OPINION AND ORDER

WILLIAM C. CONNER, District Judge.

A class of private plaintiffs and the Equal Employment Opportunity Commission (the "EEOC") brought two civil rights actions in 1973 against the Newspaper and Mail Deliverers' Union of New York and Vicinity (the "NMDU" or "Union") and more than fifty publishers and news distributors having collective bargaining agreements with the Union. Both suits charged that the Union, with the acquiescence of the publishers and distributors, had historically discriminated against minorities, and that the structure of the collective bargaining agreement, combined with nepotism and cronyism, had perpetuated the effects of past discrimination in violation of Title VII of the Civil Rights Act of 1964. Each lawsuit sought an affirmative action program designed to achieve for minorities the status they would have had in the newspaper delivery industry but for the alleged discriminatory practices.

On September 19, 1974, then-District Judge Lawrence W. Pierce issued an opinion and order approving a settlement between the parties and incorporating the Settlement Agreement in a Consent Decree, familiarity with which is presumed. See Patterson v. Newspaper and Mail Deliverers' Union, 384 F. Supp. 585 (S.D.N.Y. 1974), aff'd, 514 F.2d 767 (2d Cir. 1975), cert. denied, 427 U.S. 911, 96 S.Ct. 3198, 49 L.Ed.2d 1203 (1976).

The Settlement Agreement established a goal of 25% minority employment in the industry within NMDU bargaining units. See Settlement Agreement at ¶ 7. That "goal" was defined as "not an inflexible quota but an objective to be achieved by the mobilization of available personnel and resources . . . in a good faith effort to maximize employment opportunities for minorities in the bargaining units in the industry represented by NMDU." See Settlement Agreement at ¶ 8. To achieve this goal the Settlement Agreement implements an affirmative action program which modifies the hiring procedures for newspaper deliverers under the industry-wide collective bargaining agreement. Under the Consent Decree, each employer maintains a work force of regular situation holders for its minimum delivery needs. To accommodate fluctuations in circulation, the publishers are permitted to supplement their work force with daily shapers.

The daily shapers are divided into three groups with descending hiring priorities. Those shapers on the Group I list have first priority, after the regular situation holders, in order of their shop seniority. The next priority belongs to Group II shapers. Group II consists of all persons holding regular situations or Group I positions with other employers in the industry. Last in order of priority are the Group III shapers.

The Settlement Agreement provides for the orderly flow of Group III shapers into Group I, and from there, into regular situations. The Agreement mandates that for each non-minority Group III member elevated to Group I, a minority Group III member must also be elevated. Moreover, the Agreement requires that for every two non-minority persons added to the Group III list, three minority persons must be added. Through this process, it was intended that the proportion of minority workers in the industry would increase to the 25% goal by June 1979. See Settlement Agreement ¶¶ 11, 12, 15. When that goal was not reached by the specified date, the relevant provisions were extended and later extended again.

The Settlement Agreement also established an Administrator, appointed by the Court, to implement the provisions of the Consent Decree and supervise its performance. The Settlement Agreement authorizes the Administrator to hear claims concerning violations of the Decree. Appeals from his decisions are heard in this Court.

BACKGROUND

On April 17, 1985, the New York Times (the "Times") moved for an order, pursuant to Paragraph 7 of the Final Order and Judgment in this matter dated October 24, 1974, and Rule 60(b), Fed.R.Civ.P., to vacate or modify said Final Order and Judgment on the grounds that (1) the terms of the Final Order and Judgment have been satisfied; and (2) relief therefrom is justified under present circumstances. On February 23, 1987, the Court held a hearing to consider defendants' motion to terminate the Settlement Agreement. At the conclusion of the hearing, the Court ruled from the bench that notwithstanding that some employers had reached or exceeded the 25% figure within their respective operations, the goal to be realized was "25% minority employment in the industry." See Hearing Transcript at 125. Accordingly, this Court deferred its decision on the motion to terminate the Decree until defendants could produce sufficient evidence to demonstrate that minority employment in the bargaining unit had reached 25% throughout the industry as a whole.

On May 30, 1991, having reviewed compliance reports which indicated that the 25% goal had been met and exceeded, this Court restored defendants' motion to vacate the Consent Decree to its calendar. In order to aid it in rendering a decision, the Court directed the Interim Administrator to submit compliance reports of all defendant companies. On September 9, 1991, the Interim Administrator issued a Report in which he concluded that "the minority figure of 28.53% suggests substantial compliance for the industry." Report of the Interim Administrator Concerning the Compliance Reports ("Report") at 9.

On September 30, 1991, the Court issued an Opinion and Order in which it deferred consideration of defendants' motion to vacate the Decree in order that the concerns of the NAACP Legal Defense Fund (the "LDF") respecting the validity of the compliance reports could be addressed. In this regard, the Court indicated that three things would be required or allowed to happen before it again considered the pending motion: (1) each defendant company was to file an affidavit with the Administrator verifying the information contained in the previously filed compliance reports; (2) the LDF and the EEOC could undertake limited discovery concerning the compliance reports "[i]f plaintiffs feel that discovery on compliance continues to be warranted subsequent to such submissions;" and (3) the Administrator was to "conduct an evidentiary hearing following the close of discovery to determine the validity of defendants' compliance reports" "[i]f plaintiffs so request." Opinion and Order, dated Sept. 30, 1991, at 8.

On November 27, 1991, the Administrator provided the Court with a declaration under the penalty of perjury, in accordance with 28 U.S.C. § 1746, from each of the defendant companies, through an authorized agent, to the effect that the compliance reports consisted of and/or were based upon corporate business records. Plaintiffs never availed themselves of the opportunity to conduct discovery of the defendant companies with respect to their compliance reports. On April 2, 1992, Interim Administrator Ellis circulated a letter in which he indicated that the LDF did "not intend to conduct any further investigation concerning the compliance reports." The Interim Administrator's letter makes no reference to any request by the LDF for an evidentiary hearing concerning the validity of the compliance reports. On April 7, 1992, the Court restored the pending motion to modify or vacate the Patterson Consent Decree to its calendar for consideration.

This matter is presently before the Court on the motion of defendants Times, Maxwell Newspapers, Inc. ("Maxwell"), New York Post ("Post"), and the NMDU pursuant to paragraph 7 of the Consent Decree and Rule 60(b), Fed.R.Civ.P., to vacate or modify the Consent Decree. For the reasons discussed below defendants' motion to vacate is granted. The requests of the LDF and the EEOC for continuation of the Consent Decree's substantive provisions, as well as continuation of its existing enforcement mechanism or introduction of a new one, are denied.

DISCUSSION

The principal purpose of the Consent Decree, which defendants entered "without admission by any defendant of a violation of Title VII . . . or . . . 42 U.S.C. § 1981, and without any finding by this Court that any defendant has discriminated against any person or persons because of race, color or national origin," was "to correct the . . . statistical imbalance [of minority individuals]" by "put[ting] minority individuals in the positions they would have occupied had the aforesaid statistical imbalance not existed." The Affirmative Action Program, with its implementation ratios for placement of minorities on Group III and Group I toward the end of attaining the 25% target, was the engine for achieving these purposes.

Applicable Legal Standard

The Court's jurisdiction to vacate or modify the Consent Decree arises not only from the Consent Decree itself, but from Rule 60(b) of the Federal Rules of Civil Procedure and this Court's inherent equitable power over its decree. In United States v. Swift Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932), the Supreme Court held that:

Power to modify the decree was reserved by its very terms, and so from the beginning went hand in hand with its restraints. If the reservation had been omitted, power there still would be by force of principles inherent in the jurisdiction of the chancery. A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need.

Before exercising its power to modify or vacate a judicial decree, a court must be convinced by the party seeking relief that the purposes of the litigation as incorporated into the decree have been fully achieved. See United States v. United Shoe Machinery Corp., 391 U.S. 244, 248, 88 S.Ct. 1496, 1499, 20 L.Ed.2d 562 (1968); see also Rufo v. Inmates of Suffolk County Jail, ___ U.S. ___, 112 S.Ct. 748, 758, 116 L.Ed.2d 867 (1992); Board of Education of Oklahoma City Public Schools v. Dowell, ___ U.S. ___, 111 S.Ct. 630, 636-37, 112 L.Ed.2d 715 (1991). Second Circuit authority is consistent with the case law cited above, recognizing the necessity for liberal modification of final judgments. See, e.g., New York State Ass'n for Retarded Children v. Carey, 706 F.2d 956, 967-70 (2d Cir.), cert. denied, 464 U.S. 915, 104 S.Ct. 277, 78 L.Ed.2d 257 (1983) (modification power is "broad and flexible," and is appropriately exercised in light of changing factual circumstances); Chance v. Board of Examiners, 561 F.2d 1079, 1086 (2d Cir. 1977) (indicating that vacation of a consent decree is possible when "the purposes of the decree have been achieved.").

The EEOC maintains that this case is governed solely by United States v. Swift Co., 286 U.S. 106, 119, 52 S.Ct. 460, 464, 76 L.Ed. 999 (1932), and that Dowell and Rufo are inapplicable, so that the permanent injunction portions of the Consent Decree may not be dissolved without a clear showing of grievous harm evoked by new or unforeseen conditions. The Court cannot agree. In Swift, the Supreme Court stated:

The inquiry for us is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change [the decree.]

The Swift opinion pointedly distinguished the facts of that case from one in which genuine changes required modification of a consent decree, stating that:

"The distinction is between restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change, and those that involve the supervision of changing conduct or conditions and are thus provisional and tentative. . . . The consent is to be read as directed toward events as they then were. It was not an abandonment of the right to exact revision in the future, if revision should become necessary in adaptation to events to be."

The restraints imposed by the Decree in the instant case, unlike those at issue in Swift, were never intended to operate in perpetuity. Indeed, only paragraphs I and 2 are declared "permanent." The remaining provisions of the Decree were provisional only — they were to last until the vestiges of racial discrimination in the industry had been removed. As stated in the Consent Decree, the attainment of 25% minority employment industry-wide was the standard established for measuring compliance with this objective. Since the Patterson Consent Decree "involve[s] the supervision of changing conduct or conditions," see Swift, 286 U.S. at 114, 52 S.Ct. at 462, the Court concludes that the more rigid standard set forth in Swift is inapplicable and that the more flexible standard of demonstrating satisfaction of the Decree's purposes applies to the decision of whether to terminate or modify the Consent Decree. Motion to Modify or Vacate the Consent Decree

The Administrator's statistical compilation of September 17, 1991, which is drawn from the compliance reports, establishes that approximately seven months ago minority representation among regular situation and Group I personnel industry-wide was 27.97%. See Letter of Interim Administrator Ellis to the Court, dated Sept. 17, 1991. Subsequent reports show that this level of minority employment has been maintained. As the Court has often noted, minority representation in the membership of NMDU in the newspaper industry in metropolitan New York was less than 1% when the Consent Decree was issued in 1974. The present employment statistics indicate that the pervasive discrimination which caused the near total absence of minority opportunities in 1974 has vanished. The stated objective of the affirmative action program set forth in the Consent Decree — 25% minority employment industry-wide — has been achieved. The structure put in place in 1974 to achieve that end is now an unnecessary and expensive relic, and ought to be retired.

The LDF argues that the Consent Decree must continue in effect since it contains no expiration date applicable to its substantive provisions. Accordingly, the LDF contends that the parties intended the Consent Decree "to remain in force indefinitely" pending a judicial finding that "every facet" of defendants' operations is free of discrimination. LDF Memo., dated June 27, 1991, at 22. The LDF further submits that such a showing cannot be made at this time and, therefore, that the Consent Decree should remain in force with an Administrator at its helm for another five years.

The parties to the Settlement Agreement could not have intended that the Affirmative Action program and the Administrator provisions would be of infinite duration. Rather, it is clear that those provisions were to remain in place only as long as necessary to effectuate the goal of 25% minority employment in the industry represented by the NMDU. This intent is evidenced by the language of the Settlement Agreement itself. For example, the Settlement Agreement specifically states that:

Any terms and provisions of any collective bargaining agreements between NMDU and any defendant employer which have been suspended by operation of the Order may be put into effect when the Order terminates, unless this Court orders otherwise.

Settlement Agreement at ¶ 33 (emphasis added). Similarly, the Settlement Agreement did not intend that the Administrator's functions would continue indefinitely:

The Administrator designated by the Court shall remain in office for an initial period of five (5) years after the date of entry of the Order . . . and he or his successor thereafter shall remain in office if and for such time as the Court may direct.

The affirmative action plan embodied in the Patterson Consent Decree, like that approved by the Supreme Court in United Steelworkers of America v. Weber, 443 U.S. 193, 209, 99 S.Ct. 2721, 2730, 61 L.Ed.2d 480 (1979), was "not intended to maintain racial balance but simply to eliminate a manifest racial imbalance." To maintain the temporary affirmative action provisions provided for in the Settlement Agreement after they have served their stated purpose would not only be beyond the intent of the parties but would also infringe on the legitimate expectations of non-minority employees. In E.E.O.C. v. Local 638 . . . Local 28 of Sheet Metal Workers' Int'l Ass'n, 753 F.2d 1172, 1186-87 (2d Cir. 1985), aff'd, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986), the Second Circuit, following the Supreme Court's decision in United Steelworkers of America v. Weber, held that "a temporary, race-conscious affirmative action remedy such as a membership goal" lasts "only until the effects of the past discrimination have been eliminated. . . ." The purpose of the Consent Decree in the instant matter has been achieved — the 25% goal agreed to by all parties to the Patterson action with the intention of eliminating the effects of past discrimination has been attained. The time has come for this Court to vacate the Consent Decree and allow the industry to self regulate subject, of course, to the laws preventing racial discrimination. The LDF's Request for a Hearing

The LDF argues that the Court may not terminate or modify the Consent Decree without a full evidentiary hearing. The LDF requests a hearing so that it may prove: (1) that the industry has committed numerous discriminatory acts and violations of the Settlement Agreement, even during the period while the motions to terminate were pending; (2) that the industry is not capable of self-policing; (3) that racial discrimination will escalate if the office of the Administrator is eliminated or other protections afforded by the Settlement Agreement are removed; (4) that an Administrator is desperately needed to protect the rights of minority workers and applicants; (5) that the labor market for jobs within the jurisdiction of the NMDU is now well over 50% minority; and (6) that hiring ratios are still needed in order to prevent massive racial discrimination in hiring. LDF Memo., dated June 27, 1991, at 18-19.

Such a hearing, however, is neither required nor necessary. In the instant case, the Administrator, as well as the Court, has monitored compliance with the Settlement Agreement since its inception. With respect to the instant motion to vacate or terminate the Consent Decree, the parties have presented extensive arguments to this Court in various motion papers, at a conference held on May 30, 1991, and at a hearing held on February 23, 1987. There is, accordingly, a vast evidentiary foundation — both statistical and experiential — which this Court may explore in order to decide whether vacation of the Decree is appropriate.

Even assuming, arguendo, the LDF's proposition that defendants have continued to violate the Consent Decree and that discrimination remains prevalent in the industry, such arguments are not relevant to defendants' application for vacation of the Consent Decree. As this Court has stated previously:

The hearing will not be for the purposes plaintiff has suggested: i.e., to determine whether defendants have violated Title VII of the Civil Rights Act of 1964 or the consent decree. If plaintiffs believe that defendants have violated the consent decree, they should apply to the Administrator for relief pursuant to the decree. If they believe that the decree was insufficient to end discrimination in the industry, they must bring a new action for the relief they seek. This Court cannot grant such relief by modifying the consent decree.

To the extent that the LDF feels that discrimination in the industry continues, despite the attainment of the 25% goal, it is free to bring a new action for the relief it seeks. Indeed, if discrimination is as rampant as the LDF asserts after eighteen years of the Consent Decree, it would be manifest that the Decree has been "insufficient to end discrimination in the industry" and that the LDF should, consistent with this Court's ruling, "bring a new action for the relief [it] seek[s]." Id. Because new suits may be directed against the NMDU alone or particular employers, enterprises that have achieved substantial minority presence in their work forces and police themselves in other relevant respects need not be entangled in such litigation.

Plaintiffs' Request that Certain Provisions be Retained

The Times argues that the termination provisions of Paragraph 7, which provide the basis for extinguishing the Affirmative Action program, also apply to the remainder of the Consent Decree. The Times argues, therefore, that the Consent Decree must be vacated in its entirety. Both the EEOC and the LDF argue that each of the sections of the Settlement Agreement is independent and, consequently, paragraphs 15, 17, 20, 21, 28, 29, 30, 33, and 41 should be retained, either in part or in their entirety, irrespective of the disposition of the other parts of the Settlement Agreement. See EEOC Memo., dated June 27, 1991, at 15-21; LDF Memo., dated June 27, 1991, at 34-37. Nothing in the Settlement Agreement, however, supports, this type of cut and paste approach. The Settlement Agreement is one cohesive document the goal of which was to increase minority employment in the industry to 25%. The Agreement created the mechanism by which to reach that goal. Again, the parties to the Consent Decree could not have envisioned that jurisdiction here would be retained indefinitely so as to establish, in effect, a permanent system of court supervision of the industry — an ongoing burden of perhaps endless duration that should not be within the Court's ambit.

The Court cannot agree with the argument of the EEOC that retention of certain of these provisions is necessary since the purpose of the consent decree extends beyond the goal of 25% minority employment to remedying and preventing nepotism, cronyism and word-of-mouth hiring. EEOC Reply Memo., dated Aug. 19, 1991, at 4-9. The Settlement Agreement was obtained by the EEOC in the enforcement of Title VII with the express purpose of remedying and preventing race discrimination in the industry. Unless there is disparate impact on minority persons, nepotistic practices do not furnish the basis for finding a violation of Title VII. See, e.g., Scott v. Pacific Maritime Ass'n, 695 F.2d 1199, 1206-07 (9th Cir. 1983) (no violation of Title VII based on racial discrimination where plaintiffs failed to make prima facie showing of disparate impact in operation of union's permissive rule, providing that the son or daughter of a deceased longshoreman or clerk is to be granted Class B registration if he or she is the sole support of the deceased's widow and over the age of 18 years). Because minorities are not now underrepresented in the industry, nepotistic practices could, if they existed, advantage minority persons as much as non-minorities. The objective of the Consent Decree was the elimination of minority underrepresentation in the industry, and no more. Since the 25% goal has been attained, the Decree has served its purpose, and its vacation, consistent with the intent which accompanied its entry, is appropriate.

Nor is the retention of paragraphs 1 and 2 of the Settlement Agreement justified. Those paragraphs parallel federal law and prohibit discrimination against individuals on the basis of race, color, or national origin. While it is true that paragraphs 1 and 2 purport to enjoin defendants "permanently," the enforceability of these provisions is qualified. Both begin with the phrase "[s]ubject to the provisions herein." Accordingly, defendants are permanently enjoined from committing discriminatory acts "subject to" the other provisions of the Consent Decree. The only intelligible construction of this "subject to" language is that the non-discrimination provisions are binding upon defendants as long as the Consent Decree remains in effect — in other words, until the Court determines that the Consent Decree is no longer needed. In any event, paragraphs 1 and 2 do no more than prohibit conduct that is already prohibited by Title VII. Given this redundancy, there is no point in continuing those provisions after the remainder of the Consent Decree has been terminated.

The fact that paragraphs 1 and 2 are designated "permanent" is not a proscription against their termination. As the Supreme Court noted in Milk Wagon Drivers Union, Local 753 v. Meadowmoor Dairies, Inc., 312 U.S. 287, 298, 61 S.Ct. 552, 557, 85 L.Ed. 836 (1941):

The Injunction which we sustain is "permanent" only for the temporary period for which it may last. It is justified only by the [the circumstances] that induced it and only so long as it counteracts [those circumstances]. Familiar equity procedure assures opportunity for modifying or vacating an injunction when its continuance is no longer warranted.

Thus, the term "permanent" does not mean irrevocable in perpetuity, and the court has the power to vacate injunctive relief that nominally is "permanent."

Indeed, courts have indicated that permanent injunctive relief should be vacated when it requires nothing more than compliance with the law that was the source of its issuance. In S.E.C. v. Warren, 583 F.2d 115 (3d Cir. 1978), the Third Circuit ruled that the district court did not abuse it discretion in dissolving a permanent injunction which contained a restraint from future violations of the Securities Exchange Act. The court noted that:

In effect the injunction merely requires defendants to `obey the law in the future . . .' a requirement with which they must comply regardless of the injunction. Dissolution of the injunction decree removes the possibility of contempt proceedings in the event of a future violation; the right to prosecute . . . civilly still exists.

The terms and spirit of the Settlement Agreement, as well as the law of the case, dictate that the Consent Decree be extinguished upon attainment of the 25% target. That target having been attained, this Court hereby orders that the Consent Decree be vacated in its entirety. After eighteen years of Court and Administrator supervision, the goal has been achieved. Both equity and judicial economy dictate that the EEOC resume its role as the initial forum for review of allegations of discrimination under Title VII. As the Court of Appeals for the Sixth Circuit stated in Youngblood v. Dalzell, 925 F.2d 954 (6th Cir. 1991):

The concerns originally voiced in the decree may yet remain. . . . Yet our interest in seeing that the decree is not dissolved prematurely is coupled with a realization that not every wrong in the Cincinnati fire department can be righted by a decree which is now 17 years old, and the district court may find that other . . . litigation offers a better vehicle for addressing any alleged legal wrongs in the City's policies today once those initial goals have been achieved.

It must be emphasized that the termination of the Consent Decree does not alter defendants' substantive legal obligation to obey the law. Nor does vacating the Consent Decree permit defendants to discriminate against minorities in employment decisions. Title VII and other similar laws remain in effect and are fully applicable to defendants. As in all other sectors of the economy, aggrieved individuals will be able to take any complaints they may have to the EEOC, and ultimately to the courts if appropriate, for processing.

CONCLUSION

The Consent Decree is hereby vacated in its entirety. In order to affect an orderly winding down of the Administrator's office he is instructed to hear and decide all claims that have been instituted prior to the date of this Order. Until such cases are disposed of the Administrator's services shall be continued, but for the sole purpose of completing said cases. This Court shall retain jurisdiction over any appeals from those claims. No new claims shall be initiated or processed.

SO ORDERED.