CASE NO IN THE UNITED STATES COURT OF APPEAL FOR THE FIFTH CIRCUIT

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1 Case: Document: Page: 1 Date Filed: 04/01/2013 CASE NO IN THE UNITED STATES COURT OF APPEAL FOR THE FIFTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee v. NEW ORLEANS CITY, Defendant - Appellee v. CRESCENT CITY LODGE NO. 2, FRATERNAL ORDER OF POLICE, INCORPORATED; WALTER POWERS, JR., Movants - Appellants On Appeal from the United States District Court for the Eastern District of Louisiana C.A. No (E)(2) REPLY BRIEF OF MOVANTS - APPELLANTS, CRESCENT CITY LODGE NO. 2, FRATERNAL ORDER OF POLICE, INCORPORATED and WALTER POWERS, JR. C. THEODORE ALPAUGH, III (No ) CLAUDE A. SCHLESINGER (No ) GUSTE, BARNETT, SCHLESINGER, HENDERSON& ALPAUGH, L.L.P. 639 Loyola Avenue, Suite 2500 New Orleans, Louisiana Telephone: (504) Attorneys for Movants - Appellants, CRESCENT CITY LODGE NO. 2, FRATERNAL ORDER OF POLICE, INCORPORATED and WALTER POWERS, JR. ORAL ARGUMENT REQUESTED

2 Case: Document: Page: 2 Date Filed: 04/01/2013 TABLE OF CONTENTS Table of Contents ii Table of Authorities iii Summary of the Argument Argument I. THE USA TOTALLY IGNORES THE EFFECT OF THE CONSENT DECREE AND THE INCORPORATED INJUNCTION ON THE MEMBERS OF THE NOPD AS AFFECTING A LEGALLY PROTECTIBLE INTEREST II. III. APPELLANTS CLEARLY HAVE A LEGALLY PROTECTIBLE INTEREST WHICH ENTITLES THEM TO INTERVENE HEREIN THE DISTRICT COURT ABUSED ITS DISCRETION WHEN IT DENIED PERMISSIVE INTERVENTION Conclusion Certificate of Service Certificate of Compliance ii

3 Case: Document: Page: 3 Date Filed: 04/01/2013 TABLE OF AUTHORITIES FEDERAL CASES Black Fire Fighters Ass'n of Dallas v. City of Dallas, 19 F.3d 992 (5 th Cir.1994) Edwards v. City of Houston, 78 F.3d 983 (5 th Cir. 1996) Gunn v. University Committee to End War in Viet Nam, 399 U.S. 383, 389, 90 S.Ct. 2013, 2017, 26 L.Ed.2d 684 (1970) United States v. City of Los Angeles, 288 F.3d 391 (9 th Cir. 2002) STATE CASES Louisiana Civil Service League v. Forbes, 258 La. 390, 246 So.2d 800 (1971) Owen v. New Orleans City Civil Service Commission, 371 So.2d 364 (La. App. 4 th Cir., 1979) Sanders v. Dept. of Health & Human Resources, 388 So.2d 768 (La. 1980)... 5, 6 STATE STATUTES La. Const. Art. X, 1, et seq La. Const, Art. X, La. Const. Art. X, La. Const. Art. X, La. R.S. 40:2531, et seq iii

4 Case: Document: Page: 4 Date Filed: 04/01/2013 SUMMARY OF THE ARGUMENT The United States ( USA ) has based its Appellee Brief on only one of the four factors regarding whether Appellants are entitled to intervene as a matter of right, i.e., whether Appellants have a legally protectable interest in the underlying action. 1 The USA contends that Appellants do not have such an interest. Appellants submit that, quite simply, the USA is incorrect. The USA ignores the binding effect of the Consent Decree on all New Orleans Police Department ( NOPD ) officers as well as the effect of the injunction on all such officers. Further, the cases cited by the USA in fact support Appellants claim for intervention herein and establish that Appellants do, in fact, have the requisite legally protectible interest to support their claim for intervention herein. Moreover, the District Court abused its discretion in denying permissive intervention. ARGUMENT I. THE USA TOTALLY IGNORES THE EFFECT OF THE CONSENT DECREE AND THE INCORPORATED INJUNCTION ON THE 1 USA Br. p. 23. The USA does not dispute that Appellants Motion to Intervene was timely. (USA Br. p. 23). It has not addressed Appellants argument that Appellants are so situated that the disposition of this civil action may, as a practical matter, impair or impede the ability to protect their interest (FOP Br. p. 19.) Moreover it specifically states that it does not rely on the incorrect finding of the district court that the FOP did not establish that the USA would not adequately represent its interests on appeal (USA Br. p. 30). It is therefore relying solely on the legally protectible interest portion of the test for intervention. 1

5 Case: Document: Page: 5 Date Filed: 04/01/2013 MEMBERS OF THE NOPD AS AFFECTING A LEGALLY PROTECTIBLE INTEREST. The stated purpose of the Consent Decree 2 (USCA5 201, et seq.) is to...ensure that police services are delivered to the people of New Orleans in a manner that complies with the Constitution and laws of the United States. 3 Paragraph 1 of the Consent Decree echoes this statement: 1. This Agreement is effectuated pursuant to the authority granted to DOJ under Section 14141, the Safe Streets Act, and Title VI to seek declaratory or equitable relief to remedy a pattern or practice of conduct by law enforcement officers that deprives individuals of rights, privileges, or immunities secured by the Constitution or federal law. 4 The logical assumption, based on the pleadings filed by the USA and the City of New Orleans ( City ) is that everything contained in the Consent Decree is designed to promote constitutional policing. The Consent Decree contains language that specifically binds not only the parties, i.e. the USA and the City, but the latter s employees, i.e., the officers of the NOPD. Paragraph of the Consent Decree 8 provides: 2 The actual Consent Decree is not in the record on appeal. It is Record Document and the accompanying errata sheet is Record Document Joint Motion and Memorandum for Entry of Consent Decree, USCA , p. 2, USCA Consent Decree, USCA5 207, emphasis added. 2

6 Case: Document: Page: 6 Date Filed: 04/01/ This Agreement is binding upon all Parties hereto, by and through their officials, agents, employees, and successors. If the City establishes or reorganizes a government agency or entity whose function includes overseeing, regulating, accrediting, investigating, or otherwise reviewing the operations of NOPD or any aspect thereof, the City agrees to ensure these functions and entities are consistent with the terms of this Agreement and shall incorporate the terms of this Agreement into the oversight, regulatory, accreditation. investigation, or review functions of the government agency or entity as necessary to ensure consistency. 5 It then goes on to state, in Paragraph 9, agreement is enforceable by the parties and creates no third party rights: 9. This Agreement is enforceable only by the Parties. No person or entity is intended to be a third-party beneficiary of the provisions of this Agreement for purposes of any civil, criminal, or administrative action. Accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Agreement. 6 Finally, it establishes an injunction preventing the members of the NOPD who Appellants represent from violating any of its terms and conditions: 13. The Defendant, by and through its officials, agents, employees, and successors, is enjoined from engaging in conduct that deprives persons of rights, privileges, or immunities secured or protected by the laws of the United 5 Consent Decree, USCA5 208, emphasis added. 6 Id., emphasis added. 3

7 Case: Document: Page: 7 Date Filed: 04/01/2013 States. 7 Normally, when an injunction is sought against an individual or a group of individuals, those affected are entitled to participate in the litigation that gave rise to the injunction, not as amicus curiae but as full fledged participants, particularly in the situation where, as here, neither of the parties represent their interests. 8 This makes sense since it is their rights that are impacted and because an [a]n injunctive order is an extraordinary writ, enforceable by the power of contempt. Gunn v. University Committee to End War in Viet Nam, 399 U.S. 383, 389, 90 S.Ct. 2013, 2017, 26 L.Ed.2d 684 (1970). That did not happen here. As a result, the district court has enacted a sweeping Consent Decree with an injunction enforceable by the power of contempt against the members of the NOPD who were not parties to the litigation that gave rise to the Consent Decree! Appellants have previously shown in their Appellant brief how much of what is in the Consent Decree has absolutely nothing whatsoever to do with constitutional policing. 9 Yet the Consent Decree says what it says, however wrong it might be. 7 Consent Decree, USCA5 209, emphasis added. 8 This argument was addressed the Brief of Movers-Appellants starting at p. 23 and will not be repeated here. 9 See FOP Br. pp

8 Case: Document: Page: 8 Date Filed: 04/01/2013 Unless Appellants are allowed to intervene in this litigation to protect their interests they will have no means whatsoever to address the provisions of the Consent Decree while being bound by its terms under the penalty of contempt. II. APPELLANTS CLEARLY HAVE A LEGALLY PROTECTIBLE INTEREST WHICH ENTITLES THEM TO INTERVENE HEREIN. The USA contends that, despite the overwhelming case law to the contrary and the injunction hanging over the heads of the members of the NOPD, Appellants do not have the legally protectible interest to intervene herein. Appellee contends that the admitted property right in employment that all NOPD permanent employees enjoy is insufficient to provide a legally protectible interest. Appellee is incorrect. First, look at the injunction and the binding effect of the Consent Decree on all members of the NOPD. If any member of the NOPD violates the Consent Decree, he or she will be subject to the contempt power of the district court without any of the due process protections they currently enjoy as a result of their property right in their civil service employment. 10 This, standing alone, is a clear violation of their civil service protection and a clear impact on their property rights as civil servants. As stated by the Louisiana Supreme Court in Sanders v. Department of Health & Human Resources, 388 So.2d 768, 771 (La. 1980): 10 La. Const. Art. X, 8, 12; La. R.S. 40:2531, et seq. 5

9 Case: Document: Page: 9 Date Filed: 04/01/2013 The provisions of the state constitution involving the Civil Service, La. Const. art. 10, s 1, et seq., and the rules of the Commission are designed to secure adequate protection to public career employees from political discrimination. They embrace the merit system, and their intent is to preclude favoritism. The purpose of the civil service rules is to guarantee the security and welfare of public service. Louisiana Civil Service League v. Forbes, 258 La. 390, 246 So.2d 800 (1971). 11 The subjugation of the members of the NOPD to the contempt power of the district court for any violation whatsoever of a Consent Decree that is clearly overreaching and far beyond what is necessary to effect its stated purpose is an impingement of a legally protectible interest sufficient to require intervention. Second, the USA contends that the Consent Decree is somehow distinguishable from the Los Angeles consent decree case, United States v. City of Los Angeles, 288 F.3d 391 (9 th Cir. 2002), citing as the distinguishing factor that the police group which sought intervention was a recognized union, unlike appellants herein. 12 This argument misapprehends the basis for the decision in City of Los Angeles. stated: In reviewing the denial of intervention of the Police League, the Ninth Circuit 11 Sanders v. Department of Health & Human Resources, 388 So.2d 768, 771, emphasis added. 12 USA Br. pp

10 Case: Document: Page: 10 Date Filed: 04/01/2013 An applicant has a significant protectable interest in an action if (1) it asserts an interest that is protected under some law, and (2) there is a relationship between its legally protected interest and the plaintiff's claims. Donnelly, 159 F.3d at 409. The relationship requirement is met if the resolution of the plaintiff s claims actually will affect the applicant. Id. at 410. The interest test is not a clear-cut or bright-line rule, because [n]o specific legal or equitable interest need be established. Greene, 996 F.2d at 976. Instead, the interest test directs courts to make a practical, threshold inquiry, id., and is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process, County of Fresno v. Andrus, 622 F.2d 436, 438 (9th Cir.1980) (internal quotation marks and citation omitted). To determine whether the existing parties adequately represent an applicant's interest, we consider: (1) whether the interest of a present party is such that it will undoubtedly make all the intervenorss arguments; (2) whether the present party is capable and willing to make such arguments; and (3) whether the would-be intervenor would offer any necessary elements to the proceedings that other parties would neglect. The prospective intervenor bears the burden of demonstrating that existing parties do not adequately represent its interests. 13 The District Court had determined that the Police League did not have a protectible interest in the merits of the action, but that it had a protectible interest in 13 United States v. City of Los Angeles, 288 F.3d 391, 398. The question of whether the existing parties to this lawsuit adequately represent Appellants interests is addressed in the Brief of Appellants-Movants, pp

11 Case: Document: Page: 11 Date Filed: 04/01/2013 the proposed consent decree itself as a remedy. The Ninth Circuit found that the District Court erred with regard to the first proposition and that the mere fact that injunctive relief was sought against the members of the police league was sufficient to permit intervention: The district court erred as to the merits of the action. Of course, as the district court noted, the Police League and the officers it represents have no protectable interest in violating other individuals' constitutional rights. No one could seriously argue otherwise. However, the Police League claims a protectable interest because the complaint seeks injunctive relief against its member officers and raises factual allegations that its member officers committed unconstitutional acts in the line of duty. These allegations are sufficient to demonstrate that the Police League had a protectable interest in the merits phase of the litigation. 14 The request for injunctive relief and factual allegations against the Los Angeles police officers are the same factual allegations and the same relief prayed for by the USA herein and made part of the proposed Consent Decree. Clearly the Appellants, like the Police League, have a legally protectible interest in the merits of the underlying action sufficient to support intervention. Appellee s argument focuses on the second prong of the City of Los Angeles decision, namely, the interest of Appellants in the Consent Decree itself. Appellee 14 City of Los Angeles, supra, at , emphasis added. 8

12 Case: Document: Page: 12 Date Filed: 04/01/2013 argues that since Appellants are not a union with a Collective Bargaining Agreement (CBA ) that Appellants have no interest in the Consent Decree itself. That argument is incorrect. The Consent Decree clearly impacts the members of the NOPD through its mandates as well as through the contempt power of the Court, as discussed supra. Further, an association such as the FOP clearly has an interest in and standing to intervene on behalf of its members, as already addressed by Appellants in their Appellant Brief on pages Moreover, the contention that the Consent Decree does not impact the civil service protections of the NOPD members is not in accordance with the reality that exists. As previously discussed, the contempt power of the district court under the Consent Decree overrides all civil service protection of the members of the NOPD. Further, the mandates to change, for instance, promotion practices from the system mandated by the Louisiana Constitution to a system that injects subjective factors subverts one of the basic tenets of the Civil Service system. Article X, 7 of the Louisiana Constitution provides, in pertinent part, as follows: Permanent appointments and promotions in the classified state and city service shall be made only after certification by the appropriate department of civil service under a general system based upon merit, efficiency, fitness, and length of service, as ascertained by examination which, so 9

13 Case: Document: Page: 13 Date Filed: 04/01/2013 far as practical, shall be competitive. 15 The proposed reforms under the Consent Decree seek to inject a number of subjective criteria into the mix, such as requiring performance evaluations by the officer s direct supervisor instead of the objective examination mandated by the Louisiana Constitution. 16 As the Fourth Circuit stated: The entire scheme of Civil Service or the merit system for public employment is to insure that permanent appointments are obtained on merit, i. e., on the basis of competitive examinations. When the Civil Service employee obtains permanent status that employee becomes a part of a unique system with job security guaranteed by the Constitution itself. Owen v. New Orleans City Civil Service Commission, 371 So.2d 364, 366 (La. App. 4 th Cir., 1979), emphasis added. The Consent Decree removes the protections of the Louisiana Constitution and will permit the introduction of non-merit factors, in essence opening the door to the return of the spoils system which Civil Service was designed to prevent. The USA argues that Appellants will have the ability to comment on any proposed changes to NOPD policies and apparently claims that this will satisfy any need for intervention (USA Br. pp ). With respect this is not correct. The 15 La. Const. Article X, 7, emphasis added. 16 Consent Decree, Section XIV (A), USCA

14 Case: Document: Page: 14 Date Filed: 04/01/2013 ability to provide input as opposed to active participation in the confection of policies is really the difference between participating in litigation as an amicus curiae versus being a party. Further, the issue here is the contents of the Consent Decree itself and the ability to directly address its contents as a party, not just by comments. The USA also contends that since the district court left the door open for Appellants to intervene if their property rights were impacted somehow disposes of the issues before this Court (USA Br. p. 28). Again, this misconstrues the issues before this Court. Appellants contend that the entire Consent Decree as it now stands impacts the members of the NOPD as it governs virtually every facet of their employment, which is in and of itself a property right. It will govern their careers and promotional opportunities, as well as their day to day job as police officers. The district court was wrong to deny intervention on this basis. Third, the USA contends that Edwards v. City of Houston, 78 F.3d 983, 999 (5 th Cir. 1996) is inapplicable to this case because, it claims, the Consent Decree...does not infringe upon any officer s protected right or contradict Civil Service protections. (USA Br. p. 30). It further contends that since there is no Title VII preclusive effect that Edwards does not apply. Again, these arguments are incorrect. The preclusive effect here is in the Consent Decree itself. As discussed in Section I, supra, and in Appellant s Brief (FOP Br. pp ) the Consent Decree binds 11

15 Case: Document: Page: 15 Date Filed: 04/01/2013 Appellants and the members of the NOPD, none of whom have any right to enforce or contest any of its terms and, through the injunction, are subject to the contempt power of the district court. All of this was done without the participation as a party of anyone representing Appellants and the members of the NOPD. The Consent Decree at issue herein, as did the consent decree in Edwards, further directly interferes with the careers and promotional opportunities of police officers as it mandates deviation from the merit system enshrined in Art. X, 7 of the Louisiana Constitution. This factor, standing alone, was found by the Edwards court to establish a legally protectible interest sufficient to support intervention: [a] decree s prospective interference with promotion opportunities can justify intervention. Black Fire Fighters Ass'n of Dallas v. City of Dallas, 19 F.3d 992, 994 (5th Cir.1994) Edwards, supra, at Accordingly, the Edwards court permitted the intervention of the Houston police union, as well as a police association representing Airport police who also fell under the Edwards consent decree. It should be noted that in Edwards, as here, the district court permitted the union and the police association to participate in the fairness hearing even after they were denied intervention. The USA contends that here Appellants were permitted to participate fully in the fairness hearing, apparently suggesting that this is sufficient 12

16 Case: Document: Page: 16 Date Filed: 04/01/2013 participation (USA Br. pp. 19, 39). Pretermitting issues with the fairness hearing, such as the ability to conduct discovery, cross examine witnesses and the like, the mere ability to participate in the hearing does not obviate the right to intervene. This was recognized by this Court in Edwards when it not only reversed the district court and permitted intervention, but also vacated the district courts approval of the consent decree, ordered that the intervenors be granted sufficient time for discovery and ordered the district court to hold another fairness hearing. Edwards, supra, at The result here should be no different from Edwards, as both cases are essentially the same. III. THE DISTRICT COURT ABUSED ITS DISCRETION WHEN IT DENIED PERMISSIVE INTERVENTION. The USA claims that the district court was correct in denying permissive intervention as to have done so would have delayed the implementation of the Consent Decree and somehow prejudice the parties the citizens of New Orleans (USA Br. p. 238). Other than delay and the possibility of changes to the Consent Decree, it can cite no other reason for permissive intervention to be denied. 17 However, here we do not have a consent decree implemented one day after the fairness hearing as 17 The district court s incorrect denial of permissive intervention was addressed in Appellant s brief (FOP Br. p. 26) as the Consent Decree directly impacts Appellant s employment. 13

17 Case: Document: Page: 17 Date Filed: 04/01/2013 was the case in Edwards. Here, the fairness hearing was held on September 21, 2012 (USCA ). However, it was not until January 11, 2013, well over three months later and after lengthy negotiations between the district court, the USA and the City, that the district court entered the Consent Decree (USA Br. pp , Record Document ). The City has since moved to vacate the Consent Decree, which was opposed by the USA and denied by the district court (USA Br. p. 20). That denial is now the subject of a separate appeal to this Court (USA Br. p. 20). Given the delay between the fairness hearing and the entry of the Consent Decree and the apparent change of heart of the City with regard to the Consent Decree, it is difficult to see how the participation of Appellants herein would have a more adverse effect on the Consent Decree and its implementation. Moreover, as discussed infra, mere participation in the fairness hearing does not replace intervention and the right to participate as a party in this litigation that has such a great impact on Appellants and the members of the NOPD. CONCLUSION Intervenors have demonstrated that they fulfill all of the requirements of intervention as of right. Accordingly, this Court must direct the district court to 18 This document is not part of the record on appeal but is located within the district court record). 14

18 Case: Document: Page: 18 Date Filed: 04/01/2013 withdraw the Consent Decree, allow Intervenors to intervene with the rights of full parties; grant these new parties sufficient time for discovery to prepare to oppose the Consent Decree and hold another fairness hearing after such time for discovery at which the interests of all affected parties can be adequately represented. Alternatively, this Court should find that the district court abused its discretion in denying permissive intervention herein and grant Appellants permissive intervention. Respectfully submitted: /s/ C. Theodore Alpaugh, III C. THEODORE ALPAUGH (#02430) CLAUDE A. SCHLESINGER (#15042) GUSTE, BARNETT, SCHLESINGER, HENDERSON & ALPAUGH, L.L.P. 639 Loyola Avenue, Suite 2500 New Orleans, Louisiana Telephone: (504) Facsimile: (504) Attorneys for Movants - Appellants, CRESCENT CITY LODGE NO. 2, FRATERNAL ORDER OF POLICE, INCORPORATED and WALTER POWERS, JR., INDIVIDUALLY AND AS PRESIDENT OF CRESCENT CITY LODGE NO. 2, FRATERNAL ORDER OF POLICE, INCORPORATED 15

19 Case: Document: Page: 19 Date Filed: 04/01/2013 CERTIFICATE OF SERVICE I, C. Theodore Alpaugh, III, hereby certify that a copy of the above and foregoing Brief of Movants/Appellants has been served on all counsel by electronic transmission and by placing the same in the United States mail, postage prepaid and properly addressed to the specific counsel listed below who have requested service by U.S. mail this 1 st day of April, 2013: Richard Felipe Cortizas City Attorney's Office (New Orleans) 1300 Perdido Street 5 th Floor New Orleans, LA Emily Anna Gunston U. S. Department of Justice (Special Litigation Section) 950 Pennsylvania Ave., NW Washington, DC /s/ C. Theodore Alpaugh, III C. THEODORE ALPAUGH, III (#02430) GUSTE, BARNETT, SCHLESINGER, HENDERSON & ALPAUGH, L.L.P. 639 Loyola Avenue, Suite 2500 New Orleans, Louisiana Telephone: (504) Facsimile: (504) cta@gustebarnett.com Attorneys for Movants - Appellants, CRESCENT CITY LODGE NO. 2, FRATERNAL ORDER OF POLICE, INCORPORATED and WALTER POWERS, JR., INDIVIDUALLY AND AS PRESIDENT OF CRESCENT CITY LODGE NO. 2, FRATERNAL ORDER OF POLICE, INCORPORATED 16

20 Case: Document: Page: 20 Date Filed: 04/01/2013 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) Certificate of Compliance With Type-Volume Limitation, Typeface Requirements and Type Style Requirements 1. This brief complies with the type-volume limitation of FED. R. APP. P. 32(a)(7)(B) because: This brief contains 3430 words, excluding the parts of the brief exempted by FED. R. APP. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of FED. R. APP. P. 32(a)(5) and the type style requirements of FED. R. APP. P. 32(a)(6) because: This brief has been prepared in a proportionally spaced typeface using WordPerfect X6 in 14 point Times New Roman. /s/ C. Theodore Alpaugh, III C. THEODORE ALPAUGH, III (#02430) Attorney for Movants - Appellants, CRESCENT CITY LODGE NO. 2, FRATERNAL ORDER OF POLICE, INCORPORATED and WALTER POWERS, JR., INDIVIDUALLY AND AS PRESIDENT OF CRESCENT CITY LODGE NO. 2, FRATERNAL ORDER OF POLICE, INCORPORATED Dated: April 1,