UNITED STATES OF AMERICA, PETITIONER V. AFRO-AMERICAN POLICE ASSOCIATION, INC., ET AL. No. 85-1404 In the Supreme Court of the United States October Term, 1985 Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit The Solicitor General, on behalf of the United States of America, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Second Circuit in this case. /1/ PARTIES TO THE PROCEEDINGS The parties to these proceedings are identified in the petition for a writ of certiorari, No. 85-1085 (at ii) filed by the Afro-American Police Association, Inc., et al., plaintiff-intervenors in the instant case. TABLE OF CONTENTS Parties to the proceedings Opinions below Jurisdiction Statute involved Question presented Statement Reasons for granting the petition Conclusion Appendix OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A6) /2/ is reported at 779 F.2d 881. The opinion of the district court (Pet. App. B1-B4) is reported at 609 F. Supp. 1252. JURISDICTION The judgment of the court of appeals (App., infra, 1a-2a) was entered on December 19, 1985. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE INVOLVED Section 706(g) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(g), provides in pertinent part: No order of the court shall require * * * the hiring * * * of an individual as an employee * * * if such individual * * * was refused employment * * * for any reason other than discrimination on account of race, color, religion, sex, or national origin * * * . QUESTION PRESENTED Whether a remedial decree in an action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., may award preferences in hiring based solely on race, ethnic background, or sex to persons who are not actual victims of the employer's discrimination. STATEMENT 1. The United States filed suit against the Buffalo Police Department in 1973, alleging a pattern or practice of discrimination based upon race, sex, and national origin against blacks, women, and Spanish-surnamed Americans, in violation of Title VII of the Civil Rights Act of 1964, other federal statutes, and the Fourteenth Amendment. In 1974 the United States filed a similar action against the Buffalo Fire Department. The cases were consolidated and, following a trial on the merits, the United States District Court for the Western District of New York found that the City had violated Title VII by unlawfully discriminating against minority and female applicants for police and firefighter positions (Pet. App. D1-D45). The court entered a final decree on November 23, 1979 (id. at E1-E10), requiring the City, among other things, to adopt and seek to achieve "interim goal(s)" of making 50% of all police officer and firefighter appointments from among qualified black and Spanish-surnamed applicants (id. at E2). These hiring goals were to remain in effect until the minority composition of the uniformed personnel of the police and fire departments at least equaled the percentage of minorities in Buffalo's labor force or until the selection procedures for these positions were validated in accordance with the Uniform Guidelines on Employee Section Procedures, 43 Fed. Reg. 38290 (1978) (Pet. App. E2-E3). /3/ The decree also established a similar 25% hiring goal for women in the police department (ibid.). These interim goals were affirmed on appeal (id. at C1-C8). 2. On January 30, 1985, the United States moved for modification of the final decree, on the ground that this Court's decision in Firefighters Local Union No. 1784 v. Stotts, No. 82-206 (June 12, 1984), rendered the hiring goals unlawful. The United States argued in its motion and supporting memoranda that Stotts prohibits federal courts from including in remedial decrees in Title VII cases employment preferences based on race, national origin, or sex that benefit persons who are not victims of the defendant's unlawful employment practices. The City of Buffalo and a group of white plaintiffs-intervenors /4/ supported our motion; several other minority and female plaintiffs-intervenors /5/ and an amicus curiae /6/ opposed it. On June 5, 1985, after a hearing on the United States' motion to modify the decree, the district court entered an opinion and order denying the motion (Pet. App. B1-B4), holding that the Second Circuit's rejection of our interpretation of Stotts in EEOC v. Local 638, 753 F.2d 1172 (1985), cert. granted sub nom. Local 28, Sheet Metal Workers' International Association v. EEOC, No. 84-1656 (Oct. 7, 1985), was binding (as we had conceded) and correct (Pet. App. B3-B4). 3. On August 5, 1985, the United States filed a timely notice of appeal. /7/ On December 19, 1985, the court of appeals affirmed, concluding, as it had in Local 638, that "race-conscious" relief was available under Section 706(g) of Title VII, 42 U.S.C. 2000e-5(g), and consistent with this Court's decision in Stotts because "(1) the remedy did not conflict with a bona fide seniority plan protected by Section 703(h) of Title VII, (2) the remedy provided prospective rather than 'make-whole' relief, and (3) the remedy was based on the district court's finding of intentional discrimination rather than on a consent decree" (Pet. App. A4 (citing Local 638, 753 F.2d at 1186)). REASONS FOR GRANTING THE PETITION This case presents a question of substantial and recurring importance regarding the limitations upon the remedial authority of the federal courts in litigation brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. At issue here is the validity of hiring preferences based on race, ethnic background, and sex accorded to individuals who have not been identified as actual victims of discrimination at the expense of innocent third parties. Because this Court has agreed to hear two cases raising this issue this term -- one of which the court of appeals in this case relied on as controlling (Pet. App. A2-A3, A4) -- we suggest that this petition for certiorari be held pending disposition of those cases. 1. This Court discussed the limitations that Section 706(g) of Title VII, 42 U.S.C. 2000e-5(g), imposes upon a court's remedial authority in Firefighters Local Union No. 1784 v. Stotts, No. 82-206 (June 12, 1984). This petition seeks review of one of a series of recent lower court decisions upholding quota relief and giving the Court's decision in Stotts what we regard as an overly narrow and improper interpretation. The Court has recently agreed to hear two of those cases, Local No. 93, International Association of Firefighters v. City of Cleveland, cert. granted, No. 84-1999 (Oct. 7, 1985), and Local 28, Sheet Metal Workers' International Association v. EEOC, cert. granted, No. 84-1656 (Oct. 7, 1985). Also pending before the Court is a case challenging the validity under the Equal Protection Clause of a similar (racial) preference scheme, Wygant v. Jackson Board of Education, cert. granted, No. 84-1340 (Apr. 15, 1985). The views of the United States as to the validity of such racial preferences under Title VII and under the Equal Protection Clause have been expressed in a brief as amicus curiae supporting the petitioner in Local 93 (at 6-30); in a brief on behalf of the EEOC in Local 28 (at 23-39); in a brief as amicus curiae supporting petitioners in Wygant (at 6-30); in our petitions for certiorari in Orr v. Turner, No. 85-177 (filed July 31, 1985) (involving statutory and constitutional challenges to a racially preferential consent decree) (at 12-25), and United States v. Paradise, No. 85-999 (filed Dec. 10, 1985) (involving a racial preference imposed on nonconsenting parties as part of a court order purporting to enforce earlier decrees entered by consent) (at 9-14); and in a brief as amicus curiae supporting certiorari in Devereaux v. Geary, No. 85-492 (filed Oct. 23, 1985) (involving statutory and constitutional challenges to a racially preferential consent decree). The instant case presents questions similar to those raised in Local 93 and Local 28. In Local 93, petitioner challenges a racial preference incorporated in a Title VII consent judgment; in Local 28, another Title VII case, the racial preference was, as in this case, awarded after trial. The decisions in Local 93 and Local 28 are likely to provide substantial clarification of the principles bearing on resolution of the question presented in this petition, so that a remand after this Court has decided these cases is likely to be merited. Alternatively, this case itself may provide the Court with an opportunity for further clarification of those principles in the wake of its decisions in the cases it has already agreed to hear. Accordingly, we suggest that the Court hold this petition pending disposition of Local 93 and Local 28. 2. We do not repeat the discussion of the Title VII question contained in our filings in Local 93 and Local 28, /8/ and add only the following observations pertaining to this case. As noted earlier, the court of appeals, relying upon its prior decision in Local 28, attempted to distinguish Stotts on three grounds. Regarding the first "distinction," our briefs in Local 93 (at 17-18) and Local 28 (at 27) respond to the court of appeals' argument that Stotts does not apply unless seniority rights are abridged. Second, as we discuss in our brief in Local 28 (at 27-29), the court of appeals erred in holding that Stotts does not apply to "prospective," class-based relief as opposed to retrospective, make-whole relief. Third, the fact that the district court here, unlike the district court in Stotts, predicated its order on findings of past intentional discrimination is plainly beside the point, as we discuss in our brief in Local 28 (at 29-30). Section 706(g) broadly governs all relief entered in Title VII cases. Nothing in Title VII, in Stotts, or in any other decision of this Court even remotely suggests that the remedial power of a Title VII court differs depending upon whether the discrimination is intentional. CONCLUSION The petition for a writ of certiorari should be held pending the court's disposition of Local 93 and Local 28. Respectfully submitted. CHARLES FRIED Solicitor General WM. BRADFORD REYNOLDS Assistant Attorney General MICHAEL CARVIN Deputy Assistant Attorney General ROGER CLEGG Assistant to the Solicitor General WALTER W. BARNETT DENNIS J. DIMSEY Attorneys FEBRUARY 1986 /1/ Although respondents Afro-American Police Association, Inc., et al., were prevailing parties in the court of appeals, they have filed a petition for a writ of certiorari (No. 85-1085) to review the Second Circuit's decision. We are filing simultaneously with our petition a memorandum in opposition to respondents' petition. /2/ "Pet. App." refers to the appendix to the petition for a writ of certiorari in No. 85-1085, filed by the Afro-American Police Association, Inc., et al., plaintiff-intervenors below. /3/ Neither condition has been met. /4/ William Blake, et al. In its memorandum to the district court of April 22, 1985 (at 4, 5), this group urged the court to delete "at least temporarily" those portions of the decree providing for quotas and goals. /5/ The National Association for the Advancement of Colored People, Inc., et al.; Sherman Abdallah, et al.; and the Afro-American Police Association, Inc., et al. /6/ The Puerto Rican Legal Defense and Education Fund, Inc. /7/ The United States was the only party to appeal. /8/ We have served copies of these filing on counsel for each of the other parties to the proceedings below. Appendix