Marsh v The County School Board of Roanoke County Appendix to Appellants Brief

    No. 86-1415

In T he

Ipuyrme (Hmtrl nf tlj? IHnittb States
O ctober T erm 1987

Evelyn M arino, et al,
Petitioners,

v.

Juan V. Ortiz, et aL,
Respondents.

and

W ayne Costello, et al.,
Petitioners,

v.

N ew Y ork C ity P olice D epartment, et al.,
Respondents.

O n W rit of Certiorari to the 
United States Court of A ppeals for the Second C ircuit

MOTION OF THE LAWYERS’ COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW FOR LEAVE TO FILE A 

BRIEF AM ICUS CURIAE AND PROPOSED 
BRIEF IN SUPPORT OF RESPONDENTS

Conrad K. Harper 
Stuart J. Land 

Co-Chairmen 
N orman Redijch 

Trustee
William L. Robinson 
Judith A. Winston 
Richard T. Seymour 
Stephen L. Spitz

Lawyers’ Committee for 
Civil Rights Under Law 

1400 Eye Street, N.W.
(Suite 400)
Washington, D.C. 20005 
(202) 371-1212

August 22, 1987

Paul C. Saunders 
Counsel of Record
Thomas D. Barr 
Robert D. Joffe 
Robert F. Mullen 
Alden L. Atkins 
Mark A. Sirota 
James E. Fleming 

Cravath, Swaine & Moore 
One Chase Manhattan Plaza 
New York, New York 10005 
(212) 422-3000

Attorneys for the Lawyers’ 
Committee for Civil Rights Under 
Law as Amicus Curiae



No. 86-1415

In The

Supreme <£mtrt of tl|T l&nxtib B M bb
October T erm 1987

Evelyn M arino, et al.,
Petitioners,

v.

Juan V. O rtiz, et al,
Respondents.

and

W ayne Costello, et al.,
Petitioners,

v.

N ew  Y ork C ity P olice D epartment, et al,
Respondents.

On W rit of Certiorari to the 
U nited States Court of Appeals for the Second C ircuit

MOTION OF THE LAWYERS’ COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW FOR LEAVE TO FILE A 

BRIEF AM ICUS CURIAE

Pursuant to Rule 36.3 of the Rules of this Court, the 
Lawyers’ Committee for Civil Rights Under Law (the “Law­
yers’ Committee” ) respectfully moves for leave to file a brief 
amicus curiae in support of respondents in the above-captioned 
proceeding. In support of this motion, the Lawyers’ Committee 
states:

1. Although respondents have consented to the filing 
of the attached brief amicus curiae, the Lawyers’ Com­
mittee has been unable to contact counsel for petitioners, 
despite diligent efforts, to obtain their consent.



2

2. The Lawyers’ Committee has represented minor­
ities and women in employment discrimination actions 
nationwide. Many of these actions have concluded with 
litigated or consensual orders providing remedial race­
conscious relief. The position advocated by petitioners and 
the Solicitor General as amicus curiae, if adopted by this 
Court, could subject the decrees to which the Lawyers’ 
Committee’s clients—and many others—are parties to 
endless, and we believe improper, attack. The Lawyers’ 
Committee has an essential interest in the vitality and 
integrity of those decrees and believes that they should not 
be undermined, or even threatened, by a change in the law 
that would permit collateral attacks by persons who de­
clined an opportunity to intervene.

3. In addition, the Lawyers’ Committee has special 
expertise in the area of employment discrimination litiga­
tion that may not be shared by all of the parties.
For the foregoing reasons, the Lawyers’ Committee for 

Civil Rights Under Law hereby respectfully requests that the 
Court grant this motion for leave to file a brief amicus curiae in 
support of respondents.

August 22, 1987
Respectfully submitted,

Paul C. Saunders 
Counsel of Record

Stuart J. Land 
Co-Chairmen

Conrad K. Harper

William L. Robinson 
Judith A. Winston 
Richard T. Seymour 
Stephen L. Spitz

N orman Redlich 
Trustee

Lawyers’ Committee for

Thomas D. Barr 
Robert D. Joffe 
Robert F. Mullen 
Alden L. Atkins 
Mark A. Sirota 
James E. Fleming

Cravath, Swaine & Moore 
One Chase Manhattan Plaza 
New York, New York 10005 
(212) 422-3000

Civil Rights Under Law 
1400 Eye Street, N.W. 
(Suite 400)
Washington, D.C. 20005 
(202) 371-1212

Attorneys for the Lawyers’ 
Committee for Civil Rights Under 
Law as Amicus Curiae



TABLE OF CONTENTS

T able of Authorities............................................................ ii
P roposed Brief of the Lawyers’ Committee for

C ivil R ights U nder Law as Am icus Curiae..........  1
Interest of Am icus Cu r ia e ...........................................  1
Statement of the Ca se .........................................................  3
Summary of the Argument........................    5
A rgument..................................................................................  6
I. P ersons W ho H ad N otice of A P roposed Con­

sent D ecree and the O pportunity to Be H eard 
Should N ot Be Allowed to Attack T hat D e­
cree C ollaterally......................    6
A. Public Policy Requires That Persons Who 

Had the Opportunity to Be Heard Should Not
Be Allowed to Attack a Decree Collaterally....  10

B. Settled Principles of Comity Between Federal
Courts Bar Attempts to Appeal the Ruling of 
One District Court to Another Through 
Collateral Proceedings....................................... 14

C. Petitioners’ Decision to Bypass Intervention in
the Hispanic Society Action Precludes Them 
from Relitigating the Merits of the Consent 
Decree................ ... ....................... ..................... 17

D. Rule 19 Does Not Require Parties to a Con­
sent Decree to Join All Persons Who May Be 
Affected by the Decree..................................... 21

E. Persons Who Had Notice of a Proposed De­
cree and the Opportunity to Be Heard Have 
No Due Process Right to Bring a Collateral 
Action..................................................................  24

II. In A ny Event, P etitioners’ Interests in the
H ispanic  Society A ction W ere A dequately 
R epresented by the P arties W ho W ere Present . 25

Conclusion ............................................................................... 28

Page



TABLE OF AUTHORITIES

Adams v. Morton, 581 F.2d 1314 (9th Cir. 1978), cert, 
denied, 440 U.S. 958 (1979) ........................................ 20

Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th 
Cir.), cert, denied, 423 U.S. 908 (1975) .....................  26

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) .. 12
American Civil Liberties Union v. Board of Educ. of 

Maryland, 357 F. Supp. 877 (D. Md. 1972) ...............  22
Armstrong v. Manzo, 380 U.S. 545 ( 1965) .....................  24
Ashley v. City of Jackson, 464 U.S. 900 (1983) ............... 10, 11
In re Birmingham Reverse Discrimination Employment 

Litigation, 39 Fair Empl. Prac. Cas. (BNA) 1431 
(N.D. Ala. 1985) ..........................................................  2

Bell v. Board of Educ., 683 F.2d 963 (6th Cir. 1982) ....  26
Black and White Children of the Pontiac School Sys. v.

School Dist., 464 F.2d 1030 (6th Cir. 1972) (per 
curiam )..........................................................................  14, 15

Board of Regents v. Roth, 408 U.S. 564 (1972) ............  23
Bolden v. Pennsylvania State Police, 578 F.2d 912 (3d

Cir. 1978) ......................................................................  19-21,26
Brumfield v. Dodd, 425 F. Supp. 528 (E.D. La. 1976) .... 22
Chicago Rock Island & Pac. Ry. v. Schendel, 270 U.S.

611 (1926) ....................................................................  25
Common Cause v. Judicial Ethics Comm., 473 F. Supp.

1251 (D.D.C. 1979) .....................................................  14
Construction Indus. Combined Comm. v. International 

Union of Operating Eng’rs, Local 513, 67 F.R.D. 664 
(E.D. Mo. 1975) ...........................................................  14-15

Corley v. Jackson Police Dep’t, 755 F.2d 1207 (5th Cir.
1985) .............................................................................  11

Culbreath v. Dukakis, 630 F.2d 15 (1st Cir. 1980) ........  10, 12
Cummins Diesel Michigan, Inc. v. The Falcon, 305 F.2d 

721 (7th Cir. 1962) .......................................................  20
Delaware Valley Citizens’ Council for Clean Air v. 

Pennsylvania, 755 F.2d 38 (3d. Cir.), cert, denied,
106S.Ct. 67 (1985) ......................................................  15

ii

Page



Page

Dennison v. City o f Los Angeles Dep’t o f Water &
Power, 658 F.2d 694 (9th Cir. 1981) ................. ......... 10-12

Deposit Bank v. Frankfort, 191 U.S. 499 (1903) .... . 15
EEOC v. American Tel. cfe Tel, 556 F.2d 167 (3d Cir.

1977), cert, denied, 438 U.S. 915 ( 1978) ................ 14
Expert Elec., Inc. v. Levine, 554 F.2d 1227 (2d Cir.), 

cert, denied, 434 U.S. 903 ( 1977) ......... ......................  25

Exxon Corp. v. Department o f Energy, 594 F. Supp. 84
(D. Del. 1984) ....... ............................................... ....... 16

Feller v. Brock, 802 F.2d 722 (4th Cir. 1986) ................  14, 16
General Foods v. Department o f Public Health, 648 F.2d 

784 ( 1st Cir. 1981) .... ................................................... 25-26
Goins v. Bethlehem Steel Corp., 657 F.2d 62 (4th Cir.

1981), cert, denied, 455 U.S. 940 (1982) ...................  10,14-16
Grann v. City of Madison, 738 F.2d 786 (7th Cir.), cert, 

denied, 469 U.S. 918 ( 1984) ........................................ 20
Gregory-Portland Indep. School Dist. v. Texas Educ.

Agency, 576 F.2d 81 ( 5th Cir. 1978), cert, denied, 440 
U.S. 947 (1979) ............................................................  14-16

Hansberry v. Lee, 311 U.S. 32 (1940) ..............................  25, 26
Heckman v. United States, 224 U.S. 413 ( 1912) ...........  25
Hispanic Society v. New York City Police Dep’t, 40 

Empl. Prac. Dec. (CCH) ff 36,385 (S.D.N.Y. 1986), 
ajf’d, 806 F.2d 1147 (2d Cir. 1986), cert, granted,
107 S. Ct. 2177, amended, 107 S. Ct. 3182 ( 1987) .....  13,27

Howard v. McLucas, 782 F.2d 956 (1 1th Cir. 1986) .....  11,18
Kerrison v. Stewart, 93 U.S. 155 ( 1876)................. ....... 25
Kirkland v. Department o f Correctional Servs., 711 F.2d 

1117 (2d Cir. 1983), cert, denied, 465 U.S. 1005 
(1984) ...........................................................................  17

Kremer v. Chemical Constr. Co., 456 U.S. 461 (1982) ... 7-8, 24
LaRouche v. FBI, 677 F.2d 256 (2d Cir. 1982) ............  17
Local 28, Sheet Metal Workers ’ In t’l Ass’n v. EEOC,

106S. Ct. 3019 (1986) ................................................. 9-10



IV

Local 93. In t’l Ass’n o f Firefighters v. City o f Cleveland,
106 S. Ct. 3063 (1986) .................................................  10-12

Marine Power & Equip. Co. v. United States, 594 F.
Supp. 997 (D.D.C. 1984) ............................................. 20

Matthews v. Eldridge, 424 U.S. 319 ( 1976) ....................  24
Mullane v. Central Hanover Bank & Trust Co., 339 U.S.

306 (1950) ..................................................... ............... 24
Nash County Bd. o f Educ. v. Biltmore Co., 640 F.2d 484 

(4th Cir.), cert, denied, 454 U.S. 878 ( 1981) .............  25
National Wildlife Fed’n v. Gorsuch, 744 F.2d 963 (3d

Cir. 1984) ......................................................................  20,21
O’Burn v. Shapp. 70 F.R.D. 549 (E.D. Pa.), aff’d mem.,

546 F.2d 418 (3d Cir. 1976), cert, denied, 430 U.S.
968 (1977)....................................................................  10-12

Penn-Central Merger and N&W Inclusion Cases, 389 
U.S. 486 (1968) ............................................................  19

Phillips v. Carborundum Co., 361 F. Supp. 1016 
( W.D.N.Y. 1973) .........................................................  23

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) ........................................ 8, 10, 12, 17

Prate v. Freedman, 583 F.2d 42 (2d Cir. 1978) .............  8, 17
Provident Tradesmens Bank & Trust Co. v. Patterson,

390 U.S. 102 (1968) ..................................................... 19
Safir v. Dole, 718 F.2d 475 (D.C. Cir. 1983), cert, 

denied, 467 U.S. 1206 ( 1984) ...................................... 19
Schmieder v. Hall, 545 F.2d 768 (2d Cir. 1976), cert, 

denied, 430 U.S. 955 ( 1977) ........................................ 12
Southwest Airlines Co. v. Texas In t’l Airlines, 546 F.2d 

84 (5th Cir.), cert, denied, 434 U.S. 832 ( 1977) ........  26
Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir.

1977) .............................................................................  18
Stotts v. Memphis Fire Dep’t, 679 F.2d 541 (6th Cir.

1982), rev d  sub nom. Firefighters Local Union No.
1784 v. Stotts, 467 U.S. 561 ( 1984) ............................  10

Page



V

Page

System Fed’n v. Wright, 364 U.S. 642 (1961) ................  15

Telephone Workers Union, Local 827 v. New Jersey Bell
Tel, 584 F.2d 31 (3d Cir. 1978) .................................. 25-26

Thaggard v. City of Jackson, 687 F.2d 66 (5th Cir.
1982), cert, denied sub nom. Ashley v. City o f Jackson,
464 U.S. 900 (1983) .....................................................  10-12

Treadway v. Academy of Motion Picture Arts & Sciences,
783 F.2d 1438 (9th Cir. 1986) ................................ . 16

Treasure Salvors, Inc. v. Unidentified Wreck, 459 F.
Supp. 507 (S.D. Fla. 1978), aff’d sub nom. Florida 
Dep’t o f State v. Treasure Salvors, Inc., 621 F.2d 
1340 (5th Cir. 1980), ajf’d in part and rev’d in part,
458 U.S. 670 (1982) .......................... ..........................  20

United States v. Allegheny-Ludlum Indus., 517 F.2d 826 
(5th Cir.), cert, denied, 425 U.S. 944 (1975) .............  14

United States v. Geophysical Corp., 732 F.2d 693 (9th 
Cir. 1984) .............. .......................................................  25

United States v. Jefferson County, 720 F.2d 1511 (11th 
Cir. 1983) ...................................................................... 10

United States v. Hooker Chem. & Plastics Co., 540 F.
Supp. 1067 (W.D.N.Y. 1982) ....................................... 17-18

United Airlines v. McDonald, 432 U.S. 385 ( 1977) .......  27

United States v. Swift & Co., 286 U.S. 106 (1932) ........  15

United States v. Texas, 330 F. Supp. 235, a ff’d and 
modified, 447 F. 2d 441 (5th Cir. 1971), cert, denied,
404 U.S. 1016 (1972) ................................................... 15

United States v. Yonkers Bd. o f Educ., 801 F.2d 593 (2d 
Cir. 1986) ......................................................................  18

Wainwright v. Sykes, 433 U.S. 72 ( 1977) .......................  18

Western Coal Traffic League v. ICC, 735 F.2d 1408 
(D.C. Cir. 1984) ........................................................... 25



VI

Statutes, R ules and R egulations:

28 U.S.C. § 112(c) ......................................................... 14

28 U.S.C. § 1404(a) .........................................................  16

42 U.S.C. § 2000e-5(b) ....................................................  12

42 U.S.C. § 2000e-5(f)(l) ...............................................  7

FedR. Civ. P. 19.................... ..........................................  5,9,21-23

Fed R. Civ. P. 4 2 ...............................................................  16

Rule 15, Rules for the Division of Business Among 
District Judges, Southern District of New York .......  4

29 C.F.R. § 1608.1(b) (1986) ......................................... 12

Other Authorities:

F. James & G. Hazard, Civil Procedure § 11.31 (2d ed.
1977) ..................... .......................................................  20

New York Times, August 13, 1986 at B8 .......................  10

Note, Preclusion of Absent Disputants to Compel Inter­
vention, 79 Colum. L. Rev. 1551 (1979) ....................  20

Schwarzschild, Public Law by Private Bargain: Title VII 
Consent Decrees and the Fairness of Negotiated In­
stitutional Reform, 1984 Duke L. J. 887 .....................  13

Page



No. 86-1415

In The

(Eourt n! tljr llniteft States
O ctober Term 1987

Evelyn M arino, et al,
Petitioners,

v.

Juan V. Ortiz, et al.,
Respondents.

and

W ayne Costello, et al.,
Petitioners,

v.

N ew  Y ork City P olice D epartment, et al.,
Respondents.

On W rit of C ertiorari to the 
U nited States Court of A ppeals for the Second C ircuit

PROPOSED BRIEF OF THE LAWYERS’ COMMITTEE 
FOR CIVIL RIGHTS UNDER LAW 

AS AM ICUS CURIAE

INTEREST OF AM ICUS CURIAE
The Lawyers’ Committee for Civil Rights Under Law (the 

“Lawyers’ Committee” ) is a nationwide civil rights organiza­
tion that was formed in 1963 at the request of President 
Kennedy to provide legal representation to blacks who were



2

being deprived of their civil rights. The national and local 
offices of the Lawyers’ Committee have represented the inter­
ests of blacks, Hispanics and women in hundreds of class 
actions relating to employment discrimination, voting rights, 
equalization of municipal services and school desegregation. 
Many of those lawsuits have led to remedial orders contained in 
consent decrees or in court orders entered after fully litigated 
trials.

Some of those consent decrees and orders are being 
challenged in collateral proceedings. For example, in Birming­
ham, Alabama, the Lawyers’ Committee, on behalf of blacks, 
and the Department of Justice sued the City of Birmingham 
and the Jefferson County Personnel Board for employment 
discrimination. After seven years of litigation, including two 
trials and one appeal, the parties entered into consent decrees 
containing race-conscious relief. Nonminorities have chal­
lenged those decrees in collateral lawsuits, subjecting the 
parties to those decrees thus far to six additional years of 
litigation. The Department of Justice, although a party to the 
original decrees, has brought its own “reverse discrimination” 
suits and has supported the collateral attacks. See generally In 
re Birmingham Reverse Discrimination Employment Litigation, 
39 Fair Empl. Prac. Cas. (BNA) 1431 (N.D. Ala. 1985).

The position asserted here by petitioners and the Solicitor 
General, if accepted, may lead to collateral challenges of other 
decrees to which our clients—and many others—are parties. As 
has proven true in the Birmingham litigation, the litigation 
would be endless. The result could be catastrophic.



3

STATEMENT OF THE CASE^

In 1984, the Hispanic Society and the Guardians Associa­
tion sued the New York City Police Department and other 
municipal defendants, alleging that the promotional exam­
ination for the position of Police Sergeant was racially dis­
criminatory (these actions will be referred to collectively as the 
“Hispanic Society action” ). Three groups intervened in the 
Hispanic Society action: the Sergeants’ Benevolent Association, 
on behalf of officers who had been provisionally appointed to 
Sergeant from the list of eligible persons who had passed the 
examination; the Sergeants Eligibles Association, on behalf of 
officers who were on the eligible list but who had not yet been 
promoted; and the “Schneider Intervenors”, on behalf of other 
nonminority officers.

After extensive discovery, the municipal defendants con­
cluded that the examination had an adverse impact on minor­
ities and that they might not be able to prove that the 
examination was job related, and settlement negotiations en­
sued. All of the parties except the Schneider Intervenors 
entered into an interim settlement that provided (1) that 
persons on the eligible list would be promoted and (2) that 
additional minority officers would be promoted until the per­
centage of minorities promoted equalled the percentage of 
minorities who took the examination. The district court 
approved the interim settlement in an order dated November 
27, 1985. J.A. 45-48.1 2 The parties entered into a consent decree 
that had the effect of continuing and formalizing the interim

1 We summarize only so much of the factual and procedural 
history of the case as is relevant to the argument made in this brief. 
We respectfully refer the Court to the statements of the case of the 
respondents in their respective briefs and to the decisions of the courts 
below for a comprehensive review of the facts.

2 The form of citations is as follows: the Brief of Petitioners is 
cited as “Petitioners’ Br.”; the Brief for the United States as Amicus 
Curiae is cited as “Gov’t Br.”; the Joint Appendix is cited as “J.A.”; 
the appendix to the petition for certiorari is cited as “Pet. App.”; and 
the Record on Appeal in Marino is cited as “R.”.



4

order, and the district court ordered that notice of the proposed 
consent decree be given to members of the plaintiff and 
intervenor classes and posted in every police precinct in New 
York City. J.A. 84. Persons who objected to the proposed 
consent decree were invited to participate in a settlement 
hearing. J.A. 50.

After the interim order but before the settlement hearing, 
Evelyn Marino, et al., (the “Marino petitioners” ), sued New 
York City, alleging that the promotion of minorities with 
examination scores below their own scores violated their rights 
under Title VII and the Equal Protection Clause of the United 
States Constitution (the “Marino action” ). Over the opposition 
of the Marino plaintiffs (R. 49-50), the Marino action was 
transferred to Judge Carter, who was presiding over the 
Hispanic Society action, pursuant to a local rule providing that 
the same judge should hear related cases.3 For unknown 
reasons, although the municipal defendants explicitly invited 
the Marino petitioners to intervene in the Hispanic Society 
action rather than to maintain a separate lawsuit, they did not 
do so. R. 15; Pet. App. 37. Judge Carter therefore dismissed 
the Marino action as an impermissible collateral attack on the 
interim order and the proposed consent decree, and the court of 
appeals affirmed.

At the settlement hearing, the same lawyer who represent­
ed the plaintiffs in Marino objected to the proposed decree on 
behalf of Wayne Costello, et al., (the “Costello petitioners” ), 
who apparently include the Marino petitioners and all others 
similarly situated. Petitioners’ Br. at 11. Those petitioners also 
elected not to intervene in the Hispanic Society action. Judge 
Carter approved the consent decree over their objections. Pet. 
App. 80-99. The Costello petitioners sought to appeal, but 
since they were, by their own choosing, not parties, the court of 
appeals dismissed the appeal.

3 See Rule 15, Rules for the Division of Business Among District 
Judges, Southern District of New York.



5

SUMMARY OF THE ARGUMENT

The well-established rule prohibiting collateral attacks by 
persons who received notice of a proposed consent decree and 
had an opportunity to intervene should be applied here to 
affirm the decisions below. The petitioners had actual notice of 
the proposed consent decree and were heard in opposition to 
that decree. They were given the opportunity—indeed, were 
invited—to intervene, but they deliberately chose not to do so. 
Having been given notice and the opportunity to be heard, 
petitioners should not be allowed to maintain a collateral 
lawsuit challenging that decree.

The policies supporting the rule are well known: collateral 
attacks create the possibility that the parties to a decree could 
be subjected to inconsistent court orders; they allow persons to 
relitigate issues that were or could have been litigated before; 
they undermine the authority of federal courts to issue orders 
and judgments; and they discourage parties from settling Title 
VII cases. In addition, a collateral attack necessarily calls upon 
a court to reconsider a judgment in another lawsuit that may 
have been entered by another judge or even by another court. 
This violates settled rules of comity, a principle that the rule 
prohibiting collateral attacks is designed to protect.

The Solicitor General argues for a broad—and, we believe, 
an unnecessary and dangerous—change in the law'. Five years 
ago, the Solicitor General argued that collateral attacks should 
not be allowed and articulated sound policy reasons for that 
position. Now, he argues that they should always be permitted. 
The Solicitor General’s current position would jeopardize all 
Title VII consent decrees, rendering them uncertain and throw­
ing them open to endless collateral attacks. There is no valid 
reason, either in law or logic, for that position.

Both the Solicitor General and petitioners also now argue 
that the parties to the consent decree should have joined 
petitioners pursuant to Rule 19. Petitioners did not raise that 
argument below; in fact, they did everything they could in the 
district court to avoid becoming parties. Nor is there any



6

reason why they should have been joined. Rule 19 does not 
require joinder of all persons who may eventually come to 
believe that they have been affected by the outcome of litiga­
tion. Obviously, the parties cannot join persons whose interests 
are inchoate or persons, like petitioners, who have no legitimate 
interest in the decree at all. Moreover, joining everyone who 
might conceivably be interested would be unwieldy at best, 
because the number of potentially interested persons may be 
quite large, and impossible at worst, because those being joined 
(or their class representative) may not want to be bound by the 
decree.

Requiring persons with notice of the decree to intervene, 
rather than requiring them to be joined, does not deny them 
any due process rights. The Due Process Clause only requires 
that persons be given notice and the opportunity to be heard. 
Petitioners had both.

Finally, this Court has long recognized that the parties to a 
lawsuit can virtually represent the interests of others who are 
absent, thus binding them. Here, the vague interests of 
petitioners, who would not have been promoted with or without 
the consent decree, were well represented by persons with far 
more substantial interests.

ARGUMENT

I. PERSONS WHO HAD NOTICE OF A PROPOSED 
CONSENT DECREE AND THE OPPORTUNITY TO BE 
HEARD SHOULD NOT BE ALLOWED TO ATTACK 
THAT DECREE COLLATERALLY.

At issue is whether persons who claim to be affected by a 
consent decree, had notice of the decree, participated in the 
settlement hearing and had an opportunity to intervene but 
declined to do so, may attack that decree in a collateral lawsuit. 
We urge that they may not.

The general rule in this country has been that collateral 
attacks are, if not always impermissible, at least highly dis-



7

favored. Until recently, that rule had the vigorous support of 
the Department of Justice. Those few courts that have per­
mitted collateral attacks have made it clear that if they are to be 
permitted at all, they should be a procedure of last resort, 
available only to those who did not have an opportunity—or 
were unfairly refused an opportunity—to intervene in the first 
case. It is obvious in this case that the petitioners deliberately 
chose not to intervene in the first case, but instead to launch a 
collateral attack as a tactic of first, rather than last, resort. That 
should not be permitted.

But what is of even more concern to us is that the Solicitor 
General is arguing here for a rule of broad applicability that 
would permit collateral attacks by nonparties under all circum­
stances. Such a rule might have far-reaching and potentially 
disastrous consequences for women and minorities who have 
received the benefit of consent and litigated decrees redressing 
the effects of years of racial and gender-based discrimination.

We agree that persons who are affected by and wish to 
challenge the relief contained in a proposed consent decree 
should be given reasonable notice and the opportunity to 
intervene before the court considers the lawfulness of the 
proposed decree. But if they deliberately forego that oppor­
tunity, they should not be allowed to attack the decree 
collaterally.

There is nothing inherently unfair in a rule that precludes 
collateral attack by those who did not first seek to intervene, 
absent, of course, extraordinary circumstances. The fact that 
the would-be attackers may lose their day in court by deliber­
ately choosing not to intervene ought to be of no concern. It 
often happens that persons who sit on their rights, or who elect 
the wrong forum in which to assert them, lose them. For 
example, employment discrimination plaintiffs who do not sue 
within 90 days after receiving a “ right to sue” letter forever lose 
their right to a day in court. See Title VII § 5(f)( 1), 42 U.S.C. 
§ 2000e-5(f)( 1). In fact, a person may lose the opportunity for 
a day in court by making an election with consequences that 
were not foreseen. See Kremer v. Chemical Constr. Corp., 456



8

U.S. 461, 485 (1982) (plaintiff’s decision to appeal a state 
agency’s rejection of his employment discrimination claim to a 
state court, rather than to press his claim before the EEOC, 
barred a subsequent Title VII suit).

Here, unlike the situation in Kremer, the petitioners should 
have known full well that the consequence of their failure to 
intervene was that their collateral attack would be precluded. 
The law in the Second Circuit has been clear and unambiguous 
on that point for years. See Prate v. Freedman, 573 F.2d 1294 
(2d Cir. 1977), aff’g mem., 430 F. Supp. 1373 (W.D.N.Y.), 
cert, denied, 436 U.S. 922 ( 1978); see also Prate v. Freedman, 
583 F.2d 42 (2d Cir. 1978) (awarding attorneys fees against 
plaintiffs who collaterally attacked a consent decree). Petition­
ers knew, or should have known, that by failing to intervene, 
they would lose their day in court, it is the opportunity to be 
heard, not an actual hearing, to which petitioners were entitled. 
Having foregone the former, petitioners had no right to the 
latter.

The facts of this case are somewhat peculiar. It is hard to 
understand why petitioners deliberately elected not to intervene 
in the face of controlling Second Circuit precedent. The Marino 
petitioners can hardly argue that because their separate lawsuit 
was transferred to Judge Carter, they had effectively intervened, 
since they actively opposed that transfer. See R. 49-50. This 
case is also unusual in that the collateral attack was made six 
months before the decree under attack became final, giving 
petitioners more than ample opportunity to make their voices 
heard in the proper way. We do not know why they did not do 
so. Equally perplexing is the fact that the petitioners did not 
actually lose anything by the consent decree to which they 
objected. The merits of their collateral attack border on the 
frivolous.

Because of those and other peculiarities, this case could 
well be decided on a basis that would limit the decision to the 
unusual facts of the case. Our concern, however, is that if for 
any reason this case is reversed and remanded, it may be seen 
as opening the doors wide to permit collateral attacks on all 
consent decrees or final orders by disgruntled white employees.



9

Our fear is heightened by the unnecessarily broad sweep of the 
position taken by the Solicitor General.

The Solicitor General now argues that collateral attacks 
should be permitted by anyone who was not a party to the 
original decree. Moreover, he argues that the parties ought to 
have an affirmative obligation under Rule 19 to join anyone 
who might later seek to attack a decree. See Gov’t Br. at 17-19. 
That argument turns procedure and common sense on its head 
and is dangerous. The Solicitor General argues that petitioners’ 
deliberate decision not to intervene should not preclude their 
collateral attack and that the real problem was created by 
respondents’ failure to join petitioners as parties. There can be 
no rational explanation for such a backwards argument. In­
deed, the Solicitor General took a flatly contrary position just 
five years ago before this very Court:

“To permit independent lawsuits challenging the 
validity of consent decrees over which a court has retained 
jurisdiction would foster an unnecessary proliferation of 
lawsuits, create a needless danger of inconsistent or con­
tradictory adjudications, and create uncertainty as to a 
decree’s validity and finality. The rule against collateral 
attacks is necessary and appropriate to enable the court, 
which has approved the entry of the decree and is thus in 
the best position to judge whether changed circumstances 
warrant its modification, to ensure the decree’s just and 
orderly implementation.” Brief for the United States in 
Opposition to Petition for Writ of Certiorari, Ashley v. City 
of Jackson, No. 82-1390 ( 1982) at 4 (citations omitted).

One can speculate as to why the Solicitor General has 
changed his position. The Department of Justice is a party to at 
least fifty employment discrimination decrees containing race­
conscious relief. It is no secret that the Department of Justice is 
unhappy with those decrees and has sought to reopen many of 
them. It was only after this Court rejected the Solicitor 
General’s argument that race-conscious relief for nonvictims of 
discrimination is always improper {see Local 28, Sheet Metal



10

Workers’ In t’l Ass’n v. EEOC, 106 S. Ct. 3019, 3035, 3054, 
3062-63 (1986); Local 93, In t’l Ass’n of Firefighters v. City of 
Cleveland, 106 S. Ct. 3063, 3073 ( 1986) (“Local 93’’)), that 
the Department of Justice has taken the position that non­
minorities should be allowed to attack collaterally consent 
decrees that contain race-conscious relief and has encouraged 
attacks on decrees to which it is a party. See New York Times, 
August 13, 1986 at B8 (attached hereto as Appendix A). 
Permitting unlimited collateral attacks would threaten each of 
those decrees, thus rendering them tentative and uncertain. In 
sum, the Department of Justice is seeking to do indirectly what 
it has so far failed to do directly.

A. Public Policy Requires That Persons Who Had 
the Opportunity to Be Heard Should Not Be Allowed 
to Attack a Decree Collaterally.

The overwhelming majority of lower federal courts have 
held that a Title VII consent decree cannot be collaterally 
attacked by a person who had notice and the opportunity to be 
heard in opposition to its entry. See Thaggard v. City of 
Jackson, 687 F.2d 66 (5th Cir. 1982), cert, denied sub nom. 
Ashley v. City o f Jackson, 464 U.S. 900 (1983); Stotts v. 
Memphis Fire Dep’t, 679 F.2d 541, 558 (6th Cir. 1982), rev’d 
on other grounds sub nom. Firefighters Local Union No. 1784 v. 
Stotts, 467 U.S. 561 (1984); Goins v. Bethlehem Steel Corp., 
657 F.2d 62 (4th Cir. 1981), cert, denied, 455 U.S. 940 ( 1982); 
Dennison v. City o f Los Angeles Dep’t o f Water & Power, 658 
F.2d 694, 696 (9th Cir. 1981); Culbreath v. Dukakis, 630 F.2d 
15, 22-23 ( 1st Cir. 1980); 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); O’Burn v. Shapp, 70 F.R.D. 549, 
552-53 (E.D. Pa.), aff’d mem., 546 F.2d 418 (3d Cir. 1976), 
cert, denied, 430 U.S. 968 (1977).4 Compelling policy justifica­
tions support that rule.

4 The Eleventh Circuit’s position is unclear. In United States v. 
Jefferson County, 720 F.2d 1511, 1518 (11th Cir. 1983), the court 
suggested that it disagreed with the doctrine that a collateral attack is 
not permissible “to the extent that it deprives a nonparty to the decree 
of his day in court”. In a later case, the same court said that the 
lawfulness of a consent decree would be “foreclosed in a separate



11

First, permitting collateral attacks on a decree, especially 
one containing mandatory injunctive relief, would create the 
risk of imposing inconsistent obligations on the employer. This 
Court has previously recognized that allowing a court other 
than the one that entered the decree to interpret or modify it 
would create a “risk of inconsistent or conflicting obligations”. 
Local 93, 106 S. Ct. at 3076 n.13; accord Thaggard, 687 F.2d at 
68; O’Burn, 70 F.R.D. at 552; Dennison, 658 F,2d at 695; see 
also pp. 15-16, infra. The relief that the Marino petitioners 
seek illustrates this danger. The consent decree provides for 
additional minorities to be promoted in order to overcome the 
adverse impact of the examination, yet the relief that petitioners 
seek—the promotion of additional nonminorities—would nec­
essarily undo the decree’s remedy and recreate the exam­
ination’s adverse impact.

The Solicitor General recognizes those policies but argues 
that “the concern for correctness of judicial decision making is 
as important as the concern for consistency among judgments 
and, accordingly, some inconsistent or contradictory judgments 
must be accepted”. Gov’t Br. at 20. This is not, however, a 
case in which the decree amounts to “little more than a contract 
between parties, formalized by the signature of a judge”. 
Ashley v. City o f Jackson, 464 U.S. at 902 ( Rehnquist, J., 
dissenting from the denial of certiorari). The district court 
allowed interested parties—including three groups representing 
white employees whose interests were concrete—to be heard, 
considered their arguments and held that the decree was lawful. 
If a collateral challenge is allowed under such circumstances, 
there is no reason to believe that a second decision would be 
any more likely to be “correct” than the first.

reverse discrimination suit”. Howard v. McLucas, 782 F.2d 956, 960 
(11th Cir. 1986).

Similarly, although the Fifth Circuit has suggested that the 
Thaggard line of cases should be reexamined if under the facts of a 
particular case a party is denied its day in court, that court remains 
“firmly bound” to the Thaggard rule where an opportunity to be 
heard was available. Corley v. Jackson Police Dep’t, 755 F.2d 1207, 
1210 (5th Cir. 1985).



12

Second, collateral attacks on decrees where objectors had 
the right to intervene would permit relitigation of issues that 
already had been, or could have been, litigated. Judicial 
resources are an increasingly scarce commodity (see Schmieder 
v. Hall, 545 F.2d 768, 771 (2d Cir. 1976), cert, denied, 430 U.S. 
955 (1977)), and allowing collateral lawsuits by persons who 
could have intervened earlier unnecessarily wastes those pre­
cious resources. In this case, the district court considered and 
rejected petitioners’ arguments, and there is no reason why 
another court should have to consider those arguments again.

Third, allowing collateral attacks would undermine the 
authority of the federal courts to issue judgments. If collateral 
attacks were permitted, “courts could never enter a judgment in 
a lawsuit with the assurance that the judgment was a final and 
conclusive determination of the underlying dispute”. O’Burn, 
70 F.R.D. at 552; see also Thaggard, 687 F.2d at 69; Prate, 430 
F. Supp. at 1375. Indeed, because a consent decree is a court 
order ( Local 93, 106 S. Ct. at 3074), it stands to reason that 
allowing consent orders to be attacked would also subject final 
litigated orders and judgments to collateral attack.

Finally, and perhaps most importantly, permitting collat­
eral attacks would have the perverse effect of discouraging the 
settlement of meritorious Title VII claims. Prate, 430 F. Supp. 
at 1375; Dennison, 658 F.2d at 696; Thaggard, 687 F.2d at 69. 
This Court has previously recognized that when Congress 
passed Title VII, “ [cjooperation and voluntary compliance 
were selected as the preferred means for achieving” equal 
employment opportunity. Alexander v. Gardner-Denver Co., 
415 U.S. 36, 44 (1974); see also Local 93, 106 S. Ct. at 3072; 29 
C.F.R. § 1608.1(b) (1986) (EEOC Affirmative Action Guide­
lines). Settlement serves the policy of encouraging employers 
to end discriminatory employment practices as quickly as pos­
sible. See Title VII § 705(b), 42 U.S.C. § 2000e-5(b) (1982) 
(providing for the expedited consideration of Title VII suits); 
Culbreath, 630 F.2d at 22. In addition, because it is negotiated 
rather than imposed unilaterally by a court, a settlement that 
resolves the lawfulness of employment practices once and for



13

all dispels uncertainties and may be accepted by employees 
more readily. See Schwarzschild, Public Law by Private 
Bargain: Title VII Consent Decrees and the Fairness o f Nego­
tiated Institutional Reform, 1984 Duke L.J. 887, 899; see also 
Hispanic Society v. New York City Police Dep’t, 40 Empl. Prac. 
Dec. (CCH) H 36,385 (S.D.N.Y.), aff’d, 806 F.2d 1147 (2d 
Cir. 1986), cert, granted, 107 S. Ct. 2177, amended, 107 S. Ct. 
3182 (1987).

Permitting all Title VII decrees to be collaterally attacked, 
whatever the circumstances, would vitiate that powerful legal 
tool. If the benefits that the parties obtain by settling—relief 
(for plaintiffs) and repose (for defendants)—can be collat­
erally challenged, parties would have little to gain by settling 
and giving up their claims or defenses.

The Solicitor General argues that allowing collateral at­
tacks would not diminish the employer’s incentive to settle any 
more than does allowing nonminorities to intervene in the 
original action. See Gov’t Br. at 23. The Solicitor General goes 
so far as to say that the “parties’ incentive to settle would be 
increased, if at all, only if the Marino petitioners had no means 
of challenging any settlement”. Id. at 23 n. 13. That is simply 
not true. Intervenors have the right to challenge a proposed 
decree—by opposing the decree at the settlement hearing and 
by appealing an adverse decision. The disincentive to settle if 
collateral attacks were allowed would come not from the fact 
that a proposed consent decree could be challenged, but rather 
from the fact that even if the decree were challenged, approved 
and affirmed on appeal, the employer might still have to defend 
any number of collateral lawsuits.



14

B. Settled Principles of Comity Between Federal 
Courts Bar Attempts to Appeal the Ruling of One 
District Court to Another Through Collateral Pro­
ceedings.

Collateral attacks, if allowed, necessarily call upon a court 
to reconsider an earlier judicial decision in an earlier case, 
perhaps by a different judge or even by a different court. That 
violates firmly settled rules of comity.

Although in this case the collateral challenge was consid­
ered by the same judge who approved the consent decree, that 
was purely fortuitous.5 There are many consent decrees that 
cover an employer’s practices nationwide. See, e.g., United 
States v. Allegheny-Ludlum Indus., 517 F.2d 826 (5th Cir. 
1975) ( consent decree covering nationwide practices in the 
steel industry), cert, denied, 425 U.S. 944 (1976); EEOC v. 
American Tel. & Tel., 556 F.2d 167 (3d Cir. 1977) (consent 
decree covering nationwide employment practices of the Bell 
companies), cert, denied, 438 U.S. 915 ( 1978). If the Solicitor 
General’s argument were to prevail, those consent decrees 
would be exposed to collateral attacks in every district court in 
the country. Indeed, collateral attacks on consent decrees are 
often brought in a different court than the one that entered the 
original order. See, e.g., Gregory-Portland Indep. School Dist. v. 
Texas Educ. Agency, 576 F.2d 81 (5th Cir. 1978), cert, denied, 
440 U.S. 947 (1979); Goins, 657 F.2d 62; Black and White 
Children of the Pontiac School Sys. v. School Dist., 464 F.2d 
1030 (6th Cir. 1972) (per curiam) (“Black and White School 
Children”)-, Feller v. Brock, 802 F.2d 722, 727-28, (4th Cir. 
1986); Common Cause v. Judicial Ethics Comm., 473 F. Supp. 
1251, 1253-54 (D.D.C. 1979); Construction Indus. Combined

5 Because three of the five boroughs of New York City are in the 
Eastern District of New York (28 U.S.C. § 112(c)), the Marino 
action could have been brought in another district. In addition, even 
though the Marino action was brought in the same court in which the 
Hispanic Society action was pending, the Marino action was trans­
ferred to Judge Carter only by virtue of local practice. See p. 4, supra; 
accord Gov’t Br. at 15 n.6. The same result would not necessarily 
obtain in other districts with other local practices.



15

Comm. v. International Union of Operating Eng’rs, Local 513. 
67 F.R.D, 664, 665-66 (E.D. Mo. 1975).6

A collateral attack on the decree of a court of competent 
jurisdiction in another forum has long been held improper 
because a court of equity retains continuing jurisdiction over the 
enforcement of its orders ( System Fed’n v. Wright, 364 U.S. 
642, 646-48 (1961 ); United States v. Swift & Co., 286 U.S. 106, 
114-15 ( 1932)) and the power to modify its decree based on 
changed circumstances of law or fact (see Swift, 286 U.S. at 
114-15). See Deposit Bank v. Frankfort, 191 U.S. 499, 510-15 
( 1903); Delaware Valley Citizens’ Council for Clean Air v. 
Pennsylvania, 755 F.2d 38, 43-44 (3d Cir.), cert, denied, 106 S. 
Ct. 67 ( 1985). The specter of different district courts wrestling 
over the fate of school children in a busing controversy, 
reviewing a school district’s efforts to desegregate or issuing 
orders concerning an employer’s promotion policies are pre­
cisely the types of dilemmas that comity is designed to avoid. 
See, e.g., Goins, 657 F.2d 62; Gregory-Portland, 516 F.2d 81; 
Black and White School Children, 464 F.2d 1030. Courts today 
deal with such problems daily under existing rules. To adopt 
the Solicitor General’s proposal would open a Pandora’s Box 
with unknown, but certainly undesirable, consequences.

The rule that collateral attacks generally should not be 
permitted is the tool used by courts to enforce comity. By 
avoiding relitigation of issues already examined in another 6

6 For example, in Gregory-Portland, the United States brought a 
school desegregation action in the Eastern District of Texas against 
the Texas Education Agency (“TEA”). The district court enjoined 
the TEA from funding or accrediting school districts that dis­
criminated on the basis of race. See United States v. Texas, 330 F. 
Supp. 235 (E.D. Tex.), aff’d and modified, 447 F.2d 441 (5th Cir. 
1971), cert, denied, 404 U.S. 1016 ( 1972). Gregory-Portland sued 
the TEA in the Southern District of Texas alleging that the threatened 
termination violated its due process. The Southern District agreed, 
and permanently enjoined the TEA from suspending Gregory Port­
land’s accreditation or funding. The Fifth Circuit reversed on the 
ground that comity required that any challenge to the Eastern 
District’s order be brought in that court, which had continuing 
jurisdiction. See Gregory-Portland, 576 F.2d at 83.



16

forum, the rule avoids waste of judicial time and effort. It 
serves litigants as well, by channelling their disputes to a court 
that is aware of the background of the litigation and has 
already exercised its powers in the matter. Finally, it engenders 
respect for the orders of federal courts.

Comity applies regardless of whether the plaintiff in the 
collateral suit was a party or privy to the initial action. See 
Treadway v. Academy of Motion Picture Arts & Sciences, 783 
F.2d 1418, 1421-22 (9th Cir. 1986); Goins, 657 F.2d at 64; 
Gregory-Portland, 576 F.2d at 82-83; Feller, 802 F.2d at 728. 
For example, in Feller, the NAACP brought an action in the 
District of Columbia challenging the Department of Labor’s 
(“DOL”) administration of the Temporary Foreign Worker 
Program. Under that program, the DOL could certify that an 
employer could hire alien workers, provided that the employer 
paid them the Adverse Effect Rate (“AER”). The NAACP 
alleged that the DOL had certified employers who paid aliens 
less than the AER. The district court enjoined the DOL from 
certifying noncomplying employers, and, pursuant to that or­
der, the DOL refused to certify two West Virginia apple 
growers. Those two growers sued the DOL in West Virginia 
and obtained an order that they be certified, and the DOL 
complied. The NAACP then sought to hold the DOL in 
contempt in the District of Columbia action. The Fourth 
Circuit reversed the West Virginia court’s injunction, noting 
that comity “has been expanded . . .  to cases in which the 
plaintiff in the second action was neither a party nor the 
successor-in-interest of a party in the first action”. Id. at 728; 
see also Goins, 657 F.2d at 64; Exxon Corp. v. Department of 
Energy, 594 F. Supp. 84, 89-90 (D. Del. 1984).

The Solicitor General’s response to these threats to comity 
is twofold. First, the Solicitor General argues that a collateral 
attack could be transferred to the district court in which the 
decree was entered (see 28 U.S.C. § 1404(a)) and transferred 
to the same judge (see Fed. R. Civ. P. 42). See Gov’t Br. at 14. 
But requiring the plaintiff to litigate in the consent decree forum 
imposes no greater burden than requiring him or her to



17

intervene in the consent decree action in the first place. Second, 
the Solicitor General argues that “principles of stare decisis and 
comity will inform the second court”. Gov’t Br. at 20 ( empha­
sis added). Saying that the second court will be “informed” 
begs the question. The second court is either bound by the first 
decision or free to reconsider it. To the extent that it must 
follow the earlier decision, the collateral attack is a hollow 
procedural device. To the extent that it can reconsider the 
initial order de novo, comity is meaningless.

C. Petitioners’ Decision to Bypass Intervention in 
the HISPANIC S o c ie ty  Action Precludes Them from 
Relitigating the Merits of the Consent Decree.

Petitioners are decidedly not persons who have been 
denied their day in court. They were heard at the settlement 
hearing. They were invited to intervene. They knew, or should 
have known, that they would be barred from challenging the 
decree unless they intervened. The Second Circuit had pre­
viously ruled that consent decrees cannot be collaterally at­
tacked (see Prate v. Freedman, 573 F.2d 1294 (2d Cir. 1977), 
ajf’g mem., 430 F. Supp. 1373 (W.D.N.Y.)), and had consid­
ered its rule so clear that it awarded attorneys fees against 
plaintiffs seeking to attack a consent decree collaterally. See 
Prate v. Freedman, 583 F.2d at 46.

Had the Marino petitioners sought to intervene in the 
Hispanic Society action, their application would have been 
granted under the law of the Second Circuit. See Kirkland v. 
Department of Correctional Servs., 711 F.2d 1117, 1128 (2d 
Cir. 1983) (nonminority employees may intervene after a 
consent decree is proposed because their interest in a promotion 
“entitles [them] to be heard on the reasonableness and legal­
ity” of the decree), cert, denied, 465 U.S. 1005 ( 1984).7 The

7 See also LaRouche v. FBI, 677 F.2d 256, 257 (2d Cir. 1982)
(allowing intervention two years after entry of a decree where 
intervenor had been unaware of the litigation and delay would not 
prejudice the other parties); United States v. Hooker Chem. & Plastic 
Corp., 540 F. Supp. 1067, 1082 (W.D.N.Y. 1982) (approving



18

Solicitor General’s reliance on United States v. Yonkers Bd. of 
Educ., 801 F.2d 593 (2d Cir. 1986), for the proposition that 
intervention would have been denied (see Gov’t Br. at 24-25) is 
nothing short of remarkable. Yonkers involved an attempt by 
homeowners to intervene in a desegregation action to oppose 
the construction of public housing near their homes several 
years after they were on notice that their neighborhoods were 
proposed sites for the construction, after months of inquiry and 
after six days of extensive hearings. Id. at 595. The Second 
Circuit affirmed the denial of intervention because the home- 
owners’ decision not to participate in those proceedings ren­
dered their motion to intervene untimely. The court suggested 
that intervention would have been granted if the homeowners 
had sought to enter the action after the filing of the proposed 
decree but prior to the hearing. Id. at 596. To argue that 
because intervention was denied as untimely in one case, it 
would have been denied in this case—before the decree was 
signed and before the settlement hearing was held—is simply to 
misstate the law of the Second Circuit.

To be sure, the time when a party raises a claim has always 
been important. In considering collateral attacks on state court 
criminal judgments through habeas corpus, courts have been 
particularly unsympathetic to defendants who save their con­
stitutional claims until after their state court trials. See 
Wainwright v. Sykes, 433 U.S. 72 (1977). In Wainwright, this 
Court established the “cause and prejudice” rule, stating that a 
more lenient rule “may encourage ‘sandbagging’ on the part of 
defense lawyers, who may take their chances on a verdict of not 
guilty in a state trial court with the intent to raise their 
constitutional claims in a federal habeas court if their initial 
gamble does not pay off”. Id. at 89 ( Rehnquist, J.).

Petitioners’ refusal to intervene was not, as the Solicitor 
General would have it, a free choice. This Court has long

intervention after the proposed decree was filed); Howard, 782 F.2d 
956 (same); Stallworth v. Monsanto Co., 558 F.2d 257, 266-68 (5th 
Cir. 1977) (allowing intervention one month after entry of the 
consent decree).



19

recognized that parties with actual notice of a lawsuit affecting 
their interests may be bound by its results if they do not 
intervene to defend those interests. For example, in Penn- 
Central Merger and N&W Inclusion Cases, 389 U.S. 486 
(1968), the Borough of Moosic brought an action in the Middle 
District of Pennsylvania seeking to enjoin the Penn-Central 
merger, one of several such actions filed in various district 
courts nationwide. All of the actions were stayed pending 
disposition of the common issues by a three judge panel in the 
Southern District of New York. The Southern District app­
roved the merger, and this Court affirmed that judgment. This 
Court then held that the Borough of Moosic was precluded 
from relitigating the merits of the approval of the merger in its 
Pennsylvania action because it “had an adequate opportunity to 
join in the [New York] litigation”. Id. at 505. The Court 
stated:

“All parties with standing to challenge the Commission’s 
action might have joined in the New York proceedings. In 
these circumstances, it necessarily follows that the decision 
of the New York court. . . precludes further judicial review 
or adjudication of the issues upon which it passes.” Id. at 
505-06 (footnote omitted).

Similarly, in Provident Tradesmens Bank & Trust Co. v. 
Patterson, 390 U.S. 102 ( 1968), the Court rejected the argu­
ment that indispensable parties have a “substantive right” to be 
joined or to have the suit dismissed in their absence. Id. at 107. 
The Court suggested that in a subsequent suit, the allegedly 
indispensable party “should be bound by the previous decision 
because, although technically a nonparty, he had purposely 
bypassed an adequate opportunity to intervene.” Id. at 114.

The doctrine established in Penn-Central and Provident 
Tradesmens Bank has been widely employed by the lower 
federal courts.8 In Bolden v. Pennsylvania State Police, 578

8 See, e.g., Safir v. Dole, 718 F.2d 475, 482-83 (D.C. Cir. 1983)
(Scalia, J.) (nonparties are collaterally estopped by litigation of issue 
in earlier suit where, despite the court’s invitations, they “sedulously 
abstained” from intervening), cert, denied, 467 U.S. 1206 ( 1984);



20

F.2d 912 (3d Cir. 1978), for example, the district court was 
confronted by white police officers who engaged in a strategic 
ploy almost identical to that employed by petitioners here. 
There, the Fraternal Order of Police (“FOP”) participated, but 
did not intervene, in an action against the police department 
that led to the entry of an affirmative action consent decree. 
Four years after entry of the decree, the FOP moved to 
intervene for the purpose of seeking to modify the decree. The 
Third Circuit denied that request:

“The FOP was seeking on behalf of its members the 
best of all possible worlds. Its counsel . . . could supplant, 
or at least supplement, the Assistant Attorney General 
assigned to the case in negotiating the most favorable 
consent decree, while it preserved the option of subse­

National Wildlife Fed’n v. Gorsuch, 744 F.2d 963, 967 (3d Cir. 1984)
(where nonparties’ attempted intervention was untimely and their 
interests adequately represented, they were precluded from reliti­
gating an environmental consent decree); Grann v. City of Madison, 
738 F.2d 786, 794-96 (7th Cir.) (failure to intervene in state agency 
gender discrimination hearing barred male detectives’ subsequent 
attack on the relief accorded), cert, denied, 469 U.S. 918 (1984); 
Adams v. Morton, 581 F.2d 1314 (9th Cir. 1978) (failure to intervene 
coupled with participation in the original suit is enough to bind a 
nonparty), cert, denied, 440 U.S. 958 ( 1979); Cummins Diesel 
Michigan, Inc. v. The Falcon, 305 F.2d 721 (7th Cir. 1962) (failure to 
intervene in admiralty actions binds a nonparty); Marine Power & 
Equip. Co. v. United States, 594 F. Supp. 997, 1003 (D.D.C. 1984) 
(“a party that fails to intervene in an action directly challenging its 
interests may be barred from bringing a later collateral attack”; 
citations omitted); Treasure Salvors, Inc. v. Unidentified Wreck, 459 
F. Supp. 507, 514 (S.D. Fla. 1978) (“A party who purposely fails to 
intervene is bound under the law of this Circuit”), aff’d on other 
grounds sub nom. Florida Dep’t of State v. Treasure Salvors, Inc., 621 
F.2d 1340 (5th Cir. 1980), aff’d in part and rev’d in part on other 
grounds, 458 U.S. 670 (1982); accord F. James & G. Hazard, Civil 
Procedure § 11.31 at 599 (2d ed. 1977) (“The process of settling legal 
rights through adjudication is simply another form o f . . . investment, 
whose value a bystander with knowledge should not be allowed to 
destroy by his silence and inaction”). See also Note, Preclusion of 
Absent Disputants to Compel Intervention, 79 Colum. L. Rev. 1551 
( 1979).



21

quently mounting collateral attacks upon the same 
decree.” Id. at 916.9

The Third Circuit held that the FOP was a de facto party to the 
first case and bound by its results. Id. at 918.

Similarly, in Gorsuch, 744 F.2d 963, the district court 
dismissed the National Wildlife Federation’s suit against offi­
cers of the Environmental Protection Agency and various state 
defendants as a collateral attack on a consent decree entered in 
a related case in which the Federation had objected to the 
decree but had not timely intervened. The Third Circuit 
affirmed the dismissal, stating:

“Clearly, plaintiffs were not outsiders unaware of 
litigation in progress that would ultimately affect their 
interests. In a deliberate choice of litigation strategy, they 
chose to stand on the sidelines, wary but not active, deeply 
interested, but of their own volition not participants. 
Although plaintiffs may not have had their day in court as 
litigants, they had the opportunity and for reasons of their 
own adopted a different approach. Plaintiffs cannot, at this 
stage, assert persuasively that the interest of finality should 
not prevail.” Id. at 971-72.

So too here.

D. Rule 19 Does Not Require Parties to a Consent 
Decree to Join All Persons Who May Be Affected by 
the Decree.

Petitioners and the Solicitor General argue that Rule 19 of 
the Federal Rules of Civil Procedure required the parties to the 
consent decree to join petitioners in the Hispanic Society action.

9 In rejecting the collateral attack, the Third Circuit quoted the 
FOP attorney’s statement to a gathering of its members that showed 
that the FOP, just like many nonparties, chose not to be a party for 
strategic reasons: “I’m not going to let the court let me in—if he wants 
me in now in that capacity, I’m not going to let him bring me in. I’m 
going to withdraw so that you are not parties to it.” Bolden, 578 F.2d 
at 916.



22

See Gov’t Br. at 17-19; Petitioners’ Br. at 54.10 Their position is 
that the burden should always rest on the parties to a proposed 
decree to join the nonminorities as parties rather than on the 
nonminorities to seek to intervene. See Gov’t Br. at 18. We 
disagree.

Nothing in Rule 19 requires parties to join everyone who 
may be affected by the outcome of litigation. It may not even 
be possible to identify all of the nonparties who might be 
affected by a decree. For example, a consent decree in a school 
desegregation case will undoubtedly affect the lives of thou­
sands of school children who are yet unborn. Similarly, a Title 
VII consent decree might affect unknown future applicants for 
entry level positions or promotions. Rule 19 does not demand 
the joinder of all these inchoate interests in the original action. 
See Brumfield v. Dodd, 425 F. Supp. 528, 530 (E.D. La. 1976); 
American Civil Liberties Union v. Board of Public Works, 357 
F. Supp. 877, 884 (D. Md. 1972); cfi Fed. R. Civ. P. 19(c) 
(requiring that a pleading state only the names of persons 
“known to the pleader” who may be affected by the outcome of 
litigation).

Even if all interested nonminorities could be identified, 
requiring them to be joined is simply not feasible. Because 
there may be hundreds or thousands of potentially interested 
nonminorities, they certainly could not all be joined individ­
ually. Although in theory a class could be joined, it may not be 
possible to find an adequate class representative who is willing 
to bear the burden and expense of litigation, particularly if 
neither the representative nor class members want to be bound. 
This case illustrates the difficulty of joining an involuntary class 
as a party. The municipal defendants expressly invited the 
Marino petitioners to intervene, yet they deliberately avoided 
doing so. They never even argued to the district court, which

10 It is ironic that the Solicitor General would take such a 
position. The Department of Justice is a party to many consent 
decrees, and we are not aware of any decree in which it joined all 
third parties who might be affected by the decree. See pp. 9-10, supra.



23

could have joined them at the settlement hearing, that they 
should have been joined. Nor did they press their joinder 
argument to the court of appeals. That they do so here offers 
vivid evidence of the “sandbag” potential that is inherent in 
collateral attacks.

Moreover, petitioners clearly were not necessary parties to 
this litigation at the outset. No liability was asserted against 
them and they had no legally cognizable expectancy of promo­
tion. Cf Board of Regents v. Roth, 408 U.S. 564, 577 ( 1972) 
( for due process guarantees to attach to a benefit, “a person 
must clearly have more than an abstract need or desire for it. 
He must have more than a unilateral expectation of it. He must 
have a legitimate claim of entitlement to it.” ). Even outright 
abrogation of the promotional examination would not “as a 
practical matter [have] impair[ed] or impedefd]” any legally- 
protected interest of petitioners, because they did not pass the 
examination. See Fed. R. Civ. P. 19(a)(1).11

Finally, the Solicitor General’s joinder argument is not 
logically limited to consent decrees. If nonminorities’ interest in 
the race-conscious relief in a proposed consent decree is 
sufficient to require them to be joined, they would also have to 
be joined in every Title VII action that could lead to a race­
conscious order. Indeed, other minorities would have to be

11 In Phillips v. Carborundum Co., 361 F. Supp. 1016 
(W.D.N.Y. 1973), the employer defendant moved pursuant to Rule 
19 to join local and national unions in an equal pay action brought by 
female employees. The district court rejected the employer’s con­
tention that the unions were indispensable parties because:

“an order to pay women at an increased rate will not in any way 
affect its obligation to the male employees. . . . Perhaps an order 
of the court directing the payment of additional wages to certain 
women employees will be upsetting to some of the male workers 
and precipitate additional collective bargaining problems. Nev­
ertheless, these reasons are not sufficient to require an order 
pursuant to Rule 19 adding the National Union and the Local 
Union as parties.” Id. at 1020 (citation omitted).



24

joined in any case resulting in the hiring of a particular plaintiff, 
because they would be as foreclosed as white applicants.

E. Persons Who Had Notice of a Proposed Decree 
and the Opportunity to Be Heard Have No Due Process 
Right to Bring a Collateral Action.

We are puzzled by the Solicitor General’s argument that 
petitioners were caught in a “pincers movement” and were 
denied “all possible recourse against consent decrees to which 
they object”, thus “depriving them of their rights under the Due 
Process Clause”. See Gov’t Br. at 25. The Solicitor General is 
wrong. There was no “pincers movement”. There might have 
been if petitioners were denied the opportunity to intervene, but 
they were not. They deliberately chose not to intervene. As in 
Kremer, where the Court considered due process rights under 
New York law, the “fact that [petitioner] failed to avail 
himself of the full procedures provided by state law does not 
constitute a sign of their inadequacy”. 456 U.S. at 485 ( citation 
omitted). This was a “pincers movement” with only one 
pincer.

Furthermore, this Court has held that the “elementary and 
fundamental requirement of due process in any proceeding 
which is to be accorded finality is notice, reasonably calculated, 
under all the circumstances, to apprise interested parties of the 
pendency of the action and to afford them an opportunity to 
present their objections.” Mullane v. Central Hanover Bank & 
Trust Co., 339 U.S. 306, 314-15 (1950); see also Matthews v. 
Eldridge, 424 U.S. 319, 333 (1976) (the “fundamental require­
ment of due process is the opportunity to be heard ‘at a 
meaningful time and in a meaningful manner’ ”, quoting 
Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

Petitioners had that here. They were given notice and the 
opportunity to present their objections. Notice of the proposed 
Hispanic Society consent decree was posted in every police 
precinct in New York City more than two months before the 
settlement hearing and four months before the consent decree



25

was entered, inviting interested persons to participate in the 
settlement hearing. J.A. 84. Petitioners had actual notice and 
were heard in opposition to the consent decree. That they could 
not appeal the entry of the decree was their own doing because 
they chose not to intervene; it is not evidence of a procedural 
error.

II. IN ANY EVENT, PETITIONERS’ INTERESTS IN 
THE HISPANIC SOCIETY  ACTION WERE ADE­
QUATELY REPRESENTED BY THE PARTIES WHO 
WERE PRESENT.

This Court has long recognized that nominal nonparties to 
an action may be bound by its result if their interests are 
adequately represented by parties of record. See Hansberry v. 
Lee, 311 U.S. 32, 42-43 (1940); Chicago Rock Island & Pac. 
Ry. v. Schendel, 270 U.S. 611, 618-19 ( 1926); Heckman v. 
United States, 224 U.S. 413, 444-45 (1912); Kerrison v. 
Stewart, 93 U.S. 155, 160-63 (1876). The party defendants in 
the Hispanic Society action represented the interests of petition­
ers sufficiently to bind them to the result.

The lower courts have applied this rule to bar the relitiga­
tion of claims and issues that have been settled between parties 
with similar incentives to litigate.12 For example, in Telephone

12 See Western Coal Traffic League v. ICC, 735 F.2d 1408, 1411 
(D.C. Cir. 1984) (trade association adequately represented power 
company’s interest in earlier challenge to ICC rate-setting rules); 
United States v. Geophysical Corp., 732 F.2d 693, 697 (9th Cir. 1984) 
(a “person technically not a party to the prior action may be bound by 
the prior decision if his interests are so similar to a party’s that that 
party was his ‘virtual representative’ in the prior action”); Nash 
County Bd. of Educ. v. Biltmore Co., 640 F.2d 484, 493-97 (4th Cir.) 
(school board’s federal antitrust suit was barred where the state 
attorney general represented interests of county school board in state 
antitrust proceeding which ended in consent decree), cert, denied, 454 
U.S. 878 ( 1981 ); Expert Elec., Inc. v. Levine, 554 F.2d 1227, 1235-36 
(2d Cir.) (trade association represented its members in state court 
action, thereby precluding them from raising similar claims in federal 
court), cert, denied, 434 U.S. 903 (1977); General Foods v. Depart­
ment of Public Health, 648 F.2d 784 ( 1st Cir. 1981) (plaintiff who



26

Workers Union, Local 827 v. New Jersey Bell Tel., 584 F.2d 31 
(3d Cir. 1978), the Third Circuit held that a union’s participa­
tion in a prior affirmative action consent decree precluded a 
later action challenging the appointment of a man to a position 
previously dominated by women. The Court said, “a labor 
organization is an adequate representative of the interests of the 
majority of its members; . . .  its participation satisfies the due 
process requirements of Hansberry v. Lee”. Id. at 33, quoting 
Bolden, 578 F.2d at 918.

Similarly, in Bell v. Board of Educ., 683 F.2d 963 (6th Cir. 
1982), an individual brought a school desegregation action that 
mirrored the complaint in an earlier action brought by the 
NAACP in which the defendant school board had prevailed. 
The court found that the NAACP’s interests in the prior suit 
and the interests of the current plaintiffs were the same, and 
that the NAACP had adequately represented those interests. 
Id. at 966. The court affirmed the dismissal of the second action 
and added:

“We note that were we to apply a contrary principle 
rejecting collateral estoppel in school desegregation cases, 
we would open up for relitigation all school desegregation 
judgments in de facto school cases. A plaintiff who 
disagrees with a prior final determination of liability—for 
example in Columbus or Dayton—would be entitled to 
relitigate the finding of liability. Rights and duties in 
desegregation cases previously litigated and established 
would never become final. They would always be subject 
to collateral attack. Desegregation judgments, like tickets 
to the theater, would be good for today’s show only.” Id. at 
966.

declined to participate in a lawsuit by two trade associations challeng­
ing a state regulation could not subsequently challenge that same 
regulation in a later lawsuit); accord Aerojet-General Corp. v. Askew, 
511 F.2d 710, 719-20 (5th Cir.), cert, denied, 423 U.S. 908 (1975); 
Southwest Airlines Co. v. Texas Int’l Airlines, 546 F.2d 84, 94-102 
(5th Cir.), cert, denied, 434 U.S. 832 ( 1977).



27

Title VII actions should be no different when nonminor­
ities’ interests are adequately represented. Nonminorities 
should not be encouraged to splinter their challenges to a 
consent decree into innumerable separate actions. Moreover, if 
this Court were to hold that the interests of absent non­
minorities can be adequately represented by those who partici­
pate in the settlement hearing, the difficult problem of persons 
with inchoate interests would be resolved; if their interests are 
adequately represented, they cannot subsequently challenge the 
consent decree.

This is such a case. There were three defendant- 
intervenors—the SBA, the SEA and the Schneider Intervenors. 
All three groups had interests in the litigation that were more 
concrete than petitioners’ interests. The Schneider Intervenors 
challenged the proposed decree, and the district court consid­
ered those objections. See Hispanic Society, 40 Empl. Prac. 
Dec. at 43,655. Petitioners’ interests were well represented, and 
even after the Schneider Intervenors decided not to appeal, 
petitioners could have intervened at that point. See United 
Airlines v. McDonald, 432 U.S. 385, 396 ( 1977). They did not.



28

CONCLUSION
For the foregoing reasons, the Lawyers’ Committee for 

Civil Rights Under Law as amicus curiae respectfully requests 
this Court to affirm the decisions below.

August 22, 1987
Respectfully submitted,

Conrad K. Harper 
Stuart J. Land 

Co-Chairmen 
N orman R edlich 

Trustee
W illiam L. Robinson 
Judith A. W inston 
R ichard T. Seymour 
Stephen L. Spitz

Lawyers’ Committee for 
C ivil R ights Under Law 

1400 Eye Street, N.W. 
(Suite 400)
Washington, D.C. 20005 
(202) 371-1212

Paul C. Saunders 
Counsel of Record

Thomas D. Barr 
Robert D. Joffe 
Robert F. Mullen 
Alden L. Atkins 
Mark A. Sirota 
James E. Fleming

Cravath, Swaine & Moore* 
One Chase Manhattan Plaza 
New York, New York 10005 
(212) 422-3000

Attorneys for the Lawyers’ 
Committee for Civil Rights Under 
Law as Amicus Curiae

* Andrew G. McBride, a 1987 law school graduate in the 
Cravath, Swaine & Moore summer program, assisted in the prepara­
tion of this brief.



L T H t ,  i V a w  y u k i \  i  u v m o ,  v v .&

U.S. Said to Back Affirmative Action Challenges
By E. R. SHIPP

The Justice Department will not 
challenge 51 affirmative action plans 
around the nation, as it had hoped, but 
will give its tacit approval to unions 
and individuals who challenge volun­
tary plans that “ invoke racial prefer­
ences that trammel or infringe unnec­
essarily on the rights of third parties,’’ 
William Bradford Reynolds, the Assist­
ant Attorney General for Civil Rights, 
said yesterday.

Mr. Reynolds and two other lawyers 
who appeared on a panel at the Amer­
ican Bar Association’s annual meeting, 
also said they expected more chal­
lenges to such plans in light of recent 
Supreme Court rulings that voluntary 
consent decrees were not binding on 
anyone who was not a party to them, in­
cluding unions or disgruntled employ­
ees.

But the fourth member of the panel, 
Barry H. Goldstein of the NAACP 
Legal Defense and Educational Fund, 
Inc., disagreed with their interpreta­
tion of the Supreme Court decisions.

And later in the day, after his own ap­
pearance on another panel, Julius J. 
Chambers, the fund’s executive direc­
tor, said the Supreme Court had not 
“opened the doors to further challenges 
to affirmative action.”

“The Court has made it clear that af­
firmative action plans are permissi­
ble,” he said. “But, of course, there are 
limits.”

Last year the Justice Department 
notified officials in 51 municipal or 
state jurisdictions of its view that af­
firmative action programs giving 
women and members of racial mi­
nority groups preferences in hiring and 
promotions should be modified to re­
move numerical goals. Later it filed 
motions in two of the municipalities, 
Indianapolis and Chicago, seeking 
modifications in consent decrees it had 
previously accepted.

But those plans to seek changes in the 
two cities were brought to a halt after 
the Supreme Court rejected the Justice 
Department’s legal arguments in a 
case involving the Cleveland Fire De­
partment. In that case, decided July 2,

the Court held that consent decrees 
based on voluntary agreements be­
tween employers and certain workers 
could be much broader than those en­
tered by a judge after a case has been 
litigated. The Justice Department had 
argued that both types of consent de­
crees should be limited in scope.

As a result of the ruling in the Cleve­
land case, the Justice Department last 
week withdrew motions it had filed in 
Indianapolis and in Chicago and 
dropped plans for action in the other 49 
jurisdictions.

“ It’s clear after the Supreme Court 
decisions that to undertake a modifica­
tion is really not necessary,” he said. 
“A consent decree doesn’t bind a whole 
lot of other individuals who aren’t par­
ties to the decree and if it does indeed 
occur that the practices pursuant to the 
decree infringe upon the rights of indi­
vidual third parties, they can litigate in 
the courts. The courts have said they 
will have every opportunity to be 
heard.”

Such lawsuits could accomplish what 
the Justice Department sought through 
the modifications of the consent de­
crees involving public employees.

Mr. Reynolds said that the third par­
ties — individuals or unions — would 
have to initiate challenges to such 
agreements but he held open the possi­
bility that the Justice Department 
would join in the challenges.

He cited a Birmingham, Ala. case as 
a likely example of how these cases 
would arise in the future. White fire­
fighters there challenged an affirma­
tive action plan that resulted in the 
promotions of some black firefighters 
over the whites. The Justice Depart­
ment has joined the white firefighters 
in the case.

Two others on the panel, Michael 
Gottesman, a lawyer who often repre­
sents unions, and N. Thompson 
Powers, who frequently represents 
management, also said they expected 
new challenges to affirmative action 
consent decrees.

Mr. Gottesman said the Court was 
telling employers they could accept 
whatever they wanted in a consent 
agreement. But, he said, it was cau­
tioning them not to think “that getting 
a  court to sign it constitutes any kind of 
umbrella. It doesn’t. The mere fact 
that you’ve entered into this order does 
not mean that you can’t be sued.”

But Mr. Goldstein, of the NAACP de­
fense fund, said he did not view consent 
decrees as being less important or 
more difficult to obtain since the rul­
ings.

“ I think we are going to see more of 
what we have in the past,” he said, add­
ing: “On liability, the unions have held 
back, let the companies litigate the 
cases and then raised objections to the 
settlement. I think there will be more 
settlements with companies, that 
provisions such as affirmative action 
will be conditioned upon future litiga­
tion with the unions. And plaintiffs’ 
lawyers like myself will just have to 
take on the unions if they don’t want to 
agree to a settlement.”

Appendix A