Black Ass'n of New Orleans Fire Fighters (BANOFF) v. City of New Orleans, La.

• Decision Date: 25 August 1988
• Docket Number: No. 88-3098,88-3098
• Citation: 853 F.2d 347
• Parties: 58 Fair Empl.Prac.Cas. 1879, 47 Empl. Prac. Dec. P 38,239 BLACK ASSOCIATION OF NEW ORLEANS FIRE FIGHTERS (BANOFF), Plaintiffs-Appellees, v. The CITY OF NEW ORLEANS, LOUISIANA, A Municipal Corp., Sidney Barthelemy, In His Capacity as Mayor of New Orleans, et al., Defendant-Appellees v. NEW ORLEANS FIREFIGHTERS ASSOCIATION, LOCAL # 632, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 347

853 F.2d 347

58 Fair Empl.Prac.Cas. 1879,

47 Empl. Prac. Dec. P 38,239

BLACK ASSOCIATION OF NEW ORLEANS FIRE FIGHTERS (BANOFF), Plaintiffs-Appellees, v. The CITY OF NEW ORLEANS, LOUISIANA, A Municipal Corp., Sidney Barthelemy, In His Capacity as Mayor of New

Orleans, et al., Defendant-Appellees v. NEW ORLEANS FIREFIGHTERS ASSOCIATION, LOCAL # 632,

Defendant-Appellant.

No. 88-3098.

United States Court of Appeals Fifth Circuit.

Aug. 25, 1988.

Gilbert R. Buras, Jr., Metairie, La., for defendant-appellant.

Ralph D. Dwyer, Jr., New Orleans, La., for N.O. Civil Service Comm.

Okla Jones, II, City Atty., George Blair, III, New Orleans, La., for City of New Orleans, Barthelemy, McCrossen.

Judith Reed, New York City, Marc H. Morial, New Orleans, La., for Black Assoc.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before THORNBERRY, WILLIAMS and SMITH, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

New Orleans Firefighters Association, Local no. 632, appeals the district court's denial of its motion asking the court to vacate an earlier order restraining the City from promoting firefighters to the rank of captain pending judgment on appellees' civil rights suit alleging discriminatory employment practices. We find that the union had standing to seek modification of the restraining order, and construe the restraining order as injunctive in nature. We reverse the district court's order denying appellant's motion to vacate the earlier restraining order, and remand for a hearing on the earlier order.

I.

In August, 1985, the New Orleans City Civil Service Commission (the Commission) administered a Fire Captain Examination which it had prepared, it contends, in accordance with EEOC guidelines. It asserts that the examination was prepared at considerable expense and with the assistance of qualified expert consultants. In January, 1986, the Commission prepared a register of Fire Department employees eligible for promotion to the rank of captain, based on the results of the examination. The register listed 179 persons who had passed, ranking their names according to scores and seniority. The list included 20 blacks, concentrated mainly at the bottom of the register. Only one black would have been appointed to fill any of the 47 captain vacancies at that time based on the register rankings.

On April 10 or 11, ¹ 1986, the Black Association of New Orleans Firefighters and four black members of the New Orleans Fire Department (appellees) filed suit against the City of New Orleans and others, including the Commission and Local 632 ² (the union) under 42 U.S.C. Secs. 2000e et seq. [Title VII], ³ and 42 U.S.C. Secs. 1981, 1982, and 1983, alleging violation of their Thirteenth and Fourteenth Amendment rights. In their complaint, appellees contended that use of the Fire Captain Promotional Examination and the promotion register created pursuant to it impacted disparately and adversely on black applicants for promotion. Appellees also sought a temporary restraining order and preliminary injunction enjoining use of the register and the promotion of any firefighters to the rank of captain. The district court denied appellees' application for a TRO in a handwritten order dated 11:35 A.M., April 11, 1986. ⁴

Apparently without first notifying the union or the Commission, appellees then presented to the court for its approval a document entitled "ORDER" which they had drafted. The court signed this ORDER on May 8, 1986. ⁵ The ORDER stated:

IT IS STIPULATED AND AGREED between the plaintiffs and defendants, City of New Orleans, Ernest Morial, William McCrossen, and the New Orleans City Council and the Court hereby ORDERS that:

1. The defendants, the City of New Orleans, William McCrossen, Superintendant of the Fire Department, Ernest N. Morial, the Mayor of the City of New Orleans, the Council of the City of New Orleans, and any other employees or agents acting on their behalf, are hereby restrained from making any further appointments, promotions, or selections to the position of Fire Captain and are prohibited from utilizing the January 27, 1986 Fire Captains' promotional register compiled by the New Orleans Civil Service Commission, until such time as the trial on the merits is had.

2. It is further provided that any party may seek further orders of the court granting relief from this order upon good cause shown. This order shall issue as of April 11, 1986, and shall be continued in force until further orders of this court.

The ORDER also recites that it resulted from a "hearing on an application for a temporary restraining order on April 11, 1986," and that appellant union and the Commission were "unrepresented" at that hearing. ⁶ The docket does not reflect that any hearing was held on that date, and appellant union and the Commission aver that they were not notified about any such hearing. There is no record evidence that they saw the language contained in the draft order prior to May 8, 1986, and no evidence as to when it first came to their attention afterwards. There is no record evidence that the ORDER was ever served on the union or the Commission. Neither the union nor the Commission appealed the ORDER.

Some eighteen months later, on December 11, 1987, the union filed a motion in the district court to vacate the May 8, 1986 ORDER on various grounds. ⁷ In its brief, the union states that its 1987 motion had argued that the ORDER was tantamount to a preliminary injunction and as such it was deficient in several respects mandated by Rule 65, Fed.R.Civ.P. In support of its 1987 motion, the union submitted an affidavit by the City's Fire Administrator which stated:

[T]he Department of Fire anticipates that within the next 90 days seven vacancies will be available for promotional opportunities and that after exhaustion of the list of demotees eligible for re-promotion, such vacancies would be filled from the promotional register established by the [Commission] on January 27, 1986, absent any court ordered restraint on the use of said promotional register.

Following status conference, by order filed February 4, 1988, the district court denied the union's motion to vacate the ORDER. The ORDER has now been in effect more than two years. ⁸ As of the time of oral argument, June 8, 1988, no date had been set for appellees' suit on the merits, nor have we been advised that such hearing has since been docketed. The union timely appealed the court's February 4, 1988 order.

II.

On appeal, appellant union contends (1) that the ORDER is injunctive in nature, and not a consent decree; (2) that the ORDER was entered without adequate notice to interested parties; (3) that by its continuing effect, the ORDER is a preliminary injunction issued without notice of hearing and without appellees' having been required to bear the requisite burden of proof; and (4) that the court erred in holding that the union lacked standing to challenge the ORDER; In its brief, ⁹ the Commission argues that the ORDER was in effect a preliminary injunction and as such was procedurally defective, having been issued without hearing, and in several other respects was noncompliant with Rule 65(b), Fed.R.Civ.P. The union and the Commission ¹⁰ ask this Court to vacate the 1986 ORDER.

Appellees contend that this Court lacks jurisdiction to review the ORDER inasmuch as neither the union nor the Commission timely appealed it pursuant to Rule 4 Fed.R.App.P., which requires that appeals be filed within 30 days after the entry of judgment. Appellees also argue that the court's February 4, 1988 order is neither a final order within Rule 54(b) nor an appealable interlocutory order within 28 U.S.C. Sec. 1292(a) and that this Court therefore lacks jurisdiction to review it. Additionally, they urge that in any event the district court acted within its discretion both in issuing the ORDER which was agreed to by the parties and merely maintained the status quo pending trial, and in denying appellant's motion to vacate the ORDER which had been entered 18 months earlier.

Notwithstanding the several peculiar and seemingly inexplicable procedures, omissions, and contradictions which pervade the record, the legal issues are relatively straightforward. We begin with certain preliminary questions.

Appellant union ¹¹ and appellees, in an "Agreed Statement as to Record on Appeal," ¹² stipulate that the union here appeals the denial in 1988 of its motion to vacate the district court's ORDER dated May 8, 1986. ¹³

The 1988 denial itself stated no grounds. Styled as a "Minute Entry," it stated simply, "The Motion to Vacate the order of May 8, 1986, is denied." But in their "Agreed Statement" appellant union, appellees, and the other parties stipulate that the court denied the union's motion to vacate the 1986 ORDER "on grounds that Local 632, mover, had no standing to challenge the Order." In addition, appellees argue that the court's February 4, 1988 order resulted in a holding "that the May 8th order had been entered pursuant to stipulation and agreement." Appellant, however, contends that the 1986 ORDER was a defective temporary or preliminary injunction, not a consent decree.

The principal issue before us is whether the appellant union had standing to challenge the 1986 ORDER. In addressing this issue, we must necessarily resolve the question whether the ORDER was in the nature of an injunction, or a consent decree. Because appellees question it, we also address our jurisdiction.

A. Appellant Union's Standing

The 1986 ORDER, in terms, provided that "any party may seek further order of the Court granting relief from this order upon good cause shown." Appellant union and the Commission were named as parties in appellees' suit filed April 10 or 11, 1986. Moreover, the union is named as a defendant in all of appellees' record filings in connection with this suit, including their motion for a TRO and preliminary injunction. We...