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HAMMON v. KELLY

December 13, 1993

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



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

 On September 1, 1993, the Defendants in the above-captioned case filed a Motion for Reconsideration of the Court's August 20, 1993 Order. In an effort to address this motion, the Court held a hearing on September 23, 1993. At that time, the parties were in agreement that the matter should be referred to Professor Stephen A. Saltzburg who has been serving as the Special Master in this case.

 Having reviewed the Special Master's October 20, 1993 Report and Recommendations Regarding Demotions, the Byrne Plaintiffs' Statement of Position Respecting Special Master's October 20, 1993 Report and Recommendations, the Defendants' Statement of Position Respecting the Special Master's October 20, 1993 Report and Recommendations, the Byrne Plaintiffs' Response to Defendants' Statement of Position Respecting the Special Master's October 20, 1993 Report and Recommendation, the Special Master's Addendum to October 20, 1993 Report and Recommendations Regarding Demotions, the Defendants' Supplemental Statement of Position Respecting the Special Master's October 20, 1993 Report and Recommendation, and the entire record herein, the Court has decided to grant the Defendant's Motion for Reconsideration of its August 20, 1993 Order and to modify its previous Order in accordance with the Recommendation and Report of the Special Master.

 I. BACKGROUND

 As all of the parties familiar with this case are aware, the protracted history of this complex litigation has been marked by a series of fractious battles on all sides. The details of this struggle have been recounted many times, *fn1" but for purposes of clarity, the Court will briefly review the primary incidents leading up to the filing of the Defendants' September 1, 1993 Motion For Reconsideration of the Court's August 20, 1993 Order.

 This lawsuit began as a class action with the filing of Hammon v. Barry, Civil Action No. 84-903 on March 22, 1984. The Plaintiff class consisted of a group of African-American firefighters seeking to enforce an order of the District of Columbia Office of Human Rights, which instructed the District of Columbia Fire Department, ("the Department") to, inter alia, adopt an affirmative action plan. On March 8, 1985, a group of white firefighters and their union challenged implementation of this plan in Byrne v. Coleman, Civil Action No. 85-0872. The plan was also challenged by the United States in United States v. District of Columbia, Civil Action No. 85-797. The cases were then consolidated by the District Court in 1985.

 Over the course of the five year period from 1985 through 1990, both the District Court and the Court of Appeals were heavily involved in the resolution of numerous aspects of this 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 then reviewed the hiring portion of the affirmative action plan on appeal, and reversed this Court's decision 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, upon remand by the Court of Appeals, the District Court again endeavored to resolve all of the remaining issues in this case.

 Two years later, in 1990, the parties all agreed to refer the case to a Special Master for purposes of settlement. Eventually, as a result of concerted efforts by the Court and the Special Master, Professor Stephen A. Saltzburg, working in conjunction with counsel, a settlement acceptable to all of the parties was finally reached.

 On August 20, 1990, a settlement agreement was entered which provided, inter alia, for a fund of $ 3.5 million to be distributed to members of the Hammon class. In addition, the settlement agreement also provided for the establishment of a method by which future promotions were to be made in the Department. The provisions with respect to these promotions are now at the heart of some of the disputes currently before the Court.

 Specifically, the settlement agreement provided for two rounds of promotional examinations - designed in large part to compensate for the fact that no promotions had been made in the Department since the lawsuit began in 1984, a period of over six years. The first promotional examination was intended to fill vacancies that arose during the period from March 1, 1989 through June 1, 1991. The second exam was to fill vacancies arising during the period from June 2, 1991 through June 1, 1993. *fn2" The agreement was then 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 held on November 6, 1990. See Hammon v. Barry, 752 F. Supp. 1087 (D.D.C. 1990). As the Court noted in its Order of August 20, 1993, however, the settlement agreement and consent decree were unfortunately not successful in putting an end to all of the disputes in this case. *fn3"

 Most recently, disagreement among the parties has focused on the proper interpretation of the settlement agreement provisions relating to the establishment of new promotional opportunities within the Department. The question that has arisen concerns how long the promotions made pursuant to the settlement agreement must remain in effect in order for the City to fulfill its obligations under the terms of the settlement.

 More specifically, the instant controversy initially arose this past summer when the City first announced its intention to implement a set of demotions within the District's Fire Department. *fn4" Claiming that such demotions would violate the settlement agreement and consent decree, the Byrne Plaintiffs filed a Motion to Enforce the Settlement Decree on August 12, 1993. On August 20, 1993, this Court issued an Order granting the Byrne Plaintiff's Motion and enjoining the District from demoting, without cause, those firefighters originally promoted pursuant to the terms of the settlement agreement and consent decree approved by the Court on November 6, 1990. The Court's Order held that the City was to be so enjoined for a period of six years from the date the Consent Decree was approved by the Court, November 6, 1990.

 In issuing its August 20, 1990 Order, this Court was faced with the difficult task of determining what would constitute a reasonable duration during which the promotions made pursuant to the settlement agreement ought to remain intact. There was little dispute as to the applicable legal standard governing the Court's determination, namely that the Court should construe the agreement to require a reasonable period of performance, in the absence of an explicit provision relating thereto. The sole question facing the Court was precisely what time period would constitute a reasonable period of performance in keeping with the "spirit and intention" of the consent decree. Accordingly, the Court selected a term of six years in light of the fact that, at the time the settlement agreement was reached and the consent decree was signed in 1990, the firefighters in the District had gone without promotions since 1984, a period of six years.

 Upon receipt of the Court's August 20, 1993 Order, however, the City immediately filed a Motion for Reconsideration, or, in the alternative, for Modification of the Court's Injunction. The primary basis for the Defendant's Motion was the City's claim that the Court's Order constituted a "windfall" for the Plaintiffs (and was unduly harsh to the City) by enjoining demotions for a full six years. In an effort to address this Motion, the Court then held a hearing on September 23, 1993. At that time, counsel for both the City and the Byrne Plaintiffs agreed that the matter should be referred to Special Master Professor Stephen A. Saltzburg who subsequently held a hearing on this issue on October 7, 1993. *fn5"

 After carefully reviewing the submissions of both sides, the Special Master issued a Report and Recommendation on October 20, 1993. Both parties then filed Statements of Position Respecting the Special Master's Report. The Byrne Plaintiffs also filed a Response to the Defendants' Statement of Position, the Special Master subsequently issued an Addendum to his earlier Report and Recommendation, and the Defendants filed a Supplemental Statement of Position. The Court thus has before it all of the above submissions as well as the parties' original filings in this matter.

 II. DISCUSSION

 As the Special Master noted in his report, the parties have not challenged the Court's reasoning in concluding that the "construction of a consent decree is essentially a matter of contract law . . . ." Citizens for a Better Environment v. Gorsuch, 231 U.S. App. D.C. 79, 718 F.2d 1117, 1125 (D.C. Cir. 1983), cert. denied, 467 U.S. 1219 (1984). As such, the consent decree must be construed "within its four corners" United States v. Armour & Co., 402 U.S. 673, 682, 29 L. Ed. 2d 256, 91 S. Ct. 1752 (1971). However, in seeking a proper interpretation, a Court may examine all of the circumstances surrounding the formation of the settlement agreement and the signing of the consent decree. United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 43 L. Ed. 2d 148, 95 S. Ct. 926 (1975).

 Accordingly, in issuing its Order of August 20, 1993, the Court sought to ascertain, to the extent possible, the intent of parties at the time the settlement agreement was signed. In making its determination, the Court relied heavily upon the fact that the Byrne Plaintiffs had signed the settlement agreement because of the compromise reached with respect to the promotions. *fn6" Thus, recognizing that the Byrne Plaintiffs had been denied promotional opportunities for the six year period during which the Hammon litigation had been pending, the Court concluded that six years constituted a reasonable period of time within which to require that the District refrain from undertaking demotions that would render the promotional provisions of the settlement agreement meaningless.

 In filing its Motion for Reconsideration, the City has primarily argued that the Court erred in selecting a term of six years and thereby inadvertently granted a huge "windfall" to the Byrne Plaintiffs - many of whom were not deprived of promotions for a full six years. The City urges the Court to recognize that many of the Byrne Plaintiffs were not eligible for promotions in 1984 and therefore should not receive the benefit of six years of protection. Most powerfully, perhaps, the City notes that seventeen firefighters who were promoted to the rank of sergeant pursuant to the settlement agreement would otherwise not have been eligible for promotion to that rank until 1992. Therefore, far from being disadvantaged by the Hammon litigation, these individuals actually received the benefit of enhanced promotional opportunities as a result of the settlement agreement and consent decree. *fn7" Accordingly, the City urges the Court to reconsider its Order and recognize that a six year ban on demotions is not a reasonable interpretation of what was contemplated by the Parties at the time the settlement agreement was reached.

 Instead, the City has proposed an alternative method by which to determine when the Department should be free to demote those firefighters promoted pursuant to the terms of the settlement. Essentially, the City has suggested that an individualized determination be made as to how much delay each firefighter actually suffered as a result of the Department's failure to make any promotions from 1984 to 1990. The City claims that such case-by-case determinations should control how long the Department must retain a given firefighter in his/her current position before the City is free to make individual demotions without violating its obligations under the settlement agreement and consent decree. By providing the "Entry on Duty" (EOD) date for each firefighter, the City argues that this person-by-person approach to demotions is both administratively feasible and logically desirable. As such, the District seeks to persuade the ...


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