Soto-Lopez v. New York City Civil Service Com'n

• Citation: 840 F.2d 162
• Decision Date: 16 February 1988
• Docket Number: SOTO-LOPEZ and E,No. 59,D,59
• Parties: 45 Empl. Prac. Dec. P 37,822 Eduardoliezer Baez-Hernandez, Plaintiffs-Appellants, v. NEW YORK CITY CIVIL SERVICE COMMISSION; New York City Department of Personnel; Mark Lebow, individually and as Chairman of the New York City Civil Service Commission; and Juan Ortiz, individually and as Director of the New York City Department of Personnel, Defendants-Appellees, The Attorney General of the State of New York, Defendant-Intervenor-Appellee. ocket 87-7051.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 162

840 F.2d 162

45 Empl. Prac. Dec. P 37,822

Eduardo SOTO-LOPEZ and Eliezer Baez-Hernandez, Plaintiffs-Appellants, v. NEW YORK CITY CIVIL SERVICE COMMISSION; New York City

Department of Personnel; Mark Lebow, individually and as

Chairman of the New York City Civil Service Commission; and

Juan Ortiz, individually and as Director of the New York

City Department of Personnel, Defendants-Appellees,

The Attorney General of the State of New York,

Defendant-Intervenor-Appellee.

No. 59, Docket 87-7051.

United States Court of Appeals, Second Circuit.

Argued Sept. 22, 1987.

Final Submissions Sept. 25, 1987.

Decided Feb. 16, 1988.

Kenneth Kimerling, New York City (Linda Flores, Juan Cartagena, Puerto Rican Legal Defense and Educ. Fund, Inc., New York City, on the brief), for plaintiffs-appellants.

Elizabeth S. Natrella, New York City (Peter L. Zimroth, Corp. Counsel for the City of New York, Pamela Seider Dolgow, New York City, on the brief), for defendants-appellees.

Before LUMBARD, OAKES, and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

This case returns to us from the district court following (1) a judgment of this Court ruling that portions of Article V, Sec. 6, of the New York State Constitution and Sec. 85 of the New York Civil Service Law were unconstitutional, (2) the affirmance of that judgment by the United States Supreme Court, see Soto-Lopez v. New York City Civil Service Commission, 755 F.2d 266 (2d Cir.1985) ("Soto-Lopez I" ), aff'd sub nom. Attorney General v. Soto-Lopez, 476 U.S. 898, 106 S.Ct. 2317, 90 L.Ed.2d 899 (1986), and (3) a January 5, 1987 judgment of the United States District Court for the Southern District of New York ("1987 Judgment"), Richard Owen, Judge, purporting to reflect the final adjudication of this action. In accordance with the Supreme Court's affirmance of Soto-Lopez I, the 1987 Judgment declared unconstitutional the portions of the above provisions of New York law that denied to veterans who were not residing in New York State when they entered the armed services the civil service eligibility bonus points that were given to veterans who Plaintiffs appeal from so much of the 1987 Judgment as (1) denied permanent injunctive relief, contending principally that that denial did not comply with the mandate of this Court in Soto-Lopez I, and (2) denied them backpay. Defendants New York City Civil Service Commission, et al. (collectively the "City defendants"), urge us either (a) to affirm the denial of injunctive relief principally on the ground that such relief is unnecessary because they have been complying with the mandate of Soto-Lopez I since March 1985, approximately one month after that decision was rendered, or (b) to rule that any permanent injunction should not bar their use of current eligibility lists compiled prior to March 1985 in reliance on the unconstitutional provisions. They urge us to affirm the denial of backpay both on the ground of immunity because, in denying veterans' preference points to plaintiffs, the City defendants had merely followed the then-presumptively valid provisions of state law, and on the ground that plaintiffs have not demonstrated their individual eligibility for the positions to which they sought appointment.

were so residing; the 1987 Judgment ordered that plaintiffs Eduardo Soto-Lopez and Eliezer Baez-Hernandez be granted veterans' preference points if they are qualified to receive them and be given appointments with retroactive seniority if they meet other requirements for appointment.

On its face, the 1987 Judgment does not comply with the mandate of this Court in Soto-Lopez I. Accordingly, we vacate the judgment in part and remand for further proceedings leading to the entry of permanent injunctive relief against the City defendants and to the final adjudication of plaintiffs' claims.

I. BACKGROUND

A. The Invalidation of the Past-Residency Requirements

The background of the present litigation is set forth in detail in Soto-Lopez I, 755 F.2d 266, and will be but briefly summarized here. The state-law provisions at issue granted bonus points to otherwise qualified civil service position applicants who were veterans of the United States armed services, but only if they were residents of New York when they were inducted into the armed services ("past-residency requirements"). N.Y. Const. art. V, Sec. 6; N.Y.Civ.Serv.Law Sec. 85 (McKinney 1983). Plaintiffs, veterans who had applied for positions covered by civil service, were denied veterans' bonus points on their civil service examinations because they had not been residing in New York when they entered the armed services. They commenced the present action (1) to have the past-residency requirements declared unconstitutional, (2) to enjoin the enforcement of those provisions against otherwise qualified veterans, and (3) to compel the City defendants to award plaintiffs veterans' preference points, adjust their standing on job eligibility lists, and appoint them to positions for which they had applied, with seniority and backpay.

The district court dismissed the complaint on the ground that the residency-at-time-of-induction distinction had been upheld against constitutional challenge in August v. Bronstein, 369 F.Supp. 190 (S.D.N.Y.) (three-judge court), aff'd mem., 417 U.S. 901, 94 S.Ct. 2596, 41 L.Ed.2d 208 (1974). In Soto-Lopez I, this Court reversed, ruling that August v. Bronstein had been implicitly overruled by Zobel v. Williams, 457 U.S. 55, 102 S.Ct. 2309, 72 L.Ed.2d 672 (1982), and that the residency distinction violated plaintiffs' constitutional right to equal protection and right to travel. We remanded to the district court (1) for entry of a judgment permanently enjoining defendants from denying veterans' bonus points to "otherwise qualifying veterans solely on the ground that they were not New York residents at the time of their induction into the United States armed forces," 755 F.2d at 282, and (2) for further proceedings to determine any issues relating to plaintiffs' requests for individual relief, including "whether either plaintiff should receive immediate appointment, if so to what position, and whether awards of backpay or retroactive seniority are appropriate, as well as issues relating to defendants' The State of New York ("State"), which had intervened in the action to defend the constitutionality of the challenged constitutional and statutory provisions, appealed Soto-Lopez I to the Supreme Court. In July 1985, the district court entered an order that, inter alia, "permanently enjoined" the City defendants from enforcing the residency-at-time-of-induction requirements "pending the outcome of the [State's] appeal." In June 1986, the Supreme Court affirmed our judgment that the past-residency requirements were unconstitutional. 106 S.Ct. 2317.

defenses of immunity," id. at 281; see id. at 281-82.

B. The 1987 Judgment

Following the decision of the Supreme Court, the district court entered the 1987 Judgment, which contains no injunction against enforcement of the past-residency requirements. That Judgment, after declaring the pertinent New York provisions unconstitutional "in accordance with the opinion of the United States Supreme Court," provides as follows:

1. Defendants New York City Civil Service Commission, New York City Department of Personnel, Mark Lebow, and Juan Ortiz ("City, defendants" [sic ] shall award plaintiffs veterans credits pursuant to section 85 of the Civil Service Law if plaintiffs meet the requirements of section 85 Law [sic ] other than the requirement that they were "a resident of [the State of New York] at the time of entrance into the armed forces;

2. If plaintiff Soto-Lopez invokes his entitlement to veterans credits on the eligible list from examination # 5003 for the position of housing caretaker or any other eligible list on an examination taken after the filing of the Complaint on February 22, 1983, and if with these additional credits plaintiff Soto-Lopez would have been appointed or promoted on these eligibility lists, City Defendants shall appoint or promote plaintiff Soto-Lopez with back seniority as of the date that he would have been appointed or promoted with veterans credits, provided he is otherwise qualified for the position;

3. If plaintiff Baez-Hernandez invokes his entitlement to veterans credits on the eligibility list from examination # 8144 for the position of O.C. Research Assistant or on the eligibility list from examination # 0153 for Assistant Accountant, or on any other examination taken after the filing of the Complaint on February 22, 1983, and if with these additional credits plaintiff Baez-Hernandez would have been appointed or promoted on these eligible lists, City Defendants shall appoint or promote plaintiff Baez-Hernandez with back seniority as of the date that he would have been appointed or promoted with veterans credits, provided he is otherwise qualified for the position.

1987 Judgment at 2-3 (bracketed phrase and lack of end quote in original). The remainder of the 1987 Judgment provides that plaintiffs are entitled to an award of attorney's fees and costs "[a]s prevailing parties," in an amount to be agreed by the parties or, failing such an agreement, determined by the district court.

The record leading to the entry of judgment on these terms is sparse. Papers submitted to the district judge were not formally filed with the district court and do not appear in the record on appeal. These papers, copies of some of which were provided to this Court after oral argument of this appeal, included at least one proposed order and letter of argument from each group of parties, i.e., the plaintiffs, the City defendants, and the State. Apparently no factual presentations were made, and no evidentiary hearings were held either with respect to appropriate limitations on the scope of injunctive relief or with respect to the entitlement of the plaintiffs to individual relief.

The...