Petitioners Brief — Zant v. Corn

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Nos. nl. 87- o 87-1668

IN THE

Supreme Court of the United

OCTOBER TERM 1988

JOHN W. MARTIN, ef al.,

y, Petitioners,

ROBERT K. WILKS, ef al.,

Respondents.

RICHARD ARRINGTON, JR., ef al., ro

». Petitioners,

ROBERT K. WILKS, ef ai.,

Respondents.

THE PERSONNEL BOARD OF JEFFERSON COUNTY, ef al.,

y, Petitioners,

ROBERT K. WILKS, ef ai.,

Respondents.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR PETITIONERS

JOHN W. MARTIN, et ai.

ROBERT D. JOFFE

Counsel of Record

WILLIAM L. ROBINSON THOMAS D. BARR

RICHARD T. SEYMOUR ROBERT F. MULLEN

STEPHEN L. SPITZ PAUL C. SAUNDERS

LAWYERS’ COMMITTEE FOR ALDEN L. ATKINS

ey RIGHTS UNDER LAW MARK A. SIROTA

merty tga N.W. JAMES E. FLEMING

(Suite ) CRAVATH, SWAINE & MOORE

Washi , D.C. 20005 One Chase Manhattan Plaza

(202) 3 1-1212 New York, New York 10005

SUSAN W. REEVES (212) 428-1000

REEVES & STILL

714 South 29th Street

Birmin , Alabama 35233

Ga oes ' Attorneys for Petitioners

August 18, 1988 John W. Martin, et al.

QUESTION PRESENTED

May persons affected by court-approved consent decrees

containing race-conscious relief challenge those decrees in a

collateral lawsuit when they had notice and the opportunity to

be heard before the entry of those decrees?

PARTIES TO THE PROCEEDINGS BELOW

Private Plaintiffs

Robert K. Wilks

James A. Bennett

Birmingham Association

of City Employees

Charles E. Carlin

Ronnie J. Chambers

Floyd E. Click

Joel A. Day

Lane L. Denard

John E. Garvich, Jr.

Dudley L. Greenway

James W. Henson

Gerald L. Johnson

Danny R. Laughlin

Robert B. Millsap

James D. Morgan

Gene E. Northington

Carlice E. Payne

Howard E. Pope

Vincent J. Vella

Phillip H. Whitley

Marshall G. Whitson

David H. Woodall

Plaintiff-Intervenor

United States of America

City Defendants

Richard Arrington, Jr.

City of Birmingham

Personne! Board Defendants

Personnel Board of Jefferson

County

Roderick Beddow, Jr.

Joseph W. Curtin

James W. Fields

Patricia Hoban-Moore

James B. Johnson

Henry P. Johnston

Hiram Y. McKinney

Defendant-Intervenors

(the Martin Petitioners)

John W. Martin

Sam Coar

Major Florence

Charles Howard

Ida McGruder

Eugene Thomas

TABLE OF CONTENTS

QUESTION PRESENTED .............

PARTIES TO THE PROCEEDINGS BELOW ... . .

TABLE OF CONTENTS .............

TABLE OF AUTHORITIES ............

OPINIONS BELOW

SE aereeme—e- so 5 6 8 6 ce 0 eo

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED

A. Birmingham’s History of Dis-

Ura ak 66 66 6 6 0 eo

B. The Litigation Leading to the Con-

I 6 6 6 = 6 6 0 0 0 0

C. TheConsent Decrees ........

D. The Reverse Discrimination Litiga-

I Ee 6 5 a cs 0 6 0 to

E. The DecisionBelow .........

I. BECAUSE PLAINTIFFS WERE GIVEN

NOTICE AND THE OPPORTUNITY TO BE

HEARD BEFORE THE ENTRY OF THE CON-

SENT DECREES, THEY SHOULD NOT BE

ALLOWED TO ATTACK THE DECREES IN

THESE COLLATERAL LAWSUITS ......

iii

Because Plaintiffs Were Given

Notice and a Timely Opportunity To

Intervene in the Consent Decree

Litigation, Their Collateral Attack

b. The collateral attacks

here create the risk that

the City would be subject

to inconsistent obliga-

Page

in These Cases Should Be Barred 15 mare. kT.

1. Persons with notice that a — ee

pending lawsuit may affect judicial resources by

warty Aveo itiaing sues a

r ec after a

rights inalateraction ..... 15 oan ‘tale opportenity for

2. Plaintiffs could have inter- all parties tobe heard .. .

oo hag og vot cs d. Allowing collateral at-

preshe tacks on consent decrees

decrees, but they did not do so 18 i eneieinene oth the

i finality accorded to fully

There Are Compelling Reasons for In (

Barring Collateral Attacks by Per- litigated judgments

sons Who Were Given Notice and 4. Requiring persons with notice

the Opportunity To Be Heard 20 of a proposed decree to inter-

1. The consent decrees here were vene in that litigation is fair to

approved only after careful them and to the parties to the

judicial scrutiny and therefore decree, and it resolves the law-

should not be treated as just a fulness of the decree most effi-

voluntary affirmative action eee

plan... . +e eee eee. 20 The Rule Barring Collateral Attacks

2. Allowing collateral attacks on on Consent Decrees by Persons Who

‘consent decrees would dis- Had Notice and the Opportunity To

courage the settlement of Title Be Heard Is Consistent with the Re-

ee ee 21 quirements of Due Process ..... .

3. Collateral attacks on litigated Il. IN ANY EVENT, PLAINTIFFS’ DISCRIMINA-

consent decrees violate settled ) TION CLAIMS WERE TRIED BELOW .... .

principles of comity and fail to A. Both Sides Briefed the Issue of the

accord due respect to federal Validity of the Consent Decrees in

court judgments ........ 22 Their Pre-Trial Memoranda .....

a. Collateral attacks violate

the respect that courts ac-

cord to prior judgments .. 23

B. Evidence Was Introduced at Trial on

the Issue Whether the Consent

Decrees Were Lawful or Violated

the Rights of the Plaintiffs ..... .

C. The District Court Explicitly Ruled

on the Very Question That the Court

of Appeals Remanded for Its Con-

ES a

eo Pea ee ee ee ee

TABLE OF AUTHORITIES

CASES:

Adams v. Morton, 581 F.2d 1314 (9th Cir.

1978), cert. denied, 440 U.S. 958 (1979) . .

Albemarle Paper Co. v. Moody, 422 U.S. 405

GUE 6 ole 6 we SMe ele 616 Ree

Alexander v. Gardner-Denver Co., 415 U.S.

EE. hes 8 de 8 Ee, Oe ae

Apex Fountain Sales, Inc. v. Kleinfeld, 818

ae seew Coe Ce. 1967) . wi ww ee

Armstrong v. Board of Educ. , 333 F.2d 47 (Sth

ne ee

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

Austin v. County of Dekalb, 572 F. Supp. 479

8 LS ae ae ee

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

1976), cert. denied, 429 U.S. 921 (1976) . .

In re Birmingham Reverse Discrimination

Employment Litigation, 833 F.2d 1492

(11th Cir. 1987), cert. granted, 108 S. Ct.

FO ee a ae

In re Birmingham Reverse Discrimination

Employment Litigation, 39 Fair Empl.

Prac. Cas. (BNA) 1431 (N.D. Ala. Dec.

20, 1985), rev’d, 833 F.2d 1492 (11th Cir.

1987), cert. granted, 108 S. Ct. 2843

eS se a a a a eee

Black and White Children of the Pontiac School

Sys. v. School Dist., 464 F.2d 1030 (6th

Cit. Tovar GOP GPE) iw ttt ee es

Blonder-Tongue Labs., Inc. v. University of

Illinois Foundation, 402 U.S. 313 (1971)

vii

Page

17, 21, 34

17, 23, 29

15, 24, 25

28, 30

Bolden v. Pennsylvania State Police, 578 F.2d

SED ww a'c es wes se + 0

Brittingham v. Commissioner, 451 F.2d 315

ees eee

Burns v. Board of School Comm’rs, 437 F.2d

Carson v. American Brands, Inc., 450 U.S. 79

EE 66! Guar ars oe om

Christiansburg Garment Co. v. EEOC, 434

a ko es ee 6b ee oe 8 oe

City of Birmingham v. Monk, 185 F.2d 859 (Sth

Cir.), cert. denied, 341 U.S. 940 (1950)

Common Cause v. Judicial Ethics Comm. , 473

F. Supp. 1251 (D.D.C. 1979) .......

Corley v. Jackson Police Dep’t, 755 F.2d 1207

a ee ee

Culbreath v. Dukakis, 630 F.2d 15 (1st Cir.

eee ee ee ee ae ee ee ee

Cummins Diesel Michigan, Inc. v. The Falcon,

305 F.2d 721 (7th Cir. 1962) ........

Dawson v. Pastrick, 600 F.2d 70 (7th Cir.

rr eas Ne ee eee ee

Delaware Valley Citizens’ Council for Clean

Air v. Pennsylvania, 755 F.2d 38 (3d Cir.),

cert. denied, 474 U.S. 819 (1985) .....

Dennison v. City of Los Angeles Dep’t of Water

& Power, 658 F.2d 694 (9th Cir. 1981)

Deposit Bank v. Frankfort, 191 U.S. 499

ae ee eee ee

Dunn v. Carey, 808 F.2d 555 (7th Cir. 1986) . .

viii

_ ——* <— > x

15, 21, 26

EEOC v. American Tel. & Tel. , 506 F.2d 735

SR EE b> bie oo 6 ele eee se oe

EEOC v. American Tel. & Tel., 556 F.2d 167

(3d Cir. 1977), cert. denied, 438 U.S. 915

EE hee Wied =n be GA hw} we bid.d

EEOC v. McCall Printing Corp., 633 F.2d

eee eee

Ensley Branch, NAACP v. Seibels, 616 F.2d

812 (Sth Cir.), cert. denied, 449 U.S. 1061

ERE Se ee ee ee

Ensley Branch, NAACP v. Seibels, 13 Empl.

Prac. Dec. (CCH) 411,504 (N.D. Ala. Jan.

10, 1977), aff'd in part and rev'd in part,

616 F.2d 812 (Sth Cir.), cert. denied, 449

CG ee ee

Exxon Corp. v. Department of Energy, 594 F.

Supp. 84 (D. Del. 1984) ..........

Farmers Educ. & Coop. Union v. WDAY, Inc.,

Eg ee eee

Feller v. Brock, 802 F.2d 722 (4th Cir. 1986)

Firebird Soc’y of New Haven, Inc. v. New

Haven Bd. of Fire Comm’rs, 66 F .R.D. 457

(D. Conn.), aff'd mem. , 515 F.2d 504 (2d

Cir.), cert. denied, 423 U.S. 867 (1975)

Firefighters Local 1784 v. Stotts, 467 U.S. 561

a er ere a eee

Freeze v. ARO, Inc., 503 F. Supp. 1045 (E.D.

nn. 44 Oks osu 6 a's 6 6&6

Gober v. City of Birmingham, 373 U.S. 374

ee ee ee a eas ae a SS e

Goins v. Bethlehem Steel Corp., 657 F.2d 62

(4th Cir. 1981), cert. denied, 455 U.S. 940

+ As oe eek ee oo eo 4

24, 25, 29

14, 24, 25

Grann v. City of Madison, 738 F.2d 786 (7th

Cir.), cert. denied, 469 U.S. 918 (1984)

Gregory-Portland Indep. School Dist. v. Texas

Educ. Agency, 576 F.2d 81 (Sth Cir.

1978), cert. denied, 440 U.S. 947 (1979) . .

Howard v. McLucas, 782 F.2d 956 (11th Cir.

Pe. one woke «oa ew ree &-e o

International Bhd. of Teamsters v. United

States, 431 U.S. 324 (1977) .....----

Jefferson v. Connors Steel Co., 25 Empl. Prac.

Dec. (CCH) 4 31,602 (N.D. Ala. Jan 19,

a ee err ee

Johnson v. North Carolina Highway Patrol, 91

F.R.D. 406 (E.D.N.C. 1980) .....-.--

Johnson v. Transportation Agency, 107 S. Ct.

7"). ee

Johnson v. Yeilding, 165 F. Supp. 76 (N.D.

SEE sg k.o ee eeee sr tesewee

Kirkland v. New York Dept. of Correctional

Servs., 711 F.2d 1117 (2d Cir. 1983), cert.

denied, 465 U.S. 1005 (1984) ......-

Kremer v. Chemical Constr. Co., 456 U.S. 461

0 SS ee ee ee

Local 28, Sheet Metal Workers’ Int'l Ass'n v.

EEOC, 1065S. Ct. 3019 (1986) ......-

Local 93, Int’! Ass’n of Firefighters v. City of

Cleveland, 106 S. Ct. 3063 (1986) .....

Logan v. Zimmerman Brush Co. , 455 U.S. 422

CE diss 4 wit & ce 66 eb We ee. e

Marine Power & Equip. Co. v. United States,

594 F. Supp. 997 (D.D.C. 1984) .....

Marino v. Ortiz, 806 F.2d 1144 (2d Cir. 1986),

aff'd, 108 S. Ct. 586 (1988) (per curiam) . .

Marino v. Ortiz, 108 S. Ct. 586 (1988) (per

oS ae ee ae ee ee

Mathews v. Eldridge, 424 U.S. 319 (1976)

Montana v. United States, 440 U.S. 147 (1979)

Morrisey v. Brewer, 408 U.S. 471 (1972)

Mullane v. Central Hanover Bank & Trust Co.,

399 U.S. S06 (ISSO) . . 2 ee ee ee ee

National Equip. Rental, Lid. v. Szukhent, 375

I i Be yy

National Licorice Co. v. NLRB, 309 U.S. 350

ne whe o 6} oe 0 Se 6 5 6 we 0 8

National Wildlife Fed’n v. Gorsuch, 744 F.2d

963 (96 Cie. 1964) .....---:- Oa a

Nevilles v. EEOC, 511 F.2d 303 (8th Cir.

EE ae a

O’Burn v. Shapp, 70 F.R.D. 549 (E.D. Pa.),

aff'd mem., 546 F.2d 417 (3d Cir. 1976),

cert. denied, 430 U.S. 968 (1977) .....

Order of R.R. Telegraphers v. Railway Express

Agency, Inc., 321 U.S. 342 (1944) .....

Penn-Central Merger and N & W Inclusion

Cases, 389 U.S. 486(1968) ........

Pennsylvania v. Rizzo, 530 F.2d 501 (3d Cir.

ws. soe bale © 8 Blea eo 8 © ©

Prate v. Freedman, 430 F. Supp. 1373

(W.D.N.Y.), aff'd mem., 573 F.2d 1294

(2d Cir. 1977), cert. denied, 436 U.S. 922

DT teansbeebwess Suess

Page

14, 32-34

23, 26, 27,

30-31

32-33

14, 32

17, 29, 31-32

15, 26, 29

12, 16, 28-30,

Provident Tradesmens Bank & Trust Co. v.

Patterson, 390 U.S. 102 (1968) .....-.-

Safir v. Dole, 718 F.2d 475 (D.C. Cir. 1983),

cert. denied, 467 U.S. 1206 (1984) .....

Schmieder v. Hall, 545 F.2d 768 (2d Cir.

1976), cert. denied, 430 U.S. 955 (1977) . .

Shuttlesworth v. City of Birmingham, 382 U.S.

if ae ere ea a oe

Shuttlesworth v. City of Birmingham, 376 U.S.

ASS ee

Shuttlesworth v. City of Birmingham, 373 U.S.

, 1 ee ee

In re Shuttlesworth, 369 U.S. 35 (1962)

Society Hill Civic Ass’n v. Harris, 632 F.2d

1045 (34 Cir. 1980) ........-.-. |

Stotts v. Memphis Fire Dep’t, 679 F.2d 541

(6th Cir. 1982), rev’d sub nom.

Firefighters Local 1784 v. Stotts, 467 U.S.

fee ee

Striff v. Mason, 849 F.2d 240 (6th Cir. 1988)

System Fed’n v. Wright, 364 U.S. 642 (1961)

Terry v. Elmwood Cemetery, 307 F . Supp. 369

(N.D. Ala. 1969)... 2.2 ee eee eee

Thaggard v. City of Jackson, 687 F.2d 66 (Sth

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

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

Treadway v. Academy of Motion Picture Arts

& Sciences, 783 F.2d 1418 (9th Cir. 1986)

Treasure Salvors, Inc. v. Unidentified Wreck,

459 F. Supp. 507 (S.D. Fla. 1978), aff'd

sub nom. Florida Dep't of State v. Treasure

Salvors, Inc., 621 F.2d 1340 (Sth Cir.

xii

15, 21, 26, 29

1980), aff'd in part and rev'd in part, 458

FS. ee

United Air Lines v. Evans, 431 U.S. 553 (1977)

United States v. Alexandria, 614 F.2d 1358

Se ED oa Sed 6 oc@ orb 0-0 © © «

United States v. Allegheny-Ludlum Indus. , 63

F.R.D. 1 (N.D. Ala. 1974), aff'd, 517

F.2d 826 (Sth Cir. 1975), cert. denied, 425

UF Sl Se

United States v. Allegheny-Ludlum Indus. , 517

F.2d 826 (Sth Cir. 1975), cert. denied, 425

PR 0.) 6 eee ee ee

United States v. Barco Corp., 430 F.2d 998

ee a ee

United States v. City of Miami, 664 F.2d 435

(Former Sth Cir. 1981) (enbanc) ......

United States v. Jefferson County, 720 F.2d

IPR ()) Le Aa) :)

United States v. Jefferson County, 28 Fair

Empl. Prac. Cas. (BNA) 1834 (N.D. Ala.

Aug. 18, 1981), aff'd, 720 F.2d 1511 (11th

Se es a ee

0 a a a a eo a oe

e469 «6 s.0.6 0 6.0 668i Boe 0.0 0

United States v. Texas, 330 F. Supp. 235

(E.D. Tex.), aff'd and modified, 447 F.2d

441 (Sth Cir. 1971), cert. denied, 404 U.S.

ee a ee ee

United States v. Yonkers Bd. of Educ., 801

F.2d 593 (2d Cir. 1986) ..........

xiii

United Steelworkers v. Weber, 443 U.S. 193

ee eee ee

University of Tennessee v. Elliott, 106 S. Ct.

9220 (1986). ww tet te ts

Vulcan Soc’y of Westchester County, Inc. v.

Fire Dep’t of White Plains, 505 F. Supp.

955 (S.D.N.Y. 1981) ....----+-+e-

Wainwright v. Sykes, 433 U.S. 72 a

Walker v. City of Birmingham, 388 U.S. 307

FS ee oe A eo

Woods v. Florence, No. CV-82-PT-2272-S,

slip op. (N.D. Ala. Jan. 31, 1985) ....-

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS:

8. Gomes. Aaeme. Vw te tees

U.S. Const. Amend. XIV ......- sees

28 U.S.C. BISA 2. nee Se eee ees

J EY 2 Ae ee eee ee

9B U.S.C. S2IBI@) ... we ee eee eens

42 U.S.C. § 2000e-2(a) . ee ee ee es

42 U.S.C. § 2000e-S(fJ(1) 2 ee ee ee es

29 C.F.R. § 1608.1(b) (1986) ......-.---

29 C.F.R. § 1608.8 (1986) .......--->

Fed. R. Civ. P. 24(4aM2) .. 2 ee eee eee

. eS} & Sere a ee

Eleventh Circuit Rule 34-4(g) ......-.-.-.

XiV

OTHER AUTHORITIES:

F. James & G. Hazard, Civil Procedure §

11.31 (26 ed. 1977) 2 ww ww eee eee

1B J. Moore, J. Lucas & T. Currier, Moore’s

Federal Practice 10.409 [5] (2d ed. 1984)

B. Schlei & P. Grossman, Employment Dis-

crimination Law (2d ed. 1983) ......-.

The New York Times, June 4, 1985 at A28

Note, Preclusion of Absent Disputants to Com-

pel Intervention, 79 Colum. L. Rev. 1551

nT, <a e-o's a @ 2 6's 0b te bw ee

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Eleventh Circuit is reported as Jn re Birmingham Reverse Dis-

crimination Employment Litigation, 833 F.2d 1492 (11th Cir.

1987). See Pet. App. 3a-24a.' The initial opinion of the dis-

trict court is reported as In re Birmingham Reverse Discrimina-

tion Employment Litigation, 39 Fair Empl. Prac. Cas. (BNA)

1431 (N.D. Ala. Dec. 20, 1985). See Pet. App. 27a-68a. The

district court’s additional findings (Pet. App. 69a-76a) are not

reported.”

JURISDICTION

The opinion of the court of appeals was filed on Decem-

ber 15, 1987. Pet. App. 3a. The court of appeals denied peti-

tions for rehearing and suggestions of rehearing in banc on

January 25, 1988. Pet. App. 252. The Petition for a Writ of

Certiorari in No. 87-1614 was timely filed on March 30, 1988,

and the Petitions for a Writ of Certiorari in Nos. 87-1639 and

87-1668 were timely filed on March 31 and April 1, 1988,

respectively. The Petitions were granted and consolidated on

June 20, 1988.

This Court has jurisdiction pursuant to 28 U.S.C. §§

1254(1) & 2101(c).

1 The form of citations is as follows: the Appendix to the Petitions

for a Writ of Certiorari is cited as “Pet. App.”; the Joint Appendix is cited

as “J.A.”; exhibits to the 1985 trial are cited as “PX” (plaintiffs’ exhibit) or

“DX” (defendants’ exhibit); the transcript and exhibits from the 1979 trial

were admitted in the 1985 trial (see J.A. 403-08) as DX 1979 and DX 1980

respectively and are cited as “1979 trial PX” or, for the trial transcript,

“[month] 1979 tr.”; and the record in the court of appeals is cited as

“R[{volume]-[document number]-[page]”.

2 The district court’s opinion and findings are found in four places in

the record: the trial transcript (Pet. App. 27a-36a); Defendants Richard Ar-

rington, Jr., the City of Birmingham and Defendant-Intervenors’ Proposed

Findings of Fact and Conclusions of Law (Pet. App. 37a-66a); Plaintiffs’ and

United States’ Motion to Amend Judgment (Pet. App. 69a-74a); and the dis-

trict court’s January 6, 1986 order (Pet. App. 75a-76a). For the Court’s con-

venience, Petitioners combined these findings at pages 77a to 109a of the

Appendix to the Petitions for a Writ of Certiorari.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The constitutional provisions and statutes involved are the

Fifth and Fourteenth Amendments to the United States Consti-

tution and § 703(a) of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-2(a). They are set forth at pages 1a to 2a of the Ap-

pendix to the Petitions for a Writ of Certiorari.

STATEMENT OF THE CASE

Petitioners John W. Martin, et al. (“defendant inter-

venors” in this case below and the “Martin Petitioners” here),

the City of Birmingham (the “City”), the Personnel Board of

Jefferson County (the “Personnel Board”) and the United States

have been embroiled for over fourteen years in litigation con-

cerning the City’s employment practices. The litigation had its

genesis in January 1974 when the Martin Petitioners com-

menced one of three employment discrimination actions against

the City, the Personnel Board and others. After seven years of

litigation that included a trial that resulted in a finding of racial

discrimination in entry-level positions in the Fire and Police

Departments, an appeal and a petition for a writ of certiorari,

and after a second trial concerning promotional positions, that

litigation was settled in 1981 through court-approved consent

decrees providing race-conscious relief.

When, pursuant to those decrees, the City proposed to

promote black employees to the positions at issue here for the

first time in its history, white employees commenced these

separate “reverse discrimination” actions challenging the

decrees’ race-conscious relief on the same grounds that the dis-

trict court had considered—and rejected—before entering the

order approving the decrees in 1981. The reverse discrimina-

tion litigation has continued for six more years before reaching

this Court, and the claims of plaintiffs in only two City depart-

ments have been tried. The issue before this Court is ultimate-

ly whether the City can complete the process of remedying past

discrimination begun with the consent decrees wiihout being

subjected to unending collateral reverse discrimination litiga-

tion.

—_

A. Birmingham’s History of Discrimination.

The consent decrees at issue here arose after years of dis-

crimination by the City of Birmingham. That egregious history

is well known to the lower federal courts” and to this Court.*

Indeed, the City’s practices in part led to the Civil Rights Act

of 1964, including Title VII. See B. Schlei & P. Grossman,

Employment Discrimination Law viii-ix (2d ed. 1983).

_ The consent decrees at the heart of this litigation are

designed to remedy the effects of the City’s discrimination in

public employment. As late as 1958, the City’s job an-

nouncements for positions in the classified service (which are

the more desirable public service jobs) expressly said that

“[a]pplicants must be white”. J.A. 427-28, 398-400; J.A. 591,

403-08; see also J.A. 387, 389, 392; Pet. App. 39a-40a, 85a.

Although, as a result of litigation, the City stopped using such

job announcements in 1958 (see Johnson, 165 F. Supp. at 79),

the —— continued. In the Fire Department, for ex-

ample:

3 See, ¢.g., Ensley Branch, NAACP vy. Seibels, 616 F.2d 812, 822

(Sth Cir.) (employment examinations held to be discriminatory in the litiga-

tion leading to the consent decrees here), cert. denied, 449 U.S. 1061 (1980);

Armstrong v. Board of Educ. , 333 F.2d 47 (Sth Cir. 1964) (segregated public

schools); City of Birmingham v. Monk, 185 F.2d 859 (Sth Cir.) (segregated

zoning for housing), cert. denied, 341 U.S. 940 (1950); Johnson v. Yeild-

ing, 165 F. Supp. 76, 79 (N.D. Ala. 1958) (City’s job announcements re-

quired applicants to be “white”); Terry v. Elmwood Cemetery, 307 F. Supp.

369 (N.D. Ala. 1969) (racially restricted public cemeteries); Woods v.

Florence, No. CV 82-PT-2272-S, slip op. (N.D. Ala. Jan. 31, 1985) (statute

governing Personnel Board was passed and maintained with an intent to

discriminate).

4 See Walker v. City of Birmingham, 388 U.S. 307, 325 n.1 (1967)

(Warren, C.J., dissenting) (citing Shuttlesworth v. City of Birmingham, 382

U.S. 87 (1965), Shustlesworth v. City of Birmingham, 376 U.S. 339 (1964),

Shuttlesworth v. City of Birmingham, 373 U.S. 262 (1963), Gober v. City of

— 373 U.S. 374 (1963) and In re Shutilesworth, 369 U.S. 35

5 Although the reverse discrimination cases involve most of the City’s

departments, the cases in the Fire and Engineering Departments were tried

first and are the subject of these proceedings. Accordingly, this brief will

discuss primarily the evidence of discrimination in those two departments.

@ Blacks were discouraged from applying for firefighter

positions. J.A. 379-81, 391-92.

@ The City did not hire a black firefighter until 1968.

J.A. 438, R1-27; J.A. 365-66, 390, 392; 1979 trial

PX 28 at 4, J.A. 403-08.

@ The City did not hire another black firefighter until

1974, although during that six-year period it hired 170

white firefighters. 1979 trial PX 1 at 121-25, J.A.

403-08; J.A. 438, R1-27.

@ Entry-level examinations discriminated against black

applicants. J.A. 553-89, 408-10.

@ By 1976, only nine (1.4%) of the City’s 630

firefighters were black. J.A. 438, R1-27.

@ By 1981, only 9.3% of the firefighters were black,

and “none of the 140 lieutenants, captains and bat-

talion chiefs [was] black”. Pet. App. 243a.

In the Engineering Department:

@ There were no blacks in classified positions in the En-

gineering Department before at least 1963. J.A. 396-

98, 401-02.

@ Between 1965 and 1970, fewer than 5% of the clas-

sified employees were black. J.A. 444, R1-27.

@ No black employee had been promoted to transitman

before the late 1960s or early 1970s. J.A. 400.

@ No black employee had been promoted to chief of

party before the “mid or late 70’s”. J.A. 400-01.

@ Before 1982, no black employee had been promoted

to civil engineer. J.A. 109, 397-98, 401, 444, R1-27.

In the City’s classified service generally, blacks occupied fewer

than 1 % of the positions in 1966 and no more than 25 % by 1976,

while more than 70% of the less desirable unclassified jobs were

filled by blacks. J.A. 437, R1-27. Yet the City’s civilian labor

force was 24.5% black in 1960 and 49.9% black in 1980.

J.A. 436-37, R1-27.

As for the promotional positions at issue here—fire

lieutenant, fire captain and civil engineer—the number of blacks

remained “the inexorable zero” until nearly a year after the

entry of the consent decrees in 1981. J.A. 439-40, 442-45, R1-

27; J.A. 40-41, 109, 389-91, 397-98, 401; see International

Bhd. of Teamsters v. United States, 431 U.S. 324, 342 n.23

(1977). Several practices prevented black employees from

being promoted:

@ To be eligible to take promotional examinations,

employees had to receive “passing” promotional

potential evaluations that were subjectively graded by

supervisors (all of whom were white), and in the Fire

Department black employees received “failing”

scores four times more often than did white

employees. J.A. 593, 403-08; see also J.A. 649-56,

R10-1280 to 81.

@ There were also time-in-grade requirements to be

eligible to take promotional examinations, but be-

cause blacks had been excluded from entry-level posi-

tions (see J.A. 553-89, R10-1278 to 79, 1306; Pet.

App. 242a-43a), in 1979 only one black firefighter,

compared to 361 white firefighters, met those require-

ments. DX 1431 (Exhibit 7), J.A. 407-08.

@ Entry-level examinations in the Fire and Police

Departments were held to discriminate against black

applicants (J.A. 553-89, R10-1278 to 79, 1306),

promotional examinations were shown by extensive

evidence to have had an adverse impact on blacks, and

none of the examinations has ever been shown to be

job related. See J.A. 290-91; J.A. 594-649, R10-

1280 to 81; Pet. App. 242a-43a.

@ One “seniority point” was added to the examination

scores of applicants for promotion for each year of

their employment in any position in the classified ser-

vice—not necessarily in the same chain for promo-

tion—which discriminated against black employees

because they had been excluded from the classified

service. See J.A. 434-35, R1-27; J.A. 673-79, R10-

1280 to 81; 1979 trial PX 67, 1979 trial PX 147,

J.A. 403-08.

B. The Litigation Leading to the Consent Decrees.

In 1974, two actions—John W. Martin, et al. v. City of

Birmingaam, et al. and Ensley Branch, NAACP v. George

Seibels, et al.—were commenced alleging unlawful racial dis-

crimination in employment by the City, the Personnel Board

and others. In 1975, the United States commenced United

States v. Jefferson County, et al., alleging that the City and the

Personnel Board, among others, had engaged in a pattern and

practice of discrimination against blacks and women. The cases

were consolidated.®

A trial was held in 1976 concerning only two of the many

examinations at issue—the entry-level examinations for

firefighter and police officer. The district court concluded that

those examinations had an adverse impact on blacks and were

not job related under Albemarle Paper Co. v. Moody, 422 U.S.

405, 425 (1975), and the court ordered the Personnel Board to

certify specified ratios of black and white applicants to the City

as eligible to be hired. J.A. 553-89, R10-1278 to 79, 1306.

6 City employees were very much aware of that litigation. In seck-

ing to intervene seven years later, the president of the Birmingham

Firefighters Association (“BFA”) testified:

“When the . . . litigation was commenced in 1974, I consulted with

Mr. Joseph Curtin, Director of the Personnel Board, concerning the

status of the Birmingham Firefighters Association and the Firefighters

in general, as far as the . . . litigation is concerned. We expressed to

the Personnel Board oui concern that the interest of the firefighters

and of the other City employees be adequately represented in resist-

ing the claims of the Government and other persons in these cases...

During the intervening years in which these suits have beer. tried and

appealed, we kept in contact with the Personne! Board and assisted

them by supplying pertinent data requested by them.” J.A. 772-73.

Thus, the Eleventh Circuit concluded that “BFA members . . . knew at an

early stage im the proceedings that their rights could be adversely affected”

1A. 154.

7 The race-conscious relief ordered after the 1976 trial was the mode!

for the race-conscious relief embodied in the consent decrees.

The former Fifth Circuit affirmed, and this Court denied cer-

tiorari. Ensley Branch, NAACP v. Seibels, 13 Empl. Prac.

Dec. (CCH) 4 11,504 (N.D. Ala. Jan. 10, 1977), aff'd in per-

tinent part and rev'd in part, 616 F.2d 812 (Sth Cir.), cert.

denied, 449 U.S. 1061 (1980).

In 1979, a second trial, lasting eight days, was held con-

cerning promotional and certain other employment practices.

At that trial, the plaintiffs (the Martin Petitioners and the United

States) introduced substantial evidence of discrimination in

entry-level and promotional positivns. See, e.g., 1979 trial

PX 28 at 4; Aug. 1979 tr. at 639-40, 1979 trial DX 360; 1979

trial PX 29 at 6-7; 1979 trial PX 70 at 7; J.A. 403-08.°

C. The Consent Decrees.

After the 1979 trial but, before the cistrict court an-

nounced its decision, the parties began settlement negotiations,

and in 1981 the Martin Petitioners and the United States joint-

ly entered into two proposed consent decrees—one with the City

(Pet. App. 122a-201a) and the other with the Personnel Board

(Pet. App. 202a-35a). The decrees together establish goals for

hiring and promoting blacks and women and procedures to im-

plement those goals.

Notice inviting “all persons who have an interest which

may be affected by the Consent Decrees” to appear at a fairness

hearing was given by publication in two local newspapers and

by mail to the members of the minority and female subclasses.

Pet. App. 173a, 182a (emphasis in original), 146a-47a, 222a-

23a, 248a; J.A. 695, 697-98, 727-28. Several objections were

filed—some arguing that the proposed race-conscious relief was

unlawful (e.g., J.A. 701-16), and others that the relief was not

sufficient (see Objections Filed by and on Behalf of the Guar-

dians Association to the Proposed Consent Decree of the Above

Parties (July 14, 1981))—and the United States defended the

validity of the decrees’ race-conscious relief (see J.A. 717-26).

& The evidence of discrimination adduced at the 1979 trial is sum-

marized in the United States’s post-trial brief. See J.A. 594-693, R10-1280

to 81.

The Birmingham Firefighters Association (“BFA”) and

two of its members, represented by Mr. Fitzpatrick, who is

counsel for the reverse discrimination plaintiffs (the Wilks

Respondents here), petitioned to appear amicus curiae to object

to the decrees. See J.A. 699-713. At the fairness hearing, the

district court heard arguments by Mr. Fitzpatrick and others

that the decrees’ race-conscious relief violated Title VII and the

Fourteenth Amendment. J.A. 732-40, 747-50, 770, 407-08.

The court offered Mr. Fitzpatrick the opportunity to present

evidence, which he declined. J.A. 732. After “review[ing]}

with care the provisions of the proposed settlements to which

objections have been raised, as well as those portions to which

no objection has been raised”, the district court found that the

decrees are “not inequitable, unconstitutional, or otherwise

against public policy” and entered an order approving them.

United States v. Jefferson County, 28 Fair Empl. Prac. Cas.

(BNA) 1834, 1839 (N.D. Ala. Aug. 18, 1981), aff'd on other

grounds, 720 F.2d 1511 (11th Cir. 1983); Pet. App. 246a.

After the fairness hearing, Mr. Fitzpatrick’s clients

sought to intervene, but their motion was denied as untimely.

J.A. 772-76; Pet. App. 246a. The court of appeals affirmed,

holding that the district court did not abuse its discretion in

denying that motion. United States v. Jefferson County, 720

F.2d 1511, 1516-19 (11th Cir. 1983); J.A. 153-60.?

9 The court of appeals found “ample justification” (J.A. 159) for the

district court’s denial of intervention as untimely:

‘ 1. The BFA members “knew at an early stage in the proceed-

ings that their rights could be adversely affected”, and therefore they

had no excuse for waiting to intervene. J.A. 154.

2. The grant of intervention would have prejudiced the exist-

ing parties because “it would have nullified these negotiations [for a

settlement] with the Board and allowed a pattern of past discriminatory

practices to continue”. J.A. 155.

3. The BFA members would not be prejudiced because they

could “institut{e] an independent Title VII suit, asserting the specific

violations of their rights”. J.A. 158.

4. “[T]here are no mitigating circumstances”. J.A. 159.

Mr. Fitzpatrick’s clients did not file a petition for a writ of cer-

tiorari.

D. The Reverse Discrimination Litigation.

In April 1982, pursuant to the consent decrees, the City

proposed to promote black employees to fire lieutenant for the

first time in its history. J.A. 40-41. Competing white ap-

plicants (all of whom were members of the BFA (R1 1-23-43;

R13-218-3)), represented by Mr. Fitzpatrick, commenced the

first of these reverse discrimination cases and sought to enjoin

those promotions. Pet. App. 110a-121a; J.A. 35-36, 38-39.

The application for an injunction was denied (J.A. 37, 83-86),

that decision was affirmed on appeal (J.A. 160-61), and plain-

tiffs did not petition for a writ of certiorari.

Similarly, in the Engineering Department, when the City

for the first time endeavored pursuant to the decrees to promote

a black employee to civil engineer (J.A. 109), competing white

applicants (also represented by Mr. Fitzpatrick) commenced a

second reverse discrimination action and sought to enjoin that

promotion. J.A. 91-100. The district court denied that motion

for a preliminary injunction. J.A. 118-20.

Four more reverse discrimination actions were com-

menced as the City promoted more black and female employ-

ees. See J.A. 130-34; Complaint, Peter J. Zannis, et al. v.

Richard Arrington, Jr., et al., No. CV-83-AR-2680-S; Com-

plaint, William L. Garner v. City of Birmingham, et al., No.

CV-82-M-1461-S; Complaint, Johnny Howard v. City of

Birmingham Public Inspection Servs., No. CV-83-P-3010-S.

The reverse discrimination cases were, eventually, con-

solidated. J.A. 207, 218-19; see also J.A. 138-40, 144-48,

162-64, 188-93, 208-17. Additional plaintiffs have intervened

as the City has continued to promote blacks and women (see

e.g., J.A. 172-74, 185-87, 293-94, 307-08, 314-15, 331-32),

and 41 plaintiffs presently have reverse discrimination claims

pending. In the cases that were tried below, plaintiffs chal-

lenged every promotion of a black employee to the positions at

issue. See R13-250.

The decrees provide that:

“the parties hereto agree that they shall individually and

jointly defend the lawfulness of such remedial measures

in the event of challenge by any other party to this litiga-

tion or by any other person or party who may seek to chal-

lenge such remedial measures through intervention or

collateral attack.” Pet. App. 125a, 29Sa (emphases

added).

Accordingly, John W. Martin, et al., party plaintiffs in the ear-

lier litigation, intervened as defendants in these actions —over

the reverse discrimination plaintiffs’ vehement objections—to

defend the decrees. J.A. 43-47, 52, 101-03, 106-08, 165-71,

175-78, 185-87.

The United States, also a party to the decrees, intervened

or realigned in these actions as a plaintiff and challenged many

of the promotions of black employees made pursuant to the

decrees. J.A. 258-64, 289-92, 319-25, 329. Although the

United States maintained that it was not attacking the decrees’

race-conscious relief, Mr. Reynolds, the Assistant Attorney

General for Civil Rights, said that in “the Birmingham

decrees . . . lower courts have approved quota systems no

longer lawful under [Firefighters Local 1784 v. Stotts, 467 U.S.

561 (1984)]”. The New York Times, June 4, 1985 at A28. The

district court observed that “the United States has advanced ar-

guments that appear contrary to its obligations under the Decree

and inconsistent with the positions it pressed so vigorously in

the earlier litigation” (J.A. 290), and the court of appeals dis-

missed its claims on the ground that “the United States is es-

topped from collaterally attacking the consent decrees because

it is a party to them”. Pet. App. 20a. Despite its promise to

“defend the [decrees] . . . in the event of challenge . . .

through . . . collateral attack” (Pet. App. 125a, 205a), the

United States in this very Court has indicated that it supports

plaintiffs’ collateral attack. See Brief for the United States at 9-

10 (May 1988).

Defendsnts moved to dismiss the reverse discrimination

cases as impermissible collateral attacks on the consent decrees.

J.A. 121-28, 220-24. Although the United States originally

joined those motions, it withdrew its motion and then, as noted

above, realigned with the reverse discrimination plaintiffs.

J.A. 125-26, 205-06, 258-64, 319-25. The district court

denied the motions, ruling that the decrees would provide a

defense to claims of discrimination for employment decisions

“mandated” by the decrees, leaving for trial, inter alia, the

issue whether the challenged promotions were indeed required

by the decrees. See J.A. 237-39, 250-51, 280-82.

A five-day trial was held in December 1985 concerning

only the promotions of black employees in the Fire and En-

gineering Departments. 10 The issues at trial were (1) whether

the race-conscious relief in the consent decrees was lawful and

(2) whether the challenged promotions were required (or “man-

dated”) by the decrees.

To prove the validity of the decrees, defendants intro-

duced the complete records from the 1976 trial, the 1979 trial

and the 1981 fairness hearing, and adduced additional evidence

of prior discrimination. 11 On the second issue, the parties ad-

duced evidence concerning (1) the relative qualifications of

plaintiffs and the persons promoted, (2) whether the criteria

that plaintiffs proffered to compare qualifications comprised a

nondiscriminatory selection procedure and (3) whether the in-

formation proffered by plaintiffs to compare qualifications was

available to the City when it made its promotional decisions.

At the conclusion of the trial, the district court held that

the reverse discrimination plaintiffs’ claims were impermis-

sible collateral attacks on the consent decrees, that the promo-

tions at issue were required by the decrees and that the remedial

relief provided by the consent decrees—including the chal-

lenged promotions—was lawful. Pet. App. 28a-29a, 61a-65a,

10 The cases in the Police and the Streets and Sanitation Departments

were stayed pending the completion of the first trial. J.A. 329.

11 See DX 1422, DX 1423, DX 1424, R10-1279 to 81; J.A. 727-71,

DX 1976, DX 1977, DX 1978, DX 1978A, DX 1979, DX 1980, DX 1980A,

J.A. 403-408; DX 2177, R9-1273 to 74, R10-1284; DX 2210, DX 2212,

DX 2213, DX 2216, R10-1292 to 96, 1300 to 04; J.A. 362-63, 365-66, 379-

81, 383-84, 387-92, 396-402, 427-28, 398-400; J.A. 593-694, R10-1280 to

81; J.A. 436-45, R1-27. See also pp. 4-6, supra.

78a-79a, 106a-109a. Plaintiffs timely appealed, and defendants

timely cross-appealed the district court’s sua sponte denial of

attorneys’ fees. 12 The court of appeals had jurisdiction pur-

suant to 28 U.S.C. § 1291.

E. The Decision Below.

A divided panel of the Eleventh Circuit reversed the dis-

trict court’s dismissal of the private plaintiffs’ claims. The

majority (Tjoflat and Henderson, J.J.) reversed the district

court’s ruling that collateral attacks on consent decrees were

impermissible and remanded the case for the district court to

try those claims. In so doing, the court of appeals overlooked

that the district court had tried plaintiffs’ claims of reverse dis-

crimination and held alternatively that the decrees’ race-con-

scious relief was lawful. See Pet. App. 12a-17a. 13 The panel

affirmed the dismissal of the United States’s claims, holding

that as a party to the decrees the United States was estopped

from challenging the City’s actions in these collateral proceed-

ings. Pet. App. 20a. Judge Anderson dissented, arguing that

the City should not be liable for back pay but that the private

plaintiffs could seek prospective relief. Pet. App. 21a-24a.

SUMMARY OF THE ARGUMENT

Persons with notice of a proposed consent decree and the

opportunity to be heard before its entry should not be allowed

to attack that decree later in a collateral lawsuit. Under prin-

ciples set forth by this Court in Penn-Central Merger ard

N & W Inclusion Cases, 389 U.S. 486, 505-06 (1968), and fol-

lowed repeatedly by the lower federal courts, such persons

should be heard as intervenors when the court hears the

proponents and opponents of the decrees. Their failure to avail

themselves of that opportunity to be heard as intervenors does

not mean that they have the opportunity to bring a later col-

12 The court of appeals did not consider defendants’ cross-appeal for

attorneys’ fees. If the decision of the court of appeals is reversed, defendants’

cross-appeal would be ripe for decision.

13 The court of appeals denied without comment petitions for rehear-

ing that pointed out this alternative holding. Pet. App. 25a-26a.

lateral lawsuit. Because due process requires notice and the op-

portunity to be heard, denying them a second opportunity to be

heard in a collateral lawsuit is completely consistent with due

process.

Plaintiffs here were given both notice and the opportunity

to be heard; they have never asserted otherwise. Notice of the

proposed decrees was given to “all interested persons”, and that

notice obviously apprised the BFA—of which all of the Fire

Department plaintiffs are members—and several others of the

proposed decrees because they filed timely objections to them

and appeared at the fairness hearing. The fairness hearing not

only provided the plaintiffs with the opportunity to be heard,

but their interests were presented by the BFA and were in fact

heard.

There are compelling reasons for prohibiting persons in

plaintiffs’ position from maintaining a collateral attack. First,

a consent decree that has been approved by a court after a full

hearing should be given more respect than a voluntary affirm-

ative action plan. No court has passed on whether a voluntary

affirmative action plan satisfies Title VII and the Equal Protec-

tion Clause. In contrast, before a consent decree goes into ef-

fect, a court has determined that it is lawful.

Second, collateral attacks violate firmly settled principles

of comity. They create the risk of inconsistent judgments, as

starkly demonstrated by plaintiffs’ express prayer for an order

enjoining defendants from “[e]nforcing or complying” with the

court-ordered consent decrees. They waste judicial resources

by requiring the validity of the decree to be resolved in repeti-

tive and piecemeal fashion. And they necessarily require the

second court to ignore the respect that the judgment of the first

court is due.

Third, allowing collateral attacks on consent decrees

would discourage the settlement of Title VII litigation. Not

only would parties have little incentive to settle if their settle-

ment could be later undone, but once the settlement is consum-

mated the parties could not return to their pre-decree positions

if the court-approved decree is later declared invalid.

Nonetheless, even if the Court were to decide that col-

lateral attacks should be allowed, plaintiffs have already had

one here. The court of appeals overlooked that both plaintiffs

and defendants briefed the issue of the lawfulness of the

decrees’ race-conscious relief, presented evidence at trial in

support of their respective positions and argued that issue in

closing at trial, after which the district court explicitly decided

it in defendants’ favor. The district court has already decided

twice that the decrees are lawful—once in 1981 and again in

1985. There is nothing left for it to decide.

ARGUMENT

I. BECAUSE PLAINTIFFS WERE GIVEN NOTICE AND

THE OPPORTUNITY TO BE HEARD BEFORE THE

ENTRY OF THE CONSE...” DECREES, THEY

SHOULD NOT BE ALLOWED TO ATTACK THE

DECREES IN THESE COLLATERAL LAWSUITS.

The Martin Petitioners submit that the court of appeals

erroneously held that because plaintiffs were not parties to or

in privity with a party to the earlier litigation, they cannot be

precluded from asserting their claims in these collateral law-

suits consistently with due process. See Pet. App. 12a-17a. As

demonstrated below, plaintiffs were given both notice and the

opportunity to be heard before the consent decrees were

entered, and that is all that due process requires. See Mullane

v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15

(1950); Mathews v. Eldridge, 424 U.S. 319, 333 (1976). For

familiar reasons of judicial efficiency, comity and fairness,

such persons should be required to act promptly in the consent

decree litigation rather than allowed to bring a collateral law-

suit.

The overwhelming majority of the federal courts agree

that the better rule is to preclude persons who had notice and

the opportunity to be heard from attacking that decree in a col-

lateral lawsuit. See Marino v. Ortiz, 806 F.2d 1144, 1146-47

(2d Cir. 1986), aff'd, 108 S. Ct. 586 (1988) (per curiam);

Culbreath v. Dukakis, 630 F.2d 15, 22-23 (ist Cir. 1980);

Goins v. Bethlehem Steel Corp., 657 F.2d 62, 64 (4th Cir.

1981), cert. denied, 455 U.S. 940 (1982); Striff v. Mason, 849

F.2d 240, 245 (6th Cir. 1988); Stotts v. Memphis Fire Dep’t,

679 F.2d 541, 558 (6th Cir. 1982), rev’d on other grounds sub

nom. Firefighters Local 1784 v. Stotts, 467 U.S. 561 (1984);

Dennison v. City of Los Angeles Dep’t of Water & Power, 558

F.2d 694, 696 (9th Cir. 1981). '* See also Thaggard v. City of

Jackson, 687 F.2d 66, 68-69 (Sth Cir. 1982), cert. denied sub

nom. Ashley v. City of Jackson, 464 U.S. 900 (1983). !> The

Seventh Circuit has split: one panel has squarely held that a

“state agency’s order that rectifies discrimination should no

more be the basis for a Title VII suit than a consent decree

entered into during a Title VII suit” ( Grann v. City of Madison,

738 F.2d 786, 795 (7th Cir.), cert. denied, 469 U.S. 918

(1984)), but a second panel (without mentioning the first

panel’s decision) suggested that a consent decree concerning

municipal facilities could be collaterally attacked (see Dunn v.

Carey, 808 F.2d 555, 559-60 (7th Cir. 1986)).

A. Because Plaintiffs Were Given Notice and A Time-

ly Opportunity To Intervene in the Consent Decree

Litigation, Their Collateral Attack in These Cases

Should Be Barred.

1. Persons with notice that a pending lawsuit may

affect their rights must intervene timely rather

than assert those rights in a later action.

This Court has held that persons with notice of a lawsuit

affecting their interests may be bound by its results if they do

14 See also EEOC vy. McCall Printing Corp. , 633 F.2d 1232, 1237

(6th Cir. 1980); Black and White Children of the Pontiac School Sys. v.

School Dist. , 464 F.2d 1030 (6th Cir. 1972) (per curiam) (“Black and White

School Children”); Burns v. Board of School Comm'rs, 437 F.2d 1143, 1144

(7th Cir. 1971) (per curiam); Prate v. Freedman, 430 F. Supp. 1373, 1375

(W.D.N.Y.), aff'd mem. , 573 F.2d 1294 (2d Cir. 1977), cert. denied, 436

U.S. 922 (1978); O’Burn v. Shapp, 70 F.R.D. 549, 552-53 (E.D. Pa.), aff'd

mem., 546 F.2d 417 (3d Cir. 1976), cert. denied, 430 U.S. 968 (1977);

Freeze v. ARO, Inc., 503 F. Supp. 1045, 1047-48 (E.D. Tenn. 1980); Jef-

ferson v. Connors Steel Co. , 25 Empl. Prac. Dec. (CCH) 131,602 at 19,486

(N.D. Ala. Jan. 19, 1981); Austin v. County of Dekalb, 572 F. Supp. 479,

481 (N.D. Ga. 1983).

15 Although the Fifth Circuit has suggested that the Thaggard line of

cases should be reexamined if under the facts of a particular case a person

is denied his day in court, that court remains “firmly bound” to the Thaggard

rule where, as here, an opportunity to be heard was available. See Corley v.

Jackson Police Dep't, 755 F.2d 1207, 1210 (Sth Cir. 1985).

not intervene to defend those interests. In Penn-Central

Merger and N&W Inclusion Cases, 389 U.S. 486 (1968), the

Borough of Moosic brought an action in the Middle District of

Pennsylvania seeking to enjoin the Penn-Central merger, one

of several such actions filed in various district courts nation-

wide. All of the actions were stayed pending disposition of the

common issues by a three-judge panel in the Southern District

of New York. The Southern District approved the merger, and

this Court substantially affirmed that judgment. This Court

then held that, although Moosic was not a party to the New York

proceedings, it was precluded from relitigating the merits of the

approval of the merger in its Pennsylvania action because it

“had an adequate opportunity to join in the [New York] litiga-

tion”. Jd. at 505. The Court stated:

“All parties with standing to challenge the Commission’s

action might have joined in the New York proceedings.

In these circumstances, it necessarily follows that the

decision of the New York court . . . precludes further judi-

cial review or adjudication of the issues upon which it pas-

ses.” Id. at 505-06 (footnote omitted).

The Court also noted that Moosic’s claims “were all the subject

of extensive evidence and were analyzed at length” by the In-

terstate Commerce Commission (id. at 504), just as plaintiffs’

challenges here were presented by the BFA and analyzed by the

district court (see J.A. 699-713; Pet. App. 246a).

Similarly, in Provident Tradesmens Bank & Trust Co. v.

Patterson, 390 U.S. 102, 107 (1968), the Court rejected the ar-

gument that a necessary party has a “substantive right” to be

joined or to have the suit dismissed in its absence. The Court

suggested that in a subsequent suit, that party “should be bound

by the previous decision because, although technically a non-

party, he had purposely bypassed an adequate opportunity to

intervene.” /d. at 114.

The lower Federal courts hay repeatedly and consistent-

ly followed the reasoning of Penn-Central and Provident

Tradesmens Bank. In a wide variety of contexts, those courts

have refused to permit a person who could have intervened in

the original lawsuit to challenge the resultant relief in a col-

lateral lawsuit. !

When a nonparty has not been given notice or the oppor-

tunity to intervene and was not adequately represented, memu-

bers of this Court have expressed concern about precluding that

person from challenging a consent decree. See Ashley v. City

of Jackson, 464 U.S. 900 (1983) (Rehnquist, J., joined by Bren-

nan, J., dissenting from the denial of certiorari). In Ashley, the

“USA consent decree between the City and the United States

was agreed to the same day suit was filed, thus pre-decree in-

tervention was impossible.” Ashley’s Petition for Rehearing at

6, Ashley v. City of Jackson, No. 82-1390 (Nov. 5, 1983).

There, the court entered the decree three days after the lawsuit

was commenced without notice to nonparties or a hearing.

Under such circumstances, not present here, that nonparty

16 See, e.g., Bergh v. Washington, 535 F.2d 505, 507 (9th Cir.) (Ken-

nedy, J.) (comity and lack of standing prevent white fishermen from attack-

ing an order in another action favoring Indian fishermen; the proper course

would have been to seek intervention in the first action), cert. denied, 429

U.S. 921 (1976); Safir v. Dole, 718 F.2d 475, 482-83 (D.C. Cir. 1983)

(Scalia, J.) (nonparties are collaterally estopped from challenging an issue

litigated in an earlier suit where, despite the court’s invitations, they

“sedulously abstained” from intervening), cert. denied, 467 U.S. 1206

(1984); National Wildlife Fed’n v. Gorsuch, 744 F.2d 963, 969-70 (3d Cir.

1984) (where nonparties’ attempted intervention was untimely and their inter-

ests were adequately represented, they were precluded from relitigating an

environmental consent decree); Grann v. City of Madison, 738 F.2d at 794-

96 (failure to intervene in state agency gender discrimination hearing bars

male detectives’ subsequent attack on the resulting relief); Cummins Diesel

Michigan, Inc. v. The Falcon, 305 F.2d 721, 723 (7th Cir. 1962) (failure to

intervene in admiralty actions binds a nonparty); Marine Power & Equip. Co.

v. United States, 594 F. Supp. 997, 1003 (D.D.C. 1984) (“a party that fails

to intervene in an action directly challenging its interests may be barred from

bringing a later collateral attack” (citations omitted)); Treasure Salvors, Inc.

v. Unidentified Wreck, 459 F. Supp. 507, 514 (S.D. Fla. 1978) (“A party who

purposely fails to intervene is bound under the law of this Circuit”), aff'd on

other grounds sub nom. Florida Dep't of State v. Treasure Salvors, Inc., 621

F.2d 1340 (Sth Cir. 1980), aff'd in part and rev'd in part on other grounds,

458 U.S. 670 (1982). Accord F. James & G. Hazard, Civil Procedure

§ 11.31 at 599 (2d ed. 1977) (“The process of settling legal rights through ad-

judication is simply another form of . . . investment, whose value a bystand-

er with knowledge should not be allowed to destroy by his silence and

inaction”). See also Note, Preclusion of Absent Disputants to Compel Inter-

vention, 79 Colum. L. Rev. 1551 (1979).

should have a post-decree opportunity to challenge the consent

decree, but even then a collateral attack is not the appropriate

procedural device. Rather, at least where the district court has

retained jurisdiction, the nonparty should seek to intervene.

See Society Hill Civic Ass’n v. Harris, 632 F.2d 1045, 1052 (3d

Cir. 1980) (“intervention is a far better course than subsequent

collateral attack, if intervention is feasible and . . . an unjus-

tified or unreasonable failure to intervene can serve to bar a

later collateral attack”); United States v. Allegheny-Ludlum

Indus., 63 F.R.D. 1, 4-5 (N.D. Ala. 1974) (Pointer, J.) (allow-

ing post-decree intervention to challenge specific provisions of

a consent decree), aff'd, 517 F.2d 826 (Sth Cir. 1975), cert.

denied, 425 U.S. 944 (1976); EEOC v. American Tel. & Tell.,

506 F.2d 735, 741-42 (3d Cir. 1974). 17

2. Plaintiffs could have intervened timely to chal-

lenge the relief in the proposed consent

decrees, but they did not do so.

Plaintiffs have already had their opportunity for a day in

court, but they did not fully avail themselves of it. By 1981,

the first litigation had been ongoing for years, and the BFA—

which represents all of the Fire Department plaintiffs (R11-23-

43: R13-218-3)—consulted with and assisted the Personnel

Board to ensure that firefighters’ interests were represented in

that litigation. J.A. 772-73. At the time the decrees were

proposed, all of the plaintiffs were employed by the City. See

J.A. 366-67, 369-71, 377, 382, 384-87, 389-90, 396. They

were given notice of the proposed consent decrees (J.A. 695,

697-98, 727-28; Pet. App. 146a, 17la-75a, 222a-23a, 248a),

which sufficiently apprised several groups representing non-

minority employees to object to the proposed decrees. See J.A.

699-716. They were given the opportunity to be heard at the

fairness hearing; indeed, the BFA was heard as the repre-

17 That is not to say that every motion to intervene should be granted

automatically. The movant must demonstrate at the least that its interests

were not adequately represented previously in the litigation. Fed. R. Civ.

P. 24(a)(2). Moreover, persons who were given notice and could have in-

tervened earlier—like the BFA here—should not be granted post-decree in-

tervention to challenge the decree’s validity. See J.A. 772-76; Pet. App.

246a.

we ye em

ae > ~

sentative of its members, including the Fire Department plain-

tiffs. See J.A. 699-713, 730, 732-40, 770. But plaintiffs did

not seek to intervene prior to the court’s consideration of the

decrees.

If plaintiffs had sought to intervene for the purpose

challenging the relief in the proposed consent ieaanein a od

ly fashion, that application should have been granted. See

Howard v. McLucas, 782 F.2d 956, 959-60 (11th Cir. 1986)

(abuse of discretion to deny intervention before the fairness

hearing); Kirkland v. New York Dep’t of Correctional Servs.

711 F.2d 1117, 1125-26 (2d Cir. 1983), cert. denied, 465 U.S.

1005 (1984). Indeed, when the BFA and others later sought to

challenge specific proposed promotions of black employees

pursuant to the decrees, Judge Pointer allowed them to inter-

vene in the consent decree litigation for the purpose of chal-

lenging those promotions. See J.A. 782-84; see also

Allegheny-Ludlum Indus., 63 F.R.D. at 4-5.

18 The BFA did seek to intervene, but it waited until after the dead-

line for interested persons to file their briefs had passed, after the objectors

had filed their briefs and the parties to the decrees had filed their responses

after the court had invited persons at the fairness hearing to present evidence

(J A. 732) and after the district court heard arguments in favor of and in op-

position to the proposed decrees. See J.A. 727-76. That motion was proper-

ly denied as untimely. Pet. App. 246a; J.A. 154-59.

he Once the validity of a proposed consent decree has been submitted for

decision, a later motion to intervene to challenge the validity of the decree by

nonparties who were given notice and could have intervened earlier should

be denied. The policies against allowing late intervention—prejudice to the

parties, judicial efficiency and finality—are the same policies that militate

against collateral attacks. See, e.g., United States v. Yonkers Bd. of Educ.

801 F.2d 593, 596 (2d Cir. 1986); Pennsylvania v. Rizzo, 530 F.2d 501, 506-

07 (3d Cir. 1976); Nevilles vy. EEOC, 511 F.2d 303, 305-06 (8th Cir. 1975)

(per curiam); Firebird Soc’y of New Haven, Inc. v. New Haven Bd. of Fire

Comm rs, 66 F.R.D. 457, 464-66 (D. Conn.), aff'd mem. , 515 F.2d 504 (2d

Cir.), cert. denied, 423 U.S. 867 (1975). That is particularly true where, as

here, the person seeking to intervene hzs not shown any new facts or law war-

ranting reconsideration of the challenged order.

B. There Are Compelling Reasons for Barring Col-

lateral Attacks by Persons Who Were Given Notice

and the Opportunity To Be Heard.

As demonstrated above, nonparties who may be affected

by a proposed consent decree should be required to act prompt-

ly and intervene if they wish to be heard rather than allowed to

maintain a collateral lawsuit. The reasons for that rule are com-

pelling.

1. The consent decrees here were approved only

after careful judicial scrutiny and therefore

should not be treated as just a voluntary af-

firmative action plan.

To permit collateral attacks on these consent decrees is to

treat them as nothing more than a voluntary affirmative action

plan. The court of appeals did precisely that, concluding “[w]e

perceive no reason for treating a consent decree entered pur-

suant to a voluntary settlement differently from a voluntary af-

firmative action plan”. Pet. App. 19a (footnote omitted). The

court of appeals treated the decrees as a private consensual

agreement, notwithstanding that before the district court ap-

proved the decrees:

@ race-conscious relief had already been ordered for

entry-level positions in the Police and Fire Depart-

ments after the 1976 trial (J.A. 588-89), and after the

1979 trial there was “more than ample reason for the

Personnel Board and the City of Birmingham to be

concerned that they would be in time held liable for

discrimination against blacks at higher level positions

in the police and fire departments” (Pet. App. 244a);

@ notice of the proposed decrees was given to “all per-

sons who have an interest which may be affected by

the Consent Decrees” (Pet. App. 173a, 182a (em-

phasis in original), 146a, 171a-75a, 222a-23a, 248a;

J.A. 695, 697-98, 727-28);

@ the district court held a fairness hearing at which

several employees appeared and filed briefs, some ar-

guing that the race-conscious relief was inadequate,

;

and others (including the BFA) arguing that it was un-

lawful reverse discrimination (see J.A. 699-771); and

@ it “reviewed with care the provisions of the proposed

settlements to which objections have been raised, as

well as those portions to which no objection has been

raised”. Pet. App. 246a.

In short, the district court followed the admonition of the

former Fifth Circuit and carefully scrutinized the proposed

decrees. See United States v. City of Miami, 664 F.2d 435,

440-41 (Former Sth Cir. 1981) (en banc) (opinion of Rubin, J.).

The order approving these decrees is a full adjudication of their

lawfulness. See 1B J. Moore, J. Lucas & T. Currier, Moore’s

Federal Practice 10.409[5] at 326 (2d ed. 1984). The decrees

here are far more than “a contract between parties, formalized

by the signature of a judge”. Ashley, 464 U.S. at 902.

The decrees are very different from a voluntary affirma-

tive action plan. Unlike the consent decrees here, a voluntary

plan has not been scrutinized by a court before going into ef-

fect, and persons affected by it have not had the opportunity to

present their views to a court of law. The fact that the order

approving the decrees has been fully litigated, affording proce-

dural guarantees to participants and to interested persons, en-

titles that order to far more preclusive effect than a voluntary

affirmative action plan.

2. Allowing collateral attacks on consent decrees

would discourage the settlement of Title VII

claims.

Permitting collateral attacks by persons who chose not to

be heard before the entry of the decrees would have the perverse

effect of destroying the incentives to settle Title VII claims.

See Dennison, 658 F .2d at 696; Thaggard, 687 F.2d at 69. This

Court has recognized that “[c]ooperation and voluntary com-

pliance were selected as the preferred means for achieving”

equal employment opportunity. Alexander v. Gardner-Denver

Co., 415 U.S. 36, 44 (1974); see also Carson v. American

Brands, Inc., 450 U.S. 79, 88-89 & n.14 (1981); Local 93, “t’l

Ass’n of Firefighters v. City of Cleveland, 106 S.Ct. 3063, 3072

(1986° (“Local 93”); 29 C.F.R. § 1608. 1(b) (1986) (EEOC Af-

firmative Action Guidelines). That policy would be thwarted

if collateral attacks were allowed.

Collateral lawsuits threaten the primary benefit that each

party receives by settling—relief for plaintiffs and repose for

defendants. In this case, the Martin Petitioners, after litigating

for seven years, surrendered their discrimination claims in

return for the relief set forth in the decrees. Yet they have had

to fight for seven more years to defend that relief. !9 Similar-

ly, the City has faced unending litigation rather than the repose

that it had expected. Few future litigants would give up their

claims or defenses if the benefits they would obtain were so

ephemeral.

The incentive to settle would be diminished even further

because once the parties have acted in reliance on the decree,

they could not retura to their pre-decree positions if the decree

is later declared invalid. The original plaintiffs (like the Mar-

tin Petitioners here) would have given up their claims long

before; the defendant employer (like the City and the Person-

nel Board) would have given up its defenses, made employment

decisions in reliance on the decree and (perhaps) paid a

monetary sei.lement. Litigants would quickly recognize that

settlement would pose at least as many risks as litigating.

3. Collateral attacks on litigated consent decrees

violate settled principles of comity and fail to

accord due respect to federal court judgments.

Collateral attacks on consent decrees that have been care-

fully reviewed and approved by a federal court necessarily re-

quire reconsideration of earlier decisions, perhaps by a

different judge or even by a different court. That violates the

same principles of comity that led this Court to prevent a non-

party who directed earlier litigation from relitigating the result-

ing judgment:

19 Indeed, plaintiffs vigorously sought to prevent the Martin

Petitioners from intervening in this litigation to defend the relief. See

J.A. 175-78.

“To preclude parties from contesting matters that they

have had a full and fair opportunity to litigate protects

their adversaries from the expense and vexation attending

multiple lawsuits, conserves judicial resources, and

fosters reliance on judicial action by minimizing the pos-

sibility of inconsistent judgments.” Montana v. United

States, 440 U.S. 147, 153-54 (1979).

The Ninth Circuit recognized these principles when it barred a

collateral attack on a litigated judgment: “[t}he proper exercise

of restraint in the name of comity keeps to a minimum the con-

flicts between courts administering the same law, conserves

judicial time and expense, and has a salutory effect upon the

prompt and efficient administration of justice.” Bergh, 535

F.2d at 507 (Kennedy, J.) (quoting Brittingham v. Commis-

sioner, 451 F.2d 315, 318 (Sth Cir. 1971)). Those same con-

siderations of comity require the same rule to apply here.

a. Collateral attacks violate the respect that

courts accord to prior judgments.

In this case, the collateral attacks were before Judge

Pointer, the judge who approved the consent decrees. That

was, however, purely fortuitous. Two of the reverse dis-

crimination cases were assigned to another judge, who denied

repeated motions to transfer them or to consolidate them with

the cases before Judge Pointer. J.A. 138-40, 144-48, 162-64,

188-93, 196-201; see also J.A. 208-17. It was only because the

first-filed reverse discrimination case happened to be random-

ly assigned to Judge Pointer that, when the cases were ultimate-

ly consolidated, they were all assigned to him. See J.A. 207,

218-19.

Many other litigants defending collateral attacks have not

been so fortunate. A plaintiff challenging a consent decree ob-

viously would prefer to avoid the court that entered the order

approving that decree, just as plaintiffs here fought so vigorous-

ly to keep these cases from Judge Pointer. See J.A. 196-201,

208-17. Therefore, collateral attacks have often been brought

in a court other than the one that entered the original judgment.

See, e.g., Gregory-Portland Indep. School Dist. v. Texas Educ.

Agency, 576 F.2d 81 (Sth Cir. 1978), cert. denied, 440 U.S.

947 (1979); Goins, 657 F.2d 62; Black and White School

Children, 464 F.2d 1030; Feller v. Brock, 802 F.2d 722 (4th

Cir. 1986); Common Cause v. Judicial Ethics Comm., 473

F. Supp. 1251, 1253-54 (D.D.C. 1979). 20 Many consent

decrees cover an employer’s practices nationwide, 21 and if

collateral attacks were allowed, a person unhappy with one of

those decrees could challenge it in any other district court in

the country.

A collateral attack in another forum on the decree of a

court of competent jurisdiction has long been held improper be-

cause it violates the respect that federal courts owe to each

others’ orders. A court of equity retains continuing jurisdic-

tion over the enforcement of its orders (System Fed’n v. Wright,

364 U.S. 642, 646-48 (1961); United States v. Swift & Co.,

286 U.S. 106, 114-15 (1932)) and the power to modify its

decrees based on changed circumstances of law or fact (id.).

Courts therefore refrain from reconsidering orders by other

federal courts. See Deposit Bank v. Frankfort, 191 U.S. 499,

510-12 (1903); Delaware Valley Citizens’ Council for Clean

Air v. Pennsylvania, 755 F.2d 38, 42-44, 46 (3d Cir.), cert.

denied, 474 U.S. 819 (1985). The specter of different district

courts wrestling over the fate of the same school children in a

20 For example, in Gregory-Portland, the United States brought a

school desegregation action in the Eastern District of Texas against the Texas

Education Agency (“TEA”). The district court enjoined the TEA from fund-

ing or accrediting school districts that discriminated on the basis of race. See

United States v. Texas, 330 F. Supp. 235 (E.D. Tex.), aff'd and modified,

447 F.2d 441 (Sth Cir. 1971), cert. denied, 404 U.S. 1016 (1972). Gregory-

Portland sued the TEA in the Southern District of Texas alleging that the

threat to terminate Gregory-Portland’s accreditation violated due process.

The Southern District agreed, and enjoined the TEA from suspending

Gregory-Portland’s accreditation or funding. The Fifth Circuit reversed on

the ground that the Southern District should not interfere with the order of

another court with continuing jurisdiction. See Gregory-Portland, 576 F.2d

at 83.

21 See, e.g., United States v. Allegheny-Ludlum Indus. , 517 F.2d 826

(Sth Cir. 1975) (consent decree covering nationwide practices in the stecl in-

dustry), cert. denied, 425 U.S. 944 (1976); EEOC v. American Tel. & Tel.,

556 F.2d 167 (3d Cir. 1977) (consent decree covering nationwide employ-

ment practices of the Bell companies), cert. denied, 438 U.S. 915 (1978).

busing controversy, reviewing a school district’s efforts to

desegregate or issuing orders concerning an employer’s promo-

tion policies are precisely the types of dilemmas that comity is

designed to avoid. See, e.g., Black and White School Children,

464 F.2d 1030; Gregory-Portland, 576 F.2d 81; Goins, 657

F.2d 62. The rule prohibiting collateral attacks is the

mechanism for enforcing comity.

Comity precludes lawsuits challenging the orders of other

courts regardless of whether the plaintiff in the collateral suit

was a party or privy to the initial action. See Treadway v.

Academy of Motion Picture Arts & Sciences, 783 F.2d 1418,

1421-22 (9th Cir. 1986); Goins, 657 F.2d at 64; Gregory-

Portland, 576 F.2d at 82-83; Feller, 802 F.2d at 728-29. For

example, in Feller, the NAACP brought an action in the Dis-

trict of Columbia challenging the Department of Labor’s

(“DOL”) administration of the Temporary Foreign Worker

Program. Under that program, the DOL certified that

employers could hire alien workers, provided that the

employers paid a specified wage. The NAACP alleged that the

DOL had certified employers who paid aliens less than that

wage. The district court enjoined the DOL from certifying non-

complying employers, and, pursuant to that order, the DOL

refused to certify two West Virginia apple growers. Those two

growers sued the DOL in West Virginia and obtained an order

that they be certified, with which the DOL complied. The

Fourth Circuit reversed the West Virginia court’s order, noting

that comity “has been expanded . . . to cases in which the plain-

tiff in the second action was neither a party nor the successor-

in-interest of a party in the first action”. /d. at 728; see also

Exxon Corp. v. Department of Energy, 594 F. Supp. 84, 89-91

(D. Del. 1984).

These concerns for comity are not obviated by transfer-

ring the collateral attack to the same court and judge that entered

the consent decree. Because the collateral attack is a separate

lawsuit, it still requires the reconsideration of an earlier order

entered in another case. Allowing plaintiffs to maintain a col-

lateral attack rather than requiring them to intervene in the

original litigation means that they may effectively seek to over-

turn an order without first making any showing that would war-

rant reconsideration of that order. That is precisely what the

plaintiffs are doing here: they are challenging in these col-

lateral lawsuits the order approving the decrees without plead-

ing any facts or law that the district court has not already

considered. Moreover, the policies of judicial efficiency and

finality that underlie comity are frustrated by a collateral attack,

regardless of whether the same judge presides over the second

lawsuit.

b. The collateral attacks here create the risk

that the City would be subject to inconsis-

tent obligations.

This Court recognized in Local 93 that allowing a court

other than the one that entered the decree to interpret it or

modify it would create a “risk of inconsistent or conflicting

obligations”. 106 S. Ct. at 3076 n.13; see also Montana v.

United States, 440 U.S. at 153-54; Thaggard, 687 F.2d at 68;

O’Burn, 70 F.R.D. at 552; Dennison, 658 F.2d at 695. That

risk is very real in collateral proceedings.

A consent decree, like any other court order, can be en-

forced by contempt. Local 93, 106 S. Ct. at 3074; see, e.g.,

Apex Fountain Sales, Inc. v. Kleinfeld, 818 F.2d 1089, 1097-

98 (3d Cir. 1987); United States v. Barco Corp. , 430 F.2d 998,

999 (8th Cir. 1970). The City could not defy the court-ordered

decrees and later defend against contempt by arguing that the

decrees were unlawful. See Walker v. City of Birmingham, 388

U.S. 307, 315-21 (1967).

In their complaints, plaintiffs expressly seek to enjoin

defendants from “[e]nforcing or complying with” the court-or-

dered consent decrees. Pet. App. 115a; J.A. 98; see also J.A.

133. When the City proposed to promote black employees pur-

suant to the decrees for the first time to fire lieutenant and civil

engineer, plaintiffs sought a temporary restraining order en-

joining defendants from “enforcing” the decrees. J.A. 35-36,

38-39, 91-92. If the City were to fail to enforce and comply

with the decrees, the Martin Petitioners would seek to hold the

City in contempt in the consert decree case. One cannot im-

agine a greater risk of inconsistent obligations than allowing a

plaintiff to seek in a new proceeding an order prohibiting the

defendant from “enforcing or complying with” a court order in

another proceeding.

The City should not have to face that possibility. In an

analogous situation, this Court rejected the argument that a

broadcaster may be held liable for complying with the Com-

munications Act’s equal time provisions, concluding that such

an argument “would sanction the unconscionable result of per-

mitting civil and perhaps criminal liability to be imposed for

the very conduct the statute demands of the licensee.” Farmers

Educ. & Coop. Union v. WDAY, Inc., 360 U.S. 525, 531 (1959)

(emphasis added); see also National Licorice Co. v. NLRB, 309

U.S. 350, 365 (1940) (courts cannot enter orders inconsistent

with an NLRB order); 29 C.F.R. § 1608.8 (1986) (“actions

taken pursuant to the direction of a Court Order cannot give rise

to liability under Title VII”);Adams v. Morton, 581 F.2d 1314,

1318 (9th Cir. 1978) (consent decree cannot form basis of a

Title VII action), cert. denied, 440 U.S. 958 (1979). 2 Allow-

ing the City to face liability for complying with the consent

decrees here would be no less unconscionable.

c. Collateral attacks waste judicial resources

by relitigating issues already decided after

a full and fair opportunity for all parties to

be heard.

Judicial resources are increasingly scarce (see

Schmieder v. Hall, 545 F.2d 768, 771 (2d Cir. 1976), cert.

denied, 430 U.S. 955 (1977)), and allowing collateral lawsuits

by persons who could have intervened unnecessarily wastes

those precious resources. See Montana v. United States, 440

U.S. at 153-54 (prohibiting relitigation of issues by persons not

nominal parties “conserves judicial resources”); Local 93, 106

S. Ct. at 3076 n. 13 (channeling litigation concerning a consent

decree to the court that entered it “avoid[s] the waste of resour-

22 Judge Anderson dissented from the decision below on the ground

that the City should not be liable for back pay for complying with a court

order. See Pet. App. 21a-24a. His analysis falters because he stated that the

plaintiffs should be allowed to attack the decrees prospectively. That would

still expose the City to conflicting court orders if the court in the collateral

lawsuits ordered the City not to comply with the court-ordered decrees.

ces” (citation omitted)); University of Tennessee v. Elliott, 196

S. Ct. 3220, 3226 (1986) (giving preclusive effect to factfind-

ing by state administrative agencies serves “the public’s inter-

est in conserving judicial resources”); cf. Blonder-Tongue

Labs., Inc. v. University of Illinois Foundation, 402 U.S. 313,

329 (1971) (relitigation of issues “is an arguable misallocation

of resources”).

Here, the BFA and others objected to the decrees in the

consent decree litigation on the same grounds raised by the

reverse discrimination plaintiffs in this litigation. 2? The dis-

trict court approved the decrees only after it “reviewed with

care” those objections. Pet. App. 246a. In holding that plain-

tiffs’ collateral attacks may go forward, the court of appeals

remanded the case for the district court to decide the question

that it had already decided when it approved the decrees. And

because nearly every promotion of a black employee pursuant

to the decrees has led to a new reverse discrimination claim, the

district court will—if the decision of the court of appeals is not

reversed—have to decide that same question again and again

and again.

d. Allowing collateral attacks on consent

decrees is inconsistent with the finality ac-

corded to fully litigated judgments.

A judgment entered after a fully litigated proceeding can-

not be collaterally attacked by persons who could have inter-

vened in that proceeding. Penn-Central Merger and N&W

23 In both 1981 and in these reverse discrimination cases,

Mr. Fitzpatrick argued that the decrees’ race-conscious relief violated

Title VII because (1) it benefitted persons other than identified victims of dis-

crimination (compare J.A. 704, 706-07, 709-11, 735-36 with J.A. 411, 413),

(2) it was not supported by judicial findings of discrimination (compare J.A.

703-04, 707, 711-12, 735 with J.A. 411-13), (3) the percentage goals tram-

meled the rights of whites by reducing their opportunities for promotions

(compare J.A. 702, 704, 711-12, 736-37 with Pet. App. 113a-15a, J.A. 97-

98, (14, 132-33, 413) and (4) the decrees trammeled the rights of white

employees who were allegedly better qualified than the black employees who

were promoted (compare J.A. 702, 704, 738, 775 with Pet. App. 112a-14a,

J.A. 71-72, 96-98, 112-13, 132, 414-16). See also J.A. 714-16, 747-50 (ob-

jections by other white employees); Pet. App. 236a-49a (opinion and order

approving decrees).

Inclusion Cases, 389 U.S. at 505-06; Bergh, 535 F.2d 505;

Safir, 718 F.2d at 482-83; Feller, 802 F.2d at 728-29; Gregory-

Portland, 576 F.2d at 83. When a court has held a hearing and

invited interested persons to present their views, there is no

reason to treat the order approving a consent decree any dif-

ferently than a fully litigated order. As the Third Circuit ob-

served:

“When a consent decree’s essential features are attacked

on the basis of facts which existed before entry or conten-

tions based on legal doctrine then applicable, the chal-

lenge stands on the same basis as one employing similar

grounds in an adjudicated case. In both instances, con-

siderations of finality are dominant.” Gorsuch, 744 F.2d

at 968.

Several courts have observed that, if collateral attacks on consent

decrees were allowed, “courts could never enter a judgment in a

lawsuit with the assurance that the judgment was a final and con-

clusive determination of the underlying dispute”. O’Burn, 70

F.R.D. at 52; see Thaggard, 687 F .2d at 69; Prate, 430 F. Supp.

at 1375.

These cases illustrate that an order approving a consent

decree should be accorded the same finality as a litigated order.

There are two court orders providing race-conscious relief—the

1977 order for entry-level positions in the Police and Fire

Departments entered after a trial and the 1981 order approving

the consent decrees. J.A. 588-89; Pet. App. 247a-49a. The

district court entered each order after holding a hearing, care-

fully weighing the evidence of discrimination and evaluating

the relief necessary to remedy that discrimination. See

J.A. 553-87, 727-71; Pet. App. 236a-46a. Indeed, non-

minorities had a greater voice before the entry of the consent

decrees—because their interests were expressly represented by

the BFA at the fairness hearing—than before the entry of the

1977 order. The lawfulness of the relief approved in both

24 See also Kremer v. Chemical Constr. Co., 456 U.S. 461, 478

(1982) (“Stripping state court judgments of finality would . . . lessen[ } the

incentive for full participation by the parties and for searching review by state

officials [and] . . . would violate basic tenets of comity and federalism” (cita-

tion omitted)).

orders was fully litigated, and both »rders should be accorded

the same finality.

4. Requiring persons with notice of a proposed

decree to intervene in that litigation is fair to

them and to the parties to the decree, and it

resolves the lawfulness of the decree most effi-

ciently.

Persons with notice that a proposed consent decree may

affect their interests should assert their rights promptly. They

should be required to present their position at the same time that

the district court considers the other interests militating for and

against the decree rather than be allowed to wait to commence

a collateral lawsuit. That procedural rule would resolve the

lawfulness of a proposed decree “swiftly but fairly”. Blonder-

Tongue, 402 U.S. at 327.

There is nothing remarkable in requiring persons to raise

their claims in a timely fashion. For example, recipients of a

“right to sue” letter must commence a lawsuit within 90 days or

forever lose their day in court. 42 U.S.C. § 2000e-5(f(1);

United Air Lines v. Evans, 431 U.S. 553, 557-58 (1977).

Similarly, statutes of limitations terminate claims after a specified

period of time. See Order of R.R. Telegraphers v. Railway Ex-

press Agency, 321 U.S. 342, 349 (1944) (“even if one has a just

claim it is unjust not to put the adversary on notice to defend

within the period of limitation and . . . the right to be free of stale

claims in time comes to prevail over the right to prosecute them”).

One on whom process has been served must act promptly or face

default. See Fed. R. Civ. P. 55. And in Penn-Central, this Court

denied the Borough of Moosic’s right to prosecute a collateral

lawsuit because it delayed in asserting its rights. 389 U.S. at

305-06. It is not unfair to require persons who know or should

know that a proposed decree may affect them to assert their in-

terests sooner rather than later. See J.A. 154. See generally,

Logan v. Zimmerman Brush Co. , 455 U.S. 422, 437 (1982) (“The

State may erect reasonable procedural requirements for trigger-

ing the right to an adjudication”) .2>

25 Prohibiting collateral lawsuits is certainly more fair to the parties

to the decrees because it protects them from “the expense and vexation at-

Similarly, in habeas corpus proceedings collaterally

attacking state court criminal judgments, this Court has been

particularly unsympathetic to prisoners who delay in present-

ing their constitutional claims. See, e.g., Wainwright v. Sykes,

433 U.S. 72 (1977). There, this Court established the “cause

and prejudice” rule because it believed that a more lenient rule

“may encourage ‘sandbagging’ on the part of defense lawyers,

who may take their chances on a verdict of not guilty in a state

trial court with the intent to raise their constitutional claims in

a federal habeas court if their initial gamble does not pay off”.

Id. at 89.

Collateral attacks of consent decrees provide just the sort

of tempting opportunity for “sandbagging” that the Court feared

in Wainwright. For precisely this reason, courts have rejected

collateral attacks in civil cases. For example, in Gorsuch, the

district court dismissed the National Wildlife Federation’s col-

lateral attack on a consent decree entered ina related case in which

the Federation had objected to the decree but had not timely in-

tervened. The Third Circuit affirmed, stating:

“Clearly, plaintiffs were not outsiders unaware of litiga-

tion in progress that would ultimately affect their inter-

ests. In a deliberate choice of litigation strategy, they

chose to stand on the sidelines, wary but not active, deep-

ly interested, but of their own volition not participants.

Although plaintiffs may not have had their day in court as

litigants, they had the opportunity and for reasons of their

own adopted a different approach. Plaintiffs cannot, at

this stage, assert persuasively that the interest of finality

should not prevail.” 744 F.2d at 971-72. 26

tending multiple lawsuits”. Montana y. United States, 440 U.S. at 153; see

also University of Tennessee, 106 S. Ct. at 3226. The defense of these col-

lateral attacks has been expensive indeed. Although the Martin Petitioners

are protecting the relief they obtained as civil rights plainaffs, the district

court sua sponte denied them attorneys’ fees under the standards applicable

to civil rights defendants. See Christiansburg Garment Co. v. EEOC, 434

U.S. 412, 422 (1978); Pet. App. 34a, 82a. That ruling is the subject of

defendants’ cross-appeal. R14-301.

26 Similarly, in Bolden v. Pennsylvania State Police, 578 F.2d 912

(3d Cir. 1978), the Fraternal Order of Police (“FOP”) had participated, but

had not intervened, in an action that led to an affirmative action consent

The same is true here. Just as the Federation “was tracking the

progress” of the earlier litigation in Gorsuch (744 F.2d at 970),

the BFA here followed the Jefferson County litigation from the

outset (see J.A. 772-73). Indeed, the BFA sought for its mem-

bers the best of both worlds: it expressly asked the district court

to consider the interests of nonminority employees even though

they “have not been made a party to this action”. J.A. 703.

C. The Rule Barring Collateral Attacks on Consent

Decrees by Persons Who Had Notice and the Op-

portunity To Be Heard Is Consistent with the Re-

quirements of Due Process.

Due process requires that before being bound by a judi-

cial determination, a person must be afforded notice and the op-

portunity to be heard. As this Court held in Mullane v. Central

Hanover Bank & Trust Co., the “elementary and fundamental

requirement of due process in any proceeding which is to be ac-

corded finality is notice reasonably calculated, under all the

circumstances, to apprise interested parties of the pendency of

the action and afford them an opportunity to present their ob-

jections”. 339 U.S. at 314 (emphasis added). See also Ma-

thews v. Eldridge, 424 U.S. at 333 (the “fundamental

requirement of due process is the opportunity to be heard ‘at a

meaningful time and in a meaningful manner’” (citation

omitted)). Moreover, “[ijt has been said so often by this Court

and others as not to require citation of authority that due process

decree. When the FOP sought to intervene four years later to challenge that

decree, the Third Circuit denied its application:

“[T]he FOP was seeking on behalf of its members the best of all pos-

sible worlds. Its counsel . . . could supplant, or at least supplement,

the Assistant Attorney General assigned to the case in negotiating the

most favorable consent decree, while it preserved the option of sub-

sequently mounting collateral attacks on the same decree.” Id. at 916.

The court held that the FOP was a de facto party to that litigation and was

bound by its results. In doing so, the court noted that the FOP, like manv

nonparties with notice, chose not to intervene for strategic reasons. At an

FOP meeting earlier in the litigation, its attorney admitted his “sandbagging”

Strategy: “I’m not going to let the court let me in—if he wants me in now in

that capacity, I’m not going to let him bring me in. I’m going to withdraw

so that you are not parties to it.” Id. at 916.

is flexible and calls for such procedural protections as the par-

ticular situation demands”. Morrisey v. Brewer, 408 U.S.

471, 481 (1972). Under the circumstances here, plaintiffs had

their due process before the consent decrees were approved and

have no due process right to bring these collateral lawsuits.

There can be no doubt that plaintiffs were afforded both

notice and the opportunity to be heard before the entry of the

consent decrees, and they have never claimed otherwise. The

BFA kept apprised of the well-publicized litigation that led to

the consent decrees (J. A. 772-73), and the Eleventh Circuit con-

cluded that “BFA members . . . knew at an early stage in the

proceedings that their rights could be adversely affected”.

J.A. 154. When the consent decrees were proposed, notice of

the fairness hearing was given by publication. Pet. App. 146a,

171a-75a, 222a-23a, 248a; J.A. 695, 697-98, 727-28. Such ac-

tual notice satisfies due process. See National Equip. Rental,

Lid. v. Szukhent, 375 U.S. 311, 315 (1964).

The fairness hearing provided plaintiffs the opportunity

to be heard. Not only did they have the opportunity to be heard,

but their interests were presented by the BFA and Mr.

Fitzpatrick and were heard. See J.A. 699-716, 728, 730, 732-

40, 747-50, 770. Even though the BFA chose to appear as an

objector rather than an intervenor, its opportunity was mean-

ingful, as demonstrated by the fact that the district court

“reviewed with care” its objections. See Pet. App. 246a. ”

There is no due process requirement for an additional hearing

27 See Mathews, 424 U.S. at 333-35, 340-43 (terminating disability

benefits causes less “potential deprivation” than terminating welfare benefits

and therefore requires less procedural protection); of. United States v.

Paradise, 107 S. Ct. 1053, 1073 (1987) (plurality opinion) (the denial of a

promotion raises lesser Equal Protection concerns than a layoff); id. at 1076

(Powell, J., concurring).

28 Objections by nonparties have led to modifications of proposed

consent decrees by parties and courts. See, e.g., United States v. City of

Miami, 664 F.2d at 438-39, 444 (opinion of Rubin, J.); Dawson v. Pastrick,

600 F.2d 70, 73-74 (7th Cir. 1979); Johnson v. North Carolina State High-

way Patrol, 91 F.R.D. 406, 407 n.1 (E.D.N.C. 1980); Vulcan Soc'y of

Westchester County, Inc. v. Fire Dep't of White Plains, 505 F. Supp. 955,

960 (S.D.N.Y. 1981).

when there is little “probable value” of that hearing, particular-

ly where, as here, plaintiffs have come forward with nothing

that the district court did not consider in 1981. See Mathews,

424 U.S. at 343-46; see also n.23, supra. 29

The fact that plaintiffs, with notice of the original litiga-

tion and the proposed consent decrees, failed to intervene in

that action in no way means that they were not afforded the

process due them. It is the opportunity to be heard that is the

essence of due process. As this Court held in Kremer, the “fact

that [plaintiff] failed to avail himself of the full procedures

provided by state law does not constitute a sign of their inade-

quacy”. 456 U.S. at 485 (citation omitted). There, the Court

held that the plaintiff had not been denied due process even

though his decision to pursue a remedy in state proceedings

precluded him from relitigating his claim in federal court. /d.

at 482-85. Similarly, in Marino v. Ortiz, 108 S. Ct. 586, 587

(1988) (per curiam), the objectors’ decision not to intervene and

become parties to the consent decree litigation prevented them

from appealing the approval of the decree. And in Penn-

Central, the Court expressed no concern that due process would

be violated by precluding a nonparty from relitigating an issue

when that nonparty “had an adequate opportunity to join in the

litigation”. 389 U.S. at 505. Having foregone the opportunity

to be heard at the fairness hearing, plaintiffs have no due

process right for a second opportunity to be heard in a collateral

attack.

II. IN ANY EVENT, PLAINTIFFS’ DISCRIMINATION

CLAIMS WERE TRIED BELOW.

Although the district court held—correctly, the Martin

Petitioners submit-—that plaintiffs could not collaterally attack

a Title VII consent decree, it nevertheless considered, in the al-

ternative, the merits of their attack. It tried plaintiffs’ reverse

discrimination claims, reconsidered the lawfulness of the con-

29 Thus, the due process concerns expressed in the dissent in Ashley,

464 U.S. 900, are not present here. There, nonminority employees could not

have had notice or the opportunity to be heard because the consent decree

was submitted on the same day that the United States’s complaint was filed,

three days prior to its approval without a hearing. See pp. 17-18, supra.

sent decrees and held that the promotions at issue did not vio-

late plaintiffs’ rights. Without referring to those facts, the

court of appeals inexplicably found that “the [district] court did

not decide the plaintiffs’ Title VII and equal protection claims”.

Pet. App. 12a. 9 That finding had no basis and is clearly er-

roneous as a matter of law.

After the complaints were filed below, defend..its filed

motions to dismiss them as impermissible collateral attacks on

the consent decrees. See J.A. 121-27, 220-24. In denying

those motions, the district court stated that it was prepared to

hold that “if preferential treatment is mandated by the decree,

then it constitutes a good defense”. J.A. 237. 7! However,

neither party limited itself to that issue. Throughout the pretrial

proceedings plaintiffs maintained that the decrees were unlaw-

ful (see, e.g., Plaintiffs’ First Pre-Trial Mem. at 29-54 (Dec. 5,

1985) (“Plaintiffs’ Mem.”)), at trial both sides introduced evi-

dence concerning the validity of the decrees and the court did

not dispose of that issue until the trial’s conclusion.

ti 30 Just as inexplicably, the court of appeals denied without comment

— for rehearing pointing out this alternative holding. Pet. App. 25a-

31 The “mandated” test is from the Eleventh Circuit's opinion in

United States v. Jefferson County, 720 F.2d at 1518; J.A. 158. The district

court construed Jefferson County ‘o mean that acts “mandated” by the

decrees could not be held to be discriminatory, but that actions merely per-

mitted by the decrees might not be absolutely protected by them. See J.A.

237-38, 280-82. Thus, the primary focus of the 1985 trial was whether the

challenged Promotions were required by the decrees. Plaintiffs argued that

because the City decree excuses the City from meeting its affirmative action

goals if it hires or promotes a nonminority “who is demonstrably better

qualified based on the results of a job related selection procedure” (Pet. App

60a, 104a, 124a), the promotion of such a “demonstrably better qualified”

person would not be “mandated” by the decrees. See J.A. 231, 414. There-

fore, much of the evidence at the 1985 trial concerned the relative qualifica-

tions of plaintiffs and the persons promoted.

At the conclusion of trial, the district court held that the plaintiffs had

failed to prove that they were “demonstrably better qualified [than the per-

sons promoted] based on the results of a job related selection procedure”.

Pet. App. 27a-29a, 77a-79a. The challenged promotions were found to be

required by the decrees and thus not discriminatory.

A. Both Sides Briefed the Issue of the Validity of the

Consent Decrees in Their Pre-Trial Memoranda.

In their complaints, plaintiffs directly attacked the consent

decrees, seeking a declaratory judgment that the decrees were

“void as illegal, unconstitutional, vague and indefinite, and

violative of public policy”, and they sought to enjoin the City

from complying with the decrees’ provisions. See Pet. App.

115a; J.A. 35-36, 38-39, 91-92, 98-99. Both parties in their

pre-trial memoranda briefed extensively the question whether

the consent decrees’ race-conscious relief was impermissible

reverse discrimination. See Plaintiffs’ Mem. at 29-54;

Defendants’ Joint Pre-Trial Mem. at 69-84 (Dec. 12, 1985)

(“Defendants’ Mem.”). Plaintiffs, in their memorandum, ar-

gued, inter alia, that the consent decrees unnecessarily tram-

meled their interests (see Plaintiffs’ Mem. at 29-30, 36-38), that

the relief was improper under United Steelworkers v. Weber,

443 U.S. 193 (1979) (see id. at 36-38), and that it was unlaw-

ful under Firefighters Local 1784 v. Stotts, 467 U.S. 561

(1984) (see id. at 38-40, 42, 48-54).

Defendants maintained that plaintiffs’ collateral attack

was improper. Defendants’ Mem. at 65-68. Nevertheless,

they argued in their pretrial memorandum that “assuming that

the validity of the Decree is at issue in this case, the Decree’s

affirmative action plan for the hiring and promotion of blacks

is clearly a valid remedy to correct the effects of prior racial

discrimination”. /d. at 65. Defendants then argued that the

race-conscious relief was justified by the significant evidence

of discrimination by the City (see id. at 72-80), that the numeri-

cal goals of the decree were appropriate (see id. a? 81) and that

the decrees did not unnecessarily trammel the interests of white

employees (see id. at 82). There can be no doubt that both par-

ties prepared for trial contemplating that the validity of the

decrees’ race-conscious relief would be before the district

court.

B. Evidence Was Introduced at Trial on the Issue

Whether the Consent Decrees Were Lawful or Vio-

lated the Rights of the Plaintiffs.

Although defendants asserted that plaintiffs could not col-

laterally attack the decrees, they recognized that plaintiffs had

asked the district court to declare the decrees unlawful and that

the district court had not yet ruled on whether the collateral at-

tacks could go forward. Thus, at trial defendants introduced

substantial evidence from which the district court could

evaluate the lawfulness of the decrees. 92 Defendants tried their

case in the alternative in order to avoid just the result that the

court of appeals imposed—an unnecessary retrial.

To prove that the consent decrees satisfied Title VII and

the Equal Protection Clause, defendants introduced—and the

district court admitted—evidence that (1) there was sufficient

evidence of discrimination to justify the decrees’ race-con-

scious relief, and (2) the decrees did not unnecessarily trammel

the interests of plaintiffs. > > That evidence is relevant only to

whether the decrees are valid; *4 it has nothing whatsoever to

32 The United States sought to prevent defendants from introducing

evidence to support the validity of the consent decrees. See J.A. 351-52. It

argued that the “United States . . . is not challenging the validity of the

Decree” and although “the private plaintiffs seek to challenge the Decree”,

there are “limitations on the extent to which a nonparty can undermine a prior

judgment” that rendered defendants’ evidence in support of the decrees ir-

relevant. Memorandum in Support of Motion in Limine of United States at

4-5 (Dec. 3, 1985) (citation omitted). The district court denied the United

States’s motion, holding that the evidence supporting the lawfulness of the

decrees might be “of some significance”, especially to “an appellate court

reviewing the matier”. J.A. 353 (emphasis addeil). At trial, counsel for the

United States repeated its objection, stating “[wJe think that the plaintiffs are

limited in their ability to challenge the validity” of the decrees (J.A. 405),

which just reflected the point obvious to all—plaintiffs were attacking the

decrees.

33 For example, defendants proved that plaintiffs’ interests have not

been unduly trammeled because 8 of the 15 plaintiffs had been promoted by

the time of trial, and the others were free to continue to compete for a promo-

tion. See Pet. App. 40a, 85a; J.A. 371, 377-79, 385; R2-265; R3-313 to 14,

358 to 59, 363, 380; R7-976 to 77, 997 to 98. As of today, it appears that

all but two plaintiffs have been promoted. See the consent decree compliance

reports filed with the district court.

34 See Weber, 443 U.S. at 197, 208; Johnson v. Transportation Agen-

cy, 107S. Ct. 1442, 1449-53, 1455-56 (1987); see also Local 28, Sheet Metal

Workers’ Int'l Ass'n v. EEOC, 1068. Ct. 3019, 3051-53 (1986) (“Sheet Metal

Workers”) (plurality opinion); id. at 3055-57 (Powell, j., concurring);

Paradise, 107 S. Ct. at 1065-66, 1070-73 (plurality opinion); id. at 1075-76

(Powell, J., concurring).

do with whether the challenged promotions were “mandated”

by the decrees.

The evidence of discrimination that defendants introduced

to establish the validity of the decrees was overwhelming. Not

only did defendants introduce the transcripts, exhibits and

opinions from the 1976 trial, the 1979 trial and the fairness

hearing, 35 but they introduced additional evidence of dis-

crimination. 2° See also pp. 4-6, supra. Defendants also in-

troduced evidence of “informal mechanisms [that] obstruct

equal employment opportunities”, “even where the employer

.. . formally ceases to engage in discrimination”. Sheet Metal

Workers, 106 S. Ct. at 3036. For example:

e Mr. Duncan, the head of the Engineering Department,

favored Mr. Ware (a plaintiff here) for promotion

over Mr. Thomas because Mr. Ware was white. Pet.

App. 3la, 56a, 81a, 100a-Ola.

e Black firefighters have been instructed to sleep in par-

ticular beds in the firehouse during 24-hour shifts,

even though white figg fighters are free to sleep in any

bed. R7-953 to 54.

e@ The request by Mr. Davis, a black firefighter, for

EMT III training was rejected by his white supervisor

without explanation, despite the fact that he had been

a medic in Vietnam and had studied in a physician’s

assistant program at Emory npeiny * He did not

— the training until four years later. R6-819

to 22.

35 See DX 1422, 1423, 1424, R10-1279 to 81, R10-1305 to 07;

J.A. 593-694, R10-1280 to 81; DX 1977, DX 1978, DX 1978A, DX 1979,

DX 1980, DX 1980A, J.A. 403-408; J.A. 427-71, 407-08.

36 See J.A. 380-81, 383-84; J.A. 436-47, R1-27; J.A. 427-28, 398-

400; DX 2177, R9-1273 to 74, R10-1284; DX 2210, DX 2212, DX 2213, DX

2216, R9-1292 to 96, 1300 to 04.

37 In the Streets and Sanitation Department, the City had racially

segregated bathrooms as recently as 1979. 1979 trial PX 43 at 73-81, 1979

trial PX 44 at 98-104, 1979 trial PX 48 at 77, 80-85, 1979 trial PX 50 at 37-

40, J.A. 403-08.

e Although firefighters are usually made acting officer

based on station seniority, Mr. Wilks, who is white

and a plaintiff here, was made an acting officer over

Mr. Davis, who is black and then had greater station

seniority. R4-454 to 55; R6-825 to 26.

e@ Mr. Isaac, who is black, was assigned back-to-back

watches to punish him for his statement that he

a that the consent decrees were fair. R6-888

0 90.

It was not only defendants who tried the decrees’ validity.

Counsel for plaintiffs argued below in summation that the

evidence showed that the consent decrees’ race-conscious relief

was unlawful. He argued that “the use of race in a conclusory

fashion is improper” (J.A. 412, 415-16), that none of the blacks

who were promoted had been shown to be individual victims of

discrimination (J.A. 411-13), that there was insufficient

evidence of prior discrimination to justify race-conscious relief

GJ A.4 10-12), and that the short-term goal for promoting blacks

impaired the opportunities of white employees (J.A. 413-15).

He concluded that the issue whether plaintiffs’ interests were

trammeled because allegedly less qualified persons were

promoted instead “has been framed quite well”. J.A. 414.

Counsel for defendants responded in summation that there was

more than enough evidence of discrimination to support the

decrees and that the decrees did not unnecessarily trammel the

rights of whites. J.A. 422-26. None of those arguments related

to whether the City’s actions had been required by the decrees;

they were offered solely on the issue of the decrees’ validity.

Plaintiffs’ counsel had every opportunity to present his case,

and no evidence that he sought to introduce to demonstrate that

the decrees were invalid was excluded by the district court.

C. The District Court Explicitly Ruled on the Very

Question That the Court of Appeals Remanded for

Its Consideration.

In the face of plaintiffs’ arguments that the decrees’ race-

conscious relief was unlawful reverse discrimination, and after

considering the extensive evidence adduced at trial on that

issue, the district court expressly rejected plaintiffs’ claims of

discrimination and held that the “City Decree is lawful”. Pet.

App. 61a, 106a. The district court further held that:

“[u)nder all the relevant case law of the Eleventh Circuit and

the Supreme Court, it is a proper remedial device, designed

to overcome the effects of prior, illegal discrimination by

the City of Birmingham.” Pet. App. 62a, 106a.

The district court specifically stated that, although it had con-

sidered the lawfulness of the decrees in 1981 when it approved

them, it was ruling on that question again:

“In United States v. Jefferson County . . . this Court

found the City and Board Decrees to be warranted by the

evidence of discrimination by the City, based on the fac-

tors set forth in United States v. Alexandria, 614 F.2d

1358 (Sth Cir. 1980), and the other applicable decisions

of the several courts of appeals. Plaintiffs have

demonstrated no facts demonstrating that the previous

conclusion of the Court was in any way in error.” Pet.

App. 39a, 84a-85Sa.

The district court specifically held that the interests of white

employees were not “trammeled by the Decree”. Pet. App. 40a,

85a.

It is plain that, in focusing on the district court’s alterna-

tive ruling concerning collateral attacks, the court of appeals

simply overlooked that the district court allowed the collateral

attack to proceed and ruled that the decrees’ race-conscious

relief was lawful and that plaintiffs’ claims of discrimination

were without merit. That question was briefed, tried, argued

and decided below.

On appeal, not even plaintiffs suggested to the court of ap-

peals that the district court had not tried their claims. To the

contrary, they acknowledged that “[a]gain, in its December

1985 Conclusions of Law, the District Court upheld the legality

of the Birmingham Consent Decree”. Brief for Plaintiffs-Ap-

pellants-Cross-Appellees Wilks, et al., at 53. Indeed, in

response to direct questions from Judge Tjoflat during oral ar-

gument, counsel for plaintiffs expressly denied that the trial

court had deprived plaintiffs of an opportunity to present their

claims of reverse discrimination. > Regardless of what this

38 Pursuant to Eleventh Circuit Rule 34-4(g), oral arguments are

recorded by that court, but copies of the transcripts are not available to coun-

sel.

Court decides on the permissibility of collateral attacks, the

conclusion by the court of appeals that plaintiffs did not have

their day in court in this case is flatly wrong.

The district court has already considered the lawfulness

of the decrees’ race-conscious relief twice—once in 1981 when

it approved the decrees, and again in this case in 1985 when it

tried and rejected plaintiffs’ reverse discrimination claims. The

decision by the court of appeals would require the district court

to consider the lawfulness of the decrees yet a third time. That

would needlessly consume judicial resources while extending

for all the unsettled situation that has existed since this litiga-

tion began fourteen years ago.

CONCLUSION

For the foregoing reasons, Petitioners John W. Martin,

et al., respectfully request that the decision of the court of ap-

peals be reversed and that the case be remanded with instruc-

tions to enter judgment for the defendants.

August 18, 1988

Respectfully submitted,

ROBERT D. JOFFE

Counsel of Record

WILLIAM L. ROBINSON THOMAS D. BARR

RICHARD T. SEYMOUR ROBERT F. MULLEN

STEPHEN L. SPITZ PAUL C. SAUNDERS

LAWYERS’ COMMITTEE FOR ALDEN L. ATKINS

CIVIL RIGHTS UNDER LAW MARK A. SIROTA

1400 Eye Street, N.W. JAMES E. FLEMING

(Suite 400) CRAVATH, SWAINE & MOORE*

Washington, D.C. 20005 One Chase Manhattan Plaza

(202) 371-1212 New York, New York 10005

(212) 428-1000

SUSAN W. REEVES

REEVES & STILL

714 South 29th Street

Birmingham, Alabama 35233

(205) 322-6631

Attorneys for Petitioners

John W. Martin, et al.

*Keenan R. Keller, alaw student in the Cravath, Swaine & Moore sum-

mer program, assisted in the preparation of this brief.

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.