# Amicus Curiae Brief — Arrington v. Wilks

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0379%3A17

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 810

## Text

\m (Ts ZL
_NOS. 87-1614, 87-163? and §7-
IN THE SUPREME COURT OF THE UNITE

October Term, 1388

JOHN W. MARTIN, ET AL., Petition
We
ROBERT K. WILKS, ET AL., Respond

PERSONNEL BOARD OF JEFFERSON COU
ALABAMA, ET AL., Petitioners

Y «
ROBERT K. WILKS, ET AL., Respondents

RICHARD ARRINGTON, JR.,
ET AL., Petitioners
YW «
ROBERT K. WILKS, ET AL., Respondents

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF OF
ALABAMA, ARKANSAS, CALIFORNIA, CONNECTICUT,
FLORIDA, GEORGIA, IDAHO, INDIANA, IOWA, KANSAS,
KENTUCKY, LOUISIANA, MARYLAND, MASSACHUSETTS,
MINNESOTA, MISSOURI, MONTANA, NEBRASKA,
NEVADA, NEW HAMPSHIRE, NEW JERSEY, NEW YORK,
OHIO, OKLAHOMA, RHODE ISLAND AND PROVIDENCE
PLANTATIONS, SOUTH CAROLINA, TEXAS, VERMONT,
VIRGINIA, WEST VIRGINIA, WISCONSIN, WYOMING,
THE DISTRICT OF COLUMBIA, AND THE VIRGIN
ISLANDS, AS AMICI CURIAE IN SUPPORT
OF PETITIONERS

JAMES M. SHANNON
Attorney General
Commonwealth of Massachusetts

ALICE DANIEL

Deputy Attorney General
Counsel of Record

JANE S. SCHACTER

PETER SACKS

Assistant Attorneys General

One Ashburton Place

Boston, Massachusetts 02108

(617) 727-2200

(Additional Counsel on Inside Covers)

EGELMAN

SI
rney General of Alabama

2)

JOHN STEVEN CLARK
Attorney General of Arkansas

JOHN VAN de KAMP
Attorney General of California

JOSEPH I. LIEBERMAN
Attorney General of Connecticut

FREDERICK D. COOKE
Corporation Counsel of
the District of Columbia

ROBERT A. BUTTERWORTH
Attorney General of Florida

MICHAEL J. BOWERS
Attorney General of Georgia

JIM JONES
Attorney General of Idaho

LINLEY E. PEARSOi
Attorney General of Indiana

THOMAS J. MILLER
Attorney General of Iowa

ROBERT T. STEPHAN
Attorney General of Kansas

FREDERIC J. COWAN
Attorney General of Kentucky

WILLLIAM J. GUSTE, JR.
Attorney General of Louisiana

J. JOSEPH CURRAN, JR.
Attorney General of Maryland

HUBERT H. HUMPHREY, III
Attorney General of Minnesota

WILLIAM L. WEBSTER
Attorney General of Missouri

MIKE GREELY
Attorney General of Montana

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICI CURIAE
STATEMENT OF THE CASE
SUMMARY OF ARGUMENT
ARGUMENT

I. THOSE WITH NOTICE AND AN
OPPORTUNITY TO INTERVENE
IN PROCEEDINGS CULMINATING
IN A CONSENT DECREE SHOULD
NOT BE PERMITTED TO ATTACK
THAT DECREE IN A SUBSEQUENT
LAWSUIT c*) woe ef

A. Established Principles
of Preclusion Fully
Support A Rule Barring
Collateral Attacks By
Those Who Had Notice
and An _— to
Intervene , °

Be The Compelling
Interests Suppor-
ting Preclusion
Have Led to Many
Judicially-Created
Exceptions to
the Rule That Only
Parties May Be
Bound —

12

12

15

17

TABLE OF CONTENTS

(continued)

a4 This Court Should
Apply Penn Central

and Provident

Tradesman's Bank
to Bar Collateral

Attacks on Consent

Decrees

a.

Collateral
Attacks
Undermine
Finality

Collateral
Attacks
Undermine
Settlement
Incentives

Collateral
Attacks
Undermine
Compliance
With Court
Orders

Collateral
Attacks
Undermine
Fairness

Collateral
Attacks
Undermine
Comity

skte

Page

21

23

26

32

33

39

TABLE OF CONTENTS

(continued)

ai.

AN ALTERNATIVE RULE REQUIRING

Barring Collateral
Attacks By Those Who
Had Notice and Failed
to Intervene On a
Timely Basis Does Not
Violate Due Process ;

MANDATORY JOINDER IS WHOLLY
INAPPROPRIATE

A.

Mandatory Mass Joinder
of Potentially Affected
Persons Will Create
Serious Practical
Problems That Are
Avoided By ee
Intervention

Neither Joinder of a
Defendant Class, Nor
Joinder of Unions,

Will Resolve The
Serious Practical
Problems with Mandatory
Joinder Pe - The day after the hearing,
the Firefighters Association moved to
intervene in the case. J.A. 774-776.

In August 1981, the district

court approved the decree and denied the
motion as untimely. Pet. App.
236a-249a. The Eleventh Circuit
subsequently affirmed. United States v.
Jefferson County, 720 F.2d 1511, 1516-19
(llth Cir 1983); J.A. 149-161.

Beginning in April 1982, the City
proposed to promote certain black emp-
loyees pursuant to the consent decrees.
J.A. 40-41. Competing white applicants,
again represented by Mr. Fitzpatrick,
commenced five “reverse discrimination”
cases against the City and Personnel
Board attacking the validity of the con-
sent decrees and seeking to enjoin the
promotions. Pet. App. 110a-l2la; J.A.
35-36; 38-39; 91-100; 130-134. Peti-
tioners John Martin, et al., who were
plaintiffs in the original Title VII

litigation, promptly intervened (over

Respondents‘ objection) in order to
defend the consent decrees, and all
defendants sought to dismiss the new
suits as impermissible collateral
attacks on the consent decrees. J.A.
43-47; 52; 101-103; 106-108; 165-171;
175-178; 185-187.

After a five day trial in December
of 1985, the district court concluded
that the reverse discrimination plain-
tiffs could not collaterally attack the
consent decrees, and that in any case
the decrees were lawful, and thus that
the challenged promotions were not un-
lawfully discriminatory. J.A. 26-29;
Pet. App. 67a-68a; 106a-107a. On ap-
peal, the Eleventh Circuit concluded
that plaintiffs were not bound by the

consent decrees, reasoning that only

parties to prior litigation may be bound
by orders issued in that litigation. In
re Birmingham Reverse Discrimination
Employment Litigation, 833 F.2d 1492,
1498 (Lith Cie. 1987); Pet. App.
12a-20a. Apparently overlooking the di-
strict court's disposition of the case
on the merits, the Eleventh Circuit re-
manded the case for trial. This Court
granted petitions for writs of cert-
iorari on June 20, 1988.
SUMMARY OF ARGUMENT

Amici urge this Court to hold that
those who have notice and an opportunity
to intervene on a timely basis in pro-
ceedings culminating in a consent decree
may not collaterally attack that decree
in a subsequent lawsuit. This Court has
twice embraced the principle that per-

sons who bypass an opportunity

to intervene may be subject to pre-
clusion, and the vast majority of lower
courts have barred collateral attacks on
consent decrees. Like other judi-
cially-created rules of preclusion --
including other exceptions to the gen-
eral rule that only parties to prior
litigation may be bound -- the rule
amici urge serves the compelling in-
terests underlying the doctrines of res
judicata and collateral estoppel.

The minority rule adopted by the
Eleventh Circuit, by contrast, seriously
undermines the interests protected by
rules of preclusion. As applied to pub-
lic employers, the Eleventh Circuit's
rule will impede and delay resolution of
divisive Title VII cases, will dis-
courage settlement and undermine the

utility of consent decrees, will

potentially force state agencies’ into
contempt of one of two inconsistent
court orders, will discourage interested
persons from intervening and instead en-
courage tactical maneuvering and waste-
ful relitigation, and will force courts
to second-guess orders issued by other
courts in derogation of settled policies
of comity. And, these kinds of problems
are likely to arise in contexts other
than Title VII if the Court adopts the
Eleventh Circuit's rule as its own.

In addition to promoting important
policies, a rule of preclusion that re-
quires interested parties with fair no-
tice of the proceedings to intervene
satisfies due process requirements,
which require notice and a meaningful
opportunity to be heard, not a hearing

in fact. Moreover, while amici believe

-10-

that the opportunity to intervene on a
timely basis is itself sufficient to
satisfy due process, in this case Res-
pondents were in fact heard in oppo-
Sition to the consent decree, through
their attorney, at a full fairness hear-
ing prior to adoption of the decree.
Finally, this Court should reject
any suggestion that involuntary mass
joinder of potentially affected persons,
rather than self-selected intervention,
is the appropriate means to ensure that
a decree has binding effect. Such a
rule would create enormous’ practical
problems, impose substantial financial
burdens on all concerned, spawn wasteful
litigation about the question of whom to
join, and erect formidable obstacles in

the path of plaintiffs claiming

-l|]-

discrimination, by forcing them to sue
not only their employers, but their col-
leagues, as well. These problems cannot
be solved by joinder of a defendant
class or of a union, which would create
Significant problems of their own. But
these difficulties can and will be
avoided if this Court adopts the rule
amici urge.
ARGUMENT

I. THOSE WITH NOTICE AND AN
OPPORTUNITY TO INTERVENE IN
PROCEEDINGS CULMINATING IN A
CONSENT DECREE SHOULD NOT BE
PERMITTED TO ATTACK THAT DECREE

IN_A_ SUBSEQUENT LAWSUIT

No fewer than six of the eight
courts of appeals that have considered
the question have barred collateral at-
tacks on consent decrees. See Culbreath
v. Dukakis, 630 F.2d 15, 22-23 (lst Cir.
1980); Devereaux v. Geary, 765 F.2d 268,
271 (lst Cir. 1985), cert. denied 106 S.

=*

Ct. 3337 (1986); Marino v. Ortiz, 806
F.2d 1144 (2d Cir. 1986), aff'd by an
equally divided Court, 108 S. Ct. 586
(1988); Goins v. Bethlehelin Steel Corp.,
657 F.24@ 62: (408 Cie. 1981), cert.
denied 455 U.S. 940 (1982); Thaggard v.
City of Jackson, 687 F.2d 66 (5th Cir.
1982), cert. denied sub nom. Ashley v.
City of Jackson, 464 U.S. 900 (1983);
Striff v. Mason, 849 F.2d 240 (6th Cir.
1988); Stotts v. Memphis Fire Dep't.,
679 F.2d 561, 558 (6th Cir. 1982), rev'd
on other grounds sub nom. Firefighters
Local Union No. 1784 v. Stotts, 467 U.S.
561 (1984); Dennison v. City of Los
Angeles Dep't of Water & Power, 658 F.2d
694, 696 (9th Cir. 1981). In addition,
the Third Circuit has summarily affirmed
a decision holding a collateral attack

on a Title VII consent decree

stfu

impermissible, O'Burn v. Shapp, 70
F.R.D. 549, 552-553 (E.D. Pa) aff'd mem.
sub nom. Lutz v. Shapp, 546 F.2d 417 (3d
Cir. 1976), cert. denied 430 U.S. 968
(1977), and has applied the rule in
other contexts, see, e.g., National
Wildlife Federation v. Gorsuch, 744 F.2d
963 (3d Cir. 1984); Society Hill Civil
Ass'n v. Harris, 632 F.2d 1045, 1052 (3d

Cir. 1980). By contrast, only one other
court of appeals has joined the Eleventh
Circuit in taking the contrary view.
See Dunn v. Carey, 808 F.2d 555 (7th
Cir. 1986). As amici set forth below, a
rule barring collateral attacks brought
by persons who had notice and the
opportunity to intervene before entry of
the decree is fully warranted by

principles of preclusion law, meets due

ihe

process requirements, and should be

adopted by this Court .2/

A. Established Principles of

Preclusion Fully Support A

Rule Barring Collateral

Attacks By Those Who Had

Notice and An Opportunity
_Intervene

The rule barring collateral attacks

is grounded in the recognition that

l1/ There is nothing to the contrary in
this Court's decision in lJLocal 93,
international Association ——_of__Fire-

fighters v. City of Cleveland, 106 S.

Ces 3068 (1986). There, the Court
recognized that “[a] court's approval of
a consent decree between some of the
parties...cannot dispose of the valid
Claims of non-consenting intervenors; if
properly raised, these claims remain and
may be litigated by the intervenor."

Id. at 3079 (emphasis added). But,
because Local No. 93 had “failed to
raise any substantive claims" before the
entry of the consent decree, the Court,
in affirming the approval of the decree,
expressly raised the question "[w]Jhether
it is now too late to raise _ such
Cclaims...." Id. at 3080. In short, the
Court carefully reserved the possibility
that opponents of Title VII consent dec-
rees may lose any claims not timely
raised.

sits

permitting separate lawsuits to chal-
lenge a consent decree “would raise the
specter of inconsistent or contradictory
proceedings, would promote continued un-
certainty thus undermining the concept
of a final judgment and would violate
the policy of promoting settlement in
Title VII actions." Marino v. Ortiz,
806 F.2d at 1146. The Eleventh Circuit
ignored all of these factors, because it
found singularly dispositive the fact
that Respondents were not parties to the
prior proceedings. In applying so in-
flexible a rule, however, the court

below plainly erred.

sige

Rs The Compelling Int-
erests Supporting
Preclusion Have’ Led
to Many Judi-
cially-Created Ex-
ceptions to the Rule
That Only Parties May

Be Bound

Although “the general rule is that
non-parties to the first action are
not bound by a judgment or resulting
determination of issues," Sealand
Services, Inc. v. Gaudet, 414 U.S. 573,
593 (1974), this Court has recognized
that “several exceptions exist," id. at
593 -- including many exceptions carved
out by judges.

For example, persons whose interests
were actually represented by a party are
bound. See, e.g., Nevada v. United
States, 463 U.S. 110, 139 (1983);
Sea-Land Services, 414 U.S. at 593;
Hansberry v. Lee, 311 U.S. 32, 42-43
(1940); Heckman v. United States, 224

wAT=

U.S. 413, 445-446 (1912). Likewise, a
non-party is bound by a decision where
his interests are “so similar to a
party's” that the party was his “virtual
representative” in the previous action.
United States v. Geophysical Corp., 732
F.2d 693, 697 (9th Cir. 1984); see
Aerojet General Corporation v. Askew,
S35 .36 - Fig. Fi St Céit:>?. arEet.
denied 423 U.S. 908 (1975); Cotton v.
Federal Land Bank of Columbia, 676 F.2d
1368 (llth Cir.), cert. denied 459 U.S.
1041 (1982); Mother's Restaurant, Inc.
v. Mama's Pizza, Inc., 723 F.2d 1566,
1572 (Fed. Cae. 1983). Further,
non-parties who exercise significant
"control" over litigation are also sub-
ject to preclusion. See, e.g., Montana
v. United States, 440 U.S. 147, 154-155
(1979); Drummond Vv. United

="

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

Souffront v. Companie des Sucreries, 217
u.S. 475, 486-487 (1910). And, prin-

ciples of estoppel have been applied to
bind non-parties who, by conduct, acqui-
escence or delay, induce others to be-
lieve that they will be bound by the
outcome of litigation. See, e.g.,
Christiansen v. Farmers Ins. Exchange,
540 F.2d 472 (5th Cir. 1972); Awtry v.
United States, 684 F.2d 896, 898-899
(Ct. Claims 1982); Restatement (Second)
of Judgments, § 62 (1982); cf. Ohio v.
Kentucky, 410 U.S. 641, 651 (1973) (ac-
quiescence in location of border).
Indeed; this Court has itself twice
embraced the principle that is central
to this case -- namely, that non-parties
may be bound by the results of a lawsuit

if they had notice and failed to

y=

intervene to assert their own int-
erests. See Penn-Central and N&W
Inclusion Cases, 389 U.S. 486, 505-506
(1968); Provident Tradesmens Bank &
Trust Co. v. Patterson, 390 U.S. 102
(1968). In Penn Central, the Court held
that a non-party to proceedings in New
York was precluded from litigating in
parallel Pennsylvania proceedings issues
resolved in New York, because’ the
non-party had and declined “an adequate
opportunity to join in" the New York ac-
tion. 389 U.S. at 505. That same year,
the Court suggested in Provident
Tradesman's Bank that preclusion might
apply to those who “purposely bypassed
an adequate opportunity to intervene.”

390 U.S. at 114. The principle recog-
nized in these cases has been applied

regularly in the lower federal

==

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

F.2d 475, 482-83 (D.C. Cir. 1983)

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

1206 (1984); Bergh Vv. State of

Washington, 535 F.2d 505, 507 (9th Cir.
1976) (Kennedy, J.); Grann v. City of
Madison, 738 F.2d 786, 794-96 (7th
Cir.); cert. den. 469 U.S. 918 (1984);
Adams v. Bell, 711 F.2d 161, 168-170
(D.C. Cir. 1983) (en banc), cert. denied
465 U.S. 1021 (1984); National Wildlife
Federation v. Gorsuch, 744 F.2d at 967.
As set forth below, amici urge the Court
to apply this principle here.

a. This Court Should Ap-

ply Penn Central and

Provident Tradesman's

Bank to Bar Coll-

ateral Attacks on

Consent Decrees
A rule based on Penn Central and

Provident Tradesman's Bank that bars

aZle

collateral attacks brought by those who
had the opportunity to intervene on a
timely basis, like the rules of pre-
clusion applied to non-parties in the
various circumstances set forth above,
promotes the compelling interests’ that
generally underlie the doctrines of res
judicata and collateral estoppel --
"“protect[ing] adversaries from the ex-
pense and vexation attending multiple
lawsuits, conserv[ing] judicial re-
sources, and foster[ing] reliance on
judicial action by minimizing the pos-
Sibility of inconsistent decisions."

Montana _v. United States, 440 U.S. at
153-154 (footnote omitted); see also
Nevada _v. United States, 463 U.S. at
129. The rule adopted by the Eleventh
Circuit, by contrast, radically under-

mines the interests protected by

al2a

rules of preclusion, and should be re-
jected by this Court.
a. Collateral

Attacks
Undermine

ae

First, the related interests of fin-
ality and judicial economy weigh heav-
ily. In an era of overcrowded court
dockets, it is difficult to justify per-
mitting those with notice of a lawsuit
that might affect their rights to ab-
stain deliberately from participation as
party intervenors. Where such parties
sit on the sidelines or, as here, wait
until the eleventh hour to seek inter-
vention and then, if unsuccessful,
launch a later collateral suit, a second
court is asked to examine the very same
matters that were, or could have been,
decided in the first action. Federal

courts can ill-afford to allocate

alte

precious resources to indulge such sand-
bagging and "deliberate tactical
jockeying.” 18 Wright, Miller & Cooper,
Federal Practice and Procedure, § 4457,
at 495 (1981).

Moreover, permitting interested per-
sons to bypass intervention in favor of
a second round of protracted litigation
will only delay final resolution of the
dispute. Such delay is especially harm-
ful in the context of public. employ-
ment. For if the employer is unabie to
fill positions in the face of lengthy,
continuing litigation, vitally important
public safety needs may well go unmet.
If, on the other hand, the employer
proceeds to to fill vacant positions in
accordance with the consent decree, even
in the face of a second lawsuit

challenging the practices authorized

idea

by the decree, a different set of
difficulties -- no less troubling --
will arise. If candidates are ap-
pointed to positions pursuant to the
consent decree during the second liti-
gation, and such appointments are later
invalidated, the employer and employees
might face demands that people be re-
moved from jobs. Such a circumstance
would, in turn, raise difficult ques-
tions in many civil service systems,
where important rights relating to
seniority, pensions, other benefits, and
eligibility for promotion, may accrue by
virtue of an employee's holding a posi-
tion. At the very least, the continued
cloud of uncertainty and division that
will hang over the workplace is likely
to exact a high cost in employee morale

and productivity. Thus, for public

| =

employers, public employees and the pub-
lic at large, long delays in the final
resolution of Title VII litigation
carries with it disturbing consequences
-- consequences that are avoided by a
rule barring collateral attacks by those
who could have intervened timely in the
earlier litigation.
b. Collateral
Attacks
Undermine

Settlement

Incentives _._

Collateral attacks on consent dec-
rees severely undermine the con-
gressional intent that "“[{c]Jooperation
and voluntary compliance” be the "“pre-
ferred means for achieving” the purposes
of Title Vil. Alexander Vv.
Gardner-Denver Co., 415 U.S. 36, 44
(1974); see Local 93, International —

aiitie

Ass'n of Firefighters v. City of
Cleveland, 106 S. Ct. at 3072; 3076,
n. 13 (1986). The many consent decrees
that are entered into in Title VII and
related cases demonstrate that Congress
has achieved some success in effec-
tuating this’ policy. For example, in
the year ending June 30, 1987, there
were 310 civil rights employment cases
in the federal courts. (involving both
public and private employers) that were
terminated by a consent decree granting
some form of relief to plaintiff(s); for
the year ending June 30, 1986, there
were 344.%/

These statistics suggest that, given

the frequent use of consent decrees in

2/ Unpublished figures available from
the Statistical and Reports Division of
the Administrative Office of the United
States Courts, Washington, D.C.

alZe

employment cases, chaos and confusion
will likely result if this Court adopts
the Eleventh Circuit's approach as its
own. Such a depar*ure from the majority
rule barring collateral attacks may well
produce an onslaught of ‘new challenges
to consent decrees that have been in
place for years, on which employees and
employers have long relied, and which
have continuing and present effect.
Moreover, the prospective effect
clearly will be to discourage sett-
lements in Title VII cases. Public emp-
loyers who know that a consent decree is
subject to later collateral attack by
other employees will have little in-
centive to settle Title VII cases, no
matter how meritorious the plaintiff's
claims, no matter how costly further

litigation may be in taxpayer's dollars,

«$=

and no matter how fair and appropriate a
proposed settlement may be. Plaintiff
employees will likewise be under-
standably reticent to settle if the pro-
spect of a collateral attack by those
who have chosen to sit on the sidelines
may be right around the corner. Thus,
the congressional policy favoring volun-
tary compliance settlement will likely
be the first casualty of a holding by
this Court rejecting the majority rule

barring collateral attacks .=”

3/ Rejecting the majority rule against
collateral attacks will affect not only
state employers' willingness to settle
cases; it will also weaken the ability
of the states to enforce their own civil
rights statutes. Pursuant to 42 U.S.C.
§§ 2000e-5(c), 2000e-8(b), many state
and local antidiscrimination agencies
have cooperative agreements with the
Equal Employment Opportunity Commission,
through which the state or local agency
assumes jurisdiction of claims

(footnote continued)

oZ9-

‘Indeed, if this Court adopts a rule
permitting collateral attacks on consent
decrees, its decision will also under-
mine settlement in other kinds of public
law litigation where consent decrees
have been usefully employed, such as en-
vironmental, school desegregation = and
other institutional reform cases. Such
a result would be unfortunate because,
in appropriate circumstances, consent

decrees may represent the best vehicle

(footnote continued)

cognizable under both Title VII and the
cognate state or local anti-
discrimination laws. Because of fre-
quent docket overcrowding and resource
constraints, consent decrees are a vital
enforcement tool for the states. A dec-
ision by this Court that subjects such
decrees to easy collateral attack will
seriously hamper state enforcement
efforts in this important area.

-%30-

for bringing about needed reforms in a
way that permits public entities to par-
ticipate in shaping the relief, and so
to produce a better, more practicable
decree -- subject, of course, to full
judicial review and approval in the
first instance, and continuing judicial
oversight as necessary. See generally
Schwarzschild, Public Law by Private
the Fairness of Negotiete. Institutional
Reform, 1984 Duke L.J. 887. In addi-
tion, consent decrees save the parties
and the courts the time and expense of
large-scale litigation and spare each
party the risk of losing a “winner-

take-all” trial. Id. at 898-899. Thus,
this Court should not lightly adopt a

rule that will so decisively undercut

«Sie

the efficacy of consent decrees. see
Local 93, 106 S. Ct. at 3076 n. 13 (dis-
cussing advantages of consent decrees).

Ce Collateral
Attacks Under-
mine Compliance
With Court

Orders ee

Collateral attacks on Title VII con-
sent decrees will create a substantial
risk that employers will be subject to
conflicting ‘on inconsistent obli-
gations. Where a cc:sent decree autho-
rizes race-conscious procedures in pro-
motional selection, for example, and a
subsequent order in collateral liti-
gation bars any such procedures, the em-
ployer will be faced with diametrically
opposite obligations imposed by diff-
erent courts. The employer may well be

forced into contempt of one or the other

afte

court's order. As chief law enforcement
officials, amici are particularly con-
cerned that such a spectacle, arising in
the context of highly publicized cases
concerning public employment, will pro-
voke Or exacerbate race- and
gender-based divisions by forcing public
employers to “choose” which order to
honor, and so will seriously undermine
public faith in the rule of law and in
the judicial sys- tem. That result is
wisely avoided by the collateral attack
rule adopted io the majority of the
courts of appeals.
d. Collateral

Attacks
Undermine

Fairness
A rule permitting collateral attacks
by parties who have declined to inter-
vene on a timely basis is, put simply,

unfair. Rules of preclusion

=

have traditionally been shaped by prin-
ciples of fairness. See e.g., Hansberry
v. Lee, 311 U.S. at 42; United Mine
Workers v. Gibbs, 383 U.S. 715, 724
(1966); Restatement (Second) of
Judgments, § 19, com. a (1982). It is,
in turn, a fundamental principle that
those who sleep on their rights may pro-
perly have to suffer the consequences.
See, e.g., Ohio v. Kentucky, 410 U.S. at
651; Awtry v. United States, supri, 684
F.2d at 898; International Union, Allied
Industrial Workers of America v. Local
Union No. 589, 693 F.2d 666, 674 (7th
Cir. 1982) (per curiam); 1 J. Pomeroy
Equity Jurisprudence, §§ 418-419 (4th
Ed. 1918). Indeed, it is precisely this

principle that led this Court in Penn

Central and Provident Tradesman's Bank

o34«

to observe that those who intentionally
bypass an opportunity to intervene in
litigation may be subject to preclusion.
This same principle of fairness gui-
des courts in determining, in their dis-
cretion, whether a motion to intervene
is timely -- even a motion to intervene
as of right. In deciding such motions,
courts generally look to the time during
which the would-be intervenor’ should
have known of its interest before inter-
vening; the prejudice to the existing
parties as a result of the would-be in-
tervenor's delay; the prejudice to the
would-be intervenor if its motion is
denied; and any unusual circumstances in
the case. See Stallworth v. Monsanto
Co., 558 F.2d 257 (Sth Cir. 1977); South

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

win

see generally NAACP v. New York, 413
U.S. 345, 365-368 (1973). Here, the
Eleventh Circuit applied these factors
and upheld the denial of the _ Res-
pondents' eleventh-hour motion to inter-
vene in the prior proceedings, based on
the untimeliness of their motion. See
Jefferson __County, 720 F.2d at
1516-1519. In so doing, that court ex-
pressly found that members of the Bir-
mingham Firefighters Association “knew
at an early stage in the [prior] pro-
ceedings that their rights could be ad-
versely affected,” 720 F.2d at 1516, and
that “having made an apparently ill-

advised decision to rely on others to
advance their interests, knowing that
they could be adversely affected, cannot

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

w2G/

In these circumstances, Respondents’
notice of the lawsuit and several
year-long opportunity to intervene sat-

isfy due process, for it is the oppor-

tunity to be heard that is crucial.
Boddie v. Connecticut, 401 U.S. 371, 378

5/ Amici do not advocate any bright
line test for determining when a
non-party has had a meaningful oppor-
tunity to intervene. Consistent with
Mullane, such a determination must be
made on a case-by-case basis. Fed. R.
civ. 24 provides an appropriate
mechanism for determining timeliness in
each case, and this Court has recognized
that the district judge, who is closest
to the facts of each case, enjoys sub-
Stanti’*. discretion in evaluating the
timeliness of a motion to intervene,
subject to review for abuse of dis-
cretion. See NAACP v. New York, 413
U.S. at 366-368. Here, the district
judge made that determination and his
denial of the motion to intervene was
upheld on appeal.

«ft»

(1971); see Armstrong v. Manzo, 380 U.S.
545, 552 (1965). Indeed, this Court has

recognized that "“[dJue process does not,
of course, require that the defendant in
every civil case actually have a hearing
on the merits,” and has accordingly held
that “the hearing required by due pro-
cess is subject to waiver.” Boddie, 401
U.S. at 378-79. Respondents may fairly
be said to have waived their opportunity
to intervene in this case.

Although amici believe the oppor-
tunity to intervene is itself sufficient
to satisfy due process, it is worth
noting that in this case Respondents
were also accorded a full opportunity to
be heard at the fairness hearing, where

their present attorney, in fact, made

ofa

the same arguments attacking the decree
that he now asserts in these collateral
proceedings. Thus, well more than the
constitutional minimum was afforded here.
Il. AN ALTERNATIVE RULE REQUIRING

MANDATORY # JOINDER IS WHOLLY
INAPPROPRIATE

As set forth above, amici believe
that persons with notice and an oppor-
tunity to intervene on a timely basis
before entry of a consent decree should
be bound, as a matter of preclusion
law. Amici thus believe that a motion
to habervens pursuant to Fed. R. Civ. P.
14 is the appropriate means for inter-
ested persons to participate in pro-
ceedings that may affect them. The sug-
gestion was made to this Court last Term
in Marino v. Ortiz, that mandatory join-
der under Fed. R. Civ. P. 19 is instead

the appropriate vehicle. Under

_\ =

this view, if parties to a consent dec-
ree wish to assert its preclusive effect
against other persons, it is the par-
ties' responsibility to join such per-
sons in the action. As amici demon-
strate below, that suggestion is deeply
flawed, and has especially grave impli-

cations for Title VII litigation.

A. Mandatory Mass Joinder of
Potentially Affected
Persons Will Create

Serious Practical Problems
That Are Avoided By

Voluntary Intervention

The premise of the mandatory joinder
argument is that no preclusive effect
may be accorded Title VII consent dec-
rees unless affected persons are joined
as parties. Should this Court adopt
such a rule, the inevitable effect will
be that parties instituting Title VII
litigation will believe that, in order

to obtain meaningful, final and

-48-

binding relief, they must join as par-
ties anyone who may one day claim to be
affected by that relief.

The practical consequences of such a
rule are staggering. The puzzling
threshold question for one seeking to
vindicate equal employment opportunity
rights under Title VII will be just whom
to sue. While the employer is’ the
natural defendant, a mandatory joinder
rule would require suing many, or even
all, fellow employees as well. If the
case concerns promotional practices, how
is the plaintiff to know who may one day
aspire to a particular promotion? Tf
the case concerns entry level jobs, how
is the plaintiff to know who may one day
seek such a_ position? By contrast,
requiring interested persons with notice

of the plaintiff's suit to make a timely

-49-

motion to intervene wholly eliminates
this uncertainty. Such a course appro-
priately leaves it to those who, with
notice, believe that their interests are
at stake to protect those interests.
Moreover, compelling Title VII
plaintiffs to join all those who might
conceivably claim to be affected parties
may mean suits involving hundreds or
even thousands of people, especially in
cases involving a large public work-
force. Compelled joinder of this magni-
tude will impose a crushing financial
burden on a plaintiff as a condition of
vindicating the rights protected under
Title VII. The mere cost of duplicating
and serving process on so many defen-

dants may well itself be prohibitive.

-50-

Nor are the financial costs limited
to the plaintiff. Those involuntarily
joined as defendants, too, will be for-
ced to incur costs -- the cost of re-
taining an attorney, and then the cost
of either participating in discovery,
motion practice and trial or, alter-
natively, litigating to be dismissed as
an improper or unnecessary party de-
fendant. Indeed, mandatory joinder of
large numbers of co-employees is likely
to spawn a costly, burdensome new subset
of motions concerning who is and is not
a properly joined co-defendant under
Title VII. This is especially so be-
cause many involuntarily joined emplo-
yees will have strong incentives to seek
diémissal: to avoid the costs and time
involved in the litigation, to avoid po-

tential liability as a co-defendant

aie

(such as for attorneys’ fees) and, per-
haps most importantly, to avoid being
bound, and instead to remain free to
institute a second, separate lawsuit.
Furthermore, the costs of mandatory
joinder cannot be measured in dollars or
judicial time alone. Rather, mandatory)
mass joinder of co-defendants is likely
to exact a tremendous cost in workplace
morale, collegiality and productivity --
an area of great concern to states, as
public employers and administrators of
public personnel systems. Compelling
plaintiffs to sue fellow employees en
masse means compelling plaintiffs to
impose the substantial burdens and costs
of litigation on their fellow workers,
and in effect, if not intent, to charge

their colleagues with wrongdoing. The

«$2—

unavoidable effect of involuntary mass
joinder is to equate those alleged with
perpetrating discrimination with those
who may have benefited from such discri-
mination. Such compelled joinder can
only provoke’ reseitment, divisiveness
and disruption.

A mandatory joinder rule will, in
Short, plainly undermine the achievement
of Title VII's important remedial pur-
poses, «nd ultimately chill the filing
of Title VII actions. As it has in the
past, this Court should decline to adopt
procedural rules that are “inconsistent
with the underlying purposes of the sta-
tute." Occidental Life Insurance Co, v.
EEOC, 432 U.S. 355, 367 (1977) (dec-

lining to apply short state statute of

oti.

limitations to Title VII); accord Oscar
Mayer & Co. v. Evans, 441 U.S. 750, 763
(1979).

Nor would these serious problems
evaporate if the burden involuntarily to
join co-employees falls to the defendant
employer, instead of the plaintiff. The
specter of an employer dragging scores
of its employees’ into litigation --
whether as co-defendants or adverse par-
ti.s -- does nothing to mitigate the
problems of dividing the employee popu-
lation and undermining morale, nor the
problem of imposing financial costs on
the involuntarily joined employees.
Instead, it may well only exacerbate
these problems by driving a wedge he-
tween the employer and the employees
whom it involuntarily brings into court
~~ and ultimately making far more diffi-

cult the task of reconciling all

tin

employees to necessary changes in the
workplace.

Self-selected intervention by those
with notice of the proceedings who wish
to participate does not create these
risks. It does not impose the poten-
tially huge financial and interpersonal
costs of mass joinder on a plaintiff,
nor does it visit the unwanted burden
and expense of litigation on involun-
tarily joined ind v’- ual defendants.
Instead, only these employees wishing to
assert their own interests will inter-
vene. Provided that their motion to do
so is asserted on a timely basis, it is
likely to be, and ought to be, granted.
See, e.g., Howard v. McLucas, 782 F.2d

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

iin

B. Neither Joinder of a Defe-
ndant Class, Nor Joinder
of Unions, Will Resolve

The Serious Practical
Problems with Mandatory
Joinder. enc

Many of the problems caused by a
rule requiring mandatory joinder of all
interested individuals might appear, at
first blush, to be avoidable through the
use of defendant class actions or the
joinder of unions as defendants. On
closer examination, however, these app-
roaches prove (1o %e no panacea for the
problems of mandatory joinder. Indeed,
either approach would likely itself gen-
erate a burdensome series of
side-disputes that would delay and dis-
tract from the resolution of the central

Title VII claims.

ofttin

Bi Defendant Class Ac-
tions Would Be
Unworkable

Defendant class actions in Title VII
cases would be unworkable for a number
of reasons. First, it may be difficult
to find a defendant class representative
who is willing and able to undertake the
burden and expense of the litigation.
This problem is exacerbated where, as
here, neither the putative class repre-
sentative, nor the class members, have
any incentive to be bound by the resulcs
of the litigation. To the contrary, em-
ployees opposed to Title VII relief, in
order to preserve their freedom to bring
later collateral attacks on the relief
ultimately agreed to or awarded, will

more likely purposely avoid -- indeed,

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

=, =

v. Pennsylvania State Police, 578 F.2d

at 916.

Moreover, a person named as repre-
sentative of a defendant class has every
incentive to provide inadequate repre-
sentation, knowing that this will pave
the way for later collateral attacks by
class members arguing that they were in-
adequately represented in, and thus not
bound by, the earlier litigation. These
attacks, if successful, will cerult in
relief from the consent decree that
would benefit not only the attackers,
but all existing employees, including
the original class representatives. In
terms of both resources and results,
then, unwilling defendant class repre-
sentatives have everything to gain and

nothing to lose from providing weak

representation.

atin

Defendant class representatives de-
Signated by plaintiffs will face addi-
tional difficulties in providing ade-
quate representation, because of the
likely divergence of interests within
the defendant class. Class members' in-
terests will vary according to their
seniority, rank, department, and status
as a present, as opposed to future, emp-
loyee. Those defendant class members
with less to lose will at some point
come to favor settlement, whereas those
with the most to lose will favor liti-
gation to the bitter end. It therefore
appears likely that, unless proper sub-
classes are designated, representation
will be inadequate and the consent de-

cree will remain subject to later attack.

_ *

Yet it is defendant class members
who will be in the best position to sort
themselves into adequately repre-
sentative subclasses. Under a mandatory
joinder approach however, they will have
little incentive to do so, knowing that
inadequate representation will preserve
their freedom to bring later attacks.
It is only where interested persons with
notice and an opportunity to intervene
are held to be bound that those persons
will have any incentive to designate
adequate class representatives.

None of these serious problems is
posed where interested employees
themselves seek to intervene, and choose
to do so as a class. In such a circum-
stance, they will select their own

representative, they will divide into

- =

appropriate subclasses if necessary, and
their chosen representatives will be
fully motivated to provide full and

adequate representation.

, » Mandatory Joinder of
Unions Would Also Be
Unworkable

It is likewise no answer to suggest
that Title VII plaintiffs may easily
bind all interested parties simply by
suing the union. Such suits will
present their own particular problems in
the Title VII context.

Most important, the adequacy-of-
representation problems identified above
are not alleviated simply by suing the
union. The represented class will still
be divided along lines of rank, sen-
iority, and department, and it is open

to question whether a union composed of

-

existing employees would adequately rep-
resent the interests of future non-

minority applicants for employment.
Additionally, there is the potential for
divergence of interests between’ the
union itself and its own members. The
union may face back pay and attorney's
fee liability under 42 U.S.C. §§ 2000e-5
(g), (k), and consequently the union may
have a strong incentive to settle the
case quickly and without any admission
of involvement in past discrimination.
Union members, on the other hand, may
feel less directly affected by such lia-
bility and more interested in avoiding
prospective relief at any cost; they
thus will favor litigation over

settlement.

«@2=

Indeed, this Court has recently
recognized that unions and Similar
associations:

will not always be able to re-
present adequately the _ inte-
rests of all their injured
members. Should an association
be deficient in this regard, a
judgment won against it might
not preclude subsequent claims
by the association's members
without offending due _ process

principles. And were we pre-
sented with evidence that such
a problem existed . . ., we

would have to consider how it
might be alleviated.

International Union, United Automobile

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

(1986). Because the mandatory joinder
approach’ presents potential for in-
adequate representation, this Court
should “consider how it might be alle-
viated" and adopt a mandatory’ inter-
vention approach in this case. The al-
ternative is to leave to the lower

courts the burdensome task of dealing

aitin

with the spate of collateral attacks
alleging inadequate representation that
are likely to ensue from the adoption of
a mandatory joinder approach.
CONCLUSION

A rule barring collateral attacks by
those who have had and declined a fair
opportunity to intervene in an action on
a timely basis promotes compelling in-
terests served by preclusion law, satis-
fies due process requirements and appro-
priately relies on self-selected inter-
vention by interested parties. An al-
ternative rule requiring mandatory join-
der, by contrast, is impractical, bur-
densome for all, and inconsistent with
the policies underlying Title VII.

For all of the foregoing reasons,

amici respectfully urge that the

«440

judgment of the Eleventh Circuit be
reversed.
Respectfully submitted,

JAMES M. SHANNON
Attorney General
Commonwealth of Massachusetts

ALICE DANIEL
Deputy Attorney General
Counsel of Record

JANE S. SCHACTER

PETER SACKS

Assistant Attorneys General
One Ashburton Place

Boston, MA 02108

(617) 727-2200

® Theodore Lund, a student in the
summer program of the Massachusetts
Department of the Attorney General,
assisted counsel in the preparation of
this brief.

- =

ROBEFT M. SPIRE
Attorney General of

BRIAN MCKAY
Attorney General of

STEPHEN E. MERRILL
Attorney General of

CARY EDWARDS
Attorney General of

ROBERT ABRAMS
Attorney General of

Nebraska

Nevada

New Hampshire

New Jersey

New York

ANTHONY J. CELEBREZZE, JR.

Attorney General of

ROBERT H. HENRY
Attorney General of

JAMES E. O'NEIL
Attorney General of

Oh10

Oklahoma

Rhode Island and

Providence Plantations

T. TRAVIS MEDLOCK
Attorney General of

JIM MATTOX
Attorney General of

JEFFREY AMESTOY
Attorney General of

GODFREY R. deCASTRO
Attorney General of

MARY SUE TERRY
Attorney General of

CHARLIE BROWN
Attorney General of

DONALD J. HANAWAY
Attorney General of

JOSEPH B. MEYER
Attorney General of

South Carolina

Texas

Vermont

Virgin Islands

Virginia

West Virginia

Wisconsin

Wyoming

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0379%3A17. Public record. Not legal advice.