Martin v Wilks Brief Amicus Curiae in Support of Petitioners

    Nos. 87-1614, 87-1639 and 87-1668

In  T he

dmtri nf tty llnitTfr l^tate
October T erm , 1988

J ohn  W . Martin , et al.,
Petitioners,

R obert K. W ilk s , et al.,
_________ Respondents.

On Writ of Certiorari to the
United States Court of Appeals for the Eleventh Circuit

BRIEF AMICI CURIAE OF NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC., WOMEN’S LEGAL 

DEFENSE FUND, NATIONAL WOMEN’S LAW  CENTER, 
AND INTERNATIONAL ASSOCIATION OF 
BLACK PROFESSIONAL FIREFIGHTERS 

IN SUPPORT OF PETITIONERS

Of Counsel:
Barry L. Goldstein 
NAACP Legal Defense & 

Educational Fund, Inc . 
Suite 301 
1275 K Street 
Washington, D.C. 20005
Julius LeVonne Chambers 
Ronald L. Ellis 
NAACP Legal Defense & 

Educational Fund, Inc. 
Suite 1600 
99 Hudson Street 
New York, New York 10013

N. T hompson Powers 
Ronald S. Cooper 

(Counsel of Record)
Janice Barber 
Steptoe & Johnson 
1330 Connecticut Avenue, N.W. 
Washington, D.C. 20036 
(202) 429-3000 
Attorneys for Amici Curiae 

NAACP Legal Defense & 
Educational Fund, Inc., 
Women’s Legal Defense 
Fund, National Women’s 
Law Center, and Inter­
national Association of 
Black Professional 
Firefighters

(Counsel Continued on Inside Cover)
August 18, 1988

W ilson  -  Epes Printing Co . ,  In c . - 7 8 9 -0 0 9 6  - W a s h in g t o n , D .C . 2 0 0 0 1



Of Counsel:
Claudia W ithers
W omen ’s Legal Defense Fund
2000 P Street, N.W.
Washington, D.C. 20036
Marcia D. Greenberger 
Brenda Smith
National W omen ’s Law Center 
Suite 100
1616 P Street, N.W.
Washington, D.C. 20036
W illiam C. McNeill, III 
Eva Jefferson Paterson 
301 Mission Street 
Suite 400
San Francisco, California 94105 
Attorneys for International 

Association of Black 
Professional Firefighters



TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE___ ________ __  1

STATEMENT ............ — ......................................... ............  6

ARGUMENT_________ ___ ___________ __ ______ _______  10

I. THE DECISION BELOW WILL FRUSTRATE
THE GOALS OF TITLE VII AND IMPAIR 
EFFICIENT OPERATION OF THE JUDI­
CIAL SYSTEM ................................................ ........ 11

A. The Decision Below Undermines Incentives
to Settle Title VII Litigation...... ......... .......... . 14

B. The Decision Below Would Produce Repeti­
tive, Duplicative Litigation ____________ __ _ 15

II. REQUIRING INTERVENTION IS THE ONLY
PRACTICAL MEANS TO ACCOMMODATE 
THE INTERESTS OF THIRD PARTIES 
WHILE PRESERVING THE VIABILITY OF 
THE CONSENT DECREE PROCESS...............  19

Page

TABLE OF AU TH ORITIES-________________________  ii

CONCLUSION 28



11

TABLE OF AUTHORITIES
CASES: Page

Alexander v. Bahou, 86 F.R.D. 194 (N.D.N.Y.
1980) ____________       13

Alexander v. Gardner-Denver Co., 415 U.S. 36
(1974) ________      12

Bergh v. Washington, 535 F.2d 505 (9th Cir.),
cert, denied, 429 U.S. 921 (1976) ........................  17

Brown v. Felsen, 442 U.S. 127 (1979).....................  19
Culbreath v. Dukakis, 630 F.2d 15 (1st Cir. 1980).. 9
Dennison v. Los Angeles Department of Water &

Poiver, 658 F.2d 694 (9th Cir. 1981).................... 9, 17
Detroit Police Officers Association v. Young, 824

F.2d 512 (6th Cir. 1987)_____________ ____ ___ _ 19
Eggleston v. Chicago Journeymen Plumbers, 657 

F.2d 890 (7th Cir. 1981), cert, denied, 455 U.S.
1017 (1982) ______ _________ __ ________________  20

English v. Seaboard Coast Line Railroad, 465 F.2d
43 (5th Cir. 1972)_______ __________________ _ 16

Ford Motor Co. v. EEOC, 458 U.S. 219 (1982).... 12
Franks v. Bowman Transportation Co., 424 U.S.

747 (1976 )_________________________ _______ _ 11
Goins v. Bethlehem Steel Corp., 657 F.2d 62 (4th

Cir. 1981), cert, denied, 455 U.S. 940 (1982).... 9, 17
Grubb v. Public Utility Commission, 281 U.S. 470

(1930) _______ ____ _____ __ _______ ____________ 19
Hansberry v. Lee, 311 U.S. 32 (1940) _______ ___  22
Henson v. East Lincoln Township, 814 F.2d 410 

(7th Cir. 1987), cert, granted, 108 S. Ct. 691
(1988) _____________ __ _________ _____ ________  21

International Brotherhood of Teamsters v. United
States, 431 U.S. 324 (1977) ................... ...............  11, 12

Johnson v. Transportation Agency, Santa Clara
County, 107 S. Ct. 1442 (1987).............................  14

Kelly v. Kosuga, 358 U.S. 516 (1959)....... ........ 13
Kirkland v. New York State Department of Cor­

rectional Services, 520 F.2d 420 (2d Cir. 1975), 
cert, denied, 429 U.S. 823 (1976)............... ..........  16



I l l

TABLE OF AUTHORITIES— Continued
Page

Kline v. Coldwell, Banker & Co., 508 F.2d 226 
(9th Cir. 1974), cert, denied, 421 U.S. 963
(1975) ...... ................ ............... ....... ........................... 22

Kremer v. Chemical Construction Corp., 456 U.S.
461 (1982) .... ..................... ......... ......... ......... ..........  19

LaMar v. H&B Novelty & Loan Co., 489 F.2d 461
(9th Cir. 1978).......................................... ........... . 22

Local 28, Sheet Metal Workers v. EEOC, 478 U.S.
421 (1986) _______ ____________________________  7

Local 93, Firefighters v. City of Cleveland, 106
S. Ct. 3063 (1986) ................... .................. ........  11

Marcera v. Chinlund, 595 F.2d 1231, 1238 (2d 
Cir.), vacated on other grounds sub. nom.
Lombard v. Marcera, 442 U.S. 915 (1979)........  21

Marino v. Ortiz, 806 F.2d 1144 (2d Cir. 1986),
aff’d, 108 S. Ct. 586 (1988 )__ _________________  9

Mudd v. Basse, 68 F.R.D. 522 (N.D. Ind. 1975), 
aff’d mem., 582 F.2d 1283 (7th Cir. 1978), cert.
denied, 439 U.S. 1078 (1979) __________________  22

Nevada v. United States, 463 U.S. 110 (1983).... 18
New York State Association for Retarded Chil­

dren v. Carey, 438 F. Supp. 440 (E.D.N.Y.
1977) _____ _______ _______ ____ ______ ______ _____ 23

O’Burn v. Shapp, 70 F.R.D. 549 (E.D. Pa.), aff’d 
mem., 546 F.2d 417 (3d Cir. 1976), cert, denied,
430 U.S. 968 (1977) ___________________________  17

Paxman v. Campbell, 612 F.2d 848 (4th Cir.
1980) (en banc), cert, denied, 449 U.S. 1129
(1981) ........ ........ ............................. ........... ........... . 21

Romain v. Kuret, 772 F.2d 281 (6th Cir. 1985).... 20
Spangler v. Pasadena City Board of Education,

611 F.2d 1239 (9th Cir. 1979)...... ....................... 13
Stotts v. Memphis Fire Department, 679 F.2d 541 

(6th Cir. 1982), rev’d on other grounds sub nom. 
Firefighters Local Union No. 17 8 U v. Stotts,
467 U.S. 561 (1984) _______ ______ ____________  17

Striff v. Mason, 849 F.2d 240 (6th Cir. 1988).... 9



IV

TABLE OF AUTHORITIES— Continued
Page

Thaggard v. City of Jackson, 687 F.2d 66 (5th
Cir. 1982), cert, denied, 464 U.S. 900 (1983).... 9,17 

Thompson v. Board of Education, 709 F.2d 1200
(6th Cir. 1983) ........................ ...............................  21

United States v. Allegheny-Ludlum Industries,
517 F.2d 826 (5th Cir. 1975), cert, denied, 425
U.S. 944 (1976) ............. ........................................ 12

United States v. City of Miami, 664 F.2d 435 (5th
Cir. 1981) (en b a n c)............... ..... ................ ......... . 13

United States v. City of Philadelphia, 499 F.
Supp. 1196 (E.D. Pa. 1980) ...... ............................ 13

United States v. Paradise, 480 U.S. 149 (1987).... 7
United Steelworkers v. Weber, 443 U.S. 193

(1979) .................. .......... ............................. .......... 11, 14, 17
Way v. Mueller Brass Co., 840 F.2d 303 (5th Cir.

1988)....... ............. ...... .......................... ........ ..............  20
Weiner v. Bank of King of Prussia, 358 F. Supp.

684 (E.D. Pa. 1973).......................................... ...... 22
Williams v. City of New Orleans, 543 F. Supp. 662

(E.D. La. ) ,r e v ’d, 694 F.2d 987 (5th Cir. 1982).. 13
Williams v. City of New Orleans, 694 F.2d 987 (5th

Cir. 1982)................................................................... . 13
W.R. Grace & Co. v. Local 759, International 

Union of the United Rubber, Cork, Linoleum &
Plastic Workers of America, 461 U.S. 757 
(1983) _____ ______ ______ __ ______________ ___ _ 11

MISCELLANEOUS:

1987 Annual Report o f the Director of the Ad­
ministrative Office of the United States Courts.. 12 

Note, Certification of Defendant Classes Under
Ride 2 3 (b )(2 ), 1984 Colum. L. Rev. 1371........... 21,22

Schwarzschild, Public Law by Private Bargain:
Title VII Consent Decrees and the Fairness of 
Negotiated Institutional Reform, 1984 Duke L.
Rev. 887 12



V

Page
Williams, Some Defendants Have Class: Reflec­

TABLE OF AUTHORITIES— Continued

tions on the GAP Securities Litigation, 89 F.R.D.
287 (1981) ______ _____________ ______ __________ 22

18 C. Wright, A. Miller, & E. Cooper, Federal
Practice & Procedure, § 4451 (1981) ..................  18

7A C. Wright, A. Miller & M. Kane, Federal Prac­
tice & Procedure, § 1770 (1986) ....... ......... ....... 22

Wolfson, Defendant Class Actions, 88 Ohio St.
L.J. 459 (1977 )...................... ..................................  22



In The

dkmxt nt tl}i> luitrxi g»tate
October Term, 1988

Nos. 87-1614, 87-1639 and 87-1668

John W. Martin, et al,
Petitioners,

v.

Robert K. W ilks, et al.,
Respondents.

On Writ of Certiorari to the
United States Court of Appeals for the Eleventh Circuit

BRIEF AMICI CURIAE  OF NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC., WOMEN’S LEGAL 

DEFENSE FUND, NATIONAL WOMEN’S LAW CENTER, 
AND INTERNATIONAL ASSOCIATION OF 
BLACK PROFESSIONAL FIREFIGHTERS 

IN SUPPORT OF PETITIONERS

This brief in support of petitioners is submitted with 
the written consent of counsel to all parties filed with the 
Clerk of the Court.

INTEREST OF THE AMICI CURIAE

The NAACP Legal Defense and Educational Fund, 
Inc., ( “ LDF” ) is a non-profit corporation whose prin­



2

cipal purpose is to secure the civil and constitutional 
rights of black persons through litigation and education. 
For more than forty years, its attorneys have repre­
sented parties in thousands of civil rights cases, includ­
ing many significant employment discrimination cases. 
See, e.g., Bazemore v. Friday, 478 U.S. 385 (1986) ; 
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); 
Griggs v. Duke Power Co., 401 U.S. 424 (1971).

The issue presented here is particularly important to 
the LDF’s litigation efforts. First, the LDF has litigated 
many complex class action employment cases, and, with 
few exceptions, has entered into consent decrees that 
have contained the final remedies for the plaintiff class. 
For example, after trial and review by the court of ap­
peals and this Court, the LDF entered into consent de­
crees that resolved both the Griggs and Albemarle Paper 
cases. If consent decrees in fair employment cases may 
routinely be challenged by collateral attack as the court 
below permitted in this case, the LDF will be unable to 
rely on the use of such decrees to secure fair employment 
remedies.

Second, the decision below threatens severely to under­
cut the ability of the LDF and other civil rights groups 
to bring fair employment actions. The LDF litigates 
claims on minority employees’ behalf on a pro bono basis, 
and resources available to fund that litigation are lim­
ited. Settlement of cases is therefore an essential means 
of maximizing the LDF’s effectiveness, allowing it to 
provide services to more employees and other civil ̂ rights 
plaintiffs. If the LDF is forced to litigate every case to 
conclusion or to face the repeated challenges to consent 
decrees that the decision below promises, its effectiveness 
clearly will be diluted. Without the incentives to settle­
ment that are jeopardized by the decision below, many of 
the important fair employment gains of the last two 
decades could not have been achieved.



3

Third, the LDF has repeatedly represented plaintiffs 
challenging civil rights violations in the City of Birming­
ham. That litigation has vindicated the right to demon­
strate against racial discrimination,1 the right to inte­
grated transportation,2 * the right to equal educational op­
portunity,8 the right to non-diseriminatory zoning,4 the 
right to fair employment,5 6 and the right to a nondis- 
criminatory statute governing the personnel system.11' 
Having spent four decades challenging discriminatory 
practices in Birmingham, it is important for the LDF to 
support the effective action taken by Birmingham to rem­
edy the continuing effects of an unfortunate history of 
racial discrimination.

* * * *
The Women’s Legal Defense Fund ( “ WLDF” ) is a 

non-profit, tax-exempt membership organization, founded 
in 1971 to provide pro bono legal assistance to individuals 
who have been discriminated against on the basis of sex. 
WLDF devotes a major portion of its resources to 
combatting sex discrimination in employment through 
pro bono litigation of significant employment discrimina­
tion cases, operation of an employment discrimination 
counseling program, public education, and advocacy be­
fore the Equal Employment Opportunity Commission and

1 Shuttle-worth v. City of Birmingham, 394 U.S. 147 (1969); 
Walker v. Birmingham, 388 U.S. 307 (1967).

2 Bowman v. Birmingham Transit Co., 280 F.2d 531 (5th Cir. 
1960).

8 Armstrong v. Board of Education, 333 F.2d 47 (5th Cir. 1964).

4 City of Birmingham v. Monk, 185 F.2d 859 (5th Cir. 1950), 
cert, denied, 341 U.S. 940 (1951).

5 James v. Stockham Valves & Fittings, Inc., 559 F.2d 310 (5th 
Cir. 1977), cert, denied, 434 U.S. 1034 (1978); Pettway v. America?i 
Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974).

6 Woods v. Florence, No. CY 82-PT-2272-S (N.D. Ala. Jan. 31, 
1988).



4

other federal and local agencies that are charged with 
enforcement of equal opportunity laws.

WLDF has represented numerous plaintiffs in employ­
ment discrimination actions brought pursuant to Title 
VII of the Civil Rights Act of 1964, and thus recognizes 
the importance of resolving such cases without resort to 
extended litigation. For example, in 1987 WLDF resolved 
LaPlace v. Ridgeivells Caterers, a case in which it pro­
vided pro bono representation to more than 500 wait­
resses who alleged occupational segregation and sex-based 
wage discrimination. As a result of the settlement ob­
tained in that case, men and women will be assigned to 
jobs and paid without regard to sex, and a class of wait­
resses will be provided back-pay.

Consent decrees have been relied on as an effective 
means of resolving complex litigation in ways that benefit 
employers and employees. A decision by this Court in­
creasing the vulnerability of consent decrees would under­
mine the enforcement of Title VII and negate the em­
ployment gains achieved by women and people of color 
in this country.

*  *  *  *

The National Women’s Law Center ( “ NWLC” ) is a 
non-profit legal advocacy organization dedicated to the 
advancement and protection of women’s rights and the 
corresponding elimination of sex discrimination from all 
facets of American life. Since 1972, the Center has 
worked to secure equal opportunity in the workplace 
through the full enforcement of Title VII of the Civil 
Rights Act of 1964, as amended, and other civil rights 
statutes, and through the implementation of effective 
remedies for long-standing discrimination against women 
and minorities.7

7 NWLC has participated as an amicus curiae in Title VII cases 
before the Supreme Court, including Johnson v. Transportation 
Agency, Santa Clara County California, 107 S. Ct. 1442 (1987);



5

Consent decrees have proven to be one of the most ef­
fective remedies for the eradication of discrimination 
against women and minorities. The issue presented in 
this case, the ability of third parties to attack consent 
decrees collaterally, is therefore of critical importance to 
the National Women’s Law Center and other civil rights 
organizations who view consent decrees as an effective 
and indeed desired method of resolving complex cases in­
volving violations of civil rights. NWLC is currently rep­
resenting parties to several consent decrees resolving long­
standing discrimination claims, and has seen firsthand 
the major advances in the elimination of discrimination 
resulting from these decrees.® Absent the entry of consent 
decrees in these cases it is certain that both sides would 
have expended a great deal more time and resources, 
thereby diluting their overall litigation and enforcement 
efforts in these areas. It is also certain that the rights 
and responsibilities of the parties would have been re­
solved much less expeditiously. A ruling by this Court, 
like that entered by the court below, allowing collateral 
attacks on consent decrees would diminish the efficacy of 
consent decrees as a method of promoting the resolution 8

Hishon v. King & Spaulding, 467 U.S. 69 (1984); Hopkins v. Price 
Waterhouse, 825 F.2d 458 (D.C. 1987), cert, granted, 108 S. Ct, 1106 
(1988).

8 See Haffer v. Temple University, No. 80-1362 (E.D. Pa. June 13, 
1988) (order tentatively approving proposed settlement in class 
action sex-discrimination challenge of intercollegiate athletic pro­
gram) ; Adams v. Califano, No. 3095-70, WEAL v. Califano, No. 74- 
1720 (D.D.C. Dec. 29, 1977) (consent decree resolving Department 
of Labor and Department of Education’s obligations for enforce­
ment of Title IX and Executive Order 11246), dismissed sub nom. 
Adams v. Bennett, 675 F. Supp. 668 (D.D.C. 1987), appeal docketed, 
WEAL v. Bennett, No. 88-5065 (D.C. Cir. Mar. 3, 1988); Advocates 
for Women v. Marshall, No. 76-0862, Women Working in Construc­
tion v. Marshall, No. 76-527 (D.D.C. Dec. 5, 1978) (consent decree 
requiring federal construction contractors to take specific affirma­
tive action steps for women, including goals and timetables).



6

of complex cases and would discourage organizations and 
individuals represented by NWLC from entering into 
consent decrees.

The ruling below significantly impedes the ability of 
NWLC and other public interest groups to litigate fair 
employment actions. Our work is done on a pro bono 
basis. The extent to which we are able to bring cases is 
directly related to our ability to resolve others. Settle­
ment of these cases through consent decrees is, therefore, 
essential to our efforts to assist other women in securing 
and enforcing their rights'.

*  *  -X- *

The International Association of Black Professional
Firefighters was founded in Hartford, Connecticut, in 
October 1970. The Association promotes interracial prog­
ress throughout fire departments in the United States 
by advocating the promotion and hiring of black fire­
fighters. Many of the local chapters of the Association 
are actively involved in the enforcement of consent de­
crees aimed at full desegregation of the fire service. Ac­
cordingly, the continued viability of consent decrees for 
resolution of fair employment disputes is of significant 
concern to the Association.

STATEMENT

Amici adopt the statement of facts set forth in the 
brief of Petitioners Martin, et al. Amici limit their fac­
tual statement to the uncontested facts that are partic­
ularly significant to their position in this brief.

The employment practices of the City of Birmingham 
were the subject of contentious litigation for more than 
eight years prior to the filing of the first of these actions 
in 1982. The federal government, the NAACP, and 
classes of minority applicants and employees alleged dis­
crimination in virtually every branch of city employment 
and demanded a reversal of the city’s long and infamous



7

history of racial discrimination.9 10 Their claims— and the 
two resulting trials— were the subject of prominent and 
continuous press coverage that made the case notorious in 
the community.19

Respondents do not dispute that they had actual knowl­
edge of the litigation from its early stages in 1974. In­
deed, the Eleventh Circuit determined that respondents 
“knew at an early stage in the proceedings that their 
rights could be adversely affected” if petitioners pre­
vailed. United States v. Jefferson County, 720 F.2d 1511, 
1516 (11th Cir. 1983). Members of the Birmingham 
Firefighters Association (“BFA” ) continually monitored 
the case and consulted with the Personnel Board regard­
ing the litigation’s impact on the interests of non­
minority employees. Joint Appendix (“J.A.” ) 772-73. 
Those contacts with parties to the case were maintained 
throughout the course of the litigation. Id. at 773.

In May 1981, the parties negotiated consent decrees 
designed to resolve all outstanding claims of discrimina­
tion on the basis of race or sex. As an element of those 
decrees, the parties established a process for providing 
notice to all interested persons. Appendix to the Petitions

9 That history is recounted in the brief of petitioners Martin, 
et al. Amici submit that the facts of this case are no less extreme 
than those that this Court found to warrant extraordinary court- 
ordered relief in Local 28, Sheet Metal Workers v. EEOC, 478 U.S. 
421 (1986), and United States v. Paradise, 480 U.S. 149 (1987).

10 See, e.g., Birmingham News, Jan. 4, 1974, at 1; id. May 27, 1975, 
at 1; id. Dec. 20, 1976, at 14; id. Dec. 21, 1976, at 43; id. Jan. 10, 
1977, at 1; Birmingham Post-Herald, May 9, 1980, at 1. The first 
trial, held in 1976, involved the legality of exams given applicants 
for the police and fire departments. It resulted in a judgment for 
plaintiffs that was affirmed by the Fifth Circuit. Ensley Branch of 
the NAACP v. Seibels, 14 Fair Empl. Prac. Cases (BNA) 670 (N.D. 
Ala. 1977), aff’d, 616 F.2d 812 (5th Cir.), cert, denied, 449 U.S. 1061 
(1980). The 1979 trial, involving other hiring and promotional 
practices, did not produce a judgment prior to entry of the consent 
decrees.



8

for Certiorari (“ Pet. App.” ) 146a-47a; J.A. 697. That 
process provided nearly two months’ notice of the sched­
uled fairness hearing and advised interested parties of 
their right to object to the decrees. Pet. App. 146a-47a. 
Notices were published in two local newspapers and also 
served by mail on class members. Id. at 146a.

Following this notice process, the district court held 
a fairness hearing at which it received oral and written 
testimony and considered the objections of a number of 
persons to the terms or legality of the consent decrees. 
J.A. 727. Several non-minority employees, as well as 
representatives of the BFA, appeared at the fairness 
hearing to present their objections. Pet. App. 238a-39a. 
They asserted that the court could not approve a settle­
ment providing “ for affirmative relief for blacks and 
females which [would] adversely discriminate against 
whites and males without a judicial finding of actual dis­
crimination.” J.A. 704.11

The district court gave all objectors a full opportunity 
to present their claims and to submit relevant evidence. 
Id. at 727-28, 770. It then considered and rejected those 
objections in a careful and thorough opinion. Pet. App. 
236a.

A scant eight months later respondents filed the first 
of these reverse discrimination actions in reaction to the 
very first fire department promotion made pursuant to 
the consent decree. The complaint in that case, Bennett 
v. Arrington, alleged that the city and the personnel 
board, acting pursuant to the consent decrees, were im­
permissibly certifying candidates and making promo­
tions on the basis of race. Id. at 113a. It alleged that

11 According to the objectors, such discrimination would consti­
tute a violation of Title VII, 42 U.S.C. § 2000e-2(j). J.A. 705, 711- 
12. The objectors further argued that the provisions of the decrees 
specifying goals based on race and sex “constitute state actions 
which deny equal protection of law,” and that for that reason the 
court should withhold its approval. J.A. 780.



9

race- or sex-conscious decisions were illegal and the con­
sent decree was “ void on its face.” Id. at 113a-115a.12 * 
Respondents subsequently filed two additional complaints, 
both challenging actions taken by the city in compliance 
with the consent decree. J.A. 93, 130. Those com­
plaints essentially constituted a restatement of objections 
considered at the fairness hearing, and the district court 
held that respondents were precluded from challenging 
the validity of the consent decree. Pet, App. 106a.18

The United States Court of Appeals for the Eleventh 
Circuit reversed in a sharp departure from the position 
uniformly adopted by other courts of appeals,14 The 
court below authorized collateral attacks on the consent 
decrees, adopting a broad rule that is completely unjusti­
fied by the facts of this case. Indeed, the sweeping effect 
of the Eleventh Circuit’s holding is underscored because 
respondents had actual notice of the pendency of the pro­

12 The Bennett plaintiffs further alleged that the race- and sex­
conscious provisions of the decree conflicted with various state and 
local authorities, including Title VII and 42 U.S.C. § 1981, as well as 
the fifth and fourteenth amendments. Pet. App. 113a.

is while declining to permit respondents to relitigate the validity 
of the consent decree, Judge Pointer nevertheless expressly reaf­
firmed his earlier ruling that the decree “ is a proper remedial device, 
designed to overcome the effects of prior, illegal discrimination by 
the City of Birmingham.” Pet. App. at 106a. Having thus addressed 
the issue of the decree’s validity, the court then ruled on the merits 
of respondents’ reverse discrimination claims, rejecting them for 
failure to prove discriminatory intent. Id. at 107a. As petitioners 
Martin, et al., demonstrate in their brief, that decision fully and 
correctly disposed of the merits of respondents’ claims.

14 See, e.g., Striff v. Mason, 849 F.2d 240 (6th Cir. 1988); Marino 
v. Ortiz, 806 F.2d 1144 (2d Cir. 1986), aff’d, 108 S. Ct. 586 (1988) ; 
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); 
Dennison v. Los Angeles Department 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) ; see also Culbreath 
v. Dukakis, 630 F.2d 15 (1st Cir. 1980).



10

ceeding, had opportunities to participate in it, and had 
their views represented at the fairness hearing by in­
dividuals pressing legal contentions virtually identical to 
those raised in respondents’ subsequent suits.15

ARGUMENT

Since the enactment of Title VII in 1964, consent de­
crees have played a central role in the resolution of fair 
employment disputes. To the benefit of both litigants 
and the federal courts, consent decrees have provided a 
vehicle for terminating disputes without extended litiga­
tion, enabling the parties to develop productive working 
relationships under cooperatively designed guidelines.

The decision below authorizes collateral attacks on con­
sent decrees by persons who knew of the proceedings, 
who had a timely opportunity to intervene, whose inter­
ests were protected by a fairness hearing, and whose 
position was considered by the decree court. If collateral 
attacks were permitted in such circumstances, consent 
decrees would no longer be the end to Title VII litiga­
tion, but the beginning of a protracted process in which 
the parties could be compelled to litigate every employ­
ment action taken under the decree. That result would 
nullify the multiple benefits of consent decrees and 
thrust onerous burdens upon the courts because parties 
would reject decrees as an alternative to continued liti­
gation.

The adverse impact of the Eleventh Circuit’s rule 
would not be limited to the Weber-type relief approved in

15 In addition to the opportunity to present their views at the 
fairness hearing, respondents undoubtedly could have sought timely 
intervention as parties, Instead, they waited until after the fairness 
hearing to make such a request. J.A. 774. The Eleventh Circuit 
affirmed Judge Pointer’s rejection of this eleventh-hour request as 
untimely. Jefferson County, 720 F.2d at 1516.



11

this case.16 It would extend to cases involving Franks- 
type relief providing constructive seniority17 18 and to more 
comprehensive modification of an entire seniority system 
under the standards set forth in Teamsters™ both of 
which would necessarily affect non-party employees. Un­
der the Eleventh Circuit’s rationale, non-minority em­
ployees who judged themselves to be adversely affected 
by any of these established Title VII remedies could 
bring collateral actions challenging the decree.

The facts of this case neither justify nor compel these 
adverse results. Rule 24 of the Federal Rules o f Civil 
Procedure provides a fair and adequate means for non- 
parties to protect their interests in ongoing litigation 
without compromising the interests of the parties or un­
duly burdening the court. When non-parties know of the 
ongoing litigation and of the potential adverse effect of a 
proposed consent decree, it is reasonable to assign them 
the burden of intervening or appearing at the fairness 
hearing and presenting all their challenges to the decree. 
Both fundamental principles of finality and important 
policies of fair employment litigation require that in 
these circumstances collateral attacks on the consent de­
cree be barred.

I. THE DECISION BELOW WILL FRUSTRATE THE 
GOALS OF TITLE VII AND IMPAIR EFFICIENT  
OPERATION OF THE JUDICIAL SYSTEM

This Court has consistently emphasized that voluntary 
settlement of employment discrimination claims is a pri­
mary objective of Title VII. Local 93, Firefighters v. 
City of Cleveland, 106 S. C't. 3063, 3076 (1986); W.R.

16 See United Steelworkers v. Weber, 443 U.S. 193 (1979).

17 See Franks v. Bowman Transportation Co., 424 U.S. 747 (1976).

18 See International Brotherhood of Teamsters v. United States, 
431 U.S. 324 (1977).



12

Grace & Co. v. Local 759, International Union of the 
United Rubber, Cork, Linoleum & Plastic Workers of 
America, 461 U.S. 757, 770-71 (1983); Ford Motor Co. 
v. EEOC, 458 U.S. 219, 228 (1982) ; Alexander v. Gard- 
ner-Denver Co., 415 U.S. 36, 44 (1974). Congress 
strongly encouraged employers “ to self-examine and self- 
evaluate their employment practices” and voluntarily to 
cease practices that perpetuate discrimination. Interna­
tional Brotherhood of Teamsters, 431 U.S. at 364 (quot­
ing Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18 
(1975)).

Consent decrees are an important vehicle for achieving 
these statutory goals. Today, an employment discrimina­
tion action brought against a state or local government 
or a large private employer is far more likely to be re­
solved by consent decree than litigated to judgment.10 * * * * * * * * 
Because of the high volume of Title VII litigation,120 a 
negotiated resolution serves the interests of the courts 
and the public, as well as the parties. Consent decrees 
remove complex, multiple party cases from the courts’ 
trial dockets, freeing judicial resources that would other­
wise be consumed by difficult procedural and legal is­
sues.'21

The incentives to settlement of large-scale Title VII 
actions are considerable. Parties are relieved of the high 
costs, risks, and unavoidable delays of litigating such 
cases to conclusion. They can cooperate in restructuring

10 See Schwarzschild, Public Law by Private Bargain: Title VII
Consent Decrees and the Fairness of Negotiated Institutional Re­
form, 1984 Duke L. Rev. 887, 894 ( “ Title VII Consent Decrees” ).

2d In 1987, for example, the number of private plaintiff fair em­
ployment cases pending- in the federal courts exceeded 10,000 cases.
1987 Annual Report of the Director of the Administrative Office
of the United States Courts at 116.

21 See, e.g., United States v. Allegheny-Ludlum Industries, 517
F.2d 826, 851 n.28 (5th Cir. 1975), cert, denied, 425 U.S. 944 (1976).



13

their employment relationship by choosing detailed, feas­
ible solutions that are closely tailored to their specific 
businesses and communities. When remedies are chosen 
by the parties— rather than imposed by the court on the 
losing party— normal working relationships can be re­
sumed more quickly.132

Most important, both parties to the decree are ensured 
of a final disposition of their dispute, approved and en­
forced by the federal courts.® The parties obtain the 
court’s judgment that their agreement “ ‘represents a 
reasonable factual and legal determination based on the 
facts of record. . . .  If the decree also affects third par­
ties, the court must be satisfied that the effect on them 
is neither unreasonable nor proscribed.’ ”  Williams v. 
City of New Orleans, 694 F.2d 987, 991 (5th Cir. 1982) 
(emphasis deleted) (quoting United States v. City of 
Miami, 664 F.2d 435, 441 (5th Cir. 1981) (en banc)).22 23 24 
Indeed, recent decisions of this Court require a judicial

22 Consent decrees thus allow the court to enter remedies that 
correct past discrimination and then restore to the parties the 
freedom to restructure their relationship under the terms of the 
decree. See Spangler v. Pasadena City Board of Education, 611 
F.2d 1239, 1242 (9th Cir. 1979) (Kennedy, J., concurring).

23 See, e.g., United States v. City of Miami, 664 F.2d 435, 441 
(5th Cir. 1981) (en banc) (district court’s task before approving 
Title VII consent decree is to determine that the decree is not 
unlawful, unconstitutional, contrary to public policy, or unreason­
able) ; United States v. City of Philadelphia, 499 F. Supp. 1196, 1199 
(E.D. Pa. 1980) (sam e); Alexander v. Bahou, 86 F.R.D. 194, 198 
(N.D.N.Y. 1980) (before approving Title VII consent decree, dis­
trict court must be assured that its terms are not unlawful, unrea­
sonable, or inequitable). Cf. Kelly v. Kosuga, 358 U.S. 516, 520 
(1959) (court will not enforce a contract that violates the law).

24 p^r example, in the decision on review in Williams, the district 
judge had declined to approve the consent decree because of its 
potential impact on non-parties. Williams v. City of New Orleans, 
543 F. Supp. 662 (E.D. La.), rev’d, 694 F.2d 987 (5th Cir. 1982).



14

determination of the impact of affirmative action relief 
on third parties before such remedies may be approved.* 05

As the present case demonstrates, consent decree pro­
cedures have evolved to provide substantial protection 
for the interests of affected third parties. A fairness 
hearing scheduled after reasonable notice to interested 
persons provides a convenient and inexpensive forum for 
those potentially affected by a decree. Such proceedings 
assure that the decree may be considered, not just in the 
abstract, but in terms of its actual operation.

Finally, consent decrees commonly provide for reten­
tion of jurisdiction by the decree court to enforce, in­
terpret, and monitor compliance with the decree. Judicial 
efficiency is served because a forum familiar with the 
decree and its factual background is available for reso­
lution of future disputes. This feature also serves the 
interests of parties by minimizing any possibility of in­
consistent interpretations.

A. The Decision Below Undermines Incentives to Settle 
Title VII Litigation

The decision below will inevitably frustrate incen­
tives to settlement, resulting in a much larger volume 
of litigation. Moreover, because this case presents an ex­
treme example of litigants who deliberately declined an 
opportunity to litigate in order to pursue an attack on 
the decree in another proceeding, the endorsement of 
their tactic by the court below necessarily endorses all 
collateral attacks on consent decrees.

Under the decision below, the decree can be subjected 
to seriatim attacks challenging its terms and legality. 
As a result, a consent decree becomes the beginning of 
litigation, rather than the end. If the rule adopted below

25 See Johnson v. Transportation Agency, Santa Clara County, 107
S. Ct. 1442, 1445 (1987); United Steelworkers v. Weber, 443 U.S. 
193, 208 (1979).



15

were allowed to stand, approval of a consent decree would 
initiate a protracted process that would involve the fed­
eral courts in perpetual scrutiny of the employment prac­
tices of local governments and private employers.

The broad rule adopted below deprives parties of much 
of the benefit of resolving their disputes through consent 
decrees, and it consequently creates a strong disincentive 
to their use. The employer’s motivation to negotiate a 
settlement would be substantially reduced because imple­
mentation of the consent decree could continually force 
the employer back into court to defend the decree.21' 
Without some assurance of finality, the employer’s only 
alternative might be to continue the litigation.

Plaintiffs are equally unlikely to consider a consent 
decree an attractive alternative under the rule adopted 
by the court below. For many plaintiffs who negotiate 
consent decrees, a share of prospective opportunities for 
employment and promotion is a critical element of the 
overall bargain. Other claims, for back pay or specific 
relief, may have been adjusted in negotiations in light 
of the prospective relief. The prospect of collateral at­
tacks on the decree, however, would make it impossible 
for plaintiffs to be confident of retaining the benefits of 
the bargain, even after the decree court’s approval. If 
plaintiffs’ hard-earned rights to employment or promotion 
stand to be undone when challenged by fellow employees, 
they will be much less willing to compromise any claims 
in a settlement.

B. The Decision Below Would Produce Repetitive, 
Duplicative Litigation

In addition to raising virtually insurmountable ob­
stacles to settlement of Title VII cases, the decision below 
implicates broader issues of comity and judicial efficiency. 38

38 The employer might also be compelled to litigate its liability 
under Title VII—the specific judgment it sought to avoid in 
settling the case.



16

The Eleventh Circuit’s rule permitting collateral attacks 
on consent decrees could result in the imposition of a 
tremendous burden of unnecessary, duplicative litiga­
tion.27 Under the decision below, any employee who de­
clined to participate in the consent decree litigation but 
claims an adverse effect due to the operation of the decree 
could bring a separate lawsuit against the employer.28 
Actions by even a small number of the employees af­
fected by the operation of existing consent decrees would 
not only unduly burden the parties, but would severely 
tax judicial resources.

Moreover, nothing in the Eleventh Circuit’s decision 
would limit this proliferation of litigation to the original 
decree court. Instead, non-parties could simply sit back 
and observe the principal litigation and, if it appeared 
that the judge were inclined to approve the decree, choose 
to refrain from participating directly in the action.29 By

27 These procedural, jurisdictional, and practical problems may 
explain why this Court has never required Rule 19 joinder of 
affected third parties. Accordingly, the lower courts have consist­
ently proceeded on the assumption that non-minority employees are 
not indispensable parties to Title VII actions. See, e.g., Kirkland v. 
New York State Department of Correctional Services, 520 F.2d 420, 
424 (2d Cir. 1975), cert, denied, 429 U.S. 823 (1976); English v. 
Seaboard Coast Line Railroad, 465 F.2d 43, 46 (5th Cir. 1972) (it 
is clear that Rule 19(a) does not require joinder of white employees 
in every case in which their interests may be adversely affected).

28 The litigation history of the instant cases demonstrates that 
this scenario is not unrealistically alarmist. Following entry of the 
consent decrees, virtually every attempt by the City of Birmingham 
to effect promotions pursuant to the decrees has prompted the filing 
of discrimination charges with the EEOC. The fact that five sepa­
rate reverse discrimination lawsuits involving 41 plaintiffs challeng­
ing promotions made under the consent decrees have been brought 
to date is compelling evidence that a rule permitting collateral 
attacks engenders costly, repetitive litigation.

29 An inevitable consequence of this option is that the efficiency 
of the consent decree process itself would be undermined. With such 
a strong disincentive for interested parties to intervene, courts and



17

this strategy, non-parties could knowingly avoid having 
their interests affected in the principal litigation in an 
attempt to secure a more sympathetic forum.

The availability of a different forum or judge also 
compounds the possibility that the separate actions would 
result in judgments that conflict with a preexisting con­
sent decree. Conflicting judgments could place employers 
in the untenable position of being subject to contempt of 
court citation for complying with either (or neither) 
judgment.80 In this context conflicting judgments also 
implicate well-established notions of comity because they 
arise when one district court is asked to review another 
court’s approval of a consent decree.131

Respondents’ conduct here exemplifies a form of claim 
splitting that plainly could engender conflicting judgments 
and impair judicial efficiency. They allowed the union to 
stand as their surrogate at the fairness hearing but de- * 81

the parties will be handicapped in fashioning the decree in the first 
instance for lack of input from all those whose interests may be 
affected.

30 The problem of conflicting orders is dramatically illustrated by 
the record in this case. See J.A. 208. The potential for imposition 
of conflicting obligations is frequently recognized as a possible 
result of permitting collateral attacks on consent decrees. See, e.g., 
Thaggard, 687 F.2d at 68; Stotts v. Memphis Fire Department, 679 
F.2d 541, 559 (6th Cir. 1982), rev’d on other grounds sub nom. Fire­
fighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984) ; 
Dennison, 658 F.2d at 695; O’Burn v. Shapp, 70 F.R.D. 549, 552 
(E.D. Pa.), aff’dmem., 546 F.2d 417 (3d Cir. 1976), cert, denied, 430 
U.S. 968 (1977); see also United Steelworkers v. Weber, 443 U.S. 
193, 209-10 (1979) (Blackmun, J., concurring).

81 See, e.g., Goins, 657 F.2d at 64 (collateral attack on a consent 
decree deemed an “ attempt to ‘appeal from one district judge to 
another,’ ” which is barred by comity) (quoting Ellicott Machine 
Corp. v. Modern Welding Co., 502 F.2d 178, 181 (4th Cir. 1974)); 
cf. Bergh v. Washington, 535 F.2d 505, 507 (9th Cir.), cert, denied, 
429 U.S. 921 (1976) (comity considerations require judicial re­
straint where requested relief would conflict with prior judgment).



18

dined the opportunity formally to participate in that pro­
ceeding. When the union’s objections were rejected by 
the decree court, respondents sought to present the very 
same challenge to the decrees to a different judge.812 
They vigorously opposed efforts to consolidate the reverse 
discrimination lawsuits in a single action before Judge 
Pointer. See J.A. 147, 196, 208. Such use of claim split­
ting as a vehicle for forum shopping would be inevitable 
if consent decrees were held subject to attack in separate 
proceedings.

The claim splitting endorsed by the decision below also 
offends basic principles of finality of judgments. While 
the doctrine of res judicata is not applicable to the pres­
ent case in a technical sense,®3 it is worth noting that the 
doctrine

ensures “ the very object for which civil courts have 
been established, which is to secure the peace and 
repose of society by the settlement of matters cap­
able of judicial determination. Its enforcement is 
essential to the maintenance of social order; for, the 
aid of judicial tribunals would not be invoked for 
the vindication of rights of person and property, if 
. . . conclusiveness did not attend the judgments of 
such tribunals.”

Nevada v. United States, 463 U.S. 110, 129 (1983) (quot­
ing Southern Pacific Railroad v. United States, 168 U.S. 
1, 49 (1897)). To achieve that objective, the doctrine 
extends both to claims actually raised and determined 32 33

32 Disappointed employees seeking to redress perceived violations 
of their rights can be expected to make every effort to avoid 
appearing before the judge that entered the decree; that judge has 
already decided that the decree is fair and lawful. Respondents 
made just such an effort here.

33 In order for res judicata to apply, the previous litigation must 
have been between the same parties or their privies, or the party 
being estopped must have had control over the prior litigation. See 
18 C. Wright, A. Miller, & E. Cooper, Federal Practice & Procedure 
§ 4451 (1981).



19

mid to claims that the parties could have litigated. 
Brown v. Felsen, 442 U.S. 127, 131 (1979). Respondents 
should not be “ at liberty to prosecute [a] right by piece­
meal . . . presenting a part only of the available grounds 
and reserving others for another suit.”  Grubb v. Public 
Utilities Commission, 281 U.S. 470, 479 (1930).84

Shorn of their verbiage, respondents’ complaints seek 
merely to relitigate Judge Pointer’s determination that 
the consent decrees are valid.135 Having had the opportu­
nity to seek timely intervention and fully to present 
their claims to the court at the fairness hearing— and 
after the very same claims were actually considered by 
the district court.— respondents should not now be per­
mitted to wage a full scale collateral attack on the con­
sent decrees.

II. REQUIRING INTERVENTION IS THE ONLY PRAC­
TICAL MEANS TO' ACCOMMODATE THE INTER­
ESTS OF THIRD PARTIES WHILE PRESERVING  
THE VIABILITY OF THE CONSENT DECREE 
PROCESS

A rule barring collateral attacks by persons who make 
a knowing decision to forego formal participation in the 
original consent decree adjudication is the only practical 
means of accommodating both societal interests served by 
Title VII consent decrees and individual opportunities to 
be heard. Congress provided a framework for that bal- * 35

84 This Court has confirmed the importance of conformity to res 
judicata principles in resolving fair employment claims. Kremer 
v. Chemical Construction Corp., 456 U.S. 461 (1982) ; see also 
Detroit Police Officers Association v. Young, 824 F.2d 512 (6th 
Cir. 1987).

35 The first two complaints filed by respondents, in the Bennett 
and Birmingham Association of City Employees cases, literally chal­
lenged the validity of the decree. Pet. App. 110a; J.A. 93. While 
the subsequent Wilks complaint avoided an express attack on the 
decree, that artful pleading does not alter the fact that the com­
plaint’s essential thrust is a full-scale attack on the decree. J.A. 130.



20

ancing of competing interests in Rule 24 of the Federal 
Rules of Civil Procedure, which allows the entrance of 
non-parties into actions in which their interests may be 
substantially “ impaired or impeded” in their absence. 
See Fed. R. Civ. P. 24 (a ) (2 ) .  Rule 24 provides for 
orderly disposition of non-parties’ claims in a single pro­
ceeding, authorizing interested persons with knowledge 
of the litigation and its potential effect on them to secure 
a hearing.

Compulsory joinder of all non-minority employees pur­
suant to Rule 19(a) of the Federal Rules of Civil Proce­
dure is not a practical alternative to Rule 24 interven­
tion because it creates insurmountable procedural difficul­
ties. The first, of these involves statutory requirements 
of Title VII. Non-minority employees may contend that 
they cannot properly be joined as defendants because they 
are not proper respondents under Title VII and thus 
could not be subject to an Equal Employment Opportu­
nity Commission ( “ EEOC” ) charge.®8 Similarly, non- 
minority employees may not be subject to joinder as 
plaintiffs, since they will not, in most cases, have filed 
their own Title VII charges and will be unable to proceed 
within the scope of the charges upon which the litigation 
is based.* 87

In addition, requiring mandatory joinder would prove 
unfair to both existing parties and potentially interested 
third parties. It would place on the existing parties the 
onus of determining who might be interested in the judg­

38 Title VII limits the defendants subject to charges to. employers, 
labor unions, agencies, and joint apprenticeships. 42 U.S.C. § 2000e- 
5(b). The filing of a charge with the EEOC is a jurisdictional re­
quirement. See 42 U.S.C. § 2000e-5(f) (1 ) ; Way v. Mueller Brass, 
840 F.2d 303, 307 (5th Cir. 1988); Romain v. Kuret, 772 F.2d 281, 
283 (6th Cir. 1985) ; Eggleston v. Chicago Journeymen Plumbers, 
657 F.2d 890, 905 (7th Cir. 1981), cert, denied, 455 U.S. 1017 (1982).

87 Non-minority employees could not become members of the 
existing plaintiff classes because their claims would be legally and 
factually distinct from those typical of the classes. See Fed. R. 
Civ. P. 23(a)(2 ).



21

ment, despite the potential parties’ superior knowledge 
of their own interests. Without full understanding of 
those interests, existing parties might choose to draw 
broad groups of conceivably interested persons into the 
litigation, encumbering already complex proceedings with­
out enhancing third parties’ opportunities to be heard. 
In the case of large employers, the costs to both parties 
and the courts of litigating Title VII claims could rise 
exponentially.

The difficulties inherent in broadly expanding Title VII 
actions by joining all potentially interested parties could 
not be avoided by attempting to name a defendant class 
of non-minority employees. At the outset, it is currently 
unclear whether Rule 2 3 (b ) (2 )— the class action pro­
vision applicable in Title VII cases— even permits a de­
fendant class. This Court granted certiorari in Henson 
v. East Lincoln Township, 814 F.2d 410 (7th Cir. 1987), 
cert, granted, 108 S. Ct. 691 (1988), to resolve precisely 
that question.818

Beyond this, attempted invocation of class action mech­
anisms would require the district courts to deal with a 
tangle of procedural difficulties, including (1) determina­
tion of the scope of the defendant class; (2) identification 
of a representative who would be “ typical” of the pos­
sibly thousands of employees involved; (3) investigation 
of the representative’s ability to represent the class fairly 
and adequately; and (4) selection of a competent attor­
ney for the defendant class.38 39 Moreover, certification of

38 In Henson, the Seventh Circuit held that Rule 23(b)(2) did 
not authorize defendant class actions. 814 F.2d at 417. Accord 
Thompson v. Board of Education, 709 F.2d 1200, 1203-04 (6th Cir. 
1983); Paxman v. Campbell, 612 F.2d 848, 854 (1980) (en banc), 
cert, denied, 449 U.S. 1129 (1981). But see Marcera v. Chinlund, 
595 F.2d 1231, 1238 (2d Cir.), vacated on other grounds sub nom. 
Lombard v. Marcera, 442 U.S. 915 (1979).

39 See generally Note, Certification of Defendant Classes Under 
Ride 23(b)(2), 1984 Colum. L. Rev. 1371, 1384-89 ( “Certifica­



22

the defendant class might be denied on standing grounds 
if plaintiffs could not demonstrate that their interests 
were adverse to those of all proposed class members.40

Substantial questions of fairness to third parties also 
arise, because the named representative—-despite a poten­
tial lack of personal interest in the implementation of the 
decree— would be forced to retain appropriate counsel, 
assume responsibility for costs, and accept the obligation 
of properly representing the class.41 In addition, these 
obligations, to the class may make the representative un­
able or unwilling to settle, burdening the court with liti­
gation that might otherwise be concluded through negoti­
ation. Rather than providing a procedural panacea, ad­
dition of a defendant class to ongoing Title VII litigation 
would only compound its complexity.

Given the massive practical difficulties that would be 
created by requiring mandatory joinder under Rule 19, 
Rule 24 is clearly the superior procedural mechanism for

tion” ). The adequacy of the representative would be a critical 
issue that would determine the binding effect of any judgment on 
the unnamed class members. See Hansberry v. Lee, 311 U.S. 32, 
44-45 (1940) ; see also Wolfson, Defendant Class Actions, 38 Ohio 
St. L. J. 459, 477 (1977).

40 See 7A C. Wright, A. Miller, & M. Kane, Federal Practice & 
Procedure § 1770 at 403 (1986) ; Certification, 84 Colum. L. Rev. at 
1375; see also LaMar v. H.&B. Novelty & Loan Co., 489 F.2d 
461, 467 (9th Cir. 1973); Mudd v. Busse, 68 F.R.D. 522, 527 (N.D. 
Ind. 1975), cuff’d mem., 582 F.2d 1283 (7th Cir. 1978), cert, denied, 
439 U.S. 1078 (1979); Weiner v. Bank of King of Prussia, 358 
F. Supp. 684, 690 (E.D. Pa. 1973).

41 See Wolfson, Defendant Class Actions, 38 Ohio St. L. J. 459, 
464 (1977). Faced with the high costs of defending such litigation, 
the involuntary class representative might well claim a violation of 
his due process rights, adding a further complication to the litiga­
tion. See Williams, Some Defendants Have Class: Reflections on 
the GAP Securities Litigation, 89 F.R.D. 287, 293 (1981); see also 
Kline v. Coldwell, Banker & Co., 508 F.2d 226, 235 (9th Cir. 1974), 
cert, denied, 421 U.S. 963 (1975).



23

resolving the claims of informed third parties.42 While 
both rules provide a means of involving non-parties in 
litigation that may affect them, Rule 24, with its volun­
tary component, is better able to deal with cases in which 
the person has notice of the action and can decide whether 
his interests warrant participation in the action.

Moreover, respondents here had an additional option 
to participate, short of formal intervention, by appearing 
at the fairness hearing. That hearing, held after 
community-wide notice of the opportunity to appear and 
participate, provided respondents with an effective means 
of raising all their challenges to the decrees’ factual 
foundation, terms, and design, including any alleged 
trammeling effect arising from the decrees. As the trans­
cript of that hearing amply demonstrates, the district 
court was scrupulous in providing all interested persons 
the opportunity to be heard. J.A. at 727. Respondents, 
who declined formally to participate in that proceeding, 
cannot establish any procedural or equitable right to an 
additional opportunity to assert their claims.

CONCLUSION

The lule of law adopted by the court below undermines 
strong statutory policies encouraging voluntary settle­
ment of Title VII actions and ignores fundamental poli­
cies favoring finality of decrees and judgments. This 
Court should reject the broad rule adopted below and re­
quire employees with knowledge of ongoing Title VII liti­
gation against their employers to take the initiative in 
protecting their own interests. Neither the Federal Rules

42 Neither the text nor the legislative history of these rules re­
quires a preference for mandatory Rule 19 joinder over voluntary 
Rule 24 intervention. See Fed. R. Civ. P. 24 advisory committee 
note (1966 Amendment); see also New York State Association for 
Retarded Children v. Carey, 438 F. Supp. 440, 445 (E.D.N.Y. 1977) 
(the only difference between intervention under Rule 24 and joinder 
under Rule 19 “ is which party initiates the addition of a new party 
to the case” ).



24

of Civil Procedure nor the Constitution grants individuals 
such as respondents the right to waive formal participa­
tion in ongoing proceedings and then relitigate identical 
issues in their chosen forum. Accordingly, where the 
non-parties to a consent decree have knowledge of the 
proceeding and a timely opportunity to intervene but 
choose not to do so, they should be precluded from at­
tacking the terms or legality of the consent decree in a 
subsequent collateral proceeding.

Of Counsel:
Barry L. Goldstein 
NAACP Legal Defense & 

Educational Fund, Inc.
Suite 301 
1275 K Street 
Washington, D.C. 20005
Julius LeVonne Chambers 
Ronald L. Ellis 
NAACP Legal Defense & 

Educational Fund, Inc .
Suite 1600
99 Hudson Street
New York, New York 10013
Claudia W ithers
W omen ’s Legal Defense Fund
2000 P Street, N.W.
Washington, D.C. 20036
Marcia D. Greenberger 
Brenda Smith
National W omen ’s Law Center 
Suite 100
1616 P Street, N.W.
Washington, D.C. 20036
William C. McNeill, III 
Eva Jefferson Paterson 
301 Mission Street 
Suite 400
San Francisco, California 94105 
Attorneys for International 

Association of Black 
Professional Firefighters

Respectfully submitted,

N. T hompson Powers 
Ronald S. Cooper 

(Counsel of Record)
Janice Barber 
Steptoe & Johnson 
1330 Connecticut Avenue, N.W. 
Washington, D.C. 20036 
(202) 429-3000 
Attorneys for Amici Curiae 

NAACP Legal Defense & 
EducoMonal Fund, Inc., 
Women’s Legal Defense 
Fund, National Women’s 
Law Center, and Inter­
national Association of 
Black Professional 
Firefighters

August 18, 1988