dissenting.
The Romasanta suit out of which the present issue arose required five years for a resolution to be reached. When that suit reached a critical point insofar as petitioner’s interests were concerned more than three years ago, it in my opinion was incumbent upon her then to take immediate affirmative steps to protect her interests if she wanted to take advantage of this lawsuit as a forum for her claims.
In my opinion Judge Perry clearly acted properly when he denied the motion to intervene as untimely:
THE COURT: Well, in my judgment, gentlemen, this is five years now this has been in litigation, and this lady has not seen fit to come in here and seek relief from this Court in any way during that period of time, and litigation must end. I must deny this motion. Of course, this is an appealable order itself, and if I am in error then the Court of Appeals can reverse me and we will grant a hearing, but in my judgment this is too late to come in.
Since I agree with Judge Perry and disagree with the majority finding that Judge Perry abused his discretion, I respectfully dissent.
Questions of timeliness are peculiarly appropriate for determination by the trial court, and it is for that reason that the appropriate standard for review is to determine whether there has been an abuse of discretion. The United States Supreme Court, in NAACP v. New York, 413 U.S. 345, 93 S.Ct. 2591, 37 L.Ed.2d 648 (1973), in affirming the lower court’s denial of a motion to intervene on the basis of timeliness, set forth the standard by which this Court must review Judge Perry’s ruling as follows (413 U.S. at 365-66, 93 S.Ct. at 2602-2603):
Intervention in a federal court suit is governed by Fed.Rule Civ.Proc. 24. Whether intervention be claimed of right or as permissive, it is at once apparent, from the initial words of both Rule 24(a) and Rule 24(b) that the application must be “timely.” If it is untimely, intervention must be denied. Thus the court where the action is pending must first be satisfied as to timeliness. Although the point to which the suit has progressed is one factor in the determination of timeliness, it is not solely dispositive. 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 court’s ruling will not be disturbed on review. (Footnotes omitted.)
This same standard has consistently been applied in cases involving Title VII of the Civil Rights Act. E. g., EEOC v. United Air Lines, Inc., 515 F.2d 946 (7th Cir. 1975); Black v. Central Motor Lines, Inc., 500 F.2d 407 (4th Cir. 1974).
In NAACP, the Supreme Court upheld the district court’s determination that the motion to intervene was untimely, even though it was filed only seventeen days after the would-be intervenors allegedly became aware of the suit, stating that “it was incumbent upon the appellants, at that stage of the proceedings, [a critical stage] to take immediate affirmative steps to protect their interests . . . 413 U.S. at 367, 93 S.Ct. at 2604.
In EEOC, supra, this court denied a motion to intervene as untimely in a situation much less extreme than the instant case. A *921pattern and practice suit was brought in April 1973, under Title VII of the Civil Rights Act, alleging discrimination against black and female employees of United Air Lines. The complaint was amended in February 1974 to include allegations of discrimination against Spanish-surnamed and Asian-American employees. When two organizations representing these latter groups attempted to intervene in July 1975, this Court affirmed the denial of intervention as untimely, even though the trial had not yet begun, because the intervenors had offered no excuse for waiting 5 months after the complaint was amended and their interest in the action first created. See also SEC v. Bloomberg, 299 F.2d 315 (1st Cir. 1962); Hoots v. Pennsylvania, 495 F.2d 1095, 1097 (3d Cir. 1974), cert. denied, 419 U.S. 884, 95 S.Ct. 150, 42 L.Ed.2d 124; and Westward Coach Manufacturing Company, Inc. v. Ford Motor Co., 388 F.2d 627, 635 (7th Cir. 1968), cert. denied, 392 U.S. 927, 88 S.Ct. 2286, 20 L.Ed.2d 1386.
In a class action situation, the determination of when intervention is first appropriate relates to the question of adequacy of representation. In a true class action, it is unnecessary for an unnamed class member to intervene as long as his interests are being protected by his class representatives. In Alleghany Corporation v. Kirby, 344 F.2d 571 (2d Cir. 1965), cert. granted, 381 U.S. 933, 85 S.Ct. 1772, 14 L.Ed.2d 698, cert. dismissed as improvidently granted, 384 U.S. 28, 86 S.Ct. 1250, 16 L.Ed.2d 345 (1966), where the Second Circuit denied a “last-minute” attempt at intervention by shareholders in a derivative suit to set aside a settlement on behalf of their corporation, the court explained the connection between timeliness and adequate representation (344 F.2d at 574):
As we see it, the timeliness requirement, specifically articulated in Rule 24(a), is related to the question whether the shareholders’ interests are or may be inadequately represented, for whether an application to intervene is prompt or tardy also turns on when the interests of the proposed intervenors were no long properly represented.
When petitioner’s application for intervention is viewed in the light of these cases, it appears clear to me that the motion was untimely. Petitioner admits knowledge of the class action denial in Romasanta in 1972 and yet offers no persuasive reason for her failure to petition to intervene then. Once the class was denied, and the suit proceeded as an individual action, she had no reason to believe her interests were being represented or protected by others. This was particularly true since the class action denial had the effect of excluding from the case all those who, like petitioner, had not protested the no-marriage rule. There was no longer anyone similarly situated to petitioner in the ease.
Petitioner admits knowledge of the course of the Sprogis (or related) litigation from the very start (i. e., September 1968, the time of her alleged discharge). Yet she made no attempt to intervene in Sprogis to appeal from the denial of class action in 1972 or from the final order in 1974.1
But instead, petitioner, with claimed knowledge of the pending lawsuits concerning the no-marriage rule, did nothing and waited seven years to identify herself as one who sought relief. Petitioner now wants to start this case all over again— three years after Romasanta was declared not to be a class action, after many others were permitted to intervene, and after extensive negotiations in which the parties were finally able to resolve the issues in this case.
Consistent with petitioner’s unhurried conduct is the fact that her motion to intervene violates the only procedural rule under which her motion can be brought, i. e., Fed.R.Civ.P. 59(e). Rule 59(e) provides that *922“[a] motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.” Petitioner’s motion to intervene was clearly a motion to alter or amend the judgment to add an additional party. It was served on October 17 and heard on October 21, 1975, all well beyond ten days after the entry of the final order on October 3.
It is important to note that had she sought intervention immediately after the denial of class status, and her intervention had been denied, the intervention issue would have been before this court three years ago. Furthermore, assuming that her intervention had been denied because of petitioner’s failure to protest the no-marriage rule — the requirement which was the basis of the court’s holding that this action lacked the requisite numerosity to proceed as a class action — then that issue would have been before this court and decided three years ago. Instead, petitioner chose to sit back and allow others to assume the costs and risks in prosecuting their individual actions, and now she attempts to revive her dead claim through another suit which after years of legal argument and negotiation was finally settled to the satisfaction of all parties.
When a class action is denied, former putative class members may not ignore this fact and continue on the assumption the suit is a class action (“spurious” or otherwise), as does petitioner. The denial of class status is a critical point which puts putative class members on notice that they must act to protect their rights. The tolling procedure established by the Supreme Court in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), would have no meaning without its corollary requirement that as soon as the class is decertified, former class members who want relief must “make timely motions to intervene” (414 U.S. at 553, 94 S.Ct. 756).
Finally, it should be noted that the timeliness requirements of Rule 24 have been interpreted more strictly by the courts after judgment, where absent very unusual circumstances intervention is not permitted. United States v. Blue Chip Stamp Co., 272 F.Supp. 432, 436 (C.D.Calif.1967), affirmed per curiam sub nom. Thrifty Shoppers Scrip Co. v. United States, 389 U.S. 580, 88 S.Ct. 693, 19 L.Ed.2d 791 (1968):
The requirement of timeliness is not without foundation. The interest in expeditious administration of justice does not permit litigation interminably protracted through continuous reopening. A motion to intervene after entry of the decree should therefore be denied in other than the most unusual circumstances.
Accord, Chase Manhattan Bank v. Corporation Hotelera de Puerto Rico, 516 F.2d 1047, 1050 (1st Cir. 1975) (per curiam); Pennsylvania v. Rizzo, 66 F.R.D. 598, 600 (E.D.Pa. 1975); 3B Moore’s Federal Practice § 24.-13[1] (1975 ed.); 7A Wright & Miller, Federal Practice and Procedure § 1916, at 579-80 (1972).
Since, in my opinion, the timeliness issue is dispositive of this case, I have not deemed it necessary to advert to the other issues raised on this appeal.
. Petitioner argues that she relied upon the parties in Romasanta to appeal the class action decision. But ALPA, the party responsible for bringing both the Sprogis and Romasanta actions, did not appeal the class denial in Sprogis (nor did anyone else), so there appears to be no reason for petitioner’s reliance on the same parties’ appealing the class decision in Romasanta.