Howard v. McLucas Brief for Plaintiff Class-Appellees Responding to Proposed Intervenor-Appellants

    k IN THE
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

No. 84-8999

MICHAEL HOWARD, et al.,
Plaintiff Class-Appellees, 

v .
JOHN L. McLUCAS, et al.,

Defendants-Appellees.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, et al.,
Plaintiffs-Appellees, 

v.
JOHN C. STETSON, et al.,

Defendant-Appellees.

ROBERT POSS, et al.,
Proposed Intervenor-Appellants.

On Appeal from the United States District Court 
for the Middle District of Georgia

BRIEF FOR PLAINTIFF CLASS-APPELLEES 
RESPONDING TO BRIEF OF 

PROPOSED INTERVENOR-APPELLANTS

This case is not entitled to preference in processing or 
disposition.

JULIUS LeVONNE CHAMBERS 
RONALD L. ELLIS 
99 Hudson Street 
New York, NY 10013
THOMAS A. JACKSON 
655 New Street 
Macon, Georgia 31201

CHARLES A. MATHIS, JR.
BRIAN COMBS
Mathis & Coates
909 Fulton Federal Building
Macon, Georgia 31202

BILL LANN LEE 
Center for Law in the 

Public Interest 
10951 W. Pico Boulevard 
Los Angeles, Calif. 90064 

(213) 470-3000
JOSEPH H. HENDERSON 
American Federation of 

Government Employees 
1325 Massachusetts Ave., NW 
Washington, D.C. 20005

Attorneys for Plaintiff Class-Appellees



tt

CERTIFICATE OF INTERESTED PERSONS 
Pursuant to Eleventh Circuit Rule 22(f)(2), the 

undersigned counsel of Record for Plaintiff Class-Appellees 

certifies that the following parties have an interest in the 
outcome of this case:

Trial Judge

Wilbur D. Owens, Jr.

Attorneys

Bill Lann Lee 

Juluis LeVonne Chambers 
Ronald L. Ellis 

Thomas M. Jackson 

Charles A. Mathis, Jr.
Joseph Henderson 
Anne L. Weisman 

Raphael Gomez 

Joe D. Whitley 
John L. Lynch 

Edward T. M. Garland 
Austin E. Catts 
Robin N. Loeb 

Charles A. Shanor 

James W. Howard

I.

CC152#8 i



Organizations Representing Parties
Center for Law in the Public Interest

NAACP Legal Defense and Educational Fund, Inc.
Mathis & Coates

American Federation of Government Employees, 
AFL-CIO

U.S. Department of Justice 
Garland, Nuckolls & Catts, P.C.
Warner Robins Constitutional Rights Fund, Inc. 
Floyd, Howard & Ware

Parties

Henry Taylor, Jr.
Michael Howard 

Oliver Gilbert 
Lewis T. Jones 

Wilson L. Robinson 
Vivian Cainion 

Joe Gary, Jr.

Jesse A. Williams 
David Savage 
Edward Killens, Jr.

Alfred L. Sandifer 
Thomas Scott 

Ruth W. Austin 

Walter L. Mathis 
Richard E. Austin 
Rufus Dean

CC152#8 ii



Elderidge Linder 
Mildred B. Brandful 

Leila L. Gordon 
Lois Wiggins 

Ulysses Robinson 

Fred Gray 
Angie T. McCombs 
Joseph Day 
Washington Willis 

Virtus Blalock 
Willie Frank Brown 
Harold Ross 

Willie B. Mobley 
Samuel White
Class of Black Employees, Plaintiff Class- 

Appellees
United States Air Force
Warrer Robins Air Logistics Center

CC15 2#8 iii



STATEMENT OF PREFERENCE

This case is not entitled to preference in processing 
and disposition pursuant to Eleventh Circuit Rules 11 and 
22(f) (3) .

II.

Ill.
STATEMENT REGARDING ORAL ARGUMENT 

Plaintiff class-appellees believe oral argument is 
unnecessary because the appeal can be disposed of on procedural 
intervention grounds on the basis of the Court's recent 

decisions in Reeves v. Wilkins, 754 F.2d 965 (11th Cir. 1985), 

and United States v. Jefferson, 720 F.2d 1511 (11th Cir. 1983), 
without reaching the merits.

CC152#8 IV



• /*

V

s

TABLE OF CONTENTS
IV.

I. CERTIFICATE OF INTERESTED PERSONS ...................  i
II. STATEMENT OF P R E F E R E N C E .................................iv

III. STATEMENT REGARDING ORAL ARGUMENT ...................  iv
V. TABLE OF AUTHORITIES.................................... vii

VI. STATEMENT OF THE I S S U E S ..............................  1
VII. STATEMENT OF THE C A S E ................................  1

A. The Course of P r o c e e d i n g s ...............   1
1. The Underlying Litigation .......................... 1
2. Intervention Proceedings ....................... 7
3. The Appeals............................................10

B. Statement of the F a c t s ................................... 11
C. Statement of the Standard of R e v i e w ..................... 12

Villa. STATEMENT OF JURISDICTION ..............................  12
VUIb. SUMMARY OF A R G U M E N T ..................................... 12

A. The Denial of Intervention...............................12
B. The Approval of the D ecree...............................13
IX. ARGUMENT............................................... ...

A. THE TRIAL COURT'S DENIAL OF INTERVENTION, WITHOUT 
PREJUDICE TO PARTICIPATION BY WHITE EMPLOYEES AS 
OBJECTORS AND TO THEIR FILING OF SEPARATE LAWSUITS,
WAS WITHIN THE COURT'S SOUND DISCRETION ............. 14
1. The Intervention Was Untimely Filed, Rule 24(a)

and (b) , Fed. R. Civ. Pro........................... 15
a. The Proposed Intervenors Must Carry the Heavy 
.. Burden of Demonstrating That the Lower Court
Abused Its Sound Discretion and That Its
Findings Are Clearly Erroneous .................  15

b. Factor 1: Proposed Intervenors Had Every Reason 
to Know of Their Interest in the Case Since
1975 .............................................  19

£ 3 £ e

CC152#8 v



u

Page
c. Factor 2: Substantial Prejudice to Existing

P a r t i e s ......................................... ...

d. Factor 3: Lack of Prejudice to Proposed White
Intervenors.................................... ...

e. Factor 4: Absence of Unusual Circumstances . . .  27

2. The White Employees Have an Insufficient Interest 
in the Subject Matter of the Action, Rule 24(a),
Fed. R. Civ. Pro.................................... 28

3. The Ability of the White Employees to Protect Any
Interest Is Not Impaired or Impeded, Rule 24(a) . . 32

4. Undue Delay or Prejudice to the Adjudication of
Rights of the Parties, Rule 2 4 ( b ) ................. 33

B. THE DISTRICT COURT'S APPROVAL OF A SETTLEMENT
PROPOSED BY THE PLAINTIFF CLASS, THE UNION, AND THE 
UNITED STATES DEPARTMENT OF JUSTICE WAS A PROPER 
EXERCISE OF THE COURT'S SOUND DISCRETION ............. 33
1. The Promotional Relief Provided by the Settlement

Is Authorized by L a w .............................. 34

a. The Trial Court Found That Black Employees Were 
Subject to Prima Facie Discrimination, and That 
the Promotional Relief Provided Was Tailored to 
Provide Relief as "Victim Specific" as
Possible......................................... ...

b. The District Court Committed No Legal Error . . 40
2. Local Union No. 1784 v. Stotts Does Not Prohibit

the Promotional Relief ............................  43
3. The Monetary Relief Was Not Excessive.............47

X. CONCLUSION................................

CC152#8 vi



V.

TABLE OF AUTHORITIES 
Cases

Page

Anderson v. City of Bessemer,
__ U.S. __, 105 S.Ct. 1504 (March 19, 1985) . 16, 32, 34

Britton v. South Bend School Corp.,
593 F.Supp. 1223 (N.D. Ind. 1984) ...............  45, 46

Brown v. General Services Administration,
425 U.S. 820 (1976) ..............................  35, 40

Bushey v. New York State Civil Service Commission,
__ U.S. __, 105 S.Ct. 803 (1985)......................  35

J  Deveraux v. Geary, ^  Sr fv? 2 3
596 F.Supp. 1481 (D. Mass. 1 9 8 4 ) .................  45, 46

Doherty v. Rutgers School of Law-Newark,
651 F . 2d 893 (3rd Cir. 1 9 8 1 ) ..........................32

J  EEOC v. Local 638, Sheetmetal Workers,
36 FEP Cases 1466 (2d Cir. 1 9 8 5 ) .....................  45

t Fullilove v. Kreps,
448 U.S. 448 (1980) ..............................  40, 42

Hammon v. Barry,
No. 85-0903 (D.D.C. April 11, 1985) 45

Johnson v. Railway Express Agency,
421 U.S. 454 (1975) ..................................  35

J Kromnick v. School Dist.,
739 F .2d 894 (3d Cir. 1984), cert, denied, 53
U.S .L.W. 3483 (Jan. 7, 1 9 8 5 ) .....................  45, 46

Local Union No. 1784 v. Stotts,
__ U.S. __, 104 S.Ct. 2576 (1984) . . 34, 43, 44, 45, 46

1j NAACP V. DPOA,
591 F.Supp. 1194 (E.D. Mich. 1 9 8 4 ) ...................  42

,/ NAACP v. New York,
V  413 U.S. 345, 93 S.Ct. 2591 (1973)

Palmer v. District Board of Trustees, 
748 F .2d 595 (11th Cir. 1984) .

14, 15, 21, 28, 32

42
Reed v. General Motors Corp.,

703 F .2d 170 (5th Cir. 1983) 34

CC152#8 vi i



Cases (cont'd .) Page

/

\ /

J

¥

J

Reeves v. Wilkes, 14, 18, 19, 21
754 F .2d 965 (11th Cir. 1985) ........  23, 25, 27, 28, 31

Stallworth v. Monsanto,
558 F .2d 257 (5th Cir. 1977) ........  18, 19, 20, 21, 22

Turner v. Orr, 43, 44
Eleventh Circuit No. 84-3266 (April 18, 1985) . . 45, 46

United States v. Jefferson County, 14, 19, 20, 22, 23
720 F .2d 1511 (11th Cir. 1983) . . . .  25, 26, 27, 28, 31

United Steelworkers of America v. Weber,
443 U.S. 193, 203 (1979)....................... 42, 43

Van Aken v. Young,
750 F . 2d 43 (6th Cir. 1984) .......................... 45

Vanguards v. City of Cleveland,
36 FEP Cases 1431 (6th Cir. 1985) ...............  45, 46

Wygant v. Jackson Board of Education,
746 F . 2d 1152 (6th Cir. 1984) ...................  45, 46

United States Constitution
Fifth Amendment....................................... 33f 35
Fourteenth Amendment ..................................  35, 40

S tatutes
42 U.S.C. § 2000(e) et se^., Title VII of the Civil

Rights Act of 1964, as amended ...................  passim
§ 2000e-5(g), Section 706(g) .......................  44
§ 2000e-16, Civil Rights Act of 1972 ...............  40
§ 2000e-16 (b) (1) .................................... 41

Rules and Miscellaneous
Eleventh Circuit Rules 

Rule 11 . . . .
Rule 22 (f) (3) .

Fed. R. Civ. Pro 
Rule 24(a) 
Rule 24(b) 
Rule 52 .

14, 15, 28, 29 
. 14, 15, 33
.........16

H. R. Rep. No. 92-238, Equal Employment Opportunity 
Act of 1972, reprinted in 1972 U.S. Code Cong.
& Admin. News, p. 2 1 3 7 ..................... . 41

Uniform Guidelines on Employee Selection, 5 C.F.R.
§ 300.103, 28 C.F.R. § 50.14, 29 C.F.R. Part 1607 . . 4

CC152#8 viii



VI.
STATEMENT OF THE ISSUES

1. Whether the district court abused its discretion 
in denying intervention by white employees in an employment 
discrimination class action, without prejudice to their 

participation as objectors or to their filing other separate 
lawsuits.

2. Whether the district court abused its discretion 
by resolving class action employment discrimination lawsuits 

against the United States Air Force facility at Warner Robins, 
Georgia by approving a settlement proposed by plaintiff class of 
black employees, the union for all employees, and the United 
States Department of Justice.

VII.

STATEMENT OF THE CASE 
A. The Course of Proceedings.

1. The Underlying Litigation.

The first action was filed in the federal district 

court in Macon, Georgia in 1975 by representatives of a class of 

approximately 3,200 black employees against the Warner Robins 

Air Logistics Center (Warner Robins) for racial discrimination 
in promotions pursuant to Title VII of the Civil Rights Act of 
1964, as amended, 42 U.S.C. § 2000(e) et seq. Howard v.

McLucas, M.D. Ga. Civ. Act. No. 75-168-MAC. (R. 19.) The

complaint set forth statistics showing concentration of black 

employees in lower level jobs and racially segregated work 

places. (R. 23-24.) Extensive allegations were made that

ccl52#8 1



class-wide assignment, transfer, and promotional practices were 
discriminatory. (R. 25-27.)-/ Federal defendants admitted the 
statistics, but denied any liability. (R. 88, 89.)

1* Limiting to white employees information 
regarding job vacancies in positions which offer 
better pay and opportunity to advance and which are 
predominantly white;

2. Refusing to place black employees in positions 
which offer better pay and opportunity to advance and 
which are predominantly white;

3. Restricting black employees to positions in 
certain categories of jobs, positions with less desir­
able duties, and positions with less desirable working 
conditions;

4. Preferring white employees to equally qualified 
black employees in supervisory ratings, performance 
reports, appraisals, recommendations, awards, step 
raises, merit raises, overtime, etc.;

5. Preferring white employees to equally qualified 
black employees in selection for temporary assign­
ments, details, and other duties which equip employees 
for advancement;

6. Preferring white employees to equally qualified 
black employees in selection for special training 
classes and other programs which equip employees for 
advancement;

7. Utilizing selection tests, criteria, procedures 
and devices which are not job-related or validated as 
predictors of job performance, and which discriminate 
against black employees;

8. Administering selection tests, criteria, proce­
dures and devices unequally and differentially in a 
manner which discriminates against black employees;

9. Systematically excluding black employees from 
supervisory and other high level positions;

10. Subjecting black employees to harassment, and 
to disciplinary actions and other adverse actions 
unequal to those that white employees are subject;

[footnote continued]

ccl52#8 2



A class of all past, present and future black Warner 
Robins employees was certified in 1976. (R. 278.)

In 1979, the American Federation of Government 
Employees ("AFGE"), the collective bargaining agent for all non­

management Warner Robins employees, including petitioner white 
employees, filed a class action alleging that Warner Robins' 

promotional practices discriminated against black employees in 
violation of Title VII. AFGE v. Stetson. M.D. Ga. Civ. Act. No. 

79-016. (R. 1583.) The AFGE case was consolidated with the
Howard litigation for trial in 1980. (R. 2318.)

Exhaustive discovery and numerous pretrial proceedings 
occurred over the course of many years. (See R. 4-12.) A 

pretrial order was submitted by the parties in 1982 listing 
hundreds of exhibits and over 250 witnesses.

The case, however, was not tried. The parties engaged 
in extended settlement negotiations, and a comprehensive 
proposed consent decree was submitted on June 15, 1984.

(R. 1129.) The proposed decree stated that defendants did not 
admit liability (R. 1130), but agreed to provide the following 
forms of promotional relief for plaintiff class:

1/ [continued]

TakiJ}9 reprisals or retaliating against black 
employees who protest discriminatory employment practices; and

12. Failing to correct, modify or compensate for 
discriminatory employment practices through an
!r:®Jatlve affirmative action program, upward mobility program, and other means.

(Id.)

ccl52#8 3



(1) a general nondiscrimination provision with a 
procedure for individual class members to challenge 

promotional qualification criteria that have an adverse 
impact or otherwise do not comply with the Uniform 

Guidelines on Employee Section, 5 C.F.R. § 300.103, 28 

C.F.R. § 50.14 and 29 C.F.R. Part 1607 (R. 1132-33);

(2) special promotional relief to 240 specified 
permanent positions to be filled through internal merit 

promotional processes from among qualified class members to 
every other next available vacancy on the basis of length 
of employment and supervisory appraisals (R. 1135-39);

(3) a class compensation fund of 3.75 million dollars 
to be distributed based on length of employment and the 
filing of administrative complaints of discrimination
(R. 1140-42);

(4) specific retroactive promotions to named 
plaintiffs (R. 1145); and

(5) the decree required the court to retain juris­

diction for five years to enforce the decree (R. 1135) .

After the proposal was preliminarily approved by the 
trial court, a notice of the proposal and a fairness hearing 

scheduled for August 9, 1984 was widely published. (See 

R. 1174.) Objections to the proposed decree were received from 
interested persons, including black and white employees. At 

the end of the day-long fairness hearing in which both white and 
black employees were given a full opportunity to object, the 

trial court requested that the parties submit additional 

evidence and suggested that the parties consider several

ccl52#8 4



modifications to assure that relief go only to long-term black 
employees. (Vol. 11, pp. 161—73.) Over the next three months, 
the parties submitted additional evidence (see R. 9, 1377, 1404, 

1408, 1443), and agreed to limit the promotional relief to 
employees employed prior to 1980 and monetary relief to 

employees employed prior to May 1983. (R. 1451.) The parties

filed a lengthy set of proposed findings of fact and conclusions 
of law. (R. 1453.)

On November 20, 1984, the Hon. Wilbur D. Owens, Jr., 
U.S. District Judge, approved the consent decree as a settlement 
of all issues on the basis of his review of the full factual 

record, his familiarity with the case as the sole sitting judge 
through nine years of litigation, and the parties' 

modifications. (R. 1533.) The trial court's comprehensive 

23-page opinion reviewed the relevant evidence, obtained over 
the course of nine years of d i s c o v e r y T h e  lower court 

specifically found that there was a sufficient basis for 

determining that "plaintiffs had made out a prima facie case

- The court found, inter alia, that:

17. Plaintiffs' statistics demonstrated that 
black employees were promoted to upper level jobs in 
proportions less than their representation in the 
workforce or in lower grades.

18. Plaintiffs' statistical analysis of the 
computer files for the period 1971 through 1978 showed 
statistical disparities in promotion rates out of 
grade in WG grade groupings 1-4, 5-8, and 9-12, and GS 
grade groupings 1-4, that plaintiffs' expert found to 
be statistically significant. From these statistics 
plaintiffs concluded that a total of 553 jobs had been 
lost to blacks.

[footnote continued]

ccl52#8 5



of discrimination."-/ The court also found that plaintiffs' 
recovery calculated from statistical evidence submitted to

2/ [continued]
Grade Group

No. of Standard 
Deviations

Expected Promotions 
Lost to Blacks

WG 1-4 
WG 5-8 
WG 9-12 
GS 1-4

6.01
16.03
4.80
3.56

67.98
362.00
50.06
72.67

Id. (Fluctuations of more than 2 or 3 standard 
deviations undercut the hypothesis that selections for 
promotions were being made randomly with respect to 
race. See Castenada v. Partida, 430 U.S. 482, 496 
n. 17 (1977); Hazelwood School District v. United 
States, 433 U.S. 299, 311 (1977)).

19. Plaintiffs' more conservative analysis, con­
trolling for occupational series, showed statistical 
disparities in the same WG grade groupings that plain­
tiffs found to be statistically significant, but no 
statistically significant disparities in any GS grade 
grouping. From this analysis, plaintiffs concluded 
that a total of 234 jobs had been lost to blacks.

Grade Group
No. of Standard 

Deviations
Expected Promotions 

Lost to Blacks
WG 1-4 
WG 5-8 
WG 9-12

3.53
8.19
3.75

36.68
162.84
34.74

(R. 1544-45.)

3/
7. . . .  Plaintiffs statistical analyses are a

sufficient basis from which the court could infer that 
plaintiffs had made out a prima facie case of dis­
crimination. Plaintiffs' unrebutted statistics, which 
show disparities especially in WG grade groupings 1-4, 
5-8, and 9-12, are a sufficient basis from which to 
infer that blacks were concentrated in low level jobs 
and certain occupations. Plaintiffs' unrebutted 
analysis of defendants' promotion patterns is suffici­
ent from which to infer that there was a disparity in 
promotions between blacks and whites at Warner Robins.

[footnote continued]

ccl52#8 6



the court, "approximates the range of possible recovery."
(R. 1551-52.)

2. Intervention Proceedings.

Appellant Robert Poss and other white Warner Robins 
employees, did not make any appearance in the case until 

July 31, 1984 with the filing of intervention papers in the 
district court. (R. 1179-1289.) These papers filed on behalf 

of an organization called the Warner Robins Constitutional 
Rights Fund, Inc. and individual employees, argued that 
(1) white employees were unreasonably denied promotional 
opportunity by the proposed decree's provisions; (2) the 

promotional relief was inconsistent with Local Union No. 1784 v.
Stotts, --- U.S. ___, 104 S.Ct. 2576 (1984) because defendants

did not admit liability in the decree and because the relief was 
not structured sufficiently to identify black victims of 

discrimination; and (3) white employees' failure to intervene 
earlier was excusable. (R. 1187.)

Upon receiving the intervention papers, the trial 
court immediately scheduled a hearing and ruled that the white

— [continued]

8 . The court finds that plaintiffs' statistical 
evidence to which defendants, for purposes of this 
Consent Decree, have offered no evidence in rebuttal, 
establishes that plaintiffs have a sufficient proba­
bility of success on the merits to warrant entry of 
this Decree. It was reasonable for the parties to 
settle the litigation by providing plaintiffs class­
wide promotional relief and compensation for JLost 
promotions.

(R. 1550-51.)

ccl52#8 7



employees would be permitted to participate fully in all future 
proceedings, including the upcoming fairness hearing on the 
decree, as objectors. (Vol. 10, p. 52.) Without objection by 

counsel for proposed intervenors, the court denied the 
intervention of the organizational entity. (Vol. 10, pp. 3-5;

R. 1176.) The white employees did in fact participate fully in 
the proceedings, including presentation of oral testimony at the 
fairness hearing, and submission of affidavit evidence, proposed 
findings, and legal briefs. (See Vol. 11, R. 1414.)

The motion to intervene of the individual white 
employees was held in abeyance and ultimately denied on 
November 19, 1984, the day before the Court approved the amended 
proposed consent decree. (R. 1526.) First, the trial court 

found that white employees were not adversely affected by the 

decree other than in a de minimus way in light of the specific 
structure of Warner Robins' promotional system under which 

employees have no vested right^Jx^entitlement to promotion.

4/
Movants have no vested right or entitlement to a 

promotion under the Warner Robins promotion process. 
Warner Robins does not operate under a seniority 
system. A complicated computer ranking process 
screens all employees for potential promotions. No 
job announcements are posted. Employees do not apply 
for promotions, and no employee has an enforceable 
basis for considering himself as "next in line" for 
any future opening. Clearly, the Consent Decree does 
not impair any vested rights of movants.

Movants do have a generalized expectation of 
being considered with perhaps hundreds of others for 
promotions. But the Consent Decree, as a practical 
matter, has only a de minimus effect upon this general 
expectancy, as the Decree affects only a small frac­
tion of the total number of promotions which will

[footnote continued]

ccl52#8 8



As a result, they had failed to demonstrate sufficient interest 
in the litigation under Rule 24(a) Fed. R. Civ. Pro. The court 
also denied intervention on the independent ground that the 

intervention was untimely filed and unnecessary to preserve the 
interests of white employees who may still raise the same issues 

in subsequent litigation on the basis of actual rather than 
speculative claims of injury.—^ As a result, the

— [continued]
occur during the life of the promotional provision of 
the Decree. The parties estimate that all 240 promo­
tions set aside for blacks will be filled within two 
years. During this two-year period, 3600 promotions 
are anticipated at Warner Robins. Thus, the Consent 
Decree affects only 6-1/2% of the total promotions 
expected; movants will be entitled to compete for the 
remaining 93-1/2%, or 3366, promotions.

Under these circumstances, movants have failed to 
demonstrate that the Consent Decree will adversely 
affect their rights. Movants have no entitlement to 
any of the 240 promotions. The effect upon their 
general expectancy is de minimum [sic] at most. 
Accordingly, movants do not have standing to intervene 
for the purpose of challenging the promotional provi­
sions of the Consent Decree.

(R. 1528.)

5/
Movants have had every reason to know of this 

suit since its inception in 1975. The present parties 
have labored to reconstruct the record of thousands of 
personnel actions and have identified as best as 
possible the actual impact of past discrimination. 
After extensive statistical analyses and thorough 
negotiation by and among eminently qualified Title VII 
attorneys a settlement has been reached. The present 
parties would be substantially prejudiced by movants' 
intervention at this stage. Movants, on the other 
hand, would not be prejudiced by denial of interven­
tion. They may commence a separate lawsuit if they so 
desire (assuming subsequent events result in a more 
concrete demonstration of standing), as they are not 
precluded by the Consent Decree. Moreover, they were

[footnote continued]

ccl52#8 9



intervention failed to meet the timeliness requirement of both 
Rule 24(a) and (b). (id.)

3. The Appeals.

Appellant white employees have filed an appeal 

challenging both the denial of intervention and the entry of the 
decree. They have made no efforts to expedite the appeal below. 
The white employees' application for a stay pending appeal was 
denied by the district court on December 19, 1984.-/ A panel of 
the Eleventh Circuit (Chief Judge Godbold and Judges Kravitch 

and Hatchett) denied the stay application without opinion and 
without dissent on January 31, 1985. Justice Powell, as Circuit 
Justice, denied the stay application on February 22, 1985.

— [continued]
allowed to be present and cross-examine witnesses at 
the fairness hearing held on August 9, 1984. Their 
objections have been filed and will be considered by 
the court. There are no unusual circumstances 
demanding intervention. Indeed, the court perceives 
the fact that the Decree affects only 6-1/2% of all 
promotions as a circumstance militating against 
intervention. . . .  [M]ovants' motion to intervene is 
neither timely nor necessary for the preservation of 
movants' asserted rights.

(R. 1530-31.)

—/ The district court ruled that:

This court hereby determines that movants have 
little or no likelihood of prevailing on the merits of 
their appeal. Further, in weighing the relative hard­
ships, this court determines that more injury will 
accrue to the plaintiff class if a stay is issued than 
will accrue to movants if a stay is denied. This 
determination is based upon movants' inability to 
demonstrate any vested right to the promotions at 
issue in this litigation.

(R. 1579-80.)

ccl52#8 10



Thirty-one black employees dissatisfied with 
individual relief provided by the decree have also filed an 
appeal. Plaintiff class-appellees oppose that appeal in a 

separate brief. (Brief for Plaintiff Class-Appellees Responding 
to Brief of Individual Plaintiffs-Appellants.) The instant 
brief addresses only the appeal filed by proposed white 
intervenors.

B. Statement of the Facts.

The white employees' claims that the decree was 

illegal and unreasonable were considered and rejected by the 
trial court in its opinion approving the decree:

First, the consent decree is not "pro­
scribed" by law. Contrary to would-be 
intervenors' claims, the promotional relief 
of the Consent Decree is as "victim 
specific" as factually possible under the 
circumstances. The parties have fairly 
demonstrated that the relief is targeted to 
those positions actually lost by blacks.
The actual victims cannot be identified due 
to the very nature of the Warner Robins 
promotion scheme, i.e ., there are no 
applicants for promotions.

Second, the promotional relief does not 
unreasonably trammel the interests of white 
employees. As the statistics demonstrate, 
the positions to be filled by blacks should 
have been filled by blacks years ago. The 
promotions set aside for blacks will be 
filled within approximately two years. More 
importantly, the 240 promotions set aside 
for blacks represent only a fraction of the 
total number of promotions anticipated 
during this two-year period —  3,600 promo­
tions will most likely take place; only 240, 
or 6.5%, of those are set aside for class 
members. The interests of white objectors 
are not unreasonably affected.

(R. 1554-55.)

CC152#8 11



C • Statement of the Standard of Review.

An abuse of discretion standard applies to review of 
denial of the intervention, and to the approval of the consent 

decree because the appeal turns on factual determinations rather 
than legal principles.

Villa.

STATEMENT OF JURISDICTION

The Court has jurisdiction under 28 U.S.C. § 1291.

VUIb.
SUMMARY OF ARGUMENT

A. Denial of Intervention.

An intervention as of right or permissive intervention 
were untimely under the standards enunciated by this Court last 
month in Reeves v. Wilkes, 754 F.2d 965 (11th Cir. 1985). The 

district court did not abuse its sound discretion^and its findings 
on untimeliness are not clearly erroneous. Proposed intervenors 
had every reason to know of their interest in the case since 1975; 
the parties will suffer substantial prejudice; would-be inter— 
venors will suffer no prejudice because they can assert their 

claims later; and no unusual circumstances justify intervention.

Nor can abuse or clear legal error be shown as to the 
lower court's independent finding that the white employees have an 
insufficient interest in the subject matter of the action to qual­
ify for intervention as of right. Nor is the ability of proposed 

intervenors to protect any interest impaired or impeded. Permis­

sive intervention would have been inappropriate because of undue 

delay or prejudice to the adjudication of the parties' rights.

CC152#8 12



B. The Approval of the Decree.

The Court need not reach the merits of proposed 

intervenors' challenge to the merits of the settlement in light 
of the lower court's correct decision to deny intervention.

However, the lower court's approval of the settlement 
is not an abuse of discretion, and the court's findings in 
support of approval are not clearly erroneous.

The promotional relief is authorized by law. The 
lower court specifically found that black employees were subject 
to £ rima facie discrimination, and that the promotional relief 
was as "victim specific" as possible in light of the 

peculiarities of Warner Robins' promotional system and 

recordkeeping. The relief is fully consistent with United

Steelworkers of America v. Weber, 443 U.S. 193 (1979), and other 
authority.

This court's decision earlier this month in Turner v. 
Orr, Eleventh Circuit No. 84-3266 (April 18, 1985), pp. 12-19, 

disposes of proposed intervenors' claims that Local Union No.

1748 v. Stotts applies. The record, in any event, establishes 
that the promotional relief comports with Stotts.

The court's approval of the monetary relief was an 
exercise of its sound discretion, and the court's supporting 
findings are not clearly erroneous. Proposed intervenors, who 

in any event have no interest in the matter, cannot demonstrate 
that the monetary relief was too large.
/

/
/

CC152#8 13



ARGUMENT
This appeal can be disposed of on procedural grounds 

without reaching the merits of the white employees' objections 
to the settlement. The district court's denial of either 

intervention as right (Rule 24(a), Fed. R. Civ. Pro.) or 

permissive intervention (Rule 24(b)) was a proper "exercise of 
its sound discretion," NAACP v. New York, 413 U.S. 345, 93 S.Ct. 
2591 (1973). The intervention ruling should not be disturbed, 
and the merits reached, only if this Court finds that that 

discretion was abused. If the Court should reach the merits, 
however, the record demonstrates no abuse of discretion in the 
district court's approval of the settlement proposed by the 

plaintiff class, the union of all Warner Robins employees, and 
the United States Department of Justice.

A. THE TRIAL COURT'S DENIAL OF INTERVENTION, WITHOUT PREJUDICE 

TO PARTICIPATION BY WHITE EMPLOYEES AS OBJECTORS AND TO 
THEIR FILING OF SEPARATE LAWSUITS, WAS WITHIN THE COURT'S 
SOUND DISCRETION.

The applicable standard of review was set forth by 
this Court last month in Reeves v. Wilkes, 754 F.2d 965, 968 
(11th Cir. 1985).

The question whether an application for 
intervention is timely is largely committed 
to the district court's discretion, and its 
determination will not be disturbed on 
appeal absent an abuse of discretion. NAACP 
V. New York, 413 U.S. 345, 93 S.Ct. 2591, 37 
L.Ed.2d 648 (1973); United States v.
Jefferson County, 720 F.2d 1511 (11th Cir.
1983) .

IX.

CC152#8 14



After deliberate consideration over several months, 
the court below denied intervention on two independent grounds, 
i- e • • the proposed white intervenors' interests were not 
adversely affected by the decree and the intervention was 

untimely filed. We first discuss the threshold timeliness 

question that applies to both Rule 24(a) and (b) intervention. 

See NAACP v. New York, 413 U.S. at 369. We then discuss the 
lack of adversely-affected interests (Rule 24(a)), and two 
grounds not specifically analyzed by the court, i,e., that the 
ability of white employees to protect their interests is not 

impaired (Rule 24(a)), and that intervention would cause undue 
delay or prejudice to the original parties (Rule 24(b)).

1* The Intervention Was Untimely Filed, Rule 24(a) 
and (b), Fed. R. Civ. Pro.

a • The Proposed Intervenors Must Carry the Heavy 
Burden of Demonstrating That the Lower Court 

Abused Its Sound Discretion and That Its Findings 
Are Clearly Erroneous.

In NAACP v. New York. 413 U.S. at 365-66, the Supreme 
Court stated the general principles that apply to the "task 

. . . [of] determin[ing] whether, upon the facts available to it 
at that time, the court erred in denying the appellants' motion 
to intervene."

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

CC152#8 15



must be denied. Thus, the court where the 
action is pending must first be satisfied as 
to timeliness. Although the—porntr to—whirch 
thg— suit has progressed—is one factor— in- the 
^termination of timeliness, it is not 
sOTely disans i five . 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.) in reviewing the lower court's

determination of untimeliness, the Supreme Court analyzed facts
that n[t]he court could reasonably have concluded" supported its
decision. 3[d. at 366 (emphasis added) .

Where, as here, the district court has made detailed
findings of fact in support of its conclusion that the

intervention was untimely, these findings should not be

disturbed unless they are clearly erroneous. The Supreme Court

has recently affirmed the heavy burden imposed on appellants

seeking to disturb findings that "[fjindings of fact shall not
be set aside unless clearly erroneous," Rule 52, Fed. R. Civ.
Pro* Anderson v. City of Bessemer, ___ U.S. ___, 105 S.Ct.
1504, 1511-12 (March 19, 1985).

"[A] finding is 'clearly erroneous' when 
although there is evidence to support it, 
the reviewing court on the entire evidence 
is left with the definite and firm 
conviction that a mistake has been 
committed." United States v. United States 
Gypsum Co.. 333 U.S. 364, 395, 68 S.Ct.
525, 542, 92 L.Ed. 746 (1948). This 
standard plainly does not entitle a 
reviewing court to reverse the finding of 
the trier of fact simply because it is 
convinced that it would have decided the 
case differently. The reviewing court 
oversteps the bounds of its duty under 
Rule 52 if it undertakes to duplicate the 
role of the lower court. "In applying the 
clearly erroneous standard to the findings

CC152#8 16



of a district court sitting without a jury, 
appellate courts must constantly have in 
mind that their function is not to decide 
factual issues de novo." Zenith Radio Corp. 
v. Hazeltine Research, Inc., 395 U.S. innr 
123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 
(1969). if the district court's account of 
the evidence is plausible in light of the 
record viewed in its entirety, the court of 
appeals may not reverse it even though 
convinced that had it been sitting as the 
trier of fact, it would have weighed the 
evidence differently. Where there are two 
permissible views of the evidence, the 
factfinder's choice between them cannot be 
clearly erroneous. United States v. Yellow
Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177,--
179, 94 L.Ed. 150 (1949); see also Inwood 
Laboratories, Inc, v. Ives Laboratories, 
ln£i, 456 U.S. 844, 102 S.Ct. 2182, 72 
L.Ed.2d 606 (1982). 7/

7/
. Court further noted that the clearly erroneous

rule maximizes the expertise in factfinding that trial judges 
develop, and avoids unnecessary duplication of judicial resources. J

The rationale for deference to the original 
findings of fact is not limited to the superiority of 
the trial judge's position to make determinations of 
credibility. The trial judge's major role is the 
determination of fact, and with experience in 
fulfilling that role comes expertise. Duplication of 
the trial judge's efforts in the court of appeals 
would very likely contribute only negligibly to the 
accuracy of fact determination at a huge cost in 
diversion of judicial resources. in addition, the 
parties to a case on appeal have already been forced 
to concentrate their energies and resources on 
persuading the trial judge that their account of the 
facts is the correct one; requiring them to persuade 
three more judges at the appellate level is requiring 
too much. As the Court has stated in a different 
context, the trial on the merits should be "the 'main 
event' . . .  rather than a 'tryout on the road.'" 
Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 
2508, 53 L.Ed.2d 594 (1977).

Id. Therefore, the fact that the court below was the sole 
sitting judge from 1975 to the present and that the lower court 
took great pains in analyzing intervention and settlement issues
c o u r t ltl0nal reasons to defer to the findings of the lower

CC152#8 17



Moreover, the lower court specifically made the
factual inquiries that this Court has stated are necessary to
assess a claim of timeliness for a Rule 24 intervention. The
Court has spelled out four factors that must be considered in
assessing timeliness:

(1) the length of time during which the 
intervenor actually knew or reasonably 
should have known of his interest in the 
case before he petitioned for leave to 
intervene; (2) the extent of the prejudice 
that the existing parties to the litigation 
may suffer as a result of the would be 
intervenor's failure to apply for interven­
tion as soon as he actually knew or reason­
ably should have known of his interest in 
the case; (3) the extent of the prejudice 
that the would be intervenor may suffer if 
his petition for leave to intervene is 
denied; (4) the existence of unusual cir­
cumstances militating either for or against 
a determination that the applicant is 
timely.

Reeves v. Wilkes, 754 F.2d 965, 968-69 (11th Cir. 1985) 
(intervention untimely); United States v. Jefferson County, 720 

F •2d 1511 (11th Cir. 1983) (intervention untimely); Stallworth 

v. Monsanto, 558 F.2d 257 (5th Cir. 1977) (intervention timely). 
All three cases, as here, concerned the efforts of white 

employees to challenge civil rights settlements. The district 
court had the benefit of Jefferson County and Stallworth cases; 

the subsequently-decided Reeves case confirms that the district 
court's ruling is correct.

The district court gave the intervention application 

careful and deliberate consideration. After receiving the 
motion papers, a hearing was immediately scheduled. The court 
deferred an immediate decision, but permitted the white 

employees to participate in the fairness hearing and further

CC152#8 18



proceedings. Only after three and a half months did the court 

issue its careful and detailed findings that the intervention 
was untimely filed. The court's review of the record is fully 

consistent with the Reeves-Jefferson County-Stallworth trilogy: 
the court s findings of fact under each of the four factors are 

fully supported. Furthermore, the lower court was presented 
with, considered, and rejected the claims now presented to this 
Court.

b* Factor 1; Proposed Intervenors Had Every Reason

to Know of Their Interest in the Case Since 1975.
With respect to the length of time the proposed 

intervenors actually knew or reasonably could have known of 

their interest in the case before they petitioned, the lower 

court, on the basis of his familiarity with the litigation as 
the sole sitting judge for nine years, specifically found that: 
Movants have had every reason to know of this suit since its 
inception in 1975." (R. 1530.) This finding is fully supported
by the record.

Hirst, the "interest in the case" asserted by the 
white employees was a generalized interest in maintaining their 

preexisting promotional opportunities purportedly threatened by 
the promotion of class members.—^ Their motion to intervene

g y
~ Claims that contractual and property interests derived 

from the collective bargaining agreement are adversely affected 
by the settlement are incorrect. The signatories to the 
collective bargaining agreement —  Warner Robins and the AFGE —  
are also signatories to the Consent Decree. (See infra.)

CC152#8 19



states that the then-proposed consent decree "interferes with 
and violates their employment opportunities, including their 
opportunities for advancement, promotion, lateral and upward 
mobility and compensation." (R. 1179.) Such a generalized 

interest was not implicated for the first time by the consent 

decree or by its special features. White employees have known 

or should have known since the initial filing of the Howard case 

that their advancement and promotional opportunities might be 
adversely impacted by the lawsuit. The complaint, filed 

October 31, 1975, plainly alleged that black employees as a 
class were systematically denied promotions that went to whites 
and preferential treatment accorded whites. (See supra 

note 1.) (R. 30.) The complaint sought classwide promotional
relief and back pay for blacks. The district court's class 

certification order of October 1976 certainly should have 
resolved any doubt that the generalized interest of white

employees in maintaining the status quo might be affected by the 
lawsuit.

"[MJere knowledge of the pendency of an action, 
without appreciation of the potential adverse effect 

adjudication of that action might have on one's interests, does 
not preclude intervention," Jefferson Countv. 720 F.2d at .

Stallworth, 558 F .2d at 264-65^ the pendency of a class action 
by black Warner Robins employees was sufficient in this case to 

put proposed intervenors on notice that their advancement and 

promotion opportunities might be affected. The relief spelled 
out in the consent decree should not have surprised white 
/

CC152#8 20



employees; it was presaged by the complaint.-/

Second, the white employees never said that they did
not know of the Howard and AFGE cases. That would have been

incredible. Warner Robins is the single largest employer in the
Macon, Georgia area. (R. 23.) This action was the largest

Title VII class action ever filed in the Middle District of

Georgia.— ^ Class action discovery was underway from 1976 to

1983. Indeed, one of the proposed intervenors was deposed in
the course of the lawsuit. (R. 12, deposition of Louis Calleo,
June 6, 1983.) All the white employees argued was that "the
date upon which the proposed intervenors became aware of the
pendency of the action is irrelevant." (R. 1193.) As discussed

above, that was not a credible excuse for untimely filing given
the generalized and long-standing nature of their interest in

the case. As this Court stated in Reeves, 754 F.2d at 970:
While the intervenors may not have been pro­
vided formal notice of the decree's formula­
tion or content, informed members of the 
community had ample opportunity to be 
apprised of the substance of [plaintiffs'] 
action.

In Stallworth, 558 F.2d at 267, the mere pendency of a 
Title VII action was not enough to put white employees on notice 
that the lawsuit might replace a departmental seniority system 
with a plant-wide seniority system. The interest of white 
employees in Stallworth was not the foreseeably affected gener­
alized interest asserted here; it was an interest in a depart­
mental seniority system that intervenors could not reasonably 
anticipate would be affected earlier.

— / Although not reflected in the record, filing of the 
action and class certification were the subject of widespread 
newspaper reporting. Compare NAACP v. New York. 413 U.S. at 367 
("The court could reasonably have concluded that appellants knew 
or should have know of the pendency of the . . . action because 
of an informative [newspaper] article'); Reeves, 754 F.2d at 
969-70 (Macon Telegraph and Macon News coverage of Bibb Countv 
Sheriff's Department Title VII case).

ccl52#8 21



Third, white employees claimed that they were 
justified in not appearing earlier because the parties did not 
affirmatively advise them of the litigation. (R. 1191 n.l.) No 
such affirmative obligation on parties to a lawsuit exists. It 
is clear that proposed intervenors can point to no special 

circumstances, such as the parties' opposing notification in 
Stallworth, 558 F .2d at 267, that prevented them from timely 
action to protect their generalized interest in preserving 
preexisting promotional opportunities for white employees.

Fourth, proposed intervenors' brief seeks to 

distinguish Jefferson County, where intervention was found 
untimely, and to bring the case under Stallworth, where 

intervention was found timely. (Brief for Proposed Intervenor- 
Appellants, pp. 9-11.) The short answer is that the district 
court was presented with just such claims and resolved them 

against white employees. (R. 1191-96.) The decision of the 
lower court, which was thoroughly familiar with the factual 

record and relevant authority, is entitled to substantial 
d e f e r e n c e ^

/

/

— ^ Jefferson County is not distinguishable because 
"appellants were a coherent, organized group." A generalized 
interest in the promotional status quo is not peculiar to any 
particular organizational entity; it is an interest that the 
individual proposed intervenors should have asserted, as the 
court found, as early as 1975. The Stallworth intervenors, 
unlike the white employees here, asserted an interest in their 
seniority system that they could not reasonably have known would 
be affected by the mere filing of the lawsuit. Here, white 
employees should have known that the class action pleaded might 
affect their generalized promotional opportunities.

ccl52#8 22



c • Factor 2: Substantial Prejudice to Existing
Parties.

The lower court specifically found that the parties
will be substantially prejudiced by the failure of white

employees to intervene as early as 1975 when they knew or should
have known of their interest in the case.

The present parties have labored to recon­
struct the record of thousands of personnel 
actions and have identified as best as pos­
sible the actual impact of past discrimina­
tion. After extensive statistical analyses 
and thorough negotiation by and among emin­
ently qualified Title VII attorneys a set­
tlement has been reached. The present 
parties would be substantially prejudiced by 
movants' intervention at this stage.

(R. 1530.)

This finding is fully consistent with this Court's 
rulings. "in this case, if intervention is allowed, time and 
effort expended in formulating the settlement to remedy past 

discrimination will be for naught." Reeves, 754 F.2d at 971. 

"The court's grant of their motion to intervene would plainly 
have prejudiced the existing parties, since it would have 

nullified the[] negotiations . . . and allowed a pattern of past 

discriminatory practices to continue." Jefferson County, 720 
F •2d at 1517. Moreover, as the court found, not only would the 
fruits of a complex negotiation be nullified, but almost a 

decade of discovery and trial preparation that brought the 
parties to the conference table as well.

Proposed intervenors respond in their brief that "this 
concern is readily remedied by granting limited intervention" 

for the purpose of objecting to the proposed settlement and not

ccl52#8 23



to contest liability. (Brief of Proposed Intervenors- 
Appellants, pp. 12-13.) This claim is entirely refuted by the 

record.
First, white employees did not in fact limit their 

intervention. Their actions were entirely at odds with a 
limited intervention. They stated that they objected not only 
to specific provisions of the proposed decree, but to any relief 
to black employees at all because of the claimed absence of 

liability. (R. 1257; Vol. 10, pp. 20-21; Vol. 11, pp. 146-47.) 
They not only filed unrestricted intervention papers, but moved 
for a continuance of the fairness hearing for "at least 

120 days" in order to conduct far-ranging discovery.
(R. 1277.) Nothing presented to the lower court remotely 
suggested a request for a "limited intervention."

Second, if white employees sincerely desire only an 

opportunity to be heard on their objections to the Decree, this 
appeal is completely frivolous. The district court expressly 

permitted the proposed intervenors to participate in the 
fairness hearing and all subsequent proceedings for the very 
purpose of presenting their objections to the proposed decree. 

Proposed intervenors in fact fully availed themselves of the 

opportunity to object, and their counsel forcefully and 

skillfully presented objections, put on evidence, conducted 
cross-examination of the parties' witnesses, filed affidavits, 

and otherwise fully participated.
Third, white employees try to pass off objections to 

major substantive provisions of the decree as a "limited 

intervention," i.e., the promotional relief and class

ccl52#8 24



compensation fund. If these objections are successful, they 
would gut a decree that ended a decade of litigation and 

provides substantial relief to the class. The parties would, in 
all likelihood, be forced to trial of this decade-old case 
involving a class of 3,200 blacks and a facility of 15,000 

employees. That, as the court found, would "substantially 
prejudice" the parties.

d . Factor 3: Lack of Prejudice to Proposed White 
Intervenors.

The district court specifically found that white
employees would not be prejudiced by denial of intervention
because the intervention was not necessary for the preservation
of their asserted rights:

Movants . . . would not be prejudiced by 
denial of intervention. They may commence a 
separate lawsuit if they so desire (assuming 
subsequent events result in a more concrete 
demonstration of standing), as they are not 
precluded by the Consent Decree.

(R. 1530.) The findings of the district court are fully in
accord with Jefferson County and have been confirmed by the

subsequently-decided Reeves. "'Where the movant has no identity
of interest with a party and thus could not be bound . . . , we

would find no prejudice sufficient to give weight to the third

factor.'" Reeves, 754 F.2d at 971, quoting Jefferson County,
720 F . 2d at 1517.— '/

Reeves, 754 F .2d at 971-72, authoritatively reiterates 
the teaching of Jefferson County that unsuccessful white employ­
ee intervenors suffer no prejudice and that intervention is

[footnote continued]

ccl52#8 25



The lower court also specifically found that white
employees are not prejudiced because they in fact did have the
opportunity to present their claims in the instant case.

Moreover, [movants] were allowed to be 
present and cross-examine witnesses at the 
fairness hearing held on August 9, 1984.
Their objections have been filed and will be 
considered by the court.

(R. 1530-31.) As we show infra, white employees have an 
interest in the subject matter of the case that is so specu­

lative that it is insufficient to warrant intervention as of 
right.

While acknowledging that Jefferson County permits 
nonparties to collaterally attack a consent decree in this 

Circuit, white employees argue that they may be barred from

— ^ [continued]

unnecessary because they may bring a subsequent independent
action.

By definition, a consent decree only binds those who 
consent, either expressly or impliedly. Jefferson 
County, 720 F .2d at 1518 n.19. While the intervenors' 
interest may not have been adequately represented by 
an existing party in the original litigation, the 
[would-be intervenors] could alternatively institute 
an independent lawsuit and assert the specific viola­
tions of their rights. "The consent decree would only 
become an issue if the defendant attempted to justify 
its conduct by saying that it was mandated by consent 
decree." Jefferson County. 720 F.2d at 1518. "We do 
not preclude an action having a burden, financial or 
otherwise, on a consent decree as an 'impermissible 
collateral attack' to the extent that it deprives a 
non-party to the decree of his day in court to assert 
the violation of his civil rights." Jefferson County, 
720 F.2d at 1518. "The burdens of cost and delay the 
would be intervenor would suffer if required to bring 
a future lawsuit do not constitute prejudice under the 
third Stallworth factor. He would have those burdens 
at any time he sought to enforce his rights in court." 
Jefferson County. 720 F.2d at 1517 n.13.

ccl52#8 26



subsequent litigation because they participated in the lawsuit 
before final judgment. (Brief for Proposed Intervenors- 
Appellants, p. 14.) Nothing in Reeves or Jefferson County 

suggests such a bar, and such a bar would not apply where the 

would-be intervenors admitted that "there has not yet been any 

adverse impact" upon white employees (R. 1192), and the court 
found that proposed intervenors' claims of injury were so 

speculative that they are premature and can be decided only 

after concrete claims of injury are subsequently presented.
(See infra.)

Claims of inefficiency and impracticability of a 
subsequent lawsuit are also erroneous. (See Brief for Proposed 
Intervenors-Appellants, pp. 15-16.) Article III permits only 
persons who have suffered a concrete injury to bring federal 
lawsuits no matter how efficient a facial challenge to a decree 
may be. The purported difficulty with challenging Warner 

Robins' promotional system as discriminatory in any subsequent 
action is overstated: white employees —  like other 

plaintiffs —  may conduct discovery to determine if they have 
actually been subject to alleged discrimination. They —  like 

other Title VII plaintiffs —  may seek such prospective and 

compensatory relief as is appropriate for an alleged 
discriminatory denial of promotion.

e • Factor 4: Absence of Unusual Circumstances.
The lower court specifically found that:

There are no unusual circumstances demanding 
intervention. Indeed, the court perceives 
the fact that the Decree affects only 6-1/2%

ccl52#8 27



of all promotions as a circumstance militat­
ing against intervention.

(R.' 1531.) This finding that no unusual circumstances exist is 
undisputed. Compare Reeves, 754 F.2d at 972; Jefferson County, 
730 F .2d at 1519.

*  *  *

The lower court's finding of untimeliness fully 
complies with this Court's authoritative rulings on the factors 
for determining the timeliness of intervention. Reeves; 

Jefferson County. The lower court's ruling is supported by 
facts "the court could reasonably have concluded" supported its 

decision, and, therefore, the ruling should "not be disturbed on 
review." NAACP v. New York, 413 U.S. at 365-66.

2. The White Employees Have an Insufficient Interest in

the Subject Matter of the Action, Rule 24(a), Fed. R.
Civ. Pro.

The district court found that "movants have failed to 

demonstrate that the Consent Decree will adversely affect their 

rights" and "do not have standing to intervene." (R. 1528-29.) 

Accordingly, would-be intervenors failed to demonstrate an 
"interest in the property or the transaction which are the 

subject of the action" to satisfy Rule 24(a), Fed. R. Civ. Pro. 
for purposes of intervention as of right.

The district court found that: "Movants have no vested 

right or entitlement to a promotion under the Wacner Robins 
promotion process." (R. 1528.) The court explained that:

ccl52#8 28



Warner Robins does not operate under a seniority system; a

computer-ranking process screens all employees for potential
promotion; job announcements are not posted; employees do not

apply for promotion; and "no employee has an enforceable basis

for considering himself as 'next in line' for any future

opening." (Id.) As a result, "the Consent Decree does not
impair any vested rights of movants." (Id.) White employees,
in short, do not have any legal interest in the "property or
transaction which are the subject of the action." Rule 24(a).

White employees' claim that they have contractual and
property interests derived from a collective bargaining

agreement and civil service regulation (R. 1210-12) is absurd.
The same signatories to the Master Labor Agreement between the
Air Force Logistics Command and the AFGE are also signatories to
the very settlement that they oppose. Paragraph 21 of the
Consent Decree, in any event, expressly provides that

[t]his Order and Decree shall not be con­
strued in any way to be a requirement that 
defendants take any action which is in con­
flict with Federal personnel regulations, 
job classification and qualification stand­
ards, mandatory or priority placement pro­
cedures, or manpower authorization unless 
the Court expressly determines that such 
action is necessary to the enforcement of 
the Order and Decree after considering all 
reasonable alternatives.

(R. 1144.)

Furthermore, the lower court found that the white 

employees "do have a generalized expectation of being considered 
with perhaps hundreds of others for promotions," but that the 
Decree," as a practical matter, has only a de minimus effect 

upon this general expectancy, as the Decree affects only a small

ccl52#8 29



fraction of the total number of promotions which will occur 

during the life of the promotional provisions of the Decree."
(R. 1528.) In particular, the court determined that "the 
Consent Decree affects only 6-1/2% of the total promotions" 

expected in the two years the parties estimate implementation

take, and that " [mjovants have no entitlement to any of the 
240 promotions." (R. 1528-29.)

The proposed intervenors argued that the expectations 
of specific white employees would be defeated by the proposed 

settlement. In particular, they pointed to an indefinite number 
of whites eligible for promotion to the 240 jobs designated for 
black class members, and submitted affidavits from specific 
white employees whose promotional rights would allegedly be 
unfairly affected by the Decree. The actual promotional 

prospects of these nine white employees were fully discussed in 
the affidavit of Warner Robins' personnel director (R. 1443) and 
the parties proposed Order Granting Final Approval to the 

Consent Decree (R. 1453, 1472-76 mi 74-82), which the district 

court adopted. (R. 1539 n.l.) This individual-by-individual 
discussion fully supports the court's finding that no Warner 

Robins employee has any specific promotional expectancy, and 

that the would-be intervenors could not demonstrate that they 
personally would be adversely affected.— ^

For example, Robert Poss, the lead proposed white 
intervenor, claims that he personally would be adversely affect­
ed by the designation of twenty-three WG-2104-10 electrician 
mechanic positions for staffing by class members.— In actuality,

[H]is rank on the WG-2604-10 register is 178; 25 class
[footnote continued]

ccl52#8 30



The white employees' brief does not dispute these
factual findings supporting denial of Rule 24(a) intervention. 

Instead, they focus on the generalized "injury" to white 

employees as a group who are unable to compete for the small 
number of positions that will be filled under the Decree by 

black class members. First, they overlook the lower court's 
findings that actual injury to the actual proposed intervenors 
was too speculative and that an employee in this Circuit may 
subsequently collaterally attack the Decree once it is imple­

mented and concrete injury is determinable. See supra; Reeves, 
754 F .2d at 971; Jefferson County, 720 F.2d at 1517. Second, 

the proposed intervenors were not able to show that they would 
have been promoted in the absence of the Decree's promotional

— [continued]

members rank ahead of him and 64 class members meet 
all the criteria of the top progression level.

(R. 1473 u 76.)

Another white employee, Marion Musselwhite, claims 
that he was the best qualified for promotion to a WG-2610-12 
position and the three named plaintiffs scheduled to receive 
these positions were not as qualified, and that he would be 
denied a WS-8801-10 position. In actuality,

[0]n the most recent WG-1610-12 register (May 25,
1984), Mr. Musselwhite's rank was 1401, below the 
ranks of Mr. Howard, Jones, and Taylor. . . . Based 
on Mr. Musselwhite's rank, he would not be promoted 
before the three named plaintiffs even in the absence 
of the Consent Decree . . .  Mr. Musselwhite also 
alleges that he is eligible for the position 
WS-8801-10, aircraft overhaul foreman, contrary to the 
register for the position which shows his rank as 
2049. There are 126 class members in the top 1000 
candidates, all of whom meet the criteria of _the top 
progression level.

(R. 1474 11 77.)

ccl52#8 31



provisions. The specific affidavits filed by the employees to 
demonstrate injury, upon analysis, show precisely the opposite,

-e * ' no imPact on any specific promotional interest. The lower 
court's reliance on Doherty v. Rutgers School of Law-Newark. 651 
F.2d 893, 899-900 (3rd Cir. 1981), was proper. Whites who seek 

to challenge an affirmative action provision must show that they 
would have been eligible for the benefit set aside for 
minorities but for the affirmative action plan. id.

Thus, the district court's findings in support of its 
denial of Rule 24(a) intervention are fully supported by the 
record, NAACP v. New York, and are not clearly erroneous. 

Anderson v. City of Bessemer. The denial of intervention as of 

right was an exercise of the sound discretion of the court and 
not an abuse of discretion.

3• The Ability of the White Employees to Protect Any 

Interest Is Not Impaired or Impeded, Rule 24(a).

The district court did not make separate findings 
concerning the Rule 24(a) requirement that a proposed intervenor 
show impairment or impeding of ability to protect any interest. 
The court, however, did expressly find that the white employees 

will not be prejudiced by denial of intervention. The ability 

of unsuccessful intervenors to challenge an actual denial of 

promotion in subsequent litigation plainly demonstrates that the 
ability of white employees to protect any interest is not 
impaired.

ccl52#8 32



4. Undue Delay or Prejudice to the Adjudication of Rights 
of the Parties, Rule 24(b).

The district court also did not make separate findings 
under Rule 24 (b) that permissive intervention would be 

inappropriate because the original parties would suffer undue 

delay or prejudice. However, the court did find that: ” [t]he 
present parties would be substantially prejudiced by movants' 
intervention" at the late stage in litigation in which they 

sought to intervene. Moreover, would-be intervenors' motion for 
a continuance of the fairness hearing for 120 days to take 

discovery, and their lengthy witness list clearly establish

parties.
*  *  *

Because the district court properly exercised its 
sound discretion to deny the request to intervene, the Court 
need not reach the substantive issues raised by would-be 
intervenors that we address in the next part of this brief.

B. THE DISTRICT COURT'S APPROVAL OF A SETTLEMENT PROPOSED BY 
THE PLAINTIFF CLASS, THE UNION, AND THE UNITED STATES 

DEPARTMENT OF JUSTICE WAS A PROPER EXERCISE OF THE COURT'S 
SOUND DISCRETION.

Proposed white intervenors object to the settlement on 
three substantive grounds:

(1) The promotional provisions violate the Fifth 
Amendment and Title VII;

ccl52#8 33



, 104(2) Local Union No. 1784 v. Stotts, ___ U.S.
S.Ct. 2576 (1984), prohibits the promotional provisions;
and

(3) Too much monetary relief was approved.

(Brief for Proposed Intervenor-Appellants, pp. 16-35.) After 

discussing the standard of review, we demonstrate why each 
substantive objection is meritless.

The Court is not required to conduct a c3e novo review 
of the substantive provisions of a settlement. The Court's task 
is to review for an abuse of discretion. E .q ., Reed v. General 

Motors Corp., 703 F.2d 170, 172 (5th Cir. 1983) (and cases 
cited) ("The teaching of these cases is that the district 

court's approval of a proposed settlement may not be overturned 
on appeal absent an abuse of discretion."). Unless there is a 
clear legal error, the Court should affirm a trial court's 
exercise of its sound discretion. This is especially true in a 
case in which the trial judge is intimately familiar with the 

factual record compiled over the course of a decade of 

litigation, has subjected the settlement to intensive scrutiny, 
and has prepared detailed findings in support of its approval. 

Moreover, the trial court's meticulous findings of fact —  that 
proposed intervenors wholly ignore —  are controlling unless 
clearly erroneous. Anderson v. City of Bessemer.

1. The Promotional Relief Provided by the Settlement Is
Authorized by Law.

Proposed intervenors argue that the promotional relief 
violates the Fifth Amendment and Title VII because it is

ccl52#8 34



provided to "nondiscriminate black employees on the basis of 
race." (Brief, p. 16.) Before analyzing this claim, we address 
two subsidiary claims. First, proposed intervenors claim that 
the United States" has violated the law by proposing the 

promotional relief. { I d . ) We are aware of no authority for the 
notion that a government agency violates any law merely by 
proposing a settlement for judicial approval in a lawsuit.
Second, the Fifth Amendment does not apply to federal employee 
claims of racial discrimination. The Supreme Court has 
construed Title VII to be the exclusive judicial remedy for 
federal employee claims of discrimination proscribed by 

Title VII. Brown v. General Services Administration, 425 U.S. 

820 (1976). Proposed intervenors so admit. (Brief for Proposed 
Intervenor-Appellants, p. 18.) Therefore, the white Warner 
Robins employees cannot invoke the Fifth Amendment

a* The Trial Court Found That Black Employees Were 

Subject to Prima Facie Discrimination, and That 

the Promotional Relief Provided Was Tailored to 

Provide Relief as "Victim Specific" as Possible. 
The district court reviewed detailed statistical 

evidence prepared by plaintiffs for trial. (R. 1543-45; see 

supra note 2.) The evidence showed that black employees were

14/ No federal employee Fifth Amendment cases are cited
Bushey v. New York State, ___ U.S. ___, 105 S.Ct. 803 (1985),'
cited for a dissent from a denial of certiorari, is a state 
employee Fourteenth Amendment case. Title VII is not the 
exclusive judicial remedy for state employee discrimination 
n q 7?S* See Johnson v « Railway Express Agency. 421 U.S. 454
V -*• -7 /  3  )  •

ccl52#8 35



concentrated in lower level jobs. in 1973, when the Title VII 

administrative charges were filed, the average grade of white WG 
blue collar employees was 8.0 and the average grade of black WG 

employees was 4.5; the average grade for white and black WS blue 
collar supervisory employees were, respectively, 10.0 and 6.6; 
and the average grades for white and black GS white collar 
employees were, respectively, 9.2 and 6.7. (R. 1543.) The
pattern was the same when the suit was filed in 1975. (Id.)

Statistics demonstrated that black employees were promoted to 

upper level jobs in proportions less than their representation 

in the workforce or in lower grades. Significant statistical 
racial disparities in promotional rates were found in various WG 
and GS grade groupings such that a total of 553 jobs were lost 

to blacks between 1971 and 1979. (R. 1544; see supra note 2.) 

Using a more conservative analysis, controlling for occupational 
series, significant statistical promotion disparities by race 
were found in WG grade groupings such that a total of 234 jobs 
were lost to blacks between 1971 and 1979. (R. 1544-45; see
supra note 2.)

On the basis of this statistical showing, the court
found that

7..........Plaintiffs' statistical
analyses are a sufficient basis from which 
the court could infer that plaintiffs had 
made out a prima facie case of discrimina­
tion. Plaintiffs' unrebutted statistics, 
which show disparities especially in WG 
grade groupings 1-4, 5-8, and 9-12, are a 
sufficient basis from which to infer that 
blacks were concentrated in low level jobs 
and certain occupations. Plaintiffs' 
unrebutted analysis of defendants' promotion 
patterns is sufficient from which to infer

ccl52#8 36



that there was a disparity in promotions 
between blacks and whites at Warner Robins.

8. The court finds that plaintiffs' sta­
tistical evidence to which defendants, for 
purposes of this Consent Decree, have offer­
ed no evidence in rebuttal, establishes that 
plaintiffs have a sufficient probability of 
success on the merits to warrant entry of 
this Decree. It was reasonable for the 
parties to settle the litigation by provid­
ing plaintiffs classwide promotional relief 
and compensation for lost promotions.

(R. 1550-51.)

Proposed intervenors note that defendant Warner Robins 
did not admit liability in the Decree (Brief, pp. 17, 21), but 
altogether ignore the lower court's express findings that 

plaintiffs had made out a prima facie case of discrimination" 
"such that [i]t was reasonable for the parties to settle the 
litigation^by providing plaintiffs classwide promotional 
relief. ^

The court also specifically found that the promotional 
relief provided by the Decree was within the range of possible 
recovery, i.e., the 240 special promotions and the seven 

promotions for named plaintiffs fall within the computer-based 
range of 234 to 553 promotions lost to black employees between 
1971 and 1979. The court's summary finding was

Plaintiffs' computer-based promotional 
analysis for occupational series was actual 
evidence that approximately 240 promotions 
were lost to black WG employees, i.e., sta­
tistical disparities in promotion rates were 
attributable to at least 234 promotions that 
went to whites instead of blacks. Dr.
Drogin's work appears to be a conservative 
statistical analysis; the court has no reason 
to doubt its accuracy.

(R. 1550.) The court further found that:

ccl52#8 37



Contrary to would-be intervenors' claims, the 
promotional, relief of the Consent Decree is 
agl^vlctim specific" as factually possible 
under the circumstances:— Tire parties fra~ve 
fairly demonstrated that the relief is tar­
geted to those positions actually lost by 
blacks. The actual victims cannot be iden­
tified due to the very nature of the Warner 
Robins promotion scheme, i .e., there are no 
applicants for promotions.

\r*v̂ ---

(R. 1554-55.) These findings are fully consistent with the 
terms of the Decree itself which expressly states that:

The relief set forth in this Order and 
Decree represents the parties' best efforts 
to settle and ^mpr^migo <-ho claims of spp- 
cific class members alleging t-o h^cn
vlccims of discrimination on the basis _of 
race. . . .

(R. 1134.)

A complete explanation of the statistical methodology 
used to identify the 240 positions lost by blacks, as the court 

states, was submitted by the parties in the proposed Order 

Granting Final Approval to the Consent Decree, which the lower 
court incorporated by reference. (R. 1539 n.l, 1547 n.2, citing 

R. 1470-72 mi 36-41.) We briefly summari ze the methodology 

here, and have attached the paragraphs referred to by the court 
as Attachment A hereto for the convenience of the Court.

The parties were required to reconstruct the most 

likely victims of discrimination in the 1971-1978 period because 
it was impossible to identify by name class members who lost 
promotions as a result of alleged discriminatory employment 

practices. Application files do not exist because employees do 
not apply for promotions at Warner Robins; no records document 
the employees considered for promotion; no contemporary 

supervisory appraisal or test scores exist. Significant losses

ccl52#8 38



of promotions to blacks were found in promotions from grade 
levels WG-2, WG-5, WG-6, WG-8, and WG-10 based on the 
plaintiffs' more conservative analysis of promotional 

disparities. A further analysis established the grades and 

occupational series to which class members could be expected to 
be promoted based on historical career progression patterns. In 

order to fill the positions thus identified, job tenure was 
given equal weight with supervisory appraisals in considering 
class members for promotions as "a further attempt to increase 

the victim specificity of the Consent Decree, since it can be 
assumed that the number of promotional opportunities afforded an 

individual increases with tenure." (R. 1472 11 40.)
The court's findings of fact that promotional relief 

was reasonable and appropriate are fully supported by the record 
and are not clearly erroneous. Proposed intervenors completely 
ignore these extensive findings; they present no evidence to the 
contrary in the record. They merely assert, without any factual 

support, that "no evidence" exists that class members who will 

receive the special promotions were subject to discrimination. 
(Brief, p. 16.)

Conceding, as they must, that "it is difficult to 

ascertain under the promotional selection devices at [Warner 
Robins] presently who should have been granted particular 
promotions at [Warner Robins] a decade ago," they assert, 

without any factual support, that alternative ways exist to 
construct more accurate "victim specific" relief. (Brief, 

pp. 25-26.) However, no abuse of discretion is demonstrated; no 

finding of fact is demonstrated to be clearly erroneous; and no

ccl52#8 39



bad faith on the part of the parties is demonstrated. Nor is 
there any reason given in law or equity why "the available 

alternative of trial on the merits" —  desired by would-be 

intervenors who are unfamiliar with the record —  is preferable 
to the relief proposed in good faith by responsible parties on 
the basis of a full record and approved by a court that has 
heard all matters in the case for a decade.

b* The District Court Committed No Legal Error.
Proposed intervenors erroneously place principal 

reliance on Bushey v. New York State Civil Service Commission.
--- U.S. ___, 105 S.Ct. 803 (1985). (Brief, pp. 19-22.) First,
no doctrine accords weight to a dissent from a denial of certi­
orari. Second, as discussed supra note 15, Bushey, a Fourteenth 
Amendment state employment case, does not apply to federal 

employees whose exclusive judicial remedy is Title VII under 

Brown v. General Services Administration. Third, assuming the 

Bushey dissent were relevant, federal employees are not subject 
to heightened scrutiny with respect to affirmative action 

promotional relief. Proposed intervenors concede that Congress 

has authority pursuant to Section 5 of the Fourteenth Amendment 

to enact race-conscious affirmative action programs, Fullilove 
v. Kreps, 448 U.S. 448 (1980), but assert that "Congress has 

made no finding of any need for preferential treatment of blacks 
by public employers in the employment arena." (Brief, p. 21.) 

Precisely the opposite is true. The legislative history of the 

Rights Act of 1972, 42 U.S.C. § 2000e—16, extending 
Title VII to federal employees, stated that:

ccl52#8 40



Th[e] disproportionate distribution of 
minorities . . . throughout the Federal 
bureaucracy and their exclusion from high 
level policymaking and supervisory positions 
indicates the government's failure to pursue 
its policy of equal opportunity.

H. R. Rep. No. 92-238, Equal Employment Opportunity Act of 1972, 

reprinted in 1972 U.S. Code Cong. & Admin. News, p. 2137, 2158. 
The legislative history cited grade level statistical 
disparities.— ^ Moreover, 42 U.S.C. § 2000e-16 (b) (1) imposes 
the requirement that each agency prepare equal employment 

opportunity plans "in order to maintain an affirmative program

15/
Despite some progress that has been made in this 

area, the record is far from satisfactory. Statisti­
cal evidence shows that minorities . . . continue to 
be excluded from large numbers of government jobs, 
particularly at the higher grade levels. According to 
statistics released by the Civil Service Commission, 
as of May 31, 1970, minorities accounted for 19.4 per­
cent of the total number of government employees and 
14.4 percent of general schedule employees. An exam­
ination of the distribution of employees within the 
various levels of the Federal system shows that the 
majority of these employees are at the lower levels of 
government employment. Approximately 80% of the mi­
nority employees on the general schedule are in grades 
1 through 8. In grades GS-1 through 4 minorities ac­
count for 27.3 percent of all employees, and in grades 
GS-5 through 8 they represent 17.2 percent of all em­
ployees. On the other end of the scale, in grades 
GS-14 through 15, minorities represent only 3.3 per­
cent of all employees, and at grades GS-16 through 18 
minorities account of 2.0 percent of all employees. 
These figures represent little improvement over the 
statistics from the previous study done by the Civil 
Service Commission in November, 1969. In fact compar­
ison of the two sets of figures shows no perceptible 
change in the proportion of minorities in the Federal 
service during the 6 month period. Although minority 
representation in positions above GS-14 has increased 
slightly the minority concentration in the lower level 
positions (GS-1-4) has also increased by .6% from 
26.7%.

Id.

ccl52#8 41



of equal employment opportunity for all such employees and 
applicants for employment." Fourth,

[i]t is not a constitutional defect in the 
[affirmative action] program that it may 
disappoint the expectations of non-minori- 
t[ies] . . . when effectuating a limited and 
properly tailored remedy to cure the effects 
of prior discrimination, such a 'sharing of 
the burden' by innocent parties is not 
impermissible.

Fullilove, 448 U.S. at 484. Fifth, Stotts mandates no constitu­
tional rule. E .g ., Palmer v. District Board of Trustees, 748 

F.2d 595 (11th Cir. 1984); NAACP v. DPOA. 591 F.Supp. 1194, 1202 
(E.D. Mich. 1984).

The proposed intervenors also erroneously claim that 
the promotional relief "unnecessarily trammelfs]" the interests 
of white employers. United Steelworkers of America v. Weber,

443 U.S. 193, 203 (1979). (Brief, pp. 22-24.) First, the lower 
court considered Weber and specifically found that:

[T]he promotional relief does not unrea­
sonably trammel the interests of white 
employees. As the statistics demonstrate, 
the positions to be filled by blacks should 
have been filled by blacks years ago. The 
promotions set aside for blacks will be 
filled within approximately two years. More 
importantly, the 240 promotions set aside 
for blacks represent only a fraction of the 
total number of promotions anticipated dur­
ing this two-year period —  3,600 promotions 
will most likely take place; only 240, or 
6.5%, of those are set aside for class mem­
bers. The interests of white objectors are 
not unreasonably affected.

(R. 1555.) The promotional relief is no long-term preference.
It is fixed at 240 specific promotions for class members; the 

promotional relief will take less than two years to implement.
It will not affect all job categories; it is targeted at

ccl52#8 42



specific jobs lost by blacks. The Decree "does not require the 
discharge of white workers and their replacement with new black 

hires." Weber, 443 U.S. at 203. Nor does the Decree "create an 
absolute bar to the advancement of white employees." Id.

Second, proposed intervenors' focus on the hypothetical maximum 

of 247 white employees denied promotions under the Decree 
exposes the poverty of their claim. These white employees, at 
most, are 2% of white Warner Robins employees. Proposed 

intervenors also object to promotional relief because some white 
employees will be affected while many others remain unaffected. 

That, however, results from any victim specific relief that 
targets specific employees discriminatorily denied jobs, even 
that proposed by white employees themselves.

2. Local Union No. 1784 v. Stotts Does Not Prohibit the

Promotional Relief.
The district court's summary rejection of Local Union 

No. 1784 v. Stotts was correct, and has been confirmed by the 
Court's authoritative opinion earlier this month in Turner v.

Orr, Eleventh Circuit No. 84-3266 (April 18, 1985), pp. 12-19. 
(For the convenience of the Court, a copy of Turner is appended 

hereto as Attachment B.). All proposed intervenors' claims have 
been rejected by Turner.

In Stotts, the Supreme Court overturned an order 

enjoining the City of Memphis from laying off firefighters in 

accordance with a seniority system established in a collective 

bargaining agreement. The purpose of the district court order 
was to prevent the layoffs from eroding hiring and promotion

ccl52#8 43



gains in minority employment made under a previous consent 
decree. The Supreme Court held that the district court order 
was neither authorized by the original consent decree nor a 

legitimate modification of that decree that could be imposed on 
the city without its consent.

In Turner, this Court distinguished Stotts in a 
Title VII action in which the United States Air Force —  an 
appellee in the instant case —  argued that promotional relief 
was invalid in the absence of a finding of discrimination 

because the policy of Section 706(g), 42 U.S.C. § 2000e-5(g), is 

"to provide make-whole relief only to those who have been actual 
victims of illegal discrimination." Stotts, 104 S.Ct. 2589.

Stotts, as in Turner, does not apply in the instant
case.

FiLrst, proposed intervenors do not and cannot claim 
that a bona fide senority system will be affected by the Decree. 

Turner, pp. 13-14. A primary basis of the Stotts holding was 

that the district court's order required Memphis to violate the 

provisions of a bona fide seniority system. The "issue at the 

heart" of Stotts was whether the district court exceeded its 
powers by issuing an injunction requiring layoffs of senior 

white employees "when the otherwise applicable seniority system 
would have called for the layoff of black employees with less 

seniority." Stotts, 104 S.Ct. 2585. AFGE, the local union, has 

not appealed: it is an appellee defending the Consent Decree it 
/

/
/

ccl52#8 44



signed.— ^

Second, no third party rights are properly involved. 
Turner, pp. 14-15. As discussed above, proposed intervenors can 
cite no concrete injury to any white employee. The local union, 

representing both black and white employees, is a signatory to 
the Decree, and an appellee here.— ^

Third, the consent judgment here was voluntarily 
entered by the parties. "Stotts . . . dealt with the power of a 
court to modify a consent judgment over the objection of one of 
the parties" and the Supreme Court specifically held the order 
was not authorized by the original consent decree. Turner,

PP. 15-19. In the instant case, the promotional relief to which 
proposed intervenors object was voluntarily agreed to by the 
parties, and does not result from a coercive action under 
Title VII.

This distinction makes the legal basis of 
Stotts inapplicable. Stotts relied on Sec­
tion 706(g) of Title VII which provides that 
"[n]o order of the court shall require the 
. . . promotion of an individual . . .if 
such individual was refused . . . advance­
ment . . . for any reason other than dis­
crimination." This provision merely limits 
the power of a court to order certain reme­
dies under Title VII in the absence of a

— ^ EEOC v. Local 638, Sheetmetal Workers, 36 FEP Cases 
1466, 1477 (ed Cir. 1985); Vanguards v. City of Cleveland, 36 
FEP Cases 1431, 1436 (6th Cir. 1985); Van Aken v. Young, 750 
F .2d 43, 45 (6th Cir. 1984); Kromnick v. School Dist., 739 F.2d 
894, 911 (3d Cir. 1984), cert, denied, 53 U.S.L.W. 3483 (Jan. 7, 
1985); Hammon v. Barry, No. 85-0903 (D.D.C. April 11, 1985); 
Deveraux v. Geary. 596 F.Supp. 1481, 1486 (D. Mass. 1984).

17 /— See Kromnick v. School Dist., 739 F.2d at 911; Wygant 
v. Jackson Board of Education, 746 F.2d 1152, 1157-58 (6th Cir. 
1984); Britton v. South Bend School Corp., 593 F.Supp. 1223,
1231 (N.D. Ind. 1984) .

ccl52#8 45



finding that the promoted individual was a 
victim of discrimination. it does not limit 
the remedies to which parties may voluntari­
ly agree under a consent judgment.

Turner, pp. 15-16.— /

Fourth, section 706(g), 42 U.S.C. § 2000e—5(g), does 
not bar enforcement of effective affirmative action in the 
instant federal employee Title VII case in light of the fact 

that the 1972 amendments to Title VII were intended, inter alia, 
to overcome the relegation of minorities to low status federal 

jobs, and the unique affirmative action obligations imposed on 

federal agencies. See supra note 15 and accompaning text; 
Turner, p. 13 n.2 (court found it unnecessary to reach this 
ground of decision).

Assuming arguendo that Stotts applies, the lower 
court's specifically found that "the promotional relief . . .  is 
as 'victim specific' as factually possible under the 

circumstances"; "the relief is targeted to those positions 
actually lost by blacks"; "actual victims cannot be identified 
due to the very nature of the Warner Robins promotion system."

(R. 1554-55.) These findings and the diligent efforts of the 
parties to structure "victim specific" relief, see supra, are 
sufficient to satisfy Stotts.

Proposed intervenors also claim that the promotional 
relief provided by the Decree includes too many positions

18 /~  Vanguards v. City of Cleveland. 36 FEP Cases at 1439; 
Kromnick v. School Dist.. 739 F.2d at 911; Wygant v. Jackson 
Board of Education, 746 F.2d at 1157-58; Deveraux_v. Gearv, 596 
F.Supp. at 1486; Britton v. South Bend School Corp., 593 F.Supp.

ccl52#8 46



because it does not take into account the effects of attrition. 
(Brief, pp. 31-33.) First, average attrition rates in 

themselves do not demonstrate that the black employees who will 
actually receive special promotions were not discriminatorily 
denied promotions for 1971-1978, in light of the fact that 
greater tenure is itself one of the key determinants of 

promotion to one of special positions. Second, the loss of jobs 
to class members ranged from a low of 234 promotions to a high 

of 551 promotions according to plaintiffs' statistical expert. 

Third, aside from the unrefined overall 6.5% attrition rate, 
proposed intervenors present no other evidence to support their 
claims. The record, however, clearly shows that application of 
overall attrition rates to black Warner Robins employees is 

inappropriate because their average length of service in grade 
is greater than white employees in every source grade for the 

promotional relief, and that average in grade tenure rates for 
blacks are higher the lower the grade. (R. 1456-69.) For 
instance, the tenure of black WG-8 employees is twice that of 
white WG-8 employees.

3. The Monetary Relief Was Not Excessive.
The district court found that:

With respect to the 3.75 million dollar 
class compensation fund, each increase in 
grade was found by plaintiffs to be worth 
roughly $1,000.00. Assuming an average of 
1.5 grade level increase per promotion, the 
240 promotions lost to blacks resulted in 
economic loss of $360,000.00 per year.
Assuming for purposes of a rough estimate 
that all the 240 promotions lost to blacks 
were evenly distributed over the period in 
question, the total economic loss resulting

ccl52#8 47



from the 240 positions was between 3.24 and 
3.6 million dollars. The actual 3.75 
million dollar class compensation fund, 
therefore, approximates the range of 
possible recovery if these cases were tried 
on their merits.

(R. 1552.) The court's approval of the class compensation fund 
was not an abuse of discretion, and its findings were not 
clearly erroneous.

Proposed intervenors erroneously object that monetary 
relief will go to blacks not subject to discrimiation and that 
the relief should not exceed $2.7 million. (Brief, pp. 34-35.) 

First, the white employees are not prejudiced in any way by the 
monetary relief. They will gain not one penny more if the 
monetary relief is eliminated or reduced. The money would 
return to the United States Treasury. Second, no Title VII 

action or predicate administrative complaint has been filed by 
proposed intervenors challenging any "underpayment" as 

discriminatory. They, therefore, cannot raise any underpayment 
issue. Third, proposed intervenors' claims about the amount of 

monetary relief are simply wrong for the reasons set forth above 
concerning the reasonableness of promotional relief. The white 
employees' claims that class members were not subject to 

discrimination are unsupported, and do not gain validity merely 

by repetition. $3.75 million is at the low end of the range of 

possible recovery based on the 234-551 range of lost promotions. 
/

/
/
/

ccl52#8 48



X.

CONCLUSION
The judgment should be affirmed.

Dated: April 30, 1985 Respectfully submitted,
BILL LANN LEE 
Center for Law in the 

Public Interest 
10951 W. Pico Boulevard 
Los Angeles, Calif. 90064 
(213) 470-3000
JULIUS LeVONNE CHAMBERS 
RONALD L. ELLIS 
99 Hudson Street 
New York, N.Y. 10003

JOSEPH H. HENDERSON 
American Federation of 

Government Employees 
1325 Massachusetts Ave., NW 
Washington, D.C. 20005
THOMAS A. JACKSON 
655 New Street 
Macon, Georgia 31201

CHARLES A. MATHIS, JR.
BRIAN COMBS 
Mathis & Coates 
909 FuLbcrp Federal Building 
Macoryj Gjeorgia A31202

Counsel for Plaintiff Class- 
Appellees

ccl52#8 49



CERTIFICATE OF SERVICE
This will certify that I have this date served the

following counsel in this action with true and correct copies of

the foregoing BRIEF FOR PLAINTIFF CLASS-APPELLEES RESPONDING TO
BRIEF OF PROPOSED INTERVENOR-APPELLANTS by placing said copies
with Bor Air at Los Angeles, California, for guaranteed delivery
next morning, fully prepaid, addressed as follows:

Austin E. Catts 
Garland, Nuckolls & Catts 
92 Luckie Street, N.W.
Atlanta, Georgia 30303
Peter R. Maier
Appellate Staff, Civil Division 
Room 3129
U.S. Department of Justice 
9th & Pennsylvania 
Washington, D.C.

Executed this 30th day 
California.

20530

of April, 1985, at Los Angeles,

Attorney for Plaintiff Class- 
' Appellees

ccl52#8 50



(\. *r. IN THE
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

No. 84-8999

MICHAEL HOWARD, et al.f
Plaintiff Class-Appellees, 

v.
JOHN L. McLUCAS, et al.,

Defendants-Appellees.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, et al.,
Plaintiffs-Appellees, 

v.
JOHN C. STETSON, et al.,

Defendant-Appellees.

ROBERT POSS, et al.,
Proposed Intervenor-Appellants.

On Appeal from the United States District Court 
for the Middle District of Georgia

ATTACHMENTS TO
BRIEF FOR PLAINTIFF CLASS-APPELLEES 

RESPONDING TO BRIEF OF 
PROPOSED INTERVENOR-APPELLANTS

This case is not entitled to preference in processing or 
disposition.

JULIUS LeVONNE CHAMBERS 
RONALD L. ELLIS 
99 Hudson Street 
New York, NY 10013

THOMAS A. JACKSON 
655 New Street 
Macon, Georgia 31201
CHARLES A. MATHIS, JR.
BRIAN COMBS
Mathis & Coates
909 Fulton Federal Building
Macon, Georgia 31202

BILL LANN LEE 
Center for Law in the 

Public Interest 
10951 W. Pico Boulevard 
Los Angeles, Calif. 90064 

(213) 470-3000

JOSEPH H. HENDERSON 
American Federation of 

Government Employees 
1325 Massachusetts Ave., NW 
Washington, D.C. 20005

Attorneys for Plaintiff Class-Appellees



ATTACHMENT A



the class and a fairness hearing. Consent Decree, p. 17, 11 23. 
The Court was kept sufficiently apprised of the course of 
negotiations to be satisfied that the Consent Decree was the 
product of negotiations conducted entirely at arm's length and 
commenced after years of discovery and trial preparation.

E. Methodology for Identifying the 
Jobs Lost to Blacks

36. Because the promotion records at Warner Robins do not 
reflect which employees were considered for job vacancies during 
the years 1971 through 1978, contain only the most current 
supervisory appraisals and not those used to determine 
promotions during that same period, and contain only the most 
recent test scores, it was factually impossible for the parties 
to identify by name those class members who had actually lost 
jobs as a result of the alleged discriminatory employment 
practices of the defendants. See Findings of Fact, 11 15. 
Instead, the parties were required to reconstruct the most 
likely victims, based on statistical evidence of jobs that were 
lost during the relevant period, 1971 through 1978. Transcript, 
pp. 85-86, 90.

37. Relying on statistical analyses prepared by both 
parties' experts, it was possible to determine that significant 
losses to blacks occurred in grades WG-2, WG-5, WG-6, WG-8 and 
WG-10. Wooley Affidavit, H 4. This computation was limited to 
the grade levels identified in Dr. Drogin's Wage Grade table 
from his more conservative analysis for two reasons: (1) his
General Schedule table showed no significant losses to blacks;

410

\

.  c*>
I/O

15



•and (2) the analyses performed by Dr. Wise, the defendants'
• statistical expert, showed no significant losses in the Wage 
Leader and Wage Supervisory pay plans. Id., fl 3. The total 
number of losses to’ blacks was thereby estimated as 234. Id.-

38. The grade levels for the number of overall losses, 
which the parties agreed was at least 240, was determined using 
WG-2, WG-5, WG-6, WG-8 and WG-10 as source grades. Id.,
4. To be as victim, specific as possible, the 240 positions lost 
to blacks were then apportioned across logically derived target 
grades, i » e . , those grades to.which class members could be 
expected to be promoted based on historical career progression 
patterns at Warner Robins, to determine the most likely jobs 
actually lost to blacks during the relevant period. ^d., 5;
Transcript, pp. 87-88. This apportionment was based on a five- 
year history of promotions at Robins, because the data base 
containing career progression patterns only goes back to January 
1, 1979. Transcript, p. 87.

39. Once the jobs lost to blacks had been identified by 
grade levels, the occupational series for those jobs were 
identified based on the projection of vacancies at Warner Robins 
during 1982 and 1983, the best indicator of projected vacancies 
over the next two years. Wooley Affidavit, fl 6; Transcript, p. 
88-89. For example, if fifty percent of the anticipated 
vacancies at a given grade level were expected to occur in a 
specified series, then one-half of the target positions for that 
grade level were designated to be filled in that series. Wooley 
Affidavit, 6.

16



40. Special promotion registers will be used to fill the 
240 promotions, based on the procedure set forth in Ufl 12-13 of 
the Consent Decree. All candidates will be qualified, i d .,
11, and seniority will be given equal weight with supervisory 
appraisals in ranking employees as a.further attempt to increase 
the victim specificity of the Consent Decree, since it can be 
assumed that the number of promotional opportunities afforded an 
individual increases with tenure. - Wooley Affidavit, H 9.

41. This empirically based plan for the identification of 
jobs lost to blacks as a result of the alleged discrimination, 
is statistically derived, and represents the parties' best 
effort to identify those positions actually lost by blacks, 
given the nature of the record system and incomplete employment 
information in the computer relating to the period in question. 
Id.; Transcript, pp. 89-90.

. F. Notice to the Class
42. The notice sent to class members, as well as the 

methods of its dissemination, were contained in the Order of 
June 18, 1984. Exhibit C of the Consent Decree, a notice 
summarizing the terms of the Decree, was published every third 
day for three consecutive weeks in the Macon Telegraph and News 
and the Warner Robins Daily Sun, published three consecutive 
times in the weekly Macon Courier and Robins Rev-up, and posted 
on all official bulletin boards at Warner Robins. Copies of the 
complete Consent Decree were sent to local unions and made 
available in Warner Robins' various directorates and offices for 
review by employees. In addition, a notice was posted apprising

17



ATTACHMENT B



IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

WILLIAM C. TURNER, et al.#

Plaintiffs-Appellees,

vs.

VERNE ORR, Secretary of the Air Force, et al.,
t

Defendants-AppeHants.

Appeal from the United States District Court 
.. for the Northern District of Florida

(April 18, 1985)

Before GODBOLD, Chief Judge, HATCHETT, Circuit Judge, and 
TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:



This case concerns a final order entered by a special 
master and affirmed by the district court applying and enforcing 
the provisions of a consent judgment. The consent judgment was 
entered January 12, 1981, in settlement of a class action suit 
brought against the Air Force under Title VII of the Civil 
Rights Act of'1964, 42 O.S.C. 2000e, for alleged racial dis­
crimination against civilian black employees and applicants for 
employment at Eglin Air Force Base in Florida. This consent 
judgment was adopted by the district court after conducting a 
four-day fairness hearing on February 4, 1980; September 16,
1980; December 16, 1980; and January 12, 1981.

Under the consent judgment, defendants agreed "to make a 
good faith effort" to reach and maintain specified racial 
proportions on a percentage basis for specific job categories. 
(Judgment, § VII 11). Similarly in Section X of the consent 
judgment, defendants agreed to "make every good faith effort" to 
fill supervisory positions with blacks "in proportion to the 
percentage of blacks in the occupancy category wherein the 
vacancy arises." (Section X, 13). The consent judgment defines 
the phrase "good faith effort" as meaning "every necessary and 
appropriate step will be taken to realize the specified 
objectives." (Section II, 19). The percentages specified in the 
consent judgment are stated not to be quotas; rather the 
specified proportions are expressly referred to as "goals." 
(Section VII, 11 2, 3, 4, 5).

2



Pursuant to § IX of the consent judgment, in September 
1983, the plaintiffs' monitoring committee ("PMC") brought 
before the special master the complaint of Raymond Little, a 
member of the plaintiff class.

The complaint was in form of a statement filed by the PMC 
in which the following language was used:

C. The Issues Brought Before The Special 
Master:

Whether, in violation of Paragraph 4,
Section IX of the Consent Judgment, the 
Defendants discriminated against Raymond 
Little when they failed to hire him for two 
positions. The two vacancies at issue are 
both supervisory positions in Series 5306 at 
the WS-7 level, Air Conditioning Equipment 
Mechanic Foreman. The first was filled by 
Arthur Kelly on March 21, 1982. . . .

The special master found that the defendants in filling 
one of the supervisory positions had violated the provision of 
the consent judgment that required them to "make every good 
faith effort" to fill supervisory positions with blacks "in 
proportion to the percentage of blacks in the occupancy category 
wherein the vacancy arises." He ordered that Lttle be placed in 
a vacant supervisory position and awarded back pay. The court 
denied motion for a stay, so Little is filling the job now.

Appellees have questioned the jurisdiction of this Court 
over this appeal. The special master ordered the immediate 
promotion of Little and instructed counsel to "calculate 
seniority, back pay, and other appropriate relief." Appellees 
contend that because the amount of the damages was undetermined,

3



this was not an appealable final judgment. We disagree. The 
calculation required under the special master's report is purely 
ministerial in nature - a simple arithmetic calculation of back 
pay and seniority. Such ministerial acts concerning the 
execution of a judgment do not affect the finality of the 
decree.

I. ISSUES
The issues for decision by this Court are as follows:

1. Did the special master err in finding that the Air Force had 
violated the "good faith" provisions of the consent 
judgment?

2. Is the remedy ordered by the special master authorized by 
the consent judgment?

3. Does the remedy ordered by the special master violate 
Section 706(g) of Title VII?

II. DISCUSSION

A. Violation of the Consent Judgment
The special master held that the Air Force violated the 

good faith provisions of the consent judgment. The Secretary 
contends that this finding was based on a construction of the 
consent judgment which is contrary to the intent of the parties.

As a preliminary matter, we must determine the appropriate 
standard of review. The district court indicated that "The 
question whether defendants acted in good faith is a pure 
question of fact with the special master's determination 
respecting it subject to review under the . . . clearly 
erroneous standard." The Secretary argues that the clearly 
erroneous standard is inapplicable because construction of a

4



consent judgment is a question of law. He contends that the 
special .master's finding of a violation was based on an inter­
pretation of the legal duties placed on appellants by the terra 
"good faith." Hence, the Secretary urges review de novo by this 
Court as a legal question.

The Secretary's argument fails to distinguish between 
construction of a consent judgment, which is a question of law, 
and a finding that appellants' actions failed to comply with the 
standards established by the consent judgment, which is a 
factual inquiry. As the Supreme Court indicated in the recent
case of Firefighters Local Union No. 1784 v. Stotts, ___ D.S.
___• 104 S.Ct. 2576, 2586 (1984)(citation omitted), the "scope
of a consent decree must be discerned within its four corners." 
Construction of a consent judgment is thus a question of law 
subject to djj novo review. In the instant case, however, the 
scope of the consent judgment is not in issue. The consent 
judgment plainly requires that the Air Force "make every good 
faith effort to fill [supervisory] positions in proportion to 
the percentage of blacks in the occupational category wherein 
the vacancy arises." "Good faith effort" is defined in the 
consent judgment to mean that "every necessary and appropriate 
step will be taken to realize the specified objectives." The 
special master reviewed the specific actions of the Air Force in 
filling the supervisory vacancy and determined that those

5



actions failed to meet the good faith standard established by 
the consent judgment. This is a factual determination which we 
review under the clearly erroneous standard.

The special master found that the good faith provisions 
had been violated on alternative grounds, as follows:

The Special Master determines that the 
good faith provisions of the Consent 
Judgment goals section were violated by the 
Defendants when the Defendants hired Mr. 
Kelly, a Caucasian male, without ever 
notifying the selecting supervisor at any 
point in time that this was a Consent 
Judgment goal position. Notifying selecting 
supervisors, in some manner, that the 
position is subject to the Consent Judgment 
goals would be a minimal action necessary to 
meet the good faith requirement of the 
Consent Judgment.

The Special Master reaches the conclusion 
that the good faith requirement was not meet 
[sic] in this particular case on an 
alternative ground. The essence of the 
closing argument by the Defendants was that 
even if Mr. Little were qualified to fill 
the vacancy it was unreasonable to select 
anyone other than Mr. Kelly because Mr.
Kelly was more qualified than Mr. Little. .
. . Defendants' argument misses the mark. 
One would assume that in the absence of the 
Consent Judgment that whenever selecting 
officials have a number of qualified 
candidates from which to choose the 
officials would hire the best qualified 
applicant. If all that the good faith 
provision requires in this situation is the 
selection of the best qualified candidate 
then the provision is a nullity. The 
drafters of the Consent Judgment, by its 
express language, clearly intended that 
additional effort be exerted by the 
Defendants in meeting the goals. Thus, in 
this particular situation, assuming without 
deciding that Mr. Kelly was the best 
qualified candidate, the Defendants' 
argument that the good faith requirement was

6



met because the supervisors selected the 
best qualified candidate from a group of 
.qualified candidates is without merit.

These findings are amply supported by the record. The 
Secretary concedes that the selecting supervisors were not 
notified that the vacancy was one covered by a consent judgment 
goal. When the vacancy was filled originally on a temporary 
basis, the Air Force unilaterally decided that the goals did not 
apply to temporary positions. Later, the position was converted 
to permanent status noncompetitively. Thus, at no point were 
the selecting officials even notified that good faith efforts to 
meet the consent judgment goals were required.

Moreover, it is clear that good faith efforts were not 
made. As the special master found, the Air Force officials 
involved testified that they considered the good faith re­
quirement to be met if they selected the best qualified 
candidate. The special master correctly found that such an 
interpretation would render the good faith requirement a nullity 
because discrimination is barred by Title VII and by Section II 
of the consent judgment.

Little was well qualified for the supervisory position. He 
had an Associate of Arts Degree, additional college courses, and 
specialized courses in air conditioning. He had 12 years 
experience as an air conditioning mechanic and extensive 
supervisory experience in the Array and Array reserve. Two of the 
three members of the all white selection committee testified 
that Little was less qualified than the individual selected

7



because he had less supervisory experience. Yet both admitted 
that they were unaware of the full extent of Little's super­
visory experience and had not reviewed his personnel file.
Little testified that he was asked no questions about his prior 
supervisory experience and that his interview lasted approx­
imately 15 minutes, while that of the selected individual may 
have lasted an hour. One of the committee members testified 
that education was one of three key factors in the selection, 
although he later testified it was less important than the other 
factors. The individual selected had only a GED high school 
diploma, while Little had an Associate of Arts Degree plus 
additional courses. One committee member testified that Little 
lacked the requisite mechanical skills, but this was con­
tradicted by his own written performance appraisals of Little.

We need not decide what steps are sufficient to meet the 
good faith requirement of the consent judgment. Numerous 
opportunities for the Air Force to make good faith efforts are 
suggested by the facts in this case, however. The Air Force 
could have notified the supervisors that the consent judgment 
goals applied to the vacancy, it could have taken the time to 
interview Little thoroughly and to review his personnel file to 
learn of his supervisory experience, it could have included 
minority members in the selection committee, it could have 
evaluated carefully its selection criteria to determine if the 
extra years of experience of the individual selected really made 
him "better qualified" than Little with his better education and

8



'» *

ample experience. We cannot find that the Air Force 
demonstrated that it made any effort to meet the consent 
judgment goal in filling this vacancy. Thus, the special 
master's finding that the Air Force failed to comply with the 
good faith requirements of the consent judgment is not clearly

v .-

erroneous.
Before turning to the remaining issues in this case, we 

must mention one false issue raised by the Secretary. The 
Secretary repeatedly asserts in his briefs that the special 
master construed the good faith provisions to require "the 
Secretary to hire or promote only class members until the 
'goals' are met." There is simply no such holding in the 
special master's report. The special master held only that the 
steps taken in this case were insufficient to meet the good 
faith requirement and that the mere assertion that the best 
qualified candidate was chosen does not constitute a good faith 
effort. The Secretary builds on his erroneous interpretation of 
the special master's holding by arguing that a decree according 
an absolute promotion preference to class members violates both 
Title VII and the equal protection rights of innocent third 
parties. Because the special master's order does not require an 
absolute promotion preference for class members, we need not 
reach these arguments.

9



B. Remedy for Consent Judgment Violation
• Having found that defendants violated the consent 

judgment, the special master ordered defendants to promote 
Little to a vacant supervisory position with back pay. The 
Secretary contends that this remedy is not authorized by the 
consent judgment.

The consent judgment provides, "In the event that the 
Special Master determines that a violation of the Judgment has 
occurred, he shall be authorized to order all appropriate relief 
therefor. . We hold that this provision fully authorized
the special master's award of promotion and back pay in this 
case. The special master found that defendants had violated the 
good faith provisions of the consent judgment, and the relief he 
ordered was entirely appropriate for the violation.

The Secretary argues, however, that the remedies available 
to the special master are limited by the general provision in 
the consent judgment that "In interpreting the provisions of 
this Judgment which may become disputed among the parties, the 
law as set forth by Title VII of the Civil Rights Act of 1964 as 
construed by the courts, shall apply." The Secretary contends 
that Title VII authorizes the remedies of promotion and back pay 
only for actual victims of discrimination and, hence, these 
remedies should be reserved for victims of discrimination under 
the consent decree. We see no merit in this argument. The 
consent judgment specifically provides for "all appropriate 
relief" to be given for consent judgment violations. Nothing in

10



Title VII addresses the question of what relief is appropriate 
for such .violations because Title VII deals with discrimination, 
not with violations of consent judgments. Title VII’s remedy 
provisions are therefore of no assistance in determining what 
relief is "appropriate"^for the Secretary's violation of the 
consent judgment, and the special master correctly relied upon a 
careful assessment of the nature of the violation in this case 
in deciding what relief was appropriate.

The Secretary also contends that the special master could 
not order back pay and promotion in the absence of a specific 
finding that "but for" the consent judgment violation, Little 
would have been promoted. The Secretary's argument is based on 
analogy to the principle under Title VII that even when dis­
crimination has been proven, the plaintiff is not entitled to 
relief if the defendants prove by a preponderance of the 
evidence that plaintiff would not have been hired even in the 
absence of discrimination. Lewis v. Smith, 731 F.2d 1535, 1538 
(11th Cir. 1984). The Secretary's analogy is faulty, however, 
because relief here is being granted not for violation of Title 
VII, but for violation of the consent judgment. The consent 
judgment authorizes the special master to order appropriate 
relief when he determines that the consent judgment has been 
violated. No "but for" finding is required.

We hold, therefore, that the relief ordered by the special 
master was authorized by the consent judgment.

11



C. Title VII
The Secretary's final contention is that the remedy 

ordered by the special master is in violation of Section 706(g) 
of Title VII of the Civil Rights Act of 1964 as recently 
interpreted by the Supreme Court in Stotts.

In Sto11s the Supreme Court overturned an order enjoining 
the city of Memphis from laying off firefighters in accordance 
with the seniority system established in a collective bargaining 
agreement. The district court order was intended to prevent the 
layoffs from having a negative effect on minority gains made 
under a previous consent decree setting hiring and promotion 
goals for minorities. The Supreme Court held that the order was 
neither authorized by the original consent decree nor a 
legitimate modification of that decree that could be imposed on 
the city without its consent.

The Secretary contends that under Stotts, Section 706(g) 
of Title VII bars any court from ordering a promotion and back 
pay in the absence of a finding that the complainant suffered

12



the language in Stottsactual discrimination.^ He points to 
indicating that the policy of Section 706(g) is "to provide 
make-whole relief only to those who have been actual victims of 
illegal discrimination." 1(3. at 2589. He notes that in this 
case there has been no finding of discrimination against Little. 
He argues that the relief provided to Little violates the rights 
of innocent third parties.

We do not find the Stotts decision to be controlling in 
the instant case. Stotts is distinguishable from the case at 
bar in at least three respects.2 First, a primary basis of the

1
Section 706(g) provides in pertinent part:

No order of the court shall require the admission or 
reinstatement of an individual as a member of a union, 
or the hiring, reinstatement, or promotion of an 
individual as an employee, or the payment to him of 
any back pay, if such individual was refused 
admission, suspended, or expelled, or was refused 
employment or advancement or was suspended or 
discharged for any reason other than discrimination on 
account of race, color', religion, sex, or national 
origin or in violation of section 704(a) of this 
title.

2
Amicus NAACP Legal Defense and Educational Fund, Inc., 

suggests a fourth distinction: In this case, unlike in Stotts, 
the employer involved is the federal government. When Congress 
passed the Equal Employment Opportunity Act of 1972, one of its 
central concerns was the relegation of minorities to low status 
jobs in the federal service. It therefore enacted Section 717, 
not only making Title VII applicable to the federal government, 
but also imposing unique affirmative action obligations on 
federal agencies. Amicus thus contends that, at least as to the 
federal government, Section 706(g) does not bar enforcement of 
effective affirmative action. Because we find the court's order 
fully supported on other grounds, we need not reach this 
contention.

13



Supreme Court's holding in Stotts is that the district court's 
order required the city to violate the provisions of a bona fide 
seniority system. Section 703(h) of Title VII specifically 
provides that it is not an unlawful employment practice to apply 
different standards pursuant to a bona fide seniority system.
The court identified the "issue at the heart" of Stotts as 
"whether the District Court exceeded its powers in entering an 
injunction requiring white employees to be laid off,_when the 
otherwise applicable seniority system would have called for the 
layoff of black employees with less seniority." Id. at 2585. In 
the case at bar there is no contention that a bona fide 
seniority system will be affected by the special master's order.

A second factor distinguishing the current case from 
Stotts is that no third party rights are involved. In Stotts 
the court's order would have resulted in white employees being 
laid off in place of less senior black employees. In this case, 
the special master ordered Little promoted to a vacant position. 
No white employee was displaced to make room for Little. That 
no third parties were injured is attested by the fact that no 
non-class member has attempted to intervene in this suit. When 
the consent judgment was originally entered, a fairness hearing 
was held, and no non-class members objected to the consent 
judgment, although notice was given throughout the Air Force 
base. The Secretary nevertheless argues that the rights of

14



innocent third parties were violated by the special master's 
order.- We question the standing of the Secretary to assert the 
rights of third parties whom he has been unable to identify.

Finally, the most significant factor distinguishing this 
case from Stotts is that the consent judgment here was 
voluntarily entered into by the parties. In Stotts, the city 
objected to the modified decree which was before the Supreme 
Court. Stotts therefore dealt with the power of a-court to 
modify a consent judgment over the objection of one of the 
parties. The Supreme Court specifically held that the order of 
the district court was not authorized by the original consent 
decree. In contrast, we have held here that the special 
master's order was fully authorized by the consent judgment 
agreed to by the Secretary and the plaintiff class. Here, 
unlike in Stotts, the special master specifically found that the 
Air Force had violated the consent judgment it had voluntarily 
entered.

This distinction makes the legal basis of Stotts 
inapplicable. Stotts relied on Section 706(g) of Title VII 
which provides that "[n]o order of the court shall require the . 
. * promotion of an individual . . .  if such individual was 
refused . . .  advancement . . .  for any reason other than 
discrimination." This provision merely limits the power of a 
court to order certain remedies under Title VII in the absence 
of a finding that the promoted individual was a victim of 
discrimination. It does not limit the remedies to which parties

15



may voluntarily agree under a consent judgment. See Vanguards
of City of Cleveland, No. 83-3091, slip op. at 14-15 (6th Cir. 
Jan. 23, 1985) . The Supreme Court recognized that cases like 
this are different from Stotts when it stated:

[T]he Court of Appeals was of the view 
that the District Court ordered no more than 
that which the City unilaterally could have 
done by way of adopting an affirmative 
action program. Whether the City, a public 
employer, could have taken this course _ 
without violating the law is an issue we 
need not decide. The fact is that in this 
case the City took no such action and that 
the modification of the decree was imposed 
over its objection.

Stotts, 104 S.Ct. at 2590.
Stotts must be read in light of the Supreme Court's 

holding in United Steelworkers of America v. Weber, 443 U.S. 193 
(1979). In Weber, the Court approved a voluntary agreement 
between the employer and the union providing for affirmative 
action. The Court stated:

[S]ince the Kaiser-USWA plan was adopted 
voluntarily, we are not concerned with what 
Title VII requires or with what a court 
might order to remedy a past proved 
violation of the Act. The only question 
before us is the narrow statutory issue of 
whether Title VII forbids private employers 
and unions from voluntarily agreeing upon 
bona fide affirmative action plans that 
accord racial preferences in the manner and 
for the purpose provided in the Kaiser-USWA 
plan.

Id. at 200 (emphasis in original).

16



The Kaiser plan called for a 50-50 placing of blacks and 
whites in the employer's craft training program until the number 
of black craft employees approximated the percentage of blacks 
in the labor force. The Court found this not to be in violation 
of the Act. The Court noted that:

[A]n interpretation of the sections that 
forbade all race-conscious affirmative 
action would bring about an end completely- 
at variance with the purpose of the statute 
and must be rejected.

Id♦ at 202 (citations omitted).
In the instant case, the Secretary and the plaintiff class 

voluntarily negotiated an agreement which, when approved by the 
district court, became a consent judgment. This agreement is in 
compliance with Weber. It provides specific affirmative steps 
to be taken by the Air Force and establishes a remedial scheme 
for failure to comply with its requirements. The Air Force 
failed to take the steps it had voluntarily agreed to take and 
the special master ordered a remedy as authorized by the consent 
judgment. Neither Section 706(g) nor the Stotts decision is 
applicable.

The Secretary contends, however, that Section 706(g) is a 
limitation on the court's power and precludes the court from 
adopting a voluntary consent decree which includes remedies that 
a court could not order in a coercive action under Title VII.
He points to the following language in a footnote in Stotts:

17



C t <  -V

[T]he District Court's authority to adopt 
.• a consent decree comes only from the statute 
which the decree is intended to enforce," 
not from the the parties' consent to the 
decree. System Federation No. 91 v. Wriqht 
364 U.S. 642, 651 (1961). In recognition of 
this principle, this Court in Wriqht held 
that when a change in the law brought the 
terras of a decree into conflict with the 
statute pursuant to which the decree was 
entered, the decree should be modified over 
the objections of one of the parties bound 
by the decree. By the same token, and for 
the same reason, a district court cannot _  
enter a disputed modification of a consent 
decree in Title VII litigation if the 
resulting order is inconsistent with that statute.

Stotts at 2587 n.9. This footnote does not indicate that a 
court is barred from approving a consent decree that provides 
relief beyond that authorized in the underlying statute.
"Consent decrees need not be limited to the relief that a court 
could provide on the merits." Sansom Committee v. Lynn. 735 
F.2d 1535, 1538 (3rd Cir. 1984) (citation omitted). The Court 
quoted the language from Wright to support its holding that a 
court cannot enter "a disputed modification" of a consent decree 
which is inconsistent with the underlying statute, wriqht 
involved a decree which had become patently inconsistent with 
the substantive policy of the underlying statute. As indicated 
in Citizens for a Better Environment v. Gorsuch, 718 F.2d 1118,
1125 (D.C.Cir. 1983), cert, denied, ___ U.S. ___ , 104 S.Ct. 2668
(1984)(citation omitted),

The statement that a district court's 
authority to adopt a consent decree comes 

only from the statute which the decree is 
intended to enforce" means only that the

18



*

focus of the court's attention in assessing 
the agreement should be the purposes which 
the statute is intended to serve, rather 
•‘than the interest of each party to the 
settlement.

See Vanguards, slip op. at 16-17 (citation omitted). The 
voluntary consent judgment in this case is entirely consistent 
with the purposes of Title VII, "a law triggered by a Nation's 
concern over centuries of racial injustice and intended to 
improve the lot of those who had 'been excluded from the 
American dream for so long.'" Weber, 443 U.S. at 204, quoting 
110 Cong. Rec. 6552 (1964) (remarks of Sen. Humphrey). As Weber 
made clear, Section 706(g) does not bar voluntary affirmative 
action agreements, such as the consent judgment in this case; it 
is merely a limit on what a court may "require" in a coercive 
action under Title VII.

III. CONCLUSION
In conclusion, we hold that the special master and the 

district court correctly found that the Air Force had violated 
the good faith provisions of the consent judgment. The remedy 
ordered for this violation is fully authorized by the consent 
judgment and, therefore, is not in violation of Section 706(g) 
of Title VII.

The judgment of the district court is AFFIRMED*.
The mandate shall issue FORTHWITH.

* Before this panel is a motion of Raymond Little to 
consolidate with this appeal a subsequent appeal by the 
Secretary of the Air Force from a judgment granting attorney's 
fees to Messrs. Spriggs and Warren. That appeal is No. 84-3694.

19



,, r *

Xt is based in large part on the denial by the special master of
fura°n,»̂ n dl®c3ualify Messrs. Spriggs and Warren as counsel for the PMC. --The Secretary strongly objects to such consolidation 
one ground for such objection being "consolidation of these two 
appeals clearly would result in a substantial delay in decidinq 
Mr. Little s case, contrary to the interests of both the 
Secretary and Mr. Little in a prompt adjudication of the 
appeal." Another ground for his opposition is stated: "A promDt 
decision in No. 84-3266 (this case) is needed to provide 
guidance to the district court and the parties in these other proceedings."

Agreeing with the Secretary's contention that a prompt 
decision of the Little appeal is required, we have denied the motion to consolidate the two appeals.

20



CERTIFICATE OF SERVICE
This will certify that I have this date served the 

following counsel in this action with true and correct copies of 
the foregoing ATTACHMENTS TO BRIEF FOR PLAINTIFF CLASS-APPELLEES 
RESPONDING TO BRIEF OF PROPOSED INTERVENOR-APPELLANTS by placing 
said copies with Federal Express at Los Angeles, California, for 
guaranteed delivery next morning, fully prepaid, addressed as 
follows:

Austin E. Catts 
Garland, Nuckolls & Catts 
92 Luckie Street, N.W.
Atlanta, Georgia 30303
Peter R. Maier
Appellate Staff, Civil Division 
Room 3129
U.S. Department of Justice 
9th & Pennsylvania 
Washington, D.C. 20530

Executed this 1st day of May, 1985, at Los Anaeles, 
California. s' /  / //

/lwvnv)^-^
Bi/ll Lann Lee ’
Attorney for Plaintiff Class- 

Appellees