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December 16, 1976

Association Of Court Reporters Of Superior Court, et al., Plaintiffs
Superior Court For the District Of Columbia, et al., Defendants

Parker, D.J.

The opinion of the court was delivered by: PARKER


This case involves a labor dispute in the local District of Columbia courts. An unincorporated association of court reporters, its officers and various individual reporters have brought this suit as a class action against their employers, the Superior Court of the District of Columbia, the Chief Judge of that court and of the District of Columbia Court of Appeals, the Joint Committee on Judicial Administration (Joint Committee) *fn1" and certain management personnel of the courts. Generally, plaintiffs complain of overwork, inadequate compensation for services rendered and on-the-job harassment. Jurisdiction is alleged pursuant to 28 USC § 1331 (federal question), § 1337 (Acts of Congress regulating commerce) and § 1361 (mandamus); the Fair Labor Standards Act, (FLSA or Act), 29 USC § 216(b); and, the First and Fifth Amendments. Pendent jurisdiction is asserted over issues arising from claims based upon local law.

 The plaintiffs seek declaratory and injunctive relief, money damages and attorneys' fees and in their unverified complaint charge: Count I, that the plaintiffs are not compensated at overtime rates as required by the provisions of the Fair Labor Standards Act; Count II, that the defendants, in requiring plaintiffs to produce transcripts of proceedings for judges without charge, violate their Fifth and Fourteenth Amendment rights; Count III, that First Amendment rights are violated in that they are intimidated, harassed and thwarted in their attempts to associate and to air their grievances; Count IV, that the use and threat of contempt power against plaintiffs by certain defendants is violative of their Fifth and Fourteenth Amendment rights and Count V, that the defendants, in collecting and releasing confidential financial information relating to the plaintiffs' earnings have invaded their rights to privacy.

 Plaintiffs seek partial summary judgment on Counts I and II. The defendants move to dismiss the entire complaint on the grounds that the Court lacks subject matter jurisdiction; that the complaint fails to state a claim upon which relief can be granted; that this Court's intervention in the controversy is inappropriate; and, that plaintiffs have failed to exhaust their administrative remedies. Alternatively, they seek summary judgment.

 The Court has considered the supporting memoranda, affidavits, exhibits, the argument of counsel and concludes that except for Count III, charging First Amendment infringements, the defendants are entitled to judgment dismissing the remaining counts of the complaint.

 The Background of the Litigation

 Court reporters are full-time employees of the court system, appointed by and subject to the supervision of the Executive Officer and the judges for whom they perform services. *fn2" They are generally assigned to a branch of the court for specific time periods. Once assigned they are responsible to that court and their work schedule parallels and is subject to that court's schedule. They are required to perform according to the needs of the court and they are frequently subject to demanding and exacting assignments without advance notice and which cannot always be anticipated with certainty. Upon entering service they are given orientation on court and court reporter rules, *fn3" overtime, attendance and leave policies, assignment procedures and other matters relevant to their responsibilities.

 They are governed by the provisions of the Leave Act and as full-time employees are employed for a basic workweek of forty hours, 5 USC § 6101(a)(1). Authorized work in excess of forty hours a week or eight hours a day is subject to overtime compensation rates pursuant to § 5542 of the Act. The rates may not exceed 1 and 1/2 times the hourly rate of the basic pay for Step 1 of Level 10 of the General Schedule. The current maximum overtime rate under the Leave Act is less than that afforded under the Fair Labor Standards Act.

 Superior Court reporters are hired at various annual salary levels ranging from $13,482 for a trainee to $16,255 for the highly experienced. They receive additional income from the sale of transcripts. The 1975 net average income from such sales was $5,265. Net incomes from that source ranged as high as $14,014 and $12,562. The combined average of reporters' incomes makes theirs the highest of any group of employees in that court or the District of Columbia Court of Appeals, with the exception of middle or upper management positions. *fn4"

 Of major concern to the plaintiffs is the fact that fees may not be charged for transcripts produced at the request of a judge. Such transcripts, however, totalled less than 3 percent of all transcript pages produced in 1975. *fn5" The unverified complaint charges, upon information and belief, that some judges have made these transcripts available to persons who otherwise would be charged for them.

 The Joint Committee on Judicial Administration requires each reporter to submit an annual statement of income from the sale of transcripts. These reports are submitted on a confidential basis, public release only authorized on the order of that Committee. Plaintiffs allege that, nonetheless, certain of these data appeared in a recently published newspaper article.

 The reporters claim that they have attempted to air and to seek redress of their various grievances but have been generally frustrated and denied opportunity to do so by their immediate supervisors and the Executive Officer. On March 25, 1976, a revised grievances and appeals procedure was adopted by the Joint Committee for the court system which superseded prior procedures. *fn6"

 Plaintiffs do not claim that they have utilized the recently implemented grievance procedures and that they have been found inadequate, lacking in fairness or biased against them. Nor do they challenge the manner in which the procedures were promulgated. Indeed, reporter Marilyn Berg alleges in her affidavit that an appeal from her discharge in May 1976, pursued under the grievance machinery is currently under consideration. She points to no experience under the procedures which have deterred her efforts. Reporter Norma J. Houghton, president of the plaintiffs' association, details in her affidavit many problems associated with their working conditions, various complaints registered with her supervisors and contacts and conferences with the Superior Court Chief Judge in an attempt to resolve problems which have arisen over the years. However, the affidavit points to no effort of a reporter to pursue established grievance procedures which was fruitless or aborted. Edwin K. Putman generalizes in his affidavit that "[his] . . . efforts to work out differences with the court . . . have been rebuffed at every turn." He does refer to a May 1976 grievance under the new procedure when he sought redress from a supervisor's harassment. The grievance was considered and responded to by another supervisor who stated, ". . . you have exercised ...

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