O'Sullivan, Gerald v. City of Chicago ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-1412 & 03-1436
GERALD O’SULLIVAN, et al.
Plaintiffs-Appellants,
v.
CITY OF CHICAGO,
Defendant-Appellee.
____________
Appeals from the United States District Court for
the Northern District of Illinois, Eastern Division.
Nos. 01 C 861 & 02 C 4300—John W. Darrah, Judge.
____________
ARGUED NOVEMBER 7, 2003—DECIDED JANUARY 31, 2005
____________
Before COFFEY, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. The plaintiffs in the two actions now
before us are current and former lieutenants in the Chicago
Police Department who were denied promotion to captain.
They filed suit against the City of Chicago (“City”) to
enforce a consent decree entered in 1983 that required the
City of Chicago to make hiring and promotion decisions
without reference to an individual’s political affiliation. The
City moved to dismiss the complaints on the ground that
the plaintiffs lacked standing to enforce the decree. The
district court granted the motion to dismiss, and the plain-
2 Nos. 03-1412 & 03-1436
tiffs appealed. We now reverse the judgment of the district
court and remand the case for further proceedings consis-
tent with this opinion.
I
BACKGROUND
A. The History of the Shakman Litigation
1. The Original Shakman Litigation
In 1969, Michael Shakman, an independent candidate
seeking election to the Illinois Constitutional Convention,
and one of his supporters, brought suit on behalf of them-
selves, other candidates for public office and other voters
against a number of governmental entities and officials,
including the City of Chicago and its Mayor. The class of
plaintiffs alleged that the defendants maintained a patron-
age system: Government jobs were awarded (or retained)
based on a prospective employee’s or current employee’s
support of Democratic candidates. The plaintiffs alleged
that this patronage system violated the right of candidates
to associate with supporters, the right of voters to a free
electoral process and the right of public employees to asso-
ciate with candidates from other parties.
The district court dismissed the complaint for lack of
standing. It reasoned that the named plaintiff, as a candi-
date and voter, was the “wrong party to complain about al-
leged wrongs incurred by patronage workers.” Shakman v.
Democratic Org. of Cook County, 310 F. Supp. 1398, 1401 (N.D.
Ill. 1969).
This court reversed. We stated:
The interest in an equal chance and an equal voice is
allegedly impaired in the case before us by the misuse
Nos. 03-1412 & 03-1436 3
of official power over public employees so as to create
a substantial, perhaps massive, political effort in favor
of the ins and against the outs. We conclude that these
interests are entitled to constitutional protection from
injury of the nature alleged as well as from injury
resulting from inequality in election procedure.
Shakman v. Democratic Org. of Cook County, 435 F.2d 267, 268
(7th Cir. 1970) (“Shakman I”). Following the remand, the
City and the other defendants agreed to a consent judgment
entered on May 5, 1972 (“1972 Consent Decree”).
2. 1972 Consent Decree
The 1972 Consent Decree prohibited the defendants from
“conditioning, basing or knowingly prejudicing or affecting
any term or aspect of governmental employment, with re-
spect to one who is at the time already a governmental em-
ployee, upon or because of any political reason or factor.”
Appellants’ Sep. App., Ex.3 at 3. Furthermore, the district
court retained jurisdiction “[t]o enable the parties to this
Judgment to apply to this Court at any time for such further
orders and directions as may be necessary or appropriate
for the construction or carrying out of this Judgment, for the
enforcement of compliance with the provisions contained
herein, and for the punishment of the violation of any such
provisions.” Id. at 4. The district court also provided:
“Application to enforce such provisions or to impose
punishment for any such violation may be presented to this
Court by any registered voter.” Id. The decree did not
address whether political considerations could be used in
hiring new employees—a matter that continued to be liti-
gated by the parties.
4 Nos. 03-1412 & 03-1436
3. 1983 Consent Decree
The litigation on the unresolved hiring issue continued
over the next decade. In September 1979, the district court
granted the plaintiffs’ motion for partial summary judgment
on their hiring claim. See Shakman v. Democratic Org. of Cook
County, 481 F. Supp. 1315 (N.D. Ill. 1979). The court stated
that the patronage hiring practices infringed upon the
plaintiffs’ rights as voters and candidates because they gave
the incumbent party an unfair advantage in elections. The
court then directed the parties to address the appropriate
form of relief.
On April 4, 1983, the district court entered an order en-
joining the defendants from conditioning hiring decisions
on an applicant’s political affiliation. Although the City
initially was bound by this order, it subsequently entered
into a second consent judgment on June 20, 1983 (“1983
Consent Decree”), with respect to the hiring issue.
The 1983 Consent Decree enjoined the City from “condi-
tioning, basing or affecting of employment with the City of
Chicago on political reasons or factors while maintaining
the ability of the elected officials of the City lawfully to
establish, manage and direct the policies and affairs of the
City.” Appellants’ Sep. App., Ex.4 at 2. The decree antici-
pated that the City would file, “not later than 120 days from
the date this Judgment becomes effective,” “a Plan of
Compliance to implement this Judgment.” Id. at 3. Finally,
it was clear that the 1972 Consent Decree remained in effect
and that the district court retained jurisdiction to ensure
“enforcement of compliance with the provisions contained
in the 1972 Consent Judgment and [the 1983] Judgment, and
for remedy for the violation of any of those provisions.” Id.
at 8. Indeed, the 1983 Consent Decree provided that “[a]p-
plication to enforce those provisions or to remedy any
Nos. 03-1412 & 03-1436 5
violation may be presented to this court by any registered
voter.” Id.
4. Plan of Compliance and Detailed Hiring Provisions
In 1984, the City issued its “Principles for Plan of
Compliance” (“PPC”) to implement the 1983 Consent Decree
as well as its “Detailed Hiring Provisions” (“DHP”). The
PPC applied to “hiring for all non-Exempt positions covered
by the Judgment.” Id., Ex.5 at 2. Central to the PPC was the
exclusion of politics from all hiring decisions except those
for exempt positions and the elimination of the effects of the
past patronage hiring system. The DHP applied to “all
hiring decisions concerning individuals who currently are
not employed by the City as well as to transfer, demotion,
promotion, and reclassification decisions involving current
City employees.” Id., Ex.6 at I-1. The DHP were amended in
1986 to provide that
[p]romotions from a position with a lower grade classi-
fication to a position with a higher grade classification,
whereby both positions are in the same job category,
shall be exempt from Public Advertising, Posting, and
Application and Screening procedures if the only cri-
terion that differentiates the higher classified position
from the lower classified position is the period of ser-
vice in the lower classified position.
R.16, Ex.F at II-8.
5. Shakman II Decision
Unlike the City of Chicago, several Cook County officials
did not agree to the 1983 Consent Decree but appealed the
district court’s partial summary judgment in favor of the
6 Nos. 03-1412 & 03-1436
plaintiffs. In 1987, this court issued its opinion in Shakman
v. Dunne, 829 F.2d 1387, 1399 (7th Cir. 1987) (“Shakman II”).
We first noted that “[t]his appeal raises only the constitu-
tionality of politically-motivated hiring practices without
any reference to the other patronage-based employment
practices—including the discharge scheme now forbidden
by the [1972] consent decree.” Id. at 1393 (citations omitted).
We also noted that significant changes had occurred since
the plaintiffs had filed the action back in 1969:
The case before us today is, from a factual viewpoint, a
very different case from the case set forth in the com-
plaint. The consent decree with respect to politically-
motivated discharges, has eliminated a significant por-
tion of the contentions that were originally presented in
the appellees’ complaint and that were before this court
during the earlier appeal in 1970, seventeen years
ago. . . . More importantly, we are confronted with a
significantly different legal landscape than the one that
confronted the district court at the time the complaint
was originally filed . . . . During these intervening years,
the Supreme Court has engaged in a thorough examina-
tion of “justiciability,” the limitations imposed on fed-
eral courts by the “case-and-controversy” provision of
article III.
Id. at 1392-93 (citations omitted; emphasis in original).
Although reconsideration of the plaintiffs’ standing usually
would be foreclosed by the “law of the case doctrine,” we
noted that the doctrine “ ‘was understandably crafted with
the course of ordinary litigation in mind,’ ” id. at 1393 (quot-
ing Arizona v. California, 460 U.S. 605, 618-19 (1983)), and
that “courts are significantly less constrained by the law of
the case doctrine with respect to jurisdictional questions,”
id. Our prior decision in Shakman I had noted that “the
Nos. 03-1412 & 03-1436 7
voter’s interest” asserted by the plaintiffs was entitled to
“constitutional protection”; however, we never had examined
the plaintiffs’ alleged injuries according to the current stand-
ing requirements—namely whether the plaintiffs had
suffered a “ ‘personal injury fairly traceable to the defendant’s
allegedly unlawful conduct and likely to be redressed by the
requested relief.’ ” Id. at 1394 (quoting Allen v. Wright, 468
U.S. 737, 751 (1984)). Thus, we examined, for the first time,
the plaintiffs’ claims against this standard.
We noted that, although the plaintiffs had asserted several
injuries, “the heart of the plaintiffs’ case [wa]s their conten-
tion that the hiring practices of the defendants violate[d] the
speech and associational rights of candidates and voters.” Id.
at 1395. Focusing on the requirement that the injury must be
“fairly traceable to the defendants’ activity,” we concluded
that the connection between the patronage hiring practices
and the dilution of the voter’s political voice was too
attenuated to meet the standing requirement:
For each citizen, many factors, many not capable of
articulation, will determine the nature and extent of that
person’s political activity. For those recruiting such
political workers, political incumbency has advantages
and disadvantages. In some political environments, a
patronage hiring policy by the incumbents may enjoy a
good deal of credibility with potential workers. Not
only may the incumbents be able to point to a successful
political track record, but they may also be able to
demonstrate their determination to implement such a
policy by their present actions. Moreover, in many
instances, although not always, the incumbent enjoys
certain natural advantages in communicating with the
citizenry. However, in other political environments,
incumbency may well be a ball and chain on the leg of
the candidate and the announcement of such a patron-
8 Nos. 03-1412 & 03-1436
age policy may, far from being an advantage, seal his
political doom. Indeed, it may be the challenger who
can attract workers with the promise that, once elected,
he will continue to seek the help of those who have sup-
ported him. We do not believe, therefore, that the
plaintiffs can assert, with the certainty required by the
case-and-controversy requirement, that the injury they
assert is “fairly traceable” to the actions of the defen-
dants that form the basis of their complaint.
Id. at 1397. Our holding, however, did not encompass all
voter challenges of any patronage practices; it was limited to
plaintiff’s standing to attack the constitutionality of the
defendants’ hiring practices. Our holding d[id] not ad-
dress the substantially different question of whether the
plaintiffs would have standing to attack the constitu-
tionality of the coerced political work demanded of
those already employed by the government as a condi-
tion of continued employment.
Id. at 1399 (emphasis in original).
6. Other Considerations
Several years after our decision in Shakman II, the
Supreme Court handed down its decision in Rutan v.
Republican Party of Illinois, 497 U.S. 62 (1990), in which it
addressed “whether the First Amendment’s proscription of
patronage dismissals recognized in Elrod v. Burns, 427 U.S.
347 (1976), and Branti v. Finkel, 445 U.S. 507 (1980), extends
to promotion, transfer, recall, or hiring decisions involving
public employment positions for which party affiliation is
not an appropriate requirement.” Rutan, 497 U.S. at 68(parallel citations omitted). Rutan did not speak to standing
requirements but made clear that basing hiring decisions on
Nos. 03-1412 & 03-1436 9
political patronage was impermissible. The Court held “that
promotions, transfers, and recalls after layoffs based on
political affiliation or support are an impermissible in-
fringement on the First Amendment rights of public em-
ployees.” Id. at 75. The Court determined that “[u]nder [its]
sustained precedent, conditioning hiring decisions on political
belief and association plainly constitutes an unconstitutional
condition, unless the government has a vital interest in
doing so.” Id. at 78.
In the wake of Rutan, the plaintiffs moved to reinstate the
district court’s April 4, 1983 judgment against the non-set-
tling defendants. In response, the non-settling Cook County
1
defendants eventually entered into a consent judgment
similar to that which the City had entered—the 1983 Consent
Decree—and also filed similar plans of compliance.
B. Present Litigation and District Court Proceedings
This appeal consists of two consolidated complaints filed
by Chicago police lieutenants against the City of Chicago. In
their complaint, the plaintiffs described the action as a “civil
action to enforce the judgment in Shakman vs. Democratic
Party of Cook County, Civil Action No. 69 C 2145.” R.55,
¶ 1. They alleged that they were “registered voters, resi-
dents of the City of Chicago who were police lieutenants
who applied for the position of Captain and who met the
eligibility requirements for selection as captain.” Id., ¶ 15.
The plaintiffs further claimed that they were denied promo-
tion to captain as a result of the City’s violation of the 1983
Consent Decree through the City’s failure to comply with
the requirements of the DHP. The plaintiffs sought various
1
See supra part I.A.5.
10 Nos. 03-1412 & 03-1436
forms of relief, including: (1) the issuance of a rule to show
cause “why defendant ought not be held in civil contempt
for failure to comply with the terms of the Shakman Decree,
Plan and Principles”; (2) a directive to the City to “adhere to
the provisions of the Shakman Decree, Principles and Plan
in all future selections for nonexempt positions”; and (3)
“relief to plaintiff and other persons who are found to have
sustained injury and damages as a result of the violations.”
Id. at 9.
The City moved to dismiss the complaints on the ground
that the plaintiffs “fail[ed] to allege any injury to their as-
sociational rights as voters and thus, lack Article III stand-
ing.” R.58 at 6. Specifically, the City maintained that,
“[a]lthough plaintiffs allege[d] that they are registered
voters, their claims [we]re subject to dismissal because they
d[id] not plead notice of an injury to their First Amendment
associational rights that is fairly traceable to the captain’s
promotions at issue in this case.” Id.
The district court agreed with the City. In its order
granting the motion to dismiss, the court first reviewed the
history of the Shakman litigation, the 1983 Consent Decree,
the PPC and the DHP. The district court then turned to the
plaintiffs’ allegations, which it described as follows:
Plaintiffs allege that as a direct and proximate result of
the actions of the Defendant, Plaintiffs sustained injury,
including lost wages and benefits because they were not
promoted to captain. In Count II, Plaintiffs seek a
petition for rule to show cause why Defendant ought
not be held in contempt of court for failing to comply
with the Shakman Decree, the [PPC], and the DHP.
R.64 at 4. The district court next addressed the City’s con-
tention that the plaintiffs lacked standing. The court noted
that the 1983 Consent Decree grants standing to enforce the
decree to any registered voter. In addition, the court noted
Nos. 03-1412 & 03-1436 11
that a party seeking to enforce the decree also must show
“an injury in fact, a causal connection between the injury
and the challenged conduct, and that its injury will be re-
dressed by a favorable decision.” R.64 at 5 (citing Plotkin v.
Ryan, 239 F.3d 882, 884 (7th Cir. 2001)). The court further
noted that “[p]laintiffs have the burden of establishing
standing, and each element of standing must be supported
‘by more than unadorned speculation.’ Plotkin, 239 F.3d at
885.” Id. The court then determined that the plaintiffs had
not met this burden; it explained:
In the instant case, Plaintiffs alleged that they are
registered voters who met the eligibility requirements
for selection as a captain in December 2000 and January
2001 but were not selected for such promotions. They
allege that the promotion process was in violation of the
Shakman Decree, the [PPC], and the DHP.
“Shakman prohibits only political considerations which
effect [sic] voter and candidate rights.” Shakman v. Democratic
Org. of Cook County, 356 F.Supp. 1241, 1248 (N.D. Ill.
1972); see also Herron v. City of Chicago, 619 F.Supp. 767,
773 (N.D. Ill. 1985) (Shakman judgment “enjoins the
defendants from hiring or refusing to hire employees
based on political considerations”). In the instant case,
Plaintiffs have not pled that the challenged promotion
practice adversely affected their rights as voters or
candidates. Furthermore, Plaintiffs do not allege that
political considerations were at the heart of the promo-
tion process. Instead, the Plaintiffs allege that they were
denied a promotion because certain procedures were
not followed. Accordingly, Plaintiffs have failed to es-
tablish an injury in fact to their rights as voters to bring
an action to enforce the Shakman Decree.
Id. at 5-6. Because the plaintiffs did not establish standing to
enforce the action, the district court granted the City’s
12 Nos. 03-1412 & 03-1436
2
motion to dismiss.
2
The court also noted that “the selection process that the
Plaintiffs dispute is contained in the [Collective Bargaining
Agreement],” which set forth a grievance and arbitration process.
Consequently, a civil enforcement action was an improper
method of resolving the dispute. R.64 at 6. With the exception of
this statement, the district court opinions disposing of the con-
solidated cases, 02 C 4300 and 01 C 0861, were the same.
The plaintiffs set forth three shortcomings with respect to the
district court’s determination that the plaintiffs’ claims are
governed by the Collective Bargaining Agreement. Specifically,
the plaintiffs demonstrate that this agreement could, at most,
cover the claims of Plaintiff O’Sullivan, that it is questionable
whether the agreement covers O’Sullivan given that the agreement
does not appear to be retroactive, and that the court failed to
consider whether the agreement bars the City from complying
with the 1983 Consent Decree. The City does not present any
serious counter-arguments in its brief in support of the district
court’s determination. In the absence of argument by the City,
and of any detailed explanation by the district court as to the
basis of its determination, we remand this portion of the district
court’s judgment as well.
In separate litigation arising in 1995, individuals challenged the
City’s hiring of employees in violation of the 1983 Consent
Decree. The plaintiffs filed a motion requesting the court to
address the threshold issue of whether the 1983 Consent Decree
applied to personal service contract workers and temporary
workers. After the court found the practice violated the 1983
Consent Decree, the City moved to vacate this ruling based on
the decision in Shakman II. After oral argument in this case, the
district court issued its order denying the motion to vacate. See
Shakman v. Democratic Org. of Cook County, No. 69 C 2145, 2004
WL 691872 (N.D. Ill. Mar. 30, 2004). The City appealed, and the
case is now pending in this court. See Shakman v. City of Chicago,
No. 04-2105.
Nos. 03-1412 & 03-1436 13
II
ANALYSIS
In this appeal, the plaintiffs submit that the district court
erred in determining that they lacked standing to enforce
the 1983 Consent Decree. They maintain that the issue of
voter standing had been fully litigated when the City agreed
to the 1983 Consent Decree; because the City took no further
action to challenge the standing of voters, the City cannot
now attack that decree for want of subject matter jurisdic-
tion. The City argues, however, that before the plaintiffs can
pursue their enforcement action, they must establish that
they meet constitutional standing requirements. The City
maintains that Shakman II makes it clear that voters do not
have standing to challenge patronage hiring and promo-
tional claims such as those that are the subject of the 1983
Consent Decree. Consequently, the City maintains, the
plaintiffs do not have the necessary standing to invoke the
power of the district court.
A. Standing
The power of the judiciary is confined by Article III of the
Constitution of the United States to “cases” and “controver-
sies.” U.S. Const. art. III, § 2; see, e.g., Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). As the Supreme Court has
explained, through the pen of Chief Justice Warren in Flast
v. Cohen, 392 U.S. 83, 95 (1968), this case and controversy
requirement is often referred to as the concept of jus-
ticiability. Justiciability thus sets apart “cases” and “contro-
versies”—disputes that “are appropriately resolved through
the judicial process”—from those situations that are not
properly resolved through the exercise of judicial authority.
Whitmore v. Arkansas, 495 U.S. 149, 155 (1990).
14 Nos. 03-1412 & 03-1436
Standing is an aspect of justiciability. “The ‘gist of the
question of standing’ is whether the party seeking relief has
‘alleged such a personal stake in the controversy as to assure
that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for
illumination of difficult constitutional questions.’ ” Flast, 392
U.S. at 99 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
When determining standing, the emphasis “is on whether
the party invoking federal court jurisdiction has ‘a personal
stake in the outcome of the controversy,’ and whether the
dispute touches upon the ‘legal relations of the parties
having adverse legal interests.’ ” Id. at 101 (quoting Baker,
369 U.S. at 204; Aetna Life Ins. Co. v. Haworth, 300 U.S. 227,
240-41 (1937)).
“Though some of its elements express merely prudential
considerations that are part of judicial self-government, the
core component of standing is an essential and unchanging
part of the case-or-controversy requirement of Article III.”
Lujan, 504 U.S. at 560. Any plaintiff seeking to invoke the
power of a federal court bears the burden of demonstrating:
(1) an “injury in fact—an invasion of a legally protected
interest which is (a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical”; (2)
a causal connection between the injury and the conduct
complained of, that is, the injury is fairly traceable to the
challenged action of the defendant, not the result of “the
independent action of some third party not before the
court”; and (3) a favorable decision likely will redress the
injury. Id. at 560-61 (internal quotation marks, citations and
footnotes omitted).
In addition to constitutional standing requirements, the
[s]tanding doctrine embraces several judicially imposed
limits on the exercise of federal jurisdiction, such as the
general prohibition on a litigant’s raising another per-
Nos. 03-1412 & 03-1436 15
son’s legal rights, the rule barring adjudication of gen-
eralized grievances more appropriately addressed in the
representative branches, and the requirement that a
plaintiff’s complaint fall within the zone of interests
protected by the law invoked.
Allen v. Wright, 468 U.S. 737, 751 (1984). In other contexts,
the Supreme Court and the courts of appeals have noted
that prudential standing considerations often are especially
important when individuals come to the federal courts to
challenge the actions of a State. In those cases, federal courts
have the added responsibility to ensure that their actions do
not strain unnecessarily the principles of federalism. Cf.
Arizonans for Official English v. Arizona, 520 U.S. 43, 75 (1997)
(stating that “[w]hen anticipatory relief is sought in federal
court against a state statute, respect for the place of the
States in our federal system calls for close consideration of
that core question”—“[i]s this conflict really necessary?”).
For instance, concerns for federalism have been articulated
frequently when state taxpayers have challenged an expendi-
ture by the State. One of our sister circuits has explained
that, in these situations, the separation of powers concern
that animates the bar to generalized taxpayer suits
has a counterpoint which should be considered when a
state taxpayer seeks to have a federal court enjoin the
appropriation and spending activities of a state govern-
ment. Considerations of federalism should signal the
same caution in these circumstances as concern for
preservation of the proper separation of powers in an
“all federal” action.
Taub v. Kentucky, 842 F.2d 912, 919 (6th Cir. 1988). In short,
before permitting a plaintiff to challenge state governmental
activity, the federal court has a duty to ensure, with careful
attention, that the parties before it have the requisite
concrete adverseness that will ensure full presentation of the
16 Nos. 03-1412 & 03-1436
issues and avoid unnecessary intrusion into state govern-
mental processes.
“Together, the constitutional and prudential components
of standing ensure that plaintiffs possess ‘such a personal
stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumina-
tion of difficult constitutional questions.’ ” Oregon Advocacy
Ctr. v. Mink, 322 F.3d 1101, 1109 (9th Cir. 2003) (quoting
Baker, 369 U.S. at 204).
Recent cases illustrate how the Supreme Court and the
courts of appeals have applied the concept of standing to
ensure that the adversarial system works at its optimal
level. In Lujan, for instance, members of wildlife conserva-
tion organizations challenged the Secretary of the Interior’s
promulgation of a regulation under the Endangered Species
Act. The plaintiffs’ asserted injury was “that the lack of
consultation with respect to certain funded activities abroad
‘increase[ed] the rate of extinction of endangered and threat-
ened species.’ ” Lujan, 504 U.S. at 562 (quoting the plaintiffs’
complaint). The Supreme Court held that, in order to es-
tablish standing, it was not enough for the organizations’
members to have a “special interest” in wildlife conserva-
tion; instead, the challenged regulation had to affect “directly”
one of the organization’s members, apart from the stated
special interest. Id. at 563. The Court stated that “[i]t goes
beyond the limit, however, and into pure speculation and
fantasy, to say that anyone who observes or works with an
endangered species, anywhere in the world, is appreciably
harmed by a single project affecting some portion of that
species with which he has no more specific connection.” Id.
at 567. The Court also held that the provision of the Endan-
gered Species Act that allowed for citizen enforcement was
not a substitute for constitutional standing requirements:
Nos. 03-1412 & 03-1436 17
“We have consistently held that a plaintiff raising only a
generally available grievance about government— claiming
only harm to his and every citizen’s interest in proper
application of the Constitution and laws, and seeking relief
that no more directly and tangibly benefits him than it does
the public at large—does not state an Article III case or
controversy.” Id. at 573-74.
The Court also has addressed voter standing to challenge
governmental actions that impact the political process. In
United States v. Hays, 515 U.S. 737 (1995), for example, voters
in Louisiana brought an equal protection challenge to the
State’s redistricting plan. Before it could address the merits
of the plaintiffs’ claims, the Court was required to consider
the plaintiffs’ standing. The Court noted that, in light of the
principles set forth in Lujan, “we have repeatedly refused to
recognize a generalized grievance against allegedly illegal
governmental conduct as sufficient for standing to invoke the
federal judicial power” and that this rule applies “with as
much force in the equal protection context as in any other.”
Id. at 743. The Court explained that only those individuals
who claimed that they were “personally denied equal
treatment” were in a position to challenge allegedly uncon-
stitutional governmental action. Id. at 744 (internal quota-
tion marks and citations omitted). Consequently, the Court
had to “reject appellees’ position that anybody in the State
has a claim” if racial gerrymandering allegedly has oc-
curred. Id. (internal quotation marks and citation omitted).
Instead, the Court looked to whether the plaintiff had
endured an individualized harm related to racial classifica-
tion:
Where a plaintiff resides in a racially gerrymandered
district, . . . the plaintiff has been denied equal treatment
because of the legislature’s reliance on racial criteria,
and therefore has standing to challenge the legislature’s
18 Nos. 03-1412 & 03-1436
action. Voters in such districts may suffer the special
representational harms racial classifications can cause in
the voting context. On the other hand, where a plaintiff
does not live in such a district, he or she does not suffer
those special harms, and any inference that the plaintiff
has personally been subjected to a racial classification
would not be justified absent specific evidence tending
to support that inference. Unless such evidence is
present, that plaintiff would be asserting only a general-
ized grievance against governmental conduct of which
he or she does not approve.
Id. at 744-45 (citations omitted). Thus, both Lujan and Hays
emphasize that individuals challenging governmental ac-
tions must have suffered a direct injury as a result of the
allegedly unconstitutional action.
Our own cases examining voter standing in political
patronage cases illustrate the other requirements set forth in
Lujan—that the injury be fairly traceable to the allegedly
illegal action and that the courts be able to redress the
claimed injury. As we noted earlier, in Shakman II this court
confronted the claim by Cook County officials that voters
did not have standing to challenge political hiring decisions.
When we evaluated the connection between the injury as-
serted by the voters—the dilution of their voting strength—
to the asserted illegal conduct—political patronage hiring—
we concluded that the injury was not fairly traceable to the
illegal conduct. We explained:
For each citizen, many factors, many not capable of
articulation, will determine the nature and extent of that
person’s political activity. For those recruiting such
political workers, political incumbency has advantages
and disadvantages. In some political environments, a
patronage hiring policy by the incumbents may enjoy a
good deal of credibility with potential workers. Not
Nos. 03-1412 & 03-1436 19
only may the incumbents be able to point to a successful
political track record, but they may also be able to
demonstrate their determination to implement such a
policy by their present actions. Moreover, in many in-
stances, although not always, the incumbent enjoys
certain natural advantages in communicating with the
citizenry. However, in other political environments,
incumbency may well be a ball and chain on the leg of
the candidate and the announcement of such a patron-
age policy may, far from being an advantage, seal his
political doom. Indeed, it may be the challenger who
can attract workers with the promise that, once elected,
he will continue to seek the help of those who have sup-
ported him. We do not believe, therefore, that the
plaintiffs can assert, with the certainty required by the
case-and-controversy requirement, that the injury they
assert is “fairly traceable” to the actions of the defen-
dants that form the basis of their complaint.
Shakman II, 829 F.2d at 1397.
Later, in Plotkin, this court determined that voters did not
have standing to pursue an injunction to bar governmental
officials from receiving bribes that funded political cam-
paigns. We stated:
The alleged injury-in-fact for these claims is that
defendants’ illegal conduct skewed the election results
in favor of George Ryan and, in the process, diluted the
impact of their votes. Plaintiffs concede that they cannot
have the results of the 1998 gubernatorial election set
aside by this suit, but ask for injunctive relief, findings
of contempt, and the imposition of fines. . . .
. . . Plaintiffs make no allegations that the bribes-for-
commercial drivers’-licenses scheme is continuing under
Secretary White’s administration, contending only that
20 Nos. 03-1412 & 03-1436
“[t]here exists in the Secretary of State’s office a deep-
seated culture and policy or custom of intertwining and
requiring coerced partisan political work together with
the official duties of the office,” and as a result, “[t]here
is a substantial likelihood that without remedial steps
being taken that such or similar unlawful conduct will
continue.” These allegations are purely speculative.
Plotkin, 239 F.3d at 884-85 (internal citations omitted).
At its constitutional core, therefore, standing requires that
the parties before the court must allege injury fairly trace-
able to the alleged illegal conduct of the defendant that the
court may redress. This requirement necessitates an inquiry
into the nature of the plaintiffs’ injury, the connection
between the injury and the complained-of actions and the
scope of remedies available to the court.
Moreover, from a prudential standpoint, courts must pay
particularly close attention to these requirements when they
are asked to restrain the action of a public entity. When a
plaintiff seeks to enjoin state governmental activity, “[c]ase-
or-controversy considerations . . . ‘obviously shade into those
determining whether the complaint states a sound basis for
equitable relief.’ The latter set of considerations should there-
fore inform our judgment about whether [the plaintiffs] have
standing.” Allen, 468 U.S. at 760-61 (quoting O’Shea v.
Littleton, 414 U.S. 488, 499 (1974)). And, voters, taxpayers or
residents voicing generalized complaints are not sufficient
to justify the federal courts’ intrusion into the workings of
the States.
B. Finality
The plaintiffs in the present action acknowledge the re-
quirements for standing. They maintain, however, that these
standards are largely irrelevant to their action because
standing for this action is provided by the 1983 Consent
Nos. 03-1412 & 03-1436 21
Decree. In their view, the City’s failure to challenge the
jurisdictional determination of the district court on which
the 1983 Consent Decree was based is fatal to the City’s
current claim that the court lacks jurisdiction to enforce the
decree. The plaintiffs’ argument rests largely on a line of
cases originating with Swift & Co. v. United States, 276 U.S.
311 (1928) (“Swift I”), in which the Supreme Court and the
courts of appeals have refused to permit collateral attacks
on the subject matter jurisdiction of the court.
One of the first cases to speak to attempts to relitigate
subject matter jurisdiction in a collateral proceeding, as
noted above, was Swift I. In Swift I, the Government had
instituted an antitrust action against five leading meat-pack-
ing companies. In their answers, the defendants denied the
material allegations of the complaint. Along with the an-
swers, the defendants filed a stipulation “which provided
that the court might, without finding any fact, enter the
proposed decree therein set forth.” Id. at 320. “The decree
declared among other things, that the court had jurisdiction
of the persons and the subject-matter, and ‘that the alle-
gations of the petitioner state a cause of action against the
defendants under the provisions of the Sherman Anti-Trust
Act and supplementary legislation.’ ” Id. (quoting the pro-
posed decree). The court entered the proposed decree. Only
two years later, parties to the decree moved to vacate the
consent decree on the ground that it was void for reasons
including the district court’s lack of jurisdiction. Specifi-
cally, the defendants contended that there was “no case or
controversy within the meaning of section 2 of article 3 of
the Constitution.” Id. at 325. The Court rejected this argu-
ment:
The defendants concede that there was a case at the time
when the government filed its petition and the defen-
22 Nos. 03-1412 & 03-1436
dants their answers; but they insist that the controversy
had ceased before the decree was entered. . . . The
argument ignores the fact that a suit for an injunction
deals primarily, not with past violations, but with
threatened future ones; and that an injunction may issue
to prevent future wrong, although no right has yet been
violated. Moreover, the objection is one which is not
open on a motion to vacate. The court had jurisdiction
both of the general subject-matter-enforcement of the
Anti-Trust Act—and of the parties. If it erred in decid-
ing that there was a case or controversy, the error is one
which could have been corrected only by an appeal or
by a bill of review. On a motion to vacate, the determi-
nation by the Supreme Court of the District that a case
or controversy existed is not open to attack.
Id. at 326 (citations omitted).
Two other Supreme Court cases followed closely on the
heels of Swift I and, although arising in different factual
contexts, reiterated Swift I’s general holding. In Stoll v.
Gottlieb, 305 U.S. 165 (1938), the Court rejected a collateral
attack on the district court’s jurisdiction in adjudicating a
bankruptcy. At issue in Stoll was the validity of a release of
a guarantee granted by the district court acting pursuant to
the authority of the Bankruptcy Act of 1934. The release
later was challenged and, eventually, upheld by the Supreme
Court against attack. The Court stated:
Where adversary parties appear, a court must have the
power to determine whether or not it has jurisdiction of
the person of a litigant, or whether its geographical
jurisdiction covers the place of the occurrence under
consideration. . . . An erroneous affirmative conclusion
as to the jurisdiction does not in any proper sense en-
large the jurisdiction of the court until passed upon by
the court of last resort, and even then the jurisdiction
becomes enlarged only from the necessity of having a
Nos. 03-1412 & 03-1436 23
judicial determination of the jurisdiction over the sub-
ject matter. When an erroneous judgment, whether from
the court of first instance or from the court of final
resort, is pleaded in another court or another jurisdic-
tion the question is whether the former judgment is res
judicata. After a Federal court has decided the question
of the jurisdiction over the parties as a contested issue,
the court in which the plea of res judicata is made has
not the power to inquire again into that jurisdictional
fact. We see no reason why a court in the absence of an
allegation of fraud in obtaining the judgment, should
examine again the question whether the court making
the earlier determination on an actual contest over ju-
risdiction between the parties, did have jurisdiction of
the subject matter of the litigation. In this case the order
upon the petition to vacate the confirmation settled the
contest over jurisdiction.
Id. at 171-72 (footnotes omitted).
Similarly, in Chicot County Drainage District v. Baxter State
Bank, 308 U.S. 371 (1940), a holder of a municipal bond
sought to challenge a reorganization decree on the ground
that the decree was issued pursuant to a statute that later
was declared invalid by another district court. The Supreme
Court characterized the bond-holders’ jurisdictional argu-
ment as “untenable.” Id. at 376. The Court explained:
The argument is pressed that the District Court was
sitting as a court of bankruptcy, with the limited ju-
risdiction conferred by statute, and that, as the statute
was later declared to be invalid, the District Court was
without jurisdiction to entertain the proceeding and
hence its decree is open to collateral attack. We think the
argument untenable. The lower federal courts are all
courts of limited jurisdiction, that is, with only the
jurisdiction which Congress has prescribed. But none
24 Nos. 03-1412 & 03-1436
the less they are courts with authority, when parties are
brought before them in accordance with the require-
ments of due process, to determine whether or not they
have jurisdiction to entertain the cause and for this
purpose to construe and apply the statute under which
they are asked to act. Their determinations of such ques-
tions, while open to direct review, may not be assailed
collaterally.
. . . The court has the authority to pass upon its own
jurisdiction and its decree sustaining jurisdiction against
attack, while open to direct review, is res judicata in a
collateral action.
Id. at 376-77 (citations omitted).
Summarizing these, and other more recent cases, one
treatise has concluded that “it seems clear that a federal
court judgment is binding notwithstanding a simple lack of
subject matter jurisdiction, without regard to whether the
jurisdictional question was litigated or appealed.” 18A
Charles Allen Wright & Arthur R. Miller, Federal Practice and
Procedure § 4428 at 23 (2d ed. 2002). Our own court has
phrased the rule accordingly: “After a case has become final
by exhaustion of all appellate remedies, only an egregious
want of jurisdiction will allow the judgment to be undone
by someone who, having participated in the case, cannot
complain that his rights were infringed without his knowl-
edge.” In re Factor VIII, 159 F.3d 1016, 1019 (7th Cir. 1998).
C. Modification of the Decree
The City’s argument, however, encompasses more than
simply an attack on the district court’s subject matter ju-
risdiction over the plaintiffs at the time the 1983 decree was
entered. The City primarily argues that it is not “attacking
the 1983 decree but rather the plaintiffs’ ability to invoke
federal jurisdiction,” Appellee’s Br. at 36-37, specifically, the
Nos. 03-1412 & 03-1436 25
plaintiffs’ lack of standing to bring this enforcement action.
In support of this argument, the City draws upon cases
discussing the nature of, or proposed modifications to,
consent decrees. We review these cases below.
One of the cases on which the City relies most heavily is
Local Number 93, International Association of Firefighters, AFL-
CIO v. City of Cleveland, 478 U.S. 501 (1986). In that case, the
union representing Cleveland firefighters objected to a con-
sent decree that obligated the City of Cleveland to adopt
race-conscious measures to correct past discrimination. The
Supreme Court concluded that the “voluntary adoption in
a consent decree of race-conscious relief that may benefit
nonvictims” did not violate the Civil Rights Act of 1964. Id.
at 525. Similarly, the Court rejected the notion that there was
some “independent judicial canon or ‘common law’ of
consent decrees” that prevented courts from entering a
consent decree that a court itself could not order had the
matter gone to trial. Id. The Court explained that
a federal court is more than “a recorder of contracts”
from whom parties can purchase injunctions; it is “an
organ of government constituted to make judicial deci-
sions. . . .” 1B J. Moore, J. Lucas, & T. Currier, Moore’s
Federal Practice ¶ 0.409[5], p. 331 (1984). . . . Accordingly,
a consent decree must spring from and serve to resolve
a dispute within the court’s subject-matter jurisdiction.
Furthermore, consistent with this requirement, the
consent decree must “com[e] within the general scope
of the case made by the pleadings,” Pacific R. Co. v.
Ketchum, 11 Otto 289, 297, 101 U.S. 289, 297, 25 L.Ed. 932(1880), and must further the objectives of the law upon
which the complaint was based. However, in addition
to the law which forms the basis of the claim, the par-
ties’ consent animates the legal force of a consent
decree. . . . Therefore, a federal court is not necessarily
26 Nos. 03-1412 & 03-1436
barred from entering a consent decree merely because
the decree provides broader relief than the court could
have awarded after a trial.
Id. at 525 (citations omitted).
In support of its argument that the plaintiffs lacked stand-
ing, the City also draws upon cases involving the modifica-
tion of consent decrees. We begin our discussion by focusing
on an opinion that concerned the continuation of the decree
at issue in Swift I. After unsuccessfully attempting to vacate
the consent decree to which the defendant meat-packers
voluntarily had entered, a few of the defendants moved to
modify the decree. See United States v. Swift & Co., 286 U.S.
106, 112 (1932) (“Swift II”). The Supreme Court, although it
had been firm in its discussion of the ability to relitigate
jurisdiction, readily acknowledged the power of the courts
to modify a decree: “We are not doubtful of the power of a
court of equity to modify an injunction in adaptation to
changed conditions, though it was entered by consent.” Id.
at 114. Indeed, “[p]ower to modify the decree was reserved
by its very terms, and so from the beginning went hand in
hand with its restraints. If the reservation had been omitted,
power there still would be by force of principles inherent in
the jurisdiction of the chancery.” Id. The critical consider-
ation for the Court was whether need for a change existed:
A continuing decree of injunction directed to events to
come is subject always to adaptation as events may
shape the need. The distinction is between restraints
that give protection to rights fully accrued upon facts so
nearly permanent as to be substantially impervious to
change, and those that involve the supervision of
changing conduct or conditions and are thus provi-
sional and tentative. The result is all one whether the
decree has been entered after litigation or by consent. In
either event, a court does not abdicate its power to
Nos. 03-1412 & 03-1436 27
revoke or modify its mandate, if satisfied that what it
has been doing has been turned through changing cir-
cumstances into an instrument of wrong. We reject the
argument for the interveners that a decree entered upon
consent is to be treated as a contract and not as a
judicial act. . . . The consent is to be read as directed
toward events as they then were. It was not an abandon-
ment of the right to exact revision in the future, if re-
vision should become necessary in adaptation to events
to be.
Id. at 114-15 (citations omitted). Despite this reference to
flexibility, however, the Court concluded that “[n]othing
less than a clear showing of grievous wrong evoked by new
and unforeseen conditions should lead us to change what
was decreed after years of litigation with the consent of all
concerned.” Id. at 119.
Later cases, however, have warned that this rather
intransigent language must be read in the broader factual
context presented by the Swift II case: “Our decisions since
Swift [II] reinforce the conclusion that the ‘grievous wrong’
language of Swift [II] was not intended to take on a talis-
manic quality, warding off virtually all efforts to modify
consent decrees.” Rufo v. Inmates of the Suffolk County Jail,
502 U.S. 367, 380 (1992). Swift II, the Court explained,
“pointedly distinguished the facts of that case from one in
which genuine changes required modification of a consent
decree.” Id. at 379. Indeed, in Rufo the Court noted that the
standard for modification of consent decrees, now set forth
3
in Federal Rule of Civil Procedure 60(b), is a “flexible” one.
3
Rule 60(b) provides, in relevant part:
On motion and upon such terms as are just, the court may
(continued...)
28 Nos. 03-1412 & 03-1436
It further explained why such flexibility was necessary:
The upsurge in institutional reform litigation since Brown
v. Board of Education, 347 U.S. 483 (1955), has made the
ability of a district court to modify a decree in response
to changed circumstances all the more important. Be-
cause such decrees often remain in place for extended
periods of time, the likelihood of significant changes
occurring during the life of the decree is increased.
Id. at 380. Furthermore, the Court noted that “the public
interest is a particularly significant reason for applying a
flexible modification standard in institutional reform liti-
gation because such decrees ‘reach beyond the parties in-
volved directly in the suit and impact on the public’s right
to the sound and efficient operation of its institutions.’ ” Id.
at 381 (quoting Heath v. DeCourcy, 888 F.2d 1105, 1109 (6th
Cir. 1989)). Thus, a party seeking modification of a consent
decree does not have to prove a “grievous” wrong of the
kind required in Swift; the party only “bears the burden of
establishing that a significant change in circumstances
warrants revision of the decree.” Id. at 383.
This initial burden may be met “by showing either a sig-
nificant change either in factual conditions or in law.” Id. at
384. “While a decision that clarifies the law will not, in and
of itself, provide a basis for modifying a decree, it could
3
(...continued)
relieve a party or a party’s legal representative from a final
judgment, order, or proceeding for the following rea-
sons: . . . (5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has
been reversed or otherwise vacated, or it is no longer equit-
able that the judgment should have prospective applica-
tion . . . .
Nos. 03-1412 & 03-1436 29
constitute a change in circumstances that would support
modification if the parties had based their agreement on a
misunderstanding of the governing law.” Id. at 390.
If the moving party meets this standard, a district court
should consider whether the proposed modification is “suit-
ably tailored to the changed circumstance.” Id. at 383. A pro-
posed modification, the Court stated, “must not create or
perpetuate a constitutional violation.” Id. at 391. However,
neither should a court “strive to rewrite a consent decree so
that it conforms to the constitutional floor”; instead, “the
focus should be on whether the proposed modification is
tailored to resolve the problems created by the change in
circumstances.” Id. Within these constraints, due deference
must be given to the local bodies that implement the decree
as well as administer the laws for the common good:
[T]he public interest and “[c]onsiderations based on the
allocation of powers within our federal system,” [Board
of Education of Oklahoma City Public Schools v. Dowell, 498
U.S. 237, 248 (1991)], require that the district court defer
to local government administrators, who have the
“primary responsibility for elucidating, assessing, and
solving” the problems of institutional reform, to resolve
the intricacies of implementing a decree modification.
Brown v. Board of Education, 349 U.S. 294, 299 (1955).
Although state and local officers in charge of institu-
tional litigation may agree to do more than that which
is minimally required by the Constitution to settle a case
and avoid further litigation, a court should surely keep
the public interest in mind in ruling on a request to
modify based on a change in conditions making it
substantially more onerous to abide by the decree. To
refuse modification of a decree is to bind all future offi-
cers of the State, regardless of their view of the necessity
of relief from one or more provisions of a decree that
30 Nos. 03-1412 & 03-1436
might not have been entered had the matter been
litigated to its conclusion. . . . Financial constraints may
not be used to justify the creation or perpetuation of
constitutional violations, but they are a legitimate con-
cern of government defendants in institutional reform
litigation and therefore are appropriately considered in
tailoring a consent decree modification.
Id. at 392-93 (citations, parallel citations and footnote
omitted).
The Court then summarized its holding:
[T]he Swift “grievous wrong” standard does not apply
to requests to modify consent decrees stemming from
institutional reform litigation. Under the flexible stand-
ard we adopt today, a party seeking modification of a
consent decree must establish that a significant change
in facts or law warrants revision of the decree and that
the proposed modification is suitably tailored to the
changed circumstance. . . .
4
Id. at 393.
4
The plaintiffs suggest that the Supreme Court’s decision in
Kokkonen v. Guardian Life Insurance Company of America, 511 U.S.
375 (1994), somehow increases a party’s burden in seeking modi-
fication of a consent decree pursuant to Rule 60(b). We disagree.
Kokkonen concerned an attempt to enforce a settlement agreement
between two private parties. The terms of the agreement were not
entered as part of a consent decree:
[T]he only order here was that the suit be dismissed, a dis-
position that is in no way flouted or imperiled by the alleged
breach of the settlement agreement. The situation would be
quite different if the parties’ obligation to comply with the
terms of the settlement agreement had been made part of the
(continued...)
Nos. 03-1412 & 03-1436 31
We have had occasion to apply the standards set forth in
Rufo to cases that have come before this court. In Evans v.
City of Chicago, 10 F.3d 474 (7th Cir. 1993) (en banc), we con-
sidered a consent decree that required the City of Chicago
to pay its tort judgments in a particular sequence. The City
moved to vacate that decree pursuant to Rule 60(b). A
plurality of the en banc court believed that the outcome of
the case was dictated by the public nature of the litigation.
The plurality explained that, when courts are asked to
modify a consent decree involving a governmental entity,
they
are bound by principles of federalism (and by the
fundamental differences between judicial and political
branches of government) to preserve the maximum lee-
way for democratic governance. Over the last decade a
series of decisions in this circuit has emphasized the
district court’s responsibility to identify the rule of
federal law supporting a consent decree binding the
political arms of government, and the corresponding
obligation to permit new public officials to set their own
policy within the limits established by federal law.
4
(...continued)
order of dismissal—either by separate provision (such as a
provision “retaining jurisdiction” over the settlement
agreement) or by incorporating the terms of the settlement
agreement in the order. In that event a breach of the agree-
ment would be a violation of the order, and ancillary
jurisdiction to enforce the agreement would therefore exist.
That, however, was not the case here. The judge’s mere
awareness and approval of the terms of the settlement
agreement do not suffice to make them part of his order.
Id. at 380-81. Unlike the situation in Kokkenen, the 1983 Consent
Decree was entered as the judgment of the court and also spe-
cifically provided for continuing enforcement jurisdiction for the
district court.
32 Nos. 03-1412 & 03-1436
Id. at 479. The plurality then concluded that
[a]ll of these cases illustrate the principle we recognize
today: entry and continued enforcement of a consent
decree regulating the operation of a governmental body
depend on the existence of a substantial claim under
federal law. Unless there is such a claim, the consent
decree is no more than a contract, whose enforcement
cannot be supported by the diversity jurisdiction and
that has in court no more force than it would have
outside the court.
5
Id. at 480.
Not long after Evans, we decided two other cases pertinent
to the present discussion—Komyatti v. Bayh, 96 F.3d 955 (7th
Cir. 1996), and David B. v. McDonald, 116 F.3d 1146 (7th Cir.
1997). In Komyatti, Indiana prisoners filed a class action
against state prison officials in which they alleged that
certain conditions of their confinement violated the Consti-
tution. The parties negotiated a settlement, “which, by
incorporating an Indiana statutory provision, accord[ed]
prisoners . . . certain procedural protections, including the
availability of a ‘lay advocate,’ during the disciplinary pro-
5
One member of the court, concurring in the judgment, stated
that,
[f]or the present, it is sufficient to conclude that this court’s
decision in Evans v. City of Chicago, 873 F.2d 1007 (7th Cir.
1989) (Evans II), changed the prevailing law to such a degree
as to make further enforcement of the consent decree by the
district court inappropriate under the standards set forth by
the Supreme Court in Rufo v. Inmates of the Suffolk County
Jail . . . .
Evans v. City of Chicago, 10 F.3d 474, 483 (1993) (Ripple, J., con-
curring).
Nos. 03-1412 & 03-1436 33
cess.” Komyatti, 96 F.3d at 956. Two years later, prisoners
filed a motion to hold the state in contempt for violating the
decree. The district court refused to enforce the provisions
of the consent decree because it believed that the decree
required the State to comply with state law in violation of
the Eleventh Amendment. Id.This court disagreed with the district court that enforce-
ment of the decree created an Eleventh Amendment prob-
lem. Nevertheless, the court acknowledged that “[t]here
may indeed be instances when significant factual or legal
changes make it inequitable for a court to continue to en-
force a settlement decree. When such circumstances occur,
the parties may . . . seek an alteration in the terms of the
consent decree pursuant to Federal Rule of Civil Procedure
60(b)(5).” Id. at 962 (footnote omitted). We identified the
specific errors made by the district court and gave it
detailed instructions to be followed on remand:
The district court erred in several respects. First, it
should not have held that the proper course for the state
officials was to ignore the provision with impunity. The
appropriate course . . . would have been to seek an
alteration of the decree from the district court. Secondly,
the district court assumed that the court could not
retain, and enforce through its contempt power, any
provision of the consent decree that could not be
characterized as required by the Constitution itself. In
this respect, it failed to recognize that a federal consent
decree can contain a provision not explicitly required by
the Constitution as long as the criteria set forth in
Firefighters are met. The mere congruence of the selected
terms with a provision of state law does not, standing
alone, render the consent decree beyond the authority
of the federal court. Rather, the selection of that term
must be measured against the criteria of Firefighters. “If
34 Nos. 03-1412 & 03-1436
a federal court can validly enter a consent decree, it can
surely enforce that decree.” If intervening legal or
factual changes make enforcement inequitable, Rule 60
provides an effective remedy.
Id. at 963-64 (quoting Kozlowski v. Coughlin, 871 F.2d 241, 244
(2d Cir. 1989); internal citations and footnote omitted).
Finally, in David B., this court again discussed the stand-
ard for modifying a consent decree. In that case, the heads
of three Illinois agencies had signed a consent decree prom-
ising to provide “appropriate” services to the state’s youth
that were in need of “specialized services.” David B., 116
F.3d at 1147. Over a decade later, “the legislature of Illinois
enacted a statute curtailing” the authority of one of the
agencies “to provide services to children over the age of 13
who ha[d] been adjudicated ‘delinquent.’ ” Id. The agency
perceived these as inconsistent obligations and petitioned
the court “to be relived of any duty to provide services to
delinquents over the age of 13.” Id. The district court refused
to modify the decree on the ground that there had not been
a change in federal law that rendered the decree inequitable.
We reversed.
We noted initially that it might be possible to reconcile the
decree and the statute. However, assuming that the decree
required the agency “to take custody of some persons over
the age of 13 who have been adjudicated delinquent,”
“[t]hen the decree should be modified to eliminate the
conflict between its requirements and the new statute.” Id.
at 1148-49. We stated that, in Rufo, on which the district
court had relied, “[t]he Court did not distinguish between
legal and factual circumstances, or between state and federal
law; change in any of these things may justify a modifica-
tion under Fed. R. Civ. P. 60(b)(5).” Id. at 1149. Thus, the
change in state law certainly could justify the modification
sought.
Nos. 03-1412 & 03-1436 35
We then turned to the task of the district court on remand.
We noted that our past cases had emphasized that consent
decrees must be based on substantial federal claims, and,
although the lack of such a claim “does not permit a party
to disregard the decree, . . . it does justify modification or
vacatur.” Id. at 1150 (citing Komyatti, 96 F.3d at 962-63). The
court instructed the district court that
[i]t must either construe or modify the decree forthwith
to permit Illinois to reallocate tasks among its agencies
and to reduce the services offered to persons adjudicated
delinquent. Then it must determine whether a sub-
stantial federal claim supports the decree as a whole;
if not, the entire decree must be lifted and the task of
shaping public policy be restored to persons today hold-
ing political office—subject only to whatever limitations
federal law and the Supremacy Clause now place on the
operation of the state’s social-welfare system.
Id.Our discussion of modification and enforcement of con-
sent decrees would not be complete without mention of
Frew v. Hawkins, 124 S. Ct. 899 (2004), handed down after
arguments were heard in the present case. In Frew, the Court
considered “whether the Eleventh Amendment bars enforce-
ment of a federal consent decree entered into by state officials.”
124 S. Ct. at 901 (emphasis added). Specifically, state offi-
cials argued that “a federal court should not enforce a
consent decree arising from an Ex parte Young suit unless the
court first identifies, at the enforcement stage, a violation of
federal law.” Id. at 904. The Court rejected this argument
and held that the Eleventh Amendment does not act as a bar
to an enforcement action to a consent decree the initial entry
of which was consistent with Ex parte Young, 209 U.S. 123(1908), and Firefighters. The Court also commented on the
state officials’ fear “that enforcement of consent decrees
36 Nos. 03-1412 & 03-1436
c[ould] undermine the sovereign interests and accountabil-
ity of state governments.” Id. at 905. The Court acknowl-
edged that
[i]f not limited to reasonable and necessary implementa-
tions of federal law, remedies outlined in consent
decrees involving state officeholders may improperly
deprive future officials of their designated legislative
and executive powers. They may also lead to federal
court oversight of state programs for long periods of
time even absent an ongoing violation of federal law.
Id. In such circumstances, the Court stated, the States are not
without remedy; it explained:
When a suit under Ex parte Young requires a detailed
order to ensure compliance with a decree for prospec-
tive relief, and the decree in effect mandates the State,
through its named officials, to administer a significant
federal program, principles of federalism require that
state officials with front-line responsibility for adminis-
tering the program be given latitude and substantial
discretion.
The federal court must exercise its equitable powers
to ensure that when the objects of the decree have been
attained, responsibility for discharging the State’s obli-
gations is returned promptly to the State and its offi-
cials. As public servants, the officials of the State must
be presumed to have a high degree of competence in
deciding how best to discharge their governmental re-
sponsibilities. A State, in the ordinary course, depends
upon successor officials, both appointed and elected, to
bring new insights and solutions to problems of allo-
cating revenues and resources. The basic obligations of
federal law may remain the same, but the precise manner
of their discharge may not. If the State establishes
reason to modify the decree, the court should make the
Nos. 03-1412 & 03-1436 37
necessary changes; where it has not done so, however, the
decree should be enforced according to its terms.
Id. at 906 (emphasis added).
From these cases, it is clear that there are important dif-
ferences between a consent decree involving a one-time ad-
judication among private parties and one that includes an
injunction restricting the ability of a State or local govern-
ment to meet its responsibilities. In the latter case, there is a
need to ensure that changes in factual or legal circumstances
do not transform a once-just result into one that is unjust,
illegal or overly burdensome and do not unnecessarily hinder
a State in providing for the welfare of its citizenry. Although
changes in the factual or legal predicates on which a consent
decree is based are not grounds for ignoring or defying the
decree, see Frew, 124 S. Ct. at 906; Komyatti, 96 F.3d at 963(“[W]e believe that the court expressed the usual course . . .
when it wrote that a ‘continuing respect for the valid decrees
of a court commands that they be obeyed until changed.’ ”
(quoting Kindred v. Duckworth, 9 F.3d 638, 644 (7th Cir.
1993))), Rule 60(b) does provide an avenue for modification
of a consent decree. As articulated by the Court in Rufo,
Rule 60(b) is a “flexible standard” according to which “a
party seeking modification of a consent decree must
establish that a significant change in facts or law warrants
revision of the decree and that the proposed modification is
suitably tailored to the changed circumstance.” 502 U.S. at
6
393.
6
A district court need not wait for the parties explicitly to re-
quest such changes; “the court can on its own motion vacate”—
or modify—“the decree pursuant to Rule 60(b)(5).” United States
v. Bd. of Educ. of Chicago, 799 F.2d 281, 297 (7th Cir. 1986).
38 Nos. 03-1412 & 03-1436
D. Application
As we noted earlier, the parties each emphasize a different
line of cases in presenting their arguments. The plaintiffs
maintain that the district court erred in addressing the
question of standing because relitigation of the standing issue
is barred by Swift I. There is no question that Swift I has
some application here. In the Shakman litigation that led to
the 1983 Consent Decree, the City maintained that the voters
lacked constitutional standing to challenge hiring and
promotional practices, but the district court determined
that, adhering to our decision in Shakman I, the plaintiffs
had standing. See Shakman, 481 F. Supp. at 1328-29. The City
took no appeal from this ruling. Under such circumstances,
when a federal court “has decided the question of the juris-
diction over the parties as a contested issue, the court in
which the plea of res judicata is made has not the power to
inquire again into that jurisdictional fact.” Stoll, 305 U.S. at
172. Thus, as this court has stated, only “an egregious want
of jurisdiction” will justify reconsideration of the standing
issue. In re Factor VIII, 159 F.3d at 1018.
The City does not argue that there was an “egregious
want of jurisdiction” in 1979, when the district court, ad-
hering to our ruling in Shakman I, found that the Shakman
plaintiffs had standing to pursue their hiring claims. Nor
does the City argue that there was an egregious want of
jurisdiction when the 1983 Consent Decree was entered. It
does, however, point to language in Firefighters that, “at a
minimum, ‘a consent decree must spring from and serve to
resolve a dispute within the court’s subject matter jurisdic-
tion.’ ” Appellee’s Br. at 20 (quoting Firefighters, 478 U.S. at
525). Furthermore, the City contends that, because Shakman
II “makes plain [that] there was no case or controversy
within the district court’s jurisdiction when it entered the
Nos. 03-1412 & 03-1436 39
1983 decree,” “the decree is itself without jurisdictional
7
support.” Id.Contrary to the City’s contention, this court in Shakman II
did not determine that the district court’s 1979 standing
ruling misapplied the law of standing as the concept was
understood in 1979. Instead, we explained that
we are confronted with a significantly different legal
landscape than the one that confronted the district court
at the time the complaint was originally filed in 1969, at
the time of the first appeal to this court in 1970, or at the
time that the district court made the ruling now before
us in 1979. During these intervening years, the Supreme
Court has engaged in a thorough examination of
“justiciability,” the limitations imposed on federal
courts by the “case-and-controversy” provision of
article III.
Shakman II, 829 F.3d at 1393 (emphasis in original). Further-
more, it was not because of any initial error by the district
court, but because of “these changes” that we were not “able
to regard the earlier holding of a panel of this court . . . as
having the precedential effect that we would normally ac-
cord such an earlier ruling of this court in the same litiga-
8
tion.” Id. at 1393 (emphasis added). Thus, at the time that
7
The City also attempts to distinguish Swift on its facts. See
Appellees’ Br. at 37 n.10.
8
As explained in detail earlier in this opinion, our decision in
Shakman II was a result of an appeal taken by Cook County
defendants in the ongoing Shakman litigation. Thus, although our
decision in Shakman II required us to confront the law-of-the-case
doctrine, namely the deference owed to a prior decision of a court
in the same litigation, in Shakman II we did not have to con-
(continued...)
40 Nos. 03-1412 & 03-1436
the district court issued its 1979 order (on which the 1983
Consent Decree was based) the voter-plaintiffs had standing,
and the “dispute [was] within the court’s subject matter ju-
risdiction.” Firefighters, 478 U.S. at 525.
The crux of the City’s argument is that the same changes
that required our reconsideration of standing in Shakman II
bar the present action by voters to enforce the 1983 Consent
Decree. Namely, the courts have articulated, with new clarity,
the requirement that, in order to have standing, the plain-
tiffs must articulate a direct and palpable injury, different
from any injuries suffered by a member of the general
public, which is directly traceable to the defendants’ illegal
conduct. As applied to political patronage cases, we have
held that a voter’s diminished political voice is not directly
traceable to political patronage hiring such that constitu-
tional standing requirements are met; in Shakman II, we
stated:
In this case, we find the line of causation between the
appellants’ activity and the appellees’ asserted injury to
be particularly attenuated. As in the foregoing cases, the
line of causation depends upon countless individual
decisions. Moreover, those countless individual deci-
sions must depend upon, according to the appellees’
own theory of the case, countless individual political
assessments that those who are in power will stay in
power. It is not the hiring policy itself which creates any
advantage for the incumbents. Any other candidate is
entirely free to assert that, if elected, he will follow the
same policy. Any advantage obtained by the incumbent
8
(...continued)
sider—as we do in the present action—the preclusive effect of a
judgment in a prior, completed litigation.
Nos. 03-1412 & 03-1436 41
is obtained only if potential workers make an independ-
ent evaluation that the incumbent, and not the opposi-
tion, will win. The plaintiffs will be at a disadvantage
if—and only if—a significant number of individuals
seeking political job opportunities determines the “ins”
will remain the “ins.”
Shakman II, 829 F.2d at 1397. Because “[f]or each citizen, many
factors, many not capable of articulation, will determine the
nature and extent of the person’s political activity”— only
one of which is the potential for future employment or
promotion, we concluded in Shakman II that voters could
not assert “with the certainty required by the case-and-con-
troversy requirement” that the injury to their political voice
was “ ‘fairly traceable’ to the actions of the defendants that
form the basis of their complaint.” Id. Given these holdings,
the City maintains that the present plaintiffs do not have
standing to enforce the present action.
The problem with the City’s present position is that it
ignores the procedural posture of this case. The present
plaintiffs brought an action to enforce the 1983 Consent
Decree, and the district court had the power to enforce that
decree: “ ‘[F]ederal courts are not reduced to approving con-
sent decrees and hoping for compliance. Once entered, a
consent decree may be enforced.’ ” Frew, 124 S. Ct. at 905(quoting Hutto v. Finney, 437 U.S. 678, 690-91 (1978)). A
party may not simply ignore the decree because it believes
that factual or legal changes since the decree’s entry renders
continued enforcement illegal or inequitable. Rather, Rule
60(b)provides an avenue to seek relief from some or all of
the requirements of the original decree.
It should be clear, therefore, from the above discussion,
that we believe that the district court’s judgment in this case
must be reversed. The decision suffers from some of the
same infirmities found in the judgment of the district court
42 Nos. 03-1412 & 03-1436
that we reversed in Komyatti. There, a district court had
refused to enforce a consent decree based on constitutional
decisions handed down after the initial entry of the decree.
In Komyatti, we explained that the state defendants could
not simply ignore the consent decree but should seek
modification of the decree pursuant to Rule 60. We believe
the same course should be followed here.
On remand, assuming the City wishes to pursue the issue,
the focus of the district court shall be not on the law of
standing as a jurisdictional concept but on the equitable
standards embodied in Rule 60(b)(5). Cf. Frew, 124 S. Ct. at
906 (holding that the equitable standards of Rule 60, not the
rule of Ex parte Young, 209 U.S. 123, govern the modification
of a consent decree). The district court should consider
critically whether changes in the legal landscape since 1983
require modification or vacatur of that decree pursuant to
Rule 60(b). Specifically, the cases outlined above reveal two
important developments that should guide the district court’s
analysis. First, Rufo and circuit court decisions in its wake
emphasize the need for district courts to take a flexible
approach to proposed modifications of consent decrees that
bind public entities: “[T]he public interest and ‘[c]onsider-
ations based on the allocation of powers within our federal
system’ require that the district court defer to local govern-
ment administrators who have the ‘primary responsibility
for elucidating, assessing, and solving’ the problems of insti-
tutional reform, to resolve the intricacies of implementing a
decree modification.” Rufo, 502 U.S. at 392 (quoting Dowell,
498 U.S. at 248; Brown, 349 U.S. at 299). In short, concerns of
federalism should factor strongly into the court’s analysis.
Second, the court must consider the significant changes in
the law of voter standing since the entry of the 1983 Consent
Decree. As Shakman II makes clear, we have serious concerns
whether the plaintiffs as voters bring to the litigation the
Nos. 03-1412 & 03-1436 43
sort of concrete adverseness to fulfill the mandate of Lujan.
The court should consider whether the class of voters has
the “incentive to vigorously litigate and present the matter
[of political patronage] to the court in the manner best suited
for judicial resolution.” Erwin Chemerinsky, Federal Jurisdic-
tion § 2.3.2 (2003). Even given the vitality of Swift and its
progeny, a decree fashioned in litigation in which one of the
litigants did not have a sufficient concrete stake in the
outcome might contain provisions that are not worthy of
continued enforcement by a federal court. If the City
“establishes reason to modify the decree, the court should
make the necessary changes; where it has not done so,
however, the decree shall be enforced according to its
terms.” Frew, 124 S. Ct. at 906.
Conclusion
For the foregoing reasons, the judgment of the district
court is reversed, and the case is remanded for further
proceedings consistent with this opinion. The parties shall
bear their own costs in this appeal.
REVERSED and REMANDED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-31-05