Carson v. American Brands, Inc. Brief Amicus Curiae of the Equal Employment Advisory Counsel in Support of Petitioners

    No. 79-1236

In The

i ’upnw (Emtrt nf %  Imtefr
October Term, 1979

Frank L. Carson, Lawrence Hatcher, 
Stuart E. Mines,

Petitioners,
v.

A merican Brands, Inc., t /a  The A merican To­
bacco Company; Local 182, Tobacco W orkers 
International; Tobacco W orkers Internation­
al Union,

Respondents.

On a Writ o f Certiorari to the 
United States Court of Appeals for 

Fourth Circuit

BRIEF AMICUS CURIAE OF THE 
EQUAL EMPLOYMENT ADVISORY COUNCIL 

IN SUPPORT OF THE PETITIONERS

Robert E. W illiams 
Douglas S. McDowell 
Jeffrey C. McGuiness 

McGuiness & W illiams 
1015 Fifteenth Street, N.W. 
Suite 1200
Washington, D.C. 20005 
(202) 789-8600

W i l s o n  - Ep e s  P r i n t i n g  C o . .  In c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n , D .C .  2 0 0 0 1



TABLE OF CONTENTS
Page

STATEMENT OF THE CASE .........................................  3

SUMMARY OF ARGUMENT ......................   4

ARGUMENT ....................................................    6

THE ORDER REFUSING ENTRY OF THE 
CONSENT DECREE AS UNLAWFUL IS AP­
PEALABLE AS A  MATTER OF RIGHT UNDER 
28 U.S.C. §§ 1291 AND 1292(a) (1) ................... . 6

A. The District Court’s Refusal to Enter The
Consent Decree Is Appealable Under 28 U.S.C. 
1292(a) (1) As An Order Denying An Injunc­
tion ................................................................     6

B. The Order Refusing Entry Of The Consent De­
cree Is Appealable As a Collateral Order Under
28 U.S.C. § 1291 ..................................................  16

CONCLUSION ............     22

INTEREST OF THE AMICUS CURIAE ....... ..... ..... . 2



11

TABLE OF AUTHORITIES
Cases: Page

Albemarle Paper Co. v. Moody, 422 U.S. 405
(1975) ................................................... ................. 6

Alexander V. Gardner-Denver Co., 415 U.S. 36
(1974) ______ _________ _______________:_______  6

Baltimore Contractors, Inc. V. Bodinger, 348 U.S.
176 (1955)....... ...................... .................... .... .......7,10,14

Carson V. American Brands, Inc., 466 F. Supp. 780
(1977) , appeal dismissed, 606 F.2d 420 (4th Cir.
1979), cert, granted, 48 U.S.L.W. 3813 (1980).. 8

CatlinY. United States, 324 U.S. 229 (1945)_____  17
Cohen Y. Beneficial Industrial Loan Corp., 337 U.S.

541 (1949) ................................................ 5, 6,17,19, 20
Commonwealth of Pennsylvania V. Local Union 

5h2, Int’l Union of Operating Engineers, No. 71- 
2698 (E.D.Pa,), order dated November 7, 1979.. 15

Coopers & Lybrand V. Livesay, 98 S. Ct. 2454
(1978) ............. ............... ................. .................... . 14,19

Dayton Board of Education V. Brinkman, 433 U.S.
406 (1977) _______ _________________ ____ _____ 13

Eiseny. Carlisle & Jacquelin, 417 U.S. 156 (1974).. 16,18 
Equal Employment Opportunity Commission v. 

International Longshoremen’s Association, 511
F.2d 273 (5th Cir. 1975)........... ........ ......._..+___  8,10

Florida Trailer and Equipment Co. V. Deal, 284
F.2d 507 (5th Cir. 1960).......... ........................ . 14

Gardner V. Westinghouse Broadcasting Co., 98
S, Ct. 2451 (1978) .... ............ ............................2,10,11

Gillespie V. United States Steel Corporation, 379
U.S. 148 (1964) ................ .......................................  18

Goldstein V. Cox, 396 U.S. 471 (1970) .................... 10
Great American Federal Savings & Loan Associa­

tion V. Novotny, 99 S. Ct. 2345 (1979)...............  2, 3
International Brotherhood of Teamsters v. United

States, 431 U.S. 324 (1977 )_________ ____ ____  3
Land V. Dollar, 330 U.S. 731 (1947) ............ :..........  18
Lewis V. Tobacco Workers International Union,

577 F.2d 1135 (4th Cir. 1978), cert, denied, 439 
U.S, 1089 (1979).......... ............................................  7,9



Ill

TABLE OF AUTHORITIES— Continued
Page

Liberty Mutual Insurance Company V. Wetzel, 424
U.S, 737 (1976) ............... i........... .......... ................. 10,19

Mercantile National Bank at Dallas v. Langdeau,
371 U.S. 444 (1963) ........................................ . 17

Myers V. Gilman Paper Corp., 544 F.2d 837 (5th
Cir. 1977) ..................... .............. ..............................  8, 9

Norman V. McKee, 431 F.2d 769 (9th Cir. 1970),
cert, denied, 401 U.S. 912 (1971).......... .............. 20

Oatis V. Crown Zellerbach Corp., 398 F.2d 496 (5th
Cir. 1968) ______________        7

Oscar Mayer & Co. V. Moody, 99 S. Ct. 2066
(1979)         6

Seigal V. Merrick, 590 F.2d 35 (2d Cir. 1978)....... : 20
Switzerland Cheese Association V. E. Horne’s Mar­

ket, Inc., 385 U.S, 23 (1966) ............. ............................. .............  9, 10
United A ir Lines v. Evans, 431 U.S. 553 (1977).. 3
United States V. Alexandria, 22 FEP Cases 872

(5th Cir. 1980) ................   8
United States v. Armour & Co., 402 U.S. 673

(1971) ........................................................................ 12
United Steelworkers v. Weber, 99 S. Ct. 2721

(1979) ..................................................  6
Statutes:

28 U.S.C. § 1291.................................................... ....... .passim
28 U.S.C. 1291(a)(1) ........................................... ......passim
Title VII o f the Civil Rights Act of 1964, as 

amended:
42 U.S.C. §§ 2000e et seq.................. .................. 2, 3
42 U.S.C. § 1981.....................................................  2, 3
42 U.S.C. § 1291.......................................... ..........passim
42 U.S.C. § 1292(a) (1) ........... ........................ .passim

Miscellaneous:

9 Moore’s Federal Practice T f  110.19 (2d E d.).........  7
Note, 75 Harv. L. Rev. 351 (1961)........... ..............  18



In The

^uprottf (Emtrt uf %  Hmtefr States
October Term, 1979

No. 79-1236

Frank L. Carson, Lawrence Hatcher, 
Stuart E. Mines,

Petitioners,
v.

A merican Brands, Inc., t/'a The A merican To­
bacco Company; Local 182, Tobacco W orkers 
International; Tobacco Workers Internation­
a l  Union,

Respondents.

On a Writ of Certiorari to the 
United States Court of Appeals for 

Fourth Circuit

BRIEF AMICUS CURIAE OF THE 
EQUAL EMPLOYMENT ADVISORY COUNCIL 

IN SUPPORT OF THE PETITIONERS

The Equal Employment Advisory Council (EEAC), 
with the written consent of all parties, respectfully 
submits this brief as Amicus Curiae in support of the 
Petitioners.1

1 Their consents have been filed with the Clerk of the Court.



2

EEAC is a voluntary nonprofit association orga­
nized to promote the common interest of employers 
and the general public in sound government policies, 
procedures and requirements pertaining to nondis- 
criminatory employment practices. Its membership 
comprises a broad segment of the employer commu­
nity in the United States, including both individual 
employers and trade and industry associations. Its 
governing body is a Board of Directors composed 
primarily of experts and specialists in the field of 
equal employment opportunity whose combined ex­
perience gives the Council a unique depth of under­
standing of the practical and legal considerations 
relevant to the proper interpretation and application 
of EEO policies and requirements.

Substantially all of EE AC’s members or their con­
stituents, are subject to the provisions of Title VII 
of the Civil Rights Act of 1964, as amended (42 
U.S.C. §§ 2000e et seq. and 42 U.S.C. §1981). As 
such, EEAC’s members have a direct interest in the 
issue presented for the Court’s consideration; that is, 
whether the court of appeals erred in holding that the 
petitioners were not entitled, under 28 U.S.C. §§ 1291 
and 1292(a) (1 ), to appeal the denial by the district 
court of a joint motion by the parties to approve and 
enter a proposed consent decree settling claims of 
employment discrimination under Title VII of the 
Civil Rights Act of 1964 and 42 U.S.C. § 1981.2

INTEREST OF THE AMICUS CURIAE

2 Because of its interest in issues involving the Court’s in­
terpretation of Title VII, EEAC has filed amicus curiae briefs 
in other equal employment cases. See e.g., Gardner V. West- 
inghouse Broadcasting Company, 437 U.S. 478 (1978) ; Great



Petitioners representing a class of black present 
and former employees and applicants for employment 
of a subsidiary of the respondent American Brands, 
Inc., brought this suit on October 24, 1975, alleging 
discrimination in hiring, promotion and transfer in 
violation of 42 U.S.C. § 1981 and Title VII of the 
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 
After extensive discovery, the parties reached an 
agreement settling outstanding claims between them 
and jointly moved the district court to approve a 
proposed consent decree which would have ordered 
American Brands and the union to take affirmative 
action with respect to the hiring and promotion of 
black employees. Among other things, the company 
and the union would have been directed to set as a 
goal for one of its departments the filling of one-third 
of all supervisory positions with qualified blacks 
within a specified time period. The decree stated 
that the employer and union denied having engaged 
in discriminatory conduct and that the court found 
from the evidence previously filed that there were 
no discriminatory hiring practices at the facility in 
question. In a memorandum opinion and order, the 
district court refused to enter the proposed decree 
on the ground that it illegally granted racial prefer­
ences to black employees as there was no showing of 
past discrimination by the employer.

On September 14, 1979, the court of appeals sitting 
en banc dismissed for lack of jurisdiction the appeal 
of the district court’s order. It held that the district

B

STATEMENT OF THE CASE

American Federal Savings & Loan Association v. Novotny, 
99 S. Ct. 2345 (1979) ; International Brotherhood of Team­
sters V. United States, 431 U.S. 324 (1977) ; and United Air 
Lines V. Evans, 431 U.S. 553 (1977).



4

court’s order denying the injunctive relief was neither 
a final decision appealable under 28 U.S.C. § 1291 
nor an order refusing an injunction under 28 U.S.C. 
§ 1292(a )(1 ). Three of the seven judges dissented, 
concluding that the denial was appealable under the 
latter statute.

SUMMARY OF ARGUMENT

The district court’s order denying entry of the 
consent decree satisfied the requirements of 28 U.S.C. 
§§ 1291 and 1292(a) (1 ), thereby giving the Fourth 
Circuit jurisdiction to consider whether the legal 
grounds relied upon by the trial court to reject the 
terms of the proposed settlement were valid. Section 
1292(a) (1) provides appellate review as a matter of 
right for interlocutory orders refusing injunctions. 
Accordingly, whether the district court’s order was 
appealable under Section 1292(a)(1 ) initially turns 
on whether the denial of the consent decree consti­
tuted the refusal of an injunction. Because the pro­
posed decree contained directives mandating substan­
tial changes in the defendants’ hiring and promotion 
practices, that question must be answered in the 
affirmative.

Also, in a series of decisions this Court has de­
lineated the scope of appellate jurisdiction authorized 
by Section 1292(a )(1 ). These opinions make clear 
that such jurisdiction will not be denied interlocutory 
orders of district courts which pass on the legal suf­
ficiency of the appellant’s claim for relief or for 
which effective review would be precluded if the ap­
peal were delayed until the conclusion of the trial. 
Here, the district court clearly denied the requested 
relief on the ground that it could not lawfully be 
granted. Second, it is highly unlikely that a post­



5

trial ruling on a pre-trial settlement issue would 
provide meaningful review. After trial, the pretrial 
settlement issues would no longer be viable, as the 
question of liability would have been resolved at trial 
and the appropriate remedy would be directly related 
to the violation found, if any. Also, the parties 
would have little incentive at the end of a trial con­
clusively establishing liability to seek judicial per­
mission to reenter an agreement reached through 
disclaimers of liability. As a result, the opportunity 
to resolve the issues before trial would have been lost 
and the policy of Title VII favoring voluntary com­
pliance would have been undercut.

Appellate jurisdiction is also available as a matter 
of right under the collateral order doctrine recognized 
by this Court in Cohen v. Beneficial Industrial Loan 
Corporation, 337 U.S. 541 (1949). That doctrine 
sets aside the finality requirement for interlocutory 
rulings of the kind from which the instant appeal 
was taken— i.e., those that conclusively determine a 
disputed question completely divorced from the merits 
of the action.

Finally, Congress has selected settlements to be the 
primary means of enforcing Title VII. Obviously, 
there is greater incentive to undertake serious settle­
ment negotiations and to seek creative solutions to 
the issues posed if the parties can be reasonably cer­
tain that any question concerning the validity of 
settlement terms that they negotiate can be resolved 
quickly. If, however, district courts are to be given 
a carte blanche to circumscribe narrowly the legal 
grounds for settlement and effective review of such 
rulings is to be withheld until after trial, that result 
would have a debilitating effect on the process by 
which employment discrimination claims are settled.



6

ARGUMENT

THE ORDER REFUSING ENTRY OF THE CONSENT 
DECREE AS UNLAWFUL IS APPEALABLE AS A 
MATTER OF RIGHT UNDER 28 U.S.C. §§ 1291 AND 
1292(a)(1)

A. The District Court’s Refusal to Enter The Consent 
Decree Is Appealable Under 28 U.S.C. 1292(a)(1) As 
An Order Denying An Injunction

Although 28 U.S.C. § 1291 generally limits appel­
late review of district court orders to final decisions, 
exceptions are available for certain interlocutory or­
ders which have final and irreparable effect on the 
rights of the parties. 28 U.S.C. § 1292; Cohen v. 
Beneficial Industrial Loan Corp., 337 U.S. 541 
(1949). The question before the Court is whether 
the district court’s order refusing entry of a consent 
decree resolving the employment discrimination claims 
alleged by the plaintiffs falls within any such excep­
tions.3 As now discussed, the decision below is con­

3 In answering this question, we urge the Court to consider 
the implications of its decision upon the enforcement of Title 
VII. The holding of the Fourth Circuit majority denying the 
right to appeal the district court’s refusal to approve the 
parties’ settlement undercuts Congress’ decision that coopera­
tion and voluntary compliance with the civil rights laws are 
“ the 'preferred means for achieving [the elimination of un­
lawful employment discrimination], . . .”  Alexander V. 
Gardner-Denver Co., 415 U.S. 36, 44 (1975) (emphasis in 
the original). See also United Steelworkers V. Weber, 99 S. 
Ct. 2721, 2728 (1979) ; Oscar Mayer & Co. v. Evans, 99 S. Ct. 
2066, 2071 (1979) ; and Albemarle Paper Co. V. Moody, 422 
U.S. 405, 417-18 (1975). To comply with this Congressional 
mandate, “ there is great emphasis in Title VII on private 
settlement and the elimination of unfair practices without



trary to the statutes governing appellate review and 
to the purposes of Title VII and other civil rights 
statutes.

Section 1292(a) (1) provides that:
The courts of appeals shall have jurisdiction of 

appeals from :
(1) Interlocutory orders of the district courts 

. . . granting, continuing, modifying, refusing or 
dissolving injunctions, or refusing to dissolve or 
modify injunctions . . . .  (emphasis supplied).

Appealability, therefore, initially turns on whether 
the district court’s refusal to enter the relief re­
quested “was the refusal of an ‘injunction’ under 
§ 1292.” Baltimore Contractors, Inc. v. Bodinger, 
348 U.S. 176, 180 (1955).

An injunction has been defined as a judicial com­
mand that a party act in certain instances and/or 
not act in others, Lewis V. Tobacco Workers’ Inter­
national Union, 577 F.2d 1135, 1139 (4th Cir. 1978), 
cert, denied, 439 U.S. 1089 (1979), and an inter­
locutory order denying an injunction has been de­
scribed as an order temporarily refusing to award 
part or all of the permanent injunctive relief sought 
by the claimant. 9 Moore’s Federal Practice ff 110.19 
(2d Ed.). It is indisputable, therefore, that the 
denial of the decree in this case was a denial of 
injunctive relief. Styled “ Injunctive Relief for the 
Class,” the proposed settlement would have directed 
changes in seniority and benefit systems, established 
hiring goals for qualified blacks in certain supervisory 
positions, granted job bidding preferences for sea­

litigation.” Oatis V. Crown Zellerbach Corp., 398 F.2d 496, 
498 (5th Cir. 1968) (emphasis added). See the discussion 
below (pp. 11-16).



8

sonal employees and prohibited discrimination against 
black employees. Indeed, even the court of appeals 
considered the relief requested to be injunctive. As 
the court stated, “ Here, injunctive relief was not 
finally denied; it was merely not granted at this 
stage of the proceedings.” Carson V. American 
Brands, Inc., 606 F.2d 420, 423 (4th Cir. 1979).

Unlike the court below, other appellate courts have 
agreed on the correctness of reviewing interlocutory 
orders respecting injunctive relief which have been 
entered during the course of employment discrimi­
nation litigation. For example, in United States V. 
Alexandria, 22 FEP Cases 872 (5th Cir. 1980), the 
court, in reviewing the trial judge’s refusal to enter 
a consent decree agreed to by the litigants, brushed 
off the jurisdictional challenge by relying on its earlier 
decision in Myers V. Gilman Paper Corp., 544 F.2d 
837, 847 (5th Cir. 1977).4 Applying the Myers 
rationale to the refusal of a consent decree, the Fifth 
Circuit concluded:

Since an order granting approval of a consent 
decree is one ‘granting’ an injunction for pur­
poses of § 1292 (a )(1 ), an order refusing ap­
proval of a consent decree is necessarily one “ re­
fusing” an injunction for purposes of § 1292 
(a ) (1 ) ,  and is therefore appealable. 22 FEP 
Cases at 874, n. 5.5

4 In Myers the court asserted j urisdiction to review the 
approval of a settlement containing injunctive provisions 
effecting changes in a collective bargaining agreement.

5 See also EEOC v. International Longshoremen’s Associa­
tion, 511 F.2d 276 (5th Cir. 1975), in which appellate juris­
diction was taken over the trial judge’s denial of a request 
for a permanent injunction merging segregated longshore­
men’s unions.



9

Similarly, in Lewis v. Tobacco Workers International 
Union, 577 F.2d 1135, as in Myers, the Fourth Cir­
cuit took jurisdiction over an appeal of an interlocu­
tory order adopting guidelines for injunctive relief 
proposed by the plaintiffs in a Title VII case on the 
basis that the order was the grant of an injunction 
under Section 1292(a )(1 ).

Also, this Court in a series of decisions has de­
lineated the scope of appellate jurisdiction authorized 
by Section 1292 (a )(1 ). These decisions make clear 
that jurisdiction is available as a matter of right 
under Section 1292(a)(1 ) if the order in question 
affects the merits or passes on the legal sufficiency 
of the appellant’s claims for injunctive relief, or ef­
fective review would be precluded if the appeal were 
delayed until the conclusion of the trial. They also 
leave open the possibility of an appeal in cases where 
more than triable issues of fact are involved. Con­
versely, appellate jurisdiction is not granted to inter­
locutory orders which merely control procedural 
aspects of the litigation, may be effectively reviewed 
after the trial court has entered final judgment, or 
do not pass on the legal sufficiency of such a claim.

For example, in Switzerland Cheese Association v. 
E. Hom e’s Market, Inc., 385 U.S. 23, 25 (1966), a 
Section 1292(a)(1 ) appeal was not permitted from 
the denial of a motion for summary judgment re­
questing a permanent injunction because the denial 
was “ strictly a pretrial order that decides only one 
thing— that the case should go to trial.”  But the 
Court in Switzerland Cheese “ left open the question 
whether an order denying summary judgment might 
be appealable as an order denying an injunction when 
the ground for the denial was other than the exist­



10

ence of a triable issue of fact.”  Goldstein v. Cox, 
396 U.S. 471, 475 n. 2 (1970) (emphasis added).6 
Moreover, the Court in Switzerland Cheese found 
that the denial of summary judgment did not deny 
any relief, as the order did “ not settle or even tenta­
tively decide anything about the merits of the claim.” 
385 U.S. at 25. Similarly, in Baltimore Contractors 
a refusal to stay an action for an accounting pending 
arbitration was not seen as an interlocutory order 
denying injunctive relief, but was held to be merely 
“ a step in controlling the litigation before the trial 
court . . . .”  348 U.S. at 185.7 Gardner v. Westing- 
house Broadcasting Company, 98 S. Ct. 2451 (1978), 
which represents this Court’s most recent statement 
of the requisite elements of a 1292(a )(1 ) appeal, 
refused appellate jurisdiction over a challenge to a

6 In Goldstein V. Cox (cited in preceding text), the Court 
narrowed its ruling in Switzerland Cheese to make clear that 
appeals from summary judgment denials would be prohibited 
only in cases in which the denial is based upon the existence 
of a triable issue of fact. The grounds for denial in the 
instant case do not concern the existence of a fact question. 
They deal with the legality of a consent decree mandating 
preferential treatment in the employment and promotion of 
blacks absent a finding of discrimination. See also EEOC V. 
International Longshoremen’s Association, 511 F.2d 273 (5th 
Cir. 1975), at note 5, supra, which permitted appellate re­
view of a denial of a permanent injunction because, inter 
alia, the appeal dealt with a matter of law.

7 A. grant of partial summary judgment in Title VII liti­
gation was also considered nonappealable in Liberty Mutual 
Insurance Company v. Wetzel, 424 U.S. 737, 744-45 (1976), as 
the appeal was made before an actual injunction had been 
formulated. Because the order appealed in Liberty Mutual 
failed to either grant or deny injunctive relief, the Court did 
not rule on its appealability under Section 1292(a) (1).



11

pretrial order denying class certification in a Title 
VII case. The court noted that the order could be 
reviewed both prior to and after final judgment, and 
it neither affected the merits of the petitioner’s claim 
nor passed on the legal sufficiency of any requests for 
injunctive relief.

Here, unlike Gardner, the trial court’s decision 
denying pre-trial review of the order clearly turned 
upon the legal sufficiency of the proposed decree. The 
trial court cited with approval the statement in 
Myers v. Gilman Paper Corp., 544 F.2d at 854, that 
“before a court can grant any relief it must find that 
the defendants engaged in the unlawful employment 
practices alleged in the complaint.”  446 F. Supp. at 
788. The court also found that the exculpatory clause 
as to the defendants’ liability coupled with the plain­
tiff’s admission that the employer’s hiring practices 
were lawful “ does not create any factual basis upon 
which relief may be granted.”  445 F. Supp. at 789. 
It further found that the relief requested could not 
be granted because it would not apply or be limited 
to persons found to have been victims of racial dis­
crimination. Id. Thus, the first requirement for 
appealability under Gardner is clearly satisfied here.

Moreover, delaying the appeal until the conclusion 
of the trial would preclude any meaningful review of 
the district court’s ruling. The effect of the inter­
locutory order was to force the parties to go forward 
with an expensive, time-consuming trial. The court’s 
memorandum plainly demonstrates that a settlement 
will not be accepted until it is established that the 
employer and union have committed unlawful em­
ployment discrimination. Because the denial negated



12

the opportunity to resolve this case without trial, it 
was not an order that could reasonably “be reviewed 
by prior to and after final judgment.” Gardner, 
supra, 98 S. Ct. at 2453.

Denying review of such orders until after trial 
would ignore the fact that settlements are com­
promises. Here, each side agreed to sacrifice potential 
legal claims and defenses in order to resolve their 
dispute.8 Also, the employer and union, in exchange 
for a clear statement as to freedom from liability, 
agreed to make substantial changes in hiring and 
promotion practices.9

8 This Court stated in United States V. Armour & Co., 402 
U.S. 673, 681 (1971) :

Consent decrees are entered into by parties to a case 
after careful negotiation has produced agreement on 
their precise terms. The parties waive their right to 
litigate the issues involved in the case and thus save 
themselves the time, expense, and inevitable risk of liti­
gation. Naturally, the agreement reached normally em­
bodies a compromise; in exchange for the saving of cost 
and elimination of risk, the parties each give up some­
thing they might have won had they proceeded with the 
litigation.

9 As the dissent stated below:
Disclaimers of liability and disclaimers of admissions 

of legality are not uncommon in settlement agreements, 
as well as in consent decrees. A ruling that litigation 
may not be settled unless a party formally admits lia­
bility, or formally concedes legality, or a court determines 
liability or a lack thereof, would defeat the general policy 
of the law to foster settlements since the very purpose of 
a settlement is usually to avoid an adjudication or a 
concession of rights. 20 FEP Cases at 1195. (Emphasis 
supplied).



13

Once the question of liability has been decided in a 
judicial proceeding, however, it is highly unlikely that 
the parties or district court would be willing to return 
to the terms of the original consent decree. After a 
trial, any remedy must be tailored to fit the viola­
tions (if any) found by the trial court. Cf., Dayton 
Board of Education v. Brinkman, 433 U.S. 406, 417 
(1977). No party who stands to gain more from a 
trial decree than the settlement would be willing to 
accept the originally proposed terms. Moreover, it is 
doubtful that a district court has the authority after 
trial to approve a settlement not closely related to 
the precise violations found. Brinkman, supra.

It is difficult, therefore, to conceive how a post­
trial ruling by the appellate court on the propriety of 
the district court’s refusal to accept the pre-trial 
settlement agreement would be a meaningful review 
of the district court’s action. Although the court of 
appeals below may have been technically correct in 
saying that the merits of the decree can be reviewed 
following final judgment, 606 F.2d at 424, such 
a right of review would be an empty right. Treat­
ing the order as unreviewable until the conclu­
sion of the trial means, as a practical matter, that 
the parties have lost irreparably their right to settle 
the discrimination claims in a manner negating the 
need for a trial. Such a loss hardly fulfills the ob­
jective of Title VII, which is to encourage, not dis­
courage, settlements.10

10 Recognition that settlement avoids costly and protracted 
litigation undoubtedly was a strong reason for Congress’ 
emphasis upon conciliation and voluntary compliance as the 
primary means of enforcing Title VII. Although permitting



14

A prohibition against appellate review of orders 
denying pretrial settlements would also have a de­
bilitating effect on the process by which employment 
discrimination claims are settled. Obviously, there 
is greater incentive to undertake serious and often 
protracted settlement negotiations and to seek crea­
tive solutions to the issues posed if the parties can 
be reasonably certain that any question concerning 
the validity of settlement terms that they negotiate 
can be resolved quickly. If, however, district courts 
are to be given a carte blanche to circumscribe nar­
rowly the legal grounds for relief, and effective review 
of such rulings cannot be obtained until after trial, 
then:

[p] arties would be hesitant to explore the likeli­
hood of settlement apprehensive as they would be 
that the application for approval would neces­
sarily result in a judicial determination that 
there was no escape from liability or no hope 
of recovery and hence no basis for a compromise. 
Florida Trailer and Equipment Co. v. Deal, 284 
F.2d 507, 571 (5th Cir. 1960).

Many of EEAC’s members have entered into con­
sent decrees in order to avoid lengthy trials and

appeals from denials of proposed settlements would increase 
appellate litigation to some extent, in the aggregate, litigation 
would be lessened by obviating the need for a lengthy 
trial and later appellate review of both the substantive and 
remedial aspects of the district court’s findings plus the valid­
ity of the proposed decree. Permitting appeals of such orders, 
therefore, is consistent with this Court’s concern for the 
effect on the courts’ dockets of permitting interlocutory ap­
peals. See Baltimore Contractors v. Bodinger, 348 U.S. 176, 
181-82 (1955) ; and Coopers & Lybrand v. Livesay, 98 S. Ct. 
2454, 2463 (1977).



15

protracted litigation. Pursuant to these decrees, 
thousands of alleged discriminatees have received 
compensation and other remedies much more quickly 
than if they had been required to await the end of a 
lengthy trial and then an appeal of both an earlier 
denial of a proposed settlement and the trial pro­
ceedings. The importance of settlement to the en­
forcement of Title VII rights was described vividly 
by Judge Higginbotham in his opinion in Commons- 
wealth of Pennsylvania v. Local Union 5^2, Int’l 
Union of Operating Engineers, No. 71-2698 (E.D. 
Pa.), order dated November 7, 1979, No. 223, Daily 
Labor Report, November 16, 1979, pp. D -l through 
D-2:

Tragically, the parties were once again unable 
to settle the case even though I made specific 
recommendations on dollar amounts and injunc­
tive relief. One side was willing to accept my 
recommendation but the other side made, in my 
view, such an unrealistic demand that the class 
plaintiffs’ cupboard will again be barren— except 
for the gratification that their counsel will be 
arguing refined, sophisticated legal doctrines 
about damages which they hope to collect years 
from now.

*  *  *

[A ] t the damage phase, all counsel must come 
to grips with the reality that it is often easier 
to litigate acrimoniously and protractedly than 
it is to use creative efforts in attempts to con­
structively terminate litigation. In the final anal­
ysis, the brilliant briefs of counsel, the flash of 
eloquent arguments, the citations in the future 
to their case as significant precedent, and even 
the drama of a packed courtroom will never be



16

adequate mementos for the victims of discrimina­
tion who desire money and jobs now. Similarly, 
protracted litigation does not aid the defendants 
who at this stage must recognize that it is far 
better to conclude litigation with liability and 
responsibilities being defined now, than to wallow 
endlessly in a quagmire of unresolved disputes—  
as lawyers are kept busy litigating, and operat­
ing engineers and their employers are kept con­
fused by the unending process.

The decision below would disrupt the settlement 
process, increase litigation in complex cases and pro­
long final determinations of the rights and obligations 
of all parties in a manner that is directly contrary to 
the intent of Congress and the purposes of Title VII.

B. The Order Refusing Entry Of The Consent Decree Is
Appealable As A  Collateral Order Under 28 U.S.C.
§ 1291.

28 U.S.C. § 129111 provides for appeal “ from all 
final decisions of the district courts,”  except when 
direct appeal may be brought to this Court. Appel­
late courts have been cautioned, however, not to apply 
the finality requirement of the statute rigidly, but to 
give it a “practical rather than a technical construc­
tion.” Cohen v. Beneficial Industrial Loan Corp., 337 
U.S. 541 (1949); Eisen v. Carlisle & Jacquelin, 417 
U.S. 156, 172 (1974). Accordingly, a decision ap­

11 The section provides:
The courts of appeals shall have jurisdiction of ap­

peals from all final decisions of the district courts of the 
United States, the United States District Court for the 
District of the Canal Zone, the Disrict Court o f Guam, 
and the District Court of the Virgin Islands, except 
where a direct review may be had in the Supreme Court.



17

pealable under Section 1291 falls into one of two 
categories. Either it “ ends the litigation on the merits 
and leaves nothing for the court to do but execute 
the judgment . . .,”  Catlin v. United States, 324 
U.S. 229, 233 (1945), or it is final as to some col­
lateral matter.12 Cohen, supra, 337 U.S. 541, 546. 
Appealable collateral orders were described in Cohen 
as those which:

finally determine claims of right separable from, 
and collateral to, rights asserted in the action, 
too important to be denied review and too inde­
pendent of the cause itself to require that appel­
late consideration be deferred until the whole 
case is adjudicated. 337 U.S. at 546.

For these reasons, the Cohen court held that an order 
in a shareholder’s derivative suit which refused to 
require the plaintiff to post security for costs as 
required by state law was directly appealable as a 
matter collateral to the plaintiff’s cause of action. 
Because it was questionable whether the plaintiffs 
had the financial resources to post security, appellate 
review would be determinative as to whether the case 
could go forward at all. Obviously, if this question 
had not been reviewed until after the trial, effective 
review would have been denied. As one commentator 
has pointed out:

There are frequent situations in which prompt 
review is urgent. Reversal of some interlocutory 
orders will terminate litigation . . ., thereby

12 An order is collateral if it “ is a separate and independent 
matter, anterior to the merits and not enmeshed in the factual 
and legal issues comprising the plaintiff’s cause o f action.” 
Mercantile National Bank at Dallas V. Langdeau, 371 U.S. 
444, 558 (1963).



18

eliminating needless proceedings in the lower 
court. Note, 75 Harv. L. Rev. 351, 352 (1961).

Accordingly, this Court has permitted appellate 
jurisdiction to be taken over interlocutory orders 
that are “ fundamental to the further conduct of the 
case.” Gillespie v. United States Steel Corporation, 
379 U.S. 148, 153 (1964), quoting Land v. Dollar, 
330 U.S. 731, 734, n.2 (1947). A  Jones Act case, 
Gillespie dealt with a district court order striking 
both portions of the complaint adding claims under 
state law and all references to recovery for the benefit 
of relatives of the decedent other than his mother. 
When the court refused to certify its order for inter­
locutory appeal under 28 U.S.C. 1292(b), the plain­
tiff sought and was given appellate review as a 
matter of right.

We cannot say that the Court of Appeals chose 
wrongly under the circumstances. And it seems 
clear now that the case is before us that the 
eventual costs, as all the parties recognize, will 
certainly be less if  we now pass on the questions 
presented here rather than send the case back 
with those issues undecided. Moreover, delay of 
perhaps a number of years in having the 
brother’s and sisters’ rights determined might 
work a great injustice on them, since the claims 
for recovery for their benefit have been effec­
tively cut off so long as the District Judge’s 
ruling stands. 379 U.S. at 153.

An interlocutory order was also held appealable in 
Eisen v. Carlisle & Jacquelin, supra, 417 U.S. 156, 
which involved a class action brought by odd-lot 
traders against a stock exchange alleging violation of 
antitrust and securities laws. At issue was whether



19

the court of appeals “had, jurisdiction to review the 
District Court’s orders permitting the suit to proceed 
as a class action and allocating the cost of notice.” 
Id. at 169. Finding the case to be controlled by 
Cohen, the question was answered in the affirmative 
as the district court’s ruling was found to have con­
clusively rejected claims that involved a collateral 
matter unrelated to the merits:

In our view the Court of Appeals . . . had juris­
diction to review fully the District Court’s reso­
lution of the class action notice problems in this 
case, for that court’s allocation of 90% of the 
notice costs to respondents was but one aspect of 
its effort to construe the requirements of Rule 
2 3 (c )(2 )  in a way that would permit petition­
er’s suit to proceed as a class action. Id. at 172 
(footnotes omitted) .1S

The test for determining whether an order comes 
within the collateral order doctrine was recently re­
stated in Coopers & Lybrand v. Livesay, 98 S. Ct. 
2454 (1978): the order must conclusively determine 
the disputed question, resolve an important issue com­
pletely separate from the merits of the action, and be 
effectively unreviewable on appeal from a final judg­
ment. The Livesay court concluded that an order 
passing on a request for class certification did not 
fall within the definition of appealable collateral 
orders. According to the opinion, because the class 13

13 Two years later, appellate review was denied a ruling on 
the plaintiff’s motion for a partial summary judgment as to 
the defendant’s liability in a sex discrimination case. Liberty 
Mutual Insurance Company v. Wetzel, 424 U.S. 737, 744 
(1976). Because the plaintiff’s initial claims for relief had 
been left unresolved, the requisite element of finality was 
found to be missing.



20

determination involved considerations enmeshed in the 
factual and legal issues comprising the plaintiff’s 
cause of action, the order was subject to revision by 
the district court and effective review would be avail­
able after final judgment. 98 S. Ct. at 2458.

Norman v. McKee, 431 F.2d 769 (9th Cir. 1970), 
cert, denied, 401 U.S. 912 (1971), applied the cri­
teria developed in Cohen and its progeny to a deter­
mination of whether the disapproval of a proposed 
settlement is an appealable collateral order. In that 
case the Court of Appeals for the Ninth Circuit was 
asked to assert jurisdiction over a trial court order 
refusing to accept a proposed settlement of a class 
action charging the directors, officers and managers 
of a securities fund with violations of the Investment 
Company Act. Granting jurisdiction, the court con­
cluded that:

the order disapproving the proposed settlement is 
a collateral order. The proposed settlement is 
independent of the merits of the case. It would 
not merge in final judgment. Disapproval of the 
settlement is not a step toward final disposition 
and it is not in any sense an ingredient of the 
cause of action. In itself, the district judge’s 
order is final on the question of whether the pro­
posed settlement should be given judicial ap­
proval. 431 F.2d at 773.14

14 A different result was reached in Seigal v. Merrick, 590 
F.2d 35 (2d Cir. 1978), which held that the disapproval of a 
settlement; in a stockholder’s derivative suit was not appeal- 
able as a collateral order under Section 1291. While viewing 
such a denial as the equivalent of a denial of a summary 
judgment or the grant o f a new trial which have been held 
nonappealable, the court did acknowledge that the refusal was 
final in the sense that “ that particular settlement will never 
be revived.”  Id. at 38 (emphasis in original).



21

Applying the above criteria to the instant case, it 
is clear that jurisdiction should have been granted 
below. First, the order conclusively determined a 
disputed question that was competely separate from 
the merits of the action, i.e., the legal validity of a 
proposed settlement apart and separate from a trial 
determination of the merits of plaintiffs’ claims. 
Second, the suit alleged violations of statutes and 
constitutional prohibitions forbidding employment dis­
crimination. In contrast, the order from which the 
appeal is sought dealt with the question of whether a 
district court may grant injunctive relief containing 
specific employment quotas based on race without a 
conclusive determination having been made as to the 
employer’s liability. The question on appeal is not 
one that is likely to arise during the course of a trial 
on the plaintiff’s claims. Finally, the order is effec­
tively unreviewable on appeal from a final judgment. 
As discussed above, the parties would have little, if 
any, incentive at the conclusion of a trial in which 
liability was established to seek judicial permission 
to reenter an agreement reached through disclaimers 
of liability.16 15

15 See, pp. 11-14, supra.



22

CONCLUSION

For the foregoing reasons, the Equal Employment 
Advisory Council respectfully submits that the de­
cision of the Court of Appeals for the Fourth Circuit 
refusing to assert appellate jurisdiction under 28 
U.S.C. §1291 and 1292(a) (1) over a challenge to 
the district court’s order refusing entry of the con­
sent decree should be reversed.

Respectfully submitted,

Robert E. W illiams 
Douglas S. McDowell 
Jeffrey C. McGuiness 

McGuiness & W illiams 
1015 Fifteenth Street, N.W. 
Suite 1200
Washington, D.C. 20005 
(202) 789-8600

September 2,1980