United States v. City of Miami

TJOFLAT, Circuit Judge,

dissenting:

I must dissent because I believe we do not have jurisdiction to resolve this case. Accordingly, I would dismiss this appeal, leaving the consent decree in effect.

It is axiomatic that this court is one of limited, statutory jurisdiction. Huckeby v. Frozen Food Express, 555 F.2d 542, 545 (5th Cir. 1977). See also 28 U.S.C. §§ 1291 & 1292 (1976). Thus, “[a]s a threshold issue, it is incumbent upon [us] to determine whether [we] may properly exercise . . . jurisdiction in each case.” United States v. Mendoza, 491 F.2d 534, 536 (5th Cir. 1974). See also Cason v. Owen, 578 F.2d 572, 573 (5th Cir. 1978). Upon examination, the facts of this case simply do not provide the necessary foundation for exercise of our power.

This appeal concerns a consent decree entered into by the United States and the City of Miami. In 1975, the United States filed a Title VII employment discrimination suit against the City of Miami, the Fraternal Order of Police (FOP), and various other parties. Prior to a trial on the merits, the United States and the City of Miami settled their differences. These parties memorialized their agreement in a proposed consent decree, which they submitted to the district court for approval. The district court approved this consent decree, concluding the litigation between the City of Miami and the United States. The district court retained jurisdiction over the FOP; there had as yet been no final decree disposing of the federal government’s claim against the FOP. This appeal by the FOP contesting the consent decree followed.

The panel that originally decided this case stated:

the consent decree orders no relief against the FOP. Unless the FOP can demonstrate that it has been ordered to take some action by the decree, or ordered not to take some action, or that its rights or legitimate interests have otherwise been affected, it has no right to prevent the other parties and the Court from signing the decree.

[N]o rights of the FOP are affected by the decree. United States v. Miami, 614 F.2d 1322 , 1329 (5th Cir. 1980). The majority, in my mind, has not refuted this determination. We are left, therefore, with the jurisdictional problem posed by the court’s insistence upon hearing an appeal brought by a party whose rights are left undisturbed by the consent decree entered below. Because the record reveals that none of the traditional avenues of jurisdiction is available to us in this case, the court’s action is clearly inappropriate.

Initially, it is clear that, as the decree does not affect the FOP, the district court has not entered a final judgment disposing *454 of the claims made against the FOP; the district court’s refusal to dismiss the FOP as a party to the action is an implicit acknowledgement that this is so. Thus, appeal cannot lie under 28 U.S.C. § 1291 (1976), the statute providing us with jurisdiction of appeals from final decisions of district courts, because that statute requires that, to be appealable, a judgment must dispose of all claims of all parties. Ray v. Texaco, Inc., 488 F.2d 1087 (5th Cir. 1973). See also Ryan v. Occidental Petroleum Corp., 577 F.2d 298, 300-301 (5th Cir. 1978). Similarly, because the consent decree does not affect the FOP’s rights, it is not an appealable interlocutory order under 28 U.S.C. § 1292 (a)(1) (1976). 1 Finally, while it is true that, under Fed.R.Civ.P. 54(b), appeals will lie from certain judgments that do not dispose of all claims of all parties, the district court in this case has not certified that this action meets the requirements of the rule. 2 Furthermore, even if the district court had certified this cause under Rule 54(b), the only parties that could have appealed thereunder are those parties affected by the injunction, the City of Miami and the United States. These parties, however, have already settled their litigation and thus have no role to play before this court. I am at a loss, therefore, to discern the basis for the exercise of jurisdiction in this case.

By acting outside the scope of its properly limited power, the court has abused its authority. Furthermore, by doing so under these circumstances, it will inevitably lead the district courts of this circuit astray in regard to the appealability of consent decrees that do not adjudicate the rights of all parties and dispose of the entire case, thus undermining the orderly process of settlement.

For these reasons, I respectfully dissent.

. Myers v. Gilman Paper Corp., 544 F.2d 837 (5th Cir.), cert. dismissed sub nom., international Brotherhood of Electrical Workers Local 741 v. Myers, 434 U.S. 801 , 98 S.Ct. 28 , 54 L.Ed.2d 59 (1977), cited by Judge Johnson in his dissent, infra, at 463 n.18, as authority for our exercise of jurisdiction in this case, dealt with a consent decree that expressly “ ‘supersede[d] and replace[d]’ provisions in [the union’s] collectively bargained .. . agreements”. Myers, 544 F.2d at 846 . See also id. at 843 & 845. The case is thus distinguishable, and does not support jurisdiction absent a consent decree’s infringement on the rights of an appealing party.

. Rule 54(b) of the Federal Rules of Civil Procedure provides that in actions involving multiple claims for relief or multiple parties an order that finally disposes of one or more but fewer than all the claims for relief asserted, or completely determines the rights and liabilities of one or more but fewer than all the parties, does not terminate the action in the district court and is subject to revision at any time prior to entry of a final decision unless the district court has (1) expressly determined that there is no just reason for delay, and (2) expressly directed entry of a judgment.

Huckeby, 555 F.2d at 545 (footnote omitted).