dissenting:
I dissent, because I find no error of law or discretion in the district judge’s decision. He did not reject the use of racial quotas; he rejected the one-to-one promotion ratio to guarantee a proportion of black supervisors, matching what plaintiffs’ expert thought would be the labor market for entering patrolmen and patrolwomen, in view of all of the other provisions of the plan to eliminate and correct past discrimination and in view of the effect of the degree and duration of the promotion quota upon the great majority of New Orleans police officers.
I know of no rule of law that requires a court to approve that feature of an agreement between black plaintiffs and a city administration — regardless of the certainty or uncertainty of opinions of the future number of police officers (by race) eligible for promotion — regardless of the detail and reach of other corrective changes — and regardless of the effect on other persons who, despite merit, suffer from the blemish of race. If that now becomes the law, I think it unwise as well as unreasonable, unnecessary, and even unconstitutional.
Our disposition of this appeal should turn upon the discretion we allow the district judge. I understand the rule of this circuit to be stated in the en banc opinions of United States v. City of Miami, 664 F.2d 435 (5th Cir.). Even where no party objects but because members of a class or persons in an unrepresented class are adversely affected, the district judge is required to give careful consideration to a proposed consent decree and to exercise discretion in the decision to approve or disapprove. That decision may be reversed on appeal only if it is an abuse of discretion. 664 F.2d at 442. When objection comes from one who has full party standing, the consenting parties must demonstrate the propriety of the relief to which they have agreed, and the district court may decline to approve if it is shown to be inadvisable. 664 F.2d at 447, 448.
Approximately three-fourths of the New Orleans police officers' are objecting to this proposed decree. While they seek to intervene, that is so far denied to them except to a “limited” extent. I assume they have no due process complaint as did the Fraternal Order of Police in City of Miami, but their objections were properly weighed by the district judge and should be by us.
The district court has approved the proposed settlement and is prepared to enter a 33-page decree drastically revising the recruiting, hiring, training, and promotion *998standards and procedures. It governs virtually every phase of an officer’s employment by the New Orleans Police Department. The black officers, through able counsel, have devised a complete overhaul of the police operation to insure the eradication of discrimination against black persons. The city agrees and so does the court. An Academy Review Panel, at least half of its members black, will oversee training and report directly to the Superintendent of Police. Forty-four black officers are to be promoted immediately to supervisory positions.
The district judge made one objection. After long and careful consideration (his months matching our few days), he decided that it was unreasonable and unnecessary to require one black for one non-black promotion for the next 12 years or longer. He thought color-blind merit selection, after the other corrections are made, would be better for all affected persons, who otherwise — for the most part — would be seriously hampered and discouraged by the prospects for promotion. Looking at the whole plan and at the evidence before the court, I must concede that the decision was within that court’s discretion, and I would affirm it.
ON SUGGESTIONS FOR REHEARING EN BANC
Before CLARK, Chief Judge, BROWN, WISDOM, GEE, REAVLEY, POLITZ, RANDALL, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY and HIGGIN-BOTHAM, Circuit Judges. BY THE COURT:A member of the court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc,
IT IS ORDERED that the cause shall be reheard by the court en banc with oral argument on a date hereafter to be fixed. The clerk will specify a briefing schedule for the filing of supplemental briefs.
IT IS FURTHER ORDERED that the mandate previously issued is recalled. See Fifth Circuit Local Rule 17.