APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (District of Columbia Civil Action No. 71-793).
Clark, Associate Justice,*fn* Gibbons and Hunter, Circuit Judges.
On March 8, 1976, the district court approved appellees' request to make a tender of back pay to certain members of the class represented by appellants for a possible settlement of their claims in this action for injunctive and monetary relief from alleged racial discrimination in employment. Also, the court denied appellants' motion for a preliminary injunction to bar the tender pending an evidentiary hearing. The threshold issue presented by this appeal is whether the district court's order is appealable. We conclude that the March 8 order is not appealable and accordingly dismiss the appeal.*fn1
Appellants Rodgers and Turner are black employees of the United States Steel Corporation and members of Local 1397, United Steelworkers of America and United Steelworkers of America, AFL-CIO. They commenced this action against the company and the unions in the Western District of Pennsylvania in August 1971 under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. and other statutes seeking injunctive relief and back pay to remedy racial discrimination at the Homestead Works of United States Steel. On December 9, 1975, the district court certified the case as a class action;*fn2 the class consists of more than 1200 black workers at the plant.
On April 12, 1974, the United States filed a complaint in the Northern District of Alabama against nine steel companies, including United States Steel, and the United Steelworkers of America. The complaint alleged a pattern or practice of discrimination in employment against women, blacks and Spanish-surnamed Americans in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and contractual obligations under Executive Order 11246, 3 C.F.R. § 169. Simultaneously with the filing of the complaint, the parties submitted for approval by the court a nationwide settlement in the form of two consent decrees. Appellants moved to intervene to challenge the terms of the consent decrees. The district court granted the motion to intervene but rejected appellants' objections to the decrees. Thereafter, the Fifth Circuit affirmed. United States v. Allegheny-Ludlum Industries, Inc., 63 F.R.D. 1 (N.D. Ala. 1974), aff'd, 517 F.2d 826 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S. Ct. 1684, 48 L. Ed. 2d 187, 44 U.S.L.W. 3593 (1976).
The terms of the consent decrees are discussed at length in the Fifth Circuit's opinion and need not be repeated here. It is sufficient to state that the defendant companies and union agreed in the consent decrees immediately to implement hiring and seniority reforms and to establish a $30,940,000 back pay fund to be paid to minority and female employees injured by the unlawful practices alleged in the complaint. No employee is a party to the consent decrees and the decrees do not seek by their terms to bind the employees by way of res judicata or estoppel. However, as a condition to their acceptance of the back pay which is to be tendered, employees are required to execute releases waiving their rights to seek further injunctive or monetary relief for any alleged discriminatory practices which were in existence prior to the date on which the decrees were entered. Permission must be obtained from those district courts where private class actions are pending before the tender of back pay and release can be sent to such class members.*fn3
On January 22, 1976, United States Steel and the United Steelworkers filed a joint motion in the Western District of Pennsylvania for permission to make the tender of back pay to and seek releases from certain employees of the Homestead Works who are members of the Rodgers class.*fn4 The parties estimate that of the 1200 members of the class, only 670 are eligible to receive back pay under the consent decrees.*fn5 Appellants opposed the joint motion. They requested a hearing pursuant to rule 23(e) of the Federal Rules of Civil Procedure*fn6 on the ground that the tender constituted a "dismissal or compromise" of the action. In addition, they contended that the injunctive relief under the consent decrees and the amount of back pay proposed to be tendered were inadequate, that the notice of rights and related documents were, inter alia, unintelligible, inaccurate in portions and deterred employees from seeking advice of counsel and that the tender procedure was coercive. Appellants also filed a motion for a preliminary injunction which sought to enjoin the tender "pending an evidentiary hearing." App. at 944a. Without ruling on the request for a rule 23(e) hearing, the court held a hearing on February 17 and 18 on the questions whether the tender offer, the notice of rights and release form were fair and adequate and whether further proceedings would be requested.*fn7
On March 8, 1976, the district court denied appellants' motion to enjoin the tender preliminarily and approved the tender of back pay to and solicitation of releases from the employees at the Homestead Works. The court noted at the outset that several issues had been litigated and decided in other forums and were not before it in the instant proceeding; these issues were the adequacy of the total back pay fund of $30,940,000 and of the injunctive relief provided by the consent decrees, and the substantive legality of the release. App. at 12a-13a.*fn8 A rule 23(e) hearing was denied because in the court's view the rule "does not attach to direct settlements with individual class members which have no effect upon the rights of others," but rather is "limited to the dismissal or compromise of the class action itself." App. at 14a. The court stated that it could not characterize the amount of back pay to be tendered to Rodgers class members as "unfair or unreasonable." In the court's opinion, the proposed notice of rights and release documents "fully apprise recipient employees of the terms of the tender and of the options that are open to them . . . and assure, to the extent reasonably possible, that affected members of the plaintiff class who execute waivers will do so knowingly and voluntarily." Id. at 19a. Finally, the court found the one-step procedure for the tender - transmission of the back pay check together with the notice and release forms - not to be "inherently coercive," and approved of the sending of certain letters by the Equal Employment Opportunity Commission to members of the Rodgers class who have charges pending before the Commission. Id. at 23a-25a; see note 4 supra.
Thereafter, appellants filed a motion to certify the court's order under 28 U.S.C. § 1292(b), which motion the court denied on March 9, 1976. App. at 945a-47a. The instant appeal followed.*fn9 Appellants contend that the court's order is appealable under 28 U.S.C. § 1291 as a "collateral order," or, in the alternative, under 28 U.S.C. § 1292(a)(1) as an order denying injunctive relief. We disagree.
The district court's order is certainly not a "final decision" under 28 U.S.C. § 1291*fn10 in the ordinary sense that it finally determines all of the rights of the plaintiffs and the class against the defendants and terminates the litigation. Appellants assert, however, that the court's order is appealable under section 1291 by virtue of the "collateral order" doctrine enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949), and most recently reaffirmed in Eisen v. Carlisle & ...