Walter Powers v. City of New Orleans
2015 U.S. App. LEXIS 6158
5th Cir.2015Background
- DOJ investigation and Consent Decree (approved in United States v. City of New Orleans) found NOPD paid-detail practices fostered corruption and poor policing and required creation of a civilian-run coordinating office for secondary employment (OPSE).
- New Orleans passed Ordinance 25428 (set mandatory hourly rates for paid details and allowed an OPSE administrative fee) and Ordinance 25429 (created Police Secondary Employment Fund to receive revenues).
- Plaintiffs (Morton and Powers) and cross-claimant Civil Service Commission (CSC) sued, alleging: city usurped CSC authority to set pay, impaired contracts (U.S. and La. Contract Clauses), and violated Louisiana anti-expropriation rule.
- District court denied preliminary injunction, found no existing enforceable private contracts for paid details at ordinance enactment, concluded ordinances were valid police-power measures, and held CSC lacked jurisdiction over off-duty paid details.
- Parties appealed; Fifth Circuit affirmed in all respects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Removal/jurisdiction | CSC did not consent to federal removal | City (and CSC written consent) supported removal under §1446 | All defendants effectively consented; federal court had jurisdiction; supplemental jurisdiction proper |
| Contract Clause (U.S. & La.) | Ordinance 25428 impairs existing paid-detail contracts (morton/powers) | Ordinance remedies policing corruption; any impairment is justified under police power | No enforceable, mutual contracts existed for broad future details; even if impaired, ordinance serves legitimate public purpose and is reasonable — claim fails |
| Anti-expropriation (La. Const.) | Ordinance takes a private business by halting competition with City-run OPSE | Officers were prohibited from forming detail businesses; paid details are not a "business enterprise" | Officers cannot form such a business under NOPD rules; claim fails |
| Civil Service Commission jurisdiction | CSC: exclusive authority to set wages for city employees extends to paid details | City: paid details are off-duty, private employment; OPSE administration doesn't convert details into city employment | CSC lacks jurisdiction over off-duty paid details; Orleans caselaw supports City control over detail pay; CSC cross-claim dismissed |
Key Cases Cited
- United States v. City of New Orleans, 731 F.3d 434 (5th Cir. 2013) (approved Consent Decree addressing NOPD paid-detail reforms)
- Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400 (U.S. 1983) (three-part Contract Clause test for state impairment of contracts)
- Lipscomb v. Columbus Mun. Separate Sch. Dist., 269 F.3d 494 (5th Cir. 2001) (application of Contract Clause analysis to municipal ordinances)
- Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254 (5th Cir. 1988) (unanimity/consent rule for removal defendants)
- Enochs v. Lampasas Cnty., 641 F.3d 155 (5th Cir. 2011) (standards for reviewing exercise of supplemental jurisdiction)
- Sterling v. Board of Commissioners, Port of New Orleans, 527 So. 2d 1122 (La. Ct. App. 1988) (paid-detail/off-duty assignments are private employment outside civil service jurisdiction)