Amicus Brief — Firefighters v. Stotts

i

OCT 22 Wes

Nos. 82-206, 82-229 ALEXANDER lL. STEVAS,

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

FIREFIGHTERS LOCAL UNION No. 1784,

: Petitioner,

CARL W. SToTTs, et ai.,

Respondents.

MEMPHIS FIRE DEPARTMENT, et al.,

. Petitioners,

CARL W. STOTTS, et a/.,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW AS AMICUS

CURIAE IN SUPPORT OF RESPONDENTS

FRED N. FISHMAN RICHARD M. SHARP *

RoBert H. Kapp JEFFREY C. MARTIN

Co-Chairmen DaviD M. BRENNER

WILLIAM L. ROBINSON SHEA & GARDNER

LAWYERS’ COMMITTEE FOR 1800 Massachusetts Ave., N.W.

CrviL RIGHTS UNDER Law Washington, D.C. 20036

733 15th Street, N.W. (202) 828-2000

Washington, D.C. 20005

(202) 682-6700

Attorneys for Amicus Curiae

Lawyers’ Committee for Civil Rights Under Law

October 24, 1983 * Counsel of Record

WILSON - EPES PRINTING Co.. INC. - 769-0096 - WASHINGTON, 0.C. 20001

QUESTIONS PRESENTFD

This brief will address the following questions:

(1) Whether the correctness of a preliminary injunc-

tion prohibiting the City of Memphis in May 1981 from

reducing by layoffs or demotions the percentage of blacks

then occupying certain positions in the Memphis Fire

Department is moot where all the firefighters laid off or

demoted by Memphis in 1981 have been restored to their

former positions and the preliminary injunction has

expired.

(2) Whether a preliminary injunction prohibiting the

City of Memphis in May 1981 from reducing by layoffs

or demotions the percentage of blacks then occupying

certain positions in the Memphis Fire Department ex-

ceeded the district court’s inherent authority to modify a

prior consent decree to preserve the relief granted therein.

(3) Whether § 706(g) of the Civil Rights Act of 1964

authorizes race-conscious relief for systematic employ-

ment discrimination.

(i)

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE .....................00000-+. :

SUMMARY OF ARGUMENT ............... ciaasiapeannentaseei

ITE scttrscssictevininiticiicunesonmmsciernemscsnenenin eminsorenmes

I.

II.

THIS CASE IS MOOT BECAUSE THE PRE-

LIMINARY INJUNCTION AT ISSUE HAS

BEEN IRREVOCABLY CARRIED OUT AND

THIS COURT’S REVIEW OF THAT EX-

PIRED INJUNCTION WOULD NOT AFFECT

THE PARTIES’ LEGAL RIGHTS ....................

A. The Correctness of the District Court’s Deci-

sion to Grant a Preliminary Injunction Is

SE ccctentdeocoaumace -s ceneescetaiacseapbentons saidpieanenanaionnans

B. The Expired Preliminary Injunction !s Not

Savec From Mootness By the Fact that Laid-

off Employees Did Not Accrue Seniority

Credit During the Layoff Period —............... a

C. The Expired Preliminary Injunction Is Not

Justiciable As An Order “Capable of Repeti-

tion, Yet Evading Review” ............................

THE PRELIMINARY INJUNCTION WAS AN

APPROPRIATE EXERCISE OF THE DIS-

TRICT COURT’S INHERENT AUTHORITY

TO MODIFY A CONSENT DECREE TO EF-

FECTUATE ITS PURPOSE IN LIGHT OF

CHANGED CIRCUMSTANCES 000...

A. The Preliminary Injunction Does Not Rest

Upon the District Court’s Remedial Author-

ity Under Title VII But Rather Upon Its

Inherent Authority to Modify the Original

Consent Decree so as to Effectuate Its Basic

SUE soctoierbapceseaniaibaneuinisiniimmabdinnsnecnnmaibiasinmentin

Page

10

13

13

iv

TABLE OF CONTENTS—Continued

Page

B. The District Court Did Not Abuse Its Discre-

tion In Issuing the Preliminary Injunction.... 20

III]. THE FEDERAL COURTS ARE AUTHORIZED

TO GRANT RACE-CONSCIOUS AFFIRMA-

TIVE RELIEF UNDER TITLE VII ............ 24

ee eIIITTIITT "isisiiessnicehnnialshneaeiitisipeaildaiimbiesinitinsaisen 30

Vv

TABLE OF AUTHORITIES

CASES: Page

Airline Stewards & Stewardesses Association, Lo-

cal 550 v. American Airlines, Inc., 573 F.2d 960

(7th Cir. 1979), cert. denied, 439 U.S. 876

omen 3, 16

Alabama v. United States, 279 U.S. 229 (1929) .. 22

Albemarle Paper Co. v. Moody, 422 US. 405

I a i a ae 25

Alexander Vv. Gardner-Denver Co., 415 U.S. 36

RETR aR ET RRP eee oan rnniy HTL wr eran oo re MED 17

Americas: Book Co. v. Kansas, 193 U.S. 49 (1904) . 6,8

Arizona vy. California, 51 U.S.L.W. 4330 (U.S.

SR I IED "visa canruceieninaiemmmeiamameaneteens 13, 15

Association Against Discrimination in Employ-

ment, Inc. v. Bridgeport, 647 F.2d 256 (2d Cir.

1981), cert. denied, 455 U.S. 988 (1982) ............ 19

Association Against Discrimination in Employ-

ment, Inc. Vv. Bridgeport, 710 F.2d 69 (2d Cir.

SRE a PIs AM Er PRI oe EUR R RAR me 21

Boston Chapter, NAACP v. Beecher, No. 81-1642,

slip op. (1st Cir. Aug. 31, 1983) —.............-0....... 9

Boston Chapter, NAACP v. Beecher, 504 F.2d

1017 (ist Cir. 1974), cert. denied, 421 U.S. 910

EATERS STEPS ene ees we serene ramen nee ae rce< worn sem 26

Boston Firefighters Union v. Boston Chapter,

NAACP, 51 U.S.L.W. 4566 (U.S. May 16, 1983).. 9, 12

Brown v. Chote, 411 U.S. 452 (1973) —.................... 22

Brown Vv. Neeb, 644 F.2d 551 (6th Cir. 1981) _.... 18, 21, 22

Brownlow v. Schwartz, 261 U.S. 216 (1922)... 6

Campbell Soup Co. v. Martin, 202 F.2d 398 (3d Cir.

IID ccpucibeciasrhent tcice inh hittin laeciniietdhietanibbaicigiaebinaiaadiaie 6

Carson vy. American Brands, Inc., 654 F.2d 300

SY AI, I casita ennmeseneenateetbinnmnnnie 16,17

Castro v. Beecher, 522 F. Supp. 873 (D. Mass.

1981), aff’d, 679 F.2d 965 (ist Cir. 1982), va-

cated, 108 S. Ct. 3661 (1968) ................................. 9

Chisholm v. United States Postal Service, 665 F.2d

482 (4th Cir. 1981) .. 26

Chrysler Corp. V. United ‘States, 316 ‘US. "556

IIIT ois cnstricasiapachrinriiadianianecttnaiaiieamenimeatal 3, 13, 15, 16, 21

vi

TABLE OF AUTHORITIES—Continued

Columbia Artists Management, Inc. v. United

States, 381 U.S. 348 (1965) ...................................

County of Los Angeles v. Davis, 440 U.S. 625

I ac a ee

Day Vv. Mathews, 530 F.2d 1083 (D.C. Cir. 1976)...

DeF unis v. Odegaard, 416 U.S. 312 (1974) ......... 1,

EEOC vy. American Telephone & Telegraph Co.,

556 F.2d 167 (3d Cir. 1977), cert. denied, 438

U.S. 915 (1978) ......... Da ee re ce

EEOC vy. Safeway Stores, Inc., 611 F.2d 795 (10th

Cir. 1979), cert. denied, 446 U.S. 952 (1980)_3,

Evans Vv. Buchanan, 512 F. Supp. 839 (D. Del.

a a

Exxon Corp. Vv. Texas Motor Exchange, Inc., 628

i ff REESE eves

Firefighters Institute for Racial Equality v. City

of St. Louis, 616 F.2d 350 (8th Cir. 1980), cert.

denied, 452 U.S. 988 (1981) ...................................

Franks v. Bowman Transportation Co., 424 U.S.

747 (1976) ....... Po EE aS Sty Ne RON

Fulenwilder v. Firefighters Association Local Un-

ion 1784, 649 S.W.2d 268 (Tenn. 1982) .............

Haskell vy. Kansas Natural Gas Co., 224 U.S. 217

RRS ETRE ee Sr ee dene eR

Hughes v. United States, 342 U.S. 353 (1952)........

Illinois State Board of Elections v. Socialist Work-

ers Party, 440 U.S. 173 (1979) 000000000.

King v. Laborers International Union, Local No.

818, 443 F.2d 273 (6th Cir. 1971) 0000 ..

Kremens Vv. Bartley, 431 U.S. 119 (1977) ............

Liquid Carbonic Corp. v. United States, 350 U.S.

869 (1955), rev’g 123 F. Supp. 652 (E.D.N.Y.

EEE See ee Ea ae SEALS OTR NI

Lecsal 58, International Association of Heat &

Frost Insulators & Asbestos Workers v. Vogler.

407 F.2d 1047 (5th Cir. 1969) 0.0.

Local No. 8-6, Oil, Chemical and Atomic Workers

International Union v. Missouri, 361 U.S. 363

IED scsotpiesindnnstsienetiasinisiiepebaneiteebiaasiiidbinnbiinbiaetiasaabil

10

20

11,12

26, 27

15, 16

21

21

26

19, 26

10, 11

vii

TABLE OF AUTHORITIES—Continued

Page

Lorillard v. Pons, 434 U.S. 575 (1978) -................... 29

Moore v. City of San Jose, 615 F.2d 1265 (9th Cir.

AR eee ne See ae Ee 16

Murphy v. Hunt, 455 U.S. 478 (1982) ...................... 8, 10

Pacific Railroad vy. Ketchum, 101 U.S. 289 (1879).. 16

Pasadena City Board of Education v. Spangler,

SSE Ee ey ont Eee 13, 15

Patterson v. Greenwood School District 50, 696

I arse sae crrrtaeien 20

Regents of the University of California v. Bakke,

I ee 1, 29

Richmond Newspapers, Inc. v. Virginia, 448 U.S.

a ER I RR a A 12

Rios v. Enterprise Association Steamfitters Local

638, 501 F.2d 622 (2d Cir. 1974) ......................... 26

Society Hill Civic Association v. Harris, 632 F.2d

SE I II, TIED onc icssiac cciaatieehesniiaeiliambtiaalidiel 16

Southern Pacific Terminal Co. v. ICC, 219 U.S. 499

RRR nee ee DT io Rs ER 10

Super Tire Engineering Co. Vv. McCorkle, 416 US.

SN MII cnscnceiis pesticaiececipehtadnhiahinaeisethaaeeeienataiatetbiaaiad 12

Swift & Co. v. United States, 276 U.S. 311 (1928)... 3,16

System Federation No. 91 v. Wright, 364 U.S. 642

IIIT «senscenatiness “oneniiniioncesebasdiadteineadeatmmeaaemmmidaciestmanel 13, 17, 22

Teamsters Vv. United States, 431 U.S. 324 (1977).. 19, 25,

26

Thompson Vv. Sawyer, 678 F.2d 257 (D.C. Cir.

SES PPR enna Ae nN meres 26

United States v. Armour & Co., 402 U.S. 673

EE ee ae eS eae 22, 23

United States y. Atlantic Refining Co., 360 U.S.

I aaah deel ean 22

United States v. Christie Industries, Inc., 465 F.2d

1002 (3d Cir. 1972) .. ‘ian 6

United States v. City of Alesondvia, 614 F. 2d 1358

(5th Cir. 1980) . a 26

United States v. City @ Chicago, 663 ‘F.2d 1354

(7th Cir. 1981) ........... voialinhnddeiiial abe 26

viii

TABLE OF AUTHORITIES—Continued

Page

United States v. 1.B.E.W., Local No. 38, 428 } .2d

144 (6th Cir.), cert. denied, 400 U.S. 943

ID ai cccccimstesepest ss ness haatineriemnmngennnttite 26

United States Vv. 1.B.E.W., Local No. 212, 472 F.2d

634 (6th Cir. 1973) .........-------------+--eseeeeeeteeee? 29

United States v. International Harvester Co., 274

U.S, GOB (1927) ....-.-------c--c--c--ceeeeeeensnnennsenennsnesennnens 21

United States v. International Union of Elevator

Constructors Local Union No. 5, 538 F.2d 1012

(BA Cir, 1976) .............------n--ceceeseensernsnesesesnssersnesnees® 29

United States v. Ironworkers Local 86, 443 F.2d

544 (9th Cir.), cert. denied, 404 U.S. 984

CADTL) ...-.n.n.nce-n--csececenscenensnrneenseensesonenensnenesenornssnosesess 26, 28

United States v. ITT Continental Baking Co., 420

U.S. 223 (1975) .....-----.-----c-eceeneeeeeenennensnenennnsnoenrenees 22, 24

United States v. Lee Way Motor Freight, Inc., 625

F.2d 918 (10th Cir. 1979) ............---------se ee 26

United States v. Swift & Co., 286 US. 106 (1932). 3, 13,

15, 16, 21

United States v. United Shoe Machinery Corp., 391

U.S. 244 (1968) .......-----------c-c---c-ceeceeeeeenenceennenneees 13, 21, 22

United States v. W.T. Grant Co., 345 U.S. 629

(BOBBY ..n....-ccnnencecenensovsensnsensesevsnersssnensenes IONE 10

United Steelworkers v. Weber, 443 U.S. 193

CIID ecccccctesnsscecevseccmennrsoneserntes aa ee 1, 19, 28, 30

University of Texas v. Camenisch, 451 U.S. 390

COTY acecnccceceneserdesseserseeenseoee NP RTE AEDES Ne iia 6,8

Walling v. Miller, 188 F.2d 629 (8th Cir. 1943),

cert. denied, 321 U.S. 784 (1944) .. ........-.--. eosdes 16

Weinstein v. Bradford, 423 U.S. 147 (1975) ......-.--- 10

Western Addition Community Organization V.

Alioto, 514 F.2d 542 (9th Cir.), cert. denied,

423 U.S. 1014 (1975) .......-----------c-eeee-neeeeeeeeeteeeee> 6, 11, 12

White v. Roughton, 689 F.2d 118 (7th Cir. 1982),

cert. denied, 103 S. Ct. 1524 (1983) ...............--- 22

W.R. Grace & Co. v. Local Union 759, 51 U.S.L.W.

4643 (U.S. May 31, 1983) .............-.- pee. 2, 8,9, 18

Wright v. Council of the City of Emporia, 407 U.S.

AB1 (1972) ....---------n-o-e-ececeneeeeeeeneesnsenenenenenensnnanenenenss 15

ix

TABLE OF AUTHORITIES—Continued

STATUTES: Page

Civil Rights Act of 1964,

Title VII, 42 U.S.C. § 2000e et seq. (1976 &

| RNR Ee passim

§ 703(h), 42 U.S.C. § 2000e-3(h) (1976)........ passim

§ 703(j), 42 U.S.C. § 2000e-3(j) (1976)....... passim

§ 706(g), 42 U.S.C. § 2000e-5(g) (1976)........ passim

Equal Employment Opportunity Act of 1972, Pub.

'S FF * § | § Rae es 28

LEGISLATIVE MATERIAL:

Subcomm. on Labor of the Senate Comm, on Labor

and Public Welfare, Legislative History of the

Equal Employment Opportunity Act of 1972....

110 Cong. Rec. 2567, 2568, 2570 (1964) 000.

of EF BR OE, Re

OTHER AUTHORITIES:

Brodin, The Standard of Causation in the Mized-

Motive Title VII Action: A Social Policy Per-

spective, 82 Colum. L. Rev. 292 (1982) ................ 20

2 A. Larson, Employment Discrimination § 54.41

UTI cxensssisenesectenssntuatudaninetnennndetansiadaseaiaeiaaaananee 21

Opinion of Tennessee Attorney General No, 79-172

GEES. BA, TIPU ccseerenecisecsnevidteniaeen 7

11 C. Wright & A. Miller, Federal Practice and

Procedure § S061 (1078) ...........00:c.cccccccceccsesccecceee 21

S&S

BRIEF FOR THE LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW AS AMICUS

CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS CURIAE'

The Lawyers’ Committee for Civil Rights Under Law

was organized in 1963 at the request of the President of

the United States to involve private attorneys in the

national effort to assure civil rights to all Americans.

The Committee membership today includes several for-

mer presidents of the American Bar Association, several

law school deans, and many of the nation’s leading

lawyers.

The Committee conducts an extensive litigation pro-

gram against employment discrimination, representing

both government employees and private-sector employees.

In some of its cases, consent decrees and adjudicated

decrees have been entered that provide race-conscious

affirmative relief to remedy an employer’s past systematic

discrimination. We have previously addressed the legality

of race-conscious affirmative action in our amicus briefs

filed in United Steelworkers v. Weber, 443 U.S. 193

(1979), Regents of the University of California v. Bakke,

438 U.S. 265 (1978), and DeFunis v. Odegaard, 416

U.S. 312 (1974).

The Committee submits this brief primarily to develop

two points that petitioners and their supporting amici

overlook in arguing that Title VII does not authorize

the federai courts to grant race-conscious relief: first,

resolution of their contentions is inappropriate because

the preliminary injunction at issue here is moot; and

second, the question on the merits is not whether Title

VII authorizes the preliminary injunction at bar but

whether the district court abused its discretion in exercis-

ing its inherent authority to modify a consent decree.

We also show that Title VII does authorize race-conscious

relief.

1 The parties’ letters of consent to the filing of this brief are

being filed with the Clerk pursuant to Sup. Ct. Rule 36.2.

2

SUMMARY OF ARGUMENT

1. Mootness. The preliminary injunction at issue is

moot. That order enjoined the City of Memphis in May

1981 from reducing, by layoffs or demotions, the per-

centage of blacks then occupying certain positions in the

Memphis Fire Department. The City complied with this

injunction in making layoffs and demotions within the

Department. Subsequently, the City restored all the

Memphis firefighters who were laid off or demoted to

their former positions. Thus, the preliminary injunction

at issue here has been irrevocably carried out, and no

person’s employment is at stake.

Petitioners have suggested that the expired prelimi-

nary injunction should be reviewed because the formerly

laid-off firefighters lost seniority credit during the layoff

period. But no firefighter has made any claim for resto-

ration of seniority credit, and Tennessee law would not

recognize such a claim. Even if a controversy over sen-

iority credit did exist in some forum, such a controversy

is not before this Court and hence would not justify re-

view of the moot injunction. Moreover, the expired in-

junction, whether affirmed or reversed, would not consti-

tute a defense for the City against claims by formerly

laid-off firefighters for restoration of lost seniority. W.R.

Grace & Co. v. Local Union 759, 51 U.S.L.W. 4643 (U.S.

May 31, 1983).

The expired preliminary injunction is not justiciable as

an order “capable of repetition, yet evading review.”

There is little chance that the 1981 layoffs, unprece-

dented in Memphis history, will recur. And even if

Memphis firefighters are laid off in the future, those

layoffs are not apt to be constrained by injunctive relief

such as that challenged here. With the passage of time

and even modest progress toward the goals of the consent

decree, there will be no basis for enjoining seniority-

based layoffs. Moreover, the preliminary injunction at

bar is not inherently evasive of review. If the petitions

for certiorari had not been held pending disposition of

a similar case, this case would likely have been decided

prior to the recall of the laid-off firefighters. In addition,

it was fortuitous that attrition and retirement permitted

recall of all the laid-off firefighters prior to expiration of

their 2-year recall rights, thus mooting the issue of the

correctness of the injunction.

2. Modification of a Consent Decree. Petitioners con-

tend that the preliminary injunction in this case exceeded

the district court’s authority under Title VII because it

prevented the layoff of black firefighters who may not

have been victims of the City’s discrimination. In their

view, such race-conscious relief is not authorized by Title

VII. But the preliminary injunction at issue here did not

rest upon the district court’s authority to redress viola-

tions of Title VII; it rested upon the court’s inherent

authority to modify an approved consent decree to effectu-

ate its basic purpose in light of unanticipated cireum-

stances. A court may properly exercise its inherent au-

thority to modify a consent decree to effectuate the

original purpose of the decree without making the specific

factual determinations that would be necessary to sup-

port the same relief in a litigated case, and without stop-

ping to inquire whether the defendant could have success-

fully opposed such relief had the case proceeded to trial.

By entering into a consent decree, the parties forego the

litigation that would lead to judicial iden \ ification of the

victims of discrimination. Such a decree may properly be

modified to avoid frustration of the relief granted therein

without reopening the factual disputes composed by the

decree and requiring the plaintiffs to prove their case on

the merits.

The district court did not abuse its discretion in deter-

mining that the preliminary injunction was necessary to

effectuate the consent decree’s purpose in light of the

unanticipated layoffs announced by the City. That court

reasonably concluded that the decree’s purpose is prompt

and ongoing correction of the underrepresentation of

blacks in the Fire Department caused by discriminatory

4

hiring and promotion practices. The district court also

reasonably found that the City’s proposed layoffs on the

basis of seniority would frustrate the decree’s purpose.

3. Race-Conscious Relief under Title VII. Petitioners’

contention that Title VII does not authorize race-conscious

relief is not only inapposite, it is incorrect. Neither

§ 703(h) nor § 703(j), relied upon by petitioners, speaks

to or limits the judicial remedies available to correct vio-

lations of Title VII. Section 706\g), the remedial provi-

sion of the title, vests broad authority in the district

courts to issue such relief as deemed “appropriate.” As

the courts of appeals have unanimously held, race-

conscious relief is “appropriate” in the context of mani-

fest and pervasive employment discrimination. Moreover,

in amending § 706(g) in 1972, Congress endorsed the

prevailing judicial view that the authority conferred by

§ 706(g) encompasses race-conscious remedies that may

benefit persons who are not proven victims of discrimi-

nation.

ARGUMENT

L THIS CASE IS MOOT BECAUSE THE PRELIMI-

NARY INJUNCTION AT ISSUE HAS BEEN IR-

REVOCABLY CARRIED OUT AND THIS COURT'S

REVIEW OF THAT EXPIRED INJUNCTION

WOULD NOT AFFECT THE PARTIES’ LEGAL

RIGHTS

A. The Correctness of the District Court's Decision to

Grant a Preliminary Injunction Is Moot

In May of 1981 the City of Memphis faced an unprece-

dented fiscal crisis and promulgated a layoff policy to

reduce its expenditures.” On May 8, 1981, the district

2 The layoff policy provided that: (1) the Mayor has sole au-

thority to determine which positions would be abolished; and

(2) any person occupying an abolished position may bump a less

senior person within his classification or the least senior empioyee

5

court issued a preliminary injunction restraining the City

from implementing its layoff policy in a manner that

would “decrease the percentage of black lieutenants,

drivers, inspectors and privates that are presently em-

ployed in the Memphis Fire Department.” Pet. App. A78.

The City fully complied with the preliminary injunction

in making the layoffs and demotions it deemed necessary.

Over the next two years, natural attrition and retire-

ments created vacancies in the Fire Department, and,

with the aid of a tax increase, all laid off or demoted

firefighters were restored to their former positions. Re-

spondents’ Suggestion of Mootness at 1; Petitioners’

Joint Opposition to Respondents’ Suggestion of Mootness

(“Joint Opp.”) at 1. Thus, the preliminary injunction of

May 8, 1981, which is the only order under review, has

been irrevocably carried out and no firefighter’s job is

now at stake.

In addition, the preliminary injunction has expired.

That order simply required that the City “not apply the

seniority policy proposed” to decrease the percentage of

blacks occupying certain positions in the Fire Depart-

ment as of May 8, 1981. Pet. App. A78. Thus, even if

the City at some future time announces new layoffs in

the Fire Department, its decision would not be governed

in any way by the order of May 8, 1981."

in a lower classification, or may go on layoff. J.A. 83-89. Because

the actual effect of the layoff policy on an individual's employment

depended on numerous decisions by other employees as well as the

City administration, the City was unable to advise the district

court of the precise impact that the layoff policy would have on

blacks. J.A. 70. An exhibit compiled by the Fire Department and

introduced at the preliminary injunction hearing, however, indi-

cated that the City’s layoff policy would drastically reduce the

number of black lieutenants and drivers. J.A. 69, 96-97.

* Petitioners suggest that the preliminary injunction could con-

ceivably affect future layoffs. Joint Opp. at 4. This contention

is belied by the specific terms of the district court's order, quoted

in text, by its provisional status as a preliminary injunction, and

by the fact-specific rationale for its issuance. “The language of an

injunction must be read in the light of the circumstances surround-

6

Since the correctness of the preliminary injunction is

the only issue before the Court, this case is moot. Uni-

versity of Texas Vv. Camenisch, 451 U.S. 390 (1981),

establishes that “the correctness of the decision to grant

a preliminary injunction” is moot when “the terms of the

injunction * * * have been fully and irrevocably carried

out.” Id. at 394, 398. Numerous other cases confirm

that full compliance with an injunction moots the ques-

tion whether the injunction should have issued. F.g., Oil

Workers Union v. Missouri, 361 U.S. 363 (1960) ; Ameri-

can Book Co. v. Kansas, 193 U.S. 49 (1904); Western

Addition Community Organization y. Alioto, 514 F.2d

542, 544 (9th Cir.) (per curiam), cert. denied, 423 U.S.

1014 (1975) ; Campbell Soup Co. v. Martin, 202 F.2d 398

(3d Cir. 1953). As the Court explained in Oi! Workers

Union:

“The decision we are asked to review upheld only the

validity of an injunction, an injunction that expired

by its own terms * * *. Any judgment of ours at

this late date ‘would be wholly ineffectual for want

of a subject matter on which it could operate. An

affirmance would ostensibly require something to be

done which had already taken place. A_ reversal

would ostensibly avoid an event which had already

passed beyond recall. One would be as vain as the

other. To adjudicate a cause which no longer exists

is a proceeding which this Court uniformly has de-

clined to entertain.’ ”

Oil Workers Union v. Missouri, supra, 361 U.S. at 371,

quoting Brownlow yv. Schwartz, 261 U.S. 216, 217-18

(1922).

ing its entry: the relief sought by the moving party, the evidence

produced at the hearing on the injunction, and the mischief that the

injunction seeks to prevent.” United States v. Christie Indus., Inc.,

465 F.2d 1002, 1007 (3d Cir. 1972). Accord, Haskell v. Kansas

Natwral Gas Co., 224 U.S. 217, 223 (1912). These factors al! indi-

cate that the preliminary injunction waa directed only to the layoffs

announced in May 1981. See also Fed.R.Civ.P. 65(d) (injunction

must “be specific in terms’).

7

B. The Expired Preliminary Injunction Is Not Saved

From Mootness By the Fact that Laid-off Employees

Did Not Accrue Semority Credit During the Layoff

Period

Petitioners maintain that the correctness of the district

court’s decision to issue a preliminary injunction is saved

from mootness because the laid-off firefighters did not

accrue seniority credit during the layoff period, and this

loss adversely affects an employee’s opportunities for

future promotions and job transfers and an employee’s

security from future layoffs. Joint Opp. at 6-7. This

argument fails for several reasons.

In the first place, the petitioners do not suggest that

any formerly laid-off firefighter has filed a claim for

seniority credit or, to raise a related issue, backpay, for

the layoff period. Amicus is aware of no such claim.

Thus, the “controversy” over seniority credit is hypo-

thetical.*

Second, even if such controversies did exist, the deci-

sions of this Court recognize that a case pending here is

not kept alive because related issues are pending between

the same parties in another furum. For example, in Oil

Workers Union v. Missouri, supra, the Court declined

to review an expired anti-strike injunction issued pur-

suant to an allegedly unconstitutional state statute, even

though the challenged statute also governed a monetary

penalty claim pending in state court against the union.

*It is not surprising that no firefighter has brought suit claim-

ing that he was laid off in violation of the Memorandum of Under-

standing, an agreement between the Union and the City providing

that any layoffs shall be made on the basis of seniority. Pet. App.

A81. The Supreme Court of Tennessee has recently confirmed that

the Memorandum of Understanding confers no enforceable rights.

Futenwilder Vv. Firefighters Ass'n Local Union 1784, 649 S.W.2d

268, 270 (Tenn. 1982). The Memorandum of Understanding is

merely a reflection of the right of public employees to “meet and

confer” wid their employer; any binding agreement would violate

the principle of Tennessee law that “[p)ublic employers cannot

abdicate or bargain away their continuing legislative discretion.

***” Opinion of Tennessee Attorney General No. 79-172 (April 10,

1979).

8

“(That suit is not before us. We have not now jurisdic-

tion of it or its issues. Our power only extends over and

is limited by the conditions of the case now before us.”

361 U.S. at 370, quoting American Book Co. v. Kansas,

193 U.S. 49, 52 (1904). Accord, Murphy v. Hunt, 455

U.S. 478, 481 & n.5 (1982) (per curiam); University of

Texas Vv. Camenisch, supra, 451 U.S. at 394.

Third, this Court’s affirmance or reversal of the dis-

trict court’s expired preliminary injunction would have

no effect on any claims by previously laid-off firefighters

for restoration of lost seniority or backpay. The district

court did not order the layoff of any firefighters. Nor

did the district court address the issues of seniority

credit or backpay for firefighters the City might choose

to lay off. Judge McRae stated that “I don’t know what

the policy will be with regard to that memorandum of

understanding that the City signed with the Fire Fight-

ers Union.” Pet. App. A76. Thus, the district court’s

order by its terms and intent does not bar any claims by

laid-off firefighters for restoration of seniority or back-

pay. Under these circumstances, the expired preliminary

injunction would not constitute a defense for the City to

claims by laid-off firefighters. This much is made clear

by this Court’s recent decision in W.R. Grace & Co. V.

Local Union 759, 51 U.S.L.W. 4643 (U.S. May 31, 1983),

which held that a district court injunction requiring an

employer to conduct any layoffs pursuant to the terms

of a Title VII conciliation agreement, instead of pursu-

ant to the seniority provisions of the collective bargain-

ing agreement, does not constitute a defense to a damages

claim by an employee laid off in violation of the collec-

tive bargaining agreement.°

5To carry out the speculation regarding unasserted causes of

action to its logical conciusion, we note that the City has no poten-

tial cause of action that could be affected by this Court’s review of

the district court’s expired preliminary injunction. Even if for-

merly laid-off white firefighters seek backpay or seniority credit

from the City and even if they prevail on those claims, the City

would have no claim for reimbursement against respondents for

securing an allegedly erroneous injunction. No bond was posted for

4

/

9

The recent case of Boston Firefighters Union v. Boston

Chapter, NAACP, 51 U.S.L.W. 4566 (U.S. May 16,

1983) (per curiam) provides an instructive contrast to

the case at bar. That case involved a permanent injunc-

tion enjoining seniority-based layoffs that would decrease

the percentage of minority officers in the Boston Fire and

Police Departments below specified levels. Like the in-

stant case, the laid-off employees were reinstated to their

former positions. Unlike the present case, the laid-off

officers were pursuing administrative appeals seeking

restoration of lost seniority and backpay. Also unlike

the present case, in the Boston case the district court’s

injunction could have been interpreted as enjoining the

administrative agency considering those claims from

granting backpay or restoring lost seniority. Castro v.

Beecher, 522 F. Supp. 873, 878 (D. Mass. 1981). Never-

theless, this Court remanded for consideration of moot-

ness, 51 U.S.L.W. 4566, and the First Circuit dismissed

the appeal as moot. Boston Chapter, NAACP v. Beecher,

No. 81-1642, slip op. (1st Cir. Aug. 31, 1983). The pres-

ent case is much more clearly moot.*

the preliminary injunction, and “{a] party injured by the issuance

of an injunction later determined to be erroneous has no action for

damages in the absence of a bond.” W.R. Grace & Co. v. Local Union

759, supra, 51 U.S.L.W. at 4646 n.14.

®In the Boston Firefighters case, the laid-off policemen and fire-

fighters were reinstated pursuant to a newly enacted state statute.

As this Court explained, that statute “provid[ed] the City of Boston

with new revenues, require[d] reinstatement of al! police and fire-

fighters laid off during the reductions in force, secur[ed] these

personnel against future layoffs for fiscal reasons, and requir[ed]

the maintenance of minimum staffing levels in the police and fire

departments through June 30, 1983.” 51 U.S.L.W. 4566. In the

instant case, the City was able to reinstate all laid-off or demoted

firefighters prior to expiration of their recall rights due to a tax

increase and attrition within the Fire Department.

Unlike petitioners (Joint Opp. at 2-6), we perceive no feature in

the Massachusetts statute that supports mootness in that case but

not this one. Certainly the minimum staffing requirement provided

no significant protection against recurrence of the controversy—

that requirement expired six weeks after this Court’s remand for

10

C. The Expired Preliminary Injunction Is Not Justi-

ciable As An Order “Capable of Repetition, Yet

Evading Review”

Ordinarily a case is moot if the parties lack a legally

cognizable interest in its outcome, but the decisions of

this Court recognize an exception to this rule for cases

that are “capable of repetition, yet evading review.”

Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515

(1911). This exception is limited to cases satisfying two

requirements: (1) there is a “reasonable expectation” or

a “demonstrated probability” that the same complaining

party will again be subjected to the challenged action;

and (2) the challenged action is by its nature too short

to be fully litigated prior to its cessation or expiration.

Murphy v. Hunt, supra, 455 U.S. at 482; Illinois State

Board of Elections v. Socialist Workers Party, 440 U.S.

173, 187 (1979); Weinstein v. Bradford, 423 U.S. 147,

149 (1975) (per curiam). Contrary to petitioners’ sug-

gestion, Joint Opp. at 6, neither of the exception’s re-

quirements is met in this case.’

consideration of mootness. Moreover, while the statute protected

specific individuals from future layoffs, it did not prevent the

Boston Police and Fire Departments from laying off other individ-

uals; and in making such layoffs, the Departments were perma-

nently enjoined from reducing the percentage of minority officers

below specified levels.

7 Petitioners and the United States also assert that this case is

not moot unless respondents satisfy the “heavy burden” of estab-

lishing (1) that there is no reasonable expectation that the en-

joined conduct will recur and (2) that interim relief or events have

completely eradicated the effects of the alleged violation. Joint Opp.

at 3-5; Brief for United States as Amicus Curiae at 7-8 n.1l. As

support for this argument, they cite United States v. W.T. Grant

Co., 345 U.S. 629 (1953), and County of Los Angeles v. Davis, 440

U.S. 625, 631 (1979). Those cases stand for the proposition that a

court should be reluctant to conclude that a case is moot where the

defendant has voluntarily ceased the allegedly illegal conduct, pos-

sibly in order to defeat judicial review. Those cases and the test

they apply in order to determine whether the plaintiffs continue to

have a need for judicial relief are quite inapposite here. The plain-

tiffs, respondents here, have irrevocably received all the relief they

11

1. There is no “reasonable expectation” or “demon-

strated probability” that the petitioners will again be

subjected to the challenged injunctive relief. The layoffs

of municipal employees announced by the City in May

1981 were the first such layoffs in the history of Mem-

phis. Pet. App. A73; Pet. App. A8. This fact alone casts

doubt on any claim that there is a “reasonable expecta-

tion” or “demonstrated probability” of future layoffs.

.» See Illinois State Board of Elections vy. Socialist Workers

\ Party, supra, 440 U.S. at 187-88.

\

) Even if Memphis does lay off City employees in the

~ future, few if any Fire Department personnel are apt

to be affected. The Mayor testified that the Fire Depart-

ment was selected for reduction in 1981 because of a

then-recent study showing that Memphis was devoting

a much higher percentage of its total budget to fire pro-

tection than other cities of comparable size. J.A. 36-37.

Now that the City has brought the Fire Department’s

budget into line, it is unlikely to target its workforce for

reduction in the future.

Most important, even if firefighters are laid off in the

future, the petitioners are unlikely to be subjected to

injunctive relief such as that challenged here. While

seniority-based layoffs would have had a significantly

disproportionate effect on black firefighters in May 1981,

the disproportionate impact of a seniority-based layoff

policy will dissipate as existing black firefighters gain

more seniority and other black firefighters are hired or

promoted pursuant to the consent decree. Thus, given the

passage of time and even modest progress toward attain-

ment of the goals of the consent decree, “such extraordi-

nary relief as that contained in the Order here appealed

* * * will, in all probability, be unnecessary.” Western

requested and they garnered that relief not through the defendants’

“voluntary cessation” but by court order. See DeF unis v. Odegaard,

416 U.S. 312, 318 (1974) (per curiam).

12

Addition Community Organization v. Alioto, 514 F.2d

542, 544 (9th Cir.) (per curiam), cert. denied, 423 U.S.

1014 (1975) (a case also involving temporary race-

conscious relief against a fire department).

2. The “capable of repetition, yet evading review” doc-

trine is limited te controversies that, by their very nature,

are unlikely te remain alive long enough to be defini-

tively settled by the courts. Richmond Newspapers, Inc.

v. Virginia, 448 U.S. 555, 563 (1980) (opinion of Bur-

ger, C.J.); Kremens v. Bartley, 431 U.S. 119, 133

(1977) ; DeFunis v. Odegaard, supra, 416 U.S. at 319;

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

126 (1974). The preliminary injunction at issue here is

not such an inherently transitory order that it would

typically evade full appellate review.

It was purely fortuitous that all previously laid-off

employees were restored to their former positions prior

to this Court’s review of the controversy. The petitions

for certiorari were filed on August 4, 1982; the last

demoted or laid-off firefighter was restored to his position

in June 1983. Only because this Court withheld ruling on

the petitions pending disposition of Boston Firefighters

Union, supra, did this controversy become moot prior to

a decision on the merits by this Court. It was also fortui-

tous that attrition and retirement within the Fire De-

partment permitted recall of all the laid-off employees

prior to expiration of their 2-year recall rights (J.A.

88-89), thus mooting the issue of the correctness of the

injunction. The instant case is moot because of these

specific circumstances, not because the controversy is

inherently evasive of review.

13

IL THE PRELIMINARY INJUNCTION WAS AN AP-

PROPRIATE EXERCISE OF THE DISTRICT

COURT’S INHERENT AUTHORITY TO MODIFY

A CONSENT DECREE TO EFFECTUATE ITS PUR-

POSE IN LIGHT OF CHANGED CIRCUMSTANCES

A. The Preliminary Injunction Does Not Rest Upon

the District Court’s Remedial Authority Under

Title VII But Rather Upon Its Inherent Authority

to Modify the Original Consent Decree so as to

Effectuate Its Basic Purpose

Petitioners and their supporting amici argue at length

that the preliminary injunction, by awarding race-

conscious relief to black firefighters who had not estab-

lished that they were individual victims of discrimina-

tion, exceeded the district court’s remedial authority un-

der Title VII, specifically §§ 703(h), 703(j), and 706(g).

Their arguments rest on an untenable premise—that if

authority for issuance of the preliminary injunction

exists, it necessarily derives from Title VII.

1. This Court has frequently recognized the “inherent”

“power of a court of equity to modify an injunction in

adaptation to changed conditions though it was entered

by consent.” United States v. Swift & Co., 286 U.S. 106,

114 (1932). See also Arizona v. California, 51 U.S.L.W.

4325, 4330 (U.S. Mar. 30, 1983); Pasadena City Bd.

of Educ. v. Spangler, 427 U.S. 424, 437 (1976); United

States v. United Shoe Machinery Corp., 391 U.S. 244,

251 (1968); Chrysler Corp. v. United States, 316 U.S.

556, 562 (1942). “The source of the power to modify is

of course the fact that an injunction often requires con-

tinuing supervision by the issuing court and always a

continuing willingness to apply its powers and processes

on behalf of the party who obtained that equitable re-

lief.” System Federation No. 91 v. Wright, 364 U.S.

642, 647 (1961). In this case, authority to modify the

consent decree was also reserved by its terms. Paragraph

17 of the decree provides: “The Court retains jurisdic-

tion of this action for such further orders as may be

14

necessary or appropriate to effectuate the purposes of

this decree.” Pet. App. A69.

Respondents’ application for a preliminary injunction

was not based on any allegation that the City’s proposed

layoffs violated Title VII. It was an appeal to the district

court’s discretion to effectuate the consent decree. J.A.

20-22. And the district court proceeded on that under-

standing. For example, the court opened the preliminary

injunction hearing with the observation that the issue for

its determination was whether the City’s proposed layoffs

amounted to changed circumstances that would per-

petuate discrimination which the consent decree was in-

tended to avoid. J.A. 30. Thus, petitioners’ arguments

regarding the scope of judicial authority to remedy viola-

tions of Title VII misconceive the basis for the district

court’s ruling.

2. Petitioners and the United States deny the exist-

ence of the district court’s inherent and expressly re-

tained authority to modify the consent decree to ef-

fectuate its purpose. They maintain that the district

court’s authority to modify the consent decree derives

solely from the statute that the decree is intended to en-

force, Title VII. In their view, the district court’s reme-

dial authority to issue the preliminary injunction “is the

same as if the case had gone to a final, litigated judg-

ment” under Title VII. United States Br. at 12 & n.13.

See Union Br. at 20; City Br. at 23. That contention is

unsupportable.

In its simple form, petitioners’ Title VII argument is

this: the preliminary injunction violates Title VII be-

cause it grants relief against an employer who has not

been adjudged to have violated Title VII. Union Br. at

26; City Br. at 22-23. This contention is wholly without

merit. It goes without saying that Title VII does not au-

thorize a court to order relief against an employer who

has not violated Title VII. But the basis for the pre-

liminary injunction was not a new violation of Title VII;

that injunction was designed to effectuate the basic pur-

15

pose of the consent decree in light of changed circum-

stances. See Chrysler Corp. v. United States, supra, 316

U.S. at 562; cf. Wright v. Council of the City of Em-

poria, 407 U.S 451, 459 (1972). This version of peti-

tioners’ argument rests on the notion that a consent

decree settling a Title VII case can grant no relief to the

plaintiff unless it contains an admission of liability by

the defendant. Few if any Title VII cases would be

settled if that were the law.

In an alternative formulation, petitioners’ Title VII

argument is that §§ 703(h), 703(j), and 706(g) preclude

a federal court from awarding race-conscious relief

against an employer who has violated Title VII. In their

view, the only affirmative relief authorized by Title VII

is “rightful place” remediation for proven victims of the

employer’s discrimination; such identified victims may be

awarded the backpay and seniority that would have been

theirs but for the employer’s unlawful discrimination.

In Part III we show that this is an erroneously restric-

tive view of judicial authority to remedy violations of

Title VII. But whatever the merit of petitioners’ argu-

ment in a litigated Title VII case, it should not be ac-

cepted as a limitation on the federal court’s inherent au-

thority to approve a consent decree or to modify such a

decree to achieve its basic purpose."

* Contrary to the majority opinion of the court of appeals (679

F.2d at 551-56; Pet. App. Al2-A23), the validity of the 1980 con-

sent decree was not put in issue by respondents’ request for a pre-

liminary injunction effectuating that decree. A request for modifi-

cation of a consent decree, whether by the defendant on the ground

that continued operation of the decree is inequitable, or by the

plaintiff on the ground that modification is necessary to effectuate

the decree’s basic purpose, provides no warrant for impeaching the

original decree’s validity. United States v. Swift & Co., 286 U.S.

106, 119 (1932). See Arizona Vv. California, 51 U.S.L.W. 4325, 4330

(U.S. Mar. 30, 1983) ; Pasadena City Bd. of Educ. v. Spangler, 427

U.S. 424, 482 (1976) ; Chrysler Corp. v. United States, 316 U.S. 556,

562 (1942); EEOC v. Safeway Stores, Inc., 611 F.2d 795, 799-80

(10th Cir. 1979). Thus, the validity ot the relief contained in the

consent decree, such as hiring and promotion ratios, is not at issue

here.

16

This Court’s decisions establish that a federal court

may approve a consent decree or modify a consent decree

to effectuate its basic purpose without making the specific

factual determinations that would be necessary to sup-

port the same relief in a litigated case, and without

stopping to inquire whether the defendant could have

successfully opposed such relief at trial. Swift & Co. Vv.

United States, 276 U.S. 311, 325-27, 329-30 (1928);

United States v. Swift & Co., 286 U.S. 106, 116-117

(1932); Chrysler Corp. v. United States, supra; Pacific

R.R. v. Ketchum, 101 U.S. 289, 297 (1880). See also

Walling v. Miller, 138 F.2d 629 (8th Cir. 1943), cert.

denied, 321 U.S. 784 (1944).° These principles have fre-

quently been applied in employment discrimination cases.

E.g., Moore v. City of San Jose, 615 F.2d 1265, 1271-72

(9th Cir. 1980) ; EEOC v. Safeway Stores, Inc., 611 F.2d

795, 799 (10th Cir. 1979), cert. denied, 446 U.S. 952

(1980): Airline Stewards & Stewardesses Ass’n, Local

550 v. American Airlines, Inc., 573 F.2d 960, 963-64 (7th

Cir.), cert. denied, 439 U.S. 876 (1978); Carson V.

American Brands, Inc., 654 F.2d 300 (4th Cir. 1981)

(en banc), adopting 606 F.2d 420, 425, 431 (Winter, J.,

® There are of course limitations on a federal court’s inherent

authority to modify a consent decree to effectuate its purpose. Es-

sentially, these limitations are the same as those that exist on the

court’s authority to approve a consent decree; if the court could not

have lawfully approved the corsent decree had it contained the

proposed modification, the court should not grant the modification.

There are three such limitations. The court must have subject mat-

ter jurisdiction over the case. Pacific R.R. v. Ketchum, supra, 101

U.S. at 297. The parties cannot by consent deprive third parties

of their substantive rights. Society Hill C’vie Ass'n v. Harris, 632

F.2d 1045, 1059 (3d Cir. 1980). And there must be no applicable

statutory restriction on the federal coi .s’ inherent authority to ap-

prove or modify a consent decree. The district court’s preliminary

injunction exceeds none of these limitations. It had subject matter

jurisdiction over the lawsuit. As discussed below, its order does not

deprive third parties of any substantive rights. See p. 18. And the

provisions of Title VII relied upon by petitioners do not restrict

inherent judicial authority to approve or modify a consent decree.

See pp. 19-20.

17

dissenting). Indeed, the principles apply with special

force to Title VII cases, for in enacting that title “Con-

gress expressed a strong preference for encouraging vol-

untary settlement of employment discrimination claims.”

Carson V. American Brands, Inc., 450 U.S. 79, 88 n.14

(1981); see Alexander v. Gardner-Denver Co., 415 U.S.

36, 44 (1974).

Thus, the City should not be lL.eard to say that respond-

ents are not victims of discrimination. The original

Stotts class action was brought on behalf of victims of

the City’s allegedly discriminatory hiring and promo-

tional practices. J.A. 9-10. Had the case been tried,

respondents might have established their entitlement to

backpay, constructive seniority and promotion. But the

case was settled and the City relinquished its right to

litigate the issue of discrimination in exchange for avoid-

ing the consequences of a judicial finding of discrimina-

tion and judicial identification of the victims of that dis-

crimination. In short, petitioners’ argument that the

preliminary injunction exceeded the district court’s reme-

dial authority under Title VII rests on the notion that

the factual] disputes composed by the consent decree must

now be resolved in their favor."”

Nothing in System Federation No. 91 Vv. Wright, supra, relied

upon by petitioners, conflicts with the principle that a federal court

has inherent authority to modify a consent decree to fulfill its pur-

pose. That case involved a union that, at a time when the Railway

Labor Act prohibited union shop agreements, acceded to a consent

decree that prohibited it from entering into union shop contracts.

The Railway Labor Act was subsequently amended to permit union

shop agreements and the union moved for prospective modification

of the decree to permit it to negotiate for such an agreement. This

Court held that the requested modification should be granted. The

Court reasoned that the union’s consent should be “read as di-

rected toward events as they then were” and that continuation of

the prohibition would be inequitable and inconsistent with the ob-

jectives of the amended Railway Labor Act. 364 U.S. at 647, 651-53.

Nothing in the Court’s opinion even faintly suggests that a consent

decree may not be modified to effectuate its basic purpose unless the

court could award such relief in a case litigated to judgment on the

same incomplete factual record.

18

8. Amicus curiae AFL-CIO makes a slightly different

argument. Brief for AFL-CIO as Amicus Curiae in

Support of Petitioners at 2-3. The AFL-CIO assumes

arguendo that a defendant may be able to consent to in-

junctive relief against it that could not have been forced

upon the defendant in a judgment on the merits, and that

such a decree may be modified to achieve its purpose.

But AFL-CIO insists that a defendant’s consent surely

does not increase the court’s authority to grant relief that

inflicts injury on non-consenting parties. Jd. at 3.

The AFL-CIO’s interesting argument is beside the

point because the district court’s preliminary injunction

did not inflict injury on third parties. That order sim-

ply required the City not to take action that would have

vitiated the progress attained under the consent decree;

it certainly did not require the City to lay off white fire-

fighters."' Indeed, Judge McRae declined to express a

view on whether the City would be violating the con-

tractual rights of white firefighters if the City chose to

go forward with the layoffs in the Fire Department.

Pet. App. A76, A78. Under these circumstances, this

Court’s decision in W.R. Grace & Co. v. Local Union 759,

51 U.S.L.W. 4643 (U.S. May 31, 1983), provides the cor-

rect analysis of the situation. When an employer lays off

white employees instead of black employees who are pro-

tected by a consent decree, the employer is shifting the

burdens it has assumed to redress prior discrimination to

its white employees. If such a reallocation abridges the

rights of the white employees, they should look to the

employer for relief.”

1! The City was free to forego any layoffs in the Fire Department

and to reduce expenditures to the extent deemed necessary in other

ways. For example, the City might have reduced the work week and

salaries of all firefighters.

12 Concurring Judge Martin made this point. 679 F.2d at 568-69;

Pet. App. A47-50. The majority opinion of Judge Bailey Brown in

Brown Vv. Neeb, 644 F.2d 551, 564-66 (6th Cir. 1981), a case quite

similar to the instant one, also rests on this basis.

19

4. If Congress expresses an intention to restrict the

federal court’s inherent authority to modify a consent

decree to effectuate ‘ts basic purpose, that intention must

no doubt be respected. But there is not a hint of such an

intention in the provisions of Title VII relied upon by

petitioners.

Section 703(j) provides that nothing in Title VII shall

be interpreted to “require” an employer to grant prefer-

ential treatment to any racial group “on account of” a

racial imbalance in the employer’s workforce. See Steel-

workers Vv. Weber, 443 U.S. 193, 205-07 (1979); Team-

sters Vv. United States, 431 U.S. 324, 374 n.61 (1977).

This provision does not purport to limit a court’s reme-

dial authority to redress a violation of any substantive

provision of Title VII. Ass’n Against Discrimination in

Employment, Inc. v. Bridgeport, 647 F.2d 256, 280-81

(2d Cir. 1981), cert. denied, 455 U.S. 988 (1982).

A fortiori, the section cannot be read as limiting a court’s

inherent authority to modify a consent decree composing

a dispute arising under Title VII.

Section 703(h) provides that it is not a violation of

Title VII for an employer to apply a bona fide seniority

system. See Franks v. Bowman Transp. Co., 424 U.S.

747, 761 (1976). Like § 703(j), this provision does not

limit remedial authority to redress violations of Title VII.

As this Court has recognized, “[{t]here is no indication in

the iegislative materials that § 703(h) was intended to

modify or restrict relief otherwise appropriate once an

illegal discriminatory practice” is found. Jd. at 761-62.

A fortiori, the provision is not a limitation on a court’s

inherent authority to modify a consent decree.

Section 706(g) is the remedial] provision of Title VII.

It sets forth the judicial] remedies available to a plaintiff

who has established the defendant’s liability under § 703.

The first sentence of §706(g) provides for judicial

remedies “[i]f the court finds that the respondent has

intentionally engaged in or is intentionally engaging in

an unlawful employment practice charged in the com-

20

plaint. * * *” 42 U.S.C. § 2000e-5(g). The last sentence

of § 706(g)—the provision upon which petitioners rely—

must be read in context as a limitation on the authority

granted by the first sentence. It provides that “{n]o order

of the court shall require” the hiring, reinstatement or

promotion of an individual, or the payment to him of any

back pay, “if such individual * * * was refused employ-

ment or advancement or was suspended or discharged for

any reason other than discrimination on account of race,

color, religion, sex, or national origin. * * *” This provi-

sion addresses the case where the plaintiff has established

a violation of Title VII, but the employer can neverthe-

less defeat judicial relief for that individual by showing

that the plaintiff would not have received the job, promo-

tion or reinstatement even in the absence of discrimina-

tion—that is, that a lawful reason justified the adverse

employment decision. Day v. Mathews, 530 F.2d 1083,

1085 & n.2 (D.C. Cir. 1976); Patterson v. Greenwood

School Dist. 50, 696 F.2d 293, 295 (4th Cir. 1982) ; King

v. Laborers Int'l Union, Local No. 818, 443 F.2d 273,

278-79 (6th Cir. 1971). See Brodin, The Standard of

Causation in the Mixed-Motive Title VII Action: A Social

Policy Perspective, 82 Colum. L. Rev. 292 (1982). Thus,

the last sentence of § 706(g) is expressly limited to cases

where the court finds that the individual suffered the ad-

verse employment decision for a reason other than dis-

crimination. Such a finding, as well as the initial deter-

mination that the employer had violated Title VII, would

be made only in a Title VII case litigated to judgment.

The provision accordingly has no application to the

court’s authority to approve a consent decree settling a

case, or to the court’s authority to modify a consent

decree to effectuate its purpose.

B. The District Court Did Not Abuse Its Discretion

In Issuing the Preliminary Injunction

Having put aside petitioners’ inapposite Title VII

arguments, it remains to determine whether the district

court’s preliminary injunction was an appropriate exer-

21

cise of the district court’s inherent authority to modify

the consent decree.

1. The test for ruling on a plaintiff’s request for modi-

fication of a consent decree is “whether the change

serve(s] to effectuate * * * the basic purpose of the orig-

inal consent decree.” Chrysler Corp. v. United States, 316

U.S. 556, 562 (1942). If unanticipated circumstances

threaten to prevent the decree from achieving its pur-

pose, the decree should be modified to avoid that frustra-

tion of purpose. /d.; United States v. United Shoe Ma-

chinery Corp., 391 U.S. 244, 248-49 (1968); Columbia

Artists Management, Inc. v. United States, 381 U.S. 348

(1965) (per curiam); Liquid Carbonic Corp. v. United

States, 350 U.S. 869 (1955), rev’g 123 F. Supp. 653

(E.D.N.Y. 1954); United States v. International Har-

vester Co., 274 U.S. 693, 702-04 (1927)."

Notwithstanding these authorities, petitioners argue

that a consent decree can be judicially modified only upon

a “clear showing of grievous wrong evoked by new and

unforeseen conditions.” Union Br. at 18 and City Br. at

18-19, both quoting United States v. Swift & Co., 286

U.S. 106, 119 (1932). But as this Court made clear

in United Shoe Machinery Corp., supra, the “grievous

wrong” language of Swift must be read in the context of

Swift’s holding that a decree “may not be changed in

the interest of the defendants if the purposes of the liti-

18 The lower courts apply the test for modification stated in the

text. E.g., Ass’n Against Discrimination vy. Bridgeport, 710 F.2d 69,

74 (2d Cir. 1983); Brown v. Neeb, 644 F.2d 551, 565 (6th Cir.

1981); Exxon Corp. Vv. Texas Motor Exchange, 628 F.2d 500, 503

(5th Cir. 1980) ; Evans v. Buchanan, 512 F. Supp. 839, 849 (D.Del.

1981). The commentators also recognize it. E.g., 11 C. Wright &

A. Miller, Federal Practice & Procedure § 2961, p. 604 (1973)

(United Shoe indicates that “modification is proper if the original

purposes of the injunction are not being fulfilled in any material

respect”); A. Larson, Employment Discrimination § 54.41, p. 11-

84.32 (1983) (“If the consent decree is not achieving its purpose,

as indicated by events subsequent to entry of the decree, the plain-

tiff may obtain a modification upon showing the failure of the

agreed remedy” ).

22

gation as incorporated in the decree * * * have not been

fully achieved.” 391 U.S. at 248. The “grievous wrong”

test is not applicable in the obverse situation, where the

plaintiff seeks modification of a decree to effectuate its

purpose. Jd. at 249-52."*

2. This Court has recognized that “there must be wide

discretion in the District Court” to assess whether changed

circumstances justify modification of a consent decree.

System Federation No. 91 v. Wright, supra, 364 U.S. at

648. Such broad discretion is particularly appropriate

where, as here, a district court does not render a per-

manent, facial modification to a decree but rather grants

temporary injunctive relief to prevent frustration of a

decree’s purpose. See 679 F.2d at 678; Pet. App. A46-47

(Martin, J., concurring) ; Brown v. Neeb, supra, 644 F.2d

at 565. See generally Brown v. Chote, 411 U.S. 452,

457 (1973) ; Alabama v. United States, 279 U.S. 229, 231

(1929).

The task before the district court was to determine

whether the City’s proposed layoffs would frustrate the

purpose of the consent decree. Since a consent decree

represents a compromise, its purposes are those “em-

bodied in the instrument rather than the maximum

aspirations—which are bound to be inconsistent anyway

—of the interested parties.” White v. Roughton, 689

14 Contrary to petitioners’ contention, the district court’s pre-

liminary injunction is not inconsistent with the rule of United

States v. Armour & Co., 402 U.S. 673 (1971), United States v.

Atlantic Refining Co., 360 U.S. 19 (1959), and Hughes v. United

States, 342 U.S. 353 (1952). Those cases hold that a court should

23

F.2d 118, 119-20 (7th Cir. 1982), cert. denied, 103 S.Ct.

1524 (1983). Accord, United States v. Armour & Co.,

402 U.S. 673, 681-82 (1971).

The decree at issue here provides that its purpose is

“to insure that any disadvantage to minorities that may

have resulted from past hiring and promotional practices

be remedied so that equal employment opportunity will

be provided to all.” Pet. App. A59-A60. In the same

vein, the decree states that “[t]he purpose of this decree

is to remedy the past hiring and promotion practices of

the Memphis Fire Department. * * *” Pet. App. A64-65.

Toward these ends, the decree establishes as a long

term goal the raising of “black representation [in] each

job classification in the fire department to levels approxi-

mating the black proportion of the civilian labor force in

Shelby County.” Pet. App. A64. Moreover, “[t]o insure

as quickly as practicable the attainment of [this] long

range goal,” the decree establishes interim race-conscious

hiring and promotion ratios to be met on an annual basis.

Pet. App. A64-65. The decree is silent on layoffs, as the

parties did not anticipate this possibility. Pet. App. A73.

The stated purposes and remedial provisions of the

decree fully support the district court’s conclusion that

the decree’s purpose is “hiring and promotion” to over-

come the present and continuing effects of racial dis-

crimination in the Fire Department. Pet. App. A74.

This purpose is to be achieved by adherence to concrete

goals and ratios that assure prompt and ongoing correc-

tion of a condition—the extreme underrepresentation of

blacks—caused by the Department’s former policy of

racial exclusivity. In sum, as the District Judge who

entered the decree recognized, it reflects a firm commit-

ment to continuous, incremental progress in eliminating

the condition of gross discriminatory underrepresentation

of blacks at all levels of the Fire Department.”

18 Though well-supported, this conclusion was necessarily pre-

liminary since the preliminary injunction hearing was not conaoli-

24

Judge McRae also reasonably concluded, on the basis

of the limited record developed at. the preliminary injunc-

tion hearing, that the City’s proposed layoffs would vitiate

that commitment. Pet. App. A74-75. He found that ap-

plication of a seniority-based layoff policy in the Fire

Department so soon after the City had made modest

strides in promoting and hiring blacks within the Fire

Department would frustrate the consent decree’s purpose.

Pet. App. A73-75. That determination, grounded on find-

ings that are well supported and certainly not clearly

erroneous, was well within Judge McRae’s discretion.

Moreover, as the Court of Appeals recognized, the pre-

liminary injunction is also supported by the need to pre-

vent irreparable harm to minority firefighters and by the

public interest in preserving the progress made in re-

dressing and eliminating discrimination within the Mem-

phis Fire Department. 679 F.2d at 560; Pet. App. A31.

Ill. THE FEDERAL COURTS ARE AUTHORIZED TO

GRANT RACE-CONSCIOUS AFFIRMATIVE RE-

LIEF UNDER TITLE VII

We have shown that petitioners’ contention that the

preliminary injunction exceeds the limits of remediai

authority under Title VII is inapposite because that

order rests on the district court’s inherent authority to

modify a consent decree. We now show that petitioners

are wrong in contending that the remedial provision of

Title VII, § 706(g), does not authorize race-conscious

relief.**

dated with trial on the merits, as provided for in Fed.R.Civ.P.

65(a)(1). Petitioners could have chosen to challenge this conclu-

sion before the district court and could have presented evidence to

support a contrary view of the decree’s purpose. See United States

v. ITT Continental Baking Co., supra, 420 U.S. at 238. They opted

not to do so, and instead appealed the preliminary injunction.

1 Petitioners also rely on § 703(h) and § 708(j), but neither of

those provisions speaks to, much less limits, the judicial remedies

available to correct violations of Title VII. See p. 19, supra.

25

The first sentence of § 706(g) confers broad authority

on the federal courts to remedy unlawful employment

practices :

“If the court finds that the respondent has inten-

tionally 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,

which may include, but is not limited to, reinstate-

ment or hiring of employees, with or without back

pay * * *, or any other equitable relief as the court

deems appropriate.” 42 U.S.C. § 2000e-5(g) (em-

phases supplied).

Thus, § 706(g) authorizes such relief as deemed “ap-

propriate.” Of course, judicial remedial discretion must

be exercised in conformity with the purposes of Title VII.

Teamsters v. United States, 431 U.S. 324, 364 (1977);

Albemarle Paper Co. v. Moody, 422 U.S. 405, 415-18

(1975). But where an employer has systematically dis-

criminated against blacks in hiring and promotions, race-

conscious relief well serves Title VII’s primary purpose:

“to achieve equal employment opportunity and to remove

the barriers that have operated to favor white male em-

ployees over other employees.” Teamsters v. United

States, supra, 431 U.S. at 364. In such a case, race-

_ conscious relief may be essential “to eliminate, so far as

possible, the last vestiges” of the employer’s discrimina-

tory practices. Albemarle Paper Co. v. Moody, supra, 422

U.S. at 417.

In the present case, the current effects of discrimina-

tion—the gross underrepresentation of blacks in the Fire

Department—could not be cured by offering established

victims of discrimination their “rightful place” in the

Department. Even if such victims could be identified,

many will have gone on to other employment and be un-

interested in joining the Fire Department. Moreover,

when a governmental agency systematically excludes a

racial minority from employment in all or some of its

26

public jobs, the victims of that discrimination are not

limited to identifiable members of the minority group

who actually applied for or were demonstrably deterred

from applying for the off-limits jobs. Here, the City of

Memphis had maintained a uniracial firefighting force.

For this reason, most black Memphians would not even

have considered firefighting as a possible occupation for

them. Thus, petitioners’ proposed dichotomy between vic-

tims and non-victims is illusory where the employer’s

pervasive racial discrimination is manifest. That dichot-

omy, if adopted, would prevent effective redress of mani-

fest discrimination and would lock in the effects of such

discrimination. For these reasons, the courts of appeals

are unanimous in recognizing that affirmative race-

conscious relief such as hiring and promotion goals is

“appropriate” within the meaning of § 706(g).'’ The dis-

17 E.g., Thompson V. Sawyer, 678 F.2d 257, 294 (D.C. Cir. 1982);

Boston Chapter, NAACP v. Beecher, 504 F.2d 1017, 1027-28 (ist

Cir. 1974), cert. denied, 421 U.S. 910 (1975); Rios v. Enterprise

Ass'n Steamfitters Local 638, 501 F.2d 622, 629 (2d Cir. 1974);

EEOC Vv. A.T.&T. Co., 556 F.2d 167, 174-77 (3d Cir. 1977), cert.

denied, 438 U.S. 915 (1978); Chisholm v. United States Postal

Service, 655 F.2d 482, 499 (4th Cir. 1981); United States v. City

of Alexandria, 614 F.2d 1358, 1363-66 (5th Cir. 1980); Local 53,

Int'l Ass'n of Heat & Frost Insulators & Asbestos Wks. v. Vogler,

407 F.2d 1047, 1055 (5th Cir. 1969); United States v. 1.B.E.W.,

Local No. 88, 428 F.2d 144 (6th Cir.), cert. denied, 400 U.S. 943

(1970) ; United States v. City of Chicago, 663 F.2d 1354 (7th Cir.

1981) (en banc); Firefighters Inst. v. City of St. Louis, 616 F.2d

350, 364 (8th Cir. 1980), cert. denied, 452 U.S. 938 (1981) ; United

States v. Ironworkers Local 86, 443 F.2d 544, 553-54 (9th Cir.)

cert. denied, 404 U.S. 984 (1971); United States v. Lee Way Motor

Freight, Inc., 625 F.2d 918, 944 (10th Cir. 1979).

Contrary to the view of the amicus United States, this Court’s

decisions in Franks v. Bowman Transp. Co., 424 U.S. 747 (1976),

and Teamsters Vv. United States, 431 U.S. 324 (1977), are fully con-

sistent with the unanimous view of the circuits that race-conscious

relief is authorized by Title VII. Franks and Teamsters involved

the showing that a member of the plaintiff class must make to ob-

tain individual “rightful place” relief such as retroactive seniority.

They intimate no view on race-conscious relief.

27

trict court’s preliminary injunction—which simply pro-

hibited the City from conducting layoffs that would

vitiate the City’s hiring and promotional commitments

and did not require the layoff of white firefighters—is

likewise appropriate.

Contrary to petitioners’ contention, the last sentence of

§ 706(g) does not withdraw the broad authority to grant

race-conscious relief conferred by the first sentence. Un-

like the first sentence’s broad authorization of “any”

appropriate relief against a respondent found to have

violated Title VII, the last sentence’s limitation on judi-

cial orders applies only to individual relief: “No order

of the court shall require the * * * hiring, reimstatement,

or promotion of an individual as an employee, if such

individual was * * * refused employment or advancement

or was suspended or discharged for any reason other

than discrimination” in violation of Title VII. By its

terms, this provision merely precludes a court from

ordering that a specific individual be hired, promoted or

reinstated if the employer has refused to hire or pro-

mote that individual, or has discharged him, for non-

discriminatory reasons. See cases cited p. 20, supra.

Race-conscious remedies such as those embodied in the

original consent decree and the preliminary injunction

effectuating that decree, do not award individual relief.

They establish ratios and targets for overcoming dis-

crimination. Nothing in the preliminary injunction or

the consent decree precludes the Fire Department from

laying off, or declining to promote, any specific black

firefighter. Thus, those orders are fully consistent with

§ 706(g). See EEOC v. A.T.&T. Co., 556 F.2d 67, 174-77

(3d Cir. 1977), cert. denied, 438 U.S. 915 (1978).*

18 The last sentence of § 706(g), with its exclusive focus on in-

dividual relief, may be usefully contrasted with § 703(j), which

that Title VII does not “require” an employer “to grant

treatment to any individual or to any group” solely

employer's workforce is not racially balanced. This

i

28

The legislative history of Title VII of the Civil Rights

Act of 1964 confirms that the last sentence of § 706(g)

was intended merely to make clear that an individual

who was denied employment opportunities for reasons

other than discrimination does not have a remedy under

Title VII. 110 Cong. Rec. 2567 (Feb. 8, 1964) (remarks

of Rep. Celler, draftsmen of the last sentence of § 706

(g)); 110 Cong. Rec. 2568, 2570 (Feb. 8, 1964) (remarks

of Rep. Gill). Developments subsequent to 1964 only

strengthen that interpretation of § 706(g).

In the Equal Employment Opportunity Act of 1972,

Congress extended Title VII to government employees

and reenacted § 706(g) with amendments.” 86 Stat. 103,

107 (Mar. 24, 1972). Prior to passage of the 1972 legis-

lation Title VII had been consistently construed as au-

thorizing race-conscious ratios. E.g., United States v.

Ironworkers Local 86, 443 F.2d 544, 553-54 (9th Cir.),

cert. denied, 404 U.S. 984 (1971) (requiring admission

of specific percentages of minorities to apprenticeship

programs) ; Local 53, Int'l Ass’n of Heat & Frost In-

sulators & Asbestos Workers v. Vogler, 407 F.2d 1047,

1055 (5th Cir. 1969) (requiring union referral] of one

black worker for each white worker). In re-enacting

shows that if Congress had intended to proscribe race-conscious

remedies that benefit a group, it would have expressly said so.

Moreover, § 703(j), in providing that Title VII does not recvire

group preferences solely to redress racia] imbalance, strongly sug-

gests that race-conscious relief is available to remedy independent

violations of Title VII. See Steelworkers v. Weber, 443 U.S. 193,

205-06 (1979).

1% Specifically, § 706(g) was amended to clarify that ‘affirmative’

is “not limited to” orders granting backpay and reinstate-

ment, to make clear that a court may award “other equitable relief”

pay. 86 Stat. 103, 107. This expansion of the remedial language in

§ 706(g) is additional proof that Congress did not intend to limit

affirmative relief to individua “rightful place” relief.

§ 706(g¢), Congress ratified the prevailing judicial inter-

pretation of that provision. Lorillard v. Pons, 434 U.S.

575, 580-81 (1978). Indeed, a section-by-section analysis

accompanying the final version of the bill stated: “In any

area where the new law does not address itself, or in any

areas where a specific contrary intention is not indicated,

it was assumed that the present case law as developed by

the courts would continue to govern the applicability and

construction of Title VII.” Subcomm. on Labor of the

Senate Comm. on Labor and Public Welfare, Legislative

History of the Equal Employment Opportunity Act of

1972 (“1972 Leg. Hist.”), p. 1844. Moreover, Congress

rejected an amendment designed to overturn the prevail-

ing judicial interpretation that Title VII authorized

quota relief.”

Thus, Congress, in re-enacting and amending Title VII

in 1972, expressly endorsed the prevailing judicial view

that the remedial authority conferred by § 706(g) en-

compasses race-conscious affirmative action that may

benefit persons who are not proven victims of discrimina-

tion. United States v. Int’l Union of Elevator Construc-

tors Local Union No. 5, 538 F.2d 1012, 1019-20 (3d Cir.

1976) ; United States v. IBEW, Local No. 212, 472 F.2d

634, 636 (6th Cir. 1973); see Regents of the University

of California v. Bakke, 438 U.S. 265, 353 n.28 (1978)

(opinion of Brennan, White, Marshall & Blackmun, JJ.)

(“[e]xecutive, judicial, and congressional action subse-

quent to the passage of Title VII conclusively established

that the Title did not bar the remedial use of race”).”

CONCLUSION

For the reasons stated in Part I, the judgment of the

court of appeals should be vacated and the case remanded

with directions to dismiss as moot. Should this Court

reach the merits, the judgment of the court of appeals

should be affirmed.

Respectfully submitted,

FRED N. FISHMAN RICHARD M. SHARP *

Ropert H. Kapp JEFFREY C. MARTIN

Co-Chairmen Davi M. BRENNER

WILLIAM L. RoBINSON SHEA & GARDNER

LAWYERS’ COMMITTEE FOR 1800 Massachusetts Ave., N.W.

Crvit RIGHTs UNDER Law Washington, D.C. 20036

733 15th Street, N.W. (202) 828-2000

Washington, D.C. 20005

(202) 682-6700

Attorneys for Amicus Curiae

Lawyers’ Committee for Civil Rights Under Law

October 24, 1983 * Counsel of Record

21 Steelworkers v. Weber, 443 U.S. 193 (1979), holds that an em-

ployer may voluntarily implement remedial racial] ratios without

violating Title VII's prohibition against racial discrimination. In