Opinion
90 Civ. 5722 (CSH)
December 22, 2002
MEMORANDUM OPINION AND ORDER
Eugene Clarke is a rank-and-file member of Local Union No. 608, United Brotherhood of Carpenters and Joiners of America, AFL-CIO ("Local 608"), a constituent local union of the District Council of New York City and Vicinity of the United Brotherhood of Carpenters and Joiners of America (the "District Council"). He moves to enforce a consent decree (the "Consent Decree") this Court entered on March 4, 1994 in this civil RICO action commenced by the government against the District Council and certain of its former officers, and to impose monetary sanctions upon Michael J. Forde, the Executive Secretary-Treasurer ("EST") of the District Council, for violating the Consent Decree.
Specifically, Clarke contends on this motion that Forde violated the job referral rules incorporated by reference in the Consent Decree. Clarke's contentions focus upon the manner in which shop stewards were appointed for each job site. The District Council and Forde resist Clarke's motion. They contend initially that Clarke lacks standing to bring the motion. Alternatively, the District Council and Forde argue that Clarke's motion is barred by his failure to exhaust available internal union remedies, and that in any event it lacks merit.
I. BACKGROUND
The captioned case and related cases have generated numerous opinions by this Court and the Second Circuit. Familiarity with them all is assumed. I recite the factual background only to the extent necessary to describe the nature of clarke's motion and the Court's resolution of the questions to which it gives rise.
The government, represented by the United States Attorney for this district, commenced this action against the District Council and certain of its officers, alleging that the Council and its constituent local unions of carpenters, including Local 608, had increasingly come under the corrupting influence of organized crime. A principal area of concern had to do with the manner in which jobs were assigned to union members. It is a fact of life in the construction trades that on any given day, there may very well be more skilled union artisans, such as carpenters, looking for work than there are jobs for them to perform. The government contended that organized crime had corrupted the job referral system, as well as other aspects of union activity. Eventually a bench trial began, but after several weeks the litigation was terminated by entry of the Consent Decree.
Reflecting the government's concern with the manner in which individual carpenters were referred to jobs, the Consent Decree provided in ¶ 5:
Within thirty (30) days after the entry of this Consent Decree, each of the constituent locals shall adopt the job referral rules and procedures attached hereto as Exhibit A and incorporated herein (the "job referral rules"). The constituent locals shall make all job referrals in accordance with the job referral rules and shall comply with the job referral rules in all respects.
Exhibit A to the Consent Decree contains eight numbered job referral rules, some with several lettered sub-parts. The rules were fashioned by the parties to the Consent Decree after negotiation. They were intended to be binding upon and adhered to by each one of the District Council's constituent local unions.
The Consent Decree also provided in ¶ 3 for the appointment of Kenneth Conboy, a former Judge of this Court then in private practice, to act as the Investigations and Review Officer ("IRO") for the purpose of implementing the provisions of the Consent Decree. The IRO's "general authority," as set forth in ¶ 4(a) of the Consent Decree, provided that the IRO would inter alia "supervise implementation of the job referral rules" described in ¶ 5. IRO Conboy was required to submit periodic interim reports to the Court. His First Interim Report, dated October 4, 1994, states at 9 that the job referral rules "were intended to eliminate the corruption, favoritism and cronyism that existed under the old system." The Second Interim Report, dated March 13, 1995, added at 2 that "[e]ven more troublesome is the relationship of job patronage and active organized crime domination of the union."
As noted, the complaint underlying Clarke's motion is concerned with the appointment of shop stewards. While the job referral rules attached to the Consent Decree contained detailed provisions for the referral of individual union members to particular jobs, they did not specifically address the appointment of shop stewards at each job site. The collective bargaining agreements negotiated by the District Council with employers in 1996 provided that "[a] working Job Steward on each shift shall be appointed by the Union." The phrase "shop steward," as used throughout papers generated by this case, is synonymous with the phrase "working Job Steward" as used in the collective bargaining agreements. The shop steward's role is to submit weekly reports to the District Council listing all carpenters employed at a particular job site and the hours worked by each of them. These reports are intended to insure compliance with the "50-50 rule" contained in the collective bargaining agreements and with the employers' obligation in those agreements to contribute to the District Council's fringe benefit funds at the specified rate for each hour worked.
The collective bargaining agreements provided: "The first Carpenter on the jobsite shall be referred by the Union. The second Carpenter shall be the Employer's selection. The balance shall be 50% from the Union and 50% from the Employer."
In furtherance of his general authority to supervise implementation of the job referral rules, IRO Conboy issued his "Decision No. 1," dated March 30, 1994, which dealt with a number of questions that had arisen "concerning the administration and interpretation of the Job Referral Rules." Decision at 1. One of those questions related to the appointment of shop stewards. On that score, the IRO's Decision stated at § E, p. 5 in pertinent part:
Shop stewards must be selected from the individuals referred from the out-of-work list to a given job. If there is no individual among those referred who is qualified to serve as a steward, the next available individual on the out-of-work list in order of priority who has either served as a steward, or is qualified to serve as a steward, shall be referred to the job as steward.
Thus the IRO, in his Decision No. 1, filled in a gap the original job referral rules had left with respect to the appointment of shop stewards. This action on the IRO's part was entirely consistent with the supervisory responsibility and authority conferred upon him by the Consent Decree. No one contends otherwise. On the contrary, the District Council's By-Laws at § 16 amplify and build upon the IRO's decision by providing that:
All stewards will be appointed by the Executive Secretary-Treasurer in a fair and equitable manner consistent with job referral rules and the Consent Decree. . . . Stewards shall be appointed according to their skills and position on the out-of-work list. . . No worker shall be referred from the out-of-work list out-of-turn to fill a steward position."
In addition, § 8 of the By-Laws provides that the Executive Committee of the District Council
shall regularly review the District Council's referral records to determine that job referrals are being conducted fairly and properly in accordance with the job referral rules and shall report their findings to the Delegates.
In his First Interim Report, IRO Conboy said of the job referral rules generally that "[i]t is improper under the rules for any officer to refer work to a union member as a way of rewarding the member for his political support or other union activity." Id. at 9. It is the clear intent and purpose of the Consent Decree and the job referral rules incorporated therein, as amplified by IRO Conboy's Decision No. 1, that it is equally improper for any officer to appoint a union member as a shop steward "as a way of rewarding the member for his political support." In the context of the District Council and its affairs, "political support" refers inter alia to the election of District Council officers, which are usually vigorously contested. Clarke's motion to enforce the Consent Decree and hold Forde in contempt for violating it proceeds on the theory that Forde "had improperly appointed his political supporters as shop stewards." Main Brief at 1.
in the most recent election, held on December 6 and 7, 2002, Forde was re-elected EST of the District Council, an election result that has not yet been certified.
Clarke sent a letter dated July 24, 2001 addressed to twelve members of the Executive Committee of the District Council (the "July 24 letter") stating that the previous month "I made a request to review various referral hall records, after I learned that I had been bypassed for certain steward referrals." July 24 letter at 1. Clarke recited that on June 19, 2001, he had met with Scott Danielson, the District Council's out-of-work list ("OWL") supervisor, and Gary Rothman, an attorney for the District Council. At Clarke's request, Danielson and Rothman furnished him with "copies of certain records" and promised to send him additional records. Id. On the basis of the documents given to him in June, Clarke wrote in his July 24 letter, "I have preliminarily concluded that the rules have been improperly manipulated to favor certain individuals." Id. Clarke then discussed in detail a total of 21 shop steward assignments received by seven members of Local 608 from 1998 through 2001. The main thrust of Clarke's complaint was that these individuals were improperly permitted to add skills to their names as they appeared on the OWL, thereby enhancing their eligibility for a steward's assignment. Clarke discerned in these shop steward referrals
The Executive Committee of the District Council is comprised of an elected representative from each of the Council's ten constituent local unions, and the Council's three executive officers: the EST, the President, and the Vice-President. Clarke sent his July 24 letter to all Executive Committee members except Forde, the EST.
The computerized out-of-work list is the methodology devised by the District Council to facilitate compliance with the job referral rules.
According to Danielson, the OWL supervisor, "any member has the right to define the kind of work they are willing to accept and the geographical jurisdiction in which they are willing to be assigned jobs. They do this by calling the OWL office and setting, or changing the skills in their personal portfolio. There are nearly 300 such skill categories to choose from." Danielson Declaration dated January 28, 2002 at ¶ 9.
a clear pattern that skills profiles were changed to conform to requests for stewards, which means that the above individuals were colluding with the Local 608 business agents who relayed the contractors' requests. The business agents therefore rigged the system to favor political supporters like Corrigan.Id. at 6.
"Corrigan" is a reference to John Corrigan, the first carpenter Clarke discussed in his July 24 letter to the District Council Executive Committee. The second was John Hearty. Clarke said in the July 24 letter at 1:
I selected the carpenters listed below because they have strong ties to Local 608's present and former leadership. For example, John Corrigan and John Hearty ran the fund-raiser in late March 2001 to collect contributions for the legal defense of Mike Forde . . . .
The District Council Executive Committee responded to Clarke's July 24 letter by making further documents available to him and creating an "Investigation Committee" comprised of Rothman and Danielson. The Investigation Committee sent an interim report to Forde dated October 17, 2001. In addition Rothman, as counsel for the District Council, sent a letter dated October 31, 2001 to AUSA Marla Alhadeff, to inform the United States Attorney "about the District Council Executive Committee's investigation of the matters brought to its attention in Eugene Clark's [sic] `complaint,' dated July 24, 2001." Id. at 1. It was entirely appropriate for the District Council to keep the United States Attorney advised, since under the Consent Decree that office maintains a watching brief over the affairs of the District Council, its officers, and the constituent locals. For example, ¶ 12 of the Consent Decree provides that "the District Council shall inform the Government and the Investigations and Review Officer of any changes in rules or procedures adopted or implemented pursuant to paragraph . . . 5 . . . of this Consent Decree." ¶ 5 of the Consent Decree, as noted supra, deals with job referral rules.
By this time IRO Conboy's term had run out and he was no longer in office. At an earlier time the international union imposed a statutory trusteeship upon the District Council and the constituent locals, but that trusteeship terminated with the 1999 election of a restructured District Council's officers and delegates, including the election of Forde as EST.
On December 27, 2001, before the District Council's Investigation Committee forwarded its final report on Clarke's complaint to the Executive Committee, Clarke filed the present motion.
The Rothman/Danielson Investigation Committee submitted its final report on the Clarke complaint to the Executive Committee of the District Council in January 2002. That report concluded that the operation of the computerized OWL system "is reliable — the computer system accurately matches members with the skills requested by the party submitting the request and dispatches the next qualified person." Final Report at 19. As for the seven individuals discussed by Clarke in his complaint, the Final Report stated that the Investigation Committee had reviewed the pertinent documents and concluded "that the referrals were proper under the approved system . . . . Each of the referrals investigated was found to be proper in the sense that the skills were matched with the request and the steward who was dispatched to the job in question was the lowest on the list who possessed the requested skills." Id. at 20-21.
Notwithstanding those favorable conclusions, the Final Report recommended revisions in the job referral rules and procedures "to eliminate even the appearance of impropriety in referrals." Final Report at 21. This undertaking led to discussions between counsel for the District Council and the office of the United States Attorney. The government, while taking no position with respect to Clarke's pending motion in this Court, negotiated with the District Council a draft Stipulation and Order which was submitted to the Court for review. As stated in the letter to the Court dated October 21, 2002, from AUSAs Edward Scarvalone and Lisa Zornberg, the Stipulation "provides For the amendment of the job referral rules as they pertain to the referral of shop stewards." Government Letter at 1. In addition, and "[i]n response to the concerns raised by the Government regarding the adequacy and thoroughness of the District Council's internal investigation of Clarke's allegations, the Stipulation further provides for the appointment of Walter Mack, Esq., . . . to serve as Independent Investigator" who will "be in charge of investigating allegations of corruption or wrongdoing involving the operation of the job referral system." Id. at 1-2. Mr. Mack, now in private practice, previously held a senior position in the office of the United States Attorney. The Court has endorsed the Stipulation and Order and its terms are now in effect.
The Stipulation provides at ¶ 14: "The Government will not join in the Clarke Motion. However, the entry of this Stipulation and Order is without prejudice to the Clarke Motion."
In his motion papers, Clarke dismisses the District Council Investigation Committee's final report as one "which whitewashes the charges against Forde." Reply Brief at 1. The Notice of Motion prays that the Court enter an order
pursuant to the Consent Decree in this action, imposing upon Michael Forde, the District Council's Executive Secretary-Treasurer, a sanction of $50,000.00 for violating the Consent Decree's referral rules, and for such other relief as is just and proper, including but not limited to, reimbursing (1) the District Council for the cost of its investigation of Forde's violations and (2) Mr. Clarke for attorneys' fees and costs incurred in bringing this motion.
The Main Brief for Clarke, who is represented by counsel, contends that Forde committed ten violations of the job referral rules relating to shop stewards in connection with the appointments of six individual carpenters. The $50,000 sanction against Forde sought by Clarke in this motion is based upon the figure of $5,000 for each of the asserted ten violations.
The carpenters referred to in Clarke's motion papers are named Maudsley, Corrigan, Hearty, Harrington, Maxwell, and McCluskey. See Main Brief at 9-17. Clarke's July 24, 2001 letter to the District Council Executive Committee referred to these six carpenters and a seventh, one Rawald, whose name does not appear in the motion papers.
The District Council and Forde oppose Clarke's motion. They are both represented by the law firm of which Mr. Rothman is a partner.
II. DISCUSSION
A. Standing
In opposing Clarke's motion, the District Council and Forde contend principally that Clarke lacks standing to make it because he is not a party to this action.
An inquiry into Clarke's standing to make this motion is not only appropriate, it is constitutionally mandated. In Valley Forge Christian College v. Americans United for the Separation of Church and State, Inc., 454 U.S. 464 (1982), the Supreme Court held:
Article III of the Constitution limits the "judicial power" of the United States to the resolution of "cases" and "controversies." The constitutional power of the federal courts cannot be defined, and indeed has no substance, without reference to the necessity to adjudge the legal rights of litigants in actual controversies . . . .
As an incident to the elaboration of this bedrock requirement, this Court has always required that a litigant have "standing" to challenge the action sought to be adjudicated in the lawsuit. The term "standing" subsumes a blend of constitutional requirements and prudential considerations . . . .
[A]t an irreducible minimum, Art. III requires the party who invokes the court's authority to show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant, and that the injury fairly can be traced to the challenged action and is likely to be redressed by a favorable decision.454 U.S. at 471-72 (citations and some internal quotation marks omitted).
In the case at bar, if Clarke was seeking by his motion to be compensated for an economic loss he suffered as the result of Forde's asserted violations of the Consent Decree and the job referral rules, he would clearly have standing to make the claim, notwithstanding the fact that he was not originally a party to the underlying action. The Second Circuit's decision in Berger v. Heckler, 771 F.2d 1556 (2d Cir. 1985), upon which Clarke places a justifiable reliance and the District Council and Forde attempt unsuccessfully to distinguish, is dispositive on the point.
In Berger the named plaintiff, Manny Berger, commenced the action in 1976 against the Federal Secretary of Health and Human Services to challenge the termination of his SSI benefits. The SSI program, administered by the Secretary through the Social Security Administration, was designed to assure a minimum level of income for certain people over age 65 or the blind or disabled. The governing statute made SSI benefits available to, inter alia, aliens "lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law." 771 F.2d at 1559. Berger asserted a right to SSI benefits under the "color of law" provision. The Secretary had rejected his claim. In 1977 Berger filed an amended complaint in the nature of a class action on behalf of all similarly situated aliens, id., although as it turned out "no class was certified," id. at 1564. Later in 1977, one Emma Mena moved to intervene in the action to assert a claim comparable to Berger's.
In June 1978 the Secretary, Berger and Mena prepared and the district court signed a consent decree which, after resolving Berger's and Mena's claims in their favor, went on to spell out an agreement between the parties "regarding the interpretation of the `color of law' language" of the statute which would inure to the benefit of all aliens meeting certain criteria, and obligated the Secretary to "take all steps necessary to ensure that this order is carried out by the employees of the Social Security Administration," 771 F.2d at 1559-60. In July 1982, Berger and several additional intervenors (not previously parties to the action) moved for an order adjudging the Secretary in contempt for failure to comply with the consent decree. The district court entered an order and amended consent decree favorable to the claims of these newly arrived intervenors (or "plaintiffs," see id. at 1560), who also asserted a right to SSI benefits.
The Second Circuit's opinion in Berger deals with a number of issues, but the ruling instructive in the case at bar is its rejection of the Secretary's jurisdictional contention that the district court's amended decree impermissibly "requires enforcement of the decree with respect to persons who are not parties to the action." 771 F.2d at 1562. This is a "standing" argument, indistinguishable in principle from the argument the District Council and Forde make in opposing Clarke's motion.
The Berger court derived discerned two sources of jurisdiction for the district court to consider the claims of the recently arrived intervenors. First, the court held that the Secretary's promise of future conduct "was made to Berger, as promisee":
Berger could therefore challenge noncompliance with [the consent decree] and sue to enforce the promise it contained. Moreover, to the extent that he was suing on behalf of third parties benefitted by the decree, he was supported by state contract law, since in New York a promisee for the benefit of third parties may enforce the promise on behalf of the third parties.771 F.2d at 1564 (citations omitted). Moreover, in the Berger court's view
[t]he absence of class certification is not problematic in this case, and does not affect the enforceability of the Amendment or of the decree itself. . . . In this case, it is undisputed that the Secretary agreed, in signing the decree, to confer certain benefits on nonparties. It is clear to this court that, in so doing, she also agreed to the enforcement of the decree in favor of nonparties. Therefore . . . certification of a class was unnecessary.Id. at 1566-67. These considerations apply to Clarke because, as a member of Local 608, a District Council constituent local union, he was an intended beneficiary of the reforms (including job referral rules) that the government sought to obtain in the Consent Decree.
Second, and equally germane to the case at bar, the Second Circuit held in Berger that Rule 71, Fed.R.Civ.P., conferred upon the most recently arrived intervenor/plaintiffs "the right to enforce the decree." 771 F.2d at 1565. Rule 71 provides in pertinent part: "When an order is made in favor of a person who is not a party to the action, he may enforce obedience to the order by the same process as if he were a party . . . "The intervenors in Berger were entitled to invoke Rule 71, the Second Circuit reasoned, because
[t]he consent decree is conceded to provide benefits to non-parties. By its terms, the decree provides for a particular construction of the SSI eligibility provision, which construction benefits innumerable applicants who will be entitled to SSI pursuant to the decree. As a practical matter, of course, it would not have been possible to name these past, present and future applicants in the decree.Id. at 1565.
In the case at bar, Clarke relies upon Rule 71, and there is much surface appeal to his doing so. The Consent Decree in the action commenced by the government and the job referral rules incorporated therein were intended to provide benefits for union carpenters, past, present and future, who could not have been named when the decree was entered.
However, as a leading text points out, "Rule 71 does nothing to disturb the requirement of standing to sue." 13 Moore's Federal Practice (3d ed. 1997) at 71-5 (footnote omitted). Because that is so, the Second Circuit took pains in Berger to point out that "[t]he three intervenor-participants in the contempt motion were seeking or had been denied benefits" under the SSI statute and, like the named plaintiff, were attempting to obtain them, 771 F.2d at 1565 n. 12; it followed that "[t]here is no contention that the Rule 71 intervenors here do not have standing," id. at 1565 n. 13. The intervenor/plaintiffs in Berger, asserting their individual claims for SSI benefits, clearly satisfied the rule declared by the Supreme Court in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153 (1970), that a party has standing only if the interest he seeks to vindicate is "arguably within the zone of interests to be protected or regulated by the . . . constitutional guarantee in question." It requires no analysis to demonstrate that Clarke's personal interests as a union carpenter fall within the "zone of interests" sought to be protected by the Consent Decree.
But Clarke's motion does not seek to vindicate an interest personal to him. Rather, he asks the Court to impose $50,000 in sanctions upon Forde for asserted past misconduct in shop steward referrals, without specifying in his papers to whom the sanctions should be paid. I think this gives rise to a question of substance with respect to Clarke's standing to seek that particular remedy. The parties do not discuss that aspect of the case in their briefs, but standing is jurisdictional in nature, and the Court is not only entitled but required to raise the question sua sponte. The question is whether the principles declared in the cited cases give Clarke standing when he does not ask the Court to remedy a personal deprivation or claim, as did the Berger intervenor/plaintiffs, but rather to require Forde to pay $50,000 in sanctions to a recipient Clarke does not identify in his motion papers. Does Clarke contemplate that Forde pay $50,000 in sanctions to him? That is a somewhat startling suggestion; Clarke neither advances nor disclaims it in his papers. Does Clarke contemplate that Forde would pay the $50,000 in sanctions to the District Council? That seems more likely; but the District Council and Forde, represented by the same counsel, contend that Forde should not pay any sanctions, to the District Council or anyone else. It does not necessarily follow from Berger and comparable cases that Clarke has standing to claim that Forde should pay sanctions to an entity that contests Forde's liability to pay them and impliedly proclaims its unwillingness to receive them.
The motion papers reveal that in January 1998, a settlement agreement was entered into by the international union, the District Council, and Forde which resolved internal union charges that Forde had violated the international union's constitution and the District Council's by-laws and working rules. The fines Forde was required to pay presumably wound up in the coffers of the District Council.
In this regard the case is somewhat reminiscent of a shareholder's derivative action under Rule 23.1, Fed.R.Civ.P., which confers upon shareholders of a corporation the standing to enforce a right of the corporation which the latter has failed to enforce. That is a particularized and highly conditional standing which would may not furnish a useful analogy to the case at bar.
The fact that Clarke's motion does not seek redress of any personal injury or loss may bring his situation within the rationale of Valley Forge Christian College, 454 U.S. 464, to which I referred at the beginning of this discussion. In Valley Forge the Court held that respondents, an organization and individuals dedicated to the separation of church and State, did not have standing, either as taxpayers or citizens, to challenge under the Establishment Clause the conveyance without payment of a surplus Federal Government building to a church-related college. The Court stressed that the respondents did not claim any personal injury, a circumstance that militated against standing:
Although respondents claim that the Constitution has been violated, they claim nothing else. They fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees. That is not an injury sufficient to confer standing under Art. III, even though the disagreement is phrased in constitutional terms. It is evident that respondents are firmly committed to the constitutional principle of separation of church and State, but standing is not measured by the intensity of the litigant's interest or the fervor of his advocacy. That concrete adverseness which sharpens the presentation of issues is the anticipated consequence of proceedings commenced by one who has been injured in fact; it is not a permissible substitute for the showing of injury itself.454 U.S. at 486-87 (emphasis in original) (citation and internal quotation marks omitted). In the case at bar, it is evident that Clarke is firmly committed to the principle of fair job and shop steward referrals, but quaere whether, in the absence of any claim that he should be compensated for a personal loss (in contrast to the SSI benefit-deprived intervenor/plaintiffs in Berger) he has standing to ask this Court to impose monetary sanctions on Forde.
Because I raise this aspect of the standing analysis sua sponte and it has not been previously briefed by counsel, I will require a further submission of briefs. B
B. The Alternative Contentions of the District Council and Forde
In addition to challenging Clarke's standing to bring this motion, the District Council and Forde contend that Clarke should have first exhausted internal union remedies; and that in any event his motion lacks merit. The latter contention is based upon the description in Danielson's declaration of the steps the District Council has taken to police the job referral rules. Reference is also made to the District Council Investigation Committee's final report, which exonerated Forde of rules violations in respect of the particular shop steward referrals Clarke complained of in his July 24 letter.
The attack the District Council and Forde make upon the merits of Clarke's motion is the functional equivalent of a motion for summary judgment under Rule 56; and it is apparent from the present record and the opposing submissions of Clarke, the District Council and Forde that there are sufficient genuine issues as to material facts to preclude a summary disposition. Accordingly I decline to consider the merits of Clarke's claims on this record. If the motion goes forward in this Court, there must be an evidentiary hearing, presumably preceded by discovery.
I defer consideration of Clarke's asserted failure to exhaust his union remedies, because if Clarke lacks standing to make this motion in Court, that additional question does not arise.
III. CONCLUSION
Counsel for Clarke, the District Council, and Forde are directed to serve and file simultaneously, on or before January 17, 2003, additional briefs further addressing the question of standing in the light of the discussion in this opinion.
I also direct the government to file and serve a brief addressing that question within the same time frame. I understand that the government takes no position with respect to the merits of Clarke's claims, and would not urge it to do so. However, the government has a continuing responsibility for the proper implementation of the Consent Decree and the job referral rules. That being so, it is appropriate, and will undoubtedly be of assistance, for the Court to require the government to address the question of the standing of an individual union member such as Clarke to file a motion such as this.
It is SO ORDERED.