In 1983, then, plaintiffs recognized that the Consent Decree bound ALJs as well as Board staff members. They cannot argue differently at this juncture.
Nor may plaintiffs be heard to claim that the First Amendment rights of ALJs would be violated if they were not permitted to speak with plaintiffs' counsel informally. (Pl. Mem. Supp. Mot. Guidelines at 9.) If some ALJs wish to speak with plaintiffs' counsel alone but, as counsel intimates, fear reprisal if they do so, then those ALJs may retain counsel and maintain an action of their own.
Therefore, plaintiffs' motion with respect to interviewing ALJs is denied. With respect to the "other Board employees" alluded to by plaintiffs, the court denies plaintiffs' motion as well, but gives plaintiffs' leave to re-file if there are specific categories of employees plaintiffs desire to interview. However, plaintiffs should be aware that the court believes, at this point, that the actions of any Board employee (whom plaintiffs would be interested in speaking to) would be imputed to defendants for purposes of liability. Further, any consideration of a renewed motion made by plaintiffs would necessarily include the timeliness of plaintiffs' request, and plaintiffs would need to explain why such a motion was not made prior to the filing of plaintiff's contempt motion.
Based upon the foregoing, plaintiffs' motion for contempt is granted. Defendants have consistently ignored their obligations under the Consent Decree, and, in so doing, have sought to nullify the Decree unilaterally. Nevertheless, although such actions justify their imposition, sanctions will not be ordered "unless defendants persist in refusing to accept and adhere to their binding obligation to implement in good faith what was agreed to." Hurley, 1993 U.S. Dist. LEXIS 10381, at *27. This opinion has clarified defendants' obligations and indicated what actions must cease, and so good faith compliance with the Consent Decree may be forthcoming. If violations continue, however, sanctions will be imposed.
The court finds it necessary to extend the Monitoring Period for two years, at which time the parties shall be expected to comply with the provisions of Stipulation P 1(c) and discuss whether the Period should be extended again.
Further, the court denies plaintiffs' requests for the court to 1) appoint a Special Master, and 2) enjoin the Board from implementing or continuing the increase of any monthly productivity goal for Appeal ALJs and order the creation of a joint plaintiff-defendant study of the impact such an increase would have upon the Consent Decree. Particularly given that the court will not order defendants to institute the computerized monitoring system suggested by plaintiffs and that this Opinion should enhance the prospects for future compliance, the court does not see the need to appoint a Special Master at this time. The court will not interfere with productivity guidelines or order a joint study because the Board is free to manage its operations as it sees fits, so long as it complies with the Consent Decree. The extended Monitoring Period will enable plaintiffs to monitor defendants' performance in this, as well as other, areas.
Plaintiffs are entitled to reasonable attorney's fees, costs and disbursements incurred in connection with the preparation and filing of their contempt motion and three supplemental motions, and to any further relief as provided in this Opinion.
Finally, the papers submitted by the parties have been voluminous, covering hundreds of pages and alleging or denying violations of the Consent Decree that may have occurred as many as ten years ago. Yet, until the filing of plaintiffs' motion, neither party sought guidance from the court in respect of their rights or obligations under the Decree. As a result, it became the court's responsibility to review the parties' claims and counterclaims in order to make sense of roughly a decade's worth of activity. For either party again to wait so long before approaching the court when the parties disagree cannot be the most efficient way to proceed in the future, and the parties, therefore, should take a more active role in resolving issues as they arise. When the procedures outlined in the Consent Decree fail to generate mutually acceptable solutions to such issues, the parties should seek the court's guidance promptly. To initiate this procedure and to advise the court of the progress made on those issues that the Opinion directed should be resolved between themselves, the parties should schedule a conference with the court in no less than thirty, and no more than sixty, days.
IT IS SO ORDERED.
Dated: New York, New York
September 8, 1994
Robert L. Carter