United States v. City of New Orleans

32 F. Supp. 3d 740, 2014 WL 3706621
CourtDistrict Court, E.D. Louisiana
DecidedJuly 25, 2014
DocketCivil Action No. 12-1924
StatusPublished

This text of 32 F. Supp. 3d 740 (United States v. City of New Orleans) is published on Counsel Stack Legal Research, covering District Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. City of New Orleans, 32 F. Supp. 3d 740, 2014 WL 3706621 (E.D. La. 2014).

Opinion

ORDER & REASONS

SUSIE MORGAN, District Judge.

The Court has pending before it a motion filed by the City of New Orleans to amend the Consent Decree.1 The Court has considered the motion, the record, the applicable law, the Department of Justice’s statement of no opposition,2 the amicus brief filed by the Fraternal Order of Police,3 and the City’s response to the amicus brief,4 and now enters this Order and Reasons.

BACKGROUND

The history of this case has been set out in greater detail in previous orders. Briefly, after an extensive investigation of the New Orleans Police Department conducted at the request of the City, the DOJ issued a comprehensive report dated March 16, 2011.5 In particular, the DOJ’s investigation revealed that there “are few aspects of NOPD more broadly troubling than its Paid Detail6 system” and that this system “was a significant contributing factor to both the perception and the reality of NOPD as a dysfunctional organization.”7

On January 11, 2013, the Court approved a Consent Decree between the City and the United States.8 On September 27, 2013, the United States Court of Appeals for the Fifth Circuit affirmed entry of the Consent Decree. United States v. City of New Orleans, 731 F.3d 434 (5th Cir.2013). As relevant to this motion, the Consent Decree mandated reforms of secondary law enforcement employment by NOPD officers “to ensure that officers’ and other NOPD employees’ off-duty secondary employment does not compromise or interfere with the integrity and effectiveness of NOPD employees’ primary work as sworn police officers serving the entire New Orleans Community.”9 In particular, pursuant to the Consent Decree the City was obligated to establish a Secondary Employment Coordinating Office with “sole authority to arrange, coordinate, arrange fully-auditable payment, and perform all other administrative functions related to NOPD employees’ off-duty secondary law enforcement employment (historically referred to as paid details).”10 The Consent Decree also provided that “[a] schedule of fees will be established by the City to offset costs associated with the coordination and required support provided through the Coordinating Office to take into account costs, including but not limit[742]*742ed to, administrative fees, hourly wage rates, and equipment usages.”11

To comply with the Consent Decree, the City, through the City Council and the Mayor, passed a series of ordinances establishing the Office of Police Secondary Employment (“OPSE”) and setting hourly rates and administrative fees for secondary employment. See New Orleans Ordinances 25428 M.C.S. 90-121, 90-122; 25429 M.C.S. 70-415.244-70-70^115.246; Ordinance Cal. Nos. 29,656, 29,657. As relevant here, Ordinance 25428 adopted on August 8, 2013 amended Section 90-121 of the New Orleans Municipal Code to establish the fee structure for secondary employment, setting a standard hourly rate, an hourly rate for holiday jobs and days of high officer demand, and an administrative fee for all secondary employment.12

OPSE has now been operating since August 2013 and has gradually brought more secondary employment positions under its aegis. It has met with an encouraging and increasing level of success and acceptance. The City now argues that the standard and holiday/high demand rates and the administrative fee presently set by Municipal Code Section 90-121 do not adequately address existing conditions, do not provide sufficient flexibility, and, in fact, are hindering OPSE’s ability to accomplish the purposes of the Consent Decree. The City moves to amend the Consent Decree.

LAW & ANALYSIS

A consent decree is a judgment, and may be modified for any reason set forth in Federal Rule of Civil Procedure 60(b), including when “applying it prospectively is no longer equitable” and for “any other reason that justifies relief.” See Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 378, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992). “District courts must take a flexible approach to motions to modify consent decrees and motions to modify or vacate institutional reform decrees.” League of United Latin American Citizens, District 19 v. City of Boerne, 659 F.3d 421, 437 (5th Cir.2011) {“LULAC”) (citation omitted). “Flexibility is ‘often essential to achieving the goals of reform litigation.’ ” Id. (quoting Rufo, 502 U.S. at 381, 112 S.Ct. 748). The court has inherent equitable power to modify its own decrees, including consent decrees, to accomplish the intended result. See LULAC, 659 F.3d at 436.

The Court employs a two-step test to decide whether a consent decree should be amended. LULAC, 659 F.3d at 436. First, the “party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree.” Rufo, 502 U.S. at 383, 112 S.Ct. 748. This can be either a change in facts or a change in the law. See id. at 384, 112 S.Ct. 748. For example, “Modification of a consent decree may be warranted when changed factual conditions make compliance with the decree substantially more onerous,” “when a decree proves to be unworkable because of unforeseen obstacles,” or “when enforcement of the decree without modification would be detrimental to the public interest.” Id. Modification may be warranted even without any factual change “other than recognition of the fact that the initial remedy ha[s] failed.” [743]*743LULAC, 659 F.3d at 438. Thus, in United States v. United Shoe Machinery Corp., the Supreme Court held that amendment of a consent decree can be justified “where there were no factual or legal changes other than recognition of the fact that the initial remedy had failed.” See LULAC, 659 F.3d at 438 (citing United Shoe, 391 U.S. 244, 252, 88 S.Ct. 1496, 20 L.Ed.2d 562 (1968)). And “Rufo cited United Shoe positively to support the proposition that courts should apply a flexible approach when deciding modification requests.” See id. (citing Rufo, 502 U.S. at 379, 112 S.Ct. 748). The Fifth Circuit and many other courts have applied this precedent to affirm that “the court must remain continually willing to modify the order to ensure that it accomplishes its intended result,” Police Ass’n of New Orleans ex rel. Cannatella v. New Orleans, 100 F.3d 1159, 1168 (5th Cir.1996) and that “changed circumstances and failure to achieve the decree’s aims both may warrant decree modification,” LULAC, 659 F.3d at 438 n. 20 (citing Doe Sr. 1-13 v. Bush, 261 F.3d 1037, 1063-64 (11th Cir.2001)).

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Related

United States v. United Shoe MacHinery Corp.
391 U.S. 244 (Supreme Court, 1968)
Rufo v. Inmates of Suffolk County Jail
502 U.S. 367 (Supreme Court, 1992)
United States v. City of New Orleans
731 F.3d 434 (Fifth Circuit, 2013)
United States v. City of New Orleans
947 F. Supp. 2d 601 (E.D. Louisiana, 2013)

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Bluebook (online)
32 F. Supp. 3d 740, 2014 WL 3706621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-city-of-new-orleans-laed-2014.