# Petition — Banta v. Firefighters Institute for Racial Equality > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2642%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 443 U.S. 904 ## Text PH Ciprama faut, VL | H ‘BILED } ef MAR 19 1979 | AOE RAIN AA OR AS i RITES GMP ARR AN ALE EET AR! ELLIOT | t MisHne RODAK, JR., CLERK | IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1978 Be vac hint 78-1441 EDWIN DAVID BANTA and GEORGE HOHMANN, Petitioners, Vv FIREFIGHTERS INSTITUTE FOR RACIAL EQUALITY, et al., Respondents. PETITION FOR A WRIT OF CERTIORARI To the United States Court of Appeals for the Eighth Circuit JEROME A. DIEKEMPER JOHN H. GOFFSTEIN 130 South Bemiston Avenue Clayton, Missouri 63105 (314) 727-0922 Attorneys for Petitioners Of Counsel BARTLEY, GOFFSTEIN, BOLLATO & LANGE 130 South Bemiston Avenue Clayton, Missouri 63105 St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477 fad aa INDEX i i ee Ce ee en ee «ee 6. Cee 6 ee ee ee ee eee 0 8 EE ne ee eee EE ES rr ERE OE ET Constitutional and Statutory Provisions Involved ....... EE EEE Opinion of the District Court on Remand .......... Positions of Parties on Appeal ................... Opinion of the Court of Appeals ................. Reasons for Granting the Writ ..................... I. The decision of the Court of Appeals raises con- stantly recurring questions of great importance and national concern with respect to the appropriateness under the Constitution and Title VII of the Civil Rights Act of 1964 of preferential or quota relief EE Ee II. The decision of the Court of Appeals grants an un- constitutional remedy and conflicts with the letter and spirit of decisions of Supreme Court and other courts of appeals regarding the remedial provisions of Title VII of the Civil Rights Act of 1964 ...... ee SWNT Neos kv waa g's ee ec cease Appendix I. Opinion of the United States Court of Appeals for EE I SI AA & WC NY NN N 10 10 12 19 II. Order of United States Court of Appeals for the Eighth Circuit (denying Intervenors’ Petition for Re- EL he Peay EY Geek pra Wea w scien saw « A-16 III. January 26, 1978 Order, United States District Court, Eastern District of Missouri IV. October 21, 1977 Order, United States District Court, Eastern District of Missouri V. December 19, 1978 Order, United States District Court, Eastern District of Missouri ............. A-27 Cases Cited Albemarle Paper Co. v. Moody, 422 U.S. 405 ee, BEE UES MAY TOE toe a eOn Kena 7, &2, 33, 38 Bolling v. Sharpe, 347 U.S. 497 (1934) .............. 15 Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, 482 F.2d 1333 (2d Cir., eee 10, 16 Carter v. Gallagher, 452 F.2d 315, modified on rehearing en banc, 452 F.2d 327 (8th Cir., 1972), cert. denied I as tse ae oe eae Me Ts ya 10, 15 Chance v. Board of Examiners, 534 F.2d 993 (2nd Cir. cp, POT RETAINS Tene or Ne ea ean 16 Davis v. County of Los Angeles, 566 F.2d 1334, cert. granted — U.S. —, 46 U. S. Law Week 3780 (1978) 10, 16 Detroit Police Officers Assn. v. Young, 446 F. Supp. 979 : (E.D. Mich., 1978) EEOC v. Sheetmetal Workers Local 638, 532 F.2d 821 (2d Cir., 1976) Firefighters Institute for Racial Equality v. City of St. Louis, — F.2d —, 18 FEP Cases 1083 (8th Cir., i Franks v. Bowman Transportation Co., 424 U.S. 747 so akighe oe ET ee CE OE Ce eae Ta Sra ae aeRO 12, 13, 18 iii Furnco Construction Co. v. Waters, — U.S. —, 17 FEP ee BE CIB an 6k 5c he Os cad coc els Reed ae ees 14 Griggs v. Duke Power Co., 401 U.S. 424 (1971) ...... 14 Harper v. Kloster, 486 F.2d 1134 (4th Cir., 1973) ....10, 16 International Salt Co. v. U. S., 332 U.S. 396 (1947) .... 18 Kirkland v. Dept. of Correction Services, 520 F.2d 420 (2nd Cir., 1975), cert. denied 429 U.S. 825 ....... 10, 16 Morrow v. Crisler, 47° F.2d 960 (Sth Cir., 1973), miodi- fied on rehearing en banc, 491 F.2d 1053, cert. denied BOD WE, BOS GIGI nies cin vei gatvoecvciviesss 10 Patterson v. Newspaper & Mail Deliverer’s Union, 514 F.2d 767 (2d Cir., 1975) 2... cccccrecccceee Sc Rios v. Enterprise Assn. Steamfitters Local 638, 501 F.2d cog Be ae) | Th rea ir rine ia i 16 Teamsters v. U. S., 431 U.S. 324 (1977) ....... 7, 12, 13, 18 U. S. v. City of Chicago, 549 F.2d 415 (7th Cir., 1976), cert. denied 434 U.S. 875 (1977) .....---0-+eee: 10, 16 U. S. v. City of St. Louis, 549 F.2d 506 (8th Cir., 1977), cert. denied 434 U.S. 819 ........ eee eee eee eens 2 U. S. v. NL Industries, 479 F.2d 354 (8th Cir., 1973)... 16 University of California Regents v. Baake, — US. —, 17 FEP Cases 1000 (1978) ........ eee cece reece 7,10 Weber v. Kaiser Aluminum & Chemical Corp., 563 F.2d 216 (5th Cir., 1977), cert. granted — U.S. —, 47 US. Law Week 3408 (1978) .......-: cece eee etree 10 Constitutional and Statutory Provisions Cited Fifth Amendment ..........-. Lieut On ante e Seer. 3 Pom it Tey. Oe FF en re 4,12 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1978 ere ae EDWIN DAVID BANTA and GEORGE HOHMANN, Petitioners, V FIREFIGHTERS INSTITUTE FOR RACIAL EQUALITY, et al., Respondents. PETITION FOR A WRIT OF CERTIORARI To the United States Court of Appeals for the Eighth Circuit Petitioners Edwin David Banta and George Hohmann, Inter- venors below, pray that a Writ of Certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Eighth Circuit entered on November 29, 1978. Respondents include the Firefighters Institute for Racial Equality, a corporation, and certain individual black employ- ees and applicants for employment in the Fire Department of the City of St. Louis, Missouri (hereinafter collectively referred to as “Private Plaintiffs”); the United States of America, a plaintiff below; and the City of St. Louis, Missouri, a municipal corporation, and certain City officials (hereinafter referred to collectively as “the City”). OPINIONS BELOW The opinion of the Court of Appeals, unofficially reported at 18 FEP Cases 1083, is reprinted in the Appendix at pp. Al- 15. The Order of the Court of Appeals denying Petitioners’ Petition for Rehearing and Suggestion for Rehearing In Banc is reprinted in the Appendix at p. A-16. The unreported Order of the United States District Court for the Eastern District of Missouri dated January 26, 1978, is reprinted in the Appendix at p. A-17 and that the Court’s un- reported Order of October 21, 1977, is reprinted in the Ap- pendix at p. A-23. Also, included is an order dated December 19, 1978, reprinted in the Appendix at p. A-27. Previous orders of the District Court and Court of Appeals respectively in this matter are reported at 410 F. Supp. 948 and 549 F.2d 506, cert. denied, 434 U.S. 819 (1977). JURISDICTION The judgment of the Court of Appeals was entered on No- vember 29, 1978. Petitioners’ timely Petition for Rehearing was denied on December 22, 1978. Jurisdiction is invoked under 28 U.S.C. §1254 (1). QUESTIONS PRESENTED Did the action of the Court of Appeals in granting an im- mediate absolute preference in promotions to all black candi- dates who passed a promotional examination previously held invalid by the Court of Appeals, in the absence of any findings concerning the qualifications of the black candidates relative eas Mibeaae to those of non-black candidates, exceed the remedial provi- sions of Title VII of the Civil Rights Act of 1964, as amended, and/or violate the constitutional rights of the non-black can- didates? In the absence of proof that but for the administration of an invalid promotional examination certain black individuals would have been promoted, could the Court of Appeals prop- erly order the promotion of all those blacks who passed the invalid examination, where no non-black candidates had been promoted as a result of the examination? Where promotions are made exclusively from the ranks of incumbent employees, are the competing rights of all employees to have an equal opportunity for advancement so substantial as to preclude a quota or absolute preference in favor of a class or group of minority employees from ever being “appropriate” either as “affirmative action” or “equitable relief’ within the meaning of Section 706(g) of Title VII of the Civil Rights Act of 1964? Should the Court of Appeals have ordered the immediate promotion of all black employees who passed an invalid pro- motional examination, where the Court's prior remand order suggested neither the necessity nor the appropriateness of such relief, where the District Court exercised its discretion in not affording such relief, where neither the United States nor Pri- vate Plaintiffs sought such relief, and where the Court of Ap- peals was aware the employer would have a new examination prepared a month after the Court’s opinion was rendered? CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Fifth Amendment, United States Constitution, in relevant part provides: iol a No person shall. . . be deprived of life, liberty, or prop- erty, without due process of law. . Title VII of the Civil Rights Act of 1964, as amended, in relevant part provides: § 706(g) “If the court finds that the respondent has in- tentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, . . . or any other equitable relief as the court deems appropriate. . . . No order of the court shall require the . . . promotion of an individual ... If such individual was refused . . . advancement... . for ity, etc., et al., Appellants, tea Appeal from the United States Dis- trict Court for the Eastern District of Missouri. The City of St. Louis, Missouri, etc., et al., Appellees, and Joseph Blessing, et al., Intervenors-Appellees. J The Court having considered petition for rchearing en banc filed by counsel for intervenors-appellees and, being fully ad- vised in the premises, it is ordered that the petition for rehearing en banc be, and it is hereby, denied. Considering the petition for rehearing en banc as a petition for rehearing, it is ordered that the petition for rehearing also be, and it is hereby, denied. December 22, 1978 — A-17 — APPENDIX Ill United States District Court Eastern District of Missouri Eastern Division United States of America, ’ Plaintiff, 7 | No. 74-200 C (3). City of St. Louis, et al., Defendants. . Firefighters Institute for Racial Equal- > ity, et al., Plaintiffs, vs. > No. 74 C 30 (3). The City of St. Louis, Missouri, et al.. Defendants. J ORDER (Filed January 26, 1978) Pursuant to the mandate of the United States Court of Ap- peals for the Eighth Circuit, and upon motions of the parties, the Court hereby enters the following order in these causes. Prior thereto the Court expresses deep disappointment with the intransigence of all parties and their continued unwillingness to conscientiously and industriously seek an acceptable procedure for filling the numerous vacancies existing in the position of Fire Captain, which vacancies should be filled if the safety of the persons and properties of St. Louisans is to be assured. — dit — IT IS HEREBY ORDERED that the October 21, 1977 order of this Court be and is set aside. IT IS FURTHER ORDERED, ADJUDGED, and DE- CREED that this Court’s nunc pro tunc order of June 28, 1976 is hereby re-entered as of this date and made a part of this order and that all reports and records as are provided for therein shall be accessible to counsel for all parties. IT IS FURTHER ORDERED, ADJUDGED, and DE- CREED that, except as otherwise provided herein, defendants, their officials, agents, employees and all persons acting in concert with them are hereby permanently enjoined from engaging in any act or practice with respect to promotions to the rank of Fire Captain within the St. Louis Fire Department which has the unlawful purpose or effect of discriminating against any black applicant for such position because of race or color. IT IS FURTHER ORDERED, ADJUDGED, and DECREED that, except as otherwise provided herein, defendants are per- manently enjoined from making permanent or temporary ap- pointments or acting assignments to the position of Fire Captain in any fashion which is in any respect based upon the eligibility list or written test for Fire Captain prepared in 1974. IT IS FURTHER ORDERED, ADJUDGED, and DECREED that, except as otherwise provided herein, defendants shall make no appointments to the position of Fire Captain except upon the basis of an examination process shown to be valid in ac- cordance with Title VII of the Civil Rights Act of 1964, as amended, and the guidelines of the Equal Employment Op- portunity Commission issued thereunder. If defendants wish to assert the validity of an examination, they shall submit to counsel for all parties at least sixty days prior to any intended use, evidence of the validity of the elements of the process, in- cluding a copy of the validation study and all underlying docu- — A-19 — ments or data concerning the development of the selection process and its validity. If the parties are unable to agree upon the validity of the process, the process shall not be utilized unless and until the Court determines, upon motion and such evidentiary hearing as it deems appropriate, that the process has been properly validated. The examination, and copying of any examination process by the parties herein, shall be subject to such protective orders as the Court deems necessary. IT IS FURTHER ORDERED, ADJUDGED, and DECREED that pending development of a valid examination, defendants may, if they so desire, make appointments to the position of Fire Captain by utilizing the following procedure: a) Within two weeks of this date, defendants shall, with the assistance of the parties herein, prepare a racially- identified list of all firefighters who have served five years or more in the position of firefighter, in the order of the departmental seniority date of each fire- fighter. The sole purpose of such list shall be to serve as the source for promotions as set forth in this pro- vision. The name of any firefighter eligible to be in- cluded thereon shall be removed and not considered if he so directs. b) The black firefighter with the most departmental seniority and the white firefighter with the most de- partmental seniority shall then be evaluated by the Assessment Center technique. The firefighter receiv- ing the higher ranking evaluation between the two shall be promoted, regardless of race or comparative seniority. The other firefighter who is not promoted shall then become eligible for the next Fire Captain position to be filled. Also eligible for such position shall be the black firefighter with the next longest de- partmental seniority and the white firefighter with the —_— next longest departmental seniority, who shall also both be evaluated by the Assessment Center technique. The firefighter receiving the highest evaluation of the three shall be promoted. c) The same procedure shall be followed for each vacancy to be filled: with each appointment to a vacancy, the applicant or applicants who had the lower evalua- tion ratings and had not been appointed to prior vacancies shall be eligible for the next appointment, along with the remaining most senior black firefighter and the remaining most senior white firefighter, who shall likewise be evaluated by the Assessment Center technique. The firefighter receiving the highest rank- ing evaluation shall be promoted. Again, those fire- fighters not so promoted shall then become eligible for the next Fire Captain position to be filled. The defendants may fill as many vacancies in the position of Fire Captain as they desire by following the fore- going procedure. IT IS FURTHER ORDERED that, in any event, pending development of a valid examination, the parties may agree upon any procedure they choose for making permanent or temporary or acting appointments to the position of Fire Captain. IT IS FURTHER ORDERED, ADJUDGED, and DE- CREED that defendants shall, within thirty days of this date, submit to counsel for all parties appropriate regulations assur- ing that persons will not be excluded on the basis of race or color from communal eating arrangements within firehouses. Upon agreement by the parties, the Court shall order the im- plementation of such regulations. If the parties fail to agree, the matter shall be submitted to the Court for resolution. IT IS FURTHER ORDERED, ADJUDGED, and DE- CREED that defendants shall retain for a period of five years all ate Pettitte net 8b = wie ed records relating to the screening, selection and appointment of persons for the position of Fire Captain, including all applica- tions, identified by race, and all records relating to the selection procedure. Counsel for all parties shall have the right to inspect and copy all such documents upon reasonable notice to de- fendants without further order of the Court. IT IS FURTHER ORDERED, ADJUDGED, and DE- CREED that defendants shall submit, together with the reports required in the June 28, 1976 nunc pro tunc order incorporated herein, a) the name, address, telephone number, date of appoint- ment and race of each person appointed to the posi- tion of Fire Captain; b) the number of persons identified by race who were dis- qualified for appointment to the position of Fire Cap- tain, classified by the reason for disqualification; c) the name, address, telephone number and race of each person who failed to complete probation as a Fire Captain; d) a racially-identified copy of any eligibility list for Fire Captain established during that period: e) a racially-identified list of persons serving as acting cap- tains during the reporting period, showing hours served for each person in that acting capacity. IT IS FURTHER ORDERED, ADJUDGED, and DE- CREED that this Court retain jurisdiction of this action for a period of five years for such further relief or other orders as may be necessary or appropriate. At any time after five years from date of entry of this order, defendants may move the Court upon forty-five days’ notice to the parties for dissolution of this order and upon their showing that the goals of this order have been achieved, the order may be dissolved. No. 74-200 C (3) Dated: January 26, 1978. : City of St. Louis, et al., Defendants. ) Firefighters Institute for Racial Equality, » et al., Plaintiffs, Vs. > No. 74 C 30 (3) The City of St. Louis, Missouri, et al., Defendants. J ORDER ~ Pursuant to the mandate of the United States Court of Ap- peals for the Eighth Circuit, and upon motion of the United States of America, IT IS HEREBY ORDERED, ADJUDGED, AND DE- CREED that this Court’s nunc pro tunc order of June 28, 1976 is hereby re-entered as of this date and made a part of this order. IT IS FURTHER ORDERED, ADJUDGED, and DE- CREED that defendants, their officials, agents, employees and all persons acting in concert with them are hereby permanently enjoined from engaging in any act or practice with respect to es — A-24 — promotion to the rank of Fire Captain within the St. Louis Fire Department which has the purpose or effect of discrim- inating against any black applicant for such position because of race or color. IT IS FURTHER ORDERED, ADJUDGED, and DE- CREED that, except as otherwise provided herein, defendants are permanently enjoined from making permanent appoint- ments and temporary or acting assignments to the position of Fire Captain in any fashion which is in any respect based upon the eligibility list or the written test for Fire Captain prepared in 1974, IT IS FURTHER ORDERED, ADJUDGED, and DE- CREED that, except as otherwise provided herein, defendants shall make no appointments to the position of Fire Captain except upon the basis of an examination process shown to be valid in accordance with Title VII of the Civil Rights Act of 1964, as amended, and the Guidelines issued thereunder. If defendants wish to assert the validity of an examination, they shall submit to plaintiffs’ counsel at least sixty days prior to any intended use, evidence of the validity of the elements of the process, including a copy of the validation study and all underlying documents or data concerning the development of the selection process and its validity. If the parties are unable to agree on the validity of the process, the process shall not be utilized unless and until the Court determines, upon motion and such evidentiary hearing as it deems appropriate, that the process has been properly validated. IT IS FURTHER ORDERED, ADJUDGED, and DE- CREED that pending development of a valid examination proc- ess, defendants may make appointments to the position of Fire Captain if at least fifty percent of the vacancies are filled with qualified blacks. All black applicants who were placed upon the eligibility list for Fire Captain prepared in 1974 shall be know — A-25 — deemed qualified during this interim period. If all blacks on that list are appointed and defendants desire to make further appointments during the interim period, the parties shall meet to determine an appropriate basis for determining the order of promotion for other black firefighters qualified for promotion by virtue of the time-in-grade and efficiency rating standards. To the extent practicable, the fifty percent goal established for permanent appointments during the interim period shall be fol- lowed for assignments as acting captain during the interim period. IT IS FURTHER ORDERED, ADJUDGED, and DE- CREED that defendants shall, within thirty days of this, submit to counsel for plaintiffs appropriate regulations assuring that persons will not be excluded on the basis of race or color from communal eating arrangements within firehouses. Upon agree- ment by the parties, the Court shall order the implementation of such regulations. If the parties fail to agree, the matter shall be submitted to the Court for resolution. IT IS FURTHER ORDERED, ADJUDGED, and DE- CREED that defendants shall retain for a period of five years all records relating to the screening, selection and appointment of persons for the position of Fire Captain, including all applica- tions, identified by race, and all records relating to the selection procedure. Plaintiffs’ attorneys shall have the right to inspect and copy all such documents upon reasonable notice to defend- ants without further order of the Court. IT IS FURTHER ORDERED, ADJUDGED, and DE- CREED that defendants shall submit, together with the re- ports required in the June 28, 1976 nunc pro tunc order in- corporated herein, a) the name, address, telephone number, date of appoint- ment and race of each person appointed to the posi- tion of Fire Captain: — A-26 — b) the number of persons identified by race who were dis- qualified for appointment to the position of Fire Cap- tain, classified by the reason for disqualification; c) the name, address, telephone number and race of each person who failed to complete probation as a Fire Captain; d) a racially-identified copy of any eligibility list for Fire Captain established during that period; ¢) a racially-identified list of- persons serving as acting captains during the reporting period, showing hours served for each person in that acting capacity. IT IS FURTHER ORDERED, ADJUDGED, and DE- CREED that this Court retains jurisdiction of this action for a period of five years for such further relief or other orders as may be necessary or appropriate. At any time after five years from date of entry of this order, defendants may move the Court upon forty-five days’ notice to plaintiffs for dissolution of this order and upon their showing that the goals of the order have been achieved, the order may be dissolved. IT IS FURTHER ORDERED, ADJUDGED, and DE- CREED that counsel for plaintiff Firefighters Institute of Racial Equality shall be awarded $6,000.00 in attorney’s fees. IT IS FURTHER ORDERED, ADJUDGED, and DE- CREED that plaintiffs shall be awarded costs incurred herein. /s/ JOHN F. NANGLE United States District Judge Dated: October 21, 1977. — >. APPENDIX V United States District Court Eastern District of Missouri Eastern Division United States of America, ) Plaintiff, vs. No. 74-200 C (3) City of St. Louis, et al., Defendants. Firefighters Institute for Racial Equal- ity, et al., VS. No. 74 C 30 (3) City of St. Louis, Missouri, et al., Defendants. ; ORDER (Filed December 19, 1978) Pursuant to the mandate of the United States Court of Ap- peals for the Eighth Circuit, and upon motion of the parties, the Court hereby enters the following order in these causes. IT IS HEREBY ORDERED, ADJUDGED and DECREED that the City of St. Louis shall immediately promote the top or first twelve (12) black firefighters who passed the 1974 ex- amination to the position of fire captain, if otherwise still quali- fied. IT Is FURTHER ORDERED. ADJUDGED and DECREED by this Court, in the exercise of its discretion, that the City of St. Louis shall immediately promote the top or first twelve (12) — A-28 — x white firefighters who passed the 1974 examination to the posi- tion of fire captain, if otherwise still qualified. IT IS FURTHER ORDERED, ADJUDGED and DECREED that any additional promotions which the City of St. Louis desires to make prior to the development of a valid examina- tion must be made in accordance with the Assessment Center technique, as previously set forth by this Court in its order of January 26, 1978. IT IS FURTHER ORDERED, ADJUDGED and DECREED that the City of St. Louis, its agents, servants, and employees ang all persons acting in concert with them are hereby per- manently enjoined from making any assignments to the posi- tion of acting fire captain that does unfairly disadvantage black candidates for promotion and further, in order to implement this the City of St. Louis is required to make said assignments reflecting a fifty (50) per cent black ratio, as far as practicable, pending the development of a valid examination. © IT IS FURTHER ORDERED, ADJUDGED and DECREED that the City of St. Louis utilize best efforts to develop a prop- erly validated examination for the position of fire captain by January 1, 1979. The Court shall assist in the expedition of resolving any parties’ objections to said examination. IT IS FURTHER ORDERED, ADJUDGED and DECREED that F.I.R.E. be awarded the further sum of Four Thousand Dollars ($4,000.00) for attorney’s fee. /s/ JOHN F. NANGLE United States District Judge Dated: December 19, 1978. = --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2642%3A1. Public record. Not legal advice.