Brief for the United States — Zant v. Corn

Supreme Court brief1988

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“1614, 87-1639, and 87-

OCTOBER TERM, 1988

JOHN W. MARTIN, ET AL., PETITIO

Vv.

ROBERT K. WILKS, ET AL.

PERSONNEL BOARD OF JEFFERSON COUNTY,

ALABAMA, ET AL., PETITIONERS

ROBERT K. WILKS, ET AL.

RICHARD ARRINGTON, JR., ET AL., PETITIONERS

Vv.

ROBERT K. WILKS, ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

CHARLES FRIED

Solicitor General

WM. BRADFORD REYNOLDS

Assistant Attorney General

DONALD B. AYER

Deputy Solicitor General

ROGER CLEGG

Deputy Assistant Attorney General

MICHAEL R. LAZERWITZ

Assistant to the Solicitor General

DENNIS J. DIMSEY

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

i ew

QUESTION PRESENTED

Whether individuals may be barred from chal-

lenging employment-related actions taken under

“ve a consent decree entered in a Title VII suit, where

the individuals were neither parties to nor interve-

nors in the action and did not consent to the terms

of the decree.

(1)

TABLE OF CONTENTS

Page

a ecnnsvecsonssavousnsosees 2

EEE SSA 2

EI EE LTT 2

ee snnenestoensnoanccces 9

Argument:

Individuals are entitled to challenge employment-

related actions taken under consent decrees to

which they were not a party _..200000202.2.2222eeeeee eee 11

A. This case properly presents the question

whether individuals who are not a party to a

consent decree may challenge it in subsequent

ec cccssenenssecceoscs 11

B. The collateral attack doctrine is inconsistent

with notions of procedural fairness, which re-

quire that a person be bound only upon his own

agreement or after receiving his day in court... 12

C. The collateral attack doctrine is inconsistent

with the rules of intervention and joinder es-

tablished by the Federal Rules of Civil Proce-

ES SS LE RES) i 17

D. The collateral attack doctrine cannot be justi-

fied by reference to the policy favoring volun-

tary settlements under Title VII... 27

SSL 31

TABLE OF AUTHORITIES

Cases:

Adams v. Proctor & Gamble Mfg., 697 F.2d 582

(4th Cir. 1983), cert. denied, 465 U.S. 1041

a epienansstemeinsnnenccsces 17

Cases—Continued : Page

Ashley v. City of Jackson, 464 U.S. 900 (1983) ..12, 25, 26

Blonder-Tongue Laboratories, Inc. v. University

Found., 402 U.S. 313 (1971).......................-csesseeeee 12, 12

Bolden v. Pennsylvania State Police, 578 F.2d 912

2 3. yee eens en 23

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

RIED icsccrnssisssssinsisstiosescteniesitctnhecnnsecentachasiintieaeaieia ibaa 28

Chase Nat’l Bank v. City of Norwalk, 291 U.S.

GE CO ccinintnsincnirniviscntiaeittiaiissteniiamsammnmiamaneieaieiailaiia 18

Chicago, RI. & P. Ry. v. Schendel, 270 U.S. 611

GITIIIEE acdessinccscoccosssconcsabeuniensinvedammensanseinadieeiiaathnnnéen 14

Colorado River Water Conservation Dist. V.

United States, 424 U.S. 800 (1976) ........... least 24

Consumers Union of the United States, Inc. V.

Consumer Products Safety Comm’n, 590 F.2d

1209 (D.C. Cir. 1978), rev’d sub nom. GTE

Sylvania, Inc. v. Consumers Union of the

United States, Inc., 445 U.S. 375 (1980) .-....... 20

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

CE Gy . Be ccctnasesscecocssiecepsecotecnsousesniddacenadanniceuns 26, 27

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

& Power, 658 F.2d 694 (9th Cir. 1981) -........... 8,18

Devereaux Vv. Geary, 765 F.2d 268 (1st Cir. 1985),

cert. denied, 478 U.S. 1021 (1986) -...................... 17, 27

Dunn v. Carey, 808 F.2d 555 (7th Cir. 1986) ....... 26

Firebird Society, Inc. v. Board 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

CIGD cxcconkes <oncensiiscnidesnnmepinrspandinissdtensisiianeanineeniints 27

Firefighters v. Cleveland, 478 U.S. 501 (1986) ....16, 17,

25, 26, 27, 28

Ford Motor Co. v. EEOC, 458 U.S. 219 (1983)... 25, 28

Franks v. Bowman Transportation Co., 424 U.S.

GOS Ci itrcesetatectcaccitetcbiteamininsstitiinasntionaentiiniianiniui 25

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

Cir. 1981), cert. denied, 455 U.S. 940 (1982)... 18

Gratiot County State Bank v. Johnson, 249 U.S.

TIE scccndectstehiensstiniinninssssisnitigatahbensdetdpeaiilaanniel 18

Hansberry v. Lee, 311 U.S. 32 (1940) ..................... 12, 13

Cases—Continued : Page

Harrisburg Chapter of the American Civil Liber-

ties Union vy. Scanlon, 500 Pa. 549, 458 A.2d

Ra RE EIT Ae OES a 25

Henson Vv. East Lincoln Township, 814 F.2d 410

(7th Cir. 1987), cert. granted, No. 87-5461

+ i a : RTE Ree PLM INL aes 21, 22

Johnson Vv. Transportation Agency, No. 85-1129

I, NN 7, 25-26, 28

Jones V. Bell Helicopter Co., 614 F.2d 1389 (5th

FERS RRR eI eRane Ra” SINT KCN aC 17

Kerotest Mfg. v. C-O-Two Fire Equip. Co., 342

a 24

Kirkland v. New York State Dep’t of Correctional

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

denied, 465 U.S. 1005 (1984) 2.0002... 27

Mallow v. Hinde, 25 U.S. (12 Wheat.) 193

Re al EI SEE RE EAPO aT 16

Montana v. United States, 440 U.S. 147 (1979)... 13

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

RLS hep iss EAR RRD AIRING, Stee pores IRN EROR re SM 23

Parklane Hosiery Co. v. Shore, 439 U.S. 322

RES RE ES Beceee ene PT EE AT OS LO 12, 13

Penn-Central Merger & N & W Inclusion Cases,

RR ee rR ee 14

Provident Tradesmens Bank & Trust Co. v. Pat-

we cD 14, 15, 16

Reynolds vy. National Football League, 584 F.2d

NETL Re OPE 22

Robertson v. National Basketball Ass’n, 556 F.2d

FRR ran... ey ees 22

Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573

I re 18

Society Hill Civic Ass’n v. Harris, 632 F.2d 1045

Se SI IID iccricsisevsisenshnnunbielhckianrenteneita ial Atal 18

Stotts v. Memphis Fire Dep’t, 679 F.2d 541 (6th

Cir. 1982), rev’d sub nom. Firefighters Local

Union No. 1784 Vv. Stotts, 467 U.S. 561 (1984).. 16,

17-18, 25, 30

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

Cir. 1982), cert. denied, 464 U.S. 900 (1983)... 17

Cases—Continued : Page

United Airlines v. McDonald, 482 U.S. 385

|, | eee 21

United States v. Mendoza-Lopez, No. 85-2067

0 | ean 17

United States v. Yonkers Bd. of Educ., 801 F.2d

8) Bo | een 26-27

Wilder v. Bernstein, 645 F. Supp. 1292 (S.D.N.Y.

1986), aff’d, 848 F.2d 1338 (2d Cir. 1988) ....... 25

W.R. Grace & Co. v. Rubber Workers, 461 U.S.

2 a 17, 25, 29

Wygant v. Jackson Board of Education, 476 U.S.

i) acess 29

Zenith Radio Corp. v. Hazeltine Research, Inc.,

— lhl OD ODF, O—E 12,18

Constitution, statutes and rules:

U.S. Const. Amend. XIV (Equal Protection

III... ..sceunsensiisnstectinapesinniiicieainnnntimmesnatsatnieent 6,11

Civil Rights Act of 1964, Tit. VII, 42 U.S.C.

BE OO CO icieeccenccnisscrsensesinceeennsetendonenpnnecennensanesnee 2,3

Pg RS | —, arene 17

Clean Air Act, 42 U.S.C. 7604 (b) (1) (B) ............-...- 14

Clean Water Act, 33 U.S.C. 1365(b) (1) (B) ~.....--.... 14

Resource Conservation and Recovery Act, 42

U.S.C. (Supp. IV) 6972(b) (1) (B) -.......-....-..---- 14

I ND ciiiccccsrnnaciocnsescheecetenncenesincdosssaitinieioese 23

I inci saeniineisatiitonilsisiatapmeninetneidaniiibie 24

IE. . sscisnaiininibidienntiiacastisinnnsiiilinanainiaaninn 2

I a cscinncnsiscececteiernctntenaeticetcsnesateatinnabiilinetiie 2

Fed. R. Civ. P.:

Se cee ee 10, 13, 19

advisory committee note ...................------------ 19,22

I oa cinsinccndtiacusnninienacinmunnnnggectionengecntifaita 19, 20

a cehteteienbianapadiniinimenancenith 19, 20

a oetiseebionbiennaineatenil 13, 21

SII nos sccrensssernpnsebneneninindiqntonnocsmmanntinges 22

IED oo ccccscnnnecseonssemeniecsitininnncncmsoncesets 22

IIE << csnccmiscnewsunsnetineiaeaceosnpatanapgeeeineti 22

ID TED socienecscengrnnseversesenesecsneneoenpmamingsinioniittis 22

BE EID eiicieiccenceerscnevemcsinennsestecenintsenentiestaittinnstons 22

Bae BBCP nesses eve ccensecsvcnecccscsscssscessoevsncesorresnnnennin 5, 18

VII

Constitution, statutes and rules—Continued: Page

ER eR ROT TO EE SL ean 18

SESS ae en ae a 23

EPI RN Se ACRES AO ee 24

Miscellaneous:

Cooper, The Collateral Attack Doctrine and the

Rules of Intervention: A Judicial Pincer Move-

ag on Due Process, 1987 U. Chi. Legal F.

PN AED TAS Seer ESE Oe RE TOI © 26

Epstein, Wilder v. Bernstein: Squeeze Play By

Consent Decree, 1987 U. Chi. Legal F. 209... 25

Kramer, Consent Decrees and the Rights of Third

Parties, 87 Mich. L. Rev. (1988) (forthcom-

RE Te eee Ae ce ae oS ee a ee 24, 26

Laycock, Consent Decrees Without Consent: The

Rights of Nonconsenting Third Parties, 1987

8 Ee A 20, 26

McCoid, A Single Package for Multiparty Dis-

putes, 28 Stan. L. Rev. 707 (1976) _.................. 23

Note, Defendant Class Actions, 91 Harv. L. Rev.

ER RONG ISTE RR PES M2 21

C. Wright, A. Miller & E. Cooper, Federal Prac-

tice and Procedure:

. SS | — 4S XE aneenennrE se: 13, 23-24

Vol. 18 (1st ed. 1981)

7A C. Wright, A Miller & M. Kane, Federal

Practice and Procedure (2d ed. 1986)

Aaiesibiealiecnaatinhed 12-13, 14, 18, 24, 25

Iu the Supreme Court of the United States

OCTOBER TERM, 1988

No. 87-1614

JOHN W. MARTIN, ET AL., PETITIONERS

ROBERT K. WILKS, ET AL.

No. 87-1639

PERSONNEL BOARD OF JEFFERSON COUNTY,

ALABAMA, ET AL., PETITIONERS

Vv.

ROBERT K. WILKS, ET AL.

No. 87-1668

RICHARD ARRINGTON, JR., ET AL., PETITIONERS

Vv.

ROBERT K. WILKS, ET AL.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

(1)

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 3a-

24a) is reported at 833 F.2d 1492. The district

court’s initial findings of fact and conclusions of law

(Pet. App. 27a-66a) are reported at 39 Fair Empl.

Prac. Cas. (BNA) 1431. The district court’s addi-

tional findings of fact (Pet. App. 69a-76a) are

unreported.

JURISDICTION

The judgment of the court of appeals was entered

on December 15, 1987. Timely petitions for rehear-

ing were denied on January 25, 1988 (Pet. App.

25a). The petition for a writ of certiorari in No. 87-

1614 was filed on March 30, 1988; the petition for a

writ of certiorari in No. 87-1639 was filed on April 1,

1988; and the petition for a writ of certiorari in No.

87-1668 was docketed as of March 31, 1988. The pe-

titions were granted and consolidated on June 20,

1988. The jurisdiction of this Court rests on 28

U.S.C. 1254(1).

STATEMENT

1. In January 1974, the Ensley Branch of the Na-

tional Association for the Advancement of Colored

People and seven black individuals filed separate class

action complaints in the United States District Court

for the Northern District of Alabama against the

City of Birmingham (City), the Personnel Board of

Jefferson County, Alabama (Board), and other local

government officials (Pet. App. 3a-4a). The complaints

alleged that the City and Board had engaged in ra-

cially discriminatory hiring and promotion practices

in various public service jobs, in violation of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e

et seq., and 42 U.S.C. 1981 and 1983 (Pet. App. 4a &

n.3). In May 1975, the United States filed a similar

complaint against the City and Board, alleging a pat-

tern and practice of discriminatory hiring practices

against blacks and women (ibid.).

The district court consolidated the three cases and

held a bench trial in December 1976 limited to the

issue of the validity of police and firefighter entry-

level tests used by the City and Board. In January

1977, the court found that the tests adversely affected

black applicants and were not sufficiently job-related

and thus held that the tests were discriminatorv in

violation of Title VII (Pet. App. 4a). See Ensley

Branch of the NAACP vy. Seibels, 13 Empl. Prac.

Dee. (CCH) § 11,504 (N.D. Ala. 1977), aff’d, 616

F.2d 812 (5th Cir.), cert. denied, 449 U.S. 1061

(1980).

In August 1979, the district court held a second

trial concerning the validity of other testing and

screening devices used by the Board. Before the

court issued its decision, however, the parties entered

into ultimately fruitful settlement negotiations. Pet.

App. 4a-5a. In June 1981, the plaintiffs and the

United States jointly entered into two consent de-

crees—one with the City (Pet. App. 122a-201a), and

one with the Board (id. at 202a-235a). Although

containing no admissions or adjudications of liability,

the decrees provided “an extensive remedial scheme,

including long-term and interim annual goals for the

hiring of blacks as firefighters and the promotion of

blacks to the position of fire lieutenant” (id. at 5a

(footnote omitted)). Paragraph 2 of the decree

with the City made clear, however, that (id. at 124a)

[n]othing herein shall be interpreted as requir-

ing the City to * * * promote a less qualified per-

son, in preference to a person who is demonstra-

bly better qualified based upon the results of a

job related selection procedure.

2. After entering an order provisionally approving

the decrees,’ the district court, on August 3, 1981,

held a fairness hearing to consider the objections of

interested nonparties (Pet. App. 238a). The Bir-

mingham Firefighters Association 117 (BFA),

among others, appeared and filed objections as amici

curiae (J.A. 699-713). After the hearing but before

final approval of the decrees, the BFA and two of its

members moved to intervene as of right in each of

the three original actions, contending that the pro-

posed decrees would adversely affect their rights

(J.A. 772-776; Pet. App. 5a-6a). On August 21,

1981, the district court entered an order approving

the consent decrees and denying the motions to inter-

vene as untimely (Pet. App. 236a-249a). See United

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

(BNA) 1834 (N.D. Ala. 1981), aff’d, 720 F.2d 1511

(11th Cir. 1983).

3. After the entry of the district court’s order,

seven white firefighters, all members of the BFA,

filed a complaint in the district court against the City

and the Board. See Bennett v. Arrington, No. CV-

82-P-0850-S (N.D. Ala.) (Pet. App. 110a-121a).

The complaint alleged that enforcement of the con-

sent decrees would discriminate against them in vio-

lation of Title VII and sought a preliminary injunc-

tion. The district court denied the request for in-

junctive relief. J.A. 37; Pet. App. 6a, 110a.

1 That order, issued on June 8, 1981, also certified the settle-

ment classes. Under that order, the parties published in local

newspapers notice of the decrees, inviting interested persons

to appear at the scheduled fairness hearing before the district

court. J.A. 694-696; see id. at 697-698. The parties also mailed

to each member of the minority and female subclasses an

explanation of the decrees and notice of the scheduled fairness

hearing. See Pet. App. 171a-175a, 180a-201a.

The court of appeals affirmed. United States v.

Jefferson County, 720 F.2d 1511 (11th Cir. 1983)

(J.A. 149-161).* The court held that the white fire-

fighters were not entitled to injunctive relief because

of their inadequate showing of irreparable harm

(720 F.2d at 1519-1520; J.A. 160-161). The court

also dismissed the firefighters’ appeal from the denial

of intervention, holding that the district court had

not abused its discretion, in part because the fire-

fighters could “institut{e] an independent Title VII

suit, asserting the specific violations of their rights”

(720 F.2d at 1518; J.A. 158).°

4, After unsuccessfully seeking preliminary in-

junctive relief, the firefighters pursued their com-

plaint in the district court against the City and the

Board. A second group of white firefighters, the

Wilks respondents, filed a similar complaint against

* The appeal from the district court’s order denying injunc-

tive relief was consolidated with the appeal from the court’s

order denying intervention (J.A. 152-153; Pet. App. 7a).

* The court of appeals also upheld the district court’s exer-

cise of its discretion under Fed. R. Civ. P. 24(a) on the

grounds that “[t]he BFA members * * * knew at an early

stage in the proceedings that their rights could be adversely

affected” (720 F.2d at 1516; J.A. 154) and that the grant

of intervention “would plainly have prejudiced the existing

parties, since it would have nullified these negotiations [for

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

discriminatory practices to continue” (720 F.2d at 1517:

J.A. 155).

In the court of appeals, the United States contended that

the motions to intervene were untimely, prejudicial to the

parties, and improper under Fed. R. Civ. P. 24(a). See Brief

for the United States at 14-26, United States v. Jefferson

County, 720 F.2d 1511 (11th Cir. 1983).

the City and the Board. See Wilks v. Arrington, No.

CV-83-AR-2116-S (N.D. Ala.) (J.A. 130-134); Pet.

App. 7a. The complaint alleged that the City and

the Board had denied promotions to the white fire-

fighters in favor of certain less qualified black fire-

fighters, in violation of Title VII and the Equal Pro-

tection Clause; the complaint further sought to en-

join the City from making those promotions (J.A.

130-134; Pet. App. 7a). Several other city employees

who had been denied promotions also filed similar

complaints against the City and the Board.‘ In addi-

tion, the United States brought suit against the City

and the Board, alleging that the City’s practice of

promoting blacks over demonstrably better qualified

whites violated, inter alia, Title VII and the Equal

Protection Clause (J.A. 258-262; Pet. App. 8a).° In

4See Birmingham Ass’n of City Employees v. Arrington,

No. CV-82-P-1852-S (N.D. Ala.) (J.A. 91-100); Zannis V.

Arrington, No. CV-83-AR-2680-S (N.D. Ala.) ; Garner v. City

of Birmingham, No. CV-82-M-1461-S (N.D. Ala.) ; Howard

v. City of Birmingham Pub. Inspection Services, No. CV-83-

P-3010-S (N.D. Ala.).

5 The United States, as a signatory to the consent decrees,

was originally named as a defendant in two of the “reverse

discrimination” actions, as the district court called them. The

district court later granted the United States’ motion to inter-

vene as party plaintiff in the remaining cases. The court also

granted the United States’ motion to realign itself as plaintiff

in the two suits in which it had been named as a defendant.

J.A. 292, 329; Pet. App. 8a & n.10.

The Martin petitioners, as the plaintiffs in the original 1974

action and signatories to the consent decrees, moved both in

their individual capacities and as class representatives to in-

tervene as parties defendant in several suits. The district

court permitted the Martin petitioners to intervene only in

their individual capacities. See J.A. 46-47, 106-108, 169-171,

185-187; Pet. App. 9a & n.12.

April 1984, the district court consolidated the actions

under the caption “In re Birmingham Reverse Dis-

crimination Employment Litigation” (J.A. 218-219;

Pet. App. 9a).

After a trial in December 1985 concerning only

the promotion of blacks in the City’s Fire and Engi-

neering Departments, the district court granted the

Board’s motion to dismiss (Pet. App. lla, 27a-66a).

The court concluded that “[the] plaintiffs cannot

collaterally attack the [consent] Decree’s validity”

(id. at 61a), and focused its attention on the City’s

compliance with paragraph 2 of the consent decree

(see page 3, supra). See J.A. 237-238, 250-251, 280-

288. The court further held that the Wilks respond-

ents and the United States were bound by the consent

decrees and concluded that there had been no show-

ing that the City’s promotion practices violated para-

graph 2 (Pet. App. 10a-11la, 60a-64a).

5. On appeals by the Wilks respondents, who by

then included one white employee of the City’s Engi-

neering Department as well as the firefighters, and

the United States, a divided panel of the court of ap-

peals reversed and remanded for trial the Wilks re-

spondents’ claims under Title VII and the Equal Pro-

tection Clause." The court held that “[b]ecause * * *

*The court of appeals instructed the district court (Pet.

App. 19a), on remand, “to evaluate the defendants’ justifica-

tion for the challenged promotions under the standards articu-

lated in” Johnson V. Transportation Agency, No. 85-1129 (Mar.

25, 1987). The court further instructed the district court to

review the consent decrees with the “heightened scrutiny”

(Pet. App. 20a) required by Johnson. See Johnson v. Trans-

portation Agency, slip op. 19-20 (inquiry whether affirmative

[the Wilks respondents] were neither parties nor

privies to the consent decrees, * * * their independent

claims of unlawful discrimination are not precluded”

(Pet. App. 12a-13a). The court explicitly rejected

the “doctrine of ‘impermissible collateral attack’ ”

(id. at 13a) espoused by other courts of appeals to

“immuniz[e] parties to a consent decree from

charges of discrimination by nonparties, provided the

alleged discriminatory acts were taken pursuant to

the consent decree” (ibid.). See, e.g., Dennison v.

City of Los Angeles Dep’t of Water & Power, 658

F.2d 694 (9th Cir. 1981). The court stated that

“(t]he policy of encouraging voluntary affirmative

action plans,” a rationale for the doctrine against

collateral attacks, “must yield to the policy against

requiring third parties to submit to bargains in

which their interests were either ignored or sacri-

ficed” (Pet. App. 14a). The court recognized that the

Wilks respondents’ “Title VII claims did not accrue

until after the decrees became effective and the chal-

lenged promotions were made” and that the Wilks

respondents did not have “an identity of interest with

a party to the consent decrees such that they should

action plan “unnecessarily trammeled” rights of nonminority

employees).

The court of appeals also affirmed the district court’s dis-

missal of the United States’ claims, holding that “the United

States is estopped from collaterally attacking the consent

decrees because it is a party to them” (Pet. App. 20a), with-

out discussing the propriety of the United States asserting

the right of others to challenge the decrees. Despite contrary

allegations (see, ¢g., 87-1614 Br. 10), the United States

recognizes that the consent decrees require it to defend their

validity, and has not sought review of that holding.

be treated as parties for preclusion purposes” (id. at

15a)."

SUMMARY OF ARGUMENT

The court of appeals correctly held that the col-

lateral attack doctrine may not preclude individuals,

such as the Wilks respondents, from challenging em-

ployment-related actions taken under Title VII con-

sent decrees to which they were not a party. As a

threshold matter, that issue was presented to the

court of appeals—and is properly presented to this

Court—because it is at least unclear that the district

court in fact ruled on the merits of respondents’ chal-

lenge to the consent decrees. The district court was

explicit in holding that respondents were barred un-

der the collateral attack doctrine from challenging the

terms of the consent decrees, and its limited refer-

ences to the propriety of various aspects of the de-

crees do not clearly indicate that it proceeded—un-

necessarily given its other ruling—to decide the mer-

its of respondents’ challenge.

It is a fundamental principle of due process that a

judgment may not be held binding on a litigant who

was neither party nor privy to the litigation in which

that judgment was entered. While certain carefully

drawn exceptions to this rule against nonparty pre-

* Judge Anderson dissented, stating that “the appropriate

resolution of this case would distinguish between the indi-

vidual plaintiffs’ claim for back pay and their claim for pro-

spective relief” (Pet. App. 22a). Judge Anderson contended

that the City should not be liable for back pay (id. at 22a-24a).

He agreed substantially with the majority, however, that the

“plaintiffs are not bound by the consent decree and should be

free on remand to challenge the consent decree prospectively

and test its validity” (id. at 24a (emphasis added) ).

clusion exist, none is applicable here. In particular,

no certified class in the original lawsuit adequately

represented the interests of the Wilks respondents,

nor did those respondents exercise control over the

conduct of any party in that litigation. Thus, the

consent decree that was entered represented neither

an agreement nor an adjudication to which respond-

ents could fairly be bound.

The collateral attack doctrine is also inconsistent

with the approach to intervention and joinder estab-

lished by the Federal Rules of Civil Procedure. The

drafters of those rules determined that the concern

for finality of judgments would be better served by

mandatory joinder than by mandatory intervention

procedures. Accordingly, in Rule 19, they placed the

burden on the courts and the existing parties, not on

the nonparties, to ensure that the risk of double, mul-

tiple, or otherwise inconsistent judgments is mini-

mized.

A contrary reading of Rule 19 cannot be justified

on the basis of particular difficulties alleged to ensue

from application of the rule’s clear meaning. Nei-

ther the specter of multi-party litigation nor asserted

problems in pursuing defendant class actions are per-

suasive arguments for placing on nonparties the bur-

den to join or be bound anyway, contrary to the clear

intention of the drafters of the Federal Rules. Nor,

especially in view of existing provisions for transfer

and consolidation of lawsuits, and the principles of

stare decisis and comity, can the danger of incon-

sistent or contradictory proceedings justify the rule

petitioners assert.

Finally, this Court has recognized that the policy

favoring settlement of Title VII suits cannot be used

to justify the abrogation of nonparties’ legal rights.

Allowing third persons to challenge consent decrees

will not stop parties from entering into mutually

advantageous settlements and, in any event, true

voluntary compliance with Title VII requires either

that all interested persons consent to any settlement

agreement or that the agreement negotiated be able

to withstand their third-party challenge.

ARGUMENT

INDIVIDUALS ARE ENTITLED TO CHALLENGE

EMPLOYMENT-RELATED ACTIONS TAKEN UNDER

CONSENT DECREES TO WHICH THEY WERE NOT

A PARTY

The court of appeals correctly held that the colla-

teral attack doctrine may not preclude individuals,

such as the Wilks respondents, from challenging em-

ployment-related actions taken under consent decrees

entered in the Jefferson County litigation, and prop-

erly remanded the case for consideration of the merits

of respondents’ challenge.

A. This Case Properly Presents The Question Whether

Individuals Who Are Not A Party To A Consent Decree

May Challenge It In Subsequent Litigution

Petitioners claim (87-1614 Br. 34-41; 87-1639 Br.

17-18; 87-1668 Br. 35-40) that the court of appeals

erred in remanding the case because the district

court did, in fact, fully adjudicate the Wilks respond-

ents’ challenge under Title VII and the Equal Pro-

tection Clause. That contention distorts the record.

The district court concluded that the Wilks respond-

ents “cannot collaterally attack the Decree’s validity,”

and stated that “[t]he only avenue of attack open to

the private plaintiffs is to show that challenged ac-

tion was not taken pursuant to the Decree” (Pet.

App. 61a-62a, 106a). The district court also found

the fact that an action was taken pursuant to a con-

sent decree to be “proof that it was not taken with

the requisite discriminatory intent” (id. at 62a,

107a). Thus the district court plainly viewed re-

spondents as barred from challenging the provisions

of the consent decree or any actions taken under its

direction. The fact that it also made passing refer-

ences to its continuing belief in the correctness of the

decree (id. at 39a-40a, 62a, 84a-85a, 106a) cannot,

in this context, be viewed with assurance as a resolu-

tion of the merits of the claims. Thus, the court of

appeals correctly proceeded on the premise that the

district court’s application of the collateral attack

doctrine was dispositive.

B. The Collateral Attack Doctrine Is Inconsistent With

Notions Of Procedural Fairness, Which Require That

A Person Be Bound Only Upon His Own Agreement

Or After Receiving His Day In Court

This Court has long stated that “[i]t is a violation

of due process for a judgment to be [held] binding

on a litigant who was not a party or a privy” to the

litigation in which the judgment was entered (Park-

lane Hosiery Co. v. Shore, 439 U.S. 322, 327 n.7

(1979)). See, e.g.,. Blonder-Tongue Laboratories,

Inc. v. University Found., 402 U.S. 313, 328-329

(1971); Zenith Radio Corp. v. Hazeltine Research,

Inc., 395 U.S. 100, 110 (1969); Hansberry v. Lee,

311 U.S. 32, 40-42 (1940). As Chief Justice Rehn-

quist has noted, “[t]his rule can be traced to an

opinion of Chief Justice Marshall in Davis v. Wood,

1 Wheat. 6, 8-9 (1816),” and “is part of our ‘deep-

rooted historic tradition that everyone should have his

own day in court.’” Ashley v. City of Jackson, 464

U.S. 900, 902 (1983) (Rehnquist, J., joined by Bren-

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

(quoting 18 C. Wright, A. Miller & E. Cooper, Fed-

eral Practice and Procedure § 4449, at 417 (1st ed.

1981)). This “deep-rooted historic tradition,’ which

is embodied in both the Due Process Clause and the

various rules that Congress has enacted to govern

the administration of the federal courts, recognizes

that just and accurate decisionmaking is more likely

to result when courts allow persons to present their

own cases, at the time and place of their own choos-

ing. See Parklane Hosiery Co. v. Shore, 439 U.S. at

327 n.7; Blonder-Tongue Laboratories, Inc. v. Uni-

versity Found., 402 U.S. at 328-329; see generally

15 C. Wright, A. Miller & E. Cooper, Federal Prac-

tice and Procedure § 3841, at 200-202 (lst ed.

1976); 18 C. Wright, A. Miller & E. Cooper, Federal

Practice and Procedure § 4449, at 415-419 (1st ed.

1981) ; id. § 4452, at 446-453.

To be sure, producing just and accurate judicial

decisionmaking is not the only legitimate concern of

our legal system. Finality, efficiency, and consistency

of decision are also substantial concerns. Accord-

ingly, procedural devices exist for bringing nonpar-

ties into litigation and, in appropriate circumstances,

a person may be joined in and thus become bound by

litigation in which he would prefer not to participate.

See Fed. R. Civ. P. 19.

Indeed, a person may be bound by litigation to

which he is not a party where there are sufficient as-

surances that his interests are adequately represented

in that litigation by a certified class (see Hansberry

v. Lee, 311 U.S. at 41-42; Fed. R. Civ. P. 23), where

he has sufficient control over the conduct of one of

the parties to that litigation (see Montana v. United

States, 440 U.S. 147, 154-155 (1979); 18 C. Wright,

A. Miller & E. Cooper, supra, § 4451, at 427), or

where there is a special remedial scheme—as, for ex-

ample, exists in bankruptcy, reorganization, environ-

mental* and probate statutes—that expressly fore-

closes successive litigation by nonparticipants (see 18

C. Wright, A. Miller & E. Cooper, supra, § 4452, at

451, § 4458, at 520-521; see also Chicago, RI. & P.

Ry. v. Schendel, 270 U.S. 611, 618-620 (1926) ).

Despite petitioners’ assertions, none of the excep-

tions to the general rule against preclusion of non-

paris applies in this case.° Here, the Wilks respond-

§ See, e.g., the Clean Air Act, 42 U.S.C. 7604 (b) (1) (B) ; the

Clean Water Act, 33 U.S.C. 1365(b) (1) (B); and the Re-

source Conservation and Recovery Act, 42 U.S.C. (Supp. IV)

6972 (b) (1) (B).

® Nor do petitioners’ references to Penn-Central Merger &

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

Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102

(1968), offer support for barring litigation by individuals

who were not consulted and never agreed to the terms of a

consent decree. The Penn-Central case involved the review of

ICC merger and inclusion orders that were part of a vast

reorganization of rail transportation implementing the con-

gressional policy favoring consolidation of the nation’s rail-

roads into a limited number of systems. In that case, parties

filed actions in a number of district courts seeking to challenge

the orders of the Interstate Commerce Commission approving

the merger of 36 rail carriers into the Penn-Central system

and directing that thrée smaller railroads be inciuded in the

Norfolk & Western system. Courts other than the three-judge

District Court for the Southern District of New York stayed

those actions in order to permit orderly disposition of the

issues in the New York litigation. 389 U.S. at 496-497. The

Borough of Moosic, Pennsylvania, a plaintiff in an action

before the Middle District of Pennsylvania, petitioned this

Court for a writ of mandamus or certiorari seeking to over-

turn the stay order (id. at 503). That petition was consoli-

dated with a number of appeals from the three-judge panel’s

order approving the merger and the inclusion of the three pro-

tected rail lines into the Norfolk & Western system.

This Court affirmed the district court’s order approving the

merger and inclusion (389 U.S. at 498-502). Turning to the

ents filed a lawsuit separate and apart from the Jef-

ferson County litigation. The parties in the initial

Borough’s petition for mandamus or certiorari, the Court held

that the Pennsylvania district court’s order dissolving its stay

had rendered that petition moot (id. at 503). The Court also

concluded that the Borough and two other parties, both of

whom had originally joined in the New York litigation but had

abandoned those efforts by intervening in the stayed Pennsy]l-

vania action, could not then seek to enjoin the merger and

inclusion orders in the latter forum because the “decision of

the New York court which, with certain exceptions, we have

affirmed, precludes further judicial review or adjudication of

the issues upon which it passes” (id. at 505-506). The Court

stated, however, that its holding applied only to the Pennsyl-

vania district court’s stay order and that “any claims for

specific relief, such as particularized objections which may

arise from specific proposals for consolidation or reduction of

facilities or services, are unaffected by [the Court’s] decision

* * *” (id. at 506). Thus, those parties who elected not

to participate in the primary litigation in the Southern Dis-

trict retained the right to challenge in court specific steps

taken pursuant to the consolidation believed to have detri-

mental effects upon them.

In Provident Tradesmens Bank & Trust Co. v. Patterson,

390 U.S. 102, 114 (1968), the Court was confronted with the

question whether a judgment against an insurance company

should be allowed to stand where the parties failed to join

the insured party whose policy was limited by a liability cap

and whose rights to future coverage under the policy would

thus be affected by the outcome of the present case. In uphold-

ing the judgment, the Court specifically declined to decide

whether an arguably indispensable party who “purposely by-

passed an adequate opportunity to intervene” should be bound

by the court’s decision made in his absence. However, the

Court did state that since the arguably indispensable party

was “never before the [district] court, he cannot be bound by

the judgment rendered,” i.e., the judgment would not be “res

judicata as to, or legally enforceable against, a nonparty.”

390 U.S. at 110 (footnote omitted); see also id. at 122

(“there can be no binding adjudication of a person’s rights in

litigation did not attempt to join the Wilks respond-

ents as parties to their litigation—and did not seek

their approval of the consent decree—despite their

knowing full well that the proposed settlement would

adversely affect such nonparties’ interests. And there

has been no showing that any certified class in the

primary lawsuit adequately represented the Wilks

respondents’ interests,” or that the Wilks respondents

had control over the conduct of any party in the Jef-

ferson County litigation. On the contrary, the court

of appeals explicitly found that (Pet. App. 16a)

[g]iven the disparate interests of the City and

the [Wilks respondents], it is clear that the City

could not have served as an effective surrogate

for the [respondents’] interests when it nego-

tiated the plan incorporated into the consent

decrees.

Thus, under time-honored rules of due process and

civil procedure, the court of appeals correctly held

the absence of that person” (citing Mallow vy. Hinde, 25 U.S.

(12 Wheat.) 193 (1827)). Accordingly, the Court observed

that the absent party “may still claim that as a nonparty he

is not estopped by that judgment from relitigating the is-

sue” (390 U.S. at 114). In other words, contrary to peti-

tioners’ suggest’ons, Patterson does not at all signal the

Court’s retreat from the principle that judgments are bind-

ing only upon those party or privy to the litigation.

the union to which the Wilks respondents belong, appeared

at the fairness hearing and presented objections to the pro-

posed consent decree. Assuming that the BFA in fact repre-

sented the Wilks respondents’ interests and voiced their ob-

jections, there is no suggestion that its participation

amounted to an agreement to the terms of the consent decree,

such as would foreclose further litigation of the issues

presented. Firefighters v. Cleveland, 478 U.S. 501, 528-530

(1986); see also Firefighters v. Stotts, 467 U.S. 561, 588

n.3 (1984) (O’Connor, J., concurring).

that the Wilks respondents may proceed with their

suit." See Firefighters v. Cleveland, 478 U.S. 501,

528-530 (1986); W.R. Grace & Co. v. Rubber Work-

ers, 461 U.S. 757, 770-772 (1983); see also United

States v. Mendoza-Lopez, No. 85-2067 (May 26,

1987), slip op. 9-13.

C. The Collateral Attack Doctrine Is Inconsistent With

The Rules Of Intervention And Joinder Established By

the Federal Rules of Civil Procedure

Petitioners contend that the court below erred in

refusing to follow the line of cases holding that col-

lateral attacks on consent decrees in Title VII actions

are not permissible, especially where the Wilks re-

spondents were aware of the underlying lawsuit and

the proposed consent decrees, and had an opportunity

to intervene in the proceedings.” Petitioners argue

1 Title VII does authorize the Attorney General and the

Equal Employment Opportunity Commission to initiate law-

suits on behalf of aggrieved individuals and, in such cases,

gives the aggrieved individuals an absolute right to interven-

tion. See 42 U.S.C. 2000e-5(f) (1). Some courts have there-

fore held that the statutory scheme precludes those aggrieved

individuals from initiating successive litigation once the gov-

ernment’s litigation has concluded. See, e.g., Adams v. Proc-

tor & Gamble Mfg., 697 F.2d 582 (4th Cir. 1983) (en banc),

cert. denied, 465 U.S. 1041 (1984); Jones v. Bell Helicopter

Co., 614 F.2d 1389 (5th Cir. 1980). Whether those decisions

are correct or not, they make clear that Title VII contains no

provision authorizing a private litigant to initiate an action

on behalf of another individual and thereby preclude that in-

dividual from bringing an action on his own behalf at the

time and place of his own choosing (absent formal class cer-

tification procedures).

12 See, e.g., Devereaux v. Geary, 765 F.2d 268 (1st Cir.

1985), cert. denied, 478 U.S. 1021 (1986); Thaggard v. City

of Jackson, 687 F.2d 66 (5th Cir. 1982), cert. denied, 464 U.S.

900 (1983); Stotts v. Memphis Fire Dep’t, 679 F.2d 541 (6th

that allowing challenges to consent decrees entered

in Title VII litigation will prevent the attainment of

final judgments and raise the specter of inconsistent

or contradictory proceedings. They urge that the ap-

propriate resolution of competing concerns is to re-

quire that persons with interests affected by ongoing

Title VII litigation, such as the Wilks respondents,

intervene in those lawsuits or face preclusion by the

judgments entered therein.

Such a resolution, however, is incompatible with

the Federal Rules of Civil Procedure. The drafters

of those Rules expressly faced the concerns about fi-

nality and the desire of nonparties to relitigate issues

previously decided. They recognized that rules of in-

tervention have always been drawn in permissive

terms and, therefore, that nonparties can refrain from

intervention in litigation that affects them." Rather

Cir. 1982), rev’d on other grounds sub nom. Firefighters

Local Union No. 1784 V. Stotts, 467 U.S. 561 (1984); Denni-

son V. City of Los Angeles Dep’t of Water & Power, 658 F.2d

694 (9th Cir. 1981); Goins v. Bethlehem Steel Corp., 657 F.2d

62 (4th Cir. 1981), cert. denied, 455 U.S. 940 (1982); Society

Hill Civie Ass’n V. Harris, 632 F.2d 1045 (3d Cir. 1980).

18 See Fed. R. Civ. P. 24(a) (intervention as of right)

(“{u]pon timely application anyone shall be permitted to in-

tervene”’); Fed. R. Civ. P. 24(b) (permissive intervention)

(“[u]pon timely application anyone may be permitted to in-

tervene”). See also Chase Nat’l Bank v. City of Norwalk, 291

U.S. 431, 441 (1934) (“The law does not impose upon any per-

son absolutely entitled to a hearing the burden of voluntary

intervention in a suit to which he is a stranger. * * * Unless

duly summoned to appear in a legal proceeding, a person not

a privy may rest assured that a judgment recovered therein

will not affect his legal rights.”); accord, Sea-Land Services,

Inc. V. Gaudet, 414 U.S. 573, 593 (1974); Zenith Radio Corp.

v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969); Gratiot

County State Bank v. Johnson, 249 U.S. 246, 249-250 (1919).

than redraft the rules of intervention in mandatory

terms, however, they determined that the concern for

finality of judgments would be “better [served] by

mandatory joinder procedures” (18 C. Wright, A.

Miller & E. Cooper, supra, § 4453, at 453). Accord-

ingly, they added Rule 19 to the Federal Rules of

Civil Procedure. See Advisory Committee’s Note to

Fed. R. Civ. P. 19.

Rule 19 has two parts. Part (a) requires the ex-

isting parties and the court to join those persons

whose presence is necessary and desirable for a just

adjudication."* Part (b) requires the existing parties

and the court to work out a fair and just solution

when joinder is not possible—so that neither the ab-

sent person nor those already party to the litigation

will be prejudiced by, for example, the issuance of a

decree that impairs their rights or exposes them to

double, multiple, or otherwise inconsistent obliga-

14 Rule 19(a) (emphases added) provides that

[a] person who is subject to service of process and whose

joinder will not deprive the court of jurisdiction * * *

shall be joined as a party in the action if (1) in the per-

son’s absence complete relief cannot be accorded among

those already parties, or (2) the person claims an inter-

est relating to the subject of the action and is so situated

that the disposition of the action in the person’s absence

may (i) as a practical matter impair or impede the per-

son’s ability to protect that interest or (ii) leave any of

the persons already parties subject to a substantial risk

of incurring double, multiple, or otherwise inconsistent

obligations by reason of the claimed interest. If the per-

son has not been so joined, the court shall order that the

person be made a party. If the person should join as a

plaintiff but refuses to do so, the person may be made a

defendant, or, in a proper case, an involuntary plaintiff.

If the joined party objects to venue and joinder of that

party would render the venue of the action improper,

that party shall be dismissed from the action.

tions.” Together, parts (a) and (b) of Rule 19 place

the responsibility (and means) for obtaining a final

judgment with the courts and the existing parties,

and not with the nonparties (such as the Wilks re-

spondents) to the litigation. Accord, Conswmers

Union of the United States, Inc. v. Consumer Prod-

ucts Safety Comm’n, 590 F.2d 1209, 1223 (D.C. Cir.

1978), rev’d on other grounds sub nom. GTE Syl-

vania, Inc. v. Consumers of the United States, Inc.,

445 U.S. 375 (1980). The judicially developed col-

lateral attack doctrine cavalierly ignores this alloca-

tion of responsibility and is thus irreconcilable with

the procedural scheme envisioned by the drafters of

Rule 19 and the Congress that approved that rule’s

adoption."®

' Rule 19(b) provides that

[iJf a person * * * cannot be made a party, the court

shall determine whether in equity and good conscience

the action should proceed among the parties before it, or

should be dismissed, the absent person being thus re-

garded as indispensable. The factors to be considered

by the court include: first, to what extent a judgment

rendered in the person’s absence might be prejudicial to

the person or to those already parties; second, the extent

to which, by protective provisions in the judgment, by

the shaping of relief, or other measures, the prejudice

can be lessened or avoided; third, whether a judgment

rendered in the person’s absence will be adequate; fourth,

whether the plaintiff will have an adequate remedy if the

action is dismissed for nonjoinder.

1® As Professor Laycock has observed, Consent Decrees

Without Consent: The Rights of Nonconsenting Third Par-

ties, 1987 U. Chi. Legal F. 103, 142 (footnotes omitted) :

A best knows what relief he is seeking, and if that

relief will directly interfere with C’s arguable claim of

right, A is seeking relief against C just as much as he

is seeking relief against B. A will typically know about

Petitioners offer no sound basis for ignoring the

clear meaning of Rule 19. They raise (87-1668 Br.

32-34) the specter of unmanageable lawsuits if join-

der under Rule 19 is required. However, even under

petitioners’ proposed “intervene or be bound” rule,

that possibility exists, see United Airlines v. McDon-

ald, 482 U.S. 385, 394 n.15 (1977); in any event,

multi-party lawsuits are one of the inherent costs of

insulating judgments or consent decrees from third-

party challenges. A Title VII defendant who wishes

to insulate himself against future liability to third

parties by virtue of the terms of a present settle-

ment can only do so by joining those parties in the

settlement.

Petitioners also overstate the difficulties of defend-

ant class actions under Rule 23 (87-1668 Br. 33).

Numerous defendant class actions have ben prose-

cuted, and we see no reason to doubt that district

courts can be entrusted with “the responsibility and

discretion to create and certify defendant class ac-

tions that will not become constitutional or admin-

istrative monsters.” Henson v. East Lincoln Town-

ship, 814 F.2d 410, 420 (7th Cir. 1987) (Campbell,

J., concurring in part and dissenting in part), cert.

granted, No. 87-5461 (Nov. 2, 1987); see generally

Note, Defendant Class Actions, 91 Harv. L. Rev. 630,

639-647 (1978). In the typical case, such as here,

nonminority employees whose rights would likely be

affected by the resolution of the minority employees’

C at least as soon as C knows about A’s lawsuit and the

requested relief—usually long before. It is A’s respon-

sibility to join C. If A does not join him, Rule 19 re-

quires the court to order that he be joined. C has no

similar duty to intervene. Rule 19 imposes a duty; Rule

24 creates only an opportunity. The plaintiff and the

court should not be allowed to ignore their responsibili-

ties under Rule 19, and then oppose intervention or sub-

sequent litigation on grounds of timeliness.

claims could be joined as a class under Rule 23(b)

(1)(A), which applies “when practical necessity

forces the opposing party [i.e., the employer] to act

in the same manner toward the individual class mem-

bers and thereby makes inconsistent adjudications in

separate actions unworkable or intolerable.” 7A C.

Wright, A. Miller & M. Kane, Federal Practice and

Procedure § 1773, at 434 (2d ed. 1986).’’ Moreover,

such class members could not easily avoid the binding

effect of the judgment because the “opt out” provision

would be unavailable. See Reynolds v. National Foot-

ball League, 584 F.2d 280, 284 (8th Cir. 1978)

(where class acticius maintainable under Rule 23

(b)(1) or Rule 23(b) (3), former controls for pur-

poses of determining binding effect of judgment in

order to further that provision’s purpose of eliminat-

ing risk of inconsistent adjudications); Robertson v.

National Basketball Ass’n, 556 F.2d 682, 685 (2d

Cir. 1977) (same); see also 7A C. Wright, A. Miller,

& M. Kane, supra, § 1772, at 425-426."*

Nor can the collateral attack doctrine be justified

(see, e.g., 87-1614 Br. 22-30; 87-1639 Br. 14-17; 87-

1668 Br. 18-20) as necessary to avoid the danger of

inconsistent or contradictory proceedings. That ob-

jective is one of the principal purposes of Rule 19,

whose provisions are essentially circumvented by a

ban on collateral cha. .zes. See Fed. R. Civ. P.

19(a) (joinder required where person’s absence

17 The class action the court condemned in Henson v. East

Lincoln Township, 814 F.2d 410 (7th Cir. 1987), cert.

granted, No. 87-5461 (Nov. 2, 1987), was proposed under

Rule 23(b) (2), which, as stated above, would not likely be

used in the context of cases such as this.

4% Under Rule 23(c), the “opt out” alternative is not avail-

able to Rule 23(b) (1) class members.

would “leave any of the persons already parties sub-

ject to a substantial risk of incurring double, multi-

ple, or otherwise inconsistent obligations’’); see also

McCoid, A Single Package for Multiparty Disputes,

28 Stan. L. Rev. 707, 723-724 (1976)."° Moreover,

transfer and consolidation procedures are available

to prevent judicial proceedings from multiplying un-

controllably or undesirably and to enable a single

judge to control litigation that is intiated by differ-

ent parties in different places. See 28 U.S.C.

1404(a); Fed. R. Civ. P. 42; Bolden v. Pennsylvania

State Police, 578 F.2d 912 (3d Cir. 1978); 15 C.

12 Contrary to the Arrington petitioners’ claim (87-1668

Br. 31), National Licorice Co. v. NLRB, 309 U.S. 350 (1940),

does not suggest that Rule 19 is inapplicable to “public

rights” litigation. There, the Court stated that the Board’s

proceeding, which was “narrowly restricted to the protec-

tion and enforcement of [the] public rights [reflected in the

National Labor Relations Act],” was not a proper forum for

adjudicating the private rights of individual employees (id.

at 363). The Court held, therefore, that the Board had the

power, “acting in its public capacity to give effect to the de-

clared public policy of the Act” (id. at 362), to order the em-

ployer, without first joining the employees, to cease practices

that violate that policy.

In so holding, the Court noted, as we have argued here, that

the Board lacked the power to issue a binding ruling on the

contract rights of the individual employees who were not

party to the Board’s proceeding. See 309 U.S. at 362 (“It is

elementary that it is not within the power of any tribunal to

make a binding adjudication of the rights in personam of

parties not brought before it by due process of law.”). The

Court thus made clear that the Board’s order did ‘“‘not fore-

close the employees from taking any action to secure an ad-

judication upon the contracts, nor prejudge their rights in

the event of such adjudication” (id. at 365).

Wright, A. Miller & E. Cooper, supra, § 3841, at 200-

202; id. § 3485, at 287.

Indeed, even where joinder, transfer, and consoli-

dation devices will not together ensure that only a

single binding judgment can result concerning any

particular matter, principles of stare decisis and

comity will inform the second court that acquires

jurisdiction over that matter and thus minimize the

possibility of inconsistent or contradictory judgments.

See Colorado River Water Conservation Dist. v.

United States, 424 U.S. 800, 817 (1976); Kerotest

Mfg. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 181-

182 (1952). And, in all events, the concern for cor-

rectness of judicial decisionmaking is as important

as the concern for consistency among judgments and,

accordingly, some inconsistent or contradictory judg-

ments must be accepted.”

In trying to eliminate (rather than to minimize)

the possibility of such inconsistent judgments, the

*0See also Kramer, Consent Decrees and the Rights of

Third Parties, 87 Mich. L. Rev. (1988) (forthcoming)

(criticizing collateral attack doctrine as illegitimate effort to

eliminate nonparties’ substantive rights and advocating use

of transfer and consolidation procedures under 28 U.S.C.

1404(a) and 1631 as readily available alternatives).

“1 Where such inconsistent or contradictory judgments

arise, well-established procedures are available to ensure that

the person subject to those judgments does not place himself

in contempt of either court’s judgment. The person may, of

course, seek reversal of the second judgment on appeal. And,

if unsuccessful on appeal, the person will have an appro-

priate ground upon which to seek relief from the court enter-

ing the first judgment. See Fed. R. Civ. P. 60. Thus, the

Martin petitioners’ concern (87-1614 Br. 26-27) is overstated

and is also dispelled by the history of this litigation. See

United States v. Jefferson County, 720 F.2d 1511, 1517-1519

(11th Cir. 1983).

collateral attack doctrine ignores our “clear experi-

ence with the general fallability of litigation and with

the specific distortions of judgment that arise from

the very identity of the parties” (18 C. Wright, A.

Miller & E. Cooper, supra, § 4449, at 417). Ironi-

cally, that experience has been most evident in cases

involving Title VII consent decrees, which themselves

amount to “little more than a contract between the

parties, formalized by the signature of a judge”

(Ashley v. City of Jackson, 464 U.S. at 902 (Rehn-

quist, J., dissenting from denial of certiorari); see

also Firefighters v. Cleveland, 478 U.S. at 517-524),

and which involve strong incentives and opportunity

to make innocent and unrepresented third-persons

pay the price of sins that were not their own and

from which they may not personally have benefitted.”

Accord, W.R. Grace & Co. v. Rubber Workers, 461

U.S. 757, 767-770, 771-772 (1983); Ford Motor Co.

v. EEOC, 458 U.S. 219, 239-240 (1983) .”

22 Examples of this phenomenon are not limited to Title VII

litigation. See, e.g., Wilder v. Bernstein, 645 F. Supp. 1292

(S.D.N.Y. 1986) (settlement of suit in which New York City

agreed not to support with public funds private charitable

organizations that gave preference to Catholic and Jewish

children; consent decrees entered over objections of the chari-

ties at a fairness hearing), aff’d, 848 F.2d 1338 (2d Cir.

1988) ; Harrisburg Chapter of the American Civil Liberties

Union v. Scanlon, 500 Pa. 549, 458 A.2d 1352 (1983) (named

parties settled lawsuit by agreeing that student groups could

not conduct extracurricular prayer meetings on high school

property; no affected student group participated in the liti-

gation). See also Epstein, Wilder v. Bernstein: Squeeze

Play By Consent Decree, 1987 U. Chi. Legal F. 209.

28 See also Firefighters v. Stotts, 467 U.S. 561, 589 n.4

(1984) (O’Connor, J., concurring); Franks v. Bowman

Transportation Co., 424 U.S. 747, 787-799 (Powell, J., con-

curring in part and dissenting in part) ; Johnson v. Transpor-

In arguing for a rule of “intervene or be bound,”

petitioners and amici paint a rosy picture regarding

the availability of intervention as an avenue for re-

lief for nonparties. See, e.g., Brief of the Equal Em-

ployment Advisory Council as Amicus Curiae 12

(“Intervention is liberally available in Title VII pro-

ceedings.”). In fact, strict rules concerning timeli-

ness of intervention have been applied by several

courts of appeals, with the result that application of

the collateral attack doctrine may leave many inter-

ested third-persons without any opportunity to be

heard at all. For this very reason, the collateral at-

tack doctrine has been criticized by members of this

Court, various courts of appeals, and numerous com-

mentators.™

Several courts of appeals have held that the timeli-

ness of intervention must be measured from the date

upon which a complaint or proposed consent decree

is filed, rather than from the date on which the

would-be intervenors’ cause-of-action allegedly ac-

crued, whether their interests have been adversely

affected at that earlier time or not. See, e.g., United

tation Agency, No. 85-1129 (Mar. 25, 1987), slip op. 19-21

(Scalia, J., dissenting); Firefighters v. Cleveland, 478 U.S. at

534-535 (White, J., dissenting).

*4 See Ashley v. City of Jackson, 464 U.S. at 901-902, 904

(Rehnquist, J., joined by Brennan, J., dissenting from the

denial of certiorari) ; Dunn v. Carey, 808 F.2d 555, 559-560

(7th Cir. 1986); Corey v. Jackson Police Dep’t, 755 F.2d

1207, 1210 (5th Cir. 1985); Cooper, The Collateral Attack

Doctrine and the Rules of Intervention: A Judicial Pincer

Movement on Due Process, 1987 U. Chi. Legal F. 155;

Kramer, Consent Decrees and the Rights of Third Parties,

87 Mich. L. Rev. (1988) (forthcoming); Laycock, Consent

Decrees Without Consent: The Rights of Nonconsenting

Third Parties, 1987 U. Chi. Legal F. 103.

States v. Yonkers Bd. of Educ., 801 F.2d 593, 594-

596 (2d Cir. 1986); Devereaux v. Geary, 765 F.2d

268, 271-275 (1st Cir. 1985), cert. denied, 478 U.S.

1021 (1986) ; Corley v. Jackson Police Dep’t, 755 F.2d

1207, 1209-1210 (5th Cir. 1985). Thus, it may well

be impossible in some circuits for third parties to

intervene and challenge a proposed consent decree.

On the one hand, before the consent decree is made

public, they may not be aware that it has been pro-

posed or they may not have yet suffered the concrete

injury on which they can properly base a motion for

intervention. See, e.g., Firebird Society, Inc. v. Board

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). And, on the other hand, if they

delay their attempt at intervention (until their inter-

est becomes concrete), they will quite likely be turned

away as having moved untimely to intervene.”

D. The Collateral Attack Doctrine Cannot Be Justified By

Reference To The Policy Favoring Voluntary Settle-

ments Under Title VII

The denial of due proces implicit in the collateral

attack doctrine cannot be justified by reference to

the policy of voluntary settlement of Title VII dis-

putes. To be sure, “Congress [has] expressed a

strong preference for encouraging voluntary settle-

25 Moreover, even where intervention is held timely, the

interested third-persons are typically allowed only to voice

their objections to the “reasonableness” of the decree. See,

e.g., Kirkland v. New York State Dep’t of Correctional Serv-

ices, 711 F.2d 1117, 1129 (2d Cir. 1983), cert. denied, 465

U.S. 1005 (1984). This limited right of allocution before

judgment is not the full and fair opportunity to be heard

that due process requires that a person ultimately receive—

as this Court has said. Firefighters v. Cleveland, 478 U.S.

at 529-530.

ment of employment discrimination claims” (Carson

v. American Brands, Inc., 450 U.S. 79, 88 n.14

(1981)), and this Court accordingly has required

that the resolution of interpretive questions concern-

ing Title VII take account of the policy favoring

voluntary settlement (see, e.g., Johnson v. Transpor-

tation Agency, No. 85-1129 (Mar. 25, 1987), slip op.

12 & n.8; Ford Motor Co. v. EEOC, 458 U.S. at 229;

Carson v. American Brands, Inc., 450 U.S. at 88

n.14). But the Court has also explicitly recognized

that the policy favoring settlement of Title VII dis-

putes cannot be used to justify the abrogation of non-

parties’ protected legal interests.

In Firefighters v. Cleveland, supra, the Court held

that, while the policy favoring voluntary settlement

of Title VII suits allows a court to approve race-

conscious consent decrees, that policy does not pre-

clude a union representing nonminority employees

from challenging such a decree on its merits. On the

one hand, the Court noted, “[i]t has never been sup-

posed that one party—whether an original party, a

party that was joined later, or an intervenor—could

preclude other parties from settling their own dis-

putes and thereby withdrawing from litigation. Thus,

while an intervenor is entitled to present evidence

and have its objections heard at the hearing on

whether to approve a consent decree, it does not have

power to block the decree merely by withholding its

consent” (478 U.S. at 52. 29). On the other hand,

the Court added, “parties who choose to resolve litiga-

tion through settlement may not dispose of the claims

of a third party, and a fortiori may not impose duties

or obligations on a third party, without that party’s

agreement. A court’s approval of a consent decree

between some of the parties therefore cannot dispose

of the valid claims of nonconsenting intervenors”

(id. at 529). Rather, the Court concluded, “if prop-

erly raised, these claims remain and may be litigated

by the [third-party]” (ibid.). Accord, id. at 530-531

(O’Connor, J., concurring); W.R. Grace Co. v. Rub-

ber Workers, 461 U.S. 757, 770-771 (1983) ; see also

Wygant v. Jackson Board of Education, 476 U.S.

267, 281 n.8 (1986) (plurality opinion) .*

It is a gross overstatement to suggest, as do peti-

tioners (see 87-1614 Br. 21-22; 87-1639 Br. 13-14;

87-1668 Br. 14-18), that settlement would lose its

26In W.R. Grace Co. v. Rubber Workers, 461 U.S. 757

(1983), where an employer entered into a conciliation agree-

ment with the EEOC that required it to disregard the senior-

ity provisions of its extant collective bargaining agreement,

the Court held that the policy favoring voluntary settlement

of Title VII suits did not provide sufficient justification for

overturning an arbitration award that required the employer

to pay damages to employees who would not have been laid-

off had the collective bargaining agreement’s seniority provi-

sions been followed. The Court noted that, “[a]lthough the

ability to abrogate unilaterally the provisions of a collective-

bargaining agreement might encourage an employer to con-

ciliate with the [EEOC], the employer’s added incentive to

conciliate would be paid for with the union’s contractual

rights” (as well as the rights of individual employees) (461

U.S. at 771; id. at 770). The Court further noted that “con-

ferring such power on the [EEOC] and an employer * * *

would be unlikely to further true conciliation between all

interested parties” (ibid. (emphasis added)), reasoning that,

“fa]lthough an innocent union might decide to join in Title

VII conciliation efforts in order to protect its contractual

position, neither the employer nor the [EEOC] would have

any incentive to make concessions to the union * * * [since

they] would know that they could agree without the union’s

consent and that their agreement would be enforced” (ibid.).

And, conversely, the Court added, “enforcing the award * * *

should encourage conciliation and true voluntary compliance

with federal employment discrimination law” because it

would require that all employees’ rights be respected in Title

VII settlement negotiations (ibid. (emphasis added) ).

utility if further litigation were permitted. To the

extent the parties are compromising their own claims

and thus sharing the cost of settlement among them-

selves, very littie reduction in settlement incentives

should occur. See W.R. Grace Co., 461 U.S. at 771-

772. The parties’ incentive to settle would be eroded

only to the extent that the settlement might give rise

to liability on their part to the Wilks respondents

(for the costs of the settlement, if any, that the Wilks

respondents have been improperly asked to bear).

Even then, it would appear that the diminution of in-

centive to settle between the existing parties would

be no greater than is appropriate in light of the eco-

nomic benefits that the settlement will have for them.

The policy in favor of voluntary compliance and set-

tlement under Title VII is promoted only where all

persons with an interest in a Title VII dispute are

party to a resulting consent decree or, in the absence

of such consensus, where any consent decree that re-

sults can withstand substantive challenge from third-

parties whose own Title VII rights are claimed to

have been abridged. Compliance with Title VII is not

encouraged when parties are allowed to ignore and,

indeed, abrogate the rights of those who are not

present.”

27 See also Firefighters vy. Stotts, 467 U.S. at 588 n.3

(O’Connor, J., concurring) (“if innocent employees are to be

required to make any sacrifices in the final consent decree,

they must be represented and have had full participation

rights in the negotiation process”; id. at 589 n.4 (“[t]he

policy favoring voluntary settlement does not, of course,

countenance unlawful discrimination against existing em-

ployees or applicants’’).

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WM. BRADFORD REYNOLDS

Assistant Attorney General

DONALD B. AYER

Deputy Solicitor General

ROGER CLEGG

Deputy Assistant Attorney General

MICHAEL R. LAZERWITZ

Assistant to the Solicitor General

DENNIS J. DIMSEY

Attorney

SEPTEMBER 1988

W U.S. GOVERNMENT PRINTING OFFICE; 1987 202037 60668

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