APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil Action No. 74-258).
Aldisert, Forman and Adams, Circuit Judges.
The Fire Officers Union and several individual firemen and officers filed two appeals, here consolidated, from a proceeding which challenged the employment practices of the Philadelphia Fire Department as racially discriminatory. No. 75-1332 seeks review of the district court's denial of appellants' motion to intervene of right pursuant to F.R. Civ. P. 24(a)(2). No. 75-1236 seeks review on the merits of the district court's orders requiring institution of new written promotion examinations and imposing interim minority promotion quotas. We affirm the denial of intervention at No. 75-1332 on the ground that the district court did not abuse its discretion in concluding that appellants' motions to intervene were untimely. We dismiss the appeal at No. 75-1236 on the ground that only a party of record in the district court may appeal.
The genesis of these proceedings was a class action complaint filed January 31, 1974, by Club Valiants, Inc., an organization of black Philadelphia firefighters, by the Commonwealth of Pennsylvania, and by certain individual black firefighters, alleging that the employment practices of the Philadelphia Fire Department were racially discriminatory in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Civil Rights Acts of 1870 and 1871, 42 U.S.C. §§ 1981 and 1983, and the Thirteenth and Fourteenth Amendments to the United States Constitution. The complaint named as defendants the Mayor and Fire Commissioner of Philadelphia, as well as various other city officials responsible for formulation and implementation of the Fire Department's employment practices. Plaintiffs requested extensive equitable relief, including the institution of interim hiring and promotion quotas as remedies for discrimination.
Extensive pretrial activity followed. After discovery and the disposition of several motions, the district court held an evidentiary hearing on plaintiffs' motion for a preliminary injunction with respect to hiring. On July 26, 1974 -- after eight days of testimony -- the court granted the motion finding that hiring discrimination existed and that its continuance would result in irreparable harm to the plaintiffs. The court ordered defendants to develop racially neutral selection procedures; until such procedures were implemented, the defendants were preliminarily enjoined from hiring any new firefighters unless the hiring was from the current eligibility list in the ratio of one qualified minority for every two qualified whites. On August 5 the court entered an order directing that all discovery be completed by November 1, establishing dates for filing of pretrial memoranda and exchange of documents, and setting December 2 as the date for final hearing.
Discovery was concluded in early November. Later that month plaintiffs filed their pretrial memorandum, but the final hearing scheduled for December 2 was continued and a series of settlement conferences were held instead. The parties resolved the claims of the individual plaintiffs but other issues, including the question of promotions, could not be resolved. During the settlement conferences, the defendants informed the court that, because of a new fourth platoon in the Philadelphia Fire Department, a number of promotions had to be made before the end of the year. Plaintiffs filed a motion for an injunction pendente lite requesting that these promotions be enjoined unless a certain percentage of those promoted were minorities. On December 27, 1974, the district court granted that motion and entered an order specifying the racial composition of promotions to be made on December 30: 1 of 5 promoted to Deputy Chief would be a qualified minority; 2 of 15 promoted to Battalion Chief would be qualified minorities; 3 of 15 promoted to Captain would be qualified minorities; and 8 of 53 promoted to Lieutenant would be qualified minorities. The promotions were made as ordered. The final hearing was rescheduled for January 7, 1975.
On December 30 several individual white firemen on the Lieutenant promotion list moved to intervene. The Fire Officers Union and several individual officers on various promotion lists moved to intervene on January 6. Local Rule 36 of the Eastern District of Pennsylvania requires notice of five business days for all contested motions. Because the proposed intervenors' original motions did not conform to that rule, they filed a joint amended motion on January 23 seeking intervention of right pursuant to F.R. Civ. P. 24(a).
The final hearing took place as scheduled on January 7. Individual claims were formally settled by stipulation. The parties also stipulated to the introduction of evidence and to the testimony certain witnesses would give if called. The court made findings of fact and conclusions of law and entered a final order disposing of all unresolved issues. The final order provided relief in two primary areas, hiring and promotion. Defendants were ordered to develop and implement valid, racially neutral tests and procedures for hiring and promotion. In the interim, the court enjoined defendants from hiring or promoting unless certain quotas were fulfilled. New firefighters were to be hired from the current eligibility list in the ratio of one qualified minority for every two qualified whites. At least 15 per cent of the firefighters promoted to the ranks of Lieutenant and Captain were to be eligible minorities. Two qualified minorities were to be promoted to Battalion Chief when promotions to that rank were next made; one qualified minority was to be promoted to Deputy Chief when promotions to that rank were next made. The final order also treated the issue of assignments within the Fire Department; awarded costs and attorneys fees; and ordered periodic reporting by the defendants detailing the implementation of the order.
On February 5, the proposed intervenors filed an appeal on the merits from the promotion aspects of the district court's orders (No. 75-1236), fearing that their appeal might be untimely if they waited for the court to rule on their intervention motions. On March 5 the court denied their motions; the proposed intervenors filed their appeal from that denial on April 2 (No. 75-1332). The two appeals have been consolidated.
Appellants have asserted a right to intervene under F.R. Civ. P. 24(a)(2). "When an absolute right to intervene in a lawsuit is claimed, and the claim is rejected, the order denying intervention is considered final and appealable." Philadelphia Electric Co. v. Westinghouse Electric Corp., 308 F.2d 856, 859 (3d Cir. 1962), cert. denied, 372 U.S. 936, 9 L. Ed. 2d 767, 83 S. Ct. 883 (1963). We do not follow the older rule which made appealability turn on whether the appellant had, in fact, a right to intervene. "Since [such a rule] makes appealability turn on the merits, it is not a very effective or useful limitation of appellate jurisdiction; the propriety of the denial by the district judge must be examined before the appellate court knows whether it has jurisdiction, and the only consequence of the restriction on appealability is that on finding the district judge was right, it will dismiss the appeal rather than affirm." Levin v. Ruby Trading Corp., 333 F.2d 592, 594 (2d Cir. 1964) (Friendly, J.) (quoted in 7A C. WRIGHT & A. MILLER, FEDERAL PRACTICE and PROCEDURE § 1923, at 627 (1972)). It is sufficient that intervention of right was sought and denied to render the denial appealable.
Rule 24(a)(2) F.R. Civ. P. provides:
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
The question whether appellants were entitled to intervene of right depended on their satisfying the district court in three respects: first, that they had a sufficient interest in the matter, and that their interest would be affected by the disposition; second, that their interest was not adequately represented by the existing parties; and third, that their application was timely. Although appellees have argued to the contrary (Appellees' Brief at 28), we may assume that appellants satisfied the first test, the interest test. Appellants assert that they also satisfied the other tests: "Appellants submit that they acted ...