Howard v. McLucas

Decision Date20 February 1986
Docket NumberNo. 84-8999,84-8999
Parties40 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.
CourtU.S. Court of Appeals — Eleventh Circuit

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.).


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 Brooks withdrawn and the Legal Defense Fund substituted as lead counsel.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 period 2 to 240 "target" positions. The district court gave preliminary approval to the consent decree on June 18, 1984; intervenor-appellants, 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. Intervenor-appellants appeal from the order denying intervention and the consent order. 3


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. Intervenor-appellants 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).

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).


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:

(1) the length of time during which the would-be intervenor knew or reasonably 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 would-be 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.

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.

Under the first factor, the district court incorrectly concluded intervenor-appellants 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.

It is especially unrealistic to say that the whites should have known from the outset 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.

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.

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...

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