# Petitioners Brief — Zant v. Corn

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1988
- **Citation:** 486 U.S. 1023

## Text

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.

Sf

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

27

28

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
iv

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

21

26

3
17, 21, 34

15

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
a

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

21

24

15, 21, 26

24
15

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

18

15

25

27
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

34
14, 32-34
23, 26, 27,

30-31
32-33
14, 32
33

27

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

25

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, 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).

16

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

:

17

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).

18

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 > ~

'
:
:
:

19

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.

20

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,

:
;

21

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-

22

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.

A
:

23

“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.

24

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).

25

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

26

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

27

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.

28

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).

29

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)).

30

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-

31

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

32

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.

33

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).

34

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.

35

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.

36

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

37

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).

38

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.

39

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:

40

“[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.

41

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.

42

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0375%3A10. Public record. Not legal advice.