John T. Dunlop, Secretary of Labor, United States Department of Labor v. Samuel G. Saghatelian, Individually and D/B/A Valley Bakery

On Denial of Motion for Reconsideration

Appellants have submitted a motion to this court for reconsideration of our decision denying rehearing en banc in the instant case, in light of the recent Supreme Court decision in Albemarle Paper Co. v. Moody, 422 U.S. 405 , 95 S.Ct. 2362 , 45 L.Ed.2d 280 (1975). The Albemarle case deals in part with the extent of the court’s discretion in refusing to issue a restitutionary injunction under Title VII for past racially discriminatory employment practices. We do not view our original opinion in the instant case (reported at 514 F.2d 619 , 9 Cir.) as inconsistent with the principles enunciated by the court in Albemarle.

The Supreme Court in Albemarle clearly indicates that the courts do retain some discretion concerning the issuance of restitutionary injunctions:

This equitable discretion is limited by the requirement that the “court must exercise this power ‘in light of the large objectives of the Act’.” (Id.):

We have no dispute with the holding in Albemarle that “The District Court’s decision must ... be measured against the purposes which inform [the Statute].” Analogizing from Albemarle to the instant case, we recognize that…