Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 73-C-2-80 -- Prentice H. Marshall, Judge .
Before Cummings, Chief Judge, and Pell, Sprecher, Bauer, Wood and Cudahy, Circuit Judges.
Author: Cudahy; Fairchild
This consolidated appeal represents the latest phase in the protracted litigation involving the hiring and promotion practices of the Chicago Police Department. In 1976, those practices were found by the district court to have discriminated against blacks, Hispanics and women in violation of Title VII of the Civil Rights Act of 1964, and mandatory quotas for the hiring and promotion of police officers were imposed to remedy the effects of this discrimination. In a previous decision, since vacated, a panel of this court affirmed the district court's denial of a joint motion by the United States and the City of Chicago (the "City") to modify the existing injunctive decree so as to reduce the black and Spanish-surnamed ("minority") promotional quota from 40% to 25% and to establish a 10% promotional quota for women. In addition, the panel affirmed another district court order, which had granted the City permission to make promotions, subject to the mandatory quota, from an eligibility roster the nondiscriminatory character of which had not been definitively tested in an evidentiary hearing. United States v. City of Chicago, 648 F.2d 1110 (7th Cir. 1981). As noted, this decision was vacated pursuant to a majority vote of the circuit judges in regular active service, and this rehearing en banc followed.
We conclude that changed circumstances require modification of the 1976 decree as proposed in the joint motion, and hence vacate the order of the district court and remand with instructions to employ a 25% minority quota in future promotions sought by the United States and the City. We also instruct the district court to proceed expeditiously with an evidentiary hearing to consider the validity under Title VII of the procedures used in compiling the current sergeant eligibility roster. We further authorize the district court, at its discretion, to hold promptly an evidentiary hearing to determine whether any further modifications of the minority promotional quotas are indicated on the basis of current conditions. This inquiry may also address the important matter of a promotional quota for women.
Because this appeal involves the effect of changed circumstances since the entry of the original decree by the district court in 1976, it is necessary to set forth at least in outline the history of this litigation. On February 2, 1976, the district court entered its final decree finding the Chicago Police Department guilty of race and sex discrimination in violation of Title VII. United States v. City of Chicago, 411 F. Supp. 218 (N.D.Ill.1976).*fn1 As part of its final decree, the court imposed mandatory hiring and promotional quotas to remedy the effects of past discrimination. The decree established as a "long term goal" the appointment to the police force of sufficient numbers of qualified blacks, Spanish-surnamed persons and females to increase substantially the minority composition of the Police Department so that it would more nearly reflect the racial and ethnic composition of the City's work force as a whole.*fn2 To ensure the prompt achievement of this goal, the court ordered that 42% of all future patrol officer vacancies be filled by qualified black and Spanish-surnamed males, and 16% of the vacancies be filled by qualified females, until further order of the court. 411 F. Supp. at 249.
With respect to promotion from patrol officer to sergeant, which is the subject of this appeal, the district court's final decree provided:
The Chicago defendants shall adopt and seek to achieve a goal of promoting blacks, Spanish-surnamed persons and females to the rank of sergeant so as to have and maintain a sergeant mix reasonably representative of the patrol force, the minority and female percentages of which will begin to increase under the provisions of this decree relating to the appointment of patrol officers.
411 F. Supp. at 250 (emphasis supplied). To ensure the attainment of this latter goal, the decree provided that, until further order of the court, 40% of all promotions to sergeant were to consist of black and Spanish-surnamed persons, subject to the availability of qualified applicants.*fn3 In meeting this goal or quota, the City was authorized to use the eligibility list based on the results of the 1973 sergeant examination, until new selection methods were developed or until minority names on the list were exhausted.
On appeal, this court upheld both the finding of unlawful discrimination and the imposition of mandatory quotas. United States v. City of Chicago, 549 F.2d 415 (7th Cir.), cert. denied, 434 U.S. 875, 98 S. Ct. 225, 54 L. Ed. 2d 155 (1977). In reversing a portion of the district court decree which had allowed the City to disregard existing eligibility rosters as long as the mandatory quotas were met, we held that hiring and promotions were to be made, insofar as possible, from eligibility rosters compiled pursuant to state law.*fn4 We therefore required that all promotions to sergeant, after filling the 40% minority quota, were to be made in rank order from such an eligibility roster.*fn5
On August 18, 1976, the City submitted for the approval of the district court a new roster of qualified candidates for appointment to the patrol officer force. This roster was established on the basis of new selection procedures, including a revised patrolman examination given in 1975. The district court found that the results of the new procedures displayed a pattern with respect to race and sex that was not significantly different from that of the pool of applicants. Hence, the court concluded that the use of the new roster did not constitute a prima facie violation of Title VII. United States v. City of Chicago, 420 F. Supp. 733 (N.D.Ill.1976), aff'd, 567 F.2d 730 (7th Cir. 1977), cert. denied, 436 U.S. 932, 98 S. Ct. 2832, 56 L. Ed. 2d 777 (1978). A nondiscriminatory hiring procedure thus having been conceived and put into practice, the district court suspended the hiring quotas for minority and female patrol officers contained in the 1976 final decree. Thus, since 1976, the hiring of patrol officers has proceeded without the aid of mandatory quotas.
In December 1979, the City, having administered a new examination to patrol officers for promotion to sergeant, posted the list of successful applicants resulting from the new exam.*fn6 The City expected to make fewer than 400 promotions from this list. Although 26% of the applicants were black or Spanish-surnamed, only 7% of the top 400 in rank belonged in these minorities.*fn7 These results showed a greater disparity between the proportions of white and minority candidates and white and minority entries found qualified for the rank of sergeant than did the 1973 sergeant examination, which had been declared invalid.*fn8 Meanwhile, as a result of the operation of the 40% quota imposed in 1976, by early 1980, the racial composition of the sergeant force approached substantial parity with that of the patrol officer force.*fn9
On June 24, 1980, the United States and the City filed a joint motion for entry of a "consent decree" seeking to reduce the minority quota for promotion of sergeants from 40% to 25%.*fn10 The motion also sought to establish a 10% promotional quota for women.*fn11 The district court denied the motion on July 22, 1980, and the City appeals.*fn12
Immediately following the denial of the joint motion, the City moved for permission to promote sergeants from the 1979 sergeant eligibility roster, subject to the 40% minority quota in the 1976 decree. The Suess intervenors, who represent white male patrol officers ranked in the first 400 of the 1979 roster, moved to stay, or in the alternative to enjoin, the promotions other than in rank order until the validity of the 1979 selection procedures (based on the examination administered at that time) was adjudicated. On July 25, 1980, the district court granted the City's motion to promote and denied the intervenors' motion to stay or enjoin the promotions. The Suess intervenors and the Fraternal Order of Police (FOP) appeal from these rulings.
In denying the joint motion for the entry of a "consent decree," the district judge stated that "no showing has been made to warrant a modification of the (1976) decree."*fn13 The City argues that the court incorrectly applied the allegedly rigorous standard for the modification of a permanent injunction rather than the less stringent standard governing the approval of settlement agreements.*fn14 We cannot accept this contention. The district court correctly treated the joint motion as a motion to modify a permanent injunction.*fn15 The joint motion in the instant case was not a voluntary agreement among the parties settling the dispute prior to an adjudication on the merits. Rather, a decision on the merits had already been rendered and a permanent injunction entered to protect the rights of the victims of the City's unlawful discrimination. The City cannot relieve itself of the burdens of this injunction simply by agreeing with only one party, the United States, to restructure the injunction, especially when the Robinson plaintiffs, representing black patrol officers, oppose the joint motion.
Having established the issue as the modification of a permanent injunction, we believe that United States v. Swift & Co., 286 U.S. 106, 52 S. Ct. 460, 76 L. Ed. 999 (1932), must be the starting point of our discussion.*fn16 In Swift, the Court recognized the inherent power of a court of equity to modify a decree in light of changed circumstances, "to adapt its restraints to the needs of a new day." 286 U.S. at 113, 52 S. Ct. at 462. Swift involved a consent decree, entered in a suit brought by the United States charging a monopolistic combination in violation of the Sherman Act, which enjoined the defendants from entering certain markets. Ten years after entry of the consent degree, the defendants petitioned the court to modify the injunction so as to allow them to enter the restricted markets. The district court granted the motion but the Supreme Court reversed, announcing the applicable standard as follows:
The inquiry for us is whether the changes are so important that dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victims of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned.
286 U.S. at 119, 52 S. Ct. at 464 (emphasis supplied). The Supreme Court, applying this standard, concluded that the dangers to which the injunction was directed, namely, the opportunity and inclination of the defendants to exploit their dominant market position to starve out weaker rivals, continued "with undiminished force today." 286 U.S. at 115, 52 S. Ct. at 462. Far from becoming "attenuated to a shadow," the "ancient peril" remained very much alive. 286 U.S. at 118, 52 S. Ct. at 463. In short, the conditions that originally prompted the court to award injunctive relief had not changed at all.
Although numerous cases have mechanically employed the Swift "grievous wrong" test, thereby suggesting that hardship to the defendant is the sole touchstone for modification of an injunction, see, e.g., De Filippis v. United States, 567 F.2d 341, 342-44 (7th Cir. 1977); SEC v. Advance Growth Capital Corp., 539 F.2d 649, 652 (7th Cir. 1976), the Supreme Court has made it clear that Swift is not amenable to such a narrow interpretation. Thus, in United States v. United Shoe Machinery Corp., 391 U.S. 244, 88 S. Ct. 1496, 20 L. Ed. 2d 562 (1968), the Court held that a district court had "misconceived the thrust" of Swift when it invoked the "grievous wrong" language to deny modification of an injunction entered in an antitrust case. 391 U.S. at 248, 88 S. Ct. at 1499. The "grievous wrong" test, the Supreme Court observed, must be understood in light of the Swift Court's emphasis that the dangers that had led to the initial complaint had not been removed at the time modification was requested. Granted this understanding, the Court summarized the lessons of Swift as follows:
Swift teaches that a decree may be changed upon an appropriate showing, and it holds that it may not be changed in the interests of the defendants if the purposes of the litigation as incorporated in the decree (the elimination of monopoly and restrictive practices) have not been fully achieved.
391 U.S. at 248, 88 S. Ct. at 1499. In United Shoe, it was the government which sought modification of the original injunction, claiming that additional, more drastic relief was necessary to fulfill the "purposes of the litigation." Because the relief provided in the original injunction had resulted in little progress toward the achievement of the decree's stated objective of restoring workable competition, the Court concluded that modification would promote, not subvert, the "purposes of the litigation." Swift thus posed no barrier to modification. 391 U.S. at 248-49, 88 S. Ct. at 1499-1500.
The standard for modification of injunctions that emerges from Swift and United Shoe is thus not based solely on hardship to the enjoined party. The standard also incorporates consideration of whether there remains any need to continue the injunction, that is, whether "the purposes of the litigation as incorporated in the decree" have been achieved.*fn17
Certainly modification of a permanent injunction is extraordinary relief, and requires a showing of exceptional circumstances, Philadelphia Welfare Rights Organization v. Shapp, 602 F.2d 1114, 1119 (3d Cir. 1979), cert. denied, 444 U.S. 1026, 100 S. Ct. 689, 62 L. Ed. 2d 660 (1980); De Filippis v. United States, 567 F.2d 341, 342 (7th Cir. 1977). We believe that such a showing was made in the instant case and that application of the Swift-United Shoe standard fully justifies modification of the 40% promotional quota for minorities. The essential purpose of that quota (parity of minority representation, at a substantial level, between patrol officers and sergeants) has been achieved, and changed conditions have rendered continuance of the quota without modification an inequitable and unnecessary ...