Massachusetts Ass'n of Afro-American Police, Inc. v. Boston Police Dept.

• Decision Date: 02 June 1992
• Docket Number: AFRO-AMERICAN,No. 92-1120,92-1120
• Citation: 973 F.2d 18
• Parties: 59 Fair Empl.Prac.Cas. (BNA) 1037, 59 Empl. Prac. Dec. P 41,700 MASSACHUSETTS ASSOCIATION OFPOLICE, INC., et al., Plaintiffs, Appellees, v. The BOSTON POLICE DEPARTMENT, et al., Defendants, Appellees. Boston Police Superior Officers Federation, Intervenor, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 18

973 F.2d 18

59 Fair Empl.Prac.Cas. (BNA) 1037,

59 Empl. Prac. Dec. P 41,700

MASSACHUSETTS ASSOCIATION OF AFRO-AMERICAN POLICE, INC., et

al., Plaintiffs, Appellees, v. The BOSTON POLICE DEPARTMENT, et al., Defendants, Appellees.

Boston Police Superior Officers Federation, Intervenor, Appellant.

No. 92-1120.

United States Court of Appeals, First Circuit.

Heard June 2, 1992.

Decided Aug. 19, 1992.

James F. Lamond with whom Alan J. McDonald and McDonald, Noonan and Lamond, Newton, Mass., were on brief for intervenor-appellant, Boston Police Superior Officers Federation.

Jonathan M. Albano with whom Marianne Meacham, Bingham, Dana & Gould, Alan J. Rom, and Lawyers Committee for Civil Rights, Boston, Mass., were on brief for plaintiff, appellee, Massachusetts Ass'n of Minority Law Enforcement Officers.

William W. Porter, Asst. Atty. Gen., with whom Scott Harshbarger, Atty. Gen., Boston, Mass., was on brief for plaintiff, appellee, Personnel Adm'r of the Massachusetts, Dept. of Personnel Adm'n.

Before SELYA, Circuit Judge, RONEY, ^* Senior Circuit Judge, and PIERAS, ^** District Judge.

PER CURIAM:

The appeal in this racial discrimination case involving the employment and promotion of police officers in the Boston Police Department (BPD) must be dismissed because, to the extent the appellant, Boston Police Superior Officers Federation (Federation), has standing, the challenge to the district court's amendment to a prior consent decree is not ripe for judicial review at this time.

An understanding of the litigation that led to the original consent decree and its amendment in 1991 is of interest but not necessary to the decision on this appeal. The Massachusetts Association of Minority Law Enforcement Officers (MAMLEO), ¹ filed the original action in 1978 against the BPD and the Department of Personnel Administration (DPA) alleging unlawful employment, compensation, and promotional practices based on race in violation of, inter alia, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In 1980, the district court approved a consent decree to which all parties agreed.

The consent decree certified a class consisting of all present and future Black officers in the BPD, and established goals and timetables for the promotion of specified numbers of qualified Black officers to the rank of sergeant. The decree also required that the examinations for promotion be validated in accordance with the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607.1 et seq., and required the BPD to provide training for all persons planning to take promotional examinations, with equal access to minority applicants.

After certain intervening procedures and modifications, the MAMLEO challenged the DPA's administration of state-wide police promotional examinations scheduled for June 19, 1991 for sergeants, lieutenants, and captains. After court rulings which, among other things, permitted the DPA to administer the 1991 exams as scheduled, the parties jointly filed an Agreement to Amend the Consent Decree to settle MAMLEO's challenge to the 1991 exams.

The Federation, an organization representing sergeants, lieutenants, and captains in the police force, was allowed to intervene for the limited purpose of opposing the amendment to the consent decree. The Federation challenges the amendment on this appeal, as it did in the district court, to the extent that it extends the terms of the decree to include promotional examinations for the positions of lieutenant and captain. The Federation maintained that the initial decree and a 1985 modification governed promotions to sergeant positions only and did not cover promotions to lieutenant and captain. It argues that the district court exceeded its authority in applying the consent decree to lieutenants and captains. The merits of that contention are not relevant to our decision that the case is not ripe for review.

Under the terms of the amended decree, the BPD would limit the promotions to the ranks of lieutenant and captain from the eligible lists established from the results of the June 1991 examinations. The BPD had set forth its estimates of the numbers of promotions that its staffing needs and budget constraints would permit during the next year. It agreed that such constraints "will permit the promotion of no more than twenty-five (25) officers to the rank of captain and six (6) officers to the rank of lieutenant and agree[d] that it will not promote more than that number of lieutenants and captains from the 1991 eligible list without plaintiff's consent, or, in the absence thereof, leave of Court." ²

The Federation challenges the consent decree on behalf of its members who took the 1991 examinations, were put on promotional lists for lieutenant and captain, and might be bypassed because of the consent decree without being fairly considered for an appointment. Until the situation arises, however, where there is a likelihood of a vacancy for an appointment over and above the number of appointments (25 captains, 6 lieutenants) specifically exempted under the consent decree, there is no justiciable issue ripe for decision of whether the consent decree would indeed result in such a person not being fairly considered.

Ripeness doctrine is grounded in both Article III concepts and discretionary reasons of policy. The central concern is whether the case involves a merely hypothetical dispute. "The question of ripeness turns on the 'fitness of the issues for judicial decision' and 'the hardship to the parties of withholding court consideration.' " Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 201, 103 S.Ct. 1713, 1720, 75 L.Ed.2d 752 (1983) (citation omitted), quoted in W.R. Grace & Co. v. United States Envtl. Protection Agency, 959 F.2d 360, 364 (1st Cir.1992). The critical question concerning fitness for review is whether the claim involves uncertain and contingent events that may not occur as anticipated, or indeed may not occur at all. See Lincoln House, Inc. v. Dupre, 903 F.2d 845, 847 (1st Cir.1990). Clearly, the Federation's alleged injury is contingent upon events that may not occur as anticipated or may not occur at all.

Any injury to the Federation is contingent upon: 1) a decision by the BPD to promote more than six lieutenants or more than 25 captains, and 2) the refusal of both the MAMLEO and the district court to allow an additional promotion to be made from the 1991 lists. We agree with the district court's conclusion that the "Federations's expectation that more than six lieutenants are likely to be appointed before June, 1992, is illusory, to say the very least." The Federation's expectation that the DPA would want to appoint more than 25 captains also is illusory. Thus, the Federation's claim is too hypothetical to be fit for judicial review.

In addition, the Federation has not demonstrated that it will suffer any hardship if judicial consideration is withheld. The Federation can hardly claim hardship since the injury it...