_________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT _________________________________________________________ No. 11-1241 _________________________________________________________ U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and DENNIS ANDERSON, Plaintiff-Intervenor, v. PRODUCT FABRICATORS, INC., Defendant-Appellee. _________________________________________________________ On Appeal from the United States District Court for the District of Minnesota The Hon. Paul A. Magnuson _________________________________________________________ OPENING BRIEF OF THE PLAINTIFF-APPELLANT U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION _________________________________________________________ P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel JUSTIN MULAIRE Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE Washington, D.C. 20507 (202) 663-4741 justin.mulaire@eeoc.gov SUMMARY OF THE CASE AND WAIVER OF ORAL ARGUMENT The U.S. Equal Employment Opportunity Commission ("EEOC") filed this suit against Product Fabricators, Inc. ("PFI") under the Americans with Disabilities Act, 42 U.S.C § 12101 et seq. The EEOC's Complaint alleges that since at least 1995 PFI has engaged in an ongoing pattern or practice of making unlawful medical inquiries, as well as an ongoing pattern or practice of unlawfully failing to maintain the confidentiality of medical information about employees. The Complaint also alleges that PFI discharged Dennis Anderson ("Anderson") because of his disability and/or pursuant to an unlawful medical inquiry. The parties negotiated a proposed consent decree that would provide injunctive relief designed to ensure compliance with the ADA by PFI. All parties consented to the proposed decree. The district court rejected the proposed consent decree on the ground that the EEOC had not pointed to instances of conduct by PFI that would provide a basis for the district court to exercise continuing jurisdiction over the case by entering a consent decree. The district court's rejection of the proposed decree was an abuse of discretion, as it was based on an erroneous legal standard for granting injunctive relief in the context of a settlement, as well as on clear errors of fact. Because the governing legal standards are clear, the EEOC believes that oral argument is unnecessary. TABLE OF CONTENTS SUMMARY OF THE CASE AND WAIVER OF ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . .i STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Course of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 B. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 C. District Court's Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 THE DISTRICT COURT ABUSED ITS DISCRETION WHEN IT REJECTED THE PROPOSED CONSENT DECREE . . . . . . . . . . . . . . . . . . . . . . . . . 11 A. The denial of a request for entry of a consent decree is reviewed for abuse of discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 B. The district court applied an erroneous legal standard when it required the EEOC to provide a factual basis for injunctive relief to which all parties had consented . . . . . . . . . . . . . . . . . . . . . . . 12 C. The district court's factual analysis was clearly erroneous . . . . . . . . . 18 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 TABLE OF AUTHORITIES CASES Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) . . . . . . . . . . . . . . . . . . 12 Angela R. by Hesselbein v. Clinton, 999 F.2d 320 (8th Cir. 1993) . . . . . . . . . . . . 21 Carson v. American Brands, Inc., 450 U.S. 79 (1981) . . . . . . . . . . . . . . 1, 2, 3, 12 Christina A. ex rel. Jennifer A. v. Bloomberg, 315 F.3d 990 (8th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Durrett v. Housing Authority of the City of Providence, 896 F.2d 600 (1st Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 21 EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448 (6th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Grunin v. Int'l House of Pancakes, 513 F.2d 114 (8th Cir. 1975) . . . . . . . . . . .13, 16 In re Int'l House of Pancakes Franchise Litig., 487 F.2d 303 (8th Cir. 1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Little Rock Sch. Dist. v. Pulaski Cnty. Spec. Sch. Dist. No. 1, 921 F.2d 1371 (8th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501 (1986) . . . . . . . . . . . . . . . . . . . . . . . . 9, 15, 16, 17, 18 Morgenstern v. Wilson, 29 F.3d 1291 (8th Cir. 1994) . . . . . . . . . . . . . . . . . . . 1 Petrovic v. Amoco Oil Co., 200 F.3d 1140 (8th Cir. 1999) . . . . . . . . . . . . . . 11, 12 Picon v. Morris, 933 F.2d 660 (8th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . 14 SEC v. Randolph, 736 F.2d 525 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . 13, 21 Swift & Co. v. U.S., 276 U.S. 311 (1928) . . . . . . . . . . . . . . . . . . . . . 15, 19 U.S. v. Bailey, 571 F.3d 791 (8th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . 12 U.S. v. BP Amoco Oil PLC, 277 F.3d 1012 (8th Cir. 2002) . . . . . . . . . . . . . . .11, 13 U.S. v. City of Alexandria, 614 F.2d 1358 (5th Cir.1980) . . . . . . . . . . . . . . . 11 U.S. v. City of Miami, Fla., 664 F.2d 435 (Former 5th Cir. 1981) . . . . . . . . . . . .21 U.S. v. Fisher, 864 F.2d 434 (7th Cir.1988) . . . . . . . . . . . . . . . . . . . . . 14 U.S. v. Metropolitan St. Louis Sewer Dist., 952 F.2d 1040 (8th Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . 12, 16 Walling v. Miller, 138 F.2d 629 (8th Cir. 1943) . . . . . . . . . . . . . . . . . . . . .20 Woods Brothers Const. Co. v. Yankton County, S.D., 54 F.2d 304 (8th Cir. 1931) . . . . . . . . . . . . . . . . . . . . . . . . . . .20 STATUTES 28 U.S.C. § 1292(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 2, 3 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 33 U.S.C. § 1319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 42 U.S.C. § 2000e-5(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 42 U.S.C. § 2000ff et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 42 U.S.C. § 12101 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i, 1 42 U.S.C. § 12112(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 42 U.S.C. § 12112(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 42 U.S.C. § 12117(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1, 15 RULES Fed. R. Civ. P. 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 STATEMENT OF JURISDICTION This is an enforcement action brought by the EEOC pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., to enjoin certain alleged ongoing violations of that act and to recover monetary relief. The district court had jurisdiction under 28 U.S.C. § 1331 and 42 U.S.C. § 12117(a). The district court denied the EEOC's motion for entry of a consent decree containing injunctive relief on November 30, 2010. The EEOC filed a timely notice of appeal on January 27, 2011. App. 66.<1> This Court has jurisdiction under 28 U.S.C. § 1292(a)(1). With exceptions not applicable here, courts of appeals have jurisdiction of appeals from "[i]nterlocutory orders of the district courts ... refusing ... injunctions...." 28 U.S.C. § 1292(a)(1); see Morgenstern v. Wilson, 29 F.3d 1291, 1294-95 (8th Cir. 1994). Moreover, even if an interlocutory order does not expressly refuse an injunction, it is still appealable under § 1292(a)(1) if it "has the practical effect of refusing an injunction" and "might have serious, perhaps irreparable, consequence, and ... can be effectually challenged only by immediate appeal...." See Carson v. American Brands, Inc., 450 U.S. 79, 83-84 (1981) (internal quotation marks omitted). In this case, the district court's order expressly refused to enter the EEOC's "Motion for Approval of Consent Decree with Injunctive Relief and Continuing Jurisdiction." A1, App. 64. The proposed consent decree would enjoin an ongoing pattern or practice of medical inquiries that violate the ADA, would enjoin further use of medical information collected through those inquiries, and would require the destruction of records containing unlawfully-obtained medical information within 30 days, in addition to enjoining other forms of disability discrimination and retaliation. A5-6, App. 38-39. The order denying entry of this decree therefore expressly refused several injunctions and is appealable under § 1292(a)(1). Even if the order were treated as merely having the practical effect of refusing these injunctions, rather than as an express refusal of them, the order would still be appealable pursuant to § 1292(a)(1), under the Carson standard. As did the plaintiffs in Carson, the EEOC asserts certain ongoing violations of federal employment discrimination law, and so failure to immediately review the district court's order would deprive the EEOC of the prompt modifications to PFI's practices and other prospective injunctive relief that would be ensured by the decree. Moreover, this case is on the verge of trial, and the district court's decision has "effectively ordered the parties to proceed to trial and to have their respective rights and liabilities established within limits laid down by that court." See Carson, 450 U.S. at 87. "[T]he District Court's order might thus have the serious, perhaps irreparable, consequence of denying the parties their right to compromise their dispute on mutually agreeable terms." Id. at 88; see also Durrett v. Housing Authority of the City of Providence, 896 F.2d 600, 602 (1st Cir. 1990). Therefore, a lack of immediate appellate review would have a serious and possibly irreparable consequence of compelling the EEOC to give up the substantial injunctive relief that the parties agreed upon or else proceed to trial. The order therefore satisfies the standard set forth in Carson and is appealable under § 1292(a)(1). STATEMENT OF THE ISSUE Whether the district court abused its discretion when it denied the EEOC's Motion for Approval of Consent Decree with Injunctive Relief and Continuing Jurisdiction. STATEMENT OF THE CASE A. Course of Proceedings On August 31, 2009, the EEOC filed this action against PFI, alleging that: under its Drug Policy, PFI had made unlawful medical inquiries of its employees, in violation of § 102(d) of the ADA, 42 U.S.C. § 12112(d); that it had failed to treat medical information collected about employees as confidential, in violation of § 102(d) of the ADA, 42 U.S.C. § 12112(d); and that it discharged Anderson because of his disability and/or as a result of an unlawful application of the Drug Policy, in violation of § 102(a) of the ADA, 42 U.S.C. § 12112(a). App. 9, 11. Anderson intervened, asserting a claim under the ADA and claims under state law. After discovery, the parties negotiated a proposed consent decree. A3-15, App. 30-31, 34-48. The district court refused to enter the decree on November 30, 2010. B. Statement of Facts Since at least 1995, PFI has maintained a "Drug Policy," which provides, in part: Employees should report to their supervisor when they are taking any medication, prescription or over-the-counter, known to cause dizziness or drowsiness or that might affect any of their senses, motor ability, judgment, reflexes or otherwise affect their ability to perform their job. Any violation of this policy may result in discipline up to and including termination. App. 11, 60. The EEOC's challenges to PFI's application of its Drug Policy, which the EEOC alleged violated the medical inquiry and confidentiality provisions of the ADA, and to PFI's decision to discharge Anderson were resolved through the negotiation of a consent decree. The proposed decree contains several injunctive provisions prohibiting PFI from engaging in certain types of disability discrimination or retaliation, including: (i) a prohibition against requiring "employees to submit to disability-related inquiries without first having reason to believe, based on objective evidence, that an individual employee either has a current condition or impairment that renders him or her unable to perform the essential functions of his or her position with or without a reasonable accommodation, or the employee's condition or impairment poses a direct threat to the employee or others"; (ii) a prohibition against PFI's further use of any medical information obtained pursuant to its Drug Policy on or before the date of entry of the decree; (iii) a requirement that PFI destroy any tangible evidence of such medical information within 30 days of entry of the decree; and (iv) a requirement that PFI revise its Drug Policy within 30 days of entry of the decree to conform to the provisions of the decree, the ADA, and the Genetic Information Nondiscrimination Act, 42 U.S.C. § 2000ff et seq. A5-6, App. 38-39 (Proposed Consent Decree §§ V, VI(A)). The decree also requires annual training of employees about the ADA, the posting of an agreed-upon notice to employees, periodic reporting of certain matters to the EEOC, and the payment of certain monetary relief to Anderson. A6-10, App. 39-43. The proposed decree also contains a paragraph titled "Dispute Resolution," which provides: The EEOC will give PFI twenty (20) business days notice of any alleged noncompliance with the terms of the Decree before initiating enforcement actions under this Decree. If PFI has not remedied the alleged non-compliance or has not satisfied the EEOC that it has complied with the Decree at the end of that period, the EEOC may apply to the Court for appropriate relief. The dispute resolution proceedings in this Section do not apply to those cases where the EEOC has determined the need to seek immediate injunctive or other extraordinary relief. A10-11, App. 43-44 (Proposed Consent Decree § XII). Section IV of the proposed decree provides that it would remain in effect for a term of two years following entry, and that, "During the term of the Consent Decree, the Court shall retain jurisdiction of this cause for purposes of compliance and any disputes that may arise hereunder." A5, App. 38. On October 4, 2010, the EEOC submitted the proposed decree to the assigned district judge. App. 30, 34. On October 12, 2010, a member of the district court's staff informed the EEOC "that the Court had reservations about approving the Consent Decree with terms that provide for continuing jurisdiction by the Court." App. 31 (Declaration of Nicholas J. Pladson,¶ 4). Thereafter, the district court permitted each party to send an additional letter to the court concerning the proposed decree. App. 31-32. The EEOC explained that a decree would have both greater deterrent value and would be more efficient to enforce than would a private settlement agreement. App. 51 (October 19, 2010 letter from EEOC to district court, at 2). The EEOC's letter continued: In practical terms, however, the EEOC does not expect to engage ... the court to enforce the decree. As this Court is aware from its prior experience retaining jurisdiction over EEOC consent decrees, parties that have devoted the time and effort to negotiating a comprehensive settlement agreement are unlikely to violate its terms. While not impossible, it seems unlikely that PFI would incur additional expenses by violating the consent decree during the next two years. Additionally, the consent decree contains a dispute resolution clause (Section XII) that is a prerequisite to seeking relief from the Court. Given the parties' interests in avoiding the further litigation expenses, this dispute resolution mechanism will likely resolve any conflicts that arise during the two-year term without court involvement. Nevertheless, the ability of the EEOC or another party to move quickly to enforce the consent decree remains an essential mechanism to protect the integrity of the decree and ensure compliance. App. 51. Anderson also submitted a letter to the district court in support of entry of the consent decree, noting that the "reasons [offered by the EEOC] for asking the Court to retain jurisdiction in this case are borne out by the fact that despite her signing the Consent Decree and agreeing to all of its terms on behalf of her client almost a month ago, [PFI's counsel] has now decided to urge you not to approve the Decree." App. 62. In PFI's letter to the court, it conceded that it had agreed to the proposed consent decree. App. 55 (October 22, 2010 letter from PFI to district court, at 2) ("While PFI would have liked to have settled this lawsuit informally, it did, after negotiations with the EEOC, agree to a Consent Decree...."). Nevertheless, PFI's letter opposed entry of the proposed decree. App. 54. PFI recounted the history of settlement, stated that it intended to comply with the provisions of the parties' agreement, and argued that "there is no need for the Court to retain jurisdiction over the Consent Decree herein." App. 54-55. The district court's staff subsequently informed the parties that the district court remained opposed to retaining jurisdiction over a consent decree, and that the parties could either enter into a private settlement agreement and file a stipulation of dismissal or else file a motion for entry of the injunctive relief. On November 8, 2010, the EEOC filed a Motion for Approval of Consent Decree with Injunctive Relief and Continuing Jurisdiction. In a supporting memorandum, the EEOC outlined the violations of the ADA that were alleged in its complaint, described the relief contained in the proposed decree, and noted that all parties had consented to the proposed decree and that no third party's rights would be adversely affected by the proposed decree. App. 21-22, 25. PFI opposed the motion, arguing that there was no need for a consent decree, that there was no basis for the Court to exercise continuing jurisdiction over the matter, and that the case could be resolved by a private settlement agreement. PFI did not dispute that it had consented to the proposed decree, has not sought permission to withdraw its consent, and has not identified any basis for doing so.<2> C. District Court's Decision On November 30, 2010, the district court denied the EEOC's motion ("M&O"). After noting that a district court must review a proposed consent decree for fairness, reasonableness, and adequacy, the court continued, "It is also important to recognize, however, that 'a federal court is more than a recorder of contracts from whom parties can purchase injunctions.'" A2, App. 65 (M&O at 2 (quoting Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 525 (1986))). The court then held that "the Consent Decree in this case that requires the Court to retain jurisdiction is unreasonable." A2, App. 65 (M&O at 2). The court explained: Indeed, as Plaintiff readily admits, it "does not expect to engage ... the court to enforce the decree." Plaintiff points neither to present nor to past instances of Defendant's conduct that would render continuing jurisdiction appropriate. Additionally, contained in the consent decree is a dispute resolution clause to which the parties must adhere before seeking any relief from the Court. This clause's existence renders the Court's exercise of continuing jurisdiction even less appropriate. A2, App. 65 (quoting EEOC's October 19, 2010 letter, App. 51) (alteration in M&O). The district court subsequently informed the parties that the action, if not dismissed by stipulation, would be set for trial. SUMMARY OF ARGUMENT The district court abused its discretion in refusing to enter the consent decree agreed to by the parties. The district court based its decision on an erroneous legal standard. A court inherently and automatically has jurisdiction to enforce its injunctions and consent decrees because they are, by definition, orders of the court. Therefore the district court's requirement that the EEOC provide a factual basis for the exercise of continuing jurisdiction was, in essence, a requirement that the EEOC prove instances of conduct that would support an award of injunctive relief. That was an erroneous legal standard to apply to a proposed consent decree, because while a plaintiff must prove intentional discrimination in order to obtain an injunction following a judgment on the merits, the parties' consent is all that is required to support injunctive relief as part of a settlement. The district court also based its decision on a clearly erroneous analysis of the facts. To the extent that the district court did not mean to require the EEOC to prove instances of misconduct but rather only required that the EEOC "point[] to" such conduct, the EEOC clearly did so. In support of its motion for entry of the proposed consent decree, the EEOC described the three violations of the ADA referenced in the EEOC's complaint, including two ongoing unlawful practices and the discharge of Anderson because of disability. Therefore the district court's statement that the EEOC had not pointed to such conduct was clearly erroneous. The district court also clearly erred in two other factual determinations. Based on the EEOC's statement that it did not expect to engage the court to enforce the consent decree, the court appears to have determined that judicial enforcement would likely not be needed even in the absence of a consent decree. That assumes, incorrectly, that the deterrent effect of a private settlement agreement would be the same as that of a consent decree. Likewise, the district court concluded that the presence of a dispute resolution procedure in the proposed decree lessened the need for entering the decree in the first place. This conclusion is not logical, however, since the dispute resolution procedure merely consists of a notice-to-cure period followed by an application for relief from the district court. ARGUMENT THE DISTRICT COURT ABUSED ITS DISCRETION WHEN IT REJECTED THE PROPOSED CONSENT DECREE A. The denial of a request for entry of a consent decree is reviewed for abuse of discretion. In general, this Court reviews a district court's decision to approve or reject a proposed settlement document for abuse of discretion. See U.S. v. BP Amoco Oil PLC, 277 F.3d 1012, 1019 (8th Cir. 2002) (reviewing decision to grant government's motion to enter consent decree); Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1148 (8th Cir. 1999) ("The district court's assessment as to the reasonableness of a settlement will not be overturned unless the party challenging the settlement clearly shows that the district court abused its discretion."); In re Int'l House of Pancakes Franchise Litigation, 487 F.2d 303, 304 (8th Cir. 1973) (reviewing rejection of proposed class settlement for abuse of discretion); but see U.S. v. City of Alexandria, 614 F.2d 1358, 1361 (5th Cir.1980) (applying heightened scrutiny to district court's rejection of a proposed consent decree that district court failed to explain in detail or support with facts), distinguished in Petrovic, 200 F.3d at 1149. "A district court abuses its discretion when it bases its decision on a legal error or a clearly erroneous finding of fact." U.S. v. Bailey, 571 F.3d 791, 804 (8th Cir. 2009). In the case at bar, the district court based its decision to reject the consent decree on an erroneous legal standard, and it clearly erred in its factual analysis, as well. B. The district court applied an erroneous legal standard when it required the EEOC to provide a factual basis for injunctive relief to which all parties had consented. "When reviewing a proposed consent decree, the trial court is to review the settlement for fairness, reasonableness, and adequacy." U.S. v. Metropolitan St. Louis Sewer District, 952 F.2d 1040, 1044 (8th Cir. 1992). However, "[a] strong public policy favors agreements, and courts should approach them with a presumption in their favor." Little Rock School District v. Pulaski County Special School District No. 1, 921 F.2d 1371, 1388 (8th Cir. 1990); see also id. at 1391 (settlement agreements submitted for court approval "are presumptively valid"). The law's preference for settlements is particularly strong with respect to employment discrimination claims. See Carson, 450 U.S. at 88 n.14; Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974). Moreover, when the plaintiff is an executive branch agency responsible for enforcement of the statute that provides the legal basis for the consent decree, courts should defer to the agency's experience and expertise in handling such matters. See BP Amoco Oil, 277 F.3d at 1019 ("We therefore exercise restraint on review-because we are deferring both to the EPA's inherent experience and expertise in handling such matters [apportionment of environmental cleanup costs] and to the district court's carefully-exercised informed discretion."); see also SEC v. Randolph, 736 F.2d 525, 528-29 (9th Cir. 1984) (reversing district court's decision that entry of consent decree was "unnecessary" because private agreement between the parties would suffice, and explaining that "the courts should pay deference to the judgment of the government agency which has negotiated and submitted the proposed judgment"). Here, the district court identified no reason to believe that the proposed consent decree would be unfair or inadequate, either to the parties or to the interests of any third parties.<3> Nor did the district court find the substance of any provision in the consent decree to be unreasonable. The sole ground for the district court's rejection of the proposed decree was that it was "unreasonable" because the EEOC did not "point[] to ... instances of Defendant's conduct that would render continuing jurisdiction appropriate." A2, App. 65. However, a consent decree or injunction is, by definition, an order of the court and is therefore inherently and automatically subject to the court's continuing jurisdiction: Ordinarily, a district court retains the inherent authority to modify or enforce a consent decree.... This is true even without a provision in the decree which provides for continuing jurisdiction. '[W]hen a court issues an injunction, it automatically retains jurisdiction to enforce it.' Picon v. Morris, 933 F.2d 660, 662 (8th Cir. 1991) (quoting U.S. v. Fisher, 864 F.2d 434, 436 (7th Cir.1988)). Indeed, "consent decrees are distinguishable from private settlements by the means of enforcement." Christina A. ex rel. Jennifer A. v. Bloomberg, 315 F.3d 990, 993 (8th Cir. 2003). "Consent decrees ... are enforceable through the supervising court's exercise of its contempt powers, and private settlements [are] enforceable only through a new action for breach of contract." Id. (internal quotation marks omitted, alterations in original). Therefore, the district court's decision that there was no basis for it to exercise continuing jurisdiction over the parties' agreement can only be understood as a decision that there was no basis for entry of the parties' agreed-upon relief as an injunction because the EEOC had not pointed to conduct by PFI to justify such an order. As explained below, the EEOC had obviously identified ongoing unlawful conduct in its complaint, and so the district court's concern with a purported failure to point to such conduct appears to mean that the district court required the EEOC to have proved its case to obtain entry of the decree. In short, the legal standard that the district court applied in evaluating the proposed consent decree was whether the EEOC had proven instances of conduct by PFI that would provide a basis for injunctive relief. It is true, in general, that a plaintiff must prove that a defendant has engaged in intentional discrimination in order to obtain injunctive relief under the ADA. See 42 U.S.C. § 2000e-5(g)(1) (incorporated by reference into the ADA by 42 U.S.C. § 12117(a)). However, that prerequisite to injunctive relief does not apply when all parties have consented to such relief. "[T]he parties' consent animates the legal force of a consent decree." Local No. 93, 478 U.S. at 525; see also Swift & Co. v. U.S., 276 U.S. 311, 327 (1928) (antitrust consent decree valid, even though government did not prove facts or obtain admissions of fact needed to support antitrust injunction). In Local No. 93, the Supreme Court held that § 706(g) of Title VII, 42 U.S.C. § 2000e-5(g), which limits remedial relief that can be ordered by courts, does not apply when such relief was agreed to by the parties in a consent decree: [I]t is the agreement of the parties, rather than the force of the law upon which the complaint was originally based, that creates the obligations embodied in a consent decree. Consequently whatever the limitations Congress placed in § 706(g) on the power of federal courts to impose obligations on employers or unions to remedy violations of Title VII, these simply do not apply when the obligations are created by a consent decree. 478 U.S. at 522-23. Likewise, this Court has held that statutory standards for civil penalties under the Clean Water Act do not apply to penalties agreed upon in a consent decree. See Metropolitan St. Louis Sewer District, 952 F.2d at 1044 ("[T]he District Court was not required to apply the standards of [33 U.S.C.] section 1319(d), which spells out the factors to be used in determining the appropriate civil penalty to be levied against a party found to be in violation of the Clean Water Act."). "A consent decree is not reviewed as a judgment on the merits." Id. This Court has cautioned that "neither the trial court in approving the settlement nor this Court in reviewing that approval have the right or the duty to reach any ultimate conclusions on the issues of fact and law which underlie the merits of the dispute." Grunin, 513 F.2d at 123 (internal quotation marks omitted). Accordingly, it was legal error for the district court to require that the EEOC prove facts sufficient to support an award of injunctive relief when all parties had consented to such relief. If the parties' consent is all that is required to support injunctive relief that goes beyond what the court could award at trial, see Local No. 93, 478 U.S. at 522-23, it follows a fortiori that the parties' consent is also sufficient to support injunctive relief that the EEOC could obtain at trial following proof of intentional discrimination. The district court prefaced its holding by quoting the Supreme Court's comment in Local No. 93 that "a federal court is more than a recorder of contracts from whom parties can purchase injunctions." See A2, App. 65 (quoting 478 U.S. at 525). The sentences that immediately follow that comment in Local No. 93 make clear, however, that it was merely the introduction to a discussion of three specific limitations on relief that may be provided by consent decree, none of which is implicated here: Accordingly, a consent decree must spring from and serve to resolve a dispute within the court's subject-matter jurisdiction. Furthermore, consistent with this requirement, the consent decree 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. However, in addition to the law which forms the basis of the claim, the parties' consent animates the legal force of a consent decree. 478 U.S. at 525 (emphasis supplied, internal citations and quotation marks omitted). In light of the question presented in Local No. 93 - whether a court could enter a consent decree providing for relief beyond what the court could award at trial - the passage quoted above merely explains that the consent of the parties is not sufficient to support an injunction that is beyond the subject matter jurisdiction of the district court, beyond the scope of the claims asserted in the complaint, or contrary to the objectives of the law that was the basis of the claims. In this case, the proposed consent decree implicates none of those concerns. There is no dispute that the district court has subject matter jurisdiction over this ADA action. The injunctive relief sought in the proposed consent decree is within the scope of the ADA claims asserted in the EEOC's complaint. The district court has identified nothing in the consent decree that is contrary to the objectives of the ADA. Local No. 93 offers no support for the legal standard that the district court applied to the EEOC's motion for entry of the proposed consent decree. C. The district court's factual analysis was clearly erroneous. The district court also abused its discretion by resting its decision on a clearly erroneous analysis of the facts. To the extent that the district court's decision could be understood as literally requiring only that the EEOC "point to" (rather than prove) conduct that would support injunctive relief, see A2, App. 65, the EEOC clearly did so. The memorandum the EEOC filed in support of its motion to approve the proposed consent decree pointed to several violations of the ADA alleged in its complaint, including two longstanding and ongoing patterns-or- practices of violations of the ADA's medical inquiries and confidentiality provisions and the related discharge of Anderson because of disability. See App. 21-22. The EEOC also summarized its factual allegations and legal claims in the Statement of the Case that the EEOC filed earlier in the litigation at the direction of the district court. App. 16-20. Were this matter to proceed to a trial on the merits, any one of the instances of intentional discrimination identified by the EEOC would be sufficient to support an award of injunctive relief. See, e.g., EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448, 467-68 (6th Cir. 1999) (EEOC may obtain injunctive relief even where it identifies only a single aggrieved individual). Because the EEOC sought remedies that would ensure not only the reform of practices PFI had followed for the past 16 years, but also that PFI would not rely in the future on unlawfully obtained medical information in making employment decisions, it is essential to enlist the court's continuing jurisdiction to ensure that future compiance. In fact, as Anderson pointed out to the district court, PFI has already disavowed a material term of the parties' settlement when it opposed entry of the consent decree. App. 62. Far from demonstrating that there is no reasonable likelihood of further noncompliance with the law, this provides some reason to doubt that PFI is committed to honoring all of the other provisions of the agreement in the absence of a strong deterrent. More importantly, having consented to the proposed injunctive relief, PFI cannot now argue that it is without adequate support. When a defendant consents to a proposed decree, it waives any contention about the adequacy of the factual or legal basis for the injunctive relief contained therein. See Swift & Co., 276 U.S. at 327 (Any error "in finding in these allegations [in the government's complaint] a basis for fear of future wrong sufficient to warrant an injunction.... is waived by the consent to the decree."); Walling v. Miller, 138 F.2d 629, 631 (8th Cir. 1943) (defendant may not obtain appellate review of consent decree on matters going to the merits of the cause because defendant's consent waives any objection to the merits of a consent decree); Woods Bros. Const. Co. v. Yankton County, S.D., 54 F.2d 304, 308 (8th Cir. 1931) ("A judgment by consent or agreement operates as a waiver of all defects or irregularities in the process, pleadings, or other proceedings previous to the rendition of the judgment, except such as involve the jurisdiction of the court." (internal quotation marks omitted)). Accordingly, having consented to the proposed injunctive relief, PFI has waived any argument concerning the adequacy of the factual or legal basis for that relief. The district court also clearly erred in its reading of the EEOC's comment that the agency did not anticipate having to engage the court "to enforce the decree." A2, App. 65 (quoting October 19, 2010 letter from EEOC to district court, App. 51). The court concluded from the EEOC's comment that even in the absence of a consent decree, disputes would be unlikely. That inference is illogical because it assumes that the same deterrent effects of a consent decree would be present in the absence of a consent decree. The deterrent effect of a consent decree - readily enforceable by contempt - is plainly not matched by that of a private settlement agreement that can only be enforced by commencing a new lawsuit for breach of contract. "A consent decree offers more security to the parties than a settlement agreement where the only penalty for failure to abide by the agreement is another suit." Randolph, 736 F.2d at 528 (internal quotation marks and citations omitted) (citing U.S. v. City of Miami, Fla., 664 F.2d 435, 439 (Former 5th Cir. 1981) (en banc) (plurality opinion)). Accordingly, the EEOC's comment about the likelihood of enforcement proceedings in the event that the consent decree is approved provides no basis for the district court's conclusion that there is no need for a consent decree.<4> Similarly, the court also clearly erred when it concluded that the existence of a dispute resolution procedure in the proposed decree would make it "even less appropriate" for the court to exercise jurisdiction over a consent decree. A2, App. 65. The court offers no explanation for this statement, but it appears to mean that because the parties have agreed upon a dispute resolution procedure, disputes are even less likely to occur than if there were no such procedure and that there is thus even less need for injunctive relief than there might otherwise be. That reasoning, however, is also erroneous. The dispute resolution procedure merely imposes a notice-to-cure period as a prerequisite to applying to the district court for relief. A10, App. 43. The dispute resolution procedure does not provide any other means of enforcing the parties' agreement apart from such an application to the court, and so the procedure is toothless if it is stripped of recourse to "enforcement actions under this decree." A10, App. 43.<5> Therefore, the dispute resolution procedure, far from being a substitute for enforcement by contempt, depends entirely upon the prospect of such enforcement. Accordingly, the factual analysis upon which the district court based its rejection of the proposed consent decree was clearly erroneous. CONCLUSION For the foregoing reasons, the EEOC respectfully requests that this Court reverse the district court's order denying entry of the proposed consent decree. Further, as the sole ground identified by the district court for its decision is without merit, the EEOC respectfully requests that this action be remanded with directions that the proposed consent decree be entered. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel _s/ Justin Mulaire____________ JUSTIN MULAIRE Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE Washington, D.C. 20507 (202) 663-4741 justin.mulaire@eeoc.gov Dated: March 14, 2011 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 5,899 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 it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. Pursuant to 8th Cir. R. 28A(h)(2), the electronic versions of this brief and the addendum have been scanned for viruses prior to filing and are virus free. _s/ Justin Mulaire____________ JUSTIN MULAIRE Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE Washington, D.C. 20507 (202) 663-4741 justin.mulaire@eeoc.gov Dated: March 14, 2011 CERTIFICATE OF SERVICE I hereby certify that on today's date I served a copy of the foregoing brief by electronic means, via the Court's CM/ECF system, and served a copy of the EEOC's Appendix by First Class Mail, postage pre-paid, to the following counsel of record: Counsel for Defendant/Appellee: Marlene S. Garvis Jardine Logan & O'Brien PLLP 8519 Eagle Point Blvd., Ste. 100 Lake Elmo, MN 55042 Counsel for Plaintiff-Intervenor: James R. Andreen Erstad & Riemer, PA 8009 34th Ave. South, Ste. 200 Minneapolis, MN 55425 _s/ Justin Mulaire____________ JUSTIN MULAIRE Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE Washington, D.C. 20507 (202) 663-4741 justin.mulaire@eeoc.gov Dated: March 14, 2011 ADDENDUM ********************************************************************************** <> <1> All references to "App." are to pages in the EEOC's Separate Appendix, and all references to "A" are to the Addendum to this brief. <2> The EEOC understands that Anderson and PFI may have reached an agreement to settle Anderson's claims through a private agreement. The terms of any such agreement are not known to the EEOC. <3> In a class action under Rule 23 of the Federal Rules of Civil Procedure, the most frequent context in which the fair, reasonable, and adequate standard is applied, the district court serves as "a fiduciary who must serve as a guardian of the rights of absent class members." See Grunin v. International House of Pancakes, 513 F.2d 114, 123 (8th Cir. 1975). Since this action is not a Rule 23 class action, the district court's role in evaluating the substance of the parties' agreement is necessarily more limited than in many of this Court's cases that review district court decisions to approve or reject settlement agreements. <4> This is not a case in which there has been a finding that implementation of the consent decree would impose an unreasonable burden upon the court. Cf. Angela R. by Hesselbein v. Clinton, 999 F.2d 320, 326 (8th Cir. 1993) (district court not required to approve consent decree that was likely to involve "extended judicial involvement" and consume substantial judicial resources in overseeing the management of a state agency); Little Rock School District, 921 F.2d at 1383 ("A court has a strong interest in not involving itself, along with the prestige of the law, in an ongoing equitable decree which is either manifestly unworkable or plainly unconstitutional on its face."); Durrett, 896 F.2d at 604-05 (district court abused discretion in rejecting consent decree on the ground of unreasonable burden to the court where resolution of disputes would entail only "minimal judicial involvement"). The district court's order in this case did not identify unreasonable burden on the court has a ground for its rejection of the decree. To the contrary, the district court apparently concluded that disputes requiring the assistance of the court were likely to be infrequent. <5> Even if the district court meant to suggest that, even without enforcement through contempt proceedings, the dispute resolution procedure could provide for enforcement through a new lawsuit for breach of contract, the district court's factual analysis would still be clearly erroneous. As discussed above, it is incorrect to assume that the dispute resolution procedure would have the same deterrent effect if the simple and relatively swift procedure of applying to the court for a contempt proceeding were replaced with a substantially more time-consuming and cumbersome alternative of a new lawsuit.