Firefighters Local Union No. 1784 v. Stotts Brief Amicus Curiae

    Nos. 82-206, 82-229

In The

Aupratt? Olmtrt uf %  Mnxtth States
October T e r m , 1983

Firefighters Local Union No. 1784,
Petitioner,v.

Carl W. Stotts, et al.,
________  Respondents.

Memphis Fire Department, et al.,
Petitioners, v. ’

Carl W. Stotts, et al,
_________Respondents.

On Writs of Certiorari to the United States 
Court of Appeals for the Sixth Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW AS AMICUS 
CURIAE IN SUPPORT OF RESPONDENTS

Fred N. F ishman  
Robert H. Kapp 

Co-Chairmen 
W illiam L. Robinson 

Lawyers’ Committee for 
Civil Rights Under Law 

733 15th Street, N.W.
Washington, D.C. 20005 
(202) 682-6700

Attorneys for Amicus Curiae 
Lawyers’ Committee for Civil Rights Under Law

October 24, 1983 * Counsel of Record

Richard M. Sharp *
Jeffrey C. Martin 
David M. Brenner 

Shea & Gardner 
1800 Massachusetts Ave., N.W. 
Washington, D.C. 20036 
(202) 828-2000

W i l s o n  - Ep e s  P r i n t i n g  C o . ,  In c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n , D . C .  2 0 0 0 1



QUESTIONS' PRESENTED

This brief will address the following questions:

(1) Whether the correctness o f a preliminary injunc­
tion prohibiting the City o f Memphis in May 1981 from  
reducing by layoffs or demotions the percentage o f blacks 
then occupying certain positions in the Memphis' Fire 
Department is moot where all the firefighters laid off or 
demoted by Memphis in 1981 have been restored to their 
form er positions and the preliminary injunction has 
expired.

(2) Whether a preliminary injunction prohibiting the 
City o f Memphis in May 1981 from  reducing by layoffs 
or demotions the percentage o f blacks then occupying 
certain positions in the Memphis Fire Department ex­
ceeded the district court’s inherent authority to m odify a 
prior consent decree to preserve the relief granted therein.

(3) Whether § 706(g) o f the Civil Rights A ct o f 1964 
authorizes race-conscious relief fo r  systematic employ­
ment discrimination.

(i)



TABLE OF CONTENTS
Page

INTEREST OF AMICUS C U R IA E ....... ......................... 1

SUMMARY OF ARGUM ENT..................................    2

ARGUM ENT.......................................................................... 4

I. THIS CASE IS MOOT BECAUSE THE PRE­
LIMINARY INJUNCTION AT ISSUE HAS 
BEEN IRREVOCABLY CARRIED OUT AND 
THIS COURT’S REVIEW OF THAT EX­
PIRED INJUNCTION WOULD NOT AFFECT
THE PARTIES’ LEGAL RIGHTS ....................  4

A. The Correctness of the District Court’s Deci­
sion to Grant a Preliminary Injunction Is 
M oot......................................................................  4

B. The Expired Preliminary Injunction Is Not
Saved From Mootness By the Fact that Laid- 
off Employees Did Not Accrue Seniority 
Credit During the Layoff P eriod ....... -........ 7

C. The Expired Preliminary Injunction Is Not 
Justiciable As An Order “ Capable o f Repeti­
tion, Yet Evading Review” ....... ............ ........ 10

II. THE PRELIMINARY INJUNCTION WAS AN 
APPROPRIATE EXERCISE OF THE DIS­
TRICT COURT’S INHERENT AUTHORITY 
TO MODIFY A  CONSENT DECREE TO EF­
FECTUATE ITS PURPOSE IN LIGHT OF 
CHANGED CIRCUMSTANCES  ......................  13

A. The Preliminary Injunction Does Not Rest 
Upon the District Court’s Remedial Author­
ity Under Title VII But Rather Upon Its 
Inherent Authority to Modify the Original 
Consent Decree so as to Effectuate Its Basic 
Purpose........................... .....................................  13

(hi)



iv

TABLE OF CONTENTS— Continued

Page
B. The District Court Did Not Abuse Its Discre­

tion In Issuing the Preliminary Injunction..,. 20

III. THE FEDERAL COURTS ARE AUTHORIZED 
TO GRANT RACE-CONSCIOUS AFFIRM A­
TIVE RELIEF UNDER TITLE V II ................. 24

CONCLUSION ......................................................................  30



V

TABLE OF AUTHORITIES
CASES: Page

Airline Stewards & Stewardesses Association, Lo­
cal 550 V. American Airlines, Inc., 573 F.2d 960 
(7th Cir. 1979), cert, denied, 439 U.S. 876
(1978) ...... .......................................... .......................  3,16

Alabama V. United States, 279 U.S. 229 (1929).— 22
Albemarle Paper Co. V. Moody, 422 U.S. 405

(1975) ...................      25
Alexander v. Gardner-Denver Co., 415 U.S. 36

(1974) ..........     17
American Book Co. V. Kansas, 193 U.S. 49 (1904).. 6, 8
Arizona V. California, 51 U.S.L.W. 4330 (U.S.

Mar. 30, 1983) ....... ........ .................................... . 13, 15
Association Against Discrimination in Employ­

ment, Inc. V. Bridgeport, 647 F'.2d 256 (2d Cir.
1981), cert, denied, 455 U.S. 988 (1982) ............ 19

Association Against Discrimination in Employ­
ment, Inc. V. Bridgeport, 710 F.2d 69 (2d Cir.
1983) ........................          21

Boston Chapter, NAACP  V. Beecher, No. 81-1642,
slip op. (1st Cir. Aug. 31, 1983)___ ___________ 9

Boston Chapter, NAACP  V. Beecher, 504 F.2d 
1017 (1st Cir. 1974), cert, denied, 421 U.S. 910
(1975) ............ ............. ...........      26

Boston Firefighters Union v. Boston Chapter,
NAACP, 51 U.S.L.W. 4566 (U.S. May 16, 1983).. 9,12

Brown v. Chote, 411 U.S. 452 (1973) ...................... 22
Broivn V. Neeb, 644 F.2d 551 (6th Cir. 1981) ..... 18, 21, 22
Brownlow v. Schwartz, 261 U.S. 216 (1922).... . 6
Campbell Soup Co. v. Martin, 202 F.2d 398 (3d Cir.

1953) .........................       6
Carson v. American Brands, Inc,, 654 F.2d 300

(4th Cir. 1981) ........................................ ...............  16,17
Castro V. Beecher, 522 F. Supp. 873 (D. Mass.

1981) , aff’d, 679 F.2d 965 (1st Cir. 1982), va­
cated, 103 S. Ct. 3561 (1983)......... .................. . 9

Chisholm V. United States Postal Service, 665 F.2d
482 (4th Cir. 1981)................................. ................. 26

Chrysler Corp. v. United States, 316 U.S. 556
(1942) ...... ................................... ................ 3,13, 15, 16, 21



VI

TABLE OF AUTHORITIES— Continued
Page

Columbia Artists Management, Inc. v. United
States, 381 U.S. 348 (1965)...................................  21

County of Los Angeles V. Davis, 440 U.S. 625
(1979) ........ ................... .................................... ........ 10

Day V. Mathews, 530 F.2d 1083 (D.C. Cir. 1976).... 20
DeFunis V, Odegaard, 416 U.S. 312 (1974) ........ .1, 11,12
EEOC V. American Telephone & Telegraph Co.,

556 F.2d 167 (3d Cir. 1977), cert, denied, 438
U.S. 915 (1978) ....................... ............ ....................  26, 27

EEOC V. Safeway Stores, Inc., 611 F.2d 795 (10th 
Cir. 1979), cert, denied, 446 U.S. 952 (1980)..3, 15,16 

Evans V. Buchanan, 512 F. Supp. 839 (D. Del.
1981) ............. ........... ............................................ . 21

Exxon Corp. v. Texas Motor Exchange, Inc., 628
F.2d 500 (5th Cir. 1980) ................ ............ . 21

Firefighters Institute for Racial Equality v. City 
of St. Louis, 616 F.2d 350 (8th Cir. 1980), cert.
denied, 452 U.S. 938 (1981) .................................. j 26

Franks V. Bowman Transportation Co., 424 U.S.
747 (1976) ...... .................... ................................... . 19,26

Fulenwilder v. Firefighters Association Local Un­
ion 1784, 649 S.W.2d 268 (Tenn. 1982)...... ........ 7

Haskell V. Kansas Natural Gas Co., 224 U.S. 217
(1912) ................................................ .......................  6

Hughes V. United States, 342 U.S. 353 (1952)____  22
Illinois State Board of Elections v. Socialist Work­

ers Party, 440 U.S. 173 (1979) __________ ______  10,11
King V. Laborers International Union, Local No.

818, 443 F.2d 273 (6th Cir. 1971) ................. ....... 20
Krem ensv. Bartley, 431 U.S. 119 (1977 )............. . 12
Liquid Carbonic Corp. v. United States, 350 U.S.

869 (1955), rev’g 123 F. Supp. 653 (E.D.N.Y.
1954)...................................................... .............. 21

Local 53, International Association of Heat &
Frost Insulators & Asbestos Workers V. Vogler,
407 F.2d 1047 (5th Cir. 1969) .......... ................ . 26, 28

Local No. 8-6, Oil, Chemical and Atomic Workers 
International Union v. Missouri, 361 U.S. 363 
(1960) .................................................... .................. . 6, 7, 8



V ll

TABLE OF AUTHORITIES—Continued
Page

Lorillard v. Pons, 434 U.S. 575 (1978) .............-...... 29
Moore V. City of San Jose, 615 F.2d 1265 (9th Cir.

1980) .................................. ......... ................................. 16
Murphy V. Hunt, 455 U.S, 478 (1982).......................  8, 10
Pacific Railroad V. Ketchum, 101 U.S. 289 (1879).. 16
Pasadena City Board of Education V. Spangler,

427 U.S. 424 (1976) ............. .......... ...... ............. ............. 13,15
Patterson V. Greemvood School District 50, 696

F.2d 293 (4th Cir. 1982)......................................... - 20
Regents of the University of California V. Baklce,

438 U.S. 265 (1978) ........ .................................... -  1,29
Richmond Newspapers, Inc. V. Virginia, 448 U.S.

555 (1980)............... ................ ..........-......................  12
Rios V. Enterprise Association Steamfitters Local

638, 501 F.2d 622 (2d Cir. 1974) .................. ....... 26
Society Hill Civic Association v. Harris, 632 F.2d

1045 (3d Cir. 1980) ________ ______ _____ -........ 16
Southern Pacific Terminal Co. V. ICC, 219 U.S, 499

(1911)....... .... ....................... .......- ........... ........ ...... 10
Super Tire Engineering Co. V. McCorkle, 416 U.S.

115 (1974) .... ............. ........................ ................. -  12
Swift & Co. V. United States, 276 U.S. 311 (1928).. 3, 16 
System Federation No. 91 v. Wright, 364 U.S. 642

(1961) .................................................... ................ 13, 17, 22
Teamsters V. United States, 431 U.S. 324 (1977).. 19, 25,

26
Thompson v. Sawyer, 678 F.2d 257 (D.C. Cir.

1982)   ........................ .................................  26
United States V. Armour & Co., 402 U.S. 673

(1971).... .......................................................-.............  22,23
United States v. Atlantic Refining Co., 360 U.S.

19 (1959)  .......................... .............. ...................  22
United States V. Christie Industries, Inc., 465 F.2d

1002 (3d Cir. 1972) __________ - .............. ..........-  6
United States V. City of Alexandria, 614 F.2d 1358

(5th Cir. 1980) ................... ............... ............ ....- 26
United States V. City of Chicago, 663 F.2d 1354

(7th Cir. 1981) .................... .................. ............. . 26



vm

United States V. I.B.E.W., Local No. 38, 428 F.2d 
144 (6th Cir.), cert, denied, 400 U.S. 943
(1970) ......................................................... ........-....... 26

United States V. I.B.E.W., Local No. 212, 472 F.2d
634 (6th Cir. 1973) ........................ ............ ........  29

United States v. International Harvester Co., 274
U.S. 693 (1927) ................. ....... ................ ..............  21

United States V. International Union of Elevator 
Constructors Local Union No. 5, 538 F.2d 1012
(3d Cir. 1976)........................................................... 29

United States V. Ironworkers' Local 36, 443 F.2d 
544 (9th Cir.), cert, denied, 404 U.S. 984
(1971) ........ ........... ...................... ................ ..............  26, 28

United States V, ITT Continental Baking Co., 420
U.S. 223 (1975)....................... .................................  22, 24

United States V. Lee Way Motor Freight, Inc., 625
F.2d 918 (10th Cir. 1979)............... ....................... 26

United States V. Swift & Co., 286 U.S. 106 (1932).. 3, 13,
15,16, 21

United States V. United Shoe Machinery Corp., 391
U.S. 244 (1968) ......... ................ ....................... -13, 21, 22

United States V. W.T. Grant Co., 345 U.S. 629
(1953) ................................... .................................. .... 10

United Steelworkers V. Weber, 443 U.S. 193
(1979) ........... ..................................... ................ 1,19, 28, 30

University of Texas v. Camenisch, 451 U.S. 390
(1981)........................................ ............ ........... -.......-  6, 8

Walling V. Miller, 138 F.2d 629 (8th Cir. 1943),
cert, denied, 321 U.S. 784 (1944) ............. ......... 16

Weinstein V. Bradford, 423 U.S. 147 (1975) ........ . 10
Western Addition Community Organization V.

Alioto, 514 F.2d 542 (9th Cir.), cert, denied,
423 U.S. 1014 (1975) ............ ........ ............. - .......6,11, 12

White V. Roughton, 689 F.2d 118 (7th Cir. 1982),
cert, denied, 103 S. Ct. 1524 (1983)..................... 22

W.R. Grace & Co. V. Local Union 759, 51 U.S.L.W.
4643 (U.S, May 31, 1983)........ ........ ..................2, 8, 9, 18

Wright v. Council of the City of Emporia, 407 U.S.
451 (1972) .

TABLE OF AUTHORITIES— Continued
Page

15



ix

TABLE OF AUTHORITIES— Continued

STATUTES: Page
Civil Rights Act of 1964,

Title VII, 42 U.S.C. § 2000e et seq. (1976 &
Supp. V 1981) .............. ............. ............ .........passim

§ 703(h), 42 U.S.C. § 2000e-3(h) (1976)..... passim
§ 703 ( j ) , 42 U.S.C. § 2000e-3 ( j)  (1976)..... passim
§ 706(g), 42 U.S.C. § 2000e-5(g) (1976)___passim

Equal Employment Opportunity Act of 1972, Pub.
L. No. 92-261, 86 Stat. 103 ................ ....................  28

LEGISLATIVE MATERIAL:
Subcomm. on Labor of the Senate Comm, on Labor 

and Public Welfare, Legislative History of the 
Equal Employment Opportunity Act of 1972.... 29

110 Cong. Rec. 2567, 2568, 2570 (1964)...................  28
118 Cong. Rec. 1662 (1972) ........................ ..............  29

OTHER AUTHORITIES:
Brodin, The Standard of Causation in the Mixed- 

Motive Title VII Action: A Social Policy Per­
spective, 82 Colum. L. Rev. 292 (1982) ................  20

2 A. Larson, Employment Discrimination § 54.41
(1983) .............................................................. ..........  21

Opinion of Tennessee Attorney General No. 79-172
(April 10, 1979) ..................................... ............ . 7

11 C. Wright & A. Miller, Federal Practice and 
Procedure §2961 (1973) .......................................  21



BRIEF FOR THE LAWYERS’ COMMITTEE FOR 
CIVIL RIGHTS UNDER LAW AS AMICUS 
CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS CURIAE 1
The Lawyers’ Committee for Civil Rights Under Law 

was organized in 1963 at the request of the President of 
the United States to involve private attorneys in the 
national effort to assure civil rights to all Americans. 
The Committee membership today includes several for­
mer presidents of the American Bar Association, several 
law school deans, and many of the nation’s leading 
lawyers.

The Committee conducts an extensive litigation pro­
gram against employment discrimination, representing 
both government employees and private-sector employees. 
In some of its cases, consent decrees and adjudicated 
decrees have been entered that provide race-conscious 
affirmative relief to remedy an employer’s past systematic 
discrimination. We have previously addressed the legality 
of race-conscious affirmative action in our amicus briefs 
filed in United Steelworkers v. Weber, 443 U.S. 193 
(1979), Regents of the University of California v. Bakke, 
438 U.S. 265 (1978), and DeFunis v. Odegaard, 416 
U.S. 312 (1974).

The Committee submits this brief primarily to develop 
two points that petitioners and their supporting amici 
overlook in arguing that Title VII does not authorize 
the federal courts to grant race-conscious relief: first, 
resolution of their contentions is inappropriate because 
the preliminary injunction at issue here is moot; and 
second, the question on the merits is not whether Title 
VII authorizes the preliminary injunction at bar but 
whether the district court abused its discretion in exercis­
ing its inherent authority to modify a consent decree. 
We also show that Title VII does authorize race-conscious 
relief.

1 The parties’ letters of consent to the filing of this brief are 
being filed with the Clerk pursuant to Sup. Ct. Rule 36.2.



SUMMARY OF ARGUMENT
1. Mootness. The preliminary injunction at issue is 

moot. That order enjoined the City of Memphis in May 
1981 from reducing, by layoffs or demotions, the per­
centage of blacks then occupying certain positions in the 
Memphis Fire Department. The City complied with this 
injunction in making layoffs and demotions within the 
Department. Subsequently, the City restored all the 
Memphis firefighters who were laid off or demoted to 
their former positions. Thus, the preliminary injunction 
at issue here has been irrevocably carried out, and no 
person’s employment is at stake.

Petitioners have suggested that the expired prelimi­
nary injunction should be reviewed because the formerly 
laid-off firefighters lost seniority credit during the layoff 
period. But no firefighter has made any claim for resto­
ration of seniority credit, and Tennessee law would not 
recognize such a claim. Even if a controversy over sen­
iority credit did exist in some forum, such a controversy 
is not before this Court and hence would not justify re­
view of the moot injunction. Moreover, the expired in­
junction, whether affirmed or reversed, would not consti­
tute a defense for the City against claims by formerly 
laid-off firefighters for restoration of lost seniority. W.R. 
Grace & Co. v. Local Union 759, 51 U.S.L.W. 4643 (U.S. 
May 31, 1983).

The expired preliminary injunction is not justiciable as 
an order “ capable of repetition, yet evading review.” 
There is little chance that the 1981 layoffs, unprece­
dented in Memphis history, will recur. And even if 
Memphis firefighters are laid off in the future, those 
layoffs are not apt to be constrained by injunctive relief 
such as that challenged here. With the passage of time 
and even modest progress toward the goals of the consent 
decree, there will be no basis for enjoining seniority- 
based layoffs. Moreover, the preliminary injunction at 
bar is not inherently evasive of review. If the petitions 
for certiorari had not been held pending disposition of

2



3
a similar case, this case would likely have been decided 
prior to the recall of the laid-off firefighters. In addition, 
it was fortuitous that attrition and retirement permitted 
recall of all the laid-off firefighters prior to expiration of 
their 2-year recall rights, thus mooting the issue of the 
correctness of the injunction.

2. Modification of a Consent Decree. Petitioners con­
tend that the preliminary injunction in this case exceeded 
the district court’s authority under Title VII because it 
prevented the layoff of black firefighters who may not 
have been victims of the City’s discrimination. In their 
view, such race-conscious relief is not authorized by Title 
VII. But the preliminary injunction at issue here did not 
rest upon the district court’s authority to redress viola­
tions of Title VII; it rested upon the court’s inherent 
authority to modify an approved consent decree to effectu­
ate its basic purpose in light of unanticipated circum­
stances. A court may properly exercise its inherent au­
thority to modify a consent decree to effectuate the 
original purpose of the decree without making the specific 
factual determinations that would be necessary to sup­
port the same relief in a litigated case, and without stop­
ping to inquire whether the defendant could have success­
fully opposed such relief had the case proceeded to trial. 
By entering into a consent decree, the parties forego the 
litigation that would lead to judicial identification of the 
victims of discrimination. Such a decree may properly be 
modified to avoid frustration of the relief granted therein 
without reopening the factual disputes composed by the 
decree and requiring the plaintiffs to prove their case on 
the merits.

The district court did not abuse its discretion in deter­
mining that the preliminary injunction was necessary to 
effectuate the consent decree’s purpose in light of the 
unanticipated layoffs announced by the City. That court 
reasonably concluded that the decree’s purpose is prompt 
and ongoing correction of the underrepresentation of 
blacks in the Fire Department caused by discriminatory



4
hiring and promotion practices. The district court also 
reasonably found that the City’s proposed layoffs on the 
basis of seniority would frustrate the decree’s purpose.

3. Race-Conscious Relief under Title VII. Petitioners’ 
contention that Title VII does not authorize race-conscious 
relief is not only inapposite, it is incorrect. Neither 
§ 703(h) nor § 703 ( j ), relied upon by petitioners, speaks 
to or limits the judicial remedies available to correct vio­
lations of Title VII. Section 706(g), the remedial provi­
sion of the title, vests broad authority in the district 
courts to issue such relief as deemed “appropriate.” As 
the courts of appeals have unanimously held, race­
conscious relief is “ appropriate” in the context of mani­
fest and pervasive employment discrimination. Moreover, 
in amending § 706(g) in 1972, Congress endorsed the 
prevailing judicial view that the authority conferred by 
§ 706(g) encompasses race-conscious remedies that may 
benefit persons who are not proven victims of discrimi­
nation.

ARGUMENT

I. THIS CASE IS MOOT BECAUSE THE PRELIMI­
NARY INJUNCTION AT ISSUE. HAS BEEN IR­
REVOCABLY CARRIED OUT AND THIS COURT’S 
REVIEW OF THAT EXPIRED INJUNCTION 
WOULD NOT AFFECT THE PARTIES’ LEGAL 
RIGHTS

A. The Correctness of the District Court’s Decision to 
Grant a Preliminary Injunction Is Moot

In May of 1981 the City of Memphis faced an unprece­
dented fiscal crisis and promulgated a layoff policy to 
reduce its expenditures.* 2 On May 8, 1981, the district

2 The layoff policy provided that: (1) the Mayor has sole au­
thority to determine which positions would be abolished; and
(2) any person occupying an abolished position may bump a less 
senior person within his classification or the least senior employee



5
court issued a preliminary injunction restraining the City 
from implementing its layoff policy in a manner that 
would “ decrease the percentage of black lieutenants, 
drivers, inspectors and privates that are presently em­
ployed in the Memphis Fire Department.”  Pet. App. A78. 
The City fully complied with the preliminary injunction 
in making the layoffs and demotions it deemed necessary. 
Over the next two years, natural attrition and retire­
ments created vacancies in the Fire Department, and, 
with the aid of a tax increase, all laid off or demoted 
firefighters were restored to their former positions. Re­
spondents’ Suggestion of Mootness at 1; Petitioners’ 
Joint Opposition to Respondents’ Suggestion of Mootness 
(“ Joint Opp.” ) at 1. Thus, the preliminary injunction of 
May 8, 1981, which is the only order under review, has 
been irrevocably carried out and no firefighter’s job is 
now at stake.

In addition, the preliminary injunction has expired. 
That order simply required that the City “ not apply the 
seniority policy proposed”  to decrease the percentage of 
blacks occupying certain positions in the Fire Depart­
ment as of May 8, 1981. Pet. App. A78. Thus, even if 
the City at some future time announces new layoffs in 
the Fire Department, its decision would not be governed 
in any way by the order of May 8, 1981.3

in a lower classification, or may go on layoff. J.A. 83-89. Because 
the actual effect of the layoff policy on an individual’s employment 
depended on numerous decisions by other1 employees as well as the 
City administration, the City was unable to advise the district 
court of the precise impact that the layoff policy would have on 
blacks. J.A. 70. An exhibit compiled by the Fire Department and 
introduced at the preliminary injunction hearing, however, indi­
cated that the City’s layoff policy would drastically reduce the 
number of black lieutenants and drivers. J.A. 69, 96-97.

3 Petitioners suggest that the preliminary injunction could con­
ceivably affect future layoffs. Joint Opp. at 4. This contention 
is belied by the specific terms of the district court’s order, quoted 
in text, by its provisional status as a preliminary injunction, and 
by the fact-specific rationale for its issuance. “The language of an 
injunction must be read in the light of the circumstances surround-



6

Since the correctness of the preliminary injunction is 
the only issue before the Court, this case is moot. Uni­
versity of Texas v. Camenisch, 451 U.S. 390 (1981), 
establishes that “the correctness of the decision to grant 
a preliminary injunction” is moot when “ the terms of the 
injunction * * * have been fully and irrevocably carried 
out.” Id. at 394, 398. Numerous other cases confirm 
that full compliance with an injunction moots the ques­
tion whether the injunction should have issued. E.g., Oil 
Workers Union v. Missouri, 361 U.S. 363 (1960) ; Ameri­
can Book Co. v. Kansas, 193 U.S. 49 (1904) ; Western 
Addition Community Organization v. Alioto, 514 F.2d 
542, 544 (9th Cir.) (per curiam), cert, denied, 423 U.S. 
1014 (1975); Campbell Soup Co. v. Martin, 202 F.2d 398 
(3d Cir, 1953). As the Court explained in Oil Workers 
Union:

“ The decision we are asked to review upheld only the 
validity of an injunction, an injunction that expired 
by its own terms * * *. Any judgment of ours at 
this late date ‘would be wholly ineffectual for want 
of a subject matter on which it could operate. An 
affirmance would ostensibly require something to be 
done which had already taken place. A reversal 
would ostensibly avoid an event which had already 
passed beyond recall. One would be as vain as the 
other. To adjudicate a cause which no longer exists 
is a proceeding which this Court uniformly has de­
clined to entertain.’ ”

Oil Workers Union v. Missouri, supra, 361 U.S. at 371, 
quoting Brownlow v. Schwartz, 261 U.S. 216, 217-18 
(1922).

ing its entry: the relief sought by the moving party, the evidence 
produced at the hearing on the injunction, and the mischief that the 
injunction seeks to prevent.”  United States v. Christie Indus., Inc., 
465 F.2d 1002, 1007 (3d Cir. 1972). Accord, Haskell v. Kansas 
Natural Gas Co., 224 U.S. 217, 223 (1912). These factors all indi­
cate that the preliminary injunction was directed only to the layoffs 
announced in May 1981. See also Fed.R.Civ.P. 65(d) (injunction 
must “be specific in terms” ).



B. The Expired Preliminary Injunction Is Not Saved 
From Mootness By the Fact that Laid-off Employees 
Did Not Accrue Seniority Credit During the Layoff 
Period

Petitioners maintain that the correctness of the district 
court’s decision to issue a preliminary injunction is saved 
from mootness because the laid-off firefighters did not 
accrue seniority credit during the layoff period, and this 
loss adversely affects an employee’s opportunities for 
future promotions and job transfers and an employee’s 
security from future layoffs. Joint Opp. at 6-7. This 
argument fails for several reasons.

In the first place, the petitioners do not suggest that 
any formerly laid-off firefighter has filed a claim for 
seniority credit or, to raise a related issue, backpay, for 
the layoff period. Amicus is aware of no such claim. 
Thus, the “ controversy” over seniority credit is hypo­
thetical.4

Second, even if such controversies did exist, the deci­
sions of this Court recognize that a case pending here is 
not kept alive because related issues are pending between 
the same parties in another forum. For example, in Oil 
Workers Union v. Missouri, supra, the Court declined 
to review an expired anti-strike injunction issued pur­
suant to an allegedly unconstitutional state statute, even 
though the challenged statute also governed a monetary 
penalty claim pending in state court against the union.

* It is not surprising that no firefighter has brought suit claim­
ing that he was laid off in violation of the Memorandum of Under­
standing, an agreement between the Union and the City providing 
that any layoffs shall be made on the basis of seniority. Pet. App. 
A81. The Supreme Court of Tennessee has recently confirmed that 
the Memorandum of Understanding confers no enforceable rights. 
Fulenwilder V. Firefighters Ass’n Local Union 1784, 649 S.W.2d 
268, 270 (Tenn. 1982). The Memorandum of Understanding is 
merely a reflection of the right of public employees to “meet and 
confer” with their employer; any binding agreement would violate 
the principle of Tennessee law that “ [p]ublic employers cannot 
abdicate or bargain away their continuing legislative discretion. 
* * *” Opinion of Tennessee Attorney General No. 79-172 (April 10, 
1979).

7



“ [T]hat suit is not before us. We have not now jurisdic­
tion of it or its issues. Our power only extends over and 
is limited by the conditions of the case now before us.” 
361 U.S. at 370, quoting American Book Co. v. Kansas, 
193 U.S. 49, 52 (1904). Accord, Murphy v. Hunt, 455 
U.S. 478, 481 & n.5 (1982) (per curiam) ; University of 
Texas V. Camenisch, supra, 451 U.S. at 394.

Third, this Court’s affirmance or reversal of the dis­
trict court’s expired preliminary injunction would have 
no effect on any claims by previously laid-off firefighters 
for restoration of lost seniority or backpay. The district 
court did not order the layoff of any firefighters. Nor 
did the district court address the issues of seniority 
credit or backpay for firefighters the City might choose 
to lay off. Judge McRae stated that “ I don’t know what 
the policy will be with regard to that memorandum of 
understanding that the City signed with the Fire Fight­
ers Union.”  Pet. App. A76. Thus, the district court’s 
order by its terms and intent does not bar any claims by 
laid-off firefighters for restoration of seniority or back­
pay. Under these circumstances, the expired preliminary 
injunction would not constitute a defense for the City to 
claims by laid-off firefighters. This much is made clear 
by this Court’s recent decision in W.R. Grace & Co. v. 
Local Union 759, 51 U.S.L.W. 4643 (U.S. May 31, 1983), 
which held that a district court injunction requiring an 
employer to conduct any layoffs pursuant to the terms 
of a Title VII conciliation agreement, instead of pursu­
ant to the seniority provisions of the collective bargain­
ing agreement, does not constitute a defense to a damages 
claim by an employee laid off in violation of the collec­
tive bargaining agreement.5

8

5 To carry out the speculation regarding unasserted causes of 
action to its logical conclusion, we note that the City has no poten­
tial cause of action that could be affected by this Court’s review of 
the district court’s expired preliminary injunction. Even if for­
merly laid-off white firefighters seek backpay or seniority credit 
from the City and even if they prevail on those claims, the City 
would have no claim, for reimbursement against respondents for 
securing an allegedly erroneous injunction. No bond was posted for



9
The recent case of Boston Firefighters Union v. Boston 

Chapter, NAACP, 51 U.S.L.W. 4566 (U.S. May 16, 
1983) (per curiam) provides an instructive contrast to 
the case at bar. That case involved a permanent injunc­
tion enjoining seniority-based layoffs that would decrease 
the percentage of minority officers in the Boston Fire and 
Police Departments below specified levels. Like the in­
stant case, the laid-off employees were reinstated to their 
former positions. Unlike the present case, the laid-off 
officers were pursuing administrative appeals seeking 
restoration of lost seniority and backpay. Also unlike 
the present case, in the Boston case the district court’s 
injunction could have been interpreted as enjoining the 
administrative agency considering those claims from 
granting backpay or restoring lost seniority. Castro v. 
Beecher, 522 F. Supp. 873, 878 (D. Mass. 1981). Never­
theless, this Court remanded for consideration of moot­
ness, 51 U.S.L.W. 4566, and the First Circuit dismissed 
the appeal as moot. Boston Chapter, NAACP V. Beecher, 
No. 81-1642, slip op. (1st Cir. Aug. 31, 1983). The pres­
ent case is much more clearly moot.6

the preliminary injunction, and “ [a] party injured by the issuance 
of an injunction later determined to be erroneous has no action for 
damages in the absence of a bond.” W.R. Grace & Co. V. Local Union 
759, supra, 51 U.S.L.W. at 4646 n.14.

6 In the Boston Firefighters case, the laid-off policemen and fire­
fighters were reinstated pursuant to a newly enacted state1 statute. 
As this Court explained, that statute1 “provid fed,] the City of Boston 
with new revenues, require[d] reinstatement of all police and fire­
fighters laid off during the reductions in force, secur[ed] these 
personnel against future layoffs for fiscal reasons, and required] 
the maintenance of minimum staffing levels in the police and fire 
departments through June 30, 1983.” 51 U.S.L.W. 4566. In the 
instant case, the City was able to reinstate all laid-off or demoted 
firefighters prior to1 expiration of their recall rights due to a tax 
increase and attrition within the Fire Department.

Unlike petitioners (Joint Opp. at 2-6), we perceive no- feature in 
the Massachusetts, statute that supports mootness in that case but 
not this one. Certainly the minimum staffing requirement provided 
no significant protection against recurrence of the controversy-— 
that requirement expired six weeks after this Court’s remand for



10

C. The Expired Preliminary Injunction Is Not Justi­
ciable As An Order “Capable of Repetition, Yet 
Evading Review”

Ordinarily a case is moot if the parties lack a legally 
cognizable interest in its outcome, but the decisions of 
this Court recognize an exception to this rule for cases 
that are “ capable of repetition, yet evading review.” 
Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 
(1911). This exception is limited to cases satisfying two 
requirements: (1) there is a “ reasonable expectation” or 
a “ demonstrated probability”  that the same complaining 
party will again be subjected to the challenged action; 
and (2) the challenged action is by its nature too short 
to be fully litigated prior to its cessation or expiration. 
Murphy v. Hunt, supra, 455 U.S. at 482; Illinois State 
Board of Elections V. Socialist Workers Party, 440 U.S. 
173, 187 (1979) ; Weinstein v. Bradford, 423 U.S. 147, 
149 (1975) (per curiam). Contrary to petitioners’ sug­
gestion, Joint Opp. at 6, neither of the exception’s re­
quirements is met in this case.* 7

consideration of mootness. Moreover, while the statute protected 
specific individuals from future layoffs, it did not prevent the 
Boston Police and Fire Departments from laying off other individ­
uals; and in making such layoffs, the Departments were perma,- 
nently enjoined from reducing the percentage o f minority officers 
below specified levels.

7 Petitioners, and the United States also assert that this case is 
not moot unless respondents satisfy the “heavy burden” of estab­
lishing (1) that there is no reasonable expectation that the en­
joined conduct will recur and (2) that interim relief or events have 
completely eradicated the effects of the alleged violation. Joint Opp. 
at 3-5; Brief for United States as Amicus Curiae at 7-8 n .ll. As 
support for this, argument, they cite United. States V. W.T. Grant 
Co., 345 U.S. 629 (1953), and County of Los Angeles v. Davis, 440 
U.S. 625, 631 (1979). Those cases stand for the proposition that a 
court should be reluctant to conclude that a case is moot where the 
defendant has voluntarily ceased the allegedly illegal conduct, pos­
sibly in order to defeat judicial review. Those cases and the test 
they apply in order to determine whether the plaintiffs continue to 
have a. need for judicial relief are quite inapposite- here. The plain­
tiffs, respondents here, have irrevocably received all the relief they



11

1. There is no “reasonable expectation” or “ demon­
strated probability” that the petitioners will again be 
subjected to the challenged injunctive relief. The layoffs 
of municipal employees announced by the City in May 
1981 were the first such layoffs in the history of Mem­
phis. Pet. App. A73; Pet. App. A8. This fact alone casts 
doubt on any claim that there is a “reasonable expecta­
tion” or “ demonstrated probability” of future layoffs. 
See Illinois State Board of Elections V. Socialist Workers 
Party, swpra, 440 U.S. at 187-88.

Even if Memphis does lay off City employees in the 
future, few if any Fire Department personnel are apt 
to be affected. The Mayor testified that the Fire Depart­
ment was selected for reduction in 1981 because of a 
then-recent study showing that Memphis was devoting 
a much higher percentage of its total budget to fire pro­
tection than other cities of comparable size. J.A. 36-37. 
Now that the City has brought the Fire Department’s 
budget into line, it is unlikely to target its workforce for 
reduction in the future.

Most important, even if firefighters are laid off in the 
future, the petitioners are unlikely to be subjected to 
injunctive relief such as that challenged here. While 
seniority-based layoffs would have had a significantly 
disproportionate effect on black firefighters in May 1981, 
the disproportionate impact of a seniority-based layoff 
policy will dissipate as existing black firefighters gain 
more seniority and other black firefighters are hired or 
promoted pursuant to the consent decree. Thus, given the 
passage of time and even modest progress toward attain­
ment of the goals of the consent decree, “ such extraordi­
nary relief as that contained in the Order here appealed 
* * * will, in all probability, be unnecessary.” Western

requested and they garnered that relief not through the defendants’ 
“voluntary cessation” but by court order. See DeFunis V. Odegaard, 
416 U.S. 312, 318 (1974) (per curiam).



12

Addition Community Organization V. Alioto, 514 F.2d 
542, 544 (9th Cir.) (per curiam), cert, denied, 423 U.S. 
1014 (1975) (a case also involving temporary race­
conscious relief against a fire department).

2. The “ capable of repetition, yet evading review” doc­
trine is limited to controversies that, by their very nature, 
are unlikely to remain alive long enough to be defini­
tively settled by the courts. Richmond Newspapers, Inc. 
V. Virginia, 448 U.S. 555, 563 (1980) (opinion of Bur­
ger, C .J .); Kremens V. Bartley, 431 U.S. 119, 133 
(1977); DeFunis v. Odeganrd, supra, 416 U.S. at 319; 
Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 
126 (1974). The preliminary injunction at issue here is 
not such an inherently transitory order that it would 
typically evade full appellate review.

It was purely fortuitous that all previously laid-off 
employees were restored to their former positions prior 
to this Court’s review of the controversy. The petitions 
for certiorari were filed on August 4, 1982; the last 
demoted or laid-off firefighter was restored to his position 
in June 1983. Only because this Court withheld ruling on 
the petitions pending disposition of Boston Firefighters 
Union, supra, did this controversy become moot prior to 
a decision on the merits by this Court. It was also fortui­
tous that attrition and retirement within the Fire De­
partment permitted recall of all the laid-off employees 
prior to expiration of their 2-year recall rights (J.A. 
88-89), thus mooting the issue of the correctness of the 
injunction. The instant case is moot because of these 
specific circumstances, not because the controversy is 
inherently evasive of review.



13

IL THE PRELIMINARY INJUNCTION WAS AN AP­
PROPRIATE EXERCISE OF THE DISTRICT 
COURT’S INHERENT AUTHORITY TO MODIFY 
A CONSENT DECREE TO EFFECTUATE ITS PUR­
POSE IN LIGHT' OF CHANGED CIRCUMSTANCES

A. The Preliminary Injunction Does Not Rest Upon 
the District Court’s Remedial Authority Under 
Title VII But Rather Upon Its Inherent Authority 
to Modify the Original Consent Decree so as to 
Effectuate Its Basic Purpose

Petitioners and their supporting amici argue at length 
that the preliminary injunction, by awarding race- 
conscious relief to black firefighters who had not estab­
lished that they were individual victims of discrimina­
tion, exceeded the district court’s remedial authority un­
der Title VII, specifically §§ 703(h), 703(j) , and 706(g). 
Their arguments rest on an untenable premise—that if 
authority for issuance of the preliminary injunction 
exists, it necessarily derives from Title VII.

1. This Court has frequently recognized the “ inherent” 
“ power of a court of equity to modify an injunction in 
adaptation to changed conditions though it wras entered 
by consent.”  United States v. Swift & Co., 286 U.S. 106, 
114 (1932). See also Arizona. V. California, 51 U.S.L.W. 
4325, 4330 (U.S. Mar. 30, 1983) ; Pasadena City Bd. 
of Edwc. v. Spangler, 427 U.S. 424, 437 (1976) ; United 
States v. United Shoe Machinery Corp., 391 U.S. 244, 
251 (1968); Chrysler Corp. v. United States, 316 U.S. 
556, 562 (1942). “The source of the power to modify is 
of course the fact that an injunction often requires con­
tinuing supervision by the issuing court and always a 
continuing willingness to apply its powers and processes 
on behalf of the party who obtained that equitable re­
lief.” System Federation No. 91 v. Wright, 364 U.S. 
642, 647 (1961). In this case, authority to modify the 
consent decree was also reserved by its terms. Paragraph 
17 of the decree provides: “ The Court retains jurisdic­
tion of this action for such further orders as may be



14

necessary or appropriate to effectuate the purposes of 
this decree.” Pet. App. A69.

Respondents’ application for a preliminary injunction 
was not based on any allegation that the City’s proposed 
layoffs violated Title VII. It was an appeal to the district 
court’s discretion to effectuate the consent decree. J.A. 
20-22. And the district court proceeded on that under­
standing. For example, the court opened the preliminary 
injunction hearing with the observation that the issue for 
its determination was whether the City’s proposed layoffs 
amounted to changed circumstances that would per­
petuate discrimination which the consent decree was in­
tended to avoid. J.A. 30. Thus, petitioners’ arguments 
regarding the scope of judicial authority to remedy viola­
tions of Title VII misconceive the basis for the district 
court’s ruling.

2. Petitioners and the United States deny the exist­
ence of the district court’s inherent and expressly re­
tained authority to modify the consent decree to ef­
fectuate its purpose. They maintain that the district 
court’s authority to modify the consent decree derives 
solely from the statute that the decree is intended to en­
force, Title VII. In their view, the district court’s reme­
dial authority to issue the preliminary injunction “ is the 
same as if the case had gone to a final, litigated judg­
ment” under Title VII. United States Rr. at 12 & n.13. 
See Union Br. at 20; City Br. at 23. That contention is 
unsupportable.

In its simple form, petitioners’ Title VII argument is 
this: the preliminary injunction violates Title VII be­
cause it grants relief against an employer who has not 
been adjudged to have violated Title VII. Union Br. at 
26; City Br. at 22-23. This contention is wholly without 
merit. It goes without saying that Title VII does not au­
thorize a court to order relief against an employer who 
has not violated Title VII. But the basis for the pre­
liminary injunction was not a new violation of Title V II; 
that injunction was designed to effectuate the basic pur­



pose of the consent decree in light of changed circum­
stances. See Chrysler Corp. v. United States, supra, 316 
U.S. at 562; cf. Wright V. Council of the City of Em­
poria, 407 U.S 451, 459 (1972). This version of peti­
tioners’ argument rests on the notion that a consent 
decree settling a Title VII case can grant no relief to the 
plaintiff unless it contains an admission of liability by 
the defendant. Few if any Title VII cases would be 
settled if that were the law.

In an alternative formulation, petitioners’ Title VII 
argument is that §§ 703(h), 703 (j ), and 706(g) preclude 
a federal court from awarding race-conscious relief 
against an employer who has violated Title VII. In their 
view, the only affirmative relief authorized by Title VII 
is “ rightful place” remediation for proven victims of the 
employer’s discrimination; such identified victims may be 
awarded the backpay and seniority that would have been 
theirs but for the employer’s unlawful discrimination. 
In Part III we show that this is an erroneously restric­
tive view of judicial authority to remedy violations of 
Title VII. But whatever the merit of petitioners’ argu­
ment in a litigated Title VII case, it should not be ac­
cepted as a limitation on the federal court’s inherent au­
thority to approve a consent decree or to modify such a 
decree to achieve its basic purpose.8

8 Contrary to> the majority opinion of the court, of appeals (679 
F.2d at 551-56; Pet. App. A12-A23), the validity of the 1980 con­
sent decree was not put in issue by respondents’ request for a pre>- 
liminary injunction effectuating- that decree-. A request for modifi­
cation of a consent decree, whether by the defendant on the ground 
that continued operation of the decree is inequitable, or by the 
plaintiff on the ground that modification is necessary to effectuate 
the decree’s, basic purpose, provides no warrant for impeaching the 
original decree’s validity. United States V. Swift & Co., 286 U.S. 
106, 119 (1932). See Arizona V. California, 51 U.S.L.W. 4325, 4330 
(U.S. Mar. 30, 1983); Pasadena City Bd. of Educ. V. Spangler, 427 
U.S. 424, 432 (1976) ; Chrysler Corp. V. United States, 316 U.S. 556, 
562 (1942) ; EEOC v. Safeway Stores, Inc., 611 F.2d 795, 799-80 
(10th Cir. 1979). Thus, the validity of the relief contained in the 
consent decree, such as hiring and promotion ratios, is not at issue 
here.

15



16

This Court’s decisions establish that a federal court 
may approve a consent decree or modify a consent decree 
to effectuate its basic purpose without making the specific 
factual determinations that would be necessary to sup­
port the same relief in a litigated case, and without 
stopping to inquire whether the defendant could have 
successfully opposed such relief at trial. Swift & Co. v. 
United States, 276 U.S. 311, 325-27, 329-30 (1928) ; 
United States v. Swift & Co., 286 U.S. 106, 116-117 
(1932) ; Chrysler Corp. v. United States, supra ; Pacific 
R.R. V. Ketchum, 101 U.S. 289, 297 (1880). See also 
Walling v. Miller, 138 F.2d 629 (8th Cir. 1943), cert, 
denied, 321 U.S. 784 (1944).® These principles have fre­
quently been applied in employment discrimination cases. 
E.g., Moore v. City of San Jose, 615 F.2d 1265, 1271-72 
(9th Cir. 1980) ; EEOC v. Safeway Stores, Inc., 611 F,2d 
795, 799 (10th Cir. 1979), cert, denied, 446 U.S. 952 
(1980) ; Airline Stewards & Stewardesses Ass’n, Local 
550 V. American Airlines; Inc., 573 F.2d 960, 963-64 (7th 
Cir.), cert, denied, 439 U.S. 876 (1978); Carson V. 
American Brands, Inc., 654 F.2d 300 (4th Cir. 1981) 
(en banc), adopting 606 F.2d 420, 425, 431 (Winter, J., 9

9 There are of course limitations on a federal court’s inherent 
authority to modify a consent decree to effectuate its purpose. Es­
sentially, these limitations are the same as those that exist on the 
court’s authority to approve a consent decree; if the court, could not 
have lawfully approved the consent decree had it contained the 
proposed modification, the court should not grant the modification. 
There are three such limitations. The court must have subject; mat­
ter jurisdiction over the case. Pacific R.R. v. Ketchum, supra, 101 
U.S. at 297. The parties cannot by consent deprive third parties 
of their substantive rights.. Society Hill Civic Ass’n V. Harris, 632 
F.2d 1045, 1059 (3d Cir. 1980). And there must be no applicable 
statutory restriction on the federal courts’ inherent authority to ap­
prove or modify a consent decree. The district court’s preliminary 
injunction exceeds none of these limitations. It had subject matter 
jurisdiction over the lawsuit. As discussed below, its order does not 
deprive third parties of any substantive rights. See p. 18. And the 
provisions of Title VII relied upon by petitioners do not restrict 
inherent judicial authority to approve or modify a consent decree. 
See pp. 19-20.



17

dissenting). Indeed, the principles apply with special 
force to Title VII cases, for in enacting that title “ Con­
gress expressed a strong preference for encouraging vol­
untary settlement of employment discrimination claims.” 
Carson V. American Brands, Inc., 450 U.S. 79, 88 n.14 
(1981) ; see Alexander v. Gardner-Denver Co., 415 U.S. 
36, 44 (1974).

Thus, the City should not be heard to say that respond­
ents are not victims of discrimination. The original 
Stotts class action was brought on behalf of victims of 
the City’s allegedly discriminatory hiring and promo­
tional practices. J.A. 9-10. Had the case been tried, 
respondents might have established their entitlement to 
backpay, constructive seniority and promotion. But the 
case was settled and the City relinquished its right to 
litigate the issue of discrimination in exchange for avoid­
ing the consequences of a judicial finding of discrimina­
tion and judicial identification of the victims of that dis­
crimination. In short, petitioners’ argument that the 
preliminary injunction exceeded the district court’s reme­
dial authority under Title VII rests on the notion that 
the factual disputes composed by the consent decree must 
now be resolved in their favor.10

10 Nothing in System Federation No. 91 V. Wright, supra, relied 
upon by petitioners, conflicts with the principle that a federal court 
has inherent authority to modify a consent decree to' fulfill its pur­
pose. That case involved a union that, at a time when the Railway 
Labor Act prohibited union shop agreements, acceded to a consent 
decree that prohibited it from entering into' union shop contracts. 
The Railway Labor Act was subsequently amended to permit union 
shop agreements and the union moved for prospective modification 
of the decree to permit it to negotiate for such an agreement. This 
Court held that the requested modification should be granted. The 
Court reasoned that the union’s consent should be “read as di­
rected toward events as they then were” and that continuation of 
the prohibition would be inequitable and inconsistent with the ob­
jectives of the amended Railway Labor Act. 364 U.S. at 647, 651-53. 
Nothing in the Court’s opinion even faintly suggests that a consent 
decree may not be modified to' effectuate its basic purpose' unless the 
court could award such relief in a case litigated to' judgment on the 
same incomplete factual reword.



18

3. Amicus curiae AFL-CIO makes a slightly different 
argument. Brief for AFL-CIO as Amicus Curiae in 
Support of Petitioners at 2-3. The AFL-CIO assumes 
arguendo that a defendant may be able to consent to in­
junctive relief against it that could not have been forced 
upon the defendant in a judgment on the merits, and that 
such a decree may be modified to achieve its purpose. 
But AFL-CIO insists that a defendant’s consent surely 
does not increase the court’s authority to grant relief that 
inflicts injury on non-consenting parties. Id. at 3.

The AFL-CIO’s interesting argument is beside the 
point because the district court’s preliminary injunction 
did not inflict injury ion third parties. That order sim­
ply required the City not to take action that would have 
vitiated the progress attained under the consent decree; 
it certainly did not require the City to lay off white fire­
fighters.11 Indeed, Judge McRae declined to express a 
view on whether the City would be violating the con­
tractual rights of white firefighters if the City chose to 
go forward with the layoffs in the Fire Department. 
Pet. App. A76, A78. Under these circumstances, this 
Court’s decision in W.R. Grace & Co. v. Local Union 759, 
51 U.S.L.W. 4643 (U.S. May 31, 1983), provides the cor­
rect analysis of the situation. When an employer lays off 
white employees instead of black employees who are pro­
tected by a consent decree, the employer is shifting the 
burdens it has assumed to redress prior discrimination to 
its white employees. If such a reallocation abridges the 
rights of the white employees, they should look to the 
employer for relief.12

11 The City was free to forego any layoffs in the Fire Department 
and to reduce expenditures to the extent deemed necessary in other 
ways. For example, the City might have reduced the work week and 
salaries of all firefighters.

12 Concurring Judge Martin made this point. 679 F.2d at 568-69; 
Pet. App. A47-50. The majority opinion of Judge Bailey Brown in 
Brown V. Neeb, 644 F.2d 551, 564-66 (6th Cir. 1981), a case quite 
similar to the instant one, also rests on this basis.



19
4. If Congress expresses an intention to restrict the 

federal court’s inherent authority to modify a consent 
decree to effectuate its basic purpose, that intention must 
no doubt be respected. But there is not a hint of such an 
intention in the provisions of Title VII relied upon by 
petitioners.

Section 703(j) provides that nothing in Title VII shall 
be interpreted to “require” an employer to grant prefer­
ential treatment to any racial group “ on account of” a 
racial imbalance in the employer’s workforce. See Steel­
workers V. Weber, 443 U.S. 193, 205-07 (1979); Team­
sters V. United States, 431 U.S. 324, 374 n.61 (1977). 
This provision does not purport to limit a court’s reme­
dial authority to redress a violation of any substantive 
provision of Title VII. Ass’n Against Discrimination in 
Employment, Inc. v. Bridgeport, 647 F,2d 256, 280-81 
(2d Cir. 1981), cert, denied, 455 U.S. 988 (1982). 
A fortiori, the section cannot be read as limiting a court’s 
inherent authority to modify a consent decree composing 
a dispute arising under Title VII.

Section 703(h) provides that it is not a violation of 
Title VII for an employer to apply a bona fide seniority 
system. See Franks v. Bowman Transp. Co., 424 U.S. 
747, 761 (1976). Like § 703(j ), this provision does not 
limit remedial authority to redress violations of Title VII. 
As this Court has recognized, “ [t] here is no indication in 
the legislative materials that § 703(h) was intended to 
modify or restrict relief otherwise appropriate once an 
illegal discriminatory practice” is found. Id. at 761-62. 
A fortiori, the provision is not a limitation on a court’s 
inherent authority to modify a consent decree.

Section 706(g) is the remedial provision of Title VII. 
It sets forth the judicial remedies available to a plaintiff 
who has established the defendant’s liability under § 703. 
The first sentence of § 706(g) provides for judicial 
remedies “ [ i] f  the court finds that the respondent has 
intentionally engaged in or is intentionally engaging in 
an unlawful employment practice charged in the com­



20

plaint. * * *” 42 U.S.C. § 2000e-5(g). The last sentence 
of § 706(g)— the provision upon which petitioners rely—  
must be read in context as a limitation on the authority 
granted by the first sentence. It provides that “ [n]o order 
of the court shall require” the hiring, reinstatement or 
promotion of an individual, or the payment to him of any 
back pay, “ if such individual * * * was refused employ­
ment or advancement or was suspended or discharged for 
any reason other than discrimination on account of race, 
color, religion, sex, or national origin. * * *” This provi­
sion addresses the case where the plaintiff has established 
a violation of Title VII, but the employer can neverthe­
less defeat judicial relief for that individual by showing 
that the plaintiff would not have received the job, promo­
tion or reinstatement even in the absence of discrimina­
tion—that is, that a lawful reason justified the adverse 
employment decision. Day v. Mathews, 530 F.2d 1083, 
1085 & n.2 (D.C. Cir. 1976) ; Patterson v. Greenwood 
School Dist. 50, 696 F.2d 293, 295 (4th Cir. 1982); King 
V. Laborers In f l Union, Local No. 818, 443 F.2d 273, 
278-79 (6th Cir. 1971). See Brodin, The Standard of 
Causation in the Mixed-Motive Title VII Action: A Social 
Policy Perspective, 82 Colum. L. Rev. 292 (1982). Thus, 
the last sentence of § 706(g) is expressly limited to cases 
where the court finds that the individual suffered the ad­
verse employment decision for a reason other than dis­
crimination. Such a finding, as well as the initial deter­
mination that the employer had violated Title VII, would 
be made only in a Title VII case litigated to judgment. 
The provision accordingly has no application to the 
court’s authority to approve a consent decree settling a 
case, or to the court’s authority to modify a consent 
decree to effectuate its purpose.

B. The District Court Did Not Abuse Its Discretion 
In Issuing the Preliminary Injunction

Having put aside petitioners’ inapposite Title VII 
arguments, it remains to determine whether the district 
court’s preliminary injunction was an appropriate exer-



else of the district court’s inherent authority to modify 
the consent decree.

1. The test for ruling on a plaintiff’s request for modi­
fication of a consent decree is “whether the change 
serve [s] to effectuate * * * the basic purpose of the orig­
inal consent decree.”  Chrysler Cory. v. United States, 316 
U.S. 556, 562 (1942). If unanticipated circumstances 
threaten to prevent the decree from achieving its pur­
pose, the decree should be modified to avoid that frustra­
tion of purpose. Id.; United States v. United Shoe Ma­
chinery Cory., 391 U.S. 244, 248-49 (1968); Columbia 
Artists Management, Inc. v. United States, 381 U.S. 348 
(1965) (per curiam); Liquid Carbonic Cory. v. United 
States, 350 U.S. 869 (1955), rev’g 123 F. Supp. 653 
(E.D.N.Y. 1954); United States v. International Har­
vester Co., 274 U.S. 693, 702-04 (1927).13

Notwithstanding these authorities, petitioners argue 
that a consent decree can be judicially modified only upon 
a “ clear showing of grievous wrong evoked by new and 
unforeseen conditions.” Union Br. at 18 and City Br. at 
18-19, both quoting United States v. Swift & Co., 286 
U.S. 106, 119 (1932). But as this Court made clear 
in United Shoe Machinery Cory., suyra, the “grievous 
wrong” language of Swift must be read in the context of 
Swift’s holding that a decree “may not be changed in 
the interest of the defendants if the purposes of the liti­

21

13 The lower courts apply the test for modification stated in the 
text. E.g., Ass’n Against Discrimination v. Bridgeport, 710 F.2d 69, 
74 (2d Cir. 1983); Brown V. Neeb, 644 F.2d 551, 565 (6th Cir. 
1981); Exxon Corp. v. Texas Motor Exchange, 628 F.2d 500, 503 
(5th Cir. 1980); Evans V. Buchanan, 512 F. Supp. 839, 849 (D.Del. 
1981). The commentators also recognize it. E.g., 11 C. Wright & 
A. Miller, Federal Practice & Procedure § 2961, p. 604 (1973) 
( United Shoe indicates that “modification is proper if the original 
purposes of the injunction are not being fulfilled in any material 
respect” ) ; A. Larson, Employment Discrimination § 54.41, p. 11- 
84.32 (1983) ( “ If the consent decree is not achieving its purpose, 
as indicated by events subsequent to entry of the decree, the plain­
tiff may obtain a modification upon showing the failure of the 
agreed remedy” ).



22
gation as incorporated in the decree * * * have not been 
fully achieved.” 391 U.S. at 248. The “grievous wrong” 
test is not applicable in the obverse situation, where the 
plaintiff seeks modification of a decree to effectuate its 
purpose. Id. at 249-52.14

2. This Court has recognized that “ there must be wide 
discretion in the District Court” to assess whether changed 
circumstances justify modification of a consent decree. 
System Federation No. 91 v. Wright, supra, 364 U.S. at 
648. Such broad discretion is particularly appropriate 
where, as here, a district court does not render a per­
manent, facial modification to a decree but rather grants 
temporary injunctive relief to prevent frustration of a 
decree’s purpose. See 679 F.2d at 678; Pet. App. A46-47 
(Martin, J., concurring) ; Brown v. Neeb, supra, 644 F.2d 
at 565. See generally Brown v. Chote, 411 U.S. 452, 
457 (1973) ; Alabama v. United States, 279 U.S. 229, 231 
(1929).

The task before the district court was to determine 
whether the City’s proposed layoffs would frustrate the 
purpose of the consent decree. Since a consent decree 
represents a compromise, its purposes are those “ em­
bodied in the instrument rather than the maximum 
aspirations— which are bound to be inconsistent anyway 
— of the interested parties.”  White v. Roughton, 689

14 Contrary to petitioners’ contention, the district court’s pre­
liminary injunction is not inconsistent with the rule of United 
States V. Armour & Co., 402 U.S. 673 (1971), United States V. 
Atlantic Refining Co., 360 U.S. 19 (1959), and Hughes V. United 
States, 342 U.S. 353 (1952). Those cases hold that a court should 
not give a consent decree an interpretation that its language cannot 
sustain even if that interpretation would further the purposes of 
one of the parties to the decree. The Court in each of those eases 
reasoned that while “modification could be had after a proper hear­
ing proving the need for such modification under applicable stand­
ards, it would not sanction such modification in the guise of con­
struing a consent decree.” United States V. ITT Continental Bak­
ing Co., 420 U.S. 223, 236 n.9 (1975). The district court’s pre­
liminary injunction was a modification of a consent decree, not an 
interpretation, and it was issued following an appropriate hearing.



23
F.2d 118, 119-20 (7th Cir. 1982), cert, denied, 103 S.Ct. 
1524 (1983). Accord, United States V. Armour & Co., 
402 U.S. 673, 681-82 (1971).

The decree at issue here provides that its purpose is 
“ to insure that any disadvantage to minorities that may 
have resulted from past hiring and promotional practices 
be remedied so that equal employment opportunity will 
be provided to all.” Pet. App. A59-A60. In the same 
vein, the decree states that “ [t]he purpose of this decree 
is to remedy the past hiring and promotion practices of 
the Memphis Fire Department. * * *” Pet. App. A64-65.

Toward these ends, the decree establishes as a long 
term goal the raising of “black representation [in] each 
job classification in the fire department to levels approxi­
mating the black proportion of the civilian labor force in 
Shelby County.” Pet. App. A64. Moreover, “ [t]o insure 
as quickly as practicable the attainment of [this] long 
range goal,” the decree establishes interim race-conscious 
hiring and promotion ratios to be met on an annual basis. 
Pet. App. A64-65. The decree is silent on layoffs, as the 
parties did not anticipate this possibility. Pet. App. A73.

The stated purposes and remedial provisions of the 
decree fully support the district court’s conclusion that 
the decree’s purpose is “hiring and promotion” to over­
come the present and continuing effects of racial dis­
crimination in the Fire Department. Pet. App. A74. 
This purpose is to be achieved by adherence to concrete 
goals and ratios that assure prompt and ongoing correc­
tion of a condition—the extreme underrepresentation of 
blacks— caused by the Department’s former policy of 
racial exclusivity. In sum, as the District Judge who 
entered the decree recognized, it reflects a firm commit­
ment to continuous, incremental progress in eliminating 
the condition of gross discriminatory underrepresentation 
of blacks at all levels of the Fire Department.185 15

15 Though well-supported, this conclusion was necessarily pre­
liminary since the preliminary injunction hearing was not consoli-



24

Judge McRae also reasonably concluded, on the basis 
of the limited record developed at the preliminary injunc­
tion hearing, that the City’s proposed layoffs would vitiate 
that commitment. Pet. App. A74-75. He found that ap­
plication of a seniority-based layoff policy in the Fire 
Department so soon after the City had made modest 
strides in promoting and hiring blacks within the Fire 
Department would frustrate the consent decree’s purpose. 
Pet. App. A73-75. That determination, grounded on find­
ings that are well supported and certainly not clearly 
erroneous, was well within Judge McRae’s discretion. 
Moreover, as the Court of Appeals recognized, the pre­
liminary injunction is also supported by the need to pre­
vent irreparable harm to minority firefighters and by the 
public interest in preserving the progress made in re­
dressing and eliminating discrimination within the Mem­
phis Fire Department. 679 F.2d at 560 ; Pet. App. A31.

III. THE FEDERAL COURTS ARE AUTHORIZED TO 
GRANT RACE-CONSCIOUS AFFIRMATIVE RE­
LIEF UNDER TITLE VII

We have shown that petitioners’ contention that the 
preliminary injunction exceeds the limits of remedial 
authority under Title VII is inapposite because that 
order rests on the district court’s inherent authority to 
modify a consent decree. We now show that petitioners 
are wrong in contending that the remedial provision of 
Title VII, § 706(g), does not authorize race-conscious 
relief.16

dated with trial on the merits, as provided for in Fed.R.Civ.P. 
65(a) (1). Petitioners could have chosen to challenge this conclu­
sion before the district court and could have presented evidence to 
support a contrary view of the decree’s purpose. See United States 
V. ITT Continental Baking Co., supra, 420 U.S. at 238. They opted 
not to do so, and instead appealed the preliminary injunction.

16 Petitioners also rely on § 703(h) and § 703 ( j) ,  but neither of 
those provisions speaks to, much less limits, the judicial remedies 
available to' correct violations of Title VII. See p, 19, supra.



25
The first sentence of § 706(g) confers broad authority 

on the federal courts to remedy unlawful employment 
practices:

“ If the court finds that the respondent has inten­
tionally engaged in or is intentionally engaging in 
an unlawful employment practice charged in the 
complaint, the court may enjoin the respondent from 
engaging in such unlawful employment practice, and 
order such affirmative action as may be appropriate, 
which may include, but is not limited to, reinstate­
ment or hiring of employees, with or without back 
pay * * *, or any other equitable relief as the court 
deems appropriate.”  42 U.S.C. § 2000e-5(g) (em­
phases supplied).

Thus, § 706(g) authorizes such relief as deemed “ ap­
propriate.” Of course, judicial remedial discretion must 
be exercised in conformity with the purposes of Title VII. 
Teamsters v. United States, 431 U.S. 324, 364 (1977); 
Albemarle Paper Co. v. Moody, 422 U.S. 405, 415-18 
(1975). But where an employer has systematically dis­
criminated against blacks in hiring and promotions, race­
conscious relief well serves Title VIPs primary purpose: 
“ to achieve equal employment opportunity and to remove 
the barriers that have operated to favor white male em­
ployees over other employees.” Teamsters v. United 
States, supra, 431 U.S. at 364. In such a case, race­
conscious relief may be essential “to eliminate, so far as 
possible, the last vestiges” of the employer’s discrimina­
tory practices. Albemarle Paper Co. v. Moody, supra, 422 
U.S. at 417.

In the present case, the current effects of discrimina­
tion— the gross underrepresentation of blacks in the Fire 
Department— could not be cured by offering established 
victims of discrimination their “rightful place” in the 
Department. Even if such victims could be identified, 
many will have gone on to other employment and be un­
interested in joining the Fire Department. Moreover, 
when a governmental agency systematically excludes a 
racial minority from employment in all or some of its



26

public jobs, the victims of that discrimination are not 
limited to identifiable members of the minority group 
who actually applied for or were demonstrably deterred 
from applying for the off-limits jobs. Here, the City of 
Memphis had maintained a uniracial firefighting force. 
For this reason, most black Memphians would not even 
have considered firefighting as a possible occupation for 
them. Thus, petitioners’ proposed dichotomy between vic­
tims and non-victims is illusory where the employer’s 
pervasive racial discrimination is manifest. That dichot­
omy, if adopted, would prevent effective redress of mani­
fest discrimination and would lock in the effects of such 
discrimination. For these reasons, the courts of appeals 
are unanimous in recognizing that affirmative race- 
conscious relief such as hiring and promotion goals is 
“appropriate” within the meaning of § 706(g).17 The dis­

17 E.g., Thompson v. Sawyer, 678 F.2d 257, 294 (D.C. Cir. 1982) ; 
Boston Chapter, NAACP V. Beecher, 504 F.2d 1017, 1027-28 (1st 
Cir. 1974), cert, denied, 421 U.S. 910 (1975); Rios V. Enterprise 
Ass’n Steamfitters Local 638, 501 F.2d 622, 629 (2d Cir. 1974); 
EEOC V. A.T.&T. Co., 556 F.2d 167, 174-77 (3d Cir. 1977), cert, 
denied, 438 U.S. 915 (1978); Chisholm V. United States Postal 
Service, 665 F.2d 482, 499 (4th Cir. 1981) ; United States V. City 
of Alexandria, 614 F.2d 1358, 1363-66 (5th Cir. 1980) ; Local 53, 
Int’l Ass’n of Heat & Frost Insulators & Asbestos Wks. V. Vogler, 
407 F.2d 1047, 1055 (5th Cir. 1969); United States V. I.B.E.W., 
Local No. 38, 428 F.2d 144 (6th Cir.), cert, denied, 400 U.S. 943 
(1970) ; United States v. City of Chicago, 663 F.2d 1354 (7th Cir. 
1981) (en banc); Firefighters Inst. v. City of St. Louis, 616 F.2d 
350, 364 (8th Cir. 1980), cert, denied, 452 U.S. 938 (1981); United 
States V. Ironworkers Local 86, 443 F.2d 544, 553-54 (9th Cir.) 
cert, denied, 404 U.S. 984 (1971) ; United States V. Lee Way Motor 
Freight, Inc., 625 F.2d 918, 944 (10th Cir. 1979).

Contrary to the vie-w of the amicus United States, this Court’s 
decisions in Franks V. Bowman Transp. Co., 424 U.S. 747 (1976), 
and Teamsters V. United States, 431 U.S. 324 (1977), are fully con­
sistent with thei unanimous view of the circuits that raee>-conscious 
relief is authorized by Title VII. Franks and Teamsters involved 
the showing that a member of the plaintiff class must make to ob­
tain individual “rightful place” relief such as retroactive seniority. 
They intimate no1 view on race-conscious relief.



27

trict court’s preliminary injunction— which simply pro­
hibited the City from conducting layoffs that would 
vitiate the City’s hiring and promotional commitments 
and did not require the layoff of white firefighters— is 
likewise appropriate.

Contrary to petitioners’ contention, the last sentence of 
§ 706(g) does not withdraw the broad authority to grant 
race-conscious relief conferred by the first sentence. Un­
like the first sentence’s broad authorization of “ any” 
appropriate relief against a respondent found to have 
violated Title VII, the last sentence’s limitation on judi­
cial orders applies only to individual relief: “ No order 
of the court shall require the * * * hiring, reinstatement, 
or promotion of an individual as an employee, if such 
individual was * * * refused employment or advancement 
or was suspended or discharged for any reason other 
than discrimination” in violation of Title VII. By its 
terms, this provision merely precludes a court from 
ordering that a specific individual be hired, promoted or 
reinstated if the employer has refused to hire or pro­
mote that individual, or has discharged him, for non- 
discriminatory reasons. See cases cited p. 20, supra. 
Race-conscious remedies such as those embodied in the 
original consent decree and the preliminary injunction 
effectuating that decree, do not award individual relief. 
They establish ratios and targets for overcoming dis­
crimination. Nothing in the preliminary injunction or 
the consent decree precludes the Fire Department from 
laying off, or declining to promote, any specific black 
firefighter. Thus, those orders are fully consistent with 
§ 706(g). See EEOC v. A.T.&T. Co., 556 F.2d 67, 174-77 
(3d Cir. 1977), cert, denied, 438 U.S. 915 (1978).18

18 The last sentence of § 706(g), with its exclusive focus on in­
dividual relief, may be usefully contrasted with § 703(j ) , which 
provides that Title VII does not “require” an employer “ to grant 
preferential treatment to any individual or to any group”  solely 
because the employer’s workforce is not racially balanced. This



28

The legislative history of Title VII of the Civil Rights 
Act of 1964 confirms that the last sentence of § 706(g) 
was intended merely to make clear that an individual 
who was denied employment opportunities for reasons 
other than discrimination does not have a remedy under 
Title VII. 110 Cong. Rec. 2567 (Feb. 8, 1964) (remarks 
of Rep. Celler, draftsmen of the last sentence of § 706 
( g ) ) ; 110 Cong. Rec. 2568, 2570 (Feb. 8, 1964) (remarks 
of Rep. Gill). Developments subsequent to 1964 only 
strengthen that interpretation of § 706(g).

In the Equal Employment Opportunity Act of 1972, 
Congress extended Title VII to government employees 
and reenacted § 706(g) with amendments.19 86 Stat. 103, 
107 (Mar. 24, 1972). Prior to passage of the 1972 legis­
lation Title VII had been consistently construed as au­
thorizing race-conscious ratios. E.g., United States v. 
Ironworkers Local 86, 443 F.2d 544, 553-54 (9th Cir.), 
cert, denied, 404 U.S. 984 (1971) (requiring admission 
of specific percentages of minorities to apprenticeship 
programs) ; Local 58, Int’l Ass’n of Heat & Frost In­
sulators & Asbestos Workers V. Vogler, 407 F.2d 1047, 
1055 (5th Cir. 1969) (requiring union referral of one 
black worker for each white worker). In re-enacting

shows that if Congress had intended to proscribe race-conscious 
remedies that benefit a group, it would have expressly said so. 
Moreover, §703(j), in providing that Title VII does not require 
group preferences solely to redress racial imbalance, strongly sug­
gests that race-conscious relief is available to- remedy independent 
violations of Title VII. See Steelworkers v. Weber, 443 U.S. 193, 
205-06 (1979).

19 Specifically, § 706(g) was amended to clarify that “affirmative” 
relief is “not limited to” orders granting backpay and reinstate­
ment, to make clear that a court may award “other equitable relief” 
that it deems appropriate, and to specify an accrual date for back­
pay. 86 Stat. 103, 107. This expansion of the remedial language in 
§ 706(g) is additional proof that Congress did not intend to limit 
affirmative relief to individual “rightful place” relief.



29

§ 706(g), Congress ratified the prevailing judicial inter­
pretation of that provision. Lorillard v. Pons, 434 U.S. 
575, 580-81 (1978). Indeed, a section-by-section analysis 
accompanying the final version of the bill stated: “ In any 
area where the new law does not address itself, or in any 
areas where a specific contrary intention is not indicated, 
it was assumed that the present case law as developed by 
the courts would continue to govern the applicability and 
construction of Title VII.” Subeomm. on Labor of the 
Senate Comm, on Labor and Public Welfare, Legislative 
History of the Equal Employment Opportunity Act of 
1972 (“ 1972 Leg. Hist.” ), p. 1844. Moreover, Congress 
rejected an amendment designed to overturn the prevail­
ing judicial interpretation that Title VII authorized 
quota relief.20

Thus, Congress, in re-enacting and amending Title VII 
in 1972, expressly endorsed the prevailing judicial view 
that the remedial authority conferred by 1 706(g) en­
compasses race-conscious affirmative action that may 
benefit persons who are not proven victims of discrimina­
tion. United States V. In f l Union of Elevator Construc­
tors Local Union No. 5, 538 F.2d 1012, 1019-20 (3d Cir. 
1976); United States V. IBEW, Local No. 212, 472 F.2d 
634, 636 (6th Cir. 1973); see Regents of the University 
of California v. Bakke, 438 U.S. 265, 353 n.28 (1978) 
(opinion of Brennan, White, Marshall & Blackmun, JJ.)

20 Senator Ervin proposed an amendment providing that no agency 
or officer of the federal government shall require an employer 
to hire persons of a particular race “ in either fixed or variable 
numbers, proportions, percentages, quotas, goals, or ranges.” 118 
Cong. Eec. 1662 (Jan. 27, 1972), reprinted in 1972 Leg. Hist, at 
1039. Senators Javits and Williams spoke against the Ervin 
amendment, arguing that the amendment would even deprive the 
courts of power to> remedy cases of proven discrimination under 
Title VII. Id. at 1071 (remarks of Sen. Javits); id. at 1072 (re>- 
marks of Sen. Williams). The amendment was defeated by a vote 
of 44 to 22. Id. at 1074.



30

( “ [ejxecutive, judicial, and congressional action subse­
quent to the passage of Title VII conclusively established 
that the Title did not bar the remedial use of race” ).21

CONCLUSION

For the reasons stated in Part I, the judgment of the 
court of appeals should be vacated and the case remanded 
with directions to dismiss as moot. Should this Court 
reach the merits, the judgment o f the court of appeals 
should be affirmed.

Respectfully submitted,

Fred N. F ishman  
Robert H. Kapp 

Co-Chairmen 
W illiam L. Robinson 

Lawyers’ Committee for 
Civil Rights Under Law  

733 15th Street, N.W. 
Washington, D.C. 20005 
(202) 682-6700

Richard M. Sharp *
Jeffrey C. Martin 
David M. Brenner 

Shea & Gardner 
1800 Massachusetts Ave., N.W. 
Washington, D.C. 20036 
(202) 828-2000

Attorneys for Amicus Curiae 
Lawyers’ Committee for Civil Rights Under Law

October 24, 1983 * Counsel of Record

21 Steelworkers v. Weber, 443 U.S. 193 (1979), holds that an em­
ployer may voluntarily implement remedial racial ratios without 
violating Title VII’s prohibition against racial discrimination. In 
light of that holding, it would indeed be anomalous to hold that 
Title VII prohibits federal courts from granting race-conscious 
relief for proven violations of the title. The district court in Weber 
had disallowed the voluntary quota system because “ the courts 
alone are in a position to afford due process to all concerned in 
determining the necessity for and in fashioning such relief.” 415 
F. Supp. 761, 767-68, aff’d, 563 F.2d 216 (5th Cir. 1977), rev’d, 
443 U.S. 193 (1979).