664 F.2d 435 (5th Cir. 1981), 77-1856, United States v. City of Miami, Fla.

Docket Nº:77-1856.
Citation:664 F.2d 435
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. The CITY OF MIAMI, FLORIDA, et al., Defendants-Appellees, v. FRATERNAL ORDER OF POLICE, CITY OF MIAMI LODGE NO. 20, Kenneth R. Harrison, President, and the Miami Police Benevolent Association, Defendants-Appellants.
Case Date:December 03, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 435

664 F.2d 435 (5th Cir. 1981)

UNITED STATES of America, Plaintiff-Appellee,


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



Kenneth R. Harrison, President, and the Miami

Police Benevolent Association,


No. 77-1856.

United States Court of Appeals, Fifth Circuit[*]

December 3, 1981

Page 436

Pelzner, Schwedock, Finkelstein & Klausner, Robert D. Klausner, Miami, Fla., for defendants-appellants.

Brian K. Landsberg, Mildred M. Matesich, U. S. Dept. of Justice, Civ. Rights Div., Griffin B. Bell, U. S. Atty. Gen., Washington, D. C., Drew S. Days, III, U. S. Atty., Miami, Fla., David L. Rose, Squire Padgett, Dept. of Justice, Washington, D. C., for the U. S.

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

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



The en banc court has been unable to arrive at a majority consensus as to reasoning and result in this case. Those concurring in the opinion prepared by Judge Gee would, for the reasons stated there, grant broader relief to the Appellant Fraternal Order of Police and a wider remand than would those concurring in the opinion prepared by Judge Rubin. Since all concurring in either opinion referred to agree, however, that at least the relief mandated by Judge Rubin's opinion should be granted, and since no majority exists to grant broader relief, it is that mandate which becomes the order of the court by which the district court should be guided on the remand that we direct. Those concurring only in Judge Gee's opinion dissent from the failure of the court's mandate to reverse and remand more broadly. Separate opinions follow.


ALVIN B. RUBIN, Circuit Judge, concurring in the Per Curiam, joined by BROWN, ANDERSON, RANDALL and THOMAS A. CLARK, Circuit Judges:

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.

I. Commencement of the Litigation

The Attorney General filed a complaint against the City of Miami, several of its officials, and two organizations of police officers, the Fraternal Order of Police (FOP) and the Miami Police Benevolent Association (PBA), alleging that the defendants were engaged in policies and practices discriminating against black, Spanish-surnamed, and female individuals with respect to employment opportunities and conditions of employment with the City, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1976), the fourteenth amendment to the Constitution of the United States, and 42 U.S.C. §§ 1981 and 1983. The complaint sought temporary and permanent injunctive relief.

II. Attorney General's Authority

The FOP contends that the Attorney General lacked authority to institute the

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action, citing the 1972 amendments to Title VII, Equal Employment Opportunity Act of 1972, Pub.L.No.92-261, 86 Stat. 103 (codified in scattered sections of 42 U.S.C.), empowering the Equal Employment Opportunity Commission (EEOC) to file pattern or practice suits that the Attorney General previously had been empowered to file. 42 U.S.C. § 2000e-6(c). 1 The FOP contends that, after 1974, 2 only the EEOC could institute such actions against public employers; however, Congress has now explicitly authorized only the Attorney General to do so. Reorganization Plan No. 1 of 1978, § 5, reprinted in (1978) U.S.Code Cong. & Admin.News 9795, 9800 (prepared and transmitted pursuant to 5 U.S.C. §§ 901-912).

Applying the 1978 Reorganization Plan to pending litigation contradicts neither "statutory direction (n)or legislative history" and would not cause "manifest injustice." Bradley v. School Bd., 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476, 488 (1974). In accordance with decisions by both the Fourth and Ninth Circuits, therefore, we hold it applicable to this proceeding and affirm the Attorney General's authority to institute the action. United States v. Virginia, 620 F.2d 1018, 1022 (4th Cir.), cert. denied, 449 U.S. 1021, 101 S.Ct. 589, 66 L.Ed.2d 483 (1980); United States v. Fresno Unified School Dist., 592 F.2d 1088, 1093-94 (9th Cir.), cert. denied, 444 U.S. 832, 100 S.Ct. 62, 62 L.Ed.2d 41 (1979); United States v. North Carolina, 587 F.2d 625, 626 (4th Cir. 1978) (per curiam), cert. denied, 442 U.S. 909, 99 S.Ct. 2820, 61 L.Ed.2d 274 (1979). 3

III. Litigation History

Negotiations between the Attorney General and the City apparently preceded the filing of the complaint, for the day after it was lodged the City filed an answer denying the charges of discrimination. A month later the FOP and the PBA filed an answer denying the allegations of the complaint and raising thirteen affirmative defenses to which, shortly thereafter, they added a fourteenth. The FOP, as collective bargaining agent, represents all ranks in the City police force up to and including captain. The record discloses neither the function of the PBA nor why it was joined as a defendant, for it is not a collective bargaining

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agent, 4 nor why it should be enjoined by the court. Therefore, we hereafter refer only to the FOP as the party adverse to the relief now jointly sought by the United States and the City.

On February 18, 1976, the United States and the City filed a proposed consent decree signed by both. This decree was approved by the district court over objections to its entry by the FOP.

Nine days later, the FOP filed a motion to vacate the decree. After hearing argument on the motion, the court vacated the decree on April 2, stating that it was "improvidently signed" because some of the activities that it required of the City violated some of the provisions of the collective bargaining agreement between the City and the FOP. The district judge thought that all the parties might be able to reach an accord, for he directed that all of them attempt to arrive at another agreement. If there still remained unreconciled differences, then he would have "another hearing to see whether or not (the decree) does interfere" with the collective bargaining agreement. Discovery had been stayed, but, at the FOP's request, the protective order staying discovery was lifted on August 18. Thereafter the City and the Attorney General answered most of the FOP's interrogatories. 5

On September 30, the contract between the City and the FOP expired. By December, negotiators for the City and the FOP had agreed to renew the contract, with some modifications, retroactive to October 1. This modified contract had been ratified by the Union, but it had not yet been signed by the City.

On November 17, the Attorney General and the City filed a motion to reinstate the consent decree, accompanied by an affidavit that the FOP and the City had been unable to resolve their differences; a stipulation containing statistics showing the composition both of the labor force in Miami and of the City's work force; a statement that the City Civil Service Board used unvalidated competitive examinations in making most of its hiring and promotion decisions; and statements that the City had received and was then receiving funds under the State and Local Fiscal Assistance Act of 1972 and the Omnibus Crime Control and Safe Streets Act of 1968. 6

On December 13, the court held "a hearing on a motion for Re-entry (sic)." The judge started the hearing by asking the FOP to state its objections to the proposed decree. The FOP then stated a number of reasons why it contended that the proposed decree was invalid, all of them based on its asserted violation of the FOP's rights or the Federal Constitution. The FOP urged, for example, that the decree would discriminate against whites; that it instituted a quota system; that it violated the union contract because it permitted promotions without following the civil service testing procedure; that it was not signed by the City Manager and had not been approved by the City Council; that its provisions for deferment of pensions (now deleted, see p. 439 infra) violated the union contract; and that it improperly forbade the City Civil Service System to continue to use "unvalidated" tests. Although the FOP urged that the court conduct a "full-blown trial," it mentioned no evidence that it would introduce at such a trial; it proffered no

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evidence and did not attempt to controvert in any way the stipulation between the United States and the City.

Although the record is not explicit, apparently the FOP was asking that the court...

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