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

    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