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Civil Rights (2 of 3)
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Records of the Office of Counsel to the President (Reagan Administration)
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: Civil Rights (2 of 3)
Box: 11
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
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file.
NOTE Where it B feasible. a syllabus (headnote) will be released. as in
being done in connection WILD this case. at the ume the opinion is ussued.
The syllabus constitutes no part of the opmion of the Court but has been pre-
pared by the Reporter of Decusions for the convenience of the reader. See
United States V. Detrout Lumber Co., 200 U. S. 321. 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
FIREFIGHTERS LOCAL UNION NO. 1784 v.
STOTTS ET AL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 82-206. Argued December 6, 1983-Decided June 12. 1984*
Respondent Stotts, a black member of petitioner Memphis, Tenn. Fire
Department. filed a class action in Federal District Court charging that
the Department and certain city officials were engaged in a pattern or
practice of making hiring and promotion decisions on the basis of race in
violation of, inter alia, Title VII of the Civil Rights Act of 1964. This
action was consolidated with an action filed by respondent Jones, also a
black member of the Department. who claimed that he had been denied a
promotion because of his race. Thereafter, a consent decree was en-
tered with the stated purpose of remedying the Department's hiring and
promotion practices with respect to blacks. Subsequently, when the
city announced that projected budget deficits required a reduction of city
employees, the District Court entered an order preliminarily enjoining
the Department from following its seniority system in determining who
would be laid off as a result of the budgetary shortfall, since the pro-
posed layoffs would have a racially discriminatory effect and the senior-
ity system was not a bona fide one. A modified layoff plan, aimed at
protecting black employees 30 as to comply with the court's order, was
then presented and approved. and layoffs pursuant to this plan were car-
ried out. This resulted in white employees with more seniority than
black employees being laid off when the otherwise applicable seniority
system would have called for the layoff of black employees with less se-
mority. The Court of Appeals affirmed, holding that although the Dis-
trict Court was wrong in holding that the seniority system was not bons
fide, it had acted properly in modifying the consent decree.
Together with No. 82-229, Memphis Fire Department et al. V. Stotts
at al., also on certiorari to the same court.
I
D
FIREFIGHTERS v. STOTTS
Syllabus
Held:
1. These cases are not rendered moot by the facts that the preliminary
injunction purportedly applied only to 1981 layoffs. that all white em-
ployees laid off as a result of the injunction were restored to duty only
one month after their layoff. and that others who were demoted have
been offered back their old positions. First, the injunction is still in
force and unless set aside must be complied with in connection with any
future layoffs. Second. even if the injunction applied only to the 1981
layoffs. the predicate for it was the ruling that the consent decree must
be modified to provide that the layorfs were not to reduce the percentage
of black employees. and the lower courts' rulings that the seniority sys-
tem must be disregarded for the purpose of achieving the mandated re-
suit remain undisturbed. Accordingly. the inquiry is not merely
whether the injunction is still in effect, but whether the mandated modi-
fication of the consent decree continues to have an impact on the parties
such that the cases remain alive. Respondents have failed to convince
this Court that the modification and the pro tanto invalidation of the se-
niority system are of no real concern to the city because it will never
again contemplate layoffs that if carried out in accordance with the se-
mority system would violate the modified decree. Finally, the judg-
ment below will have a continuing effect on management of the Fire De-
partment with respect to making whole the white employees who were
laid off and thereby lost a month's pay and seniority, or who were de-
moted and thereby may have backpay claims. Unless that judgment is
reversed. the layotfs and demotions were in accordance with the law.
The fact that not much money and seniority are involved does not deter-
mine mootness. Pp. 5-9.
2 The District Court's preliminary injunction cannot be justified
either as a effort to enforce the consent decree or as a valid modification
thereof Pp. 10-21.
(a) The injunction does not merely enforce the agreement of the
parties as reflected in the consent decree. The scope of a consent decree
must be discerned within its four cornera. Here, the consent decree
makes no mention of layoffs or demotions nor is there any suggestion of
an intention to depart from the existing seniority system or from the De-
partment's arrangement with the union. It therefore cannot be said
that the decree's express terms contemplated that such an injunction
would be entered. Nor is the injunction proper as carrying out the
stated purpose of the decree. The remedy outlined in the decree did not
include the displacement of white employees with seniority over blacks
and cannot reasonably be construed to exceed the bounds of remedies
that are appropriate under Title VII. Title VII protects bona fide se-
niority systems, and it is inappropriate to deny an innocent employee the
FIREFIGHTERS u STOTTS
III
Syllabus
benefits of his seniority in order to provide a remedy in a pattern-or-
practice suit such as this. Moreover, since neither the union nor the
white employees were parties to the suit when the consent decree was
entered, the entry of such decree cannot be said to indicate any agree-
ment by them to any of its terms. Pp. 11-13.
(b) The theory that the strong policy favoring voluntary settlement
of Title VII actions permits consent decrees that encroach on seniority
systems does not justify the preliminary injunction as a legitimate modi-
fication of the consent decree. That theory has no application when
there is no "settlement" with respect to the disputed issue, such as here
where the consent decree neither awarded competitive seniority to the
minority employees nor purported to depart from the existing seniority
system. Nor can the injunction be so justified on the basis that if the
allegations in the complaint had been proved. the District Court could
have entered an order overriding the seniority provisions. This ap-
proach overstates a trial court's authority to disregard a seniority sys-
tem in fashioning a remedy after 2 plaintiff has proved that an employer
has followed a pattern or practice having a discriminatory effect on black
employees. Here, there was no finding that any of the blacks protected
from layoff had been a victim of discrimination nor any award of competi-
tive seniority to any of them. The Court of Appeals' holding that the
District Court's order modifying the consent decree was permissible as a
valid Title VII remedial order ignores not only the ruling in Teamsters V.
United States. 431 U. S. 324. that a court can award competitive senior-
ity only when the beneficiary of the award has actually been a victim of
illegal discrimination. but aiso the policy behind § 706(g) of Title VII of
providing make-whole relief only to such victims. And there is no merit
to the argument that the District Court ordered no more than that which
the city could have done by way of adopting an affirmative-action pro-
gram. since the city took no such action and the modification of the de-
cree was imposed over its objection. Pp. 13-21.
679 F. 2d 541, reversed.
WHITE. J., delivered the opinion of the Court, in which BURGER. C. J.,
and POWELL REHNQUIST. and O'CONNOR. JJ., joined. O'CONNOR. J.,
filed a concurring opinion. STEVENS. J., filed an opinion concurring in the
judgment. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN
and MARSHALL JJ., joined.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions. Supreme Court of the United States. Wash-
ington. D. C. 20543. of any typographical or other formal arrors. in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 82-206 AND 82-229
FIREFIGHTERS LOCAL UNION NO. 1784.
PETITIONER
82-206
v.
CARL W. STOTTS ET AL
MEMPHIS FIRE DEPARTMENT ET AL,
PETITIONERS
82-229
v.
CARL W. STOTTS, ETC., ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 12, 1984]
JUSTICE WHITE delivered the opinion of the Court.
Petitioners challenge the Court of Appeals' approval of an
order enjoining the City of Memphis from following its se-
niority system in determining who must be laid off as a result
of a budgetary shortfall. Respondents contend that the in-
junction was necessary to effectuate the terms of a Title VII
consent decree in which the City agreed to undertake certain
obligations in order to remedy past hiring and promotional
practices. Because we conclude that the order cannot be
justified, either as an effort to enforce the consent decree or
as a valid modification, we reverse.
I
In 1977 respondent Carl Stotts, a black holding the position
of fire-fighting captain in the Memphis, Tennessee, Fire De-
partment, filed a class action complaint in the United States
District Court for the Western District of Tennessee. The
complaint charged that the Memphis Fire Department and
82-206 & 82-229-OPINION
2
FIREFIGHTERS v. STOTTS
other city officials were engaged in a pattern or practice of
making hiring and promotion decisions on the basis of race in
violation of Title VII of the Civil Rights Act of 1964, 42
U. S. C. § 2000e et seq., as well as 42 U. S. C. §§ 1981 and
1983. The District Court certified the case as a class action
and consolidated it with an individual action subsequently
filed by respondent Fred Jones, a black fire-fighting private
in the Department, who claimed that he had been denied a
promotion because of his race. Discovery proceeded, settle-
ment negotiations ensued, and in due course, a consent de-
cree was approved and entered by the District Court on April
25, 1980.
The stated purpose of the decree was to remedy the hiring
and promotion practices "of the Department with respect to
blacks." 679 F. 2d 541, 575-576 (CA6 1982) (Appendix).
Accordingly, the City agreed to promote 13 named individ-
uals and to provide backpay to 81 employees of the Fire De-
partment. It also adopted the long-term goal of increasing
the proportion of minority representation in each job classifi-
cation in the Fire Department to approximately the propor-
tion of blacks in the labor force in Shelby County, Tennessee.
However, the City did not, by agreeing to the decree, admit
"any violations of law, rule or regulation with respect to the
allegations" in the complaint. Id., at 574. The plaintiffs
waived any further relief save to enforce the decree, ibid.,
and the District Court retained jurisdiction "for such further
orders as may be necessary or appropriate to effectuate the
purposes of this decree." Id., at 578.
The long-term hiring goal outlined in the decree paralleled
the provisions of a 1974 consent decree, which settled a case
brought against the City by the United States and which ap-
plied citywide. Like the 1974 decree, the 1980 decree also
established an interim hiring goal of filling on an annual basis
50 percent of the job vacancies in the Department with quali-
fied black applicants. The 1980 decree contained an addi-
82-206 & 82-229-OPINION
FIREFIGHTERS v. STOTTS
3
tional goal with respect to promotions: the Department was
to attempt to ensure that 20 percent of the promotions in
each job classification be given to blacks. Neither decree
contained provisions for layoffs or reductions in rank, and
neither awarded any competitive seniority. The 1974 decree
did require that for purposes of promotion, transfer, and as-
signment, seniority was to.be computed "as the total senior-
ity of that person with the City." Id., at 572.
In early May, 1981, the City announced that projected
budget deficits required a reduction of non-essential person-
nel throughout the City Government. Layoffs were to be
based on the "last hired, first fired" rule under which city-
wide seniority, determined by each employee's length of con-
tinuous service from the latest date of permanent employ-
ment, was the basis for deciding who would be laid off. If a
senior employee's position were abolished or eliminated, the
employee could "bump down" to a lower ranking position
rather than be laid off. As the Court of Appeals later noted,
this layoff policy was adopted pursuant to the seniority sys-
tem "mentioned in the 1974 decree and
incorporated in
the City's memorandum with the Union." 679 F. 2d, at 549.
On May 4, at respondents' request, the District Court en-
tered a temporary restraining order forbidding the layoff of
any black employee. The Union, which previously had not
been a party to either of these cases, was permitted to inter-
vene. At the preliminary injunction hearing, it appeared
that 55 then-filled positions in the Department were to be
eliminated and that 39 of these positions were filled with em-
ployees having "bumping" rights. It was estimated that 40
least-senior employees in the fire-fighting bureau of the De-
partment¹ would be laid off and that of these 25 were white
and 15 black. It also appeared that 56 percent of the em-
The Memphis Fire Department is divided into several bureaus, includ-
ing fire-fighting, alarm office, administration, apparatus, maintenance, and
fire prevention. Of the positions covered by the original injunction, all but
one were in the fire-fighting bureau.
82-206 & 82-229-OPINION
4
FIREFIGHTERS v. STOTTS
ployees hired in the Department since 1974 had been black
and that the percentage of black employees had increased
from approximately 3 or 4 percent in 1974 to 11½ percent in
1980.
On May 18, the District Court entered an order granting
an injunction. The Court found that the consent decree "did
not contemplate the method to be used for reduction in rank
or lay-off," and that the layoff policy was in accordance with
the City's seniority system-and was not adopted with any in-
tent to discriminate. Nonetheless, concluding that the pro-
posed layoffs would have a racially discriminatory effect and
that the seniority system was not a bona fide one, the District
Court ordered that the City "not apply the seniority policy
insofar as it will decrease the percentage of black lieutenants,
drivers, inspectors and privates that are presently em-
ployed
" On June 23, the District Court broadened its
order to include three additional classifications. A modified
layoff plan, aimed at protecting black employees in the seven
classifications so as to comply with the court's order, was pre-
sented and approved. Layoffs pursuant to the modified plan
were then carried out. In certain instances, to comply with
the injunction, non-minority employees with more seniority
than minority employees were laid off or demoted in rank.
On appeal, the Court of Appeals for the Sixth Circuit af-
firmed despite its conclusion that the District Court was
wrong in holding that the City's seniority system was not
bona fide. 679 F. 2d, at 551, n. 6. Characterizing the prin-
cipal isssue as "whether the district court erred in modifying
the 1980 Decree to prevent minority employment from being
affected disproportionately by unanticipated layoffs," id., at
551, the Court of Appeals concluded that the District Court
The City ultimately laid off 24 privates, three of whom were black.
Had the seniority system been followed, six blacks would have been among
the 24 privates laid off. Thus, three white employees were laid off as a
direct result of the District Court's order. The number of whites demoted
as a result of the order is not clear from the record before us.
82-206 & 82-229-OPINION
FIREFIGHTERS v. STOTTS
5
had acted properly. After determining that the decree was
properly approved in the first instance, the court held that
the modification was permissible under general contract prin-
ciples because the City "contracted" to provide "a substantial
increase in the number of minorities in supervisory positions"
and the layoffs would breach that contract. Id., at 561. Al-
ternatively, the court held that the District Court was au-
thorized to modify the decree because new and unforeseen
circumstances had created á hardship for one of the parties to
the decree. Id., at 562-563. Finally, articulating three
alternative rationales, the court rejected petitioners' argu-
ment that the modification was improper because it conflicted
with the City's seniority system, which was immunized from
Title VII attack under $ 703(h) of that Act, 42 U. S. C.
§ 2000e-2(h).
The City and the Union filed separate petitions for cer-
tiorari. The two petitions were granted, - U.S. -
(1983), and the cases were consolidated for oral argument.
II
We deal first with the claim that these cases are moot.
Respondents submit that the injunction entered in this case
was a preliminary injunction dealing only with the 1981 lay-
offs, that all white employees laid off as a result of the injunc-
tion were restored to duty only one month after their layoff,
and that those who were demoted have now been offered
back their old positions. Assertedly, the injunction no
longer has force or effect, and the cases are therefore moot.
For several reasons, we find the submission untenable.
First, the injunction on its face ordered "that the defend-
ants not apply the seniority policy proposed insofar as it will
decrease the percentage of black" employees in specified
classifications in the Department. The seniority policy was
the policy adopted by the City and contained in the collective
bargaining contract with the Union. The injunction was af-
firmed by the Court of Appeals and has never been vacated.
82-206 & 82-229-OPINION
6
FIREFIGHTERS v. STOTTS
It would appear from its terms that the injunction is still in
force and that unless set aside must be complied with in con-
nection with any future layoffs.
Second, even if the injunction itself applied only to the 1981
layoffs, the predicate for the so-called preliminary injunction
was the ruling that the consent decree must be construed to
mean and, in any event, must be modified to provide that lay-
offs were not to reduce the percentage of blacks employed in
the fire department. Furthermore, both the District Court
and the Court of Appeals, for different reasons, held that the
seniority provisions of the City's collective bargaining con-
tract must be disregarded for the purpose of achieving the
mandated result. These rulings remain undisturbed, and we
see no indication that respondents concede in urging
mootness that these rulings were in error and should be
reversed. To the contrary, they continue to defend them.
Unless overturned, these rulings would require the City to
obey the modified consent decree and to disregard its senior-
ity agreement in making future layoffs.
Accordingly, the inquiry is not merely whether the injune-
tion is still in effect, but whether the mandated modification
of the consent decree continues to have an impact on the the
parties such that the case remains alive.' We are quite un-
convinced-and it is the respondents' burden to convince us,
County of Los Angeles V. Davis, 440 U. S. 625, 631 (1979)-
that the modification of the decree and the pro tanto invalida-
tion of the seniority system is of no real concern to the City
because it will never again contemplate layoffs that if carried
out in accordance with the seniority system would violate the
"The Court of Appeals, recognizing that the District Court had done
more than temporarily preclude the City from applying its seniority sys-
tem, stated that the "principal issue" before it was "whether the district
court erred in modifying the 1980 Decree to prevent minority employment
from being affected disproportionately by unanticipated layoffs." 679
F. 2d, at 551.
82-206 & 82-229-OPINION
FIREFIGHTERS v. STOTTS
7
modified decree. For this reason alone, the case is not
moot.
Third, the judgment below will have a continuing effect on
the City's management of the Department in still another
way. Although the City has restored or offered to restore
to their former positions all white employees who were laid
off or demoted, those employees have not been made whole:
those who were laid off have lost a month's pay, as well as
seniority that has not been restored; and those employees
who "bumped down" and accepted lesser positions will also
have back-pay claims if their demotions were unjustified.
4 Of course if layoffs become necessary, both the City and respondents
will be affected by the modified decree, the City because it will be unable to
apply its seniority system. respondents because they will be given greater
protection than they would otherwise receive under that system. More-
over, the City will be immediately affected by the modification even though
no layoff is currently pending. If the lower courts' ruling is left intact, the
City will no longer be able to promise current or future employees that lay-
offs will be conducted solely on the basis of seniority. Against its will, the
City has been deprived of the power to offer its employees one of the bene-
fits that make employment with the City attractive to many workers. Se-
niority has traditionally been, and continues to be, a matter of great con-
cern to American workers. "[M]ore than any other provision of the
collective [bargaining] agreement
seniority affects the economic secu-
rity of the individual employee covered by its terms." Franks V. Bowman
Transportation Co., 424 U. S. 747, 766 (1976) (quoting Aaron. Reflections
on the Legal Nature and Enforceability of Seniority Rights, 75 Harv. L
Rev. 1532. 1535 (1962)). It is not idle speculation to suppose that the City
will be required to offer greater monetary compensation or fringe benefits
in order to attract and retain the same caliber and number of workers as it
could without offering such benefits were it completely free to implement
its seniority system. The extent to which the City's employment efforts
will be harmed by the loss of this "bargaining chip" may be difficult to
measure, but in view of the importance that American workers have tradi-
tionally placed on such benefits, the harm cannot be said to be insignificant.
Certainly, an employer's bargaining position is as substantially affected by
a decree precluding it from offering its employees the benefits of a senior-
ity system as it is by a state statute that provides economic benefits to
striking employees. Super Tire Engineering Co. V. McCorkle, 416 U. S.
115, 122-125 (1974).
82-206 & 82-229-OPINION
8
FIREFIGHTERS v. STOTTS
Unless the judgment of the Court of Appeals is reversed,
however, the layoffs and demotions were in accordance with
the law, and it would be quite unreasonable to expect the
City to pay out money to which the employees had no legal
right. Nor would it feel free to respond to the seniority
claims of the three white employees who, as the City points
out, lost competitive seniority in relation to all other individ-
uals who were not laid off, including those minority employ-
ees who would have been laid off but for the injunction.5 On
the other hand, if the Court of Appeals' judgment is re-
versed, the City would be free to take a wholly different posi-
tion with respect to backpay and seniority.
Undoubtedly, not much money and seniority are involved,
but the amount of money and seniority at stake does not de-
termine mootness. As long as the parties have a concrete
interest in the outcome of the litigation, the case is not moot
notwithstanding the size of the dispute. Powell V. McCor-
mack, 395 U. S. 486, 496-498 (1969). Moreover, a month's
pay is not a negligible item for those affected by the injune-
tion, and the loss of a month's competitive seniority may later
determine who gets a promotion, who is entitled to bid for
transfers or who is first laid off if there is another reduction
in force. These are matters of substance, it seems to us, and
enough so to foreclose any claim of mootness. Cf. Franks V.
Bowman Transportation Co., 424 U. S. 727, 756 (1976); Pow-
ell V. McCormack, supra, at 496-498; Bond V. Floyd, 385
U. S. 116, 128, n. 4 (1966).
In short, respondents successfully attacked the City's ini-
tial layoff plan and secured a judgment modifying the consent
"Since the District Court's order precludes the City from reducing the
percentage of black employees holding particular jobs in the event of a lay-
off or reduction in rank and since competitive seniority is the basis for
determining who will be laid off or bumped down, there is some question
whether, in light of the judgment below, the City could legally restore to
the laid-off employees the competitive seniority they had before the layoffs
without violating the order.
82-206 & 82-229-OPINION
FIREFIGHTERS v. STOTTS
9
decree, ordering the City to disregard its seniority policy,
and enjoining any layoffs that would reduce the percentage of
blacks in the Department. Respondents continue to defend
those rulings, which, as we have said, may determine the
City's disposition of back pay claims and claims for restora-
tion of competitive seniority that will affect respondents
themselves. It is thus unrealistic to claim that there is no
longer a dispute between the City and respondents with re-
spect to the scope of the consent decree. Respondents can-
not invoke the jurisdiction of a federal court to obtain a favor-
able modification of a consent decree and then insulate that
ruling from appellate review by claiming that they are no
longer interested in the matter, particularly when the modifi-
cation continues to have adverse effects on the other parties
to the action.
III
The issue at the heart of this case is whether the District
Court exceeded its powers in entering an injunction requir-
ing white employees to be laid off, when the otherwise appli-
cable seniority system' would have called for the layoff of
The present case is distinguishable from University of Texas V. Cam-
enisch, 451 U. S. 390 (1981). on which the dissent relies in that the defend-
ant in Camenisch was not a party to a decree that had been modified by the
lower court. When the injunction in that case expired, the defendant was
in all respects restored to its pre-injunction status. Here, the City is faced
with a modified consent decree that prevents it from applying its seniority
system in the manner that it chooses.
'Respondents contend that the memorandum of understanding between
the Union and the City is unenforceable under state law, citing Fulenwider
V. Firefighters Association Local Union 1784, 649 S. W. 2d 268 (Tenn.
1982). However, the validity of that memorandum under state law is un-
important for purposes of the issues presented in this case. First, the
Court of Appeals assumed that the memorandum was valid in reaching its
decision. 679 F. 2d, at 564, n. 20. Since we are reviewing that decision,
we are free to assume the same. Moreover, even if the memorandum is
unenforceable. the City's seniority system is still in place. The City uni-
laterally adopted the seniority system citywide in 1973. That policy was
incorporated into the memorandum of understanding with the Firefighters
82-206 & 82-229-OPINION
10
FIREFIGHTERS v. STOTTS
black employees with less seniority. We are convinced that
the Court of Appeals erred in resolving this issue and in af-
firming the District Court.
A
The Court of Appeals first held that the injunction did no
more than enforce the terms of the agreed-upon consent de-
cree. This specific-performance approach rests on the no-
tion that because the City was under a general obligation to
use its best efforts to increase the proportion of blacks on the
force, it breached the decree by attempting to effectuate a
layoff policy reducing the percentage of black employees in
the Department even though such a policy was mandated by
the seniority system adopted by the City and the Union. A
variation of this argument is that since the decree permitted
the District Court to enter any later orders that "may be nec-
essary or appropriate to effectuate the purposes of this de-
cree." 679 F. 2d, at 578 (Appendix), the City had agreed in
advance to an injunction against layoffs that would reduce
Union in 1975, but its citywide effect, including its application to the Fire
Department, continues irrespective of the status of the memorandum.
"The dissent's contention that the only issue before us is whether the
District Court 30 misapplied the standards for issuing a preliminary injune-
tion that it abused its discretion, post, at 9-10. overlooks what the District
Court did in this case. The District Court did not purport to apply the
standards for determining whether to issue a preliminary injunction. It
did not even mention them. Instead, having found that the consent decree
did "not contemplate what method would be used for a reduction in rank or
layoff." the court considered "whether or not
it should exercise its au-
thority to modify the consent decree
Petition for Certiorari, at
A73. As noted above, the Court of Appeals correctly recognized that
more was at stake than a mere preliminary injunction. stating that the
"principal issue" was "whether the district court erred in modifying the
1980 Decree to prevent minority employment from being affected dispro-
portionately by unanticipated layoffs." 679 F. 2d, at 551. By deciding
whether the District Court erred in interpreting or modifying the consent
decree 30 as to preclude the City from applying its seniority system, we do
not, as the dissent shrills, attempt to answer a question never faced by the
lower courts.
82-206 & 82-229-OPINION
FIREFIGHTERS v. STOTTS
11
the proportion of black employees. We are convinced, how-
ever, that both of these are improvident constructions of the
consent decree.
It is to be recalled that the "scope of a consent decree must
be discerned within its four corners, and not by reference to
what might satisfy the purposes of one of the parties to it"
or by what "might have been written had the plaintiff estab-
lished his factual claims and legal theories in litigation."
United States V. Armour & Co., 402 U.S. 673, 681-682
(1971). Here, as the District Court recognized, there is no
mention of layoffs or demotions within the four corners of the
decree; nor is there any suggestion of an intention to depart
from the existing seniority system or from the City's ar-
rangements with the Union. We cannot believe that the
parties to the decree thought that the City would simply dis-
regard its arrangements with the Union and the seniority
system it was then following. Had there been any intention
to depart from the seniority plan in the event of layoffs or de-
motions, it is much more reasonable to believe that there
would have been an express provision to that effect. This is
#
particularly true since the decree stated that it was not "in-
tended to conflict with any provisions" of the 1974 decree, 679
F. 2d, at 574 (Appendix), and since the latter decree ex-
pressly anticipated that the City would recognize seniority,
id., at 572. It is thus not surprising that when the City
anticipated layoffs and demotions, it in the first instance
faithfully followed its preexisting seniority system, plainly
having no thought that it had already agreed to depart from
it. It therefore cannot be said that the express terms of
the decree contemplated that such an injunction would be
entered.
The argument that the injunction was proper because it
carried out the purposes of the decree is equally unconvine-
ing. The decree announced that its purpose was "to remedy
past hiring and promotion practices" of the Department, id.,
at 575-576, and to settle the dispute as to the "appropriate
82-206 & 82-229-OPINION
12
FIREFIGHTERS v. STOTTS
and valid procedures for hiring and promotion," id., at 574.
The decree went on to provide the agreed-upon remedy, but
as we have indicated, that remedy did not include the dis-
placement of white employees with seniority over blacks.
Furthermore, it is reasonable to believe that the "remedy",
which it was the purpose of the decree to provide, would not
exceed the bounds of the remedies that are appropriate
under Title VII, at least absent some express provision to
that effect. As our cases have made clear, however, and as
will be reemphasized below, Title VII protects bona fide se-
niority systems, and it is inappropriate to deny an innocent
employee the benefits of his seniority in order to provide a
remedy in a pattern or practice suit such as this. We thus
have no doubt that the City considered its system to be valid
and that it had no intention of departing from it when it
agreed to the 1980 decree.
Finally, it must be remembered that neither the Union nor
the non-minority employees were parties to the suit when the
1980 decree was entered. Hence the entry of that decree
cannot be said to indicate any agreement by them to any of
its terms. Absent the presence of the Union or the non-mi-
nority employees and an opportunity for them to agree or dis-
agree with any provisions of the decree that might encroach
on their rights, it seems highly unlikely that the City would
purport to bargain away non-minority rights under the then-
existing seniority system. We therefore conclude that the
injunction does not merely enforce the agreement of the par-
ties as reflected in the consent decree. If the injunction is to
stand, it must be justified on some other basis.
B
The Court of Appeals held that even if the injunction is not
viewed as compelling compliance with the terms of the de-
cree, it was still properly entered because the District
Court had inherent authority to modify the decree when an
economic crisis unexpectedly required layoffs which, if car-
82-206 & 82-229-OPINION
FIREFIGHTERS v. STOTTS
13
ried out as the City proposed, would undermine the affirma-
tive action outlined in the decree and impose an undue hard-
ship on respondents. This was true, the court held, even
though the modification conflicted with a bona fide seniority
system adopted by the City. The Court of Appeals erred in
reaching this conclusion.'
Section 703(h) of Title VII provides that it is not an unlaw-
ful employment practice to apply different standards of com-
pensation, or different terms, conditions. or privileges of em-
ployment pursuant to a bona fide seniority system, provided
that such differences are not the result of an intention to dis-
The dissent seems to suggest. post, at 19-20. and n. 9, and JUSTICE
STEVENS expressly states, post, at 2, that Title VII is irrelevant in deter-
mining whether the District Court acted properly in modifying the consent
decree. However, this was Title VII litigation. and in affirming modifica-
tions of the decree, the Court of Appeals relied extensively on what it con-
sidered to be its authority under Title VII. That is the posture in which
the case comes to us. Furthermore, the District Court's authority to im-
pose a modification of a decree is not wholly dependent on the decree.
"[T]he District's Court's authority to adopt a consent decree comes only
from the statute which the decree is intended to enforce," not from the par-
ties' consent to the decree. System Federation No. 91 V. Wright, 364
U. S. 642. 651 (1961). In recognition of this principle, this Court in Wright
held that when a change in the law brought the terms of a decree into con-
flict with the statute pursuant to which the decree was entered. the decree
should be modified over the objections of one of the parties bound by the
decree. By the same token, and for the same reason, a district court can-
not enter a disputed modification of a consent decree in Title VII litigation
if the resulting order is inconsistent with that statute.
Thus, Title VII necessarily acted as a limit on the District Court's au-
thority to modify the decree over the objections of the City, the issue can-
not be resolved solely by reference to the terms of the decree and notions
of equity. Since, as we note at —, infra, Title VII precludes a district
court from displacing a non-minority employee with seniority under the
contractually established seniority system absent either a finding that the
seniority system was adopted with discriminatory intent or a determina-
tion that such a remedy was necessary to make whole a proven victim of
discrimination. the District Court was precluded from granting such relief
over the City's objection in this case.
82-206 & 82-229-OPINION
14
FIREFIGHTERS v. STOTTS
criminate because of race." It is clear that the City had a
seniority system, that its proposed layoff plan conformed to
that system, and that in making the settlement the City had
not agreed to award competitive seniority to any minority
employee whom the City proposed to lay off. The District
Court held that the City could not follow its seniority system
in making its proposed layoffs because its proposal was dis-
criminatory in effect and hence not a bona fide plan. Section
703(h), however, permits the routine application of a senior-
ity system absent proof of an intention to discriminate.
Teamsters V. United States, 431 U.S. 324, 352 (1977).
Here, the District Court itself found that the layoff proposal
was not adopted with the purpose or intent to discriminate on
the basis of race. Nor had the City in agreeing to the decree
admitted in any way that it had engaged in intentional dis-
crimination. The Court of Appeals was therefore correct in
disagreeing with the District Court's holding that the layoff
plan was not a bona fide application of the seniority system.
and it would appear that the City could not be faulted for fol-
lowing the seniority plan expressed in its agreement with the
Union. The Court of Appeals nevertheless held that the in-
junction was proper even though it conflicted with the senior-
ity system. This was error.
To support its position, the Court of Appeals first proposed
a "settlement" theory, i. e., that the strong policy favoring
voluntary settlement of Title VII actions permitted consent
decrees that encroached on seniority systems. But at this
stage in its opinion, the Court of Appeals was supporting the
proposition that even if the injunction was not merely enforc-
ing the agreed-upon terms of the decree, the District Court
= Section 703 (h) provides that "it shall not be an unlawful employment
practice for an employer to apply different standards of compensation, or
different terms, conditions. or privileges of employment pursuant to a bona
fide seniority or merit system
provided that such differences are not
the result of an intention to discriminate because of race, color, religion,
sex. or national origin
42 U. S. C. § 2000e-2(h).
82-206 & 82-229-OPINION
FIREFIGHTERS v. STOTTS
15
had the authority to modify the decree over the objection of
one of the parties. The settlement theory, whatever its
merits might otherwise be, has no application when there is
no "settlement" with respect to the disputed issue. Here,
the agreed-upon decree neither awarded competitive senior-
ity to the minority employees nor purported in any way to
depart from the seniority system.
A second ground advanced by the Court of Appeals in sup-
port of the conclusion that the injunction could be entered
notwithstanding its conflict with the seniority system was the
assertion that "[i]t would be incongruous to hold that the
use of the preferred means of resolving an employment dis-
crimination action decreases the power of a court to order re-
lief which vindicates the policies embodied within Title VII,
and 42 U. S. C. §§ 1981 and 1983." 679 F. 2d, at 566. The
court concluded that if the allegations in the complaint had
been proved, the District Court could have entered an order
overriding the seniority provisions. Therefore, the court
reasoned, "[t]he trial court had the authority to override the
Firefighter's Union seniority provisions to effectuate the pur-
pose of the 1980 Decree." 679 F. 2d, at 566.
The difficulty with this approach is that it overstates the
authority of the trial court to disregard a seniority system in
fashioning a remedy after a plaintiff has successfully proved
that an employer has followed a pattern or practice having
a discriminatory effect on black applicants or employees. If
individual members of a plaintiff class demonstrate that
they have been actual victims of the discriminatory practice,
they may be awarded competitive seniority and given their
rightful place on the seniority roster. This much is clear
from Franks V. Bowman Transportation Co., 424 U. S. 947
(1976) and Teamsters V. United States, 431 U. S. 324 (1977).
Teamsters, however, also made clear that mere membership
in the disadvantaged class is insufficient to warrant a senior-
ity award; each individual must prove that the discrimina-
82-206 & 82-229-OPINION
16
FIREFIGHTERS v. STOTTS
tory practice had an impact on him. 431 U. S., at 367-371.
Even when an individual shows that the discriminatory prac-
tice has had an impact on him, he is not automatically entitled
to have a non-minority employee laid off to make room for
him. He may have to wait until a vacancy occurs," and if
there are non-minority employees on layoff, the Court must
balance the equities in determining who is entitled to the
job. Teamsters, supra, 431 U.S., at 371-376. See also
Ford Motor Co. V. EEOC, 458 U. S. 219, 236-240 (1982).
Here, there was no finding that any of the blacks protected
from layoff had been a victim of discrimination and no award
of competitive seniority to any of them. Nor had the parties
in formulating the consent decree purported to identify any
specific employee entitled to particular relief other than those
listed in the exhibits attached to the decree. It therefore
seems to us that in light of Teamsters, the Court of Appeals
imposed on the parties as an adjunct of settlement something
that could not have been ordered had the case gone to trial
and the plaintiffs proved that a pattern or practice of dis-
crimination existed.
Our ruling in Teamsters that a court can award competitive
seniority only when the beneficiary of the award has actually
been a victim of illegal discrimination is consistent with the
policy behind § 706(g) of Title VII, which affects the remedies
available in Title VII litigation." That policy, which is to
u Lower courts have uniformly held that relief for actual victims does
not extend to bumping employees previously occupying jobs. See e. g.,
Patterson V. American Tobacco Co., 535 F. 2d 257, 267 (CA4), cert.
denied. 429 U. S. 920 (1976); Local 189, United Papermakers and Paper-
workers V. United States, 416 F. 2d 980, 988 (CA5 1969), cert. denied, 397
U.S. 919 (1970).
B Section 706(g) provides: "If the court finds that the respondent has in-
tentionally engaged in or is intentionally engaging in such unlawful employ-
ment practice charged in the complaint, the court may enjoin the respond-
ent from engaging in such unlawful employment practice, and order such
affirmative action as may be appropriate, which may include, but is not lim-
ited to, reinstatement or hiring of employees. with or without back pay
82-206 & 82-229-OPINION
FIREFIGHTERS v. STOTTS
17
provide make-whole relief only to those who have been actual
victims of illegal discrimination, was repeatedly expressed by
the sponsors of the Act during the congressional debates.
Opponents of the legislation that became Title VII charged
that if the bill were enacted, employers could be ordered to
hire and promote persons in order to achieve a racially-bal-
anced work force even though those persons had not been
victims of illegal discrimination." Responding to these
charges, Senator Humphrey explained the limits on a court's
remedial powers as follows:
"No court order can require hiring, reinstatement, ad-
mission to membership, or payment of back pay for any-
one who was not fired, refused employment or advance-
ment or admission to a union by an act of discrimination
forbidden by this title. This is stated expressly in the
last sentence of Section 707(e) [enacted without relevant
change as § 706(g)]
Contrary to the allegations of
some opponents of this title, there is nothing in it that
will give any power to the Commission or to any court to
require
firing
of employees in order to meet
a racial 'quota' or to achieve a certain racial balance.
That bugaboo has been brought up a dozen times; but is
nonexistent." 110 Cong. Rec. 6549 (remarks of Sen.
Humphrey).
or any other equitable relief as the court deems appropriate.
No
order of the court shall require the admission or reinstatement of an indi-
vidual as a member of a union or the hiring, reinstatement, or promotion of
an individual as an employee, or the payment to him of any back pay, if
such individual was refused admission, suspended, or expelled. or was re-
fused employment or advancement or was suspended or discharged for any
reason other than discrimination on account of race, color, religion, sex, or
national origin or in violation of § 704(a) of this title." 42 U.S. C.
§ 2000e-5(g).
B See H. R. Rep. No. 914, 88th Cong., 1st Sess. 72-73 (minority report);
110 Cong. Rec. 4764 (remarks of Sen. Ervin and Sen. Hill); id., at 5092.
7418-20 (remarks of Sen Robertson); id, at 8500 (remarks of Sen.
Smathers); id., at 9034-35 (remarks of Sen. Stennis and Sen. Tower).
82-206 & 82-229-OPINION
18
FIREFIGHTERS v. STOTTS
An interpretative memorandum of the bill entered into the
Congressional Record by Senators Clark and Case 14 likewise
made clear that a court was not authorized to give preferen-
tial treatment to non-victims. "No court order can require
hiring, reinstatement, admission to membership, or payment
of back pay for anyone who was not discriminated against in
violation of [Title VII]. This is stated expressly in the last
sentence of section [706(g)].
" Id., at 7214.
Similar assurances concerning the limits on a court's au-
thority to award make-whole relief were provided by sup-
porters of the bill throughout the legislative process. For
example, following passage of the bill in the House, its Re-
publican House sponsors published a memorandum describ-
ing the bill. Referring to the remedial powers given the
courts by the bill, the memorandum stated: "Upon conclusion
of the trial, the federal court may enjoin an employer or labor
organization from practicing further discrimination and may
order the hiring or reinstatement of an employee or the ac-
ceptance or reinstatement of a union member. But Title VII
does not permit the ordering of racial quotas in business or
unions
Id., at 6566 (emphasis added). In like man-
ner, the principal Senate sponsors, in a bi-partisan news let-
ter delivered during an attempted filibuster to each senator
supporting the bill, explained that "[u]nder title VII, not
even a Court, much less the Commission, could order racial
quotas or the hiring, reinstatement, admission to member-
ship or payment of back pay for anyone who is not discrimi-
nated against in violation of this title." Id., at 14465."
"Senators Clark and Case were the bipartisan "captains" of Title VII.
We have previously recognized the authoritative nature of their interpreta-
tive memorandum. American Tobacco Co. V. Patterson, 456 U. S. 63, 73
(1982); Teamsters, supra, 431 U.S., at 352.
"The dissent suggests that Congress abandoned this policy in 1972
when it amended I 706(g) to make clear that a court may award "any other
equitable relief" that the court deems appropriate. Post, at 27-29. As
support for this proposition the dissent notes that prior to 1972, some fed-
eral courts had provided remedies to those who had not proven that they
82-206 & 82-229-OPINION
FIREFIGHTERS v. STOTTS
19
The Court of Appeals holding that the District Court's
order was permissible as a valid Title VII remedial order ig-
nores not only our ruling in Teamsters but the policy behind
§ 706(g) as well. Accordingly, that holding cannot serve as a
basis for sustaining the District Court's order."
were victims. It then observes that in a section-by-section analysis of the
bill, its sponsors stated that "in any areas where a specific contrary inten-
tion is not indicated, it was assumed that the present case law as developed
by the courts would continue to govern the applicability and construction of
Title VII." 118 Cong. Rec. 7167 (1972).
We have already rejected, however, the contention that Congress in-
tended to codify all existing Title VII decisions when it made this brief
statement. See Teamsters, supra, 431 U.S., at 354, n. 39. Moreover.
the statement on its face refers only to those sections not changed by the
1972 amendments. It cannot serve as a basis for discerning the effect of
the changes that were made by the amendment. Finally, and of most
importance, in 2 later portion of the same section-by-section analysis.
the sponsors explained their view of existing law and the effect that the
amendment would have on that law.
"The provisions of this subsection are intended to give the courts wide
discretion exercising their equitable powers to fashion the most complete
relief possible. In dealing with the present § 706(g) the courts have
stressed that the scope of relief under that section of the Act is intended to
make victims of unlawful discrimination whole, and that the attainment of
this objective rests not only upon the elimination of the particular unlawful
employment practice complained of, but also requires that persons ag-
grieved by the consequences and effects of the unlawful employment prac-
tice be, so far as possible, restored to a position where they would have
been were it not for the unlawful discrimination." Id., at 7168 (emphasis
added).
As we noted in Franks, the 1972 amendments evidence "emphatic con-
firmation that federal courts are empowered to fashion such relief as the
particular circumstances of a case may require to effect restitution, making
whole insofar as possible the victims of racial discrimination." 424 U.S.,
at 764 (emphasis added).
"Neither does it suffice to rely on the District Court's remedial author-
ity under §§ 1981 and 1983. Under those sections relief is authorized only
when there is proof or admission of intentional discrimination. Washing-
ton V. Davis, 426 U.S. 229 (1976); General Building Contractors Associa-
tion v. Pennsylvania, 458 U. S. 375 (1982). Neither precondition was sat-
isfied here.
82-206 & 82-229-OPINION
20
FIREFIGHTERS v. STOTTS
Finally, the Court of Appeals was of the view that the Dis-
trict Court ordered no more than that which the City unilat-
erally could have done by way of adopting an affirmative ac-
tion program. Whether the City, a public employer, could
have taken this course without violating the law is an issue
we need not decide. The fact is that in this case the City
took no such action and that the modification of the decree
was imposed over its objection."
We thus are unable to agree either that the order entered
by the District Court was a justifiable effort to enforce the
terms of the decree to which the City had agreed or that it
was a legitimate modification of the decree that could be
imposed on the City without its consent. Accordingly, the
judgment of the Court of Appeals is reversed.
It is so ordered.
19 The Court of Appeals also suggested that under United States V. Swift
& Co., 286 U. S. 106, 114-115 (1932), the decree properly was modified
pursuant to the District Court's equity jurisdiction. But Swift cannot be
read as authorizing a court to impose a modification of a decree that runs
counter to statutory policy, see n. 9, supra, here §§ 703(h) and 706(g) of
Title VII.
SUPREME COURT OF THE UNITED STATES
Nos. 82-206 AND 82-229
FIREFIGHTERS LOCAL UNION NO. 1784,
PETITIONER
82-206
U.
CARL W. STOTTS ET AL.
MEMPHIS FIRE DEPARTMENT ET AL.,
PETITIONERS
82-229
v.
CARL W. STOTTS, ETC., ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 12, 1984]
JUSTICE O'CONNOR, concurring.
The various views presented in the opinions in this case re-
flect the unusual procedural posture of the case and the diffi-
culties inherent in allocating the burdens of recession and fis-
cal austerity. I concur in the Court's treatment of these
difficult issues, and write separately to reflect my under-
standing of what the Court holds today.
I
To appreciate the Court's disposition of the mootness issue,
it is necessary to place this case in its complete procedural
perspective. The parties agree that the District Court and
the Court of Appeals were presented with a "case or contro-
versy" in every sense contemplated by Art. III of the Con-
stitution. Respondents, as trial-plaintiffs, initiated the dis-
pute, asking the District Court preliminarily to enjoin the
City from reducing the percentage of minority employees in
various job classifications within the Fire Department. Pe-
82-206 & 82-229-CONCUR
2
FIREFIGHTERS v. STOTTS
titioners actively opposed that motion, arguing that respond-
ents had waived any right to such relief in the consent decree
itself and, in any event, that the reductions-in-force were
bona fide applications of the citywide seniority system.
When the District Court held against them, petitioners fol-
lowed the usual course of obeying the injunction and pros-
ecuting an appeal. They were, however, unsuccessful on
that appeal.
Respondents now claim that the case has become moot on
certiorari to this Court. The recession is over, the employ-
ees who were laid off or demoted have been restored to their
former jobs, and petitioners apparently have no current need
to make seniority-based layoffs. The res judicata effects of
the District Court's order can be eliminated by the Court's
usual practice of vacating the decision below and remanding
with instructions to dismiss. See United States V. Munsing-
wear, Inc., 340 U. S. 36, 39 (1950). Thus, respondents con-
clude that the validity of the preliminary injunction is no
longer an issue of practical significance and the case can be
dismissed as moot. See Brief for Respondents 26-28.
I agree with the Court that petitioners and respondents
continue to wage a controversy that would not be resolved by
merely vacating the preliminary injunction. As a result of
the District Court's order, several black employees have
more seniority for purposes of future job decisions and enti-
tlements than they otherwise would have under the city's se-
niority system. This added seniority gives them an in-
creased expectation of future promotion, an increased
priority in bidding on certain jobs and job transfers, and an
increased protection from future layoffs. These individuals,
who are members of the respondent class, have not waived
their increased seniority benefits. Therefore, petitioners
have a significant interest in determining those individuals'
claims in the very litigation in which they were originally
82-206 & 82-229-CONCUR
FIREFIGHTERS v. STOTTS
3
won. As the Court of Appeals noted, if petitioner-employer
does not vigorously defend the implementation of its senior-
ity system, it will have to cope with deterioration in em-
ployee morale, labor unrest, and reduced productivity. See
Stotts V. Memphis Fire Department, 679 F. 2d 541, 555, and
n. 12 (CA6 1982); see also Ford Motor Co. V. EEOC, 458
U. S. 219, 229 (1982). Likewise, if petitioner-union accedes
to discriminatory employment actions, it will lose both the
confidence of its members and bargaining leverage in the
determination of who should ultimately bear the burden of
the past (and future) fiscal shortages. See ante, at 7, and n.
5. Perhaps this explains why, in respondents' words, "the
city and union have expended substantial time and effort
in [an] appeal which can win no possible relief for the individ-
uals on whose behalf it has ostensibly been pursued." Brief
for Respondents 44.
When collateral effects of a dispute remain and continue to
affect the relationship of litigants,¹ the case is not moot.
See, e. g., Franks V. Bowman Transportation Co., 424 U. S.
747, 755-757 (1976); Super Tire Engineering Co. V. McCorkle,
416 U.S. 115, 121-125 (1974); Gray V. Sanders, 372 U. S.
368, 375-376 (1963). In such cases, the Court does not hesi-
tate to provide trial defendants with "a definitive disposition
of their objections" on appeal, Pasadena City Bd. of Educa-
tion V. Spangler, 427 U. S. 424, 440 (1976), because vacating
This case is distinguishable from University of Texas V. Camenisch,
451 U. S. 390 (1981), where the Court found that a petitioner's objections
to a preliminary injunction, which required it to pay for the respondent's
sign-language interpreter, were moot. In Camenisch, the propriety of is-
suing the preliminary injunction was really no longer of concern to the par-
ties, and the real issue-who should pay for the interpreter-was better
handled in a separate proceeding. Id., at 394-398. In this case, because
the parties are in an ongoing relationship, they have a continuing interest
in the propriety of the preliminary relief itself. Camenisch expressly
distinguishes cases like this one, where the parties retain "a legally cogni-
zable interest in the determination whether the preliminary injunction was
properly granted[. Id., at 394; see also id., at 397, and n. 2
82-206 & 82-229-CONCUR
4
FIREFIGHTERS v. STOTTS
the res judicata effects of the decision would not bring the
controversy to a close. See Note, Mootness on Appeal in the
Supreme Court, 83 Harv. L. Rev. 1672, 1677-1687 (1970).
As the Court wisely notes, "[litigants] cannot invoke the ju-
risdiction of a federal court
and then insulate [the effects
of that court's] ruling from appellate review by claiming that
they are no longer interested in the matter." Ante, at 9.
II
My understanding of the Court's holding on the merits also
is aided by a review of the place this case takes in the history
of the parties' litigation. The city entered into a consent de-
cree with respondents, agreeing to certain hiring and promo-
tional goals, backpay awards, and individual promotions.
The city was party both to another consent decree and to an
agreement with the union concerning application of the se-
niority system at the time it made these concessions. Re-
spondents did not seek the union's participation in the negoti-
ation of their consent decree with the city, did not include the
seniority system as a subject of negotiation, and waived all
rights to seek further relief. When the current dispute
arose, the District Court rejected respondents' allegation
that the seniority system had been adopted or applied with
any discriminatory animus. It held, however, that "modifi-
cation" was appropriate because of the seniority system's dis-
criminatory effects. Under these circumstances, the Court's
conclusion that the District Court had no authority to order
maintenance of racial percentages in the Department is, in
my view, inescapable.
Had respondents presented a plausible case of discrimina-
tory animus in the adoption or application of the seniority
system, then the Court would be hard pressed to consider en-
try of the preliminary injunction an abuse of discretion. But
that is not what happened here. To the contrary, the Dis-
trict Court rejected the claim of discriminatory animus, and
the Court of Appeals did not disagree. Furthermore, the
82-206 & 82-229-CONCUR
FIREFIGHTERS u STOTTS
5
District Court's erroneous conclusion to the contrary, main-
tenance of racial balance in the Department could not be jus-
tified as a correction of an employment policy with an unlaw-
ful disproportionate impact. Title VII affirmatively protects
bona fide seniority systems, including those with discrimina-
tory effects on minorities. See American Tobacco Co. V.
Patterson, 456 U.S. 63, 65 (1982); Teamsters V. United
States, 431 U. S. 324, 352 (1977).
Therefore, the preliminary injunction could only be justi-
fied as a reasonable interpretation of the consent decree or as
a permissible exercise of the District Court's authority to
modify that consent decree. Neither justification was
present here. For the reasons stated by the Court, ante, at
11-13, and JUSTICE STEVENS, post, at 3, the consent decree
itself cannot fairly be interpreted to bar use of the seniority
policy or to require maintenance of racial balances previously
achieved in the event layoffs became necessary. Nor can a
district court unilaterally modify a consent decree to adjust
racial imbalances or to provide retroactive relief that abro-
gates legitimate expectations of other employees and appli-
cants. See Steelworkers V. Weber, 443 U.S. 193, 205-207
(1979); Pasadena City Bd. of Education V. Spangler, supra,
at 436-438. A court may not grant preferential treatment to
any individual or group simply because the group to which
they belong is adversely affected by a bona fide seniority sys-
tem. Rather, a court may use its remedial powers, including
its power to modify a consent decree, only to prevent future
violations and to compensate identified victims of unlawful
discrimination. See Teamsters V. United States, supra, at
367-371; Milliken V. Bradley, 433 U. S. 267, 280-281 (1977);
see also University of California Regents V. Bakke, 438
U. S. 265, 307-309, and n. 44 (1978) (POWELL, J., announcing
the judgment of the Court). Even when its remedial powers
are properly invoked, a district court may award preferential
treatment only after carefully balancing the competing inter-
82-206 & 82-229-CONCUR
6
FIREFIGHTERS u STOTTS
ests of discriminatees, innocent employees, and the em-
ployer. See Ford Motor Co. V. EEOC, 458 U.S., at 239-
240; Teamsters V. United States, supra, at 371-376. In
short, no matter how significant the change in circumstance,
a district court cannot unilaterally modify a consent decree to
adjust racial balances in the way the District Court did here.'
To be sure, in 1980, respondents could have gone to trial
and established illegal discrimination in the Department's
past hiring practices, identified its specific victims, and possi-
bly obtained retroactive seniority for those individuals. Al-
ternatively, in 1980, in negotiating the consent decree, re-
spondents could have sought the participation of the union,3
negotiated the identities of the specific victims with the union
and employer, and possibly obtained limited forms of retroac-
tive relief. But respondents did none of these things. They
chose to avoid the costs and hazards of litigating their claims.
They negotiated with the employer without inviting the
union's participation. They entered into a consent decree
without establishing any specific victim's identity. And,
most importantly, they waived their right to seek further re-
lief. To allow respondents to obtain relief properly reserved
for only identified victims or to prove their victim status now
would undermine the certainty of obligation that is condition
precedent to employers' acceptance of, and unions' consent
to, employment discrimination settlements. See Steelwork-
ers V. Weber, supra, at 211 (BLACKMUN, J., concurring) (em-
ployers enter into settlements to avoid back pay responsibil-
"Unlike the dissenters and JUSTICE STEVENS, I find persuasive the
Court's reasons for holding Title VII relevant to analysis of the modifica-
tion issue, see ante, at 13-14, and n. 12, and the Court's application of Title
VII's provisions to the facts of the present controversy.
""Absent a judicial determination,
the Company
cannot alter
the collective-bargaining agreement without the Union's consent." W.R.
Grace & Co. V. Local 759, 461 U.S. - (1983). Thus, if innocent
employees are to be required to make any sacrifices in the final consent
decree, they must be represented and have had full participation rights in
the negotiation process.
82-206 & 82-229-CONCUR
FIREFIGHTERS v. STOTTS
7
ities and to reduce disparate impact claims). Modifications
requiring maintenance of racial balance would not encourage
valid settlements of employment discrimination cases.
They would impede them. Thus, when the Court states that
this preferential relief could not have been awarded even had
this case gone to trial, see ante, at 17, it is holding respond-
ents to the bargain they struck during the consent decree ne-
gotiations in 1980 and thereby furthering the statutory policy
of voluntary settlement. See Carson V. American Brands,
Inc., 450 U. S. 79, 88, and n. 14 (1981).
In short, the Court effectively applies the criteria tradi-
tionally applicable to the review of preliminary injunctions.
See Doran V. Salem Inn, Inc., 422 U.S. 922, 931 (1975).
When the Court disapproves the preliminary injunction is-
sued in this case, it does so because respondents had no
chance of succeeding on the merits of their claim. The Dis-
trict Court had no authority to order the Department to
maintain its current racial balance or to provide preferential
treatment to blacks. It therefore abused its discretion. On
this understanding, I join the opinion and judgment rendered
by the Court today.
The policy favoring voluntary settlement does not, of course, counte-
nance unlawful discrimination against existing employees or applicants.
See McDonald V. Santa Fe Trail Transportation Co., 427 U. S. 273, 278-
296 (1976) (Title VII and 42 U. S. C. I 1981 prohibit discrimination against
whites as well as blacks); Steelworkers V. Weber, 443 U. S. 193, 208-209
(1979) (listing attributes that would make affirmative action plan impermis-
sible); of id., at 215 (BLACKMUN, J., concurring) ("seniority is not in issue
because the craft training program is new and does not involve an abroga-
tion of pre-existing seniority rights").
SUPREME COURT OF THE UNITED STATES
Nos. 82-206 AND 82-229
FIREFIGHTERS LOCAL UNION NO. 1784,
PETITIONER
82-206
v.
CARL W. STOTTS ET AL.
MEMPHIS FIRE DEPARTMENT, ET AL.,
PETITIONERS
82-229
:2
CARL W. STOTTS, ETC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 12, 1984]
JUSTICE STEVENS, concurring in the judgment.
The District Court's preliminary injunction remains re-
viewable because of its continuing effect on the city's person-
nel policies. That injunction states that the city may "not
apply the seniority policy proposed insofar as it will decrease
the percentage of black [persons] in the Memphis Fire De-
partment." Thus, if the city faces a need to lay off Fire De-
partment employees in the future, it may not apply its senior-
ity system. I cannot say that the likelihood that the city will
once again face the need to lay off Fire Department employ-
ees is so remote that the city has no stake in the outcome of
this litigation."
'See also supra. at 3-4, n. 6. There were actually three injunctive or-
ders entered by the District Court, each applying to different positions in
the Memphis Fire Department. All use substantially the same language.
'In this respect, this litigation is similar to City of Los Angeles V. Ly-
one, 461 U.S.
,
- (1983). There. an injunction against the use of
chokeholds by the city's police department was held not to be moot despite
82-206 & 82-229-CONCUR
2
FIREFIGHTERS u. STOTTS
In my judgment, the Court's discussion of Title VII is
wholly advisory. This case involves no issue under Title
VII; it only involves the administration of a consent decree.
The District Court entered the consent decree on April 25,
1980, after having given all parties, including all of the peti-
tioners in this Court, notice and opportunity to object to its
entry. The consent decree, like any other final judgment of
a district court, was immediately appealable. See Carson V.
American Brands, Inc., 450 U. S. 79 (1981). No appeal was
taken. Hence, the consent decree became a final judgment
binding upon those who had had notice and opportunity to ob-
ject: it was and is a legally enforceable obligation. If the
consent decree justified the District Court's preliminary in-
junction, then that injunction should be upheld irrespective of
whether Title VII would authorize a similar injunction.'
Therefore, what governs this case is not Title VII, but the
consent decree.
the fact that the police board had instituted a voluntary moratorium of in-
definite duration on chokeholds. since the likelihood that the city might one
day wish to return to its former policy was not so remote as to moot the
case. See also Carroll V. Princess Anne, 393 U. S. 175, 178-179 (1968).
The Court seems to suggest that a consent decree cannot authorize
anything that would would not constitute permissible relief under Title
VII. Ante. at 15-16. I share JUSTICE BLACKMUN'S doubts as to whether
this is the correct test. See post. at 20. n. 9. 22-24. The provisions on
which the Court relies. 42 U. S. C. §§ 2000e-2(h) and 2000e-5(g). merely
state that certain seniority arrangements do not violate Title VII, and de-
fine the limits of appropriate relief for a Title VII violation, respectively.
They do not place any limitations on what the parties can agree to in a con-
sent decree. The Court does not suggest that any other statutory provi-
sion was violated by the District Court. The Court itself acknowledges
that the administration of a consent decree must be tested by the four cor-
ners of the decree, and not by what might have been ordered had respond-
ents prevailed on the merits, ante, at 11, which makes its subsequent dis-
cussion of Title VII all the more puzzling.
If the decree had been predicated on a finding that the city had vio-
lated Title VII, the remedial policies underlying that Act might be rele-
vant, at least as an aid to construction of the decree. But since the settle-
82-206 & 82-229-CONCUR
FIREFIGHTERS u STOTTS
3
There are two ways in which the District Court's injunc-
tion could be justified. The first is as a construction of the
consent decree. If the District Court had indicated that it
was merely enforcing the terms of the consent decree, and
had given some indication of what portion of that decree it
was interpreting, I might be hard pressed to consider the en-
try of the injunction an abuse of discretion. However, the
District Court never stated that it was construing the decree,
nor did it provide even a rough indication of the portion of the
decree on which it relied. There is simply nothing in the
record to justify the conclusion that the injunction was based
on a reasoned construction of the consent decree.⁵
The second justification that could exist for the injunction
is that the District Court entered it based on a likelihood that
it would modify the decree, or as an actual modification of the
decree. As JUSTICE BLACKMUN explains, post, at 15, 19,
ment expressly disavowed any such finding, the Court's exposition of Title
VII law is unnecessary.
'JUSTICE BLACKMUN explains, post. at 16-19, how the consent decree
could be construed to justify the injunction. I find nothing in the record
indicating that this is the theory the District Court actually employed.
While I recognize that preliminary injunction proceedings are of ten harried
affairs and that district courts need substantial leeway in resolving them. it
nevertheless remains the case that there must be something in the record
explaining the reasoning of the District Court before it may be affirmed.
That is the purpose of Fed. Rule Civ. P. 65(d)'s requirement that "[e]very
order granting an injunction and every restraining order shall set forth the
reasons for its issuance
It seems likely that this second justification was the actual basis for the
entry of the injunction. The District Court's phrasing of the question it
faced was whether "it should exercise its authority to modify a Consent De-
cree," App. to Pet. for Cert. A73. The focus of the Court of Appeals' opin-
ion reviewing the preliminary injunction was the "three grounds upon
which a Consent Decree may later be modified." Stotts V. Memphis Fire
Dept., 679 F. 2d 541. 560 (CA6 1981). Most important, the practical effect
of the District Court's action indicates that it should be treated as a modifi-
cation. Until it is reviewed, it will effectively govern the procedure that
the city must follow in any future layoffs, and that procedure is signifi-
82-206 & 82-229-CONCUR
4
FIREFIGHTERS v. STOTTS
modification would have been appropriate if respondents had
demonstrated the presence of changed circumstances. How-
ever, the only "circumstance" found by the District Court
was that the city's proposed layoffs would have an adverse
effect on the level of black employment in the fire depart-
ment. App. to Pet. for Cert. A73-A76. This was not a
"changed" circumstance; the percentage of blacks employed
by the Memphis Fire Department at the time the decree was
entered meant that even then it was apparent that any future
seniority-based layoffs would have an adverse effect on
blacks. Thus the finding made by the District Court was
clearly insufficient to support a modification of the consent
decree. or a likelihood thereof.
Accordingly, because I conclude that the District Court
abused its discretion in entering the preliminary injunction at
issue here, I concur in the judgment.
cantly different from the seniority system in effect when the consent de-
cree was negotiated and signed.
SUPREME COURT OF THE UNITED STATES
Nos. 82-206 AND 82-229
FIREFIGHTERS LOCAL UNION NO. 1784.
PETITIONER
S2-206
2:
CARL W. STOTTS ET AL.
MEMPHIS FIRE DEPARTMENT ET AL.,
PETITIONERS
82-229
2:
CARL W. STOTTS, ETC., ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 12, 1984]
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and
JUSTICE MARSHALL join, dissenting.
Today's opinion is troubling less for the law it creates than
for the law it ignores. The issues in these cases arose out of
a preliminary injunction that prevented the city of Memphis
from conducting a particular layoff in a particular manner.
Because that layoff has ended, the preliminary injunction no
longer restrains any action that the city wishes to take. The
Court nevertheless rejects respondents' claim that these
cases are moot because the Court concludes that there are
continuing effects from the preliminary injunction and that
these create a continuing controversy. The Court appears
oblivious, however, to the fact that any continuing legal con-
sequences of the preliminary injunction would be erased by
simply vacating the Court of Appeals' judgment, which is this
Court's longstanding practice with cases that become moot.
Having improperly asserted jurisdiction, the Court then
ignores the proper standard of review. The District Court's
82-206 & 82-229-DISSENT
2
FIREFIGHTERS v. STOTTS
action was a preliminary injunction reviewable only on an
abuse of discretion standard: the Court treats the action as a
permanent injunction and decides the merits, even though
the District Court has not yet had an opportunity to do so.
On the merits, the Court ignores the specific facts of these
cases that make inapplicable the decisions on which it relies.
Because. in my view, the Court's decision is demonstrably in
error, I respectfully dissent.
I
Mootness. "The usual rule in federal cases is that an ac-
tual controversy must exist at stages of appellate or certio-
rari review and not simply at the date the action is initiated. 14
Roe V. Wade. 410 U. S. 113, 125 (1973). In the absence of a
live controversy, the constitutional requirement of a "case"
or "controversy," see U. S. Const., Art. III, deprives a fed-
eral court of jurisdiction. Accordingly, a case, although live
at the start, becomes moot when intervening acts destroy the
interest of a party to the adjudication. DeFunis V.
Odegaard, 416 U. S. 312 (1974). In such a situation, the fed-
eral practice is to vacate the judgment and remand the case
with a direction to dismiss. United States V. Munsingwear,
Inc., 340 U. S. 36, 39 (1950).
Application of these principles to the present cases is
straightforward. The controversy underlying the suits is
whether the city of Memphis' proposed layoff plan violated
the 1980 consent decree. The District Court granted a pre-
liminary injunction limiting the proportion of Negroes that
the city could layoff as part of its efforts to solve its fiscal
problems. Because of the injunction, the city chose instead
to reduce its workforce according to a modified layoff plan
under which some whites were laid off despite their greater
seniority over the blacks protected by the preliminary injunc-
tion. Since the preliminary injunction was entered, how-
ever, the layoffs all have terminated and the city has taken
back every one of the workers laid off pursuant to the modi-
82-206 & 82-229-DISSENT
FIREFIGHTERS t. STOTTS
3
fied plan. Accordingly, the preliminary injunction no longer
restrains the city's conduct, and the adverse relationship be-
tween the opposing parties concerning its propriety is gone.
A ruling in this situation thus becomes wholly advisory. and
ignores the basic duty of this Court "to decide actual con-
troversies by a judgment which can be carried into effect,
and not to give opinions upon moot questions or abstract
propositions, or to declare principles or rules of law which
cannot affect the matter in issue in the case before it.'" Oil
Workers V. Missouri, 361 U. S. 363. 367 (1960), quoting
Mills V. Green. 159 U. S. 651, 653 (1895). The proper dispo-
sition. therefore, is to vacate the judgment and remand the
cases with directions to dismiss them as moot.
The purpose of vacating a judgment when it becomes moot
while awaiting review is to return the legal relationships of
the parties to their status prior to initiation of the suit. The
Court explained in Munsingwear that vacating a judgment
"clears the path for future relitigation of the issues be-
tween the parties and eliminates a judgment. review of
which was prevented through happenstance. When
that procedure is followed. the rights of all parties are
preserved: none is prejudiced by a decision which in the
statutory scheme was only preliminary." 340 U. S., at
40.
Were the Court to follow this procedure in these cases, as
clearly it should. the legal rights of the parties would return
to their status prior to entry of the preliminary injunction.
In the event that future layoffs became necessary, respond-
ents would have to seek a new injunction based on the facts
presented by the new layoffs. and petitioners could oppose
the new injunction on any and all grounds, including argu-
ments similar to those made in these cases.
Struggling to find a controversy on which to base its juris-
diction, the Court offers a variety of theories as to why these
cases remain live. First, it briefly suggests that the cases
are not moot because the preliminary injunction continues in
82-206 & 82-229-DISSENT
4
FIREFIGHTERS 2'. STOTTS
effect and would apply in the event of a future layoff. My
fundamental disagreement with this contention is that it in-
correctly interprets the preliminary injunction.¹ Even if the
Court's interpretation of the preliminary injunction is cor-
rect. however, it is nonetheless true that if the judgment in
these cases were vacated, the preliminary injunction would
not apply to a future layoff.
The Court's second argument against mootness is remark-
able. The Court states that even if the preliminary injune-
tion applies only to the 1981 layoffs, the "rulings" that formed
the "predicate" for the preliminary injunction "remain undis-
turbed." Ante. at 6. The Court then states:
"[W]e see no indication that respondents concede in urg-
ing mootness that these rulings were in error and should
be reversed. To the contrary, they continue to defend
them. Unless overturned. these rulings would require
the City to obey the modified consent decree and to dis-
regard its seniority agreement in making future layoffs."
Ibid.
Two aspects of this argument provoke comment. It is
readily apparent that vacating the judgment in these cases
1 It is readily apparent from the terms of the preliminary injunction that
it applied only to the layoffs contemplated in May 1981. and that the union
would have to seek a new injunction if it sought to stop layoffs contem-
plated in the future. The preliminary injunction applied only to the posi-
tions-beutenant, driver, inspector, and private-in which demotions or
layoffs were then planned. It makes little sense to interpret this prelimi-
nary injunction to apply to future layoffs that might involve different posi-
tions. In addition, the minimum percentage of Negroes that the city was
to retain was that of blacks "presently employed" in those positions. a
standard that has no pertinence if applied to future layoffs when minority
employment levels would be higher than in 1981. App. to Pet. for Cert. in
No. 82-229. P. ATT. Finally, the reasoning of the District Court in grant-
ing the preliminary injunction was based expressly on "the effect of these
lay-offs and reductions in rank." Id., at A78 (emphasis supplied). Thus,
it is clear that that the District Court viewed the preliminary injunction as
a response to the problem presented by the May 1981 layoffs rather than to
the problem of layoffs generally.
82-206 & 82-229-DISSENT
FIREFIGHTERS L. STOTTS
5
would also vacate whatever "rulings" formed the "predicate"
for that judgment. There simply is no such thing as a "rul-
ing" that has a life independent of the judgment in these
cases and that would bind the city in a future layoff if the
judgment in these cases were vacated. The Court's argu-
ment, therefore, is nothing more than an oxymoronic sugges-
tion that the judgment would somehow have a res judicata
effect even if it was vacated-a complete contradiction in
terms.
Moreover, and equally remarkable, is the notion that re-
spondents must concede that the rulings below were in error
before they can argue that the case is moot. To my knowl-
edge. there is nothing in this Court's mootness doctrine that
requires a party urging mootness to concede the lack of merit
in his case. Indeed, a central purpose of mootness doctrine
is to avoid an unnecessary ruling on the merits.
The Court's third argument against mootness focuses on
the wages and seniority lost by white employees during the
period of their layoffs-and it is undisputed that some such
pay and seniority were lost. The Court does not suggest.
however, that its decision today will provide the affected
workers with any backpay or seniority. It is clear that any
such backpay or retroactive seniority for laidoff workers
would have to come from the city, not from respondents.
But the city and the union are both petitioners here, not ad-
versaries, and respondents have no interest in defending the
city from liability to the union in a separate proceeding. For
that reason, these suits involve the wrong adverse parties for
resolution of any issues of backpay and seniority.
In the event that the laidoff firefighters were to bring a successful ac-
tion for backpay against the city, the city would have no claim for re-
imbursement against respondents for securing an allegedly erroneous in-
junction. No bond was posted for the preliminary injunction. and "[a]
party injured by the issuance of an injunction later determined to be erro-
neous has no action for damages in the absence of a bond." W. R. Grace &
Co. V. Local Union 759,
U.S.
n. 14 (1983).
,
82-206 & 82-229-DISSENT
6
FIREFIGHTERS v. STOTTS
The Court, nevertheless, suggests that the backpay and
seniority issues somehow keep these cases alive despite the
absence of an adversarial party. The Court states:
"Unless the judgment of the Court of Appeals is re-
versed, however, the layoffs and demotions were in ac-
cordance with the law, and it would be quite unreason-
able to expect the City to pay out money to which the
employees had no legal right, Nor would it feel free to
respond to the seniority claims of the three white em-
ployees who
lost competitive seniority in relation to
all other individuals who were not laid off, including
those minority employees who would have been laid off
but for the injunction. On the other hand, if the Court
of Appeals' judgment is reversed. the City would be free
to take a wholly different position with respect to back
pay and seniority." Ante, at 8 (footnote omitted).
Although the artful ambiguity of this passage renders it ca-
pable of several interpretations, none of them provides a
basis on which to conclude that these cases are not moot.
The Court may mean to suggest that the city has no legal ob-
ligation to provide backpay and retroactive seniority, but
that it might voluntarily do so if this Court opines that the
preliminary injunction was improper. A decision in that
situation, however, would be an advisory opinion in the full
sense-it would neither require nor permit the city to do any-
thing that it cannot do already.
It is more likely that the Court means one of two other
things. The Court may mean that if the Court of Appeals'
decision is left standing, it would have some kind of preclu-
sive effect in a suit for back pay and retroactive seniority
brought by the union against the city. Alternatively, the
Court may mean that if the city sought voluntarily to give
union members the back pay and retroactive seniority that
they lost, the respondents could invoke the preliminary in-
junction to prohibit the city from doing so.
82-206 & 82-229-DISSENT
FIREFIGHTERS L'. STOTTS
7
Even if both of these notions were correct which they
clearly are not, see infra, at
, and nn. 3, 4, and
-they are irrelevant to the question of mootness. The
union has not filed a suit for backpay or seniority, nor has the
preliminary injunction prevented the city from awarding ret-
roactive seniority to the laidoff workers. Accordingly, these
issues simply are not in the cases before the Court. and have
no bearing on the question of mootness. In Oil Workers V.
Missouri, supra, for example, the Court declined to review
an expired antistrike injunction issued pursuant to an alleg-
edly unconstitutional state statute, even though the chal-
lenged statute also governed a monetary penalty claim pend-
ing in state court against the union. The Court stated:
That suit is not before us. We have not now jurisdiction
of it or its issues. Our power only extends over and is lim-
ited by the conditions of the case now before us." 361 U. S.,
at 370 Temphasis added), quoting American Book Co. V. Kan-
sas. 193 U. S. 49. 52 (1904). By vacating this judgment as
moot. the Court would ensure that in the event that a contro-
versy over backpay and retroactive seniority should arise.
the parties in these cases could relitigate any issues concern-
ing the propriety of the preliminary injunction as it relates to
that controversy. Thus, the Court today simply has its rea-
soning backwards. It pretends that these cases present 2
live controversy because the judgment in them might affect
future litigation; yet the Court's longstanding practice of va-
cating moot judgments is designed precisely to prevent that
result.
By going beyond the reach of the Court's Article III pow-
ers, today's decision improperly provides an advisory opinion
for the city and the union. With regard to the city's ability
to give retroactive seniority and backpay to laidoff workers,
respondents concede that neither the preliminary injunction
nor the Court of Appeals' judgment prohibits the city from
82-206 & 82-229-DISSENT
8
FIREFIGHTERS v. STOTTS
taking such action,3 Brief for Respondents 30-31. The city
has not claimed any confusion over its ability to make such an
award; it simply has chosen not to do SO. Thus, the opinion
today provides the city with a decision to ensure that it can
do something that it has not claimed any interest in doing and
has not been prevented from doing, and that respondents
concede they have no way of stopping.
With regard to the union. the Court's imagined contro-
versy is even more hypothetical. The Court concedes that
there is doubt whether, in fact, the union possesses any en-
forceable contractual rights that could form the basis of a con-
tract claim by the union against the city.* I: is also unclear
3 It was the city's layoff policy, not the preliminary injunction. that pre-
vented the laidoff workers from accruing seniority during their layoffs,
Paragraph 6B of "Benefits" of the city's written "Layoff Policy," adopted
unilaterally by the city in April 1981, states: "Employees shall not receive
seniority credit during their layoff period." App. 95. If the laidoff work-
ers are to receive retroactive seniority, it will be because the city chooses
to change this policy-which they always have been free to do-not be-
cause the preliminary injunction has been invalidated. Although the
Court feigns uncertainty on this matter. ante. at 8. n. 5. as does JUSTICE
O'CONNOR in her separate opinion. ante, a: 2, there is simply no indication
in these cases that the city wants to give the laidoff workers retroactive
seniority but is unable to do so because of the preliminary injunction.
*It appears that if the union enjoys any contractual rights at all: they
derive from the "Memorandum of Understanding" between the union and
the city, which indicates that layoffs shall be made on the basis of seniority.
App. to Pet. for Cert. in No. 82-206. p. A81. The Tennessee Supreme
Court recently has confirmed, however, that the Memorandum of Under-
standing confers no enforceable rights, Fulenuider V. Firefighters Associ-
ation Local Union 1781, 649 S. W. 2d 268 (1982), because of state law lim-
its on the authority of municipalities to contract with labor organizations.
Thus. the likely reason that the union has not filed a suit for backpay is
because it has no enforceable rights.
I am at somewhat of a loss trying to understand the Court's suggestion
that the District Court's preliminary injunction somehow prevented con-
tract liability from arising between the city and the affected white employ-
ees. As is explained more fully, infra, the preliminary injunction did not
require the city to layoff anyone. The preliminary injunction merely pro-
hibited the city from laying off more than a certain proportion of Negroes.
82-206 & 82-229-DISSENT
FIREFIGHTERS v. STOTTS
9
how the propriety of the preliminary injunction would affect
the city's defenses in such a suit.3 In any event, no such
claims have been filed. Thus, today's decision is provided on
the theory that it might affect a defense that the city has not
asserted. in a suit that the union has not brought, to enforce
contractual rights that may not exist.
II
Because there is now no justiciable controversy in these
cases. today's decision by the Court is an improper exercise
of judicial power. It is not my purpose in dissent to parallel
the Court's error and speculate on the appropriate disposition
of these nonjusticiable cases. In arriving at its result, how-
ever. the Court's analysis is misleading in many ways, and in
other ways it is simply in error. Accordingly, it is important
to note the Court's unexplained departures from precedent
and from the record.
A
Assuming arguendo that these cases are justiciable, then
the only question before the Court is the validity of a prelimi-
mary injunction that prevented the city from conducting lay-
In the face of that constraint. the city decided to proceed with layoffs and
to lay off whites instead of the protected Negroes. If in so doing the city
breached contractual rights of the white employees. those rights remained
enforceable. See W. R. Grace & Co. V. Local Union 759, supra (employer
could be held liable for breach of collective bargaining agreement when. be-
cause women employees were protected by an injunction, it laid off male
employees with greater seniority).
'An enjoined party is required to obey an injunction issued by a federal
court within its jurisdiction even if the injunction turns out on review to
have been erroneous. and failure to obey such an injunction is punishable
by contempt. Walker V. City of Birmingham, 388 U. S. 307, 314 (1967).
Given that the city could have been punished for contempt if it had disre-
garded the preliminary injunction, regardless of whether the injunction on
appeal were found erroneous. it seems unlikely that a defense to a breach
of contract would turn on whether the preliminary injunction is upheld on
appeal as opposed to the city's obligation to obey the injunction when
entered.
82-206 & 82-229-DISSENT
10
FIREFIGHTERS 2. STOTTS
offs that would have reduced the number of Negroes in cer-
tain job categories within the Memphis Fire Department.
In granting such relief, the District Court was required to
consider respondents' likelihood of success on the merits, the
balance of irreparable harm to the parties. and whether the
injunction would be in the public interest. University of
Texas V. Camenisch, 451 U. S. 390, 392 (1981); Doran V. Sa-
lem Inn. Inc., 422 U. S, 922, 931 (1975). The question be-
fore a reviewing court "is simply whether the issuance of the
injunction. in light of the applicable standard, constituted an
abuse of discretion." Id., at 932.
The Court has chosen to answer a different question. The
Court's opinion does not mention the standard of review for a
preliminary injunction. and does not apply that standard to
these cases. Instead. the Court treats the cases as if they
involved a permanent injunction, and addresses the question
whether the city's proposed layoffs violated the consent de-
cree." That issue was never resolved in the District Court
"The Court's attempt to recharacterize the preliminary injunction as a
permanent one is wholly unpersuasive. Respondents' request for injune-
tive relief specifically sought a preliminary injunction. and carefully laid
out the standards for the issuance of such an injunction. App. 20-22. Pe-
titioners' response in opposition to the request for injunctive relief was de-
voted entirely to explaining that the standards for a preliminary injunction
had not been met. Id., at 25-28. The District Court's order granting in-
junctive relief was entitled an "Order Granting Preliminary Injunction,"
and a later order expanding the injunctive relief to include more positions
was entitled an "Order Expanding Preliminary Injunction." App. to Pet.
for Cert. in No. 82-229, pp. ATT. A82. The Court of Appeals expressly
defined the nature of its inquiry by stating:
"We must weigh whether the plaintiffs have shown 2 possibility of success
on the merits. whether the plaintiff or defendant would suffer irreparable
harm and whether the public interest warrants the injunction
The
standard of appellate review is whether the district court abused its discre-
tion in granting the preliminary injunction.
"[The District Judge] did not abuse his discretion in granting the prelimi-
nary injunction." 679 F. 2d 541, 560 (CA6 1982).
82-206 & 82-229-DISSENT
FIREFIGHTERS v. STOTTS
11
because the city did not press for a final decision on the mer-
its. The issue, therefore, is not properly before this Court.
After taking jurisdiction over a controversy that no longer
exists, the Court reviews a decision that was never made.
In so doing, the Court does precisely what in Camenisch,
supra, it unanimously concluded was error. Camenisch in-
volved a suit in which a deaf student obtained a preliminary
injunction requiring that the University of Texas pay for an
interpreter to assist him in his studies. While appeal of the
preliminary injunction was pending before the Court of Ap-
peals. the student graduated. The Court of Appeals af-
firmed the District Court. In SO doing, the appellate court
rejected Camenisch's suggestion that his graduation ren-
dered the case moot because the District Court had required
Camenisch to post a bond before granting the preliminary in-
junction, and there remained the issue whether the Univer-
sity or Camenisch should bear the cost of the interpreter.
This Court granted certiorari and vacated and remanded the
case to the District Court. The Court explained:
"The Court of Appeals/correctly held that the case as a
whole is not moot, since, as that Court noted, it remains
to be decided who should ultimately bear the cost of the
interpreter. However, the issue before the Court of Ap-
peals was not who should pay for the interpreter, but
rather whether the District Court had abused its discre-
tion in issuing a preliminary injunction requiring the
University to pay for him
The two issues are sig-
nificantly different, since whether the preliminary in-
junction should have issued depended on the balance of
factors [for granting preliminary injunctions], while
whether the University should ultimately bear the cost of
It is hard to imagine a clearer statement that the issue considered by the
Court of Appeals was the propriety of a preliminary injunction. In any
event, even if the Court of Appeals went beyond the scope of its appropri-
ate review, it would be our duty to correct that error, not to follow it.
82-206 & 82-229-DISSENT
12
FIREFIGHTERS v. STOTTS
the interpreter depends on a final resolution of the mer-
its of Camenisch's case.
Until [a trial on the merits] has taken place, it would be
inappropriate for this Court to intimate any view on the
merits of the lawsuit." 451 U. S., at 393, 398 (emphasis
added).
Camenisch makes clear that a determination of a party's
entitlement to a preliminary' injunction is a separate issue
from the determination of the merits of the party's underly-
ing legal claim, and that a reviewing court should not confuse
the two. Even if the issues presented by the preliminary in-
junction in these cases were not moot. therefore, the only
issue before this Court would be the propriety of preliminary
injunctive relief." See, also, New York State Liquor Au-
thority V. Bellanca, 452 U. S. 714, 716 (1981); Doran v. Sa-
The distinction between the preliminary and final injunction stages of a
proceeding is more than mere formalism. The time pressures involved in
a request for a preliminary injunction require courts to make determina-
tions without the aid of full briefing or factual development. and make all
such determinations necessarily provisional. Like the proceedings in
Camenisch, those in this litigation "bear the marks of the haste charac-
teristic of a request for 2 preliminary injunction." 451 U. S., at 398. The
hearing on the preliminary injunction was held four days after the layoffs
had been announced. With the exception of a single deposition the day
before the hearing. there was no discovery. In opening the hearing. the
trial judge noted: "One of the problems with these injunction hearings cen-
ters around the fact that the lawyers don't have the usual time to develop
the issues. and take discovery, and exchange information, and to call on
each other to state what they think the issues are I got an idea from
the lawyers-I am not sure that they were finally decided on what route
they were going
App. 30. It is true that the District Court made a
few of what generously could be described as findings and conclusions. but,
as the Court in Camenisch pointed out, "findings of fact and conclusions of
law made by a court granting a preliminary injunction are not binding at
trial on the merits." 451 U. S., at 395. Accordingly, there is simply no
proper basis on which this Court legitimately can decide the question
whether the city's proposed layoffs violated the consent decree.
82-206 & 82-229-DISSENT
FIREFIGHTERS v. STOTTS
13
lem Inn, Inc., 422 U.S., at 931-932, 934. It is true, of
course, that the District Court and the Court of Appeals had
to make a preliminary evaluation of respondents' likelihood of
success on the merits, but that evaluation provides no basis
for deciding the merits:
"Since Camenisch's likelihood of success on the merits
was one of the factors the District Court and the Court of
Appeals considered in granting Camenisch a preliminary
injunction. it might be suggested that their decisions
were tantamount to decisions on the underlying merits
and thus that the preliminary-injunction issue is not
truly moot.
This reasoning fails, however, because
it improperly equates 'likelihood of success' with 'suc-
cess, and what is more important, because it ignores the
significant procedural differences between preliminary
and permanent injunctions." 451 U. S., at 394 (empha-
sis added).
B
After ignoring the appropriate standard of review, the
Court then focuses on an issue that is not in these cases. It
begins its analysis by stating that the "issue at the heart of
this case" is the District Court's power to "ente[r] an injune-
tion requiring white employees to be laid off." Ante, at 9.
That statement. with all respect, is simply incorrect. On its
face, the preliminary injunction prohibited the city from con-
ducting layoffs in accordance with its seniority system "inso-
far as it will decrease the percentage of black[s]
pres-
ently employed" in certain job categories. App. to Pet. for
Cert. in No. 82-229, p. A80. The preliminary injunction did
not require the city to lay off any white employees at all. In
fact, several parties interested in the suit, including the
union, attempted to persuade the city to avoid layoffs en-
tirely by reducing the working hours of all fire department
employees. See Brief for Respondents 73. Thus, although
the District Court order reduced the city's options in meeting
its fiscal crisis, it did not require the dismissal of white em-
82-206 & 82-229-DISSENT
14
FIREFIGHTERS v. STOTTS
ployees. The choice of a modified layoff plan remained that
of the city,
This factual detail is important because it makes clear that
the preliminary injunction did not abrogate the contractual
rights of white employees. If the modified layoff plan pro-
posed by the city to comply with the District Court's order
abrogated contractual rights of the union. those rights re-
mained enforceable. This Court recognized this principle
just last Term in W. R. Grace & Co. V. Local Union 759.
U. S. - (1983), which presented a situation remark-
ably similar to the one here. In that case, an employer
sought to conduct layoffs and faced a conflict between a Title
VII conciliation agreement protecting its female employees
and the seniority rights of its male employees. The em-
ployer chose to lay off male employees, who filed grievances
and obtained awards for the violation of their contractual
rights. In upholding the awards, this Court explained that
the dilemma faced by the employer did not render the male
9
employees' contractual rights unenforceable:
"Given the Company's desire to reduce its workforce,
it is undeniable that the Company was faced with a di-
lemma: it could follow the conciliation agreement as man-
dated by the District Court and risk liability under the
collective bargaining agreement, or it could follow the
bargaining agreement and risk both a contempt citation
and Title VII liability. The dilemma, however, was of
the Company's own making. The Company committed
itself voluntarily to two conflicting contractual obliga-
tions." Id., at -
It is clear, therefore, that the correctness of the District
Court's interpretation of the decree is irrelevant with respect
to the enforceability of the union's contractual rights; those
rights remained enforceable regardless of whether the city
82-206 & 82-229-DISSENT
FIREFIGHTERS L. STOTTS
15
had an obligation not to lay off blacks.' The question in
these cases remains whether the District Court's authority
pursuant to the consent decree enabled it to enjoin a layoff of
more than a certain number of blacks. The issue is not
whether the District Court could require the city to layoff
whites, or whether the District Court could abrogate contrac-
tual rights of white firefighters.
III
Assuming, as the Court erroneously does, that the District
Court entered a permanent injunction, the question on re-
view then would be whether the District Court had authority
to enter it. In affirming the District Court. the Court of Ap-
peals suggested at least two grounds on which respondents
might have prevailed on the merits.
The first of these derives from the contractual characteris-
tics of a consent decree. Because a consent decree "is to be
construed for enforcement purposes essentially as a con-
tract." United States V. ITT Continental Baking Co., 420
U. S. 223, 238 (1975), respondents had the right to specific
performance of the terms of the decree. If the proposed lay-
offs violated those terms, the District Court could issue an
injunction requiring compliance with them. Alternatively,
the Court of Appeals noted that a court of equity has inherent
power to modify a consent decree in light of changed circum-
stances. 679 F. 2d 541, 560-561 (CA6 1982). Thus, if re-
spondents could show that changed circumstances justified
modification of the decree, the District Court would have au-
thority to make such a change.
Respondents based their request for injunctive relief pri-
marily on the first of these grounds, and the Court's analysis
of this issue is unpersuasive. The District Court's authority
to enforce the terms and purposes of the consent decree was
'Judge Martin's opinion concurring in part and dissenting in part from
the Sixth Circuit's decision is based on precisely this point. See 679 F. 2d,
at 569.
82-206 & 82-229-DISSENT
16
FIREFIGHTERS U. STOTTS
expressly reserved in 17 of the decree itself: "The Court re-
tains jurisdiction of this action for such further orders as may
be necessary or appropriate to effectuate the purposes of this
decree." App. to Pet. for Cert. in No. 82-229, p. A69. P.e-
spondents relied on that provision in seeking the preliminary
injunction. See Plaintiffs' Supplemental Memorandum in
Support of a Preliminary Injunction 1. The decree obligated
the city to provide certain specific relief to particular individ-
uals, and to pursue à long-term goal to "raise the black repre-
sentation in each job classification on the fire department to
levels approximating the black proportion of the civilian labor
force in Shelby County." App. to Pet. for Cert. in No.
82-229. p. A64. The decree set more specific goals for hir-
ing and promotion opportunities as well. To meet these
goals. the decree "require[d] reasonable, good faith efforts on
the part of the City." Ibid.
In support of their request for a preliminary injunction. re-
spondents claimed that the proposed layoffs would adversely
affect blacks significantly out of proportion to their represen-
tation. Supplemental Memorandum in Support of a Prelimi-
nary Injunction, pp. 1-2. They argued that the proposed
layoffs were "designed to thwart gains made by blacks"
under the decree. Id., at 2. Their argument emphasized
that the Mayor had "absolute discretion to choose which job
classifications" were to be affected by the layoffs, ibid., and
that the "ranks chosen by the Mayor for demotion are those
where blacks are represented in the greatest number." Id.,
at 4. Respondents claimed that such a layoff plan "violates
the spirit of the 1980 Consent Decree." Id., at 3. Had re-
spondents been able to prove these charges at trial, they may
well have constituted a violation of the city's obligation of
good faith under the decree. On the basis of these claims,
the limited evidence presented at the hearing prior to the is-
suance of the preliminary injunction, and the District Court's
familiarity with the city's past behavior, the District Court
enjoined the city from laying off blacks where the effect
82-206 & 82-229-DISSENT
FIREFIGHTERS l'. STOTTS
17
would have been to reduce the percentage of black represen-
tation in certain job categories. By treating the District
Court's injunction as a permanent one, however, the Court
first deprives respondents of the opportunity to substantiate
these claims, and then faults them for having failed to do so.
But without determining whether these allegations have any
substance, there is simply no way to determine whether the
proposed layoff plan violated the terms of the consent decree.
Even if respondents could not have shown that the pro-
posed layoff plan conflicted with the city's obligation of good
faith. '17 of the Decree also empowered the District Court to
enter orders to "effectuate the purposes" of the decree.
Thus, if the District Court concluded that the layoffs would
frustrate those purposes, then the decree empowered the
District Court to enter an appropriate order. Once again,
however, on the limited factual record before the Court, it is
improper to speculate about whether the layoffs would have
frustrated the gains made under the consent decree suffi-
ciently to justify a permanent injunction.
The Court rejects the argument that the injunctive relief
was a proper exercise of the power to enforce the purposes of
the decree principally on the ground that the remedy agreed
upon in the consent decree did not specifically mention lay-
offs. Ante, at 11-12. This treatment of the issue is inade-
quate. The power of the District Court to enter further or-
ders to effectuate the purposes of the decree was a part of the
agreed remedy. The parties negotiated for this, and it is the
obligation of the courts to give it meaning. In an ideal
world, a well-drafted consent decree requiring structural
change might succeed in providing explicit directions for all
future contingencies. But particularly in civil rights litiga-
tion in which implementation of a consent decree often takes
years, such foresight is unattainable. Accordingly, parties
to a consent decree typically agree to confer upon supervising
courts the authority to ensure that the purposes of a decree
are not frustrated by unforeseen circumstances. The scope
82-206 & 82-229-DISSENT
18
FIREFIGHTERS 2. STOTTS
of such authority in an individual case depends principally
upon the intent of the parties. Viewed in this light, recourse
to such broad notions as the "purposes" of a decree is not a
rewriting of the parties' agreement, but rather a part of the
attempt to implement the written terms. The District
Judge in these cases, who presided over the negotiation of
the consent decree, is in a unique position to determine the
nature of the parties' original intent, and he has a distinctive
familiarity with the circumstances that shaped the decree and
defined its purposes. Accordingly, he should be given spe-
cial deference to interpret the general and any ambiguous
terms in the decree. It simply is not a sufficient response to
conclude, as the Court does, that the District Court could not
enjoin the proposed layoff plan merely because layoffs were
not specifically mentioned in the consent decree.
In this regard, it is useful to note the limited nature of the
injunctive relief ordered by the District Court. The prelimi-
nary injunction did not embody a conclusion that the city
could never conduct layoffs in accordance with its seniority
policy. Rather, the District Court preliminarily enjoined a
particular application of the seniority system as a basis for a
particular set of layoffs. Whether the District Court would
enjoin a future layoff presumably would depend on the fac-
tual circumstances of that situation. Such a future layoff
presumably would affect a different proportion of blacks and
whites; the black representation in the fire department pre-
sumably would be higher; the layoffs presumably would ne-
gate a smaller portion of the gains made under the decree;
and the judge would have worked with the parties at imple-
menting the decree for a longer period of time. There is no
way of knowing whether the District Court would conclude
that a future layoff conducted on the basis of seniority would
frustrate the purposes of the decree sufficiently to justify an
injunction. For this reason, the Court is wrong to attach
such significance to the fact that the consent decree does not
provide for a suspension of the seniority system during all
82-206 & 82-229-DISSENT
FIREFIGHTERS L'. STOTTS
19
layoffs, for that is not what the District Court ordered in
these cases.
B
The Court of Appeals also suggested that respondents
could have prevailed on the merits because the 1981 layoffs
may have justified a modification of the consent decree.
This Court frequently has recognized the inherent "power of
a court of equity to modify an injunction in adaptation to
changed conditions though it was entered by consent."
United States V. Swift & Co., 286 U. S. 106, 114 (1932); ac-
cord. Pasadena City Board of Education V. Spangler, 427
U. S. 424, 437 (1976); United States V. United Shoe Machin-
ery Corp., 391 U.S. 244. 251 (1968). "The source of the
power to modify is of course the fact that an injunction of ten
requires a continuing willingness to apply its powers and
processes on behalf of the party who obtained that equitable
relief." System Federation V. Wright, 364 U.S. 642, 647
(1961). The test for ruling on a plaintiff's request for a modi-
fication of a consent decree is "whether the change serve[s] to
effectuate
the basic purpose of the original consent de-
cree." Chrysler Corp. V. United States, 316 U. S., at 562.
The Court rejects this ground for affirming the preliminary
injunction, not by examining the purposes of the consent de-
cTee and whether the proposed layoffs justified a modification
of the decree, but rather by reference to Title VII. The
Court concludes that the preliminary injunction was im-
proper because it "imposed on the parties as an adjunct of
settlement something that could not have been ordered had
the case gone to trial and the plaintiffs proved that a pattern
or practice of discrimination existed." Ante, at 16. Thus,
the Court has chosen to evaluate the propriety of the prelimi-
nary injunction by asking what type of relief the District
Court could have awarded had respondents litigated their
Title VII claim and prevailed on the merits. Although it is
82-206 & 82-229-DISSENT
20
FIREFIGHTERS v. STOTTS
far from clear whether that is the right question, it is clear
that the Court has given the wrong answer.
Had respondents prevailed on their Title VII claims at
trial. the remedies available would have been those provided
by $ 706(g), 42 U. S. C. § 2000e-5(g). Under that section. a
court that determines that an employer has violated Title VII
may "enjoin the respondent from engaging in such unlawful
employment practice, and order such affirmative action as
may be appropriate, which may include, but is not limited to,
reinstatement or hiring of employees. with or without back
pay
or any other equitable relief as the court deems ap-
propriate" (emphasis added). The scope of the relief that
could have been entered on behalf of respondents had they
prevailed at trial therefore depends on the nature of relief
that is "appropriate" in remedying Title VII violations.
In determining the nature of "appropriate" relief under
§ 706(g). courts have distinguished between individual relief
and race-conscious class relief. Although overlooked by the
Court. this distinction is highly relevant here. In a Title VII
class-action suit of the type brought by respondents, an indi-
vidual plaintiff is entitled to an award of individual relief only
'The Court's analysis seems to be premised on the view that a consent
decree cannot provide relief that could not be obtained at trial. In ad-
dressing the Court's analysis, I do not mean to imply that I accept its
premise as correct. In Steelworkers V. Weber, 443 U. S. 193 (1979), this
Court considered whether an affirmative action plan adopted voluntarily
by an employer violated Title VII because it discriminated against whites.
In holding that the plan was lawful. the Court stressed that the voluntari-
ness of the plan informed the nature of its inquiry. Id., at 200; see also id.,
at 211 (concurring opinion). Because a consent decree is an agreement
that is enforceable in court, it has qualities of both voluntariness and com-
pulsion. The Court has explained that Congress intended to encourage
voluntary settlement of Title VII suits, Carson V. American Brands. Inc.,
450 U. S. 79, 88, n. 14 (1981). and cooperative private efforts to eliminate
the lingering effects of past discrimination. Weber, 432 U. S., at 201-207.
It is by no means clear, therefore. that the permissible scope of relief avail-
able under a consent decree is the same as could be ordered by a court after
a finding of liability at trial.
82-206 & 82-229-DISSENT
FIREFIGHTERS L. STOTTS
21
if he can establish that he was the victim of discrimination.
That requirement grows out of the general equitable princi-
ples of "make whole" relief; an individual who has suffered no
injury is not entitled to an individual award. See Teamsters
V. United States, 431 U. S. 324, 347-348, 364-371 (1977). If
victimization is shown, however, an individual is entitled to
whatever retroactive seniority, backpay, and promotions are
consistent with the statute's goal of making the victim whole.
Franks V. Bowman Transportation Co., 424 U. S. 747,
762-770 (1976).
In Title VII class-action suits, the Courts of Appeals are
unanimously of the view that race-conscious affirmative relief
can also be "appropriate" under § 706(g). 10 See University of
California Regents V. Bakke, 438 U. S. 265, 301-302 (opinion
of POWELL. J.); id., at 353. n. 28 (1978) (opinion of BRENNAN,
WHITE MARSHALL and BLACKMUN, JJ.). The purpose of
such relief is not to make whole any particular individual. but
rather to remedy the present class-wide effects of past dis-
crimination or to prevent similar discrimination in the future.
Because the discrimination sought to be alleviated by race-
conscious relief is the classwide effects of past discrimination,
rather than discrimination against identified members of the
class, such relief is provided to the class as a whole rather
10 See E. g., Boston Chapter. NAACP. Inc. V. Beecher, 504 F. 2d 1017.
1027-102S CA1 1974), cert. denied. 421 U. S. 910 (1975): Rios V. Enter-
prise Ass'n Steamntters Local 638. 501 F. 2d 622. 629 (CA2 1974);
E. E. O. C. V. American Tel. & Tel. Co., 556 F. 2d 167. 174-177 (C.A3
1977), cert. denied. 438 U. S. 915 (1978); Chisholm V. United States Postal
Service. 665 F. 2d 482, 499 (CAI 1981); United States V. City of Alexan-
dria, 614 F. 2d 1358, 1363-1366 (CA5 1980); United States V. 1. B. E. W.,
Local No. 38, 428 F. 2d 144 (CA6), cert. denied, 400 U.S. 943 (1970):
United States V. City of Chicago. 663 F. 2d 1354 (CAT 1981) (en banc);
Firefighters Institute V. City of St. Louis, 616 F. 2d 350, 364 (CA8 1980).
cert. denied. 452 L. S. 938 (1981): United States V. Ironworkers Local 86.
443 F. 2d 544. 553-554 (CA9). cert. denied, 404 U. S. 984 (1971): United
States V. Lee Way Motor Freight, Inc., 625 F. 2d 918. 944 (CA10 1979);
Thompson V. Sauyer, 219 U.S. App. D. C. 393. 430, 678 F. 2d 257, 294
(1982).
82-206 & 82-229-DISSENT
22
FIREFIGHTERS 11. STOTTS
than to its individual members. The relief may take many
forms, but in class actions it frequently involves percent-
ages-such as those contained in the 1980 consent decree be-
tween the city and respondents-that require race to be
taken into account when an employer hires or promotes em-
ployees. The distinguishing feature of race-conscious relief
is that no individual member of the disadvantaged class has a
claim to it, and individual beneficiaries of the relief need not
show that they were themselves victims of the discrimination
for which the relief was granted.
In the instant case. respondents' request for a preliminary
injunction did not include a request for individual awards of
retroactive seniority-and, contrary to the implication of the
Court's opinion, the District Court did not make any such
awards. Rather, the District Court order required the city
to conduct its layoffs in a race-conscious manner: specifically,
the preliminary injunction prohibited the city from conduct-
ing layoffs that would "decrease the percentage of black[s]"
in certain job categories. The city remained free to lay off
any individual black SO long as the percentage of black repre-
sentation was maintained.
Because these cases arise out of a consent decree, and a
trial on the merits has never taken place, it is of course im-
possible for the Court to know the extent and nature of any
past discrimination by the city. For this reason, to the ex-
tent that the scope of appropriate relief would depend upon
the facts found at trial, it is impossible to determine whether
the relief provided by the preliminary injunction would have
been appropriate following a trial on the merits. Neverthe-
less, the Court says that the preliminary injunction was inap-
propriate because, it concludes, respondents could not have
obtained similar relief had their cases been litigated instead
of settled by a consent decree.
The Court's conclusion does not follow logically from its
own analysis. As the Court points out, the consent decree
arose out of a Title VII suit brought by respondents alleging,
82-206 & 82-229-DISSENT
FIREFIGHTERS 2: STOTTS
23
inter alia, that the city had engaged in a pattern and practice
of discrimination against members of the plaintiff class. Mr.
Stotts, the named plaintiff, claimed that he and the class
members that he represented had been denied promotions
solely because of race, and that because of that discrimina-
tion, he and other members of the class had been denied their
rightful rank in the Memphis Fire Department. See Com-
plaint of Respondents in No. 82-229, rrg and 10, App. 10.
Had respondents' case actually proceeded to trial. therefore,
it would have involved the now familiar two-stage procedure
established in Teamsters and Franks. The first stage would
have been a trial to determine whether the city had engaged
in unlawful discrimination: if so, the case would proceed to
the second stage, during which the individual members of the
class would have the opportunity to establish that they were
victims of discrimination. Teamsters, 431 U. S., at 371, 375.
The Court itself correctly indicates: "If individual members of
a plaintiff class demonstrate that they have been actual vic-
tims of the discriminatory practice, they may be awarded
competitive seniority and given their rightful place on the se-
niority roster." Ante, at 15. Were respondents to prevail
at trial on their claims of discrimination, therefore, they
would have been entitled to individual awards of relief, in-
cluding appropriate retroactive seniority. Thus, even treat-
ing the District Court's preliminary injunction as if it granted
individual awards of retroactive seniority to class members,
it is relief that respondents might have obtained had they
gone to trial instead of settling their claims of discrimination.
Thus, the Court's conclusion is refuted by its own logic and
by the very cases on which it relies to come to its result. 11
"The Court's opinion is sufficiently ambiguous to suggest another inter-
pretation. The Court concludes that the preliminary injunction was im-
proper because it gave respondents something they could not have ob-
tained had they proved that "a pattern or practice of discrimination
existed." Ante, at 16. It is possible. therefore, that the Court is suggest-
ing that the limit on relief available under a consent decree is that which
82-206 & 82-229-DISSENT
24
FIREFIGHTERS v. STOTTS
For reasons never explained, the Court's opinion has fo-
cused entirely on what respondents have actually shown, in-
stead of what they might have shown had trial ensued. It is
improper and unfair to fault respondents for failing to show
"that any of the blacks protected from layoff had been a vic-
tim of discrimination," ante, at 16, for the simple reason that
the claims on which such a showing would have been made
never went to trial. The whole point of the consent decree in
these cases-and indeed the point of most Title VII consent
decrees-is for both parties to avoid the time and expense of
litigating the question of liability and identifying the victims
of discrimination: In the instant consent decree. the city ex-
pressly denied having engaged in any discrimination at all.
Nevertheless, the consent decree in this case provided sev-
eral persons with both promotions and backpay. By defini-
tion, all such relief went to persons never determined to be
victims of discrimination, and the Court does not indicate
that it means to suggest that the original consent decree in
these cases was invalid. Any suggestion that a consent de-
cree can provide relief only if a defendant concedes liability
would drastically reduce, of course, the incentives for enter-
ing into consent decrees. Such a result would be incon-
gruous, given the Court's past statements that "Congress ex-
pressed a strong preference for encouraging voluntary
settlement of employment discrimination claims." Carson
V. American Brands, Inc., 450 U. S. 79, 88, n. 14 (1981): see
Alexander V. Gardner-Denver Co., 415 U. S. 36, 44 (1974).
The Court's reliance on Teamsters is mistaken at a more
general level as well, because Teamsters was concerned with
could be awarded if a plaintiff prevailed in "stage I" of a case but failed to
proceed to "stage II" during which the plaintiff seeks to identify actual vic-
tims of discrimination. But the Court has failed to provide any support for
this odd notion. The rationale underlying its opinion seems to be that the
limit of the District Court's remedial power is that which could have been
ordered following a trial on the alleged discrimination, not just the first
stage of such a trial.
82-206 & 82-229-DISSENT
FIREFIGHTERS 2: STOTTS
25
individual relief, whereas these cases are concerned exclu-
sively with classwide, race-conscious relief. Teamsters
arose out of two pattern-or-practice suits filed by the Govern-
ment alleging that a union and an employer had discriminated
against minorities in hiring truck drivers. Prior to a finding
of liability, the Government entered into a consent decree in
partial resolution of the suit. In that decree, the defendants
agreed to a variety of race-conscious remedial actions, includ-
ing a requirement that the company hire "one Negro or Span-
ish-surnamed person for every white person" until a certain
percentage of minority representation was achieved. 431
U. S., at 330-331. n. 4. The decree did not settle the claims
of individual class members. however, and allowed the indi-
viduals whom the court found to be victims of discrimination
to seek whatever retroactive seniority was appropriate under
Title VII. Ibid.
In Teamsters, therefore, all class-wide claims had been set-
tled before the case reached this Court. The case concerned
only the problems of determining victims and the nature of
appropriate individual relief. Teamsters did not consider
the nature of appropriate affirmative class relief that would
have been available had such relief not been provided in the
consent decree between the parties. The issue in the
present cases, as posed by the Court, is just the reverse.
Respondents have not requested individual awards of senior-
ity, and the preliminary injunction made none. Thus, the
issue in these cases is the appropriate scope of classwide re-
lief-an issue not present in Teamsters when that case came
here. Teamsters therefore has little relevance for these
cases.
The Court seeks to buttress its reliance on Teamsters by
stressing on the last sentence of § 706(g). That sentence
states that a court cannot order the "hiring, reinstatement,
or promotion of an individual as an employee
if such indi-
vidual
was refused employment or advancement or was
suspended or discharged for any reason other than dis-
82-206 & 82-229-DISSENT
26
FIREFIGHTERS L'. STOTTS
crimination" in violation of Title VII. The nature of the
Court's reliance on that sentence is unclear, however, be-
cause the Court states merely that the District Court "ig-
nores" the "policy behind $ 706(g)." Ante, at 19, 16. For
several reasons, however, it appears that the Court relies on
the policy of § 706(g) only in making a particularized conclu-
sion concerning the relief granted in these cases, rather than
a conclusion about the general availability of race-conscious
remedies.
In discussing § 706(g), the Court relies on several passages
from the legislative history of the Civil Rights Act of 1964 in
which individual legislators stated their views that Title VII
would not authorize the imposition of remedies based upon
race. And while there are indications that many in Congress
at the time opposed the use of race-conscious remedies, there
is authority that supports a narrower interpretation of
$ 706(g). Under that interpretation, the last sentence of
§ 706(g) addresses only the situation in which a plaintiff dem-
onstrates that an employer has engaged in unlawful dis-
crimination, but the employer can show that a particular indi-
vidual would not have received the job, promotion or
reinstatement even in the absence of discrimination because
there was also a lawful justification for the action. See Pat-
terson V. Greenwood School District 50, 696 F. 2d 293, 295
(CA4 1982); E. E. O. C. V. American Tel. & Tel. Co., 556 F.
2d 167, 174-177 (CA3 1977), cert. denied, 438 U.S. 915
(1978); Day V. Mathews. 174 U. S. App. D. C. 231, 233, 530
F. 2d 1083. 1085 (1976); King V. Laborers Int'l Union, Local
No. 818, 443 F. 2d 273, 278-279 (CA6 1971). See also
Brodin, The Standard of Causation in the Mired-Motive
Title VII Action: A Social Policy Perspective, 82 Colum. L.
Rev. 292 (1982). The provision, for example, prevents a
court from granting relief where an employment decision is
based in part upon race, but where the applicant is unquali-
fied for the job for nondiscriminatory reasons. In that
sense, the section merely prevents a court from ordering an
82-206 & 82-229-DISSENT
FIREFIGHTERS v. STOTTS
27
employer to hire someone unqualified for the job, and has
nothing to do with prospective class-wide relief.
Much of the legislative history supports this view. What
is now § 706(g) had its origin in § 707(e) of H. R. 7152, 88th
Cong., 1st Sess: (1963). That original version prevented a
court from granting relief to someone that had been refused
employment, denied promotion. or discharged "for cause."
The "for cause" provision presumably referred to what an
employer must show to establish that a particular individual
should not be given relief. That language was amended by
replacing "for cause" with "for any reason other than dis-
crimination on account of race, color, religion or national ori-
gin." which was the version of the sentence as passed by the
House. The author of the original version and the amend-
ment explained that the amendment's only purpose was to
specify cause. and to clarify that a court cannot find a viola-
tion of the act that is based upon facts other than unlawful
discrimination. 110 Cong. Rec. 2567 (1964) (remarks of Rep.
Celler). There is no indication whatever that the amend-
ment was intended to broaden its prohibition to include all
forms of prospective race-concious relief.
In any event, § 706(g) was amended by the Equal Employ-
ment Opportunity Act of 1972, 86 Stat. 107. The legislative
history of that amendment strongly supports the view that
Congress endorsed the remedial use of race under Title VII.
The amendment added language to the first sentence of
§ 706(g) to make clear the breadth of the remedial authority
of the courts. As amended, the first sentence authorizes a
court to order "such affirmative action as may be appropri-
ate. which may include, but is not limited to, reinstatement
or hiring of employees, with or without backpay
or any
other equitable relief as the court deems appropriate." 42
U. S. C. § 2000e-5(g) (emphasized language added in 1972).
In addition, during consideration of the amendment, Con-
gress specifically rejected an attempt to amend Title VII to
prohibit the use of prospective race-conscious employment
82-206 & 82-229-DISSENT
28
FIREFIGHTERS 2. STOTTS
goals to remedy discrimination. Senator Ervin proposed an
amendment to Title VII intended to prohibit government
agencies from requiring employers to adopt goals or quotas
for the hiring of minorities. 118 Cong. Rec. 1663-1664
(1972). Senator Javits led the debate against the amend-
ment. Id., at 1664-1676. Significantly, Senator Javits
stressed that the amendment would affect not only the activi-
ties of federal agencies, but also the scope of judicial reme-
dies available under Title VII. He referred repeatedly to
court decisions ordering race-conscious remedies, and asked
that two such decisions be printed in the Congressional
Record. Id., at 1665-1675.4 He stated explicitly his view
that "[w]hat this amendment seeks to do is to undo
those
court decisions." Id., at 1665. The amendment was re-
jected by a 2 to 1 margin. Id., at 1676.
With clear knowledge, therefore, of courts' use of race-con-
scious remedies to correct patterns of discrimination, the
1972 Congress rejected an attempt to amend Title VII to pro-
hibit such remedies. In fact, the Conference Committee
stated: "In any area where the new law does not address it-
self, or in any areas where a specific contrary intention is not
indicated, it was assumed that the present case law as devel-
oped by the courts would continue to govern the applicability
and construction of Title VII." 118 Cong. Rec. 7166 (1972).
Relying on this legislative history of the 1972 amendment and
other actions by the Executive and the courts, four members
of this Court, including the author of today's opinion, stated
12 The two cases placed in the Congressional Record were United States
V. Ironworkers Local 86, 443 F. 2d 544 (CA9). cert. denied, 404 U. S. 984
(1971) (a percentage goal for black participation in apprenticeship program
as part of remedy for Title VII violation), and Contractors Association of
Eastern Pennsylvania V. Secretary of Labor, 442 F. 2d 159 (CA3), cert.
denied. 404 U. S. 854 (1971) (upheid lawfulness of a plan requiring contrac-
tors on federally assisted projects to adopt goals for minority employment).
Senator Javits also noted the Justice Department's practice of seeking con-
sent decrees in Title VII cases containing percentage hiring goals. 118
Cong. Rec. 1675 (1972).
82-206 & 82-229-DISSENT
FIREFIGHTERS 2: STOTTS
29
in University of California Regents V. Bakke, 438 U. S. 265,
353, n. 28: "Executive, judicial, and congressional action sub-
sequent to the passage of Title VII conclusively established
that the Title did not bar the remedial use of race" (opinion of
BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ.). As
has been observed, supra, n. 10, moreover, the Courts of
Appeals are unanimously of the view that race-conscious
remedies are not prohibited by Title VII. Because the
Court's opinion does not even acknowledge this consensus, it
seems clear that the Court's conclusion that the District
Court "ignored the policy" of § 706(g) is a statement that the
race-conscious relief ordered in these cases was broader than
necessary, not that race-conscious relief is never appropriate
under Title VII.
IV
By dissenting. I do not mean glibly to suggest that the Dis-
trict Court's preliminary injunction necessarily was correct.
Because it seems that the affected whites have no contractual
rights that were breached by the city's modified layoff plan,
the effect of the preliminary injunction was to shift the pain
of the city's fiscal crisis onto innocent employees. This
Court has recognized before the difficulty of reconciling com-
peting claims of innocent employees who themselves are nei-
ther the perpetrators of discrimination nor the victims of it.
"In devising and implementing remedies under Title VII, no
less than in formulating any equitable decree, a court must
draw on the 'qualities of mercy and practicality [that] have
made equity the instrument for nice adjustment and recon-
ciliation between the public interest and private needs as well
as between competing private claims." Teamsters, 431
U.S., at 375, quoting Hecht Co. V. Bowles, 321 U. S. 321,
329-330 (1944). If the District Court's preliminary injune-
tion was proper, it was because it correctly interpreted the
original intent of the parties to the consent decree, and eq-
uitably enforced that intent in what admittedly was a zero-
sum situation. If it was wrong, it was because it improperly
82-206 & 82-229-DISSENT
30
FIREFIGHTERS L. STOTTS
interpreted the consent decree, or because a less painful way
of reconciling the competing equities was within the court's
power. In either case, the District Court's preliminary in-
junction terminated many months ago. and I regret the
Court's insistence upon unnecessarily reviving a past
controversy.
[
EXECUTIVE OFFICE OF THE PRESIDENT
SECURITY OFFICE a PRESIDENT STATES & i UNITED
OFFICE OF MANAGEMENT AND BUDGET
DATE:
TO: JOUNR
FROM: MIKE 4
WE'LL NEED YOUR
HELP ON THIS
ONE.
M.
OMB FORM 38
Rev. Aug 73
—
8/2: at stoff into suggested
to FFF that be call MC
and tell him to cool it.
Background on GEIER V. ALEXANDER
(Tennessee Higher Education Desegregation Case)
Event: On Thursday, August 2, the Department of Justice will argue
before a federal district court in Tennessee that the court should
not adopt a settlement agreement entered into by the other parties
in a higher education desegregation case. The United States is the
only party in the case that has objected to the settlement agreement
and the district court judge has strongly indicated that he will
enter the agreement over our objections. Civil rights groups may
criticize us for this.
I. Facts: A class of black plaintiffs (represented by, among
others, the NAACP Legal Defense Fund), a class of white professors
at Tennessee State University, and the State of Tennessee have
entered into a settlement agreement, or "consent decree," to resolve
the latest chapter in drawn-out litigation designed to remedy
prior de jure segregation in public colleges and universities in
Tennessee. Tennessee's higher education system has been operating
under a court-ordered desegregation plan for a number of years.
In recent years, the black plaintiffs have requested further relief
from the court, arguing that the existing desegregation plan has
not resulted in a sufficient degree of integration.
To resolve this claim, the black plaintiffs and Tennessee
have entered into this consent decree, which they will ask the
district court to approve on Thursday. If approved by the court,
Tennessee will be legally obligated to carry out all the require-
ments of the decree. The decree requires the state to erect racial
"goals" for faculty hiring and student enrollment, both graduate and
undergraduate, as well as a number of other racial preferences. * /
If, as seems likely, the court approves the decree over our objection,
we will consider an appeal. [According to unverified information we
have received, the National Urban League has recently expressed an
interest in the case and the United States' position may be criticized
at their current convention.]
II. Position of the U.S.: The United States will object to, and
the court should not approve, the consent decree in its present
form because it requires the use of admissions, hiring, and other
racial preferences in violation of the Constitution. Some of the
preferences to be established are the same type as those struck
down by the Supreme Court in the famous case of Bakke V. University
of California Regents.
One provision contemplates the development of scholarship
programs limited to members of a certain race, and another provision
requires the State to provide 75 black college students per year
with special tutoring, scholarships, etc., to encourage their
enrollment in professional schools.
- 2 -
III. Relationship to Administration-Philosophy: The Administration
has consistently stressed that the Constitution requires all govern-
mental entities to behave in a "color-blind" manner and not to prefer
any person who is not a victim of racial discrimination over another
on the basis of race. Governments therefore cannot remedy prior
discrimination against one racial group by discriminating against
another through racial quotas. This is the essential lesson of
the Supreme Court's decision in Bakke and other equal protection
cases.
IV. Anticipated criticism and planned Department of Justice
Response
Criticism: The Reagan Administration is attempting to foil a
comprehensive desegregation plan agreed to by all
the other parties in the case.
Response:
The United States will not be a party to --
indeed, will vigorously oppose -- any desegregation
plan which requires a state government to violate
the constitutional rights of innocent students,
regardless of whether the state has agreed to take
such action. More discrimination is simply not the
way to end discrimination. We will be happy to make
every effort to work with the state and other parties
to develop an effective desegregation plan that does
not include racial preferences, as we have in other
statewide higher education cases (Louisiana, North
Carolina).
V. Talking Points
The United States fully supports efforts to end
unconstitutional segregation in Tennessee's higher
education system and will work with the parties to
accomplish this goal.
It will not, however, be a party to any plan which
requires quotas and other racial preferences.
The United States will continue to oppose racial
discrimination, no matter what form it takes.
U.S. Department of Justice
Office of the Deputy Attorney General
Associate Deputy Attorney General
Washington, D.C. 20530
MEMORANDUM
August 2, 1984
TO:
Richard A. Hauser
Deputy Counsel to the President
FROM:
Roger Clegg RC
Associate Deputy Attorney General
SUBJECT: Geier V. Alexander
Here is some background information I thought might be
useful to you. I talked to John Roberts about this case
yesterday.
Page 27: The following should be deleted from first, second, and
third lines of this page:
"the restrictions on the remedial authority imposed by secs.
3 and 5 on the power of federal courts to remedy
constitutional violations".
CC: John Roberts
Page 19. The second paragraph should be deleted in its entirety.
Page 20, final paragraph.
The sentence "Congress cannot, consistent with Article III,
impose on the courts the duty to exercise an essentially
legislative function without any power to issue relief affecting
individual legal rights or obligations in specific cases" should
be amended to read:
"Congress cannot, consistent with Article III, impose on
the courts the duty to exercise an essentially legislative
function without any power to remedy violations of
individual legal rights".
The sentence "Without the power to order effective relief
should be amended to read:
"If without power to order 'any remedy at all'
"
The sentence "The limitation on remedial authority contained in
S. 139 could not, therefore, be supported under Article III if
the limitation deprived the courts of 'effective remedial power'
on the facts of a particular case" should be amended to read:
"The limitation on remedial authority contained in S. 139
could not, therefore, be supported under Article III if the
limitation deprived the courts of 'all effective remedial
power
The sentence, "Thus, this provision will be upheld by the
Court
"
should be replaced with the following:
"the elimination of assignment and transportation remedies,
plus the specification of what remedies are aailable,
combine to create a situation in which the remedial
authority retained by the inferior federal courts is less
than that which would have been retained under S. 951.
Nonetheless, as with S. 951, "[t]his limited effect on the
court's remedial power does not convert the judicial power
-- tohear and decide particular cases and to grant relief --
into the essentially legislative function of deciding cases
without any power to issue relief affecting individual legal
rights or obligations in specific cases". Id. at page 12.
Accordingly, the restrictions of S. 139 'appear to be firmly
grounded in Congress' Article III sec. 1 power
to
control the inferior federal court jurisdiction' Id." "
OFFICE PRESIDENT STATE UNITED
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
July 27, 1984
MEMORANDUM TO: Branden Blum
FROM:
Mike Horowitz M
SUBJECT:
Proposed Department of Justice Report on S. 139,
the Public School Civil Rights Act of 1983
The following minimal changes remain necessary to avoid the
appearance of support for "remedies" (e.g., the assignment of
students by race) which the President has long been on record as
opposing; and to conform the language of the report regarding
Congress's authority to limit the imposition of busing by the
courts to earlier comments by the Attorney General on this issue
(in his letter to Representative Peter Rodino regarding S. 951,
dated May 6, 1982)
Page 7. The sentence, "Moreover, '[i]n default by the school
authorities of their obligation to proffer acceptable remedies, a
district court has broad power to fashion a remedy that will
assure a unitary school system'" in the second full paragraph
should be revised to read:
"Moreover, '[i]n default by the school authorities of their
obligation to proffer acceptable remedies', a district court
has broad power to fashion a remedy that will assure a such
a system."
Pages 8 and 9. The paragraph beginning "Race or color may be
considered should be deleted and replaced by the
following paragraph:
Thus, although the Court stated in Swann I that [a] wareness
of the racial composition of the whole school system is
likely to be a useful starting point in shaping a remedy to
correct past constitutional violations, id. at 25, and
"attendance assignments made deliberately to accomplish the
transfer of Negro students out of formerly segregated Negro
schools and transfer of white students to formerly all-Negro
schools" was within the broad remedial powers of a court as
an "interim corrective measure", id. at 27; the Court
emphasized that [t] he constitutional command to desegregate
schools does not mean that every school in a community must
always reflect the racial composition of the school system
as a whole, id. at 24, and that "Absent a constitutional
violation there would be no basis for judicially ordering
assignment of students on a racial basis", id. at 28. The
Court has thereby indicated that the same principle that
justifies judicial discretion to impose transportation
remedies also implies a limitation on that discretion.
THE WHITE HOUSE
WASHINGTON
August 2, 1984
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Solicitor General Filing in
Clarksville Baptist Church V. Green
Roger Clegg advised me this afternoon that the Solicitor
General will file today an opposition to certiorari in the
above-referenced Supreme Court case. Clarksville Baptist
Church runs a private school in Mississippi that some allege
to be a segregationist academy. School officials sued the
IRS to compel the Service to maintain the school's
tax-exempt status after the Service threatened to revoke it;
black parents in Mississippi counter-sued the IRS to compel
it to revoke tax-exempt status. The black parents won in
district court and the court of appeals, securing an injunc-
tion confining the manner in which IRS officials could
review the school's eligibility for tax exemption. The
decisions were issued after Bob Jones, which supported the
black parents on the merits, but before Regan V. Wright,
which held that private citizens such as the black parents
had no standing to bring suits of this sort. Clarksville
filed for certiorari, correctly arguing that the black
parents' suit should be dismissed for want of standing in
light of Regan V. Wright.
The Solicitor General will today file a memorandum opposing
certiorari. The Solicitor's argument is not that Clarksville
is wrong on the standing issue but that the case is not
"certworthy." The injunction entered against the IRS in
response to the black parents' suit is essentially moot,
since after Bob Jones the IRS will review the tax-exempt
question as the injunction directs in any event.
The filing may generate objections from Congressman Trent
Lott, who has taken an interest in Clarksville. According
to Assistant Attorney General Glenn Archer, IRS Commissioner
Roscoe Egger assured Lott that the Government would not
prevent Clarksville from having its day in court -- i.e.,
from proving that it in fact does not discriminate. The
Justice Department response to any complaint Lott might
raise is that Clarksville can still have its day in court --
just not the Supreme Court. Clarksville's exemption has not
yet been taken away, and when it is Clarksville can
challenge the action in district court.
- 2 -
There should be little press interest in this, since we are
on the side of the black parents at this point. If Lott
complains, he should be advised that the present petition
concerns a procedural matter and not the merits of Clarks-
ville's tax-exempt status.
THE WHITE HOUSE
WASHINGTON
TO:
John Roberts
FROM: Richard A. Hauser
Deputy Counsel to the President
FYI: X
COMMENT:
ACTION:
OF
U.S. Department of Justice
Office of the Deputy Attorney General
Associate Deputy Attorney General
Washington, D.C. 20530
MEMORANDUM
August 3, 1984
TO:
Richard A. Hauser
Deputy Counsel to the President
FROM:
Roger Clegg RC
Associate Deputy Attorney General
SUBJECT: U.S. V. City of Miami
Here is some background information on our latest civil
rights filing. I doubt that this one will get much publicity,
but it might. I talked to John Roberts about this case today.
BACKGROUND ON U.S. V. CITY OF MIAMI
Event: On Monday, August 6, the Department of Justice
will file a brief in the Eleventh Circuit Court of Appeals
which states that a race-conscious ordinance enacted by the
City of Miami does not violate a consent decree we previously
entered into with the City. The case does not involve, but
may be erroneously viewed as involving, the legality of "reverse
discrimination" and/or the United States' interpretation of
the recent Supreme Court decision, Memphis Firefighters Union
V. Stotts. The case is not a high-profile matter, but it is
possible that both civil rights groups and groups opposed to
"reverse discrimination" may criticize us for our filing.
I. Facts: In 1976, the United States sued the City
of Miami, alleging employment discrimination against blacks,
Latins, and women. The case was resolved by the entry of
a consent decree in 1977. In 1978 the firefighters' union
intervened, and in 1982 the union alleged that the provisions
of the consent decree prohibiting the City from discriminating
on the basis of race or sex in employment are violated by a
civil service ordinance enacted by the City in 1979. The
ordinance requires the official making promotions in city
departments to consider eight persons eligible for promotion,
of whom three must be blacks, Latins, or women. We success-
fully argued in the district court that the ordinance did
not violate the consent decree and the union appealed to the
Eleventh Circuit Court of Appeals.
II. Position of the U.S. Our brief notes that the
Title VII and constitutional challenges to the ordinance were
neither addressed nor decided by the trial court, and are
therefore not before the court in this appeal. We argue that
because the consent decree has been authoritatively interpreted
by the court of appeals in an earlier appeal of this case as
contemplating the use of racial and gender-based preferences
in the actual promotion of employees, it follows that the de-
cree does not prohibit the use of such preferences in certi-
fying a list of promotional candidates. We suggest that the
Supreme Court's Stotts decision calls into question the va-
lidity of the provisions of the consent decree previously in-
terpreted to contemplate preferential selection of minorities,
but note that this question must first be raised in and decided
by the trial court. Accordingly, we conclude that the district
court's decision is due to be affirmed.
- 2 -
III. Relationship to Administration Philosophy:
This brief does not directly implicate any Administration
policy. It simply says that the consent decree, entered into
during a prior Administration, does not itself prohibit the
racially preferential certification procedure at issue in
this case. A footnote suggests that the legal validity of
the decree is questionable after the Stotts decision, a
suggestion that is consistent with the Administration view
that a court may not order preferential treatment relief
benefiting nonvictims of discrimination. A definite position
on this question, however, can only (and will) be taken in
the district court in the first instance.
IV. Anticipated Criticism and Planned Department of
Justice Response:
Criticism: The Administration has "signed off" on
"reverse discrimination."
Response: The Justice Department has not taken a
concrete position on these questions because they are simply
not before the Court of Appeals. These issues must be decided
by the district court in the future. Any position we take
concerning the legality of the decree or the ordinance will
be presented at that time.
Criticism: The Administration has implicitly opposed,
or at least refused to defend, the validity of affirmative
action provisions contained in a consent decree to which the
United States is a party.
Response: Again, we have taken no position on whether
the decree is valid because that is simply not an issue in
this case. As we have previously indicated, we are currently
reviewing all of our decrees to assess whether they are con-
sistent with the Supreme Court's decision in Stotts. Any
decision concerning the continuing legality of the decree at
issue here will be made as part of that overall process.
V. Talking Points:
*
This brief takes no position on the legality of
either the consent decree or the City's ordinance
because these issues are not properly at issue in
this case.
*
Any decision on the legality of the decree or ordin-
ance will be made in the future and will be addressed
by the district court.