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FARKAS v. ELLIS

January 10, 1992

THOMAS FARKAS, MICHAEL MAK, PETE MAK, THOMAS MEDORA, JOHN QUERIM, RAFAEL ROSADO and JOHN TOMA, Plaintiffs, against WILLIAM ELLIS, Defendant.


The opinion of the court was delivered by: WILLIAM C. CONNER

 CONNER D.J.:

 A class of private plaintiffs and the Equal Employment Opportunity Commission ("EEOC") brought two civil rights actions in 1973 against the Newspaper and Mail Deliverers' Union of New York and Vicinity ("NMDU" or "Union") and more than fifty news publishers and distributors within the Union's jurisdiction. Both suits charged that the Union, with the acquiescence of the publishers and distributors, had historically discriminated against minorities, and that the structure of the collective bargaining agreement, combined with nepotism and cronyism, had perpetuated the effects of past discrimination in violation of Title VII of the Civil Rights Act of 1964. Each lawsuit sought an affirmative action program designed to achieve for minorities the status they would have had in the newspaper delivery industry but for the alleged discriminatory practices.

 On September 19, 1974, then-District Judge Lawrence W. Pierce issued an opinion and order approving a settlement between the parties and incorporating the Settlement Agreement in a Consent Decree, familiarity with which is presumed. See Patterson v. Newspaper and Mail Deliverers' Union, 384 F. Supp. 585 (S.D.N.Y. 1974) aff'd, 514 F.2d 767 (2d Cir. 1975), cert. denied, 427 U.S. 911, 96 S. Ct. 3198, 49 L. Ed. 2d 12 (1976). The Consent Decree implements an affirmative action program which modifies the hiring procedures for newspaper deliverers under the industry-wide collective bargaining agreement. Under the Consent Decree, each employer maintains a work force of regular situation holders for its minimum delivery needs. To accommodate fluctuations in circulation, the publishers are permitted to supplement their work force with daily shapers.

 The daily shapers are divided into three groups with descending hiring priorities. Those shapers on the Group I list have first priority, after the regular situation holders, in order of their shop seniority. The next priority belongs to Group II shapers. Group II consists of all persons holding regular situations or Group I positions with other employers in the industry. Last in order of priority are the Group III shapers.

 The Consent Decree also established an Administrator, appointed by the Court, to implement the provisions of the Consent Decree and to supervise its performance. The Consent Decree authorizes the Administrator to hear claims concerning violations of the Decree. Appeals from his decisions are heard in this Court.

 BACKGROUND

 One of the plaintiffs, John Toma, is an individual whose rights were determined by the Administrator in Claim 186 and Claim 229. In September 1991, this Court affirmed the Determination in Claim 186. Toma was accorded an opportunity by the Administrator to present documents and argue for placement on the Group I list prior to the Administrator's revision of the Group I list in connection with his Determination of Claim 186 in March 1990. See Transcript of Hearing, dated January 17, 1991, at pp. 22-27; Answer at para. 6; Aff. of William Ellis, dated July 12, 1991, at para. 5. Prior to the Court's affirmance of Administrator Ellis' decision in Claim 255, Toma joined his claim with those of the Claim 255 claimants. See Patterson, 765 F. Supp. at 160 n.2.

 In the present action, plaintiffs seek the same relief they sought in Claim 255 -- to be placed on the Group I list of the Times. The Complaint names the Administrator as defendant and brings suit pursuant to the provisions of the Administrative Procedure Act (the "APA"), alleging violations of 5 U.S.C. §§ 702, 706(1), and 706(2)(A), (D), and (F). In August 1991, this Court denied plaintiffs' application for the recusal of Judge William C. Conner. At that time, the Court ordered plaintiffs to show cause why the Complaint should not be dismissed for want of subject matter jurisdiction.

 Plaintiffs subsequently filed an Amended Complaint in which they add the Times as a defendant and assert jurisdiction under 29 U.S.C. § 185. At a conference held on October 8, 1991, this Court indicated that it would deem that document a motion for leave to amend the Complaint pursuant to Fed. R. Civ. P. Rule 15(a), in view of the fact that an answer has already been filed in the instant action and the Complaint may not be amended without leave of the Court.

 The Court will address defendant's motion to dismiss the Complaint pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction as well as plaintiffs' motion to amend the Complaint pursuant to Fed. R. Civ. P. Rule 15(a) to add the Times as a party defendant.

 DISCUSSION

 Plaintiffs originally brought this action against the Administrator pursuant to the provisions of the APA which provide for judicial review of agency action. In a prior Opinion and Order dated August 2, 1991, this Court held that these statutes were inapplicable to the present case and ordered plaintiffs to show cause why this suit should not be dismissed for want of subject matter jurisdiction. A hearing ...


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