Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 73 C 2080, 70 C 2220, 73 C 1252 and 75 C 79. Prentice H. Marshall, Judge.
Sprecher, Circuit Judge, Wilson Cowen, Senior Judge,*fn* and Wood, Circuit Judge.
This case involves the consolidated appeals of two related aspects of a civil rights action broadly challenging the employment practices of the Chicago Police Department. Most aspects of the case have been settled by prior litigation in the federal courts.*fn1 The issue presented in this appeal involves the rights under Illinois state law of those white males remaining on the patrolman eligibility roster posted in 1972 to be appointed by the Chicago Police Department to enter the Police Academy.
On December 4, 1971, the Civil Service Commission of the City of Chicago administered an examination for the position of patrolman of the City of Chicago. An eligibility list was posted on July 19, 1972,*fn2 and hiring was begun. On August 14, 1973, the United States filed suit attacking this examination on the basis that it discriminated against minorities in violation of Title VII of the Civil Rights Act of 1964. The district court granted plaintiffs' motion for a preliminary injunction on November 7, 1974, enjoining the city from appointing any further personnel to the rank of patrolman for the City of Chicago from the eligibility list based on the 1971 examination until further order of the court. United States v. City of Chicago, 385 F. Supp. 543 (N.D. Ill. 1974).
On December 16, 1974, the district court entered an interim hiring order under which 600 persons (including 300 minority males and 100 females) would be appointed. Upon fulfillment of this order, all minorities from the 1971 list were hired and only white males remained. The district court on February 28, 1975, granted leave to intervene as parties defendant to representatives of those white males who had been placed on the eligibility list in 1972 but had not yet been appointed (Isakson intervenors).
On January 5, 1976, the district court entered its final memorandum decision on the merits and its final decree and supplemental memorandum was entered on February 2, 1976. United States v. City of Chicago, 411 F. Supp. 218 (N.D. Ill. 1976). The district court found that the 1971 patrolman examination had a grossly disproportionate impact on minorities and ordered the city to hire persons with respect to mandatory hiring quotas. So long as these quotas were maintained and the interim hiring order was completed, the district court nevertheless allowed, but did not require, the City to make use of the remaining names on the 1971 list in subsequent hiring. 411 F. Supp. at 249.
On appeal this court vacated that portion of the decree which would allow the City to ignore the 1971 patrolman roster and remanded with the requirement that the district court should preserve as much of the Illinois statutory scheme as possible. United States v. City of Chicago, 549 F.2d 415, 437-38 (7th Cir. 1977). This court declined to decide whether persons on the 1971 roster must be hired prior to any other persons in light of the difficult problems of state law that might arise in such a determination.
In the meantime the City had devised a new examination which it administered on April 19, 1975. In February, 1976, the City produced a group of rosters based on the 1975 examination. The district court received comments and objections regarding the use of the 1975 examination and its results and on September 7, 1976, the court overruled these objections and approved the use of the 1975 eligibility list because it did not have an impermissible discriminatory effect. United States v. City of Chicago, 420 F. Supp. 733 (N.D. Ill. 1976). Since the test was new and a determination of its overall validity could not be made, the district court felt that this question need not be reviewed in light of the test's failure to produce discriminatory results. Finally, the district court once again refused to require the City to utilize the remainder of the 1971 eligibility list before appointing persons from the new roster. The Isakson intervenors appeal from that determination.
The district court, on remand from the decision of this court on the merits, once again ruled adversely to intervenors and denied intervenors' motion to amend the decree to require "that those persons remaining on the 1971 eligibility list be hired for the position of patrol officers before white males from the 1975 eligibility examination." United States v. City of Chicago, 437 F. Supp. 256 (N.D. Ill. 1977). The court held first that the 1975 examination and resulting eligibility roster was valid under both federal and Illinois state law. Second, the court concluded that the intervenors had no claim to appointment since the 1971 list had been posted for two years and, under Illinois state law, entrance level rosters may be removed after two years even though vacancies may exist unfilled. The court viewed the use of the 1975 roster by the City as a de facto striking of the 1971 roster and refused to enjoin the city from doing so. The city subsequently struck the list (Intervenors Brief p. 19 and Intervenors Reply Brief p. 2). Intervenors appeal from the 1977 decision of the district court and this appeal was consolidated with their earlier appeal from the September 7, 1976, ruling of the district court. Our jurisdiction derives from 28 U.S.C. § 1291.
We address first the issue of intervenors' right to be hired under Illinois state law irrespective of the validity of the 1975 examination and its results. It is clear that intervenors took the 1971 examination in good faith, passed it, and their names were placed on an eligibility list on July 19, 1972, in accordance with Illinois law. ILL. REV. STAT. ch. 24, §§ 10-1-7, 10-1-12. The City of Chicago hired some persons from this list. On November 7, 1974, the City was enjoined from making further appointments from the list by the district court although some persons on the list were subsequently hired pursuant to the Interim Hiring Order of the district court. On February 2, 1976, the district court gave permission to the City once again to utilize the 1971 list for hiring purposes. Finally, after the district court refused on June 17, 1977, to enjoin the City from striking the 1971 roster, the City issued an order taking the list down and no further appointments were made therefrom.
Intervenors claim that they have been denied vested rights under Illinois law. Their right to be considered for entrance level positions exists as long as the eligibility list upon which intervenors' names appear remains posted.*fn3 The civil service commission, however, is not required to maintain an eligibility list until all those listed on it have been appointed. ILL. REV. STAT. ch. 24, § 10-1-14 provides, in part, that "the commission may strike off names of candidates from the register after they have remained thereon ...