                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS
                                                                              FILED
                            FOR THE ELEVENTH CIRCUIT                 U.S. COURT OF APPEALS
                             ________________________                  ELEVENTH CIRCUIT
                                                                           JUNE 3,, 2004
                                                                        THOMAS K. KAHN
                                    No. 03-13128                             CLERK
                              ________________________

                          D.C. Docket No. 94-06932-CV-ASG

ARLENE M. STONE,
et al.,
                                                     Plaintiffs-Appellants,

                                            versus

FIRST UNION CORPORATION, Charlotte, N.C.,
FIRST UNION CORPORATION OF FLORIDA,
FIRST UNION NATIONAL BANK OF FLORIDA,
WACHOVIA CORPORATION,

                                                   Defendants-Appellees.

                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            _________________________
                                   (JUNE 3, 2004)


Before BIRCH, KRAVITCH and OAKES*, Circuit Judges.

KRAVITCH, Circuit Judge:

       *
        Honorable James L. Oakes, United States Circuit Judge for the Second Circuit, sitting
by designation.
       Former bank employees attempted to bring a class action against First Union

National Bank of Florida (“First Union”) for age discrimination.1 The district court

initially certified the plaintiffs as an opt-in class, but later decertified the class. The

plaintiffs then sought to intervene in the named plaintiff’s individual suit against First

Union. The district court denied the motion to intervene and the plaintiffs now

appeal. We reverse.



       I. Facts and Procedural History

       Between 1991 and 1994, First Union acquired several banks, including

Southwest Bank of Florida, the bank that employed Arlene Stone as a branch

manager. After the acquisition in the fall of 1991, Stone was demoted to assistant

manager at another branch and informed that her position would be eliminated. She

applied for other positions with First Union but was not hired. Her employment was

terminated in October 1992. Stone sued First Union for age discrimination, alleging

that First Union instituted a plan whereby older employees were demoted or subject




       1
         First Union National Bank of Florida is wholly owned by First Union Corporation
through its subsidiary, First Union Corporation of Florida. The plaintiffs amended their
complaint to add Wachovia Corporation as a defendant after it merged with First Union
Corporation in September 2001.

                                              2
to other adverse employment actions.2 Stone sought class action status for other First

Union employees, and the district court granted a preliminary and conditional class

certification, which allowed other employees allegedly injured by First Union’s

acquisitions to “opt-in” to Stone’s suit.3             One hundred and sixty employees

subsequently joined the suit. The district court, however, later decertified the class

because class members had different jobs within the bank and had a variety of claims

against First Union. This court denied the plaintiffs’ petition for permission to appeal

the decertification order.

       After the class was decertified, the opt-in class members motioned to intervene

in Stone’s individual suit against First Union. The district court denied the motions

for intervention as a matter of right under Fed. R. Civ. P. 24(a) and permissive

intervention under Fed. R. Civ. P. 24(b). The plaintiffs now appeal this denial.4



       II. Jurisdiction

       Orders denying a motion for intervention are not final orders. EEOC v. Eastern


       2
           Stone filed a charge of age discrimination with the EEOC in November 1992.
       3
         Plaintiffs suing under the Age Discrimination in Employment Act (ADEA) must use an
opt-in mechanism rather than the opt-out procedure allowed under Fed. R. Civ. P. 23. Hipp v.
Liberty Nat’l Life Ins., 252 F.3d 1208, 1216 (11th Cir. 2001).
       4
         The named plaintiff’s suit against First Union was scheduled to go to trial, but those
proceedings have been stayed pending this appeal.

                                                3
Airlines, 736 F.2d 635, 637 (11th Cir. 1984); see also 29 U.S.C. § 1291 (stating that

circuit courts have jurisdiction to review final decisions of district courts).

Nonetheless, under the aptly-named “anomalous rule,” this court has provisional

jurisdiction to review the district court’s denial of a motion to intervene based on

right. Eastern Airlines, 763 F.2d at 637; see also AAL High Yield Bond Fund v.

Deloitte & Touche LLP, 361 F.3d 1305, 1309 n.4 (11th Cir. 2004); FTC v. Am. Legal

Distrib. Inc., 890 F.2d 363, 364 (11th Cir. 1989). If the district court erred in denying

intervention based on right, this court has jurisdiction to correct the error. Eastern

Airlines, 763 F.2d at 637. If the district court did not err, however, then this court’s

jurisdiction “evaporates.” Id.

       The court also has jurisdiction if the district court abused its discretion in

denying permissive intervention. Stallworth v. Monsanto Co., 558 F.2d 257, 263 (5th

Cir. 1977) (holding that the court had jurisdiction to review the denial of permissive

intervention where the plaintiffs requested intervention based on right and

permission).5 In Davis v. Butts, this court appears to have revised the Monsanto rule,

holding that there is no appellate jurisdiction where the plaintiffs requested

permissive intervention alone. 290 F.3d 1297, 1299 (11th Cir. 2002). The Davis


       5
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to
the close of business on September 30, 1981.

                                               4
decision, however, did not alter this court’s jurisdiction to review denials of

permissive intervention if the plaintiffs requested intervention based on right and

permission. Id. Here, the plaintiffs appeal the denial of their motion for intervention

based on right and permission, and, thus, we have jurisdiction to hear both claims.



      III. Intervention Based on Right

      Rule 24(a)(2) permits plaintiffs to intervene as a matter of right under certain

conditions:

      Upon timely application anyone shall be permitted to intervene in an
      action…(2) when the applicant claims an interest relating to the property
      or transaction which is the subject of the action and the applicant is so
      situated that the disposition of the action may as a practical matter
      impair or impede the applicant’s ability to protect that interest, unless
      the applicant's interest is adequately represented by existing parties.


Fed. R. Civ. P. 24(a)(2). This court has interpreted this rule to require a party seeking

intervention of right to demonstrate that: “(1) his application to intervene is timely;

(2) he has an interest relating to the property or transaction which is the subject of the

action; (3) he is so situated that disposition of the action, as a practical matter, may

impede or impair his ability to protect that interest; and (4) his interest is represented

inadequately by the existing parties to the suit.” Worlds v. Dept. of Health and

Rehabilitative Servs., 929 F.2d 591, 593 (11th Cir. 1991) (citing Chiles v. Thornburg,

                                            5
865 F.2d 1197 (11th Cir. 1989)).

      Here, only the third and fourth elements are contested. Neither party contends

that the motion to intervene was untimely, and First Union concedes that the plaintiffs

have an interest in the litigation. The parties, however, disagree over the two

remaining elements of Rule 24(a)(2): (1) whether the opt-in plaintiffs’ interests are

impaired or impeded by Stone’s individual litigation, and (2) whether the opt-in

plaintiffs’ interests are adequately represented by Stone.



      A. Impairment of Interest

      The district court held that the plaintiffs’ interests were not impaired by the

litigation of Stone’s case for two reasons. First, the district court determined that any

rulings from the Stone litigation would not injure the remaining plaintiffs through

stare decisis. The court had decertified the class because the putative class members’

claims were not sufficiently similar. Consequently, the district court ruled that the

issues raised in litigation would not be sufficiently similar to create potential stare

decisis concerns.6

      6
          The district court stated:

              Moreover, the Court is not persuaded by Plaintiffs’ argument that the
      application of stare decisis supports their impairment argument. The Court is not
      provided with specific examples of similar issues of stare decisis present here. The
      case cited by Plaintiffs in support of this argument, Sierra Club v. Glickman, 82 F.3d

                                                6
       Second, the district court determined that the opt-in plaintiffs would not be

injured by their inability to “piggyback” on Stone’s timely filed complaint with the

EEOC. The district court reasoned that the plaintiffs, who had failed to file EEOC

claims, were able to join the suit only because of the conditional class certification.

The district court, thus, determined that the inability to piggyback was not an

impairment because it simply withdrew a benefit that had been conditional on

keeping class status.

       We review de novo the district court’s denial of a motion to intervene based on

right. Georgia v. U.S. Army Corp of Eng’rs, 302 F.3d 1242, 1249 (11th Cir. 2003)

(citing Purcell v. BankAtlantic Fin. Corp., 85 F.3d 1508, 1512 (11th Cir. 1996)).

       We disagree with the district court that the plaintiffs in this case would not, as


       106 (5th Cir. 1996), is inapposite. In Sierra Club, a suit was brought by farmers
       seeking to intervene in a suit by an environmental group to enjoin an agency from
       overpumping an aquifier. The court in that case concluded that the potential stare
       decisis issues supported the impairment prong of intervention because a finding of
       a threat would have affected contracts that farmers had in place regarding the
       aquifier. In this case, however, the disposition of an individual age discrimination
       case, which the Court has held by previous Order is not sufficiently related to
       putative class members’ claims to support collective action, does not present similar
       issues of stare decisis. In their Reply, Plaintiffs state that while other courts “would
       not technically be bound by any decisions by this Court or this jury that go against
       Ms. Stone . . . any such decisions would be considered persuasive and raise issues of
       comity.” The Court disagrees with this statement, particularly when the facts
       surrounding the Plaintiffs’ claims vary. Moreover, the Court notes that Plaintiffs
       themselves ultimately concede that other courts “would not be compelled to make the
       same decision against any of the Opt-In Plaintiffs.”

Stone v. First Union Corp., 216 F.R.D. 540, 557 (S.D. Fla. 2001).

                                                  7
a practical matter, be impaired by the potential stare decisis effects of any rulings on

Stone’s suit against First Union. This court previously has found that the potential

for a negative stare decisis effect “may supply that practical disadvantage which

warrants intervention of right.” Chiles v. Thornburgh, 865 F.2d 1197, 1214 (11th Cir.

1989). For instance, in Chiles, detainees in an INS facility in Dade County sought to

intervene in Senator Chiles’s lawsuit challenging the federal government’s operation

of the detention center. There, this court explained that the potential stare decisis

effects of Senator Chiles’s suit would impair the detainees’ attempts to challenge the

facility as well:

       We think the detainees are so situated that the disposition of the lawsuit
       will, as a practical matter, impair their ability to protect their interests.
       As we have already discussed, the detainees are confined in the
       institution whose operation is being challenged. There is therefore a
       conjunction of a claim to and an interest in the very transaction which
       is the subject of the main action, and the stare decisis effect of a decision
       suggests the practical disadvantage requisite for intervention. Where a
       party seeking to intervene in an action claims an interest in the very
       property and very transaction that is the subject of the main action, the
       potential stare decisis effect may supply that practical disadvantage
       which warrants intervention as of right. Atlantis Development Corp. v.
       United States, 379 F.2d 818, 829 (5th Cir.1967). The detainees’ ability
       to litigate the government's operation of Krome in a separate lawsuit
       might be an exercise in futility if the instant lawsuit was decided in favor
       of the government.


Chiles, 865 F.2d at 1214 (emphasis added); see also Georgia v. United States Army



                                            8
Corp of Eng’rs, 302 F.3d 1242 (11th Cir. 2003).7

        Although the potential for negative stare decisis effects does not automatically

grant plaintiffs the right to intervene, the practical impairment the plaintiffs may face

here is significant. The plaintiffs are all alleging that the same First Union policy

violated the ADEA and led to their injury. Consequently, one court’s ruling on

whether the bank’s policy, as a matter of law, was in violation of the ADEA could

influence later suits. Although a district court would not be bound to follow any

other district court’s determination, the decision would have significant persuasive

effects. We find that these effects are sufficiently significant to warrant intervention.

        On a related issue, we note that the plaintiffs may be allowed to piggyback onto

Stone’s timely filed EEOC complaint as they were when the class was conditionally

certified, although it is unrelated to the decision to allow them to intervene. ADEA

plaintiffs, who are denied class action status or denied the right to intervene in a

lawsuit, may nonetheless piggyback on a timely filed EEOC letter. In Calloway v.

Partners Nat’l Health Plans, 986 F.2d 446 (11th Cir. 1993), this court determined that

        7
          In Georgia v. United States Army Corp of Engineers, Florida sought to intervene as a defendant
in Georgia’s suit to force the Army Corp of Engineers to release more water from Lake Lanier. 302 F.3d
at 1248. The suit would affect the water in the Apalachicola River, a major source of water for Florida.
Id. at 1252. Georgia argued that Florida’s interests were not impaired by Georgia’s suit because Florida
could always sue Georgia separately under the ACF Compact. Id. at 1253. This court rejected Georgia’s
argument and held that Florida was entitled to intervene. The ACF Compact is based on “equitable
allocation” principles that take into account the current allocation of water. Id. at 1255. Because
Georgia’s suit, if successful, would lead to a reallocation of water, the court found that Florida’s interest
could be impaired in later litigation. Id.

                                                      9
a plaintiff, who was not allowed to intervene in a lawsuit where another plaintiff had

a timely filed EEOC letter, was nonetheless permitted to piggyback on the EEOC

letter if (1) the letter was valid and (2) the discriminatory treatment was similar and

took place in the same time frame. There, the court stated that this “single-filing” rule

“comports with the purpose of the EEOC charge requirement by ensuring that the

settlement of grievances will be attempted first through the EEOC. Moreover, there

is no reason to distinguish between a plaintiff who successfully intervenes and one

who does not.” Id. at 450.

       Calloway addressed a Title VII claim, but the single-filing rule has been

extended to ADEA suits. In Gitlitz v. Compagnie Nationale Air France, 129 F.3d

554, 557 (11th Cir. 1997), this court stated:

       In fashioning the ADEA statute of limitations, Congress carefully
       balanced the interests of plaintiffs and the interests of employers. A
       plaintiff who has not filed an individual EEOC charge may invoke the
       single-filing rule where such plaintiff is similarly situated to the person
       who actually filed an EEOC charge, and where the EEOC charge
       actually filed gave the employer notice of the collective or class-wide
       nature of the charge. In such circumstances, it is reasonable from the
       perspective of the employer’s interests and the interests of economy of
       administration within the agency to permit such a plaintiff to rely upon
       the other claimant’s EEOC charge.8

       8
         In Gitlitz, the court went on to say that if the plaintiff had filed an EEOC letter himself
and then failed to file a timely suit, he could not piggyback on another employee’s timely filed
suit. 129 F.3d at 558. Thus, a plaintiff can only piggyback on a timely EEOC letter if he did not
receive his own letter. Here, there is no evidence that any of the plaintiffs would fall into this
category. If one did, however, he would not be allowed to piggyback as an intervener and, thus,

                                                 10
       Consequently, here, the district court should consider whether the plaintiffs

should be allowed to piggyback on Stone’s claim as interveners.



       B. Adequate Representation

       To intervene based on right, the plaintiffs also must demonstrate that Stone

does not adequately represent their interests. Fed. R. Civ. P. 24(a)(2). There is a

presumption of adequate representation where an existing party seeks the same

objectives as the interveners. Clark v. Putnam County, 168 F.3d 458, 461 (11th Cir.

1999). This presumption is weak and can be overcome if the plaintiffs present some

evidence to the contrary. Id. If the interveners overcome this presumption, the court

“returns to the general rule that adequate representation exists ‘[1] if no collusion is

shown between the representative and an opposing party, [2] if the representative

does not have or represent an interest adverse to the proposed intervener, and [3] if

the representative does not fail in fulfillment of his duty.’” Id. Interveners need only

show that the current plaintiff’s representation “may be inadequate,” however, and

the burden for making such a showing is “minimal.” Id.

       On this issue, this court’s decision in Chiles is particularly instructive because

one group was allowed to intervene and another was not based on whether the current


his interests would not be impaired by a denial of intervention.

                                                11
plaintiffs would adequately represent their interests. There, as stated above, Senator

Chiles brought a suit against the INS for its use of the Krome detention facility in

Dade County. The district court permitted Dade County and the Governor of Florida

to intervene in the suit, but denied the same request by two additional groups,

detainees being held at Krome and a Dade County homeowners’ association. On

appeal, this court permitted the detainees to intervene because Dade County did not

adequately represent their interests but denied the homeowners’ association’s motion

because Dade County adequately represented their interests. Chiles, 865 F.2d at

1214-15.

      In Chiles, this court’s reasoning was based on the similarity of the interests

between would-be-interveners and the current plaintiffs. Id. This court decided that

the detainees had similar, but not identical interests, to the county, and, thus, the

county might not represent the detainees’ interests. For instance, we noted:


      Dade County may decide not to emphasize the plight of the aliens held
      at Krome but focus instead on the effect that Krome has on those who
      live outside its walls. After all, Dade County is mainly concerned with
      the expenditures that have to be made because of Krome. We conclude
      that this possibility sufficiently demonstrates that the detainees’ interests
      are not adequately represented.


Id. at 1215. By contrast, the homeowners’ association had identical interests to the



                                           12
county, and, thus, the county provided adequate representation. We explained that

“[u]nlike the detainees, the homeowners and the Homeowners’ Association have an

interest which is identical to Dade County: the prevention of riots and escapes from

Krome and the protection of nearby residents. There is no indication whatsoever that

the representation rendered by Dade County would be inadequate.” Id. (citation

omitted).

      Here, the district court has already held that Stone is not an adequate

representative plaintiff for class action purposes because the plaintiffs do not have

sufficiently similar claims against the bank. Although all of the plaintiffs allege to

have been subject to the same plan of age discrimination, the manner in which they

were discriminated against may not be identical. Thus, under Chiles, the plaintiffs

are permitted to intervene to represent their interests where different than Stone’s

interests. For instance, the plaintiffs may wish to emphasize different aspects of First

Union’s employment policies. We hold that the difference in interests is sufficient

to overcome the weak presumption of adequate representation.

      For the above reasons, we reverse the district court and hold that the plaintiffs

can intervene as a matter of right.



REVERSED and REMANDED

                                          13
