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 groups
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 standards
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,
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 requirements
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.
II. FACTUAL & PROCEDURAL SETTING
The instant appeals, both class actions brought pursuant to 28 U.S.C. §§ 1331, 1343(3),
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."
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 (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).
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.
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.
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.
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.
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.
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;
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.
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
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.
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.
Bolden Consent Decree, ¶ I.3.(a)(1); App. 42.
Bolden Consent Decree, ¶ I.3.(e) (emphasis supplied); App. 47-48.
At the hearing on the motion for preliminary injunction plaintiffs' counsel orally narrowed the scope of the written motion to enjoin only the convening of the cadet class. Transcript of March 4, 1975 Hearing on Preliminary Injunction, supra note 7, at 9. Consequently, as the promotion procedures and the issues surrounding them have yet to be litigated in the district court, they are not before us on these appeals. The issues for our consideration are thus directed only to the selection procedures for hiring additional state troopers.
The interests of minority applicants to and employees of the State Police is sought to be represented in this case by William Bolden, III, plaintiff in the Bolden litigation referred to herein. Bolden's motion to intervene in these proceedings was granted by the district court after the denial of the preliminary injunction. Record, Document No. 10, Oburn, et al. v. Shapp, et al., 393 F.Supp. 561 (E.D.Pa.1975); Record, Document No. 6, Lutz, et al. v. Shapp, et al., 393 F.Supp. 561 (E.D.Pa.1975).
United States Steel Corp. v. Fraternal Ass'n of Steelhaulers, 431 F.2d 1046, 1048 (3d Cir. 1970).
Nonetheless, even in view of these authorities, we share and are aware of the recurring reservations and concerns expressed in the various opinions cautioning against indiscriminate use of racial quotas as remedial devices. Representative of these concerns are:
Morrow v. Crisler, 491 F.2d 1053, 1059-60 (5th Cir.) (en banc) (Clark, J., concurring), cert. denied, 419 U.S. 895, 95 S.Ct. 173, 42 L.Ed.2d 139 (1974); and
Patterson v. Newspaper and Mail Deliverers' Union, 514 F.2d 767, 776 (2d Cir. 1975) (Feinberg, J., concurring).