The opinion of the court was delivered by: HAIGHT
MEMORANDUM OPINION AND ORDER
This action was commenced as a special proceeding pursuant to Article 78 in the Supreme Court of the State of New York against the State of New York Office of Court Administration ("OCA") and the New York State Civil Service Commission
seeking a determination that the OCA's refusal to grant a preference in hiring to provisional Uniformed Court Officers ("UCOs") appointed after May 21, 1980 was arbitrary and capricious. Plaintiffs, who are provisional UCOs appointed after that date, base their claim on the OCA's failure to terminate provisional UCOs within nine months after their appointment, a failure which plaintiffs allege violates state civil service law. Plaintiffs seek an order enjoining defendants "from refusing to grant petitioners preference for permanent employment as Uniformed Court Officers, provided they pass[ed] the May 22, 1982 examination" (Notice of Petition at 9).
The state court defendants removed the suit to federal court alleging removal jurisdiction under 28 U.S.C. § 1443, the civil rights removal statute. The case was assigned to the undersigned as related to Underwood v. State of New York Office of Court Administration, et al, 78 Civ. 4832, in which this Court is adjudicating a racial challenge to the hiring practices for UCOs. Plaintiffs have now filed papers in opposition to removal which I treat as a motion to remand this case back to state court.
The Underwood case was filed in 1978 by a class of minority plaintiffs seeking positions as UCOs in the New York State court system. The suit, brought against the OCA, the Chief Administrative Judge of the State of New York and various officers of the New York State Civil Service Commission and Department of Civil Service, challenged the validity of an examination for the position of UCO administered in December, 1977. Plaintiffs claimed that the examination unconstitutionally discriminated against them in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000(e) et seq.
Shortly after the suit was commenced, defendant OCA agreed to refrain from making permanent UCO appointments on the basis of the challenged examination; provisional appointments were made during the course of the litigation. Extended negotiations between the parties resulted in a settlement agreement which was approved by this Court in a Memorandum Opinion and order dated May 21, 1980 following a settlement hearing on March 21, 1980. The terms of the settlement, embodied in the form of a consent judgment entered on June 30, 1980, voided the December examination and required a new examination in compliance with the requirements of Title VII. The parties agreed to the appointment of a Special Master to review the design and development of the new examination, which was administered on May 22, 1982.
With regard to provisional appointments, paragraph 5 of the June 30, 1980 consent judgment provides as follows:
"5. Defendant OCA shall not terminate any provisional appointments to the UCO title without cause or, alternatively, without budgetary or other business reasons, until such time as the new selection procedure is developed and administered. This paragraph shall not be construed to require defendant OCA to terminate such provisional appointments in a manner other than that permitted under New York State law."
In a Memorandum Opinion and Order dated May 21, 1982, this Court interpreted this paragraph to mean, in art, "that provisional UCO's were not [to be] terminated because of their status as provisional UCO's. . . ." Slip op. at 3.
The settlement left open and certified to this Court the question of whether provisional UCOs who were hired prior to and during the pendency of the suit should be granted a preference in appointment upon passing the new UCO examination. Excercising the general equity powers of the Chancellor, I ruled in the May 21, 1980 opinion and order approving the settlement that those individuals serving as provisional UCOs as of that date would be granted a preference upon passing the new examination. I emphasized that "the preference here is a limited one-time remedy which leaves the merit system intact for future appointments and promotions," slip op. at 31 (emphasis added); it served the purpose of "retaining trained, qualified employees who have been performing successfully on the job for, in many cases, a number of years." Id. at 32. The Court of Appeals affirmed the grant of the preverence as so limited, observing that this limited preference "does not undermine the merit-oriented philosophy of the New York Civil Service System." 641 F.2d 60, 62 (2d Cir. 1980).
In a Memorandum Opinion and Order dated May 22, 1981 I denied a motion to intervene and amend the judgment which was brought by certain individuals who did not receive provisional appointments until after May 21, 1980. Declining to enlarge the preference to include these individuals, I reemphasized the significance of the limited nature of the preference and noted that the subsequently appointed provisionals had at least constructive knowledge of the May 21, 1980 decision and order. Slip op. at 2-3. I concluded that "[e]nlargement of the preferred pool in these circumstances would unjustifiably undermine the merit system." Id. at 3.
28 U.S.C. § 1443 permits removal of civil rights cases from state to federal court in three situations. Section 1443(1) permits a defendant to remove when he is denied or cannot enforce in state court a right secured by a federal equal rights law. See Georgia v. Rachel, 384 U.S. 780, 16 L. Ed. 2d 925, 86 S. Ct. 1783 (1966). The first clause of Section 1443(2), the "color of authority" clause, permits a defendant to remove when sued for acting under color of authority derived from a federal equal rights law. Along with Section 1443(1), the color of authority clause is available only to "federal officers or agents and those authorized to act with or for them in affirmatively executing duties under any federal law providing for equal civil rights." Greenwood v. Peacock, 384 U.S. 808, 824, 16 L. Ed. 2d 944, 86 S. Ct. 1800 (1966). The second clause of Section 1443(2), the "refusal to act" clause, permits a defendant to remove when sued for refusing to act on the ground that so acting would be inconsistent with a federal equal rights law. The refusal to act clause is available "to state ...