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

973 F.2d 18 | 1st Cir. | 1992

USCA1 Opinion









August 18, 1992 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1120

MASSACHUSETTS ASSOCIATION OF AFRO-AMERICAN POLICE, INC., ET AL.,
Plaintiffs, Appellees,

v.

THE BOSTON POLICE DEPARTMENT, ET AL.,
Defendants, Appellees.
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BOSTON POLICE SUPERIOR OFFICERS FEDERATION,
Intervenor, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Walter Jay Skinner, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Roney,* Senior Circuit Judge,
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and Pieras,** District Judge.
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James F. Lamond with whom Alan J. McDonald and McDonald, Noonan
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and Lamond were on brief for intervenor-appellants, Boston Police
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Superior Officers Federation.
Jonathan M. Albano with whom Marianne Meacham, Bingham, Dana &
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Gould, Alan J. Rom, and Lawyers Committee for Civil Rights were on
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brief for appellee, Massachusetts Association of Minority Law
Enforcement Officers.
William W. Porter, Assistant Attorney General, with whom Scott
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Harshbarger, Attorney General, was on brief for appellee, Personnel
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Administrator of the Massachusetts Department of Personnel
Administration.
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* Of the Eleventh Circuit, sitting by designation.
** Of the District of Puerto Rico, sitting by designation.

















PER CURIAM:



The appeal in this racial discrimination case involving the

employment and promotion of police officers in the Boston Police

Department (BPD) must be dismissed because, to the extent the

appellant, Boston Police Superior Officers Federation (Federation),

has standing, the challenge to the district court's amendment to a

prior consent decree is not ripe for judicial review at this time.

An understanding of the litigation that led to the original

consent decree and its amendment in 1991 is of interest but not

necessary to the decision on this appeal. The Massachusetts

Association of Minority Law Enforcement Officers (MAMLEO),1 filed the

original action in 1978 against the BPD and the Department of

Personnel Administration (DPA) alleging unlawful employment,

compensation, and promotional practices based on race in violation of,

inter alia, Title VII of the Civil Rights Act of 1964, 42 U.S.C.
_____ ____

2000e et seq. In 1980, the district court approved a consent decree
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to which all parties agreed.

The consent decree certified a class consisting of all present

and future Black officers in the BPD, and established goals and

timetables for the promotion of specified numbers of qualified Black

officers to the rank of sergeant. The decree also required that the

examinations for promotion be validated in accordance with the Uniform

Guidelines on Employee Selection Procedures, 29 C.F.R. 1607.1 et
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1 MAMLEO is the successor organization to the Massachusetts
Association of Afro-American Police which brought the underlying suit.
MAMLEO now acts as the plaintiff in this action.














seq., and required the BPD to provide training for all persons
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planning to take promotional examinations, with equal access to

minority applicants.

After certain intervening procedures and modifications, the

MAMLEO challenged the DPA's administration of state-wide police

promotional examinations scheduled for June 19, 1991 for sergeants,

lieutenants, and captains. After court rulings which, among other

things, permitted the DPA to administer the 1991 exams as scheduled,

the parties jointly filed an Agreement to Amend the Consent Decree to

settle MAMLEO's challenge to the 1991 exams.

The Federation, an organization representing sergeants,

lieutenants, and captains in the police force, was allowed to

intervene for the limited purpose of opposing the amendment to the

consent decree. The Federation challenges the amendment on this

appeal, as it did in the district court, to the extent that it extends

the terms of the decree to include promotional examinations for the

positions of lieutenant and captain. The Federation maintained that

the initial decree and a 1985 modification governed promotions to

sergeant positions only and did not cover promotions to lieutenant and

captain. It argues that the district court exceeded its authority in

applying the consent decree to lieutenants and captains. The merits

of that contention are not relevant to our decision that the case is

not ripe for review.

Under the terms of the amended decree, the BPD would limit the

promotions to the ranks of lieutenant and captain from the eligible

lists established from the results of the June 1991 examinations. The


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BPD had set forth its estimates of the numbers of promotions that its

staffing needs and budget constraints would permit during the next

year. It agreed that such constraints "will permit the promotion of

no more than twenty-five (25) officers to the rank of captain and six

(6) officers to the rank of lieutenant and agree[d] that it will not

promote more than that number of lieutenants and captains from the

1991 eligible list without plaintiff's consent, or, in the absence

thereof, leave of Court."2

The Federation challenges the consent decree on behalf of its

members who took the 1991 examinations, were put on promotional lists

for lieutenant and captain, and might be bypassed because of the

consent decree without being fairly considered for an appointment.

Until the situation arises, however, where there is a likelihood of a


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2 The district court recited the "salient features of the Agreement"
as follows:

1. Appointment of 85 sergeants from the list of patrolmen
who passed the 1991 examination. The BPD will use its best
efforts to increase the number of African-American sergeants
to 40, which would satisfy its obligations under the consent
decree;

2. Appointment of six lieutenants from the 1991 list;

3. Appointment of 35 [sic] captains from the 1991 list;

4. Offering a new state-wide examination for police
promotions in June of 1992, with the option to the BPD to
offer a special examination for Boston, provided that all
such examinations are certified as complying with the Uniform
Guidelines on Employee Selection Procedures and the 1991
lists will not be merged with the lists generated by the 1992
examinations; and

5. Termination of the consent decree and of this lawsuit upon
the completion of the above.


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vacancy for an appointment over and above the number of appointments

(25 captains, 6 lieutenants) specifically exempted under the consent

decree, there is no justiciable issue ripe for decision of whether the

consent decree would indeed result in such a person not being fairly

considered.

Ripeness doctrine is grounded in both Article III concepts and

discretionary reasons of policy. The central concern is whether the

case involves a merely hypothetical dispute. "The question of

ripeness turns on the 'fitness of the issues for judicial decision'

and 'the hardship to the parties of withholding court consideration.'"

Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev.
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Comm'n, 461 U.S. 190, 201 (1983) (citation omitted), quoted in W.R.
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Grace & Co. v. United States Envtl. Protection Agency, 959 F.2d 360,
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364 (1st Cir. 1992). The critical question concerning fitness for

review is whether the claim involves uncertain and contingent events

that may not occur as anticipated, or indeed may not occur at all.

See Lincoln House, Inc. v. Dupre, 903 F.2d 845, 847 (1st Cir. 1990).
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Clearly, the Federation's alleged injury is contingent upon events

that may not occur as anticipated or may not occur at all.

Any injury to the Federation is contingent upon: 1) a decision by

the BPD to promote more than six lieutenants or more than 25 captains,

and 2) the refusal of both the MAMLEO and the district court to allow

an additional promotion to be made from the 1991 lists. We agree with

the district court's conclusion that the "Federations's expectation

that more than six lieutenants are likely to be appointed before June,

1992, is illusory, to say the very least." The Federation's


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expectation that the DPA would want to appoint more than 25 captains

also is illusory. Thus, the Federation's claim is too hypothetical to

be fit for judicial review.

In addition, the Federation has not demonstrated that it will

suffer any hardship if judicial consideration is withheld. The

Federation can hardly claim hardship since the injury it alleges

cannot yet be proven and may never occur. If the contingent events

ever do occur, the Federation may then ask the district court to hear

its challenge to the amendment. There is no concern that the

Federation will lose its right to contest the issues presented on this

appeal. Indeed, the district court has stated: "If the situation

should change ... I will entertain an application for such further

amendment of the decree as the facts warrant." In light of the

contingent nature of the injury alleged by the Federation, and the

absence of any hardship if consideration is withheld, we hold that the

Federation's challenge to the caps in the amended consent decree is

not ripe.

The amended consent decree further stated that the BPD agreed

that its 1992 examinations for the ranks of sergeant, lieutenant, and

captain would be of a "significantly different type and/or scope" than

the 1991 exams. Upon the DPA's determination that the 1992 exams were

significantly different than the 1991 exams, the eligible lists

comprised of candidates who pass the 1992 exams would replace the 1991

eligible lists. The lists would not be merged. Because the

Federation has not yet acquired any rights in the merged or non-merged

lists, the Federation has no standing to contest this provision.


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An inquiry into standing generally seeks to determine "whether

the litigant is entitled to have the court decide the merits of the

dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498,
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95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); United States v. AVX Corp., 962
___________________________

F.2d 108 (1st Cir. 1992). The plaintiff must allege a personal stake

in the outcome of the controversy in order to warrant judicial review

and justify the court's use of its remedial powers. Warth, 422 U.S.
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at 498. The injury alleged must be distinct and palpable, and not

abstract or hypothetical. Allen v. Wright, 468 U.S. 737, 751, 104
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S.Ct. 3315, 82 L.Ed.2d 556 (1984). "A mere interest in an event -- no

matter how passionate or sincere the interest and no matter how

charged with public import the event -- will not substitute for an

actual injury." AVX Corp., 962 F.2d at 114. See generally United
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States v. Students Challenging Regulatory Agency Procedures (SCRAP),
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412 U.S. 669, 687, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973).

The Federation has failed to demonstrate a cognizable injury to

its members. The Federation has not shown that the merger provision

of the decree will have an adverse impact on its members' legitimate

promotional expectations. There is no evidence which establishes that

its members will be harmed or affected in any legally meaningful way.

The BPD has full discretion to determine the number of promotions

which are necessary. The DPA has the authority to agree to design

1992 exams which are significantly different from the 1991 exams and

to determine how long to maintain eligibility lists, and when to

cancel them. See Mass. Gen. L. ch. 31, 25. Applicants on
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eligibility lists have no vested interest in the maintenance of the


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lists for any period of time. See Stuart v. Roache, 951 F.2d 446, 455
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(1st Cir. 1991), cert. denied, U.S. , 112 S.Ct. 1948 (1992);
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Burns v. Sullivan, 619 F.2d 99, 104 (1st Cir.), cert. denied, 449 U.S.
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893 (1980). Having no standing to challenge the merger provision in

the district court, the Federation likewise has no standing to pursue

this appeal.

In any event, the merger issue would not be ripe for judicial

decision until the Federation could show that the non-merger would

affect the promotion of at least one of its members. Non-merger is

contingent upon the DPA's determination that the 1991 and 1992 exams

were significantly different. By law, only lists established from

promotional examinations "of the same type" may be merged. Mass. Gen.

L. ch. 31 25. Because the DPA has not yet made any comparison of

the two exams, Federation's challenge is too uncertain to merit

judicial review. W.R. Grace & Co. v. United States Envtl. Protection
___________________________________________________

Agency, 959 F.2d 360, 364-65 (1st Cir. 1991). Accordingly, the
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Federation's challenge to the district court's order amending the

consent decree is dismissed. Costs to appellees.



DISMISSED.
DISMISSED.














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