*fn1,The opinion of the court was delivered by: Easterbrook, Chief Judge.,ARTHUR L. LEWIS, JR., ET AL., PLAINTIFFS-APPELLEES, v. CITY OF CHICAGO, ILLINOIS, DEFENDANT-APPELLEE. APPEAL OF: TERRENCE C. BUTLER, EUGENE PAYLOR, ANTHONY ROSS, AND GERARD D. MINNIFIELD" />

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Arthur L. Lewis, Jr., et al v. City of Chicago

December 17, 2012 *fn1

ARTHUR L. LEWIS, JR., ET AL., PLAINTIFFS-APPELLEES,
v.
CITY OF CHICAGO, ILLINOIS, DEFENDANT-APPELLEE. APPEAL OF: TERRENCE C. BUTLER, EUGENE PAYLOR, ANTHONY ROSS, AND GERARD D. MINNIFIELD



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 C 5596 -- Joan B. Gottschall, Judge.

The opinion of the court was delivered by: Easterbrook, Chief Judge.

ARGUED NOVEMBER 29, 2012

Before EASTERBROOK, Chief Judge, and POSNER and MANION, Circuit Judges.

After this suit had been pend- ing for 14 years--indeed, after final judgment had been en- tered--four persons sought to intervene in order to upset the judgment and improve their own fortunes at the expense of other members of the class. The district court deemed the proposed intervention untimely and denied the motion. Ap- pellate review is deferential, see Sokaogon Chippewa Commu- nity v. Babbitt, 214 F.3d 941, 945 (7th Cir. 2000), and we con- clude that the district judge did not abuse her discretion in denying the would-be intervenors' motion. (To simplify ex- position, we call them "the intervenors" and omit qualifica- tions such as "would-be" or "aspiring.")

The litigation arises from a civil-service examination ad- ministered in July 1995 to persons who wanted to join the Chicago Fire Department. The City concluded that scores of 89 to 100 signify high qualification and hired initially from that group. Only in 2002 did it begin to hire (at random) from the "qualified" group who had scored 65 to 88. Hiring from that pool continued until 2006, when the City adminis- tered a new examination. Plaintiffs in this suit contend that drawing a line at 89 had an unjustified disparate effect on black applicants and thus violated Title VII of the Civil Rights Act of 1964.

A procedural dispute reached this court in 2000. In re Lewis, 212 F.3d 980 (7th Cir. 2000). After holding a bench trial in 2006, the district court concluded that the City had not proved the justification it advanced for its selection method. A final decision in 2007 provided relief to applicants in the "qualified" pool who had not been hired by the Fire De- partment. Lewis v. Chicago, 2007 U.S. Dist. LEXIS 24378 (N.D. Ill. Mar. 20, 2007). We reversed after concluding that the charge of discrimination had been filed with the EEOC after the statute of limitations expired, because plaintiffs' claim accrued when applicants in the qualified pool were told that the were unlikely to be hired. Lewis v. Chicago, 528 F.3d 488 (7th Cir. 2008). The Supreme Court disagreed, holding that a new claim accrued with each use of the list to hire another group of firefighters. Lewis v. Chicago, 130 S. Ct. 2191 (2010).

On remand, we held that the charge of discrimination was untimely with respect to the first group of hires but timely with respect to later hires. Lewis v. Chicago, 643 F.3d 201 (7th Cir. 2011). Implementing that decision, the district court re- vised the judgment to reduce from 132 to 111 the number of class members who must be hired; under this judgment oth- er class members who have not been hired receive damages. Neither the plaintiffs nor the City of Chicago appealed that decision.

The four intervenors have been working as firefighters since 2005. Each was selected at random from the "qualified" pool, passed the physical and completed the required train- ing course, and entered on duty. Each was aware of the liti- gation no later than 2005. Some of the intervenors attended the oral argument at the Supreme Court in 2010 and the oral argument in this court on remand in 2011. Each contends that he thought, until recently, that he would receive extra seniority, pension credits, or back pay in this litigation. Each contends that he is entitled to intervene, even after judg- ment, because not until later did he learn that class counsel had decided not to seek any relief on behalf of persons hired from the "qualified" pool.

The district judge thought the motion to intervene un- timely because the intervenors knew (or readily could have learned) in 2007 that they were no longer members of the class. As the district judge saw things, the process used in spring 2007 to compile a database of persons eligible for re- lief--a database that excluded anyone who had been hired by the Fire Department--amounted to a change in the class definition. Only persons never hired by the Fire Department received any benefit from the judgment entered in April 2007. An attempt to intervene five years later is much too late, the judge thought. See, e.g., People Who Care v. Board of Education, 68 F.3d 172, 175 (7th Cir. 1995) (people must inter- vene promptly after they learn, or readily could have learned, that developments in the litigation jeopardize their interests).

If the class definition had been modified in 2007, then the right question to ask would concern the statute of limita- tions, not the discretionary standard for timely intervention. Once a suit is filed as a class action, the statute of limitations is tolled until the district judge declines to certify a class, or certifies a class that excludes particular persons. A decision against certification, or a limited certification, ends the toll- ing and the time resumes running. See Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983); American Pipe & Construc- tion Co. v. Utah, 414 U.S. 538 (1974). Resumption is automat- ic; neither American Pipe nor Crown, Cork & Seal suggested that it depends on anyone's knowledge that class certifica- tion had been denied or the scope of a class limited. The Su- preme Court held that in this case a new claim accrues with each use of a device that creates a disparate impact. The last such use was in 2001; after that, all hires from the 1995 list were made in a fashion that the class concedes is proper. So if the tolling effect of the original class action ended in 2007, with respect to anyone excluded from the class because al- ready hired as a firefighter, then the intervenors (and anyone similarly situated) had at most 300 days to complain to the EEOC. Yet none of the intervenors has ever filed a charge of discrimination with the EEOC, and none acted in any other fashion within 300 days of the judgment entered in April 2007. Once the statute of limitations expired on the interve- nors' claims, there would be no point to intervention, be- cause none of them would have a viable claim for relief.

Yet although the district judge stated that the class had been modified in 2007, we cannot find an order modifying the class definition. More than that, we cannot find an order defining the class in the first place. Lewis and the other rep- resentative plaintiffs moved in 1999 for the certification of a class. The district court entered a one-sentence order grant- ing that motion. Despite the explicit instructions of Fed. R. Civ. P. 23(c)(1)(B), the order did not define the class. Rule 23(c)(1)(B) reads: "An order that certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g)." The district judge did not do any of these things--not in 1999, not ever. (The language we have quoted is from the current version of Rule 23(c)(1)(B), which was promulgated in 2003. The ver- sion of Rule 23 in force in 1999 required the court to define the class, though not to appoint class counsel.)

The plaintiffs contend that the district court must have certified this class in 1999:

[A]ll African American firefighter applicants who took and passed the 1995 written firefighter examination who received a score of 65 or greater but less than 89, but who, as a result of their test scores, have been and continue to be denied the oppor- tunity to take the physical performance test and to be hired as firefighters.

If that is the class, then the four intervenors were members in 1999 but dropped out in 2005 when they were hired as fire- fighters. The language we have quoted appears in the 1999 motion (though not in any order of the district court). But plaintiffs' 1999 motion contains other definitions, including: "all African American firefighter applicants who received scores of 65 or greater but less than 89 on the 1995 written exam". Class counsel put a variant of the latter definition on their web site and have used it ...


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