Appeals court holds up FDNY monitoring over minority hiring

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An appeals court Thursday stayed a federal judge's order giving a court monitor broad oversight of hiring at New York City's fire department, signaling that the panel may be preparing to overturn some of the recent landmark anti-discrimination rulings at the FDNY.

Brooklyn U.S. District Judge Nicholas Garaufis appointed lawyer Marc Cohen last year to oversee minority recruitment and hiring at the FDNY after finding that the city had engaged in intentional discrimination, and has already ordered the city to pay more than $1.5 million in fees to the monitor.

The city, which last year appealed Garaufis' rulings to the Second U.S. Circuit Court of Appeals, this week asked the same panel hearing that appeal to enjoin Cohen from exercising his powers while it is considering the appeal. The three judges -- Ralph Winter, Jon Newman and Rosemary Pooler -- granted the request in a brief order.

"We are gratified that the court granted our stay," said Georgia Pestana, a city law department official.

"I felt a lot better a few minutes ago, before I read the Second Circuit order," said Richard Levy, a lawyer for the Vulcan Society, the black firefighters group. "It's a disappointing decision."

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Levy and city lawyers agreed that new hiring tests ordered by Garaufis to remedy a history of discrimination at a 90 percent white department are not at issue in the appeals, and hiring a new class of firefighters who took those tests last year won't be affected.

But the stay hints that other rulings by Garaufis that are being appealed, allowing him to exercise continuing oversight of the FDNY through the monitor, are likely to be overturned, delayed or altered in some form when the appeals court finally rules.

The city has also asked the appeals court to remove Garaufis from the case because of bias, and has challenged the propriety of Cohen's fees.

The appeals court, in its brief order, gave no indication when its final ruling in the case will come.

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