Johnny REYNOLDS, individually on behalf of himself and as representative of a class of black employees of the Highway Department, State of Alabama, similarly situated, Plaintiff-Appellee, Cecil Parker, Robert Johnson, et al., Intervenors-Plaintiffs-Appellees, C. Campbell Wilson, Intervenor-Plaintiff, William Adams, Cheryl Caine, et al., Intervenors-Plaintiffs-Appellants, v. G.M. ROBERTS, in his official capacity as Director for the Alabama Department of Transportation, et al., Defendants.
Nos. 97-6347, 98-6192
United States Court of Appeals, Eleventh Circuit
March 29, 2000
207 F.3d 1288
Thomas R. Elliott, Jr., London, Yancey, L.L.C., Raymond P. Fitzpatrick, Jr., J. Michael Cooper, Richard Scott Clark, Fitzpatrick, Cooper & Clark, Jon Craig Goldfarb, Robert F. Childs, Jr., Gordon, Silberman, Wiggins & Childs, Lisa W. Borden, Birmingham, AL, Jimmie R. Ippolito, Jr., Montgomery, AL, Evan M. Tager, Michael E. Lackey, Jr., Mayer, Brown & Platt, Eileen Penner, U. S. Dept. of Justice/Civ. Div., Washington, DC, Dennis Hughes, Birmingham, AL, William Patton Gray, Jr., Gray & Associates, Julian L. McPhillips, Jr., McPhillips, Shinbaum & Gill, Montgomery, AL, for Intervenors-Plaintiffs-Appellants.
Robert L. Wiggins, Jr., Abigail P. Van Alstyne, Stanley Wade Logan, Scott A. Gilliland, Kimberly C. Page, Kell A. Simon, Ann K Wiggins, Gordon, Silberman, Wiggins & Childs, P.C., Russell W. Adams, Birmingham, AL, for Intervenors-Plaintiffs-Appellees.
Before TJOFLAT and DUBINA, Circuit Judges, and STORY*, District Judge.
These consolidated appeals arise out of a long-standing racial discrimination class action brought by African-American employees and job applicants against the Alabama Department of Transportation (the “Department“). Three years after the district court entered a race-neutral consent decree providing for prospective relief relating to job qualifications and promotion criteria, plaintiffs’ counsel, using the class action as their vehicle, applied to the district court for preliminary and permanent injunctions prohibiting white employees of
I.
A.
The procedural history of this case is set out in our opinion in Reynolds v. Roberts, 202 F.3d 1303, 1305-11 (11th Cir.2000) (Reynolds I). Here, we recite a shortened version of that history and then focus on the events relevant to this appeal.
The named plaintiffs brought this suit against the Department1 in May 1985 on behalf of all black employees and former employees of the Department and all unsuccessful black applicants for positions within the Department. Alleging race discrimination in violation of
After the parties joined issue, and engaged in discovery, they entered into settlement negotiations. In 1988, and again in 1991, they presented a proposed consent decree to the district court for approval. On each occasion, some members of the plaintiff classes objected to the entry of the decree; the district court sustained their objections and refused to enter the decree.
In June 1992, the case proceeded to trial before the court. Near the end of the plaintiffs’ case, the parties asked the court to recess the proceeding indefinitely so they could engage in further settlement negotiations. The court granted their request. In November 1993, the parties reached a partial settlement, in the form of a proposed consent decree. The proposed decree provided a range of prospective class-wide injunctive relief. Among other
The parties presented the proposed decree to the district court, which, in turn, scheduled a hearing for January 19, 1994, to entertain any objections members of the plaintiff classes, or others likely to be affected (like white employees of the Department), might have to the terms of the proposed decree. On January 13, a group of white Department employees (the “Adams Intervenors“) moved the court for leave to intervene on behalf of the Department‘s non-black employees in order to challenge the race-conscious provisions of the proposed decree—specifically, the 33% quota requirement for all job classifications in the Department. The court granted the motion, Reynolds v. Roberts, 846 F.Supp. 948, 953-54 (M.D.Ala.1994), and subsequently certified an additional class, consisting of the Department‘s non-black employees.
The January 19 hearing was held as scheduled. Over 200 people attended the hearing, including many non-black employees of the Department. The objections to the race-conscious aspects of the proposed consent decree were such that the parties withdrew it and, with leave of court, went back to the drawing board. By late February 1994, the plaintiffs and the Department decided to divide the previously proposed decree into three parts, called Consent Decrees I, II, and III. Consent Decree I contained the provisions that all sides agreed provided only race-neutral prospective relief. Consent Decrees II and III contained provisions that were acceptable to the plaintiffs and the Department, but opposed as race-conscious by the Adams Intervenors.
The parties submitted Consent Decree I to the district court for approval, and, on March 7, the court held a hearing on the fairness of the proposal. No one other than the parties’ attorneys appeared at the hearing, and no one objected to the entry of the decree. The court approved the decree and, by order entered March 16, 1994, adopted it in full.
B.
Consent Decree I is composed of a series of “Articles” which revamped the process by which the Department hires, promotes, classifies, and pays its employees. The decree abolished the system of “employment registers” from which positions were filled and promotions were granted, and created new qualifications and procedures for hiring and promotion. It also created new procedures for, among other things, rotation of job duties, recruitment, and training. None of the Articles of Consent Decree I provide special benefits or procedures for black employees of the Department.
The only Articles relevant to this appeal are Article 15 and one provision of Article 19. Article 15 required the Department to conduct a study of all its employees (regardless of race) to determine if any employees were being assigned duties associated with a higher job classification (and thus higher pay level) than the one they currently had. If the study uncovered an employee “spending a majority of [his or her] working time in the performance of the duties and responsibilities of a higher job classification,” the Department was required to reclassify the employee at the higher level (and therefore increase that employee‘s salary). Article 15 also required the Department “to monitor the duties and responsibilities performed by
To ensure that the Department was fulfilling Article 15‘s obligations (as well as other obligations) under Consent Decree I, Article 19 mandated the creation of a grievance3 procedure that individual employees could use:
Within 180 days of the effective date of this Decree, the Highway Department will develop and implement an enhanced complaint procedure which assures that all discrimination complaints are processed without fear and reprisal within established time limits and that appropriate action is taken following [the resolution of a complaint]. Such procedure will be submitted to plaintiffs’ counsel for review and comment at least 30 days prior to its implementation.
The Department complied with this mandate and submitted a proposed complaint procedure, designated the “Revised Complaint Procedure,” to plaintiffs’ counsel for review. Plaintiffs’ counsel approved the procedure. Although Article 19 did not require it to do so, the Department submitted the procedure to the district court. On August 9, 1995, the court incorporated the procedure in an “Order and Injunction.”4
The grievance procedure is race-neutral. It opens by stating that “[t]he Consent Decree and Departmental policy mandate that all employees enjoy a work-place free from discrimination.” The procedure allows a grievance to be filed for any “alleged wrong based upon the employee‘s race, color, creed, sex, national origin, age, or handicap.” Moreover, it allows grievances for “a violation of the Consent Decree, or arising from matters that are the subject of the Consent Decree.” The procedure is available to the Department‘s employees without regard to race.5
The grievance procedure consists of four steps. In step one, a grievance is submitted to an employee‘s immediate supervisor. The supervisor responds in writing with a proposed resolution, which may or may not be accepted by the grievant. If the grievance cannot be resolved, it is submitted in step two to the Department‘s appointed Equal Employment Opportunity (“EEO“) Monitor, who also proposes a solution. If the grievant finds the solution unacceptable, the process moves to step three. Step three is a formal hearing within the Department, conducted by the Department‘s “Hearing Officer.”6 If the matter is still
C.
As noted, Consent Decree I requires the Department, “to the extent practicable,” to assure that employees are performing the duties within their job classification and are not being assigned extra duties without compensation. By 1996, a number of black employees of the Department had filed grievances alleging that the Department had assigned them out-of-classification duties. They sought back pay and/or a “provisional appointment”8 to the position whose duties they were actually performing. At least two of these grievances eventually made their way to the district court for a ruling,9 and, in both, the court ordered back pay and issued an injunction mandating a provisional appointment for the employee. In neither of these grievances did the district court make a finding that the grievant had been the victim of discrimination—the court only found that they had been performing duties outside their job classification, in violation of Article 15.10
In late 1996, three white employees of the Department (“the white grievants“) filed grievances alleging that they too had been assigned duties outside their classifi
D.
On February 26, 1997, counsel for the three plaintiff classes (“plaintiffs’ counsel“) moved the district court for a temporary restraining order (“TRO“) to prevent the Department from implementing the three grievance resolutions.12 They alleged that, if the EEO Monitor‘s resolution of the grievances were implemented, the Department would be violating Consent Decree I. The next day, the court conferred with plaintiffs’ counsel and the Department‘s attorneys by telephone;13 later that day, it issued a TRO which enjoined the Department from implementing the three grievance resolutions. On March 10, plaintiffs’ counsel applied for a preliminary injunc
The hearing was held as scheduled. On April 9, 1997, the court “preliminarily ENJOINED and RESTRAINED” the Department and its agents “from provisionally appointing, promoting or paying backpay to [the three white grievants].” The Adams Intervenors timely appealed from this preliminary injunction, No. 97-6347.
On March 28, before the court had ruled on the application for a preliminary injunction, plaintiffs’ counsel applied for a second preliminary injunction; this time, they asked the court to prevent the Department from processing any grievances by non-black employees. Counsel alleged that allowing any non-blacks to utilize the grievance procedure would violate Consent Decree I. The court treated counsel‘s application as one for a permanent injunction and held hearings in late April 1997. Eleven months later, on March 3, 1998, while the Adams Intervenors’ appeal of the April 9 preliminary injunction was pending in this court, the district court, in a memorandum order, ruled on counsel‘s application. See Reynolds, 996 F.Supp. 1130.15
In its March 3, 1998, order, the court did not grant plaintiffs’ counsel a permanent injunction; instead, acting sua sponte, it gave them declaratory relief.16 It stated that allowing non-class members to file grievances would be “a tool to allow supervisors again to engage in the secretive and non-competitive selection and promotion of employees.” Id. at 1132. The court worried that an employee and supervisor would collude to circumvent the competitive system for employment contemplated by the consent decree: the employee, under the direction of his supervisor, would file a fake “grievance,” which would result in the supervisor awarding a provisional appointment and back pay. Id. at 1139. Despite this concern, the court concluded that issuing an order enjoining the Department from hearing grievances of non-blacks would be inappropriate. It reached this conclusion because, in Newman v. Alabama, 683 F.2d 1312, 1318 (11th Cir. 1982), we instructed that consent decrees,
The Adams Intervenors appealed this declaratory judgment, No. 98-6192. We
II.
Before we consider the merits of the Adams Intervenors’ appeals, we think it appropriate to reiterate what we have said in the past as to how injunctions, including consent decrees, are to be enforced. They are enforced through the trial court‘s civil contempt power. See In re Grand Jury Proceedings, 142 F.3d 1416, 1424 (11th Cir.1998) (injunction); Newman, 683 F.2d at 1317-19 (consent decree). If the plaintiff (the party obtaining the writ) believes that the defendant (the enjoined party) is failing to comply with the decree‘s mandate, the plaintiff moves the court to issue an order to show cause why the defendant should not be adjudged in civil contempt and sanctioned. See Newman, 683 F.2d at 1318; see also Thomason v. Russell Corp., 132 F.3d 632, 634 n. 4 (11th Cir.1998); Wyatt v. Rogers, 92 F.3d 1074, 1078 n. 8 (11th Cir.1996). The plaintiff‘s motion cites the injunctive provision at issue and alleges that the defendant has refused to obey its mandate. See Wyatt, 92 F.3d at 1078 n. 8. If satisfied that the plaintiff‘s motion states a case of non-compliance, the court orders the defendant to show cause why he should not be held in contempt and schedules a hearing for that purpose.19 At the hearing, if the plaintiff proves what he has alleged in his motion for an order to show cause, the court hears from the defendant. At the end of the day, the court determines whether the defendant has complied with the injunctive provision at issue and, if not, the sanction(s) necessary to ensure compliance. See Newman, 683 F.2d at 1318.
As the district court appropriately recognized in its March 3, 1998, order granting a declaratory judgment, plaintiffs’ counsel did not invoke this time-honored procedure to obtain enforcement of any of the provisions of Consent Decree I or the Order and Injunction, which amended Consent Decree I by approving the Revised Complaint Procedure. The reason why plaintiffs’ counsel did not move the court for an order to show cause is obvious: the Department had not disobeyed any of the mandates of the consent decree, as amended, and plaintiffs’ counsel could not contend that it had without running afoul of
First, they moved the court to prevent the Department from implementing the EEO Monitor‘s resolutions by entering a TRO and then a preliminary injunction. Second, they moved the court permanently to enjoin the Department from allowing
A.
We do not tarry long in concluding that the district court erred in entering the preliminary injunction barring the Department from implementing the EEO Monitor‘s resolutions of the white employees’ grievances. A court enters a preliminary injunction to prevent the plaintiff from being injured, and where there is no adequate remedy at law. See Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07 (1959). In this case, the Monitor‘s resolutions injured no member of a plaintiff class on account of race or in any other way. Had injury occurred in violation of any of the civil rights laws or the Equal Protection Clause of the
Because they had suffered no injury that would warrant relief, legal or equitable, plaintiffs’ counsel lacked standing to prosecute their application for a preliminary injunction. Moreover, by using the Reynolds case as a vehicle to prosecute their application, they abused the judicial process. And the abuse was as gross as any we have encountered. As we detail in the margin,21 counsel not only failed to join the three white grievants as defendants, they vigorously opposed their efforts to intervene.
There is no need to say more. The district court‘s preliminary injunction is vacated, and we instruct the court to strike from the record plaintiffs’ counsel‘s appli
B.
We address the merits of the Adams Intervenors’ appeal of the declaratory judgment by making a few observations that can hardly be disputed. First, Consent Decree I provides race-neutral prospective relief, and that is all. Second, Article 19 required the Department to draft a procedure for ensuring that employees could complain about such things as improper job classification and pay “without fear and reprisal” and to submit the procedure to “plaintiffs’ counsel for review and comment.” The Department drafted a procedure, the “Revised Complaint Procedure,” and submitted it to plaintiffs’ counsel as Article 19 required. The draft was, as indicated supra, entirely neutral with respect to “race, color, creed, sex, national origin, age, or handicap,” meaning that the procedure would be made available to everyone, including a non-black. Third, plaintiffs’ counsel approved the draft. See
To say that the Revised Complaint Procedure somehow “violates” Consent Decree I, as plaintiffs’ counsel contended in their application for a permanent injunction (barring non-blacks from invoking it) is more than sophistic; it is preposterous. So, why did plaintiffs’ counsel file their application for a permanent injunction which would limit the protection afforded by the complaint procedure to blacks only? Because they thought they had made a bad bargain, and they wanted to undo it. But, instead of asking the court to void the contract, however, for mutual mistake of fact or some other legally-recognized ground for vitiating contracts22 (which would have been the professional thing to do, assuming that they could satisfy
It is evident, from what transpired in the district court in this case, that counsel and the court need to be reminded of two things. First, “[l]ong standing precedent evinces a strong public policy against judicial rewriting of consent decrees. ‘[A] district court may not impose obligations on a party that are not unambiguously mandated by the decree itself.’ King v. Allied Vision, Ltd., 65 F.3d 1051, 1058 (2d Cir.1995).” Reynolds I, 202 F.3d at 1312. Consent decrees are contracts, and we construe them using the normal tools for interpreting contracts. See id. at 1312-13. Where they are unambiguous, the court must uphold a decree as
Second, if in the future a black employee—or any employee, for that matter—suffers racial discrimination in the work place, the employee‘s remedy (if the grievance cannot be resolved) will be to seek relief in a separate lawsuit, brought in state or federal court. If brought in the United States District Court for the Middle District of Alabama, the suit will be assigned to a district judge under the court‘s random assignment system. In other words, the suit will not be made a part of the Reynolds litigation.25
In sum, in No. 98-6192, the district court‘s declaratory judgment is vacated, and we instruct the district court to strike from the record plaintiffs’ counsel‘s application for permanent injunctive relief barring the Department from making the Revised Complaint Procedure available to non-blacks.
III.
In No. 97-6347, plaintiffs’ counsel invited the error the district court committed when it entered the preliminary injunction barring the Department from affording the three white grievants the provisional appointments and back pay the EEO Monitor awarded to them. In addition to inviting the error, plaintiffs’ counsel have attempted to defend the district court‘s ruling on appeal with baseless arguments. We have considered whether we have the authority under
In No. 98-6192, we conclude that the issue is a closer one. We assume that plaintiffs’ counsel are not responsible for the district court‘s sua sponte decision to transform their application for a permanent injunction into an application for a declaratory judgment. As the district court itself acknowledged, it should have dismissed counsel‘s application for a permanent injunction under the authority of Newman v. Alabama, 683 F.2d at 1318.
IV.
In conclusion, in No. 97-6347, we vacate the district court‘s preliminary injunction and instruct the court to strike plaintiffs’ counsel‘s application for injunctive relief. In No. 98-6192, we vacate the court‘s declaratory judgment and instruct the court to strike from the record counsel‘s application for a permanent injunction. The court is instructed to restore the case to the status quo ante, which means nothing has happened in this case since August 9, 1995, when the district court entered its Order and Injunction, amending Consent Decree I to incorporate the Revised Complaint Procedure.
SO ORDERED.
STORY, District Judge, concurring in part and dissenting in part:
I agree with the majority‘s decision vacating the district court‘s preliminary injunction in No. 97-6347 and instructing the district court to strike Plaintiffs’ application for injunctive relief and vacating the district court‘s declaratory judgment in No. 98-6192 and instructing the district court to strike from the record Plaintiffs’ application for permanent injunctive relief. However, as to Part III of the majority opinion, I dissent.
The majority charges plaintiffs’ counsel with “proceeding strictly on their own” and “representing no one but themselves” in their pursuit of an injunction to prohibit the use of the Revised Complaint Procedure by non-blacks. I do not ascribe such sinister motives to plaintiffs’ counsel. We must not lose sight of the history of this case. Hopefully, we are in the final chapter of a series of suits brought to end pervasive discrimination within the Alabama Department of Transportation (“ALDOT“). It is against this background that counsel‘s motives should be judged. For example, evidence presented at the 1992 trial concerning the alleged pre-decree practice which allowed supervisors and employees to circumvent the merit selection process through provisional promotions reasonably raised counsels’ concerns that the new procedure might be abused. Plaintiffs’ counsel thus had a legitimate concern that the Revised Complaint Procedure might violate Consent Decree I. Based upon the orders it entered, the district court apparently shared these concerns.
Because there is no evidence to support a finding that the Revised Complaint Procedure was being used by ALDOT officials to violate Consent Decree I or in an otherwise discriminatory manner, the relief granted by the district court cannot be justified. However, this historical evi
As to Part III, I would not impose § 1927 sanctions. Though plaintiffs’ counsel sought the wrong form of relief, they were attempting to be vigilant in protecting their clients’ rights rather than being unreasonable and vexatious. Therefore, as to Part III of the majority opinion, I DISSENT.
TJOFLAT
CIRCUIT JUDGE