In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 12-2845

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.

____________________

ARGUED NOVEMBER 29, 2012 — DECIDED DECEMBER 17, 2012*

____________________

Before EASTERBROOK, Chief Judge, and POSNER and 

MANION, Circuit Judges.

EASTERBROOK, Chief Judge. After this suit had been pending for 14 years—indeed, after final judgment had been entered—four persons sought to intervene in order to upset the 

 * This opinion is being issued in typescript. A printed version will 

follow.
No. 12-2845 Page 2

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. Appellate review is deferential, see Sokaogon Chippewa Community v. Babbitt, 214 F.3d 941, 945 (7th Cir. 2000), and we conclude that the district judge did not abuse her discretion in 

denying the would-be intervenors’ motion. (To simplify exposition, we call them “the intervenors” and omit qualifications such as “would-be” or “aspiring.”)

The litigation arises from a civil-service examination administered 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 administered 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 Department. 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). 
No. 12-2845 Page 3

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 revised the judgment to reduce from 132 to 111 the number of 

class members who must be hired; under this judgment other 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 training course, and entered on duty. Each was aware of the litigation 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 judgment, 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 untimely 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 relief—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 intervene promptly after they learn, or readily could have 
No. 12-2845 Page 4

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 limitations, 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 tolling and the time resumes running. See Crown, Cork & Seal 

Co. v. Parker, 462 U.S. 345 (1983); American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974). Resumption is automatic; neither American Pipe nor Crown, Cork & Seal suggested 

that it depends on anyone’s knowledge that class certification had been denied or the scope of a class limited. The Supreme 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 already 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 intervenors’ claims, there would be no point to intervention, because 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 representative plaintiffs moved in 1999 for the certification of a 

class. The district court entered a one-sentence order grant-
No. 12-2845 Page 5

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 version 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 opportunity 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 firefighters. 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 frequently—including, according 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 definitions over the years, 

and the district judge likewise has used varying definitions 

in opinions issued in 2005, 2007, 2011, and 2012. The intervenors have cataloged 13 different potential definitions of the 

class—all used somewhere by the judge or class counsel, but 
No. 12-2845 Page 6

none appearing in a class-certification order. The class has 

never been formally defined, and in the absence of an original definition it is not possible to pin down the date of modification (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 limitations, though a question about the timeliness of the motion 

for leave to intervene remains.

The intervenors acknowledge knowing about the litigation no later than 2005. In 2007 the district court devised a 

remedy that gave them (and other persons hired between 

2002 and 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 injunctive relief or corresponding declaratory relief is appropriate 

respecting the class as a whole”. Rule 23(b)(2) does not require notice, because no one can opt out of a (b)(2) class. Nor 

does Rule 23 require notice when a class action is resolved 

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 decision in a suit fought to the finish, as 

this one was.

Members of a (b)(2) class can monitor the litigation, and 

these intervenors did just that when attending oral arguments in the Supreme Court and this court. They could have 

asked to see the judgments entered in 2007 and 2011 but did 

not. During the argument held in this court in 2011, counsel 

representing the class stated that persons who had been 

hired between 2002 and 2006 would not receive any relief; 

that did not prompt the intervenors to act, and the district 

judge was entitled to conclude that persons who had let all 
No. 12-2845 Page 7

of these opportunities slide by were not entitled to intervene 

in 2012.

The intervenors blame their inaction on class counsel. 

They say that they were told, by counsel’s web site as well as 

direct communications, that they remained members of the 

class and could look forward to a benefit. (Class counsel respond 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 request for intervention came too late set the stage for malpractice litigation against class counsel, we add that intervention 

would have been pointless because class members hired between 2002 and 2006 would not have received relief no matter what they, and the class counsel, did or said.

The goal of this litigation was to assist applicants injured 

by the disparate effect of the “well qualified” cutoff at 89. In

2001, when the pool of persons who scored between 89 and 

100 was exhausted, the violation of Title VII ceased, and the 

City’s hiring process complied with Title VII. Although some 

persons hired from the “qualified” pool between 2002 and 

2006 might have been hired earlier 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 impossible to know who would have 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. The City 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 entitlement to relief.

Applicants hired between 2002 and 2006 suffered at most 

a delay in employment, while those never hired suffered a 

greater injury. The intervenors have been on the payroll 
No. 12-2845 Page 8

since 2005, receiving 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 back to 1999 (the midpoint of the time 

when the City was in violation of Title VII). Giving extra 

seniority 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. Similarly, 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 court calculated how many 

African American applicants would have been hired, and 

when, had selections been made at random from the outset, 

and compared that with the number actually hired. This calculation 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 judge properly could conclude that the remedy should be concentrated on the neverhired 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 selection, 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 beginning in 1996 rather than 2001, and 

thus never violated Title VII.

AFFIRMED