noting that, if a court determines that modification is proper, modifying the judgment “would require a complete hearing and findings of fact” (citing United States v. Atl. Refining Co., 360 U.S. 19, 23, 79 S.Ct. 944, 3 L.Ed.2d 1054 (1959); Hughes v. United States, 342 U.S. 353, 357-58, 72 S.Ct. 306, 96 L.Ed. 394 (1952))
How later courts described this case
- noting that, if a court determines that modification is proper, modifying the judgment “would require a complete hearing and findings of fact” (citing United States v. Atl. Refining Co., 360 U.S. 19, 23, 79 S.Ct. 944, 3 L.Ed.2d 1054 (1959); Hughes v. United States, 342 U.S. 353, 357-58, 72 S.Ct. 306, 96 L.Ed. 394 (1952))
- stating that "since consent decrees and orders have many of the attributes of ordinary contracts, they should be construed basically as contracts."
- affirming district court’s use of injunctive relief as part of its inherent authority to effectuate consent decree previously entered by the parties
- the district judge’s interpretation of a consent decree deserved deference where that judge oversaw and approved the consent decree
Written by the judges who cited it.
The opinion
BAILEY BROWN, Circuit Judge
(concurring in the result.)
I concur in the affirmance of the entry of the preliminary injunction by the district court prohibiting layoffs that would reduce the proportion of minority firefighters in the Toledo fire department. I would, however, reach this result on only one of the theories upon which Judge Keith relies.
I disagree with Judge Keith’s opinion as to its holding that this consent decree, properly construed, prohibited layoffs on the basis of seniority. This consent decree is absolutely silent with respect to layoffs. In order to construe it to proscribe layoffs on the basis of seniority in spite of its silence, we have to construe it by implication to provide that the City of Toledo was to forego the right to lay off at all unless it laid off other than on the basis of seniority in which case it would be laying off contrary to its collective bargaining contract and the Ohio statute (O.R.C. § 124.37). To me, this is not a reasonable construction of the consent decree. On the contrary, if layoffs had been within the contemplation of the parties at the time they negotiated *565 and submitted the consent decree, such would have been covered in the decree.
Further, with respect to the interpretation of the consent decree, I disagree with Judge Keith’s opinion in its application to this question of the opinions of this court in Youngblood v. Dalzell, 568 F.2d 506 (6th Cir. 1978) and Sarabia v. T.P.P.A., 601 F.2d 914 (6th Cir. 1979). The holding in Young-blood supports the proposition that the consent decree, being silent as to layoffs, does not proscribe layoffs by seniority. Sarabia is not applicable here since there the court was applying the consent decree to hiring practices, a matter that was expressly covered by the consent decree.
On the other hand, I agree with Judge Keith’s opinion as to its holding that, even if layoffs by seniority were not proscribed by the consent decree as originally entered, the district court had the authority to, in effect, modify the consent decree to proscribe layoffs by seniority. This is true since the district court held an evidentiary hearing and determined that such was necessary, due to changed circumstances, to carry out the expressed purpose and goal of the consent decree. Actually, it is not absolutely clear whether the district court considered that it was reaching this result by construing the consent decree, or whether it considered that it was reaching this result by modifying the consent decree in order to accomplish the stated purpose and goal of the consent decree. It is clear, however, that the district court based its decision to enter the preliminary injunction on facts and circumstances, developed at the hearing, that existed at the time it made its decision. These included the financial problems of the City and the lack of progress that had been made in accomplishing the purpose of the consent decree.
As does Judge Keith, I believe that the district court’s authority to modify the consent decree is supported by United States v. Swift, 286 U.S. 106 , 52 S.Ct. 460 , 76 L.Ed. 999 (1932), and Hughes v. United States, 342 U.S. 353 , 72 S.Ct. 306 , 96 L.Ed. 394 (1952). The teaching of these cases is that, even where a consent decree is entered, as here, without a determination of liability, the court may later modify the decree in the light of changed circumstances to carry out the expressed purpose of the decree. 1
Because the City is being required to pursue a course of action that it has not, by the consent decree, contracted to follow, and because liability has never been established, it seems to me that the district court should take particular care to exercise judicial restraint in modifying the consent decree to overrule the decision of the elected City officials and their appointees concerning the proper way to meet this financial crisis. National League of Cities v. Usery, 426 U.S. 833 , 96 S.Ct. 2465 , 49 L.Ed.2d 245 (1976). Nonetheless, on the question before this court, which is whether the district court erred in issuing the preliminary injunction, I cannot, on this record, conclude that it acted arbitrarily.
I do not beliéve that, to affirm the issuance of this preliminary injunction, it is necessary for this court to hold, as does Judge Keith’s opinion, that the district court’s decision, pursuant to the Supremacy Clause, overrides the Ohio statute and the collective bargaining contract requiring layoffs by seniority. The district court’s decision does not authorize layoffs on a basis other than seniority and does not even purport to affect contract rights between the Union and the City. What the district court did, after considering all of the facts (including the existing financial crunch, the current options that the City had with respect to cutting costs, and the slow progress in meeting the goal of the consent decree) *566 was to determine only that the City should be preliminarily enjoined from laying off in such a way that would reduce the proportion of minority persons in the fire department. Thus, the City may, under the injunction, refrain from laying off in the fire department and seek savings in other areas or it may, if it chooses, lay off on a proportional basis and face whatever legal consequences that may flow from such action.
In my view, even though this action was brought pursuant to 42 U.S.C. §§ 1981 and 1983 and not pursuant to Title VII, the district court did not have the authority, when it issued the preliminary injunction, to abrogate the contract and statutory rights of the Union to layoffs by seniority. The Union, although it had existing contract and statutory rights to layoffs by seniority, was not a party to this litigation when it was filed and when the consent decree was entered. Therefore, its rights vis-a-vis the City were not affected by the consent decree. Although it intervened at the time plaintiffs moved for the instant preliminary injunction, there was, again, no determination of liability in this proceeding, and the Union’s position was that the district court could not and should not authorize layoffs on a basis other than seniority. The district court did not so authorize layoffs. The district court could abrogate the rights of the Union to layoffs by seniority, as required by its contract and the Ohio statute, only in a proceeding in which the Union was a party, and in which there was a determination that: (1) plaintiffs’ constitutional rights had been infringed; and (2) it was necessary, to vindicate plaintiffs’ constitutional rights, to hold such contract and statutory rights of the Union to be unenforceable.
. Plaintiffs argue that the consent decree, properly construed, concedes liability, and the district court, in its memorandum granting the preliminary injunction, seems to assume that liability has been established. I do not, however, construe the consent decree to concede liability with respect to the fire department, and there has never been an evidentiary hearing and determination of such liability by the district court. However, as stated in the body of my concurrence, the authority of the district court to modify the consent decree is not dependent on the establishment of liability.