Petition — Alioto v. Western Addition Community Organization

a

ne ee

Subject Index

Page

nnd be ieee eck eaken dh ewebedaeau ehee & 2

IS ic Wile as sie eed te ee ial ceu eee wak eeeekes 2

ee kaa de cha naneneeieeeeiaues 2

Constitutional provision involved ........0.....000eeeeeee 3

er rr i oo le eh en sees en ener ebeb eases 3

Pee. Gr MI GED WINER occ cc cece cccceccccecscsess 7

1. The decision below is in direct conflict with this

court’s decisions on mootness ............0.0e0ee eee 7

2. The existence of 10 minority eligibles under waiver

I I bk cen 064:666-0800 8 shee neenanens 9

3. There is a reasonable expectation that the racial quota

Re Oe I as rs boone b53 65SEC ober ae 11

4. This case presents an ongoing controversy .......... 14

5. The issues presented by the appeal are important 16

NS eee ee hua tab era eneek eaubesieceseeeut 17

Table of Authorities Cited

Cases Pages

Albemarble Paper Co. v. Moody, —.. U.S. —.., Dockets Nos.

74-389, 74-428, decided June 25, 1975 ................. 12

Bridgeport Guardians, Ine. vy. Bridgeport Civ. Serv. Com.,

ee ee eR 6 Vat ded eheeeeddaceeuekees 12

Carroll v. Commissioners of Princess Anne, 393 U.S. 175

RT he Oe ee ee ee a eee ses 9

Castro v. Beecher, 334 F.Supp. 930 (1971), affd. in rele-

vant part 459 F.2d 724 (ist Cir. 1972) ............... 12

Chance vy. Bd. of Examiners, 330 F.Supp. 203 (1971),

ee, Se ee ee Cle Ge, TOO) occ cncccvencecesss 12

Commonwealth of Pennsylvania v. Glickm 370 F.Supp.

DR rer ee Rn 12,13

Commonwealth of Pennsylvania vy. O'Neill, 348 F.Supp.

1084 (1972), affd. 473 F.2d 1029 (3rd Cir. 1973) ....... 12

DeFunis v. Odegaard, 416 U.S. 312 (1974) .............. 11, 16

pee vw. Deeeeem, SEP UE. ETD CRBTS) ccc cc cccsecccccccces 9

Dunn v. Blumstein, 405 U.S. 330 (1972) ................ 9

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ......... 12

Harper v. Mayor and City Council of Baltimore, 359 F.

ee eee er me 12

Moore v. Ogilvie, 394 U.S. 814 (1969) ..................

9

Motor Coach Employees vy. Missouri, 374 U.S. 74 (1963) .. s

Officers for Justice v. Civil Service Com. of San Francisco.

rn Ce Oe av vcaebhecee sb eaenbaentnes 12

Mae wv. Walle, 400 UE BER (ERTS) on cccccccccccsevecces i)

Rosario v. Rockefeller, 410 U.S. 752 (1973) ............. 9

Smith v. City of East Cleveland, 363 F.Supp. 1131 (1973) 13

Sosna v. Iowa. ...... U.S. ......, 95 S.Ct. 553 (1975) ........ 9

Southern Pacific Terminal Co. v. TCC, 219 U.S, 498

CR re See eee eke ee Ale 8, 14, 15

Steffel v. Thompson, 415 U.S. 452 (1974) ............... 9

Storer v. Brown, 415 U.S. 724 (1974) ................::. 4)

Super Tire Engineering Co. v. MeCorkle, 416 U.S. 115

SN, Boe DR ees ae cee een Cae ke Cate ges Ridin se 4)

ete ee ee

TABLE oF AUTHORITIES CITED iii

a . Pages

United States v. W. T. Grant Co., 345 U.S. 629 (1953) ... 10

Western Addition Community Organization v. Alioto, 360

I Ee I i oe ee ens 12,13

Charter.

City of San Francisco Charter:

rer gles EO ae ea Re ee 16

BY Pag a8 a eR ak ARO ha ea a ee RS EN 16

Constitutions

United States Constitution:

en ee 3

tae URS SSIES NREL Ropes rae a 9,11

SD Ms IS OD ooo Sido ok cite coven cccuccecc., 3

Statutes

El Se aE a a 2

42 ULS.C.:

1 ROL A erat sakes DY fee Ne AC ae 3

ar ig et ar NE a gan 3

Equal Employment Opportunity Commission (29 C.F.R.

ase re ee ier fs Sh 4,8, 12

a

eS een ee

Iu the Supreme Court

OF THE

United States

OcToBER TERM, 1975

No.

™ x >

FRANK N. ALIoTO, et al.,

Petitioners,

vs,

,

WESTERN ApDbITION COMMUNITY ORGAN- |

IZATION, et al., |

Respondents. |

PETITION FOR WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

The petitioners, Frank N. Alioto, Morris Bern-

stein and Rudy Tham, as members of the Fire Com-

mission of the City and County of San Francisco;

and William Kirkpatrick, John Molinari and Yori

Wada, as members of the Civil Service Commission

of the City and County of San Francisco, respect-

fully pray that a writ of certiorari issue to review

the judgment and opinion of the United States Court

of Appeals for the Ninth Circuit entered in this pro-

7

ceeding on March 27, 1975.

2

OPINIONS BELOW

The opinion of the Court of Appeals for the Ninth

Circuit, not yet reported, is reproduced in Appendix

A to this petition.

The order of the Court of Appeals denying peti-

tioners’ petition for rehearing en banc is unreported

and is reproduced in Appendix B to this petition.

The opinion of the District Court entered on No-

vember 19, 1973, which was appealed to the Ninth

Circuit Court of Appeals, is reported at 369 F.Supp.

77 (1973). It is reproduced in Appendix C to this

petition.

The supplemental order of the District Court en-

tered on September 23, 1974, is unreported. It is re-

produced in Appendix D to this petition.

JURISDICTION

The judgment of the Court of Appeals for the Ninth

Cireuit was entered on March 27, 1975. A timely peti-

tion for rehearing en bane was denied on May 30, 1975,

and this petition for certiorari was filed within 90 days

of that date. The jurisdiction of this Court rests on 28

U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether 10 minority eligibles on the civil ser-

vice list for H2 Fireman who have temporarily waived

appointment but who may withdraw their waiver at

any time and request appointment pursuant to the

me ee

3

District Court’s racial quota order of November 19,

1973, presents a continuing controversy on the consti-

tutionality of that order.

2. Whether the District Court’s continuing juris-

diction to order further racial quotas makes the issues

presented by the appeal “capable of repetition, yet

evading review.”

3. Whether the decision below is in direct conflict

with previous decisions of this Court on mootness.

CONSTITUTIONAL PROVISION INVOLVED

1. Constitution of the United States, Article ITI:

“Section 2. The Judicial Power shall extend

to all Cases, in Law and Equity, arising under this

Constitution, the Laws of the United States, .. .”

STATEMENT OF THE CASE

The respondents and plaintiffs below, representing

certain minority groups, brought a class action in the

District Court against petitioners and defendants

below under Title 42 U.S.C. §§ 1981 and 1983. Respond-

ents claimed that the written examination for selection

of entry level firemen (Class H2 Fireman) for the

San Francisco Fire Department was discriminatory

against minority candidates; and that said examination

violated their rights to due process and equal protec-

tion of the law under the Fourteenth Amendment to

the Constitution of the United States.

+

The District Court entered several orders during

various stages of the case. (See reported cases at 330

F.Supp. 536; 340 F.Supp. 1351; 360 F.Supp. 733; 369

F.Supp. 77.) In May 1973, the Court held that the

petitioners failed to show that the written test was

job-related under the validation requirements of the

Guidelines issued by the Equal Employment Oppor-

tunity Commission (29 C.F.R. » 1607 et seq.; see

opinion reported 360 F.Supp. 733). The Court then

ordered the petitioners to empirically validate the

written test. The District Court further prohibited

use of the written test to disqualify any candidate;

and ordered that an eligible list be established on the

basis of an oral and athletic test. On November 19,

1973, the court further ordered that the 118 minorities

on the eligible list be appointed to vacancies on the

ratio of one qualified minority for each qualified non-

minority until the minority list was exhausted. (See

369 F.Supp. 77: Appendix C.) The court reserved

jurisdiction to determine whether the racial quota

should be continued and to grant further affirmative

relief as may be necessary.

Petitioners appealed the District Court’s racial

quota order to the Court of Appeals for the Ninth

Cirenit claiming that it was violative of the U.S.

Constitution and the Civil Rights Act of 1964, as

amended. The respondents filed a cross-appeal. Two

intervenors. Firefighters Union, Loeal 798 and an

individual nonminerity candidate on the eligible list

also filed cross-appeals. Petitioners’ request for a stay

in the District Court was denied. No stay was re-

5)

quested in the Circuit Court but the appeal was expe-

dited for hearing at the request of all parties to the

appeal.

While the appeal was pending, the respondents

moved the District Court for an order imposing an-

other racial quota to the effect that 60% of all future

appointments must be minorities until 40% of the Fire

Department personnel were minorities, On September

25, 1974, the court issued a supplemental order to the

order which is subject of the appeal, (See Appendix

D.) The court held that respondents’ motion was pre-

mature but ordered petitioners to validate the same

written test which the Court had earlier held invalid.

(See 360 F.Supp. 733.) It further ordered that in the

event that it does not or could not validate the written

test, then the court would consider granting a further

limited racial hiring quota.’

(1) The Civil Service Commission is ordered to complete on

or before January 31, 1975, validation of its written examination

—which validation would make any future appointment ratio

order unnecessary.

(2) If, for any reason such validation cannot be or is not

completed by that date, the Civil Service Commission is ordered

to by then have completed further tests (including the non-rated

written examination of June 9, 1973 or its pattern equivalent—

with not more than a 50% score cut-off) for placement of ad-

ditional applicants (presumably including minorities) on the

Fireman H-2 list—in which event, or in the event of the Com-

mission’s failure to comply with either of the above, the Court,

under its previous reservation of power, will consider, according

to the then existing cireumstancees, (including among other things

the number of non-minorities (whites) ) appointed meanwhile to

the Department under Paragraph 3 (infra) whether, and if so,

to what extent, a further limited quota requirement should be

imposed as a condition to appointment of further H-2 Firemen

in order to afford relief to any identifiable minority group then

on the list.” (Emphasis added. )

(Appendix D.)

6

In accordance with the court’s supplemental order,

the defendants conducted an empirical validation of

the written examination and has submitted that study

to the Court. Discovery on the empirical validation

issue has heen completed and the matter is awaiting

hearing by the Court. If petitioners fail to prove that

the written test is empirically valid under the Guide-

lines issued by the Equal Employment Opportunity

Commission, then the Court will most likely impose

further racial quotas on newly established eligible lists.

In the interim period, while the case has been on

appeal, the petitioners complied with the challenged

order by appointing eligibles from the list in accord-

ance with the hiring quota. During the litigation, which

was initiated in 1870, no appointments were made to

the entry level fireman rank and, as a result, there had

accumulated over 200 vacancies in that position. The

petitioners made appointments under the quota order,

rather than seek further stay orders because it was

necessary to fill the vacancies and provide essential

firefighting services. At the same time, petitioners

desired to perfect their appeal of the racial quota so

that this important constitutional question cold be

resolved as it relates to the present and continuing

controversy between the parties.

While the appeal was pending all but 10 of the

minority eligibles on the list were appointed. Those 10

waived the right to appointment but can, at any time,

“lift” their waiver and be appointed to an existing

vacancy by virtue of the District Court’s racial quota

order.

LS

7

The question of mootness was first raised by the

Court of Appeals at oral argument on January 16,

1975. The Court of Appeals rendered its opinion on

March 27, 1975, dismissing the appeal as being moot

without considering the merits of the appeal. (Appen-

dix A.) Petitioners’ request for a rehearing en banc

was denied without opinion on May 30, 1975. (Appen-

dix B.)

REASONS FOR GRANTING THE WRIT

1, THE DECISION BELOW IS IN DIRECT CONFLICT WITH

THIS COURT'S DECISIONS ON MOOTNESS

The District Court order of November 19, 1973,

expressly reserved jurisdiction to determine whether

there should be further racial quotas and to order other

affirmative relief.? Pursuant to that reserved jurisdic-

tion, the trial court entertained a motion by respon-

dents to impose a further racial quota on any other

eligible list established by petitioners. On September

23, 1974, the District Court ordered that:

“If, for any reason such validation cannot be

or is not completed by that date, ... or in the

2“(2) Any excess of qualified non-minority applicants remain-

ing at that point on the Civil Service list shall retain their places

thereon and on any future Fireman H-2 Civil Service list con-

stituted as hereinafter provided, subject only to the court’s de-

termination concerning whether the alternating method of ap-

pointing qualified eligibles from any future H-2 list should be

terminated or continued.

“The court, however, reserves power to make such further

orders as may be found necessary to fashion further affirmative

relief compatible with the faets as above found or as they may

be hereinafter found.” (Emphasis added. )

(Appendix C.)

8

event of the Commission’s failure to comply with

either of the above, the Court . . . will consider

. whether, and if so, to what extent, a further

limited quota requirement should be imposed as

a condition to appointment of further H-2 Fire-

men in order to afford relief to any identifiable

minority group then on the list.” (Emphasis

added. )

(Appendix D.)

The reserved jurisdiction by the District Court in

its orders of November 19, 1973 and September 23,

1974 clearly demonstrate that there is a reasonable

expectation that the trial court will afford further

racial quota affirmative relief. If petitioners fail to

validate their written test under the Guidelines prom-

ulgated by the Equal Employment Opportunity Com-

mission (29 C.F.R. 61607 et seq.), it is almost a cer-

tainty that the court will grant further quota relief

on the next fireman eligible list. This high probability

of another racial quota makes the constitutional issues

presented on appeal ‘‘capable of repetition, yet evad-

ing review.” (Southern Pacific Terminal Co, v. ICC,

219 U.S. 498 (1911).)

This Court has retained jurisdiction of numerous

cases in which the conduct challenged by court action

has terminated but where the issues have continuing

effects on the rights and duties of the parties or the

class they represent. Thus, this Court has held that the

termination of a strike does not moot a case where

the underlying labor dispute remains unresolved

(Motor Coach Employees ve Missouri, 374 U.S. 74

(1963) ); where a strike has terminated but the chal-

9

lenged governmental action has not ceased (S uper Tire

Enginering Co. v. McCorkle, 416 U.S. 115 (1974));

where pregnancy is terminated before a court deter-

mination on anti-abortion laws (Roe v. Wade, 410 U.S.

113 (1973); Doe v. Bolion, 410 U.S. 179 (1973));

where durational residency laws are challenged and

during the pendency of litigation the party satisfies

residence requirements (Sosna v. Iowa, ........ fie

95 S.Ct. 553 (1975) ; Dunn v. Blumstein, 405 U.S. 330

(1972) ); where a prohibited exercise of a constitu-

tional right will likely occur again (Steffel v. Thomp-

son, 415 U.S, 452 (1974) ; Carroll v. Commissioners of

Princess Anne, 393 U.S. 175 (1968)); and where an

election has been completed before the issues surround-

ing that election can be decided by the court (Moore

v. Ogilvie, 394 U.S. 814 (1969); Storer v. Brown, 415

U.S. 724 (1974); Rosario v. Rockefeller, 410 U.S. 752

(1973) ).

The decision below fails to apply these decisions to

the continuing controversy which is clearly evident in

this case. The Court of Appeals decision is thus totally

inconsistent with this Court’s interpretation of what

constitutes a case or controversy under Article III of

the U.S. Constitution.

2. THE EXISTENCE OF 10 MINORITY ELIGIBLES UNDER

WAIVER PREVENTS MOOTNESS

The majority opinion below concludes that the Dis-

trict Court’s order has been “fully effected” inasmuch

10

as 10 minority candidates under waiver were offered

but declined appointment.® However, the Circuit Court

fails to discuss the right of each minority candidate

under waiver to “lift” his waiver and obtain appoint-

ment under the District Court’s quota order. This

right to withdraw a waiver exists for the four year

life of the list. There have been, in fact, three minor-

ity candidates under waiver who have withdrawn their

waiver and who have been appointed ahead of non-mi-

nority candidates pursuant to the challenged court

order. This clearly demonstrates the continuing na-

ture of the issue on appeal and that the order has not

been “fully effected.”

It is very probable that other minorities now under

waiver on the eligible list will withdraw their waiver

and request appointment prior to expiration of the

list. In such event, the provisions of the challenged

order will be operative to require their appointment

on the basis of race. The test for mootness is whether

there is a “reasonable expectation that the wrong will

be repeated.” (United States v. W. T. Grant Co.,

345 U.S. 629, 633 (1953).) It is clear that there is

a high probability that (1) the court will grant a fur-

ther racial quota and (2) that at least one of the 10

minority eligibles under waiver will withdraw that

waiver and request appointment under benefit of the

““Sinee the District Court’s Order has been fully effected,

however, no decision that we eould now render as to the Order's

constitutionality could alter the parties’ rights and obligations

under the Order.” (Appendix A.)

‘William H. Downing, Thomas Villafuarte, Clarence Woods.

—

ll

racial quota order. Those circumstances demonstrate

more than a reasonable expectation that the challenged

racial quota will be repeated.

This court’s decision in DeFunis v. Odeygaard, 416

U.S. 312 (1974) is not controlling of the case at

bench. The individual plaintiff, Marco DeFunis, was

permitted to continue in law school while challenging

the school’s admission policies. The challenged admis-

sion process was not “capable of repetition” for the

individual plaintiff since he would be allowed to re-

main in and graduate from law school regardless of the

outcome of his case. Such facts are totally different

than the subject case where the trial Court’s contin-

uing jurisdiction and likelihood of imposing another

racial quota, together with 10 minority eligibles who

remain on the list under waiver presents a question

which is highly “capable of repetition.” Furthermore,

the subject case is a class action and the decision of

the Court will have a direct effect on both the petition-

ers and respondents. If only one minority candidate

on the civil service eligible list can claim a right under

the challenged racial quota, a case or controversy will

continue to exist under Article III of the U. S. Con-

stitution.

3. THERE IS A REASONABLE EXPECTATION THAT THE

RACIAL QUOTA WILL BE ORDERED AGAIN

The decision below states that:

“It is purely speculative as to whether the

appellees might seek, or the District Court might

grant, an order of similar effect in the future.”

(Appendix <A.)

12

This conclusion does not comport with the facts.

Respondents have moved the court for further quota

relief and the court will most likely act iavorably on

that motion in the event petitioners do not validate

the written test in accordance with the Guidelines

issued by the Equal Employment Opportunity Com-

mission, (29 C.F.R. $1607 et seq.) Once a party makes

out a prima facie case of employment discrimination,

the employer has the burden of showing that employ-

ment tests have a manifest relationship to the job in

question. (Griggs v. Duke Power Co., 401 U.S. 424

(1971).) The burden of proof is a heavy one (Chance

v. Bd. of Examiners, 458 F.2d 1167 (2nd Cir.) 1972)

and in the reported cases most public and private

employers have failed to demonstrate that their tests

are “job related.” (See Griggs v. Duke Power Co.,

supra; Albemarble Paper Co. v. Moody, ........ fs

Dockets Nos. 74-389 and 74-428, decided June 25, 1975;

Western Addition Community Organization v. Alioto,

360 F.Supp. 733 (1973); Officers for Justice v. Civil

Service Com. of San Francisco, 371 F.Supp. 1328

(1973): Bridgeport Guardians, Inc. v. Bridgeport

Civ. Serv. Com., 354 F.Supp. 778 (1973); Castro v.

Beecher, 334 F.Supp. 930 (1971), affd. in relevant

part 459 F.2d 724 (1st Cir. 1972); Chance v. Bd. of

E.raminers, 330 F.Supp. 203 (1971), affd. 458 F.2d

1167 (2nd Cir. 1972); Commonwealth of Pennsylvania

vr, O'Neill, 348 F.Supp. 1084 (1972), affd. 473 F.2d

1029 (3rd Cir. 1973); Harper v. Mayor and City

Council of Baltimore, 359 F.Supp. 1187 (1973) ; Com-

monivealth of Pennsylvania v. Glickman, 370 F.Supp.

13

724 (1974); Smith v. City of East Cleveland, 363

F.Supp. 1131 (1973).)

It should be noted that petitioners have earlier

failed to validate the same written test which the

Court has now ordered to be validated again.’ The

Court, in its supplemental order of September 23,

1974, has conditioned the imposition of further racial

quotas on the validation of this identical written test.

Since petitioners have already failed to meet the bur-

den of proof to demonstrate that the written test was

content valid, it is readily apparent that petitioners

have an extremely difficult, if not impossible, burden

to now demonstrate that the same written test is em-

pirically valid. Facing such a heavy burden of proof,

the likelihood that petitioners will show validity of

the written examination is remote. Under those facts

the Circuit Court erred in concluding that it was

likely that petitioners would prove validity of their

examination.®

5360 F.Supp. 733 at 739:

‘‘Upon consideration of the evidence as a whole, quanti-

tatively and qualitatively, the court finds, after full hearing,

that the City’s evidence on this issue of ‘validation’ does not

preponderate; at very best, the evidence is no more than evenly

balanced and, therefore, the court is bound to resolve the

issue against the party having the burden of proof on the

issue—in this case the City defendants: further, for reasons

hereinabove set forth, the City has failed to make a sufficient

prima facie case of validation to justify approval of the pro-

posed written examination on a provisional basis subject to

further hearings which would entail long continued litigation

and create more uncertainty among applicants for Fireman

H-2.”’

6Tt is more likely, we think, given the passage of time, that the

appellants will have performed an acceptable job-relatedness vali-

dation of their already revised written examination for firemen

applicants.” (Appendix A.)

14

It must be concluded, that there is more than a

reasonable likelihood that the trial court’s reserved

powers of granting further affirmative relief will be

invoked, There is, therefore, a controversy which is

“capable of repetition, yet evading review.” (Southern

Pacific Terminal Co. v. ICC, supra.)

The concurring opinion below of Justice Barnes

expresses “grave doubts” that this action is moot. He

recognizes that there is a reasonable expectation that

the wrong will be repeated and that it is “capable of

repetition, yet evading review.” This reluctant con-

currence expresses the reasons why the appeal should

not be mooted. When there is any doubt as to the

mootness of a case, the court ought to retain juris-

diction and adjudicate the existing controversy be-

tween the parties.

4. THIS CASE PRESENTS AN ONGOING CONTROVERSY

This case is still active in the District Court and

the parties are subject to the court’s continuing jur-

isdiction. Assuming that one of the minority eligibles

withdraws his waiver and requests appointment, the

petitioners would be required by the subject court

order to appoint that eligible in accordance with the

racial quota order. Assuming further that petitioners

refused to make such appointment, they would be

subject to the contempt powers of the District Court.

Under those facts, the Court of Appeals was in error

to conclude that the case is moot. It is abundantly

clear that the respondents, a class of minority eligibles

15

on the civil service list, and the petitioners have exist-

ing rights and obligations which are subject to the

court’s jurisdiction. The constitutionality of the racial

quota presents a case and controversy as long as there

remains one eligible on the list who can claim a right

of appointment by virtue of the challenged racial

quota. The power of the court over the parties con-

tinues undiminished until the last minority eligible

is appointed. Then, under its reserved jurisdiction,

the court will consider the imposition of further racial

quotas in the event petitioners fail to validate their

written examination.

The facts establish an extant controversy at all

stages of the proceedings; and the Court of Appeals

committed error in dismissing the appeal as moot.

Not only is the controversy existing at the present

time, but due to the reserved jurisdiction of the court

to grant further affirmative relief, the racial quota is

“capable of repetition, yet evading review.” (Southern

Pacific Terminal Co. v. ICC, supra.)

16

5. THE ISSUES PRESENTED BY THE APPEAL

ARE IMPORTANT

This case, on the merits, presents an issue which is

vitally important to the parties involved and to the

civil service merit system. The San Francisco Charter

requires that all appointments in the public service

shall be made solely upon merit and fitness as estab-

lished by appropriate tests without regard to partisan,

political, social or other considerations (§8.310(a) );

and that the person standing highest on the list of

eligibles shall be certified to a vacant position (§8.329).

The racial quota order directly conflicts with these sec-

tions of the Charter and with the intent of the civil

service merit system. In view of the District Court’s

probable imposition of further quotas and the existence

of minority candidates under waiver who are governed

by the court order, it is clear that there is a case or

controversy in which it is capable to decide the merits

of this important constitutional question. Such deci-

sion will not only benefit the parties involved but also

the general public. There is no reason to postpone

adjudication of such vital constitutional issues pre-

sented in the matrix of a continuing case or contro-

versy. Supreme Court Justice Douglas, in his dis-

senting opinion to the DeFunis case urged that the

court retain jurisdiction because of the importance of

the constitutional question presented by that case. He

said at 416 U.S. 312, 350:

“Because avoidance of repetitious litigation

serves the public interest, that inevitability coun-

sels against mootness determinations, as here, not

compelled by the record. Cf. United States v

17

W. T. Grant Co., supra, at 632, 97 L Ed 1303;

Parker v Ellis, 362 US 574, 594, 4 L Ed 2d 963,

80 S Ct 909 (1960) (dissenting opinion). Al-

though the Court should, of course, avoid unnec-

essary decisions of constitutional questions, we

should not transform principles of avoidance of

constitutional decisions into devices for sidestep-

ping resolution of difficult cases. Cf. Cohens v

Virginia, 6 Wheat 264, 404-405, 5 L Ed 257

(1821) (Marshall, C. J.).

On what appears in this case, I would find that

there is an extant controversy and decide the

merits of the very important constitutional ques-

tions presented.”

The constitutional issues presented by petitioners’

appeal are not hypothetical but are real and important

to the parties and to the general public. Those consti-

tutional issues should be decided in the context of this

adversary proceeding rather than be avoided on an

erroneous conclusion that the case is moot.

CONCLUSION

The decision below is clearly in conflict with the

decisions of this Court on mootness, The appeal on the

merits presents important constitutional issues which

are “capable of repetition” and existent in a continu-

ing controversy in the District Court. It appears clear

from the facts of this case that the “case or contro-

versy” requirement of the Constitution is satisfied and

that the Court of Appeals was in error in dismissing

the appeal as moot.

18

For the foregoing reasons, petitioners respectfully

urge this Honorable Court to grant this petition for a

writ of certiorari to review the judgment and opinion

of the Court of Appeals of the Ninth Circuit.

Dated, San Francisco, California,

August 23, 1975

Respectfully submitted,

THOMAS M. O’CONNOR,

City Attorney, City and County of San Francisco,

Attorney for Petitioners.

Micuaet C, KILLeELgEA,

Deputy City Attorney,

Of Counsel.

(Appendices Follow)

APPENDIX

Appendix A

United States Court of Appeals

for the Ninth Circuit

Western Addition Community

Organization, et al., :

Appellees,

| No. 74-1570

Frank N. Alioto, et al.,

Appellants. |

Western Addition Community

Organization, et al.,

Cross- Appellants,

No. 74-1529

Frank N. Alioto, et al.,

Cross-A ppellees.

Western Addition Community

Organization, et al.,

: OPINION

Appellees,

No. 74-1562

Frank N. Alioto, et al.,

Intervenor (Firefighters),

Appellant.

Western Addition Community

Organization, et al.,

Appellees,

No. 74-1563

Frank N. Alioto, et al.,

Intervenor (Balich),

Appellant. 7

[March 27, 1975]

Appeal from the United States District Court

for the Northern District of California

Before: Barnes, VAN OosTERHOUT,* and ELy, Circuit

Judges.

PER CURIAM:

The detailed history of the subject controversy, to

this time, is carefully set forth in four reported opin-

ions of the District Court. 330 F. Supp. 536 (N.D. Cal.

1971); 340 F. Supp. 1351 (N.D. Cal. 1972); 360 F.

Supp. 733 (N.D. Cal. 1973); and 369 F. Supp. 77 (N.

D. Cal. 1973).

The suit, a civil rights class action instituted pur-

suant to 42 U.S.C. § 1981 and 1983, was originally

filed in the District Court on June 24, 1970. The

appellees sought to remedy a condition that then ex-

isted, i.e., that of the 1800 firemen then employed by

the San Francisco, California Fire Department, only

four were blacks.’ In its first opinion, 330 F. Supp.

536, the court found that the written examination

employed by the Fire Department to select new fire-

men from job applicants had a discriminatory effect.

Concluding, however, that the discriminatory practice

was not shown to have been intentional or invidious,

the court declined to issue an injunction but reserved

the power to make any such additional orders as it

might deem necessary in the future. This disposition

was apparently induced, in part, because of the ex-

*Honorable Martin D. Van Oosterhout, Senior U.S. Cireuit

Judge. Eighth Cireuit, sitting by designation.

1It is recited in one of the District Court’s opinions that at the

time of the 1970 census, San Francisco’s racial composition was 43

percent minority (15 percent black and 28 percent other minority).

369 F.Supp. at 79 n.1.

—..”

ili

pressed willingness of the appellants to so modify

their previously existing selective process so as to elim-

inate its discriminatory effects. The principal object

was the revision of the appellant’s previously existing

“Fireman H-2” written examination so as to make

them truly job-related. Delay after delay ensued. The

court eventually remarked that “. .. the San Fran-

cisco Civil Service Commission has three times failed

... to demonstrate, as required by law, that its chal-

lenged Firemen H-2 written examinations have been

truly job-related.” 369 F. Supp. at 79. The court re-

marked further:

“The Commission’s dilatoriness in these matters

and apparent stubborn insistence upon arguments

and alternatives which this court has repeatedly

found unacceptable, have created an intolerable

situation; the adequacy of Fire Department man-

power for the safety of the City is coming into

question... .”

369 F. Supp. at 80.

In its fourth opinion, from which the above quota-

tions are extracted, the court found that of the then

existing 512 qualified applicants for Fireman H-2

positions, 118 were of so-called minority derivation

and 394, non-minority. The court thereupon decreed

that pending a further Order, the Commission should

“forthwith fill existing Fireman H-2 vacancies—one

(1) qualified minority applicant and one (1) qualified

non-minority applicant alternatively from sublists of

qualified minority and non-minority applicants—until

the sublist of qualified minority applicants has been

exhausted.” 369 F. Sup. at 81. It is from this Order

that the appellants appeal.

iv

The appellees cross-appeal from the District Court’s

subsequent refusal to make its temporary one-to-one

hiring arrangement permanent.

The appellants did not seek a stay of the District

Court’s Order pending appeal. Rather, they complied

with the Decree’s directive. We learned this for the

first time during the oral argument of the cause. We

suggested from the Bench that the appeal had become

moot.” The only response of the appellants, as well

as of the Intervenor, to our suggestion was that the

controversy remained alive, because 10 of the 118

minority applicants had declined offers of Fireman

H-2 positions that had been tendered to them by the

appellants. This response to the court’s suggestion of

mootness is not acceptable. The District Court’s Order

should be fairly interpreted as requiring no more than

bona fide offers of employment to the 118 applicants

for the vacant Firemen H-2 positions—not the accept-

ance of the offers by all of the qualified minority ap-

plicants. This being our interpretation of the District

Court’s Order, we conclude that there remains no live

and existing controversy in respect to the particular

Order from which the appellants appeal.

On this appeal, the appellants assert that the Dis-

trict Court’s Order mandates the employment of a

racial preference in violation of the equal protection

clause of the Fourteenth Amendment to the United

2Since a finding of mootness would deprive our court of juris-

diction. there no longer being an actual ‘‘ease or controversy,’’

U.S. Const. art. III, § 2, we are obligated to consider the question

of mootness, even though it was not raised by the parties. See

Sosna v. Iowa, ....... U.S. .., 48 U.S.L.W. 4125 (U.S., January 14,

1975).

v

States Constitution. Since the District Court’s Order

has been fully effected, however, no decision that we

could now render as to the Order’s constitutionality

could alter the parties’ rights and obligations under

the Order. See DeFunis v. Odegaard, 416 U.S. 312

(1974); North Carolina v. Rice, 404 U.S. 244 (1971).

It is purely speculative as to whether the appellees

right seek, or the District Court might grant, an

order of similar effect in the future. It is more likely,

we think, given the passage of time, that the ap-

pellants will have performed an acceptable job-re-

latedness validation of their already-revised written

examination for firemen applicants. Therefore, such

extraordinary relief as that contained in the Order

here appealed, aimed solely at the dilatory tacties of

the appellants and the critical shortage of firemen

that existed in 1973, will, in all probability, be unnec-

essary. See SEC v. Medical Committee for Human

Rights, 404 U.S. 403 (1972). Accordingly, the prin-

cipal appeal is dismissed as moot, and we express no

opinion as to the constitutional validity of the Dis-

trict Court’s Decree.

As to the cross-appeal, a District Court, sitting in

equity, is vested with the widest latitude in exercising

its discretion in respect to the vacating or modifica-

tion of an equitable decree. From the record before

us we are not persuaded that the court clearly abused

its discretion in denying to the eross-appellants, at the

time they made their application for permanent. re-

lief, the modified decree which thev sought. We there-

fore affirm the Order that the cross-appellants bere

challenge.

vi

All parties to the appeal and cross-appeal, including

the intervening union, shall bear the costs which they,

respectively, have incurred in connection with the pro-

ceedings in this court.

SO ORDERED.

Barnes, Circuit Judge, concurring:

I have grave doubts that this action (alleged as a

class action but apparently not certified as such) is

moot. I cannot in good faith say with assurance “that

‘there is no reasonable expectation that the wrong will

be repeated.’ ” United States v. W.T. Grant Co., 345

U.S. 629, 633 (1953); nor that this case does not

involve a short term order “capable of repetition, yet

evading review.” Southern Pacific Terminal Co. v.

1.C.C., 219 U.S. 498, 515 (1910).

Interpreting the order before us on this appeal as

my brothers do,

First: that this appeal is only from paragraph

(1) of the order of November 19, 1973:

Second: that because the ten remaining minority

applicants have declined offers of em-

ployment tendered them “the list of

qualified minority applicants has been

exhausted” ;

Third: that the district court may never again

act as it heretofore has, to create a “fu-

ture H-2 list” (even though it asserts

it has the future right to do so under

paragraph (2) of said order of Novem-

ber 19, 1973) ; and

Vil

finally, recognizing the necessity of husbanding judi-

cial time and effort, Alton & Southern Railway Com-

pany, et al. v. International Association of Machinists

and Aerospace Workers, 463 F.2d 872, 877-82 (D.C.

Cir. 1972), ie, this “rationing [of] scarce judicial

resources among competing claimants” (See: D.

Kates: Mootness in Judicial Proceedings: 62 Cal. L.R.

1385, 1401, 1412 and 1442 (Dec. 1974); La Sala v.

American Savings & Loan Ass’n., 5 Cal. 3rd 864; 489

Pac. 2d 1113 (1971), I reluctantly concur in the result

reached in the majority opinion.

Appendix B

United States Court of Appeals

for the Ninth Circuit

Western Addition Community

Organization, et al.,

Appellees,

vs.

Frank N. Alioto, et al.,

Appellants.

Western Addition Community

Organization, et al.,

Cross-Appellants,

vs.

Frank N. Alioto, et al.,

Cross-Appellees.

Western Addition Community

Organization, et al.,

Appellees,

vs.

Frank N. Alioto, et al., |

Intervenor (Firefighters),

Appellant.

Western Addition Community

Organization, et al.,

Appellees,

vs.

Frank N. Alioto, et al.,

Intervenor (Balich),

Appellant. :

| May 30, 1975]

No. 74-1570

No. 74-1529

\ ORDER

No. 74-1562

No. 74-1563

Before: Barnes, VAN OosTeRHOUT,* and ELy,

Circuit Judges.

The panel in the subject. case (Barnes, Van Ooster-

hout, and Ely) votes unanimously to deny the Peti-

tion for Rehearing. Judge Ely votes to reject the sug-

gestion for en bane rehearing. Judges Barnes and

Van Oosterhout recommend that the suggestion for

en bane rehearing be rejected.

The full court has been advised of the suggestion

for an en bane hearing, and no judge of the court has

requested a vote on the suggestion for rehearing en

pane, Fed R. App. P. 35(b).

The petition for rehearing is denied and the sug-

gestion for a rehearing en bane is rejected.

Stanley N. Barnes

/s/Walter Ely

Martin D. Van Oosterhout

United States Circuit Judges

Honorable Martin D. Van Oosterhout, Senior United States

Circuit Judge, Eighth Circuit, sitting by designation.

Appendix C

United States District Court,

N. D. California,

No. 701335 WTS.

ee

—T : i

Western Addition Community

Organization, et al., |

at Plaintiffs, '

vs.

Frank N, Alioto, et al.,

Defendants. ;

Nov. 19, 1973.

MEMORANDUM OF DECISION

Sweicert, District Judge.

This case, involving San Francisco Civil Service

tests for selection of Fireman H-2, is again before the

court on plaintiff’s motion of June 19, 1973, request-

ing the court to implement its previous orders by

granting immediate and further relief, specifically re-

questing that the court impose a racial quota formula,

favoring appointment of minority applicants over

non-minority Fireman H-2 applicants, until the racial

composition of the Fire Department fairly reflects,

percentage-wise, the racial composition of San Fran-

cisco’s population.’

1Plaintiffs point out, for example, that the 1800-man San Fran-

cisco Department includes only 4 men of the Negro race appointed

through regular Civil Service Commission selection procedures al-

xi

The law, however does not require that employment,

either private or public, must proportionately reflect

the community racial population. On the contrary, the

1964 Civil Rights Act, Title 42 U.S.C. § 2000e-2(j),

expressly provides that nothing in the Act shall be

interpreted to require any employer to grant prefer-

ential treatment to any individual or group on a racial

basis merely because of an imbalance between the per-

centage of his employees of that race in comparison

with the percentage of persons of that race in the

conununity population as a whole.

All that the law requires is that no minority job

applicant {and for that matter no white job appli-

cant), who is otherwise qualified or readily qualifiable

to perform a job, shall in effect be excluded from that

job by an employment test that goes beyond the actual

requirements of the job and thus adversely affects

applicants, generally minorities, who, although able to

do the job, lack the background and education to pass

an overdemanding test. When it appears, as in this

case, that an employment test has operated adversely

against certain racial groups, then the test becomes

suspect as being overdemanding and, therefore, pre-

sumptively discriminatory and unlawful, and remains

so unless and until the employer meets the burden of

demonstrating that the particular test is, nevertheless,

not overdemanding, but truly job-related and, there-

fore, a necessary test for the job’s performance.

though the City’s racial composition, according to the 1970 census,

is 43% minority (15% black-28%% other minority) and will be in

1975, according to a census projection, 51% minority (so-called).

The City’s high schools are already 65% minority.

xii

This the San Francisco Civil Service Commission

has three times failed to do in this case, i.e., it has

failed to demonstrate, as required by law, that its

challenged Fireman H-2 written examinations have

been truly job-related. See Decision of January 8,

1971 re the written test of 1968; the Decision of Feb-

ruary 17, 1972 re the written test of September, 1971,

and the Decision of May 9, 1973 re a proposed 1973

written test.

It has been held by the Court of Appeals of this

Ninth Cireuit (see United States v. Iron Workers

Union, 443 F. 2d 544 (9th Cir. 1971)) and by many

other federal courts (See e. g., Carter v. Gallagher,

452 F.2d 315 (8th Cir. 1971) and Louisiana v, United

States, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709

(1965) ), that in such a situation the foregoing provi-

sion of the 1964 Civil Rights Act must not be used by

Federal District Courts to avoid responsibility for

granting affirmative remedies designed to eliminate

any such present discriminatory practices, to assure

the non-repetition thereof in the future and to remove

the vestiges of past discriminatory practices; that

such affirmative remedies may be granted even though

it cannot be established that the discriminatory prac-

tices were intentional or invidious.

This court has thus far refrained from invoking af-

firmative remedies in this case, pointing out in our

decision of May 9, 1973, that any discriminatory

practices in this case were not shown to have been

intentional or invidious and that such remedies

(which should be invoked by the courts only as a last

xiii

resort) seemed unnecessary at that time because of

the court’s expectation that rejection rates adverse to

minority Fireman H-2 applicants would be cured

within a reasonable time by simply enjoining use of

the challenged written examination as a test until

properly validated—meanwhile filling Fireman H-2

vacancies according to the applicants’ scores on the

other oral and athletic tests as the City had planned

to do in any event.’

By its orders of February 7, 1972, February 17,

1972 and March 7, 1972, this court ordered that, pend-

ing submission of a written test properly validated as

sequired by law, the Commission should proceed with

all due diligence to give to the 1968 Fireman H-2

applicants their oral and athletic tests in order to pro-

vide a Fireman H-2 Civil Service list from which

Fire Department vacancies would be filled until the

City was able to bring any desired written test into

compliance with the law.

Five months later, this court by its order of July

20, 1972, found that the Commission, even by that

date, had already had a reasonable time within which

to proceed with those oral and athletic tests and or-

dered it to proceed with them within 30 days from the

date of that order.

2As indicated in previous Memoranda of Decisions of the court,

the Commission uses its written test, not to rate applicants, but

only as a pass-fail test to exclude applicants who fail to correctly

answer an arbitrarily fixed percentage of the questions, from pro-

ceeding to take the oral and athletic tests upon which the surviving

applicants will be actually rated and ranked on the Civil Service

list.

xiv

Nearly a year later, this court by its order of May

9, 1973, after rejecting the Commission’s proposed

1973 examination) again directed the “»mmission to

do two things: (1) to proceed with reasonable dili-

gence to empirically validate its Fireman H-2 selec-

tion procedures as considered necessary even by its

own Director of Recruitment as far back as November

24, 1971, and(2) meanwhile, in order that there be no

further interruption in filling San Francisco fireman

manpower requirements, to fill the Fire Department’s

current and developing vacancies in the manner auth-

orized and directed by this court as far back as Feb-

ruary 1972.

To date the Civil Service Commission has failed to

comply with either of these two requirements—not-

withstanding the fact that the San Francisco Fire

Department has meanwhile accumulated in excess of

200 vacancies with additional vacancies occurring

every month. In other words, a vitally necessary City

facility, which must operate on double shifts around

the clock day and night, is now more than 11% under-

manned.

Further, notwithstanding this court’s previous

orders of February and March, 1972, to proceed

promptly with giving to the 1968 Fireman H-2 appli-

eants their oral and athletic tests (lest fireman man-

power requirements and the rights of applicants be

adversely affected), the Commission failed to com-

plete its athletic tests until August, 1973, and its oral

tests until September, 1973.

xv

The Commission’s dilatoriness in these matters and

apparent stubborn insistence upon arguments and al-

ternatives which this court has repeatedly found un-

acceptable, have created an intolerable situation; the

adequacy of Fire Department manpower for the

safety of the City is coming into question; all Fire-

man H-2 applicants, both minority and non-minority,

have been kept in a state of uncertainty for several

years and the rights of minority applicants to a more

prompt correction of the City’s still unvalidated selec-

tion procedures are involved,

The Commission now has a pool of Fireman H-2

applicants who have taken and passed its tests as

follows: The written examinations :* 126 minority and

394 non-minority applicants took and passed the writ-

ten examination at a 50 out of 100 questions exclusion

cut-off point and, under Civil Service procedures, be-

came eligible to proceed to the oral and athletic tests.

The oral? and athletic examinations: 118 minority

This written examination was given on June 9, 1973, to 524

applicants (130 minority and 394 non-minority) under a provision

of this court’s previous order of May 9, 1973 allowing the giving

of that proposed written test for certain limited purposes and

subject to certain conditions stated at pp. 14-15 of that order—

one of which conditions was that such written test might be ten-

tatively approved if the exclusionary cut-off was fixed at a point

that would assure no adverse effect upon minority applicants. The

Commission has heretofore proposed a cut-off point of 65° but

the court now finds that only if that cut-off point be modified to

509, will avoidance of adverse effects on minority applicants be

assured.

4A]] through this litigation plaintiffs’ challenge to the Commis-

sion 's selection procedures has been directed at the written exami-

nation. Not until June 19, 1973, did plaintiff raise a question eon-

cerning the oral examination which was then being given under

xvi

and 394 non-minority applicants took and passed the

oral examination and the athletic examination and

will be rated and ranked on the Foreman H-2 eligible

list according to their scores.

All 512 applicants (118 minority and 394 non-mi-

nority) who have taken and passed these three exam-

inations (and also certain background and medical

tests) are now civil service qualified Fireman H-2

eligibles. There can no longer be any valid ¢laim that

appointment of any or all of them, minority or other-

wise, will involve introduction of untested, unqualified

minority applicants into the Fire Department.’

Upon the facts found and for the reasons indicated

above the court concludes and makes its further order

as follows:

(1) Until the further order of this court, the 512

Fireman H-2 applicants who have passed the written

examination, the oral examination and the athletic

examination as above set forth, shall constitute the

Civil Service list from which the Commission shall

proceed to forthwith fill existing Fireman H-2 va-

cancies—one (1) qualified minority applicant and one

(1) qualified non-minority applicant alternatively

the ecourt’s order and was not complete until September. For this

reason the issue of the validity of the oral examination has not

been heard. However, reports on the results of the oral examina-

tion completed in September do not show any such adverse effect

on. minorities as would justify eliminating, at this point, that test

for rating purposes.

‘in adaition, the City has the right under its own ordinance to

terminate any Fireman H-2 who, during the initial 8 week Fire

(‘ollege on-the-job training and testing period or during the one

vear probationary period, or at any other time allowed by law, is

found to lack any job-related knowledge, skill or trait. Nothing

in this order shall be deemed to impair that right.

xvu

from sublists of qualified minority and qualified non-

minority applicants—until the sublist of qualified mi-

hority applicants has been exhausted.°

‘Similar and even more far-reaching affirmative relief has been

e:ented in 13 federal cases (5 involving fire department civil

service and 8 involving police department civil service) ; three of

these eases have been Court of Appeal cases (1st, 2d and 8th Cir-

cnits). See also, Morrow ease, 5th Cireuit, infra, and 10 have been

District Court eases. No federal cases to the contrary have been

called to our attention.

Carter v. Gallagher, 452 F.2d 315, 327 (8th Cir. 1971, cert. den.

by U.S. Supreme Court, 405 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d

338 (1972), a Minneapolis Fire Department Civil Service case in

which an & to 1 Cireuit (en banc) decision holds to the effect that,

although absolute preference is improper, the District Court should

impose some reasonable quota hiring system, e. g., a one to one

ratio (p. 330 seq.) until a certain member of qualified minority

persons have been hired; Castro v. Beecher, 459 F.2d 725, 736

(1st Cir. 1972), a Boston Police Department Civil Service case in

which the court reverses 334 F.Supp. 930 (Wyzansky, J.) for fail-

ure to provide some form of affirmative quota relief; Bridgeport

vy. Civil Service Commission, 482 F.2d 1333, 1340 (2d Cir. 1973),

a Bridgeport, Connecticut, Police Department Civil Service case

in which the court unanimously affirms a hiring quota (one for

one) until 50 minority patrolmen appointed, as had been required

by the District Court in 354 F.Supp. 778 (D.Conn.1973); Morrow

vy. Crisler, 479 F.2d 960 (5th Cir. 1973), a Highway Police Civil

Service case in which a 2 to 1 majority decision is to the effect

that the District Judge's failure to inelude affirmative quota relief

was not necessarily an abuse of discretion; a dissenting judge held

contra, citing among other eases United States v. Ironworkers, 443

F.2d 554 (9th Cir. 1971), cert. den., 404 U.S. 484, 92 S.Ct. 447,

30 L.Ed.2d 367. A majority of the active judges of the 5th Cir-

euit voted in favor of a hearing en bane which was held October

17. 1973, but no final decision as of 2/6/73.

See also, District Court cases in which quota relief has been

eranted: Davis v. County of Los Angeles (Los Angeles Fire De-

partment) No, 73-63 W.P.G. (C.D.Calif. 6/7/73; Coffee v. Braddy,

No. 71-H (M.D.Fla.1971): Arnold v. Ballard, No. C-73-478 (N.D.

Ohio 5/14/73); Harper v. Baltimore (Fire Dept.) 359 F.Supp.

1187 (| D.Md.1973); Commonwealth v. O’Neil (Philadelphia Police

Department), 348 F.Supp. 1084 (E.D.Pa.1972) (modified in 473

FP2d 1929 (3rd Cir. 2/8/73 en bane); NAACP y. Allen (State

Police) 349 F.Supp. 703° (N.D.Ala.1912); Shield Club v. City of

Moyveland, 370 F.Supp. 251 (N.D.Ohio 1972); Pennsylvania vy.

Sebastian, 368 F.Supp. 854 (W.D.Pa.1972).

See also. Poreelli vy. Titus, 431 F.2d 1254 (3rd Cir. 1970), cert.

den, 402 U.S. 9H, 91. 8.Ct. 1612, 29 L.Ed.2d 112 (1971), a Newark

XViii

(2) Any excess of qualified non-minority applicants

remaining at that point on the Civil Service list shall

retain their places thereon and on any future Fireman

H-2 Civil Service list constituted as hereinafter pro-

vided, subject only to the court’s determination con-

cerning whether the alternating method of appointing

qualified eligibles from any future H-2 list should be

terminated or continued.

(3) Meanwhile, the Conumiission shall continue to

take steps with all reasonable diligence to comply with

this court’s previous orders to empirically validate its

Fireman H-2 selection procedures as being truly job-

related and nondiscriminatery within the meaning of

Civil Rights Act of 1964, Title VI; also Guidelines on

Employee Selection Procedures (Federal Register,

Title 29, Chap. XIV, §§ 1607.1-1007.14; Griggs v.

Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.

2d 158 (1971); and, upon a showing to that effect, to

New Jersey School faculty promotion case in which the court

unanimously holds that a challenged preferential promotion pro-

cram, although based on race, was designed te racially integrate

the faculty and was proper. (Compare, Anderson vy. S.F. School

Dist.. 357 F.Supp. 248 (N.D.Cal.1972); Defunis v. Odegaard, 82

Wash.2d 11, 507 P.2d 1169, 1181 (1973), a State University Law

School admission case in which a white applicant claimed prefer-

ential admission had been given to minority applicants. A 6 to 2

decision, reversing trial court, holds that the challenged adimis-

sion procedure was not arbitrary or capricious (citing Carter vy.

(jallagher, supra; also citing Poreelli v. Titus, supra). A dissent

(507 P.2d at pp. 1197 and 1200) eites Anderson vy. S.F. School

Distriet, supra. It is this case which was recently 11/20/73 ae-

cepted on certiorari by the U.S. Supreme Court (42 Law Week

3306). Compare this aeeeptance with the denial of certiorari in

Carter v. Gallagher, supra.

see alse, school teacher hiring cases, e. ¢., rmstead v. Stark-

ville Sehool Distriet, 461 F.2d 276 (Sth Cir. 1972); Baker v. Colum-

bus, 462 F.2d 1112, 1115 (5th Cir. 1972).

-_——

conduct its future Fireman H-2 examinations based

on such validated tests.

(4) Ti connection with any future Fireman H-2

Civil Service examinations and as a means of reassur-

lng and encouraging minority applicants the Commis-

sion shall take steps designed to inform all potential

Fireman H-2 applicants—especially but not exelu-

sively, potential minority applicants—concerning its

application and testing procedures giving a general

description of the subjects considered to be job-re-

lated, and that its examinations have been validated

as above required.

(5) These provisions should serve to expedite the

filling of existing and rapidly increasing Fire Depart-

ment vacancies with qualified eligible applicants in-

cluding at least 118 qualified minority applicants. The

court, however, reserves power to make such further

orders as may be found necessary to fashion further

affirmative relief compatible with the facts as above

found or as they may be hereinafter found.

Appendix D

United States District Court

Northern District of California

No. 70 1335 WTS

Western Addition Community

Organization, et al.,

Plaintiffs,

vs,

Frank N, Alioto, et al.,

Defendants.

ee

ORDER

(Supplement to this Court’s Order

of November +9, 1973)

[ Filed Sep. 23, 1974]

Plaintiff's pending motion is for an order to the

effect that 60% of all future appointments of Firemen

H-2 from the San Francisco Civil Service list must

be minorities (i.e., appointment of 5 minorities for

every 2 non-minority-white) until 40% of the Depart-

ment personnel consists of minorities—presumably to

reflect the City’s racial population pattern.

This motion is premature because there are now

no minority eligibles on the present Civil Service

xxi

list—all of the 118 minority eligibles on the list hav-

ing already been given expedited (1 for 1 ratio)

appoltment by the Civil Service Commission—some

waived appointment) in compliance with this Court’s

order of November 19, 1973; all eligibles now remain-

ing on the list happen to be non-minority (white)

who have taken the tests, qualified and have been

long awaiting appointment.

The effect of such an order as plaintiffs request

would be te prohibit appointment of any of those

non-minority (white) eligibles remaining on the list

until more, but presently unidentifiable, minority per-

sons might apply in the future for testing and place-

ment on the list—with a then increased preferential

ratio of 3 minorities for every 2 whites.

This court does not consider such an order to be

timely, necessary or fair and, further, it could ad-

versely affect the efficiency of the Fire Department

and the public safety.' |

'1This court’s invocation of a limited appointment ratio in its

Order of November 19, 1973, was designed to expedite the appoint-

inent of a limited number (118) of identified minority eligibles

who had actually taken the examination &nd were then actually

eligible on the list from which appointments were then being un-

reasonably delayed by defendants. That order should not be con-

strued as an implication that the court must now issue such an

unlimited, open-ended order as plaintiffs request as a means of

requiring that Fire Department personnel reflect the racial pat-

tern of the City.

In making its November 19, 1973 Order, this Court recognized that

racia! quotas for such a purpose run counter to the poliey ex-

pressiv declared in the 1964 anti-diserimination employment law

(42 U.S.C. § 2000 2-j) which expressly provides that ‘‘nothine

in this Aet shall be interpreted to require anv emplover to grant

preferential treatment to any individual or group on a racial basis

merely beeause of an imbalanee between the percentage of his

ee

However, insofar as plaintiff’s motion requests that

the Civil Service Commission proceed with diligence

(as already previously ordered by this Court) to com-

plete further tests for placement of additional appli-

cants on the list who, presumably, will include both

minority and non-minority), the motion will be

granted to the following extent:

(1) The Civil Service Commission is ordered to

complete on or before January 31, 1975, validation

of its written examination—which validation would

make any future appointment ratio order unnecessary.

(2) If, for any reason such validation cannot be

or is not completed by that date, the Civil Service

Commission is ordered to by then have completed

further tests (including the non-rated written exam-

ination of June 9, 1973 or its pattern equivalent—

with not more than a 50% score cut-off) for place-

ment of additional applicants (presumably including

minorities) on the Fireman H-2 list—in which event,

or in the event of the Commission’s failure to comply

with either of the above, the Court, under its previous

employees of that race in comparison with th percentage of per-

sons of that race in the community population.”’

The Court further recognized that, although many federal Dis-

trict Courts and Courts of Appeal have thus far refused to regard

that Act of the Congress as prohibiting judicial remedial relief

in the forin of racial quotas (See authorities cited at p. 2 of our

November, 1973 Order), such racial quotas, as stated in that

order, ‘‘should be invoked by courts only as a last resort.’’ See

similar eaveats in most of the cited eases and see also, e.g., the

reeent ease of Harper v. Baltimore, 359 F.Supp. 1187 (1973) at

pp. 1213-1215—a fire department ease in which a racial quota,

although reeognized as within the judicial power, was refused.

It was with such eaveats and limitations in mind that this Court

ordered expedited appointments for an identifiable, limited (118)

minority group then already on the eligible list.

Oe ee

Oe

reservation of power, will consider, according to the

then existing circumstances, (including among other

things the number of non-minorities (whites)) ap-

pointed meanwhile to the Department under Para-

granh 3, infra) whether, and if so, to what extent,

a further limited quota requirement should be im-

posed as a condition to appointment of further H-2

Firemen in order to afford relief to any identifiable

minority group then on the list.

(3) Pending compliance by the Commission with

this Order and the further determination of this

Court, the Civil Service Commission, upon filing with

it (and with this Court) a certification by the Chief

of the Fire Department that the efficiency of the

Department and or the public safety requires immedi-

ate appointment of additional H-2 Firemen giving the

number thereof, may appoint such number of eligibles

from the present Fireman H-2 Civil Service list. The

Commission will file a report of any such action with

this court—with a copy to the parties to this action.

Dated: September 23, 1974.

/s W. T. Sweigert

W. T. Sweigert

United States District Judee