No. 95-4229

Wade Backlund, on Behalf of * Himself and All Other Persons * Similarly Situated, * * Appellant, * * Appeal from the United States v. * District Court for the * District of Minnesota. Neal J. Hessen, Mary Peterson, * and Janet Nelson, in Their * Official Capacity as Commissioners* of the Civil Service Board of * the City of Duluth, Minnesota; * Karl Nollenberger, in His * Official Capacity as Secretary * and Responsible Authority of the * Civil Service Board of the City * of Duluth, Minnesota; Duane * Flynn, in His Individual Capacity * and in His Official Capacity as * Chief of the Fire Department of * the City of Duluth, Minnesota; * Civil Service Board of the City * of Duluth, Minnesota, a Political * Subdivision of the City of Duluth * and State of Minnesota; and City * of Duluth, Minnesota, a Municipal * Corporation and Political * Subdivision of the State of * Minnesota, * * Appellees. *

Submitted: October 23, 1996 Filed: January 14, 1997

Before RIC HARD S. ARNOLD, Chief Judge, and FLOYD R. GIBSON and MORRI S SHEPPARD ARNOLD, Circuit Judges.

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MORRIS SHEPPARD ARNOLD, Circuit Judge.
Wade Backlund appeals the district c ourt's dismissal of his claim of employment discrimination. We reverse and remand.

I. Mr. Backlund applied for a job as a firefighter with the City o f Duluth Fire Department ("Fire Department"). He earned the highest score on a written examination and was placed first on a ranked list of eligible candid ates. This list determined which candidates could interview fo r openings, and Mr. Backlund's ranking guaranteed him an interview for any openings that occurred during the two years that followed his being placed
on the list. Firefighter positions became available twice during thi s time, and Mr. Backlund, along with several other candidates, interviewed for the openings on each occasion. Mr. Backlund was never offere d employmen t. After the second round of hiring, he learned that the Fir e Departm ent had hired four firefighters, three of whom were related t o either present or former Fire Department employees. One was a son of an assistant fire chief, the second was a brother o f a captain, and the third was both a son of a former fire chief and a brot her of a training officer.

Mr. Backlund then sued, claiming that the Fire Department's hirin g practices violated various rights guaranteed to him by federal and state law. In particular, Mr. Backlund alleged that the Fire Departmen t discri minated against him in violation of the Equal Protection Claus e because he is not related to any present or past Fire Department employees

. The defendants moved for dismissal or summary judgment; because it reviewe d materials outside the pleadings to resolve some of Mr. Backlund's claims, the d istrict court treated that motion as one for summary judgment an d granted summary judgm ent to the defendants. Since the district court did not, however, appear to review any such materials to resolve

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Mr. Backlund's equal protection claim, which is the only claim before us, we treat its resoluti on as a dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Because we believe th at Mr. Backlund has stated
a claim under Kotch v. Board of River Port Pilot Comm'rs , 330 U.S. 55 2 (1947), we reverse.

In Kotch , aspiring river pilots challenged a Louisiana statute that governed the appointment of river pilots. The s tatute required new pilots to serve first as apprentices, and it gave control over the selection of apprentices to river pilots themselves. These pilots selected primarily relati ves and friends as apprentices, thus discriminating agains t applicants without family connections in the riv er piloting business. Id. at 555. In upholding the statute, the Supreme Court examined th e relati onship between this method of selecting pilots and the broa d objectives of Louisiana's pilotage law. Id. at 557. It emphasized that river pilotage was "a unique institution and mus t be judged as such." Id. Speaking of so-called "pilot towns," communities populated by relatives an d friends of pilots, the Court observed that in "t hese communities young men have an opportunity t o acquire special knowledge of the weather and water hazards of the locality and seem to grow up with ambitions to become pilot s in the tradition of their fathers, relatives, an d neighbors." Id. at 559. The Court also alluded to "the benefits to morale and esprit de corps whic h family and neighborly tradition might contribute," id. at 563, a s supporting a policy favoring relatives and friends as pilots.

In concluding that the practice challenged in Kotch wa s constitutional, the Court conceded the existence of "hypothetical question s concerning [some] similar system of selection which might conceivably be practiced in other professions or businesses regulated or operated by stat e governments." Id. at 564. It reiterated the narrowness of its decision by o bserving, in the last line of its opinion, that "considering th e entirely unique

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institution of pilotage in the light of its history in Louisiana," id. , th e plaint iffs had not made out a case for the violation of thei r constitutional right to the equal protection of the laws.

As we understand the district court's order in this case, i t dismis sed Mr. Backlund's discrimination claim because it read Kotch a s holding that showing favoritism to relatives in hiring could never violate the Equ al Protection Clause. This reading, in our view, considerabl y overstates the reach of Kotch . The Court in Kotch grounded its narro w holding on the unique character of river piloting. It did not hold that nep otismcould never offend the Equal Protection Clause, it merely hel d that it did not do so in the circumstances that Kotch presented. The clas s of persons presumptively eligible for employment in Kotch , moreover, was
a good deal broader than the class alleged to have been eligible here , because it included not merely relatives of the pilots but their friends

as well. Because Kotch requires nepotism in hiring to have a rationa l basis, the district court erred when it dismissed Mr. Backlund's clai m without conducting a rational basis review.

We be lieve that Kotch proceeds from the assumption that a genera l associational preference for relatives, and a desire to help them, while quite understandable and thus rational in some sense, is not a reason for hiring someone that can withstand an equal protection objection. If i t
were sufficient, or even of legal relevance, we are confident that th e Court would have said so.

Rationali ty for equal protection purposes therefore evidently has a somewhat specialized meaning when governmental e mployment is at issue. It means more than that the employer must have a reason for its action. (It is, in fact, hard to think of an action that does not have a reason.) A government agent who refuses, for

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instance, to hire lef t-handed applicants might offer as a reason the fact that he or she finds them sinister. However sincere as a subjective matte r the agent's preference for right-handed company might be, we are confident that the Supreme Court would find his reason obj ectively unreasonable, and actions based on it u nconstitutional, even if the agent's job performance were affected by the presence of left-handed wor kers. Whatever may be the outer boundaries of the idea of rationality in t his context, we think that Kotch makes it abundantly clear that nepotism in governmental hirin g requires some measure of justification before it can pass constitutional muster. Such justification must connect the challenged hiring criterion to the capacity of th e applicant to perform the duties of the job applied for. That showing is absent from this record. Indeed, the record contain s nothing about the culture of firefighting and of firefighters, or th e unique requirements, if any, of the job.

II. Because we believe that Mr. Backlund has stated a claim under Kotch , the district court erred when it dismissed his claim. We therefore revers e and remand for further proceedings consistent with this opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.