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HAMMON v. KELLY

August 20, 1993

MARVIN K. HAMMON, et al., Plaintiffs,
v.
SHARON PRATT KELLY, et al., Defendants.


RICHEY


The opinion of the court was delivered by: CHARLES R. RICHEY

OPINION OF CHARLES R. RICHEY UNITED STATES DISTRICT JUDGE

On August 12, 1993, counsel representing the Byrne Plaintiffs in the above-captioned consolidated action filed a Motion to Enforce the Settlement Decree. The Byrne Plaintiffs seek to prevent the District of Columbia from demoting approximately 133 sergeants, lieutenants, and captains of the District of Columbia Fire Department ("Department"). The demotions are allegedly inconsistent with the settlement agreement and consent decree entered into by the District, and approved by the Court on November 6, 1990. A similar motion had been filed by the Byrne Plaintiffs on July 9, 1993, but the earlier motion had been withdrawn as moot based upon certain actions taken by the District of Columbia Council. After the District reinstated the planned demotions, the Byrne Plaintiffs filed the instant motion. Upon consideration of the Byrne Plaintiffs' Motion, the oppositions filed thereto, the long and contentious history of this case, the applicable law, and the entire record herein, the Court must grant the Byrne Plaintiffs' Motion. The District's current efforts to demote individuals who were promoted pursuant to the consent decree and settlement agreement are inconsistent therewith and constitute a violation of the terms of the consent decree and settlement agreement signed by the parties. *fn1"

 I. BACKGROUND

 The history of this case is a long and unhappy one, filled with incidents of friction and ill will between the parties. The Court of Appeals concurs, referring to the conduct of this suit as "a long, tortuous run of litigation." Hammon v. Kelly, 299 U.S. App. D.C. 4, 980 F.2d 785, 786 (D.C. Cir. 1992) (per curiam). A review of the history is necessary, however, to understand the circumstances surrounding the 1990 settlement agreement and consent decree. The suit is a class action which began with the filing of Hammon v. Barry, Civ. Action No. 84-903, by a group of African-American firefighters on March 22, 1984, over nine years ago, seeking to enforce an order of the District of Columbia Office of Human Rights instructing the District of Columbia Fire Department ("the Department") to, inter alia, adopt an affirmative action plan. The implementation of this plan was challenged on March 8, 1985, by a group of white firefighters and their union in Byrne v. Coleman, Civ. Action No. 85-0872. The plan was also challenged by the United States in United States v. District of Columbia, Civ. Action No. 85-797. The cases were consolidated by the District Court in 1985.

 From 1985 to 1990, both the District Court and the Court of Appeals used an inordinate amount of judicial resources to resolve the merits of the dispute. In 1985, the District Court held that the promotional procedures in the affirmative action plan were unlawful, but that the hiring procedures were lawful. Hammon v. Barry, 606 F. Supp. 1082 (D.D.C. 1985). The Court of Appeals reviewed the hiring portion of the affirmative action plan on appeal, and reversed this Court's decision only after substantial consideration. Hammon v. Barry, 259 U.S. App. D.C. 50, 813 F.2d 412 (D.C. Cir. 1987), reh'g denied, 264 U.S. App. D.C. 1, 826 F.2d 73 (D.C. Cir. 1987), reh'g en banc granted, 266 U.S. App. D.C. 117, 833 F.2d 367 (D.C. Cir. 1987) (per curiam), order granting rehearing en banc vacated, 268 U.S. App. D.C. 304, 841 F.2d 426 (D.C. Cir. 1988) (per curiam), cert. denied, 486 U.S. 1036 (1988).

 In 1988, after remand by the Court of Appeals, the District Court endeavored to resolve the remaining issues in the case. In 1990, all of the parties agreed to refer the case to a Special Master for settlement. The Special Master, Professor Stephen A. Saltzburg, then engaged in a concentrated effort along with Counsel and the Court in an attempt to find some method to resolve the case in a manner acceptable to all of the parties.

 A settlement agreement was signed by Counsel for all the parties on August 20, 1990, and it provided, inter alia, for a fund of $ 3.5 million to be distributed to members of the Hammon class. Moreover, and more importantly for purposes of the instant motion, the settlement agreement set forth a method for future promotions in the Department. At the time the settlement agreement was signed, no promotions had been made since the lawsuit began in 1984, a period of over six years. The agreement contained a list of individuals who would fill all vacancies as of March 1, 1989. The agreement also provided for two promotional examinations to fill vacancies arising during the periods March 1, 1989-June 1, 1991, and June 2, 1991-June 1, 1993. A copy of the agreement appears in Hammon v. Barry, 752 F. Supp. 1087 (D.D.C. 1990), at pages 1102-07. The agreement was incorporated into a consent decree that was signed by counsel for the District and for the Byrne Plaintiffs and approved by the undersigned Judge after a fairness hearing on November 6, 1990. See Hammon v. Barry, 752 F. Supp. 1087 (D.D.C. 1990).

 Unfortunately, the settlement agreement and consent decree did not end the disputes in this case. Some of the firefighters, whose claims the District Court had rejected, filed an appeal of the Court's Decree and Order; in 1991, the Court of Appeals for the District of Columbia Circuit summarily affirmed the Decree and Order of this Court. Hammon v. Dixon, 292 U.S. App. D.C. 84, 946 F.2d 1564 (D.C. Cir. 1991), cert. denied, 120 L. Ed. 2d 871, 112 S. Ct. 2994 (1992). Further challenges to this Court's Orders have been rejected by the Court of Appeals. See In re Marvin K. Hammon, et al., 1992 WL 34160 (D.C. Cir. Feb. 14, 1992), reconsideration denied, No. 92-5036 (D.C. Cir. Apr. 8, 1992); Hammon v. Kelly, 299 U.S. App. D.C. 4, 980 F.2d 785 (D.C. Cir. 1992) (per curiam). Despite these delays, the promotional tests were administered by the District and promotions were made in accordance with the terms of the settlement agreement and consent decree. *fn2"

 The instant dispute arose initially on July 9, 1993, when counsel for the Byrne Plaintiffs sought to stay an impending set of demotions within the Fire Department. The demotions were scheduled to take effect on August 6, 1993, as part of an effort to cut the District budget. On July 22, 1993, the parties informed the Court that the District of Columbia Council had passed a budget without the anticipated demotions, and counsel filed a Stipulation and Withdrawal of the Byrne Plaintiffs' motion on the grounds that actions taken by the District of Columbia Council rendered the Motion moot.

 On August 9, 1993, Mayor Sharon Pratt Kelly announced that the demotions would go forward, notwithstanding the action of the District of Columbia Council, and that the demotions would take place on August 20, 1993. The scheduled demotions will result in the demotion by one or more ranks of 45 of the 69 individuals who were promoted by virtue of the second promotional examination, 104 of the 224 individuals who were promoted by virtue of the first promotional examination, and at least 34 of the individuals named in the settlement agreement who received promotions to fill vacancies arising prior to March 1, 1989. The Byrne Plaintiffs filed a new Motion to Enforce the Settlement Decree on August 12, 1993, claiming that the Mayor's actions violate the settlement agreement and consent decree.

 II. BECAUSE THE PROMOTIONS OUTLINED IN THE SETTLEMENT AGREEMENT AND CONSENT DECREE WOULD BE RENDERED MEANINGLESS BY THE IMMEDIATE DEMOTIONS PLANNED BY THE DISTRICT. THE DISTRICT MAY NOT ENACT SUCH MEASURES FOR A REASONABLE TIME. WHICH THE COURT FINDS TO BE SIX YEARS FROM THE DATE OF THE COURT'S ADOPTION OF THE CONSENT DECREE.

 Before examining the merits of the Byrne Plaintiffs' Motion, the Court wishes to make clear the limited scope of its review. The Court is not evaluating the District's budgetary process, nor is it passing judgment on the wisdom of firing and demoting members of the Department. Finally, the Court is not rendering its decision based on the likely effect of the planned actions and whether the actions will actually result in the savings projected by the District government. The only question properly before the Court is whether the District's actions are inconsistent with the obligations assumed by the District through the settlement agreement and consent decree signed by counsel for the District in 1990.

 The Court cannot accept the District's argument that the decree was "implemented" the instant the promised promotions were made. Under the District's theory, the District would be free to demote the promoted firefighters at any time after the promotions were "implemented," essentially rendering the consent decree a nullity, and that the Court would be powerless to review such action. The Court's authority to oversee the implementation of the consent decree must at ...


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