In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-2105

MICHAEL L. SHAKMAN and

PAUL M. LURIE, 

Plaintiffs-Appellees,

v.

CITY OF CHICAGO,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 69 C 2145—Wayne R. Andersen, Judge.

____________

ARGUED APRIL 14, 2005—DECIDED OCTOBER 24, 2005

____________

Before COFFEY, RIPPLE and KANNE, Circuit Judges.

RIPPLE, Circuit Judge. The City of Chicago (“City”) filed a

motion to vacate a consent decree entered in 1983 to settle

political patronage litigation originally instituted in 1969.

The district court denied the City’s motion to vacate, and

the City appealed. For the reasons set forth in the following

opinion, we reverse the judgment of the district court and

remand for further proceedings consistent with this opinion.
2 No. 04-2105

I

BACKGROUND

A. Facts

The basic facts underlying the present appeal have been

recounted in this court’s earlier decisions, see, e.g., Shakman

v. Democratic Org., 435 F.2d 267 (7th Cir. 1970) (“Shakman I”);

Shakman v. Dunne, 829 F.2d 1387 (7th Cir. 1987) (“Shakman

II”); O’Sullivan v. City of Chicago, 396 F.3d 843 (7th Cir. 2005);

we assume general familiarity with those cases and recount

here only those facts essential to an understanding of the

present appeal.

1. The Original Shakman Litigation

In 1969, Michael Shakman was an independent candidate

seeking election to the Illinois Constitutional Convention.

He and one of his supporters brought suit on behalf of

themselves, other candidates and voters against several

governmental entities and officials, including the City of

Chicago and its Mayor. The class alleged that the defendants maintained a patronage system under which government employment decisions—both hiring and retention—were based on the prospective (or current) employees’

support of Democratic candidates. According to Mr.

Shakman, this system violated the right of a candidate to

associate with supporters, the right of voters to a free

electoral process and the right of public employees to

associate with candidates from other parties.

The district court dismissed the complaint for lack of

standing; we reversed. We held that this “misuse of official

power over public employees . . . create[d] a substantial,

perhaps massive, political effort in favor of the ins and
No. 04-2105 3

against the outs.” Shakman I, 435 F.2d at 270. We concluded

that “these interests are entitled to constitutional protection

from injury of the nature alleged as well as from injury

resulting from inequality in election procedure.” Id. Following the remand, the City agreed to a consent judgment, and

such a decree was entered on May 5, 1972 (“1972 Consent

Decree”). See R.174, Ex.4. 

The 1972 Consent Decree prohibited the City from

considering political activity or affiliation when making

employment decisions concerning current employees. The

district court retained jurisdiction to clarify and to enforce

the provisions of the decree. The decree did not address

whether political affiliation and activity could be considered

in hiring new employees—a matter that continued to be

litigated by the parties. 

Litigation with respect to the hiring issue continued into

the next decade. In September 1979, the district court

granted the plaintiffs’ motion for partial summary judgment

on this claim. The district court stated that the patronage

hiring practices infringed upon the plaintiffs’ rights as

voters and candidates because those practices gave the

incumbent party an unfair advantage in elections. 

On April 4, 1983, the court entered an order enjoining the

defendants from conditioning hiring decisions on an

applicant’s political affiliation. The City subsequently

entered into a second consent judgment on June 20, 1983

(“1983 Consent Decree”), with respect to the hiring issue.

See R.158, Ex.A. The 1983 Consent Decree enjoined the City

from considering political affiliation with respect to hiring

decisions, with limited exceptions for policy-making

positions. Again, the court retained jurisdiction to enforce

the decree, and the decree explicitly provided that an

enforcement action could be initiated by any registered

voter. 
4 No. 04-2105

2. Shakman II Decision 

Unlike the City of Chicago, several Cook County officials

did not become parties to the 1983 Consent Decree. These

officials appealed the district court’s partial summary

judgment in favor of the plaintiffs; we reviewed that

decision in Shakman II, 829 F.2d 1387. The focus of our

decision in Shakman II was “the constitutionality of

politically-motivated hiring practices”; “other patronagebased employment practices” were not before us. Id. at 1393

(citations omitted). Turning to the merits of the plaintiffs’

political hiring claims, we noted that significant changes

had occurred since the plaintiffs had filed the original action

in 1969:

The case before us today is, from a factual viewpoint, a

very different case from the case set forth in the complaint. The consent decree with respect to politicallymotivated discharges has eliminated a significant

portion of the contentions that were originally presented in the appellees’ complaint and that were before

this court during the earlier appeal in 1970, seventeen

years ago. . . . More importantly, we are confronted with

a significantly different legal landscape than the one that

confronted the district court at the time the complaint

was originally filed . . . . During these intervening years,

the Supreme Court has engaged in a thorough examination of “justiciability,” the limitations imposed on

federal courts by the “case-and-controversy” provision

of article III.

Id. at 1392-93 (emphasis in original; citations omitted). This

intervening case law made clear that the central inquiry in

determining whether a plaintiff had constitutional standing

was whether that plaintiff had suffered “ ’personal injury

fairly traceable to the defendant’s allegedly unlawful
No. 04-2105 5

conduct and likely to be redressed by the requested

relief.’ ” Id. at 1394 (quoting Allen v. Wright, 468 U.S. 731, 751

(1984)). 

In applying this standard in Shakman II, we observed that,

although the plaintiffs had asserted several injuries, “the

heart of the plaintiffs’ case [wa]s their contention that the

hiring practices of the defendants violate[d] the speech and

associational rights of candidates and voters.” Id. at 1395.

We then turned to the question of whether the dilution of

voters’ political voice was “fairly traceable to the defendants’ activity.” Id. We determined that “the line of causation between the appellants’ activity and the appellees’

asserted injury [was] particularly attenuated”; we explained:

[T]he line of causation depends upon countless individual decisions. Moreover, those countless individual

decisions must depend upon . . . countless individual

assessments that those who are in power will stay in

power. . . . Any advantage obtained by the incumbent is

obtained only if potential workers make an independent

evaluation that the incumbent, not the opposition, will

win. The plaintiffs will be at a disadvantage if—and

only if—a significant number of individuals seeking

political job opportunities determines the “ins” will

remain “ins.”

Id. at 1397. However, “[t]racing the appellees’ asserted

injury to the appellants’ activity must depend on more than

the attempt of a federal court to take the political temperature of the body politic.” Id. at 1398 (citation omitted). In

sum, the relationship between the defendants’ activities and

the plaintiffs’ injuries were too speculative and tenuous to

support Article III standing. Consequently, we held that the
6 No. 04-2105

plaintiffs did not have standing to pursue their hiring action

against the remaining defendants.

3. Motion to Vacate

As we have noted already, the City was not a party to

Shakman II and therefore remained bound by the terms of

the 1983 Consent Decree. Since 1983, the City and the

members of the plaintiff class have continued to litigate the

scope and requirements of the 1983 Consent Decree. 

In 2002, the City filed a motion to vacate the 1983 Consent

Decree under Federal Rule of Civil Procedure 60(b)(4) and

(5). The City submitted that Shakman II had held that the

plaintiffs did not have standing to pursue their patronage

hiring claims. Therefore, the City continued, the district

court did not have jurisdiction to enter the 1983 Consent

Decree, and the decree should be vacated pursuant to Rule

60(b)(4). See Fed. R. Civ. P. 60(b)(4) (allowing relief from

final judgment when “the judgment is void”). Alternatively,

the City submitted that Shakman II—and other cases that

narrowed the field of plaintiffs who meet constitutional

standing requirements—represented a change in law that

warranted relief under Rule 60(b)(5). See Fed. R. Civ. P.

60(b)(5) (allowing a court to provide relief from judgment if

“a prior judgment upon which it is based has been reversed

or otherwise vacated, or it is no longer equitable that the

judgment should have prospective application”).

 In response, the plaintiffs maintained that the motion to

vacate, which was filed nearly fifteen years after Shakman II,

was untimely; that the City’s decision to adopt the consent

decree prevented it from attacking the validity of that

decree; and that this court’s ruling in Shakman II did not

undermine the validity of the 1983 Consent Decree.
No. 04-2105 7

The district court agreed with the plaintiffs. Relying on

this court’s decisions in United States v. Deutsch, 981 F.2d 299

(7th Cir. 1992), and Kagan v. Caterpillar Tractor Co., 795 F.2d

601 (7th Cir. 1986), the district court first held that the Rule

60(b) motion was not timely. The district court also determined that the City could not now attack the jurisdictional

basis of the 1983 decree because “a party is not entitled to

relief under Rule 60(b) after making a deliberate decision

not to appeal a ruling of a lower court.” R.235 at 5. Finally,

although the district court agreed with the City that the

jurisdictional basis for the plaintiffs’ hiring claims may have

been called into doubt by Shakman II, the district court

believed that the 1983 Consent Decree had accomplished

more than merely settling the plaintiffs’ hiring claim: The

1983 Consent Judgment also “explicitly included the

obligations under the 1972 Consent Judgement.” Id. at 6.

The district court held that

[t]he net effect [of the 1972 and 1983 decrees] was the

creation of a comprehensive plan designed to minimize

partisan political influence on employment decisions

with respect to employees covered by the two Consent

Judgments. There is simply no doubt that there is a

relationship between the threatened rights of the

plaintiffs and the overall employment practices of the

City. . . . [The Seventh Circuit] recognized, as we do

today, that the use of partisan political practices to hire,

promote, assign and discharge workers, when taken in

combination, potentially create a cause-and-effect

relationship sufficient to invest standing in the plaintiffs. 

Id. at 7-8. According to the district court, the “comprehensive nature of the 1983 Consent Judgment, particularly as it

incorporates the terms of the 1972 Consent Judgment,
8 No. 04-2105

clearly distinguishe[d] the City’s legal position from that of

the appellants in Shakman II.” Id. at 8.

The district court did acknowledge “the frustration that

the City must feel because of the long-standing restraint of

the ongoing Consent Judgment.” Id. It advised the City that

“[i]f the objective standards of performance can be established, perhaps a tentative expiration date can be set. In the

meantime, the Consent Judgment certainly can be modified

to reduce bureaucratic and legal expense required to comply

with it.” Id.

The City timely appealed.

II

ANALYSIS

The parties’ arguments on appeal mirror those presented

to the district court. The City first argues that the district

court could not enforce the 1983 decree because the plaintiffs lacked standing to challenge the municipal hiring

practices at issue. It again submits that, as a result of this

lack of standing, the district court erred in denying the

City’s motion to vacate pursuant to Rule 60(b)(4). Additionally, the City renews its argument that the district court

erred in not granting relief under Rule 60(b)(5) because this

court’s decision in Shakman II constituted a change in the

law on which the 1983 Consent Decree is based. For their

part, the plaintiffs reiterate the arguments on which they

prevailed in the district court.

Shortly after briefing in this case was completed in this

court, we decided O’Sullivan v. City of Chicago, 396 F.3d 843.

O’Sullivan was an action to enforce the 1983 Consent Decree

(and the plan for compliance adopted thereunder) brought
No. 04-2105 9

by lieutenants in the Chicago Police Department, who

claimed that the City’s procedure for promotions violated

the decree. See id. at 851. Although O’Sullivan concerned an

enforcement action as opposed to a motion to vacate, the

parties in O’Sullivan raised many of the same arguments

that have been made with respect to the City’s motion to

vacate. Both of the parties to this action submitted

O’Sullivan as supplemental authority and discussed that

decision extensively at oral argument. 

Because O’Sullivan addresses many of the arguments

raised by the parties, we first shall discuss that decision. We

then evaluate the district court’s disposition of the motion

to vacate in light of O’Sullivan. 

A. The O’Sullivan Decision

In 2001, lieutenants in the Chicago Police Department

brought an action to enforce the 1983 Consent Decree.

Specifically, they claimed that the City’s promotional

practices violated the 1983 Consent Decree. See id. at 851.

The City moved to dismiss the action on the ground that the

plaintiffs had not alleged any injury to their rights as voters

and, therefore, the plaintiffs lacked constitutional standing.

The district court agreed. It observed that the decree granted

standing to voters to enforce its terms, but plaintiffs had not

alleged that the promotion practices at issue adversely

affected their rights as voters or candidates. The district

court therefore concluded that the plaintiffs had not established the “injury in fact” required for constitutional

standing. 

We reversed the district court’s judgment. We first noted

that the City’s argument, and the district court’s acceptance

of that argument, ignored the fact that the issue of standing

had been litigated fully and resolved against the City:
10 No. 04-2105

In the Shakman litigation that led to the 1983 Consent

Decree, the City maintained that the voters lacked

constitutional standing to challenge hiring and promotional practices, but the district court determined that,

adhering to our decision in Shakman I, the plaintiffs had

standing. The City took no appeal from this ruling.

Under such circumstances, when a federal court “has

decided the question of the jurisdiction over the parties

as a contested issue, the court in which the plea of res

judicata is made has not the power to inquire again into

that jurisdictional fact.” Thus, as this court has stated,

only “an egregious want of jurisdiction” will justify

reconsideration of the standing issue.

O’Sullivan, 396 F.3d at 866 (quoting Stoll v. Gottlieb, 305 U.S.

165, 172 (1938), and In re Factor VIII, 159 F.3d 1016, 1018 (7th

Cir. 1998), respectively; citations omitted).

However, we also noted that our approach to the plaintiffs’ enforcement action had to be informed by recent case

law that addressed the special concerns raised by institutional litigation. Specifically, in Rufo v. Inmates of the Suffolk

County Jail, 502 U.S. 367 (1992), the Supreme Court explained that its prior statements concerning finality of

judgments should not “ ’take on a talismanic quality,

warding off virtually all efforts to modify consent decrees.’ ” O’Sullivan, 396 F.3d at 860 (quoting Rufo, 502 U.S.

at 380). Furthermore, Rufo had noted that 

“[t]he upsurge in institutional reform litigation . . . has

made the ability of a district court to modify a decree in

response to changed circumstances all the more important. Because such decrees often remain in place for

extended periods of time, the likelihood of significant

changes occurring during the life of the decree is

increased.” 
No. 04-2105 11

1 Federal Rule of Civil Procedure 60(b) provides in relevant part:

On motion and upon such terms as are just, the court may

relieve a party or a party’s legal representative from a final

judgment, order, or proceeding for the following reasons: . . .

(5) the judgment has been satisfied, released, or discharged, or

a prior judgment upon which it is based has been reversed or

otherwise vacated, or it is no longer equitable that the judgment should have prospective application . . . .

Id. at 861 (quoting Rufo, 502 U.S. at 380; citations omitted).

Thus, after Rufo, “a party seeking modification of a consent

decree does not have to prove a grievous wrong . . . ; the

party only ‘bears the burden of establishing that a significant change in circumstances warrants revision of the

decree.’ ” Id. (quoting Rufo, 502 U.S. at 383; other citations

and quotation marks omitted). 

Reading these two lines of cases in tandem, we observed

that, although our case law—and that of the Supreme

Court—clearly established that parties could not ignore

consent decrees that they believed had become outdated in

some manner, Rule 60(b)1

 provided an avenue for local

governmental authorities to seek relief from consent decrees

that, as a result of changed factual or legal circumstances,

may have become unjust, illegal or unenforceable. We

explained that

[t]he problem with the City’s present position is that it

ignores the procedural posture of this case. The present

plaintiffs brought an action to enforce the 1983 Consent

Decree, and the district court had the power to enforce

that decree: “ ’[F]ederal courts are not reduced to

approving consent decrees and hoping for compliance.

Once entered, a consent decree may be enforced.’ ” Frew

[v. Hawkins, 540 U.S. 431, 440 (2004)] (quoting Hutto v.
12 No. 04-2105

Finney, 437 U.S. 678, 690-91 (1978)). A party may not

simply ignore the decree because it believes that factual

or legal changes since the decree’s entry renders continued enforcement illegal or inequitable. Rather, Rule

60(b)provides an avenue to seek relief from some or all

of the requirements of the original decree. 

O’Sullivan, 396 F.3d 867-68 (emphasis in original; parallel

citations omitted).

Under the procedural circumstances presented to us in

O’Sullivan, therefore, we concluded that the district court’s

judgment had to be reversed. See id. However, we advised

that

[o]n remand, assuming the City wishes to pursue the

issue, the focus of the district court shall be not on the

law of standing as a jurisdictional concept but on the

equitable standards embodied in Rule 60(b)(5). The

district court should consider critically whether changes

in the legal landscape since 1983 require modification or

vacatur of that decree pursuant to Rule 60(b). Specifically, the cases outlined above reveal two important

developments that should guide the district court’s

analysis. First, Rufo and circuit court decisions in its

wake emphasize the need for district courts to take a

flexible approach to proposed modifications of consent

decrees that bind public entities: “[T]he public interest

and ‘[c]onsiderations based on the allocation of powers

within our federal system’ require that the district court

defer to local government administrators who have the

‘primary responsibility for elucidating, assessing, and

solving’ the problems of institutional reform, to resolve

the intricacies of implementing a decree modification.”

Rufo, 502 U.S. at 392 . . . . In short, concerns of federalism should factor strongly into the court’s analysis.
No. 04-2105 13

Second, the court must consider the significant

changes in the law of voter standing since the entry of

the 1983 Consent Decree. As Shakman II makes clear, we

have serious concerns whether the plaintiffs as voters

bring to the litigation the sort of concrete adverseness to

fulfill the mandate of Lujan. The court should consider

whether the class of voters has the “incentive to vigorously litigate and present the matter [of political patronage] to the court in the manner best suited for judicial

resolution.” Erwin Chemerinsky, Federal Jurisdiction §

2.3.2 (2003). Even given the vitality of Swift and its

progeny, a decree fashioned in litigation in which one of

the litigants did not have a sufficient concrete stake in

the outcome might contain provisions that are not

worthy of continued enforcement by a federal court. If

the City “establishes reason to modify the decree, the

court should make the necessary changes; where it has

not done so, however, the decree shall be enforced

according to its terms.” Frew, [540 U.S. at 442].

O’Sullivan, 396 F.3d at 868 (citations omitted).

With these standards in mind, we turn to the decision of

the district court denying the City’s motion to vacate the

1983 Consent Decree.

B. The District Court’s Determination

Our review of a district court’s ruling on a motion to

vacate is a deferential one: We will disturb the district

court’s decision only if the district court committed an abuse

of discretion. See Browder v. Dir., Dep’t of Corr. of Illinois, 434

U.S. 257, 263 n.7 (1978). However, we note that “[a] court

has abused its discretion when it commits a clear error of

fact or an error of law.” Incredible Techs., Inc. v. Virtual Techs.,
14 No. 04-2105

2 Federal Rule of Civil Procedure 60(b) further provides that

motions made pursuant to subsection (b)(1), (b)(2) or (b)(3) may

not be made “more than one year after the judgment.” However,

the City does not seek relief under any of these subsections;

therefore, the one-year limitations period is not at issue.

3 See also McCorvey v. Hill, 385 F.3d 846, 849 n.4 (5th Cir. 2004);

Fed. Land Bank of St. Louis v. Cupples Bros., 889 F.2d 764, 767 (8th

Cir. 1989).

4 This appeal does not concern the validity or the ongoing

application of the 1972 Consent Decree.

Inc., 400 F.3d 1007, 1011 (7th Cir. 2005) (internal quotation

marks and citations omitted).

1.

The district court’s first ground for rejecting the City’s

motion to vacate was that the motion was untimely. In

addition to enumerating the grounds on which a party may

be granted relief from a final judgment, Rule 60(b) also

provides that a motion made thereunder “shall be made

within a reasonable time.” Fed. R. Civ. P. 60(b).2

 “[W]hat

constitutes ‘reasonable time’ for a filing under Rule 60(b)

depends on the facts of each case.” Ingram v. Merrill Lynch,

Pierce, Fenner & Smith, Inc., 371 F.3d 950, 952 (7th Cir. 2004).3

A very important fact in this case is that the 1983 Consent

Decree provides for the ongoing involvement of a federal

district court in the hiring decisions of the City of Chicago.4

The decisions of the Supreme Court and of this court have

noted the need to avoid, when possible, interference in the

decision-making process of local governmental leaders by

extending, unnecessarily, the life of a consent decree whose

objectives have been achieved or have become unjust, illegal
No. 04-2105 15

5 In Evans v. City of Chicago, 10 F.3d 474 (7th Cir. 1993), we also

discussed the special considerations presented by a Rule 60(b)

motion brought to vacate or modify a consent decree entered

with respect to institutional reform litigation:

To the objection that our approach interferes with the

settlement of litigation, we have two replies. First, settlement

is not an end in itself. It is a means of resolving disputes

harmoniously. Many things are more important: preserving

democratic governance, separating the judicial and political

(continued...)

or unattainable. See Frew, 540 U.S. at 442; Rufo, 502 U.S. at

392 n.14; O’Sullivan, 396 F.3d at 868; Evans v. City of Chicago,

10 F.3d 474, 482 (7th Cir. 1993). The Supreme Court explained in Frew:

The federal court must exercise its equitable powers to

ensure that when the objects of the decree have been

attained, responsibility for discharging the State’s

obligations is returned promptly to the State and its

officials. As public servants, the officials of the State

must be presumed to have a high degree of competence

in deciding how best to discharge their governmental

responsibilities. A State, in the ordinary course, depends

upon successor officials, both appointed and elected, to

bring new insights and solutions to problems of allocating revenues and resources. The basic obligations of

federal law may remain the same, but the precise

manner of their discharge may not. If the State establishes reason to modify the decree, the court should

make the necessary changes; where it has not done so,

however, the decree should be enforced according to its

terms.

Frew, 540 U.S. at 442.5
16 No. 04-2105

5 (...continued)

spheres, respecting state autonomy in the absence of a federal

rule. These interests may elude a hectored district judge, eager

to reach the next case in the queue, but to the political society

whose long-term good the judge serves they are vital. Settlements purchased at the cost of putting the court in control of

state and local budgets come at too high a cost. Second, the

premise is incorrect. Attempts to enforce this consent decree

have not produced the peace that settlement brings. There have

been 16 years of noisome litigation. Politics is unruly and often

unpleasant; judicial regulation of political affairs does not end

the conflict but only shifts the venue.

Id. at 482 (internal citations omitted).

In the present case, the district court did not consider the

public nature of the litigation in reaching its conclusion that

the City’s motion was untimely. Indeed, the only cases cited

by the district court in support of its timeliness determination are cases involving judgments against individuals. See

United States v. Deutch, 981 F.2d 299, 302 (1992) (holding

untimely a petitioner’s motion to return seized property);

Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 710 (7th Cir.

1986) (addressing 60(b) motion in employment discrimination case). 

The district court’s determination that the City’s motion

was untimely rested on the fact that the “City certainly

knew about Shakman II as soon as the opinion was issued,”

R.235 at 4, and yet failed to act on that knowledge. However, even with respect to purely private litigation, the

litigants’ knowledge of the grounds for relief is only one

factor for the district court to weigh. Other factors include

“ ’the interest in finality, the reason for delay, the practical

ability of the litigant to learn earlier of the grounds relied

upon, and [the consideration of] prejudice [if any] to other
No. 04-2105 17

parties.’ ” Kagan, 795 F.2d at 610 (quoting Ashford v. Steuart,

657 F.2d 1053, 1055 (9th Cir. 1981) (alteration in original)).

In institutional reform litigation, unlike private disputes,

there are several “other parties” whose interests should be

considered. The Supreme Court, in discussing Rule 60(b),

has observed that “the public interest is a particularly

significant reason for applying a flexible modification

standard in institutional reform litigation because such

decrees reach beyond the parties involved directly in the

suit and impact on the public’s right to the sound and

efficient operation of its institutions.” Rufo, 502 U.S. at 381;

see also O’Sullivan, 396 F.3d at 868.

In short, any consideration of a “reasonable time” for

filing a Rule 60(b) motion with respect to the 1983 Consent

Decree must take into account the nature of that litigation as

well as the resulting prejudice, if any, to the present elected

officials and the public they represent. The district court did

not consider these factors, and this failure constituted an

abuse of discretion.

2.

The district court also held that the City’s agreement to

the 1983 Consent Decree prevented the City from now

attacking that judgment. Specifically, the district court

stated that “[t]he City’s 1983 request that this Court enter

the Consent Judgment, coupled with the dismissal of its

appeal, prevents the City from subsequently attacking the

judgment.” R.235 at 5. The district court relied upon

Ackerman v. United States, 340 U.S. 193 (1950), and Local 322,

Allied Industrial Workers v. Johnson Controls, Inc., 969 F.2d 290

(7th Cir. 1992), for the proposition that “a party is not

entitled to relief under Rule 60(b) after making a deliberate

decision not to appeal a ruling of a lower court.” R.235 at 6.
18 No. 04-2105

We do not dispute this statement as a general proposition.

However, we have noted that this rule is “not inflexible,”

Allied Indus. Workers, 969 F.2d at 292; cf. Ackerman, 340 U.S.

at 198-99 (discussing circumstances that might justify relief

from the judgment), and the need for flexibility is particularly important with respect to institutional reform litigation. As explained by the Court in Rufo:

The upsurge in institutional reform litigation since

Brown v. Board of Education, 347 U.S. 483 (1954), has

made the ability of a district court to modify a decree in

response to changed circumstances all the more important. Because such decrees often remain in place for

extended periods of time, the likelihood of significant

changes occurring during the life of the decree is

increased.

Rufo, 502 U.S. at 380. We reiterated in O’Sullivan this “need

for district courts to take a flexible approach to proposed

modification of consent decrees that bind public entities.”

396 F.3d at 868.

Institutional reform litigation, and consent decrees

attendant to that litigation, involve considerations of public

interest and federalism that are not present in the run-ofthe-mill civil case. As both the Supreme Court and this court

have made clear, the district court’s recognition of the

uniqueness of these cases must inform its decision whether

to grant or deny a motion brought pursuant to Rule 60(b).

Indeed, in our instructions to the district court on remand in

O’Sullivan, we specifically mentioned this need for flexibility as one of the principles that “should guide the district
No. 04-2105 19

6 In O’Sullivan v. City of Chicago, 396 F.3d 843, 868 (7th Cir. 2005),

we noted that, on remand, “the significant changes in the law of

voter standing since entry of the 1983 Consent Decree” also

should inform the district court’s consideration of any motion to

vacate brought by the City.

7 In its brief, which, as noted above, was filed prior to our

decision in O’Sullivan, the City also argues that the district court

erred in denying relief pursuant to Rule 60(b)(4). Specifically, the

City reiterates the argument made to the district court that,

because the plaintiffs lacked constitutional standing to bring this

cause of action, the 1983 Consent Decree was void ab initio. We

rejected this argument in O’Sullivan, 396 F.3d at 866-67, and

further discussion is not warranted here.

court’s analysis.” Id.6 Here, the district court’s failure to

adopt the “flexible” approach outlined above was an abuse

of discretion.

3.

Lastly, the district court considered, and rejected, the

City’s substantive argument—that the court lacked jurisdiction to enter the 1983 Consent Decree initially and also

lacked jurisdiction to continue to enforce the decree.7

 The

district court acknowledged that some “language from the

Shakman II opinion indeed supports the City’s contention

that this Court should now vacate the 1983 Consent Judgment.” R.235 at 6. However, the court determined that 

[u]nlike the subject matter on appeal in Shakman II, the

1983 Consent Judgment covers far more than hiring

practices. The 1983 Consent Judgment explicitly included the obligations under the 1972 Consent Judgment which prohibited political firing and also prohib-
20 No. 04-2105

8 The City acknowledged that, if the district court were to grant

(continued...)

ited “conditioning . . . any term or aspect of governmental employment, with respect to one who is at the time

already a governmental employee, upon or because of

any political reason or factor.”

Id. The court thus concluded that “[t]he comprehensive

nature of the 1983 Consent Judgment, particularly as it

incorporates the terms of the 1972 Consent Judgment,

clearly distinguishes the City’s legal position from that of

the appellants in Shakman II.” Id. at 7.

In essence, the court acknowledged that our decision in

Shakman II severely undermined the concept of voter

standing to challenge municipal hiring practices. However,

because the 1983 Consent Decree did not only end litigation

with respect to the City’s hiring practices, but also restated

the terms of the 1972 Consent Decree (related to the City’s

responsibilities to current employees), the district court

believed that the 1983 Consent Decree should not be

disturbed. 

The district court’s opinion implies that vacating the 1983

Consent Decree will somehow undermine the 1972 Consent

Decree. However, there is no factual or legal basis for this

assumption. The City’s motion to vacate was entitled

“Defendant City of Chicago’s Motion to Vacate the June 20,

1983 Hiring Consent Decree,” and sought “to vacate the

consent decree entered on June 20, 1983 by Judge Bua.”

R.157 at 1. Furthermore, in its brief in support of the motion,

the City stated that “it must be clear that the City does not

seek to vacate the 1972 decree which protects employees

once they have been hired.” R.158 at 3.8

 The City reiterates
No. 04-2105 21

8 (...continued)

its motion, paragraph H(1)(b) of the 1972 Consent Decree

(providing for the district court’s continued jurisdiction to enable

the parties to litigate the question of whether “political sponsorship or other political considerations [could] be taken into

account in hiring employees”) would have to be vacated. The

City further stated that “[t]he paragraphs of the 1972 decree that

protect persons once they are hired, however, would not be

modified as a result of this motion.” R.158 at 3 n.2.

9 The 1972 Consent Decree enjoined the City from “conditioning,

basing or knowingly prejudicing or affecting any term or aspect

of governmental employment, with respect to one who is at the

time already a governmental employee, upon or because of any

political reason or factor.” R.174, Ex.4 at 3.

this position in its brief before this court, see Appellant’s Br.

at 27 n.6 (“[W]e have not moved to vacate the 1972 decree.”), a position that is not contested by the appellees.

Thus, the protections contained in the 1972 Consent Decree,9

which were crucial to the district court’s determination not

to vacate the 1983 Consent Decree, will remain in full force

regardless of the district court’s action on the 1983 Consent

Decree. 

Because the continued validity of the 1972 Consent Decree

was not before the district court and because the 1972

Consent Decree will not be affected by the district court’s

determination with respect to the 1983 Consent Decree, we

must conclude that the district court abused its discretion in

using the 1972 Consent Decree as a basis for denying the

City’s motion.

4.
22 No. 04-2105

In sum, we do not believe that the district court’s denial of

the City’s Rule 60(b) motion can be reconciled with this

court’s decision in O’Sullivan or the decisions of the Supreme Court in Rufo and Frew. Those authorities make clear

that, when considering a Rule 60(b) motion with respect to

public litigation, the nature of that litigation must factor into

the district court’s decision-making process; the public

interest and “concerns of federalism” should guide the

court’s analysis. O’Sullivan, 396 F.3d at 868.

Furthermore, as we advised in O’Sullivan, we believe that

the district court’s Rule 60(b) analysis must account for “the

significant changes in the law of voter standing since the

entry of the 1983 Consent Decree,” id., a factor not squarely

confronted by the district court’s decision. “[A] decree

fashioned in litigation in which one of the litigants did not

have sufficient concrete stake in the outcome might contain

provisions that are not worthy of continued enforcement by

a federal court.” Id. On remand, the district court should be

guided by the current law of standing to determine whether

the class of voters has the necessary interest in this litigation

“ ’to vigorously litigate and present the matter of [political

patronage] to the court in the manner best suited for judicial

resolution,’ ” or whether that task is best left to individuals

directly impacted by hiring decisions made by the City. Id.

(quoting Erwin Chemerinsky, Federal Jurisdiction § 2.3.2

(2003)) (alteration in original).

Conclusion

For the reasons set forth in the above opinion, the judg-
No. 04-2105 23

ment of the district court denying the City’s motion to

vacate is reversed. The case is remanded for further proceedings consistent with this opinion. The City may recover

its costs in this court.

REVERSED and REMANDED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-24-05