27 Fair empl.prac.cas. 913, 27 Empl. Prac. Dec. P 32,328 United States of America v. The City of Miami, Florida v. Fraternal Order of Police, City of Miami Lodge No. 20, Kenneth R. Harrison, President, and the Miami Police Benevolent Association

The en banc court has been unable to arrive at a majority consensus as to reasoning and result in this case. Those concurring in the opinion prepared by Judge Gee would, for the reasons stated there, grant broader relief to the Appellant Fraternal Order of Police and a wider remand than would those concurring in the opinion prepared by Judge Rubin. Since all concurring in either opinion referred to agree, however, that at least the relief mandated by Judge Rubin's opinion should be granted, and since no majority exists to grant broader relief, it is that mandate which becomes the order of the court by which the district court should be guided on the remand that we direct. Those concurring only in Judge Gee's opinion dissent from the failure of the court's mandate to reverse and remand more broadly. Separate opinions follow.

AFFIRMED IN PART and IN PART VACATED AND REMANDED.

ALVIN B. RUBIN, Circuit Judge, concurring in the Per Curiam, joined by BROWN, ANDERSON, RANDALL and THOMAS A. CLARK, Circuit Judges:

This case requires us to examine the circumstances under which, and the procedure by which, a court may enter a consent decree in a multiparty suit when some, but not all, of the litigants agree to the decree and parts, but not all, of the decree affect the rights of a nonconsenting party. We conclude that a decree disposing of some of the issues between some of the parties may be based on the consent of the parties who are affected by it but that, to the extent the decree affects other parties or other issues, its validity must be tested by the same standards that are applicable in any other adversary proceeding. Most parts of the decree entered by the trial court in this Title VII case pass the requisite muster, and we affirm them; however, because a part of the decree, entered without a trial, affects the rights of an objecting party, we limit its effect as to that party and remand for trial of the complaint insofar as a remedy is sought against that party.

The Attorney General filed a complaint against the City of Miami, several of its officials, and two organizations of police officers, the Fraternal Order of Police (FOP) and the Miami Police Benevolent Association (PBA), alleging that the defendants were engaged in policies and practices discriminating against black, Spanish-surnamed, and female individuals with respect to employment opportunities and conditions of employment with the City, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1976), the fourteenth amendment to the Constitution of the United States, and 42 U.S.C. §§ 1981 and 1983. The complaint sought temporary and permanent injunctive relief.

The FOP contends that the Attorney General lacked authority to institute the action, citing the 1972 amendments to Title VII, Equal Employment Opportunity Act of 1972, Pub.L.No.92-261, 86 Stat. 103 (codified in scattered sections of 42 U.S.C.), empowering the Equal Employment Opportunity Commission (EEOC) to file pattern or practice suits that the Attorney General previously had been empowered to file. 42 U.S.C. § 2000e-6(c).1 The FOP contends that, after 1974,2 only the EEOC could institute such actions against public employers; however, Congress has now explicitly authorized only the Attorney General to do so. Reorganization Plan No. 1 of 1978, § 5, reprinted in (1978) U.S.Code Cong. & Admin.News 9795, 9800 (prepared and transmitted pursuant to 5 U.S.C. §§ 901-912).

Applying the 1978 Reorganization Plan to pending litigation contradicts neither "statutory direction (n)or legislative history" and would not cause "manifest injustice." Bradley v. School Bd., 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476, 488 (1974). In accordance with decisions by both the Fourth and Ninth Circuits, therefore, we hold it applicable to this proceeding and affirm the Attorney General's authority to institute the action. United States v. Virginia, 620 F.2d 1018, 1022 (4th Cir.), cert. denied, 449 U.S. 1021, 101 S.Ct. 589, 66 L.Ed.2d 483 (1980); United States v. Fresno Unified School Dist., 592 F.2d 1088, 1093-94 (9th Cir.), cert. denied, 444 U.S. 832, 100 S.Ct. 62, 62 L.Ed.2d 41 (1979); United States v. North Carolina, 587 F.2d 625, 626 (4th Cir. 1978) (per curiam), cert. denied, 442 U.S. 909, 99 S.Ct. 2820, 61 L.Ed.2d 274 (1979).3

Negotiations between the Attorney General and the City apparently preceded the filing of the complaint, for the day after it was lodged the City filed an answer denying the charges of discrimination. A month later the FOP and the PBA filed an answer denying the allegations of the complaint and raising thirteen affirmative defenses to which, shortly thereafter, they added a fourteenth. The FOP, as collective bargaining agent, represents all ranks in the City police force up to and including captain. The record discloses neither the function of the PBA nor why it was joined as a defendant, for it is not a collective bargaining agent,4 nor why it should be enjoined by the court. Therefore, we hereafter refer only to the FOP as the party adverse to the relief now jointly sought by the United States and the City.

On February 18, 1976, the United States and the City filed a proposed consent decree signed by both. This decree was approved by the district court over objections to its entry by the FOP.

Nine days later, the FOP filed a motion to vacate the decree. After hearing argument on the motion, the court vacated the decree on April 2, stating that it was "improvidently signed" because some of the activities that it required of the City violated some of the provisions of the collective bargaining agreement between the City and the FOP. The district judge thought that all the parties might be able to reach an accord, for he directed that all of them attempt to arrive at another agreement. If there still remained unreconciled differences, then he would have "another hearing to see whether or not (the decree) does interfere" with the collective bargaining agreement. Discovery had been stayed, but, at the FOP's request, the protective order staying discovery was lifted on August 18. Thereafter the City and the Attorney General answered most of the FOP's interrogatories.5

On September 30, the contract between the City and the FOP expired. By December, negotiators for the City and the FOP had agreed to renew the contract, with some modifications, retroactive to October 1. This modified contract had been ratified by the Union, but it had not yet been signed by the City.

On November 17, the Attorney General and the City filed a motion to reinstate the consent decree, accompanied by an affidavit that the FOP and the City had been unable to resolve their differences; a stipulation containing statistics showing the composition both of the labor force in Miami and of the City's work force; a statement that the City Civil Service Board used unvalidated competitive examinations in making most of its hiring and promotion decisions; and statements that the City had received and was then receiving funds under the State and Local Fiscal Assistance Act of 1972 and the Omnibus Crime Control and Safe Streets Act of 1968.6

On December 13, the court held "a hearing on a motion for Re-entry (sic)." The judge started the hearing by asking the FOP to state its objections to the proposed decree. The FOP then stated a number of reasons why it contended that the proposed decree was invalid, all of them based on its asserted violation of the FOP's rights or the Federal Constitution. The FOP urged, for example, that the decree would discriminate against whites; that it instituted a quota system; that it violated the union contract because it permitted promotions without following the civil service testing procedure; that it was not signed by the City Manager and had not been approved by the City Council; that its provisions for deferment of pensions (now deleted, see p. 439 infra) violated the union contract; and that it improperly forbade the City Civil Service System to continue to use "unvalidated" tests. Although the FOP urged that the court conduct a "full-blown trial," it mentioned no evidence that it would introduce at such a trial; it proffered no evidence and did not attempt to controvert in any way the stipulation between the United States and the City.

Although the record is not explicit, apparently the FOP was asking that the court require the Attorney General to try his complaint against the City, and did not seek to introduce any evidence that would negate the Attorney General's claims. It argued instead the unconstitutionality of the proposed decree in toto, the decree's invalidity for legal defects, and the impropriety of enforcing the decree against the FOP without a trial between the City and the Attorney General.

To allay some of the concerns expressed by the court at the December hearing, the City and the Attorney General submitted modifications to the proposed decree. These modifications deleted, inter alia, the proposals relating to pensions. A hearing on the modified proposed decree was held on February 8, 1977. We assume that meanwhile the City and the FOP had executed the new collective bargaining agreement, although the record is silent on this subject.

The judge and all of the parties were aware of, and the record contains frequent reference to, a suit recently concluded in another division of the same court, Cohen v. City of Miami, No. 71-1887-Civ-CA (S.D.Fla., final judgment May 6, 1974). In Cohen, the City agreed, in settlement of a class action against it, to validate the entry and promotional examinations for its police department and to recruit and hire more members of minority groups for its police department; however, the tests had not yet been validated.

On March 29, the court entered the modified decree proposed by the City and the Attorney General and still opposed by the FOP. The court found that the decree "does not violate the contractual relationship between the City of Miami and the Fraternal Order of Police and the Miami Police Benevolent Association." It found further: "The consent reached is constitutionally valid. It should be recognized by the Court." Although the City's supplemental memorandum, filed with its application for reentry of the consent decree, had stated that the complaint and the consent order did not allege wrongdoing by or request relief for defendant police unions, the court order further stated:

Because the Consent Decree contains the following injunctive order (permanent in nature):

"1. The defendant City of Miami ... and all persons in active concert or participation with them ... are permanently enjoined and restrained from engaging in any act or practice which has the purpose or effect of unlawfully discriminating against any employee of, or any applicant for employment with, the City of Miami because of such individual's race, color, sex or national origin ..."

the Fraternal Order of Police and the Police Benevolent Association will not be dismissed as parties to the action.

The FOP appealed. A panel of this court affirmed the district court. 614 F.2d 1322 (5th Cir. 1980). We granted a petition to rehear the case en banc, 625 F.2d 1310 (5th Cir. 1980), thus vacating the panel opinion, 5th Cir. R. 17.

The parties to litigation may be compromise and settlement not only save the time, expense, and psychological toll but also avert the inevitable risk of litigation. United States v. Armour & Co., 402 U.S. 673, 681, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256, 262 (1971). If the parties agree to compose their differences by a settlement agreement, however, the only penalty for failure to abide by the agreement is another suit. Litigants, therefore, have sought to reinforce their compromise and to obtain its more ready enforceability by incorporating it into a proposed consent decree and seeking to have the court enter this decree.

A consent decree, although founded on the agreement of the parties, is a judgment. United States v. Kellum, 523 F.2d 1284, 1287 (5th Cir. 1975). It has the force of res judicata, protecting the parties from future litigation. It thus has greater finality than a compact.7 As a judgment, it may be enforced by judicial sanctions, including citation for contempt if it is violated.8

The entry of a consent decree necessarily implies that the litigants have assented "to all of its significant provisions." High v. Braniff Airways, Inc., 592 F.2d 1330, 1334 (5th Cir. 1979). In this respect a consent decree is akin to a contract, to be interpreted in the same manner. United States v. ITT Continental Bakery Co., 420 U.S. 223, 236-37 & n.10, 95 S.Ct. 926, 934 & n.10, 43 L.Ed.2d 148, 161 & n.10 (1975).9

Complete accord on all issues, however, is not indispensable to the entry of any order. Even in a two-party litigation the parties may agree on as much as they can, ask the court to incorporate that agreement into a consent decree, and call upon the court to decide the issues they cannot resolve. See Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1168-75 (5th Cir. 1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979); High v. Braniff Airways, Inc., 592 F.2d at 1334-35. Thus, there may be a decree "partially consensual and partially litigated." Id. at 1335. We made such an analysis in Pettway, in which we held that a judgment in a class action case was a hybrid, based in part on the parties' settlement agreement and in part on the court's own judgment. 576 F.2d at 1175.

Applying the same principle to multiparty litigation, two parties may resolve all of the issues that do not affect a third party, ask the court to include only this settlement in a consent decree, and submit to the court for adjudication the remaining issues, disputed between them and the third party. If the court then enters a decree, it is similarly hybrid. We must review each part of the decree by separate standards, both in determining appealability and in deciding its substantive merit.

Whether complete or partial, the agreement of the parties is not equivalent to a judicial decision on the merits. It is not the result of a judicial determination after the annealment of the adversary process and a judge's reflection about the ultimate merits of conflicting claims. It does not determine right and wrong in the initial dispute. Forged by the parties as a compromise between their views, it embodies primarily the results of negotiation rather than adjudication. United States v. City of Jackson, 519 F.2d at 1151-52.

Nonetheless, the parties who agree on a consent decree are not mere supplicants for court favor. The parties have a right to compromise their dispute on mutually agreeable terms, and these terms may include the incorporation of their settlement into a judicial decree. See Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 998, 67 L.Ed.2d 59, 66 (1981). In United States v. City of Alexandria, 614 F.2d 1358 (5th Cir. 1980), we reversed a trial court for refusing to enter a consent decree in a Title VII case, stating:

a consent decree proposed by a private defendant and government agency in an employment discrimination case carries with it a presumption of validity that is overcome only if the decree contains provisions which are unreasonable, illegal, unconstitutional, or against public policy.

Id. at 1362.

The court, however, must not merely sign on the line provided by the parties. Even though the decree is predicated on consent of the parties, the judge must not give it perfunctory approval. As Professors Moore and Currier state:

(T)he judgment is not an inter partes contract; the court is not properly a recorder of contracts, but is an organ of government constituted to make judicial decisions and when it has rendered a consent judgment it has made an adjudication.

1B Moore's Federal Practice P 0.409(5), at 1030 (2d ed. 1980).

When presented with a proposed consent decree, the court's duty is akin, but not identical to its responsibility in approving settlements of class actions,10 stockholders' derivative suits,11 and proposed compromises of claims in bankruptcy.12 In these situations, the requisite court approval is merely the ratification of a compromise. The court must ascertain only that the settlement is "fair, adequate and reasonable."13

Because the consent decree does not merely validate a compromise but, by virtue of its injunctive provisions, reaches into the future and has continuing effect, its terms require more careful scrutiny. Even when it affects only the parties, the court should, therefore, examine it carefully to ascertain not only that it is a fair settlement but also that it does not put the court's sanction on and power behind a decree that violates Constitution, statute, or jurisprudence. This requires a determination that the proposal represents a reasonable factual and legal determination based on the facts of record, whether established by evidence, affidavit, or stipulation. If the decree also affects third parties, the court must be satisfied that the effect on them is neither unreasonable nor proscribed.14

In assessing the propriety of giving judicial imprimatur to the consent decree, the court must also consider the nature of the litigation and the purposes to be served by the decree. If the suit seeks to enforce a statute, the decree must be consistent with the public objectives sought to be attained by Congress. Metropolitan Hous. Dev. Corp. v. Village of Arlington Heights, 616 F.2d at 1014. Voluntary compliance will frequently contribute significantly toward ultimate achievement of statutory goals. Patterson v. Newspaper & Mail Deliverers' Union, 514 F.2d 767, 771 (2d Cir. 1975), cert. denied, 427 U.S. 911, 96 S.Ct. 3198, 49 L.Ed.2d 1203 (1976). Defendants "minimize costly litigation and adverse publicity and avoid the collateral effects of adjudicated guilt." United States v. City of Jackson, 519 F.2d at 1152 n.9. Therefore, willing compliance will be more readily generated by consent decrees than would mandates imposed at the end of bitter and protracted litigation. Metropolitan Hous. Dev. Corp. v. Village of Arlington Heights, 616 F.2d at 1014.

Voluntary settlement of Title VII suits was deliberately adopted by Congress as a means of accomplishing its goal of eliminating employment discrimination. "Cooperation and voluntary compliance were selected as the preferred means of achieving this goal." Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147, 156 (1974); see Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977). Quoting Alexander, the Supreme Court recently noted that a court's refusal to approve a consent decree in a Title VII case is an appealable order because, in part, the refusal undermines one of the policies supporting Title VII by denying the parties the opportunity to compromise their claims and to obtain the prompt injunctive benefits of the settlement agreement they have negotiated. Carson v. American Brands, Inc., 450 U.S. at 84 & n.14, 101 S.Ct. at 998 & n.14, 67 L.Ed.2d at 66 & n.14.

A consent decree may properly include provisions requiring the defendant to take affirmative action rectifying the effects of past discrimination. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 301-02 & n.41, 98 S.Ct. 2733, 2754 & n.41, 57 L.Ed.2d 750, 779 & n.41 (1978) (Powell, J., announcing the judgment of the Court). Although this opinion reflects Justice Powell's views, the separate opinion of Justices Brennan, White, Marshall, and Blackmun indicates agreement with this portion of the opinion. In view of the tacit admission of the City in proposing the consent decree, the employment goals and other remedial actions required by it are in accordance with the policy of Title VII and do not deny others equal treatment.

Like other judicial functions, the decision to approve a consent decree requires careful consideration and the exercise of discretion. The district court's approval of a proposed settlement by consent decree should be reversed only if its approval is an abuse of the court's discretion. See Young v. Katz, 447 F.2d 431 (5th Cir. 1971).15

Our analysis of the record, set forth more fully below, leads ineluctably to the conclusion that the consent decree between the United States and the City was a hybrid decree: in what was essentially a three-party suit, only two parties consented to the decree. Insofar as the decree does not affect the nonconsenting party and its members, or contains provisions to which they do not object, the trial court properly exercised its discretion in approving it. However, parts of the decree do affect the third party who did not consent to it, and these parts cannot properly be included in a valid consent decree.

The decree in full is set forth as an appendix to the panel opinion. 614 F.2d at 1342-51. Reviewing its provisions and the FOP's objections to it, both as stated in the trial court and in its briefs to us, we find that few of its provisions affect the FOP as an organization or its members, and that most of these are so patently an application of Title VII, as the law of the land, that the FOP has not even suggested an opposition to them.

The first paragraph of the decree enjoins the City from engaging in any act or practice that unlawfully discriminates against any employee, applicant, or potential employee. The FOP does not object, nor indeed could it have valid objection, to a provision that orders the City to do nothing unlawful.

The second and third paragraphs of the decree relate to new employees. Paragraph 2 concerns recruitment. In addition to general affirmative action goals, it prescribes specific programs for recruiting personnel for the police and fire departments. Paragraph 3 deals with selection of new employees, including testing, education, background investigation, medical examination and physiological qualifications, criminal record, and polygraph examination. Except for testing, the provisions of this paragraph relate only to initial employment.

The FOP represents only members of the police force below major's rank. Neither its collective bargaining agreement nor the Miami Civil Service Ordinance16 gives it any voice in hiring either police officers or other municipal employees. The provisions of the decree that relate to hiring therefore do not affect the FOP or present employees of the police department. Moreover, in its several briefs to us, the FOP has never objected to the hiring goals.

Paragraph 2 does contain a sentence forbidding the City to use "any written examination for employment or promotion which has an adverse impact on blacks, Latins or women unless it can be shown to be predictive of successful job performance, or can otherwise be shown to be job related," except that the City may continue to use such tests "during the time they are being validated, in accordance with" EEOC Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. §§ 1607.1 to .18 (1980). The FOP insists upon adherence to present testing procedures for promotion and objects to the time required for the validation of examinations.17 We will consider these objections in discussing paragraph 7, which deals with promotions. However, except for the effect of testing on police department promotions, this paragraph of the decree does not affect the FOP.

Paragraph 4, paraphrasing § 703(a)(2) of Title VII, 42 U.S.C. § 2000e-2(a)(2), forbids the City to discriminate on the basis of race, sex, or national origin in the assignment of employees in any department except as permitted by EEOC Guidelines on Discrimination Because of Sex, 29 C.F.R. §§ 1604.1 to .11 (1980), EEOC Guidelines on Discrimination Because of National Origin, id. § 1606.1, and the Office of Revenue Sharing, Department of the Treasury regulation on employment discrimination, 31 id. § 51.53. These provisions affect the relationship of the City with all of its employees alike. They merely state settled federal statutory requirements and the FOP registers no objection to them.

Goals are fixed by paragraph 5, in which the decree recites: "In order to eliminate the effects of past discriminatory practices against blacks, Latins and women, the City shall adopt and seek to achieve as its long term goal the participation at all levels throughout its work force of blacks, Latins and women approximating their respective proportions in the City's labor force ...." (Emphasis supplied.) The City agrees that this statement constitutes a tacit admission of past discrimination. Hiring goals are then set in the remainder of this paragraph. As we have already pointed out, the FOP agreement is silent about hiring. Paragraph 5 also contains provisions concerning establishment of promotional goals. Insofar as these affect the FOP, we will discuss them in connection with paragraph 7.

Paragraph 6 defines the affected class; paragraph 9 concerns the records the City agrees to keep; paragraph 10 requires the City to report specified employment data; paragraph 11 requires the City to post the court order and to designate a City EEO officer; and paragraph 12 contains definitions. These paragraphs affect FOP employees only indirectly, if at all. They do not transgress any part of the FOP's collective bargaining agreement, and the FOP has neither objected to them nor alleged any impropriety in their inclusion in a court order.

Paragraph 8 requires the City to provide a fund for payment of backpay in an amount to be determined by negotiation between the Attorney General and the City. Persons entitled to backpay will be offered an amount to be determined by those negotiations. No person having a claim for backpay is precluded from separately asserting it. In the trial court the FOP complained, apparently pro bono, that this provision might enable the City to escape liability to persons who had been discriminated against. It did not allege that it represented any person whose rights would be affected. It did not repeat these objections in the briefs filed in this court.

The one part of the consent decree that the FOP contends both affects its members and violates its contract is a clause in paragraph 7, dealing with promotions, that provides for promotion of members of the affected class. This clause does alter prior practice and we will discuss it separately.

Save for its provisions concerning the selection of persons to be promoted, however, the decree for the most part does not affect FOP-represented persons, that is, it affects only how the City will hire all of its employees and how it will treat the 80% of its employees who work in other departments. In various indirect ways, neither objected to nor alleged to violate the FOP contract, the decree may affect police officers in the same general way it affects others. The FOP does not complain of the provisions, for example, concerning reporting requirements or the designation of an EEO officer.

Insofar as the decree affects only the employees of other departments, the FOP lacks standing to appeal its provisions, for reasons we shall more fully elaborate. In any event, those provisions of the decree that affect only the 80% of the City's employees who are not represented by the FOP and, in addition, those provisions that affect police officers but are not objected to by the FOP, are to be weighed as a consent decree in accordance with the standards we have set forth in Part IV, supra. We do not review the trial court's decision de novo, but as an appellate court, to determine whether the judgment of the trial judge should be set aside.

In assaying the weight to be given the trial judge's decision, we measure the facts in the record before him; the degree to which he demonstrated familiarity with the issues, the parties, and the applicable law; the reasonableness and fairness of his decision; and the constitutional and statutory arguments both for and against the validity of his decision. See id. The record demonstrates that the trial judge did not merely put pen to the parties' paper. He heard full argument three times. The United States and the City stipulated data that supported the inference of past discrimination, and they agreed to a statement in the text of the decree that the City had discriminated against blacks, Latins, and women. Cf. Alexander v. Bahou, 86 F.R.D. 194, 199 (N.D.N.Y.1980) (court presented with data but no admission of liability). The trial judge vacated the decree first proposed to and accepted by him, then later insisted upon its modification. He gave the FOP ample opportunity to muster its objections and considered its arguments fully. Under these circumstances, his approval of the decree, insofar as it affected City employees other than FOP members and, patently, insofar as it is not objected to by the FOP, must be affirmed.

Although no party challenges either our jurisdiction or the intermeshed question of standing to appeal the decree, we have, as we are obligated to, e. g., Alabama ex rel. Baxley v. Woody, 473 F.2d 10, 12-13 (5th Cir. 1973), considered these questions. We discuss them at this point rather than at the outset of our opinion, the usually logical place, because they can be more readily answered with full comprehension of the nature of the litigation and the disputed issues.

An order entering a consent decree containing an injunction is appealable by any party adversely affected. 28 U.S.C. § 1292(a)(1) provides jurisdiction over appeals from "(i)nterlocutory orders of the district courts of the United States ... granting, continuing, modifying, refusing or dissolving injunctions." Recently, in Carson v. American Brands, Inc., a unanimous Supreme Court determined that a consent decree enjoining an employer from discriminating against its black employees was an "injunction" for purposes of § 1292(a)(1). Here, as in Carson, the decree has the "practical effect" of an injunction, 450 U.S. at 83, 101 S.Ct. at 996, 67 L.Ed.2d at 65, as it enjoins future discrimination and mandates remedies for past discrimination. If, as the Court held, a district court's refusal to enter a decree was an appealable order, then entry of this decree, "granting (an) injunction," must also be appealable under § 1292(a)(1). Roberts v. St. Regis Paper Co., 653 F.2d 166, 169-170 (5th Cir. 1981).18

An appealable order may not, however, be challenged by the world at large or even by every party to the suit in which it is entered. To have standing, a party must be aggrieved by the judicial action from which it appeals. Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 333-34,