reopening; five of these date from 1984 to 1991, and 76 from 1992 to 1994. Plaintiffs further assert that defendants have rejected reopening requests in 17 cases since 1994; plaintiffs have requested mediation, but in most of those cases, defendants have failed to supply the relevant case files that plaintiffs need to prepare their arguments for mediation. They request an order compelling defendants to respond to reopening requests and to provide plaintiffs' counsel with relevant case files for cases in which mediation has been requested.
The 1994 Order is clear on defendants' duty to respond to requests for reopening: "there is no reason why defendants should not respond to plaintiffs' requests for reopening of cases within 60 days." 1994 Order, 865 F. Supp. at 1027. Defendants are hereby ordered to comply with this provision.
As to plaintiffs' right to see complete case files, paragraphs 42 and 43 of the Consent Judgment provide that plaintiffs' counsel may inspect complete files of any case on reasonable notice to the Appeal Board. Plaintiffs cannot be expected to prepare for mediation on the strength of the checklists alone; they are entitled to inspect the entire file. Defendants are ordered to comply with paragraphs 42-43 of the Consent Judgment.
Finally, defendants must respond to plaintiffs' requests for mediation within a reasonable time if paragraph 54 of the Consent Judgment is to have any meaning at all. They are ordered to do so.
(e) Disparity in 1994 E checklist count
Plaintiffs assert that defendants have failed to provide plaintiffs' counsel with all E checklists prepared by the Appeal Board in 1994. According to plaintiffs, an affidavit by Timothy J. Coughlin, Executive Director of the Appeal Board, dated March 21, 1995, submitted in Dunn v. New York State Dep't of Labor, states that the Appeal Board prepared approximately 4,500 E checklists every six months. However, plaintiffs received only 6,464 in all of 1994.
Paragraph 41 of the Consent Judgment unambiguously allows plaintiffs' counsel access to defendants' master file of all E Checklists once each month. The court therefore grants plaintiffs' requested relief and hereby orders defendants to make all 1994 E checklists available to plaintiffs' counsel and to provide an explanation for the apparent disparity in numbers between Coughlin's affidavit and the number of E Checklists plaintiffs have seen from 1994.
(f) Modification of the CSD manual
The Community Services Division ("CSD") III Manual ("Manual") is a compilation of the procedures of the Unemployment Insurance Division. Plaintiffs, supplied with the CSD Manual as a "new procedure" in accordance with paragraph 53 of the Consent Judgment, found "deficiencies" and informed defendants of them. For example, plaintiffs assert that the Manual does not comply with the requirement that local offices must send claimants an employer objection within five days of its receipt by the office. See Consent J. P 4 (claimants shall be sent an employer's objection, if any, within five business days of its receipt by the local office). Plaintiffs allege that defendants have not responded to plaintiffs' correspondence and have failed to provided them with documents referred to in the Manual that are necessary for plaintiffs' monitoring tasks.
Plaintiffs also state that in accordance with the court's instructions given at a December 5, 1994 conference, they informed defendants of certain local office procedures coming within the ambit of paragraph 9 of the Consent Judgment. Under that provision, the Appeal Board shall not sustain a decision denying benefits when the unfavorable decision stems from a failure to follow the procedures of the Unemployment Insurance Division. Plaintiffs assert that defendants have not responded.
Plaintiffs seek a finding of contempt regarding defendants' violation of paragraph 4 of the Consent Judgment and an order requiring immediate compliance. They further seek an order requiring defendants to promptly provide documents requested, to instruct Administrative Law Judges ("ALJs") and Appeal Board members on additional procedures required, to revise procedures inconsistent with the Consent Judgment, and to inform all Unemployment Insurance Division staff of the corrections.
The court orders defendants to comply forthwith with paragraph 4 of the Consent Judgment. Defendants are further ordered to respond to plaintiffs' complaints concerning the CSD Manual and alleged deficiencies in local office procedures. The parties are to proceed with any differences in their positions on the Manual and the local office procedures as directed by the Consent Judgment dispute resolution mechanisms. The court declines to find defendants in contempt at this time; as before, however, defendants are on notice that future failures to respect the procedures outlined in the 1994 Order and the Consent Judgment will be addressed with more severity.
(g) Continued violations of Paragraph 53
The 1994 Order found that defendants occasionally closed cases rather than adjourning them when claimants had shown good cause for an adjournment. 865 F. Supp. at 1025. The court held that this policy violated the notification and consultation provisions of Consent Judgment P 53 and ordered defendants to comply. Id. Plaintiffs now assert that defendants persist in their practice of issuing default decision against claimants who have requested an adjournment, and have not provided them with a statement of this policy in compliance with paragraph 53 and the 1994 Order. They point to Exhibits 13 and 14 to their motion as examples of default judgments issued in cases in which an adjournment was requested and appropriate. Plaintiffs also assert that defendants have deleted important portions of the Claimant Handbook without providing notice to plaintiffs as required by paragraph 53 of the Consent Judgment.
Defendants are ordered to submit a concise statement to the court prior to September 25, 1996, indicating (a) whether they have complied with paragraph 53 and the 1994 Order concerning their adjournment policy and if so, in what manner; (b) an explanation for the default judgments issued in Exhibits 13 and 14 to plaintiffs' present motion; (c) whether they have deleted portions of the Claimant Handbook and if so, which portions; and (d) whether they notified plaintiffs of the deletions and if not, why not. The court reserves judgment on this part of plaintiffs' motion until this information is received.
(h) Representative sample of Appeal Board case files for monitoring
According to plaintiffs, the Appeal Board processes backlogged cases in Albany and current cases in Brooklyn. Of the cases sent to plaintiffs for review, they report that 75% are from Brooklyn, although those cases comprise only 45% of the total of appeal cases to be decided in 1995. They request an order requiring that files selected for review be chosen on a random basis from current and backlog cases in proportion to the total in each category.
Plaintiffs offer no grounds for their request and the court can discern no foundation in the Consent Judgment for such a demand. This portion of the motion is denied.
(i) Computerized monitoring and tracking system
In 1992, plaintiffs sought an order requiring defendants to establish a computer-based monitoring system. The court rejected their request, stating that
by necessity, the Consent Decree represented a compromise, an expression of mutual assent given the relative bargaining strengths of the two sides, and not a wish-list for all that one or the other side would like. See Armour & Co., 402 U.S. at 681, 91 S. Ct. at 1757. Plaintiffs negotiated for and obtained an internal monitoring system that provided for the opportunity to review up to 600 case files per year, and they have failed to persuade the court that the system in place is so deficient or that circumstances have changed such that modification of the Consent Decree is warranted.
1994 Order, 865 F. Supp. at 1020-21 (citation omitted). Plaintiffs now renew their request, arguing that circumstances have changed significantly since that time: the Consent Judgment violation rate has increased dramatically, from 28.53% in 1991-92 to 43.97% in 1994 to 51.19% in the first half of 1995.
Plaintiffs contend that computerization of the E checklists would allow the Appeal Board to identify the substantive areas in which and the ALJs for whom errors are concentrated, so that training can be targeted.
Plaintiffs seek an order modifying the Consent Judgment to (a) establish a maximum violation rate for ALJs; (b) direct defendants to implement a computer-based monitoring system; and (c) require defendants to provide plaintiffs' counsel, on a monthly basis, with reports derived from the data entered into the computer-based monitoring system. Alternatively, plaintiffs seek an order that defendants provide them with a statistically significant sample per ALJ per year of case files and checklists (including the names of the hearing ALJ and the appeal ALJ), to enable effective monitoring.
Although the court agrees that the rate of Consent Judgment violations is indeed disturbing, particularly since violations seems to be on the rise, these numbers alone do not at this point warrant a modification or enlargement of the monitoring system established through negotiations and bargained-for concessions by the parties. The primary benefit of the computerized monitoring system--and of the alternative proposal as well--appears to be the ability to monitor the performance of individual ALJs. The court is not presently persuaded that the Consent Judgment requires such scrutiny. The matter will be taken up at the September 25, 1996 conference; both parties should be prepared to discuss the reasons for the high rate of violations and possible means for ameliorating the situation consistent with the Consent Judgment.
(j) Violation of Consent Judgment P 50
Plaintiffs' counsel reports that five new ALJs told him during their training that they had not been given the court's 1994 Order and were not aware of its terms. Pursuant to Consent Judgment P 50, all ALJs must be given copies of court orders. While the court will not make a finding of contempt at this time, plaintiffs' motion for an order compelling immediate compliance with P 50 is granted.
(k) Special Master
The court rejected plaintiffs' previous request for a Special Master. 1994 Order, 865 F. Supp. at 1034. Plaintiffs argue that defendants' uncooperativeness, inaction, and unresponsiveness now warrant such a measure. Plaintiffs contend that defendants have been consistently unwilling to discuss or address plaintiffs' concerns; a Special Master would save the court from being constantly called in to address them. For example, plaintiffs have made 17 demands for mediation as a result of defendants' denial of requests for reopening; mediation has historically not solved disputes in this case, and absent a Special Master, these matters will have to be brought before the court.
Plaintiffs' motion for an order modifying the Consent Judgment to appoint a Special Master is denied as too drastic a solution at the present time. The court will proceed on the assumption that defendants will respond promptly to the concerns outlined in this opinion and will in the future fully comply with their clearly defined responsibilities. Should this assumption prove unwarranted, the court will reconsider more comprehensive relief.
Plaintiffs' motion is granted in part, denied in part, and held in partial abeyance pending a conference to be held on September 25, 1996, at 11:30 and possible further briefing and factual submissions by the parties. The Attorney General's office, counsel for defendants, is instructed to certify by September 25, 1996, that they have complied with each the court's orders contained herein.
IT IS SO ORDERED.
Dated: New York, New York
August 21, 1996
ROBERT L. CARTER