We are not here seeking a license to engage in unlawful reverse discrimination. We are not here seeking to gag the objections, legitimate or otherwise, of white employees to affirmative action. We certainly do not seek to deprive anyone of their constitutional right to an opportunity for a day in court. We are here to seek provision for harmonizing the right to a day in court, the right to object to affirmative action, and the right to be free from illegal reverse discrimination, with the right of blacks to have discrimination redressed, and its effects eradicated, the right of employers to achieve repose and finality in litigation, and the right of men and women of all colors to have controversy resolved and laid to rest. I believe the Act under consideration will harmonize those rights.

Birmingham is a city striving to overcome the effects of a long and contemptible history of egregious racial discrimination. This just cause has unexcusably cost the taxpayers of Birmingham a tremendous amount of money, and under Martin v. Wilks, can be expected to cost much more. We ask you to ensure that this injustice will not be repeated or perpetuated.

The CHAIRMAN. Mr. Fitzpatrick.

Mr. FITZPATRICK. Mr. Chairman, may I pass to Mr. Henson first? The CHAIRMAN. Surely. Mr. Henson.

Mr. HENSON. Mr. Chairman, I am James Henson, an employe of the Birmingham Fire and Rescue Service. I am also a plaintiff in the case which is called Martin v. Wilks in the U.S. Supreme Court of the United States.

I believe that racial discrimination is wrong no matter who it is directed against. I sued the City of Birmingham because I was denied a promotion on the basis of my race. I am pleased that the U.S. Supreme Court has ruled that I am entitled to a day in court. I urge this committee not to take away my opportunity to show that I have been discriminated against.

I joined the Birmingham Fire Department in 1976. At that time, blacks had been in the department for several years. I am not responsible for any wrongs that may have occurred before or since that time.

I had previously been the chief of a small suburban fire department but wanted to join a large department where my opportunities would be greater. I worked hard and earned a 2-year college degree in fire science and became a qualified paramedic.

In 1983, I spent months studying for a promotional exam, and out of over 100 people who took the test, placed No. 6 on the list. When the Chief interviewed me for a promotion, he said that I would not be promoted because I was white. The Chief said that he had no choice in the matter because 50 percent of the promotions had been set aside for blacks under the consent decree the city had entered into 2 years earlier.

Carl Cook, the black firefighter who got my promotion, as shown on the chart which is attached to my statement, was ranked No. 85, while I was No. 6 on the list. Mr. Cook had been in the department 9 years, while I was only there 6, so he had more seniority points than I did.

Mr. Cook was not a qualified medic, had no fire science degree, had never worked as the lead worker or acting officer and had no prior firefighting experience. I had all of these qualifications. Despite my better qualifications and starkly higher test scores, the fire chief told me I would not be promoted because I was not black. Moreover, Mr. Cook was never identified as a victim of past discrimination, but received preferential treatment solely due to his

race.

Finally, several years later, I received my promotion to lieutenant and thereafter I was promoted to captain. During those years prior to promotion, my career was on hold, and I lost pay and seniority solely due to my race. Aside from these tangible losses, this has been a demoralizing experience for me and my family.

I am a working class man. I am not responsible for any past discrimination by the City of Birmingham. I did not cause any discrimination and should not have to pay the price for it. The City of Birmingham_should pay the price for its own wrongs. I am not a lawyer, but I think I can tell when I have been treated unfairly. Mr. Chairman, all I am seeking is a day in court to show I am a victim of unlawful discrimination. I filed suit promptly after I was denied a promotion. I had no knowledge of the details of the litiga

tion which resulted in the consent decree. If I get my trial and appeal and the Courts find that the city's conduct was legal, I can accept that and know that in America everyone is entitled to a day in court. What I cannot accept is having the city's agreement shoved down my throat with no opportunity to a full and fair trial to show that this is wrong.

Thank you.

The CHAIRMAN. Thank you, Mr. HENSON.

[Information submitted by Mr. Henson follows:]

1/ Total number of possible correct answers on the March 1983 fire lieutenant examination:

217.

The CHAIRMAN. Mr. Fitzpatrick.

Mr. FITZPATRICK. Thank you, Mr. Chairman.

I am Raymond Fitzpatrick of Birmingham, AL. I represent the nonminority firefighters of the Birmingham Fire and Rescue Service in Martin v. Wilks. Thank you for the opportunity, Senators, to comment on section 6 of S. 2104.

Martin v. Wilks was a correct decision which Congress should leave undisturbed. The U.S. Supreme Court reaffirmed the fundamental principle of due process that all Americans are entitled to a day in court when they believe they have been wronged. I wish to make it clear that Martin v. Wilks is a decision designed to further the due process guarantees embodied in the Constitution, and any legislative action in this area must meet due process scrutiny. Those who claim that the U.S. Supreme Court was merely interpreting the Rules of Civil Procedure are wrong.

The U.S. Supreme Court quoted Justice Brandeis when it held that it is a principle of general application in anglo-American jurisprudence that one is not bound by a judgment in a litigation in which he has not been designated as a party by service of process. The Court recognized that this fundamental due process principle was incorporated into the Rules of Civil Procedure by the permissive language of rule 24 governing intervention and the mandatory joinder provisions of rule 19. It is a principle which, both as a matter of due process and fundamental fairness, Congress should not disturb.

The fairness of this principle, Mr. Chairman, is demonstrated by the facts of the Birmingham litigation where the nonminority firefighters filed both lawsuits challenging the quota plan and a motion to intervene in the consent decree litigation.

In 1975, the United States filed suit against the City of Birmingham and the Personnel Board. The city faced a potential back pay claim of $5 million, but rather than wait for a ruling from the courts, in 1981 the city secretly negotiated a consent decree in which it agreed to 50 percent quotas for promotions to fire lieutenant, quotas for all other jobs with the City of Birmingham, and paid only $265,000 to the victims of past discrimination.

Mr. Arrington in his deposition described this arrangement as the "best business deal" the city had ever made, and indeed it was, for the city settled the case on the backs of innocent nonparties who themselves were not guilty of committing any discrimination. The Firefighters Association appeared at the District Court's Fairness Hearing to oppose the quotas and urge the court to require participation by the nonminority employees in the settlement process. In addition, before approval of the decree, the Firefighters Association and two of its members moved to intervene so they could contest the legality of the proposed decree. We sought our day in court as parties before the decree was entered, but at the urging of the Lawyers Committee and the City of Birmingham, the District Court refused to allow intervention, claiming we were 5 years too late.

The firefighters appealed from the denial of intervention. But the Lawyers Committee and the City again told the Eleventh Circuit that we should not be allowed to intervene because we were free to file separate litigation to challenge the city's actions.