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TROUT v. BALL

February 13, 1989

YVONNE G. TROUT, et al., Plaintiffs,
v.
WILLIAM L. BALL, III, et al., Defendants



The opinion of the court was delivered by: GREENE

 HAROLD H. GREEN, UNITED STATES DISTRICT JUDGE

 This case, in which discrimination against a class of women working for the Navy was established many years ago, is a textbook example of how litigation tactics are sometimes employed by the government to delay the grant of relief to aggrieved citizens for a truly scandalous period of time.

 I

 Background

 The case was filed in 1973, sixteen years ago. As such, it is by far the oldest case on this Court's calendar. Most of the delay between then and now has been due to the government's determination not to permit any decision or order, no matter how clear or obviously appropriate, to go unchallenged. *fn1"

 The first relief order, following a decision establishing the entitlement of between 60 and 70 female employees of the Navy potentially involved to compensation for the sex discrimination against them, was issued on October 20, 1981. Over seven years have elapsed since that waystation on the litigation path, and defendants have successfully managed to avoid paying one dime to the successful class members during that period. While appeals to the Court of Appeals and the Supreme Court are certainly legitimate endeavors, the government has gone well beyond the normal appellate procedures and has frustrated even those courts with its dilatory tactics. See note 1, supra. The government has similarly frustrated the consummation of ancillary proceedings. *fn2"

 The consequence of these governmental actions has been that a substantial number of female employees of the Navy, who notwithstanding the government's determined resistance, have again and again been found to have been seriously discriminated against on account of their gender, have been afforded no relief. At a time when even the most backward private employers have accepted the principle that discrimination against women is both legally invalid and morally reprehensible, the Departments of Justice and of the Navy keep engaging in the most transparent dilatory maneuvers to avoid or postpone rectifying what has been done to this class of women. In this Opinion, the Court considers the latest means devised by these defendants for frustrating a final resolution of this lawsuit.

 On October 12 and November 28, 1988, the Court issued two Orders referring individual claims with respect to backpay arising out of the judgment in favor of the class to a special master. Defendants have now filed a motion for reconsideration. They challenge the Orders on three grounds: (1) reference to a special master was inappropriate and the case should have been referred instead to a U.S. Magistrate; (2) the Navy cannot be held responsible for the special master's fees under principles of sovereign immunity; and (3) the $ 200 hourly rate for the special master's services set by the Court in its November 28 Order is too high. Because all these arguments are without merit, the motion will be denied.

 II

 Reference To Special Master

 The Court is of course aware of the provision in Rule 53(b) that reference to a special master should be the exception and not the rule. However, the current proceedings in this case is plainly of the kind that require a reference to a special master.

 As an initial matter, the case requires a difficult computation of damages, which is one instance in which Rule 53 specifically recognizes the possible need for special masters. See Rule 53(b). In addition, the comments to Rule 53 note that "masters may prove useful when some special expertise is desired . . . ."

 The first task of the special master in this case is to determine which statistical methodology is most appropriate for determining the backpay of the individual members of the class. Computation of backpay with an adjustment for lost promotions under either of the possibly applicable methodologies is a difficult and time-consuming process. To ensure that the best methodology is chosen and is properly applied, the Court appointed a special master with extensive experience in the area ...


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