In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2845
A RTHUR L. L EWIS, JR., et al.,
Plaintiffs-Appellees,
v.
C ITY OF C HICAGO, ILLINOIS,
Defendant-Appellee.
A PPEAL OF:
T ERRENCE C. B UTLER, E UGENE P AYLOR,
A NTHONY R OSS, and G ERARD D. M INNIFIELD
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 5596—Joan B. Gottschall, Judge.
A RGUED N OVEMBER 29, 2012—D ECIDED D ECEMBER 17, 2012
Before E ASTERBROOK, Chief Judge, and P OSNER and
M ANION, Circuit Judges.
E ASTERBROOK, Chief Judge. After this suit had been
pending for 14 years—indeed, after final judgment had
been entered—four persons sought to intervene in order
2 No. 12-2845
to upset the judgment and improve their own fortunes
at the expense of other members of the class. The district
court deemed the proposed intervention untimely and
denied the motion. Appellate review is deferential, see
Sokaogon Chippewa Community v. Babbitt,
214 F.3d 941, 945
(7th Cir. 2000), and we conclude that the district judge
did not abuse her discretion in denying the would-be
intervenors’ motion. (To simplify exposition, we call
them “the intervenors” and omit qualifications such
as “would-be” or “aspiring.”)
The litigation arises from a civil-service examination
administered in July 1995 to persons who wanted to join
the Chicago Fire Department. The City concluded that
scores of 89 to 100 signify high qualification and hired
initially from that group. Only in 2002 did it begin to
hire (at random) from the “qualified” group who had
scored 65 to 88. Hiring from that pool continued until
2006, when the City administered a new examination.
Plaintiffs in this suit contend that drawing a line at 89
had an unjustified disparate effect on black applicants
and thus violated Title VII of the Civil Rights Act of 1964.
A procedural dispute reached this court in 2000. In re
Lewis,
212 F.3d 980 (7th Cir. 2000). After holding a
bench trial in 2006, the district court concluded that
the City had not proved the justification it advanced for
its selection method. A final decision in 2007 provided
relief to applicants in the “qualified” pool who had not
been hired by the Fire Department. Lewis v. Chicago,
2007 U.S. Dist. L EXIS 24378 (N.D. Ill. Mar. 20, 2007).
We reversed after concluding that the charge of discrim-
No. 12-2845 3
ination had been filed with the EEOC after the statute
of limitations expired, because plaintiffs’ claim accrued
when applicants in the qualified pool were told that they
were unlikely to be hired. Lewis v. Chicago,
528 F.3d 488 (7th
Cir. 2008). The Supreme Court disagreed, holding that
a new claim accrued with each use of the list to hire
another group of firefighters. Lewis v. Chicago,
130 S. Ct.
2191 (2010). On remand, we held that the charge of dis-
crimination was untimely with respect to the first group
of hires but timely with respect to later hires. Lewis v.
Chicago,
643 F.3d 201 (7th Cir. 2011). Implementing that
decision, the district court revised the judgment to
reduce from 132 to 111 the number of class members
who must be hired; under this judgment other class
members who have not been hired receive damages.
Neither the plaintiffs nor the City of Chicago appealed
that decision.
The four intervenors have been working as firefighters
since 2005. Each was selected at random from the “quali-
fied” pool, passed the physical and completed the
required training course, and entered on duty. Each was
aware of the litigation no later than 2005. Some of the
intervenors attended the oral argument at the Supreme
Court in 2010 and the oral argument in this court on
remand in 2011. Each contends that he thought, until
recently, that he would receive extra seniority, pension
credits, or back pay in this litigation. Each contends that
he is entitled to intervene, even after judgment, because
not until later did he learn that class counsel had
decided not to seek any relief on behalf of persons
hired from the “qualified” pool.
4 No. 12-2845
The district judge thought the motion to intervene
untimely because the intervenors knew (or readily could
have learned) in 2007 that they were no longer members
of the class. As the district judge saw things, the process
used in spring 2007 to compile a database of persons
eligible for relief—a database that excluded anyone who
had been hired by the Fire Department—amounted to
a change in the class definition. Only persons never
hired by the Fire Department received any benefit from
the judgment entered in April 2007. An attempt to inter-
vene five years later is much too late, the judge thought.
See, e.g., People Who Care v. Board of Education,
68 F.3d
172, 175 (7th Cir. 1995) (people must intervene promptly
after they learn, or readily could have learned, that devel-
opments in the litigation jeopardize their interests).
If the class definition had been modified in 2007, then
the right question to ask would concern the statute of
limitations, not the discretionary standard for timely
intervention. Once a suit is filed as a class action, the
statute of limitations is tolled until the district judge
declines to certify a class, or certifies a class that excludes
particular persons. A decision against certification, or a
limited certification, ends the tolling and the time
resumes running. See Crown, Cork & Seal Co. v. Parker,
462 U.S. 345 (1983); American Pipe & Construction Co. v.
Utah,
414 U.S. 538 (1974). Resumption is automatic;
neither American Pipe nor Crown, Cork & Seal suggested
that it depends on anyone’s knowledge that class certif-
ication had been denied or the scope of a class limited.
The Supreme Court held that in this case a new claim
accrues with each use of a device that creates a disparate
No. 12-2845 5
impact. The last such use was in 2001; after that, all hires
from the 1995 list were made in a fashion that the
class concedes is proper. So if the tolling effect of the
original class action ended in 2007, with respect to any-
one excluded from the class because already hired as a
firefighter, then the intervenors (and anyone similarly
situated) had at most 300 days to complain to the EEOC.
Yet none of the intervenors has ever filed a charge of
discrimination with the EEOC, and none acted in any
other fashion within 300 days of the judgment entered
in April 2007. Once the statute of limitations expired on
the intervenors’ claims, there would be no point to inter-
vention, because none of them would have a viable
claim for relief.
Yet although the district judge stated that the class
had been modified in 2007, we cannot find an order
modifying the class definition. More than that, we
cannot find an order defining the class in the first
place. Lewis and the other representative plaintiffs
moved in 1999 for the certification of a class. The district
court entered a one-sentence order granting that mo-
tion. Despite the explicit instructions of Fed. R. Civ.
P. 23(c)(1)(B), the order did not define the class.
Rule 23(c)(1)(B) reads: “An order that certifies a class
action must define the class and the class claims, issues,
or defenses, and must appoint class counsel under
Rule 23(g).” The district judge did not do any of these
things—not in 1999, not ever. (The language we have
quoted is from the current version of Rule 23(c)(1)(B),
which was promulgated in 2003. The version of Rule 23
in force in 1999 required the court to define the class,
though not to appoint class counsel.)
6 No. 12-2845
The plaintiffs contend that the district court must
have certified this class in 1999:
[A]ll African American firefighter applicants
who took and passed the 1995 written firefighter
examination who received a score of 65 or greater
but less than 89, but who, as a result of their test
scores, have been and continue to be denied the
opportunity to take the physical performance
test and to be hired as firefighters.
If that is the class, then the four intervenors were
members in 1999 but dropped out in 2005 when they
were hired as firefighters. The language we have quoted
appears in the 1999 motion (though not in any order of
the district court). But plaintiffs’ 1999 motion contains
other definitions, including: “all African American fire-
fighter applicants who received scores of 65 or greater
but less than 89 on the 1995 written exam”. Class counsel
put a variant of the latter definition on their web site
and have used it frequently—including, according to the
intervenors, when assuring each of them that he con-
tinued to be a member of the class after being hired in 2005.
Class counsel have used other definitions over the
years, and the district judge likewise has used varying
definitions in opinions issued in 2005, 2007, 2011,
and 2012. The intervenors have cataloged 13 different
potential definitions of the class—all used some-
where by the judge or class counsel, but none appearing
in a class-certification order. The class has never been
formally defined, and in the absence of an original defini-
tion it is not possible to pin down the date of modifica-
tion (if there was one). The only safe way to proceed is
No. 12-2845 7
to assume that the four intervenors have been members
of the class since 1999 and remain members today.
They therefore do not encounter any problem under
the statute of limitations, though a question about the
timeliness of the motion for leave to intervene remains.
The intervenors acknowledge knowing about the litiga-
tion no later than 2005. In 2007 the district court devised
a remedy that gave them (and other persons hired
between 2002 and 2006) no relief. The intervenors say
that no one told them about this—but then no one had
to. The district court invoked Rule 23(b)(2), which
covers situations in which “the party opposing the
class has acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief
or corresponding declaratory relief is appropriate re-
specting the class as a whole”. Rule 23(b)(2) does not
require notice, because no one can opt out of a (b)(2) class.
Nor does Rule 23 require notice when a class action
is resolved on the merits. Although members of a (b)(3)
class must be notified of a settlement, see Rule 23(e)(4),
no one is entitled to notice of the final decision in a
suit fought to the finish, as this one was.
Members of a (b)(2) class can monitor the litigation, and
these intervenors did just that when attending oral argu-
ments in the Supreme Court and this court. They could
have asked to see the judgments entered in 2007 and
2011 but did not. During the argument held in this court
in 2011, counsel representing the class stated that persons
who had been hired between 2002 and 2006 would not
receive any relief; that did not prompt the intervenors
to act, and the district judge was entitled to conclude
8 No. 12-2845
that persons who had let all of these opportunities
slide by were not entitled to intervene in 2012.
The intervenors blame their inaction on class counsel.
They say that they were told, by counsel’s web site as
well as direct communications, that they remained mem-
bers of the class and could look forward to a benefit.
(Class counsel respond that three of the four nonetheless
knew, well before June 2012, when they sought to inter-
vene, that they would not share in the remedy.) Lest
our conclusion that the request for intervention came
too late set the stage for malpractice litigation against
class counsel, we add that intervention would have
been pointless because class members hired between
2002 and 2006 would not have received relief no matter
what they, and the class counsel, did or said.
The goal of this litigation was to assist applicants
injured by the disparate effect of the “well qualified” cutoff
at 89. In 2001, when the pool of persons who scored
between 89 and 100 was exhausted, the violation of
Title VII ceased, and the City’s hiring process complied
with Title VII. Although some persons hired from the
“qualified” pool between 2002 and 2006 might have
been hired earlier had the City made offers, beginning
in 1996, to the entire pool of persons who scored 65
or above, the random nature of the process makes it
impossible to know who would have gained as a re-
sult—and also makes it sensible for the district judge
to conclude that class members who took a bird in hand
surrendered their opportunity to share in a recovery that,
as of 2005, remained uncertain. The City vigorously
contested liability. Trial did not occur until 2006, the
No. 12-2845 9
initial judgment was entered in 2007, and in 2008 we
held that the class loses outright. It took a decision of
the Supreme Court in 2010 to establish an entitlement
to relief.
Applicants hired between 2002 and 2006 suffered at
most a delay in employment, while those never hired
suffered a greater injury. The intervenors have been on
the payroll since 2005, receiving salary and accruing
seniority; the other class members lack those benefits.
Our decision in 2011 led the district judge to find that
111 persons who had not yet been hired are entitled
to jobs that would commence in 2011 or 2012, with senior-
ity back to 1999 (the midpoint of the time when the
City was in violation of Title VII). Giving extra seniority
to persons who had been receiving the benefits of em-
ployment since 2005 would make these 111 (and all
other firefighters hired since 1999) worse off. Similarly,
allocating back pay to the persons hired between 2002
and 2006 would injure other members of the class,
because the pot available for distribution is limited.
The court calculated how many African American appli-
cants would have been hired, and when, had selections
been made at random from the outset, and compared that
with the number actually hired. This calculation deter-
mined how many extra offers of employment the Fire
Department must make and how much back pay goes
to the class as a whole. A judge properly could conclude
that the remedy should be concentrated on the never-
hired applicants rather than be shared with those who
had been enjoying salary and accruing seniority, and
who might not have been injured at all. To repeat: given
random selection, the intervenors might have been hired
10 No. 12-2845
in 2005 or later, or not hired at all (the fate of more than
6,000 other class members), had the City chosen from
the pool of those who scored 65 and over beginning in
1996 rather than 2001, and thus never violated Title VII.
A FFIRMED
12-27-12
