                                                                    [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                    FILED
                                                           U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 MAR 29 2000
                                  No. 97-6347
                                                              THOMAS K. KAHN
                                                                   CLERK
                        D.C. Docket No. CV 85-T-665-N

JOHNNY REYNOLDS, individually on behalf of himself and as representative of a
class of black employees of the Highway Department, State of Alabama, similarly
situated,

                                           Plaintiff-Appellee,

CECIL PARKER, ROBERT JOHNSON, et al.,

                                           Intervenors-Plaintiffs-Appellees,

C. CAMPBELL WILSON,

                                           Intervenor-Plaintiff,

WILLIAM ADAMS, CHERYL CAINE, et al.,

                                           Intervenors-Plaintiffs-Appellants,

                               versus

G. M. ROBERTS, in his official capacity as Director for the Alabama Department of
Transportation, et al.,

                                             Defendants.



                              ________________
                                 No. 98-6192
                              ________________
                       D.C. Docket No. 85-00665-CV-T-N

JOHNNY REYNOLDS, individually and on behalf of himself and as representative
of a class of black employees of the Highway Department, State of Alabama, similarly
situated,

                                             Plaintiff-Appellee,

CECIL PARKER; ROBERT JOHNSON, et al.,

                                             Intervenors-Plaintiffs-Appellees,

WILLIAM ADAMS, CHERYL CAINE, et al.,

                                             Intervenors-Plaintiffs-Appellants,

      versus

G.M. ROBERTS, in his official capacity as Director for the Alabama Department of
Transportation, et al.,

                                             Defendants-Appellees.



                  Appeals from the United States District Court
                      for the Middle District of Alabama

                                (March 29, 2000)

Before TJOFLAT and DUBINA, Circuit Judges, and STORY*, District Judge.

TJOFLAT, Circuit Judge:




                                         2
       These consolidated appeals arise out of a long-standing racial discrimination

class action brought by African-American employees and job applicants against the

Alabama Department of Transportation (the “Department”). Three years after the

district court entered a race-neutral consent decree providing for prospective relief

relating to job qualifications and promotion criteria, plaintiffs’ counsel, using the class

action as their vehicle, applied to the district court for preliminary and permanent

injunctions prohibiting white employees of the Department from availing themselves

of a race-neutral grievance procedure the parties had fashioned and the court had

approved. The court granted counsel’s application for a preliminary injunction, but,

recognizing that the issuance of an order to show cause rather than an injunction is the

appropriate device for enforcing a consent decree, denied

counsel’s application for a permanent injunction. In the same stroke, the court, intent

on granting counsel the relief they sought, transformed their application for a

permanent injunction into an application for a declaratory judgment, declaring that

allowing non-black employees to use the race-neutral grievance procedure violates the

consent decree. Reynolds v. Alabama Dep’t of Transp., 996 F. Supp. 1130 (M.D. Ala.

1998). In No. 97-6347, a class of intervenors, who consist of the Department’s

________________
*Honorable Richard W. Story, U.S. District Judge for the Northern District of Georgia, sitting by
designation.



                                               3
non-black employees (the “Adams Intervenors”), appeals the preliminary injunction.

In No. 98-6192, the same class appeals the declaratory judgment. We vacate both

orders and instruct the district court to restore the status quo ante.



                                                  I.

                                                  A.

       The procedural history of this case is set out in our opinion in Reynolds v.

Roberts, 202 F.3d 1303, 1305-11 (11th Cir. 2000) (Reynolds I). Here, we recite a

shortened version of that history and then focus on the events relevant to this

appeal.

       The named plaintiffs brought this suit against the Department1 in May 1985

on behalf of all black employees and former employees of the Department and all

unsuccessful black applicants for positions within the Department. Alleging race

discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e-2000e-17, 42 U.S.C. § 1981, and the Equal Protection Clause of the

Fourteenth Amendment, plaintiffs sought monetary and injunctive relief under


  1
     In addition to the Department, the plaintiffs sued various state officials. The lawsuit was styled
initially as Reynolds v. King. It became Reynolds v. Roberts, then Reynolds v. Alabama
Department of Transportation. The case came to this court styled Reynolds v. Butts; Butts was the
director of the Department when the Adams Intervenors took this appeal. He was replaced as
director by G.M. Roberts. We refer to the defendants in this case collectively as the Department.

                                                  4
those statutes and under 42 U.S.C. § 1983. In October 1986, the court certified

three plaintiff classes.2

       After the parties joined issue, and engaged in discovery, they entered into

settlement negotiations. In 1988, and again in 1991, they presented a proposed

consent decree to the district court for approval. On each occasion, some members

of the plaintiff classes objected to the entry of the decree; the district court

sustained their objections and refused to enter the decree.

       In June 1992, the case proceeded to trial before the court. Near the end of

the plaintiffs’ case, the parties asked the court to recess the proceeding indefinitely

so they could engage in further settlement negotiations. The court granted their

request. In November 1993, the parties reached a partial settlement, in the form of

a proposed consent decree. The proposed decree provided a range of prospective

class-wide injunctive relief. Among other things, it set hiring and promotion

quotas for blacks – 33% of the positions in each job classification in the

Department would be set aside for blacks. To ensure an adequate pool for this set-


   2
      The first class consisted of any black person who unsuccessfully applied for a merit position
in the Department at any time after May 21, 1979. The second class included all blacks employed
by the Department at any time after May 21, 1979, who were permanent employees under the
Department’s merit system (the “merit” employees) and therefore eligible for, but had been denied,
promotion. The third class consisted of a portion of the blacks employed by the Department at any
time after May 21, 1979, as temporary employees (the “non-merit” employees). During their
employment in the Department, these employees had applied for, but had been denied, merit
positions.

                                                5
aside program, the decree directed the Department to mount an aggressive

recruiting campaign at historically black colleges and universities. Finally, the

decree required the Department to establish a grievance procedure for its

employees.

      The parties presented the proposed decree to the district court, which, in

turn, scheduled a hearing for January 19, 1994, to entertain any objections

members of the plaintiff classes, or others likely to be affected (like white

employees of the Department), might have to the terms of the proposed decree. On

January 13, a group of white Department employees (the “Adams Intervenors”)

moved the court for leave to intervene on behalf of the Department’s non-black

employees in order to challenge the race-conscious provisions of the proposed

decree – specifically, the 33% quota requirement for all job classifications in the

Department. The court granted the motion, Reynolds v. Roberts, 846 F. Supp. 948,

953-54 (M.D. Ala. 1994), and subsequently certified an additional class, consisting

of the Department’s non-black employees.

      The January 19 hearing was held as scheduled. Over 200 people attended

the hearing, including many non-black employees of the Department. The

objections to the race-conscious aspects of the proposed consent decree were such

that the parties withdrew it and, with leave of court, went back to the drawing


                                           6
board. By late February 1994, the plaintiffs and the Department decided to divide

the previously proposed decree into three parts, called Consent Decrees I, II, and

III. Consent Decree I contained the provisions that all sides agreed provided only

race-neutral prospective relief. Consent Decrees II and III contained provisions

that were acceptable to the plaintiffs and the Department, but opposed as race-

conscious by the Adams Intervenors.

      The parties submitted Consent Decree I to the district court for approval,

and, on March 7, the court held a hearing on the fairness of the proposal. No one

other than the parties’ attorneys appeared at the hearing, and no one objected to the

entry of the decree. The court approved the decree and, by order entered March

16, 1994, adopted it in full.



                                         B.

      Consent Decree I is composed of a series of “Articles” which revamped the

process by which the Department hires, promotes, classifies, and pays its

employees. The decree abolished the system of “employment registers” from

which positions were filled and promotions were granted, and created new

qualifications and procedures for hiring and promotion. It also created new

procedures for, among other things, rotation of job duties, recruitment, and


                                          7
training. None of the Articles of Consent Decree I provide special benefits or

procedures for black employees of the Department.

      The only Articles relevant to this appeal are Article 15 and one provision of

Article 19. Article 15 required the Department to conduct a study of all its

employees (regardless of race) to determine if any employees were being assigned

duties associated with a higher job classification (and thus higher pay level) than

the one they currently had. If the study uncovered an employee “spending a

majority of [his or her] working time in the performance of the duties and

responsibilities of a higher job classification,” the Department was required to

reclassify the employee at the higher level (and therefore increase that employee’s

salary). Article 15 also required the Department “to monitor the duties and

responsibilities performed by employees with the goal of assuring to the extent

practicable that at least 90% of the duties and responsibilities performed by

employees on a regular or non-emergency basis are within the job description for

[the] job they are holding.”




                                          8
       To ensure that the Department was fulfilling Article 15’s obligations (as well

as other obligations) under Consent Decree I, Article 19 mandated the creation of a

grievance3 procedure that individual employees could use:

       Within 180 days of the effective date of this Decree, the Highway
       Department will develop and implement an enhanced complaint
       procedure which assures that all discrimination complaints are
       processed without fear and reprisal within established time limits and
       that appropriate action is taken following [the resolution of a
       complaint]. Such procedure will be submitted to plaintiffs’ counsel
       for review and comment at least 30 days prior to its implementation.

The Department complied with this mandate and submitted a proposed complaint

procedure, designated the “Revised Complaint Procedure,” to plaintiffs’ counsel

for review. Plaintiffs’ counsel approved the procedure. Although Article 19 did

not require it to do so, the Department submitted the procedure to the district court.

On August 9, 1995, the court incorporated the procedure in an “Order and

Injunction.”4

   3
     Both Consent Decree I and the Revised Complaint Procedure use the words “grievance” and
“complaint” interchangeably. Throughout this opinion we use the term “grievance.” We use the
term “grievant,” as did the district court, to refer to an employee who has filed a grievance under the
procedure.
   4
      In its order, the court stated that “[c]ounsel for the plaintiffs have informed us that they agree
to [the proposed grievance procedure].” We therefore assume that the Department “submitted [it]
to plaintiffs’ counsel for review and comment at least 30 days prior to its implementation,” as
required by Article 19.
        The court did not indicate, in its order, whether counsel for the Adams Intervenors had
agreed to the procedure. The record does not reveal any contemporaneous objection by the Adams
Intervenors. On appeal, the Adams Intervenors do not challenge the grievance procedure itself, only
the district court’s subsequent action precluding non-black employees from utilizing it.

                                                   9
        The grievance procedure is race-neutral. It opens by stating that “[t]he

Consent Decree and Departmental policy mandate that all employees enjoy a work-

place free from discrimination.” The procedure allows a grievance to be filed for

any “alleged wrong based upon the employee’s race, color, creed, sex, national

origin, age, or handicap.” Moreover, it allows grievances for “a violation of the

Consent Decree, or arising from matters that are the subject of the Consent

Decree.” The procedure is available to the Department’s employees without regard

to race.5

        The grievance procedure consists of four steps. In step one, a grievance is

submitted to an employee’s immediate supervisor. The supervisor responds in

writing with a proposed resolution, which may or may not be accepted by the

grievant. If the grievance cannot be resolved, it is submitted in step two to the

Department’s appointed Equal Employment Opportunity (“EEO”) Monitor, who

also proposes a solution. If the grievant finds the solution unacceptable, the

process moves to step three. Step three is a formal hearing within the Department,




    5
       The Revised Complaint Procedure is also available to “any . . . employee who has been
terminated . . . or applicant for full-time employment.” The complaint procedure, however, provides
no mechanism for a former employee or applicant to file a grievance. Rather, the mechanism that
is provided applies only to current employees.

                                                10
conducted by the Department’s “Hearing Officer.”6 If the matter is still not

resolved, then, at step four, either party may seek arbitration before “an external

arbitrator . . . selected from a panel of Seven (7) arbitrators, with Three (3) of such

panel members to be designated by class counsel, Three (3) to be designated by the

Department, and One (1) to be designated by agreement among the other Six.” An

employee with a grievance is not required to invoke the Revised Complaint

Procedure; as the procedure states, an employee may file an “administrative charge

or separate legal action” instead.7



                                               C.

       As noted, Consent Decree I requires the Department, “to the extent

practicable,” to assure that employees are performing the duties within their job



   6
    A Hearing Officer is taken in sequence from a list of Hearing Officers agreed to by both the
Department and plaintiffs’ counsel.
   7
     In regards to the external arbitration at step four, the grievance procedure states:
       The findings and orders of the arbitrator shall be final from which no appeal may be
       taken in the context of the Reynolds case. Nothing in this procedure, however, shall
       be construed to prevent the filing of any administrative charge or separate legal
       action. In the event that class counsel deems the outcome of the arbitration to
       constitute a violation of Consent Decree I, class counsel may file a motion . . . for
       relief [with] the Court.
The record does not indicate how the parties or the court believed the first sentence of the above
provision, which allows “no appeal,” to be consistent with the third sentence, allowing “class
counsel” to “file a motion . . . for relief [with] the Court” whenever “class counsel deems the
outcome of the arbitration to constitute a violation of Consent Decree I.”

                                               11
classification and are not being assigned extra duties without compensation. By

1996, a number of black employees of the Department had filed grievances

alleging that the Department had assigned them out-of-classification duties. They

sought back pay and/or a “provisional appointment”8 to the position whose duties

they were actually performing. At least two of these grievances eventually made

their way to the district court for a ruling,9 and, in both, the court ordered back pay

and issued an injunction mandating a provisional appointment for the employee.

In neither of these grievances did the district court make a finding that the grievant

had been the victim of discrimination – the court only found that they had been

performing duties outside their job classification, in violation of Article 15.10

   8
     As best we can discern from the record, a “provisional appointment” is simply a temporary
promotion to a higher job classification. The provisional appointment apparently expires when the
higher position is permanently filled through the competitive selection procedures mandated by
Consent Decree I.
    9
       These grievances of black employees came before the court in the following manner. The
original Complaint Procedure negotiated between the parties (but not presented to the district court
for approval) allowed any dissatisfied grievant to file a separate motion for relief with the district
court. The grievances of the black employees described in the text were brought before the district
court pursuant to this procedure; the district court appointed a special master to take evidence and
issue recommendations. At the same time, the court stated that it would not continue to be what it
described as a “super personnel board” and instructed the parties to revise the Complaint Procedure
to “remove the court from the process.” Reynolds, 996 F. Supp. at 1144 n.40. This resulted in the
parties negotiating the Revised Complaint Procedure and submitting it to the district court for
approval. See id. As this appeal indicates, the district court was unsuccessful in “remov[ing itself]
from the process.” Id.
   10
      One of the district court’s injunctive orders awarding a provisional appointment and back pay
to a black grievant indicates that the Department opposed the award because the grievant had not
proven that he had been assigned work out-of-classification because of his race. The district court

                                                 12
         In late 1996, three white employees of the Department (“the white

grievants”) filed grievances alleging that they too had been assigned duties outside

their classification in violation of Article 15.11 They sought back pay and

provisional appointments. The employees’ supervisor (all three apparently had the

same supervisor) did not provide a satisfactory resolution, and a single hearing for

all three grievants was held before the Department’s EEO Monitor. The EEO

Monitor recommended back pay and provisional appointments for all three, a

resolution which was accepted by the white grievants.



                                                D.

         On February 26, 1997, counsel for the three plaintiff classes (“plaintiffs’

counsel”) moved the district court for a temporary restraining order (“TRO”) to

prevent the Department from implementing the three grievance resolutions.12 They


dismissed the Department’s position: “[A black grievant] has no obligation to show that the
[D]epartment acted in a discriminatory manner, only that they failed to conform to the decree.”
        11
           The white grievants did not allege that they had been assigned duties outside their
classification because of their race.
   12
       As explained supra note 2, the plaintiff classes were made up of (1) unsuccessful applicants
for merit positions with the Department, (2) merit employees who had been denied promotion(s) in
the Department, and (3) non-merit employees who had been denied merit positions. The second and
third classes included both former and current employees of the Department.
        It is obvious that the Department’s Revised Complaint Procedure is inapplicable to the first
plaintiff class and to the former employees in the second and third plaintiff classes. See supra n.5
and accompanying text. The procedure applies, instead, to current employees in the second and

                                                13
alleged that, if the EEO Monitor’s resolution of the grievances were implemented,

the Department would be violating Consent Decree I. The next day, the court

conferred with plaintiffs’ counsel and the Department’s attorneys by telephone;13

later that day, it issued a TRO which enjoined the Department from implementing

the three grievance resolutions. On March 10, plaintiffs’ counsel applied for a

preliminary injunction and asked the court to extend the TRO until their

application could be heard. After another telephone conference with the attorneys,

the court extended the TRO and scheduled a hearing for March 24 on the

application for a preliminary injunction.14

        The hearing was held as scheduled. On April 9, 1997, the court

“preliminarily ENJOINED and RESTRAINED” the Department and its agents

“from provisionally appointing, promoting or paying backpay to [the three white


third classes and, of course, to the Department’s future employees.
        Accordingly, when plaintiffs’ counsel applied to the district court for the preliminary and
permanent injunctive relief involved in this appeal (although they did not indicate as much), they
were not representing members of the first plaintiff class or former employees in the second and
third plaintiff classes.
   13
      There is no indication in the record that the three white grievants were notified of plaintiffs’
counsel’s application for a TRO or that they were represented by counsel in the telephone
conference with the court. Accordingly, the TRO issued without notice to these grievants. See Fed.
R. Civ. P. 65(b). The record indicates that counsel for the Adams Intervenors participated in all
subsequent hearings on plaintiffs’ counsel’s applications for injunctive relief (relating to the Revised
Complaint Procedure) and acted as counsel for the three white grievants – just as they have in these
appeals.
   14
        The extended TRO would expire on March 24.

                                                  14
grievants].” The Adams Intervenors timely appealed from this preliminary

injunction, No. 97-6347.

         On March 28, before the court had ruled on the application for a preliminary

injunction, plaintiffs’ counsel applied for a second preliminary injunction; this

time, they asked the court to prevent the Department from processing any

grievances by non-black employees. Counsel alleged that allowing any non-blacks

to utilize the grievance procedure would violate Consent Decree I. The court

treated counsel’s application as one for a permanent injunction and held hearings in

late April 1997. Eleven months later, on March 3, 1998, while the Adams

Intervenors’ appeal of the April 9 preliminary injunction was pending in this court,

the district court, in a memorandum order, ruled on counsel’s application. See

Reynolds, 996 F. Supp. 1130.15

         In its March 3, 1998, order, the court did not grant plaintiffs’ counsel a

permanent injunction; instead, acting sua sponte, it gave them declaratory relief.16

It stated that allowing non-class members to file grievances would be “a tool to

allow supervisors again to engage in the secretive and non-competitive selection

    15
         As far as we can tell from the record, the district court did not vacate the preliminary
injunction enjoining the Department from implementing the EEO Monitor’s resolutions of the white
employees’ grievances; we assume, therefore, that the preliminary injunction remains in effect
against the Department.
   16
        In none of plaintiffs’ motions for injunctive relief did they ask for declaratory relief.

                                                   15
and promotion of employees.” Id. at 1132. The court worried that an employee

and supervisor would collude to circumvent the competitive system for

employment contemplated by the consent decree: the employee, under the direction

of his supervisor, would file a fake “grievance,” which would result in the

supervisor awarding a provisional appointment and back pay. Id. at 1139. Despite

this concern, the court concluded that issuing an order enjoining the Department

from hearing grievances of non-blacks would be inappropriate. It reached this

conclusion because, in Newman v. Alabama, 683 F.2d 1312, 1318 (11th Cir.

1982), we instructed that consent decrees, like all injunctions, are to be enforced

through the district court’s civil contempt power – exercised after (1) the plaintiff

moves the court to order the defendant to show cause why he should not be held in

contempt for refusing to obey the decree’s mandate, (2) the court grants the

motion, and (3) the defendant fails to present a lawful excuse for his alleged

disobedience – and plaintiffs’ counsel had not invoked the court’s enforcement

power in this manner. Notwithstanding plaintiffs’ counsel’s failure to move the

court for an order to show cause why the Department should not be adjudged in

contempt for refusing to comply with the Consent Decree I, the court treated

counsel as though they had done so – except that instead of entering a permanent

injunction against the Department, it entered a declaratory judgment, which (we


                                          16
presume) it fully expected the Department to treat as an injunction.17 The court

stated that “the plaintiffs’ motions for permanent injunctions . . . are granted to the

extent that it is declared as follows: Provisionally appointing, promoting, or paying

backpay to [the three white grievants] pursuant to the grievances they filed would

violate the consent decree.”18 Reynolds, 996 F. Supp. at 1156.

             The Adams Intervenors appealed this declaratory judgment, No. 98-6192.

We consolidated the appeal with their appeal of the preliminary injunction, No. 97-

6347. We now vacate both judgments.



                                                  II.


   17
      We have no doubt that the Department would treat the declaratory judgment as an injunction,
since the declaratory judgment would appear to foreordain the outcome of a hearing requiring the
Department to show cause why it should not be held in contempt for allowing non-black employees
to invoke the grievance procedure.
        18
          As we explain in the text infra, the district court had no basis for nullifying the EEO
Monitor’s resolutions of the three white’s grievances; nothing in the record even remotely suggested
that the EEO Monitor’s resolutions somehow discriminated against a member of any of the plaintiff
classes. The court’s only reason for entering the judgment was to alleviate its concern that, at some
unforeseen time in the future, the Department might use the grievance procedure to reinstitute its
racially discriminatory practices. In sum, if the EEO Monitor’s resolutions of the three white’s
grievances did not discriminate against a member of a plaintiff class, but the court nonetheless felt
constrained to nullify the resolutions as violative of Consent Decree I, it follows inexorably that, in
the court’s view, allowing any non-black to invoke the grievance procedure – even if it caused a
plaintiff class member no injury – would violate the decree. We therefore treat the declaratory
judgment as amending the Revised Complaint Procedure so that it applies only to blacks. We
assume that, if a non-black employee has a grievance, he or she should resort not to the Revised
Complaint Procedure, but to whatever alternative procedure the Department may have devised for
the purpose of entertaining the grievance.

                                                  17
        Before we consider the merits of the Adams Intervenors’ appeals, we think it

appropriate to reiterate what we have said in the past as to how injunctions,

including consent decrees, are to be enforced. They are enforced through the trial

court’s civil contempt power. See In re Grand Jury Proceedings, 142 F.3d 1416,

1424 (11th Cir. 1998) (injunction); Newman, 683 F.2d at 1317-19 (consent

decree). If the plaintiff (the party obtaining the writ) believes that the defendant

(the enjoined party) is failing to comply with the decree’s mandate, the plaintiff

moves the court to issue an order to show cause why the defendant should not be

adjudged in civil contempt and sanctioned. See Newman, 683 F.2d at 1318; see

also Thomason v. Russell Corp., 132 F.3d 632, 634 n.4 (11th Cir. 1998); Wyatt v.

Rogers, 92 F.3d 1074, 1078 n.8 (11th Cir. 1996). The plaintiff’s motion cites the

injunctive provision at issue and alleges that the defendant has refused to obey its

mandate. See Wyatt, 92 F.3d at 1078 n.8. If satisfied that the plaintiff’s motion

states a case of non-compliance, the court orders the defendant to show cause why

he should not be held in contempt and schedules a hearing for that purpose.19 At

the hearing, if the plaintiff proves what he has alleged in his motion for an order to

show cause, the court hears from the defendant. At the end of the day, the court



   19
       The court’s show cause order may instruct the defendant to file a response; depending on
what the defendant says in his response, a hearing may be unnecessary.

                                              18
determines whether the defendant has complied with the injunctive provision at

issue and, if not, the sanction(s) necessary to ensure compliance. See Newman,

683 F.2d at 1318.

        As the district court appropriately recognized in its March 3, 1998, order

granting a declaratory judgment, plaintiffs’ counsel did not invoke this time-

honored procedure to obtain enforcement of any of the provisions of Consent

Decree I or the Order and Injunction, which amended Consent Decree I by

approving the Revised Complaint Procedure. The reason why plaintiffs’ counsel

did not move the court for an order to show cause is obvious: the Department had

not disobeyed any of the mandates of the consent decree, as amended, and

plaintiffs’ counsel could not contend that it had without running afoul of Rule 11

of the Federal Rules of Civil Procedure.20 What the Department had done was to

permit three white employees to invoke the race-neutral grievance procedure

(provided by the Revised Complaint Procedure), and, then, to accept the EEO

Monitor’s resolutions of the grievances. Instead of seeking enforcement of the



   20
        Rule 11 states, in pertinent part:
         By presenting to the court . . . a pleading . . . an attorney . . . is certifying that to the
         best of the person’s knowledge, information, and belief, formed after an inquiry
         reasonable under the circumstances . . . the claims, defenses, and other legal
         contentions therein are warranted by existing law or by a nonfrivolous argument for
         the extension, modification, or reversal of existing law . . . [and] the allegations and
         other factual contentions have evidentiary support . . . .

                                                      19
consent decree, as amended, through the district court’s contempt power, plaintiffs’

counsel took another approach, in two steps.

      First, they moved the court to prevent the Department from implementing

the EEO Monitor’s resolutions by entering a TRO and then a preliminary

injunction. Second, they moved the court permanently to enjoin the Department

from allowing any non-black employee to invoke the grievance procedure. The

district court entered the TRO and preliminary injunction counsel requested.

Eleven months later, the court transformed counsel’s application for a permanent

injunction into a request for declaratory relief and granted a declaratory judgment.

We turn now to the merits of the Adams Intervenors’ appeals, beginning with their

appeal of the preliminary injunction.



                                         A.

      We do not tarry long in concluding that the district court erred in entering

the preliminary injunction barring the Department from implementing the EEO

Monitor’s resolutions of the white employees’ grievances. A court enters a

preliminary injunction to prevent the plaintiff from being injured, and where there

is no adequate remedy at law. See Beacon Theatres, Inc. v. Westover, 359 U.S.

500, 506-07, 79 S. Ct. 948, 954, 3 L. Ed. 2d 988 (1959). In this case, the


                                         20
Monitor’s resolutions injured no member of a plaintiff class on account of race or

in any other way. Had injury occurred in violation of any of the civil rights laws or

the Equal Protection Clause of the Fourteenth Amendment, a class member could

have filed an independent lawsuit, in state or federal court, and sought legal or

equitable relief, or both. But, because no class member suffered injury, plaintiffs’

counsel were proceeding strictly on their own. That is, although they appeared to

be representing the plaintiff classes, they were actually representing no one but

themselves – bent on preventing the three white grievants from obtaining

provisional appointments and back pay. They proceeded as if the white grievants

had done something unlawful by invoking the race-neutral complaint procedure.

       Because they had suffered no injury that would warrant relief, legal or

equitable, plaintiffs’ counsel lacked standing to prosecute their application for a

preliminary injunction. Moreover, by using the Reynolds case as a vehicle to

prosecute their application, they abused the judicial process. And the abuse was as

gross as any we have encountered. As we detail in the margin,21 counsel not only


      21
          After plaintiffs’ counsel filed their motion for preliminary injunction to prevent the
Department from implementing the EEO Monitor’s resolutions, the attorneys for the Adams
Intervenors moved the court to allow the three white grievants to intervene as individuals in order
to represent their interests. At the March 24, 1997, hearing on plaintiffs’ counsel’s application for
a preliminary injunction, plaintiffs’ counsel objected to a separate intervention by these white
grievants, stating, “Intervention is not necessary to bind these parties to an injunction. To allow
further white employees to come into the case at will at this late date is not proper.” The court stated
it would “take the motion [to intervene] under submission. Since it appears that the movants . . . are

                                                  21
failed to join the three white grievants as defendants, they vigorously opposed their

efforts to intervene.

        There is no need to say more. The district court’s preliminary injunction is

vacated, and we instruct the court to strike from the record plaintiffs’ counsel’s

application for injunctive relief barring the Department from implementing the

EEO Monitor’s resolutions of the three white employees’ grievances.



                                                   B.

        We address the merits of the Adams Intervenors’ appeal of the declaratory

judgment by making a few observations that can hardly be disputed. First, Consent

Decree I provides race-neutral prospective relief, and that is all. Second, Article 19

required the Department to draft a procedure for ensuring that employees could

complain about such things as improper job classification and pay “without fear

and reprisal” and to submit the procedure to “plaintiffs’ counsel for review and


represented by the same lawyer [as the Adams Intervenors], I don’t see any need to resolve that right
now.”
        The district court entered the preliminary injunction on April 9, without ruling on the motion
to intervene. The Adams Intervenors filed their notice of appeal on behalf of the class and on behalf
of the white grievants as “proposed-intervenors.”
        Two months later, the Adams Intervenors, in their brief in opposition to plaintiffs’ counsel’s
motion for a permanent injunction, argued in support of their motion to allow the three white
grievants to intervene. Neither plaintiffs’ counsel nor the Department responded to the arguments.
        As far as we can tell from the record, the district court has never ruled on the white grievants’
motion to intervene. Under the circumstances, for purposes of this appeal we treat the three white
grievants as part of the class represented by the Adams Intervenors.

                                                   22
comment.” The Department drafted a procedure, the “Revised Complaint

Procedure,” and submitted it to plaintiffs’ counsel as Article 19 required. The draft

was, as indicated supra, entirely neutral with respect to “race, color, creed, sex,

national origin, age, or handicap,” meaning that the procedure would be made

available to everyone, including a non-black. Third, plaintiffs’ counsel approved

the draft. See supra n.4. Fourth, although Article 19 did not require court

approval, the draft was submitted to the district court. Fifth, the court approved the

draft, and thus made it an amendment to Consent Decree I.

       To say that the Revised Complaint Procedure somehow “violates” Consent

Decree I, as plaintiffs’ counsel contended in their application for a permanent

injunction (barring non-blacks from invoking it) is more than sophistic; it is

preposterous. So, why did plaintiffs’ counsel file their application for a permanent

injunction which would limit the protection afforded by the complaint procedure to

blacks only? Because they thought they had made a bad bargain, and they wanted

to undo it. But, instead of asking the court to void the contract, however, for

mutual mistake of fact or some other legally-recognized ground for vitiating

contracts22 (which would have been the professional thing to do, assuming that

  22
     Consent decrees are construed according to accepted contract principles. See Reynolds I, 202
F.3d at 1312-13. We note, however, that “[f]or the purposes of modification, consent decrees are
not governed by contract law, but are treated as judicial acts, akin to injunctions.” Jacksonville
Branch, NAACP v. Duval County Sch. Bd., 978 F.2d 1574, 1578 (11th Cir. 1992).

                                               23
they could satisfy Rule 11’s ethical/professional standard), plaintiffs’ counsel

claimed that the revised procedure “violated” Consent Decree I. The district court

should have given plaintiffs’ claim short shrift and rejected out of hand their

application for a permanent injunction. The court recognized that an application

for injunctive relief is an inappropriate device for enforcing a consent decree, so it

sua sponte transformed the application into an application for a declaratory

judgment. Apparently, the court failed to realize that “that dog won’t hunt,” Elrod

v. Sears, Roebuck, and Co., 939 F.2d 1466, 1471 n.3 (11th Cir. 1991), and that it

was entering a judgment that could not withstand appellate review.

      It is evident, from what transpired in the district court in this case, that

counsel and the court need to be reminded of two things. First, “[l]ong standing

precedent evinces a strong public policy against judicial rewriting 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 (2d Cir. 1995).” Reynolds I, 202 F.3d at 1312. Consent decrees

are contracts, and we construe them using the normal tools for interpreting

contracts. See id. at 1312-13. Where they are unambiguous, the court must uphold

a decree as written. In this case, the contract – the Revised Complaint Procedure –




                                           24
is unambiguous.23 Moreover, although it was drafted by the Department’s

attorneys, it was approved by the plaintiff classes’ highly sophisticated attorneys.24

Accordingly, the district court had no basis in law for rewriting the contract, which

it had approved, so that the Revised Complaint Procedure would be available only

to blacks.


         Second, if in the future a black employee – or any employee, for that matter

– suffers racial discrimination in the work place, the employee’s remedy (if the

grievance cannot be resolved) will be to seek relief in a separate lawsuit, brought in

state or federal court. If brought in the United States District Court for the Middle

District of Alabama, the suit will be assigned to a district judge under the court’s




        23
            Because Consent Decree I and the Revised Complaint Procedure amendment are
unambiguous, the district court erred when, in determining whether the amendment violated the
decree, it considered evidence that the plaintiff classes had introduced at the trial of the case, which
was aborted before plaintiffs rested, and testimony given at the March 24, 1997, hearing on
plaintiffs’ counsel’s application for a preliminary injunction (barring the Department from
implementing the EEO Monitor’s resolutions of the white employees’ grievances). See Reynolds,
996 F. Supp. at 1134-36, 1139-42.
   24
        We take judicial notice that plaintiffs’ counsel have a wealth of experience in the courts of
this circuit and are surely aware of the legal consequences of entering into contracts and consent
decrees. See, e.g., Riddle v. Cerro Wire & Cable Group, Inc., 902 F.2d 918 (11th Cir. 1990);
Holmes v. Continental Can Co., 706 F.2d 1144 (11th Cir. 1983).

                                                  25
random assignment system. In other words, the suit will not be made a part of the

Reynolds litigation.25


        In sum, in No. 98-6192, the district court’s declaratory judgment is vacated,

and we instruct the district court to strike from the record plaintiffs’ counsel’s

application for permanent injunctive relief barring the Department from making the

Revised Complaint Procedure available to non-blacks.




                                                 III.


        In No. 97-6347, plaintiffs’ counsel invited the error the district court

committed when it entered the preliminary injunction barring the Department from

affording the three white grievants the provisional appointments and back pay the

EEO Monitor awarded to them. In addition to inviting the error, plaintiffs’ counsel

have attempted to defend the district court’s ruling on appeal with baseless



   25
       We issue this directive in the exercise of our supervisory power after considering the history
of this litigation. See 28 U.S.C. § 2106 (1994) (“[A] court of appellate jurisdiction may . . . require
such further proceedings to be had as may be just under the circumstances.”). See generally
Piambino v. Bailey, 757 F.2d 1112, 1145-46 (11th Cir. 1985) (“Despite the wide variety of
situations in which supervisory power has been invoked, the objective behind its use – fashioning
procedures and remedies that ensure that the judicial process remains a fair one – has not varied.”).
See also Smith v. Mulvaney, 827 F.2d 558, 562-63 (9th Cir. 1987); United States v. Baylin, 696 F.2d
1030, 1043 n.30 (3d Cir. 1982).

                                                  26
arguments. We have considered whether we have the authority under Rule 38 of

the Federal Rules of Appellate Procedure to award the Adams Intervenors “just

damages and single or double costs,” but we conclude that the rule, as written,

precludes such an award to the appellant.26 We have also considered whether we

have the authority under 28 U.S.C. § 1927 (1994) to award these intervenors

“excess costs, expenses, and attorneys’ fees reasonably incurred” because of

counsel’s conduct. The courts of appeals have section 1927 authority. See, e.g.,

T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 638 (9th

Cir. 1987); Olympia Co., Inc. v. Celotex Corp., 771 F.2d 888, 893-94 (5th Cir.

1985). Counsel subject to section 1927 sanctions are entitled to be heard regarding

the matter, see Braley v. Campbell, 832 F.2d 1504, 1514-15 (10th Cir. 1987) (en

banc); accordingly, on receipt of the mandate, the chief judge of the Middle

District of Alabama will assign the case to himself or another district judge (other

than Judge Thompson) for the purpose of enabling plaintiffs’ counsel to show

cause why section 1927 sanctions should not be awarded to the Adams Intervenors.




   26
       Rule 38 states: “If a court of appeals determines that an appeal is frivolous, it may, after a
separately filed motion or notice from the court and reasonable opportunity to respond, award just
damages and single or double costs to the appellee.” See also 28 U.S.C. § 1912 (1994) (allowing
court of appeals to award “just damages . . . and single or double costs” when “a judgment is
affirmed”).

                                                 27
      In No. 98-6192, we conclude that the issue is a closer one. We assume that

plaintiffs’ counsel are not responsible for the district court’s sua sponte decision to

transform their application for a permanent injunction into an application for a

declaratory judgment. As the district court itself acknowledged, it should have

dismissed counsel’s application for a permanent injunction under the authority of

Newman v. Alabama, 683 F.2d at 1318.




                                          IV.


      In conclusion, in No. 97-6347, we vacate the district court’s preliminary

injunction and instruct the court to strike plaintiffs’ counsel’s application for

injunctive relief. In No. 98-6192, we vacate the court’s declaratory judgment and

instruct the court to strike from the record counsel’s application for a permanent

injunction. The court is instructed to restore the case to the status quo ante, which

means nothing has happened in this case since August 9, 1995, when the district

court entered its Order and Injunction, amending Consent Decree I to incorporate

the Revised Complaint Procedure.


      SO ORDERED.



                                           28
STORY, District Judge, concurring in part and dissenting in part:


      I agree with the majority’s decision vacating the district court’s preliminary

injunction in No. 97-6347 and instructing the district court to strike Plaintiffs’

application for injunctive relief and vacating the district court’s declaratory

judgment in No. 98-6192 and instructing the district court to strike from the record

Plaintiffs’ application for permanent injunctive relief. However, as to Part III of

the majority opinion, I dissent.


      The majority charges plaintiffs’ counsel with “proceeding strictly on their

own” and “representing no one but themselves” in their pursuit of an injunction to

prohibit the use of the Revised Complaint Procedure by non-blacks. I do not

ascribe such sinister motives to plaintiffs’ counsel. We must not lose sight of the

history of this case. Hopefully, we are in the final chapter of a series of suits

brought to end pervasive discrimination within the Alabama Department of

Transportation (“ALDOT”). It is against this background that counsel’s motives

should be judged. For example, evidence presented at the 1992 trial concerning

the alleged pre-decree practice which allowed supervisors and employees to

circumvent the merit selection process through provisional promotions reasonably

raised counsels’ concerns that the new procedure might be abused. Plaintiffs’


                                          29
counsel thus had a legitimate concern that the Revised Complaint Procedure might

violate Consent Decree I. Based upon the orders it entered, the district court

apparently shared these concerns.


      Because there is no evidence to support a finding that the Revised Complaint

Procedure was being used by ALDOT officials to violate Consent Decree I or in an

otherwise discriminatory manner, the relief granted by the district court cannot be

justified. However, this historical evidence arguably justified action being taken

by plaintiffs’ counsel to get the issue before the district court for consideration.

Except for the majority’s findings about plaintiffs’ counsel’s motives, I CONCUR

fully in the analysis of the majority in Parts I, II, and IV.


      As to Part III, I would not impose § 1927 sanctions. Though plaintiffs’

counsel sought the wrong form of relief, they were attempting to be vigilant in

protecting their clients’ rights rather than being unreasonable and vexatious.

Therefore, as to Part III of the majority opinion, I DISSENT.




                                            30
