Update on Second Circuit's New Haven Fire Dep't Discrimination Case

About a week ago, I blogged about Ricci v. DeStefano, in which the Second Circuit affirmed per curiam a decision involving the New Haven Fire Department. The Department had decided not to use, in the promotional process, exam results that the city found likely had a disparate impact on African American and Hispanic applicants.

The applicants filed a petition for rehearing en banc, which the Second Circuit denied 7-6.

CORRECTION: Karen Torre, the attorney for the plaintiffs wrote to tell me that she did not in fact file a petition for rehearing either with the panel or with the full court. My apologies to her for erroneously stating otherwise. The Second Circuit brought this issue up sua sponte. That seems an unusual practice to me, although my appellate practice was in the Seventh Circuit, so maybe this is standard practice for the Second. In any event, the fact that the court thought this case important enough to do that for certainly signals the difficult nature of the issues present in this case. It also may signal that the court believes the Supreme Court should take cert.

Five judges issued opinions in connection with the denial. Three of them, Judge Katzmann (deny), Judge B.D. Parker (deny), and Judge Cabranes (grant) issued these opinions simultaneously with the denial order.

Judge Katzmann stated that the denial was appropriate because the plaintiffs had filed a petition for cert with the Supreme Court, and the Second Circuit has a "longstanding tradition of general deference to panel adjudication - a tradition which holds whether or not the judges of the Court agree with the panel's disposition of the matter before it." The district court's decision, the panel decision, and the dissents and concurrences attached to the denial of rehearing would define the issues clearly enough that an opinion from the full court was unnecessary. Judge B.D. Parker added that the district court had followed the guiding authority in the circuit, and because there was such guiding authority, an additional opinion was unwarranted.

Judge Cabranes in dissent wrote,

This appeal raises important questions of first impression in our Circuit--and indeed, in the nation--regarding the application of the Fourteenth Amendment's Equal Protection Clause and Title VII's prohibition on discriminatory employment practices. At its core, this case presents a straight-forward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another? In a path-breaking opinion, which is nevertheless unpublished, the District Court answered this question in the affirmative, dismissing the case on summary judgment. A panel of this Court affirmed in a summary order containing a single substantive paragraph. . . . Three days prior to the filing of this opinion, the panel withdrew its summary order and filed a per curiam opinion adopting in toto the reasoning of the District Court, thereby making the District Court's opinion the law of the Circuit.

The use of per curiam opinions of this sort, adopting in full the reasoning of a district court without further elaboration, is normally reserved for cases that present straight-forward questions that do not require explanation or elaboration by the Court of Appeals. The questions raised in this appeal cannot be classified as such, as they are indisputably complex and far from well-settled. These questions include: Does the Equal Protection Clause prohibit a municipal employer from discarding examination results on the ground that "too many" applicants of one race received high scores and in the hope that a future test would yield more high-scoring applicants of other races? Does such a practice constitute an unconstitutional racial quota or set-aside? Should the burden-shifting framework applicable to claims of pretextual discrimination ever apply to a claim of explicit race-based discrimination in violation of Title VII? If a municipal employer claims that a race-based action was undertaken in order to comply with Title VII, what showing must the employer make to substantiate that claim? Presented with an opportunity to address en banc questions of such "exceptional importance," Fed. R. App. P. 35(a)(2), a majority of this Court voted to avoid doing so.

Judge Cabranes characterized the actions of the city differently than Judge B.D. Parker had. Judge Cabranes wrote that the city's actions were not neutral: "neutral administration and scoring that is followed by race-based treatment of examination results" may not immunize the defendants from a charge that their actions are discriminatory. In fact, this may be an explicit racial classification.

Several days after the denial, Judge Jacobs added a dissenting opinion, which focused on the Second Circuit's tradition of denying review, arguing that discretion in the rules had become a default rule of denial and that this default rule was inappropriate. A few days after that Judge Calabresi issued a separate opinion concurring in the denial. The point that he added was that while this was an interesting and important case, the parties had essentially waived the interesting and important issue, making this a poor case for review.

The judges who voted to deny review were certainly correct that the record and the arguments on both sides are pretty well developed. At the same time, it is very useful to read the full analysis that Judge Cabranes wrote to understand both sides to this issue. And considering the work that all that analysis must have taken, the only thing missing from this review is a vote by all of the judges on the merits--but that's a pretty important data point.

MM