DONNELLY v GLICKMAN, 9716648
U.S. 9th Circuit Court of Appeals
DONNELLY v GLICKMAN
9716648
LESA L. DONNELLY and GINELLEO'CONNOR, for themselves and allothers similarly situated,Plaintiffs-Appellees,v.DANIEL GLICKMAN, Secretary, U.S.No. 97-16648Department of Agriculture and G.LYNN SPRAGUE, Regional Forester D.C. No.for Region 5, U.S. Forest Service, CV 95-04389-DLJDefendants-Appellees.OPINIONv.WILLIAM P. LEVIS, WILLIAM D.SPYRISON, ALAN DOERR, andDONALD WILL, for themselves andall others similarly situated,Appellants.
Appeal from the United States District Courtfor the Northern District of CaliforniaD. Lowell Jensen, District Judge, PresidingArgued and SubmittedAugust 11, 1998--San Francisco, CaliforniaFiled October 22, 1998Before: Melvin Brunetti, A. Wallace Tashima, andSusan P. Graber, Circuit Judges.Opinion by Judge Graber
_____________________________SUMMARY
______________________COUNSEL Louis Demas, Sacramento, California, for the appellants.Brad Yamauchi, Minami, Lew & Tamaki, San Francisco, Cal-ifornia, for the plaintiffs-appellees.Adam Issenberg, Civil Division, United States Department ofJustice, Washington, D.C., for the defendants-appellees.
_____________________________OPINION GRABER, Circuit Judge:Two female employees brought this individual and classaction, claiming that their employer had subjected them andother female employees to gender-based discrimination inviolation of Title VII of the 1964 Civil Rights Act, asamended (Title VII), 42 U.S.C. S 2000e, et seq. Four maleemployees moved to intervene on behalf of themselves and allother employees not within the plaintiff class, either as ofright (Fed. R. Civ. P. 24(a)(2)) or permissively (Fed. R. Civ.P. 24(b)(2)). The district court denied both motions. The pro-posed intervenors appeal. We affirm the former ruling anddismiss the appeal from the latter.FACTUAL AND PROCEDURAL HISTORYA. Prior Actions1. Female EmployeesThis is the second Title VII action brought by femaleemployees of the United States Forest Service ("ForestService") in Region 5. In 1973, a female employee sued onbehalf of herself and similarly situated employees, claimingthat the Forest Service in Region 5 had discriminated in mak-ing hiring and promotion decisions. The parties entered intoa consent decree in 1979, which the district court approved in1981. The terms of that decree were to remain in effect until1986.In 1986, the female employees' class filed a motion forcontempt of court, in which they alleged that the Forest Ser-vice had not complied with the consent decree. The districtcourt granted the motion and ordered the consent decree toremain in effect until 1991. In 1992, the parties agreed to anew settlement, which expired in 1994.2. Male EmployeesIn 1990, a group of male employees in Region 5 moved tointervene in the female employees' Title VII action. The dis-trict court denied their motion, holding that it was untimely.This court affirmed in an unpublished disposition. Bernardi v.Yeutter, 945 F.2d 408 (9th Cir. 1991) (Table).Thereafter, male employees brought a separate actionagainst the Forest Service, challenging the terms of the con-sent decree. The district court dismissed that action holding,in part, that the male employees could not bring an indepen-dent action challenging the terms of a consent decree. Levitoffv. Espy, 1993 WL 557674 (N.D. Cal. Dec. 14, 1993). Thiscourt affirmed that holding in an unpublished disposition.Levitoff v. Espy, 74 F.3d 1246 (9th Cir. 1996) (Table). Themale employees petitioned for a writ of certiorari, which theUnited States Supreme Court denied. Levitoff v. Glickman,117 S. Ct. 296 (1996).B. Current Action1. Plaintiffs' ActionOn December 8, 1995, plaintiffs Lesa L. Donnelly andGinelle O'Connor filed an individual and class action againstthe Forest Service. In the initial complaint, plaintiffs' classclaims alleged that the Forest Service in Region 5 had sub-jected female employees to a gender-based hostile work envi-ronment and that it had discriminated against femaleemployees in hiring, promotions, and training.1 On February15, 1996, plaintiffs filed a first amended complaint, in whichthey deleted their class claims respecting hiring, promotions,and training.On February 24, 1997, the district court certified a class ofplaintiffs to include: All past and current non-supervisory female employ- ees of the U.S. Forest Service Region 5 who have been or are subject to a sexually hostile work envi- ronment at any time since [February 1, 1994,] and who are seeking equitable relief only.In its order certifying the class, the district court noted thatplaintiffs had abandoned their class claims that the Forest Ser-vice discriminated against women in hiring, promotions, andtraining. On March 6, 1997, plaintiffs amended their com-plaint again to include the class claims that the district courthad certified.Even though plaintiffs had abandoned their underlyingclaims for discrimination in hiring, promotions, and training,the second amended complaint retained a remedial request foraffirmative action in hiring, work assignments, and promo-tions. In particular, plaintiffs sought an injunction: Requiring defendants to abolish sex discrimination, sexual harassment, hostile work environment for women, and reprisal against women hired under the Bernardi consent decree or who have complained of sex discrimination by means of an affirmative action plan establishing goals and timetables for the imple- mentation of all actions necessary to assure an end to all such sex discrimination and reprisal against the class members[.]2. Motion to InterveneOn May 14, 1997, four male employees of the Forest Ser-vice in Region 5 moved to intervene on behalf of themselvesand all other employees not within the plaintiff class. The pro-posed intervenors sought to intervene pursuant to Fed. R. Civ.P. 24(a)(2) (intervention as of right) and 24(b)(2) (permissiveintervention). They argued that they were asserting their ownaffirmative claims of gender-based discrimination and thatany remedy that plaintiffs might obtain could affect them.C. District Court's DecisionThe district court denied the motions to intervene. Thecourt held that the proposed intervenors could not interveneas of right in either the liability or remedial phase of plain-tiffs' action. The district court also denied the request for per-missive intervention.D. Oral ArgumentDuring oral argument before this court, plaintiffs expresslywaived their right to any affirmative action remedy involvinghiring, work assignments, or promotions. Instead, plaintiffslimited their remedies to those listed in the district court'swritten order denying intervention: [P]laintiffs request that the defendants be ordered to take specific actions to remedy the hostile nature of the work environment, including: (1) dedicating sig- nificant funding and staff to implement all changes resulting from the parties' legal settlement within two years; (2) removing or demoting all managers in Region 5 who have violated the agency's policies and failed to meet their legal responsibility to promptly investigate harassment; (3) establishing compliance with Equal Employment Opportunity ("EEO") guidelines as a critical element of manager performance standards; (4) creating a process for the prompt investigation of harassment and reprisal complaints separate from the agency's EEO process; (5) training all employees on EEO issues; and (6) eliminating the backlog of current EEO cases alleg- ing discrimination, harassment, and reprisal against women.INTERVENTION AS OF RIGHTA. JurisdictionA district court's denial of a motion for intervention as ofright is an appealable "final decision." League of United LatinAm. Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997)(LULAC). Therefore, we have jurisdiction to review such adenial pursuant to 28 U.S.C. S 1291.2 Id. B. Standard of ReviewWe review a district court's denial of a motion for interven-tion as of right de novo, except that we review questions oftimeliness for abuse of discretion. Id. C. Elements[1] Fed R. Civ. P. 24(a)(2) governs intervention as of right: Upon timely application anyone shall be permitted to intervene in an action . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.An applicant seeking intervention as of right must show that:(1) it has a "significant protectable interest " relating to theproperty or transaction that is the subject of the action; (2) thedisposition of the action may, as a practical matter, impair orimpede the applicant's ability to protect its interest; (3) theapplication is timely; and (4) the existing parties may not ade-quately represent the applicant's interest. Cabazon Band ofMission Indians v. Wilson, 124 F.3d 1050, 1061 (9th Cir.1997), cert. denied, 118 S. Ct. 2319 (1998).[2] In determining whether intervention is appropriate, weare guided primarily by practical and equitable considerations.We generally interpret the requirements broadly in favor ofintervention. See United States ex rel. McGough v. CovingtonTechs. Co., 967 F.2d 1391, 1394 (9th Cir. 1992) ("Generally,Rule 24(a)(2) is construed broadly in favor of proposed inter-venors and we are guided primarily by practicalconsiderations.") (internal quotation marks and citation omit-ted).D. Liability Phase of Plaintiffs' ActionThe district court denied intervention in the liability phaseof plaintiffs' class action on the grounds that the proposedintervenors lacked a significant protectable interest in plain-tiffs' action and that denying intervention would not impairthe interests of the proposed intervenors. On de novo review,we agree with the first ground and, therefore, need not reachthe second.[3] The proposed intervenors argue that their independentclaims for gender-based discrimination give them a signifi-cant protectable interest in plaintiffs' class action.3 An appli-cant has a "significant protectable interest" in an action if (1)it asserts an interest that is protected under some law, and (2)there is a "relationship" between its legally protected interestand the plaintiff's claims. Northwest Forest Resource Councilv. Glickman, 82 F.3d 825, 837 (9th Cir. 1996).[4] The proposed intervenors' independent claims ofgender-based discrimination undeniably are covered by TitleVII. However, their claims of discrimination against maleemployees are unrelated to plaintiffs' particular claims of"hostile-work-environment" discrimination against femaleemployees. It is not enough that both groups assert discrimi-nation claims against the same defendants.[5] An applicant generally satisfies the "relationship"requirement only if the resolution of the plaintiff's claimsactually will affect the applicant. See Montana v. UnitedStates Envtl. Protection Agency, 137 F.3d 1135, 1141-42 (9thCir. 1998) (holding that the proposed intervenors lacked a"significant protectable interest," because they did not havethe type of permit that was the subject of the plaintiffs'action), cert. denied, 1998 WL 249357 (U.S. Oct. 5, 1998)(No. 97-1929); Greene v. United States, 996 F.2d 973, 976-78(9th Cir. 1993) (holding that an applicant lacked a "significantprotectable interest" in an action when the resolution of theplaintiff's claims would not affect the applicant directly).Plaintiffs' action focuses exclusively on whether the ForestService in Region 5 subjected female employees to a hostilework environment. Resolution of plaintiffs' action, therefore,will not affect the proposed intervenors' claims that the ForestService subjected male employees to discriminatory treat-ment. Thus, the proposed intervenors do not have a"significant protectable interest" in the liability phase ofplaintiffs' action.E. Remedial Phase of Plaintiffs' Action[6] Although the proposed intervenors lack an interest inthe liability phase of plaintiffs' action, in theory they stillcould intervene in the remedial phase of the action. See Chur-chill County v. Babbitt, 150 F.3d 1072, 1083 (9th Cir. 1998)("[T]he district court did not err by limiting its interventiononly to the remedial phase" when the applicant had no interestin the liability phase of the action.); Forest ConservationCouncil v. United States Forest Serv., 66 F.3d 1489, 1499 &n.11 (9th Cir. 1995) (The applicants "are entitled to interveneas of right under Fed. R. Civ. P. 24(a)(2) in the portion of theproceedings addressing the injunctive relief sought by plain-tiffs . . . [even though they] cannot claim any interest thatrelates to the issue of the [defendant's] liability.").4[7] The district court denied intervention in the remedialphase of plaintiffs' action on two grounds: that the motion tointervene was premature and that plaintiffs might never obtainany remedy that could affect the proposed intervenors. Weaffirm instead on the ground that the proposed intervenorslack a "significant protectable interest" 5 in any of plaintiffs'potential remedies. See Herring v. Federal Deposit Ins. Corp.,82 F.3d 282, 284 (9th Cir.) ("We may affirm on any basis therecord supports, including one the district court did notreach."), cert. denied, 117 S. Ct. 581 (1996).[8] The proposed intervenors contend mainly that they havea significant protectable interest in plaintiffs' class request foraffirmative action in hiring, work assignments, and promo-tions, found in the prayer for relief of the second amendedcomplaint. We need not address that contention. As noted, atoral argument, plaintiffs expressly waived their right to seekor receive any such remedies. Plaintiffs' waiver eliminates thepossibility of their obtaining those remedies in this action.Our holding is consistent with Forest ConservationCouncil. There, the plaintiffs stated at oral argument that theywanted to modify their request for injunctive relief so that itwould not implicate a significant protectable interest of theapplicant. Forest Conservation Council, 66 F.3d at 1497 n.9.The court held that it must consider the remedy as requestedin the pleadings. Id. The court noted, however, that the districtcourt could consider whether the modification eliminated theapplicant's interest in the remedy after the plaintiffs actuallymodified their request for injunctive relief. Id.In Forest Conservation Council, the court refused to relyon a potential modification of the request for injunctive relief,because there was no certainty about whether a modificationwould occur and what effect it might have on the applicant'sinterest if it did occur. Unlike in Forest Conservation Coun-cil, here no uncertainty remains. We know that a waiver hasoccurred, and we know what effect that waiver has on the pro-posed intervenors' interest in the affirmative action remedies.Because plaintiffs' waiver eliminates all such remedies fromthe action, the now-nonexistent remedies cannot implicate asignificant protectable interest of the proposed intervenors.[9] The proposed intervenors do not (and cannot success-fully) argue that the other remedial requests facially implicatetheir significant protectable interests. Those remedies seek to:(1) improve the promptness of the Forest Service's responseto female employees' complaints of harassment and reprisal;(2) create a new process for investigating such complaints; (3)discipline managers who harass female employees or who failto investigate complaints of such harassment; (4) considerEEO compliance when evaluating the performance of manag-ers; (5) train employees about EEO issues; and (6) fund theforegoing efforts. The proposed intervenors give two reasonswhy intervention is required nevertheless. Neither of thesereasons persuades us.[10] First, the proposed intervenors argue that the listedremedies could go beyond ending harassment of femaleemployees to create discrimination against male employees.That possibility is not inherent in any of the requested reme-dies. When an applicant's purported interest is so tenuous,intervention is inappropriate. See Benny v. England (In reBenny), 791 F.2d 712, 721 (9th Cir. 1986) ("This possibilitythat our decision could affect [the applicants' ] interests is tootenuous to entitle them to intervene [as] of right."). See alsoForest Conservation Council, 66 F.3d at 1494 (holding that,to entitle a third party to intervene, the plaintiff's requestedremedy must have a "direct, immediate, and harmful effect[ ]"on the third party's legally protectable interest).[11] Second, the proposed intervenors argue that they alsodeserve the kinds of remedies that plaintiffs have requested.As discussed above, an applicant's mere desire to obtain simi-lar relief is insufficient, by itself, to necessitate intervention.[12] The proposed intervenors also argue that they have aninterest in Donnelly's and O'Connor's individual remedialrequests involving work assignments and promotions. How-ever, the proposed intervenors have no protectable interest inpositions that they may have obtained due to specific discrim-inatory employment decisions. See Dilks v. Aloha Airlines,Inc., 642 F.2d 1155, 1157 (9th Cir. 1981) (per curiam) ("It is,of course, true that whenever someone is discharged, thosejunior to him may improve their seniority, and, if a reinstate-ment is required, the juniors will revert to a lesser seniority.But the juniors have no legally protectable right to benefitfrom an invalid discharge.") (citation omitted).We conclude that the district court did not err in denyingthe motion to intervene as of right. Accordingly, we affirmthat decision.PERMISSIVE INTERVENTIONA. Jurisdiction and Standard of ReviewWe have jurisdiction over the district court's denial of per-missive intervention only if the district court abused its dis-cretion in reaching that decision. LULAC, 131 F.3d at 1307-08. This court explained the jurisdictional requirement inLULAC: [I]n determining its jurisdiction, a reviewing court must -- despite the seemingly "cart-before-the- horse" nature of the inquiry -- first decide whether the district court abused its discretion in denying the motion. If it finds an abuse of discretion, it retains jurisdiction and must reverse; if it determines, on the other hand, that no abuse of discretion has occurred, it must dismiss the appeal for want of jurisdiction.Id. (emphasis in original).B. Elements[13] Fed R. Civ. P. 24(b)(2) governs permissive interven-tion: Upon timely application anyone may be permitted to intervene in an action . . . when an applicant's claim or defense and the main action have a question of law or fact in common. . . . In exercising its discre- tion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.An applicant who seeks permissive intervention must provethat it meets three threshold requirements: (1) it shares a com-mon question of law or fact with the main action; (2) itsmotion is timely; and (3) the court has an independent basisfor jurisdiction over the applicant's claims. Northwest ForestResource Council, 82 F.3d at 839.[14] Even if an applicant satisfies those threshold require-ments, the district court has discretion to deny permissiveintervention. See Orange v. Air Cal., 799 F.2d 535, 539 (9thCir. 1986) ("Permissive intervention is committed to thebroad discretion of the district court."); Spangler v. PasadenaCity Board of Educ., 552 F.2d 1326, 1329 (9th Cir. 1977)(identifying nonexclusive discretionary factors that the districtcourt may consider when deciding whether to grant permis-sive intervention). In exercising its discretion, the districtcourt must consider whether intervention will unduly delaythe main action or will unfairly prejudice the existing parties.See Fed. R. Civ. P. 24(b)(2) (so providing); Venegas v.Skaggs, 867 F.2d 527, 530 (9th Cir. 1989) (so holding), aff'don other grounds, Venegas v. Mitchell,
495 U.S. 82
(1990).C. AnalysisThe proposed intervenors sought permissive interventiononly in the liability phase of plaintiffs' action. See Fed. R.Civ. P. 24(b)(2) (intervention may be permitted "when anapplicant's claim or defense and the main action have a ques-tion of law or fact in common"). The district court denied thatrequest. In exercising its discretion to deny the request forpermissive intervention, the district court relied on three fac-tors.First, the court held that the proposed intervenors' andplaintiffs' claims share no common factual proof. SeeSpangler, 552 F.2d at 1329 (noting that a district court mayanalyze the relationship between the plaintiff's action and theapplicant's claims in deciding whether to exercise its discre-tion to grant intervention). See also Deus v. Allstate Ins. Co.,15 F.3d 506, 525 (5th Cir. 1994) ("The intervention rule is . . .not intended to allow the creation of whole new lawsuits bythe intervenors.").Second, the district court observed that the interests ofplaintiffs and the proposed intervenors "are in directopposition," resulting in prejudice to existing parties. Underthe circumstances, the court reasoned, requiring plaintiffs tolitigate their claims with the proposed intervenors as co-plaintiffs would harm plaintiffs.[15] Third, the court relied on the factor of undue delay ofthe main action. Because of the foregoing differences betweenthe proposed intervenors and plaintiffs, allowing intervention"would only serve to undermine the efficiency of the litiga-tion process."[16] The district court did not abuse its discretion when itdenied permissive intervention for those reasons. That beingso, we lack jurisdiction over the district court's decision.CONCLUSIONThe district court's denial of intervention as of right (Fed.R. Civ. P. 24(a)(2)) is AFFIRMED. The appeal from the dis-trict court's denial of permissive intervention (Fed. R. Civ. P.24(b)(2)) is DISMISSED. the end
___________________________FOOTNOTES 1 Plaintiffs Donnelly and O'Connor also brought individual claims alleg-ing, in part, that the Forest Service had discriminated against them in mak-ing specific decisions about work assignments and promotions.2 Title 28 U.S.C. S 1291 provides in part: The court of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts of the United States, . . . except where a direct review may be had in the Supreme Court.(Emphasis added).3 The proposed intervenors do not argue that they can intervene in theliability phase of the action because of Donnelly's and O'Connor's indi-vidual claims.4 In Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 528 (9th Cir.1983), the court held that an applicant's interest is determined not by theparticular issue before the court but, instead, by the applicant's interest inthe action as a whole. To the extent that Sagebrush Rebellion suggestedthat a district court cannot permit intervention in the remedial phase of anaction only, its reach has been limited by the later decisions cited in thetext.5 Title 42 U.S.C. S 2000e-2(n) generally bars independent challenges toremedial orders in employment discrimination actions but expressly statesthat the statute shall not "alter the standards for intervention under rule 24of the Federal Rules of Civil Procedure." 42 U.S.C. S 2000e-2(n)(2)(A).Thus, Congress' decision to give preclusive effect to Title VII remedialorders did not eliminate the "significant protectable interest" requirementof Fed. R. Civ. P. 24(a)(2).