Appendix — Western Electric Co. v. Hill

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APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 80-1279

OLLIE T. Hi, JOHN W. WARD, CHARLES R. MERRI-

WEATHER, In., EDWARD H. MINATEE, MINNIE MARBLE,

Mary E. Carter, Individually and on behalf of all

other persons similarly situated,

Argued Feb. 3, 1981

Decided March 1, 1982

Before WIDENER and PHILLIPS, Circuit Judges,

and RICHARD L. WILLIAMS, United States District

Judge, sitting by designation.

JAMES DICKSON PHILLIPS, Circuit Judge:

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8a

the court appended a footnote to the decree in which it

stated that It] he Arlington facility for purposes of this

decree encompasses . . . any functional successor” to

either of the operations based at that facility. Jt. App.

at 276.

On appeal, we affirmed in part, reversed in part and

remanded. Hill v. Western Electric Co., 596 F.2d 99 (4th

Cir. 1979). With respect to the inclusion of hiring dis-

criminatees in the certified class, we stated that, while

our decision in Barnett arguably might have authorized

the named plaintiffs, who were employed, to represent

persons denied employment, that possibility was now

foreclosed by the Supreme Court’s intervening holding in

East Texas Motor Freight System, Inc. v. Rodriguez, 431

U.S. 395, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977), that a

class representative must “possess the same interest and

suffer the same injury” as the class members he or she

seeks to represent. Therefore, we vacated the district

court’s finding of discrimination in hiring for lack of an

adequate representative for those members of the certi-

fied class who allegedly were discriminatorily denied em-

ployment. Hill v. Western Electric Co., 596 F.2d at 101-

02. Following the denial of plaintiffs’ petition for certi-

orari, our mandate was reinstated, and the case was re-

manded to the district court.

Plaintiffs’ counsel then filed motions for intervention

or to amend the complaint to add three new plaintiffs—

Bailey, Johnson and Furr—to the action. Intervention

was sought on behalf of the individuals and on behalf of

the class of rejected applicants for employment at West-

ern’s Arlington facility. With respect to the qualifications

of the three proposed intervenors, plaintiffs alleged that

Bailey was a black female who had been denied employ-

ment at the Arlington facility in 1972 and 1973 as the

result of discriminatory hiring practices, which have con-

tinued, without interruption, to the present. She filed a

4a

charge with the EEOC on November 6, 1979 and was

issued a right-to-sue letter on December 6, 1979.

Johnson, a black female, and Furr, a black male, al-

leged that they had unsuccessfully applied for employment

with Western as “installers” in August 1979. Although

they applied at Western’s Landover, Maryland facility,

they contended that this facility was a successor to one of

the operations that had been housed at Western’s Arling-

ton facility. They also alleged that they had been denied

found to be discriminatory when used at the Arlington

facility. Johnson filed a charge with the EEOC on Oc-

tober 2, 1979, while Furr filed his charge on October 17,

1979. Both were issued right-to-sue letters on December 6,

1979.

Ruling on the motion to intervene, the district court

first concluded that it was not precluded by the terms of

the remand of this court from allowing intervention but,

in the exercise of its discretion, then denied the motion.

The court gave two essential reasons. First, the length of

time that the case had continued from its filing in May

1975. On this the court observed that “[i]t’s time this

case got concluded.” Second, said the court, intervention

would require a hearing on the hiring claims, and this

would delay relief on the job assignment claims now up-

held on the first appeal because “it’s impractical if not

impossible to be running part of the case here and part

before the master on the job assignments claims.”

Plaintiffs and Western subsequently reached, and sub-

mitted to the district court, a settlement agreement cover-

ing all outstanding issues in the litigation except for the

ciaims relating to hiring discrimination. The court en-

tered a final judgment approving this agreement on Sep-

tember 19, 1980, and this appeal challenging the refusal

to allow intervention for prosecution of the hiring claims

followed.

5a

II

The sole issue is the propriety of the district court’s

denial of the motion for permissive intervention under

Fed.R.Civ.P. 24 (b). Although a decision on a Rule 24(b)

motion lies within the sound discretion of the trial court,

Black v. Central Motor Lines, Inc., 500 F.2d 407, 408

(4th Cir. 1974), some standards have been developed to

guide the courts in making intervention determinations.

We conclude that the district judge did not properly apply

those standards here.

The court first emphasized the lateness of the motion in

the progress of the protracted litigation. We have held,

however, that in ruling on motions for intervention

“[mJere passage of time is but one factor to be con-

sidered in light of all the circumstances.” Spring Con-

struction Co. v. Harris, 614 F.2d 374, 377 (4th Cir. 1980) ;

accord, Atkins v. State Board of Education, 418 F.2d 874

(4th Cir. 1969). In a class action the critical issue with

respect to timeliness is whether the proposed intervenor

moved to intervene “as soon as it became clear . . . that

the interests of the unnamed class members would no

Western also argued below and now presses on this appeal the

contention that the district court was “expressly precluded” from

permitting intervention in in the present case by our refusal to

grant a petition for rehearing following the original appeal. In a

footnote to their petition for rehearing, plaintiffs referred to Good-

man v. Schlesinger, 584 F.2d 1325 (4th Cir. 1978), and Coz v.

Babcock & Wilcox Co., 471 F.2d 13 (4th Cir. 1972), in which, upon

finding that the named plaintiffs were not adequate representatives

of a class, we remanded the cases with instructions that the class

actions be retained on the docket for a reasonable time to afford an

opportunity for a proper class representative to step forward. Plain-

tiffs remarked in the petition that failure to use such a procedure

in the present case was “unfathomable.” Western now reasons

that, because plaintiffs requested in their petition for rehearing

that we instruct the district court to utilize the procedure man-

dated in Goodman and Coz, our denial of that petition constitutes an

express prohibition of intervention on remand. We ascribe no such

significance to the denial of the petition.

stewardess in McDonald had moved to intervene

within the time for taking an appeal and as soon as she

was advised that the named class representatives did not

intend to prosecute an appeal, the Supreme Court in that

case affirmed the court of appeals’ reversal of the district

court’s order denying intervention. Id. at 396, 97 S.Ct. at

2470.

Invoking this standard, Western argues that the pro-

posed intervenors should have become aware of the need

and moved to intervene at the very latest when the court

of appeals entered its inadequacy of representation deci-

sion in April 1979. A motion to intervene filed more than

nine months after that date could not have been timely

says Western.

The proposed intervenors, on the other hand, argue

that they were under no obligation to seek intervention

until the Supreme Court denied plaintiff’s petition for a

writ of certiorari on October 29, 1979. On this we agree

with the intervenors. Until the Supreme Court denied

certiorari the named class representatives were actively

pursuing, and had not been foreclosed from representing,

the interests of the hiring class. At the time certiorari

was denied, proposed intervenors Johnson and Furr had

already begun the administrative action that was a pro-

cedural prerequisite to their intervention by filing charges

with the EEOC, and proposed intervenor Bailey took that

step eight days later on November 6, 1979. All three pro-

posed intervenors received their right-to-sue letters on

December 6, 1979. Just as the stewardess in McDonald

timely sought intervention within the thirty days avail-

able for taking an appeal, the proposed intervenors in the

present case, by filing their motion on January 17, 1980,

timely sought intervention well within the 90 days that

they had under section 706(f) (1) of Title VII to institute

suit.

7a

In any event, the “most important consideration [in

passing on an application for intervention] is whether

the delay has prejudiced the other parties.” Spring Con-

struction Co. v. Harris, 614 F.2d at 377. Western clearly

could claim no prejudice from the delay itself because, like

the employer in McDonald, it was “put on notice by the

filing of the . . . complaint of the possibility of classwide

liability, and there is no reason why . . pursuit of that

claim should not be considered timely under the circum-

stances.” United Airlines, Inc. v. McDonald, 432 U.S. at

395, 97 S.Ct. at 2470.

The prejudice that might have resulted to those mem-

bers of plaintiff class whose claims had been affirmed on

appeal presents a much more troublesome question. In

fact, this may have been the district court’s primary rea-

son for denying intervention. Courts have properly “em-

phasized the seriousness of the prejudice which results

when relief from long-standing inequities is delayed.”

Alaniz v. Tillie Lewis Foods, 572 F.2d 657, 659 (9th Cir.

1978). Moreover, it is clear that had intervention been

allowed the district court would have been compelled to

conduct a hearing on class certification, see Simmons v.

Brown, 611 F.2d 65, 67 (4th Cir. 1979), and that some

relitigation on the merits would have followed.

Any prejudice to other members of the class could have

been avoided, however, by simply bifurcating the proceed-

ings. While the trial court considered it “impractical if

not impossible to be running part of the case here and

part before the master on the job assignments claims,” it

gave no reasons in support of this conclusion and Western

has offered none on appeal. The claims of those members

of the class alleging discrimination in hiring essentially

were ones to be heard on the merits of liability, while

those for discrimination in job assignments needed only

to be heard on damages. Bifurcation of Title VII class

action proceedings for hearings on liability and damage

is now commonplace, and there is all the more justification

for such a procedure when, as here, separable claims, sub-

8a

ject if necessary to structuring by sub-classes, Fed.R.Civ.

P.23(c) (4) (B), are involved. While we owe great defer-

ence to the special capability of a trial judge to gauge

better than can we such practical difficulties, we conclude

that here the impracticality envisioned was given greater

weight than general experience warrants.

In a general attack on the propriety of intervention,

Western contends that post-remand intervention is an un-

usual procedure and should be granted only in exceptional

circumstances. To the extent any more stringent standard

for intervention following judgment is warranted, how-

ever, it must be based upon heightened prejudice to the

parties and more substantial interference with the orderly

process of the court in that context, MacDonald v. E. J.

Lavino Co., 480 F.2d 1065, 1072 (5th Cir. 1970), and

„ilf neither of these results would occur the mere fact

that judgment already has been entered should not by

itself require an application for intervention to be de-

nied.” C. Wright & A. Miller, 7A Federal Practice &

Procedure, § 1916, at 582 (1972). We have on a number

of occasions permitted intervention following remand, see,

0. g., Spring Construction Co. v. Harris, 614 F.2d at 376,

and see no special prejudice factors operating here to

preclude application of the usual standards.

In addition to our perception that the factors directly

drawn upon by the district court in denying intervention

were given undue weight, we think the court failed to

consider—or gave insufficient weight to—another factor

possibly militating in favor of intervention. That is the

possibility that the original findings of discrimination in

hiring might be reinstated were intervention allowed and

the intervenors found in the process to be adequate repre-

sentatives of a properly certified class.“ Given the likeli-

2 Although the district court made no express reference to this

factor in its oral denial of the motion for intervention, it was ap-

parently presented to the court, see Jt. App. at 412, and we there-

fore consider it appropriate to take that factor into account on

appeal.

hood that if denied intervention, these unsuccessful inter-

venors or others would pursue the class claim in a new

action, see Philadelphia Electric Co. v. Anaconda Ameri-

can Brass Co., 43 F.R.D. 452, 461 (E.D.Pa.1968), re-

instatement of the findings and conclusions already made

on the claim in this action would have the virtues of con-

serving judicial resources and of avoiding the risk of in-

consistent sequential adjudications of the critical issues.

Whether reinstatement under these circumstances might

ever be appropriate and, if so, the conditions under which

it might be are apparently questions we have not previ-

ously addressed. Western contends—apparently as an

absolute principle of judical power—that reinstatement

is simply not possible. Vacation of the judgment in favor

of the hiring claimants on appeal had the effect, contends

Western, of rendering the findings upon which it was

based void ab initio. The cases cited to support this, how-

ever, stand only for the proposition that vacated findings

have no vitality as precedent or res judicata in other

litigation. See, e.g., Simpson v. Motorists Mutual Insur-

ance Co., 494 F.2d 850 (7th Cir. 1974); Troy State Uni-

versity v. Dickey, 402 F.2d 515 (5th Cir. 1968). But ef.

Dunlop v. Rhode Island, 398 F.Supp. 1269 (D.R.1.1975)

(while vacated holding of earlier case may not be given

collateral estoppel effect in subsequent case, findings of

fact in earlier case may be adopted in subsequent case if

no new evidence presented).

More apposite when the question is, as here, ti. pro-

priety of their reinstatement in the same action is Finn v.

American Fire & Casuaity Co., 207 F.2d 118 (5th Cir.

1953). Finn was a removed diversity case in which a jury

returned a verdict against one of two insurance companies

sued by a policyholder. On appeal the Supreme Court

vacated the district court judgment because of a lack of

perfect diversity. Upon remand perfect diversity was ob-

tained by dismissal of one of the defendants, but the

district court declined to reinstate plaintiffs’ vacated judg-

10a

ment on the basis that it had been renderd without juris-

diction. Not so, said the Fifth Circuit on appeal, jurisdic-

tion was not wholly lacking at the time and the judgment

might, in the district court’s discretion, be reinstated now

that the jurisdictional defect had been cured. Finn v.

American Fire & Casualty Co., 207 F.2d at 115; accord,

Levering & Garrigues Co. v. Morrin, 61 F.2d 115 (2d

Cir. 1982).

Finn’s general principle—with which we agree—is that

upon remand following the vacation of a judgment for a

jurisdictional defect, it may be appropriate for a trial

court to reinstate the judgment once the defect has been

cured. This principle must certainly extend past the re-

instatement of a judgment itself to reinstatement of find-

ings and conclusions supporting it, and past true juris-

dictional defects to less fundamental defects not affecting

the merits. The critical limiting factor is of course that

the error or defect must not have infected the merits of

the very determination sought to be reinstated.

The defect of inadequate representation in a class ac-

tion concededly has, in general, both merits and non-

merits implications. Viewed only as a special form of

standing requirement in class actions, it smacks of juris-

diction. As such, it is clearly even less fundamental than

a pure jurisdictional requirement, so that reinstatement

of findings following cure of this defect would seem even

more justifiable than reinstatement following cure of a

true jurisdictional defect.

On the other hand, this defect can be viewed as one

potentially affecting the merits. Obviously, the require-

ment of adequate representation of the class members’

interests looks to insuring a fair result on the merits, in

a way that true jurisdictional requirements do not. To

this extent, reinstatement following a cure of this defect

might be seen as less justifiable.

From this it is obvious that the defect is not susceptible

to general categorization in these terms. Rather, inquiry

lla

must turn in the particular case upon whether the specific

inadequacy found did or did not probably affect the merits

in a way making reinstatement inappropriate. Three in-

quiries are pertinent to this determination: whether the

new class representative desires or resists reinstatement;

whether the finding of inadequacy was based solely upon

a formal lack of identity of interests and injury between

representative and class or upon demonstrated ineffective-

ness of representation, and whether the party opposing

the class will be unfairly prejudiced by the reinstatement.

class all suggest an effect upon the merits and militate

against reinstatement, while the converse of each suggests

a jurisdiction-like defect militating in favor of reinstate-

ment once it is cured.

The new class representative’s attitude is relevant be-

Civil § 1765 (1972) If properly qualified new repre-

sentatives are satisfied with generally favorable findings

made under technically “inadequate” representation, it can

That the adequacy of representation requirement of Fed. R. Civ. P.

23(a)(4) may be thought to operate in close conjunction with the

commonality of issues requirement of 23(a)(2) and the typicality

of claims requirement of 23(a)(3) to shape the class action issues

Co., 628 F.2d 267, 273 (4th Cir. 1980), does not belie the fact that

its primary purpose is to insure, in the words of the rule, that

“the representative parties will fairly and adequately protect the

interests of the class.” It should of course be open to a party

opposing the class to resist reinstatement on the basis that, under

the particular circumstances, that party’s interests were directly

jeopardized in this way by the fact that class members’ claims were

litigated in their behalf by persons who did not share their inter-

12a

reasonably be assumed that the class members’ primary

interests in fairness, see Fed.R.Civ.P. 23(a) (4), have

been served and that the “inadequacy” was only formal.

The determination of inadequacy on appeal may have

been concerned only with a technical lack of identity of

interest and injury between representative and class, ¢.g.,

Hill v. Western Electric Co., 596 F.2d at 101-02, or only

with the actual ineffectiveness of a technically qualified

representative, ¢.g., Nance v. Union Carbide Corp., 540

F.2d 718 (4th Cir. 1976), vacated and remanded on other

grounds, 431 U.S. 952, 97 S.Ct. 2671, 53 L.Ed.2d 268

(1977), or with both, e. g., East Texas Motor Freight

System, Inc. v. Rodriguez, 431 U.S. at 405, 97 S.Ct. at

1898. To the extent inadequacy is based solely upon lack

of sufficient identity of interest, any presumed adverse

effect on the merits stemming from this may in fact be

utterly belied by the outcome, as we recognized, for ex-

ample, in Brown v. Gaston County Dyeing Machine Co.,

457 F.2d 1377, 1380 (4th Cir. 1972) (representation

adequate even though representative’s individual claim

without merit)“ To the extent the inadequacy determina-

tion was based solely upon a presumption of ineffective-

ness from lack of shared interest rather than a demon-

strated ineffectiveness, it resembles the jurisdictional de-

fect whose cure was held in Finn to permit reinstatement,

and should be treated accordingly.

Even if the above two factors favor, or do not neces-

sarily preclude, reinstatement of findings favorable to

* Rodriguez, holding that failure of a named plaintiff's claim

prior to class certification precluded subsequent class certification

with that plaintiff as representative, expressly noted that “a dif-

ferent case would be presented if the [trial court] had certified a

class and only later had it appeared that the named plaintiffs were

. . . inappropriate class representatives.” Rodriguez, 431 U.S. at

406 n.12, 97 S.Ct. at 1898 n.12. This “different case” is of course

exactly the one presented in Brown and in the instant case. “In such

a case,” said the Rodrigues Court. the claims of the class

members would not need to be mooted or destroyed... Id.

to permit intervention on other grounds. -

premature issuance of right-to-sue letters by the EEOC.

* With respect to the last of these premature issuance of right-

to-sue letters we offer these observations. Whatever the “juris-

dictional” consequence of premature issuance of right-to-sue letters

or of premature commencement of private enforcement actions

under Title VII, see EEOC v. Cleveland Mills, 502 F.2d 153, 155-56

(4th Cir. 1975) (dictum: “private right of action may not be exer-

cised until the lapse of 180 days”), we think they do not apply

to subsequent motions, such as these, to intervene as class repre-

sentatives in an ongoing class action as to which this possibly

14

mally qualified to act as a elass representative the inter-

c

no

“jurisdictional” predicate has already been met. To the extent the

180-day lapse before letter or suit is a jurisdictional predicate, see

EEOC v. Raymond Metal Products Co., 385 F.Supp. 907, 916 (D.Md.

1974), aff'd in relevant part, 580 F.2d 590 (4th Cir. 1976), it is so

only to “avoid[] potential interference with the Commission in the

performance of its primary duties of conciliation and enforcement.”

EEOC v. Cleveland Mills, 502 F.2d at 156 (dictum). Where, as here,

the original right to sue letter and commencement of action were not

so premature, any “jurisdictional” concern on this score has been

satisfied both as to the class and as to any putative members of that

class who may thereafter seek intervention as named plaintiffs. Cf.

4lbemarle Paper Co. v. Moody, 422 U.S. 405, 414 & n.8, 95 S.Ct.

2362, 2370, 45 L.Ed.2d 280 (1974). Accordingly, we hold that pre-

mature issuance of right-to-sue letters to the putative intervenors

here would not, standing alone, preclude their intervention to prose-

cute individual or, as representatives, class claims.

A related problem, however, not specifically addressed by the

parties, but potentially dispositive of the right of anyone effectively

to intervene to press individual or class claims of hiring discrimina-

tion, is suggested by this challenge of prematurity, and must be

addressed by the court on remand. That problem is whether, prior

to commencement of the class action, Western was given fair notice

and an opportunity to resolve through administrative concil' ation

the hiring discrimination claims now sought to be asserted by the

intervenors. This was Western’s due, see Scott v. Board of Educa-

tion; 18 F.E.P. Cas. 1230, 1233 (D.Md. 1979), and if it has not

been accorded, those claims, either class or individual, may not now

be prosecuted in this action by these intervenors or others. Cf.

EEOC v. Sears, Roebuck & Co., 650 F.2d 14 (2d Cir. 1981) (EEOC

suit dismissed for lack of fair opportunity in advance of action to

“discuss [challenged] practices” at two of national chain's stores

On this question the record on this appeal is completely silent,

and it must therefore be addressed in the first instance by the

district court upon remand. This inquiry should be conducted in

light of the generally accepted principle that the scope of a Title VII

lawsuit may extend to “any kind of discrimination like or related

to allegations contained in the charge and growing out of such

allegations during the pendency of the case before the Commission.”

Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.

1970) ; see also EEOC v. General Electric Co., 582 F.2d 359, 373

15a

If the district court finds any of the proposed inter-

venors formally qualified to represent the class,’ it should

then reconsider the motion for intervention in light of our

discussion of the appropriate standards and factors ap-

plicable in this case. In that connection, we make these

specific observations.

First, for reasons earlier stated, we think that neither

the post-remand timing of the motion, nor any supposed

prejudice to the interests of other members of the plain-

tiff class from intervention should militate against its

allowance on the particular facts here presented.

Second, in considering the propriety of reinstating its

hiring claim findings and conclusions as that bears upon

the intervention question, we believe the court should

be guided by the following considerations. The first

inquiry should be whether any proposed intervenor Is]

found preliminarily qualified to serve as class representa-

tive desire in behalf of the class to have the findings re-

instated. If they do, this independent judgment can be

taken as an indication that the class, for its part, con-

siders that the representation provided the class mem-

bers’ interests in litigation of their hiring claims was

“fair and adequate” per Rule 23(a) (4).

Next, the court should take into account that this

court’s determination of inadequacy of representation on

the first appeal was based entirely upon the formal lack

of sufficient identity of interests between any class repre-

(4th Cir. 1976). This means that if Western was in fact given fair

notice and an opportunity to discuss charges of, or administrative

inquires about, discrimination in hiring at its Arlington, Virginia

facility prior to commencement of the class action intervention is

not, on that basis alone, precluded.

7 Of course, even though an intervenor may be found preliminarily

qualified over Western’s procedural and jurisdictional challenges,

see note 5 supra, he or she may yet be revealed to be an inadequate

representative by subsequent developments, see note 4 supra. But

that must of course abide those developments.

16a

sentatives and the non-hired members of the class. See

Hill v. Western Electric Co., 596 F.2d at 101-02. We did

not then address the question of the actual effectiveness

of the representation notwithstanding its formal inade-

quacy. When actual effectiveness is explored as a matter

of first instance inquiry, it is obvious that the representa-

tion actually provided had all the indicia of diligence and

practical effectiveness,* including most notably that it

yielded a favorable result on these class members’ claims.

Lastly, in assessing any prejudice to the party opposing

the class from reinstatement of the hiring-claim findings,

three considerations are important. The first is that those

findings were made in a normal adversary vontext in

which no prejudice could have been suffered by Western

from the fact alone that the class members were then

“inadequately” represented for class action purposes. The

second, earlier mentioned, is that the findings, if rein-

stated, would of course be subject to appellate review for

error leading to their original adoption if they then found

The class representatives asserted and sought class certification

of the claim of discrimination in hiring from the outset of their

lawsuit. Jt. App. at 16. Plaintiffs presented evidence in support of

this claim, including the testimony of a number of experts. See id.

at 77-219. Based on the evidence submitted by plaintiffs, the district

court concluded that Western had discriminated in hiring against

both blacks and females at its Arlington, Virginia facility. Id. at

236. To remedy past discrimination and to prevent its recurrence

in the future, the district court ordered the award of back pay to

those who had been discriminatorily denied employment, priority

hiring of those same persons as vacancies became available, and the

formulation and implementation of nondiscriminatory, job-related

employment criteria. Id. at 314.

In addition, plaintiffs vigorously defended the district eburt's de-

cision on Western's appeal to this court. When we vacated that deci-

sion with respect to the hiring claims, plaintiffs sought reconsidera-

tion of our decision in a petition for rehearing directe, o this

court and in a petition for a writ of certiorari addressed to the

Supreme Court. One can therefore hardly imagine more diligent

representation.

17a

their way into any appealable order or judgment adverse

to Western. The third is that to the extent Western has

relevant evidence of events occurring or conditions aris-

ing after the date of the findings—as opposed to new

evidence of events and conditions predating the find-

ings —reinstatement would not of course preclude con-

sideration of that evidence, assuming it is otherwise

admissible.

The action is remanded for further proceedings con-

sistent with this opinion.

VACATED AND REMANDED.

A ready example of the critical distinction, for this purpose, be-

tween new evidence to refute existing findings and evidence of new

post-finding events or conditions, may be suggested by Western's

contention, advanced in the district court in opposing the motion

to intervene, that it now has new evidence validating its pre-

employment test. From this Western apparently contended that

reinstatement of the findings would result in no economy of re-

sources and avoid no duplications of proof because it would be

entitled as a matter of course to introduce this (and presumably any

other relevant) evidence to relitigate the underlying issue if inter-

vertion were allowed.

If this is the contention, it is flawed. To the extent the validity of

that test, hence Western’s business necessity defense based upon it,

has already been determined adversely to Western on the evidence

then before the court, there would obviously be no legal right on

Western’s part, were the court disposed generally to reinstate the

findings, to have either that or any other finding reopened to per-

mit the introduction of new evidence hearing upon it. The situation,

instead, would be perfectly analogous to that in which a party seeks

as a matter of the court’s discretion to have findings set aside on

the basis of additional evidence under Fed.R.Civ.P. 52(b) or

59(a)(2), or to be relieved from the effect of a judgment because

of newly discovered evidence under Fed.R.Civ.P. 60(b) (2).

In direct contrast, if evidence were available to Western that

since the date of the findings a new pre-employment test had been

adopted, that evidence might be admissible as a matter of right

because relevant in establishing the terminal date of any continuing

violation originally found by the court, hence the composition of the

class entitled to ultimate relief.

18a

WIDENER, Circuit Judge, dissenting:

Notwithstanding the majority’s extended opinion in

this case, the only issue before this court on appeal is

whether the trial court erred in refusing to allow the

appellants to intervene in the underlying action, pursuant

to Rule 24(b) of the Federal Rules of Civil Procedure.

The standard for judging such permissive intervention

motions is whether the trial court abused its discretion,

and “unless that discretion is abused, the court’s ruling

will not be disturbed on review.” NAACP v. New York,

413 U.S. 345, 366, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 848

(1973); 7A Wright & Miller, Federal Practice and Pro-

cedure § 1913 at 551-552 (1972). I do not believe we can

make a finding of abuse of discretion, and therefore I

respectfully dissent. We have converted what I think

should have been a routine per curiam dismissal of the

appeal into a strained reversal.

I

The principal consideration for a trial court in de-

ciding permissive intervention motions is whether the

intervention will unduly delay or prejudice the adjudica-

tion of the rights of the original parties. United States

Postal Service v. Brennan, 579 F.2d 188, 191 (2d Cir.

1978); Wright & Miller, supra. The trial court consid-

ered such criteria in denying intervention, and thus we

should be wary of overruling its decision. It noted the

lengthy period already taken for disposition of this action

and the prospect for future lengthy delays. It further

noted that lengthy hearings were likely as to whether

these particular intervenors were qualified class repre-

sentatives. Such hearings would either delay those pro-

ceedings already on remand or would require bifurcation

of the action, a procedure the trial judge found to be

“impractical if not impossible.” While the majority has

taken issue with the trial judge’s characterization of the

problems with bifurcation, it relies only on its statement

19a

F

f

8

2

5

f

1

offers no explanation of why the trial judge was wrong

about bifurcation in the case at hand.“ In a determina-

tion which was essentially factual, I am reluctant to dis-

agree with, and certainly would not reverse, an experi-

enced trial judge who is intimately familiar with five

years of extended litigation simply because it is theo-

retically possible to effect bifurcation through the use

of subclasses. If the trial court believes and finds that

intervention will cause undue delay, then absent a show-

ing that such intervention will not cause delay, which

does not appear here, I do not think that we may properly

find that the trial court has abused its discretion.

Not only may a trial court deny intervention on the

basis of undue delay, but it may also consider whether

intervention will prejudice any of the parties. The ma-

jority has found that Western would not be prejudiced

by an intervention because it was “put on notice by the

filing of the . . . complaint of the possibility of classwide

liability, and there is no reason why . . pursuit of that

claim should not be considered timely under the circum-

stances.” At 386, quoting United Airlines, Inc. v. Me-

Donald, 432 U.S. 385, 395, 97 S.Ct. 2464, 2470, 53 L.Ed.

2d 423 (1977). I must disagree. First, if intervention is

allowed, Western is prejudiced because the original ad-

1 While the majority makes no mention of the particular problems

with bifurcation in this case, it admits that on remand there are

numerous questions to be considered involving the qualifications of

these indivi¢uals to serve as class representatives. At 390 & n. 6.

It also should be noted that while the majority finds it significant

that the trial judge did not explain the particular problems to be

incurred on bifurcation, at ——, the trial judge’s statement appears

as part of a ruling from the bench and not as part of a formal

memorandum. I also note my disagreement with the entire premise

of footnote 6 of the majority opinion. It is apparent from the record

that the EEOC did not receive any complaints on Western’s hiring

practices until October 2, 1979, over four years after this action

was filed in district court, and nearly three years after the order

initially appealed from.

21

at

46

175

4 *

K

si

i

majority opinion even

previously vacated by this court. Hill v. Western

„ 596 F.2d 99 (4th Cir.), cert. denied 444

S.Ct. 271, 62 L.Ed.2d 186 (1979). Cer-

a direction for final judgment could be more

pre to the defendant.

Second, the reasoning from the McDonald case, relied

upon by the majority, is inapplicable in the present

action. In McDonald, the original litigation involved

plaintiffs who were victims of the same discriminatory

practices alleged in the subsequent class action appeal.

482 U.S. at 387, 97 S.Ct. at 2466. The only difference

tu

:

1585

115

Sa

stantive question was the same and the issue was inde-

class was overly broad and thus not properly constituted.

At issue in the original trial of this case were Western’s

personnel policies concerning a wide range of employees

and would-be employees. When this court held that job

defense

that the original class was overly broad and our vacation

2la

In light of this prejudice and the trial court’s well

reasoned conclusion that intervention would cause undue

delay for the original parties, I do not believe that the

trial court abused its discretion in denying intervention.

II

Other wholly independent grounds call for affirming the

district court’s exercise of discretion in its denial of

intervention. SEC v. Chenery Corp., 318 U.S. 80, 88, 63

S.Ct. 454, 459, 87 L.Ed. 626 (1943). The record on

appeal indicates that the intervenors are not members

ef the class of job applicants which was involved in the

first trial and thus it is incorrect to allow their inter-

vention now. Even if their status may not be perfectly

clear, their claims to class membership are doubtful at

best, and certainly are “too speculative and too contin-

gent on unknown factors to conclude that there was an

abuse of discretion in denying leave to intervene.”

Sutphen Estates v. United States, 342 U.S. 19, 23, 72

S.Ct. 14, 17, 96 L.Ed. 19 (1951). Allowing them to

intervene would have unjustifiably complicated the pro-

ceedings by adding extraneous issues. Montgomery v.

Rumsfield, 572 F.2d 250, 255 (9th Cir. 1978) ; Lipsett v.

United States, 359 F.2d 956, 959-60 (2d Cir. 1966); 3B

Moore’s Federal Practice . 24. 104]; Wright & Miller,

supra, 5 1913 at 556-57. It is apparent from the dis-

cussion which follows that the issues as to class member-

ship would have been much more appropriately handled

at a separate trial. Lipsett, 359 F. 2d at 960.

Two of the three intervenors, Darlene Johnson and

Vietor L. Furr, III, did not apply for employment with

Western until 1979 and then made application to West-

ern’s Landover, Maryland facility. The trial in this

case took place in 1976, three years before Johnson and

Furr applied, and the trial concerned Western’s hiring

practices in Arlington, Virginia. It is apparent that the

conditions at Landover experienced by Furr and Johnson

considered a functional successor to the Arlington fa-

cility,? all hiring decisions at Landover are made by

Western’s Maryland Installation District personnel and

not the Virginia Installation District personnel responsi-

ble for Arlington. The practices of the Virginia person-

nel who interviewed job applicants for the Arlington

facility were considered by the district court to be a

factor in the evidence of discrimination against women

and blacks. Second, even if the Landover applicants

could be considered to have constructively applied to the

Arlington facility, that facility made a major change in

its hiring practices in 1976, the year of the trial. Begin-

ning then, most entry level hiring was done through

referrals from the Virginia Employment Commission

rather than through a variety of sources. Western’s

earlier practices connected with the advertising of avail-

able positions had been a major concern of the trial court.

Finally, and perhaps most importantly, even though it

concerns only part of the district court’s decision, West-

ern’s hiring of women and blacks in the 1976-79 period at

its Arlington Service Center was significantly higher than

in previous years. During that period, 53% of new hires

were female and 70% were members of minority groups.

These percentages are close to or even above the quotas

set in the district court’s decree,’ and are not too different

from the percentage of total applicants which came from

each group (applicants were 50% female and 72%

2 Western does not deny that its Maryland Installation District

has assumed some installation duties that were formerly handled by

the Arlington facility. It is important to note, however, that the

Arlington facility housed both service and installation facilities and

that all of the service and most of the installation functions remain

at Arlington.

The district court decree stated that if qualified individuals were

available, the Arlington Service Center’s new hires must be 60%

female and 67% black.

minority). Statistics from earlier years which showed

Western hired a far higher percentage of white, male

applicants than female and black applicants had been a

significant contributor to the district court’s finding that

Western discriminated. It is thus obvious that even

though the district court’s decree never took effect, West-

ern’s hiring practices in 1979 were far different than

those prior to the 1976 trial. Furr and Johnson did not

“suffer the same injury as the class members.” Fast

Texas Motor Freight v. Rodriguez, 431 U.S. 395, 403, 97

S. Ct. 1891, 1896, 52 L.Ed.2d 453 (1977).

The third intervenor, Betty Bailey, claims to have filed

applications with Western in 1972 and 1973, but did not

file a complaint with the EEOC until November 1979.

There is a 180 day statute of limitations for the filing

of Title VII complaints with the EEOC, 42 U.S.C.

§ 2000e-5(e), although courts will toll the deadline for

members of a class where there is a class action under-

way. Wetzel v. Liberty Mutual Insurance Co., 508 F.2d

239, 246 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct.

2415, 44 L.Ed.2d 679 (1975); see American Pipe & Con-

struction Co. v. Utah, 414 U.S. 538, 553, 94 S.Ct. 756,

766, 38 L.Ed.2d 713 (1974). Courts will not toll the

statute, however, where the individual could not have

participated in the original action. That is, if the statute

of limitations had already expired for the individual

when the action was first commenced, then the individual

cannot be considered a member of the class before the

court. McDonald, 432 US. at 392, 97 S.Ct. at 2468;

Wetzel, 508 F.2d at 246.“ Bailey claims she applied to

Western at the latest in 1973, was interviewed and not

hired. The complaint in this action was filed in district

* Courts have recognized an exception to this rule in the case of

continuing violations of Title VII statutes. See Williams v. Norfolk

& Western Railway, 530 F.2d 539 (4th Cir. 1975). As explained in

footnote 5, Bailey cannot be considered to be the victim of continu-

ing discrimination.

|

that scrutiny of Western's hiring practices

prior to the filing of charges with the EEOC. Instead, the court

were a continuing violation of Title VII. I believe the district court

not have been a continuing policy not to hire her, in contrast to the

ceedings, 582 F.2d at 1148-49; Olson v. Rembrandt Printing Co.,

511 F.2d 1228, 1234 (8th Cir. 1975).

who wanted a job but never applied could sue under Title VII by

simply filing an EEOC complaint, see Bronze Shields at p. 1083.

Supreme Court in East

Texas Motor Freight v. Rodriguez, 431 U.S. 395, 97 8.Ct.

1891, 52 L.Ed.2d 453 (1977). In Hill I, this court or-

Id. at 107 (emphasis added).

who has brought the lawsuit will be .n adequate

representative of those who may be the real victims

of discrimination.

431 U.S. at 405-06, 97 S.Ct. at 1897-98. The majority in

the present action has sought to distinguish Rodriguez by

saying:

Rodriguez, holding that failure of a named plaintiff’s

claim prior to class certification precluded subsequent

class certification with that plaintiff as representa-

tive, expressly noted that “a different case would be

presented if the [trial court] had certified a class and

only later had it appeared that the named plaintiffs

were .. inappropriate class representatives.” Rod-

riguez, 431 U.S. at 406 n. 12 [97 S.Ct. at 1898 n. 12).

chine Co., 457 F.2d 1377 (4th Cir.),

U.S. 982 [93 S.Ct. 319, 34 L.Ed.2d

eh

8

z

8

At 389, n. 4.

The majority, however, in its quotations from Rodri-

guez, has omitted a vital clause from the Supreme Court’s

opinion which actually said:

27a

[A] different case would be presented if the District

Court had certified a class and only later had it ap-

peared that the named plaintiffs were not class mem-

bers or were otherwise inappropriate class repre

sentatives. In such a case, the class claims would

have already been tried, and, provided the initial cer-

tification was proper and decertification not appropri-

ate, the claims of the class members would not need

to be mooted or destroyed because subsequent events

or the proof at trial had undermined the named

plaintiffs’ individual claims. See, eg., Franks v.

Bowman Transportation Co., 424 U.S. 747, 752-757

[96 S.Ct. 1251, 1258-60, 47 L.Ed.2d 444]; Moss v.

Lane Co., 471 F.2d 853, 855-856 (CA4).

431 U.S. at 406, n. 12, 97 S.Ct. at 1898, n. 12 (emphasis

added). Clearly, the case at issue is one where the initial

certification was not proper. In Hill I, we so held and

said, “Under Rodriguez, certification of a class including

victims of alleged hiring discrimination who never were

employed by Western Electric was in error.” 596 F.2d at

102. The majority’s distinction of Rodriguez here thus

contradicts both our first Hill opinion and Rodriguez

itself.

It is important to distinguish the facts here from cases

such as Brown v. Gaston County Dyeing Machine Co., 457

F.2d 1377 (4th Cir.), cert. denied, 409 U.S. 982, 93 S.Ct.

319, 34 L.Ed.2d 246 (1972), and Moss v. Lane Co., 471

F.2d 853 (4th Cir. 1973).* Those cases involved so-called

“headless classes” where a plaintiff brought suit as a class

representative, was certified by the court, and then turned

out to be an inappropriate class representative because his

individual claims failed. In Brown, for example, the trial

court determined that the class representative had not

suffered discrimination after the court had certified the

* See also Franks v. Bowman Transp. Co., 424 U.S. 747, 96 S.Ct.

1251, 47 L.Ed.2d 444 (1976); Simmons v. Brown, 611 F.2d 65 (4th

Cir. 1979) ; Goodman v. Schlesinger, 584 F.2d 1325 (4th Cir. 1978) ;

Coz v. Babcock & Wilcox Co., 471 F.2d 13 (4th Cir. 1972).

class representative’s individual

claim was found baseless. 471 F.2d at 855-56.

By contrast, in the instant case the class representa-

tive’s claim was found to be tenable, but under Rodriguez

he was not permitted to represent employees who were not

similarly injured. The error was in the certification

never part of te class of disappointed applicants for

employment and thus certification never should have

The majority characterizes the problems with the origi-

nal certification as involving only a “technical lack of

identity of interest and injury between representative and

class,” at 389, and thus easily cured. It reiterates that the

first Hill decision “was based entirely upon the formal

lack of identity of interests.” Id. at 391. Such statements

trivialize both Hill I and Rodriguez by their necessary im-

plication that class composition is of little or no im-

portance in Title VII actions. Admittedly, this court has

not been consistent in its attitude toward the breadth of

classes in employment discrimination litigation. In many

cases, both before and after Rodriguez, we have refused

to tolerate overly broad classes. E.g., Abron v. Black &

Decker, 654 F.2d 951 (4th Cir. 1981); United Black

Firefighters of Norfolk v. Hirst, 604 F.2d 844 (4th Cir.

1979) ; Belcher v. Bassett Furniture Industries, Inc., 588

F.2d 904 (4th Cir. 1978) ; Doctor v. Seaboard Coast Line

R. Co., 540 F.2d 699 (4th Cir. 1976). In others, how-

ever, we have allowed broadly constituted actions to pro-

ceed. E.g., Brown v. Eckerd Drugs, 663 F.2d 1268 (4th

Cir. 1981); Barnett v. W. T. Grant Co., 518 F.2d 548

(4th Cir. 1975). In light of the language of Rodriguez

that class representatives must “ ‘possess the same in-

terest and suffer the same injury’ as the class members,”

431 U.S. at 408, 97 S.Ct. at 1896, it is clear that the

course taken in the cases mentioned first just above is

that approved by the Supreme Court. Nevertheless, the

majority holds that an overly broad class is only a “tech-

nical” problem and that proceeding with such a class has

no real effect on the case. I can not accept this proposi-

tion. If it is adopted, Rodriguez is robbed of its virtue,

and while it may remain good law, there will be no reason

for a district court to enforce its holding in this circuit.

Crucial to the majority’s holding is the conclusion that

an appellate court’s order vacating a decision because

of faults in class certification does not preclude a court

from subsequently reinstating the substantive findings.

The majority quite candidly admits that this is a ques-

tion not previously addressed, at 387-388, and for pre-

cedent relies upon Finn v. American Fire & Casualty Co.,

207 F.2d 113 (5th Cir. 1953). In Finn, the defendants

had removed an action to district court even though there

was imperfect diversity among the parties. The Supreme

Court ordered that the trial court vacate its judgment

because imperfect diversity had meant that the district

court was without jurisdiction to hear the matter. Amer-

ican Fire & Casualty Co. v. Finn, 341 U.S. 6, 18-19, 71

S.Ct. 534, 542, 95 L.Ed. 702 (1951). On remand, the

district court dismissed a not indispensable defendant

then ordered a new trial because the court concluded

that prior to the dismissal, it had been wholly without ju-

risdiction to hear the matter. 207 F.2¢ at 114.“ The Fifth

Circuit reversed the granting of a new trial and ordered

reinstatement of the prior judgment against the remaining

defendant. It relied on cases holding that dismissal of a

The Supreme Court, in remanding Finn, specifically did not

reach the question of whether it would be proper to reinstate the

verdict if perfect diversity was created through dismissal of a

party. 341 U.S. at 18, n. 18, 71 S.Ct. at 542, n. 18.

not indispensable party, after trial, can be given

the retroactive effect of saving the trial court’s initial

E.g., Dollar S.S. v. Merz, 68 F.2d 594,

595 (9th Cir. 1934).

While the Finn decision was probably permissible at

that time,“ a quite recent Supreme Court decision neces-

sarily overrules its holding. In Firestone Tire & Rubber

Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d

571 (1981), the Court considered whether it is proper for

a court of appeals to apply only prospectively a ruling

that if applied to the case before the court of

would deprive that court of jurisdiction. Jd. at 369-70. In

Firestone, the Eighth Circuit had held prospective only

application was proper and thus reached the merits of

the case. The Supreme Court reversed and stated, “If

the appellate court finds that the order from which

not

inquiry is over. A court lacks discretion to consider

merits of a case ove, which it is without jurisdiction. .. .”

Id. at 379 (emphasis added)“ Application of this prin-

ciple to Finn shows that the district court there properly

merits of the case as it was for the Eighth Circuit to

reach the merits of the case in Firestone.’

8 $e Horn v. Lockhart and footnote 10, both infra.

This aspect of the Firestone case was discussed at the 1981

Fourth Circuit Judicial Conference by Professors Mishkin, Wright,

Phemister and Rutherglen (Conference Materials at 17), who take

the position that Firestone overrules our decision on prospective

application in Lester v. McFaddon, 415 F.2d 1101, 1106-08 (4th Cir.

1969). See also Richardson v. McFadden, 563 F.2d 1130, 1132-83

(Hall, J., concurring) (discussing the impropriety of ruling on the

merits when a federal court lacks jurisdiction).

10 The reasoning in Firestone is particularly applicable to the

facts in Horn v. Lockhart, 84 U.S. (17 Wall.) 570, 21 L.Ed. 657

31a

Without Finn and its allied cases, the majority here

has no case support for the proposition courts have

discretion to reinstate judgments vacate cause of de-

fects in the underlying action. I believ the correct

disposition of this question should follow those

courts and authorities which have con: that vacated

judgments are not res judicata and have no prece-

dential value in subsequent litigation. E.g., Simpson v.

Motorists Mutual Insurance Co., 494 F.2d 850, 854 (7th

Cir. 1974); Nader v. Volpe, 466 F.2d 261, 265 (D.C.Cir.

1972); DeNafo v. Finch, 436 F.2d 7387, 740 (3d Cir.

1971); Troy State University v. Dickey, 402 F.2d 515,

516 (5th Cir. 1968); Dunlop v. Rhode Island, 398 F.

Supp. 1269, 1273 (D. R. I. 975); 1B Moore’s Federal

Practice J 0.416 [2] at 2231. The majority here has dis-

tinguished several of the above cases because they con-

cerned use of vacated findings in subsequent actions

rather than in continuation of the same action. At 387-

888. Not only is that not true of DeNafo, for example,"

(1873), a case relied on in many of the decisions cited by the Fifth

Circuit in Finn. In Horn, the defendant twice before the final decree

challenged the jurisdiction of the trial court, alleging a lack of com-

plete diversity. The trial court nevertheless proceeded with the

action and reserved its opinion on the question of jurisdiction. After

determining that certain parties could be dismissed so as to create

diversity, the court entered a final decree against the remaining

parties, and the Supreme Court affirmed. /d. at 579. The Firestone

Court’s statement that a “court lacks discretion to consider the

merits of a case over which it is without jurisdiction,” 449 U.S. at

879, 101 S.Ct. at 676, indicates that a court should no longer pro-

ceed in the manner the trial court did in Horn.

11 In DeNafo, the plaintiff sought judicial review of an adminis-

trative decision denying him Social Security disability benefits. The

district court reversed the denial but then vacated its findings to

allow the Secretary of Health, Education & Welfare to reconsider

the earlier findings. 486 ¥.2d at 739. When the administrative

process again resulted in a denial of benefits, the claimant argued

that the district court’s first decision to award benefits was the

“law of the case” and binding on HEW under principles of res

judicata. The Third Circuit disagreed, “since the court below

vacated its original judgment.” /d. at 740.

but the difference is really immaterial. The essence of the

principle of res judicata is that questions once litigated

between two parties cannot be litigated again. Logically

it makes little difference whether the attempted subse-

quent litigation is a continuation of the same action or

is a separate action. In this case, the question of

whether Western was guilty of discriminatory hiring

practices was never properly before the trial court be-

cause there was never a proper plaintiff. That the court’s

finding should be accorded res judicata effect under these

circumstances is fundamentally incorrect.

I also feel it necessary to comment on the majority’s

statement that “conservation of judicial resources” favors

the reinstatement of the previous findings. “Conserva-

tion of judicial resources” and its cousin “judicial econ-

omy” are currently popular phrases which to my obser-

vation are often used to shortcut regular procedures, as

here. We have before us an attenuated proceeding that

has involved countless hours and thousands of dollars of

the litigants’ resources, attorneys’ resources, and judicial

resources. We have now had this case before us twice,

and under today’s ruling we shall doubtless see it again.

It is a little late to be worried about conservation of

judicial resources. Our obligation is to provide a fair,

impartial and thorough analysis of matters that come

before us. Bypassing fundamental judicial principles such

as res judicata so that we can be efficient does not serve

that pur pose. In an analogous situation, where the ma-

jority holding restricted the availability of a jury trial,

the dissenting justice observed:

No doubt parallel ‘procedural reforms’ could be in-

stituted in the area of criminal jurisprudence, which

would accomplish much the same sort of expedition

of court calendars and conservation of judicial re-

sources as would the extension of collateral estoppel

in civil litigation. Government motions for summary

judgment, or for a directed verdict in favor of the

scrutiny under the jury trial guarantee of the Sixth

Amendment. Just as the principle of separation of

powers was not incorporated by the Framers into the

Constitution in order to promote efficiency or dispatch

in the business of government, the right to a jury

trial was not guaranteed in order to facilitate prompt

and accurate decision of lawsuits.

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 348, 99 S.Ct.

645, 660, 58 L.Ed.2d 552 (1979) (Justice Rehnquist,

dissenting). When part of the trial court’s decision in

it was the trial judge. He con-

The progress of this case raises additional questions

which the majority has failed to confront, but neverthe-

less merit comment. No opinion, I suggest, should be

written without taking them into account when the dis-

appointed intervenor has other adequate means of en-

forcing his right.

First, I have serious doubts whether a person denied

permissive intervention under FRCP Rule 24(b) can

appeal that decision separately from other issues which

remain to be heard. While courts recognize the finality

of decisions regarding denials of intervention of right

sought under FRCP Rule 24 (a), “ the considerations are

12 Sutphen Estates, Inc. v. United States, 342 U.S. 19, 20, 72 S.Ct.

14, 15, 96 L.Ed. 9 (1951).

34a

far different on motions made solely for permissive inter-

vention. The majority here implicitly assumes that per-

missive intervention motions are so separately appealable

and the major treatises apparently would agree where

there has been a “clear abuse of discretion.” 9 Moore’s,

supra, 110.1317] at 182; 7A Wright & Miller, supra,

§ 1923 at 627, 630. Nevertheless, I believe the reasoning

of Judge Friendly to be much more appropriate in such

situations:

Where the sole ground urged for reversal of an

order denying permissive intervention is abuse of

the trial judge’s discretion, we would be reluctant

to permit the fragmentation and delay that would

result from allowing such orders to be appealed, at

least so long as the applicant has “other adequate

means of asserting his rights.” [citations omitted].

Levin v. Ruby Trading Corp., 333 F.2d 592, 594 (2d

Cir. 1964). Moore’s, at 182, also recognizes this view.

Such reasoning is consistent with the Supreme Court’s

reasoning in Sutphen Estates v. United States, 342 US.

19, 72 S.Ct. 14, 96 L.Ed. 19 (1951). There the trial

court’s denial of permissive intervention was affirmed

because there were too many speculative and unknown

factors concerning whether the applicants were entitled to

intervene. Allowing appeals of such denied permissive

intervention motions has the same effect recognized in

Sutphen Estates of delaying the proceedings below.

Similarly, in Allen Calculators, Inc. v. National Cash

Register Co., 222 U.S. 187, 142, 64 S.Ct. 905, 907, 88

L.Ed. 1188 (1944), a case which involved an appeal fol-

lowing the entry of a final decree, the Supreme Court

noted that review of certain antitrust decisions was

vested solely in the Supreme Court “to prevent the delay

of unwarranted 2ppeals by disappointed applicants to in-

re ee ee

suits under the antitrust acts. .

35a

The delays caused by appeals of such denied permis-

sive intervention motions would be readily illustrated by

the instant case, but for further error. On February 8,

1980, the trial court denied intervention, and on March

5, 1980, the attorneys filed a notice of appeal on behalf

of “the plaintiffs and the proposed interveners.” Subse-

quently, on May 23, 1980, the original parties reached

a settlement agreement covering all claims other than

Western’s hiring practices (which are involved here). On

September 19, 1980, the district court entered an order

approving this agreement and on December 30, 1981, fol-

lowing implementation of the agreement, the district

court, by another order, dismissed all relevant parts of

the suit with prejudice except those involved here.

I believe that it was manifestly incorrect for the par-

ties to continue with the proceedings below, while an or-

der of the district court affecting the parties was on ap-

peal before this court. The appeal effectively denied the

court below of any jurisdiction in this matter. Arm-

strong v. Board of School Directors, 616 F.2d 305, 327

(7th Cir. 1980) ; Lewis v. Tobacco Workers International

Union, 577 F.2d 1135, 1139 (4th Cir. 1978). The par-

18 The instant case is similar in key aspects to Zimmer v. Me-

Keithen, 467 F.2d 1381 (5th Cir. 1973), where, after the notice of

appeal from a reapportionment order was filed, the district court

attempted to change the order to encompass an alternative reap-

portionment plan. A panel of the Fifth Circuit refused to consider

the revised plan, calling it a nullity. Jd. at 1382. The Fifth Circuit,

en banc, reversed the panel on the merits of the first plan, 485 F.2d

1297 (5th Cir. 1973), and the Supreme Court affirmed the en banc

court, sub nom., East Carroll Parrish School Board v. Marshall, 424

U.S. 636, 638, n. 4, 96 S.Ct. 1082, 1084, n. 4, 47 L.Ed. 296 (1976).

Significantly, the en banc court, as affirmed by the Supreme Court,

reversed the district court, yet refused to consider the revised plan

even though this could have obviated the need for subsequent judi-

cial review. In all events, had the second plan had any effect, the

question before both the en banc court and the Supreme Court

would have been different. It thus appears that the Supreme Court

has at least by implication acknowledged that a district court loses

jurisdiction to effect settlement after notice of appeal has been filed.

ties and the district court proceeded with the settlement

under the impression that it would be possible to con-

sider the order on the intervention motion as an appeal-

able order separate from the rest of the case. The fallacy

in that reasoning is readily apparent. One of the trial

court’s principal grounds for denying the intervention

motion was its stated reason that allowing intervention

would interfere with carrying out that part of its de-

cision which this court had affirmed. When the parties

settled that part of the case, the factual setting before

the district court no longer existed and the facts upon

which this court now bases its decision no longer exist.

So we are writing at least in part in a vacuum, giving

our opinion upon a set of facts which we are aware do

not exist. That alone is sufficient reason to dismiss this

See Mills v. Green, 159 U.S. 651, 16 S.Ct. 132,

40 L.Ed. 293 (1895). The entire litigation was inextri-

cably linked, and it is impossible for us to decide a part

of the case while at the same time the district court is

deciding another part of the case upon which our part de-

pends, without the risk of procedural chaos. In re Com-

bined Metals Reduction Company, 577 F.2d 179, 200-201

(9th Cir. 1977). There is bound to be at least serious

doubt as to the validity of the orders of the district

court approving the settlement and dismissing the action

except the parts of the case now under review. This

doubt is needless and would not have arisen had we

followed the simple rule of dismissing appeais in which

the sole question for review is the abuse of discretion

of the district court in denying intervention under FRCP

24(b) and in which the intervenors have, as here, a way

to get all the relief sought in another forum.

From the preceding discussion in both the majority

and dissenting opinions, it is obvious that this litigation

has turned into an extraordinarily complex exercise in

juci-‘al theory. The trial court’s decision to deny inter-

vention because it would unnecessarily delay this litiga-

tion has proved highly prophetic. The most responsible

decision for this court would be to dismiss this appeal.

87a

V

An entirely separate reason to dismiss the appeal is

to look at the case from the defendant's viewpoint. After

a prolonged and strenuous trial and appeal, it was de-

termined that the applicants for employment at Western

were not a proper class, and the judgment of the district

court that Western had discriminated in terms and con-

ditions of hiring was vacated. This judgment was made

final by the Supreme Court’s denial of certiorari in the

case. At that point, Western had won that aspect of the

litigation, although it had lost others. Now, by way of

intervention, Western has lost the case it had just won

if the district court’s initial findings are reinstated, as

they probably will be.

With all deference to the opinion of my colleagues, I

think the majority decision amounts to no less than a

simple failure by this court to follow Rodriguez. Of what

use is binding precedent that a man may not litigate for

a class to which he does not belong if it may be avoided

by the simple artifice of intervention after an adverse

decision?

88a

JUDGMENT

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 80-1279

OLLIE T Hitt, JOHN W. WARD, CHARLES R. MERRI-

WETHER, JR., EDWARD A. MINATEE, MINNIE MARBLE,

Mary E. CARTER, Individually and on behalf of all

other persons similarly situated,

Appellants,

vs.

WESTERN ELECTRIC COMPANY, INC.,

Appellee,

EQUAL EMPLOYMENT ADVISORY COUNCIL,

Amicus Curiae.

Appeal from the United States District Court for the

Eastern District of Virginia

This cause came on to be heard on the record from the

United States District Court for the Eastern District of

Virginia, and was argued by counsel.

On consideration whereof, It is now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court appealed from, in this cause, be, and the same

is hereby, vacate! and this case is remanded to the United

States District Court for the Eastern District of Virginia

at Alexandria for further proceedings consistent with the

opinion of this court filed herewith.

Filed Mar. 1, 1982

/s/ Wiliam K. Slate II

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 80-1279

OLLIE T. HILL, et al.,

Appellants,

WESTERN ELECTRIC COMPANY, INC.,

Appellee.

EQUAL EMPLOYMENT ADvIsoRY COUNCIL,

Amicus Curiae.

ORDER

Upen consideration of the appellee’s petition for re-

hearing, by counsel,

IT IS ORDERED that the petition for rehearing is

DENIED.

Entered at the direction of Judge Phillips. Judge Rus-

sell, Judge Widener, Judge Hall and Judge Chapman dis-

sent from the denial of rehearing en banc.

For the Court,

/s/ William K. Slate, II

Clerk

Filed May 28, 1982]

40a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

Civil Action No. 75-375-A

OLLI T. HILL, et al.,

Plaintiffs,

V.

WESTERN ELEcTRIC Co., INC.,

Defendant.

TRANSCRIPT OF PROCEEDINGS

Alexandria, Virginia

February 8, 1980

Before: THE HONORABLE ALBERT V. BRYAN, IR.,

United States District Judge

THE COURT: I’m not satisfied that the terms of the

remand preclude the Court from allowing intervention at

this stage. And I believe that it’s discretionary.

But I’m going to exercise that discretion in favor of

denying the application for intervention for these reasons:

First, this action was filed in May of 1975. It was

tried in February of 1976 on the question of liability.

The question of liability was decided in April of 76.

And while there was some—there was a subsequent

decree on the carrying out of the damage aspect of it and

the fixing of attorneys’ fees, the liability adjudication was

stayed pending procedures in the Court of Appeals and

subsequently in an application for certiorari.

4la

818 35 :

1 ue

Ss —

2577111141115

I want to get this case on its way. And that part of the

Court of Appeals’ decision can be carried out forthwith.

42a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

Civil Action No. 75-375-A

OLLIE T. HILL, et al.,

Plaintiffs,

v.

WESTERN ELEcTRIC Co., INC.,

Defendant.

ORDER

For the reasons stated from the bench, the Motion for

Leave to Intervene as Parties Plaintiff and the Motion to

Amend the Complaint (Or, in the Alternative, to Obtain

Joinder of New Plaintiffs) are denied.

/s/ Albert V. Bryan, Jr.

United States District Judge

Alexandria, Virginia

February 8th, 1980

43a

U.S. CONSTITUTION art. 3, § 2

SECTION 2. The judicial Power shall extend to all Cases,

in Law and Equity, arisin~ under this Constitution, the

Laws of the United States, and Treaties made, or which

shall be made, under their Authority;—to all Cases

affecting Ambassadors, other public Ministers and

Consuls ;—to all Cases of admiralty and maritime Juris-

diction;—to Controversies to which the United States

shall be a Party; to Controversies between two or more

States ;—between a State and Citizens of another State

between Citizens of different States;—between Citizens

of the same State claiming Lands under Grants of dif-

ferent States, and between a State, or the Citizens there-

of, and foreign States, Citizens or Subjects.

44a

FEDERAL RULES OF CIVIL PROCEDURE

Rule 23. Class Actions

(a) Prerequisites to a Class Action. One or more

members of a class may sue or be sued as representative

parties on behalf of all only if (1) the class is so numer-

ous that joinder of all members is impracticable, (2)

there are questions of law or fact common to the class,

(3) the claims or defenses of the representative parties

are typical of the claims or defenses of the class, and

(4) the representative parties will fairly and adequately

protect the interests of the class.

Rule 24. Intervention

(b) Permissive Intervention. Upon timely application

anyone may be permitted to intervene in an action: (1)

when a statute of the United States confers a conditional

right to intervene; or (2) when an applicant’s claim or

defense and the main action have a question of law or

fact in common. When a party to an action relies for

ground of claim or defense upon any statute or executive

order administered by a federal or state governmental

officer or agency or upon any regulation, order, require-

ment, or agreement issued or made pursuant to the

statute or executive order, the officer or agency upon

timely application may be permitted to intervene in the

action. In exercising its discretion the court shall consider

whether the intervention will unduly delay or prejudice

the adjudication of the rights of the original parties.