APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Seitz, Chief Judge, Gibbons and Garth, Circuit Judges Garth, Circuit Judge, concurring in part and dissenting in part.
This is an appeal from an order denying three applications to intervene as parties-defendants for the purpose of seeking temporary relief from and permanent modification of a final judgment. The final judgment at issue was entered by consent on June 20, 1974, and modified by the district court on November 29, 1976. It disposed of a complaint by William H. Bolden, III and others charging the Commonwealth of Pennsylvania with racial discrimination in the hiring and promotion practices of the State Police, in violation of the thirteenth and fourteenth amendments and of 42 U.S.C. §§ 1981, 1983, 1985(3), and 1988.*fn1 The consent judgment was entered after substantial discovery and after the completion of the plaintiffs' case, which consisted in part of a detailed stipulation by the defendants admitting discriminatory practices in selection and promotion by the State Police. The defendants at that time were the Pennsylvania State Police, a legislatively -created agency of the Commonwealth, and a number of government officials responsible for its operations. The judgment mandated class action relief.
The present applicants for intervention do not contend that the discrimination charged in the complaint, and shown by the evidence in the plaintiffs' case, did not occur. They seek modification only of the remedial provisions of the judgment. Each motion for intervention seeks to modify the judgment in four respects:
(1) to establish a mandatory schedule for the defendants to submit validated hiring and promotion criteria for court approval (the validation claim);
(2) to terminate the hiring and promotion quotas immediately, or at the latest when valid hiring and promotion criteria are adopted (the quota claim);
(3) to restore seniority as a criterion for promotion and to grant retroactive seniority to any person shown to have been an actual victim of racially discriminatory employment or promotion practices (the seniority credit claim);
(4) to adjust the work force statistics to reflect a lower representation of minorities in the work force from which the State Police draws its employees (the minority goal claim).
The applicants for intervention, all of whom are represented by the same attorneys, are divided into three distinct groups. Danny R. McKnight, John Dudinskie, and Albert Minnick are non-minority State Police officers who seek to represent a class consisting of all non-minority officers who would have been promoted but for the operation of the decree (the McKnight class). Robert W. McDonald and Donald S. Millard, Jr., are non-minority applicants for appointment to the State Police who seek to represent a class consisting of all non-minority applicants who would have been appointed but for the operation of the decree (the McDonald class). Finally, there is the Conference of Pennsylvania State Police Lodges of the Fraternal Order of Police (FOP), an unincorporated association which functions as a collective bargaining agent for State Police officers. It is not disputed that the litigation on behalf of each class of applicants for intervention is being managed and financed by the FOP.*fn2
The McDonald and the FOP motions to intervene were filed on August 1, 1977. An amended McKnight motion, filed on April 27, 1977, had already been under consideration for several months. After an evidentiary hearing, the district court issued an order dated October 12, 1977, which denied all three motions and declined to modify the judgment pendente lite. The court's opinion in support of that order was filed on December 2, 1977 (C.A. 73-2604).
Since it is clear that the real motive force behind each motion is the FOP, a history of its involvement in this case would prove enlightening. The FOP first came on the scene in March, 1974, when during the trial on Bolden's complaint, attorney Howard Richard appeared for Leo Pierce, individually and as Chairman of the FOP. Richard moved that Pierce be permitted to intervene as a defendant to protect the interests in promotion and other benefits of State Police officers who might be affected by the judgment. While this motion was still sub judice, the Attorney General of Pennsylvania appointed Richard, who regularly represented the FOP in collective bargaining, an Assistant Attorney General authorized to participate in the defense of the Bolden action. Richard thereupon withdrew Pierce's motion to intervene.
The reason for this unusual series of events is disclosed by Exhibit 1 of the applicants for intervention, the transcript of a meeting held on April 20, 1974, shortly before the consent decree was submitted to the court. The meeting was attended by representative members of the FOP and presided over by Col. James D. Barger, Commissioner of the State Police. The transcript reveals the following dialogue:
COL. BARGER: During the course of that suit down there the FOP was brought into it and at a meeting a little over a week ago it was decided at a meeting with the Governor and the Attorney General that we would let Mr. Richard sit as co-counsel with [Assistant Attorney General] Ben Lerner to represent the Pennsylvania State Police. And so, I think you ought to know this at that time, I took it on myself to tell Mr. Richard that we, the State Police, would pick up the tab for his counseling down there but I have been told by the Attorney General that we will not. So, that's held in abeyance. I don't know whether - did you have an opportunity to see the Attorney General today, Mr. Richard? MR. RICHARD: Yes. I spoke to the Attorney General today and he has reinstated it - they will pick up the tab. (Applause) . . . .
COL. BARGER: I felt that we should because he was representing the Pennsylvania State Police and not specifically the FOP and I don't think anybody here - and this would probably amount to $100 out of each man's pocket. That's the reason I felt that the State Police should pay for it, and I think we could probably get it out of our budget after its [ sic ] all over.
Richard then took the floor and explained his participation in the negotiation of the proposed consent decree and the reasons why he favored each feature of it, including the four provisions now challenged by the intervenors. He also described the case of De Funis v. Odegaard, 416 U.S. 312, 40 L. Ed. 2d 164, 94 S. Ct. 1704 (1974), the "reverse discrimination" challenge then pending before the Supreme Court. He continued:
When we filed the motion to intervene in your behalf, the court didn't allow it. They just put it aside. Therefore, technically, you, the individual men, are not parties to this suit. We haven't given up your individual rights. And, it may be depending on the decision of the De Funis case and the language that is what they base their decision on, it may be that what you say is so, that this may as applied here be reverse discrimination. I can't tell you now. Your rights have not been waived, but have been reserved. And, therefore, it may be in that situation that we may have a subsequent litigation if that becomes necessary.
I am in there now, as co-counsel for the State of Pennsylvania. My motion to intervene has not been allowed and I'm not going to let the Court let me in - if he wants me in now in that capacity, I'm not going to let him bring me in. I'm going to withdraw, so that you are not parties to it.
It is perfectly clear from this Exhibit that the FOP was seeking on behalf of its members the best of all possible worlds. Its counsel, paid by the Commonwealth, could supplant, or at least supplement, the Assistant Attorney General assigned to the case in negotiating the most favorable consent decree, while it preserved the option of subsequently mounting collateral attacks on the same decree. Richard explained the strategy in these words:
If this is done, this will be a Consent Decree. Now, this will not affect the rights of any individual man to bring a suit as DeFunis did, if he feels that his rights have been taken away from him. But, there would be no appeal by any of the eight defendants, the Governor of Pennsylvania, State Police and so forth.
In colloquial terms, Richard was trying to whistle and chew meal at the same time: he was attempting to separate his representation of the Commonwealth from his ...