Bridgeport Guardians, Inc. v. Delmonte, No. 06-4764 (2d Cir. 2008)
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06-4764-cv Bridgeport Guardians, Inc. v. Delmonte 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _______________ August Term, 2007 (Argued February 6, 2008 Decided August 11, 2008) Docket No. 06-4764-cv _______________ Bridgeport Guardians, Inc., Theophilus B. Meekins, Charles D. Smith, Arthur Carter, Richard Herlihy, Thomas D. Flynn, David Daniels, Raymond Sherwood, Carlos Medina, Joe Ann Simmons, James Sheffield, Brenda Dixon, TNT Specialized Division, Plaintiffs-Appellees, William Bailey, Hispanic Society Bridgeport Police Department, Inc., Intervenors-Plaintiffs-Appellees, William H. Clendenen, Jr., Special Master, v. Arthur J. Delmonte, John Devine, John C. O'Leary, Frank Delaquila, Larry Harris, Jr., Robert Bruno, James McCarthy, Glenn Prentice, Captain William Giblin, Richard Cummings, Sgt. David J. Hoyt, All Defendants, AFSCME Council 15, Local 1159, AFL-CIO, George Zwally, Bridgeport Police Union AFSCME Council 15, AFL-CIO. Defendants, City of Bridgeport and Bridgeport Police Union, Defendants-Appellants, John Donovan, Thomas Scanlon, Robert Mangano, James Honis, James Halpin, William Chapman, Aida Remele, Albert Fedorek, Gregory Iamartino, Judd Lezotte, Thomas Sweeney, Movants, Michael Novia, USA, Board of Police Commissioners, Alfonso Losada, Rachelle Berarducci, Ramon Larrucuente, Eugene O'Neill, Kevin Boyle, Interested-Party. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _______________ Before: CARDAMONE, PARKER, and HALL, Circuit Judges. _______________ The City of Bridgeport appeals from an order entered August 14, 2006 in the United States District Court for the District of Connecticut (Arterton, J.) affirming the referral to a special master of the discrimination complaint brought by a civilian employee of the Bridgeport Police Department, and denying the City's motion to reconsider. Appeal dismissed for lack of appellate jurisdiction. _______________ AIMEE J. WOOD, Bridgeport, Connecticut (William J. Wenzel, Pullman & Comley, LLC, Bridgeport, Connecticut, of counsel), for Defendants-Appellants. SEAN K. McELLIGOTT, Bridgeport, Connecticut (Antonio Ponvert III, Koskoff, Koskoff & Bieder, P.C., Bridgeport, Connecticut, of counsel), for Plaintiffs-Appellees. _______________ 1 CARDAMONE, Circuit Judge: 2 This is an appeal from an order of the United States 3 District Court for the District of Connecticut handed down by 4 Judge Janet Bond Arterton and entered on August 14, 2006. 5 order affirmed the district court's prior referral to a special 6 master of the City of Bridgeport's objection to the same special 7 master's investigating a claim of racial discrimination made by 8 an employee of the Bridgeport Police Department. 9 The Thus, the setting for the present appeal is the City of 10 Bridgeport, Connecticut, and in particular, its police 11 department. 12 population of almost 140,000 people. 13 on Long Island Sound attracted early settlers and by the mid- 14 nineteenth century the City had grown into a substantial 15 manufacturing center. 16 Northeast, Bridgeport lost a portion of its manufacturing base, 17 and that left in its wake serious problems of unemployment and 18 crime. 19 its changed circumstances is the fact that its police department 20 has engaged in racial discrimination against the Black and 21 Hispanic officers on its force. 22 Bridgeport is Connecticut's largest city, with a Its advantageous location During the 1900s, like many cities in the One of the hurdles Bridgeport has faced in adapting to Since 1972 Bridgeport has been bound by a series of federal 23 court orders designed to remedy this discrimination. 24 order was issued in 1983 by the United States District Court for 25 the District of Connecticut and remains in force today. 26 order appointed the special master whose authority is the subject 2 A remedial That 1 of the present appeal. 2 first, the special master's authority to investigate the new 3 complaint of racial discrimination because it was brought by one 4 of the police department's civilian employees rather than a 5 police officer. 6 master's power to decide the scope of his own authority in the 7 first instance. 8 explain why our answer to that question deprives us of 9 jurisdiction to reach the merits of the City's appeal, to which 10 In this appeal, the City challenges, And, second, the City questions the special We write to address the second question, and to we now turn. 11 BACKGROUND 12 13 A. Initial Actions The instant case had its genesis in 1978 when plaintiffs, an 14 organization of Black police officers known as the Bridgeport 15 Guardians, Inc., and three individual Black police officers, sued 16 the City of Bridgeport and its Police Commissioners in the United 17 States District Court for the District of Connecticut, alleging 18 racial discrimination and free speech violations within the 19 Bridgeport Police Department (Department). 20 Guardians, Inc. v. Delmonte, 553 F. Supp. 601, 604 (D. Conn. 21 1982). 22 discrimination suits resulting in federal court orders going back 23 to 1972. 24 Civil Serv. Comm'n, 354 F. Supp. 778, 782, 798-800 & n.16 (D. 25 Conn. 1973) (enjoining use of patrolman's examination found to 26 have adverse impact on Black and Puerto Rican candidates, and See Bridgeport The Department had already been the target of a number of See Bridgeport Guardians, Inc. v. Members of Bridgeport 3 1 imposing hiring and promotion quotas to remedy past 2 discrimination), aff'd in part and rev'd in part, 482 F.2d 1333 3 (2d Cir. 1973) (holding promotion quotas unwarranted but 4 affirming in all other respects), modified order aff'd, 497 F.2d 5 1113 (2d Cir. 1974); Bridgeport Guardians v. Bridgeport Police 6 Dep't, 431 F. Supp. 931, 941 (D. Conn. 1977) (rejecting challenge 7 to Department's detective examination, but noting that the 8 "distressing absence of minority group members from the 9 supervisory ranks of the [Department] should be a cause for 10 11 continuing concern by responsible officials"). While the previous suits had focused on the disparate impact 12 of the Department's hiring and promotion procedures, the 13 plaintiffs in the 1978 suit claimed the Department was 14 intentionally discriminating against Black and Hispanic police 15 officers, and then retaliating against those who complained about 16 the violation of their constitutional rights. 17 F. Supp. at 607-18. 18 defendants' actions violated Titles VI and VII of the Civil 19 Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the First 20 Amendment of the U.S. Constitution. 21 607-18. 22 discrimination in (1) the way the Department assigned police 23 officers to its internal divisions, geographic areas, and 24 individual partners, (2) the way the Department carried out 25 disciplinary procedures, and (3) the overall environment in which 26 police officers were forced to work. See Delmonte, 553 The district court agreed, holding Delmonte, 553 F. Supp. at It specifically found a pattern of intentional 4 Id. It found Black police 1 officers were almost entirely excluded from assignments to the 2 Department's more prestigious divisions, and were effectively 3 segregated within the patrol division by being regularly paired 4 as partners with other minority officers. 5 Black and Hispanic officers in the patrol division were then 6 disproportionately assigned to high crime areas. Id. at 607-10, 12-13. Id. at 610-12. 7 In addition, the court found Black officers were very likely 8 to be disciplined or fired for conduct that was generally ignored 9 when committed by White police officers. Id. at 613-14. 10 Moreover, Black officers were frequently harassed and subjected 11 to racial slurs and disparaging remarks within the Department 12 that were not only tolerated, but also were engaged in by 13 supervisory personnel, which included the head of the Department. 14 Id. at 614-16. 15 displayed poster -- one that the court assumed was approved by 16 supervisory personnel -- in which a Black man, identified by a 17 racial epithet, was portrayed as a target to be shot at. 18 615. 19 B. Among many examples of shocking harassment was a Id. at 1983 Remedial Order of the District Court 20 To remedy these violations, the district court issued an 21 order in 1983, regulating various aspects of the Department's 22 procedures for appointments, assignments, and disciplinary 23 measures, and enjoining the defendants, as well as the 24 defendants' officers, agents, and employees, from engaging in 25 discrimination, harassment, or retaliation against Department 5 1 officers. See id. at 618-21. Among other things, the remedial 2 order appointed a "qualified, neutral Special Master" to 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 a) Review any and all disciplinary actions instituted against any black officer who claims such action is racially discriminatory in purpose or effect; and to recommend an appropriate adjustment in any such action found to be racially discriminatory as to initiation, severity of sanction or otherwise. b) Receive, investigate, and remedy all complaints of discriminatory treatment, racial harassment or slurs within the B.P.D. and, in appropriate cases, to bring disciplinary charges against those responsible and/or those supervisors who foster or permit such racial harassment to occur in violation of departmental rules. c) Review any disqualification of any black officer seeking promotion which disqualification is based on grounds of any suspension, disciplinary action, or alleged misconduct upon which such sanction was premised occurring from 1978 to the date of this Order. Id. at 619-20. 28 findings and recommendations may be appealed to the district 29 court. 30 31 The order provides that the special master's Id. at 620. C. Special Master and City Since his appointment, the special master has issued 32 numerous findings and recommendations in accordance with the 33 order. 34 master's broad powers to take all actions and measures necessary 35 or proper to implement the remedial order. 36 v. Delmonte, No. 05:78cv175 (D. Conn. May 14, 1999). 37 held the Department in contempt at least three times. 38 Bridgeport Guardians v. Delmonte, 371 F. Supp. 2d 115, 120 (D. The district court in turn has recognized the special 6 Bridgeport Guardians It has also See 1 Conn. 2005). 2 court remarked on the Department's "long history of foot-dragging 3 and non-enforcement of its racial, ethnic and sexual slur and 4 harassment policies," which it thought defied logic. 5 119-20. 6 In its April 2005 contempt ruling, the district Id. at 117, The Bridgeport Police Department has now implemented a slur 7 and harassment policy, which states that "[i]n appropriate cases, 8 Police Department employees may file a complaint with [the] 9 Special Master." The policy has been approved by the district 10 court and there are other signs that the parties may be moving 11 closer to resolving their dispute. 12 remedial order remains in effect, and the special master 13 continues to carry out his duties under it. 14 Guardians v. Delmonte, 238 F.R.D. 123 (D. Conn. 2006) (denying 15 joint motion for modification of remedy order), reconsideration 16 denied, No. 05:78cv175, 2007 WL 108472, 2007 U.S. Dist. LEXIS 17 2029 (D. Conn. Jan. 10, 2007), appeal filed, No. 07-0960 (2d Cir. 18 Mar. 9, 2007). 19 20 D. For now, however, the 1983 See Bridgeport Instant Complaint It is against this background that one of the Department's 21 civilian employees -- an African-American female typist -- 22 brought a new complaint of racial discrimination to the special 23 master's attention. 24 decisions that led to the present appeal. 25 master forwarded this new complaint to the parties and requested 26 a response, the City filed an objection with the district court. Her complaint triggered the series of 7 When the special 1 It insisted the special master's mandate is limited to complaints 2 brought by police officers, and that he lacks authority to make 3 findings and recommendations on the complaints of civilian 4 employees. 5 On December 19, 2005 the district court entered an order 6 stating that the City's "objection to the investigation of the 7 complaint . . . is referred to the Special Master in light of the 8 Court's recent approval of the stipulated slur and harassment 9 policy." The City then moved for reconsideration, which the 10 district court denied in an order entered August 14, 2006. 11 court ruled the case should remain with the special master for 12 him to determine in the first instance whether the complaint 13 falls within his purview under the remedial order and the slur 14 and harassment policy. 15 That The City now challenges Judge Arterton's denial of its 16 motion for reconsideration. It argues that the complaint of a 17 civilian employee of the Police Department falls outside the 18 special master's authority and the special master lacks authority 19 under the 1983 remedial order to determine the scope of his own 20 authority in the first instance. 21 not supply such authority, the City maintains, the district 22 court's referral of the City's objection must be considered a 23 modification to that order and a new special master appointment 24 under Federal Rule of Civil Procedure 53. 25 tells us, the referral should be overturned because the district 26 court did not comply with Rule 53. Because the remedial order does 8 As such, the City The Bridgeport Guardians aver 1 we lack jurisdiction because there is no appealable order before 2 us. 3 4 DISCUSSION A. City's Contention of Modification Under § 1292 5 If the City were correct that the district court's referral 6 of its objection constituted a modification of the 1983 remedial 7 order, then arguably we might have jurisdiction to review that 8 decision as an interlocutory order under 28 U.S.C. § 1292(a)(1). 9 See Crumpton v. Bridgeport Educ. Ass'n, 993 F.2d 1023, 1027 (2d 10 Cir. 1993) (holding that "we . . . have jurisdiction to determine 11 whether the district court's order constituted an impermissible 12 modification of the consent decree"). 13 contention is premised on a fundamental misreading of the 14 remedial order and misunderstanding of the doctrine of 15 jurisdiction to determine jurisdiction. 16 But the modification The remedial order unquestionably gives the special master 17 authority to determine the scope of his own authority in the 18 first instance. 19 "[r]eview" disciplinary actions and disqualifications and to 20 "[r]eceive, investigate and remedy" complaints. 21 this mandate, the special master must necessarily determine which 22 disciplinary actions, disqualifications, and complaints fall 23 within his purview. 24 position of acting only on cases individually referred to him by 25 the district court or some other body created to determine his 26 authority. It does this implicitly by directing him to To carry out If he could not do that, he would be in the While such a process might well have been instituted, 9 1 it plainly was not established or contemplated by the remedial 2 order in this case. 3 Nor is the City correct that the special master's 4 determination of his own authority, in the first instance, would 5 usurp powers reserved solely to Article III judges. 6 doctrine of jurisdiction to determine jurisdiction is often 7 discussed in the context of Article III courts, see, e.g., Kuhali 8 v. Reno, 266 F.3d 93, 100-01 (2d Cir. 2001), no reason suggests 9 it cannot apply in some form to other bodies as well, even those While the 10 acting in an investigatory capacity. 11 Scotch Distrib. Co., 480 F.2d 1047, 1052-53 (2d Cir. 1973) ("The 12 [SEC] must be free without undue interference or delay to conduct 13 an investigation which will adequately develop a factual basis 14 for a determination as to whether particular activities come 15 within the Commission's regulatory authority."); cf. Prosecutor 16 v. Tadic, Case No. IT-94-1-I, Decision on the Defence Motion for 17 Interlocutory Appeal on Jurisdiction, ¶ 18 (Oct. 2, 1995) 18 (concluding that international tribunals inherently possess 19 jurisdiction to determine their own jurisdiction in the absence 20 of an express agreement to the contrary); Nottebohm Case (Liech. 21 v. Guat.), 1953 I.C.J. 111, 119 (Nov. 18) (same). 22 See, e.g., SEC v. Brigadoon This is not to say that the special master's jurisdiction 23 here is the same as an Article III court's power to declare law, 24 or that the special master's jurisdictional determination would 25 have the same res judicata effect as a federal court's. 26 e.g., United States v. United Mine Workers, 330 U.S. 258, 293-95 10 See, 1 (1947) (holding that a party may be punished for disobeying a 2 court order even if the court was ultimately determined to lack 3 jurisdiction to issue the order); Chicot County Drainage Dist. v. 4 Baxter State Bank, 308 U.S. 371, 376-78 (1940) (holding that 5 courts' determinations of their own jurisdiction, "while open to 6 direct review, may not be assailed collaterally"). 7 not assign those attributes of an Article III court's 8 jurisdiction to the special master in order to hold that, like 9 any person or body with limited authority, he acts only after But we need 10 first deciding he has the authority to do so. 11 order unquestionably gives the special master this authority. 12 The 1983 remedial Without being able to argue that the remedial order has been 13 modified, the City's case for jurisdiction under 28 U.S.C. 14 § 1292(a)(1) collapses. 15 narrowly tailored exception to the policy against piecemeal 16 appellate review," and in the absence of a motion "specifically 17 addressed to injunctive relief," it requires a showing that the 18 order (1) might have a serious, perhaps irreparable consequence; 19 and (2) can be effectually challenged only by immediate appeal. 20 Sahu v. Union Carbide Corp., 475 F.3d 465, 467 (2d Cir. 2007). 21 Section 1292(a)(1) "functions only as a The City has not shown the district court's referral of the 22 complaint (much less the objection) to the special master will 23 have consequences that can be adequately challenged only by an 24 immediate appeal. 25 to the special master's authority over civilian complaints. 26 Instead, the district court has simply asked the special master There has been no determination with respect 11 1 to determine in the first instance whether this particular 2 complaint falls within his purview under the remedial order and 3 the stipulated slur and harassment policy. 4 review whether the special master may rule on the civilian 5 complaint at issue in this appeal until the special master has 6 made a determination, and the district court, in turn, has had an 7 opportunity to rule on that determination in an appealable order 8 that is then brought before us. B. This Court cannot 9 10 11 12 Reference By the District Court is not A Final Decision Under § 1291 The only other conceivable argument for appellate 13 jurisdiction in the case at hand would be if either of the 14 district court's orders could be deemed a final decision within 15 the meaning of 28 U.S.C. § 1291. 16 "ends the litigation on the merits and leaves nothing for the 17 court to do but execute the judgment." 18 Livesay, 437 U.S. 463, 467 (1978); Ibeto Petrochem. Indus. Ltd. 19 v. M/T Beffen, 475 F.3d 56, 61 (2d Cir. 2007). 20 referring a matter to a special master, however, is generally not 21 a final order appealable under 28 U.S.C. § 1291. 22 Metro. Life Ins. Co., 78 F.3d 1533, 1538 (11th Cir. 1996) 23 (holding that "[a]n order referring a matter to a special master 24 is not a final order appealable under 28 U.S.C. § 1291 because it 25 does not terminate the appellant's claim"); Loral Corp. v. 26 McDonnell Douglas Corp., 558 F.2d 1130, 1131-32 (2d Cir. 1977) 27 (finding an order of reference to a magistrate as special master 12 A final decision is one that Coopers & Lybrand v. An order See Grilli v. 1 for hearing and preparation of proposed findings not a final 2 judgment or order and therefore not appealable). 3 It is true that a different analysis may be required where a 4 final judgment has already been entered and an order is issued 5 during "a protracted remedial phase." 6 Bd. of Educ., 946 F.2d 180, 183 (2d Cir. 1991). 7 circumstances, we have held that § 1291 must be given a 8 practical, not a technical construction. 9 Tracar (In re Am. Preferred Prescription, Inc.), 255 F.3d 87, 93 United States v. Yonkers In such Id.; cf. Silverman v. 10 (2d Cir. 2001) (applying this reasoning to hold appealable the 11 appointment of a trustee in bankruptcy proceedings after the 12 confirmation of a reorganization plan). 13 Nonetheless, even under a practical approach there is 14 nothing final about the orders at issue in this case, which 15 simply recognize the special master's inherent authority, 16 discussed above, to determine his own authority under the 1983 17 remedial order. 18 circumstances like the ones we face, to treat the referral of 19 each complaint as final would have the undesirable effect of 20 turning the "protracted remedial phase" into an endless war of 21 attrition through appeal. 22 such an absurd outcome. Once a special master has been appointed in We cannot hold that § 1291 encompasses 23 The district court has neither modified the scope of the 24 1983 remedial order nor conclusively determined any rights of the 25 parties involved. 26 interlocutory order under 28 U.S.C. § 1292(a)(1) nor a final Consequently, we have before us neither an 13 1 decision under 28 U.S.C. § 1291. 2 for appellate jurisdiction present in this case. 3 lack jurisdiction to review the district court's actions, we must 4 dismiss the appeal. 5 6 7 Nor is there any other basis Having found we CONCLUSION Accordingly, for the foregoing reasons, the appeal is dismissed for lack of appellate jurisdiction. 14
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