The Associated Press

NEW HAVEN, Conn. — Six of the 13 judges on the 2nd U.S. Circuit Court of Appeals have asked the nation's highest court to hear a reverse discrimination case filed by 20 New Haven firefighters, a move some legal observers are calling unusual.

The judges on the New York-based court said the case raises legal questions that may have national implications.

A three-judge panel of the court upheld a lower court's dismissal of the case earlier this month, which prompted an unsuccessful effort by other judges to have all 13 members of the court hear the case.

Nineteen white firefighters and one Hispanic firefighter sued the city in 2004. They said they would have been promoted if the city hadn't thrown out the results of two tests for lieutenant and captain because too few minorities scored high enough to move up in rank. 

New Haven officials claimed the exams were unfair to minority firefighters and the city faced potential discrimination lawsuits if it went ahead with the promotions.

Scores on the exams indicated that no blacks would be promoted. Fourteen of the top 15 candidates for lieutenant and captain were white, based on scores.

The lawsuit, Ricci v. DeStefano, alleges the city violated the 20 firefighters' civil rights because the decision to scrap the exams was based on race.

The six judges who asked the Supreme Court to hear the case took no position on the merit of the firefighters' allegations. They did, however, take issue with what they called the three-judge panel's "tersely adopted" ruling.

"What is not arguable ... is the fact that this court has failed to grapple with the questions of exceptional importance raised in this appeal," said 2nd Circuit Judge Jose A. Cabranes.

Cabranes wrote the dissenting opinion signed by five other judges "in the hope that the Supreme Court will resolve the issues of great significance raised by the case."

The judges who supported dismissing the case claimed some of Cabranes' arguments were unfair and mistaken.

Judge Barrington D. Parker said the three-judge panel believed that New Haven federal Judge Janet Bond Arterton had provided a thoughtful and careful review of the firefighters' claims to the appeals court.

"Nothing more is required," he wrote.

Karen Torre, a lawyer for the firefighters, said the six judges' request to the U.S. Supreme Court was a significant development in a case that is important to first responders nationwide.

"No matter what the outcome of this case on its legal merits, the judges' call for full judicial review, in a responsible and transparent manner, has done much to help restore my clients' and the public's confidence in the courts," she said.

Central to the case is whether municipalities can disregard promotion exam results because they yielded too many qualified applicants of one race and not enough of another.

"It raises complicated, difficult issues that really have not yet been answered by any settled body of existing legal precedent," said Hartford attorney Steven Ecker, who specializes in appellate work.

Jessica Mayorga, a spokeswoman for New Haven Mayor John DeStefano, said the city does not comment on pending litigation.

The fact that the six dissenting 2nd Circuit judges have asked the U.S. Supreme Court to hear the case is unusual, but not unprecedented, said John Williams, a New Haven civil rights attorney.

"I think it's highly likely that Karen (Torre) is going to be going to Washington," he said.