Williams v. City of New Orleans Brief for Plaintiffs-Appellees

    UNITED STATES COURT OP APPEALS 
FOR THE FIFTH CIRCUIT

NO. 84-3611

LARRY WILLIAMS, et al.,
Plaintiffs-Appellees

versus
CITY OF NEW ORLEANS, et al.,

Defendants-Appellees
versus

CINDY DUKE, et al
Limited Intervenors-Appellants.

APPEAL FROM THE UNITED STATES 
DISTRICT COURT FOR THE 

EASTERN DISTRICT OF LOUISIANA

BRIEF FOR PLAINTIFFS-APPELLEES

JULIUS L. CHAMBERS 
0. PETER SHERWOOD 
JUDITH REED

99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900

RONALD WILSON
310 Richards Building
837 Gravier Street
New Orleans, Louisiana 70112



TABLE OF CONTENTS

Pa9e

Table of Cases and Authorities ......................... iv
Certificate of Interested Persons .....................  vii
Statement Regarding Oral Argument .....................  1

Statement of the Issues ................................  1

Statement of the Case ..................................  2
Statement of the Facts .................................  6

Statement of Jurisdiction .............................. 8
Summary of Argument ....................................  9

Argument
I. This Appeal Should be Dismissed for Lack

of Jurisdiction .............................  10
A. Appellants Failed To File a Timely

Notice of Appeal ........................ 10
B. The Order Appealed From Is a Grant of 

Intervention and Therefore Not
Appealable ..............................  1 1

II. This Court Has Already Decided The Issue
Presented by the Instant Appeal ............  12

l



III. PageThe District Court Correctly Held That 
The Applicants For Intervention Do Not 
Satisfy The Requirements For Intervention
Of Right Under Rule 24(a)(2) Of the
Federal Rules of Civil Procedure ......... 16

A. Movants Lack the Legally Protectible 
Interest Necessary To Intervene As
Of Right ................................  16

B. Appellants Are Not Entitled To 
Intervene Because the Interests 
They Seek to Represent Are Not
Cognizable Under Rule 24(a)(2) ......... 19

C. Appellants' Interests Have Been
Adequately Represented and to The 
Extent That Their Interests Were Not 
Represented for Purposes of Contesting
The Consent Decree, The Limited 
Intervention Granted Accomplishes
This Purpose........................... 21

IV. The District Court Did Not Abuse Its
Discretion in Grantin Appellants Limited
Intervention Under Rule 24(b) ...............  23

CONCLUSION



APPENDICES

Appendiix A: Minute Entry, December 9, 1981 
(Opinion of District Court on 
Venezia intervention)

Appendix B: Fifth Circut per curiam opinion 
dated January 18, 1982

Appendix C: Order of district court entered 
July 12, 1984

Appendix D: Excerpt of brief filed in 
Williams v. City of New Orleans, 
No. 81-3305

-  i n  -



AUTHORITIES

Cases:
Airlines Stewards & Stewardesses Local 550 v.

American Airlines,Inc., 573 F.2d 960 
(7th Cir. 1978), cert, denied, 439 U.S.
439 U.S. 876 ( 1978)......................... 20,21

Allen Calculators, Inc. v. National Cash Register
Co., 332 U.S. 137 (944)....................  23

Armstrong v. Board of School Directors, City 
of Milwaukee, 616 F.2d 305 (7th
Cir. 1980)..................................  20

Brown v. New Orleans Clerks and Checkers,
590 F .2d 161 (5th Cir. 1979)...............  9,11

Cohn v. EEOC, 569 F .2d 909 (5th Cir. 1978).....  23
Conway v. Chemical Leaman Tank Lines, Inc.,

644 F . 2d 1059 (5th Cir. 1981).............. 13,14
Cotton v. Hinton, 559 F.2d 1326 (5th Cir.

1977)........................................ 20,21
Diaz v. Southern Drilling Corp., 427 F.2d

1118 (5th Cir. 1970)........................  16
Donaldson v. United States, 400 U.S. 517

(1971) ....................................  16
Equal Employment Opportunity Commission v.

American Telephone & Telegraph Co., 556 F .2d
167 (3d Cir. 1977) .......................  20

Franks v. Bowman Transportation, Co.,424 U.S.
747 (1976) ................................  18

Handi Investment Co. v. Mobile Oil Corp.,
653 F. 2d 391 (5th Cir. 1981)   13

Page

IV



Page
Kartell v. Blue Shield of Massachusetts, Inc.,

687 F. 2d 543 (1st. Cir. 1982) ............ 1 1
Kirkland v. New York State Department of Correctional 

Services, 771 F.2d 1117 ((2d Cir.
1983> ..............................  9,17,18,19,20,22

Korioth v. 8riscoe, 523 F.2d 1271 (5th Cir. 1975)___  23
Ordnance Container Coro. v. Sperry Rand Corp., 478 F.2d

844 (5th Cir. 1 973) .............................  22
Pate v. Dade County School Board, 588 F .2d 501 (5th Cir.1979).................................................. 21
Payne v. Travenol Laboratories, 673 F.2d 798 (5th Cir.)

rehearing denied, 683 F.2d 417 ( 1982) .......... 1 3

Rodriguez v. Civil Service Commission, 337 So.2d 308 (La. App.1976) ........................................ 1

Rios v. Enterprise Ass'n Steamfitters Local Union
638 of U.A., 520 F .2d 352 ( 2d Cir. 1975).......  19

Shore v. Parklane Hosiery Co., 606 F .2d 354 (2dCir. 1979)....................................... n
Smuck v. Hobson, 408 F.2d 175 (5th Cir. 1969).....  24
Stallworth v. Monsanto, 558 F.2d 257 (5th Cir.

1972>....................................  9,11,17,23
Tatro v. State of Texas, 703 F.2d 823 (5th Cir.

1983)......................................... 1 3
United States v. American Telephone & Telegraph Co.,

642 F . 2d 1285 (5th Cir. 1980)................ 20
United States v. City of Jackson, Mississippi, 519 F.2d

1147 (5th Cir. 1975) ........................  19

United States v. City of Miami, Fla., 614.2d 1322 (5th
Cir. 1980) ...................................  20,21

United States v. Perry County Board of Education,
567 F. 2d 277 (5th Cir. 1978)) ...............  21

v



Page
United States v. South Bend Community Corp., 710 F 

(7th Cir. 1983), cert, denied, U.S. ,
80 L.Ed.2d 181 (1984)..........................

White v. Murtha, 377 F.2d 428 (5th Cir. 1967)....
Williams v. City of New Orleans, 543 F. Supp.

662 (1982)...................................
Williams v. City of New Orleans, 694 F.2d 987

(5th Cir. 1983),reversed on rehearing en banc, 
729 F.2d 1554 (1984)..........................

Rules:
Federal Rules of Appellate Procedure
Rule 3(a)............................

4(a)(1).........................
4(a)(5).........................
8 (a) ...........................
28(e) ..........................

Local Rule 28.2.3...................
Federal Rules of Civil Procedure
Rule 23(b)(2) 

24(a)(2) 
24(b) ..

Statutes:
28 U.S.C. <? 1291.............................

Other Authorities:
Advisory Committee
Notes, Amendments to Federal Rules of 
Civil Procedure, 39 F.R.D. 69, 111 (1966) ...
7A Wright and Miller, Federal Practice and 
Procedure § 1923 ............................

.2d 394

9,13,15

passim

passim

10
9,10

10
4
6

6

5,23
1,5,16

1,23,24

10

24

9,1 1^23

vi



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. 84-3611

LARRY WILLIAMS, et al.,
Plaintiffs-Appellees, 

versus
CITY OF NEW ORLEANS, et al.,

Defendants-Appellees, 
versus

CINDY DUKE, et al.,
Limited Intervenors-Appellants.

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the 
following listed persons have an interest in the outcome of 
this case. These representations are made in order that the 
Judges of this Court may evaluate possible disqualification 
of recusal.

1. Larry Williams, Gustave Thomas, Willie Carter,
Jr., Edgar Morgan, Jr., Ronald Bechet, Sr.,
Patricia LeBeaux, Jeanne McGlory Wallace, Jacob R. 
Johnson, Timothy McGruder, Nathaniel A. Ray, III, 
Sterling Hayes, Samuel Reine, and Arzelia Jones, on 
behalf of themselves and all other black persons 
similarly situated, plaintiffs.

- vi i -



2. The City of New Orleans, Louisiana, Ernest Morial, 
Mayor, Henry Morris, Superintendent of Police, The 
New Orleans Civil Service Commission and all 
members thereof, defendants.

3. Police Officers Martin Venezia, Larry Lombas, Cindy 
Duke, Majorie Ellerbushch, Carolyn Weigand, Capt. 
Horace Perez, Lt. Stephen Rodriguez, Sgt. Luiz 
Murillo, Ptn. Michael Mones, intervenors.

4. Plaintiffs' attorneys:
Julius Chambers, Esq.
0. Peter Sherwood, Esq.
Judith Reed, Esq.
99 Hudson Street, 16th Floor 
New York, New York 10013
Ronald L. Wilson, Esq.
310 Richards Building
837 Gravier Street
New Orleans, Louisiana 70112
U. Gene Thibodeaux, Esq.
425 Alamo Street
Lake Charles, Louisiana 70601

5. Defendants' attorneys:
Salvador Anzelmo, Esq.
City Attorney 
City of New Orleans 
City Hall - Civic Center 
New Orleans, Louisiana 70130
Gilbert Buras, Esq.
City Attorney 
City of New Orleans 
City Hall - Civic Center 
New Orleans, Louisiana 70130
Ralph Dwyer, Esq., Attorney for 
City Civil Service Commission 
1402 American Bank Building 
New Orleans, Louisiana 70130

- viii -



Dale C. Wilks, Esq.
234 Loyola Avenue, Suite 815 
New Orleans, Louisiana 70112 
Attorneys for Appellants 
Horace Perez, et al.
Lynne W. Wasserman, Esq.
Pawer, Brian, Hardy & Zatzkis 
601 Poydras Street, Suite 2355 
New Orleans, Louisiana 70130 
Attorneys for Appellants 
Cindy Duke, et al.
Sidney Bach, Esq.
221 Carondelet Street 
New Orleans, Louisiana 70130 
Attorneys for Appellants 
Martin Venezia, et al. and 
Larry Lombas, et al.

6. Intervenors' attorneys:

Attorney for Plaintiffs-Appellees

IX



STATEMENT REGARDING ORAL ARGUMENT

Plaintiffs-appellees respectfully suggest that oral 
argument is unnecessary in this case and that dismissal of 
this appeal for lack of jurisdiction or alternatively, 
summary affirmance is appropriate. The issue raised by 
appellants has been decided by this Court in an earlier 
appeal. Additionally a review of the briefs submitted, both 
in the instant appeal and the prior appeal, confirms that 
appellants have no interest sufficient to qualify for 
intervention of right under Rule 24(a)(2), Federal Rules of 
Civil Procedure, and that, in any event, a grant of limited 
intervention under Rule 24(b) was correct and not an abuse of 
discretion.

STATEMENT OF THE ISSUES

1. Whether this Court has jurisdiction of this appeal, 
where notice of appeal was not timely and an order granting 
intervention is not appealable?

2. Whether this Court should adhere to its prior 
decision that the district court could limit the scope of 
intervention in accord with the interest asserted by inter- 
venors-appellants?

3. Did the district court err or abuse its discretion 
in adhering to its earlier order granting limited inter­
vention pursuant to Rule 24(b) of the Federal Rules of Civil 
Procedure, where applicants for intervention previously had



been granted and had successfully excercised limited inter­
vention and had shown no additional facts that would justify 
a change in the prior order?

STATEMENT OF THE CASE

Plaintiffs, black police officers, filed this action in 
1973 as a class action to challenge the pattern and practice 
of racial discrimination in hiring, promotions, discipline 
and other conditions of employment in the New Orleans Police 
Department. Named as defendants were the City of New Orleans, 
its Mayor and the Superintendent of Police, all of whom are 
represented by the City Attorney, and the New Orleans Civil 
Service Commission and the members of the Commission, who are 
represented by separate counsel.

Plaintiffs filed a motion in 1973 for a temporary 
restraining order and a preliminary injunction enjoining 
defendants from making any promotions to the rank of ser­
geant. By stipulation dated December 12, 1973, that motion 
was continued indefinitely. After years of discovery and an 
appeal to this Court, plaintiffs submitted another motion for 
a temporary restraining order and preliminary injunction to 
restrain defendants, inter alia, from making any promotions. 
Subsequent to the filing of that motion, and before the 
district court ruled on the motion, all parties, through 
their counsel, agreed to make no promotions to the ranks of 
sergeant and lieutenant until the issue of liability was 
resolved. By order dated January 12, 1981, the district
court approved this stipulation.



The "Venezia intervenors” filed a motion for leave to 
intervene of right or, in the alternative, to intervene 
permissively, on January 19, 1981.

At the time of the Venezia intervenors' motion to 
intervene, trial in this case was set for May 6 , 1981. 
Discovery was to be completed by April 6 , 1981. In May, as a 
result of a pending criminal case, trial was rescheduled for 
October 13, 1981.

The motion was referred to a Magistrate. The Magistrate 
recommended that the motion be denied, by entry dated 
February 13, 1981. Venezia intervenors moved for a review of 
the Magistrate's order. The district court granted the 
motion and remanded the matter for a hearing before the 
Magistrate. The hearing was held on March 31, 1981, and by 
minute entry dated April 1, 1981, Magistrate Hughes recom­
mended that the motion be granted.

Plaintiffs moved for a review of the Magistrate's order. 
After oral argument on May 6 , 1981, the district court 
reversed the order of the Magistrate and denied the Venezia 
intervenors' motion to intervene.

1

There are four sets of intervenors: the Venezia intervenors,
who prosecuted an earlier appeal on the issue presented by 
this appeal (No. 81-3305), the Perez intervenors,the Lombas 
intervenors, and the Duke intervenors (see infra, p. 7). 
They are collectively referred to in this brief as inter­
venors or intervenors-appellants, except where necessary to 
distinguish ammong the groups.

3



Beginning in April, 1981, at the behest of the district 
court, counsel for plaintiffs initiated discussion of 
settlement. In September and October, 1981 earnest settlement 
discussions occurred and on October 13, 1981, the date set 
for trial, the parties announced in open court the basic 
terms of an agreement they had reached. The district court 
gave the parties until October 20, 1981 to reach agreement on 
the final terms of the proposed settlement and until October 
23, 1981 to file Notice of Motion for Approval of Notice to
the Class and to Set a Date for the Fairness Hearing on the

2
terms of the settlement.

On October 13, 1981, Venezia intervenors filed their 
"Motion for a Stay or Injunction Pending Appeal and for 
Summary Reversal of the district court's Order which Denied 
Appellants' Request to Intervene." By Order dated October 19, 
1981, this Court issued a stay of any conditional or final 
approval of any settlement and directed those appellants to 
seek a stay from the district court in conformance with Rule 
8 (a), Federal Rules of Appellate Procedure.

Those appellants filed an application for a stay in the 
district court on October 22, 1981. On November 16, 1981, 
after receiving submissions and hearing oral argument, the 
district court denied the motion for a stay but indicated

2 After the announcement of the settlement, the remaining three 
sets of intervenors sought intervention. Those parties were 
granted limited intervention, and they did not appeal that 
disposition of their motion for intervention.

4



that it would grant appellants leave to intervene to contest
the terms of the proposed consent decree (see minute entry
December 9, 1981, opinion of the district court, included

3
with this brief as Appendix A).

On January 18, 1982 this Court issued an unpublished, 
per curiam opinion approving the district court's use of 
limited intervention. Williams v. City of New Orleans, No. 
81-3305 (copy attached as Appendix B hereto). A motion for 
clarification of this Court's order was denied January 22, 
1982.

During remand proceedings in the district court, on June 
4 , 1984, all limited intervenors again filed a motion to 
intervene pursuant to Rule 24(a) and 24(b)(2), Fed. R. Civ.
P. By order dated July 6 , 1984, and entered July 12, 1984, 
the district court reaffirmed its earlier order, granting 
limited intervention (copy atached as Appendix C hereto). On

3 The district court ultimately withheld approval of the 
proposed settlement, because it found one provision to be 
objectionable. Williams v. City of New Orleans, 543 F. Supp. 
662 (1982). That provision required the promotion to certain 
grades of one black for every white police officer until 
black officers constituted 50% of all ranks of the New 
Orleans Police Department. 543 F. Supp. at 684. That 
decision was initially reversed by this Court, 694 F .2d 987 
(1983), but upon reconsideration by this Court, sitting en 
banc, the district court decision withholding approval of the 
proposed settlement was affirmed. 729 F.2d 1554 (1984). The question of the scope of intervention was not before either 
the panel or the full Court.

5



August 31, 1984, more than 30 days after entry of that order 
the intervenors-appellants filed a notice of appeal, seeking 
review of the entered July 12th.

STATEMENT OF THE FACTS

The facts most relevant to this appeal have been set
forth in the foregoing Statement of the Case. We note
additionally that plaintiffs-appellees were obliged to
provide a Statement of the Case that differed from that set
forth in the brief for intervenors-appellants, in at least
one significant respect. The appellants failed to advise
this Court that the issue presented by this appeal had been

4before this Court in an earlier appeal. This fact is
particularly important, because, should this Court decide it
has jurisdiction to hear this appeal, the outcome of that
earlier appeal is dispositive of this appeal.

Further facts that provide helpful background on the
events surrounding intervention are set forth in the district

5court's opinion relating to the settlement, as follows:

In light of this Court's previous decision, this appeal is 
frivolous, particularly where identical parties seek review of 
the same issue. See, United States v. South Bend Communitv 
School Corp., 710 F.2d 394, 396 (7th Cir. 1983), cert, denied, 
___ U.S. ___, 80 L. Ed. 2d 181 ( 1984). ---- ---- ~
Plaintiffs-appellees recognize that the rules of this Court 
indicate that a description of the facts of a case are to be 
supported by citation for the record, Loc. R. 28.2.3. 
Alternatively, the parties may cite to the appendix required 
to be filed and served by appellants. Rule 28(e), Fed. R.

6



Third parties first began to assert 
interests in this litigation several 
months before the settlement was an­
nounced. On January 19, 1981, a week 
after a stipulation by the parties that no 
vacancies in the ranks of lieutenant and 
sergeant would be filled from existing 
promotional registers, Martin Venezia and 
thirteen other white officers on the 
sergeant promotional register sought leave 
to intervene. 5 /  On October 13, 1981, the 
day the trial was scheduled to begin,
Horace Perez and three other Hispanic 
American officers, on behalf of all 
Hispanic-American officers on the NOPD, 
moved to be joined as parties under Rule 
19 of the Federal Rules of Civil Proce­
dure. A similar motion was filed on 
November 2, 1981 by Larry Lombas, a white 
officer, on behalf of approximately 600 
officers objecting to the proposed consent 
decree. Finally, a fourth motion for 
joinder or leave to intervene was filed by 
Cindy Duke and two other female NOPD 
officers, on behalf of all female of­
ficers, claiming that the proposed settle­
ment would impair their employment interests.

Following a hearing on the motions by 
the Perez, Duke and Lombas groups and on a 
motion for stay by the Venezia group, I 
permitted all four groups to intervene for 
the limited purpose of challenging the 
lawfulness and fairness of the proposed

App. P. We rely on the district court opinion here because 
the opinion contains a correct and succinct version of the 
facts, particularly with reference to the narrow issue of 
this appeal. In addition, the appellants failed to file and 
serve an appendix as required by Rule 30, Fed. R. App. P.; 
nor have plaintiffs-appellees been served with a later copy 
of their brief with appropriate citations.
5/ After I denied the Venezia group's motion to

intervene as a party defendent on May 6 , 1981, 
they appealed to the United States Court of 
Appeals for the Fifth Circuit. On January 18,
1982, the court of appeals ordered them to seek 
the limited lintervention I had granted the 
three other groups of interested parties.

7



consent decree. I also announced that any 
NOPD officer would be allowed to file 
written objections to the decree.
Including the 623 officers in the Lombas 
group, over half the NOPD availed them­
selves of this opportunity.

543 F. Supp. at 669-70.
As the foregoing excerpt from the district court's 

opinion on the merits shows, despite the fact that the 
motions to intervene were not filed until the litigation had 
been ongoing for more than seven years and was close to 
settlement, the district court, nonetheless granted limited 
intervention. Nor was that grant illusory, for the inter- 
venors-appellants were full participants in the ensuing 
four-day fairness hearing in March-April 1982. At that time 
the district court heard evidence from a number of witnesses, 
including lay and expert witnesses on behalf of the inter- 
venors, 543 F. Supp. at 670; 729 F.2d at 1562.

STATEMENT OF JURISDICTION

Plaintiffs-appellees contend that there is no juris­
diction to hear this appeal becuase notice of appeal was not 
timely filed, or alternatively, because the district court's 
order constitutes a grant of intervention, which is not 
appealable.

8



SUMMARY OF ARGUMENT

This appeal should be dismissed for lack of juris­
diction. First appellants did not file a timely notice of 
appeal as required by Rule 4(a), Federal Rules of Appellate 
Procedure. Secondly, the district court's July 12th order is 
a grant intervention and is therefore not appealable as of 
right. 7A Wright and Miller, Federal Practice and Procedure 
§ 1923, Brown v. New Orleans Clerks & Checkers, 590 F.2d 161 
(5th Cir. 1979).

Should this Court decide it has jurisdiction to hear 
this appeal, plaintiffs-appellees submit that the district 
court's July 12th order should be summarily affirmed. The 
propriety of a limited intervention, having been decided by 
this Court in an earlier appeal, is now law of the case.
White v. Murtha, 377 F.2d 428 (5th Cir. 1967). Additionally, 
appellants are unable to satisfy the requirements of Rule 
24(a), and appellants have been granted the intervention that 
is commensurate with the interests they have asserted, 
Kirkland v. New York State Department of Correctional 
Services, 721 F .2d 1117 (2d Cir. 1983), particularly, where, 
as here, the rights asserted are not contractual in nature. 
Stallworth v. Montsanto, 558 F .2d 257 (5th Cir. 1977).

9



ARGUMENT
I .

This Appeal Should be Dismissed for Lack of 
Jurisdiction
A. Appellants Failed to File a Timely Notice 
of Appeal

The Federal Rules of Appellate Procedure provide that a
notice of appeal must be filed within "30 days after the date
of entry of the judgment or order appealed from" unless the
time for filing such notice is extended upon a showing of
"excusable neglect or good cause." Rule 4(a)(1) and (5). As
provided by Rule 3(a), Fed. R. App. P., the requirement of
timely filing of a notice of appeal is jurisdictional.
As noted in the Statement of the Case, intervenors-appellants
filed their notice of appeal on August 31, 1984. The time
for filing a notice of appeal from the July 12th order
expired on August 13, 1984, and the time for filing said
notice was not extended. Thus, the instant appeal must be
dismissed, because of appellants' failure to file a timely

6
notice of appeal.

Intervenors-appellants attempt to extend the time for filing 
a notice of appeal by the subterfuge of noting in their brief 
at page 5 that the en banc judgment on the consent decree 
became final on August 21, 1984. However, that date is 
irrelevant for purposes of this appeal, for as noted supra, 
n.3, that appeal concerned only the propriety of the district 
court's disapproval of the consent decree —  not the scope of 
intervention.

10



B. The Order Appealed From Is a Grant of 
Intervention and Therefore Not Appealable

Moreover, even if notice of appeal had been timely
filed, the instant appeal should be dismissed because the
asserted basis for appeal, 28 U.S.C. § 1291, is not present.
It is settled authority that an order granting intervention
is not final and therefore not appealable. See, generally, 7A
Wright and Miller, Federal Practice and Procedure § 1923, at
pp. 626-27. Thus, because the July 12th order constitutes a

7
grant of intervention, it is not appealable. That order 
"made appellants parties to the litigation, thus giving them 
the right to appeal from an unsatisfactory final order."
Shore v. Parklane Hosiery Co., 606 F.2d 354, 356 (2d Cir.
1979). See also, Kartell v. Blue Shield of Massachusetts,
Inc. , 687 F .2d 543, 548-50 (1st Cir. 1982); Brown v. New 
Orleans Clerks & Checkers, 590 F .2d 161, 164 (5th Cir. 1979).

Nor is the provisional jurisdiction rule announced in 
Stallworth v.Montsanto, 558 F.2d 257 (5th Cir. 1977), 
applicable because the policy underlying that rule is not 
present. At present, there is no consent decree before the 
district court. Intervenors-appellants seek review, based on 
some inchoate, anticipatory injury that might be wrought by a 
new decree that may have a "quota" with consequences for the

7 Intervenors-appellants simply seek review of an order that 
did not grant all that they wanted, although nowhere do they 
state what other actions they would take if granted uncon­
ditional intervention.

11



appellants (brief at p. 10). Such a question should be 
considered by the district court in the first instance, if 
and when it arises. The time for an appeal on the scope of 
intervention will arrive, if at all, when appellants are 
denied some right that they would have had, but for the 
condition upon their intervention.

II.
This Court Has Already Decided The 
Issue Presented by the Instant 
Appeal

Three years ago, this Court issued the following order:
Since the limited intervention offered 
would accord sufficient protection to the 
interest asserted by appellants in the 
subject of the action, we vacate the stay 
order entered on the 19th day of October,
1981, deny appellants' motion for summary 
reversal of the district court's order 
denying appellants leave to intervene, and 
remand this cause to the United States 
District Court for the Eastern District of 
Louisiana for further proceedings not 
inconsistent with this order.

Williams v. City of New Orleans, No. 81-3305, Slip Op., p. 2.
Intervenors-appellants' brief filed in this Court is 

virtually an exact duplicate of their latest motion to 
intervene filed in the district court. In the July 12th 
order, for which review is sought, the district court 
specifically found that intervenors had "advanced no reason" 
that would justify alteration of its earlier (December 9, 
1981). The district court also held that the interests of

12



justice were served by intervenors continuing in their 
present status, i.e., as persons having an opportunity to 
object to any settlement agreement and the right to appeal 
any final judgment on a settlement agreement. That status 
has been specifically approved by this Court in its January 
18th opinion.

The law of this Circuit on the propriety of recon­
sideration of the issue now before the Court is well- 
established :

While the "law of the case" doctrine is 
not an inexorable command, a decision of a 
legal issue or issues by an appellate 
court establishes the "law of the case" 
and must be followed in all subsequent 
proceedings in the same case in the trial 
court, unless the evidence on a subsequent 
trial was substantially different, 
controlling authority has since made a 
contrary decision of the law applicable to 
such issues, or the decision was clearly 
erroneous and would work a manifest 
injustice.

White v.Murtha, 377 F.2d 428, 431-32 (5th Cir. 1967) 
(footnotes omitted). See aso, Tatro v. State of Texas, 703 
F .2d 823, 826 (5th Cir. 1983); Handi Investment Co. v. Mobil 
Oil Corp., 653 F .2d 391, 392 (5th Cir. 1981); Conway v. 
Chemical Leaman Tank Lines, Inc., 644 F.2d 1059, 1061-62 (5th 
Cir. 1981); Payne v. Travenol Laboratories, 673 F .2d 798, 816 
n .24 (5th Cir.), rehearing denied, 683 F.2d 417 (1982).

13



Intervenors-appellants did not come forth before the 
trial court with evidence that was "so different from the 
assumed factual basis for [prior decisions on intervention] 
that [those] legal conclusions no longer apply." Tatro v. 
State of Texas, supra. Indeed, the district court found that 
intervenors had not come forward with any reasons for 
reconsideration of this issue. July 12th Order. Nor have 
appellants cited any supervening authority, to either the 
district court or this Court, that would undermine this 
Court's earlier affirmance of the district court's resolution 
of the issue. Finally, although the intervenors wisely did 
not attempt to argue before the district court that the 
limitation on intervention worked "manifest injustice," the 
district court considered, both in its earlier December 1981 
order and the July 12th Order, whether the scope of interven­
tion served the interests of justice and correctly concluded 
that it did. Thus, this appeal, frivolous on its face, must 
be dismissed because the decision on the scope of interven­
tion is now law of the case.

Unlike the plaintiffs in Conway v. Chemical Leaman Tank 
Lines, Inc., supra, the intervenors have "had their day in 
court," with respect to the guestion of the proper scope of 
intervention, 644 F.2d at 1062. Intervenors may not be 
permitted to abuse the judicial process by prosecuting an 
appeal on an issue considered no fewer than three times, 
twice by a district judge intimately familiar with the

14



litigation, and once by this Court, for it would lead to an 
erosion of the very principles the "law of the case" doctrine 
is designed to further:

The "law of the case" rule is based 
on the salutary and sound public policy 
that litigation should come to an end. It 
is predicated on the premise that "there 
would be no end to a suit if every 
obstinate litigant could, by repeated 
appeals, compel a court to listen to 
criticisms on their opinions or speculate 
of chances from changes in its members, 
and that it would be impossible for an 
appellate court "to perform its duties 
satisfactorily and efficiently" and 
expeditiously "if a question, once 
considered and decided by it were to be 
litigated anew in the same case upon any 
and every subsequent appeal" thereof.

White v. Murtha, supra, 377 F.2d at 431 (footnote omitted). 
The district court, while not expressly relying on the law of 
the case doctrine, correctly required that intervenors 
demonstrate, by evidence or rule of law, some justification 
for a change in the prior grant of limited intervention. 
Intervenors-appellants do not complain of a lack of oppor­
tunity to do so, and in fact have failed to show before the 
trial court or this court any reason to "litigate anew" this 
issue in this appeal.

15



ARGUMENT
III.

The District Court Correctly Held 
That The Applicants For Intervention 
Do Not Satisfy The Requirements For 
Intervention Of Right Under Rule 
24(a)(2) Of The Federal Rules Of 
Civil Procedure.

Rule 24(a)(2) of the Federal Rules of Civil Procedure 
entitles an individual to intervene as of right:

... [1 ] when [he] claims an interest
relating to the property or transaction 
which is the subject of the action and [2 ] 
he is so situated that the disposition of 
the action may as a practical matter 
impair or impede his ability to protect 
that interest [3] unless [his] interest is 
adequately represented by existing 
parties.

The district court was eminently correct in holding that the 
intervenors-appellants have continued to be unable to satisfy 
these requirements.

A. Movants Lack the Legally Protectible Interest 
Necessary To Intervene As Of Right.

Rule 24(a)(2)[1] limits intervention of right to indi­
viduals who possess a "significantly protectible interest in 
the subject matter of the lawsuit," that is "of sufficient 
magnitude ... to conclude that [the applicants are] to be 
allowed to intervene." Donaldson v. United States, 400 U.S. 
517, 531 (1971). As this Court of Appeals stated in Diaz v.

16



intervention of right under Rule 24(a)(2) "requires a
'direct, substantial, legally protectible interest in the
proceeding.'" (citation omitted.) Appellants can cite to no
statute or contract which establishes they have a legally
protectible interest. As such, they fail to comply with the

8
requirements for intervention as of right.

Intervenors-appellants freely concede that they have no 
"contractually protected right to promotion" (Brief at p. 8 ). 
The sole interest offered by intervenors-appellants is an 
entitlement of the "merit system" Cf. Stallworth v. Mont- 
santo, 558 F .2d 257, 268-69 (5th Cir. 1977) awarded them by 
the State Constitution (I d .) The intervenors conclude that 
the State Constitution provides a significant "expectancy" 
(Brief at p. 9). Yet, all that the State Constitution 
provides is that the promotional system be based on "merit" 
which is to be determined "so far as practical" by a compe­
titive examination. Yet, as Judge Sear recognized, "...non­
black officers have no right to demand that an exam or part 
of an exam which produces an adverse impact against blacks be 
administered." 543 F. Supp. at 683. Cf. Kirkland v. New

Southern Drilling Corp., 427 F.2d 1118, 1124 (5th Cir. 1970),

During the earlier "go-round" in this court of the inter­
vention question, plaintiffs-appellees filed an extensive 
brief with this Court. Plaintiffs have here reiterated some 
of the arguments made in that brief, albeit in an abbreviated 
fashion. However, for the Court's convenience we have 
included a copy of the argument sections of the brief filed 
in No. 81-3055 as Appendix D to this brief.

17



York State Department of Correctional Services, 711 F.2d
1117, 1128 (2d Cir. 1983)("Kirkland"); "The only interest
... that intervenors possess is their mere expectation of
promotion to possibly discriminatory selection porocedure."
Such a provision does not elevate intervenors-appellants'
"expectancy" into the "significantly protectible interest"

9
that is required for intervention as of right. As the 
district court has recognized, this provision does not 
restrict the defendants' wide discretion in the use of 
selection procedures, citing Rodriquez v. Civil Service 
Commission, 337 So.2d 308 (La. App. 1976), Min. Entry, Dec.
9, 1981 at pp. 6-7. See also Kirkland, 711 F.2d at 1128. 10

At any rate, the intervention granted by the district 
court permits the intervenors-appellants to go before the 
trial court and assert that any proposed settlement conflicts 
with or is barred by these constitutional provisions.

Intervenors cite Frank v. Bowman Transportation Co., 424 U.S.
747 (1976), in support of their position (Brief at p. 9). 
However, in Franks, The Supreme Court was considering the 
effect of a grant of retroactive seniority to class members 
on "expectations acquired by other employees seniority 
argument." Id. at 7796 (emphasis added).
See App. C., pp. 11-12 for a description of the discretion that 
may be exercised by the Director of the Civil Service Commission 
and the "one in three" rule.

18



B. Appellants Are Not Entitled To Intervene Because 
The Interests They Seek To Represent Are Not 
Cognizable Under Rule 24(a)(2).

This Court stated, in affirming the denial of interven­
tion in an employment discrimination case,

[W]e feel that the requirements of Rule 24 
are not met. The interest that must be 
impaired or impeded under the Rule is the 
substantive one created by Title VII of 
the 1964 Civil Rights Act.

United States v. City of Jackson, Mississippi, 519 F.2d 1147, 
1153 (5th Cir. 1975); accord, Rios v. Enterprise Ass'n 
Steamfitters Local Union #638 of U.A., 520 F .2d 352 (2d Cir. 
1975). The only interest which appellants claim will be 
injured is their desire to be promoted sooner than they might 
have been absent the lawsuit. As the Court noted in Kirk­
land , supra, an interest that turns, only upon a "mere 
expectation of promotion pursuant to possibly discriminatory 
selection procedures ..." at best "entitles intervenors to be 
heard on the reasonableness and legality of the [settlement] 
agreement...." 711 F.2d at 1128.

It is clear that to the extent the intervenors-appel- 
lants have any interests in this suit, the district court 
exercised its discretion properly to tailor the intervention 
to fit the protection of the asserted interests:

[F]ull party status seems out of propor­
tion to the movants' legitimate needs.
Except for the female police officers, the 
movants are not asserting any independent

19



claims of discrimination; they merely seek 
opportunity to convince me or an appellate 
court that the consent decree is not fair, 
adequate, and reasonable with respect to 
their interests. Even the female police 
officers have a greater interests in 
objecting to certain specific provisions 
of the proposed consent decree than in 
assuming a full-scale role in bringing 
this lawsuit to a comprehensive con­
clusion .

December Order, App. A p. 9. See also Kirkland, supra, 711 
F.2d at 1128 ("thus, Judge Griesa granted intervenors the 
intervention rights to which their interests entitled them 
when he permitted them to intervene solely to object to the 
settlement," citing Airline Stewards & Stewardesses Local 550 
v. American Airlines, Inc., 573 F.2d 960, 964 (7th Cir.
1978); Equal Employment Opportunity Commission v. American 
Telephone & Telegraph Co., 556 F.2d 167, 173 (3d Cir.
1977)). See also United States v. American Telephone & 
Telegraph Co., 642 F.2d 1285, 1291 (5th Cir. 1980).

The possibility that this case may be settled through a 
consent decree does not harm appellants in any legally 
cognizable manner. Title VII favors settlements in employ­
ment discrimination suits because "there is an overriding 
public interest in favor of settlement." Armstrong v. Board 
of School Directors, City of Milwaukee, 616 F.2d 305, 313 
(7th Cir. 1980), quoting Cotton v. Hinton, 559 F.2d 1326,
1331 (5th Cir. 1977); accord, United States v. City of Miami,

20  -



Fla., 614 F .2d 1322 (5th Cir. 1980). Cf. Airline Stewards
Local 550 v. American Airlines, Inc., 573 F.2d 960, 963 (7th 
Cir. 1978), cert, denied, 439 U.S. 876 (1978).

C. Appellants' Interests Have Been Adequately Repre­
sented By Existing Parties And to the Extent that 
Their Interests Were Not Represented for Purposes 
of Contesting the Consent Decree, The Limited 
Intervention Granted Accomplishes This Purpose.

The only reason given by intervenors-appellants in 
support of their assertion that the plaintiffs and defendants 
did not adequately represent the interests of the intervenors 
is the mere fact of the willingness of defendants to nego­
tiate a consent decree.

The district court, when intervention was first re­
quested, reached the following conclusion:

Mere disagreement with the tactical 
posture of a representative body in 
litigating a class action, however, does 
not give rise to a right of intervention. 
Pate v. Dade County School Board, 588 F.2d 
501 (5th Cir. 1979); United States v.
Perry County Board of Education, 5 6 7 F.2d 
277 (5th Cir. 1978). There is nothing 
unusual or suspicious on its face about 
the defendants' willingness to conclude a 
voluntary settlement of this litigation. 
Title VII encourages such arrangements as 
a matter of positive policy. United States 
v. City of Miami, 614 F.2d 1322 (5th Cir. 
1980); Cotton v. Hinton, 559 F.2d 1326 
(5th Cir. 1977).

21



Minute entry, Dec. 9, 1981, App. A at pp. 8-9. See also en 
banc opinion, 729 P .2d at 1559 (reiterating this Circuit's 
preference for settlement); Kirkland, 711 F.2d at 1128, n.14.

The district court's December 1981 order also pointed 
out that the defendant Civil Service Commission, represented 
by a different counsel than that representing the defendant 
City, had an interest in maintaining "the integrity of the 
merit system," and that this congruity of interest gave "rise 
to a presumption of adequate representation." (Minute Entry, 
Dec. 9, 1981, App. A at p. 9) citing Ordnance Container Corp. 
v. Sperry Rand Corp., 478 F.2d 844 ( 5th Cir. 1973). 1 1

Finally, even if this representation had been inade­
quate, the argument raised by intervenors-appellants proves 
too much, for it makes clear that the grant of limited 
intervention, far from precluding adequate representation of 
their interests, had precisely the opposite effect. (See 
Brief at p. 12: "Had it not been for the limited inter­
vention ... the Consent Decree might very well be in effect 

12
today.") Intervenors do not state what rights they have been 
precluded from exercising.

Similarly the interest in making certain that the district court 
is kept mindful of the State Constitutional provisions is 
adequately represented by the Civil Service defendants.
This Court praised the district court's efforts at con­
sidering of all interests, including those advanced by the 
intervenors, 729 F.2d at 1565.

22



In sum, there was no evidence either at the time of the 
earlier motions and appeal or at the time of the July 12 
Order that appellants' interests were being other than 
adequately represented by defendants, except to the extent 
cured by a grant of limited intervention to contest any 
proposed consent decree.

IV
The District Court Did Not Abuse 
Its Discretion in Granting 
Appellants Limited Intervention 
Under Rule 24(b) .

If, as established supra, there is no right to intervene 
under Rule 24(a), it is wholly discretionary with the 
district court whether to allow permissive intervention under 
Rule 24(b). 7A Wright and Miller, Federal Practice and 
Procedure §1913 at p. 551 (1972). Even if the applicants' 
claim or defense and the main action "have a common question 
of law or fact in common" (Rule 23(b)(2), Fed. R. Civ. P.), the 
refusal to grant permissive intervention "is reviewable only 
for a clear abuse of discretion." Stallworth v. Monsanto, 
supra, 558 F.2d at 269-70; accord, Allen Calculators, Inc, v. 
National Cash Register Co., 332 U.S. 137, 142 (1944); Korioth 
v. Briscoe, 523 F.2d 1271, 1278 n.24 (5th Cir. 1975). The 
grant of limited intervention was entirely proper and can in 
no way be deemed a clear abuse of discretion. See Cohn v.
EEOC, 569 F .2d 909, 911-12 (5th Cir. 1978). Moreover, it is

23



not only intervention under section (b) of Rule 24 that 
intervention may be limited in some way. As the Advisory 
Committee Notes point out, "intervention as of right ... may 
be subject'to appropriate conditions of restrictions re­
sponsive among other things to the requirements of efficient 
conduct of the proceedings." 39 F.R.D. 69, 111 (1966). See 
also, Smuck v. Hobson, 409. F.2d 175, 180 (5th Cir. 1969).

CONCLUSION

For the reasons set forth above, this appeal should be 
dismissed or, alternatively, the decision of the district 
court should be summarily affirmed. The district court's 
grant of limited intervention was proper under Rule 24(a) and 
24(b) and properly followed the "law of the case."

Respectfully submitted,

JULIUS-L. CHAMBERS
V  0. PtfTER SHERWOOD 
" JUDITH REED 
99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900
RONALD WILSON
310 Richards Building
837 Gravier Street
New Orleans, Louisiana 70113

Dated: January 14, 1985

24



CERTIFICATE OF SERVICE

I hereby certify that on this j v day of January, 
1985, I served two copies each of the Brief for Plaintiffs- 
Appellees in Williams v. City of New Orleans on counsel for 
Intervenors-Appellants and counsel for Defendants-Appellees 
by depositing them in the United States mail, first class
postage prepaid, addressed to:

Dale C. Wilks, Esq.
234 Loyola Avenue, Suite 815 
New Orleans, Louisiana 70113 
Attorney for Appellants 
Horace Perez, et al.
Lynne W. Wasserman, Esq.
Fawer, Brian, Hardy & Zatzkis 
601 Poydras Street, Suite 2355 
New Orleans, Louisiana 70130 
Attorney for Appellants 
Cindy Duke, et al.
Sidney Bach, Esq.
221 Carondelet Street 
New Orleans, Louisiana 70130 
Attorney for Appellants 
Martin Venezia, et al. and 
Larry Lombas, et al.
Gilbert Buras, Esq.
Assistant City Attorney 
1300 Perdido Street 
New Orleans, Louisiana 70112 
Attorney for Defendants-Appellees 
City of New Orleans, et al.
Ralph Dwyer, Esq.
503 Whitney Bank Building 
228 St. Charles Avenue 
New Orleans, Louisiana 70130 
Attorney for Defendants-Appellees 
Civil Service Commission, et al.

L ^ , ' L c  l /C
Attorney for Plaintiffs-Appellees



APPENDIX A
Minute Entry, December 9, 1981 

(opinion of district court on Venezia intervention)



v ? .- ’ rt'V

_   ̂ * . &&
^ \ ^ $ i *

MINUTE ENTRY 
SEAR, J.December 9, 1981

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA

LARRY WILLIAMS ET AL.
VERSUS *
THE CITY OF NEW ORLEANS ET AL. *

CIVIL ACTION 
NO. 73-629 
SECTION “G“

On March 9, 1973, plaintiffs filed this class
action alleging discrimination against blades in the 
hiring and promotional practices of the New Orleans 
Police Department. The plaintiffs claim violations of 
the Thirteenth and Fourteenth Amendments to the United 
States Constitution, 42 U.S.C. SS 1981 and 1983, and 
Title VII of the Civil Rights Act of 1964, 42 U.S.C. SS 
2000e et seq. The class of plaintiffs certified consists 
of (1) all black persons who applied for but were denied 
employment as patrolmen in the New Orleans Police Depart­
ment and (2) all present and past black members of the 
New Orleans Police Department who have been subject to 
discriminatory employment practices. The defendants 
include the City of New Orleans, its Mayor and Superin­
tendent of Police, the New Orleans Civil Service Commis­
sion, and its individual members.

The suit was originally certified as a class 
action by then District Judge Alvin B. Rubin in 1976. On 
August 23, 1978, I found the class lacked adequate
representation by the attorneys then employed and I 
decertified the class. On August 25, 1978, I dismissed 
the action for the plaintiffs’ failure to prosecute, 
but I reopened the case on November 9, 1978 with respect

£ 1331
V̂ Tl OF

. z r s z

io— V H ),



to the individual claims. Nearly two years later, and 
after virtually no further activity in the case, new 
attorneys sought to represent the plaintiffs, and on July 
30, 1980, I ordered that the class be recertified. Since 
then the case has proceeded slowly, though steadily, and 
was scheduled for trial on October 13, 1981. Shortly
before the trial date, the litigants reached a tentative 
settlement and the trial was continued to permit them to 
prepare a proposed consent decree which they submitted 
on October 23.

No promotions have taken place in the New 
Orleans Police Department since January 12, 1981 when the 
parties entered into a stipulation in which the City and 
the Civil Service Commission agreed not to fill vacancies 
in the ranks of sergeant or lieutenant from the list of 
those qualified on the Civil Service register until 
determination of the merits of a motion for preliminary 
injunction brought by plaintiffs. On January 19, 1981, 
Martin Venezia and thirteen other officers, who had been 
placed high on the promotion list by virtue of their 
examination scores and accumulated seniority, moved to 
intervene under Rule 24(a), Fed. R. Civ. Pro. on grounds 
that the January 12 stipulation denied them “their 
opportunity and potential for promotion based upon their 
respective standing" on the list from which new ser­
geant positions ordinarily would have been filled, and 
that the defendants failed adequately to represent their 
interests. In the alternative, they sought permission to 
intervene pursuant to Rule 24(b) Fed. R. Civ. Pro.

I referred the motion to intervene to United 
States Magistrate Kenneth C. Hughes, who first denied the

- 2-



motions because "the interests of those seeking inter­
vention are adequately protected by the present de­
fendants.* I remanded the motions to the magistrate to 
make specific findings of fact and following an evi­
dentiary hearing, he granted the white officers’ motion 
to intervene as of right. The plaintiffs made a timely 
motion for review of the magistrate's order, and on May 6 
I reversed the magistrate on grounds that his finding 
that the white officers possessed an interest protectable 
under Rule 24(a) was clearly erroneous and contrary to 
law. X also denied the motion for permissive inter­
vention.

Movants appealed the denial of intervention to 
the Fifth Circuit and sought a stay to prevent me from 
approving any consent decree or proceeding with a trial 
on the merits. The Fifth Circuit granted the stay but 
ordered the appellants to seek the same order of stay in 
the district court.

On the day trial was scheduled to begin, Horace 
Perez and three other Hispanic-American police officers 
on behalf of themselves and all Hispanic-Americans in the 
New Orleans Police Department moved to be joined as 
defendants pursuant to Rule 19, Fed. R. Civ. Pro. 
Similarly, on November 2, 1981, Larry Lombas, a white
police officer, moved for joinder under the same rule on 
behalf of himself and more than six hundred other 
police officers who had signed a petition objecting to 
the proposed consent decree. A week later, Cindy Duke 
and two other of female police officers, acting on behalf 
of themselves and all female police officers, moved for 

in the alternative, intervention eitherjoinder or,
-3-



permissively or as of right.
For the convenience of the parties, I heard all

of the motions on November 16, 1981.

I. Motions for Intervention of Joinder

A. Intervention under Rule 24(a), F. R.
Civ. P.

All of the movants contend that their par­
ticular interests are not represented by either the 
plaintiffs or the Civil Service Commission. They claim 
that their intervention or joinder is necessary in order 
to prevent the present parties from compromising their 
interests in bringing this litigation to its conclusion.

Rule 19, Fed. R. Civ. Pro. provides, in. per­
tinent part:

(a) A person who is subject to service of 
process and whose joinder will not deprive the 
court of jurisdiction over the subject matter 
of the action shall be joined as a party m  the 
action if . . . (2) he claims an interest 
relating to the subject of the action and is so 
situated that the disposition of the action in 
his absence may (i) as a practical matter 
impair or impede his ability to protect that 
interest .
The motions for Rule 19 joinder are novel in 

that ordinarily either the court or a present party to 
an action moves to have an absent party joined. The 
movants cite no case in which an absent party itself 
made the motion for joinder. In what is apparently the 
only published case expressly dealing with this issue, 
it was held that a nonparty lacks standing to make a 
motion for joinder. Parker-Hannifin Corp.. v. Moore & 
Co. , 436 F. Supp. -498 (N.D. Ohio 1977). To allow non-
parties to make Rule 19 motions would permit them to

-4-



intervene without passing through the strict requirements 
of Rule 24(a). This result could not have been the 
intention of the drafters of present Rule 19 who saw Rule
24(a) as providing:

a kind of counterpart to Rule 19(a) (2) (i) on 
ioinder of persons needed for a just aapudi 
cation: where, upon motion of a party in an
action,* an’absentee should be joined so that he may protect his interest which as a practicalmatter may be substantiaily impaired by the
disposition of the action, he ought to nave fight to intervene in the action on his own 
motion. (emphasis supplied).

Advisory Committee's Note tb the 1966 amendment to Rule

24(a).
With the consent of movants, Larry Lorabas and

Horace Perez et al., I treated the motions for joinder as 
properly motions for intervention under Rule 24(a) or 
Rule 24(b). The women officers had properly moved in 
the alternative to intervene pursuant to Rule 24(a) or

Rule 24(b).
Intervention as of right under Rule 24(a)

requires movants to show that (1) they have an interest
in the subject matter of the litigation; (2) that in­
terest may be impaired by the course of the litigation;
(3) their interests are not adequately represented by the 
existing parties to the litigation, and (4) their motions 
are timely. Stallworth v. Monsanto Co., 558 F.2d 257 
(5th Cir. 1977); United States v. United States Steel_
Coro., 548 F .2d 1232 (5th Cir. 1977).

Not every interest is protectable under 
Rule 24(a). Without being more specific, the Supreme 
Court has required it to be a -significantly protectable- 
interest. nonaldson v. United States., 400 U.S. 517, 
91 S. Ct. 534 ( 1 971 ). The Fifth Circuit, in turn,
has required the interest to be -direct, substantial,

-5-



[and] legally protectable.* Cnited States v. Perry County 
Bd. of Ed., 567 F.2d 277, 279 (1978). In Stallworth v.
Monsanto Co., 558 F.2d 257 (1977), the Fifth Circuit held 
that in the context of employment discrimination suits, 
contractual rights of employees are a protectable in­
terest under Rule 24(a), but any employment interest 
short of a contractual right would not qualify for 
protection. In Cohn v. EEOC, 569 F.2d 909, 911 (5th Cir. 
1978), the Court of Appeals found that even though the 
award of constructive service to a white lawyer in an 
EEOC office would lessen the promotional chances of the 
other lawyers in that office, they would have no right of 
intervention since the mere possibility of advancement 
does not constitute a 'sufficiently protectable interest.* 

Lombas argues that the proposed consent decree 
would have a significant impact on the promotional 
opportunities of himself and many of the rank and file of 
the New Orleans Police Department by granting specific 
preferences to black police officers and drastically 
modifying the importance of seniority in the promotion 
scheme. It is to protect this interest that he moves for 
intervention. But the Fifth Circuit has specifically 
held that seniority rights do not constitute a pro­
tectable interest unless embodied in a contractual 
arrangement. Stallworth v. Monsanto, 558 F.2d 257 (5th 
Cir. 1977). Lombas makes no claim that his opportunities 
for promotion are guaranteed by contract or as a statu­
tory entitlement. In fact, under Louisiana law the 
awarding of promotions in the New Orleans Police Depart­
ment falls within the discretionary authority of the 
Civil Service Commission. Rodriguez v. City Civil

-6-



AtCommission, 337 So. 2d 308 (La. App. 1976). 
best, Lombas has the same subjective expectations of 
promotion as did the lawyers in Cohn or the factory 
workers in Stallworth*

The Hispanic-Americans argue that they have 
a protectable interest in promotion and employment 
conditions because they are a distinct minority group 
under Title VII. Hispanic-Americans, however, as a group 
have done very well in the New Orleans Police Department 
and, in fact, at many levels of service hold a larger 
percentage of positions than they represent in the 
general population of the City of New Orleans.* Moreover 
the aispanic-American applicants make no claim of dis­
crimination. Consequently, I find that they do not 
possess any interests distinct from those claimed by 
officer Lombas.

The female officers, on the other hand, main­
tain that as women they are members of a group that has 
suffered substantial discrimination in opportunities for 
employment or advancement within the New Orleans Police 
Department. Unlike the aispanic-Americans, women are 
underrepresented in the Department as compared to their 
numbers in the general population. Women indeed occupy 
a position in the Department significantly different 
from that of the Hispanic-Americans or of the other 
white male police officers. But, whatever special

* An undisputed analysis submitted by the plain­
tiffs reveals that as of 1980 Hispanic-Americans occupied 
3 5% of the police sergeant positions, 12% of the police 
captain editions, and 16.7% of the police ma3or posi­
tions Hispanics constitute 3.4% of the gene-a_ popu 
lation of the City of New Orleans. 1 980 Census Popu- 
lation/Housing Advance Report, Louisiana, Final Popu- 
lation/Housing Counts PHC 80-V-20.

-7-



status that position gives the female officers, it does 
not endow them with interests that rise to the level of 
contractual rights "sufficiently protectable . . .  to 
warrant intervention of right.'" Cohn v._EEOC, 569 F.2d
909, 911 (5th Cir. 1978).

The proposed consent decree could indeed 
drastically change the current hiring and promotional 
policies of the New Orleans Police -Department. Neverthe­
less, even if the applicants possessed protectable 
interests for purposes of Rule 24(a)(2), the movants 
still may not intervene if their interests are adequately 
represented by the existing parties in this case. 
Applicants for intervention bear the burden of demon­
strating inadequate representation by existing parties, 
Afro American Patrolmens League v. Duck, 503 F.2d 294 
(6th Cir. 1974). However, the burden "should be treated 
as minimal." Trbovitch v. Dnited Mine Workers, 404 O.S. 
528, 538 n.10, 92 S. Ct. 630, 636 n. 10 (1972). Movant 
Lombas argues that the Civil Service Commission, by 
agreeing to a proposed consent decree that grants certain 
preferences, to black police officers, has demonstrated 
that it does not represent the interests of the Police 
Department's rank and file but rather those of the 
present administration of the city's municipal govern­
ment. Mere disagreement with the tactical posture of a 
representative body in litigating a class action, how— 
ever, does not give rise to a right of intervention. 
Pate v. Dade County School Board, 588 F.2d 501 (5th Cir. 
1 9 7 9); united States v. Perry County Board of Education, 
567 F .2d 277 (5th Cir. 1978). There is nothing unusual 
or suspicious on its face about the defendants will

- 8-



ingness to conclude a voluntary settlement of this 
litigation. Title VII encourages such arrangements as a 
matter of positive policy. Pnited States v. City of 
Miami, 614 F.2d 1322 (5th Cir. 1980); Cotton v. Hinton,
559 F.2d 1326 (5th Cir. 1977).

Furthermore, both Lombas and the Civil Service
Commission have the ultimate objective of maintaining, as 
much as possible, the integrity of the merit system in 
promotions. During oral argument, counsel for the Civil 
Service Commission reiterated the Commission's position 
that its promotion practices and, in particular, the 
required written examinations are fair and nondiscrim- 
inatory. Identity of ultimate objectives between two 
parties gives rise to a presumption of adequate repre­
sentation. Ordnance Container Corp. v._Sperry Rand
Corp., 478 F .2d 844 (5th Cir. 1973). In the absence of 
any specific claim cf bad faith on the part of the 
defendants, officer Lombas has failed to bear his burden 
of showing inadequate representation of his interests.

The Hispanic—American movants similarly fail to 
offer any evidence or specific rationale in support of 
their allegations of inadequate representation by the 
defendants. Their position in this litigation is indis­
tinguishable from that of officer Lombas, and accordingly 
I find that the Civil Service Commission is also an
adequate representative of their interests.

The female officers, however, assert claims 
distinct from either officer Lombas or the Hispanic-Amer- 
icans, and their objectives are at odds with those of 
the Civil Service Commission. Conceivably, a consent 
decree that is fair, adequate, and reasonable with

-9-



respect to the present parties may not be fair, adequate, 
and reasonable with respect to the female officers. 
Moreover, the female movants allege that there is evi­
dence to demonstrate that the Civil Service Commission 
has traditionally been indifferent and even hostile to 
the interests of the female members of the Department. 
Nevertheless, even if the defendants are not adequate 
representatives of the female police officers' interests, 
the women fail to satisfy the -interest" criterion 
of Stallworth v. Monsanto Co._, 558 F.2d 257 (5th Cir.
1 9 7 7), and have no right to intervene under Rule 24(a). 
See international Tank Terminals Ltd, v. M/V Acadia 
Forest, 579 F.2d 964 (5th Cir. 1978) (motion to intervene 
as of right must meet all of the four criteria of Rule
24(a)).

B. Intervention under Rule 24(b), Fed. R. 
Civ. Pro.

In the alternative, the female police officers 
moved to intervene pursuant to Rule 24(b), Fed. R. Civ. 
Pro. In addition, I treated the motions by officer 
Lombas and the Hispanic-Americans for joinder under Rule 
19, Fed. R. Civ. Pro. as properly motions to intervene 
under Rule 24(b), Fed. R. Civ. Pro., in the alternative
to intervention as of right.

In pertinent part, Rule 24(b) provides:
Uoon timely application anyone may be permitted 
to intervene in an action: . . .  when an
apdicant's claim or defense and the main 
action have a question of law or fact in common 

. In exercising its discretion the court 
shall consider whether the intervention will 
unduly delay or prejudice the adjudication or 
the rights of the original parties.
Intervention under Rule 24(b) is discretionary.

Stallworth v. Monsanto, 558 F.2d 257 (5th Cir. 1977);
-10-



7a Wright 6 Miller S 1313 (1972); 33 Moore's Federal
Practice 1 24.10 [4] (I960).

While the consent decree cannot conclusively 
determine the rights of nonparties to the litigation, its 
effect may substantially alter the conditions of con­
tinued employment for the movants and all members of the 
New Orleans Police Department. Ordinarily, as non- 
parties, in order to attack the settlement decree, the 
movants must intervene in the original lawsuit. Prate v^ 
Freedman, 430 F. Supp. 1373 (W.D.N.Y.), a f f 573 F.2d 
1294 (2d Cir. 1977), cert, denied, 436 O.S. 922, 98 S. 
Ct. 2274 (1978); McAleer v. American Telephone & Tele^
qraPh Co., 416 F. Supp. 435 (D.D.C. 1976); Construction
Industry Combined Committee v . International Union .of 
n^rai-ina Engineers, 67 F.R.D. 664 (E.D. Mo. 1975). If 
the interests of the movants were my only concern, I 
would allow them to intervene permissively, but I must 
also consider whether "the intervention will unduly 
delay or prejudice the adjudication of the rights of the
original parties." Fed. R. Civ. Pro. 24(b).

This case is nearly nine years old and at least 
those officers affected by it have known of its existence 
since its inception; discovery has finally been com­
pleted. To allow the movants who have sat idly Dy and 
never prior to this time sought to assert an interest to 
intervene now, would inevitably delay the conclusion 
of this lawsuit. Not only have the present parties 
waited long enough, but until the issue of liability is 
resolved, no promotions may be made under the terms of 
the stipulation between the parties. Moreover, permitting 
the movants to enter as fully party interveners would



render uncertain the status of the proposed consent 
decree and, in the event I decide to withhold my ap­
proval, could complicate subsequent negotiations among 
the parties regarding modifications of the proposed 
decree. In addition, full party status seems out of 
oroportion to the movants' legitimate needs. Except for 
the female police officers, the movants are not asserting 
any independent claims of discrimination; they merely 
seek the opportunity to convince me or an appellate court 
that the consent decree is not fair, adequate, and 
reasonable with respect to their interests. Even the 
female police officers have a greater interest in ob­
jecting to certain specific provisions of the proposed 
consent decree than in assuming a full-scale role in 
bringing this lawsuit to a comprehensive conclusion.

The discretion and flexibility of Rule 24(b) 
permit me to fashion a remedy short of full interven­
tion. The rule allows the movants to intervene, but with 
restrictive conditions on the scope of that intervention. 
Conditional permissive intervention has enjoyed both
general approval, Ionian Shipping Co. v. British_Law
Insurance Co., 426 F.2d 186 (2d Cir. 1970), and accep­
tance in the specific context of individual and class 
action Title VII suits. Van Hoomissen v. Xerox Corp., 
497 F . 2d 180, 181 (9th Cir. 1 974 ) (*[t]he district
court's discretion, at least under Rule 24(b), to grant 
or deny an application for permissive intervention 
includes discretion to limit intervention to particular 
issues."); Mack v. General Electric, 63 F.R.D. 368 
(E. D. ?a. 1974). Especially in public lawsuits, leaning 
authorities in procedure have recommended limited inter-

- 12-



vention as a useful method of accommodating conflicting 
interests. Shapiro, Some Thoughts on Intervention 
Before Courts. Agencies and Arbitrators, 81 Harv. L. Rev. 
721 (1968). See 7A Wright & Miller, Federal Practice and 
Procedure S 1922 (1972); 3B Moore’s Federal Practice 1
24.10 [4] (1980). In Moore v. Tangipahoa Parish, 298 F.
Supp. 288 (E. D. La. 1969), for example, a number of
white parents attempted to intervene in a school de­
segregation suit on grounds that the parish school board 
had failed adequately to protect the interests of the 
white parents and students. Then District Judge Rubin 
found to the contrary and denied the parents’ motion to 
intervene as of right, but some of the parents were 
permitted to interevene to represent all whites for the 
sole purpose of offering suggestions and objections to 
the proposed plan of desegregation.

In similar fashion, movants in this case are 
permitted to intervene for the limited purpose of 
commenting on whether the proposed consent decree 
is fair, adequate, and reasonable with respect to their 
interests. The intervenors will have the right to put 
their objections into the record and to introduce evi­
dence as to why the consent decree should be rejected. 
Concommitant with this limited intervention, in the event 
the decree is approved, the movants may appeal that 
approval if it fails to be fair, adequate, and reasonable
with respect to their interest.

3ecause many police officers share the concerns 
of the movants, I will permit anv member of the New 
Orleans Police Department to object to the terms of the 
consent decree provided his objection is filed into the

-13-



record prior to February 1, 1982. The objection must be 
in writing and filed with the Clerk. It may be hand­
written. It must contain the full name, address and rank 
of the officer objecting and a brief statement setting 
forth the nature of the objection and any physical 
evidence in support of it. If the officer desires to be 
heard, the objection must so state; however, the filing 
of an objection shall create no right to be heard and 
cumulative objections will not be heard. After February 
1, 1982, I will regard any objection as untimely.

In the event that I reject the proposed consent 
decree, all interested parties will be free to reurge 
their former motions or bring new ones in the light of 
changed circumstances.

II. Motion for Stay

The Venezia movants seek to stay any condi­
tional or final approval of the proposed consent decree 
or the trial on the merits of the lawsuit until such time 
as the Court of Appeals rules on the merits of their 
appeal of my denial of their January 19, 1981 motion to 
intervene. The Fifth Circuit, on October 19, 1981,
ordered a stay on exactly these terms but required the 
movants to seek the same relief here.

Few cases have dealt with the specific stan­
dards appropriate in granting a stay of trial proceedings 
pending the appeal of a collateral order. However, the 
standards are well established with respect to granting 
motions made pursuant to Rule 62(c), Fed. R. Civ. Pro., 
which provides, in pertinent part:

-14-



[wlhen an appeal is taken from an interlocutory 
or final judgment granting, dissolving, or 
denying an injunction, the court in its dis cretion may suspend, modify, restore, or gran 
an injunction during the pendency of tne appeal 
upon such terms as to bond or otherwise as it 
considers proper for the security of the 
adverse party.

Courts have generally noted four factors as significant 
in deciding whether to grant a motion under Rule 62(c): 
(1) whether the movant demonstrates a strong likelihood 
of prevailing on the merits of his appeal; (2) the 
irreparable harm he would suffer if his motion is 
denied, (3) the possibility of substantial harm to the 
other litigants if the motion is granted; and (4) the 
general public interest in granting or denying the 
motion. Battle v. Anderson, 564 F.2d 388 (8th Cir. 
,977); Pitcher v. Laird, 415 F.2d 743 (5th Cir. 1969); 
Belcher v. Birmingham Trust National Bank, 395 F.2d 685 
(5th Cir. 1968). Although my denial of the Venezia 
motion to intervene does not involve -granting, dis­
solving, or denying an injunction," the criteria de­
veloped in deciding Rule 62(c) motions appear general 
enouah to provide guidance to my discretion.

The Venezia movants had placed high on a list 
from which new sergeant positions would normally be 
filled. However, the defendants have agreed not to fill 
any vacancies existing or occurring in these positions. 
Venezia and the other thirteen white officers moved to 
intervene in order to protect their interests in their 
position on the sergeant's list, but there is no vested 
right in being promoted under Louisiana law. Under the 
Civil Service Commission's Rule .03, promotions need not 
necessarily be made in the order that officers place on



sergeant's list. The Department head has the discretion 
to choose among the three top individuals on the list in 
filling a new sergeant's position. If an individual is 
passed over several times his name may be removed from 
the list altogether. The Venezia movants, therefore, 
have the same insubstantial interests in promotion that I 
found insufficient to warrant intervention as of right by 
officer Lombas, the Hispanic-American officers, and the 
female officers. I find, therefore, that there is little 
likelihood that the Venezia movants will prevail on their 
appeal of my denial of their motion to intervene under 
Rule 24(a), Fed. R. Civ. Pro. I had also denied the 
Venezia movants permission to intervene under Rule 24(b),
Fed. R. Civ. Pro. My refusal to allow them to inter­
vene permissively may only be reversed upon a showing of 
abuse of discretion. Korioth v. Briscoe, 523 F.2d 1271 
(5th Cir. 1»75). At the time I denied the movants' 
motion under Rule 24(b), trial was rapidly approaching 
and the addition of fourteen new parties would have 
immeasurably compounded the difficulties of the present 
parties in preparing for and meeting the trial date. I 
believe that I correctly acted in accordance with the 
requirement of Rule 24(b) that I consider "whether 
intervention will unduly delay or prejudice the ad­
judication of the rights of the original parties."

By denying the Venezia movants' motion for a 
stay, I do not deprive them of effective means for 
protecting their interests. I would allow them to make 
a limited intervention on the same conditions I imposed j
on the intervention of the other movants. Venezia

-1  6 -

i
i

i



and the other officers are free at any time to petition 
the Fifth Circuit to have their appeal remanded so that 
they may seek limited intervention. As a limited inter­
i o r ,  the movants would have ample opportunity to offer 
evidence of the ways the proposed consent decree impairs 
their rights. In the event that I reject the proposed 
consent decree, Venezia and the other thirteen officers 
are free to reurge their motion for intervention in light 
of changed circumstances. Accordingly,

XT IS ORDERED that the motion of Cindy Duke et 
al. for joinder under Rule 19, Fed. R. Civ. Pro. is
DENIED.

IT IS FURTHER ORDERED that the motion of Cindy 
Duke et al. for intervention under Rule 24(a), Fed. R. 
Civ. Pro. and the motions of Larry Lombas and Horace 
Perez et al. for joinder under Rule 19, Fed. R. Civ. Pro. 
considered as properly motions for intervention under 
Rule 24(a), Fed. R. Civ. Pro. are DENIED.

XT IS FURTHER ORDERED that the motion of Cindy 
Duke et al. for intervention under Rule 24(b), Fed. R. 
Civ. Pro. and the motions of Larry Lombas and Horace 
Perez et al. for joinder under Rule 19, Fed. R. Civ. Pro. 
considered as properly motions for intervention under 
Rule 24(b), Fed. R. Civ. Pro. are GRANTED subject to the
following conditions:

Movants shall have the right to object to 
approval of the proposed consent decree, 
submitted to the court on October 23, 1981, to 
present evidence in support of these objec­
tions, or to appeal the approval of any ap­
proved consent decree. Their grounas for 
objection shall be limited to the fairness, 
adequacy, or reasonableness of the consent 
decree with respect to their interests.
To the extent that the movants move for a

-17-



broader intervention or role in this case, their motions

are DENIED.
IT IS FURTHER ORDERED that the motion by 

Martin Venezia et al. for a stay is DENIED.

UNITED STATES DISTRICT JUDGE

-18-



APPENDIX B
Fifth Circuit per curiam opinion dated 

January 18, 1982



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

NO. 81-3305

LARRY WILLIAMS, ET AL.,
Plaintiffs-Appellees,

versus
THE CITY OF NEW ORLEANS, ETC.

Defendants
versus

POLICE OFFICERS MARTIN VENEZIA, ET AL.,
Movants-Appellants.

Appeal from the United States District Court 
for the Eastern District of Louisiana

C JANUARY 18, 1982 )
Before CLARK, Chief Judge, TATE and SAM D. JOHNSON, Circuit Judges.
PER CURIAM:

The district court offered to grant appellants a limited right of 
intervention. We interpret this offer: (1) as still open to appel­
lants, (2) as sufficient to afford them a reasonable opportunity to be 
heard by the court on their objections to approval of the proposed 
settlement agreement prior to the court's consideration of approval 
thereof and (3) to permit objections which would include the grounds 
of objection raised in this court, including the Constitutions of the 
United States and the State of Louisiana, Louisiana civil law, civil 
service rules, regulations and practices, and City of I.ew Orleans 
Police Department promotion policies and practices. We further 
understand that appellants will be accorded the status of a party to 
the litigation should they desire to appeal the final action taken by 
the district court on the settlement agreement. We do not under­
stand the offer to accord appellants any rights to discovery, or 
to make proof except pursuant to the grounds of objection listed above.



Since the limited intervention offered would accord sufficient pro­
tection to the interest asserted by appellants in the subject of the 
action, we vacate the stay order entered on the 19th day of October, 
1981, deny appellants' motion for summary reversal of the district 
court’s order denying appellants leave to intervene, and remand this 
cause to the United States District Court for the Eastern District of 
Louisiana for further proceedings not inconsistent with this order.



APPENDIX C
enteredOrder of district court, 

July 12, 1984



MINUTE ENTRY
SEAR, J.
JULY 6, 1984

U

filed
_ DISTRICT court 

TERN DISTRICT OF LA.

J a i l  IIi»AH'84
UNITED STATES DISTRICT COURt LORETTAG.WHYTECLEKI\
EASTERN DISTRICT OF LOUISIANA

LARRY WILLIAMS, ET AL. 
VERSUS
THE CITY OF NEW ORLEANS, LOUISIANA, A Municipal Corporation, ET AL.

* CIVIL ACTION
* NO. 73-629
*

SECTION "G"
*

Horace Perez, et al., on behalf of himself and all other 
Hispanic police officers; Cindy Duke, et al., on behalf of her­
self and all other female police officers; and Martin Venezia, et 
al., and Larry Lombas, et al. , on behalf of themselves and all 
whito police officers have filed a motion to intervene xn this 
matter.

By Minute Entry dated December 9, 1981, I granted lim­
ited intervention to movants herein. Movants have advanced no 
reason to alter my earlier decision. I remain convinced that the 
best-interest of justice is served if movants continue as limited 
intervenors under the terms established in my earlier minute 
entry.

/'
Accordingly, the motion to intervene is DENIED.

^MOREY L. SEAR UNITED STATES DISTRICT JUDGE

04 Tc g? Err.?/ J W M  mrTV



APPENDIX D

Excerpt of brief in
Williams v. City of New Orleans, No. 81-3305



ARGUMENT

I.

The District Court Correctly Held That The Applicants For Intervention Do Not Satisfy 
The Requirements For Intervention Of Right Under Rule 24(a)(2) Of The Federal Rules 

Of Civil Procedure.
Rule 24(a)(2) of the Federal Rules of Civil Procedure

entitles an individual to intervene as of right:
"... [1] when [he] claims an interest relating tothe property or transaction which is the subject of 
the action and [2] he is so situated that the disposi­
tion of the action may as a practical matter impair 
or impede his ability to protect that interest [3] unless [his] interest is adequately represented by 
existing parties.

The district court was eminently correct in holding that the 
fourteen white police officers failed to satisfy these re­
quirements .

A. Movants Lack the Legally Protectible Interest Necessary 
To Intervene As Of Right.

Rule 24(a)(2)[1] limits intervention of right to indi­
viduals who possess a "significantly protectible interest in 
the subject matter of the lawsuit," that is "of sufficient
magnitude __ to conclude that [the applicant] is to be allowed
to intervene." Donaldson v. United States, 4C0 U.S. 517, 531 
(1971). As this Court of Appeals stated in Diaz v. Southern 
Drilling Corp., 427 F.2d 1118, 1124 (5th Cir. 1970), intervention 
of right under Rule 24(a)(2) "requires a ’direct, substantial, 
legally protectible interest in the proceeding.'" (citation



omitted.) Appellants'can cite to no statute or contract which 
establishes they have a legally protectible interest. As such, they 
fail to comply with the requirements for intervention of right.

Appellants concede that whatever their ranking on the 
promotional list for sergeant in the New Orleans Police Depart­
ment, they do not enjoy vested rights to promotions, but rather 
only "expectations". (Original Brief for Appellants, p. 12) 
Specifically, subject to the statutory requirement that a 
promotional list last a minimum of six months and a maximum of 
three years, the effective use or maintenance of the list is 
entirely at the discretion of the Director of the Civil Service 
Commission. Rodriguez v. City Civil Serv. Com, for Par, of 
N.O., supra. Accordingly, after a list has been in effect for 
six months, the Director is free to suspend or alter the list, 
or give a new test to supercede it. .Id. at 310. There is no 
dispute that the promotional list on which appellants' names 
appear has been in existence greater than six months and, as 
such, affords the white police officers absolutely no rights to 
promotions. (See, e.g., Rec. Vol. X, 81—82). Additionally, in 
making a promotion, the appointing authority is empowered to 
select one person from among the top three names on a promotional 
list. (Rec. Vol. X, pp 178-179). The top name on the list is 
not guaranteed the next promotion. (^d.) If a name is passed 
over three times, Civil Service may request that it be deleted

12



from the promotional registry. (Rec. Vol. X, p. 184). Thus, 
even if the Director chooses to continue the list, no one on 
that list has a right to a promotion. Under these circumstances, 
the white police officers cannot intervene as of right. Cf. 
United States v. City of Miami, Fla., 614 F.2d 1322, 1341 (5th 
Cir. 1980).

Nor can the white police officers cite to a contract with
either the New Orleans Police Department or the Civil Service
Commission which legally protects or addresses their promotional
interests. The Court of Appeals for this Circuit made clear
in Stallworth v. Monsanto, supra, 558 F.2d at 268-69, that,
apart from statutorily protected interests, the lack of a
contractual relationship is fatal to the "significantly pro—
tectible interest" test set forth in Donaldson v. United
States, supra. In Stallworth, white employees of the company
attempted to intervene in a Title VII challenge by black
employees to the Company’s seniority system. In addressing
the question of intervention in the context of an employment
discrimination case, the Fifth Circuit emphasized that the lack
of a contractual relationship between the applicants for
intervention and the company was dispositive of the question of
whether they could intervene of right.

The appellants contend that the consent decree unnecessarily interferes with their 
contractual relationships with Monsanto.
The record contains no finding concerning 
the existence of a contract . . . .  If

13



the District Court finds that a contractual 
relationship exists between the appellants 
and Monsanto, then the interest requirement 
of section (a)(2) is satisfied . . . .  On the other hand, should the District Court 
determine that no contract exists between the 
appellants and Monsanto, their interest in 
the case would not meet the challenge posed 
by Donaldson, and they would not be entitled to intervene as of right. 558 F.2d at 268-269.

Accord, Piedmont Heights Civic Club v. Moreland, 83 F.R.D.
153, 157 (N.D. Ga. 1979). In this case, appellants have stipulated 
that there is no collective bargaining agreement or other con­
tract which even addresses the issue of promotions, let alone 
affords these white police officers a legally protectible 
right to be promoted. (Rec. Vol X, p. 141).

The cases cited by appellants at pages thirteen through 
sixteen of their brief fail to support their claim. Unlike 
the facts in this case, the intervenors in Trbovich v. United 
Mine Workers, 404 U.S. 528 (1972) and those in Adams v. Matthews, 
536 F.2d 417 (D.C. Cir. 1976) asserted statutorily protected 
interests. (Right to a legally valid union election and right 
to speedy enforcement of anti—discrimination law by federal 
agency, respectively.) Similarly, intervenors in other cases 
cited claimed interest in or protection under statutory schemes 
which were the subject matter of the lawsuit. See National 
Farm Lines v. I.C.C., 564 F.2d 381 (10th Cir. 1977)(I.C.C. 
Regulations); New York Public Interest Research Group v. Regents 
of the University of the State of New York, 516 F.2d

14



350 (2d Cir. 1975)(regulation prohibiting advertisement of 
prescription drug prices). Unlike here, the union in E.E.O.C. 
v. American Tel, and Tel. Co., 506 F.2d 735 (3rd Cir. 1974) 
had a collective bargaining agreement which covered some of 
the issues embodied in the consent decree and had previously 
filed a charge against the company.

None of the other cases cited by appellants are decisions
by this Court of Appeals and many were decided prior to Donaldson

2/
v. United States, supra, and Stallworth v. Monsanto, supra.
This Court has previously had occasion to consider rulings by
other courts of appeal which appear to relax the requirement
of Rule 24(a) that intervenors have a legally protectible
interest; and has reaffirmed that while the inquiry under Rule
24(a) is flexible,

[W] e have adopted a somewhat narrow reading of the term "interest," which 
is the approach contemplated by Pro­
fessor Kaplan, the draftsman of the 
1966 amendment. See Kaplan, Conti­
nuing work of the Civil Committee:1966 Amendments of the Federal Rules 
of Civil Procedure (I), 81 Harv. L.
Rev. 356, 405 (1967). As we said in 
Diaz v. Southern Drilling Corp., 427 
F.2d at 1124, "intervention still re­quires a direct, substantial, legally 
protectible interest in the proceedings.

United States v. Perry Ctv. Bd. of Ed., 567 F.2d 277, 279 (5th
Cir. 1978); accord, Piedmont Heights Civic Club v. Moreland,
supra.

2/ One case cited by appellants, Atlantic Refining Co. v. Standard Oil Co., 304 F.2d 387 (D.C.Cir. 1962) was decided 
prior to the amendment to Rule 24(a)(2) in 1966.

15



Thus, to the extent that the court in Nuesse v. Camp, 385
F.2d 694, 700 (D.C. Cir. 1967) or other circuit courts have
opted for a "loose definition" of interest under Rule 24(a)(2),
this Court has correctly declined to relax the requirements of
intervention of right to such an extent. As the author of the
amendment stated, the changed wording of Rule 24(a)(2) in 1966
was intended "to drive beyond the narrow notion of an interest
in property" or the requirement that the intervenor be bound,
as a matter of strict res judicata, by the judgment. The
amendment was not intended to dilute the requirement to the
extent of allowing any "concerned" person to intervene of
right. Compare Kaplan, Continuing Work of the Civil Committee:
1966 Amendments of the Federal Rules of Civil Procedure (I),
81 Harv. L. Rev. 356, 401, 404-405 (1967) with the standard in
Nuesse v. Camp, 385 F.2d at 700 to "involv[e] as many apparently
concerned persons as is compatible with efficiency and due 3/
process." Appellants have not even suggested that the 
standard of this Court is incorrect, but have simply chosen to 
ignore it. The reason is apparent: appellant have not and 
cannot show that they have a "legally protectible interest" in 
the proceedings.

3/ Plaintiffs also respectfully suggest that this Circuit's standard more closely follows the requirement of the Supreme 
Court in Donaldson v. United States, supra, 400 U.S. at 531 
that Rule 24(a)(2) requires a "significantly protectible interest." (Emphasis added).

16



B. Appellants Are Not Entitled To Intervene Because The Interests 
They Seek To Represent Are Not Cognizable Under Rule 24(a)(2).

Not only do appellants fail to cite to an interest of 
sufficient magnitude to warrant intervention of right; they do 
not allege facts which demonstrate they have been or will be 
injured in a legally cognizable manner. Accordingly, they 
cannot intervene in this action.

This Court stated, in affirming the denial of interven­
tion in an employment discrimination case,

[W]e feel that the requirements of Rule 
24 are not met. The interest that must 
be impaired or impeded under the Rule is the substantive one created by Title 
VII of the 1964 Civil Rights Act.

United States v. City of Jackson, Mississippi, 519 F.2d 1147,
1153 (5th Cir. 1975); accord, Rios v. Enterprise Ass'n Steam-
fitters Local Union #638 of U.A., 520 F.2d 352 (2d Cir. 1975).
The only interest which appellants claim will be injured is their
desire to be promoted sooner than they might have been absent
the lawsuit. Appellants describe their interest in this case
as the "interests in maintaining the current promotional list"
and "their promotional expectation." (Original Brief of Appellants

4/at p. 16 and p. 22). As established above, point IA, supra, 
Appellants have no vested right to be promoted. So, too, 
appellants have no right to maintenance of a promotional system 
which violates Title VII. Indeed, as this Court stated

4/ At most, only four of the fourteen police officers can even claim the possiblity of having been promoted were it not 
for the fact that a Court-approved stipulation was entered in this case. (Rec. Vol. X pp. 131-182).

17



614 F.2d 1322, 1341,in United States v. City of Miami, Fla.,
"[E]ven expectancies characterized as 'vested rights' under 
state law must fall before a court adjudication that Title VII 
mandates that the expectations not be fulfilled." (Citations 
omitted). Thus, appellants do not claim, for example, that 
they as well as plaintiffs have been victims of discrimination 
by defendants. They seek only to maintain the present system
because it benefits their personal interests. Such an interest,5/
however, is simply not protected by federal law.

Nor can appellants intervene on the grounds that the 
Court cannot, after trial or in the context of approving a consent 
decree, order affirmative relief. The overwhelming weight of 
judicial authority, in this circuit and elsewhere, supports 
changes in promotional systems and the use of numerical ratios, 
goals, and other color-conscious forms of relief in order to 
remedy the effects of racial discrimination in the hiring and

5/ This standard for intervention in a Title VII action is ¥imilar to that for intervention in a school desegregation 
case. Specifically, parents seeking to intervene in a school 
case must demonstrate an interest in a desegregated school 
system. Hines v. Rapides Parish School Board, 479 F.2d 762 
(5rh Cir. 1973). Although there are numerable instances where 
children and parents may be deprived of what they deem to be "rights", such as the right to attend a neighborhood school or 
the right to a school in a particular location, this Court has 
frequently declined to permit those children and parents to 
intervene. E.g., St. Helena Parish School Board v. Hall, 287 
F.2d 376 (5th Cir.), cert, denied, 368 U.S. 830 (1961); United States v. Perry Cty 3d of Ed., supra. Intervention of right ̂ 
in inappropriate in such instances because the "[l]ocation ot 
a school comes within the purview of the federal courts only 
to the extent that it has an impact on desegregation. See 
Tasbv v. Estes, 517 F.2d 96, 106 (5 Cir.), cert, denied, 423 
U.S. 939 (1975)." United States v. Perry Cty Bd. of Ed., 
supra, 567 F.2d at 280.

18



promoting of employees. "[A]t this point in- the history of 
the fight against discrimination, it cannot be seriously argued 
that there is any insurmountable barrier to the use of goals or 
quotas to eradicate the effects of past discrimination ••• To 
the contrary, affirmative relief is required to ensure that the 
effects of past discrimination are negated." United States v. 
City of Miami, Fla., supra, 614 F.2d at 1335-1336, and cases 
cited therein. Race-conscious numerical relief has been upheld 
by the Fifth Circuit and other courts as an appropriate remedy 
for discrimination in promotions as well as in hiring. See 
United States v. City of Miami, supra; EEOC v. Detroit Edison 
Co., 515 F.2d 301, 317 (6th Cir. 1975), aff'd Stamp v. Detroit 
Edison Co., 365 F.Supp. 87, 122-23 (E.D. Mich. 1973), vac, and 
rem. on other grounds, 431 U.S. 951 (1977); EEOC v. A.T.— &__T. 
Co., 556 F.2d 167, 177 (3rd Cir. 1977), cert, denied, 98 S.Ct. 
3146 (1978); United States v. City of Chicago, 573 F.2d 416,
429 (7th Cir. 1978); United States v. City of Chicago, 548 F.2d 
415, 436-37 (7th Cir.), cert, denied, 434 U.S. 875 (1977); 
Watkins v. Scott Paper Co., 530 F.2d 1159, 1194 (5th Cir.
1976); United States v. N.L. Industries, Inc., 479 F.2d 354,
377 (8th Cir. 1973). Clearly the Supreme Court has never 
adopted the proposition that the Constitution must be color 
blind. Regents of the University of California v. Bakke, 438 
U.S. 265, 353-55 n. 28, 366-69 (opinion of Brennan, White, 
Marshall, and Blackmun, JJ.); 438 U.S. at 301-302 and nn.
40-41, 44 (opinion of Powell, J.)(1978).

19



The possibility that this case may be settled through a 
consent decree does not harm appellants in any legally cognizable 
manner. Title VII favors settlements in employment discrimination 
suits because "there is an overriding public interest in favor 
of settlement." Armstrong v. Board of School Directors, City 
of Milwaukee, 616 F.2d 305, 313 (7th Cir. 1980), quoting Cotton 
v, Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977); accord, United 
States v. City of Miami, Fla., supra. Cf. Airline Stewards 
Local 550 v. American Airlines, Inc., 573 F.2d 960, 963 (7th 
Cir. 1978), cert, denied, 439 U.S. 876 (1978). Even though 
appellants may themselves be innocent of any wrongdoing or 
discrimination, "[w]here minorities ... have been under­
represented in the past, non—minority males ... must temporarily 
bear some of the burden [of correcting the inequities]." U.S. 
v. City of Miami, supra, 614 F.2d at 1342.

The cases above establish that appellants have suffered 
and will suffer no injury recognized by Title VII or other 
federal law as a result of any changes in the promotional 
practices of the New Orleans Police Department and the Civil 
Service Commission which are necessary to remedy racial dis­
crimination against the plaintiff class. They therefore have 
no standing to intervene and fail to satisfy the requirements 
of Rule 24.

2 0



C. Appellants' Interests Were Adequately 
Represented By Existing Parties At The Time 
Their Motion to Intervene Was Denied; the 
District Court Has .Now Indicated It Will Grant 
Intervention for Purposes of Contesting the 
Proposed Consent Decree.
Neither appellants' initial motion to intervene, nor the

memorandum filed in support of the motion, asserted or mentioned
tht the representation of their interests by counsel for the5/
City of New Orleans and the Civil Service Commission was 
in any way inadequate. Nor in fact, was there any showing that 
this representation was inadequate and the District Court so 
stated in delivering its reasons in open court for denying 
the motion to intervene.

In their brief on appeal, appellants assert two purported 
reasons why representation of their interests was inadequate. 
Neither merits a finding that appellants were being inadequately 
represented.

First of all, they argue that because the City has to 
represent all police officers, net only those who had expected 
to be promoted to sergeant in the foreseeable future, they fear 
they need their own lawyer to represent their own personal 
interests as strongly as possible. Although in many circum­
stances the fact that the interests of existing parties do not 
precisely coincide with those of movants for intervention is a

5/ These defendants are represented by separate counsel.

21



factor to consider in determining whether representaion is 
adequate, where the position of movants for interention is 
represented by the government, representation is presumed 
adequate unless special circumstances are given. 7A Wright and 
Miller, Federal Practice and Procedure, ST909 at 525-529 
(1972). In a Title VII case against the Philadelphia Fire 
Department, the Court of Appeals in Commonwealth of Phila­
delphia v. Rizzo, stated:

[Notwithstanding the liberalizing 1966 amendment of Rule 24(a), the burden of establishing 
inadequate representation —  though the burden "should be treated as minimal" —  remains on the proposed inter- 
venor. Trbovich v. United Mine Workers, 404 U.S. 528,
538 n.10, 92 S. Ct. 630, 30 L.Ed.2d 686 (1972). Fur­
thermore, a presumption of adequate representation 
generally arises when the representative is a govern­
mental body or officer charged by law with representing 
the interests of the absentee. 7A C. Wright & A.
Miller, Federal Practice and Procedure § 1900 at 528-29 
(1972); see Sam Fox Publishing Co. v. U.S., 366 U.S.
683, 689 (1961)(dictum). All defendants here fit that mold. Where official policies and practices are 
challenged, it seems unlikely that anyone could be 
better situated to defend than the governmental 
department involved and its officers.

503 F.2d 501, 505 (3rd Cir. 1976), cert, denied, 426 U.S.
921 (1977). Sare speculations by appellants, without any
evidence, that the City will make decisions in this case on a
"purely political" basis (Rec. Vol. X, p. 149) and that the City
is looking at this lawsuit as a way to buy votes (Ijd. at 141, 167)
should not be glorified by even the suggestion that these suffice
to establish inadequate representation. The following testi-

2 2



mong is illustrative of the evidence which appellants preferred
to establish inadequate representation:

Q: Officer, do you believe that I [the attorneyfor the City] have been instructed by the Mayor's 
office to throw this case or compromise it or 
settle it against my professional judgment?
A: Yes, sir.
Q: You do believe that?
A: Yes, sir.
Q. Do you have anything to substantiate that?
A: Personal opinion.
Q: That's your personal opinion?
A: Yes, sir.
Q: Outside of that, do you have any interoffice memo
or formal memorandum or any letter or directive or tape 
recording of a telephone call that substantiates your 
personal opinion?
A: No, sir.
(Testimony of Ronald Brady, Rec. Vol. X, at 175-176). 
Appellants also assert tha Mr. Gilbert Buras, counsel 

for the City cannot or will not devote sufficient time to the 
case. The fact that appellants do not like the lawyer the City 
has chosen does not render inadequate the representation of 
appellants by defendants. 7A Wright and Miller, Federal 
Practice and Procedure § 1909 at 531-532; see Stadin v. Union 
Elec. Co., 309 F.2d 912, 919-920 (8th Cir. 1962), cert, denied, 
373 U.S. 915 (1963). Appellants concede that they did not 
even attempt to contact counsel for the City or counsel for the 
Civil Service Commission regarding their feelings about the

2 3



lawsuit. (E.g., Rec. Vol. X at 190). Moreover, appellants 
assert that Mr Buras, counsel for the City, allowed unauthorized 
microfilming of confidential police files, but conveniently 
neglect to inform this Court (1) that this microfilming arose 
from an honest misunderstanding; (2) that as soon as the police 
officers at Internal Affairs Division informed Mr. Buras of what 
was occurring, he responded immediately to his clients' concern 
and secured an agreement to halt further microfilming; and 
(3) that plaintiffs returned all microfilm without developing 
it. (Id. at 219-220).

Contrary to appellants' version of the facts as set forth 
on pages 20-21 of their brief, Mr. Buras testified that he had 
not made any categorical statement that he would lose the 
case. (Id. at 221). Nor did he state that he did not have time 
to appear in Court to file or answer motions (Id.). Rather,
Mr. Buras testified that he stated that in his professional 
judgment certain files were discoverable by plaintiffs and it 
would be foolish to resist reasonable requests for discovery 
(Id. at 221-222). A mere difference of opinion as to how 
litigation should be conducted does not in and of itseif consti­
tute inadequate representation for purposes of Rule 24. Stadin 
v. Union Electric Co., supra, 309 F.2d at 918-919. Nor does 
inadequate representation occur where there is disagreement as 
to how discovery should be conducted. Id. Even if Mr. Buras 
asked for more assistance in this case, such a request hardly

2 4



I

establishes that the failure to receive such assistance ham­
pered his representation of appellants' interests. The District 
Court’s finding in open court after oral argument that repre­
sentation was not inadequate was correct and should be affirmed.

Finally, events subsequent to the filing of this appeal 
bear on the issue of whether appellants' interests were ade­
quately represented at the time of their original motion. 
Specifically, plaintiffs and defendants reached agreement on a 
proposed settlement on the very eve of trial and announced in 
open court on October 13, 1981, the date trial was to begin, 
that such an agreement had been reached. In light of this 
development, the District Court has now indicated that it would 
grant appellants leave to intervene to contest the terms of 
the proposed consent agreement. (Transcript of November .6, 
1981, annexed as Exhibit F). Thus, while liability was in 
issue defendants' continuous position that its policies and 
practices were valid coincided with appellants' interests; now 
that relief is the issue, the situation is different for purposes 
of intervention. See Cohn v. EEOC, 569 F.2d 909, 911-912 (5th
Cir. 1978).

In sum, there was no evidence that appellants' interests 
were being other than adequately represented by defendants.
Now that a tenative consent agreement has been reached, the 
District Court has indicated it will allow intervention.

25



II.

The Application For Intervention Was Untimely And Its Denial Should Be Affirmed.
Whether one seeks intervention of right pursuant to Rule

24(a) or permissive intervention under Rule 24(b), it is established
law that intervention must be sought by the filing of a timely
application. United Airlines, Inc, v. McDonald, 432 U.S. 385
(1977); Stallworth v. Monsanto Co., supra.

As appellants acknowledge, the question of whether a
motion to intervene was filed timely is "largely committed to
the discretion of the trial court, and its determination will
not be overturned unless an abuse of discretion is shown."

6/
Stallworth v. Monsanto, supra, 558 F.2d at 263. A review of 
the facts confirm that appellants' motion was untimely.

This Court in Stallworth listed four factors to consider 
in determining whether an application to intervene is timely.
The first factor set forth is "the length of time during which 
the would be intervenor actually knew or should have known of 
his interest in the case before he petitioned for leave to 
intervene," Stallworth v. Monsanto, supra, 558 F.2d at 264.

6/ Contrary to appellants' assertion, the denial of the motion to intervene necessarily encompassed consideration of the 
timeliness issue. The District Court held in open court that 
appellants had an insufficient interest to qualify for intervention 
of right but it also declined to allow appellants to intervene 
permissively under Rule 24(b) of the Federal Rules of Civil 
Procedure. In reaching that holding, the court below necessarily 
ruled on the timeliness issue.

26



Appellants attempt to make much of the fact that they
filed their motion to intervene fairly shortly after the issuance
of a court-approved stipulation on January 12, 1981 which
halted promotions. They gloss over the fact, however, that
this case was filed in March, 1973 and that the events in the
lawsuit during 1973 as well as the testimony of the appellants
at the hearing below establish that there was no justification

2/for the eight-year delay in filing their motion.
Only three of the fourteen appellants testified at the 

hearing. Their testimony establishes that they knew that the 
lawsuit was directed toward changing the promotional process

8/
and that they had an interest in 1973 in that promotional process.

Specifically, Louis Adams testified that he knew in 1973 
that this lawsuit had been filed and that it affected pro­
motions. (Rec. Vol. X pp. 118-119). Ronald Brady, the second 
appellant who took the witness stand, testified that he had 
heard that there had been a restraining order relating to 
promotions in 1973 and even had a copy of the complaint at 
that time. (Id. at pp. 158-159). Having had a copy of the 
complaint, Mr. Brady definitely knew that plaintiffs speci­
fically requested as relief that the court issue a preliminary

7/ Of course the applicants for intervention have the burden 
of establishing that their application is timely.
8/ All parties at the hearing stipulated that if called to testifv all other would-be-intervenors would testify similarly 
to the’testimony of Marcel David, except as to the issue of 
when they learned about the lawsuit and the nature of the 
lawsuit. (Rec. Vol. X pp 211-212).

2 7



and permanent injunction, inter alia:
(ii) prohibiting the defendants from 

using as conditions or criteria for employment and promotion tests 
or other facators which are not pro­fessionally developed or properly 
validated and which disqualify or disadvantage a higher proportion 
of black officers for promotions 
than white applicants and officers 
similarly situated;

(iii) requiring that the defendants im­mediately award promotions to black 
officers on the basis of valid, non- 
discriminatory criteria;

(iv) requiring the defendants to immediately institute an affirmative recruitment, 
hiring and promotion program to eliminate 
the effects of past racially discriminatory 
practices, including, but not limited, 
to the appointment of qualified black applicants to the Police Department at a 
ratio to be determined by the Court until the proportion of blacks on the Department 
reflects their percentage in the New Orleans 
Division;

*  *  *

(vi) requiring the defendants to offer appoint­ments and to give promotions to all appli­
cants and officers found to have been denied 
appointment or promotion as a result of their 
race or sex, with full back pay and seniority.9/

The Motion for a Temporary Restraining Order and Preliminary 
Injunction filed January 2, 1981, sought no relief that was 
not explicitly requested on the face of the complaint. Given 
these facts, the would-be intervenors can hardly argue that 
they reasonably should not have known that the promotional pro­
cess might be affected. See Stallworth, supra, 558 F.2d at 264.

9/ The amended complaint filed in November, 1973 repeated 
these requests for relief.

28



Nor can appellants excuse their failure to file in 1973
on the grounds that they had no interest in the promotional
process at that time. All three appellants who testified
were eligible for the sergeants' promotional exam that was
given in 1972 (Rec. Vol. X, pp. 114, 136, 186) and two of them
actually sat for the 1972 exam (Id. at 120 (Adams); 193 (David)),
the basis for the list which was in effect at the time the

10/
lawsuit was filed.

Finally, the fact that appellants reasonably should have 
known of their interest in the case is established by the fact 
that another white police officer, Irvin Magri, Jr., did find 
out about the lawsuit and assert his interests. On November 
16, 1973 Mr. Magri, who was then Chairman of the Board of 
PANO, the Patrolman's Association of New Orleans, wrote to 
Judge Comiskey regarding the sergeants' promotional list.
When Judge Comiskey declined to meet with Mr. Magri alone, he 
agreed by letter dated November 27, 1973 to a meeting with all 
parties and an informal -conference was held on December 6,
1973 with all parties and Irwin Sanders, counsel for Mr. Magri. 
(Minute Entry, December 6, 1973, annexed hereto along with 
correspondence described above as Exhibits A,B,C and D). At 
that conference plaintiffs announced their intention to file a

10/ Thus, for purposes of determining the original motion and tEis appeal, all but one of the fourteen appellants sat for the 
1972 exam. (See stipulation that others would testify as did 
appellant Marcel David, Rec. Vol. X, pp. 211—212).

29



preliminary injunction seeking "to block the promotion of 15
officers in the New Orleans Police Department and to further
enjoin any promotions until this case is concluded." The
hearing on the preliminary injunction was set for December 19/
1973 but by stipulation dated December 12, 1973, counsel
stipulated that defendants could promote up to fifteen patrolmen
to the rank of sergeant on condition that if additional promotions
were contemplated, plaintiffs would be given sufficient time
to re-activate their request for injunctive relief. (A copy

11/of the stipulation is annexed hereto as Exhibit E).
These facts are important not only because they establish 

that at least one white police officer did know of his interest 
in the case but also because the particular individual who 
appeared in Court was Chairman of the Police Organization of 
which most if not all appellants are members. (See Rec. Vol.
X p. 24). In Jones v. Caddo Parish School Board, 487 F.2d 
1275, 1277 (5th Cir. 1973), this Court emphasized that an 
intervenor’s adequate prior opportunity to present and resolve 
its views were sufficient reason to deny intervention. In 
this case, a fellow police officer and head of appellants own 
organization presented his views to the Court. These appellants, 
having known of the lawsuit and its challenge to the promotional 
process, had equal opportunity to do so but waited eight 
years.

11/ After this stipulation, Mr. Magri took no further part in 
tKis case.

30



The testimony of Louis Adams, cited at page 23 of appel­
lant's brief, does not prove, as appellants suggest, that 
appellants had no reason to believe that the suit would effect 
their interests. There is no requirement that defendants 
inform all police officers of the lawsuit. Moreover, whether 
or not Adams actually knew that the suit would affect him is 
irrelevant. This Court in Stallworth explicitly stated that 
actual knowledge of interest in the case is not required, 
supra, 558 F.2d at 264, citing NAACP v. New York, 413 U.S. 345 
366 (1973), and in this case, Adams knew in 1973 the suit 
challenged the promotional process. (Rec. Vol. X pp. 118-119) 

Apparently appellants urge this Court to define their 
interest as only ripening when a Court order actually and 
presently affected them directly. This, however, could not 
be how "interest" is defined for purposes of intervention, for 
if that were the definition, intervenors would have to wait 
until a court-approved stipulation, a temporary restraining 
order, a preliminary or a permanent injunction were issued in 
order to intervene. Courts judge timeliness from the time 
would be intervenors should know their interests might be 
affected. See, e.g., Preston v. Thompson, 589 F.2d 300 (7th 
Cir. 1978) (Denial of motion by the prison guards' union to 
intervene in a proceeding by the inmates against officials for 
injunctive relief was not error when union did not present 
motion until three weeks after preliminary injunction was

31



granted and knew that relief sought might impinge on'the 
interest it sought to assert); United States v. Alpine Land & 
Reservoir Co., 431 F.2d 763 (9th Cir. 1970), cert, denied, 401 
U.S. 909 (1971). As early as 1973, all intervenors were 
eligible to take the sergeants’ promotional exam and at least 
some of them did. Accordingly, their interest in the promo­
tional process existed at the time the lawsuit was filed in

11/1973 and they knew about the impact the lawsuit might have.
The second factor set forth in Stallworth is the extent of 

prejudice that the existing parties to the ligitation may suffer 
as a result of the would-be intervenors’ failure to apply for 
intervention in a timely fashion. Supra, 558 F.2d at 265.

At the time appellants' motion was before the District Court, 
the prejudice to plaintiffs would have been enormous. On January 
20, 1981 a pre-trial schedule was entered in this case. Pursuant 
to that order, trial was set for May 6, 1981, amd depositions and 
all other discovery had to be completed by April 6, 1981. If the 
motion to intervene had been granted, it would have been impossible 
to meet those deadlines. Plaintiffs could not oppose an additional 
party without the benefit of discovery, at least to the extent of

12/ Assuming arguendo that appellants' interest only occurred v̂ Een they passed the sergeants' exam, their cause would not be strengthened. The current list is a result of a test given approxi­
mately ten months (Rec. Vol. X. p. 114) before the motion to inter­vene was filed and at least one of the intervenors was on the 
sergeants' promotional list which was compiled between 1973 and 
1980 (Id.at 120).

32



taking fourteen depositions of the individual intervenors. Addi­
tional discovery would have been necessary if appellants had planned 
to call witnesses other than themselves.

Appellants correctly point out that "the prejudice —  that 
is relevant to the question of timeliness is only that prejudice 
which would result from the would-be intervenor's failure to re­
quest intervention as soon as he knew or reasonably should have 
known about his interest in the action." Stallworth, supra, 558 
F.2d at 265. Since the white police officers should have known 
about their interest in 1973, see supra, the prejudice is to be 
judged as flowing from the difference between 1973 and January,
1981. Clearly had the request for intervention been made in 1973 
plaintiffs would have suffered no prejudice. Indeed, although 
plaintiffs believe the relevant date should be 1973, even if appel­
lants had intervened when they passed the 1980 test, plaintiffs

13/would have had ten extra months in which to conduct discovery 
and prepare for trial. Because appellants delayed, plaintiffs 
could not have finished their regular preparation and prepared 
for new opposition in the remaining few months. The District 
Court was clearly correct in determining that the class of black 
applicants and black police officers should not be made to suffer 
any further delay of its claims. Cf., EEOC v. United Airlines,
Inc., 514 F.2d 946 (7th Cir. 1975) (Intervention denied when granting 
of motion would have resulted in adjournment of trial date.)

13/ See note 12, supra.
33



Appellants also failed to demonstrate to the District Court 
prejudice they might suffer if leave to intervene were denied, as 
required by the third factor in Stallworth, supra, 558 F.2d at p. 
205. The only prejudice which appellants articulate flows from 
their assertion that they would be "the most vigorous champions of 
their particular economic interests" and that defendants' repre­
sentation is complicated by political considerations and the City 
Council's request for assistance. (Original Brief of Appellants, 
p. 25). As demonstrated in point I C, supra, these assertions do 
not mean that appellants' interests, at the time their motion was 
before the District Court, were inadequately represented.

The Court in Stallworth explained that the basis for consider­
ing whether the would-be intervenors would suffer prejudice is the 
rule, first announced in Diaz v. Southern Drilling Corp., supra,
427 F.2d at 1126 and McDonald v. E. J. Lavino Company, 430 F.2d 
1065, 1073 (5th Cir. 1971) that "the district court should 
apply a more lenient standard of timeliness if the would-be 
intervenor qualifies for intervention under section (a) [inter­
vention of right] than if he qualifies under section (b)
[permissive intervention]." Id. at 266. Since the appli­
cants fail to meet the standards for intervention of right, see 
Point I, supra, there is no basis for inferring prejudice to 
the applicants absent some real demonstration of inadequate 
representation at the time the motion was made. No such 
demonstration was made, and the District Court found that 
appellants in fact were being adequately represented.

3 4



Finally, in considering the fourth factor set forth in 
Stallworth, appellants advance no unusual justification for 
their tardiness which would militate in favor of a determina­
tion that their motion to intervene was timely. Supra, 558 
F.2d at 266. The fact that this suit has been pending for 
eight years militates against any further delays. Nor are 
appellants correct that the eight-year duration is due to lack 
of diligence on the part of plaintiffs. A review of the
docket sheet and record in this case shows that during a

14/
majority of that time the lawsuit was quite active. In 
any event, in 1973 the appellants had no reason to delay their 
request for intervention and, as of July, 1980, it was apparent 
that present counsel for plaintiffs were going to, and in fact 
have, prosecuted this action with diligence. There has 
been no hiatus whatsoever in this action since July, 1980.
In Stallworth, supra this Court listed as an "unusual circum­
stance" that would militate in favor of intervention the fact 
that plaintiffs in that case opposed any notification of the 
action to white employees. Supra, 553 F.2d at 267. In this

14/ In 1973 the parties conducted extensive discovery and plaintiffs sought a temporary restraining order. In 1974, 
discovery continued, including the taking of numerous deposi 
tions. In 1975 there were motions to intervene, further dis­
covery requests and a successful motion to compel discovery.
In 1976 class certification was a major issue and defendants appealed the certification of the class to the Fifth Circuit.
In 1978 several motions were made and since the present counsel 
became active in July, 1980 no one would seriously question how 
active the case had become.

35



action, plaintiffs here have never opposed notifying anyone, 
including appellants or other white police officers, about the 
nature of this lawsuit. Nor is there any other "unusual circum­
stance" which militates in favor of granting an otherwise 
untimely application for intervention.

III.
The District Court Did Not Abuse Its Discretion in Denying Appellants Per­
missive Intervention Under Rule 24(b).

If, as established supra, there is no right to intervene 
under Rule 24(a), it is wholly discretionary with the district 
court whether to allow permissive intervention under Rule 
24(b). 7A Wright and Miller, Federal Practice and Procedure 
§1913 at p. 551 (1972). Even if the applicants' claim 
or defense and the main action "have a common question of 
law or fact in common" (Rule 23(b)(2), F.R. Civ. P.), the 
refusal to grant permissive intervention "is reviewable only 
for a clear abuse of discretion." Stallworth v. Monsanto, 
supra, 558 F.2d at 269-70; accord, Allen Calculators, Inc. 
v. National Cash Register Co., 332 U.S. 137, 142 (1944);
Korioth v. Briscoe, 523 F.2d 1271, 1278 n.24 (5th Cir. 1975). 
The refusal to grant these applicants permissive intervention 
at the time of their initial motion was entirely proper and car- 
in no way be deemed a clear abuse of discretion-

3 6



\\
\

As demonstrated in point II supra, the grant of permissive 
intervention would have been improper because appellants' 
motion to intervene was untimely. In addition, the district 
court may consider "the likelihood that "intervention may 
interfere with orderly judicial processes." Stallworth v. 
Monsanto Co., supra. 558 F.2d at 266. In this case, it was 
very clear that intervention would have hampered the orderly 
process of this case. Thus, for example, after appellants 
prepared their supplemental memorandum of law and supplemental 
affidavits, news reporters received copies of the documents 
prior to counsel of record in this case (Rec. Vol. X, p. 220), 
and this action began to be tried in the press. (See Rec. Vol.
X, pp. 79-80). Moreover, although appellants profess not to 
have wanted to delay trial in this action, there was no way, 
given the small amount of time in which plaintiffs had to 
finalize preparations for trial, that they could have done so 
and conducted all discovery as to the fourteen movants for 
intervention.

Finally, the correctness with which the District Court 
exercised his discretion is apparent from its statements in 
open court on November 16, 1981 (annexed as Exhibit F.). As 
stated above, plaintiffs and defendants have reached agreement 
on a proposed consent decree. The situation is now vastly 
different than it was at the time of appellants' original motion. 
Recognizing this, the District Court has indicated it will allow 
intervention for the purpose of contesting the proposed consent

37



d6cr6G r not only to dpp6llcintis but to the thrsG oth6ir ssts of 
movants for intervention. See Transcript of November 16, 1981, 
annexed as Exhibit E. This ruling, plaintiffs suggest, will 
moot appellants' appeal altogether. In any event, the District 
Court's assessment of the law and the facts now, as well as at 
the time of appellants' original motion, is eminently correct 
and certainly no abuse of discretion. See Cohn v. EEOC, supra, 
569 F.2d at 911-912.

CONCLUSION

For the reasons set forth above, the decision of the 
district court should be affirmed. Intervention was properly 
denied both under Rule 24(a) and 24(b). Finally, the recent 
indication of the District Court to allow appellants to inter­
vene for the purpose of contesting the proposed consent decree 
renders this appeal moot.

Respectfully submitted,

JACK GREENBfcJUCT̂  J 
0. PETER SHERWOOD 
BETH J. LIEF 
CLYDE E. MURPHY10 Columbus Circle 

Suite 2030
New York, New York 10019

RONALD WILSON310 Richards Building
837 Gravier Street
New Orleans, Louisiana 70112

Attorneys for Plaintiffs-Appeilants

38



%