Bushey v The New York State Civil Service Commission Brief of Defendant-Intervenor
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April 22, 1985

49 pages
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Brief Collection, LDF Court Filings. Bushey v The New York State Civil Service Commission Brief of Defendant-Intervenor, 1985. 29601531-b79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e97fb29c-2d33-45c5-9505-8e3a06acc9ab/bushey-v-the-new-york-state-civil-service-commission-brief-of-defendant-intervenor. Accessed June 17, 2025.
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85-7259 IN THE UNITED STATES COURT OP APPEALS POR THE SECOND CIRCUIT Nos. 85-7259 85- JAM ES BUSHEY, ROGER D. BELL, ROBERT W. BERBER, WILLIAM J. NORTON, ROBERT J. SEITZ, GEORGE BARTLETT, CHARGES PAGE, WAYNE WILHELM, WAYNE L. STRACK, ROBERT FUCCI, GARY H. FILION, EDWARD D. ROGAN, MILES BARNES, DONALD E. CLARK and GERALD SWEPNEY, each 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 OP 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 P. LEATH, Defendant-Intervenor-Appellant. BRIEF OP DEFENDANT-INTERVENOR GLENDA P. LEATH TABLE OF CONTENTS PRELIMINARY STATEMENT ............................... 2 QUESTIONS PRESENTED ................................. 3 STATEMENT OF THE CASE ............................... 4 STATEMENT OF THE FACTS................................ 6 A. The 1982 Examination ....................... 7 B. The Kirkland Complaint and Settlement Agreement .................................. 7 C. The Bushey Litigation ................... 8 D. The 1983 Selection Procedure .............. 10 E. The Bushey Plaintiffs' Attempts to Enjoin the Kirkland List ...................... 11 F. The Decision Below ......................... 11 SUMMARY OF ARGUMENT................................... 13 ARGUMENT I. The Preliminary Injunction Illegally Interfers with Implementation of the Kirkland Settlement Agreement............................. 15 A. A Federal District Court Does Not Have Juris diction to Interpret or Enjoin a Consent De cree Entered by Another District Court.... 15 B. The Kirkland Settlement Agreement Requires that the Kirkland List Be Used in Making Appointments................................ 18 II. The Requirements for Issuance of a Preliminary Injunction Are Not Satisfied ........................................ 23 A. The Northern District Misapplied the Stand ards Governing Issuance of a Preliminary Injunction ................................. 24 Page i Page B. Because Plaintiffs' Claims Are Moot and the Wells Internors Have Asserted No Claim, Neither Party Can Established a Likelihood of Success on the Merits ................. 25 1. A preliminary injunction must relate to a remedy that the moving party can expect to obtain .................... 25 2. Title VII prohibits appointments on the basis of the unadjusted scores on the 1982 examination ................ 27 3. Plaintiffs' claims for injunctive relief are moot....................... 29 4. The Wells intervenors will be entitled to no relief in the event that defend ants prevail.......................... 30 C. The Northern District Erred in Finding Irrepar able Harm .................................. 32 1. The All Writs Act does not authorize issuance of an injunction in this case................................... 32 2. Temporary loss of income and position does not constitute irreparable harm .................................. 33 D. The Balance of Hardships Does Not Tip Decidedly Toward Plaintiffs or the Wells Intervenors .......................... 36 E. The Public Interest Mandates Denial of the Injunction .......................... 37 III. The Injunction Is Not Narrowly Tailored to Serve the Purpose Identified by the District Court .................................. 33 CONCLUSION ............................................ 41 - ii - TABLE OF AUTHORITIES Cases Pa9e Albemarle Paper Co. v. Moody, 422 U.S. 405 ( 1975) .................................. 28 Aviation Consumer Action Project v. Washburn, 535 F.2d 101 (D.C. Cir. 1 976) ........................................ 39 Bell & Howell: Mamiya Co. v. Masel Supply Co., 719 F. 2d 42 (2d Cir. 1 983) ................. 24,25 Berkman v. City of New York, 705 F .2d 584 (2d Cir. 1983) .............................. 27,29 Black & White Children v. School District, 464 F . 2d 1030 (6th Cir. 1972) .............. 16 Burns v. Board of School Commissioners, 437 F . 2d 1 143 (7th Cir. 1971 ) ................. 16 Bushey v. New York State Civil Serv. Comm'n, 571 F. Supp. 1562 (N.D.N.Y. 1983), rev'd, 733 F .2d 220 (1984), cert, denied, 53 U.S.L.W. 3477 (Jan. 8, 1985) ......................... passim Canal Authority v. Callaway, 489 F.2d 567 (5th Cir. 1974) ............................. 25 Connecticut v. Teal, 457 U.S. 440 (1982) ....... 27 Consolidation Coal Co. v. Disabled Miners, 442 F .2d 1261 (4th Cir.), cert, denied 404 U.S. 91 1 ( 1971 ) ......................... 38,39 Continental Illinois Nat'1 Bank v. Chicago R. I. & P.R.R. Co., 294 U.S. 648 ( 1 935) .................................. 32 - iii - Page Cuesta v. State of New York Office of Court Administration, 571 F.Supp. 392 (S.D.N.Y. 1983) ....................... 16,26 34,35,39 Culbreath v. Dukakis, 630 F •2d 15 (1st Cir. 1980) ........................................ Davis v. Romney, 490 F .2d 1360 (3d Cir. 1974) ........................................ Dennison v. City of Los Angeles, 658 F .2d 694 (9th Cir. 1981) ............................. Edgerton v. New York State Civil Service Commission, 84 A.D. 2d 881, 444 N.Y.S. 2d 731 (3d Dept. 1981 ) ..................... EEOC v. Local 638, 532 F .2d 821 (2d Cir. 1976) ........................................ EEOC v. McCall Printing Corp., 633 F .2d 1232 (6th Cir. 1980) ............................. Florida Medical Ass'n v. U.S. Dept, of Health, Education & Welfare, 601 F .2d 199 (5th Cir. 1979) ............................ F.T.C. v. Dean Foods Co., 384 U.S. 597 (1966) ...................................... Grann v. City of Madison, 738 F . 2d 786 (7th Cir. 1984), cert. denied, 105 S.Ct. 296 (1984) .................................. Grant v. Bethlehem Steel Corp., 635 F .2d 1007 (2d Cir. 1980), cert. denied 452 U.S. 940 ( 198 1 ) ........................ Griggs v. Duke Power Co., 401 U.S. 424 (1971) ... Guardians Ass'n of New York City v. Civil Service Comm'n, 630 F.2d 79 (2d Cir. 1980), cert, denied, 452 U.S. 940 (1981) ...................................... 16 39 16 7 27 16 32 32,33 16 28 27 27,29,30 Page Holt v. Continental Group, Inc., 708 F .2d 87 (2d Cir. 1983), cert, denied, 104 S. Ct. 1 294 ( 1984) ..................... 35 ITT Community Development Corp. v. Barton, 569 F . 2d 1351 (5th Cir. 1978) .............. 33,34 Jack Kahn Music Co. v. Baldwin Piano & Organ Co., 604 F.2d 755 (2d Cir. 1979) ........... 23,36 Kirkland v. New York State Department of Correctional Services, 552 F.Supp. 667 (S.D.N.Y. 1982), aff'd, 711 F .2d 1117 (2d Cir. 1983), cert, denied, 104 S.Ct. 997 (1984) ...................... (passim) Kirkland v. New York State Department of Correctional Services, 374 F. Supp. 1361 (S.D.N.Y. 1974), aff'd in part, rev 1d in part, 5 20 F .23 420 (2d Cir. 1975), cert, denied, 429 U.S. 823 (1976), on remand, 482 F. Supp. 1179 (S.D.N.Y.), aff'd, 628 F .2d 796 (2d Cir. 1980), cert, denied, 450 U.S. 980 ( 1981 ) ........................ 2 McDonnell Douglas Corp. v. Green, 411 U.S. 792 ( 1973).................................. 28 New York State Ass'n For Retarded Children, Inc. v. Carey, 596 F.2d 27 (2d Cir. cert, denied, 444 U.S. 836 (1979) ...... 22 Prate v. Freedman, 430 F.Supp. 1373 (W.D.N.Y. 1977) , aff'd without opinion, 573 F . 2d 1 294 (2d Cir. 1977), cert. denied, 436 U.S. 922 ( 1978) .......................... 16,17,18 Prate v. Freedman, 583 F .2d 42 (2d Cir. 1978) 16,17 Rogers v. Schurr, 676 F.2d 1211 (8th Cir. 1982) 38 Sampson v. Murray, 415 U.S. 61 (1974) ........... 14,34,35 Schurr v. Austin Galleries of Illinois, Inc., 719 F. 2d 571 (2d Cir. 1983) ............... 22 Society For Goodwil To Retarded Children, Inc. v. Cuomo, 737 F .2d 1239 (2d Cir. 1984) .... 38 v Page Standard & Poor's Corp. v. Commodity Exchange, Inc., 683 F .2d 704 (2d Cir. 1982) 24 Stenberg v. Checker Oil Co., 573 F. 2d 921 (6t'n Cir. 1978) 39 Subway Newsdealers Corp. v. Metropolitan Transportation Authority, 563 F.Supp. 319 (S.D.N.Y. 1983) 26 Thaggard v. City of Jackson, 687 F .2d 66 (5th Cir. 1982), cert, denied, 104 S. Ct. 255 ( 1 983) 16,17,18 United States v. ITT Continental Baking Co., 420 U.S. 233 ( 1975) 22 United Steelworkers of America v. Weber, 443 U.S. 193 ( 1979) ......................... 10 Vulcan Society of New York City Fire Dept., Inc. v. Civil Service Comm'n, 490 F.2d 387 (2d Cir. 1973) 27 Statutes All Writs Act, 28 U.S.C. § 1651 ................. 13,32,33 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.............. 2 Other Authorities * 11 Fed. Rule Civil Proc. 52(a) ..................... 12 Fed. Rule Civil Proc. 65 ......................... 32,40 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice 1| 1 1 0.29 ( 1983) ................... 33 11 C. Wright & A. Miller, Federal Practice and Procedure, §§ 2948 ( 1972 & 1983) .......... 24 # vi IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Nos. 85-7259 85- I JANES BUSHEY, ROGER D. BELL, ROBERT W. FERBER, WILLIAM J. NORTON, ROBERT J. SEITZ, GEORGE BARTLETT, CHARGES PAGE, WAYNE WILHELM, WAYNE L. STRACK, ROBERT FUCCI, GARY H. FILION, EDWARD D. ROGAN, MILES BARNES, DONALD E. CLARK and GERALD SWEENEY, each individually and on behalf of all others similarly situated, I f f a-Ar>Dellees . -against- THE NEW YORK STATE CIVIL SERVICE COMMISSION; JOSEPH VALENTI, in his capacity as President of the New York State Civil Service c°"™*ssion 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 BATES, THOMAS D. , WILBUR I. WRIGHT, JOSEPH P. HASKELL and PERCY JONES, Defendant-Intervenors-Appellees, GLENDA F. LEATH, Defendant-Intervenor-Appellant. PRELIMINARY STATEMENT This appeal represents another chapter in the continuing effort to assure that promotions within the New York State Department of Correctional Services are made in compliance with Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et sea. Appellant Glenda F. Leath is a black employee of the Corrections Department and a member of the plaintiff class in the case of Kirkland v. New York State Department of Correctional Services, 552 F. Supp. 667 (S.D.N.Y. 1982), aff'd, 711 F. 2d 1117 (2d Cir. 1983), cert, denied, 104 S.Ct. 997 (1984). Leath intervened in the proceeding below (the Bushey case) in order to oppose an injunction against use of a new eligibility list for promotion to Correction Captain. The new list (Kirkland list) was the result of a new selection procedure that was mandated by the Settlement Agreement in the Kirkland case. Leath holds a high position on the Kirkland list. Intervenor Leath brings this appeal from an order of the United States District Court for the Northern District of New York, the Honorable Roger J. Miner, which enjoined defendants- The Kirkland case challenged procedures for promotion to the positions of Correction Lieutenant and Captain. An earlier case also brought by Edward Kirkland successfully challenged proce dures used to promote to the position of Correction Sergeant. Kirkland v. New York State Department of Correctional Services, ^74 P. finpp- 1361 fS.D.N.Y 1974), aff'd in part, rev'd in part, 520 F.2d 420 (2d Cir. 1975), cert, denied, 429 U.S. 823 (1976), on remand, 482 F. Supp. 1179 (S.D.N.Y.), aff'd, 628 F.2d 796 (2d Cir. 1980) , cert, denied, 450 U.S. 980 (1981). 2 appellants from making permanent appointments to the position of Correction Captain on the basis of the Kirkland list. The Northern District entered the injunction even though the under lying controversy in this case concerns the legality of the previous eligible list which has never been used, and which defendants have no intent of ever using to make appointments. Intervenor Leath respectfully submits that the preliminary injunction should be vacated and that the parties claims for injunctive relief should be dismissed as moot. QUESTIONS PRESENTED 1. Whether the District Court for the Northern District of New York acted improperly in enjoining implementation of a consent decree approved by the District Court for the Southern District of New York and upheld by this Court? 2. Whether the plaintiffs' claims for injunctive relief are moot in view of the fact that the eligible list which they challenge was never used in making appoint ments and has now been superseded by a new list? 3. Whether the District Court erred in determining that the criteria for issuance of a preliminary injunction are satisfied in this case? 4. Whether the injunction issued by the District Court was overbroad where more than 50 appointments were enjoined 3 in order to preserve vacancies for at most 13 indivi duals? 2 3 Plaintiffs STATEMENT OF THE CASE are 13 white correction employees who took a ̂ The following forms of citations are used frequently in this brief. "JA. " Two volume Joint Appendix "ADD. ___"Addendum to Brief ̂ For the convenience of the Court, the list below summarizes the various parties, tests, eligible lists and courts involved in the Bushey and Kirkland cases, and sets out the shorthand terminology used to refer to each: Plaintiffs — Appellees here, plaintiffs in the Bushey case; 13 white correction employees Defendants — Appellees here, defendants in both the ̂ Bushey and Kirkland cases; the New York State Civil Service Commission, the New York State Department of Correctional Services and various state officers Wells Intervenors — Appellees here, five black correction employees who are on the Bushey list, and who intervened as defendants in the Bushey litigation Intervenor Leath — Appellant here, a black correction employee who is a member of the plaintiff class certified in the Kirkland case and who was permitted to intervene in the Bushey case for the purpose of opposing the preliminary injunction now at issue Kirkland plaintiffs or Kirkland class — _A group of minority correct ion employees whose lawsuit resulted in a Settlement Agreement requiring development of a new selection procedure for the position of correction captain 1982 examination — Examination for the position of correction captain given on January 30, 1982, and challenged in both the Bushey and Kirkland cases Bushey list -- Eligible List No. 37-526, which resulted from the 1 982 examination, was published in September 1982 and which reflected the score adjustments challenged by the plaintiffs 4 1982 Civil Service examination for the position of Correction Captain. Plaintiffs commenced this action in the Northern District of New York on November 2, 1982, alleging that defen dants' scoring of the 1982 examination violated Title VII. JA. 51 - 7 6 . On November 4, 1982, plaintiffs and defendants entered into a Stipulation agreeing that defendants had not made and would not make permanent appointments from the eligible list that reflected the score adjustments, until further order of the Court. JA. 128. Gerald A. Wells and four other individuals (Wells interve- nors) were permitted to intervene as defendants pursuant to an Order entered on February 16, 1983. JA 147. On October 3, 1983, the Northern District granted summary judgment in favor of the white plaintiffs and enjoined defendants from making appointments to the position of Captain on the basis of the Bushey list. Bushey v. New York State Civil Service Comm1n ., 571 F. Supp. 1 562 . This Court reversed and remanded. 1983 Selection Procedure — Selection procedure for the position of correction captain given in Winter 1983-84. This selection procedure was developed and administered pursuant to the Kirkland Settlement Agreement Kirkland List — Eligible List No. 38-093, which resulted^from the 1983 selection procedure, was published on December 31 , 1984, and was enjoined by the Northern District in the Order challenged here. Northern District — United States District Court^ for the Northern District of New York, Roger J. Miner, J.; presides over the Bushey case Southern District — United States District Court for the Southern District of New York, Thomas P. Griesa, J.; presides over the Kirkland case. 5 733 F.2d 220 (1984). On December 31, 1984, defendants published a new eligible list for the position of Correction Captain, thus revoking the Bushey list. JA 525. This Kirkland list was the result of a selection procedure mandated by the Settlement Agreement in the Kirkland case, JA. 524-25. On January 7, 1985, the Wells inter- venors filed an order to show cause seeking immediate appoint ments from the revoked Bushey list. JA. 509. On January 11, 1985, the District Court orally denied this request, but entered a temporary restraining order prohibiting appointments from the Kirkland list. On January 25, 1985, the District Court orally granted the motion of appellant Glenda F. Leath to intervene for the limited purpose of opposing an injunction against appoint ments from the Kirkland list. JA. 897. The Court then orally made findings of fact and entered a preliminary injunction prohibiting defendants from making appointments from the Kirkland list. JA. 390—94. intervenor Leath moved for reconsideration and the Court adhered to its earlier determination. JA 924. STATEMENT OF THE FACTS Because this appeal involves an order of the Northern District of New York that enjoins implementation of a decree entered by the Southern District of New York, the facts in both the proceedings below in the Northern District and in the Kirkland case in the Southern District are relevant to the issues raised. The discussion below sets out the facts in roughly chronological order. 6 A The 1982 Examination On January 30, 1982, defendant Civil Service Commission administered an examination for the position of Correction Captain (1982 examination). The 1982 examination was developed hastily to comply with a state court order that a Captain's examination be given within 60 days. See Edaerton v. New York State Civil Sevice Commission, 84 A.D. 2d 881, 444 N.Y.S. 2d 731 (3d Dept. 1981). The State defendants, the parties responsible for development of the 1982 examination, have taken the position that it cannot be shown to be job-related. JA. 910-11. B. The Kirkland Complaint and Settlement Agreement The Kirkland case was filed in the Southern District on January 15, 1982, on behalf of a class of minority correction employees. ADD. 1. Although the 1982 examination had not yet been given, the Kirkland plaintiffs claimed that if given on schedule, the examination would violate Title VII because minority candidates were illegally excluded from the pool of candidates eligible to 4 take the 1982 examination. JA. 696 ; ADD. 6 . The Southern The Kirkland case also involved a challenge to a 1981 Lieute nant TT'examination. Under defendants' procedures, only indivi duals who held the position of Correction Lieutenant were eligible to take the Captain's examination. Plaintiffs alleged that the 1982 Captain's examination was illegal because appoint ments made from the 1981 Lieutenant's examination determined who would be eligible to sit for the 1982 Captain's examination. See Kirkland, 711 F.2d at 1123 n. 8. 7 District declined to rule on the Kirkland plaintiffs' motion for a preliminary injunction to enjoin administration of the 1982 examination, and it was given on schedule. A Settlement Agreement in the Kirkland case was signed in August 1982. Kirkland, 711 F.2d at 1123. At that time, the 1982 examination had been given but not scored. After a hearing at which white employees were permitted to participate as inter- venors, the Settlement Agreement was approved by the Southern District on November 9, 1 982. Kirkland, 552 F. Supp. 667. The white intervenors appealed and this Court upheld the Settlement. 711 F.2d 1117. The Kirkland Settlement Agreement requires defendants to develop and administer a new selection procedure for the position of Corrrection Captain. JA. 705 (Stip. Settlement Art. VI ) . The new procedure is to be consistent with professionally accepted employment selection measures and to eliminate or minimize adverse impact on minority employees. JA. 699, 709 (Stip. Settlement Art. I, 1 11, Art. VI, U 7). C. The Bushey Litigation While the Kirkland settlement was being negotiated, defen dants were in the process of scoring the 1 982 examination. Defendants decided to adjust the scores using a statistical technique known as separate frequency distribution. See Bushey, 733 F .2d at 222-23. Defendants made the score adjustment in order to avoid litigation that theyassumed minority candidates would bring if the adverse impact of the examination were not 8 eliminated. 733 F.2d at 223. The results of the 1982 examina tion, reflecting the score adjustment, were published in early September, 1982, as Eligible List No. 37-526. On November 2, 1982 fifteen white candidates brought the Bushey case in the Northern District, alleging that the score adjustment discrimi nated against white candidates, j a . 52. In February, 1983, the Wells intervenors, five minority individuals on the Bushey list, were permitted to invervene as defendants in the Bushey case for the purpose of defending the score adjustments made by the State defendants. JA. 147. The scores of the Wells intervenors were improved by the score adjustment.^ The Northern District granted summary judgment in favor of the white plaintiffs on October 3, 1983. 571 F. Supp. 1562. This Court reversed on April 16, 1984. 733 F.2d 220. This Court con cluded that the test scores established a prima facie case of adverse impact against minority candidates, 733 F. 2d at 224-26, and that an employer is not required to show that an examination is invalid and non —job —re 1 ated before taking remedial steps to eliminate the adverse impact. 733 F.2d at 226-28. The Court 5 6 5 Two of the original 15 plaintiffs were dismissed because they failed the 1982 examination and lacked standing. 571 F. Supp. 1580. 6 See JA.659-68 (setting out scores with and without adjustment). 9 remanded for a determination whether Hispanic candidates should have been included in the minority group for purposes of the score adjustments, 733 F.2d at 226, and whether the adjustment plan "'unnecessarily trammelled] the interests of nonminority employees,'" 733 F.2d at 228 (quoting United Steelworkers of America v. Weber, 443 U.S. 193, 208 (1979)). D. The 1983 Selection Procedure While the Bushey litigation was pending, defendants com menced implementation of the Kirkland Settlement by developing a new selection procedure for the position of Correction Captain. This procedure was given in winter 1983-84 (1983 selection procedure). JA. 525. The 1983 selection procedure was developed with outside expert professional assistance according to pro fessional standards. Measures were taken to minimize the adverse impact on minority employees. JA. 709. On May 17, 1984, defen dants gave written notice to the parties in the Bu_sh_ev case that the 1983 selection procedure was being scored and that the new list, when published, would supersede the Bushey list. JA. 653. That notice was repeated in September and November, 1984. ADD. 33, 39. On December 31, 1984, the results of the 1983 selection procedure were published as Eligible List No. 38-093 (Kirkland list). JA. 525. The number of minorities who took and passed this procedure is much larger than is the case with the 1982 examination. ADD. 30-32. The 1983 selection procedure had at 10 all score levels a much lower adverse impact on minorities than the 1982 examination. ADD. 31-32. Defendants have made no permanent appointments to the position of Correction Captain for at least six years. JA. 686. At the time the Kirkland list was published there were approxi mately 50 Captain's vacancies that would have been filled immediately from the Kirk1 and list. JA. 660. Additional vacan cies have arisen and are expected to arise in the near future. JA 501 . E. The Bushev Paintiffs' Attempts to Enjoin the Kirkland List At an off-the-record conference on December 13, 1984, plaintiffs in the Bushey case sought permission to intervene in the Kirkland case in order to seek a preliminary injunction against use of the Kirkland list. The Southern District declined to hear the motion or to accept the papers for filing. JA. 530 , 636-37. The Bushey plaintiffs did not appeal this action by the Southern District, but instead wrote a letter purporting to describe what was said at the conference. JA.544. Defendants and intervenor Leath dispute the accuracy of this description. JA. 636-37; ADD. 26, 41. P. The Decision Below Immediately after publication of the Kirkland list, the Wells intervenors renewed their motion in the Bushey litigation for immediate appointments from the Bushey list. JA. 509. At a hearing on January 11, 1985, the Northern District denied this request on the ground that the legality of appointments from the Bushey list was the subject of the litigation and the Court had not yet decided that issue. JA. 595, 616. However, the Court entered a temporary restraining order prohibiting appointments from the Kirkland list. JA 616. The Court also ordered the parties to show cause why a preliminary injunction should not enter. JA. 616. Glenda F. Leath then moved to intervene in order to oppose the preliminary injunction. JA. 626. Intervenor Leath is a member of the Kirkland class who holds a high position on the Kirkland list. JA. 628-29. In the absence of the injunction, Leath would have had a substantial likelihood of an immediate promotion and a very high chance of promotion within a year. JA. 629. Other members of the Kirkland class who scored well on the new examination also are currently being deprived of promotion opportunities because of the preliminary injunction. JA. 629. At the show cause hearing on January 25, 1985, the Northern District granted Leath's request to intervene and then entered a preliminary injunction prohibiting defendants from using the Kirkland list to make permanent appointments to the position of Correction Captain. The Court orally made its Rule 52(a) findings on the record. JA. 890. The Northern District concluded that it was unnecessary to decide whether plaintiffs had established a likelihood of success on the merits, since plaintiffs and the Wells intervenors had taken opposing positions and one side must necessarily prevail on the question whether the 1982 examination was scored properly. JA. 892. 12 The Court relied on the All Writs Act, 28 U.S.C. § 1651/ in finding that plaintiffs would suffer irreparable harm in the absence of the injunction. The Court concluded that "failure to enjoin use of the Kirkland list might well moot the lawsuit itself" and that "plaintiffs stand to be irreparably injured by losing their right to judicial review." JA. 891-92. The balance of hardships was found to tip toward both plaintiffs and the Wells intervenors who were seeking promotion, as opposed to the State defendants who would suffer admini strative convenience. JA 892-93. Finally, the Court concluded that the injunction would not interfere with the Kirkland Settlement, because the "consent decree ... is entirely silent as to a specific method of select ing Captains in the future." JA. 893. SUMMARY OF ARGUMENT The Northern District committed several fundamental errors in enjoining appointments from the Kirkland list. First, the Court did not have jurisdiction to entertain any motion that necessarily involved interpreting the meaning and scope of the Kirkland consent judgment. Any action that involves interpre tation of a consent judgment must be brought before the court that entered the judgment . (Point I.A.) Moreover, as shown in Point I.B., the Northern District’s conclusion that the Kirkland Settlement Agreement is "entirely silent on the method of appointment of future captains is clearly incorrect. 13 Even without regard to the Kirkland consent judgment, the standards for issuance of a preliminary injunction are not satisfied. The underlying controversy in this case is over the legality of the scoring of an examination that has never been used and that the defendant employer has revoked and does not intend to use. Because the Bushey list has been revoked and superseded, plaintiffs' claims concerning its scoring are moot. Plaintiffs have no right to compel defendants to use an eligible list which has never been used and which is the result of an invalid examination that produced an adverse impact on minority candidates. (Point II. B) Similarly, the Wells intervenors, who have asserted no claim against any party, have no legal right to compel defendants to utilize the Bushey list. (Point II. B. 4) Furthermore, neither the plaintiffs nor the Wells interve nors have shown that irreparable harm will result if the pre liminary injunction is vacated. Temporary loss of status and income does not constitute irreparable injury. Sampson v. Murray, 415 U.S. 61, 88-92 (1974). The District Court erroneous ly relied upon the All Writs Act to supply irreparable injury. (Point II. C) The balance of the hardships clearly favors denial of the injunction. If it is ultimately determined that one or more of the plaintiffs or the Wells intervenors is entitled to appoint ment, he can be compensated with backpay and retroactive seniority. By contrast, it is unlikely that intervenor Leath and the other Kirkland class members can obtain backpay for the delay in their appointments caused by this injunction. (Point II. D. ) The public interest also mandates that an examination that 14 was professionally developed pursuant to a consent settlement and that has only a slight adverse impact on minority candidates be used over an examination that is of doubtful validity, that produced a substantial adverse impact on minorities and that has been challenged from all sides. (Point II. E.) Finally, even assuming that one or more of the plaintiffs or the Wells intervenors might be entitled to preliminary relief, an injunction against more than 50 appointments in order to preserve vacancies for at most 13 individuals is overbroad. (Point III.) ARGUMENT I. The Preliminary Injunction Illegally Interferes With Implementation of the Kirkland Settlement Agreement Intervenor Leath is a member of the Kirkland class who holds a high position on the list produced as a part of the Kirkland Settlement Agreement. The preliminary injuction entered by the Northern District illegally denies Leath and other members of the Kirkland class the opportunity to be appointed from the Kirkland 1 1 ist. A. A Federal District Court Does Not Have Jurisdiction to Interpret or Enjoin a Consent Decree Entered by Another District Court ____________________________________ ______ The Kirkland Southern District, review by the United legality of the 1983 Settlement Agreement was approved by the upheld on appeal by this Court and denied States Supreme Court. No challenge to the selection procedure or the Kirkland list has 15 been filed in the Southern District. Instead, the plaintiffs have persuaded the Northern District in a separate proceeding to enjoin implementation of the Kirkland decree. It is well-settled that an employment discrimination consent decree ordering race-conscious relief is not subject to col lateral attack. E,g., Grann v. City of Madison, 738 F.2d 786, 794-96 (7th Cir. 1984), cert, denied, 105 S.Ct. 296 (1984); Thaggard v. City of Jackson, 687 F. 2d 66 (5th Cir. 1982), cert. denied, 104 S.Ct. 255 (1983); Dennison v. City of Los Angeles, 658 F . 2d 694 ( 9th Cir. 1981); EEOC v. McCall Printing Corp., 633 F . 2d 1 232 , 1 238 ( 6th Cir. 1980); Culbreath v. Dukakis, 630 F .2d 15, 22 (1st Cir. 1980); Cuesta v. State of New York Office of Court Administration, 571 F. Supp. 392 (S.D.N.Y. 1983). See also Black & White Children v. School District, 464 F . 2d 1030 ( 6th Cir. 1972) (per curiam); Burns v. Board of School Commissioners, 437 F . 2d 1143 (7th Cir. 1971) (per curiam). This Court has concluded that a separate "reverse discrimination" lawsuit challenging provisions of a Title VII consent decree is frivolous and vexatious. Prate v. Freedman, 583 F.2d 42, 46 (2d Cir. 1978). The Court upheld a determination that the second district court does not even have jurisdiction over such an action. Pr ate v . Freedman, 4 30 F. Supp. 1 373 , 1 374-75 (W.D.N.Y. 1977 ), a f f 1d 7 After the Northern District initially refused to entertain plaintiffs' motion to enjoin use of the Kirkland list, JA. 636, 654, the Bushey plaintiffs attempted to intervene in the Kirkland case. That motion did not challenge the legality or validity of the Kirkland list. The motion to intervene was clearly untimely, and the Southern District declined to entertain the motion. JA 636-37. The Bushey plaintiffs did not appeal that decision. 16 without opinion, 573 F.2d 1294 (2d Cir. 1977), cert, denied, 436 U.S. 922 (1978). The District Court in Prate reasoned that "[t]o permit further challenge of the ... consent decree would clearly violate the policy under Title VII to promote settlement ... and would also result in continued uncertainty for all parties involved and render the concept of final judgments meaingless. 430 F. Supp. at 1375. This Court concluded that the proper avenue for relief would have been "filing a timely motion to intervene in the original case." Prate, 583 F.2d at 96. Moreover, any separate action that calls into question the meaning of a consent decree constitutes an impermissible col lateral attack. For example, the white plaintiffs in Thaggard v. City of Jackson challenged hiring and promotion practices which they contended were not covered by consent decrees entered in prior cases. 687 F.2d at 68. Defendants argued that the challenged practices were mandated by the consent decrees. Id. at 67. The Court of Appeals determined that "the substance of plaintiffs' position" amounted to an impermissible collateral attack on the previous consent decree. _Id. at 68. The preliminary injunction entered by the Northern District clearly constitutes an impermissible collateral attack on the Kirkland consent judgment. Although the Northern District concluded (erroneously, as discussed in Point B below) that its injunction did not violate the Kirkland consent judgment it was necessary for the Court to interpret the Settlement Agreement in 8 order to make this determination. This act of interpretation ® The Northern District rejected arguments about "the parties' intentions ... during negotiation and settlement of the Kirkland 17 constitutes impermissible interference with the Kirkland decree, s.q., Thaggard, supra. Thus, the preliminary injunction should be vacated because the Northern District lacked jurisdiction over the controversy. E.g. , Prate, supra. B. The Kirkland Settlement Agreement Requires that The Kirkland List Be Dsed in Making Appointments Even assuming that the Northern District had jurisdiction to interpret the Kirkland Settlement Agreement, the Court's inter pretation is incorrect. In response to the argument that the injunction would interfere with implementation of the Kirkland consent order, the Northern District concluded. " [T]here is utterly no merit to the State's position that it is under some legal obliga- t ion to make appointments off of the Kirkland list.... [T ]he [Kirkland] consent decree ... is entirely silent as to a specific method of selecting captains in the future." JA. 893. The Northern District's construction of the Settle ment Agreement is inconsistent with the clear language of the Agreement as well as with other indicia of the parties' intent. The Settlement Agreement requires the Kirkland defendants to "develop and administer [a] new selection procedural for the pos it io[n] of ... Correction Captain." JA. 705 (Stip. Settlement, Art . VI, K 1). This new procedure is required to be consistent with professionally accepted employment selection measures," JA. 699 (Art. I, H 11), and to "eliminate or minimize adverse impact ... litigation" and referred to the "four corners" rule of construction of a consent decree. JA. 893. 18 on minority candidates,- JA. 708 (Art. VI, 17). The Settlement Agreement also sets specific deadlines for the development and administration of the new selection procedure and for the publication of the resulting eligible list. JA. 708 (Art. VI, 1 9 6 ). The development and use of the new selection procedure for the position of Correction Captain is an integral and significant part of the Kirkland Settlement Agreement. The Kirkland plain tiffs claimed that use of the Bushey list would violate Title VII because minority individuals were discriminatorily excluded from the pool of candidates eligible to sit for this examination. JA. 696, ADD 6. This claim was settled expressly in return for the defendant's agreement to develop a new, job-related selection procedure. JA. 632-33, 899-908. The Northern District apparently interpreted the Kirkland Settlement Agreement to require only that defendants develop and administer a new selection procedure, and not that they use the procedure for the purpose of selecting future captains. In essence, the Court interpreted the Agreement to permit defendants to put the new eligible list on the bookshelf or in the garbage can and to continue making appointments in any manner that they desired. The Aareement reouires that defendants "use their best efforts" to commence administration of the new procedure by September , 1983. and mandates that administration commence no later than December 31 , 1983. Publication of the resulting eligibility li must occur "within six (6) months of commencement of administra tion of the procedure." JA. 708 (Art. VI, 1 6). 19 The Northern District's conclusion that the Settlement Agreement is "entirely silent as to a specific method of selec ting captains in the future" apparently is based on reading Paragraph six of Article VI in isolation from the rest of the Agreement and without regard to the standard rules of construc tion applicable to consent settlements. This paragraph sets out the requirements and deadlines for administering and publishing the results of the new selection procedure. JA. 708. It is true that the paragraph does not explicitly provide that upon publica tion the resulting list is to be used for making appointments. However, this intent becomes clear when the document as a whole is examined. Article I, 1 11 of the Settlement Agreement explicitly states that the results of the new selection procedure will be utilized in making appointments: "The parties wish to use a method of selecting persons to be appointed to the positions of ... Correction Captain which is consistent with professionally accepted employment selection measures and which is directed towards eliminating unlawful adverse impact upon minorities." JA. 699 (emphasis added). In addition, Article I, 1 7 provides: "It is the purpose and intent of this Stipula tion to assure ... that any disadvantage to minorities which may have resulted from the use of examination No. 36-808 is remedied." JA. 697-98 (emphasis added). 20 The Northern District's interpretation flies in the face of the 1 0 unambiguous language of the Settlement Agreement. Moreover, the Northern District's construction renders meaningless a significant part of the Settlement Agreement. It is simply incredible that the parties intended to require defendants to engage in the expensive, time-consuming process of developinq and administering a new selection procedure, the results of which could simply be ignored. The care with which the parties set forth detailed requirements and deadlines aoverning the new selection procedure indicates that the parties intended the results of the process to be used upon expiration of the deadlines. Finally, the attorneys for both parties to the Kirkland settlement agree that the Kirkland list was intended to supersede the Bushey list. The attorneys have filed sworn affidavits stating that they were aware that State law and customary 10 In its earlier opinion granting summary judgment in favor of plaintiffs, the Northern District apparently recognized that the new procedures were to be used in making promotions. The Court stated: "The settlement agreement provided ... for the development and administration of new selection procedures for prompt ion to ... Correction Captain." 571 F. Supp. at 1564 (emphasis added). Moreover, counsel for defendants and the Wells intervenors have previously recognized that the Kirkland settlement mandates use of the resulting eligible list and revocation Bushey list. JA. 499 (affidavit of John D. Shyer stating that Kirk 1 and settlement required defendants "to use the eligible list resulting from that new examination ... to make future appointments to the title of Captain"); JA. at 644 (affidavit of Richard R. Rowley noting that Kirkland settlement provided "for a shortened life for the captains' eligible list"). 21 practice required that a new list supersede the prior list and that they relied on this law and practice in negotiating the Settlement Agreement. JA. 633, 900. It is well-settled that the •four corners" doctrine of construction permits the circumstances surrounding the formation of a consent order to be relied upon in construing the agreement. United States v. ITT Continental Baking Co. , 420 U.S. 223, 238 (1975); Schurr v. Austin Galleries of Illinois, Inc., 719 F.2d 571, 574 (2d Cir. 1983); New York State Ass'n for Retarded Children, Inc, v. Carey, 596 F.2d 27, 37 (2d Cir. 1979), cert. denied, 444 U.S. 836 (1979). Defendants have stated that in the absence of this injunc tion, approximately 50 current vacancies and all future vacancies would be filled from the Kirkland list. The delay in making appointments caused by the injunction violates the Ki rkland Settlement Agreement. The Agreement sets out clear time require ments for development and administration of the new selection procedure. These deadlines were designed to allow time to develop a professionally-validated procedure without unduly delaying plaintiffs' remedy. JA. 633 (affidavit of Barbara B. Butler, stating that purpose was to end life of Bushey list as soon as possible) ; JA. 900 (affidavit of Penda D. Hair, stating that sole purpose of new examination was "to terminate use of the Bushey list as soon as possible"). 22 The Kirkland suit was filed in January 1982 and the Settle- went Agreement was signed in August 1982. The Kirkland class members have already been waiting for over three years for remedial appointments to commence. These plaintiffs gave up their claims for backpay and immediate appointments in return for the defendants ' promise to implement a new sel a fixed time schedule. The Norther n Distr con templates that the prel iminary injunct eff ect for a substantial period of t ime . ef fective "pe nding a trial and judgment on fur ther order of this Court." JA. 923 . Such a subst ant i al infringement upon the rights and the other members of the Kirkland class. II. The Requirements for Issuance of a Preliminary Injunction Are Not Satisfied Regardless whether the preliminary injunction violates the Kirkland Settlement Agreement, such an injunction is not autho rized in the facts of this case. A party seeking a preliminary injunction must demonstrate "(a) irreparable harm and (b) either (1) likelihood of success of the merits or (2) sufficiently serious questions going to the merits ... and a balance of hardships tipping decidely toward the party requesting the preliminary relief." Jack Kahn Music Co. v. Baldwin Piano & Organ Co., 604 F . 2d 755, 758 (2d Cir. 1979). In addition, the effect of the injunction on the public interest must be considered. 23 Standard & Poor's Corp. v. Commodity Exchange Inc., 683 P.2d 704, 711 (2d Cir. 1982). See generally 11 C. Wright & A. Miller, Federal Practice and Procedure §2948 (1972 & 1983 Supp.). The Northern District Misapplied the Standards Governing Entry of a Preliminary Injunction The law is clear that all of the standards for issuance of a preliminary injunction must be met with respect to the party or parties that sought the injunction and that the preliminary injunction is designed to protect. E . g . , Bell & Howell: Mamiya Co. v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir. 1983) ("moving party has the burden of proving each of these elements"). The Northern District found that a likelihood of success was estab lished because the plaintiffs and the Wells intervenors took opposing positions on the issue of the score adjustment and one of the groups necessarily would prevail. However, the Court found irreparable injury only with respect to plaintiffs. Thus, the Court entered an injunction based on factual findings that the Wells intervenors may be likely to succeed while plaintiffs will suffer irreparable injury. The Court did not find that any 11 The Court reasoned: "[A]t least one of the two parties seeking injunctive relief must (since each party takes an opposite position regarding the merits of the underlying action) ulti mately be successful. That is to say, either plaintiffs will be successful in their challenge to the scoring adjustment, or defendant-intervenors will be successful in their defense of that adjustment. Success must necessarily come to one of those parties and there is therefore to be found a likelihood of success on the merits." JA. 892. 12 j fa % 89 1—92 (irreparable injury consists of possibility that plaintiffs will be denied judicial review of their claims). 24 party has net all of the requirements for a preliminary injunc tion. The injunction must be vacated because it is not supported by adequate findings pursuant to Fed. Rule Civ. Proc. 65. E.g., Bell t Howell, 719 P.2d at 46 (vacating preliminary injunction as abuse of discretion where no adequate finding of irreparable harm). B. Because Plaintiffs' Claims Are Moot and the Wells Intervenors Have Asserted Wo Claim, Neither Party Can Establish a Likelihood of Success on the Merits_______ 1. A preliminary injunction must relate to a remedy that the moving party is likely to obtain The underlying controversy involves an examination that has never been used and that defendants do not intend to use in making appointments. Once defendants revoked the Bushey list and superseded it with the Kirkland list, the injunctive claims with 13 respect to the scoring of the 1982 examination became moot. Since neither plaintiffs nor the Wells intervenors have a right to compel defendants to use the revoked Bushey list, they have no likelihood of obtaining any remedy to which the prelimi nary injunction relates. Because the purpose of a preliminary injunction "is to preserve the court's ability to render a meaningful decision after a trial on the merits," Canal Authori ty v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974), a party seeking interim relief must show that he or she has a likelihood of obtainina the permanent injunctive relief to which the Because intervenor Leath believes that plaintiffs' injunctive claims are moot, this brief does not discuss the merits of the scoring procedure. We note that we generally agree with the position taken by defendants that the score adjustment was proper. 25 preliminary injunction relates. Cuesta, supra, 571 F. Supp. at 3 9 4 ; Subway Newsdealers Corp. v. Metropolitan Transportation Authority, 563 F. Supp. 319, 321 (S.D.N.Y. 1983). In a situation very similar to the case at bar, the Court in held that plain tiffs challenging an examination were not entitled to a pre liminary injunction prohibiting appointments based on the test The Court reasoned that even if plaintiffs succeeded in proving that the test was invalid, they would not be entitled to appoint ments, but only to compete in a new, valid selection procedure. Cuesta, 571 F. Supp. at 394. The Northern District did not consider what type of relief would be appropriate if either the plaintiffs or the Wells—inter— venors prevail on the issue of whether the score adjustment was legal. The Court assumed that if the plaintiffs prevail, they will be appointed according to their unadjusted scores on the 1 982 examination and if the Wells intervenors prevail, they will be appointed according to their positions on the Bushev list 1 4 as promulaated by defendants. As discussed below, the most that either party could obtain is the right to compete on a new, valid selection procedure, which the 1983 selection procedure The Court stated at the January 11, 1985 hearing: determine that those adjustments are incorrect, then reverts to its unadjusted form, isn't that right?" JA " [ I ] f I the list 610-11. 26 already provides. 7 . Title VII prohibits appolntaents on the basis of bhe unadjusted scores on the ^982 examination Even if plaintiffs prevail on one of their claims on remand, they will not be entitled to appointment on the basis of the unadjusted scores on the '1982 examination. This Court has already found that the scores on the 1982 examination produced a significant adverse impact on minority candidates. 733 F.2d at 224-26. A selection procedure that produces an adverse impact cannot be used unless the employer proves that the procedure is job-related. E . g ♦ , Griggs v. Duke Power C o ., 401 U.S. 424 ( 1 9 7 1 )- Connecticut v. Teal, 457 D.S. 440 ( 1982); Kirkland, 711 F.2d at 1130; Berkman v. City of New York, 705 F .2d 584, 587, n.2 (2d Cir. 1983); Guardians Ass’n of New York City v. Civil Service Common, 630 F.2d 79, 105-06 (2d Cir. 1980), cert, denied, 452 U.S. 940 (1981); EEOC v. Local 638, 532 F.2d 821, 825-26 (2d Cir. 1976); Vulcan Society of New York City Fire Dept., Inc, v. Civil Service Comm’n , 490 F . 2d 387 ( 2d Cir. 1973). The 1962 examina tion has not been shown to be job-related and the employer maintains that such a showing cannot be made. Thus, if the Northern District were to find that the score adjustment violated Title VII, the Court’s only option would be to throw out 15 the 1982 examination in its entirety. 15 plaintiffs’ own expert has opined that the 1982 examination must be discarded and a new selection procedure devised if the 1982 examination is not shown to be job-related. JA. 872. 27 Plaintiffs have indicated their intent to attempt to prove at trial that the 1 982 examination was job-related, JA. 879. However, this Court determined in the first Bushey appeal that the job-relatedness of the 1982 examination is irrelevant to resolution of plaintiffs' claims. 733 F.2d at 226-27. Moreover, even if it were judicially determined that the 1982 examination is job-related, Title VII still forbids its use. The Supreme Court has held that an employer may not use a job-related, valid selection device if an alternative device "without a similarly undesirable racial effect, would also serve the employer's legitimate interest in 'efficient and trustworthy workmanship,'" Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 (1973)). See also Grant v. Bethlehem Steel Corp., 635 F .2d 1007, 1015 (2d Cir. 1980), cert, denied, 452 U.S. 940 (1981). In this case, the Kirkland examination, which was developed with outside expert assistance according to professional standards and which produced a much less severe adverse impact on minority candidates, J ? . 699, ADD. 30-32,constitutes such an alternative. Thus under no circumstances may the District Court award plain tiffs promotions on the basis of the unadjusted scores on the Bushey examination. As this Court stated in Kirkland, " [n]on- minorities do not have a legally protected interest in the mere expectation of appointments which could only be made pursuant to presumptively discriminatory employment practices." 711 F.2d at 1126. 28 3 Plaintiffs' clai»» for Injonctlve relief ire »oot Title VII testing cases provide guidance on the type of injunctive relief to which plaintiffs would be entitled if they prevail on their trammeling claim. The most important remedy in a testing case is an injunction against use of the test results. E.g, Guardians A ss’n , 630 F.2d at 108-09. In many cases courts also have required the employer to develop a new, job-related selection procedure. Id. See also Berkman, 705 F.2d at 59^. In this case, the Bushey list has never been used in making permanent appointments. Thus, if plaintiffs were to prevail, an injunction against use of the Bushey list would 17 remedy the violation. Such an injunction would result in equal treatment of all individuals who sat for the Bushey examination -- as though the test had never occurred. However, such an 16 Of course, where an illegal selection device already has been used in makinq appointments, courts usually award future appoint ments to candidates who were illegally excluded by the selection procedure and may also fashion affirmative relief to remedy past violations. E.g. Guardians Ass'n, 630 F.2d at 108. ^ The Northern District previously concluded that an injunction aqainst use of the Bushey list was a sufficient remedy for any violation of plaintiffs’ rights. When it granted summary judgment in favor of plaintiffs, the only relief ordered was an injunction against use of the Bushey list 571 F. Supp. at 1580. When the plaintiffs filed a motion for contempt, arguing that the Court's order implicitly required defendants to make appointments from the unadjusted scores on the 1982 examination, the Northern District denied the motion, stating that the plaintiffs had interpreted the order more broadly than the court intended. JA. 4 4 0. It seems unlikely that the Northern District would impose a broader remedy in the event that it finds in favor of plaintiffs on the more narrow claim left to be resolved on remand. 29 injunction is not necessary because defendants have repeatedly announced their intention not to utilize the Bushey list in making appointments. If plaintiffs were to prevail and the Court desired to provide them with additional assurance that they would be treated fairly in the future, such relief would take the form of a requirement that defendants develop and use a job-related selection procedure. E . g , Guardians Ass'n, 630 F.2d at 108-09; Cuesta, 571 F.Supp. at 394. However, such a procedure already has been developed pursuant to the Kirkland Settlement Agreement. The Kirkland list would be currently in use in the absence of the * 3 preliminary injunction at issue. The 1983 selection procedure and defendants' voluntary revocation of the Bushey list give plain tiffs all the relief to which they would be entitled if they prevail on the merits. Thus, plaintiffs' claims for injunctive relief are moot. Consequently, plaintiffs cannot possibly establish a likelihood of success on those claims. 3 . The Wells intervenors will be entitled to no relief in the event that defendants prevail The Wells intervenors are five black individuals who appear on the Bushey list. They intervened to help defend the score adjustments at a time when there existed a possibility that defendants would make appointments off the Bushey list. The Wells intervenors have never asserted a cross claim against defendants. Thus, the Wells intervenors' likelihood of obtaining a remedy is even less than that of the plaintiffs. The only claim before the Northern District is whether defendants 30 have discriminated against on this issue they will be has been asserted against able to make appointments 18 Court. the plaintiffs. If defendants prevail free from liability on any claim that them in the Bushey case, and will be without interference from the Bushey Even if this Court were to assume that the Wells intervenors .ay assert a cross claim against defendants at some time in the future, the intervenors still cannot satisfy their burden of showing a likelihood of success on the merits of such a cross claim. It is difficult to speculate about the nature of such a cross claim, much less its chance of success. Title VI! does not give the wells intervenors a right to require defendants to use the Bushey list as opposed to the KirVland list. Since minority candidates did better on the 1983 selection procedure than on the ,982 examination, it is highly unlikely the Wells intervenors could successfully claim that defendants' decision to use the Kirkland list constitutes discrimination against them on the 1 9 basis of their race. 1 8 19 no relief if defendants prevail. JA. 6UU. Moreover, even if ^ l i n ^ t h ' a t 8 thCeeySS« o C l d s u f f e r a n y irreparable injury. The finding that t n e y _ . a i n)- i f f s — that they mightfinding of irreparable injury « to plainti__ against de£en_ d°ants“ V a l e s not’exist with respect to the Wells intervenors, since they have asserted no claim against anyone. 31 C. The Northern District Erred in Finding Irreparable Harm The only irreparable injury found by the Northern District was based on its interpretation of the All Writs Act, 28 U.S.C. S 1651. The Court correctly noted that the All Writs Act gives federal courts the "'power to preserve jurisdiction or maintain the status quo by injunction pending review,'" (quoting F.T .C v^ Dean Foods Co., 384 U.S. 597, 604 (1966)). However, the Court then incorrectly reasoned: " [P]laintiffs stand to be irreparably injured by losing their right to judicial review of their original claims since a failure to enjoin use of the Kirkland list might well moot the lawsuit itself. In other words, an injunction appears necessary to insure that there will be something left to decide." JA. 891-92. 1 # The All Writs Act does not authorize issuance of an injunction in this case The All Writs Act authorizes federal courts to formulate extraordinary remedies in extraordinary circumstances. E^c. , FTC v. Deans Foods, 384 U.S. 597 (1966). However, where the remedy imposed is a preliminary injunction or its functional equivalent, the Act does not relieve a district court of the duty of comply ing with the requirements of Fed. Rule Civ. Proc. 65. Florida Medical Ass'n v. U.S. Dept, of Health, Education & Welfare, 601 F.2d 199, 202 (5th Cir. 1979). The purpose of the All Writs Act is to authorize a court to prevent improper interference with its jurisdiction. Cont inental Illinois Nat'l Bank v. Chicago R.I. & P.R.R. Co., 294 U.S. 648, 32 675-76 ( 1935); ITT Community Development Corp.v._Barton, 569 F.2d 1 35 1 , 1 359 ( 5th Cir. 1 978); 9 J. Moore, B. Ward & J. Lucas, Moore’s Federal Practice 1 110.29 (1983). Any time a legal claim becomes moot, the court will be deprived of jurisdiction. However, it is only where a party acts improperly in mooting a controversy that the All Writs Act becomes applicable. ITT Community Development Corp., 569 F .2d at 1369; 9 Moore’s Federal Practice U 110.29. In determining whether an action that moots a controversy is improper, a distinction must be drawn between actions which cause mootness by providing the plaintiff all the relief to which he or she is entitled and actions which cause mootness by denying the plaintiff the possibility of a meaningful remedy. For example, where the plaintiff sought permanently to enjoin a merger, issuance of a temporary injunction to prevent the merger was proper because consumation of the merger would have deprived the plaintiff of any possibility of a remedy. F.T.C. v. Dean Food_s, 384 U.S. at 600. If, however, the controversy had become moot because the two companies involved decided to drop the merger plan, the plaintiff would have received all that it was seeking and the action mooting the controversy would not have constituted an improper interference with the Court's jurisdiction. Similarly, as discussed above, in this case use of the Kirkland list would provide plaintiffs with all the relief to which they would be entitled if they succeed on the merits. By 33 enjoining use of the Kirkland list the Northern District is improperly attempting to keep alive a controversy that is properly moot. Moreover, the preliminary injunction entered by the District Court has no effect on whether plaintiffs' claim are moot. If the claims for injunctive relief are properly moot, the injunc tion cannot revive them. Assuming arguendo that the claims are not properly moot, then the injunction is not needed to keep them from becoming moot. In the absence of the injunction, plain tiffs' case could still go forward. If it were later determined that they should have been appointed on the basis of their unadjusted scores on the Bushey examination, a variety of remedial options would be available, including back pay, front pay and preference for future appointments. Ê _g. , C^esta, 571 F. Supp. at 394. The injunction entered by the Northern District relates only to one specific remedy that plaintiffs have sought. However, the fact that a particular remedy might not be available does not make a controversy moot. Sampson v. Murray, 415 U.S. 61, 77-78 (1 9 7 4 ). i tT Community Development Corp., 569 F.2d at 1359-60. Thus, the irreparable harm specified by the District Court --plaintiffs' loss of "their right to judicial review of their original claims" — simply is not present in this case. 34 2. Temporary loss of income and position does not constitute irreparable harm Plaintiffs and the Wells intervenors contended in the District Court that their clients would be irreparably harmed if existing vacancies were filled from the Kirkland list, because they might later be found to be entitled to appointment to those vacancies. The Wells intervenors further claimed that irreparable injury would result because they would lose their provisional Captain's appointments once permanent appointments were made. The Northern District properly did not rely on such allegations as establishing irreparable harm. The courts have made clear that, absent extraordinary circumstances, lost employment opportunities can be compensated by money damages and hence to not constitute irreparable injury. E.g., Sampson v . Murray, 415 U.S. 61, 88-92 (1 9 7 4 ); Holt v. Continental Group, Inc., 708 F.2d 87, 90-91 (2d Cir. 1 983 ), cert, denied, 104 S. Ct. 1294 (1984). The Wells intervenors have agreed that even if current vacancies are filled, a sufficient number of new vacancies will arise so that any individual who succeeds in establishing his entitlement to an appointment can be awarded one at the end of the trial. JA. 501. The loss of temporary appointments also does not cause irreparable harm. In a very similar situation, the Court in Cuesta, supra, 571 F. Supp. at 394, held that provisional court officers could be removed in order to allow permanent appoint ments to be made from a new eligible list that was being chal lenged by the provisional employees. D. The Balance of Hardships Does Not Tip Decidedly Toward Plaintiffs or the Wells Intervenors_________________ . As an alternative to establishing a likelihood of success on the merits, the party seeking a preliminary injunction may establish "sufficiently serious questions going to the merits ... and a balance of hardships tiping decidedly toward the party requesting the preliminary relief." Jack Kahn Music, 604 F.2d at 758. For the reasons discussed in Point B above, neither the plaintiffs nor the Weils-intervenors can establish a serious question on the merits. Moreover, it is clear that the balance of hardships does not tip decidedly toward either of these parties. The Northern District Court found that "[t]he balance of hardships must tip in favor of the individuals seeking promotion as opposed to the state defendants who suffer at most, adminis trative inconvenience, a problem with which they have struggled for some time, and probably will continue to struggle with." JA. 892-93. The critical factor ignored by the Court in striking this balance is the interest of intervenor Leath and the other members of the Kirkland class in promotions on the basis of the Kirkland list. The hardship to the Kirkland class of not receiving promotions is at least equal to the hardship to the plaintiffs or the Wells intervenors. Moreover, if the Northern District ultimately finds that one or more of the plaintiffs or the Wells intervenors are entitled to appointment, the Court can award backpay or frontpay, or both, to compensate them for the delay in appointment. By 36 contrast, it is doubtful that intervenor Leath and other members of the Kirkland class can obtain backpay in the event that the Court ultimately determines that the preliminary injunction deprived them of appointments to which they were entitled. When the hardship to intervenor Leath and the Kirkland class is added to the administrative hardship to the defendants, it is clear that the balance of hardships weighs in favor of denial of the injunction. E . The Public Interest Mandates Denial of the Injunction Several important public policies are thwarted by the entry of the preliminary injunction. First, allowing collateral injunctions against the implementation of Title VII settlements significantly undermines the strong public policy favoring voluntary settlement of Title VII disputes. Kirkland, 711 F.2d at 128-29. In addition, it is clear that the 1982 examination is an unsatisfactory selection procedure from all points of view. The pool for the 1982 examination was discriminatorily consti tuted as a result of the discriminatory selection procedure for Correction Lieutenant. The examination itself was not profes sionally validated and most likely is invalid as a selection device. The examination produced an adverse impact on the small pool of minority candidates that were eligible to take it. 2° Althouqh defendants are currently in violation of the Kirkland consent judgment it seems unlikely that a Court would award damaaes For a violation mandated by an injunction which the defendants opposed. Since the Northern District has waived the postinq of a bond by plaintiffs, there is little hope that intervenor Leath and other Kirk1and class members could obtain compensation from plaintiffs. 37 By contrast, the 1983 selection procedure was professionally developed and validated, was open to a much larger pool of minority candidates and produced a smaller adverse impact on the pool of minority candidates. Use of the 1983 procedure not only will further the Title VII interest in fair selection methods, it also will advance the public interest in obtaining the most highly qualified public servants for the sensitive position of Correction Captain. in essence, both plaintiffs and the Wells interveners are attempting to capitalize on the fact that they scored well on a non-job-related test for which a large number of minority candidates were not even permitted to sit. While their desire to obtain appointments is understandable, Title VII does not give plaintiffs or the Wells intervenors a legal right to be appointed on the basis of such an examination. S^e Kirkland, 711 F.2d at 1126. The public interest clearly favors use of the Kirkland list to fill current and future vacancies. III. The Injunction Is Not Narrowly Tailored to Serve the Purpose Identified By The District Court An injunction must be "tailored to restrain 'no more than what is reasonably required to accomplish its ends.'" Societv For Good Will To Retarded Children, Inc, v. Cuomo, 737 F.2d 1239, 1251 (2nd Cir. 1984) (quoting Consolidation Coal Co. v.— Disabled Miners, 442 F.2d 1261, 1267 (4th Cir.), cert, denied, 404 U.S. 911 (1971)); Rogers v. Schurr, 676 F . 2d 1211, 1214 (8th Cir. 38 1 9 8 2 ); Aviation Consumer Action Project v. Washburn, 535 F . 2d 101, 108 (D.C. Cir. 1976). Narrow tailoring is particularly important "when preliminary relief, on something less than a full record and full resolution of the facts is granted." Consolida- t ion Coal, 442 F.2d at 1267 ; Stenberg v. Checker Oil Co. , 573 F.2d 921, 924 (6th Cir. 1978). In the situation where plaintiffs are asserting only individual claims and have not been certified as class representatives, injunctive relief should be tailored to redress only their personal grievances. Davis v. Romney, 490 F.2d 1360, 1370 (3d Cir. 1974). The principle of narrow tailoring requires the court to award preliminary relief only to those specific individual claimants that have shown a likelihood of success on the merits and irreparable harm. In addition, the the court should tailor the preliminary injunction to the type of permanent remedy the prevailing party can expect to receive. E .g . , Cuesta, 571 F.Supp. at 394. In this case, plaintiffs are thirteen individuals and the Wells intervenors are five individuals. None of these claimants represent a class. As the District Court recognized, it is not possible that all of these 18 individuals will be entitled to relief on the merits. The two groups of claimants take opposite positions on the merits and thus at least one group must be unsuccessful. Moreover, not all of the plaintiffs or the Wells intervenors are helped by the issuance of the preliminary injunction. Uncontroverted evidence in the record establishes that some of 39 the plaintiffs and intervenors are higher on the Kirkland list than on the Bushey list and other of the claimants are so low on the Bushey list that they would not be appointed in any event. JA. 659. The District Court ignored evidence regarding the status of the 18 individual claimants and rejected the request of defen dants and intervenor Leath to tailor the injunctive relief to the particular individual circumstances. Instead, in order to preserve Captain positions for perhaps as few as four indivi duals, JA. 667, the Court enjoined defendants from filling the approximately 50 vacancies that existed at the time the injunc tion was entered, as well as all future vacancies arisinq there- 21 after. The injunction entered by the Northern District also is overbroad in that it exceeds the claims asserted by the moving parties. Plaintiffs claimed only that the 45 vacancies open on June 1 0 , 1 984 , should be preserved to be filled from the Bushev list, JA. 608, while the Wells intervenors wanted to preserve only the 37 positions open on March 31, 1984, JA. 528, 688. Nonetheless, the District Court enjoined use of the Kirkland list Plaintiffs and the Wells intervenors may arque that tailorina is not possible because Captain's positions occur at different facilities and the preservation of a fixed number of positions would not guarantee that the position sought by a particular claimant would be among those preserved. However, this argument ignores the fact that narrow tailoring involves identification of the particular claimants who are entitled to preliminary relief. If the District Court had performed its Rule 65 functions properly and had identified which of the 18 individuals have satisfied the requirements for a preliminary injunction, Cap tain's vacancies at the particular facilities desired by those claimants could have been kept open without enjoining appoint ments to more than 50 positions. 40 to fill all of the vacancies that arose between June 10, 1984 and January 25, 1985, as well as all vacancies arising thereafter. JA. 894, 923. The Court specified no basis for this part of the injunction. CONCLUSION For the reasons stated above, the preliminary injunction prohibiting appointments from Eligible List No. 38-093 should be vacated, plaintiffs' claims for injunctive relief should be dismissed as moot and the plaintiffs and Wells intervenors should be required to pay the costs of this appeal. Respectfully submitted, (5̂ u.ckTD. Htlvl JULIUS LEVONNE CHAMBERS PENDA D. HAIR 99 Hudson Street 16th Floor New York, New York 10013 (212) 219-1900 ATTORNEYS FOR DEFENDANT-INTERVENOR-APPELLANT GLENDA F. LEATH Dated April 22, 1985. 41 CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of April, 1985, I served the attached Brief of Defendant-Intervenor-Appellant Glenda F. Leath by hand on: 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 and by Federal Express on Ronald G. Dunn, Esq. Rowley, Forrest & O'Donnell, P.C. 90 State Street Albany, New York 12207 and that I served the attached Joint Appendix and Addendum to the Brief on the above parties by first class mail. Attorney for Defendant-Intervenor- Appellant Glenda F. Leath