Corrupt Judge-Picking Machine Upset With Law-Abiding Federal Judge

City Seeks Removal of Garaufis From Firefighter Bias Lawsuit
The New York Law Journal by Mark Hamblett  -  January 23, 2012

New York City took its conflict with Eastern District Judge Nicholas Garaufis to a new level on Jan. 20, announcing that it had filed an appellate brief challenging the judge's remedial order in the long running battle over discriminatory hiring practices at the Fire Department and requesting that the judge be removed from the case. "It is an understatement to say that this judge has expressed firm views on the city's ostensible intent to discriminate, as well as the supposed need for close judicial oversight of systemic relief," the brief states. "To any reasonable observer, the vehemence of those beliefs would raise substantial doubt that he could fairly re-evaluate the evidence on either issue." Incensed over Judge Garaufis' decision to name a court monitor who could serve for at least a decade, Corporation Counsel Michael Cardozo and his legal team told the U.S. Court of Appeals for the Second Circuit that Judge Garaufis had demonstrated "bias throughout the proceeding." Judge Garaufis has voided three firefighter exams and made two liability determinations based on exams, finding the FDNY guilty of both intentional discrimination against black applicants, and practices that had a disparate impact on minorities, a finding that Mr. Cardozo said in his brief "intentionally disregarded a wealth of evidence relevant to the city's lack of discriminatory intent." In October, as he issued a remedial order in United States v. The City of New York, 11-5113-cv., that included the appointment of a monitor, Judge Garaufis observed, "Today—our years of litigation and two adverse liability decisions later­—the city still doesn't get it." (NYLJ, Oct. 6, 2011) Mr. Cardozo vowed to appeal "as soon as the law allows." He did so in December and asked the Second Circuit to hear the appeal on an expedited basis (NYLJ, Dec. 9, 2011).

In its brief filed with the circuit on Jan. 17, the Law Department states that Judge Garaufis abused his discretion in entering an injunctive order that "far exceeds the scope of the statutory violation." "Despite the broad equitable powers conferred by Title VII, the District Court lacked authority to order the FDNY to change practices that have nothing to do with the exams that formed the sole basis for both liability determinations," the city argues.  The injunction also violates "fundamental principles of federalism," the city says, because it limits the "political branches' ability to determine the appropriate allocation of scarce public resources," a concern that is heightened where, "as here, federal courts interfere with a locality's discretion in how best to protect public safety." "Further, the FDNY's quasi-military structure demands that a firefighter respond to authority with alacrity," the brief states. "The Fire Commissioner has the duty and necessary expertise to ensure, in the exercise of his sound discretion, that individuals holding such a position have the requisite character and integrity to command public trust. "Absent a proper adjudication that he has abused that power, a federal judge may not intervene without disrupting the delicate balance guaranteed by the Constitution." The city attacked the judge's findings of fact that followed a remedial bench trial he held in August, facts that Judge Garaufis said showed that hiring practices discriminated against blacks and Hispanics, leaving the department "a stubborn bastion of white male privilege." But the city's strongest language was reserved for the judge himself. It claimed Judge Garaufis showed partiality during the hearing—a "pervasive propensity to excuse shortcomings" in the proof offered by the Vulcan Society, an organization of black firefighters who intervened in the case brought by the U.S. government. "The picture that emerges is that of a court bound and determined to justify closely supervised 'top-to-bottom' injunctive relief," the city's brief states. "Where the city's proof showed that such relief was unnecessary, the court excluded, struck or ignored it. Where intervenors' evidence fell short, the court found a way to excuse or fix it." The city's lawyers say the judge tried to bolster the intervenors' evidence by calling three city officials as witnesses, thereby making "himself a witness in the case" in violation of the Federal Rules of Evidence "and destroying the appearance of impartiality." The city faults the judge for "confrontational" questions to city witnesses, the appointment of former Manhattan district attorney Robert Morgenthau as a special master to oversee test development, (Mr. Morgenthau would later step aside to be replaced by Mary Jo White, the former Southern District U.S. attorney who is now a Debevoise & Plimpton partner), and said the judge was "influenced by press accounts of extrajudicial statements attributed to city officials."  The brief quotes the judge at one point as saying, "The court has been criticized in the media by the mayor and the Office of Corporation Counsel all along in this litigation." The brief was written by Alan G. Krams and Deborah A. Brenner, senior counsels in the Appellate Division of the city Law Department. Mr. Cardozo also signed the document because of the importance of the issue, a spokesperson said. Judge Garaufis declined to comment about the brief. Richard A. Levy of Levy Ratner represents the Vulcan Society. Mr. Levy said the city "is trying to avoid injunctive relief on the theory it was predicated on the intentional discrimination finding."  He added, "I think they may be disappointed. Certainly, it's our view that all of the relief that was granted could have been granted based on [the judge's] finding of disparate impact—even though no intentionality has been found." Mark Hamblett can be contacted at mhamblett@alm.com.