Ford v. U.S. Steel Corp., 78-1246

• Decision Date: 02 March 1981
• Docket Number: No. 78-1246,78-1246
• Citation: 638 F.2d 753
• Parties: 26 Fair Empl.Prac.Cas. 425, 25 Empl. Prac. Dec. P 31,613 John S. FORD, Plaintiff-Appellant, Willie Cain et al., Plaintiffs, v. UNITED STATES STEEL CORPORATION, etc. et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 753

638 F.2d 753

26 Fair Empl.Prac.Cas. 425,

25 Empl. Prac. Dec. P 31,613

John S. FORD, Plaintiff-Appellant Willie Cain et al., Plaintiffs, v. UNITED STATES STEEL CORPORATION, etc. et al., Defendants-Appellees.

No. 78-1246.

United States Court of Appeals Fifth Circuit.

March 2, 1981.

U. W. Clemon, Oscar W. Adams, Jr., Birmingham, Ala., Barry L. Goldstein, Washington, D.C., Jack Greenberg, New York City, for plaintiff-appellant.

Michael H. Gottesman, Robert M. Weinberg, Julia Penny Clark, Washington, D.C., Jerome A. Cooper, Birmingham, Ala., for U. S. Steelworkers.

Cooper, Mitch & Crawford, Birmingham, Ala., for U. S. Steelworkers, Etc., Local 1733 & Wm. Daniels.

Bernard Kleiman, Chicago, Ill., Carl B. Frankel, Pittsburgh, Pa., for U. S. Steel Corp.

Thomas, Taliaferro, Forman, Burr & Murray, James R. Forman, Jr., William K. Murray, Birmingham, Ala., for defendants-appellees.

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

Before HILL, KRAVITCH and THOMAS A. CLARK, Circuit Judges.

JAMES C. HILL, Circuit Judge:

These efforts to rectify the racially separate and unequal employment system at the massive Fairfield Works of the United States Steel Corporation began in the mid-1960s, shortly after the enactment of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Significant progress has been made, yet the litigation continues. Liability is no longer questioned, but issues of relief specifically issues concerning the class status of some of those seeking relief remain unresolved. This latest twist in the somewhat convoluted history of the class action aspects of this case arises from the district court's decertification, after an earlier remand, of a class which it had certified sua sponte at the conclusion of the trial. Explaining that the new "class had been formed with insufficient attention paid to the strictures of Fed.R.Civ.P. Rule 23," the district court dismissed the case. Although we agree that the requirements of Rule 23 may have been strained by the district court's certification of this class, we believe that the decertification of the class and dismissal of the case may work an injustice on those who may have relied on that certification. Consequently, we vacate the order decertifying the class and dismissing the case, and instruct the district court: (1) to determine whether there is a class of persons who were encompassed by the "new" class and whose claims have not been litigated; (2) to determine whether or not the class includes persons who have a genuine controversy with defendants; (3) to indicate the scope of that class; and (4) if necessary, to name an appropriate class representative to supplant named plaintiff and class representative Ford.

I.

When John Ford ¹ first filed race discrimination charges against the United States Steel Corporation, ² he purported to represent all "persons similarly situated who are employed by the United States Steel Corporation and its mills, plants, and/or other facilities located in the State of Alabama and in and around the City of Birmingham, and who are members of the United Steel Workers of America, AFL-CIO, and Local 1733 of the United Steel Workers of America, AFL-CIO ...." October 7, 1966 Complaint; Record at 2. Ford's complaint was one of three filed in 1966 against United States Steel alleging race discrimination at the Fairfield Works; ³ each complaint was brought on behalf of a class. ⁴ The district court, however, found that the complaints did "not sufficiently or properly define" the classes ⁵ and required that the complaints be amended. Consequently, the original Ford class was modified and restricted to "Negro persons similarly situated, who are employed in the Rail Transportation Department of the United States Steel Corporation ...." Amendment to the Complaint, September 29, 1967; Record at 13. These suits, along with a number of others including a government "pattern or practice" suit directed against the entire Fairfield Works, ⁶ were consolidated for trial. United States Steel was adjudged liable and injunctive relief was granted, but only three of the back pay claims, including Ford's, were successful. ⁷ Appeals were filed by the government and the other unsuccessful claimants.

Meanwhile, the government was in the process of negotiating a nation-wide employment discrimination consent decree with the steel industry. ⁸ See United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826 (5th Cir. 1975). The plaintiffs in the consent decree the Equal Employment Opportunity Commission and the United States stipulated that the settlements reached were remedially adequate to bring the steel industry into compliance with federal antidiscrimination law and to compensate individual employees for the past and continuing effects of the industry's discriminatory practices. ⁹ The government also agreed to proceed within the mechanics of the consent decree in lieu of seeking additional judgments. Id. at 838.

The district court correctly predicted that the government, in light of the nation-wide settlement, would withdraw its appeal from the district court's judgment in the pattern or practice suit. Recognizing that the vast majority of the black employees at Fairfield would thus be left without a representative, the district court decided sua sponte to create a new class including those employees; this, the district court reasoned, would assure that the order denying back pay would be reviewed by the court of appeals. The creation of this new class was accomplished as a part of the final judgment in the consolidated cases. The district court named Ford class representative, despite the fact that Ford was, in the same judgment, found to have been successful in his claim for back pay. The court defined the new class as "all black persons who have at any time prior to January 1, 1973, been employed at the Fairfield Works (except to the extent they may be otherwise included as a class member (in one of the classes already certified))." May 2, 1973 Decree; Record at 128.

Ford, as representative of the new class, succeeded in having the adverse back pay ruling reversed. ¹⁰ The appellate court, however, instructed the district court to "carefully redetermine the propriety of the amorphous 'new' Ford class in light of the consequences of binding such a group to a final judgment." United States v. United States Steel Corp., 520 F.2d at 1048. Thus, while it acted on the appeal by vacating the order denying back pay, the appellate court was uncomfortable with the "new" Ford class. ¹¹ Additionally, it instructed the district court to address issues concerning the scope of Ford's standing. ¹²

The district court, interpreting these instructions, stated that its "first task" was "to determine anew the extent, if any, to which (Ford) should, with respect to back pay claims, represent other blacks employed at Fairfield prior to January 1, 1973, who were not represented in other private class actions when the cases were tried in 1972." District Court's Memorandum Opinion, October 13, 1977; Record at 53. Conceding that its sua sponte class certification was an "expediency" accomplished "with insufficient attention paid to the strictures of Fed.R.Civ.P. 23" and declaring that "the appellate court, in relieving the 'new' Ford class of the binding effect of a judgment adverse to it, also relieved this court from being bound by its certification of that class," id. at 55-56, the district concluded, "with some trepidation," that the class had been improperly formed and that Ford was an inappropriate class representative, ¹³ even though it recognized that its refusal "to accord class action status to any part of the 'new' Ford class would have the effect of terminating the action as a whole." ¹⁴ Id. at 53. Final judgment dismissing the suit was entered on October 13, 1977.

The dismissal prompted a flurry of legal activity; motions to intervene ¹⁵ and to alter or amend the judgment were filed with the court. Ford's motion to alter or amend was denied because no new significant evidence was brought to the district court's attention. The motion to intervene was denied because (1) the district court ruled it untimely under Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir. 1977) ¹⁶ and (2) intervention would have been denied by the district court under Fed.R.Civ.P. 24(b)(2) even if it had been timely. ¹⁷

The present appeal is from the district court's dismissal of the suit. Although only Ford has appealed, we have been asked to consider issues concerning the would-be intervenors as well.

II.

Recently we have received considerable instruction from the Supreme Court relevant to class actions and the Article III "case or controversy" jurisdictional requirement. Of particular interest is United States Parole Comm'n v. Geraghty, 445 U.S. 388, 100 S.Ct. 388, 63 L.Ed.2d 479 (1980). Geraghty does not answer all our questions in fact, the single question Geraghty clearly answers is not at issue here but it does give us direction. Geraghty, a federal prisoner whose parole application had been denied, challenged recently promulgated parole release guidelines on behalf of "all federal prisoners who are or will become eligible for release on parole." Id. at 393, 100 S.Ct. at 1206. The district court denied class certification and ruled against Geraghty on his individual claims. Geraghty appealed. Meanwhile, another prisoner who, like Geraghty, had been denied parole through application of the guidelines sought to intervene "to ensure that the legal issue raised by Geraghty on behalf of the class '(would) not escape review ....' " Id. at 394, 100 S.Ct. at 1207. Intervention too was denied, and all appeals were consolidated. Before appellate briefs were filed, however, Geraghty completed his sentence and was mandatorily released. The Parole Commissioner moved to dismiss the appeals as moot.

Earlier cases had...