MYRON H. THOMPSON, District Judge.
These two lawsuits, Reynolds v. Alabama Dep't of Transp., civil action no. 85-T-665-N, and United States v. Flowers, civil action no. 2709-N (previously styled United States v. Frazer, but still commonly known today as `Frazer' or the `Frazer litigation'), are again before the court on the issue of the reach of Frazer's `no-bypass rule.' The specific questions, presented in the Adams intervenors' renewed motion for modification or clarification, filed June 29, 1998,
Paragraph 3 of § II of the 1970 injunction in Frazer provides as follows:
United States v. Frazer, 317 F.Supp. 1079, 1091 (M.D.Ala.1970). This provision, which embodies what is now called the no-bypass rule, prohibits the Alabama Department of Transportation from bypassing a higher-ranked African-American applicant in favor of a lower-ranked white applicant on a certificate of eligibles. The rule was imposed in response to evidence that the State of Alabama was unabashedly refusing to hire and promote African Americans to non-menial positions in state government because of their race.
Article VII, ¶ 5 of consent decree I in Reynolds provides as follows:
Reynolds v. Alabama Dep't of Transp., 1994 WL 899259, *13 (M.D.Ala. Mar. 16, 1994).
Since entry of consent decree I in 1994, defendant Alabama State Personnel Department has implemented a practice of banding test scores for some positions, that is, grouping scores together in bands selected to encompass scores which are statistically insignificantly different, i.e., the scores are statistically tied. Absent some method of breaking ties, a certificate of eligibles for a position that includes banded scores would contain all applicants without in any way ranking those within the same band.
Pursuant to ¶ 5 of Article VII, the Personnel Department developed a procedure for breaking ties by computerized randomization. The department certified all applicants within a band or with tied scores to the Transportation Department in rank order based on the applicants' random rankings assigned by computer. The Personnel Department has applied the Frazer no-bypass rule to applicants who have been randomly ranked in this way.
By order entered on April 24, 1998,
To the extent that the Adams intervenors are requesting that the court interpret the reach of the 1970 Frazer injunction, they lack standing to make the request. The Adams intervenors (who are, for the most part, white employees of the transportation department) were allowed to intervene in the Reynolds litigation
First, the 1970 Frazer injunction "simply do[es] not address equally-ranked applicants." Reynolds v. Alabama Department of Transportation, 1998 WL 1748544 at *3 (M.D.Ala. April 24, 1998).
To be sure, it could be argued that, because the 1970 injunction does not explicitly limit the no-bypass rule's application to eligibles who are higher ranked based on any particular ranking method, the rule applies regardless of the method used to rank eligibles. However, the court does not believe that such an interpretation was intended in the 1970 injunction. The no-bypass rule was intended to prevent the selection of white applicants when there was a black applicant on the eligibility list who appeared to be the better choice. Nothing in the language or structure of the injunction indicates that the court contemplated that rankings on an eligibility list would be wholly divorced from some assessment of the applicants' qualifications or suitability of the position for which they were certified.
The findings of fact reached in the support of the 1970 injunction support the conclusion that the no-bypass rule does not apply to random ranking of applicants. For example, the court stated:
Second, it cannot be overlooked that all parties to the Frazer litigation agree with this understanding of the reach of the no-bypass rule. Some weight must be given to this fact as well.
To the extent the Adams intervenors contend that ¶ 5 of Article VII of consent decree I in Reynolds does not authorize or require the application of the no-bypass rule to random ranking of applicants and that, if it did, it would be unconstitutional race-conscience relief, they have standing.
The Reynolds plaintiffs assert that one of the basic purposes served by ¶ 5 of Article VII was "to end the practice of avoiding the Frazer no-bypass rule by manipulating examination scores to proliferate ties on certificates of eligibles that are not subject to such rule." Plaintiff's Resp. to Adams Intervenors' Renewed Mot. for Modification and/or Clarification at 3 [hereafter Plaintiff's Resp.].
However, because there is simply no language in consent decree I that addresses random ranking of applicants, this argument by the Reynolds plaintiffs is essentially foreclosed by recent opinions of the Eleventh Circuit Court of Appeals in this case. In the absence of express language, according to the Eleventh Circuit, this district court "ha[s] no basis in law for rewriting the contract," that is, the consent decree. Reynolds v. Roberts, 207 F.3d 1288, 1301 (11th Cir.2000). "Longstanding precedent evidences a strong public policy against judicial re-writing of consent decrees. `[A] district court may not impose obligations on a party that are not unambiguously mandated by the decree itself.' King v. Allied Vision, Ltd., 65 F.3d 1051, 1058 (2nd Cir.1995)." Reynolds v. Roberts, 202 F.3d 1303, 1312 (11th Cir.2000). "Consent decrees are contracts, and we can construe them using the normal tools for interpreting contracts.... Where they are unambiguous, the court must uphold
The conclusion that the no-bypass rule does not apply to randomized scores under either in the 1970 Frazer injunction or consent decree I does not necessarily mean that there is no remedy. Language from the April 24, 1998, order of this court applies, with some modification, here as well:
Reynolds, 1998 WL 1748544 at *4.
Accordingly, it is ORDERED that the Adams intervenors' renewed motion for modification or clarification, filed June 29, 1998 (Doc. no. 2902), and amended on August 17, 1998 (Doc. no. 3107), is granted to the extent that neither the express language in the Frazer injunctions nor that in consent decree I requires or authorizes application of the no-bypass rule to circumstances in which an African-American applicant is ranked higher than a white applicant on a certificate of eligibles due to random ranking of applicants.