House of Representatives Committee on the Judiciary
Subcommittee on the Constitution

Subcommittee Overight Hearing of the Department of Justice Civil Rights Division
May 19, 1997

Testimony of Wayne S. Flick
Latham and Watkins

INTRODUCTION

Mr. Chairman and Members of the Subcommittee:

Good afternoon. My name is Wayne Flick, and I am an attorney with the law firm of Latham & Watkins in Los Angeles. For the last four years, I and four other attorneys in my firm have had the privilege to represent the city of Torrance, California and its Police and Fire Departments in an action brought by the Civil Rights Division of the United States Justice Department. The case was brought in July 1993 pursuant to Section 707 of Title VII of the Civil Rights Act of 1964, 42 U.S.C.  2000e-6. The principal claim purported to challenge as unlawful written examinations used by the City since at least 1981 to select entry-level police officers and firefighters. I say "purported to challenge" because there never was any credible evidence, either before or during the litigation or at trial, that the challenged examinations are inconsistent with federal law. These examinations, professionally developed and validated over the course of several decades, measure job applicants' reading, writing and reasoning ability -- skills which both common sense and the Supreme Court tell us are essential to the jobs at issue -- at approximately the eleventh grade level. (In the case of the challenged firefighter examinations, some quantitative skills are measured as well.)

After more than five years of pre-litigation investigation and discovery throughout the lawsuit, at substantial taxpayer cost, the Justice Department had virtually no response to the City's substantial business justification for the challenged examinations, nor the City's avalanche of evidence of their job-relatedness and validity. In fact, the Court so held. Moreover, as was apparent from the Justice Department's evasive behavior throughout the case, and as it was forced to concede at trial, there are no viable alternatives which would efficiently and effectively satisfy the City's (or other similarly situated employers') legitimate hiring objectives while reducing the alleged adverse impact of the challenged examinations.

The Government was neither distracted nor deterred by the lack of evidence to support its challenge to these examinations. Rather, it was content to pursue the case in the absence of a factual or legal foundation and, instead, to focus on using the litigation process itself to achieve its desired result. Mindful that, at some point, any defendant in a costly lawsuit might simply throw up its hands merely to avoid the financial burden of continuing to defend itself, the Justice Department conducted some of the most inexplicable discovery I have seen conducted by any plaintiff, to say nothing of a plaintiff bearing the name of the sovereign.

Unfortunately, even the Congressional Record lacks sufficient space to detail all of the troubling conduct of attorneys for the Civil Rights Division. Suffice it to say, however, that the discovery process was tortured and perverted so badly in this case that, by the time the Government was finished, the people of Torrance had spent nearly two million dollars responding to discovery alone, almost all of it entirely useless. And this takes no account of what the United States itself spent in conducting this discovery. To appreciate fully the magnitude of this waste, the joint costs of discovery could have paid the salaries and benefits of approximately 25 additional entry-level police officers in Torrance for four full years.

In my view, United States v. City of Torrance represents an abuse of the Civil Rights Division's prosecutorial authority. It was an indefensible exercise of federal power and use of substantial federal resources for the singular purpose of coercing a municipality to abandon merit as a selection criterion in its public safety agencies, and effectively to adopt what amount to racial preferences. My remarks today will focus on the burdensome litigation the Government threatened and delivered, the baselessness of the Government's claim, the economic and other hardship the lawsuit imposed on the City, and what the Court ultimately concluded based on the evidence the Government presented at trial. I cannot emphasize strongly enough my belief that this case stands as a stark example of how our federal government should not be permitted to conduct itself. Although I do not wish unnecessarily to personalize my remarks, or to point an accusatory finger to particular attorneys, it is difficult to separate the persons involved from the entity they represent. Indeed, throughout the litigation, some of the attorneys representing the United States appeared to hide behind their "client" to avoid taking personal responsibility for their actions. Although many of them have since left the Justice Department, several remain. Those few continue to use the same tactics, the same economic threat inherent in their enforcement authority, and the same level of what seem to be limitless resources in pursuit of a singular goal: to force municipal public safety agencies to hire candidates based on race or ethnicity rather than on objective qualifications.

Sadly, Torrance is not the only municipality that has endured this pattern of coercion and intimidation by the Civil Rights Division. In Southern California alone, El Monte, Alhambra and Pomona have all entered into consent decrees since 1992, in large part because, whatever the supposed merits of the Justice Department's allegations, they did not have the resources or the resolve to wage a lengthy and enormously costly battle with the federal government. The Civil Rights Division is keenly aware of the advantage inherent in its special position, and uses that advantage to achieve through litigation -- or the mere threat of litigation -- what neither it nor Congress could constitutionally achieve through legislation. Few cities, small or large, can afford to devote their scarce and much-needed resources to defend against claims like the one made in the Torrance case, which was found specifically to be without any legal or factual merit. Ironically, the experience of Torrance itself, although an unqualified defeat for the Civil Rights Division, may alone be sufficient to deter other municipalities from defending themselves against the Justice Department's efforts to enforce ideologically appropriate levels of diversity. The potential detriment to these municipalities' public safety agencies, and the citizens they serve, cannot be understated.

Lest there be any doubt whatsoever about the merits of the Justice Department's claim in this case, I refer to the district court's opinion on that subject:

[T]he United States has failed to carry its burden. In response to a very weak prima facie showing made by the United States, the defendants have made a strong showing of justification for the use of the written examinations. Moreover, they have not only established that the written examinations and the manner in which they have been used serve the legitimate goals of the City, but also that the tests as used are job-related and consistent with business necessity. Defendants have affirmatively shown that the tests are essential to job efficiency and that there is a correlation between the tests as used and success on the job. The United States has wholly failed to disprove the defendants' case. It has not shown that other tests or selection devices, without a similarly undesirable racial effect, would also serve the City's legitimate interests. The United States has made no case at all on alternatives which the City could or should have used and which would have resulted in a reduced adverse impact.

In short, after extraordinary expense in both actual dollars and human capital, the Government presented no credible evidence whatsoever to support allegations it has now pursued for a total of more than six years. To make matters worse, it continues to pursue them with what we believe is a frivolous appeal.

If this is the manner in which attorneys for the United States are to be permitted to perform their prosecutorial function, then it is no wonder why Justice Department efforts are so often met with skepticism, cynicism and outright mistrust. While I doubt that the extreme and, in my view, unethical conduct of the attorneys in this case is typical of the conduct of all Justice Department attorneys, or even all those in the Civil Rights Division, I fear on the other hand that there existed under Assistant Attorney General Deval Patrick, and still exists a permissive atmosphere, an excess of available resources and a lack of safeguards that allows or even encourages individual attorneys to wage lengthy, costly battles not over violations of law, but over mere ideological differences. Perhaps more than any other of which I am aware, this case serves as compelling evidence that Title VII is being used by the Justice Department in ways that its drafters surely never intended, and that I would hope and expect this Subcommittee would not knowingly tolerate.

The command of Title VII -- indeed, the promise of Title VII -- is equality of opportunity. The statue has served that objective well for more than three decades, under seven different administrations. To permit its use as a mere instrument of economic warfare between the well-funded federal government and municipalities most of which are powerless to do little but acquiesce, is to do violence to an indispensable component of our national commitment to equality and to trivialize its otherwise proud history of ridding the national workplace of invidious discrimination. This Subcommittee and this Congress owe the people of the United States more.

II. FACTUAL BACKGROUND

A. The City of Torrance and its Historical Recruiting Efforts

Torrance, California is a business and residential community in the "South Bay" area of southwestern Los Angeles County. In 1990, the City's population of approximately 133,000 was comprised of 73% whites, 21.9% Asian-Pacific Islanders, 10.1% Hispanics, 1.5% blacks and 0.4% Native Americans; 3.3% were of other races or national origins. In 1980, these figures were: 83.9% whites, 10.5% Asian-Pacific Islanders, 8.3% Hispanic, 0.7% black, 0.5% Native American and 4.4% other. A study commissioned by the Torrance City Council projected that the City will be approximately 50-60% Asian by the end of the next decade.

The Torrance Civil Service Administrator is responsible for, among other things, the recruitment of applicants and administration of portions of the selection process for the positions of police officer and firefighter in Torrance, with the assistance of the Police and Fire Departments, respectively. The Civil Service Administrator has the ultimate responsibility to select the written examinations administered to select police officers and firefighters. After obtaining review copies and any validation documentation from the publishers of any written examinations under consideration for administration (often between two and four tests), the Civil Service Administrator typically consults with other municipalities that may have used one or more of the examinations in an effort to select the examination(s) that best suit the City's needs with the least adverse impact upon minority candidates.

Notwithstanding its reliance on the community proper for applicants, Torrance has long endeavored affirmatively to attract minority candidates. The Civil Service Administrator has made consistent efforts to recruit qualified minority applicants by sending mailings to minority organizations and colleges, and by extensive advertising in newspapers that specifically target minority communities, including, but not limited to, the Chinese Daily News, Compton Daily Bulletin, La Opinion, and Wave newspapers. In fact, in an effort to increase minority representation among applicants for police officer and firefighter jobs, the Civil Service Administrator often has not advertised in The Daily Breeze, the primary South Bay newspaper, which reaches a largely white community.

Between 1981 and 1994, the period relevant to the lawsuit, the City's recruitment efforts succeeded in attracting substantial numbers of applicants for relatively few entry-level police officer and firefighter openings. Moreover, as the Court ultimately found, this applicant flow had a richer representation of blacks and Hispanics than would have been expected given the representation of blacks and Hispanics in the population that the Torrance Police and Fire Departments serve. Indeed, relative to black availability in the Torrance PUMA (Public User Microsample Area), blacks were excessively represented among passers of written police officer exams by more than 18 standard deviations. Relative to the availability of Hispanics in the Torrance PUMA, Hispanics were excessively represented among passers of the same written exams by more than 8 standard deviations. When the City's labor market area is defined as Torrance and its five proximate PUMAs, black and Hispanic representation among passers of these police officer exams still is excessive -- measuring 3.47 and 4.63 standard deviations, respectively.

Each year in which the City has conducted recruiting for police officer or firefighter positions, it has been faced with the challenge of selecting from among a substantial pool of candidates for a small number of openings. Turnover in both departments has historically been low and, as the Court concluded, an applicant's chance of being hired even after passing a written examination is extremely low -- approximately 5%. Only 66 persons were hired as entry-level police officers from the written police exams administered between January 1986 and July 1992. There were 2,350 applicants competing for these 66 positions, thereby giving each applicant a probability of being hired that is less than three chances in 100. There were 1,122 persons who passed the written exam; even their probability of being hired was less than six chances in 100. Expressed in other words, while passing the written exam increased an applicant's probability of being hired by three percentage points, his/her hiring odds were still slim -- amounting to one in 18 to 20.

The probability of being hired as a firefighter was even lower. Between 1981 and 1994, Torrance hired 79 firefighters. There were 3,193 applicants and 1,666 written exam passers. Each applicant had approximately 2.5 chances in 100 of being hired; and each written exam passer has 4.7 chances in 100 of being hired. While passing the written exam almost doubled an applicant's probability of being hired, it still was slim -- less than one in 20.

One consequence of the low probability of being hired, even when an applicant passed the written exam for police officer or firefighter, is that the Government's allegation that blacks, Hispanics and Asians had lower passing rates than whites on the challenged examinations has almost no practical consequence. Given the actual probability of any written exam passer being hired, had there been no difference in the pass rates of whites as compared with blacks, Hispanics and Asians, the Court concluded that only one more black applicant, less than one more Hispanic applicant and no more Asian applicants would have been hired as police officers between 1986 and 1992. Likewise, two more Hispanic applicants and no more black or Asian applicants would have been hired as firefighters from between 1981 and 1989.

Allan Parachini, Public Affairs Director of the American Civil Liberties Union of Southern California, testified at trial concerning a 1994 ACLU report which analyzed the composition by race and gender of 107 police departments and 80 fire departments in Southern California. Mr. Parachini testified that the ACLU believes a public safety agency should reflect the race and gender composition of the city it serves, that "in terms of achieving and maintaining the confidence of a particular local community, [] a public safety agency can best do that if it reflects that community." The ACLU found the "integration" of Southern California's police and fire agencies to be generally poor, but noted that Torrance and three neighboring cities in the South Bay area (Manhattan, Hermosa and Redondo Beaches) had demonstrated progress toward integration of their police departments in comparison with other agencies studied.

In reaching these conclusions, the ACLU used a statistical method known as the "EEO index," which compares the proportion of racial groups in a given city to the proportion of those groups in the agency being evaluated. Thus, if a municipality had a 10 percent African-American population, and the city's police department was only 5 percent African-American, the EEO index for African-Americans in the police department would be 0.5. This would indicate that the police department had half the representation of African-Americans as was present in the city. According to the ACLU, an EEO index of .75 indicates an "acceptable" level of integration, while an EEO index over 1.0 may indicate "over-representation." Mr. Parachini testified that the Justice Department itself uses the EEO index (also referred to as the "Walker index" after its creator, Professor Sam Walker) in its annual publication, The Source Book. For the past several years, the Justice Department has published the EEO indexes for African-Americans and Hispanics in 65 of the largest cities in the United States. The ACLU found, for example, that the Torrance Police Department had an EEO index for African-Americans of 2.73, indicating that African-Americans were substantially over-represented in that department.

B. The City's Selection Processes

In order to hire the most qualified individuals from among its many applicants for police officer and firefighter, the City invests substantial time and resources in its selection processes. In an effort to avoid candidates' overexposure to particular selection devices, and to minimize disparate performance between racial groups while keeping within its budgetary constraints, the City has changed its selection processes from time to time, including varying the written examinations it has administered. Both monetary and human capital costs of the process are high; in addition to the cost of leasing written examinations, some of which are accompanied by validation studies from independent test developers, and retaining the services of physicians, psychologists, and polygraph examiners for the background investigation, considerable overtime hours are required of the individuals who serve on the oral interview panels, and who participate in the administration of the physical agility tests and background investigations.

1. Police

Every peace officer in California must meet the minimum standards enumerated in California Government Code sections 1029-1031. Torrance participates in the California Commission on Peace Officer Standards and Training ("POST"), as do most police agencies in California. POST sets the following minimum selection standards for peace officers, largely reflective of the Government Code provisions, which are enumerated in POST Regulation 1002, codified in Title 11, Div. 2, California Code of Regulations:

1002. Minimum Standards for Employment.

(a) Every peace officer employed by a department shall be selected in conformance with the following requirements:

(1) Felony Conviction. Government Code section 1029: Limits employment of convicted felons.

(2) Fingerprint and Record Check. Government Code sections 1030 and 1031(c): Requires fingerprinting and search of local, state, and national files to reveal any criminal records.

(3) Citizenship. Government Code sections 1031(a) and 1031.5: Specifies citizenship requirements for peace officers.

(4) Age. Government Code section 1031(b): Requires minimum age of 18 years for peace officer employment.

(5) Moral Character. Government Code section 1031(d): Requires good moral character as determined by a thorough background investigation.

(6) Education. Government Code section 1031(e): Requires high school graduation, passage of the General Education Development Test (GED) or attainment of a two-year or four-year degree from an accredited college or university.

(7) Physical and Psychological Suitability Examinations. Government Code section 1031(f): Requires an examination of physical, emotional, and mental conditions.

(8) Interview. Be personally interviewed prior to employment by the department head or a representative(s) to determine the person's suitability for police service, which includes, but is not limited to, the person's appearance, personality, maturity, temperament, background, and ability to communicate. This regulation may be satisfied by an employee of the department participating as a member of the person's oral interview panel.

(9) Reading and Writing Ability. Be able to read and write at the levels necessary to perform the job of a peace officer as determined by the use of the POST Entry-Level Law Enforcement Test Battery or other job-related tests of reading and writing ability.

At the time of application, candidates are screened to determine, if possible from the information provided, whether these initial prerequisites are met. Those whose applications do not contain obvious disqualifying factors are permitted to sit for the written examination, which measures skills such as reading comprehension and written communication (a state law requirement), as well as memory and reasoning.

The Civil Service Administrator sets the raw score pass point for the written, entry-level examinations, based on professional analysis and recommendations provided by the test developers. During the period relevant to the lawsuit, applicants who obtained a passing score on the written examination were invited to an oral interview conducted by a panel of two police officers and one sergeant, who posed situational questions designed to ascertain the candidates' potential for dealing with problems likely to be encountered on the job. The oral interviews were also scored.

Based upon their combined written examination and oral interview scores (with 50% weight assigned to each), candidates were then placed in rank order on an eligibility list for further processing. Depending upon the size of a particular eligibility list and the Department's projections regarding future openings, the City processed candidates in groups of 10 to 20. All candidates were required successfully to complete a physical agility test, medical and psychological examinations, a polygraph test and a background investigation, which was conducted in part based on the information the candidate provided in a 10- to 12-page detailed questionnaire concerning past residences, jobs and other personal information. The background investigation also entails a fingerprint check and a credit check. Candidates who clear all of these screening devices remain on the eligibility list, from which new employees are hired as openings occur. Lateral applicants (i.e., those who were continuously employed by another California law enforcement agency for the one year immediately preceding their application to Torrance), are not required to take a written examination. The lateral selection process is otherwise identical to the post-examination selection process for entry-level police applicants.

III. THE JUSTICE DEPARTMENT'S CHALLENGE

In May 1991, the Civil Rights Division initiated an investigation into the hiring and employment practices of the Torrance Police and Fire Departments. That investigation lasted 18 months, and focused almost exclusively on the Government's allegation that the City had violated Title VII of the Civil Rights Act of 1964, as amended, by using written examinations to select entry-level police officers and firefighters that had an unlawful adverse impact on blacks, Hispanics and Asians. Despite repeated requests from the City that the United States identify viable alternatives to the written examinations, Justice Department attorneys responded simply that "We're not here to give advice." In fact, throughout the entire investigation, the Government refused to identify a single alternative to the challenged examinations, leaving no reasonable conclusion other than this: the Government's singular goal was to force the City to abandon its practice of measuring applicants' reading and writing skills altogether, in favor of some other, non-merit-based criterion.

Following the investigation, during which it gathered substantial information about the City's employment practices and procedures, the United States issued a Notice Letter advising the City that it had reasonable cause to believe that the City had engaged in a pattern or practice of discrimination in violation of 42 U.S.C.  2000e-6, and "invited" the City to enter into a consent decree. Among other things, that consent decree would have required the City to abandon the use of the written examinations and to set up a fund of several million dollars to compensate alleged discrimination victims, including individuals who never even applied to work for the City.

Subsequent conciliation efforts failed and, in July 1993, the United States filed a boiler-plate complaint making nothing more than vague allegations in conclusory fashion without factual support of any kind. Despite the Government's 18-month investigation into the City's hiring practices, its Complaint was virtually identical to those it had earlier filed against the cities of Alhambra, El Monte and Pomona, California. It did not contain any factual allegations specific to Torrance, and in no way reflected the substantial investigation it had conducted. (See Exhibit A.) To underscore the punitive nature of the lawsuit, the Government's lead attorney telephoned Torrance City Attorney John Fellows on the eve of filing the original complaint, advising him that in return for the City's refusal to accept the proposed consent decree, the United States had decided to double the period during which it would seek to establish liability. (Pursuant to the statute itself, the Attorney General has no statute of limitations in cases brought under Section 707.) During discussions concerning the proposed consent decree, this attorney, Philip K. Eure, had responded to a City request that the Justice Department explain how it had calculated the City's alleged monetary liability by stating that the Civil Rights Division was attempting to accomplish "rough justice."

The case was assigned to United States District Judge Mariana R. Pfaelzer in the Central District of California, who granted the City's request that the United States be compelled to articulate with a greater degree of particularity the specific nature and scope of its allegations. As it stood, the original complaint was to vague to indicate what, if any, violations of law were being alleged. The Court agreed, noting in open court that she grants fewer than one-half of one percent of all such motions. This was an exceptional case warranting that action. Despite the Court's specific instructions, the Amended Complaint did almost nothing to clarify the Justice Department's allegations. Indeed, nearly eight months expired between the commencement of the lawsuit and the identification by the Justice Department of a single examination that was the subject of its challenge. With that, the games began.

What followed were three years of aimless, pointless and often incomprehensible discovery efforts, punctuated with repeated assertions by attorneys for the United States that they were pursuing a coherent theory of discrimination in good faith. As is chronicled below, however, the extraordinarily expensive and burdensome discovery in which the Justice Department engaged the City was conducted for no apparent purpose other than to coerce the City to acquiesce in the Government's command that the City adopt hiring preferences. Moreover, the United States' assertions regarding its good faith pursuit of its adverse impact allegation were ultimately called into serious question. At trial, the Government's presentation was as sloppy and disorganized as it was utterly disingenuous. Until the final day of trial, Justice Department attorneys assured the Court that they intended to present evidence of suitable alternatives to the challenged examinations -- examinations, incidentally, whose use they had specifically blessed under consent decrees in neighboring jurisdictions. No such evidence was ever presented, however, and the Court so held.

A. The Adverse Impact Claim

Although no mention was made in the Amended Complaint to any specific selection device, the Government ultimately revealed that its adverse impact challenge was directed at 12 different written examinations used to select entry-level police officers and firefighters from 1981 to 1994. In substance, the Justice Department alleged that, although neutral on their face, these garden-variety tests of reading and writing ability were unlawful because they had a disproportionate exclusionary effect (i.e., an adverse impact) on blacks, Hispanic and Asian test-takers. It is important to keep in mind that Title VII does not outlaw adverse impact per se; it proscribes the use of selection devices or practices that have an adverse impact and which cannot be justified by the articulation of a legitimate business objective. In this case, that legitimate business justification was never seriously in doubt, and never seriously challenged: police officers and firefighters need to possess basic reading, writing and reasoning skills, and the most efficient, cost-effective way for a municipal employer such as Torrance to ensure that applicants possess such skills is to administer standardized tests as part of the selection process.

As the course of the litigation eventually made clear, it was not the examinations themselves that prompted the Torrance litigation; it was the Justice Department's mere dissatisfaction with the racial composition of the City's police and fire departments. Whether or not the City discriminated, intentionally or otherwise, was quite beside the point. The Justice Department used Title VII and the federal court to seek to "correct" what it regarded as an unacceptably low bottom line. The following excerpt from the trial transcript makes the Government's objective apparent:

THE COURT: You look at the numbers, and if the numbers are agreeable, whatever they did to get to those numbers is all right; isn't that right? . . . If they had good numbers, you wouldn't even look at the way they selected.

MR. EURE: That's how Title VII operates.

THE COURT: I'm not quarreling with Title VII. I'm asking you what you specifically did.

MR. EURE: As an enforcement agency, that would be our modus operandi.

THE COURT: Listen to me. I'm not loading the question. I'm saying to you that you reason backwards, don't you? You look to see what the numbers are and if the numbers look to you as if they are improving over the years and they are presently at a rate that you think is right, you are not going to bother about their selection procedures, are you?

MR. EURE: If individuals -- Yes, your honor.

In other words, its ethical obligations notwithstanding, the Civil Rights Division would have filed this lawsuit no matter what selection procedures the City had been using. It was not the selection procedures that the Government found unacceptable, it was the failure of merit-based selection to produce racially desirable results.

B. The Government's Evasive Discovery Responses

At the parties' December 1993 Early Meeting of Counsel (at which, pursuant to local court rules, parties are required to disclose certain evidence relating to their allegations and defenses), the United States refused to identify any of the specific selection devices that were the subject of its adverse impact claim. The Government took the position that such details could be addressed during the course of discovery. "Addressed" apparently meant "obfuscated."

On February 25, 1994, the Government served its responses to the City's first request for production of documents. Those requests, among other things, sought "all documents which evidence, refer to, relate to or concern" the pertinent allegations in the United States' complaint. The Government's response to the first 19 such requests was identical:

The United States objects to this request on the ground that it seeks materials that are protected from disclosure by the attorney work product doctrine. Without waiving this objection, the United States agrees to produce all non-privileged documents responsive to this request.

These non-privileged documents (consisting of about one file box) related almost entirely to the proposed consent decree the Government offered Torrance shortly after it concluded its pre-litigation investigation. Not one document produced identified a single selection procedure or device that was the apparent target of the Government's allegations. In addition, the Justice Department objected to some requests on the ground that "some of the materials sought are internal documents which form the basis of the reasonable cause determination made pursuant to Section 707(a) of Title VII . . . and, therefore, are not subject to discovery."

On April 15, 1994, the City served a notice of deposition on the United States pursuant to Federal Rule of Civil Procedure 30(b)(6), seeking a knowledgeable, designated representative to testify regarding (among other things):

(1) the relevant labor market;

(2) the specific ways the City was alleged to have violated Title VII;

(3) the particular selection devices that the United States contended disproportionately exclude minorities; and

(4) any specific alternative selection devices that the United States contended should have been used.

In response, the Government refused to produce any witnesses for deposition, on the ground that no persons existed (other than the Justice Department attorneys themselves) who could testify as to those issues. It stated, however, that the information sought could be obtained through written interrogatories. Torrance had already sought -- and had been denied -- this very information through interrogatories, however. "Obtained" apparently meant "withheld."

The City's Interrogatory No. 2 (consistent with the Government's own suggestion) requested that the United States "state the particular selection devices and selection procedures . . . which you contend have disproportionately excluded blacks, Hispanics and Asians from employment," including the dates any such devices were used. When the Justice Department finally responded, at long last, it identified two such tests:

1. the Cooperative Personnel Services ("CPS") Entry Level Law Enforcement Test Number 1020 ("and all written examinations derived therefrom"); and

2. the CPS Entry Firefighter Test Number 2149 ("and all other written examinations derived therefrom").

Other than those two examinations (and the unidentified derivative "others"), the Government stated that "[a]t the present time, the United States cannot identify all other selection devices and selection procedures used by Torrance" that have had an adverse impact on minorities. Thus, taking the Justice Department at its word, as of February 1994, it had no evidence that any other examinations used by Torrance produced an unlawful adverse impact. This did not deter the Government from seeking to challenge every single police officer and firefighter examination used in Torrance from 1981 forward.

The City's Interrogatory No. 3 asked whether the United States contended that the two selection devices it identified were not job-related, and if so, to explain its reasons therefor. The United States' verified response was as follows:

(1) the information was protected by the attorney work-product doctrine;

(2) it could not respond because the City had not yet furnished sufficient information in its discovery responses; and

(3) it could not respond because it had not yet retained an expert.

Again, taking the Justice Department at its word, it had no basis in February 1994 for alleging that any of the examinations used by Defendants were not job-related. It simply hoped such evidence would turn up.

Finally, Defendants' Interrogatory No. 4 asked the United States to identify "what alternative selection device or selection procedure you contend should have been used by Torrance consistent with business necessity." This led to perhaps the most galling aspect of the United States' evasive approach to the City's discovery efforts. The Government responded as follows:

The United States contends that Torrance should have used alternative selection procedures or selection devices for entry-level [police officer and firefighter] which are job-related and consistent with business necessity in accordance with Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.  2000e, et seq., and the Uniform Guidelines on Employee Selection Procedures, 29 C.F.R.  1602 et seq.

C. The United States' Own Discovery Requests

At the same time that it steadfastly refused to set forth the bases for its adverse impact claim, the Government sought to expand its case even further. For example, during the third session of the ten-session deposition of the City's Civil Service Administrator, the United States asked numerous questions relating to sex discrimination, notwithstanding the fact that alleged sex discrimination had never been raised during the United States' pre-litigation investigation, and appeared nowhere in the First Amended Complaint. The following colloquy aptly demonstrates both the City's frustration and the Justice Department's arrogance:

Q. [By counsel for the City] Counsel, could you explain to me why you care? Your Complaint makes no reference whatsoever to sex discrimination. There has been no issue raised in this litigation concerning discrimination against applicants or existing employees based on sex. . . .

A. [By Justice Department attorney Elizabeth Hack] I believe that we are entitled to this material, and if it's material that can lead to other discoverable material, we are allowed to ask these questions . . . There is nothing to stop us from amending our Complaint if we find that there has been a failure to recruit, and we are allowed to delve into these areas.

Rather than using the discovery process to develop evidence to support a coherent theory, the Government used the discovery process to find a theory. When pressed to justify its overly broad demands, the Government's consistent response was that "the United States is entitled" to the information. In other words, the Justice Department believed it was proper to impose any burden on Torrance -- no matter how costly or how useless the discovery to its case -- with no more justification than "because we can." Neither Rule 11 nor the Civil Rights Act permits the discovery process to be used in such a fashion.

The United States' most flagrant abuse of the discovery process was undoubtedly the depositions of the so-called "Subject Matter Experts" (or "SMEs"), incumbent police officers and firefighters who had participated in the job evaluations that supported the professional validation of some of the challenged examinations. The United States deposed 17 SMEs (and sought to depose 20 more) for three to five hours each. The general subjects of these depositions were as follows:

1) "When I say common sense, what does that mean to you?" (Deposition of Police Officer Stephen D'Anjou.)

2) "Do you think that the ability to deal with people in tense situations is an important skill?" (Deposition of Police Officer Thomas Stark.)

3) "Do you believe it's important for a police officer to -- in order to perform well in a position in Torrance, to appear confident?" (Deposition of Officer Devin Chase.)

4) "Is it important to be a good listener?" (Deposition of Police Officer Stephen D'Anjou.)

5) "Do you need to give oxygen to people as part of your job as a firefighter?" (Deposition of Firefighter Dennis Hansen.)

6) "Do you think that you had common sense before you became a police officer in Torrance?" (Deposition of Officer Kevin Kreager.)

7) "Would you describe that as a difficult task to endure, fearing for your life or the life of another officer?" (Deposition of Officer Kevin Kreager.)

D. The Court's Repeated Attempts to Comprehend the Basis of The Justice Department's Claim

The City and its counsel were not alone in their frustration with the United States' unlimited and unfocused approach. At the time it filed the Complaint, the United States presumably had (a) determined the appropriate labor market; (b) conducted an analysis to determine whether there was a statistically significant adverse impact resulting from the challenged examinations; (c) identified the supposedly unlawful selection devices; (d) evaluated whether those examinations (which are and long have been commonly used throughout California) were job-related; and (e) investigated whether there existed any alternatives. The United States' discovery responses, however, revealed that it had done none of these things.

More than one year after it filed its initial Complaint, the Government filed a motion to extend discovery for an additional six months. At a hearing held shortly thereafter, the following exchanges took place:

THE COURT: You want some more time, don't you?

MR. EURE: Yes, Your Honor.

THE COURT: All right. Well, you're going to have to explain to me why. Because you filed the action. And when you filed it, you certainly had some reason for doing so -- some facts to back up what you said.

MR. EURE: There are glaring disparities between the percentages of minorities in the City's Police and Fire Departments and the percentages of minorities in the [relevant] labor market --

THE COURT: But you had more than that when you filed the court case. You had more than just the percentages. You had some facts of the --

MR. EURE: We had some facts. But we didn't have the personnel files, which is part of the reason why we need to extend discovery --

THE COURT: I'm not following you. The relevant labor market?

MR. EURE: Yes. This case is going to -- basically, in order to prove our allegation to [sic] discrimination, the parties or the court is going to have to determine what the relevant labor market is. The court is going to have to determine at what level the City of Torrance should have been hiring blacks, Asians and Latinos into police officer and firefighter positions. And in order for an expert to conduct that kind of an analysis, the expert would need to know where the current incumbent employees come from.

THE COURT: You're the plaintiff. You've already decided what your relevant labor market --

MR. EURE: Well, we haven't.

THE COURT: -- Wait a minute. And you -- not only have you decided that, but you've decided that they are not -- out of their relevant labor market -- taking enough of certain kinds of people. You've decided that already.

MR. EURE: We've decided that the possible relevant labor market is Los Angeles County. And that if one uses Los Angeles County as a relevant labor market, then defendants are not hiring enough minorities.

Although it was perfectly reasonable for the Court to assume that the United States had already decided upon the relevant labor market, the Court turned out to be mistaken. Two weeks after that status conference, the Justice Department conceded in response to Defendants' Requests for Admissions that "our labor economist has not yet determined what Torrance's relevant labor market is." One wonders how the Government nonetheless represented to the Court two weeks earlier that there were "glaring disparities" between this unknown labor market and the racial composition of the Torrance Police and Fire Departments. That representation simply cannot be regarded as having been made in good faith.

By February 1995, six months after the Court extended the discovery cutoff date, the Justice Department still had not clarified its contentions. At a status conference, the Court asked counsel for Defendants: "What is the claim about? Is it an examination claim?" When Marissa Chun, a Justice Department attorney who was not even assigned to the case, interrupted the hearing from the back of the courtroom and objected to the Court's inquiry, the following colloquy occurred:

THE COURT: I am asking the question because Mr. Eure has not been very knowledgeable about the theory of his case on the other occasions when we got together. I am still curious what the case is about.

MS. CHUN: I would respectfully disagree in terms of his knowledge about the case, Your Honor, but --

THE COURT: No. I should have said he couldn't make up his mind is what has been occurring so today I was looking forward to having an opportunity to talk over with somebody where we are in the case. Now I don't know if you think it is inappropriate for me to ask that but I have asked it on more than one occasion and I am still curious to know.

THE COURT: I have been looking periodically at this case because every conference I have had has been a conference in which I have said to Mr. Eure what is it about. What is the theory of your case. Now I am still curious about what the theory of his case is.

THE COURT: . . . You might just as well tell [Mr. Eure] one other thing and that is I still don't know what the theory of the case is and some day I intend to find out what it is.

THE COURT: That is, I am very reluctant to cause [Mr. Eure] to fly out from Washington, but I was looking forward to at least one moment in this case when I could find out what the factual theory of it was.

By August 1995, the Government's claims had still become no more coherent. During a hearing in which the United States sought to compel the production of "underlying data" relating to studies which Defendants' experts had read (but had not themselves conducted), the Court made the following observations:

THE COURT: . . . This is the thing that puzzles me about your case. It puzzles me that the United States government, with all the power and financial ability they have, brought the action against the City of Torrance and yet I still can't figure out what it is you have that will carry the burden of proof here. What is it?

MS. CHUN: Your Honor, we believe that the evidence that we have --

THE COURT: See, because what you're telling me is you can't prove the case without discovery from them.

MS. CHUN: No, Your Honor. What we're saying --

THE COURT: Did you understand the exchange we just had? What you're saying repeatedly to the court is, you can't carry the burden of proof that you have unless you get details from the City. Now, how can that be? You wouldn't have picked out the City unless you had a prima facie case, would you?

THE COURT: But you had -- presumably when you filed the complaint, you had evidence that they had been discriminating or there had been various kinds of effects on various kinds of things that they did. Isn't that right?

MS. CHUN: Yes, Your Honor.

THE COURT: Well, why is it then that you can't put that evidence on without going through millions of dollars worth of additional discovery of data that support some other expert on which the expert on the stand is dependent? I mean, why do we have to do this much when presumably what you had was in front of you evidence that caused the United States to bring this action?

THE COURT: So I'm asking you, in order to evaluate what you're saying, what is the theory of your case?

MS. CHUN: Your Honor, our theory of the case is basically that the City of Torrance has discriminated against blacks, hispanics and asians in a number of manners. One of the primary ways, Your Honor, is a disparate impact theory where [examinations] that they used are not related to specific formula of the firefighter/police officer. There is no --

THE COURT: All right. Now, listen to me, because we've had this exchange lots of times before and I don't want to be unfair to your case. We're not talking about some person named Bill Smith or John Jones bringing an action against the City of Torrance, we're talking about the United States government. Now, that's a big case. That's a big step to take, because you have cities all over the United States where you suspect that and you picked Torrance. All right. Now, when you picked Torrance, you must have had in front of you before you wrote the first word on that complaint a theory that would let you go through a prima facie case. You wouldn't bring -- I know you wouldn't. You wouldn't write a complaint and then say we're going to go and discover that which will support what we've written. You wouldn't do that, would you?

Although the Court quite generously indulged Justice Department attorneys in the benefit of the doubt well beyond what was required, they did file this lawsuit without evidence. They did allege that the challenged examinations were unlawful with no evidence to support that assertion. They did use the discovery process to construct a theory from the ground up, rather than to support a theory erected on a foundation put in place during its pre-filing investigation. The only thing the Justice Department did not do was share its theory (if ever there was one) with the Court or the City. This Subcommittee should be absolutely intolerant of evasiveness such as this by a federal enforcement agency.

E. The Government's Theory Changes

On February 12, 1996 (two and one-half years after the Complaint was filed), the Government unveiled yet another version of its constantly evolving theory of civil rights misdeeds by the City. Although the Government's entire case to that point had been based on its allegation that the tests themselves were not job-related (or, as the United States put it, that "evidence of validity was lacking"), it abruptly announced that it was now challenging the way the examinations were used. Needless to say, the City was as surprised as was the Court.

THE COURT: Now we look at the test. There is the test, and your person says it is not job-related but since it is the kind of test that it is, it is to some degree job-related?

MS. CHUN: That may be true, Your Honor.

THE COURT: Now listen to me. So what do you do about the fact that to some degree it is job-related?

MS. CHUN: We produce evidence with regard to Torrance's use of a test which may in the abstract be job-related, but Torrance's particular use of the test, whether it be how they have weighted that test in the entire selection scheme, whether it be the particular cut-off score that they use in terms of the placement of the written exam in the sequence of different components of the selection system --

THE COURT: That is very different. That is very different.

MS. CHUN: That that particular use of the test is not job-related.

THE COURT: Now it is the way they use it, not the test itself.

MS. CHUN: That's correct, your honor.

MR. FLICK: Well, I am astonished. We have litigated --

THE COURT: I am having a hard time.

This sudden change in the Government's position was no doubt prompted by the City's pointing out to the Court that the United States' had expressly approved of the use of the two challenged police officer examinations in neighboring jurisdictions.

Perhaps the Government's most amazing assertion was made at the final pre-trial conference. Defendants had presented to the Court the United States' response to Interrogatory No. 4, which had sought the identification of alternative selection devices. The response was that the Justice Department was unaware of any such alternatives (or at least was unwilling to share them). In an attempt to defend its non-answer, Civil Rights Division attorneys stated as follows:

MS. CHUN: Mr. Flick posed the question what should the defendants have done. We recognize, and we understand that jurisdictions have police officers, firefighters. They have a continual need to hire such public safety officials, and if they ask what they should have done, they could have picked up the phone and called us.

What counsel neglected to mention was that the City had asked the Justice Department -- repeatedly -- what they "should have done." The City asked during the United States' investigation. It asked in their discovery requests. It asked repeatedly in the presence of the Court. The Government's consistent response, however, was a total refusal to respond.

The parties' motions in limine further demonstrated the inadequacies of the Government's case. First, the United States moved to exclude any evidence relating to the relevant labor market -- an issue which the Government itself introduced into the case. The Justice Department had retained an expert (Dr. John Pencavel), who had submitted an expert report and whom the City deposed. At significant expense, the City then retained an expert (Dr. Judith Stoikov) to rebut Dr. Pencavel's testimony, and the Government deposed her. When asked to explain why it now sought to exclude all labor market evidence, the United States stated as follows:

As far as the Defendants' statements about the United States' labor market analysis being originally propounded, we did propound at the beginning of expert discovery a labor market report. We hired an economist from Stanford to do that. We found that it was not relevant to the case . . .

The United States next moved to exclude (perhaps out of embarrassment) evidence that it had permitted other cities in Southern California to use the very same tests that it sought to challenge in Torrance. The Court, adopting the City's obvious position, noted that this was "equivalent to an admission" -- i.e., that it was "equivalent to saying that the Government really doesn't see anything wrong with the tests." The Court denied this motion as well.

Torrance moved to preclude a challenge to six examinations used by the Police Department, as well as one used by the Fire Department, with respect to which the Government had produced no evidence of adverse impact whatsoever. The United States argued that, although there was absolutely no evidence that any minorities even took those examinations, it nonetheless could assert that the City violated Title VII by using them. The Justice Department urged the Court to "infer" that a statistically significant number of minorities had taken the test, and then "infer" that a statistically significant adverse impact resulted. When it became apparent that the Court was not inclined to accept the United States' string of unfounded "inferences," the Government's fallback position was that "we can get an expert to give an opinion on the labor market availability." Several minutes earlier, however, the United States had argued that labor market evidence "was not relevant to the case." The Court granted the City's motion, thereby limiting the challenge at trial to five written examinations:

1. the CPS Entry Level Law Enforcement Test Number 1027;

2. the California Commission on Peace Officer Standards and Training ("POST") Exam Number 210 (for entry-level police officers);

3. the CPS Entry Firefighter Test Number 2149;

4. the Biddle & Associates Test Preparation Manual ("TPM") and Examination for entry-level firefighters; and

5. an entry-level firefighter examination administered in 1981, which, due to the passage of time, neither the City nor the Justice Department were able to identify.

F. The Trial

The trial was organized according to the shifting burdens of proof applicable to a Title VII adverse impact claim: the United States was to put on its prima facie case; the City was to produce evidence of a business justification; and the United States was then to attempt to rebut the City's claim or, failing that, demonstrate that equally effective alternatives with less alleged adverse impact could have been used.

1. The Government's Attempt to Make Out a Prima Facie Case

Before the trial, the Justice Department bemoaned the fact that it would be required to put on evidence of adverse impact to meet its initial burden of proof. It evidently assumed that is was necessarily supposed to win on the issue of statistical disparity, and that, therefore, it need not bother putting together a coherent, logical presentation supported by competent evidence. The Government's discussion of the prima facie case in its trial brief reflects this arrogance:

To avoid this mindless mincing about minutiae, the United States offered to stipulate in the Pre-trial Conference Order to Defendants' own datasets, but Defendants refused.

As is discussed below, the City declined to stipulate to their "own datasets" because, as the Justice Department had been advised more than two years earlier, those datasets were inaccurate.

The Government based its prima facie case on the testimony of Dr. John Miller, a statistician. The United States attempted to lay a foundation for Dr. Miller's opinion through the testimony of Kay Roso, a Justice Department paralegal. According to Ms. Roso, she provided Dr. Miller with a database that she had created, containing the names and races of the relevant test-takers. However, that database was created by merging data from the City's own documents (known as "CVS reports") with a different database created by a Dr. Harriet Zellner. The Government provided no evidence whatsoever as to the creation of the Zellner database. Nor did they provide Dr. Zellner. In fact, neither Defendants nor the Court have ever met Dr. Zellner. Clearly, Ms. Roso provided no competent testimony of her own:

Q. [By Ms. Von Eschen] You didn't work with Dr. Zellner in the creation of her database, did you?

A. No, I did not.

Q. You don't have personal knowledge of what documents she input into her database either?

A. No, just what I was given to understand when I was provided the Zellner data and the CVS exam detail reports. I was told that she did the data entry.

Q. Other than what you've been told by either counsel here or anyone, you don't have any personal knowledge of what source documents Dr. Zellner used?

A. No.

In addition to this lack of foundation, the data upon which the United States relied was seriously flawed -- a fact of which the Government had been made fully aware in early 1994. Although the City's Civil Service Administrator had informed counsel for the United States of computer errors reflected in the CVS reports, the Government did not bother to check the documents, or to communicate this information to Ms. Roso or Dr. Miller. This virtual disinterest in the prima facie case became evident when the documents were shown to Ms. Roso during her cross-examination:

Q. And if you'd turn actually to the second page in that document, what's numbered in the bottom 07-25-89. The twelfth applicant down, number 233, George Estrada, appears on this document to be a black female; isn't that right?

A. Yes.

Q. And a little further down the page, third from the bottom, Tae J. Kim, number 225, is reported as a white male?

A. Yes.

Q. And on the next page -- just to speed this along -- number 181, the first entry, Ann Lazure, is a white male. And number 191, Walter Malone, is a black female. Number 227, La Donna Palmer is a [sic] hispanic male. And Jacqueline Stephens, about midway -- two thirds of the way down, number 206, is a white male; isn't that right?

A. That's what the report says, yes.

Although the Court expressed doubt about the Government's prima facie case, calling it "extremely weak," and found Dr. Miller's testimony unpersuasive, it ultimately declined to rule on whether the United States had established a prima facie showing, because it made no difference in the outcome. Sadly, the United States' clumsy attempt to meet its initial burden was the very strongest part of its case.

2. The Government's Attack on the Examinations

The City's business justification for the use of the examinations was not complicated. Simply put, police officers and firefighters must possess basic reading, writing and reasoning skills. The most efficient, cost-effective means known to ensure that the City hires individuals with those skills is to include a standardized test as part of the overall selection process. Moreover, because leasing and administering a written examination is the least expensive component of the selection process, using it as the initial screening device is the most sensible. (For example, the City could not afford to interview orally all 2,350 police officer applicants or 3,193 firefighter applicants during the relevant period, but the written examination reduced the overall applicant pool to a number who could be processed more efficiently and within the City's economic limits. The Supreme Court has specifically included economic considerations in its test of what constitutes a legal "alternative.")

The Government offered no evidence whatsoever to refute this business justification. Instead, it focused solely on criticizing minutiae in the professional validation studies which the City offered -- although it was not required to do so -- to buttress its justification. The United States did not assert that the examinations were invalid; it merely claimed that Torrance could not prove the contrary. Indeed, the Court expressly concluded that "[t]he United States does not attempt to establish that the examinations are invalid."

The Justice Department's criticisms of the validation studies were based primarily (if not entirely) upon the Uniform Guidelines on Employee Selection Procedures, which, though the Government was loath to concede it, have never been adopted as federal regulations, are not legally binding and are not professional standards recognized as state-of-the-art in the field of industrial organizational psychology. The most glaring flaw in the Justice Department's approach, however, stemmed from the fact that Title VII defendants "are not required, even when defending standardized or objective tests, to introduce formal validation studies at all." See Watson v. Forth Worth Bank & Trust Co., 487 U.S. 977, 998, 108 S. Ct. 2777, 2791 (1986). Though it tried valiantly to ignore the Supreme Court's decision in Watson, counsel for the United States reluctantly conceded that there was no such requirement:

THE COURT: Legally do they have to show in this action a validation study?

MS. CHUN: Our belief is yes, Your Honor, that they --

THE COURT: No. That is I know what you believe. I just said to you legally do they have to.

MS. CHUN: I guess the only thing that I am aware of, Your Honor, with respect to that issue -- I am just so -- in terms of the testing case law that I have reviewed, the defendants generally produce validation studies, etc., and although there are instances where employers do not produce such, the only cases that I can recall off the top of my head generally find that those tests are not valid because they haven't been professionally developed. I can't exclude the possibility that an employer need not produce a validation study.

In attempt to breathe life into this feeble theory, the Civil Rights Division took the position that the validation studies on which the City relied could not be credited because of the absence of some of the "raw data" underlying the studies. Even though much of the missing data were collected more than 15 years before this case came to trial, the Justice Department contended that the City's (or the test developers') failure to maintain every shred of related paper was fatal to the defense. As the Court concluded, not even the Uniform Guidelines, which the Government sought to proclaim as gospel, place such a document retention burden on Title VII defendants.

As I referred to generally above, one of the most significant flaws in the Government's assertion that the challenged examinations were not job-related was its express approval of the some of the same examinations in neighboring jurisdictions. For example, in United States v. City of El Monte, USDC Case No. CV 91-6151-R, the Civil Rights Division expressly approved the use by the El Monte Police Department of the CPS #1027 test, calling it a "job-related written examination." That consent decree was approved by the federal court on May 27, 1992, one year after the United States began its investigation in Torrance, and 14 months before it filed suit against Torrance. The City pointed out, and Judge Pfaelzer observed that, in the absence of evidence that the job of police officer in Torrance was materially different than the job of police officer in nearby El Monte (a position the Government initially sought to take), the Government's endorsement of the CPS #1027 examination amounted to an admission.

3. The Government's Showing Regarding Alternative Selection Devices

The Court's Memorandum of Decision, and Findings of Fact and Conclusions of Law (see Exhibit B), recognized that the Government failed to identify a single alternative selection device -- either a different selection device or an alternative use of a current selection device -- during the investigation, or ever. This finding was previewed during the closing sessions of the trial:

THE COURT: You are not going to disagree with that, are you? You never offered any alternatives, did you? You don't even contend that you did.

MR. EURE: We did not point to specific alternatives.

THE COURT: Don't fence with the words here. I have already pursued that with you. You said to me you did not consider that to be your . . . And that's been borne out through everything I have seen, that the Justice Department never said at any time to Torrance, this is what we want you to do.

MR. EURE: We have not said that, you are correct.

* * * * *

THE COURT: You never said to them in all of the time you were talking to them, we hear you use the XYZ 17 test and you are in the clear with us. Never.

MR. EURE: The United States just simply does not sponsor specific exams. The next day, Justice Department attorneys suddenly attempted to reverse course and claim that they had, in fact, offered evidence of alternatives.

THE COURT: You are passing me by on the question. The question I have asked before and I asked yesterday, did the government make a proposal or make a suggestion to the City of Torrance as to how they could stay within the limits of the law and avoid a lawsuit. The answer to that is no.

MR. EURE: Not a specific proposal based on what we knew.

THE COURT: I don't know the difference between specific and proposal.

MR. EURE: Certainly the suggestion was made that --

THE COURT: You said to me before, "we don't do that." That is what you said. "We don't -- it is not the government's role to do that."

MR. EURE: I said, "we don't propose specific written tests."

THE COURT: "We don't propose anything specific. We just are talking to them, that is all."

MR. EURE: That was the nature of the discussions between counsel for the parties.

Sensing that the Court was unwilling to play along, the United States tried yet another approach: it began promising the Court that it would offer evidence of alternatives before the conclusion of the trial:

THE COURT: I gather -- just let me put this one question to you. I gather you are not going to show any alternatives because you don't believe you have to.

MR. EURE: The United States will be presenting evidence today, your honor --

THE COURT: You will.

MR. EURE: -- That there were alternatives available during the relevant time period.

* * * * *

THE COURT: Well, Mr. Eure, to be fair about this --

MR. EURE: Sure.

THE COURT: -- The plaintiff in an action doesn't only have to criticize in an action like this. What you are saying, in effect, is they should go out and do the best they can to respond to your criticisms, but it may not be good enough, and you are not prepared to tell them what would be good enough.

MR. EURE: Well, certainly during the investigation of this case we did not see that as our duty under Title VII.

THE COURT: Now, I am asking you and that is different than the investigation, because they have to do it, and you have to criticize.

MR. EURE: Yes. Well, you will be hearing testimony, Your Honor, as this case proceeds --

THE COURT: I want to. I want to.

MR. EURE: -- From the United States --

THE COURT: I want the United States to say -- I want the United States to say that if this written reading and writing examination were given it would not have a substantially adverse impact if it were used in a following way.

MR. EURE: You will hear testimony.

* * * * *

THE COURT: Somebody along the way, I mean, having read all these narrative statements -- somebody along the way is going to have to sort of step up and be counted on the question of how you would use it if you used it validly.

MR. EURE: The United States is willing to step up to the plate, Your Honor, when we get to the alternative selection devices burden, and we will obviously be offering the testimony of our experts to address a much more specific matter -- in a manner that is consistent with professional practice.

THE COURT: I want him to.

MR. EURE: We will be addressing those issues in due course through the testimony of our experts.

The Court recognized that the Government's promise to introduce evidence of alternatives at trial was entirely inconsistent with its position before the litigation and throughout discovery. Moreover, the Court observed that this posture was particularly improper for a plaintiff invested with the power of the federal government:

THE COURT: There is also a problem that if you begin with alternate procedure evidence, you start putting on your case as you indicate you would showing that there are alternate procedures, doesn't the court have a right to say, "Well, if there are alternate procedures and you knew what they were, why didn't you tell them about them?"

MR. EURE: If I may respond. I believe the United States' view is that the appropriate analysis under Title VII or the appropriate inquiry for the Court to conduct is to establish whether or not the defendants were aware of alternative selection procedures, made any effort to use those procedures. It is the view of the United States that it was not the obligation of the plaintiff. We weren't even plaintiffs before we filed suit obviously, but it is not our understanding of the law that the United States --

THE COURT: Mr. Eure, it is not a game, you know. If the sovereign comes in to investigate, doesn't the sovereign have to say something that indicates what would solve the problem?

Judging from its total failure to present any evidence of legitimate alternatives, the Justice Department obviously never intended to offer such evidence; counsel's repeated representations to the Court must be regarded as having been knowingly false. Having found themselves far more deeply immersed than they ever thought they would be, in a real trial, with real parties, in a real Court, with real interests at stake, Justice Department attorneys were simply unable to admit that their entire claim had been a fraud upon the Court all along. Faced with the revelation that the Court actually expected it to present evidence to meet its burden, the United States evidently concluded that it had no practical option other than prevarication. Contrary to its repeated, emphatic assurances to the Court (but consistent with the position it took with the City for nearly five years), the United States failed altogether to present any evidence of an alternative selection device. As the Court put it, the Justice Department "put on no case at all."

IV. THE AFTERMATH

As the Subcommittee may be aware, the United States has asked the Court of Appeals for the Ninth Circuit to overturn Judge Pfaelzer's decision, although the precise bases of the appeal have yet to made clear. (Absent a request for an extension, the Justice Department's opening brief is due on May 27.) This is not a close case, however, nor is it one where a district judge with more than two decades of distinguished service on the bench, sitting as the trier of fact, somehow overlooked altogether persuasive evidence that would have demonstrated that the challenged examinations are unlawful. There simply is no such evidence. The City is of the view that the Civil Rights Division's appeal is as frivolous as was the case below.

More importantly for the purposes of this hearing, the City has asked the district court to award it nearly two million dollars in attorneys fees, urging that the Government's conduct departed from the ethical standards applicable to lawyers generally and government lawyers in particular. On the City's behalf, I have urged that the Civil Rights Division's conduct be met with the equalizing power of the federal court to restore the City to the status quo ante.

The law frequently fails to provide an adequate remedy for defendants forced to endure frivolous civil rights litigation, however. The circuit courts have frowned upon attorneys fee awards for prevailing defendants in civil rights cases on the theory that they will chill the pursuit of legitimate claims. This claim was hardly legitimate, however, and this case did not involve a private plaintiff. This plaintiff is the sovereign, the most well-funded plaintiff ever to file suit in federal court. It there is any chilling effect to flow from an award to Torrance in this case, it would be a chilling effect on conduct of which the Court's rules, the Subcommittee's expectations and the Civil Rights Act itself should be absolutely intolerant.

If there is any single legislative proposal I would make in response to the Torrance experience, it is an amendment of the Civil Rights Act to make clear that, a prevailing Title VII defendant is entitled to an award of attorneys fees against the United States where the district court concludes that the Government failed to make a reasonable pre-filing factual inquiry, or where the claim was without legal or factual merit at any stage of its prosecution, or where the conduct of the Government's attorneys depart in a material way from the Federal Rules of Civil Procedure, the applicable rules of court, or the Ethical Canons. In light of its special position, the statute should expressly recognize the duty of the sovereign to be exemplary in its pursuit of its enforcement efforts, and should create economic disincentives to conduct such as that I have observed first-hand and have described here today.

V. CONCLUSION

It is difficult for me to imagine a case that is more frivolous, unreasonable or without foundation. It would be disappointing enough if this case was brought by a private plaintiff, acting as a private attorney general. It is shocking that this case was brought and pursued by the Attorney General, at enormous public expense. Despite its recent assertions to the contrary, the Justice Department had no credible evidence of discrimination in July 1993; it filed suit in the hope of finding it. It also hoped that long before it reached trial, the City would collapse under the withering pressure of its abusive litigation tactics, that it would decide to put its scarce resources to better use, and simply acquiesce in the Government's command that it adopt hiring preferences. It used the discovery process, reinforced by countless misrepresentations, to try bludgeon the City into submission. The Federal Rules of Civil Procedure and Title VII require more -- especially from the sovereign. They require attorneys to sign pleadings based on more than just a gamble, a hope or the likelihood that the threat of persistent, burdensome litigation will coerce the desired result.

Government attorneys, more than all other attorneys, must have a good faith belief -- and facts to support that belief -- that a violation has occurred. In this case, the United States had neither. In its role as prosecutor, the United States' highest principle must be that justice results, not merely that the result can be justified by some ideological or political whim. In this case, the Government attempted to distort the facts and the law beyond recognition, and to manipulate the process to its sole advantage.

As Judge Pfaelzer so aptly and repeatedly explained to counsel for the United States, the litigation process is not meant to be a game. The goal of a lawyer -- particularly one entrusted with the full power of the federal government -- should not be simply to win at all costs. When the sovereign acts in its civil enforcement capacity, it has a duty to exercise that authority with even-handed fairness and in the interest of justice. Because it is invested with the power of the United States, an enforcement agency may not simply set out to win, as the Justice Department did in this case. As set forth in the Ethical Canons:

A government lawyer who has discretionary power relative to litigation should refrain from instituting or continuing litigation that is obviously unfair. . . . A government lawyer in a civil action or administrative proceeding has the responsibility to seek justice and to develop a full and fair record, and he should not use his position or the economic power of the government to harass parties or to bring about unjust settlement or results.

The Court of Appeals for the District of Columbia Circuit recently described the duties of a government attorney. In Freeport-McMoran Oil & Gas Company v. F.E.R.C., 962 F.2d 45 (D.C. Cir. 1992), the Court "pause[d] to address [a government attorney's] remarkable assertion at oral argument that government attorneys ought not be held to higher standards than attorneys for private litigants." Id. at 46. The Court repudiated this suggestion as follows:

The notion that government lawyers have obligations beyond those of private lawyers did not originate in oral argument in this case. A government lawyer is the representative not of an ordinary party to a controversy,' the Supreme Court said long ago in a statement chiseled on the walls of the Justice Department, but of a sovereignty whose obligation . . . is not that it shall win a case, but that justice shall be done.' Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 79 L.Ed. 1314 (1935). The Supreme Court was speaking of prosecutors in Berger, but no one, to our knowledge (at least prior to oral argument), has suggested that the principle does not apply with equal force to the government's civil lawyers.

In the Torrance case, the United States was blinded by its single-minded pursuit of a policy goal: increasing the racial and ethnic diversity of public safety agencies. Instead of asking whether Torrance had violated the law, it asked "has Torrance hired enough minorities to suit us?" Having answered that question in the negative before it ever set foot in Torrance, the Government simply glossed over its duties as lawyers, and has tried to run roughshod over the City for six years. As a result, the Government engaged in the ultimate exercise in prosecutorial gamesmanship: it attempted to use the process, rather than reliance on the facts, to achieve the desired result. Judge Posner put it succinctly:

[L]itigation under the Federal Rules of Civil Procedure is not supposed to be merely a game, a joust, a contest; it is also a quest for truth and justice.

If nothing else, as part of its oversight function, I genuinely hope that the Subcommittee will take action to see that no other municipality, large or small, ever again falls victim to the abuse visited upon the city of Torrance.

Thank you.

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