     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                            _______________
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 mid-

14   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

                                       2
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

                                        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   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

                                      4
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



                                        5
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.

                                          6
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.

                                       7
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

                                        8
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,

                                      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.   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

                                    10
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

                                     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.      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


                                       12
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

                                     13
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.




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