United States v. City of New York

Second Circuit

United States v. City of New York

Court of Appeals for the Second Circuit·Decided August 7, 2023·No. 21-1929·Unpublished

Opinion

21-1929 United States et al. v. City of New York

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held 2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 3 on the 7th day of August, two thousand twenty-three. 4 5 PRESENT: 6 JON O. NEWMAN, 7 REENA RAGGI, 8 MYRNA PÉREZ, 9 Circuit Judges. 10 _____________________________________ 11 12 United States of America, 13 14 Plaintiff-Appellee, 15 16 Vulcan Society, Marcus Haywood, Candido Nunez, 17 Roger Gregg, Jamel Nicholson, Rusebell Wilson, 18 Kevin Walker, Kevin Simpkins, 19 20 Plaintiffs-Intervenors-Appellees, 21 22 v. No. 21-1929 23 24 City of New York, 25 26 Defendant-Appellant. * 27 _____________________________________ 28 29 30 FOR DEFENDANT-APPELLANT: JAMISON DAVIES, Assistant Corporation 31 Counsel (Richard Dearing, Deborah A. 32 Brenner, of counsel, on the brief), for Hon.

*

The Clerk of Court is respectfully directed to amend the caption as set forth above.

1 Sylvia O. Hinds-Radix, Corporation Counsel 2 of the City of New York, New York, NY. 3 4 FOR PLAINTIFF-APPELLEE: BARBARA SCHWABAUER (Bonnie I. Robin- 5 Vergeer, on the brief), Attorneys, for Kristen 6 Clarke, Assistant Attorney General, Civil 7 Rights Division, United States Department of 8 Justice, Washington, DC. 9 10 FOR PLAINTIFFS-INTERVENORS- JESSICA I. APTER (Dana E. Lossia, Robert H. 11 APPELLEES: Stroup, Rebekah Cook-Mack, on the brief), 12 Levy Ratner, P.C. (Shayana Kadidal, Center 13 for Constitutional Rights, on the brief), New 14 York, NY. 15 16 17 Appeal from a post-judgment order of the United States District Court for the Eastern

18 District of New York (Nicholas G. Garaufis, J.). 19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 20 DECREED that the order of the district court entered on June 9, 2021 is REVERSED and 21 REMANDED. 22 This is the latest iteration of a lawsuit involving the hiring practices of the New York City 23 Fire Department (“FDNY”). Defendant-appellant the City of New York (the “City”) appeals from 24 a post-judgment order finding it to have violated Paragraph 16 of the district court’s Modified 25 Remedial Order (“MRO”), a permanent injunction instituted in June 2013 after the district court 26 found that FDNY’s hiring practices had a disparate impact upon Black and Hispanic applicants. 27 See United States v. City of New York, 717 F.3d 72, 99 (2d Cir. 2013); United States v. City of New 28 York, No. 07-CV-2067 (NGG) (RLM), 2021 WL 2349500, at *1 (E.D.N.Y. June 9, 2021) (“MRO 29 Violation Op.”). Where a district court finds a violation of its order, its “interpretation of the terms 30 of the underlying order or judgment is subject to de novo review; its factual findings are accepted 31 unless they are shown to be clearly erroneous; and its ultimate ruling on the contempt motion is

1 reviewed for abuse of discretion.” Latino Officers Ass’n City of N.Y., Inc. v. City of New York, 2 558 F.3d 159, 164 (2d Cir. 2009). Applying that standard here, we conclude that the district court 3 erred in finding that the City violated Paragraph 16 of the MRO by altering, without obtaining 4 approval from the Court Monitor (the “Monitor”), the number of candidates called at a time for 5 the Candidate Physical Ability Test (“CPAT”), a physical exam that entry-level firefighters must 6 pass before entering the FDNY Academy. We assume the parties’ familiarity with the underlying 7 facts, the procedural history, and the issues on appeal, which we reference only as necessary to 8 explain our decision. 9 I. Appellate Jurisdiction 10 Plaintiff-appellee the United States of America (“the United States”) and plaintiffs- 11 intervenors-appellees (“Plaintiffs-Intervenors” and, together with the United States, the 12 “Plaintiffs”) contest this Court’s jurisdiction to review the district court’s order. Appellate review 13 of violations of judicial decrees is subject to the limitations of 28 U.S.C. § 1291, which requires 14 “final decisions.” We have held that civil contempt orders are appealable final decisions when the 15 proceedings “are instituted after the conclusion of the principal action rather than during the 16 pendency of the action.” United States v. O’Rourke, 943 F.2d 180, 186 (2d Cir. 1991) (quoting 17 Vincent v. Local 294, Int’l Bhd. of Teamsters, 424 F.2d 124, 128 (2d Cir. 1970)); see also State of 18 New York v. Shore Realty Corp., 763 F.2d 49, 51 (2d Cir. 1985) (“[A] contempt adjudication is a 19 post-judgment proceeding from which an appeal may be taken, even if some aspects of the 20 underlying litigation . . . remain to be determined.”); 15B Charles Alan Wright & Arthur R. Miller, 21 Federal Practice and Procedure § 3917 (2d ed.) (“[F]inality may be found because as a practical 22 matter nothing remains to be done, because the contempt seems separable from the remaining 23 proceedings, or because a long-continuing action yields several effectively final judgments.”); cf.

1 N.Y. Tel. Co. v. Commc’ns Workers of Am., 445 F.2d 39, 45 (2d Cir. 1971) (noting that contempt 2 orders are nonreviewable where a proceeding “was in its initial stages and the final relief was a 3 matter of conjecture”). 4 While the challenged violation order is not expressly denominated as a contempt, it is 5 sufficiently similar to support our exercise of jurisdiction. This matter before us is not a pending 6 principal action. As we have noted, it is a long-standing case, the merits of which have already 7 been decided. All that remains is enforcement of the MRO, which exists “to remedy the disparate 8 impact . . . [and] put the FDNY on a course toward future compliance with Title VII.” United 9 States v. City of New York, 717 F.3d at 99. 10 Plaintiffs’ attempt to frame the district court’s order as something other than a contempt 11 order is unpersuasive. The district court acknowledged that “[t]o determine whether the City 12 breached the MRO, [it and] the Monitor employed the legal standard for contempt of a court order 13 as set out in King v. Allied Vision, Ltd., 65 F.3d 1051, 1058 (2d Cir. 1995).” MRO Violation Op., 14 2021 WL 2349500, at *2. The district court also applied other case law that assessed the standard 15 for proving civil contempt of a court order. See id. at *4 (citing EEOC v. Local 638 . . . Local 28 16 of Sheet Metal Workers’ Int’l Ass’n, 753 F.2d 1172, 1178 (2d Cir. 1985), for the proposition that 17 willful disobedience of a district court order is not necessary to prove civil contempt of a court 18 order). 19 Because we conclude that the challenged violation order is effectively an appealable 20 contempt order, we need not discuss Plaintiffs-Intervenors’ argument that this order is not 21 appealable under the collateral order doctrine.

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21-1929 United States et al. v. City of New York

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held 2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 3 on the 7th day of August, two thousand twenty-three. 4 5 PRESENT: 6 JON O. NEWMAN, 7 REENA RAGGI, 8 MYRNA PÉREZ, 9 Circuit Judges. 10 _____________________________________ 11 12 United States of America, 13 14 Plaintiff-Appellee, 15 16 Vulcan Society, Marcus Haywood, Candido Nunez, 17 Roger Gregg, Jamel Nicholson, Rusebell Wilson, 18 Kevin Walker, Kevin Simpkins, 19 20 Plaintiffs-Intervenors-Appellees, 21 22 v. No. 21-1929 23 24 City of New York, 25 26 Defendant-Appellant. * 27 _____________________________________ 28 29 30 FOR DEFENDANT-APPELLANT: JAMISON DAVIES, Assistant Corporation 31 Counsel (Richard Dearing, Deborah A. 32 Brenner, of counsel, on the brief), for Hon.

*

The Clerk of Court is respectfully directed to amend the caption as set forth above.

1 Sylvia O. Hinds-Radix, Corporation Counsel 2 of the City of New York, New York, NY. 3 4 FOR PLAINTIFF-APPELLEE: BARBARA SCHWABAUER (Bonnie I. Robin- 5 Vergeer, on the brief), Attorneys, for Kristen 6 Clarke, Assistant Attorney General, Civil 7 Rights Division, United States Department of 8 Justice, Washington, DC. 9 10 FOR PLAINTIFFS-INTERVENORS- JESSICA I. APTER (Dana E. Lossia, Robert H. 11 APPELLEES: Stroup, Rebekah Cook-Mack, on the brief), 12 Levy Ratner, P.C. (Shayana Kadidal, Center 13 for Constitutional Rights, on the brief), New 14 York, NY. 15 16 17 Appeal from a post-judgment order of the United States District Court for the Eastern

18 District of New York (Nicholas G. Garaufis, J.). 19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 20 DECREED that the order of the district court entered on June 9, 2021 is REVERSED and 21 REMANDED. 22 This is the latest iteration of a lawsuit involving the hiring practices of the New York City 23 Fire Department (“FDNY”). Defendant-appellant the City of New York (the “City”) appeals from 24 a post-judgment order finding it to have violated Paragraph 16 of the district court’s Modified 25 Remedial Order (“MRO”), a permanent injunction instituted in June 2013 after the district court 26 found that FDNY’s hiring practices had a disparate impact upon Black and Hispanic applicants. 27 See United States v. City of New York, 717 F.3d 72, 99 (2d Cir. 2013); United States v. City of New 28 York, No. 07-CV-2067 (NGG) (RLM), 2021 WL 2349500, at *1 (E.D.N.Y. June 9, 2021) (“MRO 29 Violation Op.”). Where a district court finds a violation of its order, its “interpretation of the terms 30 of the underlying order or judgment is subject to de novo review; its factual findings are accepted 31 unless they are shown to be clearly erroneous; and its ultimate ruling on the contempt motion is

1 reviewed for abuse of discretion.” Latino Officers Ass’n City of N.Y., Inc. v. City of New York, 2 558 F.3d 159, 164 (2d Cir. 2009). Applying that standard here, we conclude that the district court 3 erred in finding that the City violated Paragraph 16 of the MRO by altering, without obtaining 4 approval from the Court Monitor (the “Monitor”), the number of candidates called at a time for 5 the Candidate Physical Ability Test (“CPAT”), a physical exam that entry-level firefighters must 6 pass before entering the FDNY Academy. We assume the parties’ familiarity with the underlying 7 facts, the procedural history, and the issues on appeal, which we reference only as necessary to 8 explain our decision. 9 I. Appellate Jurisdiction 10 Plaintiff-appellee the United States of America (“the United States”) and plaintiffs- 11 intervenors-appellees (“Plaintiffs-Intervenors” and, together with the United States, the 12 “Plaintiffs”) contest this Court’s jurisdiction to review the district court’s order. Appellate review 13 of violations of judicial decrees is subject to the limitations of 28 U.S.C. § 1291, which requires 14 “final decisions.” We have held that civil contempt orders are appealable final decisions when the 15 proceedings “are instituted after the conclusion of the principal action rather than during the 16 pendency of the action.” United States v. O’Rourke, 943 F.2d 180, 186 (2d Cir. 1991) (quoting 17 Vincent v. Local 294, Int’l Bhd. of Teamsters, 424 F.2d 124, 128 (2d Cir. 1970)); see also State of 18 New York v. Shore Realty Corp., 763 F.2d 49, 51 (2d Cir. 1985) (“[A] contempt adjudication is a 19 post-judgment proceeding from which an appeal may be taken, even if some aspects of the 20 underlying litigation . . . remain to be determined.”); 15B Charles Alan Wright & Arthur R. Miller, 21 Federal Practice and Procedure § 3917 (2d ed.) (“[F]inality may be found because as a practical 22 matter nothing remains to be done, because the contempt seems separable from the remaining 23 proceedings, or because a long-continuing action yields several effectively final judgments.”); cf.

1 N.Y. Tel. Co. v. Commc’ns Workers of Am., 445 F.2d 39, 45 (2d Cir. 1971) (noting that contempt 2 orders are nonreviewable where a proceeding “was in its initial stages and the final relief was a 3 matter of conjecture”). 4 While the challenged violation order is not expressly denominated as a contempt, it is 5 sufficiently similar to support our exercise of jurisdiction. This matter before us is not a pending 6 principal action. As we have noted, it is a long-standing case, the merits of which have already 7 been decided. All that remains is enforcement of the MRO, which exists “to remedy the disparate 8 impact . . . [and] put the FDNY on a course toward future compliance with Title VII.” United 9 States v. City of New York, 717 F.3d at 99. 10 Plaintiffs’ attempt to frame the district court’s order as something other than a contempt 11 order is unpersuasive. The district court acknowledged that “[t]o determine whether the City 12 breached the MRO, [it and] the Monitor employed the legal standard for contempt of a court order 13 as set out in King v. Allied Vision, Ltd., 65 F.3d 1051, 1058 (2d Cir. 1995).” MRO Violation Op., 14 2021 WL 2349500, at *2. The district court also applied other case law that assessed the standard 15 for proving civil contempt of a court order. See id. at *4 (citing EEOC v. Local 638 . . . Local 28 16 of Sheet Metal Workers’ Int’l Ass’n, 753 F.2d 1172, 1178 (2d Cir. 1985), for the proposition that 17 willful disobedience of a district court order is not necessary to prove civil contempt of a court 18 order). 19 Because we conclude that the challenged violation order is effectively an appealable 20 contempt order, we need not discuss Plaintiffs-Intervenors’ argument that this order is not 21 appealable under the collateral order doctrine.

1 II. Violation of the MRO 2 Under King, a contempt order is warranted where a movant establishes that: “(1) the order 3 the contemnor failed to comply with is clear and unambiguous, (2) the proof of noncompliance is 4 clear and convincing, and (3) the contemnor has not diligently attempted to comply in a reasonable 5 manner.” King, 65 F.3d at 1058. The City challenges only the district court’s application of the 6 first and third factors. 7 Paragraph 16 of the MRO states that the City “shall not take any step in any process for the 8 selection of entry-level firefighters . . . without first obtaining the approval of the . . . Monitor . . . 9 through the processes specified by the Monitor.” Joint App’x at 246 (MRO ¶ 16). Looking within 10 the four corners of the MRO, Paragraph 11 defines the “[p]rocess for the selection of entry 11 firefighters” as “refer[ring] to any and all steps taken by the City of New York to hire entry-level 12 firefighters” and provides an illustrative list of steps. Joint App’x at 244 (MRO ¶ 11). None of 13 the steps mention the CPAT at all, much less delve into the number of candidates called to take 14 the test. And Plaintiffs, in briefing and at oral argument, could not convincingly explain why 15 management of this administrative detail is necessary to further the goals of the MRO. The most 16 applicable, granular example of a qualifying step provided in Paragraph 11 is “issuing a Notice of 17 Examination to open an application period for any person to apply to take any examination to be 18 hired by the City of New York as an entry-level firefighter.” Id. 19 Even with this qualifying step as an example, however, the MRO did not “clear[ly] and 20 unambiguous[ly]” require the City to obtain approval from the Monitor before altering the number 21 of candidates called for each CPAT. King, 65 F.3d at 1058. Specifically, the MRO cannot be said 22 to have left “‘no uncertainty in the minds of those to whom it is addressed,’ who ‘must be able to 23 ascertain from the four corners of the order precisely what acts are forbidden.’” Id. (first quoting

1 Hess v. N.J. Transit Rail Operations, Inc., 846 F.2d 114, 116 (2d Cir. 1988); then quoting Drywall 2 Tapers & Pointers of Greater N.Y., Local 1974 v. Local 530 of Operative Plasterers & Cement 3 Masons Int’l Ass’n, 889 F.2d 389, 395 (2d Cir. 1989)). 4 We have considered Plaintiffs’ remaining arguments and found them to be without merit. 5 Accordingly, we REVERSE the order of the district court, and REMAND for further proceedings 6 consistent with this order.

7 8 FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk of Court

United States v. City of New York, (2d Cir. 2023).

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