UNITED STATES OF AMERICA, PETITIONER V. PHILLIP PARADISE, JR, ET
   AL.

   No. 85-999

   In the Supreme Court of the United States

   October Term, 1985

   The Solicitor General, on behalf of the United States of America,
petitions for a writ of certiorari to review the judgment of the
United States Court of Appeals for the Eleventh Circuit in this case.

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

                      PARTIES TO THE PROCEEDINGS

   The parties to the proceedings before the court of appeals were as
follows:  the United States of America, plaintiff-appellant;  Phillip
Paradise, Jr., and the class he represents, plaintiffs-appellees;  the
Alabama Department of Public Safety and its director, Bryon Prescott,
defendants-appellees;  and V.E. McClellan, William M. Bailey, D.B.
Mansell, Dan Davenport, and the class they represent,
defendants-intervenors-appellees.

            TABLE OF CONTENTS
   Questions Presented
   Parties to the Proceedings
   Opinions below
   Jurisdiction
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D
   Appendix E
   Appendix F

                             JURISDICTION

   The judgment of the court of appeals (App. infra, 83a-84a) was
entered on August 12, 1985.  On November 5, 1985, Justice Powell
extended the time to petition for certiorari to and including December
10, 1985.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTIONS PRESENTED

   1. Whether the district court's provision of supplemental relief to
private plaintiffs in the form of a one-black-for-one-white promotion
quota for state troopers constitutes a modification of the promotion
requirements of two existing consent decrees and is justified by any
post-decree discrimination or other changed circumstances.

   2. Whether the one-black-for-one-white promotion quota imposed by
the district court is permissible under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. 2000e et seq., inasmuch as it accords
preferential treatement to black applicants for promotion who have not
been identified as actual victims of racial discrimination.

   3. Whether the one-black-for-one-white promotion quota is
permissible under the equal protection guarantees of the Fourteenth
and Fifth Amendments to the United States Constitution.*

                               STATEMENT

   This employmend discrimination case involves a challenge to a
one-black-for-one-white promotion quota imposed by a district court,
ostensibly pursuant to earlier consent decrees in this litigation.

   1.The NAACP brought this class action suit against the Alabama
state trooper force in January 1972.  The United States was made a
party plaintiff and Phillip Paradise, Jr., was permitted to intervene
on behalf of a class of black plaintiffs, (Paradise), shortly
thereafter.

   In the initial phase of the suit, the district ocurt determined
that the Alabama Department of Public Safety and other state
defendants (the Department) had engaged in a pattern and practice of
discrimination in hiring;  enjoined them from engaging in employment
practices for the purpose or with the effect of discriminating on the
basis of race or color;  and ordered them to hire one black trooper
for each white trooper hired until blacks comprised 25 percent of the
state trooper force.  NAACP v. Allen, 340 F.Supp. 703 (M.D.Ala 1972),
aff'd, 493 F.2d 614 (5th Cir. 1974).  /1/ Three years later, in August
1975, the court granted supplemental relief after concluding that the
Department had artifically restricted the size of the trooper force
and the number of new troopers hired in order to frustrate the court's
1972 order (see App. infra, 7a-8a).  Further supplemental relief was
granted in two consent decrees, one entered in February 1979 (id. at
74a-82a) and the other in August 1981 (id. at 65a-73a).

   2. The 1979 consent decree resolved several issues then before the
court, including the matter of promotions.  The Department agreed to
"have as an objective * * * an employment and promotion system that is
radically neutral" (App., infra 75a) and "not to engage in any act or
practice which has a purpose or effect of unlawfully discriminating
against blacks * * * (or) which discriminates on the basis of race in
hiring (or) promoting (ibid.) With respect to promotions, the
Department specifically agreed to have as an objective the utilization
of a promotion procedure which is fair to all applicants and which
promotion procedure when used either for screening or ranking will
have little or no adverse impact upon blacks seeking promotion to
corporal" (id. at 77a).  The Department also agreed, purusant to that
objective, to develop within one year from entry of the decree, and
to, submit for the other parties' reveiw and the court's approval a
procedure for corporal promotions conforming with the 1978 Uniform
Guidelines on Employee Selection Procedures, 43 Fed. Reg. 38290-38309,
and having little or no adverse impact on blacks (App. infra, 77a-78a.
 Upon completion of validation of the promotion procedure for corporal
promotions, the Department was to begin validation of promotion
procedures for the positions of sergeant, lieutenant, captain, and
major, in turn (id. at 78a).  In the interim, the Department was to
use the state merit system for all corporal promotions and to promote
at least three black troopers to the rank of corporal (ibid).  More
detailed interim procedures set forth in an agreement between the
parties and, purusant to the consent decree and that agreement, four
black troopers and six white troopers were promoted to corporal
positions in February 1980.

   Over two years after entry of the first consent decree, the
Department moved for approval of a written examination for promoting
corporals.  Because the examination had not been validated in
accordance with the standards set forth in the Uniform Guidelines,
Paradise and the United States took the position that its use would
not be justified if the results had an adverse impact on black
applicants.  However, in a second consent decree entered in August
1981 (App., infra, 65a-73a), the parties agreed that the examination
would be administered and scored;  that the scores would be used in
conjunction with other factors to rank applicants on a promotion
register;  and that the promotion register would then be reviewed "to
determine whether the selection procedure has an adverse impact
against black applicants" (id. at 68a), either as to the initial group
of promotions to be made or as to all promotions anticipated during
the life of the register.  If the selection procedure had little or no
adverse impact on blacks, selections were to be made in rank order
from the promotion register;  if the selection procedure did have an
adverse impact on blacks, the Department was to propose an alternative
procedure for promotions to be made "in a manner that does not result
in adverse impact for the initial group of promotions or cumulatively
during use of the procedure" (id. at 69a).  If the parties could not
agree on an appropriate promotion procedure, the matter was to be
submitted to the court for resolution (ibid.).

   The Department's 1981 examination was administered and scored and a
promotion register was prepared.  In June 1982, the Department advised
the United States that there was a current need for 8-10 promotions to
corporal, and that it was anticipated that a total of 16-20 corporal
promotions would be made from the 1981 promotion register.  We
responded by advising the Department that, in our view, rank-ordered
use of the unvalidated 1981 promotion procedure would result in a
substantial adverse impact on black applicants for promotion, and,
accordingly, the Department should submit an alternative proposal for
making promotions in conformity with 1979 and 1981 consent decrees.
No such proposal was submitted to us, and no promotions were made,
during the next nine months.

   3. In April 1983, Paradise filed a "motion to enforce" the terms of
the 1979 and 1981 consent decrees, seeking a court order requiring the
Department to promote qualified black troopers to all upper rank
positions in equal numbers with white troopers until either
approximately 25 percent of each rank above entry level is black or
promotion procedures complying with the consent decrees have been
developed and implemented.

   The United States agreed that the consent decrees should be
enforced, but opposed imposition of a one-black-for-one-white
promotion quota.  V.E. McClellan and three other white troopers were
permitted to intervene on behalf of a class composed of the top-ranked
white applicants for promotion to corporal on the 1981 promotion
register (McClellan).  McClellan and the Department also opposed
imposition of a promotion quota.

   In an order entered October 28, 1983, the district court found that
use of the Department's 1981 selection procedure would have an adverse
impact on blacks, prohibited its use, and ordered the Department to
submit a proposal for making at least 15 corporal promotions in a
manner that would not have an adverse racial impact.  580 F.Supp. 171
(M.D. Ala. 1983).  The court indicated that, if the parties could not
agree on a promotion plan, the issue of corporal promotions would be
deemed submitted for resolution by the court pursuant to the 1981
consent decree.  When the other parties objected to the proposal
submitted by the Department pursuant to the court's October 1983
order, the court took the matter under advisement.

   4. On December 15, 1983, the district court issued an order and
memorandum opinion granting Paradise's "motion to enforce" and the
relief requested.  585 F.Supp. 72 (App., infra, 55a-64a).  The court
found that as of the date of decision there were still only four
blacks among the Departments' upper ranks (id. at 60a), and that the
Department was still "without acceptable procedures for advancement of
black troopers" into these ranks (ibid.).  Based on these findings,
the court entered an order enjoining the Department "from failing to
promote from this day forward, for each white trooper promoted to a
higher rank, one black trooper to the same rank, if there is a black
trooper objectively qualified to be promoted to the rank" (id. at
56a).  /2/ The court further ordered this promotion quota to "remain
in effect as to each trooper rank above the entry-level rank until
either approximately 25% of the rank is black or the (Department has)
developed and implemented a promotion plan for the rank which meets
the prior orders and decrees of the court and all other relevant legal
requirements" (ibid.).  Finally, the court gave the Department 35 days
to submit for the court's approval a schedule for the development of
promotion procedures for all ranks above the entry-level rank (ibid.).
 /3/

   5. The United States, the Department, and McClellan appealed to the
United States Court of Appeals for the Eleventh Circuit.  On August
12, 1985, the court of appeals affirmed the district court's order
imposing the one-black-for-one -white promotion quota.  767 F.2d 1514
(App., infra, 1a-54a).  The court of appeals held that the quota order
did not constitute a modification of the 1979 and 1981 consent
decrees, as those decrees are concerned with the impact of proposed
promotion procedures "on blacks, and blacks alone," do not prohibit
procedures adversely impacting on whites, and expressly authorized
plaintiffs to apply for an order enforcing their terms or providing
any other appropriate relief (id. at 26a).

   The court of appeals also held that the quota order did not exceed
the district court's remedial authority under Title VII (id, at
28a-35a), rejecting our reading of this Court's decision in
Firefighters Lcoal Union No. 1784 v. Stotts, no. 82-206 (June 12,
1984), as prohibiting the award of any affirmative equitable relief
that benefits persons not found to have been actual victims of
discrimination.  While conceding that "a superficial reading of Stotts
supports (the government's) position" (App., infra, 31a), the court
viewed that case as "limited to its own facts and factually and
legally distinguishable from the one at bar" (ibid.).  Specifically,
it distinugished the instant case from Stotts on the grounds that here
(1) the challenged order does not require overriding a bona fide
seniority system;  (2) there were judicial findings of past
intentional discrimination against blacks, and the consent decrees
being enforced were intended to overcome that discrimination;  (3) the
case was brought primarily under the Fourteenth Amendement rather than
under Title VII;  and (4) the case involves the enforcement of a
voluntarily negotiated consent decree rather than the modification of
such a decree over the objection of one of the parties.

   Finally, the court of appeals held that the quota order does not
violate the Equal Protection Clause (App., infra 35a-42a), because of
"the long history of discrimination in the Department" (id. at 39a),
and because of "the fact that the relief now at issue was designed to
remedy the present effects of past discrimination" (id. at 40a) and
"is substantially related to the objective of eradicating (those
effects) and extends no further than necessary to accomplish (that)
objective" (id. at 41a).  The court of appeals agreed with the
district court that the promotion quota "is a temporary measure
designed only 'to eliminate a manifest and chronic radical imbalance'
caused by the Department's conduct" (ibid.), and noted that "the
district court's order does not require the discharge or demotion of a
white trooper or the replacement of a white trooper with a black
trooper," or the promotion of an unqualified black trooper (ibid.);
the court of appeals also reasoned that "white troopers are not barred
by (the district court's order) from advancement through the ranks"
(ibid.).

   This case presents questions of substantial and recurring
importance regarding the limitations upon the remedial authority of
the federal courts in litigation involving public employers brought
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et
seq., and the Fourteenth Amendement to the United States Constitution.
 At issue here is the validity under these provisions of a radical
preference accorded to individudals who have not been identified as
actual victims of racial discrimination at the expense of innocent
third parties.  Because this Court has agreed to hear several cases
raising these issues this term, we suggest that the petition for
certiorari be held pending disposition of those cases.  /4/

   1. This court recently discussed the limitations that Section
706(g) of Title VII, 42 U.S.C. 20003-5(g), imposes upon a court's
remedial authority in Firefighters Local Union No. 1784 v. Stotts, no.
82-206 (June 12, 1984).  This petition seeks review of one of a series
of recent lower court decisions upholding quota relief and giving the
Court's decision in Stotts what we regard as an overly narrow and
improper interpretation.  The Court has recently agreed to hear two of
those cases, Local No. 93, International Association of Firefighters
v. City of Cleveland, cert. granted, No. 84-1999 (Oct. 7, 1985), and
Local 28, Sheet Metal Workers' International Association v. EEOC,
cert. granted No. 84-1656 (Oct. 7, 1985).  Also pending before the
Court is a case challenging the validity of a similar racial
preference scheme under the Equal Protection Clause, Wygant v. Jackson
Board of Education, cert. granted, No. 84-1340 (Apr. 15, 1985).  The
views of the United States as to the validity of such racial
preferences under Title VII and under the Equal Protection Clause have
been expressed in a brief as amicus curaie supporting the petitioner
in Local 93 (at 6-30);  in a brief on behalf of the EEOC in Local 28
(at 23-39);  in a brief as amicus curiae supporting petitioners in
Wygant (at 6-30);  and in our petition for certiorari in Orr v.
Turner, No. 85-177 (filed July 31, 1985) (involving statutory and
constitutional challenges to a racially preferential consent judgment)
(at 12-25).

   The instant case presents questions similar to those raised in
Local 93, Local 28, and Wygant.  In Local 93, petitioner challenges a
racial preference incorporated in a Title VII consent judgment;  in
Local 28, another Title VII case, the racial preference was awarded by
the court;  and in Wygant, the racial preference under review is
incorporated in a collective bargaining agreement and is challenged
under the Fourteenth Amendment.  In this case, we seek review of a
racial preference imposed on nonconsenting parties as part of a court
order purporting to enforce earlier decrees entered by consent.

   The decisions in Local 93, Local 28, and Wygant are likely to
provide substantial clarification of the principles bearing on the
resolution of the second and third questions presented in this
petition, so that a remand after this Court has decided these cases is
likely to be merited.  Alternatively, this case itself may provide the
Court with an opportunity for further clarification of those
principles in the wake of its decisions in the three cases it has
already agreed to hear.  Accordingly, we suggest that the Court hold
this petition pending deposition of Local 93, Local 28, and Wygant.

   2. We do not repeat the discussion of the Title VII and
constitutional questions contained in our filings in Local 93, Local
28, Wygant, and Orr, /5/ and add only the following observations
pertaining to this case.

   a. As noted earlier, /6/ the court of appeals held the district
court's order to be within its authority under Title VII and attempted
to distinguish this case from Stotts on four grounds.  Regarding the
first "distinction," our briefs in Local 93 (at 17-18) and Local 28
(at 27) respond to the court of appeals' argument that Stotts does not
apply unless seniority rights are abridged.  Second, as we discuss in
our brief in Local 93 (at 19-27) and our petition in Orr (at 19-21),
Stotts cannot be distinguished on the basis that the race-conscious
relief is embodied in a consent decree.  /7/ Third, the fact that the
district court here, unlike the court in Stotts, predicated its order
on findings of past intentional discrimination is plainly beside the
point, as we discuss in our brief in Local 28 (at 29-30).  Section
706(g) broadly governs all relief entered in Title VII cases.  Nothing
in Title VII, in Stotts, or in any other decision of this Court even
remotely suggests that the remedial power of a Title VII court differs
depending upon whether the discrimination is intentional.  Finally,
the court of appeals' conclusion that the relief here was entered
pursuant to the Fourteenth Amendment, as well as Title VII, and that
this affords a basis for avoiding Stotts' victim-specific remedial
principle is both factually and legally unsound.  It seems apparent
that the 1979 and 1981 promotion consent decrees that were modified
(or enforced) here, unlike the intial 1972 quota order governing
hiring, were premised exclusively on Title VII.  /8/ In any event, the
court of appeals' distinction ignores the principle that equitable
remedies must be tailored to fit the scope of the constitutional
violation they are imposed to correct by "restor(ing) the victims of
discriminatory conduct to the position they would have occupied in the
absence of such conduct." Milliken v. Bradley, 418 U.S. 717, 746
(1974);

   b. The court of appeals here also found the district court's quota
order to be consistent with the Equal Protection Clause of the
Fourteenth Amendment.  Our views on why such orders violate the Equal
Protection Clause are stated in our amicus brief in Wygant (at 6-30).
Although the quota order challenged here represents the action of a
federal court rather than the voluntary action of a state or local
agency, as in Wygant, it nevertheless violated the Constitution's
equal protection guarantees.  As we argued in our brief on the merits
(at 35) in Local 28 in relation to a quota imposed in part as a civil
remedy for contempt by a defendant found quilty of intentional
discrimination;  a federal court is no less subject to these
constitutional constraints and protections of the rights of innocent
third parties.

                              CONCLUSION

   The petition for a writ of certiorari should be held pending the
Court's disposition of Local 93, Local 28, and Wygant.

   Respectfully submitted

   CHARLES FRIED

      Solicitor General

   WM. BRADFORD REYNOLDS

      Assistant Attorney General

   WALTER W. BARNETT

   MICHAEL CARVIN

      Attorneys

   December 1985

   /1/ The former Fifth Circuit explicitly limtited its approval of
the quota relief granted to the hiring context, "pretermit(ting) any
intimation of a position as to promotion practices" (493 F.2d at 622
n.12).

   /2/ On February 6, 1984, eight black and eight white troopers were
promoted to corporal pursuant to this order.

   /3/ The Department submitted such a schedule, and as of this date
has developed promotion procedures for corporals and sergeants.  Both
procedures have been approved for use on a temporary basis for a
limited number of promotions, and the one-black-for-one-white quota
has been temporarily suspended for purposes of those promotions.  The
district court's order approving the procedure for corporals was
appealed by McClellan, and was affirmed by the court of appeals along
with the quota order (App. infra, 45a-54a).  Pursuant to the temporary
promotion procedures approved by the district court, the Department
has promoted twelve troopers, of whom three (25%) is black, to
corporal and four troopers, of whom one (25%) is black, to sergeant.
This case is not moot, however, since no promotion procedures have
been approved for permanent use, and the one-black-for-one-white quota
remains in effect with respect to all other promotions.

   /4/ In our view, the quota order we challenge here constitutes a
modification of the earlier consent decrees in this case (see Question
Presented #1).  The court of appeals, however, concluded that this
quota order simply enforces the consent decrees rather than modifying
them (see page 7, supra).  That determination involves an incorrect
interpretation of the consent decrees, which prohibit only procedures
with an adverse impact and require the development of valid promotion
procedures in accord with the Uniform Guidelines on Employee Selection
Procedures.  Although it was contemplated by the earlier consent
decrees that specific numbers of blacks would be promoted, the
one-for-one quota was greatly different, in kind and degree.
Accordingly, the one-for-one quota is clearly a modification of the
prior decrees because it requires more of the Department than simply
avoiding such adverse impact.  Thus, the issue here, as in Stotts, is
whether a "disputed modification of a consent decree" (slip op. 13
n.9) may require racial quotas.

   In any event, the modification issue is inextricably interwoven
with the Title VII issue presented here because the court of appeals
purported to distinguish Stotts on the basis that the quota order
enforced, rather than modified, the earlier consent decrees.  Finally,
if there was no modification of the order, this case would present the
issue before this Court in Local 93, International Association of
Firefighters v. City of Cleveland, cert. granted, No. 84-1999 (Oct. 7,
1985), and the court of appeals' decision in erroneous for the reasons
we state in our amicus brief (pages 6-30) filed there.

   /5/ We have served copies of these filings on counsel for each of
the other parties to the proceedings below.

   /6/ See pages 7-8, supra.

   /7/ As discussed earlier (see note 4, supra), the one-to-one
promotion quota entered here was, in our view, "a disputed
modification of (the earlier) consent decree(s)" (Stotts, slip op. 13
n.9 (emphasis added) and thus is factually indistinguishable from
Stotts.  In any event, even if the quota order is deemed to enforce
the earlier consent decrees rather than modify them, the order is
nonconsensual because the decrees that were negotiated by the parties
did not include these promotion quotas and all parties except Paradise
objected to "enforcing" the decrees in this manner.

   /8/ See App., infra, 77a-78a (discussing only adverse impact and
the development of a valid "promotion procedure which is in conformity
with the 1978 Uniform Guidelines of Selection Procedures (sic), 43
Fed.Reg.38290 * * * ");  and App., infra, 68a-69a (same).

   APPENDIX