
USCA1 Opinion

	




        August 18, 1992     UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1120           MASSACHUSETTS ASSOCIATION OF AFRO-AMERICAN POLICE, INC., ET AL.,                                Plaintiffs, Appellees,                                          v.                        THE BOSTON POLICE DEPARTMENT, ET AL.,                                Defendants, Appellees.                                      __________                     BOSTON POLICE SUPERIOR OFFICERS FEDERATION,                                Intervenor, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Walter Jay Skinner, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Roney,* Senior Circuit Judge,                                    ____________________                            and Pieras,** District Judge.                                          ______________                                 ____________________            James F.  Lamond with whom Alan  J. McDonald  and McDonald, Noonan            ________________           _________________      ________________        and  Lamond were  on  brief for  intervenor-appellants, Boston  Police        ___________        Superior Officers Federation.            Jonathan M.  Albano with  whom Marianne Meacham,  Bingham, Dana  &            ___________________            ________________   ________________        Gould, Alan J.  Rom, and  Lawyers Committee for  Civil Rights were  on        _____  ____________       ___________________________________        brief  for   appellee,  Massachusetts  Association   of  Minority  Law        Enforcement Officers.            William W.  Porter, Assistant  Attorney General,  with whom  Scott            __________________                                           _____        Harshbarger, Attorney  General, was  on brief for  appellee, Personnel        ___________        Administrator   of   the   Massachusetts   Department   of   Personnel        Administration.                                 ____________________                                 ____________________        ______________________        *  Of the Eleventh Circuit, sitting by designation.        ** Of the District of Puerto Rico, sitting by designation.          PER CURIAM:            The  appeal  in this  racial  discrimination  case  involving  the        employment  and  promotion of  police  officers in  the  Boston Police        Department  (BPD)  must  be  dismissed  because,  to  the  extent  the        appellant,  Boston Police  Superior Officers  Federation (Federation),        has standing, the  challenge to  the district court's  amendment to  a        prior consent decree is not ripe for judicial review at this time.            An  understanding of  the  litigation  that led  to  the  original        consent  decree and  its amendment  in  1991 is  of  interest but  not        necessary  to  the  decision  on   this  appeal.    The  Massachusetts        Association of Minority Law  Enforcement Officers (MAMLEO),1 filed the        original  action in  1978  against  the  BPD  and  the  Department  of        Personnel   Administration   (DPA)   alleging   unlawful   employment,        compensation, and promotional practices based on race in violation of,        inter alia, Title  VII of the  Civil Rights Act  of 1964, 42 U.S.C.           _____ ____        2000e et seq.  In  1980, the district court approved a  consent decree              __ ___        to which all parties agreed.            The consent  decree certified  a class  consisting of  all present        and  future Black  officers  in the  BPD,  and established  goals  and        timetables  for the promotion of specified  numbers of qualified Black        officers  to the rank of sergeant.   The decree also required that the        examinations for promotion be validated in accordance with the Uniform        Guidelines  on Employee  Selection Procedures,  29 C.F.R.    1607.1 et                                                                            __                                    ____________________        1   MAMLEO  is  the   successor  organization  to  the   Massachusetts        Association of Afro-American Police which brought the underlying suit.        MAMLEO now acts as the plaintiff in this action.        seq.,  and  required  the BPD  to  provide  training  for all  persons        ___        planning  to  take  promotional  examinations, with  equal  access  to        minority applicants.             After  certain  intervening  procedures   and  modifications,  the        MAMLEO  challenged  the  DPA's  administration  of  state-wide  police        promotional examinations  scheduled for  June 19, 1991  for sergeants,        lieutenants, and captains.   After  court rulings  which, among  other        things, permitted the DPA  to administer the 1991 exams  as scheduled,        the parties jointly filed an Agreement to Amend the Consent  Decree to        settle MAMLEO's challenge to the 1991 exams.              The    Federation,   an   organization   representing   sergeants,        lieutenants,  and  captains  in  the  police  force,  was  allowed  to        intervene for the  limited purpose  of opposing the  amendment to  the        consent decree.    The Federation  challenges  the amendment  on  this        appeal, as it did in the district court, to the extent that it extends        the  terms of the decree  to include promotional  examinations for the        positions of lieutenant  and captain.  The Federation  maintained that        the  initial decree  and a  1985 modification  governed promotions  to        sergeant positions only and did not cover promotions to lieutenant and        captain.  It argues that the district court exceeded its  authority in        applying the consent decree  to lieutenants and captains.   The merits        of  that contention are not relevant to  our decision that the case is        not ripe for review.            Under the terms  of the amended  decree, the BPD  would limit  the        promotions  to the ranks of  lieutenant and captain  from the eligible        lists established from the results of the June 1991 examinations.  The                                         -3-                                          3        BPD had set forth its estimates of the numbers of  promotions that its        staffing needs  and budget  constraints would  permit during  the next        year.  It agreed that  such constraints "will permit the promotion  of        no more than twenty-five (25) officers to the rank of  captain and six        (6) officers to the rank  of lieutenant and agree[d] that it  will not        promote more than  that number  of lieutenants and  captains from  the        1991 eligible list  without plaintiff's  consent, or,  in the  absence        thereof, leave of Court."2            The  Federation challenges  the consent  decree on  behalf of  its        members  who took the 1991 examinations, were put on promotional lists        for  lieutenant  and captain,  and might  be  bypassed because  of the        consent  decree without  being fairly  considered for  an appointment.        Until the situation arises,  however, where there is a likelihood of a                                    ____________________        2   The district court recited the "salient features of the Agreement"        as follows:            1.   Appointment of 85  sergeants from the  list of patrolmen            who  passed the 1991 examination.   The BPD will use its best            efforts to  increase the number of African-American sergeants            to 40, which would satisfy  its obligations under the consent            decree;            2.  Appointment of six lieutenants from the 1991 list;            3.  Appointment of 35 [sic] captains from the 1991 list;            4.    Offering  a   new  state-wide  examination  for  police            promotions in June  of 1992, with  the option  to the BPD  to            offer  a special  examination for  Boston, provided  that all            such examinations are certified as complying with the Uniform            Guidelines  on  Employee Selection  Procedures  and the  1991            lists will not be merged with the lists generated by the 1992            examinations; and            5.   Termination of  the consent  decree and of  this lawsuit upon            the completion of the above.                                         -4-                                          4        vacancy for an appointment  over and above the number  of appointments        (25 captains,  6 lieutenants) specifically exempted  under the consent        decree, there is no justiciable issue ripe for decision of whether the        consent decree would indeed  result in such a person  not being fairly        considered.              Ripeness  doctrine is grounded  in both  Article III  concepts and        discretionary reasons of policy.   The central concern is  whether the        case involves  a  merely  hypothetical  dispute.    "The  question  of        ripeness  turns on the 'fitness  of the issues  for judicial decision'        and 'the hardship to the parties of withholding court consideration.'"        Pacific Gas & Elec. Co. v. State  Energy Resources Conservation & Dev.        ______________________________________________________________________        Comm'n,  461 U.S. 190, 201  (1983) (citation omitted),  quoted in W.R.        ______                                                  _________ ____        Grace  & Co. v. United States Envtl.  Protection Agency, 959 F.2d 360,        _______________________________________________________        364 (1st Cir.  1992).   The critical question  concerning fitness  for        review is whether the  claim involves uncertain and contingent  events        that may not  occur as anticipated,  or indeed may  not occur at  all.        See  Lincoln House, Inc. v. Dupre, 903  F.2d 845, 847 (1st Cir. 1990).        ___  ____________________________        Clearly,  the Federation's  alleged injury  is contingent  upon events        that may not occur as anticipated or may not occur at all.            Any injury to the  Federation is contingent upon: 1) a decision by        the BPD to promote more than six lieutenants or more than 25 captains,        and 2) the refusal of both the  MAMLEO and the district court to allow        an additional promotion to be made from the 1991 lists.  We agree with        the district court's  conclusion that  the "Federations's  expectation        that more than six lieutenants are likely to be appointed before June,        1992,  is  illusory,  to  say  the  very  least."    The  Federation's                                         -5-                                          5        expectation that the  DPA would want to appoint  more than 25 captains        also is illusory.  Thus, the Federation's claim is too hypothetical to        be fit for judicial review.            In  addition, the  Federation has  not demonstrated  that  it will        suffer  any  hardship  if  judicial consideration  is  withheld.   The        Federation  can hardly  claim  hardship since  the  injury it  alleges        cannot yet  be proven and may  never occur.  If  the contingent events        ever do  occur, the Federation may then ask the district court to hear        its  challenge to  the  amendment.    There is  no  concern  that  the        Federation will lose its right to contest the issues presented on this        appeal.  Indeed,  the district court  has stated:   "If the  situation        should change ...  I will  entertain an application  for such  further        amendment of  the decree  as  the facts  warrant."   In  light of  the        contingent nature of  the injury  alleged by the  Federation, and  the        absence of any hardship if consideration is withheld, we hold that the        Federation's  challenge to the caps  in the amended  consent decree is        not ripe.            The  amended consent  decree further  stated that  the BPD  agreed        that  its 1992 examinations for the ranks of sergeant, lieutenant, and        captain would be of a "significantly different type and/or scope" than        the 1991 exams.  Upon the DPA's determination that the 1992 exams were        significantly  different  than  the  1991 exams,  the  eligible  lists        comprised of candidates who pass the 1992 exams would replace the 1991        eligible  lists.    The lists  would  not  be  merged.    Because  the        Federation has not yet acquired any rights in the merged or non-merged        lists, the Federation has no standing to contest this provision.                                          -6-                                          6            An inquiry  into standing  generally seeks  to determine  "whether        the litigant  is entitled to have  the court decide the  merits of the        dispute or of particular issues."  Warth v. Seldin, 422 U.S. 490, 498,                                           _______________        95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); United States v.  AVX Corp., 962                                              ___________________________        F.2d 108  (1st Cir. 1992).  The plaintiff must allege a personal stake        in the outcome of the controversy in order to  warrant judicial review        and  justify the court's use of its  remedial powers.  Warth, 422 U.S.                                                               _____        at  498.  The  injury alleged must  be distinct and  palpable, and not        abstract or  hypothetical.   Allen  v. Wright, 468 U.S.  737, 751, 104                                     ________________        S.Ct. 3315, 82 L.Ed.2d 556 (1984).  "A mere interest in an event -- no        matter  how passionate  or  sincere the  interest  and no  matter  how        charged  with public import  the event --  will not substitute  for an        actual injury."   AVX Corp., 962  F.2d at 114.   See generally  United                          _________                      ___ _________  ______        States v. Students Challenging  Regulatory Agency Procedures  (SCRAP),        _____________________________________________________________________        412 U.S. 669, 687, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973).             The  Federation has  failed to demonstrate a  cognizable injury to        its  members.  The Federation has  not shown that the merger provision        of the decree will have  an adverse impact on its  members' legitimate        promotional expectations.  There is no evidence which establishes that        its members will be harmed or affected in any legally  meaningful way.        The  BPD has  full discretion  to determine  the number  of promotions        which are necessary.   The DPA  has the authority  to agree to  design        1992 exams which are  significantly different from the 1991  exams and        to  determine  how long  to maintain  eligibility  lists, and  when to        cancel them.    See  Mass.  Gen. L.  ch.  31,    25.    Applicants  on                        ___        eligibility  lists have no vested  interest in the  maintenance of the                                         -7-                                          7        lists for any period of time.  See Stuart v. Roache, 951 F.2d 446, 455                                       ___ ________________        (1st Cir. 1991), cert. denied,      U.S.     , 112 S.Ct. 1948  (1992);                         ____  ______   ___      ____        Burns v. Sullivan, 619 F.2d 99, 104 (1st Cir.), cert. denied, 449 U.S.        _________________                               ____  ______        893 (1980).  Having  no standing to challenge the  merger provision in        the  district court, the Federation likewise has no standing to pursue        this appeal.            In any event,  the merger  issue would  not be  ripe for  judicial        decision until  the Federation  could show that  the non-merger  would        affect the  promotion of at least  one of its members.   Non-merger is        contingent upon the DPA's  determination that the 1991 and  1992 exams        were significantly  different.   By law,  only lists  established from        promotional examinations "of the same type" may be merged.  Mass. Gen.        L. ch. 31    25.  Because the DPA  has not yet made any  comparison of        the  two  exams,  Federation's  challenge is  too  uncertain  to merit        judicial  review.  W.R. Grace & Co. v. United States Envtl. Protection                           ___________________________________________________        Agency,  959 F.2d  360,  364-65 (1st  Cir.  1991).   Accordingly,  the        ______        Federation's  challenge to  the  district court's  order amending  the        consent decree is dismissed.  Costs to appellees.            DISMISSED.            DISMISSED.                                         -8-                                          8
