Appeal from so much of a judgment of the United States District Court for the Southern District of New York, Richard Owen, Judge, entered on remand following the invalidation of provisions of New York law denying preferential civil service credits to certain veterans, see Attorney General v. Soto-Lopez, 106 S. Ct. 2317 (1986), aff'g Soto-Lopez v. New York City Civil Service Commission, 755 F.2d 266 (2d Cir. 1985), as failed to grant permanent injunctive relief and backpay. Vacated in part and remanded.
Lumbard, Oakes, and Kearse, Circuit Judges.
This case returns to us from the district court following (1) a judgment of this Court ruling that portions of Article V, § 6, of the New York State Constitution and § 85 of the New York Civil Service Law were unconstitutional, (2) the affirmance of that judgment by the United States Supreme Court, see Soto-Lopez v. New York City Civil Service Commission, 755 F.2d 266 (1985) (" Soto-Lopez I "), aff'd sub nom. Attorney General v. Soto-Lopez, 476 U.S. 898, 106 S. Ct. 2317, 90 L. Ed. 2d 899 (1986), and (3) a January 5, 1987 judgment of the United States District Court for the Southern District of New York ("1987 Judgment"), Richard Owen, Judge, purporting to reflect the final adjudication of this action. In accordance with the Supreme Court's affirmance of Soto-Lopez I, the 1987 Judgment declared unconstitutional the portions of the above provisions of New York law that denied to veterans who were not residing in New York State when they entered the armed services the civil service eligibility bonus points that were given to veterans who were so residing; the 1987 Judgment ordered that plaintiffs Eduardo Soto-Lopez and Eliezer Baez-Hernandez be granted veterans' preference points if they are qualified to receive them and be given appointments with retroactive seniority if they meet other requirements for appointment.
Plaintiffs appeal from so much of the 1987 Judgment as (1) denied permanent injunctive relief, contending principally that that denial did not comply with the mandate of this Court in Soto-Lopez I, and (2) denied them backpay. Defendants New York City Civil Service Commission, et al. (collectively the "City defendants"), urge us either (a) to affirm the denial of injunctive relief principally on the ground that such relief is unnecessary because they have been complying with the mandate of Soto-Lopez I since March 1985, approximately one month after that decision was rendered, or (b) to rule that any permanent injunction should not bar their use of current eligibility lists compiled prior to March 1985 in reliance on the unconstitutional provisions. They urge us to affirm the denial of backpay both on the ground of immunity because, in denying veterans' preference points to plaintiffs, the City defendants had merely followed the then-presumptively valid provisions of state law, and on the ground that plaintiffs have not demonstrated their individual eligibility for the positions to which they sought appointment.
On its face, the 1987 Judgment does not comply with the mandate of this Court in Soto-Lopez I. Accordingly, we vacate the judgment in part and remand for further proceedings leading to the entry of permanent injunctive relief against the City defendants and to the final adjudication of plaintiffs' claims.
A. The Invalidation of the Past-Residency Requirements
The background of the present litigation is set forth in detail in Soto-Lopez I, 755 F.2d 266, and will be but briefly summarized here. The state-law provisions at issue granted bonus points to otherwise qualified civil service position applicants who were veterans of the United States armed services, but only if they were residents of New York when they were inducted into the armed services ("past-residency requirements"). N.Y Const. art. V, § 6; N.Y Civ. Serv. Law § 85 (McKinney 1983). Plaintiffs, veterans who had applied for positions covered by civil service, were denied veterans' bonus points on their civil service examinations because they had not been residing in New York when they entered the armed services. They commenced the present action (1) to have the past-residency requirements declared unconstitutional, (2) to enjoin the enforcement of those provisions against otherwise qualified veterans, and (3) to compel the City defendants to award plaintiffs veterans' preference points, adjust their standing on job eligibility lists, and appoint them to positions for which they had applied, with seniority and backpay.
The district court dismissed the complaint on the ground that the residency-at-time-of-induction distinction had been upheld against constitutional challenge in August v. Bronstein, 369 F. Supp. 190 (S.D.N.Y.) (three-judge court), aff'd mem., 417 U.S. 901, 94 S. Ct. 2596, 41 L. Ed. 2d 208 (1974). In Soto-Lopez I, this Court reversed, ruling that August v. Bronstein had been implicitly overruled by Zobel v. Williams, 457 U.S. 55, 72 L. Ed. 2d 672, 102 S. Ct. 2309 (1982), and that the residency distinction violated plaintiffs' constitutional right to equal protection and right to travel. We remanded to the district court (1) for entry of a judgment permanently enjoining defendants from denying veterans' bonus points to "otherwise qualifying veterans solely on the ground that they were not New York residents at the time of their induction into the United States armed forces," 755 F.2d at 282, and (2) for further proceedings to determine any issues relating to plaintiffs' requests for individual relief, including "whether either plaintiff should receive immediate appointment, if so to what position, and whether awards of backpay or retroactive seniority are appropriate, as well as issues relating to defendants' defenses of immunity," id. at 281; see id. at 281-82.
The State of New York ("State"), which had intervened in the action to defend the constitutionality of the challenged constitutional and statutory provisions, appealed Soto-Lopez I to the Supreme Court. In July 1985, the district court entered an order that, inter alia, "permanently enjoined" the City defendants from enforcing the residency-at-time-of-induction requirements "pending the outcome of the [State's] appeal." In June 1986, the Supreme Court affirmed our judgment that the past-residency requirements were unconstitutional. 476 U.S. 898, 106 S. Ct. 2317, 90 L. Ed. 2d 899.
Following the decision of the Supreme Court, the district court entered the 1987 Judgment, which contains no injunction against enforcement of the past-residency requirements. That Judgment, after declaring the pertinent New York provisions unconstitutional "in accordance with the opinion of the United States Supreme Court," provides as follows:
1. Defendants New York City Civil Service Commission, New York City Department of Personnel, Mark Lebow, and Juan Ortiz ("City, defendants" [ sic ]) shall award plaintiffs veterans credits pursuant to section 85 of the Civil Service Law if plaintiffs meet the requirements of section 85 Law [ sic ] other than the requirement that they ...