969 F.2d 1273 (1st Cir. 1992), 91-2207, Mackin v. City of Boston

Docket Nº:91-2207.
Citation:969 F.2d 1273
Party Name:Lawrence MACKIN, et al., Plaintiffs, Appellants, v. CITY OF BOSTON, et al., Defendants, Appellees.
Case Date:July 06, 1992
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 1273

969 F.2d 1273 (1st Cir. 1992)

Lawrence MACKIN, et al., Plaintiffs, Appellants,


CITY OF BOSTON, et al., Defendants, Appellees.

No. 91-2207.

United States Court of Appeals, First Circuit

July 6, 1992

Heard May 5, 1992.

Page 1274

Michael D. Powers, Charlestown, Mass., with whom Nicholas Foundas, Boston, Mass., was on brief, for plaintiffs, appellants.

Lisa J. Stark, Atty., U.S. Dept. of Justice, with whom John R. Dunne, Asst. Atty. Gen., David O. Simon, Acting Deputy Asst. Atty. Gen., and David K. Flynn, Atty., U.S. Dept. of Justice, Washington, D.C., were on brief, for the federal defendant appellee.

Albert W. Wallis, Corp. Counsel, and Stephen C. Pfaff, Asst. Corp. Counsel, Boston, Mass., on brief for the mun. defendants, appellees.

Scott Harshbarger, Atty. Gen., and William W. Porter, Asst. Atty. Gen., Boston, Mass., 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, Boston, Mass., on brief for defendant, appellee Boston Chapter, N.A.A.C.P., Inc.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and FUSTE, [*] District Judge.

SELYA, Circuit Judge.

Thirty-five white male 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.


The two original suits described in note 1, supra, resulted in the entry of the so-called Beecher decree. See 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, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (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 municipalities from continuing judicial oversight, and the like. We understand the plaintiffs to be challenging both the Beecher 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 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

Page 1275

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.

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.


It is clear that, when a judicial decree affording race-conscious relief is challenged, the decree must be subjected to strict scrutiny. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 494, 109 S.Ct. 706, 721, 102 L.Ed.2d 854 (1989) (plurality opinion); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273, 106 S.Ct. 1842, 1846, 90 L.Ed.2d 260 (1986) (plurality opinion). Such 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, --- U.S. ----, 112 S.Ct. 1948, 118 L.Ed.2d 553 (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, 107 S.Ct. 1053, 1064, 94 L.Ed.2d 203 (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.

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 Suffolk County Jail, --- U.S. ----, 112 S.Ct. 748, 760, 116 L.Ed.2d 867 (1992) (considering 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 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, --- U.S. ----, 111 S.Ct. 630, 636-37, 112 L.Ed.2d 715 (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

Page 1276

of local authority ... is a violation of the Constitution by the local authorities." Id. 111 S.Ct. at 637. An intrusion by a federal court 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 p. 1274, it 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 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. 112 S.Ct. at 760-63 (listing other bases for modifying or dissolving a consent decree in the context of an institutional reform case).


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.


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 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.

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...

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