Howard v. McLucas , 782 F.2d 956 ( 1986 )

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. § 2000e et seq.).

FACTS¹

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 Brooks withdrawn and the Legal Defense Fund substituted as lead counsel.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 period² 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

DISCUSSION

I

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).

II

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 remedy only insofar as it restricts intervenor-appellants’ promotional opportunities solely on account of race will protect against nullification of the entire settlement. Cf Kirkland v. New York State Department of Correctional Services, 711 F.2d 1117, 1125-28 (2d Cir.1983) (granted conditional intervention to challenge race-conscious promotional remedies; no right to veto proposed compromises), cert. denied, 465 U.S. 1005, 104 S.Ct. 997, 79 L.Ed.2d 280 (1984). More significantly, the district court failed to consider the potential prejudice to the defendant implicit in its suggestion that aggrieved white employees could bring individual reverse discrimination suits in lieu of intervention. In that event, the defendant employer would have to defend itself in multiple suits for conduct mandated by the consent decree. We conclude the parties would be prejudiced more substantially by denying intervention than by allowing it.

The third factor addresses the extent the applicant would be prejudiced if intervention is denied. The district court found intervenor-appellants were not prejudiced because they could bring reverse discrimination suits against the defendant employer. Although one whose interests are not represented in the decree may be allowed to bring a reverse discrimination action, Jefferson County, 720 F.2d at 1517-19, that alone does not negate prejudice. The central claim in any such suit would be an allegation that the race-conscious promotion of a class member violated the Constitution and Title VIL A defense based on the consent decree would raise the issue whether action mandated by the consent decree would be exempt from liability without affording non-black employees an opportunity to challenge the decree. Id. at 1518. Moreover, the burden multiple reverse discrimination suits would impose on judicial economy is an important consideration in determining whether intervention is appropriate. Cf. Stallworth v. Monsanto Co., 558 F.2d at 265.

Finally, intervenor-appellants raise an important question regarding the legality of the race-conscious promotional remedy that would be foreclosed in a separate reverse discrimination suit. Jefferson County, 720 F.2d at 1518. This is an unusual circumstance militating in favor of finding the intervention was timely. There are no such circumstances against intervention.

For the foregoing reasons, we conclude the district court abused its discretion in denying the motion to intervene. We therefore reverse the district court’s order denying intervention and vacate that portion of the consent decree that mandates the promotional relief.

Intervenors are limited to challenging the portion of the remedy that reserves 240 target position promotional opportunities to class members. They have no standing to contest the existence of past discrimination or any other issue concerning the merits of the dispute and no standing to contest the backpay award or veto remedial measures in general. The only issue intervenors shall be permitted to raise on remand is their contention that white and non-black employees will not be considered for promotion to the 240 target positions on an equal basis with nondiscriminatee black employees solely on account of race.

The district court and the parties have been laboring with this case for over a decade.⁴ It is in the best interests of the court and all the parties that this case, once apparently settled, be now resolved with the least delay consistent with this remand. Therefore, the district judge should limit discovery narrowly to the single issue which intervenors are permitted to address and set and enforce strict time limits for its accomplishment. To ensure that discovery and other necessary proceedings are accomplished as quickly and efficiently as possible, the district court should enjoin all parties to require good faith cooperation and impose sanctions upon any party obstructing prompt, efficient and complete discovery as ordered by the district court.

We recognize that all parts of the settlement are so interrelated that resolution of this issue on remand may substantially affect the parties’ agreement to the settlement as a whole. Therefore, the district court should allow the original parties to reassess their agreement to any part of the consent decree after the issue presented by intervenors has been decided.

Ill

We have examined the plaintiff-appellants’ claims and find no abuse of discretion. None of the named plaintiffs objected to the district court’s substitution of the Legal Defense Fund as lead class counsel; they told the district court they wanted the “representation which would best protect the merits of their claim.” (R. 451-52). The district court concluded the Legal Defense Fund would best represent the class because of Ms. Brooks’ distance and lack of resources, the court’s concern that Ms. Brooks would not adequately represent absent class members, and because the Legal Defense Fund had carried the primary litigation burden. (R. 453-54). The district court acted reasonably within its power and duty to protect the interests of the class, including absent class members. In re Fine Paper Antitrust Litigation, 617 F.2d 22, 27 (3d Cir.1980). We also find no abuse of discretion in the district court’s failure to include an opt out provision in the consent decree. Plaintiff-appellants did not seek an opt out provision at the fairness hearing, do not contest the fairness of the consent decree to the class, and do not allege claims unique to individual class members. The general rule is that members of a class certified under Fed.R. Civ.P. 23(b)(2) have no automatic right to opt out of the settlement. Holmes v. Continental Can Co., 706 F.2d 1144, 1153 (11th Cir.1983). We find this case does not present uniquely individualized or heterogenous interests entitling plaintiff-appellants to an opt out provision. Id. at 1159-60.

AFFIRMED in part; VACATED in part, and REMANDED for proceedings not inconsistent with this opinion.⁵

1 . The issues in this appeal do not concern the merits of plaintiffs’ discrimination claim. We therefore recite only those facts relevant to the issues before us.

2 . The proposed consent order and decree originally included black employees employed by Warner Robins from March 24, 1972 to the date the court approved the settlement. The parties amended this provision to limit the target promotions to class members hired before January 1, 1980.

3 . We note provisional jurisdiction to review the denial of intervention under this circuit’s "anomalous rule.” If we find the district court’s decision was correct, we must dismiss for lack of jurisdiction; if we find the district court abused its discretion, we retain jurisdiction and must reverse. United States v. Jefferson County, 720 F.2d 1511, 1515 (11th Cir.1983); Stallworth v. Monsanto Co., 558 F.2d 257, 263 (5th Cir. 1977).

4 . Litigation time may well have mooted the issue on which remand is ordered. Though sought, stay of the consent was not granted. The dissent which has now been prepared, refers to an implementation report indicating that much of the decree had been implemented in July. Of course, it was necessary for both the majority and dissenting opinions to be prepared before the judgment of this court could be made effective. The district court will want to inquire into mootness before proceeding further.

5 . Merely because we are remanding the case does not imply that we believe the proposed intervenors should prevail. We hold merely that before the district court orders implementation of the consent decree, the proposed intervenors should be allowed to intervene. Specifically, we do not pass upon the constitutionality of the promotional remedy. If it is constitutional, it is not, nevertheless, demanded. If implementation would have an adverse impact upon the promotion expectations of intervenors, they should be granted the opportunity to demonstrate that and should be heard in opposition to these provisions.