ON PETITION FOR A WRIT OF MANDAMUS/PROHIBITION AND/OR SUPERVISORY WRIT OF MANDAMUS/PROHIBITION FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
Seitz, Chief Judge, Rosenn, Circuit Judge, and Joseph S. Lord, III, District Judge.*fn*
Petitioner is a plaintiff in the district court who brought suit on behalf of herself and others similarly situated against her employer, Blue Cross of Western Pennsylvania, alleging that it was guilty of discriminatory employment practices in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The district judge, at defendant's request, entered an order on December 17, 1976 prohibiting certain communications between plaintiff or her attorney and certain third parties including potential members of the class and civil rights organizations. Plaintiff petitions this court pursuant to 28 U.S.C. § 1651(a) to issue a writ of mandamus directing the district court to vacate the December 17 order among others.*fn1
In Rodgers v. United States Steel Corp., 508 F.2d 152 (3d Cir.), cert. denied, 423 U.S. 832, 46 L. Ed. 2d 50, 96 S. Ct. 54 (1975), we invalidated Rule 34(d) of the Local Rules of the District Court for the Western District of Pennsylvania. That rule provides:
(d) No communication concerning such action shall be made in any way by any of the parties thereto, or by their counsel, with any potential or actual class member, who is not a formal party to the action, until such time as an order may be entered by the Court approving the communication.
Rule 34(d) could be applied, and in Rodgers was applied, to regulate communication on the part of a plaintiff seeking class action status or his attorney with third persons including potential members of the class at a time when class status had not been granted. Inquiring whether this rule was within the rulemaking authority granted by Fed. R. Civ. P. 83, we said that "we must take into account that the reason urged for applying the prohibition on communication is, in the words of the district court, the prevention of "'barratry.'" 508 F.2d at 163. We said that "there is no general grant of legislative authority to regulate the practice of law," and that "there is no federal common law offense of barratry." Concluding that it would be inconsistent with Fed. R. Civ. P. 23 to prohibit communications designed to encourage common participation in a lawsuit, we held that the Local Rule, at least to the extent that it permitted prohibition of such communication prior to the class determination, was outside of the authority granted under Fed. R. Civ. P. 83.
Since in the instant case the December 17 order postdated our decision in Rodgers, it was premised not on Local Rule 34(d), which Rodgers abrogated and which has not been amended subsequently, but on the omnibus sentence of Fed. R. Civ. P. 83 which provides that "in all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules." Thus, as in Rodgers, we must consider whether Rule 83 empowers the district court to prohibit communications at a time prior to the class determination.
The substance of the December 17, order is taken verbatim from 1 (pt. 2) J. Moore, Manual For Complex Litigation, Part II-App., Para. 1.41 at 189, Sample Pretrial Order No. 15, prepared by a committee under the aegis of the Federal Judicial Center. The order provides:
Ordered, that Plaintiff, Alma Coles, and her attorney, Clifford C. Cooper, Esquire, are prohibited directly or indirectly, orally or in writing, from contacting, soliciting or communicating with any potential or actual class member who is not a formal party to this suit, including but not limited to Diane Bey, Lois Broadus, Joyce Lang, Joyce Deas, Marlene Ramsey, Marcia Smith, June Pickett, Judy Harris, Barbara Davis, the local chapter of the NAACP, its officers, members and Board, the Direct Action Coalition, the National Organization of Women (N.O.W.) and Women in Urban Crises, for the purposes of, but not limited to:
a. Solicitation, directly or indirectly, of legal representation of potential and actual class members who are not formal parties to this action;
b. Solicitation of fees and expenses and agreements to pay fees and expenses from potential and actual class members who are not formal parties to the class action;
c. Solicitation by Plaintiff and her counsel to the class action of requests by class members to opt out of class actions under subparagraph (b)(3) of Rule 23, Federal Rules of Civil Procedure; and
d. Communications from counsel or party which may tend to misrepresent the status, purposes and effects of the class action, and of any actual or potential court orders therein, which may create impressions tending without cause, to reflect adversely on any ...