Case: 13-30161 Document: 00512288882 Page: 1 Date Filed: 06/26/2013 Case No. 13-30161 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _________ THE UNITED STATES OF AMERICA Plaintiff - Appellee versus THE CITY OF NEW ORLEANS Defendant - Appellant _________ Appeal from the United States District Court for the Eastern District of Louisiana Case No. 12-cv-01924 The Honorable Susie Morgan, United States District Judge _________ APPELLANT'S ORIGINAL APPEAL BRIEF _________ HARRY ROSENBERG (#11465) PHELPS DUNBAR LLP NEW ORLEANS, LA 70130 TELEPHONE: (504) 584-9219 FASCIMILE: (504) 568-9130 EMAIL: ROSEBEH@phelps.com SHARONDA R. WILLIAMS (#28809) CITY ATTORNEY 1300 PERDIDO STREET ROOM 5E03 - CITY HALL NEW ORLEANS, LA 70112 TELEPHONE: (504) 658-9800 FASCIMILE: (504) 658-9868 EMAIL: shrwilliams@nola.gov i Case: 13-30161 Document: 00512288882 Page: 2 Date Filed: 06/26/2013 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Judges of this Court may evaluate possible disqualification or recusal. The interested parties and their attorneys are as follows: United States of America - Plaintiff-Appellee: April J. Anderson U.S. Department of Justice (Civil Rights Division - Appellate Section) RFK 3724 P.O. Box 14403, Ben Franklin Station Washington, DC 20044-4403 Direct: 202-616-9405 Email: april.anderson@usdoj.gov Fax: 202-524-8490 Roy L Austin, Jr. U. S. Department of Justice (Civil Rights Division) 950 Pennsylvania Ave., NW Washington, DC 20530 202-514-3845 202-514-0293 (fax) roy.austin@usdoj.gov Emily Anna Gunston U. S. Department of Justice (Special Litigation Section) 950 Pennsylvania Ave., NW Washington, DC 20530 202-305-3203 202-514-6903 (fax) emily.gunston@usdoj.gov ii Case: 13-30161 Document: 00512288882 Page: 3 Date Filed: 06/26/2013 Christy E. Lopez U. S. Department of Justice (Civil Rights Division) 950 Pennsylvania Ave., NW Washington, DC 20530 202-514-6255 christy.lopez@usdoj.gov Angela Macdonald Miller U.S. Department of Justice (Civil Rights Division - Appellate Section) RFK - 3720 P.O. Box 14403, Ben Franklin Station Washington, DC 20044-4403 Direct: 202-514-4541 Fax: 202-514-8490 Email: angela.miller2@usdoj.gov Stephen C Parker U. S. Attorney's Office (Memphis) 167 N. Main Street, Suite 800 Memphis, TN 38103 901-544-4231 901-544-4230 (fax) steve.parker@usdoj.gov Thomas E. Perez U. S. Department of Justice (Civil Rights Division) 950 Pennsylvania Ave., NW Washington, DC 20530 (202) 514-4883 Corey M. Sanders U. S. Department of Justice (Civil Rights Division) 950 Pennsylvania Ave., NW Washington, DC 20530 202-514-6255 corey.sanders@usdoj.gov iii Case: 13-30161 Document: 00512288882 Page: 4 Date Filed: 06/26/2013 Jonathan M. Smith U. S. Department of Justice (Civil Rights Division) 950 Pennsylvania Ave., NW Washington, DC 20530 202-514-6255 Jessica Dunsay Silver U.S. Department of Justice (Civil Rights Division - Appellate Section) P.O. Box 14403 Ben Franklin Station Washington, DC 20044-4403 Direct: 202-514-2195 Fax: 202-514-8490 Email: jessica.d.silver@usdoj.gov Jude Volek U. S. Department of Justice (Civil Rights Division) Housing and Civil Enforcement Section 950 Pennsylvania Ave., NW Washington, DC 20530 Jude.Volek@usdoj.gov City of New Orleans - Defendant-Appellant Byron R. Arthur Arthur Law Firm, LLC 365 Canal St., Suite 1700 New Orleans, LA 70130 504-457-7936 5042659485 (fax) byron@thearthurlawfirm.com Brian J. Capitelli Capitelli & Wicker Energy Centre 1100 Poydras St., Suite 2950 New Orleans, LA 70163 504-582-2425 brian@capitelliandwicker.com iv Case: 13-30161 Document: 00512288882 Ralph Capitelli Capitelli & Wicker Energy Centre 1100 Poydras St., Suite 2950 New Orleans, LA 70163 (504) 582-2425 rc@capitelliandwicker.com Churita H. Hansell City Attorney's Office (New Orleans) 1300 Perdido Street 5th Floor New Orleans, LA 70112 504-658-9850 chhansell@nola.gov Christy C. Harowski City Attorney's Office (New Orleans) 1300 Perdido Street 5th Floor New Orleans, LA 70112 504-658-9854 ccharowski@nola.gov Mary Katherine Kaufman City Attorney's Office (New Orleans) 1300 Perdido Street 5th Floor New Orleans, LA 70112 504-658-9800 mktaylor@nola.gov Harry Rosenberg Phelps Dunbar LLP 365 Canal Street, Suite 2000 New Orleans, LA 70130 (504) 584-9219 ROSENBEH@phelps.com v Page: 5 Date Filed: 06/26/2013 Case: 13-30161 Document: 00512288882 Adam J. Swensek City Attorney's Office (New Orleans) 1300 Perdido Street 5th Floor New Orleans, LA 70112 504-658-9910 ajswensek@nola.gov Sharonda R. Williams City Attorney's Office (New Orleans) 1300 Perdido Street 5th Floor New Orleans, LA 70112 504-658-9920 shrwilliams@nola.gov Community United for Change Davida Finger Loyola Law School Clinic 7214 St. Charles Ave. New Orleans, LA 70118 504-861-5596 dfinger@loyno.edu William Patrick Quigley Loyola Law School Clinic 7214 St. Charles Ave. New Orleans, LA 70118 (504) 861-5590 duprestars@yahoo.com vi Page: 6 Date Filed: 06/26/2013 Case: 13-30161 Document: 00512288882 Page: 7 Date Filed: 06/26/2013 Crescent City Lodge No. 2, Fraternal Order of Police, Incorporated Chester Theodore Alpaugh, III Guste, Barnett, Schlesinger, Henderson & Alpaugh 639 Loyola Ave. Suite 2500 New Orleans, LA 70113-7103 504-529-4141 504-561-0326 (fax) cta@gustebarnett.com Claude A. Schlesinger Guste, Barnett, Schlesinger, Henderson & Alpaugh 639 Loyola Ave. Suite 2500 New Orleans, LA 70113-7103 (504) 529-4141 cas@gustebarnett.com Michael Glasser individually and as President of the Police Association of New Orleans Eric J. Hessler, Attorney at Law 2802 Tulane Ave Suite 101 New Orleans, LA 70119 504-942-2454 hessler.law@gmail.com Susan Hutson individually and in her official capacity as the Independent Police Monitor for the City of New Orleans vii Case: 13-30161 Document: 00512288882 Office of the Independent Police Monitor Darius Charney Center for Constitutional Rights 666 Broadway 7th Floor New York, NY 10012 212-614-6464 E. Vincent Warren Center for Constitutional Rights 666 Broadway 7th Floor New York, NY 10012 212-614-6464 John S. Williams The Law Offices of John S. Williams, LLC 1600 Oretha Castle Haley Blvd. New Orleans, LA 70113 504-486-0300 jwilliams@jswlawoffices.com Police Association of New Orleans Eric John Hessler Eric J. Hessler, Attorney at Law 2802 Tulane Ave Suite 101 New Orleans, LA 70119 504-942-2454 hessler.law@gmail.com viii Page: 8 Date Filed: 06/26/2013 Case: 13-30161 Document: 00512288882 Walter Powers, Jr. Chester Theodore Alpaugh, III Guste, Barnett, Schlesinger, Henderson & Alpaugh 639 Loyola Ave. Suite 2500 New Orleans, LA 70113-7103 504-529-4141 504-561-0326 (fax) cta@gustebarnett.com Claude A. Schlesinger Guste, Barnett, Schlesinger, Henderson & Alpaugh 639 Loyola Ave. Suite 2500 New Orleans, LA 70113-7103 (504) 529-4141 cas@gustebarnett.com ix Page: 9 Date Filed: 06/26/2013 Case: 13-30161 Document: 00512288882 Page: 10 Date Filed: 06/26/2013 STATEMENT REGARDING ORAL ARGUIMENT The City of New Orleans respectfully requests oral argument. This appeal involves the enforceability of a consent decree requiring costly wholesale reforms to the New Orleans Police Department. In addition, the District Court's judgment contravenes settled legal principles and statutory law. Oral discussion of the facts, legal issues, precedent, and public policy would benefit the Court. x Case: 13-30161 Document: 00512288882 Page: 11 Date Filed: 06/26/2013 TABLE OF CONTENTS Page CERTIFICATE OF INTERESTED PERSONS ....................................................... ii STATEMENT REGARDING ORAL ARGUMENT ..............................................xi TABLE OF CONTENTS ..........................................................................................xi TABLE OF AUTHORITIES ................................................................................. xiii JURISDICTIONAL STATEMENT .......................................................................... 1 STATEMENT OF ISSUES PRESENTED FOR REVIEW ...................................... 1 SUMMARY OF THE ARGUMENT ........................................................................ 2 STATEMENT OF THE CASE .................................................................................. 5 STATEMENT OF FACTS ........................................................................................ 9 A. Mayor Landrieu, Superintendent Serpas and the Reform of NOPD................................................................................... 9 B. The NOPD Consent Decree ................................................................ 10 C. The OPP Consent Decree .................................................................... 12 D. Sal Perricone: The Genesis of Aorta of Corruption ............................ 14 ARGUMENT ........................................................................................................... 18 1. STANDARD OF REVIEW ................................................................ 18 xi Case: 13-30161 Document: 00512288882 Page: 12 Date Filed: 06/26/2013 2. THE CITY DID NOT CONSENT TO OPP REFORM AND THE NOPD CONSENT DECREE. .......................................... 19 3. THE CITY'S INABILITY TO AFFORD OPP REFORM AND THE NOPD CONSENT DECREE JUSTIFIES RELIEF UNDER RULE 60(B) .......................................................... 22 4. THE SECONDARY EMPLOYMENT PROVISIONS OF THE NOPD CONSENT DECREE POTENTIALLY VIOLATE THE FLSA AND NEWLY-ENACTED LA R.S. 33:2239................................................................................. 25 5. THE INVESTIGATION AND NEGOTIATIONS WITH DOJ WERE TAINTED FROM THE OUTSET BY THE ACTIONS OF DOJ EMPLOYEES ........................................... 28 6. PROCEDURAL DEFICIENCIES TAINTED THE PROCESS AND FURTHER ERODED "CONSENT" ........................................ 31 CONCLUSION ........................................................................................................ 32 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) ...................................... 33 xii Case: 13-30161 Document: 00512288882 Page: 13 Date Filed: 06/26/2013 TABLE OF AUTHORITIES Cases Page Christensen v. Harris County, 529 U.S. 576 (2000) ............................................... 27 City of Burbank v. Gen. Elec. Co., 329 F.2d 825 (9th Cir. 1964) ..................... 31-32 Dandridge v. Jefferson Parish Sch. Bd., No. 64-14801, 2009 WL 24462 (E.D. La. Jan. 5, 2009) .................................................................................. 31 Gen. Universal Sys., Inc. v. Lee, 379 F. 3d 131 (5th Cir. 2004) ........................28, 30 Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 244 (1984) ............................ 24 Hogan v. Allstate Beverage Co., 821 F. Supp. 2d 1274 (M.D. Ala. 2011) ............. 19 Ibarra v. Tex. Emp. Comm'n, 823 F.2d 873 (5th Cir. 1987) ............................. 26-27 Info-Hold, Inc. v. Sound Mech., Inc., 538 F.3d 448, 455-56 (6th Cir. 2008) .......... 28 Jeff D. v. Kempthorne, 365 F.3d 844 (9th Cir. 2004) ................................................ 1 John B. v. Emkes, 710 F.3d 394 (6th Cir. 2013) ...................................................... 19 Jones v. Gusman, No. 12-cv-859 (E.D. La.) ......................................................12, 13 Pierson v. Dormire, 484 F.3d 486 (8th Cir. 2007) ................................................. 19 Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992) ................. 18-19, 22-23 Udey v. Kastner, 805 F.2d 1218 (5th Cir. 1986) ..................................................... 23 xiii Case: 13-30161 Document: 00512288882 Page: 14 Date Filed: 06/26/2013 United States v.Bowen, No. 10-CR-204 (E.D. La.) ................................................ 18 United States v. Mouton, 2013 WL 2455934 (E.D. La. June 5, 2013) .......................................................... 14, 17-18, 29-30 Statutory Authorities U.S. Const. amend. V................................................................................................. 1 U.S. Const. amend. XIV ............................................................................................ 1 28 U.S.C. ? 1291 ........................................................................................................ 1 29 U.S.C. ? 207(p)(1)............................................................................................... 27 29 C.F.R. ? 553.227(d) ............................................................................................ 27 Fed. R. App. Proc. 4(b) .............................................................................................. 1 Fed. R. Civ. Proc. 60(b) ............................................................... 1, 18, 22, 26, 28-30 La. R.S. 33:2239 ................................................................................................ 25-26 Miscellaneous Black's Law Dictionary 441 (8th ed.2004) .............................................................. 29 xiv Case: 13-30161 Document: 00512288882 Page: 15 Date Filed: 06/26/2013 JURISDICTIONAL STATEMENT Jurisdiction of this Court is proper under 28 U.S.C. ? 1291 because the District Court's denial of Appellant's Motion to Vacate Consent Decree qualifies as an appealable final judgment. See Jeff D. v. Kempthorne, 365 F.3d 844, 850 (9th Cir. 2004). Notice of appeal was filed in accordance with Rule 4(b) of the Federal Rules of Appellate Procedure. STATEMENT OF ISSUES PRESENTED FOR REVIEW 1. When it agreed to transform NOPD into a stellar police department, the City did not know it would simultaneously be required to fund a Consent Decree involving the Orleans Parish Prison (OPP) that could potentially cost tens of millions of dollars. The U.S. Department of Justice (DOJ) did. The City may now be forced to fund massive reforms at the troubled municipal jail, rendering it unable to fund the reforms at NOPD. Disregarding well-settled legal standards - and ignoring still-undisclosed misconduct by senior DOJ representatives - the District Court erroneously entered the Consent Decree over the objection of the City. The District Court committed reversible error by adopting, then refusing to vacate under Rule 60(b), a consent decree to which the City did not consent. 2. The District Court erred by precluding consideration of the merits of the controversy, violating the City's Constitutional right to due process guaranteed by the Fifth and Fourteenth Amendments. 1 Case: 13-30161 Document: 00512288882 Page: 16 Date Filed: 06/26/2013 SUMMARY OF THE ARGUMENT A consent decree can exist only when both parties consent. Here, one party did not. When it purportedly agreed to a judgment providing for reforms of NOPD, the City did not know it could be compelled to fund a budget-busting federal Consent Decree involving OPP. The City also did not know the full extent to which it simultaneously was implementing the personal agenda of DOJ officials whose misconduct is the subject of an ongoing internal and potentially criminal investigation. Further, the City did not know that it was assuming obligations that may require it to violate statutory law. Despite this confluence of legal and factual impediments, the District Court - over the City's objection and without a contradictory hearing - entered a Consent Decree on January 13, 2013 to which the City did not agree. In so doing, the District Court committed fundamental and plain error. Based on those reasons, the District Court's judgment should be reversed and the DOJ lawsuit should be adjudicated after trial. No one disputes that the people of New Orleans deserve a world-class police force. But DOJ seeks more than the citizens of New Orleans financially can bear. Worse, DOJ obtained the City's initial acquiescence to the NOPD Consent Decree through ambush. DOJ had been investigating OPP for years and, as a result, occupied unique position to dictate the scope and cost of prison reforms. Yet DOJ, fully aware of the City's precarious finances, did not inform the City of the 2 Case: 13-30161 Document: 00512288882 Page: 17 Date Filed: 06/26/2013 potential cost of the OPP Consent Decree sought by DOJ until it had secured the City's agreement to implement the NOPD Consent Decree. DOJ's timing was not happenstance. In fact, it was intentional. The City, which must pay for the NOPD Consent Decree and likely the OPP Consent Decree despite having no operational control over the mismanaged prison, never agreed to fund (and cannot fund) major institutional reform on two fronts while simultaneously meeting its other obligations to the citizens of New Orleans. Something must give. The reforms mandated by the NOPD Consent Decree, tainted from the outset by a rogue DOJ negotiator and approved without key procedural safeguards, far exceed what the Constitution requires and what the City of New Orleans reasonably can afford. And to that end, even DOJ - before it abandoned the partnership that prompted the City's consent to the NOPD Decree - acknowledged that the current City administration has ushered in significant reform since broaching federal involvement in 2010. The secondary-employment reforms in the Consent Decree are particularly troubling and, standing alone, warrant reversal. First, they expose the City to potential liability under the Fair Labor Standards Act, 29 U.S.C. ? 201 et seq., and appear to run afoul of a recently enacted state law. More troublingly, they reflect the machinations of disgraced former federal prosecutor Sal Perricone, who posted 3 Case: 13-30161 Document: 00512288882 Page: 18 Date Filed: 06/26/2013 anonymous online attacks of the paid-detail system and NOPD leaders while serving a key position in the federal investigation of NOPD and the ensuing negotiation of the proposed Consent Decree. While DOJ may argue that some of Perricone's misconduct was publicly exposed a few months before the City approved the initial iteration of the Consent Decree (which was not approved contemporaneously by the District Court), the actions of Perricone and other DOJ personnel remain under investigation. Multiple federal district judges in this circuit, in strongly worded opinions, have questioned the actions of Perricone and/or implored DOJ to engage in a meaningful assessment of Perricone and some of his DOJ colleagues. The ever-expanding misconduct by DOJ, the depth and breadth of which still have not yet been disclosed, vitiated the City's agreement to the Consent Decree and afforded proper grounds under Rule 60(b) to vacate the District Court's order adopting a Consent Decree in the absence of consent. Simply stated, the District Court erred when it resurrected a Consent Decree that it had previously rejected and that the City disavowed for good reasons. The lower court's unorthodox approach contravened basic notions of due process and endorsed a perverse precedent in which consent can arise when none exists. In light of these legal errors and attendant concerns, the District Court's adoption of the Consent Decree over the City's objection - coupled with the District Court's subsequent decision not to vacate an inherently flawed and impermissible order - 4 Case: 13-30161 Document: 00512288882 Page: 19 Date Filed: 06/26/2013 represents an abuse of discretion and legal error. As a result, the City wrongfully was deprived of the ability to litigate the DOJ's allegations, depriving it on basic due process. The City respectfully requests this Court to amend the lower court's errors. STATEMENT OF THE CASE In 2010, New Orleans Mayor Mitch Landrieu and newly appointed Police Superintendent Ronal Serpas instituted a series of sweeping reforms to NOPD. As part of that effort, Mayor Landrieu invited DOJ to partner with the City in an effort to improve the department. USCA5 (Supp. 2) 3874. ` On March 16, 2011 - with many of the Mayor's reforms either in planning stages or underway - DOJ issued a 158-page report detailing the results of its investigation into NOPD and providing a number of recommendations to improve practices within the department. USCA5 31-188. DOJ provided its first draft of a proposed consent decree in October 2011. USCA5 (Supp. 2) 4108 at ? 6. The City and DOJ then began protracted negotiations over the terms of the proposal. USCA5 (Supp. 2) 4108 at ? 7; 4294:25-4295-4. On July 24, 2012, DOJ filed the underlying lawsuit against the City. USCA5 19-30. The Complaint alleges conduct by NOPD that subjects individuals to excessive force, unlawful searches and seizures, and discriminatory policing practices in violation of the Constitution and federal civil-rights statutes. Id. On 5 Case: 13-30161 Document: 00512288882 Page: 20 Date Filed: 06/26/2013 the same day, DOJ and the City jointly moved for entry of a Consent Decree. USCA5 190-200. This action by the City was part of its continuing efforts to foster better police protocol and what it incorrectly believed was a partnership with DOJ. See USCA5 4107 at ? 3. On September 21, 2012, the District Court held a Fairness Hearing to determine whether the Consent Decree was fair, adequate, and reasonable. USCA5 1672-74. During this hearing, the District Court suspended the Federal Rules of Evidence and Civil Procedure, refused to permit cross-examination of witnesses, and accepted voluminous hearsay evidence over the objection of the City. See USCA5 (Supp. 2) 4171:23-4173:22; 4175:20-23; see also USCA5 1667, 1672-74. The District Court did not immediately adopt the Consent Decree. Rather, the District Court submitted 129 questions to DOJ and the City raising concerns about the proposed Consent Decree/judgment. USCA5 (Supp. 2) 2263 at ? 39; 2551-63. At status conferences throughout the fall of 2012, the District Court advised the parties that it would not enter the original Consent Decree without certain modifications - a clear acknowledgement that the original Consent Decree submitted by DOJ and the City was objectionable in the District Court's eyes. USCA5 (Supp. 2) 2263-2265 at ?? 39, 45-57; 2576; 2578-3208; 4110 at ? 15. Thereafter, DOJ and the City, with the District Court's direct involvement, 6 Case: 13-30161 Document: 00512288882 Page: 21 Date Filed: 06/26/2013 engaged in substantial negotiations and circulated numerous revised drafts of the proposed agreement. See id. At every stage of the negotiation, counsel for the City advised the Court and DOJ that finances were an issue and that the City could not add a single dollar to the cost of the NOPD Consent Decree. USCA5 (Supp. 2) 4108 at ? 7; 4110 at ? 19. At the status conference on January 11, 2013, the City notified the District Court of the City's decision not to proceed with executing the "revised" Consent Decree until certain issues could be resolved. USCA5 (Supp. 2) 2265 at ? 58; 4110-11 at ? 19. The City requested permission to withdraw its consent to the joint motion and withdraw from the Consent Decree for reasons conveyed to the District Court. USCA5 (Supp. 2) 2265 at ? 58; 4110-11 at ? 19. Counsel for the City asked the District Court for a court reporter to memorialize its motion and to state its reasons as part of a transcribed record. USCA5 (Supp. 2) 2265 at ? 58; 4110-11 at ? 19. The District Court denied the City's request. USCA5 (Supp. 2) 4111 ? 19. Then, despite previous refusals to sign the original Consent Decree as submitted on July 24, 2012, the District Court changed course, retreated from its longstanding insistence that changes to the Consent Decree were necessary, and signed an Order approving the original version of the Consent Decree on January 11, 2013. USCA5 (Supp. 2) 2265 at ? 58; 4110-11 at ? 19. Notably, the District Court continued to revise the Consent Decree even after entering the January 11, 2013 7 Case: 13-30161 Document: 00512288882 Page: 22 Date Filed: 06/26/2013 Order approving the original Consent Decree. USCA5 (Supp. 2) 2265-66 at ?? 5866; 3290-3756. None of these facts are in dispute. On February 15, 2013, the City filed a Motion to Vacate Consent Decree in conformity with Rule 60 of the Federal Rules of Civil Procedure. USCA5 (Supp. 2) 2051-83; 4066-77. Not surprisingly, DOJ opposed the City's motion. USCA5 (Supp. 2) 3830-73. On May 23, 2013, the District Court issued an Order and Reasons denying the City's motion to vacate the unorthodox decree and implementing the Consent Decree even though only one side acquiesced to the purported consensual judgment. USCA5 (Supp. 2) 4595-4642. followed. 8 This appeal Case: 13-30161 Document: 00512288882 Page: 23 Date Filed: 06/26/2013 STATEMENT OF FACTS A. Mayor Landrieu, Superintendent Serpas, and the Reform of NOPD. Since taking office in 2010, Mayor Landrieu and Superintendent Serpas have worked tirelessly to reform NOPD. The City has made major strides in bringing NOPD into compliance with not only Constitutional minimums, but nationwide best practices. In fact, DOJ's 2011 investigation report - the fountainhead of the current Consent Decree - tempers its criticism of past failures at NOPD with repeated praise for the significant progress made by the Landrieu administration: ? "As we conducted our investigation, NOPD had begun to make significant and long overdue changes to its force policies regarding how officers will be trained to use force, and how force will be reported, investigated, and reviewed." USCA5 38. ? "In November 2010 . . . the Superintendent advised . . . that officers would no longer make arrests based on outstanding traffic or misdemeanor warrants from neighboring parishes . . . . We believe that with this pledge, the Department has taken a significant and positive step." USCA5 39. ? "[T]he Superintendent has prioritized the wholesale remaking of training in his organization strategy to improve NOPD." USCA5 45. ? "In the past few months, Superintendent Serpas has begun to implement measures meant to correct and prevent some of the negative impact of the Detail system." USCA5 47. ? "NOPD is making efforts to improve its complaint investigation programs. The Department has made innovative changes . . . and has implemented long-overdue corrections to basic policies. . . . These changes mark a good beginning . . . ." USCA5 49. 9 Case: 13-30161 Document: 00512288882 Page: 24 Date Filed: 06/26/2013 ? "[I]n August 2010, the Superintendent released a 65-point plan to reform the Department, which opened with a commitment to prioritize community policing and to 'listen, collaborate, and respond proactively.' The Department has implemented or announced plans to implement a number of community outreach programs, including: citizen callbacks regarding quality of service; Community Outreach Coordinator sergeants in each district; an expanded citizen academy; a partnership with clergy; and a program for bilingual outreach on public safety issues. While these initiative are either in the planning stages or too new to have allowed for close assessment, we commend the Department's stated interest and focus on genuinely assessing current attitudes toward the police, reaching out to diverse segments of the city, and enhancing community relations." USCA5 50. These initiatives by the City were undertaken unilaterally before and after DOJ released its investigation findings. They continue today. In 2011, for example, Mayor Landrieu and Superintendent Serpas dramatically overhauled the paid-detail system by creating an independent central office with oversight responsibility for all paid details. USCA5 (Supp. 2) 3906-08. Without the need for a court-ordered Consent Decree, the City's Police Department is stronger, more accountable and responsive to the public, and more transparent than ever before. B. The NOPD Consent Decree. The City believed (erroneously) that it was collaborating with DOJ to produce a plan that would bolster the City's efforts to transform the NOPD into a first-rate police force that would be well-received by all segments of the community. See USCA5 (Supp. 2) 4107 at ? 3. As such, the Consent Decree goes 10 Case: 13-30161 Document: 00512288882 Page: 25 Date Filed: 06/26/2013 well beyond constitutionally minimal safeguards, offering instead a sweeping - albeit costly - agenda of reform. The Consent Decree, for example, mandates a "reliable, comprehensive, and representative survey of the members of the New Orleans community regarding their experience with and perceptions of NOPD and public safety" to be conducted every two years. USCA5 267 at ? 230. The Consent Decree provides for extensive regulations of recruiting practices and the secondary employment system - matters not generally within the ambit of federal oversight. USCA5 268-70 at ?? 234-44; 289-99 at ?? 331-74. The Consent Decree also contains numerous provisions addressing custodial interrogations, even though the DOJ investigation found nothing unconstitutional about NOPD's past practices. USCA5 51-52; 25152 at ?? 163-70. The City's voluntary actions demonstrate a deep commitment to transforming NOPD into a police force the citizens of New Orleans deserve. Moreover, the City's initiatives reveal that meaningful reform has been and can be achieved without judicial intervention or DOJ oversight. To that end, the Consent Decree far exceeds what the Constitution requires. Of equal import is the fact that the proffered NOPD Consent Decree, in many respects, mirrors and supplements reforms that were undertaken at the behest of Mayor Landrieu years before the DOJ filed the underlying lawsuit. See, e.g., USCA5 (Supp. 2) 3906-08. 11 Case: 13-30161 C. Document: 00512288882 Page: 26 Date Filed: 06/26/2013 The OPP Consent Decree. At the same time DOJ was working with City leaders on the NOPD Consent Decree, the same DOJ lawyers were negotiating with Orleans Parish Sheriff Marlin Gusman for a consent decree aimed to correct allegedly unconstitutional conditions at the Orleans Parish Prison. See USCA5 (Supp. 2) 4109-10 at ?? 7, 17. The City, while responsible to provide funding for OPP, does not exercise operational control over the prison and was not privy to the full panoply of negotiations between DOJ and the Sheriff . See USCA5 (Supp. 2) 4110 at ? 17. Unbeknownst to City leaders, the prison under Sheriff Gusman's watch had deteriorated into "the most dysfunctional jail" that the DOJ's Chief of Special Litigation had ever seen. See USCA5 (Supp. 2) 4110 at ? 18. The City harbors serious and reasonable reservations about pouring millions of public dollars into an institution whose stewards have permitted such dysfunction and neglect. See USCA5 (Supp. 2) 4110 at ? 18. Indeed the City even asked DOJ to appoint a receiver to operate the prison. Id.1 On July 19, 2011, as City leaders and lawyers were scrambling to finalize the NOPD Consent Decree, Sheriff Gusman requested $22.5 million in additional funding for the prison without providing any documentation to support his request 1 The City eventually filed a motion for the District Court handling the OPP litigation to appoint a receiver to operate the prison. Jones v. Gusman, No. 12-cv-859, R. Doc. 392. 12 Case: 13-30161 Document: 00512288882 Page: 27 Date Filed: 06/26/2013 to double his annual budget.2 USCA5 (Supp. 2) 3897. The only line item in this request that even references the proposed OPP Consent Decree - which the Sheriff did not agree to until December 2011 - is a $1 million request to "[r]eplace worn equipment and acquire new equipment" without any explanation of what equipment would be needed for the Consent Decree. Id. Regardless, DOJ officials did not address the City's requests for cost estimates regarding a possible OPP Consent Decree (but plainly should have in light of the City's repeated concerns over costs) until one month after the initial NOPD Consent Decree was submitted. At that juncture, DOJ personnel, having just submitted the proposed NOPD Consent Decree, advised the City for the first time that OPP could reasonably require an additional $12 million in funding for the 2013 fiscal year alone. USCA5 (Supp. 2) 3992-93; see also USCA5 (Supp. 2) 4108-10 at ?? 7, 17-18. Not only was this was the first indication from DOJ that the price tag for OPP would be so prohibitively expensive (and likely could be higher), but DOJ's cost projections dovetailed with the Sheriff's 2013 funding request. See USCA5 (Supp. 2) 399293. Both DOJ and the Sheriff, without providing essential documentation, now seek to mire the City in debt. 2 While the Sheriff, so far, has yet to provide evidence showing the need for increased funding regarding the OPP Consent Decree, the question of cost is still being considered by the district judge presiding over the OPP proceedings. See Jones v. Gusman, No 12-cv-859 (E.D. La.), R. Doc. 481. 13 Case: 13-30161 Document: 00512288882 Page: 28 Date Filed: 06/26/2013 From the outset of Mayor Landrieu's NOPD reform initiatives, the City insisted that the budget was strained and that it could not pay for changes to NOPD without additional funds. USCA5 (Supp. 2) 4108 at ? 7; 4110 at ? 19. In fact, the City repeatedly and unsuccessfully requested assistance with funding from DOJ to implement the reforms. USCA5 (Supp. 2) 4107-09 at ?? 3, 5, 13, 17-18. Fully aware of the City's precarious financial situation, DOJ did not broach the potential cost of the OPP reforms until after leaders were beguiled into submitting the initial NOPD Consent Decree. USCA5 (Supp. 2) 3992-93; 4108 at ? 7. The timing is deeply suspect. D. Sal Perricone: The Genesis of the "Aorta of Corruption." The DOJ Civil Rights Division's investigation that led to DOJ's March 2011 report was driven by Assistant U.S. Attorney Sal Perricone, whose animus against the City, NOPD, Mayor Landrieu, and Superintendent Serpas was not fully understood or revealed (and is still being investigated by DOJ at the request of several District Court judges) when the City entered into the NOPD Consent Decree in July 2012. See USCA5 (Supp. 2) 4108-09 at ?? 8-9; U.S. v. Mouton, No. 11-48, 2013 WL 2455934 (E.D. La. June 5, 2013). Perricone was a former NOPD officer who applied unsuccessfully in 2010 for the position now occupied by Superintendent Serpas. See USCA5 (Supp. 2) 2085-86; see also USCA5 (Supp. 2) 4107-08 at ?? 3, 5, 8. As an employee of DOJ, Perricone served as the "point14 Case: 13-30161 Document: 00512288882 Page: 29 Date Filed: 06/26/2013 person" and acted as a "key" liaison between the United States Attorney's Office in New Orleans and the DOJ investigative team. USCA5 (Supp. 2) 2087-88 (Supp. 2); see also USCA5 4107-08 at ?? 3, 5, 8 (Supp. 2). Perricone was directly involved in the May 17, 2010 meeting when the parameters of the DOJ's investigation were established. USCA5 4107 at ? 3 (Supp. 2). He was also one of the harshest critics of NOPD's paid-detail program, which he termed the "aorta of corruption" at NOPD - a metaphor adopted by DOJ in its report and quoted by topranking DOJ officials. USCA5 47; USCA5 (Supp. 2) 2087; 4108 at ? 8. Perricone's status as a former NOPD officer undoubtedly gave him heightened credibility and influence among those crafting DOJ's recommendations. See USCA5 (Supp. 2) 4108 at ? 8. But at the same time he was helping to shape the scope and substance of DOJ's investigation, Perricone was waging a secret campaign to undermine the City, NOPD, and the man who had beaten him for the Superintendent job. See generally USCA5 (Supp. 2) 2089-95. In March 2012, Perricone admitted to posting hundreds of venomous comments on the Times-Picayune's website, nola.com. USCA5 (Supp. 2) 2090. Posting under various pseudonyms - some of which were not disclosed until after the City signed the Consent Decree - Perricone initially sought to undermine Superintendent Serpas and bolster his own job prospects. See, e.g., USCA5 2094, 2097, 2116, 2122 (Supp. 2). Then, more troublingly, Perricone used the public 15 Case: 13-30161 Document: 00512288882 Page: 30 Date Filed: 06/26/2013 medium to influence public debate and press his personal agenda, despite serving as the federal liaison. See generally USCA (Supp. 2) 2061-62 (collecting comments); USCA5 (Supp. 2) 4108 at ? 8. The paid-detail issue - which represents one of the most problematic aspects of the NOPD Consent Decree even though it does not represent a matter of constitutional (or even federal) concern - was among his favorite targets: "Vern you are soo right!! When the DOJ reported in March that the detail system inside the NOPD was the aorta of corruption, I thought it was hyperbole. But not anymore. Since then, we have learned how endemic the outside detail system worked and operated inside our police department. . . . The DOJ can't get here soon enough. . . ." USCA5 (Supp. 2) 2253; see also USCA5 (Supp. 2) 2061-62. Perricone's vitriol translated directly into his work as the federal liaison. USCA5 (Supp. 2) 4108 at ?8. Although the Mayor and the Superintendent are committed to reforming the paid-detail system and already have made many of the most-important changes, the paid-detail system itself is not unconstitutional, and, tellingly, DOJ's March 2011 report identifies no constitutional problem with the system. See USCA5 46-47. Perricone's anonymous public tirades against the paid-detail system during the DOJ investigation and negotiation sessions, coupled no doubt with behind-thescenes campaigning, were critical to the inclusion of "Secondary Employment" in 16 Case: 13-30161 Document: 00512288882 Page: 31 Date Filed: 06/26/2013 the NOPD Consent Decree. USCA5 (Supp. 2) 4108 at ?8. His personal views so colored the March 2011 investigation report that DOJ borrowed his metaphor "aorta of corruption" to describe the NOPD's paid-detail system. USCA5 47; USCA5 (Supp. 2) 2087; 4108 at ? 8. Only a fraction of Perricone's online activities (at least under the pseudonym "HenryLMencken1951") were revealed on March 19, 2012 during the height of the negotiations between the City and DOJ over the NOPD Consent Decree. USCA5 (Supp. 2) 2090. The revelations prompted then-U.S. Attorney Jim Letten to attend a negotiation session and assure the City's legal team that Perricone's comments were an isolated incident and that no one else in the U.S. Attorney's office was aware of these activities. USCA5 (Supp. 2) 2059. Based on these unequivocal assurances from DOJ, the City continued its negotiations. See id. In August 2012, after the City had approved the initial version of the NOPD Consent Decree, Perricone acknowledged that he had posted under the pseudonym "legacyusa." USCA5 (Supp. 2) 2089-95. Later, despite the assertions he had made while attempting to keep negotiations between DOJ and the City alive, U.S. Attorney Letten conceded that another top prosecutor - his First Assistant U.S. Attorney Jan Mann - was also commenting anonymously at nola.com. USCA5 (Supp. 2) 2059; U.S. v. Mouton, No. 11-48, 2013 WL 2455934 (E.D. La. June 5, 2013). Perricone, Mann and Letten have all now left DOJ. Mouton, 2013 WL 17 Case: 13-30161 2455934 at *3-4. Document: 00512288882 Page: 32 Date Filed: 06/26/2013 The extent of the misconduct by DOJ personnel in the Eastern District of Louisiana is still under investigation. USCA5 (Supp. 2) 2059 (citing R. Doc. No. 1070 in U.S. v. Bowen, No. 10-CR-00204 (E.D. La.)); see also Mouton, 2013 WL 2455934 at *3. ARGUMENT I. STANDARD OF REVIEW. Rule 60(b) lists six grounds upon which the Court may relieve a party or its legal representative from a consent decree. Fed. R. Civ. Proc. 60(b); see also Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378 (1992) (applying Rule 60(b) to modification of consent decrees). They include: ? mistake, inadvertence, surprise, or excusable neglect; ? newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); ? fraud, misrepresentation, or misconduct by an opposing party; and ? any other reason that justifies relief. The Supreme Court has embraced the need for flexibility with respect to Rule 60(b), rejecting approaches that "ward[] off virtually all efforts to modify consent decrees." Rufo, 502 U.S. at 380. This need for flexibility and modification is particularly acute in "institutional reform litigation because such decrees reach beyond the parties involved directly in the suit and impact on the public's right to 18 Case: 13-30161 Document: 00512288882 Page: 33 Date Filed: 06/26/2013 the sound and efficient operation of its institutions." Id. (internal quotations omitted). The Court of Appeals reviews the denial of a motion to vacate a consent decree for abuse of discretion. John B. v. Emkes, 710 F.3d 394, 402 (6th Cir. 2013). To the extent the District Court based its ruling solely upon an issue of law, or upon the failure to correctly apply legal standards, that decision is subject to de novo review. See, e.g., Pierson v. Dormire, 484 F.3d 486 (8th Cir. 2007). II. THE CITY DID NOT CONSENT TO OPP REFORM AND THE NOPD CONSENT DECREE. The District Court fundamentally failed to recognize that it entered a Consent Decree devoid of its most basic ingredient: consent. Black's Law Dictionary 441 (8th ed.2004) (defining a consent decree as '[a] court decree that all parties agree to'); see also Hogan v. Allstate Beverage Co., 821 F. Supp. 2d 1274, 1280 (M.D. Ala. 2011) ("It is a fundamental principle of contracts that in order for a contract to be binding and enforceable, there must be a meeting of the minds on all essential terms and obligations of the contract."). The evidence below showed unequivocally that the City's original agreement to the Consent Decree was premised on fundamental misunderstandings - misunderstandings that DOJ knew and in some cases encouraged. Most significantly, DOJ knew that the NOPD Consent Decree would stretch the City budget to its breaking point and that the 19 Case: 13-30161 Document: 00512288882 Page: 34 Date Filed: 06/26/2013 City could not agree to reforms the City would be unable to afford. USCA5 (Supp. 2) 4108 at ? 7; 4110 at ? 19. So DOJ waited until after the City signed the Consent Decree to saddle the City with OPP reforms potentially costing the City tens of millions of dollars. USCA (Supp. 2) 2057-58; 4110 at ? 17-18. As a result of DOJ's actions and misconduct, the City's "consent" to the Consent Decree was premised on a fundamental error/mistake, which should have compelled the District Court to grant the City's Rule 60(b) motion (and not to enter judgment in the first place). As the full potential costs of the OPP Consent Decree became more specific, and as other abuses within DOJ came to light, City officials renounced the Consent Decree during the same period that the District Court was refusing to approve the initial version of the Consent Decree and insisting that the parties negotiate changes. USCA5 (Supp. 2) 4101 at ? 19. But the District Court inexplicably refused to recognize the City's explicit and timely withdrawal from the Consent Decree. Id. Compounding the error, the District Court adopted a version of the Consent Decree that it had previously refused to sign and that the City rejected. Id. In declining to accept the City's position regarding the absence of consent, the District Court incorrectly opined that the City was aware of the full financial impact of the OPP Consent Decree when it submitted the proposed NOPD Consent Decree. This conclusion is factually flawed. The cost of the OPP Consent Decree 20 Case: 13-30161 Document: 00512288882 Page: 35 Date Filed: 06/26/2013 is currently being litigated before a sister court, which has yet to receive the substantial documentation and testimony that will be necessary to determine the final cost of the OPP Consent Decree. The City nevertheless could not have known the full potential cost of the OPP Consent Decree when the NOPD Consent Decree was signed in error. The District Court's conclusion that the City was aware (or should have been aware) of the cost of the OPP Consent Decree appears entirely based on the Sheriff's blanket request for $45 million in funding five days before the NOPD Consent Decree was submitted to the District Court. Yet the Sheriff's request references only $1 million in funding tied directly to the Consent Decree, and all of the requested amounts were unsupported by documents or data. See USCA5 (Supp. 2) 3897. The DOJ did not provide a potential figure for the cost of implementing the OPP reforms until one month after the City signed the NOPD Consent Decree. See USCA5 (Supp. 2) 3992-93. And the parties have not yet had a hearing to determine the final scope and cost of DOJ's wish list. Thus, it was plain error for the District Court to speculate that the City knew the full financial impact of the NOPD Consent Decree, or that the City could have obtained this information despite its repeated requests. The crippling budget shortfall that these expenditures likely will create - unknown to the City when the decree was signed and fatal to the City's consent - supports the City's motion under Rule 60 on 21 Case: 13-30161 Document: 00512288882 Page: 36 Date Filed: 06/26/2013 multiple grounds. It was plain error and an abuse of discretion for the District Court to deny the City's Rule 60(b) Motion, which satisfied no less than three of the Rule 60(b) factors. III. THE CITY'S INABILITY TO AFFORD OPP REFORM AND THE NOPD CONSENT DECREE JUSTIFIES RELIEF UNDER RULE 60(B). Despite recognizing that Rule 60(b)(6) provides the Court a "grand reservoir of equitable power to do justice," the District Court failed to recognize, or even consider, how the entry of the NOPD Consent Decree will negatively affect "the public's right to the sound and efficient operation of its institutions." See Rufo, 502 U.S. at 380. The District Court takes the opposite approach, repeatedly dismissing the OPP Consent Decree matter as "unrelated litigation" and "an entirely separate proceeding from this case." See Rec. 4620. Despite acknowledging the City's limited resources, however, the District Court cites no rule or principle for downplaying or disregarding separate but overlapping proceedings in connection with a Rule 60(b) motion. Regardless of whether the City's potential obligation to fund the OPP Consent Decree arises in the context of another lawsuit in which DOJ has not named the City as a direct defendant, the financial strain that will occur if the City is required to fund both Consent Decrees directly harms the City's ability to meet its myriad core responsibilities to the citizens of New Orleans. 22 In Rufo, the Case: 13-30161 Document: 00512288882 Page: 37 Date Filed: 06/26/2013 Supreme Court recognized that "[m]odification of a consent decree may be warranted when changed factual conditions make compliance with the decree substantially more onerous." 502 U.S. at 384. The Supreme Court identified financial hardship as precisely the type of legitimate concern that a court should consider when determining whether to vacate a decree. Id. at 392-93. The District Court's failure to consider this factor warrants reversal. The District Court further discounts the City's claims of economic hardship by relying on the principle that "inadequate resources can never be an adequate justification for depriving any person of his constitutional rights." Rec. 4620 (citing Udey v. Kastner, 805 F.2d 1218, 1220 (5th Cir. 1986)). But there has been no showing that the NOPD Consent Decree, if vacated, will result in constitutional violations. The District Court never even reached the merits of DOJ's lawsuit. More importantly, the City never has suggested that lack of resources justifies constitutional infractions, and the NOPD Consent Decree itself denies that the City or its police officers "have engaged in any unconstitutional, illegal or otherwise improper activities or conduct." USCA5 207. Even DOJ conceded in its 2011 investigation report that NOPD, under the leadership of Superintendent Serpas, has made prodigious improvements without DOJ intervention. See Investigation Rep. excepts cited supra. There is simply no support for the District Court's conclusion that the NOPD Consent Decree, if vacated, will compromise the constitutional 23 Case: 13-30161 Document: 00512288882 Page: 38 Date Filed: 06/26/2013 rights of New Orleanians. If anything, the opposite may occur; namely, the health and welfare of New Orleans residents will be jeopardized if the City is unable to pay for fire, police, and emergency health safeguards. Voiding the NOPD Consent Decree will not force this Court to choose between bankrupting the City and violating constitutional rights for another reason: many of the matters regulated by the NOPD Consent Decree are not aimed toward addressing constitutional violations. The regulations addressing recruiting, even if gauged to better the department, are not necessary for constitutional compliance. Nor are the provisions related to custodial interrogation practices, which the DOJ did not even perceive as a constitutional problem, necessary for constitutional compliance. USCA5 51-52. Likewise, DOJ has not alleged that the paid-detail system - even if relevant to the perception and effectiveness of NOPD - represents a matter of constitutional proportion. Federal courts have been reluctant to secondguess the governing decisions by local elected officials, whose proximity to and expertise with local matter make them well qualified to make determinations of public good "within their respective spheres of authority." Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 244 (1984). Both DOJ and the District Court failed to recognize this tenet. 24 Case: 13-30161 IV. Document: 00512288882 Page: 39 Date Filed: 06/26/2013 THE SECONDARY EMPLOYMENT PROVISIONS OF THE NOPD CONSENT DECREE POTENTIALLY VIOLATE THE FLSA AND NEWLY-ENACTED LA R.S. 33:2239. Although the paid detail system does not run afoul of the Constitution, the remedy embraced by the NOPD Consent Decree potentially violates two other laws: the Fair Labor Standards Act and recently enacted La. R.S. 33:2239.3 When the City became aware of La. R.S. 33:2239, which prohibits the Office of Police Secondary Employment (OPSE) from discussing anything other than work assignments with NOPD, it notified the District Court of the legal impediment to enforcement of certain provisions of the NOPD Consent Decree. This statute seriously curtails the ability of OPSE and NOPD to jointly establish policies and implement the Consent Decree. The OPSE director routinely meets with NOPD and engages in weekly outreach meetings to educate officers about the new OPSE system and to establish guidelines. These discussions are not related to assignments of secondary employment, but are related to creation and implementation of policy. La. R.S. 33:2239 prevents the City from fully implementing secondaryemployment provisions that require substantive interaction between OPSE and 3 The City only recently became aware of La. R.S. 33:2239 and its potential impact on the implementation of the Consent Decree. The City immediately filed a brief with the District Court advising of this statute and requesting relief. R. Doc. 279. 25 Case: 13-30161 Document: 00512288882 Page: 40 Date Filed: 06/26/2013 NOPD. Among the provisions of the NOPD Consent Decree that may contravene state law are the following (emphasis added): ? Paragraph 341: The Coordinating Office shall fill all new secondary employment opportunities and temporary vacancies pursuant to written and consistently applied criteria. NOPD employees shall not be permitted to select substitutes or allow another employee to work an assigned secondary job in place of the employee. USCA5 291. ? Paragraph 345 (in pertinent part): The Coordinating Office shall develop and implement a plan for working with NOPD to ensure that supervisors conduct in- person inspections of secondary employment sites based upon the frequency worked. USCA5 292. ? Paragraph 356 (in pertinent part): NOPD and the Coordinating Office shall establish a standard form by which NOPD employees can register to work secondary employment assignments. . . When determining whether an NOPD employee qualifies for authorization to work secondary employment, NOPD and the Coordinating Office shall evaluate factors that include . . . . USCA5 293-94. ? Paragraph 369: Working with NOPD, the Coordinating Office shall determine the number of employees and supervisors necessary to work a secondary job, considering factors that include . . . USCA5 297-98. ? Paragraph 373: The Coordinating Office will implement a system so that on-duty NOPD patrol supervisors are aware of each secondary job within that supervisor's geographical coverage area and the identity of each employee working each secondary job. USCA5 299. For these reasons, the NOPD Consent Decree, if not vacated entirely, should be remanded so that the District Court can consider modification of the Consent Decree in light of changed circumstances, mistake, and/or inadvertence. See Fed. Rule Civ. P. 60(b)(2); See Ibarra v. Tex. Emp. Comm'n, 823 F.2d 873 (5th Cir. 26 Case: 13-30161 Document: 00512288882 Page: 41 Date Filed: 06/26/2013 1987) (permitting modification of a consent decree where party mistakenly believed it had complied with legal requirements). The concern over the FLSA rests on the question of whether the City's more rigorous oversight of secondary employment will obligate the City to pay overtime for details or whether the practice falls within a statutory law-enforcement safe harbor. See 29 U.S.C. ? 207(p)(1); 29 C.F.R. ? 553.227(d). The District Court concluded in dicta that the NOPD Consent Decree satisfies the law-enforcement exception and, thus, does not implicate FLSA's overtime requirements. While the City certainly agrees with the District Court's conclusion that the FLSA lawenforcement safe-harbor provision applies to the NOPD Consent Decree, the District Court's reliance upon an informal letter from the Department of Labor gives pause. See USCA 5 (Supp. 2) 3898. Not only are such opinion letters not entitled to any particular deference, see Christensen v. Harris County, 529 U.S. 576, 587 (2000), they do not preclude DOL from reversing its position. In light of the significant penalties imposed by the FLSA, this case should be remanded to grant the City's motion to modify the NOPD Consent Decree if DOL alters its position or should the City's secondary-employment provisions come under legal challenge. See Ibarra v. Tex. Emp. Comm'n, 823 F.2d 873 (5th Cir. 1987). 27 Case: 13-30161 V. Document: 00512288882 Page: 42 Date Filed: 06/26/2013 THE INVESTIGATION AND NEGOTIATIONS WITH DOJ WERE TAINTED FROM THE OUTSET BY THE ACTIONS OF DOJ EMPLOYEES. Rule 60(b)(3) provides relief from judgments that are obtained through fraud, misrepresentations or misconduct by an opposing party. This rule "is aimed at judgments which were unfairly obtained, not at those which are factually incorrect." Gen. Universal Sys., Inc. v. Lee, 379 F. 3d 131, 156 (5th Cir. 2004). Relief under Rule 60(b)(3) may be granted when a party knowingly misrepresents or conceals a material fact when they have a duty to disclose, and such concealment is done to induce another party to act to its detriment. See Info-Hold, Inc. v. Sound Merch., Inc., 538 F. 3d 448, 455-56 (6th Cir. 2008). DOJ failed to disclose the full extent to which its point person in the U.S Attorney's Office repeatedly sought to sabotage the City and its leaders. Perricone knowingly misrepresented and concealed his online misconduct, thereby undermining the fairness, integrity, and confidentiality of the entire negotiation process leading to the initial version of the NOPD Consent Decree. The District Court made much of the fact that Perricone's activities had surfaced before the City entered into the NOPD Consent Decree. But, even now, long after the District Court retroactively approved a version of the very Consent Decree it originally rejected, the full extent of the scandal has yet to come to light. Perricone did not admit to posting as "legacyusa" until August 2012, and the City 28 Case: 13-30161 Document: 00512288882 Page: 43 Date Filed: 06/26/2013 did not have access to "legacyusa" postings until shortly before the January 11, 2013 status conference. USCA5 (Supp.) 4108 at ? 9. And, notwithstanding U.S. Attorney Jim Letten's assurances that the actions of Perricone were isolated, Letten's top assistant was later implicated in similar misconduct. USCA5 (Supp. 2) 2059. That office of DOJ remains under investigation. Id.; see also, U.S. v. Mouton, No. 11-48, 2013 WL 2455934 (E.D. La. June 5, 2013). Not only was the federal smear campaign by DOJ an affront to the City, its residents, and its leaders, it undermines the legitimacy of DOJ's investigation. The actions of Perricone should have prompted the District Court to vacate the Consent Decree under the "misconduct" factor of Rule 60(b)(3). The District Court erroneously found, however, that Rule 60(b)(3) should not apply because the City purportedly was aware Perricone's misconduct in July 2012. But this contention is factually incorrect and legally irrelevant. The subsequent orders by other district judges who scrutinized these events led them to conclude that all pivotal facts have not surfaced and that an investigation was needed. Mouton, 2013 WL 2455934 at *3. The City, as well as these federal judges, were not aware (and remain unaware) of the full extent of Perricone's misconduct. The City did not discover Perricone's additional pseudonyms, or similar abuses by other top DOJ officials, until months after signing the initial NOPD Consent Decree. USCA5 4108 at ? 9. 29 Case: 13-30161 Document: 00512288882 Page: 44 Date Filed: 06/26/2013 The timing of the City's discovery of Perricone's misconduct is not dispositive. To prevail under Rule 60(b)(3), a party need only show "(1) that the adverse party engaged in fraud or other misconduct and (2) that this misconduct prevented the moving party from fully and fairly presenting his case." Gen. Universal Sys., 379 F.3d at 156. Perricone's actions - which toppled the entire leadership at the U.S. Attorney's Office in the Eastern District of Louisiana - undoubtedly qualify as "misconduct" under Rule 60(b)(3) and has even given rise to a federal investigation. See Mouton, 2013 WL 2455934 at *3. Moreover, the record shows that the actions of Perricone directly led to the inclusion of paiddetail reforms in the Consent Decree. Not only are these reforms unnecessary to address any alleged constitutional deficiency at NOPD, because none exists, but they create a host of potential legal conflicts and contribute to the excessive cost of reform. While these facts alone justify relief under Rule 60(b)(3), a full assessment into the effect of DOJ misconduct on the NOPD consent decree is not possible in light of the ongoing investigation. Nevertheless, the City made the required showing and the District Court failed to apply the law correctly. Even if the misconduct by DOJ personnel, standing alone, is insufficient to vacate the Consent Decree under Rule 60(b)(3), it should nevertheless have been paramount in the District Court's analysis under Rule 60(b)(6). Inexplicably, it was not. Since invoking the assistance of the federal government, City leaders 30 Case: 13-30161 Document: 00512288882 Page: 45 Date Filed: 06/26/2013 have been defamed and misled. They signed on to a costly Consent Decree that was broader than necessary, based in large part on an investigation shaped not by constitutional mandates, but Perricone's personal agenda. VI. PROCEDURAL DEFICIENCIES TAINTED THE PROCESS AND FURTHER ERODED "CONSENT." The District Court's adoption of the NOPD Consent Decree was fraught with procedural missteps that warrant reversal of the proceedings below. The District Court suspended the Federal Rules of Evidence and Procedure at the Fairness Hearing. Rec. 4175:20-23. The lower court prohibited cross-examination of witnesses and admitted into evidence nearly every document offered by DOJ, even though most of those documents constituted unauthenticated hearsay. See USCA5 (Supp. 2) 4171:23-4173:22; 4175:20-23; see also USCA5 1667, 1672-74. More problematic, however, was the District Court's ongoing modification of the Consent Decree following the entry of Judgment on January 11, 2013. USCA5 (Supp. 2) 2265-66 at ?? 58-66; 3290-3756. It is well settled that courts do "not have the power to modify a proposed consent decree and to order its acceptance over either party's objection." See Dandridge v. Jefferson Parish Sch. Bd., No. 64-14801, 2009 WL 24462, *2 (E.D. La. Jan. 5, 2009). A court need not approve a consent decree, but if it did not or "suggested or attempted a substantial change in the proposed consent judgment, each party to the consent decree, at the very least, would be free to withdraw from the stipulated 'consent.'" City of 31 Case: 13-30161 Document: 00512288882 Page: 46 Date Filed: 06/26/2013 Burbank v. Gen. Elec. Co., 329 F.2d 825, 831 (9th Cir. 1964). By continuing to alter the Consent Decree, the District Court has created a consent judgment to which the City did not consent. CONCLUSION For the foregoing reasons, the order of District Court entering the Consent Decree should be vacated. /s/ Sharonda R. Williams SHARONDA R. WILLIAMS (#28809) CITY ATTORNEY 1300 PERDIDO STREET ROOM 5E03 - CITY HALL NEW ORLEANS, LA 70112 TELEPHONE: (504) 658-9800 FASCIMILE: (504) 658-9868 EMAIL: shrwilliams@nola.gov HARRY ROSENBERG (#11465) PHELPS DUNBAR LLP NEW ORLEANS, LA 70130 TELEPHONE: (504) 584-9219 FASCIMILE: (504) 568-9130 EMAIL: ROSEBEH@phelps.com Counsel for Appellant 32 Case: 13-30161 Document: 00512288882 Page: 47 Date Filed: 06/26/2013 CERTIFICATE OF COMPLIANCE WITH RULE 32(a) This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 7,511 words, excluding the parts of the brief exempted by Fed R. App. P. 32(a)(7)(B)(iii). 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 Microsoft Word 2010 in 14-point Times New Roman. If the Court so requests, the undersigned will provide an electronic version of the brief and/or a copy of the word or line printout. The undersigned understands a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in 5th Cir. R. 32.2.7, may result in the Court's striking the brief and imposing sanctions against the person signing the brief. /s/ Sharonda R. Williams SHARONDA R. WILLIAMS Counsel for Appellant June 26, 2013 33