614 F.2d 1322 (5th Cir. 1980), 77-1856, United States v. City of Miami, Fla.

Docket Nº:77-1856.
Citation:614 F.2d 1322
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. The CITY OF MIAMI, FLORIDA, et al., Defendants-Appellees, Fraternal Order of Police, City of Miami Lodge No. 20, Kenneth R. Harrison, President, and The Miami Police Benevolent Association, Defendants-Appellants.
Case Date:April 10, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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614 F.2d 1322 (5th Cir. 1980)

UNITED STATES of America, Plaintiff-Appellee,

v.

The CITY OF MIAMI, FLORIDA, et al., Defendants-Appellees,

Fraternal Order of Police, City of Miami Lodge No. 20,

Kenneth R. Harrison, President, and The Miami

Police Benevolent Association,

Defendants-Appellants.

No. 77-1856.

United States Court of Appeals, Fifth Circuit

April 10, 1980

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Irving Weinsoff, Miami, Fla., for defendants-appellants.

David L. Rose, Squire Padgett, Dept. of Justice, Civ. Rights Div., Washington, D. C., for plaintiff-appellee.

George F. Knox, Jr., Miami, Fla., for City of Miami.

Appeal from the United States District Court for the Southern District of Florida.

Before THORNBERRY, GOLDBERG and GEE, Circuit Judges.

GOLDBERG, Circuit Judge.

Today we have before us a pair of cases involving the interrelationship of "reverse discrimination," affirmative action, and the principles governing consent decrees. In this case, along with the companion case of United States v. City of Alexandria, 614 F.2d 1358 (5th Cir. 1980), we are faced with novel and difficult issues concerning consent decrees negotiated between the federal government and representatives of local governments settling suits alleging a "pattern or practice" of employment discrimination. We hold here that the district court acted properly in approving the consent decree presented for his approval, because the consent decree is not unreasonable, unconstitutional, illegal, or against public policy. In so holding, we necessarily reach the question of the status of affirmative action after the Supreme Court's decision in Regents of University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), and affirm the post-Bakke validity of race- and sex-conscious affirmative action plans in this circuit. The two cases also require us to explore in some detail the roles and responsibilities of the parties to the lawsuit, the district judge, and the appellate court in this consent decree context.

The procedural history of this case involved a large amount of skirmishing over various issues. The history which is germane to this appeal will be set out at some length, although very little of substance occurred. On December 29, 1975, the Attorney General filed a Complaint against the City of Miami, various of its officials, and several organizations of police officers alleging that the defendants were engaged in policies and practices that discriminate against black, Spanish-surnamed, and female individuals with respect to employment opportunities and conditions of employment within the City of Miami, in violation of Title VII of the Civil Rights Act of 1964, the Fourteenth Amendment to the Constitution of the United States, and 42 U.S.C. §§ 1981 and 1983. The Complaint sought preliminary and permanent injunctive relief. Jurisdiction was predicated on Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 42 U.S.C. § 3701 et seq., and the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. § 1242.

On December 30, 1975, Defendant City of Miami filed an answer denying the substantive charges of discrimination. On January 28, 1976, Defendants Fraternal Order of Police (FOP) and Miami Police Benevolent Association (PBA) filed an Answer denying the substantive allegations of the Complaint and raising thirteen affirmative defenses. 1 On February 18, 1976, a consent decree, agreed to by the United States and

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the City of Miami, was approved by the court. The decree states that it does not constitute an adjudication or an admission by any of the defendants of any violation of law, and provides for affirmative action in hiring and promotional procedures in favor of blacks, Spanish-surnamed individuals, and women. On February 27, 1976, FOP and PBA filed a motion to vacate the consent decree, asserting several grounds for its invalidity. On April 2, the court issued an order vacating the consent decree, finding that some of the activities ordered on the part of the City of Miami violated certain provisions of the collective bargaining agreement between the City and FOP and PBA. 2

On May 28, 1976, the United States and the City of Miami jointly moved for re-entry of the consent decree. A similar motion was filed on November 17, 1976, 3 accompanied by an affidavit attesting that the FOP and the City had been unable to negotiate their differences and by a statement of uncontested facts containing statistics concerning the composition of the labor force in the Miami area and of the workforce employed by the City.

After a hearing before the court on December 13, the United States and the City of Miami made several modifications in the proposed decree, responding to the court's concerns raised at the hearing. After a further hearing on February 8, 1977, at which the court raised other concerns relating to the decree, the court finally re-entered the decree, as modified, on March 31, 1977. 4 It found that the decree did not violate the contractual relationship between the City and the FOP and PBA. The FOP and PBA appealed the order re-entering the consent decree, and unsuccessfully sought to stay enforcement of the judgment pending appeal.

In sum, then, the relevant procedural history on this appeal is that a complaint was filed, defendants answered, and a consent decree was signed between the United States and the City of Miami over the objections of the unions which represent Miami Police Officers. We must decide whether the court properly entered the decree.

I.

We will first address two preliminary contentions of the FOP that the Attorney General lacked authority to institute this action, and that the court could not have approved the decree without the consent of the FOP.

A. Authority of Attorney General

FOP argues that the Attorney General lacks authority to institute this action under the 1972 amendments to Title VII, 42 U.S.C. § 2000e-6, 5 which effected a transfer of authority concerning "pattern or practice" suits from the Attorney General to the EEOC. The Attorney General argues that this transfer of authority only related to suits against private employers, and that the Attorney General retained authority to initiate pattern or practice suits against public employers.

Although for some time the ultimate resolution of this issue remained doubtful, see United States v. Board of Education of Garfield Heights, 581 F.2d 791 (6th Cir. 1978); United States v. South Carolina, 445 F.Supp. 1094, 1110-1111 (D.S.C.1977) (three-judge court), aff'd without opinion, 434 U.S. 1026, 98 S.Ct. 756, 54 L.Ed.2d 775 (1978), Congress has recently spoken plainly

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concerning its intent when the 1972 amendments were made. Both the Senate and House Committee Reports to Reorganization Plan No. 1 of 1978 6 have clearly stated that the 1972 transfer of authority related only to suits against private employers, and that the Attorney General retained jurisdiction to initiate pattern or practice suits against state and local governments. See S.Rep.No.750, 95th Cong., 2d Sess. 4 (1978); H.R.Rep.No.1069, 95th Cong., 2d Sess. 8 (1978). 7 After these reports, there can be little doubt that the 1972 amendments did not deprive the Attorney General of authority to bring pattern or practice suits against public employers. See United States v. Fresno Unified School District, 592 F.2d 1088 (9th Cir.), cert. denied, --- U.S. ----, 100 S.Ct. 62, 62 L.Ed.2d 41 (1979); United States v. North Carolina, 587 F.2d 625 (4th Cir. 1978); Garfield Heights, supra, 581 F.2d at 792 (dissenting opinion).

Even if the legislative history is not accepted as conclusive, we perceive no injustice in allowing the Attorney General to sue, and therefore apply the law in effect at present. Our duty is to apply the law as it stands at the time we render our decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary. Bradley v. School Board of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974). Accord Cort v. Ash, 422 U.S. 66, 77, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975).

Moreover, the Attorney General was amply authorized to institute suit by two independent statutory provisions, Section 122 of the State and Local Fiscal Assistance Act of 1972, P.L. 92-512, 86 Stat. 932 (Oct. 20, 1972) 8 and Section 518 of the Crime Control Act of 1973, P.L. 93-83, 87 Stat. 214 (Aug. 6, 1973). 9 The relevant provisions of these Acts at the time suit was instituted were very similar. Each act prohibited discrimination in all programs and activities which receive funds under it, 10 and each empowered the Attorney General, whenever he "has reason to believe that a State government or unit of local government is engaged in a pattern or practice in violation of the provisions of this section," to "bring a civil action in any appropriate United States district court for such relief as may be appropriate, including injunctive relief." State and Local Fiscal Assistance Act of 1972, supra, § 122(c); Crime Control Act of 1973, supra, § 518(c)(3).

Since the City has stipulated that it is a recipient of federal funds under each of these statutes, the authority of the Attorney General to bring suit under these statutes is unquestionable. Moreover, the standards

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to be applied, at least in a suit in which the Attorney General's authority is based on 42 U.S.C. § 3766, are the same as those applied under Title VII. See H.R.Rep.No.94-1723, 95th Cong., 2d Sess. at 32, reprinted...

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