KRAVITCH, Senior Circuit Judge, dissenting:
I agree that this court may review the decision of the
district court refusing to approve the proposed consent decree, and
accordingly I join Section III.A of the majority opinion.1 Because
I disagree with the majority’s interpretation of the law and its
resolution of the merits of the United States’ appeal, I
respectfully dissent from Section III.B of the majority opinion.
My resolution of the merits necessitates review of the cross-
appeal; I therefore do not join Section III.C of the majority
opinion.
I.
A.
In its Order Denying Approval of the Settlement, the district
court found that the United States had demonstrated a “valid basis
for the race-conscious relief sought in the Agreement”2 by
1
To supplement the majority’s discussion of Carson’s irreparable
injury requirement, I add that to require the United States to
litigate on the merits to resolve whether the seniority proposal is
permissible would burden the class of discriminatees, see Carson v.
Am. Brands, 450 U.S. 79, 89, 101 S. Ct. 993, 999 (1981) (stating
that petitioners were harmed by inability to achieve “immediate
restructuring of respondents' transfer and promotional policies”),
undermine the policy of “make-whole” relief in Title VII cases, see
Franks v. Bowman Transp. Co., 424 U.S. 747, 765-66, 96 S. Ct. 1251,
1265 (1976), and contradict the “strong preference for encouraging
voluntary settlement of employment discrimination claims,” Carson,
450 U.S. at 88 n.14, 101 S. Ct. at 998 n.14.
2
Order at 7.
1
demonstrating a “gross statistical disparity”3 and thus
establishing a prima facie case of discrimination.4 The district
court concluded, however, that it could not “bind non-consenting
parties to a consent decree”5 and, alternatively, that the proposed
settlement agreement was not fair to incumbent employees.6 The
majority concludes that the district court was correct because a
district court may not approve “a proposed consent decree . . . if
it would affect the legal rights of the objecting parties.”
Because I believe that both rationales advanced by the district
court were based upon incorrect interpretations of the law and that
the majority rests its affirmance upon a similarly flawed basis, I
would reverse the order refusing to approve the consent decree.
The majority relies upon White v. Alabama, 74 F.3d 1058 (11th
Cir. 1996), and United States v. City of Miami, 664 F.2d 435
(Former 5th Cir. 1981) (en banc), for the proposition that “parts
3
Id. at 9. The United States proffered statistical evidence in
the affidavit of Marian Thompson, Ph.D., which showed, inter
alia, that at the time of the fairness hearing in 1994 only one
of the 235 members of the fire department was black; that none of
the 124 entry-level firefighters was black; that only five of the
313 sworn police department employees were black; and that only
four of the 240 entry-level police officers were black. See U.S.
Reply Br. at 8; R. 2-18, attachment A at 2 n.1 and 8-9 n.4. The
affidavit averred that the relevant labor market was either 17.2%
black or 16.1% black, depending upon which definition of the
labor market was used.
4
Order at 8.
5
Id. at 12-13.
6
Id. at 15.
2
of [a] decree [that] affect [a] third party who did not consent to
it . . . cannot properly be included in a valid consent decree.”
City of Miami, 664 F.2d at 442.
City of Miami, however, recognized that a consent decree can
abridge the contractual rights of a nonconsenting party, as long as
there has been a “trial or examination” before the district court
to determine whether the remedy sought is justified by past
discrimination. 664 F.2d at 447. In City of Miami, the challenged
consent decree would have entitled members of the class of
discriminatees who had not taken the civil service test to receive
promotions ahead of employees who had taken and passed the test.
The decree was challenged by employees who claimed that their
collective bargaining rights would be impaired by the decree. The
mandate of the court of appeals required modification of the decree
to provide that it would not affect promotion rights of the
objecting employees. The appellate court reasoned that the
district court failed to find past discrimination by the City that
would justify the remedies in the consent decree and, a fortiori,
would justify an abridgment of the interests of non-consenting
third parties. Id. at 447. The court stated:
The right to promotion on the basis of test accomplishment may
not be obliterated without a demonstration that the City has,
in making promotions, discriminated against members of the
affected classes in the past and that affirmative action is a
necessary or appropriate remedy or that it has so
discriminated in employment policy as to unfairly prejudice
the opportunity of the affected class to achieve promotions.
3
Id. at 446-47 (Rubin, J., concurring). The court concluded that
“[t]hose who seek affirmative remedial goals that would adversely
affect other parties must demonstrate the propriety of such
relief.” Id. at 447. The court did not hold, however, that a
consent decree that affects the contractual rights of nonconsenting
parties categorically is unlawful. Rather, the court expressly
held that a sufficient showing of past discrimination by the United
States would justify relief sought on behalf of the discriminatees.
See id. (“If, on remand, the United States shows that the City’s
practices have discriminated against individuals in or members of
the affected class in such a way as adversely to affect their
promotions, the district court shall fashion an appropriate remedy
invoking its ‘sound equitable discretion.’”) (quoting Franks v.
Bowman Transp. Co., 424 U.S. 747, 770, 96 S. Ct. 1251, 1267
(1976)).
Five years after the court decided City of Miami, the Supreme
Court confirmed that a court may enter a consent decree despite the
objections of a party to the action. In Local No. 93 v. City of
Cleveland, 478 U.S. 501, 106 S. Ct. 3063 (1986), the Court held
that an intervening union's consent was not required to obtain
court approval of a consent decree that arguably affected the
contractual rights of the union’s members. As in the case before
us, the class of plaintiff-discriminatees and the city in Local No.
93 agreed to enter a consent decree providing remedial relief --
4
including reserved planned promotions for minority employees and
modification of the application of the seniority system to benefit
discriminatees7 -- to which the union objected. The Court stated:
It has never been supposed that one party -- whether an
original party, a party that was joined later, or an
intervenor -- could preclude other parties from settling their
own disputes and thereby withdrawing from litigation. Thus,
while an intervenor is entitled to present evidence and have
its objections heard at the hearings on whether to approve a
consent decree, it does not have power to block the decree
merely by withholding its consent.
Id. at 528-29, 106 S. Ct. at 3079.8 The Court was careful to
distinguish between consent decrees that “impose[] obligations on
a party that did not consent to the decree” or that dispose of a
nonconsenting party’s legal claims for relief, id. at 529, 106 S.
Ct. at 3079 (emphasis added), and those that merely affect a
7
The United States notes that the contested remedy in the case
sub judice -- retroactive remedial seniority -- is less far-
reaching than the remedy in Local No. 93, which was extended to
individuals who were not actual victims of the City's
discriminatory practices.
8
The majority recites this language, yet renders it fully without
content by reading this circuit’s precedent to mean that “the
objection of a party whose rights or claims would be adversely
affected does bar a proposed consent decree.” The majority relies
upon City of Miami, decided five years before the Supreme Court’s
decision in Local No. 93. Even if City of Miami had held that a
mere adverse effect upon contractual expectations of an objecting
party were sufficient to preclude entry of an otherwise valid
consent decree -- a reading of City of Miami that I believe is
incorrect, see supra, Section I.A.-- that holding was overruled in
Local No. 93. Although White, the only other Eleventh Circuit case
relied upon by the majority, was decided after Local No. 93, a
close reading of that case makes clear that it, too, is not
inconsistent with Local No. 93 and does not support the majority’s
position. See infra.
5
nonconsenting party. The Court explained:
Of course, parties who choose to resolve litigation through
settlement may not dispose of the claims of a third party, and
a fortiori may not impose duties or obligations on a third
party, without that party's agreement. A court's approval of
a consent decree between some of the parties therefore cannot
dispose of the valid claims of nonconsenting intervenors; if
properly raised, these claims remain and may be litigated by
the intervenor. And, of course, a court may not enter a
consent decree that imposes obligations on a party that did
not consent to the decree. However, the consent decree
entered here does not bind Local No. 93 to do or not to do
anything. It imposes no legal duties or obligations on the
Union at all . . . .
Id. at 529-30, 106 S. Ct. at 3079 (citations omitted). Therefore,
a consent decree that “does not bind [the non-consenting party] to
do or not to do anything,” id. at 529-30, 106 S. Ct. at 3079, and
that does not impose any “legal duties or obligations” upon that
party -- duties the breach of which could lead to “contempt of
court for failure to comply with its terms,” id. at 530, 106 S. Ct.
at 3079 -- is not invalid. Likewise, a decree that does not
impermissibly dispose of the valid claims for relief of a
nonconsenting party is lawful.
The consent decree at issue here, like the decree at issue in
Local No. 93,9 does not impose any legal obligations upon the
9
Contrary to the majority’s contention, it appears that the
intervening union in Local No. 93 asserted interests similar to
those asserted by the intervenors here. See Local No. 93, 478 U.S.
at 507, 106 S. Ct. at 3067 (noting that union contended that
consent decree would “deny those most capable from [sic] their
promotions”) (emphasis added); Vanguards of Cleveland v. City of
Cleveland, 753 F.2d 479, 484-85 (6th Cir. 1985) (noting that union
claimed that consent decree’s affirmative action plan “penalizes
innocent non-minority firefighters” and stating that “[s]ince non-
6
nonconsenting parties. The appellees would not be required by the
decree “to do or not to do anything.” Local No. 93, 478 U.S. at
530, 106 S. Ct. at 3079. Nor do the objectors have any legal
claims for relief that could be disposed of by the proposed consent
decree. Appellees became parties to this action solely to voice
their views on the fairness of the settlement; they have at no time
during this litigation asserted “a cause of action in [their] own
right[,] and [they] could not prosecute reverse discrimination
claims (of [their] members) that [have] not yet arisen.” White v.
Alabama, 74 F.3d 1058, 1075 n.53 (11th Cir. 1996); cf. Kirkland v.
N.Y. State Dept. of Correctional Serv., 711 F.2d 1117, 1126 (2d
Cir. 1983) (approving of district court’s decision to let non-
minorities intervene “for the sole purpose of objecting to the
settlement”; stating that “although non-minority third parties
allowed to intervene in cases which involve consent decrees or
settlement agreements implementing race-conscious hiring or
promotional remedies do have a sufficient interest to argue that
the decree or agreement is unreasonable or unlawful, their interest
in the expectation of appointment does not require their consent as
a condition to any voluntary compromise of the litigation”).
minorities do not have a legally protected interest in promotions
which could only be made pursuant to discriminatory employment
practices, it follows that the legal rights of non-minorities will
not be adversely affected by reasonable and lawful race-conscious
hiring or promotional remedies”) (emphasis in original), aff’d,
Local No. 93, supra.
7
Instead, their argument is that their contractual rights will be
adversely affected by the decree.
That argument, however, is foreclosed not only by Local No.
93, see 478 U.S. at 528, 106 S. Ct. at 3078-79 (holding that
argument that “because the Union was permitted to intervene as of
right, its consent was required before the court could approve the
consent decree . . . misconceives the Union’s rights in the
litigation”), but also by the Supreme Court’s opinion in Franks v.
Bowman Transp. Co., 424 U.S. 747, 96 S. Ct. 1251 (1976), which
stands for the proposition that a third party cannot block approval
of a consent decree merely because the party will be “affected” by
the decree. In Franks, the Court held that retroactive competitive
seniority relief -- the relief challenged in the case sub judice --
was necessary to ensure full relief for the victims of
discrimination. Id. at 771, 96 S. Ct. at 1267. The union in that
case, like the appellees in the case before us, objected to
retroactive competitive seniority benefits for the discriminatees,
claiming that such relief would affect the rights of employees who
had not been victims of discrimination. Id. at 773, 96 S. Ct. at
1268. The Court stated:
Certainly, there is no argument that the award of retroactive
seniority to victims of hiring discrimination in any way
deprives other employees of indefeasibly vested rights
conferred by the employment contract. This Court has long
held that employee expectations arising from a seniority
system agreement may be modified by statutes furthering a
strong public policy interest.
8
Id. at 778, 96 S. Ct. at 1271.10 Because claims under Title VII
“involve the vindication of a major public interest,” id. at 778
n.40, 96 S. Ct. at 1271 n.40 (quoting Section-By-Section Analysis
of H.R. 1746, accompanying the Equal Employment Opportunity Act of
1972 Conference Report, 118 Cong.Rec. 7166, 7168 (1972)),
appellees’ assertion that an award of retroactive seniority
benefits impairs their contractual rights cannot defeat an
otherwise valid consent decree.11 Rather, to object successfully
10
The Court explained:
[I]t is apparent that denial of seniority relief to
identifiable victims of racial discrimination on the sole
ground that such relief diminishes the expectations of other,
arguably innocent, employees would if applied generally
frustrate the central “make-whole” objective of Title VII.
These conflicting interests of other employees will, of
course, always be present in instances where some scarce
employment benefit is distributed among employees on the basis
of their status in the seniority hierarchy. . . .
Accordingly, we find untenable the conclusion that this form
of relief may be denied merely because the interests of other
employees may thereby be affected.
Franks, 424 U.S. at 774-75, 96 S. Ct. at 1269.
11
The appellees’ -- and the majority’s -- reliance upon contract
expectations protected by Florida law thus is unavailing. The
economic expectations of the current employees and provisions of
Florida law protective of employment benefits cannot trump the
rights granted to all workers by Congress in Title VII. See U.S.
Const. art. VI. Moreover, the majority’s insistence that appellees
would be unfairly burdened by the proposed consent decree ignores
the impact of the City’s past discrimination upon the seniority
ladder appellees seek to protect. The controversial provision in
the consent decree awarding retroactive seniority would merely
restore incumbent employees to the place in the hierarchy that they
would have occupied absent discrimination. See Franks, 424 U.S. at
767, 96 S. Ct. at 1265 (“A concomitant award of the seniority
credit [that a discriminatee] presumptively would have earned but
9
to a decree between consenting parties, the objecting party must
show that the challenged consent decree has disposed of a legal
claim or imposed legal obligations or duties upon that party. This
appellees have not done.
The majority’s reliance upon White v. Alabama, 74 F.3d 1058
(11th Cir. 1996), is misplaced, as well. In White, a class of
African-American voters sued alleging that the at-large scheme for
electing state appellate judges diluted the voting strength of
African-American voters, and the class requested relief in the form
of a proportional representation scheme. Another plaintiff
intervened, purporting to represent a class of African-American
voters and seeking single-member districts. The court of appeals
invalidated a final order of the district court that the parties to
the case categorized as a consent decree; the order would have
provided in large part the relief sought by the initial class of
plaintiffs and thus would have denied the relief sought by the
for the wrongful treatment would also seem necessary in the absence
of justification for denying that relief.”). The majority’s
suggestion that the rights of incumbent employees would be
diminished by the decree much as would be “the rights of a
pedestrian in a crosswalk . . . by a runaway truck” ignores the
actual victims of discrimination in this case, who merely hope to
obtain the relief that Congress has provided and that the Supreme
Court unequivocally has stated is available to victims of illegal
discrimination. See id. at 774, 96 S. Ct. at 1269. Indeed, “the
State has the power to eradicate racial discrimination and its
effects in both the public and private sectors, and the absolute
duty to do so where those wrongs were caused intentionally by the
State itself.” City of Richmond v. J.A. Croson Co., 488 U.S. 469,
518, 109 S. Ct. 706, 735 (1989) (Kennedy, J., concurring in part).
10
intervenors despite their objections to the decree. The court of
appeals invalidated the decree approved by the district court
because it would have “provide[d] relief beyond that authorized by
Congress” in the Voting Rights Act. White, 74 F.3d at 1074. In
addition, and of relevance to the appeal before us, the court in
White distinguished Local No. 93 because the objecting party in
White was a plaintiff prosecuting a cause of action. Whereas in
Local No. 93 the “union’s sole reason for intervening in the case
. . . was to protest the settlement,” White, 74 F.3d at 1075 n.53,
in White the settlement would have disposed of a cause of action
properly raised in the objector’s pleadings, see id. at 1073 n.49
(noting that the nonconsenting party intervened as a plaintiff and
filed a complaint alleging that “he represented a class consisting
of all of Alabama’s black voters” and seeking relief in the form of
an order mandating single-member districts for the election of
Alabama appellate judges, relief that was “totally inconsistent”
with that sought by the other plaintiff class).
White thus recognized the uncontroversial proposition that a
court may not resolve by a settlement order the pleaded claims for
relief of a party before the court without that party’s consent.
See Local No. 93, 478 U.S. at 529, 106 S. Ct. at 3079 (“A court’s
approval of a consent decree between some of the parties therefore
cannot dispose of the valid claims of nonconsenting intervenors; if
properly raised, these claims remain and may be litigated by the
11
intervenor.”). In the case before us, however, the objecting
parties did not present any claim for relief to the district court,
but rather joined the action solely to protest the proposed
settlement. Local No. 93 expressly held that the refusal of such
a party to consent to a proposed settlement does not invalidate the
agreement, as long as the party had a chance to “present evidence
and have its objections heard at the hearings on whether to approve
the consent decree.” Local No. 93, 478 U.S. at 529, 106 S. Ct. at
3079. The district court thus erred in concluding that it could
not approve the consent decree over appellees’ objections.
B.
The majority holds that the contractual rights of the
objecting parties -- parties who are not prosecuting a legal claim
for relief in this action, see White, 74 F.3d at 1075 n.53, and who
thus cannot preclude entry of the consent decree, see Local No. 93,
478 U.S. at 528-29, 106 S. Ct. at 3079 -- may be affected only
after a “trial on the merits.” In Local No. 93, however, the
Supreme Court squarely held that the union that objected to the
consent decree could not preclude its entry simply because there
had been no trial on the merits. The district court’s fairness
hearing in that case sufficed to justify entry of the decree,
notwithstanding the union’s argument that it would affect the
contractual expectations of its members. The Court stated:
12
Here, Local No. 93 took full advantage of its opportunity to
participate in the District Court’s hearings on the consent
decree. It was permitted to air its objections to the
reasonableness of the decree and to introduce relevant
evidence; the District Court carefully considered these
objections and explained why it was rejecting them.
Accordingly, “the District Court gave the union all the
process that it was due . . . .”
478 U.S. at 529, 106 S. Ct. at 3079 (quoting Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 400, 102 S. Ct. 1127, 1136 (1982)).
As in the case sub judice, the district court in Local No. 93 had
conducted a fairness hearing to consider the propriety of the
proposed consent decree. See Local No. 93, 478 U.S. at 508, 106 S.
Ct. at 3068. It is clear, then, that a district court may enter a
consent decree despite the objections of a party after conducting
a fairness hearing at which the objector “is entitled to present
evidence and have its objections heard,”12 Local No. 93, 478 U.S.
at 529, 106 S. Ct. at 3079, even if the decree modifies “employee
12
Local No. 93 did not create a broad right of intervenors to a
quasi-trial, but rather simply required a district court conducting
a fairness hearing to allow a party objecting to a proposed
settlement agreement to “present evidence and have its objections
heard.” 478 U.S. at 529, 106 S. Ct. at 3079. Contrary to the
assertion of the majority, the district court thus was under no
obligation to permit the Suau objectors to cross-examine the United
States’ expert witness or to conduct discovery. The majority also
suggests that the Suau objectors were not permitted to offer
statistical evidence of their own. This assertion finds no support
in the record; indeed, the Suau objectors do not contend on appeal
that they were denied the opportunity to “present evidence and have
[their] objections heard” because they were given an opportunity to
do so at the fairness hearing. See R3 at 22-29 (transcript of
8/11/94 fairness hearing). Moreover, the Suau objectors in fact
presented their objections to the proposed consent decree and filed
a notice of their objections with the district court. See Order at
5.
13
expectations arising from a seniority system agreement,” Franks,
424 U.S. at 778, 96 S. Ct. at 1271.13 City of Miami is not to the
13
In addition, a finding by the district court of a prima facie
case of discrimination that is supported by the record is
sufficient to justify race-conscious relief. See Howard v.
th
McLucas,871 F.2d 1000, 1006 (11 Cir.), cert. denied, 493 U.S.
1002, 110 S. Ct. 560 (1989); Kirkland, 711 F.2d at 1130 (“[A]
showing of a prima facie case of employment discrimination through
a statistical demonstration of disproportionate racial impact
constitutes a sufficiently serious claim of discrimination to serve
as a predicate for a voluntary compromise containing race-conscious
remedies.”); see also Croson, 488 U.S. at 500, 109 S. Ct. at 725
(holding that city set-aside plan lacked strong basis in evidence
because “there [was] nothing approaching a prima facie case of
constitutional or statutory violation by anyone in the Richmond
construction industry”); Wygant v. Jackson Bd. of Educ., 476 U.S.
267, 277, 106 S. Ct. 1842, 1848 (1986) (holding that district court
should respond to challenge to race-conscious relief by making “a
factual determination that the employer had a strong basis in
evidence for its conclusion that remedial action was necessary”).
The district court's finding of a prima facie case in the case
before us was made in the course of consideration of the proposed
settlement agreement. A district court's task in reviewing such an
agreement is to ascertain that “the proposal represents a
reasonable factual and legal determination based on the facts of
the record, whether established by evidence, affidavit, or
stipulation” and that any effect on third parties is “neither
unreasonable nor proscribed.” City of Miami, 664 F.2d at 441;
accord City of Alexandria, 614 F.2d at 1362. In this case, the
district court's reliance upon the statistical evidence presented
in an affidavit by an expert represented “a reasonable factual and
legal determination” as a predicate for a decision whether to
approve a settlement agreement. City of Miami, 664 F.2d at 441.
Moreover, the district court’s finding is supported by the record.
The statistical evidence showed a stark disparity between the
percentage of blacks available in the relevant labor markets and
the number of blacks employed. See supra, Section I.A n.3;
Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307-308, 97 S.
Ct. 2736, 2741 (1977) (“Where gross statistical disparities can be
shown, they alone may in a proper case constitute prima facie proof
of a pattern or practice of discrimination.”); Int’l Bhd. of
Teamsters v. United States, 431 U.S. 324, 339-340 n.20, 97 S. Ct.
1843, 1856 n.20 (1977). Appellees’ argument that the United States
did not establish an evidentiary basis sufficient to justify race-
conscious relief thus is without merit.
14
contrary, see 664 F.2d at 447 (“[I]n the absence of either a trial
or an examination . . . by the district court, we are not prepared
to hold that the consent decree is valid insofar as it deprives the
[union] and its members of the benefit of the promotion procedure
. . . .”) (emphasis added), and, to the extent that the majority
reads it to be so, it cannot bind this court, see Local No. 93, 478
U.S. at 529, 106 S. Ct. at 3079. The district court’s conclusion
that it lacked the authority to approve the proposed consent decree
under these circumstances14 thus was erroneous.
C.
The district court also based its decision refusing to approve
the proposed consent decree upon a finding that the decree was
unfair to incumbent employees. Because the majority concludes that
the consent decree impermissibly would have compromised the rights
of the objectors, the majority does not decide whether the district
court’s conclusion that the decree was unfair is supportable under
applicable law. Because I believe that the majority’s conclusion
is incorrect, I address the district court’s alternative basis for
refusing to approve the decree.
The Supreme Court stated in Franks that
the denial of seniority relief to victims of illegal racial
discrimination in hiring is permissible “only for reasons
which, if applied generally, would not frustrate the central
14
See Order at 12-13 (“The Court finds that approval in the face
of these objections would not be appropriate because the Court
cannot bind non-consenting parties to a consent decree.”).
15
statutory purposes of eradicating discrimination throughout
the economy and making persons whole for injuries suffered
through past discrimination.”
424 U.S. at 771, 96 S. Ct. at 1267 (quoting Albermarle Paper Co. v.
Moody, 422 U.S. 405, 421, 95 S. Ct. 2362, 2373 (1975)). Indeed,
the Court stated that “the issue of seniority relief cuts to the
very heart of Title VII's primary objective of eradicating present
and future discrimination in a way that backpay, for example, can
never do.” Id. at 768 n.28, 96 S. Ct. at 1266 n.28. “[O]rdinarily
such relief will be necessary to achieve the 'make-whole' purposes
of [Title VII].” Id. at 766, 95 S. Ct. at 1265.
The district court here held that the proposed agreement was
unfair to incumbent employees because it would have an “unusual,
adverse impact.”15 Specifically, the district court relied in large
part upon its conclusion that incumbent employees' “vested,
contractual rights will be diminished.”16 As the United States
argues, however, contractual rights of the incumbent employees
would not be altered under the proposed agreement; rather only the
relative position of those employees in the hierarchy would be
affected -- and no more so than would have occurred absent
discrimination. Cf. Franks, 424 U.S. at 767, 96 S. Ct. at 1265
(“A concomitant award of the seniority credit he presumptively
15
Order at 17.
16
Order at 16.
16
would have earned but for the wrongful treatment would also seem
necessary in the absence of justification for denying that
relief.”). The Court explained,
[I]t is apparent that denial of seniority relief to
identifiable victims of racial discrimination on the sole
ground that such relief diminishes the expectations of other,
arguably innocent, employees would if applied generally
frustrate the central “make-whole” objective of Title VII.
These conflicting interests of other employees will, of
course, always be present in instances where some scarce
employment benefit is distributed among employees on the basis
of their status in the seniority hierarchy. . . .
Accordingly, we find untenable the conclusion that this form
of relief may be denied merely because the interests of other
employees may thereby be affected.
Franks, 424 U.S. at 774-75, 96 S. Ct. at 1269.
The district court also based its conclusion upon the “strong
likelihood . . . that an atmosphere of hostility and animosity
would arise between the incumbent employees and the incoming victim
class.”17 The opposition or hostility of incumbent employees to
remedial measures for victims of discrimination, however, is not a
valid basis upon which to deny relief. See, e.g., Local No. 93,
478 U.S. at 511, 106 S. Ct. at 3069 (affirming district court’s
approval of consent decree despite union’s objection that relief
would cause “serious racial polarization”); Equal Employment
Opportunity Comm’n v. Rath Packing Co., 787 F.2d 318, 335 (8th Cir.)
(holding that district court abused its discretion in denying
retroactive seniority and rejecting employer's claim that relief
17
Order at 18.
17
would “lower employee morale” because “[t]hese consequences can be
expected in almost all Title VII cases”), cert. denied, 479 U.S.
910, 107 S. Ct. 307 (1986).
The district court's reasons for finding that the proposed
settlement agreement was unfair thus lack a basis in law. Although
the standard of appellate review of a district court's refusal to
approve a consent decree is “not crystal clear,” see Stovall, 117
F.3d at 1240, a district court’s order premised solely upon an
erroneous interpretation of the law merits reversal whether the
court of appeals reviews the decision de novo or for abuse of
discretion.18 This is particularly so in light of Congress’s
“strong preference for encouraging voluntary settlement of
employment discrimination claims,” see Carson, 450 U.S. at 88 n.14,
101 S. Ct. at 998 n.14, a preference that could be defeated if
district courts were given unbridled discretion “to impose their
views of reasonableness . . . on settlements reached by the
government agencies responsible for the enforcement of Title VII
rights,” City of Alexandria, 614 F.2d at 1362. Because the
district court erroneously believed that the consent decree
18
In Stovall v. City of Cocoa, 117 F.3d 1238, 1240 (11th Cir.
1997), the court concluded that a court of appeals should “tailor
the standard of review to the district court’s rationale for
rejecting the proposed consent decree.” The court distinguished a
legal determination by the district court “that a proposed decree
would be unlawful,” which should be subject to de novo review, from
“a conclusion that a proposed decree would be unreasonable or
unfair,” which should be reviewed for abuse of discretion. Id.
18
impermissibly would burden the appellees' rights, misapprehended
the law with respect to non-consenting parties and consent decrees,
yet made findings adequate to support remedial retroactive
seniority for the victims of discrimination, I would hold that the
district court's decision refusing to approve the consent decree
should be reversed.
II.
Because the majority affirms the district court’s judgment
refusing to approve the consent decree, the majority does not
address the cross-appeal of the Suau objectors, who contend that
the district court erred in concluding that the United States
demonstrated a prima facie case of discrimination. I disagree with
the majority’s resolution of the merits of the United States’
appeal, however, and accordingly conclude that the cross-appeal is
not moot and should be addressed.
The United States contends that this court lacks jurisdiction
over the Suau objectors' cross-appeal challenging the district
court's finding of a prima facie case of discrimination because the
objectors do not appeal from a final order, see 28 U.S.C. § 1291,
or from an order denying them injunctive relief, see 28 U.S.C. §
1292(a)(1); Carson, supra. Because the Suau objectors do not --
and could not -- claim that the district court's finding that the
United States established a prima facie case was a final order
under section 1291, they can seek appellate review of that finding
19
only if the finding independently satisfies section 1292(a)(1),
discussed supra, or if the finding is so related to the ruling
appealed by the United States as to be “inextricably intertwined”
with that ruling. See Swint v. Chambers County Commission, 514
U.S. 35, 115 S. Ct. 1203, 1212 (1995).
This court lacks jurisdiction over the cross-appeal
independent of its jurisdiction over the United States' appeal
because a finding that the United States established a prima facie
case of discrimination is not a denial of injunctive relief
appealable under section 1292(a)(1). See Equal Employment
Opportunity Comm’n v. Pan Am. World Airways, Inc., 796 F.2d 314,
316-17 (9th Cir. 1986), cert. denied, 479 U.S. 1030, 107 S. Ct. 874
(1987); accord Shee Atika v. Sealaska Corp., 39 F.3d 247, 249 (9th
Cir. 1994). This court thus can entertain the cross-appeal only if
it is essential to the resolution of, or inextricably intertwined
with, the United States' appeal.
In Swint, the Supreme Court reversed a decision of a panel of
the Eleventh Circuit that impermissibly had exercised appellate
jurisdiction over a claim merely pendent to a reviewable collateral
order. Although recognizing that the Court had not “universally
required courts of appeals to confine review to the precise
decision independently subject to appeal,” 115 S. Ct. at 1211, the
Court made clear that “there is no 'pendent party' appellate
jurisdiction,” id. at 1212. The Court did not settle “whether or
20
when it may be proper for a court of appeals with jurisdiction over
one ruling to review, conjunctively, related rulings that are not
themselves independently appealable,” id., because the parties in
Swint did not -- and could not -- contend that the district court
decision in question was “inextricably intertwined” with the
decision over which the court of appeals properly had jurisdiction
or that “the former decision was necessary to ensure meaningful
review of the latter,” id. Although the Court in Swint
specifically addressed the scope of appellate jurisdiction over
collateral orders, see Cohen v. Beneficial Indus. Loan Corp., 337
U.S. 541, 69 S. Ct. 1221 (1949), the language of the opinion is
broad enough to encompass appeals brought pursuant to section
1292(a)(1) as well.
It is a close question whether this court enjoys appellate
jurisdiction over the cross-appeal. In determining whether
resolution of the correctness of the district court’s finding that
the United States established a prima facie case of discrimination
is “necessary to ensure meaningful review” of the United States’
appeal, Swint, 115 S. Ct. at 1212, over which we have jurisdiction,
this court should consider whether the district court’s conclusion
effectively is a predicate to our conclusion on the merits of the
United States’ appeal. Because an evaluation of the merits of the
United States' appeal necessarily involves reference to, and
reliance upon, the district court's finding that the United States
21
established a prima facie case justifying race-conscious relief,
see supra, Section I.C n.13, this court arguably can exercise
appellate jurisdiction over the cross-appeal.
Of course, as the United States argues, the Suau objectors'
cross-appeal may be characterized more properly as an alternative
argument for affirmance in the main appeal, in which case this
court may review the claim. Because the Supreme Court in Swint
made clear that a court of appeals should not readily exercise
jurisdiction over “related rulings that are not themselves
appealable,” 115 S. Ct. at 1212, and because I address the
substance of the cross-appeal in my discussion of the merits of the
United States’ appeal, see supra, Section I.C n.13, I would hold
that this court lacks the authority to review independently the
district court’s conclusion that the United States established a
prima facie case of discrimination.
III.
In my view, the majority has misapplied the law in affirming
the district court’s refusal to approve the proposed consent
decree. Because I believe that the proposed decree permissibly
would provide relief for the victims of discrimination and that the
district court lacked a basis in controlling law to refuse to
approve the decree, I would reverse the decision of the district
court and remand with instructions for the court to approve the
proposed decree.
22
Accordingly, I respectfully DISSENT from Sections III.B and
III.C of the majority opinion.
23