09-1063-cv
Bridgeport Guardians v. Delmonte
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2009
(Argued: December 14, 2009 Decided: April 27, 2010 )
Docket Nos. 09-1063-cv(L), 09-1495-cv(CON)
_________________________________
BRIDGEPORT GUARDIANS, INC., CHARLES D. SMITH , ARTHUR CARTER , RICHARD HERLIHY ,
THOMAS D. FLYNN , RAYMOND SHERWOOD , CARLOS MEDINA , JOE ANN SIMMONS, JAMES
SHEFFIELD , BRENDA DIXON , STEPHEN NELSON AND KIMBERLY PARKS,
Plaintiffs-Appellees,
THEOPHILUS B. MEEKINS AND DAVID DANIELS,
Plaintiffs,
TNT SPECIALIZED DIVISION ,
Petitioner,
WILLIAM BAILEY AND HISPANIC SOCIETY –BRIDGEPORT POLICE DEPARTMENT , INC.,
Intervenors-Plaintiffs,
– v. –
ARTHUR J. DELMONTE, JOHN DEVINE , JOHN C. O’LEARY , FRANK DELAQUILA , LARRY HARRIS,
JR., ROBERT BRUNO , JAMES MCCARTHY , CITY OF BRIDGEPORT , SGT . GLENN PRENTICE , CPT .
WILLIAM GIBLIN , RICHARD CUMMINGS, COUNCIL # 15 POLICE UNION , AND SGT . DAVID J. HOYT
Defendants-Appellees,
ALL DEFENDANTS, AFSCME, COUNCIL 15, LOCAL 1159, AFL-CIO, BRIDGEPORT POLICE UNION ,
AND GEORGE ZWALLY ,
Defendants,
TODD HOBEN , JORGE CINTRON , DAVID GARCIA , MARK BELINKIE, MARK GRAHAM , MARTIN M.
HENUE , WILLIAM REILLY , JAMES BORRICO AND KURT HOBEN ,
Movants-Appellants.
_________________________________
Before: CABRANES, B.D. PARKER, Circuit Judges, and AMON , District Judge.*
_________________________________
Movants-appellants appeal from an order of the United States Court for the District of
Connecticut (Arterton, J.) denying them intervention pursuant to Fed. R. Civ. P. 24(a)(2). In
addition, movants-appellants appeal from an Interim Modification Order entered by the district
court, contending that the order violates Title VII of the Civil Rights Act of 1964, and the
Fourteenth Amendment of the Constitution. Reversed and remanded.
__________________________________
KAREN LEE TORRE , Law Offices of Norman A Pattis, LLC,
New Haven, CT, for Movants-Appellants.
SEAN K. MCELLIGOTT , Koskoff, Koskoff & Bieder, P.C.,
Bridgeport, CT, THOMAS W. BUCCI, Willinger, Willinger &
Bucci P.C., Bridgeport, CT, for Plaintiffs-Appellees.
BETSY A. EDWARDS, Office of the City Attorney,
Bridgeport, CT, for Defendants-Appellees.
_________________________________
BARRINGTON D. PARKER, Circuit Judge:
Appellants – eight officers in the Bridgeport Police Department and one aspiring
applicant to the police department, none of whom is African-American – appeal from an order of
the United States District Court for the District of Connecticut (Arterton, J.) denying their
motions to intervene in a lawsuit filed over three decades ago by African-American officers. See
J.A. 1 (noting that the initial complaint in this case was filed on May 1, 1978); Fed. R. Civ. P.
24(a)(2). Simultaneously, the movants appeal an Interim Modification Order, on the ground that
*
The Honorable Carol B. Amon, United States District Court Judge for the Eastern
District of New York, sitting by designation.
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the order violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the
Fourteenth Amendment of the United States Constitution. For the reasons expressed, we reverse
the district court’s denial of the motions to intervene, and we remand for reconsideration of the
Interim Modification Order.
BACKGROUND
This appeal stands as the latest chapter in a lawsuit that began in 1978 when plaintiffs-
appellees Bridgeport Guardians, a group of African-American police officers, filed suit under
Title VI and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., § 2000e et seq.,
against the City of Bridgeport and the Bridgeport Police Commissioners, alleging racial
discrimination in the Police Department. In 1982, after a lengthy trial, the district court (Daly, J.)
found extensive discrimination in assignment, working conditions, and the disciplinary process
in the Department. Bridgeport Guardians, Inc. v. Delmonte, 553 F. Supp. 601, 609-18 (D. Conn.
1982).
To remedy these violations, the district court issued a Remedy Order which set out new
procedures for pairing officers and assigning officers among the specialized and geographic
units. The Remedy Order also established a rotation system to ensure equal access to the
specialized divisions regardless of race, and also confirmed that the City “shall not discriminate
on the basis of race in the initiation of disciplinary charges or imposition of penalties” and “shall
not subject any police officer to harassment, disciplinary action or different treatment of any kind
because of such officer’s race.” Id. at 619. To oversee these changes, Judge Daly appointed a
special master, awarded fees and costs to the plaintiffs, and noted that the Court would “maintain
continuing jurisdiction in this matter to insure complete and continuing compliance with all
aspects of this Order.” Id. at 619-21.
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The order has remained in effect, in various forms, for a quarter century, surviving
dramatic changes in the department, the city, and the law. See Bridgeport Guardians, Inc. v.
Delmonte, 248 F.3d 66, 68-73 (2d Cir. 2001) (describing the protracted litigation and affirming a
district court’s approval of a stipulation modifying the order). For example, in 1982, the year
before Judge Daly issued factual findings and the remedial order, there were only thirty-three
black police officers in the department. Bridgeport Guardians, 553 F. Supp. at 607. Today, that
number has doubled to 68. See Mot. to Vacate Ex. C, Bridgeport Police Department Totals,
Bridgeport Guardians, No. 78-cv-00175 (D. Conn. July 3, 2008). As of 1983, 97% of the black
officers were assigned to patrol duties. Bridgeport Guardians, 553 F. Supp. at 607. Today, fewer
than half of black officers are assigned to patrol duties. See Bridgeport Police Department Patrol
Divisions, Mot. to Vacate Ex. E, supra. Further, in 1983, all supervisory officers were white,
and no supervisory officers were black or Hispanic. Bridgeport Guardians, 553 F. Supp. at 609.
Today, 15% of all supervisors are black and 32% of all supervisors are minorities. See
Bridgeport Police Department Supervisory Ranks, Mot. to Vacate Ex. F, supra. Significantly,
since the Remedy Order went into effect, the department has been led by two African-American
Chiefs of Police. Id. Throughout this period, the only constant has been that the police
department of Connecticut’s third-largest city has been run under the supervision of a federal
court and its appointed special master.
In July 2008, the City moved pursuant to Rule 60(b) to vacate the Remedy Order on the
ground that changed circumstances rendered the order inapplicable or unnecessary. After a
hearing before a magistrate judge, the Guardians and the City submitted a Joint Proposed Order,
which, instead of terminating the Remedy Order, modified it. The court adopted the Joint
Proposed Order in the form of an Interim Modification Order. The court further ordered that, on
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the motion of either party, the court would assess the impact of the interim order on or after
September 1, 2010.
Among other things, the interim order requires the City to evaluate all promotional and
entry-level hiring examinations to document whether selection procedures and the examination
results evidence a disparate impact on minority candidates, including, but not limited to, black
candidates. The order further requires the City to “take all appropriate and available steps” to
mitigate any of the procedures’ disparate impact on minority candidates “by utilizing race-neutral
measures, including the appropriate weighting of the oral and written portions of the examination
to reduce the disparate impact while preserving the validity and usefulness of the examination.”
Another provision in the order requires the City to “evaluate all entry-level hiring
examinations to determine whether the examination results or procedures evidence a disparate
impact on minorities.” That provision similarly requires the City to “attempt to reduce any
identified disparate impact on minority candidates by utilizing race-neutral measures, including
the appropriate weighting of the oral and written portions of the examination to reduce the
disparate impact while preserving the validity and usefulness of the examination.”
Near its conclusion, the Interim Modification Order provides that “[n]othing in this Order
shall be used to the advantage or disadvantage of any party in collective bargaining negotiations
or interest arbitrations occurring during or after the Interim Period.” The Court added that “[t]his
Order, related proceedings, and any changes to the operation of the Bridgeport Police Department
required to comply with this Order shall be inadmissible in such negotiations and arbitrations.”
In August 2008, a group of officers moved to intervene, voicing objections to the terms of
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the order. The motion, filed by eight white and Hispanic police officers,1 argued that the terms of
the Interim Modification Order would allow the City “to adopt race-conscious promotional and
hiring practices,” and to alter the scoring of civil-service examinations based on candidates’ race
or ethnicity in violation of Title VII and the Fourteenth Amendment. In November 2008, a
second motion to intervene was filed by Kurt Hoben, “a white male who intends to seek hire as a
police officer in the City of Bridgeport and compete in the next civil service examination process
administered by the City for that purpose.” That motion challenged the provisions of the Interim
Modification Order requiring the City to identify and reduce any disparate impact resulting from
hiring decisions.
The district court rejected both motions. Bridgeport Guardians, Inc. v. Delmonte, 256
F.R.D. 308 (D. Conn. 2009). The court reasoned that the rank of detective would not be
immediately affected by the Interim Modification Order, and that the eight current officers’
“interest related to the process for being promoted to detective thus falls away.” Id. at 315. The
court further reasoned that these officers’ concerns about future promotions were too
“speculative and contingent” to constitute a “claimed interest” supporting intervention. Id. at
318. As to Hoben, the court reasoned that his clams regarding hiring decisions were also too
speculative to justify intervention. Id. at 316. On appeal, movants challenge this order, as well
as the legality of Interim Modification Order.2 We agree with them with respect to intervention,
and we reverse.
1
These officers are Todd Hoben, Jorge Cintron, David Garcia, Mark Belinkie, Mark
Graham, Martin Henue, William Reilly, and James Borrico.
2
The Bridgeport Police Union also appealed the district court’s entry of the Interim
Modification Order. On September 30, 2009, the Union’s appeal was withdrawn with prejudice
pursuant to a stipulation for dismissal. See Order, Bridgeport Guardians, Inc. v. Delmonte, No.
09-1284-cv (2d Cir. filed Sept. 30, 2009).
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DISCUSSION
We have jurisdiction to review the order denying the motion to intervene pursuant to 28
U.S.C. § 1291 “[b]ecause a district court’s order denying intervention is a final order.” N.Y.
News, Inc. v. Kheel, 972 F.2d 482, 485 (2d Cir. 1992). We have jurisdiction to review the
Interim Remedial Order because it is an interlocutory order modifying an injunction. See 28
U.S.C. § 1292(a)(1).
A district court has abused its discretion if it has (1) “based its ruling on an erroneous
view of the law,” (2) made a “clearly erroneous assessment of the evidence,” or (3) “rendered a
decision that cannot be located within the range of permissible decisions.” Sims v. Blot, 534 F.3d
117, 132 (2d Cir. 2008) (internal quotation marks omitted). Errors of law or fact may constitute
such abuse. SG Cowen Sec. Corp. v. Messih, 224 F.3d 79, 81 (2d Cir. 2000).
A. Motions to Intervene
Under Fed. R. Civ. P. 24(a)(2), “[o]n timely motion, the court must permit anyone to
intervene who . . . claims an interest relating to the property or transaction that is the subject of
the action, and is so situated that disposing of the action may as a practical matter impair or
impede the movant’s ability to protect its interest, unless existing parties adequately represent
that interest.” The district court’s reason for rejecting the motions to intervene was that none of
the movants could meet Rule 24(a)(2)’s “interest” requirement. For an interest to be cognizable
by Rule 24(a)(2), it must be “direct, substantial, and legally protectable.” Wash. Elec. Coop., Inc.
v. Mass. Mun. Wholesale Elec. Co., 922 F.2d 92, 97 (2d Cir. 1990). As explained below, we
think that all the movants meet this standard.
Those movants who are current police officers argue that they have a non-speculative
interest in the court’s Interim Modification Order because they wish to become detectives in
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accordance with the City’s civil-service process. They also argue that they have protectable
interests in future promotional opportunities, because of the perceived risk that the City will
engage in illegal race-norming of the tests required for promotions. These interests, they argue,
will be impaired if the City favors minority applicants in promoting officers.
The officers rely heavily upon Brennan v. New York City Board of Education, 260 F.3d
123, 130 (2d Cir. 2001). In Brennan, the United States brought a Title VII action against the
New York City Board of Education alleging that the Board engaged in employment
discrimination. The parties reached a settlement agreement that “conferred certain employment
rights on a number of persons who [were] African-American, Hispanic, Asian, or female.” Id. at
126. After the parties proposed the agreement to the district court for approval, several white,
male employees of the Board moved to intervene under Rule 24(a)(2) claiming that “intervention
was necessary to protect their present employment status– in particular, their seniority rights.”
Id. The district court denied intervention on the ground that the movants “could not assert a
cognizable interest under Rule 24(a)(2) because they had presumptively obtained their
employment status as a result of discrimination, they had no property right in that status, and any
adverse effect of the Agreement was remote and speculative.” Id.
We reversed. We noted that “the case law in numerous other circuits [had recognized]
that the kind of interest asserted by the appellants [was] cognizable under Rule 24(a)(2).” Id. at
131-32 (collecting cases). We reasoned that the agreement could potentially cause their
displacement or demotion, id. at 127, and that “the effects of a loss of relative seniority rights
should not be regarded as too speculative and remote to justify intervention save, perhaps, in a
case where a concrete effect on an employee is impossible.” Id. at 132 (footnote omitted). Thus,
we concluded that intervention was warranted because the movants’ interest in the underlying
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action and the settlement agreement was “for purposes of standing identical to that of the
[beneficiaries of the settlement agreement].” Id. at 130.
The interest put forward by the current officers is similar to the interest advanced in
Brennan. Like the movants in Brennan, appellants are white and Hispanic male employees who
claim that their employer has reached a settlement agreement in an employment discrimination
suit that violates their rights. They, like the intevenors in Brennan, have an interest in their
employers’ employment practices and, therefore, a settlement agreement that they assert infringes
their statutory and constitutional rights. Under Brennan, therefore, the current officers have
asserted an interest in their promotion that is sufficient for intervention, and have asserted that as
a practical matter the interim order could impede their rights.3 As their rights are not represented
by any other party – especially now that the Union is no longer involved – they are entitled to
intervene.
Because the officers are entitled to intervene based on their interest in their promotion, we
need not consider the district court’s further conclusion that their separately articulated interest in
future promotions was too “speculative and contingent” to warrant intervention. See Bridgeport
Guardians, 256 F.R.D. at 318. We observe, however, that in reaching this conclusion the
District Court surveyed several Title VII cases and held that appellants’ claims “conflate[d]
permissible adjusting of civil-service hiring procedures with impermissible race norming.” Id. at
317. In doing so, the court resolved a fact-intensive question that would be more properly
3
Unlike the district court, we do not find that “[t]he Movants’ interests related to the
process for being promoted to detective fall away” simply because they did not object to the
City’s assertion that it would not apply the Interim Modification Order to the extant detective list.
See Bridgeport Guardians, 256 F.R.D at 315. Notwithstanding the City’s assertion, whether the
interim order will actually affect the current detective list appears to be a fact-intensive question
that is intertwined with the merits of the officers’ claims.
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addressed after the movants have been permitted to take discovery and present evidence. See
Oneida Indian Nation v. New York, 732 F.2d 261, 265 (2d Cir. 1984) (“[E]xcept for allegations
frivolous on their face, an application to intervene cannot be resolved by reference to the ultimate
merits of the claims which the intervenor wishes to assert following intervention.”).
In a second motion to intervene, aspiring applicant Hoben claims an interest in applying
to the Department under a process which is fair and non-discriminatory. Here, we again find
Brennan instructive. In Brennan, we observed that “where a proposed intervenor’s interests are
otherwise unrepresented in an action,” the interest requirement for “intervention is no more
burdensome than the standing requirement.” Id. at 130. Because none of the other parties in this
suit are charged with representing the interests of applicants, Hoben’s interests are unrepresented,
and he need only, at this point, satisfy the standing requirement.
Hoben’s interest is similar to the interest protected in Adarand Constructors, Inc. v. Peña,
515 U.S. 200 (1995). In Adarand Constructors, the Supreme Court found that the petitioner
could challenge a statutory and regulatory framework that assisted minority-controlled small
businesses. The Court reasoned that the petitioner could show that, because he was likely to bid
on the affected contracts, the contractor bidding framework could cause imminent future harm.
515 U.S. at 211-12. The injury in Adarand was that a “discriminatory classification prevent[ed]
the plaintiff from competing on an equal footing.” Id. at 211 (quotation marks omitted).
Because Hoben represented in the district court and this Court that he intends to apply for a
Department position the next time the city offers a hiring examination, because he claims that the
interim order will prevent him from competing with minority applicants on equal footing, and
because the interests of future applicants are not otherwise represented in this case, we conclude
that he, too, may intervene.
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To be sure, “[a]n interest that is . . . contingent upon the occurrence of a sequence of
events before it becomes colorable” is not sufficient for intervention under Rule 24(a)(2). Wash.
Elec. Corp., 922 F.2d at 97. Here, however, the Interim Modification Order preempts the
Bridgeport City Charter and requires the City to take “all appropriate and available remedial
steps” to correct disparate impact both in promotions and hiring. While the City might be able to
implement the order in a number of different ways, the appellants should be allowed to at least
argue that the City cannot comply with the order without violating Title VII, or that whatever
course is chosen must comply with Title VII. It is premature at the intervention stage, and hence
not necessary, to decide whether their arguments have legal merit.
B. Discrimination Claims
Appellants request that this Court, in exercise of its discretion, vacate the district court’s
Interim Modification Order on the grounds that it violates Title VII. See Kaplan v. Rand, 192
F.3d 60, 67 (2d Cir. 1999) (“Although the general rule is that only a party of record may appeal a
judgment, a nonparty may appeal when the nonparty has an interest that is affected by the trial
court’s judgment.” (internal quotation marks omitted)). In Ricci v. DeStefano, 129 S. Ct. 2658,
2676 (2009), the Supreme Court held that an employer “may not take the greater step of
discarding [a] test altogether to achieve a more desirable racial distribution of promotion-eligible
candidates– absent a strong basis in evidence that the test was deficient and that discarding the
results is necessary to avoid violating the disparate-impact provision.”
Because the Supreme Court issued Ricci after the order appealed from, the district court
did not have the benefit of Ricci when it issued its interim order. Accordingly, we decline to
exercise our discretionary power to review the merits of the underlying order and remand so that
the district court can do so in the first instance.
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CONCLUSION
For the foregoing reasons, the order of the district court denying intervention is reversed,
and the district court is instructed to permit appellants to intervene in this action. The cause is
remanded to the District Court to reconsider the Interim Modification Order in light of (1) the
Supreme Court’s decision in Ricci v. DeStefano, 129 S. Ct. 2658 (2009), and (2) any submissions
that appellants, now parties to this action, may wish to make with respect to the Interim
Modification Order. As we remand, however, we again note that this case was filed in 1978 and
that the world has turned over many times since then. Except in highly unusual circumstances, it
is the business of cities, not federal courts or special masters, to run police departments. At some
point in time this litigation has to be ended. On remand, we are confident that the capable district
judge will look hard for that point.
12