Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, Nos. 70 C 2220, 73 C 1252, 73 C 2080 and 75 C 79 Prentice H. Marshall, Judge.
Fairchild, Chief Judge, Pell, Circuit Judge, and East, Senior District Judge.*fn*
This is an appeal from an order denying dissolution of a portion of a preliminary injunction. Since that portion of the preliminary injunction (prohibiting payment to the City of revenue sharing funds) has now been continued in effect by a final decree on the merits, appellees have moved for dismissal of the appeal now before us.
The complex and extended case involved in this appeal has evolved from a number of decisions both in the district courts and from our own court. We have already considered on four different occasions procedural*fn1 and substantive*fn2 issues involved in this litigation. We have now been asked by the appellant, City of Chicago, to review the order of the district court entered November 13, 1975*fn3 refusing to dissolve a preliminary injunction prohibiting the payment of revenue sharing funds to the City. This appeal was orally argued before the court January 6, 1976. On January 5, the district court issued a Memorandum Decision*fn4 calling for entry of a decree which, among other things, would continue in effect the injunction against payment of revenue sharing funds which the appellants sought to dissolve. Such decree was entered February 2, 1976. Plaintiffs sought dismissal of this appeal as moot. In order to put the matter in perspective, it is necessary briefly to review the procedural history of this case.
This case has resulted from the consolidation of several employment discrimination suits and a suit to enjoin the payment of funds to the City of Chicago under the State and Local Assistance Act of 1972, 31 U.S.C. § 1242(a). The suits complaining of racial discrimination in the Chicago Police Department disciplinary and assignment practices were filed initially by the Robinson plaintiffs on September 9, 1970. The Camacho plaintiffs filed suit on May 13, 1973 against the Superintendent of Police, the City, and other defendants alleging discrimination against Hispanics and blacks in Police Department hiring practices. Shortly thereafter, the United States of America filed a separate complaint against the same defendants, alleging a pattern and practice of racial and sex discrimination by the defendants with respect to employment, promotion, assignment and discipline in the Police Department. Still later, the Burauer plaintiffs were granted leave to intervene, alleging sex discrimination. The plaintiffs sought injunctive relief under the civil rights and equal employment opportunity statutes, 42 U.S.C. §§ 1981, 1983, 1985, 2000d et seq., 2000e et seq.
On April 24, 1974 the motion by the various plaintiffs to consolidate these actions was granted by Judge Marshall.*fn5 The hearing on plaintiffs' application for preliminary injunction was concluded on July 11, 1974. The court filed an opinion and issued a preliminary injunction on November 7, 1974.*fn6 The injunction prohibited the defendants "from engaging in any act or practice which has the purpose or effect of discriminating against any employee of, or any applicant or potential applicant for employment with the Chicago Police Department because of such individual's race, sex, color, or national origin, . . . ." The defendants were specifically enjoined from (1) "failing, or refusing to recruit, hire, assign and promote" black and Spanishsurnamed persons and women on an unequal basis with white men; (2) "failing or refusing to eliminate qualifications" which were not job-related; and (3) using the 1971 Patrolman's Examination and the 1973 Sergeant's Examination as the source of the respective eligibility lists for appointments to the rank of Patrolman and promotion to the rank of Sergeant. The court made findings that the City's practices had a racially disproportionate impact on hiring and promotion in the Police Department. The judge also found that a prima facie case of discrimination was established, thereby shifting the burden of persuasion to the defendants.
Shortly before the actions had been consolidated in the Northern District of Illinois, the Robinson plaintiffs commenced an action in the District Court for the District of Columbia against the Secretary of the Treasury and officials of the Office of Revenue Sharing (ORS). The plaintiffs argued that Section 122(a) of the State and Local Assistance Act of 1972, 31 U.S.C. § 1242(a), prohibits the defendants from providing funds for any program or activity which excludes from participation any person "on the ground[s] of race, color, national origin, or sex." The plaintiffs alleged that the Police Department had been engaged in the kind of discriminatory and exclusionary practices that would require the Secretary and the ORS defendants to withhold revenue sharing funds from the City of Chicago as provided by sections 1242(a), (b) and (c) of the Act. The plaintiffs' motions for summary judgment and preliminary injunction were at first denied by Judge Smith. The court decided that before the private plaintiffs could receive injunctive relief the Attorney General must be allowed time to seek compliance with section 1242 by means of a civil suit.*fn7 Such an action had been commenced by the United States through an amendment to its complaint filed in the discrimination suit, then pending in the Northern District of Illinois before Judge Marshall.
On November 26, 1974, after the preliminary injunction had been granted by Judge Marshall, the Robinson plaintiffs renewed their motions before Judge Smith in the District of Columbia. Based on the findings made by Judge Marshall on November 7, 1974, Judge Smith granted the motions. He enjoined the Secretary and the ORS officials from making further revenue sharing payments to the City of Chicago until the defendants had determined that the City was in compliance with the November 7, 1974 order of Judge Marshall and the nondiscrimination requirements of the State and Local Assistance Act of 1972.
After intervening in the action in the District of Columbia and unsuccessfully seeking modifications of Judge Smith's order, the City did not appeal, but moved to transfer the revenue sharing case to the Northern District of Illinois. The motion was granted and the case was consolidated with the discrimination action before Judge Marshall. The consolidated cases proceeded to trial on the merits on March 10, 1975. Before the completion of the trial, the City again moved to modify Judge Smith's order. Judge Marshall denied modification, finding that the discriminatory practices had not been terminated and "indeed, to the extent that conditions have changed, they support continuation of the order."*fn8 The City did not appeal from that denial of modification of the order prohibiting payment of revenue sharing funds.
On October 10, 1975, more than three months after the completion of the trial on the merits, the City filed yet another motion to modify the revenue sharing order. The City argued that it was in compliance with Judge Marshall's injunction, and that it had begun to fulfill the terms of the interim hiring agreement.*fn9 Specifically the City revealed that it had appointed one hundred and seventy-five persons to the position of temporary sergeant, and two hundred persons had been placed in the Police Academy. Judge Marshall, however, ruled on November 13, 1975 that "circumstances had not changed materially" since the earlier denial of the City's motion to modify the injunction. Consequently, the judge, promising a diligent effort to finish the task of preparing final written findings and conclusions, denied the City's last motion.*fn10 The City appealed.
28 U.S.C. § 1292(a)(1) provides that the Courts of Appeals "shall have jurisdiction of appeals from . . . [interlocutory] orders of the district courts . . . granting, continuing, modifying, refusing or dissolving injunctions . . . ." An appeal from denial of a purely repetitive motion to dissolve an injunction has at times been treated as an attempt to appeal from the order granting the injunction and dismissed if untimely. Stiller v. Squeez-A-Purse Corp., 251 F.2d 561, 563 (6th Cir. 1958). We are satisfied that the City's ...