United States v. City of Hialeah ( 1998 )

  •                                                      [PUBLISH]
                         FOR THE ELEVENTH CIRCUIT
                                No. 94-5083
                      D.C. Docket No. 94-1140-CV-SH
    (in his official capacity), HIALEAH
    PERSONNEL BOARD, et al.,
              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
    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
    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
         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
    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.
            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
    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
    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
                             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
    117 F.3d 1238
    , 1240 (11th Cir. 1997).
           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
    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
           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.
           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
    98 S. Ct. 2451
    , 2453 (1978) (quoting Baltimore Contractors v.
    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
    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
    124 F.3d 1386
    , 1392 n.4 (11th Cir. 1997)(“[D]icta
    from    the   Supreme   Court    is    not    something     to    be   lightly    cast
         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
    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
    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
         1.      A Consent Decree Requires the Consent of All Parties
                 Whose Legal Rights Will Be Affected By the Decree
          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.
           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
    5th Cir. 1981) (en banc), and White v. Alabama, 
    74 F.3d 1058
    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
    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.”
          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
          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
    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:
                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
    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
    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
                   This case requires us to examine the
              circumstances under which, and the procedure
              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
    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
    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
          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
    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,
    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
          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
         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.
    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
         The dissenting opinion also relies heavily upon Franks v.
    Bowman Transportation Co., 
    424 U.S. 747
    96 S. Ct. 1251
    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
    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
    “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
    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
         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
    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
    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
         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
    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
             See supra note 2.
    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
    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
    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
          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
    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
    contractual rights can be discarded without affording that party
    the right to litigate the case on the merits.
         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
    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.

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 )

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

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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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