United States v. City of Hialeah ( 1998 )


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  •                                                      [PUBLISH]
    
    
                   IN THE UNITED STATES COURT OF APPEALS
    
                         FOR THE ELEVENTH CIRCUIT
    
                                No. 94-5083
    
    
                      D.C. Docket No. 94-1140-CV-SH
    
    
    UNITED STATES OF AMERICA,
                                                    Plaintiff-Appellant,
                                                         Cross-Appellee,
    
    
                                  versus
    
    CITY OF HIALEAH, RAUL L. MARTINEZ, Mayor
    (in his official capacity), HIALEAH
    PERSONNEL BOARD, et al.,
                                                 Defendants-Appellees,
    
    RAFAEL SUAU,
                                                     Defendant-Appellee,
                                                        Cross-Appellant.
    
    
                        __________________________
    
              Appeals from the United States District Court
                   for the Southern District of Florida
                        __________________________
                               (May 7, 1998)
    
    Before CARNES, Circuit Judge, KRAVITCH and REAVLEY*, Senior Circuit
    Judges:
    
    
    
    
    CARNES, Circuit Judge:
    
         The United States appeals the district court’s refusal to
    
    approve part of a consent decree it negotiated with the City of
    
         *
          Honorable Thomas M. Reavley, Senior U.S. Circuit Judge for
    the Fifth Circuit, sitting by designation.
    Hialeah, Florida.       The underlying lawsuit claims that the City
    
    discriminated against blacks in hiring firefighters and police
    
    officers in violation of Title VII of the Civil Rights Act of 1964,
    
    42 U.S.C. § 2000e et seq.      Other parts of the consent decree have
    
    been approved and entered, and they are not in question.          One such
    
    part requires the City to hire as police officers and firefighters
    
    thirty blacks from a pool of prior applicants who were qualified
    
    but had been denied employment.          The part of the decree the
    
    district court refused to enter would have granted retroactive
    
    competitive seniority to those thirty new black employees.
    
         The district court, while finding that the United States had
    
    established a prima facie case of discrimination, refused to
    
    approve the retroactive seniority remedy part of the proposed
    
    decree because of objections from the police and fire unions, and
    
    from a group of individual police officers including Rafael Suau
    
    (the “Suau objectors”).        The court found that the retroactive
    
    seniority   provision    in   the   decree   would   violate   contractual
    
    seniority rights of the incumbent employees, rights guaranteed to
    
    them in the unions’ collective bargaining agreements with the City.
    
    It therefore refused to enter that part of the proposed consent
    
    decree over the objections of those whose legally enforceable
    
    seniority rights would be adversely affected.
    
         The United States contends that the district court erred in
    
    refusing to enter the part of the decree granting the new black
    
    employees retroactive seniority rights. The Suau objectors’ cross-
    
    appeal, contends that the district court erred in finding that the
    
                                         2
    United States had made out a prima facie case of discrimination.
    
    We agree with the district court that the retroactive seniority
    
    part of the proposed consent decree would have diminished the
    
    seniority    rights       of    incumbent          employees,         which    are    legally
    
    enforceable       rights       guaranteed          to   them     by    their     collective
    
    bargaining agreements.            Accordingly, we hold that the district
    
    court properly refused to approve that part of the proposed decree
    
    absent    either    the    consent        of    the     unions      and   the    individual
    
    objectors, or a finding that the provision was necessary and
    
    appropriate to remedy discrimination proven during a trial at which
    
    all affected parties had an opportunity to participate.                              In light
    
    of that holding, we also conclude that the cross-appeal is moot.
                        I.     FACTUAL AND PROCEDURAL HISTORY
    
         In    February       1992,     the    Department          of     Justice     began     an
    
    investigation into the hiring                  practices of the police and fire
    
    departments of the City of Hialeah, Florida. As of August 1992,
    
    the Hialeah workforce was approximately 17% black, but only 2% of
    
    Hialeah police officers and 1% of Hialeah firefighters were black.
    
    Only 25.2% of black applicants passed the entry-level police
    
    examination, while whites had a 61.9% passing rate. Furthermore,
    
    only 67.2% of black applicants passed the entry-level exam for the
    
    fire department, while 95.9% of white applicants passed that
    
    examination.
    
         In May 1993, the Department of Justice told the City that its
    
    hiring practices violated Title VII.                    Specifically, the Department
    
    claimed    that    the     number    of        blacks     in   the      police       and   fire
    
    
                                                   3
    departments did not adequately reflect their presence in the
    
    workforce.    The Department also contended that the City's entry-
    
    level examinations for these positions had an adverse impact on
    
    blacks and were not consistent with business necessity.
    
         Between May 1993 and June 1994, the City and the Department of
    
    Justice negotiated a settlement agreement.              No representatives of
    
    either the police or fire unions were included in any part of these
    
    negotiations. Under the terms of the settlement agreement, the
    
    City, while not admitting to any Title VII violations, agreed to:
    
    (1) establish a recruitment program aimed at increasing the number
    
    of black police and firefighters; (2) develop written entry-level
    
    examinations that are consistent with business necessity or that do
    
    not adversely impact blacks; and (3) provide individual relief to
    
    black applicants who had been denied positions in the past solely
    
    because of their test scores.
    
         That individual relief was to be composed of three components:
    
    (1) a monetary settlement of $450,000 to be distributed among
    
    eligible    claimants   as   back   pay;     (2)   a   commitment   to    provide
    
    priority employment in each department to fifteen blacks who had
    
    been denied employment solely because of test scores, meaning that
    
    each department would hire its next fifteen employees from the
    
    class of eligible claimants; and (3) each claimant hired under the
    
    priority employment provision would receive remedial retroactive
    
    seniority    dating   from   six    months    after    his   or   her    original
    
    application for employment.         The settlement agreement terms were
    
    incorporated into a proposed consent decree.
    
    
                                          4
            After the Department of Justice and the City completed their
    
    settlement discussions, the Department filed, on behalf of the
    
    United States, a Title VII complaint against the City on June 7,
    
    1994.     On the same day, the City and the Department filed a joint
    
    motion requesting that the district court approve the proposed
    
    settlement agreement and enter the consent decree.
    
         On June 29, 1994, the district court granted a motion by the
    
    United    States    to   join    as     defendants      the    Dade    County   Police
    
    Benevolent    Association       (PBA)       and   the   Hialeah       Association     of
    
    Firefighters,       Local   1102      of    the   International        Association    of
    
    Firefighters, AFL-CIO (Local 1102). Those unions are the authorized
    
    collective    bargaining        units      for    Hialeah     police    officers     and
    
    firefighters. The Department of Justice contended that the joinder
    
    of those two unions was necessary to insure that the relief
    
    provisions of the settlement agreement could be fully implemented.
    
    Neither union, however, had been allowed to participate in the
    
    formulation of the settlement agreement that the parties asked the
    
    district court to impose. Attorneys for Local 1102 had expressed
    
    interest in taking part in the negotiations two weeks before the
    
    Department of Justice filed its complaint; the Department, however,
    
    never invited either union to participate.
    
         On    August    11,    1994,     the    district    court    held     a   fairness
    
    hearing, at which time it allowed Raul Suau and approximately 200
    
    other individual police officers to intervene. At the fairness
    
    hearing, the district court did not allow the Suau objectors to
    
    develop evidence that they claimed would contradict the statistical
    
                                                 5
    evidence that the Department of Justice used to build its prima
    
    facie case. Nor did the district court allow the Suau objectors to
    
    cross-examine the government’s statistical expert.        However, the
    
    district court did allow the unions and the Suau objectors to
    
    present   nonevidentiary    objections   to   the   provision   granting
    
    retroactive competitive seniority to blacks hired pursuant to the
    
    settlement   agreement.     “Competitive   seniority”   determines   the
    
    allocation of benefits for which employees must compete with one
    
    another, such as shift assignments, promotions, and transfers.        In
    
    contrast, “benefit seniority” determines benefits such as vacation
    
    time, compensation levels, and pension benefits that depend solely
    
    on that employee's longevity.     The unions and the Suau objectors
    
    had no quarrel with the benefit seniority provisions, which did not
    
    adversely affect them.     They did object, however, to granting the
    
    new hires retroactive competitive seniority, which they contend
    
    violates the rights of incumbent police and firefighters under
    
    their collective bargaining agreements with the City.
    
         In an order dated August 16, 1994, the district court found
    
    that the United States had established a prima facie case of
    
    discrimination in the City's hiring practices for the police and
    
    fire departments.     The court also concluded that the proposed
    
    decree was narrowly tailored to remedy that past discrimination.
    
    Notwithstanding those findings, the court refused to approve the
    
    consent decree.     The court explained that affording competitive
    
    seniority benefits to those hired under the settlement agreement
    
    would violate the contractual rights of firefighters and police
    
    
                                       6
    already working for the City, and it would have an “unfair, adverse
    
    impact” on current police and fire department employees.                   The
    
    district court urged all of the parties to negotiate a workable
    
    substitute    remedy    that   avoided     the   problems   of   the   proposed
    
    agreement while allowing for immediate relief.              The United States
    
    filed a notice of interlocutory appeal on October 13, 1994, and the
    
    Suau objectors filed a notice of cross-appeal shortly thereafter.
    
         On December 9, 1994, the district court approved a partial
    
    settlement agreement and consent decree that resulted from the
    
    negotiations of all of the parties involved in this case.                 That
    
    decree, which is not being appealed, is materially identical to the
    
    proposed consent decree that the district court refused to approve
    
    earlier, in all but one respect:             it leaves for litigation the
    
    question of whether retroactive competitive seniority should be
    
    imposed. Thus, the sole issue which remains for this appeal is
    
    whether the district court erred in concluding that it should
    
    refuse   to   enter    without   a   trial   the   retroactive    competitive
    
    seniority provisions of the proposed consent decree, over the
    
    objections of parties who would be adversely affected by those
    
    provisions.
    
    
                             II.     STANDARD OF REVIEW
    
         Subject matter jurisdiction over this appeal is a legal issue
    
    which we address in the first instance.             See Stovall v. City of
    
    Cocoa, 
    117 F.3d 1238
    , 1240 (11th Cir. 1997).
    
    
    
    
                                           7
           Our review of a district court’s refusal to approve a proposed
    
    settlement agreement and enter a consent decree depends upon the
    
    basis of the refusal.                 See id.         The district court has the
    
    responsibility to insure that a consent decree is not “unlawful,
    
    unreasonable,         or   inequitable.”              United    States    v.    City    of
    
    Alexandria, 
    614 F.2d 1358
    , 1361 (5th Cir. 1980).                         To the extent
    
    that    the    district      court's        refusal    to    approve   the     settlement
    
    agreement was based on its conclusion that the proposed agreement
    
    would violate the contractual rights of incumbent employees, this
    
    appeal presents a question of law that we review de novo.                              See
    
    Stovall, 117 F.3d at 1240; United States v. City of Miami, 
    664 F.2d 435
    , 451 n.7 (Former 5th Cir. 1981) (en banc)(Gee, J., concurring
    
    in part and dissenting in part) (“It is difficult to envision an
    
    issue more purely legal than that of whether one written agreement,
    
    the consent decree, conflicts with another written compact, the
    
    existing collective bargaining agreement.”).
                                         III.     DISCUSSION
    
                  A.    SUBJECT MATTER JURISDICTION OVER THE APPEAL
    
           The     unions      and      the      Suau    objectors     contend      that   no
    
    jurisdictional         basis        exists     for    this     interlocutory     appeal.
    
    Normally, only final judgments are appealable. See 28 U.S.C. §
    1291.    One exception to this rule is 28 U.S.C. § 1292(a)(1), which
    
    permits      this    Court     to    review     “[i]nterlocutory       orders     of   the
    
    district courts . . . refusing . . . injunctions.”                           The United
    
    States contends that this appeal falls within that exception.
    
    
    
    
                                                   8
           Congress did not intend for the injunction exception to open
    
    the    floodgates      to    piecemeal      appeals.            The     Supreme   Court     has
    
    repeatedly cautioned that the “exception is a narrow one and is
    
    keyed to the 'need to permit litigants to effectually challenge
    
    interlocutory          orders        of        serious,           perhaps     irreparable,
    
    consequence.'” Gardner v. Westinghouse Broadcast Co., 
    437 U.S. 478
    ,
    
    480, 
    98 S. Ct. 2451
    , 2453 (1978) (quoting Baltimore Contractors v.
    
    Bodinger, 
    348 U.S. 176
    , 181, 
    75 S. Ct. 249
    , 252 (1955)).
    
           In Carson v. American Brands, 
    450 U.S. 79
    , 84, 
    101 S. Ct. 993
    ,
    
    996 (1981), the Supreme Court held that an interlocutory order must
    
    meet    two    requirements       to      be       appealable       under    28   U.S.C.     §
    
    1292(a)(1).        First, if the relief sought is not actually an
    
    injunction,      then       it   must     have         the    practical     effect     of   an
    
    injunction.      See Carson, 450 U.S. at 83-84, 101 S. Ct. at 996.
    Second, for an appeal to be proper under 28 U.S.C. § 1292(a)(1),
    
    the    appellant      must    show     that        the   interlocutory       order    of    the
    
    district      court     “might       have      a       serious,    perhaps    irreparable,
    
    consequence, and that the order can be effectually challenged only
    
    by immediate appeal.”             Id. at 84, 101 S. Ct. at 997 (internal
    quotation marks omitted); see also Roberts v. St. Regis Paper Co.,
    
    
    653 F.2d 166
    , 170 (5th Cir. Unit B Aug. 1981) (noting that order is
    
    appealable under § 1292(a)(1) only if denial of appealability would
    
    result in irreparable harm).
    
           The    United    States    contends             that   notwithstanding        Carson’s
    
    explicit      mention       of   two      prerequisites           for    jurisdiction,      it
    
    effectively establishes a uniform rule that all orders refusing to
    
                                                       9
    enter    consent    decrees     in    Title    VII    cases      are   automatically
    
    appealable under § 1292(a)(1).                A close examination of the two
    
    Carson prerequisites and their application to Title VII cases leads
    
    us to conclude that the United States is correct about that.
    
    Whenever a district court refuses to enter a Title VII consent
    
    decree, the plaintiffs can immediately appeal that order under 28
    
    U.S.C. § 1292 (a)(1) instead of waiting until after the district
    
    court has entered a final judgment in the case.
    
           Several considerations convince us of this conclusion.                      For
    
    example, the Supreme Court has subsequently made a statement
    
    indicating that Carson makes all orders refusing to enter a consent
    decree in Title VII cases interlocutorily reviewable.                    In Local No.
    
    93 v. City of Cleveland, 
    478 U.S. 501
    , 517, 
    106 S. Ct. 3063
    , 3073
    
    (1986), the Court stated that it had held in                       Carson that “a
    
    District      Court’s   order   denying       entry   of   a   consent    decree    is
    
    appealable under 28 U.S.C. § 1292(a)(1).”                  Accord City of Miami,
    
    664 F.2d at 442 (Rubin, J., concurring) (“[T]he Supreme Court
    
    recently noted that a court’s refusal to approve a consent decree
    
    in a Title VII case is an appealable order. . . .”).                     Even though
    
    that statement by the Supreme Court in Local 93 was dictum, it is
    of considerable persuasive value, especially because it interprets
    
    the Court’s own precedent.                    See,    e.g.,      Peterson    v.    BMI
    
    Refractories, 
    124 F.3d 1386
    , 1392 n.4 (11th Cir. 1997)(“[D]icta
    
    from    the   Supreme   Court    is    not    something     to    be   lightly    cast
    
    aside.”).
    
    
    
    
                                             10
         Another reason for our holding flows directly from analysis of
    
    the two jurisdictional requirements that Carson          announced.    Every
    
    refusal to enter a Title VII consent decree will satisfy both
    
    Carson requirements for interlocutory jurisdiction. First, such a
    
    denial will always have “the practical effect of refusing an
    
    injunction.”    Carson, 450 U.S. at 84, 101 S. Ct. at 996.         A consent
    
    decree   will   always    contain   injunctive    relief        because,   by
    
    definition, a consent decree obligates the defendant to “stop
    
    alleged illegal activity.”       Black's Law Dictionary         410 (6th ed.
    
    1991). For example, the proposed consent decree in this case would
    
    have the effect of an injunction, because it would obligate the
    
    City to hire a total of thirty black police and firefighters and
    
    would prevent the City from using its current written entry-level
    
    exams to fill future openings.           An order refusing to enter a
    
    consent decree in a Title VII case, therefore, satisfies the first
    
    requirement for interlocutory jurisdiction under Carson.
         Second, a district court’s refusal to enter a Title VII
    
    consent decree can be “‘effectually challenged’ only by immediate
    
    appeal” because it “might have a ‘serious, perhaps irreparable,
    
    consequence.’” Id. at 84, 101 S. Ct. at 997.       Title VII embodies a
    
    strong   preference      for   voluntary    settlement     of     employment
    
    discrimination cases.     See, e.g., Alexander v. Gardner-Denver Co.,
    
    
    415 U.S. 36
    , 44, 
    94 S. Ct. 1011
    , 1017 (1974) (“Cooperation and
    
    voluntary compliance were selected as the preferred means for
    
    achieving [the goals of Title VII.]”).       The Carson Court noted that
    
    because litigation might cause an essential party to withdraw its
    
    
                                        11
    assent to the decree, denying interlocutory review might destroy
    
    the conditions that permitted compromise in the first place, which
    
    would be in contravention of the strong public policy favoring
    
    voluntary settlement of Title VII cases.                  See Carson, 450 U.S. at
    
    87-88 & n.13, 
    101 S. Ct. 998
     & n.13.
    
           That   the    City     is    not   the    party    most       affected   by   the
    
    competitive seniority provision of the proposed decree complicates
    
    the question of whether the possibility that the City might later
    
    withdraw its consent creates an irreparable injury for the purposes
    
    of Carson.     However, we need not decide whether the                    possibility
    
    that   the    City    might    withdraw       its      consent   alone    creates    an
    
    irreparable injury in this case.                The Supreme Court’s opinion in
    
    Carson identifies an additional source of irreparable injury which,
    
    when considered in conjunction with the strong policy in favor of
    
    settlement of Title VII cases, renders an order refusing to enter
    
    a Title VII consent decree interlocutorily appealable. The opinion
    
    indicates that postjudgment review of a refusal to enter a consent
    
    decree   raises      serious       problems     even    when   the    parties   to   the
    
    agreement continue to support the decree.                  See Carson, 450 U.S. at
    88 n.14, 101 S. Ct. at 998 n.14. One such problem is that the court
    
    reviewing a final judgment may be forced to choose between the
    
    relief upon which the parties had agreed and the relief ordered by
    
    the trial court.       See id.
    
           The Supreme Court explained in Carson that making that choice
    
    correctly would be difficult, because “delaying appellate review
    
    until after final judgment would adversely affect the court of
    
                                               12
    appeals’ ability fairly to evaluate the propriety of the district
    
    court’s order.”        Id.    If the trial court ultimately ordered relief
    
    that differed from that originally agreed to by the parties, the
    
    reviewing court might be less likely to view the provisions of the
    
    original      proposal       as   favorably       as   it     might    otherwise   have.
    
    Deferring review of an order refusing to enter a consent decree in
    
    a Title VII case will always create a risk of irreparable harm
    
    because, even when no risk exists that the parties’ willingness to
    
    compromise will be disrupted, having to go through litigation poses
    
    a risk to the settlement of cases and to a fair evaluation of the
    
    original proposal in any post-trial appeal.
    
          An     order   refusing      to    enter    a    Title    VII    consent   decree,
    
    therefore, will always pose a risk of irreparable harm as Carson
    envisioned it.       Consequently, whenever a district court refuses to
    
    enter    a   consent     decree     in   a   Title      VII    case,    that   order   is
    
    immediately appealable under 28 U.S.C. § 1292(a)(1).                      We therefore
    
    have jurisdiction over the government’s appeal in this case.1
    
    B.   REFUSAL OF THE DISTRICT COURT TO APPROVE THE CONSENT DECREE
    
         1.      A Consent Decree Requires the Consent of All Parties
                 Whose Legal Rights Will Be Affected By the Decree
    
         1
          As indicated, our holding in this case is compelled by the
    reasoning and language in Carson, another Title VII case the
    decision of which was based in part upon the strong,
    congressionally indicated preference in favor of settling Title VII
    cases. See Carson, 450 U.S. at 88 n.14, 101 S. Ct. at 998 n.14
    (“In enacting Title VII, Congress expressed a strong preference for
    encouraging voluntary settlement of employment discrimination
    claims.”); see also Alexander, 415 U.S. at 44, 94 S. Ct. at 1017
    (1974). The question of whether a district court’s order rejecting
    a proposed settlement agreement in a non-Title VII case is
    interlocutorily appealable is not before us, and we express no view
    on it.
    
                                                 13
           We turn now to the merits of the appeal.            The United States
    
    contends that the objection of the unions and the Suau objectors to
    
    the remedial seniority part of the proposed decree is insufficient
    
    to prevent its entry.          It is true that opposition to a proposed
    
    consent decree will not always operate as a bar to it.                While a
    
    party “is entitled to present evidence and have its objections
    
    heard at the [fairness] hearings . . ., it does not have the power
    
    to block [the] decree merely by withholding its consent.”                   See
    
    Local No. 93 v. City of Cleveland , 
    478 U.S. 501
    , 529, 
    106 S. Ct. 3063
    , 3079 (1986).       However, the objection of a party whose rights
    
    or claims would be adversely affected does bar a proposed consent
    
    decree. See id. (“parties who choose to resolve litigation through
    
    settlement may not dispose of the claims of a third party”).                Our
    
    holdings in United States v. City of Miami , 
    664 F.2d 435
     (Former
    
    5th Cir. 1981) (en banc), and White v. Alabama, 
    74 F.3d 1058
     (11th
    
    Cir. 1996), make it clear that a consent decree requires the
    
    consent of all parties whose legal rights would be adversely
    
    affected by the decree.
    
                       a.     The City of Miami Decision
           Although the en banc decision of the former Fifth Circuit in
    
    City of Miami was released after the circuit split, it is part of
    
    the law that is binding upon subsequent panels in this circuit.
    
    See White, 74 F.3d at 1074 n.50.           In the City of Miami case, the en
    
    banc   court   vacated    in    relevant    part   a   district   court   order
    
    approving a consent decree.         The decree had provided that when a
    
    minority employee had the greatest seniority in a particular
                                          14
    position and was qualified for a promotional opportunity, the city
    
    was required to promote that minority employee unless another
    
    applicant had demonstrably superior qualifications.               See City of
    
    Miami, 664 F.2d at 446 (Rubin, J., concurring).            That provision of
    
    the   decree    conflicted   with   the     police    officers'    collective
    
    bargaining agreement, which guaranteed that promotions would be
    
    made on the basis of civil service examination scores. The police
    
    union (the FOP) objected to that part of the decree, arguing among
    
    other things, “the impropriety of enforcing the decree against the
    
    FOP without a trial between the City and the Attorney General.”
    
    Id.
          Accepting that argument, the en banc Court held: “A party
    
    potentially prejudiced by a decree has a right to a judicial
    
    determination of the merits of its objections.”              Id. at 447.2 It
    
    explained that a “party is prejudiced if the decree would alter its
    
    contractual rights and depart from the governmental neutrality to
    
    racial    and   sexual   differences    that   is    the   fundament   of   the
    
    
          2
          Even though Judge Rubin’s concurring opinion in City of Miami
    was joined by only five of the twenty-four judges who participated
    in that decision, we quote from and cite it as the opinion of the
    Court.   The reason we do so is, as the introductory per curiam
    opinion in that case explains, while there is no majority opinion,
    Judge Rubin’s opinion is the narrowest basis for the Court’s
    appellate judgment, and serves as its mandate. See 664 F.2d at 436
    (per curiam).
    
         Another opinion, authored by Judge Gee, and joined by a total
    of 11 judges would have granted even more relief to the objecting
    police officers and ordered a broader remand on their behalf. See
    id. Thus, a total of 16 of the 24 judges participating in City of
    Miami agreed that a trial cannot be dispensed with by a consent
    decree which would affect the contractual rights of an objecting
    party.
    
                                           15
    Fourteenth Amendment in order to redress past discrimination.” Id.
    
    The rule is that “[t]hose who seek affirmative remedial goals that
    
    would adversely affect other parties must demonstrate the propriety
    
    of such relief.”     Id.     Such a demonstration requires a trial on
    
    the merits (or a valid summary judgment, which was not even sought
    
    in this case), and it cannot be accomplished in a consent decree
    
    proceeding    if   the   rights   of   a    nonconsenting   third   party    are
    
    affected.     As the City of Miami opinion explained: “parts of the
    
    decree do affect the third party who did not consent to it, and
    
    these parts cannot properly be included in a valid consent decree.”
    
    Id. at 442.
         Those holdings from City of Miami would seem to dispose of the
    
    matter.     However, the United States contends that the requisite
    
    “demonstration” of intentional discrimination need not be made in
    
    a trial of the merits to final judgment, and it is enough if a
    
    court finds that a prima facie case has been established.             Even if
    
    we adopted that position we would not apply it in this case,
    
    because the district court did not give the Suau objectors a full
    
    opportunity to contest the existence of a prima facie case. The
    
    Suau objectors were not given permission to intervene until the
    
    date of the fairness hearing.          As soon as the court granted their
    
    motion to intervene, they asked for the opportunity to develop and
    
    present evidence of their own, but that request was denied.                 They
    
    also asked to cross-examine the statistician whose affidavit the
    
    United States proffered to show a prima facie case. The Suau
    
    objectors stated that:
    
                                           16
                if given an opportunity to question Dr.
                Thompson, then we would be able to establish
                that her area of expertise is not labor
                economics and that her, and that she lacks the
                ability as an expert to offer an opinion as to
                what the relevant labor market should be for
                determining   that   there    is   an   under-
                representation within the relevant labor
                market.
    
    The district court denied that request. The requirements of due
    
    process dictate that if the issue of whether a prima facie case
    
    exists is to be decisive, each party should be afforded a full and
    
    fair opportunity to present evidence relevant to that issue and to
    
    contest evidence proffered by any other party. That did not happen
    
    in this case.
    
            In any event, the facts of City of Miami, as well as the
    
    explicit holding of that decision, preclude any holding that a
    
    prima facie case is enough to justify dispensing with an objecting
    
    party’s right to a full adjudication of its position on the merits
    
    in a trial.     As to the facts in City of Miami, the United States
    
    and the City entered a stipulation which showed “gross statistical
    
    disparities presented in the workforce” concerning the number of
    
    blacks, Latins, and women compared to white males, and also a
    
    “striking disparity in earnings.”      United States v. City of Miami,
    
    614 F.2d 1322
    , 1332, 1339 (5th Cir. 1980).       The panel opinion in
    
    that case noted that the FOP, the party objecting to entry of the
    
    consent decree, did not challenge those statistics.        See id. at
    
    1339.     Likewise, the en banc opinion observed that while urging
    
    the district court to conduct a “full-blown trial,” the FOP had
    
    “proffered no evidence and did not attempt to controvert in any way
    
    
                                      17
    the stipulation between the United States and the City.”     664 F.2d
    
    at 438-39.    Furthermore, in that case the City admitted the
    
    requisite past discrimination.    See id. at 443-44.
    
         As the en banc opinion in City of Miami summarized it: “The
    
    United States and the City stipulated data that supported the
    
    inference of past discrimination, and they agreed to a statement in
    
    the text of the decree that the City had discriminated against
    
    blacks, Latins, and women.”   Id. at 444.    The panel opinion in that
    
    case explicitly found that the stipulated statistics alone “present
    
    an overwhelming prima facie case of discriminatory employment
    
    practices.”   614 F.2d at 1339.         The en banc opinion did not
    
    disagree with that finding.    Therefore, there was a prima facie
    
    showing of discrimination in City of Miami.     If the existence of a
    
    prima facie case were enough to justify abrogating an objecting
    
    party’s rights via a so-called “consent decree,” City of Miami
    
    would have been decided differently.       Because it was not, we are
    
    bound to reject the United States’ position.
    
         Another insurmountable hurdle to the United States’ attempt to
    
    surmount the en banc holding in        City of Miami is the explicit
    language of that decision itself.      In complex cases good opinions
    
    often state their holdings with careful specificity near the
    
    beginning and again at the end of the opinion.          Judge Rubin’s
    
    opinion in the City of Miami case does that.      The first paragraph
    
    of his opinion for the en banc court consists of these three
    
    sentences:
    
                   This case requires us to examine the
              circumstances under which, and the procedure
    
                                      18
              by which, a court may enter a consent decree
              in a multiparty suit when some, but not all,
              of the litigants agree to the decree and
              parts, but not all, of the decree affect the
              rights of a nonconsenting party. We conclude
              that a decree disposing of some of the issues
              between some of the parties may be based on
              the consent of the parties who are affected by
              it but that, to the extent the decree affects
              other parties or other issues, its validity
              must be tested by the same standards that are
              applicable in any other adversary proceeding.
              Most parts of the decree entered by the trial
              court in this Title VII case pass the
              requisite muster, and we affirm them; however,
              because a part of the decree, entered without
              a trial, affects the rights of an objecting
              party, we limit its effect as to that party
              and remand for trial of the complaint insofar
              as a remedy is sought against that party.
    
    
    664 F.2d at 436 (emphasis added).
    
         The first sentence of that first paragraph of the City of
    
    Miami opinion states the issue in that case, which is identical to
    
    the issue in this case.   The second sentence states the conclusion
    
    of the Court: to the extent a proposed consent decree affects the
    
    rights of nonconsenting parties, “its validity must be tested by
    
    the same standards that are applicable in any other adversary
    
    proceeding.”   In “any other adversary proceeding” a nonconsenting
    
    party’s rights cannot be abrogated merely upon a showing of a prima
    
    facie case; that can be done only in a judgment entered following
    
    trial (or summary judgment).    In order to remove any doubt, the
    
    third and last sentence of the opening paragraph unambiguously
    
    states that as to the objecting party, the case is “remand[ed] for
    trial of the complaint insofar as a remedy is sought against that
    
    party.” The opinion says “for trial,” not for any proceeding short
    
    
                                     19
    of trial.      It certainly does not say that the remand was for the
    
    purpose   of    determining   whether    a   prima   facie   case   could   be
    
    established.     One already had been.       More than a prima facie case
    
    is required by the City of Miami decision.               The more that is
    
    required is a trial.    The very first paragraph of the opinion could
    
    not have been clearer about that.
    
         Likewise, the concluding three sentences of the City of Miami
    
    opinion, in a section labeled “Mandate,” state:
    
                The case is remanded, in addition, for further
                proceedings, consistent with this opinion, to
                determine whether the United States has the
                right to claim any relief concerning police
                promotion.   If, at trial, the United States
                can prove that the City has discriminated
                against black, Spanish-surnamed, or female
                police officers, or that the City has so
                discriminated in its employment policy as to
                prejudice their opportunities for promotion,
                and that affirmative action in favor of the
                affected class is appropriate remedial action,
                the United States may seek such relief,
                including reimposition of the contents of
                paragraph 5(c). The FOP shall, of course, be
                afforded the opportunity either to contend
                that discrimination, the necessary predicate
                for relief, has not been proved, or to show
                that the type of relief embodied in paragraph
                5(c) is, in this instance, unnecessary,
                inadvisable, or unconstitutional.
    
    Id. at 448 (emphasis added).            The first sentence remands for
    
    further proceedings consistent with the opinion, and the second
    
    sentence explicitly states that those proceedings are to occur “at
    
    trial.”     Both the second and third sentences speak of what the
    
    United States is required to prove at that trial, not what it may
    
    simply suggest with a prima facie case.                Thus, the explicit
    
    language of the concluding paragraph, as well as that of the
    
    
                                        20
    opening     paragraph,   in     the   City   of    Miami     opinion    precludes
    
    interpreting that decision as permitting an objecting party’s
    
    rights to be dispensed with upon nothing more than a prima facie
    
    showing of discrimination.        Proof at trial is required.
    
                              b.    The White Decision
    
            This Court recently applied and followed the City of Miami
    
    rule in White v. Alabama, 
    74 F.3d 1058
     (11th Cir. 1996), a decision
    
    which      vacated   a   district     court's      judgment      approving     and
    
    incorporating a settlement agreement that would have altered the
    
    manner in which Alabama state judges were selected.                 The district
    
    court, finding that the original plaintiffs had established a prima
    
    facie case that the Voting Rights Act had been violated, entered
    
    what purported to be a “consent decree.” That decree was consented
    
    to by the original plaintiffs, by the State Attorney General, and
    
    by   the    Department   of    Justice.      See   id.     at   1073.    But   two
    
    intervening plaintiffs and an intervening defendant did not consent
    
    to entry of the decree; they objected to it.               See id. at 1064-67,
    
    1072-74.      Nonetheless, the district court entered the decree
    
    without a trial, treating it as a consent decree.                See id. at 1073
    n.48.
    
          We were unequivocal in explaining why there could be no
    
    consent decree absent consent of all the parties whose rights would
    
    be affected:
    
                      First,   the   district   court’s    final
                 judgment is not a consent decree.      It is a
                 final judgment, because it disposes of all of
                 the claims and defenses of all of the parties
                 in the case. See 28 U.S.C. § 1291; Andrews v.
                 United States, 
    373 U.S. 334
    , 
    83 S. Ct. 1236
    , 10
    
                                           
    21 L. Ed. 2d 383
     (1963).    But it is not a final
                consent decree, because not all of the parties
                consented to its entry. White, the Attorney
                General, the Department of Justice, and the
                district court refer to the final judgment as
                a “consent decree.” That, however, does not
                make it one.
    
    Id. at 1073 (emphasis added).         To ensure no one missed the point,
    
    in the very next paragraph we reiterated that: “In this circuit, a
    
    decree that provides a remedy agreed to some, but not all, of the
    
    parties cannot affect the rights of a dissenting party.”            Id.   Of
    
    course, we cited for that proposition the City of Miami en banc
    
    decision.    See id.
         The dissenting opinion in this case attempts to perform
    
    reconstructive surgery on White by suggesting that it really does
    
    not mean, as it plainly said, that a consent decree requires the
    
    consent of all the parties whose rights are affected. Instead, the
    
    dissenting opinion contends, a decree entered by consent of some
    
    parties can modify or affect the rights of a dissenting party, so
    
    long as the party getting shafted has not formally pleaded any
    
    claims, i.e., is not a plaintiff or third-party plaintiff.
    
         Neither White, nor City of Miami which it cites, imply that
    parties who have pleaded claims are the only ones whose consent is
    
    necessary and whose legal rights matter.           Indeed, in White one of
    
    the parties whose objection prevented entry of a consent decree was
    
    an intervening defendant who had not pleaded any claim; he just
    
    wanted to maintain the status quo.         See 74 F.3d at 1075 n.51.      Nor
    
    does the dissenting opinion explain why a nonconsenting plaintiff’s
    
    rights   should   be   given   more   protection    than   a   nonconsenting
    
                                          22
    defendant’s rights, or any other party’s rights that were asserted
    
    in an objection instead of in a claim.
    
         The dissenting opinion points to footnote 53 of the White
    
    opinion, which discussed Local No. 93 v. City of Cleveland, 
    478 U.S. 501
    , 
    106 S. Ct. 3063
     (1986).   That discussion does not detract
    
    from the clear holding in White or support the position of the
    
    dissenting opinion.   Instead, the discussion clearly recognizes
    
    that in Local No. 93 the Supreme Court acknowledged that “had the
    
    settlement affected the union’s rights, the decree could not have
    
    been entered without its consent.”     74 F.3d at 1075 n.53.   TheCity
    of Miami decision also puts the focus on whether the rights of
    
    objecting parties would be affected by the decree.       See City of
    
    Miami, 664 F.2d at 447 (“[t]hose who seek affirmative remedial
    
    goals that would adversely affect other parties must demonstrate
    
    the propriety of such relief”) (emphasis added); id. at 436 (“to
    
    the extent the decree affects other parties”); id. (“because a part
    
    of the decree, entered without a trial,     affects the rights of an
    
    objecting party, we...remand for trial....”) (emphasis added).     We
    
    follow the explicit holdings of    White and City of Miami.     Those
    
    holdings bind this Court as well as the district court, and they
    
    forbid entry of a “consent decree” insofar as it adversely affects
    
    the legal rights of an objecting party, whether that party is a
    
    plaintiff or defendant.
    
                c.   The Local No. 93 and Franks Decisions
    
         As a subsequent panel, we are bound by the White panel’s
    interpretation of the Supreme Court’s Local No. 93 decision.     See,
    
    
                                      23
                                                                  th
    e.g., United States v. Hutchinson , 
    75 F.3d 626
    , 627 (11           Cir.
    
    1996).    That interpretation, which holds that to the degree a
    
    consent decree diminishes a party’s legal rights, it cannot be
    
    entered over that party’s objections, see White, 74 F.3d at 1075
    
    n.53, is inconsistent with the dissenting opinion’s reading of
    
    Local No. 93.   However, even if we were writing on a clean slate we
    
    would interpret Local No. 93 the same way White did.
    
         The express language of Local No. 93 refutes the dissenting
    
    opinion’s contention that, under the Supremacy Clause, contractual
    
    rights guaranteed by Florida law cannot prevent entry of a consent
    
    decree.   That decision explicitly recognizes that a consent decree
    
    cannot dispose of the contractual rights of objecting parties. The
    
    Local No. 93 Court affirmed entry of the consent decree in that
    case because “the consent decree does not purport to resolve any
    
    claims the Union might have ... as a matter of contract.”   478 U.S.
    
    at 530, 
    106 S. Ct. 3079
    .    The union intervenor in    Local No. 93 ,
    
    unlike the intervenors in this case, did not assert any legal
    
    rights that would be impinged by the consent decree.    See 478 U.S.
    
    at 508-11, 106 S. Ct. at 3067-69.       Apparently, no established
    
    collective bargaining rights were affected by the decree, because
    
    the union did not contend that any were.3
    
         3
          The dissenting opinion contends that the Local No. 93 union
    asserted that the decree “would affect the contractual expectations
    of its members.” The language of Local No. 93, however, does not
    support that contention. The most that Local No. 93 seems to have
    alleged is that “promotions should be made on the basis of
    demonstrated competency.” Local No. 93, 478 U.S. at 507, 106 S.
    Ct. at 3067. Expectations aside, nothing in the opinion suggests
    that the union ever asserted that the decree would violate
    contractual rights. In fact, the Court commented that the union
    
                                     24
         As the Supreme Court pointed out in Local No. 93, the district
    
    court provided the objecting union with several opportunities to
    
    advance specific objections and to develop evidence to substantiate
    
    those objections; the court even informed the union that vague
    
    appeals to fairness could not prevent entry of the decree.         See id.
    
    at 528-29, 106 S. Ct. at 3079.         Instead of detailing specific
    
    claims as to how the decree would impair the rights of its members,
    
    the union merely protested that “there must be a more equitable,
    
    fair and just way to correct the problems caused by the [City],”
    
    and that it was totally opposed “to the use of racial quotas which
    
    must by their very nature cause serious racial polarization.”            Id.
    at 511, 106 S. Ct. at 3069.    As the Supreme Court characterized it,
    
    the union simply “express[ed] its opinion as to the wisdom and
    
    necessity of the proposed consent decree.”       Id.     That is entirely
    
    unlike City of Miami and this case, where the intervenors have
    
    objected based upon their specific legal rights under Florida law,
    
    rights that the decree would abrogate.      See pp. 30-32, below.
    
         Finally, the rule the dissenting opinion would read into Local
    No. 93 not only cannot be found in the opinion in that case, it
    
    cannot withstand scrutiny either.        According to the dissenting
    
    opinion,   an   objecting   party’s   existing   legal    rights   can    be
    
    sacrificed to the interests of the other parties, without a trial,
    
    so long as the intrusion on those rights does not obligate that
    
    party “to do or not to do anything.”     That would mean, for example,
    
    
    
    “failed to raise any substantive claims.”        Id. at 530, 106 S. Ct.
    at 3079.
    
                                      25
    that the other parties could agree to use a “consent decree” to cut
    
    the wages of the objecting union members, in violation of their
    
    contractual rights, if the other parties deemed it necessary and
    
    appropriate to do so in order to fund aspects of the remedy put
    
    into place by the decree.             Under the rule advocated by the
    
    dissenting opinion, the union members whose wages were being cut
    
    over their vehement objection would not be entitled to bar the
    
    settlement or to insist upon a trial.           What would matter is that
    
    they were not being ordered to do anything by the decree.           The City
    
    could    take   care   of   the   paperwork   and   other   affirmative   acts
    
    necessary to actually reduce their compensation. Such are the
    
    implications of the dissenting opinion’s interpretation of Local
    
    No. 93, which is an interpretation we are confident never occurred
    
    to the Supreme Court, and is also an interpretation foreclosed by
    
    White.
    
         The dissenting opinion also relies heavily upon Franks v.
    
    Bowman Transportation Co., 
    424 U.S. 747
    , 
    96 S. Ct. 1251
     (1976),
    
    which it says “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.”          See dissenting op. at 11 - 12.         The
    
    reason Franks does not and cannot stand for that proposition is
    that Franks only involved remedy issues arising after a full blown
    
    trial at which the plaintiffs went further than merely showing a
    
    prima facie case and actually proved that the defendant corporation
    
    had engaged in a pattern of racially discriminatory practices. The
    
    word “consent” is not mentioned, not even once in the Franks
    
    
                                           26
    opinion, because that decision had nothing at all to do with
    
    consent decrees.     Nowhere does the dissenting opinion explain how
    
    Franks,    which   concerned    the    propriety       of    make-whole     relief
    
    following a finding of discrimination in violation of Title VII,
    
    could possibly apply to this case, where the government conceded
    
    before the district court that no finding of discrimination had
    
    been made.
    
         The dissenting opinion attempts to make more of Local No. 93
    
    and Franks than either will support by combining language from the
    
    Court’s opinions in the two cases as though it were all from the
    
    same decision.     See dissenting op. at 13.           That is like trying to
    
    produce a unicorn by crossing a mule with a rhinoceros.                 Local No.
    
    93 is not a consent decree case in which the objecting party
    
    articulated a specific contractual right that the decree would
    
    contravene.    Neither is      Franks.     Those two decisions cannot be
    
    combined to produce what they are not.         The issue before us is not
    
    whether or when a third party’s legal rights must give way in order
    
    to   remedy   a    federal   constitutional       or    statutory       violation
    
    established in a trial.        Instead, the issue is whether based upon
    
    the agreement of some other parties in the lawsuit a court can
    
    abrogate, violate, or impinge upon the legal rights of an objecting
    
    third party where the necessity or propriety of doing so has not
    
    been established in a trial or by summary judgment.
    
         Our difference with the dissenting opinion on this important
    
    issue is evident in terminology.           In the dissenting opinion, the
    
    original   class   of   potential     claimants    is       referred   to   as   the
    
                                          27
    “discriminatees” or the “actual victims of discrimination.”          That
    
    terminology assumes that a trial would reach that conclusion.
    
    However, at the fairness hearing, the government indicated that it
    
    was seeking only to establish a prima facie case of discrimination,
    
    and that it had no intention of proving its case at that time. The
    
    attorney for the government took the position that: “the district
    
    court does not need to find discrimination.             This is not a
    
    litigated judgment.” The district court then indicated that it
    
    would not make a finding of discrimination: “I agree with that.”
    
    The court later added: “the trial judge ought not to try the case
    
    in the settlement hearings.” Nothing in the record supports the
    
    dissenting   opinion’s   assumption    that   the   potential   class   of
    
    plaintiffs have been demonstrated to be “discriminatees” or “actual
    
    victims of discrimination.”     Of course, if the desired conclusion
    
    is assumed, it is a simple matter to reach that conclusion.             For
    
    the same reasons we would not do so in other cases where summary
    
    judgment has not even been sought, we decline to assume there is no
    
    point in having a trial in this case.
    
          We concede that the dissenting opinion’s position, if taken to
    
    its logical conclusion, might be a promising way to ease judicial
    
    workloads.   If we can dispense with the consent of the unions and
    
    the   intervening   employees   and   resolve   this   case   over   their
    
    objections, why should we not dispense with the consent of the City
    
    as well?     Why not let the Department of Justice, once it has
    
    demonstrated a prima facie case, enter into a settlement agreement
    
    with itself (and perhaps with the original plaintiff class as
    
    
                                      28
    well), and have the court enter a “consent” decree to that effect
    
    even if the City objects?          If the consent of the intervenors is not
    
    required before their legal rights can be settled away, why should
    
    the consent of the original defendant be required?                   Fortunately,
    
    the holdings of the City of Miami and White decisions save us from
    
    such possibilities, because those decisions compel the conclusion
    
    that a proposed consent decree is due to be rejected if it would
    
    affect the legal rights of the objecting parties.               We turn now to
    
    that question in this case.
    
            2.   The Proposed Consent Decree Would Adversely Affect
                 Legal Rights of the Intervenors
    
         In      this    case,   the    police     and   firefighters'    collective
    
    bargaining agreements confer legal rights that the proposed consent
    
    decree would affect adversely.             The dissenting opinion concludes
    
    that the decree at issue in this case is like the one that the
    
    Court approved in Local No. 93 because both would affect future
    
    promotions.         However, that is where any similarity ends.           Unlike
    
    Local No. 93, the decree at issue in this case affects a wide range
    
    of   contractual        rights     that   existing     collective     bargaining
    
    agreements clearly guarantee incumbent employees.              Examination of
    
    those rights dispels any superficial similarity that may result
    
    from a first glance comparison of Local No. 93                and the present
    
    case.
    
         Several of the rights that the Hialeah collective bargaining
    
    agreements detail accrue strictly according to seniority.                    For
    
    example, the City retains no authority to decide which firefighters
    
    to call back for mandatory overtime.             Article 52, Section 2 of the
    
                                              29
    Local 1102 agreement states that when additional firefighters are
    
    needed on duty and the positions cannot be filled with voluntary
    
    replacements, they “shall be filled via mandatory overtime by the
    
    most junior available employee[s] of the appropriate rank.”
    
         The collective bargaining agreement also confers seniority
    
    rights involving some positions in the Fire Department, such as
    
    those on the hazardous materials team.               Article 51, Section 1 of
    
    the agreement provides, “As positions open up on the hazardous
    
    materials team, they shall be filled from among personnel who have
    
    expressed an interest based on seniority in grade.”                      Because
    
    allocation of such benefits is strictly according to seniority in
    
    rank,   a   grant    of    retroactive    seniority     to    some    individuals
    
    infringes other employees' accrued seniority rights.
    
         Similarly, the Police Benevolent Association (PBA) bargaining
    
    agreement    provides       seniority    rights    relating     to    promotions.
    
    Article 1 of the PBA agreement defines seniority as “[t]hose rights
    
    which accrue to an employee based on longevity in the department.
    
    . . .” Subsequent provisions describe the rights that seniority
    
    confers upon the police officers.             Article 24 of the PBA agreement
    
    specifies    that:        “Eligible     applicants     for     the    promotional
    
    examination for Sergeant shall be entitled to one-fourth (1/4) of
    
    a point for each full year of service as a Hialeah Police Officer.”
    
    The settlement agreement's grant of retroactive seniority to new
    
    hires would curtail the           promotional rights of some incumbent
    
    officers,    because      it   would    effectively    grant    the    new   hires
    
    
    
    
                                             30
    additional points on the promotional exam that they would not
    
    otherwise receive.
    
         In    addition,    the   settlement    agreement    impinges    on   other
    
    benefits    which,   although    not    determined    purely   according    to
    
    seniority, are worded in such a way that seniority will have a
    
    substantial and often decisive impact.         For example, Article 28 of
    
    the PBA agreement, entitled “Seniority Privileges,” states that
    
    once operational needs have been met, “seniority in rank will be
    
    given preference with respect to days off and vacation time.” [R1-
    
    9-At. 3 at 41]       The firefighters' agreement contains a similar
    
    provision.       Both    collective     bargaining      agreements    contain
    
    provisions that allocate other benefits such as shift preference
    
    and transfer requests according to seniority once operational needs
    
    have been met. Those provisions confer rights and benefits upon
    
    union members that the proposed consent decree would undermine or
    
    diminish.
    
         The United States does not dispute that the proposed agreement
    
    would harm the interests of current police and firefighters to some
    
    extent.     Counsel for the United States conceded at the fairness
    
    hearings that incumbent employees “may even be slightly diminished
    
    in their rights” by the proposed consent decree, which is akin to
    
    saying that the rights of a pedestrian in a crosswalk may be
    
    slightly diminished by a runaway truck.                 Notwithstanding its
    
    concession,    the   United    States    contends    that   infringement    of
    
    incumbent employee rights does not allow those employees to block
    
    approval of the settlement, because it is “speculative” whether the
    
    
                                           31
    proposed agreement's grant of retroactive seniority will cause any
    
    incumbent employees to lose a shift or vacation preference or be
    
    called back for mandatory overtime.
    
         That contention cannot survive examination against existing
    
    decisional law.     In City of Miami, the Court invalidated parts of
    
    a consent decree altering the City's procedure for promoting police
    
    officers even though it was impossible to determine in advance
    
    which -- or even that -- officers would be affected by the change;
    
    the mere threat of injury to contractual rights was held to be
    
    sufficient.      See City of Miami , 664 F.2d at 446 (Rubin, J.,
    concurring).4     As a result, under the law of this Circuit, the
    
    retroactive     seniority    provision’s   threat   to   the   objectors’
    
    competitive seniority benefits prevented entry of the consent
    
    decree.     The objectors were not required to prove with certainty
    
    that particular employees would lose contractual benefits.         In any
    
    event, it is obvious that the decree in this case would have
    
    adversely affected at least some of the incumbent employees.
    
         The United States also argues that the proposed grant of
    
    retroactive seniority cannot be said to impinge upon the rights of
    
    incumbent employees, because the City retains some discretion in
    
    allocating many of the benefits in the collective bargaining
    
    agreements.      There are two major problems with that argument.
    
    First, as discussed above, some of the competitive seniority rights
    
    are not subject to the City’s discretion at all.         The opportunity
    
    for firefighters to receive hazardous materials training, and the
    
         4
             See supra note 2.
    
                                        32
    right of police officers to receive the benefit of extra points on
    
    their    competitive   sergeant’s   exam   for   years   of   service     are
    
    contractual rights that accrue with seniority, and the City has
    
    reserved no authority under the collective bargaining agreements to
    
    infringe those rights.     That alone is enough to defeat the United
    
    States’ discretion argument.
    
         Second, the discretion argument misses the point anyway.
    
    Seniority rights subject to the City’s exercise of some discretion
    
    in certain circumstances are neither the same as no seniority
    
    rights at all, nor are they the same as seniority rights subject to
    
    additional exceptions.      Nothing in either collective bargaining
    
    agreement authorized the City to modify seniority rights across the
    
    board.    Cf. People Who Care v. Rockford Bd. of Educ., 
    961 F.2d 1335
    , 1337 (7th Cir. 1992) (“When the parties to a decree seek to
    
    enlarge their legal entitlements -- to grant themselves rights and
    
    powers that they could not achieve outside of court -- their
    
    agreement is not enough.”).
    
         Florida law supports the conclusion that the proposed consent
    
    decree would contravene the contractual rights of Hialeah police
    
    and firefighters, because Florida statutory and constitutional law
    
    give public employees a right to bargain collectively.            See, e.g.,
    Hillsborough    County   Governmental      Employees     Ass'n,    Inc.   v.
    
    Hillsborough County Aviation Auth., 
    522 So. 2d 358
    , 363 (Fla. 1988).
    
    Collective bargaining is required by Florida law for important
    
    terms of employment such as shift assignments, promotions, vacation
    
    time, and mandatory overtime.       See, e.g., City of Miami, 
    664 F.2d 33
    at 446 (“Under Florida law promotion is a subject for collective
    
    bargaining for public employees.”); City of Miami v. F.O.P. Miami
    
    Lodge 20, 
    571 So. 2d 1309
    , 1312-13 (Fla. Dist. Ct. App. 1989)
    
    (holding that public sector employers are obligated to engage in
    
    collective bargaining process over broad range of issues, including
    
    “wages, hours, and terms and conditions of employment” as well as
    
    any changes in those terms or conditions), approved, 
    609 So. 2d 31
    
    (Fla. 1992). Altering collectively bargained benefits through non-
    
    collective bargaining mechanisms is contrary to Florida law.
    
         Furthermore, public policy dictates that parties to a labor
    
    agreement either live up to the terms of that agreement or pay for
    
    the opportunity to alter those terms. “[P]arties to a collective-
    
    bargaining agreement must have reasonable assurance that their
    
    contract will be honored.”            W.R. Grace & Co. v. Local Union 759,
    
    461 U.S. 757
    , 771, 
    103 S. Ct. 2177
    , 2186 (1983).                     One party to a
    
    collective      bargaining    agreement       cannot    use    the    device     of    a
    
    nonconsensual consent decree to avoid its obligations, which the
    
    other   party    negotiated     and    bargained       to   obtain.    As   we    have
    
    previously observed in these circumstances: “The Florida cases hold
    
    that, when a subject is encompassed within the terms of an existing
    
    contract, a public employer may not foreclose bargaining on the
    
    subject   or     unilaterally    alter        the   terms     and    conditions       of
    
    employment.”      City of Miami, 664 F.2d at 447.
         Because a grant of retroactive seniority would alter the
    
    rights and benefits of incumbent employees under the collective
    
    bargaining agreements, approval of that part of the proposed
    
    
                                             34
    decree over the unions' objections would violate the police and
    
    firefighters' collective bargaining rights under Florida law.                   If
    
    the City wants to alter the manner in which competitive benefits
    
    are allocated, it must do so at a bargaining table at which the
    
    unions are present.        Or, that must be done pursuant to a decree
    
    entered after a trial at which all affected parties have had the
    
    opportunity to participate.
    
        3.     If a Title VII Violation is Established at Trial, the
               District Court Can Consider the Remedy Set Out in the
               Proposed Decree
         If a Title VII violation is found after a trial at which the
    
    affected parties are represented, modification of otherwise legally
    
    enforceable    seniority    rights    may   be   part   of   a   necessary     and
    
    appropriate remedy. See United States v. City of Chicago, 
    978 F.2d 325
    , 332 (7th Cir. 1992) (“[U]nder some circumstances, federal
    
    courts may require an innocent third party to participate in
    
    remedies for illegal discrimination.”).            To the extent necessary
    
    and proper, Florida law will have to yield in that situation.                  But
    
    modifying seniority rights to remedy a Title VII violation found
    
    after a trial is entirely different from modifying them without a
    
    trial based upon a “consent decree” to which adversely affected
    
    parties have objected.       The important point is that an objecting
    
    party is entitled to an adjudication of its rights on the merits
    
    before those rights are infringed or modified by court decree. The
    
    district    court   was   correct    in   concluding    that     it   lacked   the
    
    
    
    
                                          35
    authority to deprive the objecting parties of that entitlement in
    
    this case.5
    
                                                4. Summary
    
          What happened in this case is that the Department of Justice
    
    and the City of Hialeah crafted a settlement agreement without the
    
    consent   or    input       of   the    unions      or    individual     police      and
    
    firefighters whose contractual rights, recognized and protected
    
    under Florida law, would be affected by the agreement.                              The
    
    Department     refused      to   permit     the    police     and   firefighters     to
    
    participate     in    the    negotiations.            The    resulting     settlement
    
    agreement and proposed consent decree would impair important rights
    
    guaranteed     to    the    police     officers     and     firefighters      in   their
    
    collective bargaining agreements.
    
          At several points in its briefs, the United States cites the
    
    policy favoring negotiation and settlement of Title VII claims in
    
    support   of   its    argument       that   the     district    court    should    have
    
    approved the agreement and decree.                 The United States also argues
    
    that a consent decree that it negotiates carries a considerable
    
    presumption     of    validity       because       the    Department     of    Justice
    
    represents the interests of all citizens.                   See Williams v. City of
    New Orleans, 
    729 F.2d 1554
    , 1560 (5th Cir. 1984).                   These arguments
    
    are   heavy    with   irony,     given      that    the     Department   of    Justice
    
          5
          Because we conclude that the district court lacked the
    authority to approve the settlement agreement, we need not consider
    the government's contention that the district court erred in
    finding that the retroactive seniority provision should not be
    approved because it would have an unusual, unfair adverse impact on
    current employees. See Franks v. Bowman Transp. Co., Inc., 
    424 U.S. 747
    , 
    96 S. Ct. 1251
     (1976).
    
                                                36
    restricted its “negotiations” to the City, a party with no interest
    
    adverse to the Department’s competitive seniority proposals. If the
    
    Department had been concerned about the interests of all citizens
    
    and had been interested in “negotiation” and “settlement” in the
    
    non-Orwellian sense, it would have attempted to reach an agreement
    
    with all of those whose rights were at stake.                      Instead, the
    
    Department disregarded the interests and rights of some parties
    
    based upon their races, and it asked a United States district court
    
    to   do    the   same.     The   district    court   correctly    rejected   the
    
    Department of Justice’s request to ram the proposed settlement
    
    agreement down the throats of the unions and individual objectors
    
    without affording them a fair adjudication of their rights.
    
            As Judge Gee recognized in City of Miami, for the district
    
    court     to   enter   a   proposed   decree   in    such   a   situation   would
    
    contravene basic principles of fairness:
    
                   An appellant is before us complaining that it
                   has had no day in court -- has never been set
                   for trial or had notice of a setting -- but
                   has been judged away. This error is so large
                   and palpable that, like an elephant standing
                   three inches from the viewer’s eye, it is at
                   first hard to recognize. The major dissent is
                   reduced to arguing that it is all right to
                   enter a permanent injunction without a trial
                   against one who is unable, in advance of such
                   a trial, to show the court how his rights will
                   be infringed by the order. Here is new law
                   indeed, law that we cannot accept.
    
    City of Miami, 664 F.2d at 651 (Gee, J., concurring in part and
    dissenting in part).         Just as the en banc court did in           City of
    
    Miami, we see the elephant.           We will not close our eyes to its
    
    existence.       We will not hold that a party’s legally enforceable
    
    
                                            37
    contractual rights can be discarded without affording that party
    
    the right to litigate the case on the merits.
    
          C.    JURISDICTION OVER THE SUAU OBJECTORS' CROSS-APPEAL
    
         In their cross-appeal, the Suau objectors contend that the
    
    district court erred in concluding that the United States had
    
    demonstrated a prima facie case of discrimination.                       Because we
    
    affirm the district court's refusal to enter the consent decree,
    
    the Suau cross-appeal is moot.              See, e.g. , Pacific Ins. Co. v.
    
    General Development Corp., 
    28 F.3d 1093
    , 1096 (11th Cir. 1994) (per
    
    curiam) (appeal is moot when it fails to present a controversy with
    
    respect    to   which   the   court    can    provide       meaningful     relief).
    
    Accordingly, their cross-appeal is due to be dismissed.                    However,
    
    as we have pointed out, the Suau objectors, at least, were refused
    
    a full and fair opportunity to present their own evidence and to
    
    meaningfully test the statistics upon which the effort to establish
    
    a prima facie case was based.         Our dismissal of the cross-appeal on
    
    jurisdictional    grounds     should    not    be    read   to   imply    that   the
    
    question of whether a prima facie case exists has been settled.
    
    
                                  IV.     CONCLUSION
    
          A district court may not enter parts of a proposed consent
    
    decree that operate to diminish the legal rights of a party who
    
    objects to the decree on that basis.                The part of the decree at
    
    issue in this case would diminish the contractual seniority rights
    
    of incumbent Hialeah police officers and firefighters, who objected
    
    
    
                                           38
    to it for that reason.   Therefore, the district court’s refusal to
    
    enter that part of the decree was proper.
    
         We AFFIRM the district court’s judgment.   The Suau objectors’
    
    cross-appeal is DISMISSED AS MOOT.
    
    
    
    
                                     39
    

Document Info

DocketNumber: 94-5083

Filed Date: 5/8/1998

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (21)

United States v. Hutchinson , 75 F.3d 626 ( 1996 )

Stovall v. City of Cocoa, Florida , 117 F.3d 1238 ( 1997 )

Peterson v. BMI Refractories , 124 F.3d 1386 ( 1997 )

Baltimore Contractors, Inc. v. Bodinger , 348 U.S. 176 ( 1955 )

Andrews v. United States , 373 U.S. 334 ( 1963 )

Alexander v. Gardner-Denver Co. , 415 U.S. 36 ( 1974 )

Franks v. Bowman Transp. Co. , 424 U.S. 747 ( 1976 )

Gardner v. Westinghouse Broadcasting Co. , 437 U.S. 478 ( 1978 )

Carson v. American Brands, Inc. , 450 U.S. 79 ( 1981 )

WR Grace & Co. v. Rubber Workers , 461 U.S. 757 ( 1983 )

Firefighters v. Cleveland , 478 U.S. 501 ( 1986 )

22-fair-emplpraccas-846-22-empl-prac-dec-p-30822-united-states-of , 614 F.2d 1322 ( 1980 )

22 Fair empl.prac.cas. 872, 22 Empl. Prac. Dec. P 30,829 ... , 614 F.2d 1358 ( 1980 )

26 Fair empl.prac.cas. 870, 26 Empl. Prac. Dec. P 32,025 ... , 653 F.2d 166 ( 1981 )

27-fair-emplpraccas-913-27-empl-prac-dec-p-32328-united-states-of , 664 F.2d 435 ( 1981 )

34 Fair empl.prac.cas. 1009, 34 Empl. Prac. Dec. P 34,311 ... , 729 F.2d 1554 ( 1984 )

People Who Care v. Rockford Board of Education School ... , 961 F.2d 1335 ( 1992 )

60-fair-emplpraccas-bna-309-60-empl-prac-dec-p-41896-united , 978 F.2d 325 ( 1992 )

pacific-insurance-company-plaintiff-counter-defendant-appellant-v-general , 28 F.3d 1093 ( 1994 )

Hillsborough Cty. Gea v. Hillsborough Cty. Aviation Auth. , 522 So. 2d 358 ( 1988 )

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