No. 95.41 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1995 STEPHEN A. ZIMMERMAN, PETITIONER v. OFFICERS FOR JUSTICE, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BREIF FOR THE UNITED STATES IN OPPOSITION DREW S. DAYS, III Solicitor General DEVAL L. PATRICK Assistant Attorney General DAVID K. FLYNN LISA J. STARK Attorneys Department of Justice Washington, D.C. 20530 (202)514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether the court of appeals erred in affirming the district court's denial of petitioner's motion to inter- vene pursuant to Rule 24, Fed. R. Civ. P. (I) ---------------------------------------- Page Break ---------------------------------------- TABLE OF CONTENTS Page Opinions below . . . . 1 Jurisdiction . . . . 1 Statement . . . . 2 Argument . . . . 5 Conclusion . . . . 8 TABLE OF AUTHORITIES Cases: Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995) . . . . 6 Barfus v. City of Miami, 936 F.2d 1182 (11th Cir. 1991) . . . . 6 Kaisha v. U. S. Philips Corp., 114 S. Ct. 425(1993) . . . . 5, 6, 7 Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501 (1986) . . . . 7 Miller v. Johnson, 115 S. Ct. 2475 (1995 ) . . . . 6 Missouri v. Jenkins, 115 S. Ct. 2038(1995) . . . . 6 Officers for Justice v. Civil Serv. Comm'n of the City & County of San Francisco, 473 F. Supp. 801 (N.D. Cal. 1979), aff'd, 688F.2d 615(9th Cir. 1982), cert. denied, 459 U.S. 1217 (1983) . . . . 2 O'Shea v. City of San Francisco, 966 F.2d 503(9th Cir. 1992) . . . . 6 Rufo v. Inmates of Suffolk County Jail, 502 U. S. 367 (1992) . . . . 7 Rules: I Fed. R. Civ. P.: Rule 24(a) . . . . 3 Rule 24(b) . . . . 3 (III) ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1995 No. 95-41 STEPHEN A. ZIMMERMAN, PETITIONER v. OFFICERS FOR JUSTICE, ET AL. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-8a) is unreported, but the decision is noted at 52 F.3d 334 (Table). The order of the district court (Pet. App. 1b- 2b) is unreported. JURISDICTION The judgment of the court of appeals was entered on April 13, 1995. The petition for a writ of certiorari was filed on July 7, 1995. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). (1) ---------------------------------------- Page Break ---------------------------------------- 2 STATEMENT 1. Individual plaintiffs and the Officers for Justice, an organization representing various minority inter- ests, filed suit alleging racial and sexual discrimi- nation in the employment practices of the San Francisco Police Department. The San Francisco Police Officers Association (POA), a union represent- ing member police officers, intervened as a defendant. The United States subsequently filed suit alleging that the Department had engaged in discriminatory employment practices. The suits were consolidated. Pet. App. 2a. In 1979, all parties, including the POA, signed a consent decree that was approved by the district. court. See Officers for Justice v. Civil Serv. Con-m `n of City & County of San Francisco, 473 F. Supp. 801 (N.D. Cal. 1979), aff'd, 688 F.2d 615 (9th Cir. 1982), cert. denied, 459 U.S. 1217 (1983). In explaining its approval of the parties' agreement, the district court noted that "[b]lacks, Hispanics and Asians were and continue to be substantially underrepresented," par- ticularly among higher-ranking officers, 473 F. Supp. at 804; that written examinations for promotion "displayed a substantial adverse statistical impact on minorities who took them" and had not been shown to be job-related, ibid.; that other selection criteria had a significant adverse impact on minorities and women, id. at 804-805; and that "substantial evidence of inten- tional discrimination was presented to th[e] court" during the litigation, id. at 805. The court also ob- served that the consent decree "includes no racial quotas or preferences" but rather "emphasizes equal opportunity in the future, not redress for past wrongs." Id. at 808. The decree required the City to ---------------------------------------- Page Break ---------------------------------------- 3 make a specified number of promotions and prohib- ited it from using hiring and promotional practices that would have an adverse impact on women and minorities. Pet. App. 2a. Because of delays in administering promotional examinations, the district court in 1986 entered a "Supplemental Order" pursuant to an agreement of the parties. Pet. App. 3a. Recognizing that "[t]he review procedures afforded * * * individual officers from challenging the "appropriateness or adequacy of the various components of a particular examination procedure." Ibid. By 1989, however, most of the re- quired promotions still had not been made. Ibid. The district court therefore held a hearing and ruled that the consent decree would not terminate automati- cally, but only with its approval. Id. at 3a-4a. The parties and their experts worked together over a four- year period to develop and administer a lieutenant's promotional examination. Id. at 4a. That examination was given in April 1993. Ibid. 2. Petitioner, a white police officer and POA mem- ber who ranked 193 out of 255 candidates taking the examination, filed a motion to intervene as a matter of right, see Fed. R. Civ. P. 24(a), and for permissive intervention, see Fed. R. Civ. P. 24(b). He sought to challenge the design, administration, and scoring of the lieutenant's examination and to argue that the promotional examination had an adverse im- pact on white males. The district court denied peti- tioner's motion, finding that (1) the examination did not have an adverse impact on white males; (2) peti- tioner had been adequately represented by the POA; ---------------------------------------- Page Break ---------------------------------------- 4 (3) intervention would cause inevitable delay; (4) petitioner's low ranking on the examination made him ineligible for promotion; and (5) petitioner's challenge to the examination was barred by the Supplemental Order. Pet. App. 4a-5a. 3. The court of appeals affirmed. Pet. App. 1a-8a. The court first set forth the four-part test governing applications for intervention as of right: Under Federal Rule of Civil Procedure 24(a)(2), an applicant is entitled to intervene as a matter of right if: (1) the application for intervention is timely; (2) the applicant has an interest in the transaction which is the subject matter of the pending litigation; (3) the applicant's ability to protect his interest would be impaired unless intervention were allowed; and (4) the applicant's interest is not adequately represented by the present parties. Id. at 5a. Insofar as petitioner sought to contest the legality of the consent decree and its implementation by the district court, the court of appeals held that his application was untimely. Id. at 5a-6a. The court explained that petitioner, "a police officer since 1977 and member of the POA, should have brought this challenge when the supplemental order was entered in 1989." Ibid. The court held that petitioner's appli- cation to intervene was timely insofar as he sought to challenge the design and administration of the 1993 examination, since petitioner "could have no knowl- edge of any alleged testing improprieties until after the test was administered." Id. at 5a. The court concluded, however, that with respect to that claim petitioner failed to satisfy the last two requirements of the four-part test, see id. at 6a, since the POA ---------------------------------------- Page Break ---------------------------------------- 5 could be expected to protect his interests in valid test design and administration, id. at 7a. The court ob- served that petitioner "ha[d] failed to suggest any credible reason why he and the POA would not share a common interest in ensuring union members are promoted through a fair and just testing procedure" or that he would "offer any necessary element to the proceedings that other parties would neglect." Ibid. Finally, the court of appeals affirmed the de- nial of permissive intervention based on the district court's finding that petitioner's participation would " `inevitably' prejudice the rights of the parties, and further complicate and delay this highly com- plex case." Id, at 8a. ARGUMENT 1. "[T]he decision on any particular motion to in- tervene * * * is always to some extent bound UP in the facts of the particular case," and such decisions are generally unlikely to raise legal issues warrant- ing review by this Court. Kaisha v. U.S. Philips Corp., 114 S. Ct. 425, 428 (1993). Here, the court of appeals affirmed the district court's denial of inter- vention based on its findings that (1) the POA ade- quately represented petitioner's interest with regard to the 1993 promotional examination and (2) peti- tioner's attack on the consent decree and Supple- mental Order was untimely.' The court of appeals' ___________________(footnotes) 1 Petitioner obscures the issue by arguing that he "would surely have added a `necessary element to the proceedings that the other parties would neglect,' namely, a challenge to the Consent Decree on constitutional grounds of equal protection and due process." Pet. 17 (quoting Pet. App. 7a). The court of appeals squarely held that petitioner's application to inter- vene as of right was untimely insofar as petitioner sought to ---------------------------------------- Page Break ---------------------------------------- 6 decision is correct, and this Court's review of that decision would not result in the enunciation of any new principle of law. The petition for a writ of certiorari should therefore be denied. See ibid.2 2. Petitioner's principal argument (see Pet. 8) is that the Court should grant certiorari in order to consider the lawfulness of the consent decree and Supplemental Order in light of its recent decisions in Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995); Missouri v. Jenkins, 115 S. Ct. 2038 (1995); and Miller v. Johnson, 115 S. Ct. 2475 (1995). The court of appeals did not address petitioner's contentions on the merits, however; its ruling was limited to affirmance of the district court's denial of leave to intervene. See ___________________(footnotes) challenge the consent decree and its implementation by the district court. See Pet. App. 5a-6a. The court of appeals' determination that petitioner's interests would be adequately protected by the POA applied only to petitioner's attack on the design and administration of the 1993 examination, see id. at 6a- 7a-the aspect of petitioner's challenge that the court had found to be timely, see id. at 5a. 2 Contrary to petitioner's suggestion (Pet. 17-18), the de- cision below is not in conflict with Barfus v. City of Miami, 936 F.2d 1182 (11th Cir. 1991), or O'Shea v. City of San Francisco, 966 F.2d 503 (9th Cir. 1992). The plaintiffs in Barfus and O'Shea did not seek to intervene in ongoing litigation, nor did they challenge the terms of a consent decree. Rather, the courts in both cases simply held that the existence of a consent decree did not prevent the plaintiffs from filing new lawsuits challenging individual employment decisions that were neither required nor prohibited by the decree itself. See Barfus, 936 F.2d at 1185-1189; O `Shea, 966 F.2d at 505-506. Moreover, O'Shea is a prior decision of the same court of appeals that decided the present case. Nor is there any basis for petitioner's unsupported assertion (Pet. 19) that the circuits are in conflict regarding the criteria for permissive intervention. ---------------------------------------- Page Break ---------------------------------------- 7 Pet. App. 8a n.7. Questions concerning the legality of the consent decree and implementing orders are therefore not appropriate for this Court's review. Petitioner's reliance on Kaisha v. U.S. Phillips Corp., supra (see Pet. 15-16), is wholly misplaced. Despite petitioner's assertion, Kaisha did not hold that "[w]here the Court is likely to enunciate an important new principle of law, it should grant certiorari to review the intervention issue also." Pet. 16. To the contrary, the Court in Kaisha dismissed the writ of certiorari as improvidently granted rather than address an antecedent intervention question. See 114 S. Ct. at 428.3 ___________________(footnotes) 3 In any event, this Court's recent decisions in Adarand, Jenkins, and Miller are of little relevance to petitioner's consti- tutional challenge to the consent decree and Supplemental Order. None of those cases involved a consent decree or comparable voluntary effort to redress the effects of state or local employment discrimination. Petitioner's substantial re- liance on Jenkins (see Pet. 12-14) is particularly misplaced. See, e.g., Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 522-523 (1986) (because "it is the agreement of the parties, rather than the force of the law upon which the complaint was originally based, that creates the obligations embodied in a consent decree," the statutory limita- tions that restrict a court's power to award relief after trial "simply do not apply when the obligations are created by a consent decree"). Cf. Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 392 (1992) ("state and local officers in charge of institutional litigation may agree to do more than that which is minimally required by the Constitution to settle a case and avoid further litigation"). ---------------------------------------- Page Break ---------------------------------------- 8 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. DREW S. DAYS, III Solicitor General DEVAL L. PATRICK Assistant Attorney General DAVID K. FLYNN LISA J. STARK Attorneys SEPTEMBER 1995