Bushey v The New York State Civil Service Commission Reply Brief for Defendants-Appellants

    To Be Argued By: 
CHARLES R. FRASER

UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

JAMES BUSHEY, et al..
Plaintiffs-Appellees,

GERALD A. WELLS, et al.,
Defendants-Intervenors-Appellees, 

' -against-
NEW YORK STATE CIVIL SERVICE COMMISSION, et al.,

Defendants-Appellants.
GLENDA F. LEATH,

Defendant-Intervenor-Appellant.

ON APPEAL FROM THE UNITED STATES 
DISTRICT COURT FOR THE NORTHERN 
DISTRICT OF NEW YORK

REPLY BRIEF FOR DEFENDANTS-APPELLANTS

’ ROBERT ABRAMS 
Attorney General of the 
State of New York 

Attorney for Defendants- 
Appellants

BARBARA B. BUTLER Office & P.0. Address
JUDITH T . KRAMER Two World Trade Center
CHARLES R. FRASER New York, New York 10047
Assistant Attorneys General Tel. (212) 488-7489
of Counsel



TABLE OF CONTENTS

Has
Table of Authorities................................... ii
Preliminary Statement.................................. 1
Argument............................................... 2
POINT I - NO PLAINTIFF OR WELLS-INTERVENOR

PROVED IRREPARABLE HARM................. 2
POINT II - THE KIRKLAND LIEUTENANTS SETTLEMENT

BARS THE PRELIMINARY INJUNCTION......... 6
Conclusion............................................. 8



TABLE OF AUTHORITIES

Cases Rage

Bushev v. New York State Civil Service Commission,
571 F. Supp. 1562 (N.D.N.Y. 1983)..... .............. 3

Cassidy v. Municipal Civil Service Commission,
37 N.Y.2d 526 (1975)....... ............. ........ 5

Caulfield v. Board of Education,
583 F . 2d 605 (2d Cir. 1978)..'................... . 3

Firefighters Local Union No. 1784 v. Stotts,
___ U.S.   , 104 S. Ct. 2576 (1984)......... ....... 7

Pennhurst State School and Hospital v. Halderman,
___ U.S.   , 104 S. Ct. 900 (1984).................. 6

Tanzosh v. New York City Civil Service Commission,
58 A .D .2d 522 (1st Dept. 1977), aff'd,
44 N . Y . 2d 906 (1978)... .................... .........  5

United States v. Armour & Co.,
402 U.S. 673 (1971) ................................. . . 8

Other Authority
New York Civil Service Law § 25.................... 5

§ 56....................... . 5
§ 65 (2).......... ..........  6

28 U.S.C. § 1651 ("All Writs Act")............ ........ 5
42 U.S.C. §§ 2000e et seq.

("Title VII")....... 3, 4



UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

JAMES BUSHEY, et al.,
Plaintiffs-Appellees, 

GERALD A. WELLS, et al.,
Defendants-Intervenors-Appellees, 

-against-
NEW YORK STATE CIVIL SERVICE COMMISSION, et al.,

Defendants-Appellants.
GLENDA F. LEATH,

Defendant-Interven.or-Appellant.

ON APPEAL FROM THE UNITED STATES 
DISTRICT COURT FOR THE NORTHERN 
DISTRICT OF NEW YORK

REPLY BRIEF FOP DEFENDANTS-APPELLANTS

Preliminary Statement

This brief is submitted by defendants,* * in reply to 
certain new arguments in plaintiffs’ brief, dated May 8, 1985, 
and Wells-intervenors' brief, dated May 6, 1985; and to correct 
some of the more egregious factual misstatements in those briefs

* Abbreviations and defined terms are set forth ir defendants 
appeal brief, dated April 22, 1985.



ARGUMENT

POINT I

NO PLAINTIFF OR WELLS-INTERVENCR 
PROVED IRREPARABLE HARM.

Defendants placed before the District Court precise, 

detailed and comprehensive facts showing the effect on each- 
plaintiff and Wells-intervenor of use of the Bushey list, the 
Kirkland list or the unadjusted Bushey list. (A 653-87.)
Neither plaintiffs nor Wells-intervenors attempted competent 
rebuttal of this showing, despite plaintiffs' present claim to 
have "placed extensive proof of irreparable harm before the 
District Court." (Plaintiffs' brief, p. 15.)

s

Plaintiffs now argue at great length, based solely on a 
chart prepared by plaintiffs' counsel, and wholely without 
citation to the record, that certain of the plaintiffs* would be

* Wells-intervenors contend that defendants do not believe 
the preliminary injunction to be unduly broad. (Wells- 
intervenors' brief, p. 30.) In fact, defendants demonstrated the 
injunction's overbreadth by reference to traditional preliminary 
injunction standards of irreparable harm and likelihood of 
success. Here, with 13 plaintiffs and five Wells-intervenors, 
Judge Miner has set aside more than 50 captain appointments, a 
number which will grow during the litigation. A maximum of 13 
can have a likelihood of success, and defendants demonstrated 
that in fact no individual will be entitled to final injunctive 
relief. Defendants further showed that a maximum of three 
individuals would suffer any cognizable harm absent the 
preliminary injunction and that those three would sufter no 
legally "irreparable" harm. Plainly, the District Court's 
sweeping preliminary injunction goes too far —  the only arguable 
point here is whether any injunction should have issued.

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harmed by use of the Kirkland list, (Plaintiffs' brief, pp. 
16-17.) None of this is in the record -- in fact, the competent 
record is squarely to the contrary.

Wells-intervenors argue similarly without factual 
support that use of the Kirkland list "may" cost certain 
Well-intervenors their promotions, or "could" cost them 
appointments to "specific, desirable vacancies." (Wells- 
intervenors1 brief, p. 16.) The record is wholly devoid of 
evidence that either of these possibilities is more than 
speculation. Cf. Caulfield v. Board of Education, 583 F. 2d 605, 
610 (2d Cir. 1978) (absent evidentiary showing, District Court 
cannot find irreparable harm). In any event, such harm is not 
irreparable. If any individual is precluded during the 
litigation from appointment to a specific facility, to which he 
can by the end of litigation show entitlement, the District Court 
has complete power to make him whole.* Neither plaintiffs nor 
Wells-intervenors cite any Title VII authority for the 
proposition that the harm they claim to face will be irreparable 
at the close of the lawsuit if such relief is merited.

* Wells-intervenors contend that back pay is unavailable tc 
them by virtue of the District Court's prior denial of back pay 
to plaintiffs. (Wells-intervencrs' brief, pp. 17-18, citing 571 
F. Supp. at 1580-81.) Judge Miner did not hold back pay to be 
unavailable, but to be unwarranted. Obviously, inability to 
recover back pay when the facts, law and equities do not merit it 
is not irreparable harm.

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Perhaps recognizing these plain deficiencies, 
plaintiffs have resorted to the fantastic claim that defendants' 
use of the Kirkland list, "disregard[ing] the results of the 1982 
examination," would constitute purposeful discrimination against 
plaintiffs because of their race (Plaintiffs' brief, p. 23), and 
that the threat of such discrimination is irreparable harm per 
se. (Id., p. 20.) Since both the Kirkland list and the Bushev 
list contain minorities and whites in nearly identical 
proportions (addendum to Leath-intervenor's brief, pp. 30-32), 
and since defendants' irrevocable intention to use the Kirkland 
list predates any knowledge of any individual's or race's 
placement on the new list (A 635-36, 653),* plaintiffs' belated 
contention is self-evidently absurd. (Plaintiffs do not allege 
that the Kirkland list itself treats them, or white candidates 
generally, in any constitutionally questionable manner.)

Plaintiffs and Wells-intervenors claim without a single 
citation to Title VII authority that they will be entitled to 
final injunctive relief if they prevail on the merits. Even if 
that is so, which defendants deny, then plaintiffs' claims are 
not moot, and this preliminary injunction does not serve the 
asserted function of preventing mootness, which the District

* The record is plain, contrary to contentions of both 
plaintiffs and Wells-intervenors, that defendants' position has 
been consistent from the beginning. Defendants have always 
advised all parties that the Bushey list could be used until the 
Kirkland list issued, if the November 4, 1982 stay were lifted. 
At absolutely no time have defendants suggested that the Bushey 
list could be used after the Kirkland list issued.

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Court found to be irreparable harm. If plaintiffs and 
Wells-intervenors will not be entitled to final injunctive 
relief^ the preliminary injunction still accomplishes nothing.
In short, under any reading of the law, the. preliminary 
injunction prevents no harm that could not be fully undone by 
final judgment if such were warranted.

Wells-intervenors claim that the All Writs Act, 28
U.S.C. § 1651, permits a District Court to prevent "improper"
conduct by the defendants. (Wells-intervenors' brief, p. 20.)
Both Wells-intervenors and plaintiffs claim that use of the
Kirkland list instead of the Bushev list would violate New York
State lav/. This view is wrong for two reasons and irrelevant for
two others. First, the Civil Service Commission.has the power to )
"rescind any examination or eligible list" (New York Civil 
Service Law § 25), and the mere promulgation of an eligible list 
plainly vests no rights in an individual on that list. E .q., 
Cassidy v. Municipal Civil Service Commission, 37 N .Y .2d 526, 529 
(1975)• Tanzosh v. New York City Civil Service Commission, 58 
A.D. 2d 522, 523 (1st Dept. 1977), aff'd, 44 N.Y. 2d 906 (1978) 
("appearance of petitioner's name on an eligible list was a 
subjective 'expectancy' and did not create any vested right to 
appointment"). Second, Civil Service Law § 56, relied on by 
plaintiffs and Wells-intervenors, requires that a list be "in 
existence for one year." The view of the Civil Service

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Commission, entitled to some deference, is that this requirement 
does not apply to a list that has never been used at all.*

In any event, the correct resolution of State law is 
unnecessary, first, because federal courts lack jurisdiction to 
order State officials to comply with State law, Pennburst State 
School and Hospital v. Halderman, _____ U.S. , 104 S. Ct. 900 
(1984), and second, because even if State law is contrary to the 
Kirkland Lieutenants settlement, it is overridden by the federal * * * * §

order.

POINT II

THE KIRKLAND LIEUTENANTS SETTLEMENT 
BARS THE PRELIMINARY INJUNCTION.

Neither plaintiffs nor Wells-intervenors seriously 
attempt to defend Judge Miner's view that the Kirkland Lieutenant 
settlement creates no "legal obligation to make appointments off 
of the Kirkland list." (A 893.) Instead, they argue an accurate 
but irrelevant proposition: that the Kirkland. Lieutenants 
settlement was entered into in contemplation that the Bushev list 
would be used, and that therefore the settlement does not require 

that the Bushey list never be used.

* Plaintiffs and Wells-intervenors are curiously selective in
their resort to State law. As plaintiffs have often noted in
other contexts, New York law prohibits provisional appointments 
of more than nine months duration. (New York Civil Service Law
§ 65 [2] .) The preliminary injunction plainly exacerbates the 
delay in ending the provisional status of virtually all of the 
Department of Correctional Services' captaincies.

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As defendants have previously demonstrated, the
Kirkland. Lieutenants settlement requires that the Kirkland list 
be used upon its promulgation. (Defendants' brief, pp. 29-35.) 
That settlement fixes a maximum time for promulgation of the 
Kirkland list, but not a minimum time. The only unforeseen 
circumstance was that use of the Bushev list would be stayed 
throughout its 27-month existence - but since, under the 
settlement, the Kirkland list could have issued at any earlier 
time, the unforeseen stay did not abridge any rights the Kirkland 
Lieutenants settlement created or recognized.* * If Firefighters
Local Union No. 178 4 v . Stotts, ___ U.S. , 104 S. Ct. 2576
(1984), has any applicability here at all, it surely requires

* As to plaintiffs, there is room for considerable doubt that 
the stay against use of the Bushev list was unforeseen. (A 
634-35.) Counsel for plaintiffs here appeared in Kirkland 
Lieutenants on September 24, 1982, on behalf of a large group of 
white intervenors. The same counsel moved on November 2, 1982 
for a preliminary injunction against use of the Bushey list, 
which motion resulted on November 4, 1982 in the entry of the 
stay against use of the Bushey list.

Contrary to the Wells-intervenors' contention, Judge 
Griesa did not approve the Kirkland Lieutenants settlement on 
September 8, 1982, but on November 9, 1982 —  five days after 
entry of the stay against use of the Bushey list. (See Order of 
Thomas P. Griesa, U.S.D.J., dated September 30, 1982, correcting 
error of "new member of my staff" in inadvertently signing the 
"Court Approval" line of the then-proposed Kirkland Lieutenant 
settlement.) Therefore, to the considerable extent that the 
Wells-intervenors' interpretation of the Kirkland Lieutenants 
settlement turns on their understandably erroneous reconstruction 
of its chronology (Wells-intervenors' brief, pp. 27-29) , their 
interpretation is unfounded.

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that the clear intent of the settlement {that the Kirkland" list
be used upon promulgation) not be abrogated in favor of 
plaintiffs' and Wells-intervenors' self-interested view of how 
the parties to that settlement might have accommodated the 
November 4, 1982 stay had they foreseen it.*

CONCLUSION

For the reasons set forth, the order of the district 
court dated March 14, 1985 must be reversed, and the preliminary 
injunction must be vacated.

Dated: New York, New York
May 15, 1985

BARBARA B. BUTLER 
JUDITH T. KRAMER 
CHARLES R. FRASER 
Assistant Attorneys General 
of Counsel

Respectfully submitted,
ROBERT ABRAMS 
Attorney General of the 
State of New York 

Attorney for Defendants- 
Appeilants

Office & P.0. Address 
Two World Trade Center 
New York, New York 1004"7 
Tel. (212) 488-7489

* The Wells-intervenors, represented as unnamed class 
plaintiffs in Kirkland Lieutenants, contend that they are more 
competent to testify to the meaning of the settlement than are 
the attorneys who actually negotiated it. Since a settlement 
"embodies a compromise ... [of the] opposing purposes [of] the 
respective parties," United States v. Armour & Co., 4C2 U.S. 673 
681-82 (1971), since that compromise was negotiated by counsel, 
not by the Wells-intervenors, and since the Wells-intervenors do 
not even allege that they they had knowledge of the substance of 
those negotiations, it is plain that the only competent evidence 
in the record here is the testimony of the negotiating attorneys 
(A 631-35, 899-900.)