# Petition — MEMPHIS FIRE DEPARTMENT v. STOTTS (Nos. 82-229, 82-206) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0572%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 ## Text No. 82-229 —_—_—— In the Supreme Court of the Unit October Term, 1982 MEMPHIS FIRE DEPARTMENT, ROBERT W. WALKER, CITY OF MEMPHIS AND JOSEPH SABATINI, Petitioners, VS. CARL W. STOTTS, Individually And On Behalf Of All Others Similarly Situated, AND FRED L. JONES, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Currrorp D. Pierce, JR. (Counsel of Record) City Attorney Louts P. Barrr III Assistant City Attorney Office of the City Attorney 125 N. Main Memphis, Tennessee 38103 Telephone: (901) 528-2614 Attorneys for Petitioners, Memphis Fire Department, Robert W. Walker, City of Memphis and Joseph Sabatini EL. “ewpewsane, Ive., 096 Cherry Street, Kansse City, Mo. 64106, (816) 421 -s030 QUESTION PRESENTED Did the court have the authority to modify a consent decree between a municipal employer and a ciass of black employees by enjoining the application of a tayoff policy that is based upon a bona fide seniority system and by requiring layoffs to be based upon racial considerations, where the consent decree is silent with respect to the method to be used for layoffs and where there has not been any judicial finding of racial discrimination? LIST OF PARTIES In addition to the parties named in the caption, the Firefighters Local Union No. 1784 was an intervenor- appellant to this proceeding in the Court of Appeals. Robert W. Walker was sued in his official capacity of Director of Memphis Fire Department. Walker has re- signed from that position since the proceedings in District Court and has been succeeded by James R. Smith. Il TABLE OF CONTENTS QUESTION PRESENTED ....................... PR! PER Ter I ET DEE NES TABLE OF AUTHORITIES ..0o0.....-.-ccccccccccsodcssssssssssssseeee IV Se MNO eee” 2 SA RE CS 2 STATUTORY PROVISIONS INVOLVED ...................... 2 STATEMENT OF THE CASE oo0.........-0-cccccccccccccscssssssssee 3 REASONS FOR GRANTING THE PETITION FOR WRIT OF CERTIORARI ...........---:----.cccccccccceee-------- 7 I. The Decision Of The Sixth Circuit Conflicts With Recent Decisions Of This Court As To The Operation Of A Bona Fide Seniority Sys- II. The Decision Below Will Have A Chilling Ef- fect On The Use Of Voluntary Consent De- III. The Decision Below Constitutes An Improper Judicial Intrusion Into Local Governmental APPENDIX A Opinion of the Sixth Circuit Court of Appeals entered May 7, 1982 ................ Al APPENDIX B Oral Ruling of District Court, May 8, ED sdetachieniiehitaial ~ccsessseunbsnstt-sihasiajeusiieiine A72 APPENDIX C Order of the District Court, May 18, DEED siicichewascxtstilininnininvetaniagsiitideiiicgasae AT77 APPENDIX D Order of the District Court, June 23, ETT deipuoctstevineciupesiciniinecemigpietenielatamaiaatan A80 Iv APPENDIX E Order of the District Court, June 25, RR ee oe A82 TABLE OF AUTHORITIES Cases Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) 13 American Tobacco Co. v. Patterson,» 456 U.S. ........ , 102 Ts GEE TEUITIEEED cccsccsscsecniseestignicatinnmenetthiaisdaieaigiaaninane 8, 11 Brown v. Neeb, 644 F.2d 551 (6th Cir. 1981) 00000000... 14 Carson v. American Brands, Inc., 450 U.S. 79 (1981) ... 14 Detroit Police Officers’ Assn. v. Young, 608 F.2d 671 (6th Cir. 1979), cert. denied, 452 U.S. 938 (1981) ... 17 Ford Motor Co. v. EEOC, 50 U.S.L.W. 4937 (U.S. June Bi TID ccineccsessissrstinsenssiopnrsnssnevinvesscnsediiausiiiesianaaal 11,17 Franks v. Bowman Transportation Company, 424 U.S. We COD | ceerrcnrivascnsnsinnsinqeestsinisenncenciemtniaaidimeaaaaimaaale 9,11 Humphrey v. Moore, 375 U.S. 335 (1964) 0.000... 1] Milliken v. Bradley, 433 U.S. 267 (1977) 0.0.2.0... 16 Morgan v. O’Bryant, 671 F.2d 23 (1st Cir. 1982), peti- tion for cert. filed sub nom. Boston Assoc. of School Administrators & Supervisors v. Morgan, 50 U.S.L.W. 3937 (U.S. May 18, 1982) (No. 81-2124) .......00....... 12 NAACP v. Beecher, ........ PAD: No. In the Supreme Court of the United States October Term, 1982 MEMPHIS FIRE DEPARTMENT, ROBERT W. WALKER, CITY OF MEMPHIS AND JOSEPH SABATINI, Petitioners, vs. CARL W. STOTTS, Individually And On Behalf Of All Others Similarly Situated, AND FRED L. JONES, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Petitioners, Memphis Fire Department, Robert W. Walker, City of Memphis and Joseph Sabatini (hereinafter referred to collectively as the “City”), pray that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Sixth Circuit entered in this case on May 7, 1982. OPINIONS BELOW The opinion of the United States Court of Appeals for the Sixth Circuit as to which the writ of certiorari is sought is reported at 679 F.2d 541 and is reproduced as Appendix A to this petition. The oral ruling of the Dis- trict Court of the Western District of Tennessee issued May 8, 1981, granting the injunctive relief, is not reported but is reproduced herein as Appendix B. The orders of the District Court (two orders granting injunctive relief dated May 18, 1981, and June 23, 1981, and an order ex- panding injunctive relief entered June 25, 1981) are not reported but are reproduced herein as Appendices C, D and E, respectively. JURISDICTION The judgment of the Court of Appeals was entered on May 7, 1982 (Appendix A). This petition is filed within ninety (90) days of that judgment. The jurisdic- tion of this Court is invoked under 28 U.S.C. § 1254(1). STATUTORY PROVISIONS INVOLVED The statutory provisions involved are relevant por- tions of Title VII of the Civil Rights Act of 1964, a: amended (hereinafter referred to as “Title VII"), 42 U.S.C. § 2000e et seq., specifically Sevtion 703(h) thereof (42 U.S.C. § 2000e-2(h):; the Civil Rights Act of 1866, 42 U.S.C. § 1981, and the Civil Rights Act of 1871, 42 U.S.C. § 1983. Section 703(h) of Titie VII, Section 198] and Section 1983 are reproduced as Appendix F hereto. oil STATEMENT OF THE CASE This case concerns the extent to which a court under its equity powers may impose obligations on a party to a consent decree regarding a subject not included in the decree and whether § 703(h) of Title VII protects the operation of a bona fide seniority system from collateral judicial intervention. Specifically, this case raises ques- tions of significance pertaining to the authority of the lower courts to modify a voluntary consent decree between two parties in order to impose additional race conscious obligations not agreed to by the parties and to override the operation of a bona fide seniority system where there has not been any judicial finding of racial discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, or 42 U.S.C. § 1983. Petitioner City of Memphis anticipated an operating revenue deficit for the fiscal year from July 1, 1981 to June 30, 1982, which compelled the Petitioner to imple- ment city-wide layoffs and/or reductions in rank of per- sonnel effective June 24, 1981.' The proposed layoffs in- cluded approximately forty individuals in the Fire Depart- ment. The City proposed to implement the layoffs and reductions in rank based upon a seniority system which was founded upon length of service with the City and in accordance with the provisions of the collective bargaining agreement (referred to as “Memorandum of Understand- ing”) between the City and Local 1784 of the International Association of Firefighters, the employees’ collective bar- gaining representative 3. e Serin ees © Se ate st financial crisis need for reduction in personne} the on the application for s preliminary Injuneton 4 Respondents, Carl Stotts, individually and on behalf of all others similarly situated, and Fred L. Jones, sought to enjoin the seniority-based layoffs pursuant to a 1980 Consent Decree between City and Respondents. Respon- dents had previously brought separate lawsuits against the City of Memphis alleging that the City of Memphis Fire Department maintained racially discriminatory hiring and promotional practices in violation of Title VII, 42 U.S.C. § 1981 and 42 U.S.C. § 1983. The two cases were consol- idated, and on April 25, 1980, a consent decree (hereinafter “1980 Decree”) between Respondents and the City of Memphis was approved by the court, thereby settling the cases. No finding of discrimination was ever made by the court, nor did the City of Memphis admit to any viola- tion of law as alleged by Respondents.’ The 1980 Decree provided that promotions be made to several named individuals and backpay be awarded to specified persons. No award of retroactive seniority was granted to any class member. The 1980 Decree contained a general long-term minority hiring goal which paralleled an earlier hiring goal, to which the City had previously agreed by consent decree entered into with the United States Department of Justice, Case No. CA-74-286 (here- inafter “1974 Decree”). The long-term goal established in both decrees obligated the City to attempt to increase the level of black representation in each job classification of the Memphis Fire Department to equal the black representation in the labor force in Shelby County, Ten- nessee. An interim hiring rate of fifty percent (50% ) black personnel was included in both decrees as a means 5 to more quickly achieve the long-term goal. (Both decrees are set forth as an appendix to the opinion of the Court of Appeals, App. A hereto.) The 1980 Decree also included a twenty percent (20%) black promotional goal in each civil service classification. Neither decree included pro- visions concerning layoffs or reductions in rank, although the 1974 Decree did obligate the City to utilize a seniority system based upon City-wide seniority for various employ- ment practices including promotions, transfers and job assignments (App. A, p. A56, paragraph 6(a)). On May 4, 1981, Respondents applied for a temporary restraining order enjoining the City from laying off or reducing in rank any black employee of the Memphis Fire Department. Respondents contended that the proposed layoffs would violate the terms of the 1980 Decree. The Union, representing Fire Department employees, inter- vened by consent of the parties on May 5, 1981, and a hearing on Respondent’s request for a preliminary injunc- tion was held on May 8, 1981. The District Court found that, although neither the 1974 nor the 1980 Decree contemplated a method to be used for layoffs or reductions in rank, the Court possessed the authority to modify the 1980 Decree by restraining the City from implementing the last-hired, first-fired lay-- off policy within four (4) classifications in the Fire De- partment. The Court further found that, while the policy . was not adopted with the intent or specific purpose to discriminate, the policy was not a bona fide seniority system because its effect was discriminatory (App. B, pp. A73-A74, App. C) The Court instructed the City to propose a layoff method consistent with its order. Subse- quently, on June 23, 1981, the Court expanded the pre- liminary injunction to include three (3) additional classi- fications and on June 25, 1981, approved the newly-fash- ioned layoff policy which was verbally explained to the Court.* On appeal, the Court of Appeals for the Sixth Circuit affirmed the judgment of the District Court in modifying the 1980 Decree to enjoin the last-hired, first-fired senior- ity system. The Court of Appeals relied upon both con- tract and equity theories to support the modification. First, the Court held that the 1980 Decree was in effect a contract on behalf of the City to increase the number of minorities in the work force, and the implementation of a seniority-based layoff would constitute a repudiation of that agreement. Thus, the Court concluded that it could compel compliance with the additional obligations by enjoining the City from layoffs which would reduce the percentage of black representation in the work force (App. A, pp. A32-A34). Second, the Sixth Circuit found that the lower court could exercise its equity jurisdiction to modify the 1980 Decree upon a showing of “changed circumstances.” The Court of Appeals found that the layoffs made as a result of an unanticipated economic crisis would frustrate the purpose of the decree; therefore, modification of the decree to prevent a retrogressive effect was appropriate (App. A, pp. A35-A37). The Court further found that the District Court did not abuse its discietion in modifying the decree in such a manner as to alter the existing seniority provisions be- tween the City and the Union, which was not a party to the 1980 Decree. The Sixth Circuit, however, vacated 3. Pursuant to the Court’s orders, the City proposed that the layoffs would be made based upon seniority, however the black employees on the seniority list would be over so as to maintain the racia! composition of each classification. Thus, 7 the District Court’s holding that the layoff policy was non- bona fide merely because its effect would be discrim- inatory (App. A, pp. A-11 n.6, A41). The Court advanced three legal theories to support its holding that the bona fide seniority system between the City and the Union could be modified without the consent of either party. These theories included: 1) a settlement theory by which an employer may alter seniority provisions of af- fected employees in settlement of disputed claims; 2) a court’s authority under the Supremacy Clause; and, 3) an employer’s authority to temporarily override the provi- sions of a collective bargaining agreement pursuant to a valid affirmative action plan. Circuit Judge Boyce F. Martin rendered a separate opinion concurring in part and dissenting in part. Judge Martin agreed with the majority holding that the District Court did have the authority to modify the decree in light of changed circumstances but dissented from the majority’s holding that the 1980 Consent Decree between the City and Respondents could legally alter existing bona fide seniority provisions over the objection of the adversely affected Union. REASONS FOR GRANTING THE PETITION FOR WRIT OF CERTIORARI I. The Decision Of The Sixth Circuit Conflicts With Recent Decisions Of This Court As To The Op- eration Of A Bona Fide Seniority System. As a result of the economic plight necessitating in- creased layoffs of municipal and state employees, courts are now faced with a legal controversy similar to the flurry of the economic-related litigation regarding senior- ity systems which arose from the 1974 recessionary era. tal Oo Here, however, an additional factor is included within the legal issue—consent decrees between public employers and minority employee groups (and/or the Justice De- partment) by which the employer has agreed to increase minority representation in the work force. The question now presented is, what is the effect of a consent decree which obligates the public employer to increase minority representation in the work force on the utilization of a bona fide seniority system to bring about the necessary reduction in personnel. Petitioners assert that the pro- tections afforded bona fide seniority systems, as declared by this Court, are applicable to and immunize the seniority system from attack under a consent decree which is silent as to layoffs, particularly where there is no evidence that the employer has failed to comply with the decree. The Sixth Circuit opinion held that, under the 1980 Decree, the Court had the authority to forbid the City from utilizing a layoff policy based upon a bona fide seniority system agreed to by the City and the employees’ collective bargaining representative, even though no find- ing of racial discrirnination had been made against the City.‘ The Sixth Circuit ignored this Court’s teachings regarding the special protection afforded bona fide senior- ity systems. This Court recently coalesced its earlier decisions re- garding the statutory protection afforded bona fide senior- ity systems in American Tobacco Co. v. Patterson, 456 ) sabia , 102 S.Ct. 1534, 1541 (1982): 4. Under the Court’s holding in Pullman-Standard v. Swint, 102 S.Ct. 1781, 1796 (1982), the bona fide status of the seniority- based layoff policy is not at issue herein as the finding of the District Court that the layoff policy was not adopted with a yor purpose was not challenged on appeal (App. A, p. All n.6). 9 Our prior decisions have emphasized that ‘seniority systems are afforded special treatment under Title VII itself,’ Trans World Airlines Inc. v. Hardison, 432 U.S. 63, 81, 97 S.Ct. 2264, 2275, 53 L.Ed.2d 113 (1977), and have refused to narrow § 703(h) by reading into it limitations not contained in the statutory language In Teamsters v. United States, supra, we held thai £ 703(h) exempts from Title VII the disparate impact of a bona fide seniority system even if the differential treatment is the result of pre-Act racially discrim- inatory employment practices. Similarly, by holding that ‘[a] discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed,’ United Air Lines, Inc. v. Evans, 431 US. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977), the Court interpretated § 703(h) to immunize senior- ity systems which perpetuated post-Act discrimina- tion. Thus, taken together, Teamsters and Evans stand for the proposition stated in Teamsters that ‘[s]ection 703‘h) on its face immunizes all bona fide seniority systems, and does not distinguish between the perpetuation of pre- and post-Act’ discriminatory impact. By prohibiting the use of the bona fide seniority systems in the reduction of City personnel, the Sixth Circuit, in effect, awarded retroactive or constructive seniority to the minority firemen without any showing or proof of discrimination against the minority firemen. Under this Court’s holding in Franks v. Bowman Trans- portation Company, 424 U.S. 747 (1976), an award of retroactive seniority may be granted only upon a show- ing of post-Act discrimination against identifiable in- dividuals. This position was recently reiterated in 10 the concurring opinion of Mr. Justice Powell, with whom the Chief Justice and Mr. Justice Rehnquist joined, in Zipes v. TWA, 455 USS. ........ ens , 102 S.Ct. 1127, 1136 (1982): “My concern with the Court’s opinion is that it does not make clear that a timely charge, as well as a violation of Title VII, is a prerequisite to disturbing rights under a bona fide seniority sys*em. . . .” (Emphasis added). Zipes approved an award of competitive seniority to identifiable victims of discrimination where there had been a previous judicial finding of a discriminatory em- ployment practice. No like finding has been made herein; rather, the Sixth Circuit has insulated empiluyees from layoff merely because of their minority status The Sixth Circuit’s majority opinion rationalized that, had a violation of 42 U.S.C. § 1983 been established, the Court would have had the authority to invoke the Su- premacy Clause of the Constitution to override the Union’s seniority provisions; consequently, the majority found that the trial court had such authority to override the seniority provisions between the City and the Union (App. A, p. A43). The majority based its conclusion not on any judicial finding of discrimination but rather on its assump- tion that the allegations in the complaints could support a finding of discrimination. It is clear, however, that the invocation of the Su- premacy Clause as a tool to override a non-party’s rights can only be predicated upon a finding that a party’s con- stitutional rights have been infringed. As stated by Judge Boyce Martin in his concurring and dissenting opinion below, 679 F.2d at 569, App. A, p. A49: 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 par- 11 ticipating party, and a court determines that: ‘(1) plaintiffs’ constitutional rights had been infringed; and (2) it was necessary, to vindicate plaintiffs’ con- stitutional rights, to hold such contract and statutory rights of the Union to be unenforceable.’ Brown v. Neeb, 644 F.2d at 567 (Brown, J., concurring in result only). y) @.. Thus, there is no support in the record for the majority’s extension of its authority under the Supremacy Clause. Moreover, by prohibiting the use of the bona fide seniority system, the Sixth Circuit has failed to recognize the importance of seniority provisions in this country’s labor policy detailed by this Corrt in numerous opinions. In American Tobacco Co. v. Patterson, supra, the Court reaffirmed seniority’s special role as found in the earlier decisions of Humphrey v. Moore, 375 U.S. 335, 346 (1964) (seniority provisions are of “overriding importance” in collective bargaining), and Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 79 (1977) (seniority in the collec- tive bargaining process “lies at the core of our national labor policy... .”). See also Ford Motor Co. v. EEOC, 50 U.S.L.W. 4937, 4942 (U.S. June 28, 1982). The unique position of seniority in the national labor policy must be viewed vis a vis the purpose of Title VII to eliminate discrimination in employment. The legisla. tive history, as reviewed by this Court in Patterson and Franks, demonstrates that Congress was concerned with the potential effect that Title VII would have on seniority rights. Thus, the exemption afforded seniority systems under § 703(h) of Title VII clearly represents a balance between the two policies, and the courts should not dis- turb the balance so carefully struck by Congress in passage of Title VII. See American Tobacco Co. v. Patterson, 12 supra. This balance has been destroyed by the Sixth Circuit’s judgment below. Given the newly framed collateral challenge to senior- ity systems, it is evident that the conflict between the decision below and the principles stated by this Court regarding the protection and operation of bona fide senior- ity systems present an important and recurring issue that should be settled by this Court.° II. The Decision Below Will Have A Chilling Effect On The Use Of Voluntary Consent Decrees. The judicial willingness to modify consent decrees to include provisions not agreed to by the parties and to override contractual obligations of one party to a consent decree will discourage future use of voluntary consent agreements entered into by both private and public em- ployers in settlement of discrimination lawsuits. This case brings to the Court the opportunity to give needed guidance concerning the scope of judicial authority to ex- pand or alter consent agreements under contract principles or a court’s equity jurisdiction pursuant to “changed cir- cumstances.” In considering the issue, an understanding of the spe- cific terms and agreements contained in the 1980 Decree is essential. The parties agreed, inter alia, to three major points relevant to this issue: 1) a long-term goal of in- 5. Petitioners would show that at least one other Circuit has been faced with this issue. The United States Court of Ap- peals for the First Circuit has rendered two decisions involving the effect of consent decrees on reduction in personnel, NAACP v. Beecher, ........ - == , 28 Fair Empl. Prac. Cas. 1657 (1982), and Morgan v. O’Bryant, 671 F.2d 23 (1982), petition for cert. filed sub nom. Boston Assoc. of School Administrators & Super- visors v. Morgan, 50 U.S.L.W. 3937 (U.S. May 18, 1982) (No. 81- 2124). Im both cases, the First Circuit enjoined the use of a facially neutral layoff policy where the lower courts had made previous findings of racial discrimination. 13 creasing the percentage of minority employment in the Memphis Fire Department, equal to that of the labor force of Shelby County, Tennessee, 2) an interim hiring goal of 50% black personnel, and 3) an interim 20% black promo- tional goal in each civil service classification. No time tables were specified in the 1980 Decree; rather, the obli- gations under the decree were purposefully set forth as “long-term.” There is no dispute that the City has made a good faith attempt to comply with its obligation under the de- cree. In fact, at the time of the hearing on the injunctive relief in this case, the proof revealed that the City had exceeded the 50% minority hiring goal (56%) and that the minority promotional rate stood at sixteen percent (16%) since the entry of the 1974 Decree. Under the long-term goal, the black representation in the Fire De- partment had increased from roughly three-four percent (3-4%) to eleven and one-half percent (1142%). The testimony was that the layoffs to be made under the senior- ity system would have reduced the percentage of black employees in the Fire Department by only one percent (1%). Moreover, the personnel affected by the reductions possessed preferential recall and/or promotional rights (in order of seniority) for a two year period. Thus, prior to new hirings or promotions within the affected job classi- fications in the Fire Department, the laid off or demoted employees would be returned to their original positions, and the overall goal of the 1980 Decree would suffer only minimal, temporary disruption. Congress fully recognized that voluntary settlement of Title VII suits was a preferred means of achieving the elimination of employment discrimination. See Alezx- ander v. Gardner-Denver Co., 415 U.S. 36 (1974). Refusal by a court to enter a consent decree is an appealable order 14 because, in part, such refusal undermines one of the pol- icies of Title VII regarding voluntary compliance. See Carson v. American Brands, Inc., 450 U.S. 79, 88 n.14 (1981). The willingness by the courts, as demonstrated below, to impose upon a party obligations not specified in a consent decree over the party’s objection and absent evidence establishing liability would serve only to defeat the Congressional and judicial policy favoring voluntary settlment. As stated by Judge Bailey Brown in his concurring opinion in Brown v. Neeb, 644 F.2d 551 (6th Cir. 1981), judicial caution should be exercised in interpreting decrees to provide additional obligations: 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 re- straint in modifying the consent decree to overrule the decision of the elected City officials and their appointees concerning the proper way to meet this financial crisis. National League of Cities v. Usery, 426 U.S. 853 (1976). Id. at 565. Similar reluctance to incorporate obligations not negotiated by the parties was expressed in Youngblood v. Dazell, 568 F.2d 506 (6th Cir. 1978), where the Court refused to enjoin seniority-based layoffs notwithstanding the existence of a consent decree obligating the city to increase minority employment. In modifying the consent decree to impose additional obligations which were not agreed to by the City and nts, the Sixth Circuit stated that the Respon- dents would suffer an undue hardship absent modification 15 (App. A, p. A37). Modification should not be granted unless supported by “a clear showing of a grievous wrong evoked by new and unforeseen circumstances.” United States v. Swift & Co., 286 U.S. 106, 119 (1932). The seniority-based layoffs which would have resulted in a tem- porary one percent (1% ) reduction in black representation do not constitute a grievous wrong such as to vitiate the intended effect of the decree. The City was and is still obligated to increase minority representation in the Fire Department under the interim hiring and promotonal goals, and there has been no evidence offered to even suggest that the City would not continue to comply with its obligations under the 1980 Decree. Thus, modification of the decree by enjoining the proposed layoffs and by im- posing additional obligations upon the City was improper. If the judgment below is allowed to stand, the adverse effects upon voluntary settlement of discrimination claims will be significant. The message will be clear to all public and private employers that obligations under a consent decree may be expanded without a finding of unlawful conduct to include items not agreed to by the employer, even though the employer has fully complied with its obligations under the decree.* Such position will only serve to impair voluntary settlement and greatly increase litigation. Ill. The Decision Below Constitutes An Improper Ju- dicial Intrusion Into Local Governmental Affairs. In fashioning equitable remedies for racial discrim- ination the Court has recognized the potential for the ju- diciary to overreach into local affairs and has cautioned 6. The Mayor of the City of Memphis testified that he would not have agreed to the 1980 Consent Decree had it pro- vided for layoffs other than by City-wide seniority. 16 the federal courts to be mindful of the interests of state and local authorities in managing their own affairs consistent with the Constitution. Milliken v. Bradley, 433 U.S. 267, 282 (1977). The Sixth Circuit's finding that the bona fide seniority system could be overridden with respect to the layoffs without a finding of discrimination clearly demon- strates excessive judicial intrusion into the local affairs of the City of Memphis. The Sixth Circuit attempts to avoid this limitation on its authority by stating that the District Court’s orders merely prohibited the layoffs as proposed, and the City was free to choose alternative solutions. Such disclaimer, however, is mere sophistry. The District Court’s orders did not merely enjoin the layoffs. Rather, the Court ordered the City to propose an alternate method for the layoffs, and then, by the Order entered June 25, 1981, approved layoffs of the fire per- sonnel which contravened both the seniority provisions contained in the Memorandum of Understanding between the City and the Firefighters Union Local 1784 and the layoff policy previously embodied by the City government. The District Court’s imposition of the race-conscious lay- off policy on the objecting municipality and Union without a finding of racial discrimination exceeds the bounds of judicial restraint as expressed in Milliken v. Bradley, supra. Moreover, the approval of a race conscious layoff plan by the court constitutes an unreasonable affirmative action plan imposed upon the City. This Court has held that an employer may utilize a voluntary affirmative action plan where that plan provides an effective remedy for past discrimination without unnecessarily trammeling the interests of nonminority employees. United Steelworkers of America v. Weber, 443 U.S. 193, 208 (1981). Petitioners submit that the judicially approved layoff plan which abrogates the nonminority employees’ pre-existing senior- 17 ity rights is far more detrimental than the mere delay of employment expectations before the Court in Weber. The Court’s orders herein unnecessarily deprive those non- minority employees of a vested employment right and are therefore impermissible. See Detroit Police Officers’ Assn. v. Young, 608 F.2d 671, 696 n.12 (6th Cir. 1979), cert. denied, 452 U.S. 938 (1981). See also Ford Motor Co. v. EEOC, supra, where this Court rejected the argument that an offer of retroactive seniority must be included in an offer of settlement to toll back liability under Title VII, finding that such requirement would impose a far too heavy burden on innocent employees. For these reasons, the Court must delineate the pre- requisites for judicial modification of consent decrees to prevent this and further improper judicial intrusion into the management of loca] governmental affairs. CONCLUSION For all the foregoing reasons, Petitioners pray that a writ of certiorari issue to review the judgment and decision of the United States Supreme Court of Appeals for the Sixth Circuit in this case. Respectfully submitted, Currrorp D. Prerce, JR. City Attorney Louts P. Britt III Assistant City Attorney Office of the City Attorney 125 N. Main Memphis, Tennessee 38103 Attorneys for Petitioners, Memphis Fire Department, Robert W. Walker, City of Memphis and Joseph Sabatini Al APPENDIX APPENDIX A Nos. 81-5348-9 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Cari. W. Storrs, Individually and on , behalf of all others similarly situ- ated, Plaintiffs-Appellees, and Frep L. Jones, Plaintiff-Appellee,| ON Arpgat from the United States District -" Court for the West- Mempuis Fre DerartMENT; Rosent| ¢ District of Ten- W. Waker, City oF Mempuis,and| essee. Joserpu SABATINI, Defendants-Appcllants, and Fimericuters Locat Union 1784, Defendant-Intervenor-Appellant. Decided and Filed May 7, 1982. Before: Kerrn and Mantin, Circuit Judges and Duncan.* Kerrn, Circuit Judge, delivered the opinion of the court, in which Duncan, Circuit Judge, joined. Martin, Circuit Judge (pp. 46-51), delivered a separate egtaien, concurring and dissenting in part. * Hon. Robert M. Duncan, U.S. District Court for the Southern District of Ohio, sitting by designation. A2 Kerrn, 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 all 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 uf 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, 31 U.S.C. § 1221 et seg. 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 cl.-sification 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: a ee the pustetiotion of the Spteed Gtates shall ve same in every and Territory enforce be give evidence, ft . to the of and propert is enjoyed by citizens, shall be subject to like ‘punishment, pains, penalties, taxes, 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 coverage included several articles describing the Stotts case and its effect on the Fire Depart- ment. 361983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the Uni States or other person within the jurisdi ction thereof to the deprivation of any rights, privileges, or immunities secured by the Consti- tution and Laws, shal] be liable to the party injured in an action at law, suit in equity, or other proper proceedings for 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-appellees 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 settlement negotiations were contin- uing. On February 20, 1980, both the City and Plaintiffs appeared before the court and siated that the settlement was complete “except for about five different things.” Five days later, the parties again appeared 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 A6 decree was the final resolution of the consolidu'ed Stotts case and applied to all class members. The parties informed the court that they only sought preliminary approval of the decree and the court's consent to post the decree for 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 promotiona! 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 decrce should not have any affect on the promotional opportunitics 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 intervenors argue that the decree was the product of collusion. The court denied the proposed intervenors’ motion 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 4 According to the proposed intervenors, que sem would occur whenever a minority and non-minority ate were equally qualified for a position but the minority got the position. The minority would obtain the title, he pe a pay for the promotion while the non-minority receive the pay as a con- structive promotion. 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 (1c 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 evidentiwy hearing was held on May 8 to consider Plaintiffs’ request for a preliminary injunction. The court made several 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 accomplished 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 5S Between 1950 and 1976, the Memphis Fire Department hired 94 bleck 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 Lievtenant 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 Black White Driver 0 8 Lieutenant 0 5 Captain 0 2 In 1979, blacks constituted between 33 and 37 percent of the Memphis population. However, the Fire Department was only 10 percent black. The past hiring and promotional policies of the City of Memphis caused the Fire Department to exhibit the following racial characteristics in 1979: BLACK WHITE I ADMINISTRATION Senior Account Clerk 0 2 Accountant 0 1 Al0 III. Secretary Executive Secretary Personne] Li Master Plans Coordinator OSHA Coordinator Manager — Fire Personnel Administrative Assistant Total APPARATUS MAINTENANCE Vehicle Serviceman Preventive Maintenance Repairman Fire Maintenance Mechanic District Chief Total MATERIAL SERVICES Storage Keeper Crewman Building Maintenance Supervisor Manager BLACK Sl hee ne oe iS] 8 | mm wena ee ae 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- 2 : i 3 z FS e =} a & z AMBULANCE SERVICE Emergency Unit Operator a aenen District = = —|coo~ - In Teamsters, supra, the Supreme Court stated statistics indicating racial imbalance are often “a telltale sign discrimina- tices will in time result in a workforce more or less representative S Oe ee sempeee & Oe oy Id. at n.20. In the spring of 1981, blacks constituted only 11 percent the Memphis Fire ge SM - d D prima facie case of employment discrimination € The district court erred in ruling that the system was — ek E adopted with a discriminatory purpose. been See wr Meller Co, 6 34 11 1122 { saail Tie austiel court ait aad that Ga lanels 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 Lieutenants, 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 ‘njunction 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 (Sth 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 Heights, 616 F.2d 1006, 1013 (7th Cir. 1980); United States v. Philadelphia, 931,327 (.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 4 forum in which any comments and objections to the de- cree can be aired. Village of Arlington Heights, 616 F.2d at 1014; Equal Employment Opportunity Commission v. Amer- ican Telephone aad 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- litigation. Four months before the 1980 Decree was an- nounced, the City informed the court that settlement nego- 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. v. 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. Sev Setser v. Novack Invest. Co., 657 F.2d 96°. 969 (8th (.. 1981), cert. denied, —— U.S. ——, 102 S.Ct. 615 (1981); Beker, 504 F.Supp. at 843 n.i. 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. In 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 ®The 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 130,393, 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 reasonable 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 discriminatory pre-Act and post-Act apy yey Hy RAE H.-S -F- nm a consent decree. See Detroit Police Officers Association, 608 F.2d s 8 sek ge8 (ee Cie sedi), Detrete Police Oflcore Assoctasion, O04 Fad at 689, 690. In the context of consent decrees action relief, we interpret the disclaimer of to be an admission that there is a statistical the defendants eS reservation of the 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 bee 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 {130,700 (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 company was unable to achieve its intermediate target, the decree required it to depart from normal standards 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. Consequently, one objecting to the decree bears the heavy burden of demon- strating that the decree is unreasonable. Philadelphia, 24 EPD Al? at 18,047; Miami, 614 F.2d at 1334. A decree may be finally approved over the objections of class members and non-minori- tics who are affected by it. See Dennison, 658 F.2d at 696; Holmes v. Continental Can Co., 25 EPD § 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, 2A 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. Some 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 each litigant’s case. See Alexandria, 614 F.2d at 1362. In the instant case, all 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. 11 “Settlement agreements should. . . be upheld whenever equitable and policy considerations so permit. By such agreements are the burdens of trial spared to the parties, to other litigants waiting their turn before overburdened courts, and to citizens whose taxes support the latter. An amicable compromise provides the more speedy and reasonable remedy for the dispute.” Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1372 (6th Cir.), cert. denied 429 U.S. 862 (1976). 12 An employer, such as the City, is unlikely to have an over- compromising attitude toward affirmative action. Employers recog- nize, as does the dissent, that an inequitable or overly zealous affirma- tive action plan may create racial tension in the workplace. The presence of this tension may creaie dissention and a general non- productive work climate. is unfortunate, but real potential for non-minority backlash is a potent disincentive which restrains em- from to s ng affirmative action. H L 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 sufficicnt 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.'2 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 promotiona! 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 13 Statistical evidence of racially te ingest may establish a statutory violation of Title VII. See age States, 431 US. 324, 339 (1977). Under some circumstances such evidence could te a constitutional violation. See Villiage Arlington Heights v. Metropolitian Housing Corporation, 429 U. 252, 266 and n13 (1972). A22 promoted even absent the consent decree. In fact, absent disc.imination, 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 presumptively 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 inter- venors to air their objections to the 1980 Decree. The pro- posed 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 (Sth 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. (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 U.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 « 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. 'SIf a violation had been established, the remedy would have embodied retrospective as well as prospective relief. See Albmarle Paper Co. v. Moody, 422 U.S. 405, 418 (1974). A25 Quite apart from the contractua] 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 1 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 vn the motion of the parties. 17 We express no 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 con- ciliation agreement which results in a consent decree as an act of discrimination against employees not benefitted 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 he 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 benefits 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 interest 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 attcnipted to promote minorities, it would be required to pro- vide an equivalent amoum 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 Cecree 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 employm.:.i 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 societai 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 wnprece- 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 veigh whether the plaintiffs have shown a strong possibility of success on the merits, whether the plaintiff or de:endant 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, 26] (6th Cir. 1977). The standard of appellate review is A31 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, 93: (4th Cir. 1981). IV. MODIFICATION OF A CONSENT DECREE 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 priaciples. 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 _snger 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 beneficiarics 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 ‘vith 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 Ievcls 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 subjected 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 ics 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 squarely presented on this appeal.'® We, therefore, express ne opinion on whether the 1980 Decree could have been modified pursuant to Rule 60 C. 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., 602 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 approach to the modification of a complex affirmative injuction which over-emphasized the interest of finality at the expense of achievability would inevitably make defendants w of any decree imposing more than the bare minimum of tive obligation. That wariness would, we think, tend to discourage the settlement of injunction actions by consent dec a high rice to pay for benefits of finality. where the is itigated, if the power to modify were too closely curtailed the defendants might seek, and the courts might tend to impose, minimum affirmative obligations, my less than realistically A36 (1932); Hughes 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, 5316 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 alsc 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 indicating 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 o: the Brown dccree 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 were an unexpected circumstance not antici+ pated by the parties when they entered 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 layoff 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., EEOC 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) Title VII, 42 U.S.C. § 2000e-2(h), immunizes “bona ff€e” 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 ~~" because the col- lective bargaining agrecment between the City and the firemen is void and unenforceable under Tennessee law. See Keeble v. City Alcoc 204 Tenn. 286, 319 S.W.2d 249 (1958). Consequently, the tri court’s modification of the layoff eeceiare did not violate a valid —sv- bargaining agreement. e need not, and do not decide s issue. Plaintiff has also attempted to disti h Teamsters by rai the issue of whcther Firefighters Local Union 1784, a union fo after the effective date of Title VII, can be bona fide. 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. 2) Circuit Judge Brown and District Judge 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 a to full explain my position and the substantial case au iy in suppert of 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 «irline 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. Newspaper & 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 scttlements 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 plaintiffs 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 discourage 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 *> 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 ard expense typical of ad- versary hearing and judicial 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, affd , 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 rcquired 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. B. 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 cour. 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 successful 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 Telegraph, 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 imcongruous 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 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 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 position of union steward. During the course of work on the project, Alberici determined that it did not need four However, to maintain compliance with the goals set in i Ad4 regulations, a cutback in its force required the maintenance of at least one minority ironworker on the site. Consequently, 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 Agree- 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 604 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 Plaintiffs 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. ! write separately because I can concur only in the result. I agree that the District Court properly enjoined the City of Memphis frum 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 ot 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 mect 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 seniority provisions over the objection of an adversely affected union.” As support for this stateme at, Judge Keith reasons that this Court held in Brown that ‘the Supremacy 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 Biown, 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 to layoffs by seniority. The Union, although it had existing contract and statutory rights to layoffs by seniority, was not a party to this litigation when it was filed and when the consent decree was entered. Theref [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_0572%3A1. Public record. Not legal advice.