### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 12

- 2845

A RTHUR L. L EWIS , J R ., et al

., Plaintiffs

- Appellees

,

v.

C ITY OF C HICAGO , I LLINOIS , Defendant

- Appellee

. Appeal of:

T ERRENCE C. B UTLER , E UGENE P AYLOR , A NTHONY R OSS , and G ERARD D. M INNIFIELD

____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 98 C 5596

— Joan B. Gottschall

, Judge

.

____________________

A RGUED N OVEMBER 29, 2012

— D ECIDED D ECEMBER 17, 2012 *

____________________

Before E ASTERBROOK , Chief Judge , and P OSNER and M ANION , Circuit Judges

. E ASTERBROOK , Chief Judge

. After this suit had been pen ding for 14 years

— indeed, after final judgment had been e ntered

— four persons sought to intervene in order to upset the

* This opinion is being issued in typescript. A printed version will follow.No. 12

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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 mo tion. A ppellate review is defer ential, see Sokaogo n Chippewa Comm unity v. Babbitt , 214 F.3d 941, 945 (7th Cir. 2000) , and we co nclude that the district judge did not abuse her discretion in denying the would

- be intervenors’ motion. (To simplify e xposition, we call them “ the intervenors ” and omit qualific ations such as “would

- be” or “aspiring.” ) The litigation arises from a civil

- service examination a dministered in July 1995 to persons who wanted to join the Chicago Fire Department. The City concluded th at scores of 89 to 100 signify high qualification and hired initial ly 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 admini stered a new exam ination. Plaintiffs in th is suit contend that drawing a line at 89 had a n unjustified disparate effect on black applicants and thus violated Title VII of the Civil Rig hts 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 distri ct 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 F ire D epartment. Lewis v. Chicago , 2007 U.S. Dist. L EXIS 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).No. 12

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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 2 01 (7th Cir. 2011). Implementing that decision, the district court r evised the judgment to reduce from 132 to 111 the number of class members who must be hired ; under this judgment ot her class members w ho have not been hired receive damages. Neither the pl aintiffs 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 trai ning course, and entered o n duty. Each was aware of the lit igation 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, un til 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 jud gment, 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 u ntimely because the intervenors knew (or readi ly could have learned) in 2007 that they were no longer members of the class. As the district judge saw things, the process u sed in spring 2007 to compile a database of persons eligible for r elief

— a database that excluded anyone who had been hired by the Fire Department

— amounted to a change in the class definition. Onl y persons never hired by the Fi re Department received any ben efit 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 inte rvene promptly after they learn, or readily could haveNo. 12

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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 limit ations, 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 ce rtification, ends the tol ling and the time resumes running. See Crown

, Cork & Seal Co. v. Parker , 462 U.S. 345 (1983); American Pipe & Constru ction Co. v. Utah , 414 U.S. 538 (1974)

. Resumption is automa tic; neither American Pipe nor Crown, Cork & Seal suggested that it depends on anyone’s knowledge that class certific ation had been de nied or the scope of a class limited . The S upreme 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 a lready hired a s 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 interv enors’ claims, there would be no point to intervention, b ecause none of t hem would have a viable claim for relief. Yet although the district judge stated that the clas s 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 re presentative plaintiffs moved in 1999 for the certification of a class . The district court entered a one

- sentence order gran t-No. 12

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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 cl ass 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

— n ot in 1999, not ever

. (The language we have quoted is from the current version of Rule 23(c)(1)(B), which wa s promulgated in 2003. The ve rsion 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 oppo rtunity 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 t hey were hired as fir efighters

. The language we have quoted appears in the 1999 motion (t hough 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 pu t a variant of the latter definition on their web site and have used it frequently

— including, a ccording to the intervenors, when assuring each of them that he continued to be a member of the class after being hired in 2005.

Class counsel have used other de finitions over the years, and the district judge likewise has used varying definitions in opinions issued in 2005, 2007, 2011, and 2012. The interv eno rs have cataloged 13 different potential definitions of the class

— all used somewhere by the judge or class counsel, butNo. 12

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none appearing in a class

- certification order. T he class has never been formally defined, and in the absence of an orig inal definition it is not possible to pin down the date of mod ification (if there was one). The only safe way to proceed is to assume that the four intervenors have been members of the class since 1999 and remain members today. They therefore do not encounter any problem under the statute of limit ations, though a question about the timeliness of the motion for leave to interve ne remains. The intervenors acknowledge knowing about the litig ation no later than 2005. In 2007 the district court devised a remedy that gave them (and other persons hired between 2002 a nd 2006) no relief. The intervenors say that no one told them about this

— but then no one had to. The district court invoked Rule 23(b)(2), which covers situations in which “ the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injun ctive relief or corresponding declaratory relief is appropriate respecting the class as a whole ”. Rule 23 (b)(2) does not r equire notice , because no one can opt out of a (b)(2) class

. Nor does Rule 23 require no tice when a class action is re solved on the merits. Although members of a (b)(3) class must be notified of a settlement, see Rule 23(e)(4), no one is entitled to notice of the final decisio n in a suit fought to the finish , as this one was. Members of a (b)(2) class can monitor the liti gation, and these intervenors did just that when attending oral arg uments in the Supreme Court and this court. They could have asked to see the judgments entered in 2007 and 2 011 but did not. During the argument held in this court in 2011, counsel
represen ting the class stated that persons who had been hired between 2002 and 2006 would not receive any re lief; that did not prompt the intervenors to act , and the district judge was entitled to conclude that persons who had let allNo. 12

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of these opportunities slide by were not en titled to intervene in 2012

. The intervenors blame their inaction on class counsel. They say that they were to ld, by counsel’s web site as well as direct communications , that they remained members of the class and could look forward to a bene fit

. (Class counsel r espond that three of the four nonetheless knew, well before June 2012, when they sought to intervene, that they would not share in the remedy.) Lest our conclusion that the r equest for intervention came too late set the stage for malpr a ctice litigation against class counsel, we add that intervention would have been pointless because class members hired b etween 2002 and 2006 would not have received relief no ma tter what they, and the c lass counsel, did or said. The goal of this litigatio n was to assist applicants injured by the disparate effect of the “well qualified” cutoff at 89. In 2001, when the pool of persons wh o scored between 89 and 100 was exhausted, the violation of Title VII ceased, and the City’s hiring process complied with T itle VII. Although some persons hired from the “qualified” pool between 2002 and 2006 might have been hired ear lier had the City made offers

, beginning in 1996, to the entire pool of persons who scored 65 or above, the random nature of the process makes it i mpossible to know who would ha ve gained as a result

— and also makes it sensible for the district judge to conclude that class members who took a bird in hand surrendered their opportunity to share in a recovery that, as of 2005, remained uncertain. T he Ci ty vigorously contested liability. Trial did not occur until 2006, the initial judgment was entered in 2007 , and in 2008 we held that the class loses outright. It took a decision of the Supreme Court in 2010 to establish an ent itlement to relief.

A pplicant s hired between 2002 and 2006 suffered at most a delay in employment , whil e those never hired suffe red a greater injury. The intervenors have been on the payrollNo. 12

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since 2005, re ceiving salary and accruing seniority; the other class members lack those benefits. Our decision in 2011 led the district judge to find that 111 persons who had not yet been hired are entitled to jobs that would commence in 2011 or 2012, with seniority bac k to 1999 (the mid point of the time when the City was in violation of Title VII) . Giving extra

se n iority to persons who had been receiving the benefits of employment since 2005 would make these 111 (and all other firefighters hired since 1999 ) worse off. S imilarly, allocating back pay to the persons hired between 2002 and 2006 would injure other members of the class

, because the pot available for distribution is limited . The co urt calculated how many African American applicants would have been hired, and wh en, had selections been made at random from the outset, and compared that with the number ac tually hired. This ca lculation determined how many extra offers of employment the Fire Department must make and how much back pay
goes to the class as a whole. A ju dge properly could co nclude that the remedy should be concentrated on the never

hired applicants rather than be shared with those who had been enjoying salary and accruing seniority, and who might not have been injured at all. To repeat: given random sele ction
, the intervenors might have been hired in 2005 or later, or not hired at all (the fate of more than 6,000 other class members) , had the City chosen from the pool of those who scored 65 and over begin ning in 1996 rathe r than 2001, and thus never violat ed Title VII.

A FFIRMED