United States v. City of Hialeah

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 8, 1998
• Docket: 94-5083
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 94-5083

D.C. Docket No. 94-1140-CV-SH

UNITED STATES OF AMERICA, Plaintiff-Appellant, Cross-Appellee,

versus

CITY OF HIALEAH, RAUL L. MARTINEZ, Mayor (in his official capacity), HIALEAH PERSONNEL BOARD, et al., Defendants-Appellees,

RAFAEL SUAU, Defendant-Appellee, Cross-Appellant.

__________________________

Appeals from the United States District Court for the Southern District of Florida __________________________ (May 7, 1998)

Before CARNES, Circuit Judge, KRAVITCH and REAVLEY*, Senior Circuit Judges:

CARNES, Circuit Judge:

The United States appeals the district court’s refusal to

approve part of a consent decree it negotiated with the City of

* Honorable Thomas M. Reavley, Senior U.S. Circuit Judge for the Fifth Circuit, sitting by designation. Hialeah, Florida. The underlying lawsuit claims that the City

discriminated against blacks in hiring firefighters and police

officers in violation of Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e et seq. Other parts of the consent decree have

been approved and entered, and they are not in question. One such

part requires the City to hire as police officers and firefighters

thirty blacks from a pool of prior applicants who were qualified

but had been denied employment. The part of the decree the

district court refused to enter would have granted retroactive

competitive seniority to those thirty new black employees.

The district court, while finding that the United States had

established a prima facie case of discrimination, refused to

approve the retroactive seniority remedy part of the proposed

decree because of objections from the police and fire unions, and

from a group of individual police officers including Rafael Suau

(the “Suau objectors”). The court found that the retroactive

seniority provision in the decree would violate contractual

seniority rights of the incumbent employees, rights guaranteed to

them in the unions’ collective bargaining agreements with the City.

It therefore refused to enter that part of the proposed consent

decree over the objections of those whose legally enforceable

seniority rights would be adversely affected.

The United States contends that the district court erred in

refusing to enter the part of the decree granting the new black

employees retroactive seniority rights. The Suau objectors’ cross-

appeal, contends that the district court erred in finding that the

2 United States had made out a prima facie case of discrimination.

We agree with the district court that the retroactive seniority

part of the proposed consent decree would have diminished the

seniority rights of incumbent employees, which are legally

enforceable rights guaranteed to them by their collective

bargaining agreements. Accordingly, we hold that the district

court properly refused to approve that part of the proposed decree

absent either the consent of the unions and the individual

objectors, or a finding that the provision was necessary and

appropriate to remedy discrimination proven during a trial at which

all affected parties had an opportunity to participate. In light

of that holding, we also conclude that the cross-appeal is moot. I. FACTUAL AND PROCEDURAL HISTORY

In February 1992, the Department of Justice began an

investigation into the hiring practices of the police and fire

departments of the City of Hialeah, Florida. As of August 1992,

the Hialeah workforce was approximately 17% black, but only 2% of

Hialeah police officers and 1% of Hialeah firefighters were black.

Only 25.2% of black applicants passed the entry-level police

examination, while whites had a 61.9% passing rate. Furthermore,

only 67.2% of black applicants passed the entry-level exam for the

fire department, while 95.9% of white applicants passed that

examination.

In May 1993, the Department of Justice told the City that its

hiring practices violated Title VII. Specifically, the Department

claimed that the number of blacks in the police and fire

3 departments did not adequately reflect their presence in the

workforce. The Department also contended that the City's entry-

level examinations for these positions had an adverse impact on

blacks and were not consistent with business necessity.

Between May 1993 and June 1994, the City and the Department of

Justice negotiated a settlement agreement. No representatives of

either the police or fire unions were included in any part of these

negotiations. Under the terms of the settlement agreement, the

City, while not admitting to any Title VII violations, agreed to:

(1) establish a recruitment program aimed at increasing the number

of black police and firefighters; (2) develop written entry-level

examinations that are consistent with business necessity or that do

not adversely impact blacks; and (3) provide individual relief to

black applicants who had been denied positions in the past solely

because of their test scores.

That individual relief was to be composed of three components:

(1) a monetary settlement of $450,000 to be distributed among

eligible claimants as back pay; (2) a commitment to provide

priority employment in each department to fifteen blacks who had

been denied employment solely because of test scores, meaning that

each department would hire its next fifteen employees from the

class of eligible claimants; and (3) each claimant hired under the

priority employment provision would receive remedial retroactive

seniority dating from six months after his or her original

application for employment. The settlement agreement terms were

incorporated into a proposed consent decree.

4 After the Department of Justice and the City completed their

settlement discussions, the Department filed, on behalf of the

United States, a Title VII complaint against the City on June 7,

1994. On the same day, the City and the Department filed a joint

motion requesting that the district court approve the proposed

settlement agreement and enter the consent decree.

On June 29, 1994, the district court granted a motion by the

United States to join as defendants the Dade County Police

Benevolent Association (PBA) and the Hialeah Association of

Firefighters, Local 1102 of the International Association of

Firefighters, AFL-CIO (Local 1102). Those unions are the authorized

collective bargaining units for Hialeah police officers and

firefighters. The Department of Justice contended that the joinder

of those two unions was necessary to insure that the relief

provisions of the settlement agreement could be fully implemented.

Neither union, however, had been allowed to participate in the

formulation of the settlement agreement that the parties asked the

district court to impose. Attorneys for Local 1102 had expressed

interest in taking part in the negotiations two weeks before the

Department of Justice filed its complaint; the Department, however,

never invited either union to participate.

On August 11, 1994, the district court held a fairness

hearing, at which time it allowed Raul Suau and approximately 200

other individual police officers to intervene. At the fairness

hearing, the district court did not allow the Suau objectors to

develop evidence that they claimed would contradict the statistical

5 evidence that the Department of Justice used to build its prima

facie case. Nor did the district court allow the Suau objectors to

cross-examine the government’s statistical expert. However, the

district court did allow the unions and the Suau objectors to

present nonevidentiary objections to the provision granting

retroactive competitive seniority to blacks hired pursuant to the

settlement agreement. “Competitive seniority” determines the

allocation of benefits for which employees must compete with one

another, such as shift assignments, promotions, and transfers. In

contrast, “benefit seniority” determines benefits such as vacation

time, compensation levels, and pension benefits that depend solely

on that employee's longevity. The unions and the Suau objectors

had no quarrel with the benefit seniority provisions, which did not

adversely affect them. They did object, however, to granting the

new hires retroactive competitive seniority, which they contend

violates the rights of incumbent police and firefighters under

their collective bargaining agreements with the City.

In an order dated August 16, 1994, the district court found

that the United States had established a prima facie case of

discrimination in the City's hiring practices for the police and

fire departments. The court also concluded that the proposed

decree was narrowly tailored to remedy that past discrimination.

Notwithstanding those findings, the court refused to approve the

consent decree. The court explained that affording competitive

seniority benefits to those hired under the settlement agreement

would violate the contractual rights of firefighters and police

6 already working for the City, and it would have an “unfair, adverse

impact” on current police and fire department employees. The

district court urged all of the parties to negotiate a workable

substitute remedy that avoided the problems of the proposed

agreement while allowing for immediate relief. The United States

filed a notice of interlocutory appeal on October 13, 1994, and the

Suau objectors filed a notice of cross-appeal shortly thereafter.

On December 9, 1994, the district court approved a partial

settlement agreement and consent decree that resulted from the

negotiations of all of the parties involved in this case. That

decree, which is not being appealed, is materially identical to the

proposed consent decree that the district court refused to approve

earlier, in all but one respect: it leaves for litigation the

question of whether retroactive competitive seniority should be

imposed. Thus, the sole issue which remains for this appeal is

whether the district court erred in concluding that it should

refuse to enter without a trial the retroactive competitive

seniority provisions of the proposed consent decree, over the

objections of parties who would be adversely affected by those

provisions.

II. STANDARD OF REVIEW

Subject matter jurisdiction over this appeal is a legal issue

which we address in the first instance. See Stovall v. City of

Cocoa, 117 F.3d 1238, 1240 (11th Cir. 1997).

7 Our review of a district court’s refusal to approve a proposed

settlement agreement and enter a consent decree depends upon the

basis of the refusal. See id. The district court has the

responsibility to insure that a consent decree is not “unlawful,

unreasonable, or inequitable.” United States v. City of

Alexandria, 614 F.2d 1358, 1361 (5th Cir. 1980). To the extent

that the district court's refusal to approve the settlement

agreement was based on its conclusion that the proposed agreement

would violate the contractual rights of incumbent employees, this

appeal presents a question of law that we review de novo. See

Stovall, 117 F.3d at 1240; United States v. City of Miami, 664 F.2d

435, 451 n.7 (Former 5th Cir. 1981) (en banc)(Gee, J., concurring

in part and dissenting in part) (“It is difficult to envision an

issue more purely legal than that of whether one written agreement,

the consent decree, conflicts with another written compact, the

existing collective bargaining agreement.”). III. DISCUSSION

A. SUBJECT MATTER JURISDICTION OVER THE APPEAL

The unions and the Suau objectors contend that no

jurisdictional basis exists for this interlocutory appeal.

Normally, only final judgments are appealable. See 28 U.S.C. § 1291. One exception to this rule is 28 U.S.C. § 1292(a)(1), which

permits this Court to review “[i]nterlocutory orders of the

district courts . . . refusing . . . injunctions.” The United

States contends that this appeal falls within that exception.

8 Congress did not intend for the injunction exception to open

the floodgates to piecemeal appeals. The Supreme Court has

repeatedly cautioned that the “exception is a narrow one and is

keyed to the 'need to permit litigants to effectually challenge

interlocutory orders of serious, perhaps irreparable,

consequence.'” Gardner v. Westinghouse Broadcast Co., 437 U.S. 478,

480, 98 S. Ct. 2451, 2453 (1978) (quoting Baltimore Contractors v.

Bodinger, 348 U.S. 176, 181, 75 S. Ct. 249, 252 (1955)).

In Carson v. American Brands, 450 U.S. 79, 84, 101 S. Ct. 993,

996 (1981), the Supreme Court held that an interlocutory order must

meet two requirements to be appealable under 28 U.S.C. §

1292(a)(1). First, if the relief sought is not actually an

injunction, then it must have the practical effect of an

injunction. See Carson, 450 U.S. at 83-84, 101 S. Ct. at 996. Second, for an appeal to be proper under 28 U.S.C. § 1292(a)(1),

the appellant must show that the interlocutory order of the

district court “might have a serious, perhaps irreparable,

consequence, and that the order can be effectually challenged only

by immediate appeal.” Id. at 84, 101 S. Ct. at 997 (internal quotation marks omitted); see also Roberts v. St. Regis Paper Co.,

653 F.2d 166, 170 (5th Cir. Unit B Aug. 1981) (noting that order is

appealable under § 1292(a)(1) only if denial of appealability would

result in irreparable harm).

The United States contends that notwithstanding Carson’s

explicit mention of two prerequisites for jurisdiction, it

effectively establishes a uniform rule that all orders refusing to

9 enter consent decrees in Title VII cases are automatically

appealable under § 1292(a)(1). A close examination of the two

Carson prerequisites and their application to Title VII cases leads

us to conclude that the United States is correct about that.

Whenever a district court refuses to enter a Title VII consent

decree, the plaintiffs can immediately appeal that order under 28

U.S.C. § 1292 (a)(1) instead of waiting until after the district

court has entered a final judgment in the case.

Several considerations convince us of this conclusion. For

example, the Supreme Court has subsequently made a statement

indicating that Carson makes all orders refusing to enter a consent decree in Title VII cases interlocutorily reviewable. In Local No.

93 v. City of Cleveland, 478 U.S. 501, 517, 106 S. Ct. 3063, 3073

(1986), the Court stated that it had held in Carson that “a

District Court’s order denying entry of a consent decree is

appealable under 28 U.S.C. § 1292(a)(1).” Accord City of Miami,

664 F.2d at 442 (Rubin, J., concurring) (“[T]he Supreme Court

recently noted that a court’s refusal to approve a consent decree

in a Title VII case is an appealable order. . . .”). Even though

that statement by the Supreme Court in Local 93 was dictum, it is of considerable persuasive value, especially because it interprets

the Court’s own precedent. See, e.g., Peterson v. BMI

Refractories, 124 F.3d 1386, 1392 n.4 (11th Cir. 1997)(“[D]icta

from the Supreme Court is not something to be lightly cast

aside.”).

10 Another reason for our holding flows directly from analysis of

the two jurisdictional requirements that Carson announced. Every

refusal to enter a Title VII consent decree will satisfy both

Carson requirements for interlocutory jurisdiction. First, such a

denial will always have “the practical effect of refusing an

injunction.” Carson, 450 U.S. at 84, 101 S. Ct. at 996. A consent

decree will always contain injunctive relief because, by

definition, a consent decree obligates the defendant to “stop

alleged illegal activity.” Black's Law Dictionary 410 (6th ed.

1991). For example, the proposed consent decree in this case would

have the effect of an injunction, because it would obligate the

City to hire a total of thirty black police and firefighters and

would prevent the City from using its current written entry-level

exams to fill future openings. An order refusing to enter a

consent decree in a Title VII case, therefore, satisfies the first

requirement for interlocutory jurisdiction under Carson. Second, a district court’s refusal to enter a Title VII

consent decree can be “‘effectually challenged’ only by immediate

appeal” because it “might have a ‘serious, perhaps irreparable,

consequence.’” Id. at 84, 101 S. Ct. at 997. Title VII embodies a

strong preference for voluntary settlement of employment

discrimination cases. See, e.g., Alexander v. Gardner-Denver Co.,

415 U.S. 36, 44, 94 S. Ct. 1011, 1017 (1974) (“Cooperation and

voluntary compliance were selected as the preferred means for

achieving [the goals of Title VII.]”). The Carson Court noted that

because litigation might cause an essential party to withdraw its

11 assent to the decree, denying interlocutory review might destroy

the conditions that permitted compromise in the first place, which

would be in contravention of the strong public policy favoring

voluntary settlement of Title VII cases. See Carson, 450 U.S. at

87-88 & n.13, 101 S. Ct. 998 & n.13.

That the City is not the party most affected by the

competitive seniority provision of the proposed decree complicates

the question of whether the possibility that the City might later

withdraw its consent creates an irreparable injury for the purposes

of Carson. However, we need not decide whether the possibility

that the City might withdraw its consent alone creates an

irreparable injury in this case. The Supreme Court’s opinion in

Carson identifies an additional source of irreparable injury which,

when considered in conjunction with the strong policy in favor of

settlement of Title VII cases, renders an order refusing to enter

a Title VII consent decree interlocutorily appealable. The opinion

indicates that postjudgment review of a refusal to enter a consent

decree raises serious problems even when the parties to the

agreement continue to support the decree. See Carson, 450 U.S. at 88 n.14, 101 S. Ct. at 998 n.14. One such problem is that the court

reviewing a final judgment may be forced to choose between the

relief upon which the parties had agreed and the relief ordered by

the trial court. See id.

The Supreme Court explained in Carson that making that choice

correctly would be difficult, because “delaying appellate review

until after final judgment would adversely affect the court of

12 appeals’ ability fairly to evaluate the propriety of the district

court’s order.” Id. If the trial court ultimately ordered relief

that differed from that originally agreed to by the parties, the

reviewing court might be less likely to view the provisions of the

original proposal as favorably as it might otherwise have.

Deferring review of an order refusing to enter a consent decree in

a Title VII case will always create a risk of irreparable harm

because, even when no risk exists that the parties’ willingness to

compromise will be disrupted, having to go through litigation poses

a risk to the settlement of cases and to a fair evaluation of the

original proposal in any post-trial appeal.

An order refusing to enter a Title VII consent decree,

therefore, will always pose a risk of irreparable harm as Carson envisioned it. Consequently, whenever a district court refuses to

enter a consent decree in a Title VII case, that order is

immediately appealable under 28 U.S.C. § 1292(a)(1). We therefore

have jurisdiction over the government’s appeal in this case.1

B. REFUSAL OF THE DISTRICT COURT TO APPROVE THE CONSENT DECREE

1. A Consent Decree Requires the Consent of All Parties Whose Legal Rights Will Be Affected By the Decree

1 As indicated, our holding in this case is compelled by the reasoning and language in Carson, another Title VII case the decision of which was based in part upon the strong, congressionally indicated preference in favor of settling Title VII cases. See Carson, 450 U.S. at 88 n.14, 101 S. Ct. at 998 n.14 (“In enacting Title VII, Congress expressed a strong preference for encouraging voluntary settlement of employment discrimination claims.”); see also Alexander, 415 U.S. at 44, 94 S. Ct. at 1017 (1974). The question of whether a district court’s order rejecting a proposed settlement agreement in a non-Title VII case is interlocutorily appealable is not before us, and we express no view on it.

13 We turn now to the merits of the appeal. The United States

contends that the objection of the unions and the Suau objectors to

the remedial seniority part of the proposed decree is insufficient

to prevent its entry. It is true that opposition to a proposed

consent decree will not always operate as a bar to it. While a

party “is entitled to present evidence and have its objections

heard at the [fairness] hearings . . ., it does not have the power

to block [the] decree merely by withholding its consent.” See

Local No. 93 v. City of Cleveland , 478 U.S. 501, 529, 106 S. Ct.

3063, 3079 (1986). However, the objection of a party whose rights

or claims would be adversely affected does bar a proposed consent

decree. See id. (“parties who choose to resolve litigation through

settlement may not dispose of the claims of a third party”). Our

holdings in United States v. City of Miami , 664 F.2d 435 (Former

5th Cir. 1981) (en banc), and White v. Alabama, 74 F.3d 1058 (11th

Cir. 1996), make it clear that a consent decree requires the

consent of all parties whose legal rights would be adversely

affected by the decree.

a. The City of Miami Decision Although the en banc decision of the former Fifth Circuit in

City of Miami was released after the circuit split, it is part of

the law that is binding upon subsequent panels in this circuit.

See White, 74 F.3d at 1074 n.50. In the City of Miami case, the en

banc court vacated in relevant part a district court order

approving a consent decree. The decree had provided that when a

minority employee had the greatest seniority in a particular 14 position and was qualified for a promotional opportunity, the city

was required to promote that minority employee unless another

applicant had demonstrably superior qualifications. See City of

Miami, 664 F.2d at 446 (Rubin, J., concurring). That provision of

the decree conflicted with the police officers' collective

bargaining agreement, which guaranteed that promotions would be

made on the basis of civil service examination scores. The police

union (the FOP) objected to that part of the decree, arguing among

other things, “the impropriety of enforcing the decree against the

FOP without a trial between the City and the Attorney General.”

Id. Accepting that argument, the en banc Court held: “A party

potentially prejudiced by a decree has a right to a judicial

determination of the merits of its objections.” Id. at 447.2 It

explained that a “party is prejudiced if the decree would alter its

contractual rights and depart from the governmental neutrality to

racial and sexual differences that is the fundament of the

2 Even though Judge Rubin’s concurring opinion in City of Miami was joined by only five of the twenty-four judges who participated in that decision, we quote from and cite it as the opinion of the Court. The reason we do so is, as the introductory per curiam opinion in that case explains, while there is no majority opinion, Judge Rubin’s opinion is the narrowest basis for the Court’s appellate judgment, and serves as its mandate. See 664 F.2d at 436 (per curiam).

Another opinion, authored by Judge Gee, and joined by a total of 11 judges would have granted even more relief to the objecting police officers and ordered a broader remand on their behalf. See id. Thus, a total of 16 of the 24 judges participating in City of Miami agreed that a trial cannot be dispensed with by a consent decree which would affect the contractual rights of an objecting party.

15 Fourteenth Amendment in order to redress past discrimination.” Id.

The rule is that “[t]hose who seek affirmative remedial goals that

would adversely affect other parties must demonstrate the propriety

of such relief.” Id. Such a demonstration requires a trial on

the merits (or a valid summary judgment, which was not even sought

in this case), and it cannot be accomplished in a consent decree

proceeding if the rights of a nonconsenting third party are

affected. As the City of Miami opinion explained: “parts of the

decree do affect the third party who did not consent to it, and

these parts cannot properly be included in a valid consent decree.”

Id. at 442. Those holdings from City of Miami would seem to dispose of the

matter. However, the United States contends that the requisite

“demonstration” of intentional discrimination need not be made in

a trial of the merits to final judgment, and it is enough if a

court finds that a prima facie case has been established. Even if

we adopted that position we would not apply it in this case,

because the district court did not give the Suau objectors a full

opportunity to contest the existence of a prima facie case. The

Suau objectors were not given permission to intervene until the

date of the fairness hearing. As soon as the court granted their

motion to intervene, they asked for the opportunity to develop and

present evidence of their own, but that request was denied. They

also asked to cross-examine the statistician whose affidavit the

United States proffered to show a prima facie case. The Suau

objectors stated that:

16 if given an opportunity to question Dr. Thompson, then we would be able to establish that her area of expertise is not labor economics and that her, and that she lacks the ability as an expert to offer an opinion as to what the relevant labor market should be for determining that there is an under- representation within the relevant labor market.

The district court denied that request. The requirements of due

process dictate that if the issue of whether a prima facie case

exists is to be decisive, each party should be afforded a full and

fair opportunity to present evidence relevant to that issue and to

contest evidence proffered by any other party. That did not happen

in this case.

In any event, the facts of City of Miami, as well as the

explicit holding of that decision, preclude any holding that a

prima facie case is enough to justify dispensing with an objecting

party’s right to a full adjudication of its position on the merits

in a trial. As to the facts in City of Miami, the United States

and the City entered a stipulation which showed “gross statistical

disparities presented in the workforce” concerning the number of

blacks, Latins, and women compared to white males, and also a

“striking disparity in earnings.” United States v. City of Miami, 614 F.2d 1322, 1332, 1339 (5th Cir. 1980). The panel opinion in

that case noted that the FOP, the party objecting to entry of the

consent decree, did not challenge those statistics. See id. at

1339. Likewise, the en banc opinion observed that while urging

the district court to conduct a “full-blown trial,” the FOP had

“proffered no evidence and did not attempt to controvert in any way

17 the stipulation between the United States and the City.” 664 F.2d

at 438-39. Furthermore, in that case the City admitted the

requisite past discrimination. See id. at 443-44.

As the en banc opinion in City of Miami summarized it: “The

United States and the City stipulated data that supported the

inference of past discrimination, and they agreed to a statement in

the text of the decree that the City had discriminated against

blacks, Latins, and women.” Id. at 444. The panel opinion in that

case explicitly found that the stipulated statistics alone “present

an overwhelming prima facie case of discriminatory employment

practices.” 614 F.2d at 1339. The en banc opinion did not

disagree with that finding. Therefore, there was a prima facie

showing of discrimination in City of Miami. If the existence of a

prima facie case were enough to justify abrogating an objecting

party’s rights via a so-called “consent decree,” City of Miami

would have been decided differently. Because it was not, we are

bound to reject the United States’ position.

Another insurmountable hurdle to the United States’ attempt to

surmount the en banc holding in City of Miami is the explicit language of that decision itself. In complex cases good opinions

often state their holdings with careful specificity near the

beginning and again at the end of the opinion. Judge Rubin’s

opinion in the City of Miami case does that. The first paragraph

of his opinion for the en banc court consists of these three

sentences:

This case requires us to examine the circumstances under which, and the procedure

18 by which, a court may enter a consent decree in a multiparty suit when some, but not all, of the litigants agree to the decree and parts, but not all, of the decree affect the rights of a nonconsenting party. We conclude that a decree disposing of some of the issues between some of the parties may be based on the consent of the parties who are affected by it but that, to the extent the decree affects other parties or other issues, its validity must be tested by the same standards that are applicable in any other adversary proceeding. Most parts of the decree entered by the trial court in this Title VII case pass the requisite muster, and we affirm them; however, because a part of the decree, entered without a trial, affects the rights of an objecting party, we limit its effect as to that party and remand for trial of the complaint insofar as a remedy is sought against that party.

664 F.2d at 436 (emphasis added).

The first sentence of that first paragraph of the City of

Miami opinion states the issue in that case, which is identical to

the issue in this case. The second sentence states the conclusion

of the Court: to the extent a proposed consent decree affects the

rights of nonconsenting parties, “its validity must be tested by

the same standards that are applicable in any other adversary

proceeding.” In “any other adversary proceeding” a nonconsenting

party’s rights cannot be abrogated merely upon a showing of a prima

facie case; that can be done only in a judgment entered following

trial (or summary judgment). In order to remove any doubt, the

third and last sentence of the opening paragraph unambiguously

states that as to the objecting party, the case is “remand[ed] for trial of the complaint insofar as a remedy is sought against that

party.” The opinion says “for trial,” not for any proceeding short

19 of trial. It certainly does not say that the remand was for the

purpose of determining whether a prima facie case could be

established. One already had been. More than a prima facie case

is required by the City of Miami decision. The more that is

required is a trial. The very first paragraph of the opinion could

not have been clearer about that.

Likewise, the concluding three sentences of the City of Miami

opinion, in a section labeled “Mandate,” state:

The case is remanded, in addition, for further proceedings, consistent with this opinion, to determine whether the United States has the right to claim any relief concerning police promotion. If, at trial, the United States can prove that the City has discriminated against black, Spanish-surnamed, or female police officers, or that the City has so discriminated in its employment policy as to prejudice their opportunities for promotion, and that affirmative action in favor of the affected class is appropriate remedial action, the United States may seek such relief, including reimposition of the contents of paragraph 5(c). The FOP shall, of course, be afforded the opportunity either to contend that discrimination, the necessary predicate for relief, has not been proved, or to show that the type of relief embodied in paragraph 5(c) is, in this instance, unnecessary, inadvisable, or unconstitutional.

Id. at 448 (emphasis added). The first sentence remands for

further proceedings consistent with the opinion, and the second

sentence explicitly states that those proceedings are to occur “at

trial.” Both the second and third sentences speak of what the

United States is required to prove at that trial, not what it may

simply suggest with a prima facie case. Thus, the explicit

language of the concluding paragraph, as well as that of the

20 opening paragraph, in the City of Miami opinion precludes

interpreting that decision as permitting an objecting party’s

rights to be dispensed with upon nothing more than a prima facie

showing of discrimination. Proof at trial is required.

b. The White Decision

This Court recently applied and followed the City of Miami

rule in White v. Alabama, 74 F.3d 1058 (11th Cir. 1996), a decision

which vacated a district court's judgment approving and

incorporating a settlement agreement that would have altered the

manner in which Alabama state judges were selected. The district

court, finding that the original plaintiffs had established a prima

facie case that the Voting Rights Act had been violated, entered

what purported to be a “consent decree.” That decree was consented

to by the original plaintiffs, by the State Attorney General, and

by the Department of Justice. See id. at 1073. But two

intervening plaintiffs and an intervening defendant did not consent

to entry of the decree; they objected to it. See id. at 1064-67,

1072-74. Nonetheless, the district court entered the decree

without a trial, treating it as a consent decree. See id. at 1073 n.48.

We were unequivocal in explaining why there could be no

consent decree absent consent of all the parties whose rights would

be affected:

First, the district court’s final judgment is not a consent decree. It is a final judgment, because it disposes of all of the claims and defenses of all of the parties in the case. See 28 U.S.C. § 1291; Andrews v. United States, 373 U.S. 334, 83 S.Ct. 1236, 10

21 L.Ed.2d 383 (1963). But it is not a final consent decree, because not all of the parties consented to its entry. White, the Attorney General, the Department of Justice, and the district court refer to the final judgment as a “consent decree.” That, however, does not make it one.

Id. at 1073 (emphasis added). To ensure no one missed the point,

in the very next paragraph we reiterated that: “In this circuit, a

decree that provides a remedy agreed to some, but not all, of the

parties cannot affect the rights of a dissenting party.” Id. Of

course, we cited for that proposition the City of Miami en banc

decision. See id. The dissenting opinion in this case attempts to perform

reconstructive surgery on White by suggesting that it really does

not mean, as it plainly said, that a consent decree requires the

consent of all the parties whose rights are affected. Instead, the

dissenting opinion contends, a decree entered by consent of some

parties can modify or affect the rights of a dissenting party, so

long as the party getting shafted has not formally pleaded any

claims, i.e., is not a plaintiff or third-party plaintiff.

Neither White, nor City of Miami which it cites, imply that parties who have pleaded claims are the only ones whose consent is

necessary and whose legal rights matter. Indeed, in White one of

the parties whose objection prevented entry of a consent decree was

an intervening defendant who had not pleaded any claim; he just

wanted to maintain the status quo. See 74 F.3d at 1075 n.51. Nor

does the dissenting opinion explain why a nonconsenting plaintiff’s

rights should be given more protection than a nonconsenting

22 defendant’s rights, or any other party’s rights that were asserted

in an objection instead of in a claim.

The dissenting opinion points to footnote 53 of the White

opinion, which discussed Local No. 93 v. City of Cleveland, 478

U.S. 501, 106 S.Ct. 3063 (1986). That discussion does not detract

from the clear holding in White or support the position of the

dissenting opinion. Instead, the discussion clearly recognizes

that in Local No. 93 the Supreme Court acknowledged that “had the

settlement affected the union’s rights, the decree could not have

been entered without its consent.” 74 F.3d at 1075 n.53. TheCity of Miami decision also puts the focus on whether the rights of

objecting parties would be affected by the decree. See City of

Miami, 664 F.2d at 447 (“[t]hose who seek affirmative remedial

goals that would adversely affect other parties must demonstrate

the propriety of such relief”) (emphasis added); id. at 436 (“to

the extent the decree affects other parties”); id. (“because a part

of the decree, entered without a trial, affects the rights of an

objecting party, we...remand for trial....”) (emphasis added). We

follow the explicit holdings of White and City of Miami. Those

holdings bind this Court as well as the district court, and they

forbid entry of a “consent decree” insofar as it adversely affects

the legal rights of an objecting party, whether that party is a

plaintiff or defendant.

c. The Local No. 93 and Franks Decisions

As a subsequent panel, we are bound by the White panel’s interpretation of the Supreme Court’s Local No. 93 decision. See,

23 th e.g., United States v. Hutchinson , 75 F.3d 626, 627 (11 Cir.

1996). That interpretation, which holds that to the degree a

consent decree diminishes a party’s legal rights, it cannot be

entered over that party’s objections, see White, 74 F.3d at 1075

n.53, is inconsistent with the dissenting opinion’s reading of

Local No. 93. However, even if we were writing on a clean slate we

would interpret Local No. 93 the same way White did.

The express language of Local No. 93 refutes the dissenting

opinion’s contention that, under the Supremacy Clause, contractual

rights guaranteed by Florida law cannot prevent entry of a consent

decree. That decision explicitly recognizes that a consent decree

cannot dispose of the contractual rights of objecting parties. The

Local No. 93 Court affirmed entry of the consent decree in that case because “the consent decree does not purport to resolve any

claims the Union might have ... as a matter of contract.” 478 U.S.

at 530, 106 S. Ct. 3079. The union intervenor in Local No. 93 ,

unlike the intervenors in this case, did not assert any legal

rights that would be impinged by the consent decree. See 478 U.S.

at 508-11, 106 S. Ct. at 3067-69. Apparently, no established

collective bargaining rights were affected by the decree, because

the union did not contend that any were.3

3 The dissenting opinion contends that the Local No. 93 union asserted that the decree “would affect the contractual expectations of its members.” The language of Local No. 93, however, does not support that contention. The most that Local No. 93 seems to have alleged is that “promotions should be made on the basis of demonstrated competency.” Local No. 93, 478 U.S. at 507, 106 S. Ct. at 3067. Expectations aside, nothing in the opinion suggests that the union ever asserted that the decree would violate contractual rights. In fact, the Court commented that the union

24 As the Supreme Court pointed out in Local No. 93, the district

court provided the objecting union with several opportunities to

advance specific objections and to develop evidence to substantiate

those objections; the court even informed the union that vague

appeals to fairness could not prevent entry of the decree. See id.

at 528-29, 106 S. Ct. at 3079. Instead of detailing specific

claims as to how the decree would impair the rights of its members,

the union merely protested that “there must be a more equitable,

fair and just way to correct the problems caused by the [City],”

and that it was totally opposed “to the use of racial quotas which

must by their very nature cause serious racial polarization.” Id. at 511, 106 S. Ct. at 3069. As the Supreme Court characterized it,

the union simply “express[ed] its opinion as to the wisdom and

necessity of the proposed consent decree.” Id. That is entirely

unlike City of Miami and this case, where the intervenors have

objected based upon their specific legal rights under Florida law,

rights that the decree would abrogate. See pp. 30-32, below.

Finally, the rule the dissenting opinion would read into Local No. 93 not only cannot be found in the opinion in that case, it

cannot withstand scrutiny either. According to the dissenting

opinion, an objecting party’s existing legal rights can be

sacrificed to the interests of the other parties, without a trial,

so long as the intrusion on those rights does not obligate that

party “to do or not to do anything.” That would mean, for example,

“failed to raise any substantive claims.” Id. at 530, 106 S. Ct. at 3079.

25 that the other parties could agree to use a “consent decree” to cut

the wages of the objecting union members, in violation of their

contractual rights, if the other parties deemed it necessary and

appropriate to do so in order to fund aspects of the remedy put

into place by the decree. Under the rule advocated by the

dissenting opinion, the union members whose wages were being cut

over their vehement objection would not be entitled to bar the

settlement or to insist upon a trial. What would matter is that

they were not being ordered to do anything by the decree. The City

could take care of the paperwork and other affirmative acts

necessary to actually reduce their compensation. Such are the

implications of the dissenting opinion’s interpretation of Local

No. 93, which is an interpretation we are confident never occurred

to the Supreme Court, and is also an interpretation foreclosed by

White.

The dissenting opinion also relies heavily upon Franks v.

Bowman Transportation Co., 424 U.S. 747, 96 S. Ct. 1251 (1976),

which it says “stands for the proposition that a third party cannot

block approval of a consent decree merely because the party will be

‘affected’ by the decree.” See dissenting op. at 11 - 12. The

reason Franks does not and cannot stand for that proposition is that Franks only involved remedy issues arising after a full blown

trial at which the plaintiffs went further than merely showing a

prima facie case and actually proved that the defendant corporation

had engaged in a pattern of racially discriminatory practices. The

word “consent” is not mentioned, not even once in the Franks

26 opinion, because that decision had nothing at all to do with

consent decrees. Nowhere does the dissenting opinion explain how

Franks, which concerned the propriety of make-whole relief

following a finding of discrimination in violation of Title VII,

could possibly apply to this case, where the government conceded

before the district court that no finding of discrimination had

been made.

The dissenting opinion attempts to make more of Local No. 93

and Franks than either will support by combining language from the

Court’s opinions in the two cases as though it were all from the

same decision. See dissenting op. at 13. That is like trying to

produce a unicorn by crossing a mule with a rhinoceros. Local No.

93 is not a consent decree case in which the objecting party

articulated a specific contractual right that the decree would

contravene. Neither is Franks. Those two decisions cannot be

combined to produce what they are not. The issue before us is not

whether or when a third party’s legal rights must give way in order

to remedy a federal constitutional or statutory violation

established in a trial. Instead, the issue is whether based upon

the agreement of some other parties in the lawsuit a court can

abrogate, violate, or impinge upon the legal rights of an objecting

third party where the necessity or propriety of doing so has not

been established in a trial or by summary judgment.

Our difference with the dissenting opinion on this important

issue is evident in terminology. In the dissenting opinion, the

original class of potential claimants is referred to as the

27 “discriminatees” or the “actual victims of discrimination.” That

terminology assumes that a trial would reach that conclusion.

However, at the fairness hearing, the government indicated that it

was seeking only to establish a prima facie case of discrimination,

and that it had no intention of proving its case at that time. The

attorney for the government took the position that: “the district

court does not need to find discrimination. This is not a

litigated judgment.” The district court then indicated that it

would not make a finding of discrimination: “I agree with that.”

The court later added: “the trial judge ought not to try the case

in the settlement hearings.” Nothing in the record supports the

dissenting opinion’s assumption that the potential class of

plaintiffs have been demonstrated to be “discriminatees” or “actual

victims of discrimination.” Of course, if the desired conclusion

is assumed, it is a simple matter to reach that conclusion. For

the same reasons we would not do so in other cases where summary

judgment has not even been sought, we decline to assume there is no

point in having a trial in this case.

We concede that the dissenting opinion’s position, if taken to

its logical conclusion, might be a promising way to ease judicial

workloads. If we can dispense with the consent of the unions and

the intervening employees and resolve this case over their

objections, why should we not dispense with the consent of the City

as well? Why not let the Department of Justice, once it has

demonstrated a prima facie case, enter into a settlement agreement

with itself (and perhaps with the original plaintiff class as

28 well), and have the court enter a “consent” decree to that effect

even if the City objects? If the consent of the intervenors is not

required before their legal rights can be settled away, why should

the consent of the original defendant be required? Fortunately,

the holdings of the City of Miami and White decisions save us from

such possibilities, because those decisions compel the conclusion

that a proposed consent decree is due to be rejected if it would

affect the legal rights of the objecting parties. We turn now to

that question in this case.

2. The Proposed Consent Decree Would Adversely Affect Legal Rights of the Intervenors

In this case, the police and firefighters' collective

bargaining agreements confer legal rights that the proposed consent

decree would affect adversely. The dissenting opinion concludes

that the decree at issue in this case is like the one that the

Court approved in Local No. 93 because both would affect future

promotions. However, that is where any similarity ends. Unlike

Local No. 93, the decree at issue in this case affects a wide range

of contractual rights that existing collective bargaining

agreements clearly guarantee incumbent employees. Examination of

those rights dispels any superficial similarity that may result

from a first glance comparison of Local No. 93 and the present

case.

Several of the rights that the Hialeah collective bargaining

agreements detail accrue strictly according to seniority. For

example, the City retains no authority to decide which firefighters

to call back for mandatory overtime. Article 52, Section 2 of the

29 Local 1102 agreement states that when additional firefighters are

needed on duty and the positions cannot be filled with voluntary

replacements, they “shall be filled via mandatory overtime by the

most junior available employee[s] of the appropriate rank.”

The collective bargaining agreement also confers seniority

rights involving some positions in the Fire Department, such as

those on the hazardous materials team. Article 51, Section 1 of

the agreement provides, “As positions open up on the hazardous

materials team, they shall be filled from among personnel who have

expressed an interest based on seniority in grade.” Because

allocation of such benefits is strictly according to seniority in

rank, a grant of retroactive seniority to some individuals

infringes other employees' accrued seniority rights.

Similarly, the Police Benevolent Association (PBA) bargaining

agreement provides seniority rights relating to promotions.

Article 1 of the PBA agreement defines seniority as “[t]hose rights

which accrue to an employee based on longevity in the department.

. . .” Subsequent provisions describe the rights that seniority

confers upon the police officers. Article 24 of the PBA agreement

specifies that: “Eligible applicants for the promotional

examination for Sergeant shall be entitled to one-fourth (1/4) of

a point for each full year of service as a Hialeah Police Officer.”

The settlement agreement's grant of retroactive seniority to new

hires would curtail the promotional rights of some incumbent

officers, because it would effectively grant the new hires

30 additional points on the promotional exam that they would not

otherwise receive.

In addition, the settlement agreement impinges on other

benefits which, although not determined purely according to

seniority, are worded in such a way that seniority will have a

substantial and often decisive impact. For example, Article 28 of

the PBA agreement, entitled “Seniority Privileges,” states that

once operational needs have been met, “seniority in rank will be

given preference with respect to days off and vacation time.” [R1-

9-At. 3 at 41] The firefighters' agreement contains a similar

provision. Both collective bargaining agreements contain

provisions that allocate other benefits such as shift preference

and transfer requests according to seniority once operational needs

have been met. Those provisions confer rights and benefits upon

union members that the proposed consent decree would undermine or

diminish.

The United States does not dispute that the proposed agreement

would harm the interests of current police and firefighters to some

extent. Counsel for the United States conceded at the fairness

hearings that incumbent employees “may even be slightly diminished

in their rights” by the proposed consent decree, which is akin to

saying that the rights of a pedestrian in a crosswalk may be

slightly diminished by a runaway truck. Notwithstanding its

concession, the United States contends that infringement of

incumbent employee rights does not allow those employees to block

approval of the settlement, because it is “speculative” whether the

31 proposed agreement's grant of retroactive seniority will cause any

incumbent employees to lose a shift or vacation preference or be

called back for mandatory overtime.

That contention cannot survive examination against existing

decisional law. In City of Miami, the Court invalidated parts of

a consent decree altering the City's procedure for promoting police

officers even though it was impossible to determine in advance

which -- or even that -- officers would be affected by the change;

the mere threat of injury to contractual rights was held to be

sufficient. See City of Miami , 664 F.2d at 446 (Rubin, J., concurring).4 As a result, under the law of this Circuit, the

retroactive seniority provision’s threat to the objectors’

competitive seniority benefits prevented entry of the consent

decree. The objectors were not required to prove with certainty

that particular employees would lose contractual benefits. In any

event, it is obvious that the decree in this case would have

adversely affected at least some of the incumbent employees.

The United States also argues that the proposed grant of

retroactive seniority cannot be said to impinge upon the rights of

incumbent employees, because the City retains some discretion in

allocating many of the benefits in the collective bargaining

agreements. There are two major problems with that argument.

First, as discussed above, some of the competitive seniority rights

are not subject to the City’s discretion at all. The opportunity

for firefighters to receive hazardous materials training, and the

4 See supra note 2.

32 right of police officers to receive the benefit of extra points on

their competitive sergeant’s exam for years of service are

contractual rights that accrue with seniority, and the City has

reserved no authority under the collective bargaining agreements to

infringe those rights. That alone is enough to defeat the United

States’ discretion argument.

Second, the discretion argument misses the point anyway.

Seniority rights subject to the City’s exercise of some discretion

in certain circumstances are neither the same as no seniority

rights at all, nor are they the same as seniority rights subject to

additional exceptions. Nothing in either collective bargaining

agreement authorized the City to modify seniority rights across the

board. Cf. People Who Care v. Rockford Bd. of Educ., 961 F.2d

1335, 1337 (7th Cir. 1992) (“When the parties to a decree seek to

enlarge their legal entitlements -- to grant themselves rights and

powers that they could not achieve outside of court -- their

agreement is not enough.”).

Florida law supports the conclusion that the proposed consent

decree would contravene the contractual rights of Hialeah police

and firefighters, because Florida statutory and constitutional law

give public employees a right to bargain collectively. See, e.g., Hillsborough County Governmental Employees Ass'n, Inc. v.

Hillsborough County Aviation Auth., 522 So.2d 358, 363 (Fla. 1988).

Collective bargaining is required by Florida law for important

terms of employment such as shift assignments, promotions, vacation

time, and mandatory overtime. See, e.g., City of Miami, 664 F.2d

33 at 446 (“Under Florida law promotion is a subject for collective

bargaining for public employees.”); City of Miami v. F.O.P. Miami

Lodge 20, 571 So.2d 1309, 1312-13 (Fla. Dist. Ct. App. 1989)

(holding that public sector employers are obligated to engage in

collective bargaining process over broad range of issues, including

“wages, hours, and terms and conditions of employment” as well as

any changes in those terms or conditions), approved, 609 So.2d 31

(Fla. 1992). Altering collectively bargained benefits through non-

collective bargaining mechanisms is contrary to Florida law.

Furthermore, public policy dictates that parties to a labor

agreement either live up to the terms of that agreement or pay for

the opportunity to alter those terms. “[P]arties to a collective-

bargaining agreement must have reasonable assurance that their

contract will be honored.” W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 771, 103 S. Ct. 2177, 2186 (1983). One party to a

collective bargaining agreement cannot use the device of a

nonconsensual consent decree to avoid its obligations, which the

other party negotiated and bargained to obtain. As we have

previously observed in these circumstances: “The Florida cases hold

that, when a subject is encompassed within the terms of an existing

contract, a public employer may not foreclose bargaining on the

subject or unilaterally alter the terms and conditions of

employment.” City of Miami, 664 F.2d at 447. Because a grant of retroactive seniority would alter the

rights and benefits of incumbent employees under the collective

bargaining agreements, approval of that part of the proposed

34 decree over the unions' objections would violate the police and

firefighters' collective bargaining rights under Florida law. If

the City wants to alter the manner in which competitive benefits

are allocated, it must do so at a bargaining table at which the

unions are present. Or, that must be done pursuant to a decree

entered after a trial at which all affected parties have had the

opportunity to participate.

3. If a Title VII Violation is Established at Trial, the District Court Can Consider the Remedy Set Out in the Proposed Decree If a Title VII violation is found after a trial at which the

affected parties are represented, modification of otherwise legally

enforceable seniority rights may be part of a necessary and

appropriate remedy. See United States v. City of Chicago, 978 F.2d

325, 332 (7th Cir. 1992) (“[U]nder some circumstances, federal

courts may require an innocent third party to participate in

remedies for illegal discrimination.”). To the extent necessary

and proper, Florida law will have to yield in that situation. But

modifying seniority rights to remedy a Title VII violation found

after a trial is entirely different from modifying them without a

trial based upon a “consent decree” to which adversely affected

parties have objected. The important point is that an objecting

party is entitled to an adjudication of its rights on the merits

before those rights are infringed or modified by court decree. The

district court was correct in concluding that it lacked the

35 authority to deprive the objecting parties of that entitlement in

this case.5

4. Summary

What happened in this case is that the Department of Justice

and the City of Hialeah crafted a settlement agreement without the

consent or input of the unions or individual police and

firefighters whose contractual rights, recognized and protected

under Florida law, would be affected by the agreement. The

Department refused to permit the police and firefighters to

participate in the negotiations. The resulting settlement

agreement and proposed consent decree would impair important rights

guaranteed to the police officers and firefighters in their

collective bargaining agreements.

At several points in its briefs, the United States cites the

policy favoring negotiation and settlement of Title VII claims in

support of its argument that the district court should have

approved the agreement and decree. The United States also argues

that a consent decree that it negotiates carries a considerable

presumption of validity because the Department of Justice

represents the interests of all citizens. See Williams v. City of New Orleans, 729 F.2d 1554, 1560 (5th Cir. 1984). These arguments

are heavy with irony, given that the Department of Justice

5 Because we conclude that the district court lacked the authority to approve the settlement agreement, we need not consider the government's contention that the district court erred in finding that the retroactive seniority provision should not be approved because it would have an unusual, unfair adverse impact on current employees. See Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 96 S. Ct. 1251 (1976).

36 restricted its “negotiations” to the City, a party with no interest

adverse to the Department’s competitive seniority proposals. If the

Department had been concerned about the interests of all citizens

and had been interested in “negotiation” and “settlement” in the

non-Orwellian sense, it would have attempted to reach an agreement

with all of those whose rights were at stake. Instead, the

Department disregarded the interests and rights of some parties

based upon their races, and it asked a United States district court

to do the same. The district court correctly rejected the

Department of Justice’s request to ram the proposed settlement

agreement down the throats of the unions and individual objectors

without affording them a fair adjudication of their rights.

As Judge Gee recognized in City of Miami, for the district

court to enter a proposed decree in such a situation would

contravene basic principles of fairness:

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

City of Miami, 664 F.2d at 651 (Gee, J., concurring in part and dissenting in part). Just as the en banc court did in City of

Miami, we see the elephant. We will not close our eyes to its

existence. We will not hold that a party’s legally enforceable

37 contractual rights can be discarded without affording that party

the right to litigate the case on the merits.

C. JURISDICTION OVER THE SUAU OBJECTORS' CROSS-APPEAL

In their cross-appeal, the Suau objectors contend that the

district court erred in concluding that the United States had

demonstrated a prima facie case of discrimination. Because we

affirm the district court's refusal to enter the consent decree,

the Suau cross-appeal is moot. See, e.g. , Pacific Ins. Co. v.

General Development Corp., 28 F.3d 1093, 1096 (11th Cir. 1994) (per

curiam) (appeal is moot when it fails to present a controversy with

respect to which the court can provide meaningful relief).

Accordingly, their cross-appeal is due to be dismissed. However,

as we have pointed out, the Suau objectors, at least, were refused

a full and fair opportunity to present their own evidence and to

meaningfully test the statistics upon which the effort to establish

a prima facie case was based. Our dismissal of the cross-appeal on

jurisdictional grounds should not be read to imply that the

question of whether a prima facie case exists has been settled.

IV. CONCLUSION

A district court may not enter parts of a proposed consent

decree that operate to diminish the legal rights of a party who

objects to the decree on that basis. The part of the decree at

issue in this case would diminish the contractual seniority rights

of incumbent Hialeah police officers and firefighters, who objected

38 to it for that reason. Therefore, the district court’s refusal to

enter that part of the decree was proper.

We AFFIRM the district court’s judgment. The Suau objectors’

cross-appeal is DISMISSED AS MOOT.