Hunter v. City of Los Angeles Corrected Brief for Plaintiffs-Appellees

    Nos. 93-55066, 93-55129

IN T H E
U N ITED  STATES C O U R T O F APPEALS 

FO R T H E  NINTH CIRCU IT

JO H N  W. H U N TER, et al.,
Plaintiffs-Appellees,

v.

CITY O F LOS ANGELES,
Defendant-Appellee.

LATIN AM ERICAN LAW ENFORCEM ENT ASSOC.
Plaintiffs-Appellees,

CITY O F LOS ANGELES,
Defendant-Appellee.

RICHARD J.M. DY ER, DA N IEL E. PUGEL, 
DOUGLAS S. ABNEY,

Proposed Intervenors-Appellants.

Appeal from Denial of Intervention 
United States District Court Central District of California 

Hon. A. Wallace Tashima, Presiding

CORRECTED BRIEF FOR PLAINTIFFS-APPELLEES

Kathryn K. Imahara 
Asian Pacific American Legal Center 
1010 S. Flower Street, Suite 302 
Los Angeles, CA 90015 
(213) 748-2022

v.

Theresa Fay-Bustillos
Mexican-American Legal Defense
and Educational Fund
634 S. Spring Street, 11th Floor
Los Angeles, CA 90014
(213) 629-2512

Bill Lann Lee 
Robert Garcia 
NAACP Legal Defense 
and Educational Fund, Inc. 
315 W. 9th Street, Suite 208 
Los Angeles, CA 90015 
(213) 624-2405

Attorneys for Plaintiffs-Appellees



Nos. 93-55066, 93-55129

IN THE
UNITED STATES COURT OF APPEALS 

FOR TH E NINTH CIRCUIT

JOHN W. HUNTER, et al.L W *  M i . j

Plaintiffs-Appellees,

v.

CITY OF LOS ANGELES,
Defendant-Appellee.

LATIN AMERICAN LAW ENFORCEMENT ASSOC.
Plaintiffs-Appellees,

CITY OF LOS ANGELES,
Defendant-Appellee.

RICHARD JM . DYER, DANIEL E. PUGEL, 
DOUGLAS S. ABNEY,

Proposed Intervenors-Appellants.

Appeal from Denial of Intervention 
United States District Court Central District of California 

Hon. A. Wallace Tashima, Presiding

CORRECTED BRIEF FOR PLAINTTFFS-APPELLEES

Kathryn K. Imahara
Asian Pacific American Legal Center
1010 S. Flower Street, Suite 302
Los Angeles, CA 90015
(213) 748-2022

v.

Theresa Fay-Bustillos
Mexican-American Legal Defense
and Educational Fund
634 S. Spring Street, 11th Floor
Los Angeles, CA 90014
(213) 629-2512

Bill Lann Lee 
Robert Garcia 
NAACP Legal Defense 
and Educational Fund, Inc. 
315 W. 9th Street, Suite 208 
Los Angeles, CA 90015 
(213) 624-2405

Attorneys for Plaintiffs-Appellees



VII. CONCLUSION............................................................................................................... 26

STATEMENT OF RELATED CASES ................................................................................. 27

ATTORNEYS F E E S .................................................................................................................  27

ii



TABLE OF AUTHORITIES

Cases: Pages:

Aetna Life Ins. Co., v. Haworth,
300 U.S. 227, 57 S.Ct. 461, 811 L.Ed.2d 617 (1937)................................................... 25

Alaniz v. Tillie Lewis Foods,
572 F.2d 657 (9th Cir.), cert denied, 439 U.S. 837,
99 S.Ct. 123, 58 L.Ed.2d 134 (1 9 7 8 )..............................................................  8-11, 14-17

Anderson v. City of Bessemer City,
470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)..............................................  6, 25

Arizona v. California,
460 U.S. 605, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)............................................ 22, 23

Buckley v. Valeo,
424 U.S. 11, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) .....................................................  25

County of Fresno v. Andrus,
622 F.2d 436 (9th Cir. 1980) ......................................................................................7 18

County of Orange v. Air California,
799 F.3d 535 (9th Cir. 1986), cert denied,
480 U.S. 946, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987)..............................  6-9, 11, 13, 15

Doherty v. Rutgers School of Law-Newark,
651 F.2d 893 (3d Cir. 1 9 8 1 )..........................................................................................  13

Donaldson v. United States,
400 U.S. 517, 91 S.Ct. 534, 27 L.Ed 2d 580 (1971) ................................  17, 18, 20, 21

EEOC v. Pan American World Airways, Inc.,
897 F.2d 1499 (1990), U.S. cert denied, 498 U.S. 815,
111 S.Ct. 55 (1990) ...............................................................................................  7, 23-25

Farwest Steel Corp. v. Barge Sen-Span 241,
769 F.2d 620 (9th Cir. 1985) ........................................................................................  24

Howard v. McLucas,
782 F.2d 956 (11th Cir. 1986)........................................................................................  19

Howard v. McLucas,
871 F.3d 1000 (11th Cir. 1989)...................................................................................... 19

In re Birmingham Reverse Discrimination 
Employment Litigation,

833 F.2d 1492 (11th Cir. 1987), U.S. rehearing denied,
492 U.S. 932, 110 S.C. 11, 106 L.Ed 628 (1989) .......................................................  20

iii



Pages:

Yniquez v. Moffard, 130 F.R.D. 410 (D. Ariz. 1990), affd in part,
rev’d in part, 939 F.2d 727 (9th Cir. 1991).....................................................................  9

Statutes: Pages:

28 U.S.C. § 1291 ................................................................................. 7 .................................  2, 5

28 U.S.C. § 1343 .....................................................  1

42 U.S.C. § 2000e........................................................................................................................  19

42 U.S.C. § 2000e-2(n)............................................................................................................... 21

42 U.S.C. § 2000e-2(n)(l)..........................................................................................................  23

432 U.S. at 395-96 ...................................................................................................................... 10

Fed. R. Civ. P. 5 2 .......................................................................................................................   6

Fed.R.Civ. P. 24(a)(2) .................................................................................................................  2

42 U.S.C. § 2000e........................................................................................................................  19

42 U.S.C. § 2000e-2(n)...............................................................................................................  21

42 U.S.C. § 2000e-2(n)(l)..........................................................................................................  23

Fed.R.Civ. P. 24(a)(2) .................................................................................................................  2

FRCP Rule 2 4 ............................................................................................................................  11

v



Nos. 93-55066, 93-55129

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

JOHN W. HUNTER, et al.,
Plaintiffs-Appellees,

v. —

CITY OF LOS ANGELES,
Defendant-Appellee.

LATIN AMERICAN LAW ENFORCEMENT ASSOC.
Plaintiffs-Appellees,

v.

CITY OF LOS ANGELES,
Defendant-Appellee.

RICHARD JM . DYER, DANIEL E. PUGEL,
DOUGLAS S. ABNEY,

Proposed Intervenors-Appellants.

Appeal from Denial of Intervention 
United States District Court Central District of California 

Hon. A. Wallace Tashima, Presiding

CORRECTED BRIEF FOR PLAINTIFFS-APPELLEES

I.

STATEMENT OF JURISDICTION

The district court had subject matter jurisdiction pursuant to 28 U.S.C. § 1343 of this 

employment discrimination class action brought by minority police officers. A final judgment 

was entered on August 27, 1992, approving a consent decree. Supp. 71-73. The time to appeal

1



the approval of the consent decree ran on September 26,1992. The proposed intervenor white 

officers did not file a motion to intervene until after the time to appeal had elapsed.

The instant appeal seeks review of the denial of a motion to intervene as of right 

pursuant to Fed.R.Civ. P. 24(a)(2) that was originally filed on October 9, 1992, by the three 

white officers, after the time to appeal the consent decree had elapsed. The motion was denied 

by an order issued November 18,1992. Supp. 121. Notices of appeal were filed on December 

17, 1992. Supp. 123-26. The appeal is proper under 28 U.S.C. § 1291 as an appeal from the 

final order denying intervention.

II.

ISSUES PRESENTED FOR REVIEW

A. Whether the district court abused its discretion in denying as untimely a motion to 

intervene as of right?

B. Whether the district court correctly denied a motion to intervene as of right because the 

proposed intervenors have no direct, significant protectable interest in the outcome of the 

litigation, any interest of proposed intervenors will not be impaired or impeded, and any 

interest of proposed intervenors has been adequately represented by their own past 

participation in prior proceedings as amici curiae?

C. Whether the district court’s findings that the proposed intervenors were accorded actual 

notice and an opportunity to be heard concerning the underlying Consent Decree were clearly 

erroneous?

III.

STATEMENT OF THE CASE

A. Prior Proceedings.

The underlying employment discrimination class action lawsuit was initiated on 

September 12, 1988, with the filing of an administrative complaint of employment 

discrimination by an organization of Latino Los Angeles Police Department ("LAPD") officers, 

the Latin American Law Enforcement Association, and on October 11, 1988, with the filing of

2



a similar administrative complaint by an African-American LAPD officer, John W. Hunter, with 

the California State Department of Fair Employment and Housing ("DFEH"). Supp. 19-31. 

The substantially similar complaints alleged that minority LAPD officers were denied civil 

service promotions, assignments to desirable mobility-enhancing positions, paygrade 

advancements within those positions, and assignments to desirable mobility-enhancing positions 

by the City of Los Angeles ("the City"). The DFEH certified the two complaints as class 

actions on behalf of African-American and Latino LAPD officers. Supp., at pp. 20-31. In 

December 1990 and January 1991, DFEH issued lengthy accusations in both cases finding 

probable cause that minority officers had been subject to discrimination in promotions, 

advancements and assignments based upon unrebutted statistical analyses and information 

gathered during an extensive administrative investigation. Supp. 21-25, 32-36.

The minority officers and the City then entered into settlement negotiations. 

Declaration of Theresa Fay-Bustillos at 18 in support of Plaintiffs’ Opposition to Amicus Curiae 

Brief, filed July 27,1992 ("Declaration of Fay-Bustillos"). During the negotiations, the Korean 

American Law Enforcement Association filed an administrative charge and joined the 

negotiations on behalf of Asian-American LAPD officers. Plaintiffs’ Memorandum In Support 

Of Proposed Consent Decree at 2. A settlement in the form of a proposed Consent Decree 

was reached in late 1991. Declaration of Fay-Bustillos at 18. The proposed Consent Decree 

was approved by the City Council on November 5, 1991. Id.

The administrative proceedings and the provisions of the proposed Consent Decree were 

the subject of extensive media coverage. See, e.g., "LAPD Holds Back Black Officers, State 

Says," LA . Times, Jan. 24,1991, at Bl; "Minority Officers Hail Bias Accord," L A . Times, Nov. 

7, 1991, at Bl, Supp. 112-14. After the City Council approved the proposed Decree, the Los 

Angeles Police Protective League, the collective bargaining agent for all LAPD officers, 

published and distributed to its members a bulletin entitled "Proposed Consent Decree and 

Agreement Resolving Litigation re Police Department Promotions, Paygrade Advancements, 

and Assignments to Coveted Positions," dated December 24, 1991. The bulletin contained a

3



four-and-a-half page single-spaced summary of the proposed Decree. Supp. 115-20.

On March 27,1992, the minority officers filed two judicial complaints against defendant 

City along with the proposed Decree. The district court, Hon. A. Wallace Tashima, presiding, 

on April 6, 1992, consolidated the two cases, certified the class of minority officers, authorized 

notice of the proposed settlement to the class and set a fairness hearing. Supp. 1-12. The 

district court modified the order on April 15, 1992, making minor revisions to some of the 

notice procedures and setting a new fairness hearing for July 13, 1992. Supp. 13-15.

At the fairness hearing, three white LAPD officers, Richard J.M. Dyer, Daniel E. Pugel, 

and Douglas S. Abney, ("white officers") submitted an "Amicus Curiae Brief Opposing 

Confirmation of Consent Decree and Agreement" on behalf of white LAPD officers. Supp. 53. 

("July 13,1992, amicus brief'). The brief stated that the three officers ”ha[d] not made a formal 

motion to intervene . . .  as the likelihood of prevailing on FRCP Rule 24 action at this date 

would be very unlikely." Supp. 55. The brief then made numerous arguments that the 

provisions of the Consent Decree were unconstitutional and unfair to white officers. Id. In 

order to consider the claims made by the white officers, the district court continued the fairness 

hearing until August 10,1992, permitting the parties to respond and the white officers to reply. 

Supp. 72. The white officers’ two briefs opposing approval of the Decree total 53 pages, 

exclusive of exhibits.

At the continued fairness hearing, the white officers’ counsel made extensive oral 

arguments. Supp. 57-70. When the district court judge stated that he would approve the 

Consent Decree, the white officers’ counsel indicated that he intended to file a motion to 

intervene as of right and requested a special hearing date. Supp. 69. The district court denied 

the request. Supp. 69. Pursuant to C.D. Cal. Local Rules 7.2 and 7.4, a motion is heard 

without special setting the first Monday, 21 days after the filing of the motion.

4



On August 27, 1992, the district court entered a Judgment and Order Approving 

Consent Decree and Agreement. Supp. 71-73. In response to the white officers’ argument 

that the term of the Decree was too long, the Court amended the fixed term of 12 to 15 years 

to a maximum term of 15 years subject to the right of defendant City of Los Angeles to move 

at any time to be relieved of its obligations upon a showing that the Decree’s objectives had 

been accomplished. Supp. 65-67, 92. Otherwise the district court approved the Consent 

Decree presented by the minority officers and the City.

The time to appeal the Consent Decree expired on September 26, 1992, see 

28 U.S.C. § 1291, without the white officers filing an intervention motion or an appeal.

B. The Proposed Intervention.

On October 16, 1992 — 50 days after entry of judgment — the three white officers filed 

a motion for intervention as of right pursuant to Fed. R. Civ. P. 24(a)(2) along with a 

supporting memorandum, a proposed complaint-in-intervention and a declaration by proposed 

intervenor Pugel.

As of the date of the intervention, it was too late to challenge the Consent Decree on 

its face. No issues concerning implementation of the Decree were before the Court. None of 

the proposed intervenors’ papers complain of any specific post-judgement act or conduct that 

has adversely affected them or any other white officer.

C. The Decision Below.

The district court denied the motion to intervene on November 18,1992, on all grounds, 

making specific findings that the motion was untimely.

The proposed intervenors had notice of this action well before the date 
initially set for approval of the class settlement. They appeared at that hearing 
and were granted amici status, permitted to file a brief in opposition to the 
proposed settlement and the hearing was continued so that their objections could 
be considered and responded to by the parties. That amici and proposed 
intervenors were well acquainted with the issues is demonstrated by the lengthy 
briefs they filed. The court adopted one of the changes requested by amici.
They never moved for intervention before the judgment was entered.

5



The final Judgment and Order Approving Consent Decree and 
Agreement was entered on August 28, 1992, more than two months ago. 
Proposed intervenors were aware of this because they were present at the final 
hearing when the consent decree was approved. Having waited this long, until 
after the time to appeal from the judgment has long expired, the proposed 
complaint in intervention is nothing less than a bald collateral attack on the 
judgment. The motion for intervention is not timely.

Supp. 122.

IV.

STANDARDS OF REVIEW

In assessing whether a motion for intervention as of right was properly denied as 

untimely, the Court uses an abuse of discretion standard. NAACP v. New York, 413 U.S. 345, 

366, 93 S.Ct. 2591, 37 L.Ed.2d 648 (1973) (Timeliness "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"); United States v. Covington Technologies, 967 F.2d 1391, 1394 (9th Cir. 

1992); County o f Orange v. Air California, 799 F3d 535, 537 (9th Cir. 1986), cert denied, 480 

U.S. 946, 107 S.Ct. 1605, 94 L.Ed3d 791 (1987).

In assessing whether the motion for intervention of right was otherwise properly denied, 

the Court conducts a de novo review. Covington Technologies, 967 F.2d at 1394; Air California, 

799 F.2d at 537.

In assessing whether the district court correctly found that proposed intervenors had 

been accorded actual notice and an opportunity to be heard, the Court uses the clearly 

erroneous rule of Fed. R. Civ. P. 52. Anderson v. City o f Bessemer City, 470 U.S. 564, 573-74, 

105 S.Q. 1504, 84 L.Ed.2d 518 (1985).

V.

SUMMARY OF ARGUMENT

The district court did not abuse its discretion in finding that the motion for intervention 

as of right was untimely filed. A post-judgment motion to intervene by the white officers was 

not filed within the time allowed for the filing of an appeal notwithstanding the "‘general rule 

that a post-judgment motion to intervene is timely if filed within the time allowed for the filing

6



of an appeal.’" Covington Technologies, 967 F.2d at 1394, quoting Yniquez v. Arizona, 939 F.2d 

727, 734 (9th Cir. 1991). The lower court correctly denied the motion to intervene as untimely. 

The Court should dismiss the appeal or summarily affirm on the basis of untimeliness.

The record fully supports the determination of the Court below that proposed 

intervenors have no direct, substantial protectable interest, that no impairment of any interest 

will result, and that any interest has been adequately represented by proposed intervenors’ past 

participation as amici curiae. The lower court therefore correctly determined that intervention 

as of right should be denied on these grounds.

The district court correctly found that proposed intervenors had notice of the Consent 

Decree and were given an opportunity to be heard. These findings are not clearly erroneous. 

They are fully supported by the record. There was no violation of the Due Process Clauses of 

the Fifth and Fourteenth Amendments, Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 

306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950); EEOC v. Pan American World Airways, Inc., 897 

F.2d 1499, 1507-08 (1990), U.S. cert denied, 498 U.S. 815, 111 S.Q. 55 (1990) or of Title VII 

of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(n)(l).

VI.

ARGUMENT

The Court has adopted the following four-part test to resolve applications for

intervention of right under Fed. R. Civ. P. 24(a)(2):

An order granting intervention as of right is appropriate if (1) the 
applicant’s motion is timely; (2) the applicant has asserted an interest relating 
to the property or transaction which is the subject of the action; (3) the applicant 
is so situated that without intervention the disposition may, as a practical matter, 
impair or impede its ability to protect that interest; and (4) the applicant’s 
interest is not adequately represented by the existing parties.

Covington Technologies, 967 F.2d at 1394; Air California, 799 F.2d at 537. For the reasons set

forth below, the district court correctly applied these standards in the instant case.

7



A. The District Court Correctly Exercised Its Discretion in Finding the Motion to Intervene 

Untimely.

1. The Appropriate Legal Standard.

In determining whether a motion to intervene is timely, the Court evaluates three factors

to determine whether the lower court abused its discretion.

(1) the stage of the proceeding at which an applicant seeks to intervene; (2) the 
prejudice to other parties; and (3) the reason for and length-of the delay.

Covington Technologies, 967 F.2d at 1394; Air California, 799 F.2d at 537; Alaniz v. Tillie Lewis

Foods, 572 F.2d 657, 658 (9th Cir.), cert denied, 439 U.S. 837, 99 S.Ct. 123, 58 L.Ed.2d 134

(1978). The alternative standard proffered by the white officers (length of time applicant knew

or should have known of their interest in the litigation, extent of prejudice to existing parties

if the intervention is granted, extent of prejudice to the applicants if intervention is denied, and

existence of any unusual factors that would militate for or against intervention) is unsupported

by citation to any legal authority and finds limited support for only a portion of the standard

in either of the cases the white officers cite generally. Appellants’ Opening Brief at 9 ("white

officers’ brief'). See United States v. Oregon, 745 F.2d 550, 552 (9th Cir. 1984)(three factors:

stage of the proceedings, prejudice to other parties and reason for and length of the delay.);

Western Water District v. United States, 700 F.2d 561, 563 (9th Cir. 1983).

2. The Motion to Intervene Was Untimely Because It Was Filed at the Post-judgment 

Stage o f the Proceedings and After the Time to Appeal Had Expired.

The general rule is that a bona fide post-judgment motion to intervene is timely only

if filed within the time allowed for the filing of an appeal. United Airlines, Inc. v. McDonald,

432 U.S. 385, 396, 97 S.Ct. 2464, 53 L.Ed. 2d 423 (1977); Covington Technologies, 967 F.2d at

1394; Yniquez v. Arizona, 939 F.2d 727, 734 (9th Cir. 1991).

"Although post-judgment motions to intervene are generally disfavored, post­
judgment intervention for purposes of appeal may be appropriate if certain 
requirements are met, the first of which is that the intervenors must act promptly 
after entry of judgment . . .  The second requirement is that the intervenors must 
meet traditional standing criteria."

8



Covington Technologies, 967 F.2d at 1395, quoting Yniquez v. Moffard, 130 F.R.D. 410, 414 (D. 

Ariz. 1990), tiff'd in pan, rev’d in pan, 939 F.2d 727 (9th Cir. 1991).

If the proposed intervenor had reason to intervene earlier, post-judgment intervention 

is generally disfavored because it creates delay and prejudice to the existing parties and 

undermines the orderly administration of justice, particularly after the existing parties have 

entered into a settlement agreement. See Air California, 799 F.2d at 538; Alaniz, 572 F.2d at

658; Ragsdale v. Tumock, 941 F.2d 501, 504 (7th Cir. 1991); cert denied,___U.S.___ , 112 S.Ct.

879, 116 L.Ed.2d 784 (1992) ("Once parties have invested time and effort into settling a case 

it would be prejudicial to allow intervention . . . [Intervention at this time would render 

worthless all of the parties’ painstaking negotiations because negotiations would have to begin 

again and [the proposed intervenor] would have to agree to any proposed consent decree . . . 

A case may never be resolved if another person is allowed to intervene each time the parties 

approach a resolution of it.") (citations omitted). Under this line of cases, the filing of a post­

judgment motion within the time for appeal is irrelevant. See, e.g, Alaniz, 572 F.2d at 858 

(motion filed 17 days after judgment untimely).

The white officers knew or should have known long before the entry of judgment that 

their interest might be affected by the consent decree. Nothing new happened after the entry 

of judgment that adversely affected the proposed intervenors or any other white officer. The 

white officers’ intervention therefore should have been filed before the entry of judgment. The 

intervention was not a bona fide post judgment motion. The district court did not abuse its 

sound discretion in so ruling.

Even assuming arguendo that the white officers’ motion was a bona fide post-judgment 

application, it was untimely because the white officers failed to file within the time allowed for 

filing an appeal. The general rule is that a post-judgment motion must be filed within the time 

to appeal. The white officers’ brief, p. 12, seeks to dispute the applicable objective standard, 

arguing for a subjective test that "the relevant circumstance as to whether the Appellants are 

timely is when they first became aware that its interest could be adversely affected and was not

9



being protected adequately by the existing parties," citing McDonald, 432 U.S. at 394.

McDonald says no such thing. McDonald concerned a class member who "quickly sought to

enter the litigation" after discovering that class representatives would no longer protect her

interests. Id. The Supreme Court clearly stated as follows:

The critical inquiry in every [post-judgment] case is whether in view of all the 
circumstances the intervenor acted promptly after the entry of final judgment.
Cf. NAACP v. New York, 413 U.S. 345, 366, 37 L.Ed.2d 648, 93 S.Ct. 2591.
Here, the [proposed intervenor] filed her motion within the time period in which 
the named plaintiffs could have taken an appeal.

432 U.S. at 395-96. This Court has repeatedly so ruled as well. Covington Technologies, 967

F.2d at 1394; Yniquez, 939 F.2d at 734. There is no basis for the white officers’ subjective

standard for intervention. Indeed, the law requires an objective standard. See NAACP v. New

York, 413 U.S. at 366 ("appellants knew or should have known . . . ); Alaniz, 572 F.2d at_657

(proposed intervenors "either knew or should have known . . .").

In any event, the white officers disingenuously misstate the record of their subjective

knowledge. Although they argue to this Court that they intervened only because they learned

at the August 10,1992, fairness hearing that the City would not represent their interests, white

officers’ brief at 12, that argument is inconsistent with their position below. The July 13, 1992,

amicus brief submitted to the district court indicates that they harbored such feelings long

before the fairness hearing. The amicus brief expressly argued that ”[t]he Consent Decree and

Agreement can not [sic] be approved as the interests o f non-minority officers o f the Los Angeles

Police Department have not been represented by the City" (Supp. 54 (original emphasis)), and

questioned whether the City "in any way adequately represented the non-minority officers’

interest" (id. at 56) and whether they and the City "shared any identity of interest at all" (id.).

The brief concluded that the "City’s interests were antagonistic" to those of white officers. Id.

The amicus brief demonstrates that the white officers’ characterization of their late

subjective knowledge about the need to intervene is a complete fabrication. The amicus brief

clearly reflected the white officers’ contemporaneous knowledge that any intervention would

be untimely as of July 1992, when the amicus brief was submitted.

10



The non-minority officers of the Los Angeles Police Department have not made 
a formal motion to intervene under the Federal Rules of Civil Procedure, Rule 
24, as the likelihood of prevailing on FRCP Rule 24 action at this date would be 
very unlikely.

Supp. 55. (citations omitted).

The white officers’ do not raise a bona fide post-judgment intervention because they 

knew or should have known of any need to intervene much earlier than the entry of final 

judgment. Extensive and well-publicized negotiations or settlement-are enough to trigger the 

need to intervene under the law of this Circuit. Air California, 799 F.2d at 538 (intervention 

untimely when motion was made only after a well-publicized settlement). As this Court held 

in Alaniz, 572 F.2d at 659, "The crux of [proposed intervenors’] argument is that they did not 

know the settlement decree would be to their detriment. But surely they knew the risks. To 

protect their interests, [proposed intervenors] should have joined the negotiation before the suit 

was settled. ...[Proposed intervenors] have not proved fraudulent concealment. It is too late 

to reopen this action." Indeed, the Korean American Law Enforcement Association, on behalf 

of Asian-American officers, began to participate after settlement negotiations were underway 

between the Latino and African American plaintiffs and the City. Plaintiffs’ Memorandum in 

Support of Proposed Consent Decree at 2. They recognized the significance of the issues for 

Asian American officers. Unlike the white officers, they took the necessary steps in a timely 

manner to participate.

In the instant case, the undisputed record demonstrates that the settlement reached in 

administrative proceedings was extensively publicized in November and December of 1991 

through newspaper coverage and the distribution by the Los Angeles Police Protective League 

of a summary of the settlement agreement. A Los Angeles Times article, published after the 

DFEH’s accusations were released, describes "’the pervasive and blatant pattern of 

discrimination against minorities in the LAPD’." Supp. 112. According to that article, the 

DFEH "wants the Police Department to revise its system of testing officers for promotion and 

to follow affirmative action requirements in the way qualified candidates are selected for

11



promotion." Id. An article from the same paper, published after the City agreed to the

settlement, quotes one of plaintiffs’ counsel as follows: "‘The purpose of the settlement is to

build a promotion system at the department that is based on merit and open access to all

officers rather than to favoritism that favors Anglo officers."’ Supp. 114. The Police Protective

League, in consultation with its lawyers, provided its members a summary of the provisions of

the settlement, and explained that the settlement would be effectuated through a Consent

Decree. Supp. 115-20. The Police Protective League also put its membership on notice that

it would take a neutral position on the Decree:

"[BJecause the League must fairly represent all of its members without regard for 
their sex, race, religious or national origin, the league cannot concur, oppose or 
participate in the proposed Consent Decree and Agreement."

Supp. 115. The only white officer to submit a declaration, Mr. Pugel, stated that he was a

Protective League member. Supp. 105. The white officers, in short, knew or should have

known as of the beginning of 1992 that they should intervene in the administrative proceedings,

or as soon as the judicial action was filed in March 1992 to protect their interests. Yet they

delayed and did not seek to intervene for another ten and a half months.

Mr. Pugel swears in his declaration are that he was first "made aware" of the Consent

Decree in mid-May 1992, and that he "had an opportunity to review the twenty-five page

Consent decree on or about the end of May, 1992" at his LAPD station house. Supp. 104.

By his own admission, Mr. Pugel knew or should have known that he should intervene to

protect his purported interest in May 1992. Yet a month and a half went by before the white

officers filed their amicus brief, and four and a half months passed before they sought

intervention.

The white officers’ brief, p. 10, claims that they "have only known of their interest in the 

litigation for a short period of time" and that the City "settled the case quietly and quickly 

without alerting the non-minority officers". These unsupported statements are plainly 

contradicted by the undisputed record of widespread publicity as of January 1992, and by Mr. 

Pugel’s admission of having read the Consent decree in May 1992. Supp. 104, 112-20.

12



The white officers’ brief, p. 10, also argues, without a shred of factual support, that the 

City failed to "consult" the white officers because of "heightened political and racial tensions 

in Los Angeles," p. 10, that the City failed to adequately notify the Police Protective League 

about the terms and ramifications of the Consent Decree, p. 11; that white officers had no 

access to the Decree, id.; that the Protective League failed to "undertake a due diligence [sic] 

investigation," id. These statements cannot be squared with the Pugel declaration or the 

Protective League summary.

The white officers’ brief, pp. 10-11, argues that the fairness hearing notices were directed 

only at minority LAPD officers, conveniently ignoring that the notices were posted at station 

house bulletin boards for all officers to see, and read at successive roll calls for all officers to 

hear. Indeed, Mr. Pugel admits that he personally "reviewed" a copy of the Consent Decree 

posted at his station house. Supp. 104.

Finally, with respect to whether the white officers meet "traditional standing criteria" of 

the post-judgment stage of proceeding inquiiy, Covington Technologies, 967 F.2d at 1394, none 

assert a particularized claim of personal injury as a result of being denied either a promotion, 

paygrade advancement or coveted assignment for which he was eligible through operation of 

the Consent Decree. Standing to sue is absent. See, e.g., Doherty v. Rutgers School o f Law- 

Newark, 651 F.2d 893, 899-900 (3d Cir. 1981). See also infra at 19-20.

3. Extreme Prejudice to the Existing Parties Would Result from Untimely Intervention.

After the post-judgment stage of proceedings, the Court considers prejudice to other 

parties in order to assess timeliness. Serious prejudice has been found by this Court where 

intervention would seriously disrupt a complex settlement that provides relief for long-standing 

inequities. United States v. Oregon, 913 F.2d 576, 588-89 (9th Cir. 1990) ("the possibility of this 

settlement unraveling is so prejudicial that to allow [intervention] at this late date would be

tantamount to disaster"), cert denied,_____U.S.____ , 111 S.Ct. 2889,115 L.Ed.2d 1054 (1991);

Air California, 799 F.2d at 538 (serious prejudice "‘results when relief from long-standing 

inequities is delayed’" and from undoing of settlement after five years of protracted litigation);

13



Alaniz, 572 F.2d at 659 (serious prejudice results when "the decree is already being fulfilled; to 

countermand it now would create havoc and postpone the needed relief).

In the instant case, the Consent Decree derives from administrative complaints of 

classwide discrimination originally filed in September and October 1988, almost four years ago. 

Accusations issued by the DEFH found probable cause to believe that pervasive discrimination 

hobbled the advancement of minority officers into supervisory and initial level management 

positions on the basis of extensive statistical disparities. Supp. 21-25, 32-26. For instance, the 

following chart, based on data in the accusations, depicts the discriminatory impact of 

promotional examinations under which white officers received promotions at much greater rates 

than qualified minority applicants. Memorandum in Support of Proposed Consent Decree, at

4.

Examination Percentage Selection Rates
White Minority

Detective 1983 38.8 10.9
1985 24.9 12.6
1987 26.9 15.7

Sergeant 1984 16.1 10.5
1986 20.1 7.6
1989 26.9 193

Lieutenant 1987 23.5 15.2

The Decree, on its face, is a complex settlement of systemic allegations of discrimination in 

LAPD sergeant, detective and lieutenant promotions, paygrade advancements and coveted 

positions. The decree provides for goals, for changes in numerous personnel practices, and 

monetary relief. Supp. 85-96. It has been in effect since September 1992.

The Decree also effectuates the recommendations of the Report of the Independent 

Commission on the Los Angeles Police Department, known as the "Christopher Commission 

Report," Supp. 44-52, which studied the operations of the LAPD in the wake of the Rodney 

King beating. The Christopher Commission recommended that minority officers "be given full 

and equal opportunity to assume leadership positions in the LAPD" (Supp. 49) and that 

"minorities must be assigned on a nondiscriminatory basis to the so-called ‘coveted positions’

14



and promoted to supervisory and managerial positions on the same basis" as white officers, 

(id.), noting that "‘if minority groups are to feel that they are not policed entirely by a white 

police force they must see that [African-American] or other minority officers participate in 

policy making and other crucial decisions’." Id. at 47, quoting President’s Commission on Law 

Enforcement and the Administration o f Justice, Task Force Report (1967).

Permitting white officers at this late stage in the proceedings to challenge approval of 

the settlement, given their across the board objections to the Consent Decree, which were 

previously raised and considered by the district court, would impose extreme prejudice on 

minority plaintiffs. Such a challenge would not only undo the lengthy negotiations which 

resulted in the Consent Decree, but would also delay ongoing relief for long-standing 

discriminatory patterns at the LAPD to the detriment not only of minority officers but minority 

communities and the City of Los Angeles as a whole.

The white officers’ brief, p. 14, cites purported prejudice to their interests. Such 

prejudice is not a criterion under the law of the Circuit. Eg., Covington Technologies, 967 F.2d 

at 1394; Air California, 799 F.2d at 537. Moreover, their concerns are premature at best, no 

white officer actually having complained of being denied a position or assignment because of 

the operation of the Decree. The white officers’ brief, at p. 14, also claims that the City would 

be prejudiced by the denial of intervention because it would be forced to defend "hundreds" of 

reverse discrimination suits. Such a claim is hypothetical, has no factual support in the record 

( no such claims having been filed to date) and is contrary to the evidence that only three white 

officers have come forward to object to the Consent Decree.

4. The White Officers C annot"Convincingly Explain” Their Delay.

The third timeliness criteria is the reason for and length of the delay. The court stated 

the heavy burden on a proposed intervenor to "convincingly explain its delay" when a district 

court, as here, has exercised its discretion to find untimeliness. Air California, 799 F.2d at 538; 

Alaniz, 572 F.2d at 659. In Air California, the Court rejected the claim that the City of Irvine 

could wait to intervene until after reading the settlement decree because "Irvine should have

15



realized that the litigation might be resolved by negotiated settlement." Id. In Alaniz, 572 F.2d 

at 659, the Court found that intervenors should have joined the negotiations of a settlement 

rather than wait for the settlement to be completed.

In the instant case, the white employees delayed beyond the point when administrative 

class actions were certified, the point of issuance of the DFEH accusations of probable cause 

on classwide discrimination, the point of negotiation, the point of settlement, the point of filing 

complaints in the trial court, all of which were well-publicized. They seek to explain their delay 

because they only learned their interests were adversely affected by the defendant City’s 

position at the fairness hearing. That, as we demonstrated above, is a fabrication. Even then, 

the white employees cannot "convincingly explain" their continuing delay after the fairness 

hearing. They delayed -  with no explanation -  yet another two months after the fairness 

hearing before seeking to intervene, notwithstanding that in the interim the time to appeal the 

merits of the Consent Decree expired. This lapse is even more inexplicable given the white 

officers’ representation — demand for a hearing date for the motion for intervention — to the 

district court at the fairness hearing that they would seek to intervene. Supp. 69.

The white officers’ brief argues that the passage of time alone is not dispositive, citing 

United States v. Oregon, 745 F.2d at 552, where a delay of five years from the initiation of the 

litigation was not detrimental. However, in Oregon, the intervenor "convincingly explained" that 

the delay resulted from recent changed circumstances which affected intervenors for the first 

time and created the possibility of new and expanded negotiations in a long-standing multiparty 

dispute. See also Legal Aid Society o f Alameda County v. Dunlop, 618 F.2d 48, 50-51 (9th Cir. 

1980) (change of circumstance resulting from a party’s change of position explained delay). 

Here there were no changed circumstances and no new negotiations; the dispute concerns white 

officers’ objections to the terms of a Consent Decree from which they can no longer appeal 

because of their extensive delays in seeking intervention and failure to timely appeal. Contrary 

to the white officers’ suggestion, the district court did not rely on the passage of time alone: 

the lower court found that the delays were inexplicable: although they "were well acquainted

16



with the issues," the white officers "never moved for intervention before the judgment was 

entered," and they then further delayed "until after the time to appeal from the judgment ha[d] 

long expired." Supp. 122.

5. The Appeal Should Be Dismissed or the Order o f the Lower Court Summarily Affirmed 

Because the Intervention was Untimely.

In Jenkins v. State o f Missouri, 967 F.2d 1245,1248 (8th Cir. 1992), cert denied by Clark 

v. Jenkins, 113 S.Ct. 811,121 L.Ed.2d 684, 61 USLW 3433 (1992), the Eighth Circuit dismissed 

an analogous appeal for lack of jurisdiction. Jenkins, a school desegregation case, concerned 

an attempt by property owners within a school district to intervene to challenge an order raising 

their property taxes. The Court held that "[i]n light of the . . .  group’s failure to make a timely 

motion to intervene and the consequent failure to file a timely notice of appeal," even ajate  

order eventually granting intervention "cannot breathe life into rights already foregone^ 967 

F.2d at 1247. The Eight Circuit noted that "[t]he chronology of events leading up to this appeal 

is crucial to our holding." Id. Jenkins, of course, is a much closer case than the instant litigation 

because the court below never granted intervention.

Alternatively, the Court may dispose of the appeal by summary affirmance because of 

untimeliness without reaching the other Rule 24(a)(2) criteria. See, eg., Alaniz, 572 F.2d at 659 

(per curiam affirmance of order denying intervention on lack of timeliness alone).

B. The White Officers Have Not Established "A Direct, Significant, Legally Protectable Interest 

in the Transaction that is the Subject o f the Case.”

After consideration of timeliness, Fed.R.Civ.P. 24(a)(2) requires that the Court consider 

whether would-be intervenors established "an interest relating to the property or transaction 

which is the subject of the action." According to the Supreme Court, "[wjhat is obviously meant 

[is that] there is a significantly protectable interest." Donaldson v. United States, 400 U.S. 517, 

531, 91 S.Ct. 534, 27 L.Ed 2d 580 (1971). In Donaldson, the Court rejected a claim of sufficient 

interest by a taxpayer in IRS enforcement proceedings to obtain business records concerning 

the taxpayer’s financial transactions from an employer and the employer’s accountant because

17



any interest could be protected in separate proceedings. Id. ("And the taxpayer, to the extent 

that he has such a protectable interest, as, for example, by way of privilege, or to the extent he 

may claim abuse of process, may always assert that interest or that claim in due course at its 

proper place in any subsequent trial."). The Court noted that "[w]ere we to hold otherwise, as 

he would have us do, we would unwarrantedly cast doubt upon and stultify the Service’s every 

investigatory move." Id.

In applying the Rule, as construed by Donaldson, this Court conducts an inquiry whether 

proposed intervenors "possess the ‘direct, significant legally protectable interest in the property 

or transaction required for intervention under Fed.R.Civ.P. 24(a)(2)’." Portland Audubon 

Society v. Hodel, 866 F.2d 302, 309 (9th Cir. 1989) (rejecting as insufficient the economic 

interest of an association of timber companies and independent contractors in a case brought 

by environmental groups challenging a government sale for harvesting of old-growth fir timber 

because their claim "has no relation to the interests intended to be protected by the 

[environmental] statute at issue"). The Court explained that when the statute that is the subject 

of the case provides no protection for the economic interest asserted, "[although the 

intervenors have a significant economic stake in the outcome of the plaintiffs’ case, they have 

pointed to no ‘protectable’ interest justifying intervention as of right." Id.; accord, Oregon 

Environmental Council v. Oregon Department o f Environmental Quality, 775 F.Supp 353,358 (D. 

Or. 1991). The Hodel Court noted, 866 F.2d at 309, that the "direct significant legally 

protectable interest" test was consistent with the Court’s earlier ruling in Sagebrush Rebellion, 

Inc, v. Watt, 713 F.3d 525, 526-28 (9th Cir. 1983), and County o f Fresno v. Andrus, 622 F.2d 

436, 437-38 (9th Cir. 1980), because the proposed intervenors in those cases asserted interests 

protected by the statutes at issue.

18



In the instant case, plaintiffs through the Consent Decree sought to vindicate the 

protections of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, which 

bars employment discrimination, inter alia, on the basis of race or national origin. The white 

officers identify themselves as "non-minority LAPD sworn officers . . .[bjeing discriminatorily 

denied employment opportunities by the operation of the discriminatory and illegal consent 

decree," Complaint-in-Intervention 3, (Supp., 3) without any specification of how the Decree 

has adversely affected their employment opportunities in any actual way. Thus, none of the 

three white officers has alleged or can allege that he has actually been denied a promotion, 

paygrade advance or coveted assignment because of the Decree. The white officers, in short, 

contend only that the Decree is facially defective, a claim made and rejected by the district 

court from which no timely appeal has been taken.

The white officers’ brief, at 15, cites Howard v. McLucas, 782 F.2d 956 (11th Cir._J986) 

("Howard F), for the proposition that the white officers have a sufficient interest "because the 

Consent Decree’s remedial provisions will adversely affect their rights.’" In Howard /, however, 

white employees were found to have an interest in challenging the setting aside of "240 target 

promotions" for black employees for which the white employees claimed to be eligible. 782 

F2d at 959. In the instant case, the Consent Decree sets aside no positions or assignments for 

minority employees, merely establishing flexible goals for qualified minority officers. Supp. 82- 

83, 84-89. The Decree also specifically disclaims impairment of any collective bargaining rights 

the white officers might have. Supp. 83. The white officers, as amici, presented the same 

arguments they now mount to the remedial provisions of the Decree: their arguments, save 

one, were rejected for good cause and that ruling is the law of the case, the white employees 

not having filed a timely appeal from the approval of the Decree.

The Howard I, decision, moreover, was questioned by the Eleventh Circuit in a 

subsequent opinion after the white employee intervenors were unable to show they were eligible 

for any of the positions set aside for black employees. Howard v. McLucas, 871 F.3d 1000, 1005 

(11th Cir. 1989) ("Howard IF) ("Employment, in and of itself, does not confer the right to

19



challenge an affirmative action plan. For example, in In re Birmingham Reverse Discrimination 

Employment Litigation, 833 F.2d 1492 (11th Cir. 1987), U.S. rehearing denied, 492 U.S. 932, 110 

S.C. 11, 106 L.Ed 628 (1989), an opinion that post dates our remand in this case, we held that 

the claim that a consent decree resulted in reverse discrimination could not accrue until those 

seeking redress were denied promotions. Id. at 1498-99.").

The interest asserted by the white officers is analogous to the interest of the taxpayer 

found indirect and insubstantial in Donaldson, 400 U.S. at 531. It too should be asserted in due 

course in separate proceedings after an actual case arises of an eligible white officer being 

discriminatorily denied a promotion or assignment on account of the implementation of the 

Decree. For instance, in United States v. City o f Chicago, 870 F.2d 1256, 1260 (7th Cir. 1989), 

a case relied on in the white officers’ brief, at 17, white officers at the top of the lieutenant’s 

promotion list were found to have a sufficient interest to challenge an order that racially altered 

the prior promotion list. No such denial has occurred in the instant case. At this juncture, the 

only conceivable interest the white officers can assert is the "purely economic" one found 

insufficient in Portland Audubon Society: Title VII, like analogous environmental public law, 

is concerned with the right to be free from discrimination, not with the generalized economic 

impact of a valid remedial scheme. The white officers’ interest in safeguarding their economic 

interest in the status quo at the LAPD is "not directly related to the litigation" for purposes of 

Rule 24(a)(2). Oregon Environmental Council, 775 F.Supp. at 358 ("Plaintiffs do not attack the 

validity of the individual permits under which the applicants for intervention operate. Rather, 

plaintiffs seek an order requiring the [defendant] to comply with the Clean Air Act by enforcing 

the terms of the implementation plan in issuing permits. Because the court finds that the 

interests of the applicants for intervention in the outcome of this litigation is not directly 

related to the litigation, any impairment of their economic interests is insufficient to give rise 

to a right to intervene").

The white officers, therefore, have failed to establish a "direct, significant legally- 

protectable interest," id., requiring intervention as of right.

20



C. No Impairment o f Any Interest o f the White Officers Results From the Approval o f the

Consent Decree.

An applicant for intervention must not only establish a direct, significant protectable 

interest, but make the related showing that "disposition of the action may as a practical matter 

impair or impede the applicant’s ability to protect their interest." Fed.R.Civ.P. 24(a)(2). As 

noted above, Donaldson, 400 U.S. at 531, found no impairment or impediment when the 

applicant "may always assert that interest or that claim in due course at its proper place in any 

subsequent [litigation]."

In the instant case, the white officers’ brief, at 16-17, asserts that "approval and 

implementation of the Consent Decree, will clearly impair the Non-minority Officers ability to 

protect their interests because ‘factual and legal determinations’ regarding the Consent Decree’s 

constitutionality will be made . . .  [a]nd a judgment will allow the unconstitutional elements of 

the consent decree to go into effect." The white officers conveniently ignore that their amicus 

brief fully presented their claims of unconstitutionality, that their claims were rejected with one 

exception by the court below, that they failed to file a timely intervention or notice of appeal 

properly to raise the issue of the merits of the Decree in this Court, and that no issues 

concerning implementation of the Decree that affect the white officers personally have arisen. 

No impairment or impeding of the white officers’ ability to protect their interests, in short, 

occurred. Any present discomfort of the white officers in the present posture of the case arises 

from the fact that the arguments they now advance were rejected below for good cause and 

they decided to acquiesce in that ruling, letting their right to appeal on the merits expire.

The white officers’ brief, at 24, also cites the 1991 amendments to Title VII, 42 U.S.C. 

§ 2000e-2(n), which prevent post-judgment collateral attacks to a Consent Decree by those who 

had prior notice and an opportunity to participate to establish that denial of intervention will 

impair or impede their ability to protect any interest. Again, it is not the approval of the 

Consent Decree that discomforts the white officers, but their acquiescence to the court’s 

adverse ruling on their claims.

21



With respect to the district court’s findings, the white officers’ brief, 25, claims that they 

did not receive "actual" notice of the fairness hearing or of facts indicating their need to 

intervene because the fairness hearing notice "was not directed to the non-minority officers nor 

were they apprised of the ramifications of the consent decree." As discussed above, the record 

undermines any such claim. One of the white officers, Mr. Pugel, admitted that he had actual 

notice of the fairness hearing notice and the Consent Decree, both of which were posted at his 

station house. Supp. 104. In addition, the Police Protective League and newspaper coverage, 

Supp. 112-20, reasonably put the white officers on notice that the white officers’ interests might 

be affected. The plain fact of the matter is that the white intervenors had sufficient notice 

because they knew enough to submit objections to the Decree at the fairness hearing which the 

lower court did consider. As this Court held in analogous circumstances: "Actual knowledge 

of the pendency of an action removes any due process concerns about notice of the litigation." 

EEOC, 897 F.2d at 1508 ("While King and Keith claim they did not receive the EEOC’s notice, 

the district court found that Keith had in fact received it, and that both objectors were familiar 

with the substance of the notice."); Farwest Steel Corp. v. Barge Sen-Span 241, 769 F.2d 620, 623 

(9th Cir. 1985) (acknowledgement of actual notice of lien "remove[es] any due process concerns 

about notice); Lehner v. United States, 685 F.2d 1187, 1190-91 (9th Cir. 1982), cert denied, 460 

U.S. 1039, 103 S.Ct. 1431, 75 L.Ed.2d 790 (1983) (claim of failure to notify a person of a 

foreclosure sale in writing rejected where "the record reveals clearly that she knew the 

foreclosure sale was imminent," "[h]er repeated efforts to delay the impending sale attest to her 

knowledge," and "[s]he makes no suggestion that the written notice would have supplied 

information not already known to her or that it would somehow facilitate judicial review of her 

claims, nor did she allege that she never received actual notice of the foreclosure sale").

As to an opportunity to be heard, the white officers submitted objections to the Decree 

as amici, the district court continued the fairness hearing to consider their objections, the lower 

court permitted the white officers to extensively brief their objections, one of the objections was 

accepted by the court and the Decree was modified. The plenary nature of the hearing

24



accorded the white officers is suggested by the extent to which their intervention papers merely 

reiterate claims made by them as amici. The white officers, therefore were "affordjed] an 

opportunity to present their objections," Mullane, 339 U.S. at 314; EEOC, 897 F.2d at 1508.

At best, the white officers merely present an alternative view of the evidence. "Where 

there are two permissible views of the evidence, the factfinder’s choice between them cannot 

be clearly erroneous." Bessemer City, 470 U.S. at 574.

With respect to the white officers’ effort to obtain an advisory opinion from the Court 

permitting future collateral challenges under Title VII, Article III courts do not sit to provide 

such advice where there is no "case or controversy." See Buckley v. Valeo, 424 U.S. 11, 96 S.Ct. 

612, 46 L.Ed.2d 659 (1976); Aetna Life Ins. Co., v. Haworth, 300 U.S. 227, 240-41, 57 S.Q. 461, 

811 L.Ed.2d 617 (1937). If such an opinion were appropriate, the record clearly establishes that 

the white employees had both "actual notice" and "a reasonable opportunity to present 

objections," as required by 42 U.S.C. § 20003-2(n)(l)(B), such that they may not collaterally 

challenge the Decree, as approved, in the future.

25



VII.

CONCLUSION

For the above reasons, the Court should dismiss the appeal and/or affirm the district 

court’s order denying intervention as of right.

Dated: June 16, 1993

Respectfully submitted,

BILL LANN LEE 
ROBERT GARCIA 
NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC.

THERESA FAY-BUSTILLOS 
MEXICAN-AMERICAN LEGAL DEFENSE AND 
EDUCATIONAL FUND

KATHRYN K. IMAHARA
ASIAN PACIFIC AMERICAN LEGAL CENTER.

By_________ ___________
Robert Garcia

Attorney for PKuptlffs-Appellees

26



STATEMENT OF RELATED CASES

Pursuant to Rule 28-2.6 of the Rules of this Court, counsel for plaintiffs-appellees know 

of no related cases pending in this Court.

ATTORNEYS FEES

Pursuant to Rule 28-23 of the Rules of this Court, plaintiffs-appellees request an award 

of reasonable attorneys fees, costs and expenses pursuant to 42 U.S.C. § 2000e-5(k).

27