The opinion of the court was delivered by: TENNEY
Plaintiff Equal Employment Opportunity Commission ("EEOC") has applied herein for an order pursuant to Rule 65 of the Federal Rules of Civil Procedure to enjoin and restrain defendant Local 15 of the International Union of Operating Engineers ("Local 15") "from harassing, intimidating, demoting, suspending, discharging or in any other way discriminating against any person because he has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or hearing authorized by Title VII" of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e et seq.
This present controversy has its roots in a pattern-and-practice-of-discrimination suit brought by the EEOC and tried before this Court three years ago. This Court entered its decision on May 6, 1976, EEOC v. Local 14, Int'l Union of Operating Engineers, 415 F. Supp. 1155 (S.D.N.Y. 1976), and its remedial order on September 1, 1976. Defendants, including Local 15, appealed from the aforementioned decision and remedial order, and, on December 15, 1976, the United States Court of Appeals for the Second Circuit entered an order whereby the District Court was stayed in the enforcement of the decree and all other proceedings pending determination of the appeal. The court of appeals issued its decision on March 21, 1977. EEOC v. Local 14, Int'l Union of Operating Engineers, 553 F.2d 251 (2d Cir. 1977). Timely petitions for rehearing were filed and denied, and the case remanded to this Court on August 24, 1977.
On May 12, 1977 the EEOC brought the instant motion before this Court. After expedited discovery, trial of the issue was held on June 6-7, 1977. Basically, two questions are presented to the Court at this time:
(1) Does the Court have jurisdiction over this controversy?
(2) If so, does the evidence submitted to the Court present a case of retaliation against witnesses sufficient to permit the entry of preliminary relief against defendant Local 15?
It seems clear that this Court has jurisdiction over the present controversy on three separate grounds: (a) by reason of the Court's inherent power to preserve its process and to prevent and rectify punishment of those who appeared before it; (b) by reason of the jurisdiction the Court retains, untouched by the court of appeals stay, to prevent a party from taking steps which would prejudice and hinder later proceedings in the case; and (c) by virtue of its independent jurisdiction under Sections 706(f)(2)-(3) of Title VII, 42 U.S.C. §§ 2000e-5(f)(2)-(3).
With respect to the first ground, it has been recognized from the very first days of our country that
"[the] very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of the government is to afford him that protection. . . ." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L. Ed. 60 (1803).
Part of this duty of the government to provide the protection of law is that litigants and witnesses who appear before federal courts do so secure in the knowledge that they cannot be harassed, intimidated, punished or otherwise suffer harm because they availed themselves of the judicial system. See Bell v. Hood, 327 U.S. 678, 684, 90 L. Ed. 939, 66 S. Ct. 773 (1946); United States v. Farrar, 414 F.2d 936, 938 (5th Cir. 1969).
The insult that such retaliation against litigants or witnesses would produce goes beyond the injuries suffered by the individuals themselves: the integrity of the court's process and proceedings suffers the inevitable and intolerable destruction that accompanies any retaliation against the witnesses.
Witnesses who lose work opportunities, suffer harassment, and are otherwise retaliated against because of their testimony, are going to be much less likely to testify in a subsequent proceeding (which is very probable in this case) if such retaliation goes unchecked. This would affect both the Court -- hindering its ability to hear the full story -- and the EEOC -- hindering it in prosecuting the case.
The inherent power of a federal district court to prevent or remedy actions designed to or having the effect of deterring the use of the courts, or punishing one for such use, has been recognized and incorporated into the court's contempt power and its power under the All Writs Statute. 28 U.S.C. § 1651; Pennsylvania v. Local 542, Int'l Union of Operating Engineers, 347 F. Supp. 268, 286 (E.D. Pa. 1972).
In the second place, the district court retains jurisdiction to preserve the status quo and protect its proceedings in all germane matters. A pending appeal, and similarly a stay, only deprives a district court of jurisdiction over those matters at issue in the appeal or stay. Here we are concerned with events transpiring subsequent to the trial of this case some three years ago, namely retaliation against witnesses who testified for the EEOC at that trial. Nor is it necessary to establish the underlying claim of general discrimination to prevail upon the retaliation issue. Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1005 (5th Cir. 1969); EEOC v. Kallir, Philips, Ross, Inc., 401 F. Supp. 66, 70 (S.D.N.Y. 1975), aff'd on opinion below, 559 F.2d 1203 (2d Cir. 1977). In Pettway, the court of appeals found ...