U.S. v. Jefferson County

• Decision Date: 12 December 1983
• Docket Number: Nos. 81-7761,82-7129,s. 81-7761
• Parties: 33 Fair Empl.Prac.Cas. 829, 33 Empl. Prac. Dec. P 33,973 UNITED STATES of America, Plaintiff-Appellee, v. JEFFERSON COUNTY, et al., Defendants-Appellees. John W. MARTIN, et al., Plaintiffs-Appellees, v. CITY OF BIRMINGHAM, et al., Defendants-Appellees. ENSLEY BRANCH OF THE NAACP, et al., Plaintiffs-Appellees, v. George SEIBELS, et al., Defendants-Appellees, Birmingham Firefighters Association 117, Proposed Intervenor-Appellant. James A. BENNETT, et al., Plaintiffs-Appellants, v. Richard ARRINGTON, Jr., etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1511

720 F.2d 1511

33 Fair Empl.Prac.Cas. 829,

33 Empl. Prac. Dec. P 33,973

UNITED STATES of America, Plaintiff-Appellee, v. JEFFERSON COUNTY, et al., Defendants-Appellees.

John W. MARTIN, et al., Plaintiffs-Appellees, v. CITY OF BIRMINGHAM, et al., Defendants-Appellees.

ENSLEY BRANCH OF THE NAACP, et al., Plaintiffs-Appellees, v. George SEIBELS, et al., Defendants-Appellees,

Birmingham Firefighters Association 117, Proposed

Intervenor-Appellant.

James A. BENNETT, et al., Plaintiffs-Appellants, v. Richard ARRINGTON, Jr., etc., et al., Defendants-Appellees.

Nos. 81-7761, 82-7129.

United States Court of Appeals, Eleventh Circuit.

Dec. 12, 1983.

Rehearing and Rehearing En Band Denied Jan. 20, 1984.

William W. Conwell and Raymond P. Fitzpatrick Jr., Foster & Conwell, Birmingham, Ala., for the proposed intervenors-appellants in No. 81-7761 and for the plaintiffs-appellants in No. 82-7129.

William L. Robinson, Stephen L. Spitz, Lawyers' Committee for Civil Rights Under Law, Washington, D.C.; St. John Barrett, Barnett & Alagia, Washington, D.C.; and Susan W. Reeves, Reeves & Still, Birmingham, Ala.; for plaintiffs-appellees, John W. Martin et al. in No. 81-7761 and for defendants-appellees John W. Martin et al. in No. 82-7129.

Frank W. Donaldson, U. S. Atty., and Caryl P. Privett, Asst. U. S. Atty., Birmingham, Ala.; Wm. Bradford Reynolds, Asst. Atty. Gen. and Robert T. Moore, Richard J. Ritter, Attys., Dept. of Justice, Civil Rights Div., Washington, D.C.; for the plaintiff-appellee United States in No. 81-7761.

James K. Baker, City Atty.; James P. Alexander and Eldridge D. Lacy, Bradley, Arant, Rose and White, Birmingham, Ala.; for the defendant-appellee, City of Birmingham, in both No. 81-7761 and No. 82-7129.

Hubert A. Grissom, Jr., David P. Whiteside, Jr. and Michael Hall, Johnston, Barton, Proctor, Swedlaw and Neff, Birmingham, Ala.; for the defendant-appellee Personnel Bd. of Jefferson County, Ala., in both No. 81-7761 and No. 82-7129.

Appeals from the United States District Court for the Northern District of Alabama.

Before TJOFLAT, FAY and ANDERSON, Circuit Judges.

TJOFLAT, Circuit Judge:

In January 1974 the Ensley Branch of the NAACP ¹ and John Martin ² each filed a separate class action complaint in the district court against the Jefferson County, Alabama, Personnel Board (Board) and the City of Birmingham, Alabama (City). They alleged that the Board and the City violated, inter alia, Title VII of the Civil Rights Act ³ through racially discriminatory hiring and promotion in various public service jobs, including firefighters. ⁴ In May 1975, the United States also filed a complaint in the district court alleging similar discrimination against blacks and women by the Board and the City. ⁵

These three cases were consolidated for discovery and trial purposes. In December 1976, the district court held a bench trial limited to the issue of the validity of the written tests used by the Board and the City to screen police and firefighter applicants. The court found that the tests had a severe adverse impact on black applicants and concluded that the tests therefore violated Title VII. The court directed entry of final judgment for the plaintiffs on this issue, pursuant to Fed.R.Civ.P. 54(b), and the defendants appealed. While their appeal was pending, the district court tried the remaining claims pending against the Board only.

After we ruled on the district court's decision concerning the written tests, Ensley Branch of NAACP v. Seibels, 616 F.2d 812 (5th Cir.) cert. denied sub nom. Personnel Board v. United States, 449 U.S. 1061, 101 S.Ct. 783, 66 L.Ed.2d 603 (1980), ⁶ the plaintiffs, in all three cases, entered into extensive negotiations with the Board and the City which culminated in two proposed consent decrees, one with the Board ⁷ and one with the City. ⁸ The former disposed of all of the plaintiffs' claims against the Board; the latter disposed of all the plaintiffs' claims against the City. The two consent decrees incorporated some affirmative action remedies in hiring and promotional policies. ⁹

The court provisionally approved these consent decrees in June 1981, but reserved final approval until it convened a fairness hearing to consider the objections of all interested parties. The court held that hearing in August 1981, at which it considered, among others, the objections filed by the Birmingham Firefighters Association 117 (BFA), ¹⁰ as amicus curiae. The day after the hearing, BFA and two of its members (BFA members) moved, pursuant to Fed.R.Civ.P. 24(a), to intervene of right in each of the three cases, contending that the proposed consent decrees would have a substantial adverse impact upon them. The court denied their motions as untimely, and approved, and entered, both consent decrees.

Seven individual white male firefighters (Firefighters) then filed a complaint in the district court against the Board and the City ¹¹ to enjoin the enforcement of the consent decrees on the ground that the operation of the decrees would discriminate against them in violation of Title VII of the Civil Rights Act. They applied for a preliminary injunction, which, after a hearing, the district court denied.

The BFA members and the Firefighters then appealed from the court's denials of the motion to intervene and the preliminary injunction. We note provisional jurisdiction to review the denial of the motion to intervene, under our "anomalous rule"; ¹² if we find the motion to have been properly denied, we must dismiss for lack of jurisdiction. We note jurisdiction, pursuant to 28 U.S.C. Sec. 1292(a)(1) (1976), to review the denial of the preliminary injunction.

I.

The district court denied the BFA members' motion to intervene on the ground that it was untimely filed. The question of timeliness is largely committed to the district court's discretion; therefore, we review the court's action only for an abuse of discretion. Howse v. S/V "Canada Goose I", 641 F.2d 317, 320 (5th Cir. Unit B 1981); Stallworth v. Monsanto Co., 558 F.2d 257, 263 (5th Cir.1977).

A district court must consider four factors in assessing timeliness, namely (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. Stallworth, 558 F.2d at 264-66. This analysis applies whether intervention of right or permissive intervention under Fed.R.Civ.P. 24 is claimed. Id., citing United Airlines, Inc. v. McDonald, 432 U.S. 385, 387, 97 S.Ct. 2464, 2466, 53 L.Ed.2d 423 (1977); NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 2602-03, 37 L.Ed.2d 648 (1973); Smith Petroleum Service, Inc. v. Monsanto Chemical Co., 420 F.2d 1103, 1115 (5th Cir.1970).

Under the first factor of the timeliness test, the district court correctly concluded that the BFA members did not act seasonably. The BFA members contend that their motion was timely because they filed it just as soon as they discovered that they might be adversely affected by a final adjudication of the plaintiffs' claims in these cases. It is true, as we said in Stallworth, that mere knowledge of the pendency of an action, without appreciation of the potential adverse effect an adjudication of that action might have on one's interests, does not preclude intervention. The BFA members, however, knew at an early stage in the proceedings that their rights could be adversely affected, as was evidenced by their conversations with the City regarding the tactics the City should take in defending the action; yet they failed to seek intervention.

The BFA members contend that their failure to move to intervene was justified, and therefore should have been excused, because they were entitled to assume that the City and the Board would protect their interests. There are, of course, certain circumstances under which one is entitled to assume that a party will protect one's interests. The Supreme Court made this clear in United Airlines, which the BFA members argue controls this case. There, a stewardess filed a class action contesting a no-marriage rule that United applied only to female employees. The district court refused to certify a class, and the stewardess failed to appeal. Another stewardess moved the district court for leave to intervene in order to file the appeal. The district court denied her motion, and she appealed from that denial. The Court of Appeals reversed, with instructions to permit intervention on remand, and the Supreme Court affirmed. The Supreme Court justified the failure of the second stewardess to move to intervene earlier because "as soon as it became clear to [her] that the interests of the unnamed class members would no longer be protected by the named class representative, she promptly moved to intervene...." Id. 432 U.S. at 394, 97 S.Ct. at 2470. The Court thus recognized that the second stewardess had the right to rely on the first to represent her.

The BFA members had no identity of interest with the City in the way that the unnamed class member shared an interest with the named class representative in United Airlines. From the beginning, the Board and the City represented a wide range of occupations in the public sector and had different cost-benefit settlement interests, and incentives, from those of the BFA members. Thus, the mere fact that the Board and the City made a settlement allegedly adverse to the interests of BFA members does not mean that they "changed their position and became adverse" as the BFA members alleged in their motion to intervene. Rather,...