United States v. LOCAL 638, ENTERPRISE ASS'N, ETC.

• Decision Date: 14 June 1972
• Docket Number: No. 71 Civ. 2877.,71 Civ. 2877.
• Citation: 347 F. Supp. 164
• Parties: UNITED STATES of America, Plaintiff, v. LOCAL 638, ENTERPRISE ASSOCIATION OF STEAM, HOT WATER, HYDRAULIC SPRINKLER, PNEUMATIC TUBE, COMPRESSED AIR, ICE MACHINE, AIR CONDITIONING AND GENERAL PIPEFITTERS, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

347 F. Supp. 164

UNITED STATES of America, Plaintiff, v. LOCAL 638, ENTERPRISE ASSOCIATION OF STEAM, HOT WATER, HYDRAULIC SPRINKLER, PNEUMATIC TUBE, COMPRESSED AIR, ICE MACHINE, AIR CONDITIONING AND GENERAL PIPEFITTERS, et al., Defendants.

No. 71 Civ. 2877.

United States District Court, S. D. New York.

June 14, 1972.

J. Lee Rankin, Corp. Counsel for intervenors by Beverly Gross, Steven J. Sacks, New York City, of counsel.

Whitney North Seymour, Jr., U. S. Atty. for plaintiff by Howard S. Sussman, New York City, of counsel.

Cohn, Glickstein, Lurie & Ostrin, New York City, for defendant Local 28 by Sol Bogen, Daniel W. Meyer, New York City, of counsel.

GURFEIN, District Judge.

MEMORANDUM

The New York City Commission on Human Rights (the "City Commission") seeks to intervene as an additional party plaintiff in an action brought by the Attorney General of the United States, pursuant to Section 707(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6(a), against four local unions in the building construction industry in New York City which the Attorney General charges with having engaged in a pattern of discrimination against blacks and Puerto Ricans. One of the defendant unions is Local 28 of the Sheet Metal Workers International Association ("Local 28"). For purposes of trial, the action has been divided into four parts, the case against each local union to be tried separately. The consideration of the proposed intervention by the City Commission will be limited to the part of the action that is against Local 28, which does not oppose permissive intervention. Regardless of this consent, the Court must find jurisdiction to exist in order to permit the intervention.

I

Intervention may be considered either under Rule 24(a) or 24(b), the City Commission having moved in the alternative.

Rule 24(a) deals with intervention of right. That rule provides that "anyone shall be permitted to intervene in an action . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties."

I cannot find that the interests of the residents of New York are not adequately represented by the Department of Justice of the United States. Yet this would have to be a necessary finding to permit intervention as of right. There is no evidence to support such a finding. Cf. Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972). In any event, a broad construction of the word "transaction" in order to allow intervention of right seems undesirable. It is better to consider permissive intervention under Rule 24(b), so that the District Court is not bound to accept intervention by cities or their agencies, as a matter of right, in the variety of cases that come before this Court.

I recognize that, from the point of view of federal jurisdiction, the former would be the easier course to take. For in the case of an intervention of right, independent federal jurisdiction is not required whether jurisdiction in the original action is based on diversity of citizenship or on a federal question. See United States to Use and for Benefit of Foster Wheeler Corp. v. American Surety Co. of New York, 142 F.2d 726, 728 (2 Cir. 1944); 3B Moore's Federal Practice ¶ 24.181 (2d ed. 1969).

II

The proposed intervention may, however, be considered as a permissive intervention under Fed.R.Civ.P. 24(b). There is no "statute of the United States which confers a conditional right to intervene" (Rule 24(b) (1)), nor does any party, strictly speaking, rely for ground of claim or defense upon a statute or executive order administered by the intervenor or any regulation (etc.) thereunder (Rule 24(b)). The action is exclusively based on a federal statute, the Civil Rights Act of 1964, which is not administered by any state agency and certainly not by the City Commission. But, in my opinion, the other ground for permissive intervention does exist here: "when an applicant's claim or defense and the main action have a question of law or fact in common" (Rule 24(b) (2)).

We start with the proposition that "Rule 24(b) (2) plainly dispenses with any requirement that the intervenor shall have a direct personal or pecuniary interest in the subject of the litigation." SEC v. United States Realty & Improvement Co., 310 U.S. 434, 459, 60 S.Ct. 1044, 1055, 84 L.Ed. 1293 (1940).

Second, where the interest of the intervenor "is a public one" the "claim or defense" in Rule 24(b) (2) founded upon this interest has a "question of law in common with the main proceeding." Id. 310 U.S. at 460, 60 S. Ct. at 1055.¹ The legal issues in the federal action are substantially the same as those which the City Commission is charged with determining as an administrative matter. "Although the rule speaks in terms of a `claim or defense' this is not interpreted strictly so as to preclude permissive intervention" where "the legal issues are the same." Nuesse v. Camp, 128 U.S.App.D.C. 172, 385 F.2d 694, 704 (1967); see Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv.L. Rev. 721, 733-34, 759 (1968).

After the Attorney General brought this action, the City Commission started an administrative proceeding against Local 28 by filing a charge of discrimination against it. The charge was that Local 28 had engaged in unlawful discriminatory practices in violation of the Administrative Code of the City of New York, Chapter I, Title B (the City Human Rights Law), specifically with respect to its membership, referral and apprenticeship practices. This federal action would not necessarily stop the City proceeding. The Congress has specifically disavowed an intent to occupy the field to the exclusion of state or local laws on the same subject matter. 42 U. S.C. §§ 2000h-4, 2000e-7.

The City Commission, however, seeks to intervene in the federal action on the ground that a decree of this Court ultimately would supersede to some degree its own administrative order, and that the status of the City as a regular contracting party with the construction industry gives it a direct financial interest in any order this Court may make. If intervention is granted, the Commission plans to discontinue its administrative proceeding. The City Commission also notes that the voluntary "New York Plan," designed to increase the representation of minorities within the construction trades and adopted in accordance with Presidential Executive Orders 11246 and 11375, may be affected by the federal case and that this might subject the City to federal sanctions. It alleges that Local 28 is the only construction union in the City which has refused to sign the Plan. Finally, the City Commission seeks to intervene in order to protect the City's citizens from racial and ethnic employment discrimination.

Permissive intervention seems justified in the circumstances. Intervention would permit the City to offer evidence and suggestions to the Court, which which might be helpful in this difficult and delicate area. There is no reason to believe that intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

III

Having chosen the harder course of considering permissive jurisdiction, the question of subject matter jurisdiction must be assessed.

The statute which specifically authorizes the Attorney General to bring this action, Title VII, § 707, 42 U.S.C. § 2000e-6, is silent on the question of intervention. The companion section relating to actions brought by the "aggrieved person" provides that the Court may stay its own proceedings to permit the state or local authority to remedy the practice alleged; Title VII, § 706(e), 42 U.S.C. § 2000e-5(e).² No such stay is provided in actions brought by the Attorney General under Section 707. That federal jurisdiction is mandated in such suit, without regard to state remedies, does not mean, however, that a companion proceeding by the state must be permitted to go on while the federal action proceeds. Two courses of action to avoid such a contretemps are apparent: (1) to enjoin the City Commission proceeding; or (2) to permit intervention by the City Commission in the federal action.

Whether this Court has jurisdiction in the first instance to halt the City Commission proceeding by injunction need not be decided. Cf. McNeese v. Board of Education, 373 U.S. 668, 83 S. Ct. 1433, 10 L.Ed.2d 622 (1963); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L. Ed.2d 663 (1962); Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358, 368-369 (1971) cert. granted District of Columbia v. Carter, 404 U.S. 1014, 92 S.Ct. 683, 30 L.Ed.2d 661 (1972); Adams v. City of Park Ridge, 293 F.2d 585, 587 (7 Cir. 1961). For I believe that there is subject matter jurisdiction which makes the intervention permissible. That result stems from the doctrine that if the suit proposed to be initiated by the intervenor is "ancillary and dependent, the jurisdiction of the court follows that of the original cause, and may be maintained without regard to the citizenship of the parties or the amount involved." Local Loan Co. v. Hunt, 292 U.S. 234, 239, 54 S.Ct. 695, 697, 78 L.Ed. 1230 (1934).³ This Circuit has stated that an ancillary suit may be maintained, inter alia, "to prevent the relitigation in other courts of the issues heard and adjudged in the original suit." See Pell v. McCabe, 256 F. 512, 515 (2 Cir.), aff'd, 250 U.S. 573, 40 S.Ct. 43, 63 L.Ed. 1147 (1919).⁴ "If a court has jurisdiction of the principal suit, it also has jurisdiction of any ancillary proceeding in that suit. Neither the citizenship of the parties, nor the amount in controversy, nor any other factor that would ordinarily determine jurisdiction, has any...