Unpublished but En Banc Worthy:

Last week, the U.S. Court of Appeals for the Second Circuit divided 7-6 over whether to hear Ricci v. DeStefano en banc. The case involves a challenge by several white and Hispanic firefighters to the New Haven Fire Department's alleged failure to use the results of two promotional exams because the NHFD did not like the racial distribution of the results. Denial of en banc review on the Second Circuit is hardly news. The close division of the court, on the other hand, is interesting, as is Judge Cabranes dissent from denial, which begins:

This appeal raises important questions of first impression in our Circuit--and indeed, in the nation--regarding the application of the Fourteenth Amendment's Equal Protection Clause and Title VII's prohibition on discriminatory employment practices. At its core, this case presents a straight-forward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another? In a path-breaking opinion, which is nevertheless unpublished, the District Court answered this question in the affirmative, dismissing the case on summary judgment. A panel of this Court affirmed in a summary order containing a single substantive paragraph. Three days prior to the filing of this opinion, the panel withdrew its summary order and filed a per curiam opinion adopting in toto the reasoning of the District Court, thereby making the District Court's opinion the law of the Circuit.

The use of per curiam opinions of this sort, adopting in full the reasoning of a district without further elaboration, is normally reserved for cases that present straight-forward questions that do not require explanation or elaboration by the Court of Appeals. The questions raised in this appeal cannot be classified as such, as they are indisputably complex and far from well-settled. These questions include: Does the Equal Protection Clause prohibit a municipal employer from discarding examination results on the ground that "too many" applicants of one race received high scores and in the hope that a future test would yield more high-scoring applicants of other races? Does such a practice constitute an unconstitutional racial quota or set aside? Should the burden-shifting framework applicable to claims of pretextual discrimination ever apply to a claim of explicit race-based discrimination in violation of Title VII? If a municipal employer claims that a race-based action was undertaken in order to comply with Title VII, what showing must the employer make to substantiate that claim? Presented with an opportunity to address en banc questions of such "exceptional important," a majority of this Court voted to avoid doing so.

I respectfully dissent from that decision without expressing a view on the merits of the questions presented by this appeal, in the hope that the Supreme Court will resolve the issues of great significance raised by this case.

Judge Cabranes' dissent (which begins on page 9 of the order) was joined by Chief Judge Jacobs, and Judges Raggi, Wesley, Hall, and Livingston. Those voting against en banc review were Judges Calabresi, Straub, Pooler, Sack, Sotomayor, Katzman, and Parker. The original panel consisted of Judges Pooler, Sack, and Sotomayor.

Over at Bench Memos, Ed Whelan is dismayed by the court's "apparent shenanigans," which he suggests were motivated by a desire to avoid Supreme Court review of the case. Whatever the motive, the actions of the original panel, the failure to handle an issue of this significance in a published opinion in particular, are highly questionable, to say the least. The New York Law Journal reports further here.