September 14, 1972
COMMONWEALTH OF PENNSYLVANIA ET AL., APPELLEES, BENJAMIN F. BLACK ET AL., INTERVENOR PLAINTIFFS
JOSEPH F. O'NEILL ET AL., APPELLANTS.
Before ADAMS, ROSEN and HUNTER, Circuit Judges.
Per Curiam: Plaintiffs in this action sue for injunctive relief under 42 U.S.C. §§ 1981 and 1983, and allege that the Philadelphia Police Department unconstitutionally discriminates against blacks in administering its hiring and promoting procedures*fn1 By order dated July 7, 1972, the district court, pursuant to an exhaustive opinion by Judge Fullam, granted plaintiffs' motion for a preliminary injunction. The court enjoined the defendants from hiring or promoting any policemen "except in the ratio of at least one member of the black race for every two members of the Caucasian race."
After having carefully considered the arguments of both sides to this controversy, as presented at oral argument before this Court and in written briefs, and having reviewed with deliberative scrutiny the findings of fact and conclusions of law made by the experienced and able trial judge, we vacate those portions of the order imposing quota systems. We do so not because the trial court erred in making its findings of fact or in stating the applicable law, but because the findings as made, when measured against the appropriate legal standard, do not properly support the particular relief granted*fn2
I. We begin our analysis of this case from the premise that the district court has broad, but not unfettered, discretion in determining whether to grant or deny a motion for a preliminary injunction. See e.g. National Land and Investment Corp. v. Specter , 366 F.2d 91, 95 (3d Cir. 1970); A Quaker Action Group v. Hickel , 421 F.2d 1111, 1115 D.C. Cir. 1969); Unicon Management Corp. v. Koppers Co. , 366 F.2d 199, 204 (2d Cir. 1966). As a corollary of this basic principle, review by an appellate court is limited to the question whether the lower court abused its discretion, or made a clear mistake in considering the proof, or committed an error of law. Accord, Brotherhood of Locomotive Engineers v. Missouri-Kansas-Texas R.R. Co. , 363 U.S. 528, 535 (1960); United States v. Ingersoll-Rand Co. , 320 F.2d 509, 523 (3d Cir. 1963); see generally, 3 W. Barron and A. Holtzoff, Federal Practice and Procedure 510 (1958). Thus, under Rule 52(a) of the Federal Rules of Civil Procedure, we must accept findings of fact made by the district court unless they are "clearly erroneous."*fn3
In this case, the trial judge made findings that the written examination and background investigation disqualify a disproportionate number of black applicants. Although these findings of discriminatory impact were, to a great extent, bottomed upon statistical evidence the accuracy of which defendants attack, we cannot say they are clearly erroneous. Comparing the passing rates of black and white applicants who take the written examination, the lower court found the percentage of passing whites to be approximately 1.82 times as great as the percentage of passing blacks. This finding is not clearly erroneous.
As to the background investigation, plaintiffs conducted an extensive study based upon a list of twenty-five factors representing every category of potentially disqualifying, derogatory information. These factors were used by the Police Department in the evaluation process. The study was based to a considerable degree on an examination of police files containing the investigative reports of all applicants accepted and rejected during the years in question. The trial court's finding, that plaintiffs' evidence concerning the background investigation was sufficiently probative and accurate to warrant use during the preliminary injunction proceeding, is not clearly erroneous. Moreover, Judge Fullam's finding that the rejection rate for black applicants far exceeds the rejection rate for white applicants was supported by the record. Such finding adequately sustains the conclusion that plaintiffs at this preliminary stage have established a prima facie case that the administration and operation of hiring procedures by the Philadelphia Police Department violate the rights of black applicants.
Having made these findings of fact as to the Police Department's hiring practices, the lower court directed that:
"Until further order of this Court, the defendant, their agents, employees and any others acting in their behalf, are preliminarily enjoined from hiring any policemen except in the ratio of at least one member of the black race for every two members of the caucasian race."
Because this order does not, certainly on its face, limit the pool from which applicants are to be chosen to those necessarily qualified to be policemen, the district court has in this respect abused its discretion in formulating an appropriate remedy.
It is well settled that*fn4, in determining whether to grant a preliminary injunction and to formulate relief of an essentially mandatory nature, the district court must weigh the benefits and burdens that either granting or denying the motion may have on the plaintiffs, the defendants, and the public.While the district court found that present hiring practices prima facie discriminate against black applicants, appropriate relief at this preliminary stage of the proceedings may not properly include action that may well discriminate against white applicants, at least on the basis of the record here.
Although the Supreme Court in Griggs v. Duke Power Co.*fn5, 401 U.S. 424 (1971), stated that in a Title VII case after plaintiffs have shown that a given test or procedure disqualifies a disproportionate number of blacks, defendants must then demonstrate the validity of that test or procedure, we regard Griggs , even assuming its reasoning applies to a non-Title VII case, as establishing primarily the locus of burdens of proof on particular issues. We accept, as not clearly erroneous, the lower court's finding that defendants, at least so far in this proceeding, have not shown that the hiring procedures presently employed by the Police Department are job-related. Such failure to demonstrate test validity cannot be used, however, to suggest that those who have been disqualified under that procedure are in fact qualified. And absent such a showing and a finding that a particular applicant is qualified, the district court erred in fashioning appropriate relief by ordering the Police Department to hire, if it chooses to hire at all, applicants, black or white, who may be unqualified*fn6 In a case such as this, where the public interest is of significant materiality*fn7, any order by the district court must insure that members of the public not bear the risk that unqualified applicants will be hired. Because the present order is not limited to requiring the Police Department to hire from a pool of applicants of demonstrated qualifications, we must vacate that portion of the order dealing with a quota system in hiring.
The district court also ordered the Police Department to adhere to the one-for-two quota system in operating its promotion procedure. It found that the "written examination for promotion * * * plays a significant role in determinations of eligibility and eliminates a disproportionate number of blacks." In reviewing the evidence, however, the lower court revealed that its finding of disproportionate disqualification was based upon the following unrebutted, statistical evidence concerning passing rates on three promotion examinations:
" Test White Pass Black Pass
Sergeant 18.4% 11.7%
Detective 27.2 17.7
Corporal 36.2 23.8"
Immediately following the reproduction of this table upon which the lower court apparently based its finding of disproportionate disqualification, the trial judge stated: "There is no evidence as to the statistical significance of these figures, nor as to the passing rates for the other promotion examinations." Thus, although the trial court made a finding that the test disqualifies a disproportionate number of black policemen seeking promotion, the judge pointed to the absence of evidence concerning the statistical significance of the data on which his finding was based. Perhaps this apparent incongruence between the statistics, the finding of fact, and the statement made by the trial judge was caused by a simple mistake. Speculation about its nature is, however, just that, speculation. Under these circumstances, and in view of the critical nature of the matter, we decline to uphold that part of the district court's order requiring a one-for-two quota system in the Police Department's promotion procedure.
II. For the above reasons, we find it necessary in fulfilling our appellate duties to vacate those portions of the district court's order requiring the Philadelphia Police Department, if it chooses to hire or promote at all, to do so on the basis of affixed mathematical formula guaranteeing proportional representation by race. We emphasize that our disposition in no way suggests that imposing a quota system is unconstitutional as a judicial remedy for discrimination. Although expressing no opinion on this issue at the present time, we do note that America's progress in its attempt to eradicate racial discrimination is due largely to the generally-felt belief that individuals, regardless of their race, creed, religion, sex, or national origin, should be accorded an equal chance to compete for the opportunities society provides - employment, education, and others - on the basis of individual ability. In our democracy, rights are accorded primarily to individuals, as distinguished from groups. Opening the doors long shut to minorities is imperative, but in so doing, we must be careful not to close them in the face of others, lest we abandon the basic principle of nondiscrimination that sparked the effort to pry open those doors in the first place.
Our disposition does not imply that no relief is appropriate at this time. The district court did make a finding that the hiring procedure prima facie violates the equal protection clause and 28 U.S.C. §§ 1981, 1983, and any inconsistencies in the statement of its findings concerning promotion procedures may be inadvertent.
Because of the delay that has so far plagued this litigation, in framing appropriate relief it is proper to establish a deadline of January 1, 1973, by which time the defendants must demonstrate to the district court that the present tests and procedures for hiring and promotion are job-related and valid or must submit new tests and procedures properly validated. In the absence of such demonstration or submission by defendants, the district court should proceed to order whatever relief may be appropriate at that time. In addition, because of the delay, we strongly urge the district court to consider all further proceedings as on final hearing. See Fed. R. Civ. P. 65(a) (2).
Accordingly, for the reasons stated above, those portions of the district court's order imposing quota systems on the hiring and promotion procedures of the Philadelphia Police Department will be vacated, and the cause remanded for further proceedings consistent with this opinion.