Transcript

IN THE SUPREME COURT OF THE UNITED STATES

BOSTON FIREFIGHTERS UNION, LOCAL 718, Petitioner v. BOSTON CHAPTER, NAACP, ET AL.; BOSTON POLICE PATROLMEN'S ASSOCIATION, INC., Petitioner v. PEDRO CASTRO, ET AL.; and NANCY B. BEECHER, ET AL., Petitioner v. BOSTON CHAPTER, NAACP, ET AL.

No. 82-185, No. 82-246, No. 82-259

April 18, 1983

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 2:01 p.m.

APPEARANCES:

THOMAS A. BARNICO, Assistant Attorney General of Massachusetts; on behalf of State Petitioners.

JOHN MC MAHON, Boston, Massachusetts; on behalf of Union Petitioners.

JAMES S. DITTMAR, Boston, Massachusetts; on behalf of Respondents.

PROCEEDINGS

CHIEF JUSTICE BURGER: Mr. Barnico, I think you may proceed whenever you are ready.

MR. BARNICO: Thank you.

ORAL ARGUMENT OF THOMAS A. BARNICO, ESQ. ON BEHALF OF STATE PETITIONERS

MR. BARNICO: Mr. Chief Justice, and may it please the Court:

The Commonwealth of Massachusetts appears here today seeking reversal of orders entered by the United States District Court for the District of Massachusetts on August 7, 1981. We thus seek the same result as the Union Petitioners in these cases.

To accomplish that result, however, we bring a different appeal and different arguments before the Court. We appeal from the unjustified suspension of a Massachusetts law that requires that layoffs in public safety positions be made in reverse order of seniority.

After briefly stating these cases, it is my intention to argue that the District Court abused its discretion by suspending that law where no previous orders or decrees entered in these cases concerned layoffs and where entry of the orders contradicted principles of federalism that govern the exercise of the federal equity power.

The orders at issues were entered in on-going cases with long judicial histories and state-wide application. Ten years ago the District Courts in these cases entered judgments and found that state examination procedures for police and fire positions unintentionally, and I repeat, unintentionally violated the rights of the plaintiffs. Remedial orders were entered. Those orders required a new examination and also required preferential certification of minorities to local cities and towns.

As a result of the preferential certifications, the percentage of minorities in Massachusetts city and town police and fired forces increased substantially.

QUESTION: Mr. Barnico, were those original orders entered of indefinite duration?

MR. BARNICO: The orders that were entered in August of 1981, Your Honor, or the --

QUESTION: No, the original -- sometime in the '70's. I don't know when it was.

MR. BARNICO: The subsequent decrees entered shortly after those original findings to provide for the remedial phase of the cases applied to the cities and towns until the percentages of minorities reach a percentage commensurate with the percentage in the community.

QUESTION: And, has that percentage yet been reached?

MR. BARNICO: Not in Boston, Your Honor, but in many communities, yes.

QUESTION: So, as far as Boston is concerned, the decree entered in the '70's still has considerable prospective effect?

MR. BARNICO: Yes, Your Honor.

In the summer of 1981, Boston proposed layoffs in its police and fire departments. The District Court granted what plaintiffs styled a motion to modify prior remedial orders.

QUESTION: Should the order that we are reviewing here today, having to do with the layoffs, be interpreted as having a permanent effect in your view?

MR. BARNICO: Our view -- That is correct, Your Honor. Our view is by its terms it has permanent application.

That order of August 7, 1981 directed city and state officials to ignore the provisions of the state seniority statute, never challenged and never at issue --

QUESTION: Hasn't there been some recent legislation requiring the reinstatement of all those firemen and policemen who were laid off?

MR. BARNICO: Yes, Your Honor, that legislation was passed in June of 1982.

QUESTION: Well, then, what kind of case have we got here?

MR. BARNICO: You have a live case here, Your Honor.

QUESTION: How?

MR. BARNICO: These cases --

QUESTION: Everyone who was aggrieved has now been reinstated, hasn't he?

MR. BARNICO: The state is aggrieved and --

QUESTION: Everyone who has been aggrieved, every fireman and police officer has been reinstated, has he not?

MR. BARNICO: The firefighters and police officers laid off in the summer of 1981 were reinstated by the terms of that legislation, that is correct.

QUESTION: I ask you again then, what kind of a case do we have here? Do we have any?

MR. BARNICO: We have a live case here, Your Honor, because the state defendants have been parties to this case for over ten years, are still subject to the outstanding terms of those orders.

QUESTION: Do you mean on back pay?

MR. BARNICO: Excuse me?

QUESTION: Do you mean by reason of back pay that is paid to these people?

MR. BARNICO: No, Your Honor. Mr. McMahon could speak to the permanent effect of the orders on those back-pay claims. Since I represent the state defendants, I rely on the outstanding effect of the orders on the state officials.

QUESTION: What orders are you talking about, reinstatement and seniority or what? What orders are you talking about?

MR. BARNICO: The orders of August 7, 1981, by their terms apply to any program for reduction in force. They also apply currently to the administrative appeals brought by the terminated officers that are now pending before the Civil Service Commission.

In addition, Your Honor, we have a third argument and that is simply that these cases continue in the District Court. We are still subject to the underlying judgments of these cases. And, when we return from this case, the cases that I mentioned before live with on-going --

QUESTION: The parties have had to comply with the reduction-in-force orders.

MR. BARNICO: I am not sure what you mean by that.

QUESTION: Well, the issue in the case was how were they going to discharge people when they reduced force?

MR. BARNICO: That is correct. Boston proposed layoffs and the issue was whether the seniority statute of Massachusetts should govern the layoffs last time and --

QUESTION: And the orders were that they wouldn't govern them.

MR. BARNICO: The orders said that the statute would be ignored and percentages -- any program of reduction in force should be maintained.

QUESTION: And the police and fire department have been complying with those?

MR. BARNICO: That is correct, Your Honor.

QUESTION: And they must continue to comply --

MR. BARNICO: Absolutely.

QUESTION: Unless the orders are set aside?

MR. BARNICO: That is correct, Your Honor.

QUESTION: Well, I don't follow that. If the officers, whether firemen or policemen, affected have, by the latest legislation, been ordered reinstated and have, in fact, been reinstated, what do the authorities have to comply with? They are reinstated now.

MR. BARNICO: As I said, Your Honor, there is a current effect on the Civil Service Commission's adjudication of their appeals.

QUESTION: Well, what is left of their appeals? Their appeals don't concern reinstatement, do they?

QUESTION: They are trying to get back pay.

MR. BARNICO: That is right.

QUESTION: And seniority.

QUESTION: Seniority.

QUESTION: Those issues are not here in this case.

QUESTION: But, they are not moot, are they?

MR. BARNICO: Back pay is not an issue in this case, no, Your Honor.

QUESTION: But neither is seniority.

QUESTION: There is a controversy, I take it, that goes on under the decree.

MR. BARNICO: The controversy continues for those reasons that I gave earlier. That is our position.

QUESTION: And the reinstatement included too with full seniority, isn't it? Everybody who was discharged has been reinstated with full seniority, is that not right?

MR. BARNICO: No, Your Honor.

QUESTION: Oh, isn't it?

MR. BARNICO: Your Honor, these cases --

QUESTION: Well, if not, what? The reinstatement is with what seniority?

MR. BARNICO: Seniority only to the time of determination. I think Mr. McMahon could --

QUESTION: You don't seem to be too sure of that.

MR. BARNICO: Well, Mr. McMahon, I think, could clarify that position, but the back pay issue still remains so that when Justice Stevens suggested that all issues were taken care by the reinstatement, I add that the back pay question still remains.

QUESTION: I assume, since you represent the state, your denying that they are entitled to back pay and he contends they are entitled to back pay.

MR. BARNICO: The state is an adjudicator actually, Your Honor.

QUESTION: Oh, I see.

MR. BARNICO: The Commission will decide whether the city will actually pay the back pay.

These cases pose important --

QUESTION: The city under the -- or rather the Civil Service Commission under the modification of 1981 is subject to an express paragraph, is it not, of the modification limiting the authority of the Civil Service Commission?

MR. BARNICO: Yes, Your Honor, and that continuing effect keeps this case alive before this Court.

QUESTION: The respondents contended, and some copy of a Civil Service Commission decision is attached, to indicated that our decision here will have no effect on the back pay and that is being resolved on different grounds.

MR. BARNICO: But, currently, Your Honor, the Civil Service Commission is prevented from even considering the question of seniority in the back pay and termination appeals. We are asking, as the state adjudicator, to be free from an order which currently prohibits us from making an inquiry that we are bound to make under the state law.

QUESTION: Yes, but Mr. Barnico, if we were to conclude that the case is moot because of these reinstatements, I take it we would vacate all those orders, wouldn't we?

MR. BARNICO: But, you would have to conclude that there is no continuing and permanent effect on the state petitioners before you vacate these orders, vacate this case and instruct to dismiss. You can only invoke Munsingwear procedure so-called once you determine that there is no current and no permanent effect on the state officials. And, we argue, of course, that there is.

QUESTION: Well, I take it we would have to vacate the entire decree if it is moot, wouldn't we?

MR. BARNICO: Absolutely.

QUESTION: Including the 1970 portion.

MR. BARNICO: And that procedure that has been used in the past has often been used to vacate the underlying judgments with instructions to dismiss which is far different than here. In this case, you will not hear plaintiffs' respondents ask the Court to vacate the underlying judgments because those continue and they have orders which effect examinations and certifications in the future.

My time is expiring but my case is not, I assure you.

(Laughter)

MR. BARNICO: Previous school desegregation and employment discrimination cases decided by this Court have required states to address particular instances of racial discrimination. In these cases, implementation of a neutral testing device and the hiring preferences created in the system redress specific wrongs and vindicated entitlements. That entitlement, however, didn't constitute a predicate to the most recent orders which extended the remedy.

The District Court ignored fundamental and affirmative limitations on the judicial power. The District Court ordered and the First Circuit Court of Appeals approved a decree that transcended all previous orders that were ever entered in these cases and suspended a valid state law.

In closing, we acknowledge the competing interests that are pitted and the important questions that are posed by these cases. The District Court Judge heard argument from these interests. He weighed these issues. Out of sheer exasperation, I think, at one point in the oral argument of the case, he looked at the parties below him and commented that no party had asked him to retain the best policemen or the best firemen.

But, faced with those issues, he was not free to impose his own view of who should be retained. He was bound by this Court's previous determination limiting the scope of the equity power to violations previously found. He was bound by Congress' express protection of bona fide seniority systems and he was bound by principles of federalism that prohibited him from suspending a state law never challenged and never at issue in these cases. He ignored those rules and his orders must, therefore, be reversed.

If there are no further questions, I conclude here. Thank you.

CHIEF JUSTICE BURGER: Mr. McMahon?

ORAL ARGUMENT OF JOHN MC MAHON, ESQ. ON BEHALF OF THE UNION PETITIONERS

MR. MC MAHON: Thank you, Mr. Chief Justice. May it please the Court:

Before proceeding to my view of the issue, if I could respond to some of the questions that had been posed with respect to the seniority remedy. In effect, upon reinstatement, because the officers had been laid off for fiscal reasons, they did regain all their seniority back to date of permanent appointment. In that case, the seniority issue, in terms of relief that they are presently seeking before the state agency, dropped out of the case.

There is a very serious back pay issue that is involved and it is one which the Civil Service Commission is asked to rule upon.

As long as the District Court's August 7, 1981 order does exist, the Civil Service Commission cannot rule upon that order.

I would submit to you as a matter of equities as to who should bear the particular loss, the City of Boston or the laid-off officers if, in fact, the seniority suppression was not valid, that should be an issue left best to the Civil Service Commission of Massachusetts.

There are a variety of Civil Service appeals which have come up, including a police officer, superior officer's appeal, which, I believe, Justice O'Connor referenced in her question and that order, if I recall it, was based on the fact that the City of Boston had used a political manipulation to lay off a small number of police officers in another group not represented by the union before you today.

In effect, I think the Civil Service Commission was stating that they found that there was a political discrimination involved in that order. I have not looked at it and I apologize if I have not quoted it correctly, but my recollection is that it was based on a different series of proofs than would be involved in this case.

If I could return to my argument, the unions submit that the issue before you is whether a federal court in an employment discrimination case can grant increased, competitive job security to junior minority firefighters who were not, who were not victims of past acts of discrimination by suppressing a bona fide seniority statute requiring seniority layoffs to the detriment of senior non-minority firefighters who were then terminated.

I would submit that this judicial override should be reversed on statutory grounds. If the statutory grounds are not persuasive, this judicial override should fail for reasons found in the equal protection component of the Fifth Amendment.

May I note that under current law there are no constitutional violations that are present on the record before you. Certainly Washington v. Davis has now established that in order to have a Fourteenth Amendment violation there would have to be purposeful, deliberate discrimination shown. That is not the case before you.

The plaintiffs -- I am sorry, the respondents made no challenge either to Section 39, the Massachusetts Seniority Statute, or to layoffs by its terms. They made no further assertion of any new civil rights violation.

I would submit to you that in framing relief the District Court cannot disregard the congressional policies enacted in Section 703(h) of Title VII, protecting and conserving earned seniority rights. I submit to you that that statute extends an immunity to routine applications of seniority systems irrespective of disparate impacts.

QUESTION: Mr. McMahon, what is your theory on how 703(h) gets into this case since the action wasn't brought under Title VII?

MR. MC MAHON: Your Honor, there were two actions. In the police case, the police decision had been adjudicated prior to the effective date of Title VII's application to municipalities and local governments. In the firefighter case, the plaintiffs', private plaintiffs' complaint originally asserted only violations of the Fourteenth Amendment in Sections 1981 and 1983. That complaint was filed in November of 1972. The United States filed a complaint repeating those same grounds and asserting a Title VII ground in February of 1973.

The focus in both complaints was upon examinations conducted no later than August 1971 and on recruitment techniques. It may be that one could argue that there was never a Title VII violation ever present in these cases. However, I have to note that the record would also show that in April of 1972 a Boston eligibility list was established from the August 1971 exam and some 86 non-minority firefighter appointments were made prior to the filing of the plaintiffs' complaint. Thereafter, the state agencies voluntarily ceased using that list so that there may be a Title VII connection in that respect, but the parties never focused on it in litigation and the theories in both cases, as they were stated by the District Court, were on the Fourteenth Amendment and on the Constitution, not Title VII.

But, even if there is a constitutional basis to this case, I would conclude that the Section 1988 of 42 US Code would require a District Court to shape relief in an employment case based on constitutional grounds according to other federal law. Such other federal law should be Section 703(h).

You are really redressing, in the constitutional sense, individually violations and only individual rights can be violated. I think then that you would use the same sort of constructive seniority approach that this Court has approved in Franks and approved again in Teamsters and has commented on several times, most recently in Ford Motor Company and in Zipes, in order to extend rightful place relief.

So, even under the Constitution or Title VII, I think you come to the same result, Your Honor.

In this case, the District Court did establish four priority pools. The first priority pool, the Group A, consisted of all persons who took the August 1971 or earlier examination and failed. The second pool, with which we are concerned, is the Group C. That consisted of all non-minority persons who could not qualify for admission into Groups A but who had passed a new examination. I would submit that those persons who were Group C were not victims of any discrimination, any act of discrimination, and that the conferral of a random benefit upon them without establishing any victim identification was not only inconsistent with this Court's decision in Teamsters, but, indeed, it bears upon the claim that the disadvantaged senior firefighters have that their rights were invaded by the order in the sense that they lost an equal protection component that the possessed.

May I add that the particular order benefit only persons who were not victims of racial discrimination or identified as victims of racial discrimination; that a use of a racial classification should only be approved, if it ever can be approved, when it is used as a remedy for a person who is a victim of past identified discrimination.

In this case, that surely was not the use. Instead, and I think both the District Court and the Court of Appeals' opinions reflect this fact.

At the August 30 -- I am sorry, the July 30, 1981 hearing before the District Court, and if I could paraphrase the District Court, they said that the only issue before the house is an issue of numbers, whether we were going to keep a certain number, whether we were going to decrease a certain number or whether we were going to increase a certain number. We heard arguments on all the other issues. That was the focus. It was on percentages.

Again, the Court of Appeals' opinion states that the purpose of the orders was to maintain a semblance of racial balance. I would submit to you that a purpose in that direction is constitutionally invalid.

Finally, I would ask the Court to look again at the impact of the orders in terms of any constitutional justification for the orders. The impact wasn't dispersed among some amorphous population. It fell on 83 non-minority firefighters, 96 non-minority police officers. And, if I can go outside the record for a moment, it actually fell on 123 non-minority firefighters, yet they are indistinguishable in terms of advantage of obtaining that employment, in terms of the risks in the kind of employment in which they were involved. They are indistinguishable from the beneficiaries of those orders save in two respects. The disadvantage individuals did not share a preferred racial characteristic and they were senior.

I have concluded. Thank you very much.

CHIEF JUSTICE BURGER: Mr. Dittmar?

ORAL ARGUMENT OF JAMES S. DITTMAR, ESQ. ON BEHALF OF THE RESPONDENTS

MR. DITTMAR: Mr. Chief Justice, and may it please the Court:

Because the Court voiced almost with one voice a concern about mootness, I would like to address that issue briefly. It is a threshold issue. As the suggestion of mootness, which we incorporated in our brief in the merits, indicates we view this case to be moot.

A Massachusetts' Act of 1982, Chapter 190 which was passed approximately one month after the Court of Appeals affirmed the District Court decision, mandates that all officers in both departments who were discharged during the reduction-in-force program in 1981 be rehired. It also, modifying what would otherwise be standard principles of Civil Service law, specifies that all of these individuals who were laid off and then rehired have lifetime job security from layoffs for lack of funds or reduction-in-force programs.

In addition, the City of Boston has begun rehiring additional officers over the last approximately nine months under mandates also coming from that same statute to raise and maintain levels of staffing in the two departments.

QUESTION: You said "rehiring." Do you mean --

MR. DITTMAR: Additional hiring. I did misspeak.

The case, we believe, is moot.

QUESTION: While you are there, what did they do about the back pay of these men who were laid off?

MR. DITTMAR: The back pay is now, to my understanding, in some instances pending before the Civil Service Commission. The pendency of that claim, however, does not make this controversy before this Court still a live controversy. The parties to that back-pay claim are not before this Court. Indeed, on our side of defense in this Court we have no complaint whatsoever whether the officers receive back pay.

QUESTION: Mr. Dittmar, wouldn't you say that the state could represent the Civil Service Commissioners?

MR. DITTMAR: The state could represent the Civil Service Commissioners but they sit as an adjudicator party.

QUESTION: But, they are subject to paragraph four of Judge Caffrey's decree, are they not?

MR. DITTMAR: Paragraph four of Judge Caffrey's decree has, for all intents and purposes, has expired, because there are no longer any terminations or layoffs with which the Civil Service officials could in any way interfere by any action that they take.

Moreover, Your Honor, this Court nor the lower court on any remand following any action on the merits can issue no relief that has any bearing upon that back-pay claim.

QUESTION: But, what if this judgment is reversed, that that level of force order is invalidated? Wouldn't the Civil Service Commission have -- In short, the layoffs were invalid. Wouldn't the Civil Service Commission have a pretty tough time denying back pay?

MR. DITTMAR: I don't see how the Civil Service Commission could deny a back-pay claim because an order which was valid and not reversed nor vacated at the time it was in effect is subsequently reversed on appeal. I believe, if anything in terms of alleviating what might be perceived as a hinderance on the part of the Civil Service Commission, a vacation for mootness grants them greater freedom, because that vacates the order.

QUESTION: Mr. Dittmar, do you know of any case similar to this where there has been an underlying controversy that is the subject of a basic decree and then there is a modification of the decree and we have simply said, well, this branch of the case is moot but the underlying controversy isn't?

MR. DITTMAR: I don't believe so, Your Honor. I don't believe --

QUESTION: You ask Mr. Carpenter.

MR. DITTMAR: I believe all of the cases in which a corollary -- Excuse me, Your Honor.

QUESTION: Allow me to finish my question.

MR. DITTMAR: Sure.

QUESTION: You are really asking us to go into kind of a new departure, aren't you, where the basic underlying case is not moot, to simply prune off a little branch of it and say, because it is moot, the whole thing is vacated?

MR. DITTMAR: No, quite the contrary. The basic underlying controversy is moot and my brethren are asking to have you -- because they say there is a little branch off to the side that is still alive keeps the underlying controversy alive.

QUESTION: Yes, but the underlying controversy is whether there should be a minority quota requirement in the Boston policy and fire systems, isn't there?

MR. DITTMAR: That has been resolved by the statute.

QUESTION: Well, that has been resolved by the District Court decree in the '70's.

MR. DITTMAR: Well, as between -- I am sorry, in the '70's, no, not in the '70's.

QUESTION: Well, when was the original decree entered?

MR. DITTMAR: The original decrees, the original decrees were in the early '70's, that is true, but those decrees terminate by their own terms once any hiring authority achieves a percentage representation of firefighters or police officers.

QUESTION: Opposing counsel said that that decree had not terminated so far as the City of Boston was concerned.

MR. DITTMAR: That is correct, but that decree is not before this Court. None of the parties to this proceeding have challenged any of the original decrees.

QUESTION: If that is a live controversy, any modification of it is a live controversy isn't it?

MR. DITTMAR: No, I don't believe so, Your Honor. The only controversy that is here before this Court is whether the modification was proper. The fact that there is an underlying lawsuit with on-going remedial measures in place which are not being challenged, stays in place, doesn't make the order which has brought us all before the Court here a live controversy.

QUESTION: Well, but, we decide mootness in terms of cases or controversies, not in terms of orders.

MR. DITTMAR: You decide it in terms of -- That is true. There is -- The Court has -- The lower court has continuing jurisdiction over this case, but the order, as to which certiorari was granted coming up to this Court, does no longer represent a live controversy. That issue, the relief that is sought, the controversy, the challenges to that relief, the arguments in support of that relief are not longer live. All of the officers have been rehired and they have all been given permanent civil service job security by virtue of statute.

QUESTION: But, according to the petitioners, it is a permanent order and any future action by the city or those governed by the order will have to be taken in conformity with it.

MR. DITTMAR: I disagree with that. I understand that that is their contention. I believe on the face of the order, Your Honor, it is plainly not a permanent order. It was argued for an entered to address a specific reduction-in-force program that took place in the summer of 1981. If it were, indeed, a permanent order ordering that the City of Boston maintains specific racial percentages indefinitely, and in that sense, permanent as is now contended, it surely would have been challenged on the merits as a matter of substantive and remedial law in the lower court and in the Court of Appeals under the teachings of this Court in the Swann, Charlotte, Mecklenberg case and under the teaching of this Court in the Pasadena Board of Education-Spangler case and it was never raised. There was never any attack on the invalidity of the order as a matter of substantive law, because it set a permanent racial quota, a permanent racial maintenance level, until that issue was raised to defeat the suggestion of mootness in this Court.

And, if you look at the terms of the order, the language, any reduction-in-force program is plainly in there in order to avoid any problems of evasion by the manner in which in the summer of 1981 on the factual record before the Court be programmed or structured in a way that would avoid the prohibition of the District Court's order.

QUESTION: Was the legislation ordering reinstatement consistent with the Court's order?

MR. DITTMAR: The legislation ordering reinstatement had nothing to do with the Court's order except that it followed the Court's order.

QUESTION: I just ask you again, was it consistent with it?

MR. DITTMAR: Was it consistent with the Court's order?

QUESTION: Yes. Was it consistent with the order to maintain a particular racial balance in the forces?

MR. DITTMAR: It lead to the same -- It lead to a consistent result, that is true, in the sense that --

QUESTION: Well, it ordered reinstatement of the very people that the Court thought should have been laid off.

MR. DITTMAR: No, no. The Court simply ordered that during the reduction-in-force program the level of minority representation obtained at the outset of that program be maintained. The city went ahead with a reduction-in-force program, laid off a certain number of minority and a certain number of non-minority officers and then completed its program. Then, the legislature specified that everyone who had been laid off should be rehired and that additional staffing minimums be maintained and that would simply bring the level of officers back to where they were before we all started plus a little bit more.

QUESTION: And the same ratio?

MR. DITTMAR: I don't know whether it is in the same ratio, Your Honor.

QUESTION: That was my question.

MR. DITTMAR: I can't answer your question as --

QUESTION: That is all I needed to know. Thank you.

MR. DITTMAR: I would like to turn to the merits of the case.

QUESTION: May I ask just one question to be sure I understand?

MR. DITTMAR: Yes, Your Honor.

QUESTION: Is it your position that you would be just as content to have the District Judge's order of August 7, 1981 vacated?

MR. DITTMAR: Well, I suppose having put the suggestion of mootness into the brief, I would have to say, yes, we are just as content.

QUESTION: I just wanted to be sure.

MR. DITTMAR: I think that is a matter of responsibility to the Court in laying out the full dimensions of the present circumstances to the Court.

QUESTION: Well, you made the suggestion contemplating that if the suggestion were favorably received that is exactly what would happen.

MR. DITTMAR: That is correct, Your Honor.

QUESTION: But, no more stripping down, just that one order?

MR. DITTMAR: Just that one order, that is correct. And, I believe --

QUESTION: And, the rest of the case remains alive?

MR. DITTMAR: The rest of the case remains alive, that is correct.

I believe Justice Rehnquist's suggestion or illusion to -- in any kind of vacation in the event of a determination by this Court of mootness, that that vacation would effect to any prior orders. I don't think that is properly before the Court now. The only thing that is before the Court is the challenge by the certiorari petitioners to the relief embodied in the August 7, 1981 order. Indeed, all parties to this case expressly, expressly disclaimed any challenge either to the original judgment or to the remedial measures that were in place prior to August of 1981.

QUESTION: Do you think it would have been improper in the original decree for the District Judge to have included provisions dealing with the contingency of possible reductions in force?

MR. DITTMAR: Well, Your Honor, I don't believe that it would have been beyond the Court's power to do so, but I believe that it would not have been a sound exercise in discretion.

QUESTION: Why wouldn't he have power today to keep in effect a portion of the decree which would deal with that contingency even if we can't see it immediately before us?

MR. DITTMAR: Because I think that in exercising discretion for remedial purposes to remedy the exclusion of minorities from public service a court should be very careful to consider the actual circumstances obtaining before it, to consider what extent of relief has been accorded under the on-going remedial program which is incomplete, how far along the remedy is, the extent of the imposition or the frustration of the remedy, which an otherwise proposed governmental action would work, the burden that any particular order would place upon third-party employees, and factors of that sort.

I don't believe that that kind of set of considerations ought to be considered in the abstract and ought to be laid down in advance. Those ought to be taken as the case proceeds in precisely the fashion in which the District Court -- Chief Judge Caffrey of the District Court did in this particular case.

QUESTION: If the case if not moot, now you are going to address the merits of the case, are you?

MR. DITTMAR: If the case is not moot, I would like to address the merits, yes, Your Honor.

The order that is under review on the merits is an order that arises out of a case in which, through the operation of Massachusetts Civil Service practices, minorities had been unconstitutionally excluded historically from the police and fire departments of the City of Boston. The District Court in both of these cases in the early 1970's adjudicated that minorities had been unconstitutionally excluded from these two departments. A remedial program was put in place in order to correct the effects, the condition of exclusion which these past practices have brought about.

The city and the state Civil Service officials were bound to participate in that remedial program. It was an order of the Court to remedy this condition which the discrimination had accomplished and ultimately they entered into consent orders with respect to both of the cases.

The program was on-going when, in the summer of 1981, the City of Boston proposed and started implementing a program such that in six weeks approximately one-half of all Black and Hispanic firemen in the City of Boston and one-half of all Black and Hispanic police officers were going to be laid off.

Another way of putting it is approximately one-half of all of the officers in both departments who had been hired under the remedial phase yet to be completed ordered by the Court were going to be laid off.

The Court's order came in that context and the Court's order said you may not reduce the present percentage representation levels if you pursue this reduction-in-force program which has been placed before me with statistics indicating its scope and impact.

I believe the order was proper and the issue before the Court on the merits is whether the District Court had the power to issue such an order to maintain and protect and promote the original purposes of its remedial orders going back to the original adjudications of liability and whether, in this particular instance on the matters and record before the Court, there was a sound and proper exercise of discretion. I believe the answer to both questions is the Court had its power, had the power and the Court properly exercised discretion.

My starting point is that having adjudicated discriminatory exclusion of minorities from a public governmental agency, in this case public services agencies, the Court has the power to remedy the effects, the exclusion that the past practices has brought about.

QUESTION: Could I ask you what seniority did the Blacks have or the minorities have when they were hired pursuant to the Court's order? Did they just start out from scratch?

MR. DITTMAR: They started out from scratch, Your Honor.

QUESTION: So, they didn't -- There was no attempt made to jump them over anybody else?

MR. DITTMAR: Two things, Your Honor. One, there was no attempt made to jump them up over anyone else with a kind of rightful place, retroactive seniority that the Court has spoken about in several cases. And, equally significant, no attempt was made to identify, to give notice to or bring before the Court and adjudicate who they were out there who had been deterred by years and years of exclusion of minorities.

QUESTION: So, at the time -- So, when the layoffs started, the minorities that had been hired were certainly junior to a lot of other people?

MR. DITTMAR: That is correct.

QUESTION: And junior to a lot of people who were then discharged pursuant to the order?

MR. DITTMAR: That is correct, Your Honor. That is correct.

It was a proper form of relief, however, in large part because what we had had in the past is we had had the exclusion of minorities from the police and fire departments and the original remedies, the original remedies were the predicate for the modification. The original remedies had been themselves a flexible compromise between the interests of those who had been discriminated against, those who were also already in these various forces and who would be jumped over at the time, and the interests of the municipal authorities in managing, as much as possible in the ordinary fashion, their hiring and operations of their departments.

When the layoffs came in 1981, however, because there had been no wholesale attempt to locate and give a remedy to all of the victims of discrimination originally or even to give a full rightful place, retroactive seniority remedy to those who were clearly identified at the outset, the Court once again, I believe, used flexibility to --

QUESTION: When you say "clearly identified at the outset," what do you mean?

MR. DITTMAR: That would have been individuals who had taken and passed discriminatory examinations and who could be counted -- whose noses could be counted so to speak.

But, this Court --

QUESTION: But, if they took and passed the examination --

MR. DITTMAR: Took and failed the examination. Did I misspeak? I am sorry, Your Honor. Took and failed the old examinations.

The unions --

QUESTION: But, you were making the argument on behalf of those that didn't, too.

MR. DITTMAR: What I am arguing for, Your Honor, is flexibility for the District Court in fashioning remedies to remedy the effects of long-standing exclusion of racial minorities from government service.

QUESTION: And, you make that argument on behalf of all those who were hired, but whom you can't prove or you don't allege were themselves ever discriminated against.

MR. DITTMAR: No, no, no, no. Many who were hired were discriminated against, many who never got hired --

QUESTION: Yes.

MR. DITTMAR: -- themselves were victims of discrimination.

QUESTION: I am just saying there are a lot of people who were hired pursuant to the Court's order that were never discriminated against themselves.

MR. DITTMAR: During the remedial phase --

QUESTION: I don't suppose there would be much of a case here if you could show that all of these people were in that category of people who could have been given rightful place seniority when they were hired.

MR. DITTMAR: If what Your Honor is saying is that there was an element of the original remedial measures was an affirmative action type of order, that is the case.

QUESTION: Yes, all right.

MR. DITTMAR: That is the case. That is not now before the Court, but that is, indeed, an accurate description of the original orders.

QUESTION: Well, it is certainly before the Court in the sense that when we get to the merits of reviewing the District Court's injunction against firing. It might make some difference as to whether the District Court acted properly if all of the hirees under the minority program had, in fact, been discriminated against or if some of the hirees had never been the victims of discrimination.

QUESTION: If that weren't the case, I doubt there would be a case here.

MR. DITTMAR: Except that there is a great deal of complexity in this. For example --

QUESTION: Well, I think -- I know as much about the complexity on that particular issue, I think, as I need to know.

MR. DITTMAR: One of the issues here is that everyone who ultimately was hired had to take civil service examinations and these civil service examinations were never validated ever. And, in fact, given the results over the years, even since the original decrees, of those examinations under EEOC standards, they would be prima facie invalid exams. In a sense, almost every minority applicant and ultimately hiree during the course of remediation here has been a victim of the same type of discrimination that prompted this litigation at the outset.

But, the point that I would like to make is confronted back in the early 1970's with governmental practices which had resulted in an exclusion, a dramatic, virtually wholesale exclusion of minorities from public service, public safety forces and then confronted with an effort in 1981 to go back a great half step of the whole step that had been taken, what was the proper extent of the power of the federal court to effect a remedy? And, I believe the proper extent is defined by a number of the opinions of the Justices of this Court indicating that race conscious, affirmative, if you will, remedies, without requiring nose counting proof of individual victimization, are appropriate where there has been an adjudication by a competent tribunal looking at the specific situation which is going to be affected by the remedial measure that there has been unconstitutional discrimination and that we have here. We have it in the original findings of this Court.

The Court chose at the outset a remedial measure designed not to leap over everyone who was already there and give the minorities who had been discriminated against their rightful place, not even to go out and find all of the minorities who had been excluded, but to work some balance and that balance was an affirmative action program. And, I suggest that is an appropriate balance for a court to strike in issuing a remedial or designing a remedial program. And, that program was in effect for a number of years. It was on-going. The parties were committed to it. Then, in 1981, the City of Boston, one of the parties to that program, backed out and said one-half of everyone who has been hired we are going to lay off in six weeks.

And, the Court at that time took what I believe was another flexible step to preserve the remedial program which was incomplete and to promote the original objectives. It didn't advance the interests of Blacks and Hispanics over whites in absolute numbers. It didn't prohibit any layoffs of minorities. The burden of the layoff program which was instituted by the City of Boston fell on minorities as well as on white officers. The Court did not take away from the City of Boston or the state civil service officials for that matter their powers and prerogatives to make the decisions that they felt were appropriate. The Court did not -- The City of Boston, by the way, and its Police Commissioner and its Fire Commissioner did not oppose the relief that we sought in the District Court, did not participate in the appeal even and are obviously not before this Court today.

There was no trammeling of the interests of local government in managing its own affairs. The program was a balanced program to the extent to which the Court's order addressed the operation of a civil service system. In fact, it provided that that system should be preserved as much as possible. The Court's order specifically provided that any individuals who were laid off in accordance with the prohibitory terms of the order during the course of that program the representation levels be maintained and even those individuals who were laid off, they should get restored to service with full seniority as of the time they were laid off. And, indeed, that is exactly what happened.

QUESTION: What was the reason for paragraph four of Judge Caffrey's order where it says in the event that a police officer's appeal of his termination to the members of the Civil Service Commission challenges the method of termination set forth herein. The members of the Civil Service Commission are restrained and enjoined from disapproving, invalidating, or interfering with the termination on that basis?

MR. DITTMAR: The purpose of that provision, Your Honor, was to insure that as a matter of state civil service law, if there was compliance by the city with the order, the Civil Service Commission would not overturn that in such a fashion as to require the layoffs of minorities in contravention of the Court's order. The Court's order was simply -- has as it essence only one provision and that was that during that program, and only during that program, minority percentages be maintained.

The other provisions of the order were designed to insure that that not be sabotaged, that is all. And, for that matter, Your Honor, that provision, in my opinion, has no continuing validity, no continuing vitality, I am sorry, I should say.

Now, one other point that is raised by the unions is that the burden of the Court's order falls on third parties. That is true. I believe this Court's orders have clearly established that where the highest national priority of remedying race discrimination, and in this case we have virtually, as I have said, exclusion of minorities from the police and fire departments of the City of Boston. It is appropriate for third parties to share that burden. It didn't fall all on them as I have pointed out. Minorities were laid off and the Court was careful to preserve as much as possible the provisions of the state civil service seniority scheme of things in the event of the very kind of thing which happened which was the political solution to these problems which was frustrated until the day after the District Court order came down was ultimately lifted and a resolution was found.

Seniority expectations after all are not vested rights. In Massachusetts they are defeasible at any time by will of the legislature. We don't have involved here collective bargaining agreements which is the fruit of collective bargaining efforts or organized labor. We don't have an interference with national policies favoring collective bargaining arrangements.

In short, the extent of burden that the order places on others is within the permissible scope of the District Court and the District Court took care not to step any further than it had to.

I would like to just conclude by pointing out that the efforts in this country through legal measures to eradicate several hundreds years of race discrimination are not many years old, barely 25 years, and one of the hallmarks of what this Court has done by way of giving direction to the lower courts is to vest the lower courts with flexibility to deal with the very difficult circumstances, practical, political, and economic, that they face.

I believe that the District Court and the Court of Appeals in this case exercised that kind of flexibility wisely and I urge the Court to affirm and not deprive the lower courts of the needed flexibility to meet this pressing national challenge.

Thank you.

CHIEF JUSTICE BURGER: Mr. Barnico, do you have anything further?

MR. BARNICO: No. Thank you, Your Honor.

CHIEF JUSTICE BURGER: Thank you, gentlemen, the case is submitted.

(Whereupon, at 2:54 p.m., the case in the above-entitled matter was submitted.)