Boston Chapter, NAACP v. Beecher, s. 81-1642
| Decision Date | 11 May 1982 |
| Docket Number | 81-1656,Nos. 81-1642,81-1650 and 81-1651,s. 81-1642 |
| Citation | 679 F.2d 965 |
| Parties | 28 Fair Empl.Prac.Cas. 1657, 29 Empl. Prac. Dec. P 32,794 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. |
| Court | U.S. Court of Appeals — First Circuit |
E. David Wanger, Boston, Mass., with whom John F. McMahon, and Angoff, Goldman, Manning, Pyle & Wanger, P. C., Boston, Mass., were on brief, for intervenor, appellant Local 718 in Case No. 81-1642.
Frank J. McGee, Marshfield, Mass., on brief for intervenor-appellant Boston Police Patrolmen's Association, Inc.
Thomas A. Barnico, Asst. Atty. Gen., Government Bureau, Dept. of the Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for the State defendants-appellants in Case No. 81-1651.
Marc S. Seigle, Sp. Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for the State defendants-appellants in Case No. 81-1656.
James S. Dittmar, Boston, Mass., with whom Berman, Dittmar & Engel, P. C., Judith Bernstein Tracy, and Peggy A. Wiesenberg, Boston, Mass., were on brief, for plaintiffs-appellees.
Before CAMPBELL, BOWNES and BREYER, Circuit Judges.
This case arises from a conflict between a statutorily established seniority system mandating layoffs on a last hired, first fired basis and court orders insulating a percentage of minorities from such system. Shortly after the July 1981 beginning of fiscal 1982, the Police and Fire Department of the City of Boston embarked upon a program of massive reductions in force, allegedly precipitated by budgetary restrictions imposed by "Proposition 21/2." During the six-year period prior to the commencement of the layoffs, both departments had been steadily increasing the percentage of 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, 1 roughly half of the blacks and hispanics hired would be laid off. To prevent this substantial undoing of the progress made in integrating blacks and hispanics into the police and fire departments, 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 service 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 necessary to begin by tracing the prior proceedings. 2
Plaintiffs, unsuccessful black and hispanic candidates for appointment as Boston police officers, commenced the police action in 1970. They claimed racial discrimination in violation of 42 U.S.C. §§ 1981 and 1983 in connection with the recruitment and certification practices established by the Massachusetts Civil Service Commission and implemented, through appointment procedures, by the Boston Police Department as well as other appointing authorities, 3 including other Massachusetts 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 percent 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, including plaintiffs, who did not share "prevailing white culture." Id. at 943. It enjoined the Commission from issuing further certifications based on these examinations.
We held on appeal that the examinations were racially discriminatory, and remanded the case with instructions that the district court enter a remedial order requiring a nondiscriminatory, 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 police officers in the near term" and insisted that relief fashioned by the district court "is to be more than token." Id. at 737.
On remand, after observing that unlike most consent decrees, this one had been preceded by full hearings, findings of fact, conclusions of law and several opinions both of the district and appellate courts, the district court approved a comprehensive consent decree, finding that it was "just, reasonable, 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 recruitments 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 insofar as the preferences must be applied within the several groups of applicants established by the decree. 386 F.Supp. 1281, 1285 (D.Mass.1975). It urged that the parties agree upon a substitute consent decree and recommended they follow the one adopted in the fire case, Boston Chapter, NAACP, Inc. v. Beecher et al., 371 F.Supp. 507 (D.Mass.1974), aff'd, 504 F.2d 1017 (1st Cir.), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975). Id. at 1286. 4
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 applicants by methods essentially designed to facilitate the appointment 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 Massachusetts law. 5 The same parity target had already been set in the fire case.
On July 13, 1976, and on June 1, 1979, the district court approved 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 supervision the police departments of cities and towns that had attained the parity target according to then current census statistics.
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 Procedure 60(b) to modify prior remedial orders. Following state funding legislation that led to a rescinding of the layoff program for fiscal 1981, plaintiffs requested that the court continue 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 (Caffrey, C. J.) heard plaintiffs' motion together with a similar motion in the fire case. On August 7, 1981, the opinion and order issued enjoining the Boston Police Department and Fire Department from reducing the percentage of minority officers below the level existing at the commencement of the layoff program.
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 appointing 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...
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