Cotter v. MA Assoc. of Minority Law Enforcement Officers

Citation219 F.3d 31
Decision Date06 April 2000
Docket NumberNo. 00-1056,00-1056
Parties(1st Cir. 2000) WINIFRED N. COTTER, ET AL., Plaintiffs, Appellees, v. MASSACHUSETTS ASSOCIATION OF MINORITY LAW ENFORCEMENT OFFICERS, DENNIS A. WHITE and HAROLD WHITE, Proposed Intervenors, Appellants. CITY OF BOSTON, JAMES J. HARTNETT, JR., Defendants, Appellees. Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. William G. Young, U.S. District Judge.

Rheba Rutkowski with whom Jonathan M. Albano, Bingham Dana LLP, and Grace M. Jones, Lawyers Committee for Civil Rights Under Law of the Boston Bar Association, were on brief for proposed intervenors, appellants.

Michael C. McLaughlin with whom Law Offices of Michael C. McLaughlin was on brief for plaintiffs, appellees.

Before: Boudin, Stahl and Lipez, Circuit Judges.

BOUDIN, Circuit Judge.

On May 21, 1999, Winifred Cotter and seven other white officers of the Boston Police Department brought an action under section 1983, 42 U.S.C. § 1983, alleging that plaintiffs' constitutional rights to equal protection were violated by the promotion to sergeant of three black officers of the Boston Police Department. The plaintiffs and the three promoted officers all scored 84 on a promotional exam administered in October 1996. The complaint alleged that the three minority officers were promoted to sergeant for the purpose of maintaining or increasing minority representation among sergeants and that the eight plaintiffs were excluded from promotion because they were white.

The complaint cited various police department documents that plaintiffs say evidence a preoccupation with race in the decision to promote the three minority officers and not the plaintiffs, but defendants' answer disputes the inferences to be drawn. The relief sought in the complaint is an order of the court requiring that the plaintiffs be promoted to the sergeant position, retroactive to December 12, 1997, that plaintiffs be awarded damages, including but not limited to wages and benefits that would have been earned if promotion had occurred in a timely manner, and that plaintiffs be awarded attorney's fees.

At this stage the merits are not before us. Rather, the only issue presented on this appeal is whether the minority officers who were promoted are entitled to intervene as of right and whether intervention as of right should also be allowed to the Massachusetts Association of Minority Law Enforcement Officers ("MAMLEO"). The chronology of the case and history of the intervention effort are as follows.

The complaint was amended on July 29, 1999, limiting the defendants to the City of Boston and James Hartnett, Jr., who heads a Commonwealth office involved in personnel matters. In August 1999, Hartnett moved for dismissal of the claims against him on the ground that he was not responsible for the promotion decision. When the district court denied the motion to dismiss in October 1999, Cotter v. City of Boston, 73 F. Supp. 2d 62 (D. Mass. 1999), Hartnett moved to certify to the Massachusetts Supreme Judicial Court questions of law concerning his authority. In this same period, two of the three black officers promoted to sergeant--Dennis White and Harold White--moved to intervene as of right as defendants in the case, as did MAMLEO.

The plaintiffs objected to the intervention, while the defendants acquiesced in it. In a two-sentence margin order entered on November 23, 1999, the district court denied the intervention motion but gave MAMLEO the right to file amicus briefs. Shortly thereafter, the district court set a discovery deadline of September 30, 2000. On December 30, 1999, an appeal was filed to this court by the two sergeants and MAMLEO. We refused to grant a stay of proceedings in the district court but expedited this appeal.

The denial of intervention claimed as of right is immediately appealable, Flynn v. Hubbard, 782 F.2d 1084, 1086 (1st Cir. 1986), but plaintiffs object to our consideration of the appeal, arguing that none of the would-be intervenors can demonstrate Article III standing. The parties argue in their briefs about whether intervenor-defendants are required to show standing, an issue on which the Supreme Court has reserved judgment, Diamond v. Charles, 476 U.S. 54, 68-69 (1986). Fortunately, there is no need to grapple with this question here.

Under Article III, a critical ingredient for standing is that a party have a concrete stake in the outcome of a dispute that is otherwise fit for resolution by the courts. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982). Consonantly, absent a statutory basis for intervention, an applicant seeking to intervene as of right must show that

the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

Fed. R. Civ. P. 24(a)(2) (emphasis added). Thus, in the ordinary case, an applicant who satisfies the "interest" requirement of the intervention rule is almost always going to have a sufficient stake in the controversy to satisfy Article III as well. See Transamerica Ins. Co. v. South, 125 F.3d 392, 396 n.4 (7th Cir. 1997).

Standing is an immensely complicated set of doctrines, Chemerinsky, Federal Jurisdiction § 2.3, at 56-57 (3d ed. 1999), and it may be that there are unusual cases where an intervenor could satisfy the interest requirement of Rule 24(a)(2) without having the stake in the controversy needed to satisfy Article III. Here, no peculiar circumstances of this kind are urged. Accordingly, we see no reason to concern ourselves with the abstract question whether an intervenor-defendant must show some separate form of standing. We therefore turn to the question whether the applicants do satisfy the various requirements for intervention as of right, prefacing this inquiry with a brief reference to the standard of review.

On appeal from the denial of intervention as of right, it is commonly said that review of the district court decision is for "abuse of discretion," but this may be a misleading phrase. Decisions on abstract issues of law are always reviewed de novo; and the extent of deference on "law application" issues tends to vary with the circumstances, see Ross-Simons of Warwick, Inc. v.Baccarat, Inc., 102 F.3d 12, 16 (1st Cir. 1996). In all events, Rule 24(a)(2)'s explicit standards "considerably restrict[] the [district] court's discretion." See International Paper Co. v. Inhabitants of the Town of Jay, Maine, 887 F.2d 338, 344 (1st Cir. 1989) (quoting Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 382 n.1 (1987) (Brennan, J., concurring)).

The applicants for intervention cite to us authority from other circuits that where (as here) the district judge makes no findings and gives no reasons, review of denial of intervention should be de novo, League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997); Edwards v. City of Houston, 78 F.3d 983, 1000 (5th Cir. 1996) (en banc). This court has not followed this approach, International Paper, 887 F.2d at 343-44, because in many situations, the district court's findings or reasons can be reasonably inferred. See United States v. Owens, 167 F.3d 739, 743 (1st Cir.), cert. denied, 120 S. Ct. 224 (1999). If they cannot be inferred, then there is nothing to which to give deference.

Turning to the merits, the central question whether what an applicant for intervention is claiming is "an interest relating to the property or transaction which is the subject of the action," Fed. R. Civ. P. 24(a)(2), is peculiarly difficult to answer. The drafters may very well have had in mind a rather concrete common law interest, such as an applicant's ownership claim to a piece of property in dispute between two other parties, but Supreme Court cases have expanded the notion without setting any very firm limits. Daggett v. Commission on Governmental Ethics & Election Practices, 172 F.3d 104, 110 (1st Cir. 1999). The doctrinal "rules" are so general as to provide very little help, see 7C Wright, Miller & Kane, Federal Practice and Procedure § 1908 (2d ed. 1986 & Supp. 2000), and the diversity of facts and interests that may be affected by litigation today is so broad as to make any simple formula difficult, if not impossible, to contrive.

Here, the question whether the two applicant sergeants claim an "interest relating to the property or transaction which is the subject of the action" seems to us relatively easy to answer. In substance, the complaint challenges the validity of their promotions: it says that they were impermissibly preferred in advancement, and the plaintiffs excluded, on racial grounds. This amounts to saying that their promotions were based on an unconstitutional decision or process, and to say that an officer has no interest in defending his own promotion would be to defy common sense.

Admittedly, the plaintiffs have not asked that the promotions be voided and the contest begun again; instead, the plaintiffs would naturally prefer promotion for themselves with back pay. But the plaintiffs do not make the final decision as to what relief should be afforded if the district court does find a constitutional violation. There are cases enough where, in the employment context, courts have undone hiring or promotion decisions tainted by wrongful motives or practices. E.g., Jones v.Rivers, 732 F. Supp. 176, 179 (D.D.C. 1990).

The second question posed by the intervention rule--whether the intervention applicants' ability to protect their interest "may" be "impair[ed] or impede[d]" if they are not allowed to intervene, Fed. R....

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