United States v. City of Miami

GEE, Circuit Judge,

concurring in part and dissenting in part,

joined by CHARLES CLARK, AINSWORTH, RONEY, JAMES C. HILL, FAY, VANCE, GARZA, HENDERSON, REAVLEY and POLITZ, Circuit Judges:

The procedural and factual background of this case are set out at length in the panel opinion. 614 F.2d 1322 . Little of this need be repeated for our present purposes, since in our view the appeal is disposed of by a rule both elementary and procedural: a nonconsenting party may not be subjected to a permanent injunction without a trial on the merits of his case. 1 Two of the parties to this litigation, the plaintiff United States and the defendant City of Miami, settled their differences and executed a proposed consent decree. The court below imposed that settlement on the unconsenting union without so much as a setting for trial on the merits. Such a procedure was improper.

The Factual Setting

As the year 1975 closed, the United States filed this Title VII “pattern and practice” suit against the City of Miami and others, among them the city police officers’ union and collective bargaining agent, Fraternal Order of Police (“FOP”). 2 The city answered the following day, the union in normal course. The course of the litigation thereafter consisted exclusively of attempts by the city and the United States to persuade the court to enter a lengthy consent decree arrived at between them, one that imposed racial and other hiring and promotion quotas on the city, and of the resistance of the FOP to these proposals. 3 The case was never set for trial on the merits, nor was any such trial ever held. At last the court entered the decree over the union’s protest, without a trial.

In its answer, among other contentions, the FOP pled that the quotas of the proposed decree discriminated unconstitutionally on the bases of race and sex and that the city’s agreement to the decree’s provisions violated the collective bargaining rela *449 tionship that it, as a union, maintained with its municipal employer.

Early in the case, the court had entered the consent decree. When the union moved to set it aside, the court held a hearing and thereafter set aside the decree as improvidently entered. Further sparring between the union and the consenting parties ensued, interrogatories were sent and answered, and the usual procedures of preparation for trial went forward. In their course, the court directed the union to compile a list of those points wherein it claimed its existing collective bargaining contract with the city was infringed by the consent decree. We can find no indication in the record that it ever did so. For this dereliction it was to pay a heavy price.

Whether, however, this failure of the union to point out wherein the decree contravenes any provision of its existing agreement with the city is dispositive of the collective bargaining issue in this case is unclear under Florida law. 4 Had the court below directly addressed this issue, or had it been briefed on its merits, we might attempt to resolve it. Being in serious doubt, as we are, we should moré likely have certified the question to the patient and long-suffering Supreme Court of Florida. 5 None of this, however, took place, the court below having simply disregarded the issue.

Instead, while the case was in the discovery process, the court set and held yet another hearing, this one to determine whether it should reenter the voided consent decree with minor changes. 6 Counsel for all parties appeared and argued at length about the decree, about some of its various provisions, and about whether the court could properly enter it without the consent of the union parties. No one was in any doubt at all about the nature of this proceeding or indicated any misapprehension that it was in any sense intended as a trial of the merits. Rather the contrary; near the end of the hearing, at pages 104-OS of the 129-page transcription of it, Mr. Padgett, counsel for the United States, characterized the proceeding as follows:

[I]f we had ever gone to trial we would have done our best to ask for whatever the total amount of liability was, okay.

Let’s not mistake that.

If we were in a full-blown trial, but we are not in a full-blown trial and we are attempting to resolve the matter by consent.

(Emphasis added).

And on the last two pages, 128 and 129, the court and counsel for the union had this final exchange:

He [Mr. Weinsoff, counsel for the union] says that there are conflicts in the contract as presently proposed and accepted by the people, between that and this decree, right, and further he says that being a named defendant in here, he has got a right to raise the proposition that everything you fellows have done discriminates against everybody who has vested interest, including whites, and that the Court simply ought not to accept a decree which is discriminatory in its effect.

All right?

MR. WEINSOFF: Your Honor, it would be tantamount to imposing Rule 56 summary judgment on us and you al *450 ready indicated there is outstanding issues of fact and law.

(Emphasis added).

Following the hearing, the parties filed cross-memoranda with the court, the unions continuing to protest the apparent intention of the court to subject it to the consent decree without a trial:

This Court should not sign an injunction without a hearing at which the parties may reasonably be given an opportunity to present evidence on their behalf and where the burden of proof lies upon the Plaintiff to convince the Court that the Defendants and each and every one of them have in fact committed acts in violation of the laws sought to be enforced and that these violations are contrary to law and that there is no relief available to the Plaintiff other than the injunction and the violations are continuing, thereby causing irreparable harm to the Plaintiff or those to whom they are entitled to sue on behalf of.

The United States and the City of Miami, in addition to ascertaining a way in which there would be finality of judgment against the Defendants, Police Benevolent Association and Fraternal Order of Police, must show that there are findings of fact entitling the issuance of an injunction. Without findings of fact and conclusions of law, an appeal from this Consent Decree would be futile thereby depriving the Defendants the right to appeal to a higher Court for relief from the Order.

The Consent Decree states that the parties have waived hearing and the entry of findings of fact and conclusion of law of all issues covered by this Consent Decree, page one. The Respondents did not waive hearing, the entry of findings of fact and conclusion of law and never have intimated such. The injunction is only one portion of the Consent Decree and does not deál with each and every aspect of the Consent Decree. Therefore, the injunction portion of the Consent Decree would be the only issue that would be appealable and that is not an appealable order for the entire Consent Decree.

The second point raised by the joint movants is the Consent Decree does not allege wrong doing or request relief against Defendant Police units. Once the United States sued the Respondents and made them a part of the action, the Respondents had an interest in the case on ■behalf of its members which they must protect even though the City will consent to the Decree.

The relief in the Consent Decree violates the contractual rights of the Respondents and also the Civil Service Laws of the City of Miami which are carried forth into the contract between the Respondents and the City of Miami by virtue of the “prevailing rights clause” of 1974-76 contract and which is again carried forth in the 1976 — 78 contract. The entry of the Consent Decree should not change the obligations between the parties without a hearing on the merits and the Court would in effect be rewriting the Collective Bargaining Agreement between the City of Miami and the Fraternal Order of Police which the Court has no power to do until due process has been satisfied, to-wit: Notice of Hearing and an opportunity to present evidence on behalf of the Respondents.

(Emphasis added). Nevertheless, the court proceeded to reenter the consent decree despite the union’s protests. In addition, and though no trial had been had, the court entered what it termed “Findings and Conclusions,” in pertinent part as follows:

The Court now finds that the Consent Decree in its present form and under the present circumstances, does not violate the contractual relationship between the City of Miami and the Fraternal Order of Police and the Miami Police Benevolent Association.

The consent reached is constitutionally valid. It should be recognized by the Court.

Accordingly, the Consent Decree signed by the United States of America and the City of Miami, filed in this Court February 18, 1976, as modified by a document *451 signed by the United States of America and the City of Miami and filed in this Court on December 14, 1976, is accepted by this Court.

The Consent Decree, as so modified, will be signed this date by this Court. Upon signing by the Court, that Consent Decree will constitute the Final Judgment in the cause.

Because the Consent Decree contains the following injunctive order (permanent in nature):

1. The defendant City of Miami, its officials, agents, employees, and all persons in active concert or participation with them in the performance of City functions (hereinafter collectively referred to as the City) are permanently enjoined and restrained from engaging in any act or practice which has the purpose or effect of unlawfully discriminating against any employee of, or any applicant or potential applicant for employment with, the City of Miami because of such individual’s race, color, sex or national origin ....

The Fraternal Order of Police and the Police Benevolent Association will not be dismissed as parties to the action.

(Emphasis added).

As noted above, the Florida law concerning a municipality’s power to alter unilaterally matters properly the subject of collective bargaining is unsettled. The most nearly cognate address of this subject by the district court is its conclusion, expressed in its final order imposing the other parties’ “consent” injunction on the nonconsenting FOP, that “the Consent Decree in its present form and under the present circumstances, does not violate the contractual relationship between [the City and the FOP].” 7 This cannot be a factfinding, since there has never been a trial on the merits. But if it were, it could not be dispositive here, in view of the state of Florida law, noted above at footnote 4. In our view, it is difficult to avoid the conclusion that the trial court, annoyed perhaps with the union’s failure to comply with its listing instruction, punished it by ruling against it without a trial. We think it beyond our powers to approve this rough application of justice.

An appellant is before us complaining that it has had no day in court — has never been set for trial or had notice of a setting — but has been judged away. This error is so large and palpable that, like an elephant standing three inches from the viewer’s eye, it is at first hard to recognize. The major dissent is reduced to arguing that it is all right to enter a permanent injunction without a trial against one who is unable, in advance of such a trial, to show the court how his rights will be infringed by the order. Here is new law indeed, law that we cannot accept.

And while it is well and very well to extoll the virtues of concluding Title VII litigation by consent, as do our brethren — a sentiment in which we concur — we think it quite another to approve ramming a settlement between two consenting parties down the throat of a third and protesting one, leaving it bound without trial to an agreement to which it did not subscribe. If this be permitted, gone is the protester’s right to appear in court at a trial on the merits, present evidence, and contend that the decree proposed is generally infirm — as imposing unconstitutional or illegal exactions — so that it should not be entered at all or so as to bind any party or affected third party. 8 Who can know what the protester might *452 have been able to show at such a hearing, one to which first-reader principles of procedural due process entitle it? Surely, whether or not it had the power to persuade the trial court, it had the right to try.

Gone as well is the suppressed party’s right to try to demonstrate particular infirmities in the decree as applied to bind it and its union members. Any suggestion that the union’s contract rights are not affected by this decree is insupportable. Promotion, for example, is one of the most important subjects of collective bargaining. See NLRB v. E. C. Atkins & Co., 331 U.S. 898 , 413, 67 S.Ct. 1265, 1273 , 91 L.Ed. 1563, 1573 (1947). As Judge Rubin’s opinion demonstrates, it is undeniable that this decree affects promotions, merit increases, and job transfers that are embodied in an existing city ordinance, incorporated by reference in the FOP’s bargaining agreement.

We think it evident that what has been done below is to infringe the collective bargaining rights of the FOP and its members without either its consent or a trial, to subject it to a potential contempt order, and to enjoin it publicly from doing various reprehensible and illegal things that no one proved it had ever done or so much as thought of doing.

It seems elementary that one made a party to a lawsuit is entitled to his day in court before permanent relief is granted against him over his protest. This the FOP has not had. No amount of argument that this union has not shown how its rights were affected can obscure the fact that the question was begged below and its answer assumed: here there was no trial on the merits at which it might have made such a showing and tried out its claim that the consent decree, with its racial and sexual quotas, violates the fourteenth amendment and hence is generally infirm. 9

At trial, the union’s contentions may fail; they may deserve to fail. That is not the question. The question is whether the union can be enjoined over its protests without a trial on the merits, without notice, without evidence, without supporting findings of fact. We would answer that it cannot be. As to it, therefore, the entry of the consent decree and the injunction enforcing it should be vacated and the ease remanded.

As to the United States and the City of Miami — parties who did in fact consent to its entry — we would not absolutely vacate the entry of the decree. Nor, however, would we entirely affirm its entry or the permanent injunction incorporated in and enforcing it. Instead, in the exercise of our general equitable and supervisory powers, we would leave the decree in force pending that hearing on the merits to which the FOP is entitled and reduce the injunction enforcing it to a preliminary one. We would do so in order that the FOP might have its opportunity to make such constitutional and other contentions as it wishes regarding that decree at trial and to be certain that, should the court conclude at trial that the decree is invalid, as the FOP contends, it cannot be left in the incongruous position of declaring the decree “unlawful, unreasonable or inequitable” 10 but, bound by our affirmance, required to enforce it anyway against the City — thus indirectly, but effectively and in that event improperly, trammeling the rights of thousands of city employees unrepresented here. By so doing, we would leave the hands of the court below free to validate and reenter the decree across the board after a trial on the merits or, after that trial, to vacate the preliminary injunction and decree to whatever extent it should think fit. This we would do to preserve the status quo as we find it — the decree having been in place for several years and many actions having been *453 taken in reliance on it during that time— pending trial on the merits and, as well, to allow the trial court entire freedom regarding the decree in the light of evidence received at trial on the merits. 11

Should the United States and the City of Miami conclude that binding the FOP to their consent decree is not after all necessary to their purposes, they may of course seek its dismissal from the case and the reentry of the decree forthwith. What they may not do, we think, is agree among themselves about FOP’s legal rights and impose their agreement upon it with neither consent nor trial. Results are important. But, as we tirelessly reiterate in the criminal field, they may not, however desirable, be obtained in federal court at the expense of due process. Since these were, they cannot stand.

Those concurring in this opinion would decree relief as suggested above. As the court’s per curiam statement indicates, however, we are in full accord that at least the relief directed by Judge Rubin’s opinion should be granted the FOP. We therefore concur in the result mandated by his opinion, although we would have granted broader relief, and dissent from the failure of the court to do so.

. There is no question here of a summary judgment or of one somehow granted on the pleadings. No such motions were filed, heard, or so much as set for hearing; nor did the court give the parties the notice required by Rule 12, Fed. R.Civ.P., that it proposed to treat any anomalous request for relief as one for summary judgment.

. In addition to Title VII, violations of the fourteenth amendment and 42 U.S.C. §§ 1981 and 1983 were asserted.

. For a recent treatment highly critical of such procedures as semi-collusive, see Walter Berns, Let Me Call You Quota, Sweetheart, Commentary (May 1981).

. Florida law on the power of public bodies unilaterally to foreclose subjects of collective bargaining is arguably unclear, in the absence of a defintive pronouncement by the Florida Supreme Court. At least two recent decisions by intermediate appellate courts hold, however, that such unilateral changes in terms or conditions of employment, subjects of collective bargaining, are improper even though the terms changed are not covered by existing agreements. School Board v. Indian River County Education Association Local 3617, 373 So.2d 412 (Fla.App.—4th Dist. 1979); School Board v. Palowitch, 367 So.2d 730 (Fla.App.—4th Dist. 1979).

. A body that has rejected none of our many requests for assistance as to Florida law, despite having received over 30 in the last 20 years. There being few appropriate occasions to express our gratitude for its willingness to assist us, we take this one to do so.

. Notice of the hearing provided that it was to be one on the settling parties’ “Joint Motion, for Re-Entry of the Consent Decree.”

. This holding, if such it be, is, at the highest, one on a mixed question of law and fact. Indeed, in view of the absence of a trial on the merits, it could scarcely, if at all, partake of fact resolution. To characterize it as one of pure fact, to be tested by the “clearly erroneous standard” of Rule 52, Fed.R.Civ.P., would be mistaken, and clearly so. Eaton v. Courtaulds of North America, Inc., 578 F.2d 87 (5th Cir. 1978). It is difficult to envision an issue more purely legal than that of whether one written agreement, the consent decree, conflicts with another written compact, the existing collective bargaining agreement.

. Even consent decrees must not be entered if “unlawful, unreasonable or inequitable.” United States v. City of Alexandria, 614 F.2d 1358 , 1361 n.6 (5th Cir. 1980).

. United Steelworkers of America v. Weber, 443 U.S. 193 , 99 S.Ct. 2721 , 61 L.Ed.2d 480 (1979), concerns only Title VII and does not settle that matter. Nor does Fullilove v. Klutznick, 448 U.S. 448 , 100 S.Ct. 2758 , 65 L.Ed.2d 902 (1980), which treats a factual situation utterly dissimilar to this and rests, in part, on the power of Congress to place conditions on its expenditures of public funds.

. And therefore improper for entry. United States v. City of Alexandria, 614 F.2d at 1361 n.6.

. We need scarcely add that the City could not be forced by the FOP at trial to argue against the entry of a decree to which it has consented.