author: EDELSTEIN, District Judge:

text:
    In the Matter of the Arbitration between Addison M. FISCHER, Petitioner, v. CGA COMPUTER ASSOCIATES, INC., a/k/a CGA Computer, Inc., Respondent.
    No. 85 Civ. 3895 (DNE).
    United States District Court, S.D. New York.
    July 3, 1985.

      Schupak, Rosenfeld, Fischbein, Bernstein & Tannenhauser, Frederick S. Gold and Nancy R. Sills, New York City, of counsel, for petitioner.
    Baer, Marks & Upham, Barry J. Mandel and Kristine Reddington, New York City, of counsel, for respondent.
   OPINION AND ORDER

EDELSTEIN, District Judge:

Petitioner, Addison M. Fischer (“Fischer”), brought this action on May 23, 1985 for confirmation of an arbitration award rendered May 22, 1985. This court has jurisdiction pursuant to 9 U.S.C. § 9 and 28 U.S.C. § 1332. For the reasons set forth below, the arbitration award is confirmed as modified herein, pursuant to 9 U.S.C. §§ 9 & 11.

FACTUAL BACKGROUND

Fischer is a computer programmer and was a principal of Allen Services Corporation (“ASC”), a computer software company. On or about January 30, 1981, ASC sold its assets to respondent, CGA Computer, Inc. (“CGA”), pursuant to an “Acquisition Agreement,” and the parties contemporaneously executed an “Employment Agreement,” which was later amended by a First Supplement and Amendment to Agreement. Among the assets sold by ASC to CGA pursuant to the Acquisition Agreement were several computer software programs created and developed by Fischer. Fischer’s duties under the employment agreements were to provide training and technical support to CGA in connection with its efforts to market Fischer-created software products and, under certain circumstances, to help develop new software products for CGA. Fischer’s compensation was to be in several forms, including, inter alia, royalties based on CGA’s sales of Fischer-created software products. CGA was required to furnish Fischer at specified intervals with certified audits setting forth and confirming the proper computation of Fischer’s royalties.

After a dispute arose between the parties, Fischer, invoking the termination clause in the Amended Employment Agreement, notified CGA that he was terminating all covenants, obligations and duties contained in the parties’ agreements. Fischer claimed that CGA had materially breached the employment agreements by, inter alia, failing to pay specified royalties, failing to provide certified audits and wrongfully locking Fischer out of CGA’s computer facility.

The employment agreements contain an arbitration clause which provides:

Any controversy or claim arising under or relating to this Agreement or the breach hereof shall be settled by arbitration in New York, New York in accordance with the rules then obtaining of the American Arbitration Association. Judgment upon any award rendered may be entered in any court having jurisdiction thereof.

CGA served an original and amended arbitration demand in which it sought declaratory and monetary relief. CGA sought a declaration that: (1) Fischer remains obligated to perform his duties under the employment agreements; (2) Fischer must deliver to CGA all programs, source codes, object codes and related material created by him during his period of full-time employment with CGA; and (3) CGA is entitled to exercise a right of first refusal with respect to all software programs and modifications developed or acquired by Fischer at any time until and including November 27, 1991. Exhibit E to Petition for Confirmation. CGA also demanded monetary damages resulting from Fischer’s breach of the Acquisition Agreement and the employment agreements. Id.

Fischer counterclaimed for the following declaratory relief: (1) that CGA had breached the employment agreements; (2) that Fischer is relieved from all duties and covenants under the agreements; and (3) that CGA must grant Fischer access to its computer resources and facilities. Fischer sought monetary damages resulting from CGA’s breach of the employment agreements and from its conversion of Fischer’s personal property. Fischer also sought an accounting of all monies owed him pursuant to the employment agreements.

On May 22, 1985, the arbitration .panel rendered a decision entitled “AWARD OF ARBITRATORS.” The AWARD OF ARBITRATORS provides in pertinent part:

WE, THE UNDERSIGNED ARBITRATORS ... FIND as follows:

A. With respect to the Right of First Refusal, Section (13) of the Acquisition Agreement ... has remained and continues to remain in full force and effect for a period of seven (7) years from the closing date as that date is defined in the Acquisition Agreement.
B. ADDISION M. FISCHER ... shall be relieved of his obligations with respect to all Covenants not to compete as contained in paragraph 5 of the Employment Agreement dated February 27, 1981 ...
C. The Minidisk is the property of [Fischer], and directs that [CGA] shall return the minidisk to [Fischer].
D. [Fischer] and [CGA] shall have no further contractual duties to each other under [the employment agreements].

We, therefore, AWARD as follows:

1. [CGA] shall pay to [Fischer] the sum of ONE HUNDRED TWENTY THREE THOUSAND SEVEN HUNDRED SEVENTY DOLLARS AND FIFTY-NINE CENTS ($123,770.59).
2. Each party shall pay their own costs for the audits.
3. The compensation of the arbitrators totaling TWENTY TWO THOUSAND TWO HUNDRED DOLLARS ($22,200.00) shall be borne equally by the parties. Therefore, [CGA] shall pay to [Fischer] the sum of THREE HUNDRED DOLLARS ($300.00) for that portion of its share of said compensation previously advanced by [Fischer] to the Association.
4. The administrative fees and expenses of the American Arbitration Association totaling TWELVE THOUSAND ONE HUNDRED FORTY TWO DOLLARS ($12,142.00) shall be borne as incurred. Therefore, [CGA] shall pay to the American Arbitration Association the sum of ONE HUNDRED TWENTY THREE DOLLARS and FIFTY CENTS ($123.50) for that portion of its fees and expenses still due the Association.
5. This award is in full settlement of all claims and counter-claims submitted to this arbitration.

On May 23, 1985, the day after the arbitration award was rendered, petitioner filed the petition for confirmation.

DISCUSSION

The petition satisfies all the requirements for confirmation by this court provided in 9 U.S.C. § 9. The parties to the arbitration agreement expressly consented to the entry of judgment on the arbitration award by a court of competent jurisdiction. The Southern District of New York is the proper district for the entry of judgment because the award was granted in New York, New York. Respondent does not dispute any of the factual allegations in the petition. Respondent opposes the petition, however, on the ground that the award is ambiguous and requests the court to remand the action for resubmission to the arbitration panel for clarification of the award.

Respondent contends that the award is ambiguous in that it cannot be determined whether the first section, entitled “FINDINGS” constitutes findings of fact or declarations of the parties’ rights and duties. Respondent is therefore “concerned about its ability to enforce its rights [under the first section of the arbitration award].” Respondent’s Memorandum of law at 3. By reply memorandum submitted June 20, 1985 petitioner requests the court to modify the arbitrator’s award by ruling that the word “FIND” as used in the arbitration award is synonomous with “DECLARE”. The grant of petitioner’s latter request would cure any reasonable “concern” respondent has about enforcing the rights declared by the arbitrator.

Although “[construing ambiguous provisions of an arbitration award is the proper province of the arbitrator, not the courts,” Bell Aerospace Co. Div. of Textron v. Local 516, 500 F.2d 921, 924 (2d Cir.1974), the award may be confirmed and need not be remanded to the arbitrator, where the true intent of the arbitrator is apparent, Local 719, American Bakery and Confectionary Workers of America v. National Biscuit Co., 378 F.2d 918, 926 (3d Cir.1967); United Steelworkers of America v. ICI Americas Inc., 545 F.Supp. 152, 154 (D.Del.1982); see also Randall v. Lodge No. 1076, International Association of Machinists and Aerospace Workers, 648 F.2d 462, 468 (7th Cir.1981) (arbitrator’s decision need not be free from ambiguity to be upheld). Remand should be granted sparingly because of the likelihood that “the arbitrator [will] believe that a ‘remand’ is equivalent to ‘retrial’ with an expectation of an opposite result the second time around”. Randall v. Lodge No. 1076, International Association of Machinists and Aerospace Workers, supra, 648 F.2d at 468. In addition, because remand delays execution of final judgment on the arbitration award, it incurs the danger of “frustrating] the basic purposes of arbitration: to resolve disputes speedily and to avoid the expense and delay of expensive court proceedings.” Federal Commerce and Navigation Co. v. Kanematsu-Gosho, Ltd., 457 F.2d 387, 389 (2d Cir.1972); accord Diapulse Corp. of America v. Carba, LTD., 626 F.2d 1108, 1110 (2d Cir.1980); cf. Dean Witter Reynolds, Inc. v. Byrd, — U.S.-, 105 S.Ct. 1238, 1242, 84 L.Ed.2d 158 (1985) (although “preeminent” goal of the Arbitration Act is the enforcement of private arbitration agreements, the efficient and speedy resolution of disputes is also one of the goals of the Act).

Remand should not be granted where the court can resolve any alleged ambiguities in the award by modification, pursuant to 9 U.S.C. § 11. 9 U.S.C. § 11(c) authorizes a district court to modify or correct an arbitration award “[w]here the award is imperfect in matter of form not affecting the merits of the controversy.” Modifying the award pursuant to petitioner’s request by, in effect, substituting “DECLARES” for “FINDS” in the first sentence of the arbitration award would not affect the merits of the controversy, but merely involves a matter of semantics. The arbitrators have unambiguously determined the rights and liabilities of the parties. Paragraphs “A” through “D” of the arbitrator’s “FINDINGS” section clearly constitute statements of the parties’ rights and duties and are in the nature of an award. Moreover, the “FINDINGS” section addresses the declaratory relief sought by claimant and counterclaimant to the arbitration. The only plausible reading of the award is that the “FINDINGS” section states the declaratory relief awarded and the “AWARD” section states the monetary relief awarded. Under these circumstances, modification and confirmation of the award rather than remand would not amount to pre-emption of the factfinding function assigned to the arbitrator and is appropriate under 9 U.S.C. §§ 9 and 11(c).

By letter dated June 21, 1985, respondent states that it is “unwilling to stipulate ... that the arbitrators intended to relieve petitioner of his obligations under the non-competition clause of his employment agreement,” and that it is “unsure ... exactly what the arbitrators did intend with respect to the vigorously contested non-competition issue.” This issue, however, was clearly and definitively addressed by the arbitrators in paragraph B of the arbitration award, which states: “[Fischer] ... shall be relieved of his obligations with respect to all Covenants not to compete as contained in paragraph 5 of the [employment agreements].” The arbitrators’ intent could not have been stated more clearly. Any “uncertainty” respondent has concerning Fischer’s obligations with respect to the covenants not to compete is unwarranted. Further, any objections respondent has to the substance of the arbitrators’ “FINDINGS” is rejected, because respondent has not shown, or even alleged, that any portion of the award is in “manifest diregard of applicable law.” UCO Terminals, Inc. Apex Oil Co., 583 F.Supp. 1213, 1217 (S.D.N.Y.), aff'd, 751 F.2d 371 (2d Cir.1984). The court will not provide respondent with the opportunity to reargue its case by remanding the action to the arbitrator.

Petitioner also seeks an award of costs. Although costs, including attorneys’ fees, may be awarded in arbitration enforcement cases if one of the parties unjustifiably refuses to abide by the award, United States Steelworkers of America v. Interpace Corp., 447 F.Supp. 387, 393 (W.D.Pa.1978), this is not an appropriate case for an award of costs. Petitioner commenced this action the day after the arbitration award was rendered. Thus, respondent did not “refuse to abide by the award” before the filing of the petition. In addition, respondent did not have the opportunity to move before the arbitration panel for clarification of the award. Moreover, respondent did not simply default on the petition or cross-move to vacate the award, but suggested the alternative of remand. On the record presented, the court cannot find that respondent has acted “vexatiously” or in “bad faith.” See Mobile Oil Corp. v. Independent Oil Workers Union, 679 F.2d 299, 305 (3d Cir.1982); Chauffeurs, Teamsters, Warehousemen and Helpers, Local Union 135 v. Jefferson Trucking Co., Inc., 473 F.Supp. 1255, 1259-60 (S.D.Ind.1979), aff'd, 628 F.2d 1023 (7th Cir.1980), cert. denied, 449 U.S. 1125, 101 S.Ct. 942, 67 L.Ed.2d 111 (1981).

CONCLUSION

The arbitration award of May 22, 1985 is modified, pursuant to 9 U.S.C. § 11(c), so that the word “FIND,” which introduces the award’s first section is deemed synonomous with “DECLARE,” and the first section is to be deemed part of the arbitration award. The arbitration award as modified by this order is confirmed, pursuant to 9 U.S.C. § 9. The award as modified shall constitute a judgment of this court, and the clerk shall enter judgment accordingly. Petitioner’s application for costs is denied.

SO ORDERED.

ADDENDUM TO OPINION AND ORDER

This is an addendum to the court’s opinion and order dated July 3, 1985, which granted the petition for confirmation of an arbitration award. In that opinion, the court found that it had jurisdiction of the petition, pursuant to 9 U.S.C. § 9 and 28 U.S.C. § 1332. The court, however, did not explicitly find that the contract in which the arbitration clause was included is one “evidencing a transaction involving commerce” within the meaning of 9 U.S.C. §§ 1 and 2. Smiga v. Dean Witter Reynolds, Inc., 766 F.2d 698, 703-704 (2d Cir.1985). The court has the power to amend the July 3, 1985 opinion, sua sponte, under its inherent power to correct the record. Allied Materials Corp. v. Superior Products Co., 620 F.2d 224, 226 (10th Cir.1980). Because judgment has not yet been entered by the judgment clerk as directed in the July 3, 1985 opinion and order, the proscriptions of Rules 52 and 60(a) of the Federal Rules of Civil Procedure do not apply.

The “commerce” requirement is satisfied if plaintiff’s employment contract “contemplates using interstate communication facilities and engaging in interstate activities.” Smiga v. Dean Witter Reynolds, Inc., supra at 703-704; see Dickstein v. duPont, 320 F.Supp. 150, 152 (D.Mass.1970), aff'd., 443 F.2d 783, 785 (1st Cir.1971). Paragraph 10 of the petition for confirmation in this case states that the contracts evidence transactions involving commerce, because “the businesses of ASC and of CGA have been based on the distribution of computer software products throughout the United States, and the services Fischer was to render, and did render, under the Employment Agreement and Amended Employment Agreement required extensive interstate travel by Fischer and were designed to enhance, and did enhance, CGA’s customers and sales on a national basis.” In addition, paragraph 2 of the petition states that CGA “maintained 16 offices in 13 states throughout the country.” CGA has not objected to any factual assertion in the petition or contended that this court lacks subject matter jurisdiction over the petition. Moreover, the court finds, based on the exhibits and affidavits submitted by petitioner, that the contracts contemplate the use of interstate facilities and interstate activities. Accordingly, the court finds that the Acquisition Agreement and the employment agreements between CGA and Fischer are contracts evidencing a transaction involving commerce, within the meaning of 9 U.S.C. §§ 1 and 2. The July 3, 1985 opinion is hereby amended to reflect this finding.

SO ORDERED.

      . The employment agreement along with its supplement and amendments are hereinafter referred to collectively as "the employment agreements.”

      . 9 U.S.C. § 9 provides in pertinent part:
      If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified or corrected as prescribed in sections 10 and 11 of this title. If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made____

      . Proper usage of the word "find" is not confined to a dsignation of “findings of fact." “Find” may also be used to designate the determination of a controversy in favor of one of the parties. Black’s Law Dictionary 568 (5th ed. 1979).

      . The petition seeks an award of costs, but this request is not addressed or supported in petitioner's memorandum of law.


source: Caselaw Access Project

author: DAVID S. NELSON, District Judge.

license: Public Domain

text:
    Julia L. VIGEANT and Robert W. Vigeant, Plaintiffs, v. ZIMMER, INC., Defendant.
    Civ. A. No. 82-3455-N.
    United States District Court, D. Massachusetts.
    July 3, 1985.

      John N. Lewis, Ravech, Aronson & Shuman, Boston, Mass., for plaintiffs.
    Robert S. Kutner, Casner, Edwards & Roseman, Boston, Mass., Robert L. Rasor, Thomas R. Lemon, Steven Hearn, Rasor, Harris, Lemon & Reed, Warsaw, Ind., for defendant.
   MEMORANDUM OPINION

DAVID S. NELSON, District Judge.

The plaintiff, Julia Vigeant, is suing Zimmer, Inc. for alleged negligence, breach of warranty, and strict liability in tort in the design, manufacture, and sale of the defendant’s product, the Offset Hinge Total Knee prosthesis. The defendant moved for summary judgment on the grounds that the plaintiff’s diversity suit was barred by the applicable Massachusetts three-year statute of limitations, Mass.Gen.Laws Ann. ch. 260, § 2A and ch. 106, § 2-318 (West 1985). On the basis of that part of the record which is undisputed, the Court denied the defendant’s motion on April 18, 1985 and now offers this memorandum in support of its decision.

The plaintiff, a longtime sufferer of rheumatoid arthritis, had her left knee replaced with the defendant’s prosthetic device in June 1977. Thereafter she had no problems with her left knee until she experienced “this awful pain again in that left knee” toward the end of 1978. She was hospitalized for that pain in December 1978 during which time she recalls that the doctor informed her “the pin had loosened” and that he performed surgery. The doctor’s notes from her hospitalization in December 1978 indicate that the knee prosthesis had broken, but although the doctor believes he advised the plaintiff of this fact, she maintains that she was not informed that the knee prosthesis had failed until over a year later when she was again hospitalized and underwent further surgery on February 19, 1980. The plaintiff filed this action on November 15, 1982.

As explained in Fidler v. Eastman Kodak, “the cause of action does not accrue until the plaintiff learns or reasonably should have learned that he has been injured by the defendant’s conduct” both for negligence and breach of warranty claims in the products liability context. 714 F.2d 192, 196-97 (1st Cir.1983). Cf. Olsen v. Bell Telephone Laboratories, 388 Mass. 171, 174-75 (1983) (establishing this rule for negligence claim in medical malpractice action). This notice necessary to trigger the statute of limitations, however, does not include notice that the defendant has breached a legal duty to the plaintiff. Fidler, 714 F.2d at 199. Therefore, in order to prevail, the defendant must show either that Mrs. Vigeant possessed the facts sufficient to connect her pain with the defendant’s conduct or that her doctor’s knowledge that the prosthesis had broken can be imputed to her.

Viewing the record in a light most favorable to the opposing party and indulging all inferences in that party’s favor for purposes of a summary judgment motion under Fed.R.Civ.P. 56, the Court finds that the defendant has failed to establish the requisite notice of the cause of her injury under either of these grounds. First, the doctor’s statement that “the pin had loosened” coupled with the plaintiff’s long history of arthritic pain in her knee did not apprise the plaintiff that her pain might be linked with the manufacturer’s conduct, but may even have misled her into attributing the loose pin to natural slippage. Such a situation is far from the knowledge of both the cause and the mechanics of causation the plaintiff admitted to knowing in the Fidler ease. See 714 F.2d at 198-99.

Second, the doctor’s knowledge even as evidenced in medical records did not constitute notice to the plaintiff where his statement to her about the pin having loosened in addition to his failure to schedule any subsequent surgery suggested that any problems had been remedied. And in fact, the plaintiff did not experience further pain until over a year later on December 26, 1979 for which she was eventually hospitalized in February 1980. Under these circumstances, the plaintiff should not reasonably be expected to have learned that the prosthetic knee might be defective until after November 15, 1979, well within the three-year limitations period.

The defendant further asks for summary judgment on the strict liability claim on the grounds that it fails to state a claim distinct from that based on breach of warranty. To the extent that there is no separate doctrine of strict products liability in Massachusetts law, see Swartz v. General Motors, 375 Mass. 628, 629-31, 378 N.E.2d 61 (1978), the plaintiff’s strict liability claim is dismissed. The Court notes, however, that Massachusetts warranty law is “a remedy intended to be fully as comprehensive as the strict liability theory of recovery that has been adopted by a great many other jurisdictions.” Back v. Wickes Corp., 375 Mass. 633, 639, 378 N.E.2d 964 (1978). Accord, Swartz v. General Motors, 375 Mass, at 630, 378 N.E.2d 61.

For the foregoing reasons, the Court denied the defendant’s motion for summary judgment, except insofar as the strict liability claim is dismissed.

      . The defendant’s contention that Robert Vi- . geant's claim of loss of consortium is time-barred similarly derives from these arguments. Therefore, the discussion below also provides the basis for denial of summary judgment in regard to his claim.


author: MYRON H. THOMPSON, District Judge.

text:
    Margaret T. ALLEN, etc., et al., Plaintiffs, Board of Trustees for Alabama State University; and Eria P. Smith, Plaintiff-Intervenors, v. The ALABAMA STATE BOARD OF EDUCATION, et al., Defendants.
    Civ. A. No. 81-697-N.
    United States District Court, M.D. Alabama, N.D.
    July 3, 1985.

      Donald V. Watkins, Watkins, Carter & Knight, Montgomery, Ala., James U. Blacksher, Gregory B. Stein, Blacksher, Menefee & Stein, Mobile, Ala., Solomon S. Seay, Jr., Terry G. Davis, Seay & Davis, Montgomery, Ala., for plaintiffs.
    Charles Coody, Gen. Counsel, State Bd. of Educ., T.W. Thagard, Jr., David Boyd, Balch & Bingham, Montgomery, Ala., for Alabama State Bd. of Educ., Tyson, Creel, Cherry, Higginbotham, Poole, Martin, Allen, Roberts and Teague.
    Algert Agricola, Patrick Robinson, Rosa Davis, Asst. Attys. Gen., Montgomery, Ala., for Bd. of Educ. and Teague.
   MEMORANDUM OPINION

MYRON H. THOMPSON, District Judge.

The plaintiffs and plaintiff-intervenors, four black teachers and a predominantly black state university, have brought this class-action lawsuit charging, among other things, that the State of Alabama’s teacher certification tests impermissibly discriminate against black persons seeking state certification. The defendants are the Board of Education for the State of Alabama, its members, and the State Superintendent of Education.

This lawsuit is now before the court on the plaintiffs’ and plaintiff-intervenors’ motions to enforce conditionally a settlement agreement drafted and agreed to, but not signed, by counsel for all parties. For reasons that follow, the court concludes that the motions should be granted.

I.

On December 15, 1981, Margaret T. Allen, Yolanda F. Lamar and Beverly K. Jones, three black teachers, filed this lawsuit challenging the Alabama State Board of Education’s requirement that applicants for state teacher certification pass certain standardized tests administered under the Alabama Initial Teacher Certification Testing Program. On October 14, 1983, the court certified a class, represented by Allen, Lamar and Jones, consisting of all black persons who have been or will be denied any level teacher certification because they failed to pass the tests administered under the program. On June 13, 1984, the court allowed the Board of Trustees of Alabama State University, a predominantly black university, and Eria P. Smith, a black teacher, to intervene.

Plaintiffs Allen, Lamar, and Jones and plaintiff-intervenors Smith and the Board of Trustees of Alabama State University have presented several claims. These claims are, among others, that the teacher certification tests penalize black students who had to acquire all or part of their education in racially segregated public schools and state institutions of higher learning; that the tests have an “adverse racial impact” on black students and predominantly black colleges, have no relationship to job performance, and are culturally biased; that the tests evaluate students on matters the students were not taught in the classroom; and that the tests were implemented without adequate prior notice to students and colleges. The plaintiffs and plaintiff-intervenors rest their claims on the fourteenth amendment to the U.S. Constitution and on various civil rights statutes, including 20 U.S.C.A. § 1703 and 42 U.S.C.A. §§ 1981, 1983, 1988, 2000d to 2000d-6, and 2000e to 2000e-17. They seek, among other things, declaratory and injunctive relief, backpay and frontpay, and attorney fees and costs.

II.

Beginning in June 1984, attorneys for the parties met several times to discuss settlement of this lawsuit. Also present at some of these meetings were some of the parties’ experts and some of the defendants themselves, including the state superintendent and a member of the state school board. In December 1984, the lawyers for the parties concluded that they were unable to reach a settlement and so notified the court. The court then set a trial date of April 22, 1985.

In early 1985, settlement discussions resumed. During these renewed negotiations, Donald Watkins, the attorney for the plaintiffs, Gregory Stein, the attorney for the plaintiff-intervenors, and Charles Coody, the attorney for the defendants, exchanged eight to ten proposed settlement agreements in the form of consent decrees. Finally, on April 3, after working late into the night the previous day, Coody and Watkins drafted a consent decree that they believed would be acceptable to all parties.

The state board had previously passed a resolution authorizing the state superintendent to settle all litigation involving the board, with one exception not applicable to the circumstances here. Although Superintendent Teague believed the final draft reached by Coody and Watkins was acceptable, he considered the settlement too important to accept without the approval of the board. Teague and Coody therefore called a meeting of the board to discuss the proposed consent decree and to secure approval from the board.

Five of the eight board members met on April 4. A sixth board member attended briefly but left before the meeting ended. At this meeting, Teague and Coody informed the board members, in substance, that counsel for the parties had drafted a consent decree and that they, Teague and Coody, wanted the board’s approval of the decree. Teague and Coody handed out copies of the decree to the board members, explained its major provisions, and answered questions. During the meeting, Teague and some board members expressed displeasure with various specific provisions in the decree; however, none of the board members voiced objections to settlement according to the terms in the decree. At the end of the meeting, Harold Martin, the presiding officer, told Teague to “go ahead” with the settlement. There was no objection from the other members of the board. The evidence reflects that Teague, Coody and the five board members present at the meeting left the meeting with the understanding that they had approved the settlement as embodied in the decree. They further understood that Coody would immediately inform plaintiffs’ and plaintiffintervenors’ counsel and the court that the decree was acceptable to the board and the superintendent and that the lawsuit was settled. Later the same day, Coody so informed Watkins and asked Watkins to inform Stein. Watkins did.

On April 8, Coody and Watkins met with the court in-chambers. They presented the court with a copy of the decree they had drafted, and they informed the court that the case had been settled by all parties according to the terms in the decree. Stein could not be present for the meeting and had authorized Watkins to speak for the plaintiff-intervenors. The court informed Coody and Watkins that the settlement was acceptable, subject to the court’s approving the decree for the plaintiff class pursuant to Rule 23(e) of the Federal Rules of Civil Procedure. The court also informed Coody and Watkins that a Rule 23(e) hearing would be set for June 28, 1985. The court continued the April 22 trial date.

A few days later, the Attorney General for the State of Alabama publicly attacked the settlement. Then, on April 11, 1985, in response to public criticism of the settlement, the board voted five to three to inform the court that the lawsuit was not settled.

The plaintiffs and plaintiff-intervenors then filed the present motions seeking to enforce the settlement the attorneys for the parties had reached, subject to the court’s determining later whether the settlement should be approved for the plaintiff class. The parties were allowed to engage in discovery on the motions; and on April 19 and May 6, 1985, the court held evidentiary hearings to resolve disputed issues of fact.

III.

Settlement of claims brought before courts is a favored means of resolving disputes. Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir.1984). Indeed, a settlement agreement is “as binding, final, and as conclusive of rights as a judgment” when the settlement is not illegal or against public policy and is fairly arrived at and properly entered into, that is knowingly and voluntarily and not by fraud or coercion. Thomas v. State of Louisiana, 534 F.2d 613, 615 (5th Cir.1976) (footnote omitted); see also United States v. City of Alexandria, 614 F.2d 1358, 1362 (5th Cir.1980); Fulgence v. J. Ray McDermott & Co., 662 F.2d 1207, 1209-10 (5th Cir.1981) (per curiam). Here, the defendants have presented an array of challenges to the enforceability of the settlement reached by counsel for all parties. None of the challenges has merit.

A.

The defendants contend that the court lacks jurisdiction to enforce the settlement. This contention is meritless. Without question, a federal district court has jurisdiction to enforce a settlement agreement reached in a case pending before it, Cia Anon Venezolana de Navegacion v. Harris, 374 F.2d 33, 35 (5th Cir.1967); see also Mid-South Towing Co. v. Har-Win, Inc., 733 F.2d 386, 389 (5th Cir.1984), including a case involving government officials. See, e.g., Thomas, supra; see also United States v. McInnes, 556 F.2d 436 (9th Cir.1977). Cf. Village of Kaktovik v. Watt, 689 F.2d 222, 230 (D.C.Cir.1982) (“when the Government attempted to withdraw from the agreement, plaintiffs could have enforced it by requesting the district court to enter the appropriate order”) (footnote omitted).

The defendants’ reliance on Fairfax Countywide Citizens v. Fairfax County, 571 F.2d 1299 (4th Cir.), cert. denied, 439 U.S. 1047, 99 S.Ct. 722, 58 L.Ed.2d 706 (1978), is misplaced. There, the plaintiffs dismissed their lawsuit without having the federal district court incorporate the terms of the parties’ settlement into a court order. Three years later, the plaintiffs requested that the district court re-open the case pursuant to Fed.R.Civ.P. 60(b)(6), vacate the dismissal, and enforce the settlement agreement. The district court did so. The Fourth Circuit Court of Appeals reversed, holding that the lower court lacked jurisdiction to enforce the settlement. The appellate court reasoned that, where a case is not ongoing, the district court is powerless to enforce a settlement in the case “unless the agreement had been approved and incorporated into an order of the court, or, at the time the court is requested to enforce the agreement, there exists some independent ground upon which to base federal jurisdiction,” 571 F.2d at 1303 (footnote omitted); the district court’s authority extends only to restoring the case to the trial docket. 571 F.2d at 1305-06.

The circumstances in Fairfax Countywide Citizens are not present here. The Fourth Circuit recognized that its analysis and holding were not applicable to those cases where enforcement of a settlement was sought in ongoing litigation. The appellate court specifically distinguished from its holding those circumstances where “parties to litigation pending in district court had entered into an agreement prior to final judgment whereby defendant consented to a judgment in favor of plaintiff; but prior to entry of judgment, defendant had repudiated.” 571 F.2d at 1304 n. 12 (emphasis omitted). Indeed, the Fourth Circuit later acknowledged in Gamewell Manufacturing, Inc. v. HVAC Supply, Inc., 715 F.2d 112, 116 n. 10 (4th Cir.1983), that “ ‘[derivative’ federal jurisdiction over settlement issues raised in ongoing federal litigation ... was expressly recognized by this court in the Fairfax County case____”

Here, the settlement is sought in ongoing litigation. The court therefore has jurisdiction to enforce the settlement agreement.

B.

The defendants contend that the settlement agreement is unenforceable because Superintendent Teague lacked authority to agree to the settlement on behalf of the state school board. This contention is meritless because the facts in this case are not as claimed by the defendants.

Relying on Board of Education of Marshall County v. Baugh, 240 Ala. 391, 199 So. 822 (1941), the defendants argue that the state school board resolution authorizing the state superintendent to settle lawsuits on behalf of the board is illegal to the extent it authorized Superintendent Teague to settle this lawsuit. In Board of Education of Marshall County the Alabama Supreme Court held that a county board of education could not delegate to the county school superintendent the authority to discharge teachers because state statutes place the responsibility for discharging teachers solely on the shoulders of the county boards of education. The Court reasoned that the decision to discharge teachers “involves a delicate exercise of a wise discretion” vested by law in the county boards alone. 199 So. at 825. Along this same line, the defendants here argue that the state school board could not delegate to the state superintendent the authority to settle lawsuits involving teacher certification because by law, 1975 Ala.Code §§ 16-3-16, 16-23-2, exclusive control over teacher certifications lies with the state school board. They argue that the decision to settle this lawsuit involves discretion that only the state school board is authorized to exercise. They therefore contend that only the state school board could approve and authorize the settlement in this lawsuit.

This court need not reach this issue of state law, however. Superintendent Teague did not rely solely on the board resolution authorizing him to settle lawsuits. Instead, he concluded that because of the importance of this lawsuit the state school board should itself also approve and authothe settlement. The board did just this.

The state school board therefore approved and authorized the settlement just as the defendants contend that it was required by law to do for the settlement to be valid and binding.

C.

The defendants contend that the settlement agreement is itself illegal under Alabama law. Again relying on Board of Education of Marshall County and 1975 Ala.Code §§ 16-3-16, 16-23-2, the defendants argue that the agreement impermissibly delegates to others the authority to regulate teacher certification. This contention is meritless.

The agreement provides for the establishment of a three-person, independent panel of experts “whose task will be that of monitoring and overseeing the test development process.” 115 of the proposed Consent Decree. The panel is

responsible to the Alabama State Board of Education for reporting that all phases of the Alabama Initial Teacher Certification Testing program, if continued by the defendants, are in conformity with the testing principles and standards enunciated in this decree. The panel shall make reports and give appropriate advice and recommendations to the defendants, as often as desired, and shall make annual status reports to the Court and parties regarding the defendants’ compliance with the technical standards contained in this decree.

Id. This expert panel is also responsible for determining whether any “subject-matter” examination drafted by the defendants “has been administered to a sufficient number of examinees to judge the racial effect of the items” in the examination. 11 2(d). The settlement agreement also provides for the appointment of “panels of black Alabama educators” to review all examinations for “racial bias” and “to make recommendations to the test monitoring panel concerning their finding of bias, if any.” 11 6. The authority of these panels—the expert panel and the black educator panels—is thus limited, extending primarily to making reports and recommendations. The settlement does not delegate to them the authority to regulate teacher certification.

D.

The defendants contend that their attorney, Charles Coody, lacked the authority necessary to settle this lawsuit, and that, if he had such authority, the settlement is unenforceable because it was not signed by him. The defendants argue that Alabama law requires that an attorney have written authority to settle a case in order to bind the attorney’s client. They further argue that Alabama law requires that before a settlement is enforceable it must be reduced to writing signed by the lawyers or entered into the minutes of the court.

First of all, the general requirements necessary to the enforcement of settlements are determined by federal rather than state law when, as here, the substantive rights and liabilities of the parties derive from federal law. Mid-South Towing Co. v. Har-Win, Inc., 733 F.2d 386, 389 (5th Cir.1984); Fulgence v. J. Ray McDermott & Co., 662 F.2d 1207, 1209 (5th Cir.1981) (per curiam). Federal law does require that an attorney have “express authority” to settle a lawsuit; it does not require that that authority be in writing. See Mid-South Towing Co., supra. See also Cia Anon Venezolana de Navegación v. Harris, 374 F.2d 33, 35 n. 2 (5th Cir.1967). Here, the evidence is clear that Coody had express authority to engage in the settlement negotiations and settle this lawsuit; indeed, the state school board itself approved and authorized the settlement reached by Coody. The defendants’ contention that Coody lacked authority to act for them is completely meritless.

Also, “[fjederal law does not require ... that the settlement be reduced to writing” and signed by the parties. Fulgence, 662 F.2d at 1209 (involving a Title YII claim). An oral agreement is enforceable against a party where that party “knowingly and voluntarily agreed to the terms of the settlement or authorized his attorney to settle the dispute.” Id. Here, the state school board knowingly and voluntarily agreed to the terms of the settlement.

E.

The defendants contend that the settlement agreement is not binding because the court has yet to approve the agreement for the plaintiff class. This contention is also without merit.

“Particularly in class action suits, there is an overriding public interest in favor of settlement.” Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir.1977) (citations omitted). Nevertheless, a class action may not be settled without the approval of the court, Fed.R.Civ.P. 23(e), which approval requires that the court find that the settlement is fair, adequate and reasonable. Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir.1984). In addition, prior to any approval, notice of the settlement must be given to all class members in a manner determined by the court. Rule 23(e).

The process that the court and the named parties must follow to meet these Rule 23(e) requirements is often both expensive and time-consuming. Here, it will require at least one preliminary hearing, appropriate notice to the members of the plaintiff class, receipt of any objections by class members, filing of briefs by proponents and objectors, and a hearing on the settlement during which the proponents and objectors must be given full reasonable opportunity to present their views and evidence. See, e.g., Bennett, 737 F.2d at 986-87; Johnson v. Montgomery County Sheriffs Department, 604 F.Supp. 1346 (M.D.Ala.1985); Lurns v. Russell Corporation, 604 F.Supp. 1335 (M.D.Ala.1984). Moreover, there is the added expense to the court and the parties of having to delay trial.

It is therefore essential that, before embarking on such procedure, the court and the parties have some assurance that the settlement is binding on the named parties. To allow the named parties to repudiate a settlement at any time, as long as the court has not approved the settlement for the plaintiff class, would permit substantial waste and abuse of the court’s and the parties’ time and resources; it would be administratively inefficient and unfair to both the court and the parties.

This court therefore holds that a settlement agreement in a class action lawsuit is just as binding on the named parties as a settlement is on the parties in any other lawsuit, subject of course to the court’s final approval of the agreement for the plaintiff class.

F.

Finally, the defendants have presented several other, miscellaneous challenges to the settlement agreement. None of these challenges has merit either.

The defendants contend that the settlement does not meet the requirements of Rule 23(e); they argue that it is not fair, reasonable and adequate for the plaintiff class. This contention is premature. At a hearing to be held later, the court will consider whether the settlement meets the requirements of Rule 23(e).

The defendants contend that the named plaintiffs and plaintiff-intervenors have not authorized their attorneys to settle this lawsuit. “[A]n attorney of record is presumed to have authority to compromise and settle litigation of his. client.” Mid-South Towing Co., 733 F.2d at 390, quoting Thomas v. Colorado Trust Deed Funds, Inc., 366 F.2d 136, 139 (10th Cir.1966) (emphasis deleted). This presumption has not been overcome here. After substantial discovery, the defendants have failed to produce any evidence from the plaintiffs and plaintiff-intervenors themselves repudiating or in any way contradicting the actions of their counsel; and the defendants are not otherwise in a position to speak for the plaintiffs and plaintiff-intervenors.

The defendants have suggested that the settlement agreement is unenforceable because one or two “formulas” mentioned in the agreement have not been precisely determined and drafted by the parties. The court understands that at the time the parties’ attorneys settled this lawsuit the formulas were merely administrative housekeeping matters that could be easily determined and drafted later by any one of the parties’ experts. The parties and their lawyers did not consider the formulas an impediment to settlement; this court will not consider them an impediment either. In fact, the plaintiffs and plaintiffintervenors have indicated to the court that they are willing to allow the defendants and their experts to determine and draft the formulas.

The defendants have also suggested that the settlement’is precluded because the court stated at the April 8 meeting with Watkins and Coody that they should consider modifying the agreement to have the defendants, rather than clerk of the court, responsible for disbursing the “liquidated damages” to the members of the plaintiff class. The court’s statement was nothing more than a mere suggestion and it does not render the settlement unenforceable.

Finally, the defendants have suggested that this court has broad discretion to relieve the state school board from liability under the settlement, should the court determine that the board failed to act wisely and in the best interest of all citizens of the State of Alabama when it approved and authorized the settlement agreement. This court does not sit as a super-board broadly empowered to review and correct the decisions of the state board. This court’s role at this time is limited to determining whether the settlement agreement meets two standards: first, whether the settlement was fairly and properly entered into and is not illegal or against public policy; and, second, whether the settlement is fair, adequate and reasonable for the members of the plaintiff class. The evidence now before the court reflects that the settlement meets the first standard; and whether the settlement meets the second standard will be determined later. Whether the board acted wisely and in the best interest of all citizens of the state is a broad and difficult question that should be resolved in another forum.

An appropriate order will therefore be entered, first, granting the motions to enforce conditionally the settlement agreement, and, second, declaring that the settlement is binding on all named parties, subject to the court’s determining later whether the settlement should be approved for the plaintiff class.

      . The resolution passed on May 20, 1981, provides in relevant part that
      CONSIDERATION OF GRANTING AUTHORITY TO THE STATE SUPERINTENDENT OF EDUCATION TO SETTLE AND OTHERWISE COMPROMISE CIVIL ACTIONS
      WHEREAS, from time to time the State Department of Education and its individual members in their individual and official capacity are named as party defendants to various lawsuits involving the work of the State Board of Education; and
      WHEREAS, from time to time it is advantageous and desirable that such lawsuits be compromised or otherwise settled without the necessity of a trial:
      NOW, THEREFORE, BE IT RESOLVED that the State Board of Education does hereby authorize the State Superintendent of Education, with the advice and consent of the general counsel to the Board and Department of Education to settle and/or otherwise compromise any and all litigation involving the State Department of Education and the State Board of Education and its members when in the judgment of the Superintendent such a course of action is beneficial to and desirable for the work of the State Board of Education; provided, however, that this authority shall not be construed to permit the State Superintendent of Education to settle and/or compromise any claim for monetary relief against the individual members of the State Board of Education absent the consent of each member.
      The consent decree drafted by Coody and Watkins did not involve any money damages against the board members in their individual capacities. Therefore, none of the parties to this lawsuit has contended that the exception to the superintendent’s authority to settle applies to the decree.

      . One or two board members present at the April 4 meeting suggested in their testimony before this court that they did not understand that they had approved and authorized the decree. Their testimony was equivocal, and even contradictory, and this court does not credit it. Rather, this court credits the testimony of those who say such approval was given by all present. For example, one board member testified as follows:
      I think all expressed opposition to the settlement, but all agreed that under the circumstances the settlement was—the Consent Decree as it was written, recommended by Dr. Teague and as explained by Mr. Coody would be—I don’t know what the word—we would do it. We would do—we would consent to this decree. In other words, I think there was opposition, but I think it was—the opposition was to various points in it. But overall, if this is the best we can do, then we will consent to it. And then we settled that idea. That’s when I spoke up and said let the Judge take credit, and then we decided that we would all be parties to it and we would accept it as it was written.
      Deposition of Harold Martin, p. 22.

      . Indeed, a settlement may be summarily enforced. However, where there is a challenge to the validity of the settlement, in particular the events allegedly giving rise to settlement, the parties should be allowed to engage in discovery if necessary, and the court should conduct an evidentiary hearing to resolve all disputed material facts. Massachusetts Casualty Insurance Co. v. Forman, 469 F.2d 259, 260 (5th Cir.1972) (per curiam), cert. denied, 424 U.S. 914, 96 S.Ct. 1114, 47 L.Ed.2d 319 (1976); Cia Anon Venezolana de Navegacion, supra. See also Mid-South Towing Co., supra. This was the procedure followed by the court here.

      . 1975 Ala.Code § 16-3-16 provides:
      The state board of education, through its executive officer, shall prescribe rules and regulations governing the training and certification of teachers in the public schools of the state, and for the acceptance of the diplomas of the colleges and universities of Alabama, as well as of other states. The state board of education, with the advice of the state superintendent of education, shall have full power and authority to promulgate and adopt rules and regulations governing the issuance of professional and special certificates.
      And § 16-23-2 provides:
      All matters relating to the issuance, extension and renewal of certificates based upon credentials, including transcripts of applicants' records submitted by institutions of higher learning in Alabama approved for the training of teachers, or by institutions operated under the control of the state board of education for the training of teachers, or by institutions located in other states whose standards of training teachers are the same or equivalent to those approved by the state board of education shall be subject to the rules and regulations of the state board of education. It shall be the duty of the state superintendent of education to submit for the approval of the state board of education from time to time rules and regulations governing the issuance, renewal and extension of certificates and to have printed a bulletin or bulletins which shall contain full information relating to the issuance, renewal and extension of certificates on credentials, including transcripts of applicants’ records.

      . On this issue, compare, e.g., Harden v. Adams, 760 F.2d 1158, 1165 n. 1 (11th Cir.1985); City of Bessemer v. Personnel Board of Jefferson County, 420 So.2d 6 (Ala.1982); Alabama Surface Mining Reclamation Commission v. Jolly, 362 So.2d 919 (Ala.Civ.App.1978), with Brown v. Board of Education of Blount County, 242 Ala. 154, 5 So.2d 629 (1942); Jordan v. Baldwin County Board of Education, 373 So.2d 861 (Ala.Civ.App. 1979).

      . Alabama law, like federal law, requires that an attorney's authority to settle be express. See Daniel v. Scott, 455 So.2d 30, 32-33 (Ala.Civ. App.1984) and cases cited therein. This court has been unable to find any Alabama law that requires that this authority be in writing, as claimed by the defendants.

      . The defendants rely on 1975 Ala.Code § 34-3-21, which provides:
      An attorney has authority to bind his client, in any action or proceeding, by any agreement in relation to such case, made in writing, or by an entry to be made on the minutes of the court.

        See also Ala.R.App.P. 47, which provides:
      No private agreement or consent between the parties or their attorneys, relating to the proceedings in any cause, shall be alleged or suggested by either against the other, unless the same be in writing, and signed by the party to be bound thereby; provided, however, agreements made in open court or at pretrial conferences are binding, whether such agreements are oral or written.

        See also, e.g., Wright v. Fountain, 454 So.2d 520 (Ala.1984); Young v. Reddock, 437 So.2d 1247 (Ala.1983). Here, the settlement between the parties was reduced to writing but was not signed by counsel. Whether these Alabama authorities require that the writing be signed by counsel is an issue this court need not reach.


author: BATTISTI, Chief Judge.

text:
    Francis A. SMITH, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.
    No. C82-2032-Y.
    United States District Court, N.D. Ohio, E.D.
    July 3, 1985.
    John A. Jeren, Jr., Wellman & Jeren, Youngstown, Ohio, for plaintiff.

      Richard J. French, Asst. U.S. Atty., Cleveland, Ohio, for defendant.
   ORDER

BATTISTI, Chief Judge.

This is an action for judicial review of a final decision of the defendant Secretary of Health and Human Services, pursuant to the Social Security Act, 42 U.S.C. § 405(g). This matter is presently before the Court on the October 3, 1984 Report and Recommended Decision of the Magistrate. The defendant filed objections to the Magistrate’s recommendations (October 15, 1984) and the plaintiff filed a brief in opposition to the defendant’s objections October 26, 1984).

For the reasons set forth below, the Magistrate’s report is hereby adopted as findings of fact and conclusions of law.

I.

On February 23, 1979, an Administrative Law Judge found that Smith was entitled to a period of disability commencing on March 27, 1978 and to disability insurance benefits, under 42 U.S.C. §§ 416(i) and 423 respectively, (Tr. at 156-57), as a result of a low back injury and other physical problems. On December 31, 1981, another Administrative Law Judge determined that “the claimant’s impairments” included degenerative spondylotic disease of the lumbar spine and fusion of L-4/L-5. (Tr. at 23). Nonetheless, he concluded that beginning October 31, 1981, “claimant’s impairments improved” and, thus, claimant’s disability had ceased as of that date. (Tr. at 23). Upon the Appeals Council’s affirmance of the December 1981 decision, that decision became a reviewable final decision of the Secretary of Health and Human Services.

Acting on plaintiff’s August 1982 complaint and subsequently filed papers, the Magistrate found that “[wjhile the Secretary concluded there had been medical improvement since [1977] ..., there is not substantial evidence to support this finding.” Magistrate’s Report at 2.

II.

The Secretary’s objections do not attack the merits of the Magistrate’s recommendation. Rather, the Secretary argues that the Social Security Disability Benefits Reform Act of 1984 (“Reform Act”) applies to this case, because the ease was pending on September 19, 1984. Thus, she claims that since the Administrative Law Judge did not apply the “medical improvement standard”, the case must be remanded to the Secretary for review in accordance with the 1984 amendments.

A.

In the instant case, the Magistrate applied the standard that an initial determination of disability gives rise to a presumption of continued disability which requires that the Secretary produce evidence that the claimant’s condition has improved before the disability can be deemed to have been completed. Magistrate’s Report at 1, citing Haynes v. Secretary of Health and Human Services, 734 F.2d 284 (6th Cir. 1984). In finding no substantial evidence to support the Secretary’s finding, the Magistrate also found that the complete record before him “serve[d] to confirm the presumption that plaintiff remains disabled____” Thus, the Magistrate found that the evidence before him—e.g., all of the evidence available in the individual’s case file—showed that plaintiff’s disability continued.

B.

The Secretary’s objections are hereby overruled. A case involving a medical improvement issue pending in September 19, 1984 need not be remanded when a court subsequently finds that the evidence could not support a finding of medical improvement and reinstates benefits. Accord Colella v. Heckler, 604 F.Supp. 593, 596-98 (E.D.Pa.1985); see also Stewart v. Heckler, 599 F.Supp. 298, 300 n. 6 (S.D.N.Y.1984).

The Reform Act’s medical improvement standard was designed to benefit disability claimants and to expedite the processing of claims for restoration of benefits. Accord Colella, 596-98. Congress could not have intended a claimant to go through the administrative process yet another time, in cases where a court has already determined that a finding of medical improvement could not be made on all of the evidence in the record. Accord id. at 596-97. This procedure would force a claimant to wait an additional period of time to obtain the restoration of benefits to which a district court has already determined the claimant’s entitlement. Accord Stewart, 599 F.Supp. at 300 n. 6. In addition, if on remand, benefits were terminated on an erroneous finding of medical improvement, it might take several years before the administrative decision was subject to judicial review and benefits could be restored. Accord Collella at 596. Such results would be inconsistent with the Reform Act’s remedial purposes and would harm some members of the class whom the Reform Act is designed to protect from arbitrary termination of benefits. Id.

In the instant case, the Magistrate has concluded that the evidence did not support a finding of medical improvements. In effect, he found that the record could not support a decision by the Secretary that plaintiff’s condition had improved. In this opinion, the Magistrate’s findings are adopted. Thus, the Reform Act does not require a remand to the Secretary in this case.

Conclusion

Accordingly, defendant’s motions for summary judgment and remand are denied. Plaintiff’s motion for summary judgment is granted. This case is remanded to the Secretary for the reinstatement of plaintiff’s disability benefits.

IT IS SO ORDERED.

      . In this case, the Secretary’s decision to terminate plaintiffs benefits was not based on substantial evidence. Thus, the fact that the Magistrate based his determination on the Sixth Circuit’s Haynes standard of continuing disability rather than the Reform Act’s standard, does not make it necessary to remand this case to the Secretary to determine the existence of "medical improvement”.


text:
    George A. BURTON, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.
    No. C79-2300.
    United States District Court, N.D. Ohio, E.D.
    July 3, 1985.

      Henry A. Roth, Zucker & Garson, Nancy L. Olson, Cleveland, Ohio, for plaintiff.
    Annette G. Butler, Asst. U.S. Atty., Cleveland, Ohio, for defendant.
   ORDER

BATTISTI, Chief Judge.

On December 14, 1979, Plaintiff filed the instant action which was amended on July 7, 1982. The first amended complaint alleges that plaintiff’s termination from the United States Postal Service was racially discriminatory and retaliatory in nature (Count I of the Complaint.) Count II of the Complaint sought district court review of the Merit Systems Protection Board decision, 10 M.S.P.B. 402, 11 M.S.P.R. -, upholding plaintiff’s termination from government service. Defendant Postal Service filed motions to dismiss plaintiff’s action and to strike plaintiff’s demand for punitive damages.

On January 22, 1985, Magistrate Jack B. Streepy filed his Report and Recommendation. The Magistrate recommended that plaintiff be given “thirty days from the issuance of the Court’s order” to amend his complaint in order to cure the potentially fatal lack of specificity in his racial discrimination claim. In addition, the Magistrate recommended that plaintiff also be given thirty days to respond why the defenses of waiver, estoppel or equitable tolling might apply to his failure to file his administrative complaint in a timely fashion; otherwise, the Magistrate noted dismissal for untimely exhaustion of administrative remedies must be entered. Magistrate’s Report at 7. Finally, the Magistrate found that Count 2 of Plaintiff’s Complaint be dismissed for lack of jurisdiction and that defendant’s motion to strike plaintiff’s punitive damages demand be stricken since punitive damages are not available in Title VII actions.

The plaintiff did not file objections to the Magistrate’s Report. However, on February 22, 1985, plaintiff filed a Second Amended Complaint. The Second Amended Complaint is limited to the racial discrimination count and corrects pleading errors of the First Amended Complaint. See Section IV infra. On the same date plaintiff filed a “Supporting Brief in Opposition to Defendant’s Motion for Summary Judgment.” On April 18, 1985, defendant filed a motion to dismiss plaintiff’s second amended complaint. On June 14, 1985 plaintiff filed a Supplemental Brief in Opposition to Defendant’s Motion to Dismiss. Therefore, this Court must review plaintiff’s two submissions and defendant’s April 18th Motion to Dismiss in light of the Magistrate’s Recommendation and Plaintiff’s Supplemental Brief. In particular, the Court must examine whether plaintiff can survive summary judgment for failing to timely file his administrative complaint, and whether the Court has jurisdiction to entertain the appeal of the MSPB decision.

I.

TIMELINESS OF FILING THE ADMINISTRATIVE CLAIM

In order to have his administrative claim processed, an employee must bring his claim to the Equal Employment Opportunity Counselor within 30 days of the discriminatory incident. 29 C.F.R. § 1613.-214(a)(l)(i). Second, the employee must file a formal written complaint before the EEO officer or manager within 15 days of the final interview with the EEO counselor. 29 C.F.R. § 1613.214(a)(l)(ii).

In the instant case, plaintiff concedes he filed the formal written complaint approximately 14 days late. Defendant’s argument that the fifteen-day rule is jurisdictional and therefore plaintiff’s complaint should be dismissed was properly rejected by the Magistrate. However, while timely filing is not jurisdictional, the time requirements are subject to waiver, estoppel and equitable tolling.

On June 14, 1985, plaintiff filed a “Supplemental Brief in Opposition to Defendant’s Motion to Dismiss” wherein the Court gave plaintiff an opportunity to demonstrate how waiver, estoppel or equitable tolling would excuse his delay in filing his formal complaint with the EEOC. Plaintiff’s brief states that “plaintiff was effectively without assistance of counsel through no fault of his own. Mr. Burton acted with the utmost diligence in pursuing his claim.” Supplemental Brief at 4.

The Sixth Circuit has held that time limitations may be tolled on equitable grounds not inconsistent with the legislative purpose. Leake v. Univ. of Cincinnati, 605 F.2d 255, 259 (6th Cir.1979). Similarly, in Jones v. TransOhio Savings Association, 747 F.2d 1037 (6th Cir.1984), the Court held that equitable tolling could be considered with regard to the Truth in Lending Act. The Court went on to state “In determining whether equitable tolling is appropriate, ‘the basic inquiry is whether congressional purposes is effectuated by tolling the statute of limitations.’ ” Id. at 1040. The Supreme Court has previously stated that “a technical reading of Title VII’s filing provisions would be ‘particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process’ ”. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 397, 102 S.Ct. 1127, 1134, 71 L.Ed.2d 234 (1982).

This Court believes that the circumstances of the instant ease merit a finding that the time limitation here be equitably tolled. Here, plaintiff indeed pursued his claim as diligently as possible according to plaintiff’s affidavit. His attorney, Steve Fitten, apparently failed to contact him following the April 27, 1979 interview with the EEOC. Attorney Fitten seems to have irresponsibly abandoned his client and the case and left town without informing his client. However, as the Magistrate notes, the formal written complaint is dated May 10, 1979 although not mailed until May 29, 1979. Therefore, plaintiff’s attorney prepared the formal written complaint to the EEOC but failed to mail it on time. Plaintiff retained new counsel in June 1979, according to his affidavit. The instant case presents a clear situation whereby penalizing an innocent plaintiff for the irresponsibility of his counsel would defeat the remedial purpose of Title VII and work to the detriment of the untrained laymen referred to in Zipes. Furthermore, the defendant’s interest in prompt notice has not been substantially damaged by a delay in filing since the notice was received within approximately two weeks of the deadline.

Accordingly, defendant’s motion to dismiss which has been converted into a motion for summary judgment is denied with respect to the racial discrimination claim under 42 U.S.C. § 2000e. (Count I).

II.

The Magistrate has correctly concluded that Count II of plaintiffs Complaint, seeking judicial review of a Merit Systems Protection Board decision, does not present a “mixed case” of both discrimination and non-discrimination issues. Hence, this Court lacks jurisdiction under 5 U.S.C. § 7702(a)(1). Accordingly, Count II of plaintiff’s complaint is dismissed; defendant’s motion to dismiss Count II is granted.

III.

Since, the Sixth Circuit has held that punitive damages are not recoverable in Title VII actions, defendant’s motion to strike plaintiff’s demand for punitive damages is granted.

IV.

Plaintiff has properly named the Postmaster General as defendant in his Second Amended Complaint filed February 22, 1985. Additionally, plaintiff has cured the lack of specificity in his pleading by stating that plaintiff’s supervisor “engaged in racial discrimination against the plaintiff by constantly forcing excessive work demands on plaintiff that were not placed on his white co-workers,” specifically 600 stops per route assigned to plaintiff versus a normal route of 300 stops. Second Amended Complaint, 119-10, at 2-3. Thus, defendant’s motion to dismiss Count I for improper party and lack of specificity is denied.

V.

For the aforementioned reasons, defendant’s motion to dismiss Count I of plaintiff’s Second Amended Complaint is denied on the grounds that the EEO filing deadline was equitably tolled; defendant’s motion to dismiss Count II of plaintiff’s First Amended Complaint is granted for lack of jurisdiction; and defendant’s motion to strike plaintiff’s prayer for punitive damages is granted.

IT IS SO ORDERED.


author: GARRITY, District Judge.

text:
    Tallulah MORGAN et al., Plaintiffs, v. John A. NUCCI et al., Defendants.
    Civ. A. No. 72-911-G.
    United States District Court, D. Massachusetts.
    July 5, 1985.

      Larry Johnson, Robert Pressman, Cambridge, Mass., Laurence S. Fordham, Foley, Hoag & Eliot, Boston, Mass., for plaintiffs.
    Caroline Playter, Kehoe, Doyle, Playter, Novick & Strimaitis, Boston, Mass., Kenneth Kimerling, Puerto Rican Legal Defense & Education Fund, Inc., New York City, for El Comite.
    Robert Blumenthal, State Bd. of Educ., Quincy, Mass., Robert H. Bohn, Jr., Sp. Asst. Atty. Gen., Gitlin, Emmer, Kaplan & Bohn, Boston, Mass., for State Bd. of Educ.
    Steven P. Perlmutter, Asst. Corp. Counsel, Boston, Mass., for Mayor, City of Boston.
    James T. Grady, Grady, Dumont and Dwyer, Boston, Mass., for BTU-Boston Teachers Union.
    Richard W. Coleman, Segal, Roitman & Coleman, Boston, Mass., for BASAS-Boston Ass’n of School Administrators and Supervisors.
    Robert Pressman, Martin A. Walsh, Boston, Mass., for Community Relations Service.
    Lucille Koch, Evalena Higginbottom, Acting co-Executive Directors, Citywide Parents Council, Boston, Mass., for Transition Counsel.
    Marshall Simonds, Henry C. Dinger, Goodwin, Procter & Hoar, Michael Betcher, Maura McGroarty, Boston School Committee, Dept, of Implementation, Boston, Mass., for Sp. Counsel Boston School Committee and Boston School Dept.
    Nancy Gertner, Silvergate, Gertner; Baker & Fine, Boston, Mass., Herbert Henderson, N.A.A.C.P. Sp. Contribution Fund, Brooklyn, N.Y., for Concerned Black Educators of Boston.
    Thomas I. Atkins, Brooklyn, N.Y., Henry Dinger, Goodwin, Procter & Hoar, Boston, Mass., for school defendants.
   MEMORANDUM AND ORDER ADOPTING SCHOOL DEFENDANTS’ PROPOSAL REGARDING OTHER MINORITY ADMINISTRATORS

GARRITY, District Judge.

On October 11, 1984 the school defendants filed a motion to modify the administrator rating and screening procedures first established by the court in orders issued February 24, 1976. One aspect of the proposed modifications concerned affirmative action in the hiring of other minority administrators and set a goal of attaining an administrative staff of ten percent other minority by January 1986, and provided that, in order to achieve the ten percent goal, at least one out of three administrative appointments would be other minorities. These modifications and several others not relevant here, were adopted by the court without objection.

However, the Boston Teachers Union (“BTU”) and the Boston Association of School Administrators and Supervisors (“BASAS”) objected to a further provision which stated that “[i]f there is a reduction in force or layoffs, the percentage [of other minority administrators] attained will be maintained.” The parties agreed that the provision was not urgent since there were no layoffs of administrator imminent or contemplated, and the court therefore withheld decision on the matter until the BTU and BASAS could present an offer of proof and arguments supporting their objection. After considering the filings of the BTU and BASAS and the responses from plaintiff-intervenors El Comité and the school defendants, the court approves and adopts the disputed provision as an order of the court.

The sole issue in this matter is whether the court has the authority to order remedies on behalf of other minority students and their parents. In this instance the court’s authority derives from its original findings on liability and previous orders regarding layoff procedures which constitute the law of this case, and the continuing underrepresentation of other minorities in administrative positions.

At the time the liability findings were entered in 1974 black parents and their children were the only plaintiffs in this case. The court therefore emphasized and made explicit its findings regarding their treatment by the school defendants. However, the findings are also replete with references to the discriminatory treatment of “non-white” children in general and “other minority” children in particular. Morgan v. Hennigan, D.Mass.1974, 379 F.Supp. 410, aff’d 1 Cir.1974, 509 F.2d 580, cert. denied 1975, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449. The court set forth evidence showing that school defendant actions designed to produce and maintain segregation affected other minority children in a manner which paralleled that experience by black students in such areas as the maintenance of overcrowded and underutilized schools, id. at 426; the construction and acquisition of new facilities, id. at 428-9; districting and redistricting of schools, id. at 443-5; and the enrollment at the exam schools, id. at 467. The court summarized its findings by noting the ratio of white, black and other minority students in the public schools and stating that “[t]his overall ratio ... is far out of line with the ratios in most of the system’s schools.” Id. at 424.

The court granted the motion of El Comite de Padres Pro Defensa de la Educación Bilingüe (“El Comité”) to intervene on January 23, 1975. El Comité was charged with representing the interests of non-English speaking students, or as they have become known in the parlance of this case, “other minorities”. Other-minority students were immediately incorporated into every aspect, of the remedial process of this case. Most importantly, the court’s remedial orders of June 1975 established student assignment procedures which required the desegregation of other minority students as well as black and white students, stating, “[t]he plan’s assignment guidelines aim, first, to make sure that schools are not identifiably one-race, and secondly, to assure that no racial or ethnic group— black, white or other minority is disproportionately isolated in any school____” Morgan v. Kerrigan, D.Mass.1975, 401 F.Supp. 216, 240, aff’d 1 Cir.1976, 530 F.2d 401, cert. denied 1976, 426 U.S. 935, 96 S.Ct. 2648, 49 L.Ed.2d 386.

Remedial orders concerning faculty and administrative staff desegregation have been issued on several occasions. The orders of February 24, 1976 required the school defendants to proceed with the appointment of other minority administrators “on an accelerated basis.” The court noted that “[t]he record does not support the establishment of a specific goal for the appointment of other minority administrators. However, this finding is without prejudice to the submission of further evidence by El Comite on behalf of other minority students, who are a growing component of the student body.”

After a series of hearings on the issue of faculty recruiting and hiring the court explicitly found, during a hearing on June 16, 1978, that it had the “jurisdiction to enter orders with respect to the employment of Hispanic and other minority faculty no less than its jurisdiction to enter orders regarding employment of black faculty.” The court’s decision at that time was based on “the separate treatment of the other minority students in the school system ... and the subsequent affirmances on appeal ... of the [student assignment] plan [which] gave the other minority group no less in the way of rights to remedy than the black or white groups.” The order of July 5, 1978 which required the school defendants to “use their best efforts to continue to increase the percentage of other minority administrators ...” was later withdrawn pursuant to a comprehensive remedial agreement, based upon Lau v. Nichols, 1974, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1, between El Comité and the school defendants reached during the pendency of an appeal of the July 5 order. However the basis of the court's finding regarding the extent of its authority remains valid and it is now reaffirmed.

The court made use of this authority in 1981 when the school defendants sought to lay off teachers. After another extensive investigation into the extent of faculty desegregation, it ordered on June 2,1981 that “the systemwide percentage of other minority teachers will remain at its current level.” The June 2, 1981 order was appealed and affirmed. Morgan v. O’Bryant, 1 Cir.1982, 671 F.2d 23, cert. denied, 1982, 459 U.S. 827, 103 S.Ct. 62, 74 L.Ed.2d 64.

The current status of other minority administrator hiring justifies the extension of this remedial protection as agreed upon by the school defendants and El Comite. Other minorities constitute approximately ten percent of the population of Boston and 24 percent of the public school student population, yet the school system’s administrative staff has never been more than six percent other minority. As of August, 1984, other minorities constituted 5.56 percent of the total number of administrators. Most of these other minority administrators have been hired only recently and have relatively little seniority. They would therefore be disproportionately affected by layoffs if not granted protection. The protection afforded other minority administrators by the school committee’s proposal is not absolute, but merely guarantees that the slow and fitful progress in other minority hiring made thus far be preserved. Thus other minority administrators could be laid off, but only in proportion to their numbers.

Accordingly, the objections of BRU and BASAS are overruled and the provision of the school defendants’ proposed modification of the administrator screening and rating process which states that “[i]f there is a reduction in force or layoffs, the percentage [of other minority administrators] attained will be maintained,” is adopted as an order of the court.

MEMORANDUM, DRAFT FINAL JUDGMENT AND NOTICE OF HEARING

In its Memorandum and Orders of Disengagement issued December 23, 1982 the court provided the parties with a transitional mechanism for bringing the court’s involvement in the remedial process of this case to an end. Those orders were the first step, after the court’s efforts to.promote a consent decree had failed, toward closing the case and returning to the community in general and to the school committee and department in particular the responsibility for protecting the rights of black and other minority parents and schoolchildren within the Boston public school system. Since then the court has terminated its jurisdiction in several areas in which remedial orders were entered and has approved many modifications of the student desegregation plan advanced by the defendants. It is now time to take the final steps to close this case. Seeking as broad an agreement as possible regarding the terms of the court’s withdrawal, the court herewith issues a draft form of its final judgment, for comment and discussion by the parties.

The fact that the procedural mechanism created by the December 1982 Orders for the resolution of disputes between the parties was so little used is evidence that the parties have developed a common understanding of their respective rights and responsibilities under the remedial plan and have become familiar with its operation. The new thirteen-member school committee has gained important experience in overseeing the remedial phase of this case and it has demonstrated its willingness and ability to implement it. Mayor Raymond L. Flynn has made a strong public commitment to the continuing vitality of the Boston public school system and to desegregation. Joseph M. McDonough, who demonstrated his fidelity to the principles of desegregation in serving as the first temporary receiver of South Boston High School and in several other administrative positions within the school department, has been named acting superintendent. Pupil attendance percentage during the 1984-85 school year was 88.5 percent, the highest since the 1970-71 school year. The five reports published by the State Board of Education pursuant to the December 1982 orders provide a clear assessment of what has been and what remains to be accomplished.

On December 20, 1984, the deadline set by the court for proposing modifications for the 1985-86 school year, the school defendants presented to the court eleven proposed modifications, such as: a new assignment procedure in districts 3 and 4; consolidating the community school districts for administrative efficiency; allowing kindergartners to attend their geocoded elementary school; consolidating Madison Park and the Occupational Resource Center; transforming the Umana School into a district 8 middle school; adding grade six to the exam schools; permitting some schools to compete for a certain number of students without regard to geocode; and allowing schools in integrated neighborhoods to compete for the neighborhood students without regard to geocode. Amplification of the proposals in open court and negotiations among the parties resulted in eight of the eleven proposed modifications being adopted by the court with the full concurrence of the parties. This experience demonstrated the potential for continuing progress through future negotiations within a frame of reference fashioned by decisions of the Supreme Court of the United States.

The draft final judgment attached hereto is designed to establish basic principles which must survive the court’s departure and to transfer to the school defendants, without judicial oversight, the responsibility for changes that do not conflict with these basic principles. Toward this end the draft establishes two categories of orders. First are permanent orders on six essential aspects of the desegregation remedy. Next is a permanent order requiring the school defendants to carry out the specific orders constituting the present amended remedial plan, unless modified by the school defendants after structured negotiations. These permanent orders would be enforceable by any party to this case through a petition to the court alleging that the defendants were violating the final judgment. An explanation of each order follows.

(1) Unified Facilities Plan—This permanent order requires that the school, city and state defendants, the so-called joint planners, carry out the Unified Facilities Plan pursuant to an order to be issued in the near future. The court already, on May 9, 1985, adopted and ordered into effect facilities improvements as submitted by the joint planners for 1985-86, the first year covered by the ’85 UFP. The UFP order will for the most part adopt the ‘85 UFP filed by the parties, but will for purposes of desegregation rearrange the priorities accorded to renovations during the 1986-87 school year and thereafter at particular schools. The UFP will not be as comprehensive or refined as it might be, but will call for as much as can be achieved consistently with the financial condition of the city. A decade of procrastination by the joint planners must end.

(2) Permanent Injunction—This order repeats the injunction prohibiting discrimination and segregation on the basis of race which was initially issued in 1974 as a partial judgment following the court’s finding of liability. Morgan v. Hennigan, D.Mass.1974, 379 F.Supp. 410, 484. It is a broad, partial statement of the plaintiffs’ rights in the remedial stage of a desegregation case; partial because plaintiffs are also entitled to specific affirmative relief from the continuing effects of past discrimination. Green v. County School Board of New Kent County, 1968, 391 U.S. 430, 437-438, 88 S.Ct. 1689, 1693-1694, 20 L.Ed.2d 716.

(3) Student Assignments—The preservation of desegregation in student assignments is required by this order. “The district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation.” Swann v. Charlotte-Mecklenberg Board of Education, 1971, 402 U.S. 1, 26, 91 S.Ct. 1267, 1281, 28 L.Ed.2d 554. Changing circumstances such as the racial/ethnic distribution of the population, construction or closing of facilities or new programs may require changes in assignment methods or guidelines. However, the acceptable levels of desegregation under the current circumstances, including the new assignment process in districts 3 and 4, have been clearly developed in the form of flexible self-adjusting ranges which may be applied to many situations without the need for modifications.

Under this paragraph the method of assigning students or the racial ethnic guidelines may be changed by the school defendants after public notice and negotiations, provided that they make every effort to assure that the resulting enrollments reflect the public school population of the district to the greatest degree practicable. A point made by the State Board in its annual report on desegregation in Massachusetts dated February, 1984, bears repeating:

Monitoring of the [court-ordered] assignment system over the past year confirms its complexity and impartiality, and suggests that changes should be made only with great care and a good understanding of their possible unanticipated consequences____ A system which has achieved extensive desegregation with a high proportion of students receiving their schools of choice should not be abandoned lightly.

The term “assignment district” is used in the order to distinguish the districts as recently consolidated for administrative purposes and the eight community districts which serve as the assignment areas and have not been consolidated. The vote of the school committee on June 25, 1985 appointing five acting district superintendents did not make the distinction between assignment districts and administrative districts which was clearly stated by their attorney in the motion presented to and approved by the court. The distinction is important because desegregation within each school is premised on racially and ethnically representative assignment districts. District lines were drawn with great care and after much consultation by the four masters in 1975 and, although demographic changes have occurred, they remain a workable foundation for desegregation and should not be changed except with equal care.

(4) Parent Councils—As stated in the court’s order of October 4, 1974, the purposes of these councils were and remain “to insure adequate and impartial investigation and responsible recommendations on racially and ethnically oriented problems arising at the school; to create a means of communication between parents, students, teachers and administrators regarding the solution of such problems; and to promote an environment of understanding and common purpose among the various elements of the community so that the best available education may be offered to all children.”

In the course of restructuring the Citywide Parents Council (“CPC”) and the School Parent Councils (“SPCs”) in 1982, the parents and the Boston School Committee negotiated and signed an agreement dated November 8, 1982, and filed with the court on November 17, 1982. This agreement was called “an historic step forward for the Boston Public Schools” and was “intended to strengthen the parent role in facilitating the desegregation of the Boston Public Schools and improving the quality of education provided to all children in the Boston Public Schools.”

However, the court-ordered parent organizations have never been completely accepted by the school defendants and the full promise of their participation in the public school community has yet to be realized. For example, the first section of the 1982 agreement provided that the school defendants’ central administration would disseminate to each principal and SPC monthly data reports which would serve as an agenda item for meetings between them. The third section provided that, “[wjhere new planning or program initiatives are proposed on the district or school level, the appropriate School Parent Council or District Parent Council shall appoint parent members to these task forees/committees. Parent members of these task forces/committees should regularly report on committee activities to the School Parent Council or the District Parent Council.” Nevertheless, despite exemplary service by CPC members on staff screening committees, the court-ordered councils are excluded from the process whereby parents are selected for membership in School Based Management and School Improvement Programs. Are parents who have been duly elected to SPCs being reorganized out of their agreed roles?

The CPC and SPCs were not established to be simply school booster organizations or symbolic representatives. The school defendants must live up to their agreement

and do everything they reasonably can to help the duly elected parent councils deliver the unique assistance for which they were created. Accordingly the draft order provides that the CPC and SPCs would become self-governing bodies and be adequately funded, thereby securing a stable future in which they may for the first time have a real opportunity to establish their effectiveness.

(5) Faculty and Staff—The January 28, 1975 and February 24, 1976 orders concerning faculty and staff desegregation respectively, required that the school defendants maintain black faculty and both central and school-based administrators at no less than 20% of the total of each group, and set an affirmative action goal of 25% later adopted and reaffirmed by the school committee. The 20% figure was chosen because it represented the approximate percentage of black residents in Boston at that time. Since that time the percentage of residents of Boston who are black has risen to approximately 23% and can be expected to continue to change in the future. Currently, the number of black administrators is 24% of the total in both category I (school-based), and category II (central and district), but black faculty are still below 21% of the total. Paragraph 5 of the permanent orders preserves the workability of these orders by providing a self-adjusting minimum of faculty and staff desegregation tied to the percentage of black residents in the City of Boston.

(6) Department of Implementation— Paragraph 6 of the permanent orders preserves an organization whose continuing presence will be essential to the future progress of the remedial process. The Department of Implementation (“DI”) has provided a centralized unit within the School Department with a staff of approximately 44 professionals which is experienced in the implementation of the remedial plan and can be held accountable. As described in the court’s memorandum and orders of May 6, 1977, which established the DI in its current form, the DI staff’s responsibilities include:

supervising student assignments, transfers, data processing, and programmatic concerns ... assuring that] students are assigned to schools in accordance with court-ordered procedures ... initiating] investigations and corrective actions ... investigating problems related to the availability of appropriate facilities, equipment and materials, and recommending corrective actions ... initiating and carrying out curriculum and staff development activities to assure that individual schools have suitable programs to meet the complete range of student needs resulting from the implementation of court-ordered desegregation ... assigning] new students in the system in accordance with court-ordered guidelines ... receiving] and checking] applications for student assignments ... the collation and categorizing of Applications for Assignment ... the reassigning of students who have moved to new geocodes and assignments to the Examination Schools, the Magnet Schools, to Vocational Programs and to Bilingual and Special Education programs.

The December 1982 Orders charged the DI with acting as the internal monitor of the school defendants’ compliance with court orders and as a source of information to the parties and the CPC and the State Board.

Diffusing these extensive and complex responsibilities would impair the school department’s ability to administer the plan in a stable and predictable manner and to develop and coordinate appropriate modifications of the existing plan when needed. Moreover, any dismantling or significant reduction in the size of the DI would diminish the effectiveness of the State Board, parents and others who must rely on information provided by the DI in evaluating the performance of the school defendants.

(7) Previous Orders—Paragraph 7 applies to orders apart from the basic principles embodied in the preceding paragraphs. Specific court orders previously issued in areas in which the court has not terminated its jurisdiction shall continue to govern the remedial process in this case, but may be modified without, however, lessening the school defendants’ obligation to carry them out as modified. After years of experience and adjustment, the current remedial plan has proven to be workable and equitable.

(8) Modification Procedure—The role of the court in suggesting and approving modifications is eliminated. The State Board’s detailed monitoring of the desegregation process, ordered by the court in December 1982, shall cease. Responsibility for proposing necessary modifications and ultimately deciding upon them will be lodged exclusively with the School Committee; but the procedural mechanisms provided will require that proposed modifications be subjected to the scrutiny and appraisals of responsible state and city officials and parent groups.

The procedural mechanism for modifying previous court orders requires the participation of an organization such as the Boston Chapter of the NAACP, which has long-standing and stable ties to the plaintiff class of black parents. The various entities which provided legal representation for the plaintiffs during these proceedings seem not as well suited to representing the black community in long-term negotiations as a permanent, local organization.

Notice of Hearing

Comments and legal memoranda regarding the draft final judgment may be filed on or before July 26, 1985 and replies by August 5, 1985. A hearing as to the entry of final judgment in the form of the attached draft or in another form is hereby scheduled for August 7, 1985 at 2:00 p.m.

[DRAFT] FINAL JUDGMENT

After hearing and consideration of the parties’ comments and positions on the draft final judgment issued on July 5, 1985, and on the basis of all orders and memoranda of decisions previously entered in these proceedings, it is ORDERED and ADJUDGED that the school defendants, viz., members of the Boston school committee, Superintendent of Schools, their officers, agents, servants employees, attorneys, and all other persons in active concert or participation with them who have actual notice of this judgment:

Unified Facilities Plan

(1) shall take all steps reasonably necessary, jointly with the city and state defendants, to whom this paragraph also applies, to implement the Unified Facilities Plan as approved and modified by orders entered last month;

Permanent Injunction

(2) be permanently enjoined from discriminating on the basis of race in the operation of the public schools of the City of Boston and from creating, promoting or maintaining racial segregation in any school or other facility in the Boston public school system;

Student Assignments

(3) shall assign students so that to the greatest degree practicable the racial/ethnic composition of each community district school reflects the public school student population residing in the assignment district in which the school is located, and of each citywide magnet school, the citywide public school population exclusive of district 8;

Parent Councils

(4) shall maintain the Citywide Parents Council and School Parent Councils as adequately funded, self-governing organizations capable of meeting their court-ordered responsibilities;

Faculty and Staff

(5) shall maintain a proportion of black faculty and administrative staff at least commensurate with the proportion of black residents in the City of Boston as measured in each quintennial federal census;

Department of Implementation

(6) shall maintain the Department of Implementation as a distinct unit, adequately staffed and with full access to computer facilities, capable of meeting its court-ordered responsibilities;

Previous Orders

(7) shall carry out all existing orders previously entered in areas in which the court has not terminated its jurisdiction and, if modified as hereinafter provided, such modified orders;

Modification Procedure

(8) The school defendants may modify any order previously entered in these proceedings provided (a) that such modification is specific and does not violate the permanent orders stated in the seven preceding paragraphs and (b) that notice and opportunity to be heard is given, as follows: they shall issue a public notice identifying the order to be modified and the proposed modification; and shall mail copies to (a) the State Board of Education, (b) the Attorney General for the Commonwealth, (c) the Mayor, (d) the Citywide Parent Council and (e) the Boston chapter of the NAACP, to all of whom the Department of Implementation shall promptly make available all relevant data reasonably requested. The Board of Education shall within three weeks initiate and moderate negotiations concerning the proposed modification. After agreement has been reached or the Board has determined that further negotiations would not result in agreement, or more than three months have passed since the public notice was given, whichever is earliest, the School Committee may adopt or reject the proposed modification either as initially proposed or amended during negotiations, provided that it is specific and does not violate the permanent orders.

      . The unions no longer strongly argue that Firefighters Local #1784 v. Stotts, 1984, — U.S. -, 104 S.Ct. 2576, 81 L.Ed.2d 483, is relevant to this matter. That case involved the balancing affirmative action in layoffs with seniority where no judicial determination of liability had been made and no proof of discrimination against those individuals who would benefit from the affirmative action had been found. Here a finding of constitutional violations has been made. The Supreme Court’s analysis of individual proof of discrimination is inapplicable in the present situation, where the remedy is sought on behalf of third parties: the public schoolchildren of Boston.

      . The court’s remedial orders concerning faculty and staff desegregation are based on the remedial requirements of the plaintiffs and plaintiff-intervenors, not on any independent rights of black and other minority educators themselves.

      . When a similar order regarding black administrators was issued at the hearing of July 9, 1981, an order regarding other minority administrators was deemed unnecessary because of the school defendants’ plans to retain the only two other minority principals employed at that time.

      . The court does not anticipate that such petitions will be necessary for the same reasons that it finds that the time is ripe for ending its involvement in the case. However, the plaintiffs are entitled to court enforcement in the event that the school defendants violate permanent orders.

      . The January 28, 1975 order is published at Morgan v. Kerrigan, 388 F.Supp. 581, and affirmed by the First Circuit, 1 Cir.1976, 530 F.2d 431, cert. denied, Doherty v. Morgan, 1976, 426 U.S. 935, 96 S.Ct. 2649, 49 L.Ed.2d 386. The February 24, 1976 order was never published, nor appealed.

      . The recruitment and hiring of other minority faculty and staff is governed by a so-called Lau Agreement (after Lau v. Nichols, 1974, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1) between the school defendants and El Comite approved by the court on November 26, 1984.