The opinion of the court was delivered by: Cohill, Chief Judge.
One of the constitutional dilemmas facing the federal
judicial system today is the philosophical and legal conflict
between the forces seeking the elimination of discrimination
against females and racial minorities in the work place, and
the impact that laws and legal decisions upholding minority
rights have had against others seeking employment in that same
For over fifteen years the City of Pittsburgh has been hiring
its police officers in accordance with a strict
racial/gender-based formula decreed by the late Honorable
Gerald J. Weber in a preliminary injunction issued December 5,
The United States Supreme Court has recently instructed us,
however, that a once-valid decree must be changed when it is
found that the original purpose of the litigation has been
achieved and it appears unlikely that the party enjoined will
return to its former ways. Board of Education v. Dowell, ___
U.S. ___, 111 S.Ct. 630, 636, 112 L.Ed.2d 715 (1991).
Here we must decide whether or not the preliminary injunction
issued by Judge Weber must be dissolved.
Presently before the Court is the "Intervenors' Motion to
Dissolve Preliminary Injunction." The Intervenors are four
white males who are candidates for employment as officers of
the Pittsburgh Police Department. Their motion challenges Judge
Weber's long-standing order that significantly changed the way
the City of Pittsburgh ("City") hires police officers.
Before this action was instituted in 1975, the City hired
officers by using a procedure that relied almost exclusively
upon a competitive written examination. Candidates were placed
on a hiring list and ranked according to score. The City then
selected those with the highest scores for further processing,
which included such things as a medical examination and a
background check. Those who passed the additional processing
were placed on a list from which final selections were made.
After this action was initiated in 1975, Judge Weber issued
a preliminary injunction under which the City would continue
this same competitive hiring procedure, but which required it
to hire police trainees in groups of four, one from each of
four lists: white males, white females, black males, and black
females. Judge Weber's ruling was never appealed, nor did any
party seek to have a trial of the action on the merits. The
preliminary injunction therefore remains in effect to this day.
After Judge Weber's death, the case was transferred to the
On August 23, 1990, in ruling on a Motion to Dismiss filed by
the Commonwealth, this Court held that the Intervenors have
standing to petition this Court for the dissolution of the
preliminary injunction. A hearing was conducted January 28 and
29, 1991 on the merits of the Intervenors' petition. Testimony
focused primarily on the adequacy of the City's hiring
Intervenors attempted to show that if the Weber injunction
were vacated, the City's competitive hiring process would not
violate the Constitution and would meet the standards of the
federal Equal Employment Opportunity Commission ("EEOC"). They
presented an expert who testified that the hiring procedures of
the City had been validated in accordance with federal
guidelines. Another expert, testifying for the Commonwealth,
rebutted these conclusions. The testimony of other witnesses
related to the attitude of the City and the police department
toward the hiring of women and minorities.
Although several interested groups, including the NAACP,
N.O.W. and the Fraternal Order of Police were parties to the
original litigation, only counsel for the Intervenors, for the
Commonwealth of Pennsylvania, and for the City actively
participated in the hearing on the Intervenors' motion. The
NAACP filed a post-hearing brief.
Most of the testimony at the hearing focused on test
validation, suggesting a Title VII theory. In addition, a
written brief filed in behalf of several of the Intervenors
discussed Title VII cases at length. "Title VII" is lawyers'
short hand for Title VII of the Civil Rights Act of 1964, as
amended by the Equal Employment Opportunity Act of 1972,
42 U.S.C. § 2000e to 2000e-17. We see no grounds for applying
Title VII to the Commonwealth's allegations of discrimination
in hiring, which is the sole issue we address today. The
amended complaint pleads a violation of the Civil Rights Act of
1866, 42 U.S.C. § 1981, the Ku Klux Klan Act of 1871, 42 U.S.C. § 1983,
and the Constitution, but not Title VII. Amended
Complaint at 8.
This case was consolidated with an apparent Title VII case
alleging discrimination in training programs and promotions.
See, Pennsylvania v. Flaherty, 532 F. Supp. 106 (W.D.Pa. 1982).
However, we don't believe that the consolidation of this case
with a later case converts the Commonwealth's original case to
a Title VII action. "[C]onsolidation is permitted as a matter
of convenience and economy in administration, but does not
merge the suits into a single cause, or change the rights of
the parties, or make those who are parties in one suit parties
in another." Johnson v. Manhattan Ry. Co., 289 U.S. 479,
496-97, 53 S.Ct. 721, 727-28, 77 L.Ed. 1331 (1933). "Thus the
courts hold that actions do not lose their separate identity
because of consolidation." 9 Wright & Miller, Federal Practice
and Procedure § 2382. Therefore we will not analyze the
evidence presented according to Title VII statutes or case law.
We will add parenthetically, however, that although we have not
made a Title VII analysis in this Opinion, we believe that if
we did, the result would be no different from that which we
have enunciated here.
As we explain in the following opinion, we conclude that
continuation of the injunction would be justified only if the
original plaintiffs in this case could show intentional
discrimination by the City. Since intentional discrimination
has not been proven, we will grant the Intervenors' petition
and dissolve the injunction.
III. PRELIMINARY INJUNCTION
The Commonwealth of Pennsylvania and others initiated this
action in 1975, charging that the City of Pittsburgh had
violated §§ 1981 and 1983 and the Constitution by
discriminating on the basis of race and gender in the hiring,
appointment, promotion, and working conditions of police
officers. Amended Complaint at 8. Judge Weber conducted a
hearing and made factual findings regarding the City's hiring
procedures. He found the percentage of blacks*fn1 in the
Pittsburgh labor force in the following years to be:
Pennsylvania v. Flaherty, 404 F. Supp. 1022, 1024 (W.D.Pa.
He found the percentage of blacks on the Pittsburgh police
force at about that time to be as follows:
June 6, 1975 5.9% (84 out of a total of 1431)
November 7, 1973 6.4% (99 out of a total of 1549)
He found the number of blacks hired as and December 5, 1975
to be as follows: police officers between February 10, 1969
February 10, 1969 2.3% (1 out of 43)
July 28, 1969 4.2% (2 out of 48)
September 22, 1969 8.7% (4 out of 46)
January 12, 1970 5.4% (2 out of 37)
October 26, 1970 0.0% (0 out of 38)
Id. at 1025.
Apparently, no blacks were hired between 1971 and 1975.
"Thus," said Judge Weber, "of 212 new police officers added
since February 10, 1969, 9, or 4.2% were black. None of these
appointees were female."
Judge Weber found that the number of women, both black and
white, on the police force was 12 (0.8%) out of 1,431, and that
no woman had been appointed since 1966. At that time, women
comprised 40% of the labor force in Pittsburgh. "Of a total of
applicants to take the police examination in 1975 of 3,299,
1,176 or 35.6% were women. Of a total of 1,949 persons passing
the test, 751 or 39% were women." Id.
The Court further ordered:
that defendants shall proceed forthwith to develop
a broad-based system of competitive qualifications
of future applicants which measures a number of
job-related qualifications and is free from the
racial or sexual bias that results from the
administration of a single written examination as
the sole competitive criterion for appointment.
We emphasize that Judge Weber made no finding of intentional
discrimination on the part of the City. Rather, the preliminary
injunction was based upon the disparate impact the City's
hiring procedure had on minorities and women.
Judge Weber labelled the quota process for selecting new
police officers an "interim method," which he said would remain
in effect "until disposition of plaintiffs' prayer for
permanent injunctive relief or until further order of this
No appeal was ever taken, nor did any party seek a final
adjudication on the merits; therefore, the preliminary
injunction remains in effect.
The parties present differing views on the overlapping issues
of the burden of proof among the parties and the standard by
which this Court should review the preliminary injunction
issued by Judge Weber.
The City, relying on Fed.R.Civ.P. 60(b)(5) and United States
v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932)
argued that the burden rests on the intervenors as the party
moving to dissolve the injunction. Fed.R.Civ.P. 60(b)(5)
On motion and upon such terms as are just, the
court may relieve a party or a party's legal
representative from a final judgment, order, or
proceeding for the following reasons: . . . (5)
the judgement has been satisfied, released, or
discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or
it is no longer equitable that the judgment should
have prospective application.
In Swift, several large meat packing companies were accused
of antitrust violations in the purchase of livestock and the
sale of meats. In 1920, a consent decree was entered by which
the meat packers agreed never to enter the grocery business. In
1930, after making various attempts in the lower courts to
frustrate the operation of the decree, the packers filed a
motion to modify it. The Supreme Court held that the decree
could not be vacated or modified except upon a showing of
"grievous wrong evoked by new and unforeseen circumstances."
Id. at 119.
The City and Commonwealth argue that since Judge Weber has
previously made a finding of discrimination after extensive
fact finding, it is now up to the intervenors to show "grievous
wrong evoked by new and unforeseen circumstances" to justify
any modification of the injunction.
Intervenors, on the other hand, argue that Swift has been
clarified by later Supreme Court cases. The Supreme Court
addressed this issue earlier this year in the Dowell school
desegregation opinion stating:
Board of Education v. Dowell, ___ U.S. ___, 111
S.Ct. 630, 636-37, 112 L.Ed.2d 715 (1991).
It appears to this Court that the standard of review
enunciated in Swift is inapplicable to our review of the
preliminary injunction. The portion of the Dowell opinion
quoted above makes it clear that the Swift standard applies
only when the underlying danger justifying the prior decree
continues unabated. It would beg the ultimate question
presented in this case if the Court were to rule as a
preliminary matter that unconstitutional discrimination against
women and blacks continues unabated.
Further distinguishing Swift is the fact that the challenged
decree here is only a preliminary injunction, and one that by
its own terms lasts "until disposition of plaintiffs' prayer
for relief or until further order of this court." 404 F. Supp.
at 1031. The purpose of a preliminary injunction is to prevent
irreparable harm until a trial can be held on the merits. It
would be inequitable in this case to hold that the granting of
the preliminary injuunction shifts to the Intervenors the
ultimate burden of proof on the merits. As for Rule 60(b), this
is a rule that, by its own terms, applies only to final orders.
This rule does not apply to an order granting or denying ...