Amicus Curiae Brief — Martin v. Wilks

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__nos. 87-1614, 87-1632 and 87-11

IN THE SUPREME COURT OF THE UNITE

eme Court, U.S,

EILED

JOHN W. MARTIN, ET AL., Petitiongrs AUG 18 1988 ?

ROBERT K. WILKS, ET AL., Respond@nt&O6GPH F. SPANROL, IR,

CLERK

October Term, 1388

PERSONNEL BOARD OF JEFFERSON COU

ALABAMA, ET AL., Petitioners

Vv.

ROBERT K. WILKS, ET AL., Respondents

RICHARD ARRINGTON, JP.,

ET AL., Petitioners

ROBERT K. WILKS, ET AL., Respondents

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF OF

ALABAMA, ARKANSAS, CALIFORNIA, CONNECTICUT,

FLORIDA, GEORGIA, IDAHO, INDIANA, IOWA, KANSAS,

KENTUCKY, LOUISIANA, MARYLAND, MASSACHUSETTS,

MINNESOTA, MISSOURI, MONTANA, NEBRASKA,

NEVADA, NEW HAMPSHIRE, NEW JERSEY, NEW YORK,

OHIO, OKLAHOMA, RHODE ISLAND AND PROVIDENCE

PLANTATIONS, SOUTH CAROLINA, TEXAS, VERMONT,

VIRGINIA, WEST VIRGINIA, WISCONSIN, WYOMING,

THE DISTRICT OF COLUMBIA, AND THE VIRGIN

ISLANDS, AS AMICI CURIAE IN SUPPORT

OF PETITIONERS

JAMES M. SHANNON

Attorney General

Commonwealth of Massachusetts

ALICE DANIEL

Deputy Attorney General

Counsel of Record

JANE S. SCHACTER

PETER SACKS

Assistant Attorneys General

One Ashburton Place

Boston, Massachusetts 02108

(617) 727-2200

(Additional Counsel on Inside Covers)

DON SIEGELMAN

Attorney General of Alabama

JOHN STEVEN CLARK

Attorney General of Arkansas

JOHN VAN de KAMP

Attorney General of California

JOSEPH I. LIEBERMAN

Attorney General of Connecticut

FREDERICK D. COOKE

Corporation Counsel of

the District of Columbia

ROBERT A. BUTTERWORTH

Attorney General of Florida

MICHAEL J. BOWERS

Attorney General of Georgia

JIM JONES

Attorney General of Idaho

LINLEY E. PEARSOi

Attorney General of Indiana

THOMAS J. MILLER

Attorney General of Iowa

ROBERT T. STEPHAN

Attorney General of Kansas

FREDERIC J. COWAN

Attorney General of Kentucky

WILLLIAM J. GUSTE, JR.

Attorney General of Louisiana

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

HUBERT H. HUMPHREY, III

Attorney General of Minnesota

WILLIAM L. WEBSTER

Attorney General of Missouri

MIKE GREELY

Attorney General of Montana

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICI CURIAE

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT

I. THOSE WITH NOTICE AND AN

OPPORTUNITY TO INTERVENE

IN PROCEEDINGS CULMINATING

IN A CONSENT DECREE SHOULD

NOT BE PERMITTED TO ATTACK

THAT DECREE IN A SUBSEQUENT

LAWSUIT ae’ We

A. Established Principles

of Preclusion Fully

Support A Rule Barring

Collateral Attacks By

Those Who Had Notice

and An ees to

Intervene ° ,

- The Compelling

Interests Suppor-

ting Preclusion

Have Led to Many

Judicially-Created

Exceptions to

the Rule That Only

Parties May Be

Bound . s

Page

TABLE OF CONTENTS | TABLE OF CONTENTS

(continued) (continued)

This Court Should

Apply Penn Central

and Provident

Tradesman's Bank

to Bar Collateral

Attacks on Consent

Decrees

a. Collateral

Attacks

Undermine

Finality

b. Collateral

Attacks

Undermine

Settlement

Incentives

CG. Collateral

Attacks

Undermine

Compliance

With Court

OrGgers . .«

d. Collateral

Attacks

Undermine

Fairness

e. Collateral

Attacks

Undermine

Comity .

éitt.

Page Page

Bas

AN ALTERNATIVE RULE REQUIRING

Barring Collateral

Attacks By Those Who

Had Notice and Failed

to Intervene On a

Timely Basis Does Not

Violate Due Process

MANDATORY JOINDER IS WHOLLY

INAPPROPRIATE

Mandatory Mass Joinder

of Potentially Affected

Persons Will Create

Serious Practical

Problems That Are

Avoided By Voluntary

Intervention P

Neither Joinder of a

Defendant Class, Nor

Joinder of Unions,

Will Resolve The

Serious Practical

Problems with Mandatory

I ia Sat oe af Se os ws

ie Defendant Class

Actions Would

Be Unworkable

Zi Mandatory Joinder

of Unions Would

Also Be

Unworkable

CONCLUSION

-iii-

TABLE OF AUTHORITIES

CASES

Adams_v. Bell, 711 F.2d 161

(D.C. Cic. 3963), goers.

denied 465 U.S. 1021 (1984) ‘ae 21

Aerojet General Corporation v.

Askew, 511 F.2d 710 (5th Cir.),

cert. denied 423 U.S. 908 (1975) . 18

OWE: ee

415 U.S. 36 (1974) ... —

anak ican Dane Gi. ta Behan 219

G.8. FP tee ah ot oo |

Armah 50065. Se 380 U.S. 545

(1965) ... a

Awtry v. United States, 684 F.2d

896 (Ct. Claims 1982) ... 19, 34

Bergh v. State of Washington, 535

F.2d $05 (9th Cir. 1976) ... 21, 41

In re Birmingham Reverse

Discrimination Employment

Litigation, 833 F.2d 1492,

1498 (llth Cir. 1987) .. . . passim

Rodd) s _¢.._ San A 401 U.S.

37a CASTS. oo as as ott a

Bolden v. Pennsylvania State

Police, 578 F.2d 912 _ Cir.

| See ae - 38, 37

Britti v. C¢ : : :

451 P.26 315 (Sth Cie. 1971)... 4!

TABLE OF AUTHORITIES

(continued)

CASES ;

Christiansen v. Farmers Ins.

Exchange, 540 F.2d 472 (5th

Cir. 1972) ee Ge eas On

Cotton v. Federal Land Bank of

Columbia, 676 F.2d 1368 (llth

Cir.), cert. denied 459 U.S.

1041 (1982) (ere ie ere

Culbreath v. Dukakis, 630 F.2d

15 (lst Cir. 1980) it Mele +g

Dennison v. City of Los Angeles

Dep't of Water & Power, 658

F.2d 694 (9th Cir. 1981)

Devereaux v. Geary, 765 F.2d 268

(Ist Cir. 1985), cert. denied

106 S. Ct. 3337 (1986)

AE TT WT 1 ee 324

U.S. 316 (1945) ‘io

Dunn v. Carey, 808 F.2d 555

(7th Cir. 1986) ne :

Grann v. City of Madison, 738

F.2d 786 (7th Cir.); cert.

den. 469 U.S. 918 (1984)

Goins v. Bethlehelm Steel

Corp., 657 F.2d 62 (4th Cir.

1981), cert. denied 455 U.S.

940 (1982) _ wae Mk fe ©

12,

13,

TABLE OF AUTHORITIES

(continued)

Page

CASES

Hanover National Bank v.

Moyses, 186 U.S. 181 (1902) eo

Hansberry v. Lee, 311 U.S.

oe Cee” eaaietucd tceuecies Bs Oe

eC} Sty eee 224

U.S. 413 (1912) — . £2 Co y4) fee

Howard v. McLucas, 782 F.2d 956

~ BERG Gal << Bee: 6. «feels «16 oe BB

International Union, Allied

Industrial Workers of America

v. Local Union No. 589, 693

F.2d 666 (7th Cir. 1982) ..... 34

International Union, United

a ey ae -~-* | eme

477 GO... Bee cee lk es a are,

Local 93, International

Association of Firefighters v.

City of Cleveland, 106 S. Ct.

ey | eee 6S UD ee

Marino v. Ortiz, 806 F.2d 1144

(2d Cir. 1986), aff'd by an

equally divided Court, 108 S.

2m SB Lobe eee > Pe! Fey

Montana v. United States,

665 .©.8. B6r Gee tates ¢ (e- 286 28

-vi-

TABLE OF AUTHORITIES

(continued)

Page

CASES

Mother's Restaurant, Inc. v.

Mama's Pizza, Inc., 723 F.2d

1566 (Fed. Cir. 1983)

Mullane v. Central Hanover Bank

& Trust Co., 339 U.S. 306

PO a Sera at eee OM

NAACr v. - es 413 U.S.

26D. 4490e) © « % hn a ae

National Wildlife Federation

v. Gorsuch, 744 F.2d 963

Sa, es PE a gg 14,

Nevada v. wareeeAtates., 463

U.S. 110 (1983) — or ‘ty = 17,

O’ Burn v. Shapp, 70 F.R.D. 549,

552-553 (E.D. Pa), aff'd mem.

Lutz v. Shapp, 546 F.2d 4:7

(3d Cir. 1976), cert. annand

430 U.S. 968 (1977) .

Occidental Life Insurance Co,

v. EEOC, 432 U.S. 355 (1977)

Ohio v. Kentucky, 410 U.S.

Ses Se ae ees ee © 6 || AD,

Tre a Wi

441 U.S. 750 (1979) . .

peon-Central and Bit

, 389 U.S.

ase EE a a!

-vii-

TABLE OF AUTHORITIES

(continued)

Page

CASES

Provident Tradesmens Bank &

Trust Co. v. Patterson, 390

0.8. 302. 45000) 6 se ee 6965 B14

Safir v. Dole, 718 F.2d 475

(D.C. Cie. 1963), amet.

denied 467 U.S. 1206

ee ce eee oe ee . fs ee |e

Sealand Services, Inc. v~-

Gaudet, 414 U.S. 573 (1974) ... 17

Society Hill Civil Ass'n v.

Harris, 632 F.2d 1045 Sac.

ae . Se ; - —

Souffront v. Companie des

Sucreries, 217 U.S. 475 (1910) .. 19

South v. Rowe, 759 F.2d 610

(7em CEs. Seer 6 & ee woe oe se) 6

Stallworth v. Monsanto Co., 558

ee BB. &.) ye |

Stotts v. Memphis Fire Dep't.,

679 F.2d 561 (6th Cir. 1982),

rev'd on other grounds sub nom.

Firefight 1 Uni N 1784

v. Stotts, 467 U.S. 561 (1984) . . 13

Striff v. Mason, 849 F.2d 240

(6th Cir. 1988) “haar ‘ _—

-viii-

TABLE OF AUTHORITIES

(continued)

Page

CASES

Thaggard v. City of Jackson, 687

F.2d 66 (5th Cir. 1982), cert.

denied sub nom. Ashley v. City

of Jackson, 464 U.S. 900

Cee ve a gee er ee a ne A RY

United Mine Workers v. Gibbs,

vo @ 8 LANA

United States v. Geophysical

Corp., 732 F.2d 693 (9th Cir.

ens. a. oe ees es ek ce

United States v. Jefferson

County, 720 F.2d 1511 (llth Cir.

a ir Fi

STATUTES AND RULES

42 U.S.C. §§ 2000e, et seq. . passim

42 U.e.6. @ Beeeees CGF « 2 et et te Oe

os Va oe Ele el ete sl SS

o2 U8 eee OR ltl tl hl el SS

42 U.8.0. 3 geneween Ce) . «ew et Oe

a ee ee ee ee | le gk le te ee

a ee eS ee | | (Pe |

-ix-

TABLE OF AUTHORITIES

(continued)

MISCELLANEOUS

1 J. Pomeroy Equity

Jurisprudence, §§ 418-419

(4th Ed. 1918) ai jh oe

Restatement (Second) of

Judgments, § 19, com. a (1982)

Restatement (Second) of

Judgments, § 62 (1982)

Schwarzschild, Public Law by

‘pe in: Title Vil

Consent Decrees and the

Fairness of Negotiated

Institutional Reform, 1984

Duke L.J. 887 “Vege ae

18 Wright, Miller & Cooper,

ary) Erk? y | ane

§ 4457 (1981) :

Interest of Amici Curiae

Amici, the states and other juris-

dictions identified above, submit this

brief in support of Petitioners. Amici

respectfully urge this Court to rule

-that persons with notice of litigation,

and an opportunity to intervene on a

timely basis before entry of a consent

decree in that litigation, should not be

permitted to attack the decree colla-

terally in a subsequent action.

The resolution of this case will

have dramatic implications for the con-

tinued efficacy of consent decrees as

remedial devices in Title VII litigation

and, in all likelihood, in other con-

texts as well. If adopted by this

Court, the Eleventh Circuit's minority

‘rule permitting collateral attacks on

consent decrees will substantially un-

dermine the utility of such decrees.

As representatives of state emp-

loyers and state personnel admin-

istrators, many of whom are parties to

consent decrees in employment discri-

mination cases, amici have a strong in-

terest in preserving the efficacy of

consent decrees, especially in light of

Congress' preference for cooperation and

voluntary compliance in the area of

equal employment opportunity. In this

same capacity, amici have a strong in-

terest in opposing the adoption of un-

workable procedural rules, such as man-

datory joinder of potentially affected

employees in Title VII suits.

In addition, as chief law enfor-

cement officers, amici have an

interest in vigorous enforcement of

antidiscrimination law. Consent decrees

are valuable enforcement tools which, if

freely subject to collateral attack,

will be far less effective.

As set forth fully below, amici res-

pectfully urge that the judgment of the

court below be reversed.

STATEMENT OF THE CASE

In January 1974, Petitioners John W.

Martin, et al. commenced a Title VII ac-

tion against the City of Birmingham,

Alabama and the Jefferson County Per-

sonnel’ Board, alleging discriminatory

hiring and promotion practices in the

Police and Fire Departments. In 1975,

the United States brought a similar ac-

tion. Existing city employees and their

unions were well aware of the litigation

from the beginning; in fact,

the Bireinghen Firefighters Association

monitored the case and supplied infor-

mation to assist in its defense. Joint

Appendix ("J.A."), 772-773.

In 1976, a trial was held on the

validity of certain entry-level exam-

inations. The district court found, dis-

Crimination and ordered race-conscious

relief. J.A.553-589. In 1979, a second

trial was held on the validity of other

employment and promotional practices.

J.A. 594. Before the court rendered a

decision, the parties commenced set-

tlement negotiations. In 198l, the par-

ties entered into two proposed consent

decrees. Appendix to Petitions for Writ

of Certiorari ("Pet. App."), 122a-235a.

Notice inviting “all persons’ who

have an interest which may be affected

aE Ne EN een

by the Consent Decrees” to appear at a

fairness hearing was subsequently given

by publication in two local newspapers

and by mail to class members. Pet. App.

146a-147a; 171la-192a; 222a-223a; 248a;

J.A. 695; 697-698. The Firefighters

Association filed objections to the dec-

rees and, through Raymond Fitzpatrick --

the same attorney who represents’ Res-

pondents here -- argued at the fairness

hearing that the decrees' race-conscious

relief violated Title VII and the Four-

teenth Amendment. J.A. 699-713;

732-740; 770. The court offered Mr.

Fitzpatrick an opportunity to present

evidence, but the offer was declined.

am, Vor. The day after the hearing,

the Firefighters Association moved to

intervene in the case. J.A. 774-776.

In August 1981, the district

gite

court approved the decree and denied the

motion as untimely. Pet. App.

236a-249a. The Eleventh Circuit

subsequently affirmed. United States v.

Jefferson County, 720 F.2d 1511, 1516-19

(llth Cir 1983); J.A. 149-161.

Beginning in April 1982, the City

proposed to promote certain black emp-

loyees pursuant to the consent decrees.

J.A. 40-41. Competing white applicants,

again represented by Mr. Fitzpatrick,

commenced five “reverse discrimination”

cases against the City and Personnel

Board attacking the validity of the con-

sent decrees and seeking to enjoin the

promotions. Pet. App. 110a-l2la; J.A.

35-36; 38-39; 91-100; 130-134. Peti-

tioners John Martin, et al., who were

plaintiffs in the original Title VII

litigation, promptly intervened (over

WS» ellis hha rte) bash iho

er EAC Baths

‘

Respondents‘ objection) in order to

defend the consent decrees, and all

defendants sought to dismiss the new

suits as impermissible collateral

attacks on the consent decrees. J.A.

43-47; 52; 101-103; 106-108; 165-171;

175-178; 185-187.

After a five day trial in December

of 1985, the district court concluded

that the reverse discrimination plain-

tiffs could not collaterally attack the

consent decrees, and that in any case

the decrees were lawful, and thus that

the challenged promotions were not un-

lawfully discriminatory. J.A. 26-29;

Pet. App. 67a-68a; 106a-107a. On ap-

peal, the Eleventh Circuit concluded

that plaintiffs were not bound by the

consent decrees, reasoning that only

parties to prior litigation may be bound

by orders issued in that litigation. In

re Birmingham Reverse Discrimination

Employment Litigation, 833 F.2d 1492,

1498 (220 “Sees 1987); Pet. App.

12a-20a. Apparently overlooking the di-

©. .1ct court's disposition of the case

on the merits, the Eleventh Circuit re-

manded the case for trial. This Court

granted petitions for writs of cert-

iorari on June 20, 1988.

SUMMARY OF ARGUMENT

Amici urge this Court to hold that

those who have notice and an opportunity

to intervene on a timely basis in pro-

ceedings culminating in a consent decree

may not collaterally attack that decree

in a subsequent lawsuit. This Court has

twice embraced the principle that per-

sons who bypass an opportunity

‘

to intervene may be subject to pre-

clusion, and the vast majority of lower

courts have barred collateral attacks on

consent decrees. Like other judi-

cially-created rules of preclusion --

including other exceptions to the gen-

eral rule that only parties to prior

litigation may be bound -- the _ rule

amici urge serves the compelling in-

terests underlying the doctrines of res

judicata and collateral estoppel.

The minority rule adopted ay the

Eleventh Circuit, by contrast, seriously

undermines the interests protected by

rules of preclusion. As applied to pub-

lic employers, the Eleventh Circuit's

rule will impede and delay resolution of

divisive Title VII cases, will dis-

courage settlement and undermine the

utility of consent decrees, will

potentially force state agencies’ into

contempt of one of two inconsistent

court orders, will discourage interested

persons from intervening and instead en-

courage tactical maneuvering and waste-

ful relitigation, and will force courts

to second-guess orders issued by other

courts in derogation of settled policies

of comity. And, these kinds of problems

are likely to arise in contexts other

than Title VII if the Court adopts the

Eleventh Circuit's rule as its own.

In addition to promoting important

policies, a rule of preclusion that re-

quires interested parties with fair no-

tice of the proceedings to intervene

satisfies due process requirements,

which require notice and a meaningful

opportunity to be heard, not a hearing

in fact. Moreover, while amici believe

=—T

that the opportunity to intervene on a

timely basis is itself sufficient to

satisfy due process, in this case Res-

pondents were in fact heard in oppo-

Sition to the consent decree, through

their attorney, at a full fairness hear-

ing prior to adoption of the decree.

Finally, this Court should. reject

any suggestion that involuntary mass

joinder of potentially affected persons,

rather than self-selected intervention,

is the appropriate means to ensure that

a decree has binding effect. Such a

rule would create enormous'7 practical

problems, impose substantial financial

burdens on all concerned, spawn wasteful

litigation about the question of whom to

join, and erect formidable obstacles in

the path of plaintiffs claiming

-lj-

discrimination, by forcing them to sue

not only their employers, but their col-

leagues, as well. These problems cannot

be solved by joinder of a defendant

class or of a union, which would create

Significant probiems of their own. But

these difficulties can and will be

avoided if this Court adopts the rule

amici urge.

ARGUMENT |

I. THOSE WITH NOTICE AND AN

OPPORTUNITY TO INTERVENE IN

PROCEEDINGS CULMINATING IN A

CONSENT DECREE SHOULD NOT BE

PERMITTED TO ATTACK THAT DECREE

IN_A SUBSEQUENT LAWSUIT

No fewer than six of the eight

courts of appeals that have considered

the question have barred collateral at-

tacks on consent decrees. See Culbreath

v. Dukakis, 630 F.2d 15, 22-23 (lst Cir.

1980); Devereaux v. Geary, 765 F.2d 268,

271 (lst Cir. 1985), cert. denied 106 S.

ofa

Ct. 3337 (1986); Marino v. Ortiz, 806

F.2d 1144 (2d Cir. 1986), aff'd by an

equally divided Court, 108 S. Ct. 586

(1988); Goins v. Bethlehelin Steel Corp.,

657 F.2d 62 (46h Cit. 1981), cert.

denied 455 U.S. 940 (1982); Thaggard v.

City of Jackson, 687 F.2d 66 (5th Cir.

1982), cert. denied sub nom. Ashley v.

City of Jackson, 464 U.S. 900 (1983);

Striff v. Mason, 849 F.2d 240 (6th Cir.

1988); Stotts v. Memphis Fire Dep't.,

679 F.2d 561, 558 (6th Cir. 1982), rev'd

on other grounds sub nom. Firefighters

Local Union No. 1784 v. Stotts, 467 U.S.

561 (1984); Dennison v. City of Los

Angeles Dep't of Water & Power, 658 F.2d

694, 696 (9th Cir. 1981). In addition,

the Third Circuit has summarily affirmed

a decision holding a collateral attack

on a Title VII consent decree

ate

impermissible, O'Burn ov. Shapp, 70

F.R.D. 549, 552-553 (E.D. Pa) aff'd mem.

sub nom. Lutz v. Shapp, 546 F.2d 417 (3d

Cir. 1976), cert. denied 430 U.S. 968

(1977), and has applied the rule in

other contexts, see, e.g., National

Wildlife Federation v. Gorsuch, 744 F.2d

963 (3d Cir. 1984); Society Hill Civil

Ass'n v. Harris, 632 F.2d 1045, 1052 (3d

Cir. 1980). By contrast, only one other

court of appeals has joined the Eleventh

Circuit in taking the contrary view.

See Dunn v. Carey, 808 F.2d 555 (7th

Cir. 1986). As amici set forth below, a

rule barring collateral attacks brought

by persons who had notice and the

opportunity to intervene before entry of

the decree is fully warranted by

principles of preclusion law, meets due

ste

process requirements, and should be

adopted by this Court .+/

A. Established Principles of

Preclusion Fully Support A

Rule Barring Collateral

Attacks By Those Who Had

Notice and An Opportunity

to Intervene

The rule barring collateral attacks

is grounded in the recognition that

l/ There is nothing to the contrary in

this Court's decision in Local 93,

International Association of Fire-

fighters v. City of Cleveland, 106 S.

ee 3068 (1986). There, the Court

recognized that “[a] court's approval of

a consent decree between some of the

parties...cannot dispose of the valid

claims of non-consenting intervenors; if

properly raised, these claims remain and

may be litigated by the intervenor."

Id. at 3079 (emphasis added). But,

because Local No. 93 had “failed to

raise any substantive claims” before the

entry of the consent decree, the Court,

in affirming the approval of the decree,

expressly raised the question “[w]Jhether

it is now too late to raise _ such

Claims...." Id. at 3080. In short, the

Court carefully reserved the possibility

that opponents of Title VII consent dec-

rees may lose any claims not timely

raised.

eta

permitting separate lawsuits to chal-

lenge a consent decree “would raise the

specter of inconsistent or contradictory

proceedings, would promote continued un-

certainty thus undermining the concept

of a final judgment and would violate

the policy of promoting settlement in

Title VII actions." Marino v. Ortiz,

806 F.2d at 1146. The Eleventh Circuit

ignored all of these factors, because it

found singularly dispositive the fact

that Respondents were not parties to the

prior proceedings. In applying so in-

flexible a rule, however, the court

below plainly erred.

olin

a. The Compelling [Int-

erests Supporting

Preclusion Have Led

to Many Judi-

Ccially-Created Ex-

ceptions to the Rule

That Only Parties May

Be Bound

Although “the general rule is that

non-parties to the first action are

not bound by a judgment or resulting

determination of issues," Sealand

Services, Inc. v. Gaudet, 414 U.S. 573,

593 (1974), this Court has recognized

that “several exceptions exist,” id. at

593 -- including many exceptions carved

out by judges.

For example, persons whose interests

were actually represented by a party are

bound. See, e.g., Nevada v. United

States, 463 U.S. 110, 139 (1983);

Sea-Land Services, 414 U.S. at 593;

Hansberry v. Lee, 311 U.S. 32, 42-43

(1940); Heckman v. United States, 224

whe

U.S. 413, 445-446 (1912). Likewise, a

non-party is bound by a decision where

his interests are “so similar to a

party's” that the party was his “virtual

representative” in the previous action.

United States v. Geophysical Corp., 732

F.2d 693, 697 (9th Cir. 1984); see

Sl1l F.2€ 710, 719 (Sth €S8s3, See

denied 423 U.S. 908 (1975); Cotton v.

Federal Land Bank of Columbia, 676 F.2d

1368 (llth Cir.), cert, denied 459 U.S.

1041 (1982); Mother's Restaurant, Inc.

v. Mama's Pizza, Inc., 723 F.2d 1566,

1572 (Fed. Cie. 1983). Further,

non-parties who exercise significant

"control" over litigation are also sub-

ject to preclusion. See, e.g., Montana

v. United States, 440 U.S. 147, 154-155

(1979); Drummond ov, © United

States, 324 U.S. 316, 318 (1945);

Souffront v. Companie des Sucreries, 217

u.S. 475, 486-487 (1910). And, prin-

stebes of estoppel have been applied to

bind non-parties who, by conduct, acqui-

eucenes or delay, induce others to be-

lieve that they will be bound by the

outcome of litigation. See, e.g.,

Christiansen v. Farmers Ins. Exchange,

540 F.2d 472 (5th Cir. 1972); Awtry v.

United States, 684 F.2d 896, 898-499

(Ct. Claims 1982); Restatement (Second)

of Judgments, § 62 (1982); cf. Ohio v.

Kentucky, 410 U.S. 641, 651 (1973) (ac-

quiescence in location of border).

Indeed, this Court has itself twice

embraced the principle that is central

to this case -- namely, that non-parties

may be bound by the results of a lawsuit

if they had notice and failed to

=|=

intervene to assert their own int-

erests. See Penn-Central and N&W

Inclusion Cases, 389 U.S. 486, 505-506

(1968); Provident Tradesmens Bank §&

Trust Co. v. Patterson, 390 U.S. 102

(1968). In Penn Central, the Court held

that a non-party to proceedings in New

York was precluded from litigating in

parallel Pennsylvania proceedings issues

resolved in New York, because’ the

non-party had and declined “an adequate

opportunity to join in" the New York ac-

tion. 389 U.S. at 505. That same year,

the Court suggested in Provident

Tradesman's Bank that preclusion might

apply to those who “purposely bypassed

an adequate opportunity to intervene.”

390 U.S. at 114. The principle recog-

nized in these cases has been applied

regularly in the lower federal

=26-

courts. See, e.g., Safir v. Dole, 718

P.2G °° O75, 482-83 (D.C. Cir. 1983)

(Scalia, J.), cert. denied, 467 U.S.

1206 (1984); Bergh Vv. State of

Washington, 535 F.2d 505, 507 (9th Cir.

1976) (Kennedy, J.); Grann v. City of

Madison, 738 F.2d 786, 794-96 (7th

Cir.); cert. den. 469 U.S. 918 (1984);

Adams _v. Bell, 711 F.2d 161, 168-170

(D.C. Cir. 1983) (en banc), cert. denied

465 U.S. 1021 (1984); National Wildlife

Federation v. Gorsuch, 744 F.2d at 967.

As set forth below, amici urge the Court

to apply this principle here.

Bs This Court Should Ap-

ply Penn Central and

Provident Tradesman's

Bank to Bar Coll-

ateral Attacks on

Consent Decrees

A rule based on Penn Central and

Provident Tradesman's Bank that bars

afin

collateral attacks brought by those who

had the opportunity to intervene on a

timely basis, like the rules of pre-

clusion applied to non-parties in the

various circumstances set forth above,

promotes the compelling interests’ that

generally underlie the doctrines of res

judicata and collateral estoppel --

"“protect[ing] adversaries from the ex-

pense and vexation attending multiple

lawsuits, conserv[ing] judicial re-

sources, and foster[ing] reliance on

judicial action by minimizing the pos-

Sibility of inconsistent decisions."

Montana v. United States, 440 U.S. at

153-154 (footnote omitted); see also

Nevada _v. United States, 463 U.S. at

129. The rule adopted by the Eleventh

Circuit, by contrast, radically under-

mines the interests protected by

-22-

rules of preclusion, and should be re-

jected by this Court.

a. Collateral

Attacks

Undermine

First, the related interests of fin-

ality and judicial economy weigh heav-

ily. In an era of overcrowded court

dockets, it is difficult to justify per-

mitting those with notice of a lawsuit

that might affect their rights to ab-

stain deliberately from participation as

party intervenors. Where such parties

sit on the sidelines or, as here, wait

until the eleventh hour to seek inter-

vention and then, if unsuccessful,

launch a later collateral suit, a second

court is asked to examine the very same

matters that were, or could have been,

decided in the first action. Federal

courts can ill-afford to allocate

~2%e

precious resources to indulge such sand-

bagging and “deliberate tactical

jockeying." .8 Wright, Miller & Cooper,

Federal Practice and Procedure, § 4457,

at 495 (1981).

Moreover, permitting interested per-

sons to bypass intervention in favor of

a second round of protracted litigation

will only delay final resolution of the

dispute. Such delay is especially harm-

ful in the context of public employ-

ment. For if the employer is unable to

fill positions in the face of lengthy,

continuing litigation, vitally important

public safety needs may well go unmet.

If, on the other hand, the employer

proceeds to to fill vacant positions in

accordance with the consent decree, even

in the face of a second lawsuit

challenging the practices authorized

afi@e

by the decree, a different set of

difficulties -- no less troubling --

will arise. If candidates are ap-

pointed to positions pursuant to the

consent decree during the second liti-

gation, and such appointments are later

invalidated, the employer and employees

might face demands that people be re-

moved from jobs. Such a circumstance

would, in turn, raise difficult ques-

tions in many civil service systems,

where. important rights relating to

seniority, pensions, other benefits, and

eligibility for promotion, may accrue by

virtue of an employee's holding a posi-

tion. At the ve-cy least, the continued

cloud of uncertainty and division that

will hang over the workplace is likely

to exact a high cost in employee morale

and productivity. Thus, for public

-25-

employers, public employees and the pub-

lic at large, long delays in the final

resolution of Title VII litigation

carries with it disturbing consequences

-- consequences that are avoided by a

rule barring collateral attacks by those

who could have intervened timely in the

earlier litigation.

b. Collateral

Attacks

Undermine

Settlement

Incentives

Collateral attacks on consent dec-

rees severely undermine the con-

gressional intent’ that "[c]looperation

and voluntary compliance” be the "“pre-

ferred means for achieving" the purposes

of Title Vil. Alexander Vv.

Gardner-Denver Co., 415 U.S. 36, 44

(1974); see Local 93, International —

=26-

Ass'n of Firefighters v. City of

Cleveland, 106 S. Ct. at 3072; 3076,

n. 13 (1986). The many consent decrees

that are entered into in Title VII and

related cases demonstrate that Congress

has achieved some success in effec-

tuating this’ policy. For example, in

the year ending June 30, 1987, there

were 310 civil rights employment cases

in the federal courts (involving both

public and private employers) that were

terminated by a consent decree granting

some form of relief to plaintiff(s); for

the year ending June 30, 1986, there

were 344.%/

These statistics suggest that, given

the frequent use of consent decrees in

—

2/ Unpublished figures available from

the Statistical and Reports Division of

the Administrative Office of the United

States Courts, Washington, D.C.

employment cases, chaos and confusion

will likely result if this Court adopts

the Eleventh Circuit's approach as its

own. Such a departure from the majority

rule barring collateral attacks may well

produce an onslaught of new challenges

to consent decrees that have been in

place for years, on which employees and

employers have long relied, and which

have continuing and present effect.

Moreover, the prospective effect

clearly will be to discourage sett-

lements in Title VII cases. Public emp-

loyers who know that a consent decree is

subject to later collateral attack by

other employees will have little in-

centive to settle Title VII cases, no

matter how meritorious the plaintiff's

claims, no matter how costly further

litigation may be in taxpayer's dollars,

=26-

and no matter how fair and appropriate a

proposed settlement may be. Plaintifé

employees will likewise be under-

standably reticent to settle if the pro-

spect of a collateral attack hy those

who have chosen to sit on the sidelines

may be right around the corner. Thus,

the congressional policy favoring volun-

tary compliance settlement will likely

be the first casualty of a holding by

this Court rejecting the majority rule

barring collateral attacks.=”

3/ Rejecting the majority rule against

collateral attacks will affect not only

state employers' willingness to settle

cases; it will also weaken the ability

of the states to enforce their own civil

rights statutes. Pursuant to 42 U.S.C.

§§ 2000e-5(c), 2000e-8(b), many’ state

and local antidiscrimination agencies

have cooperative agreements with the

Equal Employment Opportunity Commission,

through which the state or local agency

assumes jurisdiction of claims

(footnote continued)

a2@=

Indeed, if this Court adopts a rule

permitting collateral attacks on consent

decrees, its decision will also vuder-—

mine settlement in other kinds of public

law litigation where consent decrees

have been usefully employed, such as en-

vironmental, school desegregation and

other institutional reform cases. Such

a result would be unfortunate because,

in appropriate circumstances, consent

decrees may represent the best vehicle

(footnote continued)

cognizable under both Title VII and the

cognate state or local anti-

discrimination laws. Because of fre-

quent docket overcrowding and resource

constraints, consent decrees are a vital

enforcement tool for the states. A dec-

ision by this Court that subjects such

decrees to easy collateral attack will

seriously hamper state enforcement

efforts in this important area.

o3@-

for bringing about needed reforms in a

way that permits public entities to par-

ticipate in shaping the relief, and so

to produce a better, more practicable

decree -- subject, of course, to full

judicial review and approval in the

first instance, and continuing judicial

oversight as necessary. See generally

Schwarzschild, Public Law by Private

in: Title VII Cc t © i

the Fairness of Negotiete. Institutional

Reform, 1984 Duke L.J. 887. In addi-

tion, consent decrees save the parties

and the courts the time and expense of

large-scale litigation and spare each

party the risk of losing a “winner-

take-all” trial. Id. at 898-899. Thus,

this Court should not lightly adopt a

rule that will so decisively undercut

the efficacy of consent decrees. see

Local 93, 106 S. Ct. at 3076 n. 13 (dis-

cussing advantages of consent decrees).

C. Collateral

Attacks Under-

mine Compliance

With Court

Orders -

Collateral attacks on Title VII con-

sent decrees will create 4a substantial

risk that employers will be subject to

conflicting and inconsistent obli-

gations. Where 4a ccvsent decree autho-

rizes race-conscious procedures in pro-

motional selection, for example, and a

subsequent order in collateral liti-

gation bars any such procedures, the em-

ployer will be faced with diametrically

opposite obligations imposed by diff-

erent courts. The employer may well be

forced into contempt of one or the other

otta

court's order. As chief law enforcement

officials, amici are particularly con-

cerned that such a spectacle, arising in

the context of highly publicized cases

concerning public employment, will pro-

voke Or exacerbate race- and

gender-based divisions by forcing public

employers to “choose” which order to

honor, and so will seriously undermine

public faith in the rule of law and in

the judicial sys- tem. That result is

wisely avoided by the collateral attack

rule adopted by the majority of the

courts of appeals.

d. Collateral

Attacks

Undermine

Fairness

A rule permitting collateral attacks

by parties who have declined to inter-

vene on a timely basis is, put simply,

unfair. Rules of preclusion

have traditionally been shaped by prin-

ciples of fairness. See ©&.G., Hansberry

v. Lee, 311 U.S. at 42; United Mine

Workers v. Gibbs, 383 U.S. 715, 724

(1966); Restatement (Second) of

Judgments, § 19, com. a (1982). It is,

in turn, a fundamental principle that

those who sleep on their rights may pro-

perly have to suffer the consequences.

See, e.g., Ohio v. Kentucky, 410 U.S. at

651; Awtry v. United States, supra, 684

F.2d at 898; International Union, Allied

Industrial Workers of America v. Local

Union No. 589, 693 F.2d 666, 674 (7th

Cir. 1982) (per curiam); 1 J. Pomeroy

Equity Jurisprudence, §§ 418-419 (4th

Ed. 1918). %ndeed, it is precisely this

principle that led this Court in Penn

Central and Provident Tradesman's Bank

afte

to observe that those who intentionally

bypass an opportunity to intervene in

litigation may be subject to preclusion.

This same principle of fairness gui-

des courts in determining, in their dis-

cretion, whether a motion to intervene

is timely -- even a motion to intervene

as of right. In deciding such motions,

courts generally look to the time during

which the would-be intervenor’ should

have known of its interest before inter-

vening; the prejudice to the existing

parties as a result of the would-be in-

tervenor's delay; the prejudice to the

would-be intervenor if its motion is

denied; and any unusual circumstances in

the case. See Stallworth v. Monsanto

Co., 558 F.2d 257 (Sth Cir. 1977); South

vy. Rowe, 759 F.2d 610 (7th Cir. 1985);

x~ =

see generally NAACP v. New York, 413

U.S. 345, 365-368 (1973). Here, the

Eleventh Circuit applied these factors

and upheld the denial of the _ Res-

pondents' eleventh-hour motion to inter-

vyene in the prior proceedings, based on

the untimeliness of their motion. See

Jefferson County, 720 F.2d at

1516-1519. In so doing, that court ex-

pressly found that members of the Bir-

mingham Firefighters Association “knew

at an early stage in the [prior] pro-

ceedings that their rights could be ad-

versely affected,” 720 F.2d at 1516, and

that “having made an apparently ill-

advised decision to rely on others to

advance their interests, knowing that

they could be adversely affected, cannot

now be heard to complain." Id. at 1517.

-_7=

Despite finding that Respondents had

unjustifiably slept on their rights --

dispositive for intervention purposes --

the Eleventh Circuit went on in the dec-

ision on review here to allow Res-

pondents to achieve by collateral attack

the very same purpose sought by their

late attempt at intervention: to attack

the validity of the decree.

Not only does the Eleventh Circuit's

inconsistent approach improperly excuse

persons who fail to protect their rights

by intervening on a timely basis, it

clearly rewards them for doing so. Had

Respondents timely intervened, their

claims would have been decided in this

litigation, resolving the entire dispute

once and for all. By instead hedging

their bets, and making no timely motion

to intervene, Respondents were free to

«97

monitor the litigation closely from the

outset, to offer tactical assistance,

and even to be heard in opposition to

the consent decree at the fairness hear-

ing, making the same substantive legal

arguments’ they would have made as 4

party. Despite all of this, according

to the court below, Respondents are not

bound by the resulting decree.

Thus, Respondents had it the pro-

verbial “both ways” -- at tremendous

cost to the Petitioners, to the courts

and to all affected employees in Bir-

mingham, who continue to await final re-

solution of a long and divisive battle

that is now nearly fifteen years old.

578 F.2d 912, 916 (3d Cir. 1978) (den-

ying union's late motion to

=38-

intervene where union improperly sought

“the best of all possible worlds”).

e. Collateral

Attacks

Undermine

Comity

Finally, permitting collateral

attacks invites the very sort of juris-

dictional conflicts and duplication of

litigation that the doctrine of comity

is designed to avoid. see Local 93, 106

es. cet. et 3076 a. 3 (noting advantages

of channeling litigation concerning con-

sent decrees into single forum). Col-

lateral attacks on federal consent dec-

rees may be assigned to a different fed-

eral judge in the same judicial dis-

trict, may be filed in a different jud-

icial district altogether or may be

filed in state court. Similarly, a col-

lateral attack on a state court decree

may be filed in federal court. In any

aS@n

of these circumstances, one court may be

faced with the task of reviewing, re-

shaping or nullifying entirely the order

of another court. And, the second court

will be asked to adjudicate the validity

of the consent decree without the long

years of experience and detailed fami-

liarity that the judge who entered the

decree as an order will frequently pos-

sess. Permitting collateral attacks

thus clearly invites unseemly forum-

shopping, and even judge-shopping.*”

These results are avoided by the

majority rule barring collateral

4/ Indeed, Respondents in this case

attempted mightily, but ultimately un-

successfully, to have their collateral

attacks assigned to a different district

judge than the one who entered the con-

sent decree. J.A. 147-148; 196-201;

209-217.

-40-

attacks, for through the operation of

that rule, “restraint in the name of

comity keeps to a minimum the conflicts

between courts administering the same

law, conserves judicial time and ex-

pense, and has a salutory effect upon

the prompt and efficient administration

of justice." Bergh Vv. State of

Washington, 535 F.2d at 507 (Kennedy,

J.) (quoting Brittingham ._—_s_—iv«y

Commis:io°-er, 451 F.2d 315, 318 (5th

Cir. 1971)) (rejecting collateral attack

on judgment where party had the oppor-

tunity to intervene in prior pro-

ceedings); Goins v. Bethlehem Steel, 657

F.2d at 64 (rejecting collateral attack

aS impermissible attempt to appeal from

one district judge to another).

wiltiin

B. Barring Collateral Attacks

By Those Who Had Notice

and Failed to Intervene On

a Timely Basis Does Not

Violate Due Process

Amici fully recognize that the due

process clause imposes limits on the ex-

tent to which non-parties to previous

litigation may be bound by orders issued

in such litigation, Hansberry v. Lee,

311 U.S. at 40-41, and the rule amici

urge requires that persons be affordd

neti: e@ and an opportunity to be heard

before entry of a consent decree.

Due process demands, "in any

proceeding which is to be - accorded

finality...notice reasonably cal-

culated, under all of the circumstances,

to apprise interested parties of the

pendency of the action and afford them

an opportunity to present their

objections." Mullane v. Central Hanover

o@S-q

Bank & Trust Co., 339 U.S. 306, 314

(1950). There is, however, no “formula”

for due process. Mullane, 339 U.S. at

314. What constitutes adequate notice

and opportunity to be heard varies in

each case, where the individual's inte-

rests must be balanced against the need

for efficiency, economy and the ends

sought to be achieved by the substantive

law. See Mullane, 339 U.S. at 313-314;

American Land Co. v. ’ei:ss, 219 U.S. 47,

67 (1911). Employing this’ analysis,

courts have upheld against due process

attacks rules subjecting non-parties to

preclusion in different contexts. See

e.g., id. at 64-70 (proceedings relating

to land); Hanover National Bank v.

Moyses, 186 U.S. 181, 190-192 (1902)

(bankruptcy proceedings).

-43-

Due process was more than satisfied

in this case because of the Respondents’

long-spurned opportunity to intervene in

the prior action. The Eleventh Circuit

expressly recognized that the BFA's mem-

bers knew that their interests could be

adversely affected, yet chose not to

intervene. Indeed, Respondents’ actual

notice of the prior proceedings from an

early point appears not to be contested

in this case -- ror is it likely that it

could be, as cases challenging public

employment practices as discriminatory

typically generate widespread media

attention. See, oe Culbreath v.

Dukakis, 630 F.2d at 18; 21. Res-

pondents likewise had notice of the pro-

posed consent decree and the fairness

hearing, well in advance of that

hearing. Despite such notice,

-~44-

Respondents unjustifiably declined to

move for intervention at any point until

after the fairness hearing, on the eve

of adoption of the decree.>/’

In these circumstances, Respondents’

notice of the lawsuit and_ several

year-long opportunity to intervene sat-

isfy due process, for it is the oppor-

tunity to be heard that is’ crucial.

Boddie v. Connecticut, 401 U.S. 371, 378

5/ Amici do not advocate any bright

line test for determining when a

non-party has had a meaningful oppor-

tunity to intervene. Consistent with

Mullane, such a determination must be

made on a case-by-case basis. Fed. R.

Cae. P. 24 provides an appropriate

mechanism for determining timeliness in

each case, and this Court has recognized

that the district judge, who is closest

to the facts of each case, enjoys sub-

Stantial discretion in evaluating the

timeliness of a motion to intervene,

subject to review for abuse of dis-

cretion. See NAACP v. New York, 413

U.S. at 366-368. Here, the district

judge made that determination and his

denial of the motion to intervene was

upheld on appeal.

(1971); see Armstrong v. Manzo, 380 U.S.

545, 552 (1965). Indeed, this Court has

recognized that “[dJue process does not,

of course, require that the defendant in

every civil case actually have a hearing

on the merits,” and has accordingly held

that “the hearing required by due pro-

cess is subject to waiver." Boddie, 401

U.S. at 378-79. Respondents may fairly

be said to have waived their opportunity

to intervene in this case.

Although amici believe the oppor-

tunity to intervene is itself sufficient

to satisfy due process, it is worth

noting that in this case Respondents

were also accorded a full opportunity to

be heard at the fairness hearing, where

their present attorney, in fact, made

=fin

the same arguments attacking the decree

that he now asserts in these collateral

proceedings. Thus, well more than the

constitutional minimum was afforded here.

Il. AN ALTERNATIVE RULE REQUIRING

MANDATORY JOINDER IS WHOLLY

INAPPROPRIATE

As set forth above, amici believe

that persons with notice and an oppor-

tunity to intervene on a timely basis

before entry of a consent decree should

be bound, as a matter of preclusion

law. Amici thus believe that a motion

to intervene pursuant to Fed. R. Civ. P.

24 is the appropriate means for inter-

ested persons to participate in pro-

ceedings that may affect them. The sug-

gestion was made to this Court last Term

in Marino v. Ortiz, that mandatory join-

der under Fed. R. Civ. P. 19 is instead

the appropriate vehicle. Under

{

at3a

this view, if parties to a consent dec-

ree wish to assert its preclusive effect

against other persons, it is the par-

ties' responsibility to join such per-

sons in the action. As amici demon-

strate below, that suggestion is deeply

flawed, and has especially grave impli-

cations for Title VII litigation.

A. Mandatory Mass Joinder of

Potentially Affected

Persons Will Create

Serious Practical Problems

That Are Avoided By

Voluntary Intervention

The premise of the mandatory joinder

argument is that no preclusive effect

may be accorded Title VII consent dec-

rees unless affected persons are joined

as parties. Should this Court adopt

such a rule, the inevitable effect will

be that parties instituting Title VII

litigation will believe that, in order

to obtain meaningful, final and

-48-

binding relief, they must join as par-

ties anyone who may one day claim to be

affected by that relief.

The practical consequences of such a

rule are staggering. The puzzling

threshold question for one seeking to

vindicate equal employment opportunity

rights under Title VII will be just whom

to sue. While the employer is’ the

natural defendant, a mandatory joinder

rule would require suing many, or even

all, fellow employees as well. If the

case concerns promotional practices, how

is the plaintiff to know who may one day

aspire to a particular promotion? If

the case concerns entry level jobs, how

is the plaintiff to know who may one day

seek such a_- position? By contrast,

requiring interested persons with notice

of the plaintiff's suit to make a timely

o49e

motion to intervene wholly eliminates

this uncertainty. Such a course appro-

priately leaves it to those who, with

notice, believe that their interests are

at stake to protect those interests.

Moreover, compelling Title VII

plaintiffs to join all those who might

conceivably claim to be affected parties

may mean suits’ involving hundreds or

even thousands of people, especially in

cases involving a large public work-

force. Compelled joinder of this magni-

tude will impose a crushing financial

burden on a plaintiff as a condition of

vindicating the rights protected under

Title VII. The mere cost of duplicating

and serving process on so many defen-

dants may well itself be prohibitive.

-50-

Nor are the financial costs limited

to the plaintiff. Those involuntarily

joined as defendants, too, will be for-

ced to incur costs -- the cost of re-

taining an attorney, and then the cost

of either participating in discovery,

motion practice and trial or, alter-

natively, litigating to be dismissed as

an improper or unnecessary party de-

fendant. Indeed, mandatory joinder of

large numbers of co-employees is likely

to spawn a costly, burdensome new subset

of motions concerning who is and is not

a properly joined co-defendant under

Title VII. This is especially so be-

cause many involuntarily joined emplo-

yees will have strong incentives to seek

dismissal: to avoid the costs and time

involved in the litigation, to avoid po-

tential liability as a co-defendant

-5]l-

(such as for attorneys’ fees) and, per-

haps most importantly, to avoid being

bound, and instead to remain free to

institute a second, separate lawsuit.

Furthermore, the costs of mandatory

joinder cannot be measured in dollars or

judicial time alone. Rather, mandatory,

mass joinder of co-defendants is likely

to exact a crenendeus cost in workplace

morale, collegiality and productivity --

an area of great concern to states, as

public employers and administrators of

public personnel systems. Compelling

plaintiffs to sue fellow employees en

masse means compelling plaintiffs to

impose the substantial burdens and costs

of litigation on their fellow workers,

and in effect, if not intent, to charge

their colleagues with wrongdoing. The

oie

unavoidable effect of involuntary mass

joinder is to equate those alleged with

perpetrating discrimination with those

who may have benefited from such discri-

mination. Such compelled joinder can

only provoke resentment, divisivenes:

and disruption.

A mandatory joinder rule will, in

short, plainly undermine the achievement

of Title VII's important remedial pur-

poses, ind ultimately chill the filing

of Title VII actions. As it has in the

past, this Court should decline to adopt

procedural rules that are “inconsistent

with the underlying purposes of the sta-

tute." Occidental Life Insurance Co. v.

EEOC, 432 U.S. 355, 367 (1977) (dec-

lining to apply short state statute of

limitations to Title VII); accord Oscar

Mayer & Co. v. Evans, 441 U.S. 750, 763

(1979).

Nor would these serious’ problems

evaporate if the burden involuntarily to

join co-employees falls to the defendant

employer, instead of the plaintiff. The

specter of an employer dragging scores

of its employees into litigation --

whether as co-defendants or adverse par-

ti.s -- does nothing to mitigate the

problems of dividing the employee popu-

lation and undermining morale, nor the

problem of imposing financial costs on

the involuntarily joined employees.

Instead, it may well only exacerbate

these problems by driving a wedge be-

tween the employer and the employees

whom it involuntarily brings into court

-- and ultimately making far more diffi-

cult the task of reconciling all

-54-

employees to necessary changes in the

workplace.

Self-selected intervention by those

with notice of the preceedings who wish

to participate does not create these

risks. It does not impose the poten-

tially huge financial and interpersonal

costs of mass joinder on a plaintiff,

nor does it visit the unwanted burden

and expense of litigation on involun-

tarily Joined ind v’ ual defendants.

Instead, only those employees wishing to

assert their own interests will inter-

vene. Provided that their motion to do

SO iS asserted on a timely basis, it is

likely to be, and ought to be, granted.

See, e.g., Howard v. McLucas, 782 F.2d

956, 959-60 (llth Cir. 1986).

-~55-

B. Neither Joinder of a Defe-

ndant Class, Nor Joinder

of Unions, Will Resolve

The Serious Practical

Problems with Mandatory

Joinder. —

Many of the problems caused by a

rule requiring mandatory joinder of all

interested individuals might appear, at

first blush, to be avoidable through the

use of defendant class actions or the

joinder of unions as_ defendants. On

closer examination, however, these app-

roaches prove to %e no panacea for the

problems of mandatory joinder. Indeed,

eithae approach would likely itself gen-

erate a burdensome series of

side-disputes that would delay and dis-

tract from the resolution of the central

Title VII claims.

is Defendant Class Ac-

tions Would Be

Unworkable

Defendant class actions in Title VII

cases would be unworkable for a number

of reasons. First, it may be difficult

to find a defendant class representative

who is willing and able to undertake the

burden and expense of the litigation.

This problem is exacerbated where, as

here, neither the putative class repre-

sentative, nor the class members, have

any incentive to be bound by the resulcs

of the litigation. To the contrary, em-

ployees opposed to Title VII relief, in

order to preserve their freedom to bring

later collateral attacks on the relief

ultimately agreed to or awarded, will

more likely purposely avoid -- indeed,

resist -- party status. E.g., Bolden

.. lvani j » S76 F.2¢

at 916.

Moreover, a person named as_ repre-

sentative of a defendant class has every

incentive to provide inadequate repre-

sentation, knowing that this will pave

the way for later collateral attacks by

class members arguing that they were in-

adequately represented in, and thus not

bound by, the earlier litigation. These

attacks, if successful, will cerult in

relief from the consent decree that

would benefit not only the attackers,

but all existing employees, including

the original class representatives. In

terms of both resources and results,

then, unwilling defendant class_ repre-

sentatives have everything to gain and

nothing to lose from providing weak

representation.

-58-

Defendant class representatives de-

Signated by plaintiffs will face addi-

tional difficulties in providing ade-

quate representation, because of the

likely divergence of interests within

the defendant class. Class members' in-

terests will vary according to their

seniority, rank, department, and status

as a present, as opposed to future, emp-

loyee. Those defendant class members

with less to lose will at some point

come to favor settlement, whereas those

with the most to lose will favor liti-

gation to the bitter end. It therefore

appears likely that, unless proper sub-

classes are designated, representation

will be inadequate and the consent de-

cree will remain subject to later attack.

aSGa

Yet it is defendant class members

who will be in the best position to sort

themselves into adequately repre-

sentative subclasses. Under a mandatory

joinder approach however, they will have

little incentive to do so, knowing that

inadequate representation will preserve

their freedom to bring later attacks.

It is only where interested persons with

notice and an opportunity to intervene

are held to be bound that those persons

will have any incentive to designate

adequate class representatives.

None of these serious problems is

posed where interested employees

themselves seek to intervene, and choose

to do so as a class. Im such a circum-

stance, they will select their own

representative, they will divide into

«Gin

appropriate subclasses if necessary, and

their chosen representatives will be

fully motivated to provide full and

adequate representation.

2% Mandatory Joinder of

Unions Would Also Be

Unworkable

It is likewise no answer to suggest

that Title VII plaintiffs may easily

bind all interested parties simply by

suing the union. Such suits’ will

present their own particular problems in

the Title VII context.

Most important, the adequacy-of-

representation problems identified above

are not allev.ated simply by suing the

union. The represented class will still

be divided along lines of rank, sen-

iority, and department, and it is open

to question whether a union composed of

att.

existing employees would adequately rep-

resent the interests of future non-

minority applicants for employment.

Additionally, there is the potential for

divergence of interests between the

union itself and its own members. The

union may face back pay and attorney's

fee liability under 42 U.S.C. §§ 2000e-5

(g), (k), and consequently the union may

have a strong incentive to settle the

case quickly and without any admission

of involvement in past discrimination.

Union members, on the other hand, may

feel less directly affected by such lia-

bility and more interested in avoiding

prospective relief at any cost; they

thus will favor litigation over

settlement.

afifie

Indeed, this Court has recently

recognized that unions and Similar

associations:

will not always be able to re-

present adequately the inte-

rests of all their injured

members. Should an association

be deficient in this regard, a

judgment won against it might

not preclude subsequent claims

by the association's members

without offending due _ process

principles. And were we pre-

sented with evidence that such

a problem existed . . ., we

would have to consider how it

might be alleviated.

International Union, United Automobile

Workers v. Brock, 477 U.S. 274, 290

“7 7R6). Because the mandatory joinder

approach presents’- potential for in-

adequate representation, this Court

should “consider how it might be alle-

viated" and adopt a mandatory inter-

vention approach in this case. The al-

ternative is to leave to the _ lower

courts the burdensome task of dealing

widen

with the spate of collateral attacks

alleging inadequate representation that

are likely to ensue from the adoption of

a mandatory joinder approach.

CONCLUSION

A rule barring collateral attacks by

those who have had and declined a fair

opportunity to intervene in an action on

a timely basis promotes compelling in-

terests served by preclusion law, satis-

fies due process requirements and appro-

priately relies on self-selected inter-

vention by interested parties. An al-

ternative rule requiring mandatory join-

der, by contrast, is impractical, bur-

densome for all, and inconsistent with

the policies underlying Title VII.

For all of the foregoing reasons,

amici respectfully urge that the

-64-

judgment of the Eleventh Circuit be

reversed.

Respectfully submitted,

JAMES M. SHANNON

Attorney General

Commonwealth of Massachusetts

ALICE DANIEL

Deputy Attorney General

Counsel of Record

JANE S. SCHACTER

PETER SACKS }

Assistant Attorneys General

One Ashburton Place

Boston, MA 02108

(617) 727-2200

® Theodore Lund, a student in the

summer program of the Massachusetts

Department of the Attorney General,

assisted counsel in the preparation of

this brief.

ROBERT M. SPIRE

Attorney General of Nebraska

BRIAN MCKAY

Attorney General of Nevada

STEPHEN E. MERRILL

Attorney General of New Hampshire

CARY EDWARDS

Attorney General of New Jersey

ROBERT ABRAMS

Attorney General of New York

ANTHONY J. CELEBREZZE, JR.

Attorney General of Ohio

ROBERT H. HENRY

Attorney General of Oklahoma

JAMES E. O'NEIL

Attorney General of Rhode Island and

Providence Plantations

T. TRAVIS MEDLOCK

Attorney General of South Carolina

JIM MATTOX

Attorney General of Texas

JEFFREY AMESTOY

Attorney General of Vermont

GODFREY R. deCASTRO

Attorney General of Virgin Islands

MARY SUE TERRY

Attorney General of Virginia

CHARLIE BROWN

Attorney General of West Virginia

DONALD J. HANAWAY

Attorney Generali of Wisconsin

JOSEPH B. MEYER

Attorney General of Wyoming

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.