|Firefighters Local Union No. 1784 v. Stotts
[ White ]
[ O'Connor ]
[ Stevens ]
[ Blackmun ]
Firefighters Local Union No. 1784 v. Stotts
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting.
Today's opinion is troubling less for the law it creates than for the law it ignores. The issues in these cases arose out of a preliminary injunction that prevented the city of Memphis from conducting a particular layoff in a particular manner. Because that layoff has ended, the preliminary injunction no longer restrains any action that the city wishes to take. The Court nevertheless rejects respondents' claim that these cases are moot because the Court concludes that there are continuing effects from the preliminary injunction and that these create a continuing controversy. The Court appears oblivious, however, to the fact that any continuing legal consequences of the preliminary injunction would be erased by simply vacating the Court of Appeals' judgment, which is this Court's longstanding practice with cases that become moot.
Having improperly asserted jurisdiction, the Court then ignores the proper standard of review. The District Court's action was a preliminary injunction reviewable only on an abuse of discretion standard; the Court treats the action as a permanent injunction and decides the merits, even though the District Court has not yet had an opportunity to do so. On the merits, the Court ignores the specific facts of these cases that make inapplicable the decisions on which it relies. Because, in my view, the Court's decision is demonstrably in error, I respectfully dissent.
The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated.
Roe v. Wade, 410 U.S. 113, 125 (1973). In the absence of a live controversy, the constitutional requirement of a "case" or "controversy," see U.S.Const., Art. III, deprives a federal court of jurisdiction. Accordingly, a case, although live at the start, becomes moot when intervening acts destroy the [p594] interest of a party to the adjudication. DeFunis v. Odegaard, 416 U.S. 312 (1974). In such a situation, the federal practice is to vacate the judgment and remand the case with a direction to dismiss. United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950).
Application of these principles to the present cases is straightforward. The controversy underlying the suits is whether the city of Memphis' proposed layoff plan violated the 1980 consent decree. The District Court granted a preliminary injunction limiting the proportion of Negroes that the city could lay off as part of its efforts to solve its fiscal problems. Because of the injunction, the city chose instead to reduce its workforce according to a modified layoff plan under which some whites were laid off despite their greater seniority over the blacks protected by the preliminary injunction. Since the preliminary injunction was entered, however, the layoffs all have terminated and the city has taken back every one of the workers laid off pursuant to the modified plan. Accordingly, the preliminary injunction no longer restrains the city's conduct, and the adverse relationship between the opposing parties concerning its propriety is gone. A ruling in this situation thus becomes wholly advisory, and ignores the basic duty of this Court
to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.
Oil Workers v. Missouri, 361 U.S. 363, 367 (1960), quoting Mills v. Green, 159 U.S. 651, 653 (1895). The proper disposition, therefore, is to vacate the judgment and remand the cases with directions to dismiss them as moot.
The purpose of vacating a judgment when it becomes moot while awaiting review is to return the legal relationships of the parties to their status prior to initiation of the suit. The Court explained in Munsingwear that vacating a judgment [p595]
clears the path for future relitigation of the issues between the parties and eliminates a judgment, review of which was prevented through happenstance. When that procedure is followed, the rights of all parties are preserved; none is prejudiced by a decision which in the statutory scheme was only preliminary.
340 U.S. at 40. Were the Court to follow this procedure in these cases, as clearly it should, the legal rights of the parties would return to their status prior to entry of the preliminary injunction. In the event that future layoffs became necessary, respondents would have to seek a new injunction based on the facts presented by the new layoffs, and petitioners could oppose the new injunction on any and all grounds, including arguments similar to those made in these cases.
Struggling to find a controversy on which to base its jurisdiction, the Court offers a variety of theories as to why these cases remain live. First, it briefly suggests that the cases are not moot because the preliminary injunction continues in effect, and would apply in the event of a future layoff. My fundamental disagreement with this contention is that it incorrectly interprets the preliminary injunction. [n1] Even if the [p596] Court's interpretation of the preliminary injunction is correct, however, it is nonetheless true that, if the judgment in these cases were vacated, the preliminary injunction would not apply to a future layoff.
The Court's second argument against mootness is remarkable. The Court states that, even if the preliminary injunction applies only to the 1981 layoffs, the "rulings" that formed the "predicate" for the preliminary injunction "remain undisturbed." Ante at 569. The Court then states:
[W]e see no indication that respondents concede in urging mootness that these rulings were in error, and should be reversed. To the contrary, they continue to defend them. Unless overturned, these rulings would require the City to obey the modified consent decree and to disregard its seniority agreement in making future layoffs.
Ibid. Two aspects of this argument provoke comment. It is readily apparent that vacating the judgment in these cases would also vacate whatever "rulings" formed the "predicate" for that judgment. There simply is no such thing as a "ruling" that has a life independent of the judgment in these cases, and that would bind the city in a future layoff if the judgment in these cases were vacated. The Court's argument, therefore, is nothing more than an oxymoronic suggestion that the judgment would somehow have a res judicata effect even if it was vacated -- a complete contradiction in terms.
Moreover, and equally remarkable, is the notion that respondents must concede that the rulings below were in error before they can argue that the cases are moot. To my knowledge, there is nothing in this Court's mootness doctrine that requires a party urging mootness to concede the lack of [p597] merit in his case. Indeed, a central purpose of mootness doctrine is to avoid an unnecessary ruling on the merits.
The Court's third argument against mootness focuses on the wages and seniority lost by white employees during the period of their layoffs -- and it is undisputed that some such pay and seniority were lost. The Court does not suggest, however, that its decision today will provide the affected workers with any backpay or seniority. It is clear that any such backpay or retroactive seniority for laid-off workers would have to come from the city, not from respondents. [n2] But the city Fire Department and the union are both petitioners here, not adversaries, and respondents have no interest in defending the city from liability to the union in a separate proceeding. For that reason, these suits involve the wrong adverse parties for resolution of any issues of backpay and seniority.
The Court, nevertheless, suggests that the backpay and seniority issues somehow keep these cases alive despite the absence of an adversarial party. The Court states:
Unless the judgment of the Court of Appeals is reversed, however, the layoffs and demotions were in accordance with the law, and it would be quite unreasonable to expect the City to pay out money to which the employees had no legal right. Nor would it feel free to respond to the seniority claims of the three white employees who . . . lost competitive seniority in relation to all other individuals who were not laid off, including those minority employees who would have been laid off but for the injunction. On the other hand, if the Court [p598] of Appeals' judgment is reversed, the City would be free to take a wholly different position with respect to backpay and seniority.
Ante at 571 (footnote omitted).
Although the artful ambiguity of this passage renders it capable of several interpretations, none of them provides a basis on which to conclude that these cases are not moot. The Court may mean to suggest that the city has no legal obligation to provide backpay and retroactive seniority, but that it might voluntarily do so if this Court opines that the preliminary injunction was improper. A decision in that situation, however, would be an advisory opinion in the full sense -- it would neither require nor permit the city to do anything that it cannot do already.
It is more likely that the Court means one of two other things. The Court may mean that, if the Court of Appeals' decision is left standing, it would have some kind of preclusive effect in a suit for backpay and retroactive seniority brought by the union against the city. Alternatively, the Court may mean that, if the city sought voluntarily to give union members the backpay and retroactive seniority that they lost, the respondents could invoke the preliminary injunction to prohibit the city from doing so.
Even if both of these notions were correct -- which they clearly are not, see infra at 599-601, and nn. 3, 4, and 5 -- they are irrelevant to the question of mootness. The union has not filed a suit for backpay or seniority, nor has the preliminary injunction prevented the city from awarding retroactive seniority to the laid-off workers. Accordingly, these issues simply are not in the cases before the Court, and have no bearing on the question of mootness. In Oil Workers v. Missouri, 361 U.S. 363 (1960), for example, the Court declined to review an expired antistrike injunction issued pursuant to an allegedly unconstitutional state statute, even though the challenged statute also governed a monetary penalty claim pending in state court against the union. The Court stated:
"[T]hat suit is not before us. We have not [p599] now jurisdiction of it or its issues. Our power only extends over and is limited by the conditions of the case now before us."
Id. at 370 (emphasis added), quoting American Book Co. v. Kansas ex rel. Nichols, 193 U.S. 49, 52 (1904). By vacating this judgment as moot, the Court would ensure that, in the event that a controversy over backpay and retroactive seniority should arise, the parties in these cases could relitigate any issues concerning the propriety of the preliminary injunction as it relates to that controversy. Thus, the Court today simply has its reasoning backwards. It pretends that these cases present a live controversy because the judgment in them might affect future litigation; yet the Court's longstanding practice of vacating moot judgments is designed precisely to prevent that result.
By going beyond the reach of the Court's Art. III powers, today's decision improperly provides an advisory opinion for the city and the union. With regard to the city's ability to give retroactive seniority and backpay to laid-off workers, respondents concede that neither the preliminary injunction nor the Court of Appeals' judgment prohibits the city from taking such action, [n3] Brief for Respondents 30-31. The city has not claimed any confusion over its ability to make such an award; it simply has chosen not to do so. Thus, the opinion today provides the city with a decision to ensure that it can do something that it has not claimed any interest in doing, and [p600] has not been prevented from doing, and that respondents concede they have no way of stopping.
With regard to the union, the Court's imagined controversy is even more hypothetical. The Court concedes that there is doubt whether, in fact, the union possesses any enforceable contractual rights that could form the basis of a contract claim by the union against the city. [n4] It is also unclear how the propriety of the preliminary injunction would affect the city's defenses in such a suit. [n5] In any event, no such [p601] claims have been filed. Thus, today's decision is provided on the theory that it might affect a defense that the city has not asserted, in a suit that the union has not brought, to enforce contractual rights that may not exist.
Because there is now no justiciable controversy in these cases, today's decision by the Court is an improper exercise of judicial power. It is not my purpose in dissent to parallel the Court's error and speculate on the appropriate disposition of these nonjusticiable cases. In arriving at its result, however, the Court's analysis is misleading in many ways, and in other ways it is simply in error. Accordingly, it is important to note the Court's unexplained departures from precedent and from the record.
Assuming, arguendo, that these cases are justiciable, then the only question before the Court is the validity of a preliminary injunction that prevented the city from conducting layoffs that would have reduced the number of Negroes in certain job categories within the Memphis Fire Department. In granting such relief, the District Court was required to consider respondents' likelihood of success on the merits, the balance of irreparable harm to the parties, and whether the injunction would be in the public interest. University of Texas v. Camenisch, 451 U.S. 390, 392 (1981); Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975). The question before a reviewing court "is simply whether the issuance of the injunction, in the light of the applicable standard, constituted an abuse of discretion." Id. at 932.
The Court has chosen to answer a different question. The Court's opinion does not mention the standard of review for a preliminary injunction, and does not apply that standard to [p602] these cases. Instead, the Court treats the cases as if they involved a permanent injunction, and addresses the question whether the city's proposed layoffs violated the consent decree. [n6] That issue was never resolved in the District Court, because the city did not press for a final decision on the merits. The issue, therefore, is not properly before this Court. After taking jurisdiction over a controversy that no longer exists, the Court reviews a decision that was never made. In so doing, the Court does precisely what, in Camenisch, supra, it unanimously concluded was error. Camenisch involved a suit in which a deaf student obtained a preliminary injunction requiring that the University of Texas pay for an interpreter to assist him in his studies. While appeal of the preliminary injunction was pending before the Court of Appeals, the student graduated. The Court of Appeals affirmed the District Court. In so doing, the appellate court [p603] rejected Camenisch's suggestion that his graduation rendered the case moot because the District Court had required Camenisch to post a bond before granting the preliminary injunction, and there remained the issue whether the University or Camenisch should bear the cost of the interpreter. This Court granted certiorari and vacated and remanded the case to the District Court. The Court explained:
The Court of Appeals correctly held that the case as a whole is not moot, since, as that court noted, it remains to be decided who should ultimately bear the cost of the interpreter. However, the issue before the Court of Appeals was not who should pay for the interpreter, but rather whether the District Court had abused its discretion in issuing a preliminary injunction requiring the University to pay for him. . . . The two issues are significantly different, since whether the preliminary injunction should have issued depended on the balance of factors [for granting preliminary injunctions], while whether the University should ultimately bear the cost of the interpreter depends on a final resolution of the merits of Camenisch's case.
* * * *
Until [a trial on the merits] has taken place, it would be inappropriate for this Court to intimate any view on the merits of the lawsuit.
451 U.S. at 393, 398 (emphasis added).
Camenisch makes clear that a determination of a party's entitlement to a preliminary injunction is a separate issue from the determination of the merits of the party's underlying legal claim, and that a reviewing court should not confuse the two. Even if the issues presented by the preliminary injunction in these cases were not moot, therefore, the only issue before this Court would be the propriety of preliminary injunctive relief. [n7] See also New York State Liquor Authority [467 U.S. 604] v. Bellanca, 452 U.S. 714, 716 (1981); Doran v. Salem Inn, Inc., 422 U.S. at 931-932, 934. It is true, of course, that the District Court and the Court of Appeals had to make a preliminary evaluation of respondents' likelihood of success on the merits, but that evaluation provides no basis for deciding the merits:
Since Camenisch's likelihood of success on the merits was one of the factors the District Court and the Court of Appeals considered in granting Camenisch a preliminary injunction, it might be suggested that their decisions were tantamount to decisions on the underlying merits, and thus that the preliminary injunction issue is not truly moot. . . . This reasoning fails, however, because it improperly equates "likelihood of success" with "success," and, what is more important, because it ignores the significant procedural differences between preliminary and permanent injunctions.
451 U.S. at 394 (emphasis added). [p605]
After ignoring the appropriate standard of review, the Court then focuses on an issue that is not in these cases. It begins its analysis by stating that the "issue at the heart of this case" is the District Court's power to "ente[r] an injunction requiring white employees to be laid off." Ante at 572. That statement, with all respect, is simply incorrect. On its face, the preliminary injunction prohibited the city from conducting layoffs in accordance with its seniority system "insofar as it will decrease the percentage of blacks [presently employed]" in certain job categories. App. to Pet. for Cert. in No. 82-229, p. A80. The preliminary injunction did not require the city to lay off any white employees at all. In fact, several parties interested in the suit, including the union, attempted to persuade the city to avoid layoffs entirely by reducing the working hours of all Fire Department employees. See Brief for Respondents 73. Thus, although the District Court order reduced the city's options in meeting its fiscal crisis, it did not require the dismissal of white employees. The choice of a modified layoff plan remained that of the city.
This factual detail is important, because it makes clear that the preliminary injunction did not abrogate the contractual rights of white employees. If the modified layoff plan proposed by the city to comply with the District Court's order abrogated contractual rights of the union, those rights remained enforceable. This Court recognized this principle just last Term in W. R. Grace & Co. v. Rubber Workers, 461 U.S. 757 (1983), which presented a situation remarkably similar to the one here. In that case, an employer sought to conduct layoffs and faced a conflict between a Title VII conciliation agreement protecting its female employees and the seniority rights of its male employees. The employer chose to lay off male employees, who filed grievances and obtained awards for the violation of their contractual rights. In upholding the awards, this Court explained that the [p606] dilemma faced by the employer did not render the male employees' contractual rights unenforceable:
Given the Company's desire to reduce its workforce, it is undeniable that the Company was faced with a dilemma: it could follow the conciliation agreement as mandated by the District Court and risk liability under the collective bargaining agreement, or it could follow the bargaining agreement and risk both a contempt citation and Title VII liability. The dilemma, however, was of the Company's own making. The Company committed itself voluntarily to two conflicting contractual obligations.
Id. at 767. It is clear, therefore, that the correctness of the District Court's interpretation of the decree is irrelevant with respect to the enforceability of the union's contractual rights; those rights remained enforceable regardless of whether the city had an obligation not to lay off blacks. [n8] The question in these cases remains whether the District Court's authority pursuant to the consent decree enabled it to enjoin a layoff of more than a certain number of blacks. The issue is not whether the District Court could require the city to lay off whites, or whether the District Court could abrogate contractual rights of white firefighters.
Assuming, as the Court erroneously does, that the District Court entered a permanent injunction, the question on review then would be whether the District Court had authority to enter it. In affirming the District Court, the Court of Appeals suggested at least two grounds on which respondents might have prevailed on the merits. [p607]
The first of these derives from the contractual characteristics of a consent decree. Because a consent decree "is to be construed for enforcement purposes basically as a contract," United States v. ITT Continental Baking Co., 420 U.S. 223, 238 (1975), respondents had the right to specific performance of the terms of the decree. If the proposed layoffs violated those terms, the District Court could issue an injunction requiring compliance with them. Alternatively, the Court of Appeals noted that a court of equity has inherent power to modify a consent decree in light of changed circumstances. 679 F.2d 541, 560-561 (CA6 1982). Thus, if respondents could show that changed circumstances justified modification of the decree, the District Court would have authority to make such a change.
Respondents based their request for injunctive relief primarily on the first of these grounds, and the Court's analysis of this issue is unpersuasive. The District Court's authority to enforce the terms and purposes of the consent decree was expressly reserved in ¶ 17 of the decree itself:
The Court retains jurisdiction of this action for such further orders as may be necessary or appropriate to effectuate the purposes of this decree.
App. to Pet. for Cert. in No. 82-229, p. A69. Respondents relied on that provision in seeking the preliminary injunction. See Plaintiffs' Supplemental Memorandum in Support of a Preliminary Injunction 1. The decree obligated the city to provide certain specific relief to particular individuals, and to pursue a long-term goal to
raise the black representation in each job classification on the fire department to levels approximating the black proportion of the civilian labor force in Shelby County.
App. to Pet. for Cert. in No. 82-229, p. A64. The decree set more specific goals for hiring and promotion opportunities as well. To meet these goals, the decree "require[d] reasonable, good faith efforts on the part of the City." Ibid. [p608]
In support of their request for a preliminary injunction, respondents claimed that the proposed layoffs would adversely affect blacks significantly out of proportion to their representation. Plaintiffs' Supplemental Memorandum in Support of a Preliminary Injunction, pp. 1-2. They argued that the proposed layoffs were "designed to thwart gains made by blacks" under the decree. Id. at 2. Their argument emphasized that the Mayor had "absolute discretion to choose which job classifications" were to be affected by the layoffs, ibid., and that the "ranks chosen by the Mayor for demotion are those where blacks are represented in the greatest number." Id. at 4. Respondents claimed that such a layoff plan "violates the spirit of the 1980 Consent Decree." Id. at 3. Had respondents been able to prove these charges at trial, they may well have constituted a violation of the city's obligation of good faith under the decree. On the basis of these claims, the limited evidence presented at the hearing prior to the issuance of the preliminary injunction, and the District Court's familiarity with the city's past behavior, the District Court enjoined the city from laying off blacks where the effect would have been to reduce the percentage of black representation in certain job categories. By treating the District Court's injunction as a permanent one, however, the Court first deprives respondents of the opportunity to substantiate these claims and then faults them for having failed to do so. But without determining whether these allegations have any substance, there is simply no way to determine whether the proposed layoff plan violated the terms of the consent decree.
Even if respondents could not have shown that the proposed layoff plan conflicted with the city's obligation of good faith, ¶ 17 of the decree also empowered the District Court to enter orders to "effectuate the purposes" of the decree. Thus, if the District Court concluded that the layoffs would frustrate those purposes, then the decree empowered the District Court to enter an appropriate order. Once again, [p609] however, on the limited factual record before the Court, it is improper to speculate about whether the layoffs would have frustrated the gains made under the consent decree sufficiently to justify a permanent injunction.
The Court rejects the argument that the injunctive relief was a proper exercise of the power to enforce the purposes of the decree principally on the ground that the remedy agreed upon in the consent decree did not specifically mention layoffs. Ante at 575. This treatment of the issue is inadequate. The power of the District Court to enter further orders to effectuate the purposes of the decree was a part of the agreed remedy. The parties negotiated for this, and it is the obligation of the courts to give it meaning. In an ideal world, a well-drafted consent decree requiring structural change might succeed in providing explicit directions for all future contingencies. But particularly in civil rights litigation in which implementation of a consent decree often takes years, such foresight is unattainable. Accordingly, parties to a consent decree typically agree to confer upon supervising courts the authority to ensure that the purposes of a decree are not frustrated by unforeseen circumstances. The scope of such authority in an individual case depends principally upon the intent of the parties. Viewed in this light, recourse to such broad notions as the "purposes" of a decree is not a rewriting of the parties' agreement, but rather a part of the attempt to implement the written terms. The District Judge in these cases, who presided over the negotiation of the consent decree, is in a unique position to determine the nature of the parties' original intent, and he has a distinctive familiarity with the circumstances that shaped the decree and defined its purposes. Accordingly, he should be given special deference to interpret the general and any ambiguous terms in the decree. It simply is not a sufficient response to conclude, as the Court does, that the District Court could not enjoin the proposed layoff plan merely because layoffs were not specifically mentioned in the consent decree. [p610]
In this regard, it is useful to note the limited nature of the injunctive relief ordered by the District Court. The preliminary injunction did not embody a conclusion that the city could never conduct layoffs in accordance with its seniority policy. Rather, the District Court preliminarily enjoined a particular application of the seniority system as a basis for a particular set of layoffs. Whether the District Court would enjoin a future layoff presumably would depend on the factual circumstances of that situation. Such a future layoff presumably would affect a different proportion of blacks and whites; the black representation in the Fire Department presumably would be higher; the layoffs presumably would negate a smaller portion of the gains made under the decree; and the judge would have worked with the parties at implementing the decree for a longer period of time. There is no way of knowing whether the District Court would conclude that a future layoff conducted on the basis of seniority would frustrate the purposes of the decree sufficiently to justify an injunction. For this reason, the Court is wrong to attach such significance to the fact that the consent decree does not provide for a suspension of the seniority system during all layoffs, for that is not what the District Court ordered in these cases.
The Court of Appeals also suggested that respondents could have prevailed on the merits because the 1981 layoffs may have justified a modification of the consent decree. This Court frequently has recognized the inherent "power of a court of equity to modify an injunction in adaptation to changed conditions though it was entered by consent." United States v. Swift & Co., 286 U.S. 106, 114 (1932); accord, Pasadena City Board of Education v. Spangler, 427 U.S. 424, 437 (1976); United States v. United Shoe Machinery Corp., 391 U.S. 244, 251 (1968).
The source of the power to modify is, of course, the fact that an injunction often requires continuing supervision by the issuing court, and always a continuing willingness to apply its powers and [p611] processes on behalf of the party who obtained that equitable relief.
Railway Employees v. Wright, 364 U.S. 642, 647 (1961). The test for ruling on a plaintiff's request for a modification of a consent decree is "whether the change serve[s] to effectuate . . . the basic purpose of the original consent decree." Chrysler Corp. v. United States, 316 U.S. 556, 562 (1942).
The Court rejects this ground for affirming the preliminary injunction, not by examining the purposes of the consent decree and whether the proposed layoffs justified a modification of the decree, but rather by reference to Title VII. The Court concludes that the preliminary injunction was improper because it
imposed on the parties as an adjunct of settlement something that could not have been ordered had the case gone to trial and the plaintiffs proved that a pattern or practice of discrimination existed.
Ante at 579. Thus, the Court has chosen to evaluate the propriety of the preliminary injunction by asking what type of relief the District Court could have awarded had respondents litigated their Title VII claim and prevailed on the merits. Although it is far from clear whether that is the right question, [n9] it is clear that the Court has given the wrong answer. [p612]
Had respondents prevailed on their Title VII claims at trial, the remedies available would have been those provided by § 706(g), 42 U.S.C. § 2000e-5(g). Under that section, a court that determines that an employer has violated Title VII may
enjoin the respondent from engaging in such unlawful employment practice, and 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.
(Emphasis added.) The scope of the relief that could have been entered on behalf of respondents had they prevailed at trial therefore depends on the nature of relief that is "appropriate" in remedying Title VII violations.
In determining the nature of "appropriate" relief under § 706(g), courts have distinguished between individual relief and race-conscious class relief. Although overlooked by the Court, this distinction is highly relevant here. In a Title VII class action of the type brought by respondents, an individual plaintiff is entitled to an award of individual relief only if he can establish that he was the victim of discrimination. That requirement grows out of the general equitable principles of "make-whole" relief; an individual who has suffered no injury is not entitled to an individual award. See Teamsters v. United States, 431 U.S. 324, 347-348, 364-371 (1977). If victimization is shown, however, an individual is entitled to whatever retroactive seniority, backpay, and promotions are consistent with the statute's goal of making the victim whole. Franks v. Bowman Transportation Co., 424 U.S. 747, 762-770 (1976).
In Title VII class actions, the Courts of Appeals are unanimously of the view that race-conscious affirmative relief can also be "appropriate" under § 706(g). [n10] See University of [467 U.S. 613] California Regents v. Bakke, 438 U.S. 265, 301-302 (1978) (opinion of POWELL, J.); id. at 353, n. 28 (opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.). The purpose of such relief is not to make whole any particular individual, but rather to remedy the present class-wide effects of past discrimination or to prevent similar discrimination in the future. Because the discrimination sought to be alleviated by race-conscious relief is the class-wide effects of past discrimination, rather than discrimination against identified members of the class, such relief is provided to the class as a whole, rather than to its individual members. The relief may take many forms, but in class actions it frequently involves percentages -- such as those contained in the 1980 consent decree between the city and respondents -- that require race to be taken into account when an employer hires or promotes employees. The distinguishing feature of race-conscious relief is that no individual member of the disadvantaged class has a claim to it, and individual beneficiaries of the relief need not show that they were themselves victims of the discrimination for which the relief was granted.
In the instant cases, respondents' request for a preliminary injunction did not include a request for individual awards of retroactive seniority -- and, contrary to the implication of the Court's opinion, the District Court did not make any such [p614] awards. Rather, the District Court order required the city to conduct its layoffs in a race-conscious manner; specifically, the preliminary injunction prohibited the city from conducting layoffs that would "decrease the percentage of black[s]" in certain job categories. The city remained free to lay off any individual black, so long as the percentage of black representation was maintained.
Because these cases arise out of a consent decree, and a trial on the merits has never taken place, it is, of course, impossible for the Court to know the extent and nature of any past discrimination by the city. For this reason, to the extent that the scope of appropriate relief would depend upon the facts found at trial, it is impossible to determine whether the relief provided by the preliminary injunction would have been appropriate following a trial on the merits. Nevertheless, the Court says that the preliminary injunction was inappropriate because, it concludes, respondents could not have obtained similar relief had their cases been litigated, instead of settled by a consent decree.
The Court's conclusion does not follow logically from its own analysis. As the Court points out, the consent decree arose out of a Title VII suit brought by respondents alleging, inter alia, that the city had engaged in a pattern and practice of discrimination against members of the plaintiff class. Mr. Stotts, the named plaintiff, claimed that he and the class members that he represented had been denied promotions solely because of race, and that, because of that discrimination, he and other members of the class had been denied their rightful rank in the Memphis Fire Department. See Complaint of Respondents in No. 82-229, ¶¶ 9 and 10, App. 10. Had respondents' case actually proceeded to trial, therefore, it would have involved the now familiar two-stage procedure established in Teamsters and Franks. The first stage would have been a trial to determine whether the city had engaged in unlawful discrimination; if so, the case would proceed to the second stage, during which the individual members of the class would have the opportunity to establish that they were [p615] victims of discrimination. Teamsters, 431 U.S. at 371, 375. The Court itself correctly indicates:
If individual members of a plaintiff class demonstrate that they have been actual victims of the discriminatory practice, they may be awarded competitive seniority and given their rightful place on the seniority roster.
Ante at 578-579. Were respondents to prevail at trial on their claims of discrimination, therefore, they would have been entitled to individual awards of relief, including appropriate retroactive seniority. Thus, even treating the District Court's preliminary injunction as if it granted individual awards of retroactive seniority to class members, it is relief that respondents might have obtained had they gone to trial, instead of settling their claims of discrimination. Thus, the Court's conclusion is refuted by its own logic and by the very cases on which it relies to come to its result. [n11]
For reasons never explained, the Court's opinion has focused entirely on what respondents have actually shown, instead of what they might have shown had trial ensued. It is improper and unfair to fault respondents for failing to show "that any of the blacks protected from layoff had been a victim of discrimination," ante at 579, for the simple reason that the claims on which such a showing would have been made never went to trial. The whole point of the consent decree in these cases -- and indeed the point of most Title VII consent decrees -- is for both parties to avoid the time and expense of [p616] litigating the question of liability and identifying the victims of discrimination. In the instant consent decree, the city expressly denied having engaged in any discrimination at all. Nevertheless, the consent decree in these cases provided several persons with both promotions and backpay. By definition, all such relief went to persons never determined to be victims of discrimination, and the Court does not indicate that it means to suggest that the original consent decree in these cases was invalid. Any suggestion that a consent decree can provide relief only if a defendant concedes liability would drastically reduce, of course, the incentives for entering into consent decrees. Such a result would be incongruous, given the Court's past statements that "Congress expressed a strong preference for encouraging voluntary settlement of employment discrimination claims." Carson v. American Brands, Inc., 450 U.S. 79, 88, n. 14 (1981); see Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974).
The Court's reliance on Teamsters is mistaken at a more general level as well, because Teamsters was concerned with individual relief, whereas these cases are concerned exclusively with class-wide, race-conscious relief. Teamsters arose out of two pattern-or-practice suits filed by the Government alleging that a union and an employer had discriminated against minorities in hiring truckdrivers. Prior to a finding of liability, the Government entered into a consent decree in partial resolution of the suit. In that decree, the defendants agreed to a variety of race-conscious remedial actions, including a requirement that the company hire "one Negro or Spanish-surnamed person for every white person" until a certain percentage of minority representation was achieved. 431 U.S. at 330-331, n. 4. The decree did not settle the claims of individual class members, however, and allowed the individuals whom the court found to be victims of discrimination to seek whatever retroactive seniority was appropriate under Title VII. Ibid.
In Teamsters, therefore, all class-wide claims had been settled before the case reached this Court. The case concerned [p617] only the problems of determining victims and the nature of appropriate individual relief. Teamsters did not consider the nature of appropriate affirmative class relief that would have been available had such relief not been provided in the consent decree between the parties. The issue in the present cases, as posed by the Court, is just the reverse. Respondents have not requested individual awards of seniority, and the preliminary injunction made none. Thus, the issue in these cases is the appropriate scope of class-wide relief -- an issue not present in Teamsters when that case came here. Teamsters therefore has little relevance for these cases.
The Court seeks to buttress its reliance on Teamsters by stressing on the last sentence of § 706(g). That sentence states that a court cannot order the
hiring, reinstatement, or promotion of an individual as an employee . . . if such individual . . . was refused employment or advancement or was suspended or discharged for any reason other than discrimination
in violation of Title VII. The nature of the Court's reliance on that sentence is unclear, however, because the Court states merely that the District Court "ignores" the "policy behind § 706(g)." Ante at 582-583, 579. For several reasons, however, it appears that the Court relies on the policy of § 706(g) only in making a particularized conclusion concerning the relief granted in these cases, rather than a conclusion about the general availability of race-conscious remedies.
In discussing § 706(g), the Court relies on several passages from the legislative history of the Civil Rights Act of 1964 in which individual legislators stated their views that Title VII would not authorize the imposition of remedies based upon race. And while there are indications that many in Congress at the time opposed the use of race-conscious remedies, there is authority that supports a narrower interpretation of § 706(g). Under that interpretation, the last sentence of § 706(g) addresses only the situation in which a plaintiff demonstrates that an employer has engaged in unlawful discrimination, but the employer can show that a particular [p618] individual would not have received the job, promotion, or reinstatement even in the absence of discrimination because there was also a lawful justification for the action. See Patterson v. Greenwood School District 50, 696 F.2d 293, 295 (CA4 1982); EEOC v. American Tel. & Tel. Co., 556 F.2d 167, 174-177 (CA3 1977), cert. denied, 438 U.S. 915 (1978); Day v. Mathews, 174 U.S.App.D.C. 231, 233, 530 F.2d 1083, 1085 (1976); King v. Laborers Int'l Union, Local No. 818, 443 F.2d 273, 278-279 (CA6 1971). See also Brodin, The Standard of Causation in the Mixed-Motive Title VII Action: A Social Policy Perspective, 82 Colum.L.Rev. 292 (1982). The provision, for example, prevents a court from granting relief where an employment decision is based in part upon race, but where the applicant is unqualified for the job for nondiscriminatory reasons. In that sense, the section merely prevents a court from ordering an employer to hire someone unqualified for the job, and has nothing to do with prospective class-wide relief.
Much of the legislative history supports this view. What is now § 706(g) had its origin in § 707(e) of H.R. 7152, 88th Cong., 1st Sess. (1963). That original version prevented a court from granting relief to someone that had been refused employment, denied promotion, or discharged "for cause." The "for cause" provision presumably referred to what an employer must show to establish that a particular individual should not be given relief. That language was amended by replacing "for cause" with "for any reason other than discrimination on account of race, color, religion or national origin," which was the version of the sentence as passed by the House. The author of the original version and the amendment explained that the amendment's only purpose was to specify cause, and to clarify that a court cannot find a violation of the Act that is based upon facts other than unlawful discrimination. 110 Cong.Rec. 2567 (1964) (remarks of Rep. Celler). There is no indication whatever that the amendment was intended to broaden its prohibition to include all forms of prospective race-conscious relief. [p619]
In any event, § 706(g) was amended by the Equal Employment Opportunity Act of 1972, 86 Stat. 107. The legislative history of that amendment strongly supports the view that Congress endorsed the remedial use of race under Title VII. The amendment added language to the first sentence of § 706(g) to make clear the breadth of the remedial authority of the courts. As amended, the first sentence authorizes a court 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.
42 U.S.C. § 2000e-5(g) (emphasized language added in 1972).
In addition, during consideration of the amendment, Congress specifically rejected an attempt to amend Title VII to prohibit the use of prospective race-conscious employment goals to remedy discrimination. Senator Ervin proposed an amendment to Title VII intended to prohibit Government agencies from requiring employers to adopt goals or quotas for the hiring of minorities. 118 Cong.Rec. 1663-1664 (1972). Senator Javits led the debate against the amendment. Id. at 1664-1676. Significantly, Senator Javits stressed that the amendment would affect not only the activities of federal agencies, but also the scope of judicial remedies available under Title VII. He referred repeatedly to court decisions ordering race-conscious remedies, and asked that two such decisions be printed in the Congressional Record. Id. at 1665-1675. [n12] He stated explicitly his view [p620] that "[w]hat this amendment seeks to do is to undo . . . those court decisions." Id. at 1665. The amendment was rejected by a 2-to-1 margin. Id. at 1676.
With clear knowledge, therefore, of courts' use of race-conscious remedies to correct patterns of discrimination, the 1972 Congress rejected an attempt to amend Title VII to prohibit such remedies. In fact, the Conference Committee stated:
In any area where the new law does not address itself, or in any areas where a specific contrary intention is not indicated, it was assumed that the present case law as developed by the courts would continue to govern the applicability and construction of Title VII.
118 Cong.Rec. 7166 (1972). Relying on this legislative history of the 1972 amendment and other actions by the Executive and the courts, four Members of this Court, including the author of today's opinion, stated in University of California Regents v. Bakke, 438 U.S. 265, 353, n. 28 (1978):
Executive, judicial, and congressional action subsequent to the passage of Title VII conclusively established that the Title did not bar the remedial use of race.
(Opinion of BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.) As has been observed, n. 10, supra, moreover, the Courts of Appeals are unanimously of the view that race-conscious remedies are not prohibited by Title VII. Because the Court's opinion does not even acknowledge this consensus, it seems clear that the Court's conclusion that the District Court "ignored the policy" of § 706(g) is a statement that the race-conscious relief ordered in these cases was broader than necessary, not that race-conscious relief is never appropriate under Title VII.
By dissenting, I do not mean glibly to suggest that the District Court's preliminary injunction necessarily was correct. Because it seems that the affected whites have no contractual rights that were breached by the city's modified layoff plan, the effect of the preliminary injunction was to shift the pain of the city's fiscal crisis onto innocent employees. This [p621] Court has recognized before the difficulty of reconciling competing claims of innocent employees who themselves are neither the perpetrators of discrimination nor the victims of it.
In devising and implementing remedies under Title VII, no less than in formulating any equitable decree, a court must draw on the
qualities of mercy and practicality [that] have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs, as well as between competing private claims.
Teamsters, 431 U.S. at 375, quoting Hecht Co. v. Bowles, 321 U.S. 321, 329-330 (1944). If the District Court's preliminary injunction was proper, it was because it correctly interpreted the original intent of the parties to the consent decree, and equitably enforced that intent in what admittedly was a zero-sum situation. If it was wrong, it was because it improperly interpreted the consent decree, or because a less painful way of reconciling the competing equities was within the court's power. In either case, the District Court's preliminary injunction terminated many months ago, and I regret the Court's insistence upon unnecessarily reviving a past controversy.
1. It is readily apparent from the terms of the preliminary injunction that it applied only to the layoffs contemplated in May, 1981, and that the union would have to seek a new injunction if it sought to stop layoffs contemplated in the future. The preliminary injunction applied only to the positions -- lieutenant, driver, inspector, and private -- in which demotions or layoffs were then planned. It makes little sense to interpret this preliminary injunction to apply to future layoffs that might involve different positions. In addition, the minimum percentage of Negroes that the city was to retain was that of blacks "presently employed" in those positions, a standard that has no pertinence if applied to future layoffs when minority employment levels would be higher than in 1981. App. to Pet. for Cert. in No. 82-229, p. A77. Finally, the reasoning of the District Court in granting the preliminary injunction was based expressly on "the effect of these lay-offs and reductions in rank." Id. at A78 (emphasis supplied). Thus, it is clear that the District Court viewed the preliminary injunction as a response to the problem presented by the May, 1981, layoffs, rather than to the problem of layoffs generally.
2. In the event that the laid-off firefighters were to bring a successful action for backpay against the city, the city would have no claim for reimbursement against respondents for securing an allegedly erroneous injunction. No bond was posted for the preliminary injunction, and
[a] party injured by the issuance of an injunction later determined to be erroneous has no action for damages in the absence of a bond.
W. R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 770, n. 14 (1983).
3. It was the city's layoff policy, not the preliminary injunction, that prevented the laid-off workers from accruing seniority during their layoffs. Paragraph 6B of "Benefits" of the city's written "Layoff Policy," adopted unilaterally by the city in April 1981, states: "Employees shall not receive seniority credit during their layoff period." App. 95. If the laid-off workers are to receive retroactive seniority, it will be because the city chooses to change this policy -- which they always have been free to do -- not because the preliminary injunction has been invalidated. Although the Court feigns uncertainty on this matter, ante at 571, n. 5, as does JUSTICE O'CONNOR in her separate opinion, ante at 584-585, there is simply no indication in these cases that the city wants to give the laid-off workers retroactive seniority but is unable to do so because of the preliminary injunction.
4. It appears that, if the union enjoys any contractual rights at all, they derive from the "Memorandum of Understanding" between the union and the city, which indicates that layoffs shall be made on the basis of seniority. App. to Pet. for Cert. in No. 82-206, p. A81. The Tennessee Supreme Court recently has confirmed, however, that the Memorandum of Understanding confers no enforceable rights, Fulenwider v. Firefighters Assn. Local Union 1784, 649 S.W.2d 268 (1982), because of state law limits on the authority of municipalities to contract with labor organizations. Thus, the likely reason that the union has not filed a suit for backpay is because it has no enforceable rights.
I am at somewhat of a loss trying to understand the Court's suggestion that the District Court's preliminary injunction somehow prevented contract liability from arising between the city and the affected white employees. As is explained more fully infra, the preliminary injunction did not require the city to lay off anyone. The preliminary injunction merely prohibited the city from laying off more than a certain proportion of Negroes. In the face of that constraint, the city decided to proceed with layoffs and to lay off whites instead of the protected Negroes. If, in so doing, the city breached contractual rights of the white employees, those rights remained enforceable. See W. R. Grace & Co. v. Rubber Workers, 461 U.S. 757 (1983) (employer could be held liable for breach of collective bargaining agreement when, because women employees were protected by an injunction, it laid off male employees with greater seniority).
5. An enjoined party is required to obey an injunction issued by a federal court within its jurisdiction even if the injunction turns out on review to have been erroneous, and failure to obey such an injunction is punishable by contempt. Walker v. City of Birmingham, 388 U.S. 307, 314 (1967). Given that the city could have been punished for contempt if it had disregarded the preliminary injunction, regardless of whether the injunction on appeal were found erroneous, it seems unlikely that a defense to a breach of contract would turn on whether the preliminary injunction is upheld on appeal as opposed to the city's obligation to obey the injunction when entered.
6. The Court's attempt to recharacterize the preliminary injunction as a permanent one is wholly unpersuasive. Respondents' request for injunctive relief specifically sought a preliminary injunction, and carefully laid out the standards for the issuance of such an injunction. App. 20-22. Petitioners' response in opposition to the request for injunctive relief was devoted entirely to explaining that the standards for a preliminary injunction had not been met. Id. at 25-28. The District Court's order granting injunctive relief was entitled an "Order Granting Preliminary Injunction," and a later order expanding the injunctive relief to include more positions was entitled an "Order Expanding Preliminary Injunction." App. to Pet. for Cert. in No. 82-229, pp. A77, A82. The Court of Appeals expressly defined the nature of its inquiry by stating:
We must weigh whether the plaintiffs have shown a strong possibility of success on the merits, whether the plaintiff or defendant would suffer irreparable harm and whether the public interest warrants the injunction. . . . The standard of appellate review is whether the district court abused its discretion in granting the preliminary injunction.
[The District Judge] did not abuse his discretion in granting the preliminary injunction.
679 F.2d 541, 560 (CA6 1982). It is hard to imagine a clearer statement that the issue considered by the Court of Appeals was the propriety of a preliminary injunction. In any event, even if the Court of Appeals went beyond the scope of its appropriate review, it would be our duty to correct that error, not to follow it.
7. The distinction between the preliminary and final injunction stages of a proceeding is more than mere formalism. The time pressures involved in a request for a preliminary injunction require courts to make determinations without the aid of full briefing or factual development, and make all such determinations necessarily provisional. Like the proceedings in Camenisch, those in this litigation "bear the marks of the haste characteristic of a request for a preliminary injunction." 451 U.S. at 398. The hearing on the preliminary injunction was held four days after the layoffs had been announced. With the exception of a single deposition the day before the hearing, there was no discovery. In opening the hearing, the trial judge noted:
One of the problems with these injunction hearings centers around the fact that the lawyers don't have the usual time to develop the issues, and take discovery, and exchange information, and to call on each other to state what they think the issues are. . . . I got an idea from the lawyers -- I am not sure that they were finally decided on what route they were going. . . .
App. 30. It is true that the District Court made a few of what generously could be described as findings and conclusions, but, as the Court in Camenisch pointed out, "findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits." 451 U.S. at 395. Accordingly, there is simply no proper basis on which this Court legitimately can decide the question whether the city's proposed layoffs violated the consent decree.
8. Judge Martin's opinion concurring in part and dissenting in part from the Sixth Circuit's decision is based on precisely this point. See 679 F.2d at 569.
9. The Court's analysis seems to be premised on the view that a consent decree cannot provide relief that could not be obtained at trial. In addressing the Court's analysis, I do not mean to imply that I accept its premise as correct. In Steelworkers v. Weber, 443 U.S. 193 (1979), this Court considered whether an affirmative action plan adopted voluntarily by an employer violated Title VII because it discriminated against whites. In holding that the plan was lawful, the Court stressed that the voluntariness of the plan informed the nature of its inquiry. Id. at 200; see also id. at 211 (concurring opinion). Because a consent decree is an agreement that is enforceable in court, it has qualities of both voluntariness and compulsion. The Court has explained that Congress intended to encourage voluntary settlement of Title VII suits, Carson v. American Brands, Inc., 450 U.S. 79, 88, n. 14 (1981), and cooperative private efforts to eliminate the lingering effects of past discrimination. Weber, 443 U.S. at 201-207. It is by no means clear, therefore, that the permissible scope of relief available under a consent decree is the same as could be ordered by a court after a finding of liability at trial.
10. See e.g., Boston Chapter, NAACP, Inc. v. Beecher, 504 F.2d 1017, 1027-1028 (CA1 1974), cert. denied, 421 U.S. 910 (1975); Rios v. Enterprise Assn. Steamfitters Local 638, 501 F.2d 622, 629 (CA2 1974); EEOC v. American Tel. & Tel. Co., 556 F.2d 167, 174-177 (CA3 1977), cert. denied, 438 U.S. 915 (1978); Chisholm v. United States Postal Service, 665 F.2d 482, 499 (CA4 1981); United States v. City of Alexandria, 614 F.2d 1358, 1363-1366 (CA5 1980); United States v. I.B.E.W., Local No. 8, 428 F.2d 144 (CA6), cert. denied, 400 U.S. 943 (1970); United States v. City of Chicago, 663 F.2d 1354 (CA7 1981) (en banc); Firefighters Institute v. City of St. Louis, 616 F.2d 350, 364 (CA8 1980), cert. denied, 452 U.S. 938 (1981); United States v. Ironworkers Local 86, 443 F.2d 544, 553-554 (CA9), cert. denied, 404 U.S. 984 (1971); United States v. Lee Way Motor Freight, Inc., 625 F.2d 918, 944 (CA10 1979); Thompson v. Sawyer, 219 U.S.App.D.C. 393, 430, 678 F.2d 257, 294 (1982).
11. The Court's opinion is sufficiently ambiguous to suggest another interpretation. The Court concludes that the preliminary injunction was improper because it gave respondents something they could not have obtained had they proved that "a pattern or practice of discrimination existed." Ante at 579. It is possible, therefore, that the Court is suggesting that the limit on relief available under a consent decree is that which could be awarded if a plaintiff prevailed in "stage I" of a case, but failed to proceed to "stage II," during which the plaintiff seeks to identify actual victims of discrimination. But the Court has failed to provide any support for this odd notion. The rationale underlying its opinion seems to be that the limit of the District Court's remedial power is that which could have been ordered following a trial on the alleged discrimination, not just the first stage of such a trial.
12. The two cases placed in the Congressional Record were United States v. Ironworkers Local 86, 443 F.2d 544 (CA9) (a percentage goal for black participation in apprenticeship program as part of remedy for Title VII violation), cert. denied, 404 U.S. 984 (1971), and Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442 F.2d 159 (CA3) (upheld lawfulness of a plan requiring contractors on federally assisted projects to adopt goals for minority employment), cert. denied, 404 U.S. 854 (1971). Senator Javits also noted the Justice Department's practice of seeking consent decrees in Title VII cases containing percentage hiring goals. 118 Cong.Rec. 1675 (1972).