Washington Post

After 23 Years, Workers Wait for Justice Appeals Court Chastises D.C. Judge for Delays in Class-Action Lawsuit Against Construction Union

By Bill Miller
Washington Post Staff Writer

April 12, 1999

When a group of black ironworkers filed a racial discrimination lawsuit against a Washington union, seeking back pay for job opportunities they claimed they had lost, they vowed to stay the course no matter how long it took. They had no idea that the battle still would be plodding along after more than 23 years. "We were young men when this started," said Ronald Tucker, one of the leading plaintiffs in the case. He's now 65 and retired. "I feel like we've really been mistreated. It's a disgrace how long this case has been going on." Fellow ironworker Albert Berger put it like this: "Twenty-three years, man, it's too long! Everybody feels like that. We need a time limit here."

Even though Tucker, Berger and their colleagues won the class-action lawsuit in 1985, many haven't collected a dime. The case has been mired in a dispute over how much money the plaintiffs should get. Last month, the U.S. Court of Appeals for the D.C. Circuit blamed the trial judge for the holdup and issued a sharply worded rebuke of U.S. District Judge John Garrett Penn. A three-judge panel expressed hope that the case was in its "penultimate chapter." "We have strained hard -- perhaps too hard -- to decide as much of this case as we could," wrote Judge Laurence H. Silberman, saying that Penn alone must wrap the matter up. "The district court's interminable delays are inexcusable and have caused a great hardship to the parties, particularly the class."

Silberman went on to declare, in unusually harsh language, that he feared sending the case back to Penn was tantamount to "dropping the case into a well." Silberman suggested that Penn's colleagues on the federal bench should have pushed him to resolve the case years ago or stripped the matter from him, saying tartly, "It is not our responsibility to supervise district judges."

Penn, who was the court's chief judge from 1992 to 1997, did not return a message seeking a comment. An aide said Penn doesn't discuss his cases.

Gerald Ford was president, George Allen was coaching the Redskins and "One Flew Over the Cuckoo's Nest" was at the movies when attorneys for eight black construction workers filed a class-action suit against the International Association of Bridge, Structural and Ornamental Iron Workers and its Washington-based Local 201. The plaintiffs were known as rodmen, workers who handle and position steel rods for reinforcing concrete and other building materials. They contended they were denied union membership because of racial discrimination, arguing that the entry standards were crafted in a way unfair to blacks.

The union's rejection, they said, cost them thousands of dollars in work because Local 201 offered coveted employment opportunities to its members. Tucker, of Northwest Washington, said he was raising a family of five children when the case began in October 1975. Now he has 15 grandchildren. Some friends who joined in the lawsuit have died. Even though Tucker later got into the union and found work, he said, the litigation remained a constant stress. "You don't ever forget anything like this as long as you live," Tucker said. "Judge Penn really didn't do his job as a judge."

The case was first assigned to Judge John Sirica, now deceased. Penn inherited it soon after he joined the bench in 1979. Newly appointed judges routinely receive cases from the court's senior judges. He has had it so long that he is now on senior status. Lawyers on both sides said they have found Penn to be extremely bright and intelligent but prone to long, unexplainable delays.

Although he accepted few new cases during the time he was chief judge, Penn has long been known as a judge with many overdue rulings, which some have attributed to lengthy bouts of writer's block. This case is one of a dozen civil cases that have been pending on his docket for more than three years, about twice the average number among his colleagues. Judges must report to the administrative office of the courts if they have cases for which rulings have been delayed six months or more. According to the last report, Penn had more than twice as many overdue rulings as his fellow judges.

At first, Penn kept the ironworkers' case on track by convening a trial in 1981 to determine whether the union and Local 201 were liable for damages. The trial didn't exactly go off in an expeditious manner -- in the middle of it, Penn took a two-month break. Then he waited 3 1/2 years before issuing his opinion.

The judge determined that the union had engaged in racial discrimination. But the text of his ruling caught the parties by surprise. He adopted, nearly verbatim, the 85 pages of "findings of fact" that were provided to him much earlier by the plaintiffs' attorneys and parroted them in the decision.

The union appealed. In April 1988, the appellate court upheld Penn's ruling but expressed serious concerns about the way he reached it. The judges said they strongly disapproved of Penn's "wholesale adoption" of the black workers' court papers and complained that even the typographical errors in the two documents were the same. They said that Penn's "inexplicable failure to reason independently" left them with a "Herculean task" of reviewing everything.

The appellate decision didn't end the litigation. Penn now was to decide who should get damages and how much money each individual should get. In 1989, he asked a magistrate judge to help him sort out those issues. The magistrate judge, Patrick J. Attridge, convened a series of mini-trials that occupied much of his calendar in 1990, but he didn't issue a report to Penn until April 1994. Attorneys for the black ironworkers twice asked the appellate court to order Penn to speed things up, but the appellate judges declined to intervene.

It wasn't until January 1997 that Penn issued his opinion on damages. Both sides were unhappy with the formulas he used and filed appeals. That led to last month's appellate decision, which ordered Penn to make new calculations. The appellate ruling largely favors the union by scaling back the amount of back pay and interest the workers can receive under the new calculations. Albert Berger was one of the few winners. Years ago, Penn ruled that he was ineligible to obtain damages. The appellate panel said that he can collect.

Despite the many delays, lawyers involved in the case said progress has been made toward resolving many issues. At one point, 215 people were seeking damages, represented by lawyers from more than 30 firms, many of whom were recruited by the Washington Lawyers' Committee for Civil Rights. Since then, more than 130 people have accepted settlements from the union, mostly of $25,000 or less. Dozens more were ruled ineligible to collect by the court.

About 30 people, including Tucker and Berger, are still fighting.

Tucker said he could have settled the case years ago for $52,000, but he wanted much more. "That doesn't cover anything," he said, remembering the hurt of rejection. "They should have to pay out the nose for what they had done." He said he takes pride in carrying the legal fight to the end, although he doesn't begrudge those friends who settled. "Lots of the fellas had car notes, house loans, children in college," he said. "What are you gonna do?"

Like Tucker, Berger, 57, said he's in it for good. "Settle for chicken feed? No way," he said. But he said that Penn should try no more cases until he puts the ironworkers' saga to rest. However, Penn is now in the midst of another marathon trial, this one involving an attempt by the estate of former president Richard M. Nixon to win control of his White House tapes. That lawsuit was filed in 1980, and the trial before the judge is approaching its 70th day.

Berger's brother, Jessie Berger, was awarded more than $68,000 by Penn, plus interest, for the work he lost during the early 1970s. He never collected because of the continuing appeals. Weary of waiting, he said, "It gets hard sometimes, but I gotta keep doing what I have to do. Even if it takes more years, I've been going 23. There's no stopping now." "I don't get it," Jessie Berger said, adding that the judge "knows what he's doing. He just won't do it. He's getting old, too."

John F. Dienelt, an attorney representing the class, said he, too, can't explain the long stretches that went without action. "I don't want to point fingers at anybody. I just want to get this over with," he said. "These guys haven't gotten a nickel in almost 25 years, and they deserve what they can get. Delays in justice and trial are hard to explain, but try explaining 23 years."

The union's chief lawyer, Victor J. Van Bourg, echoed that view. "This is the longest case I've ever been involved with," said Van Bourg, who has been practicing law for 43 years. "It damages everybody. If you don't conclude a case, it co-opts your life. It's hanging over everybody's head. It's hanging over the union treasury. It's not right. Neither party is to blame for the delays. It's all at the doorstep of the court. "The world has changed," Van Bourg added. "The unions have changed. The workers have changed. The demographics have changed. That's why the delay has caused so much damage to both sides."

© Copyright 1999 The Washington Post Company

Return to Laborers.org

(c) All original work copyright Laborers.org 1998. All rights reserved..