Hammon v. Barry ( 1987 )

ON PETITION FOR REHEARING

STARR, Circuit Judge:

This petition for rehearing raises the issue whether the panel’s opinion in Hammon v. Barry, 813 F.2d 412 (D.C.Cir.1987), has been undermined by the Supreme Court’s recent decision in Johnson v. Transportation Agency, Santa Clara County, California, — U.S. -, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987). After careful reflection, we conclude for the reasons that follow that Johnson does not alter the result in this case.

I

In Hammon, the panel, over dissent, struck down the hiring provisions of the District of Columbia’s affirmative action plan (AAP) as violative of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982 & Supp III 1985). We concluded that a predicate of discrimination must exist before race-conscious measures may lawfully be employed in a hiring plan. Hammon, 813 F.2d at 420-25. We further concluded that, once the threshold requirement of discrimination is met, the remedy must be tailored to fit the violation. Id. at 425-26. After analyzing the record in this case, which was before the District Court on stipulated facts and adjudicated by that court on summary judgment, we determined that the necessary predicate had not been established. Id. at 426-28. In addition, we held that even if the predicate existed, the hiring scheme created by the plan was not tailored to cure the “violation” because potential alternatives to the race-conscious regime were not considered. Id. at 428-30.

Shortly after our opinion issued, the Supreme Court rendered its decision in Johnson. In that case, the Court upheld in the face of an attack under Title VII a county transportation agency’s promotion of a female over a marginally better qualified male to a skilled position (a road dispatcher in the agency’s Roads Division) pursuant to a voluntarily promulgated affirmative action plan. The plan at issue in that case authorized the agency to consider the sex of a qualified applicant as one factor in making promotions to positions within a traditionally segregated job classification in which women had been significantly underrepresented.

Invoking Johnson, the District of Columbia now maintains that our “basic premise” —that discrimination is a predicate to remediation — has been “demolished” by the Supreme Court in one fell swoop. District’s Petition at 1-2. We disagree. In our view, Johnson does not sweep so broadly as to eviscerate the carefully crafted body of existing law under Title VII.

Guided by its decision in Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), the Johnson Court held that for an affirmative action plan to withstand scrutiny under Title VII, consideration of the race or sex of applicants must be “justified by the existence of a ‘manifest imbalance’ that reflect[s] underrepresentation of women [or minorities] in ‘traditionally segregated job categories.’ ” Johnson, 107 S.Ct. at 1452 (quoting Weber, 443 U.S. at 197, 99 S.Ct. at 2724). The Court explained:

The requirement that the “manifest imbalance” relate to a “traditionally segregated job category” provides assurance both that sex or race will be taken into account in a manner consistent with Title VIPs purpose of eliminating the effects of employment discrimination, and that the interests of those employees not benefitting from the plan will not be unduly infringed.

Id.¹ See also Ledoux v. District of Columbia, 820 F.2d 1293 (D.C.Cir.1987).

The Court was thus clear in relating the-existence of employment discrimination (and goal of eliminating its effects) to the bedrock Congressional purposes informing Title VII. Johnson went on to provide guidance to lower courts in this sensitive and delicate area on the fact-specific task of determining whether the requisite “manifest imbalance” exists. In jobs that require no special expertise, the Court stated, “a comparison of the percentage of minorities or women in the employer's work force with the percentage in the area labor market or general population is appropriate.” Id. (citations omitted). For jobs that require special training, on the other hand, “the comparison should be with those in the labor force who possess the relevant qualifications.” Id. (citation omitted).

Applying those standards to the facts before it, the Johnson Court concluded that the “manifest imbalance” predicate was clearly shown in the job classification at issue. Specifically, in the job category in question, women were “egregiously underrepresented”; indeed, “none of the 238 positions was occupied by a woman.” Id. 107 S.Ct. at 1454 (emphasis in original).² As Justice O’Connor described it, “at the time the affirmative action plan was adopted, there were no women in the agency’s skilled craft positions.” Id. at 1465 (O’Connor, J. concurring) (emphasis in original). The inference of discrimination, as she graphically detailed the situation before the Court, arose from the “inexorable zero.” Id.³

II

A

Before we embark on our analysis of Johnson’s effects, we pause to address a preliminary issue. Late in this process — indeed following oral argument on the rehearing petition — we directed the parties to brief the issue, raised by the court sua sponte, whether the United States has standing to challenge the constitutionality of the AAP’s hiring provisions. In its response, the United States contends that § 707 of Title VII, 42 U.S.C. § 2000e-6, which authorizes the Attorney General to bring an action whenever he has “reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by [Title VII],” authorizes the Justice Department to raise ancillary constitutional claims under the Fifth and Fourteenth Amendments as well. In support of its position, the United States argues that it would be incongruous to permit the Attorney General to pursue statutory violations, but not constitutional violations, when the alleged offenses are based on the same set of facts and the statutory and constitutional jurisprudence in the area are closely interwoven.

In addition to this common-sense argument, the United States draws an analogy to a line of cases in which the Supreme Court has held that § 1971(c) of the Voting Rights Act, 42 U.S.C. § 1971(c) (1982) (authorizing the Attorney General to bring an action whenever he has “reasonable cause to believe that any person is about to engage in any act or practice which would deprive any other person of any right or privilege secured by subsection (a) or (b) of this section”) empowers the Attorney General to bring suit to protect the voting rights of black citizens guaranteed by the statute (under subsection (a) or (b)) and by the Fourteenth and Fifteenth Amendments. Louisiana v. United States, 380 U.S. 145, 151, 85 S.Ct. 817, 821, 13 L.Ed.2d 709 (1965); United States v. Mississippi, 380 U.S. 128, 136-38, 85 S.Ct. 808, 812-13, 13 L.Ed.2d 717 (1965); United States v. Alabama, 362 U.S. 602, 80 S.Ct. 924, 4 L.Ed.2d 982 (1960).

The District of Columbia, on the other hand, argues that the United States lacks standing to enforce directly the rights secured to individuals by the Constitution. The District buttresses its argument with decisions of three circuits holding that, without explicit authorization by Congress, the United States may not bring suit on behalf of third parties to enjoin violations of the Constitution’s substantive provisions. See United States v. City of Philadelphia, 644 F.2d 187 (3d Cir.1980), reh’g denied, 644 F.2d 207 (3d Cir.1981); United States v. Mattson, 600 F.2d 1295 (9th Cir. 1979); United States v. Solomon, 563 F.2d 1121 (4th Cir.1977).

In light of (1) the manifest importance of this issue; (2) its novelty in this circuit; and (3) the venerable principle that courts should avoid “ ‘questions of a constitutional nature unless absolutely necessary to a decision of the case,’ ” Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (citation omitted), we decline, on reflection, to pass on the issue of the United States’ standing. We are buoyed in that conclusion by the fact that the question has been raised so late in the litigation’s cycle. As a result, we would be called upon either to wrestle with this troublesome issue without the benefit of full argument or to delay this litigation even further by setting the case down yet a third time for oral argument. By virtue of this act of self-restraint, a posture that well becomes the least dangerous branch of our government, there should be no doubt whatever that our decision in this case is grounded solely on the law of Title VII. With this in mind, we return after this detour to the primary question raised in the petition for rehearing: whether Johnson has undermined the majority opinion in Hammon.

B

On its face, the present case stands in stark contrast to the situation in Johnson. Here, the District of Columbia Fire Department has been hiring blacks for entry-level positions at an average rate of almost 50 percent per year since 1969. By Title VII’s hourglass, eighteen years is a long time. But the news of late is even cheerier from Johnson’s perspective. Since 1981, an average of over 75 percent of those hired each year as entering firefighters have been black.⁴ Not surprisingly, the result of these hiring patterns is light years away from the situation that prevailed in Johnson. Indeed, as of April 1984, 37 pereent of the District’s firefighting force was black.

The District Court nonetheless asserted, in conclusory fashion, that vestiges of discrimination remain in the Fire Department. In arriving at this determination, the trial court arguably made two “factual findings.” First, the court “found” the undisputed fact that the Fire Department was officially segregated in the early 1950’s. Hammon v. Barry, 606 F.Supp. 1082, 1086-87 (D.D.C.1985). See Hammon, 813 F.2d at 428 n. 32. The relevance of that “finding” to a modern-day hiring remedy is not at all clear.⁵ But even accepting arguendo the relevance of the point, it should go without shying that we fully accept that which is undisputed and thus consider it a “given” that officially sanctioned discrimination prevailed in the Fire Department in the 1950’s. The rather obvious and substantial temporal gap between the time of the Korean Conflict (at the conclusion of Harry Truman’s Presidency and General Eisenhower’s ascension to power) and the present day, however, suggests that something more recent should serve as a predicate for remedial action right now. However, notwithstanding the dissent’s fervent assertion that insidious discriminatory practices at the Fire Department continued into the 1970’s, see Dissent at 91, 92-93, the District Court made no findings to that effect. As the dissent takes pains to remind us time and again, fact-finding is the province of the trial court, and it is to that court that we explicitly allowed the parties to return for litigation of whether invidious discrimination infects the Fire Department. Hammon, 813 F.2d at 432 n. 37; see infra note 9. And thus we are brought, more relevantly, to the District Court’s determination that “there still exist some vestiges of the aforementioned past discrimination.” Hammon, 606 F.Supp. at 1087.

This latter “finding” was based expressly, and solely, on the “current statistics” in the Fire Department. Id. The District Court simply recited the racial composition in the Fire Department, without any sort of analysis of the raw percentages or explanation of how those percentages demonstrate vestiges of the generation-old violation. One is put in mind of the old saw as to the veracity, or lack thereof, of statistics. Indeed, the District Court’s rather mechanical incantation of statistics — the bulk of which are relevant only to discrimination in promotions (an issue not before us) — does not withstand the least rigorous sort of analysis.

Under Johnson’s teaching, the percentage of blacks in the District’s Fire Department is to be compared with the percentage of blacks in the area labor force. There should be no mistaking the correct benchmark in this case: the relevant labor force consists of persons 20 to 28 years of age in the Washington metropolitan area, not just within the confines of the Nation’s capital. The reason is that it is undisputed that approximately half of the District’s entry-level firefighters have hailed from the suburbs. According to the 1980 Census, only 29.3 percent of the statistically relevant metropolitan area population is black. In view of the fact that the Fire Department work force has a greater percentage of blacks than the black percentage in the area labor force, the District Court’s conclusion that vestiges of discrimination remain in the Fire Department is plainly in error.⁶ See Fed.R.Civ.Pro. 52(a); cf. Turner v. Safley, — U.S. -, -- n. *, 107 S.Ct. 2254, 2264-65, n. **, 96 L.Ed.2d 64 (1987); Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982).

Indeed, even if we employ the applicant pool as a surrogate for the area labor force,, as the District Court did, the District Court’s “finding” nonetheless remains entirely without foundation. As we elaborated previously, see Hammon, 813 F.2d at 427-28, the average percentage of black hires each year since 1981 (over 75.5 percent) is greater than the percentage of blacks in either of the two applicant pools referred to by the District Court (74.53 percent in 1980 and 64.6 percent in 1984).⁷

As a result, only if the percentage of blacks in the Fire Department is compared to the percentage in the District of Columbia’s population — without regard to the fact that approximately half of the new firefighters are hired from the suburbs — is there even arguably an “imbalance.” However, as there is no suggestion that the District acted in a discriminatory fashion by hiring from the entire metropolitan area, we decline to engage in an entirely artificial comparison between the percentage of blacks in the District’s Fire Department and its population.⁸ See generally Hammon, 813 F.2d at 426-28 & 432 n. 1.

In sum, there is no manifest imbalance in the District’s Fire Department; indeed, there is manifestly no imbalance at, all. It could hardly be plainer that the District’s Fire Department is not burdened with the clogged channels of opportunity that characterized the employment situation in Johnson (and in Weber)⁹

C

There is more. The operation of Santa Clara’s affirmative action plan differed in a critical respect from that of the District. In Johnson, the Court repeatedly stressed that the plan set aside no specific number of positions for minorities or women; instead, the Santa Clara plan authorized consideration of ethnicity or sex as one factor for evaluating qualified candidates. Id. 107 S.Ct. at 1447 & 1454-57. Indeed, the plan at issue in that case expressly stated that “ ‘[t]he “goals” established for each Division should not be construed as “quotas” that must be met.’ ” Id. at 1455 (quoting Appendix 64). The Court thus likened Santa Clara’s plan to the “Harvard Plan,” noted with approbation by Justice Powell in University of California Regents v. Bakke, 438 U.S. 265, 316-19, 98 S.Ct. 2733, 2761-63, 57 L.Ed.2d 750 (1978). As Justice Powell emphasized in Bakke, that plan allowed race to be deemed a “plus” in the college admissions process, but it emphatically did not insulate the individual from comparison with all other candidates. Id. Above all, the Harvard Plan did not embody a strict racial (or other) quota.

The District’s plan, on the other hand, employs precisely that which neither Harvard nor Santa Clara County embraced— the tell-tale, single-factor, rigid quota. Under the District’s approach, each entering class of firefighters must be composed of at least 60 percent blacks. Here, we have a hard-core, cold-on-the-docks quota, nothing less. This is certainly nothing remotely akin to either the Harvard Plan or the Santa Clara plan. Indeed, setting the passing score of its unvalidated entry-level test (administered in 1980 and 1984) at a very humble level, see Hammon, 813 F.2d at 429, and utilizing no other screening criteria (beyond a medical examination and background check), the District’s hiring decisions are based almost entirely on a mandatory racial quota.¹⁰ This regime stands in complete contrast to the plan at issue in Johnson, in which “supervisors were to consider a host of practical factors” in hiring decisions and where the hiring goal for women in the job category at issue was set at the modest level of approximately six percent for the plan’s initial year. 107 S.Ct. at 1454.

Indeed, the District’s plan flies in the teeth of Johnson’s express caveat that “had the [agency’s plan] simply calculated imbalances in all categories according to the proportion of women in the area labor pool, and then directed that hiring be governed solely by those figures, its validity fairly could be called into question.” Id. In the absence of additional screening considerations, the District’s plan dictates “mere blind hiring by the numbers.” ¹¹ It thus bears no resemblance to the “moderate, flexible, case-by-case approach” embodied in the plan at issue in Johnson. Id. at 1424, 1457.

Ill

Quite apart from its very different facts, Johnson also squares with our analysis of the law of Title VII. Indeed, our earlier opinion was expressly informed by Weber, which broods omnipresently over the .Court’s decision in Johnson. See Hammon, 813 F.2d at 423-24; Johnson, 107 S.Ct. at 1449. Johnson fully shares with Weber, Bakke, and Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), what we described in our earlier opinion as “the salient characteristic of impaired access by certain (but by no means all) minorities to specific, identifiable educational, commercial, or job opportunities.” Hammon, 813 F.2d at 423 (emphasis in original). See also supra note 9. In our view, this reality of impaired access (or predicate of discrimination) animated the Court’s approval of the affirmative action drawn into question in those cases. The need to remedy discrimination figured prominently in Johnson, just as the “race-preference plan in Weber was ‘remedial’ in the broad sense of opening up to minorities theretofore closed channels of employment opportunities.” Id. at 424-25. Indeed, the Court in Johnson emphasized that the Santa Clara plan “directed that sex or race be taken into account for the purpose of remedying underrepresentation.” 107 S.Ct. at 1453 (emphasis added).

Therefore, while it provides further definition to the “predicate of discrimination” requirement, Johnson does not, as the District would have it, drastically alter the legal landscape so as to eliminate this long-standing requirement. Far from it, Johnson says not a word to suggest that it was working such a radical revolution in the law of Title VII. As co-laborers in the non-political branch, with its ancient culture of stability and predictability, we are loathe to assume that the Supreme Court was suddenly turning its back on all that it had said and done for so many years and in so many different cases, some of which were written in the rather fresh ink of the prior Term. Courts are reluctant, wisely so, to discern in Congressional activity an implied repeal of statutes, and we are similarly well-advised not to discover sub silentio overrulings in the more cloistered environs of the Article III branch, especially in matters of such moment to the law and to the Nation. Our institutional reluctance to swallow the District’s “here today, gone tomorrow” reading of Johnson is reinforced by the clarity with which the Johnson Court indicated that it was not sanctioning an “anything goes” approach to race-conscious action; a manifest imbalance in a traditionally segregated job category, we are told repeatedly by the Court, is the condition precedent to this sort of race-conscious action. In short, it is our view that our earlier holding — that a predicate of discrimination is required before an employer may lawfully employ a race-conscious remedial device — is fully in keeping with Johnson’s clear holding that a “manifest imbalance” in a “traditionally segregated job category” must exist before an employer may engage in preferential hiring (or promotions).

Finally, Johnson does nothing to disturb the longstanding requirement that the remedy crafted to cure a violation be tailored to fit the violation.¹² Just last Term, the Court in Local 28, Sheet Metal Workers v. EEOC, — U.S. -, 106 S.Ct. 3019, 3050, 92 L.Ed.2d 344 (1986), reaffirmed the truism that the “tailoring” requirement fully obtains in the Title VII context. The Court in that case expressly warned that a lower court “should also take care to tailor its orders to fit the nature of the violation it seeks to correct.” Id.

To be sure, the Johnson Court articulated the tailoring requirement in different terms than those employed in Sheet Metal Workers, but it also made quite clear that an affirmative action plan must not “unnecessarily trammel[] the rights of male [or nonminority] employees.” 107 S.Ct. at 1455 (emphasis added). The Johnson Court drew this requirement directly from Weber, in which the affirmative action plan’s validity rested on the fact that it did not “unnecessarily trammel the interests of the white employees” or “create an absolute bar to the advancement of white employees,” and was “not intended to maintain a racial balance,” but instead was a temporary measure designed to “eliminate a manifest racial imbalance.” 443 U.S. at 208, 99 S.Ct. at 2730. This, it seems to us, spells out the very “tailoring” requirement embodied in a plethora of Title VII law that we elaborated in our earlier opinion. See Hammon, 813 F.2d at 425-26. That longstanding requirement, in our view, remains firmly entrenched in the law of Title VII.

We concluded previously that, because available race-neutral alternatives were not considered, the District’s race-based hiring methods were not properly tailored to its remedial purposes. Hammon, 813 F.2d at 428-30. The District has come forward with no persuasive argument to the contrary. Its use of the AAP thus stands-condemned under Title VII for this reason as well.

For the foregoing reasons, the petition for rehearing is

Denied.

1 .In Justice O’Connor's view, as set forth in her concurring opinion in Johnson, affirmative action is permissible under Weber "only as a remedial device to eliminate actual or apparent discrimination or the lingering effects of this discrimination." Id. at 1461. Reiterating the Supreme Court's determination in Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 1847, 90 L.Ed.2d 260 (1986), that societal discrimination alone is insufficient to justify a racial classification, Justice O’Connor reasoned that, in order to justify sex- or race-preferences, an employer must "point to evidence sufficient to establish a firm basis for believing that remedial action is required, [such as] a statistical imbalance sufficient for a Title VII prima facie case____” Id. at 1462. Although the majority rejected Justice O’Connor’s prima facie case standard, id. at 1452-53 & nn. 10-11, it did not quarrel with her conclusion that, although an employer need not admit or prove that it had acted discriminatorily, evidence of the effects of its past or current discrimination is a prerequisite to lawful race-conscious employment decisions.

2 . Women constituted 36.4 percent of the area labor market and, in 1970, approximately 5 percent of the local labor pool of skilled craft workers.

3 . It should not go unnoticed that in its feverish reading of Johnson, the dissent glides over the "manifest imbalance” requirement without ever coming to grips with the fact that, in contrast to the "inexorable zero" in Johnson and the 1.83 percent representation in Weber, 37 percent of the District’s firefighting force is black and an average of over 75 percent of new hires since 1981 have been black.

4 . The dissent charges that it is "ridiculous" for us to look to the percentage of blacks hired since 1981 because in exhausting the list of applicants who passed the 1981 test as directed by the Office of Human Rights, “[t]he District was doing what the majority now forbids it from doing.” Dissent at 92. The charge is unfounded. In our previous opinion, we explicitly noted that as an alternative to use of a race-based quota, “the District could have exhausted the 1984 eligibility list.” Hammon, 813 F.2d at 430. In addition, the charge is irrelevant, because the legality of the District’s hiring methods prior to the AAP is not before us; the challenge that we address is only to the quota-regime under the AAP. Finally, we do not, as the dissent implies, condemn the District’s overall aim of avoiding discrimination against minorities. To the contrary, we only find impermissible the means — a rigid quota based strictly on race — that the District has chosen to achieve that aim.

5 . The dissent’s condemnation of what it perceives as "plantation” practices raises a fundamental conceptual issue (in addition to problems of appellate fact-finding, see infra text at 86 & note 9). Upon analysis, the "history” of segregative practices goes not to a hiring remedy at all, but to the entirely different (and thus far unlitigated) issue of whether vestiges of a prior, invidiously dual regime remain within the Fire Department. That is, the remedy for segregated institutions is to eliminate such invidious practices root and branch; thus the remedy for the pre-Brown educational regime in many States was not to admit black schoolchildren to school (for education was already being provided), but to cease and desist from making school assignments on racial lines. So too in the employment setting, the remedy for unlawful segregation practices is to obliterate those practices so that a "dual” Fire Department system will become a truly unitary system. Therefore, even if the dissent is right in its creative fact-finding, a hiring remedy is misplaced to the extent that the issue is one of segregative employment (as opposed to hiring) practices. The issue in hiring challenges is, instead, whether there is a manifest imbalance in a traditionally segregated job category.

6 . We cannot fail to note, in addition, that the District Court, in invoking the "vestiges of discrimination" talisman, failed entirely to address the question whether those "vestiges” amounted to the requisite "manifest imbalance.” For this reason as well, we are constrained to conclude that legal error infected the District Court's analysis.

7 . The dissent nevertheless faults us for not employing the applicant flow data. The difficulty with the dissent’s approach, however, is that it seeks to use recent applicant flow data to examine the overall composition of a department which has obviously been in existence (and engaged in hiring) for many years. The key analytically is to examine what hiring was done in the particular year(s) in question for which one is using applicant flow statistics. That is, there must be a nexus between applicant flow and the pertinent part of the hiring regime (or results thereof) under attack. Cf. United States v. County of Fairfax, 629 F.2d 932, 940 (4th Cir. 1980), cert. denied, 449 U.S. 1078, 101 S.Ct. 858, 66 L.Ed.2d 801 (1981). See generally B. Schlei & P. Grossman, Employment Discrimination Law 1348-51 (2d ed. 1983). Obviously, if an applicant pool was historically 10 percent black, and the employer’s workforce was approximately 10 percent black, then a latter-day upsurge in the minority component of the applicant flow would not serve suddenly to condemn what had previously been racially neutral practices. There must be balance, logic and common sense in these sensitive cases, which requires fact-finding and analysis of whether the recent applicant flow is representative of that in past years or whether it is skewed (by recent recruiting campaigns, for example, targeted at minority applicants). See id.; Hammon, 813 F.2d at 427-28 n. 31. Without the benefit of such fact-finding and analysis, we cannot accept a naked comparison of the percentage of blacks in the 1980 and 1984 applicant pools with the overall percentage of blacks in the entire Fire Department.

8 . Indeed, at last report, both traffic and commerce were moving freely between the District of Columbia and the thriving suburbs of Maryland and Virginia. To our knowledge, no Brandenburg Gate has yet been erected to prevent suburbanites from Silver Spring, Oxen Hill, or Alexandria from seeking employment in the D.C. Fire Department. And the much ballyhooed six-month residency requirement requires new hires to quit their former haunts and move into the District within six months after being hired. Until conditions change, we will not bury our heads in the sand, ostrich-like, by ignoring the metropolitan area whence the entry-level firefighters actually come.

9 . The same situation — clogged opportunities for admissions and government contracting — prevailed in the other two watershed cases, University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) and Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), as more fully recounted in our earlier opinion. Hammon, 813 F.2d at 423-24. While not confessing that which could not be believed — that the Fire Department here in Washington is a bastion of clogged hiring opportunities, a garden of noxiously “inexorable zeros” — the District rehearses, at length, its contention that discrimination existed in its Fire Department. District’s Petition at 6-13. In our opinion, we responded in detail to the District's arguments. Hammon, 813 F.2d at 426-28. We can discern no warrant for revisiting those points here.

In addition, counsel for the Hammon plaintiffs argues, as she did previously, that pervasive discrimination exists now in the Fire Department, and that the Office of Human Rights administrative proceedings (discussed in detail in our prior opinion) were infected with fraud and misrepresentations. Hammon Plaintiffs’ Petition at 3, 11-15. The dissent suggests that discrimination is indeed the order of the day. That is not, however, for us to say at this juncture. Instead, we reiterate our previously stated conclusion that our holding expressly leaves the door open for this issue to be raised before the District Court. Hammon, 813 F.2d at 432 n. 37.

10 . At oral argument, counsel for the District of Columbia represented that the passing rate of a recent administration of the exam was much lower. This fact, obviously, was not before the District Court and, moreover, is irrelevant to the validity of the affirmative action plan under review, i.e., the plan approved by the District Court on the basis of the facts before it.

11 . Contrary to the dissent's assertion, apparently drawn out of the ether, that the quotas in the District’s AAP were designed merely to reflect the racial composition of applicants who passed the 1984 exam, see Dissent at 89-90, the parties’ Statement of Stipulated Material Facts expressly states that "The AAP was intended to achieve compliance with D.C. Law § 1-63,” which mandates that every agency of the District of Columbia government develop an affirmative action plan, with proportional representation of the available D.C. workforce (which is defined as persons in the District between the ages of 18 and 65) as its goal. Defendant’s Appendix at 21. The District Court likewise observed that the AAP was created "in furtherance of the mandate of [D.C. Law § 1-63].” Hammon, 606 F.Supp. at 1087-88.

In our earlier opinion, we held that the goal of a racially balanced workforce was an inadequate ground upon which to support the AAP. Hammon, 813 F.2d at 430-31. The District now contends that Johnson validates the use of such a goal. In Johnson, the affirmative action plan's long-term goal was "to attain a work force whose composition reflected the proportion of minorities and women in the area labor force." 107 S.Ct. at 1447. It was critical, however, that the long-term goal acted only as a "benchmark for measuring progress in eliminating underrepresentation.” Id. at 1453. The employer in that case had "no intention of establishing a work force whose permanent composition is dictated by rigid numerical standards." Id. at 1457; see also id. at 1454. Indeed, Justice O’Connor in concurring characterized the goal as "merely a statement of aspiration wholly without operational significance.” Id. at 1464.

In the District's plan, in contrast, D.C. Law 1-63’s goal of proportional representation played a pivotal role in shaping the AAP. According to the 1980 Census, 64.1 percent of individuals between the ages of 18 and 65 residing in the District are black. The AAP required that each academy class consist of at least 60 percent blacks. That percentage, mirroring almost exactly the percentage of blacks in the "workforce” defined by D.C. Law 1-63 (which, of course, represented only a portion of the area labor force), compels the conclusion that the goal of D.C. Law 1-63 was not merely aspirational, but to the contrary served as a guide for actual hiring decisions. This the Johnson Court did not countenance.

12 . The District argues that in United States v. Paradise, - U.S. -, 107 S.Ct. 1053, 1070 n. 28, 94 L.Ed.2d 203 (1987), the Supreme Court held that alternatives to race-conscious measures need not be considered as long as no equally efficacious remedies are apparent. We emphatically disagree. In that case, the plurality concluded that, in light of the employer’s blatant history of manifest foot-dragging and egregious discrimination, it was doubtful that an effective alternative to the race-conscious order existed. Id. Nothing in Paradise suggests that the Court abruptly jettisoned the hallowed value of stability in the law and abolished the theretofore well-settled requirement that alternatives to race-based measures be considered and, if possible, employed.