782 F.

2d 956
40 Fair Empl.Prac.Cas. 255,
39 Empl. Prac. Dec. P 36,029, 54 USLW 2447,
3 Fed.R.Serv.3d 1533

Michael HOWARD, et al., on behalf of themselves and all

others similarly situated, Plaintiffs-Appellants,
v.
John L. McLUCAS, et al., Defendants-Appellees,
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, Plaintiff-Appellee,
v.
John C. STETSON, et al., Defendants-Appellees,
Robert Poss, et al., Movants-Appellants.
No. 84-8999.

United States Court of Appeals,

Eleventh Circuit.
Feb. 20, 1986.

Edward T.M. Garland, Austin E. Catts, Robin N. Loeb, Charles A.

Shanor, Atlanta, Ga., for Poss, et al.
James W. Howard, Atlanta, Ga., for Howard, et al.
Peter Maier, John F. Cordes, Civil Div., Appellate Staff, Dept. of Justice,
Washington, D.C., for McLucas, et al.
Bill Lann Lee, Center for Law in the Public Interest, Los Angeles, Cal.,
for plaintiff class of black employees.
Appeals from the United States District Court for the Middle District of
Georgia.
Before HILL and CLARK, Circuit Judges, and HOBBS* , Chief District
Judge.
HILL, Circuit Judge:

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 Brooks withdrawn and the Legal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.

This appeal involves claims by two different groups. Plaintiff-appellants, who

are four of the named plaintiffs and twenty-seven other class members, appeal
the order removing Ms. Turner and designating the Legal Defense Fund as lead
counsel and also the consent decree, seeking an opt out procedure. Intervenorappellants appeal from the order denying intervention and the consent order.3

DISCUSSION
4

* Under Fed.R.Civ.P. 24(a), an applicant for intervention must claim "an

interest relating to the property or transaction which is the subject of the action
and ... that the disposition of the action may as a practical matter impair or
impede his ability to protect that interest...." Intervenor-appellants claim
standing to intervene because both remedial provisions of the consent decree
will adversely affect their rights. We agree that intervenor-appellants clearly

have no standing to challenge the backpay award. This award compensates

class members for alleged past racial discrimination; it does not result in
unequal compensation for current services on the basis of race. Intervenorappellants thus have no particularized financial interest in the backpay award,
only a general grievance insufficient to challenge a governmental expenditure.
Valley Forge Christian College v. Americans United for Separation of Church
and State, Inc., 454 U.S. 464, 471-76, 485, 102 S.Ct. 752, 757-61, 765, 70
L.Ed.2d 700 (1981); Schlesinger v. Reservists Committee to Stop the War, 418
U.S. 208, 227-28, 94 S.Ct. 2925, 2935-36, 41 L.Ed.2d 706 (1974).
5

Intervenor-appellants have, however, alleged an interest that will be affected by

the promotional remedy. The district court found they lacked standing to
contest this remedy because they had no vested right to a promotion and the
consent decree had a de minimus effect on their generalized expectation of
consideration for promotions. A vested interest in one of the 240 target
promotions is not required. Intervenor-appellants claim 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. See e.g., Vanguards of Cleveland v. City of
Cleveland, 753 F.2d 479, 484 (6th Cir.) ("[R]egardless of how moderate the
preference given to the plaintiff class, and how modest the detriment placed
upon the intervenor class, there will be some detriment to the latter group."),
cert. granted, --- U.S. ----, 106 S.Ct. 59, 88 L.Ed.2d 48 (1985); Kirkland v. New
York State Department of Correctional Services, 711 F.2d 1117, 1126 (2d
Cir.1983) (non-minority third parties have sufficient interest to argue decree is
unreasonable or unlawful), cert. denied, 465 U.S. 1005, 104 S.Ct. 997, 79
L.Ed.2d 230 (1984).

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

prejudiced by intervention. Unlike the situation in Jefferson County, however,

intervention in this case, would not prolong a "pattern of past discriminatory
practices," Jefferson County, 720 F.2d at 1517, because Warner Robins
changed its promotion rating system before the consent decree. The consent
decree contains only remedies designed to correct past discrimination.
Moreover, because we hold appellants have no standing to challenge the
backpay award, intervention would affect only the promotional remedy.
Although we recognize that this case has been pending a considerable time, any
prejudice that might result from intervention can be minimized by allowing
only limited conditional intervention. Likewise, limiting intervention to a
challenge of the remedy only insofar as it restricts intervenor-appellants'
promotional opportunities solely on account of race will protect against
nullification of the entire settlement. Cf. Kirkland v. New York State
Department of Correctional Services, 711 F.2d 1117, 1125-28 (2d Cir.1983)
(granted conditional intervention to challenge race-conscious promotional
remedies; no right to veto proposed compromises), cert. denied, 465 U.S. 1005,
104 S.Ct. 997, 79 L.Ed.2d 230 (1984). More significantly, the district court
failed to consider the potential prejudice to the defendant implicit in its
suggestion that aggrieved white employees could bring individual reverse
discrimination suits in lieu of intervention. In that event, the defendant
employer would have to defend itself in multiple suits for conduct mandated by
the consent decree. We conclude the parties would be prejudiced more
substantially by denying intervention than by allowing it.
14

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

Finally, intervenor-appellants raise an important question regarding the legality

of the race-conscious promotional remedy that would be foreclosed in a
separate reverse discrimination suit. Jefferson County, 720 F.2d at 1518. This is

an unusual circumstance militating in favor of finding the intervention was

timely. There are no such circumstances against intervention.
16

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

We have examined the plaintiff-appellants' claims and find no abuse of

discretion. None of the named plaintiffs objected to the district court's
substitution of the Legal Defense Fund as lead class counsel; they told the
district court they wanted the "representation which would best protect the

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

AFFIRMED in part; VACATED in part, and REMANDED for proceedings not

inconsistent with this opinion.5
CLARK, Circuit Judge, dissenting:

22

I cannot agree that the applicants for intervention ("intervenors") have

demonstrated the interest (in intervention) and prejudice (if not allowed to
intervene) required to be entitled to intervene under Fed.R.Civ.P. 24(a), let
alone to persuade us that the district court abused its discretion in denying
intervention.

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

What little information we have about the intervenors is contained in nine

24

What little information we have about the intervenors is contained in nine

affidavits submitted to the district court after the Fairness Hearing on the
consent decree. Appellees have convincingly refuted the claims set out in the
affidavits that the intervenors would be eligible for the target promotions and
have demonstrated that these intervenors would not be considered for the
promotions they claim are to be denied them solely on account of race. The
district court adopted in its Opinion and Order Granting Final Approval to the
Amended Consent Decree (Record at 1539) the findings contained in appellees'
"Joint Proposed Order Granting Final Approval to the Consent Decree." The
court found that the intervenors would not be eligible for the target promotions
because they are either less qualified than many class members or, although
similarly qualified, ranked well below many class members on the register
from which the promotions are made. Two of the intervenors aspire to positions
that are not included among the target positions. Record at 1479-84. Thus, the
district court found not merely that the intervenors have no vested right in the
target promotions, but that they are not even eligible to compete for the target
promotions.

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

The cases cited by the majority are of no help to intervenors' position. In

Vanguards of Cleveland v. City of Cleveland, 753 F.2d 479 (6th Cir.), cert.

granted sub nom. Local 93, International Association of Firefighters v. City of

Cleveland, --- U.S. ----, 106 S.Ct. 59, 88 L.Ed.2d 48 (1985), the union had
already been granted intervention and represented a class of employees alleged
to be aggrieved by a promotion remedy adopted by consent decree. The interest
of the union members in intervention had thus already been established. There
was no question that the promotion remedy operated to the detriment of some
of the class members, so the court found the intervenors sufficiently aggrieved
to challenge the legality of the consent decree. We have no way of knowing
what evidence the union presented to support its motion for intervention or how
the court would have ruled had there been no evidence of detriment to the
intervenor class. Likewise, in Kirkland v. New York State Department of
Correctional Services, 711 F.2d 1117 (2d Cir.1983), cert. denied, 465 U.S.
1005, 104 S.Ct. 997, 79 L.Ed.2d 230 (1984), the court was not faced with the
issue of the sufficiency of the intervenors' interest to challenge the legality of
the consent decree. Rather, the court was asked to determine whether the nature
and extent of the intervenors' interest was sufficient to require that they be
granted full intervention instead of the limited conditional intervention
permitted by the district court. We know nothing about the extent to which the
intervenors would suffer real injury from implementation of the remedy there at
issue. Neither of the cases cited by the majority support the proposition
advanced.
27

If the promotion remedy operates to the detriment of some non-black

employees, none of these employees has come forward to challenge the decree.
A party seeking to represent a class does not have standing to represent that
class solely by virtue of alleged injury to unknown class members. The named
plaintiff must independently " 'possess the same interest and suffer the same
injury' as the class members." East Texas Motor Freight System, Inc. v.
Rodriquez, 431 U.S. 395, 404, 97 S.Ct. 1891, 1896, 52 L.Ed.2d 453 (1977)
(holding that plaintiffs who lacked qualifications to be hired as drivers suffered
no injury from alleged discriminatory practices and therefore lacked standing to
represent class of persons who did suffer injury) (quoting Schlesinger v.
Reservists Committee to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 2929,
41 L.Ed.2d 706 (1974)). A particularized nexus between the injury inflicted by
the challenged action and the party must be demonstrated before the party will
be allowed to proceed with the suit. The majority too readily permits those
offended, though not injured, by affirmative action to interfere with a voluntary
and limited effort to remedy past discrimination.

28

Inextricably intertwined with the majority's holding with respect to the

intervenors' interest in the promotion remedy is an assumption that the
intervenors' legal argument states a cause of action:Intervenor-appellants claim

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

Majority Op., at 959 (emphasis added). Requiring no showing that the

intervenors would be eligible for the targeted promotions if not for their race,
the majority suggests that the fact that nondiscriminatees may participate in the
promotion remedy confers an interest on the intervenors and would, if true,
render the promotion remedy illegal.

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

Furthermore, the spectre of multiple individual law suits is simply not

compelling. In the first place, as previously shown, intervenors have not
managed to find any non-black employee with sufficient interest in the targeted
promotions to make out a case of race discrimination; it is unlikely that the
courts will be flooded with reverse discrimination suits. In the second place,
nothing forecloses the intervenors from bringing a separate class action, rather
than myriad individual suits, to challenge the promotion remedy. Intervenors
claim that burdensome multiple litigation will result from denial of intervention
is more like an idle threat than evidence of prejudice.

34

Furthermore, it is relevant to the determination whether intervenors would be

prejudiced by denial of intervention to inquire whether they are likely to
succeed on the merits of their challenge to the promotion remedy. These
intervenors are so unlikely to prevail that I believe they could not be prejudiced
by a denial of intervention. As already noted, their Stotts claim is foreclosed by
Turner. A Weber claim that the non-black employees' interests are
unnecessarily trammelled by the promotion remedy would fail because the
intervenors have demonstrated no interest in the target promotions to be
trammelled. Nor have they made any showing that the remedy is unnecessary
or otherwise inconsistent with Weber. In fact, it is entirely consistent with
Weber in that it does not require the discharge of non-black employees, does
not create an absolute bar to the advancement of non-black employees, is
designed merely to eliminate racial imbalance and is of limited duration.
Weber, 443 U.S. at 209, 99 S.Ct. at 2730.

35

The majority thus vacates a promotion remedy that has already been half

implemented7 and remands for a determination whether the promotion remedy

discriminates against non-black employees on account of race because it
allegedly benefits nondiscriminatees--an assessment that the district court has
already concluded in favor of appellees and that is not due to be reversed under
the current state of the law. This result throws implementation of the consent
decree into question and unnecessarily wastes the time and resources of the
parties and the district court. Because the intervenors have demonstrated no
interest that is adversely affected by the promotion remedy and would not be
prejudiced if denied the opportunity to intervene,8 I must respectfully dissent
from the majority's decision to reverse the district court's order denying
intervention.

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

We note provisional jurisdiction to review the denial of intervention under this

circuit's "anomalous rule." If we find the district court's decision was correct,
we must dismiss for lack of jurisdiction; if we find the district court abused its
discretion, we retain jurisdiction and must reverse. United States v. Jefferson
County, 720 F.2d 1511, 1515 (11th Cir.1983); Stallworth v. Monsanto Co., 558
F.2d 257, 263 (5th Cir.1977)

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

constitutionality of the promotional remedy. If it is constitutional, it is not,

nevertheless, demanded. If implementation would have an adverse impact upon
the promotion expectations of intervenors, they should be granted the
opportunity to demonstrate that and should be heard in opposition to these
provisions
1

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 discusses prejudice to the intervenors as one of the factors to be

considered in assessing the timeliness of the motion for intervention. Under
Fed.R.Civ.P. 24(a) prejudice is an independent factor to be considered in
deciding whether intervention of right is called for. Even if their motion for
intervention was otherwise timely, the non-black employees have not shown
that the consent decree will "impair or impede" their ability to protect their
interests as required by Rule 24(a)

The majority implies, but never states, that the intervenors would be prejudiced
were intervention denied

Upon reviewing Jefferson County, the district court found that:

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

Although I have focused on only two elements of the intervention issue, I am

also troubled by the balance of the majority's discussion of the timeliness issue.
I wonder whether intervenors--who surely ought to have suspected that the
eventual outcome of this case might have some adverse effect on their interests-should not share some of the burden of keeping apprised of the progress of the
law suit. It is highly prejudicial to the parties to allow the intervenors to make
their motion whenever they happen to learn of the adverse effect, even after a
year of complex negotiations, without any consideration of the prejudice to the
existing parties from intervention
Under the second factor in timeliness, prejudice to existing parties from undue
delay, the majority considers the burden on the employer if it must defend
multiple law suits because intervention is denied. Aside from the fact that such
a burden will likely not materialize, it is not for the court to weigh the prejudice
to the existing parties from denial of intervention. We may assume that they
perform their own calculations in deciding whether to enter into and defend a
consent decree.
Finally, the majority states that the "intervenor-appellants raise an important
question regarding the legality of the race-conscious promotions remedy that
would be foreclosed in a separate reverse discrimination suit. This is an unusual
circumstance militating in favor of [intervention]." If the point here is that the
intervenors will be prejudiced by denial of intervention, that factor has already
been weighed in favor of intervention and should not be double-counted. If the

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.