Hammon v. Barry, s. 85-5669
| Decision Date | 14 August 1987 |
| Docket Number | 85-5671,Nos. 85-5669,85-5670,s. 85-5669 |
| Citation | 826 F.2d 73 |
| Parties | 44 Fair Empl.Prac.Cas. 869, 44 Empl. Prac. Dec. P 37,323, 264 U.S.App.D.C. 1, 56 USLW 2106 Marvin K. HAMMON, et al. United States of America, Appellant, v. Marion S. BARRY, Jr., Mayor, D.C., et al. (Two Cases). Kevin Michael BYRNE, et al. United States of America, Appellant, v. Theodore R. COLEMAN, D.C. Fire Chief, et al. District of Columbia Circuit |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (Civil Action Nos. 84-00903, 85-00782 and 85-00797).
Charles L. Reischel, Deputy Corporation Counsel, DC, with whom John H. Suda, Acting Corporation Counsel, DC was on the petition for rehearing or rehearing en banc for appellee, District of Columbia.
Joan Burt was on the petition for rehearing or rehearing en banc for appellees, Hammon, et al.
William Bradford Reynolds, Assistant Attorney General, Department of Justice, with whom Michael A. Carvin, Deputy Assistant Attorney General, David K. Flynn and Robert Delahunty, Attorneys, Department of Justice were on the memorandum in opposition to petitions for rehearing or rehearing en banc for appellant, United States of America.
Before MIKVA, STARR and SILBERMAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge STARR.
ON PETITION FOR REHEARING
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.
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. Sec. 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 Id. 1 See also Ledoux v. District of Columbia, 820 F.2d 1293 (D.C.Cir.1987).
VII's 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.
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
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 Sec. 707 of Title VII, 42 U.S.C. Sec. 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 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 Sec. 1971(c) of the Voting Rights Act, 42 U.S.C. Sec. 1971(c) (1982) () 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).
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.
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...
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