Petition — Boston Firefighters Union, Local 718 v. Boston Chapter, N.A.A.C.P., Inc. Boston Police Patrolmen's Association Inc. v. Pedro Castro

FILED

538-885 NOV 28 1983

= - AL@A STEVAS,

In the — meng

Supreme Court of the United States.

Octoser Term, 1983.

BOSTON POLICE PATROLMEN’S

ASSOCIATION, INC.,

PETITIONER,

v.

PEDRO CASTRO, er AL.,

RESPONDENTS.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the First Circuit.

Frank J. McGez,*

Steven M. GuIney,

McGEz AND PHILLIPs,

1952 Ocean Street,

Marshfield, Massachusetts 02050.

(617) 834-4690

* Counsel of Record

[ Office - Supreme Court, U.S,

BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS

Question Presented.

Whether the petitioner’s claim that, as a result of the federal

district court’s unlawful modification of a prior remedial

order, which modification was affirmed on appeal to the

United States Court of Appeals for the First Circuit, certain

Boston police officers were suspended from employment in

violation of a valid state civil service statute, has become moot

as a result of the reinstatement of such officers even though the

effects of the alleged unlawful modification, such as the sus-

pended officers’ temporary loss of employment and pay, have

not been completely and irrevocably eradicated and there is no

reasonable expectation that the alleged violation will not

recur.

Table of Contents.

Opinions below

Jurisdiction

Constitutional provisions involved

Statement of the case

Reasons for granting the writ

I. The petitioner’s claim that, as a result of the Fed-

eral District Court’s unlawful modification of a

prior remedial order, which modification was af-

firmed on appeal to the United States Court of

Appeals for the First Circuit, certain Boston police

officers were suspended from their employment in

violation of a valid state civil service statute, has

not become moot as a result of the reinstatement

of such officers since the effects of the alleged un-

lawful modification, such as the suspended offi-

cers’ temporary loss of employment and pay, have

not been completely and irrevocably eradicated

and there is no reasonable expectation that the

alleged violation will not recur

Conclusion

Table of Authorities.

CASEs.

Carroll v. President and Commissioners of Princess

Anne, 393 U.S. 175 (1968)

Castro v. Beecher, 365 F. Supp. 655 (D. Mass. 1973)

County of Los Angeles v. Davis, 440 U.S. 625 (1979)

a ons ND =

12

10

3

5, 9, 11, 12

ii TABLE OF AUTHORITIES CITED.

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

Indiana Employment Security Div. v. Burney, 409 U.S.

540 (1973)

Powell v. McCormack, 395 U.S. 486 (1968)

SEC v. Medical Committee for Human Rights, 404 U.S.

403 (1972)

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

(1953)

Vermont Yankee Nuclear Power Corp. v. Natural Re-

sources Defense Council, Inc. 435 U.S. 519 (1978)

Walker v. Birmingham, 388 U.S. 307 (1967)

STATUTES.

28 USC § 1254 (1)

28 USC § 1651

Massachusetts General Laws, c. 31, § 39

1982 Mass. Acts, c. 190, § 25

United States Constitution

Tenth Amendment

1]

10

No. - .

In the

Supreme Court of the United States.

Octoser Term, 1983.

BOSTON POLICE PATROLMEN’S

ASSOCIATION, INC.,

PETITIONER,

v.

PEDRO CASTRO, Er AL.,

RESPONDENTS.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the First Circuit.

The petitioner, Boston Police Patrolmen’s Association, Inc..,

prays that a writ of certiorari issue to review the judgment of

the United States Court of Appeals for the First Circuit rend-

ered in these proceedings on August 31, 1983.

Opinions Below.

On remand from this Court for consideration of mootness,

the United States Court of Appeals for the First Circuit vacat-

ed the August 7, 1981 order of the United States District Court

for the District of Massachusetts and remanded the instant

proceedings to that court with instructions to dismiss as moot

the plaintiffs motion for modification.

2

The opinion and judgment of the Court of Appeals on the

question of mootness is not yet reported and appears in Appen-

dix A to this petition. The opinion and judgment of this Court,

vacating the original judgment of the Court of Appeals and

remanding for consideration of mootness, appears in Appendix

B and is reported at ___ U.S. ____, 76 L. Ed. 2d 330 (1983).

The original judgment of the Court of Appeals, affirming the

memorandum order and opinion of the District Court, ap-

pears in Appendix C and is reported at 679 F.2d 965 (Ist Cir.

1982). The memorandum order and opinion of the District

Court appears in Appendix D and is reported at 522 F. Supp.

873 (D. Mass. 1981).

Jurisdiction.

The opinion and judgment of the United States Court of Ap-

peals for the First Circuit (Appendix A, infra) was rendered on

August 31, 1983. The jurisdiction of this Court is invoked pur-

suant to 28 U.S.C. § 1254 (1).

Constitutional Provisions Involved.

CONSTITUTION OF THE UNITED STATES.

Amendment X.

The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are re-

served to the States respectively, or to the people.

3

Statement of the Case.

This litigation was commenced in 1970 by unsuccessful

black and hispanic candidates for appointment as Boston

police officers. Their claim was that because of racial discrim-

ination in the recruitment and certification procedures util-

ized by the city of Boston and the Massachusetts Civil Service

Commission, they were effectively denied employment as

police officers. The case was tried before Wyzanski, J., who

entered a judgment after which an appeal was taken to the

First Circuit. The Court of Appeals filed an opinion giving

directions for further proceedings.

On remand, the District Court approved and entered a con-

sent decree. Castro v. Beecher, 365 F. Supp. 655 (D. Mass.

1973).

In 1975, plaintiffs brought an action pursuant to the All

Writs Act, 28 U.S.C. § 1651. That action was assigned to

Chief Judge Caffrey, who has subsequently supervised all

aspects of the case to date.

On July 7, 1975, the District Court approved a consent de-

cree which was entered into by the parties as requested by the

court. That decree provided for the establishment of priority

certification groups for police applications, for an affirmative

action recruitment program for black and hispanic applica-

tions and for procedures for administration and reporting with

respect to police entrance examinations.

The District Court entered a supplemental consent decree in

July, 1976. Again, on July 1, 1979, the District Court ap-

proved and entered an agreement which provided for the con-

tinuing applicability of the method and ratios for certification

provided for by the 1975 decree and for further recruitment

activity and monitoring of the Civil Service examination.

As a result of the implementation of the District Court's

remedial orders, the representation of minorities in the Boston

4

Police Department increased from 2.3 percent in 1970 to 11.7

percent as of July 6, 1981.

Thereafter, on or about July 7, 1981, the Boston Police

Department commer ced a program of reductions in force of

uniformed officers due to a “lack of funds.” The program was

scheduled for completion on August 18, 1981. When com-

pleted, these reductions would have reduced minority repre-

sentation in the police force to 6.2 percent.

On April 6, 1981, plaintiffs moved to modify prior orders of

the District Court. Specifically, an order was sought preserv-

ing the current levels of minority ofticers in the Boston Police

Department.

The Boston Police Patrolmen’s Association was allowed to

intervene as a defendant on April 27, 1981. On August 7,

1981, the District Court issued a memorandum order and

opinion modifying its prior remedial decrees. 522 F. Supp.

873 (D. Mass. 1981).

The defendant intervenor filed a notice of appeal on or

about August 19, 1981.

On May 11, 1982, the United States Court of Appeals for the

First Circuit upheld the District Court’s August 7, 1981 orders

enjoining the Boston Police and Fire Departments from laying

off policemen and firefighters in a manner that would reduce

the percentage of minority officers below the level obtaining at

the commencement of layoffs in July, 1981. 679 F.2d 965

(1982). These orders had the effect of partially superseding

the operation of the state’s statutory last-hired, first-fired

scheme for civil service layoffs, Mass. Gen. Laws c. 31, § 39.

Following the Court of Appeals’ decision, Massachusetts en-

acted legislation providing the city of Boston with new reve-

nues, requiring reinstatement of all police and firefighters laid

off during the reductions in force, securing these personnel

against future layoffs for fiscal reasons, and requiring the

maintenance of minimum staffing levels in the police and fire

5

departments through June 30, 1983. See 1982 Mass. Acts,

c. 190, § 25. In light of these changed circumstances, this

Court on May 16, 1983, vacated the judgment of the Court of

Appeals and remanded for consideration of mootness in light

of 1982 Mass. Acts, c. 190, § 25.

On August 31, 1983, the Court of Appeals, on remand from

this Court, entered a judgment vacating the District Court's

order of August 7, 1981, and remanding the causes to that

court with directions to dismiss as moot the plaintiffs’ original

motion for modification.

Reasons for Granting the Writ.

I. THe Petrrioner’s CLAIM THAT, AS A RESULT OF THE FEDERAL

District Court’s UNLAWFUL MODIFICATION OF A Prior Re-

MEDIAL ORDER, WHICH MODIFICATION WAS AFFIRMED ON AP-

PEAL TO THE UNITED STATES Court OF APPEALS FOR THE F Inst

Cracurt, CERTAIN Boston POLice OFFICERS WERE SUSPENDED

FROM THEIR EMPLOYMENT IN VIOLATION OF A VALID STATE

Crvit Service STATUTE, HAS Not Become Moor as A RESULT

OF THE REINSTATEMENT OF SUCH OFFICERS SINCE THE EFFECTS

OF THE ALLEGED UNLAWFUL MODIFICATION, SUCH AS THE

SUSPENDED OrFicers’ TEMPORARY Loss OF EMPLOYMENT AND

Pay, HAVE Not BEEN COMPLETELY AND IRREVOCABLY ERapiI-

CATED AND THERE IS No REASONABLE EXPECTATION THAT THE

ALLEGED VIOLATION WILL Nort Recur.

In County of Los Angeles v. Davis, 440 U.S. 625 (1979), this

Court set forth the standard to be applied in determining

whether a case or controversy has become moot. In its deci-

sion, the Court stated:

6

“Simply stated, a case is moot when the issues present-

ed are no longer ‘live’ or the parties lack a legally cogniz-

able interest in the outcome.” Powell v. McCormack,

395 U.S. 486, 496 (1969). We recognize that, as a gen-

eral rule, “voluntary cessation of allegedly illegal conduct

does not deprive the tribunal of power to hear and deter-

mine the case, i.e., does not make the case moot.” United

States v. W.T. Grant Co., 345 U.S. 629, 632 (1953). But

jurisdiction, properly acquired, may abate if the case

becomes moot because

(1) it can be said with assurance that “there is no

reasonable expectation. . .” that the alleged violation

will recur, see id. at 633; see also SEC v. Medical Com-

mittee For Human Rights, 404 U.S. 403 (1972), and

(2) interim relief or events have completely and ir-

revocably eradicated the effects of the alleged violation.

See e.g., DeFunis v. Odegaard, 416 U.S. 312 (1974); In-

diana Employment Security Div. v. Burney, 409 U.S. 540

(1973).

When both conditions are satisfied it may be said that

the case is moot because neither party has a legally cog-

nizable interest in the final determination of the underly-

ing questions of fact and law.

The burden of demonstrating mootness “is a heavy

one.” See United States v. W.T. Grant Co., supra, at

632-633.

440 U.S. at 631.

In the instant case, respondents have failed to satisfy that

heavy burden. Respondents have failed to show that both

conditions are satisfied and that neither party has a legally

cognizable interest in the final determination of the underly-

ing questions of fact and law.

7

The instant case arises from a decision made in 1981 by the

city of Boston to lay off hundreds of firefighters and police of-

ficers in order to avoid an alleged financial crisis. By statute,

Massachusetts requires that civil service layoffs occur in the

order of reverse seniority. Mass. Gen. Laws c. 31, § 39. Many

minority members of Boston’s police and fire departments how-

ever, had been hired only recently pursuant to consent decrees

in which the city of Boston agreed to increase the proportion of

minorities in the departments in order to remedy its past dis-

criminatory hiring practices. As a result, layoffs under the stat-

utory last-hired, first-fired policy would have reduced signifi-

cantly the minority representation in the two departments.

Because of these changed circumstances, respondents thus

sought an order from the United States District Court for the

District of Massachusetts modifying the prior consent decrees.

Respondents claimed that application of the seniority statute

to the city’s reduction in force program would frustrate the

purpose of the prior consent decrees. The relief requested by

the respondents however, was not that the court merely enjoin

the city from reducing the percentage of minority representa-

tion in the police and fire departments. Rather, respondents

requested that the court order an alternate method of conduct-

ing the layoffs — one which would allow the city to lay off

senior non-minority firemen and police officers before junior

minority firemen and police officers notwithstanding the

state’s last-hired, first-fired statute.

Respondents’ request for relief was not opposed by the city.

Such relief, if granted, would not only benefit the respondents

but the city as well. The city’s primary interest was to lay off

a massive number of firemen and police officers in order to

avoid an alleged financial crisis. If the respondents had mere-

ly requested that the city be enjoined from reducing the per-

centage of minority representation in the fire and police

departments, the city, the effect, would have been precluded

8

by federal court order from laying off junior minority mem-

bers and would have been precluded by state law from laying

off senior non-minority members. Thus, the city would either

have had to employ another available means or method, other

than police and fire layoffs, to meet its alleged financial crisis

or suffer the consequences of violating state or federal law. By

requesting however, that the city be permitted to circumvent

state law, the respondents provided a way for the city to

implement its massive layoff program without federal or state

repercussions — albeit at the expense of senior non-minority

rather than junior minority, firemen and police officers. Thus,

the relief requested by the respondents did not adversely af-

fect, but rather benefitted, the interests of the city.

Such requested relief did however, adversely affect the in-

terests of senior non-minority members of the city’s police and

fire departments. Moreover, such relief, if granted, would

have the effect of superseding the operation of the state’s stat-

utory seniority scheme for civil service layoffs. Thus, the re-

spondents claim for relief was opposed by the state civil service

officials and the intervening police and fire unions. ‘ihe op-

posing parties contended that the relief requested by the re-

spondents, if granted, would constitute an impermissible and

unjustified intrusion by the federal court upon a valid state

statute. The opposing parties therefore requested that the

court deny the respondents’ claim for relief.

The case or controversy presented before the federal District

Court was thus whether the court had the power or authority

to supersede a valid state law and grant the respondents the

relief they requested. The United States District Court for the

District of Massachusetts decided that it had such power and

the United States Court of Appeals for the First Circuit af-

firmed. After the Court of Appeals decision, however, Massa-

chusetts enacted legislation providing the city of Boston with

new revenues, requiring it to reinstate all police officers and

9

firemen laid off during the city’s alleged fiscal crisis, and

securing those persons against future layoffs for fiscal reasons.

1982 Mass. Acts. c. 190, § 25 (hereinafter referred to as the

Tregor Act).

The relief provided by the Tregor Act, however, did not

completely and irrevocably eradicate the effects of the federal

District Court’s alleged unlawful preemption of the state’s

statutory seniority system. The Tregor Act merely provided

reinstatement of those firemen and police officers who were

laid off by the city in accordance with the federal District

Court's orders. The Tregor Act did not provide any relief or

compensation to those persons for the time period during

which they had been unlawfully laid off.

Moreover, it cannot be said with assurance that there is no

reasonable expectation that the alleged violation will recur.

Although the Tregor Act required the city to reinstate those of-

ficers who had been laid off in 1981 and prohibited the city

from laying off those officers in the future for lack of funds,

the Act only provided employment security until June 30,

1983, for those officers who had not been laid off in 1981.

Thus, after June 30, 1983, the city was and is currently free to

return to its old ways and in the event of such future layoffs, it

is not unreasonable to expect that without a dispositive ruling

by this Court on the legality of the federal District Court's

prior remedial orders, the federal District Court will again

unlawfully suspend state law and that senior non-minority

officers will again be unlawfully subjected to loss of employ-

ment and pay.

Thus, in the instant case, neither of the two conditions for

mootness set forth by this Court in County of Los Angeles v.

Davis, supra, have been satisfied. The Tregor Act has not

completely and irrevocably eradicated the effects of the

federal district court’s unlawful usurpation of power and it

cannot be said with assurance that there is no reasonable ex-

pectation that the alleged violation will recur.

10

The respondents profess however, that they no longer have

a personal stake in the proceeding. The fact that the respond-

ents were granted the relief they requested however, does not

moot the controversy. The controversy still remains as to

whether the federal District Court had the power or authority

to grant such relief in the first place.

As this Court stated in Carroll v. President and Commis-

sioners of Princess Anne, 393 U.S. 175, 179 (1968):

This conclusion — that the question is not moot and

ought to be adjudicated by this Court — is particularly

appropriate in view of this Court's decision in Walker v.

Birmingham, 388 U.S. 307 (1967). In that case, the

Court held that demonstrators who had proceeded with

their protest march in face of the prohibition of an in-

junctive order against such a march could not defend

contempt charges by asserting the unconstitutionality of

the injunction. The proper procedure, it was held, was

to seek judicial review of the injunction and not to dis-

obey it, no matter how well-founded their doubts might

be as to its validity. Petitioners have here pursued the

course indicated by Walker; and in view of the continu-

ing vitality of petitioners’ grievances, we cannot say that

their case is moot.

The state officials involved in the instant case have similarly

pursued the course indicated by Walker. Despite their doubts

as to the validity of the federal District Court's intrusion on the

state’s seniority statute, the state officials obeyed the court's

orders and sought judicial review. In view of the adverse ef-

fect which such orders had, and continue to have, on those

persons whom the state law was designed to protect, the state

officials have a genuine public interest in having the legality of

1]

the federal court’s action settled. This is especially true since

it appears that the legality or illegality of the federal court's ac-

tion will play a substantial role in the state officials’ response

as to whether those persons laid off in violation of the state’s

seniority statute are entitled to back pay and damages.

In County of Los Angeles v. Davis, supra. Mr. Justice

Powell, in his dissenting opinion joined by Mr. Chief Justice

Burger, stated:

Furthermore, the Court’s avoidance of the merits of

this controversy by its novel view of mootness leaves the

county in a quandary. Although it is not unreasonable to

assume, following dismissal of this suit as moot, that the

county will again base hiring on unvalidated aptitude

tests, it also is possible that the county may believe that

hiring procedures of the sort previously required by the

order under review are necessary to ensure compliance

with federal law. The Court's disposition today will

leave the decision of the Court of Appeals on the merits as

the most pertinent statement of the governing law, even

if that decision is not directly binding. Therefore, any

future litigation against the county, including the suit to

assert the rights of pre-1971 applicants that the Court

seems to contemplate, ante, at 630 n.3, is likely to be con-

trolled by the decision of that court.

In sum, the Court's disposition leaves all of the parties

in positions of uncertainty: Respondents lack protection

against the resumption of the county’s alleged discrimina-

tion, and the county lacks a conclusive determination of

the legality of its conduct. All of these considerations

militate against a determination of mootness. See Ver-

mont Yankee Nuclear Power Corp. v. Natural Resources

Defense Council, Inc., 435 U.S. 519, 535-537, n.14

(1978). Accordingly, I conclude that the question of

12

whether petitioners violated § 1981 is before us. I would

reach this issue and determine whether § 1981, like the

Equal Protection Clause of the Fourteenth Amendment,

prohibits only purposefully discriminatory conduct.

440 U.S. at 646-647 (footnotes omitted).

These same or similar considerations militate against a de-

termination of mootness in the instant case.

Conclusion.

For the reasons stated above, a writ of certiorari should issue

to review the judgment and opinion of the United States Court

of Appeals for the First Circuit.

Respectfully submitted,

FRANK J. McGEE,”*

STEVEN M. GUINEY,

McGEE anp PHILLIPS,

1952 Ocean Street,

Marshfield, Massachusetts 02050.

(617) 834-4690

*Counsel of Record

Appendix.

Appendix A — Opinion and Judgment of the United

States Court of Appeals for the First Circuit on re-

mand from this Court for consideration of mootness

Appendix B — Opinion and Judgment of this Court

vacating the original judgment of the United States

Court of Appeals for the First Circuit and remanding

for consideration of mootness

Appendix C — Original Judgment of the United

States Court of Appeals for the First Circuit affirm-

ing the Memorandum Order and Opinion of the

United States District Court for the District of Mas-

sachusetts

Appendix D — Memorandum Order and Opinion of

the United States District Court for the District of

Massachusetts

Appendix E — Massachusetts General Laws, Chapter

31, Sections 33 and 39

Appendix F — 1982 Massachusetts Acts, Chapter 190,

Section 25

la

la

Appendix A.

United States Court of Appeals

for the First Circuit.

No. 81-1642

BOSTON CHAPTER, NAACP, ET AL.,

PLAINTIFFS, APPELLEES,

0.

NANCY B. BEECHER, €r at.,

DEFENDANTS, APPELLEES.

BOSTON FIREFIGHTERS UNION, LOCAL 718,

INTERVENOR, APPELLANT.

No. 81-1650

PEDRO CASTRO, er AL.,

PLAINTIFFS, APPELLEES,

0.

NANCY B. BEECHER, &€r at.,

DEFENDANTS, APPELLEES.

BOSTON POLICE PATROLMEN’S ASSOCIATION, INC.,

INTERVENOR, APPELLANT.

No. 81-1651

PEDRO CASTRO, eT AL.,

PLAINTIFFS, APPELLEES,

0.

NANCY B. BEECHER, er a .,

DEFENDANTS, APPELLANTS.

2a

No. 81-1656

BOSTON CHAPTER, NAACP, Et AL.,

PLAINTIFFS, APPELLEES,

v.

NANCY B. BEECHER, Er At.,

DEFENDANTS, APPELLEES.

CIVIL SERVICE COMMISSION, et AL.,

DEFENDANTS, APPELLANTS.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

{Hon. Andrew A. Caffrey, U.S. District Judge]

Before

Campbell, Chief Judge,

Bownes, Circuit Judge,

and Perez-Gimenez,* District Judge.

Thomas A. Barnico, Assistant Attorney General, with

whom Francis X. Bellotti, Attorney General, Thomas R.

Kiley, First Assistant Attorney General, E. Michael Sloman,

Assistant Attorney General, and Marc S. Seigle, Special Assist-

ant Attorney General, were on brief, for Commonwealth of

Massachusetts.

John F. McMahon, with whom E. David Wanger, and

Angoff, Goldman, Manning, Pyle © Wanger, P.C. were on

brief, for Boston Firefighters Union, Local 718.

* Of the District of Puerto Rico, sitting by designation.

3a

Frank J. McGee, with whom Law Office of Frank J. McGee

was on brief, for Boston Police Patrolmen’s Association, Inc.

James S. Dittmar, with whom Peggy A. Wiesenberg,

Richard R. Lavin, Matthew D. Baxter and Widett, Slater &

Goldman were on brief, for plaintiffs, appellees.

August 31, 1983

Per CuriaM. This case is before the court on remand from

the Supreme Court for consideration of mootness. The facts

and prior proceedings are fully traced in this court’s previous

opinion, Boston Chapter, NAACP v. Beecher, 679 F.2d 965

(1st Cir. 1982). Since 1975, the Boston police and fire depart-

ments have been subject to consent decrees requiring preferen-

tial hiring of minorities to relieve the effects of prior discrimi-

nation. In 1981, facing proposed fiscal layoffs which would

substantially vitiate any progress made under the decrees,

plaintiffs sought and obtained modification of the original

decrees. Castro v. Beecher, 522 F. Supp. 873 (D. Mass. 1981).

The modifying order prohibited both Boston departments

from reducing minority percentages in their workforces, with

the practical result that non-minority firemen and police of-

ficers would have to be laid off before junion [sic] minority

firemen and police officers notwithstanding the state's last-

hired, first-fired statute.

The modification was affirmed on appeal to this court in the

above-cited case, and defendants obtained certiorari from the

Supreme Court. Meanwhile, however, Massachusetts enacted

the so-called Tregor Act mandating reinstatement of all police

and firefighters laid off during the reduction in force. See

1982 Mass. Acts, c. 190, § 25. The Supreme Court therefore

4a

vacated this court’s judgment and remanded for consideration

of mootness.

“The usual rule in federal cases is that an actual controversy

must exist at stages of appellate or certiorari review . . . .” Roe

v Wade, 410 U.S. 113, 125 (1973); Golden v. Zwickler, 394

U.S. 103 (1969). When, as here, intervening acts destroy the

interest of a party to the adjudication, the case is mooted,

DeFunis v. Odegaard, 416 U.S. 312 (1974). The Tregor Act’s

mandatory reinstatement of the laid off police and firefighters

and its requirement of minimum staffing levels through June

30, 1983 removed plaintiffs’ stake in the proceeding which

they had instituted in 1981] at a time when layoffs were taking

place.

This is not an example of the “voluntary cessation of alleged-

ly illegal conduct” which does not render a case moot. United

States v. W.T. Grant Co., 345 U.S. 629, 632 (1953). Rather

the city of Boston has acted pursuant to a supervening state

statute. Furthermore, the case does not present a question

“capable or [sic] repetition, yet evading review.” Southern

Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911).

Future layoffs might occur, but there is no reason to assume

that a similar state enactment would once again render the

case moot before resolution by the Supreme Court.'

Appellants’ contention that the case remains alive because

the modifying order prohibits the adjudication of state Civil

Service Commission claims for back pay is not persuasive. Ac-

cording to the established practice of the federal courts, when

a case is found moot, the district court's judgment will be va-

cated. United States v. Munsingwear, Inc., 340 U.S. 36, 39

(1950). Thus even assuming, which we do not decide, that the

' The Supreme Court has granted certiorari ou a case presenting the same

issue as the case before us. Stotts v. Memphis Fire Department, 679 F.2d 541

(6th Cir. 1982), cert. granted, 51 U.S.L.W. 3871 (June 6, 1983) (No.

82-229). Thus that question may be resolved within the near future.

5a

district court’s order directly inhibits the state Civil Service

Commission respecting the back pay claims, it will no longer

do so. To be sure, a definitive ruling on the constitutionality

of the district court’s past order might facilitate the Civil Serv-

ice Commission’s resolution of the back pay claims. But such a

ruling now — rendered in the absence of a present case or con-

troversy in this proceeding — would amount to no more than

an advisory opinion. The federal courts are forbidden by Arti-

cle III of the Constitution from giving advisory opinions. See,

e.g., North Carolina v. Rice, 404 U.S. 244 (1971); St. Pierre v.

United States, 319 U.S. 41 (1942). Appellants’ interest in the

resolution of this case shows that the issue here may retain

some collateral vitality, but to avoid mootness a case must pre-

sent both live issues and parties with legally cognizable in-

terests. United States Parole Commission v. Geraghty, 445

U.S. 388, 396 (1980). Plaintiffs now lack the “personal stake”

necessary to keep alive the controversy which engendered this

proceeding. The Civil Service Commission must therefore be

left to decide the back pay claims under the governing state

law without an advisory resolution of the constitutional issue

by the federal courts.

Accordingly, we vacate the district court’s order of August

7, 1981 and remand to the district court to dismiss as moot the

motion for modification, without prejudice to further actions

under the district court’s continuing jurisdiction to monitor

the original consent decrees. Crowell v. Mader, 444 U.S. 505,

506 (1980); Diffenderfer v. Central Baptist Church, 404 U.S.

412, 415 (1972); Romero-Barcelo v. Brown, 643 F.2d 835, 862

(Ist Cir. 1981).

Vacated and Remanded.

6a

Appendix B.

NOTICE: This opinion is subject to formal revision before publication

in the preliminary print of the United States Reports. are re-

quested to notify the Reporter of Decisions, Supreme Court of the United

States, Washington, D. C. 20543, of any typographical or other formal

errors, in order that corrections may be made before the preliminary

print goes to press.

Supreme Court of the United States

Nos. 82-185, 82-246 anv 82-259

BOSTON FIREFIGHTERS UNION, LOCAL 718,

PETITIONER

82-185 v.

BOSTON CHAPTER, NAACP, Et AL.

BOSTON POLICE PATROLMEN’S ASSOCIATION, INC.,

PETITIONER

82-246 v

PEDRO CASTRO er At.

NANCY B. BEECHER, et at., PETITIONERS

82-259 v.

BOSTON CHAPTER, NAACP, et AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

[May 16, 1983]

Per CurRiAM.

In these cases, the United States Court of Appeals for the

First Circuit upheld the District Court’s August 7, 1981 orders

7a

enjoining the Boston Police and Fire Departments from laying

off policemen and firefighters in a manner that would reduce

the percentage of minority officers below the level obtaining at

the commencement of layoffs in July, 1981. 679 F.2d 965

(1982). These orders had the effect of partially superseding

the operation of the state’s statutory last-hired, first-fired

scheme for civil service layoffs, Mass. Gen. Laws Ann. ch. 31,

§ 39. Following the Court of Appeals’ decision, Massachusetts

enacted legislation providing the City of Boston with new rev-

enues, requiring reinstatement of all police and firefighters

laid off during the reductions in force, securing these person-

nel against future layoffs for fiscal reasons, and requiring the

maintenance of minimum staffing levels in the police and fire

departments through June 30, 1983. See 1982 Mass. Acts,

c. 190, § 25. In light of these changed circumstances, we

vacate the judgment of the Court of Appeals and remand for

consideration of mootness in light of 1982 Mass. Acts, c. 190,

§ 25.

It is so ordered.

Justice MARSHALL took no part in the consideration or deci-

sion of these cases.

8a

Appendix C.

United States Court of Appeals

for the First Circuit

Nos. 81-1642

81-1656

81-1650

81-1651

BOSTON CHAPTER, NAACP, ET AL.,

PLAINTIFFS-APPELLEES,

v.

NANCY B. BEECHER, ET AL..,

DEFENDANTS-APPELLANTS,

and

BOSTON FIREFIGHTERS UNION, LOCAL 718

INTERVENOR-APPELLANT.

PEDRO CASTRO, ET AL.,

PLAINTIFFS- APPELLEES,

v.

NANCY BEECHER, ET AL.,

DEFENDANTS- APPELLANTS,

and

BOSTON POLICE PATROLMEN'S ASSOCIATION, INC.,

INTERVENOR-APPELLANT.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FROM THE DISTRICT OF MASSACHUSETTS

[Hon. ANprew A. Carrrey, U.S. District Judge}

(522 F. Supp. 873)

9a

Before

CAMPBELL, BowNes and BREYER,

Circuit Judges.

E. David Wanger, with whom John F. McMahon, and

Angoff, Goldman, Manning, Pyle © Wanger, P.C. were on

brief, for Intervenor, Appellant Local 718 in Case No. 81-1642.

Frank J. McGee, on brief for Intervenor-Appellant Boston

Police Patrolmen’s Association, Inc.

Thomas A. Barnico, Assistant Attorney General, Govern-

ment Bureau, Department of the Attorney General, with

whom Francis X. Bellotti, Attorney General, was on brief, for

the State Defendants-Appellants in Case No. 81-1651.

Marc S. Seigle, Special Assistant Attorney General, with

whom Francis X. Bellotti, Attorney General, was on brief, for

the State Defendants-Appellants in Case No. 81-1656.

James S. Dittmar, with whom Berman, Dittmar & Engel,

P.C., Judith Bernstein Tracy, and Peggy A. Wiesenberg were

on brief, for plaintiffs °npellees.

May 11, 1982

Bowness, Circuit Judge. This case arises from a conflict be-

tween a statutorily established seniority system mandating lay-

offs on a last hired, first fired basis and court orders insulating

a percentage of minorities from such a systern. Shortly after

the July 1981 beginning of fiscal 1982, the Police and Fire De-

partment ot the City of Boston embarked upon a program of

massive reductions in force, allegedly precipitated by budget-

ary restrictions imposed by “Proposition 2%.” During the six-

year period prior to the commencement of the layoffs, both

departments had been steadily increasing the percentage of

10a

their black and hispanic members pursuant to consent decrees

designed to remedy the present and continuing effects of past

racial discrimination. The consent decrees were silent as to

layoffs. If this reduction in force were conducted according to

strict seniority as prescribed by Massachusetts law,’ roughly

half of the blacks and hispanics hired would be laid off. To

prevent this substantial undoing of the progress made in inte-

grating blacks and hispanics into the police and fire depart-

ments, the district court granted plaintiffs’ motions in these

four consolidated cases to modify the prior consent decrees by

prohibiting both departments from reducing the percentage of

blacks and hispanics in their respective work forces below the

level obtaining at the commencement of the force-reduction

program. Defendant Massachusetts Civil Service Commission

(the Commission) and intervenors Boston Firefighters Union,

Local 718, and Boston Police Patrolmen’s Association, Inc.,

have appealed.

There are three fundamental issues: did the district court

have the power to modify the consent decrees and, if so, did its

orders impermissibly supersede a valid Massachusetts civil serv-

ice statute or unconstitutionally impose reverse discrimination.

In order to understand the issues and to analyze properly the

district court's modification of the consent decrees, it is neces-

sary to begin by tracing the prior proceedings.*

‘Mass. Gen. Laws Ann. ch. 31, § 5.

*We refer throughout this opinion to Castro et al. v. Beecher et al., and

related proceedings as the “police case.” The police case is reported at 334

F. Supp. 930 (D. Mass. 1971); 459 F.2d 725 (1st Cir. 1972); 365 F.Supp. 655

(D. Mass. 1973); 386 F. Supp. 1281 (D. Mass. 1975). Similarly, we refer to

Boston Chapter, NAACP, Inc., et al. v. Beecher, et al., and related pro-

ceedings as the “fire case.” The fire case is reported at 371 F. Supp. 507

(D. Mass. 1974); 504 F.2d 1017 (Ist Cir. 1974), cert. denied, 421 U.S. 910

(1975); 423 F. Supp. 696 (D. Mass. 1976). Both the police and fire cases

were reported most recently in Chief Judge Caffrey’s consolidated opinion,

522 F. Supp. 873 (D. Mass. 1981), from which this appeal arises.

lla

The Police Case

Plaintiffs, unsuccessful black and hispanic candidates for

appointment as Boston police officers, commenced the police

action in 1970. They claimed racial discrimination in viola-

tion of 42 U.S.C. §§ 1981 and 1983 in connection with the re-

cruitment and certification practices established by the Massa-

chusetts Civil Service Commission and implemented, through

appointment procedures, by the Boston Police Department as

well as other appointing authorities,’ including other Massa-

chusetts cities and towns and various state agencies. Castro et

al. v. Beecher et al., 334 F. Supp. 930, 934 (D. Mass. 1971)

(Wyzanski, J.).

Following trial, the district court made extensive findings,

including findings that in 1970, blacks represented 16.3 per-

cent of the population of Boston but only 3.6 percent of its

police force. The district court also found that the 1968-1970

Massachusetts Civil Service Police Entrance Examinations

were not job related and discriminated against minorities, in-

cluding plaintiffs, who did not share “prevailing white cul-

ture.” Jd. at 943. It enjoined the Commission from issuing

further certifications based on these examinations.

We held on appeal that the examinations were racially dis-

criminatory, and remanded the case with instructions that the

district court enter a remedial order requiring a nondiscrimi-

natory, job-related examination and providing for certification

of black and hispanic applicants on a priority basis, to be

determined in accordance with guidelines that we set forth.

Castro et al. v. Beecher et al., 459 F.2d 725, 730-31, 737-38

(1st Cir. 1972). We noted that the prescribed remedy “will

yield a significant increment of black and Spanish-surnamed

* Among the named defendants were the Metropolitan District Commis-

sion, the Massachusetts Bay Transportation Authority, and the Capitol Police.

334 F. Supp. at 934.

12a

police officers in the near term” and insisted that relief fashioned

by the district court “is to be more than token.” Jd. at 737.

On remand, after observing that unlike most consent de-

erees, this one had been preceded by full hearings, findings of

fact, conclusions of law and several opinions both of the dis-

trict and appellate courts, the district court approved a com-

prehensive consent decree, finding that it was “just, reasona-

ble, and in the public interest, and more likely than any other

proposed solution to give the people of the Commonwealth of

Massachusetts effective, non-discriminatory, dedicated, and

honorable police forces... .” 365 F. Supp. 655, 660 (D. Mass.

1973). The decree provided, among other measures, for the

creation of civil service certification priority pools, consisting

of black and hispanic applicants, and for the implementation

of affirmative rec:uitments programs aimed at this group. Id.

at 660-62.

In 1975 plaintiffs instituted another action under the All

Writs Act, 28 U.S.C. § 1651, seeking to clarify and preserve

the effect of the district court's decree in light of litigation that

had taken place in Massachusetts courts relating to the rights

of cities and towns to grant statutory preferences to residents

and veterans in appointing police officers. The court (Caffrey,

C.J.) held that the prior decree did not displace these statutory

preferences except insofur as the preferences must be applied

within the several groups of applicants established by the de-

cree. 386 F. Supp. 1281, 1285 (D. Mass. 1975). It urged that

the parties agree upon a substitute consent decree and recom-

uiciuded they follow the one adopted in the tire case, Boston

Chapter, NAACP, Inc. v. Beecher et al., 371 F. Supp. 507 (D.

Mass. 1974), aff'd, 504 F.2d 1017 (lst Cir.), cert. denied, 421

U.S. 910 (1975). Id. at 1286.‘

‘The consent decree finally agreed upon in the police case directed that

four groups of eligible police officer candidates be established for each requi-

sitioning police department:

13a

Thereafter the parties entered into a further consent decree,

which the district court approved on July 7, 1975. This decree

mandated, among other things, certification of police appli-

cants by methods essentis!ly designed to facilitate the appoint-

ment in Boston and Springfield of one minority police officer

for each white officer, and to expedite minority appointments

by other appointing authorities on a ratio of one to three. The

decree provided that these remedial measures should apply to

any city or town with a minority population of one percent or

more until the police force of the municipality “achieves a

complement of minorities commensurate with the percentage

of minorities within the community,” at which time further

certification would be made according to existing Massachu-

setts law.® The same parity target had already been set in the

fire case.

On July 13, 1976, and on June 1, 1979, the district court ap-

proved and entered supplemental consent decrees that provided,

among other measures, for continuation of the consent decree’s

method and ratios for certification, for further affirmative

recruitment activities, and for monitoring of the civil service

examination. They also discharged from further judicial

Group A consisted of minority applicants who failed discriminatory

police entrance exams administered between 1968-1970 but whc passed

the 1972 interim exam and were otherwise qualified;

Group B consisted of persons on three eligibility lists established in

1970-1971;

Group C consisted of minority candidates not in Group A who passed

the 1972 interim examination and were otherwise qualified;

Group D consisted of all other persons who passed the 1972 interim ex-

am and were otherwise qualified.

The consent decree in the fire case contained essentially identical groups of

candidates, except it stated that the discriminatory exams targeted by the

priority pools were administered from August 1968 to August 1971.

* This parity target also applied to the state agencies enumerated in note 3

supra, relative to the percentage of minorities in the communities served by

those agencies.

l4a

supervision the police departments of cities and towns that had

attained the parity target according to then current census sta-

tistics.

In the spring of 1981, the Boston Police Department initiated

the reduction in force program. Thereafter, on April 6, 1981,

plaintiffs filed a motion pursuant to Federal Rule Civil Proce-

dure 60(b) to modify prior remedial orders. Following state

funding legislation that led to a rescinding of the layoff pro-

gram for fiscal 1981, plaintiffs requested that the court con-

tinue their motion until the program was reinstituted. In the

first week of July 1981 the police department reactivated the

layoff program, and on July 30, 1981, the district court (Caf-

frey, C.J.) heard plaintiffs’ motion together with a similar mo-

tion in the fire case. On August 7, 1981, the opinion and order

issued enjoining the Boston Police Department and Fire De-

partment from reducing the percentage of minority officers

below the level existing at the commencement of the layoff

program.

The Fire Case

Unsuccessful black and hispanic applicants for appointment

as City of Boston fire fighters and the Boston Chapter of the

NAACP commenced the fire case in 1972. As in the police

case, the plaintiffs claimed racial discrimination in violation of

42 U.S.C. §§ 1981 and 1983 in connection with recruitment

and certification practices established by the Massachusetts

Civil Service Commission and implemented, through appoint-

ing procedures, by the Boston Fire Department as well as by

other appointing authorities.

In 1973 the Attorney General of the United States brought

an action raising similar claims, together with Title VII claims,

42 U.S.C. § 2000e et seqg., and the two actions were consoli-

dated.

15a

Following hearings, the district court made extensive find-

ings, including findings that blacks represented approximately

16 percent of Boston's population, that the combined minority

population was 23 percent of the total, and that blacks and

hispanics represented only 0.9 percent of the fire department's

sworn personnel. Boston Chapter, NAACP, Inc. v. Beecher et

al., 371 F. Supp. at 514 (Freedman, J.). The court treated the

hearings on plaintiffs’ challenge to the fire fighters’ entrance

examination as a trig! vii the merits pursuant to Federal Rule

Civil Procedure 65(a)(2) and found that plaintiffs had estab-

lished an unrebutted case of racial discrimination. The court

found, as evidenced by the “insignificant” number of blacks

and hispanics certified, that the examinations administered

from 1968 through August 1971 were discriminatory. It also

found that the word-of-mouth recruitment policy resulted in

racial discrimination, albeit unintentional. Jd. at 510, 517 &

519-20.°

To afford “affirmative relief to remedy the present effects of

past discrimination,” the district court ordered a program of

active recruitment of minority fire fighters, enjoined further

certification based upon the results of the discriminatory ex-

aminations, ordered development of a job-related examination,

and required establishment of priority certification groups for

black and hispanic applicants. Id. at 520-23. It ordered that

the remedial measures mandated by its decree remain in force

for any city or town with a minority population greater than

one per cent until the fire department of the municipality

“achieves a complement of minorities commensurate with the

* The district court concluded that defendants had not rebutted plaintiffs’

prima facie case of discrimination established by the statistical disparity be-

tween the percentage of minority fire fighters in various fire departments and

the relevant local population; it found that the entrance exams were not jub

related. Boston Chapter, NAACP, Inc. v. Beecher et al., 371 F. Supp. 507,

517 (D. Mass. 1974), citing Castro et al. v. Beecher et al., 459 F.2d 725, 732

(1st Cir. 1972).

16a

percentage of minorities within the community” at which time

“certifications will be made according to existing Massachu-

setts law.” Id. at 523.

We affirmed, holding that plaintiffs had demonstrated that

the Massachusetts civil service test had a disproportionate im-

pact on minority hiring and that defendants had not demon-

strated job relatedness. Boston Chapter, NAACP, Inc. v.

Beecher et al., 504 F.2d 1017 (1st Cir. 1974), cert. denied, 421

U.S. 910 (1975). See also Griggs v. Duke Power Co., 401 U.S.

424 (1971). Regarding the subject of an appropriate remedy,

we noted that in the police case we had required the district

court to institute remedial measures “as a means of ameliorat-

ing the continuing effects of past discrimination... .” Id. at

1026. We approved the district court’s decree, including the

provision that the decree would remain in effect until any par-

ticular fire department attains “sufficient minority fire fight-

ers to have a percentage on the force approximately equal to

the percentage of minorities in the locality.” Jd. at 1027. We

reasoned that the district court's color-conscious relief did not

violate the Constitution because it “goes no further than to

eliminate the lingering effects of previous practices that bore

more heavily than was warranted on minorities,” id., and that

“our society [is] well served by taking into account color in the

fashion used and carefully limited in extent and duration... .”

Id. We also rejected defendants’ contention that the relief was

barred by section 703(j)’ of Title VII, 42 U.S.C. § 2000e-2(j).

Id. at 1027-28.

Section 703(j) of Title VII provides:

Nothing contained in this subchapter shall be interpreted to require

any employer, employment agency, labor organization, or joint labor-

management committee subject to this subchapter to grant preferential

treatment to any individual or to any group because of the race, color,

religion, sex, or national origin of such individual or group on account

of an imbalance which may exist with respect to the total number or

percentage of persons of any race, color, religion, sex, or national ori-

17a

Since the 1974 decree, the district court has entered several

interim consent decrees and stipulations to effectuate its

original order. These subsequent orders have set procedures

for administration of new examinations, establishment of

eligibility lists, affirmative recruitment, and notice and repor-

ting.

On April 7, 1981, upon commencement by the City of Bos-

ton of its force-reduction program, plaintiffs filed a motion to

modify prior remedial orders. As in the police case, proceed-

ings were continued until the consolidated hearing on July 30,

1981. The injunction covering both departments issued on

August 7.

The Facts

The statistics are undisputed. At the time of the original fil-

ing of these actions, racial discrimination had led to the virtual

exclusion of blacks and hispanics from Boston’s Police and Fire

Departments. In 1970, only 65 of 2,805 police officers were

black or hispanic, representing but 2.3 percent of the total.

459 F.2d at 728 n.1, 730. As of 1974, only 18 of 1,983 fire

fighters were black or hispanic, representing only 0.9 percent

of the total. 371 F.Supp. at 514. In contrast, the minority

population of Boston wa more than 16 percent in 1970, 459

F.2d at 728, and approximately 23 percent by 1974. 504 F.2d

at 1020 n.4.

gin employed by any employer, referred or classified for employment

by any employment agency or labor organization, admitted to

membership or classified by any labor organization, or admitted to, or

employed in, any apprenticeship or other training program, in com-

parison with the total number or percentage of persons of such race,

color, religion, sex, o1 national origin in any community, State, sec-

tion, or other area, or in the available work force in any community,

State, section, or other area.

42 U.S.C. § 2000e-2(j).

18a

The district court's remedial orders in both cases have pro-

duced marked progress eliminating the present and continuing

effects of past discrimination. Between 1974 and 1980, the

Boston Police Department hired 492 officers, of whom 213 (43

percent) were black or hispanic. As of July 6, 1981, 224 out of

a total of 1,912 officers were black or hispanic; minority repre-

sentation had risen to 11.7 percent. Between 1974 and 1980,

the Boston Fire Department hired 553 fire fighters, of whom

248 (45 percent) were black or hispanic. On July 6, 1981, 248

out of a total of 1,690 fire fighters were black or hispanic;

minority representation had increased in this department to

14.7 percent.

By 1980, however, the black and hispanic population of

Boston had risen to between 29 and 30 percent, almost double

the percentage of ten years prior.

Early in July 1981 both the Police and Fire Departments of

the City of Boston commenced a systematic program of reduc-

tion in force. The city’s program proposed six weekly layoffs,

running from early July to mid-August. The police and fire

departments planned to make these layoffs pursuant to the

Massachusetts civil service statute, which requires separations

from service in reverse order of seniority. Mass. Gen. Laws

Ann. ch. 31, § 39.

Such a layoff program was certain to cause a devastating

reduction in the number of black and hispanic officers on both

forces. The police department planned to lay off 252 officers,

of whom 122 were black or hispanic. Of the officers to be laid

off, 48 percent were minority,* which comprised 54.5 percent

*The Supreme Court has approved of racial preferences granted to

“minority” groups of divergent composition. Compare United Steelworkers

of America v. Weber, 443 U.S. 193 (1979) (blacks only) with Fullilove, et al.

v. Klutznick, Sec. of Commerce, et al., 448 U.S. 448 (1980) (Negroes, Span-

ish-speaking, Orientals, Indians, Eskimos, and Aleuts). Throughout this

opinion, our references to “minority” group members pertain to blacks and

19a

of the department's entire complement of minority officers.

The fire department planned to lay off 207 officers, of whom

113 (54.6 percent) were black or hispanic; this constituted

45.6 percent of all minorities on the force. Unbridled opera-

tion of the force-reduction program would have dramatically

cut minority representation in both the police and fire depart-

ments. By mid-August 1981 only 103 of 1,660 police officers

would have been black or hispanic, and minority representa-

tion would have fallen from 11.7 percent to 6.2 percent. By

mid-August only 135 of 1,483 fire fighters would have been

black or hispanic, and minority representation in that depart-

ment would have dropped from 14.7 percent to 9.1 percent.

Moreover, although as of July 30, 1981, city officials intend-

ed to proceed with only six waves of layoffs, there was no cer-

tainty that further force reductions would not occur.

The Decision Below

In its August 7, 1981 consolidated opinion, the district court

made the specific findings outlined above. It then found, on

the basis of the entire record in both cases, that “the massive

firings claimed by municipal authorities to be the result of the

voters enacting Proposition 2% amount to ‘new and unfore-

seen conditions’... .” Castro et al. v. Beecher et al., 522

F.Supp. at 877. It ruled that, in light of the remedial objec-

tive of both consent decrees,

namely bringing minority representation up to a level ap-

proximating the percentage of the total population which

the minorities represent in the community, . . . if any-

hispanics only. Whether a particular individual qualifies as a “minority”

group member entitled to relief according to this definition has not been

raised by the parties and we proffer no opinion on that question.

20a

thing similar to Proposition 2 had been in effect at the

time that the remedial decrees were entered, these de-

crees would have been fashioned to make allowances for

terminations so that the minority representation on both

departments could have been maintained if not increased

notwithstanding the then hypothetically ongoing termi-

nations.

Id.

The court also concluded that the denial of the relief sought

would reverse the results of the court’s prior remedies, would

“allow the substantial eradication of all progress made by

blacks and hispanics” in securing positions as police officers

and fire fighters, and would produce a “grievous wrong.” Id.

Accordingly, the Boston Police Commissioner and Fire Com-

missioner were enjoined from reducing, “pursuant to any

departmental or city program of reduction in force on account

of lack of funds or abolition of position,” the percentage of

minority officers below that obtaining at the commencement

of the program. Id. at 877-78. Neither the Police Commis-

sion nor the Fire Commissioner has appealed.

I. THE COURT’S POWER TO REVISE

THE CONSENT DECREE

We initially determine whether the district court was em-

powered to modify its prior remedial orders because of the im-

pending layoffs. At the outset we note that defendants settled

both the police case, filed originally under sections 1981 and

1983, and the fire case, commenced under these sections as

well as Title VII, by entering into remedial consent decrees.

They did so only after the liability issues had been extensively

litigated, resulting in well-supported determinations at the

district and circuit levels (with certiorari having been sought

Qla

and denied in the fire case), that defendant's certification and

recruiting procedures were discriminatory because they had

produced an underrepresentation of blacks and hispanics in

the police and fire departments, and that these procedures

lacked justification in terms of job-relatedness. See Griggs v.

Duke Power Co., 401 U.S. 424.

The first question is whether Washington v. Davis, 426 U.S.

229 (1976), and Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977), bar the relief or-

dered because intentional discrimination was not proved. We

find no bar. It is by no means clear that our decisions in the

police and fire cases should have been different had they been

decided after Washington v. Davis and Arlington Heights, but

in any event the pattern of relief which the present modifica-

tions in the decrees seek to preserve was conclusively estab-

lished prior to those decisions. Neither case stands in the way

of the district court's modification of the consent decree. Sara-

bia v. Toledo Police Patrolman’s Ass'n, 601 F.2d 914, 919 (6th

Cir. 1979); Bolder v. Penn. State Police, 73 F.R.D. 370,

371-72 (E.D. Pa. 1976).

We have carefully reviewed the original complaints, the

language contained in the decrees, and all district and circuit

court opinions in these cases. We can only conclude that the

purpose of the decrees and the intervening orders was to elimi-

nate the present and continuing effects of defendants’ past

discrimination. We reject appellants’ contention that the

original decrees and subsequent modifications limit relief to

correcting features of the certification process found to have

violated plaintiffs’ constitutional rights as to hiring. These cas-

es encompass the overall issue of shaping ongoing relief so as to

eliminate the condition precipitating the original decrees:

gross discriminatory underrepresentation of persons in the fire

and police departments who are not members of the “prevail-

22a

ing white culture.”* Castro v. Beecher, 459 F.2d 725, 729-31

(Ist Cir. 1972); see Milliken v. Bradley, 418 U.S. 717, 744

(1974); Swann v. Charlotte-Mecklenberg Bd. of Educ., 402

U.S. 1, 16 (1971); cf. Evans v. Buchanan, 582 F.2d 750, 768

(3d Cir. 1978) (in banc), cert. denied, 446 U.S. 223, reh’g de-

nied, 447 U.S. 916 (1980).

The district court based its authority to reshape the consent

decrees on its finding that the dramatic reduction in minority

representation in these departments constituted a showing of a

“grievous wrong evoked by new and unforeseen conditions,”

citing the Supreme Court in United States v. Swift, 286 U.S.

106, 119 (1932). Swift involved an antitrust defendant that

sought to avoid its obligations pursuant to a consent decree due

to changed market conditions. Perhaps a more apt standard

was set out by the Supreme Court in United States v. United

Shoe Corp., 391 U.S. 244 (1968), wherein plaintiffs in an anti-

trust dispute sought revision of their remedy designed to pro-

duce “workable competition.” Jd. at 249. There, the Court

held that modification was appropriate because time and ex-

perience had demonstrated that the decree had failed to ac-

complish its intended result. Id. See also System Federation

v. Wright, 364 U.S. 642, 647 (1961). In any event there can

be no question of the power of a court of equity, upon a suffi-

cient showing, “to modify an injunction in adaptation to

changed conditions though it was entered by consent.” United

States v. Swift, 286 U.S. at 114. Here, there was ample show-

ing that changed circumstances would totally vitiate the in-

tended effect of the original decrees unless the proposed

modifications were made.

* Prior orders and stipulations in both cases have dealt with matters going

beyond civil service certification measures, including employment of provi-

sional employees, recruiting, appointment targets, rejection of applicants,

the effects of statutory preferences for veterans and local residents, mental

and physical testing, and firing. See, e.g., 371 F.Supp. at 521-22; 365

F.Supp. at 662-62.

23a

Nor do we think that plaintiffs should be penalized for fail-

ing, in negotiating the decrees, to have foreseen the unprece-

dented change in state and local fiscal policy resulting in the

extensive layoff programs. We agree with the district court

that, had the parties anticipated any measure such as Proposi-

tion 2%, they would have incorporated some provision ad-

dressing its potential impact into the decrees. Failure to take

the action here challenged would result in undoing most all

that had been accomplished by the original decrees.

The Sixth Circuit's treatment of a virtually identical layoff

situation in Brown v. Neeb, 644 F.2d 551 (6th Cir. 1981),

lends considerable support to our conclusion that modification

was within the court's power. In Brown, findings of prior il-

legal discrimination by the Toledo Fire Department formed

the predicate of consent decree entered into by the city, which

set as a goal that the city “achieve within 5 years a fire depart-

ment which reflected the racial composition of the city as a

whole.” Jd. at 555. The Sixth Circuit upheld the district

court's authority to order tl.e same type of modification of the

original decree as in this case, reasoning that the language in

the decree, although silent as to the effect of layoffs, and the

circumstances surrounding the entry of the decree, compelled

the conclusion that the “city agreed that it had a constitutional

duty to eliminate discrimination in the hiring of firefighters.”

Id. at 562-63. The Brown court distinguished its denial of

similar relief in Youngblood v. Dalzell, 568 F.2d 506 (6th Cir.

1978), because in Youngblood, unlike Brown, there had been

no finding of prior discrimination; the original decree con-

tained language expressly denying that the Cincinnati Fire

Department had discriminated in its past hiring practices.

Brown v. Neeb, 644 F.2d at 561 & n.18.

Here, as in Brown, the defendants entered into consent

decrees upon “capitulating to judicial findings of past discrim-

ination.” Brown v. Neeb, 644 F.2d at 562 & n.20; Boston

24a

Chapter, NAACP, Inc. v. Beecher, April 17, 1975 Interim

Consent Decree (fire case), App. at 90-91; Castro v. Beecher,

365 F.Supp. at 656. Both decrees contain language that war-

rants concluding that the certifying and appointing authorities

are under an affirmative duty to integrate the police and fire-

departments until the percentage of blacks and hispanics in

both departments approximates that of the general popula-

tion.'° In addition, neither decree contains any exculpatory

language as in Youngblood. And, as in Brown, if the district

court undertook no modification, the layoffs would have erod-

ed significantly, if not completely destroyed, the affirmative

action progress made to date. See Brown v. Neeb, 644 F.2d at

560. Under these circumstances, we conclude that the district

court had the authority to modify the consent decrees in the

light of new and unforeseen conditions.

We next address the issues of whether the relief ordered was

proper and constitutional.

Il. THE COURT ORDER VERSUS THE

MASSACHUSETTS SENIORITY STATUTE

To implement its order prohibiting the Boston Police and

Fire Departments from reducing the current level of minority

representation, the district court required the maintenance of

separate minority and nonminority lists with respect to

seniority, reemployment and reinstatement. To this extent,

therefore, the district court's order superseded the operation of

the reverse seniority layoff provisions of the Massachusetts civil

service statute, Mass. Gen. Laws Ann. ch. 31, § 39.'' Most

'° See, e.g., June 27, 1975 Consent Decree (police case), App. at 122-23;

April 17, 1975 Interim Consent Decree (fire case), App. at 93.

Mass. Gen. Laws Ann. ch. 31, § 39 provides in pertinent part:

If permanent employees in positions having the same title in a

departmental unit are to be separated from such positions because

25a

of the cases dealing with the inherent conflict between af-

firmative action programs and vested seniority rights have

concerned private employers and Title VII. And, until re-

cently, the dispute has mainly centered on hiring and promo-

tion.

There are three Supreme Court cases that focus on the prob-

lem of seniority rights and discrimination against minorities.

Franks v. Bowman Transp. Co., 424 U.S. 747 (1976); Interna-

tional Bhd. uf Teamsters v. United States, 431 U.S. 324

(1977), and American Tobacco Co., et al. v. Patterson, et al.,

50 U.S.L.W. 4364 (April 5, 1982). In Franks the district court

had found that the employer had discriminated in making hir-

ing, transfer, and dischrage decisions, all of which occurred

after July 2, 1965, the date on which the prohibition against

racial discrimination under Title VII took effect as to private

employers. Franks v. Bowman Transp. Co., 424 U.S. at 751,

758 n.10. The Supreme Court held that section 703(h) of Title

VII, 42 U.S.C. § 2000e-2(h) '* did not “modify or restrict relief

of lack of work or lack of money or abolition of positions, they shall,

except as hereinafter provided, be separated from employment accord-

ing to their seniority in such unit and shall be reinstated in the same

unit and in the same positions or positions similar to those formerly

held by them according to such seniority, so that employees senior in

length of service, computed in accordance with section thirty-three,

shall be retained the longest and reinstated first. Employees separated

from positions under this section shall be reinstated prior to the

appointment of any other applicants to fill such positions or similar

positions, provided that the right to such reinstatement shall lapse at

the end ot the five-year period following the date of such separation.

'* Relevant portions of § 703(h) of Title VII provide:

Notwithstanding any other provision of this subchapter, it shall not

be an unlawful employment practice for an employer to apply differ-

ent standards of compensation, or different terms, conditions, or

privileges of employment pursuant to a bona fide seniority or merit

system, or a system which mcasures earnings by quantity or quality of

production or to employees who work in different locations, provided

26a

otherwise appropriate once an illegal discriminatory practice

occurring after the effective date of the Act is proved,” id. at

761-62, and “that class-based seniority relief for identifiable

victims of illegal hiring discrimination was a form of relief

generally appropriate under § 706(g).” Jd. at 779; accord,

Teamsters v. United States, 431 U.S. at 346-48; EEOC v.

American Tel. & Tel. Co., 556 F.2d 167, 174 (3d Cir. 1977),

cert. denied, 438 U.S. 915 (1978); see Ass’n Against Discrimi-

nation v. City of Bridgeport, 647 F.2d 256, 278 (2d Cir.), cert.

denied, 102 S.Ct. 397 (1981); Guardian's Ass'n of New York

City v. Civil Service, 633 F.2d 232, 249-54 (2d Cir. 1980),

cert. denied, 101 S.Ct. 3083 (1981); Chance v. Board of Ex-

aminers & Bd. of Educ., 534 F.2d 993, 1007 (2d Cir. 1976)

(reh'g in banc), cert. denied, 431 U.S. 965 (1977).

In Teamsters the Court did not retreat from the rule set

forth in Franks, but dealt instead with the effect of section

703(h) on awarding retroactive seniority to redress prior dis-

crimination that had occurred both before and after the effec-

tive date of Title VII. The district court in Teamsters had

found that the employer had discriminated by implementing

hiring, assignment and promotion policies that caused black

and hispanic employees to occupy the lower paying and less

desirable jobs. 431 U.S. at 329-31. As to those plaintiffs

claiming that they had been discriminated against after the ef-

fective date of Title VII, the Court stood firm on its Franks

ruling. Jd. at 347. But the Court denied relief to those plain-

that such differences are not the result of an intention to discriminate

because of race, color, religion, sex, or national origin, nor shall it be

an unlawful employment practice for an employer to give and to act

upon the results of any professionally developed ability test provided

that such test, its administration or action upon the results is not de-

signed, intended or used to discriminate because of race, color,

religion, sex or national origin.

42 U.S.C. § 2000e-2(h).

27a

tiffs alleging discrimination that occurred prior to the effective

date of the Act and held that an “otherwise neutral, legitimate

seniority system does not become unlawful under Title VII

simply because it may perpetuate pre-Act discrimination.” Id.

at 353-54.

The most recent case, American Tobacco Co. v. Patterson,

50 U.S.L.W. 4364, dealt with the question whether § 703(h)

applied to seniority systems adopted after the effective date of

Title VII, July 2, 1965. After an exegesis of the statutory his-

tory of Title VII, the Court concluded that § 703(h) im-

munizes a bona fide seniority system whenever adopted unless

intentional discrimination wes proven. Id. at 4367-68. Com-

pare p. 13 American Tobacco Co. did not explicitly overrule

the holding of Franks that § 703(h) does not bar appropriate

relief if an illegal discriminatory practice occurring after the

effective date of the Act is proved.

We find nothing in this trilogy that precludes a court from

ordering relief to remedy discrimination that exists apart from

the adoption or application of a bona fide seniority system.

The original consent decrees in the cases before us, decided

long before the Supreme Court cases, were directed at such in-

dependent violations, the use of discriminatory certification

examinations. None of the Supreme Court cases apply to the

basic issue at stake here; the power of a court in a litigated dis-

crimination case to ensure that relief already ordered not be

eviscerated by seniority-based layoffs. To hold a seniority

system inviolate in such circumstances would make a mockery

of the equitable relief already granted.

Two recent Second Circuit cases are analogous to our situa-

tion. Guardians Ass'n v. Civil Service, 633 F.2d 232 (2d Cir.

1980), cert. denied, 101 S.Ct. 3083 (1981), was an action

brought under Title VII, Title VI and 42 U.S.C. § 1981 by

black and hispanic members of the New York City Police De-

partment, alleging that layoffs carried out pursuant to a last

28a

hired, first fired plan were discriminatory because the Depart-

ment’s entry examinations administered during the years 1968

to 1970 were discriminatory, and that but for such discrimina-

tion plaintiffs would have been hired earlier and thus would

have accrued sufficient seniority to withstand being fired. The

Court upheld the district court's findings that the entry exami-

nations were discriminatory and held that the use of such tests

as late as 1974 violated Title VII. It held that § 703(h) did not

“immunize post-Act hiring on the basis of an eligibility list re-

flecting performance on pre-Act discriminatory examina-

tions.” Jd. at 253. In Association Against Discrimination v.

City of Bridgeport, 647 F.2d 256 (2d Cir. 1981), cert. denied,

50 U.S.L.W. 3695 (March 3, 1982) (Nos. 81-373, 81-374), the

Second Circuit affirmed its holding in Guardians that a

municipality could be held liable under Title VII for post-Act

hiring based on a pre-Act discriminatory hiring list. Id. at

272-74.

It is now settled that remedies to right the wrong of past dis-

crimination may suspend valid state laws. Carter v.

Gallagher, 452 F.2d 315, 328 (8th Cir. 1961) (reh’g in banc),

cert. denied, 406 U.S. 950 (1972); United States v. Mississippi,

339 F.2d 679 (Sth Cir. 1964); United States v. Duke, 332 F.2d

759 (5th Cir. 1963). See generally Note, Last Hired, First

Fired Layoffs and Title VII, 88 Harv. L. Rev. 1544, 1557-60

(1975).

We emphasize that the district court orders do not com-

pletely nullify the seniority statute. Nor do they mandate the

firing of any particular employees. The orders allow the

statute to be followed so long as the level of minority represen-

tation is not reduced beyond that which prevailed at the time

the personnel reductions began. The order was designed to

operate within the framework of the statute, although modify-

ing it to the extent necessary to preserve the integration al-

ready achieved.

29a

We hold that the court's orders prevail over the Massachu-

setts seniority statute.

III. THE CONSTITUTIONALITY OF THE ORDERS

Appellants argue that the orders discriminate against non-

minorities and thus are unconstitutional.'? We first define the

issue. This case does not involve an award of constructive

seniority to individuals who have been discriminated against;

the orders require that there be a certain percentage of

minorities on the Police and Fire Departments without regard

to whether the individuals comprising the minority percentage

were the actual victims of past discrimination.

We turn to the Supreme Court cases, in addition to those al-

ready discussed, bearing on the issue. The first case is

McDonald vy. Santa Fe Trail Transp. Co., 427 U.S. 273,

286-87 (1976), which held that section 1981 protects whites as

well as blacks from racial discrimination in private employ-

ment.

Next came University of California Regents v. Bakke, 438

U.S. 265 (1978). A divided court upheld so much of the judg-

ment of the Supreme Court of California declaring the Univer-

sity’s special admission program based on racial quotas unlaw-

ful. Id. at 270-71. It reversed, however, that portion of the

California court's judgment enjoining the University from ac-

cording any consideration to race in its admission process. Id.

at 272.

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

reh'g denied, 444 U.S. 889 (1980), comes closer to our problem.

‘? As a threshold matter, we find that appellants did preserve the reverse

discrimination argument for appeal by suggesting the applicability of the

reasoning in Chance v. Board of Examiners & Bd. of Educ., 534 F.2d 993 (2d

Cir. 1976), cert. denied, 431 U.S. 965 (1977), at the July 30, 1981 hearing

before Judge Caffrey.

30a

In Weber the Court held that Title VII does not bar voluntary,

private affirmative action undertaken by an employer in col-

laboration with a union, even when the plan is racially prefer-

ential or accomplished through a quota, so long as the plan is

directed to eliminating “conspicuous racial imbalance in tradi-

tionally segregated job categories.” Jd. at 208-09. Although

the court declined to “define in detail the line of demarcation

between permissible and impermissible affirmative action,”

id. at 208, it noted that “the plan does not unnecessarily tram-

mel the interests of the white employees. The plan does not

require the discharge of white workers and their replacement

with new black hirees.” Jd.

The fourth Supreme Court case that bears, albeit tangen-

tially, on the issue is Fullilove v. Klutznick, 448 U.S. 448

(1980). This case upheld the power of Congress to require in a

congressional spending program that “10% of the federal

funds granted for local public works projects must be used by

the state or local grantee to procure services or supplies from

businesses owned and controlled by members of statutorily

identified minority groups.” Id. at 453.

Although these decisions issued from a sharply divided court

and were marked by separate concurrences and dissents, we

think it is now firmly established that remedial relief for the

effects of past discrimination need not be color-blind and that

the use of minority-conscious percentage goals and quotas to

overcome the present and ongoing effects of past discrimina-

tion is constitutionally permissible. See United States v. City

of Miami, Fla., 614 F.2d 1322, 1335 (5th Cir. 1980) and cases

cited therein. We also think that Weber implicitly approves

the use of such remedies in sections 1981 and 1983 cases as well

as Title VII cases. See Setser v. Novack Inv. Co., 657 F.2d

962, 955-67 (8th Cir. 1981) and cases cited therein.

None of the other Supreme Court cases, however, involve

public employment nor address directly the situation before

3la

us; the conflict between a last hired, first fired seniority system

and court orders seeking to maintain some semblance of racial

balance in municipal Police and Fire Departments. There is

no blinking the fact that there is significant difference between

hiring and promoting in accord with a race-conscious ratio

and insulating from discharge a percentage of employees

because they are members of a minority group. In the former

situation, there is only a postponement of expectations; in the

layoff sitation, employees with greater seniority lose their jobs.

See Detroit Police Officers’ Ass'n v. Young, 608 F.2d 671, 696

n.12 (6th Cir. 1979); Judge Skelly Wright, Color-Blind

Theories and Color Conscious Remedies, 47 U. Chi. L. Rev.

213, 238-40 (1980).

We do not think the issue can be resolved by simply follow-

ing the Title VII cases and awarding constructive seniority to

those minority members of the departments that can show that

they were discriminated against by the entry examinations

given in 1968-1970. This is not an action for damages. The

relief sought originally was not for individuals, but to correct a

condition of racial imbalance. We do not know the exact ef-

fect the award of constructive seniority to the identifiable vic-

tims of the past discrimination would have on the minority

percentages of the departments. Considering, however, that

more than ten years have passed, we do know that such a

limited remedy would result in minority ratios far below that

set by the district court.'*

'*In response to an inquiry at oral argument, we have been informed that

the earliest seniority date of minority police officers laid off is June 1980, and

the earliest seniority date of laid-off white police officers is December 30,

1970. We have also been told that of the 258 police officers laid off, 34 are

minority and that if it were not for the order of the district court, 130 minori-

ty officers, 126 white officers, and 2 oriental officers would have been laid

off. Asa result of the order, 81 minority officers were recalled so as to main-

tain the 11.7% minority representation in the department. On a percentage

32a

It must be stressed that the orders here do not require the

continuation of the affirmative action programs by the hiring

of minorities and the firing of whites. All they do is preserve

the status quo at a 14.7 percent minority ratio for fire fighters

and an 11.7 percent for policemen. Against a background of a

present 30 percent minority population in Boston, this hardly

can be deemed overreaching. Nor do we think it can fairly be

characterized as “unnecessarily trammeling” the interests of

the whites. United States v. Weber, 443 U.S. at 208. The fact

of past discrimination agreed to in both cases constitutes a

“compelling need” for a minority-conscious remedy. The

proper test is one of reasonableness. See Morgan, et al. v.

O’Bryant, et al., Nos. 81-1561, 1617, 1618, 1619, and 1646,

slip op. at 10-11 (1st Cir. February 17, 1982). The orders of

the district court meet the test of reasonableness. They were

necessary to prevent the departments from regressing to the

state of precipitous racial imbalance that prevailed at the com-

mencement of this litigation more than ten years ago.

We are acutely aware that some white policemen and fire

fighters who, understandably, regard the seniority system as

an inalienable right and who have been innocent themselves of

any discrimination will lose their jobs, at least temporarily.'*

basis, the district court's order means that a little more than 13% of those

iaid off are members of the minority group.

'S If a fire fighter or police officer with permanent civil service status is laid

off as a result of a reduction in force, that individual will be placed on

reemployment lists by the Director of Personnel Administration. A

reemployment list establishes for a laid-off fire fighter or police officer the

right to be certified to all municipalities for a period of two years from his

layoff, ahead of all other persons eligible for appointment as police officers or

fire fighters. Mass. Gen. Laws Ann. ch. 31, § 40. In addition, a police of-

ficer or fire fighter has the right to be reinstated to a vacancy within the de-

partment from which he was laid off for five years after the date of his ter-

mination — again with preference over all other eligible applicants. Mass.

Gen. Laws Ann. ch. 31, § 39.

33a

We also must recognize that whites as a group reaped signifi-

cant advantages in the past in hiring and promotion at the ex-

pense of blacks and hispanics and that a last hired, first fired

seniority system perpetuates the past exclusion of minorities.

This is not a case of wrong or right; it is a case of two com-

peting rights, earned seniority versus racially balanced police

and fire departments.

An important factor in these cases is that they involve the

police and fire departments of a large metropolitan city that

now has a minority population of at least 30 percent. We are

concerned here not with simply redressing the rights of in-

dividuals who suffered racial discrimination; the issue is

whether the progress made to date in integrating the depart-

ments will be preserved. As Judge Wyzanski noted, the public

interest requires a racially balanced police force. Castro v.

Beecher, 365 F. Supp. at 660. We do not need expert testi-

mony to make the point that, unless the public safety depart-

ments of a city reflect its growing minority population, there is

bound to be antagonism, hostility and strife between the

citizenry and those departments. The inevitable result is poor

police and fire protection for those who need it most.

The argument that police need more minority officers

if not simply that blacks communicate better with blacks

or that a police department should cater to the public’s

desires. Rather, it is that effective crime prevention and

solution depend heavily on the public support and co-

operation which result only from public respect and con-

fidence in the police. In short, the focus is not on the

superior performance of minority officers, but on the

public’s perception of law enforcement officials and in-

stitutions.

The probable extent of recalls in both departments is not yet clear,

although some evidence does exist that in fact reinstatement of at least some

of the laid-off employees has taken place or will occur.

34a

Detroit Police Officer's Ass'n v. Young, 608 F.2d 671, 696 (6th

Cir. 1979).

It is significant that the only circuit case directly on point,

Brown v. Neeb, 644 F.2d at 564, held: “To the extent that the

seniority system is an obstacle to the city of ‘Toledo’s duty to

eliminate past discrimination the district court can set it

aside.”

We find no constitutional bar. It is now accepted that

minority-conscious quotas can be used as a tool to prevent dis-

crimination and to advance integration of the work force in

hiring and promotion situations. The imposition of construc-

tive seniority to offset the effects of a last hired, first fired

system has been used with increasing frequency since Franks

in Title VII cases. While the orders place a relatively greater

share of the burdens of the layoffs upon nonminorities, this

does not constitute “reverse discrimination.” The layoffs here

were bound to cause undeserved injury in any event. While

seniority was the normal way to decide who must go first,

there is nothing magical about seniority, and here common

sense suggests that it should be tempered by other entirely ra-

tional considerations so that the racial equity achieved at con-

siderable effort in the past decade not be erased. In Bakke,

not an employment case, the Supreme Court refused to enjoin

the University from giving any consideration to race in its ad-

missions process. It is a simple fact that discrimination against

blacks and other minorities was long accepted and condoned

in this country. To a minority police officer or fire fighter

hired within the last ten years, the imposition of a rigid last

hired, first fired seniority system would only mean that once

again the dominant white culture had protected its own kind

at the expense of blacks and hispanics. If the evil of racial dis-

crimination is to be fought openly, we must not allow our-

selves to be caught in a semantic web of aphorisms such as “re-

verse discrimination” that in the final analysis serve only to

perpetuate the discrimination of the past.

35a

We rule that the district court had the equitable power to

modify the consent decrees, that the Massachusetts statutory

last hired, first fired seniority system is not insulated from the

court's orders, and that the orders are not unconstitutional.

Affirmed.

36a

APPENDIX D.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

PEDRO CASTRO, ET AL,

Plaintiffs,

Vv. CIVIL ACTION NOS.

70-1220-C

74-2982-C

NANCY B. BEECHER, ET AL,

Defendants.

ORDER

August 7, 1981

CAFFREY, Ch. J.

This matter having come on for hearing on plaintiffs’ mo-

tion to modify prior remedial orders; and the Court having

considered the prior proceedings had herein, further evidence

regarding proposed reductions in force affecting the Police

Department of the City of Boston, the parties’ briefs and the

arguments of counsel; and the Court having found that a

material change in circumstances — namely, the effective and

proposed reductions in force — would nullify the Court's prior

remedial orders and frustrate the intent of those orders; and

the Court having found that modification of those prior reme-

dial orders through entry of the within order is necessary to

prevent that consequence, it is therefore,

ORDERED, ADJUDGED AND DECREED as follows:

37a

1. The defendant Commissioner of Police of the City of

Boston is hereby restrained and enjoined from reducing, pur-

suant to any departmental or city program of reductions in

force of police personnel on account of lack of funds or aboli-

tion of position, the percentage of black and Spanish-sur-

named post-probationary police officers in the City of Boston

Police Department below the level of 11.7 percent of all such

officers.

2. For the purpose of implementing this order, the defend-

ant Commissioner of Police of the City of Boston shall establish

and maintain separate seniority lists of post-probationary

police officers, one for minority officers and one for non-

minority officers and shall use such separate lists in imple-

menting any program of reductions in force on account of lack

of funds or abolition of positions. Within each separate

seniority list, the seniority of each officer shall be computed

pursuant to statute, M.G.L. c. 31 § 33.

3. As police officers in the Boston Police Department are

separated from their positions because of lack of funds or

abolition of positions, the defendant Fire Commissioner may

terminate officers according to strict seniority until the reduc-

tion in force results in a reduction of the percentage of black

and Spanish-surnamed police officers below 11.7 percent. At

that point, the Commissioner shall utilize separate seniority

lists for minority and non-minority police officers and shall

terminate the least senior police officers from each of the two

lists according to a mathematical ratio so that the percentage

of black and Spanish-surnamed officers at no time falls below

11.7 percent. Nothing herein shall disturb application of Mas-

sachusetts statutory preferences; provided that such prefer-

ences are applied solely within the separate seniority lists.

4. In the event that a police officer's appeal of his termina-

tion to the defendant members of the Massachusetts Civil

Service Commissi=» challenges the method of termination

38a

set forth herein, the defendant members of the Civil Service

Commission are hereby restrained and enjoined from disap-

proving, invalidating or interfering with the termination on

that basis.

5. For the purpose of continuing the implementation of this

Court’s prior orders, the defendant Personnel Administrator is

ordered to place the names of all City of Boston police who are

laid off for lack of funds or abolition of position on the Civil

Service re-employment and reinstatement lists in the order in

which they are laid off. Reinstatement and re-employment of

firefighters on such lists shall be accomplished by the Person-

nel Administrator and by the Commissioner of Police in

reverse order of such layoffs and in a manner so that the

percentage of black and Spanish-surnamed officers does not

fall below 11.7 percent. The Personnel Administrator, upon

receipt of any requisition for hiring, shall certify names from

such lists prior to certifying names from any other list.

6. The parties are instructed to confer and negotiate with

respect to any further practices and procedures necessary and

appropriate for the implementation of the provisions of this

order.

/s/ Andrew A. Caffrey, Ch. J.

39a

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

PEDRO CASTRO, ET AL,

Plaintiff,

CIVIL ACTION NOS.

Vv. 70-1220-C

74-2982-C

NANCY B. BEECHER,

ET AL,

Defendants.

BOSTON CHAPTER, NAACP,

ET AL,

Plaintiffs,

CIVIL ACTION

Vv. NO. 72-3060-C

NANCY B. BEECHER, ET AL,

Defendants

UNITED STATES OF AMERICA,

Plainfiff,

CIVIL ACTION

Vv. NO. 73-269-C

CITY OF BOSTON, ET AL,

Defendants.

OPINION

August 7, 1981

CAFFREY, Ch. J.

These four cases, all of which have long since gone to judg-

ment, are before the Court on motions filed by the plaintiffs in

each case to modify prior remedial orders. All four cases raise

substantially the same legal issue, i.e. may the City of Boston

40a

in conducting reductions in force in the Boston Police and Fire

Departments decide which police officers and which firemen

to terminate on the basis of seniority as directed by M.G.L.

c. 31 § 39, or must the City of Boston maintain the percentage

of minority representation existing as of July 6, 1981 by per-

sons who are either black or hispanic.

The past history of this litigation may be summarized as

follows: The police case was begun and assigned to the Hon-

orable Charles E. Wyzanski, Jr., who tried the case and en-

tered a judgment, after which an appeal was taken to the First

Circuit and the Court of Appeals filed an opinion giving direc-

tions for further proceedings by Judge Wyzanski. Judge Wyz-

anski made additional rulings and then subsequent litigation

in the police case was assigned to and handled by the under-

signed, including the monitoring of remedial measures. (For

further background information see the undersigned’s opinion

of January 7, 1975 reported in 386 F.Supp. 1281.)

For present purposes suffice it to say that this action was

commenced in 1970 by unsuccessful black and hispanic can-

didates for appointment as Boston Police officers. Plaintiffs

claimed racial discrimination in the recruitment and certifica-

tion practices initiated by the Massachusetts Civil Service

Commission and implemented, through appointment pro-

cedures by the police forces of the City of Boston, other cities

and towns, and other appointing authorities subject to Massa-

chusetts Civil Service regulations. Following trial, Judge

Wyzanski made extensive findings, including findings that, in

1960, blacks represented 9 percent of the population of Boston

and but 2 percent of its police force and, in 1970, 16.3 percent

of the population and but 3.6 percent of the police force.

Judge Wyzanski also found that the Massachusetts Civil Serv-

ice Police Entrance Examination discriminated against

minorities who did not share mainstream white culture. Judge

Wyzanski held that plaintiffs had been discriminated against.

334 F.Supp. 943 (1971).

4la

Appeal followed to the First Circuit. The Court of Appeals

held that the civil service examinations were racially discrimi-

natory. The Court of Appeals remanded the case with

instructions that the district court enter a remedial order pro-

viding for implementation of a substantially job-related exam-

ination and providing for certification of black and hispanic

applicants on a priority basis to be determined, under guide-

lines recommended by the Court of Appeals, by the District

Court. The Court of Appeals insisted that relief “is to be more

than token.” 459 F.2d 725, 737 (1972).

On remand Judge Wyzanski approved and entered a com-

prehensive consent decree, finding that it was “just, reason-

able and in the public interest, and more likely than any other

proposed solution to give the people of the Commonwealth of

Massachusetts effective non-discriminatory, dedicated, and

honorable police forces... .” 365 F.Supp. 655, 660 (1973).

The remedial order provided, among other measures, for the

establishment of civil service certification priority pools con-

sisting of certain black and Spanish-surnamed applicants, and

for the implementation of affirmative recruitment programs

for the purpose of recruiting black and Spanish-surnamed

police applicants. Jd. at 660-662 (1973). Immediately prior

to approval of the consent decree, Judge Wyzanski had issued

an opinion exhorting the parties to reach agreement on the

provisions of the decree, in the course of which he observed:

there is a prima facia presumption that on a job-related

examination which is reasonably set to meet merely the

requirements (and not something above the require-

ments) of a police patrolman’s job, the percentage of suc-

cessful black and Spanish-speaking persons who would

choose to be patrolmen and who also would meet the re-

quirements of the job would nearly approximate the

percentage of blacks and Spanish-speaking persons in the

population of the Commonwealth. Id. at 655.

42a

In 1975 plaintiffs brought an action pursuant to the All

Writs Act for the purpose of clarifying and preserving the ef-

fect of the prior consent decree in light of proceedings which

had taken place in the Massachusetts Superior and Supreme

Judicial Courts upon applications by certain Massachusetts

cities and towns to establish the right to appoint police officers

in accordance with certain statutory preferences. The action

was assigned to the undersigned, who subsequently has super-

vised all aspects of the two consolidated police cases, including

holding that statutory preferences were not displaced by the

prior consent decree except to the extent that the preferences

must be applied within the several groups established by the

priority appointment procedures contained in the consent de-

cree. I also further requested the parties to arrive at a substi-

tute consent decree and recommended the remedy adopted in

NAACP vy. Beecher, 371 F.Supp. 507 (D.Mass.), aff'd, 504

F.2d 1017 (1st Cir. 1975). 386 F.Supp. 1281 (1975).

Thereafter, all parties entered into a consent decree, ap-

proved and entered by the Court on July 7, 1975. This con-

sent decree provides, among other measures, for the establish-

ment of priority certification groups for police applicants, for

an affirmative recruitment program for black and hispanic ap-

plicants and for procedures for administration and reporting

with respect to police entrance examinations. This decree re-

quired certification of police applicants by methods in essence

designed to facilitate the appointment by Boston and Spring-

field of one minority policeman for each white policeman, and

to facilitate the appointment by other appointing authorities

on a ratio of one to three. The decree also provided that the

method and ratios of certification provided for by the decree

shall apply to all cities and towns which have a minority popu-

lation of one percent or more until any such city or town

“achieves a complement of minorities commensurate with the

percentage of minorities within the community,” at which

43a

point further certification will be made in accordance with ex-

isting Massachusetts law. This parity target had been estab-

lished by the Court in the NAACP v. Beecher decree to which

I previously directed the parties.

On July 13, 1976, the writer approved and entered a supple-

mental consent decree. This decree contained further admin-

istrative procedures for monitoring the continuing implementa-

tion of prior decrees. This decree also exempted from further

application of the method and ratios of certification contained

in the July 7, 1975 consent decree the police departments of 81

cities and towns which had attained parity of the percentage

of blacks and hispanics in police service with the percentage of

blacks and hispanics in municipal population according to

then current census statistics. Ninety one cities and towns plus

the MBTA, MDC and Capitol Police forces remain subject to

the decree.

On June 1, 1979 I further approved and entered an agree-

ment as to the May, 1978 examination which provided, among

other measures, for the continuing applicability of the method

and ratios for certification provided for by the 1975 consent

decree and for further recruitment activities and monitoring of

the civil service examination.

As found in prior proceedings, in 1970 the Boston Police

Department employed 2805 officers. Sixty-five of these were

black or Spanish-surnamed, representing 2.3 percent. 459

F.2d at 728, 730. At the same time, the population of the city

was 16.3 percent black. Id. at 728.

Since 1973, as a result of implementation of this Court's

orders, Boston has increased the representation of minorities in

the Police Department from 2.3 percent to 11.7 percent. Pur-

suant to the methods, ratios and procedures provided for by

prior decrees, the Boston Police Department has hired, be-

tween 1974 and the present, 451 police officers, of whom 243

(53.88 percent) have been white and 208 (46 percent) have

44a

been Black, Spanish-surnamed and other minorities. How-

ever, the minority population of Boston has increased during

the intervening decade to 30 percent. The percentage of black

and hispanic officers in the Police Department, therefore, re-

mains far below the percentage of minorities in the city and

the parity level which the Court's prior remedial orders were

designed to achieve.

Against this background, the City of Boston presently plans,

and has begun to implement, massive reductions in work force

in the Boston police and fire departments for alleged reasons of

fiscal austerity.

I find on the basis of stipulations entered into by the parties

on July 29, 1981, that reductions in force now being con-

ducted, and scheduled for completion on August 18, 1981,

would reduce minority representation in the police force to

6.2% , contrasted with the 11.7% as of July 6, 1981. Similar

reductions in the Fire Department, to be completed on August

12, 1981, would leave a 9.1% minority representation, as

compared with the 14.7% level of July 6, 1981.

The litigation involving the members of the Fire Depart-

ment has followed a substantially similar course down through

the years and is described with far greater specificity than is

necessary for present purposes in an opinion filed by Judge

Freedman on February 8, 1974, reported in 371 F.Supp. 507

(1974). The firemen’s cases were later transferred from Judge

Freedman to the Honorable John J. McNaught in whose tem-

porary absence the firemen’s cases are also being handled by

the undersigned.

Given the foregoing, it should be noted that contrary to

specious arguments for counsel for the state respondents, this

motion does not constitute the filing of a new complaint, does

not warrant respondents filing an answer, and does not re-

quire a new trial. Stating the matter affirmatively, this mo-

tion is a request that this Court modify a remedial decree which

45a

it has been monitoring for many years. The Court clearly has

power to do so on the basis of both Rule 60(b)(6) of the

Federal Rules of Civil Procedure and under its inherent equi-

table power. It was so ruled by the Supreme Court of the

United States in United States v. Swift, 286 U.S. 106 (1932)

where (at page 115) the Supreme Court stated:

A Court does not abdicate its power to revoke or modify

its mandate if satisfied that what it has been doing has

been turned through changing circumstances into an in-

strument of wrong.

The standard to be followed by a district court in deciding

whether and when to exercise its inherent right to modify a

remedial decree was also stated by the Supreme Court in

United States v. Swift (at page 119) where the Court told us:

Nothing less than a clear showing of grievous wrong

evoked by new and unforeseen conditions should lead us

to change what was decreed after years of litigation.

I rule on the basis of the entire record of these cases from

1970 to date:

1. that the orders previously entered in all of these cases

were decreed after years of litigation;

2. that the massive firings claimed by municipal authorities

to be a result of the voters enacting Proposition 2s amount to

“new and unforeseen conditions” within the Swift ruling: and

3. that if this Court fails to modify the decree, as requested

by plaintiffs’ motions, then a grievous wrong would be pro-

duced by this Court’s non-action, i.e. a refusal to amend the

remedial order would allow the substantial eradication of all

46a

progress made by blacks and hispanics in securing public

employment as members of either the police or fire depart-

ments since 1970.

4. that it is obvious from the opinion of the United States

Court of Appeals for the First Circuit that using M.G.L. c. 31

§ 39 to de facto reverse all of the results granted over the past

11 years would not be tolerated by that Court. Cf. Brown v.

Neeb, C.A. No. 72-282, July 3, 1980 (N.D. Ohio); aff'd March

3, 1981 (6th Cir.).

It should be noted in view of the argument by various

respondents that the earlier remedial decrees do not talk about

terminations, that the argument first of all is factually falla-

cious in that both Judge Wyzanski and this writer have made

reference to terminations, see Section IV, part. 5(e), Consent

Decree by Wyzanski, J., 365 F.Supp. 655, 662 (1973), and

para. 19(b), Consent Decree by Caffrey, Ch. J., unreported,

July 7, 1975. Secondly, and more importantly, it is beyond

argument that, given the nature of the remedial decrees

directed by the Court of Appeals, and given the objective

thereof, namely bringing minority representation up to a level

approximating the percentage of the total population which

the minorities represent in the community, that if anything

similar to Proposition 2% had been in effect at the time that

the remedial decrees were originally entered, these decrees

would have been fashioned to make allowances for termina-

tions so that the minority representation on both departments

could have been maintained if not increased notwithstanding

the then hypothetically ongoing terminations.

Accordingly, I rule that an order should enter granting

plaintiffs’ motions to modify prior remedial orders and enjoin-

ing respondents from reducing the percentage of black and his-

panic police officers on the City of Boston police force below

the 11.7% of July 6, 1981, and enjoining the City of Boston

from reducing the number of black and hispanic members of

the Fire department below the 14.7% of July 6, 1981.

/s) Andrew A. Caffrey, Ch. J.

47a

APPENDIX E.

§ 33. Seniority; computing length of service

For the purposes of this chapter, seniority of a civil service

employee shall mean his ranking based on length of service,

computed as provided in this section. Length of service shall

be computed from the first date of full-time employment as a

permanent employee, including the required probationary

period, in the departmental unit, regardless of title, unless

such service has been interrupted by an absence from the

payroll of more than six months, in which case length of serv-

ice shall be computed from the date of restoration to the

payroll; but upon continuous service following such an

absence for a period of twice the length of the absence, length

of service shall be computed from the date obtained by adding

the period of such absence from the payroll to the date of

original employment; provided, however, that the continuity

of service of such employee shall be deemed not to have been

interrupted if such absence was the result of (1) military serv-

ice, illness, educational leave, abolition of position or lay-off

because of lack of work or money, or (2) injuries received in

the performance of duty for which compensation was paid

pursuant to chapter one hundred and fifty-two, provided that

the employee notifies the appointing authority, in writing, not

later than six months after the final payment of compensation

aforesaid that he is ready, willing, and able to do his former

work and files with said appointing authority a certificate of a

registered physician that he is able to perform the duties of his

position in an efficient manner, and is restored to the payroll.

If, as a result of a reinstatement made pursuant to section

forty-six, a person is restored to employment in a departmental

unit other than that in which he formerly held full-time

employment as a permanent employee, his length of service

shall be computed from the date of his first employment under

48a

such reinstatement, but upon continuous service in such unit

for three years or twice the length of his absence from the

payroll, whichever is greater, his length of service shall be

computed as though such earlier employment had been in the

departmental unit to which he has been reinstated.

If the employment of such full-time employee is changed

through an original or promotional appointment or transfer

from one departmental unit of the commonwealth to another

under the same appointing authority, or from one depart-

mental unit to another within the same department in a city or

town, the length of service of such employee in the unit to

which the appointment or transfer is made shall be computed

from the date which was used to compute his length of service

immediately prior to such appointment or transfer. If the

employment of such full-time employee is changed through an

original or promotional appointment from one departmental

unit of the commonwealth to another not under the same ap-

pointing authority, from one departmental unit to another not

within the same department in a city or town, from one city or

town to another, from a city or town to the commonwealth, or

from the commonwealth to a city or town, the length of serv-

ice of such employee shall be computed from the date of such

change of employment, but if the employee completes one

year of service in the new employment, from the date which

was used to compute the employee's length of service immedi-

ately prior to the change of employment.

If the employment of such full-time employee is changed by

transfer from one departmental unit of the commonwealth to

another not under the same appointing authority, from one

departmental unit to another not within the same department

in a city or town, from one city or town to another, from a city

or town to the commonwealth, or from the commonwealth to

a city or town, the length of service of such employee shall be

computed in the following manner: (1) if the transfer was

49a

made upon the request of the employee, the length of service

shall be computed from the date of such transfer, but if the

employee completes three years of service in the new employ-

ment, from the date which was used to compute the employ-

ee’s length of service immediately prior to the transfer; (2) if

the transfer was not upon the request of the employee, the

length of service shall be computed from the date which was

used to compute the employee's length of service immediately

prior to the transfer.

The length of service of a permanent employee appointed

on less than a full-time basis shall be computed from the date

of such appointment, without regard to absences from the

payroll which were not voluntary on the part of such

employee. Regardless of actual length of service, permanent

employees appointed on less than a full-time basis shall, for

purposes of determining seniority, rank below all full-time

permanent employees.

§ 39. Separation from employment; lack of work or money;

abolition of position

If permanent employees in positions having the same title in

a departmental unit are to be separated from such positions

because of lack of work or lack of money or abolition of posi-

tions, they shall, except as hereinafter provided, be separated

from employment according to their seniority in such unit and

shall be reinstated in the same unit and in the same positions or

positions similar to those formerly held by them according to

such seniority, so that employees senior in length of service,

computed in accordance with section thirty-three, shall be re-

tained the longest and reinstated first. Employees separated

from positions under this section shall be reinstated prior to the

appointment of any other applicants to fill such positions or

50a

similar positions, provided that the right to such reinstatement

shall lapse at the end of the five-year period following the date

of such separation.

Any action by an appointing authority to separate a tenured

employee from employment for the reasons of lack of work or

lack of money or abolition of positions shall be taken in accord-

ance with the provisions of section forty-one. Any such em-

ployee who has received written notice of an intent to separate

him from employment for such reasons may, as an alternative

to such separation, file with his appointing authority, within

seven days of receipt of such notice, a written consent to his

being demoted to a position in the next lower title or titles in

succession in the official service or to the next lower title or

titles in the labor service, as the case may be, if in such next

lower title or titles there is an employee junior to him in length

of service. As soon as sufficient work or funds are available,

any employee so demoted shall be restored, according to

seniority in the unit, to the title in which he was formerly em-

ployed.

Nothing in this section shall impair the preference provided

for disabled veterans by section twenty-six.

5la

APPENDIX F.

Massachusetts Acts of 1982

Chapter 190

AN ACT Establishing the City of Boston Funding Loan Act

of Nineteen Hundred and Eighty-Two And The Massachusetts

Convention Center Authority.

Section 25. Notwithstanding the provisions of any general

or special law to the contrary, the appointing authority of the

police department and the fire department of the City of Bos-

ton shall reinstate to active service as of the effective date of

this act any uniformed officer of either department who was in

service or on injured leave as of July first, nineteen hundwrd

and eighty-one, which suspension has expired, except for

disciplinary reasons consistent with chapter thirty-one of the

General Laws or in pursuit of an involuntary retirement under

section seven of chapter thirty-two of the General Laws and

shall not thereafter terminate any such officer or take any

other personnel action the effect of which would be to separate

such officer from active service in the future for lack of funds.

During the fiscal years ending June thirtieth, nineteen hun-

dred and eighty-two and June thirtieth, nineteen hundred and

eighty-three the City of Boston shall maintain in the police

department and the fire department of the City of Boston,

either in active service, training or recruitment, no fewer uni-

formed employees than the total of the number in service or on

injured leave on March twenty-fourth, nineteen hundred and

eighty-two plus the number of uniformed employees eligible

for reinstatement pursuant to this section, without regard to

the number of eligible uniformed employees who actually re-

turn to service in either department. Nothing herein shall pre-

vent an employee of either department from being placed in

52a

injured leave under the provisions of section one hundred and

eleven F of chapter fortyone of the General Laws. the mayor

shall annually request and the city council shall annually ap-

propriate sufficient amounts to the respective departments to

cover the costs imposed by this section, but nothing in this sec-

tion shall be construed to permit the officers in charge of said

departments to expend funds in excess of available appropria-

tions in violation of the city charter.