219 F.3d 31 (1st Cir. 2000), 00-1056, Cotter v. MA Assoc. of Minority Law Enforcement Officers

Docket Nº:00-1056
Citation:219 F.3d 31
Party Name:WINIFRED N. COTTER, ET AL., Plaintiffs, Appellees, v. MASSACHUSETTS ASSOCIATION OF MINORITY LAW ENFORCEMENT OFFICERS, DENNIS A. WHITE and HAROLD WHITE, Proposed Intervenors, Appellants. Page 32 CITY OF BOSTON, JAMES J. HARTNETT, JR., Defendants, Appellees.
Case Date:July 17, 2000
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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219 F.3d 31 (1st Cir. 2000)

WINIFRED N. COTTER, ET AL., Plaintiffs, Appellees,

v.

MASSACHUSETTS ASSOCIATION OF MINORITY LAW ENFORCEMENT OFFICERS, DENNIS A. WHITE and HAROLD WHITE, Proposed Intervenors, Appellants.

Page 32

CITY OF BOSTON, JAMES J. HARTNETT, JR., Defendants, Appellees.

No. 00-1056

United States Court of Appeals, First Circuit

July 17, 2000

Heard April 6, 2000.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. William G. Young, U.S. District Judge.

Rheba Rutkowski with whom Jonathan M. Albano, Bingham Dana LLP, and Grace M. Jones, Lawyers Committee for Civil Rights Under Law of the Boston Bar Association, were on brief for proposed intervenors, appellants.

Michael C. McLaughlin with whom Law Offices of Michael C. McLaughlin was on brief for plaintiffs, appellees.

Before: Boudin, Stahl and Lipez, Circuit Judges.

BOUDIN, Circuit Judge.

On May 21, 1999, Winifred Cotter and seven other white officers of the Boston Police Department brought an action under section 1983, 42 U.S.C. § 1983, alleging that plaintiffs' constitutional rights to equal protection were violated by the promotion to sergeant of three black officers of the Boston Police Department. The plaintiffs and the three promoted officers all scored 84 on a promotional exam administered in October 1996. The complaint alleged that the three minority officers

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were promoted to sergeant for the purpose of maintaining or increasing minority representation among sergeants and that the eight plaintiffs were excluded from promotion because they were white.

The complaint cited various police department documents that plaintiffs say evidence a preoccupation with race in the decision to promote the three minority officers and not the plaintiffs, but defendants' answer disputes the inferences to be drawn. The relief sought in the complaint is an order of the court requiring that the plaintiffs be promoted to the sergeant position, retroactive to December 12, 1997, that plaintiffs be awarded damages, including but not limited to wages and benefits that would have been earned if promotion had occurred in a timely manner, and that plaintiffs be awarded attorney's fees.

At this stage the merits are not before us. Rather, the only issue presented on this appeal is whether the minority officers who were promoted are entitled to intervene as of right and whether intervention as of right should also be allowed to the Massachusetts Association of Minority Law Enforcement Officers ("MAMLEO"). The chronology of the case and history of the intervention effort are as follows.

The complaint was amended on July 29, 1999, limiting the defendants to the City of Boston and James Hartnett, Jr., who heads a Commonwealth office involved in personnel matters. In August 1999, Hartnett moved for dismissal of the claims against him on the ground that he was not responsible for the promotion decision. When the district court denied the motion to dismiss in October 1999, Cotter v. City of Boston, 73 F.Supp.2d 62 (D. Mass. 1999), Hartnett moved to certify to the Massachusetts Supreme Judicial Court questions of law concerning his authority. In this same period, two of the three black officers promoted to sergeant--Dennis White and Harold White--moved to intervene as of right as defendants in the case, as did MAMLEO.

The plaintiffs objected to the intervention, while the defendants acquiesced in it. In a two-sentence margin order entered on November 23, 1999, the district court denied the intervention motion but gave MAMLEO the right to file amicus briefs. Shortly thereafter, the district court set a discovery deadline of September 30, 2000. On December 30, 1999, an appeal was filed to this court by the two sergeants and MAMLEO. We refused to grant a stay of proceedings in the district court but expedited this appeal.

The denial of intervention claimed as of right is immediately appealable, Flynn v. Hubbard, 782 F.2d 1084, 1086 (1st Cir. 1986), but plaintiffs object to our consideration of the appeal, arguing that none of the would-be intervenors can demonstrate Article III standing. The parties argue in their briefs about whether intervenor-defendants are required to show standing, an issue on which the Supreme Court has reserved judgment, Diamond v. Charles, 476 U.S. 54, 68-69 (1986). Fortunately, there is no need to grapple with this question here.

Under Article III, a critical ingredient for standing is that a party have a concrete stake in the outcome of a dispute that is otherwise fit for resolution by the courts. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982). Consonantly, absent a statutory basis for intervention, an applicant seeking to intervene as of right must show that

the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede...

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