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It is not often that the U.S. Court of Appeals for the Second Circuit decides to rehear a case en banc and it is even rarer when the judges disagree so publicly over the decision. On June 12, the circuit split 7-6, narrowly denying rehearing en banc for white firefighters in New Haven who said their right to equal protection and Title VII were violated when the city’s civil service board voted to disregard exam results that would leave black and Hispanic firefighters little or no chance for promotion to captain or lieutenant. The announcement of the vote was accompanied by a series of opinions from the circuit notable not only because of a division over Title VII but also because of disagreement over when the court should rehear a case en banc. The judges refer to both en banc and in banc hearings. Chief Judge Dennis Jacobs, who wanted a full rehearing, was the last to weigh in on June 17, criticizing the majority for relying on “traditional” deference to the decision of the original three-judge panel which upheld dismissal in Ricci v. DeStefano, 06-4996-cv. “If issues are important enough to warrant Supreme Court review, they are important enough for our full court to consider and decide on the merits,” Judge Jacobs said. The disagreement was the latest twist in a case that may ultimately be decided by the U.S. Supreme Court. The City of New Haven had defended its decision not to certify the results of exams administered in 2003 because it feared Title VII liability if minorities were not promoted into the upper ranks of the department. In 2006, Connecticut District Judge Janet Arterton dismissed the firefighters’ claims. Judge Arterton said in an unpublished opinion, “Defendants’ motivation to avoid making promotions based on a test with a racially disparate impact, even in a political context, does not, as a matter of law, constitute discriminatory intent, and therefore such evidence is insufficient for plaintiffs to prevail on their Title VII claim.” Second Circuit Judges Sonia Sotomayor, Rosemary Pooler and Robert Sack affirmed by summary order on Feb. 15, 2008. What the lawyers in the case did not know was that a single judge on the circuit asked for a vote on whether to rehear the case en banc. Karen Lee Torre of New Haven, representing the 19 white and one Hispanic firefighter who sued, assumed the case was over in New York and filed a petition for a writ of certiorari with the U.S. Supreme Court on May 14. Ms. Torre was surprised to hear that the circuit was considering en banc review. She was also surprised to find that on June 9, the original panel withdrew the February summary order and issued an almost identical per curiam opinion. The 7-6 vote to deny rehearing included in the majority the three judges on the original panel and Judges Barrington Parker, Guido Calabresi, Chester Straub and Robert Katzmann. Judge Jacobs was joined in the minority by Judges Jose Cabranes, Reena Raggi, Richard Wesley, Peter Hall and Debra Ann Livingston. Judge Cabranes, who wrote for the minority, was irked that the panel changed its decision to a per curiam opinion. Judge Cabranes said per curiams are usually used for “straightforward questions,” and not for the “indisputably complex and far from well-settled” questions in this case. He said the full court should have tackled the issues here, including whether New Haven was applying “an unconstitutional racial quota or set-aside.” Judge Cabranes also took the fairly unusual step of urging the U.S. Supreme Court to take the case. Discretionary Powers Both the summary order and the per curiam opinion said the civil service board was in a tough spot trying to comply with Title VII but that the board’s actions were protected because, in refusing to validate the exams, it was “simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact.” Echoing those opinions, Judge Parker, writing for the majority, said the case law makes it clear that “a public employer, faced with a prima facie case of disparate-impact liability under Title VII, does not violate Title VII or the Equal Protection Clause by taking a facially neutral, albeit race-conscious, actions to avoid liability.” Judge Calabresi followed by issuing his own concurring opinion, adding another reason why “it is particularly inappropriate for us to exercise our purely discretionary power to review this case en banc,” a power that he said is “always a matter of choice.” “The district court and the panel readily rejected the notion that the city’s stated reason was just a pretext. But neither court went on to consider whether the city was influenced by mixed motives,” Judge Calabresi said, and the reason was that neither party presented a mixed motive argument. Framing the Debate Judge Jacobs on June 17 took issue with Judge Calabresi’s framing of the debate on en banc discretion and on the mixed motive issue. Judge Jacobs cited Federal Rule of Appellate Procedure 35 in saying that “in banc rehearing is disfavored, unless such review is needed for coherence of the court’s decisions or ‘the proceeding involves a question of exceptional importance.’” He said Judge Calabresi was deprecating that standard by calling it “purely discretionary” and “always a matter of choice,” adding that Judge Calabresi had “nevertheless” joined Judge Parker’s opinion against en banc review “as a matter of (plain ordinary) discretion” and joined a second, brief opinion by Judge Katzmann “which decides against in banc review as a matter of tradition.” “I understand Judge Calabresi to be saying, in effect, that when it comes to in banc review, discretion should be leavened by caprice,” Judge Jacobs said. Judge Calabresi had said the court can only consider a “legal theory that the parties have eschewed” in circumstances such as “matters of life and death.” Judge Jacobs rejected this approach, saying “Judge Calabresi provides no authority for this proposition for the good reason that it is unsound.” Judge Jacobs quoted Supreme Court Justice Thurgood Marshall saying that “the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of the governing law.” And Judge Jacobs called the discretion to have the full circuit rehear cases “integral to the judicial process.” “[I]ssues of exceptional importance that may divide the circuits should be subject to in banc review lest a three-judge panel adopt a rule of law that would not command a majority vote of the appeals court as a whole, and thereby provoke an avoidable circuit conflict that the Supreme Court would have to resolve,” he said. It would be one thing if an en banc poll shows that most active members of the court agree with the three-judge panel that initially decided the case, he said. “But to rely on tradition to deny rehearing in banc starts to look very much like abuse of discretion.” Although the public debate by the circuit was a rare event, the spirited debate among the judges did not come as a surprise to Ms. Torre. Ms. Torre has exclusively handled cases for women and minorities in her years of employment and discrimination work. The Ricci case, she said, “was my first foray into so-called reverse discrimination.” “I’ve been practicing for 20 years and the issue of affirmative action really seems to stir passions on both sides,” she said. “I was literally astounded by the obstacles I faced [in Ricci.] People are polarized by this issue.” Now, having lost at both the district court level and, narrowly, at the circuit, Ms. Torre and her clients are hoping the U.S. Supreme Court takes the case.

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