Filed: Mar. 29, 2000
Latest Update: Feb. 21, 2020
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT MAR 29 2000 No. 97-6347 THOMAS K. KAHN CLERK D.C. Docket No. CV 85-T-665-N 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, WILLI
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT MAR 29 2000 No. 97-6347 THOMAS K. KAHN CLERK D.C. Docket No. CV 85-T-665-N 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, WILLIA..
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAR 29 2000
No. 97-6347
THOMAS K. KAHN
CLERK
D.C. Docket No. CV 85-T-665-N
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,
versus
G. M. ROBERTS, in his official capacity as Director for the Alabama Department of
Transportation, et al.,
Defendants.
________________
No. 98-6192
________________
D.C. Docket No. 85-00665-CV-T-N
JOHNNY REYNOLDS, individually and 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,
WILLIAM ADAMS, CHERYL CAINE, et al.,
Intervenors-Plaintiffs-Appellants,
versus
G.M. ROBERTS, in his official capacity as Director for the Alabama Department of
Transportation, et al.,
Defendants-Appellees.
Appeals from the United States District Court
for the Middle District of Alabama
(March 29, 2000)
Before TJOFLAT and DUBINA, Circuit Judges, and STORY*, District Judge.
TJOFLAT, Circuit Judge:
2
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 the Department from availing themselves
of a race-neutral grievance procedure the parties had fashioned and the court had
approved. The court granted counsel’s application for a preliminary injunction, but,
recognizing that the issuance of an order to show cause rather than an injunction is the
appropriate device for enforcing a consent decree, denied
counsel’s application for a permanent injunction. In the same stroke, the court, intent
on granting counsel the relief they sought, transformed their application for a
permanent injunction into an application for a declaratory judgment, declaring that
allowing non-black employees to use the race-neutral grievance procedure violates the
consent decree. Reynolds v. Alabama Dep’t of Transp., 996 F. Supp. 1130 (M.D. Ala.
1998). In No. 97-6347, a class of intervenors, who consist of the Department’s
________________
*Honorable Richard W. Story, U.S. District Judge for the Northern District of Georgia, sitting by
designation.
3
non-black employees (the “Adams Intervenors”), appeals the preliminary injunction.
In No. 98-6192, the same class appeals the declaratory judgment. We vacate both
orders and instruct the district court to restore the status quo ante.
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 Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e-2000e-17, 42 U.S.C. § 1981, and the Equal Protection Clause of the
Fourteenth Amendment, plaintiffs sought monetary and injunctive relief under
1
In addition to the Department, the plaintiffs sued various state officials. The lawsuit was styled
initially as Reynolds v. King. It became Reynolds v. Roberts, then Reynolds v. Alabama
Department of Transportation. The case came to this court styled Reynolds v. Butts; Butts was the
director of the Department when the Adams Intervenors took this appeal. He was replaced as
director by G.M. Roberts. We refer to the defendants in this case collectively as the Department.
4
those statutes and under 42 U.S.C. § 1983. In October 1986, the court certified
three plaintiff classes.2
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 things, it set hiring and promotion
quotas for blacks – 33% of the positions in each job classification in the
Department would be set aside for blacks. To ensure an adequate pool for this set-
2
The first class consisted of any black person who unsuccessfully applied for a merit position
in the Department at any time after May 21, 1979. The second class included all blacks employed
by the Department at any time after May 21, 1979, who were permanent employees under the
Department’s merit system (the “merit” employees) and therefore eligible for, but had been denied,
promotion. The third class consisted of a portion of the blacks employed by the Department at any
time after May 21, 1979, as temporary employees (the “non-merit” employees). During their
employment in the Department, these employees had applied for, but had been denied, merit
positions.
5
aside program, the decree directed the Department to mount an aggressive
recruiting campaign at historically black colleges and universities. Finally, the
decree required the Department to establish a grievance procedure for its
employees.
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
6
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
7
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 employees with the goal of assuring to the extent
practicable that at least 90% of the duties and responsibilities performed by
employees on a regular or non-emergency basis are within the job description for
[the] job they are holding.”
8
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
3
Both Consent Decree I and the Revised Complaint Procedure use the words “grievance” and
“complaint” interchangeably. Throughout this opinion we use the term “grievance.” We use the
term “grievant,” as did the district court, to refer to an employee who has filed a grievance under the
procedure.
4
In its order, the court stated that “[c]ounsel for the plaintiffs have informed us that they agree
to [the proposed grievance procedure].” We therefore assume that the Department “submitted [it]
to plaintiffs’ counsel for review and comment at least 30 days prior to its implementation,” as
required by Article 19.
The court did not indicate, in its order, whether counsel for the Adams Intervenors had
agreed to the procedure. The record does not reveal any contemporaneous objection by the Adams
Intervenors. On appeal, the Adams Intervenors do not challenge the grievance procedure itself, only
the district court’s subsequent action precluding non-black employees from utilizing it.
9
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,
5
The Revised Complaint Procedure is also available to “any . . . employee who has been
terminated . . . or applicant for full-time employment.” The complaint procedure, however, provides
no mechanism for a former employee or applicant to file a grievance. Rather, the mechanism that
is provided applies only to current employees.
10
conducted by the Department’s “Hearing Officer.”6 If the matter is still not
resolved, then, at step four, either party may seek arbitration before “an external
arbitrator . . . selected from a panel of Seven (7) arbitrators, with Three (3) of such
panel members to be designated by class counsel, Three (3) to be designated by the
Department, and One (1) to be designated by agreement among the other Six.” An
employee with a grievance is not required to invoke the Revised Complaint
Procedure; as the procedure states, an employee may file an “administrative charge
or separate legal action” instead.7
C.
As noted, Consent Decree I requires the Department, “to the extent
practicable,” to assure that employees are performing the duties within their job
6
A Hearing Officer is taken in sequence from a list of Hearing Officers agreed to by both the
Department and plaintiffs’ counsel.
7
In regards to the external arbitration at step four, the grievance procedure states:
The findings and orders of the arbitrator shall be final from which no appeal may be
taken in the context of the Reynolds case. Nothing in this procedure, however, shall
be construed to prevent the filing of any administrative charge or separate legal
action. In the event that class counsel deems the outcome of the arbitration to
constitute a violation of Consent Decree I, class counsel may file a motion . . . for
relief [with] the Court.
The record does not indicate how the parties or the court believed the first sentence of the above
provision, which allows “no appeal,” to be consistent with the third sentence, allowing “class
counsel” to “file a motion . . . for relief [with] the Court” whenever “class counsel deems the
outcome of the arbitration to constitute a violation of Consent Decree I.”
11
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
8
As best we can discern from the record, a “provisional appointment” is simply a temporary
promotion to a higher job classification. The provisional appointment apparently expires when the
higher position is permanently filled through the competitive selection procedures mandated by
Consent Decree I.
9
These grievances of black employees came before the court in the following manner. The
original Complaint Procedure negotiated between the parties (but not presented to the district court
for approval) allowed any dissatisfied grievant to file a separate motion for relief with the district
court. The grievances of the black employees described in the text were brought before the district
court pursuant to this procedure; the district court appointed a special master to take evidence and
issue recommendations. At the same time, the court stated that it would not continue to be what it
described as a “super personnel board” and instructed the parties to revise the Complaint Procedure
to “remove the court from the process.” Reynolds, 996 F. Supp. at 1144 n.40. This resulted in the
parties negotiating the Revised Complaint Procedure and submitting it to the district court for
approval. See
id. As this appeal indicates, the district court was unsuccessful in “remov[ing itself]
from the process.”
Id.
10
One of the district court’s injunctive orders awarding a provisional appointment and back pay
to a black grievant indicates that the Department opposed the award because the grievant had not
proven that he had been assigned work out-of-classification because of his race. The district court
12
In late 1996, three white employees of the Department (“the white
grievants”) filed grievances alleging that they too had been assigned duties outside
their classification in violation of Article 15.11 They sought back pay and
provisional appointments. The employees’ supervisor (all three apparently had the
same supervisor) did not provide a satisfactory resolution, and a single hearing for
all three grievants was held before the Department’s EEO Monitor. The EEO
Monitor recommended back pay and provisional appointments for all three, a
resolution which was accepted by the white grievants.
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
dismissed the Department’s position: “[A black grievant] has no obligation to show that the
[D]epartment acted in a discriminatory manner, only that they failed to conform to the decree.”
11
The white grievants did not allege that they had been assigned duties outside their
classification because of their race.
12
As explained supra note 2, the plaintiff classes were made up of (1) unsuccessful applicants
for merit positions with the Department, (2) merit employees who had been denied promotion(s) in
the Department, and (3) non-merit employees who had been denied merit positions. The second and
third classes included both former and current employees of the Department.
It is obvious that the Department’s Revised Complaint Procedure is inapplicable to the first
plaintiff class and to the former employees in the second and third plaintiff classes. See supra n.5
and accompanying text. The procedure applies, instead, to current employees in the second and
13
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 injunction and asked the court to extend the TRO until their
application could be heard. After another telephone conference with the attorneys,
the court extended the TRO and scheduled a hearing for March 24 on the
application for a preliminary injunction.14
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
third classes and, of course, to the Department’s future employees.
Accordingly, when plaintiffs’ counsel applied to the district court for the preliminary and
permanent injunctive relief involved in this appeal (although they did not indicate as much), they
were not representing members of the first plaintiff class or former employees in the second and
third plaintiff classes.
13
There is no indication in the record that the three white grievants were notified of plaintiffs’
counsel’s application for a TRO or that they were represented by counsel in the telephone
conference with the court. Accordingly, the TRO issued without notice to these grievants. See Fed.
R. Civ. P. 65(b). The record indicates that counsel for the Adams Intervenors participated in all
subsequent hearings on plaintiffs’ counsel’s applications for injunctive relief (relating to the Revised
Complaint Procedure) and acted as counsel for the three white grievants – just as they have in these
appeals.
14
The extended TRO would expire on March 24.
14
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
15
As far as we can tell from the record, the district court did not vacate the preliminary
injunction enjoining the Department from implementing the EEO Monitor’s resolutions of the white
employees’ grievances; we assume, therefore, that the preliminary injunction remains in effect
against the Department.
16
In none of plaintiffs’ motions for injunctive relief did they ask for declaratory relief.
15
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, like all injunctions, are to be enforced
through the district court’s civil contempt power – exercised after (1) the plaintiff
moves the court to order the defendant to show cause why he should not be held in
contempt for refusing to obey the decree’s mandate, (2) the court grants the
motion, and (3) the defendant fails to present a lawful excuse for his alleged
disobedience – and plaintiffs’ counsel had not invoked the court’s enforcement
power in this manner. Notwithstanding plaintiffs’ counsel’s failure to move the
court for an order to show cause why the Department should not be adjudged in
contempt for refusing to comply with the Consent Decree I, the court treated
counsel as though they had done so – except that instead of entering a permanent
injunction against the Department, it entered a declaratory judgment, which (we
16
presume) it fully expected the Department to treat as an injunction.17 The court
stated that “the plaintiffs’ motions for permanent injunctions . . . are granted to the
extent that it is declared as follows: Provisionally appointing, promoting, or paying
backpay to [the three white grievants] pursuant to the grievances they filed would
violate the consent decree.”18 Reynolds, 996 F. Supp. at 1156.
The Adams Intervenors appealed this declaratory judgment, No. 98-6192.
We consolidated the appeal with their appeal of the preliminary injunction, No. 97-
6347. We now vacate both judgments.
II.
17
We have no doubt that the Department would treat the declaratory judgment as an injunction,
since the declaratory judgment would appear to foreordain the outcome of a hearing requiring the
Department to show cause why it should not be held in contempt for allowing non-black employees
to invoke the grievance procedure.
18
As we explain in the text infra, the district court had no basis for nullifying the EEO
Monitor’s resolutions of the three white’s grievances; nothing in the record even remotely suggested
that the EEO Monitor’s resolutions somehow discriminated against a member of any of the plaintiff
classes. The court’s only reason for entering the judgment was to alleviate its concern that, at some
unforeseen time in the future, the Department might use the grievance procedure to reinstitute its
racially discriminatory practices. In sum, if the EEO Monitor’s resolutions of the three white’s
grievances did not discriminate against a member of a plaintiff class, but the court nonetheless felt
constrained to nullify the resolutions as violative of Consent Decree I, it follows inexorably that, in
the court’s view, allowing any non-black to invoke the grievance procedure – even if it caused a
plaintiff class member no injury – would violate the decree. We therefore treat the declaratory
judgment as amending the Revised Complaint Procedure so that it applies only to blacks. We
assume that, if a non-black employee has a grievance, he or she should resort not to the Revised
Complaint Procedure, but to whatever alternative procedure the Department may have devised for
the purpose of entertaining the grievance.
17
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
19
The court’s show cause order may instruct the defendant to file a response; depending on
what the defendant says in his response, a hearing may be unnecessary.
18
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 Rule 11
of the Federal Rules of Civil Procedure.20 What the Department had done was to
permit three white employees to invoke the race-neutral grievance procedure
(provided by the Revised Complaint Procedure), and, then, to accept the EEO
Monitor’s resolutions of the grievances. Instead of seeking enforcement of the
20
Rule 11 states, in pertinent part:
By presenting to the court . . . a pleading . . . an attorney . . . is certifying that to the
best of the person’s knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances . . . the claims, defenses, and other legal
contentions therein are warranted by existing law or by a nonfrivolous argument for
the extension, modification, or reversal of existing law . . . [and] the allegations and
other factual contentions have evidentiary support . . . .
19
consent decree, as amended, through the district court’s contempt power, plaintiffs’
counsel took another approach, in two steps.
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 any non-black employee to invoke the grievance procedure. The
district court entered the TRO and preliminary injunction counsel requested.
Eleven months later, the court transformed counsel’s application for a permanent
injunction into a request for declaratory relief and granted a declaratory judgment.
We turn now to the merits of the Adams Intervenors’ appeals, beginning with their
appeal of the preliminary injunction.
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,
79 S. Ct. 948, 954,
3 L. Ed. 2d 988 (1959). In this case, the
20
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 Fourteenth Amendment, a class member could
have filed an independent lawsuit, in state or federal court, and sought legal or
equitable relief, or both. But, because no class member suffered injury, plaintiffs’
counsel were proceeding strictly on their own. That is, although they appeared to
be representing the plaintiff classes, they were actually representing no one but
themselves – bent on preventing the three white grievants from obtaining
provisional appointments and back pay. They proceeded as if the white grievants
had done something unlawful by invoking the race-neutral complaint procedure.
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
21
After plaintiffs’ counsel filed their motion for preliminary injunction to prevent the
Department from implementing the EEO Monitor’s resolutions, the attorneys for the Adams
Intervenors moved the court to allow the three white grievants to intervene as individuals in order
to represent their interests. At the March 24, 1997, hearing on plaintiffs’ counsel’s application for
a preliminary injunction, plaintiffs’ counsel objected to a separate intervention by these white
grievants, stating, “Intervention is not necessary to bind these parties to an injunction. To allow
further white employees to come into the case at will at this late date is not proper.” The court stated
it would “take the motion [to intervene] under submission. Since it appears that the movants . . . are
21
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
application for injunctive relief barring the Department from implementing the
EEO Monitor’s resolutions of the three white employees’ grievances.
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
represented by the same lawyer [as the Adams Intervenors], I don’t see any need to resolve that right
now.”
The district court entered the preliminary injunction on April 9, without ruling on the motion
to intervene. The Adams Intervenors filed their notice of appeal on behalf of the class and on behalf
of the white grievants as “proposed-intervenors.”
Two months later, the Adams Intervenors, in their brief in opposition to plaintiffs’ counsel’s
motion for a permanent injunction, argued in support of their motion to allow the three white
grievants to intervene. Neither plaintiffs’ counsel nor the Department responded to the arguments.
As far as we can tell from the record, the district court has never ruled on the white grievants’
motion to intervene. Under the circumstances, for purposes of this appeal we treat the three white
grievants as part of the class represented by the Adams Intervenors.
22
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 supra n.4. Fourth, although Article 19 did not require court
approval, the draft was submitted to the district court. Fifth, the court approved the
draft, and thus made it an amendment to Consent Decree I.
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
22
Consent decrees are construed according to accepted contract principles. See Reynolds I, 202
F.3d at 1312-13. We note, however, that “[f]or the purposes of modification, consent decrees are
not governed by contract law, but are treated as judicial acts, akin to injunctions.” Jacksonville
Branch, NAACP v. Duval County Sch. Bd.,
978 F.2d 1574, 1578 (11th Cir. 1992).
23
they could satisfy Rule 11’s ethical/professional standard), plaintiffs’ counsel
claimed that the revised procedure “violated” Consent Decree I. The district court
should have given plaintiffs’ claim short shrift and rejected out of hand their
application for a permanent injunction. The court recognized that an application
for injunctive relief is an inappropriate device for enforcing a consent decree, so it
sua sponte transformed the application into an application for a declaratory
judgment. Apparently, the court failed to realize that “that dog won’t hunt,” Elrod
v. Sears, Roebuck, and Co., 939 F.2d 1466, 1471 n.3 (11th Cir. 1991), and that it
was entering a judgment that could not withstand appellate review.
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 written. In this case, the contract – the Revised Complaint Procedure –
24
is unambiguous.23 Moreover, although it was drafted by the Department’s
attorneys, it was approved by the plaintiff classes’ highly sophisticated attorneys.24
Accordingly, the district court had no basis in law for rewriting the contract, which
it had approved, so that the Revised Complaint Procedure would be available only
to blacks.
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
23
Because Consent Decree I and the Revised Complaint Procedure amendment are
unambiguous, the district court erred when, in determining whether the amendment violated the
decree, it considered evidence that the plaintiff classes had introduced at the trial of the case, which
was aborted before plaintiffs rested, and testimony given at the March 24, 1997, hearing on
plaintiffs’ counsel’s application for a preliminary injunction (barring the Department from
implementing the EEO Monitor’s resolutions of the white employees’ grievances). See Reynolds,
996 F. Supp. at 1134-36, 1139-42.
24
We take judicial notice that plaintiffs’ counsel have a wealth of experience in the courts of
this circuit and are surely aware of the legal consequences of entering into contracts and consent
decrees. See, e.g., Riddle v. Cerro Wire & Cable Group, Inc., 902 F.2d 918 (11th Cir. 1990);
Holmes v. Continental Can Co.,
706 F.2d 1144 (11th Cir. 1983).
25
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
25
We issue this directive in the exercise of our supervisory power after considering the history
of this litigation. See 28 U.S.C. § 2106 (1994) (“[A] court of appellate jurisdiction may . . . require
such further proceedings to be had as may be just under the circumstances.”). See generally
Piambino v. Bailey, 757 F.2d 1112, 1145-46 (11th Cir. 1985) (“Despite the wide variety of
situations in which supervisory power has been invoked, the objective behind its use – fashioning
procedures and remedies that ensure that the judicial process remains a fair one – has not varied.”).
See also Smith v. Mulvaney,
827 F.2d 558, 562-63 (9th Cir. 1987); United States v. Baylin,
696 F.2d
1030, 1043 n.30 (3d Cir. 1982).
26
arguments. We have considered whether we have the authority under Rule 38 of
the Federal Rules of Appellate Procedure to award the Adams Intervenors “just
damages and single or double costs,” but we conclude that the rule, as written,
precludes such an award to the appellant.26 We have also considered whether we
have the authority under 28 U.S.C. § 1927 (1994) to award these intervenors
“excess costs, expenses, and attorneys’ fees reasonably incurred” because of
counsel’s conduct. The courts of appeals have section 1927 authority. See, e.g.,
T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 638 (9th
Cir. 1987); Olympia Co., Inc. v. Celotex Corp.,
771 F.2d 888, 893-94 (5th Cir.
1985). Counsel subject to section 1927 sanctions are entitled to be heard regarding
the matter, see Braley v. Campbell,
832 F.2d 1504, 1514-15 (10th Cir. 1987) (en
banc); accordingly, on receipt of the mandate, the chief judge of the Middle
District of Alabama will assign the case to himself or another district judge (other
than Judge Thompson) for the purpose of enabling plaintiffs’ counsel to show
cause why section 1927 sanctions should not be awarded to the Adams Intervenors.
26
Rule 38 states: “If a court of appeals determines that an appeal is frivolous, it may, after a
separately filed motion or notice from the court and reasonable opportunity to respond, award just
damages and single or double costs to the appellee.” See also 28 U.S.C. § 1912 (1994) (allowing
court of appeals to award “just damages . . . and single or double costs” when “a judgment is
affirmed”).
27
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.
28
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’
29
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 evidence arguably justified action being taken
by plaintiffs’ counsel to get the issue before the district court for consideration.
Except for the majority’s findings about plaintiffs’ counsel’s motives, I CONCUR
fully in the analysis of the majority in Parts I, II, and IV.
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.
30
