Appeal from the United States District Court for the Central District of California. D.C. No. CV-94-00083-CBM. Consuelo B. Marshall, District Judge, Presiding.
Before: Stephen Reinhardt, Alex Kozinski, and Michael Daly Hawkins, Circuit Judges. Opinion by Judge Reinhardt.
REINHARDT, Circuit Judge:
Appellants, the State of California, the California Highway Patrol,*fn1 the California Business, Transportation and Housing Agency, Maurice Hannigan, Commissioner of the California Highway Patrol, and Edward Gomez, collectively referred to as "defendants," appeal from the district court's issuance of an interim injunction in favor of the plaintiff, Jeff D. Paige, and the class he represents (the plaintiffs), and from the district court's orders certifying a class, denying the defendants partial summary judgment, and granting partial summary judgment to the plaintiffs. The district court's orders were issued in an action Paige brought alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e. We conclude that we have jurisdiction over the appeals from the class certification and the partial summary judgment order in favor of the plaintiffs, as well as over the appeal from the interim injunction. While in this opinion we affirm the district court's decision to exercise jurisdiction over the class claims - because those claims do not exceed the scope of the charges filed by plaintiff Paige with the EEOC and the California Department of Fair Employment and Housing - we resolve the questions regarding the merits of the class certification order, as well as the merits of the summary judgment order and the interim relief order in a separate memorandum Disposition filed herewith.
On May 19, 1993, Paige, an African-American lieutenant in the California Highway Patrol, filed a discrimination charge with the California Department of Fair Employment and Housing (DFEH) alleging that a promotional examination was biased, unrelated to the job in question and resulted in discrimination on the basis of race. Several days later, on May 28, he filed a similar charge with the Equal Employment Opportunity Commission (EEOC). On the same date on which Paige filed his charge with the EEOC, the DFEH referred his earlier charge to the federal agency. The DFEH served the California Highway Patrol with written notice of the referral. On January 5, 1994, Paige filed a class action in the district court against the defendants, alleging violations of Title VII. The complaint alleged both disparate impact and disparate treatment in the California Highway Patrol's promotion process.*fn2
On July 12, 1994, after considering the pleadings and arguments of the parties, the district court certified a class consisting of "all past, present and future non-white sworn employees in the California Highway Patrol who have been, are, or will be discriminated against with regard to the terms and conditions of their employment because of their race, including the denial of job assignments, transfers, promotions and other benefits of an effective affirmative action program as the result of the operation of current practices."
Both sides moved for partial summary judgment on the basis of statistical evidence submitted by their respective experts. On March 29, 1995, the district court, relying on the plaintiffs' statistics, found that the plaintiffs had established that the "CHP's promotion policy is a continuing violation of Title VII." Accordingly, the district court denied the defendants' motion for partial summary judgment and granted partial summary judgment to the plaintiffs on the disparate impact claim.
Following the rulings, the district court appointed a magistrate Judge to serve as special master. After extensive briefing and oral argument, the special master issued a report and recommendation for interim relief. He proposed a system of provisional appointments for all promotions until the district court entered a permanent injunction. On November 3, 1995, the district court adopted the special master's recommendation, and ordered that, pending issuance of a permanent injunction, promotions be awarded at rates equal to or exceeding an external availability measure.*fn3
On November 22, 1995, the defendants filed an appeal from the district court's grant of interim injunctive relief, as well as the district court's class certification and summary judgment orders.*fn4
In this opinion, we address whether: (1) we have jurisdiction to review the district court's grant of interim relief; (2) we have jurisdiction to consider the summary judgment and class certification orders; and, (3) the district court properly exercised jurisdiction over the plaintiffs' class claims.
Defendants appeal pursuant to 28 U.S.C. § 1292. That statute grants this court jurisdiction over "interlocutory orders of the district courts . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where direct review may be had in the Supreme Court." 28 U.S.C. § 1292(a)(1) (1995). The defendants appeal of the district court's order granting interim relief falls squarely within the scope of § 1292(a)(1). Nonetheless, relying on Carson v. American Brands, Inc., 450 U.S. 79, 67 L. Ed. 2d 59, 101 S. Ct. 993 (1981) and Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 57 L. Ed. 2d 364, 98 S. Ct. 2451 ...