On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 75-0162). Gerald J. Weber, District Judge.
Before ALDISERT, Chief Judge, SLOVITER, Circuit Judge, and STAPLETON, District Judge.*fn*
MEMORANDUM OPINION OF THE COURT
Hugh P. Mulvey, Jr. appeals the district court's denial of his motion to intervene in an action challenging the hiring and promotion practices of the Pittsburgh Bureau of Police. This action was filed on February 6, 1975 by the Commonwealth of Pennsylvania together with the NAACP and other groups and individuals against the City of Pittsburgh and its officials alleging racial and sexual discrimination in police hiring and promotion in violation of, inter alia, 42 U.S.C. §§ 1981 and 1983 and the Thirteenth and Fourteenth Amendments of the Constitution. On December 5, 1975, the district court granted a preliminary injunction requiring, inter alia, that new Pittsburgh police officers be appointed in groups of four, including one white male, one white female, one black male and one black female, from the lists of qualified applicants who passed the 1975 written examinations. Pennsylvania v. Flaherty, 404 F. Supp. 1022, 1031 (W.D. Pa. 1975). Although denominated "interim" relief, the court stated,
We cannot, with the present number of vacancies to be filled, overcome the effect of past disproportion in short order, but we can make a beginning and, with the passage of time, hope to see this imbalance reduced as the older members of the force pass into retirement and the new appointees begin to fill the ranks.
During the intervening ten years, there have been various motions and applications by the parties addressed to the relief ordered. For example, in 1979, the City of Pittsburgh requested and was granted a temporary modification when one of the eligibility lists of candidates for police officers was exhausted. The Fraternal Order of Police, which was an existing intervenor, filed a motion in early 1984 to terminate preferential affirmative promotions previously ordered. The district court denied the motion, and this court affirmed without prejudice to presentation of a petition alleging changed circumstances and/or law.
On August 22, 1984, almost ten years after the original injunction, Mulvey filed his motion to intervene on behalf of a proposed class of white males who were eligible to become police officers and who would have been appointed but for the preliminary injunction. Mulvey sought to challenge the continued validity and necessity of the injunction. The district court held that the motion was untimely, noting that the case has a long history and that the issue Mulvey wants to raise was already raised and considered earlier in these lengthly proceedings. The district court noted that Mulvey's motion did not allege "changes in circumstances or law which affect the basis of the original order." The court also rejected Mulvey's argument that because the preliminary injunction was intended to be temporary, he should be allowed to intervene, pointing out that it had expressly recognized in its 1975 opinion that the remedy would require a long period of time, 404 F. Supp. at 1029.
On appeal, Mulvey contends that he has a right to intervene under Fed. R. Civ. P. 24(a)(2), which provides that:
Upon timely application anyone shall be permitted to intervene in an action . . . when an 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.
He argues, in the alternative, that the district court abused its discretion in not permitting him to intervene under Fed. R. Civ. P. 24(b)(2). He further contends that the district court's summary denial of the motion was procedurally improper. Assuming that we will permit him to intervene, he requests, first, that we direct the district court to permit him to amend his motion, second, that we direct the district court to hold a hearing on his class action allegations, and third, that further consideration of the case involve a three-judge district court panel. We do not rule on these additional requests since we hold that the district court did not abuse its discretion in finding Mulvey's motion untimely.
Whether a motion to intervene is by right or by permission, it must be "timely". Fed. R. Civ. P. 24. In NAACP v. New York, 413 U.S. 345, 366 (1973), the Supreme Court stated,
Timeliness is to be determined from all the circumstances. and it is to be determined by the court in the exercise of its sound discretion; unless that discretion is abused, the ...