RIPPLE, Circuit Judge.
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.
A. The Underlying Litigation
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
B. Holding of the District Court
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).
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,
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.
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 libel
Although it questioned the continuing vitality of the rationale of The Three Friends,
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 Albiero
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.
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).
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.
Counsel informs us that, after the district court denied Mr. Culver's intervention in this case because his requests did not conform to the procedural requirements of the Civil Rules, the following activity occurred in the LEOCARD case. Judge Reynolds, in an order dated August 27, 1997, directed Mr. Culver to file a renewed motion for class certification "with appropriate supporting documents as required by Rule 23." On October 10, 1997, the district court denied Mr. Culver's motion to vacate the August 27, 1997, order and held further that "on the present record, . . . there is no certified class."
In December 1997, Mr. Culver moved to withdraw his individual claim in the LEOCARD case. He asserted that his individual claim was moot because he had obtained employment as a Chicago Police Officer. He then moved for judgment under Rule 54(b) of the Federal Rules of Civil Procedure and reserved his right to appeal the October 1997 order finding that there was no certified class. On December 12, 1997, the district court entered an order granting Mr. Culver's motion to withdraw his individual claim and dismissing all claims asserted by him. The district court declined to enter judgment pursuant to Rule 54(b) and noted that it had "given Culver an opportunity to file a renewed motion for class certification with the necessary supporting documents, which was not done." In his opening brief before us in this appeal, Mr. Culver states that he will appeal the issue of class certification in the LEOCARD case when final judgment is entered. Finally, on March 31, 1998, the district court (Adelman, J.), upon agreement of all remaining parties, dismissed the LEOCARD case. In that same order, the court granted LEOCARD's
motion to intervene in this case.
(c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought....
(a) Pleadings. There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.
Current rules make it impossible to carry forward the rationale of The Three Friends. Litigants no
longer "elect" when the decision takes effect. Civil Rule 58 specifies how, by whom, and when, a final judgment will be entered. Notices of appeal do not play any role in its operation. Appellate Rule 4(a) makes it clear that a prejudgment notice of appeal does not halt proceedings in the district court and make "final" whatever has been accomplished so far, or surrender the opportunity to persuade the district court to reconsider; to the contrary, a premature notice of appeal is suspended while the district court finishes the matters at hand.
Albiero v. City of Kankakee, 122 F.3d 417, 420 (7th Cir.1997).