Cook v. Birmingham News, 78-3096

• Decision Date: 13 June 1980
• Docket Number: No. 78-3096,78-3096
• Citation: 618 F.2d 1149
• Parties: 22 Fair Empl.Prac.Cas. 1782, 23 Empl. Prac. Dec. P 31,022 Willie COOK et al., Plaintiffs-Appellants, v. The BIRMINGHAM NEWS et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1149

618 F.2d 1149

22 Fair Empl.Prac.Cas. 1782,

23 Empl. Prac. Dec. P 31,022

Willie COOK et al., Plaintiffs-Appellants, v. The BIRMINGHAM NEWS et al., Defendants-Appellees.

No. 78-3096.

United States Court of Appeals Fifth Circuit.

June 13, 1980.

Robert L. Wiggins, Jr., Birmingham, Ala., for plaintiffs-appellants.

Marilyn S. G. Urwitz, Lutz Alexander Prager, Equal Employment Opportunity Commission, Washington, D. C., for amicus curiae.

Johnston, Barton, Proctor, Swedlaw & Naff, Hubert A. Grissom, Jr., Birmingham, Ala., for the Birmingham News Co.

Adair, Goldthwaite, Stanford & Daniel, Patrick M. Scanlon, James B. Coppess, Atlanta, Ga., for the Birmingham Printing Pressmen's Union No. 55.

Coretti, Newsom & Rogers, N. Daniel Rogers, Jr., Samuel Maples, Birmingham, Ala., for International Brotherhood of Electrical Workers.

Edward J. Fillenwarth, Indianapolis, Ind., for International Mailers Union.

Appeal from the United States District Court for the Northern District of Alabama.

Before TJOFLAT and SAM D. JOHNSON, Circuit Judges, and SEAR ^*, District Judge.

TJOFLAT, Circuit Judge:

This is an appeal from the order of the United States District Court for the Northern District of Alabama "clarifying" the consent decree of March 25, 1975, entered by that court in a Title VII ¹ class action involving the parties to this appeal. Because we find that the district court lacked jurisdiction to entertain the motion for clarification of the decree, we vacate the order.

I

The appellants in the present proceedings are black employees of the Birmingham News Company (Company) who were plaintiffs in the Title VII class action. They filed the complaint in that suit on May 25, 1973, naming as defendants the Company and seven historically all-white newspaper workers' unions. The complaint alleged that the defendants had violated Title VII by engaging in numerous racially discriminatory practices that had the effect of locking black employees into the lowest paying and most undesirable jobs at the Company. Record at 4. On March 25, 1975, after substantial discovery and after members of the plaintiff class had been notified, the district court entered a consent decree without objection by any party.

The consent decree recites that the Company has taken "substantial, meaningful, and effective measures" to improve the employment opportunities of its black employees. Record at 20. It then states:

8. EQUAL EMPLOYMENT GOALS. . . . In consideration of these factors, the Court declines plaintiffs' prayer for injunctive relief and adopts the parties' recommendations of equal employment goals to be pursued by the Company in good faith, as follows: To the end that the number of blacks employed as Apprentices and Over The Road Drivers for Mercury Express (a Birmingham News subsidiary) will continue to be increased.

9. COLLECTIVE BARGAINING AGREEMENTS. This Decree shall not alter or effect (sic) the terms of existing or future collective bargaining agreements between the company and the defendant unions except as such terms may be in conflict with the terms of this Decree or the provisions of Title VII of the Civil Rights Act of 1964.

10. BACK PAY. Those members of the plaintiff class . . . are deemed entitled to an award of back pay. The company and plaintiffs have agreed as to the identity of those so entitled and the amounts due each.

11. ATTORNEY FEES AND COSTS. The Company shall pay plaintiffs' counsel a reasonable attorney's fee and counsel's costs in an amount to be agreed upon by the parties.

Id. at 20-21. The decree purports to be "a full and final adjudication on the merits of all claims of systemic racial discrimination which have or might have been asserted on behalf of the class in this action, and of the claims of racial discrimination asserted by the plaintiffs individually named herein." Id. at 20.

In August 1975, five months after the entry of the consent decree, several black employees of the Company complained to their employer that the "union priority" system governing employees' selection of days off, shifts, and vacation schedules was unfair to black employees. The union priority system had been established through collective bargaining. An employee's union priority reflected the length of time he had been a journeyman member of the union that had jurisdiction over the department in which he worked. Since the unions had traditionally excluded all blacks, black employees had been unable to establish priority over white union members who had worked for the company for a shorter time. In response to the complaints, the Company informed its black employees and the unions that black employees would be given the opportunity to claim "company seniority" based on the total time they had worked for the Company.

The record does not reveal the number of black employees who responded to the Company's announcement and claimed their company seniority in selecting days off, shifts, and vacation schedules. In September 1977, Willie Cook and Curley Kemp, black pressroom employees who had previously declined to assert their company seniority, indicated that they had decided to take advantage of that seniority. Beginning on October 3, 1977, the Company permitted them to do so. Consequently, they moved up the pressroom seniority ladder from the thirty-second and thirty-third positions to the third and fifth positions.

On July 10, 1978, the Birmingham Printing Pressmen's Union Local No. 55 (Union), responded to this change in seniority rankings by moving the district court to "clarify" the consent decree. The motion asked the court to rule that the consent decree did not authorize the Company to depart from the Union priority system that had been established through collective bargaining. The court granted the motion, enjoining the Company "from enforcing any seniority system other than that under the applicable collective bargaining agreements as interpreted and applied . . . " Id. at 58.

Cook and other black employees, acting individually and as representatives of the plaintiff class that had instituted the Title VII suit, brought this appeal from the district court's order.

II

Courts of equity have long recognized and exercised a power to modify or set aside their injunctive decrees in the light of changed circumstances. Justice Cardozo summed up this equitable power in Unites States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932):

We are not doubtful of the power of a court of equity to modify an injunction in adaptation to changed conditions, though it was entered by consent. . . . Power to modify the decree was reserved by its very terms, and so from the beginning went hand in hand with its restraints. If the reservation had been omitted, power there still would be by force of principles inherent in the jurisdiction of the chancery. A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need.

The procedure for obtaining the equitable relief that Justice Cardozo described was codified in the Federal Rules of Civil Procedure in 1948 with the adoption of rule 60(b)(5). The rule permits a court to grant relief from a final judgment when "the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application." It is the final ground for relief that is based on the equitable doctrine set out in Swift. See 11 C. Wright & A. Miller, Federal Practice and Procedure § 2863 (1973).

Generally a rule 60(b)(5) motion founded on the inequity of the continuing operation of a judgment asks the district court to "modify" or "vacate" the judgment. The Union urges that the cases dealing with a court's power to modify or set aside a consent decree are inapplicable since the Union asked the district court only to "interpret" or "clarify" the decree. It makes no difference, in our view, that the motion was framed in terms of "clarification" rather than "modification." Courts have entertained motions under rule 60 to "clarify" judgments without distinguishing them from motions to modify or set aside judgments. See, e. g., Arkansas Community Organization for Reform Now v. Coleman, 531 F.2d 864, 867 (8th Cir. 1976). Even if the Union's motion did not explicitly request an alteration of the rights of the parties to the decree, it certainly asked the court to "modify" the decree by interpreting definitively terms of the decree and, in effect, rights of the parties that were previously unclear. Moreover, if Fed.R.Civ.P. 60 is inapplicable, we know of no legal doctrine or rule of civil procedure that even arguably could have empowered a district court to hear, three years after entry of a consent decree that acts as a final judgment, a motion to reconsider the decree. Although the Union's motion was not framed as a rule 60(b) motion ², we conclude that the district court must have treated the proceeding as such. See Chance v. Board of Examiners, 561 F.2d 1079, 1086 n. 16 (2d Cir. 1977); cf. Bros Inc. v. W. E. Grace Manufacturing Co., 320 F.2d 594, 606-08 (5th Cir. 1963) (court treated...