United States v. City of Hialeah

KRAVITCH, Senior Circuit Judge, dissenting:

I agree that this court may review the decision of the

district court refusing to approve the proposed consent decree, and

accordingly I join Section III.A of the majority opinion.1 Because

I disagree with the majority’s interpretation of the law and its

resolution of the merits of the United States’ appeal, I

respectfully dissent from Section III.B of the majority opinion.

My resolution of the merits necessitates review of the cross-

appeal; I therefore do not join Section III.C of the majority

opinion.

I.

A.

In its Order Denying Approval of the Settlement, the district

court found that the United States had demonstrated a “valid basis

for the race-conscious relief sought in the Agreement”2 by

1

To supplement the majority’s discussion of Carson’s irreparable

injury requirement, I add that to require the United States to

litigate on the merits to resolve whether the seniority proposal is

permissible would burden the class of discriminatees, see Carson v.

Am. Brands, 450 U.S. 79, 89, 101 S. Ct. 993, 999 (1981) (stating

that petitioners were harmed by inability to achieve “immediate

restructuring of respondents' transfer and promotional policies”),

undermine the policy of “make-whole” relief in Title VII cases, see

Franks v. Bowman Transp. Co., 424 U.S. 747, 765-66, 96 S. Ct. 1251,

1265 (1976), and contradict the “strong preference for encouraging

voluntary settlement of employment discrimination claims,” Carson,

450 U.S. at 88 n.14, 101 S. Ct. at 998 n.14.

2

Order at 7.

1

demonstrating a “gross statistical disparity”3 and thus

establishing a prima facie case of discrimination.4 The district

court concluded, however, that it could not “bind non-consenting

parties to a consent decree”5 and, alternatively, that the proposed

settlement agreement was not fair to incumbent employees.6 The

majority concludes that the district court was correct because a

district court may not approve “a proposed consent decree . . . if

it would affect the legal rights of the objecting parties.”

Because I believe that both rationales advanced by the district

court were based upon incorrect interpretations of the law and that

the majority rests its affirmance upon a similarly flawed basis, I

would reverse the order refusing to approve the consent decree.

The majority relies upon White v. Alabama, 74 F.3d 1058 (11th

Cir. 1996), and United States v. City of Miami, 664 F.2d 435

(Former 5th Cir. 1981) (en banc), for the proposition that “parts

3

Id. at 9. The United States proffered statistical evidence in

the affidavit of Marian Thompson, Ph.D., which showed, inter

alia, that at the time of the fairness hearing in 1994 only one

of the 235 members of the fire department was black; that none of

the 124 entry-level firefighters was black; that only five of the

313 sworn police department employees were black; and that only

four of the 240 entry-level police officers were black. See U.S.

Reply Br. at 8; R. 2-18, attachment A at 2 n.1 and 8-9 n.4. The

affidavit averred that the relevant labor market was either 17.2%

black or 16.1% black, depending upon which definition of the

labor market was used.

4

Order at 8.

5

Id. at 12-13.

6

Id. at 15.

2

of [a] decree [that] affect [a] third party who did not consent to

it . . . cannot properly be included in a valid consent decree.”

City of Miami, 664 F.2d at 442.

City of Miami, however, recognized that a consent decree can

abridge the contractual rights of a nonconsenting party, as long as

there has been a “trial or examination” before the district court

to determine whether the remedy sought is justified by past

discrimination. 664 F.2d at 447. In City of Miami, the challenged

consent decree would have entitled members of the class of

discriminatees who had not taken the civil service test to receive

promotions ahead of employees who had taken and passed the test.

The decree was challenged by employees who claimed that their

collective bargaining rights would be impaired by the decree. The

mandate of the court of appeals required modification of the decree

to provide that it would not affect promotion rights of the

objecting employees. The appellate court reasoned that the

district court failed to find past discrimination by the City that

would justify the remedies in the consent decree and, a fortiori,

would justify an abridgment of the interests of non-consenting

third parties. Id. at 447. The court stated:

The right to promotion on the basis of test accomplishment may

not be obliterated without a demonstration that the City has,

in making promotions, discriminated against members of the

affected classes in the past and that affirmative action is a

necessary or appropriate remedy or that it has so

discriminated in employment policy as to unfairly prejudice

the opportunity of the affected class to achieve promotions.

3

Id. at 446-47 (Rubin, J., concurring). The court concluded that

“[t]hose who seek affirmative remedial goals that would adversely

affect other parties must demonstrate the propriety of such

relief.” Id. at 447. The court did not hold, however, that a

consent decree that affects the contractual rights of nonconsenting

parties categorically is unlawful. Rather, the court expressly

held that a sufficient showing of past discrimination by the United

States would justify relief sought on behalf of the discriminatees.

See id. (“If, on remand, the United States shows that the City’s

practices have discriminated against individuals in or members of

the affected class in such a way as adversely to affect their

promotions, the district court shall fashion an appropriate remedy

invoking its ‘sound equitable discretion.’”) (quoting Franks v.

Bowman Transp. Co., 424 U.S. 747, 770, 96 S. Ct. 1251, 1267

(1976)).

Five years after the court decided City of Miami, the Supreme

Court confirmed that a court may enter a consent decree despite the

objections of a party to the action. In Local No. 93 v. City of

Cleveland, 478 U.S. 501, 106 S. Ct. 3063 (1986), the Court held

that an intervening union's consent was not required to obtain

court approval of a consent decree that arguably affected the

contractual rights of the union’s members. As in the case before

us, the class of plaintiff-discriminatees and the city in Local No.

93 agreed to enter a consent decree providing remedial relief --

4

including reserved planned promotions for minority employees and

modification of the application of the seniority system to benefit

discriminatees7 -- to which the union objected. The Court stated:

It has never been supposed that one party -- whether an

original party, a party that was joined later, or an

intervenor -- could preclude other parties from settling their

own disputes and thereby withdrawing from litigation. Thus,

while an intervenor is entitled to present evidence and have

its objections heard at the hearings on whether to approve a

consent decree, it does not have power to block the decree

merely by withholding its consent.

Id. at 528-29, 106 S. Ct. at 3079.8 The Court was careful to

distinguish between consent decrees that “impose[] obligations on

a party that did not consent to the decree” or that dispose of a

nonconsenting party’s legal claims for relief, id. at 529, 106 S.

Ct. at 3079 (emphasis added), and those that merely affect a

7

The United States notes that the contested remedy in the case

sub judice -- retroactive remedial seniority -- is less far-

reaching than the remedy in Local No. 93, which was extended to

individuals who were not actual victims of the City's

discriminatory practices.

8

The majority recites this language, yet renders it fully without

content by reading this circuit’s precedent to mean that “the

objection of a party whose rights or claims would be adversely

affected does bar a proposed consent decree.” The majority relies

upon City of Miami, decided five years before the Supreme Court’s

decision in Local No. 93. Even if City of Miami had held that a

mere adverse effect upon contractual expectations of an objecting

party were sufficient to preclude entry of an otherwise valid

consent decree -- a reading of City of Miami that I believe is

incorrect, see supra, Section I.A.-- that holding was overruled in

Local No. 93. Although White, the only other Eleventh Circuit case

relied upon by the majority, was decided after Local No. 93, a

close reading of that case makes clear that it, too, is not

inconsistent with Local No. 93 and does not support the majority’s

position. See infra.

5

nonconsenting party. The Court explained:

Of course, parties who choose to resolve litigation through

settlement may not dispose of the claims of a third party, and

a fortiori may not impose duties or obligations on a third

party, without that party's agreement. A court's approval of

a consent decree between some of the parties therefore cannot

dispose of the valid claims of nonconsenting intervenors; if

properly raised, these claims remain and may be litigated by

the intervenor. And, of course, a court may not enter a

consent decree that imposes obligations on a party that did

not consent to the decree. However, the consent decree

entered here does not bind Local No. 93 to do or not to do

anything. It imposes no legal duties or obligations on the

Union at all . . . .

Id. at 529-30, 106 S. Ct. at 3079 (citations omitted). Therefore,

a consent decree that “does not bind [the non-consenting party] to

do or not to do anything,” id. at 529-30, 106 S. Ct. at 3079, and

that does not impose any “legal duties or obligations” upon that

party -- duties the breach of which could lead to “contempt of

court for failure to comply with its terms,” id. at 530, 106 S. Ct.

at 3079 -- is not invalid. Likewise, a decree that does not

impermissibly dispose of the valid claims for relief of a

nonconsenting party is lawful.

The consent decree at issue here, like the decree at issue in

Local No. 93,9 does not impose any legal obligations upon the

9

Contrary to the majority’s contention, it appears that the

intervening union in Local No. 93 asserted interests similar to

those asserted by the intervenors here. See Local No. 93, 478 U.S.

at 507, 106 S. Ct. at 3067 (noting that union contended that

consent decree would “deny those most capable from [sic] their

promotions”) (emphasis added); Vanguards of Cleveland v. City of

Cleveland, 753 F.2d 479, 484-85 (6th Cir. 1985) (noting that union

claimed that consent decree’s affirmative action plan “penalizes

innocent non-minority firefighters” and stating that “[s]ince non-

6

nonconsenting parties. The appellees would not be required by the

decree “to do or not to do anything.” Local No. 93, 478 U.S. at

530, 106 S. Ct. at 3079. Nor do the objectors have any legal

claims for relief that could be disposed of by the proposed consent

decree. Appellees became parties to this action solely to voice

their views on the fairness of the settlement; they have at no time

during this litigation asserted “a cause of action in [their] own

right[,] and [they] could not prosecute reverse discrimination

claims (of [their] members) that [have] not yet arisen.” White v.

Alabama, 74 F.3d 1058, 1075 n.53 (11th Cir. 1996); cf. Kirkland v.

N.Y. State Dept. of Correctional Serv., 711 F.2d 1117, 1126 (2d

Cir. 1983) (approving of district court’s decision to let non-

minorities intervene “for the sole purpose of objecting to the

settlement”; stating that “although non-minority third parties

allowed to intervene in cases which involve consent decrees or

settlement agreements implementing race-conscious hiring or

promotional remedies do have a sufficient interest to argue that

the decree or agreement is unreasonable or unlawful, their interest

in the expectation of appointment does not require their consent as

a condition to any voluntary compromise of the litigation”).

minorities do not have a legally protected interest in promotions

which could only be made pursuant to discriminatory employment

practices, it follows that the legal rights of non-minorities will

not be adversely affected by reasonable and lawful race-conscious

hiring or promotional remedies”) (emphasis in original), aff’d,

Local No. 93, supra.

7

Instead, their argument is that their contractual rights will be

adversely affected by the decree.

That argument, however, is foreclosed not only by Local No.

93, see 478 U.S. at 528, 106 S. Ct. at 3078-79 (holding that

argument that “because the Union was permitted to intervene as of

right, its consent was required before the court could approve the

consent decree . . . misconceives the Union’s rights in the

litigation”), but also by the Supreme Court’s opinion in Franks v.

Bowman Transp. Co., 424 U.S. 747, 96 S. Ct. 1251 (1976), which

stands for the proposition that a third party cannot block approval

of a consent decree merely because the party will be “affected” by

the decree. In Franks, the Court held that retroactive competitive

seniority relief -- the relief challenged in the case sub judice --

was necessary to ensure full relief for the victims of

discrimination. Id. at 771, 96 S. Ct. at 1267. The union in that

case, like the appellees in the case before us, objected to

retroactive competitive seniority benefits for the discriminatees,

claiming that such relief would affect the rights of employees who

had not been victims of discrimination. Id. at 773, 96 S. Ct. at

1268. The Court stated:

Certainly, there is no argument that the award of retroactive

seniority to victims of hiring discrimination in any way

deprives other employees of indefeasibly vested rights

conferred by the employment contract. This Court has long

held that employee expectations arising from a seniority

system agreement may be modified by statutes furthering a

strong public policy interest.

8

Id. at 778, 96 S. Ct. at 1271.10 Because claims under Title VII

“involve the vindication of a major public interest,” id. at 778

n.40, 96 S. Ct. at 1271 n.40 (quoting Section-By-Section Analysis

of H.R. 1746, accompanying the Equal Employment Opportunity Act of

1972 Conference Report, 118 Cong.Rec. 7166, 7168 (1972)),

appellees’ assertion that an award of retroactive seniority

benefits impairs their contractual rights cannot defeat an

otherwise valid consent decree.11 Rather, to object successfully

10

The Court explained:

[I]t is apparent that denial of seniority relief to

identifiable victims of racial discrimination on the sole

ground that such relief diminishes the expectations of other,

arguably innocent, employees would if applied generally

frustrate the central “make-whole” objective of Title VII.

These conflicting interests of other employees will, of

course, always be present in instances where some scarce

employment benefit is distributed among employees on the basis

of their status in the seniority hierarchy. . . .

Accordingly, we find untenable the conclusion that this form

of relief may be denied merely because the interests of other

employees may thereby be affected.

Franks, 424 U.S. at 774-75, 96 S. Ct. at 1269.

11

The appellees’ -- and the majority’s -- reliance upon contract

expectations protected by Florida law thus is unavailing. The

economic expectations of the current employees and provisions of

Florida law protective of employment benefits cannot trump the

rights granted to all workers by Congress in Title VII. See U.S.

Const. art. VI. Moreover, the majority’s insistence that appellees

would be unfairly burdened by the proposed consent decree ignores

the impact of the City’s past discrimination upon the seniority

ladder appellees seek to protect. The controversial provision in

the consent decree awarding retroactive seniority would merely

restore incumbent employees to the place in the hierarchy that they

would have occupied absent discrimination. See Franks, 424 U.S. at

767, 96 S. Ct. at 1265 (“A concomitant award of the seniority

credit [that a discriminatee] presumptively would have earned but

9

to a decree between consenting parties, the objecting party must

show that the challenged consent decree has disposed of a legal

claim or imposed legal obligations or duties upon that party. This

appellees have not done.

The majority’s reliance upon White v. Alabama, 74 F.3d 1058

(11th Cir. 1996), is misplaced, as well. In White, a class of

African-American voters sued alleging that the at-large scheme for

electing state appellate judges diluted the voting strength of

African-American voters, and the class requested relief in the form

of a proportional representation scheme. Another plaintiff

intervened, purporting to represent a class of African-American

voters and seeking single-member districts. The court of appeals

invalidated a final order of the district court that the parties to

the case categorized as a consent decree; the order would have

provided in large part the relief sought by the initial class of

plaintiffs and thus would have denied the relief sought by the

for the wrongful treatment would also seem necessary in the absence

of justification for denying that relief.”). The majority’s

suggestion that the rights of incumbent employees would be

diminished by the decree much as would be “the rights of a

pedestrian in a crosswalk . . . by a runaway truck” ignores the

actual victims of discrimination in this case, who merely hope to

obtain the relief that Congress has provided and that the Supreme

Court unequivocally has stated is available to victims of illegal

discrimination. See id. at 774, 96 S. Ct. at 1269. Indeed, “the

State has the power to eradicate racial discrimination and its

effects in both the public and private sectors, and the absolute

duty to do so where those wrongs were caused intentionally by the

State itself.” City of Richmond v. J.A. Croson Co., 488 U.S. 469,

518, 109 S. Ct. 706, 735 (1989) (Kennedy, J., concurring in part).

10

intervenors despite their objections to the decree. The court of

appeals invalidated the decree approved by the district court

because it would have “provide[d] relief beyond that authorized by

Congress” in the Voting Rights Act. White, 74 F.3d at 1074. In

addition, and of relevance to the appeal before us, the court in

White distinguished Local No. 93 because the objecting party in

White was a plaintiff prosecuting a cause of action. Whereas in

Local No. 93 the “union’s sole reason for intervening in the case

. . . was to protest the settlement,” White, 74 F.3d at 1075 n.53,

in White the settlement would have disposed of a cause of action

properly raised in the objector’s pleadings, see id. at 1073 n.49

(noting that the nonconsenting party intervened as a plaintiff and

filed a complaint alleging that “he represented a class consisting

of all of Alabama’s black voters” and seeking relief in the form of

an order mandating single-member districts for the election of

Alabama appellate judges, relief that was “totally inconsistent”

with that sought by the other plaintiff class).

White thus recognized the uncontroversial proposition that a

court may not resolve by a settlement order the pleaded claims for

relief of a party before the court without that party’s consent.

See Local No. 93, 478 U.S. at 529, 106 S. Ct. at 3079 (“A court’s

approval of a consent decree between some of the parties therefore

cannot dispose of the valid claims of nonconsenting intervenors; if

properly raised, these claims remain and may be litigated by the

11

intervenor.”). In the case before us, however, the objecting

parties did not present any claim for relief to the district court,

but rather joined the action solely to protest the proposed

settlement. Local No. 93 expressly held that the refusal of such

a party to consent to a proposed settlement does not invalidate the

agreement, as long as the party had a chance to “present evidence

and have its objections heard at the hearings on whether to approve

the consent decree.” Local No. 93, 478 U.S. at 529, 106 S. Ct. at

3079. The district court thus erred in concluding that it could

not approve the consent decree over appellees’ objections.

B.

The majority holds that the contractual rights of the

objecting parties -- parties who are not prosecuting a legal claim

for relief in this action, see White, 74 F.3d at 1075 n.53, and who

thus cannot preclude entry of the consent decree, see Local No. 93,

478 U.S. at 528-29, 106 S. Ct. at 3079 -- may be affected only

after a “trial on the merits.” In Local No. 93, however, the

Supreme Court squarely held that the union that objected to the

consent decree could not preclude its entry simply because there

had been no trial on the merits. The district court’s fairness

hearing in that case sufficed to justify entry of the decree,

notwithstanding the union’s argument that it would affect the

contractual expectations of its members. The Court stated:

12

Here, Local No. 93 took full advantage of its opportunity to

participate in the District Court’s hearings on the consent

decree. It was permitted to air its objections to the

reasonableness of the decree and to introduce relevant

evidence; the District Court carefully considered these

objections and explained why it was rejecting them.

Accordingly, “the District Court gave the union all the

process that it was due . . . .”

478 U.S. at 529, 106 S. Ct. at 3079 (quoting Zipes v. Trans World

Airlines, Inc., 455 U.S. 385, 400, 102 S. Ct. 1127, 1136 (1982)).

As in the case sub judice, the district court in Local No. 93 had

conducted a fairness hearing to consider the propriety of the

proposed consent decree. See Local No. 93, 478 U.S. at 508, 106 S.

Ct. at 3068. It is clear, then, that a district court may enter a

consent decree despite the objections of a party after conducting

a fairness hearing at which the objector “is entitled to present

evidence and have its objections heard,”12 Local No. 93, 478 U.S.

at 529, 106 S. Ct. at 3079, even if the decree modifies “employee

12

Local No. 93 did not create a broad right of intervenors to a

quasi-trial, but rather simply required a district court conducting

a fairness hearing to allow a party objecting to a proposed

settlement agreement to “present evidence and have its objections

heard.” 478 U.S. at 529, 106 S. Ct. at 3079. Contrary to the

assertion of the majority, the district court thus was under no

obligation to permit the Suau objectors to cross-examine the United

States’ expert witness or to conduct discovery. The majority also

suggests that the Suau objectors were not permitted to offer

statistical evidence of their own. This assertion finds no support

in the record; indeed, the Suau objectors do not contend on appeal

that they were denied the opportunity to “present evidence and have

[their] objections heard” because they were given an opportunity to

do so at the fairness hearing. See R3 at 22-29 (transcript of

8/11/94 fairness hearing). Moreover, the Suau objectors in fact

presented their objections to the proposed consent decree and filed

a notice of their objections with the district court. See Order at

5.

13

expectations arising from a seniority system agreement,” Franks,

424 U.S. at 778, 96 S. Ct. at 1271.13 City of Miami is not to the

13

In addition, a finding by the district court of a prima facie

case of discrimination that is supported by the record is

sufficient to justify race-conscious relief. See Howard v.

th

McLucas,871 F.2d 1000, 1006 (11 Cir.), cert. denied, 493 U.S.

1002, 110 S. Ct. 560 (1989); Kirkland, 711 F.2d at 1130 (“[A]

showing of a prima facie case of employment discrimination through

a statistical demonstration of disproportionate racial impact

constitutes a sufficiently serious claim of discrimination to serve

as a predicate for a voluntary compromise containing race-conscious

remedies.”); see also Croson, 488 U.S. at 500, 109 S. Ct. at 725

(holding that city set-aside plan lacked strong basis in evidence

because “there [was] nothing approaching a prima facie case of

constitutional or statutory violation by anyone in the Richmond

construction industry”); Wygant v. Jackson Bd. of Educ., 476 U.S.

267, 277, 106 S. Ct. 1842, 1848 (1986) (holding that district court

should respond to challenge to race-conscious relief by making “a

factual determination that the employer had a strong basis in

evidence for its conclusion that remedial action was necessary”).

The district court's finding of a prima facie case in the case

before us was made in the course of consideration of the proposed

settlement agreement. A district court's task in reviewing such an

agreement is to ascertain that “the proposal represents a

reasonable factual and legal determination based on the facts of

the record, whether established by evidence, affidavit, or

stipulation” and that any effect on third parties is “neither

unreasonable nor proscribed.” City of Miami, 664 F.2d at 441;

accord City of Alexandria, 614 F.2d at 1362. In this case, the

district court's reliance upon the statistical evidence presented

in an affidavit by an expert represented “a reasonable factual and

legal determination” as a predicate for a decision whether to

approve a settlement agreement. City of Miami, 664 F.2d at 441.

Moreover, the district court’s finding is supported by the record.

The statistical evidence showed a stark disparity between the

percentage of blacks available in the relevant labor markets and

the number of blacks employed. See supra, Section I.A n.3;

Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 307-308, 97 S.

Ct. 2736, 2741 (1977) (“Where gross statistical disparities can be

shown, they alone may in a proper case constitute prima facie proof

of a pattern or practice of discrimination.”); Int’l Bhd. of

Teamsters v. United States, 431 U.S. 324, 339-340 n.20, 97 S. Ct.

1843, 1856 n.20 (1977). Appellees’ argument that the United States

did not establish an evidentiary basis sufficient to justify race-

conscious relief thus is without merit.

14

contrary, see 664 F.2d at 447 (“[I]n the absence of either a trial

or an examination . . . by the district court, we are not prepared

to hold that the consent decree is valid insofar as it deprives the

[union] and its members of the benefit of the promotion procedure

. . . .”) (emphasis added), and, to the extent that the majority

reads it to be so, it cannot bind this court, see Local No. 93, 478

U.S. at 529, 106 S. Ct. at 3079. The district court’s conclusion

that it lacked the authority to approve the proposed consent decree

under these circumstances14 thus was erroneous.

C.

The district court also based its decision refusing to approve

the proposed consent decree upon a finding that the decree was

unfair to incumbent employees. Because the majority concludes that

the consent decree impermissibly would have compromised the rights

of the objectors, the majority does not decide whether the district

court’s conclusion that the decree was unfair is supportable under

applicable law. Because I believe that the majority’s conclusion

is incorrect, I address the district court’s alternative basis for

refusing to approve the decree.

The Supreme Court stated in Franks that

the denial of seniority relief to victims of illegal racial

discrimination in hiring is permissible “only for reasons

which, if applied generally, would not frustrate the central

14

See Order at 12-13 (“The Court finds that approval in the face

of these objections would not be appropriate because the Court

cannot bind non-consenting parties to a consent decree.”).

15

statutory purposes of eradicating discrimination throughout

the economy and making persons whole for injuries suffered

through past discrimination.”

424 U.S. at 771, 96 S. Ct. at 1267 (quoting Albermarle Paper Co. v.

Moody, 422 U.S. 405, 421, 95 S. Ct. 2362, 2373 (1975)). Indeed,

the Court stated that “the issue of seniority relief cuts to the

very heart of Title VII's primary objective of eradicating present

and future discrimination in a way that backpay, for example, can

never do.” Id. at 768 n.28, 96 S. Ct. at 1266 n.28. “[O]rdinarily

such relief will be necessary to achieve the 'make-whole' purposes

of [Title VII].” Id. at 766, 95 S. Ct. at 1265.

The district court here held that the proposed agreement was

unfair to incumbent employees because it would have an “unusual,

adverse impact.”15 Specifically, the district court relied in large

part upon its conclusion that incumbent employees' “vested,

contractual rights will be diminished.”16 As the United States

argues, however, contractual rights of the incumbent employees

would not be altered under the proposed agreement; rather only the

relative position of those employees in the hierarchy would be

affected -- and no more so than would have occurred absent

discrimination. Cf. Franks, 424 U.S. at 767, 96 S. Ct. at 1265

(“A concomitant award of the seniority credit he presumptively

15

Order at 17.

16

Order at 16.

16

would have earned but for the wrongful treatment would also seem

necessary in the absence of justification for denying that

relief.”). The Court explained,

[I]t is apparent that denial of seniority relief to

identifiable victims of racial discrimination on the sole

ground that such relief diminishes the expectations of other,

arguably innocent, employees would if applied generally

frustrate the central “make-whole” objective of Title VII.

These conflicting interests of other employees will, of

course, always be present in instances where some scarce

employment benefit is distributed among employees on the basis

of their status in the seniority hierarchy. . . .

Accordingly, we find untenable the conclusion that this form

of relief may be denied merely because the interests of other

employees may thereby be affected.

Franks, 424 U.S. at 774-75, 96 S. Ct. at 1269.

The district court also based its conclusion upon the “strong

likelihood . . . that an atmosphere of hostility and animosity

would arise between the incumbent employees and the incoming victim

class.”17 The opposition or hostility of incumbent employees to

remedial measures for victims of discrimination, however, is not a

valid basis upon which to deny relief. See, e.g., Local No. 93,

478 U.S. at 511, 106 S. Ct. at 3069 (affirming district court’s

approval of consent decree despite union’s objection that relief

would cause “serious racial polarization”); Equal Employment

Opportunity Comm’n v. Rath Packing Co., 787 F.2d 318, 335 (8th Cir.)

(holding that district court abused its discretion in denying

retroactive seniority and rejecting employer's claim that relief

17

Order at 18.

17

would “lower employee morale” because “[t]hese consequences can be

expected in almost all Title VII cases”), cert. denied, 479 U.S.

910, 107 S. Ct. 307 (1986).

The district court's reasons for finding that the proposed

settlement agreement was unfair thus lack a basis in law. Although

the standard of appellate review of a district court's refusal to

approve a consent decree is “not crystal clear,” see Stovall, 117

F.3d at 1240, a district court’s order premised solely upon an

erroneous interpretation of the law merits reversal whether the

court of appeals reviews the decision de novo or for abuse of

discretion.18 This is particularly so in light of Congress’s

“strong preference for encouraging voluntary settlement of

employment discrimination claims,” see Carson, 450 U.S. at 88 n.14,

101 S. Ct. at 998 n.14, a preference that could be defeated if

district courts were given unbridled discretion “to impose their

views of reasonableness . . . on settlements reached by the

government agencies responsible for the enforcement of Title VII

rights,” City of Alexandria, 614 F.2d at 1362. Because the

district court erroneously believed that the consent decree

18

In Stovall v. City of Cocoa, 117 F.3d 1238, 1240 (11th Cir.

1997), the court concluded that a court of appeals should “tailor

the standard of review to the district court’s rationale for

rejecting the proposed consent decree.” The court distinguished a

legal determination by the district court “that a proposed decree

would be unlawful,” which should be subject to de novo review, from

“a conclusion that a proposed decree would be unreasonable or

unfair,” which should be reviewed for abuse of discretion. Id.

18

impermissibly would burden the appellees' rights, misapprehended

the law with respect to non-consenting parties and consent decrees,

yet made findings adequate to support remedial retroactive

seniority for the victims of discrimination, I would hold that the

district court's decision refusing to approve the consent decree

should be reversed.

II.

Because the majority affirms the district court’s judgment

refusing to approve the consent decree, the majority does not

address the cross-appeal of the Suau objectors, who contend that

the district court erred in concluding that the United States

demonstrated a prima facie case of discrimination. I disagree with

the majority’s resolution of the merits of the United States’

appeal, however, and accordingly conclude that the cross-appeal is

not moot and should be addressed.

The United States contends that this court lacks jurisdiction

over the Suau objectors' cross-appeal challenging the district

court's finding of a prima facie case of discrimination because the

objectors do not appeal from a final order, see 28 U.S.C. § 1291,

or from an order denying them injunctive relief, see 28 U.S.C. §

1292(a)(1); Carson, supra. Because the Suau objectors do not --

and could not -- claim that the district court's finding that the

United States established a prima facie case was a final order

under section 1291, they can seek appellate review of that finding

19

only if the finding independently satisfies section 1292(a)(1),

discussed supra, or if the finding is so related to the ruling

appealed by the United States as to be “inextricably intertwined”

with that ruling. See Swint v. Chambers County Commission, 514

U.S. 35, 115 S. Ct. 1203, 1212 (1995).

This court lacks jurisdiction over the cross-appeal

independent of its jurisdiction over the United States' appeal

because a finding that the United States established a prima facie

case of discrimination is not a denial of injunctive relief

appealable under section 1292(a)(1). See Equal Employment

Opportunity Comm’n v. Pan Am. World Airways, Inc., 796 F.2d 314,

316-17 (9th Cir. 1986), cert. denied, 479 U.S. 1030, 107 S. Ct. 874

(1987); accord Shee Atika v. Sealaska Corp., 39 F.3d 247, 249 (9th

Cir. 1994). This court thus can entertain the cross-appeal only if

it is essential to the resolution of, or inextricably intertwined

with, the United States' appeal.

In Swint, the Supreme Court reversed a decision of a panel of

the Eleventh Circuit that impermissibly had exercised appellate

jurisdiction over a claim merely pendent to a reviewable collateral

order. Although recognizing that the Court had not “universally

required courts of appeals to confine review to the precise

decision independently subject to appeal,” 115 S. Ct. at 1211, the

Court made clear that “there is no 'pendent party' appellate

jurisdiction,” id. at 1212. The Court did not settle “whether or

20

when it may be proper for a court of appeals with jurisdiction over

one ruling to review, conjunctively, related rulings that are not

themselves independently appealable,” id., because the parties in

Swint did not -- and could not -- contend that the district court

decision in question was “inextricably intertwined” with the

decision over which the court of appeals properly had jurisdiction

or that “the former decision was necessary to ensure meaningful

review of the latter,” id. Although the Court in Swint

specifically addressed the scope of appellate jurisdiction over

collateral orders, see Cohen v. Beneficial Indus. Loan Corp., 337

U.S. 541, 69 S. Ct. 1221 (1949), the language of the opinion is

broad enough to encompass appeals brought pursuant to section

1292(a)(1) as well.

It is a close question whether this court enjoys appellate

jurisdiction over the cross-appeal. In determining whether

resolution of the correctness of the district court’s finding that

the United States established a prima facie case of discrimination

is “necessary to ensure meaningful review” of the United States’

appeal, Swint, 115 S. Ct. at 1212, over which we have jurisdiction,

this court should consider whether the district court’s conclusion

effectively is a predicate to our conclusion on the merits of the

United States’ appeal. Because an evaluation of the merits of the

United States' appeal necessarily involves reference to, and

reliance upon, the district court's finding that the United States

21

established a prima facie case justifying race-conscious relief,

see supra, Section I.C n.13, this court arguably can exercise

appellate jurisdiction over the cross-appeal.

Of course, as the United States argues, the Suau objectors'

cross-appeal may be characterized more properly as an alternative

argument for affirmance in the main appeal, in which case this

court may review the claim. Because the Supreme Court in Swint

made clear that a court of appeals should not readily exercise

jurisdiction over “related rulings that are not themselves

appealable,” 115 S. Ct. at 1212, and because I address the

substance of the cross-appeal in my discussion of the merits of the

United States’ appeal, see supra, Section I.C n.13, I would hold

that this court lacks the authority to review independently the

district court’s conclusion that the United States established a

prima facie case of discrimination.

III.

In my view, the majority has misapplied the law in affirming

the district court’s refusal to approve the proposed consent

decree. Because I believe that the proposed decree permissibly

would provide relief for the victims of discrimination and that the

district court lacked a basis in controlling law to refuse to

approve the decree, I would reverse the decision of the district

court and remand with instructions for the court to approve the

proposed decree.

22

Accordingly, I respectfully DISSENT from Sections III.B and

III.C of the majority opinion.

23