United States Court of Appeals
For the First Circuit
No. 00-1056
WINIFRED N. COTTER, ET AL.,
Plaintiffs, Appellees,
v.
MASSACHUSETTS ASSOCIATION OF MINORITY LAW ENFORCEMENT
OFFICERS,
DENNIS A. WHITE and HAROLD WHITE,
Proposed Intervenors, Appellants.
__________
CITY OF BOSTON, JAMES J. HARTNETT, JR.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Boudin, Stahl and Lipez,
Circuit Judges.
Rheba Rutkowski with whom Jonathan M. Albano, Bingham Dana
LLP, and Grace M. Jones, Lawyers Committee for Civil Rights
Under Law of the Boston Bar Association, were on brief for
proposed intervenors, appellants.
Michael C. McLaughlin with whom Law Offices of Michael C.
McLaughlin was on brief for plaintiffs, appellees.
July 17, 2000
BOUDIN, Circuit Judge. On May 21, 1999, Winifred
Cotter and seven other white officers of the Boston Police
Department brought an action under section 1983, 42 U.S.C. §
1983, alleging that plaintiffs' constitutional rights to equal
protection were violated by the promotion to sergeant of three
black officers of the Boston Police Department. The plaintiffs
and the three promoted officers all scored 84 on a promotional
exam administered in October 1996. The complaint alleged that
the three minority officers were promoted to sergeant for the
purpose of maintaining or increasing minority representation
among sergeants and that the eight plaintiffs were excluded from
promotion because they were white.
The complaint cited various police department documents
that plaintiffs say evidence a preoccupation with race in the
decision to promote the three minority officers and not the
plaintiffs, but defendants' answer disputes the inferences to be
drawn. The relief sought in the complaint is an order of the
court requiring that the plaintiffs be promoted to the sergeant
position, retroactive to December 12, 1997, that plaintiffs be
awarded damages, including but not limited to wages and benefits
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that would have been earned if promotion had occurred in a
timely manner, and that plaintiffs be awarded attorney's fees.
At this stage the merits are not before us. Rather,
the only issue presented on this appeal is whether the minority
officers who were promoted are entitled to intervene as of right
and whether intervention as of right should also be allowed to
the Massachusetts Association of Minority Law Enforcement
Officers ("MAMLEO"). The chronology of the case and history of
the intervention effort are as follows.
The complaint was amended on July 29, 1999, limiting
the defendants to the City of Boston and James Hartnett, Jr.,
who heads a Commonwealth office involved in personnel matters.
In August 1999, Hartnett moved for dismissal of the claims
against him on the ground that he was not responsible for the
promotion decision. When the district court denied the motion
to dismiss in October 1999, Cotter v. City of Boston, 73 F.
Supp. 2d 62 (D. Mass. 1999), Hartnett moved to certify to the
Massachusetts Supreme Judicial Court questions of law concerning
his authority. In this same period, two of the three black
officers promoted to sergeant--Dennis White and Harold White--
moved to intervene as of right as defendants in the case, as did
MAMLEO.
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The plaintiffs objected to the intervention, while the
defendants acquiesced in it. In a two-sentence margin order
entered on November 23, 1999, the district court denied the
intervention motion but gave MAMLEO the right to file amicus
briefs. Shortly thereafter, the district court set a discovery
deadline of September 30, 2000. On December 30, 1999, an appeal
was filed to this court by the two sergeants and MAMLEO. We
refused to grant a stay of proceedings in the district court but
expedited this appeal.
The denial of intervention claimed as of right is
immediately appealable, Flynn v. Hubbard, 782 F.2d 1084, 1086
(1st Cir. 1986), but plaintiffs object to our consideration of
the appeal, arguing that none of the would-be intervenors can
demonstrate Article III standing. The parties argue in their
briefs about whether intervenor-defendants are required to show
standing, an issue on which the Supreme Court has reserved
judgment, Diamond v. Charles, 476 U.S. 54, 68-69 (1986).
Fortunately, there is no need to grapple with this question
here.
Under Article III, a critical ingredient for standing
is that a party have a concrete stake in the outcome of a
dispute that is otherwise fit for resolution by the courts.
Valley Forge Christian College v. Americans United for
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Separation of Church and State, Inc., 454 U.S. 464, 472 (1982).
Consonantly, absent a statutory basis for intervention, an
applicant seeking to intervene as of right must show that
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.
Fed. R. Civ. P. 24(a)(2) (emphasis added). Thus, in the
ordinary case, an applicant who satisfies the "interest"
requirement of the intervention rule is almost always going to
have a sufficient stake in the controversy to satisfy Article
III as well. See Transamerica Ins. Co. v. South, 125 F.3d 392,
396 n.4 (7th Cir. 1997).
Standing is an immensely complicated set of doctrines,
Chemerinsky, Federal Jurisdiction § 2.3, at 56-57 (3d ed. 1999),
and it may be that there are unusual cases where an intervenor
could satisfy the interest requirement of Rule 24(a)(2) without
having the stake in the controversy needed to satisfy Article
III. Here, no peculiar circumstances of this kind are urged.
Accordingly, we see no reason to concern ourselves with the
abstract question whether an intervenor-defendant must show some
separate form of standing. We therefore turn to the question
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whether the applicants do satisfy the various requirements for
intervention as of right, prefacing this inquiry with a brief
reference to the standard of review.
On appeal from the denial of intervention as of right,
it is commonly said that review of the district court decision
is for "abuse of discretion," but this may be a misleading
phrase. Decisions on abstract issues of law are always reviewed
de novo; and the extent of deference on "law application" issues
tends to vary with the circumstances, see Ross-Simons of
Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16 (1st Cir.
1996). In all events, Rule 24(a)(2)'s explicit standards
"considerably restricts the [district] court's discretion." See
International Paper Co. v. Inhabitants of the Town of Jay,
Maine, 887 F.2d 338, 344 (1st Cir. 1989) (quoting Stringfellow
v. Concerned Neighbors in Action, 480 U.S. 370, 382 n.1 (1987)
(Brennan, J., concurring)).
The applicants for intervention cite to us authority
from other circuits that where (as here) the district judge
makes no findings and gives no reasons, review of denial of
intervention should be de novo, League of United Latin Am.
Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997); Edwards
v. City of Houston, 78 F.3d 983, 1000 (5th Cir. 1996) (en banc).
This court has not followed this approach, International Paper,
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887 F.2d at 343-44, because in many situations, the district
court's findings or reasons can be reasonably inferred. See
United States v. Owens, 167 F.3d 739, 743 (1st Cir.), cert.
denied, 120 S. Ct. 224 (1999). If they cannot be inferred, then
there is nothing to which to give deference.
Turning to the merits, the central question whether
what an applicant for intervention is claiming is "an interest
relating to the property or transaction which is the subject of
the action," Fed. R. Civ. P. 24(a)(2), is peculiarly difficult
to answer. The drafters may very well have had in mind a rather
concrete common law interest, such as an applicant's ownership
claim to a piece of property in dispute between two other
parties, but Supreme Court cases have expanded the notion
without setting any very firm limits. Daggett v. Commission on
Governmental Ethics & Election Practices, 172 F.3d 104, 110 (1st
Cir. 1999). The doctrinal "rules" are so general as to provide
very little help, see 7C Wright, Miller & Kane, Federal Practice
and Procedure § 1908 (2d ed. 1986 & Supp. 2000), and the
diversity of facts and interests that may be affected by
litigation today is so broad as to make any simple formula
difficult, if not impossible, to contrive.
Here, the question whether the two applicant sergeants
claim an "interest relating to the property or transaction which
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is the subject of the action" seems to us relatively easy to
answer. In substance, the complaint challenges the validity of
their promotions: it says that they were impermissibly
preferred in advancement, and the plaintiffs excluded, on racial
grounds. This amounts to saying that their promotions were
based on an unconstitutional decision or process, and to say
that an officer has no interest in defending his own promotion
would be to defy common sense.
Admittedly, the plaintiffs have not asked that the
promotions be voided and the contest begun again; instead, the
plaintiffs would naturally prefer promotion for themselves with
back pay. But the plaintiffs do not make the final decision as
to what relief should be afforded if the district court does
find a constitutional violation. There are cases enough where,
in the employment context, courts have undone hiring or
promotion decisions tainted by wrongful motives or practices.
E.g., Jones v. Rivers, 732 F. Supp. 176, 179 (D.D.C. 1990).
The second question posed by the intervention rule--
whether the intervention applicants' ability to protect their
interest "may" be "impair[ed] or impede[d]" if they are not
allowed to intervene, Fed. R. Civ. P. 24(a)(2)--is also easily
answered. A case can exist in which a party might have an
interest in the property or transaction but might be so situated
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that the interest could not be affected by the outcome; but
here, for reasons already indicated, even a small threat that
the intervention applicants' present promotions could be
jeopardized would be ample reason for finding that their ability
to protect their interest "may" be adversely affected.1
Ordinarily, the most difficult issue in cases of this
kind is the third requirement, namely, that the applicant's
interest will not be "adequately represented by existing
parties." Where the applicant seeks to intervene as a defendant
and the existing defendant is a governmental entity, this court
and a number of others start with a rebuttable presumption that
the government will defend adequately its action, e.g., Daggett,
172 F.3d at 111. This is so even if the governmental defendant
itself consents to intervention, Public Serv. Co. v. Patch, 136
F.3d 197, 208 (1st Cir. 1998); there are other interests at
stake, including the court's own concern in efficiently managing
litigation.
The applicants for intervention urge that the
presumption should not extend to cases in which the government
is defending in a proprietary capacity. In support of this
1
Grutter v. Bollinger, 188 F.3d 394, 399 (6th Cir. 1999);
Kansas Pub. Employees Retirement Sys. v. Reimer & Koger Assocs.,
60 F.3d 1304, 1307-08 (8th Cir. 1995); United States v. Hooker
Chems. & Plastics Corp., 749 F.2d 968, 984 (2d Cir. 1984).
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proposition, they cite statements by courts of appeals of two
other circuits, Mausolf v. Babbitt, 85 F.3d 1295, 1303 (8th Cir.
1996), and Edwards v. City of Houston, 78 F.3d 983, 1005 (5th
Cir. 1996). However, in a situation such as the present one, in
which the government is being sued, the presumption rests
primarily on the premise that the government as an institution
is likely to do an adequate job of defending its own conduct.
See Massachusetts Food Ass'n v. Massachusetts Alcoholic
Beverages Control Comm'n, 197 F.3d 560, 566-67 (1st Cir. 1999),
cert. denied, 120 S. Ct. 1846 (2000). This may be equally true
whether one categorizes the government as acting in a sovereign
or in a proprietary capacity--a line itself not always easy to
draw, as this case itself suggests. In our view, it is enough
to say that the nature of the government's interest is simply a
possible factor in deciding whether the applicant's interest
would be adequately represented by the government agency.
In this case, enough likelihood of conflict or
divergence of interest exists to defeat any claim that "the
applicant's interest is adequately represented by existing
parties," Fed. R. Civ. P. 24(a)(2). The applicants for
intervention have expressed an intention to defend the use of
racial criteria, assuming that they were used, as a proper
remedial measure, both as a remedy for the past discrimination
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by the Boston Police Department and as a counter to the alleged
deficiencies in its current tests. While the Boston Police
Department is likely to adopt the first line of defense (Def.'s
Answer, 9th Aff. Def.), there is ample reason for it to resist
a defense premised on a showing that its tests are currently in
violation of law.
A closely related and more difficult issue, not
discussed by the parties, is the extent to which an intervenor-
defendant can enlarge the issues in the case beyond those that
the original plaintiff and defendant wish to litigate. This is
a matter fraught with difficulty,2 and we decline to take a
position on it in the abstract and without the benefit of
briefing. However, the intervention issue must be decided now;
and there is enough likelihood of conflict or divergence between
2The traditional sense was that a court could not impose
conditions on an intervention as of right. 7C Wright, Miller &
Kane, Federal Practice and Procedure § 1922, at 505 (2d ed.
1986). However, the 1966 Amendment to Federal Rule of Civil
Procedure 24(a) may have changed this rule. Id.; see also Fed.
R. Civ. P. 24(a) advisory committee's note. District courts
have frequently imposed such conditions, and courts of appeals
have sometimes embraced them, Beauregard, Inc. v. Sword Servs.
LLC, 107 F.3d 351, 352-53 (5th Cir. 1997); Southern v. Plumb
Tools, 696 F.2d 1321, 1322 (11th Cir. 1983), but courts of
appeals have commonly reserved the issue, leaving the extent to
which such conditions may be imposed unclear, e.g., Columbus-
America Discovery Group v. Atlantic Mut. Ins. Co., 974 F.2d 450,
469-70 (4th Cir. 1992), cert. denied, 507 U.S. 1000 (1993). See
Wright, Miller & Kane, supra, § 1922 (2d ed. 1986 & Supp. 2000).
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the intervention applicants and the named defendants to overcome
the final adequate-representation proviso.
The more difficult and far-reaching question on this
appeal is whether MAMLEO is entitled to intervene as of right.
It does not in this instance claim that its "property or
transaction" is involved, and its claims must therefore be
tested, under well-settled precedent, by asking whether its
members have the kind of stake necessary for intervention
individually. See, e.g., Sierra Club v. Glickman, 82 F.3d 106,
108-09 (5th Cir. 1996). If so, and assuming (as we do here)
that it is part of MAMLEO's function to represent the relevant
members' interests in matters of this kind and that the members'
own participation is not essential, then MAMLEO too has the
necessary stake in the outcome and a good chance of showing that
absent intervention, disposition of the case "may as a practical
matter impair or impede" the protection of that interest.3
MAMLEO stresses at the outset its long and
distinguished history of representing officers of the Boston
3
Interestingly, the test described above originated as a
three-part test for the "standing" of organizations, Hunt v.
Washington State Apple Adver. Comm'n, 432 U.S. 333, 341-43
(1977), but has since been used interchangeably as a test both
for organizational standing and for an organization's right to
intervene. E.g., Sierra Club, 82 F.3d at 110; Equal Employment
Opportunity Comm'n v. Nevada Resort Ass'n, 792 F.2d 882, 885
(9th Cir. 1986).
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Police Department, including its role as a class representative
in procuring a consent decree in 1980 that included affirmative
action goals and timetables for promotion to sergeant.4 These
credentials indicate that MAMLEO's participation would be useful
and well-informed, as the district court recognized in granting
MAMLEO amicus status, but a historical connection by itself is
not the same thing as "an interest [of MAMLEO's members]
relating to the property or transaction which is the subject of
the action," Fed. R. Civ. P. 24(a)(2). And while in some cases
courts have allowed MAMLEO to intervene, we cannot find any
direct discussion in our own cases that addresses the precise
issue now before us.
The issue turns, it seems to us, on whether MAMLEO
members who were not involved in this particular "promotion to
sergeant" sequence still have enough of a stake in the outcome
of this case to satisfy the "interest" provision of the
intervention rule. Civil rights litigation involving race, and
4
See Massachusetts Ass'n of Afro-American Police, Inc. v.
Boston Police Dep't, Civ. No. 78-529-McN (D. Mass. Sept. 16,
1980) (consent decree); see also Boston Police Superior Officers
Fed'n v. City of Boston, 147 F.3d 13 (1st Cir. 1998);
Massachusetts Ass'n of Afro-American Police, Inc. v. Boston
Police Dep't, 973 F.2d 18 (1st Cir. 1992); Stuart v. Roache, 951
F.2d 446 (1st Cir. 1991), cert. denied, 504 U.S. 913 (1992);
Massachusetts Ass'n of Afro-American Police, Inc. v. Boston
Police Dep't, 780 F.2d 5 (1st Cir. 1985), cert. denied, 478 U.S.
1020 (1986); Massachusetts Ass'n of Afro-American Police, Inc.
v. Boston Police Dep't, 106 F.R.D. 80 (D. Mass. 1985).
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especially cases involving employment, do not always neatly fit
the model of a discrete common law action between a plaintiff
and a defendant. Rather, although the case may be sparked by a
particular episode, the decision may be likely to control an
ongoing process within the department or agency for formulating
rules for advancement and so predictably affect the interests of
others who are already employed by the same institution and who
will in turn be seeking advancement.
Assuredly, a number of MAMLEO's current officer members
are going to seek promotion to sergeant. Judged in the most
practical terms, the outcome of this case may very well
determine how the Boston Police Department handles, and is
allowed to handle, comparable situations almost certain to arise
in the future, and the likely impact on other MAMLEO members
seems to us substantial, predictable and far more concrete than
some general interest in precedent. Obviously, we are concerned
here with matters of degree and a particular fact pattern; but
the ultimate issue is pinning a legal label on those facts. On
the admitted or obvious facts, MAMLEO seems to us to have enough
to satisfy the "interest" requirement of the intervention rule.
Our prior discussion shows that MAMLEO also satisfies
the other two requirements of Rule 24(a)(2). If plaintiffs
prevail and as a result the Boston Police Department is
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constrained to ignore race entirely in all future promotions,
other MAMLEO members may well lose promotion opportunities.
Similarly, the potential conflict between MAMLEO and the Boston
Police Department on how best to defend the consideration of
race in promotions is enough to show that the interest of MAMLEO
members is not "adequately represented by existing parties,"
Fed. R. Civ. P. 24(a)(2).5
The order denying intervention is vacated and the
matter is remanded to the district court with directions to
allow intervention as of right to the three applicants. Each
side will bear its own costs on this appeal. The plaintiffs'
motion for damages, costs and attorney's fees is denied.
It is so ordered.
5This does not mean that any other MAMLEO member is entitled
to intervene as of right. If MAMLEO intervenes, it is hard to
see how such an officer, whose own promotion is not immediately
at stake, could avoid the "adequately represented" bar.
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