PETE O'SULLIVAN, ET AL., PETITIONERS V. UNITED STATES OF AMERICA,
ET AL.

   No. 86-1065

   In the Supreme Court of the United States

   October Term, 1986

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Seventh Circuit

   Memorandum for the United States in Opposition

   Petitioners contend that the court below erred in affirming the
district court's denial of their motion to intervene as untimely.  /1/

   1. In 1973, the United States commenced this lawsuit, alleging that
the City of Chicago had discriminated in hiring and promoting blacks
and Hispanics for its fire department (Pet. App. 2A, 1B-2B).  In 1974,
the parties entered into a consent decree, wherein the City agreed to
"increase substantially the minority composition in the ranks of
uniformed personnel within the Fire Department, so that it may become
more representative of the racial and ethnic composition of the City
as a whole" (id. at 4D).  To achieve this goal, the City agreed to
"adopt and seek to achieve a goal of hiring black and Spanish surnamed
individuals for at least 50% of the uniformed personnel accepted
annually for entry into the Fire Department for each of the next four
years" (ibid.; see also id. at 2A).  This consent decree governed the
City's hiring of firefighters from 1974 to 1979 (ibid.).

   In 1978, the City began administering a written examination to
applicants for firefighter positions (Pet. App. 2A).  Candidates who
passed that examination and a physical abilities test were placed on a
ranked list -- called the "8106 list" -- from which firefighters were
then hired (ibid.).  The 8106 test results had an adverse impact upon
minorities, however, and the United States insisted that its use was
inconsistent with the long-range hiring goals established by the 1974
consent decree (id. at 3A).  Accordingly, the parties negotiated, and
on June 26, 1979, the district court approved, an "Agreed-to
Injunctive Order" (Pet. App. 2A-3A, 2B), wherein the City recommitted
itself to the long-range goals of the 1974 consent decree (id. at 3A)
and promised to cease hiring from the 8106 list after July 1, 1981, or
after the 500th name on the list was reached, whichever occurred first
(ibid.).  /2/ As a contingency, however, the Order further provided
that the City could continue to use the 8106 list after the agreed
time if, but only if, it hired on a one minority-for-one white basis
(ibid.).

   Because of large hiring needs attributable to a strike, the City
failed to develop a new selection procedure by the time the 500th name
on the 8106 list was reached (Pet. App. 3A).  Accordingly, in February
1982, the City began hiring firefighters from the 8106 list on the one
minority-for-one white basis (ibid.).  It continued to do so until
March 1985, when it announced that a new examination had been
developed and that the 8106 list was to be retired (id. at 3A-4A).
The City further notified the 374 remaining candidates on the 8106
list, all of whom were white, that they would have to take the new
test if they wished to be hired as firefighters (id. at 4A).

   2. Petitioners, 15 white individuals who remained on the 8106 list,
then moved to intervene in the district court (Pet. App. 4A).  Their
application alleged that the City's decision to retire the 8106 list
was racially motivated and thus unconstitutionally deprived them of
firefighter positions (ibid.).  They asked the court to certify them
as representatives of all white candidates on the 8106 list as of
March 1985, to enjoin the City from retiring the list until all class
members had been hired as firefighters, to declare the Agreed-to
Injunctive Order unconstitutional, and to enter a judgment in the
class's favor for one million dollars (id. at 4A, 4B).

   The district court denied their application to intervene (Pet. App.
1B-21B).  /3/ It found that, insofar as petitioners sought to
challenge the provisions of the 1979 Agreed-to Injunctive Order, their
motion was untimely, reasoning that petitioners "knew or * * * should
have known of their interest in this litigation and in the terms of
the agreed order long before their current application to intervene
was filed" (id. at 6B), that "intervention * * * at this late date * *
* would undo the work which was completed six years ago, threatening
the parties with the prospect of further protracted litigation" (id.
at 7B-8B), that "the prejudice to the would-be intervenors (from)
their application (being) denied (was) not so great" (ibid.), and that
"no unusual circumstances (were) present which would weigh in favor of
granting leave * * * to intervene" (id. at 8B).  /4/ And it further
found that, insofar, as they sought to challenge the retirement of the
8106 list, petitioners had "no right to the continued use of the 8106
List and (thus) no interest in this litigation sufficient to warrant
their intervention" (id. at 15B).  /5/

   3. The court of appeals affirmed (Pet. App. 1A-15A).  It held that
"the only interest (petitioners) have in this lawsuit results from
their assertion that they are being denied employment as firefighters
on account of their race" (id. at 9A).  /6/ And it rejected arguments
by petitioners and the United States that the district court had
abused its discretion in finding that petitioners failed to raise this
interest in a timely fashion (id. at 10A-14A).

   Petitioners argued to the court that, while "they knew in 1979 that
they would not be hired in rank order," they "did not know, and had no
reason to know until the City announced the new examination, that they
would not be hired at all" (Pet. App. 11A (emphasis in original)).
But the court found that, under the terms of the Agreed-to Injunctive
Order, "the City was free to discard the 8106 list as soon as it
produced a new, validated examination and was bound to discard it when
one-for-one hiring was no longer possible" (ibid.).  Thus, it agreed
with the district court that petitioners "had notice when the
Agreed-to Injunctive Order was entered that they might not be hired on
account of their race" and, accordingly, that their motion to
intervene was untimely (ibid. (footnote omitted)).

   The United States, by contrast, conceded in the court of appeals
"that it (was) too late to challenge the terms of the 1979 Order and *
* * that (petitioners) were on notice that the list could be struck
(in favor of a new exam) at any time" (Pet. App. 12A).  /7/ It argued,
however, "that intervention is timely on the single ground that the
list (was) being retired for a racially discriminatory reason"
(ibid.), reasoning that petitioners "could not have known until the
City announced that the list was being discarded that only white
candidates would remain on the list at the time it was discarded"
(ibid.).  But the court rejected this argument too, finding that "the
very specific interest that the United States has isolated cannot
support the weight the United States seeks to place upon it" (ibid.),
that the "City's action in retiring the list cannot be separated from
the entire remedial scheme agreed to in 1979" (ibid.), and that "(a)ny
challenge to retiring the list because of its racial composition is of
necessity a challenge to the terms of the Agreed-to Injunctive Order"
(id. at 13A).  Thus, the court held "it was no abuse of discretion for
the district court to have decided that the (petitioners) knew or
should have known of their interest in this lawsuit substantially
before March of 1985" (id. at 14A).

   Finally, the court noted its agreement with the district court's
conclusion that the "balance of hardships" weighed against
intervention (Pet. App. 14A) and that no "'unusual circumstances'"
militated in favor of intervention (id. at 15A).  Accordingly, it
determined that the district court had not "abused its discretion in
ruling that the application to intervene was untimely" (ibid.).

   4. Petitioners argue (Pet. 18-26) that the district court abused
its discretion in finding their motion for intervention to be
untimely.  We agree with petitioners that, on the particular facts of
this case, their motion to intervene was timely filed.  But we do not
believe that this narrow, fact-bound, issue warrants review by this
Court.

   a. In our view, petitioners simply could not have asserted their
claim -- that the 8106 list was being retired for racial reasons --
prior to March 1985, when the City actually retired the list.  To be
sure, petitioners knew or should have known prior to this time that
the 8106 list was based on a discriminatory selection procedure, that
the Agreed-to Injunctive Order stated that hiring under it should
cease after July 1, 1981, or after the 500th name was reached,
whichever came first, and, in any event, that the City would be
required to retire the 8106 list when it no longer could accommodate
one-for-one minority hiring.  As long as minorities remained on the
list, however, the list could and in fact did continue to be used
under the one-for-one hiring provision of the decree.  Thus,
petitioners had a reasonable prospect of being hired as long as the
list remained in use and, accordingly, prior to March 1985 could not
show that they had been discriminatorily denied an employment
opportunity.  /8/ In short, prior to March 1985, had petitioners
attempted to assert their claim that the 8106 list could not be
retired for racial reasons, the district court would have had to
dismiss their application as premature and as entirely speculative in
nature.  Therefore, petitioners' motion to intervene, filed shortly
after the City decided to withdraw the list, should have been regarded
as timely filed.  The contrary decision of the court below is in
error.

   b. Nevertheless, the decision below does not warrant review by this
Court.  It does not establish any new principle concerning the law of
intervention.  The court acknowledged that the "timeliness" question
must be measured from the point at which the putative intervenors knew
or should have known that the particular interest which they asserted
was adversely impacted.  See Pet. App. 10A.  Likewise, it acknowledged
that claims of discriminatory denial of employment generally
constitute "interests" sufficient to support intervention.  Id. at 9A.
 It simply held that, on the unique facts of this case, petitioners
knew or should have known in 1979, when the Agreed-to Injunctive Order
was first entered, that the 8106 list would be withdrawn when no
minorities remained on it (and therefore that they had been denied a
prospective employment opportunity on the basis of race).  See id. at
11A-14A.  In our view, this uniquely factbound decision is not worthy
of this Court's time and attention, particularly in light of the
opportunity afforded petitioners to compete for positions on the basis
of the new test (see page 3, supra).

   It is therefore respectively submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   MARCH 1987

   /1/ Petitioners also contend (Pet. 12-17) that the Equal Protection
Clause prohibits a public employer from entering into a consent decree
which provides for racial preferences in hiring.  Because petitioners
were not allowed to intervene, neither court below addressed this
contention.  Accordingly, the issue is not properly before this Court
and we do not address it here.

   /2/ By this time, the parties anticipated that the City would have
developed and validated a new firefighter selection procedure and thus
would be permanently to retire the 8106 list.  Pet. App. 3A.

   /3/ Portions of two paragraphs of the district court's opinion are
omitted from the appendix to the petition.  See Pet. App. 10B.  The
two paragraphs are printed in their entirety in the addendum to this
response.  The material deleted from the appendix to the petition is
italicized.

   /4/ The court derived this four-part test from Stallworth v.
Monsanto Co., 558 F.2d 257, 264-266 (5th Cir. 1977).

   /5/ The court also denied the motion of the Chicago Firefighters
Union Local No. 2 for an order requiring the City to continue using
the 8106 list (Pet. App. 15B), or to grant priority status to those
remaining on the list (id. at 16B-18B).  The Union did not appeal
these rulings.

   /6/ The court rejected petitioners' claim that the collective
bargaining agreement between the City and the firefighters' union gave
them a property interest in the continued use of the 8106 list.  Pet.
App. 6A-8A.  And it found that petitioners did not have any interest
in being free from "'arbritrary and capricious'" compliance by the
City with the provisions of the Agreed-to Injunctive Order (id. at
9A).

   /7/ The United States opposed intervention in the district court
(Pet. App. 4A).  The United States reconsidered the intervention
question prior to the appeal, however.  Throughout the proceedings in
both courts, the United States took the position that there was no
merit to petitioners' substantive claim.

   /8/ In 1979, when the Agreed-to Injunctive Order was entered, there
were sufficient minorities on the list to ensure that, if the City had
to hire from the list beyond the 500th name, white employees (such as
petitioners) would still be hired.  Likewise, when hiring resumed in
February 1982 following the strike, there were sufficient minorities
remaining on the list to ensure that white employees such as
petitioners would continue to be hired pursuant to the one-for-one
hiring provision.  Indeed, it appears that, until the list was retired
in March 1985, petitioners could reasonably have anticipated that
eventually they would be hired pursuant to the one-for-one hiring
provision of the 1979 Order.

   Petitioners were not hired pursuant to the one-for-one hiring
provision because a disproportionate number of the minority candidates
on the list either could not be located or failed background
investigations or physical examinations.  Pet. 8;  Pet. App. 4A n.3,
4B.  It does not appear that petitioners knew or reasonably should
have known that the minority candidates would be dropped from the list
at this disproportionate rate.  Thus, there was no apparent reason to
predict that the supply of minority candidates would be prematurely
exhausted or that the City would retire the 8106 list before hiring
petitioners.

   APPENDIX