USA. v. State

• Decision Date: 13 October 1999
• Docket Number: No. 98-6447,98-6447
• Citation: 194 F.3d 426
• Parties: (3rd Cir. 1999) UNITED STATES OF AMERICA, v. STATE OF NEW JERSEY; NEW JERSEY STATE DEPARTMENT OF PERSONNEL; EUGENE MCCAFFREY; RONALD BURKHARDT DONNA ROMAN; MARY VASQUEZ; CECILIA A. SHINN; CARRIE E. REED, v. NEW JERSEY DEPT. OF PERSONNEL; CITY OF NEWARK ARMADINA TAHANEY, v. NEW JERSEY DEPARTMENT OF PERSONNEL; MERIT SYSTEM BOARD State of New Jersey; New Jersey State Department of Personnel; and <A HREF="#fr1-*" name="fn1-*">* Anthony J. Cimino, Commissioner of Personnel, New Jersey State Department of Personnel, Appellants
• Court: U.S. Court of Appeals — Third Circuit

Page 426

194 F.3d 426 (3rd Cir. 1999)

UNITED STATES OF AMERICA, v. STATE OF NEW JERSEY; NEW JERSEY STATE DEPARTMENT OF PERSONNEL; EUGENE MCCAFFREY; RONALD BURKHARDT

DONNA ROMAN; MARY VASQUEZ; CECILIA A. SHINN; CARRIE E. REED, v. NEW JERSEY DEPT. OF PERSONNEL; CITY OF NEWARK

ARMADINA TAHANEY, v. NEW JERSEY DEPARTMENT OF PERSONNEL; MERIT SYSTEM BOARD

State of New Jersey; New Jersey State Department of Personnel; and ^*Anthony J. Cimino, Commissioner of Personnel, New Jersey State Department of Personnel, Appellants

No. 98-6447

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued September 13, 1999

Decided October 13, 1999

On Appeal from the United States District Court for the District of New Jersey (D.C. Civ. Nos. 88-05087, 87-02331, and 88-4080) District Judge: Honorable William G. Bassler, (Newark, New Jersey District Civil No. 88-5087), (Newark, New Jersey District Civil No. 87-2331), (Newark, New Jersey District Civil No. 88-4080) [Copyrighted Material Omitted] John J. Farmer, Jr. Attorney General of New Jersey Joseph L. Yannotti Assistant Attorney General Don E. Catinello (argued) Deputy Attorney General Todd A. Widger Deputy Attorney General P.O. Box 112 Trenton, NJ 08625, for Appellants State of New Jersey, New Jersey State Department of Personnel and Anthony J. Cimino, Commissioner of Personnel, New Jersey State Department of Personnel:

Bill Lann Lee Acting Assistant Attorney General Dennis J. Dimsey Timothy J. Moran (argued) Attorneys, Department of Justice P.O. Box 66078 Washington, DC 20035-6078, for Appellee United States of America:

Peter W. Till Wilf & Silverman 820 Morris Turnpike Suite 201 Short Hills, NJ 07078, for Appellee Ronald Burkhardt:

BEFORE: GREENBERG, SCIRICA, and RENDELL, Circuit Judges

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. FACTUAL and PROCEDURAL HISTORY

A. Factual History

This matter comes on before this court on an appeal from an order entered on September 30, 1998, enforcing a settlement decree. The background of the case is as follows. In 1988, the United States sued the State of New Jersey, the New Jersey Department of Personnel and the New Jersey Commissioner of Personnel under Title VII of the Civil Rights Act of 1964, 42 U.S.C. S 2000e et seq., alleging that the State had violated the federal civil rights of women and minorities seeking state entry-level law enforcement positions by using written and physical performance examinations that had a discriminatory impact on these groups and did not significantly serve legitimate business goals. In an amendment to its complaint, the United States extended the charges of discrimination to include the hiring of county and municipal entry-level law enforcement officers as well as state correction officer recruits. The district court eventually consolidated the United States' suit with discrimination cases brought by individual plaintiffs Armadina Tahaney, Donna Roman, Mary Vasquez, Cecilia Shinn and Carrie Reed against the State and the City of Newark.

In March 1995, the United States and the State entered into a consent decree, which the district court approved, to settle the litigation. The State did not admit any wrongdoing in the decree and instead expressly denied that it had engaged in the discriminatory hiring practices the United States asserted. The State did agree, however, to use non-discriminatory criteria in selecting law enforcement officers and to discontinue the use of certain employment tests.

As significant here, the consent decree established procedures for ascertaining the alleged victims of discrimination entitled to relief. Eligible individuals received back pay from a $6,500,000 fund, and a retroactive pension benefit, subject to a $625,000 cap on the total amount the State would pay. Additionally, the State was to place eligible individuals on certification lists for appointment to designated law enforcement positions as those positions became available. Eligible women and minorities appointed to state positions received a "remedial seniority date" based on the date they would have been hired but for the State's alleged discrimination. ¹ Most importantly for the purposes of this appeal, the decree provided that those individuals who were hired were entitled to "all the emoluments of the job title to which they are appointed, including full retroactive seniority and the extent of pension credit provided under P 29[of the decree]." (Emphasis added.) The court retained jurisdiction to implement the decree.

B. Procedural History

The United States moved to enforce the decree in the district court in February 1998, claiming that the State was violating its terms by failing to provide retroactive salary "step-increases" to the alleged victims of discrimination it had hired. In New Jersey, state agencies determine a state law enforcement officer's salary on a nine-step compensation schedule. Normally, officers are promoted to the next step for every year of satisfactory service, and, as a result, an officer's salary increases with seniority until the highest step is reached. The United States claimed that the salary of individuals hired under the decree should reflect the number of step increases that they would have received based on their determined date of hire, the "remedial seniority date."

The State disagreed. It argued that it was inappropriate to award salary increases for years of satisfactory service when the beneficiaries of the increases had not performed satisfactory service or, indeed, any service at all during the years. The State further argued that the term "seniority" in the consent decree referred only to seniority for purposes of promotions, benefits and layoffs but not for purposes of salary. In support of its position, the State submitted an affidavit from Douglass L. Derry, a senior deputy attorney general who had negotiated the decree on the State's behalf. The affidavit stated in relevant part: "It was the State's understanding that retroactive seniority would be given to priority hires in terms of their rights under New Jersey civil service law, that is for use in promotions, benefits and layoffs. I did not agree on behalf of the State to provide salary increases as part of retroactive seniority." The United States did not submit an affidavit contradicting Derry's statements.

In an opinion dated September 29, 1998, the district court granted the United States' motion to enforce the consent decree and ordered the State to award retroactive step increases to individuals hired under the decree. Treating the decree as a contract, the court indicated that its terms were not ambiguous, and thus its plain language controlled. The court stated that the only limitation on the terms "full seniority" and "emolument" in the decree was the phrase "and the extent of retroactive pension credit provided under P 29 [of the decree]." Applying the interpretative maxim of expressio unis est exclusio alterius (the expression of one thing is the exclusion of the other), the court concluded that the only limitation in the decree on seniority benefits was the capping of pension payments. Thus, the court reasoned that the decree's terms covered salary raises associated with seniority. Inasmuch as step increases in New Jersey are essentially automatic, the court found little reason to conclude that the decree's beneficiaries should not receive such increases retroactively, particularly as those awarded permanent law enforcement positions under the decree were required to complete a "working test period" that allowed the State to evaluate their job performance. The court therefore held that the decree's plain language, when considered in light of New Jersey practices, provided for retroactive salary increases.

The district court made two additional points in its opinion that supported its result. First, it noted that in case law the term "retroactive seniority" traditionally connotes seniority for purposes of determining salary, and thus the parties must have intended to include salary increases when they used that term in the decree. Second, it stated that, all other interpretative factors aside, it had explained in its opinion approving the decree that merit increases were included in the remedial seniority to which the hired individuals were entitled. Thus, the court ruled that the State had to live up to the promises made in the decree and ordered it to award the salary increases to the eligible individuals. Accordingly, it entered the order of September 30, 1998, from which the State has appealed.

II. JURISDICTION and STANDARD OF REVIEW

We are exercising plenary review of this appeal. See Harris v. City of Philadelphia, 137 F.3d 209, 212 (3d Cir. 1998). The district court had original jurisdiction under 42 U.S.C. S 2000e-6(b), 28 U.S.C. S 1343(a), and 28 U.S.C. S 1345, and we have jurisdiction under either 28 U.S.C. S 1291 or 28 U.S.C. S 1292(a)(1) to review the district court's interlocutory order granting the United States' motion to enforce a previously entered consent decree. See Bogard v. Wright, 159 F.3d 1060, 1062 (7th Cir. 1998).

III. DISCUSSION

Initially we set forth a court's function in interpretating a consent decree. As we indicated in Harris,"[w]e discern the scope of a consent decree by examining the language within its four corners." Harris, 137 F.3d at 212 (citing United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757 (1971)); see also Farley v. Philadelphia Hous. Auth., 102 F.3d 697, 700-01 (3d Cir. 1996) (emphasizing importance of focusing on decree's language rather than on court's notion of its purpose). "In so doing, we must not strain the decree's precise terms or impose other terms in an attempt to reconcile the decree with our own conception of its purpose." Harris, 137 F.3d at 212. Further, as consent decrees have many of the attributes of contracts, we interpret them with reference to traditional principles of contract...