Garcia v. Lawn, 85-6221

Citation805 F.2d 1400
Decision Date15 December 1986
Docket NumberNo. 85-6221,85-6221
Parties42 Fair Empl.Prac.Cas. 873, 42 Empl. Prac. Dec. P 36,743 Darnell GARCIA, Plaintiff-Appellant, v. John C. LAWN, D.E.A. Administrator, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Mark Borenstein, Tuttle & Taylor, Inc., Los Angeles, Cal., for plaintiff-appellant.

Joseph Butler, Asst. U.S. Atty., Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before WALLACE and SCHROEDER, Circuit Judges, and B. THOMPSON, * District Judge.

SCHROEDER, Circuit Judge.

The district court denied the appellant's claim for injunctive relief from allegedly unlawful retaliation by the United States Drug Enforcement Administration (DEA) against the appellant for exercising his Title VII rights. He appeals. We must consider first an issue of mootness and then consider what may constitute irreparable harm in a Title VII injunction case against the United States.

In 1983 the appellant, Darnell Garcia, won a favorable Title VII decision from the Attorney General on his claims of discrimination by the DEA on the basis of national origin. The relief awarded included back pay, removal of adverse material from his records, and attorney's fees.

In 1985 appellant filed this action in district court to require the government to comply with the Attorney General's decision. Within two months after filing this suit, the DEA ordered him transferred from Los Angeles to Detroit. After negotiation efforts failed, he amended his complaint to request injunctive relief to forestall his transfer pending administrative review of the merits of his retaliation claim. He argued that the transfer, which would deprive him of his post of preference, was retaliation for his earlier successful pursuit of his Title VII rights. Such retaliation is unlawful under 42 U.S.C. Sec. 2000e-3(a).

The district court denied the preliminary injunction. It said, however, that the appellant had made a strong case of retaliation, and that the appellant had demonstrated a likelihood of success on the merits. The district court pointed out that the DEA had requested authority for the transfer immediately after the petitioner filed this suit so that the "rationale behind this transfer is suspect." The district court also pointed out that DEA appeared to have greater need for Garcia in Los Angeles than in Detroit, and that the transfer was contrary to the DEA's " 'post of preference' policy by which the DEA has promised to make every effort to assign its agents to posts selected by the agents. Detroit was not selected by Garcia as a preferred post."

Under the customary test for injunctive relief, which requires the plaintiff to demonstrate "either (1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in its favor," In reviewing the hardship which would result from the government's action, the district court focused on the effects upon Garcia and his family. It did not discuss the adverse effects retaliatory conduct would have on the exercise of Title VII rights by other government employees, a factor which courts and commentators have deemed important in considering the appropriateness of injunctive relief under Title VII. See e.g., Holt v. Continental Group, Inc., 708 F.2d 87, 91 (2d Cir.1983), cert. denied, 465 U.S. 1030, 1038, 104 S.Ct. 1294, 1316, 79 L.Ed.2d 695, 712 (1984); Hyland v. Kenner Products Co., 10 FEP 367, 378 (S.D.Ohio 1974); B. Schlei & P. Grossman, Employment Discrimination Law 1063 (2d ed. 1983).

Apple Computer, Inc. v. Formula International, Inc., 725 F.2d 521, 523 (9th Cir.1984), the district court would have granted the relief sought. It did not do so, however, because the defendant was the government rather than a private employer. It held that the Supreme Court's decision in Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974), required an extraordinary showing of irreparable harm for an injunction to issue and that Garcia had failed to make such a showing.

In this appeal the appellant argues that the standards of Sampson v. Murray should not apply to Title VII cases and that, even if they do, the burden of irreparable harm has been met. The government raises a question of mootness which we must first consider.

MOOTNESS

During the pendency of petitioner's injunction action, the deadline for his transfer to Detroit passed. His applications for stays from the district court and this court were denied, and consequently the DEA fired him for his refusal to report to his new post. The firing took place while this appeal was pending, and the government has moved to dismiss the appeal on the theory that the appeal is moot because the appellant is no longer employed by the DEA.

The test for mootness of an appeal is whether the appellate court can give the appellant any effective relief in the event that it decides the matter on the merits in his favor. If it can grant such relief, the matter is not moot. The test goes back at least to 1895, when the Supreme Court stated:

[W]hen, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.

Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 133, 40 L.Ed. 293 (1895). As we reaffirmed very recently, a case is moot when events " 'prevent the appellate court from granting any effective relief even if the dispute is decided in favor of the appellant.' " Holloway v. United States, 789 F.2d 1372, 1373 (9th Cir.1986), quoting Matter of Combined Metals Reduction Co., 557 F.2d 179, 187 (9th Cir.1977). In the words of an authoritative modern treatise on this subject, a case is not moot if the court has the "ability to undo the effects of conduct that was not prevented by the time of the decision." 13A Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d Sec. 3533.3, at 278-79 (1984).

The question thus becomes whether we can now give appellant effective relief which would "undo" the effects of the alleged retaliatory action, i.e., conditioning appellant's employment upon a move to Detroit. What has happened since the district court's order is that the defendant has completed the acts which it threatened at the time the injunction was sought. This, however, does not render the matter moot. "It has long been established that where a defendant with notice in an injunction proceeding completes the acts sought to be enjoined the court may by mandatory injunction restore the status quo." Porter v. Lee, 328 U.S. 246, 251, 66 S.Ct. 1096, 1099, 90 L.Ed. 1199 (1946). The Porter rule has The result which the appellant sought in the district court, and continues to seek here, is the continuation of his employment with the DEA in Los Angeles. An order reinstating him to his prior position would have precisely that effect, returning matters to the status quo that existed at the time the original claim for injunction was filed.

                been applied in a variety of contexts to defeat mootness arguments.   See, e.g., National Forest Preservation Group v. Butz, 485 F.2d 408, 410-11 (9th Cir.1973) (appeal from denial of injunction against land swap not mooted by virtue of fact that land has been transferred to another party in the litigation);  Padilla v. Ackerman, 460 F.2d 477, 479 n. 1 (9th Cir.1972) (appeal from denial of injunction against transfer of state prisoners out of a drug treatment program not moot even though transfer has occurred, because district court had power to restore the status quo by ordering the prisoners returned to the treatment program)
                

In arguing that this appeal is moot, the government appears to suggest that the court lacks authority to order reinstatement once the government has fired an employee. Such a proposition is contrary to the provisions of Title VII itself. Section 706(g), 42 U.S.C. Sec. 2000e-5(g), expressly provides for injunctive relief, including reinstatement. 1

Flexibility in fashioning remedies under Title VII is an important keystone of the administration of the Act. The wording of section 706(g), its legislative history, and subsequent Supreme Court pronouncements make this clear. The Court has observed, for example:

... Congress in Sec. 706(g) vested broad equitable discretion in the federal courts to "order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay ..., or any other equitable relief as the court deems appropriate." The legislative history supporting the 1972 amendments of Sec. 706(g) of Title VII affirms the breadth of this discretion.

Franks v. Bowman Transportation Co., 424 U.S. 747, 763-64, 96 S.Ct. 1251, 1263-64, 47 L.Ed.2d 444 (1976) (citation omitted).

The government also suggests that because the precise action sought to be enjoined is no longer a threatened discharge, but an actual discharge, the case is moot because an injunction against transfer is no longer appropriate. Yet, courts of equity have broad discretion in shaping remedies. See, e.g., 27 Am.Jur.2d Equity Sec. 103, at 624 (1966)("The power of equity is said to be coextensive with the right to relief; it is as broad as equity and justice require."). See also Jones v. SEC, 298 U.S. 1, 17-18, 56 S.Ct. 654, 658-659, 80 L.Ed. 1015 (1936) ("... after a defendant has been notified of the pendency of a suit seeking an injunction against him, even though a temporary injunction be not granted, he acts at his peril and subject to the power of the court to restore the status, wholly irrespective...

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