                                                     [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                    FILED
                                                       U.S. COURT OF APPEALS
                             _____________               ELEVENTH CIRCUIT
                                                             July 17, 2009
                              No. 08-14729                THOMAS K. KAHN
                             _____________                      CLERK


                   D.C. Docket No. 03-00199-CV-2-D-N

TIMOTHY D. POPE,
                                                     Plaintiff-Appellant,

                                  versus
 STATE OF ALABAMA,
ALABAMA DEPARTMENT OF CORRECTIONS,
ALABAMA STATE PERSONNEL DEPARTMENT,
JACKIE B. GRAHAM,
in her official capacity as the Director
of the Alabama State Personnel Department and
successor to Thomas G. Flowers,
RICHARD F. ALLEN,
in his official capacity as the Commissioner
of the Alabama Department of Corrections and
successor to Michael Haley and Donal Campell,
                                                     Defendants-Appellees.

                              ____________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                              ____________

                              (July 17, 2009)

Before DUBINA, Chief Judge, EDMONDSON and HILL, Circuit Judges.
PER CURIAM:

       This is an appeal from the grant of a motion for summary judgment in favor

of the State of Alabama, the Alabama Department of Corrections (ADOC), the

Alabama State Personnel Department (ASPD), ASPD’s director, and ADOC’s

commissioner (collectively, the State), on claims brought by Timothy Pope (Pope)

pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to

2000e-17 (Title VII), and the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution, as enforced by 42 U.S.C. § 1983

(Section 1983). Based upon the following, we affirm the judgment of the district

court.1

                                                 I.

       In August 2002, Pope, an ADOC white male employee working at the Bibb

Correctional Facility in Brent, Alabama, as Correctional Officer I, was notified

that his name had been placed on a certificate of eligible candidates for promotion

to Correctional Officer II. In September 2002, he interviewed for the position,

was offered and accepted the position.

       However, final authority for the decision to promote rested up the


       1
         The procedural and factual history of this case is thoroughly set forth in the twenty-nine
(29) page memorandum opinion and order of the district court dated July 24, 2008; therefore we
cite background only relevant to this appeal.

                                                 2
administrative pipeline with the ASPD. In its due diligence, the ASPD determined

that a higher ranking African-American female’s name was also listed on the

certificate of eligibility. Pope’s ADOC offer to promote was rescinded by the

ASPD as forbidden by the “no-bypass” rule mandated in 1970 by court order,

United States v. Frazer, 317 F. Supp. 1079, 1091 (M.D. Ala. 1970), then in full

force and effect.2

       Pope filed suit against the State under Title VII and Section 1983 in 2003.

This appeal results.3

                                                II.

       The Frazer no-bypass rule prohibited the State from overlooking a higher-

ranked African-American applicant in favor of a lower-ranked white applicant on

a certificate of eligibles, unless the African-American was unqualified or unfit for

the position. See Frazer, 317 F. Supp. at 1091. This long-standing litigation and

the rules resulting therefrom remained in effect for thirty-five years, from 1970,

until temporarily suspended in May 2005, United States v. Flowers, 372 F.



       2
         The record is patently clear that, in 1970, the State was engaged in a widespread,
systemically biased pattern and practice of discriminating against African-Americans in its hiring
and promotional practices. Frazer was a comprehensive remedial order, entered for the purpose
of correcting these practices. The judicially imposed no-bypass rule was but one of its many
provisions.
       3
           The record indicates that Pope was promoted in 2004.

                                                3
Supp.2d 1319 (M.D. Ala. 2005), and finally terminated in June 2006. United

States v. Flowers, 444 F. Supp.2d 1192 (M.D. Ala. 2006).

                                               III.

       Citing Martin v. Wilks, 109 S.Ct. 2180 (1989), Pope argues that he is not

bound by the court decree of Frazer because he was not named as an original party

to the litigation.4 Pope also contends that his promotion was clearly rescinded

because of his race and that the State falsely claims immunity under an ancient

rule to which he was not joined as a party. It is thereby unconstitutionally trying

to shield itself from any claims by Pope for race discrimination.

       Pope claims that Frazer’s no-bypass rule is unconstitutional on its face, and,

that the State, in 2002, should have either sought relief or a waiver on his behalf

from the 1970 order.5 Pope contends that the record shows that in the Spring of

2002, the State admits that the no-bypass rule was unconstitutional on its face, and

could no longer pass muster under a strict scrutiny analysis. See City of Richmond


       4
         Pope argues throughout that the Supreme Court, in Martin v. Wilks, 109 S.Ct.2180
(1989), stands for the proposition that, a non-party to an adjudicated judgment or a consent
decree, has the right to attack a race-based program as unconstitutional. See also United States v.
Jefferson County, 720 F.2d 1511, 1518 n.16 (11th Cir. 1983) (where there is no distinction
between a consent decree and a litigated judgment for purposes of res judicata or collateral
estoppel).
       5
         The record indicates that Pope was ultimately successful in challenging the validity of
the no-bypass rule in 2005, three years after his promotion was rescinded in 2002, and one year
after he was actually promoted in 2004.

                                                 4
v. J. A. Croson Co., 109 S.Ct. 706 (1989); Wygant v. Jackson Bd. of Educ., 106

S.Ct. 1842 (1986). Pope further contends that when a non-African-American is

not joined as a party in a race discrimination case, he is not bound by its judgment.

See Ensley Branch N.A.A.C.P. v. Seibels, 31 F.3d 1548 (11th Cir. 1994).

                                          IV.

      The State cites Martinez v. City of St. Louis, 539 F.3d 857 (8th Cir. 2008),

for the proposition that compliance with a consent decree in order to avoid

contempt is a complete defense to an equal protection claim. It also cites Citizens

Concerned About Our Children v. School Bd. of Broward County, Fla., 193 F.3d

1285 (11th Cir. 1999), another equal protection case where compliance is a

complete defense, as a violation would be punishable by contempt. Id. at 1292

(“A potential for contempt alone could provide the [defendant] a compelling

interest to observe racial policies . . . [a]ny rule that punished the [defendant] for

failing to disobey the court would not comport with the sanctity of an

unchallenged court order”) (alteration in original) (citations omitted).

      “Avoiding contempt and respecting the court that entered the [court order

or] the consent decree suffice to make obedience a compelling interest.” Citizens

Concerned, 193 F.3d at 1292. “A contravening compelling interest justifies an

explicitly racial policy only when the policy is narrowly tailored to serve that

                                           5
interest.” Id. at 1293.6

                                                 V.

       At the time Pope’s promotional offer was rescinded in 2002, the State was

clearly bound by Frazer’s court order, valid and in effect since 1970. Had, in

2002, the State violated the no-bypass rule, before the rule was temporarily

suspended in 2005, or permanently terminated in 2006, it would have been subject

to contempt.7

       We conclude that, as the no-bypass rule was in effect in 2002, the State was

required, and fully justified, in abiding by its enforcement. Indeed it was in the

compelling interest of the State to avoid a violation punishable by contempt and to

respect the sanctity of the Frazer court. Indeed, the State was required to obey the

order until it was either reversed or modified. See GTE Sylvania, Inc. v.

Consumers Union of the United States, Inc., 100 S.Ct. 1194 (1980).

       6
          The State contends that Pope can not rely upon Wilks as it stands merely for the
proposition that a non-party to an adjudicated court order or a consent decree has the procedural
right to challenge it, but that non-party must still prove the substantive merits of his or her Title
VII and Section 1983 claims. We agree.

       7
          In May 2002, in order to determine whether the no-bypass rule was still necessary, the
State hired statistical experts to examine the racial composition of the Alabama workforce as
well as the racial patterns of recent selections in the workforce. The purpose was to allow the
State to garner hard evidence with which to support a motion to terminate the rule. The State
suspected, yet had no actual evidence in 2002, that sufficient numbers of African-American
persons had been promoted to high-level positions throughout Alabama and that the rule no
longer fit the circumstances existing in the State.

                                                  6
                                        VI.

      We have thoroughly considered the record in this appeal, the briefs, and the

arguments of counsel put forth at oral argument. We find no merit to Pope’s Title

VII or Section 1983 claims. Although the no-bypass rule was eventually found to

be unconstitutional and terminated, as, in essence, the rule had “done its job,”

Pope cannot retroactively bootstrap this 2006 finding back to the past, and hold

the State liable for actions it made in 2002, in rescinding his promotion. The State

can not be punished for failing to disobey a valid court order. See Citizens

Concerned, 193 F.3d at 1292.

      We affirm the judgment of the district court granting summary judgment in

favor of the State.

      AFFIRMED.




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