06 -47 64 -cv Bridgepor

t G uardia ns,Inc . v. Delmonte 1 UNI TEDSTATE S C OURT O F APPEALS 2 FORTH E S ECOND CIRCUI T 3 4

___ ___ ___ ___ ___ 5 6 AugustTe rm, 20 07 7 8 (Ar gue d F ebr uary 6 , 2 008 De cid ed August11 , 2 008 ) 9 10 Doc ketNo . 0 6-4 764 -cv 11 12

___ ___ ___ ___ ___ 13 14 Bri dge por t Guar dia ns, In c., Th eop hil us B. Mee kin s, Cha rle s D . S mit h, 15 Art hurCa rte r, Ric har d H erl ihy , T homas D. Fly nn, DavidDa nie ls, 16 Raymon d S herwoo d, Car los Me din a, JoeAn n S immons , J ame s S hef fie ld, 17 Bre ndaDi xon , TNT Spe cia liz ed Div isi on, 18 19 P lai nti ffs -Appel lee s, 20 21 Wil liam B ail ey, Hi spa nic So cie ty Bri dge por t 22 Pol iceDe par tme nt, In c., 23 24 I nte rve nor s-P lai nti ffs -Appel lee s, 25 26 Wil liam H . C len den en, Jr ., 27 28 S pec ialMa ste r, 29 30 v. 31 32 Art hurJ. De lmo nte , JohnDe vin e, Joh n C . O 'Le ary , F ran k D elaqui la, 33 Lar ry Har ris , J r., Ro ber t B run o, James McC art hy, Gl ennPr ent ice , 34 Cap tai n W ill iam Gi bli n, Ric har d C umming s, Sgt . D avi d J . H oyt , A ll 35 Def end ant s, AFS CMECo unc il 15, Lo cal11 59, AF L-C IO, Ge org e Z wal ly, 36 Bri dge por t P oli ce Uni on AFS CMECo unc il 15, AF L-C IO. 37 38 D efe nda nts , 39 40 Cit y o f B rid gep ortan d B rid gep ortPo lic e U nio n, 41 42 D efe nda nts -Appel lan ts, 43 44 Joh n D onovan , T homas Sca nlo n, Rob ertMa nga no, James Ho nis , J ame s 45 Hal pin , W ill iam Ch apman, Ai da Remele , A lbe rt Fedore k, 46 Gre gory I ama rti no, Ju dd Lez ott e, Thomas Sween ey, 47 48 Mova nts , 49 50 Mic hae l N ovi a, USA , B oar d o f P oli ce Com mis sio ner s, Alf ons o L osa da, 51 Rac hel le Ber arducc i, Ramon Lar ruc uen te, Eu gen e O 'Ne ill , K evi n B oyl e, 52 53 I nte res ted -Pa rty .1

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2 3 Before: 4 CARDAMONE, PARKER, and HALL, 5 Circuit Judges. 6 7

_______________ 8 9 The City of Bridgeport appeals from an order entered August 10 14, 2006 in the United States District Court for the District of 11 Connecticut (Arterton, J.) affirming the referral to a special 12 master of the discrimination complaint brought by a civilian 13 employee of the Bridgeport Police Department, and denying the 14 City's motion to reconsider. 15 16 Appeal dismissed for lack of appellate jurisdiction. 17 18

_______________ 19 20 AIMEE J. WOOD, Bridgeport, Connecticut (William J. Wenzel, 21 Pullman & Comley, LLC, Bridgeport, Connecticut, of counsel), 22 for Defendants-Appellants. 23 24 SEAN K. McELLIGOTT, Bridgeport, Connecticut (Antonio Ponvert III, 25 Koskoff, Koskoff & Bieder, P.C., Bridgeport, Connecticut, of 26 counsel), for Plaintiffs-Appellees. 27 28

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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. The 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 Thus, the setting for the present appeal is the City of 10 Bridgeport, Connecticut, and in particular, its police 11 department. Bridgeport is Connecticut's largest city, with a 12 population of almost 140,000 people. Its advantageous location 13 on Long Island Sound attracted early settlers and by the mid14 nineteenth century the City had grown into a substantial 15 manufacturing center. During the 1900s, like many cities in the 16 Northeast, Bridgeport lost a portion of its manufacturing base, 17 and that left in its wake serious problems of unemployment and 18 crime. One of the hurdles Bridgeport has faced in adapting to 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 Since 1972 Bridgeport has been bound by a series of federal 23 court orders designed to remedy this discrimination. A remedial 24 order was issued in 1983 by the United States District Court for 25 the District of Connecticut and remains in force today. That 26 order appointed the special master whose authority is the subject3

1 of the present appeal. In this appeal, the City challenges, 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. And, second, the City questions the special 6 master's power to decide the scope of his own authority in the 7 first instance. We write to address the second question, and to 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 we now turn. 11 BACKGROUND 12 A. Initial Actions 13 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). See Bridgeport 20 Guardians, Inc. v. Delmonte, 553 F. Supp. 601, 604 (D. Conn. 21 1982). The Department had already been the target of a number of 22 discrimination suits resulting in federal court orders going back 23 to 1972. See Bridgeport Guardians, Inc. v. Members of Bridgeport 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, and4

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 continuing concern by responsible officials"). 11 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. See Delmonte, 553 17 F. Supp. at 607-18. The district court agreed, holding 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. Delmonte, 553 F. Supp. at 21 607-18. It specifically found a pattern of intentional 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. Id. It found Black police5

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. Id. at 607-10, 12-13. 5 Black and Hispanic officers in the patrol division were then 6 disproportionately assigned to high crime areas. 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. Among many examples of shocking harassment was a 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. Id. at 18 615. 19 B. 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 Department6

1 officers. See id. at 618-21. Among other things, the remedial 2 order appointed a "qualified, neutral Special Master" to 3 a) Review any and all disciplinary actions 4 instituted against any black officer who 5 claims such action is racially discriminatory 6 in purpose or effect; and to recommend an 7 appropriate adjustment in any such action 8 found to be racially discriminatory as to 9 initiation, severity of sanction or 10 otherwise. 11 b) Receive, investigate, and remedy all 12 complaints of discriminatory treatment, 13 racial harassment or slurs within the B.P.D. 14 and, in appropriate cases, to bring 15 disciplinary charges against those 16 responsible and/or those supervisors who 17 foster or permit such racial harassment to 18 occur in violation of departmental rules. 19 c) Review any disqualification of any black 20 officer seeking promotion which 21 disqualification is based on grounds of any 22 suspension, disciplinary action, or alleged 23 misconduct upon which such sanction was 24 premised occurring from 1978 to the date of 25 this Order. 26 27 Id. at 619-20. The order provides that the special master's 28 findings and recommendations may be appealed to the district 29 court. Id. at 620. 30 C. Special Master and City 31 Since his appointment, the special master has issued 32 numerous findings and recommendations in accordance with the 33 order. The district court in turn has recognized the special 34 master's broad powers to take all actions and measures necessary 35 or proper to implement the remedial order. Bridgeport Guardians 36 v. Delmonte, No. 05:78cv175 (D. Conn. May 14, 1999). It has also 37 held the Department in contempt at least three times. See 38 Bridgeport Guardians v. Delmonte, 371 F. Supp. 2d 115, 120 (D.7

1 Conn. 2005). In its April 2005 contempt ruling, the district 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. Id. at 117, 5 119-20. 6 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. For now, however, the 1983 12 remedial order remains in effect, and the special master 13 continues to carry out his duties under it. See Bridgeport 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 D. Instant Complaint 20 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. Her complaint triggered the series of 24 decisions that led to the present appeal. When the special 25 master forwarded this new complaint to the parties and requested 26 a response, the City filed an objection with the district court.8

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. That 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 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. Because the remedial order does 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. As such, the City 25 tells us, the referral should be overturned because the district 26 court did not comply with Rule 53. The Bridgeport Guardians aver9

1 we lack jurisdiction because there is no appealable order before 2 us. 3 DISCUSSION 4 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"). But the modification 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 The remedial order unquestionably gives the special master 17 authority to determine the scope of his own authority in the 18 first instance. It does this implicitly by directing him to 19 "[r]eview" disciplinary actions and disqualifications and to 20 "[r]eceive, investigate and remedy" complaints. To carry out 21 this mandate, the special master must necessarily determine which 22 disciplinary actions, disqualifications, and complaints fall 23 within his purview. If he could not do that, he would be in the 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. While such a process might well have been instituted,10

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. While the 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 10 acting in an investigatory capacity. See, e.g., SEC v. Brigadoon 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 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. See, 26 e.g., United States v. United Mine Workers, 330 U.S. 258, 293-9511

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"). But we need 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 10 first deciding he has the authority to do so. The 1983 remedial 11 order unquestionably gives the special master this authority. 12 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. Section 1292(a)(1) "functions only as a 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 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. There has been no determination with respect 25 to the special master's authority over civilian complaints. 26 Instead, the district court has simply asked the special master12

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. This Court cannot 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. 9 B. Reference By the District Court is not 10 A Final Decision Under § 1291 11 12 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. A final decision is one that 16 "ends the litigation on the merits and leaves nothing for the 17 court to do but execute the judgment." Coopers & Lybrand v. 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). An order 20 referring a matter to a special master, however, is generally not 21 a final order appealable under 28 U.S.C. § 1291. See Grilli v. 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 master13

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." United States v. Yonkers 6 Bd. of Educ., 946 F.2d 180, 183 (2d Cir. 1991). In such 7 circumstances, we have held that § 1291 must be given a 8 practical, not a technical construction. Id.; cf. Silverman v. 9 Tracar (In re Am. Preferred Prescription, Inc.), 255 F.3d 87, 93 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. Once a special master has been appointed in 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. We cannot hold that § 1291 encompasses 22 such an absurd outcome. 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. Consequently, we have before us neither an 26 interlocutory order under 28 U.S.C. § 1292(a)(1) nor a final14

1 decision under 28 U.S.C. § 1291. Nor is there any other basis 2 for appellate jurisdiction present in this case. Having found we 3 lack jurisdiction to review the district court's actions, we must 4 dismiss the appeal. 5 CONCLUSION 6 Accordingly, for the foregoing reasons, the appeal is 7 dismissed for lack of appellate jurisdiction.