# Petition — Firefighters v. Stotts > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0549%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 467 U.S. 561 ## Text 82-206 er ise FILED AUG 4 1982 ALEXANDER L. STEVAS, RK ey No. 82- In the Supreme Court of the United States October Term, 1982 FIREFIGHTERS LOCAL UNION NO. 1784, Petitioner, VS. CARL W. STOTTS, et al., Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT J. ALAN HANOVER (Counsel of Record ) ALLEN S. BLAIR JAMEs R. Newsom III HANOVER, WALSH, JALENAK & BLAIR 219 Adams Avenue Memphis, Tennessee 38103 (901) 526-0621 Counsel for Petitioner E. L. Mewpewnatt, Ivc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-8080 QUESTION PRESENTED Whether a district court has the authority to modify a consent decree, silent in regard to layoffs, in such a man- ner that a bona fide seniority system calling for layoff by seniority is abrogated, in an action where there has been no adjudication of discrimination by the employer or the union. LIST OF PARTIES Petitioner Firefighters Local Union No. 1784 inter- vened in the district court and appeared as an appellant in Court of Appeals Nos. 81-5348 and 81-5349. Memphis Fire Department, Robert W. Walker, City of Memphis and Joseph Sabatini were also appellants below and have filed a separate petition contemporz ieously herewith. Carl W. Stotts, individually and as a class representative on behalf of all others similarly situated and Fred L. Jones appeared as appellees in Court of Appeals Nos. 81-5348 and 81-5349, respectively. TABLE OF CONTENTS Question Presented ...... siegsitiaidilinta aaah lichen ae I eee PERRO SO) FER, rt SM II IID on coccshsssstcuntepsunioseteanreeihis salen -dihiicmsaniiusiiiads l EE a IN RE 2 I 2 ECMO LE AIA 2 Reasons for Granting the Writ— 1. An Important Issue Is Presented Concerning the Extent of a District Court’s Authority to Modify a Consent Decree in a Title VII Case... 6 2. The Rationale of the Court of Appeals Under- mines the Incentives for Settlement of Em- ployment Discrimination Litigation —................. 9 EES SP On OR ee ne NE AW or 12 Appendix— Opinion of the Court of Appeals 2.000000... App. 1 Oral Ruling of the District Court ........000.......... App. 72 Order of the District Court 20000000000 App. 77 Memorandum of Understanding between City of Memphis, Tennessee and Firefighters Local Union No. 1784, 1975-1978 (Article XIX) .....App. 80 Relevant Statutory Provision 2000000000000... App. 82 TABLE OF AUTHORITIES Cases American Tobacco Co. v. Patterson, ........ ee , 102 ck cochulintunsiioaiedoiasindlia 7,8 Boston Chapter NAACP v. Beecher, ........ F.2d ........ , 28 FEP Cases 1657 (1st Cir. 1982) ................. aikinaieiaadmadaa 6,7 International Brotherhood of Teamsters v. United eB ees res 6-7 James v. Stockham Valves & Fittings Co., 559 F.2d 310 I ae 9 Pullman-Standard v. Swint, ........ US. ......... 102 §.Ct. SI telecine deh iata eee 7,9 Stotts v. Memphis Fire Department, 679 F.2d 541 (6th I a ll 1, 2, 6,9 Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 Eee sihicchinjeniieeecsiealnaiinieitenaiaidiiiasicibiasaiamaiae ae 8 United Airlines, Inc. v. Evans, 431 U.S. 553 (1977) ........ 7 United States v. Miam, 664 F.2d 435 (5th Cir. 1981) ... 12 United States v. Swift & Co., 286 U.S. 106 (1932) .......... 6 United States v. United Shoe Corp., 391 U.S. 244 (1968) 6 Statutes I, SD i esielinebaemcbihaseniiaces 2 $703(h) of Title VII of the Civil Rights Act of 1964. rt, MID... caccnsssseanedeseineinniians 2, 6, 7, 8, 12 0 one ee Peed 2 No. 82- In the Supreme Court of the United States October Term, 1982 FIREFIGHTERS LOCAL UNION NO. 1784, Petitioner, Vs. CARL W. STOTTS, et al., Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Firefighters Local Union No. 1784, intervenor-defen- dant in the district court, prays that a writ of certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Sixth Circuit in Stotts v. Memphis Fire Department (6th Cir. Nos. 81-5348 and 81- 5349, May 7, 1982). OPINIONS BELOW The judgment and opinion of the court of appeals of which review is sought is reported officially at 679 F.2d 541. It is unofficially reported at 28 Fair Employment Practice Cases 1491. The opinion is set forth in the ap- pendix to this petition at App. 1. The oral ruling of the district court, not reported, is reproduced in the appendix hereto at App. 72. The judgment and order of the district court, not reported, is reproduced in the appendix to this petition at App. 77. JURISDICTION The order of the Court of Appeals for the Sixth Cir- cuit was entered on May 7, 1982. The jurisdiction of this court is invoked under 28 U.S.C. §1254(1). STATUTE INVOLVED The statutory provision involved, §703(h) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-2(h), is set forth in the appendix beginning at App. 82. STATEMENT OF THE CASE These cases originally arose out of a controversy con- cerning the employment practices of the City of Memphis Fire Department. On February 16, 1977, Carl W. Stotts, a male black employee of the Department filed a class ac- tion lawsuit pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§2000e, et seq., and pursuant to 42 U.S.C. §§1981 and 1983. The complaint alleged that the Department maintained racially discriminatory hiring and promotional practices.’ At the time the Stotts case was filed, a prior consent decree had been approved and entered by the district court in 1974 in the context of a civil rights action brought against the City by the United States* The 1974 Decree, inter alia: (1) set forth general long-term goals for the 1. This action was later consolidated on September 18, 1979 with a similar case brought by Fred L. Jones alleging racially discriminatory promotional policies on the part of the Department. 2. The 1974 Decree is reproduced in part in the to the opinion of the court of appeals (App. at 52-58). 1980 Decree is reproduced in full in the opinion of the court of ap- 3 hiring of minority employees in all City divisions (App. at 55, 13); (2) made no adjudication of discrimination against the City (App. at 53); (3) contained a denial by the City that it had previously engaged in any pattern or practice of discrimination in hiring or promotion on the basis of race or sex (App. at 53); (4) provided that total or City-wide seniority of the employees should be considered for pur- poses of promotion, transfer and assignment (App. at 56, 16); and (5) stated that implementation of its goals was “subject to the anticipated budgeted vacancies in the City.”* The 1974 Decree did not address layoffs, reduction in rank and recall rights and contains no award of retro- active or “constructive” seniority. 3. The 1974 Decree provides as follows at paragraph 10 thereof: 10. Subject to the availability of qualified applicants, the City will establish and attempt to achieve from the date of this decree through June 30, 1976, the following goals: An interim goal of increasing the level of black employment in uniform positions in the Fire Division by five (5) per cent of the total uniformed personnel; an interim goal of increas- ing the level of black employment in the Police Division by seven (7) per cent of the total uniformed personnel, and an interim goal of increasing the level of female employment in uniformed positions in the Police Division (ot r than parking meter patrol) by between four (4) and five (5) per cent of total uniformed personnel, it being understood that a female black employee counts in both percentages. All of said goals are subject to the anticipated budgeted vacancies in the City. The Fire and Police Divisions shall be reviewed at the close of the initial period as specified abcve and goals for succeeding periods will be established which will be based on filling anticipated vacancies in these divisions with black and female personnel in approximately the same manner as in the initial period. No specific nu- merical ratio for employment of black or female patrol of- ficers or black fire fighters shall be established unless the City fails in its good faith attempt to meet | A interim goals established pursuant to this paragraph. The question of goals for female fire fighters will be reviewed by the parties at the end of the initial period. paragraph and pesqpreree 3 through 23 of the 1974 De- 10 bears upon the matter of “economic hardship i. 4 The original parties to Stotts agreed to a consent de- cree that was approved by the district court on May 16, 1980. The 1974 Decree provided the framework upon which the 1980 Decree was constructed. The 1980 Decree inter alia: (1) adopted the general long-term minority hiring goal provided in the 1974 Decree and additionally provided for interim minority hiring goals (App. at 64, 96); (2) made no adjudication of discrimination against the City; (3) contained no admission of any violation of law by the City ‘App. at 60); (4) stated that it was not intended to conflict with any provisions of the 1974 Decree, but was intended to “parallel and supplement” the relief therein provided (App. at 60) and (5) contained a waiver of the right to seek further relief except to enforce the provisions of the decree (App. at 61). The 1980 Decree, like the 1974 Decree, was silent with respect to layoffs or reduction in rank. The district court retained jurisdiction to effectuate the purposes of the 1980 Decree (App. at 69, {17). The immediate controversy crystallized in May, 1981 following the City’s announcement of a proposed operating budget that provided for a reduction in personnel in all divisions. The City also announced a Layoff Policy which was based upon a seniority system founded upon length of service with the City. The city-wide seniority system in- voked by the Layoff Policy was adopted by the City as a formal employment practice in 1973, is referred to in the 1974 Decree, and was incorporated into the City’s labor memoranda with Firefighters Local Union No. 1784 in 1975 (App. at 80) and has remained a part of succeeding memo- randa. On May 4, 1981, Stotts applied for and obtained a temporary restraining order from the district court re- straining the City from laying off or reducing in rank any black employee of the Department. The Union in- tervened in this litigation for the first time by consent of the parties on May 5, 1981, to protect the seniority system. An evidentiary hearing on Stotts’ request for a preliminary injunction was held by the district court on May 8, 1981. At the close of the hearing, the district court found that neither the 1974 Decree nor the 1980 Decree con- templated a method to be used for layoffs or reduction in rank (App. at 73). However, the court held that it did possess the authority to modify the 1980 Decree by enjoining the City from applying the proposed Layoff Pol- icy based on city-wide seniority insofar as it would decrease the percentage of minority employees in certain ranks within the Department (App. at 75). With respect to the Layoff Policy and seniority system, the district court made this finding: I do find that the adoption of this layoff policy was not adopted with the intent or specific purpose to discriminate against black, and I find no reason - well, neither the layoff nor the policy adopted was intended to be discriminatory. However, I find it inescapable that the effect is discriminatory. (App. at 73) However, because the effect of that, and the proposed system is in effect discriminatory, I find that such a position is not a bona iide seniority system. (App. at 74) Judgment on the district court’s ruling was entered on May 18, 1981 (App. at 77). The Union and the City timely noticed their appeals on the same day. On May 7, 1982, the court of appeals affirmed the district court. Although finding that the district court had erred in ruling that the seniority system was non-bona fide, the court of appeals held that the district court did not abuse its discretion in modifying the 1980 Decree. REASONS FOR GRANTING THE WRIT 1. An Important Issue Is Presented Concerning the Extent of a District Court’s Authority to Modify a Consent Decree in a Title VII Case. The decision of the court of appeals decides an im- portant question of federal law which has not been but should be decided by this Honorable Court. Despite the “special treatment” afforded to seniority systems by §703 (h) of Title VII of the Civil Rights Act of 1964, the courts below have abrogated a bona fide seniority system pro- tected by §703(h). Im reality, the courts below have violated one section of Title VII to remedy alleged vio- lations of Title VII. Crucial to the Stotts opinion, like the recent opinion of the First Circuit in Boston Chapter NAACP v. Beecher, Siteis F.2d ....... 28 FEP Cases 1657 (lst Cir. 1982), is the conclusion that a district court has the authority, pur- suant to its equitable jurisdiction, to modify consent de- crees in Title VII cases in order to meet previously un- anticipated circumstances. The court of appeals draws its rationale in large part from decisional authority of this Court developed in the context of antitrust litigation. See United States v. United Shoe Corp., 391 US. 244 (1968); United States v. Swift & Co., 286 U.S. 106 (1932). This authority is distinguishable because those cases did not involve situations where a district court’s authority to modify was limited by a congressionally mandated exemp- tion to the law’s application. The instant cases do. Specifically, $703(h) of the Civil Rights Act of 1964, 42 U.S.C. §2000e-2(h) immunizes bona fide seniority sys- tems from challenge under Title VII, even where such systems operate to perpetuate the effects of discrimination. International Brotherhood of Teamsters v. United States, 7 431 U.S. 324 (1977); United Airlines, Inc. v. Evans, 431 U.S. 553 (1977). Pursuant to §703(h), a showing of dis- parate impact is insufficient to invalidate a seniority sys- tem. A discriminatory purpose must be proven, requiring a trial on the issue of discriminatory intent. Pullman- Standard v. Swint, .... US. ....., 102 S.Ct. 1781, 1784 (1982). The district court's finding that the seniority system was non-bona fide was vacated by the court of appeals as being in conflict with prior authority of this Court (App. at 11 n.6; 41). No discriminatory purpose was proven. There has been no adjudication of discrimination against the City, the Department or the Union in this litigation or its antecedent. Compare, Boston Chapter NAACP v. Beecher, ..... F.2d ....., 28 FEP Cases 1657 (1st Cir. 1982). Yet, the courts below chose to ignore the protection that §703(h) afforded to the seniority sys- tem in question. In fact, tnose courts violated §703(h) by ignoring it and granting plaintiffs relief which abro- gated the system. Neither the broad remedial nature of Title VII nor the broad discretion conferred to the district court in ad- ministering consent decrees can justify the orders below. This Court has concluded that §703(h) imposes significant restraints upon the authority of district courts to set aside seniority systems in effectuating affirmative relief. See American Tobacco Co. v. Patterson, ........ a S.Ct. 1534, 1541 (1982). The court of appeals has failed to provide convincing reasons why the dictates of §703(h) should be ignored when providing similar affirmative relief by modifying a consent decree, particularly where there has been no adjudication of discrimination. Though the court of appeals mimics the previous rulings of this Court, it fails to apply their substance. 8 The court of appeals insists that the district court acted within the limits of its broad equitable discretion in administering consent decrees, as a result of the changed circumstances occasioned by the proposed layoffs (App. at 31-32, 35-37).* Yet the court offers no cogent explana- tion why the authority of the district court to modify the consent decree is not limited by §703(h). The decisional authority of this Court has emphasized that seniority systems are afforded “special treatment” under Title VII itself. Trans World Airlines, Inc. v. Hardi- son, 432 U.S. 63, 81 (1977). The court of appeals makes no mention of the importance which Congress and this Court have accorded to seniority systems and collective bargaining. See Patterson, 102 S.Ct. at 1541 n.17 (1982). As this Court has stated, in a proper circumstance, an appropriate remedy for adoption of a discriminatory senior- ity system might likely include an injunction against the application of the system. “Such an injunction, however, would lie only if the requirement of §703(h) - that such application be intentionally discriminatory - were satisfied.” Id. at 1538. 4. The court of appeals finds applicable two of the three grounds on which consent decrees generally may be modified (App. at 31-37). In addition to finding that the district court acted within its “equitable discretion,” the court also proffers a contractual interpretation rationale. The Court unabashedly ignores relevant provisions of the two consent decrees in finding that the district court’s modification was in accordance with “basic contract principles” (App. at 31, 32-34). The decrees did no more than mandate performance expectations in the areas of hiring and promotions, if hiring and promotions were made. They required neither hiring nor promotions to be made. T’ e° proposed Layoff Policy did not repudiate the City’s responsibilities in either area. Also, the decrees acknowledge that the implementation of their terms is subject to budgetary restrictions (See note 3, supra); that seniority is a legitimate consideration in employment decisions by the City (App. at 56, 16); and that any further relief is waived except to the extent necessary to enforce the provisions of the decrees (App. at 61). The court of appeals fails to engage in an a eee © See Se Se ee contractual SS n fact, F court of appeals’ cision is in all respects a aed ted decision. 9 The injunction of the district court modifying the 1980 Decree was not applied in a proper context. As the court of appeals acknowledged, “the layoff policy was not adopted with a discriminatery purpose.” (App. at 11 n.6). Neither has there been an adjudication that the seniority system is not neutral; that it is irrational in light of general practice; that the system had its genesis in racial discrim- ination; or that the system was negotiated and maintained without freedom from any illegal purposes. See Swint, 102 S.Ct. at 1784, 1785; James v. Stockham Valves & Fittings Co., 559 F 2d 310 (5th Cir. 1977). Not only is there no proof in the record indicating that the seniority system herein is non-bona fide, neither is there any previous adjudication of intentiona] discrim- ination in the record with regards to the City, the Depart- ment or the Union which might lead to an inference of intentional discrimination. What is apparent is that the courts below - purportedly acting pursuant to their equi- table jurisdiction to effectuate the purposes of Title VII - have exceeded their authority under Title VII by violating Title VII in the name of remedying alleged violations of that statute. This practice ignores relevant provisions of the very statute which the court of appeals purports to uphold. The decision of the court of appeals must not be permitted to stand. 2. The Rationale of the Court of Appeals Undermines the Incentives for Settlement of Employment Dis- crimination Litigation. The decision of the court of appeals places in consider- able jeopardy the prospect for settlement of future Title VII cases. It does so by removing the incentives for settle- ment. Should the Stotts opinion stand, employers and unions in the future will view it as a signal that consent 10 decrees in Title VII cases render unto district courts un- limited authority to confer relief to plaintiffs beyond the negotiated parameters of the decrees upon the outset of unanticipated circumstances. In effect, no one will be certain that the settlement agreed to will be the settlement implemented in the long run. As a result, it can be rea- sonably anticipated that employers shall become reluctant to settle and unions shall step forward to object to the entry of consent decrees even when their interests are not obviously implicated. The approach of the court of appeals is that the parties to an employment discrimination suit, and even non-par- ties, relinquish the right to litigate all possible issues, even issues unforeseen, once a consent decree is entered (App. at 24). While plaintiffs forego the possibility of receiving such relief as back pay and promotions which they might obtain if they prove their allegations, defendants are said by the court of appeals to relinquish “the right to rebut the allegations of discrimination” contained in the plaintiffs’ complaint and to “avoid the affirmative responsibilities im- posed by a judicial finding of discrimination.” (App. at 24). The district court is conferred the authority to po- lice the implementation of the decree, including the power to require specific performance of its terms, even if eco- nomic hardship ensues (App. at 24, 32-33). The court of appeals holds that the district court’s policing authority encompasses the power to modify the decree upon changed circumstances to effectuate the purposes of the decree. However, what the court of appeals has allowed the district court to do herein is to completely disregard the law and the congressional mandate behind the law as to seniority systems, regarding an issue not addressed in the plead- ings and orders in the case, in the name of policing the consent decree. Rather than eliminating the uncertain- ties of litigation, this approach imposes upon parties and 11 even upon nonparties the threat of continuing uncer- tainties. This result is clearly illustrated by the instant case. Importantly, the 1974 Decree makes no adjudication of discrimination (App. at 53). The 1974 Decree contains evidence that the City did not relinquish its right to rebut the allegations of discrimination made against it. The City expressly denied in the 1974 Decree itself that it had previ- ously engaged in any pattern or practice of discrimination in hiring or promotion on the basis of race or sex (App. at 53). The 1974 Decree conditioned implementation upon the existence of “anticipated budgeted vacancies” (see note 3). The language of the 1974 Decree did not give the Union cause for concern that the city-wide seniority system then in effect would be compromised; to the con- trary, the 1974 Decree endorses the system (App. at 56, 16). The 1980 Decree also makes no adjudication of dis- crimination, nor does it contain an admission of discrim- ination (App. at 60). As the 1980 Decree supplements and parallels the 1974 Decree (App. at 60), the City’s denial of intentional discrimination in the 1974 Decree is equally applicable thereto as is the provision concerning condi- tional implementation (see App. at 53; note 3). In stark contrast to the approach of the court of appeals, the 1980 Decree contains a waiver of the plaintiffs’ right to seek further relief except to enforce the ‘‘four corners” of the decree (App. at 61). Again, the Union was not placed on notice by the 1980 Decree that its collectively-bargained seniority system could be abrogated upon the advent of changed circumstances. The approach of the court of appeals is fundamentally at odds with the understanding of the parties as reflected in the decrees at issue herein. Rather than encouraging compromise and settlement, the approach of the court of 12 appeals fosters uncertainties that reduce the incentive of employers to settle employment discrimination litigation and increase the likelihood of challenges from concerned third parties, particularly labor unions, that would neces- sitate a trial on the merits. See, e.g., United States v. Miami, 664 F.2d 435 (5th Cir. 1981). CONCLUSION The issue presented by this petition is certain to recur. The court of appeals has simpiy ignored the congressional mandate of §703(h) and the authorities of this Court in- terpreting that statutory provision. The Court should grant a writ of certiorari to ensure consistency of statutory interpretation and implementation and to avoid irreparable damage to the incentives for defendants to settle employ- ment discrimination cases. For these reasons, a writ of certiorari should issue to review the judgment and opinion of the United States Court of Appeals for the Sixth Circuit. Respectfully submitted, J. ALAN HANOVER (Counsel of Record) ALLEN S. BLAIR JAMES R. Newsom III HANOVER, WALSH, JALENAK & BLAIR 219 Adams Avenue Memphis, Tennessee 38103 (901) 526-0621 Counsel for Petitioner Al APPENDIX Nos. 81-5348-9 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Cart. W. Storrs, Individually and on | behalf of all others similarly situ- ated, Plaintiffs-Appellees, and Frep L. Jones, Plaintiff-Appellee,| ON Arpeat from the United States District Court for the West- Mempuis Free DePpanTMENT; Rosert| ¢™ District of Ten- W. Wa xxer, City oF Mempuis, and| messee. Joseru SABATINI, Defendants-Appellants, Vv. and Frrericnters Locat Union 1784, Defendant-Intervenor-Appellant. Decided and Filed May 7, 1982. Before: KerrH and Mantin, Circuit Judges and Duncan.* Kertn, Circuit Judge, delivered the opinion of the court, in which Duncan, Circuit Judge, joined. Manrtix, Circuit Judge (pp. 46-51), delivered a separate epuien, concurring and dissenting in part. * Hon. Robert M. Duncan, U.S. District Court for the Southern District of Ohio, sitting by designation. A2 Kertn, Circuit Judge. This case presents questions regard- ing the entry and modification of a consent decree in an employment discrimination case. In 1977, Plaintiff-appellee Carl Stotts filed a class action against the City of Memphis, alleging that the Fire Department's hiring and promotion policies were racially discriminatory. After three years of discovery and intensive negotiations, the Stotts suit was settled by a consent decree in 1980 (“1980 Decree”). No trial was held. The 1980 Decree was intended to supplement an earlier consent decree entered in 1974 which affected em- ployment practices in al) divisions of the Memphis city gov- ernment. The 1980 Decree provides for back-pay awards and an affirmative action plan containing specific hiring and pro- motion goals. The decree does not specifically address the effect layoffs would have on these affirmative action goals. In 1981, the City of Memphis announced that city-wide layoffs were necessary to alleviate an unanticipated economic crisis. The proposed layoffs in the Fire Department threat- ened to frustrate the purpose of the decrees and the progress accomplished under them. Minority employment in the Fire Department would have been devastated by the proposed layoffs. Plaintiff Stotts filed a motion to restrain the City of Memphis from implementing the layoff proposal in a manner which affected minority firemen. The district court found that the proposed layoffs were an unanticipated change in circumstance not contemplated by the consent decrees. Ac- cordingly, the court modified the decrees and enjoined the proposed layoffs and demotions of minority firemen. We affirm. A3 I. FACTS In 1974, the United States Department of Justice (“Gov- ernment”) instituted an action against the City of Memphis (“City”) under Title VII, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981,' the Fourteenth Amendment, and the State and Local Fiscal Assistance Act of 1972, 3i U.S.C. § 122) et seq. The complaint alleged that the Fire Department and various other City divisions had engaged in a pattern or practice of race and sex discrimination in hiring and promotions. The City initially denied the allegations. Later in 1974, however, it agreed to settle the litigation with a consent decree (“1974 Decree” ).? The motivation for the 1974 Decree was the desire to remedy past discrimination and avoid the delay and expense of further litigation. In the decree, the City did not admit to any misconduct. The City did acknowledge, however, that its employment practices may create an inference of racial and sexual discrimination. The purpose of the 1974 Decree is to remedy any disad- vantage to blacks and women which may have resulted from past discrimination. Subject only to the availability of qual- ified applicants, the City agreed to undertake the “goal of achieving throughout the work force proportions of minority and female employees in each job classification approximating their respective proportions in the civilian labor force.” The decree established interim hiring goals for each of the City’s divisions. The interim goal affecting the Fire Department required that minority employment in the uniformed positions 1§ 1981 provides: on wate Se ay any of the Lah tes shall ve same rig Ty ~y Territory ma enforce contracts, to sue, be parties, give evidence, and Tyal Tyg Bap hy Xa of and propert is b citizens shall be subject to like ‘punishment pain, ties, taxes, licenses, and exactions of every kind, and to 1, 2 See appendix page 1. A4 increase by 5% before July of 1976. The decree also required the City to “engage in affirmative recruitment activities con- sistent with their obligation to take all reasonable steps to reach the goals set forth” in the decree. Specific numerical hiring ratios would be established if the City failed in its good faith attempt to meet the interim hiring goal. The 1974 Decree did not establish specific minority employ- ment goals for the ranks above firefighter. However, the decree acknowledged the need to increase substantially the number of minorities in supervisory positions. In fact, the decree committed the City to “making significant progress in increasing the number of black and female supervisory per- sonnel.” Numerical promotional goals could be imposed if the City’s performance during the preceding fiscal year did not satisfy its obligations under the decree. On February 16, 1977, Carl Stotts, plaintiff-appellee, filed a class action suit against the Memphis Fire Department. His complaint alleged that the Fire Department's hiring and pro- motion policies violated Title VII, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and 42 U.S.C. § 1983.3 The Pioneers, a group of approximately 70 minority Mem- phis firemen, filed a motion to intervene in the Stotts case. The trial court denied the Pioneers’ motion to intervene, but certified the case as a class action. During the following months, the Stotts case received extensive attention in the local media. The press coverace included several articles describing the Stotts case and its effect on the Fire Depart- ment. 34$1983 provides: Every person ~vho, under color of any statute, ordinance, or causes to be subjected, any citizen of the ‘States or other person within the ju thereof to the deprivation of any rights, privileges, or immunities secured by the Consti- A5 On June 19, 1979, Fred Jones, plaintiff-appellee, filed an action against the City, alleging that the Fire Department had denied him a promotion solely because of his race. The Jones and Stotts cases were consolidated in September. On September 27, District Judge McRae set a trial date for the Stotts case but, nonetheless, encouraged the parties to settle the action. In December, Plaintiffs-appeliees Stotts and Jones (“Plain- tiffs”) filed a motion for a temporary restraining order (“TRO”) to enjoin the City from making promotions within the Fire Prevention Bureau. The Plaintiffs stated they would be irreparably harmed if the scheduled promotions occurred. As proposed, the promotions would fill certain positions and prevent minorities from acquiring the experience necessary to qualify them for supervisory positions. The City opposed the motion, arguing that the promotions were necessary for the efficient operation of the Fire Department. The creation of acting or temporary positions would create instability with- in the department. The City stated emphatically, “We do need to make the promotions.” The trial court granted the TRO after finding that, “there would be irreparable harm if promotions were granted that were not consistent with the rights of the plaintiffs.” On January 17, 1980, the City appeared before Judge McRae and stated that scttlement negotiations were contin- ui g. On February 20, 1980, both the City and Plaintiffs appeared before the court and stated that the settlement was complete “except for about five different things.” Five days later, the parties again appcared before the court and stated that negotiations concerning the settlement were continuing despite some difficulties concerning the affirmative relief and monitoring sections of the proposed settlement. Finally, on April 25, 1980, the parties announced that they had reached a settlement. The settlement consisted of an affirmative action plan embodied in the 1980 Decree. The 1980 Decree contained hiring and promotion goals. The 15 days in the Memphis Fire Stations for comment. Counsel also stated that he thought the Firefighters Local Union 1784 (“Firefighters Union”) might object to the decree. The purpose of the 1980 Decree was to remedy the past hiring and promotions practices of the Memphis Fire Depart- ment relative to minorities. The 1980 Decree was intended to parallel and supplement the relief provided in the 1974 Decree. The decree reaffirmed the City’s commitment to achieve the long-term goal of increasing minority representa- tion in each job classification to levels approximating the level of minority representation in the Shelby County labor force. The 1980 Decree also established specific hiring and promo- tion goals. The hiring goal stated that qualified minorities should fill at least 50% of all vacancies. The promotional goal indicated that qualified minorities should receive 20% of the vacancies. The promotional goal was adopted to “insure as quickly as practicable the attainment of [the] long range goal.” Back pay in the amount of $60,000 was also awarded to class members in varying amounts according to their length of service. In addition, the decree required the trial court to retain jurisdiction to make “such further orders as may be necessary or appropriate to effectuate the purposes of this decree.” Neither the Firefighters Union nor any class member filed an objection to the decree during the 15 day period. On May 12, 1980, however, a group of eleven non-minority fire- men objected to the entry of the 1980 Decree and filed a motion to intervene. These proposed intervenors filed on behalf of themselves and allegedly all other non-minority firemen. The non-minority firemen were not, however, repre- sentatives of the Firefighters Union, the union representative of Memphis firemen. A7 The non-minoritics asserted that the promotional goals con- tained in the 1980 Decree operated as “reverse discrimination against the non-minorities.” The non-minorities also asserted that less burdensome alternative relief for minority employees was available which did not shift discrimination to non- minority employees. These alternatives included the creation of additional positions for promotion, organizational restruc- turing of the Memphis Fire Department, constructive promo- tion,* and the payment of monetary damages to non-minority employees affected by the decree. On May 16, 1980, the court held a hearing. The court heard objections to the 1980 Decree and the motion to inter- vene. No class member filed an objection to the decree. The proposed intervenors indicated that the only immediate re- lief they sought was a delay in the approval of the promo- tion section of the decree. Allegedly, additional discovery and expert statistical analysis were necessary before concrete alternative remedies for the past discrimination minorities ex- perienced could be presented. The proposed intervenors’ position was that the decree should not have any affect on the promotional opportunities of incumbent employees. The proposed intervenors did not argue that the relief provided in the 1980 Decree unduly burdened a readily identifiable, small group of incumbent employees. Nor did the proposed The court denied the proposed intervenors’ motior to inter- vene after finding that the proposed intervenors adopted a “wait-and-see” approach to the litigation. The alternatives suggested by the proposed intervenors were also considered and rejected. Continuation of the TRO would unduly hamper the functioning of the Fire Department. The court also A8 opined that it could take judicial notice that the City’s past employment practices were racially discriminatory based on evidence contained in the record. Ultimately, the court deter- mined that the 1980 Decree was “reasonable”. On May 4, 1981, Joseph Sabatini, Director of Personnel for the City, publicly announced a personnel reduction in non- essential services in all divisions of the City government. The proposed layoffs were the first in the City’s history. The City’s layoff policy was based on an individual's city-wide union seniority, that is, the length of his tenure as a city employee. The seniority system was mentioned in the 1974 Decree and is incorporated in the City’s memorandum of understanding with the Union. A deficit in the City’s projected operating budget prompted the proposed layoffs. The deficit was caused by an unan- ticipated decrease in the general revenue funds from the 1980-81 fiscal year and an increase in operating costs. Plain- tiffs were not given an opportunity to review the City’s layoff policy before it was announced publicly. The Mayor had ultimate authority to determine which job classifications within the city government were affected by the new layoff policy. On May 4, 1981, Plaintiffs obtained a TRO restraining the City from laying off or reducing in rank any minority em- ployee in the Memphis Fire Department. The parties con- sented to the intervention of the Firefighters Union in the Stotts case the next day. An evidentiary hearing was held on May 8 to consider Plaintiffs’ request for a preliminary injunction. The court made severa) determinations. First, the announced layoffs and demotions were an unanticipated changed circumstance not provided for in the text of the decree. Second, the 1980 Decree was designed to correct the effects of the City’s hiring and promotion practices Finally, the court concluded that the proposed layoffs would have a devastating and retrogres- sive effect on minority employment and the affirmative action accoinplished pursuant to the consent decrees. Most minori- Ag ties above the rank of private had accrued little seniority in their respective ranks. Consequently, nearly 60% of all fire- men affected by the demotions would have been minorities. Moreover, fifty-five percent of all minority Lieutenants and 46% of all minority Drivers would either have been laid off or demoted if the announced layoffs had occurred. Based on this and other evidence in the record,’ the court 5 Between 1950 and 1976, the Memphis Fire Department hired 94 black and 1683 white firemen. Promotions within the Fire Depart- ment between the years of 1969 and 1975 were as follows: MEMPHIS FIRE DEPARTMENT PROMOTIONS 1969 Black White Lieutenant 1 17 1970 Black White Driver 1 60 1971 Black White Driver 1 13 Lieutenant 0 15 Captain 0 1 1972 Black White Drivers 2 128 Lieutenant 1 57 Investigator — Lieutenant 0 6 Captain 0 2 1973 Black White Investigator — Captain 0 5 Captain 0 3 Emergency Unit — Lieutenant 0 4 1974 Black White Driver 1 39 Lieutenant 0 21 1975 Biack White Driver 0 8 Lieutenant 0 5 Captain 0 2 In 19798, blacks constituted between 33 ard 37 percent of the was only 10 Al0 Il. Total APPARATUS MAINTENANCE Vehicle Serviceman Preventive Maintenance Fire Maintenance Mechanic District Chief Total MATERIAL SERVICES Storage Keeper Crewman Building Maintenance Supervisor Manager : : ~ ——wnwl es All ruled that the layoff policy would have a discriminatory impact and the seniority system was non-bona fide. Subsequently, the court modified the consent decree to minimize the disrup- BLACK WHITE Vil. FIRE PREVENTION Home Fire Safety Representative Parts Assistant Master Plans Coordinator Fire \nspector Fire Investigator anager Tiss Vevention Supervisor Fine Safety Ed. Coord. Deputy Fire Marshall Assistant Fire Marsha!) Fire Marshall Total VIIlL. FIRE FIGHTING Fire Private I Fire Private II ed ed tad os | cooooowroow oe tain Air Crash Chief District Chief Deputy Chief Total IX. AMBULANCE SERVICE Emergency Unit Operator Emer, Unit Lieutenant District Total 7 (As of May 8, 1981) In Teamsters, supra, the Supreme Court stated statistics indicating racial imbalance are often “a telliale sign of purposeful discrimina- tion.” It is ordinarily qupested that nondiscriminatory hiring prac- tices will in time result in a workforce more or less A 3-0 of the racial composition of the city. Id. at 340, n.20. in Ge comns of 1981, blacks constituted only 11 percent of the Memphis Fire A ly 35 percent of the City of Memphis is 7 e : coo~neso as a coon hClm ~ - black. The sta contained in this record represent @ very strong prima facie case of employment discrimination. @The district court erred in ruling that the seniority system was non-bona fide. The district court found that the policy was —,. Ek ety | - bine By tery been appeal. aylor v. Mueller 1122 (6th Cir, 1981)” The district court did find that the layoffs Al2 tive effect the layoffs would have on the efforts to achieve the goals of the decree. The court enjoined the City from applying the layoff policy based on seniority insofar as it would decrease the percentage of black Lieutena.its, Drivers, Inspectors, and Privates employed in the Memphis Fire De- partment. The City and the Union appealed. On June 22, 1981, Plaintiffs filed a motion requesting the court to enjoin the proposed layoffs and demotions of minority employees in five additional positions. After a hearing on the motion, the court expanded the preliminary injunction to include three of the five positions. Both the City and the Union filed a motion with the trial court to stay its injunction pending appeal. The trial court denied the stay on May 18, 1981. On June 25, 1981, a panel of this Court also denied the motion for a stay pending appeal. INTRODUCTION The principal issue raised on appeal is whether the district court erred in modifying the 1980 Decree to prevent minority employment from being affected disproportionately by unan- ticipated layoffs. This issue, however, cannot be properly addressed until it is first determined whether the underlying consent decree is fair and reasonable. Only a reasonable consent decree can be validity modified. Thus, we must first discuss the procedure for approving consent decrees. PRELIMINARY APPROVAL Before preliminarily approving a consent decree, a court must first determine that the decree is the result of good faith, arms-length negotiations. United States v. Miami, 614 F.2d 1322, 1330-31 on reh., 664 F.2d 435 (5th Cir. 1981); Flinn v. FMC Corp., 528 F.2d 1169, 1173 (2d Cir. 1975), cert. denied, 424 U.S. 967 (1976). A preliminarily approved decree is presumptively reasonable. See Metropolitan Hous- Al3 ing Development Corp. v. Village of Arlington Heigh.s, 616 F.2d 1006, 1013 (7th Cir. 1980); United States v. Philadelphia, $31,327 (%.D. Penn. 1980). Notice of the preliminarily ap- proved decree must be given to class members and others who may be affected by the decree. See Village of Arling- ton Heights, 616 F.2d at 1014. A hearing should be held after an appropriate period of time. The hearing should be a forum in which any comments and objections to the de- cree can be aired. Village of Arlington Heights, 616 F.2d at 1014; Equa! Employment Opportunity Commission v. Amer- ican Telephone and Telegraph Co., 556 F.2d 167, 173 (3d Cir. 1977), cert. denied sub nom; Communication Workers of America v. EEOC, 438 U.S. 915 (1978); Dennison v. Los Angeles, 658 F.2d 694, 695-96 (9th Cir. 1981); Baker v. Detroit, 504 F.Supp. 841, 847 (E.D. Mich. 1980) In the instant case, the parties engaged in extensive dis- covery and were fully prepared for trial before they reached a settlement. The “ity’s behavior during discovery was de- scribed by the discrict court as “obstructionist”. The City bitterly contested the TRO which enjoined certain promotions in the Fire Department pending the outcome of the Stotts litigation. Four months before the 1980 Decree was an- nounced, the City informed the court that settlement nego- tiations were continuing. On February 20, 1980, it appeared that settlement negotiations were nearly complete. Five days later, however, the parties appeared before the court and stated that the affirmative relief and monitoring sections of the decree were a source of disagreement. A final agree- ment on the terms of the 1980 Decree was not reached until nearly two months later on April 25, 1980. The court pre- liminarily approved the decree and posted it in the fire halls for two weeks.’ At the end of the two week period, the court 7 We express no opinion on the adequacy of the notice afforded by the posting procedure wtiliaed tn Gus ease. ~%)~— made to the ing procedure either in the district court or on . appeal. Accordingly, we do not address the notice issue. Al4 held a hearing to consider objections to the decree. Subse- quently, the court determined that the decree was a product of arms-length negotiations.* The procedure adopted by Judge McRae in preliminarily approving the decree was adequate. REASONABLENESS HEARING The determination of whether the decree is adequate, fair, and reasonable should only occur after the court has had an opportunity to hold a hearing to consider objections to the decree. See, e.g., Village of Arlington Heights, 616 F.2d at 1014; Airline Stewards and Stewardesses Assoc. vy. American Airlines, 573 F.2d 960, 964 (7th Cir. 1978) (per curiam), cert. denied sub nom., Assoc. of Professional Flight Attendants v. Airline Stewards and Stewardesses Assoc., 438 U.S. 876 (1978); Culbreath v. Dukakis, 630 F.2d 15, 23 (1st Cir. 1980); Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977); Miami, 614 F.2d at 1331-1334. This reasonableness determination is an issue of law to be determined by the court. See Setser v. Novack Invest. Co., 657 F.2d 962, 969 (8th Cir. 1981), cert. denied, —— U.S. —, 102 S.Ct. 615 (1981); Baker, 504 F.Supp. at 843 n.l. The court should not determine the merits of the controversy or the precise facts underlying the legal positions of the litigants presenting the consent decree. See Swift & Co. v. United States, 276 U.S. 311, 324 (1928); Airline Stewards and Stewardesses Assoc., 573 F.2d at 963-64. Instead, the court should merely satisfy itself that the decree is reasonable. tm making the reasonableness determination, the court is under a duty to evaluate three factors. First, the court must consider whether the decree is a fair and adequate resolution 8The better practice is to determine that the decree is not the product of collusion before the decree is preliminarily approved. Al5 of the allegations contained in the complaint.* See FMC Corp., 528 F.2d at 1172; United States v. Trucking Em- ployers, Inc., 561 F.2d 313, 317 (D.C. Cir. 1977); later app., United States v. Trucking Management, Inc., 662 F.2d 36 (D.C. Cir. 1981). Cotton, 559 F.2d at 1330. Ordinarily, the fol- lowing factors will be considered: 1) the complexity, expense and likely duration of the litigation; 2) the stage of the proceed- ings and the amount of discovery completed; 3) the risks of lit- igation; 4) the resources of the defendant; and 5) the reason- ableness of the settlement in light of the best possible recovery. See FMC Corp., 528 F.2d at 1173; Ingram v. Madison Square Garden Center, Inc., 21 EPD {% 30,393, 13,254 (S.D. N.Y. 1979); Women’s Committee v. National Broadcasting Co., 76 F.R.D. 173, 175 (S.D. N.Y. 1977). The court should be sensitive to the objections made by class members. FMC Corp., 528 F.2d at 1173; Cotton, 559 F.2d at 1331. Second, the court must consider whether the decree is fair and reasona!:le to non-minorities who may be affected by it. Vulcan Society v. White Plains Fire Department, 505 F. Supp. 955 (S.D. N.Y. 1981). American Airline Stewards and Stewardesses, 573 F.2d at 964. An identifiable statistical disparity must exist before a decree may embody affirmative relief provisions.'® See United Steelworkers v. Weber, 443 U.S. 193, 208 (1979), on remand, Weber v. Kaiser Aluminum & Chemical Corp., 611 F.2d 132 (5th Cir. 1980). The affirma- * The effects of ciscriminatory pre-Act and post-Act em =r may be remedied by an affirmative action plan 2 @ qotsens Cues. See Detroit Police Officers Association, 608 F.2d a 10 The ste" stical imbalance need not be so great as to constitute bed, 968 <6 facie case. See Setser v. Novak Investment Co., 657 F.2d 968 (8th Cir. 1981); seers Sueno eee Ene, SS ae at 689, In the context of of consent decrees A Gf AAT the disclaimer of to be an cannot unequivocally ‘explain, together” wi the defendants Al6 tive relief provisions must be reasonably related to the re- medial purpose of correcting the racial imbalance in the work- force. See Valentine v. Smith, 654 F.2d 503, 510-511 (8th Cir. 1981); Lehman v. Yellow Freight System, Inc., 651 F.2d 520, 526-527 (7th Cir. 1981); Detroit Police Officers Associ- ation v. Young, 608 F.2d 671, 694-698 (6th Cir. 1979), cert. de- nied, —— U.S. ——, 101 S.Ct. 3079 (1981); United States v. City of Alexandria, 614 F.2d 1358, 1366 (5th Cir. 1980); Setser, 657 F.2d at 968, 969. See also United Steelworkers v. Weber, supra. The terms of the decree cannot require the discharge of non- minority workers and their replacement with minorities. Id. The decree’s provisions cannot bar absolutely the advancement opportunities of non-minorities. 1d. Moreover, the decree must be a temporary remedy designed to terminate when it has elim- inated the racial imbalance. Id. The decree cannot mandate the hiring or promotion of unqualified individuals. Id. Final- ly, the court shall retain jurisdiction over the administration of the decree and make such further orders as are necessary. Specific race-conscious hiring and promotion goals and ratios are appropriate elements of consent decrees. The goal of achieving racial diversity in the top ranks of city govern- ment is not only reasonable, but a legitimate constitutionally permissible interest a city may pursue. See Talbert v. Rich- mond, 648 F.2d 925, 931 (4th Cir. 1981); Detroit Police Officers Assoc., supra. This interest justifies individual consid- eration of race. No decision of the Supreme Court has ever adopted the proposition that the Constitution must be color- blind. See Bakke, 438 U.S. 265, 336 (1978); Miami, 614 F.2d at 1336. On the contrary, the Supreme Court has approved race-conscious affirmative action in a wide variety of situations where it is an attempt to ameliorate the effects of past dis- crimination. See United Jewish Organizations v. Carey, 430 U.S. 144 (1977) (reapportionment); McDaniel v. Barresi, 402 U.S. 39 (1971) (school desegregation); Bakke, 438 U.S. 265 (1978) (graduate school admissions policy); Weber, 443 Al7 U.S. 193 (1979) (admission to union training program); Fulli- love v. Klutznick, 448 U.S. 448 (1980) (government con- tracting). The appropriateness of temporary race-conscious employ- ment goals or ratios is a fact sensitive inquiry. The test is whether the technique is a reasonable response to the racial imbalance the decree was designed to erradicate. See Alex- andria, 614 F.2d at 1363, 1366. Generally, there should be some relationship between the magnitude of the imbalance, the strength of the goals, and the reasonableness of the provision. Ratios are particularly appropriate where the racial imbalance is highly disproportionate. A “goal which seeks the same racial proportion among employees as in the labor force will ordinarily be reasonable.” Detroit Police Officers Assoc., 608 F.2d at 696; Alexandria, 614 F.2d at 1366, n.18. Temporary hiring goals of 50% have been approved routine- ly as reasonable. See, c.g., Weber, 443 U.S. 193 (reservation of 50% of all openings in apprenticeship craft training program reasonable ); Vulcan Society, 505 F.Supp. 955 (50% hiring ratio reasonable where minority representation in population is 16% while workforce representation is only 3%); EEOC v. Bartenders International Union, 22 EPD {30,700 (N.D. Cal. 1979) (50% of job referrals from craft union reasonable); Alexandria, 614 F.2d 1358 (50% hiring goal reasonable ); United States v. Jackson, 519 F.2d 1147 (5th Cir. 1975) (50% hiring goal reasonable); Firebird Society of New Haven v. New Haven Board of Fire Commissioners, 66 F.R.D. 457 (D. Conn. 1975) (total freeze followed by 50% hiring reasonable where minority representation in workforce is 4% while minorities are 30% of the population); Bolden v. Pennsylvania State Police, 73 F.R.D. 370, affd. 578 F.2d 912 (3d Cir. 1978) (50% hiring goal reasonable). In Morrow v. Crisler, 491 F.2d 1053 (5th Cir.), cert. denied, 419 U.S. 895 (1974), the Fifth Circuit re- versed an earlier panel decision which had affirmed an affirma- Al8 tive action plan which relied upon the good faith of the defendants where there was gross minority underrepresenta- tion in the employer's workforce. The en banc court or- dered the district court to consider temporary 1 to 1 or 1 to 2 hiring, the creation of hiring pools, or a freeze on non- minority hiring. Temporary promotional ratios are also reasonable. See e.g., Baker, 504 F.Supp. 841 (50% promotion ratio reasonable ) ; Dennison, 658 F.2d at 695 (Consent decree which awarded 50% of all promotions to minorities reasonable); Bolden, 73 F.R.D. at 373-74 (33% promotion ratio reasonable); United States v. Philadelphia, 24 EPD {31,327 (E.D. Penn. 1980) (promotion of 17% of all incumbent female police officers reasonable); Firebird Society, 66 F.R.D. 457 (promotional goal of 33% for the position of lieutenant reasonable ); Jackson 519 F.2d 1147 (“accelerated promotions” of incumbent blacks reasonable). In American Telephone and Telegraph Co., 556 F.2d 167, the consent decree directed the Bell Sys- tem Companies to establish goals and intermediate targets to promote the full utilization of all race, sex and ethnic groups in each of fifteen job classifications. The intermediate targets reflected the representation of such groups in the external labor market in relevant pools for each operating company’s workforce. When any operating con jany was unable to achieve its intermediate target, the decree required it to depart from normal stancards and select basically quali- fied candidates. The final factor a court must consider is all objections to the decree and alternatives to the decree’s provisions pre- sented during the hearing. Miami, 614 F.2d at 1334; American Telephone and Telegraph, 556 F.2d at 178. The preliminarily approved decree is presumptively reasonable. Philadelphia, 24 EPD at 18,046; Miami, 614 F.2d at 1333. one objecting to the decree bears the heavy burden of demon- strating that the decree is unreasonable. Philadelphia, 24 EPD Alg at 18,047; Miami, 614 F.2d at 1334. A decree may be finally approved over the objections of class members and non-minori- ties who are affected by it. See Dennison, 658 F.2d at 696; Holmes v. Continental Can Co., 25 EPD 9 31,490 (N.D. Ala. 1980). If the decree is rejected, the principaled reasons for the rejection must appear on the record. Miami, 614 F.2d at 1333; Philadelphia, 24 EPD at 18,047. A decree should be rejected only after the court informs the parties of its precise concerns and gives them an opportunity to reach a reasonable accommo- dation. Miami, 614 F.2d at 1333. The court should not attempt to impose its perspective on the parties. The court should only determine whether the decree is within the range of reasonableness. Sorie reliance may be placed on the ability of competent counsel to accurate- ly assess the strengths and weaknesses of each litigant’s case. See Cotton, 559 F.2d at 1330; FMC Corp., 528 F.2d at 1173. The decree is a compromise. Neither litigant obtained all that they had hoped to gain initially through litigation. A principal purpose of Title VII is to induce voluntary race- conscious affirmative action. Detroit Police Officers Assoc., 608 F.2d at 690. Courts have placed a high premium on the voluntary settlement of Title VII actions. See, e.g., Alexander v. Gardner-Denver Corp., 415 U.S. 36, 44 (1974); Miami, 614 F.2d at 1331-33. Dennison, 658 F.2d at 696; Village of Arlington Heights, 616 F.2d at 1014-1016. Cotton, 559 F.2d at 1331; United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 846 (5th Cir. 1975), cert. denied, 425 U.S. 944 (1976); Hutchings v. United States Industries, Inc., 428 F.2d 303, 309 (5th Cir. 1970). Consent decrees enhance the possi- bility of compliance with Title VII and other employment discrimination laws. Id. Consent decrees may produce more favorable results than more sweeping judicially imposed orders that might risk opposition and resistance. Jd. Consent decrees also reduce the cost of litigation, engender judicial economy, A20 and vindicate an important societal interest in affirmative ac- tion."* Id. On appeal, the standard of review is abuse of discretion. Dawson v. Pastrick, 600 F.2d 70, 75 (7th Cir. 1979); Cotton, 559 F.2d at 1331, Village of Arlington Heights, 616 F.2d at 1015. Due deference will be given the trial court's greater familiarity with the strategy and the relative strengths of cach ‘itigant’s case. See Alexandria, 614 F.2d at 1362. In the instant case, al! pretrial discovery had been com- pleted. Thus, counsel and the court were in an excellent position to assess the relative strengths of each litigant’s case. The parties agreed to the terms of the 1980 Decree. The court found that there was no evidence of collusion, stating “no parroting” had occurred throughout the pretrial period. The 1980 Decree represents a reasonable compromise of their competing interests. The City relinquished no more control over its personnel decisions than was absolutely necessary to avoid a trial on the merits.’? Plaintiffs did not agree to the decree until it became apparent that they had obtained substantially all they could have obtained, given the risks of litigation. 1? “Settlement agreemenis should. . . be upheld whenever equitable and policy considerations so permit. By such agreements are the ee cen 2 Ge pastes, to eter Be weling Gat turn before overburdened courts, and to citizens taxes support the latter. —t +h, ~~ gy Ay 4-4 i itan ~ _— 5 3 ; a . ' ; i : f ; 1 | i : i : | A21 The adequacy of the 1980 Decree can be assessed by con- sidering the statistical evidence of discrimination in the record. This statistical evidence is sufficient to create a strong prima facie case of racial discrimination. In fact, the trial court thought that the evidence was so compelling that it could take judicial notice of the discriminatory employment prac- tices of the City."? Minorities were excluded from mean- ingful participation in the Memphis Fire Department for decades. The goals embodied in the decree are reasonable. However, the goals are merely an adequate response to the gross underutilization of minorities within the Fire Depart- ment. The promotion and hiring goals embodied within the 1980 Decree supplement the relief provided in the 1974 Decree. The 1974 Decree contemplated the imposition of these goals if the utilization of minorities was not substan- tially increased. This contingency in the 1974 Decree is an additional factor enhancing the reasonableness of the 1980 Decree. Significantly, no class member objected to the terms of the 1980 Decree. The court also considered the interests of non-minorities. The affirmative action provisions of the 1980 Decree do diminish the promotional expectations of non-minorities. A simple reduction in the “expectations” does not, however, necessarily make a consent decree unreasonable. For exam- ple, in Weber, 443 U.S. 193, the expectations of non-minori- ties were adversely affected, yet the affirmative action plan was legal. In the instant case, the harm suffered by in- cumbent non-minority employees because of the promotional goal is de minimus. Many minorities would have been a statutory violation of Title VIL. See Detrow Police Opicers Assoc. y ALT, 686; International Brotherhood of Teamsters v. States, 431 A tt 4- Under some circumstances such ay eights v."Metropolitian Housing Corporation, 420 U A22 promoted even absent the consent decree. In fact, absent discrimination, the minority promotion rate should approx- imate the percentage of minorities in the community." See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 340 n.20 (1977); Detroit Police Officers Assoc., 608 F. 2d at 696-97. Minorities represent 35% of the Memphis Com- munity, therefore, over the long-run the minority promotion rate should exceed the 20% promotion ratio in the 1980 Decree. Viewed in this light, the promotion ratio in the 1980 Decree is a floor and not a ceiling on minority promotions. The consent decree embodies a minority promotion ratio which is less than the 35% minority promotion ratio which presump- itvely would be the norm absent the City’s past employment practices. Non-minorities allege the 1980 Decree’s 20% pro- motion goal unduly interferes with their expectation of pro- motion. It appears, however, that the expectation of non- minorities is based upon a pre-decree minority promotion ratio which pres mptively would have been significantly higher had the City’s employment practices been non-discriminatory. The 1980 Decree eliminated only a portion of the promotional! expectations of non-minorities which presumptively were based on the City’s discriminatory promotional practices. The court also held a hearing to enable the proposed iuter- venors to air their objections to the 1980 Decree. The pro- rosed intervenors suggested that the court restructure the Fire Department, institute a constructive promotion procedure, or create more upper management positions so the promo- tional expectations of non-minorities would not be diminished. The district court rejected these alternatives. The court was correct in summarily rejecting the alternatives suggested by the intervenors. See Philadelphia, 24 EPD at 18,048. The court had no authority to restructure the Memphis Fire De- partment. See National League of Cities v. Usery, 426 US. 14 This court assumes the rate of minority participation in the labor force equals the percentage of minorities in the Memphis community. A23 833 (1976), on remand sub nom., National League of Cities v. Marshall, 429 F.Supp. 703 (D.C. Col. 1977). Finally, the court determined that the decree was reason- able. We agree. The decree was reasonably related to cor- recting the underutilization of minorities in the Memphis Fire Department. The decree did not require the discharge of non-minority employees and only encompassed qualified minorities. Moreover, the decree is temporary and does not constitute an absolute bar to the advancement of non-minori- ties. More importantly, the court has retained jurisdiction to enter such further orders as are necessary to effectuate the purposes of the decree while not unduly trammeling the inter- ests of non-minorities. OPERATION OF A CONSENT DECREE A. A consent decree is essentially a contractual agreement sub- ject to continued judicial policing. The terms of the decree, unlike those of a simple contract, have unique properties. A consent decree has attributes both of a contract and of a judi- cial act. See United States v. Motor Vehicles Manufacturers Association of United States, Inc., 643 F.2d 644, 648 (9th Cir. 1981); United States v. ITT Continental Baking Co., 420 U.S. 223, 236, n.10 (1975). Consent decrees are construed for enforcement purposes as contracts. See ITT Continental Bak- ing Co., 420 U.S. at 238. Brown v. Neeb, 644 F.2d 551 (6th Cir. 1981); Strouse v. J. Kinson Cook, Inc., 634 F.2d 883, 885 (5th Cir. 1981). Aids such as the circumstances sur- rounding the formation of the decree help determine the purpose for which the decree was entered. See Brown v. Neeb, 644 F.2d at 562; United States v. Bechtel Corp., 648 F.2d 660, 665 (9th Cir. 1981), cert. denied, 102 S.Ct. 638 (1981); ITT Continental Baking Co., 420 U.S. at 238. The bind- ing substantive commands of a consent decree are embodied A24 within the decree’s “four corners”. See United States v. Armour & Co., 402 U.S. 673, 682 (1971); Strouse, 634 F.2d at 885. A decree embodies the legal constraints which govern the behavior of the parties during the life of the decree. See ITT Continental Baking Co., 420 U.S. at 236. In interpreting a decree, courts may not depart from its “four corners” unless its language is ambiguous. See Id.; Motor Vehicles Manufac- turers Assoc., 643 F.2d at 648. A decree is always specifically enforceable as written. See ITT Continental Baking Co., 420 U0.S)\at 238; Miami, 614 F.2d at 1333; Strouse, 634 F.2d at 885. The subject matter of a decree in an employment discrimination action, the right to litigate the issue of discrimination, is always unique. Both parties relinquish this valuable right in reliance upon the de- cree. Plaintiff forgoes the right to be made “whole” by proving a violation of Title VII.'5 A defendant, on the other hand, relinquishes the right to rebut the allegations of dis- crimination and avoid the affirmative responsibilities imposed by a judicial finding of discrimination. A party cannot simul- taneously benefit from a decree and ignore its corresponding affirmative obligations. See Strouse, 634 F.2d at 886. The spe- cific performance ordered should ordinarily accomplish that progress which would have occurred but for a party's failure to abide by the terms of the decree. See EEOC v. Local Union No. 38, 25 EPD 931,553 (N.D. Cal. 1981); Bolden, 73 F.R.D. at 370. A trial court has continuing jurisdic- tion to modify a decree should its operation become un- reasonable. See United States v. Chicago, 663 F.2d 1354 (7th Cir. 1981) (en banc); Miami, 614 F.2d at 1333-34. na, Vectation had been cxtebtiched, the remedy would have embodied retrospective well as pr rospective relief. ” see Albmarle Paper Co. v. Moody, 422 t U.S. 405, 418 (1974). A25 Quite apart from the contractual mandate of specific per- formance, the court has an independent duty to ensure that the terms of the decree are effectuated. The reasonableness determination is a judicial act and a final order of the court. This determination places the weight and authority of the court behind the terms of the decree. An approved consent decree is not simply a compact between former litigants, rather it is a court order. Consequently, a court has an affirmative duty to protect the integrity of its decree. This duty arises where the performance of one party threatens to frustrate the purpose of the decree.'* For example, in Local Union No. 38, 25 EPD 131,553, a union was held in contempt for failing to comply with the terms of a consent decree which it had entered. The court increased the number of minorities affected by the decree’s affirmative action plan in the amount which the union had failed to meet the plan’s goals. In EEOC v. Bartenders International Union, Local No. 41, 22 EPD § 30,700 (N.D. Cal. 1979), the court extended the duration of a consent decree and increased the percentage goal of integra- tion where the union fell short of meeting its minority mem- bership goal, the statistical disparity between minority and non-minority in the union workforce continued to exist, and the long-range goal of the decree had not been met. In Bolden, 73 F.R.D. 370, the court modified a consent decree after an unanticipated economic crisis prevented the employer from being able to afford to comply with the terms of a decree which mandated affirmative action. The court increased the minority hiring goal from 33 to 50 percent and the minority promotion ratio from 25 to 33 percent.'” 16 Absent extraordinary circumstances, the court should act only on the motion of the parties. 17 We express no on on whether the goals contained in the instant decree should increased at the conclusion of the unantici- pated economic crisis in Memphis. A26 Cc, The operation of the promotion section of the 1980 Decree does not constitute unconstitutional reverse discrimination. The proposed intervenors suggest that monetary damages, constructive promotions, and front pay are appropriate com- pensation for non-minority employees who allegedly are ad- versely affected by the decree’s operation. The district court rejected this argument as substantively incorrect. We agree. Compensatory relief is generally intended to make a litigant whole for any losses occasioned by wrongdoing. Thus, the proposed intervenors implicitly contend that the operation of the decree constitutes a compensable wrong. We hold that a reasonable consent decree does not constitute a compensable wrong. In fact, a reasonable consent decree does not adverse- ly affect any legally protected interest of a non-minority. Equal Employment Opportunity Commission v. McCall Cor- poration, 633 F.2d 1232 (6th Cir. 1980) is instructive on this point. In McCall, male carloaders alleged that a consent decree which granted retroactive seniority to female employees constituted an act of discrimination. Judge Kennedy, speak- ing for this Court, held: “Acceptance of plaintiffs’ theory that a conciliation agree- ment and consent decree resulting from a Title VII action can itself be an act of discrimination would create major problems. This court is convinced that the consideration of a ciliation agreement which results in a consent decr an act of discrimination against employees not ed by that agreement would create a situation in which each settlement would spark new rounds of litigation, settle- ment of claims would be discouraged, and the courts would continually be faced with stale claims. Conse- quently, we hold that conciliation agreement resulting in consent decrees may not be considered independent acts * A27 of discrimination, as a matter of law, unless there are allegations of bad faith in making the agreement, that is allegations that the agreement was not a bona fide attempt to conciliate a claim but rather an attempt to bestow unequal employment henefits under the guise of remedying discrimination.” Jd. at 1238; Freeze v. Aro, Inc., 503 F.Supp. 1045, 1047 (F.D. Tenn. 1980). Accord, Setser v. Novack Investment Co., 657 F.2d 962, 970 (8th Cir. 1981) (en banc). A consent decree may be attacked only on the ground that its substantive provisions unlawfully infringe the rights of the complainant. See Society Hill Civic Assoc. v. Harris, 632 F.2d 1045, 1059 (3d Cir. 1980). We hold that a reasonable con- sent decree which embodies an affirmative action plan does not affect any legally protected intcrest of non-minorities. See McCall, 633 F.2d at 1238. Therefore, reverse discrim- ination challenges to reasonable consent decrees are imper- missible collateral attacks. See Dennison, 658 F.2d at 695. Prate v. Freedman, 430 F.Supp. 1373 (W.D. N.Y.), affd., 573 F.2d 1294 (2d Cir. 1977), cert. denied, 436 U.S. 922 (1978); O’Burn v. Shapp, 70 F.R.D. 549 (E.D. Pa.), affd., 546 F.2d 417 (3d Cir. 1976), cert. denied, 430 U.S. 968 (1977). See also, Miami, 614 F.2d at 1329 (Consent decree cannot be chal- lenged by a party whose rights are not affected by it). The proposed intervenors have not alleged that the 1980 Decree was the product of collusion. Indeed, this record would not support such an allegation. Moreover, the 1980 Decree is reasonable. Thus, the proposed intervenors’ action is an impermissible collateral attack. See Dennison, 658 F.2d at 695-96. Moreover, awarding compensatory relief to non-minority employees would impose conflicting or inconsistent obligations on the City. This is particularly true of the constructive pro- motion suggestion. Under this alternative, each time the City A28 attempted to promote minorities, it would be required to pro- vide an equivalent amount of compensation to a non-minority employee who allegedly would have been promoted but for the decree. This extra compensation would drastically in- crease the cost of each promotion and the cost of complying with the 1980 Decree. This increased cost would destroy a primary incentive which motivated the City to enter the 1980 Decree. Thus, permitting the proposed intervenors to sue for compensation would be inimical to the policy of encouraging the settlement of Title VII actions. In addition, the compensatory relief sought by the proposed intervenors frustrates the purpose of the decree. The purpose of the decree is to correct the effects of those past employ- ment practices of the City which may have been racially dis- criminatory. The decree provides that minorities are entitled to certain affirmative treatment and consideration in future promotions because of the City’s past employment practices. Evidence contained in this record not only supports this en- titlement, but is sufficient to establish a prima facie case of racial discrimination. The decree is designed to correct past employment practices which illegally benefited non-minorities. The proposed intervenors seek to confer indirectly the benefits of the decree on non-minorities. Therefore, the relief sought by the proposed intervenors is patently inconsistent with the purpose of the decree. Finally, if the consent decree could constitute an actionable wrong, the City would be subject to dual obligations. The failure to enter a consent decree would leave the City poten- tially liable in the Plaintiffs’ employment discrimination action. On the other hand, the proposed intervenors imply that com- pliance with the decree would subject the City to “reverse discrimination” suits seeking comparable relief for non-minor- ities. The proposed intervenors’ position places the City in a “Catch-22” position of incurring liability for employment discrimination without regard to the action taken. The A29 absurdity of placing employers in this position has been noted by several courts. See Telephone Workers Union of New Jersey Local 827 v. New Jersey Bell Telephone, 450 F.Supp. 284, 298 (D. N.J. 1977), aff'd. 584 F.2d 31 (1978); Dennison, 658 F.2d at 695-6; Hunter v. St. Louis-San Francisco Ry. Co., 639 F.2d 424, 425 n.2 (8th Cir. 1981). See also Alexandria, 614 F.2d at 1366. The proposed intervenors contend that this potential double liability is necessary to ensure that an employer bears the full price of its past wrongdoing. Permitting double liability in this situation would clearly maintain the status quo. At a minimum, double liability would so escalate the cost of af- firmative action that an employer's ability to implement an affirmative action plan would be severely crippled. As a result, affirmative action would be impractically expensive. It is unfortunate that the City engaged in the employment practices which precipitated the decree. However, non- minorities benefitted from, practiced, and acquiesced in those practices. The 1980 Decree is a reasonable means to correct the adverse effects which minorities shouldered as a result of those employment practices. The decree does not adversely affect any legally protected interest of non-minorities. The proposed intervenors apparently agree that some action must be taken to ensure that discrimination does not prevent minorities from receiving a fair share of the economic oppor- tunities available. They disagree, however, on the means selected to accomplish this end. The proposed intervenors assert that non-minorities are unhappy with the promotion section of the 1980 Decree. This temporary measure only partially realigns promotional expectations to reflect minority employment levels which would have occurred absent the discrimination. This realignment vindicates a societal inter- est in remedying the effects of racial and more than justifies the displeasure some non-minorities may experience. More- A30 over, the proposed intervenors disregard the fact that minori- ties may also be dissatisfied with the temporary relief afforded by the 1980 Decree. In fact, minorities may be less than total- ly satisfied that the remedial provisions of the decrees are adequate compensation for the many opportunities foreclosed to them for decades. The dissatisfaction which non-minorities and minorities may experience is inherent in the compromise which the 1980 Decree represents. A consent decree reached after negotiation and consultation is the preferred means of balancing the conflicting societal and individual interests inherent in any employment discrimination action. The only alternative to a consent decree is a costly and lengthy trial which would only confront the court with the difficult ques- tion of how much affirmative action must be imposed to correct the effects of past employment discrimination. Il. THE PRELIMINARY INJUNCTION On May 4, 1981, the City announced that an unanticipated economic crisis required the layoff of certain personnel in nonessential services. The proposed layoffs were unprece- dented in the City’s history. The affirmative relief accom- plished under the decrees would be severely eroded by the proposed layoff policy. Subsequently, the court granted an injunction preventing the City from applying the layoff policy in a manner which would reduce the percentage of minority employees in each job classification below that which existed before the layoffs were announced. The City and the Union brought this appeal. We must weigh whether the plaintiffs have shown a strong possibility of success on the merits, whether the plaintiff or defendant would suffer irreparable harm and whether the public interest warrants the injunction. See, e.g., Mason County Medical Assoc. v. Knebel, 563 F.2d 256, 261 (6th Cir. 1977). The standard of appellate review is A31l whether the district court abused its discretion in granting the preliminary injunction. United States v. School District of Ferndale, 577 F.2d 1339, 1360 (6th Cir. 1978), on remand, 460 F.Supp. 352, vacated, 616 F.2d 895 (6th Cir. 1980), on remand, 499 F.Supp. 367 (E.D. Mich. 1980). Judge McRae did not abuse his discretion in granting the preliminary injunction. First, the statistics denoting the racial composition, hiring and promotion practices of the Fire De- partment adequately indicate the probability of plaintiffs success on the merits.'"* Moreover, the entry of the 1980 Decree constituted a “determination of probability of success on the merits.” Culbreath v. Dukakis, 630 F.2d 15, 23 (lst Cir. 1980). Second, the proposed layoffs would irreparably harm minorities by preventing them from acquiring the ex- perience necessary for supervisory positions. Finally, the in- junction serves the public interest by not allowing unexpected events to eradicate the progress made pursuant to an affirma- tive action plan. Brown, supra. Racial diversity in the supervisory ranks of municipal government serving an urban multi-racial city is, as Judge Lively noted in Detroit Police Officers Assoc., desirable and in the public interest. See Talbert v. Richmond, 648 F.2d 925, 931 (4th Cir. 1981). IV. MODIFICATION OF A CONSENT Dk SREE There are three grounds upon which a consent decree may later be modified. First, a decree may be modified in accord- ance with basic contract principles. Brown, 644 F.2d at 559-560. Moreover, Rule 60(b) provides relief from a consent decree upon a showing that the decree is void or is no longer equit- able. Fed. R. Civ. P. 60(b)(4)(5). See EEOC v. Safeway Stores, Inc., 611 F.2d 795, 799 (10th Cir. 1979), cert. denied sub nom, Courtwright v. EEOC, 446 U.S. 952 (1980); Brown, 18 See Footnote 5. A32 644 F.2d at 560 n.17; Philadelphia Welfare Rights Org'n. v. Shapp, 692 F.2d 1114, 1120-21 (3d Cir. 1979), cert. denied sub nom Thornburgh v. Philadelphia Welfare Rights Org'n., 444 U.S. 1026 (1980). A trial court's ruling on a Rule 60(b) motion will not be disturbed absent an abuse of discretion. See Daw- son v. Pastrick, 600 F.2d 70, 75 (7th Cir. 1979); Cotton v. Hin- ton, 559 F.2d 1326, 1331 (5th Cir. 1977). Finally, a court of equity has continuing jurisdiction to modify a decree upon changed circumstances. United States v. Swift & Co., 286 U.S. 106, 114-15 (1932); Brown, supra. Modification of a consent decree, of course, requires a full hearing and findings of fact. United States v. Atlantic Refining Co., 360 U.S. 19, 23 (1959); Hughes v. United States, 342 U.S. 353, 357-58 (1952); Brown, 644 F.2d at 560. A. The 1980 Decree imposes a duty on the City to engage in certain affirmative action in its hiring and promotion decisions. The decree does not contain a provision which would prevent the operation of the decree if one party experiences an eco- nomic hardship. In April of 1981. the City expericnced an unanticipated economic crisis. The City unilaterally de- termined that a reduction in the number of City workers could lessen the severity of the crisis. Alternative methods for mecting the crisis were available. The City had ulti- mate responsibility for determining: 1) that city-wide layoffs were the alternative which would most effectively relieve the crisis; and 2) which job classifications would be subject to the layoff policy. It is uncontroverted that the application of the layoff policy to the job classifications selected by the City would have virtually destroyed the progress belatedly achieved through affirmative action. The City contracted in the 1974 and 1980 Decrees to accomplish precisely that which the layoffs would destroy: a substantial increase in the number of minorities in supervisory positions. A33 The district court, sitting as a court of equity, had the erjuiiable power to order specific performance of the terms of the 1974 and 1980 decrees. As noted, the 1980 Decree is based upon the mutual assent of the parties and a judicial determination of reasonableness. This Decree mandates an increase in the level of minority employment and promotion within the First Department. Minorities hired and/or pro- moted pursuant to the 1980 Decree were parties to and the intended beneficiaries of the 1980 Decree. Therefore, the City’s announcement to these employees was in effect notice of the City’s intended anticipatory repudiation of the 1974 and 1980 Decrees. The announcement notified Plaintiffs that 1) relief previously granted pursuant to the Decrees would be diminished; and 2) prospective relief under the Decrees would not be forthcoming. In response to the City’s announcement, the Plaintiffs sought to enjoin the proposed layoffs. However, it is apparent from Judge McRae’s treatment of this case that he properly recog- nized that Plaintiffs did not seck to modify contractually the existing consent decrees. Instead, Plaintiffs merely sought to compel compliance with the terms and goals of the Decrees. Under the terms of the Decrees, the City was obligated to employ reasonable, good faith efforts to fulfill the goal of increasing minority representation in each job classification in the fire department to levcls approximating the minority population represented in the civilian labor force in Shelby County. The City’s failure to fulfill its obligations under the Decrees would have subjecied it to liability for violating both its con- tractual obligations and a judicial order. The City contends that the sole reason for the layoff proposal was economic hard- ship. This argument is meritless. It is hornbook contract law that economic hardship does not excuse performance under a contract. See ]. Calamari and J. Perillo, Contracts, 491 (2d ed.). Neal-Cooper Crain Co. v. Texas Gulf Sulphur Co., 508 F.2d 283 (7th Cir. 1974). Consequently, the decrees remained A34 specifically enforceable. See ITT Continental Baking Co., 420 U.S. at 236. Plaintiffs were presumptively entitled to full per- formance of the terms of the Decrees. Therefore, the court's modification of the decree is simply an exercise of its equity jurisdiction to temporarily relieve the hardship on the City which strict compliance with the decrees would have caused. The modification allows the City to proceed with its layoff policy subject to reasonable deference to its obligations under the decrees. In our view, the court's decision to modify the Decrees is a reasonable accommodation of competing interests and obligations. The modification partially alleviates the City’s misfortune, while protecting the integrity of the court's initial orders. The court gave due deference to the City in structuring its internal affairs. See National League of Cities v. Usery, supra.. Comity and an appreciation of federalism caused the court to exercise its equitable powers to apportion the burden of meeting the City’s fiscal crisis on minorities and non-minorities alike. The court retains authority to mandate full compliance with the decrees should circumstances change. The relicf granted under Fed. R. Civ. P. 60(b) is extra- ordinary and may be granted only upon a showing of excep- tional circumstances. Mayberry v. Maroney, 558 F.2d 1159, 1163 (3d Cir. 1977); Philadelphia Welfare Rights Org'n., 602 F.2d at 1119; Brown, 644 F.2d at 560, n.17. A change in the facts upon which the consent decree is based usually consti- tutes an exceptional circumstance. See King-Seeley Thermos Co. v. Aladdin Industries, Inc., 418 F.2d 31, 35 (2d Cir. 1969), on remand, 320 F.Supp. 1156 (D. Conn. 1970). See also Safe- way Stores, 611 F.2d at 800. A consent decree may also be modified “where a better appreciation of the facts in the light of expericnce indicates that the decree is not properly adapted to accomplishing its purposes.” Chance v. Board of Examiners, 561 F.2d 1079, 1086 (2d Cir. 1977), quoting King-Seeley A35 Thermos Co., 418 F.2d at 35. The availability of relief under Rule 60(b) is not squarcly presented on this appeal.'’* We, therefore, express no opinion on whether the 1980 Decree could have been modified pursuant to Rule 60 Cc. A trial court has broad discretion in administering consent decrees. Sec, e.g., Brown, supra; Safeway Stores, 611 F.2d at 799; American Telephone and Telegraph Co., 556 F.2d at 178. While acting within its equity jurisdiction, a trial court has continuing jurisdiction to modify a consent de- cree upon a showing that “changed circumstances” have transformed the original decree into an instrument of wrong. See, e.g., United States v. Swift & Co., 286 U.S. 106, 114-115 19 We note that this court has previously endorsed the analysis of Rule 60(b) in Philadelphia Welfare Rights Org’n., 802 F.2d at 1120-21: Any injunction imposing mandatory affirmative duties for the future involves elements of prediction. Whether the prediction as to achievability is made as a result of litigation or, as here, in a negotiated settlement, it will always speculative to some degree. This is particularly the case when the defendants’ ability to achieve compliance depends upon the receptivity of class members or other third parties not formally before the court. See Special Project, the Remedial Process in Institu- tional Reform Litigation, 78 Col.L.Rev. 784, 818-19 (1978). An decree imposing more than minimum 0 tive obligation. That wariness would, we think, tend to settlement of injunction by consent dec. a high minimum affirmative obligations, perhaps realistically achievable > tar of - ne - unreasonable but is imposed by court order on the assumption that it is realis- A36 (1932); Hwghes v. United States, 342 U.S. 353 (1952); Brown supra. The court's power to modify the terms of a decree should not be exercised lightly. Swift & Co., supra. Modifica- tion is proper where it has been demonstrated in an evidentiary hearing that new and unforeseen conditions have created a hardship. See Brown, 644 F.2d at 559. Accord Chrysler Corp. v. United States, 316 U.S. 556, 562 (1942) ( The test is “whether the change served to effectuate or thwart the basic purpose of the original consent decree.”). See United States v. Chicago, 663 F.2d 1354, 1360 (7th Cir. 1981) (en banc) (the standard for modification is not “based solely on hardship.” It in- corporates consideration of whether the purpose of the decree has been achieved). See also Sarabia v. Toledo Police Patrol- man’s Ass’n., 601 F.2d 914, 916 (6th Cir. 1979). See generally Requests By The Government For Modification of Consent Decrees, 75 Yale L. Rev. 657 (1966); Flexibility and Finality in Antitrust Consent Decrees, 80 Harv. L. Rev. 1303 (1967). New and unforeseen conditions exist where there has been a fundamental change in the essential facts upon which the decree is based. See Safeway Stores, 611 F.2d at 800 (new. unforeseeable circumstances not present where “there is no evidence ir “cating that the facts — e.g, the nature and makeup of Safeway employees and operations — against which the decree and the interpreting order were framed have sub- stantially changed.” ). It is well settled that a court can modify a consent decree where layoffs caused by an unanticipated economic crisis threatens to frustrate the purpose of the decree. See Brown, 644 F.2d 551; Bolden, 73 F.R.D. at 371-72; Castro v. Beecher, 522 F.Supp. 873 (D. Mass. 1981). Thus, even if Judge Mc- Rae’s decision is not construed as compelling compliance with the terms of the Decrees, there exists an independent justifica- tion for the modification. In Brown, this court held that a trial court could exercise its inherent authority to modify a consent decree where an economic crisis unexpectedly caused the City of Toledo to lay A37 off firemen The layoffs were a new and unforeseen changed circumstances which threatened to frustrate the purpose of the Brown decree by destroying its mandated affirmative action. The nature and racial composition of the Toledo Fire Depart- ment would also have been radically altered by the layoffs. The factual situation which Judge McRae faced was vir- tually identical to that which confronted Judge Young in Brown. Judge McRae specifically found that: 1) the pro- posed layoffs werc an unexpected circumstance not antici pated by the parties when they entcred the decree; 2) the purpose of the 1980 Decree was to correct the past hiring and promotion practices of the City through affirmative action; and 3) the proposed layoffs would have a devastating and retrogressive effect on the affirmative action mandated in the 1974 and 1980 Decrees. These findings have not been chal- lenged on appeal. The findings are not clearly erroneous. The proposed layoffs would impose an undue hardship on Plaintiffs. The Plaintiffs have relied on the affirmative action provisions of the 1980 Decree. Thus, they have foregone their right to litigate the City’s past employment practices and possibly obtain greater relief. The proposed layoffs would wrench the belated relief provided by the 1980 Decree from the Plaintiffs. The City unilaterally selected the job classifica- tions in the Fire Department which would be affected by the proposed layoffs. The job classifications selected were those where minorities had recently made the most gains under the affirmative action provisions of the 1974 and 1980 Decrees. Judge McRae was correct in not allowing the City to eradicate the belated affirmative action it had contracted to accomplish in the 1974 and 1980 Decrees. Judge McRae did not issue a blanket order enjoining the layof of all minority workers. Instead, the court merely prevented the City from reducing the percentage of minorities in each job classification. Judge McRae did not abuse his discretion in modifying the consent decree and enjoining the City from reducing the percentage of blacks in certain job categories within the City Fire De- partment. A38 V. TITE SENIORITY SYSTEM The city and the Union both assert that the trial court abused its discretion in modifying the 1980 Decree. Allegedly, the modification impermissibly awarded “constructive sen- iority” to minorities in violation of Franks v. Bowman Transp. Co., 424 U.S. 747 (1976) and International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), on remand sub nom., EFOC vy. T.1.M.E. — D.C. Freight, Inc., 659 F.2d 690 (5th Cir. 1981). In Franks, the Supreme Court held that retroactive seniority may be granted to individuals by a court only upon a showing of post-Act discrimination against the particular individual. Teamsters held that § 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), immunizes “bona fide” seniority systems which perpetuate the effects of discrimina- tion which occurred prior to the effective date of the act. Assuming without deciding the Firefighters Union is recog- nized as such under Tennessee law,?® the City’s and the Union's reliance on Teamster’s and Franks is misplaced. A court does not abuse its discretion in modifying or ap- proving a consent decree which conflicts with the provisions of a collective bargaining agreement.?' At least three theories have been advanced which indicate that a consent decree can alter existing seniority provisions over the objection of an 20 Plaintiffs contend that Teamsters is inapposite because the col- lective bargaining agrecment between the City and the firemen is void and unenforceable under Tennessee law. See Keeble v. City o Alcoa, 204 Tenn. 286, 319 S'W.2d 249 (1958). Consequently, the tria court's modification of the layoff qyeseture did not violate a valid ove bargaining agreement. e need not, and do not decide s issue. Plaintiff has also attempted to —_ -— Teamsters by raisi the issue of whether Firefighters Local Union 1784 union fo after the effective date of Title VII, can be bona {fu'c. This issue is before the Supreme Court. Sec Patterson v. American Tobacco Co., 634 F.2d 744. (4th Cir. 1980), cert. granted, 49 U.S.L.W. 3931 (June 15, 1981). We, therefore, do not decide this issue. 21 Circuit Judge Brown and District J Wiseman took a con- trary view in Brown, supra. It also appears that Circuit Judge Martin also disagrees with my view. I have taken this unity to full explain my position and the substantial case au in support of i A39 adversely affected union. Each of the theories and the circuit courts which espouse them are described below. A. The settlement theory allows a consent decree to alter ex- isting seniority provisions. The settlement theory is epito- mized by Airline Stewards and Stewardesses Association, supra. There the plaintiffs, a class of former female flight attendants, alleged that the defendant violated Title VII. After the plaintiffs were granted summary judgment, the parties reached a settlement during the appellate briefing process. That settlement provided inter alia that the plain- tiffs would receive full retroactive “occupational seniority” upon reinstatement. The exclusive bargaining agent for American Airlines attendants intervened and objected to this provision of the settlement. The trial court, however, ap- proved the settlement. On appeal, the Seventh Circuit rejected the argument that Teamsters required each plaintiff to prove that she would have continued in her employment but for the defendant's wrongful termination. The court held that: “We believe that the issues raised by the intervenor should not be decided on the basis of Title VII law, but rather must be decided on the basis of legal principles regulating judicial review of settlement of agreements. It is a well-settled principle that the law generally favors the encouragement of settlements. (citation omit- ted) That general rule has been recognized as applicable to settlements in Title VII cases. Patterson v. N & Mail Deliverers Union of N.Y. & Vicinity, 514 F.2d 767, 771 (2d Cir. 1975). In fact, one court has concluded that it is “the clearly expressed intent of that Act to encourage settlements.” Flinn v. FMC Corp., 528 F.2d 1169, 1174 (4th Cir. 1975). In addition, it is generally A40 recognized that settlements are entered into because of “the very uncertainties of outcome in litigation, as well as the avoidance of wasteful litigation and expense . . .” Florida Trailer & Equipment Co. v. Deal, 284 F.2d 567, 571 (5th Cir. 1960). Based on these considerations, this court has held that a district court in reviewing a settle- ment agreement “should not attempt to decide the merits of the controversy . . . [because] [a]ny virtue which may reside in a compromise is based upon doing away with the effect of such a decision.” Patterson v. Stovall, 528 F.2d 108, 114 (7th Cir. 1976). Applying these general principles to this case, we be- lieve the district court correctly declined to decide the merits of each of the plaintiffs’ claims. Intervenors essentially ask this court to require in excess of 100 mini-trials on issues dealing with the adequacy of each plaintiff's complaint and the availability of defenses. It seems to us beyond serious dispute that no reasonable parties are going to settle any case if an intervenor can force them to litigate separately the merits of each claim. The rule urged by the intervenor would most seriously discouraze efforts to settle Title VII cases, and we refuse to sanction such a result. Id. at 963-64. In Safeway Stores, the question presented was whether to modify a consent decree. Although the Tenth Circuit held the decree could not be modified, the court did en- dorse the rationale underlying the Seventh Circuit’s decision in Airline Stewards and Stewardesses, supra. In dicta the court stated: “Teamsters prohibits abrogation of a seniority system only if that system is bona fide. Because this case was never litigated, there has been no determination that Safeway’s seniority system is bona fide. Intervenors would have us assume at this point that the system was bona fide, or at the least, remand the case for a hearing _and determination. This we decline to do. The policy A4l of voluntary settlement is so important to the enforce- ment of Title VII would be seriously undermined if the approving court were required to establish the facts underlying the parties’ positions before approving a con- sent decree. The power to compromise exists partially because of the uncertainties and expense typical of ad- versary hearing and judicia! determinations of fact. West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079, 1085-86 (2d Cir.), cert. denied, 404 U.S. 871, 92 S.Ct. 81, 30 L.Ed. 2d 115 (1971). We concur with the district court, “A Consent Decree would be worthless if it could be attacked on the ground that had the Court made a particular determination, such relief would then not be statutorily available.” Id. at 801. We adopt the position of the Seventh Circuit in American Airline Stewards and Stewardesses and the Tenth Circuit in Safeway Stores. A strong policy favoring voluntary settle- ments is embodied within Title VII. E.g., Alexander v. Gard- ner-Denver Co., 415 U.S. 36, 44 (1974), on remand, 8 FEP 1153, aff'd., 519 F.2d 503 (10th Cir. 1975), cert. denied, 423 U.S. 1058 (1976). Airline Stewards and Stewardesses, 573 F.2d at 963; United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826 (5th Cir. 1976), cert. denied sub nom National Organization for Women, Inc. v. United States, 425 U.S. 944 (1976). This policy would be seriously undermined if the facts underlying each parties’ positions were required to be established. Accordingly, the trial court’s determination that the seniority provisions were non-bona fide is vacated. The modification of the consent decree was not error, even though the Union's seniority system may have been affected. My opinion in Brown endorsed a second basis for holding that a consent decree can modify an existing seniority system. The theory's premise is that a consent decree, the preferred A42 means of resolving an employment discrimination suit, docs not decrease the power of a court to order relief which impli- cates the policies of Title VII and 42 U.S.C. §§ 1981 and 1983. This theory has been approved by the Third Circuit in an earlier decision, EEOC v. American Telephone and Telegraph Co., 419 F.Supp. at 1038-1040, aff'd., 556 F.2d 167 (3d Cir. 1977). In American Telephone and Telegraph, Judge Higginbotham reasoned as follows. First, he noted that had plaintiffs allegation been established, the court would clearly have had the power to modify the existing seniority system to require affirmative action in promotions and transfers. He also noted that Congress had selected cooperation and voluntary compliance as the “preferred means” of achieving the equal employment opportunity poli- cies of Title VII. Alexander, supra at 44. Finally, he con- cluded: Since . . . [the consent decree} is the product of cooper- ation and voluntary (though possibly grudging) compli- ance, it is a particularly striking example of the suc use of the means preferred by Congress for the achieve- ment of Title VII's goals. In my judgment, then, it would frustrate the purposes of Title VII to treat the absence of evidence about AT&T's discrimination in transfer and promotion policies, and AT&T's denial of liability for such discrimination, as insuperable obstacles to the ordering of affirmative action in transfers and pro- motions. I decline to do so. For the remainder of this opinion, therefore, I shall treat the allegations of the complaint with respect to transfer and promotion as if they had in fact been proved at trial. To approach them in any other way would make a mockery of the “pre- ferred means” chosen by Congress to effectuate the goals of Title VII. My reasoning in Brown parallels that of Judge Higgin- botham in American Telephone and Telesraph, supra. In Brown, the Supremacy Clause enabled the trial court to over- A43 ride the conflicting provisions of a seniority system and Ohio law because the case had been brought pursuant to 42 U.S.C. §§ 1981 and 1983, as well as Title VII. In the instant case, the Stotts complaint alleged violations of 42 U.S.C. §§ 1981 and 1983 in addition to Title VII. If a violation of 42 U.S.C. § 1983 had been established, the court would have had the authority to invoke the Supremacy Clause to override the Union's seniority provisions and state law. See, e.g., Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15 (1971); Brown, supra. It would be incongruous to hold that the use of the preferred means of resolving an employment discrimination action decreases the power of a court to order relief which vindicates the policies embodied within Title VII and 42 U.S.C. §§ 1981 and 1983. We, therefore, refuse to do so. The trial court had authority to override the Firefighter's Union seniority provisions to effectuate the purpose of the 1980 Decree. C. The third basis for approving a consent decree which con- flicts with the provisions of a collective bargaining agreement is represented in Sisco v. J. S. Alberici Construction Co., Inc., 655 F.2d 146 (8th Cir. 1981). In Sisco, the Eighth Circuit held that an employer can temporarily override the provisions of a collective bargaining agreement pursuant to a valid affirmative action plan. The employer, Alberici, unilaterally adopted an affirmative action plan to comply with the federal contract regulations. The plan established a 10 percent goal for the number of minority hours of employment on each of the Alberici’s projects. Clyde Sisco, a white male, was employed as an ironworker on the Post Office project. He also held the positiun of union steward. During the course of work on the project, Alberici determined that it did not need four ironworkers. However, to maintain compliance with the goals set in federal Ad4 regulations, a cutback in its force required the maintenance of at least onc minority ironworker on the site. Cons: quently, Sisco and another white ironworker were laid off, while the only black ironworker and the crew foreman, a white male, were retained. Sisco protested this action and informed Al- berici that under the Ironworkers Collective Bargaining Agrec- ment, Sisco, as union steward, was entitled to special treat- ment. Under the Agreement, the steward is supposed to be “the last man laid off.” Subsequently, he brought suit, alleg- ing his removal from the Post Office Project violated Title VII and 42 U.S.C. § 198). The court held: “It [Alberici] was under pressure from government offi- cials to improve its percentage of minority hours worked. There was a history of exclusion of black workers from the ironworkcrs’ trade in St. Louis. Alberici had decided, for reasons wholly unrelated to race or to Sisco personally, to reduce its force of ironworkers at the Post Office from four to two. In order to accomplish that goal without further worsening its ratio of minority hours, the black ironworker (who had been on the site longer than Sisco and whose qualifications are not questioned) had to be retained. Of the two employees left, one was white. The St. Louis Plan [the affirmative action plan] was tem- porary, in the sense that its goals were expressed in terms of percentages of hours worked; once the per- centages were met, no further action by the company was required. Sisco was not replaced by a new black worker. A qualified black employee with more seniority on the job site was simply retained in preference to Sisco and another white man. For these reasons, we hold that Alberici’s initial decision to remove Sisco from the Post Office job was not unlawful.” Id. at 149. See Savannah Printing Specialties & Paper Products Local 6u4 v. Union Camp Corp., 350 F.Supp. 632 (§.D. Ga. 1972). A45 The Eighth Circuit's analysis in Sisco indicates that the City would have, at Plaintiff's urging, modified the provisions of the collective bargaining agreement to accomplish the goals set out in the 1980 Decree without violating Title VII or 42 U.S.C. § 1981. The City specifically empowered the trial court to enter “such further order as may be necessary or appropriate to effectuate the purpose of this decree.” Con- sequently, the trial court could use this derivative authority to temporarily override the provisions of the Union's collec- tive bargaining agreement. VI. CONCLUSION Judge McRae has at all times during this very difficult and complex case displayed sound reasoning, restraint and wisdom in his actions. The balance he struck between the interests of the City, the Union, incumbent non-minority employees, and minorities who have relied upon the consent decree is appropriate and consistent with the law. Judge McRae did not abuse his discretion in approving the 1980 Decree or in modifying the decree to enjoin the City from destroying the belated affirmative action accomplished under the decrees. Accordingly, the judgment of the district court is affirmed. A46 Boyce F. Maxtin, Jr., Circuit Judge, concurring in part, dissenting in part. I write separately because 1 can concur only in the result. I agree that the District Court properly enjoined the City of Memphis from laying off black firefighters on the basis of city-wide seniority. In my view, the plaintiffs satisfied the traditional prerequisites for injunctive relief, and the District Judge did not abuse his discretion in granting plaintiffs the temporary relief which they sought. I also agree that the District Court erroneously determined that the senior- ity system was not bona fide. However, I can agree with only one of the theories Judge Keith espouses to justify modification of the consent decree by injunction. Judge Keith is correct in stating that a consent decree is essentially a contract between adversaries to end litigation and settle differences. As such, a decree is subject to interpretation and construction as a contract. Unfortunate- ly, the parties did not foresee the financial crisis which re- quired massive layoffs. The decree therefore contains no pro- vision that could be construed either to prohibit or permit layoffs according to city-wide seniority. However, the decree contains the following provision where- by the parties agreed that the District Court should retain jurisdiction over the parties: “for such further orders as may be necessary or appropriate to effectuate the purposes of this decree.” In essence, this provision is boiler-plate language which recognizes that the District Court has the power to modify the consent decree in light of changed circumstances, in order to preserve the level of benefits procured through the decree. I disagree with Judge Keith to the extent he con- cludes that this clause gives the District Court “derivative authority” to modify the provisions of the Union's collective bargaining agreement. However, to the limited extent that Judge Keith concludes that the District Court did not abuse its discretion in protecting the status quo in the Fire Depart- ment by injunction, I concur. A47 The District Court's decision to enjoin imminent layoffs was made after an evidentiary hearing and was based on its assessment that the decree would be vitiated by the impend- ing layoffs. I believe that a District Court should be cautious in modifying a consent decree, especially if such action would cause the parties to assume obligations for which they have not contracted. Judge Brown, speaking for himself and Wise- man, the majority of the panel, articulated this concern in his special concurrence in Brown v. Neeb, 644 F.2d 551, 565 (6th Cir. 1981): Because the City is being required to pursue a course of action that it has not, by the consent decree, con- tracted 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 modi- fying the consent decree to overrule the decision of the elected City officials and their appointees concerning the proper way to mcect this financial crisis. These considerations apply with equal force to the circum- stances of the present case; and based upon the facts found by the District Court, | cannot say that its decision to enjoin impending layoffs was an abuse of discretion. I disagree with Judge Keith's statement that: “a consent decree can alter existing scniority provisions over the objection of an adversely affected union.” As support for this statement, Judge Keith reasons that this Court held in Brown that “the Suprem:.cy Clause enabled the trial court to override the con- flicting provisions of a seniority system and Ohio law because that case had been brought pursuant to 42 U.S.C. §§ 1981 and 1983 as well as Title VII.” I cannot agree that his statement accurately reflects this Court’s holding in Brown. Although Judge Keith reached this conclusion in his opinion in that case, Judge Brown expressly rejected it in his special concurrence, in which District Judge Wiseman joined. As I read Brown, its holding on the issue of a union's rights is expressed in A48 Judge Brown's opinion. Judge Brown, writing for himself and for District Judge Wiseman, the majority of the panel, stated that: In my view, even though this action was brought pur- suant 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 te 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. Al- though it intervened at the time plaintiffs moved for the instant preliminary injunction, there was, again, no de- termination 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 seniori- ty. The district court did not so authorize layoffs. The district court could abrogate the rights of the Union to layoffs hy 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 plainti{s’ constitu- tiona! rights to hold such contract and statutory rights of the Union to be unenforceable. 644 F.2d at 566 Applying Judge Brown's reasoning here, I must conclude that the District Court has no authority to abrogate the Union's contractual and statutory rights. The Union was not a party to this suit when the consent decree was entered. Judge McRae simply enjoined the City from making its pro- posed layoffs in the Fire Department. Judge McRae’s actions do not affect the collectively bargained rights of the Union. I therefore dissent from Judge Keith’s opinion, to the extent A49 that it holds otherwise. The law in this Circuit does not sanction modification of a consent decree to alter or destroy the rights of a non-party union concerning layoffs by seniority, unless a hearing is held in which the union is a participating party, and a court determines that: “(1) plaintiffs’ constitu- tional rights had been infringed; and (2) it was necessary, to vindicate plaintiffs’ constitutional rights, to hold such con- tract and statutory rights of the Union to be unenforceable.” Brown v. Neeb, 644 F.2d at 567 (Brown, J. concurring in result only). (emphasis added). Furthermore, the consent decree does not concede liability, and it cannot be construed as such an admission. The Dis- trict Court has never held an evidentiary hearing nor has it determined that the City is liable for past acts of discrimina- tion. To the extent that Judge McRae and Judge Keith assume that liability has, in fact, been established, I must also disagree. I dissent from those sections of Judge Keith’s opinion that purport to discuss the merits of the proposed intervenors’ sug- gestions for alternative relief. As I read the record, Judge McRae never held a hearing on the merits of constructive promotion, monetary damages, or any of the other alternatives advanced by the unsuccessful intervenors in their motion to intervene. In fact, Judge McRae did not discharge his duty to consider fully the interests of incumbent employees before approving the settlement decree. See Airline Stewards v. American Airlines, 573 F.2d 960 (7th Cir. 1978). The sole purpose of the May 16, 1980 hearing was to determine the validity and timeliness of the intervention request itself. The only consideration Judge McRae gave to the merits of the proposals he expressed in these words: “And I would not be a party to any of this constructive promotion bit. That's not much good for anybody. And it is certainly not good — well, that’s no way to run a fire department.” Today this Court has upheld the District Court's decision that the intervention motion was untimely. D. L. Orders, A50 et al. v. Carl W. Stotts, et al., No. 80-1469. 1 have dissented from that conclusion, and I reaffirm my judgment on the intervention issue here. Judge Keith states for the majority that the proposed intervenors’ attempt to intervene to chal- lenge the consent decree is “an impermissible collateral at- tack.” Judge Keith misapprehends the very purpose of inter- vention, which is to afford to unrepresented persons who have an interest in litigation a legitimate avenue for asserting and protecting that interest. Intervention confers standing on a party to participate in litigation and thus affords the inter- vening party the very means by which to avoid estoppel. I also disagree with Judge Keith's statement that compensatory relief for incumbents would impose conflicting obligations on the Department. In my view, it would merely make compli- ance more expensive. This Court has not been asked to review the merits of a judicial determination on the proposed intervenors’ argu- ments. The proposed intervenors are not formal parties to this litigation, nor to any of the prior proceedings. Because Judge McRae never held a hearing on the merits, no issue has either been raised or preserved for appellate review beyond the timeliness of the motion to intervene itself. Having de- cided that the motion was untimely, Judge McRae had no jurisdiction to entertain the merits of the proposed inter- venors arguments. Neither does this Court. Nor has this Court been presented with the contention that the decree constitutes “reverse discrimination.” I dissent from Judge Keith's sua sponte conclusion that the decree is “constitu- tional.” I am disturbed by Judge Keith’s lengthy discussion of the consent decree’s validity and reasonableness vis a vis the proposed intervenors. In my view, this discussion is purely advisory, inappropriate in light of the conclusions | reach in my dissent in D. L. Orders, et al. v. Carl W. Stotts, et al., No. 80-146, and most importantly, far beyond the scope of our appellate jurisdiction. I offer one final observation on the majority opinion. The A5l majority asserts that the proposed intervenors improperly asked the District Court to “restructure” the Memphis Fire Department. Judge Keith states that Judge McRae correctly denied this request, because he lacked such authority under National League of Cities v. Usery, 426 U.S. 833 (1976). I find the majority's statement and citation ironic, given the fact that this Court today affirms the modification of the consent decree to prevent the City and the Department from following their standard seniority system in conducting layoffs. The irony of the majority's statement is particularly striking, read in light of the majority’s conclusion that the Department should not have determined unilaterally to reduce the number of workers. According to the majority, “[4jlternative methods for meeting the crisis were available”, and, presumably, should have followed. A52 APPENDIX IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION UNrrep STATES OF AMERICA, Plaintiff, v. Civu. ACTION Crry or Mempuis, a municipal cor- No. C-74-286 poration, et al, Defendants. CONSENT DECREE (Filed November 27, 1974) This action was brought by the Attorney General against the City of Memphis to enforce the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., as amended by the Equal Employment Opportunity Act of 1972 (Pub. L. 92-261, March 24, 1972); the State and Local Fiscal Assistance Act of 1972, 31 U.S.C. 1221, et seq., the Fourteenth Amendment to the Constitution of the United States and 42 U.S.C. § 1981. The Complaint sets forth certain allegations of the United States of America that the City of Memphis has engaged in a pattern or practice of discrimination based on race and sex in hiring and promotion within the City divisions, including the Memphis Light, Gas & Water Division. This Consent Decree resolves all issues raised by the Complaint with the City other than the employment practices of the Light, Gas & Water Division and the terms of this Decree A53 do not apply to that Division. All issues raised by the Complaint regarding employment practices at the Li [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0549%3A01. Public record. Not legal advice.