Davis v. Butts, 01-10425. Non-Argument Calendar.

• Decision Date: 09 May 2002
• Docket Number: No. 01-10425. Non-Argument Calendar.,01-10425. Non-Argument Calendar.
• Citation: 290 F.3d 1297
• Parties: Nathaniel DAVIS, John R. Green, Danny R. Manley, Proposed Intervenors-Appellants, Johnny Reynolds, individually and on behalf of himself and representative of a class of black employees of the Highway Department, State of Alabama, similarly situated, Plaintiff-Appellee, Cecil Parker, Robert Johnson, et al., Intervenors-Plaintiffs, William Adams, Cheryl Caine, Tim Colquitt, William A. Flowers, Wilson Fomas on behalf on themselves and a class of all non-black employees of the Al. Dept. of Transportation, et al., Intervenors-Plaintiffs-Appellees, v. Jim BUTTS, in his official capacity as Director of the Alabama Department of Transportation, Department of Transportation, State of Alabama, Department of Personnel, State of Alabama, Ray Bass, Marvin Wagonner, et al., Defendants-Appellees, NAACP Legal Defense and Education Fund, Inc., The Lawyers' Committee for Civil Rights Under Law, Amicus.
• Court: U.S. Court of Appeals — Eleventh Circuit

290 F.3d 1297

Nathaniel DAVIS, John R. Green, Danny R. Manley, Proposed Intervenors-Appellants Johnny Reynolds, individually and on behalf of himself and representative of a class of black employees of the Highway Department, State of Alabama, similarly situated, Plaintiff-Appellee Cecil Parker, Robert Johnson, et al., Intervenors-Plaintiffs William Adams, Cheryl Caine, Tim Colquitt, William A. Flowers, Wilson Fomas on behalf on themselves and a class of all non-black employees of the Al. Dept. of Transportation, et al., Intervenors-Plaintiffs-Appellees, v. Jim BUTTS, in his official capacity as Director of the Alabama Department of Transportation, Department of Transportation, State of Alabama, Department of Personnel, State of Alabama, Ray Bass, Marvin Wagonner, et al., Defendants-Appellees NAACP Legal Defense and Education Fund, Inc., The Lawyers' Committee for Civil Rights Under Law, Amicus.

No. 01-10425. Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

May 9, 2002.

Mickey McDermott, Montgomery, AL, for Proposed Intervenors-Appellants.

Susan Salonimer Wagner, Lisa Wright Borden, Wesley C. Redmond, Berkowitz, Lefkovits, Isom & Kushner, Robert L. Wiggins, Jr., Russell Wayne Adams, Kimberly C. Page, Kell A. Simon, Ann K. Wiggins, Gordon, Silberman, Wiggins & Childs, P.C., R. Scott Clark, J. Michael Cooper, Raymond P. Fitzpatrick, Jr., Fitzpatrick, Cooper & Clark, Birmingham, AL, Jimmie R. Ippolito, Alice Ann Byme, Montgomery, AL, Claudia H. Pearson, Vestavia Hills, AL, for Appellees.

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

Before ANDERSON, Chief Judge, and TJOFLAT and DUBINA, Circuit Judges.

TJOFLAT, Circuit Judge:

In this case, Danny Manley, Nathaniel Davis, and John Green, employees of the Alabama Department of Transportation ("ALDOT"), appeal the district court's denial of a motion to intervene in litigation against ALDOT (the "Reynolds litigation").¹ Because the denial of a motion to intervene is not a final judgment, which 28 U.S.C. § 1291 requires for appellate jurisdiction, we sua sponte raised the question whether we had jurisdiction to hear the appeal of the proposed intervenors.

Manley, Davis, and Green contend that we have such jurisdiction under this circuit's "anomalous rule." Under this rule, "the court has jurisdiction to determine whether the denial of intervention [is] proper. If the district court was correct in denying the motion to intervene, this court's jurisdiction evaporates and we must dismiss the appeal for want of jurisdiction. If the district court erred, we retain jurisdiction and must reverse." F.T.C. v. Am. Legal Distribs., Inc., 890 F.2d 363, 364 (11th Cir.1989). This rule only applies, however, if what the district court denied was intervention as a matter of right under section (a) of Rule 24 of the Federal Rules of Civil Procedure, and not permissive intervention under section (b) of that very same rule.² "Standing alone, an order denying permissive intervention is neither a final decision nor an appealable interlocutory order because such an order does not substantially affect the movant's rights." Meek v. Metro. Dade County, 985 F.2d 1471, 1476 (11th Cir.1993). Therefore, whether we have jurisdiction over the instant appeal ultimately hinges on whether the plaintiffs were seeking intervention as a matter of right or permissive intervention.

Recognizing this fact, the plaintiffs have asserted in their briefs that they moved in the district court for intervention as a matter of right. This contention belies their actual motion, in which they asked to intervene "[p]ursuant to Rules 24(a) and 24(b)." Moreover, just because they moved for intervention as a matter of right does not mean they were entitled to do so; the district court may have decided that they had no right to intervene under Rule 24(a) and treated their motion as one for permissive intervention under Rule 24(b).³ See Worlds v. Dep't of Health and Rehabilitative Servs., 929 F.2d 591, 595 (11th Cir.1991) ("If there is no right to intervene under Rule 24(a), it is wholly discretionary with the court whether to allow intervention under Rule 24(b) and even though there is a common question of law or fact, or the requirements of Rule 24(b) are otherwise satisfied, the court may refuse to allow intervention.") (quoting 7C Charles A. Wright, et al., Federal Practice and Procedure § 1913, at 376-77 (2d ed.1986) (footnotes omitted)).

In order for a party to intervene as a matter of right under Rule 24(a), he must establish:

(1) his application to intervene is timely; (2) he has an interest relating to the property or transaction which is the subject of the action; (3) he is so situated that disposition of the action, as a practical matter, may impede or impair his ability to protect that interest; and (4) his interest is represented inadequately by the existing parties to the suit.

Purcell v. BankAtlantic Fin. Corp., 85 F.3d 1508, 1512 (11th Cir.1996) (quoting Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir.1989)). Here, the proposed intervenors — one black employee and two white employees — seek to intervene in the Reynolds litigation, because they believe their interests are not being represented. The Reynolds litigation, however, involves charges of racial discrimination by ALDOT against its employees. It is unclear how Manley, Davis, and Green, who are already represented demographically in the Reynolds litigation by either the black plaintiff class or the Adams Intervenors (an already approved group of non-black intervenors), can claim that their interests are not being represented in the litigation.

In actuality, their alleged interests — non-race-related violations of Consent Decree I and the use of a recent reclassification study, the HayGroup study, to circumvent Consent Decree I — have little to do with the racial discrimination that was the basis of the Reynolds litigation. They simply believe that ALDOT has violated Consent Decree I, which the district court for the Middle District of Alabama adopted on March 16, 1994, as a partial settlement of the Reynolds litigation. Even if we assume that their allegations are true, they have not shown how the disposition of the Reynolds litigation, as a practical matter, may impede or impair their ability to seek recompense for violations of Consent Decree I. They are still free to...