06-4764-cv

Bridgeport Guardians, Inc. v. Delmonte

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3

4 _______________

5

6 August Term, 2007

7

8 (Argued February 6, 2008 Decided August 11, 2008)

9

10 Docket No. 06-4764-cv

11

12 _______________

13

14 Bridgeport Guardians, Inc., Theophilus B. Meekins, Charles D. Smith,

15 Arthur Carter, Richard Herlihy, Thomas D. Flynn, David Daniels,

16 Raymond Sherwood, Carlos Medina, Joe Ann Simmons, James Sheffield,

17 Brenda Dixon, TNT Specialized Division,

18

19 Plaintiffs-Appellees,

20

21 William Bailey, Hispanic Society Bridgeport

22 Police Department, Inc.,

23

24 Intervenors-Plaintiffs-Appellees,

25

26 William H. Clendenen, Jr.,

27

28 Special Master,

29

30 v.

31

32 Arthur J. Delmonte, John Devine, John C. O'Leary, Frank Delaquila,

33 Larry Harris, Jr., Robert Bruno, James McCarthy, Glenn Prentice, 

34 Captain William Giblin, Richard Cummings, Sgt. David J. Hoyt, All 

35 Defendants, AFSCME Council 15, Local 1159, AFL-CIO, George Zwally,

36 Bridgeport Police Union AFSCME Council 15, AFL-CIO.

37

38 Defendants,

39

40 City of Bridgeport and Bridgeport Police Union,

41

42 Defendants-Appellants,

43

44 John Donovan, Thomas Scanlon, Robert Mangano, James Honis, James 

45 Halpin, William Chapman, Aida Remele, Albert Fedorek,

46 Gregory Iamartino, Judd Lezotte, Thomas Sweeney,

47

48 Movants,

49

50 Michael Novia, USA, Board of Police Commissioners, Alfonso Losada,

51 Rachelle Berarducci, Ramon Larrucuente, Eugene O'Neill, Kevin Boyle,

52

53 Interested-Party.
1 _______________

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 _______________
2

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 subject
3

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, and
4

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 police
5

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 Department
6

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 aver
9

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, 293-95
11

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 master
12

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 master
13

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 final
14

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.