At a stated term of the United States Court of Appeals, in and for the Second Circuit, held at the United States Courthouse, in the City of New York, on the 10th day of December, one thousand nine hundred and seventy-five.
Mulligan, Timbers, Gurfein, Van Graafeiland, Meskill, Kaufman, Mansfield, Oakes, Circuit Judges. Kaufman, Chief Judge. Oakes, Judges. Mansfield, Circuit Judge dissenting with whom Chief Judge Kaufman and Judge Oakes concur.
A petition for rehearing, 520 F.2d 420, containing a suggestion that the action be reheard en banc, having been filed herein by counsel for the plaintiffs-appellees, and a poll of the judges in regular active service having been taken, and Circuit Judges Mulligan, Timbers, Gurfein, Van Graafeiland, and Meskill having voted against en banc reconsideration, and Chief Judge Kaufman and Circuit Judges Mansfield and Oakes having voted in favor thereof, and an opinion by Circuit Judge Mansfield dissenting from denial of en banc reconsideration, in which Chief Judge Kaufman and Circuit Judge Oakes join, and an opinion by Chief Judge Kaufman dissenting from denial of en banc reconsideration, having been filed,
Upon consideration thereof, it is
Ordered that said request be and it hereby is denied.
Circuit Judge Feinberg took no part in consideration of the question whether to grant rehearing en banc.
MANSFIELD, Circuit Judge, dissenting with whom Chief Judge Kaufman and Judge Oakes concur.
I dissent from the denial of an en banc hearing in this appeal because the decision potentially places us in conflict with previous decisions in this and other circuits and creates uncertainty regarding this circuit's law on a question of exceptional importance that has been and will be frequently encountered, i.e., whether, and under what circumstances, relief in the nature of a racial goal or quota may be imposed to remedy injury caused to a minority group by use of racially discriminatory methods to hire or promote persons from a pool of potentially eligible candidates. In my view this question should be resolved now for the guidance of district court judges, members of the bar and litigants in the Second Circuit, rather than leaving them in a state of confusion regarding the issue.
Until the decision in this case, while adopting a cautionary stance and acting "somewhat gingerly," we nonetheless repeatedly have held that where racially discriminatory methods are used to hire or promote persons in violation of the civil rights of others, the district court should have the discretionary power to remedy the effects of the unlawful conduct and compensate the injured class by requiring the hiring or appointment of a higher percentage of minority applicants. United States v. Wood, Wire & Metal Lathers, Local 46, 471 F.2d 408 (2d Cir.), cert. denied, 412 U.S. 939, 37 L. Ed. 2d 398, 93 S. Ct. 2773 (1973); Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, 482 F.2d 1333 (2d Cir. 1973); Vulcan Society of the New York City Fire Dept. v. Civil Service Commission, 490 F.2d 387 (2d Cir. 1973); Rios v. Enterprise Association Steamfitters, Local 638, 501 F.2d 622 (2d Cir. 1974); Patterson v. Newspaper & Mail Deliverers Union, 514 F.2d 767 (2d Cir. 1975).
The authority of a court of equity to issue such relief was recognized by the Supreme Court in Louisiana v. United States, 380 U.S. 145, 13 L. Ed. 2d 709, 85 S. Ct. 817 (1965), where Justice Black, speaking for a unanimous Court, stated:
"We bear in mind that the court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future." 380 U.S. at 154.
This was followed by the Court's recognition in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 28 L. Ed. 2d 554, 91 S. Ct. 1267 (1971), that mathematical ratios might serve as a "useful starting point" in shaping a remedy for past constitutional violations. 402 U.S. at 25. Following this lead we, in United States v. Wood, Wire & Metal Lathers, Local 46, 471 F.2d 408 (2d Cir. 1973), approved an order directing a local union to take affirmative action to remedy the effects of past discriminatory practices in the issuance of work permits by issuing 100 permits immediately to minority applicants, pointing out that
"While quotas merely to attain racial balance are forbidden, quotas to correct past discriminatory practices are not. See Carter v. Gallagher, 452 F.2d 315, 329 (8th Cir. 1971) (en banc), cert. denied, 406 U.S. 950, 92 S. Ct. 2045, 32 L. Ed. 2d 338 (1972); Contractors Association of Eastern Pennsylvania v. Secretary of Labor, 442 F.2d 159, 173 n.47 (3rd Cir.), cert. denied, 404 U.S. 854, 92 S. Ct. 98, 30 L. Ed. 2d 95 (1971); United States v. Ironworkers, Local 86, 443 F.2d 544, 553 (9th Cir.), cert. denied, 404 U.S. 984, 92 S. Ct. 447, 30 L. Ed. 2d 367 (1971); United States v. International Brotherhood of Electrical Workers, No. 38, 428 F.2d 144, 149 (6th Cir.), cert. denied, 400 U.S. 943, 91 S. Ct. 245, 27 L. Ed. 2d 248 (1970); Local 53 of International Association of Heat & Frost I. & A. Workers v. Vogler, 407 F.2d 1047, 1052 (5th Cir. 1969); United States v. Central Motor Lines, Inc., 325 F. Supp. 478 (W.D.N.C. 1970)." 471 F.2d at 413.
There followed our decision in Bridgeport Guardians, Inc. v. Bridgeport Civil Service Commission, 482 F.2d 1333 (2d Cir. 1973), wherein we upheld the use of a hiring quota to remedy the discriminatory effect of non-job-related examinations administered pursuant to the Civil Service provisions of the Bridgeport City Charter for the position of policeman, stating:
"We commence with the basic tenet that the district court, sitting as a court of equity, has wide power and discretion to fashion its decree not only to prohibit present discrimination but to eradicate the effects of past discriminatory practices. Louisiana v. United States, 380 U.S. 145, 154, 85 S. Ct. 817, 13 L. Ed. 2d 709 (1965); United States v. Wood, Wire & Metal Lathers, Local 46, 471 F.2d 408, 413 (2d Cir.), cert. denied, 412 U.S. 939, 93 S. Ct. 2773, 37 L. Ed. 2d 398 (1973). Although most of the cases dealing with the issue of past discriminatory practices arose under Title VII of the Civil Rights Act of 1964, Section 1983 cases have also granted relief by sanctioning quotas aimed at curing past discrimination. See, e.g., Pennsylvania v. O'Neill, 473 F.2d 1029 (3d Cir. 1973) (en ...