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. e du/thir dc ir c uit_1998/58Filed March 25, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-3360

JUNE M. WOLFE; JOSEPH J. CAMPISI; PAUL R. RENK; STEVEN R. GARDNER; GEORGE T. TROSKY; MICHAEL F. BROWN; GEORGETTE A. SCAFEDE;

ANTHONY R. DUMRAUF

v.

CITY OF PITTSBURGH

George Trosky, Michael Brown and Paul Renk, Appellants

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 95-cv-00664)

Submitted Pursuant to Third Circuit LAR 34.1(a) March 16, 1998

Before: SLOVITER, RENDELL and SEITZ, Circuit Judges

(Filed: March 25, 1998)

Thomas H. Ayoob, III Pittsburgh, PA 15222

Michael L. Rosenfield Pittsburgh, PA 15219

Counsel for AppellantsDiego Correa

Jacqueline R. Morrow City of Pittsburgh Department of Law Pittsburgh, PA 15219

Counsel for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Appellants George Trosky, Michael Brown, and Paul Renk, white male police officers, filed this action under 42 U.S.C. S 1983, 42 U.S.C. S 1981, Title VII, and Pen nsylvania state law alleging that the City of Pittsburgh disc riminated against them on the basis of their race when it fai led to promote them to the rank of lieutenant. Appellant o fficers argue that the 1979 federal court order setting a q uota for minority hiring had expired before the promotions w ere made, therefore exposing the City to liability. The officers filed a motion for summary judgment but instead the district court granted summary judgment on behalf o f the City. We have jurisdiction under 28 U.S.C. S 1291. Our review is plenary.

I.

This case arises from a history of discriminatory p ractices in the hiring and promotion of minority officers in the City of Pittsburgh police department which spawned exten sive litigation dating back to 1975, and which generated at least six published decisions regarding the appropriate r emedies and other related issues. In 1975, Chief Judge Webe r,1 the district judge originally presiding over the case, found that the City's hiring procedures involved a pattern and practice of racial and sexual discrimination; as a remedy, t he court

___________________________________________________ ______________

1. Although we do not ordinarily trace the history of a case in terms of the district judge by name, in this case three dist rict judges have presided over different phases of the litigation an d the identity of the judge who signed each order is relevant.

2imposed a "temporary interim preferential hiring qu ota"

whereby appointments would be made from qualified l ists in groups of four as follows: one white male, one w hite female, one black male, and one black female. Commonwealth v. Flaherty, 404 F. Supp. 1022, 1030-3 1 (W.D. Pa. 1975). Although that order, by its terms, appears to have applied only to hiring, the City thereafter filed a request with the court to authorize it to promote 1 8 lieutenants and 24 sergeants "straight down" the el igibility list without regard to race or gender. The Commonwe alth of Pennsylvania, the NAACP and the Guardians of Greate r Pittsburgh (on behalf of black policemen) opposed t he City's proposal because it would perpetuate the racial imb alance.

Judge Weber denied the City's request to promote "straight down" but, citing the pressing need of th e City to fill vacancies, ruled on October 12, 1979, that:

We will allow the defendants, however, to pr omote up
to 18 individuals to the rank of lieutenant and up to 28 to the rank of sergeant with the mandate tha t one of each six promoted to either rank must be min ority members otherwise qualified.

We do not command how this shall be done. Th e officers of the City of Pittsburgh have as g reat a duty
to follow the mandates of the Constitution a s does this court. During all the progress of this lawsu it we have found very little evidence of an active effo rt by the City to solve the problems of race and sex discri mination by action on its own rather than relying entire ly on the mandate of this court at every step. There i s a pool of eligible candidates for both grades containi ng minority

members who have at least demonstrated some capacity by scoring a passing grade on the examinations, and by prior satisfactory serv ice as patrolman and in some cases as sergeants. Be cause the pool of eligible candidates for lieutena nt contain minority members, some of whom have experien ce as sergeants, and because the eligibility list for sergeants contain qualified minority members, such sel ection can be made within the statutory scheme.

Commonwealth v. Flaherty, 477 F. Supp. 1263, 1266-6 7 (W.D. Pa. 1979) (emphasis added). With respect to t he

3duration of his "mandate that one of each six promo ted to

either rank must be minority members otherwise qual ified," Judge Weber stated only:

Because the present promotional list is of l imited duration, and will expire within the coming year, the problem may be ameliorated in future years b ecause of the eligibility of minority members and wome n newly hired as police officers under our prior ord er. The effects of the prior discriminatory practice s will be
lessened in the future.

Id. at 1267.

Almost immediately the question arose whether a Hispanic officer was a "minority" under the October 12, 1979 order, and on December 19, 1979, Judge Weber issued a temporary restraining order preventing the City from promoting a Hispanic officer under the aegis o f the October 12, 1979 order, clarifying that the term"mi nority"
as used in the October order referred to black offi cers, not Hispanic officers. App. at 10-11. On January 9, 198 0, Judge Weber made the temporary restraining order is sued December 19, 1979 permanent, stating that "[t]he Ci ty of Pittsburgh is ordered and directed to proceed under the order of this court of October 12, 1979, and in mak ing such promotions as were allowed therein it shall pr omote one black police officer of the plaintiff class of each six officers so promoted." App. at 12. See also Commonw ealth v. Flaherty, 482 F. Supp. 305, 307 (W.D. Pa. 1980).

Sometime thereafter, the City filed a motion for "Modification of Court Opinion and Order." It sough t to make three promotions to lieutenant and six promoti ons to sergeant and asked, in essence, if promoting one mi nority to each position was "in accordance with the progra m of racial balance pursuant to this Court's order." App . at 13- 14. On October 6, 1980, Judge Weber permitted the proposed promotions "in accordance with the mandate s of the Court Order of October 12, 1979." App. at 15.

In addition to the racial discrimination that was t he subject of the orders in question, the City was the subject of allegations of gender discrimination in hiring. Judge Weber conducted a nonjury trial on this claim and a warded

4judgment and back pay to plaintiffs. See Commonweal th v.

Flaherty, 532 F. Supp. 106 (W.D. Pa. 1982); Commonw ealth v. Flaherty, 547 F. Supp. 172 (W.D. Pa. 1982).

In 1984, the Fraternal Order of Police, on behalf o f white male officers who claimed they were passed over for promotion in favor of minority officers, moved to " terminate" the October 12, 1979 order which, according to the motion itself, "imposed, in part, a program of preferentia l affirmative promotions to the ranks of sergeant and lieutenant. . . ." App. at 17-18. Judge Weber denie d the motion on January 25, 1984, stating merely: "The gr ounds of the present motion were considered at the time t he original order was entered and rejected." App. at 1 8. On appeal, this Court affirmed the order "without prej udice to presentation of a proper petition alleging changed circumstances and/or law." See App. at 24.

The F.O.P. filed another challenge later that year to the one-in-four minority hiring quota scheme imposed in 1975. On August 30, 1984 Judge Weber denied the F.O.P.'s petition, but in the course of his memorandum order referred to his October 12, 1979 order as having "i mposed a program of preferential affirmative promotions ap plicable to the ranks of sergeant and lieutenant in the Pitt sburgh Department of Police." App. at 23.

Seven years later, in 1991, white candidates for po lice officer challenged the 1975 one-in-four hiring quot a system. The matter came before then Chief Judge Cohill, who now presided. Judge Cohill dissolved the hiring quota, but in doing so noted the distinct orders covering hiring and promotion within the police department and stated, inter
alia:

We note that in the earlier years of the pre liminary injunction's operation, Judge Weber addresse d the issue of promotion of women and minorities a nd entered appropriate remedial orders. As Judg e Weber did, we view the preliminary injunction [re hiring] as separate from the issue of promotions. Thus, our Opinion today has no effect on these earlier orders. Likewise, we view these findings of discrimi nation in promotion as unrelated to our consideration of the preliminary injunction.

5Commonwealth v. Flaherty, 760 F. Supp. 472, 480 (W. D.

Pa. 1991) (citations omitted). The Commonwealth subsequently appealed from the dissolution of the preliminary injunction, but this court upheld the dissolution of the 1975 hiring quota. Commonwealth v. Flaherty, 983 F.2d 1267 (3d Cir. 1993).

It was not until 1993 that the NAACP and the Guardi ans of Greater Pittsburgh, co-plaintiffs in the origina l actions, sought action with respect to the court order regar ding promotions. Noting the progress made by the City an d an agreement the parties had reached, the plaintiffsfi led a formal motion to "dissolve the order of October 12, 1979." In a one-sentence order dated December 15, 1993 Jud ge Cohill dissolved the order of October 12, 1979. App . at 43. The following year, we reversed the district court' s award of attorneys' fees to intervening white police officer s against the Commonwealth in the hiring case. Commonwealth v

. Flaherty, 40 F.3d 57 (3d Cir. 1994).

II.

With this history in mind, we turn to this appeal b y the plaintiff officers of the district court's grant of summary judgment for the City. The basis for the officers' S 1983 suit against the City is their contention that the Octob er 12, 1979 order entered by Judge Weber had automatically dissolved in 1980 and thus was not in effect in Apr il 1993 when they were bypassed for promotion in favor of m inority officers. Therefore, although they do not expressly so argue, we infer they are arguing that more recent decision s restricting race-based promotions apply here.

Judge Smith, the district judge to whom this latest case was assigned, rejected that argument, holding that the October 12, 1979 order was in effect until its diss olution by Judge Cohill on December 15, 1993, and that the Cit y is shielded from liability when acting pursuant to a c ourt order. Judge Smith also held that the City did not have a duty to challenge the order following changes in th e law, a contention plaintiffs apparently made in the distri ct court that they do not repeat here. Finally, Judge Smith held that the promotions made in April 1993, before the disso lution,
were consistent with the then-effective 1979 mandat e.

6The history of this case set forth above shows that the

parties operated in the apparent belief that there were parallel orders: one entered in 1975 covering hirin g and one entered in 1979 covering promotions. Although the s tatus of the October 12, 1979 order was not without ambig uity in the years thereafter, there is ample support for Ju dge Smith's holding that the order was in effect until dissolved in 1993. Foremost is the subsequent ruling by Judge Weber himself in 1984 denying the F.O.P.'s request to dis solve the 1979 quota system mandated by the October 12, 1979 order. Indeed, if Judge Weber regarded the order as having expired in 1980, it is unlikely he would have enter tained a
motion for its dissolution on the merits.

Moreover, there is the inescapable fact that there was no judicial action on the docket regarding the October 12, 1979 order until Judge Cohill dissolved it on Decem ber 15, 1993, after the promotions in question. Although pl aintiff
officers dismiss the 1993 dissolution as mere "housekeeping," that is not persuasive in light of the fact that Judge Cohill had earlier dissolved the paralle l 1975 order dealing with hiring in 1991 and expressly sta ted that the dissolution of the 1975 injunction had "no effe ct" on the promotions quota system. Commonwealth v. Flaherty, 760 F. Supp. at 480 (citations omitted).

In reviewing the history of the injunction governin g hiring in 1993, we commented that "[t]his case is unusual because the preliminary injunction remained in effe ct for more than fifteen years, during which time no party sought to pursue the action on the merits or to dispose of the issue of permanent injunctive relief." Commonwealth v. Fl aherty,
983 F.2d at 1269. A similar comment could be made regarding the injunction governing promotions. Alth ough it may have initially served as a preliminary injuncti on, in time and with judicial rejection of efforts to diss olve it the October 12, 1979 order became effectively a permane nt injunction and the parties and the courts so treate d it.

While the 1979 order did not affirmatively direct t he City to promote officers, it did conditionally mandate t hat if the City effectuated such promotions, they were to be m ade in conformity with that order. The Policemen's Civil S ervice statute, however, obligated the City to address pro motions.

753 Pa. Stat. Ann. S 23535 ("Vacancies in positions in the

competitive class shall be filled by promotions fro m among persons holding positions in a lower grade in the b ureau of police.") (emphasis added). Thus, it is clear that the City
faced but one real course -- a Hobson's choice-- to follow the court's order. As such, the City has not delibe rately adopted an "official policy," other than to follow the law, that would give rise to section 1983 liability. See Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986); cf . Lockhart v. Hoenstine, 411 F.2d 455, 460 (3d Cir. 1969) ("[A ]ny public official acting pursuant to court directive is [ ] immune from suit"); Turney v. O'Toole, 898 F.2d 147 0, 1472-73 (10th Cir. 1990) (citations omitted) ("offi cials charged with the duty of executing a facially valid court order enjoy absolute immunity from liability for da mages in a suit challenging conduct prescribed in that order

.. . . `Facially valid' does not mean `lawful.' An erroneo us order can be valid.").

In light of our agreement with Judge Smith that the 1979 order was effective in 1993, we see no more basis t o impose liability upon the City for the 1993 promotions tha n there would have been to impose liability upon it for the 1979 promotions. There is nothing in the record to sugge st that in making the 1993 promotions the City acted other than in
the belief that the 1979 court order continued to a pply. Not until Judge Cohill's order of December 15, 1993 was this litigious episode in the history of the City of Pit tsburgh finally put to rest.

We see no error by the district court in its applic ation of the relevant legal principles, and we will affirm t he grant of summary judgment.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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