Bauman v. U.S. Dist. Court

• Decision Date: 01 July 1977
• Docket Number: No. 76-2156,76-2156
• Citation: 557 F.2d 650
• Parties: 15 Fair Empl.Prac.Cas. 279, 14 Empl. Prac. Dec. P 7700 Holly W. BAUMAN et al., Petitioners, v. UNITED STATES DISTRICT COURT, Respondent, Union Oil Company, Real Party in Interest.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 650

557 F.2d 650

15 Fair Empl.Prac.Cas. 279, 14 Empl. Prac.

Dec. P 7700

Holly W. BAUMAN et al., Petitioners, v. UNITED STATES DISTRICT COURT, Respondent, Union Oil Company, Real Party in Interest.

No. 76-2156.

United States Court of Appeals,

Ninth Circuit.

July 1, 1977.

Marcy C. Dunlap, Nancy L. Davis, Joan Messing Graff, Wendy W. Williams, Equal Rights Advocates, San Francisco, Cal., submitted for petitioners.

James L. Browning, Jr., U. S. Atty., San Francisco, Cal., submitted for respondent.

Robert S. Daggett, Brobeck, Phleger & Harrison, San Francisco, Cal., for real party in interest.

Vera Winter Lee, Equal Employment Opportunity Commission, San Francisco, Cal., for intervenors.

Susan J. Johnson, Equal Employment Opportunity Commission, Washington, D. C., for amicus curiae.

Petition for Writ of Mandamus from the United States District Court for the Northern District of California.

Before HUFSTEDLER, GOODWIN and WALLACE, Circuit Judges.

WALLACE, Circuit Judge:

Bauman and Espinola, plaintiffs in a sex-discrimination-in-employment suit brought against Union Oil Company under Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e et seq., moved the district court to certify their action as a class action pursuant to Rule 23(b)(2), Fed.R.Civ.P. Pursuant to Rule 23(c) (1) and (d)(2), the court conditionally certified the class, ordered the plaintiffs to "give individual notice to all class members identifiable through reasonable effort," and prescribed the contents of the notice. Bauman and Espinola (hereafter referred to jointly as Bauman) thereupon petitioned this court for a writ of mandamus commanding the district court to modify portions of its order. We decline to issue the writ.

I

In 1973, Bauman filed a complaint against Union Oil, alleging that the company's employment practices in its San Francisco and Sacramento offices regarding hiring, promotion, compensation, discipline, termination and pregnancy leave violated Title VII's proscriptions of sex-based discrimination in employment. The complaint sought injunctive and other equitable relief and back-pay. On October 17, 1975, Bauman moved for an order certifying the action as a class action pursuant to Rule 23(a) and (b)(2), Fed.R.Civ.P. The motion was accompanied by both a thorough brief of the legal issues and an extensive, detailed summary of the factual underpinnings of the complaint and the class certification motion. ¹

On March 19, 1976, the district court responded to the motion with the following oral order:

It's the judgment of the Court with reference to the various motions that we have on file in this matter, first that the plaintiffs' motion for a class certification, with reference to that, I'm going to provisionally certify this as a class under 23(c) (1), provisionally, and I direct the plaintiffs to give notice at their own expense to everyone in the class, and notice should include a provision that the member can opt out, if they so desire to opt out. If they want to stay in, then they should give a short statement of what the discrimination against them has been. If they say there's been no discrimination, then they should so state and are thereby bound by their statement.

Bauman thereafter moved the court to reconsider and modify its order. Specifically, she wanted the court to delete the "opt-out" provision and the provision regarding "a short statement" of discrimination or nondiscrimination.

On April 30, 1976, the district court filed a written order denying the motion for modification. In that order the court both clarified its prescription for the contents of the class notice and set forth its supporting reasoning. The order directed that the notice conform to the following guidelines:

(1) that the class member so notified be allowed to state whether or not she chooses to be excluded from the class, and, if so, whether the reason for that choice was (a) that the class member, while believing she has a claim against this defendant for discrimination on the basis of sex, does not wish to be represented in this class by these plaintiffs, or (b) that the class member does not believe that any discrimination on the basis of sex has been practiced against her by this defendant, in which case she should so state and be bound thereby; and (2) that if the class member so notified desires to remain in the class, she submit a short statement of the nature of the sex discrimination charge she believes she has against this defendant.

In support of the notice requirement, the court stated that "(a)t the time of plaintiffs' request for certification, the court was without a proper factual foundation definitively to conclude that all requirements of Rule 23 had been met." Accordingly, the notice was a means of obtaining information in order to determine whether the Rule 23(a) elements of numerosity, typicality, commonality, and adequacy of representation were satisfied prior to final class certification. The court viewed Rule 23(d)(2) as the source of its authority to order the special notice. ²

Soon after the filing of the order of April 30, Bauman petitioned this court for a writ of mandamus commanding the district court to delete from that order "those provisions . . . which permit class members to 'opt out' of the action below for injunctive relief, and which require class members to 'opt in' by making individualized allegations of discrimination in order to be represented in the said action . . . ." not ³

II

One of the most significant challenges presently facing the federal appellate courts centers on the use of their power to issue extraordinary writs under the venerable All Writs Statute, 28 U.S.C. § 1651. Since the advent of the concept of "supervisory mandamus" in LaBuy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957), the challenge to the federal appellate courts has been to formulate objective principles to guide the exercise of their section 1651 power. The dangers of unprincipled use of that power are obvious. In the absence of guiding and limiting principles, appellate use of the peremptory writs could readily subvert the policies underlying the finality rule, 28 U.S.C. § 1291, or the carefully limited congressional scheme governing interlocutory appeals, 28 U.S.C. § 1292. ⁴ Unprincipled use of that power could also operate to undermine the mutual respect that generally and necessarily marks the relationship between federal trial and appellate courts. ⁵ Further, without articulable and practically applicable guidelines to govern the issuance of extra-ordinary writs, appellate judges would continually be subject to the temptation to grant such relief merely because they are sympathetic with the purposes of the petitioners' underlying actions, or because they question the trial court's ability to direct the litigation efficiently or impartially. As with many other facets of judicial power, the continuing effectiveness of an appellate court's section 1651 power depends on its reasoned and principled exercise.

A review of Supreme Court and recent Ninth Circuit cases pertaining to the appellate use of peremptory writs discloses some general admonitory language and five guiding principles. The admonitory language has been partially collected in the Supreme Court's most recent case on the subject, Kerr v. United States District Court, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976), aff'g, 511 F.2d 192 (9th Cir. 1975):

The remedy of mandamus is a drastic one, to be involved only in extraordinary situations. Will v. United States, 389 U.S. 90, 95 (88 S.Ct. 269, 273, 19 L.Ed.2d 305) (1967); Banker's Life & Cas. Co. v. Holland, 346 U.S. 379, 382-385 (74 S.Ct. 145, 147-149, 98 L.Ed. 106) (1953); Ex parte Fahey, 332 U.S. 258, 259, (67 S.Ct. 1558, 1559, 91 L.Ed. 2041) (1947). As we have observed, the writ "has traditionally been used in the federal courts only 'to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.' " Will v. United States, 389 U.S., at 95, (88 S.Ct. (269), at 273) quoting Roche v. Evaporated Milk Assn., 319 U.S. 21, 26 (63 S.Ct. 938, 941, 87 L.Ed. 1185) (1943). And, while we have not limited the use of mandamus by an unduly narrow and technical understanding of what constitutes a matter of "jurisdiction," Will v. United States, 389 U.S., at 95, (88 S.Ct. (269), at 273) the fact still remains that "only exceptional circumstances amounting to a judicial 'usurpation of power' will justify the invocation of this extraordinary remedy." Ibid.

Id. at 402, 96 S.Ct. at 2124. Other cases and authorities bristle with language likewise suggesting that mandamus will issue only in "drastic," "exceptional" and "extra-ordinary" circumstances. E. g., Will v. United States, 389 U.S. 90, 95-96, 107, 108, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); Arthur Young & Co. v. United States District Court, 549 F.2d 686, 691-692 (9th Cir. 1977); Kerr v. United States District Court, 511 F.2d 192, 196 (9th Cir. 1975), aff'd, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); Hartley Pen Co. v. United States District Court, 287 F.2d 324, 328 (9th Cir. 1961); 9 J. Moore, Federal Practice P 110.28, at 302. In addition, as the Supreme Court twice stated in Will, review by mandamus does not "run the gauntlet of reversible errors." Will v. United States, supra, 389 U.S. at 98 n.6, 104, 88 S.Ct. at 275.

Although this admonitory language is helpful in framing the boundaries of section 1651 power, it serves at most only as a starting point in the effort to develop a specific framework which can assist when practical application of the generalities is required. Even more helpful in that task are the judicial directions discernible from an analysis of the cases dealing with mandamus. From those cases we have identified five specific guidelines: (1) The party seeking the writ has no other adequate means, such as a...