Opinion
SUMMARY ORDER Nos. 05-2481-cv (L) 05-2693-cv (con), 06-0727-cv.
December 11, 2007.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED that these appeals are hereby DISMISSED.
Defendant-Appellant City of Bridgeport: William J. Wenzel, Pullman Comley, LLC
Defendant-Appellant Bridgeport Police Harry B. Elliot, JR., Council #15, Legal Dept. Union, AFSCME, Council #15, Local 1159, AFL-CIO:
Plaintiffs-Appellees: Sean McElligott (Antonio Ponvert III, on the brief), Koskoff Koskoff Bieder, P.C.
PRESENT: HON. JOSEPH M. MCLAUGHLIN, HON. BARRINGTON D. PARKER, HON. RICHARD C. WESLEY, Circuit Judges.
These appeals arise from rulings by a Special Master appointed in 1983 pursuant to a Remedy Order issued by the United States District Court for the District of Connecticut. Bridgeport Guardians, Inc. v. Delmonte, 553 F. Supp. 601, 621 (D. Conn. 1982) (Order signed January 7, 1983). We assume the parties' familiarity with the underlying facts and procedural history of the case.
For reasons of judicial economy and because the facts relating to the appeals are intertwined, we address both appeals together in this summary order.
In order to remedy discrimination in the assignment of minority officers to specialized divisions within the Bridgeport Police Department ("BPD"), the 1983 Remedy Order established a system whereby the BPD "shall at all times maintain assignments of black officers to positions in the specialized divisions . . . specified in ¶ 1 [(Tactical, Booking and Records, and the Police Athletic League)] on all shifts such that the percentage of black officers so assigned is at least equal to the percentage of black officers in the department." Id. at 618. The 1983 Order also established a rotation system so that "all patrol officers who desire such assignments will have equal access to assignments in the specialized divisions regardless of race." Id.
In December 1998, the City filed a motion to end the court-ordered rotation of officers. After mediation, the BPD entered into a stipulation whereby the rotation plan was modified in two respects: (1) all assignments to the Tactical (TNT) Division would rotate every two years and applicant selection would be based wholly on seniority and not race, and (2) the City would submit detailed reports on March 31, 2002 and September 1, 2003, concerning the implementation of the rotation.
On October 27, 2003 the Special Master received fourteen complaints from white TNT members seeking to avoid scheduled rotation out of the unit. The Special Master asked the district court to stay the scheduled rotations because the reports he needed in order to address the complaints were delinquent. The district court entered the stay and, after receiving the delinquent reports, the Special Master filed a report recommending monetary sanctions, imposition of additional reporting requirements, and remedial rotation of all specialized units — including those not previously subject to rotation. The Bridgeport Police Union objected that this new rotation policy would conflict with collectively bargained seniority rights.
After a hearing, the district court informed the parties that she would soon issue a written order and orally summarized parts of that order. In response to a question about a potential appeal of her order, the district court stated: "This is not a final order . . . This is an interim order that permits the function of implementation of the remedy order to go forward . . . At the end of that process, we may come up with a final order . . . but by that time it would be my objective that everyone has been appropriately heard."
The district court then filed a written opinion that ordered the BPD to "implement rotations of all non-supervisory personnel, including specialized units" and stated that "[r]otations shall be in accordance with a plan submitted to and approved by the Special Master and the Court." Bridgeport Guardians v. Delmonte, 367 F. Supp. 2d 260, 266 (D. Conn. 2005). Among other things, the opinion also ordered the Police Chief to submit a rotation plan by a certain date, required that the rotation plan fulfill certain requirements, imposed a $1,000 per day fine for late filing of a plan, and decreed that "rotations shall begin no later than Sunday, October 2, 2005." Id. (the "Rotations Ruling") The Union appealed. On May 13, 2005 the BPD filed a Motion for Reconsideration/Motion for Amendment of Judgment requesting, among other things, "eliminat[ion] from the Ruling any requirement that requires `racial balancing' in individual Specialized Units" (internal citation omitted). It is undisputed that no plan has, as yet, been formulated or approved by the district court.
On June 30, 2005, the BPD submitted a proposed rotation plan. On December 15, 2005, the City filed a "Summary Outline of Positions with Regard to Rotations" in which it reiterated its objection to minimum minority representation and proposed an alternative Emergency Alternative Rotation Plan. At the urging of the Special Master, the parties agreed to temporary implementation of this Emergency Plan. On December 16, 2005 the district court denied the Motion for Reconsideration. The City appealed.
This Court cannot reach the merits of these appeals because we lack jurisdiction. Appellants predicate jurisdiction on 28 U.S.C. §§ 1291 and 1292(a)(1). While the City contends that we should accept jurisdiction of this nonfinal order because it was a "`substantive' post-31 judgment order issued in [a] `case['] involving a protracted remedial phrase,'" Silverman v. Tracer, S.A, 255 F. 2d 87, 92 (2d Cir. 2001), we decline to do so. As directed by United States v. Yonkers Bd. of Educ., we employ a "practical" construction of § 1291 in this case. 946 F. 2d 180, 183 (2d Cir. 1991) (citation omitted). An order to submit a plan does not constitute a "final order" under § 1291, however, because it does not conclusively determine the rights of the parties. See In re Fugazy Express, 982 F.2d 769, 775 (2d Cir. 1992) ("For purposes of appealability outside of the bankruptcy context, a final order is one that conclusively determines the rights of the parties to the litigation, leaving nothing for the district court to do but execute the order").
Furthermore, the orders are not appealable as injunctions under 28 U.S.C. § 1292(a)(1). "Section 1292(a)(1) gives us jurisdiction over appeals from `[i]nterlocutory orders of the district courts of the United States . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.'" Grant v. Local 638, 373 F.3d 104, 107 (2d Cir. 2004) (quoting 28 U.S.C. § 1292(a)(1)). "Section 1292(a)(1) functions only as a narrowly tailored exception to the policy against piecemeal appellate review." Sahu v. Union Carbide Corp., 475 F.3d 465, 467 (2d Cir. 2007) (per curiam). "When an order does not involve a denial of a motion specifically addressed to injunctive relief, a party must show that the interlocutory order: (1) might have a serious, perhaps irreparable consequence; and (2) can be effectually challenged only by immediate appeal." Id. (internal citations omitted)).
In an analogous situation where the district court chose to "follow a path well-worn by equity judges overseeing complex, institutional litigation: determine liability first, then ask the parties to propose remedial plans to the court," we held that Section 1292(a)(1) did not apply. See Henrietta D. v. Giuliani, 246 F.3d 176, 182-83 (2d Cir. 2001). In doing so, this Court noted that:
the defendants' participation in the formulation of a remedial order implies no acceptance of the district judge's determinations of fact and law and no waiver of a right to appeal — any more than does the action of a losing party in any suit, either at the request of the court or of his own volition, in submitting a form of judgment conforming with findings and conclusions from which he dissents.
Id. at 183 (internal citation, alterations, and quotation marks omitted). The same logic applies here. Section 1292(a)(1) does not apply.
For all the foregoing reasons, the appeals are DISMISSED.