Professional Documents
Culture Documents
Court
issued
on
July
6,
1992,
is
July 6, 1992
_________________________
No. 91-2207
LAWRENCE MACKIN, ET AL.,
Plaintiffs, Appellants,
v.
CITY OF BOSTON, ET AL.,
Defendants, Appellees.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, U.S. District Judge]
___________________
_________________________
Before
Selya, Circuit Judge,
_____________
Coffin, Senior Circuit Judge,
____________________
and Fuste,* District Judge.
______________
_________________________
SELYA,
Circuit
Judge.
Thirty-five
white
male
SELYA,
applicants
Circuit
Judge.
_______________
for
positions in
Department) filed
1989.
suit in the
including the
the
the
City of
Boston
Fire Department
district court
that a bevy
(the
on September
14,
of named defendants,
officials, and
Department by means
of
the list.1
The
the defendants.
I.
I.
We affirm.
BACKGROUND
BACKGROUND
The
resulted
in
two original
the entry
suits
of the
described in
so-called
note 1,
supra,
_____
Beecher decree.
_______
See
___
(1975).
of Massachusetts
Over time,
decrees
designed
to
of firefighters in
been circumscribed
been supplemented by
implement
administrative
cert. denied,
_____ ______
by this
decree.
several consent
procedures
for
lists, releasing
____________________
including
Boston, to
screen applicants
for firefighters'
positions.
In addition, the Boston Chapter of the National
Association for the Advancement
of Colored People (NAACP)
intervened as a defendant.
It, too, opposed the plaintiffs'
requests.
3
and the
general,
since
plaintiffs to be challenging
consent decrees
entered to
it is
the
effectuate it.
to the decree
Beecher decree
_______
that is
In
in the singular,
the
cynosure of
the
parties' arguments.
Unlike
heretofore
some
30-odd
other
fire
departments
which
In
the
Department, conducted
firefighter.
The
administrator
the position of
then
eligibility list
Spanish-surnamed
individuals.2
appellants earned
were ranked
perfect scores
below several
Despite
the fact
on the 1987
compiled
an
to blacks and
that all
35
examination, they
earned lower
scores.
____________________
In the
of
the
certified
continued
persons
eligibility list
preferential treatment
in connection
and
an
of black
with available
a salmagundi
injunction prohibiting
and Spanish-surnamed
firefighting jobs.
They
the
Department had
achieved
a percentage
of
black and
Spanish-surnamed
members
higher
than the
originally entered.
extent anything
purposes
affirmative
be
action
firefighters was
the
decree
be done, the
satisfactorily
because the
1987
race-neutral.
swept
of
such
Appellants also
remained to
could
percentage
claimed that,
to the
decree's ameliorative
accommodated
without
any
entrance examination
for
too broadly
and,
therefore,
should
not be
enforced.
In due
At
of summary
switched gears,
On appeal,
The
plaintiffs protest
ensuing refusal
to
reconsider.
II.
II.
is clear
that,
when a
judicial decree
affording
to strict scrutiny.
of Educ., 476
________
U.S. 267,
v. Jackson Bd.
___________
opinion).
Such
scrutiny requires a
is
by
both
warranted
tailored to further
F.2d 446, 449
(1992).
strong
state interest
that interest.
(1st Cir.
It cannot
employment
initiative
See Stuart
___ ______
be
gainsaid
is
that,
and
narrowly
v. Roache,
______
60 U.S.L.W.
when a
reasonably necessary
951
3689
race-conscious
to
remedy
the
480 U.S. 149, 167 (1987) (plurality opinion); Stuart, 951 F.2d at
______
449.
In
finding
this case,
appellants do not
original
Beecher decree.
_______
Along those
lines,
we believe
that
district
courts
needed institutional
112 S.
reforms.
Ct. 748,
See
___
760
or
established to bring
Rufo
____
v. Inmates of
___________
(1992) (considering
motion to
modify a
consent decree).
In the
context of
civil
requirements.
Put
as incorporated in the
goals of
Ct.
that the
local authority . . .
local authorities."
into the
minimum
affairs of
displacement of
by the
to continue after
be kept to
a bare
the extent
that
the plaintiffs
here are
seeking
___
must
be
consent
remembered
decree
bears
significant change
decree."
that "a
the
party
burden
in circumstances
Rufo, 112 S.
____
Ct. at 760.
seeking
of
_____
modification
establishing
that
warrants a revision
That
in law."
consent decree
for
Id.
___
may be justified
example, when
(listing other
bases for
factual
of circumstances,
conditions make
more onerous."
its
relaxation of
in a variety
"changed factual
Dissolution or
of the
of a
compliance
Id.; see
___ ___
modifying
also id.
____ ___
or dissolving
ANALYSIS
ANALYSIS
7
We treat serially
main
then deal
arguments.
We
in
one
swoop
with the
A.
A.
__
Positing that the decree
achievement
of
minority
representation
in
the
Department
Department
has
already
reached
this modest
Even
disregards
the
parties'
consistent
of the
practice
while
read
the relevant
as
language
referring
to
community,
with
the
percentage
certification
Massachusetts law."
will
Beecher,
_______
be
371
decree is
contemporaneous
commensurate
of the
of
made
most
population
complement of minorities
minorities
within
according
F. Supp.
the
to existing
at 523.
Had
the
prescribed procedures
commensurate
with
the
community in 1974, we
upon reaching
percentage
a complement
of
of minorities
minorities
said so.
8
within
the
would have
Second,
under
the
the decree
undisputed
indicates
have
decree's
practice
of contradiction
that
guided
population statistics.
by
reference
Few things
to
evidence a
pattern of
in
beyond hope
universally
contemporaneous
evidence concerning
by all sides in
decree.
of context.
The logical
extension of
appellants' argument
is
if its
point where
minority population
the percentage
dropped precipitously,
of minority firefighters
to the
in service
long as
lower than
farfetched
to
the percentage of
the
assume that
1974
the
minority firefighters
percentage.
We
district court
think
or
it
is
the parties
addition
to
the obvious
practical
problems with
using outdated statistics, there are also sound legal reasons for
reading
decree to refer
to current population
levels.
One
implication
of the
recent
Supreme Court
school
in the
have no
demographic
shifts is
essential
for
After all,
determining
(1992).
We
statistics,
which, generally, do
112 S. Ct.
not.
availability
of
to 1974
supervening
in
1989,
as
legally
basis
for
_______
B.
B.
__
Next, appellants contend that the
EEOC guidelines
This
a
and
was,
therefore,
nondiscriminatory.
cursory
examinations
reading
makes
are not
it
an end
crystal
clear
in themselves
371
F. Supp. at
valid
. . .
a means
validated
but merely
that
Even
the results of a
10
certifying
manner
applicants as
directed
by
eligible
the decree]
for
.
appointment
.
.");
id.
___
entrance examination").
The
[in the
at
522-23
all future
to a valid firefighter
a mere
heuristic.3
C.
C.
__
The appellants
goals of the Beecher
_______
also hawk
(judging
the
duration").
To be
determining whether
narrowly
to
accomplished, the
See Beecher,
___ _______
be "carefully
504 F.2d
limited
in
we
at 1027
extent and
the
objectives.
decree
even if
its legitimate
in fact,
See, e.g.,
___ ____
____________________
Paradise,
________
480 U.S.
at 177-79
F.2d
453-55.
But,
at
clarification does
(plurality opinion);
that
process
nothing to call
of
Stuart, 951
______
refinement
the adequacy of
and
the instant
not an order is
deference
is
owed
particular kind of
wound.
court,
experience
the 'flinty,
In determining whether
narrowly tailored, a
to
the
trial
significant measure of
court's
conclusion
district
of
unlike the
of
constitutional commands.'"
appeals, "has
is best qualified
intractable realities of
Id.
___
a constitutional
court
that
The
firsthand
to deal with
day-to-day implementation
at 184
(citation omitted).
must
exercise of
equitable power.
See
___
Freeman, 112 S.
_______
Ct. at 1444.
Given
this
deferential
inveighing
standard
graveyard
against
of
review,
appellants
albeit whistling
the
reach
of
the
are
rather loudly
decree's
remedial
provisions.
In
directing
assessing
race-conscious
employment, a court
which
an
(i)
the
overbreadth challenge
relief
in
the
context
beneficiaries
of
the
to
an
of
order
public
are
to
specially
12
advantaged,
(ii)
frustrated or
valid
the
legitimate
fails to
expectancies
contain) built-in
others
are
mechanisms which
its scope
of
duration.
and
The
In this
specially
case, only
advantaged; no
qualified minority
_________
minority
candidate is
candidates are
placed on
the
the
entrance examination.
narrow tailoring.
This is
an
important indicium
454.
of
Relatedly, the
Thus,
the decree
gives only a
limited advantage,
not a
This, too, is a
significant factor.
See
___
among
other
things,
rather
concerns when
than mandating
quota
consideration be given
evaluating qualified
hiring,
it
to affirmative
applicants").
As a
that the
past discrimination."
Local
_____
28, Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 477_____________________________________
____
13
the
failure
to
appoint
more high-scoring
The record
perfect tests
scores, and
Hence,
they would
be appointed.
counsels in favor
This factor,
too,
at 454.
Finally,
force
371 F.
process
the decree's
life
at 523
(providing
for release
"[a]s a city
complement
of minorities
minorities
crucial
factors
Stuart,
______
951 F.2d
pudding
is
in
at
communities originally
commensurate
deflecting
454.
that, since
is limited,
with
See Beecher,
___ _______
from
appointment
or town achieves a
the percentage
of
overbreadth
Indeed, the
1974, more
remaining in
challenges.
proof
than
of the
present
fifty percent
See
___
of the
of
these
realities,
we
conclude
that
the
D.
D.
__
14
On
the
motion
for
reconsideration,
appellants
first,
that the
Department's
achievements
They
under the
black
and
Spanish-surnamed
individuals
in
the
general
They also
suggested
that
blacks and
labor
Spanish-surnamed
to black
firefighters.
We need not
It is settled law
summary
has
judgment
substantial
discretion
been
granted,
the
district
in
deciding
whether
to
court
has
reopen
the
new
material
or
argue a
new
theory.
See Mariani-Giron
___ _____________
v.
Bell Rock Road, 896 F.2d 605, 611 (1st Cir. 1990); Appeal of Sun
_______________
_____________
Pipe Line Co., 831 F.2d 22, 25 (1st Cir. 1987), cert. denied, 486
_____________
_____ ______
U.S.
1055 (1988);
F.2d
Polyplastics, Inc.
__________________
990, 992-93
v. American Airlines,
__________________
Consequently,
we
reconsideration
of an abuse of discretion.
appellants
belatedly sought
to rely
to show
a more
appellants
intend to
along.
The
most
pertinent
"labor pool" information that can be gleaned from the 1980 census
figures
is
the
individuals who
head
count
of
black
of age,
and
Spanish-surnamed
or older, in
1980
firefighters' positions.4
Based
on
Department is
statistically evident.
Appellants' other "new" argument
figures for
black
and Spanish-surnamed
should
be
labor
certifying
fares
that
force
achieved,
blacks to
no better.
was
is
decree's
eligibility list
guidelines
should be
for
lifted
available
Moreover, such
the
the
well
before
the
time suit
was
started.
____________________
4Under
state law,
Spanish-surnamed persons,
surnamed
classes.
decree and an
It also
not separate
black and
unbroken skein of
Spanish-
intent of the
the
decree's terms.
When the
adverse
judgment
diligence and
balance.
losing
on
party
a neoteric
likelihood of
Where,
seeks
theory,
arguments in a
cross-moved for
summary judgment, we
which the
of
an
such as
due
heavily in
the
advancing those
basis on
factors
principled
reconsideration
district court's
not
the parties
discern any
denial
of the
In this case, as
opportunity to revisit
the
Affirmed.
Affirmed.
________
17