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BACHMAN v. MILLER

November 3, 1982

DONALD L. BACHMAN, et al., Plaintiffs,
v.
JAMES C. MILLER, III, Defendant



The opinion of the court was delivered by: RICHEY

 BACKGROUND

 The case of Bachman v. Pertschuk1 resulted in the most far reaching affirmative action program ever developed for professional people. Before this Court, plaintiffs, minority professional persons, sought to vindicate themselves from perceived discrimination at the Federal Trade Commission ("FTC"). The matter was resolved in the form of a settlement agreement that was approved by the Court on April 25, 1978.

 The settlement agreement *fn2" provided for a broad plan to ensure against discrimination at the FTC in violation of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. The settlement also provided a post-settlement procedure for resolution of individual claims. Any class member who believed himself or herself to be the victim of discrimination could submit a claim to the Administrator of the settlement who was empowered to grant relief. If the claimant remained unsatisfied, she/he could appeal the Administrator's decision to a United States Magistrate. By consent of parties and in full compliance with the notice and comment requirement of Rule 23 of the Federal Rules of Civil Procedure the decision of the Magistrate was to be the final and unappealable disposition of the claim.

 This matter is before the Court on the motion of three members of the plaintiff class ("Movants") to vacate the portion of the settlement agreement making the Magistrate's decision unappealable. *fn3" Movants aver that this portion of the settlement should be vacated because it denies them their constitutional right to have their claims heard by an Article III Judge, which right they claim was neither waived nor waivable. Movants further allege that they did not receive adequate notice. They thus conclude that this Court has a "right and a duty" to vacate the no-appeals clause of the settlement under both the agreement itself and Fed. R. Civ. P. 60(b). The Court does not find merit in Movants' arguments and for the reasons set forth herein will deny Movants' Motion. *fn4"

 ANALYSIS

 Point I

 MOVANTS WERE NOT DENIED THE RIGHT TO AN ARTICLE III FORUM

 Movants first allege that they have an unwaivable right to have their claims of discrimination heard by an Article III Judge. They aver that the claims procedure established by the settlement agreement denies them this right because it makes the Magistrate's ruling final and unappealable. However, this argument misapprehends the purpose of the settlement agreement and the post-settlement claims process that it establishes.

  On July 29, 1976 this Court certified a class consisting of a large group of individuals who alleged that they had been discriminated against by the FTC. Movants were clearly within the class certified by this Court. Thus, any claim of discrimination that they had against the FTC was disposed of in the final resolution of this case. That final resolution came in the form of a settlement agreement. *fn5" See Gendron v. Shastina Properties Inc., 578 F.2d 1313, 1315 (9th Cir. 1979) (settlement constitutes final disposition of the case). From the time of the approval of the settlement by this Court, any claim of discrimination Movants may have had against the FTC was res judicata -- the settlement agreement itself finally disposed of Movant's claims.

 To ensure that each individual would have an opportunity to be heard, the settlement agreement provided an additional remedy -- an individual claims procedure. *fn6" Movants each filed a claim under this procedure with the Administrator of the settlement. Upon denial of their claims, they appealed to a United States Magistrate (as the stipulation provided) who also found that their claims lacked merit. When Movants brought their claims before the Administrator and then the Magistrate, their requests for relief arose under the settlement agreement. Their claims were no longer Title VII claims because the Movants' rights under Title VII were fully and finally resolved in the settlement agreement, entered into in an Article III forum and approved by an Article III Court. Thus, Movants' allegation that they have a right to have their additional individual claims heard by an Article III Judge must fail and it is unnecessary for the Court to consider whether such a right is waivable or was waived by Movants here. *fn7"

 POINT II

 ADEQUATE NOTICE WAS PROVIDED TO MOVANTS AS MEMBERS OF THE PLAINTIFF CLASS

 Movants also argue that they did not receive adequate notice and thus were not aware that when they submitted their claim to the Administrator they could not appeal to an Article III court. *fn8" Although this allegation appears in the context of Movants' argument that there could be no waiver of their rights to an Article III Judge because they were not under notice, the Court will address the issue in its own right because it goes to the heart of the question of whether Movants should properly be bound by the settlement agreement.

 Notice to the class was provided pursuant to Fed. R. Civ. P. 23(a). Rule 23(e) provides that notice of a proposed "compromise shall be given to all members of the class in such a manner as the Court directs." By its terms, Rule 23(e) vests broad discretion in the court to determine what constitutes adequate notice. See C. Wright & A. Miller, Federal Practice & Procedure § 1799 at 237. Moreover, publication has been widely recognized as a proper method of notice for class members who cannot reasonably be individually identified and/or located. *fn9" See e.g., Mendoza v. United States, 623 F.2d 1338, 1351 (9th Cir. 1980) cert. denied, 450 U.S. 912, 101 S. Ct. 1351, 67 L. Ed. 2d 336 (1981); Luevano v. Campbell, 93 F.R.D. 68 (D.D.C. 1981); Quigley v. Braniff Airways, Inc., 85 F.R.D. 74, 77 (N.D. Tex. 1979). Thus, the Court concludes that adequate notice was provided to the plaintiff class and the FTC did not "default in providing movants with proper notice," as movants allege.

 In light of the Court's rejection of Movants' claims, it is unnecessary to consider whether the Court has the power to grant Movants the relief they requested either under the terms of the settlement agreement or Fed. R. Civ. P. 60(b).

 An Order consistent with foregoing will be issued of even date herewith.

 ORDER

 For the reasons set forth in the Memorandum Opinion in the above-captioned case, issued of even date herewith, it is, by the Court, this 3rd day of November, 1982 hereby,

 ORDERED that Movants' Motion to Vacate Portion of Settlement Order is denied.

 [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 559 F. Supp.]

 [Appendix]

 STIPULATION AND ORDER

 Plaintiff Donald L. Bachman filed an administrative complaint of race discrimination on May 2, 1975, alleging, inter alia, that the Federal Trade Commission ("Commission") improperly failed to promote him to GS-15.

 On January 16, 1976, after more than 180 days had passed since the filing of his administrative complaint without the issuance of a final agency decision, plaintiff filed this action in the United States District Court challenging certain of the Commission's employment practices as racially discriminatory. The plaintiff sought to bring this action not only on behalf of himself but also as a class action on behalf of other similarly situated blacks and other minorities.

 The plaintiff alleges, inter alia, that the Commission's employment practices violate Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.

 On July 29, 1976, the Court conditionally certified a class of individuals described as (1) all blacks, GS-9 and above, presently employed as professionals and semi-professionals at the Federal Trade Commission; (2) all blacks who have applied for such positions and have been denied employment by reason of racial discrimination; and (3) all blacks who have been employed in such positions by the Commission in the past and have left or have been discharged by reason of racial discrimination.

 On September 26, 1977, the Court granted the motion of Doris L. Hollingsworth to intervene as a plaintiff.

 The parties have endeavored to resolve these matters through agreement and have concluded that it is in the best interests of all concerned to settle this action in the manner and on the terms set forth in this Stipulation.

 This Stipulation is entered into voluntarily by the Commission in order to reaffirm its policy of seeking out, employing, and promoting the best qualified individuals possible without regard to race, color, religion, national origin or sex and as an effort to respond to and rectify perceptions that minorities have not been well-represented in the Commission's professional workforce.

 Therefore, upon due consideration of the record herein, and upon the Stiuplation of the parties, before the taking of any testimony and without trial or adjudication of any issue of fact or law herein, the Court, being fully advised of the premises, concludes that it has jurisdiction over the ...


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