United States v. City of Hialeah ( 1998 )


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  • KRAVITCH, Senior Circuit Judge, dissenting:
    
          I agree that this court may review the decision of the
    
    district court refusing to approve the proposed consent decree, and
    
    accordingly I join Section III.A of the majority opinion.1             Because
    
    I disagree with the majority’s interpretation of the law and its
    
    resolution    of   the   merits   of    the     United    States’   appeal,   I
    
    respectfully dissent from Section III.B of the majority opinion.
    
    My resolution of the merits necessitates review of the cross-
    
    appeal; I therefore do not join Section III.C of the majority
    
    opinion.
    
                                           I.
    
                                           A.
    
          In its Order Denying Approval of the Settlement, the district
    
    court found that the United States had demonstrated a “valid basis
    
    for   the   race-conscious   relief         sought   in   the   Agreement”2   by
    
    
    
    
    1
      To supplement the majority’s discussion of Carson’s irreparable
    injury requirement, I add that to require the United States to
    litigate on the merits to resolve whether the seniority proposal is
    permissible would burden the class of discriminatees, see Carson v.
    Am. Brands, 
    450 U.S. 79
    , 89, 
    101 S. Ct. 993
    , 999 (1981) (stating
    that petitioners were harmed by inability to achieve “immediate
    restructuring of respondents' transfer and promotional policies”),
    undermine the policy of “make-whole” relief in Title VII cases, see
    Franks v. Bowman Transp. Co., 
    424 U.S. 747
    , 765-66, 
    96 S. Ct. 1251
    ,
    1265 (1976), and contradict the “strong preference for encouraging
    voluntary settlement of employment discrimination claims,” Carson,
    450 U.S. at 88 n.14, 101 S. Ct. at 998 n.14.
    2
        Order at 7.
    
                                           1
    demonstrating       a   “gross   statistical   disparity”3     and   thus
    
    establishing a prima facie case of discrimination.4          The district
    
    court concluded, however, that it could not “bind non-consenting
    
    parties to a consent decree”5 and, alternatively, that the proposed
    
    settlement agreement was not fair to incumbent employees.6            The
    
    majority concludes that the district court was correct because a
    
    district court may not approve “a proposed consent decree . . . if
    
    it would affect the legal rights of the objecting parties.”
    
    Because I believe that both rationales advanced by the district
    
    court were based upon incorrect interpretations of the law and that
    
    the majority rests its affirmance upon a similarly flawed basis, I
    
    would reverse the order refusing to approve the consent decree.
    
          The majority relies upon White v. Alabama, 
    74 F.3d 1058
     (11th
    
    Cir. 1996), and United States v. City of Miami, 
    664 F.2d 435
    
    (Former 5th Cir. 1981) (en banc), for the proposition that “parts
    
    
    3
      Id. at 9. The United States proffered statistical evidence in
    the affidavit of Marian Thompson, Ph.D., which showed, inter
    alia, that at the time of the fairness hearing in 1994 only one
    of the 235 members of the fire department was black; that none of
    the 124 entry-level firefighters was black; that only five of the
    313 sworn police department employees were black; and that only
    four of the 240 entry-level police officers were black. See U.S.
    Reply Br. at 8; R. 2-18, attachment A at 2 n.1 and 8-9 n.4. The
    affidavit averred that the relevant labor market was either 17.2%
    black or 16.1% black, depending upon which definition of the
    labor market was used.
    4
        Order at 8.
    5
        Id. at 12-13.
    6
        Id. at 15.
    
                                        2
    of [a] decree [that] affect [a] third party who did not consent to
    
    it . . . cannot properly be included in a valid consent decree.”
    
    City of Miami, 664 F.2d at 442.
    
         City of Miami, however, recognized that a consent decree can
    
    abridge the contractual rights of a nonconsenting party, as long as
    
    there has been a “trial or examination” before the district court
    
    to determine whether the remedy sought is justified by past
    
    discrimination. 664 F.2d at 447. In City of Miami, the challenged
    
    consent   decree   would   have   entitled    members    of   the   class   of
    
    discriminatees who had not taken the civil service test to receive
    
    promotions ahead of employees who had taken and passed the test.
    
    The decree was challenged by employees who claimed that their
    
    collective bargaining rights would be impaired by the decree.               The
    
    mandate of the court of appeals required modification of the decree
    
    to provide that it would not affect promotion rights of the
    
    objecting   employees.     The    appellate   court     reasoned    that    the
    
    district court failed to find past discrimination by the City that
    
    would justify the remedies in the consent decree and, a fortiori,
    
    would justify an abridgment of the interests of non-consenting
    
    third parties.     Id. at 447.    The court stated:
    
         The right to promotion on the basis of test accomplishment may
         not be obliterated without a demonstration that the City has,
         in making promotions, discriminated against members of the
         affected classes in the past and that affirmative action is a
         necessary or appropriate remedy or that it has so
         discriminated in employment policy as to unfairly prejudice
         the opportunity of the affected class to achieve promotions.
    
    
                                         3
    Id. at 446-47 (Rubin, J., concurring).          The court concluded that
    
    “[t]hose who seek affirmative remedial goals that would adversely
    
    affect   other   parties   must   demonstrate    the   propriety   of   such
    
    relief.”   Id. at 447.      The court did not hold, however, that a
    
    consent decree that affects the contractual rights of nonconsenting
    
    parties categorically is unlawful.        Rather, the court expressly
    
    held that a sufficient showing of past discrimination by the United
    
    States would justify relief sought on behalf of the discriminatees.
    
    See id. (“If, on remand, the United States shows that the City’s
    
    practices have discriminated against individuals in or members of
    
    the affected class in such a way as adversely to affect their
    
    promotions, the district court shall fashion an appropriate remedy
    
    invoking its ‘sound equitable discretion.’”) (quoting Franks v.
    
    Bowman Transp. Co., 
    424 U.S. 747
    , 770, 
    96 S. Ct. 1251
    , 1267
    
    (1976)).
    
         Five years after the court decided City of Miami, the Supreme
    
    Court confirmed that a court may enter a consent decree despite the
    
    objections of a party to the action.       In Local No. 93 v. City of
    
    Cleveland, 
    478 U.S. 501
    , 
    106 S. Ct. 3063
     (1986), the Court held
    
    that an intervening union's consent was not required to obtain
    
    court approval of a consent decree that arguably affected the
    
    contractual rights of the union’s members.         As in the case before
    
    us, the class of plaintiff-discriminatees and the city in Local No.
    
    93 agreed to enter a consent decree providing remedial relief --
    
    
                                         4
    including reserved planned promotions for minority employees and
    
    modification of the application of the seniority system to benefit
    
    discriminatees7 -- to which the union objected.   The Court stated:
    
         It has never been supposed that one party -- whether an
         original party, a party that was joined later, or an
         intervenor -- could preclude other parties from settling their
         own disputes and thereby withdrawing from litigation. Thus,
         while an intervenor is entitled to present evidence and have
         its objections heard at the hearings on whether to approve a
         consent decree, it does not have power to block the decree
         merely by withholding its consent.
    
    
    Id. at 528-29, 106 S. Ct. at 3079.8     The Court was careful to
    
    distinguish between consent decrees that “impose[] obligations on
    
    a party that did not consent to the decree” or that dispose of a
    
    nonconsenting party’s legal claims for relief, id. at 529, 106 S.
    
    Ct. at 3079 (emphasis added), and those that merely affect a
    
    
    7
       The United States notes that the contested remedy in the case
    sub judice -- retroactive remedial seniority -- is less far-
    reaching than the remedy in Local No. 93, which was extended to
    individuals who were not actual victims of the City's
    discriminatory practices.
    8
      The majority recites this language, yet renders it fully without
    content by reading this circuit’s precedent to mean that “the
    objection of a party whose rights or claims would be adversely
    affected does bar a proposed consent decree.” The majority relies
    upon City of Miami, decided five years before the Supreme Court’s
    decision in Local No. 93. Even if City of Miami had held that a
    mere adverse effect upon contractual expectations of an objecting
    party were sufficient to preclude entry of an otherwise valid
    consent decree -- a reading of City of Miami that I believe is
    incorrect, see supra, Section I.A.-- that holding was overruled in
    Local No. 93. Although White, the only other Eleventh Circuit case
    relied upon by the majority, was decided after Local No. 93, a
    close reading of that case makes clear that it, too, is not
    inconsistent with Local No. 93 and does not support the majority’s
    position. See infra.
    
                                    5
    nonconsenting party.      The Court explained:
    
         Of course, parties who choose to resolve litigation through
         settlement may not dispose of the claims of a third party, and
         a fortiori may not impose duties or obligations on a third
         party, without that party's agreement. A court's approval of
         a consent decree between some of the parties therefore cannot
         dispose of the valid claims of nonconsenting intervenors; if
         properly raised, these claims remain and may be litigated by
         the intervenor.    And, of course, a court may not enter a
         consent decree that imposes obligations on a party that did
         not consent to the decree.      However, the consent decree
         entered here does not bind Local No. 93 to do or not to do
         anything. It imposes no legal duties or obligations on the
         Union at all . . . .
    
    Id. at 529-30, 106 S. Ct. at 3079 (citations omitted).          Therefore,
    
    a consent decree that “does not bind [the non-consenting party] to
    
    do or not to do anything,” id. at 529-30, 106 S. Ct. at 3079, and
    
    that does not impose any “legal duties or obligations” upon that
    
    party -- duties the breach of which could lead to “contempt of
    
    court for failure to comply with its terms,” id. at 530, 106 S. Ct.
    
    at 3079 -- is not invalid.            Likewise, a decree that does not
    
    impermissibly   dispose    of   the    valid   claims   for   relief   of   a
    
    nonconsenting party is lawful.
    
         The consent decree at issue here, like the decree at issue in
    
    Local No. 93,9 does not impose any legal obligations upon the
    
    
    9
       Contrary to the majority’s contention, it appears that the
    intervening union in Local No. 93 asserted interests similar to
    those asserted by the intervenors here. See Local No. 93, 478 U.S.
    at 507, 106 S. Ct. at 3067 (noting that union contended that
    consent decree would “deny those most capable from [sic] their
    promotions”) (emphasis added); Vanguards of Cleveland v. City of
    Cleveland, 
    753 F.2d 479
    , 484-85 (6th Cir. 1985) (noting that union
    claimed that consent decree’s affirmative action plan “penalizes
    innocent non-minority firefighters” and stating that “[s]ince non-
    
                                           6
    nonconsenting parties.    The appellees would not be required by the
    
    decree “to do or not to do anything.”     Local No. 93, 478 U.S. at
    
    530, 106 S. Ct. at 3079.      Nor do the objectors have any legal
    
    claims for relief that could be disposed of by the proposed consent
    
    decree.   Appellees became parties to this action solely to voice
    
    their views on the fairness of the settlement; they have at no time
    
    during this litigation asserted “a cause of action in [their] own
    
    right[,] and [they] could not prosecute reverse discrimination
    
    claims (of [their] members) that [have] not yet arisen.”    White v.
    
    Alabama, 
    74 F.3d 1058
    , 1075 n.53 (11th Cir. 1996); cf. Kirkland v.
    
    N.Y. State Dept. of Correctional Serv., 
    711 F.2d 1117
    , 1126 (2d
    
    Cir. 1983) (approving of district court’s decision to let non-
    
    minorities intervene “for the sole purpose of objecting to the
    
    settlement”; stating that “although non-minority third parties
    
    allowed to intervene in cases which involve consent decrees or
    
    settlement   agreements   implementing   race-conscious   hiring   or
    
    promotional remedies do have a sufficient interest to argue that
    
    the decree or agreement is unreasonable or unlawful, their interest
    
    in the expectation of appointment does not require their consent as
    
    a condition to any voluntary compromise of the litigation”).
    
    
    
    minorities do not have a legally protected interest in promotions
    which could only be made pursuant to discriminatory employment
    practices, it follows that the legal rights of non-minorities will
    not be adversely affected by reasonable and lawful race-conscious
    hiring or promotional remedies”) (emphasis in original), aff’d,
    Local No. 93, supra.
    
                                      7
    Instead, their argument is that their contractual rights will be
    
    adversely affected by the decree.
    
            That argument, however, is foreclosed not only by Local No.
    
    93, see 478 U.S. at 528, 106 S. Ct. at 3078-79 (holding that
    
    argument that “because the Union was permitted to intervene as of
    
    right, its consent was required before the court could approve the
    
    consent decree . . . misconceives the Union’s rights in the
    
    litigation”), but also by the Supreme Court’s opinion in Franks v.
    
    Bowman Transp. Co., 
    424 U.S. 747
    , 
    96 S. Ct. 1251
     (1976), which
    
    stands for the proposition that a third party cannot block approval
    
    of a consent decree merely because the party will be “affected” by
    
    the decree. In Franks, the Court held that retroactive competitive
    
    seniority relief -- the relief challenged in the case sub judice --
    
    was     necessary   to   ensure   full   relief   for   the   victims   of
    
    discrimination.     Id. at 771, 96 S. Ct. at 1267.      The union in that
    
    case, like the appellees in the case before us, objected to
    
    retroactive competitive seniority benefits for the discriminatees,
    
    claiming that such relief would affect the rights of employees who
    
    had not been victims of discrimination.       Id. at 773, 96 S. Ct. at
    
    1268.     The Court stated:
    
            Certainly, there is no argument that the award of retroactive
            seniority to victims of hiring discrimination in any way
            deprives other employees of indefeasibly vested rights
            conferred by the employment contract. This Court has long
            held that employee expectations arising from a seniority
            system agreement may be modified by statutes furthering a
            strong public policy interest.
    
    
                                         8
    Id. at 778, 96 S. Ct. at 1271.10           Because claims under Title VII
    
    “involve the vindication of a major public interest,” id. at 778
    
    n.40, 96 S. Ct. at 1271 n.40 (quoting Section-By-Section Analysis
    
    of H.R. 1746, accompanying the Equal Employment Opportunity Act of
    
    1972    Conference    Report,    118   Cong.Rec.    7166,   7168    (1972)),
    
    appellees’    assertion   that    an   award   of   retroactive    seniority
    
    benefits    impairs   their     contractual    rights   cannot     defeat   an
    
    otherwise valid consent decree.11          Rather, to object successfully
    
    
    10
         The Court explained:
    
           [I]t is apparent that denial of seniority relief to
           identifiable victims of racial discrimination on the sole
           ground that such relief diminishes the expectations of other,
           arguably innocent, employees would if applied generally
           frustrate the central “make-whole” objective of Title VII.
           These conflicting interests of other employees will, of
           course, always be present in instances where some scarce
           employment benefit is distributed among employees on the basis
           of their status in the seniority hierarchy. . . .
           Accordingly, we find untenable the conclusion that this form
           of relief may be denied merely because the interests of other
           employees may thereby be affected.
    
    Franks, 424 U.S. at 774-75, 96 S. Ct. at 1269.
    11
       The appellees’ -- and the majority’s -- reliance upon contract
    expectations protected by Florida law thus is unavailing.       The
    economic expectations of the current employees and provisions of
    Florida law protective of employment benefits cannot trump the
    rights granted to all workers by Congress in Title VII. See U.S.
    Const. art. VI. Moreover, the majority’s insistence that appellees
    would be unfairly burdened by the proposed consent decree ignores
    the impact of the City’s past discrimination upon the seniority
    ladder appellees seek to protect. The controversial provision in
    the consent decree awarding retroactive seniority would merely
    restore incumbent employees to the place in the hierarchy that they
    would have occupied absent discrimination. See Franks, 424 U.S. at
    767, 96 S. Ct. at 1265 (“A concomitant award of the seniority
    credit [that a discriminatee] presumptively would have earned but
    
                                           9
    to a decree between consenting parties, the objecting party must
    
    show that the challenged consent decree has disposed of a legal
    
    claim or imposed legal obligations or duties upon that party. This
    
    appellees have not done.
    
             The majority’s reliance upon White v. Alabama, 
    74 F.3d 1058
    
    (11th Cir. 1996), is misplaced, as well.            In White, a class of
    
    African-American voters sued alleging that the at-large scheme for
    
    electing state appellate judges diluted the voting strength of
    
    African-American voters, and the class requested relief in the form
    
    of   a    proportional   representation   scheme.      Another   plaintiff
    
    intervened, purporting to represent a class of African-American
    
    voters and seeking single-member districts.          The court of appeals
    
    invalidated a final order of the district court that the parties to
    
    the case categorized as a consent decree; the order would have
    
    provided in large part the relief sought by the initial class of
    
    plaintiffs and thus would have denied the relief sought by the
    
    
    
    for the wrongful treatment would also seem necessary in the absence
    of justification for denying that relief.”).        The majority’s
    suggestion that the rights of incumbent employees would be
    diminished by the decree much as would be “the rights of a
    pedestrian in a crosswalk . . . by a runaway truck” ignores the
    actual victims of discrimination in this case, who merely hope to
    obtain the relief that Congress has provided and that the Supreme
    Court unequivocally has stated is available to victims of illegal
    discrimination. See id. at 774, 96 S. Ct. at 1269. Indeed, “the
    State has the power to eradicate racial discrimination and its
    effects in both the public and private sectors, and the absolute
    duty to do so where those wrongs were caused intentionally by the
    State itself.” City of Richmond v. J.A. Croson Co., 
    488 U.S. 469
    ,
    518, 
    109 S. Ct. 706
    , 735 (1989) (Kennedy, J., concurring in part).
    
                                       10
    intervenors despite their objections to the decree.    The court of
    
    appeals invalidated the decree approved by the district court
    
    because it would have “provide[d] relief beyond that authorized by
    
    Congress” in the Voting Rights Act.   White, 74 F.3d at 1074.    In
    
    addition, and of relevance to the appeal before us, the court in
    
    White distinguished Local No. 93 because the objecting party in
    
    White was a plaintiff prosecuting a cause of action.    Whereas in
    
    Local No. 93 the “union’s sole reason for intervening in the case
    
    . . . was to protest the settlement,” White, 74 F.3d at 1075 n.53,
    
    in White the settlement would have disposed of a cause of action
    
    properly raised in the objector’s pleadings, see id. at 1073 n.49
    
    (noting that the nonconsenting party intervened as a plaintiff and
    
    filed a complaint alleging that “he represented a class consisting
    
    of all of Alabama’s black voters” and seeking relief in the form of
    
    an order mandating single-member districts for the election of
    
    Alabama appellate judges, relief that was “totally inconsistent”
    
    with that sought by the other plaintiff class).
    
         White thus recognized the uncontroversial proposition that a
    
    court may not resolve by a settlement order the pleaded claims for
    
    relief of a party before the court without that party’s consent.
    
    See Local No. 93, 478 U.S. at 529, 106 S. Ct. at 3079 (“A court’s
    
    approval of a consent decree between some of the parties therefore
    
    cannot dispose of the valid claims of nonconsenting intervenors; if
    
    properly raised, these claims remain and may be litigated by the
    
    
                                    11
    intervenor.”).       In the case before us, however, the objecting
    
    parties did not present any claim for relief to the district court,
    
    but rather joined the action solely to protest the proposed
    
    settlement.      Local No. 93 expressly held that the refusal of such
    
    a party to consent to a proposed settlement does not invalidate the
    
    agreement, as long as the party had a chance to “present evidence
    
    and have its objections heard at the hearings on whether to approve
    
    the consent decree.”      Local No. 93, 478 U.S. at 529, 106 S. Ct. at
    
    3079.     The district court thus erred in concluding that it could
    
    not approve the consent decree over appellees’ objections.
    
    
    
                                        B.
    
            The   majority   holds   that   the    contractual   rights   of   the
    
    objecting parties -- parties who are not prosecuting a legal claim
    
    for relief in this action, see White, 74 F.3d at 1075 n.53, and who
    
    thus cannot preclude entry of the consent decree, see Local No. 93,
    
    478 U.S. at 528-29, 106 S. Ct. at 3079 -- may be affected only
    
    after a “trial on the merits.”               In Local No. 93, however, the
    
    Supreme Court squarely held that the union that objected to the
    
    consent decree could not preclude its entry simply because there
    
    had been no trial on the merits.              The district court’s fairness
    
    hearing in that case sufficed to justify entry of the decree,
    
    notwithstanding the union’s argument that it would affect the
    
    contractual expectations of its members.            The Court stated:
    
    
                                            12
         Here, Local No. 93 took full advantage of its opportunity to
         participate in the District Court’s hearings on the consent
         decree.   It was permitted to air its objections to the
         reasonableness of the decree and to introduce relevant
         evidence; the District Court carefully considered these
         objections and explained why it was rejecting them.
         Accordingly, “the District Court gave the union all the
         process that it was due . . . .”
    
    478 U.S. at 529, 106 S. Ct. at 3079 (quoting Zipes v. Trans World
    
    Airlines, Inc., 
    455 U.S. 385
    , 400, 
    102 S. Ct. 1127
    , 1136 (1982)).
    
    As in the case sub judice, the district court in Local No. 93 had
    
    conducted a fairness hearing to consider the propriety of the
    
    proposed consent decree.   See Local No. 93, 478 U.S. at 508, 106 S.
    
    Ct. at 3068.   It is clear, then, that a district court may enter a
    
    consent decree despite the objections of a party after conducting
    
    a fairness hearing at which the objector “is entitled to present
    
    evidence and have its objections heard,”12 Local No. 93, 478 U.S.
    
    at 529, 106 S. Ct. at 3079, even if the decree modifies “employee
    
    
    12
       Local No. 93 did not create a broad right of intervenors to a
    quasi-trial, but rather simply required a district court conducting
    a fairness hearing to allow a party objecting to a proposed
    settlement agreement to “present evidence and have its objections
    heard.” 478 U.S. at 529, 106 S. Ct. at 3079. Contrary to the
    assertion of the majority, the district court thus was under no
    obligation to permit the Suau objectors to cross-examine the United
    States’ expert witness or to conduct discovery. The majority also
    suggests that the Suau objectors were not permitted to offer
    statistical evidence of their own. This assertion finds no support
    in the record; indeed, the Suau objectors do not contend on appeal
    that they were denied the opportunity to “present evidence and have
    [their] objections heard” because they were given an opportunity to
    do so at the fairness hearing. See R3 at 22-29 (transcript of
    8/11/94 fairness hearing). Moreover, the Suau objectors in fact
    presented their objections to the proposed consent decree and filed
    a notice of their objections with the district court. See Order at
    5.
    
                                     13
    expectations arising from a seniority system agreement,” Franks,
    
    424 U.S. at 778, 96 S. Ct. at 1271.13   City of Miami is not to the
    
    
    13
        In addition, a finding by the district court of a prima facie
    case of discrimination that is supported by the record is
    sufficient to justify race-conscious relief.        See Howard v.
                                      th
    McLucas,871 F.2d 1000, 1006 (11      Cir.), cert. denied, 
    493 U.S. 1002
    , 
    110 S. Ct. 560
     (1989); Kirkland, 711 F.2d at 1130 (“[A]
    showing of a prima facie case of employment discrimination through
    a statistical demonstration of disproportionate racial impact
    constitutes a sufficiently serious claim of discrimination to serve
    as a predicate for a voluntary compromise containing race-conscious
    remedies.”); see also Croson, 488 U.S. at 500, 109 S. Ct. at 725
    (holding that city set-aside plan lacked strong basis in evidence
    because “there [was] nothing approaching a prima facie case of
    constitutional or statutory violation by anyone in the Richmond
    construction industry”); Wygant v. Jackson Bd. of Educ., 
    476 U.S. 267
    , 277, 
    106 S. Ct. 1842
    , 1848 (1986) (holding that district court
    should respond to challenge to race-conscious relief by making “a
    factual determination that the employer had a strong basis in
    evidence for its conclusion that remedial action was necessary”).
    The district court's finding of a prima facie case in the case
    before us was made in the course of consideration of the proposed
    settlement agreement. A district court's task in reviewing such an
    agreement is to ascertain that “the proposal represents a
    reasonable factual and legal determination based on the facts of
    the record, whether established by evidence, affidavit, or
    stipulation” and that any effect on third parties is “neither
    unreasonable nor proscribed.”     City of Miami, 664 F.2d at 441;
    accord City of Alexandria, 614 F.2d at 1362. In this case, the
    district court's reliance upon the statistical evidence presented
    in an affidavit by an expert represented “a reasonable factual and
    legal determination” as a predicate for a decision whether to
    approve a settlement agreement. City of Miami, 664 F.2d at 441.
    Moreover, the district court’s finding is supported by the record.
    The statistical evidence showed a stark disparity between the
    percentage of blacks available in the relevant labor markets and
    the number of blacks employed.        See supra, Section I.A n.3;
    Hazelwood Sch. Dist. v. United States, 
    433 U.S. 299
    , 307-308, 97 S.
    Ct. 2736, 2741 (1977) (“Where gross statistical disparities can be
    shown, they alone may in a proper case constitute prima facie proof
    of a pattern or practice of discrimination.”); Int’l Bhd. of
    Teamsters v. United States, 
    431 U.S. 324
    , 339-340 n.20, 
    97 S. Ct. 1843
    , 1856 n.20 (1977). Appellees’ argument that the United States
    did not establish an evidentiary basis sufficient to justify race-
    conscious relief thus is without merit.
    
                                    14
    contrary, see 664 F.2d at 447 (“[I]n the absence of either a trial
    
    or an examination . . . by the district court, we are not prepared
    
    to hold that the consent decree is valid insofar as it deprives the
    
    [union] and its members of the benefit of the promotion procedure
    
    . . . .”) (emphasis added), and, to the extent that the majority
    
    reads it to be so, it cannot bind this court, see Local No. 93, 478
    
    U.S. at 529, 106 S. Ct. at 3079.       The district court’s conclusion
    
    that it lacked the authority to approve the proposed consent decree
    
    under these circumstances14 thus was erroneous.
    
                                      C.
    
         The district court also based its decision refusing to approve
    
    the proposed consent decree upon a finding that the decree was
    
    unfair to incumbent employees. Because the majority concludes that
    
    the consent decree impermissibly would have compromised the rights
    
    of the objectors, the majority does not decide whether the district
    
    court’s conclusion that the decree was unfair is supportable under
    
    applicable law.   Because I believe that the majority’s conclusion
    
    is incorrect, I address the district court’s alternative basis for
    
    refusing to approve the decree.
    
         The Supreme Court stated in Franks that
    
         the denial of seniority relief to victims of illegal racial
         discrimination in hiring is permissible “only for reasons
         which, if applied generally, would not frustrate the central
    
    
    14
       See Order at 12-13 (“The Court finds that approval in the face
    of these objections would not be appropriate because the Court
    cannot bind non-consenting parties to a consent decree.”).
    
                                           15
           statutory purposes of eradicating discrimination throughout
           the economy and making persons whole for injuries suffered
           through past discrimination.”
    
    
    424 U.S. at 771, 96 S. Ct. at 1267 (quoting Albermarle Paper Co. v.
    
    Moody, 
    422 U.S. 405
    , 421, 
    95 S. Ct. 2362
    , 2373 (1975)).                    Indeed,
    
    the Court stated that “the issue of seniority relief cuts to the
    
    very heart of Title VII's primary objective of eradicating present
    
    and future discrimination in a way that backpay, for example, can
    
    never do.”    Id. at 768 n.28, 96 S. Ct. at 1266 n.28.            “[O]rdinarily
    
    such relief will be necessary to achieve the 'make-whole' purposes
    
    of [Title VII].”       Id. at 766, 95 S. Ct. at 1265.
    
           The district court here held that the proposed agreement was
    
    unfair to incumbent employees because it would have an “unusual,
    
    adverse impact.”15 Specifically, the district court relied in large
    
    part   upon   its     conclusion   that      incumbent    employees'   “vested,
    
    contractual rights will be diminished.”16                As the United States
    
    argues, however, contractual rights of the incumbent employees
    
    would not be altered under the proposed agreement; rather only the
    
    relative position of those employees in the hierarchy would be
    
    affected   --   and    no   more   so   than   would     have   occurred    absent
    
    discrimination.        Cf. Franks, 424 U.S. at 767, 96 S. Ct. at 1265
    
    (“A concomitant award of the seniority credit he presumptively
    
    
    
    15
         Order at 17.
    16
         Order at 16.
    
                                            16
    would have earned but for the wrongful treatment would also seem
    
    necessary     in    the   absence   of    justification    for   denying   that
    
    relief.”).       The Court explained,
    
            [I]t is apparent that denial of seniority relief to
            identifiable victims of racial discrimination on the sole
            ground that such relief diminishes the expectations of other,
            arguably innocent, employees would if applied generally
            frustrate the central “make-whole” objective of Title VII.
            These conflicting interests of other employees will, of
            course, always be present in instances where some scarce
            employment benefit is distributed among employees on the basis
            of their status in the seniority hierarchy. . . .
            Accordingly, we find untenable the conclusion that this form
            of relief may be denied merely because the interests of other
            employees may thereby be affected.
    
    
    Franks, 424 U.S. at 774-75, 96 S. Ct. at 1269.
    
            The district court also based its conclusion upon the “strong
    
    likelihood . . . that an atmosphere of hostility and animosity
    
    would arise between the incumbent employees and the incoming victim
    
    class.”17    The opposition or hostility of incumbent employees to
    
    remedial measures for victims of discrimination, however, is not a
    
    valid basis upon which to deny relief.            See, e.g., Local No. 93,
    
    478 U.S. at 511, 106 S. Ct. at 3069 (affirming district court’s
    
    approval of consent decree despite union’s objection that relief
    
    would    cause     “serious   racial     polarization”);   Equal   Employment
    
    Opportunity Comm’n v. Rath Packing Co., 
    787 F.2d 318
    , 335 (8th Cir.)
    
    (holding that district court abused its discretion in denying
    
    retroactive seniority and rejecting employer's claim that relief
    
    
    17
         Order at 18.
    
                                             17
    would “lower employee morale” because “[t]hese consequences can be
    
    expected in almost all Title VII cases”), cert. denied, 
    479 U.S. 910
    , 
    107 S. Ct. 307
     (1986).
    
         The district court's reasons for finding that the proposed
    
    settlement agreement was unfair thus lack a basis in law. Although
    
    the standard of appellate review of a district court's refusal to
    
    approve a consent decree is “not crystal clear,” see Stovall, 117
    
    F.3d at 1240, a district court’s order premised solely upon an
    
    erroneous interpretation of the law merits reversal whether the
    
    court of appeals reviews the decision de novo or for abuse of
    
    discretion.18      This is particularly so in light of Congress’s
    
    “strong    preference   for   encouraging    voluntary    settlement   of
    
    employment discrimination claims,” see Carson, 450 U.S. at 88 n.14,
    
    101 S. Ct. at 998 n.14, a preference that could be defeated if
    
    district courts were given unbridled discretion “to impose their
    
    views of reasonableness . . . on settlements reached by the
    
    government agencies responsible for the enforcement of Title VII
    
    rights,” City of Alexandria, 614 F.2d at 1362.               Because the
    
    district   court    erroneously   believed   that   the   consent   decree
    
    
    
    18
        In Stovall v. City of Cocoa, 
    117 F.3d 1238
    , 1240 (11th Cir.
    1997), the court concluded that a court of appeals should “tailor
    the standard of review to the district court’s rationale for
    rejecting the proposed consent decree.” The court distinguished a
    legal determination by the district court “that a proposed decree
    would be unlawful,” which should be subject to de novo review, from
    “a conclusion that a proposed decree would be unreasonable or
    unfair,” which should be reviewed for abuse of discretion. Id.
    
                                       18
    impermissibly would burden the appellees' rights, misapprehended
    
    the law with respect to non-consenting parties and consent decrees,
    
    yet   made   findings   adequate   to    support   remedial   retroactive
    
    seniority for the victims of discrimination, I would hold that the
    
    district court's decision refusing to approve the consent decree
    
    should be reversed.
    
                                       II.
    
          Because the majority affirms the district court’s judgment
    
    refusing to approve the consent decree, the majority does not
    
    address the cross-appeal of the Suau objectors, who contend that
    
    the district court erred in concluding that the United States
    
    demonstrated a prima facie case of discrimination. I disagree with
    
    the majority’s resolution of the merits of the United States’
    
    appeal, however, and accordingly conclude that the cross-appeal is
    
    not moot and should be addressed.
    
          The United States contends that this court lacks jurisdiction
    
    over the Suau objectors' cross-appeal challenging the district
    
    court's finding of a prima facie case of discrimination because the
    
    objectors do not appeal from a final order, see 28 U.S.C. § 1291,
    
    or from an order denying them injunctive relief, see 28 U.S.C. §
    
    1292(a)(1); Carson, supra.     Because the Suau objectors do not --
    
    and could not -- claim that the district court's finding that the
    
    United States established a prima facie case was a final order
    
    under section 1291, they can seek appellate review of that finding
    
    
                                       19
    only if the finding independently satisfies section 1292(a)(1),
    
    discussed supra, or if the finding is so related to the ruling
    
    appealed by the United States as to be “inextricably intertwined”
    
    with that ruling.    See Swint v. Chambers County Commission, 
    514 U.S. 35
    , 
    115 S. Ct. 1203
    , 1212 (1995).
    
         This    court   lacks     jurisdiction   over   the   cross-appeal
    
    independent of its jurisdiction over the United States' appeal
    
    because a finding that the United States established a prima facie
    
    case of discrimination is not a denial of injunctive             relief
    
    appealable   under   section    1292(a)(1).    See   Equal   Employment
    
    Opportunity Comm’n v. Pan Am. World Airways, Inc., 
    796 F.2d 314
    ,
    
    316-17 (9th Cir. 1986), cert. denied, 
    479 U.S. 1030
    , 
    107 S. Ct. 874
    
    (1987); accord Shee Atika v. Sealaska Corp., 
    39 F.3d 247
    , 249 (9th
    
    Cir. 1994). This court thus can entertain the cross-appeal only if
    
    it is essential to the resolution of, or inextricably intertwined
    
    with, the United States' appeal.
    
         In Swint, the Supreme Court reversed a decision of a panel of
    
    the Eleventh Circuit that impermissibly had exercised appellate
    
    jurisdiction over a claim merely pendent to a reviewable collateral
    
    order.   Although recognizing that the Court had not “universally
    
    required courts of appeals to confine review to the precise
    
    decision independently subject to appeal,” 115 S. Ct. at 1211, the
    
    Court made clear that “there is no 'pendent party' appellate
    
    jurisdiction,” id. at 1212.      The Court did not settle “whether or
    
    
                                        20
    when it may be proper for a court of appeals with jurisdiction over
    
    one ruling to review, conjunctively, related rulings that are not
    
    themselves independently appealable,” id., because the parties in
    
    Swint did not -- and could not -- contend that the district court
    
    decision   in    question      was   “inextricably         intertwined”    with   the
    
    decision over which the court of appeals properly had jurisdiction
    
    or that “the former decision was necessary to ensure meaningful
    
    review   of     the   latter,”       id.        Although    the   Court   in    Swint
    
    specifically addressed the scope of appellate jurisdiction over
    
    collateral orders, see Cohen v. Beneficial Indus. Loan Corp., 
    337 U.S. 541
    , 
    69 S. Ct. 1221
     (1949), the language of the opinion is
    
    broad enough to encompass appeals brought pursuant to section
    
    1292(a)(1) as well.
    
         It is a close question whether this court enjoys appellate
    
    jurisdiction     over    the    cross-appeal.          In    determining       whether
    
    resolution of the correctness of the district court’s finding that
    
    the United States established a prima facie case of discrimination
    
    is “necessary to ensure meaningful review” of the United States’
    
    appeal, Swint, 115 S. Ct. at 1212, over which we have jurisdiction,
    
    this court should consider whether the district court’s conclusion
    
    effectively is a predicate to our conclusion on the merits of the
    
    United States’ appeal.         Because an evaluation of the merits of the
    
    United   States'      appeal   necessarily        involves    reference    to,    and
    
    reliance upon, the district court's finding that the United States
    
    
                                               21
    established a prima facie case justifying race-conscious relief,
    
    see supra, Section I.C n.13, this court arguably can exercise
    
    appellate jurisdiction over the cross-appeal.
    
         Of course, as the United States argues, the Suau objectors'
    
    cross-appeal may be characterized more properly as an alternative
    
    argument for affirmance in the main appeal, in which case this
    
    court may review the claim.           Because the Supreme Court in Swint
    
    made clear that a court of appeals should not readily exercise
    
    jurisdiction   over    “related       rulings    that    are    not    themselves
    
    appealable,”   115    S.   Ct.   at   1212,     and   because   I     address   the
    
    substance of the cross-appeal in my discussion of the merits of the
    
    United States’ appeal, see supra, Section I.C n.13, I would hold
    
    that this court lacks the authority to review independently the
    
    district court’s conclusion that the United States established a
    
    prima facie case of discrimination.
    
                                          III.
    
         In my view, the majority has misapplied the law in affirming
    
    the district court’s refusal to approve the proposed consent
    
    decree.   Because I believe that the proposed decree permissibly
    
    would provide relief for the victims of discrimination and that the
    
    district court lacked a basis in controlling law to refuse to
    
    approve the decree, I would reverse the decision of the district
    
    court and remand with instructions for the court to approve the
    
    proposed decree.
    
    
                                           22
         Accordingly, I respectfully DISSENT from Sections III.B and
    
    III.C of the majority opinion.
    
    
    
    
                                     23