Opinion
79 Civ. 5831 (RLC), 79 Civ. 5899 (RLC).
June 9, 2003.
David Raff, Robert L. Becker, Of Counsel, Raff Becker, LLP, New York, New York, Attorneys for Plaintiffs.
Roger H. Britan, Wendy J. Mellk, Of Counsel, Eliot Sptizer, Attorney General of the State of New York, New York, New York, Attorney for Defendants.
OPINION
This litigation concerns the practices and procedures of the New York State Unemployment Insurance Appeal Board (the "Board"). In settlement of consolidated class action lawsuits brought against the Board and the New York State Department of Labor ("defendants"), the parties to this action entered into a consent judgment with the approval of the court on July 29, 1983. The Consent Judgment, modified by stipulations of the parties (together, the "Consent Decree"), has remained in effect since that time, and over the years has been the subject of numerous motions for enforcement, contempt, and other relief by plaintiffs. Plaintiffs now, once again, move for enforcement and further relief. Defendants cross move to modify the Consent Decree to terminate monitoring of current cases by plaintiffs' counsel.
The Consent Decree's monitoring requirements were extended two years pursuant to the court's September 8, 1994 Order, and continued after that on an open-ended basis by consent of the parties. This monitoring by plaintiffs' counsel is financed by the State. (Defs.' Mem. at 44.).
BACKGROUND
Plaintiffs filed this suit in 1979, alleging that the Board had improperly denied them unemployment benefits and fair hearings, in violation 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). This is the latest in a string of disputes over how to best implement and enforce the now twenty-year old Consent Decree entered into by the parties. Background of the case has been set forth at length in several earlier opinions, with which familiarity is assumed.The immediate precursor to this controversy was the decision in Barcia v. Sitkin, 945 F. Supp. 539, 546 (S.D.N.Y. 1996) (Carter, J.), in which the court noted, among other things, the Board's "disturbing" rate of Consent Decree violations, but declined to enlarge or modify the monitoring process at that time. Instead, on September 27, 1996, the court called the parties in for a conference during which it reiterated its dismay at the "extraordinarily high" violation rate conceded by the Board. Rather than impose a solution by judicial fiat, the court instructed the parties to sit down and work out a mutually acceptable response to the concerns raised by plaintiffs. As a result, the Board prepared a detailed plan, implemented in 1996 and subsequently revised in 1999, intended to ameliorate these problems. The parties also negotiated a series of detailed Stipulations and Orders entered between February 18, 1997, and July 12, 2001. Now the parties are once again at an impasse — and over some of the same issues that were points of contention at the 1996 conference.
Before going through the points of contention, it is important to state that, finally, after years of skirting its obligations, the Board appears to be making a sincere attempt to come to terms with its responsibilities. In recent years efforts have been made toward achieving the main goal of the Consent Decree: to provide all claimants with fair and impartial hearings that conform with due process of law.
For example, after the court's 1994 Order and negotiations between the parties, the Board revised its checklists to reflect the "may have affected the outcome" standard in determining whether a checklist violation requires a remedy. It agreed to guidelines for remedial measures to be taken where violation of a checklist item may have adversely affected the rights of a party, and has included the new guidelines in the Board's annual ALJ training conference. (Defs.' Mem. at 17-18; Checklist and Guidelines Stip.)
A principal requirement of the Consent Decree is the use of checklists, which enumerate the procedural rights to which claimants are entitled during benefit hearings and appeals pursuant to the terms of the Decree. When a claimant appeals an adverse determination, the appeal ALJ must mark on the appropriate checklist any procedural violations found in the record, and then make a recommendation as to whether a remedy is necessary to cure the violation. If no remedy is required, the appeal ALJ is required to explain why the violation does not necessitate a remedy.
To apply this revised standard on a retroactive basis, the Board also agreed to re-review all cases from 1990-1994, and conduct a limited review of cases decided from 1995-1997. (Defs.' Mem. at 19; Re-review Stip.) Plaintiffs have the right to inspect a percentage of re-review cases, and defendants do not seek to end plaintiffs' counsel's monitoring of re-review cases. (Id. at 19-20; Re-review Stip.)
In addition, the Board now recognizes its obligation to provide certified Spanish translators when needed, and has revised the Notice of Hearing and its related forms and documents to advise parties that Spanish-language translators will be provided at all Board hearing locations. (Defs.' Mem. at 20-21.)
The Board's 1999 revised Amelioration Plan has led to the computerization of the checklist process, reduction in the size of ALJ teams, and establishment of the position of Senior ALJ for Training. (Id. at 37.) There is also some evidence of observations and counseling of particular ALJ's to ensure compliance with the Consent Decree. (Lorenzo Aff. Exs. 5-9.)
Despite these improvements, plaintiffs claim that serious problems persist, which prevent the goals of the Consent Decree from being realized.
DISCUSSION
A consent decree may be modified pursuant to Rule 60(b), F.R.Civ.P., which provides in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: . . . (5) the judgment has been satisfied, released, or discharged or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
The party seeking modification of a consent decree bears the burden of showing "a significant change either in factual conditions or in law." Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 384 (1992). Accordingly, modification is appropriate where the moving party can cite to changes in the law affecting its obligations under the consent judgment, the consent judgment becomes unworkable due to unanticipated obstacles, or enforcement of the consent judgment without modification would harm the public interest. See id.;Agostini v. Felton, 521 U.S. 203, 237 (1997); United States v. Sec'y of Hous. and Urban Dev., 239 F.3d 211, 218 (2d. Cir. 2001), cert. denied, 534 U.S. 1054 (2001).
Defendants claim that the law under which the original complaints were brought has changed and the Consent Decree should be read in light of those changes. First, defendants argue that recent decisions of the United States Supreme Court demonstrate the Court's "current rethinking of the use of judicial intervention so that state sovereignty is protected." (Defs.' Mem. at 8.) Second, they claim that the Second Circuit's decision in New York State Nat'l Org. for Women v. Pataki, 261 F.3d 156 (2d Cir. 2001), cert. denied 534 U.S. 1128 (2002) ("NOW"), changed the definition of what constitutes due process at a state administrative agency, and that as a result of that change, the claims of the plaintiff class with respect to an alleged due process violation were stronger when the parties entered into the Consent Judgment than they are today. (Defs.' Mem. at 12.)
With regard to changes in the law, the court in Rufo explained that "[a] consent decree must of course be modified if, as it later turns out, one or more of the obligations placed upon the parties has become impermissible under federal law. But modification of a consent decree may be warranted when the statutory or decisional law has changed to make legal what the decree was designed to prevent." Rufo, 502 U.S. at 384; see also Agostini, 521 U.S. at 234-37 (relieving city from injunction upon concluding that the law governing the Establishment Clause had changed such that the city's program could no longer be considered illegal).
In contrast to Agostini, where the Court's overruling of portions of earlier cases explicitly legalized specific conduct that was previously illegal, the so-called changes in the law cited by defendants do not rise to the level of "significant" change contemplated by the Court in Rufo. The apparent desire by a majority of the Supreme Court to provide greater protection for state sovereignty is an indication of a general shift in ideology in certain cases rather than a change in a law relevant to this case. In earlier dispositions, this court has expressed its view that the Board must be accorded deference in determining its own procedures for compliance with the Decree, rather than imposing plaintiffs' suggested procedures on the agency. This is quite different from defendants' contention that they should be released from the obligations of a decree negotiated extensively and at arm's length by the parties due to this deference. The court rejects this argument.
For example, in New York v. United States, 505 U.S. 144 (1992), and Printz v. United States, 117 S.Ct. 2365 (1997), the Court held that Congress violates the Tenth Amendment if it compels state legislative or regulatory activity. In United States v. Lopez, 514 U.S. 549 (1995), the Court, for the first time in almost 60 years, found that Congress had exceeded its commerce (continued on next page . . .) clause authority in enacting a federal law. See Erwin Chemerinsky, Federal Jurisdiction 389-90 (3d ed., Aspen Law Business 1999).
The court also rejects defendants' interpretation of the NOW case. The Second Circuit in NOW analyzed whether the New York State Division of Human Rights afforded plaintiffs adequate process, where the government's extreme delay in processing claimants' complaints led to actual prejudice. The Circuit followed the "familiar analysis" set forth in Mathews v. Eldridqe, 424 U.S. 319, 335 (1976), and held that because Article 78 proceedings were an available alternative that would not have caused delay, no due process violation had occurred. NOW, 261 F.3d at 167-68. Defendants point out that the court, in denying that its holding contravened the general rule that exhaustion is not required for § 1983 claims, stated that "a procedural due process violation cannot have occurred when the governmental actor provides apparently adequate remedies and the plaintiff has not availed himself of those remedies." NOW, 261 F.3d at 169.
Under Mathews, 424 U.S. at 335, a court must weigh: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
The court disagrees with defendants' contention that NOW signifies a change in the "very law concerning the due process requirements of a state's administrative procedures. . . ." (Defs.' Mem. at 11.) NOW did not change the law; it applied the existing law as laid out in the 1976 Mathews case. Moreover, even if NOW strengthened defendants' case as they contend, allowing modification of consent decrees based on clarifications of existing law that arguably make a party's case stronger or weaker would greatly broaden the court's powers of modification. Both parties presumably weighed the strengths and weaknesses of their legal arguments before entering the Consent Decree, and in signing the Decree, chose to gain the benefit of certainty rather than face the risks inherent in litigating. Having gained this benefit, it would be both unfair and contrary to the law of contracts to release defendants from their obligations simply because to release defendants from their obligations simply because their bargaining power has arguably increased. See Rufo, 502 U.S. at 388.
In sum, because the court holds that there has not been a significant change in law that would warrant an end to plaintiffs' monitoring, defendants' motion on this ground is denied.
Defendants also move for an end to plaintiffs' monitoring based on a change in factual circumstances. Specifically, they claim that the Board is in substantial compliance with the Decree requirements and that termination of monitoring is therefore appropriate at this time. This cross-motion of defendants' will be examined in conjunction with plaintiffs' motion for enforcement and modification of the Consent Decree, as both address the same issue: Board compliance with the terms of the Decree.
Plaintiffs claim that the Board's actions have failed to reduce procedural violations and claimants continue to be deprived of fair hearings to which they are entitled under the Decree. Plaintiffs allege that (1) in an attempt to demonstrate compliance, defendants have artificially deflated the rate of checklist violations through the use of questionable math; (2) the accurate data demonstrates that defendants' efforts have proven "woefully inadequate;" and (3) even defendants' deflated statistics fail to show an improvement in violation rates since 1992 (when plaintiffs filed a contempt motion) or since 1996 (when the Board implemented its Amelioration Plan).
The main controversy between the parties is over how to define and calculate the rate of checklist violations. Plaintiffs argue that the violation rate, which is the rate of occurrence of all procedural violations, as well as the "serious violation" rate, i.e., the rate of occurrence of violations that "more likely than not" require a remedy, should govern the parties' analysis. In contrast, defendants contend that the remedy rate, which is the rate at which an appeal ALJ ultimately determines that a remedy is warranted to cure a violation, should govern. Plaintiffs counter that even if the remedy rate is used to determine compliance, defendants still fail to show substantial compliance and in fact have not even met their own compliance goals set in the Amelioration Plan.
In addition to the issue of which rate should be used to measure compliance, the parties disagree over inclusion of "no merits review" cases and exclusion of rule 27(b) violations from defendants' count. The court must resolve these issues first, as the inclusion or exclusion of these data will affect all of the violation rates discussed above.
"No merits review" cases are those where no checklist was ever filled out by an appeal ALJ because, for example, a transcript of the hearing below was not available. As no checklist was ever prepared, it is impossible to determine if any checklist violations occurred in these cases. Defendants have nevertheless counted these cases as involving no violation. Defendants now appear to agree that "no merits review" cases should not have been included in their calculations, however they argue that since they were included in the past, they should also be counted in the present so that a comparison of violation rates will be meaningful. The court disagrees. A comparison of violation rates from past to present, while undoubtedly informative, is only secondary to ensuring that the court and the parties are working with an accurate view of where violation rates stand today. "No merits review" cases will therefore be excluded from the court's examination of violation rates.
When comparing data from previous years in which "no merits review" cases were included, the court will assume that the violations rate would have been somewhat higher had these cases been excluded.
A violation of checklist item 27(b) occurs when the "[t]ranscript is not adequate because the testimonial evidence has not been sufficiently developed to render an informed decision on all issues that must be ruled upon." (Pls.' Mem. at 14.) By agreement of the parties, this item can only be considered an error in proceeding and not a violation of the Decree. (Checklist and Guideline Stip. App. 3, p. 23, n. 3.) As such, in determining the Board's substantial compliance with the Decree, the court will not consider this checklist item.
Now that the court has disposed of these preliminary issues, the figures may be examined. Defendants claim that the Board's Amelioration Plan and the agreements previously reached by the parties have had the direct effect of reducing checklist violations from 1995 levels, as those levels were measured by plaintiffs' counsel. In addition, the rates for each six month period from 1998 to 2001 have stabilized within a very narrow range, in contrast to the steady increases in the years prior to the implementation of the Plan. They cite the following percentages:
Peak viol. rate (1995) 51.19%
Period Viol. Rate
7/1/98 — 12/31/98 28.69% 1/1/99 — 6/30/99 31.33% 7/1/99 — 12/31/99 27.70% 1/1/00 — 6/30/00 27.86% 7/1/00 — 12/31/00 27.52% 1/1/01 — 6/30/01 32.96% 7/1/01 — 12/31/01 32.68%
(Defs.' Mem. at 23.)
With regard to remedy rates, defendants claim there was a decrease from 1996 levels, but in so claiming, they incorrectly cite to a 15.59% baseline rate as a starting point, when the 12-month average for 1996 was 12%, and this was the stated baseline in defendants' own Amelioration Plan. The Amelioration Plan goal was a 33% decrease in the baseline remedy rate, i.e., a reduction to 8%. The remedy rates offered by defendants are as follows:
Apparently, the 15.59% remedy rate refers to the first six months of 1996. The second six months averaged 8.37%, leading to the twelve month baseline of 12%. (Pls.' Reply Mem. at 12.).
Period Rem. Rate
7/1/98 — 12/31/98 10.51% 1/1/99 — 6/30/99 12.08% 7/1/99 — 12/31/99 11.91% 1/1/00 — 6/30/00 13.04% 7/1/00 — 12/31/00 10.46% 1/1/01 — 6/30/01 13.15% 7/1/01 — 12/31/01 13.09%
(Defs.' Mem. at 29.) Clearly defendants have not achieved their goal of reduction to an 8% remedy rate.
Overall, plaintiffs' figures do not differ much from defendants':Period Viol. Rate Serious Viol. Rem. Rate
1998 27.8% 21.5% 12.7% 1999 28.3% 22.2% 13.6% 2000 26.9% 20.9% 13.2% 2001 32.2% 26.0% 14.8% (Pl.'s Mem. at 13.) Where the parties differ is with respect to the relative importance of the various figures and the question of whether these statistics support defendants' claim that the Board is in substantial compliance with the Decree.As to the first question, the court agrees with plaintiffs that the violation rate and serious violation rate are of central concern in determining compliance. The whole point of the Decree is to prevent violations, not simply where a remedy is ultimately required, but in all cases and for all claimants.
As to the second question, the court cannot find that defendants are in substantial compliance with the Decree. It is true that violations have decreased substantially from the peak rate of 51.19% in 1995, to an average rate of approximately 29 percent. Plaintiffs point out, however, that when they moved for contempt in 1992, the violation rate was an estimated 28.53 percent. Hence, it appears that after a spike in violations, defendants' efforts have landed them at about the same point as in 1992.
The court noted in its 1994 opinion that the probative value of the 28.53% rate cited by plaintiffs was diminished because it was calculated using non-consecutive months and no explanation was provided for the sample that was used. Plaintiffs have since explained that the months selected had been agreed to by the parties, and defendants do not contest this. (Pls.' Mem. at 16, n. 9.) As such, the court's concern about bias is alleviated, and this figure is accepted.
The violation rate may have stabilized as defendants contend, but that alone is not a basis upon which the court will find substantial compliance. Rather, it is crucial that the rate be stabilized at a level at which it could reasonably be said that the Board provides fair and impartial proceedings that conform to due process of law.
The remedy rate does not bolster defendants' case. By their own calculation, the weighted average remedy rate for the observed period is 11.91%, at best a negligible improvement from where they started in 1996. (Defs.' Mem. at 29.) Defendants point out that since the Board broadened the standard for determining when a remedy is required in 1997, there has likely been greater improvement than reflected in these statistics. Such speculation does not suffice to meet defendants' burden of proof for modification of the Decree.
During its 1996 conference with the parties, the court expressed concern over violations that occur in the 80% (now 86%) of cases that are never appealed. The parties now strenuously disagree over whether the violation rates cited above, which are compiled from cases that are appealed, may serve as a basis for extrapolation to cases that are never appealed in order to estimate violation rates for those cases. Defendants hypothesize that claimants are much more likely to appeal where procedural violations occurred in their hearings; thus, in unappealed cases procedural violations are much less likely to have occurred. Plaintiffs contend that extrapolation is sound because a claimant's decision to appeal is not likely to be related to checklist violations, as claimants are unaware of the rules of procedure in ALJ hearings and therefore do not know when violations have occurred. Each side submits expert reports in support of its arguments.
In a conference on September 10, 2002, the court explained to defendants that if they are going to try to prove substantial compliance with regard to cases that are never appealed, they would have to point to documentation. (Becker Dec. Ex. 24.) Defendants have access to information about unappealed cases; plaintiffs do not. Therefore, while it makes sense for plaintiffs to engage in speculation about violation rates in unappealed cases in order to respond to defendants' claim of substantial compliance, defendants cannot respond to plaintiffs' argument with speculation. Defendants must do more to convince the court that they are in substantial compliance.
In summary, although the Board has accepted and incorporated some of plaintiffs' many demands and suggestions into its policies, the Board has not achieved substantial compliance. The parties' data suggests that, at present, procedural violations occur in one roughly out of three cases, serious violations occur in roughly one out of four cases, and a remedy is necessary to cure violation in roughly one out of eight cases taken on appeal.
Plaintiffs have proposed an amelioration plan that they believe would carry out the mandate and intent of the Decree. They urge the court to order the Board to institute this plan, claiming that such action is appropriate at this time, as "the Board has implemented four different versions of its violation reduction or amelioration plans since 1992, and the record reveals that none of those plans produced significant progress in reducing the violation and remedy rates. . . ." (Pls.' Reply Mem. at 27.)
Plaintiffs' frustration and resultant desire to have their own plan instituted are certainly understandable. Nevertheless, the court declines to take such a drastic step at this time. As alluded to above, the Board has been making good faith, though as of yet insufficient, efforts to reduce violations in recent years. At this point the Board must carefully reevaluate those efforts. It would be prudent to look at the procedures set forth in its own violation reduction and Amelioration Plans to see where these procedures have not been fully implemented or complied with. Defendants are also urged to take another look at plaintiffs' Proposed Amelioration Plan, as such a performance-based approach appears to provide the Board with an avenue for compliance. Defendants are ordered to produce a report and plan within 90 days, which at the very least should include (1) an analysis of compliance with all provisions of its own former plans; (2) a new plan; (3) a comprehensive system for tracking compliance with the provisions of the new plan; and (4) a system of tracking the level of compliance with the Decree.
There remain a series of other complaints made by plaintiffs about various unrelated practices they seek to modify or prevent. First, plaintiffs claim that, with regard to the prospective cases the Board has agreed to re-review, defendants refuse to provide claimants with specific reasons for reopening their cases, in violation of the Decree and Due Process. The Notice of Reopening used by the Board informs a claimant:
This is to advise all parties of the reopening of the decision of the Appeal Board filed [DATE] ([CASE#]). The board has determined to reopen the decision on the board's own motion to reconsider the issues in the case raised by the re-review of the file in accordance with the Stipulation and Order in Municipal Labor Comm. v. Sitkin, dated 12/18/97.
(Becker Dec. Ex. 37.)
Although there is no express language in the Decree requiring that a Notice of Reopening be specific, plaintiffs argue that this requirement is incorporated into the Decree as a matter of clear and unambiguous pre-existing state law, and as a matter of federal constitutional law. (Pls.' Mem. at 37.)
A consent judgment is to be construed for enforcement purposes basically as a contract. United States v. ITT Continental Baking Co., 420 U.S. 223, 238 (1975). Law existing when the contract is executed must be read into the contract as if it is part of the agreement. Norfolk and Western Railway Co. v. Am. Train Dispatcher's Ass'n, 499 U.S. 117, 130 (1991) (citation omitted); Dolman v. United States Trust Co. of New York, 2 N.Y.2d 110, 116 (1956).
In Matter of Olan (Ross), 400 N.Y.S.2d 379, 381, 60 A.D.2d 113, 116 (3d Dep't 1977), the Appellate Division held that a notice of reopening of an unemployment insurance case that failed to inform the claimant of the specific points to be reconsidered was inadequate. The court issued this directive:
Henceforth, in the interest of fairness and due process the "Notice of Reopening" shall include the specific points to be reconsidered so that appellant might address those points in any written statements, documents or briefs he might be advised to submit to the board.Id. See also Matter of Bramson Entm't Bureau, Inc. (Roberts), 523 N.Y.S.2d 641, 136 A.D.2d 807 (3d Dep't 1988) (holding that the reopening of a case was not an abuse of the Board's discretion, in light of the fact that the claimant was given "comprehensive and explicit" notice).
Moreover, regardless of whether there was applicable state law, claimants have a federal constitutional right to more specific notice than that provided by the Board. The United States Supreme Court, in Goldberq v. Kelly, 397 U.S. 254, 267-68 (1970), addressed the type of notice to be afforded in the welfare context, and held that due process requires "timely and adequate notice detailing the reasons for a proposed termination, and an effective opportunity to defend. . . ."
This principle has been applied to inadequate notices in unemployment hearings. For example, in Shaw v. Valdez, 819 F.2d 965 (10th Cir. 1987), the Tenth Circuit held Colorado's Notice of Hearing Before a Referee inadequate, where the notice gave "only a broad, unspecified statement that `all issues and factual matters affecting claimant's eligibility and qualification for benefits will be heard. . . .'" Id. at 969. The court noted that "since Shaw never received the employer's protest letter, he was faced with the virtually impossible task of preparing for all issues that might arise under Colorado's complex statutory scheme." Id. (emphasis in original). See also Cosby v. Ward, 843 F.2d 967, 982 (7th Cir. 1988) (holding notice for state unemployment insurance search for work requirements inadequate, and stating, "Unless a person is adequately informed of the reasons for denial of a legal interest, a hearing serves no purpose — and resembles more of a scene from Kafka than a constitutional process. Parties must be notified in advance of the precise issues to be raised in the hearing.")
Here, the Board puts claimants in the same predicament as inShaw: the notice does not give a specific reason for reopening the case, so claimants have the virtually impossible task of trying to respond to every procedural issue that the Board might consider under the checklist scheme set forth in the Decree.
Plaintiffs request that the Appeal Board be enjoined from sending any reopening notice that fails to provide specific reasons for reopening. They also request that, in order to cure the inadequate notices of reopening that the Board previously sent to claimants in the 1990 through 1997 re-review period, the Board be ordered to send a new notice of reopening that states the specific reason(s) why the case is being reopened. See Bowen v. City of New York, 476 U.S. 467, 485 (1986) (holding a district court's order to reopen administrative claims that were closed improperly to be appropriate). This would mean reopening thousands of cases previously reopened, likely at a significant cost to the government. It is not a step to be taken lightly. Yet, in light of the fact that the parties have explored the possibility of less burdensome alternatives through mediation to no avail, this step appears necessary. Accordingly, the Board is enjoined from sending any reopening notice that fails to provide specific reasons for reopening, and is ordered to send proper notices of reopening to claimants whose previous notices were inadequate.
The court notes that plaintiffs promptly informed defendants that their notice was inadequate, and sent several letters detailing the relevant case law. The Board nevertheless determined that specific notice should not be afforded because it might "confuse" claimants by creating the incorrect impression that the specific procedural items identified would be the only issues addressed. By simply rejecting the plaintiffs' contention that the notices were legally inadequate and continuing to send those notices, the Board aggravated the problem.
Plaintiffs' second complaint regards a dispute over the checklists that are being provided by the Board. Before the computerization of checklists, the Board used handwritten paper checklists, and it was understood that any changes to the checklists based upon later review, such as removal of a checklist violation, or addition of a checklist violation that was not previously marked, were to be noted and explained. (Pls.' Mem. at 46-48; Becker Dec. Ex.'s 46-50.) Upon computerization of the checklists in 1998, changes to checklists based upon review have no longer been maintained by the Board, and there is only a single official checklist for each case number. (Defs.' Mem. at 59.) Defendants claim that they are not required to produce "draft" or "non-final proposed checklists" to plaintiffs, while plaintiffs claim that they are entitled to see any changes that are made to checklists filled out by appeal ALJ's.
The Consent Decree does not define the term "checklist" so it does not help to resolve this matter. For the 15 years prior to computerization, the checklists turned over to plaintiffs consisted of the original lists prepared by the reviewing ALJ's plus later changes. In addition, any changes to a checklist that were directed by a Board member were to be initialed by the member and explained, thus flagging for plaintiffs the fact that a change was made. (Pls.' Mem. at 48; Becker Dec. Ex. 46.) Based on this course of performance, the court finds that the term "checklist" refers to the original checklist review and information about changes that are made. The Board is ordered to provide access to checklists as defined herein from this point forward, and is also ordered to promptly turn over to plaintiffs any "draft" checklists in its possession that may have been withheld.
The third issue pertains to the Board's method of selecting re-review cases for plaintiffs' inspection. Pursuant to the 1997 Re-review Stipulation, the Board is required to provide plaintiffs' counsel with up to 450 re-review cases for their inspection for each monitoring year. In 1998, the Board made the first 450 re-review cases available to plaintiffs. According to defendants, the staff was in a rush and files were just selected with no particular method. Plaintiffs objected to the sample on the ground that it was not randomly selected, and that they could not rely upon the monitoring sample as a true and fair reflection of the Board's compliance with the Decree. Defendants responded that nothing in the Re-review Stipulation required the sample to be random, but they agreed to provide a random sample in the future. As to the first sample, they refused to provide a replacement. (Becker Dec. Ex. 54.)
The Re-review Stipulation does not specify that the Board must randomly select re-review cases that are monitored by plaintiffs' counsel. Moreover, in other parts of this Stipulation and others, the requirement of a random sample is made explicit. (Becker Dec. Ex. 1, ¶ 42; Ex. 2, ¶ 8; Ex. 8, ¶ 16.)
Plaintiffs argue that ¶ 42 of the 1983 Consent Judgment, which governs "review" of cases and dictates that "600 random cases per year for three years" shall be provided to plaintiffs and that "The random inspections shall take place three times a year," as well as ¶ 6 of a 1985 Stipulation and Order, which states that "defendants shall continue to make a sufficient number of case files . . . available to afford counsel an adequate statistical sampling to monitor defendants' conduct" apply to the re-review.
The re-review cases are just a subset of cases under "review" a second time due to problems with the Board's first review. Defendants have always been required to provide a random sampling of case files for review purposes. That there is no specification in the Re-review Stipulation regarding the method of gathering case files does not mean that they may be gathered in any way the Board chooses. The court finds that the Decree requires that samples be random, as per past and present practice. Defendants are ordered to produce the random sample requested by plaintiffs.
The final issue raised by plaintiffs pertains to mediation. Plaintiffs seek a declaratory judgment that the language of ¶ 11 of the Checklist and Guidelines Stipulation requires the Board to participate in mediation efforts to resolve checklist disputes arising from plaintiffs' case file monitoring. (Pls.' Mem. at 52.) Defendants do not contest this requirement, and appear from their submissions to fully understand it. In light of defendants' apparent understanding and willingness to comply, as well as the July 12, 2001, Mediation Stipulation and Order, which recently clarified the duties of the parties, the court sees no need for a declaratory judgment at this time.
CONCLUSION
Defendants' motion for modification of the Consent Decree is denied. Plaintiffs' motion for enforcement is granted in part and denied in part. Plaintiffs' motion for modification is denied. Plaintiffs are awarded reasonable attorney's fees, costs, and out-of-pocket expenses.