Birmingham Fire Fighters 117 v. Jefferson County

• Decision Date: 07 January 2002
• Docket Number: No. 01-14262.,01-14262.
• Citation: 280 F.3d 1289
• Parties: BIRMINGHAM FIRE FIGHTERS ASSOCIATION 117, et al., Plaintiffs, Wilks Class, Plaintiff-Appellant, v. JEFFERSON COUNTY, Ben L. Erdreich, Thomas W. Gloor, Chriss H. Doss, Jefferson County Personnel Board, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

280 F.3d 1289

BIRMINGHAM FIRE FIGHTERS ASSOCIATION 117, et al., Plaintiffs Wilks Class, Plaintiff-Appellant, v. JEFFERSON COUNTY, Ben L. Erdreich, Thomas W. Gloor, Chriss H. Doss, Jefferson County Personnel Board, et al., Defendants-Appellees.

No. 01-14262.

United States Court of Appeals, Eleventh Circuit.

January 7, 2002.

Gary L. Brown, Raymond P. Fitzpatrick, Jr., Fitzpatrick, Cooper & Clark, LLP, Birmingham, AL, for Plaintiff-Appellant.

Albert L. Jordan, Wallace Jordan, Ratliff & Brandt, L.L.C., Birmingham, AL, for Jefferson County.

Anne R. Yuengert, Scott B. Smith, Bradley, Arant, Rose & White, Shirley I. McCarty, Birmingham, AL, Andrea M. Picciotti-Bayer, U.S. Dept. of Justice, Washington, DC, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before ANDERSON, Chief Judge, and DUBINA and CARNES, Circuit Judges.

CARNES, Circuit Judge:

This appeal is the latest round in the protracted litigation over the procedures used by the Jefferson County Personnel Board and the City of Birmingham to hire and promote City employees — litigation that would have recently celebrated its 25th birthday, if such a thing were cause for celebration.

The original suit was brought by black plaintiffs who claimed that the City's hiring practices discriminated against them. In 1981, the district court entered two consent decrees, one between the City and the original plaintiffs ("City consent decree"), and the other between the Board and the original plaintiffs. Then the Wilks class, a class of all present and future male, nonblack city employees, attempted to collaterally challenge the consent decrees on the ground that they unlawfully discriminated on the basis of race in favor of blacks. Ultimately, the Supreme Court decided that the Wilks class was entitled to bring its collateral challenge. Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989). After that decision, the Wilks class was allowed to intervene in the underlying litigation, and the consent decrees were modified.

In 1995, the decrees were modified again pursuant to instructions given by this Court in Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d 1548, 1552, 1583-84 (11th Cir.1994). According to our instructions, the City consent decree was modified to require the City to remove all race- and gender-conscious selection procedures from its employment policies. Ensley Branch, N.A.A.C.P. v. Seibels, Nos. 74-Z-12-S, 74-Z-17-S, 75-P-0666-S (N.D.Ala. Dec. 20, 1995) ("1995 Order Modifying Consent Decree"). After the remand in Ensley Branch, the parties clarified their differences, narrowing to fourteen the number of positions that some or all parties contended were being filled by selection procedures that had an adverse impact.¹ The City decree was modified yet again in December 2000 to direct the City to provide data as to the impact of its selection procedures upon hiring for those jobs.² Ensley Branch, N.A.A.C.P. v. Seibels, Nos. CV-74-12-S, CV-74-S-17-S, CV-75-S-666-S (N.D.Ala. Dec. 18, 2000) ("2000 Order Modifying Consent Decree"). At that same time, it was extended until June 2002. Id.

The City and the Wilks class each had experts analyze the data provided pursuant to the December 2000 modification of the consent decree. When the dust had settled, both sides agreed that the selection procedures for the position of Fire Lieutenant do not have an adverse impact. They disagreed, however, as to whether the procedures for seven of the other positions have an adverse impact — the Wilks class said they do, while the City said they do not.³ The City then asked the district court to determine whether the City's selection procedures for the disputed positions have an adverse impact on race and gender. The City contended that the Wilks class could not show adverse impact,⁴ while the Wilks class contended it did not have to show adverse impact because the 1995 Order Modifying Consent Decree put on the City the burden of showing the absence of adverse impact. To support its contention, the Wilks class relied on paragraph 8 of the 1995 Order Modifying Consent Decree, which states:

It shall be the City's responsibility to ensure that each selection procedure required or used by the City shall either: (1) have no adverse impact on the basis of race or sex as defined by the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607 et seq. (1994) (hereinafter "the Uniform Guidelines"); or (2) be job related for the job classification(s) in question and consistent with business necessity, in accordance with Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Uniform Guidelines and other applicable Federal law.

Mem. Op. at 9 (quoting 1995 Order Modifying Consent Decree (footnote omitted)).

After a hearing, the district court determined that the Wilks class, as the complaining party, had the burden of persuasion on the issue of adverse impact, stating that "despite the wording of that particular paragraph or the interpretation assigned to it, statutory and judicial authorities relating to employment discrimination place the burden of persuasion squarely on the party complaining that a selection procedure has adverse impact, i.e., the Wilks class." Mem. Op. at 10. Further, the district court, having considered the expert opinions presented by both sides, found that the Wilks class had failed to meet its burden, and therefore it ruled that the City had satisfied the requirements of paragraph 8 of the 1995 Order Modifying Consent Decree as to six of the challenged job classifications and as to the challenged post-job screening procedures of another position.⁵ Id. at 35-41.

The Wilks class has appealed that ruling. In response, the City has moved to dismiss the appeal, asserting that the district court order is an interlocutory decision that does not qualify for appeal under 28 U.S.C. § 1292(a)(1). Section 1292(a)(1) allows appeal from "[i]nterlocutory orders of the district courts of the United States... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions...." The City argues that the district court's order merely interpreted paragraph 8 of the existing 1995 Order Modifying Consent Decree, and therefore that it does not fall within the purview of § 1292(a)(1). The Wilks class responds that the district court's interpretation of paragraph 8 runs so contrary to that paragraph's plain language that it actually constitutes a modification of the decree, and thus it is the proper subject of an interlocutory appeal under the statute.

In order to decide whether the district court's order is ripe for appeal under § 1292(a)(1), a reviewing court must first examine "whether there [is] an underlying decree of an injunctive character," and then decide whether the ruling appealed from has "changed the underlying decree in a jurisdictionally significant way." Sierra Club v. Marsh, 907 F.2d 210, 212 (1st Cir.1990). In this case, there is no dispute that there is an underlying decree of an injunctive character — the 1995 Order Modifying Consent Decree is that. The question is whether the order now being appealed by the Wilks class — the 2000 Order Modifying Consent Decree — has altered the decree in a jurisdictionally significant way.

Of course, we are not governed by the district court's own characterization of the order as an "interpretation" or "clarification," as distinguished from a "modification." See Gautreaux v. Chicago Hous. Auth., 178 F.3d 951, 956-57 (7th Cir.1999) ("This court has repeatedly held that it will look beyond labels such as `clarification' or `modification' to consider the actual effect of the order."). Instead, we make our own determination, and in doing so we take a "functional approach, looking not to the form of the district court's order but to its actual effect." Marsh, 907 F.2d at 213. Functionally, an order modifies the original decree when it actually changes the legal relationship of the parties to the decree. Gautreaux, 178 F.3d at 957. Our underlying task, then, is to decide whether the order has changed the legal relationship of the parties. Their legal relationship does not change merely because the district court finds that one party has satisfied some of the pre-existing requirements of the decree; instead, to effect a change in the legal relationship of the parties, the order must "change the command of the earlier injunction, relax its prohibitions, or release any respondent from its grip." Marsh, 907 F.2d at 213.

In attempting to discern interpretation from modification, however, we should not analyze the injunction and the order in detail. To plunge into the details would collapse the jurisdictional inquiry into a decision on the merits, thwarting the purpose of § 1292(a)(1). The statute is deliberately careful in limiting the availability of interlocutory review of orders concerning injunctions. And with good reason. The Supreme Court, this Court, and our sister circuits all have warned of the dangers of piecemeal appeals and have emphasized that, to guard against this danger, § 1292(a)(1) must be construed narrowly so as to limit the availability of interlocutory appeals in cases involving injunctions. See Switzerland Cheese Ass'n v. E. Horne's Market, Inc., 385 U.S. 23, 24, 87 S.Ct. 193, 195, 17 L.Ed.2d 23 (1966) ("[W]e approach this statute somewhat gingerly lest a floodgate be opened that brings into the exception many pretrial orders."); United States v. City of Hialeah, 140 F.3d 968, 973 (11th Cir.1998) ("Congress did not intend for the injunction exception to open the floodgates to piecemeal appeals."); Marsh, 907 F.2d at 214 (allowing "an interlocutory appeal at every succeeding step after an injunction had been granted" would be "opening Pandora's jar"). If we were to answer the jurisdictional question — whether the district court's order "modifie...