870 F.2d 1256 (7th Cir. 1989), 88-1959, United States v. City of Chicago

Docket Nº:88-1959, 88-1961.
Citation:870 F.2d 1256
Party Name:, 13 Fed.R.Serv.3d 86 UNITED STATES of America, Plaintiff, and Ann Erwin, et al., Intervening Plaintiffs-Appellants, v. CITY OF CHICAGO, et al., Defendants-Appellees. William C. BIGBY, et al., Plaintiffs-Appellees, and Ann Erwin, et al., Intervening Plaintiffs-Appellants, v. CITY OF CHICAGO, et al., Defendants-Appellees.
Case Date:March 15, 1989
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1256

870 F.2d 1256 (7th Cir. 1989)

, 13 Fed.R.Serv.3d 86

UNITED STATES of America, Plaintiff,

and

Ann Erwin, et al., Intervening Plaintiffs-Appellants,

v.

CITY OF CHICAGO, et al., Defendants-Appellees.

William C. BIGBY, et al., Plaintiffs-Appellees,

and

Ann Erwin, et al., Intervening Plaintiffs-Appellants,

v.

CITY OF CHICAGO, et al., Defendants-Appellees.

Nos. 88-1959, 88-1961.

United States Court of Appeals, Seventh Circuit

March 15, 1989

Argued Jan. 10, 1989.

Rehearing and Rehearing En Banc Denied April 24, 1989.

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Kimberly A. Sutherland, Chicago, Ill., for intervening plaintiffs-appellants.

Robert J. Delahunty, U.S. Dept. of Justice, Washington, D.C., for plaintiff.

Michael K. Fridkin, Corp. Counsel, Chicago, Ill., for defendants-appellees.

Before POSNER, COFFEY and MANION, Circuit Judges.

POSNER, Circuit Judge.

Ann Erwin and other white female sergeants in the Chicago police force appeal from Judge Marshall's refusal to allow them to intervene in two suits attacking discrimination, and from his subsequent refusal to recuse himself from continuing to preside over the suits.

The first suit, United States v. City of Chicago, had been brought in 1973 by the Department of Justice against the City of Chicago. It charged discrimination against blacks, Hispanics, and women in both initial hiring and promotion to sergeant. Judge Marshall granted a final injunction in 1976 that required the City to hire and to promote to sergeant specified percentages of members of these groups. 411 F.Supp. 218 (N.D.Ill.1976), aff'd, 549 F.2d 415 (7th Cir.1977). The court retained jurisdiction (automatically--see United States v. Fisher, 864 F.2d 434, 436-37 (7th Cir.1988)) to ensure compliance with the decree. We later ordered the court to modify it. See 663 F.2d 1354 (7th Cir.1981) (en banc).

The second suit, Bigby v. City of Chicago, had been brought in 1980 by black male sergeants who claimed that the examination the City had used in 1977 to determine eligibility for promotion from sergeant to lieutenant was not job-related and had had a disparate (i.e., disproportionately adverse) impact on blacks. The case was assigned

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to Judge Marshall, who in 1984 ordered some immediate promotions of black sergeants and in addition directed the parties to work out a new test; jurisdiction again was automatically retained to assure compliance with the decree. The parties developed a new exam, which the City administered in 1987. Of the sergeants taking it 24 percent were black, 72 percent white, and 4 percent Hispanic. But only 17 percent of those who passed the exam were black. (The percentage that passed which was white was 79 percent, and Hispanic 4 percent.) The parties--that is, the black sergeants and the City--were not satisfied with this outcome and decided to change it, first by standardizing for "rater bias" (by assigning the same mean score to each group of exams graded by a different reader) and second by raising the mean score of the black and Hispanic sergeants who had taken the test to that of the white sergeants. As a result of these adjustments the percentage that passed that was black rose to 23.5 and the percentage Hispanic to 4.5 percent, even though the percentage Hispanic that had passed the test before the grades had been changed was the same as had taken it (4 percent). The adjustments in favor of blacks and Hispanics caused the percentage that passed that was white to fall to 71.5.

The City and the black sergeants went to Judge Marshall on March 14, 1988, for authorization to make promotions to lieutenant from a list based on the adjusted test results. Judge Marshall gave his okay on the spot, saying "all I am really interested in is whether the pool out of which the City promotes is a nondiscriminatory pool. I don't care how you select the 200 [the number of sergeants to be promoted to lieutenant]. You can have them arm wrestle or anything else, see." The promotions were made that same day. Forty-six days later, Ann Erwin and other white female sergeants who claim to have been denied promotion to lieutenant because of the post-exam leg-up for the blacks and Hispanics moved to intervene in both cases. Judge Marshall denied the motion as untimely. The City defends Judge Marshall's ground and adds another: intervention is unnecessary because the appellants have filed a separate federal suit against the City--Erwin v. City of Chicago, No. 88 C 6927, 1988 WL 135586 (N.D.Ill.1988)--charging it with discrimination against whites in altering the test scores to favor minority sergeants. The City argues that the appellants can get damages in that suit and therefore don't need to intervene in either United States v. City of Chicago or Bigby.

The appellants challenge not only the denial of their motion to intervene but also Judge Marshall's refusal almost four months later to recuse himself after Mary Mikva--a lawyer for the City who had clerked for Judge Marshall back in 1980 when both cases were pending before him but claims not to have worked on either case during her clerkship--argued on the City's behalf against the motion to intervene. Judge Marshall ordered her off the case, but the appellants argue that this was not enough.

The appeal from the denial of the motion for recusal is implicitly conditioned on our reversing the denial of the motion to intervene, since unless and until Erwin and her group become parties they cannot appeal from any order in the proceeding other than the denial of that motion. Marino v. Ortiz, 484 U.S. 301, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988). Conditional or not, the appeal is barred by the appellants' failure to file a notice of appeal from Judge Marshall's order denying the recusal motion. Although the doctrine of pendent appellate jurisdiction allows certain orders not appealable in their own right to be reviewed in conjunction with closely related orders that are appealable, see, e.g., Illinois ex rel. Hartigan v. Peters, 861 F.2d 164, 166 (7th Cir.1988); Patterson v. Portch, 853 F.2d 1399, 1403 (7th Cir.1988), the doctrine has never to our knowledge been used to allow the appeal, without the filing of a notice of appeal, of an order made after the appealable order. When the nonappealable order precedes the appealable one, the doctrine sensibly excuses the appellant's failure to have filed a notice of appeal from the first order; for until the later order

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was entered, he had no basis for appeal. But a party who wants to appeal an order because of its relation to an order already under appeal can file a notice of appeal from the second order, and should do so, to give the appellee clear and early notice of the scope of the appeal. Cf. Torres v. Oakland Scavenger Co., --- U.S. ----, 108 S.Ct. 2405, 2409, 101 L.Ed.2d 285 (1988); Allen Archery, Inc. v. Precision Shooting Equipment, Inc., 857...

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