                                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 RICHARD S. ARNOLD, Chief Judge, and FLOYD R. GIBSON and MORRIS
     SHEPPARD ARNOLD, Circuit Judges.
MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Wade Backlund appeals the district court'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 of
Duluth Fire Department ("Fire Department").    He earned the highest score
on a written examination and was placed first on a ranked list of eligible
candidates.    This list determined which candidates could interview for
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 this
time, and Mr. Backlund, along with several other candidates, interviewed
for the openings on each occasion.        Mr. Backlund was never offered
employment.    After the second round of hiring, he learned that the Fire
Department had hired four firefighters, three of whom were related to
either present or former Fire Department employees.    One was a son of an
assistant fire chief, the second was a brother of a captain, and the third
was both a son of a former fire chief and a brother of a training officer.


       Mr. Backlund then sued, claiming that the Fire Department's hiring
practices violated various rights guaranteed to him by federal and state
law.    In particular, Mr. Backlund alleged that the Fire Department
discriminated against him in violation of the Equal Protection Clause
because he is not related to any present or past Fire Department employees.
The defendants moved for dismissal or summary judgment; because it reviewed
materials outside the pleadings to resolve some of Mr. Backlund's claims,
the district court treated that motion as one for summary judgment and
granted summary judgment 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 resolution as a dismissal for failure to state a claim under
Fed. R. Civ. P. 12(b)(6).           Because we believe that Mr. Backlund has stated
a claim under Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552
(1947), we reverse.


      In Kotch, aspiring river pilots challenged a Louisiana statute that
governed the appointment of river pilots.                The statute 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
relatives         and    friends   as   apprentices,        thus   discriminating      against
applicants without family connections in the river piloting business.                         Id.
at   555.         In upholding the statute, the Supreme Court examined the
relationship        between    this     method    of   selecting    pilots   and    the    broad
objectives of Louisiana's pilotage law.                  Id. at 557.    It emphasized that
river pilotage was "a unique institution and must be judged as such."                         Id.
Speaking of so-called "pilot towns," communities populated by relatives and
friends of pilots, the Court observed that in "these communities young men
have an opportunity to acquire special knowledge of the weather and water
hazards of the locality and seem to grow up with ambitions to become pilots
in the tradition of their fathers, relatives, and neighbors."                      Id. at 559.
The Court also alluded to "the benefits to morale and esprit de corps which
family      and    neighborly      tradition     might   contribute,"     id.     at   563,    as
supporting a policy favoring relatives and friends as pilots.


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




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institution of pilotage in the light of its history in Louisiana," id., the
plaintiffs      had   not   made    out    a    case    for    the   violation     of   their
constitutional right to the equal protection of the laws.


     As    we   understand    the   district         court's   order   in   this   case,   it
dismissed Mr. Backlund's discrimination claim because it read Kotch as
holding that showing favoritism to relatives in hiring could never violate
the Equal Protection Clause.              This reading, in our view, considerably
overstates the reach of Kotch.             The Court in Kotch grounded its narrow
holding on the unique character of river piloting.                   It did not hold that
nepotism could never offend the Equal Protection Clause, it merely held
that it did not do so in the circumstances that Kotch presented.                   The class
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 rational
basis, the district court erred when it dismissed Mr. Backlund's claim
without conducting a rational basis review.


     We believe that Kotch proceeds from the assumption that a general
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 it
were sufficient, or even of legal relevance, we are confident that the
Court would have said so.


     Rationality for equal protection purposes therefore evidently has a
somewhat specialized meaning when governmental employment 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 left-handed applicants might offer as a reason the fact
that he or she finds them sinister.    However sincere as a subjective matter
the agent's preference for right-handed company might be, we are confident
that the Supreme Court would find his reason objectively unreasonable, and
actions based on it unconstitutional, even if the agent's job performance
were affected by the presence of left-handed workers.    Whatever may be the
outer boundaries of the idea of rationality in this context, we think that
Kotch makes it abundantly clear that nepotism in governmental hiring
requires some measure of justification before it can pass constitutional
muster.   Such justification must connect the challenged hiring criterion
to the capacity of the applicant to perform the duties of the job applied
for.   That showing is absent from this record.   Indeed, the record contains
nothing about the culture of firefighting and of firefighters, or the
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 reverse
and remand for further proceedings consistent with this opinion.


       A true copy.


            Attest:


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




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