Movants-appellants appeal from an order of the United States Court for the District of Connecticut (Arterton, J.) denying them intervention pursuant to Fed. R. Civ. P. 24(a)(2). In addition, movants-appellants appeal from an Interim Modification Order entered by the district court, contending that the order violates Title VII of the Civil Rights Act of 1964, and the Fourteenth Amendment of the Constitution. Reversed and remanded.
The opinion of the court was delivered by: Barrington D. Parker, Circuit Judge
Argued: December 14, 2009
Before: CABRANES, B.D. PARKER, Circuit Judges, and AMON, District Judge.*fn1
Appellants -- eight officers in the Bridgeport Police Department and one aspiring applicant to the police department, none of whom is African-American -- appeal from an order of the United States District Court for the District of Connecticut (Arterton, J.) denying their motions to intervene in a lawsuit filed over three decades ago by African-American officers. See J.A. 1 (noting that the initial complaint in this case was filed on May 1, 1978); Fed. R. Civ. P. 24(a)(2). Simultaneously, the movants appeal an Interim Modification Order, on the ground that the order violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Fourteenth Amendment of the United States Constitution. For the reasons expressed, we reverse the district court's denial of the motions to intervene, and we remand for reconsideration of the Interim Modification Order.
This appeal stands as the latest chapter in a lawsuit that began in 1978 when plaintiffs-appellees Bridgeport Guardians, a group of African-American police officers, filed suit under Title VI and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., § 2000e et seq., against the City of Bridgeport and the Bridgeport Police Commissioners, alleging racial discrimination in the Police Department. In 1982, after a lengthy trial, the district court (Daly, J.) found extensive discrimination in assignment, working conditions, and the disciplinary process in the Department. Bridgeport Guardians, Inc. v. Delmonte, 553 F. Supp. 601, 609-18 (D. Conn. 1982).
To remedy these violations, the district court issued a Remedy Order which set out new procedures for pairing officers and assigning officers among the specialized and geographic units. The Remedy Order also established a rotation system to ensure equal access to the specialized divisions regardless of race, and also confirmed that the City "shall not discriminate on the basis of race in the initiation of disciplinary charges or imposition of penalties" and "shall not subject any police officer to harassment, disciplinary action or different treatment of any kind because of such officer's race." Id. at 619. To oversee these changes, Judge Daly appointed a special master, awarded fees and costs to the plaintiffs, and noted that the Court would "maintain continuing jurisdiction in this matter to insure complete and continuing compliance with all aspects of this Order." Id. at 619-21.
The order has remained in effect, in various forms, for a quarter century, surviving dramatic changes in the department, the city, and the law. See Bridgeport Guardians, Inc. v. Delmonte, 248 F.3d 66, 68-73 (2d Cir. 2001) (describing the protracted litigation and affirming a district court's approval of a stipulation modifying the order). For example, in 1982, the year before Judge Daly issued factual findings and the remedial order, there were only thirty-three black police officers in the department. Bridgeport Guardians, 553 F. Supp. at 607. Today, that number has doubled to 68. See Mot. to Vacate Ex. C,Bridgeport Police Department Totals, Bridgeport Guardians,No. 78-cv-00175 (D. Conn. July 3, 2008). As of 1983, 97% of the black officers were assigned to patrol duties. Bridgeport Guardians, 553 F. Supp. at 607. Today, fewer than half of black officers are assigned to patrol duties. See Bridgeport Police Department Patrol Divisions, Mot. to Vacate Ex. E, supra. Further, in 1983, all supervisory officers were white, and no supervisory officers were black or Hispanic. Bridgeport Guardians, 553 F. Supp. at 609. Today, 15% of all supervisors are black and 32% of all supervisors are minorities. See Bridgeport Police Department Supervisory Ranks, Mot. to Vacate Ex. F, supra. Significantly, since the Remedy Order went into effect, the department has been led by two African-American Chiefs of Police. Id. Throughout this period, the only constant has been that the police department of Connecticut's third-largest city has been run under the supervision of a federal court and its appointed special master.
In July 2008, the City moved pursuant to Rule 60(b) to vacate the Remedy Order on the ground that changed circumstances rendered the order inapplicable or unnecessary.After a hearing before a magistrate judge, the Guardians and the City submitted a Joint Proposed Order, which, instead of terminating the Remedy Order, modified it. The court adopted the Joint Proposed Order in the form of an Interim Modification Order. The court further ordered that, on the motion of either party, the court would assess the impact of the interim order on or after September 1, 2010.
Among other things, the interim order requires the City to evaluate all promotional and entry-level hiring examinations to document whether selection procedures and the examination results evidence a disparate impact on minority candidates, including, but not limited to, black candidates. The order further requires the City to "take all appropriate and available steps" to mitigate any of the procedures' disparate impact on minority candidates "by utilizing race-neutral measures, including the appropriate weighting of the oral and written portions of the examination to reduce the disparate impact while preserving the validity and usefulness of the examination."
Another provision in the order requires the City to "evaluate all entry-level hiring examinations to determine whether the examination results or procedures evidence a disparate impact on minorities." That provision similarly requires the City to "attempt to reduce any identified disparate impact on minority candidates by utilizing race-neutral measures, including the appropriate weighting of the oral and written portions of the examination to reduce the disparate impact while preserving the validity and usefulness of the examination."
Near its conclusion, the Interim Modification Order provides that "[n]othing in this Order shall be used to the advantage or disadvantage of any party in collective bargaining negotiations or interest arbitrations occurring during or after the Interim Period." The Court added that "[t]his Order, related proceedings, and any changes to the operation of the Bridgeport Police Department required to comply with this Order shall be inadmissible in such negotiations and arbitrations."
In August 2008, a group of officers moved to intervene, voicing objections to the terms of the order. The motion, filed by eight white and Hispanic police officers,*fn2 argued that the terms of the Interim Modification Order would allow the City "to adopt race-conscious promotional and hiring practices," and to alter the scoring of civil-service examinations based on candidates' race or ethnicity in violation of Title VII and the Fourteenth Amendment. In November 2008, a second motion to intervene was filed by Kurt Hoben, "a white male who intends to seek hire as a police officer in the City of Bridgeport and compete in the next civil service examination process administered by the City for that ...