Reynolds v. Roberts

Johnny REYNOLDS, individually on behalf of himself and as representative of a class of black
employees of the Highway Department, State of Alabama, similarly situated, Plaintiff-Appellee,

Cecil Parker, Robert Johnson, et al., Intervenors-Plaintiffs-Appellees,

C. Campbell Wilson, Intervenor-Plaintiff,

William Adams, Cheryl Caine, et al., Intervenors-Plaintiffs-Appellants,

v.

G.M. ROBERTS, in his official capacity as Director for the Alabama Department of Transportation, et
al., Defendants.

Johnny Reynolds, individually and on behalf of himself and as representative of a class of black
employees of the Highway Department, State of Alabama, similarly situated, Plaintiff-Appellee,

Cecil Parker; Robert Johnson, et al., Intervenors-Plaintiffs-Appellees,

William Adams, Cheryl Caine, et al., Intervenors-Plaintiffs-Appellants,

v.

G.M. Roberts, in his official capacity as Director for the Alabama Department of Transportation, et al.,
Defendants-Appellees.

Nos. 97-6347, 98-6192.

United States Court of Appeals,

Eleventh Circuit.

March 29, 2000.

Appeals from the United States District Court for the Middle District of Alabama. (No. 85-000665-CV-T-N),
Myron H. Thompson, Chief Judge.

Before TJOFLAT and DUBINA, Circuit Judges, and STORY*, District Judge.

TJOFLAT, Circuit Judge:

These consolidated appeals arise out of a long-standing racial discrimination class action brought by

African-American employees and job applicants against the Alabama Department of Transportation (the

"Department"). Three years after the district court entered a race-neutral consent decree providing for

*
Honorable Richard W. Story, U.S. District Judge for the Northern District of Georgia, sitting by
designation.
prospective relief relating to job qualifications and promotion criteria, plaintiffs' counsel, using the class

action as their vehicle, applied to the district court for preliminary and permanent injunctions prohibiting

white employees of the Department from availing themselves of a race-neutral grievance procedure the parties

had fashioned and the court had approved. The court granted counsel's application for a preliminary

injunction, but, recognizing that the issuance of an order to show cause rather than an injunction is the

appropriate device for enforcing a consent decree, denied counsel's application for a permanent injunction.

In the same stroke, the court, intent on granting counsel the relief they sought, transformed their application

for a permanent injunction into an application for a declaratory judgment, declaring that allowing non-black

employees to use the race-neutral grievance procedure violates the consent decree. Reynolds v. Alabama

Dep't of Transp., 996 F.Supp. 1130 (M.D.Ala.1998). In No. 97-6347, a class of intervenors, who consist of

the Department's non-black employees (the "Adams Intervenors"), appeals the preliminary injunction. In No.

98-6192, the same class appeals the declaratory judgment. We vacate both orders and instruct the district

court to restore the status quo ante.

I.

A.

The procedural history of this case is set out in our opinion in Reynolds v. Roberts, 202 F.3d 1303,

1305-11 (11th Cir.2000) (Reynolds I ). Here, we recite a shortened version of that history and then focus on

the events relevant to this appeal.

The named plaintiffs brought this suit against the Department1 in May 1985 on behalf of all black

employees and former employees of the Department and all unsuccessful black applicants for positions within

the Department. Alleging race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42

1
In addition to the Department, the plaintiffs sued various state officials. The lawsuit was styled initially
as Reynolds v. King. It became Reynolds v. Roberts, then Reynolds v. Alabama Department of Transportation.
The case came to this court styled Reynolds v. Butts; Butts was the director of the Department when the
Adams Intervenors took this appeal. He was replaced as director by G.M. Roberts. We refer to the
defendants in this case collectively as the Department.

2
U.S.C. §§ 2000e-2000e-17, 42 U.S.C. § 1981, and the Equal Protection Clause of the Fourteenth Amendment,

plaintiffs sought monetary and injunctive relief under those statutes and under 42 U.S.C. § 1983. In October

1986, the court certified three plaintiff classes.2

After the parties joined issue, and engaged in discovery, they entered into settlement negotiations.

In 1988, and again in 1991, they presented a proposed consent decree to the district court for approval. On

each occasion, some members of the plaintiff classes objected to the entry of the decree; the district court

sustained their objections and refused to enter the decree.

In June 1992, the case proceeded to trial before the court. Near the end of the plaintiffs' case, the

parties asked the court to recess the proceeding indefinitely so they could engage in further settlement

negotiations. The court granted their request. In November 1993, the parties reached a partial settlement,

in the form of a proposed consent decree. The proposed decree provided a range of prospective class-wide

injunctive relief. Among other things, it set hiring and promotion quotas for blacks—33% of the positions

in each job classification in the Department would be set aside for blacks. To ensure an adequate pool for

this set-aside program, the decree directed the Department to mount an aggressive recruiting campaign at

historically black colleges and universities. Finally, the decree required the Department to establish a

grievance procedure for its employees.

The parties presented the proposed decree to the district court, which, in turn, scheduled a hearing

for January 19, 1994, to entertain any objections members of the plaintiff classes, or others likely to be

affected (like white employees of the Department), might have to the terms of the proposed decree. On

January 13, a group of white Department employees (the "Adams Intervenors") moved the court for leave to

2
The first class consisted of any black person who unsuccessfully applied for a merit position in the
Department at any time after May 21, 1979. The second class included all blacks employed by the
Department at any time after May 21, 1979, who were permanent employees under the Department's merit
system (the "merit" employees) and therefore eligible for, but had been denied, promotion. The third class
consisted of a portion of the blacks employed by the Department at any time after May 21, 1979, as temporary
employees (the "non-merit" employees). During their employment in the Department, these employees had
applied for, but had been denied, merit positions.

3
intervene on behalf of the Department's non-black employees in order to challenge the race-conscious

provisions of the proposed decree—specifically, the 33% quota requirement for all job classifications in the

Department. The court granted the motion, Reynolds v. Roberts, 846 F.Supp. 948, 953-54 (M.D.Ala.1994),

and subsequently certified an additional class, consisting of the Department's non-black employees.

The January 19 hearing was held as scheduled. Over 200 people attended the hearing, including

many non-black employees of the Department. The objections to the race-conscious aspects of the proposed

consent decree were such that the parties withdrew it and, with leave of court, went back to the drawing

board. By late February 1994, the plaintiffs and the Department decided to divide the previously proposed

decree into three parts, called Consent Decrees I, II, and III. Consent Decree I contained the provisions that

all sides agreed provided only race-neutral prospective relief. Consent Decrees II and III contained provisions

that were acceptable to the plaintiffs and the Department, but opposed as race-conscious by the Adams

Intervenors.

The parties submitted Consent Decree I to the district court for approval, and, on March 7, the court

held a hearing on the fairness of the proposal. No one other than the parties' attorneys appeared at the

hearing, and no one objected to the entry of the decree. The court approved the decree and, by order entered

March 16, 1994, adopted it in full.

B.

Consent Decree I is composed of a series of "Articles" which revamped the process by which the

Department hires, promotes, classifies, and pays its employees. The decree abolished the system of

"employment registers" from which positions were filled and promotions were granted, and created new

qualifications and procedures for hiring and promotion. It also created new procedures for, among other

things, rotation of job duties, recruitment, and training. None of the Articles of Consent Decree I provide

special benefits or procedures for black employees of the Department.

4
 The only Articles relevant to this appeal are Article 15 and one provision of Article 19. Article 15

required the Department to conduct a study of all its employees (regardless of race) to determine if any

employees were being assigned duties associated with a higher job classification (and thus higher pay level)

than the one they currently had. If the study uncovered an employee "spending a majority of [his or her]

working time in the performance of the duties and responsibilities of a higher job classification," the

Department was required to reclassify the employee at the higher level (and therefore increase that employee's

salary). Article 15 also required the Department "to monitor the duties and responsibilities performed by

employees with the goal of assuring to the extent practicable that at least 90% of the duties and

responsibilities performed by employees on a regular or non-emergency basis are within the job description

for [the] job they are holding."

To ensure that the Department was fulfilling Article 15's obligations (as well as other obligations)

under Consent Decree I, Article 19 mandated the creation of a grievance3 procedure that individual employees

could use:

Within 180 days of the effective date of this Decree, the Highway Department will develop and
implement an enhanced complaint procedure which assures that all discrimination complaints are
processed without fear and reprisal within established time limits and that appropriate action is taken
following [the resolution of a complaint]. Such procedure will be submitted to plaintiffs' counsel for
review and comment at least 30 days prior to its implementation.

The Department complied with this mandate and submitted a proposed complaint procedure, designated the

"Revised Complaint Procedure," to plaintiffs' counsel for review. Plaintiffs' counsel approved the procedure.

Although Article 19 did not require it to do so, the Department submitted the procedure to the district court.

On August 9, 1995, the court incorporated the procedure in an "Order and Injunction."4

3
Both Consent Decree I and the Revised Complaint Procedure use the words "grievance" and "complaint"
interchangeably. Throughout this opinion we use the term "grievance." We use the term "grievant," as did
the district court, to refer to an employee who has filed a grievance under the procedure.
4
In its order, the court stated that "[c]ounsel for the plaintiffs have informed us that they agree to [the
proposed grievance procedure]." We therefore assume that the Department "submitted [it] to plaintiffs'
counsel for review and comment at least 30 days prior to its implementation," as required by Article 19.

5
 The grievance procedure is race-neutral. It opens by stating that "[t]he Consent Decree and

Departmental policy mandate that all employees enjoy a work-place free from discrimination." The

procedure allows a grievance to be filed for any "alleged wrong based upon the employee's race, color, creed,

sex, national origin, age, or handicap." Moreover, it allows grievances for "a violation of the Consent Decree,

or arising from matters that are the subject of the Consent Decree." The procedure is available to the

Department's employees without regard to race.5

The grievance procedure consists of four steps. In step one, a grievance is submitted to an employee's

immediate supervisor. The supervisor responds in writing with a proposed resolution, which may or may not

be accepted by the grievant. If the grievance cannot be resolved, it is submitted in step two to the

Department's appointed Equal Employment Opportunity ("EEO") Monitor, who also proposes a solution.

If the grievant finds the solution unacceptable, the process moves to step three. Step three is a formal hearing

within the Department, conducted by the Department's "Hearing Officer."6 If the matter is still not resolved,

then, at step four, either party may seek arbitration before "an external arbitrator ... selected from a panel of

Seven (7) arbitrators, with Three (3) of such panel members to be designated by class counsel, Three (3) to

be designated by the Department, and One (1) to be designated by agreement among the other Six." An

The court did not indicate, in its order, whether counsel for the Adams Intervenors had
agreed to the procedure. The record does not reveal any contemporaneous objection by the Adams
Intervenors. On appeal, the Adams Intervenors do not challenge the grievance procedure itself, only
the district court's subsequent action precluding non-black employees from utilizing it.
5
The Revised Complaint Procedure is also available to "any ... employee who has been terminated ... or
applicant for full-time employment." The complaint procedure, however, provides no mechanism for a
former employee or applicant to file a grievance. Rather, the mechanism that is provided applies only to
current employees.
6
A Hearing Officer is taken in sequence from a list of Hearing Officers agreed to by both the Department
and plaintiffs' counsel.

6
employee with a grievance is not required to invoke the Revised Complaint Procedure; as the procedure

states, an employee may file an "administrative charge or separate legal action" instead.7

C.

As noted, Consent Decree I requires the Department, "to the extent practicable," to assure that

employees are performing the duties within their job classification and are not being assigned extra duties

without compensation. By 1996, a number of black employees of the Department had filed grievances

alleging that the Department had assigned them out-of-classification duties. They sought back pay and/or

a "provisional appointment"8 to the position whose duties they were actually performing. At least two of

these grievances eventually made their way to the district court for a ruling,9 and, in both, the court ordered

back pay and issued an injunction mandating a provisional appointment for the employee. In neither of these

7
In regards to the external arbitration at step four, the grievance procedure states:

The findings and orders of the arbitrator shall be final from which no appeal may be taken
in the context of the Reynolds case. Nothing in this procedure, however, shall be construed
to prevent the filing of any administrative charge or separate legal action. In the event that
class counsel deems the outcome of the arbitration to constitute a violation of Consent
Decree I, class counsel may file a motion ... for relief [with] the Court.

The record does not indicate how the parties or the court believed the first sentence of the above
provision, which allows "no appeal," to be consistent with the third sentence, allowing "class
counsel" to "file a motion ... for relief [with] the Court" whenever "class counsel deems the outcome
of the arbitration to constitute a violation of Consent Decree I."
8
As best we can discern from the record, a "provisional appointment" is simply a temporary promotion to
a higher job classification. The provisional appointment apparently expires when the higher position is
permanently filled through the competitive selection procedures mandated by Consent Decree I.
9
These grievances of black employees came before the court in the following manner. The original
Complaint Procedure negotiated between the parties (but not presented to the district court for approval)
allowed any dissatisfied grievant to file a separate motion for relief with the district court. The grievances
of the black employees described in the text were brought before the district court pursuant to this procedure;
the district court appointed a special master to take evidence and issue recommendations. At the same time,
the court stated that it would not continue to be what it described as a "super personnel board" and instructed
the parties to revise the Complaint Procedure to "remove the court from the process." Reynolds, 996 F.Supp.
at 1144 n. 40. This resulted in the parties negotiating the Revised Complaint Procedure and submitting it to
the district court for approval. See id. As this appeal indicates, the district court was unsuccessful in
"remov[ing itself] from the process." Id.

7
grievances did the district court make a finding that the grievant had been the victim of discrimination—the

court only found that they had been performing duties outside their job classification, in violation of Article

15.10

In late 1996, three white employees of the Department ("the white grievants") filed grievances

alleging that they too had been assigned duties outside their classification in violation of Article 15.11 They

sought back pay and provisional appointments. The employees' supervisor (all three apparently had the same

supervisor) did not provide a satisfactory resolution, and a single hearing for all three grievants was held

before the Department's EEO Monitor. The EEO Monitor recommended back pay and provisional

appointments for all three, a resolution which was accepted by the white grievants.

D.

On February 26, 1997, counsel for the three plaintiff classes ("plaintiffs' counsel") moved the district

court for a temporary restraining order ("TRO") to prevent the Department from implementing the three

grievance resolutions.12 They alleged that, if the EEO Monitor's resolution of the grievances were

10
One of the district court's injunctive orders awarding a provisional appointment and back pay to a black
grievant indicates that the Department opposed the award because the grievant had not proven that he had
been assigned work out-of-classification because of his race. The district court dismissed the Department's
position: "[A black grievant] has no obligation to show that the [D]epartment acted in a discriminatory
manner, only that they failed to conform to the decree."
11
The white grievants did not allege that they had been assigned duties outside their classification because
of their race.
12
As explained supra note 2, the plaintiff classes were made up of (1) unsuccessful applicants for merit
positions with the Department, (2) merit employees who had been denied promotion(s) in the Department,
and (3) non-merit employees who had been denied merit positions. The second and third classes included
both former and current employees of the Department.

It is obvious that the Department's Revised Complaint Procedure is inapplicable to the first
plaintiff class and to the former employees in the second and third plaintiff classes. See supra n. 5
and accompanying text. The procedure applies, instead, to current employees in the second and third
classes and, of course, to the Department's future employees.

Accordingly, when plaintiffs' counsel applied to the district court for the preliminary and
permanent injunctive relief involved in this appeal (although they did not indicate as much), they
were not representing members of the first plaintiff class or former employees in the second and third

8
implemented, the Department would be violating Consent Decree I. The next day, the court conferred with

plaintiffs' counsel and the Department's attorneys by telephone;13 later that day, it issued a TRO which

enjoined the Department from implementing the three grievance resolutions. On March 10, plaintiffs' counsel

applied for a preliminary injunction and asked the court to extend the TRO until their application could be

heard. After another telephone conference with the attorneys, the court extended the TRO and scheduled a

hearing for March 24 on the application for a preliminary injunction.14

The hearing was held as scheduled. On April 9, 1997, the court "preliminarily ENJOINED and

RESTRAINED" the Department and its agents "from provisionally appointing, promoting or paying backpay

to [the three white grievants]." The Adams Intervenors timely appealed from this preliminary injunction, No.

97-6347.

On March 28, before the court had ruled on the application for a preliminary injunction, plaintiffs'

counsel applied for a second preliminary injunction; this time, they asked the court to prevent the Department

from processing any grievances by non-black employees. Counsel alleged that allowing any non-blacks to

utilize the grievance procedure would violate Consent Decree I. The court treated counsel's application as one

for a permanent injunction and held hearings in late April 1997. Eleven months later, on March 3, 1998,

while the Adams Intervenors' appeal of the April 9 preliminary injunction was pending in this court, the

district court, in a memorandum order, ruled on counsel's application. See Reynolds, 996 F.Supp. 1130.15

plaintiff classes.
13
There is no indication in the record that the three white grievants were notified of plaintiffs' counsel's
application for a TRO or that they were represented by counsel in the telephone conference with the court.
Accordingly, the TRO issued without notice to these grievants. See Fed.R.Civ.P. 65(b). The record indicates
that counsel for the Adams Intervenors participated in all subsequent hearings on plaintiffs' counsel's
applications for injunctive relief (relating to the Revised Complaint Procedure) and acted as counsel for the
three white grievants—just as they have in these appeals.
14
The extended TRO would expire on March 24.
15
As far as we can tell from the record, the district court did not vacate the preliminary injunction enjoining
the Department from implementing the EEO Monitor's resolutions of the white employees' grievances; we
assume, therefore, that the preliminary injunction remains in effect against the Department.

9
 In its March 3, 1998, order, the court did not grant plaintiffs' counsel a permanent injunction; instead,

acting sua sponte, it gave them declaratory relief.16 It stated that allowing non-class members to file

grievances would be "a tool to allow supervisors again to engage in the secretive and non-competitive

selection and promotion of employees." Id. at 1132. The court worried that an employee and supervisor

would collude to circumvent the competitive system for employment contemplated by the consent decree:

the employee, under the direction of his supervisor, would file a fake "grievance," which would result in the

supervisor awarding a provisional appointment and back pay. Id. at 1139. Despite this concern, the court

concluded that issuing an order enjoining the Department from hearing grievances of non-blacks would be

inappropriate. It reached this conclusion because, in Newman v. Alabama, 683 F.2d 1312, 1318 (11th

Cir.1982), we instructed that consent decrees, like all injunctions, are to be enforced through the district

court's civil contempt power—exercised after (1) the plaintiff moves the court to order the defendant to show

cause why he should not be held in contempt for refusing to obey the decree's mandate, (2) the court grants

the motion, and (3) the defendant fails to present a lawful excuse for his alleged disobedience—and plaintiffs'

counsel had not invoked the court's enforcement power in this manner. Notwithstanding plaintiffs' counsel's

failure to move the court for an order to show cause why the Department should not be adjudged in contempt

for refusing to comply with the Consent Decree I, the court treated counsel as though they had done

so—except that instead of entering a permanent injunction against the Department, it entered a declaratory

judgment, which (we presume) it fully expected the Department to treat as an injunction.17 The court stated

that "the plaintiffs' motions for permanent injunctions ... are granted to the extent that it is declared as follows:

16
In none of plaintiffs' motions for injunctive relief did they ask for declaratory relief.
17
We have no doubt that the Department would treat the declaratory judgment as an injunction, since the
declaratory judgment would appear to foreordain the outcome of a hearing requiring the Department to show
cause why it should not be held in contempt for allowing non-black employees to invoke the grievance
procedure.

10
Provisionally appointing, promoting, or paying backpay to [the three white grievants] pursuant to the

grievances they filed would violate the consent decree."18 Reynolds, 996 F.Supp. at 1156.

The Adams Intervenors appealed this declaratory judgment, No. 98-6192. We consolidated the

appeal with their appeal of the preliminary injunction, No. 97-6347. We now vacate both judgments.

II.

Before we consider the merits of the Adams Intervenors' appeals, we think it appropriate to reiterate

what we have said in the past as to how injunctions, including consent decrees, are to be enforced. They are

enforced through the trial court's civil contempt power. See In re Grand Jury Proceedings, 142 F.3d 1416,

1424 (11th Cir.1998) (injunction); Newman, 683 F.2d at 1317-19 (consent decree). If the plaintiff (the party

obtaining the writ) believes that the defendant (the enjoined party) is failing to comply with the decree's

mandate, the plaintiff moves the court to issue an order to show cause why the defendant should not be

adjudged in civil contempt and sanctioned. See Newman, 683 F.2d at 1318; see also Thomason v. Russell

Corp., 132 F.3d 632, 634 n. 4 (11th Cir.1998); Wyatt v. Rogers, 92 F.3d 1074, 1078 n. 8 (11th Cir.1996).

The plaintiff's motion cites the injunctive provision at issue and alleges that the defendant has refused to obey

its mandate. See Wyatt, 92 F.3d at 1078 n. 8. If satisfied that the plaintiff's motion states a case of

non-compliance, the court orders the defendant to show cause why he should not be held in contempt and

18
As we explain in the text infra, the district court had no basis for nullifying the EEO Monitor's
resolutions of the three white's grievances; nothing in the record even remotely suggested that the EEO
Monitor's resolutions somehow discriminated against a member of any of the plaintiff classes. The court's
only reason for entering the judgment was to alleviate its concern that, at some unforeseen time in the future,
the Department might use the grievance procedure to reinstitute its racially discriminatory practices. In sum,
if the EEO Monitor's resolutions of the three white's grievances did not discriminate against a member of a
plaintiff class, but the court nonetheless felt constrained to nullify the resolutions as violative of Consent
Decree I, it follows inexorably that, in the court's view, allowing any non-black to invoke the grievance
procedure—even if it caused a plaintiff class member no injury—would violate the decree. We therefore treat
the declaratory judgment as amending the Revised Complaint Procedure so that it applies only to blacks. We
assume that, if a non-black employee has a grievance, he or she should resort not to the Revised Complaint
Procedure, but to whatever alternative procedure the Department may have devised for the purpose of
entertaining the grievance.

11
schedules a hearing for that purpose.19 At the hearing, if the plaintiff proves what he has alleged in his motion

for an order to show cause, the court hears from the defendant. At the end of the day, the court determines

whether the defendant has complied with the injunctive provision at issue and, if not, the sanction(s)

necessary to ensure compliance. See Newman, 683 F.2d at 1318.

As the district court appropriately recognized in its March 3, 1998, order granting a declaratory

judgment, plaintiffs' counsel did not invoke this time-honored procedure to obtain enforcement of any of the

provisions of Consent Decree I or the Order and Injunction, which amended Consent Decree I by approving

the Revised Complaint Procedure. The reason why plaintiffs' counsel did not move the court for an order to

show cause is obvious: the Department had not disobeyed any of the mandates of the consent decree, as

amended, and plaintiffs' counsel could not contend that it had without running afoul of Rule 11 of the Federal

Rules of Civil Procedure.20 What the Department had done was to permit three white employees to invoke

the race-neutral grievance procedure (provided by the Revised Complaint Procedure), and, then, to accept

the EEO Monitor's resolutions of the grievances. Instead of seeking enforcement of the consent decree, as

amended, through the district court's contempt power, plaintiffs' counsel took another approach, in two steps.

First, they moved the court to prevent the Department from implementing the EEO Monitor's

resolutions by entering a TRO and then a preliminary injunction. Second, they moved the court permanently

to enjoin the Department from allowing any non-black employee to invoke the grievance procedure. The

district court entered the TRO and preliminary injunction counsel requested. Eleven months later, the court

19
The court's show cause order may instruct the defendant to file a response; depending on what the
defendant says in his response, a hearing may be unnecessary.
20
Rule 11 states, in pertinent part:

By presenting to the court ... a pleading ... an attorney ... is certifying that to the best of the
person's knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances ... the claims, defenses, and other legal contentions therein are warranted by
existing law or by a nonfrivolous argument for the extension, modification, or reversal of
existing law ... [and] the allegations and other factual contentions have evidentiary support....

12
transformed counsel's application for a permanent injunction into a request for declaratory relief and granted

a declaratory judgment. We turn now to the merits of the Adams Intervenors' appeals, beginning with their

appeal of the preliminary injunction.

A.

We do not tarry long in concluding that the district court erred in entering the preliminary injunction

barring the Department from implementing the EEO Monitor's resolutions of the white employees' grievances.

A court enters a preliminary injunction to prevent the plaintiff from being injured, and where there is no

adequate remedy at law. See Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07, 79 S.Ct. 948, 954,

3 L.Ed.2d 988 (1959). In this case, the Monitor's resolutions injured no member of a plaintiff class on

account of race or in any other way. Had injury occurred in violation of any of the civil rights laws or the

Equal Protection Clause of the Fourteenth Amendment, a class member could have filed an independent

lawsuit, in state or federal court, and sought legal or equitable relief, or both. But, because no class member

suffered injury, plaintiffs' counsel were proceeding strictly on their own. That is, although they appeared to

be representing the plaintiff classes, they were actually representing no one but themselves—bent on

preventing the three white grievants from obtaining provisional appointments and back pay. They proceeded

as if the white grievants had done something unlawful by invoking the race-neutral complaint procedure.

Because they had suffered no injury that would warrant relief, legal or equitable, plaintiffs' counsel

lacked standing to prosecute their application for a preliminary injunction. Moreover, by using the Reynolds

case as a vehicle to prosecute their application, they abused the judicial process. And the abuse was as gross

13
as any we have encountered. As we detail in the margin,21 counsel not only failed to join the three white

grievants as defendants, they vigorously opposed their efforts to intervene.

There is no need to say more. The district court's preliminary injunction is vacated, and we instruct

the court to strike from the record plaintiffs' counsel's application for injunctive relief barring the Department

from implementing the EEO Monitor's resolutions of the three white employees' grievances.

B.

We address the merits of the Adams Intervenors' appeal of the declaratory judgment by making a

few observations that can hardly be disputed. First, Consent Decree I provides race-neutral prospective relief,

and that is all. Second, Article 19 required the Department to draft a procedure for ensuring that employees

could complain about such things as improper job classification and pay "without fear and reprisal" and to

submit the procedure to "plaintiffs' counsel for review and comment." The Department drafted a procedure,

the "Revised Complaint Procedure," and submitted it to plaintiffs' counsel as Article 19 required. The draft

was, as indicated supra, entirely neutral with respect to "race, color, creed, sex, national origin, age, or

21
After plaintiffs' counsel filed their motion for preliminary injunction to prevent the Department from
implementing the EEO Monitor's resolutions, the attorneys for the Adams Intervenors moved the court to
allow the three white grievants to intervene as individuals in order to represent their interests. At the March
24, 1997, hearing on plaintiffs' counsel's application for a preliminary injunction, plaintiffs' counsel objected
to a separate intervention by these white grievants, stating, "Intervention is not necessary to bind these parties
to an injunction. To allow further white employees to come into the case at will at this late date is not
proper." The court stated it would "take the motion [to intervene] under submission. Since it appears that
the movants ... are represented by the same lawyer [as the Adams Intervenors], I don't see any need to resolve
that right now."

The district court entered the preliminary injunction on April 9, without ruling on the motion
to intervene. The Adams Intervenors filed their notice of appeal on behalf of the class and on behalf
of the white grievants as "proposed-intervenors."

Two months later, the Adams Intervenors, in their brief in opposition to plaintiffs' counsel's
motion for a permanent injunction, argued in support of their motion to allow the three white
grievants to intervene. Neither plaintiffs' counsel nor the Department responded to the arguments.

As far as we can tell from the record, the district court has never ruled on the white grievants'
motion to intervene. Under the circumstances, for purposes of this appeal we treat the three white
grievants as part of the class represented by the Adams Intervenors.

14
handicap," meaning that the procedure would be made available to everyone, including a non-black. Third,

plaintiffs' counsel approved the draft. See supra n. 4. Fourth, although Article 19 did not require court

approval, the draft was submitted to the district court. Fifth, the court approved the draft, and thus made it

an amendment to Consent Decree I.

To say that the Revised Complaint Procedure somehow "violates" Consent Decree I, as plaintiffs'

counsel contended in their application for a permanent injunction (barring non-blacks from invoking it) is

more than sophistic; it is preposterous. So, why did plaintiffs' counsel file their application for a permanent

injunction which would limit the protection afforded by the complaint procedure to blacks only? Because

they thought they had made a bad bargain, and they wanted to undo it. But, instead of asking the court to

void the contract, however, for mutual mistake of fact or some other legally-recognized ground for vitiating

contracts22 (which would have been the professional thing to do, assuming that they could satisfy Rule 11's

ethical/professional standard), plaintiffs' counsel claimed that the revised procedure "violated" Consent

Decree I. The district court should have given plaintiffs' claim short shrift and rejected out of hand their

application for a permanent injunction. The court recognized that an application for injunctive relief is an

inappropriate device for enforcing a consent decree, so it sua sponte transformed the application into an

application for a declaratory judgment. Apparently, the court failed to realize that "that dog won't hunt,"

Elrod v. Sears, Roebuck, and Co., 939 F.2d 1466, 1471 n. 3 (11th Cir.1991), and that it was entering a

judgment that could not withstand appellate review.

It is evident, from what transpired in the district court in this case, that counsel and the court need

to be reminded of two things. First, "[l]ong standing precedent evinces a strong public policy against judicial

rewriting of consent decrees. '[A] district court may not impose obligations on a party that are not

unambiguously mandated by the decree itself.' King v. Allied Vision, Ltd., 65 F.3d 1051, 1058 (2d Cir.1995)."

22
Consent decrees are construed according to accepted contract principles. See Reynolds I, 202 F.3d at
1312-13. We note, however, that "[f]or the purposes of modification, consent decrees are not governed by
contract law, but are treated as judicial acts, akin to injunctions." Jacksonville Branch, NAACP v. Duval
County Sch. Bd., 978 F.2d 1574, 1578 (11th Cir.1992).

15
Reynolds I, 202 F.3d at 1312. Consent decrees are contracts, and we construe them using the normal tools

for interpreting contracts. See id. at 1312-13. Where they are unambiguous, the court must uphold a decree

as written. In this case, the contract—the Revised Complaint Procedure—is unambiguous.23 Moreover,

although it was drafted by the Department's attorneys, it was approved by the plaintiff classes' highly

sophisticated attorneys.24 Accordingly, the district court had no basis in law for rewriting the contract, which

it had approved, so that the Revised Complaint Procedure would be available only to blacks.

Second, if in the future a black employee—or any employee, for that matter—suffers racial

discrimination in the work place, the employee's remedy (if the grievance cannot be resolved) will be to seek

relief in a separate lawsuit, brought in state or federal court. If brought in the United States District Court

for the Middle District of Alabama, the suit will be assigned to a district judge under the court's random

assignment system. In other words, the suit will not be made a part of the Reynolds litigation.25

In sum, in No. 98-6192, the district court's declaratory judgment is vacated, and we instruct the

district court to strike from the record plaintiffs' counsel's application for permanent injunctive relief barring

the Department from making the Revised Complaint Procedure available to non-blacks.

23
Because Consent Decree I and the Revised Complaint Procedure amendment are unambiguous, the
district court erred when, in determining whether the amendment violated the decree, it considered evidence
that the plaintiff classes had introduced at the trial of the case, which was aborted before plaintiffs rested, and
testimony given at the March 24, 1997, hearing on plaintiffs' counsel's application for a preliminary injunction
(barring the Department from implementing the EEO Monitor's resolutions of the white employees'
grievances). See Reynolds, 996 F.Supp. at 1134-36, 1139-42.
24
We take judicial notice that plaintiffs' counsel have a wealth of experience in the courts of this circuit
and are surely aware of the legal consequences of entering into contracts and consent decrees. See, e.g.,
Riddle v. Cerro Wire & Cable Group, Inc., 902 F.2d 918 (11th Cir.1990); Holmes v. Continental Can Co.,
706 F.2d 1144 (11th Cir.1983).
25
We issue this directive in the exercise of our supervisory power after considering the history of this
litigation. See 28 U.S.C. § 2106 (1994) ("[A] court of appellate jurisdiction may ... require such further
proceedings to be had as may be just under the circumstances."). See generally Piambino v. Bailey, 757 F.2d
1112, 1145-46 (11th Cir.1985) ("Despite the wide variety of situations in which supervisory power has been
invoked, the objective behind its use—fashioning procedures and remedies that ensure that the judicial
process remains a fair one—has not varied."). See also Smith v. Mulvaney, 827 F.2d 558, 562-63 (9th
Cir.1987); United States v. Baylin, 696 F.2d 1030, 1043 n. 30 (3d Cir.1982).

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 III.

In No. 97-6347, plaintiffs' counsel invited the error the district court committed when it entered the

preliminary injunction barring the Department from affording the three white grievants the provisional

appointments and back pay the EEO Monitor awarded to them. In addition to inviting the error, plaintiffs'

counsel have attempted to defend the district court's ruling on appeal with baseless arguments. We have

considered whether we have the authority under Rule 38 of the Federal Rules of Appellate Procedure to award

the Adams Intervenors "just damages and single or double costs," but we conclude that the rule, as written,

precludes such an award to the appellant.26 We have also considered whether we have the authority under

28 U.S.C. § 1927 (1994) to award these intervenors "excess costs, expenses, and attorneys' fees reasonably

incurred" because of counsel's conduct. The courts of appeals have section 1927 authority. See, e.g., T.W.

Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 638 (9th Cir.1987); Olympia Co., Inc. v.

Celotex Corp., 771 F.2d 888, 893-94 (5th Cir.1985). Counsel subject to section 1927 sanctions are entitled

to be heard regarding the matter, see Braley v. Campbell, 832 F.2d 1504, 1514-15 (10th Cir.1987) (en banc

); accordingly, on receipt of the mandate, the chief judge of the Middle District of Alabama will assign the

case to himself or another district judge (other than Judge Thompson) for the purpose of enabling plaintiffs'

counsel to show cause why section 1927 sanctions should not be awarded to the Adams Intervenors.

In No. 98-6192, we conclude that the issue is a closer one. We assume that plaintiffs' counsel are not

responsible for the district court's sua sponte decision to transform their application for a permanent

injunction into an application for a declaratory judgment. As the district court itself acknowledged, it should

have dismissed counsel's application for a permanent injunction under the authority of Newman v. Alabama,

683 F.2d at 1318.

IV.

26
Rule 38 states: "If a court of appeals determines that an appeal is frivolous, it may, after a separately
filed motion or notice from the court and reasonable opportunity to respond, award just damages and single
or double costs to the appellee." See also 28 U.S.C. § 1912 (1994) (allowing court of appeals to award "just
damages ... and single or double costs" when "a judgment is affirmed").

17
 In conclusion, in No. 97-6347, we vacate the district court's preliminary injunction and instruct the

court to strike plaintiffs' counsel's application for injunctive relief. In No. 98-6192, we vacate the court's

declaratory judgment and instruct the court to strike from the record counsel's application for a permanent

injunction. The court is instructed to restore the case to the status quo ante, which means nothing has

happened in this case since August 9, 1995, when the district court entered its Order and Injunction, amending

Consent Decree I to incorporate the Revised Complaint Procedure.

SO ORDERED.

STORY, District Judge, concurring in part and dissenting in part:

I agree with the majority's decision vacating the district court's preliminary injunction in No. 97-6347

and instructing the district court to strike Plaintiffs' application for injunctive relief and vacating the district

court's declaratory judgment in No. 98-6192 and instructing the district court to strike from the record

Plaintiffs' application for permanent injunctive relief. However, as to Part III of the majority opinion, I

dissent.

The majority charges plaintiffs' counsel with "proceeding strictly on their own" and "representing no

one but themselves" in their pursuit of an injunction to prohibit the use of the Revised Complaint Procedure

by non-blacks. I do not ascribe such sinister motives to plaintiffs' counsel. We must not lose sight of the

history of this case. Hopefully, we are in the final chapter of a series of suits brought to end pervasive

discrimination within the Alabama Department of Transportation ("ALDOT"). It is against this background

that counsel's motives should be judged. For example, evidence presented at the 1992 trial concerning the

alleged pre-decree practice which allowed supervisors and employees to circumvent the merit selection

process through provisional promotions reasonably raised counsels' concerns that the new procedure might

be abused. Plaintiffs' counsel thus had a legitimate concern that the Revised Complaint Procedure might

violate Consent Decree I. Based upon the orders it entered, the district court apparently shared these concerns.

18
 Because there is no evidence to support a finding that the Revised Complaint Procedure was being

used by ALDOT officials to violate Consent Decree I or in an otherwise discriminatory manner, the relief

granted by the district court cannot be justified. However, this historical evidence arguably justified action

being taken by plaintiffs' counsel to get the issue before the district court for consideration. Except for the

majority's findings about plaintiffs' counsel's motives, I CONCUR fully in the analysis of the majority in Parts

I, II, and IV.

As to Part III, I would not impose § 1927 sanctions. Though plaintiffs' counsel sought the wrong

form of relief, they were attempting to be vigilant in protecting their clients' rights rather than being

unreasonable and vexatious. Therefore, as to Part III of the majority opinion, I DISSENT.

19