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United States of America v. the City of New York

February 1, 2012


The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.


In this Memorandum and Order, the court addresses five requests by various entities: Two motions to intervene by the Uniformed Firefighters Association of Greater New York (the "Union"); one letter request to intervene by Gregory Della Valle ("Della Valle"); Defendant City of New York's request that the court authorize changes in examination objection procedure; and Plaintiff-Intervenors' motion for an entry of partial final judgment, pursuant to Federal Rule of Civil Procedure 54(b), as to Defendants Mayor Michael Bloomberg and former Fire Commissioner Nicholas Scoppetta. For the reasons discussed below, the court DENIES the first of the Union's motions to intervene and GRANTS the second; DENIES Della Valle's request to intervene; GRANTS the City's motion for modifications of examination objection procedure; and GRANTS Plaintiff-Intervenors' request for partial final judgment.*fn1


The Union has twice moved to intervene in this case. The first motion was a request to intervene as a party-defendant early in the litigation, before the court had issued either of its opinions on liability; the Union premised its request to intervene based on its interest in firefighter safety. (See Union July 27, 2007 Intervention Reply Mem. (Docket Entry # 28) at 3-5.) The court rejected the Union's request. (Sept. 5, 2007 Mem. and Order (Docket Entry # 47) at 10.) The court concluded that while the Union has an important role in protecting firefighters and therefore should be heard as an amicus, id. at 9-10, the City shared the Union's main objectives-public safety, managerial efficiency, and potential financial exposure to injured employees are all concerns of the City, which include an interest in firefighter safety-and so the Union's interests were adequately represented, id. at 6-8. The court also noted that the Union had not articulated a legally cognizable interest, i.e., a right, claim, or defense that would be affected by any liability decisions the court was considering: the Union simply could not be liable for the claims that the United States had brought against the City. (Id. at 5-6, 8-9.) The court did, however, note that the Union might have cognizable rights that were not protected by the City in an eventual remedy stage. (Id. at 11-13.) The court invited the Union to move to intervene in the future if it believed its rights would be impacted by a remedial order. (Id. at 13.)

After the court concluded that the City had violated Title VII (see July 22, 2009 Mem. & Order (Docket Entry # 294)), the Union moved to intervene in the remedial stage of the case. (Union Aug. 11, 2009 Intervention Mot. (Docket Entry # 303).) The court considered whether the Union should be able to intervene so that it could be heard on any remedial plan that granted retroactive seniority for victims of the City's violations of Title VII. (Sept. 25, 2009 Order (Docket Entry # 327) at 2.) The court denied that request. The court explained in its Order that the Union owed a duty of fair representation to all of its members, including firefighters who are also delayed-hire victims, i.e., minority firefighter candidates who were eventually hired by the City but whose hiring was delayed due to their relatively low rank on the eligible hiring list. Those delayed-hire firefighters could benefit from a remedial plan that embraced retroactive seniority. (Id. at 2-3.) The court concluded that the Union had not explained how it could speak on an issue which would be advantageous to some of its members (the delayed hire victims who potentially would receive retroactive seniority) and adverse to others. (Id. at 3.)

More recently, the Union expressed concern about another remedial issue-priority hiring for "non-hire victims," i.e., minority firefighter candidates who took entry-level firefighter Examinations 7029 or 2043 and were never hired. (See Jan. 21, 2010 Mem. & Order (Docket Entry # 390) at 23-28.) The Union asked the court by letter to require that any such candidate take and pass entry-level firefighter Examination 2000 before being considered for priority hiring.*fn2 (Union July 25, 2011 Letter (Docket Entry # 689) at 102.) The court responded by an Order which noted that the issue was open and, if the Union wished to be heard on it, the Union must move to intervene. (July 26, 2011 Order (Docket Entry # 696) at 2-3.) The Union has now done so. (Union Aug. 8, 2011 Intervention Mot. (Docket Entry # 704).)

The court must evaluate a motion for intervention as of right based on Federal Rule of Civil Procedure 24(a)(2), which allows intervention as of right only if: (1) the motion for intervention is timely; (2) the putative intervenor has interest in the existing litigation; (3) the intervenor's interest would be impaired by the outcome of the litigation; and (4) the intervenor's interest will not be adequately represented by the existing parties. See D'Amato v. Deutsche Bank, 236 F.3d 78, 84 (2d Cir. 2001). Unfortunately, the Union's motion for intervention is premised on the same interest in firefighter safety that the court considered in 2007. (Union Aug. 8, 2011 Intervention Mot. at 3-4.) As the court noted in its 2007 Memorandum and Order, the Union must prove that the City or another existing party in the litigation does not adequately represent its interest in this case. (Sept. 5, 2007 Mem. and Order at 6-7.) Just as it did then, the court concludes that the Union's interest in firefighter safety is protected by the City. A putative intervenor has a burden to prove that existing parties do not represent its interest, a burden that is "more rigorous" if the putative intervenor and an existing party share "the same ultimate objective." Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 180 (2d Cir. 2001). The City has moral, legal, financial, and political reasons to be concerned with issues that affect public safety, employee safety, and managerial efficiency. The court concludes that firefighter safety is subsumed within these issues. Moreover, several of the individual Plaintiff-Intervenors are themselves current firefighters, and, the Vulcan Society, an organization that is made up entirely of current firefighters. (United States Aug. 12, 2011 Opposition to Intervention (Docket Entry # 707) at 4.) The court thus concludes that the Plaintiff-Intervenors share the same ultimate objective as the Union-that current firefighters be safe on the job-even if they disagree on the specific issue of whether priority hires should take Exam 2000. Finally, the United States has stated expressly its concern with firefighter safety as well. (See United States Aug. 18, 2009 Opposition to Intervention (Docket Entry # 310) at 3 n.3.) The Union's stated interest-firefighter safety-is well represented in this current litigation. Perhaps more importantly, two of the existing parties-the United States and the City-now argue for the exact relief the Union seeks, i.e., that non-hire victims take Exam 2000 before being considered for priority hiring relief. (See United States Aug. 12, 2011 Opposition to Intervention at 4-5; City Aug. 12, 2011 Response to Intervention (Docket Entry # 706) at 2.) Thus, both the Union's broad objective-safety-and its specific concern-the use of Exam 2000-are represented by existing parties. The Union's inability to prove the existence of the fourth requirement for intervention-inadequacy of representation-is fatal to their motion, even assuming the Union otherwise qualifies for intervention as of right.*fn3 See United States v. City of New York, 198 F.3d 360, 364 (2d Cir. 1999).

The Court noted in its 2007 Memorandum and Order that the Union may have legally cognizable interests that are not adequately represented by the existing parties in parts of the remedy stage of this case. (Sept. 5, 2007 Mem. and Order at 12-13.) The court was clear as to what those interests might be: the interests the Union has in seniority rights that are created through the collective bargaining agreement between the Union and the City. (Id.) It is possible that priority hiring could implicate those rights. Moreover, the Union notes that the remedy of priority hiring, which is directed to individuals who are not currently firefighters, does not implicate the Union's duty of fair representation. (Union Aug. 8, 2011 Intervention Mot. at 5.) Therefore, the Union is encouraged to move for intervention as to the remedy of priority hiring and in protection of the rights given to it under a collective bargaining agreement or state law. As the court said in 2007, the Union should have a place at the bargaining table. (Sept. 5, 2007 Mem. and Order at 10.) But it must seek that place based on legally cognizable and otherwise un-represented rights. The motion to intervene is denied without prejudice.*fn4


The Union moves to intervene as of right or, in the alternative, with the court's permission as a non-aligned party so that it may oppose the City's motion for a change in examination objection procedure. (Union Jan. 10, 2012 Intervention Mot. (Docket Entry # 789).) The City agrees that the Union should be able to intervene as of right or, in the alternative, permissively. (City Jan. 17, 2012 Intervention Reply Mem. (Docket Entry # 795) at 3-4 .) The United States and Plaintiff-Intervenors do not oppose a grant of permissive intervention and do not take a position on intervention as of right, except to disagree with how broadly the Union's interest should be characterized. (Id. at 4 n.1.)

Because the existing parties do not oppose the Union's permissive intervention on this issue, the court focuses its analysis on whether the Union's request for permissive intervention should be granted. Granting a request for permissive intervention is in the court's discretion. The first requirement for such intervention is a "claim or defense that shares with the main action a common question of law or fact." Fed. R. Civ. P. 24(b)(1)(B). The court must also consider "whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights," Rule 24(b)(3), and may consider additional factors such as whether the putative intervenor will benefit from the application, the nature and extent of its interests, whether its interests are represented by the existing parties, and whether the putative intervenor will contribute to the development of the underlying factual issues. United States Postal Serv. v. Brennan, 579 F.2d 188, 191-92 (2d Cir. 1978) (quoting Spangler v. Pasadena City Board of Educ., 552 F.2d 1326, 1329 (9th Cir. 1977)).

The Union satisfies the requirement for permissive intervention. The Union claims certain statutorily-given rights for its nominee to the Exam 2000 Test Validation Board ("TVB"). (Union Jan. 10, 2012 Intervention Mem. (Docket Entry # 790) at 9-10.) As discussed in more detail in the next section, New York Civil Service Law § 50-a specifies that after the City administers a civil service entrance examination, it should create a TVB of three individuals: one chosen by the City's personnel director; one chosen by the personnel director from a list of incumbent employees nominated by the Union; and one chosen jointly by the first two. See N.Y. Civil Service Law § 50-a (McKinney 2011). Thus, one of the members of the TVB will be a member of the Union and nominated by the Union.*fn5 The Union's claims on behalf of its nominee to the TVB share a common question with the one aspect of this litigation because, as detailed in greater detail in the section below, the City asks the court to permit it to select the TVB's third member in a way which diminishes the Union's statutorily-given interest. (City Dec. 15, 2012 Examination Objection Mem. (Docket Entry # 776-1) at 11.) Thus, on the issue of the relief the City requests with regard to the TVB, the Union's legal rights are implicated in this case.

The Union has moved to intervene on this issue on the schedule the court has set (see Dec. 16, 2011 Scheduling Order (Docket Entry # 780)), and presents its opposition to the City's requested relief together with its motion to intervene. Thus, the Union's intervention on this issue is timely and will not delay the court's consideration of the City's motion; no other prejudice to the rights of the existing parties is apparent; and, as noted above, none of them object to intervention on this issue. With respect to the discretionary considerations that guide the court's decision to permit permissive intervention, none of the existing parties are ready to protect the Union's interest. Indeed, the City actively seeks the diminution of the Union's interest, and the United States and Plaintiff-Intervenors do not oppose to the City's request. ( City Dec. 15, 2012 Examination Objection Mem at 3.) Finally, because the Union is the only opponent to the City's motion, the Union's ...

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