-
USCA1 Opinion
July 20, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 91-2207
LAWRENCE MACKIN, ET AL.,
Plaintiffs, Appellants,
v.
CITY OF BOSTON, ET AL.,
Defendants, Appellees
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ERRATA SHEET
ERRATA SHEET
The opinion of the Court issued on July 6, 1992, is
corrected as follows:
On page 10, line 6, insert "no" between "by" and "means"
July 6, 1992
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No. 91-2207
LAWRENCE MACKIN, ET AL.,
Plaintiffs, Appellants,
v.
CITY OF BOSTON, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, U.S. District Judge]
___________________
_________________________
Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Fuste,* District Judge.
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Michael D. Powers, with whom Nicholas Foundas was on brief,
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for appellants.
Lisa J. Stark, Attorney, United States Dept. of Justice,
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with whom John R. Dunne, Assistant Attorney General, David O.
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Simon, Acting Deputy Assistant Attorney General, and David K.
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Flynn, Attorney, United States Dept. of Justice, were on brief,
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for the federal appellee.
Albert W. Wallis, Corporation Counsel, and Stephen C. Pfaff,
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Assistant Corporation Counsel, on brief for the municipal
appellees.
Scott Harshbarger, Attorney General, and William W. Porter,
_________________ __________________
Assistant Attorney General, on brief for the state appellee.
Toni G. Wolfman, Richard M. Brunell, Foley, Hoag & Eliot,
________________ ___________________ ____________________
Alan Jay Rom, and Lawyers Committee for Civil Rights Under Law,
____________ _____________________________________________
on brief for appellee Boston Chapter, N.A.A.C.P., Inc.
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_________________________
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*Of the District of Puerto Rico, sitting by designation.
SELYA, Circuit Judge. Thirty-five white male
SELYA, Circuit Judge.
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applicants for positions in the Boston Fire Department (the
Department) filed suit in the district court on September 14,
1989. The plaintiffs alleged that a bevy of named defendants,
including the City of Boston, various municipal officials, and
the state personnel administrator, discriminated against them on
the basis of race both in constituting an eligibility list and in
making appointments to positions within the Department by means
of the list.1 The district court granted summary judgment for
the defendants. We affirm.
I. BACKGROUND
I. BACKGROUND
The two original suits described in note 1, supra,
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resulted in the entry of the so-called Beecher decree. See
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Boston Chapter, NAACP, Inc., v. Beecher, 371 F. Supp. 507, 520-23
___________________________ _______
(D. Mass.), aff'd, 504 F.2d 1017 (1st Cir. 1974), cert. denied,
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421 U.S. 910 (1975). Since 1974, the hiring of firefighters in
much of Massachusetts has been circumscribed by this decree.
Over time, the decree has been supplemented by several consent
decrees designed to implement administrative procedures for
offering examinations, establishing eligibility lists, releasing
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1The United States joined the defendants in opposing
plaintiffs' requests for relief. The government's standing stems
from the district court's grant of its motion to consolidate
plaintiffs' suit with two suits filed in the early 1970s, one of
which was initiated by the United States, concerning the entry-
level exam then used by the state and various municipalities,
including Boston, to screen applicants for firefighters'
positions. In addition, the Boston Chapter of the National
Association for the Advancement of Colored People (NAACP)
intervened as a defendant. It, too, opposed the plaintiffs'
requests.
3
municipalities from continuing judicial oversight, and the like.
We understand the plaintiffs to be challenging both the Beecher
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decree and the consent decrees entered to effectuate it. In
general, however, we will refer to the decree in the singular,
since it is the Beecher decree that is the cynosure of the
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parties' arguments.
Unlike some 30-odd other fire departments which
heretofore met the goals of the decree and gained release from
its constraints, the City of Boston remains under its aegis. In
1987, the state personnel administrator, acting on behalf of the
Department, conducted a written examination for the position of
firefighter. The personnel administrator then compiled an
eligibility list which gave preferential standing to blacks and
Spanish-surnamed individuals.2 Despite the fact that all 35
appellants earned perfect scores on the 1987 examination, they
were ranked below several minority candidates who earned lower
scores. As a result, appellants were disadvantaged with respect
to vacant firefighter positions.
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2The eligibility list was assembled according to the
procedures specified in the decree. See Beecher, 371 F. Supp. at
___ _______
522-23. Briefly stated, those procedures stipulated that the
candidates placed on the list must have passed a properly
validated qualifying examination and otherwise have met all
eligibility requirements for the position. Beyond that point,
the list was to consist of one minority candidate (i.e., black or
Spanish-surnamed) for each white candidate. The decree
contemplated the continued use of statutory preferences ceding
pride of place to veterans, children of deceased or permanently
disabled firefighters, and the like, see, e.g., Mass. Gen. Laws
___ ____
Ann. ch. 31, 26, 40 (1992), even if those persons achieved
lower test scores than other qualified white candidates.
4
In the district court, appellants sought a salmagundi
of relief, including an order placing their names at the top of
the certified eligibility list and an injunction prohibiting
continued preferential treatment of black and Spanish-surnamed
persons in connection with available firefighting jobs. They
contended that Boston had met the decree's objectives because, in
1989, the Department had achieved a percentage of black and
Spanish-surnamed members higher than the percentage of such
minorities in Boston's general population at the time the decree
was originally entered. Appellants also claimed that, to the
extent anything remained to be done, the decree's ameliorative
purposes could be satisfactorily accommodated without any
affirmative action because the 1987 entrance examination for
firefighters was race-neutral. Finally, appellants charged that
the decree swept too broadly and, therefore, should not be
enforced.
In due course, both sides moved for summary judgment.
The district court denied the plaintiffs' motion and granted the
defendants' motion. At that point, plaintiffs switched gears,
moving for reconsideration on completely different grounds. The
district court denied the motion. On appeal, plaintiffs protest
both the entry of summary judgment and the ensuing refusal to
reconsider.
II. THE LEGAL LANDSCAPE
II. THE LEGAL LANDSCAPE
It is clear that, when a judicial decree affording
race-conscious relief is challenged, the decree must be subjected
5
to strict scrutiny. See City of Richmond v. J.A. Croson Co., 488
___ ________________ _______________
U.S. 469, 494 (1989) (plurality opinion); Wygant v. Jackson Bd.
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of Educ., 476 U.S. 267, 273 (1986) (plurality opinion). Such
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scrutiny requires a reviewing court to vouchsafe that the relief
is both warranted by a strong state interest and narrowly
tailored to further that interest. See Stuart v. Roache, 951
___ ______ ______
F.2d 446, 449 (1st Cir. 1991), cert. denied, 60 U.S.L.W. 3689
_____ ______
(1992). It cannot be gainsaid that, when a race-conscious
employment initiative is reasonably necessary to remedy the
effects of past discrimination practiced by a public employer, a
compelling state interest exists. See United States v. Paradise,
___ _____________ ________
480 U.S. 149, 167 (1987) (plurality opinion); Stuart, 951 F.2d at
______
449. In this case, appellants do not argue that the original
finding of discrimination was flawed. Rather, their focus is on
the continuing need for affirmative action, and particularly, the
need for the type and kind of affirmative action required by the
Beecher decree.
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Along those lines, we believe that district courts
should be flexible in considering requests for relaxation of, or
release from, decrees which were initially established to bring
about needed institutional reforms. See Rufo v. Inmates of
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Suffolk County Jail, 112 S. Ct. 748, 760 (1992) (considering
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motion to modify a consent decree). In the context of civil
rights litigation, a central consideration in determining whether
to dissolve structural remedies is whether the agency in question
has come into compliance with constitutional requirements. Put
6
another way, an inquiring court should ask whether the goals of
the litigation, as incorporated in the outstanding decree, have
been completely achieved. Board of Educ. v. Dowell, 111 S. Ct.
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630, 636-37 (1991). Moreover, federal courts, in mulling whether
to relax or abandon their supervision over the operation of local
governmental units, should take federalism concerns into account,
ever mindful that the "legal justification for displacement of
local authority . . . is a violation of the Constitution by the
local authorities." Id. at 637. An intrusion by a federal court
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into the affairs of local government should be kept to a bare
minimum and not be allowed to continue after the violation has
abated and its pernicious effects have been cured.
To the extent that the plaintiffs here are seeking
relaxation of one or more consent decrees, see supra pp. 2-3, it
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must be remembered that "a party seeking modification of a
consent decree bears the burden of establishing that a
significant change in circumstances warrants a revision of the
decree." Rufo, 112 S. Ct. at 760. That party "may meet its
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initial burden by showing either a significant change in factual
conditions or in law." Id. Dissolution or relaxation of a
___
consent decree may be justified in a variety of circumstances,
for example, when "changed factual conditions make compliance
with the decree substantially more onerous." Id.; see also id.
___ ___ ____ ___
at 760-63 (listing other bases for modifying or dissolving a
consent decree in the context of an institutional reform case).
III. ANALYSIS
III. ANALYSIS
7
It is against this backdrop that we turn to appellants'
asseverational array. We treat serially with appellants' three
main arguments. We then deal in one fell swoop with the
exhortations contained in the motion for reconsideration.
A.
A.
__
Positing that the decree contemplates no more than the
achievement of minority representation in the Department
commensurate with the percentage of minorities resident in Boston
at the time the decree was entered, appellants assert that the
Department has already reached this modest pinnacle. Even
assuming that the factual premise anent the Department's present
composition is true, this postulate tortures the language of the
decree, disregards the parties' consistent practice while
operating under the decree, and defies common sense.
First, the relevant language of the decree is most
naturally read as referring to contemporaneous population
figures: "As a city or town achieves a complement of minorities
commensurate with the percentage of minorities within the
community, certification will be made according to existing
Massachusetts law." Beecher, 371 F. Supp. at 523. Had the
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district court and the existing parties intended to embody in the
decree a stipulation that a community would be released from the
prescribed procedures upon reaching a complement of minorities
commensurate with the percentage of minorities within the
community in 1974, we feel confident that the decree would have
said so.
8
Second, the undisputed evidence concerning practice
under the decree indicates beyond hope of contradiction that
applications for the release of municipalities from the decree's
burdens have universally been guided by reference to
contemporaneous population statistics. Few things evidence a
decree's meaning more persuasively than an immutable, decade-old
pattern of past practice under the decree, consensually engaged
in by all sides in the underlying litigation that produced the
decree.
Third, common sense suggests that it would be whimsical
to peg parity ratios to obsolete population figures in this sort
of context. The logical extension of appellants' argument is
that a locality could not be freed from the decree's requirements
even if its minority population dropped precipitously, to the
point where the percentage of minority firefighters in service
far exceeded the current percentage of minorities in the relevant
population, as long as the percentage of minority firefighters
remained lower than the 1974 percentage. We think it is
farfetched to assume that the district court or the parties
intended the decree to work in so quirky a fashion.
In addition to the obvious practical problems with
using outdated statistics, there are also sound legal reasons for
reading the terms of the decree to refer to current population
levels. One implication of the recent Supreme Court school
desegregation decisions is that federal courts, at least in the
minerun of civil rights and institutional reform cases, have no
9
choice but to make decisions about the maintenance, modification,
or dissolution of structural remedial orders by referring to the
most current population statistics readily available. After all,
knowledge of demographic shifts is essential for determining
whether patterns of minority representation in state institutions
and organizations reflect state action, which has constitutional
implications, or private preferences, which, generally, do not.
See, e.g., Freeman v. Pitts, 112 S. Ct. 1430, 1437-38, 1447-48
___ ____ _______ _____
(1992). We think that the plaintiffs' effort to cling to 1974
statistics, notwithstanding the availability of supervening
census data, contradicts Freeman's teachings.
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In sum, achieving parity in 1974 terms, without more,
was not a particularly significant datum. In any event, it did
not serve, in 1989, as a legally sufficient basis for
defenestrating the Beecher decree.
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B.
B.
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Next, appellants contend that the decree was satisfied
because the qualifying examination that they passed was validated
under EEOC guidelines and was, therefore, nondiscriminatory.
This argument overlooks the language of the decree itself. Even
a cursory reading makes it crystal clear that validated
examinations are not an end in themselves but merely a means
toward achieving the decree's actual objective: rough parity (to
remedy the effects of past discrimination). See, e.g., Beecher,
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371 F. Supp. at 522 ("Subsequent to obtaining the results of a
valid examination, the defendant . . . shall promptly commence
10
certifying applicants as eligible for appointment [in the
manner directed by the decree] . . . ."); id. at 522-23
___
(specifying that the "hiring procedure shall apply to all future
eligibility lists established subsequent to a valid firefighter
entrance examination"). The argument to the contrary is a mere
heuristic.3
C.
C.
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The appellants also hawk the idea that, even if the
goals of the Beecher decree have not yet been accomplished, the
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decree is constitutionally infirm because it sweeps too broadly.
This argument is by no means a new one. Over 15 years ago, we
found the decree to be narrowly tailored toward the achievement
of its legitimate objectives. See Beecher, 504 F.2d at 1027
___ _______
(judging the decree to be "carefully limited in extent and
duration"). To be sure, in the intervening years the tests for
determining whether remedial race-conscious relief is, in fact,
narrowly tailored have been refined and clarified. See, e.g.,
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3The district court, noting that the test's validity was
disputed, correctly ruled that the issue was not material. Even
if the examination was nondiscriminatory, as appellants alleged,
the paucity of minority representation in the Department
betokened a failure to achieve the central goal of the decree,
thus negating any argument that the purposes of the decree had
been achieved. Summary judgment was, therefore, appropriate.
See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
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(1986) (stating that "the mere existence of some alleged factual
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dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment" absent the existence of a
genuine issue of material fact); Mesnick v. General Elec. Co.,
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950 F.2d 816, 822 (1st Cir. 1991) ("Not every discrepancy in the
proof is enough to forestall a properly supported motion for
summary judgment; the disagreement must relate to some genuine
issue of material fact."), petition for cert. filed, 60 U.S.L.W.
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3689 (U.S. March 9, 1992).
11
Paradise, 480 U.S. at 177-79 (plurality opinion); Stuart, 951
________ ______
F.2d at 453-55. But, that process of refinement and
clarification does nothing to call the adequacy of the instant
decree into serious question.
We will not wax longiloquent. In determining whether
or not an order is narrowly tailored, a significant measure of
deference is owed to the trial court's conclusion that a
particular kind of relief is essential to heal a constitutional
wound. See Paradise, 480 U.S. at 183 (plurality opinion). The
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district court, unlike the court of appeals, "has firsthand
experience with the parties and is best qualified to deal with
the 'flinty, intractable realities of day-to-day implementation
of constitutional commands.'" Id. at 184 (citation omitted).
___
While a district court's discretion is not unbridled, a reviewing
court, in assessing whether a remedy is narrowly tailored, must
bear in mind that the fashioning of a structural decree, like the
decision as to whether to modify or dissolve it, is at bottom an
exercise of equitable power. See Freeman, 112 S. Ct. at 1444.
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Given this deferential standard of review, appellants are
whistling past the graveyard albeit whistling rather loudly
in inveighing against the reach of the decree's remedial
provisions.
In assessing an overbreadth challenge to an order
directing race-conscious relief in the context of public
employment, a court should consider, inter alia, the extent to
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which (i) the beneficiaries of the order are specially
12
advantaged, (ii) the legitimate expectancies of others are
frustrated or encumbered, (iii) the order interferes with other
valid state or local policies, and (iv) the order contains (or
fails to contain) built-in mechanisms which will, if time and
events warrant, shrink its scope and limit its duration. The
Beecher decree passes this test with flying colors.
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In this case, only qualified minority candidates are
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specially advantaged; no minority candidate is placed on the
eligibility list unless he or she has attained a passing score on
the entrance examination. This is an important indicium of
narrow tailoring. See Stuart, 951 F.2d at 454. Relatedly, the
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decree does not require that minority aspirants be appointed, nor
does it dispense with the statutory preferences mandated by state
law. Thus, the decree gives only a limited advantage, not a
guarantee of employment, to minority applicants. This, too, is a
significant factor. See Johnson v. Transportation Agency, 480
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U.S. 616, 638 (1987) (approving affirmative action plan because,
among other things, rather than mandating quota hiring, it
"merely authorize[d] that consideration be given to affirmative
action concerns when evaluating qualified applicants"). As a
result of these features, it can appropriately be said that the
Beecher decree "is not being used simply to achieve and maintain
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racial balance, but rather as a benchmark against which the court
could gauge . . . efforts to remedy past discrimination." Local
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28, Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 477-
_____________________________________ ____
13
78 (1986) (plurality opinion).
Moreover, the failure to appoint more high-scoring
white applicants under the decree disturbs no legitimate, firmly
rooted expectations on the part of those applicants. The record
shows that, when appellants sought appointment to the Department,
there were many white candidates with statutory preferences and
perfect tests scores, and few firefighters' vacancies. Hence,
irrespective of the decree, appellants could not reasonably have
felt assured that they would be appointed. This factor, too,
counsels in favor of upholding the decree. See Stuart, 951 F.2d
___ ______
at 454.
Finally, the decree's life is limited, remaining in
force only until its requirements have been met. See Beecher,
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371 F. Supp. at 523 (providing for release from appointment
process mandated by the decree "[a]s a city or town achieves a
complement of minorities commensurate with the percentage of
minorities within the community"). Limitations of this sort are
crucial factors in deflecting overbreadth challenges. See
___
Stuart, 951 F.2d at 454. Indeed, the proof of the present
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pudding is that, since 1974, more than fifty percent of the
communities originally affected by the decree have already been
freed from further oversight.
Mindful of these realities, we conclude that the
Beecher decree is tailored with sufficient precision to withstand
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the appellants' imprecations.
D.
D.
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14
On the motion for reconsideration, appellants
unsuccessfully attempted to raise two additional arguments. They
claimed, first, that the Department's achievements under the
decree should be measured not by reference to the census figures
for black and Spanish-surnamed individuals in the general
population, but by reference to the census of such persons age 18
or older, thus dovetailing more snugly with the relevant labor
pool. They also suggested that blacks and Spanish-surnamed
individuals should be considered separately; and that, therefore,
black aspirants should not be entitled to a continuing preference
as Boston had exceeded the decree's goals with respect to black
firefighters.
We need not dwell on the substance of these arguments.
It is settled law that, once a motion to dismiss or a motion for
summary judgment has been granted, the district court has
substantial discretion in deciding whether to reopen the
proceedings in order to allow the unsuccessful party to introduce
new material or argue a new theory. See Mariani-Giron v.
___ _____________
Acevedo-Ruiz, 945 F.2d 1, 3 (1st Cir. 1991); United States v. 5
____________ ______________ _
Bell Rock Road, 896 F.2d 605, 611 (1st Cir. 1990); Appeal of Sun
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Pipe Line Co., 831 F.2d 22, 25 (1st Cir. 1987), cert. denied, 486
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U.S. 1055 (1988); Polyplastics, Inc. v. Transconex, Inc., 827
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F.2d 859, 864 n.4 (1st Cir. 1987); Pagan v. American Airlines,
_____ __________________
Inc., 534 F.2d 990, 992-93 (1st Cir. 1976). Consequently, we
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will overturn the trial court's decision on such a matter only if
an appellant can persuade us that the refusal to grant favorable
15
reconsideration was a clear abuse of discretion. Sun Pipe Line,
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831 F.2d at 25; Pagan, 534 F.2d at 993.
_____
Here, there is not so much as a whisper of a hint of an
intimation of an abuse of discretion. The statistics upon which
appellants belatedly sought to rely (in order to show a more
precisely defined labor pool) were available to them all along.
Moreover, those statistics, fairly read, likely tell a different
story than appellants intend to convey. The most pertinent
"labor pool" information that can be gleaned from the 1980 census
figures is the head count of black and Spanish-surnamed
individuals who were ten years of age, or older, in 1980 a
number which would give some approximate indication of the number
of black and Spanish-surnamed individuals who, in 1989, were old
enough to be considered for firefighters' positions.4 Based on
those figures, a continuing lack of parity in the Department is
statistically evident.
Appellants' other "new" argument that the percentage
figures for black and Spanish-surnamed individuals should be
dismembered, so that once parity with the percentage of blacks in
the labor force is achieved, the decree's guidelines for
certifying blacks to the eligibility list should be lifted
fares no better. Once again, the argument relied on information
that was available well before the time suit was started.
Moreover, such an approach clearly contradicts the format of the
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4Under state law, see Mass. Gen. Laws Ann. ch. 31, 58
___
(1992), firefighters must be at least 19 years of age to qualify
for appointment.
16
original litigation, which constituted combined classes of black
and Spanish-surnamed persons, not separate black and Spanish-
surnamed classes. It also contradicts the clear intent of the
decree and an unbroken skein of preexisting practice under the
decree's terms.
When the losing party seeks reconsideration of an
adverse judgment on a neoteric theory, factors such as due
diligence and likelihood of success must weigh heavily in the
balance. Where, as here, the movants' newly emergent arguments
seem weak and the movants have offered no viable excuse for not
advancing those arguments in a timely fashion when the parties
cross-moved for summary judgment, we are unable to discern any
principled basis on which the district court's denial of the
motion for reconsideration might be overturned. In this case, as
in most similarly postured cases, the district court's refusal to
allow appellants the opportunity to revisit the barn after the
horse has departed cannot be considered an abuse of discretion.
Affirmed.
Affirmed.
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17
Document Info
Docket Number： 91-2207
Filed Date： 7/20/1992
Precedential Status： Precedential
Modified Date： 9/21/2015