Unpublished Disposition, 937 F.2d 612 (9th Cir. 1989)

No. 89-55775.

United States Court of Appeals, Ninth Circuit.

Before FLETCHER and CANBY, Circuit Judges, and REED,^*  District Judge.

MEMORANDUM^** 

Four injured longshoreworkers appeal the district court's order denying their motion for an Order Re Contempt in the consent decree settling Golden v. Pacific Maritime Ass'n et al Civ. No. 80-4770-RMT (C.D. Cal.) . We affirm.

BACKGROUND

Appellants are injured longshoreworkers employed at the Los Angeles-Long Beach Port, and are, therefore, members of the intervening Stephans subclass in Golden, who claimed discrimination in the hiring of injured longshoreworkers and clerks at the Port. The consent decree provided for the establishment of a Joint Port Labor Relations Committee ("JPLRC"), one of the duties of which was to implement the consent decree's provisions for equitable assignment of injured longshoreworkers to light duty work. Paragraph 47 of the decree provides that "based on the physician's report, it shall specify types of work that the injured longshore person need not perform."

Pursuant to the consent decree, the JPLRC designated four types of jobs for which an injured longshoreworker may be determined to be eligible. The JPLRC later formulated the policy which is the subject of this appeal: "If a longshoreworker can perform clerks' work, he can perform signal work.... [and] a longshoreworker on the Casualty Board must accept front and signal jobs prior to accepting clerk jobs."

The impact of that rule was not felt for more than three years because the physician designated to determine the capability of injured longshoreworkers freely dispensed "no front/no signal" exemptions from that policy. After that practice was called into question, the JPLRC "revitalized" its initial policy, ruling that, since clerk work and signal work were physically equivalent, there could no longer be individually-based exemptions from the policy that injured longshoreworkers could not be dispatched to clerk work if they had refused signal work.

Appellants here are injured longshoreworkers who had been granted "no front/no signal" exemptions, and, as a result of this "revitalization" were deprived of the option of turning down signal work to take clerk work. They moved the district court for an order holding the JPLRC in contempt of the consent decree, arguing that clerk work is different from signal work, that enforcing the disputed policy contradicts their earlier medical certification exempting them from the policy, and that the policy was enforced in bad faith.

The district court held a six-day evidentiary hearing, and concluded that clerk and signal work were substantially similar, and that there was no evidence that the JPLRC had acted in bad faith. This appeal followed.

DISCUSSION

In the district court, appellants had the burden of establishing civil contempt by clear and convincing evidence. Vertex Distrib. Co. v. Falcon Foam Plastics, Inc., 689 F.2d 885, 889 (9th Cir. 1982). We review the district court's factual findings for clear error. Kemmis v. McGoldrick, 767 F.2d 594, 597 (9th Cir. 1985). Although questions of interpretation of the consent decree are reviewed de novo, where, as here, the district court has been closely involved in overseeing its formation and implementation, that de novo review is tempered by deference to the district court's interpretation. Vertex, 689 F.2d at 893.

The district court had subject matter jurisdiction to enter and enforce this consent decree in spite of the fact that section 503 of the Rehabilitation Act of 1973, the primary asserted basis of the Stephans class for intervention, does not provide a private cause of action. The Stephans class also asserted claims such as violation of 42 U.S.C. section 1985(3), third party beneficiary rights to a federal contract, and conspiracy to defraud the class of its rights under governing Collective Bargaining Agreements. These charges present federal questions providing subject matter jurisdiction in the district court to address these claims, or to enter and enforce a consent decree settling them.

2. Need to seek court approval to alter consent decree

Parties to this consent decree are not required to submit any dispute regarding the interpretation of the decree to the district court for approval prior to the implementation of a disputed rule. Paragraphs 16 and 30 of the decree are not to the contrary. Paragraph 16 requires that disputes which cannot be resolved by the parties "shall be submitted to the court." It does not require that they be submitted to the court before a disputed policy is implemented. Such an interpretation would be far too cumbersome. Paragraph 16 provides the exact procedure which has occurred here. Appellants dispute a policy of the JPLRC, and they have submitted that dispute to the court for resolution.

Paragraph 30 permits defendants (in the underlying Golden action) to move to set aside the decree, in whole or in part, if attempting to meet its goals is unduly burdensome on them. This paragraph applies, by its terms, only to defendants, who are not complaining here. Further, it does not require pre-implementation court approval of disputed policies.

3. Individual assessment v. categorical policy

After extensive inquiry the district court found that, in spite of variation within the two categories, clerk and signal work are substantially equivalent in terms of physical demands on workers. That finding is not clearly erroneous, and we affirm it.

The consent decree does not require that injured longshoreworkers be assigned to individual jobs within the categories of either signal or clerk work. Paragraph 47 of the consent decree uses expressly categorical language in providing that "the [JPLRC] ... shall specify the types of work that the longshoreworker need not perform." (emphasis added). That categorical provision accommodates the practical difficulties that would be involved in requiring dispatch to individual jobs within a particular type of work, where "signal and clerk work often changes during a single shift ... [and] each job type varies by employer and terminal." Findings of Fact and Conclusions of Law, 5/30/89, at 18, p 46.

The district court found that there was no evidence that JPLRC had implemented its policy in bad faith. That finding is not clearly erroneous. Appellants offer no independent evidence of bad faith, other than to repeat their legal and factual argument addressed above, asserting that they demonstrate bad faith as well as error. That is not enough to establish bad faith.

CONCLUSION

Appellants have clearly failed to establish by clear and convincing evidence that defendants are in contempt of the decree. The judgment of the district court denying the contempt motion of the Stephans appellants is

AFFIRMED.