Thaggard v. City of Jackson, s. 78-2980

• Decision Date: 19 November 1982
• Docket Number: Nos. 78-2980,78-3642,s. 78-2980
• Citation: 687 F.2d 66
• Parties: 32 Fair Empl.Prac.Cas. 228, 30 Empl. Prac. Dec. P 33,070 R. D. THAGGARD, et al., Plaintiffs-Appellants, v. The CITY OF JACKSON, Mississippi, a municipal corporation, et al., Defendants- Appellees. Ronald N. ASHLEY, Plaintiff-Appellant, v. CITY OF JACKSON, et al., Defendants-Appellees. R. D. THAGGARD, et al., Plaintiffs-Appellants, v. CITY OF JACKSON, et al., Defendants-Appellees. . Rehearing and Rehearing En Banc Denied
• Court: U.S. Court of Appeals — Fifth Circuit

Page 66

687 F.2d 66

32 Fair Empl.Prac.Cas. 228,

30 Empl. Prac. Dec. P 33,070

R. D. THAGGARD, et al., Plaintiffs-Appellants,

v.

The CITY OF JACKSON, Mississippi, a municipal corporation,

et al., Defendants- Appellees.

Ronald N. ASHLEY, Plaintiff-Appellant, v. CITY OF JACKSON, et al., Defendants-Appellees.

R. D. THAGGARD, et al., Plaintiffs-Appellants, v. CITY OF JACKSON, et al., Defendants-Appellees.

Nos. 78-2980, 78-3642.

United States Court of Appeals, Fifth Circuit.

Rehearing and Rehearing En Banc Denied Nov. 19, 1982.

Sept. 27, 1982.

Dixon L. Pyles, Ronald N. Ashley, Jackson, Miss., for plaintiffs-appellants.

Howard C. Ross, Jr., City Atty., Jackson, Miss., David L. Rose, S. Theodore Merritt, U. S. Dept. of Justice, Employment Sec., Civ. Rights Div., Washington, D. C., Mildred M. Matesich, Jessica Dunsay Silver, Peter C. Canfield, Civ. Rights Div., Dept. of Justice, Washington, D. C., George Phillips, U. S. Atty., Jackson, Miss., for defendants-appellees.

Appeals from the United States District Court for the Southern District of Mississippi.

Before GEE and JOHNSON, Circuit Judges, and VAN PELT ^*, District Judge.

JOHNSON, Circuit Judge:

This consolidated action involves two reverse discrimination cases. Plaintiffs in both cases contend that defendants maintain a discriminatory pattern, practice, and policy toward hiring and promotion. Defendants answer that the challenged practices are mandated by three consent decrees entered on March 25, 1975 in the cases of United States v. City of Jackson, Corley v. City of Jackson Police Department, and Bell v. City of Jackson. The consent decree entered in United States v. City of Jackson required, among other things, that the City of Jackson, Mississippi adopt and seek to achieve a goal of hiring blacks for one-half of all vacancies in all job classifications, subject to the availability of qualified applicants, until such time as the proportion of blacks to whites in each such classification equalled the proportion of blacks to whites in the working age population of the City of Jackson. The consent decree entered in Corley v. Jackson Police Department further provided, among other things, that the City of Jackson Police Department establish separate promotion eligibility lists for white and black employees and that it make future promotions, subject to the availability of qualified black candidates, alternately from each list in a one-to-one ratio until the proportion of black persons in supervisory positions and in the ranks of patrolmen substantially equalled the proportion of blacks to whites in the working age population of the City of Jackson. In the United States v. City of Jackson consent decree, the district court expressly retained "jurisdiction of this action for such further relief or other orders as may be appropriate." Each consent decree expressly incorporated the other by reference.

Plaintiffs' various motions to intervene in the cases resulting in consent decrees were denied. Additionally, the district court denied motions for temporary restraining orders and temporary injunctions, which were filed in hopes of preventing defendants from continuing certain practices.

The district court, however, granted the United States' motion to intervene in the consolidated cases. The district court also held that the independent reverse discrimination actions constituted an impermissible collateral attack upon the earlier consent decrees and, therefore, dismissed plaintiffs' complaints. This appeal followed. This Court affirms the judgment of the district court.

In this appeal, this Court is not faced with determining whether plaintiffs are entitled to intervene in the principal suits that resulted in the consent decrees. The question before this Court is whether plaintiffs' causes of action are impermissible collateral attacks upon those consent decrees. "It is settled that a consent decree is not subject to collateral attack." Dennison v. City of Los Angeles, 658 F.2d 694, 695 (9th Cir. 1981).

Plaintiffs argue they are not collaterally attacking the consent decrees. The foundation of their position is that, for various reasons, the challenged activities of defendants are not required by the decrees. Since the practices are not required, plaintiffs argue, their complaints cannot be said to constitute a collateral attack upon the decrees, but only upon the allegedly discriminatory activity. Plaintiffs argue basically that the particular activity complained of could not be required by the consent decrees because (1) it is expressly prohibited by the decrees, (2) it conflicts with the plain meaning of the terms of the decrees, or (3) it violates state and federal law.

In form, plaintiffs' arguments appear to implicate something other than the consent decrees themselves. Examination of the substance of plaintiffs' position reveals, however, that the consent decrees are indeed implicated, and plaintiffs' complaints constitute collateral attacks upon the decrees. At the outset, plaintiffs, by stating that the challenged activity is expressly prohibited by the decrees, are arguing that defendants are not complying with the consent decrees. Accordingly, determination of the validity of plaintiffs' position necessitates a decision regarding what constitutes compliance with the decrees. ¹ Additionally, plaintiffs' position necessitates a decision regarding precisely what activity is mandated by the decrees' requirement that defendants "seek to achieve" certain goals.

The district court entering the consent decrees expressly retained jurisdiction "for such further relief or other orders as may be appropriate." Implementation of and continued compliance with the consent decrees is under the supervision of the district court that entered the decrees. It is not up to this Court, or the district court in the instant case, to decide-in a collateral proceeding-whether the challenged hiring or promotion practices are either allowed or mandated by the consent decrees. Accordingly, the district court in the instant case did not err in refusing to accept plaintiffs' invitation to speculate regarding what constitutes compliance with or is required by the consent decrees. Such a determination would mean that the parties to the consent decrees could "be faced with either inconsistent or contradictory proceedings." O'Burn v. Shapp, 70 F.R.D. 549 (E.D.Pa.1976), affirmed without opinion, 546 F.2d 417 (3d Cir. 1976), cert. denied, 430 U.S. 968, 97 S.Ct. 1650, 52 L.Ed.2d 359 (1977); Jackson v. Alabama Department of Public Safety, 657 F.2d 689 (5th Cir. 1981) (holding that parties to a consent decree that later claim the other parties are not in compliance with the decree have a remedy through the enforcement of the decree in the original action and not in an...