Bushey v The New York State Civil Service Commission Reply Brief for Defendants-Appellants
Public Court Documents
May 15, 1985

12 pages
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Brief Collection, LDF Court Filings. Bushey v The New York State Civil Service Commission Reply Brief for Defendants-Appellants, 1985. 3d601531-b79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/171ac177-5f9d-4b6f-b9ba-216c5694a4d9/bushey-v-the-new-york-state-civil-service-commission-reply-brief-for-defendants-appellants. Accessed June 17, 2025.
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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. -2- 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. -3- 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. -4- 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 -5- 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. -6- 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. -7- 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.)