U.S. v. City of Miami

• Decision Date: 17 November 1999
• Docket Number: No. 98-4626,98-4626
• Citation: 195 F.3d 1292
• Parties: (11th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellant, v. CITY OF MIAMI, Defendant-Appellant, FRATERNAL ORDER OF POLICE, LODGE NO. 20, Defendant-Appellee, BOARD OF TRUSTEES OF THE CITY OF MIAMI FIREFIGHTERS' AND POLICE OFFICERS' RETIREMENT TRUST, Intervenors-Appellants
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1292

195 F.3d 1292 (11th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. CITY OF MIAMI, Defendant-Appellant, FRATERNAL ORDER OF POLICE, LODGE NO. 20, Defendant-Appellee, BOARD OF TRUSTEES OF THE CITY OF MIAMI FIREFIGHTERS' AND POLICE OFFICERS' RETIREMENT TRUST, Intervenors-Appellants.

No. 98-4626

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Nov. 17, 1999

[Copyrighted Material Omitted]

Appeals from the United States District Court for the Southern District of Florida D. C. Docket No. 75-3096-CV-JWK

Before ANDERSON, Chief Judge, MARCUS, Circuit Judge, and MILLS^*, Senior District Judge.

MARCUS, Circuit Judge:

This appeal is the latest chapter in a lengthy litigation saga over a 1977 nondiscrimination consent decree between the United States of America, the City of Miami, and the Fraternal Order of Police, Lodge No. 20. In this iteration, the Fraternal Order of Police ("Appellee"), on behalf of a class of white and Hispanic police officers, brought two civil contempt actions against the City of Miami for "reverse" race discrimination in its 1992 police officer promotion practices. The district court found that the City had discriminated on the basis of race in its "special certification" of several minority promotion candidates, resulting in the unlawful promotion of one black lieutenant and one black sergeant. As a result, the district court held the City in civil contempt of the 1977 consent decree. The district court then awarded broad "make-whole" relief to all "adversely affected" police officers, as if each of these officers actually would have received one of the two promotions in 1992.

On appeal, the United States of America and the City of Miami ("Appellants") do not challenge the district court's finding of race discrimination or civil contempt. The sole issue before us is whether the district court abused its discretion in fashioning broad "make-whole" relief for the entire officer class. After a thorough review of the record and the parties' briefs, we conclude that the district court's chosen remedy was excessive and that it should have divided the monetary value of the two promotions on a pro rata basis amongst the class of eligible candidates. We therefore vacate, in part, the judgment filed on March 13, 1998, and remand with instructions for its modification consistent with this opinion.

I.

The facts of this prolonged case began in 1975 when the United States of America sued the City of Miami, various City officials, and several police officer unions for discriminatory employment practices adversely affecting black, Hispanic, and female individuals in police hiring and promotion policies in violation of Title VII of the Civil Rights Act of 1964, the Fourteenth Amendment, and 42 U.S.C. 1981 and 1983. The United States and the City agreed to settle the case, and the district court approved a consent decree in 1977 over the objections of a police union, the Fraternal Order of Police ("FOP"). The consent decree required the City to establish promotional "goals" for protected minority groups.¹

At the time, police promotion decisions were governed by a civil service rule, Ordinance No. 6945, known as the "Rule of One." The rule required the City to hire and promote certified applicants rigorously based on their designated rank order on the eligible candidate register. This rank order was determined solely by the results of the civil service promotional exam. On April 17, 1978, the Justice Department wrote a letter to the Miami City Manager outlining how the City's "Rule of One" adversely affected minority employees in violation of the consent decree. In July 1979, the City amended its civil service rules, adopting Ordinance No. 8977 which, among other things, substituted a "Rule of Eight" for the previous "Rule of One."

Under the new rule, eight candidates must be certified for each vacant position by the City Director of Personal Management. The first five candidates must be chosen in rank order from the results of the promotional exam. However, the Director also has the discretion, as affirmative action needs dictate, to certify three minority officers by exam rank order. For each additional vacancy, two candidates are to be added to the certified candidate pool: the officer with the next highest overall test score and the minority officer with the next highest test score. In addition, the City also passed a "special certification" rule, Rule 8.7, that allows the Director to certify up to three additional candidates if special requirements of sex or domicile are involved, or additional "special qualifications" are required. All certified candidates must score high enough on the promotional exam to satisfy the City's eligibility requirement. Once a list of eligible candidates has been certified, the Miami Police Chief conducts interviews with each certified candidate. The Chief then chooses his promotions based on the interview and other subjective factors. A candidate's written exam score plays no role in this final decision-making process.

In 1981, we finally heard the FOP's appeal of the consent decree. We approved the decree's provisions pertaining to the City and the United States, but adjudged those provisions pertaining to the FOP invalid because the FOP had not consented to the decree. See United States v. City of Miami, 614 F.2d 1322 (5th Cir. 1980), vacated in part, 664 F.2d 435, 438-39 (5th Cir. 1981) (en banc). On remand, the district court entered a consent order on April 4, 1983, to which the FOP voluntarily consented, that maintained in full force and effect the provisions of the earlier consent decree including the "Rule of Eight." The City still employs the "Rule of Eight" for all police hires and promotions.²

On March 24, 1992, a promotional register for the rank of police lieutenant was posted by Director Angela Bellamy based on the results of the written exam. On April 8, Miami Police Chief Calvin Ross requested a certification list to fill sixteen police lieutenant vacancies. That same day, the Chief also requested in a memo that additional black candidates be "specially certified" for the position in accordance with Rule 8.7 to provide "positive role models and ethnic recognition." At the time, two of twenty-nine lieutenants (roughly seven percent) in the Miami police department were black. On May 18, Director Bellamy ordered that a portion of the promotional exam be re-administered due to errors in the original exam. A new exam was given on May 28 and June 1. On June 19, a new eligible register was established. On July 21, 1992, Police Chief Ross again requested Director Bellamy to issue a certification list to fill the sixteen vacancies. In a same-day memo, Ross also re-requested that additional black candidates be "specially certified" in accordance with Rule 8.7. The memo explained that black supervisors were needed to "understand and speak " non-traditional English. It also noted that black supervisors were needed because many drug enforcement operations occurred in black neighborhoods, requiring supervisors who could "blend" into the environs and make "command-level decisions."

On July 23, three black male candidates were certified under the "special qualifications" requirement-- Roberson Brown, Jr., Bobbie J. Meeks, and Gerald L. Darling. Each of these candidates, based on their exam scores, would have been eligible under the Rule of Eight for certification even if no "special certification" had taken place. All three received a promotion to lieutenant. However, as a result of the "special certification," three additional minority candidates were made eligible for a lieutenant promotion: Alphonso Erving, Javier Mayor, and Melvin Uptgrow. One of these candidates, Erving, actually received a promotion. Erving would not have been eligible for promotion if the "special certification" had not occurred-- i.e., his test score was too low to be included in the normal certification pool of 38 candidates but was high enough to be included once the pool was expanded to 41 candidates based on the "special certification." In the end, four white males, six Hispanic males, four black males (including Erving), one Hispanic female, and one white female were promoted to lieutenant.

On November 25, 1992, Chief Ross requested Director Bellamy to add several Creole speakers through "special certification" to the eligible candidate register for five available police sergeant positions. Two Creole-speaking candidates were then added to an original candidate list of 16 persons: Gary Eugene, a black male ranked 107th on the eligible register and Mario Roman, a Hispanic male ranked 77th on the eligible register. Eugene's employment application recorded his Creole skills as advanced while Roman's application recorded his Creole skills as beginner. The police chief selected Eugene over Roman for one of the sergeant positions.

In 1993, the FOP filed two civil contempt motions against the City for consent decree violations stemming from these police lieutenant and sergeant promotions. The FOP argued that the City had employed its "special certification" procedure to unlawfully select officer candidates solely on the basis of race. The first motion alleged that the City's "special certification" of several black officers, in response to the Police Chief's request for black lieutenants to supervise undercover operations in predominantly black neighborhoods, was a pretext for promoting lieutenants on the basis of race. The second motion claimed that the City's "special certification" of two minority sergeant candidates, in response to the Police Chief's request for Creole-speaking sergeants, was a pretext for promoting sergeants on the basis of race or ethnicity. Both parties agreed to have the motions resolved on the case record and submitted a joint statement of undisputed facts on March 14, 1997. The United States requested an evidentiary hearing...