Van Bronkhorst v. Safeco Corp.

• Decision Date: 16 January 1976
• Docket Number: No. 75--1735,75--1735
• Citation: 529 F.2d 943
• Parties: 12 Fair Empl.Prac.Cas. 178, 11 Empl. Prac. Dec. P 10,634 Erin VAN BRONKHORST et al., Plaintiffs-Appellees, Equal Employment Opportunity Commission, Intervenor-Appellant, v. SAFECO CORPORATION, through its subsidiary insurance companies et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 943

529 F.2d 943

12 Fair Empl.Prac.Cas. 178,

11 Empl. Prac. Dec. P 10,634

Erin VAN BRONKHORST et al., Plaintiffs-Appellees, Equal Employment Opportunity Commission, Intervenor-Appellant, v. SAFECO CORPORATION, through its subsidiary insurance

companies et al., Defendants-Appellees.

No. 75--1735.

United States Court of Appeals, Ninth Circuit.

Jan. 16, 1976.

Marian Halley (argued), EEOC, Washington, D.C., for intervenor-appellant.

Elizabeth J. Bracelin (argued), Seattle, Wash., J. David Andrews (argued), Seattle, Wash., for plaintiffs-appellees.

OPINION

Before KOELSCH and TRASK, Circuit Judges, and PALMIERI, ^* District Judge.

PALMIERI, District Judge.

This is an appeal by plaintiff-intervenor Equal Employment Opportunity Commission (EEOC or Commission) from an order dismissing it with prejudice 'except for the administration of any Consent Decree entered' in the case. This action was filed in August 1972 by private plaintiffs alleging sex discrimination in employment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Supp. II, 1972). Certifying that the case was one of general public importance, the EEOC moved for leave to intervene ¹ as a plaintiff in March 1973. Intervention was permitted by order of the District Court in June 1973. Following a motion by the private plaintiffs, supported by the Commission which promised to shoulder a large portion of the burden of managing the litigation, the suit was certified as a class action pursuant to Rule 24(b)(2), Fed.R.Civ.P. in July 1974. The scope of the class defined by the court was a very large one and included a nationwide class defined as 'all present female employees * * * all past female * * * employees who have terminated employment since September 1969 and all female applicants for jobs * * * since January 1, 1973.' The Commission gave unqualified assurances to the court that it was able and willing to assume management of any relief ordered by the court ² for this large, nationwide class, and pledged its impressive resources to this end.

After the successful intervention of EEOC and during the entire period of its participation in the litigation, one of its chief trial attorneys was assigned as its attorney of record. The large number of persons affected by the litigation, the extensive and diverse geographical areas involved, the lengthy period of time covered by the lawsuit and the nature of the evidence relevant to the issues, made the case one of considerable difficulty and complexity. The discovery undertaken was expensive and voluminous. It was energetically litigated and required the appointment of a special master. The District Court was justifiably concerned with the management problems posed by this litigation. The trial was expected to take at least three months. Following a motion by the private plaintiffs and the EEOC, it was ultimately set for December 16, 1974, and the trial judge reserved the three month period for the trial.

The Factual Background of the Controversy

The situation which has precipitated this appeal arose within the context of settlement discussions. The discussions had begun in July 1974, and plaintiffs' and defendants' counsel had succeeded in agreeing upon a proposed consent decree by November 17, 1974. ³ The EEOC was represented throughout the negotiations, actively participated in all phases of the discussions, and succeeded in conforming parts of the proposed decree to suit its interest. However, despite the professed satisfaction therewith by legal representatives of the EEOC, including the attorney of record, the settlement itself was in jeopardy because of the lack of formal consent by the EEOC--in effect the office of its General Counsel in Washington, D.C. In consequence, the District Court found itself on November 18, 1974, in a very unhappy position. It was faced with a commitment to undertake this lengthy and complex trial within less than one month, with discovery suspended and incomplete, and with the private plaintiffs and the defendants in accord regarding settlement but with counsel for the EEOC representing themselves to be without authority to commit the agency to a definitive position. On that date, all counsel, including the EEOC lead counsel, met with the district judge. In an effort to have the EEOC commit itself to a position on the settlement, counsel for the plaintiffs and defendants urged the judge to sign an order to show cause, returnable in one week, requiring the General Counsel for the EEOC or someone with authority to bind the EEOC to appear before the court and show cause why it should not execute the Consent Decree. The judge signed such on Order. ⁴ It was clear to those present that this was intended to require the EEOC to have someone appear before the court who had authority to bind the EEOC.

This Order was served on the EEOC General Counsel on November 19. During that week the EEOC lead counsel in this case, who had been present at the signing of the Order, went to Washington, D.C. with one of the attorneys for the plaintiff class to talk with EEOC officials. The General Counsel did not meet with the them. The judge spoke by telephone with the General Counsel on November 22nd and 23rd and obtained an indication of his willingness to appear in court if the local EEOC representative so requested. However, on the return date, November 25, neither the General Counsel nor an agent with authority to bind the EEOC appeared. The court then advised the Commission that it had failed to comply with the court's Order, requested it to communicate with its General Counsel to tell him to appear the next day and took under advisement a motion to hold the EEOC in contempt.

Again, on November 26, neither the General Counsel nor an agent with authority to bind the EEOC appeared. The District Court found that the Commission had failed to comply with its order and that its non-compliance warranted the Commission's dismissal from the lawsuit. Thereupon the District Court entered its order of November 26, 1974, providing for the provisional dismissal which is the basis for this appeal. ⁵

The District Court later filed findings of fact and conclusions of law on December 20, 1974, a part of which are worth quoting because they plainly describe the painful dilemma in which the court and the counsel for the private parties found themselves. ⁶

The EEOC argues that the District Court dismissed it with prejudice for failing to sign a consent decree and that this was error because the court could not force it to sign a consent decree. The EEOC further argues that, if it has been properly dismissed, the court lacks jurisdiction to order it to administer the consent decree.

The appellees admit that the court has no authority to force the EEOC to sign a consent decree, but argue that the EEOC was properly dismissed with prejudice for failure to obey a court order. They further argue that estoppel and the inherent power of the court to regulate litigation and effectuate its decrees are sufficient authority for the court to retain jurisdiction over the EEOC and to require it to manage a settlement fashioned in reliance on its repeated promises of administrative assistance.

The District Court Properly Dismissed the EEOC Wity Prejudice

There is no question that a District Court has the power to dismiss a claim of a plaintiff with prejudice for failure to comply with an order of the court. Fed.R.Civ.P. 41(b); ⁷ Link v. Wabash R.R., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Von Poppenheim v. Portland Boxing & Wrestling Commission, 442 F.2d 1047 (9th Cir.), cert. denied, 404 U.S. 1039, 92 S.Ct. 715, 30 L.Ed.2d 731 (1971). A fortiori, this is the case where the plaintiff concerned is but one of several, has no financial interest in the outcome of the litigation and is simply aligned with other plaintiffs who do. It is equally clear that the district judge's determination that his order was not complied with is entitled to considerable weight on appeal since he is in the best position to assess the circumstances. Von Poppenheim, supra, 442 F.2d at 1051; Industrial Building Materials, Inc. v. Interchemical Corp.,437 F.2d 1336 (9th Cir. 1970). The district judge will be reversed only if he has abused his discretion in dismissing the claim. Link, supra; Industrial Building Materials, supra.

This was an appropriate case for dismissal by the District Court. Both the intervention of the EEOC and the certification of the suit as a class action were permitted following representations by the EEOC that its presence would not delay or prejudice the adjudication of the rights of the original parties but rather would materially aid in the expeditious determination of the issues and in the management of the litigation. The EEOC played an active and significant role in the pretrial activity, including the settlement negotiations. The EEOC representatives appeared to approve of the proposed consent decree arrived at on November 17 but could not bind the EEOC. The court was anxious to have the matter of settlement resolved. The trial date beginning the three month period had already been cleared in his calendar and the trial was less than a month away. Discovery had been suspended by agreement when the settlement negotiations became critical, and would require completion before the trial in the event an accord was not reached. The court was operating under an explicit statutory mandate to handle this Title VII case, already several years old, as expeditiously as possible. ⁸ Yet the EEOC, which was well aware of this pressing situation, gave no indication of a desire or intent to proceed expeditiously in approving or rejecting the settlement. The efforts of the private parties and of the court to secure the assertion of an authoritative position by the Commission proved to be in vain. The negotiations of the parties in Seattle and in Washington, D.C. with...