USCA1 Opinion
August 18, 1992 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1120
MASSACHUSETTS ASSOCIATION OF AFRO-AMERICAN POLICE, INC., ET AL.,
Plaintiffs, Appellees,
v.
THE BOSTON POLICE DEPARTMENT, ET AL.,
Defendants, Appellees.
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BOSTON POLICE SUPERIOR OFFICERS FEDERATION,
Intervenor, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Roney,* Senior Circuit Judge,
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and Pieras,** District Judge.
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James F. Lamond with whom Alan J. McDonald and McDonald, Noonan
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and Lamond were on brief for intervenor-appellants, Boston Police
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Superior Officers Federation.
Jonathan M. Albano with whom Marianne Meacham, Bingham, Dana &
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Gould, Alan J. Rom, and Lawyers Committee for Civil Rights were on
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brief for appellee, Massachusetts Association of Minority Law
Enforcement Officers.
William W. Porter, Assistant Attorney General, with whom Scott
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Harshbarger, Attorney General, was on brief for appellee, Personnel
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Administrator of the Massachusetts Department of Personnel
Administration.
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* Of the Eleventh Circuit, sitting by designation.
** Of the District of Puerto Rico, sitting by designation.
PER CURIAM:
The appeal in this racial discrimination case involving the
employment and promotion of police officers in the Boston Police
Department (BPD) must be dismissed because, to the extent the
appellant, Boston Police Superior Officers Federation (Federation),
has standing, the challenge to the district court's amendment to a
prior consent decree is not ripe for judicial review at this time.
An understanding of the litigation that led to the original
consent decree and its amendment in 1991 is of interest but not
necessary to the decision on this appeal. The Massachusetts
Association of Minority Law Enforcement Officers (MAMLEO),1 filed the
original action in 1978 against the BPD and the Department of
Personnel Administration (DPA) alleging unlawful employment,
compensation, and promotional practices based on race in violation of,
inter alia, Title VII of the Civil Rights Act of 1964, 42 U.S.C.
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2000e et seq. In 1980, the district court approved a consent decree
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to which all parties agreed.
The consent decree certified a class consisting of all present
and future Black officers in the BPD, and established goals and
timetables for the promotion of specified numbers of qualified Black
officers to the rank of sergeant. The decree also required that the
examinations for promotion be validated in accordance with the Uniform
Guidelines on Employee Selection Procedures, 29 C.F.R. 1607.1 et
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1 MAMLEO is the successor organization to the Massachusetts
Association of Afro-American Police which brought the underlying suit.
MAMLEO now acts as the plaintiff in this action.
seq., and required the BPD to provide training for all persons
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planning to take promotional examinations, with equal access to
minority applicants.
After certain intervening procedures and modifications, the
MAMLEO challenged the DPA's administration of state-wide police
promotional examinations scheduled for June 19, 1991 for sergeants,
lieutenants, and captains. After court rulings which, among other
things, permitted the DPA to administer the 1991 exams as scheduled,
the parties jointly filed an Agreement to Amend the Consent Decree to
settle MAMLEO's challenge to the 1991 exams.
The Federation, an organization representing sergeants,
lieutenants, and captains in the police force, was allowed to
intervene for the limited purpose of opposing the amendment to the
consent decree. The Federation challenges the amendment on this
appeal, as it did in the district court, to the extent that it extends
the terms of the decree to include promotional examinations for the
positions of lieutenant and captain. The Federation maintained that
the initial decree and a 1985 modification governed promotions to
sergeant positions only and did not cover promotions to lieutenant and
captain. It argues that the district court exceeded its authority in
applying the consent decree to lieutenants and captains. The merits
of that contention are not relevant to our decision that the case is
not ripe for review.
Under the terms of the amended decree, the BPD would limit the
promotions to the ranks of lieutenant and captain from the eligible
lists established from the results of the June 1991 examinations. The
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BPD had set forth its estimates of the numbers of promotions that its
staffing needs and budget constraints would permit during the next
year. It agreed that such constraints "will permit the promotion of
no more than twenty-five (25) officers to the rank of captain and six
(6) officers to the rank of lieutenant and agree[d] that it will not
promote more than that number of lieutenants and captains from the
1991 eligible list without plaintiff's consent, or, in the absence
thereof, leave of Court."2
The Federation challenges the consent decree on behalf of its
members who took the 1991 examinations, were put on promotional lists
for lieutenant and captain, and might be bypassed because of the
consent decree without being fairly considered for an appointment.
Until the situation arises, however, where there is a likelihood of a
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2 The district court recited the "salient features of the Agreement"
as follows:
1. Appointment of 85 sergeants from the list of patrolmen
who passed the 1991 examination. The BPD will use its best
efforts to increase the number of African-American sergeants
to 40, which would satisfy its obligations under the consent
decree;
2. Appointment of six lieutenants from the 1991 list;
3. Appointment of 35 [sic] captains from the 1991 list;
4. Offering a new state-wide examination for police
promotions in June of 1992, with the option to the BPD to
offer a special examination for Boston, provided that all
such examinations are certified as complying with the Uniform
Guidelines on Employee Selection Procedures and the 1991
lists will not be merged with the lists generated by the 1992
examinations; and
5. Termination of the consent decree and of this lawsuit upon
the completion of the above.
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vacancy for an appointment over and above the number of appointments
(25 captains, 6 lieutenants) specifically exempted under the consent
decree, there is no justiciable issue ripe for decision of whether the
consent decree would indeed result in such a person not being fairly
considered.
Ripeness doctrine is grounded in both Article III concepts and
discretionary reasons of policy. The central concern is whether the
case involves a merely hypothetical dispute. "The question of
ripeness turns on the 'fitness of the issues for judicial decision'
and 'the hardship to the parties of withholding court consideration.'"
Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev.
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Comm'n, 461 U.S. 190, 201 (1983) (citation omitted), quoted in W.R.
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Grace & Co. v. United States Envtl. Protection Agency, 959 F.2d 360,
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364 (1st Cir. 1992). The critical question concerning fitness for
review is whether the claim involves uncertain and contingent events
that may not occur as anticipated, or indeed may not occur at all.
See Lincoln House, Inc. v. Dupre, 903 F.2d 845, 847 (1st Cir. 1990).
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Clearly, the Federation's alleged injury is contingent upon events
that may not occur as anticipated or may not occur at all.
Any injury to the Federation is contingent upon: 1) a decision by
the BPD to promote more than six lieutenants or more than 25 captains,
and 2) the refusal of both the MAMLEO and the district court to allow
an additional promotion to be made from the 1991 lists. We agree with
the district court's conclusion that the "Federations's expectation
that more than six lieutenants are likely to be appointed before June,
1992, is illusory, to say the very least." The Federation's
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expectation that the DPA would want to appoint more than 25 captains
also is illusory. Thus, the Federation's claim is too hypothetical to
be fit for judicial review.
In addition, the Federation has not demonstrated that it will
suffer any hardship if judicial consideration is withheld. The
Federation can hardly claim hardship since the injury it alleges
cannot yet be proven and may never occur. If the contingent events
ever do occur, the Federation may then ask the district court to hear
its challenge to the amendment. There is no concern that the
Federation will lose its right to contest the issues presented on this
appeal. Indeed, the district court has stated: "If the situation
should change ... I will entertain an application for such further
amendment of the decree as the facts warrant." In light of the
contingent nature of the injury alleged by the Federation, and the
absence of any hardship if consideration is withheld, we hold that the
Federation's challenge to the caps in the amended consent decree is
not ripe.
The amended consent decree further stated that the BPD agreed
that its 1992 examinations for the ranks of sergeant, lieutenant, and
captain would be of a "significantly different type and/or scope" than
the 1991 exams. Upon the DPA's determination that the 1992 exams were
significantly different than the 1991 exams, the eligible lists
comprised of candidates who pass the 1992 exams would replace the 1991
eligible lists. The lists would not be merged. Because the
Federation has not yet acquired any rights in the merged or non-merged
lists, the Federation has no standing to contest this provision.
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An inquiry into standing generally seeks to determine "whether
the litigant is entitled to have the court decide the merits of the
dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498,
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95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); United States v. AVX Corp., 962
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F.2d 108 (1st Cir. 1992). The plaintiff must allege a personal stake
in the outcome of the controversy in order to warrant judicial review
and justify the court's use of its remedial powers. Warth, 422 U.S.
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at 498. The injury alleged must be distinct and palpable, and not
abstract or hypothetical. Allen v. Wright, 468 U.S. 737, 751, 104
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S.Ct. 3315, 82 L.Ed.2d 556 (1984). "A mere interest in an event -- no
matter how passionate or sincere the interest and no matter how
charged with public import the event -- will not substitute for an
actual injury." AVX Corp., 962 F.2d at 114. See generally United
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States v. Students Challenging Regulatory Agency Procedures (SCRAP),
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412 U.S. 669, 687, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973).
The Federation has failed to demonstrate a cognizable injury to
its members. The Federation has not shown that the merger provision
of the decree will have an adverse impact on its members' legitimate
promotional expectations. There is no evidence which establishes that
its members will be harmed or affected in any legally meaningful way.
The BPD has full discretion to determine the number of promotions
which are necessary. The DPA has the authority to agree to design
1992 exams which are significantly different from the 1991 exams and
to determine how long to maintain eligibility lists, and when to
cancel them. See Mass. Gen. L. ch. 31, 25. Applicants on
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eligibility lists have no vested interest in the maintenance of the
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lists for any period of time. See Stuart v. Roache, 951 F.2d 446, 455
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(1st Cir. 1991), cert. denied, U.S. , 112 S.Ct. 1948 (1992);
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Burns v. Sullivan, 619 F.2d 99, 104 (1st Cir.), cert. denied, 449 U.S.
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893 (1980). Having no standing to challenge the merger provision in
the district court, the Federation likewise has no standing to pursue
this appeal.
In any event, the merger issue would not be ripe for judicial
decision until the Federation could show that the non-merger would
affect the promotion of at least one of its members. Non-merger is
contingent upon the DPA's determination that the 1991 and 1992 exams
were significantly different. By law, only lists established from
promotional examinations "of the same type" may be merged. Mass. Gen.
L. ch. 31 25. Because the DPA has not yet made any comparison of
the two exams, Federation's challenge is too uncertain to merit
judicial review. W.R. Grace & Co. v. United States Envtl. Protection
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Agency, 959 F.2d 360, 364-65 (1st Cir. 1991). Accordingly, the
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Federation's challenge to the district court's order amending the
consent decree is dismissed. Costs to appellees.
DISMISSED.
DISMISSED.
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