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

    To Be Argued Bv
RONALD G, DUNN, ESQ.

UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

Docket Nos. 85-7259 
8 5-

JAMES BTJSHEY, ROGER D. BELL, ROBERT W. FERBER, WILLIAM J. NORTON, 
ROBERT J. SEITZ, GEORGE BARTLETT, CHARLES PAGE, WAYNE WILHELM, 
WAYNE L. STRACK, ROBERT FUCCI, GARY H. FILION, EDWARD D. ROGAN, 
MILES BARNES, DONALD E. CLARK and GERALD SWEENEY, each Individu­
ally and,on behalf of all others similarly situated, f

Plaintiffs-Appellees,
-against-

THE NEW YORK STATE CIVIL SERVICE COMMISSION; JOSEPH VALENTI, in 
his capacity as President of the New York State Civil Service 
Commission and Civil Service Commissioner; JOSEPH GAMBINO and 
JAMES MCFARLAND, in their capacity as Civil Service Commissioner; 
THE NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES: and
THOMAS A. COUGHLIN, HI, in his capacity as Commissioner of the 
New York State Department of Correctional Services,

-and-
Defendants-Appellants,

GERALD A. WELLS, WILBUR I. WRIGHT, JOSEPH P. BATES, THOMAS D. 
HASKELL and PERCY JONES,

Defenaants-Intervenors-Appellees,
-and-

GLENDA F. LEATH,
Defendant-Intervenor-Appellant.

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

'M

BRIEF FOR PLAINTIFFS-APPELLEES

ROWLEY, FORREST AND O'DONNELL P.C. 
Attorneys for Plaintiffs-Appellees 
Office and Post Office Address 
90 State Street 
Albany, NY 12207 
(518) 434-6187

Of Counsel:
Ronald G, Dunn 
John H. Beaumont



TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES . . . 
PRELIMINARY STATEMENT . . 

QUESTIONS PRESENTED . . . 

STATEMENT OF THE CASE . . 

STATEMENT OF FACTS
A. THE UNIQUENESS OF CORRECTION CAPTAIN

P O S I T I O N S ....................... ..

B. THE 1982 EXAMINATION .....................

C. THE 1984 EXAMINATION . ...................

D. ' KIRKLAND CONSENT D E C R E E .................
E. THE PRELIMINARY INJUNCTION PROCEEDING . .

POINT I :THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION 
IN GRANTING THE PRELIMINARY INJUNCTION . . . .

A. THE STANDARD FOR REVIEW .................

B. IRREPARABLE HARM . . . . .  ...............
C. LIKELIHOOD OF SUCCESS ON THE MERITS . . .

D. BALANCING OF HARDSHIPS ...................

POINT II:THE PRELIMINARY INJUNCTION DOES NOT CONTRAVENE 
THE KIRKLAND CONSENT DECREE ...................

POINT III:THE PLAINTIFFS ARE ENTITLED TO ADDITIONAL RELIEF 
IN THE UNDERLYING ACTION .....................

CONCLUSION ..........................................

6

7

9
10

11

13
13
15
24

24

26

28
28

i



TABLE OF AUTHORITIES

Bushey v. New York State Civil Service Commission 571 2,4,5,
FSupp 1562 (NDNY, 1983); rev'd, 733 F2d 220 (2nd Cir., 11,13,14 
1984); cert. den. US 105 S.Ct. 803; reh. 21, 22,
den. ___ US ___ 105 S.Ct. 1384 (1985). 24, 28

Butler v. Crumlish, 229 FSupp 565, 568 (DCED Penn,
1964). 19

Cassidy v. New York City Department of Corrections 95
AD 2d 733 (1st Dept., 1983). , 20

City of Hartford v. Hills, 408 FSupp 879 (DC
Conn.,1975). 19

Donofrio v. Hastings 60 AD 2d 989 (4th Dept., 1978). 20

Doran v. Salem Inn, Inc., 422 US 922, (1975). 14

Drittel v. Friedman, 154 F2d 653 (2nd Cir., 1946) . 22

Dutton v. Cities Service Defense Corp., 197 F2d 458 
(8th Cir., 1952) 22

Firefighters v. Stotts ("Stotts"), US , 104
S.Ct. 2576, (1984) 26, 27

Florida Med. Assoc v. U.S. Dept, of Health, 601 F2d
199 (5th Cir., 1979) . 18

Frank v. Tishelman, 72 AD 2d 604 (2nd Dept., 1979) . 20

Franks v. Bowman Transportation Co, 424 US 747 (1976). 28

Friedman v. Meyers, 482 F2d 435, 438 n.4 (2nd Cir.,
1973). 21

CASES: Page

FTC v. Dean Foods Company, 384 US 597 (1966).
ii

19



Page

Fullilove v. Klutznick, 448 US 448 (1980). 23

Granfield v. Catholic University of America, 530 F2d 
1035, (DC Cir., 1976) . 14

Guiness & Sons, PLC v. Sterling Publishing Company, Inc. 
732 F2d 1095, (2nd Cir., 1984). 14

IBM v. Edelstein, 526 F2b 37 (2nd Cir., 1975). 3

ITT Community Development Corp. v. Barton, 569 F2d 
1351 (5th Cir., 1978). 18

Jack Kahn Music Co. v. Baldwin Piano & Organ Co., 
604 F2d 755 (2nd Cir., 1979). 24

Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 
F2d 70 (2nd Cir., 1979). 13

Kirkland v. New York State Department of Correctional 
Services, 552 F.Supp 667 (SDNY 1982), aff'd 711 F2d 
1117 (2nd Cir., 1983), cert. den. 104 S.Ct. 997 (1983).

8, 10 
11, 18, 
27

Loving v. Virginia, 388 US 1 (1967) . 23

Mena v. D'Amborse, 44 NY 2d 428 (1978). 18

Mitchell v. Cuomo, 748 F2d 804 (2nd Cir., 1984). 14, 20

Pacific Union Conference of Seventh-Day Adventists v. 
Marshall 434 US 1305 (1977) . 22

Personnel Administrator of Massachusetts v. Feeney, 
442 US 256 (1979). 23

Regents of the University of California v. Bakke, 
438 US 265 (1978). 23

Schuyler v. Department of Personnel, 39 NY 2d 851 (1976) 
aff'd 47 AD 2d 948 (2nd Dept., 1975).

iii
19



Page

Switzerland Cheese Assoc, v. E. Horne's Market, Inc. 
385 US 23 (1966) . 22

United Rubber, Cork, Linoleum and Plastic Workers v. 
Kirkhill Rubber Co. 367 F2d 956 (9th Cir., 1966). 22

United States v. Armour & Co. 402 US 673 (1971). 26

United States v. Second National Bank of North Miami, 
502 F2d 535 (5th Cir., 1974). 14

University of Texas v. Camenisch, 451 US 390 (1981). 15

Yates v. Grecco, 85 AD 2d 817 (3rd Dept., 1981). 20

CONSTITUTION AND STATUTES 

FEDERAL:

28 USC §1651 17-18

42 USC §1981 3, 21
42 USC §1983 3, 21
42 USC §2000 (d) Civil Rights Act Title VI 3, 21
42 USC §2000 (d) Civil Rights Act Title VII 
FEDERAL RULES OF APPELLATE PROCEDURE:

3, 21

28 USC §§1291 22

28 USC §1292 

NEW YORK STATE:

22

New York Civil Practice Law and Rules §205 

New York Civil Service Law

28

§56 8, 18, 28

§61 20

TREATISE:
Wright and Miller Federal Practice and Procedures 

§2948 at 20, 21
xv



UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT
Docket Nos. 85-7259 

85-

JAMES BUSHEY, ROGER D. BELL, ROBERT W. FERBER, WILLIAM J. NORTON, 
ROBERT J. SEITZ, GEORGE BARTLETT, CHARLES PAGE, WAYNE WILHELM, 
WAYNE L. STRACK, ROBERT FUCCI, GARY H. FILION, EDWARD D. ROGAN, 
MILES BARNES, DONALD E. CLARK and GERALD SWEENEY, each individu­
ally and on behalf of all others similarly situated,

Plaintiffs-Appellees,

-against-
THE NEW YORK STATE CIVIL SERVICE COMMISSION; JOSEPH_VALENTI, in 
his capacity as President of the New York State Civil Service 
Commission and Civil Service Commissioner; JOSEPH GAMBINO and 
JAMES MCFARLAND, in their capacity as Civil Service Commissioner; 
THE NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES: and
THOMAS A. COUGHLIN, III, in his capacity as Commissioner of the 
New York State Department of Correctional Services,

Defendants-Appellants,

-and-
GERALD A. WELLS, WILBUR I. WRIGHT, JOSEPH P. BATES, THOMAS D. 
HASKELL and PERCY JONES,

Defendants-Intervenors-Appellees,

-and-

GLENDA F. LEATH, Defendant-Intervenor-Appellant.

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

BRIEF FOR PLAINTIFFS-APPELLEES

PRELIMINARY STATEMENT
This is an interlocutory appeal from an order of the Hon. 

Roger J. Miner, District Judge for the Northern District of New 
York, granting a preliminary injunction enjoining the defendants-

1



xuirjj/ v at: 3 i & j 0 3  v n ^ i u

appellants ("State") from making permanent appointments from a 

Civil Service Eligible List to fill Correction Captain positions 

pending trial.
The plaintiffs-appellees ("plaintiffs") are a group of White 

candidates challenging the use of racial preferences to create 

the 1982 Civil Service Eligible List for Correction Captain. At 

the outset of the case, the State consented to an order prohibi­

ting permanent appointments from the racially adjusted 1982 

Eligible List pending the outcome of this case. After two and 

one half years of litigation including a previous appeal^, all 
discovery has been completed and a final disposition on the 

merits is forthcoming.
On the last day of 1984, the State published a new eligible 

list based on a later examination for Correction Captain, 
Eligible List No. 38-093. ("1984 Captains Eligible List"). The 
State announced that it was their intention to use the 1984 
Eligible List to permanently fill all existing Correction Captain 

positions including those positions which are the subject of the 

underlying case.
Upon the application of both the plaintiffs and the defend- 

ants-intervenors-appellees ("Wells Intervenors"), the District 
Court granted a preliminary injunction prohibiting the State from 

making any permanent appointments from the 1984 Eligible List to

*The District Court previously granted summary judgment to the 
plaintiffs. That judgment was reversed on appeal and the entire 
matter was remanded for trial. Bushey, et al. v. New York State 
Civil Service Commission, 571 FSupp 1562 (NDNY, 1983); rev'd 733
F2d 220 (2d Cir., 1984); cert. den. ____ US _____ , 105 S.Ct. 803
(1985); reh den. US , 105 S.Ct. 1384 (1985).

2



preserve the status quo until the litigation based on the 1982

Eligible List is resolved.
Plaintiffs respectfully submit that the preliminary injunc­

tion was a proper exercise of the District Court's jurisdiction 

and was the minimum necessary to prevent the State from, depriving 

both the Plaintiffs and the Wells Intervenors of their right to 

have appointments made from the 1982 Eligible List.
QUESTIONS PRESENTED

Did the District Court abuse its discretion in enjoining the 
use of a new eligible list to make permanent appointments to fill 

Civil Service positions where there is litigation pending concern­
ing an earlier eligible list which both the plaintiffs and the 

intervenors contend must be used to fill the contested positions.
STATEMENT OF THE CASE

This action was commenced by the plaintiffs on November 2, 
1982 challenging the racial preferences used by the State in con­
structing a Civil Service Eligible List for Correction Captain; 
Eligible List No. 37-526. ("1982 Eligible List"). The plaintiffs
are White candidates who allege that the State engaged in reverse 
discrimination in constructing the 1982 Eligible List. The 
action was brought pursuant to the Fourteenth Amendment to the 

United States Constitution, 42 USC §§1981 and 1983 and Titles VI 
and VII of the Civil Rights Act. (52) 2 The plaintiffs seek to

2Unless otherwise indicated all numeric references in parenthesis 
will refer to pages in the joint appendix. The Leath intervenors 
have numerous references in their brief to an addendum to 
brief", which contains documents which are not part of the record 
in this case. Since these documents are not part of the record 
in this matter, they will not be addressed. See, IBM v. 
Edelstein, 526 F2d 37, 45 (2nd Cir., 1975).

3



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have the 1982 Eligible List corrected to remove all racial 

preferences from the 1982 Eligible List and to make permanent 

appointments therefrom. (75-76)
The State answered, generally admitting that the 1982 

Eligible List was unilaterally adjusted on the basis of race, but 
alleged that the racial adjustments were permissible in light of 

what the State perceived to be adverse racial impact. (130-145) 

Until December 31, 1984, the State had consistently taken the 

position that permanent appointments should be made based on the 

1982 Eligible List as adjusted by the State.
The Wells Intervenors are a group of Black candidates who 

sat for the 1982 Correction Captain examination. They intervened 

and joined with the State to defend the unilateral racial adjust­
ments and have at all times sought to have permanent appointments 

made from the 1982 Eligible List with the racial adjustments.

Immediately after the complaint was served, the State 
consented to an order enjoining the State from making permanent 

appointments from the 1982 Eligible List pending this action. 

(128-129)
After preliminary discovery was completed, all parties moved 

for summary judgment. With a decision and order dated October 3, 
1983, the District Court granted the plaintiffs' motion for 
summary judgment on their Title VII claim only. The State and 
the Wells Intervenors appealed to this Court which reversed the 

grant of summary judgment on April 16, 1984, and remanded the 
matter for trial consistent with the terms of the decision. See 

Bushey v. New York State Civil Service Commission, ("Bushey") ,

4



571 FSupp. 1562 (NDNY, 1983); rev'd, 733 F2d 220 (2nd Cir. 1984);

cert. den. ___ US ___; 105 S.Ct. ___  803 (1985), reh. den. ___ US

___; 105 S.Ct. 1384 (1985).

On remand both the State and the Wells Intervenors filed 

additional summary judgment motions which are currently pending 
in the District Court. (546-592) The plaintiffs opposed the 

motions and asked that the matter be set for trial. (713-884)
While on remand, a new civil service examination for Correc­

tion Captain was prepared and an eligible list was published on 
December 31, 1984. ("1984 Eligible List"). The State announced

that it was their intention to fill all correction captain 

positions from the 1984 Eligible List effectively abandoning the 
1982 Eligible List. (513) By order to show cause, the Wells 
Intervenors immediately sought to vacate the earlier consent 
order enjoining appointments from the 1982 Eligible List and 
sought to compel the State to make permanent appointments from 
the 1982 Eligible List, (509-515). In response, the plaintiffs 
requested an injunction prohibiting the State from making perma­

nent appointments from the 1984 Eligible List pending the 

resolution of the Bushey litigation. (529-531)
The District Court temporarily enjoined the use of the 1984 

Eligible List pending a hearing on a preliminary injunction. 
(620-623) Intervenor-Appellant Glenda Leath, ("Intervenor 
Leath") a candidate whose name appears on the 1984 Eligible List, 
but not on the 1982 Eligible List was granted intervention solely 
for the purpose of opposing the preliminary injunction. (896)

Although the plaintiffs and Wells Intervenors take opposing

5



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views on the merits of this case, they joined in the application 

before the District Court seeking to preliminarily enjoin the 

State from making permanent appointments from the 1984 Eligible 

List to fill positions which both contend should be filled from 
the 1982 Eligible List. This dispute between the plaintiffs and 

Wells Intervenors is not whether the 1982 Eligible List should be 
used, but rather whether the list should be used with or without 

adjustments.

The District Court made its findings! of fact and conclusions 

of law and enjoined the use of the 1984 Eligible List pending 
judgment and/or until further order of the Court. (920-923, 
888-895) The District Court granted Intervenor Death's motion to 

reconsider its order granting the injunction and upon reconsi­
deration adhered to its earlier determination. (924-925)

Both the State and Intervenor Leath appeal solely from the 

grant of a preliminary injunction. Both motions for summary 
judgment are currently sub judice.

STATEMENT OF FACTS
A . The Uniqueness Of Correction Captain Positions

The position of Correction Captain is the highest ranking 
uniformed Civil Service position in the New York State Department 
of Correctional Services. Presently there are approximately 60 

Correction Captain positions statewide. (Transcript of proceed­
ings for March 1, 1985, p.7). Permanent appointments have not
been made to fill Correction Captain positions since 1978. (163,
744). As a result, 51 of the 60 Correction Captain positions 

were filled with provisional appointments as of January 22, 1985. 
(660, 719)

6



When an offer of permanent appointment to a Correction 

Captain position is made to an individual on the eligible list 
the offer is extended for the purpose of filling a vacancy in a 

specific and identified position at a specific and identifed 

correctional facility. There are approximately 55 Correctional 

Facilities scattered throughout New York State. (335, 660, 686, 

107, 111, 114, 118)
Civil Service Law limits the State in filling a position to 

one of the top three candidates on an eligible list. See Civil 

Service Law §61 (1). However, historically, the State has 
offered Correction Captain positions in rank order from an 

eligible list. (72, 245, 717, 212)
The limited number of positions and the widely scattered 

location of correctional facilities has the effect of rendering 
each correction captain position truly unique. Since 
appointments are offered based on a candidate's position on an 

eligible list, the higher a candidate is ranked on an eligible 
list the more likely it is that he/she will be given an appoint­
ment near his/her home and family. (107, 111, 114, 118).

B . The 1982 Examination
The Correction Captain Examination which forms the basis for 

this suit was held on January 30, 1982. The eligible list based 
on the results of this test was published on September 9, 1982. 
The 1982 Eligible List was prepared using two separate scoring 
methods; one for Black and Hispanic candidates and another, 
measurably less favorable method, for White candidates.

The State announced that permanent appointments to Correc­

7



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tion Captain would be made from the 1982 Eligible List commencing

November 11, 1982. (99) The instant action was commenced and was

immediately followed by an application to preliminarily enjoin

the State from making permanent appointments to Correction

Captain based on the 1982 Eligible List. (85) The application

for injunction was withdrawn when the State consented to a court
approved stipulation dated November 4, 1982, which provides:

"The State has not made and will not make 
any permanent appointments to the position 
of Correction Captain from Eligible List 
37-526 dated September 9, 1982, until 
further order of this Court." (129)

Based on this Court approved stipulation, the State withdrew the

1982 Eligible List on November 5, 1983 , 56 days after it was
originally published. (See Affidavit of Ralph Vecchio sworn to

November 16 , 1983 , <$2 , submitted in opposition to plaintiffs

application for contempt). That injunction is still in effect
with the result that the 1982 Eligible List has not yet been used

to make appointments for the statutory minimum of one year. (See

New York State Civil Service Law §56). That minimum time period

does not start to run until the Court approves the eligible list.
Kirkland v. New York State Department of Correctional Services,

711 F2d 1117, 1132 (2nd Cir., 1983).
The State continues to fight to obtain court approval of the

methodology used to create the 1982 Eligible List. Indeed, even

after the State assumed the public position that it would use the
1984 Eligible List to fill all appointments it filed for summary

judgment on the merits in this case. (556)
The underlying case challenging the 1982 Eligible List is

8



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new approaching an ultimate resolution finally adjudicating the 

rights of all parties.
While the instant Appeal does not involve the question of

whether the 1982 examination is a job related examination, the

defendants have previously admitted that the examination is a
"professionally developed, job related ability 
test... [that was] lawfully prepared... to 
test the merit and fitness of candidates for 
the position." (65, Complaint 535, 134 
Answer 512).

C . The 1984 Examination
A new Correction Captain eligible list was published on 

December 31, 1984, based on Civil Service Examination 39-093.
("1984 Eligible List"). This examination consisted of an oral 

and a written component. The written examination was adminis­

tered on December 10, 1983, with the oral examination adminis­

tered during the Spring of 1984.
The State announced that it was their intention to fill a]1 

Correction Captain positions from the 1984 Eligible List once it 
was published even though the 1982 Eligible List was still being 

contested.
The 1984 Eligible List is broken down into large zones. All 

candidates within the zone are treated as having the same score, 
i.e. there are 92 candidates in the fourth zone each ranked 46. 

(723-731)
The 1984 Eligible List has not yet been challenged in Court. 

Despite the unsupported allegations of Intervenor Leath, there 

is no basis on this record to determine that the 1984 Eligible 

List is based on an examination which is more or less job related 

or valid than the 1982 Examination.
- 9 -



RGD/vae 5/2/85 VAE10

D . Kirkland Consent Decree

The State contends that the decision to make all appoint­

ments from the 1984 Eligible List is mandated by a consent decree 

entered to settle a case challenging the most recent Correction 

Lieutenant examination. Kirkland v. New York State Department of 
Correctional Services, ("Kirkland Lieutenants"), 552 FSupp 667

(SDNY 1982), aff'd, 711 F2d 1117 (2d Cir., 1983) cert den. 104
S.Ct. 997 (1984) .

The Plaintiffs in Kirkland Lieutenants alleged that the 

Correctional Lieutenant Examination discriminated on the basis of 

race. One of the plaintiffs' allegations in Kirkland Lieutenants 

suggested that the discriminatory impact of the Correction 
Lieutenant test "tainted" the candidate pool eligible to sit for 

the 1982 Correction Captain examination. On this basis the 
Kirkland plaintiffs attempted on two separate occasions to enjoin 

the State from holding the 1982 Correction Captain examination. 
Both of these applications were denied by the District Court and 
the 1982 Examination was held as scheduled. (540)

The parties in Kirkland Lieutenants entered into a stipula­
tion of settlement resolving the Kirkland case. ("Kirkland 

consent decree") . The plaintiffs were not parties to that 
decree. The Kirkland consent decree was signed and submitted to 
the District Court for approval before the 1982 Eligible List was 
published. (695-712)

By its terms, the consent decree sets up a timetable for the
State to prepare a new Correction Captain Examination:

"Defendants shall use their best efforts to 
commence administration of the new selection

10



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procedure for promotion to the rank of 
Correction Captain by September 30, 1983 but 
in no event shall administration of such 
selection procedure commence later than 
December 31, 1983. The Eligibility List 
based on the new selection procedure shall 
be published within six (6) months of 
administration of the procedure." (708)

The Kirkland consent decree contains absolutely no language 

which either expressly or by implication suggests that the 1982 
Eligible List would not be used to fill Correction Captain 

positions. In fact, the parties to the Kirkland consent decree 
contemplated that permanent appointments would be made from the 
1982 Eligible List since the decree expressly recognized that the 
1982 Eligible List would be published after the consent decree 

was entered into. (699) In fact the State's own conduct in 
publishing the 1982 Eligible List one day after the stipulation 

was entered into belies that the Kirkland consent decree did not 
bar the use of the 1982 Eligible List. The State's own state­
ments indicate that the Kirkland consent decree did not have any 

impact on the 1982 Eligible List. (124-125 52, 126-127 52).
E. The Preliminary Injunction Proceedings

On September 20, 1984, during a pretrial conference before

the District Court in Bushev, the plaintiffs orally requested an 
injunction prohibiting the State from filling Correction Captain 
positions from the, as yet unreleased, 1984 Eligible List. The 
District Court instructed the parties that it would not entertain 
any injunction application until the matter was first brought 
before the District Court that approved the Kirkland consent 

decree. (538-39)
Thereafter, the plaintiffs sought to intervene in the

11



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Kirkland action for the purpose of enjoining the State.from using 
the 1984 Eligible List to permanently fill captain positions. 

(529-530, 532-545). District Judge Thomas P. Griesa denied the 
request noting that the Kirkland consent decree neither addressed 

nor considered the issue of what effect the publication of the 
1984 Eligible List would have on the 1982 Eligible List. Judge 

Griesa also noted that he would speak to Judge Miner by telephone 

to inform Judge Miner of his determination. (544-545, 716-717)

Immediately after the 1984 Eligible (List was published, but 
before any appointments were made from that List, the Wells 

Intervenors applied to the District Court seeking for the third 

time to vacate the November 4, 1982, order enjoining permanent 

appointments from the 1982 Eligible List. (509-522) In response, 
the plaintiffs applied for a temporary injunction prohibiting the 
State from making permanent appointments from the 1984 Eligible 

List pending a hearing for a preliminary injunction. (529-531). 
The Court granted the plaintiffs' application for a temporary 
injunction and set a hearing date for a preliminary injunction. 
(620-623)

In support of their application for a preliminary injunction 
the plaintiffs requested that the State be enjoined from making 

permanent appointments from the 1984 Eligible List to fill 
positions which would have been filled from the 1982 Eligible 
List if the November 4, 1982, injunction had not been entered and 

the State had complied with the schedule set forth in the 
Kirkland consent decree. (529-531) If the State had fully 

complied with the letter of the Kirkland consent decree, the 1984

12



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Eligible List would have been ready for publication on June 10, 

1984, 6 months after the written portion of the examination was 

held on December 10, 1983. (715) As of June 10, 1984, there were 
45 correction captain positions filled with provisional appoint­

ments. (718-719) On this basis, the plaintiffs requested that 

the State be enjoined from filling these 45 positions pending the 

Bushey case.
The preliminary injunction ultimately granted was less 

intrusive than any party requested, j Rather than make a 

determination about which list should be used to make particular 
appointments, the District Court merely maintained the status quo 

pending the trial on the merits. (920-923) Contrary to what the 
State and Intervenor Death infer, the District Court did not make 
any determination on the ultimate question of which list should 

be used to make appointments.
POINT I

THE DISTRICT COURT DID NOT ABUSE ITS 
DISCRETION IN GRANTING THE PRELIMI- 
NARY INJUNCTION._____________________

A . The Standard Of Review
It is, of course, settled in this Circuit that the standard 

for the issuance of a preliminary injunction is a showing of a) 
irreparable harm and b) either a likelihood of success on the 
merits or sufficiently serious questions going to the merits to 
make them fair ground for litigation and a balance of hardships 
tipping decidedly toward the party requesting the preliminary 

relief. Jackson Dairy, Inc, v, H.P. Hood & Sons, Inc., 596 F2d 

70 , 72 (2nd Cir., 1979) .

13



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It is equally fundamental that the standard for review on an

appeal from the grant of a preliminary injunction is far more

narrow. As the Supreme Court noted:
"[w]hile the standard to be applied by the 
district court in deciding whether a plaintiff 
is entitled to a preliminary injunction is 
stringent, the standard of appellate review is 
simply whether the issuance of the injunc­
tion... constituted an abuse of discretion."
Doran v. Salem Inn, Inc., 422 US 922, 932 (1975)

The question on appeal is not whether the reviewing court itself
would have made a different finding than the District Court, but

whether the trial court could permissibly find as it did.
Granfield v. Catholic University of America, 530 F2d 1035, 1040

(DC Cir., 1976); United States v. Second National Bank of North

Miami, 502 F2d 535, 547 (5th Cir., 1974).
Thus, an appellant seeking to overturn a grant or denial of 

a preliminary injunction must overcome the heavy burden of 
establishing that the trial court's determination clearly 
erroneous in light of the Appelleate Court's admonition that it 
must accept the District Court's findings of fact unless they 
have no basis in the record. Mitchell v. Cuomo, 748 F2d 804, 808 
(2nd Cir. 1984); Guiness & Sons, PLC v. Sterling Publishing 

Company, Inc., 732 F2d 1095, 1099 (2nd Cir. 1984).
As will be demonstrated herein, there is ample basis in the 

record to support the District Court's grant of a preliminary 

injunction.
In light of the attempts by the State and Intervenor Leath 

to suggest that the 1982 Examination is not a valid, job related 

examination, it is important to remember that the present appeal

14



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is from the grant of a preliminary injunction only. The merits 

of the Bushey case are not at issue, and cannot, be reviewed. 

University of Texas v. Camenisch, 451 US 390 (1981)

B . Irreparable Harm
Both the plaintiffs and the Wells Intervenors placed 

extensive proof of irreparable harm before the District Court and 
were prepared to present live testimony if the District Court had 
requested the same. (Transcript of Proceedings January 25, 1985, 

pp. 26, 35).
As outlined in the statement of facts, the District Court 

was aware that the number of correction captain positions is 

extremely limited. The fact that positions are scattered 

throughout New York State makes a candidate's position on a 
eligible list even more crucial if that candidate is to have a 
reasonable expectation of receiving an appointment close to his 

home and family. (107, 111, 114, 118)
The plaintiffs demonstrated overwhelmingly that their 

opportunity for a Correction Captain appointment would be effec­
tively eliminated if the 1984 Eligible List were used rather than 
the 1982 Eligible List. The following chart summarizes the 

position on the three separate lists in question for each of the 
plaintiffs. These eligible lists are: the 1984 Eligible List; 
the 1982 Eligible List as it currently stands; and the 1982 
Eligible List as it would appear without any racial adjustments. 

Because the 1984 Eligible List has been zone scored, it is 
impossible to tell what order appointments will be made. As a 
result, only a range of positions has been set forth. (723-742)

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1982 Eligible 1982 Eligible
List Rank List RanK

1984 Eligible With Racial Without Raci
List Rank Adjustments Adjustments

142-267 74 63
37-128 61 51

Not On List 74 63
142-267 51 37

4-31 89 77
142-267 22 12
37-128 31 28
31-36 9 7
37-128 31 28
37-128 133 123
37-128 82 , 77

Not On List 40 j 28
4-31 3 6

37-128 Fail Fail
37-128 Fail Fail

Name
James Bushey 
Roger D. Bell 
Robert W. Ferber 
William J. Norton 
Robert J. Seitz 
George Bartlett 
Charles Page 
Wayne Wilhelm 
Wayne L. Strack 
Robert Fucci 
Gary H. Filion 
Edward D. Rogan 
Miles Barnes 
Donald E. Clark 
Gerald Sweeney

As this summary of the factual record demonstrates, the 

plaintiffs will be irreparably harmed if the 1984 Eligible List 
is permitted to be used to fill positions which the 1982 List was 

created to fill. Plaintiffs Ferber and Rogan are not even on the 
1984 Eligible List. Both these candidates will almost certainly 
receive appointments if the 1982 Eligible List is used. Thus, if 
all positions are filled from the 1984 Eligible List they will be 

forever barred from an appointment.
Plaintiffs Bushey, Norton and Bartlett are all ranked so low 

on the 1984 Eligible List that they will never be appointed even 

though based on the State's representations as to the method of 
appointment, each will be appointed if the plaintiffs prevail 
herein. Plaintiffs Bell, Page, Strack and Filion are all ranked 

together with 92 other candidates on the 1984 Eligible List. In 
light of the State's refusal to disclose how they intend to 

select candidates from this group it is impossible to tell

whether they will ever receive an appointment if the 1984



RGD/vae 5/2/85 VAE10

Eligible List is used; yet based on the State's representative as 

to the method of appointment, each will receive an appointment if 

the 1982 list is used.
Plaintiffs Barnes and Wilhelm will have their eligible list 

position dramatically lowered if the 1984 Eligible List is used 

thereby decreasing the likelihood that they will be offered an 

appointment close to their home and family. A retroactive grant 

of back pay and back seniority cannot compensate each of these 
plaintiffs for the disruption caused byj moving their home and 

family to accept a less favorable position at a distant facility.

Plaintiffs generally agree that the Wells Intervenors will 
be similarly irreparably harmed if the State is permitted to 
simply disregard the 1982 Eligible List. Although plaintiffs 
believe they will prevail on the merits of this case, the 
preliminary injunction is crucial to preserve the court's ability 

to compensate the Wells Intervenors if they prevail.
It is against this factual background that the District 

Court made its determination that the injunction was necessary 

"to prevent the plaintiffs from losing their right to judicial 

review of their original claims." (892)
Both the State and Intervenor Leath base their attack on the 

District Court's order on the argument that the State has the 

power to simply replace the 1982 Eligible List with the 1984 
Eligible List. They suggest that the mere act of publishing the 
1984 Eligible List effectively renders the Bushev case moot, 
thereby depriving the District Court of its underlying 

jurisdiction and the ability to invoke the "All Writs Act 28 USC

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1651, to enjoining the use of the 1984 Eligible List. (See 

State's brief p. 40-43 and Intervenor Leath's brief pp. 32-34). 
Citing Florida Med. Assoc, v. U.S. Dept, of Health, 601 F2d 199 

(5th Cir., 1979); ITT Community Development Corp. v. Barton, 569 
F2d 1351 (5th Cir., 1978). This ignores that New York State Lav; 

expressly prohibits the State from simply replacing the 1982 

Eligible List.

New York State Civil Service Law §56 provides in applicable

part that: j
"[T]he duration of an eligible list shall 
be fixed at not less than one nor more than 
four years... An eligible list that has 
been in existence for one year or more shall 
terminate upon the establishment of an 
appropriate new list..."

In interpreting this provision this Court has held that "the 

statutory period does not begin to run until a challenged list is 
approved by the Court." See Kirkland Lieutenants supra, 711 F2d 

at 1136 citing Mena v. D'Ambrose, 44 MY 2d 428 (1978). Here the
1982 list was in existence for only two months and the District 
Court has not yet approved it. (713-714 314 and Vecchio

Affidavit sworn to November 16 , 1983 f2) Thus the State and 
Intervenor Leath are simply wrong in suggesting that State Law 
requires or even permits the State to replace the 1982 Eligible 

List.

Since superseding the 1982 Eligible List violates State Law, 
the State and Intervenor Leath cannot argue that the All Writs 
Act cannot be applied to prevent a party from properly rendering 

a controversy moot.
The District Court's order merely preserves its ability to

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review the 1982 Eligible List by prohibiting the State from 

improperly acting to moot this case. (892)
This case is not unlike FTC v. Dean Foods Company, 384 US 

597 (1966) , in which the United State Supreme Court upheld the
grant of a preliminary injunction preventing the defendant from 

taking action that would make it virtually impossible to 
implement an effective remedy if the plaintiff were successful, 

"thus rendering the enforcement of any final decree... futile. 

FTC v. Dean Foods Company, supra, 384 US at 606.
Other Courts have specifically recognized that preliminary 

injunctive relief, such as was granted by the District Court m  
this action, is appropriate when needed to prevent one party from 

acting to effectively render moot the other party's claim. In 
such a situation, a preliminary injunction "is necessary to 

insure that there will be something left to decide." City _of 
Hartford v. Hills, 408 F.Supp. 879, 884 (D.C. Conn., 1975); 
Butler v. Crumlish, 229 F.Supp. 565, 568 (D.C. E.D. Penn, 1964).

The State Defendants will undoubtedly argue that under New 

York State Law neither the plaintiffs nor the Wells Intervenors 
have a right to promotion to the position of Correction Captain 
regardless of their position on the list. While the plaintiffs 
strenuously disagree with that interpretation of New York Law, 

see e.g. Schuyler v. Department of Personnel, 39 NY 2d 851 (1976)
aff'd 47 AD 2d 948 (2d Dept. 1975) ("[E]ach competitive Civil
servant does have the right to be promoted in accordance with his 
placement in the promotional list resulting from such an 

examination."), it is here not important for two reasons; first

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the State has admitted they would have promoted in rank order off

the eligible list whatever it looked like; (717) second,

" [A] person whose name appears on an eligible 
list gain[s] an enforceable right to be 
considered for an available position. So as 
long as the list is enforced, promotions can 
be made only from the list and then only 
[pursuant to NY Civ. Ser. L. §61(1)]... Not 
only is appearance on an eligible list 
important, but... ones place on a list could 
effect quite significantly ones chances to be 
considered for promotion." Cassidy v. New 
York City Department of Corrections, 95 AD 
2d 733, 734-35 (1st Dept. 1983);

The plaintiffs have the right to prove that the basis for the 
State's failure to appoint in rank order, here race, was 

impermissible. See e.g. Yates v. Grecco, 85 AD 2d 817 (3rd Dept. 

1981); Frank v. Tishelman, 72 Ad 2d 604 (2nd Dept. 1979); 

Donofrio v. Hastings, 60 AD 2d 989 (4th Dept. 1978) .
Finally, the constitutional claims raised by the plaintiffs 

in and of themselves constitute a sufficient showing of 

irreparable harm.
"When an alleged deprivation of a constitutional right is 

involved, most Courts hold that no further showing of irreparable 
injury is necessary." Mitchell v. Cuomo, 748 F2d 804 , 806 (2d

Cir., 1984), citing with approval 11 Wright and Miller Federal 

Practice and Procedures, §2948 at 440.
In this case, the Bushey Plaintiffs have alleged that the 

State violated their constitutional rights by unilaterally 

adjusting an eligible list based solely on race. (74) But for 
that unilateral adjustment, this action would never have been 
commenced and the permanent Correction Captain positions now in 

question would long since have been filled.

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The State will undoubtedly argue that the District Court's 

previous denial of summary judgment on the plaintiffs' claims 

under the Fourteenth Amendment constitutes a dismissal of the 

claim. Such a conclusion is erroneous.
With respect to this issue, the District Court stated:

"Plaintiffs' complaint also asserts, pursuant 
to 42 USC §1983, a violation of their Four- 
teenth Amendment rights under the United 
States Constitution, as well as violations 
of 42 USC §1981 and Title VI of the Civil 
Rights Act of 1964, 42 USC §200Qd. Both the 
Fourteenth Amendment and the 11981 claims 
are not maintainable as plaintiffs have 
failed to prove the necessary element of 
discriminatory intent." [Citations omitted].
(emphasis added) Bushev, et al. v. New York 
State Civil Service Commission, et al.,
("Eushey"), 571 FSupp. at 1566-67 n.9.

In no sense was plaintiffs' equal protection claim dismissed. In 
fact, "defendants' and defendants-intervenors' motions for 
summary judgment [were] denied" in total. Bushey, supra, 571
F.Supp at 1580 . The only effect of the District Court's prior 

decision was to refuse to grant summary judgment to the plain­
tiffs on the equal protection issue because plaintiffs "failed to 
prove, the necessary element of discriminatory intent" on their 
application for summary judgment. The State Defendants were not 

granted summary judgment on this question and it remains an issue 

for trial.
This is consistent with fundamental principles that:

" [a] denial of summary judgment indicates that 
the moving party has failed to establish that 
there is no genuine issue as to any material 
fact and that he is entitled to a judgment as 
a matter of law; a trial, therefore, is 
necessary. Wright, Miller & Kane, Federal 
Practice and Procedure: Civil 2d Z2715 p. 636.
See also: Friedman v. Meyers, 482 F2d 435,
438 n.4 (2nd Cir. 1973).

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The State will also suggest that this Court's previous 

determination supports their view that the plaintiffs may not 

raise their constitutional claims. It does not. This Court 

merely stated that "these claims are not before us." Bushey, 
supra, 733 F2d at 223 n.4. This Court reversed and remanded the 

case. It did not reverse and direct the District Court to enter 

judgment in favor of the State.
In fact, the Bushey Plaintiffs could not have appealed the 

denial of summary judgment to this Court since a denial of a 

motion for summary judgment is not a final judgment and hence not 
appealable. Switzerland Cheese Assoc, v. E. Horne's Market, 

Inc. , 385 US 23 (1966) . Pacific Union Conference of Seventh-Day 

Adventists v. Marshall, 434 US 1305 (1977).
This rule of non-appealability has no less effect because 

the plaintiffs were initially granted summary judgment on their 

Title VII claim. Drittel v. Friedman, 154 F 2d 653 (2d Cir., 
(1946); Dutton v. Cities Service Defense Corp., 197 F 2d 458 (8th 

Cir., 1952); United Rubber, Cork, Linoleum & Plastic Workers v. 
Kirkhill Rubber Co., 367 F 2d 956 (9th Cir., 1966). See also 
Federal Rules of Civil Procedure §54(b) Federal Rules of 

Appellate Procedure 28 USC §§1291 and 1292.
Neither the decision of this Court nor the determination of 

the District Court did anything to dismiss the plaintiffs' Four­

teenth Amendment claims and the same are still alive and of 
themselves constitute a sufficient basis for a funding of 

irreparable harm.
In light of the heavy burden that the State Defendants must

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overcome in order to justify their racial preference, it is
apparent that the plaintiffs' constitutional claims have

significant merit. See e.g.
"[a] racial classification, regardless of 
purported motivation, is presumptively 
invalid and can be upheld only upon 
extraordinary justification.11 Personnel 
Administrator of Massachusetts v. Feeney,
442 US 256, 272 (1979). See also Loving 
v. Virginia, 388 US 1 (1967) .

The State simply has not shown that their preferential 

classification is based on judicial, legislative or administra­
tive findings of constitutional or statutory violations. Regents 
of the University of California v. Bakke, ("Bakke"), 438 US 265, 
307 (1978); Fullilove v. Klutznick, ("Fullilove") , 448 US 448 , 

498 (1980) Powell J., concurring.
Under the Federal Constitution, race is an impermissible 

basis for granting a preference to a person on an eligible list 
absent some compelling reason. See e.g. Regents of the Univers­

ity of California v. Bakke, 438 US 265 , 307 (1978). A racially 
based deviation from the eligible list is permissible only if a 
compelling governmental interest is served. The plaintiffs have 
the right to protect that Federal interest pendente lite in order 
to afford them full, fair and effective relief once the action is 

finally determined.
By now seeking to disregard the results of the 1982 

examination the State seeks to prevent the plaintiffs from being 
appointed to the position of Correction Captain solely on the 
basis of their race. That, in sum, would be the effect of the 
substitution of the 1984 Eligible List prior to the utilisation

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of the 1982 Eligible List.

C . Likelihood of Success On the Merits
The District Court also found that on the unique posture of 

this case, since both the Bushey Plaintiffs and the Wells Inter­

veners joined in the request for an injunction, at least one of 

them must have a likelihood of success. (892) We submit that the 

District Court's compelling logic is unassailable.

D . Balancing Of The Hardships
Even if this Court chooses to disregard the District Court's 

finding of the likelihood of success on the merits, the second 

prong of the test needed to sustain a preliminary injunction has 
been fulfilled. Of course, that prong requires "sufficiently 

serious questions going to the merits to make them a fair ground 
for litigation and a balance of hardships tipping decidely
toward the party requesting the preliminary relief." Jack Kahn 

Music Co. v. Bladwin Piano & Organ Co., 604 F2d 755 , 758 (2nd

Cir., 1979) .
We submit that the District Court's reference to the

dissenting opinion of Justice Rehnquist joined by two other 
Justices from the denial of certiorari in this case is ample 
evidence that there are "serious questions going to the merits to

make them fair ground for litigation." (892) See Bushey ____ US
___; 105 S.Ct. 803 (1985). (Rehnquist J., dissenting). Indeed
this Court has itself already held that there are "serious 

questions going to the merits" when it remanded this case for 

trial on the merits. Bushey, supra, 733 F2d at 229.
The balance of hardships clearly tips in favor of the

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plaintiffs and Wells Intervenors. As outlined above, both the 

plaintiffs and Wells Intervenors stand to lose their chance of 
being considered for a permanent appointment to Correction 

Captain. At the very least, the plaintiffs will have their 

eligible list positions dramatically altered thereby decreasing 
the choice of appointments and increasing the likelihood that 

they will be forced to uproot their families and move great 

distances in order to accept an appointment.
On the other hand, the State is faced only with a continu­

ation of provisional appointments. Since all captain positions 

have been filled with provisional appointments since 1978, the 
State is hard pressed to now argue that a continuation of that 

situation is somehow a hardship.
Intervenor Leath is similarly in no position to protest. 

Unlike the plaintiffs and Wells Intervenors who have sought 
permanent appointments since 1982, Intervenor heath’s name did 

not appear on any Correction Captain Eligible List until December 
31, 1984. Indeed, Leath's position on the 1984 Eligible List 
makes it unlikely that she will ever be offered an appointment. 

Leath is tied with 92 other candidates with a rank of 46 on the 

1984 Eligible List. (723-731)
Finally, since the Bushey case is now ready for a final 

disposition, any delay in permanent appointments will be of short 

duration.
For all these reasons, it is apparent that the balance of 

hardships tips decidely in favor of plaintiffs.

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POINT II
THE PRELIMINARY INJUNCTION DOES NOT 
CONTRAVENE THE KIRKLAND CONSENT DECREE.

Both the State and Intervenor Leath suggest that the 

preliminary injunction contravenes the Kirkland consent decree 

and as such constitutes an impermissible collateral attack on the 

decree. This position is simply incorrect on both the law and 

the facts.
We start with the basic principle that:

"The scope of a consent decree must be 
discerned within its four corners, and not by 
reference to what might satisfy the purposes 
of one of the parties to it or by what might 
have been written had the plaintiff estab­
lished his factual claims and legal theories 
in litigation. Firefighters v. Stotts,
("Stotts") ___ US ___, 104 S.Ct. 2576, 2586
(1984) ; citing United States v. Armour & Co.,
402 US 673 , 681-82 (1971) .

Applying this standard to the instant case, it is apparent 

that the "four corners" of the Kirkland consent decree contains 
absolutely no language from which one could even infer that 

appointments should not be made from the 1982 Eligxble List or 
that the 1984 Eligible List would supersede the 1982 Eligible 

List. On the contrary, the consent decree recognizes that the 
1982 Eligible List would be issued after the decree was signed. 

(699) Clearly its use was contemplated.
This conclusion is borne out by the State's own acts in 

actually publishing the 1982 Eligible List and taking steps to 
make appointments therefrom. (335) Indeed, the State announced 

that the Kirkland consent decree did not have an impact on the 

1982 Eligible List. (124-127, 716).

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If all the above were not enough to establish what was and 

was not contmeplated by the Kirkland consent decree, the point 

should be put to rest on the basis that the District Judge who 

presided over the Kirkland Lieutenants case stated that, the 

consent decree did not address the effect which the 
1984 Eligible List would have on the 1982 Eligible List. (545 , 

716)
The simple fact is that the only thing the Kirkland consent 

decree does is require the State to construct a new selection 

procedure, which they did.
The arguments of Intervenor Leath that the District Court 

erroneously failed to consider the claims raised by the Kirklano 
Lieutenants, is entitled to no weight. Here Intervenor Leath is 
suggesting that the District Court should have taken into account 

that the Kirkland Lieutenants sought to enjoin the use of the 
1982 Eligible List. This argument was expressly rejected in 
Stotts supra, 104 S.Ct. at 2586. Moreover, the Kirkland 
Lieutenants were totally unsuccessful in their efforts to enjoin 
the 1982 Eligible List. (540-541) The consent decree itself 
contains absolutely no language which in any way suggests that 

the 1982 Eligible List should not be used.
The preliminary injunction in this case does nothing more 

than to delay the use of the 1984 Eligible List until the claims 
arising out of the 1982 Eligible List have been resolved. That 
does not constitute a collateral attack on the Kirkland consent 

decree.

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POINT III

THE PLAINTIFFS ARE ENTITLED TO 
ADDITIONAL RELIEF IN THE UNDERLYING 
ACTION.______________________________

Intervenor Leath contends that even if the plaintiffs 

prevail on the merits their sole remedy would be an injunction 

against the use of the 1982 Eligible List. On this basis, they 

argue that the Bushey case is moot.
This argument ignores that the 1982 Eligible List has not 

yet been used to make appointments for the statutory minimum of 

one year after Court approval. Thus, even if the District Court 
refused to force the State to make appointments from the 

unadjusted 1982 Eligible List on subject matter jurisdiction 

grounds, the plaintiffs would still be entitled to go to State 

Court at the conclusion of this action to enforce their rights 

under State Law requiring the State to make appointments
3consistent with Civil Service Law §56.

The argument also ignores that as outlined in Point I (B) , 

the plaintiffs' claims of intentional discrimination are still 
ripe for consideration. Thus, the District Court has the power 

and authority to award the plaintiffs back pay and back 
seniority. Franks v. Bowman Transportation Co., 424 US 747 

(1976) .
CONCLUSION

THE DISTRICT COURT DID NOT ABUSE ITS 
DISCRETION IN GRANTING THE PRELIMI­
NARY INJUNCTION AND SHOULD BE 
AFFIRMED.

^Pursuant to NY CPLR §205, the Statute of Limitations period for 
such an action is tolled until the Federal Court proceedings are 
concluded.

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DATED: May 8, 1985

Of Counsel:
Ronald G. Dunn 
John H. Beaumont

Respectfully submitted,
ROWLEY, FORREST AND O'DONNELL P.C. 
Attorneys for Plaintiffs-Appellees

Office and Post Office Address 
90 State Street 
Albany, NY 12207 
(518) 434-6187

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