J. BLAINE ANDERSON, Circuit Judge:
This appeal requires us to review a consent decree negotiated in settlement of a class action suit challenging allegedly discriminatory employment practices in the San Francisco Police Department. Jesse Byrd, a named party plaintiff and class representative, renews the objections to the settlement that he raised in the court below. The district court, 473 F.Supp. 801, rejected his and others' objections and entered judgment. We now affirm the district court's order validating and approving the consent decree.
Most of the pertinent background of this lawsuit can be gleaned from the several published orders (referenced below) issued by the district court at various stages in this lengthy litigation. Rather than further clutter and unnecessarily enlarge the federal reporter system with all the factual details of the case, we will repeat and expand upon only those aspects particularly relevant to the specific objections advanced by Byrd.
The suit was initiated in April, 1973, and was styled as a class action. The named plaintiffs were eleven individuals, including Byrd, and five organizations
The complaint charged defendants with having promulgated a widespread pattern and practice of racial and sexual employment discrimination in hiring, promotion, and job assignments, in violation of 42 U.S.C. § 1981 and § 1983, and sections of the United States and California Constitutions. In addition to specific allegations of discrimination by the named plaintiffs, the complaint set forth a rather forceful statistical demonstration. The statistics reflected striking differences between the racial and sexual composition of the S.F.P.D. and that of the city. These groups appeared to be vastly underrepresented in the
In November, 1973, plaintiffs moved for a preliminary injunction suspending the use of the hiring and promotional written examinations. The district court found plaintiffs' statistical demonstration sufficient to establish a prima facie case of racial discrimination
By similar analysis, the district court ordered further preliminary injunctive relief in 1975. O.F.J., 395 F.Supp. 378 (N.D.Cal.1975). The court found that the 5'6" preselection height requirement for patrol officers had a statistically disproportionate, adverse impact on Asians, Latins and women
Disgruntled by the early results of hiring from the eligibility list generated by the newly designed entry-level examinations, plaintiffs returned to court in January, 1977, seeking to have a minority hiring ratio reinstated, but in the proportion of three-to-one. While disappointed by the initial results, Judge Peckham concluded that the shortcomings were largely attributable to unforeseen budgetary restraints and various other factors that were not likely to recur in the immediate future, thus the request for reimposition of hiring quotas was denied. O.F.J., 20 FEP Cases 1304 (N.D.Cal.1977). However, the district court did extend its previously ordered quota on permanent promotions to the rank of sergeant to cover temporary promotions to that rank. These temporary promotions were necessitated by defendants' failure to devise a non-discriminatory examination to generate eligibility lists for permanent promotions. The sole criteria for making the temporary promotions was seniority. In ordering the quota extended, the court declared:
Id. at 1308. The district court's order, however, was stayed by our court pending appeal.
Plaintiffs invoked the district court's jurisdiction again in January, 1977, seeking preliminary injunctive relief from the examination used for promotions to the assistant inspector rank. In 1973, the district court found plaintiffs' statistical demonstration insufficient to establish a prima facie case of racial discrimination at that rank and preliminary relief was denied. Plaintiffs supported this motion, however, upon the results of a more recently administered examination in which a substantial number of minorities had participated. The district court again found the statistical showing inadequate to establish a prima facie case of discrimination,
As mentioned above, plaintiffs' original claims were brought primarily under 42 U.S.C. § 1981 and § 1983. On January 6, 1977, plaintiffs were permitted to amend their complaint to state claims under Title VII. The amended complaint contained the specific allegations of twenty-five additional, individually named plaintiffs, each of whom had received a "right to sue" letter from the EEOC, as had some of the eleven original plaintiffs, including appellant Byrd. Plaintiffs' amendment came on the heels of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), wherein the Supreme Court held that, in contrast to Title VII standards, Constitution-based claims of racial discrimination cannot rest solely on racially disproportionate impact, but rather, must be premised upon a discriminatory motive or purpose. It should be noted here that each of the above referenced decisions by the district court rested on the recognized disparate impact theory of Title VII, even though plaintiffs' claims were stated under 42 U.S.C. § 1981 and § 1983.
In May, 1977, over four years after the origination of this lawsuit, plaintiffs' motion for class certification under Fed. R. Civ. P. 23(a) and (b)(2) was granted. The district judge observed that two general categories of issues had emerged in the litigation: those arising from the claims of racial discrimination and those stemming from the sex discrimination claims. While noting similarities between the claims of the two groups, the district court thought it advisable to divide them into subclasses and to conduct the adjudication of the respective claims at separate trials. No adversity between subclasses or between the various racial minority groups was perceived, however, that would necessitate representation by separate legal counsel. Accordingly, the action was certified to proceed as a class action under Rule 23(a) and (b)(2) for purposes of injunctive and declaratory relief, but the court expressly deferred ruling upon certification of a class action with respect to plaintiffs' claim for damages until after a determination of liability. Notice to the class was ordered which specifically advised potential class members that upon timely request, they could be excluded from the class.
On June 22, 1977, plaintiffs filed their second and final amended complaint. We will describe the complaint in more detail in part V below. In December, 1977, the United States stepped into the thick of the action by filing a separate complaint against the defendants, alleging a pattern or practice of employment discrimination similar to that charged in the private plaintiffs' amended complaint. The suit was brought pursuant to the provisions of § 701 of Title VII, Civil Rights Act of 1964 as
From June, 1977, through August, 1978, the parties simultaneously prepared for trial and engaged in negotiations in an attempt to settle the litigation. Eventually, a tentative settlement emerged supported by the public and private plaintiffs and counsel for the city, but vigorously opposed by the Police Officers Association (defendant-intervenor). The settlement effort was derailed when a majority of the San Francisco Board of Supervisors refused to endorse it.
In September, 1978, the district court ruled on the public and private plaintiffs' joint motion for partial summary judgment. The motion addressed only the entry-level examinations administered from 1969 through 1972 and the sergeant-level promotional examinations administered in 1971. Based upon the same analysis and evidentiary support underlying its preliminary injunction ordered in 1973, the district court granted the motion for the United States.
Trial of the race discrimination issues began in November, 1978. The trial was recessed after two weeks to permit further settlement negotiations. During this recess, San Francisco suffered the tragic assassinations of its Mayor, George Moscone, and Supervisor, Harvey Milk. The recess was extended and the resulting negotiations produced a second consent decree that was approved by all parties and submitted to the district court on January 25, 1979. Hearings were set for approval of the class notice and for entertaining objections to the consent decree.
Having found the proposed consent decree "of sufficient substance to submit it to the class," the district court ordered that notice of the proposed settlement be given to the class. In May, 1977, the district court had certified a private plaintiff class under Rule 23(b)(2) for purposes of injunctive and declaratory relief only. For purposes of the proposed consent decree, the district court certified the class under Rule 23(b)(2) for injunctive, declaratory and back pay relief, "and under Rule 23(b)(3) for purposes of recovery of compensatory or punitive damages, if any." The class notice (Exhibit A attached hereto) advised the members of the class that they could appear before the court and present on their own behalf or through private counsel any objections to the settlement. The objections had to be made in writing to the clerk of the court by February 28, 1979.
A hearing on the fairness of the proposal and the objections to it was held on March 5, 1979. On March 30, 1979, the district court issued an order setting forth, responding to, and rejecting the objections to the settlement. O.F.J., 473 F.Supp. 801 (N.D. Cal. 1979). The settlement embodied in the
Appellant, Jesse Byrd, is a named plaintiff and class representative, and has been personally involved in nearly every phase of this litigation, including the settlement negotiations. As president of The Officers for Justice in 1973, he was instrumental in the initiation of this lawsuit. Many of the allegations in plaintiffs' complaints were based on an affidavit by Byrd which was incorporated into the complaints by reference. In addition, the plaintiffs filed with the court the sworn statements of Byrd and three other named plaintiffs outlining their testimony regarding intentional discrimination.
Dissatisfied with the terms of the proposed settlement, Byrd retained private counsel and, in accordance with the district court's order, submitted five specific written objections. Byrd contended that approval of the proposed settlement should be withheld because:
Byrd and his counsel appeared at the fairness hearing and, with some variation, voiced these objections.
The class action device, while capable of the fair and efficient adjudication of a large number of claims, is also susceptible to abuse and carries with it certain inherent structural risks. As Judge Fay aptly observed in his special concurrence in Johnson v. General Motors Corp., 598 F.2d 432 (5th Cir. 1979), "Class actions are unique creatures with enormous potential for good and evil." Id. at 439. Consequently, Fed. R. Civ. P. 23 establishes a procedural framework designed to protect against the shortcomings of the class action device.
Class action settlements are no different. Unlike the settlement of most private civil actions, class actions may be settled only with the approval of the district court. Rule 23(e) declares that, "A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs."
Of course, the very essence of a settlement is compromise, "a yielding of absolutes and an abandoning of highest hopes." Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir. 1977); Moore v. City of San Jose, 615 F.2d 1265, 1271 (9th Cir. 1980); Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1169 (5th Cir. 1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979); Mandujano v. Basic Vegetable Products, Inc., 541 F.2d 832, 835 (9th Cir. 1976). The Supreme Court has explained the nature of consent decrees:
United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971). Nevertheless, there exists the risk that the interests of some class members may be sacrificed in the effort to achieve the "greatest good for the greatest number." Mandujano, 541 F.2d at 835. As we have recently observed:
Mendoza, 623 F.2d at 1344; see also Pettway, 576 F.2d at 1169.
As is generally true of the provisions of Rule 23, the protection afforded by subsection (e) is primarily procedural in nature. Thus, the class must be notified of a proposed settlement in a manner that does not systematically leave any group without notice; the notice must indicate that a dissident can object to the settlement and to the definition of the class; each objection must be made a part of the record; those members raising substantial objections must be afforded an opportunity to be heard with the assistance of privately retained counsel if so desired, and a reasoned response by the court on the record; and objections without substance and which are frivolous require only a statement on the record of the reasons for so considering the objection.
Adherence to these procedures facilitates the second aspect of the district court's responsibilities when a class action settlement agreement is submitted for approval. Although Rule 23(e) is silent respecting the standard by which a proposed settlement is to be evaluated, the universally applied standard is whether the settlement is fundamentally fair, adequate and reasonable. In re Corrugated Container Antitrust Litigation, 643 F.2d 195, 207 (5th Cir. 1981); Moore, 615 F.2d at 1271; Pettway, 576 F.2d at 1169; Cotton, 559 F.2d at 1330; Marshall v. Holiday Magic, Inc., 550 F.2d 1173, 1178 (9th Cir. 1977); Grunin, 513 F.2d at 123; Norman, 431 F.2d at 774. The district court's ultimate determination will necessarily involve a balancing of several factors which may include, among others, some or all of the following: the strength of plaintiffs' case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status throughout the trial; the amount offered in settlement; the extent of discovery completed, and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement. Pettway, 576 F.2d 1157; Cotton, 559 F.2d 1326; Marshall, 550 F.2d 1173; Flinn v. FMC Corp., 528 F.2d 1169 (4th Cir. 1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976); City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974). This is by no means an exhaustive list of relevant considerations, nor have we attempted to identify the most significant factors. The relative degree of importance to be attached to any particular factor will depend upon and be dictated by the nature of the claim(s) advanced, the type(s) of relief sought, and the unique facts and circumstances presented by each individual case.
The district court's role in evaluating a proposed settlement must be tailored to fulfill the objectives outlined above. In other words, the court's intrusion upon what is otherwise a private consensual agreement negotiated between the parties to a lawsuit must be limited to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned. Therefore, the settlement or fairness hearing is not to be turned into a trial or rehearsal for trial on the merits. Neither the trial court nor this court is to reach any ultimate conclusions on the contested issues of fact and law which underlie the merits of the dispute, for it is the very uncertainty of outcome in litigation and avoidance of wasteful and expensive litigation that induce consensual settlements. The proposed settlement is not to be judged against a hypothetical or speculative measure of what might have been achieved by the negotiators. Corrugated Container, 643 F.2d at 212; Moore, 615 F.2d at 1271; Cotton, 559 F.2d at 1330; Flinn, 528 F.2d at 1173; United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 849 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976); Grunin, 513 F.2d at 123.
Ultimately, the district court's determination is nothing more than "an amalgam of delicate balancing, gross approximations and rough justice." City of Detroit, 495 F.2d at 468. Finally, it must not be overlooked that voluntary conciliation and settlement are the preferred means of dispute resolution. This is especially true in complex class action litigation, and even more so where the subject matter is employment discrimination. Moore, 615 F.2d at 1271; Pettway, 576 F.2d at 1214; Cotton, 559 F.2d at 1330-31.
Our task on appeal is even more limited. The initial decision to approve or reject a settlement proposal is committed to the sound discretion of the trial judge. Cotton, 559 F.2d at 1330; City of Detroit, 495 F.2d at 454-55; Bryan v. Pittsburgh
528 F.2d at 1173. Of course, such an assessment is nearly assured when all discovery has been completed and the case is ready for trial. Id.
Before addressing Byrd's specific objections, we observe initially that most, if not all, of the standards and considerations just discussed weigh heavily against a conclusion that Judge Peckham acted arbitrarily or abused his discretion by approving this settlement. By the time the district court approved the settlement, this class action had become much more complex than when originally filed. The amended complaints included additional parties and claims for relief. Indeed, the cause had grown into an across-the-board pattern and practice lawsuit challenging a broad range of allegedly discriminatory employment policies and practices.
The case had been aggressively litigated before Judge Peckham for six years, generating a voluminous record, and resulting in several pre-trial hearings and orders, including preliminary injunctions and a partial summary judgment for the United States. Discovery had been completed and trial of the race discrimination issues was underway. The settlement proposal now before us was not hastily arrived at and there is not a shred of evidence in the record suggesting the existence of collusion between the negotiators. The consent decree resulted only after long and careful negotiations in which the United States was a participant. In fact, this proposal was the second one presented to the court. The first proposal failed to receive assent by all parties although it had been modified at the suggestion of the district judge.
Moreover, Judge Peckham carefully observed the procedures discussed above. Byrd's retained counsel voiced the objections at the fairness hearing and Byrd personally participated in that hearing. Only two other groups of objections were presented. A small group of police sergeants opposed the consent decree, taking a position basically antithetical to the interests of the class. O.F.J., supra, 473 F.Supp. at 805-808. The other objector wanted specific relief from the departmental age requirements that could bar successful reapplication by some individuals allegedly discriminated against by past entry-level examinations. Id. at 808. Each objection raised was made a part of the record and accompanied by the district court's reasoned response thereto. Of the potentially thousands affected by the consent decree, only Byrd has appealed.
Finally, we think it is significant, in light of the applicable standard of review on appeal, that none of Byrd's arguments to this court specifically attack the sufficiency of the district court's reasons for approving the settlement over his objections. For this reason alone, we would be hard pressed to find an abuse of discretion. Nevertheless, we proceed to address his contentions.
A. Back Pay
Byrd contends that the amount of immediate, litigation-free back pay provided by the settlement is grossly inadequate. The aggregate monetary relief provided by the
It is well-settled law that a cash settlement amounting to only a fraction of the potential recovery will not per se render the settlement inadequate or unfair. Flinn, 528 F.2d at 1173-74; City of Detroit, 495 F.2d at 455. This is particularly true in cases, such as this, where monetary relief is but one form of the relief requested by the plaintiffs. It is the complete package taken as a whole, rather than the individual component parts, that must be examined for overall fairness. Viewed in proper perspective then, the amount of back pay finally agreed upon is a less significant consideration than Byrd would have us believe. Moreover, it can hardly be maintained that back pay was the predominant remedy sought in this lawsuit. See Cotton, 559 F.2d at 1333. Throughout the lengthy history of this case, the primary concern of the plaintiffs was to halt the allegedly discriminatory practices and to assure the future integration of minorities and women into the S.F.P.D. The consent decree incorporates a variety of provisions to accommodate these concerns. Without admitting any violations of law, and by attaching their approval to the settlement agreement, defendants bound themselves to comply with a broad range of both restrictive and affirmative mandates covering every act, practice, policy, or custom addressed in plaintiffs' complaint. To this was added the grant of back pay, which is substantial, though potentially less than complete in some instances. Undoubtedly, the amount of the individual shares will be less than what some class members feel they deserve but, conversely, more than the defendants feel those individuals are entitled to. This is precisely the stuff from which negotiated settlements are made.
Even if we consider the back pay provisions in isolation, Byrd's contention must fail. Like all his objections, Byrd approaches these provisions as if he were appealing from the award of relief after a fully contested trial on the merits instead of from a judgment approving a settlement of the case. Byrd relies entirely on City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974), wherein the court commented that whenever defendants' liability has been prima facie established, "any party wishing to justify a settlement offer that amounted to only a small fraction of the ultimate possible recovery would appear to have a very substantial burden of proof." Id. at 455. We think it unnecessary to decide whether this language correctly states an appropriate legal standard because, like the objectors in that case, Byrd is unable to demonstrate its applicability. At this stage of the proceedings, that is clearly his burden to carry. Contrary to his assertions, defendants' liability for classwide back pay had not been prima facie established, nor do the district court's pre-trial orders, its order approving the consent decree, and its findings of fact and conclusions of law suggest that "liability should be a certainty." (Appellant's Brief p. 7). Every favorable ruling issued by the district court was arrived at through the application of a Title VII disparate impact theory, which, with two possible exceptions, would have been unavailable to the plaintiff class under current law.
In light of the delay in filing administrative charges, plaintiffs may have been able to utilize the disparate impact theory to challenge the temporary appointment of sergeants on which the district court imposed a one-for-one quota in 1977. Even at the time of its issuance, however, that ruling was stayed by this court, pending appeal. The second exception where the theory may have been available was plaintiffs' attack on the use of an assistant inspector's examination which was enjoined in 1977. However, with regard to that examination, plaintiffs' statistical evidence was insufficient
Shifting the point of analysis, we are also unpersuaded by Byrd's unfounded predictions of much larger awards had the case been fully tried on the merits. There is simply no indication in the record, nor a showing by Byrd on this appeal, that any judgment reached after a full trial would be sufficiently large, when discounted, to reward the class members for their patience. See City of Detroit, 495 F.2d at 467. As the district court observed, any benefits above those provided by the decree would likely be substantially diluted by the delay inherent in acquiring them. O.F.J., supra, 473 F.Supp. at 808. The track record for large class action employment discrimination cases demonstrates that many years may be consumed by trial(s) and appeal(s) before the dust finally settles. See Cotton, 559 F.2d at 1331. This case is exemplary. After six years, trial of only the race discrimination issues had finally begun with the testimony of a single witness. During the remainder of the litigation, and probably an appeal, many of the immediate and tangible benefits accruing from the settlement would be lost.
Finally, we note that only Byrd objected to the amount of back pay provided, thus calling to service the oft-quoted observation found in City of Detroit, 495 F.2d at 462:
We are convinced that the district court properly considered this objection and found it lacking sufficient substance to warrant withholding approval of the settlement proposal.
As applied to Byrd, the back pay provisions of the consent decree were designed to compensate him for the pay differential resulting from his failure to be promoted from patrolman to the rank of sergeant. For this purpose, the consent decree contains a "mitigation clause" which may operate to reduce the amount of back pay received by individuals occupying certain specified positions on the force. The possible reduction is effected by offsetting against the amount of back pay accrued the increment of higher salary paid to those position holders. For example, a patrol officer assigned to the solo motorcycle detail, like Byrd, receives an increment of increased salary for the risks attendant with that duty, which is usually referred to as "hazard pay." The mitigation clause would work to deduct this "hazard pay" from the total amount of back pay accrued as computed in accordance with the "Guidelines for Distribution." (473 F.Supp. at 824-26).
Byrd's challenge to this provision rests upon a mischaracterization of the district court's ruling. The district court did not reason, as Byrd suggests, that because members of the solo motorcycle detail were paid more, they received as much compensation as they would have absent any discrimination. Rather, the district court determined that, in all probability, Byrd would not have received sergeant's pay and hazard pay. The departmental assignment policy is such that it is very unlikely for a sergeant
C. Compensatory Damages
Byrd's next objection to the consent decree is that it provides no monetary compensation to him and others for emotional and physical distress allegedly suffered as a result of the unlawful acts and practices charged in the complaints. First, he argues that the district court's failure to designate the individually named plaintiffs as a subclass allowed their interests to be under represented. Second, he argues that the purported certification of a class under Rule 23(b)(3) for purposes of the consent decree should have permitted him to opt out of the class and independently pursue his damage claims against the defendants. He requests that we either reverse the district court's order approving the consent decree and remand for further negotiations and/or litigation, or that we somehow relieve him from the decree's bar to future litigation so that he may pursue an action for damages against the defendants. The Officers for Justice joins with Byrd in arguing that he should be permitted to seek further relief.
Initially, it must be recognized that we are not presented with a choice between alternative remedies. Neither the district court nor this court is empowered to rewrite the settlement agreed upon by the parties. We may not delete, modify, or substitute certain provisions of the consent decree. Of course, the district court may suggest modifications, but ultimately, it must consider the proposal as a whole and as submitted. Approval must then be given or withheld. Our only alternatives on appeal are to vacate and remand upon a determination that the district court abused its discretion, or to affirm its judgment. In short, the settlement must stand or fall as a whole. Pettway, 576 F.2d at 1172; Cotton, 559 F.2d at 1331-32; Allegheny-Ludlum, 517 F.2d at 850. We turn now to Byrd's arguments.
Byrd's claim that his interests were inadequately represented by reason of the district court's failure to certify the individually named plaintiffs as a subclass is ludicrous. Rule 23(c)(4)(B) provides for the creation of subclasses, but each subclass must independently meet the requirements for the maintenance of a class action. Betts v. Reliable Collection Agency, Ltd., 659 F.2d 1000, 1005 (9th Cir. 1981). A proposed subclass consisting of the individually named plaintiffs is, by definition, not "so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1).
Moreover, Byrd is in no position to impugn this settlement on grounds of inadequate representation. He was represented by his own counsel during the class action settlement hearing and is, therefore, precluded from challenging the adequacy of representation by reason of his own participation in the suit. Dosier v. Miami Valley Broadcasting Corp., 656 F.2d 1295, 1299 (9th Cir. 1981). Class representatives do not bind dissenting class members. A proposed class action settlement is ineffectual until it has received the approval of the district court, and Byrd's interests were adequately represented through his own participation
Although we were not impressed by Byrd's attack on the adequacy of representation, his arguments did raise a question which has caused us some concern. Byrd has maintained that the individually named plaintiffs were the only class members seeking damages for emotional and physical distress.
Byrd's assertion to the contrary rests solely on the language of the second amended complaint. In pertinent part, the prayer for relief in that complaint asks the court "[t]o award to the named Plaintiffs money damages for their loss of wages, and for emotional and physical distress." However, the next paragraph of the prayer reads: "To award to the plaintiff class back pay and other appropriate compensation in addition to an award of punitive damages." With the exception of a request for costs and attorneys' fees, these two paragraphs represent plaintiffs' entire request for monetary relief. Arguably, the request for class relief is broad enough to encompass every form of monetary relief, including damages for emotional and physical distress, that could have been awarded after a finding of liability on the claims set forth in the complaint. It is not significant that the prayer for relief treats the named plaintiffs' requests separately from the requests for the plaintiff class. In a class action suit of this kind where a pattern or practice of discriminatory treatment is alleged, plaintiffs usually attempt to meet their burden of proof by presenting statistical evidence bolstered by the testimony of individual plaintiffs recounting specific instances of discrimination. See Teamsters, supra, 431 U.S. at 336-339, 97 S.Ct. at 1854-1856. It is entirely possible, even common, for the individual witnesses to prove their individual cases of discrimination while failing to establish overall liability to the class. For this reason, the named plaintiffs' prayer for relief is often pleaded separately from the requests for class relief. On the sole basis of the language in the complaint, therefore, it is unclear whether only the named plaintiffs requested compensatory damages for emotional and physical distress.
More important to the analysis, however, stands the fact that there is nothing to differentiate the group of named plaintiffs from the individual class members with respect to the potential recovery of monetary relief for emotional and physical distress. The defendants were charged with having engaged in a widespread pattern and practice
Finally, the provisions in the consent decree that purport
Any differences in injury suffered by the named plaintiffs in comparison to the class members is one of degree. We understand Byrd's dissatisfaction. He has been personally involved in, and a moving force behind, this litigation. His testimony and that of other named plaintiffs was to be used to establish intentional discrimination. He may very well have had stronger claims than most class members, but he joined in bringing this action as a class action and, by so doing, he has disclaimed any right to a preferred position in the settlement.
For purposes of the consent decree, the district court certified a class action under
Again, Byrd's argument fails to account for the difference between a judgment approving the settlement of a class action suit and a judgment entered after a fully litigated trial on the merits. Because class actions vary so widely in their circumstances, the trial judge is vested with broad discretionary control over the conduct of such actions enabling the presiding judge to respond fluidly to the varying needs of particular cases. Mendoza, 623 F.2d at 1344; Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 1309 (9th Cir. 1977). Within the context of class certification, Rule 23(c)(1) specifically provides that the district court's determination on the maintainability of a class action "may be conditional, and may be altered or amended before the decision on the merits." Consequently, before entry of a final judgment on the merits, a district court's order respecting class status is not final or irrevocable, but rather, it is inherently tentative. General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, ___, 102 S.Ct. 2364, 2371, 72 L.Ed.2d 740 (1982); Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n. 11, 98 S.Ct. 2454, 2458 n. 11, 57 L.Ed.2d 351 (1978). For example, we have recently affirmed a district court's decision to decertify a class following the plaintiffs' failure to produce any evidence of classwide discrimination. O'Brien v. Sky Chefs, Inc., 670 F.2d 864, 869 (9th Cir. 1982). Under the circumstances of that case, we reasoned that "[s]ince plaintiffs' failure to produce evidence may have been due to inadequate representation of the class interests rather than to absence of classwide discrimination, decertification avoided any res judicata effect against the class." Id.
Perhaps the main reason for the tentative nature of class status determinations is that they generally involve considerations that are closely tied to the factual and legal issues of the case. Coopers & Lybrand, supra, 437 U.S. at 469, 98 S.Ct. at 2458. As a leading treatise explains:
15 Wright, Miller & Cooper, Federal Practice and Procedure § 3911, p. 485 n. 45 (1976). This relationship between the certification determination and the merits of the case is further attenuated within the context of the settlement evaluation process by the limits there placed on the district court's consideration of the underlying merits. Necessarily then, certification issues raised by class action litigation that is resolved short of a decision on the merits must be viewed in a different light.
In this case, we have serious doubts, but no way of knowing, whether all aspects of this cause could have been litigated to a conclusion entirely within the class action mode. We are not, however, faced with that situation. For purposes of the consent decree, the district court certified the case as a class action under Rule 23(b)(2) and (b)(3), but no opportunity to opt out was then provided. A literal reading of Fed. R. Civ. P. 23(c)(2)(A) would suggest that the class members should have been allowed that option. Given the circumstances and posture of this case, however, we do not believe that blind adherence to such technical literalism is compelled. Rather, we think it is more appropriate to consider, consistent with the design of Rule 23, whether Byrd's due process rights were observed. We think they were.
Also included in the notice to the class was an opt-out provision which reads:
Essentially, the procedure adopted by the district court was to bifurcate the trial into a liability phase and a monetary remedy phase. In the liability phase, all of the claims for relief stated in plaintiffs' complaint were to be litigated. During that phase, however, the action would only have been certified under Rule 23(b)(2), and only for declaratory and injunctive relief, if any. The trial judge then could have certified a class for monetary relief, including damages, after his determination of defendants' liability. We do not necessarily approve this procedure, but if the district judge erred by employing it, his error favored the plaintiff class. Had the representative plaintiffs failed to establish any classwide liability for monetary relief, the district judge may not have certified a class, thus arguably leaving class members free to pursue their individual claims for monetary relief.
Given the breadth and nature of the claims asserted, the class action allegations in plaintiffs' complaint, and the procedures adopted by the district court, it appears clear that this case was in essence a Rule 23(b)(3) class action. The class notice precisely parallels the requirements of Rule 23(c)(2), which is expressly applicable only to class actions maintained under Rule 23(b)(3). All named plaintiffs and class
The arguments advanced by The Officers for Justice in support of Byrd's contention are more sophisticated, but no more persuasive. They argue that the "claims" for compensatory and punitive damages were never certified until the district court ordered class action certification under Rule 23(b)(3) for purposes of the consent decree.
This argument is disposed of by what we have already said. There is absolutely no support in this record for the proposition that only certain claims were to be litigated in the class action originally certified under Rule 23(b)(2). All of plaintiffs' claims were to be litigated in the liability phase of the trial, not simply those focusing on the hiring and promotional practices. Much is made of the class description which defines the class in terms of the various examinations challenged in the complaint. We fail to see, however, what further specification in the definition of the class was needed. The damage claims cut across the entire spectrum of the class as defined. Moreover, because individual damages were sought, it is conceded that Rule 23(b)(3) certification would have been required. We find it entirely reasonable, therefore, that the class was described in terms of the hiring and promotional practices challenged. It was those practices that presented the questions of law or fact common to the members of the class that predominated over any questions affecting only individual members, and which could have made the class action superior to other available methods for the fair and efficient adjudication of the controversy. See Fed. R. Civ. P. 23(b)(3).
D. Recruiting, Training and Promoting
Byrd's final contention
Byrd has failed to demonstrate an abuse of discretion by the district judge in approving this consent decree. Accordingly, the judgment of the district court is
NOTICE OF PENDENCY OF CLASS ACTION AND NOTICE OF PROPOSED SETTLEMENT THEREOF
There are two lawsuits presently pending in the United States District Court for the Northern District of California. The first is entitled Officers for Justice, et al. v. Civil Service Commission, et al., No. C-73-0657 RFP. The second is entitled United States v. City and County of San Francisco, et al., No. C-77-2884 RFP. The cases have been consolidated for purposes of trial or settlement.
These two lawsuits are based upon allegations by both the private and governmental plaintiffs that the City and County of San Francisco discriminated against racial and ethnic minority group members, as well as women, with respect to entry into and promotion within the San Francisco Police Department. The private plaintiffs also have alleged that the terms and conditions of employment within the San Francisco Police Department have been racially and sexually discriminatory. Both the City and County of San Francisco and the intervenor San Francisco Police Officers Association have denied the truth of the allegations made by the plaintiffs in both suits.
The lawsuit entitled Officers for Justice, et al. v. Civil Service Commission, et al. is a class action on behalf of racial and ethnic minority persons, as well as women. The Officers for Justice lawsuit has been certified as an appropriate class action. Subclass (a) consists of all Blacks, Hispanics, and Asians (including Chinese, Filipinos, Japanese, Koreans, and other Pacific Area people) who:
Subclass (b) consists of all women who:
A settlement of the above-referenced lawsuits is now being considered. The settlement contains specific goals and timetables for the hiring of significant numbers of racial and ethnic minorities and women. The long-term goals shall be to raise the minority representation to 45 percent of the sworn personnel of the San Francisco Police Department. For the next 10 years or until the long-term goals are reached, the City shall seek to achieve goals of filling at least 50 percent of available vacancies with qualified minority applicants, and 20 percent with women.
The settlement also enhances the opportunities for promotion of minorities and women within the Police Department due to the adoption of goals and timetables as well as modifications made in the selection procedures. The City shall make offers of promotion to the ranks of sergeant or assistant inspector to all eligible officers presently on the respective 1976 informational rosters of candidates. Thereafter, the City shall seek to achieve promotional goals for women and minorities proportional to their representation in the qualified applicant pools. The size of the sworn police force shall be increased to 1971 by August 1, 1981, and present annual rates of promotion to the ranks of sergeant, assistant inspector, lieutenant, and captain shall be maintained.
The settlement also provides monetary compensation in the form of back pay to certain persons (up to $3720 apiece) and appropriate sums to facilitate the City's carrying out its hiring and promotion goals and obligations, to be used primarily for recruitment, testing, training, and professional upgrading and leadership opportunities for minorities and women. Fees for the private plaintiffs attorneys will be set by the Court and paid by the City, but they will not affect or be deducted from the compensation amounts described above.
The Court will appoint persons to monitor the implementation of these goals and obligations and to administer the back pay awards.
A copy of the proposed Consent Decree, which is the most complete statement of the settlement, is available for examination by persons who may be members of the plaintiff
If you are a member of one of the groups described above, you may be a member of the plaintiff class in the Officers for Justice suit. As a possible class member, you have two possible courses of action available:
1. You may decide to take no action. If you choose to do this, you will be included in the class. If the Court approves the proposed settlement, you will not be able to bring any further action against the City and County of San Francisco based on past acts of racial, ethnic or sexual discrimination as raised in the complaint filed by the private plaintiffs herein. As a class member, you may enjoy the prospective benefits of the Consent Decree, including the monetary benefits.
2. You may come forward as a member of the class and object to this settlement if you believe that it is not fair to the class. You may present the objections yourself or through an attorney of your own choosing in the manner explained below.
All objections must be made in writing and sent by first class mail and received by the Clerk not later than February 28, 1979. The envelope should be addressed as follows:
It is very important that the envelope and the document inside contain the name and number of the case.
(Complaint, p. 6-7.) The terms "Latins" and "Asians" were further defined.
This modified proposal, however, was rejected by the San Francisco Board of Supervisors.
Moreover, we have looked into these arguments and find that they lack support in the record, lack foundation in the law, or are answered by our decision on the issues properly presented in this appeal.