# Amicus Curiae Brief — Martin v. Wilks > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0372%3A17 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1989 - **Citation:** 490 U.S. 755 ## Text AD (10) (Z __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 ? ww 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 Wo 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 12 12 15 17 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 21 23 26 32 33 39 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 A. 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- 42 47 48 56 57 61 64 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, 19 18 44 13 12 18 14 21 41 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- 18 43 45 21 22 14 34 54 34 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) : 34 19 31 24 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 z ‘ 4 " * . 5 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 % : ‘ & % 3 m $ : 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 eo =—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 5 =|= 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 2 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- es LS 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 it SS 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. a. (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. mm 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0372%3A17. Public record. Not legal advice.