[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 07, 2002
No. 99-12938 THOMAS K. KAHN
CLERK
D. C. Docket No. 75-03096-CV-SH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CITY OF MIAMI, FRATERNAL ORDER OF POLICE LODGE #20,
PROFESSIONAL FIREFIGHTERS OF MIAMI, LOCAL 587,
INTERNATIONAL,
Defendants,
MIAMI COMMUNITY POLICE BENEVOLENT
ASSOCIATION, a.k.a. MCPBA,
Appellants.
Appeal from the United States District Court
for the Southern District of Florida
(January 7, 2002)
Before TJOFLAT, HILL and POLITZ*, Circuit Judges.
TJOFLAT, Circuit Judge:
The Miami Community Police Benevolent Association appeals a district
court order denying its motion for leave to intervene as of right, pursuant to
Rule 24(a)(2) of the Federal Rules of Civil Procedure. The district court
denied the motion on the ground that the association’s interests were
adequately represented by the parties in the case. We find no error in the
court’s denial of the motion on that ground and therefore affirm its ruling.
I.
This lawsuit began on December 29, 1975, when the United States filed
a complaint against the City of Miami (“City”), various city officials, and the
_____________________________________________
*Honorable Henry A. Politz, U.S. Circuit Judge for the Fifth Circuit, sitting by designation.
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Fraternal Order of Police (“FOP”)1, alleging violations of Title VII of the Civil
Rights Act of 1964, the Fourteenth Amendment, and 42 U.S.C. §§ 1981, 1983.
Specifically, the United States alleged that the defendants pursued policies and
practices discriminating against black, Spanish-surnamed, and female
individuals with respect to employment opportunities and conditions of
employment with the City.2 The complaint sought temporary and permanent
injunctive relief. See United States v. City of Miami, 664 F.2d 435, 436 (5th
Cir. 1981) (en banc).
On December 30, 1975, the day after the complaint was filed, the City
filed an answer denying the charges of discrimination. A month later the FOP
likewise filed an answer denying the allegations of the complaint and raising
thirteen affirmative defenses. On February 18, 1976, the United States and the
City presented the court with a proposed consent decree. The court entered the
1
The United States also named as a defendant the Miami Police Benevolent Association
(“PBA”), an organization altogether different from the movant in this case, the Miami
Community Police Benevolent Association. The PBA was dismissed as a party, however, by the
Fifth Circuit, which “could discern no reason why the PBA had been joined as a defendant, nor
why it should be enjoined by the court.” See United States v. City of Miami, 664 F.2d 435, 437-
38 (5th Cir. 1981) (en banc).
2
The complaint alleged discriminatory practices in various city departments, including
the police department. For some reason, the Government joined as a party defendant the police
union, the FOP. Other unions representing city employees were either not named defendants or
were denied leave to intervene.
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decree over the FOP’s objections. Nine days later, the FOP filed a motion to
vacate the decree. After hearing argument on the motion, the court vacated the
decree on April 2, 1976, stating that it had been “improvidently signed”
because some of its provisions violated the collective bargaining agreement
between the City and the FOP.
After a series of unsuccessful negotiations with the FOP, the United
States and the City moved the district court on November 17, 1976, to reinstate
the consent decree. The FOP objected to the entry of the decree, contending
that, if implemented, it would discriminate against whites, institute a quota
system, and violate the union contract because it would permit promotions
without following the civil service testing procedure. In response, the United
States and the City made a few modifications to the decree, and, even though
the FOP still opposed its entry, the district court, on March 29, 1977, approved
the decree, as modified (“1977 Consent Decree”), and entered it. The FOP
appealed, and a panel of the Fifth Circuit, our predecessor, affirmed. See
United States v. City of Miami, 614 F.2d 1322 (5th Cir. 1980).
On rehearing en banc, the court remanded the case with the instruction
that the district court determine “whether the United States has the right to
claim any relief concerning police promotion” and modify the decree to
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provide that it “does not affect the promotion of members of the Police
Department.” City of Miami, 664 F.2d at 448. On remand, and following a
period of negotiations, the FOP relented and agreed to the re-entry of the 1977
Consent Decree.
Over time, the demographic makeup of the police department changed
dramatically, and, in March 1999, the United States moved the district court to
enter an order terminating the 1977 Consent Decree “as to all departments,
agencies, and positions of the defendant City of Miami,” and implementing a
provision it had proposed concerning “sworn classified positions in the police
department . . . and the entry-level position of public service aide.” With
regard to these latter positions, the United States had discovered that the
selection procedures the City had been using had a “significant adverse impact
against black test-takers” with potential “shortfalls of 18 black male and 14
black female hires.” Therefore, the United States urged the court to “enter a[n]
. . . order which directs the City to continue the development of lawful
selection procedures, upon completion of which to the Court’s satisfaction the
order shall expire.” The City did not oppose the United States’ motion, and the
FOP essentially supported it.3
3
The FOP took no position with regard to the initial hiring of police officers because
“initial candidates for employment are not part of the bargaining unit represented by the FOP.”
5
Consequently, on May 4, 1999, the district court entered an order
“superseding the 1977 Consent Decree with respect to public service aide and
sworn classified positions in the police department, and terminating the 1977
Consent Decree with respect to all other city departments.” After reviewing
the “United States’ motion and the entire record in this matter,” the court found
“that the basic objectives of the consent decree have been achieved, the City
has acted in good faith compliance with the decree, and the vestiges of past
discriminatory practices against blacks, Hispanics, and women have been
eliminated to the extent practicable.” Nonetheless, with respect to the public
service aide and sworn classified positions (i.e., police officer, sergeant,
lieutenant, and captain), the court ordered the City to: (1) continue developing
lawful selection procedures for screening and hiring candidates for these
positions, (2) report to the court every four months on the development of
these selection devices, (3) allow the United States’ expert in test development
to examine and review any selection device proposals, (4) mark all material
related to selection development as “confidential test material” prior to
disclosing it to the expert, (5) provide assistance to applicants to prepare for
any selection exams given, (6) develop appropriate recruitment procedures, (7)
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maintain adequate records, and (8) “attempt in good faith to resolve informally
any dispute [with the United States] which [may] arise[].”
Over two months after the district court entered this order, the Miami
Community Police Benevolent Association (“MCPBA”) moved to intervene as
of right, pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure,
arguing that its interests were not adequately represented by the parties to the
case.4 Specifically, the MCPBA asserted that “[a]lthough a majority of the
MCPBA membership are also FOP members,” the FOP cannot “adequately
represent their interests as FOP’s position is diabolically (sic) opposed to that
of [the MCPBA].” The MCPBA conceded that positive steps had been taken
to eliminate the discriminatory practices that had given rise to the lawsuit but
contended that such steps were “not consistent or adequate with regard to
blacks and women throughout all levels of the police department, nor FOP
leadership.” Indeed, the MCPBA contended, “[t]here are important units
within the police department which have no female representation, such as
‘auto theft’ and ‘economic crimes.’” Moreover, the MCPBA claimed that the
FOP had not effectively communicated the developments of the consent decree
4
In the early stages of this litigation, soon after the United States filed the complaint, the
MCPBA sought to intervene as a co-plaintiff. The district court, however, denied the motion on
April 2, 1976.
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to its members. The MCPBA made no mention of the ability of the United
States to represent adequately its members’ interests.
The district court denied the MCPBA’s motion after finding that “the
purported interests of [its] members, which the organization seeks to protect
through intervention, are adequately represented by the existing parties.” This
appeal followed.
II.
This circuit’s “anomalous rule” gives us provisional jurisdiction to
determine whether the district court erred in denying a motion to intervene
under Rule 24. Chiles v. Thornburgh, 865 F.2d 1197, 1212 (11th Cir. 1989).
If we find that the district court was correct, then “our jurisdiction evaporates
because the proper denial of leave to intervene is not a final decision, and we
must dismiss [the] appeal[] for want of jurisdiction.” Id. (first alteration in
original) (quoting E.E.O.C. v. Eastern Airlines, Inc., 736 F.2d 635, 637 (11th
Cir. 1984)). If we find, however, that the district court erred in denying the
motion to intervene, then we retain jurisdiction and must reverse. Id.
A party seeking to intervene as of right under Rule 24(a)(2) of the
Federal Rules of Civil Procedure5 must establish:
5
Rule 24(a) of the Federal Rules of Civil Procedure states in pertinent part:
Intervention of Right. Upon timely application anyone shall be permitted to
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(1) his application to intervene is timely; (2) he has an interest relating to
the property or transaction which is the subject of the action; (3) he is so
situated that disposition of the action, as a practical matter, may impede
or impair his ability to protect that interest; and (4) his interest is
represented inadequately by the existing parties to the suit.
Chiles, 865 F.2d at 1213. We review the district court’s denial of a motion to
intervene as of right de novo. Purcell v. BankAtlantic Fin. Corp., 85 F.3d
1508, 1512 (11th Cir. 1996).
In denying the MCPBA’s motion to intervene, the district court focused
entirely on the MCPBA’s failure to establish the fourth requirement for
intervention – that the MCPBA’s “interest is represented inadequately by the
existing parties to the suit.” Because we agree that the MCPBA failed to show
that its interest was not adequately represented by the parties, we limit our
discussion to this requirement.
The MCPBA must overcome a presumption – that it is adequately
represented – that arises “when applicants for intervention seek to achieve the
same objectives as an existing party in the case.” Meek v. Metropolitan Dade
County, Florida, 985 F.2d 1471, 1477 (11th Cir. 1993); Athens Lumber Co. v.
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 the applicant is so
situated that the disposition of the action may as a practical matter impair or
impede the applicant’s ability to protect that interest, unless the applicant’s
interest is adequately represented by existing parties.
9
FEC, 690 F.2d 1364, 1366 (11th Cir. 1982). Thus, in Athens Lumber, we
found that because both the machinists union and the Federal Election
Commission (“FEC”) sought to uphold the constitutionality of a provision of
the Federal Elections Campaign Act, their objectives were the same and the
union was adequately represented by the FEC. Athens Lumber, 690 F.2d at
1366-67. Moreover, in United States v. Georgia, 19 F.3d 1388 (11th Cir.
1994), we found that a county school board, charged by law to represent the
interests of the students, shared the same objective – to eliminate the
detrimental impact caused by desegregation – as a group of individuals
representing black students. Id. at 1394. We held, therefore, that the district
court properly denied the group’s motion to intervene in the case. Id.
We can discern no difference between the objectives that the United
States seeks to fulfill in this case and those of the MCPBA. Indeed, the
MCPBA submits that its concern in this case is “with [the] upward mobility of
blacks and females,” and concedes that the objective of the United States is to
end discrimination “for all minorities.” Nowhere does the MCPBA claim that
these two objectives are mutually exclusive, or that the United States, in
seeking the best “for all minorities,” has neglected or will neglect the needs of
blacks and women. Rather, from the instant the complaint was filed, the
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United States has sought to eliminate employment policies and practices that
discriminate against “black, Spanish-surnamed, and female individuals.” The
very goal of the most recent action the United States took in this case – the
motion for an order effectively superseding the 1977 Consent Decree – was to
protect blacks and females. In that motion, the United States moved to
terminate portions of the original 1977 Consent Decree only because, as the
district court properly observed, its “basic objectives . . . have been achieved,
the City has acted in good faith compliance with the decree, and the vestiges of
past discriminatory practices against blacks, Hispanics, and women have been
eliminated to the extent practicable.” With respect to certain police officer and
public service aide positions, the United States even sought to supersede the
1977 Consent Decree with a decree providing better selection devices to
protect the very people the MCPBA seeks to protect – blacks and women.
Because the objectives the MCPBA seeks to achieve in this case are
goals shared by the United States,6 the MCPBA’s members are adequately
6
In addition, the MCPBA fails to show that its objectives are different from those of the
FOP. Although the MCPBA argues that the FOP’s objectives are “diabolically (sic) opposed” to
its own, it offers little or no evidence for support. In its motion to intervene before the district
court and in its brief to this court, the MCPBA merely states that, “with regard to blacks and
women,” the “demographic” changes made since 1977 have not been “consistent or adequate.”
Besides this unsupported comment and a blank citation to an amicus brief that “the history of
this case shows that the primary goal of the [FOP] has not been the advancement of the interests
of African-American or female officers through the correction of past discrimination,” the
MCPBA never compares or contrasts its objectives with those of the FOP to show that they are
11
represented. Accordingly, we hold that the district court did not err in denying
the MCPBA’s motion to intervene.
AFFIRMED.
different. Indeed, the MCPBA has presumably been quite satisfied with the FOP’s objectives for
the past twenty years or so, having moved the district court for leave to intervene only after the
court entered its order superseding the 1977 Consent Decree. Moreover, the MCPBA concedes
that most of its members are also members of the FOP, but never explains why, if this is true, the
FOP’s objectives are so vastly different from the MCPBA’s, nor why its members would choose
to be a part of two organizations with diametrically opposed objectives.
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