United States ex rel. Clark v. Gramer

• Decision Date: 10 October 1969
• Docket Number: No. 26746.,26746.
• Parties: UNITED STATES of America, by Ramsey CLARK, Attorney General of the United States, Plaintiff-Appellant, v. Richard Ebbert GRAMER d/b/a Tall Pine Inn Restaurant, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

418 F.2d 692 (1969)

UNITED STATES of America, by Ramsey CLARK, Attorney General of the United States, Plaintiff-Appellant, v. Richard Ebbert GRAMER d/b/a Tall Pine Inn Restaurant, Defendant-Appellee.

No. 26746.

United States Court of Appeals Fifth Circuit.

October 10, 1969.

Gary J. Greenberg, Atty., Dept. of Justice, Washington, D. C., Richard B. Hardee, U. S. Atty., Tyler, Tex., Carl R. Roth, Asst. U. S. Atty., Stephen J. Pollak, Asst. Atty. Gen., for plaintiff-appellant.

Clyde E. Smith, Jr., Woodville, Tex., for defendant-appellee.

Before AINSWORTH and SIMPSON, Circuit Judges, and MITCHELL, District Judge.

SIMPSON, Circuit Judge:

This appeal is from a "consent" decree entered without a trial by the trial court, enjoining appellee from certain activities proscribed by the public accommodations provisions of the Civil Rights Act of 1964.¹

The complaint alleged that appellee, in the operation of his restaurant at Woodville, Tyler County, Texas, "maintains a dining area in the front portion of the establishment in which only whites are served and maintains a separate dining area in the back of the establishment for the service of Negro patrons". The complaint sought an injunction restraining the proprietor from maintaining dual dining areas for Negro and white patrons.

A pre-trial conference was held at which the parties made several concessions to each other. It was agreed that the Tall Pine Inn Restaurant was an establishment principally engaged in selling food for consumption on the premises; that it serves and offers to serve interstate travelers; that a substantial portion of the food and other products sold by the establishment had moved in interstate commerce from outside the State of Texas to within that state, that the Tall Pine Inn Restaurant is a place of public accommodation which affects commerce within the meaning of Title II. It was further agreed that the appellee had previously engaged in a policy or practice of refusing to provide food and service to Negroes on the same basis that food and service were provided to white members of the general public, and that he had maintained separate dining areas for Negroes and white persons. In a word, both coverage under the Act and a prior pattern of violation were stipulated.

Appellee was also agreeable to injunctive provisions requiring future compliance with the Act by affording to all persons "without discrimination or segregation on the ground of race, color, religion, or national origin" enjoyment of all the goods, services and facilities of the establishment. Appellee, however, refused to agree to certain stipulations of the government contained in the government's "Proposed Consent Decree", that is that appellee be ordered to close a separate dining room used only by Negro patrons on a freedom-of-choice basis and to seat and serve all patrons in the main dining room, using the spare dining room only after the main dining room is filled, and to post signs in, and on the exterior door of the Negro dining room to this effect.

The district judge agreed with appellee that the additional relief sought by the government was not necessary or required by the Civil Rights Act, denied a hearing on the merits, and consequently entered no findings of fact or conclusions of law. In denying the additional affirmative relief sought by the government, that is, sequential seating and signs calling attention thereto, the district judge said:

"* * * the Court feels that the law does not go to this extent in requiring a man, or specifying how a man or the person shall use their property if he is not violating any provisions of the Civil Rights Act, and is operating on a nondiscriminatory basis * * * I don\'t believe that the law would be so high handed as to tell a man whether he should use the front portion of his building before he uses the back portion * * *"

The decree, however, does order appellee to maintain signs on the exterior of the rear door of the Negro dining room and in a prominent place within that dining room, which are to read:

"This establishment is a public accommodation within the meaning of the Civil Rights Act of 1964. All of its facilities are open to all persons on an equal basis, and all persons are welcome and entitled to service in the front dining area without regard to their race, color, religion or national origin."

The government argues that the additional relief sought is necessary to overcome the effects of past discrimination and was prepared to show on trial evidence of appellee's bad faith to avoid discrimination, to-wit: Despite an agreement in 1966 between the government and appellee whereby appellee consented to pursue a "free-choice" policy, Negroes who requested service in the main dining area were still sent to the Negro dining room; employees were instructed not to serve Negroes in the front room; one employee was instructed by appellee to lie to FBI agents investigating complaints of discrimination.

Did the district judge err in entering a "consent" judgment granting an injunction which did not conform with all of the relief sought by appellant, without affording appellant a hearing to present evidence supporting the need for such additional relief? We agree with the appellant that this was error, and reverse.

The appellant argues, and correctly so, that under F.R.Civ.P. 52(a), a district court is required to make findings of fact and conclusions of law. The Rule expressly includes injunctions in its requirements. Implicit in this Rule is the necessity of a hearing of the factual issues. F.R.Civ.P. 65, regulating procedure on applications for injunctive relief, also contemplates a trial on the merits.

Both the Second and Tenth Circuits have held in cases cited by the government that where there is no agreement by the parties there can be no "consent" judgment, Sawyer v. Mid-Continent Petroleum Corporation, 10 Cir. 1956, 236 F.2d 518; Artvale, Inc. v. Rugby Fabrics Corp., 2 Cir. 1962, 303 F.2d 283, and the Court is powerless to expand or contract that agreement, Artvale, supra. Not cited by the appellant is the Supreme Court decision in United States v. Ward Baking Co., 376 U.S. 327, 84 S.Ct. 763, 11 L.Ed.2d 743 (1964), a civil anti-trust action, which is controlling on this issue. In Ward, as here, there was no trial, and there was opposition by the government to the proposed "consent" judgment on the grounds that the evidence that could be produced at trial would justify the requested enlargement of the injunction issued by the district court. The "consent" judgment proposed by the defendant bakery companies, which the district judge² entered, generally enjoined the companies from conspiring to submit rigged bids for supplying bakery products to the United States. The government opposed entry of the judgment, alleging that the injunction should contain prohibitions against price fixing in sales also to parties other than the United States. Although the complaint was limited to sales to the U.S. Naval installations in the Jacksonville, Florida, area, the prayer of the complaint included a request for "such further, general, and different relief as the nature of the case may require and the Court may deem appropriate in the premises". The Supreme Court regarded this language as broad enough to cover the disputed provisions. (The record before the district court moreover showed that defendants had been indicted previously for the same acts charged in the civil action and that four of the five defendants had also been indicted on charges of conspiracy to fix prices on non-governmental sales, and all defendants had entered pleas of nolo contendere resulting in fines.) The Court found (p. 766) that "the additional relief sought by the Government had a reasonable basis under the circumstances and that, consequently, the district Court erred in entering the `consent' judgment without the Government's actual consent". The Court concluded (p. 768) that "there was a bona fide disagreement concerning substantive items of relief which could be resolved only by trial" and in vacating and remanding for trial said, "We decide only that where the Government seeks an item of relief to which evidence adduced at trial may show that it is entitled, the District Court may not enter a `consent' judgment without the actual consent of the Government".

The complaint in the instant case contains a prayer similar to that in Ward: it seeks "such additional relief as the interest of justice may require". Inasmuch as the government did not consent to the decree, this Court must decide whether the evidence which the government seeks to introduce at trial (actual violation by appellees of the Civil Rights Act in refusing Negroes service in the main dining room, instructing its employees to refuse such service and to lie to FBI agents) provides a reasonable basis for remanding the case for a trial. We think remand is required. This does not necessarily mean that the United States will or should prevail. Inasmuch as there has been no trial below and there are consequently no findings of fact and conclusions of law for us to review, we express no views as to the merits of the case. We hold simply, under the teaching of Ward, supra, that the government must be afforded an opportunity to prove, and the appellee afforded an opportunity to disprove, that the additional relief sought is warranted.

In a recent decision by this Court concerning desegregating cafeteria facilities under the public accommodations section of the Civil Rights Act, United States v. Richberg, 5 Cir. 1968, 398 F.2d 523, 530, 531, we said:

"`It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform * * *.\' United States v. Oregon State Medical Soc., 1951, 343 U.S. 326, 333, 72 S.Ct. 690, 696, 96 L.Ed. 978 * * *. This court must look to the future as well as to the past. We must insure that wrongs are not

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