Edwards v. City of Houston ( 1994 )

United States Court of Appeals,
Fifth Circuit.
Nos. 93-2315, 93-2476.
Dorothy A. EDWARDS, et al., individually and on behalf of all
others similarly situated, Plaintiffs-Appellees,
v.
CITY OF HOUSTON, Defendant-Appellee,
v.
Terry HUGHES, individually and as a Representative of the Houston
Airport Police Officers' Association and its Officers and Sergeants
of the former Airport Police Force and Houston Police Patrolmen's
Union, Intervenors-Plaintiffs, Movant-Appellants,
and
McLoy Medlock, Richard Humphrey, Willie Fields and Bennie L.
Green, Movants-Appellants.
Dorothy A. EDWARDS, et al., individually and on behalf of all
others similarly situated, Plaintiffs-Appellees,
v.
CITY OF HOUSTON, Defendant-Intervenor-Appellee,
v.
HOUSTON POLICE PATROLMEN'S UNION, ETC., and the individual peace
officers identified in appendix A., an affiliate of The
International Union of Police Associations, AFL-CIO, Local 109,
Intervenor-Plaintiff and Movant-Appellant,
and
McLoy Medlock, Richard Humphrey, Willie Fields and Bennie L.
Green, Consolidated-Plaintiffs and Movant-Appellants,
and
Doug Elder and Mark Clark, individually and as representatives of
the general membership of the Houston Police Officers Association
and all Class A Police Officers holding the Rank of Police Officer
and Sergeant of Police, Movant-Appellants.
Nov. 10, 1994.
1
Appeals from the United States District Court for the Southern
District of Texas.
Before REYNALDO G. GARZA, DeMOSS and PARKER, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
Organizations representing different members of the Houston
Police Department sought to intervene in a consent decree entered
into by the City of Houston and a class of black and hispanic
police officers. The district court denied intervention in the
underlying case and also intervention for purposes of appeal. The
organizations appeal the denial of these motions and also claim
that consent decree violates Title VII and the Equal Protection
Clause of the Fourteenth Amendment.
We find that the district court appropriately denied the
motions to intervene in the underlying case; accordingly, we
DISMISS those appeals. We find, however, that the district court
erred in denying the motions to intervene for purposes of appeal.
Therefore, we REVERSE the district court in this matter. Finally,
we find that the consent decree survives scrutiny under Title VII
and the Equal Protection Clause of the Fourteenth Amendment.
Therefore, we AFFIRM the district court's approval of the consent
decree.
I. BACKGROUND
The original Complaint in this action was filed on August 19,
1992, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e et seq., as amended by the Civil Rights Act of 1991 and the
Equal Employment Opportunity Act of 1972. The plaintiffs in this
action filed timely charges of racial discrimination with the EEOC,
2
alleging that the City of Houston's promotional examinations for
the ranks of Sergeant and Lieutenant in the Houston Police
Department discriminated against African-Americans and Hispanic-
Americans between August 29, 1991 and March 26, 1992.1 Efforts to
obtain redress for the Police Department's allegedly discriminatory
tests began in 1975 and 1976, when Kelley v. Hofheinz, C.A. No H-
75-1536, and Comeaux v. City of Houston, C.A. No. 76-H-1754, were
filed.
Among other claims, the Kelley and Comeaux cases raised the
claim that the promotional examinations of the Houston Police
Department discriminated against African-American police officers
based on their race in violation of Title VII. These challenges to
the promotional tests were based upon 1975 and 1976 EEOC charges of
racial discrimination in the promotional tests. In 1979, the
Comeaux action was consolidated into Kelley. In 1983, there were
unsuccessful settlement discussions between the Kelley plaintiffs
and the City of Houston.
On April 16, 1992, the City of Houston refused to consent to
the intervention in Kelley of the Afro-American Police Officers
League, the Houston Police Organization of Spanish Speaking
Officers, and a group of African-American and Hispanic-American
police officers. On April 17, 1992 the above groups moved for
1
The entry-level uniformed position within the Houston
Police Department is Police Officer. The first promotional
position is currently the rank of Sergeant. Police Officers with
two years of service as Police Officers are allowed to compete
for the rank of Sergeant. The second promotional position is the
rank of Lieutenant. Sergeants with two years of service as
Sergeants are allowed to compete for the rank of Lieutenant.
3
leave to intervene in Kelley, alleging that they had been harmed by
racially discriminatory promotional examinations for the ranks of
Sergeant and Lieutenant in the Houston Police Department, that the
disposition of Kelley could impair their interests, and that in
light of the passage of time, their interests were not being
represented effectively in Kelley. On the same day, the City of
Houston moved to dismiss Kelley for want of prosecution.
A hearing was held on June 15, 1992, on the City of Houston's
motion to dismiss Kelley, and on the motion for leave to intervene.
The district court dismissed all claims in Kelley for want of
prosecution except for test-promotion related claims after January
1, 1982, the district court also denied the application for leave
to intervene, ordered the applicants for intervention to file a new
lawsuit to be transferred to the same court, directed that the
remainder of Kelley be consolidated into the new lawsuit, and
ordered that the new plaintiff class consist of blacks and
hispanics. This case was timely filed on August 19, 1992, after
receipt of Notices of Right to Sue issued by the Attorney General
of the U.S. The remnant of the Kelley case was then consolidated
into this action.
The plaintiffs in this action alleged that the challenged
examinations had the effect of disproportionately excluding
African-Americans and Hispanic-Americans from promotion to Sergeant
from 1982 to date, and of disproportionately excluding African-
Americans from promotion to Lieutenant from 1982 to date. They
further alleged that the examinations were not job-related or
4
consistent with business necessity. The plaintiffs sued on their
own behalf, on behalf of the African-American and Hispanic-American
members of the Police Department who took a Sergeant examination
from 1982 to date or who will compete for promotions to Sergeant in
the future.
Settlement negotiations began in earnest between the
plaintiffs and defendant City of Houston in the fall of 1992. The
settlement negotiations resulted in a proposed Consent Decree which
was submitted to the district court in final form on January 21,
1993. On February 3, 1993, the district court ordered that notice
be given to all current and former Class A Peace Officers of the
City of Houston whose rights and interests were affected by the
Consent Decree tentatively approved by it on that date. The notice
stated that a free copy of the Consent Decree could be acquired
from the Legal Services Division of the Houston Police Department.
The notice also stated that March 12, 1993 was the deadline for
filing objections, and that a fairness hearing was scheduled for
March 24, 1993.
Before the fairness hearing was conducted, representatives of
the following groups moved to intervene in the main case: Houston
Police Patrolmen's Union2 ("HPPU"); the original named plaintiffs
in the Comeaux action (McLoy Medlock, et al.); Houston Police
2
The HPPU appellants are comprised of 109 individual Class A
Peace Officers who held the position of police officer on
February 3, 1993, and 22 individual Class A Peace Officers who
held the position of Sergeant on that date. The HPPU appellants
sought to intervene as class representatives of all similarly
situated Class A Peace Officers holding the rank of police
officer, Sergeant, or Lieutenant.
5
Officers Association3; Female Police Officers; Asian Police
Officers; and Houston Parks Police Officers.
On March 17, 1993, the district court signed an order
informing the parties that a hearing on the motions for
intervention was scheduled for March 22, 1993. At the hearing, the
Houston Airport Police Officers Association4 made an oral motion to
intervene. It later filed a written motion on March 23, 1993.
After the hearing, the district court denied all of the motions for
intervention, including the Airport Police Officers oral motion.
On March 24, 1993, the district court held the fairness
hearing. At the fairness hearing, the applicants for intervention
were allowed to: (1) cross-examine witnesses, including the
plaintiffs' statistical experts and the Chief of Police; (2)
proffer evidence; and (3) raise any objections to the Consent
Decree. The district court again denied the motions for
intervention, but allowed the applicants for intervention to file
motions to intervene for purposes of appeal.
On March 25, 1993, the district court certified the following
class:
a. All African-Americans who are employed, or at any time
since January 1, 1982 were employed, as Class A peace officers by
the Houston Police Department and who took a promotional
3
Doug Elder and Mark Clark, individually and as
representatives of the Houston Police Officers Association, and
all Class A Police Officers, holding the rank of Police Officer
and Sergeant of Police.
4
Terry Hughes, present and former Airport Police and Airport
Police Officers Association.
6
examination for the rank of Lieutenant or for the rank of Sergeant
which was administered at any time from January 1, 1982 to the
present, and those who will compete for such promotions in the
future; and
b. All Hispanic-Americans who are employed, or at any time
since January 1, 1982 were employed, as Class A peace officers by
the Houston Police Department and who took a promotional
examination for the rank of Sergeant which was administered at any
time from January 1, 1982 to the present, and those who will
compete for such promotions in the future.
On March 25, 1993, the district court made one modification to
the Consent Decree and made the Consent Decree a final judgment.5
Under the terms of the Consent Decree, African-Americans and
Hispanic-Americans who took an examination for Sergeant from
January 1, 1982 to date, and who passed at least one examination
for this rank, will receive a total of 96 remedial promotions;
African-Americans and Hispanic-Americans who took an examination
for Sergeant from January 1, 1982 to date, and who were promoted
after a discriminatorily long waiting period which delayed their
ability to compete for Lieutenant promotions will receive five
remedial promotions to Lieutenant; and African-Americans who took
5
The district court added the following sentence after the
first sentence of paragraph 34.
A person who receives a remedial promotion will receive
compensatory retroactive seniority only back to the
date six months after the earliest test that person
took for the position, even if the promotion arises
from a disparity in an earlier test.
7
an examination for Lieutenant from January 1, 1982 to date, and
passed at least one examination for this rank will receive a total
of five remedial promotions. The named plaintiffs in this lawsuit
who meet the necessary conditions shall have priority. The
remedial promotions will be made over a five-year period. The
district court saw this as a concession of great magnitude by the
plaintiffs. The Consent Decree does not provide for any back pay.
The Consent Decree seeks, during the next ten years, to reduce
the amount of adverse impact against African-Americans and
Hispanic-Americans taking exams for Sergeant and Lieutenant: (a)
by striking "racially biased items"; and (b) by extending the life
of promotional registers during this period of time to two years.
The Consent Decree supersedes some provisions of the Fire and
Police Civil Service Act and the Texas Local Government Code
chapter 143, as amended. Paragraph 55 provides a mechanism for
striking from the test those items which the City identifies as
biased items and which are not job-related. Paragraph 55(g)
provides that the promotional registers of test passers remain in
effect for two years rather than one. Finally, the need to perform
statistical analysis of responses and to examine test items for
bias necessitates a short postponement of release of the test
results. Paragraph 55(f) requires that an eligibility list for
promotions be posted as soon as possible.
On May 20, 1993 the district court denied motions to intervene
for purposes of appeal by the following groups: Houston Police
Patrolman's Union ("HPPU"); Houston Airport Police Officers
8
Association; Female Police Officers; Houston Police Officers
Association; and the original named plaintiffs in the Comeaux
action (McLoy Medlock, et al.).
The HPPU appellants and the Houston Airport Police Officers
Association appeal the district court's denial of their motions to
intervene in the underlying case. The HPPU appellants, the Houston
Airport Police Officers Association, the Houston Police Officers
Association, and the original named plaintiffs in the Comeaux
action appeal the district court's denial of their motions to
intervene for purposes of appeal. The HPPU appellants and the
original named plaintiffs in the Comeaux action also appeal the
district court's approval of the Consent Decree. Finally, the
Houston Airport Police Officers Association appeals the district
court's approval of paragraph 61 of the Consent Decree, entitled
"Reclassification of Peace Officers."6
II. DISCUSSION
1. Did the district court improperly deny the appellants' motions
to intervene in the underlying case?
The HPPU appellants and the Houston Airport Police Officers
Association appeal the district court's denial of their motions to
intervene in the underlying case. They claim that the district
court improperly denied their motions to intervene. They claimed
the right to intervene pursuant to Federal Rule of Civil Procedure
6
The Houston Parks Police Officers filed an amicus brief in
support of the Airport Police Officers position.
9
24(a)7 in part based upon the Civil Rights Act of 1991 provision
which prohibits subsequent attacks on a Consent Decree entered in
a Title VII proceeding, through separate litigation unless the
objections and complaints are raised in the original proceeding.
(42 U.S.C. § 2000e-2(n)(1)(B)). They allege that by refusing to
permit intervention, the district court substantially limited their
ability to challenge the Consent Decree. They claim that they met
all the requirements for intervention of right.
The HPPU appellants assert that the principal ground relied
upon by the district court for denying their motion was timeliness.
They claim that their motion for intervention meets this court's
test for timeliness set out in Corley v. Jackson Police Dept., 755
F.2d 1207, 1209 (5th Cir.1985) (citing Stallworth v. Monsanto Co.,
558 F.2d 257, 263 (5th Cir.1977)). They first argue that they met
the district court's deadline by filing their motion on March 12,
1993. They further argue that their motion was filed just 37 days
after the district court published notice of the terms of the
Consent Decree and less than six months after the City of Houston
filed its answer denying all of the plaintiff's allegations. They
also argue that although rumors of a proposed consent decree began
7
Upon timely application anyone shall be permitted to
intervene in an action: (1) when a statute of the United States
confers an unconditional right to intervene; or (2) when 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. Federal Rule of
Civil Procedure 24(a).
10
to circulate in late December 1992, they were not able to obtain,
despite repeated efforts, any specific information regarding the
Consent Decree until the February 3, 1993 notice was published.
They claim that it was the appellees' own conduct, in refusing to
disclose the terms of the decree sooner, that caused any delay.
Finally, they argue that the appellees can hardly show prejudice
from any delay, since the appellees were required to give notice of
the decree so that objections could be filed.
The Airport Police Officers Association ("Airport Police")
also claims that its application to intervene was timely. The
Airport Police argue that they sought to intervene within a few
weeks after obtaining a copy of the proposed Consent Decree. The
Airport Police further argue that it is undisputed that they had no
possible way of knowing prior to obtaining a copy of the proposed
Consent Decree that it would contain a provision, such as paragraph
61, singling them out and seemingly intended to deny them the very
transfer rights they won after lengthy litigation with the City of
Houston.
The Airport Police also claim that they meet the test for
timeliness set out in Corley v. Jackson Police Dept., supra. The
Airport Police argue that the amount of time during which they
could have known of their interest in the case before seeking to
intervene was minimal. The Airport Police further argue that the
appellees have not shown prejudice from any delay. Finally, the
Airport Police argue that their prejudice from denial of
intervention is substantial.
11
The HPPU appellants and the Airport Police alternatively
sought permissive intervention under Federal Rule of Civil
Procedure 24(b).
Denial of intervention of right is a question of law which we
review de novo. Ceres Gulf v. Cooper, 957 F.2d 1199, 1202 (5th
Cir.1992). Denial of permissive intervention is reviewed for clear
abuse of discretion. Korioth v. Briscoe, 523 F.2d 1271, 1278 (5th
Cir.1975).
At the hearing on the applications for intervention in the
underlying case, the district judge stated that the appellants,
"were entitled to ask to intervene earlier." He also stated that
the appellants could not have more time, and that he was "not going
to delay this [process]." Finally, the district judge stated, "I
don't need an additional party's litigant at the last moment. Your
clients have a copy—or had available to them a copy of the Police
Chief's December 16th memorandum8 on the potential settlement."
8
Circular
Houston Police Department
December 16, 1992 No. 92-1216-1
SUBJECT: POTENTIAL SETTLEMENT
The Department has agreed in principle to settle a long standing
lawsuit regarding our promotional system. The details of this
settlement are still being negotiated; however, I want to give
as much correct information as I can now. A proposed version of
the agreement will be filed in Federal Court on Tuesday, December
22, 1992. Shortly after that date, I should be able to give you
detailed information. The following aspects are being negotiated
and are likely to become part of the final settlement.
12
Based on these statements, we conclude that the district court
denied the applications for intervention in the underlying case on
the basis of untimeliness.
"Whether leave to intervene is sought under section (a) or (b)
of Rule 24, the application must be timely." Stallworth v.
Monsanto Co., 558 F.2d 257, 263 (5th Cir.1977).
"Timeliness," ... is not a word of exactitude or of precisely
measurable dimensions. Rule 24 fails to define it, and the
Advisory Committee Note furnishes no clarification. As a
result, the question of whether an application for
intervention is timely is largely committed to the discretion
of the district court, and its determination will not be
overturned on appeal unless an abuse of discretion is shown.
Settlement Summary
1. A number, yet to be determined, of minority police officers
and sergeants will be promoted to sergeant and lieutenant. The
promotions will be based on the lists established during the
years 1982 through 1991.
2. Remedial promotions will be completed over a four to five year
period.
3. A statistical analysis will be utilized on future promotional
exams for sergeant and lieutenant to identify any racially biased
questions. The questions identified as such will be thrown out
after the tests.
4. Current and future sergeant and lieutenant promotional lists
will remain in existence for two years.
5. The procedures agreed on will be monitored by the Federal
Court for ten years.
6. All Class A officers will receive official notification of the
Court's consent decree and will be an opportunity to address
their concerns to the Court.
Sam Nuchia
Chief of Police
13
Id. (citing NAACP v. New York, 413 U.S. 345, 367, 93 S. Ct. 2591,
2603-04, 37 L. Ed. 2d 648 (1973)).
In Stallworth, we developed four factors to be considered in
determining whether a motion to intervene was timely:
Factor 1. The length of time during which the would-be
intervenor actually knew or reasonably should have known of
his interest in the case before he petitioned for leave to
intervene....
Factor 2. The extent of the prejudice that the existing
parties to the litigation may suffer as a result of the
would-be intervenor's failure to apply for intervention as
soon as he actually knew or reasonably should have known of
his interest in the case....
Factor 3. The extent of the prejudice that the would-be
intervenor may suffer if his petition for leave to intervene
is denied....
Factor 4. The existence of unusual circumstances
militating either for or against a determination that the
application is timely....
Id. at 264-66. "Stallworth is not an algorithm, but a framework
for analysis." Corley v. Jackson Police Dept., 755 F.2d 1207, 1209
(5th Cir.1985) (quoting Lelsz v. Kavanagh, 710 F.2d 1040, 1043 (5th
Cir.1983)).
As the appellees point out, Chief of Police Nuchia met with
the presidents of the Houston Police Officers Association and the
Houston Police Patrolmans Union on November 4, 1992. At these
meetings, Chief of Police Nuchia informed the representatives of
those two groups that the City of Houston was undergoing settlement
discussions with the plaintiffs. Moreover, on December 16, 1992,
Chief of Police Nuchia issued a departmental circular to all police
officers informing them of the potential settlement in this
lawsuit.
14
Factor 1. The appellants erroneously contend that we should
consider February 3, 1993, the date the district court sent out
formal notice, as the date from which to consider timeliness. As
Stallworth makes clear, timeliness is measured from the point in
time at which the applicant for intervention actually knew or
reasonably should have known of his interest in this case. Based
on the fact that Chief of Police Nuchia notified the appellants not
only personally, but through the form of a departmental circular,
there is no question that the appellants actually knew or should
have known of their interest in this case in November or December
of 1992. Therefore, the appellants waited three and a half to four
and a half months before applying for intervention. Standing
alone, this would probably not merit a finding of untimeliness,
however, it certainly does not bode in the appellants' favor.
Factor 2. The second factor relates to the prejudice to the
existing parties if the appellants' intervention is allowed. In
this case, what is of particular importance is not so much the
length of the appellants' delay in filing for intervention, as what
occurred during the period of that delay. During this period of
delay, the proposed Consent Decree was put into final conceptual
form. The interests of the City of Houston, of both groups in the
plaintiff class, and of other employees were considered and meshed
to the greatest extent possible; the number of remedial promotions
was negotiated; and the seniority complications caused by the
plaintiffs' concessions to the City of Houston and to
non-class-members in stretching out the remedial promotions over
15
five years were worked out. Therefore, as in Corley v. Jackson
Police Dept., 755 F.2d 1207, 1210 (5th Cir.1985), the prejudice is
apparent. "A negotiated settlement of a difficult problem is put
at risk, to the disadvantage of the named parties, the class, the
police department and the City." Id.
Factor 3. The third factor contemplates the extent of
prejudice the applicant for intervention would suffer if his motion
for intervention is denied. In this case, there is no prejudice to
the appellants. At the fairness hearing, the appellants were
allowed to present testimony and argument on their written
objections to the Consent Decree. The appellants were also allowed
to cross-examine Chief of Police Nuchia and the plaintiffs'
statistical experts. The district court considered all of the
appellants' objections to the Consent Decree. The district court,
in the Findings of Fact and Conclusions of Law, answered each of
the appellants' objections and stated why it was not persuaded by
their arguments. In essence, the appellants were treated as if
they were parties to the lawsuit. Thus, the appellants have
already been afforded the substance of the benefits of intervention
as to all their objections. The appellants have had their day in
court.
Factor 4. There are no unusual circumstances militating
either for or against a determination that the appellants'
applications were timely.
From the perspective of the Stallworth analysis, we find that
the district court did not abuse its discretion in rejecting the
16
appellants' applications for intervention. Therefore, the appeals
on the denial of intervention in the underlying case are dismissed.
2. Did the district court err in denying the appellants'
applications to intervene for purposes of appeal?
All of the appellants claim that the district court erred in
denying their motions to intervene for purposes of appeal. The
appellants claim that they meet all of requirements to intervene as
of right pursuant to Federal Rule of Civil Procedure 24(a). They
claim that this court established four requirements which must be
met to demonstrate a right to intervene: (1) the application to
intervene must be timely; (2) the applicant must have an interest
relating to the property or transaction which is the subject of the
action; (3) the applicant must be so situated that disposition of
the action may, as a practical matter, impair or impede, his
ability to protect that interest; and (4) the applicant's interest
must be inadequately represented by existing parties. New Orleans
Public Service v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th
Cir.) (en banc), cert. denied sub nom., Morial v. United Gas Pipe
Line Co., 469 U.S. 1019, 105 S. Ct. 434, 83 L. Ed. 2d 360 (1984).
The appellants all claim that their motions to intervene for
purposes of appeal were timely filed. They argue that their
motions were filed by the district court's April 19, 1993 deadline.
The HPPU appellants also claim that the district court, by
refusing to permit intervention, substantially limited the HPPU
appellants' ability to challenge the Consent Decree. They argue
that because the terms of the Consent Decree authorize the City of
Houston to continue to impermissibly discriminate against them, and
17
because the Consent Decree will remain in effect for ten years
under the district court's jurisdiction, the district court's
refusal to allow intervention has effectively denied them their
right to participate in this and future proceedings affecting their
promotional opportunities.
The Airport Police argue, with regard to the second factor of
the New Orleans Public Service test, that if the City of Houston
complies with paragraph 61 of the Consent Decree, they will be
confined to the airport and will be unable to transfer elsewhere in
the City for the next ten years of their careers. The Airport
Police argue that their career paths and promotional opportunities
will be sharply curtailed. The Airport Police conclude, therefore,
that their interest in this transaction is "legally protectable."
The Airport Police further argue that if the City complies
with paragraph 61, the City will violate the state court decree
which directs the City to afford each Airport Officer the same
transfer rights as are afforded to Officers of corresponding rank
in the Patrol Divisions of the Houston Police Department.
The original plaintiffs in the Comeaux action argue, in
reference to the third factor, that the Consent Decree impairs or
impedes their ability to protect their interests. They argue that
their claims for years prior to 1982 were literally wiped out.
They concede that these claims were dismissed in 1992. However,
they claim that this was in error and that they should have been
afforded relief in the Consent Decree. With regard to the fourth
factor, they claim that the plaintiffs had a clear interest in
18
dismissing the pre-1982 claims, and that the City had an interest
in dismissing those claims to avoid complying with any benefits or
back pay awards.
The Houston Police Officers Association argues with regard to
the fourth factor, that their interests in the underlying case were
not the same and to a large extent, diametrically opposite from
those of the plaintiffs and defendant City of Houston.
Specifically, the Consent Decree was the end result of settlement
negotiations between the plaintiffs and the City only. The
interests of the Houston Police Officers Association was in no way
factored into the settlement agreement. The Association further
argues that the remedial promotions will cause persons with lower
scores to be promoted over individuals who performed better on the
promotional exams.
All of the appellants alternatively sought permissive
intervention under Federal Rule of Civil Procedure 24(b). The
appellants argue that since their claims all arose out of the
proposed Consent Decree, there were common questions of law and
fact.
As stated earlier, denial of intervention of right is a
question of law which we review de novo. Ceres Gulf v. Cooper, 957
F.2d at 1202. In order to determine whether a party has
demonstrated a right to intervene, we examine the four requirements
set out in New Orleans Public Service, 732 F.2d at 463.
First, all of the appellants' motions to intervene were timely
filed. The appellants filed their motions before the district
19
court's deadline on filing the motions to intervene for purposes of
appeal.
With regard to the second requirement, the critical question
is what type of interest the appellants have in the promotional
system. To demonstrate an interest in the transaction sufficient
to support intervention as of right, an applicant "must demonstrate
a "direct, substantial and legally protectable' interest in the
property or transaction that is the subject of the suit." League
of United Latin American Citizens v. Clements, 884 F.2d 185, 187
(5th Cir.1989) (quoting New Orleans Public Service, 732 F.2d at
463). The appellants' interest is in making sure that the
promotional system is not manipulated in such a manner, that it
discriminates against them. This interest is sufficient to support
intervention as of right.
To meet the third requirement, the applicant must be so
situated that disposition of the action may, as a practical matter,
impair or impede, his ability to protect that interest. New
Orleans Public Service, 732 F.2d at 463. Although, the appellants
were treated as if they were parties in the underlying action, the
district court did not allow the appellants to benefit from
appellate review of the Consent Decree. The appellants were able
to protect their interests below because they were able to bring
forth all of their objections and arguments. However, part of the
ability to protect their interests is the ability to subjugate the
district court's disposition of their case to appellate scrutiny.
We stated earlier that the appellants have had their day in court.
20
Concomitant with having one's day in court is appellate review of
that day.
The fourth requirement inquires whether the applicant for
intervention's interest is adequately represented by existing
parties. Id. The appellants' interests were adequately protected
in the district court because they were given the opportunity to
represent their own interests. However, when the district court
denied their applications for intervention for purposes of appeal,
none of the existing parties adequately represented the appellants'
interests. This is evidenced by the fact that neither the City of
Houston nor the plaintiffs sought appellate review of the Consent
Decree. Those two parties were content with their settlement,
while the appellants obviously were not.
We find that the appellants meet all of the requirements to
intervene as of right for purposes of appeal. Thus, it is
unnecessary to determine whether the district court abused its
discretion in denying permissive intervention.
We, therefore, reverse the district court's denial of the
appellants' motions to intervene for purposes of appeal.
Having found that the district court erred in this manner, we
now turn to the appellants' substantive arguments.
3. Did the district court err in approving the Consent Decree?
The HPPU appellants argue that this circuit requires a
district court to become more involved in the settlement process
when it is called upon to approve a Title VII consent decree. They
argue that the district court failed to review the terms of the
21
Consent Decree and the evidence in support of it with sufficient
scrutiny. They also argue that the Eleventh Circuit has held that
the operative law for judging a consent decree is the same as that
for voluntary affirmative acts. In re Birmingham Reverse
Discrimination Employment Litigation, 833 F.2d 1492, 1501 (11th
Cir.1987). They further argue that the district court should have
used a strict scrutiny standard because the Consent Decree on its
face provides for both "racial quotas" and future racial
classifications. See City of Richmond v. J.A. Croson Co., 488 U.S.
469, 493, 109 S. Ct. 706, 721, 102 L. Ed. 2d 854 (1989). Finally,
they argue that the district court's failure to take into account
the special deference allowed to police departments in determining
"job related" testing, constituted an abuse of its discretion. See
Davis v. City of Dallas, 777 F.2d 205, 211 (5th Cir.1985), cert.
denied, 476 U.S. 1116, 106 S. Ct. 1972, 90 L. Ed. 2d 656 (1986).
The HPPU appellants also argue that in a case in which the
Fourteenth Amendment is properly invoked, race conscious relief may
only be employed to remedy identifiable past discrimination, and
relief may only be granted to the victims of that discrimination.
[F]or the governmental interest in remedying past
discrimination to be triggered "judicial, legislative, or
administrative findings of constitutional or statutory
violations" must be made. Only then does the government have
a compelling interest in favoring one race over another.
Richmond v. Croson, 488 U.S. at 497, 109 S.Ct. at 723 (quoting
California Regents v. Bakke 438 U.S. 265, 307, 98 S. Ct. 2733, 2757,
57 L. Ed. 2d 750 (1978)). Furthermore, the governmental entity must
have a "strong basis in evidence for its conclusion that remedial
22
action was necessary." Id. at 500, 109 S.Ct. at 725 (quoting
Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277, 106 S. Ct. 1842,
1848-49, 90 L. Ed. 2d 260 (1986)).
The HPPU appellants' argue that the district court failed to
require such a strong basis in the evidence. The only evidence of
past discrimination is the questionable statistical analysis
performed by plaintiffs' counsel. They also contend that there was
no attempt by the district court to determine whether the
promotional exams measured performance of skills necessary for the
jobs of Sergeant and Lieutenant of police within the Houston Police
Department. They further contend that the City did not make any
attempt to validate the contents of the exams.
The HPPU appellants argue that the law draws a distinction
between relief that is intended to remedy the effect of past
discrimination and relief which is designed to compensate an
individual who has been the specific victim of past discrimination.
See Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 578-
79, 104 S. Ct. 2576, 2587-88, 81 L. Ed. 2d 483 (1983). They contend
that in the instant case there was no evidence to support any
finding that any of the individuals who would be receiving the 106
remedial promotions were the actual victims of any discrimination.
They further contend that the Consent Decree establishes an
unconstitutional pool of positions available for the promotions of
individuals within the Houston Police Department based solely upon
their race. See generally Bakke; Wygant; Firefighters.
The HPPU appellants also contend that the Consent Decree fails
23
to narrowly tailor the prospective relief provided to the disparity
shown and unnecessarily trammels the interests of non-Black,
non-Hispanic officers within the Police Department in a way that
violates the standards applicable to even non-public employers.
See United Steel Workers of America v. Weber, 443 U.S. 193, 99
S. Ct. 2721, 61 L. Ed. 2d 480 (1979).
The HPPU appellants further contend that the Consent Decree
was collusive and/or fraudulent and/or transparently invalid. They
also contend that the Consent Decree contains several provisions
which violate Title VII. For example, the Consent Decree divests
them of vested promotional and seniority rights under a valid merit
based promotional testing procedure. Paragraph 55 of the Consent
Decree authorizes the Police Department to adjust future
promotional test scores on the basis of race. The Consent Decree
further provides for readjustment to scores in the event the "log
linear" analysis results in failing an officer who otherwise passed
the exam.
Finally, the HPPU appellants argue that the district court's
refusal to allow them, and others, to present the testimony they
had prepared to demonstrate the questionable validity of the
Consent Decree, deprived them of a fair and equal opportunity to
protect their rights under the law. Thus, their equal protection
and due process rights were impaired.
The Airport Police Officers claim that the district court
erred in approving paragraph 61 of the Consent Decree. They
contend that the legitimate purposes of the Consent Decree are to
24
cure the ethnic bias of the promotional exams and to improve the
racial mix of the Sergeant and Lieutenant ranks of the Police
Department. Paragraph 61 purports to further these goals by
totally excluding them from even taking the tests. They argue that
excluding them from taking the tests will not make the tests less
biased. Likewise, their exclusion has no relationship to improving
the racial mix of the Sergeant and Lieutenant ranks.
The original Comeaux plaintiffs argue that the Consent Decree
is woefully unjust, unfair, unreasonable and inadequate. Under the
Consent Decree some of the class members do not receive relief,
including monetary relief; the relief for the appellee-plaintiffs
is significantly greater than their relief; and some members of
the certified class are treated differently than other class
members. They also argue that the wrongful dismissal of their
claims precluded them from being included in the negotiations
leading to the Consent Decree. They further argue that even where
there is a clear record of delay, the sanction of dismissal is
justified only where a lesser sanction would not suffice.
Under the terms of the Consent Decree, African-Americans and
Hispanic-Americans who took an examination for Sergeant from
January 1, 1982 to date, and who passed at least one examination
for this rank, will receive a total of 96 remedial promotions.
Since African-Americans suffered 64.67 of the shortfall in Sergeant
promotions, they will receive 64.67 of the remedial promotions to
Sergeant, for a total of 62 remedial promotions to Sergeant.
Hispanic-Americans suffered 35.47 of the shortfall in Sergeant
25
promotions, hence, they will receive 35.47 of the remedial
promotions to Sergeant, for a total of 34 for remedial promotions
to Sergeant. African-Americans and Hispanic-Americans who took an
examination for Sergeant from January 1, 1982 to date, and who were
promoted after a discriminatorily long waiting period which delayed
their ability to compete for Lieutenant promotions will receive
five remedial promotions to Lieutenant. African-Americans will
receive three of those promotions and Hispanic-Americans will
receive two of those promotions. Finally, African-Americans who
took an examination for Lieutenant from January 1, 1982 to date,
and who passed at least one examination for this rank will receive
a total of five remedial promotions.
The Consent Decree seeks, during the next ten years, to reduce
the amount of adverse impact against black and hispanic police
officers taking the promotional exams by: (a) striking items
biased against any race; and (b) extending the life of the
promotional registers during this period to two years.
The appellants attack the Consent Decree's validity under
Title VII and the Equal Protection Clause of the Fourteenth
Amendment. Although the obligations of a public employer under
Title VII are similar to its obligations under the Federal
Constitution, they are not the same.9 We, therefore, examine each
9
Justice Scalia's dissent maintains that the obligations of
a public employer under Title VII must be identical to
its obligations under the Constitution, and that a
public employer's adoption of an affirmative action
plan therefore should be governed by Wygant.... "Title
VII, by contrast, was enacted pursuant to the commerce
power to regulate purely private decision making and
26
of the appellants' arguments in turn.
Validity under Title VII
"In Title VII litigation, this Court had held that the
district court is entitled to a substantial measure of discretion
in dealing with consent decrees, and that as a result "on appeal,
our duty is to ascertain whether or not the trial judge clearly
abused his discretion....' " Williams v. City of New Orleans, 729
F.2d 1554, 1558 (5th Cir.1984) (en banc) (quoting Cotton v. Hinton,
559 F.2d 1326, 1331 (5th Cir.1977)).
As a preliminary matter, we note that petitioner bears the
burden of establishing the invalidity of the [Consent
Decree].... Once a plaintiff establishes a prima facie case
that race or sex has been taken into account in an employer's
employment decision, the burden shifts to the employer to
articulate a nondiscriminatory rationale for its decision.
The existence of an affirmative action plan provides such a
rationale. If such a plan is articulated as the basis for the
employer's decision, the burden shifts to the plaintiff to
prove that the employer's justification is pretextual and the
plan is invalid. As a practical matter, of course, an
employer will generally seek to avoid a charge of pretext by
was not intended to incorporate and particularize the
commands of the Fifth and Fourteenth Amendments."
United Steelworkers of America v. Weber, 443 U.S. 193,
206 n. 6, 99 S. Ct. 2721, 2729 n. 6, 61 L. Ed. 2d 480
(1979).
The fact that a public employer must also satisfy the
Constitution does not negate the fact that the
statutory prohibition with which that employer must
contend was not intended to extend as far as that of
the Constitution.
Johnson v. Transportation Agency, 480 U.S. 616, 627 n. 6,
107 S. Ct. 1442; 1450 n. 6, 94 L. Ed. 2d 615 (1987)
(explaining why the Transportation Agency's affirmative
action plan should be analyzed under Weber (Supreme Court
addressed the question whether the employer violated Title
VII by adopting a voluntary affirmative action plan), rather
than Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 106 S. Ct.
1842, 90 L. Ed. 2d 260 (1986) (Equal Protection analysis)).
27
presenting evidence in support of its plan. That does not
mean, however, as petitioner suggests, that reliance on an
affirmative action plan is to be treated as an affirmative
defense requiring the employer to carry the burden of proving
the validity of the plan. The burden of proving its
invalidity remains on the plaintiff.
Johnson v. Transportation Agency, 480 U.S. 616, 626-27, 107 S. Ct.
1442, 1449, 94 L. Ed. 2d 615 (1987).
There is no doubt that the Consent Decree's remedial
promotions take race into account. Thus, the appellants have made
their prima facie case. We now turn to the validity of the Consent
Decree.
The Supreme Court in Johnson articulated a two-prong test for
determining whether a race-conscious affirmative action plan
comports with Title VII. "The first issue ... is whether the
consideration of sex [or race]10 of applicants ... was justified by
the existence of a "manifest imbalance' that reflected
underrepresentation of women [or minorities] in "traditionally
segregated job categories.' " Id. at 631, 107 S.Ct. at 1451-52
(citing Weber, 443 U.S. at 197, 99 S.Ct. at 2724). "We next
consider whether the Agency Plan [race-conscious plan]
unnecessarily trammeled the rights of male [or nonminority]
employees or created an absolute bar to their advancement." Id. at
637-38, 107 S.Ct. at 1455.
A.
10
"Because of the employment decision at issue in this case,
our decision henceforth refers primarily to the Plan's provision
to remedy the underrepresentation of women. Our analysis could
apply as well, however, to the provisions of the plan pertaining
to minorities." Johnson, 480 U.S. at 635 n. 13, 107 S. Ct. at
1454 n. 13.
28
In determining whether an imbalance exists that would justify
taking race into account, a comparison of the percentage of
minorities in the employer's workforce with the percentage in the
appropriate labor market is required. See Id. at 631-32, 107 S.Ct.
at 1451-52 (citing Teamsters v. United States, 431 U.S. 324, 97
S. Ct. 1843, 52 L. Ed. 2d 396 (1977). Where a job requires training,
the comparison should be with those minorities in the labor force
who possess the relevant qualifications. Id. (citing Hazlewood
School District v. United States, 433 U.S. 299, 97 S. Ct. 2736, 53
L. Ed. 2d 768 (1977). The manifest imbalance requirement is not the
same as a prima facie case against an employer. "A manifest
imbalance need not be such that it would support a prima facie case
against the employer, as suggested in Justice O'Connor's
concurrence, post, [480 U.S.] at 649 [107 S.Ct. at 1461], since we
do not regard as identical the constraints of Title VII and the
Federal Constitution on voluntarily adopted affirmative action
plans." Id. at 632, 107 S.Ct. at 1452; see also, Id. at 632 n.
10, 107 S. Ct. at 1453 n. 10 (explaining the difference between
"manifest imbalance" and "prima facie").
The plaintiffs' evidence contained statistical analysis on
each of the Sergeant and Lieutenant examinations from 1982 to 1991.
The plaintiffs provided the district court with statistical
evidence on the number of total test takers for each exam, the
number of test takers by racial or cultural classification, the
total number of those promoted, the number of those promoted by
classification, the percentage of those promoted by classification,
29
the promotion rates of blacks and hispanics as a percentage of
whites promoted, the number of expected promotions for blacks and
hispanics, the difference between actual and expected promotions
for blacks and hispanics, the number of standard deviations between
expected and actual promotions, and racial disparities in mean and
median written scores. The District Court found that no objector
presented any credible evidence that any factor other than the
challenged tests, accounted for any meaningful part of the racial
disparities in the promotion rates between the different racial
groups.
The relevant labor market that was used in this case was the
number of minority police officers who took the promotional
examinations. Undoubtedly, a comparison was made to the
appropriate labor market.11 We find that the plaintiffs established
a manifest imbalance in promotion rates for black and hispanic
officers, and that they brought this to the City of Houston's
attention.
B.
Having found that the Consent Decree meets the first
requirement of the Johnson analysis, we now examine whether the
Consent Decree unnecessarily trammels the rights of nonminorities
or creates an absolute bar to their advancement.
11
Johnson states that where a job requires special training,
the comparison should be with those in the labor force who
possess the relevant qualifications. Johnson, 480 at 632, 107
S. Ct. at 1452. Therefore, we do not reach the issue of whether
the number of minorities in the police force is the only relevant
labor market.
30
In this case, the Consent Decree does not provide any remedy
for blacks or hispanics who failed the promotional tests at issue.
Minorities who fail the promotional tests are not eligible for
remedial promotions. See Johnson 480 U.S. at 636, 107 S.Ct. at
1454 (if plan fails to take distinctions in qualifications into
account, it would dictate mere blind hiring by numbers).
Furthermore, the remedial promotions are being granted on a
one-time-only basis. The Consent Decree does not call for any
remedial promotions after the five-year phase in period. With
regard to the elimination of future test questions which are
racially biased, questions biased against any race will be
eliminated. This will provide benefits to minority and nonminority
police officers. The elimination of racially biased questions will
occur only over a ten-year period. After that period of time, the
City will no longer face this constraint. Likewise, the extension
of promotional lists from one to two years increases the
possibility of promotion for all police officers.
The Consent Decree does not require the discharge of
nonminority officers and their replacement with new minority
officers. See United Steelworkers of America v. Weber, 443 U.S.
193, 208, 99 S. Ct. 2721, 2729, 61 L. Ed. 2d 480 (1979). Furthermore,
the Consent Decree does not create an absolute bar to the
advancement of nonminority officers. Id. Although nonminority
officers may not be promoted at exactly the same rate and numbers
as before, they will continue to be promoted in substantial excess
of their representation among test takers. Finally, the Consent
31
Decree in this case is a temporary measure. It is not intended to
maintain any specific racial balance, rather it attempts to
alleviate a manifest racial imbalance.
Therefore, the Consent Decree does not unnecessarily trammel
on the interests of nonminorities, nor create an absolute bar to
their advancement.
Since the Consent Decree is justified by a manifest imbalance
that reflected the underrepresentation of minority police officers
in the Sergeant and Lieutenant ranks, and the Consent Decree does
not unnecessarily trammel on the rights of nonminority officers, we
conclude that the district court did not abuse its discretion in
approving the Consent Decree under Title VII.
Validity under the Equal Protection Clause
Having found that the Consent Decree is valid under Title VII,
we now examine its validity under the Equal Protection Clause of
the Fourteenth Amendment.12
"A district court evaluating a proposed Title VII consent
decree must determine whether the decree will have an unreasonable
or unlawful impact on third parties if approved." Black Fire
Fighters Ass'n v. City of Dallas, 19 F.3d 992, 995 (citing Williams
v. City of New Orleans, 729 F.2d 1554, 1559-60 (5th Cir.1984) (en
banc)). Voluntary affirmative-action plans memorialized in a
12
"Of course, where the issue is properly raised, public
employers must justify the adoption and implementation of a
voluntary affirmative action plan under the Equal Protection
Clause." Johnson, 480 U.S. at 620, 107 S.Ct. at 1446 (1987)
(citing Wygant v. Jackson Board of Education, 476 U.S. 267, 106
S. Ct. 1842, 90 L. Ed. 2d 260 (1986)).
32
consent decree are considered equivalent to voluntarily adopted
affirmative-action plans for purposes of equal protection analysis.
Howard v. McLucas, 871 F.2d 1000, 1006 (11th Cir.1989), cert.
denied sub nom., Poss v. Howard, 493 U.S. 1002, 110 S. Ct. 560, 107
L. Ed. 2d 555 (1989); In re Birmingham Reverse Discrimination
Employment Litigation, 833 F.2d 1492, 1501 (11th Cir.1987).
Race-conscious remedial measures receive strict scrutiny under the
Equal Protection Clause. Black Fire Fighters Ass'n, 19 F.3d at 995
(citing City of Richmond v. J.A. Croson Co., 488 U.S. 469, 492-97,
109 S. Ct. 706, 721-23, 102 L. Ed. 2d 854 (1989) (4-Justice
plurality); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274, 106
S. Ct. 1842, 1847, 90 L. Ed. 2d 260 (1986) (4-Justice plurality).
"There are two prongs to this examination. First, any racial
classification "must be justified by a compelling governmental
interest.' Second, the means chosen by the State to effectuate its
purpose must be "narrowly tailored to the achievement of that
goal." Wygant, 476 U.S. at 274, 106 S.Ct. at 1847 (internal
citations omitted).
The Supreme Court has "insisted upon some showing of prior
discrimination by the governmental unit involved before allowing
limited use of racial classifications in order to remedy such
discrimination." Id. (citing Hazlewood School District v. United
States, 433 U.S. 299, 97 S. Ct. 2736, 53 L. Ed. 2d 768 (1977)).
Evidentiary support for the conclusion that remedial action is
warranted becomes crucial when the remedial program is
challenged in court by nonminority employees.... In such a
case, the trial court must make a factual determination that
the employer had a strong basis in evidence for its conclusion
that remedial action was necessary. The ultimate burden
33
remains with the employees to demonstrate the
unconstitutionality of an affirmative-action program. But
unless such a determination is made, an appellate court
reviewing a challenge by nonminority employees to remedial
action cannot determine whether the race-based action is
justified as a remedy for prior discrimination.
Id. at 277-78, 106 S.Ct. at 1849.
In this case the district court specifically found that:
Plaintiffs have proven the disparate impact of the challenged
examinations. Their expert testimony and other evidence
created substantial doubt as to the job-relatedness of the
challenged tests. It is not necessary for the Court to
resolve the question whether the challenged examinations were
job-related. Plaintiffs have shown a sufficiently firm basis
for the relief provided in the proposed Consent Decree.
As stated in the section discussing the validity of the
Consent Decree in Title VII, the plaintiffs provided detailed
statistics on the promotion rates of nonminorities, blacks and
hispanics. The plaintiffs also identified numerous questions on
the examinations which they alleged were extremely difficult to
defend as job-related and consistent with business necessity.
Clearly, the district court had ample evidence from which to
conclude that the plaintiffs had proven disparate impact and that
the City of Houston had justifiably concluded that it would be
difficult to defend the job-relatedness of the questions on the
promotional exams. More importantly, the City of Houston had a
strong basis in evidence to conclude that remedial action was
necessary.
Having found that the Consent Decree's racial classifications
are justified by a compelling governmental interest, namely
remedying prior discrimination, we must now decide whether the
Consent Decree is narrowly tailored to the achievement of that
34
goal.
The Supreme Court has focused on several factors in analyzing
race-conscious remedial measures: the necessity for the relief and
the efficacy of alternative remedies; the flexibility and duration
of the relief, including the availability of waiver provisions;
the relationship of the numerical goals to the relevant labor
market; and the impact of the relief on the rights of third
parties. United States v. Paradise, 480 U.S. 149, 171, 107 S. Ct.
1053, 1066, 94 L. Ed. 2d 203 (1987) (4-Justice plurality).
Necessity for particular relief
In order to evaluate the district court's determination that
the remedial promotions, the elimination of racially biased test
questions on future exams, and the extension of the promotional
lists from one to two years, were necessary, we must examine the
purposes the relief was intended to serve. Id. The Consent Decree
was entered into in this case to remedy past discrimination and to
alleviate the adverse impact of the promotional exams in the
future. The remedial promotions are only directed to those
positions where the discrimination occurred. Moreover, those
promotions are only for those who most likely suffered
discrimination and in direct proportion to the amount of
discrimination they suffered. As the district court pointed out,
Asians and women were not allowed to become part of the plaintiff
class because they could not show that they were discriminated
against in the promotional exams.
The Flexibility and Duration of the Relief
35
To determine whether the Consent Decree meets the narrow
tailoring requirement, consideration of the flexibility and
duration of its proposed relief, must be undertaken.
The Consent Decree proposes remedial promotions which will be
stretched over a five year period, the elimination of questions
biased against any race over a ten year period, and the extension
of promotional lists from one to two years. The relief which the
Consent Decree proposes does not continue indefinitely. Rather, it
is of a temporary nature. The district court found that the
plaintiffs' agreement to have the remedial promotions phased in
over five years was a concession of great magnitude. The remedial
promotions will be phased in over a great period of time solely to
make sure that the disruption within the police department is
minimized. The fact that racially biased questions will be
eliminated from exams for ten years does not mar the Consent
Decree, because questions biased against all races will be
eliminated. Thus, all police officers will benefit. Likewise, the
extension of the promotional lists to two years will help the
promotional opportunities of all police officers.
With regard to flexibility, the Consent Decree does not impose
rigid quotas against the police department. The Consent Decree
requires only the remedial promotion of qualified blacks and
hispanics. Only members of the plaintiff class who have passed the
appropriate promotional exam are eligible for promotion. See
United States v. Paradise, 480 U.S. 149, 177, 107 S. Ct. 1053, 1069,
94 L. Ed. 2d 203 (1987) (fact that requirement to promote blacks on
36
a one for one ratio with whites could be waived if no qualified
black candidates were available, weighed in favor of the
flexibility of an affirmative action plan under equal protection
analysis). Hence, the police department is never required to
promote an unqualified minority in preference of a qualified
nonminority.
More importantly, the Consent Decree is not designed to
maintain any particular racial balance. The police department is
not required to increase the number of minority promotions simply
because it happens to promote more nonminorities in the future.
Numerical Goals
Another method of determining whether the proposed relief is
narrowly tailored, is to examine the relationship of the numerical
goals to the relevant labor market. This is one of the strengths
of the Consent Decree. The number of remedial promotions exactly
matches the number of promotions lost by black and hispanic police
officers. For example, on the September 23, 1982 Sergeant
examination, the statistical analysis showed that hispanics did not
suffer any adverse impact. Consequently, the hispanics were not
given any remedial promotions based on this exam.
As previously stated, the relevant labor market that was used
in this case was the number of minority police officers who took
the promotional examinations. Unlike, other race-conscious plans
which have not passed constitutional muster because they
inappropriately compare the number of minorities in a specific
position, regardless of the level of skill required for that
37
position, with the number of minorities in the general labor force,
the Consent Decree makes its comparison solely with the number of
minorities in the police department. Clearly, the number of
minority police officers who took the exam is the relevant labor
market.13 Once the remedial promotions are made, the promotional
relief ends, regardless of the percentage of blacks and hispanics
in the Sergeant and Lieutenant ranks.
Impact upon Third Parties
The impact upon third parties is a major aspect of this
Consent Decree. A state or local government may constitutionally
require innocent nonminorities to share the burden of remedying the
effects of past identified discrimination. See Fullilove v.
Klutznick, 448 U.S. 448, 484, 100 S. Ct. 2758, 2777, 65 L. Ed. 2d 902
(1980).
It is evidently clear that the impact upon the nonminorities
is negligible. The Consent Decree does not impose an absolute bar
to the promotion of nonminorities. See Paradise, 480 U.S. at 184,
107 S.Ct. at 1073. More importantly, all the remedial promotions
will be to newly created positions by the City of Houston. In no
way are the nonminorities hurt by this Consent Decree. The
nonminorities will be able to compete for exactly the same number
of promotions that would exist in the absence of the Consent
Decree. Their expectations and promotional opportunities are left
fully intact.
13
Again, we do not reach the issue of whether the number of
minorities who took the exam is the only relevant labor market.
38
As the district court stated in its opinion on denial of
intervention for appeal:
The remedial promotions will be to positions that the
city would not have otherwise created, leaving the non-class
officers the same number of promotions that they would have
had in the absence of the decree. The movants could have
claimed, but did not, that they should be allowed to compete
as equals for every position the city creates whether it would
have otherwise under current city policy. The city could not
create an additional set of officer positions and gratuitously
reserve them for blacks, women, or East Europeans. The
positions created by the consent decree and the partial
reservation are predicated on an established history of abuse,
not on a claim to quotas or sensitivity to ethnicity in gross.
As to the HPPU appellants' fears that people who scored lower
on the promotional exams will be promoted before their members with
higher scores:
Their objections reflect confusion, at best. All of the
examinations will be re-scored. The union members must
compete fairly for promotions; they do not have a vested
interest in continuing to receive the benefits of past
discrimination.
The Airport police also cannot claim that the Consent Decree
harms their ability to be considered Class A officers or to be
merged with the Class A officers of the Houston Police Department.
The District Court of Harris County, Texas has specifically
ordered:
IT IS, THEREFORE, ORDERED ADJUDGED AND DECREED that members of
the Houston Police Department Specialized Police Division,
Park Police, of the City of Houston, Texas be denied entry
into the uniformed and Detective Class, (Class "A") of the
Houston Police Department except by application,
qualification, and entry at an entry level position.
Based on the factors outlined by the Supreme Court in
Paradise, we find that the Consent Decree is narrowly tailored.
Therefore, we conclude that the Consent Decree is valid under
39
the Equal Protection Clause of the Fourteenth Amendment.
C.
Finally, we must answer the appellants objections which did
not fall under traditional Title VII or Equal Protection Clause
analysis. The Consent Decree's use of "log-linear" analysis to
eliminate racially biased test items does not violate § 703(l ) of
the Civil Rights Act of 1964, as amended by § 106 of the Civil
Rights Act of 1991. That section was intended to prevent the
manipulation of test scores on valid employment-related tests.
This provision is not applicable to the promotional tests at issue,
because there is substantial doubt as to their job-relatedness.
In response to the Comeaux appellants' objections, the
district court found that it would be unreasonable to delay or
cancel the proposed relief for persons who actively sought to press
their rights, in favor of persons who did not press their rights.
As the appellees point out, the Comeaux appellants have not
proffered any evidence that the failure of prosecution was
exclusively the fault of their counsel.
The district court aptly stated that there can be little
doubt that the federal courts have the power to enter an order
overriding provisions of State or local law, where necessary, to
provide an appropriate remedy in a settlement of a case in which
the plaintiffs are alleging a violation of Federal law. However,
the district court must take care that the provisions of State or
local law are overridden only insofar as it is reasonable and
appropriate to the remedy in question. United States v. City of
40
Chicago, 549 F.2d 415, 437-38 (7th Cir.), cert. denied sub nom.,
Arado v. U.S., 434 U.S. 875, 98 S. Ct. 225, 54 L. Ed. 2d 155 (1977).
We agree with the district court that the Consent Decree impinged
as little as possible upon the provisions of State law.
We conclude that the Consent Decree is valid under Title VII,
the Equal Protection Clause of the Fourteenth Amendment, and all of
the appellants objections.
Therefore, we affirm the district court's approval of the
Consent Decree.
III. CONCLUSION
We find that the district court appropriately denied the
appellants' motions to intervene in the underlying case on the
basis of untimeliness. Accordingly, we DISMISS those appeals. We
REVERSE the district court's denial of the appellants' motions to
intervene for purposes of appeal. Since we reach the appellants'
arguments as to the validity of the Consent Decree, and AFFIRM the
district court's approval of the Consent Decree, the district
court's denial of the motions for purposes of appeal is harmless
error. Furthermore, since we have affirmed the district court in
the entering of the Consent Decree and have held that the district
court's denial of the motions to intervene for purposes of appeal
is harmless error, the court below is AFFIRMED in all respects.14,15
14
The dissent accused the author of "extrapolation" of the
record to get to the finding that the district court denied the
intervention on the ground of untimeliness. All one has to do is
read the briefs of the appellants who tried to intervene and they
all admitted that their intervention was denied on grounds of
untimeliness and they argued as to why their motions to intervene
were not untimely. If the dissent wants to be blind to what the
41
PARKER, Circuit Judge, specially concurring,
While concurring with the majority opinion, I write separately
to address some of the concerns expressed in the dissent.
The dissent professes surprise that the City would buy into
the fundamental premises of the Plaintiffs' case and is deeply
troubled by what the dissent characterizes as a decision of the
City to use a consent decree from the federal court as a crutch to
achieve what it could not accomplish as a matter of its own
independent decision making. Whether we, as judges, favor these
types of controversies or not, whether we might have made different
decisions if we had been a party, whether or not we lament the
political process that on occasion produces consent decrees in
civil rights cases is of no consequence. The fact is that the
parties decided to settle this case.
appellants say on the issue, I have no control over that.
15
I wish to thank my co-panelist Judge Parker for his
concurring opinion and coming to the defense of the opinion which
he says he agrees with. I specially thank him for discussing the
question of jurisdiction which the dissent seems to think we did
not have in this case.
I have never had any question in my mind about the
court having jurisdiction. The appellant police
organizations in this case, while not allowed to intervene,
participated in the "fairness hearing" provided by the 1991
amendments to the Civil Rights Act as objectors to the
Consent Decree. The statute that allowed them to appear as
objectors made them parties and, after the "fairness
hearing", if they were not satisfied with what the court had
done with the Consent Decree they had a perfect right to
appeal. They did not have to ask permission from anyone.
The statute made them parties. Appeal they did and we heard
their objections to the Consent Decree, but affirmed the
court below because the court had done the right thing in
approving the Consent Decree entered into between the class
and the City of Houston.
42
This nineteen year old litigation was settled in a manner that
provided a limited and narrowly tailored remedy that responded to
the wrongs associated with the testing provisions for advancement
within the Houston Police Department. The testing provisions
effectively limited advancement opportunities for blacks and
hispanics. The consent decree provides remedial positions
available to the group of officers adversely affected by the old
testing procedures. The narrowness of the settlement is further
evidenced by the fact that the consent decree takes no jobs away
from non-class members and imposes no duties or responsibilities on
them. The consent decree does exclude non-class members from
competition for 106 remedial promotions with remedial seniority,
but the remedial promotions will not prevent non-class members from
being promoted on regular promotion schedules, and there will be no
demotions or layoffs in order to make remedial promotions possible.
Based on the total aggregate promotions to sergeant and lieutenant
from 1982-91, remedial promotions would only account for about 287
of the total promotions available over the five year period of
remedial promotions, or 147 of the total promotions over the life
of the consent decree. While these remedial promotions do have a
limited effect on promotional opportunities of non-class members,
it is difficult to imagine any remedial scheme that would not have
some effect. The leveling of the playing field for black and
hispanic officers does not unduly trammel the interests of officers
who are not members of the plaintiff class.
Our role is not to delve into the propriety of the decisions
43
that resulted in the settlement but to address the legal issues
presented in this appeal. The issues in this case are
straightforward. They are (1) whether there is some procedural or
jurisdictional impediment to our reaching the merits, and, if not
(2) whether the district court erred in approving the consent
decree.
It is entirely proper for this Court to consider the merits of
the consent decree once it finds that a motion to intervene was
improperly denied. Under the "anomalous rule" governing the appeal
of orders denying intervention in this Circuit, the Court has
provisional jurisdiction to determine whether the district court
erroneously concluded that Appellants were not entitled to
intervene, and if it determines that the district court properly
denied intervention, appellate jurisdiction evaporates and the case
is dismissed; however, if the district court was mistaken, the
appellate court retains jurisdiction and reverses. Stallworth v.
Monsanto Co., 558 F.2d 257, 263 (5th Cir.1977). But our reversal
of the district court's denial of a motion to intervene does not
end our review. If intervention was improperly denied, it is
incumbent upon us to determine whether that denial was harmless
error. See, e.g., Meek v. Metropolitan Dade County, 985 F.2d 1471
(11th Cir.1993) (affirming on the merits after reversing the
district court denial intervention); In re Grand Jury Proceedings
in Matter of Freemen, 708 F.2d 1571, 1575 (11th Cir.1983) (per
curiam) (holding that failure to permit intervention was harmless
where the appellate court "considered [the defendants'] claim ...
44
as if the district court had allowed them to intervene");
Washington State Bldg. & Constr. Trades Council v. Spellman, 684
F.2d 627, 630 (9th Cir.1982) (holding that improper denial of
motion to intervene did not require a new trial where proposed
intervenor was permitted "to participate in the argument on the
appeal from the order granting summary judgment, and its conditions
were duly considered"), cert. denied 461 U.S. 913, 103 S. Ct. 1891,
77 L. Ed. 2d 282 (1983); Halderman v. Pennhurst State School &
Hospital, 612 F.2d 131, 134 (3rd Cir.1979) (applying harmless-error
analysis to denial of motion to intervene for the purpose of
appealing).
Assuming the district court acted within its discretion in
denying as untimely Appellants' initial motions to intervene,1
1
According to the dissent, "this case was still early in its
normal procedural history and that there is no question that the
motions to intervene were timely under "all the circumstances.' "
Dissent at 11-12. The dissent's characterization of the
procedural posture of this case ignores the fact that this
litigation had reached the point where it was obvious to all
concerned that the parties intended to settle the case. While
the motions to intervene might have been filed early in the
procedural history of this case if this case had a more
conventional procedural history and it were actually going to
trial, they were filed very late in the game in the case of this
consent decree.
The Supreme Court addressed a similar situation in
NAACP v. New York, 413 U.S. 345, 366-69, 93 S. Ct. 2591,
2603, 37 L. Ed. 2d 648 (1973). In that case, the State of New
York filed action seeking declaratory judgment that its
literacy tests had not been used for the purpose or with the
effect of denying or abridging the right to vote based on
race or color. In NAACP, the appellants filed their motions
to intervene just four days after the United States filed
its consent to the entry of declaratory and seventeen days
after learning of the pendency of the action. A three judge
panel denied NAACP's motion to intervene and granted summary
judgment to State of New York. Supreme Court upheld denial
45
Appellants still have a sufficient interest to have a right to
appeal the decision of the district court, and it was an abuse of
discretion to deny intervention for purpose of appeal. The
district court's denial of Appellants' motions to intervene for the
purpose of appeal cannot be sustained on the grounds of
untimeliness. First, as noted in the majority opinion, the motions
were filed at the invitation of the district court within the time
frame for such motions set up by the district court. Second,
although the initial motions to intervene were untimely under
Stallworth, the Stallworth analysis does not lead to the same
result with respect to the denial of the motions to intervene for
appeal.
The second Stallworth factor requires that we consider the
prejudice to existing parties if the appellants intervention is
allowed. See Stallworth, 558 F.2d at 265. In the context of a
Rule 24(a) intervention as of right, the only prejudice that we
consider is that prejudice caused by a would-be intervenor's delay
of intervention as untimely despite the early stage of the
litigation.
In the instant case, the underlying litigation had been
going on for almost twenty years. The earliest of the
motions to intervene were filed three months after Chief
Nuchia issued a departmental circular to all police officers
informing them of the potential settlement of the lawsuit
and 37 days after the district court published notice of the
terms of the consent decree. Under all the circumstances of
this case, the district court did not abuse its discretion
in denying Appellants' initial motions to intervene as
untimely.
46
in filing its motion to intervene.2 Since Appellants moved to
intervene for the purpose of appeal only and did not raise any
issues that were not presented to the district court, it does not
appear that the delay in filing their motions could have prejudiced
the existing parties. Cf. McDonald v. E.J. Lavino Company, 430
F.2d 1065 (5th Cir.1970) (holding that, although post-judgment
motions to intervene are normally viewed with a "jaundiced eye,"
the timing of post-judgment motion to intervene for the limited
purpose of staking a claim to the proceeds of suit could not
prejudice existing parties). The existing parties would have been
2
The dissent argues that the second Stallworth factor,
prejudice to the existing parties, has no significant application
in the case of a Rule 24(a) intervention. This flies in the face
of the clear language of Stallworth. Stallworth does not say
that prejudice to the parties is not a factor in a Rule 24(a)
intervention, it says that, in the case of a Rule 24(a)
intervention, prejudice other than that caused by the delay is
not considered.
The dissent paraphrases a statement in Stallworth that
"to take any prejudice that the existing parties may incur
if intervention is allowed into account under the rubric of
timeliness would be to rewrite Rule 24 by creating an
additional prerequisite to intervention as of right."
Stallworth, 558 F.2d at 265. The dissent completely changes
the meaning of this sentence by omitting the emphasis on
"any.' See Dissent at 694. The dissent ignores the
sentence immediately preceding sentence which says that "it
is apparent that prejudice to the existing parties other
than that caused by the would-be intervenor's failure to act
promptly was not a factor meant to be considered where
intervention was sought under section (a)." Stallworth, 558
F.2d at 265.
The dissent's complaint that the majority fails to
distinguish between permissive intervention under Rule 24(b)
and intervention as of right under Rule 24(a) with respect
to the application of this factor completely ignores the
fact that the majority only considered prejudice resulting
from the Appellants' delay in filing their motions to
intervene.
47
in exactly the same situation if Appellants had filed their motions
to intervene for appeal only on the day this case was filed.
Perhaps more importantly, 42 U.S.C. § 2000e-2(n) creates an
"unusual circumstance" under the fourth factor of the Stallworth
analysis. Under 42 U.S.C. § 2000e-2(n), if Appellants were denied
entirely the right to intervene in this action, they would be
precluded from raising any challenge to the consent decree. The
fact that the district court initially denied Appellants motions to
intervene without prejudice to refiling for the purpose of appeal
removed the effect of 42 U.S.C. 2000e-2(n) from the "unusual
circumstances" in factor four of the Stallworth test. Cf. NAACP v.
New York, 413 U.S. 345, 368, 93 S. Ct. 2591, 2605, 37 L. Ed. 2d 648
(1973) (absence of special circumstances warranting intervention
illustrated by the fact that appellants were free to renew their
motion to intervene following the entry of summary judgment).
However, when the district court denied Appellants' motion to
intervene for appeal, it foreclosed the possibility of any further
challenge or appellate review of the consent decree. This altered
the balance of the Stallworth factors to the extent that it was an
abuse of discretion to deny Appellants motions to intervene for the
purpose of appeal.
If, as the dissent contends, intervention for the purpose of
appeal were not permitted by the Rules,3 it would have been error
3
The dissent contends that there is nothing in the Rules of
Civil Procedure which contemplates a motion at the trial court
level to intervene for appeal purposes only, so the denial of
such an intervention cannot authorize us to reach the merits of
Appellants' claims. However, while it is true that intervention
48
for the district court to deny Appellants' initial motions to
intervene because of 42 U.S.C. § 2000e-2(n)'s effect on the fourth
Stallworth factor. We would still reach the merits of Appellants'
claims.
The district courts' denial of Appellants' motions to
intervene for the purpose of appeal had no practical effect on
their ability to present their positions on appeal. Although
Appellants' motions to intervene for the purpose of appeal were
denied, Appellants did present their objections to the consent
decree to this Court. Though not "allowed" to participate in the
appeal by the district court, Appellants did participate in the
argument on appeal and presented their objections to the consent
decree to this Court, and their arguments were duly considered.
Appellants' situation with respect to the proceedings before
the district court was similar. Appellants had their day in court;
they had the amount of process they were due. The dissent's view
of what constitutes one's "day in court" would preclude consent
for the purposes of appeal only does not appear in the text of
Rule 24, it does appear in the case law. See, e.g., United
Airlines, Inc. v. McDonald, 432 U.S. 385, 395-96, 97 S. Ct. 2464,
2470-71, 53 L. Ed. 2d 423 (1977) and the cases cited therein at n.
16.; see also C. Wright, A. Miller & M. Kane, 7C Federal
Practice and Procedure § 1923, at 517 (2d ed. 1986).
The dissent also contends that there is nothing in the
newly enacted amendments to the Civil Rights Act which
evidences an intention to create an appeal from the fairness
hearing. While this too is true as far as it goes, it
ignores the fact that 42 U.S.C. 2000e-2(n)(2)(A) explicitly
provides that those amendments shall not be construed to
alter the standards for intervention under Rule 24. So
2000e-2(n) cannot preclude an intervention procedure that
would otherwise be permissible.
49
decrees and would apparently mandate that these type cases all be
tried. The dissent's position appears to be that if one attains
the status of intervenor, then he can effectively thwart any
consent decree by being entitled to discovery, the presentation of
evidence and witnesses, the right to a decision by a judge or jury,
and the right to appeal. Such a narrow view of fairness hearings
in the context of consent decrees is without discernable authority.
Appellants have no substantial grounds to complain regarding
their participation in the fairness hearing. If Appellants had
been granted intervenor status they would have been entitled to
present evidence and have their objections heard at the hearings on
whether to approve a consent decree, but they would not have the
power to block the decree merely by withholding their consent.
Local Number 93, International Asso. of Firefighters, etc. v.
Cleveland, 478 U.S. 501, 529-30, 106 S. Ct. 3063, 3079, 92 L. Ed. 2d
405 (1986). Although Appellants were not technically permitted to
intervene in the district court action, they were allowed to
introduce evidence and cross-examine witnesses at the fairness
hearing. Appellants were permitted to air their objections to the
reasonableness of the decree and to introduce relevant evidence;
the district court considered these objections and explained why it
was rejecting them. See Cleveland, 478 U.S. at 529, 106 S. Ct.
3079. Neither intervenors nor objectors are entitled to hold
consent decrees hostage and require a full-blown trial in lieu of
a fairness hearing. The issue here is how much process appellants
were due. Even if appellants had been designated as intervenors,
50
they still got the process they were due.
The district court afforded Appellants de facto intervenor
status at the fairness hearing and found their objections
unconvincing. Appellants have not shown that the district court
was wrong or that they would have been any more convincing at the
fairness hearing if they had been designated intervenors rather
than objectors. Appellants suffered no prejudice by the district
court's failure to designate them intervenors apart from denying
them their right of appeal on the merits. We have remedied that
error.
For the reasons set out in the majority opinion and in this
special concurrence, I agree with the majority that we have
jurisdiction to review the merits of Appellants' claims. After
conducting such a review, I agree that any error in denying
Appellants' motions to intervene was harmless. Although I agree
that the district court acted within its discretion in denying
Appellants' initial motions to intervene, I do not believe that
that determination is critical to the outcome of this case; if the
initial motions to intervene were improperly denied, I would reach
the same result.
DeMOSS, Circuit Judge, dissenting:
With some of the trepidation that I suspect was in the mind of
David when he stepped forward to face Goliath, I write to express
my dissent and disagreement with the analysis and conclusions
reached by my distinguished colleagues in the foregoing opinion.
I disagree with the panel majority's extrapolation from the
51
record that the district judge denied the motions for intervention
because of "untimeliness." In my view, if the district judge
articulated any reason for his denial of the motions for
intervention, it was because he felt that the right to object at
the fairness hearing was all he was obligated to afford to the
would-be intervenors.
I dissent and disagree with the majority panel conclusion that
the district judge's denial of the motion for intervention because
of "untimeliness" was not clearly erroneous. In my view, such a
ruling is clearly inconsistent with and not supported by any prior
case law nor by an appropriate construction of the newly adopted
amendment to the Civil Rights Act which speaks to this question.
I dissent and disagree with the panel majority's conclusion
that denial of a motion to intervene "for appeal only" is a final
judgment which vests this court with appellate jurisdiction, when
a prior motion to intervene in the main case has been denied and
sustained on appeal by the court. In my view, there is nothing in
the Federal Rules of Civil Procedure which contemplates a motion at
the trial court level to intervene for appeal purposes only and
there is nothing in the newly enacted amendment to the Civil Rights
Act which evidences an intention to create an appeal from the
fairness hearing.
Some history is necessary to put this case and my dissent in
perspective. Prior to the Supreme Court's decision in Martin v.
Wilks, 490 U.S. 755, 109 S. Ct. 2180, 104 L. Ed. 2d 835 (1989), most
federal courts of appeal had adopted a very restrictive rule
52
precluding all challenges or collateral attacks on a Title VII
consent decree once it had been entered by a court.1 These courts
concluded (i) that the effectiveness of such decrees as a mechanism
to settle claims short of or early in the litigation process would
be substantially undermined, if not eliminated, if the decrees were
subject to perpetual challenge; and (ii) that such decrees have
played a beneficial role in providing relief to thousands of
victims of systemic employment discrimination.2 However, in Wilks,
the Supreme Court, in rejecting the "impermissible collateral
attack doctrine" of the circuit courts, found that (i) one of the
clear principles of Anglo-American jurisprudence is "that one is
not bound by a judgment in personam in a litigation in which he is
not designated as a party or to which he has not been made a party
by service of process;" (ii) that one of the rules deeply rooted
in our historic tradition is "that everyone should have his own day
in court;" and (iii) that the law does not impose on anyone the
burden of voluntary intervention in a suit to which he is a
stranger; and that "[u]nless duly summoned to appear in a legal
proceeding, a person not a privy may rest assured that a judgment
recovered therein will not affect his legal rights." Wilks, 490
U.S. at 762, 109 S.Ct. at 2184-85. As the Supreme Court
recognized, both FRCP 24(a) covering intervention as a matter of
1
See, e.g., Thaggard v. City of Jackson, 687 F.2d 66 (5th
Cir.1982), cert. denied sub nom., Ashley v. City of Jackson, 464
U.S. 900, 104 S. Ct. 255, 78 L. Ed. 2d 241 (1983); Dennison v. City
of Los Angeles Dep't of Water & Power, 658 F.2d 694 (9th
Cir.1981).
2
See Thaggard, 687 F.2d at 69.
53
right, and 24(b) covering permissive intervention, are cast in
"permissive terms."3 Concerns for finality and completeness of
judgments are "better [served] by [the] mandatory joinder
procedures" set forth in Rule 19(a). Id. Finally, "the linchpin
of the "impermissible collateral attack doctrine'—the attribution
of preclusive effect to a failure to intervene—is therefore quite
inconsistent with Rule 19 and Rule 24." Id. at 764, 109 S.Ct. at
2186.
The U.S. Congress, however, concluded that the Supreme Court
had gone too far in Wilks, which in effect required mandatory
joinder of all parties whose interests could potentially be
affected, and the Congress therefore set upon the task of devising
a remedial scheme which would "balance the rights of non-litigants
against the need for finality of judgments and prompt relief for
discrimination." H.R.Rep. No. 40(I), 102d Cong. (1991), reprinted
in, 137 Cong.Rec. 588 (1991), U.S.Code Cong. & Admin.News 1991,
549, 588. That balance is best achieved when all interested
parties are allowed to participate in a single proceeding. As the
Judiciary Committee stated:
[T]he Wilks decision imposes inefficient and inequitable rules
on Title VII litigation. Once an employment dispute has
reached the courts, the parties, all non-litigants with a
stake in its outcome, and the public have a strong interest in
bringing the litigation to an expeditious end. Thus, all
related interests and claims should ordinarily be adjudicated
in one proceeding. (emphasis added). H.R.Rep. No. 40(I),
3
Id. at 763, 109 U.S. at 2185; see, FRCP 24(a)
(intervention as of right) ("Upon timely application anyone shall
be permitted to intervene"); FRCP 24(b) (permissive
intervention) ("Upon timely application anyone may be permitted
to intervene").
54
102d Cong., reprinted in 137 Cong.Rec. 591 (1991), U.S.Code
Cong. & Admin.News 1991, 591.
To accomplish this goal Congress passed Public Law 102-166
Section 108, which is now codified at 42 U.S.C. § 2000e-2(n) and
became effective January 21, 1991.
Subsection n(1) defines the circumstances under which
subsequent challenges to a consent decree will be precluded. It is
similar in content to the pre-Wilks case law, although it imposes
some new requirements (i.e., "actual notice of the proposed
judgment") which were not requirements of that prior law.
Subsection n(2) sets forth the various circumstances in which
subsequent attack on a Title VII consent decree will not be
precluded. Congress expressly stated its intent to include all
relevant parties in Subsection n(2)(A) which provides that nothing
in the Subsection is intended to "alter the standards for
intervention under Rule 24." Although the majority opinion makes
no mention of the effect these amendments, I believe that we should
reconcile and address their effect on this suit.
With this general legal background in mind, I need to add some
comments about this particular lawsuit. It is a "disparate impact
case" and not an "intentional discrimination case." It was filed
August 19, 1992. As the majority opinion indicates, two previously
existing lawsuits, Kelly and Comeaux were consolidated into this
case. Kelly, filed in 1975, and Comeaux, filed in 1976, both
included assertions of disparate impact similar to those in the
current case. The City of Houston filed an answer in this case on
September 30, 1992, and denied generally the allegations of
55
disparate impact in this case, just as it had done in the prior
cases of Kelly and Comeaux. The disparate impact is alleged to
occur "in racially discriminatory promotional examinations for the
ranks of sergeant and lieutenant in the Houston Police Department."
The plaintiffs sought certification by the trial court of two
classes of plaintiffs, African American and Hispanic American
members of the police department who took examinations for sergeant
and lieutenant during the years in question. As I understand the
record, the process for promotion in the Houston Police Department
consists of the following steps:
1. The police officers who have served a defined number of years in
a lower grade are eligible to take the examination for
promotion to a higher grade.
2. The officers who take and pass the promotional examination with
at least the established passing grade are eligible for
promotion.
3. All eligible officers are then placed in rank order on a list of
those eligible for promotion in accordance with the sum of:
a. their actual score on that examination, plus
b. additional points, based on their years of service
with the police department.
4. As vacancies occur (resulting from death, withdrawal,
retirement, resignation, or from expansion of the force by
action of the City Council) these vacancies are filled from
the top of the list of eligibles downward until all vacancies
are filled.
This system produces the following general results:
1. Individual police officers who make the highest scores on the
examination and have the largest number of points for years of
service are the first ones to be promoted; and
2. The number of promotions actually made is a function of the
number of vacancies and not the number of eligibles on the
list.
56
The plaintiffs tendered various statistical studies which showed
that comparing "test takers" and "numbers of promotions" for each
of the categories of whites, blacks, and hispanics, there was a
variation in promotion rates for blacks and hispanics sufficiently
large to rule out chance as the determining factor, and therefore
there was an adverse discriminatory impact. This adverse impact
was attributed by plaintiffs to certain questions (not identified
either by number or by content) on the examinations, which blacks
and hispanics were alleged to have answered incorrectly more
frequently than whites. However, in my judgment, the theory upon
which the plaintiffs plead and supported their claims (as indicated
by paragraphs 24-39 of the findings of fact and conclusions of law
which the plaintiffs prepared and persuaded the trial judge to sign
in this case) suffer two fundamental conceptual breakdowns which
render their claims questionable:
A. First of all, to prove "disparate impact" in the giving and
taking of an examination, one must compare "test takers" and
"test passers." Not only did the plaintiffs not proffer any
statistical testimony based on this comparison, they alibied
out of the task (and got the district court to sign a finding)
on the grounds that the expense of making such a determination
was prohibitive.
B. Secondly, to prove "disparate impact" in the promotion system
used by the city, you must compare the number of individuals
eligible for promotion with the number of individuals actually
promoted in each of the racial categories.
As I explained earlier, to be eligible for promotion, each
police officer, of all racial categories, must achieve the same
minimum score; and it is important to note in this case that there
is no contention that the minimum passing score for blacks and/or
hispanics was any different from that for whites. But in their
57
statistical data, for purposes of comparison with the actual
promotions in each minority category, the plaintiffs utilize a
concept of "availability" (the percentage of blacks and hispanics
of all test takers ) as the starting point for determining a
concept of "expected promotions" (the number of minorities who
would be promoted if you applied the "availability" percentage to
the total number of actual promotions of all categories.) Clearly,
in my judgment, the factor of "available percentage" should have
been determined by determining the percentage of each minority
category of all "test passers" (not test takers ) and the number of
"expected promotions" would then be the percentage attributable to
each minority group which were eligible for promotions as applied
to the total number of promotions actually made.
If the statistical data incorporated in the findings of fact
was the same data presented to the City of Houston in the
settlement negotiations, I am genuinely surprised that the city
would buy into the fundamental premises of the plaintiffs' case.
Obviously, the city had faced similar "disparate impact"
contentions in the Kelly and Comeaux cases for more than ten years,
and had consistently declined to recognize the validity of such
contentions. The net results of the plaintiffs' claims and the
city's capitulation thereto, is a determination of a "short fall"
in promotions to each of the minority groups and a determination to
award "remedial promotions" to each of these minority groups on the
basis of such "short fall." There is, however, no evidence or
findings which can determine any individual as to which these
58
remedial promotions should be granted. In fact, under the consent
decree, these promotions will be awarded to whomever the city
chooses from among the two minority groups. I am deeply troubled
by the decision of the city to use a consent decree from the
federal court as a crutch to achieve that which it could not
accomplish as a matter of its own independent decision making,
i.e., expand the composition of the police department by 96 new
sergeants slots and award those slots on the basis of race.
At about this point, various other groups of police officers
sought to intervene in this case. Some of these groups are
representative of other minorities, i.e., women and Asians. Others
of these groups represent associations and unions of police
officers. Some of these groups sought to intervene as plaintiffs,
alleging that they too had been victims of "disparate impact" in
the promotion process and that they should be entitled to share in
the assignment of the new sergeant and lieutenant slots authorized
by the city council. Other groups sought to intervene, in effect
on the side of the City of Houston, as defendants, asserting that
the examinations given for promotions were legitimate "job related"
examinations, and consistent with the "business necessity" and
professional desire to see that the most qualified individuals were
promoted to positions of leadership. Some of these latter groups
plead and proffered testimony that would show that the statistical
data upon which plaintiffs contended "disparate impact" had
occurred was flawed in concept or factually insupportable. And
these contentions bring us to what I consider to be the "gut" issue
59
in this lawsuit, i.e., "Did the trial court properly dispose of
these motions to intervene?"
The trial court set a hearing to consider the motions to
intervene. This hearing began at 9:30 a.m., continued without a
recess, and concluded after generating only 65 pages of transcribed
testimony. Approximately the first 30 pages of this transcription
set forth a dialogue between the trial judge and plaintiffs'
counsel regarding the nature and content of plaintiffs' asserted
discrimination claims and the remedy provisions of some of the
aspects of the proposed consent decree. About mid-way through the
hearing, counsel for one of the would-be intervenors (the Houston
Police Patrolmen's Union) asked the court to direct its attention
to the issue of intervention, which was the purpose of the hearing,
and twice advised the court regarding the applicability of 42
U.S.C. § 2000e-2(n) as it relates to the subject of intervention.
The trial court, however, ignored such references to subsection
(n). Furthermore, at this hearing, supposedly on the subject of
intervention, the court made no reference to Fed.R.Civ.P. 24(a),
24(b) or to any of the factors relating to the subject of
intervention under those rules. There was no mention of the
Stallworth case, nor the four factors for determining a question of
timeliness thereunder. At the conclusion of the hearing, the court
announced its ruling from the bench as follows:
The motions to intervene are denied without prejudice to them
being reasserted after the objections are heard for purposes
of appealing the decision itself as opposed to any ruling of
the preparation of this issue. [sic]
Three days after the intervention hearing the district judge
60
filed a "order on intervention" which read, in its entirety, as
follows:
1. The motions to intervene in this case as full active parties
representative by women, Asians, the airport police and park
police, and by Houston Police Patrolmen's Union and Park
Police Association are denied.
2. The court will consider motions to intervene for purposes of
appeal. These motions must be filed by April 19, 1993.
The district judge did not file any memorandum opinion
supporting this "order on intervention." Notices of appeal from
the denial of the motions to intervene were timely filed within 30
days after the entry of such order. These notices of appeal were
docketed under Appeal No. 93-2315 of this court.
As we begin the task of assessing the propriety of the trial
court's denial of the motion to intervene, and particularly the
issue of "timeliness" which is at the heart of that determination,
I think it is imperative to have a clear sense as to the procedural
posture of the main case when the motions to intervene were filed.
The intervention motions were essentially filed on or around March
12, 1993. As of that date, the original parties, (i.e., the
plaintiffs and the defendant City of Houston):
A. Had not filed any proposed order determining the class or
classes to be certified pursuant to Rule 23(c) even though
subpart (1) of that rule states that such action would be
taken "as soon as practicable after the commencement of an
action brought as a class action;"
B. Had not entered into any scheduling order under Rule 16
establishing time tables for "joinder of parties, amendment of
pleadings, or completion of discovery" as contemplated by that
rule;
C. Had not engaged in any discovery activities or taken any
deposition pursuant to notices filed under Rule 26;
61
D. Had not conducted any pretrial conferences for the purpose of
establishing a trial date; and
E. Had not, obviously, undertaken any steps to implement any of the
changes or procedures contemplated by the proposed consent
decree.
As this court stated in Stallworth, "timeliness is not limited
to chronological considerations but "is to be determined from all
the circumstances.' " Stallworth v. Monsanto Co., 558 F.2d 257,
263 (1977) (quoting United States v. United States Steel Corp., 548
F.2d at 1235). Viewed in the light of "all the circumstances" I
would say that this case was still early in its normal procedural
history and that there is no question that the motions to intervene
were timely under "all the circumstances." The City of Houston
filed its answer on September 30, 1992, approximately 40 days after
the plaintiffs filed their original petition. In that answer, the
City of Houston, as defendant, denied the essential elements of the
plaintiffs' claim, called on the plaintiffs to prove "disparate
impact," and tendered proof by the city in support of the business
necessity of the promotional examinations. The docket sheet of the
court reflects absolutely no entries of any kind after September
30, 1992, until November 19, 1992, when the parties filed a consent
order on "confidentiality of documents," which order was finally
signed and filed on December 14, 1992. The next significant entry
on the court's docket was January 20, 1993, indicating a memorandum
of a telephone conference which made arrangements for the
preparation of a notice form to be sent out and established
preliminary time tables for the return of objections and a pretrial
conference. Consequently, for a period of almost four months, from
62
the date of the city's answer on September 30, 1992 to the entry of
the conference memorandum on January 20, 1993, there were no docket
entries on the registry of the court which would have given any
third party who might be interested in the status of this case any
real substantive clue as to what was going on. During this time,
of course, the plaintiffs and the City of Houston initiated private
settlement discussions (sometime in late November) and Chief Nuchia
sent out his circular to the police department on December 16.
(See n. 8 of majority opinion, supra.) However, it is evident from
Chief Nuchia's December 16th circular both that the consent decree
was not a done deal and that the details had not been released.
The panel majority attribute great significance to this December
16th circular which I am not inclined to give, primarily because of
the tentative and preliminary nature of the information contained
therein. But, even assuming that it was sufficient notice to start
some "timeliness" clock ticking against the would-be intervenors,
the would-be intervenors took no more time to ultimately file their
motions to intervene than it took the city and plaintiffs to arrive
at some preliminary concept of a consent decree. The panel
majority admits that this time interval by itself "would probably
not merit a finding of untimeliness" but it nonetheless affirms the
trial court by relying principally on the second and third factors
of the Stallworth analysis.
Stallworth's second factor relates to the prejudice which
might result to existing parties. As Stallworth makes absolutely
clear, such determination of prejudice as to existing parties is
63
applicable primarily to motions for intervention under Rule 24(b)
(permissive intervention) and has very limited application to
motions for intervention under Rule 24(a). Stallworth, 558 F.2d at
265. This is because the language about prejudice to existing
parties exists only in the language of Rule 24(b). Therefore, to
take into account any prejudice that the existing parties may incur
if intervention were allowed as part of the rubric of timeliness
would be to rewrite Rule 24(a) by creating an additional
prerequisite to intervention as of right. Id.
This is precisely what the majority does in their opinion.
Amazingly they cite Corley v. Jackson Police Dep't as authority for
that conclusion. In Corley the motion to intervene was filed some
four years after entry of the consent decree and after
implementation of the consent decree, neither of which
circumstances exist in this case. Corley v. Jackson Police Dep't,
755 F.2d 1207 (5th Cir.1985). Furthermore, although the would-be
intervenors in this case sought to intervene under both Rule 24(a)
and Rule 24(b), the majority does not even mention the distinction
clearly established by Stallworth between those two rules on the
subject of prejudice to the existing parties.4
Likewise, when we turn to Stallworth's third and fourth
4
In essence what the majority opinion and the special
concurring opinion would establish as precedent for cases
involving consent decrees is a rule that once the original
parties to the litigation agree on the terms and conditions of a
consent decree and issue the notices required by subsection (n),
any attempt by a third party to intervene is untimely as a matter
of law. In my view, that just cannot be what Congress intended
by the adoption of subsection (n).
64
timeliness factors, I think the trial judge and the panel majority
completely missed the boat. The boat in this case is the
significant impact which subsection (n) brings to the table of
discussion about timeliness. The panel majority dismisses factor
4 by simply concluding that there were no unusual circumstances.
As to factor 3 the panel majority concludes that the would-be
intervenors "had their day in court," stating, "there is no
prejudice to the appellants [the would-be intervenors] because
their participation in the fairness hearing in effect gave them all
the rights they would have had they been made parties to the
lawsuit." The majority reaches this conclusion without even
mentioning the language of subsection (n) which obviously
prejudices the would-be appellant's rights by foreclosing the
possibility of subsequent challenge. Rather than sanction this
result, Congress expressly tried to prevent it by encouraging
inclusion of all interests in one proceeding. For example,
Subsection (n)(2)(A) states that the standards for
intervention under Rule 24 are not "altered" by (n)(1)(B),
regarding notice and an opportunity to present objections;
and
subsection (n)(2)(A) also states that the rights of parties
who have "successfully intervened," pursuant to Rule 24, are
not altered by (n)(1)(B).
In my view these provisions contemplate that intervention could
occur in the proceeding in which the notice and opportunity to
present objections would occur under (n)(1)(B), otherwise there
would have been no need to include the second part of (n)(2)(A).
Finally I note that there is nothing in subsection (n) which
speaks to the rights of parties who have been denied intervention;
65
and there is nothing in subsection (n) which gives persons to whom
notice and opportunity to present objections have been afforded
under paragraph (1)(B) the right to appeal the entry of the
judgment or order described in subparagraph (1)(A).
I submit that it is self evident from the face of the statute
that the provisions for notice and an opportunity to present
objections were not intended to take the place of intervention
rights under Rule 24(a) or (b). If any legislative history is
necessary to support this conclusion, I cite the following:
A person wishing to challenge an employment practice that
implements a court decree will thus retain the right under
Rule 24 to seek to intervene in the proceeding in which the
decree was entered and, the court will determine whether
intervention is appropriate through reference to the
principles that have developed under Rule 24. Similarly, the
preclusion rules do not apply to the rights of parties who
successfully intervene pursuant to Rule 24. H.R.Rep. 40(I),
102d Cong. (1991), reprinted in, 137 Cong.Rec. 597 (1991),
U.S.Cong. & Admin.News 1991, 597.
Furthermore, in the same legislative history, the house
committee report states as follows:
They [the provisions regarding notice and a reasonable
opportunity to be heard] advance the important goal of
judicial finality by permitting all interests affected by a
Title VII consent decree to be considered fully and fairly in
a single proceeding, prior to entry of the decree. These
provisions also embody the principle that third parties are
best left to decide for themselves (after receiving sufficient
notice) whether to enter pending litigation, rather than being
forcibly joined, regardless of their wishes or intentions, as
the Wilks rule requires. Id. at 594 (emphasis added).
Finally, the legislators specified that subsection (n)
provides for the inclusion "of all reasonably ascertainable
interested parties in a single proceeding" and precludes subsequent
challenges "only where preclusion is consistent with due process."
66
Id. at 597.
Given the plain language of the statute and this legislative
history, I submit that subsection (n) affords an individual who has
received actual notice of a consent decree which might adversely
affect his interests, three options. They are:
A. He may do nothing, in which event he will be precluded from
challenging the judgment or order;
B. He may elect to present his objections on or before the date set
by the notice, in which event he has no right to appeal from
whatever disposition the court makes of his objections, and he
will be precluded from challenging the judgment ultimately
entered; or
C. He may move to intervene in the proceeding, in which event one
or the other of the following results may occur:
1. If his motion to intervene is granted, he would be granted all
of the rights of a normal party litigant therein, would not be
precluded from asserting his rights under the Constitution or
Federal Civil Rights Laws, would be afforded the right to
appeal from the final judgment therein, and would be bound by
principles of res judicata to the final judgment established
therein; or
2. If his motion to intervene is denied, he would have the right to
appeal such denial as may be afforded under Rule 24; and he
may elect to participate or not participate in the opportunity
to present objections, but in such latter event he would be
precluded from challenging the judgment or order finally
entered therein unless an appellate court determined that his
motion to intervene was improperly denied by the trial court.
Under this analysis, the requirements of subsection (n) create
special and unusual circumstances under Stallworth's fourth factor
which requires that the timeliness of would-be intervenors' motions
to intervene be assessed in light of the notice required under
subsection (n)(1)(B). Likewise, the assessment under Stallworth's
third factor, the prejudice which the would-be intervenor will
suffer if intervention is denied, should be assessed in light of
67
the preclusive effect which subsection (n) produces as a result of
such denial. Courts have often rationalized denying intervention
on the grounds that the would-be intervenors could later bring
their own separate suit to assert their particular remedies. Under
subsection (n) this will no longer be true. Consequently, in my
view, the proper course for our trial courts to follow when faced
with a motion to intervene in a Title VII proceeding, is to permit
such intervention when the motion for intervention is filed prior
to the entry of the final decree, and prior to the date set for
response in the notices sent out under Paragraph (1)(B) of
subsection (n). Such course of action is fully consistent with the
statements of policy reflected by the legislative history quoted
above and fully reconciles the two great policy considerations
which motivated Congress to pass subsection (n). The majority's
position, finding intervention untimely even when filed before
entry of the consent decree and before the date for responses, is
inconsistent with our well-established precedent and effectively
forecloses meaningful participation by non-minority and other
interested groups in Title VII litigation.5 Such a bold departure
5
Our decisions finding intervention untimely have all
involved motions filed well after entry of the consent decree.
See Corley v. Jackson Police Dep't, 755 F.2d 1207 (5th Cir.1985)
(intervention untimely when filed 50 months after consent decree
entered); Smith v. Missouri Pac. R. Co., 615 F.2d 683 (5th
Cir.1980) (intervention untimely when filed 2 years after entry
of judgment); Hefner v. New Orleans Public Serv., Inc., 605 F.2d
893 (5th Cir.1979) (intervention untimely when filed two years
after entry of judgment), cert. denied, 445 U.S. 955, 100 S. Ct.
1639, 64 L. Ed. 2d 231 (1980); United States v. Allegheny-Ludlum
Indus., Inc., 553 F.2d 451 (5th Cir.1977) (intervention untimely
when filed seven and one-half months after judgment), cert.
denied, 435 U.S. 914, 98 S. Ct. 1467, 55 L. Ed. 2d 505 (1978). Our
68
from precedent should at least be acknowledged and discussed by the
majority.
Having disposed of the motions to intervene, the trial court
moved on to conduct what has been euphemistically referred to as
the "fairness hearing." This hearing occurred two days after the
hearing on the motions to intervene, began at 9:00 a.m., had a
lunch break, and was concluded at about 5:00 p.m. A large part of
this hearing consisted of dialogue between counsel for the
plaintiffs, the city, and the "objectors" and between those counsel
and the court. In essence, the "hearing" consisted of a verbal
rehash of the terms and conditions of the consent decree and the
content of written objections which had been filed by many
individuals and by the would-be intervenors. Some live testimony
was presented by the police chief and by the statistical expert for
plaintiffs. The court declined, however, to accept any live
testimony tendered by an expert of HPPU, one of the would-be
intervenors-objectors. The document labeled "Findings of Fact and
Conclusions of Law" which contains 102 pages, and which the trial
court signed and filed the next day, was pre-drafted apparently by
the plaintiffs and was present, and frequently referred to, during
the fairness hearing. In my view, this "fairness hearing" was
nothing more than a drill to permit the district court to rubber
stamp its approval of the pre-drafted findings of fact and
landmark decision in Stallworth found intervention timely when
filed one month after entry of judgment. See Stallworth, 558
F.2d at 266. (The mere fact judgment has already been entered
should not require that intervention be denied as untimely.)
69
conclusions of law, and ultimately the consent decree. To label
this hearing, as the majority does in their discussion of
Stallworth's third factor, as in effect affording the would-be
intervenors "their day in court" is to render that historical
figure of speech meaningless. In my view, to "have your day in
court" means that one is a party to the litigation, having all of
the rights of discovery, rights of presentation of evidence and
witnesses, the right to have disputed issues determined by an
impartial trier of fact in accordance with the rules of evidence,
and ultimately the right to appeal. I do not mean to say that the
trial judge erred in failing to afford such a full blown
evidentiary hearing to the objectors. Clearly, Paragraph (1)(B) of
subsection (n) speaks only of "a reasonable opportunity to present
objections" as the second requirement after sufficient notice.
This statutory provision does not even contain the word "hearing"
much less the words "evidentiary hearing" in defining the manner in
which objections are to be presented. But, what I do mean to say,
is that the status of "objector" under Paragraph (1)(B) is a far
cry from the status of "a party intervenor" and "reasonable
opportunity to present objections" is not the same as "a day in
court." For the majority to support its conclusion that the
would-be intervenors suffered no prejudice because they had their
day in court is nothing but an empty rationalization.
MOTION TO INTERVENE FOR APPEAL PURPOSES ONLY
During the course of the so-called intervention hearing, the
idea that such would-be intervenors might be permitted to intervene
70
for appeal purposes only was floated by the plaintiffs and the City
of Houston. The district court picked up on this idea and included
it in the second paragraph of its brief order denying intervention
in the underlying action. On April 19, 1993, the date specified by
the district judge's invitation, the would-be intervenors filed
such motions to intervene for appeal purposes only. On May 20,
1993, the district court entered an order denying the motions to
intervene for purposes of appeal, and filed therewith an "Opinion
on Denial of Intervention for Appeal" ("Opinion"). Since this
document is the best evidence of what the district judge really had
in his mind in ruling on the various motions, I quote two portions
thereof which I think are extremely relevant:
1. These various groups argue that the consent decree does not help
them, and worse, it hurts them. They assert that the remedy
here injured them. Their remedy is not to intervene, but to
object to the decree. They did, and they were not persuasive.
(emphasis added) Opinion, at 3.
2. The non-parties assert that they should be allowed to intervene
so that they can address on appeal the fact that their
objections to the consent decree were overruled, and that they
were not allowed to intervene in the case as parties. Their
motions are made in a vacuum; they lack substance, support,
and persuasion. Id. at 5.
While the first of the quoted paragraphs above was written
some two months after the district court originally ruled on the
primary motions to intervene in the main case, I think the
underlined portion of that paragraph clearly indicates that the
district court operated under a mistake of law as to the impact of
subsection (n). For the reasons which I have set forth earlier, I
think the explicit language of the statute and the supporting
legislative history makes clear that rights of intervention under
71
Rule 24(a) or (b) were not changed by the passage of subsection
(n). Again, it is important to note that nowhere in its Opinion
did the district court mention Rule 24(a) or (b), or subsection
(n), or the Stallworth case, or any of the four factors defined in
Stallworth as considerations to determine timeliness. Given this
language used in the Opinion, I think the majority's conclusion
that the trial judge based his decision on "timeliness" is
insupportable.
The second quoted paragraph above gives the district court's
explanation for denying the motions to intervene for purposes of
appeal only. I think the district court was correct in denying
such motions, but for reasons entirely different from those
mentioned by the district court. First of all, I find no authority
in any federal rule of civil procedure for the filing of a motion
to intervene for purposes of appeal only. Nothing in Rule 24
refers to such a motion and no one has cited any statute which
creates such right. While I recognize that Stallworth
characterizes our circuit's rule regarding appeal of denial of a
motion to intervene as "anomalous," the majority's tacit approval
of the filing of a motion to intervene for appeal only, and
consideration on appeal of the denial of such a motion, carries our
circuit practice beyond the area of anomaly into the area of shear
nonsense. A would-be intervenor certainly has a right to appeal
from the denial of his motion to intervene under our practice, but
if the trial court was right in denying such motion, then the
would-be intervenor is finished, through, out-of-the case and in my
72
judgment should not be permitted to file further motions or notices
in that case. On the other hand, if the trial court was wrong in
denying the motion for intervention, then the relief at the
appellate level is to vacate the judgment entered into without the
would-be intervenor's participation, and remand the case with
instructions to permit the intervention and proceed with a retrial.
In either such event, the concept of a motion to intervene for
appeal purposes only is surplusage.
Secondly, it is perfectly clear that subsection (n) does not
contemplate any appellate review process after the "reasonable
opportunity to present objections." That would clearly be the
situation if no one ever attempted to intervene in the main
proceeding and simply decided to file a motion to intervene for
appeal purposes only after the trial judge has conducted the
"fairness hearing" and was unpersuaded by their objections. I do
not think the court should infer an appellate process where
Congress has not prescribed one, especially not as to the merits of
the case. In this case, the would-be intervenors whose original
motions to intervene were denied, should not be able to intervene
for appeal purposes only in order to appeal the court's rejections
of their objections. Since they have already given their notice of
appeal as to the denial of their original motions to intervene,
there really is nothing further which could be considered by a
motion to intervene for appeal purposes only.
Consequently, I would conclude that this court does not have
appellate jurisdiction to consider the denial of a motion to
73
intervene for appeal purposes only in a Title VII action. I think
the panel majority errs in undertaking that task. I note with
interest however, that the panel majority proceeds to find (i) that
the trial court erred in denying such motions, (ii) that the
would-be intervenors had an interest sufficient to support
intervention as of right and were so situated that disposition of
the action may, as a practical matter, impair or impede their
ability to protect that interest, and (iii) that the existing
parties, i.e., the plaintiffs and the City of Houston, did not
adequately represent the interest of the would-be intervenors. In
so doing, the panel majority makes clear that, but for their
conclusion that the original motions to intervene were "untimely,"
the would-be intervenors would have satisfied all of the other
requirements of Rule 24(a) to justify intervention. Even assuming
the trial court had denied intervention on the basis of
untimeliness, and I do not believe it did, finding a motion to
intervene untimely when filed both before the fairness hearing and
before entry of judgment sets bold and, in my opinion, unwise new
precedent. I am at a loss to understand the majority's reasoning.
Having affirmed the district court's denial of the original
motion to intervene on the basis of "untimeliness," and having
dismissed the appeals relating thereto, the majority now turns
around and takes appellate consideration of the trial court's
denial of motions to intervene for appeal purposes only, filed by
individuals and groups who were no longer in the case, and reverses
the denial of such motions on the grounds that these same persons
74
and groups met all of the requirements of Rule 24(a) to intervene.
MERITS OF CONSENT DECREE
As pointed out by the majority opinion, neither the City of
Houston nor the plaintiffs filed a notice of appeal of the final
judgment of the district court approving and adopting the consent
decree. This is not surprising since those parties had agreed to
the entry of the consent decree in the first place. The only
persons and groups who filed notices of appeal as to the entry of
the final judgment were the would-be intervenors who filed those
notices as part of the notices of appeal relating to the denial of
their motions to intervene. These notices were filed in the
interval between the filing of their motions to intervene for
purposes of appeal and the order of the trial court denying such
motions to intervene for purposes of appeal. Consequently at the
time the notices of appeal relating to the merits of the consent
decree were filed, the would-be intervenors were clearly not
parties to the proceeding, because their motions to intervene
originally had been denied and their motions to intervene for
purposes of appeal only had not been acted upon. So, in my
judgment, we face another enigma quite similar to the one discussed
in the preceding section, and it boils down to this question: "Can
our court take appellate jurisdiction of an appeal originating from
a notice of appeal filed by parties and groups who were not at that
time either original parties or intervenors and whose motions to
intervene for appeal purposes only had been filed but not acted
upon by the district court?" My answer to the question would be,
75
"surely not." Non-parties whose motions to intervene in the main
case have been denied have standing to appeal only the denial of
such intervention. As to other and further proceedings in that
case, they remain non-parties until the appellate court reverses
the denial of their motion to intervene, which the panel majority
has concluded not to do in this case. Had the district court
decided to permit their intervention for appeal purposes only, some
argument might be made that permission should relate back to the
notices of appeal which they previously filed regarding the merits
of the consent decree. But, in this case, the district court
denied their motions to intervene for appeal purposes only, so no
relation back concept could be at work here. In addition to the
problem of standing for filing notices of appeal, we face once
again the problem that subsection (n) clearly does not make
provision for any appeals from whatever the trial court decides to
do in light of the filing of objections. Surely, when Congress has
not made provision for an appeal, the courts should not "legislate"
that there be one.
For the foregoing reasons, I think the panel majority makes a
mistake in addressing the merits of the consent decree. I realize,
of course, that the would-be intervenors ("appellants") spend a
considerable portion of their briefs arguing the merits and the
plaintiffs and the City of Houston, to a lesser extent, respond.
However, this court has frequently stated that we are a court of
limited appellate jurisdiction, that we can and should address sua
sponte whether our jurisdiction exists, and that neither the
76
parties' expressed nor implied consent can vest our court with
jurisdiction when it does not, in fact, exist. E.g., U.S. v.
Garner, 749 F.2d 281 (5th Cir.1985). I realize also that in an
earlier portion of this dissent, I made derogatory comments about
the theory of the plaintiffs' claims of "disparate impact." I did
so not to try to evaluate the merits of those claims, but to
indicate, that in my judgment the claims asserted by the would-be
intervenors were sufficient to create a good faith controversy, and
for the good of all concerned, employers and opposing groups or
factions of employees, the place and time to resolve those
controversies is in one single proceeding. When the employer is a
public entity (as in this case) and when the relief proposed is
remedial promotions and adjustments in seniority based directly on
race, I think the role of a federal judge presented with a proposed
consent decree takes on extremely critical importance. When the
notices sent out under subsection (n) generate motions to intervene
by individuals and groups of the quantity and quality as occurred
in this case, i.e., the Houston Police Patrolmen's Union, the
Houston Police Officers Association, the Houston Airport Police
Officers Association, the Park Police Officers Association, the
Asian American Police Officers Association, and the Female Police
Officers Association, then the court should be extremely careful in
rushing to judgment on the basis of the proposed consent decree
approved by the initial parties. Our system of justice is premised
on the idea that truth can best be arrived at by subjecting the
contentions of each side to the critical and adversarial
77
examination by the other side. And whether, as in this case,
"disparate impact" has in fact occurred, and whether, as in this
case, remedies for such "disparate impact" have been carefully and
narrowly tailored to cure only the "disparate impact" can best be
determined by submitting the controversies to impartial jury and
judge. When all parties potentially affected and involved agree on
the essential findings and conclusions, a consent decree is
certainly appropriate.6 But when real and substantial segments of
the employee population assert that "disparate impact" did not
occur and that the remedial changes go beyond the scope of the
alleged "disparate impact" and affect their individual interests,
then they should be allowed to intervene and present those
contentions ultimately, if necessary, to the jury and judge.
Obviously, that may produce more work for the court and some delay
at arriving at a final determination, but the provisions of the
Federal Rules of Civil Procedure are clearly adequate to provide
for the prompt elimination of frivolous and insupportable
contentions, the severance of the process into separate liability
and remedy determinations, and the entry of either summary or
post-trial judgments which will truly be binding upon all of the
6
Such a case was relied on, inappropriately I believe, by
the trial judge. At the hearings and in the Findings of Fact and
Conclusions of Law, the trial judge and the original parties
relied upon evidence generated in the case involving Houston
Firefighters. Houston Chapter of the Int'l Ass'n of Black
Professional Firefighters v. City of Houston, 56 Fair
Empl.Prac.Cas. (BNA) 445, 1991 WL 340296 (1991). In that case,
however, the non-minority interests were certified as a class,
participated in the negotiations and signed the proposed consent
decree.
78
parties and interests and thoroughly satisfy the public interest in
the finality of such determinations.
In conclusion, I do not agree that the trial court denied the
motions to intervene on the basis of untimeliness. Instead, the
opaque statements quoted by the majority and the district court's
opinion denying intervention for purposes of appeal suggest that
the trial judge believed that subsection (n) of the 1991 amendments
to the Civil Rights Act established a new threshold for due
process: substituting notice and an opportunity to object for a
meaningful opportunity to be heard at a meaningful time. However,
even if I agreed that this was the court's rationale, the decision
today flies in the face of established precedent as well as the
stated policy of subsection (n) of the 1991 amendments to the Civil
Rights Act of 1991. As far as I know, we have never found
intervention filed before entry of the consent decree to be
untimely. I believe the would-be intervenors in this case acted as
quickly as possible by moving approximately six weeks after
statutorily anticipated notice, before the expiration of the time
allotted for objections and before the fairness hearing.
I do not agree that they had their "day in court" either in
the trial court below or here on appeal. Our decision today
appears to condone judicial approval of privately negotiated
consent decrees without consideration of potentially affected
interests. Considering the preclusive effect of subsection (n) of
the 1991 amendments to the Civil Rights Act, I do not think such an
approach affords due process.
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Finally, neither the denial of the so-called "motions to
intervene for purposes of appeal only," for which I can find no
basis in the Federal Rules of Civil Procedure, nor the substantive
merits of the consent decree, which were appealed only by persons
who were not party to this suit, were properly before this court.
For all of the foregoing reasons, I would REVERSE the decision
of the trial court denying the original motions for intervention,
VACATE the final judgment approving the consent decree, and REMAND
this case to the trial court for further proceedings. I would also
DISMISS the appeal of the denial of the motion to intervene for
appeal purposes only, and DISMISS the appeal as to the merits of
the final judgment entered by the trial court, on the grounds of
lack of appellate jurisdiction in both cases.
* * * * * *
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