*1 et al. v. WILKS MARTIN et al. 12, 1989* June January 1989 Decided Argued
No. 87-1614. County, 87-1639, Board No. Personnel *Together with Jefferson 87-1668, Wilks Arrington al. v. al., et Alabama, and No. Wilks et al. v. et the same court. al., also certiorari et *2 White, Court, in which opinion J., Rehnquist, delivered C. Stevens, J., dis- filed a Kennedy, JJ., joined. Scalia,
O’Connor, and JJ., Blackmun, Marshall, and Brennan, in which opinion, senting p. 769. post, joined, petitioners in argued for the cause P. Alexander James peti- briefs him on the With 87-1668.
Nos. 87-1639 Spotswood, Richard K. Robert 87-1668 in No. tioners K. Baker. Pennington, James R. Walston, Michael H. Huckaby, filed a brief Jr., Young C. III and James M. Frank *3 argued the D. Robert 87-1639. petitioners in No. for Joffe him briefs With petitioners in No. 87-1614. for cause Saunders, Mullen, Paul C. F. Barr, Robert D. Thomas were Sey- T. Robinson, Richard L. Atkins, William L. Alden Reeves. Spitz, W. Stephen and Susan L. mour, re argued the cause Fitzpatrick, Jr., Raymond P. Courtney him on brief With spondents et al. Wilks argued the Merrill Deputy General Solicitor Mason, Jr. H. Solicitor were brief theOn States. for the United cause Dep Reynolds, Attorney General Fried, Assistant General Attorney Gen Deputy Ayer, Assistant uty Solicitor General Dimsey.† J. Dennis Lazerwitz, and Clegg, R. Michael eral Ala of the State filed for were † Briefs reversal urging curiae of amici Massachusetts, of Shannon, Attorney General M. James al. bama et Peter General, S. Schacter and Jane Attorney Daniel, Deputy Alice of Attorney General General, Siegelman, Don Attorneys Sacks, Assistant Arkansas, deVan John of Clark, Attorney General Alabama, John Steven Lieberman, Attorney California, I. Joseph of General Attorney Kamp, Cooke, of Counsel Corporation Connecticut, D. Frederick of General Florida, of Buttenvorth, Attorney General Columbia, A. Robert of District Jones, Attorney Georgia, Jim of Boivers, Attorney General J. Michael Indiana, of Pearson, Attorney General Idaho, Linley E. of General Attorney Iowa, Stephan, T. Robert of Miller, Attorney General J. Thomas Kentucky, of Coivan, Attorney General Kansas, J. Frederic of General Ciaran, Louisiana, Joseph J. of Guste, Jr., Attorney General J. William III, Attorney Humphrey H. Hubert Maryland, Jr., Attorney Genral opinion delivered the Chief Rehnquist Justice Court. group
A firefighters of white city sued the Birmingham, (City), Alabama and the County Jefferson Personnel Board (Board) alleging being were promotions denied qualified favor of less firefighters. black They claimed that and the making Board promotion were decisions on the basis of race in reliance on certain consent decrees, and these impermissible decisions constituted racial dis- crimination violation of the Constitution and federal stat- utes. The District Court held that firefighters the white precluded challenging employment decisions taken pursuant to the though decrees, even firefighters these had not been proceedings in which the decrees were General of Minnesota, William L. Webster, Attorney General Missouri, Mike Greely, Attorney General Montana, Robert M. Spire, Attorney General of Nebraska, Brian McKay, Attorney General of Nevada, Stephen Merrill, E. Attorney General of New Hampshire, Cary Edwards, Attor- ney General of New Jersey, Abrams, Robert Attorney General of New York, Anthony Celebrezze, J. Jr., Attorney Ohio, General of Robert H. Henry, Attorney General Oklahoma, O’Neil, James E. Attorney Gen- eral of Island, Rhode T. Medlock, Travis Attorney General of South Caro- lina, Mattox, Jim Attorney General Texas, Jeffrey Amestoy, Attorney Vermont, General of Mary Sue Terry, Attorney General of Virginia-, God- *4 frey Castro, R. de Attorney General of the Virgin Islands, Charlie Brown, Attorney General of Virginia, West Donald J. Hanaway, Attorney Gen- Wisconsin, eral of and Joseph Meyer, B. Attorney General of Wyoming; for the American Civil Liberties Union by et al. Steven R. Shapiro, John A. Powell, Michael Wahoske, J. Mark B. Rotenberg, and Leslie J. Anderson; Equal for the Employment Advisory Council Robert E. Williams and Douglas McDowell; S. and for the National League of Cities et al. Benna Solomon, Ruth Bloch, Beate and Zachary D. Fasman. Briefs of amici curiae urging affirmance were filed for the International Association of Fire Fighters, AFL-CIO, by Thomas A. Woodley and Mi- chael Wolly; S. and for the Pacific Legal Foundation Ronald A. Zum- brun and Anthony T. Caso. N. Powers, Thompson Ronald Cooper, S. Barry L. Goldstein, Julius Chambers, LeVonne and Ronald L. Ellis filed a brief for the NAACP Legal Defense and Fund, Educational Inc., et al. as amici curiae. general holding rule We think this contravenes entered. deprived legal rights pro- person his cannot that a party. ceeding he is not a to which entered in which the consent decrees were
The Ensley began of the National Asso- when the Branch People and seven the Advancement of Colored ciation for complaints separate class-action individuals filed black They alleged City against had that both and the Board. hiring promotion prac- racially discriminatory engaged and jobs public VII of in violation of Title in various service tices §2000e seq., Rights et and C. Act of U. S. the Civil issues, but trial on some law. After bench other federal judgment, de- entered into two consent before City and the and black individuals one between the crees, proposed These decrees and the Board. between them other including long-term scheme, an extensive remedial set forth hiring goals fire- of blacks as annual for the and interim promotion provided goals fighters. also for The decrees department. within the fire of blacks approv- provisionally entered an order District Court directing publication
ing of notice of and the decrees hearings. App. upcoming Notice of the 694-696. fairness general hearings, nature of the de- with a reference newspapers. published At that hear- in two local crees, (BFA) ap- Birmingham Firefighters ing, Association objections After the peared curiae. filed as amicus and approval BFA hearing, decrees, final but before on the to intervene its members also moved and two of adversely rights. ground their would affect that the decrees untimely ap- the motions as Court denied The District County, proved the decrees. United States Jefferson 1981). (ND firefighters, white Ala. Seven FEP Cases complaint against the BFA, then filed a members of the all seeking injunctive relief enforce- the Board *5 argued that the decrees The seven decrees. ment of the operate illegally would to against discriminate them; the District Court App. denied relief. to Pet. for 37a. Cert.
Both the denial of intervention injunctive and the denial of relief appeal. were affirmed on United States v. Jefferson (CA11 County, 1983). 720F. 2d The District Court had its refusing abused discretion in let BFA inter thought vene, part Eleventh Circuit, because the firefighters “institut[e] could independent Title VII suit, asserting specific rights.” violations of their Id., at 1518. And, petitioners for the same reason, adequately had not potential irreparable shown the operation harm from the necessary injunctive of the decrees to obtain Id., relief. at 1520. group
A new firefighters, of white respondents, the Wilks brought then City suit and the Board in District They alleged Court. too that, because they of their race, being promotions denied qualified favor of less blacks in violation of federal law. City The Board and the admitted making employment race-conscious argued decisions, but that the decisions were they unassailable because were made pursuant to the consent group decrees. A of black individ- petitioners, uals, the Martin were allowed to intervene capacities their individual to defend the decrees.
The defendants moved to dismiss the reverse discrimina- impermissible tion cases as collateral attacks on the consent decrees. The District Court ruling denied the motions, provide the decrees would a defense to claims of discrimina- employment tion for decisions “mandated” the decrees, leaving principal issue for challenged trial whether the promotions required were indeed App. the decrees. 237-239, 250. After trial granted the District Court the mo- App. tion to dismiss. to Pet. for Cert. 67a. The court con- cluded that “if in required fact the [make promo- blacks] tions of consent decree, then would not be guilty [illegal] racial discrimination” and that the defend- “established] ants promotions had of the black indi-
761 by consent required terms the fact were . . . victuals Id., 28a. at decree.” that, held It reversed. appeal, Circuit Eleventh
On parties respondents] “[bjecause neither were [the Wilks . . . independent their decrees, . . . privies consent nor precluded.” re In not are discrimination of unlawful claims Litiga- Employment Birmingham Discrimination Reverse (1987). explicitly re- The court 1498 1492, F. 2d tion, 833 es- “impermissible attack” collateral jected doctrine ato Appeals immunize to poused Courts other by nonparties charges of discrimination decree consent Although Ibid. pursuant the decree. taken actions for voluntary policy “strong public favor recognized a it acknowledged this panel that plans,” the action affirmative par- requiring third policy yield “must interest either interests bargains their which submit to ties to case remanded The court Ibid. ignored sacrificed.” op- suggesting claims, the discrimination trial for govern- judging decrees the consent for erative law plans. Id., at 1497.1 voluntary ing affirmative-action (1988), now 1204 granted certiorari, 487 U. S. We “[i]t agree that judgment. All Circuit’s the Eleventh affirm juris- Anglo-American application in general principle is a personam in judgment in by not bound prudence is that one party toor designated a not he in which process.” party service a made been has not he which (1940). g., See, e. 40 32, Hansberry S. Lee, U. court for the opinion with the Anderson, “agreefd] dissenting, 1 Judge prior parties to were not respondents] Wilks plaintiffs [the these plain decree, the instant and that in the consent resulted litigation which remand free on and should be decree by the consent are bound tiffs validity against and test its prospectively decree challenge consent Dis Reverse Birmingham re precedent.” Court Supreme recent 2d, distin 1503. He 833 F. at Litigation, Employment crimination for and claims prospective relief however, claims between guished, City’s barred, good-faith opinion, in his being backpay, latter Id., 1502. the decrees. reliance on Hosiery Parklane Co. v. Shore, 322, U. S. n. 7 (1979); Blonder-Tongue University Laboratories, Inc. v. (1971); Foundation, 402 U. S. 328-329 Zenith Radio Corp. (1969). Research, v. Hazeltine Inc., part “deep-rooted This rule is everyone of our historic tradition that day should have Wright, his own in court.” 18 C. *7 Cooper, A. & E. Miller, Federal Practice and Procedure (1981)(hereafter p. Wright). judgment §4449, 417 18 A or among parties decree among to a lawsuit resolves issues as rights strangers them, but it does not concludethe of to those proceedings.2 argue
Petitioners respondents timely that, because failed to proceedings, intervene the initial challenge their current to actions taken under the consent decree an im- constitutes permissible They argue “collateral respond- attack.” ents were underlying might aware that the suit affect them, they pass up and if opportunity chose to an to intervene, permitted should not be litigate to later issues a new position action. appeal has sufficient to have com- approval great majority manded' the of the Federal Appeals,3 agree Courts of but contrary we with the view ex- 2 recognized We have exception when, general rule in certain circumstances, person, limited a although party, not a has his interests ad equately represented someone with the same interests party. who is a Lee, (“class” Hansberry 32, (1940) See v. 311 S. 41-42 U. “represent or suits); ative” (same); Fed. Rule Civ. Proc. 23 States, Montana v. United (1979) (control 154-155 litigation behalf one of parties in litigation). Additionally, special where a remedial scheme expressly exists foreclosing successive by nonlitigants, as for example in bankruptcy probate, legal or may proceedings pre terminate existing rights if the scheme is process. otherwise with consistent due Bildisco, See NLRB v. (1984) Bildisco & 529-530, 465 U. S. n. 10 (“[Pjroof presented of claim must be Bankruptcy Court ... or be lost”); Tulsa Services, Collection Pope, v. Inc. U. S. Professional (1988) (nonclaim terminating statute against unsubmitted claims the es tate). exceptions, Neither of however, these applies in cases. these 3For a sampling of cases from the applying “impermissible Circuits collateral rule or see, attack” equivalent, its functional g., e. v. Striff Appeals Circuit the Eleventh pressed the Court cases. these Na- in Chase Brandéis begin words of Justice with
We
(1934):
U. S.
Norwalk, 291
Bank
tional
absolutely
any person
en-
impose upon
not
law does
“The
voluntary intervention
hearing
the burden
to a
titled
duly
stranger.
.
. . Unless
he is a
to which
suit
a
person not
legal proceeding, a
appear in a
summoned
judgment
recovered
privy
assured
rest
rights.”
legal
at 441.
Id.
his
affect
will not
therein
adoption
before
written
words
these
While
incor-
Rules
we think the
Procedure,
of Civil
Rules
Federal
seeking
bind-
party
principle; a
porate
same
he
person
intervene;
obligate
ing
cannot
on another
(judgment
supra,
Hazeltine,
joined. See
must be
aas
named
it was
because
vacated
Hazeltine
corporation
parent
though
party
served, even
*8
against it
clearly
claim
of
knew the
it
one
jurisdiction).
appearance
special
to contest
made a
and had
set forth
permissive
background
intervention
Against
of
the
govern-
24,
Rule
cast
Bank, the drafters
National
in Chase
Civ.
Fed. Rule
permissive terms. See
ing intervention, in
timely appli-
(intervention
(“Upon
24(a)
right)
of
Proc.
intervene”);
Rule
permitted
Fed.
anyone
to
shall be
cation
1144,
Ortiz,
(CA6
F.
1988);
806
2d
Marino
v.
Mason,
240,
245
2dF.
849
Court,
301
(CA2
divided
1986),
by
equally
an
aff’d
1146-1147
(CA5 1982),
denied
Jackson,
66,
cert.
68-69
(1988);
687 F. 2d
Thaggard
v.
(REHNQUIST,
Jackson,
(1983)
J..
S. 900
464 U.
Ashley City
nom.
v.
sub
of
Dept., 679
F.
Fire
Memphis
Brennan,
v.
J., dissenting); Stotts
by
joined
v.
Firefighters
nom.
grounds sub
(CA6 1982),
541,
other
rev’d on
558
2d
&
Dept. Water
Angeles
v. Los
(1984);
Dennison
Stotts,
S. 561
of
U.
467
Corp.,
1981);
657
Steel
(CA9
v. Bethlehem
Goins
Power,
696
F. 2d
658
(1982);
Society Hill
denied,
(CA4 1981),
perso>i’s ability protect interest or persons leave al- double, ready parties subject to a incurring substantial risk multiple, or obligations otherwise inconsistent reason the claimed interest. If person joined, has not been so person the court shall order that the party. person made a If join plaintiff so, should as a but refuses to do person may defendant, or, ease, be made a proper in a involuntary plaintiff. joined If party objects joinder party venue and of that would render the venue of improper, party the action shall be dis- added.) (Emphasis missed from the action.” 19(b) provides: Rule person “If a . . . party, cannot be made a the court shall determine whether *9 in equity good and conscience proceed the action should among parties the it, dismissed, before or should be person the being regarded absent thus as indispensable. first, by The factors to be considered the court include: to what judgment extent a person’s might prejudi- rendered the absence person second, cial which, already parties; or those the by extent to protective provisions relief, judgment, by the shaping of or other measures, prejudice avoided; third, can be lessened or judg- whether a fourth, ment rendered in person’s adequate; absence will be whether knowledge and a lawsuit of party, rather than aas Joinder potential by which method intervene, is the opportunity to an and jurisdiction the court of subjected to the parties are parties lawsuit ato The by or decree.6 a bound and anyone the nature than else better presumably know expense sought at action, whose in the and scope relief therefore, to granted. sense, It makes might be relief such parties bringing additional burden of place them on poten- placing on than step rather indicated, is such a where they acquire duty when intervene to additional tial knowledge “impermissi- linchpin The the lawsuit. preclusive attribution attack” doctrine—the collateral ble quite inconsist- therefore to intervene —is to a failure effect Rule 24. 19 and Rule ent with in Penn-Central argue decisions that our Petitioners (1968), U. S. Cases, 389
Merger Inclusion N & W Patterson, v.Co. & Trust Bank Tradesmens Provident Penn- opposite (1968),suggest result. an U. S. statutory special framework place in a took Central huge reorganization rail- of a Congress allow to enacted Interstate Primary jurisdiction in the system. way in a very review restricted Commission, with Commerce proceedings Review three-judge Court. statutory District dismissed action is remedy if the adequate have plaintiff will nonjoinder.” not been hand, respondents have one on the argues, 6 Thedissent suffering practical only rather, they but, are decree “bound” Post, the other On 770-772. consent decree. effects adverse assertion as an respondents’ suit hand, characterizes the dissent consent de attack collateral rights, but independent own their Post, at grounds. very limited said, only proceed on which, can it is crees being ra are alleged that have in their suit Respondents 783-787. Title VII: violation employer in their discriminated cially pur made being are employment decisions disputed fact that either or it VII claims Title respondents’ a defense decree is to a consent suant practices which employment challenges If it a defense is not. why respond to see VII, very difficult it is Title violate would otherwise by the decree. being “bound” are not ents *10 were channeled to the District Court for the Southern Dis- trict of proceedings New York, and in other District Courts stayed. upheld The District Court the decision of the Interstate Commerce merger Commissionin both the and the proceedings, parties inclusion proceeding ap- to that pealed to Pennsylvania this Court. litigants Certain had sued the District Court for the Pennsyl- Middle District of vania to set aside the Commission’sorder, and this action was stayed pending the decision in the District Court for the Southern District of borough New York. We held that the Pennsylvania of Moosic, litigants, one of the could chal- lenge approval merger Commission’s and inclusion Pennsylvania in the pointing Court, District out the unusual nationwide character saying “[i]n the action and these cir- cumstances, it permit parties would be seeking senseless to challenge merger and the bring inclusion orders to nu- many merous suits in different district courts.” 389 S.,U. at 505, n. 4. holding
We do not think that this in Penn Central, as based upon extraordinary it was proceedings nature of the chal- lenging merger giant railroads and not even mention- ing Rule guide 19 or Rule 24, affords a interpretation relating joinder of the rules ordinary intervention civil actions a district court. rely
Petitioners also on our decision Provident Bank, swpra, authority they espouse. for the view which In that case shortly we parts discussed Rule after of it had been substantially expressly open revised, but we question left preclusive might whether effect be attributed to a failure to intervene. 390 S.,U. at 114-115.
Petitioners contend that a different result should be join reached because the need to affected will be bur- ultimately densome and discouraging rights' litigation. to civil Potential adverse claimants be numerous and difficult identify; joined, possibility are not for inconsistent *11 con- needlessly resources will be exists. Judicial judgments of the same question. sumed relitigation aas these wholly persuaded by arguments Even we were them would a rewrit- require matter of of policy, acceptance But relevant Rules. than an of the interpretation rather ing lead to that their would acceptance we are not persuaded It cases like these. handling more method of satisfactory in- are a to duty must be remembered that the alternatives hand, and some form based on on the one knowledge, tervene No on the other. Rules provide, of as the joinder, presently success- might that an employer one can contend seriously employ- VII claim one of by group defend a Title fully an earlier that its actions were required ees on the ground if the another, it by in a brought against decree entered suit of the notice or adequate knowledge later did not have group earlier suit. those who foresee identifying
The difficulties petitioners reme- a decree broad granting could be affected adversely arise from but undoubtedly present, dial relief are be- choice any and not because sought nature of relief provi- Rule 19’s intervention and mandatory joinder. tween to accommo- interested are parties designed sions for joining from a decree arise complexities may date the sort of in various We doubt ways. numerous affecting people awkward. rule would be less intervention mandatory the courts who seek the aid of mentioned, plaintiffs As who the employer or alter existing employment policies, able to bear decrees, are best conflicting be might subject af- adversely those who would be designating the burden of have a these will parties generally fected if plaintiffs prevail; than em- relief scope likely better understanding Petition- be affected. who are not named but might ployees for, difficulty the need ers’ alternative does not eliminate interests, should who, because of their of, identifying persons in a that responsibility included lawsuit. It shifts merely able shoulders. to less system joinder think
Nor do we called for likely produce relitigation Rules is more of issues than the converse rule. The breadth aof lawsuit and concomitant re- partially shaped lief be at least through in advance Rule 19to avoid litigation. needless clashes with future And even regime mandatory under intervention, who did adequate knowledge not have relitigate the suit would is- questions sues. Additional about adequacy and timeli- knowledge ness of inevitably crop up. would We think that system joinder presently contemplated by the Rules many best serves the litigated interests involved the run of including cases, present cases like the ones. *12 urge
Petitioners
congressional
also
policy
that the
favoring
voluntary
employment
settlement of
discrimination claims,
referred
to
cases such as Carson v. American Brands,
(1981),
Inc.,
“[P]arties who litigation choose to through resolve set- may dispose tlement not party claims of a third party’s . . . agreement. without that approval A court’s of a consent parties between decree some of there- dispose fore cannot of the valid nonconsenting claims of Firefighters intervenors.” v. Cleveland, 478 U. S. (1986). argument Insofar as the may bottomed on the idea that it be persons among easier to disparate settle claims group a of affected they are joinder all before court, bids fair to accomplish result, regime that as as mandatory well a of intervention. of decision foregoing affirm the reasons we
For re- That court Appeals Circuit. for Eleventh Court discrimination reverse trial of the the case manded 2d, at F. Discrimination, 833 Birmingham Reverse claims. language point in the District to Petitioners 1500-1502. suggests which findings law fact and conclusions Court’s agree We prevail the merits. respondents will pro- Appeals, however, Court view of the with may affected been have Court ceedings in the District were respondents’ the merits claims on view mistaken they the consent with inconsistent the extent to barred decree.
Affirmed. Brennan, Jus- whom Justice with Stevens, Justice dissenting. join, Blackmun Justice Marshall, tice per- between is vast difference there a of law matter As a persons who parties are actual who sons may practical mat- as merely interest the kind have Persons a case. impaired the outcome ter be ap- participate trial and to right in a category have first they depending judgment; on whether peal an adverse impaired. may legal rights be enhanced lose, their win or right intervene in category have in the latter Persons joined timely *13 fashion,1 or in' a action against they sidelines, they the if remain But will.2 their 1 24(a) part: provides in Procedure Civil Rule of Federal in an to intervene permitted anyone be shall application timely “Upon prop- relating to the (2) interest an applicant claims when the ... action: applicant is so the subject the action and the of is which erty or transaction impair matter practical may as a disposition of the action situated interest, appli- the unless ability protect that applicant’s impede the or existing parties.” represented adequately interest cant’s 2 19(a) part: provides in Procedure Civil Rule of Federal joinder will process whose subject to service who is person “A the action shall subject matter over jurisdiction deprive the court (2) an interest person claims . action if . . party in joined as a be disposition situated that is so the action and subject relating 770
may practical be harmed though as a legal matter even their rights are unaffected.3 disadvantages One of the of sideline- sitting bystander is that the right appeal has no from a judgment no matter may how harmful it be. quite rightly these cases Court concludes that the firefighters brought
white who the second series of Title VII deprived cases legal could not be rights of their in the first series of cases because had neither intervened nor been joined parties. Firefighters See v. Cleveland, 478 U. S. (1986); 501, 529-530 Hosiery Parklane Co. v. Shore, 439 (1979). U. 322, 327, S. 7n. obviously The consent decrees deprive any could not rights, them of contractual such as seniority, cf. R.W. Grace & Co. v. Rubber Workers, 461 (1983), U. S. 757 pay, or accrued cf. vacation Massachusetts p. v. Morash, ante, legal rights, 107, or of other such right as the employer to have comply their with federal stat utes Firefighters like Title VII, cf. supra, v. Cleveland, 529.4 There is no why reason, however, the consent de- person’s (i) action in absence practical aas impair matter impede person’s ability protect that interest . . . 3 SeeProvident Tradesmens Bank & Trust Co. v. Patterson 390 U. S. 102, (1968). Rehnquist As Chief Justice has observed: “Suppose, for example, that the private Government sues a corporation for alleged violations of the antitrust laws and then enters a consent decree. Surely, the existence of that preclude decree does not future suit an corporation other alleging that the company’s conduct, defendant even decree, authorized constitutes an antitrust violation. nonparty independent has right to bring private his own antitrust action for treble damages injunctive or for relief. See P. Turner, Areeda & D. Antitrust (1978). ¶ p. Law Similarly, if an action alleging unconstitutional prison decree, conditions results in a consent prisoner subsequently by prison harmed precluded conditions is not bringing suit on plea mere that the conditions are in accordance with the consent decree. compliance might Such relevant to good-faith defense of immunity, see Pet. for Williams, Cert. in Bennett v. 82-1704, O. T. No. it but would not suffice to block the altogether.” Ashley suit Jackson, (1983) 902-903 (opinion certiorari). dissenting from denial of In suggesting compliance with a decree *14 consent might be to relevant a good-faith defense of immunity, this passage recognizes that neither due produce changes might in conditions at the white crees not employment practical firefighters’ place matter, that, of as a may opportunities employ- a effect on their have serious they promotion though even not bound the de- ment or are any legal a sense. The fact that one of the effects of crees job opportunities nonparties does decree is curtail the of to nonparties deprived legal have been not mean that the rights they standing appeal have from that decree or that to becoming parties. without right appeal judg a final have no to
Persons who elapsed appeal to has or the time ment—-either because may parties to the never never became because case— collaterally judgment a on certain narrow theless attack jurisdiction subject grounds. If had no over the court product corruption, judgment is the matter, or if the collusion, mistake, or under limited circum duress, fraud, pro may appropriate in an collateral it be set aside stances (Second) §§69-72 Judgments ceeding. Restatement See (1982); 147 F. York, Bank New 2d Griffith (1945). (CA2) J.), (Clark, This denied, cert. original only parties applies action, but also rule collaterally judgm attack third allows interested however, cases, civil and criminal ents.5 In both recognition of a judicial process of Civil Procedure foreclose nor the Rules nonparty. a interests of may practical have a effect on the judgment that (3d Hazard, p. § ed. 12.15, Civil Procedure 5 See F. James & G. Hazard). 1985) (hereinafter 1874, this at least Court has James & Since may collaterally judgment orig recognized party attack that a third brought In a case through fraud or collusion. judgment inal was obtained bankruptcy property allegedly trans assignee seeking to recover debtors, bankrupt’s the Court wrote: ferred fraud of the court, said, may impeached by “Judgments it is sometimes collusion, proposition or but the as stated is strangers to them for fraud who, limitations, only strangers judg- if the subject as it is those to certain effect, regard prejudiced would be some given ment is full credit permitted up Defenses of pre-existing right who are to set such defense. up by strangers. Hence the rule that whenever the kind be set such parties, procured through the fraud of either or decree is both, per- purpose defrauding for the some third the collusion of *15 772 may support
grounds a that be invoked to collateral attack may than be asserted much more limited those that are appeal.6 person Thus, a who can foresee error on direct likely practical impact to have a his that a lawsuit is on inter may pay heavy price if he to sit ests a elects on the sidelines intervening taking legal rights instead of the risk his impaired. bewill dispute fact these cases there is no about the that re-
spondents
parties
are
decrees.
It
not
consent
follows
by
they
a
bound
those de-
as matter of course that
are not
deprive
judgments
not,
not, and did
crees.7 Those
could
son,
attempted by
person may escape
injury thus
such third
from the
show-
ing,
in a
proceeding,
even
collateral
the fraud or collusion which the
(1874)
Post,
398,
judgment was obtained.” Michaels v.
21 Wall.
426-427
omitted).
(footnote
(1920);
175,
Fargo
Taylor,
See also Wells
v.
& Co.
254
S.
184
1 A. Free
U.
(5th
1925).
man,
318,
§
Judgments
p.
Similarly,
634
strangers
ed.
to a de
challenge
cree are sometimes
showing
allowed to
the decree
Id.,
jurisdiction.
court was without
p.
633. But cf. Johnson v. Muel
(1951)
law, child,
berger,
(noting
775 including employment, promotion ing in areas of several and department. District After a full trial the fire and VII had violated Title that the defendants found Court App. job applicants biased. to screen a test used promotion that focused on trial After a second 553. a deci- practices had rendered the District Court before —but parties negotiated with decrees, one two consent sion—the App. to with the Board. the other defendants and (Board decree). decree), (City The 202a 122a Pet. for Cert. party The District Court decrees. is a to both States United proposed approved and directed provisionally decrees persons in- parties provide all interested “to notice that the provisions De- general forming of the Consent them App. objections.” 695. right file . . . and of their crees con- Court Approximately later, the District two months employ- group hearing, of black at which a fairness ducted group inadequate objected and a as the decrees ees Birmingham part firefighters represented in white — (BFA) opposed race-conscious Firefighters Association — sets both Court overruled Id., 727. The District relief. at August 1981. objections the decrees and entered 1981). (ND Ala. FEP Cases approving decrees, the District consent
In its decision suggestion contention or there is no noted “that first Court Id., or collusive.” fraudulent are that the settlements why explained satisfied it was court then 1835. quotas goals in the de forth set affirmative-action permissible” upheld the limits “well within
crees (1979), and other Weber, Steelworkers pointed de It out Cases, at 1836. 28 FEP cases. hiring promotion preclude of whites *18 or the “do not crees period temporary time,” ibid., and of even for males promote the whites to City’s blacks and commitment the temporary was the same rate position fire lieutenant availability qualified candi- subject the both to was and dates and “to the caveat that the decree is not to be inter- preted requiring hiring promotion person as or of a who is qualified person demonstrably qualified or of a who is less according job-related procedure,” to a id., selection at 1837. provided ample It further found record “more than City eventually reason” to conclude that the would be held against high-level positions liable for discrimination blacks at police departments.12 in the fire and Id., at 1838. Based on decree, In approving expressed the District Court confidence that the United States and the black firefighters brought good suit in faith evidentiary and that there a strong complaints. was their basis for It observed: objectors
“The treat this case as one in which discrimination on the basis true, of race or sex has not been only partially established. That is at least positions police as it relates to departments. and fire This court at trial first found—and the agreed Fifth applying Circuit blacks —that jobs police for as firefighters officers and against by were discriminated by tests used the Personnel Board to applicants. screen and rank The evi- presented established, dence at the second trial at the .01 level of statisti- significance, cal adversely that blacks were by by affected the exam used applicants Personnel Board to screen and rank position police for the sergeant. governmental employers Since such as the Birmingham have been selecting limited state law to candidates among those Board, certified hardly surprised one proc- would to find that the upon ess as a whole has had an seeking employment adverse effect blacks officers, Birmingham police police as sergeants, firefighters regardless — of whether or not there actual part bias on the of selecting officials City. A consequence natural against discrimination blacks at entry-level positions police departments in the and fire would be to limit opportunities promotion their higher departments. levels “Employment Birmingham’s police statistics for departments and fire 21, 1981, July certainly support lend to the claim made in this against City that, notwithstanding this court’s directions 1977with — respect entry-level certifications the Personnel Board for the police firefighters positions despite officer and City’s adoption of a ‘fair hiring plans, ordinance’ and of affirmative action past the effects of dis- persist. crimination According blacks figures, to those 79 of the black, police black, police officers sergeants are 3 of the 131 are police captains none of the 40 lieutenants and are black. In the fire de- black, partment, firefighters 42 of the 453 are and none of the 140 lieu-
777 understanding wrong con- committed, the court its remedy in the was embodied consent decrees cluded that “reasonably of the commensurate with the nature and extent Bradley, Ibid. Milliken v. discrimination.” Cf. indicated (1974). rejected 717, 744 The District then 418 S. Court U. objections, pointing specific would out that the decrees other rights impinge or their contractual the unions noting Finally, FEP at 1839. after Cases, members. fully firefighters’ objections the white that it had considered intervene as un- settlement, it their motion to denied timely. Ibid. entry decrees, of the consent months after the
Several City firefighters, as that five black certified Board qualified eight whites, to fill vacancies were six well as position App. group A fire- 81. of white of lieutenant. See City challeng- fighters and Board then filed suit promo- “certifying making policy ing candidates and their protection the basis of race under assumed tions on App. The Pet. for 113a. Cert. consent settlements.” complaint alleged, alternative, consent de- in the that the illegal void, were not defendants crees were plain- implementing properly The Id., them. at 113a-114a. temporary restraining for a order filed motions tiffs preliminary injunction. hearing, evidentiary
After an plaintiffs’ attack on found that collateral District Court “without merit” and that four decrees was the consent qualified promotion with for in accordance officers black Accordingly, App. it de- 81-83. the decrees. the terms of time motions, 85-86, and, the first id., at nied the history, fire a black its had lieutenant in its department. Cases,
tenants, FEP captains, and chiefs are black.” battalion 1837-1838. presented at the trial is described discrimination The evidence of brief, post-trial which is re- 100-page, greater in the United States’ detail Appendix. App.
printed in the 594-693. Joint See appeal plaintiffs’ order consolidated appeal previously with the that had been taken from the *20 denying order the motion to intervene filed the earlier liti gation. Appeals The Court of affirmed both orders. See (CA11 County, v. United States F. 2d Jefferson 1983). appeal pending, September While that respondents separate against peti the Wilks filed a action complaint alleged petitioners tioners. The Wilks that were violating any challenge VII, Title but it not contain did to the validity App. of the consent decrees. 130. After various preliminary proceedings, the District Court consolidated along cases, these with four other reverse discrimination ac against brought petitioners, caption tions In under the re: Birmingham Litigation. Id., Reverse Discrimination at litigation, addition, 218. over the course of the the court parties allowed further to intervene.13 February 18, 1985, On the District ruled Court on the City’s partial summary judgment motion for and issued an opinion among things, explained that, other its understand- ing of the relevance of the consent the decrees to issues litigation. raised in the reverse discrimination Id., at 277. summarizing proceedings up entry After the that led expressly “recognized the decrees, consent Court District might that the consent decrees not bar all claims of ‘reverse plaintiffs] [the parties discrimination’ since had not been prior posi- Id., suits.”14 The 279. court then took a 13Among allowed firefighters those to intervene were seven black who decrees; were the consent sought decrees and who to defend the States, which aligned United reversed course itself plaintiffs; with firefighters and additional white pressing individual re verse discrimination claims. 14During an hearing, earlier District Court counsel: informed “I do believe that the Court Appeals per prohibition said is se there no attack, attack, an by person indirect event rights whose during implementation be affected implementation or claims extent summary judgment decree. To the motions to dismiss or take said, no, think position, Appeals that I the Court of that not the law Id., this at 237. Circuit.” decrees that the relevance of the consent respect with tion the parties. advocated by any differed valid, if decrees, even the consent contended plaintiffs R. Grace action, cf. W. defense to their constitute did in the (1983), and, Workers, Rubber & Co. the promotion did not authorize that the decrees alternative, white applicants of higher scoring ahead black applicants App. promotions. race-conscious thus did not justify hand, contended on the other City, 281-282. The were from challenge immunized promotions of the decrees. the terms required permitted either posi- the intermediate Court took 282. The District Id., at of—the made because required tion that promotions —and sum- City’s However, it denied were justified.15 decrees *21 requir- issues it raised factual because motion mary judgment Id., at 288-289. a trial. ing trial lim- 5-day court conducted 1985, the
In December fire City’s in the concerning promotions issues ited to chal- trial, respondents At departments.16 engineering prod were a promotions race-conscious if the indicated that The court (i. e., the consent de pending court orders City’s uct of the adherence racially requisite the City acted with crees), not be said it could (“[T]he id., persuaded that the court at 280 discriminatory intent. See they if estab claims reverse discrimination . . defend these can. defendants requirements of the made because promotions were challenged lish that decree”). 14,1984), reprinted App. in 237. (May Tr. also the consent See aware of the Court conclusion, was well District Court reaching this might be available: such a defense suggestion that Appeals’ previous at only if the defendant become an issue would ‘“The consent decree mandated the con by saying that it was tempted justify its conduct defense, to deter judge would have the trial If this were decree. sent decree, and, mandated action was the defendant’s mine whether liability that so, relieve the defendant alone would whether that fact is, indeed, We question. . . . a difficult This otherwise attach. would raising wronged parties from not, however, potentially preclude should 280-281, App. n. perplexing.’” merely it is question because such 2d, County, 720 F. at 1518-1519. quoting United States Jefferson ease, granted the mo the District Court plaintiffs’ 16 Atthe close of the Rule pursuant to Federal against claims it of the Board to dismiss tion lenged validity decrees; the consent to meet that chal- lenge, petitioners introduced the records of the 1976trial, the hearing 1979trial, and the fairness conducted 1981. Re- spondents prove demonstrably also tried qualified firefighters than the black better who had been promoted ahead of them. At the conclusion of the trial, the partial judgment dismissing District Court entered a final portions plaintiffs’ complaints. judge explained ruling opinion sup- his an oral dictated from the bench, plemented by adoption, changes, with some of detailed findings prevailing parties. and conclusions drafted App. to Pet. 27a, See for Cert. 37a. judge legal posi- statement,
In his oral adhered to the expressed February ruling. tion he had in his He stated: expressed explicitly “The conclusions there either implicitly appropriate were that under circumstances, a appropriately valid consent decree limited can be the charge basis for a defense of discrimination, even situation which it is clear that the de- racially fendant to the did act in a conscious manner. February my expressed
“In that order, it was view as City Birmingham promotions then, that if the made positions captain lieutenant, of blacks to as fire fire engineer, and civil because the believed it was re- *22 quired by decree, to do so the consent if in and fact the City required Decree, do so the Consent then they guilty would not be discrimination, of racial either 41(b). that, of Civil Procedure The basis for the motion was the fact even decrees, regard plaintiffs without to the consent proved the had not Board, prima against facie case nothing which had done pro- more than City black, with employees, vide the the names of both white and who qualified promotion. were There was no evidence that the Board’s process, certification testing procedures, adversely or its affected whites. why I Appeals am at a loss to understand Court of did affirm not in favor of the Board.
781 1981, 1983 or the 14th Amend- Title Section under my given That remains conclusion the state ment. 77a. Id., I understand it.” at law as petitioners not had fact that found as a matter of He then qualified who promoted not officers who were black demonstrably qualified who were less than the whites rejected respondents’ promoted. contention thus He required simply City acted as claim that it could not that the of the consent decree:17 terms presented here, evidence as under the case, “In this proof placed on the be if the burden I that even find proof and that burden have carried defendants, promotions establishing individ- of the black required by the terms of the in fact in case were uals this Id., at 78a. decree.” consent adopted are less of law that he conclusions
The written
by unequivocally
began
opinion.
stat
He
than his oral
clear
City
He ex
ing:
Id., at 106a.
is lawful.”18
“The
Decree
the Eleventh
plained
case law of
“under all the relevant
proper
Supreme
remedial de
it
Court,
and
Circuit
prior, illegal dis
designed
the effects of
to overcome
vice,
City
Birmingham.”19
106a-
Id., at
crimination
17
pertinent part:
City
provides,
in
2
decree
Paragraph
promote a
to . . .
interpreted
requiring
“Nothing herein shall
person,
pref-
in
promote
qualified
a less
qualified ... or
person who is not
upon the re-
demonstrably
qualified
better
based
person who is
erence to a
App.
124a.
to Pet. for Cert.
procedure.”
job related selection
of a
sults
18
de
to the second consent
opinion does not refer
The District Court’s
end of
dismissed at the
the Board had been
the claims
cree because
16, supra.
See n.
plaintiffs’ case.
19
alia,
cited,
inter
our decision
proposition,
the court
support
this
(1979).
Weber,
recently reaffirmed
We
443 U. S.
in Steelworkers
v.
Agency,
Clara
Transportation
Santa
Johnson
in
v.
Weber decision
EEOC,
(1987).
Workers
Metal
Sheet
also
County,
See
S. 616
480 U.
id.,
J.,
(Powell,
concurring
(1986)
opinion);
at 483
(plurality
id.,
(O’Connor, J.,
concurring
at
concurring
judgment);
part
(all
id.,
(White,
J.,
dissenting)
re-
part);
dissenting
part
*23
107a.
In that
conclusion, however,
same
he did state that
“plaintiffs
collaterally
validity.”
cannot
the Decree’s
attack
particularly
Id.,
light
Yet,
at 106a.
when read in context—and
finding that
of the court’s
the decree was lawful under
Supreme
precedent
readily
and
Eleventh Circuit
Court
is—it
apparent
that,
extreme,
at
an
this was intended as
alter-
likely,
holding.
native
More
it
anwas
overstatement of the
scope
appellate
rule
is
that collateral review narrower
than
regardless
reading
review.
event,
of one’s
of this
absolutely
lone sentence, it is
that
clear
the court did not hold
respondents
by
that
were bound
the decree. Nowhere in
lengthy findings
the District Court’s
of fact and conclusionsof
single
suggesting
respondents
law is there a
word
by
bound
the consent decree or
court
intended to
though they
parties
treat them as
had been actual
to that
merely
persons
and not
interests,
whose
as a
practical
respondents,
matter, had been
Indeed,
affected.
Appeals,
majority opinion
the Court of
all fail to draw
any point
long history
attention
these cases’
at which the
judge
given
impression
any nonparty
have
legally
by the
bound
consent decree.20
affirming that courts are
with
vested
discretion to award race-conscious
relief).
posely bypassed
[a]
[2]
previous
Provident Tradesmens Bank & Trust Co. we
expressly
decision
adequate
because, although
did not decide
opportunity
whether
technically
to intervene.
a litigant might
a
Patterson,
nonparty,
”
See
Note,
“be bound
he had
390 U.
Preclu
pur
S.,
Disputants
Compel Intervention,
sion of Absent
Colum.
L. Rev. 1551
(1979) (arguing
intervention);
in favor of
mandatory
such
rule of
7 C.
Miller,
Wright,
Kane,
§
A.
M.
&
Federal Practice and Procedure
(2d
1986)
p.
(drawing
parallel
n. 33
ed.
mandatory
between the
inter
Merger
Penn-Central
N and & W
vention rule and this Court’s
decision
Cases,
(1968)).
Inclusion
Today,
783 II firefighters whether the white of Regardless it co-workers, relief black to their the decrees granting never collat- that could to assume wrong be quite would he has standing, If a litigant such a decree. attack erally for certain attack a collaterally can always or she v. United Klapprott e. g., See, defects. defined narrowly supra. cited n. (1949); 601 and cases States, (ND States, 584 F. 1406 v. United also Korematsu Supp. See coram nobis 1984) convic- vacating writ of (granting Cal. critical of contradic- concealment tion based on Government States, S. in Korematsu United U. evidence tory not required court is (1944)). hand, other a district On the court’s judg- in review of another to sit a case —or retry that some asserts interested nonparty time an every ment — was com- appeal raised on direct have been might error that of allowance a broad supra. nn. 6 and Such mitted. See of litigated integrity destroy review would collateral litiga- of vexatious to an abundance would lead judgments, between comity the interest would subvert tion, and no circumstance have offered Here, respondents courts.21 (“[A] seeking judgment ante, party a Ante, at 763 765. See also cree.” intervene; he must be person to obligate cannot that binding another did not hold re- Court I conclude that District joined”). Because decrees, this issue. I do not reach by the consent spondents were bound following poignant language relies on the leading commentator One explain significance Supreme Virginia Court to employed limiting collateral attacks: doctrine “ peace of soci- adopted in the interest has been ‘It one . . . which If, judg- security after the rendition of of titles. ety permanent and the period elapsed after the has competent jurisdiction, and by a
ment court error, may in another suit another court it irreversible for when becomes judgment, there would be in such irregularities or errors inquire into the judgment, though A rights. fixed established litigation and no no end to irreversible, adjudication longer be a final would no unreversed and point which a new litigants, starting rights but nugatory; useless and up; limitation would become spring acts of would every protection; find no judicial process would purchasers on the faith of might justify reopening the District Court’s settled judgment. implementation affecting of a consent decree the inter- nonparties,
ests of multitude
and the reliance on that de-
charge
hiring
to a
cree as defense
discrimination
promotion
legitimate
decisions, raise a
concern of collusion.
allegation,
No such
however, has been raised. Moreover,
compelling
there is
evidence
the decrees were
collu-
*25
approving
sive.
In its decision
the consent decrees over the
objection
firefighters,
BFA
and individual white
District Court observed that there had
“no
been
contention
suggestion”
that the decrees were fraudulent or collusive.
hearing
Cases,
28 FEP
at 1835. The record of the fairness
part
litigation,
finding
was made
of the record of this
and this
significantly,
was
contradicted. More
de-
consent
negotiated
crees were not
until after
1976
trial and the
finding
City
against
court’s
that the
had discriminated
black
jobs
police
firefighters,
candidates for
officers and
see
App. 553, and until after
trial,
the 1979
which
at
substantial
presented suggesting
City
evidence was
that the
dis-
also
promotion
criminated
black candidates for
in the fire
department,
supra.
n. 12,
see
Like the record of
hearing,
prior proceed-
fairness
the records
both
of these
uncertain;
right
established
would be
and
insecure
and a
”
Black,
upon every
245,
§
cloud would rest
title.’
1 H.
of Judgments
Law
(2d
Wilson,
1902),
pp.
Lancaster v.
quoting
365-366
ed.
27 Gratt.
(Va. 1876).
undermining
finality,
addition to
this
permitting
interest
collateral
occasion,
anomaly
will,
also
attacks
leads to the
that
courts
be re
quired
sit in
judgments
to
review of
equal
entered
other courts of
—or
Kadish, ante,
Cf. ASARCO Inc. v.
greater
authority.
622-623;
even
at
—
Feldman,
Appeals
District
Columbia
Court
(1983);
v.
ings the record in these cases. Given made Dis- history, collusion, and the lack of indication of ample finding reason than that “there is more trict Court’s [it] Birmingham be concerned that to . . . the against blacks liable for discrimination in time held would be departments,” police higher positions fire level at awere that the decrees FEP it is evident Cases, arm’s-length negotiations. genuine product of judgment is sub- consent can it be maintained Nor reopening the relief ject because further to legal doctrine with settled of line afforded was so out it only transparently a frivolous invalid or had it “was Birmingham, validity.”22 pretense Walker (1967) might (suggesting al- that a contemner 307, 315 underly- ground contempt challenge citation on lowed invalid”). “transparently con- To the ing court order trary, type in the consent relief ordered of race-conscious approach entirely this Court’s with consistent decrees predicate of racial dis- a sufficient action. Given affirmative Equal the Four- Clause of Protection crimination, neither the *26 Rights Act of the Civil nor Title VII Amendment23 teenth complaint in hearing, the first during the 1981 fairness argued It was 113a, in at least one of and App. to Pet. for Cert. litigation, in see filed this relief that race-conscious complaints, App. see subsequently filed absolutely past discrimination proven victims of persons who are not Amendment the Fourteenth Clause of by Equal Protection prohibited out, pointed I have 1964. As Rights Act of the Civil Title VII of and validity See of the decrees. challenge the Wilks complaint did App. 135-137. (1986) Education, 267, 286 Bd. Wygant v. Jackson 23 See of (“The J., concurring judgment) in (O’Connor, part and concurring in remedy that, employed, formulation whatever agreement inis Court sufficiently weighty state inter actor is a a state ing past discrimination ac carefully affirmative constructed use of a warrant the remedial est to Workers, S., at 479-481 Metal 478 U. also Sheet program”). See tion id., (Powell, J., concurring part in and con opinion); at 484-489 (plurality judgment). in curring
of 196424erects a bar to affirmative-action that ben- plans efit nonvictims and have some effect adverse on nonwrong- doers.25 As Justice O’Connor observed in Wygant v. distinguishing Firefighters Stotts, 24 In in the Court’s decision (1984), Workers, plurality S., in U. S. 561 Sheet Metal 478 U. at 474- 475, asserted: “However, this limitation on individual make-whole relief does not affect a authority court’s purpose order race-conscious affirmative action. The whole, of affirmative action is not to make identified victims but rather prior patterns employment to dismantle prevent discrimination and to provided discrimination in the future. Such relief is class as members; whole rather than to individual no individual is entitled to re- lief, and beneficiaries need not show that were themselves victims case, membership discrimination. In goal this neither the nor the Fund required petitioners individuals, particular order to indenture or train and required neither membership them to admit to individuals who were re- fused admission for peti- reasons unrelated to discrimination. We decline prohibit tioners’ invitation to read Stotts to a court ordering from kind might race-conscious affirmative relief that benefit nonvictims. This reading § language 706(g), would distort deprive and would important courts of an enforcing means of guarantee equal Title VII’s employment opportunity.” id., (Powell, J., See also concurring part in and concurring judg- in
ment) (“plain language
clearly support
of Title VII does not
a view that all
victims,”
benefiting
remedies must be limited to
“although
the matter
doubt,”
entirely
history
is not
free
legislative
of Title VII indi-
benefited); id.,
may
cates
nonvictims
at 490
(O’Connor, J.,
concur-
(“It
ring
part
dissenting
part)
majority
is now clear . . . that a
§
the Court
706(g)
believes
the last sentence of
does not
all circum-
prohibit a
employment
stances
court in a Title VII
discrimination case from
ordering
preferences
relief that
confer
racial
regard
some
with
to em-
ployment
discrimination”); id.,
in favor of nonvictims of
(White,
at 499
J.,
(“I
§
dissenting)
agree
706(g)
does not bar relief for
nonvictims
all
circumstances”).
25 my view,
plan
supported by
affirmative-action
need not be
predicate
employer provided
of racial
plan
discrimination
*27
public purpose,
a valid
adopted
procedures
“servefs]
that it was
with fair
breadth,
given
and
a narrow
that it
harm
transcends the
to [the nonminor
ity employees],
step
and that
that
goal
eliminating
it is
toward
ultimate
entirely
governmental decisionmaking
such irrelevant factors
aas
S.,
J.,
being’s
human
Wygant,
race.”
476 U.
at 320
(Stevens,
dissent-
(1986):
Education,
Bd.
Jackson
Hence, there is no basis for transparently collusive, fraudulent, ment as invalid. respondents Moreover, do not claim—nor there been has showing jurisdiction. In- mistake, duress, or lack of of— respondents argue stead, are left to that somewhat different appropriate the relief relief would have been more than actually granted. pro- Although was this sort of issue appeal, not, cannot, vide the basis for a direct it and should open relitigation judgment. serve to the door to of a settled cases, however, ing). plan undoubtedly preceded these discrimination; thus, adequate predicate racial I need not consider present-day purpose might justify a race- whether there is some promotion conscious scheme. 26Moreover, Court, opinion approving the consent de District its crees, “reasonably the remedies are commensurate with the found duration, discrimination,” nature and extent indicated are “limited in composition . expiring particular positions generally reflect the racial. . whole,” county oppor of the labor market as a allow for “substantial males,” tunity employment of whites and and “do not re advancement quire unqualified the selection of blacks . . . who are or who are demonstrably competitors.” qualified less than their 28 FEP Cases 1981). (ND Therefore, Ala. it cannot be that the court failed claimed to consider whether tailored fit the nature of the vio the remedies were “to id., Workers, S., lation.” Sheet Metal at 496 478 U. at 476. See also (O’Connor, J., part dissenting part). concurring in
m respondents The facts that are not bound the decrees, and that have no basis for a collateral attack, moreover, compel not do conclusion that the District Court should purposes have treated the decrees as nonexistent for of re- spondents’ may discrimination suit. That the decrees not di- rectly any respondents’ legal rights interfere with does not they may mean setting way that not affect the factual in a negates respondents’ claim. The fact that a criminal suspect party is not a to the issuance of a search warrant does imply presence facially may not of a valid warrant police good not be taken as evidence that acted faith. Malley Briggs, (1986); See v. 475 U. 335, S. 344-345 United (1984); Leon, States v. 468 U. S. 921-922, 924 United (1982). Ross, States v. Similarly, 456 U. S. n. employer acting the fact that an compulsion is under court employer acting good be evidence that the is faith and discriminatory Ashley without City intent. Cf. v. Jack- (1983) son, 464 U. S. dissenting 900, 903 J., (Rehnquist, certiorari) (suggesting compliance from denial of with a “might good-faith consent decree be relevant to a defense of (Second) immunity”); § Judgments Restatement 76, Com- (1982) (“If p. a, ment is held to be not binding person on the whom it invoked, it is then ignored in the determination of matters in issue in subsequent litigation, unless it is relevant for some other purpose proving good party such as faith of a who relied it”). contempt provides Indeed, the threat of a citation good a reason to most, act as all, other business justifications.27 27Because consent decrees “have attributes both of judi contracts and decrees,” they
cial differently are treated purposes. for different United Co., States v. ITT (1975). Baking Continental 223, 236, n. 10 Cleveland, Firefighters S., See also v. 478 U. at 519. example, For because the content of a consent generally product decree is negotia parties, tions between decrees are construed for purposes enforcement Co., Baking See ITT Continental 238; supra, as contracts. Stotts reviewing the evidence,
After the District Court found compulsion in fact acted had under of the consent de- App. Birmingham to Pet. for Cert. In re Reverse 107a; crees. *29 ¶ Employment Litigation, 35022, EPD Discrimination 36 (ND 1985). finding, p. Ala. on the court 36,586 Based this City coming carried its burden of forward concluded promotion legitimate policy, and, a for its with business reason accordingly, promotion held that the decisionswere “not taken requisite discriminatory necessary make the intent” to with disparate Equal a claimof treatment under Title VII or the out citing App. 107a, Pet. for Protection Clause. to Cert. United County, 2d, F. rea- v. 720 1518. For this States Jefferson respondents legally thought it that were son, and not because decrees, the entered an order bound the consent court favor of the and defendant-intervenors. plaintiff might be able to course,
Of some contexts pretextual. that reference to a consent decree is demonstrate Dept. Community Burdine, v. 450 Texas See Affairs (1981). example, plaintiff might able S. 248 For be U. the decree was collusive and that the to show that consent pri simply stamp obtained the court’s rubber defendants way agreement in no related to the eradication vate plaintiff, pervasive alterna racial discrimination. tively, might were be able to show that the defendants obey the that en decree because court bound to consent jurisdiction. Mine States v. it was without See United tered (CA6 1982), Memphis Dept., Fire on other 679 F. 2d rev’d (1984). purposes determining whether an grounds, For 467 U. S. merely for com- employer can be held liable for intentional discrimination decree, however, appropriate it plying with the terms of a consent is contract, a judicial typical decree as a order. Unlike treat consent decree, here, developed is in the context such as the ones at issue consent Moreover, adversary court the consent decree litigation. reviews reasonable, lawful, placing equitable. it to determine whether decree, judicial imprimatur provides parties with the court on the they may rely legal and that on it. Most assurance that decree is some punishable of a decree is as criminal con- significantly, violation consent 402; §§401, Fed. Rule Grim. Proc. 42. tempt. 18 U. S. C. See (1947). Workers, 330 U. S. Similarly, although 291-294 tenuous, might argue a plaintiff more because the order was were not bound the consent judgment If the and thus unenforceable.28 invalid” “transparently as a result not bound to implement defendants then the able plaintiff might program, affirmative-action was not a product the racial preference to show court order. these, however, in which there has been
In a case such as
fraudulent,
collusive,
trans
that the decree was
showing
no
it would be
invalid,
without jurisdiction,
or entered
parently
an order rem
that obedience
to conclude
“unconscionable”
a defendant to addi
a Title VII violation could subject
edying
WDAY, Inc.,
liability. Cf. Farmers tional
(1959).
all
Rather,
of the reasons that support
*30
that a
officer
be held
police
view
should not generally
Court’s
in
he carries out the commands
a
valid
facially
liable when
officials,
with added force to
or indeed to
city
warrant apply
who
the commands contained
obey
in.a
private employers,
fact,
In
Equal Employ-
entered
federal court.29
decree
(1967),
party
Birmingham,
we held that a
28 InWalker v.
violating
injunction,
an
if the in
contempt
in
of court for
even
can be held
However,
uphold
in
junction
invalid under the Federal Constitution.
was
issue,
contempt
that that was
a case
citations at
we made clear
ing the
“n.ot
transparently
only
pre
a frivolous
injunction was
invalid or had
where the
Id..,
validity.”
have relied on
at 315. Courts and commentators
tense to
collaterally
contempt
at
positing
that a
citation
reservation
this
See,
“transparently
g.,
e.
underlying
if
order was
invalid.”
tacked
(CA1 1986),
Co.,
sub
IV change predecessor litigation brought The to this was hiring promotion practices pattern discrimi- that had Birmingham nated black citizens for decades. responsible respondents for that cases are not white these history beneficia- discrimination, but are nevertheless discriminatory practices de- ries of the remedy employ- signed Any that seeks to create to correct. had been would have obtained there ment conditions that impact necessarily violations of law will have an adverse no op- job promotion whites, who must now share their compulsion imposition of liabil- to act. This added element of renders but *31 ity pursuant inequitable. decree all the more acting to a valid consent 30 con 1608.8 does not differentiate between orders “entered Section (1989). Indeed, § litigation.” or after contested 29 CFR 1608.8 sent today reasoning opinion equally applicable in would seem to liti the Court’s gated orders and consent decrees. acknowledge grounds for a collat- unwillingness
The Court’s significantly grounds eral attack on a are narrower than ante, review, 765, 6, available on direct see at n. is difficult to reconcile S., 165, Frady, with the host of cases cited United States in v. 456 at U. 6, supra, scholarly writings in n. cited in the cited the eases cited and those 5, supra. n. in
792 portunities employees with blacks.31 as white in Just past illegal discriminatory were innocent beneficiaries of practices, so is it inevitable that some of the same white em- ployees will be innocent victims who must share some of the resulting past wrongs. burdens from the redress of the nothing There is unusual about the fact that be parties may, practical seriously tween adverse as a matter, impair persons the interests of third who elect to sit on complex litigation Indeed, sidelines. in this Court has squarely firmly held that a sideline-sitter be bound as party adequate opportu an actual he had notice and a fair nity judicial finality to intervene and if interest is suffi ciently strong. Merger See N Penn-Central and & In W (1968). Bergh Cases, clusion 389 486, U. S. 505-506 Cf. v. Washington, (CA9), 535 F. 505, 2d 507 denied, cert. 429 (1976); App. Dole, U. S. 921 231 D. 63, U. S. C. Safir (1983), 70-71, 475, 718 F. 2d 482-83 denied, cert. U. S. (1984); § pp. James & Hazard 11.31, 651-652. go agree however, is no need, There that far order to eminently compli- with the District Court’s sensible view that remedying ance with the terms a valid decree violations of Equal Title VII cannot itself violate that statute or the Pro- city Birmingham, entering tection Clause.32 The into nonminority employees It is inevitable that applicants will be less it, plan well under an off affirmative-action than without no matter what example, employer form it takes. For simply agrees even when an to re minority job applicants actively, applicants cruit more white suffer the facing harm competition “nebulous” increased and the diminished likeli eventually being Schwarzchild, By hood of hired. See Public Law Private Bargain: Title VII Consent Negotiated Decrees and the Fairness of Insti Reform, tutional L. Duke J. 909-910. 32 professing difficulty In in understanding why respondents are not provides “bound” a decree employment practices a defense to ante, VII, would otherwise violate Title see n. the Court uses the word “bound” a sense that is different from that used earlier in its opinion. judgment against employer A requiring it to institute a se niority system may provide employer with a employment defense to practices that would otherwise VII. violate Title the sense in which *32 step complying decree, with this has amade substantial long history pervasive of the the eradication racial toward plagued department. that has its fire discrimination conducting carefully Court, after trial and con- District sidering respondents’ arguments, concluded this effort go respondents forward. Because have lawful and should carry already day in thus had their court and have failed to judgment I vacate the burden, their would Court proceedings Appeals and remand for further consistent with opinion. this Court, ante, at 761-762 of its is used in the cases cited
word “bound” judg- only litigation would be “bound” opinion, company days after employees But who first worked for the ment. be “bound” the sense that ended would responds my argument. The cases on which the uses when it the Court to. my entirely position. with Its facile use of the relies are consistent Court not be allowed to conceal the obvious flaws its word “bound” should analysis. notes trict effect” white Court had “in held that firefighters were “bound” a decree to which were not parties.9 And seems this Court’s to assume the District opinion its Court had consent decrees the earlier interpreted litiga tion as “that white holding firefighters precluded employment taken challenging pursuant decisions Ante, decrees.” at 758.10 It therefore, important, make clear did what District Court hold and exactly why its be affirmed. judgment should I in which the consent decrees were entered was a 1974 and genuine adversary two proceeding. groups private and the States brought United three Title VII separate actions of Bir city mingham (City), Personnel of Jefferson Board County (Board), officials,11 and various discrimination in hir- alleging 9 The Appeals Court of wrote: