Rare public debate among 2d Circuit judges in Title VII en banc denial

For most of us, losing a case in the Court of Appeals means the end of the case. The Supreme Court takes very few cases these days, and the Court of Appeals rarely grants en banc review, where the entire court, as opposed to the three judges who sat on the case, take up the issue anew. That doesn't stop people from seeking en banc review. But it's the rare en banc petition that produces dissenting opinions from the judges who want the entire Court of Appeals to re-hear the case. That happened on June 12, when the Court of Appeals declined to re-hear an employment discrimination case that holds that a public employer, faced with a prima facie case of disparate impact liability, may take facially neutral, but race conscious, measures to avoid such liability.

The case is Ricci v. DeStefano. The original panel decision is here. That ruling succinctly held as follows:

Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the [Civil Service] Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

And that was that, all of two pages. But there was more to this case, as the June 12 en banc decisions reveal. In fact, there is 72 pages worth, including the reprint of the district court opinion. Several judges on the Court of Appeals want to the entire Second Circuit to re-hear the case. The debate on this issue is here. Led by Judge Katzmann, five judges state that there is no reason to re-hear this case because the Second Circuit rarely engages in that practice, and a petition for Supreme Court review is pending. Led by Judge Parker, five judges (a slightly different lineup) argue that the panel decision is actually consistent with Second Circuit precedent, so this case is not that unique.

However, in objecting to the en banc denial, led by Judge Cabranes, six judges argue that this case raises important questions of first impressions for this Circuit: "may a municipal employer disregard the results of a qualifying examination, which was carefully constructed to avoid race-neutrality, on the ground that the results of that examination, yielded too many qualified applicants of one race, and not enough of another?" These judges further object that the panel's decision is too short and does not adequately address the important issues raised here.