[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 98-6164 JULY 22, 2003
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 85-00665-CV-T-N
JOHNNY REYNOLDS, individually and on
behalf of himself and representative
of a class of black employees of the
Highway Department, State of Alabama,
similarly situated,
Plaintiff-Appellee,
CECIL PARKER, et al.,
Intervenors-Plaintiffs,
WILLIAM ADAMS,
CHERYL CAINE,
TIM COLQUITT,
WILLIAM FLOWERS,
WILSON FOLMAR,
GEORGE KYSER,
BECKY POLLARD,
RONNIE POUNCEY,
TERRY ROBINSON,
TIM WILLIAMS, on behalf of
themselves and all similarly situated
persons (Non-Class Employees),
Intervenors-Plaintiffs-Appellants,
versus
JOE MCINNES, in his official capacity as
Director of the Alabama Department of
Transportation,
HALYCON VANCE BALLARD, individually,
TOMMY G. FLOWERS, as Director of Personnel
Department, State of Alabama,
DEPARTMENT OF TRANSPORATION, STATE OF ALABAMA,
DEPARTMENT OF PERSONNEL, STATE OF ALABAMA,
BOB RILEY, in his official capacity as
Governor of the State of Alabama,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Alabama
________________________
(July 22, 2003)
Before CARNES, HILL and FARRIS*, Circuit Judges.
CARNES, Circuit Judge:
This appeal arises out of the ongoing Reynolds employment discrimination
litigation between the defendants Alabama Department of Transportation
(ALDOT) and the State Personnel Department (SPD), two plaintiff classes of
black employees and prospective employees of ALDOT, and an intervening class
*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
2
of non-black employees. The litigation has been ongoing for eighteen years, and
before today we have previously issued published opinions in five separate
appeals arising out of it.1 We have eight appeals involving the case presently
pending at one stage or another before us. This one results from the district
court’s February 11, 1998 order, in the nature of an injunction, requiring ALDOT
to implement certain multi-grade job classifications in order to comply with
Article Fifteen, ¶ 3 of a 1994 consent decree in the case. The defendants contend
that the district court erred in entering that injunctive relief without conducting
contempt proceedings. Alternatively, they contend that the district court erred in
interpreting and applying Article Fifteen, ¶ 3 of the consent decree. As we will
explain, we conclude that the defendants’ first contention is barred because it was
not raised in the district court, but we agree with their second one. We also have
some observations to make about the litigation as a whole.
I. BACKGROUND AND PROCEDURAL HISTORY
The complicated procedural history of the underlying case has been set forth
in detail in three of our previous opinions. Reynolds v. Roberts, 251 F.3d 1350,
1
See Reynolds v. Butts, 312 F.3d 1247 (11th Cir. 2002) (“Reynolds IV”); Davis v. Butts,
290 F.3d 1297 (11th Cir. 2002); Reynolds v. Roberts, 251 F.3d 1350 (11th Cir. 2001) (“Reynolds
III”), cert. denied, 534 U.S. 1161, 122 S. Ct. 1171 (2002); Reynolds v. Roberts, 207 F.3d 1288
(11th Cir. 2000) (“Reynolds II”), cert. denied, 533 U.S. 941, 121 S. Ct. 2576 (2001); Reynolds v.
Roberts, 202 F.3d 1303 (11th Cir. 2000) (“Reynolds I”).
3
1352-55 (11th Cir. 2001) (“Reynolds III”), cert. denied, 534 U.S. 1161, 122 S. Ct.
1171 (2002); Reynolds v. Roberts, 207 F.3d 1288, 1292-93 (11th Cir. 2000)
(“Reynolds II”), cert denied, 533 U.S. 941, 121 S. Ct. 2576 (2001); Reynolds v.
Roberts, 202 F.3d 1303, 1305-07 (11th Cir. 2000) (“Reynolds I”). We assume the
reader’s familiarity with that history but will summarize it briefly before moving
to the particular facts and events material to this appeal.
In 1985, the named plaintiff brought this suit against ALDOT, SPD, and
various state officials on behalf of all black employees and applicants for
employment with ALDOT. The complaint alleged racial discrimination in
violation of the Fourteenth Amendment to the Constitution, Title VII of the Civil
Rights Act of 1964 (42 U.S.C. §§ 2000e to 2000e-17), and 42 U.S.C. § 1981. The
district court certified three plaintiff classes: (1) a class of all black merit
employees of ALDOT who had been denied promotion; (2) a class of all black
non-merit employees who had unsuccessfully sought employment as merit
employees; and (3) a class of all black non-employees who had unsuccessfully
sought employment as merit employees. Reynolds II, 207 F.3d at 1292 n.2. The
district court later combined the second and third classes into a single class.
Reynolds III, 251 F.3d at 1353 n.2.
4
In 1993, the parties reached a partial settlement and presented a proposed
consent decree to the district court. Before a fairness hearing was held, a group of
white ALDOT employees moved the court for leave to intervene on behalf of
ALDOT’s employees who were not part of the plaintiff classes.2 The intervenors
objected to certain race-conscious provisions in the proposed consent decree. The
parties agreed to divide the proposed consent decree into three separate parts, and
the part that the parties call Consent Decree I was approved in March 1994.3 Id. at
1354.
The appeal before us concerns Article Fifteen of that 1994 consent decree,
which provides for the reclassification of certain multi-grade jobs within ALDOT.
Multi-grade jobs consist of several levels within a single job classification that
2
The district court certified the intervenors as a class, consisting of all non-black merit
system employees of ALDOT, in April 1998. Reynolds II, 207 F.3d at 1293. The intervenors
join ALDOT here as appellants.
3
The portions of the 1994 proposed consent decree that the parties call Consent Decrees II
and III have not been approved by the district court, except for one paragraph of Consent Decree
II that the district court approved and adopted in Reynolds v. Ala. Dep’t of Transp., 996 F. Supp.
1118, 1119-20 (M.D. Ala. 1998). We reversed its order doing so in Reynolds III, holding that the
court erred in sua sponte entering an injunction that affected the legal rights of the parties without
receiving evidence and ruling upon the objections of the affected parties or obtaining their
consent to the injunction. 251 F.3d at 1352. Our opinion in that appeal also noted that what the
parties call Consent Decrees II and III are not really consent decrees, but merely proposed
consent decrees that only the plaintiffs currently support. Id. at 1356-57.
Any further reference in this opinion to the “consent decree” is to that portion of the
original proposed decree that the district court approved in 1994.
5
correspond to differences in duties, responsibilities, and qualifications. Article
Fifteen, ¶ 3(a) requires SPD to study certain multi-grade job classifications,
including the jobs of Engineering Assistant (EA) and Civil Engineer (CE).4
When the study began in 1994, those jobs had several classification levels: EA
was classified into three levels (I, II, and III), and CE was classified into four
levels (I, II, III, and IV).
The consent decree provides that upon completion of the job classification
study, the jobs may be collapsed or restructured in order to comply with the
decree. Article Fifteen, ¶ 3(b) requires:
In the event such job classification study discloses that existing
distinctions in the levels of multi-grade jobs do not reflect actual
differences in duties, responsibilities, or qualifications, the jobs will
be collapsed or restructured so that (i) they will reflect the actual
distinctions, if any, shown by the study and (ii) are capable of being
administered and utilized so that only persons occupying that
classification perform the duties associated with it on a regular or
non-emergency basis.
In practice, after completing the study, SPD made recommendations to the
State Personnel Board about how to restructure ALDOT jobs in the manner
required by Article Fifteen.
4
Article Fifteen, ¶ 3(a) requires SPD to conduct a study of the following multi-grade job
classifications: Engineering Assistant, Civil Engineer, Professional Civil Engineer, Highway
Maintenance Technician, Highway Maintenance Superintendent, Right-of-Way Specialist, and
Project Cost Auditor.
6
Pursuant to Article Fifteen, ¶ 3(b), upon completion of the job classification
study and consistent with its results, on April 17, 1996, SPD recommended and the
State Personnel Board approved a new classification structure for ALDOT. (The
specifics of the study and how SPD arrived at the new structure are discussed in
detail later in this opinion.) Among other recommendations, the new structure
called for the collapse of the former classifications of EA II and III into EA II/III,
of CE I and II into CE I/II, and of CE III and IV into CE III/IV.
The plaintiffs filed objections to the results of the job classification study in
December 1996. One of their objections was to the proposed restructuring of the
EA and CE jobs. The plaintiffs objected on the grounds that the proposed
structure was inconsistent with the empirical results of the SPD study and that it
did not satisfy the requirements of ¶ 3(b) of the consent decree. They requested
that the district court modify SPD’s classification plan by collapsing all Article
Fifteen, ¶ 3(a) classifications so that there would be a single EA classification and
a single CE classification.
With the parties’ consent, the district court referred issues concerning the
job classification study to the magistrate judge for his report and
recommendations. The magistrate judge held an evidentiary hearing on the matter
on June 17 and 18, 1997. He reviewed the descriptions for jobs in the new
7
classification structure using a progression/promotion distinction (suggested by an
expert for the defendants as one possible way of differentiating between jobs),
with the “progression” label being applied when the job duties changed little
except in terms of complexity, responsibility, or difficulty, and the “promotion”
label being applied when the job duties changed to a higher level.
The magistrate judge concluded that the proper construction of ¶ 3(b) was
that in different levels of a job classification the employees may perform similar
duties as long as higher levels of the classification reflect true distinctions that are
more than just progressions in proficiency. He concluded that the proposed EA I
and EA II/III positions had no distinction other than proficiency in the
performance of the duties of the positions. Further, he concluded that the only
major distinctions between the CE I/II and CE III/IV positions were in the level of
the supervisory responsibilities and the level of the complexity of the jobs, and he
characterized those distinctions as only progressions in proficiency. Therefore, he
determined that SPD’s proposed classifications for EA and CE did not comply
with the consent decree. He recommended that the EA and CE jobs be
consolidated into single classifications, as the plaintiffs had proposed.
8
The defendants objected to the magistrate judge’s recommendations that the
EA and CE jobs be combined into single classifications.5 Along with their
objections, the defendants submitted an affidavit from their experts regarding
testing performed after the hearing had been completed. That affidavit supported
the defendants’ position that there were serious problems with the plaintiffs’
proposed classifications and the qualifying tests that would be used for hiring for
those new positions under the magistrate judge’s recommendations. Nevertheless,
on February 11, 1998, the district court adopted the magistrate judge’s
recommendations in their entirety without considering any further evidence – it
specifically refused to consider the affidavit submitted by the defendants – and
ordered the defendants to “implement a single engineering assistant classification
immediately” and “a single civil engineer classification immediately.”
The defendants appealed the district court’s order (this is that appeal).
However, the appeal was stayed from June 1999 until January 2002 while the
parties attempted to work out an alternative implementation for the multi-grade
classifications. When the parties’ attempt to settle the matter proved unsuccessful,
5
The plaintiffs also objected to the magistrate judge’s recommendation because the
magistrate judge accepted SPD’s restructuring plan for the other ¶ 3(a) jobs. However, EA and
CE are the only multi-grade jobs at issue in this appeal, because the district court, like the
magistrate judge, accepted SPD’s restructuring recommendations for the other ¶ 3(a) jobs.
9
the stay of the appeal was lifted. Although the appeal from the district court’s
February 11, 1998 order, which required the defendants to collapse the job
classifications, was stayed, the order itself was not.
Even though that order was not stayed, the defendants did not promptly
comply with it, either by implementing the new classifications for the two jobs
that are the subject of this appeal (EA and CE) or by implementing the approved
classifications for any other jobs listed in Article Fifteen, ¶ 3(a). In April 1998,
the plaintiffs moved to hold the defendants in contempt for failing to comply with
the requirements of Article Fifteen as to all jobs, including the two at issue here.
The plaintiffs asserted two grounds for contempt: the defendants’ failure to
comply with Article Fifteen, ¶ 3 of the consent decree, and their failure to comply
with the February 11, 1998 order.
On May 4, 1998, the district court entered a show-cause order requiring the
defendants to respond to the plaintiffs’ motion to hold them in contempt. The
defendants responded that they should not be held in contempt of either Article
Fifteen of the consent decree or the court’s February 11, 1998 order. They
maintained that they had complied with Article Fifteen, ¶ 3 of the consent decree,
by completing the job classification study and approving a classification plan, but
that they had failed to implement the new classification plan because of ongoing
10
proceedings related to it in the district court. The defendants also claimed that
they had, in fact, substantially complied with the February 11, 1998 order, and
were attempting to implement the order in a way that would assure a smooth
transition into the new classification structure.
Instead of proceeding to a hearing on the contempt motion, however, the
defendants agreed to implement the new classifications as required by the
February 11, 1998 order. On June 8, 1998, the district court entered an order
requiring the defendants to implement the expanded pay ranges for all of the new
classifications that were the subject of its February 11, 1998 order. The
defendants implemented the collapse of the EA and CE classifications and the
expanded pay ranges for the classifications and certified that they had done so to
the district court. They did not appeal the June 8, 1998 order.6
6
The June 8, 1998 order did not render this appeal moot, because it and the February 11
order addressed different aspects of the consent decree. The requirement that the jobs be
collapsed or restructured in the event that the job classification study showed that existing
distinctions in the jobs did not reflect actual differences between them is found in Article Fifteen,
¶ 3(b). Paragraphs 3(c) and (d) of Article Fifteen address broadening the pay ranges within the
new classifications, and ¶ 3(d) requires that the defendants assign persons to pay ranges which
reflect their years of service if levels in the jobs are collapsed. Although restructuring the job
classifications and implementing the new pay ranges are related, they are not the same thing. The
district court’s June 8 order, by its terms, only required the defendants to implement the new pay
ranges for the classifications. This order is distinct from the February 11 order which required
the defendants to implement the new classifications themselves.
The defendants’ compliance with the February 11 order also does not render this appeal
moot. Voluntary compliance with an injunctive order does moot an appeal if we cannot grant the
complying appellant relief. Burnett v. Kindt, 780 F.2d 952, 955 (11th Cir. 1986); Newman v.
11
Disputes about the Article Fifteen classifications continued, however, and
further proceedings eventually resulted in an omnibus civil contempt order issued
in January 2000, which found the defendants in contempt for failing to obey
aspects of the consent decree, including some provisions of Article Fifteen but not
the ones relating to the two classifications at issue in this appeal. That January
2000 order imposed deadlines for the defendants to comply with each article of the
consent decree. The defendants began paying contempt fines in February 2000
and continue to pay them at the present time.
II. DISCUSSION
A. THE DEFENDANTS’ FAILURE TO OBJECT TO THE DISTRICT
COURT’S USE OF NON-CONTEMPT PROCEEDINGS TO ENFORCE THE
DECREE
Alabama, 683 F.2d 1312, 1317 (11th Cir. 1982). Unlike the one in the present case, the
injunctive orders at issue in Burnett and Newman required the appealing parties to perform
discrete acts and were not continuing injunctions. In Burnett, a warden appealed from the district
court’s order that he make an inmate available for a parole hearing. 780 F.2d at 954. Because
the warden had voluntarily complied with the order, and the inmate had received the hearing and
been released on parole, we could not grant the complying warden relief; so, the appeal was
moot. Id. at 954-55. In Newman, the district court ordered hundreds of specifically named
inmates released after Alabama had not complied with orders designed to reduce overcrowding
conditions in state prisons. 683 F.2d at 1316. We held that the state’s appeal was moot because
the state had fully complied with the order. The injunction was not a continuing injunction but
an order for the state to perform discrete acts, and no action of ours could have changed what had
been done. Id. at 1317. In this appeal, by contrast, the injunction did not order discrete actions
that cannot be undone, but instead has ongoing application to job classifications that are being
applied and will continue to be applied in the future unless we overturn the order.
12
The defendants’ initial argument that the district court’s February 11, 1998
order must be vacated relies on Reynolds II. Their argument is: Because the
district court did not follow the proper contempt proceedings for enforcing
compliance with Article Fifteen, ¶ 3, including requiring the plaintiffs to move for
contempt, the district court erred in entering the February 11, 1998 order, just as it
erred in entering the order that was vacated in the Reynolds II appeal.
In Reynolds II, we emphasized that consent decrees, like all injunctions, are
to be enforced through the trial court’s civil contempt power. 207 F.3d at 1298
(citing In re Grand Jury Proceedings, 142 F.3d 1416, 1424 (11th Cir. 1998);
Newman v. Alabama, 683 F.2d 1312, 1317-19 (11th Cir. 1982)). We have spelled
out the procedures for enforcing consent decrees several times. See Thomason v.
Russell Corp., 132 F.3d 632, 634 n.4 (11th Cir. 1998); Wyatt ex rel. Rawlins v.
Rogers, 92 F.3d 1074, 1078 & n.8 (11th Cir. 1996); Newman, 683 F.2d at 1318. If
the plaintiffs believe that the defendants are failing to comply with a decree, in
order to enforce it the plaintiffs must move the court to issue an order for the
defendants to show cause why they should not be adjudged in civil contempt and
sanctioned. Reynolds II, 207 F.3d at 1298. The show cause motion should cite
the injunctive provisions at issue and set out that the defendants have refused to
obey the decree. Id. If satisfied that the plaintiffs’ motion states a case for non-
13
compliance, the court should order the defendants to show cause why they should
not be held in contempt and schedule a hearing on it. Id.
At the show cause hearing, under the Reynolds II procedure, if the
plaintiffs prove what they have alleged in their motion, the defendants are given
the opportunity to respond. After that, the court must determine whether the
defendants have complied with the provision at issue and, if not, decide what
sanctions are necessary to ensure compliance. Id. In Reynolds III, we reiterated
that these are the proper procedures to be followed for the enforcement of consent
decrees. 251 F.3d at 1358 n.14.
In Reynolds II, these same plaintiffs moved the district court for a
temporary restraining order to prevent ALDOT from implementing three grievance
resolutions for white employees, resolutions that had resulted from procedures
provided in Article Nineteen of the consent decree. 207 F.3d at 1294, 1296. The
plaintiffs alleged that implementing those grievance resolutions would violate the
decree. The district court entered the temporary restraining order. The plaintiffs
then applied for a preliminary injunction, asking the court to extend the temporary
restraining order until their application could be heard. The court extended the
order and scheduled a hearing on the application for a preliminary injunction. Id.
14
at 1296. The hearing proceeded as scheduled, the court issued the preliminary
injunction, and the intervenors appealed. Id.
After the hearing but before the district court ruled in Reynolds II, the
plaintiffs applied for another preliminary injunction, asking the court to prevent
ALDOT from implementing any grievance resolutions involving non-black
employees – not just the three specifically involved in their first application for
preliminary relief – because doing so would violate the consent decree. Id. The
district court treated that second application as one for a permanent injunction and
held hearings. Instead of granting the application for a permanent injunction, the
court sua sponte granted the plaintiffs declaratory relief. Id. at 1296-97. The
court did so because it determined that issuing an order enjoining ALDOT from
hearing the grievances of all non-black employees would be inappropriate. It
reached that conclusion because we had clearly instructed that consent decrees,
like other injunctions, are to be enforced through the district court’s contempt
power. Id. at 1297. We vacated the district court’s declaratory relief order in
Reynolds II because the court had failed to follow the appropriate contempt
procedures for enforcing a consent decree. Id. at 1300-01.
And we should do the same thing in this appeal, the defendants say. The
problem for them is that they did not object in the district court to its failure to
15
follow the proper procedures for enforcing a decree. “A general principle of
appellate review is that an appellate court will not consider issues not presented to
the trial court.” McGinnis v. Ingram Equip. Co., 918 F.2d 1491, 1495 (11th Cir.
1990) (en banc).
The defendants seek to excuse their failure to object to the defective
procedure in this case by saying they failed to object to it in Reynolds II as well,
but this Court nonetheless reversed the district court for doing the same thing it
did here. The opinion this Court issued in Reynolds II does not indicate that the
defendants failed to preserve the defective procedures issue in the district court,
but the plaintiffs don’t seem to deny it, either. The question arises as to whether
there is an implicit holding in Reynolds II that for some undisclosed reasons the
lack of an objection to the district court’s failure to follow proper procedures for
enforcing the consent decree in that case did not bar consideration of that issue on
appeal. We need not answer that question, because the circumstances regarding
the failure to object are sufficiently different in the two cases that they are
distinguishable.
Even if there is an implicit holding in Reynolds II applying some kind of
exception to the contemporaneous objection rule in that case, the prior panel
precedent rule does not require us to expand that exception beyond the particular
16
circumstances of that case, and we decline to do so. Because the contemporaneous
objection rule is critically important to the proper functioning of our judicial
system, see United States v. Pielago, 135 F.3d 703, 709 (11th Cir. 1998), any
exceptions to it should be narrowly construed and seldom applied. The key
procedural facts before us in this appeal differ from those in Reynolds II, because
here the defendants did not merely fail to object to application of the wrong
procedures; they were complicit in their application. Unlike Reynolds II, this
appeal does not involve a challenge to a sua sponte action by the district court.
Instead, the procedure complained of in this appeal is one the defendants as well
as the plaintiffs sought. This error in this case approaches the stage of invited
error. Whether it gets there is something we need not decide, because what
happened here is different enough from what happened in Reynolds II to release
us from any obligation to follow an implicit holding of that decision, if there be
one, concerning the simple failure to object to the procedures used.
Here, when the plaintiffs filed their objections to the results of the job
classification study and requested that the court modify the classification structure
so that there would be single classifications for the EA and CE jobs, the
defendants filed their response asking the court to accept SPD’s plan as it was,
maintaining that the “classification structure is due to be approved and
17
implemented.” After the district court referred the issues regarding the job
classification study to the magistrate judge, the defendants in a letter to the
magistrate judge “urge[d] the Court to consider and rule on the Article Fifteen
issues without further delay.” When the plaintiffs sought additional discovery
related to the Article Fifteen issues, the defendants in opposing such discovery,
“submit[ted] that the Court should promptly schedule a hearing to resolve all
issues in the multigrade job study.” Finally, in a memorandum to the court
following the hearing on the study, the defendants again argued that SPD’s
classification plan complied with Article Fifteen of the consent decree and that
“[t]he new classification structure should be approved.” Instead of opposing use
of the procedures being employed, the defendants urged that they be employed to
resolve the dispute in their favor.
The defendants’ affirmative requests for the magistrate judge and the district
court to approve SPD’s proposed classification plan and allow implementation of
the plan over the plaintiffs’ objections, using the procedures the court was
employing, make this situation distinguishable from the one in Reynolds II.
There, the district court sua sponte granted the plaintiffs declaratory relief after
they requested the second preliminary injunction. Reynolds II, 207 F.3d at 1296-
97. Although the defendants apparently did fail to object to the procedures
18
employed in Reynolds II, the opinion in that case does not indicate that they were
otherwise a party to the court’s error. In this case, the defendants urged the court
to take action on the job classification study using the procedures it was
employing, which did not include conducting contempt proceedings, and now they
seek to undo on procedural grounds the unfavorable result of the very proceedings
that they spurred on. There is a difference between protesting relief being sought
by the opposing party when the court is using improper procedures (Reynolds II),
and urging relief favorable to yourself from use of those same improper
procedures (this case).
Accordingly, because the procedural facts in this appeal are different from
those in Reynolds II, we are free to and do apply the contemporaneous objection
rule and will not overturn the district court’s February 11, 1998 order because of
the court’s failure to employ the proper procedures to enforce Article Fifteen, ¶
3(b) of the consent decree. Instead, we will review that order on the merits,
deciding whether the district court erred in interpreting and applying Article
Fifteen, ¶ 3(b) to the proposed job classifications.
19
B. THE DISTRICT COURT’S INTERPRETATION AND APPLICATION OF
ARTICLE FIFTEEN, ¶ 3(B) OF THE CONSENT DECREE
1. Standard of Review
We apply the same rules that govern contract interpretation when we
interpret a consent decree, because a consent decree is essentially a form of
contract. Reynolds I, 202 F.3d at 1312-13. The inquiry in this case involves both
the district court’s interpretation of what the consent decree requires and its
application of that interpretation to SPD’s recommendations based on the job
classification study. As such, our inquiry here is a mixed question of law and fact,
and those are reviewed de novo. See Int’l Ins. Co. v. Johns, 874 F.2d 1447, 1453
(11th Cir. 1989) (interpretation of contract and application of it to the facts is
mixed question of law and fact reviewed de novo); Backar v. Western States
Producing Co., 547 F.2d 876, 883-84 (5th Cir. 1977) (same)7; see also 9 Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2589 (2d ed.
1995) (mixed questions of law and fact are “freely reviewable”). If any relevant
facts were disputed, we would be required to accept the district court’s
factfindings unless they were clearly erroneous, but there are no disputed facts.
7
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to
the close of business on September 30, 1981.
20
The question turns on interpretation of the consent decree and application of it to
the facts.
The plaintiffs bear the burden of proof on their objections. For the reasons
we have discussed, the defendants cannot now put the district court in error for its
failure to utilize contempt proceedings, but it is relevant that a motion by the
plaintiffs asking for the defendants to be held in contempt (technically a motion
for issuance of a show cause order) would have been the proper way for the
plaintiffs to object to the defendants’ job classification plan. See Reynolds II, 207
F.3d at 1298. That is relevant, because if that procedure had been followed the
plaintiffs would have had the burden of proving by clear and convincing evidence
what they alleged in their motion. See Riccard v. Prudential Ins. Co., 307 F.3d
1277, 1296 (11th Cir. 2002) (“A finding of civil contempt . . . must be supported
by clear and convincing evidence.”); United States v. Money, 744 F.2d 779, 780
(11th Cir. 1984) (party moving for contempt must show by clear and convincing
evidence that a court’s order has been violated). The plaintiffs’ failure to follow
the proper procedure should not, and does not, relieve them of their burden to
prove by clear and convincing evidence that the defendants’ job classification plan
fails to comply with Article Fifteen, ¶ 3(b) of the consent decree. The district
court erred in failing to apply that standard of proof, but it matters little, if at all,
21
because the facts are not really at issue. We will apply the applicable legal
standard to them ourselves.
2. The Job Study and SPD’s Proposed Classifications
Article Fifteen, ¶ 3(b) requires that jobs be collapsed or restructured “[i]n
the event [the] job classification study discloses that existing distinctions in the
levels of multi-grade jobs do not reflect actual differences in duties,
responsibilities, or qualifications.” If the job classification study does disclose
that, the jobs are to be collapsed or restructured so that (i) they “reflect the actual
distinctions, if any, shown by the study,” and (ii) they “are capable of being
administered and utilized so that only persons occupying that classification
perform the duties associated with it on a regular or non-emergency basis.” At the
hearing the magistrate judge conducted on the matter in June 1997, the plaintiffs
and defendants agreed that the dispute was over whether SPD’s proposed
classifications complied with parts (i) and (ii) of ¶ 3(b). The issues, then, are
whether SPD’s proposed classifications reflect the actual distinctions shown by
the study and whether the new jobs are capable of being administered or utilized
so that only persons occupying the jobs perform the duties associated with them
on a regular basis.
22
After investigating several methods for performing the job classification
study, SPD selected the Position Analysis Questionnaire (PAQ) as the method for
conducting it. Before the PAQ itself could be administered, SPD analysts
gathered information from all ALDOT employees about their job duties, using
questionnaires called Form 40s. The SPD analysts sorted the Form 40s into
“functional areas” for each classification, based on the type of work being
performed, the location in which the incumbent worked, and the job of the
incumbent’s supervisor. For example, the EA I classification included functional
areas such as Bridge Inspection, Materials Tester, and Surveying. SPD then
administered the PAQs to a random sample of ALDOT employees in the
functional areas in order to obtain information about the work being performed
within each classification.
As part of the PAQ study, analysts interviewed the incumbents in the jobs to
gather additional information about the job, including a brief description of the
duties of the position and detailed information about the skills required to perform
it. The PAQ is designed to obtain information about a job in six areas: where and
how information needed for the job is gained; what mental processes (like
reasoning, decision-making, and planning) are needed for the job; what physical
activities are required for the job; what relationships with other persons are needed
23
to perform the job; in what physical and social context the job is performed; and
information about any other important job characteristics. The PAQ also requires
the interviewee to rate the importance of the informational areas to performance of
the job.
The PAQ results were then scored and analyzed by SPD’s experts, Jeanneret
and Associates, and specifically by Dr. Morton McPhail. Jeanneret and Associates
assigned PAQ “points” for each individual PAQ interview and reported the results
to SPD. The PAQ points represent the different attributes and requirements of a
job, such as reading and decision-making, rather than the job’s specific duties.
The PAQ points were then grouped both by average for each classification and by
averages within each functional area. Jeanneret and Associates provided SPD
with some suggestions of other items to consider in looking at the PAQ results,
such as how the jobs were actually structured, ALDOT’s organizational structure,
the relationships between the jobs for hiring purposes, and the particular needs of
ALDOT. Dr. McPhail advised SPD on interpreting the results of the PAQ study.
He suggested to SPD that a difference of 100 PAQ points between jobs was
probably a meaningful distinction and would constitute a real difference between
them. He testified at the hearing that he suggested from that “starting point,” SPD
24
could then evaluate the extent to which the difference was meaningful in the
context of the ALDOT jobs.
Starting with the 100-point differential, SPD eliminated any outliers shown
in the data. It determined, for example, that some positions in the EA
classification, such as Drill Crew Chief 2 and 3, belonged in the CE classification.
After eliminating outliers, SPD determined that the PAQ range for the EA
classification was from 470.33 points to 674 points. This range indicated to SPD
that there should be two classes for EA. SPD concluded that the EA I and III jobs
were relatively non-overlapping. SPD also concluded that EA II and III should be
combined because the EA II jobs were a closer match for EA III than EA I. For
the jobs in the CE classification, the average points were as follows: CE I, 711.03;
CE II, 725.32; CE III, 797.15; CE IV, 828.76. SPD concluded the average PAQ
points supported combining CE I and II into a single job classification and CE III
and IV into a single job classification. The break of 71.83 points between the CE
II and III averages indicated to SPD that those classes should not be combined.
Dr. McPhail testified at the hearing before the magistrate judge that the proposed
classifications were “not inconsistent” with the PAQ points and study.
Once the PAQ analysis was complete, SPD analysts and industrial
psychologists considered the appropriate classification levels within each job.
25
They considered the following factors in determining what changes should be
made in the classification structure: (1) the PAQ points and analysis thereof; (2)
ALDOT’s organizational structure; (3) ADLOT’s needs for its classification
structure; (4) SPD’s knowledge of the duties performed by each classification
obtained through actually conducting the PAQ interviews; (5) SPD’s
understanding of ALDOT’s internal structure and needs; and (6) information
gathered through studying the structures of transportation departments of other
states.
SPD then wrote the new job descriptions for the proposed classification
structure. The new EA I position requires limited skill in assisting on engineering
projects and is the entry level for engineering positions in design, construction,
traffic surveying, and materials testing. Some tasks performed by employees in
the EA I position include serving as rodmen or targetmen on survey parties,
inspecting simple construction project activities, counting and classifying motor
vehicles, performing simple materials testing, and assisting in the inspection of
bridges and bridge structures. According to the job description, the EA I position
is distinguished from other engineering positions in that incumbents need no prior
experience and receive training in an engineering specialty area. The work is
frequently reviewed by a supervisor.
26
The EA II/III position, in contrast, involves moderately complex routines in
instrument operations, testing, drafting, surveys, and computing. Employees draft
plans for bridge components, serve as lead instrument workers on survey parties,
serve as highway or bridge inspectors by inspecting building materials, perform
moderately complex field and laboratory tests, and serve as party chiefs in parties
collecting traffic data. EA II/III employees may supervise the work of a few less
skilled assistants. The SPD job description for EA II/III distinguishes the position
from EA I in that EA II/III employees are supposed to be fully functional within a
specialty area such as materials testing, construction inspection, surveying, or
transportation planning activities.
In the CE I/II position, employees are assigned as assistant project engineers
responsible for supervising the construction and inspection of simple to
moderately difficult roadway and bridge projects, producing complete sets of
roadway plans, supervising transportation planning activities, or overseeing
materials testing. They supervise engineering parties, assist in planning survey
work and may serve as assistant project engineers on large, complex roadway and
bridge projects. The SPD specifications distinguish this position from EA II/III in
that CE I/II employees are assigned more complex projects which typically
involve some supervisory duties.
27
Employees in CE III/IV positions are assigned as senior project engineers
and oversee complex roadway and bridge construction projects. They direct the
preparation of sets of finished bridge and culvert plans, supervise the activities of
groups of roadway plan designers, supervise testing activities and foundation
investigations, and supervise bridge inspection activities within an operating
division. Additionally, CE III/IV employees work with utility companies and the
public regarding utility work within the state right of way, design highway
facilities and buildings, and review plans and specifications for large public
buildings. SPD distinguishes the CE III/IV position from the CE I/II position
because CE III/IV employees are assigned complex projects that involve
substantial supervisory responsibility over other employees.
3. Interpretation and Analysis
Before determining whether the plaintiffs met their burden of establishing
by clear and convincing evidence that the defendants failed to comply with Article
Fifteen, ¶ 3(b) of the consent decree, we must determine exactly what constitutes
compliance with it. The phrase “actual distinctions, if any, shown by the study” in
¶ 3(b)(i) must be understood as referring back to the first part of ¶ 3(b), which
mandates restructuring when “existing distinctions” do not reflect “actual
differences in duties, responsibilities, or qualifications.” It follows that focusing
28
exclusively on the duties of the proposed classifications ignores the parties’ intent
that the new classifications may also be based on differences in responsibilities
and qualifications. All three elements – duties, responsibilities, and qualifications
– may be sources of difference between the new classifications, as long as the jobs
are, under ¶ 3(b)(ii), “capable of being administered and utilized so that only
persons occupying that classification perform the duties associated with it on a
regular or non-emergency basis.” Paragraph 3(b)(ii), however, does not require
that employees holding two different jobs have none of the same duties. Instead, it
prevents employees from performing duties on a regular basis that are not
associated with the jobs that they hold.8
At the hearing, the plaintiffs attempted to show that SPD’s proposed
classification structure did not comply with the consent decree in two ways. First,
they argued that the structure was not in keeping with the empirical results of the
job classification study and so did not comply with Article Fifteen, ¶ 3(b), because
fewer than 100 PAQ points separated the new jobs in SPD’s proposed classes.
They introduced evidence that the PAQ points associated with EA I and EA II/III
8
As our discussion indicates, we do not use the progression/promotion distinction that the
magistrate judge employed. The decree itself provides the method for determining when jobs
must be collapsed, and the progression/promotion distinction is not particularly useful in
determining differences between jobs. Instead of attempting to characterize the difference
between jobs as a progression or promotion, we find it more helpful to focus directly on whether
there are meaningful distinctions in duties, responsibilities, and qualifications.
29
and with CE I/II and CE III/IV overlapped. However, Dr. McPhail and other
witnesses testified that an overlap in points or a difference of fewer than 100 PAQ
points between jobs, standing alone, does not necessarily mean that jobs should be
combined. Instead, an overlap in PAQ points should be evaluated in light of
whether the distinction between the classifications is a meaningful one. Dr.
McPhail also testified that the determination of whether an overlap of PAQ points
results from anomalies in the data or an actual lack of distinction between the jobs
cannot be made by looking at the PAQ points alone.
The second way in which the plaintiffs attempted to prove that SPD’s
proposed classification structure did not comply with the consent decree is by
showing that the new jobs were not “capable of being administered and utilized so
that only persons occupying that classification perform the duties associated with
it on a regular or non-emergency basis.” That was shown, the plaintiffs asserted,
by the fact that a strict division between duties in the proposed classifications was
impossible. However, a strict division between the jobs is not required in order
for the classification to comply with ¶ 3(b)(ii), because, as we have explained, that
subparagraph requires only that employees not regularly perform duties that are
not associated with their jobs. Contrary to the plaintiffs’ assertion, it does not
impose an additional requirement that no duty can be assigned to multiple jobs.
30
The plaintiffs simply did not provide clear and convincing evidence that the
proposed classifications do not reflect the actual distinctions shown by the study.
They offered no evidence at all other than the PAQ point differential of fewer than
100 points between the jobs and the overlap in points between some jobs to
support their assertion. They offered no explanation based on any evidence before
the court that a difference of fewer than 100 PAQ points between jobs necessarily
means that the jobs must be collapsed. There is no evidence in the record to
dispute the defendants’ evidence that a differential of fewer than 100 PAQ points,
standing alone, does not mean that jobs must be combined. Dr. McPhail, the
defendants’ expert, from whom the plaintiffs drew the argument about the 100-
point differential, explained that it was only a “starting point,” and that additional
factors and circumstances must be considered in determining whether there was an
actual difference between two jobs. The plaintiffs presented no evidence to
dispute his testimony on that issue. The PAQ point results themselves are not
clear and convincing evidence that the resulting structure does not comply with
the decree.9 We emphasize that PAQ points go to job attributes, such as reading
9
The plaintiffs’ brief focuses on overlapping PAQ points in the EA and CE classifications
and the PAQ points for some of the specific functional areas within those classifications. They
contend that virtually none of the positions (or functional areas) in the two classification levels
proposed by the defendants satisfied the preliminary 100-point differential. The plaintiffs detail
how some of the positions rated higher in PAQ points at the lower levels of the classifications
than they did at the higher levels of the classifications. For example, the plaintiffs point out that
31
and decision-making. Under ¶ 3(b)(i), whether a distinction between two jobs is a
meaningful one is determined by looking to duties, responsibilities, and
qualifications. The job classification study here did that.
Moreover, the job descriptions themselves do reveal actual distinctions
between the jobs. The EA I and II/III positions are distinguishable by their duties,
because EA I employees serve as rodmen while EA II/III employees serve as lead
instrument workers, a position for which ALDOT has a formal training course.
The EA II/III position includes an additional qualification that the EA I position
does not: EA II/III employees must be fully functional within a specialty area.
The EA II/III position also involves different responsibilities than EA I: the EA
II/III employees may supervise the work of a few less skilled assistants, while
there is no corresponding supervisory responsibility for EA I employees.
The CE I/II and III/IV positions show similar distinctions. The duties are
different: for example, CE I/II employees produce sets of roadway plans, while CE
a Materials Tester at the EA I level had 489.67 PAQ points, and a Materials Tester at the EA
II/III level had only 474.5 points. This argument misses the mark for two reasons. First, as we
have said, the PAQ points are just a starting point from which to evaluate distinctions between
jobs. The fact that very few of the functional areas actually showed a 100-point differential
between levels does not mean that they must be collapsed. Second, the consent decree requires
that the entire classifications of EA and CE be studied and restructured. The anomalies the
plaintiffs complain about are included in the averages for the EA and CE classification levels,
and the averages in the classification levels are more indicative of differences between jobs in
those levels than isolated examples already taken into account in calculating those averages.
32
III/IV employees supervise the activities of roadway plan designers. Additionally,
CE III/IV employees work with utility companies and design highway facilities
and other public buildings, and there is no analogue to this duty in the CE I/II
description. The levels of responsibility between the positions are also distinct:
CE I/II employees serve as assistant project engineers, and CE III/IV employees
serve as senior project engineers and have substantial supervisory ability over
other employees.
The plaintiffs also did not meet their burden of providing clear and
convincing evidence that the jobs are not capable of being administered so that
only persons occupying the jobs perform the duties associated with them on a
regular basis. Dr. Bernard Nickels, an industrial psychologist employed by SPD,
testified that he believes the proposed structure can be properly administered by
ALDOT. The plaintiffs’ chief argument on this issue centered on the EA I and
II/III jobs and the plaintiffs’ contention that those jobs are not capable of being
administered under the consent decree because members of survey parties
necessarily must perform as both rodmen and instrument men on occasion.
However, although Dalmus Davidson, Division Engineer for ALDOT’s First
Division, testified that as a survey party chief he would have a problem if
employees were not allowed to work out of their job classification, he also
33
testified that the rodman on a survey crew would not normally be allowed to use
an instrument and function as an instrument man. Importantly, he also said that he
would be capable of prohibiting an EA I employee from using an instrument. No
reasonable factfinder could conclude from the evidence that the plaintiffs proved
that the jobs are not capable of being administered under the consent decree.
In light of the entire job classification study, the testimony about the nature
of the PAQ study and points, the job descriptions, and the testimony about
whether the new jobs are capable of being administered under the consent decree,
no reasonable factfinder could find that the plaintiffs carried their burden of
showing by clear and convincing evidence that SPD’s proposed classifications do
not comply with Article Fifteen, ¶ 3(b) of the consent decree. The district court
erred in concluding that the proposed classifications did not comply and in
ordering the defendants to implement a single EA and single CE classification
over the defendants’ objections. As a result, we are required to vacate its February
11, 1998 order (the only one before us in this appeal) and remand the case for
34
further proceedings consistent with this opinion.10 Before doing that, we offer
some concluding thoughts.
III. SOME CONCLUDING THOUGHTS
Appellate courts ordinarily take cases as they come in the normal flow of
the docket and dispose of them by deciding one issue at a time. That is as it
should be, and we have done that here. Sometimes, with its head down, focused
on the job at hand, a court does not consider and discuss the larger problems
backlit by the dispute before it. Like an elephant in the parlor, however, the
problems of the Reynolds litigation have become too big to ignore.
And the elephant won’t go away. Since the case began there have been more
than four dozen appeals or petitions for review or mandamus filed in connection
with it. This is the sixth appeal in which we have issued a published opinion, and
we have at least eight more separate appeals or petitions stemming from the case
10
The intervenors have asked this Court, if we vacate the district court’s February 11,
1998 order, to permit the defendants to prospectively implement their proposed multi-grade
classifications. Prospective implementation would permit ALDOT employees currently in the
combined EA and CE classifications to retain their current status and pay scale under the state
merit system, while allowing the defendants to implement their study from this point forward.
We think that the appropriate way in which our decision should be implemented, however, is a
matter best left to the district court, with its broad discretionary power. See Lemon v. Kurtzman,
411 U.S. 192, 200, 93 S. Ct. 1463, 1469 (1973) (citing Swann v. Charlotte-Mecklenburg Bd. of
Educ., 402 U.S. 1, 15, 27 n. 10, 91 S.Ct. 1267, 1275, 1282 n.10 (1971)). Therefore, we decline
to issue any instructions as to how SPD’s classification structure should be implemented insofar
as those employees who are already in the combined classifications are concerned.
35
that are pending before us now. Of course, the burden on the district court, which
has had to carry most of the load, has been even greater.
After eighteen years of hearing following hearing, order after order, appeal
and more appeals, it is fair to ask what has been accomplished and what remains to
be done. The answer, it appears, is not enough has been accomplished and a lot
remains to be done. This unwieldy litigation has been afflicting the judicial
system and draining huge amounts of public funds from the State of Alabama for
much too long. The amounts are staggering. Fifty million dollars in public funds
has been spent on attorney’s fees alone in the case.11 An additional $62.5 million
has been paid out in consultant and expert costs, bringing the total litigation costs
to the State of Alabama to more than $112 million, and that cost is growing at a
rate of around $500,000.00 each and every month. The figure does not even
include the close to $13 million in contempt fines that the State has paid and
continues to pay at the rate of $250,000.00 per month.12 If the contempt fines are
11
According to the defendants, that total breaks down as follows: $13.05 million for the
defendants’ attorneys; $6.24 million for the intervenors’ attorneys; and $30.55 million for the
plaintiffs’ attorneys. Those are the figures given in the defendants’ supplemental letter of March
25, 2003. More attorney fees have been incurred since then.
12
These figures are drawn from the defendants’ supplemental filings with this Court. The
figures are undisputed, except that the plaintiffs’ supplemental filings say that the attorney’s fees
total is overstated. However, the only specifics the plaintiffs offer is their assertion that $5.5
million of that total includes an amount the defendants paid into escrow for future work by
plaintiffs counsel related to payout of claims settlement amounts (discussed in the next paragraph
of this footnote). Maybe so, but it is still public funds that will be paid out as attorney’s fees.
36
included in the total, the case has cost the taxpayers of the State of Alabama $125
million so far, and the tab is increasing at the rate of $750,000.00 per month.13
Notwithstanding all of the public funds that have been poured into this
litigation, and the judge years of effort that have gone into it, much remains to be
done. There are fifteen articles of the consent decree for which contempt fines
have been imposed. There has been a finding or stipulation of compliance in
regard to only three of those fifteen articles. Of the remaining twelve articles,
contempt fines have been suspended by agreement pending a hearing on the
defendants’ motion for a finding of compliance in regard to six. As to the other
Additionally, the plaintiffs state the total the defendants have provided for the plaintiffs’ fees
includes litigation support and document control work that the plaintiffs’ counsel performs in-
house, while the total the defendants have provided for their own counsel does not include
litigation and document control work, because the defendants use separate firms for that work.
However, the plaintiffs do not specify how much of the total the defendants attribute to attorney’s
fees is actually for litigation support and document control. And, in any event, it is still cost
being paid with public funds.
13
This $125 million cost total does not include the roughly $56.8 million the State has
paid into a fund for settlement of the class members’ claims ($48.45 million to the promotions
class of plaintiffs and $8.35 million to the intervenors’ class). If that amount is included, the cost
to the State exceeds $181 million.
Although the State has paid the $56.8 million in settlement, precious little of that money
has actually gone to any class members yet. As of July 1, 2003, except for eighteen members of
one engineering class, none of the settling class members had received a penny in compensation.
However, we have been assured that payouts to the settling class members will begin soon.
37
six articles, there are no pending requests for stipulation or for a finding of
compliance, and contempt fines are mounting.14
The consent decree was originally set to expire two-and-a-half years ago on
December 31, 2000. The district court extended that deadline to December 31,
2004 for certain articles and provisions, and to December 31, 2006 for others. The
defendants, through their counsel in this appeal, have represented to this Court
that they believe they can fulfill some of the remaining requirements of the
consent decree in “perhaps one year or less,” and the others “perhaps by 2005.” 15
Supp. Letter of Defendants at 5, 6. When we asked the parties for supplemental
letters concerning the status and cost of the Reynolds litigation, the Governor of
Alabama also filed one in which he committed his administration to “quickly and
fully implement[ing] a department that is race-neutral in its operation.” Supp.
Letter of Governor Riley at 2. We consider that an encouraging sign and expect
14
The summary contained in this paragraph is drawn from information that the plaintiffs
supplied which the defendants have not disputed.
15
The defendants have not always been as committed to the fulfillment of the
requirements of the consent decree as they now profess to be. In 1998, for example, the district
court found a “defiant recalcitrance” on the part of ALDOT to comply with Article Fifteen, as
evidenced by instructions issued by ALDOT’s Assistant Director that “all efforts to implement
[the new classification structure required by Article Fifteen] should be stopped at once” and that
“efforts to avert this action should be pursue with fervor.” The district court characterized the
defendants’ efforts and the Assistant Director’s justification of them as “outright refusal to
comply with Article XV.”
38
that the Governor’s commitment will be reflected in the speed with which the
defendants comply with the remaining provisions of the consent decree.
The plaintiffs, through their counsel, have pledged to help bring this case to
a conclusion at the earliest time, and towards that end have represented that they
are “open to any reasonable modifications [to the consent decree] that will close
this case at the earliest practicable opportunity.”16 Supp. Letter of Plaintiffs at 14,
15. We expect the parties to act in accordance with their representations to us, and
the district court should use all lawful means to ensure that they do.
As we explained in another long-standing case involving a consent decree
entered into by a governmental entity, while protecting the constitutional rights of
minorities is an important duty of federal courts, woven throughout the
Constitution is a commitment to democratic self-rule through officials answerable
to the people. Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d 1548, 1574-75 (11th
Cir. 1994). Federal court oversight of and interference in the operations of a state
government department or agency “should be as narrow and short-lived” as
fulfilling the duty to eradicate discrimination allows. Id. Federal courts should
16
This position is a new one for the plaintiffs who, in the past, have not been as open to
modifications of the consent decree. See Reynolds v. McInnes, ___ F.3d ____ , No. 02-14228
(11th Cir. July 22, 2003) (“Reynolds VI”) (affirming the district court’s modification of the
consent decree which was opposed by the plaintiffs).
39
not be in the business of running important functions of state government for
decades at a time.
We can only rule on issues presented in appeals that come before us. The
district court, because of the task assigned to it in our judicial system, and owing
to its greater familiarity with the case, has the primary responsibility for taming
this beast of a case. All reasonable and appropriate efforts to that end will be
welcomed in this Court.
Beyond general encouragement, we offer two suggestions for the district
court’s consideration. One is that if the judicial time and effort required to bring
this litigation to a proper end in a reasonably prompt manner exceeds that which
the district court judge with his full regular docket can devote to the case, he may
wish to consider seeking help from other judges either inside or outside his own
district. Some of the issues that remain to be resolved are so interwoven that they
may not be appropriate for parceling out to other judges. Others, however, may be
capable of being handled by other judges. To suggest that resolution of this case
may take more judicial resources than a single judge is able to devote is not to
disparage the judge who has been shouldering the burden alone, but instead is
merely to recognize the size of the thankless task at which the judge has resolutely
labored for so long. Beyond obtaining help from other judges, the district court
40
may also wish to consider increased use of special masters where appropriate. See
F.R.Civ.P. 53(b); see also Ensley Branch, 31 F.3d at 1574.
Our second suggestion has to do with attorney’s fees. Under the consent
decree, counsel for the plaintiff class is entitled to “reasonable fees and expenses
for work done.” We are informed by the defendants that class counsel for the
plaintiffs is paid for every hour they spend on the case, even when they lose. And
even when they lose big.17 For example, in Reynolds II, this Court found that the
attorneys for the plaintiffs had invited error by the district court and then defended
the commission of that error with baseless arguments on appeal; we remanded the
case with directions that the plaintiffs’ attorneys be required to show cause why
they should not be sanctioned under 28 U.S.C. § 1927 for unreasonably and
17
The defendants’ supplemental letter states: “under an agreement reached at an earlier
stage of this litigation, plaintiffs’ counsel are paid for every minute they spend on this case,
regardless of whether they are pursuing a legitimate objection and regardless of whether they
prevail.” Supp. Letter of Defendants at 8. It is unclear whether the reference to “an agreement”
means the consent decree or some other agreement.
If the “agreement” the defendants refer to is the consent decree, it only requires that the
defendants pay “reasonable fees for expenses and work done” on behalf of the plaintiffs. While a
decision about the matter will have to await proper presentation, it is not obvious to us that the
language in question entitles the plaintiffs to attorney’s fees for work that does not actually
benefit the plaintiffs, and it is certainly not plain that the language can be construed to reward the
plaintiffs’ counsel for taking legal positions that clearly have no basis. If the “agreement” the
defendants refer to is something outside the consent decree itself, the district court may wish to
consider whether such an agreement violates public policy or is otherwise unenforceable to the
extent that it fosters or encourages attorneys to pursue baseless legal positions. We note the issue
without taking a position on it, because it has not been presented to us.
41
vexatiously multiplying proceedings in the case, conduct that caused substantial
delay in one aspect of this case. 207 F.3d at 1301- 02. As we understand it, the
plaintiffs’ attorneys conceivably could be paid for their time in connection with
that appeal and the proceedings which led to it even if there is a finding that their
position was so baseless as to be sanctionable. That illustrates how perverse the
attorney’s fees incentive can be.18
With their fees for a particular effort not dependent upon its success, the
plaintiffs’ attorneys may have insufficient reason not to multiply proceedings and
to contest every aspect of every part of every conceivable proceeding regardless of
merit. Cf. 42 U.S.C. § 1988(b) (prevailing party status a prerequisite for
compelling the defendants in certain statutory actions to pay the plaintiff’s
attorney fees and costs). The promise of fees for time spent without regard to the
outcome of a motion or appeal in a case that apparently has endless potential for
dispute may be the kerosene that has fueled the litigation fires which have raged
18
Although it does not involve sanctionable conduct, the dispute before us in this appeal is
another example of the plaintiffs’ attorneys being paid for pursuing a position that lacks merit.
These job classifications were proposed by the defendants in April of 1996. As a result of the
plaintiffs’ objections, implementation of the new classifications have been delayed and the
ensuing litigation has gained counsel for plaintiffs hundreds of thousands, if not millions, of
dollars in attorney’s fees. Our decision today, which upholds the defendants’ job classifications,
establishes that the plaintiffs are not prevailing parties on this issue in any sense of the word,
except insofar as their counsel’s financial well being is concerned.
42
out of control in this case. The district court may wish to consider whether cutting
down on that fuel is an appropriate way to help bring the fire under control.19
With these suggestions, we leave the matter in the good judgment of the
district court, and will decide any related appeals as they come to us.
IV. CONCLUSION
The February 11, 1998 order of the district court is VACATED and this
case is REMANDED for further proceedings consistent with this opinion.
19
Of course, the attorneys for the plaintiffs are not the only ones whose monetary self-
interest will be damaged by the end of this lucrative, fee-generating case. The defendants’
attorneys are also compensated for time spent and the longer the case goes on the more they will
be compensated. Whether and to what extent their incentives need adjusting is something that
the defendants themselves, who pay the cost of their own representation, will have to decide. The
attorneys for the intervenors, however, like those for the plaintiffs, are being paid with another
party’s money (the defendants’).
43