Opinion · Court of Appeals for the D.C. Circuit
Hammon v. Barry
Hammon v. Barry, 841 F.2d 426 (Court of Appeals for the D.C. Circuit 1988)
- Type
- Opinion
- Court
- Court of Appeals for the D.C. Circuit
- Jurisdiction
- Federal
- Date
- 1988-03-18
- Topic
- general
MIKVA, Circuit Judge, dissenting: This court today revokes its earlier decision to rehear this case en banc. The court has already labored for so many pages in the prior two opinions in this case, see Hammon v. Barry, 813 F.2d 412 (35 pages), petition for rehearing denied, 826 F.2d 73 (D.C.Cir.1987) (20 pages), that we are reluctant to further burden bench and bar by criticizing the ill-suited directions taken by the panel majority. However, this case concerns one of the fundamental dilemmas our society faces: how to eliminate a “ ‘manifest imbalance’ that reflected underrepresentation” of women and minorities in the work force. Johnson v.
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- Authority status
- pending
This court today revokes its earlier decision to rehear this case en banc. The court has already labored for so many pages in the prior two opinions in this case, see Hammon v. Barry, 813 F.2d 412 (35 pages), petition for rehearing denied, 826 F.2d 73 (D.C.Cir.1987) (20 pages), that we are reluctant to further burden bench and bar by criticizing the ill-suited directions taken by the panel majority.
However, this case concerns one of the fundamental dilemmas our society faces: how to eliminate a “ ‘manifest imbalance’ that reflected underrepresentation” of women and minorities in the work force. Johnson v. Transportation Agency, Santa Clara County, California, 480 U.S. 616, 107 S.Ct. 1442, 1452, 94 L.Ed.2d 615 (1987). As the Supreme Court and our sister courts have worked their way through the difficult problems faced by employers in achieving this goal, the Supreme Court has emphasized the indispensable contribution of voluntary employer action in eliminating the vestiges of discrimination in the workplace. See Steelworkers v. Weber, 443 U.S. 193, 204, 99 S.Ct. 2721, 2727, 61 L.Ed. 2d 480 (1979).
Notwithstanding this clear expression of favor, the panel majority in this case has struck down the city of Washington’s voluntary efforts to remove the vestiges of discrimination in the local Fire Department. It is hard to recall an instance where leading precedents of the Supreme Court have been given shorter shrift by this court. The panel majority complained that the Supreme Court in Johnson did not speak plainly enough as to what it meant by “manifest imbalance.” We think the direction of the Court in Johnson and elsewhere is manifestly clear and regret our inability to persuade our colleagues of this reading. As the appellate process in this case further unfolds, we trust that all the members of this court will come to share a common reading. The question presented in this case is too important to leave in its present unsatisfactory state in this circuit or elsewhere.