OBURN v. SHAPP

OPINION OF THE COURT

GARTH, Circuit Judge.

Despite the insistence of the parties that we reach the merits of "reverse discrimination", a most troublesome subject, we resist the invitation and instead address ourselves to the narrow issue that is before us: did the district court abuse its discretion in denying a preliminary injunction sought by the plaintiffs. The plaintiffs, white applicants, for the position of state trooper in Pennsylvania, assert that the defendants are discriminating against them by hiring members of minority groups1 through the use of racial quotas which exclude plaintiffs. Their application for preliminary injunction was denied by the district court. We hold that the district court did not abuse its discretion and therefore, we affirm the district court's denial of the preliminary injunction.

I. BACKGROUND

Admission to the Pennsylvania State Police is achieved by competitive selection procedures. Enlisted members of the State Police Force (state troopers) are appointed by the Commissioner of the Pennsylvania State Police, see 71 P.S. § 65 (1975 Supp.), after having first satisfied certain criteria and qualification standards established by statute, see 71 P.S. § 1193 (1962), and by the rules and regulations promulgated by the Commissioner, see 71 P.S. § 251 (1975 Supp.). The eligibility criteria currently in effect, and which were in effect when the individual plaintiffs in these appeals made employment application to the State Police, were established as interim standards2 under a Consent Decree. The Consent Decree was entered in Bolden, et al. v. Pennsylvania State Police, et al., C.A. No. 73-2604 (E.D.Pa. June 21, 1974), an action alleging discrimination brought by a black against the Pennsylvania State Police.

The Bolden litigation sought to remedy the prior discriminatory (against minorities) employment and promotion policies of the Pennsylvania State Police. The Consent Decree, entered as a final judgment in Bolden,3 establishes a temporary hiring goal for the State Police and revises the hiring procedures of the State Police pending the development of employment tests validated as being job related. Cf. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). The hiring goal provides that from all qualified applicants eligible as state troopers, at least one-third of those selected for the State Police Academy shall be minorities. This hiring ratio of one-minority applicant for every two non-minority applicants is to be followed until 9.2% of "the enlisted complement of the Pennsylvania State Police consists of minorities."4

As validated employment criteria have yet to be developed, the interim standards and procedures established in Bolden govern the selection of qualified applicants. An applicant must meet preliminary requirements5 and have an initial interview before taking a written examination. See Bolden Consent Decree, ¶ I.3.(a), (b); App. at 42-44. The interim written examination is administered and graded by the Pennsylvania Civil Service Commission ("Commission"). The Commission determines the passing score of the written examination. See Bolden Consent Decree, ¶ I.3.(c); App. 44.

From among those who attain a passing score on the written examination, the State Police select applicants for "further processing." The selection of applicants proceeds in the order of the applicants' written test scores subject to the requirement that

Bolden Consent Decree, ¶ I.3.(d)(1) (emphasis supplied); App. at 44.

Those applicants selected for further processing must pass a physical examination; an oral interview; and undergo a background investigation. Bolden Consent Decree, ¶ I.3.(d)(3), (4) and (5); App. at 45-47. Applicants successfully meeting these requirements are then assigned a "final earned rating" derived from a weighted average of the written examination and oral interview. Eligible applicants are ranked in sequential order of their final earned ratings and are selected for admission into the Academy in the order of their rank, subject to the minimum one-third ratio for the hiring of minorities.6

II. FACTUAL & PROCEDURAL SETTING

The instant appeals, both class actions brought pursuant to 28 U.S.C. §§ 1331, 1343(3),7 arise out of two separate actions challenging the selection of a cadet class by the interim standards established in the Bolden Consent Decree. Plaintiffs' challenge to the composition of the cadet class convening March 6, 1975, focuses on the September 4, 1974 written examination given to applicants for the Pennsylvania State Police. As mandated by the Bolden Consent Decree, the Commission administered and graded the written examination. The Commission established as the minimum passing score 60 correct answers out of 120 questions on the written examination.8 In Oburn v. Shapp, 393 F.Supp. 561 (E.D.Pa.1975) (hereinafter the Oburn case), the individual plaintiffs were white9 applicants who scored 60 or more on the written examination.10 In their complaint they assert that they were eliminated from "further processing" even though minority applicants with lower scores on the written examination were selected for "further processing." The Oburn plaintiffs allege that in order for the defendants to comply with the interim hiring goal of one-third minority candidates, all non-minority applicants who scored below 92 on the written examination had to be eliminated from "further processing," while minority applicants who scored 65 or better on the written examination were "processed further." Thus, the Oburn plaintiffs allege that they were unconstitutionally denied equal protection of the laws because they were eliminated from "further processing" in favor of minority applicants solely on the basis of plaintiffs' race and national origin.

Although the plaintiffs in the companion case of Lutz v. Shapp, 393 F.Supp. 561 (E.D.Pa.1975) (hereinafter the Lutz case) assert a legally identical theory of "reverse discrimination," they do so under factually different circumstances. The individual plaintiffs in Lutz were white applicants who scored 92 or better on the written examination and accordingly were afforded an oral interview, a physical examination and a background investigation. Based upon their scores, the individual plaintiffs in Lutz were assigned a final earned rating and were ranked in order of their rating along with the other applicants who were "processed further."11 In this action, the Lutz plaintiffs assert that they were denied admission into the cadet class although they achieved a higher final earned rating than most minority applicants who were accepted. The Lutz plaintiffs assert that but for the one-third minority hiring goal, they would have been admitted to the cadet class.12

III. PRELIMINARY INJUNCTION

In both cases before us, plaintiffs have appealed only from the denial of their separate motions for a preliminary injunction. We emphasize the nature of these appeals as it necessarily affects the scope of our review and the burden that must be met by the appellant. See Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310, 316-17, 60 S.Ct. 517, 84 L.Ed. 774 (1940); see generally 9 J. Moore, Federal Practice ¶ 110.25[1] (2d ed. 1973). The burden on the appellant to secure a reversal is high, Scooper Dooper, Inc. v. Kraftco Corp., 460 F.2d 1204 (3d Cir. 1972), and our scope of review is limited to:

Commonwealth of Pennsylvania ex rel. Creamer v. United States Dept. of Agriculture, 469 F.2d 1387, 1388 (3d Cir. 1972).13 Accord Delaware River Port Auth. v. Transamerican Trailer Transp., 501 F.2d 917 (3d Cir. 1974); Croskey Street Concerned Citizens v. Romney, 459 F.2d 109, 112 (3d Cir. 1972) (Aldisert, J., concurring). The instant appeals involve neither an error of law nor a clear mistake in the consideration of the proof.14 Rather, we are presented with the sole question of whether the district court's denial of the injunction clearly constituted abuse of permissible discretion. See United States v. Corrick, 298 U.S. 435, 56 S.Ct. 829, 80 L.Ed. 1263 (1936); Meccano, Ltd. v. John Wanamaker, 253 U.S. 136, 141, 40 S.Ct. 463, 64 L.Ed. 822 (1920); 7 J. Moore, Federal Practice, ¶ 65.04[2] (2d ed. 1974).

In measuring the district court's consideration of appellants' motions for preliminary injunctive relief, we recognize that the moving party must generally show (1) a reasonable probability of eventual success in the litigation and (2) that the movant will be irreparably injured pendente lite if relief is not granted. Delaware River Port Auth. v. Transamerican Trailer Transp. Inc., supra at 919-20; see A. L. K. Corp. v. Columbia Pictures, Inc., 440 F.2d 761, 763 (3d Cir. 1971). Moreover, while the burden rests upon the moving party to make these two requisite showings, the district court "should take into account, when they are relevant, (3) the possibility of harm to other interested persons from the grant or denial of the injunction, and (4) the public interest." Delaware River Port Auth. v. Transamerican Trailer Transp., Inc., supra at 920.

In the context of this dispute, the district court properly considered all four factors, and as its opinion reveals, engaged in the required balancing of interests. See Yakus v. United States, 321 U.S. 414, 440, 64 S.Ct. 660, 88 L.Ed. 834 (1944). We therefore turn to an examination of the four factors explored by the district court to determine if the district court abused its discretion in denying the plaintiffs a preliminary injunction.

1. "Reasonable Probability of Eventual Success"

It is not necessary that the moving party's right to a final decision after trial be wholly without doubt; rather, the burden is on the party seeking relief to make a prima facie case showing a reasonable probability that it will prevail on the merits. See Croskey Street Concerned Citizens v. Romney, supra at 111; Crowther v. Seaborg, 415 F.2d 437, 439 (10th Cir. 1969).

Plaintiffs claim that they have made the requisite showing of a likelihood of success upon the merits after a full hearing. They argue that the standards of selection in hiring utilized by the defendants as mandated by the Bolden Consent Decree provides for the imposition of racial classifications by an arm of the state. Any such racial classifications by a state, they claim, is presumptively invalid under the Equal Protection Clause of the Fourteenth Amendment and may be permitted only where there is shown an overriding statutory purpose and a compelling state interest. See Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964). Plaintiffs urge that this stringent standard is not met under the circumstances of this case as racial classifications in the guise of racial quotas are either per se unconstitutional or are not justified here by a "compelling state interest." Appellants' Brief at 18. Moreover, plaintiffs urge that the district court erred in holding that plaintiffs had not shown a likelihood of success in that the district court considered the Bolden proceedings in which plaintiffs were not parties. Appellants' Brief at 25-31; see Hansberry v. Lee, 311 U.S. 32, 41, 61 S.Ct. 115, 85 L.Ed. 22 (1940).

Defendants, on the other hand, urge that the district court properly determined that plaintiffs failed to demonstrate a probability that plaintiffs would prevail on the merits. First, defendants assert that plaintiffs' suit is an improper collateral attack on the Bolden Consent Decree. See, e.g., Black and White Children of the Pontiac School System v. School District of Pontiac, 464 F.2d 1030 (6th Cir. 1973); Miller v. Meinhard-Commercial Corp., 462 F.2d 358, 360 (5th Cir. 1972); Burns v. Board of School Commissioners, 437 F.2d 1143 (7th Cir. 1971). Second, defendants assert that the Bolden Consent Decree was fashioned to remedy employment discrimination against minorities and that to grant plaintiffs' motion would reinstate the very discrimination which the district court in Bolden sought to eradicate.15 Third, defendants argue that the use of racial quotas to correct past discriminatory procedures is not constitutionally objectionable under present circumstances.

We turn first to plaintiffs argument that their due process rights were violated when the district court took judicial notice of the Bolden litigation. The consequence of this action, plaintiffs claim, was to bind them to the Bolden judgment even though the plaintiffs were not parties to that earlier litigation.16 See Blonder-Tongue Lab., Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Hansberry v. Lee, supra; Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840 (3d Cir. 1974). At this stage of the proceedings, however, and upon this abbreviated record, we cannot dispose of the arguments addressed to the Bolden litigation. The record before us is incomplete and has yet to be closed with respect to proofs which bear upon this issue.17 Moreover, we find it unnecessary to consider this issue at this time. From our examination of the record before us, we conclude that apart from Bolden there is a sufficient evidentiary basis to sustain the district court's holding that the plaintiffs do not have a likelihood of success.18

Plaintiffs next argue that racial quotas in hiring subjects white applicants such as plaintiffs to unconstitutional treatment. This argument rests on two alternative premises, both of which fail to establish plaintiffs' likelihood of success on the merits. Plaintiffs contend first that a racial classification by a state is unconstitutional per se. Appellants' Brief at 18. Alternatively, they claim that if the racial classifications here are not unconstitutional per se, they are nevertheless unconstitutional in that a "compelling state interest" is absent. Appellants' Brief at 22.

The short answer to plaintiffs' first assertion is that while classifications based on race are suspect and require the most stringent judicial scrutiny, where utilized to formulate a remedy against discrimination they have yet to be held unconstitutional per se. See Board of Education v. Swann, 402 U.S. 43, 46, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971); NAACP v. Allen, 493 F.2d 614, 618-19 (5th Cir. 1974); United States v. Wood, Wire & Lathers, Intl. Union, 471 F.2d 408 (2d Cir.), cert. denied, 412 U.S. 939, 93 S.Ct. 2773, 37 L.Ed.2d 398 (1973); Porcelli v. Titus, 431 F.2d 1254, 1257-58 (3d Cir.), cert. denied, 402 U.S. 944, 91 S.Ct. 1612, 29 L.Ed.2d 112 (1970); CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 931-32 (2d Cir. 1968). Indeed, courts of appeals other than our own have held it to be reversible error for a district court to withhold quota relief where other forms of remedy failed to eliminate racially discriminatory practices or effects. See Morrow v. Crisler, 491 F.2d 1053 (5th Cir.) (en banc), cert. denied, 419 U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974); Reed v. Arlington Hotel Co., 476 F.2d 721 (8th Cir.), cert. denied, 414 U.S. 854, 94 S.Ct. 153, 38 L.Ed.2d 103 (1973); cf. Patterson v. Newspaper and Mail Deliverers' Union, 514 F.2d 767 (2d Cir. 1975) (Title VII action); Erie Human Relations Commission v. Tullio, 493 F.2d 371, 374 (3d Cir. 1974).

Plaintiffs' alternate theory is that they enjoy a likelihood of success in establishing that defendants have no "compelling state interest" sufficient to justify the utilization of racial classifications.19 They argue that in the circumstances of this case any interest of defendants in utilizing racial quotas cannot be deemed compelling. Defendants, however, claim that they have properly used racial quotas to end the perpetuation of prior employment practices discriminatory in respect to racial minorities. Defendants contend that their interest in offsetting prior racially discriminatory practices and the effects of such practices, constitutes a remedial purpose sufficient to warrant the use of racial quotas.20

After considering the opposing contentions of the parties, we find that the record to date favors the position taken by defendants. Determination of a "compelling state interest" depends upon the circumstances of each case. Here, plaintiffs already have conceded, as they must, that the practices of the Pennsylvania State Police in past years discriminated against racial minorities.21 Moreover, there is evidence in the record that the defendants adopted racial hiring quotas and new testing procedures under the Bolden Consent Decree, which was structured to correct racially discriminatory practices.22 Consequently, given these portions of the record before us, we cannot say that the district court acted improvidently in concluding that plaintiffs failed to make the requisite showing that they have a substantial likelihood of success on the merits.23

2. Irreparable Injury

A party moving for preliminary injunctive relief must carry the burden of showing irreparable injury. See Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974); Yakus v. United States, 321 U.S. at 439-40, 64 S.Ct. 660; Sims v. Greene, 161 F.2d 87, 89 (3d Cir. 1947). "A finding of no irreparable harm is itself sufficient to uphold the district court's denial of a preliminary injunction as a proper exercise of discretion." Commonwealth of Pennsylvania ex rel. Creamer v. United States Dept. of Agriculture, 469 F.2d 1387, 1388 (3d Cir. 1972). While what may constitute irreparable harm in a particular case is, of course, dependent upon the particular circumstances of the case, we cannot say that the district court's finding here that plaintiffs would not suffer irreparable harm was clearly erroneous. See Sims v. Greene, supra.

Plaintiffs assert numerous grounds to support their allegations of irreparable injury. Appellants' Brief at 36-37. Their allegation that they have been irreparably harmed by the denial of Fourteenth Amendment rights is not compelling. Earlier in this opinion we indicated serious doubt with the validity of the legal premises underlying that claim of constitutional deprivation. See III.1. supra; Delaware & Hudson Ry. Co. v. United Transp. Union, 146 U.S.App.D.C. 142, 450 F.2d 603, cert. denied, 403 U.S. 911, 91 S.Ct. 2209, 29 L.Ed.2d 689 (1971).

The plaintiffs also claim that if the March 6, 1975 cadet class is not enjoined they will suffer a loss of those benefits derived from state employment.24 However, we do not regard losses such as these as constituting irreparable injury. Such losses may be remedied by appropriate judicial decrees if the plaintiffs should prove successful. See Sampson v. Murray, supra. Such judicial relief may properly include provisions for employment, back-pay, fringe benefits and the like. In holding, as we do, that the district court's finding is not clearly erroneous we have been guided by the consideration that:

Virginia Petroleum Jobbers Ass'n v. FPC, 104 U.S.App.D.C. 106, 259 F.2d 921, 925 (1958) (emphasis in original), quoted with approval in Sampson v. Murray, 415 U.S. at 90, 94 S.Ct. at 953.

3. The Public Interest and

4. Other Interested Parties

Absent a showing of irreparable injury the district court was obliged to deny the plaintiffs' motion for a preliminary injunction. Commonwealth of Pennsylvania ex rel. Creamer v. United States Dept. of Agriculture, 469 F.2d at 1388; National Land & Investment Co. v. Specter, 428 F.2d 91, 97 (3d Cir. 1970). Having concluded that the district court had not abused its discretion, we would normally say no more. It seems appropriate, however, because of the public nature of this controversy, to complete our discussion by briefly referring to the remaining factors generally considered on an application for preliminary injunction.

A balancing of the rights of both parties involved here and a weighing of the potential detriment to the public interest and other interested parties, clearly favors the action taken by the district court. It is uncontroverted that the Pennsylvania State Police were in need of additional state troopers at the time the March 6, 1975 cadet class was convened.25 Although witnesses testified that the state police were operating efficiently even though understaffed,26 such evidence cannot, standing alone, establish that the public interest would not be adversely affected by enjoining the cadet training. In considering where the public interest lies, it is essential to evaluate the possible effects upon the public from the grant or denial of injunctive relief. Here, the district court determined that an inadequately staffed state police force would raise the possibility of substantial harm to the public interest. We agree.

Moreover, this record, to the extent that it has been developed, provides no support for the plaintiffs' assertion that the public interest in an adequately staffed state police force will be frustrated unless the best individuals are selected as cadets. Perhaps as a general proposition, there is merit to this suggestion. However, on this record, there is no basis for holding that the district court was clearly erroneous in its finding that the minority members of the cadet class who had a final earned rating lower than plaintiffs' were not less competent than plaintiffs. See 393 F.Supp. at 574-75. All the minority candidates had attained a passing score on the written examination and, absent a job-validation of the examination procedures, there is no warrant to conclude that a higher-scoring applicant would be more qualified to be a state trooper than a lower-scoring applicant. Thus, even accepting plaintiffs' theory that the public interest would be thwarted unless the most competent candidates were admitted to the Academy, this record fails to demonstrate that the most competent were not admitted.

Finally, we agree with the district court that consideration of the interests of third parties also weighs against the granting of a preliminary injunction. There can be no dispute that the minority and non-minority applicants admitted to the March 6, 1975 cadet class would be adversely affected by the grant of an injunction which interrupts and may preclude their continued training and employment as state troopers. Even if we were to assume contrary to our holding, see supra p. 150, that plaintiffs suffer irreparable harm by their exclusion from the March 6, 1975 cadet class, it is nevertheless apparent that to the extent that plaintiffs would avoid injury to themselves by the grant of a preliminary injunction, those currently enrolled in the March 6, 1975 cadet class would suffer injury by the grant of the injunction.

Delaware River Port Auth. v. Transamerican Trailer Transp., Inc., 501 F.2d at 924.

IV. CONCLUSION

Our review of the district court's consideration of the applicable standards for issuing a preliminary judgment reveals that the district court in its denial of the injunctive relief sought did not abuse its permissible discretion, did not err as a matter of law, and did not make a clear mistake in the consideration of the proof. We wish to make clear, however, that our affirmance of the district court's action does not preclude the plaintiffs from fully developing their case at a final hearing. This Court's prior statement in National Land is appropriate in these proceedings:

National Land & Investment Co. v. Specter, supra at 100.

We will affirm the order of the district court.