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Critics of affirmative action programs will generally not be given a day in federal court unless they have personally suffered an injury. A Sept. 5 decision by the 1st U.S. Circuit Court of Appeals highlights a disagreement over what sort of injury a putative victim of reverse discrimination must prove. The case, Donahue v. City of Boston, No. 02-1027, pits the 1st and 6th Circuits against the 11th. Would-be police officer Bradley J. Donahue, a white male, passed a statewide civil service exam four times between 1997 and 2001. That was enough to put him on a list of candidates awaiting openings at the Boston Police Academy. Candidates were assigned their place in line on the basis of their scores, with one important exception: Under a 1973 consent decree, minority and nonminority candidates alternated on the list. Thus, a minority candidate with a given score appeared higher on the list than a nonminority candidate with the same score. After being denied appointment to the academy four times, Donahue brought suit against the city and state, claiming that the procedure mandated by the consent decree violated his constitutional right to equal protection. Donahue asked both for monetary damages as compensation for past injury and for prospective relief in the form of an injunction barring use of the alternating ranking. Donahue met most of the requirements to get the court’s ear on his request for an injunction, because he could prove that the academy did not put him on an equal footing with nonminority candidates. For instance, at least one minority candidate with a score lower than Donahue’s won a place that was denied to him. (Nonetheless, Donahue will not be recognized as having standing if state law says he is now too old to be admitted to the academy and thus too old to benefit from an injunction; the 1st Circuit asked the lower court to resolve that issue.) In the view of the 11th Circuit, as expressed in a 2001 case, Wooden v. Bd. of Regents of the Univ. Sys. of Ga., 247 F.3d 1262, the fact that Donahue was not on an equal footing would also give him standing to ask for damages, because “the injury in these kinds of cases is not the denial of the sought-after benefit, but rather the direct exposure to unequal treatment.” Both the 6th Circuit, in its decision, Aiken v. Hackett, 281 F.3d 516, and now the 1st Circuit, hold plaintiffs to a higher standard: They must prove that they would obtain the benefit sought if treated equally. That was not a test that Donahue could meet, because even if the academy’s list were ranked purely according to scores, Donahue would come in too low to secure a place. The court was careful to note, however, that its ruling applied only to equal protection claims, since Donahue might have fared better had he raised a Title VII challenge to the academy’s procedure. CLASS ACTION COMMONALITY In a Sept. 5 decision, In re Linerboard Antitrust Litigation, No. 01-4535, the 3rd Circuit gave class action status to purchasers of linerboard (a component of corrugated cardboard) who claimed that several producers had conspired to drive up prices. The purchasers missed the statute of limitations for antitrust actions. But they argued that an extension was merited because the producers conspired to keep them in the dark. In the view of the producers, that argument made certification of a class inappropriate, because determining the timeliness of each claim required an individualized inquiry into what each purchaser knew and when it knew it. They pointed to a 1998 4th Circuit ruling, Broussard v. Meineke Discount Muffler Shops Inc., 155 F.3d 331, that held that certification was wrong when a defendant’s affirmative defenses, such as the statute of limitations, vary from plaintiff to plaintiff. But the 3rd Circuit instead ruled that such variations may counsel against certification but do not forbid it, particularly when, as in this case, the focus will be on the producers’ alleged conspiratorial acts. The cases discussed in this column are selected with the assistance of Washington, D.C., practitioner Thomas Goldstein.

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