Marino v New York City Police Department Brief for Respondent

    In the

Supreme ( ta r t  of the Mniizb States
October Term, 1987

E v e l y n  M a r in o , e t  a l ., P e t it io n e r s , 

J u a n  U . O r t iz , e t  a l .

Wa y n e  C o s t e l l o , e t  a l ., P e t it io n e r s ,

T h e  N e w  Yo r k  C it y  P o l ic e  D e p a r t m e n t , e t  a l .

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

BRIEF FOR RESPONDENT 
THE HISPANIC SOCIETY, ET AL.

L in d a  F l o r e s  
K e n n e t h  K im e r l in g * 
Puerto Rican Legal Defense 

& Education Fund, Inc. 
99 Hudson Street 
New York, New York 10013 
(212) 219-3360 
Attorneys For Respondent 

Hispanic Society, et al.

*Counsel of record.



1

ISSUES PRESENTED FOR REVIEW

1. Whether petitioners who presented their legal objection 
to a settlement at a hearing on the settlement and had that 
claim resolved on the merits can proceed with a separate action 
presenting that same claim?

2. Whether petitioners have standing to challenge nonaffir­
mative compliance and make-whole relief to victims of dis­
crimination?

3. Whether petitioners who had no interest in the subject 
matter of an action and had no legally protected interest at 
issue in that action are necessary parties to that action under 
Rule 19 Fed.R.Civ.P.?





TABLE OF CONTENTS

PAGE

ISSUES PRESENTED FOR REVIEW ...............    i

TABLE OF AUTHORITIES............................................. v

STATEMENT OF THE C A SE ........................................ 1

INTRODUCTION AND SUMMARY.........................  1

COSTELLO v. N EW  YORK C ITY POLICE
D EPARTM ENT....................      2

MARINO v. O R T IZ ......................................................  7

SUMMARY OF ARGUMENT......................................... 10

ARGUMENT..................................      13

POINT I: THE M ARINO  COMPLAINT WAS
CORRECTLY DISMISSED AS AN IM­
PROPER COLLATERAL ATTACK . . . .  13

POINT II: ALTERNATIVELY, MARINO  SHOULD 
BE AFFIRMED BECAUSE PETITION­
ERS LACK STANDING.........................  22

POINT III: COSTELLO PETITIONERS ARE NOT 
NECESSARY PARTIES UNDER RULE 
19 FED. R. CIV. P ...................................  25

Ill

CONCLUSION 29





V

TABLE OF AUTHORITIES

Cases: p a g e

Ablemarle Paper Co. v. Moody, 422 U.S. 405 (1975).. .22, 23
Adams v. Morton, 581 F.2d 1314 (9th Cir. 1978), cert, 

denied sub. nom., Gros Ventre Tribe v. U.S., 440 U.S.
958 (1979)........................................................................ 13

Adickes v. Kress & Co., 398 U.S. 144 (1970).................. 26

Arizona v. California, 460 U.S. 605 (1983) .................. 18

Ashley v. City o f  Jackson, 464 U.S. 900 (1983).............. 20

Boggs v. Darr, 103 ER.D. 526 (D. Kan. 1984).............. 28

Berkman v. City o f New York, 705 F.2d 584 (2d Cir.
1983).............................................................................. .22, 24

Black and White Children o f Pontiac School System v. 
School District o f  the City o f Pontiac, 464 F.2d 1030 
(6th Cir. 1972)..................................................................  16

Bronson v. Board o f Education, 525 F.2d 344 (6th Cir.
1975), cert, denied, 425 U.S. 934 (1976).....................  20

Brown v. Felsen, 442 U.S. 127 (1979).............................  18

Bryant v. Yellen, 447 U.S. 352 (1980).............................  17

Cassidy v. Municipal Civil Service Commission, 37 
N.Y.2d 526 (1975)............................................................  28

Colorado River Water Conservation District v. U.S., 424 
U.S. 800 (1976)................................................................  18

Consumers Union o f United States v. Consumer Prod­
uct Safety Commission, 590 F.2d 1209 (D.C.Cir.
1978), rev’d sub. nom. GTE Sylvania Inc. v. Con­
sumers Union, Inc., 455 U.S. 375 (1980)...................  16



Corley v. Jackson Police Department, 755 F.2d 1207 (5th 
Cir. 1985).....................................................................

Culbreath v. Dukakis, 630 F.2d 15 (1st Cir. 1980)........16,

Dennison v. City o f Los Angeles Department o f  Water 
and Power, 658 F.2d 694 (9th Cir. 1981)....................

E.E.O.C. v. McCall Printing Corp., 633 F.2d 1232 (6th 
Cir. 1980)..........................................................................

Elmendorf v. Taylor, 10 Wheat (23 U.S.) 152 (1825) . . .

Federated Department Stores Inc. v. Moitie, 452 U.S. 
394 (1981)......................................................................

Firefighters v. Cleveland, 478 U.S. ____, 92 L.Ed.2d
405, 54 U.S.L.W. 5005 (1986)........................ .. .13, 14,

Firefighters v. Stotts, 467 U.S. 561 (1984).....................
Franks v. Bowman Transportation Co., 424 U.S 747 

(1976)............... ...................................................... 12, 22,

Freeze v. Aro, Inc., 503 F.Supp. 1045 (E.D. Tenn. 1980)
Grann v. City o f  Madison, 738 F.2d 786 (7th Cir.), cert, 

denied, 469 U.S. 918 (1984)...........................................

Griggs v. Duke Power Co., 401 U.S. 424 (1971)............

Guardians Association v. Civil Service Commission, 527 
F.Supp. 751 (S.D.N.Y. 1981).........................................

Gutierrez v. Waterman Steamship Corp., 373 U.S. 206 
(1963)........................................ .....................................

Hibbler v. Birmingham Bonehead Highway, Inc., 496 
F.2d 1171 (5th Cir. 1974)................................................

Howard v. McLucas, 782 F.2d 956 (11th Cir. 1986)___

Jackson v. Sargent, 394 F.Supp. 162 (D. Mass.), a ff’d 
on other grounds, 526 F.2d 64 (1st Cir. 1975)..............

16
28

16

24

26

18

23

22

23

24

16

3

3

22

28
20

28



V ll

Kirkland v. New York State Department o f Correctional 
Services, 711 F.2d 1117 (2d Cir, 1983), cert, denied,
465 U.S. 1005 (1984).................................................... passim

Kirkland v. New York State Department o f Correctional 
Sevices, 520 F.2d 420 (2d Cir. 1975), cert, denied, 429 
U.S. 823 (1976)................................................................26, 28

Los Angeles Unified School District v. Los Angeles 
Branch o f NAACP, 714 F.2d 935 (9th Cir. 1983) . . . .  20

Marino v. Ortiz, 806 F.2d 1144 (2d Cir. 1986)................ 4, 9

Matthews v. Eldridge, 424 U.S. 319 (1976)..................... 11, 18
McKinney v. Alabama, 424 U.S. 669 (1976)................... 13, 17

Mitchell v. City o f Los Angeles, 753 F.2d 86 (7th Cir.
1985).................................................................................  16

Montana v. United States, 440 U.S. 17 (1979)................14, 15

Moots v. Commissioner o f  Pennsylvania, 495 F.2d 1095 
(3d Cir.), cert, denied sub. nom. Churchill Area 
School District v. Moots, 419 U.S. 884 (1974).......... . 26

Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306 (1950)........................................................................ 19

National Equipment Rental v. Szuknent, 375 U.S. 311 
(1964)...............................................................................  19

National Licorice Co. v. N.L.R.B ., 309 U.S. 350 (1940) 28

National Wildlife Federation v. Gorsuch, 744 F.2d 963 
(3d Cir. 1984).................................................................. 16

Northern Alaska Environmental Center v. Model, 803 
F.2d 466 (9th Cir. 1986).................................................  28

O ’Burn v. Shapp, 70 FR.D. 549 (E.D. Pa. 1976), a ff’d 
mem sub nom. Lutz v. Shapp, 546 F.2d 417 (3d Cir.
1976), cert, denied, 430 U.S. 968 (1977)

PAGE

16



Vlll

Patterson v. Newspaper and Mail Delivers’ Union, 514 
F.2d 767 (2d Cir. 1975), cert, denied, A ll U.S. 911 
(1976) .............................................................................. 24

Penn. Central and N  & W Inclusion Cases, 389 U.S. 48 
(1968) .................................. ........................................... 16

Prate v. Freedman, 430 F.Supp. 1373 (W.D.N.Y.), a ff’d 
mem., 573 F.2d 1294 (2d Cir. 1977), cert, denied, 436 
U.S. 922 (1978)..................... ................................... . 9, 16

Provident Tradesmens Bank & Trust Co. v. Patterson,
390 U.S. 102 (1968). ....................................................... 26

Rios v. Enterprise Association o f Steamfitters, 520 F.2d 
352 (2d Cir. 1975)................. .......................................... 24, 27

Safir v. Dole, 718 F.2d 475 (D.C. Cir. 1983), cert, 
denied, 467 U.S. 1206 (1984)......................................... 16

Sheet Metal Workers v. E.E.O.C., 478 U.S. ____ , 92
L.Ed.2d 344, 54 U.S.L.W. 4984 (1986)................... 4, 23, 24

Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969).......... 28
Society Hill Civil Association v. Harris, 632 F.2d 1045 

(3d Cir. 1980).........................   16

Souffront v. La Compagnie Des Sucreries, 111 U.S. 475 
(1910).............................................................................  15

Special Jet Services, Inc. v. Federal Insurance Co., 83 
F.R.D. 596 (W.D.Pa. 1979), rev’d on other grounds,
643 F.2d 977 (3d Cir. 1981)........................................... 28

Stotts v. Memphis Fire Dept., 679 F.2d 541 (6th Cir.
1982), rev’d on other grounds sub. nom. Firefighters 
v. Stotts, 467 U.S. 561 (1984)...................................... 16

Thaggard v. City o f  Jackson, 687 F.2d 66 (5th Cir. 1982), 
cert, denied sub. nom., Ashley v. City o f Jackson, 464 
U.S. 900 (1983)...............................................................16, 24

PAGE



IX

Travelers Health Association v. Virginia, 339 U.S. 643 
(1950)................................................ ............................... 2

United States ex. rel. Louisiana v. Jack, 244 U.S. 397 
(1917)................................................................................ 14

United States v. Jefferson County, 720 F.2d 1511 (11th 
Cir. 1983).......................................................................... 16

United Airlines Inc. v. McDonald, 432 U.S. 385 (1977). 17
United States v. Paradise, 480 U .S .____, 94 L.Ed.2d

203, 55 U.S.L.W. 4211 (1987).......................................23, 24

Warth v. Seldin, 422 U.S. 490 (1975)...................  25
Wygant v. Jackson Board o f Eduation, 476 U .S .____,

70 L.Ed.2d 260, 54 U.S.L.W. 4479 (1986).......................  6

Zipesv. Trans World Airlines, Inc., 455 U.S. 385 (1982) 14

Constitution, Statutes & Rules:

PAGE

Fourteenth Amendment..................................................   .passim

Title VII, 42 U.S.C. § 2000e et seq. ............................ .passim

Rule 19 Fed.R .C iv.P .......................................... ............ passim

Rule 20 Fed.R.Civ.P............................................. . .2, 12, 27

Rule 24 Fed.R.Civ.P........................................................ 18
Rule 60 Fed.R.Civ.P......................................   20

Miscellaneous:
IB Moore’s Federal Practice, 1 0.405[4.-1] (1984 ed.) .. 15

IB Moore’s Federal Practice, If 0.411 [6] (1984 ed.)........ 15
3A Moore’s Federal Practice, 1 19.07 [2.-0] (1987 ed.) . 28

Wright, Miller & Lane, 7 Federal Practice § 1611 (1986 
e d .) .........................................................................   26



STATEMENT OF THE CASE

Introduction and Summary
The two cases before the Court involve the settlement of 

Title VII employment discrimination claims by Hispanic and 
black police officers in regard to promotions to the position of 
sergeant in the New York City Police Department (“NYPD”). 
The settlement provided that the NYPD could promote police 
officers to the position of sergeant only if the disparate impact 
of the challenged examination was eliminated. (Settlement, JA 
52-85).1 As a result, all those police officers on the existing 
eligible list were promoted along with additional Hispanic and 
black police officers added to the list. (A 84-85).2

The Marino and Costello petitioners3 are individual police 
officers who were not on the eligible list but had examination 
scores equal to the scores of those Hispanics and blacks added 
to the list under the settlement. These petitioners sought to 
benefit as well from the settlement by arguing that the equal 
protection clause of the Fourteenth Amendment to the Consti­
tution required that once the Hispanics and blacks are pro­
moted that they too should be added to the eligible list and

1 Citations to the record on appeal will be as follows: documents in 
the Appendix to the Petition for Writ of Certiorari shall be cited to by 
“A” and page number; documents in the Joint Appendix shall be cited 
to by “JA” and page number; and documents not in the appendices 
shall be cited by a brief description, HR for the Hispanic Society 
record and GR for the Guardians Association record, the document 
number as found in the listing of the Docket Entries and the page 
number, if appropriate, e.g. Interim Order, HR 19 at 1. Occasionally, a 
brief description of the document in the Appendix or Joint Appendix 
will also be included in the citations to those appendices. There are a 
number of misspellings and other errors in the appendices; the parts of 
the record that are quoted in this Brief are set forth without these 
errors.

2 Since the decisions in the Court of Appeals, as the result of litigation 
in the New York State courts, over 700 additional police officers were 
added to the eligible list. Most of these police officers have also been 
promoted including over half of the petitioners.

3 All the individual Marino petitioners are all included among the 
Costello petitioners. Petitioners’ Brief at 11.



2

promoted. (Marino Complaint, A 14-29; Costello Objections 
to Settlement, JA 183-206).

The Costello petitioners made their equal protection argu­
ment at the hearings on the settlement. (A 100-106). They were 
considered by the District Court and rejected. (A 98-99). Their 
appeal of the settlement was dismissed as they were not parties 
to the lawsuit. (A 58-79).

The Marino petitioners filed a separate lawsuit against New 
York City officials and agencies based on the same legal theory. 
(A 14-29). The Marino complaint was dismissed as a collateral 
attack on the settlement. (A-13). The Court of Appeals af­
firmed the dismissal. (A 1-13).4

The questions presented to this Court are: 1) whether the 
Marino complaint should have been dismissed as a collateral 
attack on the settlement; 2) whether Marino petitioners had 
standing to file their complaint; and, 3) whether the Costello 
petitioners should have joined as parties pursuant to Rule 195 
of the Federal Rules of Civil Procedure in the Title VII actions.

Set out below in greater detail are the facts and procedural 
histories of the two cases before the Court.

Costello v. New York City Police Department

In September of 1984, the Hispanic Society of the New York 
City Police Department and several Hispanic police officers 
brought a Title VII, 42 U.S.C. § 2000e et seq., employment 
discrimination lawsuit against the NYPD and New York City 
Department of Personnel. (Complaint, JA 22-31). A similar 
lawsuit was filed by the Guardians Association and several 
black police officers. (Complaint, JA 11-21). The gravamen of

The last two paragraphs of the Opinion have been left out of the 
Appendix. The decision is reported at 806 F.2d 1144.

This last question when set forth in the petition for writ of certiorari 
included a reference to Rule 20 of the Federal Rules of Civil Proce­
dure. However, petitioners have not briefed Rule 20, and respondents 
are treating it as waived. Travelers Health Association v. Virginia, 339 
U.S. 643, 651 n.4, 94 L.Ed 1154 (1950).



3

these complaints was that examination #2548 for sergeant had 
a disparate impact on minority police officers and was not job 
related. There were three intervening defendants in each of 
these lawsuits: 1) the Schneider intervenors, non-minority po­
lice officers and non-minority fraternal police officer organiza­
tions6 (Motions to Intervene, HR 4 and GR 3); 2) the Sergeant 
Benevolent Association (“SBA”), the collective bargaining 
agent for all sergeants (SBA Motions to Intervene, HR 10, GR 
7); and, 3) the Sergeants Eligibles Association, (“SEA”), an ad 
hoc organization of police officers on the eligible list (SEA 
Motions to Intervene, HR 18, GR 10). These two lawsuits are 
hereinafter referred to jointly as the Hispanic Society litiga­
tion.

Extensive discovery was engaged in by the parties and by the 
United States Attorney for the Southern District.7 (JA 121 - 
122). Discovery led to two conclusions: 1) that the examination 
had a disparate impact; and, 2) that the examination could not 
be shown to be job related in accordance with Title VII 
standards. (JA 60-61).8 Thus, there was a violation of Title 
VII.9 These conclusions were shared by all the parties.10

6 The Emerald Society (Irish), the Columbia Association (Italian); the 
Shomrim Society (Jewish), the St. Paul Society (Greek), and the 
Steuben Society (German). (Motion to Intervene, HR 4).

7 The U.S. Attorney’s office was permitted to participate in discovery 
since it had been involved in a prior settlement regarding an earlier 
sergeants examination. Under that settlement the U.S. Attorney had 
some rights to oversight on the challenged examination #2548. Guard­
ians Association v. Civil Service Commission, 527 F.Supp. 751, 755 
(S.D.N.Y. 1981).

8 See also, affidavits of defendants’ counsel, JA 144-145, and Mayor 
Koch, JA 158-159.

9 See, Griggs v. Duke Power Co., 401 U.S. 424 (1971); Kirkland v. 
New York State Correctional Services, F.2d 1117, 1131 (2d Cir. 1983), 
cert, denied, 465 U.S. 1005 (1984).

10 The Schneider intervenors did not participate in the discovery and 
took no position on these issues. The U.S. Attorney’s office also 
concurred in these conclusions. (JA 158-159).



4

Settlement discussions ensued. Given that the examination 
was discriminatory in violation of Title VII, the City defend­
ants were faced with two alternatives.11 They could have 
scrapped the examination. This would have resulted in the 
recision of about 500 provisional promotions to sergeant that 
had been made already. This alternative would have left the 
City with only half of its some 2800 sergeant positions filled (A 
86) and a long delay before a new examination would be 
prepared. Or, the City could promote enough police officers to 
fulfill its needs for sergeants. But it could do so only if the 
disparate impact of the examination were eliminated by the 
promotion of sufficient numbers of blacks and Hispanics. This 
second alternative not only had the benefits of providing the 
City with sufficient sergeants but it avoided the destruction of 
the good order and morale of the Police Department that 
would have resulted from the demotion of 500 provisional 
sergeants. (Vice President SBA Affidavit, JA 92-106 and 
Settlement, JA 63). The City chose the second alternative. 
(Mayor Koch Affidavit, JA 157-164). The City really had no 
other choice as the first alternative was clearly unacceptable. 
Id. and see, Sheet Metal Workers, 92 L.Ed.2d at 372, 54 
U.S.L.W. at 4991.

In November 1985, an Interim Order was agreed to by the 
parties, except for the Schneider intervenors, that provided for 
the promotion of all those on the eligible list plus additional 
Hispanics and blacks to offset the adverse impact of the

This Court described the alternatives as follows:
[A] district court may find it necessary to order interim hiring or 
promotional goals pending the development of non-discriminatory 
hiring or promotion procedures. In these cases, the use of numerical 
goals provides a compromise between two unacceptable alterna­
tives: an outright ban on hiring or promotions, or continued use of 
a discriminatory selection procedure.

Sheet Metal Workers v. E.E.O.C., 478 U.S. ___ , 92 L.Ed.2d 344,
372, 54 U.S.L.W. 4984, 4991 (1986) (Brennan, J. joined by Marshall, 
J., Blackmun, J., and Stevens, J., plurality opinion).



5

examination. (Interim Order, HR 19).12 When all the language 
to the settlement had been finalized and all those affected by 
its terms consulted,13 the final settlement was entered into on 
January 23, 1986. (JA 52).

The District Court held hearings on the settlement in April 
1986. The settlement was supported by the parties to the 
settlement. The Schneider intervenors opposed the settlement 
and argued that the quotas violated the equal protection clause 
of the Fourteenth Amendment. (Schneider Objections, HR 
47). The Costello petitioners appeared and also filed written 
objections. (JA 183-206, A 100-106). They argued that the 
settlement was acceptable as far as it went, but that it should 
go further and provide for their promotions. Regardless of the 
time it took, all the petitioners were to be promoted, delaying 
if need be a new examination. (JA 205-206).

The District Court Judge interrupted the presentation by 
petitioners’ attorney several times. The Court urged him to tell 
the Court his specific objections to the settlement. (Transcript 
of Hearing, HR 110 at 33). When he argued that the Four­
teenth Amendment required that his clients be promoted, the 
Judge told him he was not stating the law and what he said 
made little sense:

You are now making an argument, but that’s not the law 
and you are a lawyer. That makes no sense . . . You are

12 The original cut-off for placement on the eligible list was based on 
producing a list with 1000 names, the expected need for sergeants. The 
cut-off was not based on a determination that those not on the list 
were not qualified. (JA 57-58). Relief is limited to qualified Hispanics 
and blacks. (JA 70, Paragraph III A of the Settlement). All promo­
tions are subject to Sections 50 and 61 of New York Civil Service Law. 
Id. These provisions provide that the NYPD need only appoint 
qualified candidates and can pass over or reject those not qualified. 
Moreover, because promotions of anyone, beyond the 1000 contem­
plated by the settlement, including minorities is at the discretion of the 
NYPD, the NYPD can stop making promotions when it believes there 
are no more qualified minorities. See, JA 70.

13 See, e.g., Affidavit of Vice President of SBA, JA 92; Affidavits of 
SBA members, Sheilds JA 165, Pulaski JA 172; and, Goodstein 
Affidavit JA 107.



6

now making an argument that’s contrary to the rules of 
law that govern decisions under Title VII. And I can’t 
deal with that. You are expressing a personal opinion. I 
can’t deal with that. 1 have to deal with what I understand 
the law to be . . .

A 105.14

The District Court approved the settlement. It found it fair 
and adequate and consistent with Title VII and the United 
States Constitution. (A 97-98). The Court rejected the Costello 
petitioners’ argument holding:

Some of the objectors allege that they too should 
benefit by the settlement and be protected since they 
scored as high or higher than some minority members 
being selected for promotion pursuant to the settlement. 
While such personal dissatisfaction with the agreement is 
understandable, there has been no showing of the test’s 
disparate racial impact on any of the white applicants 
who object to not being placed on the eligible list. Hence 
Title VII’s requirement of remediation is not brought into 
play. Berkman v. City o f  New York, 705 F.2d 584, 597 
n.15 (2d Cir. 1983). Here the settlement deals merely with 
correction of the disparate impact of Examination #2548. 
Whether the settlement solution is approved or disap­
proved, those white applicants who did not score high 
enough to be placed on the eligible list will have no viable 
claim to [be] added to the list and no legal basis for 
challenging their failure to qualify for promotion.

A 98-99.

The Costello petitioners moved for reconsideration of the 
District Court’s decision in light of this Court’s opinion in
Wygant v. Jackson Board o f Education, 476 U .S .____, 90
L.Ed.2d. 260, 54 U.S.L.W. 4479 (1986). (Motion, HR 108 and

Soon after the hearing, the District Court ruled on a motion to 
dismiss the Marino complaint which presented the same unfounded 
claim. The Court dismissed the complaint. (A 13).



7

HR 109). That motion was denied. (Memorandum Endorse­
ment on HR 108 and 109, July 10, 1986).

The Costello petitioners15 appealed the entry of the settle­
ment. The Court of Appeals dismissed their appeal as they 
were neither parties below nor sought to intervene. (A 58-79).

The Court of Appeals rejected the three arguments that the 
Costello petitioners raised to support their standing to appeal. 
First, the Court found that they were not named parties or 
intervenors. (A66-67). Moreover, the Court held that petition­
ers did not even have an “interest” in the Hispanic Society 
litigation:

In this case, appellants were not on the original eligible 
list, they have no right to promotion under state law, and 
they do not allege that the examination discriminated 
against them. Even if the settlement were invalidated, 
therefore, they would not be entitled to promotion. Ac­
cordingly, they cannot appeal from the settlement as non- 
parties with an interest in the order below.

A 68. Second, the Court rejected petitioners’ contention that 
they were parties below because the settlement defined the City 
defendants to include all its employees in their official capaci­
ties. (A 69-70). Third, the Court held that the filing of 
objections at the settlement hearing did not give petitioners a 
right to appeal. (A 74). In conclusion, the Second Circuit 
stated:

Appellants’ predicament results from their steadfast re­
fusal to comply with the requirements for intervention set 
forth in Fed. R. Civ. P. 24.

A 75.

Marino v. Ortiz
After the entry of the Interim Order in the Hispanic Society 

litigation (HR 19), which resulted in the promotion of several

15 The Schneider intervenors also appealed but later withdrew their 
appeal. (A 65).



8

Hispanics and blacks not previously on the eligible list, the 
Marino petitioner filed a complaint against the City of New 
York and its officials and agencies. (A 14-29). The complaint 
did not mention the race of the petitioners nor the race of those 
who had been promoted nor even the Interim Order. It simply 
alleged that “some” persons had been promoted with examina­
tion scores like the petitioners. (A 14-29). It was claimed that 
the equal protection clause of the Fourteenth Amendment 
required that all those with scores equal to those that were 
promoted had to be added to the eligible list and all of them 
promoted irrespective of any time limitation. (A 28-29). The 
case was assigned to the District Court Judge who was presid­
ing over the Hispanic Society litigation.

The City moved to dismiss the complaint for failure to state 
a claim for relief and as a collateral attack on the settlement in 
Hispanic Society. (A 30). Their moving papers suggested that 
Marino petitioners intervene in Hispanic Society. (A 37).

Marino petitioners responded to the motion by requesting 
summary judgment. (A 39). They claimed that the complaint 
did not allege racial discrimination and that they only wanted 
to be promoted since they had scores similar to those already 
promoted. (A 48-49).* 15 16 They argued that it was not a collateral 
attack as they were not seeking to have anyone denied a 
promotion.17 Their argument was simply that the Fourteenth 
Amendment required that they be promoted.

On appeal to the Court of Appeals, petitioners also maintained that 
they were not alleging “reverse discrimination.” Appellants’ Brief at 2, 
Marino v. Ortiz, Docket #86-7347, 2d Cir. Now, for the first time, 
petitioners claim racial discrimination. See e.g., Petitioners’ Brief at
15, 28, etc.

Indeed, under the logic of petitioners’ argument all 12,000 who took 
the examination would be promoted. Under the terms of the settlement 
the NYPD can promote only by continuing to offset the disparate 
impact. (JA 70). Thus, if petitioners are promoted, additional minori­
ties must also be promoted. This, in turn, will create a new group of
persons like petitioners who have scores equal to some of the minori­
ties promoted. This could continue until essentially everyone was 
promoted.



9

As stated above, the petitioners had argued this same posi­
tion at the hearings on the settlement in Hispanic Society. The 
District Court adhered to the position it stated at those hear­
ings, that petitioners’ argument was nonsense. In a Memoran­
dum Endorsement the District Court dismissed the complaint 
citing Prate v. Freedman, 430 ESupp. 1373, 1375 (W.D.N.Y.), 
a ff’d mem., 573 F.2d 1294 (2d Cir. 1977), cert, denied, 436 
U.S. 922 (1978). (A 13). Prate was a very similar lawsuit which 
was dismissed as an improper collateral attack on a settlement 
and for the failure to state a claim for relief under the 
Fourteenth Amendment.

The Court of Appeals affirmed the dismissal of the Marino. 
It held that the complaint was an improper collateral attack on 
the Hispanic Society settlement. The Court also held that since 
petitioners had actually presented their claims at the settlement 
hearing in Hispanic Society, and the District Court had consid­
ered and rejected those claims, petitioners were barred from 
relitigating the issue in Marino. 806 F.2d at 1147.18

18 This part of the Opinion was not included in the Appendix. The 
Court of Appeals stated:

Not only did appellants have notice of the proceedings in His­
panic Society and a suggestion to intervene therein, but they 
actually presented their claims at the objector hearing in that case. 
Judge Carter considered appellants’ claims, and found them to be 
without merit. Thus appellants had the opportunity to engage in the 
original lawsuit and actually presented their claims. As we have said 
in an analogous context, “ [t]he efficient and fair administration of 
justice requires that litigation of an issue at some point come to an 
end. And for the appellant, who has had one opportunity already to 
contest the . . . order, the time to relitigate that issue has necessar­
ily run.” Class v. Norton, 505 F.2d 123, 125 (2d Cir. 1974).

806 F.2d at 1147.



10

SUMMARY OF ARGUMENT 

POINT I

The Court should decide this case and not some hypothetical 
case based on different facts. The Court need not decide 
whether a party can be denied his day in court by failing to 
intervene in another prior action. Petitioners here had their day 
in court at the settlement hearing in Hispanic Society, and 
were, thus, properly precluded from having a second day in 
court in Marino. Petitioners’ failure to intervene in Hispanic 
Society merely barred their ability to appeal a decision on the 
merits of their claim. Their failure to intervene, however, did 
not bar them from having their day in court.

Due process requires only that a party be given an opportu­
nity to state his claim and have it resolved. The hearing on the 
settlement provided petitioners with that due process opportu­
nity. They took advantage of it. If a nonparty can be barred 
from bringing a new lawsuit based on his participation through 
a surrogate in a prior case, clearly petitioners who themselves 
appeared and litigated their claim can be barred from proceed­
ing in another lawsuit.

However, if the Court reaches the issue of whether petition­
ers’ claim in Marino should be barred because they failed to 
intervene in Hispanic Society, it should find that under the 
circumstances the complaint was properly dismissed. Where 
there is notice and an opportunity to be heard, as there was 
here, petitioners failure to intervene properly bars their collat­
eral attack.

At issue are the due process rights of petitioners to their day 
in court and the jurisprudential interest in having settlements 
finally and conclusively resolve the claims of all interested 
persons. The process that is due depends on the weighing of 
several factors: (1) the interest of petitioners; (2) the due 
process protections against error that would be provided at a 
settlement hearing as opposed to those available in a separate 
lawsuit; and, (3) the interest in the courts in hearing the matter



11

fully resolved at a hearing on a settlement. Matthews v. 
Eldridge, 424 U.S. 319 (1976). A weighing of these factors 
weighs heavily in favor of precluding petitioners’ collateral 
lawsuit and requiring them to intervene in Hispanic Society to 
have their claim resolved.

The interest of petitioners is very limited, if existing at all. 
Petitioners are only interested in the relief provided in the 
settlement and how they can benefit from it. They were not 
interested in the merits of the Hispanic Society litigation. They 
made no claim of racial discrimination. Their only claim is that 
the Fourteenth Amendment requires that they be promoted 
because others with similar examination scores were promoted.

There are no additional due process safeguards against error 
that would be provided at a hearing on a collateral attack that 
there were not available at the hearing on the settlement. Since 
petitioners’ interest is in the relief provided by the settlement, 
that interest is completely satisfied, as petitioners conceded, by 
the hearing on the settlement. Due process requires an oppor­
tunity to state a legal claim and present evidence if necessary. 
The settlement hearing provided that opportunity.

There is a strong jurisprudential interest in finality. By 
resolving all accrued claims about the relief at the hearing on a 
settlement, the courts minimize the possibility of further litiga­
tion and the possibility of inconsistent results. Almost every 
court that has addressed the issue has found that collateral 
attacks are properly barred.

Petitioners’ complaint was properly dismissed because they 
already had their claims considered and resolved at the settle­
ment hearing. Petitioners should not be permitted to relitigate 
that claim in a separate lawsuit.

Alternatively, the Marino complaint was an improper collat­
eral attack on the settlement. Petitioners failed to intervene in 
Hispanic Society, they cannot bring a separate action seeking 
to assert the same claims that they could have raised through 
intervention.



12

POINT II

The Marino complaint was properly dismissed because of 
petitioners’ lack of standing. The relief provided in Hispanic 
Society was only compliance and make-whole relief to the 
victims of discrimination. The impact of such relief on nonvic­
tims is no bar to such relief. Franks v. Bowman Transportation 
Co., 424 U.S. 747 (1976). Thus, petitioners and other nondis- 
criminatees have no standing to complain about such relief.

Affirmative relief is different. Nondiscriminatees have an 
interest in seeing that affirmative race conscious relief does not 
trammel on their interest. Affirmative relief is provided to 
nonvictims of discrimination. It may provide for promotions 
or hirings at rates higher than simply avoiding disparate 
impact.

Here, the relief only goes to the victims of discrimination 
and only to avoid disparate impact. Under the circumstances, 
it was the only relief that could be provided. It was not 
affirmative relief and, thus, petitioners lack standing to chal­
lenge it.

POINT III

Costello petitioners were not necessary parties to the His­
panic Society litigation. First, petitioners failed to preserve the 
issue for appeal. Second, Rule 19 Fed.R.Civ.P. provides that a 
necessary party must have an “interest relating to the subject 
of the action.” Petitioners’ interest was not in the subject of 
the action, the discrimination of the challenged examination. 
Their interest was only in the relief. See, Rule 20 Fed.R.Civ.P. 
Interest in the relief alone is not sufficient to make petitioners 
a necessary party. Third, petitioners need a legally protected 
interest to be necessary parties under Rule 19, and they have no 
such interest. Petitioners are not necessary parties.



13

ARGUMENT 

POINT I
THE M ARINO  COMPLAINT WAS CORRECTLY 

DISMISSED AS AN IMPROPER 
COLLATERAL ATTACK

The Marino petitioners presented their claims at the objector 
hearing in Hispanic Society. Their claims were considered and 
found to be without merit. They were properly bound by that 
determination. As this Court has stated:

Those who are accorded an opportunity to be heard in a 
judicial proceeding established for determining the extent 
of their rights are properly bound by its outcome, either 
because they chose not to contest the . . . claim or 
because they chose to do so and lost.

McKinney v. Alabama, 424 U.S. 669, 676, 47 L.Ed.2d 387 
(1976); and see, Adams v. Morton, 581 F.2d 1314, 1318 (9th 
Cir. 1978), cert, denied sub nom. Gros Ventre Tribe v. U.S., 
440 U.S. 958 (1979).

The District Court in Hispanic Society held a hearing to 
determine the lawfulness and, because of the race conscious 
provisions, the reasonableness of the settlement.19 At that 
hearing the Court heard the objections of the Schneider inter- 
venors as well as those of petitioners. Both raised concerns 
under the equal protection clause of the Fourteenth Amend­
ment. The Court considered these objections and ruled on 
them. (A 97-99). It found the settlement lawful. Id. That

19 The District Court was required to do so. Kirkland v. New York 
State Department o f Correctional Services, 711 F.2d 1117, 1129 (2d 
Cir. 1983), cert, denied, 465 U.S. 1005 (1984). And now all courts must
do the same. Firefighters v. Cleveland, 478 U.S. _____, 92 L.Ed.2d
405, 54 U.S.L.W. 5005 (1986) and see especially, 92 L.Ed.2d at 429, 54 
U.S.L.W. at 5013. (O’Connor, J. concurring) (“ [A] court should not 
approve a consent decree that on its face provides for racially preferen­
tial treatment that would clearly violate § 703 [of Title VII] or the 
Fourteenth Amendment.”).



14

hearing and that determination were all the process that peti- 
tioners were due.

The petitioners were not formal parties to the Hispanic 
Society litigation because they failed to intervene. That failure, 
despite many suggestions that they do so, merely denied 
petitioners the right to appeal.20 21 The failure to intervene, 
however, did not affect the adequacy of the hearing that 
petitioners were provided on their claims. Even intervening 
nonminority employees and their unions have no more rights 
to challenge the legality of the settlement than were provided to 
petitioners. They had their concerns heard and resolved; they 
cannot block the settlement.22

Having had their due process hearing on their claim, peti­
tioners were properly precluded from proceeding with their 
complaint in Marino,23

20 Firefighters, 92 L.Ed.2d at 428, 54 U.S.L.W. at 5012; Zipes v. Trans 
World Airlines, Inc., 455 U.S. 385, 400, 71 L.Ed.2d 234 (1982). 
Petitioners below essentially conceded that they were satisfied by the 
hearing they received. In their brief in Marino v. Ortiz in the Court of 
Appeals, Marino petitioners stated that because of their interest in the 
settlement, “there was a compelling need to substantively consider 
[their] claims. . .” They went on to say, “This, in fact, was done in 
Hispanic [Society].” They concluded that if they are found to be 
parties in Hispanic Society, they would not pursue their appeal in 
Marino to reinstate their complaint. Appellants’ Brief, Marino v. 
Ortiz, at last 2 unnumbered pages, apparently pages 7 and 8, Docket 
# 86-7347, 2d Cir.

21 United States ex. rel. Louisiana v. Jack, 244 U.S. 397, 402 (1917). 
Any number of procedural failures can lead to the denial of the right 
to appeal. See. e.g., Rules 4 and 31 of the Federal Rules of Appellate 
Procedure.

22 Firefighters, 92 L.Ed.2d at 428, 54 U.S.L.W. at 5012; Kirkland, 711 
F.2d at 1126.

23 The claim presented in Marino was the same one presented and 
resolved at the hearing on the settlement. Thus, both doctrines of 
preclusion, res judicata and collateral estoppel, apply. Montana v. 
United States, 440 U.S. 147, 153 (1979). Unlike the United States in 
Montana, petitioners actually appeared in both actions, and, thus 
presented the same claim for relief. Id. 440 U.S. at 154.



15

A fundamental precept of common-law adjudication, 
embodied in the related doctrines of collateral estoppel 
and res judicata, is that a “right, question or fact dis­
tinctly put in issue and directly determined by a court of 
competent jurisdiction . . . cannot be disputed in a sub­
sequent suit between the same parties or their privies. . 
Southern Pacific R. Co. v. United States, 168 U.S. 1, 48- 
49, 42 L.Ed. 355, 18 S.Ct. 18 (1897).

Montana v. United States, 440 U.S. 146, 153 (1979). There is 
no dispute that the claim put in issue and resolved in Hispanic 
Society is the same claim raised in Marino. And there is no 
dispute that the Costello petitioners and the Marino petitioners 
are the same parties. Therefore, the Marino complaint was 
properly dismissed as an improper24 collateral attack. The 
principal reasons for preclusion were properly served here:

To preclude parties from contesting matters that they 
have had a full and fair opportunity to litigate protects 
their adversaries from the expense and vexation attending 
multiple lawsuits, conserves judicial resources, and fosters 
reliance on judicial action by minimizing the possibility of 
inconsistent decisions.

Montana, 440 U.S. at 153-154 [footnote omitted].

This Court has barred lawsuits by others who were not 
formally parties in a prior litigation where their surrogates 
have represented their interests. Montana-, Souffront v. La 
Compagnie Des Sucreries, 217 U.S. 475, 54 L.Ed 846 (1910).25

24 See generally, IB Moore’s Federal Practice (I 0.405[4.-l] (1984 ed.) 
for a discussion of the bases for proper collateral attacks. Collateral 
attacks are ordinarily limited to situations where the prior judgment is 
not valid, where it is “void, i.e. a judicial nullity.” Id. at 196.

25 See also, IB Moore’s Federal Practice 1| 0.411 [6] at 444 (1984 ed.):
[I]f a non-party who thus participates in litigation has an interest 
sufficiently close to the matter in litigation, and has adequate 
opportunity to litigate in support of or in defense against the cause 
of action on which the suit is based, the policies underlying the



16

Here the exact same party was involved in both lawsuits, 
preclusion is clearly appropriate.

In addition, although this Court need not reach the issue, the 
failure of petitioners to intervene in the Hispanic Society 
litigation serves as a bar to their pursuing a separate lawsuit.26

doctrine of judicial finality require that the participating non-party 
should be bound by the resulting judgment to the same extent as 
though he were a party to the action.

Collateral attacks on judgments entered in employment discrimina­
tion cases have been dismissed where the party filing the collateral 
attack failed to intervene or failed to intervene in a timely fashion in 
the prior case: Thaggard v. City o f Jackson, 687 F.2d 66 (5th Cir.
1982) , cert, denied sub nom., Ashley v. City o f Jackson, 464 U.S. 900
(1983) ; Dennison v. City o f Los Angeles Department o f Water and 
Power, 658 F.2d 694 (9th Cir. 1981); Prate v. Freedman, 430 F. Supp. 
1373 (W.D.N.Y.), a ff’d., 573 F.2d 1294 (2d Cir. 1977), cert, denied, 436 
U.S. 922 (1978); O ’Burn v. Shapp, 70 F.R.D. 549 (E.D. Pa. 1976), 
a ff ’d mem sub nom. Lutz v. Shapp, 546 F.2d 417 (3d Cir. 1976), cert, 
denied, 430 U.S. 968 (1977). These decisions have been cited approv­
ingly in dicta by other courts: Grann v. City o f Madison, 738 F.2d 786, 
796 (7th Cir.), cert, denied, 469 U.S. 918 (1984); Stotts v. Memphis 
Fire Dept., 679 F.2d 541 (6th Cir. 1982), rev’d on other grounds sub 
nom. Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984); 
Culbreath v. Dukakis, 630 F.2d 15, 22 (1st Cir. 1980); see contra, 
United States v. Jefferson County, 720 F.2d 1511, 1518 (11th Cir.
1983) . Cf. Corley v. Jackson Police Department, 755 F.2d 1207, 1210 
(5th Cir. 1985) (dicta questioning 5th Circuit’s Thaggard rule).

In other types of litigation, courts including this Court have dis­
missed claims based on the failure to intervene: Penn Central and 
N&W Inclusion Cases, 389 U.S. 486, 505-506 (1968); Mitchell v. City 
o f  Los Angeles, 753 F.2d 86 (9th Cir. 1985); National Wildlife Federa­
tion v. Gorsuch, 744 F.2d 963 (3d Cir. 1984); Safir v. Dole, 718 F.2d 
475, 483 (D.C. Cir. 1983) (Scalia, J.), cert, denied, 467 U.S. 1206
(1984) ; Society Hill Civic Association v. Harris, 632 F.2d 1045 (3d Cir. 
1980) and see, Black and White Children o f Pontiac School System v. 
School District o f the City o f Pontiac, 464 F.2d 1030 (6th Cir. 1972). 
Other courts in dicta have rejected this reasoning: Consumers Union o f  
United States v. Consumer Product Safety Commission, 590 F.2d 
1209, 1222 (D.C. Cir. 1978), rev’d sub nom. GTE Sylvania, Inc. v. 
Consumers Union, Inc., 455 U.S.375 (1980).

In all the cases cited above except Thaggard, the parties who were 
barred from bringing collateral actions, had an accrued interest in the



17

In Hispanic Society, the District Court necessarily had to 
decide and did decide whether the settlement unnecessarily 
trammeled the interests of non-minorities and therefore was 
unlawful under the Title VII and the Fourteenth Amendment.* 27 
Thus, the claims of petitioners under the Fourteenth Amend­
ment concerning the impact of the settlement on them would 
be considered and resolved. Petitioners were certainly aware of 
the hearing. Moreover, petitioners were told to intervene in 
Hispanic Society. (A 37). Yet, petitioners steadfastly refused to 
intervene, either before the settlement hearings, or at the 
hearings or even after judgment or on appeal.28 (A 75). As this 
Court stated in McKinney, those who chose not to take 
advantage of “an opportunity to be heard in a judicial pro­
ceeding established for determining the extent of their rights 
are properly bound by its outcome.” Id., 424 U.S. at 676.29

prior litigation and a timely opportunity to intervene in that action. 
Thus, with the exception of plaintiffs in Thaggard, no one was barred 
from bringing a separate collateral attack who did not have an 
opportunity to participate in the main action.

27 Kirkland, 711 F.2d at 1129.

28 After the decision approving the settlement, the petitioners moved 
for reconsideration in light of this Court’s decision in Wygant. (Mo­
tion, HR 108 and 109). That motion was opposed on, among other 
grounds, the basis that petitioners had not intervened and, therefore, 
had no standing to make the motion. (Plaintiffs’ Memo in Opposition, 
HR 112). Yet, petitioners still took no action to intervene. See, United 
Airlines, Inc. v. McDonald, 432 U.S. 385, 53 L.Ed.2d 423 (1977) 
(postjudgment intervention upheld).

Even after motions were made to dismiss the appeal, petitioners 
took no action to intervene. See, Bryant v. Yellen, 447 U.S. 352, 366, 
65 L.Ed.2d 184 (1980) (invention in Court of Appeals upheld).

29 In McKinney, the petitioner had no notice of a civil proceeding to 
determine whether a certain magazine was obscene. The Court held 
that he therefore could not be bound by that determination in a 
subsequent criminal proceeding. The Court, however, stated that with 
notice, petitioner may have been bound. McKinney, 424 U.S. at 676- 
677.

Here, petitioners had actual notice of the prior proceedings, and 
while they appeared, they failed to intervene.



18

It is important to recognize the narrowness of the position 
developed in this brief and needed to decide this case. In any 
case of preclusion, there is always a balancing between the 
rights of a party to his day in court, his due process rights, and 
the jurisprudential interests in finality, consistency, and judicial 
economy.30 Where a party has his day in court or the opportu­
nity to have his day, his rights to due process are satisfied, and 
the interests of finality bar a second day in court. This is so 
even if there is reason to believe that the decision rendered was 
wrong. See, e.g. Federated Department Stores Inc. v. Moitie, 
452 U.S. 394, 69 L.Ed.2d 103 (1981).

Part of that balancing process is determining what process is 
due. See Brown v. Felsen, 442 U.S. 127, 60 L.Ed.2d 767 
(1979). The factors to be considered are: 1) what is the interest 
of petitioners; 2) what risk of error is there if those interests are 
considered and resolved at a hearing on a settlement versus in a 
collateral lawsuit; and 3) what is the interest of the courts in 
having the matter conclusively resolved in one hearing on the 
settlement versus potential multiple hearings brought on by 
collateral attacks. See Matthews v. Eldridge, 424 U.S. 319, 
335, 47 L.Ed.2d 18 (1976).

Here, the interest of petitioners is very limited, if they have 
any interest at all. See, Point II, infra. Their interest arose only 
because they believed that they could benefit from the settle­
ment. They had no interest in the merits of the Hispanic 
Society litigation because whether plaintiffs or defendants 
prevailed would not have changed their status as not being on 
the eligible list.31

The same can be said for other jurisdictional dismissals based on 
judicial discretion. Colorado River Water Conservation District v. 
U.S., 424 U.S. 800, 47 L.Ed.2d 483 (1976); Arizona v. California, 460 
U.S. 605, 75 L.Ed.2d 318 (1983).

Perhaps the simplest measure of this lack of interest is to consider 
what party status would appropriately fit petitioners if they had sought 
intervention before the settlement—intervenor-plaintiffs or intervenor- 
defendants. Would they file a complaint or an answer as part of their 
motion. Rule 24(c) Federal Rules of Civil Procedure.



19

The settlement hearing would and did provide petitioners 
with an adequate hearing on their claim.32 There would be no 
additional due process elements that would have attached to 
their collateral lawsuit. The question to be resolved was solely 
a legal one—whether the equal protection clause required that 
petitioners be promoted as well under the settlement. Even if 
there were factual issues, settlement hearings can and have 
provided for presentation of evidence. The notice of the 
hearings, herein, provided that objectors could present evi­
dence. (HR 20, Appendix A at 8). In this case, all the parties 
including the objecting Schneider intervenors submitted affida­
vits. (HR 47, 75, 91, 94-103).

There was more than adequate notice of the settlement 
hearings. As with most settlements, notice of the hearings was 
sent to all those on the eligible list and was posted in all the 
precincts. (JA 84; Settlement, HR 20, Appendix A).33 Not only 
did petitioners appear and file papers,34 but almost 70 other 
individual police officers not on the eligible list also filed 
objections. (Letters to the Court, HR 20-25, 27-45, 48-74, 76- 
90, 92). A collateral attack proceeding would provide no 
additional notice and may even provide less. Notice of any 
hearings in a collateral lawsuit would ordinarily go only to the 
parties. Many others who are similarly situated to those bring­
ing the collateral attack would have no notice.

See, footnote 20, supra.

This “notice [was] reasonably calculated, under all the circum­
stances, to apprise interested parties of the pendency of the action and 
afford them an opportunity to present their objections.” Mullane v. 
Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 94 L.Ed. 865 
(1950). Those with concrete interests and those on the eligible lists were 
sent notice of the hearings on the settlement. Others, like petitioners, 
were also provided notice through the posting of notice in police 
precincts. Under the circumstances and given the differing interests of 
those potentially affected, it was reasonably calculated to provide 
actual notice. Id.

Because petitioners actually appeared, there can be no claim of a due 
process violation. See National Equipment Rental v. Szuknent, 375 
U.S. 311, 11 L.Ed.2d 354 (1964).



20

Finally, the interest in the courts in finality and judicial 
economy is great. Almost every court that has addressed the 
question has recognized the benefit of barring collateral at­
tacks. (See cases cited above in footnote 26). They have all 
expressed the problems of entertaining a never ending stream 
of such actions. By requiring those with an interest in a 
settlement to appear at one hearing, the courts can finally 
dispose of the matter.35

A weighing of the above factors weighs strongly in favor of 
requiring petitioners, and others like them who oppose the 
entry of a settlement of a Title VII claim, to intervene and 
appear at the hearings on the settlement. Those like petitioners 
who appear and have their claims considered are properly 
bound. With proper notice, as there was here, those who fail to 
appear or to intervene are also properly bound. The hearing on 
a settlement provides an adequate due process opportunity to

Since petitioners’ interest in the settlement had accrued before the 
entry of the final settlement, the Court need not address the rights of 
persons whose interest has not yet accrued. See e.g., Ashley v. City o f  
Jackson, 464 U.S. 900 (1983) (Rehnquist, J. joined by Brennan, J. 
dissenting from the denial of certiorari.) However regardless of 
whether the interest in the settlement accrued after the entry of the 
settlement, any claim for relief based on a settlement should be raised 
in a timely motion to intervene and not in a separate lawsuit. That 
intervention can and should properly be limited to issues that had not 
been previously resolved. Howard v. McLucas, 782 F.2d 956 (11th Cir. 
1986); Kirkland, 711 F.2d at 1125-1128. But even if separate collateral 
attacks on judgments are permitted for those whose interest accrued 
after a settlement was entered, those challenging the settlement should 
be bound by res judicata to the extent that others similarly siutated 
have raised and litigated the same claims. Los Angeles Unified School 
District v. Los Angeles Branch o f  NAACP, 714 F.2d 935, 942-945 (9th 
Cir. 1983); Bronson v. Board o f Education, 525 F.2d 344, 349 (6th Cir. 
1975), cert, denied, 425 U.S. 934 (1976). To do otherwise would 
require an employer and the beneficiaries of the settlement to defend 
an endless number of lawsuits by each employee who was impacted by 
affirmative race conscious relief. See, id. This, of course, would not 
bar such challenges altogether. To the extent there has been a change in 
the law or in the circumstances, and the injunctive terms of the 
settlement are still in force, anyone can make a timely motion to 
intervene combined with a Rule 60(b)(5) Fed. R. Civ. P. motion for 
relief from the judgment.



21

present objections to the terms of a settlement. There are no 
additional due process safeguards that are available in a 
collateral attack. The jurisprudential interests in finality and 
the avoidance of a multiplicity of litigation with the potential 
for conflicting results clearly outweighs any interest in having 
objector’s claims heard in separate lawsuits.

The choice presented in this case is between a hearing on a 
settlement or hearings in collateral lawsuits. Due process re­
quires that there be an adequate opportunity to be heard for 
those who object to the terms of a settlement. It does not 
require that that opportunity be provided in a collateral law­
suit. The courts have and should require that those objections 
be presented at the hearing on the settlement. Petitioners were 
provided that opportunity, and their claim was considered and 
rejected. The Court of Appeals properly barred another law­
suit raising that same claim.

This Court need not reach the broader issue of whether the 
Marino complaint should have been dismissed because peti­
tioners failed to intervene in Hispanic Society. However, if it 
does so, such a dismissal was the proper exercise of discretion 
and consistent with due process. The interests of finality 
outweigh any interest of petitioners to have their claim consid­
ered separately from the hearing provided on the settlement.



22

POINT II

ALTERNATIVELY M ARINO  SHOULD BE AFFIRMED 
BECAUSE PETITIONERS LACK STANDING

Marino petitioners lacked standing36 to file their complaint. 
The provision of nonaffirmative compliance and make-whole 
relief in a Title VII lawsuit creates no interest in that relief by 
nonbeneficiaries. Such relief merely ends the discriminatory 
practice and restores the victim of discrimination to the posi­
tion he or she would have been in absent discrimination.

The normal elements of this non-affirmative relief include 
hiring or promotion or reinstatement with back pay and back 
seniority. Ablemarle Paper Co. v. Moody, 422 U.S. 405, 45 
L.Ed.2d 280 (1975); Franks v. Bowman Transportation Co., 
424 U.S. 747, 47 L.Ed.2d 444 (1976).37 The relief provided in 
this case is merely compliance and make-whole relief.38 
Berkman v. City o f  New York, 705 F.2d 584, 595-596 (2d Cir. 
1983). While race conscious, it is not affirmative. It provides a 
remedy only to those who are victims of the discrimination, 
those who were adversely affected by the challenged examina­
tion, and ends when a new examination is given. Id.

36 Although the Marino petitioners’ lack of standing was raised in 
opposition to the petition for certiorari, it was not raised in the Court 
of Appeals. Nevertheless, this Court should consider this jurisdictional 
issue. Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 209, 10 
L.Ed.2d 297 (1963).

37 The courts have uniformly not required that any nonvictim be 
bumped or lose his or her job in order to provide relief to a 
discriminatee. Firefighters v. Stotts, 467 U.S. 561, 579 n . l l ,  81 
L.Ed.2d 483 (1984).

38 Compliance relief is provided by requiring the NYPD to eliminate 
the adverse impact of discriminatory examination if it wants to 
promote any police officers. Only the victims of the discrimination, 
those adversely affected, are benefitted. (JA 70).

Make-whole relief in the form of back seniority and partial back pay 
is provided to those Hispanics and blacks who would have been 
promoted sooner but for the discrimination. (JA 76-79).



23

Make-whole relief should not be denied except “for reasons 
which, if applied generally, would not frustrate the central 
statutory purposes of eradicating discrimination . . . and 
making persons whole for injuries suffered through past dis­
crimination.” Ablemarle, 420 U.S. at 421; Franks, 424 U.S. at 
747. The impact of such relief on those employees who were 
not the victims of the discrimination is not a reason for 
denying make-whole relief. Franks, 424 U.S. at 774-775. 
Therefore, nonbeneficiaries like petitioners have no standing to 
challenge the relief provided in the settlement.

Affirmative relief, on the other hand, does not merely end 
the discriminatory practices. Sheet Metal Workers, 92 L.Ed.2d 
at 370, 54 U.S.L.W. at 4991. It provides relief to nonvictims of 
discrimination. Id. 92 L.Ed.2d at 368-369, 54 U.S.L.W. at
4990. Moreover, the race conscious hiring or promotion ratios 
are not tied to a nondisparate-impact percentage, but can 
exceed that percentage to reach some desired goal. United
States v. Paradise, 480 U.S. ___ , 94 L.Ed.2d 203, 55
U.S.L.W. 4211 (1987). Affirmative relief is awarded to provide 
effective relief against a recalcitrant employer or union who 
has a history of long standing and egregious discrimination 
and to eliminate the lingering effects of pervasive discrimina­
tion. Sheet Metal Workers, 92 L.Ed 2d at 369, 52 U.S.L.W. at
4991.

Where affirmative race conscious relief is ordered, non­
minorities have standing to insure that the relief does not 
unnecessarily trammel on their interests. Firefighters, 92 
L.Ed.2d at 428, 54 U.S.L.W. at 5013; Kirkland, 711 F.2d at 
1128. However, no affirmative relief was awarded here.

For example, if a court determined that an individual Puerto 
Rican was not hired for reasons of race and ethnicity, the court 
would require that the Puerto Rican be hired with back pay 
and back seniority. A white who had been hired in the interim, 
between the denial of employment to the Puerto Rican and the 
court ordered relief, would have no standing to challenge that 
relief, on grounds of “reverse” discrimination, either through a



24

separate lawsuit or through attempted intervention in the 
discrimination case.39 See Freeze v. Aro, Inc., 503 F.Supp. 
1045 (E.D. Tenn. 1980). The impact of such relief on the 
white’s seniority could be no bar to the provision of that relief. 
Franks. Therefore, he would have no standing to complain.

The absence of standing is even clearer in this case than it 
would be in most cases challenging make-whole and compli­
ance relief. Those challenging race conscious relief are usually 
non-minorities who have some forseeable expectation of em­
ployment or promotion because they are on a list to be 
appointed or promoted.40 They ordinarily assert some claim of 
racial discrimination. Here, petitioners were not on the eligible 
list for promotion. They had no expectation of promotion. 
Their only expectation was a false one, that somehow they 
could benefit in the same way as the victims of discrimina­
tion.41 They asserted no claim of racial discrimination. Both 
the District Court and the Court of Appeals found that they 
lacked any cognizable interest. (A 98-99, A 68).

Petitioners here have no standing to challenge the nonaffir­
mative relief provided in this case. The relief simply provides 
for the elimination of the adverse impact of the challenged 
examination. It is not affirmative relief and thus cannot 
unnecessarily trammel on the interests of nonbeneficiaries. 
Other than to promote no one from the discriminatory exami­
nation, it was the only available relief. Sheet Metal Workers, 
92 L.Ed.2d at 372, 54 U.S.L.W. at 4991. The settlement could 
neither benefit nor harm petitioners’ chances of promotion 
from the challenged examination.

39 If there was a settlement leading to this result, those non-minorities 
affected by the seniority may have standing to challenge the relief as 
collusive or entered into merely as a pretext for discrimination. See,
E. E.O.C. v. McCall Printing Corp., 633 F.2d 1232 (6th Cir. 1980)

40 See, e.g., Paradise; Kirkland; Thaggard.

41 Relief of that type has been consistently rejected. See, Berkman, 705
F. 2d at 597 n. 15; Patterson v. Newspaper and Mail Delivers' Union, 
514 F2d 767, 772-773 (2d Cir. 1975) cert, denied, 427 U.S. 911 (1976); 
Rios v. Enterprise Association o f Steamfitters, 520 F2d 352, 356 (2d 
Cir. 1975).



25

Petitioners lacked standing to file their complaint, and the 
complaint should properly have been dismissed for lack of 
jurisdiction. Warth v. Seldin, 422 U.S. 490, 45 L.Ed.2d 343 
(1975). This Court should affirm the dismissal of the Marino 
complaint on jurisdictional grounds without reaching the issue 
presented.

POINT III
COSTELLO PETITIONERS ARE NOT NECESSARY 

PARTIES UNDER RULE 19 FED. R. CIY. P.

The issue of whether Costello petitioners were necessary 
parties under Rule 19 of the Federal Rules of Civil Procedure 
was not preserved for appeal by petitioners.42 It was neither 
raised by petitioners nor ruled on by the Court of Appeals.43

Respondents argued in the Court of Appeals that Costello 
petitioners had no standing to appeal. Costello petitioners 
raised several arguments in response but did not raise the Rule 
19 issue. The Court of Appeals dismissed the appeal without 
addressing Rule 19 since it had not been raised by petitioners.44 
It has not been the practice of this Court to decide issues that

Costello petitioners also renew arguments that were raised in the 
Court of Appeals. However, the only question presented in the petition 
for certiorari was whether petitioners were necessary parties under 
Rule 19 Fed. R. Civ. P.

Respondents’ brief in opposition to certiorari pointed this out to the 
Court. (Joint Brief in Opposition at 12 n.4).

Petitioners did claim to be “necessary parties” in response to 
motions to dismiss their appeal. However, these motions were denied 
without prejudice to renew the arguments before the panel that heard 
the appeal. (JA 8, entry for August 28, 1988). As stated above, when 
standing was raised again in the briefs on appeal, petitioners did not 
rely on Rule 19.



26

have not been raised or considered below.45 Adickes v. Kress & 
Co., 398 U.S. 144, 147 n.2, 26 L.Ed.2d 142 (1970). There is no 
reason for an exception in this case.46

Moreover, considerations relevant to Rule 19 make it partic­
ularly inappropriate for it to be addressed for the first time by 
an appellate court. The ordinary procedure for joinder ques­
tions is to have them raised by the parties or by the District 
Court. Here the issue is sought to be raised by a nonparty for 
the first time in this Court. Costello petitioners knew about the 
Hispanic Society litigation. If they believed that they had an 
interest sufficient under Rule 19 to have them joined as a party, 
they should have intervened or raised the issue in the District 
Court. Petitioners should stand in the same position as a losing 
defendant who fails to raise Rule 19 joinder; they should be 
barred from raising it on appeal. See, Provident Tradesmens 
Bank & Trust Co. v. Patterson, 390 U.S. 102, 110 (1968); 
Kirkland v. New York Department o f  Correctional Services, 
520 F.2d 420, 424 (2d Cir.1975), cert, denied, 429 U.S. 823 
(1976).

However, even if this Court considers the issue, the conten­
tion of petitioners is without merit. Costello petitioners had no 
interest in the claims or defenses of the parties to Hispanic 
Society. As discussed fully in Point II, petitioners only sought 
to assert an interest when relief was provided. At that point, 
petitioners claimed that they should benefit from that relief. 
Petitioners’ interest in the relief provided to plaintiffs is not 
one encompassed by Rule 19.

45 The issue should not be addressed at all where none of the parties 
have appealed and the appeal has been filed by an unsuccessful 
applicant for intervention. Moots v. Commonwealth o f  Pennsylvania, 
495 F.2d 1095, 1096 n.3 (3d Cir.), cert, denied, sub nom. Churchill 
Area School District v. Moots, 419 U.S. 884 (1974).

46 The failure to join an indispensable party is not a jurisdictional 
defect. Elmendorf v. Taylor, 10 Wheat (23 U.S.) 152, 6 L.Ed. 289 
(1825); see, Wright, Miller & Lane, 7 Federal Practice and Procedure 
§ 1611 (1986 ed.)



27

Petitioners point to section (a)(2)(ii) of Rule 19 as the 
provision covering their interest. (Petitioners’ Brief at 20). 
That section provides:

(a) PERSONS TO BE JOINED IF FEASIBLE. A person 
who is subject to service of process and whose joinder will 
not deprive the court of jurisdiction over the subject 
matter of the action shall be joined as a party in the 
action if . . . (2) he claims an interest relating to the 
subject o f the action and is so situated that the disposition 
of the action in his absence may . . . leave any of the 
persons already parties subject to a substantial risk of 
incurring double, multiple, or otherwise inconsistent obli­
gations by reason of his claimed interest.

Rule 19 Federal Rules of Civil Procedure [Emphasis added]. 
As the emphasized portion states, a person must claim an 
“interest relating to the subject of the action.” In contrast Rule 
20 of the Federal Rules of Civil Procedure provides for the 
permissive joinder as plaintiffs or defendants of persons with 
an interest in the “relief demanded.”47 Petitioners have no 
interest in the “subject of the action,” whether the challenged 
sergeants examination discriminated against Hispanic and 
black police officers in violation of Title VII. See, Rios v. 
Enterprise Association o f Steamfitters, 520 F.2d 352, 357 (2d

47 Rule 20 Fed. R. Civ. P. provides in relevant part:
(a) PERMISSIVE JOINDER. All persons may join in one action 

as plaintiffs if they assert any right to relief jointly, severally, or in 
the alternative in respect of or arising out of the same transaction, 
occurrence, or series of transactions or occurrences and if any 
question of law or fact common to all these persons will arise in the 
action. All persons . . . may be joined in one action as defendants 
if there is asserted against them jointly, severally, or in the alterna­
tive, any right to relief in respect of or arising out of the same 
transaction, occurrence, or series of transactions or occurrences and 
if any question of law or fact common to all defendants will arise in 
the action. A plaintiff or defendant need not be interested in 
obtaining or defending against all the relief demanded. Judgment 
may be given for one or more of the plaintiffs according to their 
respective rights to relief, and against one or more defendants 
according to their respective liabilities.



28

Cir. 1975).48 Their claimed interest is only in the “relief” 
provided in Hispanic Society. Thus, while they may be subject 
to permissive joinder as plaintiffs or defendants, they are not 
necessary parties.

Finally, petitioners need a “legally protected interest” to be a 
necessary party under Rule 19. See 3A Moore’s Federal Prac­
tice 1 19.07[2.-0] at 19-19 (1987 ed.).49 Even if petitioners were 
on the eligible list, they would have no legally protected right 
to promotion.50 As persons not on the eligible list, they clearly 
have no legally protected interest.51

Petitioners are not necessary parties under Rule 19.

48 Even nonminorities on existing eligible lists lack sufficient interest to 
be necessary parties under Rule 19. Kirkland v. New York State 
Department o f Correction, 520 F.2d 420 (2d Cir. 1975); cert, denied, 
429 U.S. 823 (1976); Jackson v. Sargent, 394 ESupp. 162, 173 
(D.Mass), a ff’d on other grounds, 526 F.2d 64 (1st Cir. 1975). Nor do 
their unions have to be joined. Culbreath v. Dukakis, 630 F.2d 15, 24 
n.14 (1st Cir. 1980); Hibbler v. Birmingham Bankhead Highway, Inc., 
496 F.2d 1171 (5th Cir. 1974); and see, National Licorice Co. v. 
N .L.R.B., 309 U.S. 350, 84 L.Ed. 799 (1940);

49 Northern Alaska Environmental Center v. Model, 803 F.2d 466, 468 
(9th Cir. 1986); Boggs v. Darr, 103 F.R.D 526 (D. Kan. 1984); Special 
Jet Services, Inc. v. Federal Insurance Co., 83 F.R.D. 596 (W.D. 
P a .1979), rev’d on other grounds, 643 F.2d 977 (3d Cir. 1981).

50 Cassidy v. Municipal Civil Service Commission, 37 N.Y.2d 526, 529 
(1975).

51 The interest needed to be a necessary party under Rule 19 is not the 
same as the interest needed to intervene under Rule 24. Smuck v. 
Hobson, 408 F.2d 175, 178 (D.C. Cir. 1969). Thus, petitioners may 
have had sufficient interest to intervene, but see Point II, supra.



29

CONCLUSION

This Court should affirm the decisions below.

Dated: August 21, 1987

Respectfully submitted,

L in d a  F l o r e s  
K e n n e t h  K im e r l in g  
Puerto Rican Legal Defense 

& Education Fund, Inc.
99 Hudson Street
New York, New York 10013
(212) 219-3360

Attorneys fo r  Respondents 
The Hispanic Society, et al.

D a v id  P o l l a c k  
3d Year Law Student,
Brooklyn Law School, 
on the brief.



RECORD PRESS, INC., 157 Chambers Street, N.Y. 10007 (212) 619-4949