Shakman, Michael L. v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2105
MICHAEL L. SHAKMAN and
PAUL M. LURIE,
Plaintiffs-Appellees,
v.
CITY OF CHICAGO,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 69 C 2145—Wayne R. Andersen, Judge.
____________
ARGUED APRIL 14, 2005—DECIDED OCTOBER 24, 2005
____________
Before COFFEY, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. The City of Chicago (“City”) filed a
motion to vacate a consent decree entered in 1983 to settle
political patronage litigation originally instituted in 1969.
The district court denied the City’s motion to vacate, and
the City appealed. For the reasons set forth in the following
opinion, we reverse the judgment of the district court and
remand for further proceedings consistent with this opinion.
2 No. 04-2105
I
BACKGROUND
A. Facts
The basic facts underlying the present appeal have been
recounted in this court’s earlier decisions, see, e.g., Shakman
v. Democratic Org., 435 F.2d 267 (7th Cir. 1970) (“Shakman I”);
Shakman v. Dunne, 829 F.2d 1387 (7th Cir. 1987) (“Shakman
II”); O’Sullivan v. City of Chicago, 396 F.3d 843 (7th Cir. 2005);
we assume general familiarity with those cases and recount
here only those facts essential to an understanding of the
present appeal.
1. The Original Shakman Litigation
In 1969, Michael Shakman was an independent candidate
seeking election to the Illinois Constitutional Convention.
He and one of his supporters brought suit on behalf of
themselves, other candidates and voters against several
governmental entities and officials, including the City of
Chicago and its Mayor. The class alleged that the defen-
dants maintained a patronage system under which govern-
ment employment decisions—both hiring and reten-
tion—were based on the prospective (or current) employees’
support of Democratic candidates. According to Mr.
Shakman, this system violated the right of a candidate to
associate with supporters, the right of voters to a free
electoral process and the right of public employees to
associate with candidates from other parties.
The district court dismissed the complaint for lack of
standing; we reversed. We held that this “misuse of official
power over public employees . . . create[d] a substantial,
perhaps massive, political effort in favor of the ins and
No. 04-2105 3
against the outs.” Shakman I, 435 F.2d at 270. We concluded
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.” Id. Follow-
ing the remand, the City agreed to a consent judgment, and
such a decree was entered on May 5, 1972 (“1972 Consent
Decree”). See R.174, Ex.4.
The 1972 Consent Decree prohibited the City from
considering political activity or affiliation when making
employment decisions concerning current employees. The
district court retained jurisdiction to clarify and to enforce
the provisions of the decree. The decree did not address
whether political affiliation and activity could be considered
in hiring new employees—a matter that continued to be
litigated by the parties.
Litigation with respect to the hiring issue continued into
the next decade. In September 1979, the district court
granted the plaintiffs’ motion for partial summary judgment
on this claim. The district court stated that the patronage
hiring practices infringed upon the plaintiffs’ rights as
voters and candidates because those practices gave the
incumbent party an unfair advantage in elections.
On April 4, 1983, the court entered an order enjoining the
defendants from conditioning hiring decisions on an
applicant’s political affiliation. The City subsequently
entered into a second consent judgment on June 20, 1983
(“1983 Consent Decree”), with respect to the hiring issue.
See R.158, Ex.A. The 1983 Consent Decree enjoined the City
from considering political affiliation with respect to hiring
decisions, with limited exceptions for policy-making
positions. Again, the court retained jurisdiction to enforce
the decree, and the decree explicitly provided that an
enforcement action could be initiated by any registered
voter.
4 No. 04-2105
2. Shakman II Decision
Unlike the City of Chicago, several Cook County officials
did not become parties to the 1983 Consent Decree. These
officials appealed the district court’s partial summary
judgment in favor of the plaintiffs; we reviewed that
decision in Shakman II, 829 F.2d 1387. The focus of our
decision in Shakman II was “the constitutionality of
politically-motivated hiring practices”; “other patronage-
based employment practices” were not before us. Id. at 1393(citations omitted). Turning to the merits of the plaintiffs’
political hiring claims, we noted that significant changes
had occurred since the plaintiffs had filed the original action
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
portion of the contentions that were originally pre-
sented 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
federal courts by the “case-and-controversy” provision
of article III.
Id. at 1392-93 (emphasis in original; citations omitted). This
intervening case law made clear that the central inquiry in
determining whether a plaintiff had constitutional standing
was whether that plaintiff had suffered “ ’personal injury
fairly traceable to the defendant’s allegedly unlawful
No. 04-2105 5
conduct and likely to be redressed by the requested
relief.’ ” Id. at 1394 (quoting Allen v. Wright, 468 U.S. 731, 751
(1984)).
In applying this standard in Shakman II, we observed that,
although the plaintiffs had asserted several injuries, “the
heart of the plaintiffs’ case [wa]s their contention that the
hiring practices of the defendants violate[d] the speech and
associational rights of candidates and voters.” Id. at 1395.
We then turned to the question of whether the dilution of
voters’ political voice was “fairly traceable to the defen-
dants’ activity.” Id. We determined that “the line of causa-
tion between the appellants’ activity and the appellees’
asserted injury [was] particularly attenuated”; we ex-
plained:
[T]he line of causation depends upon countless individ-
ual decisions. Moreover, those countless individual
decisions must depend upon . . . countless individual
assessments that those who are in power will stay in
power. . . . Any advantage obtained by the incumbent is
obtained only if potential workers make an independent
evaluation that the incumbent, not the opposition, 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 “ins.”
Id. at 1397. However, “[t]racing the appellees’ asserted
injury to the appellants’ activity must depend on more than
the attempt of a federal court to take the political tempera-
ture of the body politic.” Id. at 1398 (citation omitted). In
sum, the relationship between the defendants’ activities and
the plaintiffs’ injuries were too speculative and tenuous to
support Article III standing. Consequently, we held that the
6 No. 04-2105
plaintiffs did not have standing to pursue their hiring action
against the remaining defendants.
3. Motion to Vacate
As we have noted already, the City was not a party to
Shakman II and therefore remained bound by the terms of
the 1983 Consent Decree. Since 1983, the City and the
members of the plaintiff class have continued to litigate the
scope and requirements of the 1983 Consent Decree.
In 2002, the City filed a motion to vacate the 1983 Consent
Decree under Federal Rule of Civil Procedure 60(b)(4) and
(5). The City submitted that Shakman II had held that the
plaintiffs did not have standing to pursue their patronage
hiring claims. Therefore, the City continued, the district
court did not have jurisdiction to enter the 1983 Consent
Decree, and the decree should be vacated pursuant to Rule
60(b)(4). See Fed. R. Civ. P. 60(b)(4) (allowing relief from
final judgment when “the judgment is void”). Alternatively,
the City submitted that Shakman II—and other cases that
narrowed the field of plaintiffs who meet constitutional
standing requirements—represented a change in law that
warranted relief under Rule 60(b)(5). See Fed. R. Civ. P.
60(b)(5) (allowing a court to provide relief from judgment if
“a prior judgment upon which it is based has been reversed
or otherwise vacated, or it is no longer equitable that the
judgment should have prospective application”).
In response, the plaintiffs maintained that the motion to
vacate, which was filed nearly fifteen years after Shakman II,
was untimely; that the City’s decision to adopt the consent
decree prevented it from attacking the validity of that
decree; and that this court’s ruling in Shakman II did not
undermine the validity of the 1983 Consent Decree.
No. 04-2105 7
The district court agreed with the plaintiffs. Relying on
this court’s decisions in United States v. Deutsch, 981 F.2d 299(7th Cir. 1992), and Kagan v. Caterpillar Tractor Co., 795 F.2d
601 (7th Cir. 1986), the district court first held that the Rule
60(b) motion was not timely. The district court also deter-
mined that the City could not now attack the jurisdictional
basis of the 1983 decree because “a party is not entitled to
relief under Rule 60(b) after making a deliberate decision
not to appeal a ruling of a lower court.” R.235 at 5. Finally,
although the district court agreed with the City that the
jurisdictional basis for the plaintiffs’ hiring claims may have
been called into doubt by Shakman II, the district court
believed that the 1983 Consent Decree had accomplished
more than merely settling the plaintiffs’ hiring claim: The
1983 Consent Judgment also “explicitly included the
obligations under the 1972 Consent Judgement.” Id. at 6.
The district court held that
[t]he net effect [of the 1972 and 1983 decrees] was the
creation of a comprehensive plan designed to minimize
partisan political influence on employment decisions
with respect to employees covered by the two Consent
Judgments. There is simply no doubt that there is a
relationship between the threatened rights of the
plaintiffs and the overall employment practices of the
City. . . . [The Seventh Circuit] recognized, as we do
today, that the use of partisan political practices to hire,
promote, assign and discharge workers, when taken in
combination, potentially create a cause-and-effect
relationship sufficient to invest standing in the plain-
tiffs.
Id. at 7-8. According to the district court, the “comprehen-
sive nature of the 1983 Consent Judgment, particularly as it
incorporates the terms of the 1972 Consent Judgment,
8 No. 04-2105
clearly distinguishe[d] the City’s legal position from that of
the appellants in Shakman II.” Id. at 8.
The district court did acknowledge “the frustration that
the City must feel because of the long-standing restraint of
the ongoing Consent Judgment.” Id. It advised the City that
“[i]f the objective standards of performance can be estab-
lished, perhaps a tentative expiration date can be set. In the
meantime, the Consent Judgment certainly can be modified
to reduce bureaucratic and legal expense required to comply
with it.” Id.
The City timely appealed.
II
ANALYSIS
The parties’ arguments on appeal mirror those presented
to the district court. The City first argues that the district
court could not enforce the 1983 decree because the plain-
tiffs lacked standing to challenge the municipal hiring
practices at issue. It again submits that, as a result of this
lack of standing, the district court erred in denying the
City’s motion to vacate pursuant to Rule 60(b)(4). Addition-
ally, the City renews its argument that the district court
erred in not granting relief under Rule 60(b)(5) because this
court’s decision in Shakman II constituted a change in the
law on which the 1983 Consent Decree is based. For their
part, the plaintiffs reiterate the arguments on which they
prevailed in the district court.
Shortly after briefing in this case was completed in this
court, we decided O’Sullivan v. City of Chicago, 396 F.3d 843.
O’Sullivan was an action to enforce the 1983 Consent Decree
(and the plan for compliance adopted thereunder) brought
No. 04-2105 9
by lieutenants in the Chicago Police Department, who
claimed that the City’s procedure for promotions violated
the decree. See id. at 851. Although O’Sullivan concerned an
enforcement action as opposed to a motion to vacate, the
parties in O’Sullivan raised many of the same arguments
that have been made with respect to the City’s motion to
vacate. Both of the parties to this action submitted
O’Sullivan as supplemental authority and discussed that
decision extensively at oral argument.
Because O’Sullivan addresses many of the arguments
raised by the parties, we first shall discuss that decision. We
then evaluate the district court’s disposition of the motion
to vacate in light of O’Sullivan.
A. The O’Sullivan Decision
In 2001, lieutenants in the Chicago Police Department
brought an action to enforce the 1983 Consent Decree.
Specifically, they claimed that the City’s promotional
practices violated the 1983 Consent Decree. See id. at 851.
The City moved to dismiss the action on the ground that the
plaintiffs had not alleged any injury to their rights as voters
and, therefore, the plaintiffs lacked constitutional standing.
The district court agreed. It observed that the decree granted
standing to voters to enforce its terms, but plaintiffs had not
alleged that the promotion practices at issue adversely
affected their rights as voters or candidates. The district
court therefore concluded that the plaintiffs had not estab-
lished the “injury in fact” required for constitutional
standing.
We reversed the district court’s judgment. We first noted
that the City’s argument, and the district court’s acceptance
of that argument, ignored the fact that the issue of standing
had been litigated fully and resolved against the City:
10 No. 04-2105
In the Shakman litigation that led to the 1983 Consent
Decree, the City maintained that the voters lacked
constitutional standing to challenge hiring and promo-
tional practices, but the district court determined that,
adhering to our decision in Shakman I, the plaintiffs had
standing. The City took no appeal from this ruling.
Under such circumstances, when 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.” Thus, as this court has stated,
only “an egregious want of jurisdiction” will justify
reconsideration of the standing issue.
O’Sullivan, 396 F.3d at 866 (quoting Stoll v. Gottlieb, 305 U.S.
165, 172 (1938), and In re Factor VIII, 159 F.3d 1016, 1018 (7th
Cir. 1998), respectively; citations omitted).
However, we also noted that our approach to the plain-
tiffs’ enforcement action had to be informed by recent case
law that addressed the special concerns raised by institu-
tional litigation. Specifically, in Rufo v. Inmates of the Suffolk
County Jail, 502 U.S. 367 (1992), the Supreme Court ex-
plained that its prior statements concerning finality of
judgments should not “ ’take on a talismanic quality,
warding off virtually all efforts to modify consent de-
crees.’ ” O’Sullivan, 396 F.3d at 860 (quoting Rufo, 502 U.S.
at 380). Furthermore, Rufo had noted that
“[t]he upsurge in institutional reform litigation . . . has
made the ability of a district court to modify a decree in
response to changed circumstances all the more impor-
tant. Because 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.”
No. 04-2105 11
Id. at 861 (quoting Rufo, 502 U.S. at 380; citations omitted).
Thus, after Rufo, “a party seeking modification of a consent
decree does not have to prove a grievous wrong . . . ; the
party only ‘bears the burden of establishing that a signifi-
cant change in circumstances warrants revision of the
decree.’ ” Id. (quoting Rufo, 502 U.S. at 383; other citations
and quotation marks omitted).
Reading these two lines of cases in tandem, we observed
that, although our case law—and that of the Supreme
Court—clearly established that parties could not ignore
consent decrees that they believed had become outdated in
some manner, Rule 60(b)1 provided an avenue for local
governmental authorities to seek relief from consent decrees
that, as a result of changed factual or legal circumstances,
may have become unjust, illegal or unenforceable. We
explained that
[t]he 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 consent decrees and hoping for compliance.
Once entered, a consent decree may be enforced.’ ” Frew
[v. Hawkins, 540 U.S. 431, 440 (2004)] (quoting Hutto v.
1
Federal Rule of Civil Procedure 60(b) provides in relevant part:
On motion and upon such terms as are just, the court may
relieve a party or a party’s legal representative from a final
judgment, order, or proceeding for the following reasons: . . .
(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 equitable that the judg-
ment should have prospective application . . . .
12 No. 04-2105
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 contin-
ued 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.
O’Sullivan, 396 F.3d 867-68 (emphasis in original; parallel
citations omitted).
Under the procedural circumstances presented to us in
O’Sullivan, therefore, we concluded that the district court’s
judgment had to be reversed. See id. However, we advised
that
[o]n 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). 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). Specifi-
cally, 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]onsiderations based on the allocation of powers
within our federal system’ 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.”
Rufo, 502 U.S. at 392 . . . . In short, concerns of federal-
ism should factor strongly into the court’s analysis.
No. 04-2105 13
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 sort of concrete adverseness to
fulfill the mandate of Lujan. The court should consider
whether the class of voters has the “incentive to vigor-
ously litigate and present the matter [of political patron-
age] to the court in the manner best suited for judicial
resolution.” Erwin Chemerinsky, Federal Jurisdiction §
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, [540 U.S. at 442].
O’Sullivan, 396 F.3d at 868 (citations omitted).
With these standards in mind, we turn to the decision of
the district court denying the City’s motion to vacate the
1983 Consent Decree.
B. The District Court’s Determination
Our review of a district court’s ruling on a motion to
vacate is a deferential one: We will disturb the district
court’s decision only if the district court committed an abuse
of discretion. See Browder v. Dir., Dep’t of Corr. of Illinois, 434
U.S. 257, 263 n.7 (1978). However, we note that “[a] court
has abused its discretion when it commits a clear error of
fact or an error of law.” Incredible Techs., Inc. v. Virtual Techs.,
14 No. 04-2105
Inc., 400 F.3d 1007, 1011 (7th Cir. 2005) (internal quotation
marks and citations omitted).
1.
The district court’s first ground for rejecting the City’s
motion to vacate was that the motion was untimely. In
addition to enumerating the grounds on which a party may
be granted relief from a final judgment, Rule 60(b) also
provides that a motion made thereunder “shall be made
within a reasonable time.” Fed. R. Civ. P. 60(b).2 “[W]hat
constitutes ‘reasonable time’ for a filing under Rule 60(b)
depends on the facts of each case.” Ingram v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 371 F.3d 950, 952 (7th Cir. 2004).3
A very important fact in this case is that the 1983 Consent
Decree provides for the ongoing involvement of a federal
district court in the hiring decisions of the City of Chicago.4
The decisions of the Supreme Court and of this court have
noted the need to avoid, when possible, interference in the
decision-making process of local governmental leaders by
extending, unnecessarily, the life of a consent decree whose
objectives have been achieved or have become unjust, illegal
2
Federal Rule of Civil Procedure 60(b) further provides that
motions made pursuant to subsection (b)(1), (b)(2) or (b)(3) may
not be made “more than one year after the judgment.” However,
the City does not seek relief under any of these subsections;
therefore, the one-year limitations period is not at issue.
3
See also McCorvey v. Hill, 385 F.3d 846, 849 n.4 (5th Cir. 2004);
Fed. Land Bank of St. Louis v. Cupples Bros., 889 F.2d 764, 767 (8th
Cir. 1989).
4
This appeal does not concern the validity or the ongoing
application of the 1972 Consent Decree.
No. 04-2105 15
or unattainable. See Frew, 540 U.S. at 442; Rufo, 502 U.S. at392 n.14; O’Sullivan, 396 F.3d at 868; Evans v. City of Chicago,
10 F.3d 474, 482 (7th Cir. 1993). The Supreme Court ex-
plained in Frew:
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
obligations is returned promptly to the State and its
officials. 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
responsibilities. A State, in the ordinary course, depends
upon successor officials, both appointed and elected, to
bring new insights and solutions to problems of allocat-
ing 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 estab-
lishes reason to modify the decree, the court should
make the necessary changes; where it has not done so,
however, the decree should be enforced according to its
terms.
Frew, 540 U.S. at 442.5
5
In Evans v. City of Chicago, 10 F.3d 474 (7th Cir. 1993), we also
discussed the special considerations presented by a Rule 60(b)
motion brought to vacate or modify a consent decree entered
with respect to institutional reform litigation:
To the objection that our approach interferes with the
settlement of litigation, we have two replies. First, settlement
is not an end in itself. It is a means of resolving disputes
harmoniously. Many things are more important: preserving
democratic governance, separating the judicial and political
(continued...)
16 No. 04-2105
In the present case, the district court did not consider the
public nature of the litigation in reaching its conclusion that
the City’s motion was untimely. Indeed, the only cases cited
by the district court in support of its timeliness determina-
tion are cases involving judgments against individuals. See
United States v. Deutch, 981 F.2d 299, 302 (1992) (holding
untimely a petitioner’s motion to return seized property);
Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 710 (7th Cir.
1986) (addressing 60(b) motion in employment discrimina-
tion case).
The district court’s determination that the City’s motion
was untimely rested on the fact that the “City certainly
knew about Shakman II as soon as the opinion was issued,”
R.235 at 4, and yet failed to act on that knowledge. How-
ever, even with respect to purely private litigation, the
litigants’ knowledge of the grounds for relief is only one
factor for the district court to weigh. Other factors include
“ ’the interest in finality, the reason for delay, the practical
ability of the litigant to learn earlier of the grounds relied
upon, and [the consideration of] prejudice [if any] to other
5
(...continued)
spheres, respecting state autonomy in the absence of a federal
rule. These interests may elude a hectored district judge, eager
to reach the next case in the queue, but to the political society
whose long-term good the judge serves they are vital. Settle-
ments purchased at the cost of putting the court in control of
state and local budgets come at too high a cost. Second, the
premise is incorrect. Attempts to enforce this consent decree
have not produced the peace that settlement brings. There have
been 16 years of noisome litigation. Politics is unruly and often
unpleasant; judicial regulation of political affairs does not end
the conflict but only shifts the venue.
Id. at 482 (internal citations omitted).
No. 04-2105 17
parties.’ ” Kagan, 795 F.2d at 610 (quoting Ashford v. Steuart,
657 F.2d 1053, 1055 (9th Cir. 1981) (alteration in original)).
In institutional reform litigation, unlike private disputes,
there are several “other parties” whose interests should be
considered. The Supreme Court, in discussing Rule 60(b),
has observed that “the public interest is a particularly
significant reason for applying a flexible modification
standard in institutional reform litigation because such
decrees reach beyond the parties involved directly in the
suit and impact on the public’s right to the sound and
efficient operation of its institutions.” Rufo, 502 U.S. at 381;
see also O’Sullivan, 396 F.3d at 868.
In short, any consideration of a “reasonable time” for
filing a Rule 60(b) motion with respect to the 1983 Consent
Decree must take into account the nature of that litigation as
well as the resulting prejudice, if any, to the present elected
officials and the public they represent. The district court did
not consider these factors, and this failure constituted an
abuse of discretion.
2.
The district court also held that the City’s agreement to
the 1983 Consent Decree prevented the City from now
attacking that judgment. Specifically, the district court
stated that “[t]he City’s 1983 request that this Court enter
the Consent Judgment, coupled with the dismissal of its
appeal, prevents the City from subsequently attacking the
judgment.” R.235 at 5. The district court relied upon
Ackerman v. United States, 340 U.S. 193 (1950), and Local 322,
Allied Industrial Workers v. Johnson Controls, Inc., 969 F.2d 290(7th Cir. 1992), for the proposition that “a party is not
entitled to relief under Rule 60(b) after making a deliberate
decision not to appeal a ruling of a lower court.” R.235 at 6.
18 No. 04-2105
We do not dispute this statement as a general proposition.
However, we have noted that this rule is “not inflexible,”
Allied Indus. Workers, 969 F.2d at 292; cf. Ackerman, 340 U.S.
at 198-99 (discussing circumstances that might justify relief
from the judgment), and the need for flexibility is particu-
larly important with respect to institutional reform litiga-
tion. As explained by the Court in Rufo:
The upsurge in institutional reform litigation since
Brown v. Board of Education, 347 U.S. 483 (1954), has
made the ability of a district court to modify a decree in
response to changed circumstances all the more impor-
tant. Because 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.
Rufo, 502 U.S. at 380. We reiterated in O’Sullivan this “need
for district courts to take a flexible approach to proposed
modification of consent decrees that bind public entities.”
396 F.3d at 868.
Institutional reform litigation, and consent decrees
attendant to that litigation, involve considerations of public
interest and federalism that are not present in the run-of-
the-mill civil case. As both the Supreme Court and this court
have made clear, the district court’s recognition of the
uniqueness of these cases must inform its decision whether
to grant or deny a motion brought pursuant to Rule 60(b).
Indeed, in our instructions to the district court on remand in
O’Sullivan, we specifically mentioned this need for flexibil-
ity as one of the principles that “should guide the district
No. 04-2105 19
court’s analysis.” Id.6 Here, the district court’s failure to
adopt the “flexible” approach outlined above was an abuse
of discretion.
3.
Lastly, the district court considered, and rejected, the
City’s substantive argument—that the court lacked jurisdic-
tion to enter the 1983 Consent Decree initially and also
lacked jurisdiction to continue to enforce the decree.7 The
district court acknowledged that some “language from the
Shakman II opinion indeed supports the City’s contention
that this Court should now vacate the 1983 Consent Judg-
ment.” R.235 at 6. However, the court determined that
[u]nlike the subject matter on appeal in Shakman II, the
1983 Consent Judgment covers far more than hiring
practices. The 1983 Consent Judgment explicitly in-
cluded the obligations under the 1972 Consent Judg-
ment which prohibited political firing and also prohib-
6
In O’Sullivan v. City of Chicago, 396 F.3d 843, 868 (7th Cir. 2005),
we noted that, on remand, “the significant changes in the law of
voter standing since entry of the 1983 Consent Decree” also
should inform the district court’s consideration of any motion to
vacate brought by the City.
7
In its brief, which, as noted above, was filed prior to our
decision in O’Sullivan, the City also argues that the district court
erred in denying relief pursuant to Rule 60(b)(4). Specifically, the
City reiterates the argument made to the district court that,
because the plaintiffs lacked constitutional standing to bring this
cause of action, the 1983 Consent Decree was void ab initio. We
rejected this argument in O’Sullivan, 396 F.3d at 866-67, and
further discussion is not warranted here.
20 No. 04-2105
ited “conditioning . . . any term or aspect of governmen-
tal employment, with respect to one who is at the time
already a governmental employee, upon or because of
any political reason or factor.”
Id. The court thus concluded that “[t]he comprehensive
nature of the 1983 Consent Judgment, particularly as it
incorporates the terms of the 1972 Consent Judgment,
clearly distinguishes the City’s legal position from that of
the appellants in Shakman II.” Id. at 7.
In essence, the court acknowledged that our decision in
Shakman II severely undermined the concept of voter
standing to challenge municipal hiring practices. However,
because the 1983 Consent Decree did not only end litigation
with respect to the City’s hiring practices, but also restated
the terms of the 1972 Consent Decree (related to the City’s
responsibilities to current employees), the district court
believed that the 1983 Consent Decree should not be
disturbed.
The district court’s opinion implies that vacating the 1983
Consent Decree will somehow undermine the 1972 Consent
Decree. However, there is no factual or legal basis for this
assumption. The City’s motion to vacate was entitled
“Defendant City of Chicago’s Motion to Vacate the June 20,
1983 Hiring Consent Decree,” and sought “to vacate the
consent decree entered on June 20, 1983 by Judge Bua.”
R.157 at 1. Furthermore, in its brief in support of the motion,
the City stated that “it must be clear that the City does not
seek to vacate the 1972 decree which protects employees
once they have been hired.” R.158 at 3.8 The City reiterates
8
The City acknowledged that, if the district court were to grant
(continued...)
No. 04-2105 21
this position in its brief before this court, see Appellant’s Br.
at 27 n.6 (“[W]e have not moved to vacate the 1972 de-
cree.”), a position that is not contested by the appellees.
Thus, the protections contained in the 1972 Consent Decree,9
which were crucial to the district court’s determination not
to vacate the 1983 Consent Decree, will remain in full force
regardless of the district court’s action on the 1983 Consent
Decree.
Because the continued validity of the 1972 Consent Decree
was not before the district court and because the 1972
Consent Decree will not be affected by the district court’s
determination with respect to the 1983 Consent Decree, we
must conclude that the district court abused its discretion in
using the 1972 Consent Decree as a basis for denying the
City’s motion.
4.
8
(...continued)
its motion, paragraph H(1)(b) of the 1972 Consent Decree
(providing for the district court’s continued jurisdiction to enable
the parties to litigate the question of whether “political sponsor-
ship or other political considerations [could] be taken into
account in hiring employees”) would have to be vacated. The
City further stated that “[t]he paragraphs of the 1972 decree that
protect persons once they are hired, however, would not be
modified as a result of this motion.” R.158 at 3 n.2.
9
The 1972 Consent Decree enjoined the City from “conditioning,
basing or knowingly prejudicing or affecting any term or aspect
of governmental employment, with respect to one who is at the
time already a governmental employee, upon or because of any
political reason or factor.” R.174, Ex.4 at 3.
22 No. 04-2105
In sum, we do not believe that the district court’s denial of
the City’s Rule 60(b) motion can be reconciled with this
court’s decision in O’Sullivan or the decisions of the Su-
preme Court in Rufo and Frew. Those authorities make clear
that, when considering a Rule 60(b) motion with respect to
public litigation, the nature of that litigation must factor into
the district court’s decision-making process; the public
interest and “concerns of federalism” should guide the
court’s analysis. O’Sullivan, 396 F.3d at 868.
Furthermore, as we advised in O’Sullivan, we believe that
the district court’s Rule 60(b) analysis must account for “the
significant changes in the law of voter standing since the
entry of the 1983 Consent Decree,” id., a factor not squarely
confronted by the district court’s decision. “[A] decree
fashioned in litigation in which one of the litigants did not
have sufficient concrete stake in the outcome might contain
provisions that are not worthy of continued enforcement by
a federal court.” Id. On remand, the district court should be
guided by the current law of standing to determine whether
the class of voters has the necessary interest in this litigation
“ ’to vigorously litigate and present the matter of [political
patronage] to the court in the manner best suited for judicial
resolution,’ ” or whether that task is best left to individuals
directly impacted by hiring decisions made by the City. Id.(quoting Erwin Chemerinsky, Federal Jurisdiction § 2.3.2
(2003)) (alteration in original).
Conclusion
For the reasons set forth in the above opinion, the judg-
No. 04-2105 23
ment of the district court denying the City’s motion to
vacate is reversed. The case is remanded for further pro-
ceedings consistent with this opinion. The City may recover
its costs in this court.
REVERSED and REMANDED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-24-05