.), cert. denied, 371 U.S. 893, 83 S.Ct. 187, 9 L.Ed.2d 125 (1962) (district court's failure to rule on motion for injunction is equivalent to denial of injunction and appealable as such).

The district court in this case, although asked to rule on a motion for preliminary injunction, in its order neither granted nor refused to grant an injunction, instead sending the motion to a magistrate to conduct evidentiary hearings. The consent decree itself, however, entered by the court in 1972 and which appellees by the 1979 motion sought to enforce, provides for affirmative injunctive relief. It is settled that a consent decree may constitute an injunction for purposes of § 1292(a)(1). See, e. g., Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981); Myers v. Gilman Paper Co., 544 F.2d 837, 847 (5th Cir.), modified on other grounds, 556 F.2d 758 (1977). The specific provision of the decree at issue (clause II.B) orders the defendants to permanently utilize a system of mill seniority with respect to the affected class. In response to plaintiffs' motion, defendants contended that all provisions of the decree had expired; in essence, they asked the court to dissolve the injunction. In holding that the decree continues to be viable, the court's order had the practical effect of refusing to dissolve the injunction.

The Supreme Court has recently reaffirmed that "(f)or an interlocutory order to be immediately appealable under § 1292(a)(1) ..., a litigant must show more than that the order has the practical effect of refusing an injunction." Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981). Appeal as of right under § 1292(a)(1) is available only if the appellant can show that the interlocutory order "might have serious, perhaps irreparable, consequence" and that the order may be "effectually challenged" only by immediate appeal. Id. at 84, 101 S.Ct. at 996; Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955). In Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 98 S.Ct. 2451, 57 L.Ed.2d 364 (1978) and Switzerland Cheese Association, Inc. v. E. Horne's Market, Inc., 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966), the Court held interlocutory orders that refused the injunctive relief requested in the complaint not appealable because the orders lacked "serious, perhaps irreparable" consequences. In both cases, the petitioners had sought permanent injunctive relief only, and had neither filed motions...