13‐3088‐cv
Floyd v. City of New York
13‐3123‐cv
Ligon v. City of New York
14‐2829‐cv, 14‐2848‐cv
Detectives’ Endowment Ass’n, Inc. v. Floyd
14‐2834‐cv
Patrolmen’s Benevolent Ass’n v. Ligon
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2014
Nos. 13‐3088‐cv, 13‐3123‐cv, 14‐2829‐cv, 14‐2848‐cv, 14‐2834‐cv
DAVID FLOYD, ET AL.,
individually and on behalf of all others similarly situated,
Plaintiffs‐Appellees,
v.
CITY OF NEW YORK,
Defendant‐Appellant.*
JAENEAN LIGON,
individually and on behalf of her minor son, J.G.,
JACQUELINE YATES, ET AL.,
individually and on behalf of a class of all others similarly situated,
Plaintiffs‐Appellees,
By stipulation, dated March 8, 2013, the parties withdrew all claims with
*
prejudice against the individual defendants in Floyd v. City of New York. Accordingly, the
Clerk of the Court is directed to amend the official captions in Nos. 13‐3088, 14‐2829, and
14‐2848 to conform with the caption above.
v.
CITY OF NEW YORK, ET AL.,
Defendants‐Appellants.
DETECTIVES’ ENDOWMENT ASSOCIATION, INC., ET AL.,
Appellants‐Putative Intervenors,
v.
DAVID FLOYD, ET AL.,
Plaintiffs‐Appellees,
CITY OF NEW YORK,
Defendant‐Appellee.
PATROLMEN’S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK,
INC., ET AL.,
Appellants‐Putative Intervenors,
v.
JANEAN LIGON, ET AL.,
Plaintiffs‐Appellees,
CITY OF NEW YORK, ET AL.,
Defendants‐Appellees.
2
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: OCTOBER 15, 2014
DECIDED: OCTOBER 31, 2014
Before: WALKER, CABRANES, and PARKER, Circuit Judges.
These appeals present the important question of whether
public‐sector unions may intervene into a litigation where the actual
parties to that litigation, including a newly‐elected mayoral
administration, have agreed to a settlement. The intervenors in this
case, a group of police unions, endeavored to challenge the ruling of
United States District Judge Shira Scheindlin that the City of New
York’s (ʺCityʺ) “stop‐and‐frisk” policy was carried out in a
discriminatory manner, as well as her imposition of various reforms
to that policy. We previously ordered these cases to be reassigned
from Judge Scheindlin to another district judge. The case was
reassigned to United States District Judge Analisa Torres who, in a
July 30, 2014 decision, denied the unions’ motions to intervene in
these cases. The unions appealed this decision and also moved to
intervene in the underlying appeals before our Court. With a new
mayoral administration elected to office, the City entered into a
settlement with plaintiffs pursuant to which plaintiffs will not
oppose a motion by the City to terminate the District Court’s
jurisdiction after a period of five years if the City can show
3
substantial compliance with the reforms contained in Judge
Scheindlin’s remedial order. The City therefore opposes the unions’
motions, moves to voluntarily dismiss its appeals on the underlying
merits, and requests, with plaintiffs’ consent, expedited issuance of
the mandate to begin the remedial process.
We hold that the police unions’ motions to intervene are
untimely and do not assert an interest that the law seeks to protect.
The unions knew, or should have known, of their alleged interests in
these controversial and public cases well before they filed their
motions in September 2013. For years now, “stop‐and‐frisk” has
been the subject of extensive public filings and intense media
scrutiny. Whatever the merit of the unions’ claim that Judge
Scheindlin’s rulings were incorrectly premised “upon statistical
evidence purporting to place 4.4 million stops at issue,” allowing the
unions to revive a now‐settled dispute by intervening at this late
juncture would substantially prejudice the existing parties and
unduly encroach upon the City’s inherent discretion to settle a
dispute against it. In other words, granting the unions’ motions in
the wake of the November 2013 mayoral election would essentially
condone a collateral attack on the democratic process and could
erode the legitimacy of decisions made by the democratically‐elected
representatives of the people.
Furthermore, the police unions’ interests in their members’
reputations and collective bargaining rights are, as a matter of law,
too remote from “the subject of the action” to warrant intervention
as a “party.” We stress that our holding is limited to the particular
4
and highly unusual circumstances presented here and should in no
way be construed to encourage premature intervention in cases of
public concern where government defendants have discretion to
settle.
Accordingly, Judge Torres’s July 30, 2014 decision is
AFFIRMED as being within her discretion, the police unions’
motions to intervene in the appeals are DENIED, the City’s motion
for voluntary dismissal of the appeals with prejudice is GRANTED,
and the causes are REMANDED for such further proceedings before
Judge Torres as may be appropriate in the circumstances. The
mandate shall issue seven days from the date of the filing of this
opinion.
BAHER AZMY (Darius Charney, Center for
Constitutional Rights, New York, NY;
Philip A. Irwin, Eric Hellerman, Gretchen
Hoff Varner, Covington & Burling, LLP,
New York, NY; Jonathan C. Moore, Joshua
S. Moskovitz, Beldock, Levine & Hoffman,
LLP, New York, NY, on the brief), Center for
Constitutional Rights, New York, NY, for
Floyd Plaintiffs‐Appellees.
ALEXIS KARTERON (Christopher Dunn,
Jordan Wells, New York Civil Liberties
Union, New York, NY; Mariana Kovel, The
Bronx Defenders, Bronx, NY; Juan
Cartagena, LatinoJustice PRLDEF, New
5
York, NY; J. McGregor Smyth, Jr., New
York Lawyers for the Public Interest, New
York, NY; John A. Nathanson, Jeffrey J.
Resetarits, Shearman & Sterling LLP, New
York, NY, on the brief), New York Civil
Liberties Union, New York, NY, for Ligon
Plaintiffs‐Appellees.
RICHARD DEARING, Assistant Corporation
Counsel (Deborah A. Brenner, Fay Ng,
Kathy Park, on the brief), for Zachary W.
Carter, Corporation Counsel of the City of
New York, New York, NY, for City of New
York.
JOSEPH A. DIRUZZO, III (Jeffrey J. Molinaro,
on the brief), Fuerst Ittleman David &
Joseph, PL, Miami, FL, for Detectives’
Endowment Association, Inc., Lieutenants
Benevolent Association of the City of New
York, Inc., New York City Police Department
Captains Endowment Association.
ANTHONY P. COLES (Courtney G. Saleski, on
the brief), DLA Piper, New York, NY, for
Sergeants Benevolent Association.
STEVEN A. ENGEL (Edward A. McDonald,
James M. McGuire, Elisa T. Wiygul, on the
brief), Dechert LLP, New York, NY, for
Patrolmen’s Benevolent Association of the City
of New York, Inc.
6
James Reif, Gladstein, Reif & Meginniss,
LLP, New York, NY, for Amici Curiae
Grand Council of Guardians, Inc., National
Latino Officers’ Association, and 100 Blacks in
Law Enforcement Who Care.
David B. Rankin, Rankin & Taylor, PLLC,
New York, NY, for Amici Curiae
Communities United for Police Reform, et al.
Jonathan Romberg, Seton Hall University
School of Law, Center for Social Justice,
Newark, NJ, for Amici Curiae Law
Professors.
Jennifer Levy, Office of the Public
Advocate, New York, NY, for Amici Curiae
Public Advocate for the City of New York and
Members of the New York City Council.
PER CURIAM:
These appeals present the important question of whether
public‐sector unions may intervene into a litigation where the actual
parties to that litigation, including a newly‐elected mayoral
administration, have agreed to a settlement. The intervenors in this
case, a group of police unions, endeavored to challenge the ruling of
United States District Judge Shira Scheindlin that the City of New
York’s (ʺCityʺ) “stop‐and‐frisk” policy was carried out in a
7
discriminatory manner, as well as her imposition of various reforms
to that policy. We previously ordered these cases to be reassigned
from Judge Scheindlin to another district judge. The case was
reassigned to United States District Judge Analisa Torres who, in a
July 30, 2014 decision, denied the unions’ motions to intervene in
these cases. The unions appealed this decision and also moved to
intervene in the underlying appeals before our Court. With a new
mayoral administration elected to office, the City entered into a
settlement with plaintiffs pursuant to which plaintiffs will not
oppose a motion by the City to terminate the District Court’s
jurisdiction after a period of five years if the City can show
substantial compliance with the reforms contained in Judge
Scheindlin’s remedial order. The City therefore opposes the unions’
motions, moves to voluntarily dismiss its appeals on the underlying
merits, and requests, with plaintiffs’ consent, expedited issuance of
the mandate to begin the remedial process.
We hold that the police unions’ motions to intervene are
untimely and do not assert an interest that the law seeks to protect.
The unions knew, or should have known, of their alleged interests in
these controversial and public cases well before they filed their
motions in September 2013. For years now, “stop‐and‐frisk” has
been the subject of extensive public filings and intense media
scrutiny. Whatever the merit of the unions’ claim that Judge
Scheindlin’s rulings were incorrectly premised “upon statistical
evidence purporting to place 4.4 million stops at issue,” allowing the
unions to revive a now‐settled dispute by intervening at this late
8
juncture would substantially prejudice the existing parties and
unduly encroach upon the City’s inherent discretion to settle a
dispute against it. In other words, granting the unions’ motions in
the wake of the November 2013 mayoral election would essentially
condone a collateral attack on the democratic process and could
erode the legitimacy of decisions made by the democratically‐elected
representatives of the people.
Furthermore, the police unions’ interests in their members’
reputations and collective bargaining rights are, as a matter of law,
too remote from “the subject of the action” to warrant intervention
as a “party.” We stress that our holding is limited to the particular
and highly unusual circumstances presented here and should in no
way be construed to encourage premature intervention in cases of
public concern where government defendants have discretion to
settle.
Accordingly, Judge Torres’s July 30, 2014 decision is
AFFIRMED as being within her discretion, the police unions’
motions to intervene in the appeals are DENIED, the City’s motion
for voluntary dismissal of the appeals with prejudice is GRANTED,
and the causes are REMANDED for such further proceedings before
Judge Torres as may be appropriate in the circumstances. The
mandate shall issue seven days from the date of the filing of this
opinion.
9
BACKGROUND
On January 8, 2013, United States District Judge Shira A.
Scheindlin entered a preliminary injunction against defendants in
Ligon v. City of New York, finding that plaintiffs had shown “a clear
likelihood of proving at trial” that the New York City Police
Department (“NYPD”) had a practice of making unlawful trespass
“stops” outside of certain privately‐owned residential buildings in
the Bronx.1
On August 12, 2013, after a bench trial that followed plaintiffs’
withdrawal of claims for money damages and claims against
individual defendants, Judge Scheindlin issued an order in Floyd v.
City of New York, finding that the City had violated the Fourth and
Fourteenth Amendments by acting with “deliberate indifference”
toward the NYPD’s practice of making suspicionless “stops” and
“frisks” and by adopting “a policy of indirect racial profiling by
targeting racially defined groups” for “stops” and “frisks.”2 That
same day, Judge Scheindlin issued an order imposing remedies in
Floyd and Ligon in the form of various “reforms” to the NYPD’s
1 Ligon v. City of New York, 925 F. Supp. 2d 478, 524 (S.D.N.Y. 2013) (“Ligon
Liability Order”).
2 Floyd v. City of New York, 959 F. Supp. 2d 540, 562 (S.D.N.Y. 2013) (“Floyd
Liability Order”).
10
“stop and frisk” practices to be overseen by a court‐appointed
monitor.3 The City appealed in both cases and sought a stay.
On September 11 and 12, 2013, the Sergeants Benevolent
Association (“SBA”), Patrolmen’s Benevolent Association of the City
of New York (“PBA”), Detectives’ Endowment Association, Inc.
(“DEA”), New York City Police Department Captains Endowment
Association (“CEA”), and Lieutenants Benevolent Association of the
City of New York, Inc. (“LBA,” and jointly, “police unions” or the
“unions”) filed notices of appeal and motions to intervene in the
District Court. With the exception of the SBA, the police unions
moved to intervene in both Floyd and Ligon. The SBA moved to
intervene in only Floyd. While the SBA and the PBA appeal the
Liability and Remedial Orders, the DEA, the CEA, and the LBA
appeal only the Remedial Order.
On October 31, 2013, we granted the City’s motion for a stay
and ordered that the cases be reassigned from Judge Scheindlin to
another district judge.4 In an opinion, dated November 13, 2013, we
explained the reasons for that order.5 On November 1, 2013, the
cases were assigned to United States District Judge Analisa Torres.
Thereafter, an election to fill the various leadership positions
in the City’s municipal government was held on November 5, 2013,
3 Floyd v. City of New York, 959 F. Supp. 2d 668 (S.D.N.Y. 2013) (“Remedial
Order”).
4 Ligon v. City of New York, 538 F. App’x 101, 103 (2d Cir. 2013).
5 Ligon v. City of New York, 736 F.3d 118 (2d Cir. 2013).
11
leading, inter alia, to the election of a new administration. On
November 7, 2013, the police unions, with the exception of the SBA,
moved to intervene in the Floyd and Ligon appeals. On November 12,
2013, the SBA moved to intervene in only the Floyd appeal.
On February 21, 2014, on the City’s motion, we remanded the
causes to Judge Torres for the purpose of exploring settlement and
for Judge Torres to address in the first instance the police unions’
motions to intervene in the District Court actions.6 We held in
abeyance the police unions’ separate motions to intervene in the
pending appeals.7
On March 4, 2014, the parties informed Judge Torres that they
had “reached an agreement in principle for resolving the City’s
appeals in both Floyd and Ligon” pursuant to which the City would
“substantially compl[y]” with the injunctive relief set forth in Judge
Scheindlin’s Remedial Order, subject to the parties’ application to
Judge Torres to limit the term of the court‐appointed monitor to
three years. In the parties’ memorandum of law in support of their
joint motion for modification of the Remedial Order, they explained
that “[t]he parties have also agreed that when the monitorship ends,
the City will authorize the Inspector General of the NYPD . . . to
continue to monitor and report to the parties and the public” the
NYPD’s compliance with the Remedial Order. They stated that “the
parties have [also] agreed that, if the City can show it has
6 Ligon v. City of New York, 743 F.3d 362, 365 (2d Cir. 2014).
7 Id.
12
maintained substantial compliance with the aforementioned reforms
for two years following the termination of the monitorship, the Floyd
and Ligon Plaintiffs will not oppose a City motion to terminate the
Court’s jurisdiction over Floyd and the preliminary‐injunction aspect
of Ligon.” With these representations and agreements before her, on
July 30, 2014, Judge Torres granted the parties’ joint motion to
modify the Remedial Order and to enter it as an embodiment of
their agreements.
On July 30, 2014, Judge Torres also issued an order denying
the police unions’ motions to intervene, finding, inter alia, that the
motions were untimely and that the police unions did not assert a
legally protectable interest. Judge Torres held that the motions were
untimely because the unions “should have known for years . . . that
their members’ alleged reputational interests and the Unions’
collective bargaining interests were being litigated by parties who
were not invested in protecting those interests.” Judge Torres held
that plaintiffs would “face significant prejudice if previously
uninterested late‐comers are permitted to prolong the legal
wrangling and further delay plaintiffs’ hard‐won relief,” and that
“[g]ranting intervention would permit the Unions to infringe upon
the City’s prerogative to determine policing policy as manifested in
its litigation strategy.”
Judge Torres further held that the unions’ “alleged
reputational interests are not legally protectable, do not belong to
the unions, or are too conclusory and speculative to be colorable on
a motion to intervene.” Judge Torres also found that the Remedial
13
Order does not implicate the unions’ collective bargaining interests
because it neither concerns “wages,” “hours,” or “working
conditions,” nor does it prevent the unions from bargaining over
these issues. The police unions appealed.
On August 6, 2014, with the consent of plaintiffs in Floyd and
Ligon, the City moved to voluntarily dismiss its appeals, with
prejudice, pursuant to Federal Rule of Appellate Procedure 42(b),
stating that the parties “reached an agreement that resolves all the
issues raised by the City’s appeals in both Floyd and Ligon, and
clears the way for the parties to begin the anticipated remedial
process.” The motion further requests, “with the consent of all
plaintiffs, that the Court direct the expedited issuance of the
mandate in each case.”8
DISCUSSION
I.
We have previously explained that “[i]ntervention is a
procedural device that attempts to accommodate two competing
8 See Fed. R. App. P. 41(b) (“The court may shorten or extend the time [to issue
the mandate].”); Fed. R. App. P. 41(d)(1) (“The timely filing of a petition for panel
rehearing, petition for rehearing en banc, or motion for stay of mandate, stays the
mandate until disposition of the petition or motion, unless the court orders otherwise.”
(emphasis supplied)). The parties have impressed upon us the need for expedited
termination of proceedings in the Court of Appeals, so that their agreement can be
implemented promptly—indeed, they have joined in asking for expedited issuance of the
mandate. We are also mindful, however, of the need to protect any arguable rights of
others to further appellate review. Therefore, as noted, we direct the Clerk of Court to
issue the mandate seven days from the date of the filing of this opinion.
14
policies: efficiently administrating legal disputes by resolving all
related issues in one lawsuit, on the one hand, and keeping a single
lawsuit from becoming unnecessarily complex, unwieldy or
prolonged, on the other hand,” and that, “[i]n resolving the tension
that exists between these dual concerns, the particular facts of each
case are important, and prior decisions are not always reliable
guides.”9 Because of the fact‐intensive nature of an intervention
decision, we review for “abuse of discretion” a district court’s order
denying intervention as of right or by permission.10
Federal Rule of Civil Procedure 24(a) provides for
intervention as of right, stating in relevant part:
On 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.11
9 United States v. Pitney Bowes, Inc., 25 F.3d 66, 69 (2d Cir. 1994).
Catanzano by Catanzano v. Wing, 103 F.3d 223, 232 (2d Cir. 1996). See In re Sims,
10
534 F.3d 117, 132 (2d Cir. 2008) (explaining term of art “abuse of discretion”), and note 37
post.
11 Fed. R. Civ. P. 24(a) (emphasis supplied).
15
Federal Rule of Civil Procedure 24(b) provides for intervention by
permission, stating in relevant part that: “[o]n timely motion, the
court may permit anyone to intervene who . . . has a claim or defense
that shares with the main action a common question of law or
fact.”12
To be granted intervention as of right or by permission, “an
applicant must (1) timely file an application, (2) show an interest in
the action, (3) demonstrate that the interest may be impaired by the
disposition of the action, and (4) show that the interest is not
protected adequately by the parties to the action.”13 We have
underscored that a “[f]ailure to satisfy any one of these four
requirements is a sufficient ground to deny the application.”14
The District Court found that the police unions failed to meet
the first and second requirements. We conclude that the District
Court acted within its discretion in denying the unions’ motions to
intervene as of right and by permission on these grounds.
A.
We have explained that “[t]he timeliness requirement is
flexible and the decision is one entrusted to the district judge’s
12 Fed. R. Civ. P. 24(b) (emphasis supplied).
“R” Best Produce, Inc. v. Shulman‐Rabin Mktg. Corp., 467 F.3d 238, 240 (2d Cir.
13
2006) (internal quotation marks omitted).
14 Id. at 241 (internal quotation marks omitted).
16
sound discretion.”15 It “defies precise definition, although it
certainly is not confined strictly to chronology.”16 Factors to consider
in determining timeliness include: “(a) the length of time the
applicant knew or should have known of its interest before making
the motion; (b) prejudice to existing parties resulting from the
applicant’s delay; (c) prejudice to the applicant if the motion is
denied; and (d) the presence of unusual circumstances militating for
or against a finding of timeliness.”17
We conclude that Judge Torres acted within her discretion in
finding that, in the particular circumstances presented here, these factors
weighed against finding that the unions timely moved to intervene.
The unions knew, or should have known, of their asserted
interests in their members’ reputations and collective bargaining
rights well before they filed their motions in September 2013. They
argue that they did not become aware of their interests until Judge
Scheindlin’s August 12, 2013 Liability Order and Remedial Order,
which, according to the unions, were “expansive, disparaging, and
erroneous” and set forth “sweeping and disruptive” remedies.18
Regardless of whether this is true, the fact remains that the full scope
of these cases and the potential reform measures were readily
15 United States v. Yonkers Bd. of Educ., 801 F.2d 593, 594–95 (2d Cir. 1986).
16 Pitney Bowes, 25 F.3d at 70.
17 MasterCard Int’l Inc. v. Visa Int’l Serv. Ass’n, Inc., 471 F.3d 377, 390 (2d Cir. 2006)
(internal quotation marks and brackets omitted).
18 SBA Br. 23.
17
apparent from years of extensive public filings and intense media
scrutiny. These public documents regarding plaintiffs’ claims of
widespread unconstitutional “stops” and “frisks” and unlawful
racial profiling by the NYPD included the Floyd and Ligon
complaints, the class certification orders, the Ligon preliminary
injunction hearing and order, the Floyd summary judgment order,
the highly publicized Floyd bench trial, extensive briefing on
remedies, numerous amicus briefs, and countless news articles.19 It
was widely understood that the views of the incumbent municipal
administration were not shared by their likely successors. This
plethora of information should have put the unions on notice of the
potential political and judicial dangers that these cases posed to their
interests well before Judge Scheindlin’s August 12, 2013 Liability
and Remedial orders.
The unions further argue that, notwithstanding their
awareness of their interests, they did not know that the City would
not be protecting those interests until the newly‐elected New York
City Mayor, Bill de Blasio, announced on January 30, 2014 that he
19 See, e.g., Jeffrey Toobin, A Judge Takes on Stop‐and‐Frisk, The New Yorker, May
27, 2013; Mark Hamblett, Stop–and–Frisk Judge Relishes Her Independence, New York Law
Journal, May 20, 2013. Compare Editorial, When Police Violate the Constitution, N.Y. Times,
Jan. 26, 2013, at A18 (“Earlier this month, the federal judge who is presiding over three
lawsuits that challenge different parts of the program issued her harshest ruling yet,
putting the city on notice that some aspects of stop and frisk are clearly
unconstitutional.”), with Heather MacDonald, Opinion, How to Increase the Crime Rate
Nationwide, Wall Street J., June 11, 2013 (“Many New Yorkers watched the two‐and‐a‐
half‐month trial nervously, concerned that a ruling against the NYPD by U.S. District
Court Judge Shira Scheindlin could spell an end to a police practice that helped the city
achieve an astonishing drop in violent crime.”).
18
would be dropping the appeals, or at the earliest, when de Blasio
took the lead in the mayoral primary election in August 2013 and
announced his position against “stops” and “frisks.”20
As an initial matter, it is far from clear, and the unions have
not shown, that the City was ever protecting the union members’
reputations, much less their collective bargaining rights. Indeed, the
interests of employers and their employees frequently diverge,
especially in the context of municipal employment, where an
employer’s interests are often not congruent with the employee’s
and the employer may argue that the employee was acting outside
the scope of his employment.21 This inherent conflict should have
become even more apparent on March 8, 2013, when Judge
Scheindlin dismissed the individual defendants in Floyd, some of
whom were union members, pursuant to the parties’ stipulation.
On this record, we cannot say that Judge Torres abused her
discretion in finding that the unions should have known that their
“interests might not be adequately represented” far in advance of
any indication that the City might settle the dispute.22 For the same
reasons, the election of Mayor de Blasio and the City’s decision to
20 DEA Br. 19; SBA Br. 26.
See, e.g., Dunton v. Suffolk Cnty., State of N.Y., 729 F.2d 903, 907 (2d Cir. 1984),
21
amended, 748 F.2d 69 (2d Cir. 1984) (“After Monell the interests of a municipality and its
employee as defendants in a section 1983 action are in conflict.”).
Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 182 (2d Cir. 2001)
22
(emphasis supplied).
19
settle the cases was not an “unusual circumstance” militating in
favor of a finding of timeliness.23
Contrary to the unions’ contention, our decision to leave
Judge Torres’s order undisturbed will not encourage outside parties
to race to intervene in order to protect their interests whenever a
government defendant could decide to settle a lawsuit. We hold
only that, in the particular and highly unusual facts and
circumstances presented here, it should have been readily apparent
to the unions that their interests diverged from the City’s long before
the unions filed for intervention.
Judge Torres also did not err in finding that granting
intervention at this late stage would prejudice the existing parties.
The police unions moved to intervene after liability and remedies
had been adjudged. “This resembles post‐judgment intervention,
which is generally disfavored because it usually creates delay and
prejudice to existing parties . . . and undermines the orderly
administration of justice.”24 Allowing intervention at this late
23 MasterCard, 471 F.3d at 390. The unions also argue that, under United Airlines,
Inc. v. McDonald, 432 U.S. 385, 396 (1977), the analysis of their motions’ timeliness should
turn on whether they filed their motions “promptly after the entry of final judgment.” In
that case, however, the intervenor was an unnamed putative class member who became
aware that her interest was unprotected only after the denial of class certification became
appealable upon entry of final judgment and the named plaintiffs decided not to appeal.
Id. at 394. That situation is far afield from the facts and circumstances presented here,
where the unions should have known their interests were unprotected well before the
Remedial Order was entered.
United States v. Yonkers Bd. of Educ., 801 F.2d 593, 596 (2d Cir. 1986) (internal
24
citations omitted).
20
juncture would prejudice plaintiffs and the City by postponing
resolution of this now‐settled dispute and frustrating both parties’
desire to promptly engage in agreed‐upon reforms. Intervention
would disserve the balancing interest of Rule 24 in keeping a
“lawsuit from becoming unnecessarily complex, unwieldy or
prolonged.”25
Moreover, we have serious reservations about the prospect of
allowing a public‐sector union to encroach upon a duly‐elected
government’s discretion to settle a dispute against it. To
countenance this sort of practice, in this instance or any other, would
amount to condoning a collateral attack on the democratic process;
would prejudice the City; would not serve the interests served by
Rule 24; and would erode the legitimacy of decisions made by the
democratically‐elected representatives of the people.26
Our reservations deepen when we note the relatively modest
interests the unions seek to advance and to which we now turn. In
sum, we find that Judge Torres acted well within her discretion in
determining that the unions’ motions to intervene were untimely.
Pitney Bowes, 25 F.3d at 69; see also Fed. R. Civ. P. 1 (“[The Federal Rules of Civil
25
Procedure] should be construed and administered to secure the just, speedy, and
inexpensive determination of every action and proceeding.”).
Cf. Hollingsworth v. Perry, 133 S. Ct. 2652, 2668 (2013) (“We have never before
26
upheld the standing of a private party to defend the constitutionality of a state statute
when state officials have chosen not to. We decline to do so for the first time here.”).
21
B.
We also conclude that Judge Torres acted within her
discretion in finding that the unions fail to assert a legally
protectable interest—that is, an interest in “the subject of the action”
sufficient to grant them the benefits and burdens of status as a
party.27
We have made it clear that, for an interest to be “cognizable”
under Rule 24, it must be “direct, substantial, and legally
protectable.”28 In other words, “[a]n interest that is remote from the
subject matter of the proceeding, or that is contingent upon the
occurrence of a sequence of events before it becomes colorable, will
not satisfy the rule.”29
The unions assert two interests: restoring the reputations of
their members and preventing the erosion of their collective
bargaining rights.
27 Fed. R. Civ. P. 24(a).
Bridgeport Guardians, Inc. v. Delmonte, 602 F.3d 469, 473 (2d Cir. 2010) (quotation
28
marks omitted).
29 Brennan v. N.Y.C. Bd. of Educ., 260 F.3d 123, 129 (2d Cir. 2001) (quotation marks
omitted).
22
1.
Judge Torres properly held that the unions’ interest in their
members’ “reputations” is too indirect and insubstantial to be
“legally protectable.”30
The unions argue, for example, that the Liability Order
“accuses the entire NYPD of [constitutional] violations, and
identifies sergeants by name, asserts that they are untruthful, and
concludes that numerous stops that they supervised, approved, or
conducted broke the law.”31 They argue that, because the Liability
Order “brand[s] them lawbreakers and unconstitutional actors,” it
“adversely affect[s] the careers and lives” of their members and
“cast[s] doubt on the ability of other members to perform their
duties effectively while avoiding similar accusations in the future,
which in turn affects officer and public safety.”32
Judge Torres did not err in finding that the unions had
submitted no evidence to substantiate their claims of reputational
harm. Aside from their own assertions, there was no evidence in the
record showing that the union members’ careers had been tarnished,
30 Bridgeport Guardians, 602 F.3d at 473.
31 SBA Br. 31. More specifically, the unions argue that the Liability Order
“derogates the general practices and performance of NYPD sergeants, including findings
that assert the creation of ‘a culture of hostility’ perpetuated by [a NYPD sergeant];
inadequate supervision of stops by [another NYPD sergeant]; insufficient record‐keeping
by [another NYPD sergeant]; and various examples of allegedly poor supervision by
sergeants generally.” Id. at 32.
32 SBA Br. 35, 37.
23
that their safety was in jeopardy, or that they had been adversely
affected in any tangible way.
Moreover, that these lawsuits principally targeted the City
and not individual police officers became clear when plaintiffs
withdrew their claims against the individual officers in Floyd in
March of 2013. Any indirect reputational effect on individual police
officers is too “remote from the subject matter of the proceeding” to
be legally protectable.33
2.
Judge Torres also properly found that the unions’ interest in
protecting their collective bargaining rights is similarly too remote
from the subject matter of the Remedial Order to be legally
protectable.
The Remedial Order requires changes to the NYPD’s “stop‐
and‐frisk” policies, procedures, supervision, training, and
monitoring. These changes fall squarely within the “management
rights” provision of New York City Administrative Code § 12–
307(b), which exempts from mandatory collective bargaining certain
33 Brennan, 260 F.3d at 129. The unions also argue that under United States v. City
of Los Angeles, 288 F.3d 391 (9th Cir. 2002), a decision by a sister Circuit that is not binding
in this Circuit, they have an interest in the merits of a litigation that alleges constitutional
violations by police officers. In that case, however, a proposed consent decree had not yet
been entered, and the police officers were still subject to individual liability on
allegations of “misconduct and corruption.” Id. at 396. The interests of individual police
officers, and the police force generally, in City of Los Angeles were far more direct and
substantial than the reputational interest asserted by the unions here.
24
managerial prerogatives including “the methods, means and
personnel by which government operations are to be conducted.”34
Under § 12–307(b), “[i]t is the right of the city . . . [to] exercise
complete control and discretion over its organization and the
technology of performing its work.”
The unions have not shown in any meaningful way how the
reforms set forth in the Remedial Order, which embodies an
agreement between the City and plaintiffs, would have any
“practical impact” on “questions of workload, staffing and employee
safety” that are within the scope of the unions’ collective bargaining
rights.35 To the extent any provision of the settlement agreement
might be said to affect collective bargaining rights, no provision in
the agreement prevents the unions from collectively bargaining.
Indeed, the agreement of the parties—that is, the Remedial Order—
expressly invites “NYPD personnel and representatives of police
organizations” “to be heard in the reform process,” and the City
informed us at oral argument that it does not object to appropriate
collective bargaining to the extent that issues raised by the
settlement agreement would normally be subject to collective
bargaining.36
34 N.Y.C. Admin. Code § 12–307(b).
35 Id.
Floyd, 959 F. Supp. 2d at 686. We disagree with Judge Torres’s overly broad
36
statement that the unions’ collective bargaining rights are not, and cannot be, “implicated
where the unilateral changes at issue arise from a court order.” However, that apparently
unsupported proposition of law was not the basis of her otherwise sound holding.
25
On this record, we find that Judge Torres acted well within
her discretion in concluding that the unions do not assert an interest
that the law seeks to protect.37
C.
For the foregoing reasons, we conclude that Judge Torres
acted within her discretion in denying the unions’ motions as of
right and by permission.38 For substantially the same reasons, we
deny the unions’ motions to intervene in the appeals.39
We have repeatedly observed that the somewhat clunky term “abuse of
37
discretion” is a term of art, and does not necessarily mean the district court has engaged
in “abusive” conduct. More accurately, “[a] district court has abused its discretion if it
based its ruling on an erroneous view of the law or on a clearly erroneous assessment of
the evidence, . . . or rendered a decision that cannot be located within the range of
permissible decisions.” In re Sims, 534 F.3d at 132 (internal quotation marks, citations,
and brackets omitted); see generally Joseph T. Sneed, Trial–Court Discretion: Its Exercise by
Trial Courts and Its Review by Appellate Courts, 13 J. App. Prac. & Process 201, 202, 207
(2012) (commentary by the late U.S. Circuit Judge Joseph T. Sneed, a former Dean of the
Duke Law School, law professor at Stanford Law School, and Deputy U.S. Attorney
General, on the several possible meanings of “abuse of discretion”).
See Catanzano, 103 F.3d at 234 (“[A] denial of permissive intervention has
38
virtually never been reversed.”).
39 See Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am. AFL‐
CIO, Local 283 v. Scofield, 382 U.S. 205, 217 n.10 (1965) (noting that “policies underlying
intervention” under Federal Rules of Civil Procedure “may be applicable in appellate
courts”).
26
II.
Federal Rule of Appellate Procedure 42(b) provides that “[a]n
appeal may be dismissed on the appellant’s motion on terms agreed
to by the parties or fixed by the court.”40
Although we have affirmed Judge Torres’s denial of the
unions’ motion to intervene, the merits of the underlying Liability
and Remedial Orders are complex and controversial, and they
indisputably implicate serious questions of broad constitutional
importance, as well as difficult evidentiary questions concerning the
use of statistical evidence.
However, because the City has decided to exercise its right to
settle these cases on the basis of an agreement to comply with the
Remedial Order, we have no occasion to review the merits of either
Judge Scheindlin’s liability determination and challenges to the
nature of plaintiffs’ proof, or the remedies she thereafter ordered.
The liability determinations are not part of the settlement and the
Remedial Order has been accepted solely as the basis for the parties’
settlement. Thus, nothing in this opinion should be construed as
accepting or rejecting any part of the Liability and Remedial Orders
issued by Judge Scheindlin.
While the parties’ settlement may not be formally designated
a “consent decree” because it finds its basis in a post‐trial judicial
order, we understand it—and the parties confirmed this
40 Fed. R. App. P. 42(b).
27
understanding at oral argument—to operate as such.41 We
emphasize, therefore, that “[a] continuing decree of injunction
directed to events to come is subject always to adaptation as events
may shape the need.”42 Injunctions in so‐called institutional reform
litigation “often remain in force for many years, and the passage of
time frequently brings about changed circumstances—changes in
the nature of the underlying problem, changes in governing law or
its interpretation by the courts, and new policy insights—that
warrant reexamination of the original judgment.”43 As the Supreme
Court has observed, “[i]f a federal consent decree is not limited to
reasonable and necessary implementations of federal law, it may
improperly deprive future officials of their designated legislative
and executive powers.”44 As the parties agreed at oral argument and
have stated in their joint memorandum of law pertaining to the
settlement, the Remedial Order adopted by the City in settlement of
these cases is projected to expire in five years upon a showing of
substantial compliance by the City, and the monitor’s oversight will
end in three years upon the same showing.45 Moreover, the District
41 The Supreme Court has described a “consent decree” as “an agreement that the
parties desire and expect will be reflected in, and be enforceable as, a judicial decree that
is subject to the rules generally applicable to other judgments and decrees.” Rufo v.
Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 378 (1992). We note that Judge Torres’s comment
that the Remedial Order and the parties’ settlement are “not a negotiated settlement or
consent decree where the parties have voluntarily ended their legal dispute” is not
entirely accurate or relevant in the circumstances.
42 United States v. Swift & Co., 286 U.S. 106, 114 (1932).
43 Horne v. Flores, 557 U.S. 433, 448 (2009).
44 Id. at 450 (internal quotation marks, brackets, and citations omitted).
28
Court remains open to entertain proposed modifications to the
presently agreed‐upon settlement.
In the particular circumstances presented here, the City’s
motion for voluntary dismissal of the appeals, with prejudice, must
be granted.
CONCLUSION
For the reasons set forth above, Judge Torres’s July 30, 2014
decision is AFFIRMED as being an appropriate exercise of her
discretion, the police unions’ motions to intervene in the appeals are
DENIED, the City’s motion for voluntary dismissal of the appeals
with prejudice is GRANTED, and the causes are REMANDED for
such further proceedings before Judge Torres as may be appropriate
in the circumstances. The mandate shall issue seven days from the
date of the filing of this opinion.
Nothing that we have written here, or that the parties have
suggested, should foreclose any reliance by the unions on collective
bargaining rights afforded to them under the Labor Management
Relations Act and state and local law. Moreover, in view of the
possible relevance of the unions’ perspectives in any ongoing
District Court proceedings,46 nothing in this opinion should be
45 See Joint App’x A‐1200.
46 See Floyd, 959 F. Supp. 2d at 686 (stating that “NYPD personnel and
representatives of police organizations” are invited “to be heard in the reform process”);
see also text at note 36.
29
construed to inhibit the District Court from considering the interests
of the unions, either as amici curiae, or on such other terms as the
District Court may deem appropriate.
30