Marino v New York City Police Department Brief for the United States as Amicus Curiae

    No. 86-1415

Jn %  (Hmxt nf %  MnxUb Btutm
October Term, 1987

Evelyn Marino, et al., petitioners 

v.

Juan U. Ortiz, et al.

W ayne Costello, et al ., petitioners 

v.

T he New Y ork City Police Department, et al.

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

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

Charles Fried 
Solicitor General

Wm . Bradford Reynolds
Assistant Attorney General

Donald B. Ayer
Deputy Solicitor General

Roger Clegg
Deputy Assistant Attorney General 

Glen D. Nager
Assistant to the Solicitor General

David K. Flynn 
Dennis J. Dimsey

Attorneys
Department of Justice 
Washington, D.C. 20530 
(202) 633-2217



QUESTIONS PRESENTED

1. Whether individuals who have failed to intervene 
in an ongoing Title VII suit may be barred from chal­
lenging employment-related actions taken pursuant to 
consent orders entered in that litigation.

2. Whether individuals who have not moved to make 
themselves a formal party to an ongoing Title VII suit 
may appeal the entry of a consent decree in that litiga­
tion, certain terms of which the individuals find 
objectionable.

(i)





Interest of the United States....................... .....................  1

Statement................................................................................. 2

Summary of argum ent..........................................................  8

Argument:

I. Individuals who failed to intervene in an on­
going Title VII suit are nevertheless entitled to 
pursue an action challenging employment- 
related actions taken pursuant to consent orders 
entered in the original suit _____________ ______  11

II. Individuals who have not moved to make them­
selves a formal party to an ongoing Title VII 
suit are not entitled to appeal the entry o f a 
consent decree in that litigation ..................... ..... 26

Conclusion........................ ................ ................................. . 30

TABLE OF AUTHORITIES
Cases:

Adams v. Bell, 711 F.2d 161 (D.C. Cir. 1983),
cert, denied, 465 U.S. 1021 (1984) ________ ___  19

Adams V. Proctor & Gamble Mfg., 697 F.2d 582 
(4th Cir. 1983), cert, denied, 465 U.S. 1041
(1984) __________          16

Alexander V. Gardner-Denver Co., 415 U.S. 36
(1974)..........      16

Ashley v. City of Jackson, 464 U.S. 900 (1983) ..13, 21, 26 
Austin v. County of DeKalb, 572 F. Supp. 479

(N.D. Ga. 1983).... .................... ............. .................  16
Auto Workers V. Schofield, 382 U.S. 205 (1965).... 27
Bank of America v. M/V Executive, 797 F.2d 772

(9th Cir. 1986)................................     29
Bender V. Williamsport Area School Dist., 475 U.S.

534 (1986) ..................................................................  27,29
Black and White Children V. School District, 464

F.2d 1030 (6th Cir. 1972)_______ _________ ___  6,16

(HI)

TABLE OF CONTENTS
Page



IV

Blonder-Tongue Laboratories, Inc. v. University
Foundation, 402 U.S. 313 (1971) ... .........................  12,13

Bushey v. New York State Civil Service Comm’n,
469 U.S. 1117 (1985)............................................... 21

Carson V. American Brands, Inc., 450 U.S. 79
(1981) ............. ................................. .............. ......... . 15, 21

Chase Nat’l Bank V. City of Norwalk, 291 U.S, 431
(1934) ...............................        17

Chicago, R.I. & P. Ry. v. Schendel, 270 U.S. 611
(1926)..................................................................  14

Citibank Int’l V. Collier-Traino, Inc., 809 F.2d 1438
(9th Cir. 1987) .......... ............. .......... ....................... 28, 29

Cockroft, Ex parte, 104 U.S. 578 (1881) .................  28
Colorado River Water Conservation Dist. v. United

States, 424 U.S. 800 (1976) ..................................... 20
Consumers Union, Inc. v. Consumer Products 

Safety Comm’n, 590 F.2d 1209 (D.C. Cir. 1978), 
rev’d sub nom. GTE Sylvania, Inc. v. Consumers
Union, Inc., 445 U.S. 375 (1980)_____ ________  13,19

Corley v. Jackson Police Dep’t, 755 F.2d 1207
(5th Cir. 1985) .... ........... ............ ........... ...............  25,26

Cutting, Ex parte, 94 U.S. 14 (1876 )____________  28, 29
Dennison V. City of Los Angeles Dep’t of Water

and Power, 658 F.2d 694 (9th Cir. 1981) ............ 5, 6,16
Deveraux v. Jackson Police Dep’t, 765 F.2d 268 

(1st Cir. 1985), cert, denied, No. 85-492 (July
7, 1986) .............................. .......................................  25

Feller V. Brock, 802 F.2d 722 (4th Cir. 1986)...... . 26
Firebird Society v. Bd. of Fire Commissioners,

66 F.R.D. 457 (D. Conn.), aff’d mem., 515 F.2d 
504 (2d Cir.), cert, denied, 423 U.S. 867
(1975) ....... ............................ ................ ..................  25

Firefighters V. Cleveland, No. 84-1999 (July 2,
1986) ........ ................... ......... ..15, 16, 21, 22, 23, 24, 26, 28

Firefighters V. Stotts, 467 U.S. 561 (1984)...... ..15, 21, 24
Ford Motor Co. V. EEOC, 458 U.S. 219 (1982).... . 21
Franks V. Bowman Transportation Co., 424 U.S.

747 (1976) _______________ ___________________  21
General Telephone Co. v. EEOC, 446 U.S. 318

(1980) ........................................................................  15

Cases— Continued: Page



Gratiot County State Bank v. Johnson, 249 U.S.
246 (1919 )...........................    17

Hansberry v. Lee, 311 U.S. 32 (1940 )___ ____ ___  12,14
Johnson V. Transportation Agency, No. 85-1129

(Mar. 25. 1987) .......... ......................--------------------  21
Jones V. Bell Helicopter Co., 614 F.2d 1389 (5th

Cir. 1980) ____ __ ____________________ _____----- 16
Kerotest Mfg. V. C-O-Two Fire Equip. Co., 342

U.S. 180 (1952) ____________    20
Kirkland V. New York State Dep’t of Correction

Services, 711 F.2d 1117 (2d Cir. 1983) ..............  25
Leaf Tobacco Bd. of Trade, Ex parte, 222 U.S. 578

(1911) ............... .................................................. - ...... 27,29
Lutz V. Shapp, 70 F.R.D. 549 (E.D. Pa.), aff’d,

546 F.2d 417 (3d Cir. 1976), cert, denied, 430
U.S. 968 (1977 )______________    16

Martin-Trigona V. Shift, 702 F.2d 380 (2d Cir.
1983) .................................... ............ ............ -6, 7, 28, 29-30

McClain V. Wagner Electric Corp., 550 F.2d 1115
(8th Cir. 1977) ...................................... ........... - ..... 16

Montana V. United States, 440 U.S. 147 (1979).... 14
Moten V. Bricklayers Int’l Union, 543 F.2d 224

(D.C. Cir. 1976) ____ ___ __________ ___________  28
Mullane V. Central Hanover Bank & Trust Co., 339

U.S. 306 (1950 ).............. ................................... ....... 12
National Wildlife Federation V. Gorsuch, 744 F.2d

963 (3d Cir. 1984) ____________________ ________ 16
Parklane Hosiery Co. V. Shore, 439 U.S. 322

(1979) _____ ________ ______________ ___________  12,13
Prate V. Freedman, 430 F. Supp. 1373 (W.D.

N.Y.), aff’d mem., 573 F.2d 1294 (2d Cir. 1977),
cert, denied, 436 U.S. 922 (1978)_____ ________  5,16

Proceedings Before the Federal Grand Jury, In re,
643 F.2d 641 (9th Cir. 1981) _____ ___ _______ 29

Provident Trademens Bank & Trust Co. V. Pat­
terson, 390 U.S. 102 (1968) ______________ ____  14, 17

Sea-Land Services, Inc. V. Gaudet, 414 U.S. 573
(1974) ................... ................................................... 17

SEC V. Lincoln Thrift Ass’n, 577 F.2d 600 (9th
Cir. 1978) .... ................ ................................. -.........  30

South Carolina V. Wesley, 155 U.S. 542 (1895).... 27

V
Cases— Continued: Page



Cases— Continued:
VI

Page
Thaggard V. City of Jackson, 687 F.2d 66 (5th Cir.

1982), cert, denied, 464 U.S. 900 (1983)___ ___ .
United Airlines, Inc. V. McDonald, 432 U.S. 385

(1977) ________ _____ __________ ________________
United States V. Jefferson County, 720 F.2d 1511

(11th Cir. 1983) _____________________.____ ____ 20,
United States V. LTV Cory., 746 F.2d 51 (D.C.

Cir. 1984) ....................... .......................... .............. 27, 28,
United States v. McFaddin Express, Inc., 310 F.2d

799 (2d Cir. 1962) _______ __________ ______ _
United States v. Mendoza-Lopez, No. 85-2067

(May 26, 1987) .............................. ................ ........
United States V. Seigel, 168 F.2d 143 (D.C. Cir.

1948)........ ............................ .................................. . 27,
United States v. Yonkers, 801 F.2d 593 (2d Cir.

1986) _______________ ___ ________________ _____
United States ex rel. Louisiana V. Jack, 244 U.S.

397 (1917) --------------------------------------------....6,27,28,
West V. Radio-Keith-Oryheum Cory., 70 F.2d 621

(2d Cir. 1934) ................ „ ................. ............. ..........
W.R. Grace & Co. v. Rubber Workers, 461 U.S.

757 (1983) ____________________15, 16, 21, 22, 23, 24,
Zenith Radio Corp. V. Hazeltine Research, Inc.,

395 U.S, 100 (1969) ............................................ . 12,

Constitution, statutes and rules:
U.S. Const.:

Amend. V (Due Process Clause) ................... . 13,
Amend. XIV (Equal Protection Clause)____

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e
et seq.................... ..1, 2, 9, 11,15, 16,17, 21, 22, 23, 24,

42 U.S.C. 2000e-5..... ............... ........ .....................
42 U.S.C. 2000e-5 (f )  (1) ......................................

28 U.S.C. 1404(a).............. ........ ....................................  14,
Fed. R. App. P .:

Rule 3 (a) .... ............... .................. ............... ,........
Rule 3 (c) ................................. ............. ....... ...........

Fed. R. Civ. P .:
Rule 19--------------------------------------------------9, 14,18,
Rule 19 (a ) .......................................... ....................  18,

16

29

26

29

6

16

29

25

29

27

28

17

25
4

26
2

16
20

10
28

19
19



VII

Rule 19(b)................. ..........................................   18,19
Rule 2 3 ................................................................... - 14
Rule 24 ( a ) .........     17
Rule 2 4 (b ) - ....... -.....................      17
Rule 42_________________ _____ ______ - ....... ... 14, 20
Rule 60..........   20

Rules— Continued: Page

Miscellaneous:
McCord, A Single Package for Multiparty Disputes,

28 Stan. L. Rev. 707 (1976)....................................  20
Comment, Collateral Attacks on Employment Dis­

crimination Consent Decrees, 53 U. Chi. L. Rev.
147 (1986).................-.....-............... - ...................13,18,24

15 C. Wright, A. Miller & E. Cooper, Federal Prac­
tice and Procedure (1st ed. 1976) _________ .13,14, 20

18. C. Wright, A. Miller & E. Cooper, Federal Prac- 
time and Procedure (1st ed. 1981) ..... ......13, 14, 18, 20



3n tlu' (tort of %  Initefr
October Term, 1987

No. 86-1415
Evelyn Marino, et al ., petitioners 

v.
Juan U. Ortiz, et al.

Wayne Costello, et al ., petitioners 

v.

The New  Y ork City Police Department, et al.

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

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This case raises important questions concerning the 
rights and obligations of persons whose interests are af­
fected by, but who are not party to, ongoing litigation 
under Title VII of the Civil Rights Act of 1964, 42 
U.S.C. 2000e et seq., and by consent decrees entered 
therein. The United States has significant enforcement 
responsibilities under Title VII and is therefore often

(1)



2

involved in or affected by such Title VII suits and 
decrees. See 42 U.S.C. 2000e-5. Also numerous agencies 
of the United States engaged in federal court litigation 
concerning a range of subjects enter into or challenge con­
sent decrees entered into by private parties and are 
vitally affected by rules of intervention and appealability. 
Accordingly, the United States has a substantial inter­
est in the questions presented by this case.

STATEMENT

1. In June 1983 and April 1984, the New York City 
Police Department (NYCPD) administered a civil serv­
ice examination to 11,899 police officers seeking promo­
tion to the rank of sergeant (Pet. App. A60, A83-A86). 
Of these candidates for promotion, 79% were white, 
12.3% were black, and 8.7% were Hispanic (id. at A60, 
A83). After scoring the examination, the NYCPD estab­
lished a minimum point cut-off that left 1,041 officers 
eligible for promotion, 93.5% of whom were white, 2.3% 
of whom were black, and 4.2% of whom were Hispanic 
(id. at A60). The NYCPD proposed to fill numerous 
extant vacancies in the rank of sergeant from the 1,041 
officers on this eligibility list (id. at A85-A86).

In late 1984, however, two groups representing black 
and Hispanic police officers on the NYCPD force— the 
Guardians Association of the Police Department of New 
York City and the Hispanic Society of the New York 
City Police Department— filed separate suits under Title 
VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e 
et seq., to prevent the eligibility list from being used in 
the selection of officers for promotion (Pet. App. A3, 
A60-A61; J.A. 11-32). The plaintiff-groups alleged that 
the civil service examination, and thus the eligibility list 
it produced, had a disparate impact on black and His­
panic officers and were not job-related (Pet. App. A60- 
A61; J.A. 17-19, 28-30). The NYCPD, and other city 
officials named as defendants, promptly agreed not to use 
the eligibility list as a basis for permanent promotions,



3
pending the resolution of the litigation, but sought and 
received the court’s approval to make provisional promo­
tions of 534 officers from the eligibility list— 506 of whom 
were white (94.8%), 7 of whom were black (1.37%), 
and 21 of whom were Hispanic (3.94%) (Pet. App. 
A 84).

Three groups then successfully moved to intervene in 
both lawsuits (Pet. App. A4, A61-A62, A81)— the Ser­
geants Benevolent Association (SBA) on behalf of the 
officers who were provisionally promoted to the rank of 
sergeant from the eligibility list {id. at A4) ; the Ser­
geants Eligibles Association (SEA) on behalf of those 
officers who had not been provisionally promoted but who 
remained on the eligibility list {ibid.) ; and a group 
called the “ Schneider intervenors” on behalf of certain 
white ethnic groups and other individuals who had not 
been promoted and who, although they had taken the 
civil service examination, were not on the eligibility list 
{id. at A4, A60-A62). These three groups joined with 
the plaintiff-groups and the defendants in attempting to 
negotiate a mutually acceptable settlement of the law­
suits {id. at A4-A5, A61-A62).

Ultimately, all parties except the Schneider inter­
venors agreed to the terms of such a settlement (Pet. 
App. A5; J.A. 52-85). That proposed settlement included 
the permanent promotion of all officers on the eligibility 
list as well as a sufficient number of black and Hispanic 
officers so that each group would be represented at the 
rank of sergeant in proportion to the number of those 
taking the civil service examination (Pet. App. A5; J.A. 
70-75). The parties proposed to select these additional 
black and Hispanic officers on the basis of their scores 
on the written portion of the civil service examination 
(Pet. App. A63; J.A. 71-72, 74). Because the NYCPD 
continued to face problems associated with the shortage 
of sergeants on the force, the court, on November 27, 
1985, gave interim approval to this proposal (Pet. App. 
A6, A84-A85; J.A. 46-48), thus allowing 573 more of­
ficers, approximately 160 of whom were not on the eligi­



4

bility list, to receive provisional promotions to the rank 
of sergeant (Pet. App. A6, A84-A85).

2. On December 30, 1985, the Marino petitioners, rep­
resenting a class of white officers who were not on the 
eligibility list but who had examination scores at least as 
high as the lowest scoring minority officer receiving a 
provisional promotion under the interim settlement order, 
filed suit against various city officials (Pet. App. A7- 
A8). They alleged that the provisional promotions made 
pursuant to the interim settlement orders violated the 
Equal Protection Clause of the Fourteenth Amendment 
{id. at A26-A27), and prayed that members of their 
class be promoted to current and future sergeant 
vacancies as a remedy {id. at A28-A29).

The defendant-officials successfully moved that the 
Marino petitioners’ case be reassigned to the judge who 
was handling the Guardians Association and Hispanic 
Society litigation (Pet. App. A8; J.A. 1, 87-91). Then, 
they moved that the Marino petitioners’ complaint be dis­
missed as an impermissible collateral attack upon the 
interim settlement orders entered in the Guardians Asso­
ciation and Hispanic Society litigation (Pet. App. A30- 
A38). Before ruling on that motion, the court consoli­
dated the Guardians Association and Hispanic Society 
cases and scheduled a fairness hearing concerning the 
terms of a final consent decree that the parties to that 
litigation (except for the Schneider intervenors) had 
submitted, on February 7, 1986 (Pet. App. A64, A89; 
J.A. 5-6). Notice of the proposed consent decree and 
hearing date was sent to all parties and posted in all 
precinct stations (Pet. App. A64; J.A. 49-51). In re­
sponse, the Schneider intervenors and the Costello peti­
tioners, a group of white officers who were not on the 
eligibility list but who had scores equal to or higher than 
similarly situated black and Hispanic officers who had 
been provisionally promoted,1 notified the court, in writ-

1 The Costello petitioners include all of the plaintiffs in the 
Marino litigation (Pet. 15).



5

mg and then orally at the April 17, 1986 fairness hear­
ing, of their objections to the proposed decree (Pet. App. 
A64-A65, A89-A90; J.A. 183-206).

On April 25, 1986, the court granted the motion of 
the defendants in the Marino litigation to dismiss the 
complaint filed therein (J.A. 1). Finally, on June 16, 
1986, the court approved the entry of the final consent 
decree in the Guardians Association and Hispanic So­
ciety litigation (Pet. App. A7, A65, A80-A99).

3. The Marino petitioners and the Costello petitioners 
filed timely notices of appeal (Pet. App. A2, A65-A66).2 
In separate decisions, however, the Second Circuit af­
firmed the district court’s dismissal of the Marino peti­
tioners’ complaint (id. at A1-A12) and ruled that the 
Costello petitioners had no right to file an appeal (id. at 
A58-A79).

a. In affirming the dismissal of the Marino petitioners’ 
complaint, the court relied on what it characterized as 
the “well-settled” rule “ that collateral attacks on consent 
decrees entered in Title VII actions are not permitted” 
(Pet. App. A8, citing Dennison v. City of Los Angeles 
Dep’t of Water and Power, 658 F.2d 694 (9th Cir. 
1981), and Prate v. Freedman, 430 F. Supp. 1373 
(W.D.N.Y.), aff’d mem., 573 F.2d 1294 (2d Cir. 1977), 
cert, denied, 436 U.S. 922 (1978)). It noted that “ salu­
tary policies” underlie this rule— namely, that “ [a llow ­
ing the terms of a consent decree to be contested in sepa­
rate lawsuits would raise the specter of inconsistent or 
contradictory proceedings, would promote continued un­
certainty thus undermining the concept of final judgment 
and would violate the policy of promoting settlement in 
Title VII actions” (Pet. App. A8-A9).

The court stated that, while the district court “had not 
given final approval to the consent decree in Hispanic 
Society at the time [it] dismissed the lawsuit,” that 
litigation had “proceeded to a very significant stage”

2 The Schneider intervenors also filed a notice of appeal, but 
subsequently withdrew it (Pet. App. A65-A66).



6

(Pet. App. A10). It then asserted that, “ [h]ad [the 
Marino petitioners] been allowed to maintain this law­
suit under these circumstances, the parties’ incentive to 
pursue the Hispanic Society settlement would have been 
seriously eroded” (id. at A10-A11) ; in its view, “ the 
settlement would have had no utility iff]  it [had] failed 
to prevent further litigation of the matter” (id. at A l l ) .  
The court added that, “ since even the later actual entry 
of the consent decree in Hispanic Society would not have 
decided the issue, the concept of a final judgment would 
have been undermined” if the Marino litigation had been 
allowed to go forward and, “ [b]y the same token,” 
“would have * * * invit[ed] conflicting results” (ibid.). 
It therefore concluded that the district court “was cor­
rect in deeming this suit an impermissible collateral at­
tack on a consent decree” (id. at A11-A12).

The court suggested that the Marino petitioners’ 
“proper course, as in most cases where collateral attacks 
have been dismissed, would have been to intervene in the 
lawsuit from which the consent decree issued” (Pet. App. 
A12, citing Dennison v. City of Los Angeles Dep’t of 
Water and Power, 658 F.2d at 696, and Black and White 
Children v. School District, 464 F.2d 1030 (6th Cir. 
1972)). Indeed, the court noted that the defendants had 
suggested this course to the Marino petitioners (Pet. 
App. A12) and commented that, “ [ i] f  intervention had 
been denied, the proper course would have been to appeal 
that denial” (ibid, (citation omitted)).

b. In dismissing the Costello petitioners’ appeal, the 
court relied on the “general rule” that “only a party of 
record in a lawsuit has standing to appeal from a judg­
ment of the district court” (Pet. App. A66, citing United 
States ex rel. Louisiana v. Jack, 244 U.S. 397, 402 
(1917), Martin-Trigona v. Skiff, 702 F.2d 380, 385 (2d 
Cir. 1983), and United States v. McFaddin Express, Inc., 
310 F.2d 799, 801 (2d Cir. 1962)). Since the Costello 
petitioners “never moved to intervene in these proceed­
ings, they [were] not parties to this litigation, and their 
appeal [had to] be dismissed” (Pet. App. A66).



7

The court recognized the existence of exceptions to this 
general rule and stated that “ [t]he primary exception is 
when the nonparty has an interest that is affected by 
the trial court’s judgment” (Pet. App. A67, citing 
Martin-Trigona v. Shiff, 702 F.2d at 385-386). But it 
found that the Costello petitioners “ were not on the 
original eligible list, * * * have no right to promotion 
under state law[,] and * * * do not allege that the 
examination discriminated against them” and, therefore, 
“ would not be entitle[d] to promotion” (Pet. App. A68). 
In such circumstances, the court concluded, the Costello 
petitioners have no right of appeal as nonparties with 
an interest in the order below (ibid.).

Finally, the court rejected various arguments that the 
Costello petitioners advanced concerning why they should 
be treated as de facto parties to the litigation (Pet. 
App. A68-A75). With regard to the Costello petitioners’ 
claim that they are denominated as “ defendants” under 
the definitional provisions of the consent decree,3 the 
court noted that “ the definitions in the settlement by 
their very terms delineate the parties to the agreement 
and not the parties to the litigation” (id. at A 69 ); that, 
“ [j]ust as the settlement cannot divest a plaintiff or 
defendant of party status in the litigation, it cannot con­
fer party status on a nonparty” (id. at A70) ; and, in 
any event, that “ [t]his provision of the settlement sim­
ply binds [the Costello petitioners] to comply with its 
terms in their official capacities as employees of the de­

3 The decree defines “ New York City defendants” to include “the 
City of New York, the New York City Police Department, the New 
York City Department of Personnel, and all officers, employees or 
agents, whether elected or appointed, of the City of New York, 
but not including the Hispanic Society plaintiffs, the Guardians 
Association plaintiffs, the intervenor defendants or any individuals 
or groups represented by the Hispanic Society plaintiffs, the Guard­
ians Association plaintiffs or [the] intervenor defendants” (J.A. 
65-66). The Costello petitioners contended that, because they are 
police officers employed by the City of New York, they are included 
among the class of “ New York City defendants” (Pet, App. A69).



8

fendants, and does not give them standing to raise their 
current objections to the settlement as violative of their 
individual rights” {id. at A70-A71). And, with regard 
to the Costello petitioners’ claim that the “ filing [of] 
written objections to the settlement and [their] appear- 
[ance] at the hearing gave them status as parties to the 
litigation” (id. at A74), the court noted that the Costello 
petitioners’ “predicament results from their ste[a]dfast 
refusal to comply with the requirements for intervention 
set forth in Fed. R. Civ. P. 24” {id. at A75) ; that, 
“ [b]ecause the requirements for intervention as a party 
have been ignored, the people pursuing this appeal have 
no more standing than individuals selected at random 
from a telephone book” {id. at A77) ; and, in any event, 
that it could not determine the decree’s effect on the 
Costello petitioners’ interests because “ the record con­
tains no affidavits or other sworn allegations describing 
their individual status as police officers or as candidates 
for sergeant” {id. at A77-A78).

SUMMARY OF ARGUMENT

I. The court below erred in dismissing the Marino 
petitioners’ complaint as an impermissible attack on the 
final consent decree entered in the Hispanic Society and 
Guardians Association litigation. The Marino petitioners’ 
complaint did not even challenge the final consent de­
cree; it challenged the provisional promotions imple­
mented pursuant to the interim settlement orders of the 
court. In any event, it is a fundamental principle of due 
process that a judgment may not be held binding on a 
litigant who was neither party nor privy to the litigation 
in which that judgment was entered.

While certain carefully-drawn exceptions to this rule 
against nonparty preclusion exist, none is applicable here. 
The parties in the Hispanic Society and Guardians Asso­
ciation litigation did not attempt to join the Marino peti­
tioners, consolidate the Marino litigation with their law­
suit, demonstrate that the Marino petitioners were ade­



9

quately represented in their settlement discussions, or 
show that Title VIPs remedial scheme expressly fore­
closes private litigants (like the Marino petitioners) 
from successively litigating issues that other litigants 
have raised in collateral Title YII litigation.

The “ salutary policies” that concerned the court below 
can be and in the intention of Congress must be accom­
modated not by placing the burden of intervention on 
affected third parties but by other devices, particularly 
by requiring the litigants to join any party as to whom 
they may wish to argue preclusion at a later stage. 
Thus, the drafters of the Federal Rules of Civil Proce­
dure determined that the concern for finality of judg­
ments would be better served by mandatoiy joinder than 
by mandatory intervention procedures. Accordingly, in 
Rule 19, they placed the burden on the courts and the 
existing parties, not on the nonparties, to ensure that 
the risk of double, multiple, or otherwise inconsistent 
judgments is minimized. In addition, rules concerning 
transfer, consolidation, stare decisis, and comity are 
available to reduce the potential for inconsistent or con­
tradictory proceedings. Finally, this Court has recog­
nized that the policy favoring settlement of Title VII 
suits cannot be used to justify the abrogation of non- 
parties’ legal rights. Allowing third-persons collaterally 
to attack consent decrees will not stop parties from enter­
ing into mutually advantageous settlements and, in any 
event, true voluntary compliance with Title VII requires 
either that all interested persons consent to any settle­
ment agreement or that the agreement negotiated be able 
to withstand their third-party attack.

II. The court below correctly determined, however, 
that the Costello petitioners had no right to appeal the 
district court’s entry of the final consent decree. This 
Court has long held that persons who are not formally 
parties to litigation have no right to appeal orders en­
tered therein. The Costello petitioners clearly were not 
parties to the Hispanic Society and Guardians Associa­



10
tion litigation. They were not among the original con­
testants in the district court; they did not attempt to 
intervene; they were not substituted for another party; 
and they were not joined. Their participation was lim­
ited to filing written and oral objections to the proposed 
consent decree. Thus, like an amicus curiae, they were 
not parties, are not bound by the terms of the consent 
decree, and have no right to appeal.

To be sure, this Court has suggested on a few oc­
casions that there may be exceptions to the rule against 
nonparty appeals and, accordingly, a few courts of ap­
peals have admitted such exceptions. But Rule 3(a) of 
the Federal Rules of Appellate Procedure authorizes only 
parties to file notices of appeal. Moreover, as noted 
above, persons who are aggrieved by conduct resulting 
from a judgment to which they are not party may still 
protect their interests by filing a separate action (col­
laterally attacking that judgment) or by filing a post­
judgment motion for intervention. We therefore submit 
that judicially crafted exceptions to the rule against non- 
party appeals are both without authority and unneces­
sary.

Even if some exception to the rule against nonparty 
appeals exists, however, the Costello petitioners cannot 
qualify for it. The exception noted by the court below-—- 
to wit, that the nonparty must have an interest that is 
affected by the trial court’s judgment— is not an excep­
tion at all, and must be rejected. The exception noted by 
several other courts of appeals— to wit, that the non- 
parties must have actively participated in the district 
court and the equities must favor allowing them to go 
forward— is inapplicable on the facts of this case. The 
Costello petitioners’ involvement in the district court pro­
ceedings was minimal. They made no effort to intervene 
either before or after the decree was entered, and they 
submitted no affidavits or other sworn allegations con­
cerning the extent to which the entry of the district 
court’s judgment adversely affected their interests. They 
should not be allowed to proceed with an appeal.



11

ARGUMENT

I. INDIVIDUALS WHO FAILED TO INTERVENE IN 
AN ONGOING TITLE VII SUIT ARE NEVERTHE­
LESS ENTITLED TO PURSUE AN ACTION CHAL­
LENGING EMPLOYMENT-RELATED ACTIONS 
TAKEN PURSUANT TO CONSENT ORDERS EN­
TERED IN THE ORIGINAL SUIT

The court below dismissed the Marino petitioners’ com­
plaint as an impermissible “collateral attack” on the final 
consent decree entered in the Hispanic Society and 
Guardians Association litigation. But the Marino peti­
tioners’ complaint did not challenge that final consent 
decree and, for this reason alone, the judgment below is 
technically wrong. More importantly, however, the “ col­
lateral attack” doctrine on which the court below relied 
is at odds with the fundamental principle that a judicial 
decree is not binding on any person who was not party 
to the litigation in which that decree was entered. The 
“ salutary policies” that the “collateral attack” doctrine 
promotes— to wit, the policies favoring finality of judg­
ments, avoidance of inconsistent or contradictory judg­
ments, and voluntary settlement of Title VII suits— can 
be satisfactorily accommodated by other procedural de­
vices that are consistent with this fundamental principle 
of due process and with the congressionally approved 
rules of federal court administration. Accordingly, we 
agree with the Justices of this Court and the courts of 
appeals that have criticized or rejected the “ collateral 
attack” doctrine.

A. As an initial matter, we question whether the court 
below correctly characterized this case as a collateral 
attack on the final consent decree entered in this litiga­
tion. The Marino petitioners filed their complaint ap­
proximately one month before the parties to the Hispanic 
Society and Guardians Association litigation even sub­
mitted their proposed consent decree to the court. The 
court did not approve or enter that decree until over six



12

months after the Marino petitioners’ complaint was filed.4 
The Marino petitioners actually challenged the provi­
sional promotions implemented by the defendants; their 
complaint does not mention or attack the final consent 
decree to which the court below referred. See Pet. App. 
A14-A29. Therefore, their complaint cannot logically be 
characterized as a “collateral attack” on the final consent 
decree entered in the Hispanic Society and Guardians 
Association litigation.

B. The complaint did challenge the provisional promo­
tions undertaken pursuant to the interim orders and the 
question remains whether the Marino petitioners’ chal­
lenge was properly dismissed as an impermissible col­
lateral attack on those interim orders. We believe that 
it was improper for the courts below to do so and, in­
deed, it would have been improper even if the Marino 
petitioners had been challenging a final consent decree.

1. This Court has long stated that “ [i]t is a violation 
of due process for a judgment to be [held] binding on 
a litigant who was not a party or a privy” to the litiga­
tion in which that judgment was entered (Parklane 
Hosiery Co. v. Shore, 439 U.S. 322, 327 n.7 (1979)). 
See, e.g., Blonder-Tongue Laboratories, Inc. v. University 
Foundation, 402 U.S. 313, 328-329 (1971); Zenith Ra­
dio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 
(1969); Hansberry v. Lee, 311 U.S. 32, 40-42 (1940).5 * * 8

4 The Marino petitioners’ filed their complaint on December 30,
1985. See Pet. App. A7. The parties to the Hispanic Society and
Guardians Association litigation submitted their proposed consent
decree to the court on February 7, 1986. See id. at A89. The 
court approved and entered that decree on June 16, 1986. See id. 
at A7.

8 A fundamental corollary to this basic due process principle is 
that a judgment should be binding only on those persons who are 
subject to the jurisdiction of the court and who have sufficient 
notice of the litigation in which a judgment is entered. See 
Mullane V. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 
(1950) ( “ [a]n elementary and fundamental requirement of due 
process in any proceeding which is to be accorded finality is notice



13

As Chief Justice Rehnquist has noted, “ [t]his rule can be 
traced to an opinion of Chief Justice Marshall in Davis 
V. Wood, 1 Wheat. 6, 8-9 (1816),” and “ is part of our 
‘deep-rooted historic tradition that everyone should have 
his own day in court’ ”  (Ashley v. City of Jackson, 464 
U.S. 900, 902 (1983) (Rehnquist, J., joined by Brennan, 
J., dissenting from the denial of certiorari), quoting 
18 C. Wright, A. Miller, & E. Cooper, Federal Practice 
and Procedure, § 4449, at 417 (1st ed. 1981)). This 
“ deep-rooted historic tradition,” which is embodied in 
both the Due Process Clause and the various rules that 
Congress had enacted to govern the administration 
of the federal courts, recognizes that just and accurate 
judicial decisionmaking is more likely to result when 
persons are allowed to present their own cases— at the 
time and place of their own choosing. See Parklane 
Hosiery Co. v. Shore, 439 U.S. at 327 n.7; Blonder- 
Tongue Laboratories, Inc. v. University Foundation, 402 
U.S. at 328-329; see generally 15 C. Wright, A. Miller 
& E. Cooper, supra, § 3841, at 200-202 (1st ed. 1976); 
18 C. Wright, A. Miller & E. Cooper, supra, § 4449, at 
415-419; § 4452, at 446-453.
_ Of course, producing just and accurate judicial deci­

sionmaking is not the only legitimate concern of our legal 
system. Finality, efficiency, and consistency of decision 
are also serious concerns. Accordingly, procedural de­
vices exist for bringing nonparties into litigation and, 
in limited circumstances, for binding them to the results

reasonably calculated, under all the circumstances, to apprise inter­
ested parties of the pendency of the action and afford them an 
opportunity to present their objections” ) ; Consumers Union, Inc. 
V. Consumer Products Safety Comm’n, 590 F.2d 1209, 1222 (D.C. 
Cir. 1978), rev’d on other grounds sub nom. GTE Sylvania, Inc. 
V. Consumers Union, Inc., 445 U.S. 375 (1980). The rule against 
preclusion of nonparties advances this corollary proposition, since 
a court can rest assured that the parties are subject to its jurisdic­
tion and have sufficient notice of the litigation. See Comment, 
Collateral Attacks on Employment Discrimination Consent Decrees, 
53 U. Chi. L. Rev. 147, 154-165 (1986).



14

of litigation notwithstanding their absence. In appro­
priate circumstances and pursuant to proper procedures, 
a person may be joined in and thus become bound by 
litigation in which he would prefer not to participate. 
See Provident Tradesmens Bank & Trust Co. v. Patter­
son, 390 U.S. 102, 107-125 (1968) ; Fed. R. Civ. P. 19. 
Similarly, in appropriate circumstances and pursuant to 
proper procedures, “a district court may transfer any 
civil action to any other district or division where it 
might have been brought” (28 U.S.C. 1404(a)); and 
the receiving court may consolidate that action with any 
related litigation that is before it. See Fed. R. Civ. P. 
42; see generally 15 C. Wright, A. Miller & E. Cooper, 
supra, § 3848, at 249-251, id. § 3481, at 200-202. Indeed, 
a person may be bound by litigation to which he is not 
a party where there are sufficient assurances that his 
interests are adequately represented therein by a certified 
class (see Hansberry v. Lee, 311 U.S. at 41-42; Fed. R. 
Civ. P. 23), where he has sufficient control over the con­
duct of one of the parties to that litigation (see Montana 
V. United States, 440 U.S. 147, 154-155 (1979); 18 C. 
Wright, A. Miller & E. Cooper, supra, § 4451, at 427), 
or where there is a special remedial scheme— as, for ex­
ample, exists in bankruptcy, reorganization, and probate 
statutes—that expressly forecloses successive litigation by 
nonparticipants (see 18 C. Wright, A. Miller & E. Cooper, 
supra, § 4452, at 451, § 4458, at 520-521; see also Chicago, 
R.I. & P. Ry. v. Schendel, 270 U.S. 611, 618-620 (1926)). 
These various procedural devices, permitted by the Due 
Process Clause and the rules that govern administra­
tion of the federal courts, allow courts and parties, in 
appropriate cases, to achieve some finality, efficiency, 
and consistency in litigation without unacceptably under­
mining the accuracy of the judicial decisionmaking pro­
cess or violating the due process rights of nonparticipants.

But none of these exceptions to the general rule against 
preclusion of nonparties applies in this case. Here, the 
Marino petitioners filed a lawsuit separate and apart



15

from the Hispanic Society and Guardians Association 
litigation. The parties in the latter litigation did not 
attempt to join the Marino petitioners as parties to their 
litigation or to have the Marino litigation formally con­
solidated with their lawsuits.6 And there has been no 
showing, much less a defensible finding, that any party in 
the primary lawsuits adequately represented the Marino 
petitioners’ interests, that the Marino petitioners had con­
trol over the conduct of any party in the Hispanic Society 
and Guardians Association litigation, or that Title VII’s 
remedial scheme forecloses private litigants from succes­
sively litigating issues that other private litigants have 
raised in collateral Title VII litigation.7 Thus, under

6 Pursuant to local rule, the defendants in the Marino litigation 
did move to have the action against them transferred to the same 
judge that was handling the Hispanic Society and Guardians As­
sociation litigation. But we are not aware of any motion by those 
defendants or by any other person to have the Marino litigation 
consolidated with the Hispanic Society and Guardians Association 
litigation.

7 Of course, as the court below noted (Pet. App. A9), “ Congress 
[has] expressed a strong preference for encouraging voluntary 
settlement of employment discrimination claims” (Carson V. Amer­
ican Brands, Inc., 450 U.S. 79, 88 n.14 (1981)). But, as explained at 
pages 21-24, infra, allowing collateral attacks on Title VII consent 
decrees will not undermine this policy. In any event, neither the 
provisions which underlie this policy nor the policy itself expressly 
forecloses successive lawsuits by nonparticipants in Title VII 
litigation. This Court has apparently so held. See Firefighters V. 
Cleveland, No. 84-1999 (July 2, 1986), slip op. 26-27; W.R. Grace 
& Co. v. Rubber Workers, 461 U.S. 757, 770-772 (1983) ; General 
Telephone Co. V. EEOC, 446 U.S. 318, 332 (1980); see also Fire­
fighters V. Stotts, 467 U.S. 561, 588 n.3 (1984) (O’Connor, J., 
concurring) ( “ if innocent employees are to be required to make 
any sacrifices in [a Title VII] consent decree, they must be repre­
sented and have had full participation rights in the negotiation 
process” ).

Title VII does authorize the Attorney General and the Equal 
Employment Opportunity Commission to initiate lawsuits on be­
half of aggrieved individuals and, in such cases, gives the ag-



16
time-honored rules of due process and civil procedure, the 
Marino petitioners should have been allowed to proceed 
with their suit, as this Court’s decisions acknowledge. 
See Firefighters v. Cleveland, No. 84-1999 (July 2, 1986), 
slip op. 26-27; W.R. Grace & Co. v. Rubber Workers, 461 
U.S. 757, 770-772 (1983); see also United, States v. 
Mendoza-Lopez, No. 85-2067 (May 26, 1987), slip op. 
9-13.

2. In holding to the contrary, the court below followed 
a line of cases holding that collateral attacks on consent 
decrees entered in Title VII actions are not permissible. 
See Thaggard V. City of Jackson, 687 F.2d 66 (5th Cir. 
1982), cert, denied, 464 U.S. 900 (1983); Dennison v. 
City of Los Angeles Dep’t of Water & Power, 658 F.2d 
694 (9th Cir. 1981) ; Black & White Children v. School 
District, 464 F.2d 1030 (6th Cir. 1972); Austin v. 
County of DeKalb, 572 F. Supp. 479 (N.D. Ga. 1983) ; 
Prate v. Freedman, 430 F. Supp. 1373 (W.D.N.Y.), 
aff’d, 573 F.2d 1294 (2d Cir. 1977), cert, denied, 436 
U.S. 922 (1978); Lutz v. Shapp, 70 F.R.D. 549 (E.D. 
Pa.), aff’d, 546 F.2d 417 (3d Cir. 1976), cert, denied, 
430 U.S. 968 (1977); see also Natmial Wildlife Federa­
tion V. Gorsucli, 744 F.2d 963, 969 (3d Cir. 1984). Like 
the court below (see Pet. App. A8-A11), the courts in

grieved individuals an absolute right of intervention. See 42 U.S.C. 
2Q00e-5(f) (1). Some courts have therefore held that the statutory 
scheme precludes these aggrieved individuals from initiating suc­
cessive litigation once the government’s litigation has concluded. 
See, e.g., Adams v. Proctor & Gamble Mfg., 697 F.2d 582 (4th 
Cir. 1983) (en banc), cert, denied, 465 U.S. 1041 (1984); Jones 
V. Bell Helicopter Co., 614 F.2d 1389 (5th Cir. 1980) ; McClain V. 
Wagner Electric Corp., 550 F.2d 1115 (8th Cir. 1977). Whether 
these decisions are correct or not, they make clear that Title VII 
contains no provision authorizing a private litigant to initiate an 
action on behalf of another individual and thereby to preclude that 
other individual from bringing an action on his own behalf at the 
time and place of his own choosing (absent formal class certifica­
tion procedures). Cf. Alexander v. Gardner-Denver Co., 415 U.S. 
36, 47 (1974) ( “ [tjhere is no suggestion in the statutory scheme 
that a prior arbitral decision either forecloses an individual’s right 
to sue or divests federal courts of jurisdiction” ).



17

those cases have expressed their concern that allowing 
collateral attacks on consent decrees entered in Title VII 
litigation will prevent the attainment of final judgments, 
raise the specter of inconsistent or contradictory proceed­
ings, and undermine the policy of promoting settlement 
of Title VII actions. They therefore have concluded that 
persons with interests affected by ongoing Title VII liti­
gation must intervene in those suits or face preclusion 
from the judgments entered therein. While the concerns 
motivating this conclusion are significant, they can and 
should be accommodated by the more finely-tuned proce­
dural devices that Congress has approved for reconciling 
the tension between procedural fairness and judicial 
efficiency.

a. The concern that nonparties may wish to relitigate 
issues previously decided and thus prevent the attainment 
of final judgments is not a new one. The drafters of the 
Federal Rules of Civil Procedure expressly faced that 
concern when they were designing the rules that now 
govern the administration of the federal courts. The 
drafters recognized that rules of intervention have always 
been drawn in permissive terms and, therefore, that non- 
parties can refrain from intervention in litigation that 
affects them.8 Rather than redraft the rules of inter­

8 See Fed. R. Civ. P. 24(a) (intervention as of right) ( “ [u]pon 
timely application anyone shall be permitted to intervene” ) ; Fed. 
R. Civ. P. 24(b) (permissive intervention) ( “ [u]pon timely ap­
plication anyone may be permitted to intervene” ). See also Chase 
Nat’l Bank v. City of Norwalk, 291 U.S. 431, 441 (1934) ( “The 
law does not impose upon any person absolutely entitled to a hear­
ing the burden of voluntary intervention in a suit to which he is 
a stranger. * * * Unless duly summoned to appear in a legal 
proceeding, a person not a privy may rest assured that a judg­
ment recovered therein will not affect his legal rights.” ) ; accord, 
Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 593 (1974) ; 
Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 
110 (1969) ; Gratiot County State Bank V. Johnson, 249 U.S. 246, 
249-250 (1919). But cf. Provident Tradesmens Bank & Trust Co. 
V. Patterson, 390 U.S. 102, 115 (1968) (suggesting in dicta that



18

vention in mandatory terms, however, they determined 
that the concern for finality of judgments would be “ bet­
ter [served] by mandatory joinder procedures” (18 C. 
Wright, A. Miller, & E. Cooper, supra, § 4453, at 453). 
Accordingly, they added Rule 19 to the Federal Rules of 
Civil Procedure. See Advisory Committee’s Note to Fed. 
R. Civ. 19; see also Comment, Collateral Attacks on 
Employment Discrimination Consent Decrees, 53 U. Chi. 
L. Rev. 147, 164 (1986).

Rule 19 has two parts. Part (a) requires the existing 
parties and the court to join those persons whose presence 
is necessary and desirable for a just adjudication.9 Part 
(b) requires the existing parties and the court to work 
out a fair and just solution when joinder is not possible— 
so that neither the absent person nor those already party 
to the litigation will be prejudiced by, for example, the 
issuance of a decree that impairs their rights or exposes 
them to double, multiple, or otherwise inconsistent obliga­

a nonparty who “ha[s] purposely bypassed an adequate opportunity 
to intervene” might be barred from relitigating an issue).

9 Rule 19 (a) provides (emphasis added) that
[a] person who is subject to service of process and whose 
joinder will not deprive the court of jurisdiction * * * shall 
be joined as a party in the action if (1) in his absence com­
plete relief cannot be accorded among those already parties, 
or (2) he claims an interest relating to the subject of the 
action and is so situated that the disposition of the action in 
his absence may (i) as a practical matter impair or impede 
his ability to protect that interest or (ii) leave amy of the 
persons already party subject to a substantial risk of incurring 
double, multiple, or otherwise inconsistent obligations by 
reason of his claimed interest. If he has not been so joined, 
the court shall order that he be made a party. If he should 
join as a plaintiff but refuses to do so, he may be made a 
defendant, or, in a proper case, an involuntary plaintiff. If 
the joined party objects to venue and his joinder would render 
the venue of the action improper, he shall be dismissed from 
the action.



IS

tions.10 Together, parts (a) and (b) of Rule 19 plainly 
place the responsibility (and means) for obtaining a final 
judgment with the courts and the existing parties, and 
not with the nonparties (such as the Marino petitioners), 
to the litigation. Accord, Consumers Union, Inc. V. Con­
sumer Products Safety Comm’n, 590 F.2d 1209, 1223 
(D.C. Cir. 1978), rev’d on other grounds sub nom. GTE 
Sylvania, Inc. V. Consumers Union, Inc., 445 U.S. 375 
(1980); Adams v. Bell, 711 F.2d 161, 194-198 (D.C. 
Cir. 1983) (Wright, J., dissenting), cert, denied, 465 
U.S. 1021 (1984). The judicially developed “collateral 
attack” doctrine turns this allocation of responsibility on 
its head and is thus irreconcilable with the procedural 
scheme envisioned by the drafters of Rule 19 and the 
Congress that approved that rule’s adoption.

b. Nor can the “collateral attack” doctrine be justified 
as a necessary means for avoiding the danger of incon­
sistent or contradictory proceedings. For one thing, the 
prevention of such inconsistent or contradictory proceed­
ings is one of the principal purposes of Rule 19; applica­
tion of the “collateral attack” doctrine would render Rule 
19 a legislative redundancy. See Fed. R. Civ. P. 19(a) 
(joinder required where person’s absence would “ leave 
any of the persons already parties subject to a substan­
tial risk of incurring double, multiple, or otherwise in­

10 Rule 19 (b) provides that
[i]f  a person * * * cannot be made a party, the court shall 
determine whether in equity and good conscience the action 
should proceed among the parties before it, or should be dis­
missed, the absent person being thus regarded as indis­
pensable. The factors to be considered by the court include: 
first, to what extent a judgment rendered in the person’s ab­
sence might be prejudicial to him or those already parties; 
second, the extent to which, by protective provisions in the 
judgment, by the shaping of relief, or other measures, the 
prejudice can be lessened or avoided; third, whether a judg­
ment rendered in the person’s absence will be adequate; fourth, 
whether the plaintiff will have an adequate remedy if the 
action is dismissed for nonjoinder.



20

consistent obligations” ) ; see also McCord, A Single Pack­
age for Multiparty Disputes, 28 Stan. L. Rev. 707, 723- 
724 (1976). Moreover, transfer and consolidation pro­
cedures are available to prevent judicial proceedings from 
multiplying uncontrollably or undesirably and to enable 
a single judge to control litigation that is initiated by 
different parties in different places. See 28 U.S.C. 1404 
(a ); Fed. R. Civ. P. 42; 15 C. Wright, A. Miller & 

E. Cooper, supra, § 3841, at 200-202; id. § 3485, at 287. 
Indeed, even where joinder, transfer, and consolidation 
devices will not together ensure that only a single bind­
ing judgment can result concerning any particular mat­
ter, principles of stare decisis and comity will inform 
the second court that acquires jurisdiction over that 
matter and thus minimize the possibility of inconsistent 
or contradictory judgments. See Colorado River Water 
Conservation Dist. v. United States, 424 U.S. 800, 817 
(1976) ; Kerotest Mfg. v. C-O-Two Fire Equip. Co., 342 
U.S. 180, 181-182 (1952). And, in all events, the con­
cern for correctness of judicial decisionmaking is as 
important as the concern for consistency among judg­
ments and, accordingly, some inconsistent or contradic­
tory judgments must be accepted.11

In attempting to eliminate (rather than to minimize) 
such inconsistent judgments, the “ collateral attack” doc­
trine ignores our “ clear experience with the general falli­
bility of litigation and with the specific distortions of 
judgment that arise from the very identity of the parties” 
(18 C. Wright, A. Miller, & E. Cooper, supra, § 4449, at 
417). Ironically, that experience has been most evident

11 Where such inconsistent or contradictory judgments arise, well- 
established procedures are available to ensure that the person 
subject to those judgments does not place himself in contempt of 
either court’s judgment. The person may, of course, seek reversal 
of the second judgment on appeal. And, if unsuccessful on appeal, 
the person will have an appropriate ground upon which to seek 
relief from the court entering the first judgment. See Fed. R. 
Civ. P. 60; see also United, States v. Jefferson County, 720 F.2d 1511, 
1517-1519 (11th Cir. 1983).



21
in cases involving Title VII consent decrees, which them­
selves amount to “ little more than a contract between the 
parties, formalized by the signature of a judge” (Ashley 
V. City of Jackson, 464 U.S. at 902 (Rehnquist, J., dis­
senting from denial of certiorari) ; accord, Firefighters 
V. Cleveland, slip op. 14-16, 19-21), and which involve 
strong incentives and opportunity to make innocent and 
unrepresented third-persons pay the price of sins that 
were not of their own making and from which they may 
not personally have benefited. Accord, W.R. Grace & Co. 
V. Rubber Workers, 461 U.S. 757, 767-770, 771-772 
(1983); Ford Motor Co. v. EEOC, 458 U.S. 219, 239- 
240 (1982).12 In short, the “ collateral attack” doctrine 
pursues consistency in judicial decisionmaking with an 
unwarranted insensitivity to both the need for accurate 
judicial decisionmaking and the potential defenselessness 
of innocent and unrepresented third-persons.

c. This insensitivity cannot be justified by reference 
to the policy favoring voluntary settlement of Title VII 
disputes. To be sure, “ Congress [has] expressed a strong 
preference for encouraging voluntary settlement of em­
ployment discrimination claims” (Carson v. American 
Brands, Inc., 450 U.S. 79, 88 n.14 (1981)) and this Court 
accordingly has required that the resolution of interpre­
tive questions concerning Title VII take account of the 
policy favoring voluntary settlement (see, e.g., Johnson 
V. Transportation Agency, No. 85-1129 (Mar. 25, 1987), 
slip op. 12 & n.8; Ford Motor Co. v. EEOC, 458 U.S. at 
229, Carson v. American Brands, Inc., 450 U.S. at 88 
n.14). But the Court has also explicitly recognized, in 
two cases that are dispositive here, that the policy favor- 12

12 See also Firefighters V. Stotts, 467 U.S. 561, 589 n.4 (1984) 
(O’Connor, J., concurring) ; Franks v. Bowman Transportation 
Co., 424 U.S. 747, 787-799 (1976) (Powell, J., concurring in part 
and dissenting in part) ; Johnson V. Transportation Agency, No. 
85-1129 (Mar. 25, 1987), slip op. 19-21 (Scalia, J., dissenting); 
Firefighters V. Cleveland, slip op. 3-4 (White, J., dissenting) ; 
Bushey v. New York State Civil Service Comm’n, 469 U.S. 1117, 
1120-1121 (1985) (Rehnquist, J., dissenting from denial of cer­
tiorari).



22
ing settlement of Title VII disputes is not absolute and 
cannot by used to justify the abrogation of nonparties’ 
protected legal interests.

In W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757 
(1983), where an employer entered into a conciliation 
agreement with the EEOC that required it to disregard 
the seniority provisions of its extant collective bargaining 
agreement, the Court held that the policy favoring volun­
tary settlement of Title VII suits did not provide suffi­
cient justification for overturning an arbitration award 
that required the employer to pay damages to employees 
who would not have been laid-off had the collective bar­
gaining agreement’s seniority provisions been followed. 
The Court noted that, “ [a] lthough the ability to abrogate 
unilaterally the provisions of a collective-bargaining 
agreement might encourage an employer to conciliate with 
the [EEOC], the employer’s added incentive to conciliate 
would be paid for with the union’s contractual rights” 
(as well as with the rights of the individual employees) 
(461 U.S. at 771; id. at 770). The Court further noted 
that “ conferring such power on the [EEOC] and an em­
ployer * * * would be unlikely to further true concilia­
tion between all interested parties” (ibid, (emphasis 
added)), reasoning that, “ [a]lthough an innocent union 
might decide to join in Title VII conciliation efforts in 
order to protect its contractual position, neither the em­
ployer nor the [EEOC] would have any incentive to make 
concessions to the union * * * [since they] would know 
that they could agree without the union’s consent and that 
their agreement would be enforced” (ibid.). And, con­
versely, the Court added, “enforcing the award * * * 
should encourage conciliation and true voluntary compli­
ance with federal employment discrimination law” since 
it would require that all employees’ rights be respected in 
Title VII settlement negotiations (ibid, (emphasis 
added)).

Similarly, in Firefighters V. Cleveland, supra, where an 
employer and a minority-plaintiff class entered into a 
consent decree providing for the use of race-conscious 
remedies, the Court held that, while the policy favoring



23

voluntary settlement of Title VII suits does not bar a 
court from approving such race-conscious decrees, neither 
does that policy preclude a union representing nonminor­
ity employees from challenging such a decree on its 
merits. On the one hand, the Court noted, “ [i]t has 
never been supposed that one party—whether an original 
party, a party that was joined later, or an intervenor—  
could preclude other parties from settling their own dis­
putes and thereby withdrawing from the litigation!;] 
[t]hus, while [such a party] is entitled to present evi­
dence and have its objections heard at the hearing on 
whether to approve a consent decree, it does not have 
power to block the decree merely by withholding its con­
sent” (slip op. 26). On the other hand, the Court added, 
“parties who choose to resolve litigation through settle­
ment may not dispose of the claims of a third party * * * 
without that party’s agreement” ; “ [a] court’s approval 
of a consent decree between some of the parties * * * 
cannot dispose of the valid claims of nonconsenting 
[third-parties]” {ibid.). Rather, the Court concluded, 
“ if properly raised, these claims remain and may be liti­
gated by the [third-party]” {ibid.). Accord, id. at 1-2 
(O’Connor, J., concurring).

The Court’s analysis in W.R. Grace & Co. and Fire­
fighters v. Cleveland is therefore dispositive of both the 
voluntary settlement issue and, indeed, the larger collat­
eral attack question at issue here. For one thing, it is a 
gross overstatement to suggest, as did the court below 
(Pet. App. A l l ) ,  that a “ settlement would have no util­
ity if it failed to prevent further litigation of the mat­
ter.”  1,3 As noted in W.R. Grace & Co., to the extent the 13

13 Indeed, since the court below also suggested that the Marino 
petitioners should have intervened in the Hispanic Society and 
Guardians Association litigation (Pet. App. A12), this statement 
makes little sense at all. The parties’ incentive to settle the 
Hispanic Society and Guardians Association litigation would have 
been similarly affected had the Marino petitioners intervened there. 
The parties’ incentive to settle would be increased, if at all, only if 
the Marino petitioners had no means for challenging any settle­



24
parties are compromising their own claims and thus shar­
ing the cost of settlement among themselves, very little 
reduction in settlement incentives should occur. The par­
ties’ incentive to settle would be eroded only to the extent 
that the settlement might give rise to liability on their 
part to the Marino petitioners (for the costs of the settle­
ment, if any, that the Marino petitioners have been im­
properly asked to bear). Even then, it would appear that 
the diminution of incentive to settle between the existing 
parties would be no greater than is appropriate in light of 
the economic benefits that the settlement will have for 
them. In any event, as both W.R. Grace & Co. and Fire­
fighters v. Cleveland note,14 the policy favoring voluntary 
settlement of Title YII claims is merely part of a more 
general policy of promoting voluntary compliance with 
the statute. That more general policy is promoted only 
where all persons with an interest in a Title VII dispute 
are party to a resulting consent decree or, in the absence 
of such consensus, where any consent decree that results 
can withstand substantive challenge from adversely af­
fected third-parties. Compliance with Title VII is not 
encouraged when parties are allowed to ignore and, in­
deed, abrogate the rights of those who are not present. 
Accord, Comment, Collateral Attacks on Employment Dis­
crimination Consent Decrees, 53 U. Chi. L. Rev. at 168- 
172.

d. Indeed, because of the strict rules concerning time­
liness of intervention that have been applied by several 
courts of appeals, application of the collateral attack doc­
trine may leave many interested third-persons without

ment that was reached in the Hispanic Society and Guardians 
Association litigation.

14 See also Firefighters V. Stotts, 467 U.S. at 588 n.3 (O’Connor, 
J., concurring) ( “ if innocent employees are to be required to make 
any sacrifices in the final consent decree, they must be represented 
and have had full participation rights in the negotiation process” ) ; 
id. at 589 n.4 ( “ [t]he policy favoring voluntary settlement does 
not, of course, countenance unlawful discrimination against exist­
ing employees or applicants” ) .



25
any opportunity to be heard at all. Though we do not
agree with them, several courts of appeals, including the 
Second Circuit, have held that the timeliness of inter­
vention must be measured from the date upon which a 
complaint or proposed consent decree is filed, rather than 
from the date on which the would-be interveners’ cause- 
of-action allegedly accrued, whether their interests have 
been adversely affected at that earlier time or not. See,
e.g., United States V. Yonkers, 801 F.2d 593, 594-596 
(2d Cir. 1986) ; Deveraux v. Geary, 765 F.2d 268, 271- 
275 (1st Cir. 1985), cert, denied, No. 85-492 (July 7, 
1986) ; Corley v. Jackson Police Dep’t, 755 F.2d 1207, 
1209-1210 (5th Cir. 1985). Thus, it may well be 
impossible for third-parties (in the Second and other 
Circuits) to intervene and challenge a proposed consent 
decree: On the one hand, before the consent decree is 
made public, they may not be aware that it has been 
proposed or they may not yet have suffered (and may 
never suffer) the concrete injury on which they can prop­
erly base a motion for intervention. See, e.g., Firebird 
Society v. Bd. of Fire Commissioners, 66 F.R.D. 457 (D. 
Conn.), aff’d mem., 515 F.2d 504 (2d Cir.), cert, denied, 
423 U.S. 867 (1975). And, on the other hand, if they 
delay their attempt at intervention (until their specula­
tive interest becomes concrete), they will quite likely be 
turned away as having moved untimely to intervene.11® It 
is therefore ironic that the court below would defend its 
application of the collateral attack doctrine by reference 
to intervention principles; in fact, as applied by the 
courts of appeals (including the circuit below), the two 
doctrines have combined to create a pincers movement 
denying interested third-persons all possible recourse 
against consent decrees to which they object, thus com­
pletely depriving them of their rights under the Due Proc­
ess Clause and the federal rules of procedure. 15

15 Moreover, even where intervention is held timely, the interested 
third-persons are only allowed to voice their objections to the “rea­
sonableness” of the decree. See, e.g., Kirkland v. New York State 
Dep’t of Correction Services, 711 F.2d 1117, 1129 (2d Cir. 1983). 
This limited right of allocution before judgment is not the full 
and fair opportunity to be heard that due process requires that a



26
3. For these reasons, the collateral attack doctrine has 

been criticized and rejected by members of this Court and 
by various courts of appeals. For example, in Ashley v. 
City of Jackson, 464 U.S. at 901-902, 904, then-Justice 
Rehnquist, joined by Justice Brennan, found himself “ at a 
loss to understand the origins of the doctrine of ‘collateral 
attack’ ” ; he concluded that there is “ no justification, 
either in general principles of preclusion or the particular 
policies implicated in Title VII suits, for [a district 
court’s] refusal to take jurisdiction [in such a] case.” 
Similarly, in United States v. Jefferson County, 720 F.2d 
1511, 1518 (1983), after reviewing the cases approving 
the “ collateral attack” doctrine, the Eleventh Circuit re­
fused to “ follow this path to the extent that it deprives a 
nonparty of the decree to his day in court to assert the 
violation of his civil rights.”  Indeed, a panel of the Fifth 
Circuit, which has adopted the “ collateral attack” rule, 
has suggested the need for a “ reexamination of [that] 
doctrine in the appropriate forum, particularly in light 
of the persuasive opinion of Justice Rehnquist, joined by 
Justice Brennan, * * * in [Ashley v. City of Jackson, 464 
U.S. 900 (1983)]” (Corley v. Jackson Police Department, 
755 F.2d 1207, 1210 (1985)). See generally Feller v. 
Brock, 802 F.2d 722, 727-729 (4th Cir. 1986). We agree 
and accordingly submit that the Court should jettison the 
“collateral attack” doctrine now.

II. INDIVIDUALS WHO HAVE NOT MOVED TO 
MAKE THEMSELVES A FORMAL PARTY TO AN 
ONGOING TITLE VII SUIT ARE NOT ENTITLED 
TO APPEAL THE ENTRY OF A CONSENT DE­
CREE IN THAT LITIGATION

The court below also held that the Costello petitioners 
had no right to appeal the district court’s entry of the 
final consent decree in the consolidated Guardians Asso­
ciation/Hispanic Society litigation. While we do not en­
tirely agree with the analysis of the court below, we do 
agree with its holding.

person ultimately receive—as this Court has said. See Firefighters 
V. Cleveland, slip op. 26-27.



27
A. This Court has long held that persons who have 

not formally made themselves party to litigation have 
no right to appeal orders entered therein. See, e.g., Auto 
Workers v. Schofield, 382 U.S. 205, 209 (1965); United 
States ex rel. Louisiana v. Jack, 244 U.S. 397, 402 
(1917) ; Ex parte Leaf Tobacco Bd. of Trade, 222 U.S. 
578, 581 (1911) ; South Carolina v. Wesley, 155 U.S. 542, 
545 (1895). The term “party” includes not only the orig­
inal litigants, but also those who have intervened, been 
substituted, or joined at a later time. See United States 
v. LTV Corp., 746 F.2d 51, 53 (D.C. Cir. 1984). Other­
wise, however, the “ orderly adjudication of contesting 
rights” ( United States v. Seigel, 168 F.2d 143, 146 (D.C. 
Cir. 1948)) and the constitutional and prudential con­
cerns underlying standing doctrine (see Bender v. Wil­
liamsport Area School Dist., 475 U.S. 534, 543-545 
(1986) ; West v. Radio-Keith-Orpheum Corp., 70 F.2d 
621, 624 (2d Cir. 1934) (opinion of Hand, J .)) require 
that persons be precluded from appealing judgments to 
which they are not bound.

The Costello petitioners clearly were not parties to, and 
thus are not bound by, the consent decree entered in the 
Hispanic Society/Guardians Association litigation. They 
were not among the original contestants in the district 
court; they did not attempt to intervene; they were not 
substituted for another party; and they were not joined. 
They did not even participate in the negotiation of the 
interim or final consent orders. They merely filed written 
objections to the proposed decree and, through counsel, 
argued at the fairness hearing against the final decree’s 
entry. That the definitional provisions of the consent de­
cree arguably name them as “defendants” does not bind 
them to the district court’s judgment or establish their 
party status. “Just as the settlement cannot divest a 
plaintiff or defendant of party status in the litigation, 
it cannot confer party status on a nonparty” (Pet. App. 
A70). Moreover, “ [t]his provision of the settlement sim­
ply binds [the Costello petitioners] to comply with its 
terms in their official capacities as employees of the de­



28

fendants, and does not give them standing to raise their 
current objections to the settlement as violative of their 
individual rights” {ibid.). In short, the Costello petition­
ers, like an amicus curiae, were nothing more than inter­
ested bystanders and, accordingly, were correctly held to 
be without any right of appeal.

B. On a few isolated occasions, this Court has sug­
gested, always in dicta, that there may be exceptions to 
the rule against nonparty appeals. See United States ex 
rel. Louisiana v. Jack, 244 U.S. at 402; Ex parte Cock- 
roft, 104 U.S. 578, 579 (1881); Ex parte Cutting, 94 U.S. 
14, 20-22 (1876). Based on this dicta, a few courts of 
appeals have allowed nonparties to prosecute appeals. 
See, e.g., Citibank Int’l v. Collier-Traino, Inc., 809 F.2d 
1438, 1441 (9th Cir. 1987) (citing other Ninth Circuit 
cases as well) ; Martin-Trigona v. Skiff, 702 F.2d 380, 
385-386 (2d Cir. 1983) (citing other Second Circuit cases 
as w ell); but see United States v. LTV Corp., 746 F.2d 
at 53-55 (no non-party appeals allowed). The court 
below similarly suggested that some such exceptions to 
the rule against nonparty appeals might exist, but found 
“ none is relevant to the present matter” (Pet. App. A67). 
Although circumstances we have not been able to en­
visage may suggest a contrary conclusion, on the basis 
of our research and reflection, we are unable to under­
stand either the source of or the need for any such ex­
ceptions.

The Federal Rules of Appellate Procedure are unam­
biguous concerning who may file an appeal. Rule 3(c) 
clearly states that “  [t] he notice of appeal shall specify the 
party or parties taking the appeal * * *”  (Fed. R. App. 
P. 3(c) (emphasis added)). This “ clear and simple rule” 
admits no exceptions (Moten v. Bricklayers Int’l Union, 
543 F.2d 224, 227 (D.C. Cir. 1976)). Moreover, as noted 
earlier (see pages 11-26, supra), persons aggrieved by 
conduct resulting from a judgment or consent decree to 
which they are not party may assert their claims in sepa­
rate, collateral actions. Accord, Firefighters v. Cleveland, 
slip op. 26-27; W.R. Grace & Co. v. Rubber Workers, 461



29
U. S. at 770-772. Indeed, if they wish to file an appeal 
from the original judgment, they may file a motion for 
post-judgment intervention and, of course, appeal the 
denial of any such motion. Accord, United Airlines, Inc.
V. McDonald, 432 U.S. 385, 395 (1977); United States 
V. LTV Corp., 746 F.2d at 54 n.9; In re Proceedings Be­
fore the Federal Grand Jury, 643 F.2d 641, 643 (9th Cir. 
1981). Because nonparty appeals are without either ap­
parent authority or necessity, and because substantial 
constitutional and prudential reasons weigh against non- 
party appeals (see Bender v. Williamsport Area School 
Dist., 475 U.S. at 543-545; United States v. Seigel, 168 
F.2d at 146), judicially crafted exceptions to the rule 
against nonparty appeals should be resisted.16

In any event, except for the court below,17 those courts 
which have allowed nonparty appeals have done so only 
where the nonparties have actively participated in the 
district court and the equities strongly favor allowing an 
appeal to go forward. They have considered such factors 
as whether the district court invited the nonparty to 
participate in the litigation, whether the nonparty at­
tempted to intervene, the extent to which the nonparty 
did in fact participate, and the extent to which the dis­
trict court’s judgment has affected the nonparty’s inter­
ests. See Citibank Int’l v. Collier-Traino, Inc., 809 F.2d 
at 1441; Bank of America v. M/V Executive, 797 F.2d 
772, 774 (9th Cir. 1986) ; Martin-Trigona v. Shiff, 702

16 We note that when it intimated that there may be exceptions 
to the rule against nonparty appeals, the Court apparently was 
under the impression that orders denying motions to intervene 
were unappealable. See United States ex rel. Louisiana v. Jack, 
244 U.S. at 402; Ex parte Leaf Tobacco Bd. of Trade, 222 U.S. at 
581; Ex parte Cutting, 94 U.S. at 22. That clearly is no longer 
the case. See United Airlines, Inc. V. McDonald, 432 U.S. at 395.

17 The exception articulated by the court below would all but 
swallow the rule against nonparty appeals and must be rejected. 
Accord, United States v. LTV Corp., 746 F.2d at 53-54. Almost 
any person with an interest in intervening could show that he or 
she is privy to the record and “has an interest that is affected 
by the trial court’s judgment” (Pet. App. A67).



30
F.2d 380, 385-386 (2d Cir. 1983); SEC v. Lincoln Thrift 
Ass’n, 577 F.2d 600, 603 (9th Cir. 1978). Here, the dis­
trict court did not invite the Costello petitioners to par­
ticipate as parties in the proceedings, and the Costello 
petitioners made no attempt to participate in the consent 
decree negotiations or to intervene before or after the 
entry of the consent decree. See Pet. App. A76-A78. 
Their participation was limited to the submission of writ­
ten and oral objections concerning the entry of the final 
consent order and, even here, they submitted “no affi­
davits or other sworn allegations describing their indi­
vidual status as police officers or as candidates for ser­
geant” (id. at A77). Accordingly, there is no basis upon 
which to evaluate the effect of the district court’s judg­
ment on the Costello petitioners’ interests. Thus, the 
equities must be held to weigh against their request for 
a nonparty appeal.

CONCLUSION
The judgment of the court of appeals should be affirmed 

in part, reversed in part, and remanded for further pro­
ceedings consistent with the position advanced herein.

Respectfully submitted.

Charles Fried 
Solicitor General

Wm . Bradford Reynolds
Assistant Attorney General

Donald B. Ayer 
Deputy Solicitor General

Roger Clegg
Deputy Assistant Attorney General

Glen D. Nager
Assistant to the Solicitor General

David K. Flynn
Dennis J. Dimsey 

Attorneys
July 1987

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