Bushey v The New York State Civil Service Commission Reply Brief of Defendant-Intervenor-Appellant

    IN THE
UNITED STATES COORT OF APPEALS

POR THE SECOND CIRCUIT
Nos. 85-7259 

85-7343 85-73A 3
JANES BUSHEY, ROGER D. BELL, ROBERT W. FERBER, 
WILLIAM J. NORTON, ROBERT J. SEITZ, GEORGE 
BARTLETT, CHARGES PAGE, WAYNE WILLIAM, WAYNE 
L. STRACK, ROBERT FUCCI, GARY H. PILION, 
EDWARD D. ROGAN, MILES BARNES, DONALD E. CLARK 
and GERALD SWEENEY, and individually 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; JOSEPHINE 
GAMBINO and JAMES McFARLAND, in their 
capacity as Civil Service Commissioners; 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,
GERALD A. WELLS, WILBUR I. WRIGHT, JOSEPH P. 
BATES, THOMAS D. HASKELL and PERCY JONES,

Defendant-Intervenors-Appellees,
GLENDA F. LEATH,

Defendant-Intervener-Appellant.

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

REPLY BRIEF OF DEPENDANT-INTERVENOR-APPELLANT 
GLENDA F. LEATH

JULIUS LeVONNE CHAMBERS
PENDA D. HAIR
16th Floor
99 Hudson Street
New York, New York 10013
(212) 219-1900



TABLE OF CONTENTS

I.

II.

III.

Page
NEITHER PLAINTIFFS NOR THE WELLS INTERVENORS HAVE 
POINTED TO ANY LEGAL BASIS OR AUTHORITY FOR 
CONCLUDING THAT THEY WILL SUCCEED IN OBTAINING
PERMANENT INJUNCTIVE RELIEF 2
THE NORTHERN DISTRICT'S FINDING OF IRREPARABLE
HARM IS CLEARLY ERRONEOUS 6
THE KIRKLAND CONSENT ORDER REQUIRES USE OF THE
KIRKLAND LIST TO FILL ALL VACANCIES EXISTING ON
THE DATE THE KIRKLAND LIST WAS PUBLISHED 8

l



TABLE OF AUTHORITIES
Cases Page
Bell & Howell: Mamiya Co. v. Masel Supply Co., 6

719 F . 2d 42 (2d Cir. 1 983 )

Bushey v. New York State Civil Serv. Comm'n , 571 F. Supp. 4,7
1562 (N.D.N.Y. 1983), rev'd , 733 F .2d 220 (1984), 
cert, denied, 53 U.S.L.W. 3477 (Jan. 3, 1985)

Guardians Ass'n of New York City v. Civil Service Comm1n , 9,10
630 F .2d 79 (2d Cir. 1980), cert. denied,452 U.S.
940 (1981)

Pennhurst State School v. Halderman, 104 S. Ct. 900 (1984) 7

United States v. New York Telephone Co., 434 U.S. 159 (1977)* 7

Other Authorities:

All Writs Act, 28. U.S.C. § 1651 7

Fed. Rule Evid. 201 2

Fed. Rule Civ. Proc. 11 5

Fed. Rule App. Proc. 10 2



IN THE
UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT
Nos. 85-7259 

85-7343

JAMES BUSHEY, ROGER D. BELL, ROBERT W. FERBER, 
WILLIAM J. NORTON, ROBERT J. SEITZ, GEORGE 
BARTLETT, CHARGES PAGE, WAYNE WILLIAM, WAYNE 
L. STRACK, ROBERT FUCCI, GARY H. FILION, 
EDWARD D. ROGAN, MILES BARNES, DONALD E. CLARK 
and GERALD SWEENEY, and individually 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; JOSEPHINE 
GAMBINO and JAMES McFARLAND, in their 
capacity as Civil Service Commissioners; 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,
GERALD A. WELLS, WILBUR I. WRIGHT, JOSEPH P. 
BATES, THOMAS D. HASKELL and PERCY JONES,

Defendant-Intervenors-Appellees,
GLENDA F. LEATH,

Defendant-Intervenor-Appellant.

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

REPLY BRIEF OF DEFENDANT-INTERVENOR-APPELLANT
GLENDA F. LEATH

PRELIMINARY STATEMENT

All of the plaintiffs and the Wells intervenors had the 

opportunity to compete for promotion under the 1983 selection



procedure that resulted in the Kirkland list. Furthermore,

neither plaintiffs nor the Wells intervenors contest that the 

1933 procedure was carefully developed with outside professional 

expert assistance and is a fair, job-related selection device. 

Rather plaintiffs and the Wells intervenors ask the Court to 

order appointments to be made on the basis of the earlier 1982 

examination simply because of some of these 18 individuals scored 

higher on the earlier test. In essense, the position of plain­

tiffs and the Wells intervenors is that because defendants gave 

an examination, defendants should be required to use the test 

results, despite the fact that the test was hastily prepared, 

cannot be shown to be job-related, and produced an extreme 

adverse impact on those few minority candidates who were not 

discriminatorily excluded from the candidate pool. There is 

simply no legal basis for such a claim.

I.

NEITHER PLAINTIFFS NOR THE WELLS 
INTERVENORS HAVE POINTED TO ANY 
LEGAL BASIS OR AUTHORITY FOR 
CONCLUDING THAT THEY WILL SUCCEED IN 
OBTAINING PERMANENT INJUNCTIVE 
RELIEF*

The merits of this case involve two issues: first, whether

* We note that all of the parties have stipulated that pages 
33-47 of the Addendum to the Brief of Intervenor Leath are 
properly part of the record in this case. That Stipulation has 
been filed with the Northern District pursuant to Fed. Rule App. 
Proc. 10(c). The Court may take judicial notice of the documents 
from the Kirkland case, pages 1-32 of the Addendum. Fed. Rule 
Evid 201.

2



the 1982 examination was scored properly and second, to what 

injunctive relief, if any, the party that prevails on the first 

issue will be entitled. The Northern District focused solely on 

the first issue, concluding that one of two opposing parties must 

prevail on the scoring issue. However, it is the second issue 

that is of crucial importance in issuing a preliminary injunc­

tion .

At a minimum, a preliminary injunction must relate to 

permanent injunctive relief that the movant is likely to obtain. 

Our opening brief discusses in detail why neither plaintiffs nor 

the Wells intervenors have any chance of obtaining permanent 

relief in the form of actual appointments to Captain's positions. 

Plaintiffs and the Wells intervenors totally fail to address this 

devastating reality. In fact, not once in either of their 

lengthy briefs do plaintiffs or the Wells intervenors identify 

any legal basis or authority on which the Northern District might 

order their appointments at the close of this litigtion.

Plaintiffs' only reference to this question occurs on the 

last page of their brief. They do not attempt to argue that the 

District Court would be authorized to order their appointment. 

Rather they state: " [E]ven 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

3



conclusion of this action to enforce their rights under state law

requiring the State to make appo in tmen ts consistent with Civil

Service Law § 56." P1. Br. at 28. Plaintiffs apparently take

the ludicrous position that a federal court is authorized to

issue a preliminary injunction in order to preserve remedial

options in a State court suit that has not even been filed.

Clearly, this is not sufficient to establish a substantial

likelihood of obtaining injunctive relief and any such finding by

the Northern District would have constituted legal error and
1.

abuse of discretion.

Moreover, a State court would not be able to order appointments 
that violate Title VII. Plaintiffs have not attempted to refute 
the analysis in our opening brief demonstrating that appointments 
from the unadjusted Bushey list would violate Title VII. In 
addition, the State defendants disagree with plaintiffs' inter­
pretation of state law. It certainly cannot be said that 
plaintiffs have established a substantial likelihood that they 
would prevail in State court if they were to commence such a 
proceed ing .

Plaintiffs in their brief devote substantial effort in an attempt 
to establish that their Fourteenth Amendment claim of intentional 
discrimination is still alive despite their failure to appeal the 
Northern District's finding that this claim is "not maintain­
able," 571 F. Supp. at 1566-67 n.9. On the last page of their 
brief, plaintiffs suggest that the Court could award back pay and 
retroactive seniority if it found for Plaintiffs on this claim. 
P1. Br . at 28. This argument does not help plaintiffs in the 
defense of the preliminary injunction. First, if back pay and 
retroactive seniority are appropriate remedies, they can be 
awarded without enjoining appointments from the Kirkland list. 
Second, if plaintiffs are arguing that their Fourteenth Amendment 
claims serve as a basis for awarding them appointments, they have 
not estblished a likelihood of success on this claim. The 
Northern District Court has already ruled against them on this 
issue and thus could not have based its injunction on a finding 
that plaintiffs were likely to prevail on this claim.
Third, there is no legal authority under the Fourteenth Amendment 
for awarding plaintiffs appointments, even if they were to

4



The Wells intervenors have even less to say on this point.

As noted in our opening brief, the Wells intervenors have

asserted no claim against the State defendants and thus cannot

possibly assert that they have a substantial likelihood of

prevailing on any claim. In response, the Wells intervenors note

that they have argued that they are entitled to relief and that a
2

motion to file a cross claim probably would be granted. Wells

Br. at 16, n . 1 1 . Of course, the speculative possibility of

relief on a cross claim that has not been filed and may never be 
3

filed is not sufficient to establish a likelihood of success on 

the merits. The Wells intervenors still have failed to identify 

any legal basis for such a claim. This omission is glaring in 

view of the discussion in our opening brief indicating that no 

such basis exists. Since the Wells intervenors have not been 

able to make any argument at all in support of such a claim, they

succeed on their constitutional claim.
To the contrary, counsel for the Wells intervenors conceded in 
the Northern District that because such a claim had not been 
filed, his clients would not be entitled to appointment if the 
State defendants prevailed on the scoring issue. JA. 600.

There is a very real reason why the Wells intervenors may never 
file such a cross claim. Rule 11 of the Federal Rules of Civil 
Procedure requires that the attorney signing a pleading verify 
that it is "warranted by existing law or a good faith argument 
for the extension, modification or reversal of existing law." As 
discussed in the text above and in our opening brief, there is no 
possible legal basis for such a claim by the Wells intervenors 
and thus their attorneys would be subject to Rule 11 sanctions if 
they signed such a claim.

5



can hardly ask this Court to conclude that they have established 

a likelihood of success on the claim.

II.
THE NORTHERN DISTRICT'S FINDING OF 
IRREPARABLE HARM IS CLEARLY ERRO­
NEOUS_________________________ _ _

Both plaintiffs and the Wells-intervenors devote most of 

their briefs to the argument that because of the uniqueness of 

Captain's positions, they would suffer irreparable injury in the 

absence of the injunction. However, the Northern District made 

no findings as to whether Captain's positions are unique or whether 

any claimant would suffer work-related irreparable harm if the 

injunction were not entered. The Northern District's only 

finding of irreparable harm was erroneously based on the con­

clusion that "plaintiffs stand to be irreparably injured by

losing their right to judicial review of their original claims."
4

JA. 891-92. Thus counsel's assertions concerning the uniqueness 

of Captain's positions are irrelevant to the question whether the 

Northern District acted properly in entering the preliminary 

injunction. E . g , , Bell & Howell; Mamiya Co. v. Masel Supply 

Co., 719 F .2d 42, 46 (2d Cir. 1983).

4 The only competent evidence on the issue of job-related harm is 
that submitted by the State defendants, which showed that little, 
if any, harm to the plaintiffs and Wells intervenors would result 
if the injunction were denied. JA. 659-68.

6



As noted in our opening brief, the All Writs Act does not

authorize the entry of an injunction to prevent mootness, where

the moving party has received all the relief to which he or she 
5

is entitled. The Wells intervenors apparently interpret the New
6

York Telephone case, which extended jurisdiction under the All 

Writs Act to non-parties, to authorize district courts to issue 

injunctions to prevent actions that properly moot a case. See 

Wells Br. at 20. Such an interpretation would mean that a case 

could become moot only where the affected parties failed to move 

for a preliminary injunction. This would overrule our entire body 

of mootness law.
Both plaintiffs and the Wells intervenors rely heavily on 

the argument that the Northern District could prevent the State 

defendants from mooting the lawsuit because defendants' failure 

to use the Bushey list might contravene state law. However, the 

federal courts are not empowered to adjudicate claims of viola-

The Wells intervenors assert that the reference to the All Writs 
Act "buttresses" the Northern District's finding on irreparable 
harm, Wells Br. at 20, implicitly conceding that the court's 
reasoning on this point is not by itself sufficient to sustain 
the preliminary injunction. Unfortunately for plaintiffs and the 
Wells intervenors, there is nothing else to be buttressed. The 
Court relied solely on the All Writs Act and the possible mooting 
of plaintiffs' claims. JA. at 891-92.

United States v. New York Telephone Co., 434 U.S. 159 (1977).

7



tions of state law, Pennhurst v. State School v. Halderman , 104

S. Ct. 900 (1984), and this Court has already dismissed the
7

State law claims. 733 F . 2d at 223, n. 4.

III.
THE KIRKLAND CONSENT ORDER REQUIRES 
USE OF THE KIRKLAND LIST TO FILL ALL 
VACANCIES EXISTING ON THE DATE THE 
KIRKLAND LIST WAS PUBLISHED_______

Plaintiffs and the Wells intervenors argue that the Bushey 

list should be used to fill certain vacancies that arose before 

publication of the Kirkland list. They contend that the Kirkland 

Settlement Agreement contemplated some use of the Bushey list.

Plaintiffs and the Wells intervenors misstate the issue. The 

question is not whether the Kirkland settlement allowed the 

Kirkland defendants to make interim appointments while the new 

selection procedure was being developed. The question is whether 

the Kirkland settlement allowed the defendants to hold vacancies 

open and then fill them from the Bushey list after the Kirkland 

list was published. The Settlement Agreement clearly indicates 

that such action is not permitted.

Under the Kirkland settlement, defendants retained the 

freedom to fill Captain's vacancies during the period while the 

Kirkland list was being developed, so long as the appointments

~n Intervenor Leath agrees with the State defendants' conclusion 
that their decision not to use Bushey does not violate State law.

8



were made in a non-discriminatory manner. JA. 702. • The

Settlement Agreement did not compel defendants to make interim

appointments and they limited their freedom in this regard when
9

they agreed to the November 4, 1983 Stipulation.

8

Since the Bushey list had a severe adverse impact on minority 
candidates, even interim use of its unadjusted results would have 
violated the Settlement Agreement's non-discrimination mandate. 
Agreement Art. IV, M 2, JA. 702. Also, Title VII requires that 
interim appointments be made in a manner that avoids an adverse 
racial impact. E .g., Guardians Ass'n of New York City v. Civil 
Service Comm'n., 630 F.2d 79, 108-09 (2d Cir. 1 980 ) , cert. denied, 
452 U.S. 940 (1981).

Two of the Wells intervenors filed affidavits stating that they 
understood "that the Bushey Captain Eligible List would be used 
to make permanent Captain appointments during the full period 
prior to the time specified in the Kirkland stipulation for the 
establishment of a new Captain eligible Tist." JA. 902, 904. 
However, it is clear that the Kirkland Settlement Agreement did 
not compel the Kirkland defendants to make interim appointments 
from the Bushey list or otherwise. The Settlement Agreement set 
a deadline by which the new list had to be published, but the 
defendants were free to issue the new list at any time prior to 
the deadline. In fact, under the Settlement Agreement, the 
defendants could have issued the new list immediately, without 
ever publishing the results of the 1982 examination.

Moreover, as noted above, the Kirkland Agreement gave the 
defendants flexibility to make non-discriminatory use of the 
results of the 1982 examination as an interim selection device 
pending development of the new K i rkland list. Thus, it is 
possible that these Wells intervenors believed that the State 
defendants would take advantage of that option. The fact that 
the Wells intervenors may have held a particular belief about the 
way the defendants might act in the future does not mean the 
Agreement compelled the defendants to act in accordance with that 
belief.

9



The purpose of the Kirkland settlement was to produce a new,

job-related selection procedure as soon as possible, while 

leaving defendants free to meet their operational needs by 

filling current vacancies on an ongoing basis. The fact that 

non-d iscr iminatory interim appointments were permitted does not 

mean that such appointments could be made once the results of a 

new, job-related selection procedure became available. Use of a 

non-job-related interim measures became illegal once a job 

related selection procedure became available. See e,g., Guar­

dians A s s ’n , 630 F . 2d at 1 08-09 . Moreoever, the specific

deadlines set forth in the Settlement Agreement demonstrate that

the parties intended the Kirkland list to be used as soon as pos- 
1 0

sible.

Plaintiffs and the Wells intervenors rely on their assertion 

that Judge Griesa stated in an off-the-record conference that the 

Kirkland Settlement Agreement did not address the effect of the

 ̂ The defendants were required to "use their best efforts" to 
develop the new selection procedure earlier than the mandatory 
deadline. Agreement Art. VI, 1| 6, JA. 708. Moreover, in
contrast with the provisions governing the new Lieutenant's 
examination, the defendants were permitted to administer and use 
the new procedure as soon as possible. Compare Art. VI, 1[ 5, JA. 
707-08, with Art. VI, 11 6, JA. 708. These provisions further 
demonstrate the Kirkland parties' intent to use the Kirkland 
list as soon as possible and to use interim selection measures 
for as few appointments as possible.

The contention that the Bushey list should be used to fill over 
40 of the 60 total captain's positions in the system, see P1. Br. 
at 6, completely violates this intent and would mean that 
two-thirds of all the captains in the system were appointed under 
non-job-related, interim procedures.

10



Kirkland list on the Bushey list. P1. B r . at 12; Wells Br. at 

12, 30. Intervener Leath emphatically disputes this assertion. 

ADD. 26, 41. The conference at issue lasted approximately ten to 

fifteen minutes. Judge Griesa asked whether there was any 

allegation of non-compliance with the Kirkland settlement. The 

parties to the Kirkland settlement indicated that there was not. 

Judge Griesa then indicated that he saw no reason to get in­

volved. JA. 636-37. At no point in the conference did Judge 

Griesa attempt to interpret the Kirkland Settlement Agreement.

Moreoever, an offhand comment made in an off-the-record

conference does not constitute a ruling or judgment and cannot be
1 2

given any binding effect. The only official action taken by

Judge Griesa was to reject the Bushey plaintiffs' motion to 

intervene in the Kirkland case and to enjoin use of the Kirkland 

list. If the Bushey plaintiffs or the Wells intervenors believed 

that Judge Griesa's action in rejecting this motion was erron­

eous, the appropriate course would have been to file an appeal or

11 Defendants had indicated their intent to comply with the Kirkland 
settlement by using the Kirkland list, so there wasno issue of 
non-compliance.

'1 To give any binding effect to an informal, off-the-record comment 
would violate the due process rights of the parties. Although 
the Bushey plaintiffs submitted written motion papers to Judge 
Griesa, intervener Leath and the Kirkland class and the defen­
dants did not see the papers until a few minutes prior to the 
conference and were not given any opportunity to respond.

11



a writ o£ mandemus. The fact that Judge Gr 

tiffs' direct attack on the Kirkland consent 

a collateral attack on the settlement proper.

iesa rejected plain-

order does not make 
1 3

Respectfully submitted,

6 W a&. o.
JULIUS LeVONNE CHAMBERS
PENDA D. HAIR
16th Floor
99 Hudson Street
New York, New York 10013
(212) 219-1900

ATTORNEYS FOR
DEFENDANT-INTERVENOR-APPELLANT 

GLENDA F. LEATH

3 The Wells intervenors argue that the cases cited by Intervenor 
Leath concerning the illegality of the collateral attack on the 
Kirkland consent order are inapplicable because some of the 
collateral attackers (the Wells intervenors) were parties to the 
Kirkland Settlement. Wells Br. at 29, n.22. This is a meaning­
less distinction. Parties to a consent order have agreed to its 
terms and to the jurisdiction of the court that entered the 
decree. They are thus more restricted in their ability to launch 
a collateral attack than non-parties. The cases cited by 
intervenor Leath, which hold that even non-parties, who had no 
opportunity to contest the decree, are precluded from collateral­
ly attacking it, apply with even more force to parties to the 
decree .

1 2



CERTIFICATE OF SERVICE

I hereby certify that I served the attached Reply Brief 
of Defendant-Intervenor-Appellant Glenda F. Leath, by 
depositing copies thereof, in the United States mail, first 
class postage prepaid, properly addressed to:

Charles R. Fraser, Esq.
New York State Department of Law 
49th Floor
2 World Trade Center 
New York, New York 10047

Steven Houck, Esq.
Donovan, Leisure, Newton & Irvine 
30 Rockefeller Plaza 
New York, New York 10112

Ronald G. Dunn, Esq.
Rowley, Forrest & O'Donnell, P.C. 
90 State Street 
Albany, New York 12207

$ \ m c L<x  £).
Attorney for Defendant- 
In tervenor-appe11ant 
Glenda F. Leath