United States v. City of Hialeah ( 1998 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 94-5083
D.C. Docket No. 94-1140-CV-SH
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
Cross-Appellee,
versus
CITY OF HIALEAH, RAUL L. MARTINEZ, Mayor
(in his official capacity), HIALEAH
PERSONNEL BOARD, et al.,
Defendants-Appellees,
RAFAEL SUAU,
Defendant-Appellee,
Cross-Appellant.
__________________________
Appeals from the United States District Court
for the Southern District of Florida
__________________________
(May 7, 1998)
Before CARNES, Circuit Judge, KRAVITCH and REAVLEY*, Senior Circuit
Judges:
CARNES, Circuit Judge:
The United States appeals the district court’s refusal to
approve part of a consent decree it negotiated with the City of
*
Honorable Thomas M. Reavley, Senior U.S. Circuit Judge for
the Fifth Circuit, sitting by designation.
Hialeah, Florida. The underlying lawsuit claims that the City
discriminated against blacks in hiring firefighters and police
officers in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq. Other parts of the consent decree have
been approved and entered, and they are not in question. One such
part requires the City to hire as police officers and firefighters
thirty blacks from a pool of prior applicants who were qualified
but had been denied employment. The part of the decree the
district court refused to enter would have granted retroactive
competitive seniority to those thirty new black employees.
The district court, while finding that the United States had
established a prima facie case of discrimination, refused to
approve the retroactive seniority remedy part of the proposed
decree because of objections from the police and fire unions, and
from a group of individual police officers including Rafael Suau
(the “Suau objectors”). The court found that the retroactive
seniority provision in the decree would violate contractual
seniority rights of the incumbent employees, rights guaranteed to
them in the unions’ collective bargaining agreements with the City.
It therefore refused to enter that part of the proposed consent
decree over the objections of those whose legally enforceable
seniority rights would be adversely affected.
The United States contends that the district court erred in
refusing to enter the part of the decree granting the new black
employees retroactive seniority rights. The Suau objectors’ cross-
appeal, contends that the district court erred in finding that the
2
United States had made out a prima facie case of discrimination.
We agree with the district court that the retroactive seniority
part of the proposed consent decree would have diminished the
seniority rights of incumbent employees, which are legally
enforceable rights guaranteed to them by their collective
bargaining agreements. Accordingly, we hold that the district
court properly refused to approve that part of the proposed decree
absent either the consent of the unions and the individual
objectors, or a finding that the provision was necessary and
appropriate to remedy discrimination proven during a trial at which
all affected parties had an opportunity to participate. In light
of that holding, we also conclude that the cross-appeal is moot.
I. FACTUAL AND PROCEDURAL HISTORY
In February 1992, the Department of Justice began an
investigation into the hiring practices of the police and fire
departments of the City of Hialeah, Florida. As of August 1992,
the Hialeah workforce was approximately 17% black, but only 2% of
Hialeah police officers and 1% of Hialeah firefighters were black.
Only 25.2% of black applicants passed the entry-level police
examination, while whites had a 61.9% passing rate. Furthermore,
only 67.2% of black applicants passed the entry-level exam for the
fire department, while 95.9% of white applicants passed that
examination.
In May 1993, the Department of Justice told the City that its
hiring practices violated Title VII. Specifically, the Department
claimed that the number of blacks in the police and fire
3
departments did not adequately reflect their presence in the
workforce. The Department also contended that the City's entry-
level examinations for these positions had an adverse impact on
blacks and were not consistent with business necessity.
Between May 1993 and June 1994, the City and the Department of
Justice negotiated a settlement agreement. No representatives of
either the police or fire unions were included in any part of these
negotiations. Under the terms of the settlement agreement, the
City, while not admitting to any Title VII violations, agreed to:
(1) establish a recruitment program aimed at increasing the number
of black police and firefighters; (2) develop written entry-level
examinations that are consistent with business necessity or that do
not adversely impact blacks; and (3) provide individual relief to
black applicants who had been denied positions in the past solely
because of their test scores.
That individual relief was to be composed of three components:
(1) a monetary settlement of $450,000 to be distributed among
eligible claimants as back pay; (2) a commitment to provide
priority employment in each department to fifteen blacks who had
been denied employment solely because of test scores, meaning that
each department would hire its next fifteen employees from the
class of eligible claimants; and (3) each claimant hired under the
priority employment provision would receive remedial retroactive
seniority dating from six months after his or her original
application for employment. The settlement agreement terms were
incorporated into a proposed consent decree.
4
After the Department of Justice and the City completed their
settlement discussions, the Department filed, on behalf of the
United States, a Title VII complaint against the City on June 7,
1994. On the same day, the City and the Department filed a joint
motion requesting that the district court approve the proposed
settlement agreement and enter the consent decree.
On June 29, 1994, the district court granted a motion by the
United States to join as defendants the Dade County Police
Benevolent Association (PBA) and the Hialeah Association of
Firefighters, Local 1102 of the International Association of
Firefighters, AFL-CIO (Local 1102). Those unions are the authorized
collective bargaining units for Hialeah police officers and
firefighters. The Department of Justice contended that the joinder
of those two unions was necessary to insure that the relief
provisions of the settlement agreement could be fully implemented.
Neither union, however, had been allowed to participate in the
formulation of the settlement agreement that the parties asked the
district court to impose. Attorneys for Local 1102 had expressed
interest in taking part in the negotiations two weeks before the
Department of Justice filed its complaint; the Department, however,
never invited either union to participate.
On August 11, 1994, the district court held a fairness
hearing, at which time it allowed Raul Suau and approximately 200
other individual police officers to intervene. At the fairness
hearing, the district court did not allow the Suau objectors to
develop evidence that they claimed would contradict the statistical
5
evidence that the Department of Justice used to build its prima
facie case. Nor did the district court allow the Suau objectors to
cross-examine the government’s statistical expert. However, the
district court did allow the unions and the Suau objectors to
present nonevidentiary objections to the provision granting
retroactive competitive seniority to blacks hired pursuant to the
settlement agreement. “Competitive seniority” determines the
allocation of benefits for which employees must compete with one
another, such as shift assignments, promotions, and transfers. In
contrast, “benefit seniority” determines benefits such as vacation
time, compensation levels, and pension benefits that depend solely
on that employee's longevity. The unions and the Suau objectors
had no quarrel with the benefit seniority provisions, which did not
adversely affect them. They did object, however, to granting the
new hires retroactive competitive seniority, which they contend
violates the rights of incumbent police and firefighters under
their collective bargaining agreements with the City.
In an order dated August 16, 1994, the district court found
that the United States had established a prima facie case of
discrimination in the City's hiring practices for the police and
fire departments. The court also concluded that the proposed
decree was narrowly tailored to remedy that past discrimination.
Notwithstanding those findings, the court refused to approve the
consent decree. The court explained that affording competitive
seniority benefits to those hired under the settlement agreement
would violate the contractual rights of firefighters and police
6
already working for the City, and it would have an “unfair, adverse
impact” on current police and fire department employees. The
district court urged all of the parties to negotiate a workable
substitute remedy that avoided the problems of the proposed
agreement while allowing for immediate relief. The United States
filed a notice of interlocutory appeal on October 13, 1994, and the
Suau objectors filed a notice of cross-appeal shortly thereafter.
On December 9, 1994, the district court approved a partial
settlement agreement and consent decree that resulted from the
negotiations of all of the parties involved in this case. That
decree, which is not being appealed, is materially identical to the
proposed consent decree that the district court refused to approve
earlier, in all but one respect: it leaves for litigation the
question of whether retroactive competitive seniority should be
imposed. Thus, the sole issue which remains for this appeal is
whether the district court erred in concluding that it should
refuse to enter without a trial the retroactive competitive
seniority provisions of the proposed consent decree, over the
objections of parties who would be adversely affected by those
provisions.
II. STANDARD OF REVIEW
Subject matter jurisdiction over this appeal is a legal issue
which we address in the first instance. See Stovall v. City of
Cocoa, 117 F.3d 1238, 1240 (11th Cir. 1997).
7
Our review of a district court’s refusal to approve a proposed
settlement agreement and enter a consent decree depends upon the
basis of the refusal. See id. The district court has the
responsibility to insure that a consent decree is not “unlawful,
unreasonable, or inequitable.” United States v. City of
Alexandria, 614 F.2d 1358, 1361 (5th Cir. 1980). To the extent
that the district court's refusal to approve the settlement
agreement was based on its conclusion that the proposed agreement
would violate the contractual rights of incumbent employees, this
appeal presents a question of law that we review de novo. See
Stovall, 117 F.3d at 1240; United States v. City of Miami, 664 F.2d
435, 451 n.7 (Former 5th Cir. 1981) (en banc)(Gee, J., concurring
in part and dissenting in part) (“It is difficult to envision an
issue more purely legal than that of whether one written agreement,
the consent decree, conflicts with another written compact, the
existing collective bargaining agreement.”).
III. DISCUSSION
A. SUBJECT MATTER JURISDICTION OVER THE APPEAL
The unions and the Suau objectors contend that no
jurisdictional basis exists for this interlocutory appeal.
Normally, only final judgments are appealable. See 28 U.S.C. §
1291. One exception to this rule is 28 U.S.C. § 1292(a)(1), which
permits this Court to review “[i]nterlocutory orders of the
district courts . . . refusing . . . injunctions.” The United
States contends that this appeal falls within that exception.
8
Congress did not intend for the injunction exception to open
the floodgates to piecemeal appeals. The Supreme Court has
repeatedly cautioned that the “exception is a narrow one and is
keyed to the 'need to permit litigants to effectually challenge
interlocutory orders of serious, perhaps irreparable,
consequence.'” Gardner v. Westinghouse Broadcast Co., 437 U.S. 478,
480, 98 S. Ct. 2451, 2453 (1978) (quoting Baltimore Contractors v.
Bodinger, 348 U.S. 176, 181, 75 S. Ct. 249, 252 (1955)).
In Carson v. American Brands, 450 U.S. 79, 84, 101 S. Ct. 993,
996 (1981), the Supreme Court held that an interlocutory order must
meet two requirements to be appealable under 28 U.S.C. §
1292(a)(1). First, if the relief sought is not actually an
injunction, then it must have the practical effect of an
injunction. See Carson, 450 U.S. at 83-84, 101 S. Ct. at 996.
Second, for an appeal to be proper under 28 U.S.C. § 1292(a)(1),
the appellant must show that the interlocutory order of the
district court “might have a serious, perhaps irreparable,
consequence, and that the order can be effectually challenged only
by immediate appeal.” Id. at 84, 101 S. Ct. at 997 (internal
quotation marks omitted); see also Roberts v. St. Regis Paper Co.,
653 F.2d 166, 170 (5th Cir. Unit B Aug. 1981) (noting that order is
appealable under § 1292(a)(1) only if denial of appealability would
result in irreparable harm).
The United States contends that notwithstanding Carson’s
explicit mention of two prerequisites for jurisdiction, it
effectively establishes a uniform rule that all orders refusing to
9
enter consent decrees in Title VII cases are automatically
appealable under § 1292(a)(1). A close examination of the two
Carson prerequisites and their application to Title VII cases leads
us to conclude that the United States is correct about that.
Whenever a district court refuses to enter a Title VII consent
decree, the plaintiffs can immediately appeal that order under 28
U.S.C. § 1292 (a)(1) instead of waiting until after the district
court has entered a final judgment in the case.
Several considerations convince us of this conclusion. For
example, the Supreme Court has subsequently made a statement
indicating that Carson makes all orders refusing to enter a consent
decree in Title VII cases interlocutorily reviewable. In Local No.
93 v. City of Cleveland, 478 U.S. 501, 517, 106 S. Ct. 3063, 3073
(1986), the Court stated that it had held in Carson that “a
District Court’s order denying entry of a consent decree is
appealable under 28 U.S.C. § 1292(a)(1).” Accord City of Miami,
664 F.2d at 442 (Rubin, J., concurring) (“[T]he Supreme Court
recently noted that a court’s refusal to approve a consent decree
in a Title VII case is an appealable order. . . .”). Even though
that statement by the Supreme Court in Local 93 was dictum, it is
of considerable persuasive value, especially because it interprets
the Court’s own precedent. See, e.g., Peterson v. BMI
Refractories, 124 F.3d 1386, 1392 n.4 (11th Cir. 1997)(“[D]icta
from the Supreme Court is not something to be lightly cast
aside.”).
10
Another reason for our holding flows directly from analysis of
the two jurisdictional requirements that Carson announced. Every
refusal to enter a Title VII consent decree will satisfy both
Carson requirements for interlocutory jurisdiction. First, such a
denial will always have “the practical effect of refusing an
injunction.” Carson, 450 U.S. at 84, 101 S. Ct. at 996. A consent
decree will always contain injunctive relief because, by
definition, a consent decree obligates the defendant to “stop
alleged illegal activity.” Black's Law Dictionary 410 (6th ed.
1991). For example, the proposed consent decree in this case would
have the effect of an injunction, because it would obligate the
City to hire a total of thirty black police and firefighters and
would prevent the City from using its current written entry-level
exams to fill future openings. An order refusing to enter a
consent decree in a Title VII case, therefore, satisfies the first
requirement for interlocutory jurisdiction under Carson.
Second, a district court’s refusal to enter a Title VII
consent decree can be “‘effectually challenged’ only by immediate
appeal” because it “might have a ‘serious, perhaps irreparable,
consequence.’” Id. at 84, 101 S. Ct. at 997. Title VII embodies a
strong preference for voluntary settlement of employment
discrimination cases. See, e.g., Alexander v. Gardner-Denver Co.,
415 U.S. 36, 44, 94 S. Ct. 1011, 1017 (1974) (“Cooperation and
voluntary compliance were selected as the preferred means for
achieving [the goals of Title VII.]”). The Carson Court noted that
because litigation might cause an essential party to withdraw its
11
assent to the decree, denying interlocutory review might destroy
the conditions that permitted compromise in the first place, which
would be in contravention of the strong public policy favoring
voluntary settlement of Title VII cases. See Carson, 450 U.S. at87-88 & n.13, 101 S. Ct. 998 & n.13.
That the City is not the party most affected by the
competitive seniority provision of the proposed decree complicates
the question of whether the possibility that the City might later
withdraw its consent creates an irreparable injury for the purposes
of Carson. However, we need not decide whether the possibility
that the City might withdraw its consent alone creates an
irreparable injury in this case. The Supreme Court’s opinion in
Carson identifies an additional source of irreparable injury which,
when considered in conjunction with the strong policy in favor of
settlement of Title VII cases, renders an order refusing to enter
a Title VII consent decree interlocutorily appealable. The opinion
indicates that postjudgment review of a refusal to enter a consent
decree raises serious problems even when the parties to the
agreement continue to support the decree. See Carson, 450 U.S. at88 n.14, 101 S. Ct. at 998 n.14. One such problem is that the court
reviewing a final judgment may be forced to choose between the
relief upon which the parties had agreed and the relief ordered by
the trial court. See id.The Supreme Court explained in Carson that making that choice
correctly would be difficult, because “delaying appellate review
until after final judgment would adversely affect the court of
12
appeals’ ability fairly to evaluate the propriety of the district
court’s order.” Id. If the trial court ultimately ordered relief
that differed from that originally agreed to by the parties, the
reviewing court might be less likely to view the provisions of the
original proposal as favorably as it might otherwise have.
Deferring review of an order refusing to enter a consent decree in
a Title VII case will always create a risk of irreparable harm
because, even when no risk exists that the parties’ willingness to
compromise will be disrupted, having to go through litigation poses
a risk to the settlement of cases and to a fair evaluation of the
original proposal in any post-trial appeal.
An order refusing to enter a Title VII consent decree,
therefore, will always pose a risk of irreparable harm as Carson
envisioned it. Consequently, whenever a district court refuses to
enter a consent decree in a Title VII case, that order is
immediately appealable under 28 U.S.C. § 1292(a)(1). We therefore
have jurisdiction over the government’s appeal in this case.1
B. REFUSAL OF THE DISTRICT COURT TO APPROVE THE CONSENT DECREE
1. A Consent Decree Requires the Consent of All Parties
Whose Legal Rights Will Be Affected By the Decree
1
As indicated, our holding in this case is compelled by the
reasoning and language in Carson, another Title VII case the
decision of which was based in part upon the strong,
congressionally indicated preference in favor of settling Title VII
cases. See Carson, 450 U.S. at 88 n.14, 101 S. Ct. at 998 n.14
(“In enacting Title VII, Congress expressed a strong preference for
encouraging voluntary settlement of employment discrimination
claims.”); see also Alexander, 415 U.S. at 44, 94 S. Ct. at 1017(1974). The question of whether a district court’s order rejecting
a proposed settlement agreement in a non-Title VII case is
interlocutorily appealable is not before us, and we express no view
on it.
13
We turn now to the merits of the appeal. The United States
contends that the objection of the unions and the Suau objectors to
the remedial seniority part of the proposed decree is insufficient
to prevent its entry. It is true that opposition to a proposed
consent decree will not always operate as a bar to it. While a
party “is entitled to present evidence and have its objections
heard at the [fairness] hearings . . ., it does not have the power
to block [the] decree merely by withholding its consent.” See
Local No. 93 v. City of Cleveland , 478 U.S. 501, 529, 106 S. Ct.
3063, 3079 (1986). However, the objection of a party whose rights
or claims would be adversely affected does bar a proposed consent
decree. See id. (“parties who choose to resolve litigation through
settlement may not dispose of the claims of a third party”). Our
holdings in United States v. City of Miami , 664 F.2d 435 (Former
5th Cir. 1981) (en banc), and White v. Alabama, 74 F.3d 1058 (11th
Cir. 1996), make it clear that a consent decree requires the
consent of all parties whose legal rights would be adversely
affected by the decree.
a. The City of Miami Decision
Although the en banc decision of the former Fifth Circuit in
City of Miami was released after the circuit split, it is part of
the law that is binding upon subsequent panels in this circuit.
See White, 74 F.3d at 1074 n.50. In the City of Miami case, the en
banc court vacated in relevant part a district court order
approving a consent decree. The decree had provided that when a
minority employee had the greatest seniority in a particular
14
position and was qualified for a promotional opportunity, the city
was required to promote that minority employee unless another
applicant had demonstrably superior qualifications. See City of
Miami, 664 F.2d at 446 (Rubin, J., concurring). That provision of
the decree conflicted with the police officers' collective
bargaining agreement, which guaranteed that promotions would be
made on the basis of civil service examination scores. The police
union (the FOP) objected to that part of the decree, arguing among
other things, “the impropriety of enforcing the decree against the
FOP without a trial between the City and the Attorney General.”
Id.Accepting that argument, the en banc Court held: “A party
potentially prejudiced by a decree has a right to a judicial
determination of the merits of its objections.” Id. at 447.2 It
explained that a “party is prejudiced if the decree would alter its
contractual rights and depart from the governmental neutrality to
racial and sexual differences that is the fundament of the
2
Even though Judge Rubin’s concurring opinion in City of Miami
was joined by only five of the twenty-four judges who participated
in that decision, we quote from and cite it as the opinion of the
Court. The reason we do so is, as the introductory per curiam
opinion in that case explains, while there is no majority opinion,
Judge Rubin’s opinion is the narrowest basis for the Court’s
appellate judgment, and serves as its mandate. See 664 F.2d at 436(per curiam).
Another opinion, authored by Judge Gee, and joined by a total
of 11 judges would have granted even more relief to the objecting
police officers and ordered a broader remand on their behalf. See
id. Thus, a total of 16 of the 24 judges participating in City of
Miami agreed that a trial cannot be dispensed with by a consent
decree which would affect the contractual rights of an objecting
party.
15
Fourteenth Amendment in order to redress past discrimination.” Id.The rule is that “[t]hose who seek affirmative remedial goals that
would adversely affect other parties must demonstrate the propriety
of such relief.” Id. Such a demonstration requires a trial on
the merits (or a valid summary judgment, which was not even sought
in this case), and it cannot be accomplished in a consent decree
proceeding if the rights of a nonconsenting third party are
affected. As the City of Miami opinion explained: “parts of the
decree do affect the third party who did not consent to it, and
these parts cannot properly be included in a valid consent decree.”
Id. at 442.
Those holdings from City of Miami would seem to dispose of the
matter. However, the United States contends that the requisite
“demonstration” of intentional discrimination need not be made in
a trial of the merits to final judgment, and it is enough if a
court finds that a prima facie case has been established. Even if
we adopted that position we would not apply it in this case,
because the district court did not give the Suau objectors a full
opportunity to contest the existence of a prima facie case. The
Suau objectors were not given permission to intervene until the
date of the fairness hearing. As soon as the court granted their
motion to intervene, they asked for the opportunity to develop and
present evidence of their own, but that request was denied. They
also asked to cross-examine the statistician whose affidavit the
United States proffered to show a prima facie case. The Suau
objectors stated that:
16
if given an opportunity to question Dr.
Thompson, then we would be able to establish
that her area of expertise is not labor
economics and that her, and that she lacks the
ability as an expert to offer an opinion as to
what the relevant labor market should be for
determining that there is an under-
representation within the relevant labor
market.
The district court denied that request. The requirements of due
process dictate that if the issue of whether a prima facie case
exists is to be decisive, each party should be afforded a full and
fair opportunity to present evidence relevant to that issue and to
contest evidence proffered by any other party. That did not happen
in this case.
In any event, the facts of City of Miami, as well as the
explicit holding of that decision, preclude any holding that a
prima facie case is enough to justify dispensing with an objecting
party’s right to a full adjudication of its position on the merits
in a trial. As to the facts in City of Miami, the United States
and the City entered a stipulation which showed “gross statistical
disparities presented in the workforce” concerning the number of
blacks, Latins, and women compared to white males, and also a
“striking disparity in earnings.” United States v. City of Miami,
614 F.2d 1322, 1332, 1339 (5th Cir. 1980). The panel opinion in
that case noted that the FOP, the party objecting to entry of the
consent decree, did not challenge those statistics. See id. at
1339. Likewise, the en banc opinion observed that while urging
the district court to conduct a “full-blown trial,” the FOP had
“proffered no evidence and did not attempt to controvert in any way
17
the stipulation between the United States and the City.” 664 F.2d
at 438-39. Furthermore, in that case the City admitted the
requisite past discrimination. See id. at 443-44.
As the en banc opinion in City of Miami summarized it: “The
United States and the City stipulated data that supported the
inference of past discrimination, and they agreed to a statement in
the text of the decree that the City had discriminated against
blacks, Latins, and women.” Id. at 444. The panel opinion in that
case explicitly found that the stipulated statistics alone “present
an overwhelming prima facie case of discriminatory employment
practices.” 614 F.2d at 1339. The en banc opinion did not
disagree with that finding. Therefore, there was a prima facie
showing of discrimination in City of Miami. If the existence of a
prima facie case were enough to justify abrogating an objecting
party’s rights via a so-called “consent decree,” City of Miami
would have been decided differently. Because it was not, we are
bound to reject the United States’ position.
Another insurmountable hurdle to the United States’ attempt to
surmount the en banc holding in City of Miami is the explicit
language of that decision itself. In complex cases good opinions
often state their holdings with careful specificity near the
beginning and again at the end of the opinion. Judge Rubin’s
opinion in the City of Miami case does that. The first paragraph
of his opinion for the en banc court consists of these three
sentences:
This case requires us to examine the
circumstances under which, and the procedure
18
by which, a court may enter a consent decree
in a multiparty suit when some, but not all,
of the litigants agree to the decree and
parts, but not all, of the decree affect the
rights of a nonconsenting party. We conclude
that a decree disposing of some of the issues
between some of the parties may be based on
the consent of the parties who are affected by
it but that, to the extent the decree affects
other parties or other issues, its validity
must be tested by the same standards that are
applicable in any other adversary proceeding.
Most parts of the decree entered by the trial
court in this Title VII case pass the
requisite muster, and we affirm them; however,
because a part of the decree, entered without
a trial, affects the rights of an objecting
party, we limit its effect as to that party
and remand for trial of the complaint insofar
as a remedy is sought against that party.
664 F.2d at 436 (emphasis added).
The first sentence of that first paragraph of the City of
Miami opinion states the issue in that case, which is identical to
the issue in this case. The second sentence states the conclusion
of the Court: to the extent a proposed consent decree affects the
rights of nonconsenting parties, “its validity must be tested by
the same standards that are applicable in any other adversary
proceeding.” In “any other adversary proceeding” a nonconsenting
party’s rights cannot be abrogated merely upon a showing of a prima
facie case; that can be done only in a judgment entered following
trial (or summary judgment). In order to remove any doubt, the
third and last sentence of the opening paragraph unambiguously
states that as to the objecting party, the case is “remand[ed] for
trial of the complaint insofar as a remedy is sought against that
party.” The opinion says “for trial,” not for any proceeding short
19
of trial. It certainly does not say that the remand was for the
purpose of determining whether a prima facie case could be
established. One already had been. More than a prima facie case
is required by the City of Miami decision. The more that is
required is a trial. The very first paragraph of the opinion could
not have been clearer about that.
Likewise, the concluding three sentences of the City of Miami
opinion, in a section labeled “Mandate,” state:
The case is remanded, in addition, for further
proceedings, consistent with this opinion, to
determine whether the United States has the
right to claim any relief concerning police
promotion. If, at trial, the United States
can prove that the City has discriminated
against black, Spanish-surnamed, or female
police officers, or that the City has so
discriminated in its employment policy as to
prejudice their opportunities for promotion,
and that affirmative action in favor of the
affected class is appropriate remedial action,
the United States may seek such relief,
including reimposition of the contents of
paragraph 5(c). The FOP shall, of course, be
afforded the opportunity either to contend
that discrimination, the necessary predicate
for relief, has not been proved, or to show
that the type of relief embodied in paragraph
5(c) is, in this instance, unnecessary,
inadvisable, or unconstitutional.
Id. at 448 (emphasis added). The first sentence remands for
further proceedings consistent with the opinion, and the second
sentence explicitly states that those proceedings are to occur “at
trial.” Both the second and third sentences speak of what the
United States is required to prove at that trial, not what it may
simply suggest with a prima facie case. Thus, the explicit
language of the concluding paragraph, as well as that of the
20
opening paragraph, in the City of Miami opinion precludes
interpreting that decision as permitting an objecting party’s
rights to be dispensed with upon nothing more than a prima facie
showing of discrimination. Proof at trial is required.
b. The White Decision
This Court recently applied and followed the City of Miami
rule in White v. Alabama, 74 F.3d 1058 (11th Cir. 1996), a decision
which vacated a district court's judgment approving and
incorporating a settlement agreement that would have altered the
manner in which Alabama state judges were selected. The district
court, finding that the original plaintiffs had established a prima
facie case that the Voting Rights Act had been violated, entered
what purported to be a “consent decree.” That decree was consented
to by the original plaintiffs, by the State Attorney General, and
by the Department of Justice. See id. at 1073. But two
intervening plaintiffs and an intervening defendant did not consent
to entry of the decree; they objected to it. See id. at 1064-67,
1072-74. Nonetheless, the district court entered the decree
without a trial, treating it as a consent decree. See id. at 1073
n.48.
We were unequivocal in explaining why there could be no
consent decree absent consent of all the parties whose rights would
be affected:
First, the district court’s final
judgment is not a consent decree. It is a
final judgment, because it disposes of all of
the claims and defenses of all of the parties
in the case. See 28 U.S.C. § 1291; Andrews v.
United States, 373 U.S. 334, 83 S.Ct. 1236, 10
21
L.Ed.2d 383 (1963). But it is not a final
consent decree, because not all of the parties
consented to its entry. White, the Attorney
General, the Department of Justice, and the
district court refer to the final judgment as
a “consent decree.” That, however, does not
make it one.
Id. at 1073 (emphasis added). To ensure no one missed the point,
in the very next paragraph we reiterated that: “In this circuit, a
decree that provides a remedy agreed to some, but not all, of the
parties cannot affect the rights of a dissenting party.” Id. Of
course, we cited for that proposition the City of Miami en banc
decision. See id.The dissenting opinion in this case attempts to perform
reconstructive surgery on White by suggesting that it really does
not mean, as it plainly said, that a consent decree requires the
consent of all the parties whose rights are affected. Instead, the
dissenting opinion contends, a decree entered by consent of some
parties can modify or affect the rights of a dissenting party, so
long as the party getting shafted has not formally pleaded any
claims, i.e., is not a plaintiff or third-party plaintiff.
Neither White, nor City of Miami which it cites, imply that
parties who have pleaded claims are the only ones whose consent is
necessary and whose legal rights matter. Indeed, in White one of
the parties whose objection prevented entry of a consent decree was
an intervening defendant who had not pleaded any claim; he just
wanted to maintain the status quo. See 74 F.3d at 1075 n.51. Nor
does the dissenting opinion explain why a nonconsenting plaintiff’s
rights should be given more protection than a nonconsenting
22
defendant’s rights, or any other party’s rights that were asserted
in an objection instead of in a claim.
The dissenting opinion points to footnote 53 of the White
opinion, which discussed Local No. 93 v. City of Cleveland, 478
U.S. 501, 106 S.Ct. 3063 (1986). That discussion does not detract
from the clear holding in White or support the position of the
dissenting opinion. Instead, the discussion clearly recognizes
that in Local No. 93 the Supreme Court acknowledged that “had the
settlement affected the union’s rights, the decree could not have
been entered without its consent.” 74 F.3d at 1075 n.53. TheCity
of Miami decision also puts the focus on whether the rights of
objecting parties would be affected by the decree. See City of
Miami, 664 F.2d at 447 (“[t]hose who seek affirmative remedial
goals that would adversely affect other parties must demonstrate
the propriety of such relief”) (emphasis added); id. at 436 (“to
the extent the decree affects other parties”); id. (“because a part
of the decree, entered without a trial, affects the rights of an
objecting party, we...remand for trial....”) (emphasis added). We
follow the explicit holdings of White and City of Miami. Those
holdings bind this Court as well as the district court, and they
forbid entry of a “consent decree” insofar as it adversely affects
the legal rights of an objecting party, whether that party is a
plaintiff or defendant.
c. The Local No. 93 and Franks Decisions
As a subsequent panel, we are bound by the White panel’s
interpretation of the Supreme Court’s Local No. 93 decision. See,
23
th
e.g., United States v. Hutchinson , 75 F.3d 626, 627 (11 Cir.
1996). That interpretation, which holds that to the degree a
consent decree diminishes a party’s legal rights, it cannot be
entered over that party’s objections, see White, 74 F.3d at 1075
n.53, is inconsistent with the dissenting opinion’s reading of
Local No. 93. However, even if we were writing on a clean slate we
would interpret Local No. 93 the same way White did.
The express language of Local No. 93 refutes the dissenting
opinion’s contention that, under the Supremacy Clause, contractual
rights guaranteed by Florida law cannot prevent entry of a consent
decree. That decision explicitly recognizes that a consent decree
cannot dispose of the contractual rights of objecting parties. The
Local No. 93 Court affirmed entry of the consent decree in that
case because “the consent decree does not purport to resolve any
claims the Union might have ... as a matter of contract.” 478 U.S.
at 530, 106 S. Ct. 3079. The union intervenor in Local No. 93 ,
unlike the intervenors in this case, did not assert any legal
rights that would be impinged by the consent decree. See 478 U.S.
at 508-11, 106 S. Ct. at 3067-69. Apparently, no established
collective bargaining rights were affected by the decree, because
the union did not contend that any were.3
3
The dissenting opinion contends that the Local No. 93 union
asserted that the decree “would affect the contractual expectations
of its members.” The language of Local No. 93, however, does not
support that contention. The most that Local No. 93 seems to have
alleged is that “promotions should be made on the basis of
demonstrated competency.” Local No. 93, 478 U.S. at 507, 106 S.
Ct. at 3067. Expectations aside, nothing in the opinion suggests
that the union ever asserted that the decree would violate
contractual rights. In fact, the Court commented that the union
24
As the Supreme Court pointed out in Local No. 93, the district
court provided the objecting union with several opportunities to
advance specific objections and to develop evidence to substantiate
those objections; the court even informed the union that vague
appeals to fairness could not prevent entry of the decree. See id.
at 528-29, 106 S. Ct. at 3079. Instead of detailing specific
claims as to how the decree would impair the rights of its members,
the union merely protested that “there must be a more equitable,
fair and just way to correct the problems caused by the [City],”
and that it was totally opposed “to the use of racial quotas which
must by their very nature cause serious racial polarization.” Id.
at 511, 106 S. Ct. at 3069. As the Supreme Court characterized it,
the union simply “express[ed] its opinion as to the wisdom and
necessity of the proposed consent decree.” Id. That is entirely
unlike City of Miami and this case, where the intervenors have
objected based upon their specific legal rights under Florida law,
rights that the decree would abrogate. See pp. 30-32, below.
Finally, the rule the dissenting opinion would read into Local
No. 93 not only cannot be found in the opinion in that case, it
cannot withstand scrutiny either. According to the dissenting
opinion, an objecting party’s existing legal rights can be
sacrificed to the interests of the other parties, without a trial,
so long as the intrusion on those rights does not obligate that
party “to do or not to do anything.” That would mean, for example,
“failed to raise any substantive claims.” Id. at 530, 106 S. Ct.
at 3079.
25
that the other parties could agree to use a “consent decree” to cut
the wages of the objecting union members, in violation of their
contractual rights, if the other parties deemed it necessary and
appropriate to do so in order to fund aspects of the remedy put
into place by the decree. Under the rule advocated by the
dissenting opinion, the union members whose wages were being cut
over their vehement objection would not be entitled to bar the
settlement or to insist upon a trial. What would matter is that
they were not being ordered to do anything by the decree. The City
could take care of the paperwork and other affirmative acts
necessary to actually reduce their compensation. Such are the
implications of the dissenting opinion’s interpretation of Local
No. 93, which is an interpretation we are confident never occurred
to the Supreme Court, and is also an interpretation foreclosed by
White.
The dissenting opinion also relies heavily upon Franks v.
Bowman Transportation Co., 424 U.S. 747, 96 S. Ct. 1251 (1976),
which it says “stands for the proposition that a third party cannot
block approval of a consent decree merely because the party will be
‘affected’ by the decree.” See dissenting op. at 11 - 12. The
reason Franks does not and cannot stand for that proposition is
that Franks only involved remedy issues arising after a full blown
trial at which the plaintiffs went further than merely showing a
prima facie case and actually proved that the defendant corporation
had engaged in a pattern of racially discriminatory practices. The
word “consent” is not mentioned, not even once in the Franks
26
opinion, because that decision had nothing at all to do with
consent decrees. Nowhere does the dissenting opinion explain how
Franks, which concerned the propriety of make-whole relief
following a finding of discrimination in violation of Title VII,
could possibly apply to this case, where the government conceded
before the district court that no finding of discrimination had
been made.
The dissenting opinion attempts to make more of Local No. 93
and Franks than either will support by combining language from the
Court’s opinions in the two cases as though it were all from the
same decision. See dissenting op. at 13. That is like trying to
produce a unicorn by crossing a mule with a rhinoceros. Local No.
93 is not a consent decree case in which the objecting party
articulated a specific contractual right that the decree would
contravene. Neither is Franks. Those two decisions cannot be
combined to produce what they are not. The issue before us is not
whether or when a third party’s legal rights must give way in order
to remedy a federal constitutional or statutory violation
established in a trial. Instead, the issue is whether based upon
the agreement of some other parties in the lawsuit a court can
abrogate, violate, or impinge upon the legal rights of an objecting
third party where the necessity or propriety of doing so has not
been established in a trial or by summary judgment.
Our difference with the dissenting opinion on this important
issue is evident in terminology. In the dissenting opinion, the
original class of potential claimants is referred to as the
27
“discriminatees” or the “actual victims of discrimination.” That
terminology assumes that a trial would reach that conclusion.
However, at the fairness hearing, the government indicated that it
was seeking only to establish a prima facie case of discrimination,
and that it had no intention of proving its case at that time. The
attorney for the government took the position that: “the district
court does not need to find discrimination. This is not a
litigated judgment.” The district court then indicated that it
would not make a finding of discrimination: “I agree with that.”
The court later added: “the trial judge ought not to try the case
in the settlement hearings.” Nothing in the record supports the
dissenting opinion’s assumption that the potential class of
plaintiffs have been demonstrated to be “discriminatees” or “actual
victims of discrimination.” Of course, if the desired conclusion
is assumed, it is a simple matter to reach that conclusion. For
the same reasons we would not do so in other cases where summary
judgment has not even been sought, we decline to assume there is no
point in having a trial in this case.
We concede that the dissenting opinion’s position, if taken to
its logical conclusion, might be a promising way to ease judicial
workloads. If we can dispense with the consent of the unions and
the intervening employees and resolve this case over their
objections, why should we not dispense with the consent of the City
as well? Why not let the Department of Justice, once it has
demonstrated a prima facie case, enter into a settlement agreement
with itself (and perhaps with the original plaintiff class as
28
well), and have the court enter a “consent” decree to that effect
even if the City objects? If the consent of the intervenors is not
required before their legal rights can be settled away, why should
the consent of the original defendant be required? Fortunately,
the holdings of the City of Miami and White decisions save us from
such possibilities, because those decisions compel the conclusion
that a proposed consent decree is due to be rejected if it would
affect the legal rights of the objecting parties. We turn now to
that question in this case.
2. The Proposed Consent Decree Would Adversely Affect
Legal Rights of the Intervenors
In this case, the police and firefighters' collective
bargaining agreements confer legal rights that the proposed consent
decree would affect adversely. The dissenting opinion concludes
that the decree at issue in this case is like the one that the
Court approved in Local No. 93 because both would affect future
promotions. However, that is where any similarity ends. Unlike
Local No. 93, the decree at issue in this case affects a wide range
of contractual rights that existing collective bargaining
agreements clearly guarantee incumbent employees. Examination of
those rights dispels any superficial similarity that may result
from a first glance comparison of Local No. 93 and the present
case.
Several of the rights that the Hialeah collective bargaining
agreements detail accrue strictly according to seniority. For
example, the City retains no authority to decide which firefighters
to call back for mandatory overtime. Article 52, Section 2 of the
29
Local 1102 agreement states that when additional firefighters are
needed on duty and the positions cannot be filled with voluntary
replacements, they “shall be filled via mandatory overtime by the
most junior available employee[s] of the appropriate rank.”
The collective bargaining agreement also confers seniority
rights involving some positions in the Fire Department, such as
those on the hazardous materials team. Article 51, Section 1 of
the agreement provides, “As positions open up on the hazardous
materials team, they shall be filled from among personnel who have
expressed an interest based on seniority in grade.” Because
allocation of such benefits is strictly according to seniority in
rank, a grant of retroactive seniority to some individuals
infringes other employees' accrued seniority rights.
Similarly, the Police Benevolent Association (PBA) bargaining
agreement provides seniority rights relating to promotions.
Article 1 of the PBA agreement defines seniority as “[t]hose rights
which accrue to an employee based on longevity in the department.
. . .” Subsequent provisions describe the rights that seniority
confers upon the police officers. Article 24 of the PBA agreement
specifies that: “Eligible applicants for the promotional
examination for Sergeant shall be entitled to one-fourth (1/4) of
a point for each full year of service as a Hialeah Police Officer.”
The settlement agreement's grant of retroactive seniority to new
hires would curtail the promotional rights of some incumbent
officers, because it would effectively grant the new hires
30
additional points on the promotional exam that they would not
otherwise receive.
In addition, the settlement agreement impinges on other
benefits which, although not determined purely according to
seniority, are worded in such a way that seniority will have a
substantial and often decisive impact. For example, Article 28 of
the PBA agreement, entitled “Seniority Privileges,” states that
once operational needs have been met, “seniority in rank will be
given preference with respect to days off and vacation time.” [R1-
9-At. 3 at 41] The firefighters' agreement contains a similar
provision. Both collective bargaining agreements contain
provisions that allocate other benefits such as shift preference
and transfer requests according to seniority once operational needs
have been met. Those provisions confer rights and benefits upon
union members that the proposed consent decree would undermine or
diminish.
The United States does not dispute that the proposed agreement
would harm the interests of current police and firefighters to some
extent. Counsel for the United States conceded at the fairness
hearings that incumbent employees “may even be slightly diminished
in their rights” by the proposed consent decree, which is akin to
saying that the rights of a pedestrian in a crosswalk may be
slightly diminished by a runaway truck. Notwithstanding its
concession, the United States contends that infringement of
incumbent employee rights does not allow those employees to block
approval of the settlement, because it is “speculative” whether the
31
proposed agreement's grant of retroactive seniority will cause any
incumbent employees to lose a shift or vacation preference or be
called back for mandatory overtime.
That contention cannot survive examination against existing
decisional law. In City of Miami, the Court invalidated parts of
a consent decree altering the City's procedure for promoting police
officers even though it was impossible to determine in advance
which -- or even that -- officers would be affected by the change;
the mere threat of injury to contractual rights was held to be
sufficient. See City of Miami , 664 F.2d at 446 (Rubin, J.,
concurring).4 As a result, under the law of this Circuit, the
retroactive seniority provision’s threat to the objectors’
competitive seniority benefits prevented entry of the consent
decree. The objectors were not required to prove with certainty
that particular employees would lose contractual benefits. In any
event, it is obvious that the decree in this case would have
adversely affected at least some of the incumbent employees.
The United States also argues that the proposed grant of
retroactive seniority cannot be said to impinge upon the rights of
incumbent employees, because the City retains some discretion in
allocating many of the benefits in the collective bargaining
agreements. There are two major problems with that argument.
First, as discussed above, some of the competitive seniority rights
are not subject to the City’s discretion at all. The opportunity
for firefighters to receive hazardous materials training, and the
4
See supra note 2.
32
right of police officers to receive the benefit of extra points on
their competitive sergeant’s exam for years of service are
contractual rights that accrue with seniority, and the City has
reserved no authority under the collective bargaining agreements to
infringe those rights. That alone is enough to defeat the United
States’ discretion argument.
Second, the discretion argument misses the point anyway.
Seniority rights subject to the City’s exercise of some discretion
in certain circumstances are neither the same as no seniority
rights at all, nor are they the same as seniority rights subject to
additional exceptions. Nothing in either collective bargaining
agreement authorized the City to modify seniority rights across the
board. Cf. People Who Care v. Rockford Bd. of Educ., 961 F.2d
1335, 1337 (7th Cir. 1992) (“When the parties to a decree seek to
enlarge their legal entitlements -- to grant themselves rights and
powers that they could not achieve outside of court -- their
agreement is not enough.”).
Florida law supports the conclusion that the proposed consent
decree would contravene the contractual rights of Hialeah police
and firefighters, because Florida statutory and constitutional law
give public employees a right to bargain collectively. See, e.g.,
Hillsborough County Governmental Employees Ass'n, Inc. v.
Hillsborough County Aviation Auth., 522 So.2d 358, 363 (Fla. 1988).
Collective bargaining is required by Florida law for important
terms of employment such as shift assignments, promotions, vacation
time, and mandatory overtime. See, e.g., City of Miami, 664 F.2d
33at 446 (“Under Florida law promotion is a subject for collective
bargaining for public employees.”); City of Miami v. F.O.P. Miami
Lodge 20, 571 So.2d 1309, 1312-13 (Fla. Dist. Ct. App. 1989)
(holding that public sector employers are obligated to engage in
collective bargaining process over broad range of issues, including
“wages, hours, and terms and conditions of employment” as well as
any changes in those terms or conditions), approved, 609 So.2d 31(Fla. 1992). Altering collectively bargained benefits through non-
collective bargaining mechanisms is contrary to Florida law.
Furthermore, public policy dictates that parties to a labor
agreement either live up to the terms of that agreement or pay for
the opportunity to alter those terms. “[P]arties to a collective-
bargaining agreement must have reasonable assurance that their
contract will be honored.” W.R. Grace & Co. v. Local Union 759,
461 U.S. 757, 771, 103 S. Ct. 2177, 2186 (1983). One party to a
collective bargaining agreement cannot use the device of a
nonconsensual consent decree to avoid its obligations, which the
other party negotiated and bargained to obtain. As we have
previously observed in these circumstances: “The Florida cases hold
that, when a subject is encompassed within the terms of an existing
contract, a public employer may not foreclose bargaining on the
subject or unilaterally alter the terms and conditions of
employment.” City of Miami, 664 F.2d at 447.
Because a grant of retroactive seniority would alter the
rights and benefits of incumbent employees under the collective
bargaining agreements, approval of that part of the proposed
34
decree over the unions' objections would violate the police and
firefighters' collective bargaining rights under Florida law. If
the City wants to alter the manner in which competitive benefits
are allocated, it must do so at a bargaining table at which the
unions are present. Or, that must be done pursuant to a decree
entered after a trial at which all affected parties have had the
opportunity to participate.
3. If a Title VII Violation is Established at Trial, the
District Court Can Consider the Remedy Set Out in the
Proposed Decree
If a Title VII violation is found after a trial at which the
affected parties are represented, modification of otherwise legally
enforceable seniority rights may be part of a necessary and
appropriate remedy. See United States v. City of Chicago, 978 F.2d
325, 332 (7th Cir. 1992) (“[U]nder some circumstances, federal
courts may require an innocent third party to participate in
remedies for illegal discrimination.”). To the extent necessary
and proper, Florida law will have to yield in that situation. But
modifying seniority rights to remedy a Title VII violation found
after a trial is entirely different from modifying them without a
trial based upon a “consent decree” to which adversely affected
parties have objected. The important point is that an objecting
party is entitled to an adjudication of its rights on the merits
before those rights are infringed or modified by court decree. The
district court was correct in concluding that it lacked the
35
authority to deprive the objecting parties of that entitlement in
this case.5
4. Summary
What happened in this case is that the Department of Justice
and the City of Hialeah crafted a settlement agreement without the
consent or input of the unions or individual police and
firefighters whose contractual rights, recognized and protected
under Florida law, would be affected by the agreement. The
Department refused to permit the police and firefighters to
participate in the negotiations. The resulting settlement
agreement and proposed consent decree would impair important rights
guaranteed to the police officers and firefighters in their
collective bargaining agreements.
At several points in its briefs, the United States cites the
policy favoring negotiation and settlement of Title VII claims in
support of its argument that the district court should have
approved the agreement and decree. The United States also argues
that a consent decree that it negotiates carries a considerable
presumption of validity because the Department of Justice
represents the interests of all citizens. See Williams v. City of
New Orleans, 729 F.2d 1554, 1560 (5th Cir. 1984). These arguments
are heavy with irony, given that the Department of Justice
5
Because we conclude that the district court lacked the
authority to approve the settlement agreement, we need not consider
the government's contention that the district court erred in
finding that the retroactive seniority provision should not be
approved because it would have an unusual, unfair adverse impact on
current employees. See Franks v. Bowman Transp. Co., Inc., 424 U.S.
747, 96 S. Ct. 1251 (1976).
36
restricted its “negotiations” to the City, a party with no interest
adverse to the Department’s competitive seniority proposals. If the
Department had been concerned about the interests of all citizens
and had been interested in “negotiation” and “settlement” in the
non-Orwellian sense, it would have attempted to reach an agreement
with all of those whose rights were at stake. Instead, the
Department disregarded the interests and rights of some parties
based upon their races, and it asked a United States district court
to do the same. The district court correctly rejected the
Department of Justice’s request to ram the proposed settlement
agreement down the throats of the unions and individual objectors
without affording them a fair adjudication of their rights.
As Judge Gee recognized in City of Miami, for the district
court to enter a proposed decree in such a situation would
contravene basic principles of fairness:
An appellant is before us complaining that it
has had no day in court -- has never been set
for trial or had notice of a setting -- but
has been judged away. This error is so large
and palpable that, like an elephant standing
three inches from the viewer’s eye, it is at
first hard to recognize. The major dissent is
reduced to arguing that it is all right to
enter a permanent injunction without a trial
against one who is unable, in advance of such
a trial, to show the court how his rights will
be infringed by the order. Here is new law
indeed, law that we cannot accept.
City of Miami, 664 F.2d at 651 (Gee, J., concurring in part and
dissenting in part). Just as the en banc court did in City of
Miami, we see the elephant. We will not close our eyes to its
existence. We will not hold that a party’s legally enforceable
37
contractual rights can be discarded without affording that party
the right to litigate the case on the merits.
C. JURISDICTION OVER THE SUAU OBJECTORS' CROSS-APPEAL
In their cross-appeal, the Suau objectors contend that the
district court erred in concluding that the United States had
demonstrated a prima facie case of discrimination. Because we
affirm the district court's refusal to enter the consent decree,
the Suau cross-appeal is moot. See, e.g. , Pacific Ins. Co. v.
General Development Corp., 28 F.3d 1093, 1096 (11th Cir. 1994) (per
curiam) (appeal is moot when it fails to present a controversy with
respect to which the court can provide meaningful relief).
Accordingly, their cross-appeal is due to be dismissed. However,
as we have pointed out, the Suau objectors, at least, were refused
a full and fair opportunity to present their own evidence and to
meaningfully test the statistics upon which the effort to establish
a prima facie case was based. Our dismissal of the cross-appeal on
jurisdictional grounds should not be read to imply that the
question of whether a prima facie case exists has been settled.
IV. CONCLUSION
A district court may not enter parts of a proposed consent
decree that operate to diminish the legal rights of a party who
objects to the decree on that basis. The part of the decree at
issue in this case would diminish the contractual seniority rights
of incumbent Hialeah police officers and firefighters, who objected
38
to it for that reason. Therefore, the district court’s refusal to
enter that part of the decree was proper.
We AFFIRM the district court’s judgment. The Suau objectors’
cross-appeal is DISMISSED AS MOOT.
39