E.E.O.C. v. Local 40, Intern. Ass'n of Bridge, Structural and Ornamental Iron Workers, Joint Apprenticeship Committee, Iron Workers Locals 40 & 361 and Allied Bldg. Metal Industries

• Decision Date: 12 February 1996
• Docket Number: No. 148,D,148
• Court: U.S. Court of Appeals — Second Circuit
• Parties: 67 Empl. Prac. Dec. P 43,915 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. LOCAL 40, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, the JOINT APPRENTICESHIP COMMITTEE, IRON WORKERS LOCALS 40 & 361 ... AND ALLIED BUILDING METAL INDUSTRIES, Defendant-Appellant. ocket 95-6011.

Page 76

76 F.3d 76

67 Empl. Prac. Dec. P 43,915

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. LOCAL 40, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, the JOINT APPRENTICESHIP

COMMITTEE, IRON WORKERS LOCALS 40 & 361 ... AND ALLIED

BUILDING METAL INDUSTRIES, Defendant-Appellant.

No. 148, Docket 95-6011.

United States Court of Appeals, Second Circuit.

Argued Oct. 5, 1995.

Decided Feb. 12, 1996.

Edward J. Groarke, Garden City, NY (John F. Mills, and Carol L. O'Rourke, James Brown, Colleran, O'Hara & Mills, Garden City, NY, of counsel), for Defendant-Appellant.

Karen M. Moran, Equal Employment Opportunity Commission, Washington, D.C. (John P. Rowe, General Counsel (Acting), Gwendolyn Young Reams, Associate General Counsel, and Vincent J. Blackwood, Assistant General Counsel, Equal Employment Opportunity Commission, Washington, D.C., of counsel), for Plaintiff-Appellee.

Before: ALTIMARI, McLAUGHLIN, and PARKER, Circuit Judges.

PARKER, Circuit Judge:

In October 1993, plaintiff-intervenors Willie Ellis and Roysworth D. Grant asked a district court to find appellant Local 40 in contempt of court for discriminating against nonwhite union members and applicants in violation of a 1980 consent decree. Local 40 appeals from the order of the Southern District of New York (Carter, J.) asserting subject matter jurisdiction over this motion for contempt. The union also challenges the standing of the individual plaintiffs. For the following reasons, we hold that the consent decree had expired by its own terms before the commencement of contempt proceedings. The order of the Southern District of New York asserting jurisdiction over this matter based on the 1980 consent decree is reversed.

BACKGROUND

On June 29, 1971, the Department of Justice instituted a lawsuit against several construction trade unions, charging that they had discriminated against nonwhite members and applicants in violation of Title VII, 42 U.S.C. §§ 2000e-17 (1994). The complaint named appellant Local 40 as a defendant. After a bench trial in which he found that Local 40 had engaged in unlawful discrimination, Judge Gurfein issued an order on December 18, 1972, requiring Local 40 to implement certain changes in its membership and referral practices. See United States v. Local 638, 347 F.Supp. 169 (S.D.N.Y.1972).

In 1977, the EEOC, which had been substituted for the United States as plaintiff in the suit, commenced contempt proceedings against Local 40 for alleged noncompliance with Judge Gurfein's order. Grant, Ellis, and a third individual, Louis Martinez, were granted plaintiff-intervenor status in the suit by Judge Werker, who had inherited the case from Judge Gurfein. In 1980, the parties settled the lawsuit by entering into a consent decree. EEOC v. Local 638, No. 71 Civ. 2877 (S.D.N.Y. Mar. 5, 1980). That decree, the terms of which are at issue in the present suit, is referred to by the parties as the "Werker Order."

In the Werker Order, Local 40 expressly agreed to take certain affirmative steps to ensure fairness in hiring and referrals. The union would retain a "permanent log" of all persons in attendance at the referral hall each day, and of all applicants for referral. It agreed to assign a number to each applicant, based consecutively on the time he applied for a referral, and to award referral preference based on numbers alone. The union also agreed that it would name as union stewards a percentage of minorities at least equal to the percentage of minority members in the union. The decree contained two passages that are of particular relevance to the present dispute:

1. Defendant, Local 40, its officers, agents, members, employees and servants are permanently enjoined and restrained from discriminating against Blacks and other minority group members because of their race and/or national origin in violation of this Order.

....

13. This Order, as modified, shall expire three (3) years from the date of entry hereof; notwithstanding the foregoing, EEOC shall have the right, upon good cause shown, to make application to the Court at least thirty (30) days prior to the expiration of this Order to have the same extended beyond the expiration date on such terms and conditions as the Court may direct.

(Emphases added.) The EEOC has never moved for an extension of the decree.

In November 1993, plaintiffs Grant and Ellis moved the court to find Local 40 in contempt for violating the 1980 consent decree. ¹ The union countered with two defenses:

(1) that the consent decree had expired in 1983, depriving the court of jurisdiction to enforce it, and (2) Grant and Ellis did not have standing to enforce the decree, which by its own terms placed enforcement power solely in the hands of the EEOC.

Judge Carter, who had inherited this case from Judge Werker, rejected both of these arguments. He asserted jurisdiction over the motion for contempt arising from the Werker Order, concluding that paragraph thirteen of the order neither dissolved the consent decree, nor deprived the court of its inherent power to enforce consent judgments. EEOC v. Local 40, Int'l Ass'n of Bridge, Structural and Ornamental Iron Workers, 885 F.Supp. 488, 493-94 (S.D.N.Y.1994). He also found that Grant and Ellis had standing to enforce the Werker Order, both by the terms of the order and under Rule 71 of the Federal Rules of Civil Procedure. Id. The defendants moved the district court for an order certifying appeal of the order. The motion was denied. This appeal followed.

DISCUSSION

I. Jurisdiction

The first issue for our consideration is whether we have jurisdiction to hear this appeal. Ordinarily, federal courts of appeals may only exercise jurisdiction over "final decisions" of the district courts. 28 U.S.C. § 1291 (1993). However, appellants argue that 28 U.S.C. § 1292(a)(1) gives this court jurisdiction to review Judge Carter's order asserting jurisdiction over the 1980 consent decree. Section 1292 gives courts of appeals jurisdiction over certain interlocutory decisions, including orders "granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions...." 28 U.S.C. § 1292(a)(1) (1993).

To resolve this jurisdictional issue, we must consider the merits of the issue defendants seek to appeal. If the district court erroneously interpreted the terms of the consent decree, it "modified" that injunction within the meaning of § 1292(a)(1). If we conclude that such a modification has occurred, and that the order of the district court "might have a 'serious, perhaps irreparable, consequence' " for Local 40 that "can be 'effectually challenged' only by immediate appeal," Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 997, 67 L.Ed.2d 59 (1981) (quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955), overruled on other grounds by Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988)), then we have jurisdiction to review the order. In other words, we must consider the issue on appeal--whether the district court correctly interpreted the consent decree--to determine whether we have jurisdiction to consider the appeal at all. ²

II. The Merits

Consent decrees are interpreted according to principles of contract law. United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 935, 43 L.Ed.2d 148 (1975). As settlement agreements, the decrees themselves are compromises; "in exchange for the saving of cost and elimination of risk, the parties each give up something they might have won had they proceeded with the litigation." United States v. Armour & Co., 402 U.S. 673, 681, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971). Thus, "[t]he court is not entitled to expand or contract the agreement of the parties as set forth in the consent decree." Berger v. Heckler, 771 F.2d 1556, 1568 (2d Cir.1985). Instead, the language of a decree should define the obligations of the parties. Extrinsic evidence should only be considered when the decree itself is ambiguous. Armour, 402 U.S. at 682, 91 S.Ct. at 1757 ("[T]he scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it."); SEC v. Levine, 881 F.2d 1165, 1179 (2d Cir.1989) ("Extrinsic evidence ... may generally be considered only if the terms of the judgment, or of documents incorporated in it, are ambiguous."). We review the district court's interpretation of a consent decree de novo. United States v. O'Rourke, 943 F.2d 180, 186 (2d Cir.1991); United States v. International Bhd. of Teamsters, 931 F.2d 177, 182 n. 1 (2d Cir.1991).

The district court found the consent decree at issue to be "at least ambiguous." Local 40, 885 F.Supp. at 493. It based this finding on a perceived conflict between the first paragraph of the decree, which provides that Local 40 is "permanently enjoined and restrained from discriminating against Blacks and other minority group members because of their race and/or national origin in violation of this Order," id. at 492, and the thirteenth paragraph of the decree, which provides that "[t]his Order, as modified, shall expire three (3) years from the date of entry hereof ... [absent a successful motion for extension by the EEOC.]" Id. at 492-93 (emphasis added).

We fail to perceive the conflict between these two provisions, and therefore disagree with the district court's finding of ambiguity. The thirteenth paragraph of the Werker Order unambiguously states that, absent a motion by the EEOC to extend the decree for good cause, the decree "shall expire" three years from its date of entry. The use of the word "permanently" in the first paragraph does not alter our conclusion. Judges often use the word "permanent" to distinguish post-litigation or post-settlement injunctions such as this one from the...