United States Court of Appeals, Eleventh Circuit
United States Court of Appeals, Eleventh Circuit
2d 956
40 Fair Empl.Prac.Cas. 255,
39 Empl. Prac. Dec. P 36,029, 54 USLW 2447,
3 Fed.R.Serv.3d 1533
This appeal arises out of an action filed in 1975 by black employees at Warner
Robins Air Logistics Center ("Warner Robins") against the Secretary of the Air
Force and others, seeking broad injunctive and monetary relief to redress
alleged discriminatory employment practices in violation of Title VII of the
Civil Rights Act of 1964, as amended (42 U.S.C. Sec. 2000e et seq.).FACTS1
In 1976, the district court certified a class of "all past, present, and future black
employees" at Warner Robins. Plaintiffs' original retained counsel, Bernice
Turner Brooks, moved for withdrawal of class co-counsel, the NAACP Legal
Defense and Education Fund, Inc. (the "Legal Defense Fund"), in 1980. The
district court conferred with the named plaintiffs in chambers to determine their
choice of representation and later ordered Ms. Brooks withdrawn and the Legal
Defense Fund substituted as lead counsel. After extensive discovery and pretrial
proceedings, the parties reached a proposed settlement in June, 1984. Their
proposed consent order and decree provided two types of remedial relief: $3.75
million in backpay to class members (with an additional $37,500 for the named
plaintiffs) and a system of promotional relief whereby the defendants would
promote qualified class members who were employed at Warner Robins during
the 1972-1979 period2 to 240 "target" positions. The district court gave
preliminary approval to the consent decree on June 18, 1984; intervenorappellants, white and non-black minority employees at Warner Robins, filed a
motion to intervene on July 31, 1984. The district court denied the motion to
intervene for lack of standing under Fed.R.Civ.P. 24 and untimeliness, 597
F.Supp. 1501. The court then entered final judgment approving the consent
decree as modified following the fairness hearing.
DISCUSSION
4
II
6
The district court also found the motion to intervene was not timely. We review
this decision under an "abuse of discretion" standard. Reeves v. Wilkes, 754
F.2d 965, 968 (11th Cir.1985).
The court must consider four factors to assess timeliness for either intervention
of right or permissive intervention:
8 the length of time during which the would-be intervenor knew or reasonably
(1)
should have known of his interest in the case before he petitioned for leave to
intervene; (2) the extent of prejudice to the existing parties as a result of the wouldbe intervenor's failure to apply as soon as he knew or reasonably should have known
of his interest; (3) the extent of prejudice to the would-be intervenor if his petition is
denied; and (4) the existence of unusual circumstances militating either for or
against a determination that the application is timely.
9
United States v. Jefferson County, 720 F.2d 1511, 1516 (11th Cir.1983). The
district court based its determination on the reasoning of Jefferson County. We
conclude, however, that this case requires a different result.
10
Under the first factor, the district court incorrectly concluded intervenorappellants acted unseasonably because they had reason to know of the suit
since 1975. A court cannot impute knowledge that a person's interests are at
stake from mere knowledge that an action is pending, "without appreciation of
the potential adverse effect an adjudication of that action might have on one's
interests...." Jefferson County, 720 F.2d at 1516. See also Stallworth v.
Monsanto Co., 558 F.2d 257, 264-65 (5th Cir.1977). Similarly, we do not
impute knowledge in the present case from the complaint's prayer for broad
affirmative relief.
11is especially unrealistic to say that the whites should have known from the outset
It
that any relief might be at their expense, and that it is only "a matter of degree" if the
decree is unexpectedly costly to their interests. The essence of institutional litigation
is that the remedy cannot be deduced from the defendant's liability; the remedy
embodies discretionary policy choices about the future operation of an institution.
The variety of remedial possibilities in any given case makes it difficult to foresee
which remedies the court or the parties will actually select. Potential intervenors
cannot very well judge whether their interests are in serious jeopardy until they
know what particular remedies are being contemplated.
12
Schwarzschild, Public Law by Private Bargain: Title VII Consent Decrees and
the Fairness of Negotiated Institutional Reform, 1984 Duke L.J. 887, 921. In
Jefferson County, the would-be intervenors had been in close contact with the
defendant employer regarding the suit, Jefferson County, 720 F.2d at 1516, but
the record here does not show that intervenor-appellants had such contact. We
will not require intervenor-appellants to have anticipated a promotional remedy
that provides for promotions set aside for class members without a finding that
the individual employees so promoted had been subject to discrimination.
Intervenor-appellants filed their motion shortly after the proposed consent
decree was announced, before the fairness hearing. We do not find the six week
delay was dilatory. Cf. Reeves v. Wilkes, 754 F.2d 965, 970 (11th Cir.1985)
(intervention sought two years and eight months after entry of consent decree
was untimely). We hold intervenor-appellants satisfied the first factor.
13
As to the second factor, the district court found the existing parties would be
The third factor addresses the extent the applicant would be prejudiced if
intervention is denied. The district court found intervenor-appellants were not
prejudiced because they could bring reverse discrimination suits against the
defendant employer. Although one whose interests are not represented in the
decree may be allowed to bring a reverse discrimination action, Jefferson
County, 720 F.2d at 1517-19, that alone does not negate prejudice. The central
claim in any such suit would be an allegation that the race-conscious promotion
of a class member violated the Constitution and Title VII. A defense based on
the consent decree would raise the issue whether action mandated by the
consent decree would be exempt from liability without affording non-black
employees an opportunity to challenge the decree. Id. at 1518. Moreover, the
burden multiple reverse discrimination suits would impose on judicial economy
is an important consideration in determining whether intervention is
appropriate. Cf. Stallworth v. Monsanto Co., 558 F.2d at 265.
15
For the foregoing reasons, we conclude the district court abused its discretion in
denying the motion to intervene. We therefore reverse the district court's order
denying intervention and vacate that portion of the consent decree that
mandates the promotional relief.
17
Intervenors are limited to challenging the portion of the remedy that reserves
240 target position promotional opportunities to class members. They have no
standing to contest the existence of past discrimination or any other issue
concerning the merits of the dispute and no standing to contest the backpay
award or veto remedial measures in general. The only issue intervenors shall be
permitted to raise on remand is their contention that white and non-black
employees will not be considered for promotion to the 240 target positions on
an equal basis with nondiscriminatee black employees solely on account of
race.
18
The district court and the parties have been laboring with this case for over a
decade.4 It is in the best interests of the court and all the parties that this case,
once apparently settled, be now resolved with the least delay consistent with
this remand. Therefore, the district judge should limit discovery narrowly to the
single issue which intervenors are permitted to address and set and enforce
strict time limits for its accomplishment. To ensure that discovery and other
necessary proceedings are accomplished as quickly and efficiently as possible,
the district court should enjoin all parties to require good faith cooperation and
impose sanctions upon any party obstructing prompt, efficient and complete
discovery as ordered by the district court.
19
We recognize that all parts of the settlement are so interrelated that resolution
of this issue on remand may substantially affect the parties' agreement to the
settlement as a whole. Therefore, the district court should allow the original
parties to reassess their agreement to any part of the consent decree after the
issue presented by intervenors has been decided.
III
20
merits of their claim." (R. 451-52). The district court concluded the Legal
Defense Fund would best represent the class because of Ms. Brooks' distance
and lack of resources, the court's concern that Ms. Brooks would not adequately
represent absent class members, and because the Legal Defense Fund had
carried the primary litigation burden. (R. 453-54). The district court acted
reasonably within its power and duty to protect the interests of the class,
including absent class members. In re Fine Paper Antitrust Litigation, 617 F.2d
22, 27 (3d Cir.1980). We also find no abuse of discretion in the district court's
failure to include an opt out provision in the consent decree. Plaintiff-appellants
did not seek an opt out provision at the fairness hearing, do not contest the
fairness of the consent decree to the class, and do not allege claims unique to
individual class members. The general rule is that members of a class certified
under Fed.R.Civ.P. 23(b)(2) have no automatic right to opt out of the
settlement. Holmes v. Continental Can Co., 706 F.2d 1144, 1153 (11th
Cir.1983). We find this case does not present uniquely individualized or
heterogenous interests entitling plaintiff-appellants to an opt out provision. Id.
at 1159-60.
21
22
23
The majority holds that the intervenors' allegation that "they are ineligible for
these promotions solely on account of race because nondiscriminatee class
members are eligible for the target positions ... is sufficient to confer standing
to intervene." Majority Op., at 959. The majority requires no allegation or
showing that intervenors would be eligible for the target promotions if they
were not set aside for class members. The holding bases the right to intervene
solely on a claim that the promotion remedy is illegal, unaccompanied by a
claim of the "direct, substantial, legally protectible interest in the proceeding"
that this circuit has heretofore required to support intervention. See, e.g., Athen
Lumber Company, Inc. v. Federal Election Commission, 690 F.2d 1364, 1366
(11th Cir.1982).
24
24
25
I agree that the intervenors are not required to prove that they would actually
receive target promotions if not for the promotion remedy. The Supreme Court
has explained that the injury consisting in the denial of an opportunity to
compete for a position simply because of race is sufficient to confer standing.1
Regents of University of California v. Bakke, 438 U.S. 265, 281 n. 14, 98 S.Ct.
2733, 2743 n. 14, 57 L.Ed.2d 750 (1978). However, this holding does not
relieve the intervenor of the burden of showing that he or she is eligible for a
target position. See Doherty v. Rutgers School of Law-Newark, 651 F.2d 893,
899-902 (3d Cir.1981) (finding no standing in white applicant to challenge
affirmative action in admissions where applicant did not meet criteria for
acceptance to any law school seat); West Virginia Association of Community
Health Centers, Inc., 734 F.2d 1570, 1576 (D.C.Cir.1984) (once applicant
demonstrates eligibility, not necessary to shoulder additional burden of
demonstrating certainty of receiving benefit to challenge its allocation); see also
Preston v. Heckler, 734 F.2d 1359, 1365 (9th Cir.1984) (same). Obviously, an
intervenor who is not eligible for any target position cannot claim to be injured
by the promotion remedy or to have an interest in its legality. In not requiring
intervenors to allege or show some realistic chance of priority in promotion to
one of the allocated target positions, the majority allows any employee, no
matter how far-fetched his or her chance of promotion, to challenge the
promotion remedy.2 This approach amounts to abandonment of the interest
requirement for intervention.
26
28
they are ineligible for these promotions solely on account of race because
nondiscriminatee class members are eligible for the target positions. We hold
this is sufficient to confer standing to intervene.
29
30
Yet, under United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61
L.Ed.2d 480 (1979), a voluntary affirmative action plan need not benefit only
demonstrated victims of discrimination nor even be justified by a judicial
finding of discrimination.3 The legal interests of the intervenors are affected by
the participation of nondiscriminatee class members in the promotion remedy
only if Firefighters Local 1784 v. Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81
L.Ed.2d 483 (1984), is interpreted to limit court-approved consent decrees to
those remedies that could be ordered by the court after trial. Under such an
interpretation, the parties to the consent decree would have to show that the
remedies provided therein will benefit only actual victims of discrimination.
Only under Stotts does the issue of the victim-specificity of a consent decree
remedy arise.
31
However, it is clearly the law of this circuit that Stotts does not limit the
remedies available to parties to a consent decree any further than does the law
on the legality of other voluntarily adopted affirmative action measures. Turner
v. Orr, 759 F.2d 817, 823-26 (11th Cir.1985) (the legal basis of Stotts "does not
limit the remedies to which parties may voluntarily agree under a consent
judgment"). Thus, the fact that nondiscriminatee blacks may be benefited by
the promotion remedy does not affect any legal interest of the intervenors if the
remedy does not violate Weber. A non-black employee does not, as a matter of
law, suffer discrimination simply because nondiscriminatees participate in the
promotion remedy. Although their claim is foreclosed by Turner, and has
already been decided against intervenors by the district court, the majority
remands the case for assessment of the Stotts claim.
32
I must also disagree with the majority's conclusion that the intervenors will be
prejudiced if intervention is denied.4 This conclusion is completely contrary to
the district court's clear findings of fact. Record at 1530. The district court
found that intervenors would be allowed to bring an action to challenge any
denials of promotion resulting from implementation of the consent decree and
therefore are not prejudiced by denial of intervention. The majority's conclusion
is contrary to the mandate in United States v. Jefferson County, 720 F.2d 1511
(11th Cir.1983). In that case, we stated that "where the movant [for
intervention] has no identity of interest with a party and thus could not be
bound, ... we would find no prejudice sufficient to give weight to the third
factor." Id. at 1517. We went on to indicate that non-black male employees
could not be bound by a consent decree providing extensive remedies for
discrimination against blacks and women in a lawsuit to which they were not
party. We held that the district court was justified in finding that the non-black
male employees would not be prejudiced by a denial of intervention. In so
doing, we rejected the very reasoning through which the majority here appears5
to find prejudice--that promotions mandated by a consent decree might be
exempt from an independent challenge that they are discriminatory. The
majority has not attempted to, and could not, distinguish the prejudice alleged in
this case from that in Jefferson County, yet it rejects the district court's finding
on this point in the face of controlling precedent to the contrary.6
33
34
35
The majority thus vacates a promotion remedy that has already been half
Honorable Truman M. Hobbs, Chief U.S. District Judge for the Middle District
of Alabama, sitting by designation
The issues in this appeal do not concern the merits of plaintiffs' discrimination
claim. We therefore recite only those facts relevant to the issues before us
The proposed consent order and decree originally included black employees
employed by Warner Robins from March 24, 1972 to the date the court
approved the settlement. The parties amended this provision to limit the target
promotions to class members hired before January 1, 1980
Litigation time may well have mooted the issue on which remand is ordered.
Though sought, stay of the consent was not granted. The dissent which has now
been prepared, refers to an implementation report indicating that much of the
decree had been implemented in July. Of course, it was necessary for both the
majority and dissenting opinions to be prepared before the judgment of this
court could be made effective. The district court will want to inquire into
mootness before proceeding further
Merely because we are remanding the case does not imply that we believe the
proposed intervenors should prevail. We hold merely that before the district
court orders implementation of the consent decree, the proposed intervenors
should be allowed to intervene. Specifically, we do not pass upon the
Standing to bring a lawsuit and interest to intervene appear to be related, but not
necessarily identical, concepts. See generally 7A C. Wright & A. Miller,
Federal Practice and Procedure Sec. 1908 (1972 & Supp.1985). In this circuit, a
would-be intervenor must claim a direct, substantial, legally-protectible interest
to support a motion for intervention of right. "In essence, the intervenor must be
at least a real party in interest...." Athens Lumber Company, Inc., 690 F.2d at
1366. Thus, the would-be intervenor must demonstrate at least the interest
required to assert standing to initiate a law suit. See id. (citing standing cases in
the intervention context). Otherwise, we place the intervenor in a position to
refuse consent without any demonstration of illegality on a lesser showing of
interest than would be necessary to challenge the legality of the agreement in a
separate proceeding. Because the potential prejudice to existing parties is so
great, we should be careful to screen requests for intervention
Intervenors can claim they would be considered for the target promotions if not
for the promotion remedy only because the computerized promotions system at
Warner Robins screens all the employees to find those who are qualified to
compete for a position. Even among those who are minimally qualified for a
position chances of promotion may be slim because a particular employee may
be ranked below hundreds, even thousands, of other qualified employees. See
Record at 1479-84
In this case the district court found that the black employee class had made out
an unrebutted prima facie case of discrimination. The employer does not admit
liability
The majority implies, but never states, that the intervenors would be prejudiced
were intervention denied
This case demands the same result. ... The present parties would be
substantially prejudiced by movants' intervention at this stage. Movants, on the
other hand, would not be prejudiced by denial of intervention. They may
commence a separate lawsuit if they so desire (assuming subsequent events
result in a more concrete demonstration of standing), as they are not precluded
by the Consent Decree. Moreover, they were allowed to be present and crossexamine witnesses at the fairness hearing held on August 9, 1984. Their
objections have been filed and will be considered by the court. There are no
unusual circumstances demanding intervention. Indeed, the court perceives the
fact that the Decree affects only 6 1/2% of all promotions as a circumstance
militating against intervention. As in Jefferson County, movants' motion to
intervene is neither timely nor necessary for the preservation of movants'
asserted rights.
Record at 1530-31.
7
According to an implementation report filed with the district court on July 18,
1985, 114 of the 240 target promotions have been filled
point is that an important question of law ought to be addressed for some reason
other than its importance to the party raising it, I reiterate that we are not to
attribute significance to the party's legal claim absent some evidence of the
party's interest in it. In any case, the majority's statement makes two fallacious
assumptions: (1) that the legal question raised by intervenors is significant; (2)
that the intervenors would be foreclosed from raising their legal question in an
independent proceeding. I have rejected both these assumptions elsewhere in
this opinion and will not repeat my position. However, it should be noted that
Jefferson County does not support the proposition for which it is cited at this
juncture in the majority's opinion. Jefferson County states only that a non-party
would not be allowed to re-litigate the merits of the consent decree vis-a-vis the
parties to it. That opinion does not find that the legality of a race-conscious
remedy vis-a-vis non-parties would be foreclosed in a separate reverse
discrimination suit.