U.S. District Judge Charles R. Richey said yesterday that the D.C. Fire Department's affirmative action plan that led to the promotion of five black firefighters is not in effect because he has not approved the plan.
"There is no plan in effect right now," Richey said at a hearing yesterday. "There is no affirmative action plan at the moment because the court has not approved it."
D.C. Corporation Counsel Inez Smith Reid said later that it was the city's view that the promotions are valid, but the District government agreed to Richey's request to halt further promotions while the plan undergoes a court challenge and judicial review.
The affirmative action plan, calling for strict numerical goals to increase minority representation in the department, was filed in January with the D.C. Office of Human Rights by the fire department as part of a consent decree approved by Richey last year.
The plan came under legal attack almost immediately from Local 36 of the International Association of Fire Fighters, the union representing most D.C. firefighters. The Justice Department filed a lawsuit on Monday, charging that the plan is discriminatory because "it grants preferences based on race and sex."
Reid said yesterday that District officials moved to enact the affirmative action plan Friday, believing that Richey's final approval of the affirmative action plan was unnecessary.
But Richey emphatically disagreed, pointing to a provision of the consent decree that said the fire department would submit a "proposed" plan and that the court would retain jurisdiction "until further order of this court."
In two lengthy hearings yesterday, Richey persuaded lawyers in the two cases, plus attorneys in a third lawsuit, to consolidate their complaints under an expedited schedule aimed at settling the legal issues quickly.
Richey set the next hearing for March 23, with a decision likely to follow shortly afterward on whether the affirmative action plan, in Richey's words, "meets constitutional muster."
Attorneys for two of the plaintiffs, the Justice Department and Local 36, agreed to tell Richey by today whether their allegations can be redrafted into a single lawsuit.
"You're almost in tandem with the government," Richey told George Cohen, a lawyer representing the union. "It's quite unique to have a union agreeing with the United States.
"This matter is of the greatest importance to the community from the standpoint of civil rights and the standpoint of health and safety," Richey said. "[Firefighting] is an essential public service that has to be performed, just like the police department."
Reid, agreeing to the expedited proceedings, said yesterday that the city has spent $2.1 million in the last six months for overtime to cover positions left vacant while the affirmative action plan was debated.
Reid said the overtime situation has caused a "severe economic and budgetary strain" on the city, as well as "fatigue and exhaustion" among firefighters suffering from the "excessive workload."
Joan Burt, a lawyer representing a group of black firefighters who sued in 1984 to force the affirmative action plan into effect, said the city's overtime bill totals about $17 million since 1980 because of the vacancies.
By declaring the plan not in effect yesterday, Richey left open the question of whether the two lawsuits challenging it might be moot. But a Justice Department attorney said yesterday that the department planned to move ahead with its suit.
The D.C. Office of Human Rights ordered the fire department to develop an affirmative action plan on behalf of minorities after a group of black firemen complained in 1980.
When the plan was not forthcoming, a separate group filed suit last year to force enactment of affirmative action in the department. That group, the Progressive Firefighters Association, is composed of about 450 blacks.