Reeves v. Wilkes, 84-8022

• Decision Date: 08 March 1985
• Docket Number: No. 84-8022,84-8022
• Citation: 754 F.2d 965
• Parties: 37 Fair Empl.Prac.Cas. 302, 36 Empl. Prac. Dec. P 35,067, 1 Fed.R.Serv.3d 809 James REEVES, et al., Plaintiffs-Appellants, James A. Harrell, James B. Dean, Jr., and others, Plaintiffs-Intervenors-Appellees, v. Ray WILKES, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 965

754 F.2d 965

37 Fair Empl.Prac.Cas. 302,

36 Empl. Prac. Dec. P 35,067, 1 Fed.R.Serv.3d 809

James REEVES, et al., Plaintiffs-Appellants James A. Harrell, James B. Dean, Jr., and others Plaintiffs-Intervenors-Appellees, v. Ray WILKES, et al., Defendants-Appellees.

No. 84-8022.

United States Court of Appeals Eleventh Circuit.

March 8, 1985.

Robert E. Steele, Jr., Macon, Ga., for plaintiffs-appellants.

O. Hale Almand, Jr., Macon, Ga., for Wilkes and Civ. Ser Carey P. DeDeyn, Thomas M. Byrne, Atlanta, Ga., Manley F. Brown, Macon, Ga., for intervenors.

Appeal from the United States District Court for the Middle District of Georgia.

Before HENDERSON and HATCHETT, Circuit Judges, and NICHOLS ^*, Senior Circuit Judge.

HATCHETT, Circuit Judge:

In this employment discrimination case we must determine whether the district court erred in allowing intervention several years after entry of a consent decree and implementation of a remedial plan. Finding error, we reverse.

On March 24, 1978, James Reeves, a black male employed as a deputy sheriff in the Bibb County Sheriff's Department, commenced this litigation. On behalf of himself and all black deputy sheriffs then employed by the Bibb County Sheriff's Department and a class composed of all past, present, and future black applicants for employment, Reeves alleged racially discriminatory practices in hiring, job assignments, and promotions within the sheriff's department. The lawsuit named Sheriff Wilkes, but did not name deputies or allege that white deputies participated in or were responsible for any of the acts of discrimination.

During litigation, the parties voluntarily negotiated and entered into a "Stipulation for Settlement," which included a proposed "Consent Decree" to resolve all issues raised in the complaint. On May 24, 1979, the district court provisionally approved the stipulation and consent decree and scheduled a hearing on the fairness and reasonableness of the proposed settlement. On June 18, 1979, the district court approved the consent decree and entered a formal order. White deputies did not participate in the June 18 hearing; they were not given formal notice of the hearing or copies of the consent decree.

Among other things, the consent decree established certain mandatory racial quotas for hiring and promotion within the Bibb County Sheriff's Department. For hiring, the decree required that 50 percent of all entry level vacancies for deputy sheriff positions be filled by black applicants until such time as 40 black deputies were employed. Equal promotion policies were required, but unlike the hiring provision, the promotion section of the consent decree established no time limit or numerical cutoff goal for the period of its operation. The promotion provision, part VIII, paragraph 12, which is central to this lawsuit provides:

PART VIII--AFFIRMATIVE ACTION--PROMOTIONAL GOALS

12. A part of the objective of this order is to achieve a work force in which the promotion of black employees, is equal, (a) by job classification, (b) by department, and (c) by rate of pay. In furtherance of this promotion goal, during the term of this order, defendants shall adopt the promotion goals referred to below:

a. All personnel in the sheriff's department will be made aware of the requirements for promotion to their next highest position.

b. At least semi-annually personnel eligible for promotion will be notified.

c. Each year at least fifty percent (50%) of the promotions will be blacks who have met the requirements for promotion to their next highest position.

d. This system is to be followed until the court shall determine that the defendants have complied in good faith with this order and the requirements of federal laws relating to employment practices. ¹

Pursuant to the decree, the Sheriff was required to file with the court, under seal, detailed periodic reports on the hiring, promotion, and transfer activities within the department. The decree also gave the district court continuing jurisdiction over the case for enforcement purposes and gave defendants the right to move for dissolution of the decree upon a showing of good faith compliance.

On February 17, 1982, James A. Harrell and James B. Dean, Jr., white deputies, filed a motion to intervene in this litigation as party plaintiffs. Harrell and Dean sought intervention requesting that the court discontinue the promotion provisions. They alleged that the promotion quota provision was discriminating against them and adversely impacting their rights and interests and those of other white deputies under the Fourteenth Amendment to the United States Constitution and 42 U.S.C.A. Secs. 1981 and 1983 (West 1981). They did not make a collateral attack upon the legality of the decree, nor seek to review any prior promotion decisions made under the decree. The court granted intervention. Subsequently, on June 15, 1983, the intervenors filed their motion to dissolve or modify the promotion provision of the consent decree, contending that "good faith" had been established and that the remedial purpose sought to be accomplished by the provision had been served.

On August 9, 1983, the district court held an evidentiary hearing on the intervenors' motion. On December 9, 1983, the district court granted the intervenors' motion and dissolved the promotion provision, part VII, paragraph 12. The only issue we address is whether the district court erred in granting the motion to intervene.

Discussion

Reeves contends that the motion to intervene was untimely. Leave for permissive intervention is governed by Fed.R.Civ.P. 24(b) which provides:

(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question or law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. [Emphasis added.]

The question whether an application for intervention is timely is largely committed to the district court's discretion, and its determination will not be overturned on appeal absent an abuse of discretion. NAACP v. New York, 413 U.S. 345, 93 S.Ct. 2591, 37 L.Ed.2d 648 (1973); United States v. Jefferson County, 720 F.2d 1511 (11th Cir.1983).

The standards for analyzing the timeliness of an application for intervention are set forth in Stallworth v. Monsanto, 558 F.2d 257 (5th Cir.1977). In Stallworth, nonunion white employees sought intervention in a civil rights case instituted by black employees claiming that remedial provisions of a consent order entered by a district court unnecessarily deprived white employees of their seniority rights. On appeal, the appellate court reversed the district court's order denying intervention as untimely. The four factors considered in assessing timeliness included: (1) the length of time during which the intervenor actually knew or reasonably should have known of his interest in the case before he petitioned for leave to intervene; (2) the extent of the prejudice that the existing parties to the litigation may suffer as a result of the would be intervenor's failure to apply for intervention as soon as he actually knew or reasonably should have known of his interest in the case; (3) the extent of the prejudice that the would be intervenor may suffer if his petition for leave to intervene is denied; (4) the existence of unusual circumstances militating either for or against a determination that the application is timely. Stallworth, 558 F.2d 257.

Recently, in United States v. Jefferson Co., 720 F.2d 1511 (11th Cir.1983), we again addressed the issue of timeliness of intervention to curtail the application of a consent decree. Applying the Stallworth test, we held that the district court properly denied the motion to intervene as untimely. In Jefferson Co., consent decrees incorporated affirmative action remedies in hiring and promotion policies of the City of Birmingham, Alabama. Seven white members of the Birmingham Firefighters Association (BFA) moved to intervene; the district court denied their motion as untimely. Similarly, in this case, for reasons discussed below, we find Harrell and Dean's motion to intervene untimely.

Factor 1

Harrell and Dean contend that their motion was timely because they filed it as soon as they discovered that they might be adversely affected by the continued compliance with the consent decree. The intervenors argue that they did not appreciate the potential adverse impact of the consent decree at its inception, nor were they provided notice of the decree's implementation or terms. The intervenors insist that they do not seek to undo the previous accomplishments attained under the decree or to substantially alter its application as a whole. Rather, they contend that the indefinite duration of the promotion provision has or will continue to unfairly affect their interests.

The first factor of the Stallworth test focuses on what the would be intervenor actually knew or reasonably should have known regarding his interest in the case before he petitioned for leave to intervene. The record reveals that throughout the pendency of Reeves's suit, two local newspapers, The Macon Telegraph and The Macon News, provided continuous coverage of the case's development. The articles reported the case as a class action challenging race discrimination in hirings and...