United States of America, Plaintiff-appellee, v. City of Milwaukee, Arthur Jones, Chief of Police, City Ofmilwaukee, Lawrence Gardner, Chief, City Ofmilwaukee Fire Department, et al.,defendants-appellees,appeal Of: Scott Culver, Proposed Intervenor, 144 F.3d 524 (7th Cir. 1998)

In this appeal, Scott Culver seeks review of the decision of the district court denying his motion to intervene. The underlying action was commenced by the United States in 1974 against the City of Milwaukee and it alleged that the City had discriminated against African Americans and women with respect to recruitment, hiring and promotion in the City's police force. Mr. Culver also appeals the district court's order modifying, temporarily, the hiring orders that it previously had entered on July 25, 1975, October 9, 1975, and September 16, 1976.

We dismiss the appeal for want of appellate jurisdiction. Because the district court has not made a final decision on the matter of Mr. Culver's intervention, we are without jurisdiction to hear his appeal. See 28 U.S.C. § 1291.¹  Furthermore, because, at this juncture, Mr. Culver is neither a party nor an intervenor, he cannot appeal the district court's underlying hiring order.² 

* BACKGROUND

As we have noted already, the United States commenced this action in 1974. The government alleged that the City of Milwaukee engaged in discriminatory policies and practices against African Americans and women with respect to recruitment, hiring and promotion in its police department. On July 25, 1975, October 9, 1975, and September 16, 1976, the district court entered orders regarding the City's employment practices ("old hiring orders"). These orders established hiring objectives for minorities and women. The old hiring orders further provided that they would remain in effect until further order of the court.

On September 27, 1996, twenty years after the last hiring order was entered, the United States filed a motion to modify the old hiring orders. It noted that there had been significant changes with respect to the law and to the facts since the earlier orders were entered. The City agreed that the old hiring orders should be modified but proposed an order that was slightly different from that proffered by the United States. In July 1997, while the district court had these modifications under advisement, the City had an immediate need to hire new police officers. The United States and the City therefore jointly moved for a temporary order that would vacate the old hiring orders and permit the City to hire a number of new officers. On July 29, 1997, the district court granted this joint motion and entered a temporary hiring order that vacated the old hiring orders. This order allowed the City to hire new police officers and established temporary hiring objectives tied to the percentage of women and minorities in the relevant labor market.

In October 1996, shortly after the United States filed its motion to modify the old hiring orders, Mr. Culver, then a class representative in a parallel action, moved to intervene. He asserted that, as a white male who had sought and who would seek employment with the Milwaukee Police Department, he has a direct and substantial interest in the district court's decision on the joint motion for temporary modification.³ 

The district court denied Mr. Culver's motion to intervene in this action. The court noted, specifically, that the denial was without prejudice and that its action was based on Mr. Culver's failure to comply with Federal Rule of Civil Procedure 24(c).⁴  The court held that Rule 24(c) requires that a motion to intervene be accompanied by a pleading within the meaning of Federal Rule of Civil Procedure 7(a).⁵  The court then invited Mr. Culver to "file a motion to intervene which complies with Rules 5, 7, and 24 of the Federal Rules of Civil Procedure." R. 33 at 2.

II

DISCUSSION

Mr. Culver submits that the district court erred in its denial of his motion to intervene. In his view, the motion was in compliance with Rule 24(c). He claims that, along with his motion to intervene, he filed a motion to strike the parties' motions to modify the old hiring orders as well as a supporting memoranda. In those submissions, Mr. Culver urged that no orders should be entered in this case because this case was "closed" and because the parties' proposed quota hiring was illegal. Noting that the requirements for a proposed pleading under Rule 24 should not be hypertechnical, see Piambino v. Bailey, 757 F.2d 1112, 1121 (11th Cir. 1985),⁶  cert. denied, 476 U.S. 1169, 106 S. Ct. 2889, 90 L. Ed. 2d 976 (1986), Mr. Culver argues that these pleadings were sufficient to satisfy the requirements of Rule 24(c).

Mr. Culver further argues that he has satisfied the requirements for intervention under Rule 24. See B.H. by Pierce v. Murphy, 984 F.2d 196, 200 (7th Cir.) (setting forth four requirements for intervention: timely application, an interest relating to the subject matter of the litigation, potential impairment of that interest by disposition of the action and lack of adequate representation of the interest by the existing parties), cert. denied, 508 U.S. 960, 113 S. Ct. 2930, 124 L. Ed. 2d 680 (1993). In his view, he remains the class representative for white male applicants in LEOCARD and therefore has a direct and substantial interest in the issues involved in the current litigation--namely, the right of the class members to be afforded equal opportunity for employment without regard to race and sex. In addition, he submits, white male applicants are not adequately represented in this litigation because both of the existing parties are seeking to perpetuate race- and sex-based hiring quotas.

We need not, indeed we cannot, resolve all of the issues that Mr. Culver would like us to resolve at this time. As this case comes to us, we can address only a single and threshold question: Whether the district court's order denying Mr. Culver's intervention can now be reviewed by this court. Because we believe that the decision of the district court was not a final decision, we lack the authority to review it.

We have noted that an order denying a party's motion to intervene is not "conventionally final" because it does not "wind up the suit in the district court." See Williams v. Katz, 23 F.3d 190, 191 (7th Cir. 1994). It is well established, however, that a party whose motion to intervene has been denied may take an immediate appeal. See Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 524, 67 S. Ct. 1387, 91 L. Ed. 1646 (1947). In fact, a proposed intervenor must appeal from the denial of his motion to intervene within 30 days of that denial and may not await final judgment in the underlying action. See SEC v. Wozniak, 33 F.3d 13, 14-15 (7th Cir. 1994). This "special rule" of finality is based on the fact that the proposed intervenor, having been denied the status of a party, will never be able to appeal in the underlying action unless the order denying intervention is first reversed. See Brotherhood of R.R. Trainmen, 331 U.S. at 524, 67 S. Ct. 1387; Williams, 23 F.3d at 191. In other words, despite the fact that an order denying intervention is not final with respect to all parties and all claims, the order is final with respect to the proposed intervenor. Nonetheless, in order to be immediately appealable, an order denying a motion to intervene must be truly final with respect to the proposed intervenor--that is, the order must rule definitively on the party's participation in the litigation before the district court.

In this case, the district court's denial for failure to comply with the requirements of Rule 24 was, explicitly, without prejudice.⁷  The district court plainly expressed its intent not to reach the merits of the motion to intervene until it was properly presented.⁸  This decision by the district court did not resolve definitively whether Mr. Culver ought to be allowed to intervene in this litigation and is therefore not a final decision within the meaning of 28 U.S.C. § 1291. See Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 594 n. 11 (7th Cir. 1993);⁹  see also J.I. Case Credit Corp. v. First Nat'l Bank, 991 F.2d 1272, 1275 (7th Cir. 1993) (stating that a dismissal without prejudice is generally not final and appealable). Indeed, the record establishes that the district court expressly held that Mr. Culver could refile his motion in compliance with Rule 24(c).¹⁰  See Principal Mut. Life Ins. Co. v. Cincinnati TV 64 Ltd. Partnership, 845 F.2d 674, 676 (7th Cir. 1988) (holding that an order dismissing without prejudice and expressly permitting refiling does not constitute a final decision). Moreover, there is no indication here that the district court was of the view that no refiling could cure the defect that it had noted in Mr. Culver's first submission. Cf. Bieneman v. City of Chicago, 838 F.2d 962, 963 (7th Cir. 1988) ("Bieneman's case has not ended, however, given the district court's express identification of this issue as one needing resolution."). Notably, at the time it denied Mr. Culver's motion, the district court also denied the motion of the Latino Police Officer's Association ("LPOA") to intervene. The court's reason for this denial was identical to the one stated in Mr. Culver's case--failure to comply with Rule 24(c). LPOA subsequently refiled its motion, accompanied by a pleading, and its motion to intervene was granted.

Although none of the parties suggested the possibility, we also have examined whether the district court's ruling ought to be considered "final" by analogy to the treatment accorded a so-called "conditional dismissal" of a complaint. In The Three Friends, 166 U.S. 1, 17 S. Ct. 495, 41 L. Ed. 897 (1897), an admiralty case, the district court had entered an order specifying that the libel¹¹  was to stand dismissed unless amended within 10 days. The plaintiff, however, did not wait for the entry of final judgment and appealed the district court's order prior to the expiration of the 10 days. The defendant contended that the decision was nonappealable due to the lack of amendment or judgment. The Court rejected this argument and stated that the appeal itself "was an election to waive the right to amend and the decree of dismissal took effect immediately." Id. at 49, 17 S. Ct. 495.

Although it questioned the continuing vitality of the rationale of The Three Friends,¹²  this court recently allowed an appeal under similar circumstances. See Albiero v. City of Kankakee, 122 F.3d 417, 418-20 (7th Cir. 1997). In Albiero, the district court dismissed Albiero's complaint with prejudice for failure to state a claim, but allowed him 21 days to file a new complaint. Like the plaintiff in The Three Friends, Albiero did not wait for the entry of final judgment, but filed a notice of appeal on the 15th day. Compounding the confusion, the district court refused the defendants' request to enter final judgment due to the erroneous belief that the notice of appeal prevented it from acting. This court began by noting that Albiero could have appealed after the 21st day despite the lack of a proper judgment. See Otis v. City of Chicago, 29 F.3d 1159 (7th Cir. 1994) (en banc) (holding that conditional order of dismissal becomes final after the time to satisfy the condition has expired). Accordingly, on day 22, as long as Albiero had not yet filed a new complaint, the judgment would have become final notwithstanding the lack of a formal judgment. Thus, the only question remaining was whether Albiero's premature notice of appeal deprived the court of jurisdiction. This question did not detain the court long. Under Federal Rule of Appellate Procedure 4(a) (2), a notice of appeal filed after the court announces its decision but before final judgment is treated as filed on the date final judgment is entered. Therefore, the court treated the notice of appeal filed on day 15 as filed on day 22 and accepted jurisdiction over the appeal.

The circumstances of this case are substantially different from those in The Three Friends and Albiero. In those cases, the district court ruled on the merits of the plaintiff's offered pleadings and, finding the pleadings insufficient to state a claim upon which relief could be granted, announced its intention to dismiss the action if the plaintiff did not amend its pleadings within a set time frame. Therefore, in those cases, the district court stated an intent to enter a final judgment on a set date unless the plaintiff filed a new complaint prior to that date. See Albiero, 122 F.3d at 420. By contrast, in this case, the district court, going about the difficult task of managing complex litigation, announced no such intent with respect to Mr. Culver's motion to intervene. Instead, the district court's order merely stated, in essence, that it would not consider Mr. Culver's motion until it conformed to the procedural requirements of Rule 24(c). Given the history of this litigation and of Mr. Culver's participation in the related case, the district court's insistence that Mr. Culver "square corners" in his attempt to intervene in a case between the United States and the City of Milwaukee was a practical approach to case management. It is not a definitive adjudication of Mr. Culver's right to intervene and Mr. Culver cannot unilaterally transform it into such an order. Indeed, as noted earlier, this court has held that a decision denying intervention on strictly procedural grounds is not a final judgment when the district court expressly contemplates that the putative intervenor subsequently will file a procedurally correct motion. See Retired Chicago Police Ass'n, 7 F.3d at 594 n. 11 (7th Cir. 1993). Accordingly, this case is distinguishable from The Three Friends and Albiero¹³  and is controlled by our prior holding in Retired Chicago Police Association.

Therefore, the district court's order denying Mr. Culver's motion to intervene without prejudice is not a final judgment and we are without jurisdiction to hear Mr. Culver's appeal. In reaching this result, we emphasize that, in accord with this court's prior precedent, see supra note 7, we do not accord talismanic importance to the fact that the district court denied Mr. Culver's motion to intervene "without prejudice." Instead, we look to the totality of the circumstances in determining that the district court's order in this particular case is not final.¹⁴ 

Because Mr. Culver's motion for intervention was denied, he is not a party to this case and cannot appeal at this time the district court's temporary order modifying the old hiring orders. We have recognized repeatedly that, until a movant for intervention is made a party to an action, it cannot appeal any orders entered in the case other than an order denying intervention. See Retired Chicago Police Ass'n, 7 F.3d at 596 n. 14; United States v. City of Chicago, 908 F.2d 197, 200 (7th Cir. 1990), cert. denied, 498 U.S. 1067, 111 S. Ct. 783, 112 L. Ed. 2d 846 (1991).

Conclusion

The district court entered an order that is not final and, indeed, anticipates, as a practical matter, further consideration by the district court of the very issue that Mr. Culver asks us to resolve now. Therefore, there is no final decision for our review. Accordingly, the appeal is dismissed for want of appellate jurisdiction.

APPEAL DISMISSED.