United States v. New York

112 F.R.D. 165, 41 Fair Empl. Prac. Cas. (BNA) 1558, 1986 U.S. Dist. LEXIS 20293, 41 Empl. Prac. Dec. (CCH) 36,626
CourtDistrict Court, N.D. New York
DecidedSeptember 17, 1986
DocketNo. 77-CV-343
StatusPublished
Cited by3 cases

This text of 112 F.R.D. 165 (United States v. New York) is published on Counsel Stack Legal Research, covering District Court, N.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. New York, 112 F.R.D. 165, 41 Fair Empl. Prac. Cas. (BNA) 1558, 1986 U.S. Dist. LEXIS 20293, 41 Empl. Prac. Dec. (CCH) 36,626 (N.D.N.Y. 1986).

Opinion

MEMORANDUM-DECISION and ORDER

JAMES T. FOLEY, Senior District Judge.

This action was commenced on September 8, 1977 by the filing of a complaint for the United States of America against the State of New York alleging discriminatory hiring practices by the New York State Police with respect to Negroes, Spanish-surnamed Americans and women. A trial of the serious issues was concluded before me after a trial of 24 days on July 21, 1978. A decision of 255 findings of fact and 36 conclusions of law was filed on September 6, 1979. On October 19, 1979, the final decree was agreed upon and entered. The important ruling relevant to discussion in this memorandum was the direction to the state defendants to include in their future appointments to the position of trooper qualified Negroes and Spanish-surnamed Americans totalling approximately 40% of each class until the total representation of such group of individuals approximately reflects their composition in the relevant labor market, which is 10.8% and 3.36% respectively. (underscoring supplied). The summary and explanation of my substantial decision and the history of the litigation to that point is reported in United States of America v. State of New York, 475 F.Supp. 1103 (N.D.N.Y.1979). Other important decisions by me in the action followed and are reported in 99 F.R.D. 130 (N.D.N.Y.1983) (denial of motion by American Indian to intervene), and 593 F.Supp. 1216 (N.D.N.Y.1984) (ruling that after a five day evidentiary hearing there was failure of proof on the part of the United States to support its contention that there existed an atmosphere of racial discrimination and harassment of some Negro and Hispanic memment of some Negro and Hispanic members of the 1981 Trooper Academy Class at the State Police Academy). Several unre[167]*167ported decisions are important to the ruling to be made herein. One Memorandum-Decision and Order of November 18, 1977, pgs. 18-19, granted the motion of the defendants to join as defendants in the action certain named white males as individuals alleged to have an interest in the subject of the action. A Memorandum-Decision and Order of December 23, 1977 joined the nine individuals as defendants in the action, noting that they or their attorneys stated in affidavits that their interest in the lawsuit is identical to that of the Attorney General of the State of New York and they feel that their interest will be adequately represented by him.

On August 26, 1986, there was filed in the Clerk’s office in Albany, New York a voluminous Notice of Motion and Motions supported by affidavits and Exhibits A through E in behalf of Craig G. Smith and Michael L. McMahon, and all those similarly situated, to intervene in this action pursuant to Fed.R.Civ.P. 24. Intervention is sought to assert the claims in a submitted proposed complaint, that Smith and McMahon, and their class if certified, are persons as white males who have been denied admission to the classes of the New York State Troopers Academy arising from the 1985 eligibility lists and have higher rankings than Blacks and Spanish-surnamed American males who have been offered admission to such classes with lower rankings, resulting in a reverse discriminatory impact upon white male applicants. The motion was made returnable by the proposed intervenors on Monday, September 15, 1986. A substantial memorandum of law was filed with the motion, and the return date for argument was changed upon request to Wednesday, September 17, 1986, to afford more time for briefs to be filed in behalf of the State of New York and the United States in response to the motion. Such briefs were filed on September 12 and September 15, 1986, and both are in strong opposition to the grant of the motion to intervene. Oral argument on the motion was heard today, September 17, 1986, at 10:00 A.M. If intervention is granted, included in the Notice is a motion pursuant to Fed.R.Civ.P. 60(b)(5) suspending and/or modifying the 40% Black and Spanish-surnamed American hiring goal applicable to the New York State Trooper applicants as ordered in the final decree entered October 19, 1979, and a motion pursuant to Fed.R.Civ.P. 23 certifying as a class all white male applicants whose ranking in the 1985 eligibility list would have caused them to be admitted but for the 40% minority hiring decree. A modification of a decree of the kind in this action is not easily attainable. See United States v. N.A.A.C.P., 779 F.2d 881 (2d Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986).

The threshold motion for intervention is briefed as one to intervene as of right pursuant to Fed.R.Civ.P. 24(a), or alternatively, for permissive intervention pursuant to Fed.R.Civ.P. 24(b). In my judgment, after careful consideration and appraisal of all the circumstances and settled federal case law, the grant of the motion for intervention as of right or permissive intervention would be unwarranted and unjustified. Untimeliness is evident per se, when a seven year period has elapsed since the entry of the final decree deciding after a trial the issues in this action. An appeal was not filed from the final decree by the United States or the defendants, and its good faith implementation has resulted in a more acceptable representation of Negroes and Spanish-surnamed members on the New York State Police, that I have characterized from the beginning as a superior police force. See 475 F.Supp. at 1109.

The factors to be weighed on a motion for intervention have been extensively covered in text writings and opinions of the federal courts. Whether intervention is claimed as of right or as permissive under Fed.R.Civ.P. 24, the application must be timely, and timeliness is to be determined from all the circumstances. N.A.A.C.P. v. New York, 413 U.S. 345, 365-66, 93 S.Ct. 2591, 2602-03, 37 L.Ed.2d 648 (1973). A presumption exists that a motion to intervene after entry of a decree should be denied except in extraordinary circumstanc[168]*168es. Delaware Valley Citizens’ Council v. Commonwealth of Pennsylvania, 674 F.2d 970, 974 (3rd Cir.1982); Crown Financial Corporation v. Winthrop Lawrence Corporation, 531 F.2d 76, 77 (2d Cir.1976); Firebird Society, Incorporated v. New Haven Board of Fire Commissioners, 66 F.R.D. 457, 464-66 (D.Conn.), aff'd. mem., 515 F.2d 504 (2d Cir.), cert. denied, 423 U.S. 867, 96 S.Ct. 128, 46 L.Ed.2d 96 (1975); 3B J. Moore & J. Kennedy, Moore’s Federal Practice, ¶ 24.13 at 24-154-155 (2d ed. 1985). Knowledge of the entry of the decree and adequate representation by the original parties of the particular interest asserted by the proposed intervenor are important considerations.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. New York
711 F. Supp. 699 (N.D. New York, 1989)
United States v. New York
820 F.2d 554 (Second Circuit, 1987)
United States v. State Of New York
820 F.2d 554 (Second Circuit, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
112 F.R.D. 165, 41 Fair Empl. Prac. Cas. (BNA) 1558, 1986 U.S. Dist. LEXIS 20293, 41 Empl. Prac. Dec. (CCH) 36,626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-new-york-nynd-1986.