Birmingham Fire Fighters Ass'n 117 v. Jefferson County

290 F.3d 1250, 2002 WL 856297
Court of Appeals for the Eleventh Circuit·Decided May 6, 2002·No. No. 01-10544·Published·Cited by 3 cases

Opinion

CARNES, Circuit Judge:

This appeal is another installment in the long-running story involving the consent decrees governing the hiring and promotion procedures of the City of Birmingham. The first quarter of a century of the litigation is summarized in Ensley Branch N.A.A.C.P. v. Seibels, 31 F.3d 1548, 1552 (11th Cir.1994) (Ensley II). See also Birmingham, Fire Fighters Ass’n 117 v. Jefferson County, 280 F.3d 1289 (11th Cir.2002)(our most recent opinion stemming from the case). Rather than fill up pages repeating what we have said before, we will assume familiarity with the background set out in our earlier opinions, especially the 1994 Ensley II one, and focus here on the more recent events that relate to this appeal.

I. BACKGROUND

Our 1994 decision required the district court to modify the original decree so that the City would be ordered to implement “valid job selection procedures forthwith.” Ensley II, 31 F.3d at 1552. (The decision required the same of the Personnel Board insofar as its job selection procedures were concerned, see id., but the Board and the decree aimed at it is not involved in this appeal, so we will confine our discussion to the City decree.) The result on remand was a debate over exactly how the decree should be modified to comply with our decision. The Wilks class (consisting of non-black males) moved the district court to modify the decree to require the City to conduct job validation studies for all of its selection procedures, even those for which no adverse impact was found. The United States, the City, and the Martin/Bryant class (consisting of black persons and non-black females), however, took the position that our 1994 decision required that the City be ordered to validate as job related only those procedures which have an adverse impact.

The district court decided that the United States, the City, and the Martin/Bryant class were right and the Wilks class was wrong about what our Ensley II decision required. In December of 1995, the district court issued an order modifying the City decree in response to our decision. One of the key terms of that modification order, and the only one relevant to this appeal, required the City to put in place job selection procedures that “either: (1) have no adverse impact on the basis of race or sex ...; or (2) be job related for the job elassification(s) in question and consistent with business necessity, in accordance with Title VII....”1

[1253]*1253No one appealed that or any other aspect of the 1995 modification order. Instead, as required by another part of the order, the parties exchanged information so that compliance with the decree as modified could be monitored. By agreement of the parties, several hundred job classifications were dropped from further consideration under the decrees for one reason or another. From 1996 until May of 1998, the only filings relevant to this appeal were those of both the Wilks class and the Martin/Bryant class, consisting of reports filed in 1996 identifying jobs with selection procedures they contended had an adverse impact based on race or sex. Then, in May of 1998, the Wilks class filed a motion seeking to have the City held in contempt on the ground that its promotional practices relating to the police department violated the modified decree. After conducting an evidentiary hearing, the district court found that no adverse impact had been shown from the promotion procedures for any positions in the police department except those for police captain. The district court ordered the City to validate the promotion selection procedures for that one position.

Two years later in November of 2000— nearly five years after the 1995 modification order had been entered — the Wilks class filed a motion asking the district court to modify the decree further so that it would require the City to validate the selection procedures governing hiring and promotion for all positions, not just those procedures identified as having disparate impact. The Wilks class presented no evidence that those job selection procedures which had not been found to have an adverse impact were anything other than race-neutral, although that is what the class suspects. As it explained to the district court, “[sjimply requiring the avoidance of adverse impact is tantamount to an order to continue a program of racial balancing.” The Wilks Class stated that “the experience of the past five years confirms that the 1995 City Order is inadequate to meet the Eleventh Circuit’s finding that new race-neutral City selection procedures are necessary.”

In December of 2000, the district court summarily denied the Wilks’ Class motion to modify the City decree any further. It is that order the class has appealed.

II. DISCUSSION

The opening, and as it turns out closing, issue in this appeal is one of appellate jurisdiction. We have jurisdiction under 28 U.S.C. § 1292(a)(1) over orders “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.... ” For these purposes, consent decrees are injunctions. See United States v. City of Miami 664 F.2d 435, 445 (5th Cir.1981). If one of the parties is the United States, as is the case here, all of the parties have sixty days in which to file an appeal of an order modifying or refusing to modify a consent decree or other type of injunction. See Fed. R.App. P. 4(a)(1)(B).

If a party whose motion for an injunction, or to dissolve or modify an injunction, is denied fails to file an appeal within the prescribed time-frame, it may not file a successive motion requesting the same relief “simply to revisit the initial injunction decision or resurrect an expired time for appeal.” 16 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3924.2 (2d ed.1996). Our decision on that point came in Winfield v. St. Joe Paper Co., 663 F.2d 1031, 1032 (11th Cir.1981), where we held that we lacked jurisdiction over an appeal of an interlocutory order denying a [1254]*1254motion for a preliminary injunction, because the motion was identical to one that the district court had denied two years earlier and from which no appeal had been taken. The latest motion we characterized as simply “a refiling of a motion which had been denied two years earlier,” and we noted there was a “total absence of additional factual submissions to the record or even allegations of changed circumstances since the previous district court ruling.” Id. at 1032. We explained that finding appellate jurisdiction in those circumstances circumvents the policy of Rule 4 of the Federal Rules of Appellate Procedure

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Birmingham Fire Fighters Ass'n 117 v. Jefferson County, 290 F.3d 1250, 2002 WL 856297 (11th Cir. 2002).

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