Opinion · Court of Appeals for the Fourth Circuit

Carson v. American Brands, Inc.

Carson v. Am. Brands, Inc., 654 F.2d 300 (4th Cir. 1981)

Type
Opinion
Court
Court of Appeals for the Fourth Circuit
Jurisdiction
Federal
Date
1981-07-17
Topic
bankruptcy

PER CURIAM: This case is before the in banc* court again following remand by the Supreme Court for further proceedings in conformity with the opinion of the Court. See Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981). In our previous decision, Carson v. American Brands, Inc., 606 F.2d 420 (4 Cir. 1979) (in banc), a majority of the court in a split decision held that an order of the district court refusing to enter a consent decree in a class action under Title VII asserting claims of racial discrimination on behalf of black employees and black applicants for employment at a tobacco plant was not appealable.

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CARSON v. AMERICAN BRANDS, INC.,654 F.2d 300(4th Cir. 1981)
FRANK L. CARSON, LAWRENCE HATCHER, STUART E. MINES, APPELLANTS, v. AMERICAN
BRANDS, INC., T/A THE AMERICAN TOBACCO COMPANY; LOCAL 182, TOBACCO WORKERS
INTERNATIONAL; TOBACCO WORKERS INTERNATIONAL UNION, APPELLEES.
No. 77-2260.
United States Court of Appeals, Fourth Circuit.
Submitted May 28, 1981.
Decided July 17, 1981.
Page 301
P. Peter Sherwood, New York City, John W. Scott, Jr., Fredericksburg, Va., Henry L. Marsh, III, William H. Bass, III and Randall G. Johnson, Richmond, Va., for appellants.

Henry T. Wickham, D. Eugene Webb, Jr., Jay J. Levit, Levit Mann, Richmond, Va., for appellees.
Appeal from the United States District Court for the Eastern District of Virginia.
Before WINTER, Chief Judge, and BUTZNER, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE and ERVIN, Circuit Judges, sitting in banc.
PER CURIAM:
[1] This case is before the in bancfn*court again following remand by the Supreme Court for further proceedings in conformity with the opinion of the Court.See Carson v. American Brands,Inc.,450 U.S. 79,101 S.Ct. 993,67 L.Ed.2d 59(1981).

[2] In our previous decision,Carson v. American Brands, Inc.,606 F.2d 420(4 Cir. 1979) (in banc), a majority of the court in a split decision held that an order of the district court refusing to enter a consent decree in a class action under Title VII asserting claims of racial discrimination on behalf of black employees and black applicants for employment at a tobacco plant was not appealable. The dissenting members of the court expressed the view that the order was appealable and that, on the merits, the district court,446 F. Supp. 780, abused its discretion in declining to approve and enter the consent decree. The dissenting members of the court would have directed the district court to enter the proposed decree, modified only with respect to notice and possible further proceedings regarding members of Class 2 (black persons who sought but did not obtain seasonal employment after September 9, 1972).See606 F.2d at 431n. 3 and 432.

[3] The Supreme Court held that the order of the district court refusing to enter the consent decree was an order refusing an injunction and was therefore appealable under28 U.S.C. § 1292(a)(1). Its mandate reversed our decision to the contrary and remanded the case for further proceedings in conformity with what it had decided. The case is thus before us on the merits.

[4] A majority of the present in banc court is of the view that the district court should be directed to enter the consent decree with the modification to which we have referred for the reasons set forth in the dissenting opinion of Judge Winter in which Chief Judge Haynsworth and Judge Butzner joined in the previous appeal.See606 F.2d 424-32. Accordingly the judgment of the district court is reversed and the case is remanded for further proceedings in conformity therewith.

[5] REVERSED AND REMANDED.
[6] DONALD RUSSELL, WIDENER, and JAMES DICKSON PHILLIPS, Circuit Judges, dissenting:
[7] To say thatWeber[United Steelworkers of America v. Weber,443 U.S. 193,99 S.Ct. 2721,61 L.Ed.2d 480] will be of importance in employment cases is, of course, an understatement.

[8] In view of the considerable consequences of the application ofWeber,we think in this, probably the first application by this court ofWeberon its merits,Webershould be applied first to the facts of this case by the district court. Thus, we would remand the case to the district court to reconsider the proposed settlement agreement in the light ofWeber.

[9] We believe thatFlinn v. FMC Corporation,528 F.2d 1169(4th Cir. 1975), clearly indicates that the district court should first consider the fairness of settlements in agreed dispositions requiring court approval.Page 944
  1. When originally heard and decided, the in banc court consisted of Haynsworth, Chief Judge and Winter, Butzner, Russell, Widener, Hall and Phillips, Circuit Judges. By the time that the case was before us again, Chief Judge Haynsworth had taken senior status and Circuit Judges Murnaghan, Sprouse and Ervin had been appointed to the Court. ↩