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BARCIA v. SITKIN

August 21, 1996

NIDIA BARCIA, et al., Plaintiffs, against LOUIS SITKIN, et al., Defendants. MUNICIPAL LABOR COMMITTEE, et al., Plaintiffs, -against- LOUIS SITKIN, et al., Defendants, -and- DENNIS C. VACCO, as Attorney General of the State of New York, and the STATE OF NEW YORK, Respondents.


The opinion of the court was delivered by: CARTER

 CARTER, District Judge

 A consent judgment and decree ("Consent Judgment") was approved by the court on July 29, 1983, in settlement of consolidated class action lawsuits concerning the practices and procedures of the New York State Unemployment Insurance Appeal Board ("Appeal Board"). Presently before the court is plaintiffs' motion for contempt, enforcement, and modification of the Consent Judgment.

 I.

 This protracted litigation consists of several consolidated class action suits challenging the practices and procedures of the Appeal Board, a body established by the state of New York to determine eligibility for unemployment benefits. Plaintiffs, claimants who have been or will be subjected to adverse determinations by the Appeal Board, asserted violations of the Social Security Act, 42 U.S.C. § 503(a); the equal protection and due process clauses of the Fourteenth Amendment; Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000(d); and the Federal Unemployment Tax Act, 26 U.S.C. § 3304(a)(6)(A)(i). The history of this case has been extensively detailed in opinions reported at 1995 WL 527696, Unempl. Ins. Rep. at 22,139 (S.D.N.Y. Sept. 7, 1995) (Carter, J.); 865 F. Supp. 1015 (S.D.N.Y. 1994) (Carter, J.); 683 F. Supp. 353 (S.D.N.Y. 1988) (Carter, J.); 1983 WL 44294, Unempl. Ins. Rep. at 21,712 (S.D.N.Y. Aug. 1, 1983) (Carter, J.); 89 F.R.D. 382 (S.D.N.Y. 1981) (Carter, J.); and in unpublished opinions dated May 9, 1996, and September 14, 1983. Familiarity with these opinions is assumed.

 In 1983, the parties entered into the Consent Judgment in settlement of this litigation; it was approved by the court on July 29, 1983. In 1992 and 1993, plaintiffs filed a series of contempt motions, alleging numerous violations of the Consent Judgment. The court granted the motions on many of the grounds put forth by plaintiffs. See Barcia v. Sitkin, 865 F. Supp. 1015 (S.D.N.Y. 1994) ("the 1994 Order"). The court stated that

 
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 obligations to implement in good faith what was agreed to." Hurley, 158 F.R.D. 22, 1993 WL 738455 at *10 . . . . 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.

 Id. at 1034.

 Plaintiffs now claim that defendants have failed to fulfill their obligations under the Consent Judgment and the 1994 Order. They move for sanctions, contempt, enforcement, modification, and a wide range of other relief.

 II.

 The court has the power to ensure compliance with its orders, including consent decrees. Berger v. Heckler, 771 F.2d 1556, 1569. Furthermore, "[a] defendant who has obtained the benefit of a consent decree--not the least of which is the termination of the litigation--cannot be permitted to ignore such affirmative obligations as were imposed by the decree." Id. at 1568. Thus, the court may issue orders to ensure that the decree is properly observed.

 However, consent decrees are not merely court orders; they have "a dual character, a 'hybrid nature' that reflects attributes of both a contract and a judicial decree." Kozlowski v. Coughlin, 871 F.2d 241, 245 (2d Cir. 1989) (quoting Local Number 93, Int'l Assoc. of Firefighters v. Cleveland, 478 U.S. 501, 519, 92 L. Ed. 2d 405, 106 S. Ct. 3063 (1986)). Because the decree is an agreement negotiated by the parties, in which each side makes concessions in order to gain advantages, the court must look to the decree itself, and not to the goals of the parties in negotiating it, in order to interpret its provisions. United States v. Armour & Co., 402 U.S. 673, 681, 682, 29 L. Ed. 2d 256, 91 S. Ct. 1752 (1971) ("the scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it"). Thus, "the court is not entitled to expand or contract the agreement of the parties as set forth in the consent decree." Berger, 771 F.2d at 1568. In Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 116 L. Ed. 2d 867, 112 S. Ct. 748 (1992), the United States Supreme Court held that a significant change in circumstances, either in the facts or in the law, is a prerequisite for the modification of a consent decree.

 III.

 The present motion goes unopposed, apparently through oversight on the part of defendants and not because of agreement with plaintiffs' allegations. See letter from Assistant Attorney General Thomas R. Sofield, April 18, 1996; letter from David Raff, April 23, 1996. Accordingly, the court has the power to grant the motion by default. Under Local Rule 3(b), the failure to file a legal memorandum along with opposition papers to a motion "may be deemed sufficient cause for the . . . granting of the motion by default." Rule 3(b) gives "notice to the world that the Court [can] grant [a] motion for failure to respond." Klein v. Williams, 144 F.R.D. 16, 18 (E.D.N.Y. 1992). The Rule has even more force when no opposition papers of any kind are filed.

 In light of the lengthy history of this bitterly contested litigation, however, the court is reluctant to grant in full the sweeping relief requested by plaintiffs in the absence of any response to their allegations. While defendants' failure to respond to the present motion perhaps constitutes an instance of the dilatoriness of which plaintiffs complain, the court will not exact a drastic price for their lapse, since the dereliction could well be the result of apparently wholesale staff turnover in the Attorney General's office.

 The 1994 Order finding defendants in contempt was comprehensive and explicit. It laid out specific obligations defendants had incurred by their entry into the Consent Judgment in settlement of this litigation. Those of plaintiffs' requests that are firmly grounded in the Consent Judgment and the 1994 Order and are based on reliable factual assertions are granted, as discussed below. Other requests, clearly outside the court's power or inconsistent with the guarantees of the Consent Judgment, are denied. Finally, certain of the matters plaintiff has brought to light on the present motion are too serious to be disposed of on the current record. Therefore, in accordance with the following discussion of each of plaintiffs' charges, the motion is granted in part, denied in part, and held in partial abeyance pending a conference and possible further briefing and factual submissions by the parties.

 (a) Use of unqualified interpreters

 Plaintiffs point out that a notice of hearing used in connection with the remand of class member cases to be reopened directs the claimant to obtain services of an interpreter. (See Notice of Hearing, attached to letter from Robert L. Becker to Roy A. Esnard, July 14, 1995, Ex. 3 to Decl. of Robert L. Becker, Aug. 10, 1995.) Furthermore, three affiants describe instances in which translators incapable of simultaneous translation were used, hearings were adjourned due to lack of translators, or volunteer translators were used.

 Plaintiffs argue that these instances constitute violations of the Consent Judgment and 1994 Order. They cite Consent J. PP 23-25 (Appeal Board to provide interpreter services when necessary) and the 1994 Order, 865 F. Supp. at 1031 ("translation must be simultaneous," every word of relevant conversations among the ALJ, the parties, and counsel must be translated, and defendants may not use volunteer translators) and n.21 ("any use of Notices ...


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