Alexander v. Bahou

ADDITIONAL CASES United States of America, Plaintiff, National Association for the Advancement of Colored People, Syracuse/Onondaga Chapter, Intervenor Plaintiff, v. City of Syracuse, a municipal corporation; Lee Alexander, as Mayor of the City of Syracuse; Thomas F. Hanlon, as Chief of Fire of the Syracuse Fire Department; Syracuse Fire Department; Thomas J. Sardino, as Chief of Police of the Syracuse Police Department; Syracuse Police Department; Victor S. Bahou, as Commissioner of and constituting the New York State Civil Service Commission; Josephine L. Gambino, as Commissioner of and Constituting the New York State Civil Service Commission; James T. McFarland, as Commissioner of and Constituting the New York State Civil Service Commission; New York State Municipal Training Council; and Edward J. Gusty, Local Personnel Officer, County of Onondaga, Defendants; 5:80-CV-53 MEMORANDUM DECISION and ORDER I. INTRODUCTION Currently before the Court is a motion purporting to resolve a decades-old pair of lawsuits that were brought to address racial and sex-based discrimination in hiring practices for the police and fire departments of the City of Syracuse (“Syracuse” or “the city”). Both the city and the Department of Justice (“the government”) filed causes of action in 1978 and 1980, respectively, seeking to challenge the civil service hiring requirements imposed by New York State (“New York” or “the state”). Those causes of action both fundamentally argued that the imposed hiring requirements unconstitutionally disfavored African Americans and women in the police and fire departments, although the government also looked to take the city to task for its own culpability in its hiring disparities. Ultimately, the parties reached a settlement in 1980, resulting in a consent decree (the “consent decree”) that had the effect of permitting Syracuse to institute a hiring preference for African American and women candidates notwithstanding the civil service requirements. Some forty years later, the government has moved to modify — and ultimately dissolve — the consent decree under Federal Rule of Civil Procedure (“Rule”) 60(b)(5). That motion will now be decided on the basis of the parties’ submissions and oral arguments held on Friday, November 13, 2020. II. BACKGROUND On August 7, 1978, Lee Alexander, then-mayor of Syracuse, Thomas Sardino, the city’s then-police chief, and Thomas Hanlon, the city’s then-Fire Chief (together “the Syracuse plaintiffs”) filed the present case seeking a declaratory judgment against the New York State Civil Service Commission. Dkt. 1; Dkt. 12 (“Decree Order”), pp. 3-4.¹ Essentially, the Syracuse plaintiffs objected to the practical consequences of New York Civil Service Law’s requirement that all appointments to the police and fire departments must come from the three eligible candidates with the highest scores on the civil service exam. Id. That requirement, colloquially called the “rule of three,” is currently codified in New York Civil Service Law §61 (“§61″). Essentially, the Syracuse plaintiffs believed that §61′s hiring requirements put them on the horns of a dilemma. Decree Order pp. 2-3. On the one hand, the Syracuse plaintiffs could have continued to follow the rule of three, despite mounting evidence that the exam’s results “uniformly resulted in white males occupying the three highest positions on the list of eligible candidates….” Id. at 3. But the Syracuse plaintiffs were concerned that walking this path would open them to federal civil and criminal liability by allowing racial imbalance to run unchecked. Id. Alternatively, the Syracuse plaintiffs could have disregarded the rule of three to more actively foster diversity. Decree Order 2-3. Although this method would avoid federal liability, violating §61 would instead open the doors to state civil and criminal liability. Id. at 3. Rather than let the inevitable encroach on them, the Syracuse plaintiffs cut their own path by asking this Court to allow them to deviate from the hiring lists and increase their minority hires. Decree Order 3-4. After the Syracuse plaintiffs filed suit, the parties entered negotiations to settle the dispute without unnecessary litigation. Id. at 4. Those negotiations dragged on with little profit. Id. On January 16, 1980, apparently fed up with the lack of momentum in this case, the government filed its own suit under Title VII of the Civil Rights Act of 1964 (“Title VII”) against all parties involved in the initial lawsuit, as well as against the New York State Municipal Training Council. Decree Order 4. On March 19, 1980, the parties at last announced a settlement and proposed a consent decree. Id. at 5. The consent decree first consolidated the Syracuse plaintiffs’ and government’s cases. Dkt. 49-3 (“Consent Decree”), p. 3. More importantly, that agreement identified its own objectives and — as a consequence — the objectives of the settling parties. One of the long-term goals of the consent decree was to employ African Americans “in all ranks within the fire and police departments in numbers approximating their representation within the labor force…and their interest in, and ability to qualify for, such positions.” Consent Decree 6. To bring about that goal, the city gave African Americans a hiring preference “on an interim basis to achieve the goal of hiring [African Americans] for 25 percent of all entry-level firefighter and police officer hires.” Id. 7. As for women, the consent decree’s long-term goal remained simple enough: “to utilize females in all ranks within the fire and police departments in numbers approximating their interest in and ability to qualify” for those positions. Consent Decree 8. But the parties presented no interim goals in the consent decree, instead leaving those goals to be negotiated within eighteen months of the decree’s entry.² Id. Nevertheless, the consent decree expressed a goal of hiring females for twenty percent of all entry-level police officer hires. Id. 8(b). To achieve the long-term goals that were actually established, the consent decree provided Syracuse with three tools: (1) the capacity to grant hiring priority to African American and female candidates “in a manner analogous, but not identical, to the priority which has been given to [c]ity residents over non-resident applicants”;³ (2) the obligation on New York’s part to provide civil service examinations which accurately measure job performance; and (3) the ability of any party to request additional relief if the civil service examinations are found to inaccurately measure job performance. Consent Decree 1. The city also agreed to supplement its recruiting program to target and attract “qualified [African American] and female applicants….” Id. 4(d). By the plain terms of the consent decree, any party was permitted to move for its dissolution five years after it was entered. Consent Decree 18. However, the consent decree specifically noted that a motion to dissolve it should consider “whether the parties ha[d] substantially complied” with the decree and whether its “basic objectives” had been met. Id. On March 27, 1980, the Court formally approved the consent decree. Decree Order 17. After the decree was approved, Syracuse began to maintain at least two lists of eligible candidates: a “general list” and a list of African American candidates. Vivenzio v. City of Syracuse, 611 F.3d 98, 101-02 (2d Cir. 2010) (describing the city’s hiring procedures in response to challenge by rejected white male firefighter applicants). It is unclear whether the city maintains a third list for females who took the civil service exam, but its submissions seem to indicate that it does. At any rate, according to Syracuse, its preference regime has resulted in demographic breakdowns for the police department as follows: 10.32 percent of all police officers are African American while 17.40 percent of all officers are female; 1.92 percent of all police sergeants are African American while 5.77 percent are female; no lieutenants are African American although 15 percent are female; no captains are either African American or female; and 20 percent of all police chiefs are African American, although none are female. As for the demographics of the fire department, Syracuse claims the following: 22.8 percent of all firefighters are African American while 4.7 percent are female; 4.6 percent of fire lieutenants are African American while 1.5 percent are female; 10 percent of all fire captains are African American while none are female; and 13.6 percent of all fire chiefs are African American while 4.5 percent are female. By contrast, the most recent data available estimates that African Americans make up 27.9 percent of Syracuse’s labor force, and women make up 52.8 percent. According to the government, in April of 2019, New York’s Civil Service Commission administered a new entry-level firefighter examination. In September of 2019, the commission similarly issued a new entry-level police officer examination. The government contends that these new examinations eliminate the need for the ongoing hiring preferences, and developments in federal and constitutional law have rendered the manner in which the city employs those preferences untenable. The government thus moved under Rule 60(b)(5) to modify the consent decree to strip it of the racial and sex-based preferences now and allow the consent decree to dissolve altogether once the new tests have been properly administered. Dkt. 49. The State of New York joined the government’s motion. Dkt. 60. But Syracuse opposed, arguing that the consent decree should remain in force. Dkt. 61. III. LEGAL STANDARD The Supreme Court has used Rule 60(b) as a lens to consider modifications or dissolutions of institutional reform consent decrees. See Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 383 (1992). As relevant to this case, Rule 60(b)(5) allows a party to move for relief from “a final judgment, order, or proceeding” where “the judgment has been satisfied, released, or discharged[,]…or applying it prospectively is no longer equitable[.]” The party seeking relief bears the burden of demonstrating that the purposes of the underlying litigation have been achieved. Horne v. Flores, 557 U.S. 433, 447 (2009). Deciding a motion to dissolve a consent decree created to foster institutional reform requires “a flexible standard” hinging on either “changed circumstances or substantial attainment of the decree’s objective.”⁴ Patterson v. Newspaper & Mail Deliverers’ Union, 13 F.3d 33, 38 (2d Cir. 1993). This flexibility “entitles a court of equity to focus on the dominant objective of the decree and to terminate the entire decree once that objective has been reached.” Id. at 39. As for the changing legal circumstances inquiry, “[i]t is possible that a decree that appeared to meet the relevant constitutional standards as understood in 1980 may fail to satisfy…precedent that has developed since entry of such a decree but that could well apply retroactively.” Vivenzio v. City of Syracuse, 611 F.3d 98, 109-10 (2010) (Livingston, J., concurring) (citing Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97 (1993)). As such, courts are charged with ensuring that the consent decree does not come to exceed its appropriate limits. Horne, 557 U.S. at 450. A decree exceeds its limits if it is aimed at “eliminating a condition that does not violate federal law” or if it “does not flow from such a violation.” Id. (cleaned up) (citing Milliken v. Bradley, 433 U.S. 267, 282 (1977)). Courts have also been cautioned that if a consent decree is “not limited to reasonable and necessary implementations of federal law, it may improperly deprive future officials of their designated legislative and executive powers.” Horne, 557 U.S. at 450 (internal citations and quotation marks omitted). In sum, a consent decree may be modified or dissolved if a significant change in factual conditions or in law renders its continued enforcement “detrimental to the public interest.” Id. at 447. IV. DISCUSSION To prevail on its motion, the government must prove one of three events has occurred: (1) the parties have substantially fulfilled the consent decree’s purpose; (2) a change in factual circumstances; or (3) a change in the governing law. Patterson, 13 F.3d at 38. The government argues that it has proven both substantial fulfillment and a change in the governing law. Specifically, it argues that: (1) the new civil service examination substantially fulfills the consent decree’s purpose; (2) the 1991 Amendment to Title VII has made Syracuse’s use of separate eligibility lists unlawful; (3) the use of separate eligibility lists for African Americans cannot survive strict scrutiny as required by subsequent caselaw; and (4) the use of separate eligibility lists for women cannot survive intermediate scrutiny. However, even if the government proves that a change in the governing law or factual circumstances merits their requested relief, they must also demonstrate that the modifications they request to the consent decree are suitably tailored to the change they have proven. Rufo, 502 U.S. at 391. A. Timeliness. “A motion under Rule 60(b) must be made within a reasonable time[.]” Fed. R. Civ. P. 60(c)(1). In considering the timeliness of a Rule 60(b) motion, courts in the Second Circuit “ scrutinize the particular circumstances of the case[ ] and balance the interest in finality with the reasons for delay.” PRC Harris, Inc. v. Boeing Co., 700 F.2d 894, 897 (2d Cir. 1983) (applying reasonable time standard for Rule 60(b)(6) motion). “In a typical case, five years from the judgment to a Rule 60(b) motion would be considered too long by many courts.” Grace v. Bank Leumi Tr. Co., 443 F.3d 180, 191 (2d Cir. 2006). Syracuse does not challenge the timeliness of the government’s motion to the extent that the government argues that the substantial objectives of the consent decree have been met. Rather, the city argues that the government waited too long to make its arguments relying on changes in the law. In particular, the city points out that the Title VII amendment upon which the government relies was enacted in 1991. Moreover, City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), the Supreme Court precedent which the government alternatively argues presents a change in legal circumstances, is even older, having been decided in 1989. Syracuse is correct that, in a vacuum, twenty-nine years is not a reasonable time in which to file a Rule 60(b)(5) motion. See Grace, 443 F.3d at 191 (noting that five years is typically too long to merit relief). But the government objects to the city’s framing of the question. Instead, according to the government, the city violates federal law every hiring cycle in which the city uses its hiring preferences and eligibility lists. By the government’s logic, every year the clock should begin anew, and it was not unduly delayed in acting because within the past year the city has once again violated federal law. Syracuse is correct that, in a vacuum, twenty-nine years is not a reasonable time in which to file a Rule 60(b)(5) motion. See Grace, 443 F.3d at 191 (noting that five years is typically too long to merit relief). But the government objects to the city’s framing of the question. Instead, according to the government, the city violates federal law every hiring cycle in which the city uses its hiring preferences and eligibility lists. By the government’s logic, every year the clock should begin anew, and it was not unduly delayed in acting because within the past year the city has once again violated federal law. Although Syracuse is correct that the government’s delay is both extensive and without excuse, nevertheless in the unique circumstances of a consent decree that delay is not enough to command the Court to turn a deaf ear to the government’s arguments. The interest in finality — the foundational interest in Rule 60(b)(5)’s time limitations — is nonexistent in a case like this one. PRC Harris, 700 F.2d at 897. In fact, the consent decree is itself an ongoing remedy that precludes finality as long as it endures. As such, all parties agree that at some point the consent decree should end, and until it does the case will not be final in any sense of the word. Against the miniscule interest in finality at issue, the particular circumstances of this case make a compelling argument for allowing the government’s motion to proceed. Regardless of when the motion could or even should have been brought, the consent decree rests on this Court’s authority. It is thus the Court’s responsibility to ensure that authority is not extended beyond its lawful bounds. Against that paramount concern, the nonexistent finality interest and the government’s less than compelling justifications for its delay count for little. PRC Harris, 700 F.2d at 897. Accordingly, the Court will consider the government’s motion despite its extensive delay. B. Fulfillment of the Consent Decree’s Purpose. Both parties attempt to shape the purpose of the consent decree to suit their own objectives. To hear the government tell it, the consent decree’s purpose is to prevent African Americans and women from being “disadvantaged by reason of race or sex in their employment as police officers or firefighters.” Consent Decree p. 8. The government acknowledges that the consent decree’s purpose includes certain hiring objectives, but downplays them by noting that the consent decree only tasks Syracuse with “making reasonable efforts” to meet those hiring goals. Id. Thus, the government’s argument is that the new civil service exam eliminates disadvantage on the basis of race and sex. Moreover, it alleges Syracuse has made a reasonable effort to meet its hiring objectives by averaging African-American hiring rates of 25 percent and 15 percent in its fire and police departments, respectively, and female hiring rates of 18 percent in its police department since 2005. As Syracuse correctly points out, the government is ignoring language in the consent decree tying its hoped-for employment rates for African Americans and women to the labor force rates for those demographics in the city. Consent Decree