Case: 21-3466 Document: 23 Filed: 06/22/2021 Page: 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT
Case No. 21-3466

ERIC KOHLER, : Trial Case No. 1:20-cv-00089

:
Plaintiff/Appellant :
v. :
CITY OF CINCINNATI, et. al. :
Defendants/Appellees :

PLAINTIFF/APPELLANT’S REPLY IN SUPPORT OF HIS MOTION FOR

INJUNCTION PENDING APPEAL
1. Introduction

At bottom, the Response briefs from Defendants, United States and the City

of Cincinnati, are jaw-droppingly brazen. It does not matter, they say, that Kohler

was passed over for promotion solely due to an unconstitutional race and sex-based

quota system. It does not matter, they say, that Kohler suffers an ongoing seniority

harm that affects everything from details and job assignments to promotions. A

federal court, they say, cannot issue injunctive relief to prohibit and stop this

ongoing, unconstitutional harm, because Kohler allegedly lacks standing even to

complain about it.

And, the City of Cincinnati Defendants go further. Despite proof that

Kohler will be in the range to test for the next promotion in a short five months,

they say that Kohler lacks standing to challenge that unconstitutional harm as well,
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because he might not qualify. He needs to sit down and be quiet – there is nothing

to see here – move along.

One cannot help but wonder, of course, if they would have said the same to

Rosa Parks, or Fred Korematsu, or Oliver and Linda Brown, or Mildred Jeter and

Richard Loving. Some of those cases came out the right way, and history judges

them kindly. But others did not. Cf. Trump v. Hawaii, 138 S. Ct. 2392, 2423

(2018) (condemning Korematsu v. United States for the judicial embarrassment

that it was).

Here, the United States and City Defendants argue that they should be able

to continue their unconstitutional policies, that they need not correct the effects of

their discriminatory policies and, anyway, Kohler has not been harmed from the

race and sex-based quota system that denied him his rightful seniority and will

delay his promotional opportunities. Put in other terms, the United States and

City’s arguments boil down to an argument that Rosa Parks needs to keep going to

the back of the bus, Fred Korematsu needs to remain behind razor wire, Oliver and

Linda Brown need to keep going to their racially segregated schools, and Mildred

Jeter and Richard Loving can keep waiting to get married, because the courts can’t

even consider that the harm they suffer is redressable.

At bottom, the position of these Defendants actually is stunning, and

shameful.

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2. In addition to the authority cited in our opening brief, recent authority from
this Court disposes of the City Defendants’ and United States’ arguments
about standing

Just a few weeks ago, this Court decided Vitolo v. Guzman, 2021 U.S. App.

LEXIS 16101, --- F.3d --- (6th Cir. 2021),1 a factually analogous case in which the

government utilized a race and sex-based system to provide benefits to certain

favored groups, but to the detriment of others.

As is and was the case here, “the government argued that the plaintiffs

lacked standing to challenge the [government’s] use of racial preferences because

the plaintiffs may not ultimately succeed.” Id. Unlike the District Court here,

however, “the district court [in Vitolo] correctly rejected that argument.” Id. The

injury here is "the denial of equal treatment resulting from the imposition of the

barrier, not the ultimate inability to obtain the benefit." Id. citing Ne. Fla.

Chapter, Associated Gen. Contractors of Am. v. Jacksonville, 508 U.S. 656, 666,

(1993); Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701,

719 (2007) ("[O]ne form of injury under the Equal Protection Clause is being

forced to compete in a race-based system that may prejudice the plaintiff."

(citations omitted)). “The government's use of racial preferences causes that

1
https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0120p-06.pdf (last visited
6/18/2021).

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injury.” Id. “And that injury is redressable by a decision ordering the government

not to grant priority consideration based on the race of applicants.” Id.

As this Court explained a couple weeks ago:

For if the court enjoined use of "the race-based presumption of the SBA
regulations or the race-conscious portions of the definition of 'socially
disadvantaged,'. . . the playing field in qualifying for the priority period
would be 'leveled."' R. 32, Pg. ID 268. Why? Because the race of the
applicant "would not factor into the order in which applications are
processed by SBA." Id. That is enough to show a substantial likelihood of
success on standing—and, indeed, the government has not claimed
otherwise on appeal.

Id.
As was the case in Vitolo, the City Defendants and United States also argue

mootness, claiming that Kohler already received his promotion to Sergeant (and

the City argues that Kohler might not get promoted to Lieutenant later this year

and thus the harm is speculative, mirroring the argument this Court rejected above

in Vitolo). The City goes further, and purports to contest the factual allegations

about Kohler’s ongoing harm, despite failing to do so below, and despite Kohler’s

unrefuted allegations of ongoing harm and the City’s own submitted agreement

that proves it. (Verified Am. Compl., RE#26, ¶¶ 19, 20, 38, PageID#291, 295;

Collective Bargaining Agreement, RE#22-3, Sections 19, 29, PageID#188-190,

196-197).

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Likewise, this Court’s treatment of the Government’s arguments about

mootness in Vitolo also dispose of the City Defendants’ and United States’

mootness arguments here:

Mootness is a high hurdle. The government must show that a court could
order no "effectual relief whatever" for the plaintiffs' injury. Chafin v.
Chafin, 568 U.S. 165, 172, 133 S. Ct. 1017, 185 L. Ed. 2d 1 (2013) (citation
omitted). What's more, the government must show that it has "completely
and irrevocably eradicated the effects" of the program's race and sex
preferences. Los Angeles Cnty. v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379,
59 L. Ed. 2d 642 (1979). But the government hasn't cleared the bar. Race
and sex preferences continue to bear on whether an applicant receives a
grant before the money runs out. And a court order ending those preferences
will relieve the plaintiffs' injury (and allow Vitolo's application to be
considered sooner than it otherwise would).

At a bare minimum, correcting Kohler’s seniority and enjoining the use of

the 1987 Consent Decree in his upcoming promotion process is necessary to

"completely and irrevocably eradicate[] the effects" of the program's race and sex

preferences that were already, unconstitutionally applied to him. Davis, 440 U.S.

625, 631. Kohler has standing to seek this injunctive relief. Brunet v. City of

Columbus, 1 F.3d 390, 400-403 (6th Cir. 1993).

3. In addition to the authority cited in our opening brief, recent authority from
this Court disposes of arguments about irreparable harm, harm to others, and
the public interest

Just as Vitolo, 2021 U.S. App. LEXIS 16101, --- F.3d ---, disposes, and not in a

good way, the Defendants’ arguments about standing and mootness, it also

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dispenses with their arguments about the irreparable harm, harm to others, and the

public interest.

As this Court also explained in Vitolo, “[i]n constitutional cases, the first

factor is typically dispositive.” Id., citing Roberts v. Neace, 958 F.3d 409, 416 (6th

Cir. 2020) (order) (per curiam). “That's because ‘[w]hen constitutional rights are

threatened or impaired, irreparable injury is presumed.’" Id., citing Obama for Am.

v. Husted, 697 F.3d 423, 436 (6th Cir. 2012). “And no cognizable harm results

from stopping unconstitutional conduct, so ‘it is always in the public interest to

prevent violation of a party's constitutional rights.’" Id., citing Deja Vu of

Nashville, Inc. v. Metro. Gov't of Nashville & Davidson Cnty., 274 F.3d 377, 400

(6th Cir. 2001). See, also, Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001)

("[W]hen reviewing a motion for a preliminary injunction, if it is found that a

constitutional right is being threatened or impaired, a finding of irreparable injury

is mandated."). Defendants’ arguments to the contrary are just wrong.

4. The United States’ and City’s policies of imposing race and sex quotas
violates the Constitution

Significantly, but in light of their policies, not unexpectedly, Defendants do not

even address the actual merits of their policies that impose blatantly race-based and

sex-based criteria. Little wonder, because these policies are presumptively

unconstitutional. Vitolo, 2021 U.S. App. LEXIS 16101.

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Race-based discrimination is predicated on an immutable, protected

characteristic, under which the court applies strict scrutiny. Detroit Police Officers

Assn v. Young, 989 F.2d 225 (6th Cir. 1993); Cleveland Firefighters for Fair Hiring

Practices v. City of Cleveland, 669 F.3d 737, 738-739 (6th Cir. 2012). The court

will uphold such discrimination only if it furthers a compelling governmental

interest and is narrowly tailored in doing so. Id. For a racial classification to

survive strict scrutiny in the context before us, it must be a narrowly tailored

remedy for past discrimination, active or passive, by the governmental entity

making the classification. City of Richmond v. J.A. Croson Co., 488 U.S. 469

(1989).

Gender-based discrimination is reviewed under intermediate scrutiny.

United States v. Virginia, 518 U.S. 515 (1996). Further, "parties who seek to

defend gender-based government action must demonstrate an exceedingly

persuasive justification for that action." Id.

In Young, as here, the City had a racially discriminatory quota system,

based, in part, on an aging consent decree. 989 F.2d 225. The Sixth Circuit first

observed that “[r]acial classifications and plans, even if approved as a part of a

consent decree, ‘are subject to the most exacting scrutiny; to pass constitutional

muster, they must be justified by a compelling governmental interest and must be

necessary . . . to the accomplishment' of their legitimate purpose.’" Id. at 227,

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quoting Palmore v. Sidoti, 466 U.S. 429, 432 (1984). Moreover, “[t]he type of

relief afforded black applicants who have been promoted to sergeant ahead of

plaintiffs must be warranted by a strong state interest and be narrowly tailored."

Id.

The Sixth Circuit articulated four factors to evaluate in the continuation of

any consent decree:

the necessity for the relief and the efficacy of alternative remedies; the
flexibility and duration of the relief, including the availability of waiver
provisions; the relationship of the numerical goals to the relevant labor
market; and the impact of the relief on the rights of third parties.

Id. at 228, quoting United States v. Paradise, 480 U.S. 149, 171 (1987).

Significantly, in its analysis in Young, the Sixth Circuit weighed these factors as

they exist currently, rather than when the consent decrees were initially entered.

Moreover, “[l]imiting the duration of a race-conscious remedy which clearly

impacts adversely upon the plaintiffs is a keystone of a narrowly tailored plan as

may be seen by recent Supreme Court decisions.” Id.

Applying the four-factor test here, there is no longer any necessity to

discriminate against white officers, since the City has not only achieved the goals

in question, but those who were employed at the time the decrees were entered are

no longer employed. Second, the duration of the ongoing discrimination is near-

perpetual, going on forty years. Third, the goals in question in relation to the labor

market show that the decrees in question, to the extent they were once appropriate,
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have now been met, and that women and minorities constitute a significant

majority of the top two ranks within the Cincinnati police department. And finally,

there is a significant impact on third parties, e.g. white male officers, including this

Plaintiff.

That then takes us to the 2012 Sixth Circuit decision in Cleveland

Firefighters, 669 F.3d 737, 738-739. The Court observed “a public employer can

hire or reject applicants based upon their race only to the extent, and only so long

as, its use of racial classifications serves to remedy specific instances of past

discrimination by that same employer.” Id. But more specifically, “the question

more precisely stated is whether, 31 years out, the decree's racial classifications

continue to remedy past discrimination by the City's Fire Department.” Id. at 739.

The Sixth Circuit framed the seminal question, namely “whether the court could

lawfully extend the decree's race-based measures to apply more than 37 years after

they were first adopted.” Id. at 741.

The Cleveland Firefighters Court observed that “‘[r]emedying the effects of

past intentional discrimination" is a compelling interest.” Id. at 742. “To establish

a compelling interest, however, the state actor must … show that the racial

classification actually serves to remedy that discrimination.” Id. “In the typical

case, that showing is taken almost for granted; but the typical case does not involve

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a racial classification that the state actor has already applied for 31 years and

proposes to apply for six more.” Id.

Thus, “[w]hether a racial classification is supported by a compelling interest

when first applied by a public employer, and whether it remains supported by such

an interest 31 years later, are two different questions.” Id. And, clearly, “[t]he

Constitution trumps a consent decree.” Id.

“To extend their effectiveness still longer, the district court must find that

the classifications continue to remedy the Fire Department's past discrimination in

firefighter hiring.” Id. No such finding was made there, or here. Nor can it be:

neither the City nor the United States defended the decrees on the merits.

The United States, for its part, argues that the Plaintiff has it wrong, that the

standard to employ here is a highly deferential one. Frankly, that intentionally

misstates the law applicable to this case.

With a constitutional case, such as this one, this Court has concluded that all

four factors are "essentially encompassed by the analysis of the movant's

likelihood of success on the merits, which is a question of law that must be

reviewed de novo." Am. Freedom Def. Initiative v. Suburban Mobility Auth. for

Reg'l Transp. (SMART), 698 F.3d 885, 889-90 (6th Cir. 2012). See, also, City of

Pontiac Retired Emps. Ass'n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en

banc) ("Whether the movant is likely to succeed on the merits is a question of law

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we review de novo[,] [but] [w]e review for abuse of discretion . . . the district

court's ultimate determination as to whether the four preliminary injunction factors

weigh in favor of granting or denying preliminary injunctive relief.").

Here, of course, the District Court erred as a matter of the law on standing,

and the remainder of its analysis fails as a result. There is little doubt but that the

preliminary injunction by the District Court should be reversed. Thus, Kohler’s

FRAP 8 motion should be granted.

Conclusion

Plaintiff’s motion under FRAP 8 should be granted.

Respectfully submitted,

/s/ Christopher Wiest___________

Christopher Wiest (KBA 90725)
Chris Wiest, Atty at Law, PLLC
25 Town Center Blvd, Suite 104
Crestview Hills, KY 41017
513/257-1895 (c)
859/495-0803 (f)
chris@cwiestlaw.com

Attorney for Plaintiff/Appellant

CERTIFICATE OF SERVICE

I certify that I have served a copy of the foregoing upon Counsel for the
Defendants, this 22nd day of June, 2021, by filing same with the Court via its
CM/ECF system, which will provide notice to all parties Counsel.
/s/ Christopher Wiest___________

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CERTIFICATE OF COMPLIANCE

As required by Fed. R. App. P. 32(g) and 6th Cir. R. 32(a), I certify that this
Motion contains 2,550 words. This response complies with the typeface
requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R.
App. P. 32(a)(6) because it has been prepared in 14-point Times New Roman font
using Microsoft Word.
/s/ Christopher Wiest___________

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