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, Noo

________________
_________________
_____________
and Lamond were on brief for intervenor-appellants, Boston Pol
___________
Superior Officers Federation.
Jonathan M. Albano with whom Marianne Meacham, Bingham, Dana
___________________
________________
_____________
Gould, Alan J. Rom, and Lawyers Committee for Civil Rights were

_____ ____________
___________________________________
brief for
appellee, Massachusetts Association
of Minority
Enforcement Officers.
William W. Porter, Assistant Attorney General, with whom Sc
__________________
__
Harshbarger, Attorney General, was on brief for appellee, Person
___________
Administrator
of
the
Massachusetts
Department
of
Person
Administration.
____________________
____________________
______________________
* Of the Eleventh Circuit, sitting by designation.
** Of the District of Puerto Rico, sitting by designation.

PER CURIAM:

The

appeal

in this

employment

and

Department

(BPD)

appellant,

Boston Police

racial

promotion of

has standing, the

must

be

discrimination

case

police

officers in

dismissed

because,

Superior Officers

challenge to

involving

the
to

Boston Pol

the

extent

Federation (Federatio

the district court's

amendment to

prior consent decree is not ripe for judicial review at this time.
An
consent

understanding of
decree and

the

litigation

its amendment

in

that led

1991 is

of

to

the

origi

interest but

necessary

to

the

decision

Association of Minority Law

original
Personnel

action in

1978

on

this

appeal.

The

Massachuse

Enforcement Officers (MAMLEO),1 filed

against

Administration

(DPA)

the

BPD

and

alleging

the

Department

unlawful

employme

compensation, and promotional practices based on race in violation

inter alia, Title
_____ ____

VII of the

2000e et seq.
__ ___

1980, the district court approved a

In

Civil Rights Act

of 1964, 42 U.S.C.

consent dec

to which all parties agreed.

The consent
and

future Black

timetables
officers

decree certified
officers

in the

a class

consisting of

all pres

BPD,

and established

goals

for the promotion of specified

to the rank of sergeant.

numbers of qualified Bl

The decree also required that

examinations for promotion be validated in accordance with the Unif

Guidelines

on Employee

Selection Procedures,

29 C.F.R.

1607.1

____________________

1
MAMLEO is the
successor organization to the
Massachuse
Association of Afro-American Police which brought the underlying su
MAMLEO now acts as the plaintiff in this action.

seq.,

and

required

the BPD

to

provide

training

for all

pers

___
planning

to

take

promotional

examinations, with

intervening

procedures

equal

access

minority applicants.
After
MAMLEO

certain

challenged

the

DPA's

promotional examinations

administration

scheduled for

lieutenants, and captains.

After

things, permitted the DPA

and

modifications,

of

state-wide

June 19, 1991

court rulings

pol

for sergean

which, among

to administer the 1991 exams

ot

as schedul

the parties jointly filed an Agreement to Amend the Consent

Decree

settle MAMLEO's challenge to the 1991 exams.

The

Federation,

lieutenants,

and

an

captains

organization
in

the

intervene for the

limited purpose

consent decree.

The Federation

police

representing
force,

of opposing the
challenges

was

sergean
allowed

amendment to

the amendment

on

appeal, as it did in the district court, to the extent that it exte

the

terms of the decree

positions of lieutenant
the

initial decree

to include promotional
and captain.

and a

examinations for

The Federation

1985 modification

maintained t

governed promotions

sergeant positions only and did not cover promotions to lieutenant

captain.

It argues that the district court exceeded its

applying the consent decree

of

to lieutenants and captains.

that contention are not relevant to

authority

The mer

our decision that the case

not ripe for review.

Under the terms
promotions

of the amended

to the ranks of

decree, the BPD

lieutenant and captain

would limit

from the eligi

lists established from the results of the June 1991 examinations.

-3-

BPD had set forth its estimates of the numbers of

staffing needs
year.

and budget

It agreed that

constraints would

promotions that

permit during

such constraints "will permit the promotion

no more than twenty-five (25) officers to the rank of

(6) officers to the rank
promote more than

captain and

of lieutenant and agree[d] that it

that number

1991 eligible list

the n

of lieutenants and

without plaintiff's

will

captains from

consent, or,

in the

abse

thereof, leave of Court."2

The
members
for

Federation challenges

decree on

behalf of

who took the 1991 examinations, were put on promotional li

lieutenant

consent

the consent

and captain,

decree without

and might

being fairly

Until the situation arises,

be

bypassed because

considered for

of

an appointme

however, where there is a likelihood o

____________________

2
The district court recited the "salient features of the Agreeme
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
the completion of the above.

decree and of

this lawsuit u

-44

vacancy for an appointment

(25 captains,

over and above the number

6 lieutenants) specifically exempted

of appointme

under the cons

decree, there is no justiciable issue ripe for decision of whether

consent decree would indeed

result in such a person

not being fai

considered.
Ripeness

doctrine is grounded

discretionary reasons of policy.

case involves
ripeness

merely

in both

The central concern is

hypothetical

turns on the 'fitness

Article III

dispute.

of the issues

"The

concepts
whether
question

for judicial decisi

and 'the hardship to the parties of withholding court consideration

Pacific Gas & Elec. Co. v. State Energy Resources Conservation & D
___________________________________________________________________

Comm'n,
______

461 U.S. 190, 201

(1983) (citation omitted),

quoted in W
_________ _

Grace & Co. v. United States Envtl. Protection Agency, 959 F.2d 3
_______________________________________________________
364 (1st Cir.

1992).

review is whether the

that may not
See
___

The critical question

claim involves uncertain and contingent

occur as anticipated,

or indeed may

Lincoln House, Inc. v. Dupre, 903

____________________________

Clearly,

concerning fitness

the Federation's

not occur at

eve

F.2d 845, 847 (1st Cir. 199

alleged injury

is contingent

upon eve

that may not occur as anticipated or may not occur at all.

Any injury to the

Federation is contingent upon: 1) a decision

the BPD to promote more than six lieutenants or more than 25 captai
and 2) the refusal of both the

MAMLEO and the district court to al

an additional promotion to be made from the 1991 lists.

the district court's

conclusion that

the "Federations's

We agree w

expectat

that more than six lieutenants are likely to be appointed before Ju

1992,

is

illusory,

to

say

the

very

least."

The

Federatio

-55

expectation that the

also is illusory.

DPA would want to appoint

more than 25 capta

Thus, the Federation's claim is too hypothetical

be fit for judicial review.

In
suffer

addition, the

Federation has

any

if

hardship

judicial consideration

Federation

can hardly

cannot yet

be proven and may

ever do
its

not demonstrated

claim

hardship since
never occur.

is

the
If

that

it w

withheld.

injury it

alle

the contingent eve

occur, the Federation may then ask the district court to h

challenge to

the

amendment.

There is

no

concern

that

Federation will lose its right to contest the issues presented on t

appeal.

Indeed,

should change ...

amendment of

the district court

I will

the decree

contingent nature of

has stated:

"If the

entertain an application
as

the facts

the injury

warrant."

alleged by the

situat

for such
In

furt

light of

Federation, and

absence of any hardship if consideration is withheld, we hold that

Federation's

challenge to the caps

in the amended

consent decree

not ripe.
The
that

amended consent

decree further

stated that

the BPD

agr

its 1992 examinations for the ranks of sergeant, lieutenant,

captain would be of a "significantly different type and/or scope" t

the 1991 exams.
significantly

Upon the DPA's determination that the 1992 exams w

different

than

the

1991 exams,

the

eligible

li

comprised of candidates who pass the 1992 exams would replace the 1
eligible

lists.

The lists

would

not

be

merged.

Because

Federation has not yet acquired any rights in the merged or non-mer
lists, the Federation has no standing to contest this provision.
-66

An inquiry
the litigant

into standing

generally seeks

is entitled to have

to determine

the court decide the

dispute or of particular issues."

"whet

merits of

Warth v. Seldin, 422 U.S. 490, 4

_______________

95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); United States v. AVX Corp.,

___________________________
F.2d 108

(1st Cir. 1992).

The plaintiff must allege a personal st

in the outcome of the controversy in order to

and
at

justify the court's use of its

498.

The

abstract or

injury alleged must

hypothetical.

charged

how passionate

or

with public import

actual injury."

remedial powers.
be distinct and

Warth, 422 U
_____
palpable, and

Allen v. Wright, 468 U.S.

________________

S.Ct. 3315, 82 L.Ed.2d 556 (1984).

matter

warrant judicial rev

"A mere interest in an event --

sincere the
the event --

AVX Corp., 962

_________

737, 751,

interest

and no

matter

will not substitute

F.2d at 114.

See generally
___ _________

for

Uni
___

States v. Students Challenging Regulatory Agency Procedures (SCRA

___________________________________________________________________
412 U.S. 669, 687, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973).
The
its

Federation has

members.

failed to demonstrate a

The Federation has

of the decree will have

promotional expectations.

cognizable injury

not shown that the merger provis

an adverse impact on its

members' legitim

There is no evidence which establishes t

its members will be harmed or affected in any legally

The

BPD has

full discretion

which are necessary.

1992 exams which are
to

determine

See
___

the number

has the authority

of promoti

to agree to

significantly different from the 1991

how long

cancel them.
eligibility

The DPA

to determine

meaningful w

to maintain

Mass.

Gen. L.

lists have no vested

eligibility
ch.

31,

des

exams

lists, and
25.

interest in the

when

Applicants
maintenance of

-77

lists for any period of time.

(1st Cir. 1991), cert. denied,
____ ______

See Stuart v. Roache, 951 F.2d 446,

___ ________________
U.S.
___

, 112 S.Ct. 1948

(199

____

Burns v. Sullivan, 619 F.2d 99, 104 (1st Cir.), cert. denied, 449 U
_________________
____ ______
893 (1980).
the

Having

no standing to challenge the

merger provision

district court, the Federation likewise has no standing to pur

this appeal.
In any event,
decision until
affect the

the merger

the Federation

issue would

not be

could show that

promotion of at least

ripe for

judic

the non-merger

one of its members.

wo

Non-merger

contingent upon the DPA's

were significantly

determination that the 1991 and

different.

By law,

only lists

established f

promotional examinations "of the same type" may be merged.

L. ch. 31
the

two

25.
exams,

judicial

review.

Agency,
______

959 F.2d

Federation's

Because the DPA

Federation's

has not yet made any

challenge is

too

1992 ex

Mass. G

comparison

uncertain

to me

W.R. Grace & Co. v. United States Envtl. Protect

________________________________________________
360,

364-65 (1st

challenge to

consent decree is dismissed.

the

Cir.

1991).

district court's

Costs to appellees.

DISMISSED.
DISMISSED.

-88

Accordingly,
order amending