UNITED STATES v. CITY OF TAMPA FLORIDA (2024)

ORDER

The United States sues the City of Tampa, Florida, alleging that Tampa violated Title VII when, in 2017, Tampa denied Jeffrey Burger's request for primary caregiver leave under Tampa's parental leave policy based on Burger's sex. See Compl. (Doc. 1) ¶¶ 21–42, 51–52. The United States further alleges that Tampa discriminated against other male employees under the same policy between February 2017 and December 2018, constituting a pattern or practice of disparate treatment based on sex. See id. ¶¶ 43–54.

Immediately after initiating the lawsuit (in fact, the same day that the United States filed its complaint), the parties jointly moved for entry of a consent judgment. Mot. to Approve Consent J. (Doc. 2). In addition to providing individualized monetary relief and paid annual leave to Burger and similarly situated male employees, see Consent J. (Doc. 12-1) ¶¶ 20–37, the proposed consent judgment contains roughly fifteen pages of reticulated forward-looking relief, see id. ¶¶ 5–19, 38. Those provisions would require Tampa to implement a new parental leave policy, to revise its more general anti-discrimination and anti-retaliation policies, to designate certain employees with oversight responsibilities after approval by the Department of Justice, and to otherwise subject itself to extensive federal monitoring for at least two years. Id. After the parties attended a telephonic hearing, see (Doc. 22), they submitted additional briefing and evidence to supplement the record, see Am. Mot. to Approve Consent J. (Doc. 12); Joint Stipulation (Doc. 12-2); see Spears v. Bay Inn & Suites Foley, LLC, No. 22-13376, slip op. at 11, ––– F.4th ––––, ––––, 2024 WL 3063472 (11th Cir. June 20, 2024) (“Litigants may always stipulate to facts that would otherwise be one party's burden to prove.”); see also (Docs. 12-3, 12-4, 12-5, 12-6); Joint Suppl. Br. (Doc. 24); (Docs. 24-1, 24-2, 24-3). Tampa also answered the complaint, admitting some (but not all) of the United States’ allegations. Answer (Doc. 16).

Upon review, the amended motion for entry of consent judgment is denied for three reasons. First, the parties have not set forth facts that warrant the sweeping injunctive relief against a government entity of the kind sought. Second, some of the proposed injunction's terms are too vague to be effectively enforced by coercive contempt. And third, I am not convinced that the proposed individualized relief is fair and reasonable given its preferential treatment of Burger compared to other male employees who Tampa unlawfully denied primary caregiver leave.

I. BACKGROUND

On February 10, 2017, Tampa adopted a generally applicable parental leave policy. Joint Stipulation ¶ 12. The policy covered both the birth of a child by an employee and the placement of a child for adoption or foster care with an employee. Leave Policy (Doc. 12-4) at 1. By its terms, the policy applied to both sexes and was “limited to one continuous 320-hour period per calendar year for the primary care giver/maternity leave and one continuous 80-hour period per calendar year for the secondary care giver/paternity leave.” Id. The policy defined an employee with “primary care giver/maternity leave status” as “the person who has primary responsibility for the care of a child immediately following the birth (and is typically also recovering from childbirth) or the coming of the child into the adoptive or initial foster care and control of the parent for the first time.” Id. An employee whose spouse had primary caregiver status was defined by reference to have “secondary care giver/paternity leave” status. See id. at 2.

Tampa “intended to promulgate a policy allowing paid leave to a parent providing care to newborn or newly placed children, differentiated only by whether the employee was the primary or secondary caregiver” and that “[t]he policy was to be applied without regard to the sex of the caregiver.” Answer at 1. Despite these intentions, Tampa “admits it systematically applied its policy in a discriminatory manner, denying primary caregiver leave to male employees when a child's birth mother was present in the home and physically capable of providing primary care for her newborn.” Id. ¶ 47. That meant, “in practice, [Tampa] administered the policy using a presumption that a birth mother would be designated a primary caregiver and that the father would be ․ the secondary caregiver.” Joint Stipulation ¶ 16.

On July 19, 2017, Burger requested primary caregiver leave under the policy and provided a note from his wife's doctor in support of his application. Id. ¶¶ 17–19; see also Burger Aff. (Doc. 12-3); Burger Leave Request (Doc. 12-6). Consistent with Tampa's practice to presume the birth mother as primary caregiver, Burger was approved for only secondary caregiver leave. Joint Stipulation ¶ 21; see also Compl. ¶¶ 21–42; Answer ¶¶ 21–42; Burger Aff.; Burger Email (Doc. 12-5).

Burger filed a charge with the Equal Employment Opportunity Commission (EEOC) on April 25, 2018, alleging that Tampa violated Title VII by discriminating against him because of his sex. Joint Stipulation ¶ 8. Tampa did not cease discriminating under its policy immediately after Burger filed the charge. See id. ¶ 22. Instead, between February 2017 and December 2018, Tampa approved roughly 147 male employees for secondary caregiver leave. Id. During the same period, Tampa “routinely granted” female employees primary caregiver leave. Id. ¶ 23. Besides Burger, nine other male employees “formally requested ‘primary care giver’ leave” during this period. Id. ¶ 24. Tampa denied each request and instead granted the male employees secondary caregiver leave. Id.

On December 11, 2018, Tampa adopted a revised parental leave policy that provided every employee with eighty hours of paid leave “following the birth, adoption, or foster placement of a child without regard to the employee's sex or caregiving status.” Joint Suppl. Br. at 2–3; see also Revised Leave Policy (Doc. 24-1). This policy remains in effect. See Joint Suppl. Br. at 2 (stating that this is Tampa's “current parental leave policy”). The same day, Tampa adopted a “pregnancy-related medical leave of absence policy” providing 240 hours of paid leave. Id. at 3; see also Pregnancy-Related Medical Leave of Absence Policy (Doc. 24-2). Although such a policy—by nature—would appear to concern only pregnant women, the “effective date” section of the policy extended the policy to adoptions and foster care placements on or after December 16, 2018. Pregnancy-Related Medical Leave of Absence Policy at 3. During the EEOC's investigation, “[Tampa] disclosed that it had provided several adoptive parents with pregnancy-related medical leave under the December 2018 policies.” Joint Suppl. Br. at 3. Although the details are unclear, in effect, Tampa concedes that both the language in the “effective date” provision of the current policy and any “decisions providing pregnancy-related medical leave for non-medical reasons were errors.” Id. at 4.

After a roughly three-year investigation, the EEOC found reasonable cause on Burger's charge on June 18, 2021. Joint Stipulation ¶¶ 9–10. In its determination letter, the EEOC “conclude[d] that the evidence obtained during [its] investigation establishe[d] reasonable cause to believe that [Tampa] discriminated against a class of male employees based on their sex, male, from at least February 10, 2017 to the present by applying [Tampa's] Parental Leave policy in a discriminatory manner and regularly giving female employees more leave benefits than male employees based on their sex, in violation of Title VII.” Determination Letter (Doc. 24-3) at 2. The EEOC then sought to negotiate a conciliation agreement. Joint Stipulation ¶ 11. But that effort failed. Id. Because Tampa is a government defendant, the EEOC could not sue after the conciliation process resolved without agreement. See 42 U.S.C. § 2000e-5(f)(1). Instead, the EEOC was required to “take no further action” and “refer the case to the Attorney General.” Id. On December 3, 2021, the EEOC referred the case to the Department of Justice for further proceedings. See Joint Suppl. Br. at 4. Two years later, the United States filed suit and moved for entry of a consent judgment. See Compl.; Mot. to Approve Consent J.

Despite these issues, “[Tampa] has always been interested in instituting a policy that provides different lengths of leave for primary and secondary caregivers while also complying with Title VII.” Joint Suppl. Br. at 2. But “[h]aving been unable to reach agreement with the EEOC on the terms of a revised policy, [Tampa is] unwilling to implement a new policy that distinguishe[s] between primary and secondary caregivers without the knowledge that it would eliminate the risk of further enforcement action by the United States.” Id. Put differently, Tampa would like to implement a new policy that shares a similarity to its original policy—the distinction between primary and secondary caregivers for awards of parental leave—but Tampa wants assurance against future litigation risk.

At the telephonic hearing, the parties reiterated this view, explaining that the consent judgment's request for forward-looking relief was motivated by Tampa's desire to adopt a new parental leave policy that, like its original policy, would “differentiate[ ] between primary caregiver and secondary caregiver” leave. Hr'g Tr. (Doc. 25) at 12:16–17. Tampa suggested that, in the light of past events, it had a burden to show that it would not discriminate under the new policy. Id. at 11:22–12:2. And the United States argued that, because the new policy would distinguish between primary and secondary caregivers like the old policy had, there was a “risk[ ] that [the new] policy will be misapplied [in a discriminatory manner] again” absent injunctive relief. Id. at 12:17–18.

II. LEGAL STANDARDS

A. Article III Limits on Awarding Injunctive Relief in a Consent Judgment

“District courts should approve consent decrees so long as they are not unconstitutional, unlawful, unreasonable, or contrary to public policy.” Stovall v. City of Cocoa, Fla., 117 F.3d 1238, 1240 (11th Cir. 1997); see also Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004) (similar). In this context, the primary constitutional constraint is Article III's limitation of the judicial power to cases and controversies, embodied in the requirement that litigants demonstrate standing to sue. See Spokeo, Inc. v. Robins, 578 U.S. 330, 337–38, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016).

“Article III standing is a bedrock constitutional requirement that [the Supreme Court] has applied to all manner of important disputes.” FDA v. All. for Hippocratic Med., ––– U.S. ––––, 144 S.Ct. 1540, ––––, ––– L.Ed.2d –––– (2024) (quotations omitted). It is “built on a single basic idea—the idea of separation of powers,” that “was woven into the document that [the Framers] drafted in Philadelphia in the summer of 1787.” Id. (quotations omitted). As the Supreme Court has explained, “standing is not dispensed in gross; rather, plaintiffs must demonstrate standing for each claim that they press and for each form of relief that they seek (for example, injunctive relief and damages).” TransUnion LLC v. Ramirez, 594 U.S. 413, 431, 141 S.Ct. 2190, 210 L.Ed.2d 568 (2021). A district court cannot “enter [a] consent decree[ ] ․ that provide[s] relief that the district court lacks the power to grant,” Williams v. Reckitt Benckiser LLC, 65 F.4th 1243, 1258 (11th Cir. 2023), “[consent of the parties,] or not,” TransUnion, 594 U.S. at 431, 141 S.Ct. 2190 (quoting Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 466, 136 S.Ct. 1036, 194 L.Ed.2d 124 (2016) (Roberts, C. J., concurring)).

Of course, “a person exposed to a risk of future harm may pursue forward-looking, injunctive relief to prevent the harm from occurring, at least so long as the risk of harm is sufficiently imminent and substantial.” Id. at 435, 141 S.Ct. 2190 (citing Clapper v. Amnesty Int'l, USA, 568 U.S. 398, 414 n.5, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013)). But mere potential is not enough—if an “attenuated chain of inferences” is “necessary to find [the risk of potential future] harm,” speculation will not support forward-looking relief. Clapper, 568 U.S. at 414 & n.5, 133 S.Ct. 1138 (potential future harms must ordinarily be “certainly impending”); City of S. Miami v. Governor, 65 F.4th 631, 636 (11th Cir. 2023) (same). For example, it is not enough to show, taken alone, that a defendant has acted unlawfully in the past. See City of S. Miami, 65 F.4th at 637 (“Past occurrences of unlawful conduct do not establish standing to enjoin the threat of future unlawful conduct.”); City of L.A. v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (“Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief if unaccompanied by any continuing, present adverse effect.” (cleaned up)).

The bottom line is this: Article III limits the relief that a district court can order in every case, including when parties agree to settle subject to a consent judgment ordering forward-looking relief. Thus, if a proposed consent judgment includes relief that the United States lacks standing to seek, a court can neither approve the offending provision nor consider the forbidden relief when evaluating the remaining provisions’ overall fairness. See, e.g., Williams, 65 F.4th at 1253, 1257–58 (approving a class action settlement that included impermissible forward-looking relief under similar circumstances “was premised on a legal error and, as a result, was necessarily an abuse of discretion”).

B. Title VII Remedies and Consent Judgments

Just as a consent judgment must comply with Article III, a consent judgment must also generally comport with other sources of federal law. Stovall, 117 F.3d at 1240; cf. Frew, 540 U.S. at 437, 124 S.Ct. 899 (explaining that consent judgments “must be directed to protecting federal interests” and “must spring from, and serve to resolve, a dispute within the court's subject-matter jurisdiction; must come within the general scope of the case made by the pleadings; and must further the objectives of the law upon which the complaint was based”).

Title VII provides statutory authority for a district court to order forward-looking equitable relief, including injunctions. See 42 U.S.C. § 2000e-5(g). If Tampa “has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint,” for example, a court “may enjoin [Tampa] from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay[,] ․ or any other equitable relief as the court deems appropriate.” Id. § 2000e-5(g)(1).

C. Evaluating Consent Judgments for Substantive Reasonableness

Finally, a district court must determine whether a proposed consent judgment's terms are fair and reasonable. See Stovall, 117 F.3d at 1240; Howard v. McLucas, 871 F.2d 1000, 1008 (11th Cir. 1989) (district courts are “required to examine the consent decree,” “ascertain whether it represent[s] a reasonable factual and legal determination based on the record, and ensure that it [does] not violate federal law”).

Some degree of substantive review is justified by the fact that “[c]onsent decrees have elements of both contracts and judicial decrees.” Frew, 540 U.S. at 437, 124 S.Ct. 899. “A consent decree ‘embodies an agreement of the parties’ [but] is also ‘an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees.’ ” Id. (quoting Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 378, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992)). Thus, “[e]ven though [a consent judgment] is predicated on consent of the parties, [a district court] must not give it perfunctory approval.” Stovall, 117 F.3d at 1242 (quoting United States v. City of Miami, Fla., 664 F.2d 435, 441 (5th Cir. 1981) (en banc) (Rubin, J., concurring in the per curiam judgment)). A consent judgment's “terms require more careful scrutiny,” id. (quotations omitted)—a court may “not merely sign on the line provided by the parties,” City of Miami, 664 F.2d at 440 (Rubin, J., concurring in the per curiam judgment). Instead, a court must find “that the proposal represents a reasonable factual and legal determination based on the facts of record, whether established by evidence, affidavit, or stipulation.” Stovall, 117 F.3d at 1242 (quotations omitted). When the consent judgment, as it does here, will affect third parties, “the court must [additionally] be satisfied that the effect on [the third parties] is neither unreasonable nor proscribed.” Id.

III. ANALYSIS

The proposed consent judgment presents three problems: (1) the stipulated facts do not support the injunctive relief sought, (2) certain terms remain too undefined to reliably enforce through coercive contempt, and (3) the individualized distribution of monetary damages to similarly situated employees raises fairness concerns. I address each issue in turn.

A. The Parties Have Not Set Forth Facts Warranting the Consent Judgment's Forward-Looking Relief

The first (and most important) problem with the consent judgment is that I lack authority to order the sweeping injunctive relief contained in its forward-looking provisions. Neither the allegations in the United States’ complaint nor any evidence in the record supports a finding that Tampa's adoption of a new parental leave policy will result in an imminent risk of future injury, i.e., sex discrimination. See City of S. Miami, 65 F.4th at 636 (requiring future harms be “certainly impending”). Absent such a risk, the United States lacks standing to seek a comprehensive judicial reordering (complete with subsequent federal supervision) of a local government's personnel policies. Id.

1. To Seek Forward-Looking Relief, a Plaintiff Must Show a “Certainly Impending” Risk of Future Harm

“[B]ecause injunctions regulate future conduct, a party has standing to seek injunctive relief only if his injury in fact is a real and immediate—as opposed to a merely conjectural or hypothetical—threat of future injury.” Williams, 65 F.4th at 1253 (quotations omitted). In other words, a plaintiff must show a risk of future injury that is “certainly impending” to seek injunctive relief. Clapper, 568 U.S. at 414 & n.5, 133 S.Ct. 1138. The rule applies just as strongly when “a plaintiff also seeks monetary relief for past harm.” Williams, 65 F.4th at 1253. “Thus, even if a plaintiff can establish standing to pursue separate claims for monetary relief based on allegations of past harm, before a court may grant that plaintiff injunctive relief, the plaintiff must separately establish a threat of ‘real and immediate,’ as opposed to ‘conjectural or hypothetical,’ future injury.” Id. (citing Lyons, 461 U.S. at 102, 105, 103 S.Ct. 1660); see also TransUnion, 594 U.S. at 436, 141 S.Ct. 2190 (plaintiffs “must demonstrate standing separately for each form of relief sought” (quotations omitted)). Applying ordinary standing principles to the facts of this case demonstrates the jurisdictional problem.¹

2. The Evidence Does Not Establish a “Certainly Impending” Risk that Tampa's Implementation of Its New Parental Leave Policy Will Violate Title VII

Everyone agrees that Tampa applied its parental leave policy in a discriminatory manner between February 2017 and December 2018, denying Burger and similarly situated male employees’ requests for primary caregiver leave based on sex. See Joint Stipulation ¶¶ 22–24; Answer ¶ 47. The United States has standing to seek relief remedying that past harm (as would the individual employees), which corresponds to the individualized provision of monetary payments and additional paid leave to those employees. Consent J. ¶¶ 20–37. In short, that portion of the proposed consent judgment poses no Article III concern.

The same cannot be said of the consent judgment's forward-looking relief. These provisions would require Tampa to enact sweeping reforms (subject to preclearance by the Department of Justice) to its personnel policies, both on parental leave and with respect to more general anti-discrimination and anti-retaliation practices. Id. ¶¶ 7–12. The forward-looking relief provisions would also subject Tampa to federal oversight with respect to the selection of a high-level official with important administrative responsibilities, id. ¶¶ 5–6 (requiring federal approval of Tampa's selection of an “Equal Employment Opportunity Officer” charged with “ensur[ing] that Tampa implements the relief required by [the consent judgment]”), the implementation of employee-training programs, id. ¶¶ 13–17, and general record keeping practices, id. ¶¶ 18–19, for a period of at least two years, id. ¶¶ 38, 44. None of these obligations have anything to do with redressing past harm. Instead, they are concerned with preventing future discrimination under a new parental leave policy.

The parties offer little justification for seeking forward-looking relief. The United States’ prayer for relief requests that I “[e]njoin Tampa from further discriminating against Burger and other similarly situated male employees who seek parental leave.” See Joint Suppl. Br. at 4 (citing Compl. at 12). But the complaint does not allege, nor have the parties stipulated, that Tampa is currently discriminating. Instead, the complaint exclusively focuses on the period between February 2017 and December 2018, prior to Tampa's implementation of its current leave policies and five years before the United States filed this action. See Compl. ¶¶ 14–54. The most recent evidence of ongoing discrimination dates back to June 2021, when the EEOC issued its determination letter. See Determination Letter at 2. By the time the lawsuit was filed two-and-a-half years later, Tampa had apparently ceased discriminating, reached an agreement with the United States on the text of a proposed consent judgment, and tailored retrospective relief to those potentially affected by Tampa's leave policy from February 2017 to December 2018. See, e.g., (Doc. 2-1) at 20.

Because the parties do not stipulate (or otherwise provide evidence) that discrimination is ongoing, the United States must show a “certainly impending” risk of future discrimination to justify seeking forward-looking relief. City of S. Miami, 65 F.4th at 636. By the same token, the parties’ stipulation that Tampa previously acted unlawfully does not establish that future discrimination is imminent. See Duty Free Am., Inc. v. Estee Lauder Cos., Inc., 797 F.3d 1248, 1272 (11th Cir. 2015) (explaining that “past conduct cannot be the [sole] basis of a request for injunctive relief”). The question is not what may or may not have happened in the past, but what will likely happen, absent an injunction, in the immediate future.

On that key question, the United States provides no real evidence—only hypotheticals and conjecture about future unlawful conduct. See, e.g., Hr'g Tr. at 9:10–17, 12:13–20. It does not address the issue at all in its memorandum of law in support of the consent judgment. See generally USA Br. (Doc. 13). And at the hearing, the United States argued only that there was some nebulous risk of future discrimination because Tampa's new policy would share one feature with its old policy: distinguishing between primary and secondary caregivers. Hr'g Tr. at 12:17–18 (claiming that there is a “risk[ ] that [the new] policy will be misapplied [in a discriminatory manner] again”). Based on the parties’ filings and Tampa's representations at the hearing, Tampa acknowledges it previously implemented the parental leave policy in a way than ran afoul of Title VII. Tampa has expressed no desire to see those implementation problems reoccur, which is exactly why Tampa seeks to adopt a new parental leave policy that treats employees of both sexes equally while maintaining the distinction between primary and secondary caregivers. The United States has not shown any evidence of bad faith or even alleged a contrary intent. Thus, the record reflects a defendant that has admitted its past misconduct and wishes to avoid repeating prior missteps. Hardly the kind of scenario that ordinarily warrants an injunction. See City of S. Miami, 65 F.4th at 637–38 (emphasizing that “generic allegations” of “past occurrences of unlawful conduct do not establish standing to enjoin the threat of future unlawful conduct” (citing Lyons, 461 U.S. at 102–03, 103 S.Ct. 1660)).

Even if, under exceptional circumstances, a structural similarity between an old and new policy might suffice, this kind of speculation is entirely inappropriate when targeting a state or local government entity. See Keister, 29 F.4th at 1250 (explaining that “[g]overnment defendants receive the benefit of the doubt in voluntary-cessation cases” because “[w]hen they voluntarily stop the challenged conduct, a rebuttable presumption arises that they will not reengage in it”). State and local officials are no less sworn to obey the law, including federal law, than their counterparts in Washington. Federal courts recognize this truth—and afford due respect for democratic self-determination at every level of our federal system—by refusing to presume that public officials have a tendency towards lawlessness. See id.; cf. Alexander v. S.C. State Conf. of the NAACP, ––– U.S. ––––, 144 S. Ct. 1221, 1235–36, ––– L.Ed.2d –––– (2024) (discussing constitutional values underlying the presumption of legislative good faith). Without evidence of current discrimination or the intent to discriminate moving forward, the United States is left with a “highly speculative fear” that, absent federal supervision, Tampa will repeat the sins of the past. Clapper, 568 U.S. at 410, 133 S.Ct. 1138. But speculative fear cannot justify forward-looking relief. City of S. Miami, 65 F.4th at 637; see also All. for Hippocratic Med., ––– U.S. ––––, 144 S.Ct. 1540, ––––, ––– L.Ed.2d ––––.

In sum, although all agree that Tampa has violated Title VII in the past, the record contains no facts showing any real risk (much less a certainly impending one) that Tampa will do so again under the new parental leave policy that Tampa proposes to adopt. Absent that risk, the United States lacks standing to seek forward-looking relief. See TransUnion, 594 U.S. at 435, 141 S.Ct. 2190 (citing Clapper, 568 U.S. at 414 n.5, 133 S.Ct. 1138).²

B. The Consent Judgment's Forward-Looking Relief Is Insufficiently Clear to Enforce Via Coercive Contempt

Setting aside standing for a moment, several of the consent judgment's forward-looking relief provisions also raise concerns under the Federal Rules of Civil Procedure.

Consent judgment or not, a district court must abide by Rule 65(d)’s “requirement that injunctions state their terms specifically and ‘describe in reasonable detail’ the ‘act or acts restrained or required’ ” in determining whether to enter proposed injunctive relief. United States v. Askins & Miller Orthopaedics, P.A., 924 F.3d 1348, 1361 (11th Cir. 2019) (quoting Fed. R. Civ. P. 65(d)); see also SEC v. Goble, 682 F.3d 934, 948–52 (11th Cir. 2012) (vacating district court's injunction ordering defendant not to violate securities regulations because the injunction “merely cross-reference[d] the relevant statutes and regulations”); Payne v. Travenol Laby's, Inc., 565 F.2d 895, 897–98 (5th Cir. 1978) (vacating Title VII “obey the law” injunction). The Eleventh Circuit's strict adherence to Rule 65(d) is “designed to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood.” Goble, 682 F.3d at 950. This skepticism of vague and overbroad injunctions embodies two ideas: (1) that “[a]n injunction should clearly let defendant know what he is ordered to do or not to do,” and (2) that “court order[s] should be phrased in terms of objective actions, not legal conclusions.” Id. (quotations omitted).

The need for courts to speak clearly is more than theoretical—if a defendant refuses to comply with an injunction, contempt proceedings that will test an order's clarity tend to follow. To “provide meaningful and unique relief to [a] plaintiff” who has secured an injunction, the order must be capable of being enforced by coercive contempt, which imposes a continuing sanction until the defendant relents. Chandler v. James, 180 F.3d 1254, 1270–71 (11th Cir. 1999) (Tjoflat, J., specially concurring) (explaining that, generally, only an injunction enforceable by coercive contempt is an appropriate use of a federal district court's equitable authority) vacated and remanded sub nom. on other grounds in Chandler v. Siegelman, 530 U.S. 1256, 120 S.Ct. 2714, 147 L.Ed.2d 979 (2000) (remanding for further consideration in the light of Santa Fe Independent School District v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000)). In all cases, but especially in a coercive contempt proceeding where the contemnor risks open-ended sanctions until he complies with the injunction, vagueness “deprive[s] defendants of the procedural protections that would ordinarily accompany a future charge of a violation of [federal law].” Goble, 682 F.3d at 949.

As explained at the hearing, I view most of the terms of the consent judgment as sufficiently reticulated to avoid vagueness concerns. See, e.g., Hr'g Tr. at 6:19–23. But there remain at least two provisions that threaten to prevent fair notice and subsequent enforcement via coercive contempt. First, the consent judgment requires Tampa to select an Equal Employment Opportunity Officer with certain minimum qualifications, subject to approval by the United States. Consent J. ¶¶ 5–6. Such approval “will not be unreasonably withheld.” Id. ¶ 5. What factors might constitute a “reasonable” basis to withhold approval outside the minimum qualifications are not obvious and could easily be the subject of protracted post-judgment litigation. Second, Tampa's ability to change its personnel policies (either the new parental leave policy or the more general revised anti-discrimination and anti-retaliation policies) during the term that the parties remain under my jurisdiction is underdetermined. Although the United States represented that Tampa would need to obtain preclearance of any potential policy changes from the Department of Justice, see Hr'g Tr. at 17:6–18:5, the text of the consent judgment does not discuss how that would work or establish any uniform procedure. Such “vagueness makes it impossible for the defendants to know exactly what the injunction requires of them” and places me in an untenable position if I am ever asked to enforce this indeterminate provision via coercive contempt. Chandler, 180 F.3d at 1274 n.20 (Tjoflat, J., specially concurring); see also Goble, 682 F.3d at 949. There is no obligation that a court invite such problems by entering a consent judgment composed with insufficient clarity.

C. The Consent Judgment's Individualized Relief Treats Burger More Favorably Compared to Similarly Situated Male Employees

Finally, the consent judgment raises fairness concerns based on its distribution of monetary damages to individual male employees. The consent judgment provides that Tampa will pay Burger $60,000 and pay an additional $240,000 into a common settlement fund to cover similarly situated employees. Consent J. ¶¶ 24, 27. The United States will then notify every male employee who received secondary caregiver leave between February 2017 and December 2018 to solicit potential claimants, evaluate any resulting claims, and determine “in its sole discretion” if the claimants are entitled to monetary relief. Id. ¶¶ 28–37.

There are a substantial number of potential claimants, see Joint Stipulation ¶ 22 (explaining that 146 other male employees received secondary caregiver leave between February 2017 and December 2018), and at least nine, like Burger, submitted formal requests for primary caregiver leave that were denied, see id. ¶ 23. Under these circumstances, it is unclear that distributing one fifth of the total monetary relief to Burger is fair to similarly situated employees who may have suffered an equal or greater harm. Although not binding with respect to the terms of a Title VII consent judgment, the principle animating the Eleventh Circuit's ban on incentive awards for named plaintiffs—that courts should “carefully scrutinize[e] settlements that give class representatives preferred treatment,” Johnson v. NPAS Sols., LLC, 975 F.3d 1244, 1259 n.9 (11th Cir. 2020)—suggests that providing an outsized monetary award to one particular victim of discrimination before the United States even reviews other victims’ claims is neither fair nor reasonable.

IV. CONCLUSION

For these reasons, and the reasons I expressed at the hearing, I DENY the Amended Motion for Entry of Consent Judgment (Doc. 12). The parties may move for entry of an amended consent judgment consistent with this Order or enter into a private settlement agreement that distributes monetary and paid leave to individual male employees for past wrongs but does not require the imprimatur of a federal court to realize.

ORDERED in Tampa, Florida, on June 21, 2024.

FOOTNOTES

1.   The parties’ arguments at the hearing sometimes sounded in mootness and voluntary cessation, rather than standing and the ability to show an immediate risk of future harm. See Hr'g Tr. at 11:19–12:20. Mootness and voluntary cessation, though, are inapplicable. Standing is assessed “at the time the action commences.” Friends of the Earth, Inc. v. Laidlaw Env't Servs., Inc., 528 U.S. 167, 191, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). “In contrast, by the time mootness is an issue, the case has been brought and litigated.” Id. In other words, “a case becomes moot while it pends before [the court].” Keister v. Bell, 29 F.4th 1239, 1250 (11th Cir. 2022); see also Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 109, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (rejecting a similar attempt by the United States to employ mootness principles in the standing analysis). Tampa ceased discriminating in the manner alleged in the complaint before this lawsuit was filed in December 2023, so standing is the applicable doctrine, not mootness and voluntary cessation.

2.   That the United States is the plaintiff in this case does not change the analysis. Even when enforcing broad federal antitrust statutes against alleged monopolists, the United States has been required to show that a threatened violation of federal law is more than hypothetical. See Indus. Ass'n of S.F. v. United States, 268 U.S. 64, 84, 45 S.Ct. 403, 69 L.Ed. 849 (1925) (“[W]hatever may have been the original situation, the [allegedly anticompetitive] practice was abandoned long before the present suit was instituted, and nothing appears by way of threat or otherwise to indicate the probability of its ever being resumed. Under these circumstances, there is no basis for present relief by injunction.”). That principle applies with at least equal force here, where the United States seeks injunctive relief against a local government, employing what is essentially a presumption of bad faith to transform stale bad acts under a different policy into a federal enforcement regime that will extend years into the future. Cf. Pub. Util. Comm'n of the State of Cal. v. United States, 355 U.S. 534, 538–39, 78 S.Ct. 446, 2 L.Ed.2d 470 (1958) (contrasting suit for declaratory relief against a state entity that “plainly indicated an intent to enforce” state law against the federal government with a suit to merely “guard against the possibility” of such enforcement).

Kathryn Kimball Mizelle, United States District Judge