EVELYN MARINO, ET AL., PETITIONERS V. JUAN U. ORTIZ, ET AL. WAYNE COSTELLO, ET AL., PETITIONERS V. THE NEW YORK CITY POLICE DEPARTMENT, ET AL. No. 86-1415 In the Supreme Court of the United States October Term, 1987 On Writ of Certiorari to the United States Court of Appeals for the Second Circuit Brief for the United States as Amicus Curiae TABLE OF CONTENTS Questions presented Interest of the United States Statement Summary of argument Argument: I. Individuals who failed to intervene in an ongoing Title VII suit are nevertheless entitled to pursue an action challenging employment-related actions taken pursuant to consent orders entered in the original suit II. Individuals who have not moved to make themselves a formal party to an ongoing Title VII suit are not entitled to appeal the entry of a consent decree in that litigation Conclusion QUESTIONS PRESENTED 1. Whether individuals who have failed to intervene in an ongoing Title VII suit may be barred from challenging employment-related actions taken pursuant to consent orders entered in that litigation. 2. Whether individuals who have not moved to make themselves a formal party to an ongoing Title VII suit may appeal the entry of a consent decree in that litigation, certain terms of which the individuals find objectionable. INTEREST OF THE UNITED STATES This case raises important questions concerning the rights and obligations of persons whose interests are affected by, but who are not party to, ongoing litigation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 200e et seq., and by consent decrees entered therein. The United States has significant enforcement responsibilities under Title VII and is therefore often involved in or affected by such Title VII suits and decrees. See 42 U.S.C. 2000e-5. Also numerous agencies of the United States engaged in federal court litigation concerning a range of subjects enter into or challenge consent decrees entered into by private parties and are vitally affected by rules of intervention and appealability. Accordingly, the United States has a substantial interest in the questions presented by this case. STATEMENT 1. In June 1983 and April 1984, the New York City Police Department (NYCPD) administered a civil service examination to 11,899 police officers seeking promotion to the rank of sergeant (Pet. App. A60, A83-A86). Of these candidates for promotion, 79% were white, 12.3% were black, and 8.7% were Hispanic (id. at A60, A83). After scoring the examination, the NYCPD established a minimum point cut-off that left 1,041 officers eligible for promotion, 93.5% of whom were white, 2.3% of whom were black, and 4.2% of whom were Hispanic (id. at A60). The NYCPD proposed to fill numerous extant vacancies in the rank of sergeant from the 1,041 officers on this eligibility list (id. at A85-A86). In late 1984, however, two groups representing black and Hispanic police officers on the NYCPD force -- the Guardians Association of the Police Department of New York City and the Hispanic Society of the New York City Police Department -- filed separate suits under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., to prevent the eligibility list from being used in the selection of officers for promotion (Pet. App. A3, A60-A61; J.A. 11-32). The plaintiff-groups alleged that the civil service examination, and thus the eligibility list it produced, had a disparate impact on black and Hispanic officers and were not job-related (Pet. App. A60-A61; J.A. 17-19, 28-30). The NYCPD, and other city officials named as defendants, promptly agreed not to use the eligibility list as a basis for permanent promotions, pending the resolution of the litigation, but sought and received the court's approval to make provisional promotions of 534 officers from the eligibility list -- 506 of whom were white (94.8%), 7 of whom were black (1.37%), and 21 of whom were Hispanic (3.94%) (Pet. App. A84). Three groups then successfully moved to intervene in both lawsuits (Pet. App. A4, A61-A62, A81) -- the Sergeants Benevolent Association (SBA) on behalf of the officers who were provisionally promoted to the rank of sergeant from the eligibility list (id. at A4); the Sergeants Eligibles Association (SEA) on behalf of those officers who had not been provisionally promoted but who remained on the eligibility list (ibid.); and a group called the "Schneider intervenors" on behalf of certain white ethnic groups and other individuals who had not been promoted and who, although they had taken the civil service examination, were not on the eligibility list (id. at A4, A60-A62). These three groups joined with the plaintiff-groups and the defendants in attempting to negotiate a mutually acceptable settlement of the lawsuits (id. at A4-A5, A61-A62). Ultimately, all parties except the Schneider intervenors agreed to the terms of such a settlement (Pet. App. A5; J.A. 52-85). That proposed settlement included the permanent promotion of all officers on the eligibility list as well as a sufficient number of black and Hispanic officers so that each group would be represented at the rank of sergeant in proportion to the number of those taking the civil service examination (Pet. App. A5; J.A. 70-75). The parties proposed to select these additional black and Hispanic officers on the basis of their scores on the written portion of the civil service examination (Pet. App. A63; J.A. 71-72, 74). Because the NYCPD continued to face problems associated with the shortage of sergeants on the force, the court, on November 27, 1985, gave interim approval to this proposal (Pet. App. A6, A84-A85; J.A. 46-48), thus allowing 573 more officers, approximately 160 of whom were not on the eligibility list, to receive provisional promotions to the rank of sergeant (Pet. App. A6, A84-A85). 2. On December 30, 1985, the Marino petitioners, representing a class of white officers who were not on the eligibility list but who had examination scores at least as high as the lowest scoring minority officer receiving a provisional promotion under the interim settlement order, filed suit against various city officials (Pet. App. A7-A8). They alleged that the provisional promotions made pursuant to the interim settlement orders violated the Equal Protection Clause of the Fourteenth Amendment (id. at A26-A27), and prayed that members of their class be promoted to current and future sergeant vacancies as a remedy (id. at A28-A29). The defendant-officials successfully moved that the Marino petitioners' case be reassigned to the judge who was handling the Guardians Association and Hispanic Society litigation (Pet. App. A8; J.A. 1, 87-91). Then, they moved that the Marino petitioners' complaint be dismissed as an impermissible collateral attack upon the interim settlement orders entered in the Guardians Association and Hispanic Society litigation (Pet. App. A30-A38). Before ruling on that motion, the court consolidated the Guardians Association and Hispanic Society cases and scheduled a fairness hearing concerning the terms of a final consent decree that the parties to that litigation (except for the Schneider intervenors) had submitted, on February 7, 1986 (Pet. App. A64, A89; J.A. 5-6). Notice of the proposed consent decree and hearing date was sent to all parties and posted in all precinct stations (Pet. App. A64; J.A. 49-51). In response, the Schneider intervenors and the Costello petitioners, a group of white officers who were not on the eligibility list but who had scores equal to or higher than similarly situated black and Hispanic officers who had been provisionally promoted, /1/ notified the court, in writing and then orally at the April 17, 1986 fairness hearing, of their objections to the proposed decree (Pet. App. A64-A65, A89-A90; J.A. 183-206). On April 25, 1986, the court granted the motion of the defendants in the Marino litigation to dismiss the complaint filed therein (J.A. 1). Finally, on June 16, 1986, the court approved the entry of the final consent decree in the Guardians Association and Hispanic Society litigation (Pet. App. A7, A65, A80-A99). 3. The Marino petitioners and the Costello petitioners filed timely notices of appeal (Pet. App. A2, A65-A66). /2/ In separate decisions, however, the Second Circuit affirmed the district court's dismissal of the Marino petitioners' complaint (id. at A1-A12) and ruled that the Costello petitioners had no right to file an appeal (id. at A58-A79). a. In affirming the dismissal of the Marino petitioners' complaint, the court relied on what it characterized as the "well-settled" rule "that collateral attacks on consent decrees entered in Title VII actions are not permitted" (Pet. App. A8, citing Dennison v. City of Los Angeles Dep't of Water and Power, 658 F.2d 694 (9th Cir. 1981), and Prate v. Freedman, 430 F. Supp. 1373 (W.D.N.Y.), aff'd mem., 573 F.2d 1294 (2d Cir. 1977), cert. denied, 436 U.S. 922 (1978)). It noted that "salutary policies" underlie this rule -- namely, that "(a)llowing the terms of a consent decree to be contested in separate lawsuits would raise the specter of inconsistent or contradictory proceedings, would promote continued uncertainty thus undermining the concept of final judgment and would violate the policy of promoting settlement in Title VII actions" (Pet. App. A8-A9). The court stated that, while the district court "had not given final approval to the consent decree in Hispanic Society at the time (it) dismissed the lawsuit," that litigation had "proceeded to a very significant stage" (Pet. App. A10). It then asserted that, "(h)ad (the Marino petitioners) been allowed to maintain this lawsuit under these circumstances, the parties' incentive to pursue the Hispanic Society settlement would have been seriously eroded" (id. at A10-A11); in its view, "the settlement would have had no utility i(f) it (had) failed to prevent further litigation of the matter" (id. at A11). The court added that, "since even the later actual entry of the consent decree in Hispanic Society would not have decided the issue, the concept of a final judgment would have been undermined" if the Marino litigation had been allowed to go forward and, "(b)y the same token," "would have * * * invit(ed) conflicting results" (ibid.). It therefore concluded that the district court "was correct in deeming this suit an impermissible collateral attack on a consent decree" (id. at A11-A12). The court suggested that the Marino petitioners' "proper course, as in most cases where collateral attacks have been dismissed, would have been to intervene in the lawsuit from which the consent decree issued" (Pet. App. A12, citing Dennison v. City of Los Angeles Dep't of Water and Power, 658 F.2d at 696, and Black and White Children v. School District, 464 F.2d 1030 (6th Cir. 1972)). Indeed, the court noted that the defendants had suggested this course to the Marino petitioners (Pet. App. A12) and commented that, "(i)f intervention had been denied, the proper course would have been to appeal that denial" (ibid. (citation omitted)). b. In dismissing the Costello petitioners' appeal, the court relied on the "general rule" that "only a party of record in a lawsuit has standing to appeal from a judgment of the district court" (Pet. App. A66, citing United States ex rel. Louisiana v. Jack, 244 U.S. 397, 402 (1917), Martin-Trigona v. Shiff, 702 F.2d 380, 385 (2d Cir. 1983), and United States v. McFaddin Express, Inc., 310 F.2d 799, 801 (2d Cir. 1962)). Since the Costello petitioners "never moved to intervene in these proceedings, they (were) not parties to this litigation, and their appeal (had to) be dismissed" (Pet. App. A66). The court recognized that the existence of exceptions to this general rule and stated that "(t)he primary exception is when the nonparty has an interest that is affected by the trial court's judgment" (Pet. App. A67, citing Martin-Trigona v. Shiff, 702 F.2d at 385-386). But it found that the Costello petitioners "were not on the original eligible list, * * * have no right to promotion under state law(,) and * * * do not allege that the examination discriminated against them" and, therefore, "would not be entitle(d) to promotion" (Pet. App. A68). In such circumstances, the court concluded, the Costello petitioners have no right of appeal as nonparties with an interest in the order below (ibid.). Finally, the court rejected various arguments that the Costello petitioners advanced concerning why they should be treated as de facto parties to the litigation (Pet. App. A68-A75). With regard to the Costello petitioners' claim that they are denominated as "defendants" under the definitional provisons of the consent decree, /3/ the court noted that "the definitions in the settlement by their very terms delineate the parties to the agreement and not the parties to the litigation" (id. at A69); that, "(j)ust as the settlement cannot divest a plaintiff or defendant of party status in the litigation, it cannot confer party status on a nonparty" (id. at A70); and, in any event, that "(t)his provision of the settlement simply binds (the Costello petitioners) to comply with its terms in their official capacities as employees of the defendants, and does not give them standing to raise their current objections to the settlement as violative of their individual rights" (id. at A70-A71). And, with regard to the Costello petitioners' claim that the "filing (of) written objections to the settlement and (their) appear(ance) at the hearing gave them status as parties to the litigation" (id. at A74), the court noted that the Costello petitioners' "predicament results from their ste(a)dfast refusal to comply with the requirements for intervention set forth in Fed. R. Civ. P. 24" (id. at A75); that, "(b)ecause the requirements for intervention as a party have been ignored, the people pursuing this appeal have no more standing than individuals selected at random from a telephone book" (id. at A77); and, in any event, that it could not determine the decree's effect on the Costello petitioners' interests because "the record contains no affidavits or other sworn allegations describing their individual status as police officers or as candidates for sergeant" (id. at A77-A78). SUMMARY OF ARGUMENT I. The court below erred in dismissing the Marino petitioners' complaint as an impermissible attack on the final consent decree entered in the Hispanic Society and Guardians Association litigation. The Marino petitioners' complaint did not even challenge the final consent decree; it challenged the provisional promotions implemented pursuant to the interim settlement orders of the court. In any event, it is a fundamental principle of due process that a judgment may not be held binding on a litigant who was neither party nor privy to the litigation in which that judgment was entered. While certain carefully-drawn exceptions to this rule against nonparty preclusion exist, none is applicable here. The parties in the Hispanic Society and Guardians Association litigation did not attempt to join the Marino petitioners, consolidate the Marino litigation with their lawsuit, demonstrate that the Marino petitioners were adequately represented in their settlement discussions, or show that Title VII's remedial scheme expressly forecloses private litigants (liek the Marino petitioners) from successively litigating issues that other litigants have raised in collateral Title VII litigation. The "salutary policies" that concerned the court below can be and in the intention of Congress must be accommodated not by placing the burden of intervention on affected third parties but by other devices, particularly by requiring the litigants to join any party as to whom they may wish to argue preclusion at a later stage. Thus, the drafters of the Federal Rules of Civil Procedure determined that the concern for finality of judgments would be better served by mandatory joinder than by mandatory intervention procedures. Accordingly, in Rule 19, they placed the burden on the courts and the existing parties, not on the nonparties, to ensure that the risk of double, multiple, or otherwise inconsistent judgments is minimized. In addition, rules concerning transfer, consolidation, stare decisis, and comity are available to reduce the potential for inconsistent or contradictory proceedings. Finally, this Court has recognized that the policy favoring settlement of Title VII suits cannot be used to justify the abrogation of non-parties' legal rights. Allowing third-persons collaterally to attack consent decrees will not stop parties from entering into mutually advantageous settlements and, in any event, true voluntary compliance with Title VII requires either that all interested persons consent to any settlement agreement or that the agreement negotiated (be able to withstand their third-party attack. II. The court below correctly determined, however, that the Costello petitioners had no right to appeal the district court's entry of the final consent decree. This Court has long held that persons who are not formally parties to litigation have no right to appeal orders entered therein. The Costello petitioners clearly were not parties to the Hispanic Society and Guardians Association litigation. They were not among the original contestants in the district court; they did not attempt to intervene; they were not substituted for another party; and they were not joined. Their participation was limited to filing written and oral objections to the proposed consent decree. Thus, like an amicus curiae, they were not parties, are not bound by the terms of the consent decree, and have no right to appeal. To be sure, this Court has suggested on a few occasions that there may be exceptions to the rule against nonparty appeals and, accordingly, a few courts of appeals have admitted such exceptions. But Rule 3(a) of the Federal Rules of Appellate Procedure authorizes only parties to file notices of appeal. Moreover, as noted above, persons who are aggrieved by conduct resulting from a judgment to which they are not party may still protect their interests by filling a separate action (collaterally attacking that judgment) or by filing a post-judgment motion for intervention. We therefore submit that judicially crafted exceptions to the rule against nonparty appeals are both without authority and unnecessary. Even if some exception to the rule against nonparty appeals exists, however, the Costello petitioners cannot qualify for it. The exception noted by the court below -- to wit, that the nonparty must have an interest that is affected by the trial court's judgment -- is not an exception at all, and must be rejected. The exception noted by several other courts of appeals -- to wit, that the nonparties must have actively participated in the district court and the equities must favor allowing them to go forward -- is inapplicable on the facts of this case. The Costello petitioners' involvement in the district court proceedings was minimal. They made no effort to intervene either before or after the decree was entered, and they submitted no affidavits or other sworn allegations concerning the extent to which the entry of the district court's judgment adversely affected their interests. They should not be allowed to proceed with an appeal. ARGUMENT I. INDIVIDUALS WHO FAILED TO INTERVENE IN AN ONGOING TITLE VII SUIT ARE NEVERTHELESS ENTITLED TO PURSUE AN ACTION CHALLENGING EMPLOYMENT-RELATED ACTIONS TAKEN PURSUANT TO CONSENT ORDERS ENTERED IN THE ORIGINAL SUIT The court below dismissed the Marino petitoners' complaint as an impermisslbe "collateral attack" on the final consent decree entered in the Hispanic Society and Guardians Association litigation. But the Marino petitioners' complaint did not challenge that final consent decree and, for this reason alone, the judgment below is technically wrong. More importantly, however, the "collateral attack" doctrine on which the court below relied is at odds with the fundamental principle that a judicial decree is not binding on any person who was not party to the litigation in which that decree was entered. The "salutary policies" that the "collateral attack" doctrine promotes -- to wit, the policies favoring finality of judgments, avoidance of inconsistent or contradictory judgments, and voluntary settlement of Title VII suits -- can be satisfactorily accommodated by other procedural devices that are consistent with this fundamental principle of due process and with the congressionally approved rules of federal court administration. Accordingly, we agree with the Justices of this Court and the courts of appeals that have criticized or rejected the "collateral attack" doctrine. A. As an initial matter, we question whether the court below correctly characterized this case as a collateral attack on the final consent decree entered in this litigation. The Marino petitioners filed their complaint approximately one month before the parties to the Hispanic Society and Guardians Association litigation even submitted their proposed consent decree to the court. The court did not approve or enter that decree until over six months after the Marino petitioners' complaint was filed. /4/ The Marino petitioners actually challenged the provisional promotions implemented by the defendants; their complaint does not mention or attack the final consent decree to which the court below referred. See Pet. App. A14-A29. Therefore, their complaint cannot logically be characterized as a "collateral attack" on the final consent decree entered in the Hispanic Society and Guardians Association litigation. B. The complaint did challenge the provisional promotions undertaken pursuant to the interim orders and the question remains whether the Marino petitioners' challenge was properly dismissed as an impermissible collateral attack on those interim orders. We believe that it was improper for the courts below to do so and, indeed, it would have been challenging a final consent decree. 1. This Court has long stated that "(i)t is a violation of due process for a judgment to be (held) binding on a litigant who was not a party or a privy" to the litigation in which that judgment was entered (Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n.7 (1979)). See, e.g., Blonder-Tongue Laboratories, Inc. v. University Foundation, 402 U.S. 313, 328-329 (1971); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969); Hansberry v. Lee, 311 U.S. 32, 40-42 (1940). /5/ As Chief Justice Rehnquist has noted, "(t)his rule can be traced to an opinion of Chief Justice Marshall in Davis v. Wood, 1 Wheat. 6, 8-9 (1816)," and "is part of our 'deep-rooted historic tradition that everyone should have his own day in court'" (Ashley v. City of Jackson, 464 U.S. 900, 902 (1983) (Rehnquist, J., joined by Brennan, J., dissenting from the denial of certiorari), quoting 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure, Section 4449, at 417 (1st ed. 1981)). This "deep-rooted historic tradition," which is embodied in both the Due Process Clause and the various rules that Congress had enacted to govern the administration of the federal courts, recognizes that just and accurate judicial decisionmaking is more likely to result when persons are allowed to present their own cases -- at the time and place of their own choosing. See Parklane Hosiery Co. v. Shore, 439 U.S. at 327 n.7; Blonder-Tongue Laboratories, Inc. v. University Foundation, 402 U.S. at 328-329; see generally 15 C. Wright, A. Miller & E. Cooper, supra, Section 3841, at 200-202 (1st ed. 1976); 18 C. Wright, A. Miller & E. Cooper, supra, Section 4449, at 415-419; Section 4452, at 446-453. Of course, producing jsut and accurate judicial decisionmaking is not the only legitimate concern of our legal system. Finality, efficiency, and consistency of decision are also serious concerns. Accordingly, procedural devices exist for bringing nonparties into litigation and, in limited circumstances, for binding them to the results of litigation notwithstanding their absence. In appropriate circumstances and pursuant to proper procedures, a person may be joined in and thus become bound by litigation in which he would prefer not to participate. See Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 107-125 (1968); Fed. R. Civ. P. 19. Similarly, in appropriate circumstances and pursuant to proper procedures, "a district court may transfer any civil action to any other district or division where it might have been brought" (28 U.S.C. 1404(a)); and the receiving court may consolidate that action with any related litigation that is before it. See Fed. R. Civ. P. 42; see generally 15 C. Wright, A. Miller & E. Cooper, supra, Section 3848, at 249-251, id. Section 3481, at 200-202. Indeed, a person may be bound by litigation to which he is not a party where there are sufficient assurances that his interests are adequately represented therein by a certified class (see Hansberry v. Lee, 311 U.S. at 41-42; Fed. R. Civ. P. 23), where he has sufficient control over the conduct of one of the parties to that litigation (see Montana v. United States, 440 U.S. 147, 154-155 (1979); 18 C. Wright, A. Miller & E. Cooper, supra, Section 4451, at 427), or where there is a special remedial scheme -- as, for example, exists in bankruptcy, reorganization, and probate statutes -- that expressly forecloses successive litigation by nonparticipants (see 18 C. Wright, A. Miller & E. Cooper, supra, Section 4452, at 451, Section 4458, at 520-521; see also Chicago, R.I. & P. Ry. v. Schendel, 270 U.S. 611, 618-620 (1926)). These various procedural devices, permitted by the Due Process Clause and the rules that govern administration of the federal courts, allow courts and parties, in appropriate cases, to achieve some finality, efficiency, and consistency in litigation without unacceptably undermining the accuracy of the judicial decisionmaking process or violating the due process rights of nonparticipants. But none of these exceptions to the general rule against preclusion of nonparties applies in this case. Here, the Marino petitioners filed a lawsuit separate and apart from the Hispanic Society and Guardians Association litigation. The parties in the latter litigation did not attempt to join the Marino petitioners as parties to their litigation or to have the Marino litigation formally consolidated with their lawsuits. /6/ And there has been no showing, much less a defensible finding, that any party in the primary lawsuits adequately represented the Marino petitioners' interests, that the Marino petitioners had control over the conduct of any party in the Hispanic Society and Guardians Association litigation, or that Title VII's remedial scheme forecloses private litigants from successively litigating issues that other private litigants have raised in collateral Title VII litigation. /7/ Thus, under time-honored rules of due process and civil procedure, the Marino petitioners should have been allowed to proceed with their suit, as this Court's decisions acknowledge. See Firefighters v. Cleveland, No. 84-1999 (July 2, 1986), slip op. 26-27; W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 770-772 (1983); see also United States v. Mendoza-Lopez, No. 85-2067 (May 26, 1987), slip op. 9-13. 2. In holding to the contrary, the court below followed a line of cases holding that collateral attacks on consent decrees entered in Title VII actions are not permissible. See Thaggard v. City of Jackson, 687 F.2d 66 (5th Cir. 1982), cert. denied, 464 U.S. 900 (1983); Dennison v. City of Los Angeles Dep't of Water & Power, 658 F.2d 694 (9th Cir. 1981); Black & White Children v. School District, 464 F.2d 1030 (6th Cir. 1972); Austin v. County of DeKalb, 572 F. Supp. 479 (N.D. Ga. 1983); Prate v. Freedman, 430 F. Supp. 1373 (W.D.N.Y.), aff'd, 573 F.2d 1294 (2d Cir. 1977), cert. denied, 436 U.S. 922 (1978); Lutz v. Shapp, 70 F.R.D. 549 (E.D. Pa.), aff'd, 546 F.2d 417 (3d Cir. 1976), cert. denied, 430 U.S. 968 (1977); see also National Wildlife Federation v. Gorsuch, 744 F.2d 963, 969 (3d Cir. 1984). Like the court below (see Pet. App. A8-A11), the courts in those cases have expressed their concern that allowing collateral attacks on consent decrees entered in Title VII litigation will prevent the attainment of final judgments, raise the specter of inconsistent or contradictory proceedings, and undermine the policy of promoting settlement of Title VII actions. They therefore have concluded that persons with interests affected by ongoing Title VII litigation must intervene in those suits or face preclusion from the judgments entered therein. While the concerns motivating this conclusion are significant, they can and should be accommodated by the more finely-tuned procedural devices that Congress has approved for reconciling the tension between procedural fairness and judicial efficiency. a. The concern that nonparties may wish to relitigate issues previously decided and thus prevent the attainment of final judgments is not a new one. The drafters of the Federal Rules of Civil Procedure expressly faced that concern when they were designing the rules that now govern the administration of the federal courts. The drafters recognized that rules of intervention have always been drawn in permissive terms and, therefore, that nonparties can refrain from intervention in litigation that affects them. /8/ Rather than redraft the rules of intervention in mandatory terms, however, they determined that the concern for finality of judgments would be "better (served) by mandatory joinder procedures" (18 C. Wright, A. Miller, & E. Cooper, supra, Section 4453, at 453). Accordingly, they added Rule 19 to the Federal Rules of Civil Procedure. See Advisory Committee's Note to Fed. R. Civ. 19; see also Comment, Collateral Attacks on Employment Discrimination Consent Decrees, 53 U. Chi. L. Rev. 147, 164 (1986). Rule 19 has two parts. Part (a) requires the existing parties and the court to join those persons whose presence is necessary and desirable for a just adjudication. /9/ Part (b) requires the existing parties and the court to work out a fair and just solution when joinder is not possible -- so that neither the absent person nor those already party to the litigation will be prejudiced by, for example, the issuance of a decree that impairs their rights or exposes them to double, multiple, or otherwise inconsistent obligations. /10/ Together, parts (a) and (b) of Rule 19 plainly place the responsibility (and means) for obtaining a final judgment with the courts and the existing parties, and not with the nonparties (such as the Marino petitioners), to the litigation. Accord, Consumers Union, Inc. v. Consumer Products Safety Comm'n, 590 F.2d 1209, 1223 (D.C. Cir. 1978), rev'd on other grounds sub nom. GTE Sylvania, Inc. v. Consumers Union, Inc., 445 U.S. 375 (1980); Adams v. Bell, 711 F.2d 161, 194-198 (D.C. Cir. 1983) (Wright, J., dissenting), cert. denied, 465 U.S. 1021 (1984). The judicially developed "collateral attack" doctrine turns this allocation of responsibility on its head and is thus irreconcilable with the procedural scheme envisioned by the drafters of Rule 19 and the Congress that approved that rule's adoption. b. Nor can the "collateral attack" doctrine be justified as a necessary means for avoiding the danger of inconsistent or contradictory proceedings. For one thing, the prevention of such inconsistent or contradictory proceedings is one of the principal purposes of Rule 19; application of the "collateral attack" doctrine would render Rule 19 a legislative redundancy. See Fed. R. Civ. P. 19(a) (joinder required where person's absence would "leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations"); see also McCord, A Single Package for Multiparty Disputes, 28 Stan. L. Rev. 707, 723-724 (1976). Moreover, transfer and consolidation procedures are available to prevent judicial proceedings from multiplying uncontrollably or undesirably and to enable a single judge to control litigation that is initiated by different parties in different places. See 28 U.S.C. 1404(a); Fed. R. Civ. P. 42; 15 C. Wright, A. Miller & E. Cooper, supra, Section 3841, at 200-202; id. Section 3485, at 287. Indeed, even where joinder, transfer, and consolidation devices will not together ensure that only a single binding judgment can result concerning any particular matter, principles of stare decisis and comity will inform the second court that acquires jurisdiction over that matter and thus minimize the possibility of inconsistent or contradictory judgments. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976); Kerotest Mfg. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 181-182 (1952). And, in all events, the concern for correctness of judicial decisionmaking is as important as the concern for consistency among judgments and, accordingly, some inconsistent or contradictory judgments must be accepted. /11/ In attempting to eliminate (rather than to minimize) such inconsistent judgments, the "collateral attack" doctrine ignores our "clear experience with the general fallibility of litigation and with the specific distortions of judgment that arise from the very identity of the parties" (18 C. Wright, A. Miller, & E. Cooper, supra, Section 4449, at 417). Ironically, that experience has been most evident in cases involving Title VII consent decrees, which themselves amount to "little more than a contract between the parties, formalized by the signature of a judge" (Ashley v. City of Jackson, 464 U.S. at 902 (Rehnquist, J., dissenting from denial of certiorari); accord, Firefighters v. Cleveland, slip op. 14-16, 19-21), and which involve strong incentives and opportunity to make innocent and unrepresented third-persons pay the price of sins that were not of their own making and from which they may not personally have benefited. Accord, W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757, 767-770, 771-772 (1983); Ford Motor Co. v. EEOC, 458 U.S. 219, 239-240 (1982). /12/ In short, the "collateral attack" doctrine pursues consistency in judicial decisionmaking with an unwarranted insensitivity to both the need for accurate judicial decisionmaking and the potential defenselessness of innocent and unrepresented third-persons. c. This insensitivity cannot be justified by reference to the policy favoring voluntary settlement of Title VII disputes. To be sure, "Congress (has) expressed a strong preference for encouraging voluntary settlement of employment discrimination claims" (Carson v. American Brands, Inc., 450 U.S. 79, 88 n.14 (1981)) and this Court accordingly has required that the resolution of interpretive questions concerning Title VII take account of the policy favoring voluntary settlement (see, e.g., Johnson v. Transportation Agency, No. 85-1129 (Mar. 25, 1987), slip op. 12 & n.8; Ford Motor Co. v. EEOC, 458 U.S. at 229, Carson v. American Brands, Inc., 450 U.S. at 88 n.14). But the Court has also explicitly recognized, in two cases that are dispositive here, that the policy favoring settlement of Title VII disputes is not absolute and cannot be used to justify the abrogation of nonparties' protected legal interests. In W.R. Grace & Co. v. Rubber Workers, 461 U.S. 757 (1983), where an employer entered into a conciliation agreement with the EEOC that required it to disregard the seniority provisions of its extant collective bargaining agreement, the Court held that the policy favoring voluntary settlement of Title VII suits did not provide sufficient justification for overturning an arbitration award that required the employer to pay damages to employees who would not have been laid-off had the collective bargaining agreement's seniority provisions been followed. The Court noted that, "(a)lthough the ability to abrogate unilaterally the provisions of a collective-bargaining agreement might encourage an employer to conciliate with the (EEOC), the employer's added incentive to conciliate would be paid for with the union's contractual rights" (as well as with the rights of the individual employees) (461 U.S. at 771; id. at 770). The Court further noted that "conferring such power on the (EEOC) and an employer * * * would be unlikely to further true conciliation between all interested parties" (ibid. (emphasis added)), reasoning that, "(a)lthough an innocent union might decide to join in Title VII conciliation efforts in order to protect its contractual position, neither the employer nor the (EEOC) would have any incentive to make concessions to the union * * * (since they) would know that they could agree without the union's consent and that their agreement would be enforced" (ibid.). And, conversely, the Court added, "enforcing the award * * * should encourage conciliation and true voluntary compliance with federal employment discrimination law" since it would require that all employees' rights be respected in Title VII settlement negotiations (ibid. (emphasis added)). Similarly, in Firefighters v. Cleveland, supra, where an employer and a minority-plaintiff class entered into a consent decree providing for the use of race-conscious remedies, the Court held that, while the policy favoring voluntary settlement of Title VII suits does not bar a court from approving such race-conscious decrees, neither does that policy preclude a union representing nonminority employees from challenging such a decree on its merits. On the one hand, the Court noted, "(i)t has never been supposed that one party -- whether an original party, a party that was joined later, or an intervenor -- could preclude other parties from settling their own disputes and thereby withdrawing from the litigation(;) (t)hus, while (such a party) is entitled to present evidence and have its objections heard at the hearing on whether to approve a consent decree, it does not have power to block the decree merely by withholding its consent" (slip op. 26). On the other hand, the Court added, "parties who choose to resolve litigation through settlement may not dispose of the claims of a third party * * * without that party's agreement"; "(a) court's approval of a consent decree between some of the parties * * * cannot dispose of the valid claims of nonconsenting (third-parties)" (ibid.). Rather, the Court concluded, "if properly raised, these claims remain and may be litigated by the (third-party)" (ibid.). Accord, id. at 1-2 (O'Connor, J., concurring). The Court's analysis in W.R. Grace & Co. and Firefighters v. Cleveland is therefore dispositive of both the voluntary settlement issue and, indeed, the larger collateral attack question at issue here. For one thing, it is a gross overstatement to suggest, as did the court below (Pet. App. A11), that a "settlement would have no utility if it failed to prevent further litigation of the matter." /13/ As noted in W.R. Grace & Co., to the extent the parties are compromising their own claims and thus sharing the cost of settlement among themselves, very little reduction in settlement incentives should occur. The parties' incentive to settle would be eroded only to the extent that the settlement might give rise to liability on their part to the Marino petitioners (for the costs of the settlement, if any, that the Marino petitioners have been improperly asked to bear). Even then, it would appear that the diminution of incentive to settle between the existing parties would be no greater than is appropriate in light of the economic benefits that the settlement will have for them. In any event, as both W.R. Grace & Co. and Firefighters v. Cleveland note, /14/ the policy favoring voluntary settlement of Title VII claims is merely part of a more general policy of promoting voluntary compliance with the statute. That more general policy is promoted only where all persons with an interest in a Title VII dispute are party to a resulting consent decree or, in the absence of such consensus, where any consent decree that results can withstand substantive challenge from adversely affected third-parties. Compliance with Title VII is not encouraged when parties are allowed to ignore and, indeed, abrogate the rights of those who are not present. Accord, Comment, Collateral Attacks on Employment Discrimination Consent Decrees, 53 U. Chi. L. Rev. at 168-172. d. Indeed, because of the strict rules concerning timeliness of intervention that have been applied by several courts of appeals, application of the collateral attack doctrine may leave many interested third-persons without any opportunity to be heard at all. Though we do not agree with them, several courts of appeals, including the Second Circuit, have held that the timeliness of intervention must be measured from the date upon which a complaint or proposed consent decree is filed, rather than from the date on which the could-be intervenors' cause-of-action allegedly accrued, whether their interests have been adversely affected at that earlier time or not. See, e.g., United States v. Yonkers, 801 F.2d 593, 594-596 (2d Cir. 1986); Deveraux v. Geary, 765 F.2d 268, 271-275 (1st Cir. 1985), cert. denied, No. 85-492 (July 7, 1986); Corley v. Jackson Police Dep't, 755 F.2d 1207, 1209-1210 (5th Cir. 1985). Thus, it may well be impossible for third-parties (in the Second and other Circuits) to intervene and challenge a proposed consent decree: On the one hand, before the consent decree is made public, they may not be aware that it has been proposed or they may not yet have suffered (and may never suffer) the concrete injury on which they can properly base a motion for intervention. See, e.g., Firebird Society v. Bd. of Fire Commissioners, 66 F.R.D. 457 (D. Conn.), aff'd mem., 515 F.2d 504 (2d Cir.), cert. denied, 423 U.S. 867 (1975). And, on the other hand, if they delay their attempt at intervention (until their speculative interest becomes concrete), they will quite likely be turned away as having moved untimely to intervene. /15/ It is therefore ironic that the court below would defend its application of the collatreal attack doctrine by reference to intervention principles; in fact, as applied by the courts of appeals (including the circuit below), the two doctrines have combined to create a pincers movement denying interested third-persons all possible recourse against consent decrees to which they object, thus completely depriving them of their rights under the Due Process Clause and the federal rules of procedure. 3. For these reasons, the collateral attack doctrine has been criticized and rejected by members of this Court and by various courts of appeals. For example, in Ashley v. City of Jackson, 464 U.S. at 901-902, 904, then-Justice Rehnquist, joined by Justice Brennan, found himself "at a loss to understand the origins of the doctrine of 'collateral attack'"; he concluded that there is "no justification, either in general principles of preclusion or the particular policies implicated in Title VII suits, for (a district court's) refusal to take jurisdiction (in such a) case." Similarly, in United States v. Jefferson County, 720 F.2d 1511, 1518 (1983), after reviewing the case approving the "collateral attack" doctrine, the Eleventh Circuit refused to "follow this path to the extent that it deprives a nonparty of the decree to his day in court to assert the violation of his civil rights." Indeed, a panel of the Fifth Circuit, which has adopted the "collateral attack" rule, has suggested the need for a "reexamination of (that) doctrine in the appropriate forum, particularly in light of the persuasive opinion of Justice Rehnquist, joined by Justice Brennan, * * * in (Ashley v. City of Jackson, 464 U.S. 900 (1983))" (Corley v. Jackson Police Department, 755 F.2d 1207, 1210 (1985)). See generally Feller v. Brock, 802 F.2d 722, 727-729 (4th Cir. 1986). We agree and accordingly submit that the Court should jettison the "collateral attack" doctrine now. II. INDIVIDUALS WHO HAVE NOT MOVED TO MAKE THEMSELVES A FORMAL PARTY TO AN ONGOING TITLE VII SUIT ARE NOT ENTITLED TO APPEAL THE ENTRY OF A CONSENT DECREE IN THAT LITIGATION The court below also held that the Costello petitioners had no right to appeal the district court's entry of the final consent decree in the consolidated Guardians Association/Hispanic Society litigation. While we do not entirely agree with the analysis of the court below, we do agree with its holding. A. This Court has long held that persons who have not formally made themselves party to litigation have no right to appeal orders entered therein. See, e.g., Auto Workers v. Schofield, 382 U.S. 205, 209 (1965); United States ex rel. Louisiana v. Jack, 244 U.S. 397, 402 (1917); Ex parte Leaf Tobacco Bd. of Trade, 222 U.S. 578, 581 (1911); South Carolina v. Wesley, 155 U.S. 542, 545 (1895). The term "party" includes not only the original litigants, but also those who have intervened, been substituted, or joined at a later time. See United States v. LTV Corp., 746 F.2d 51, 53 (D.C. Cir. 1984). Otherwise, however, the "orderly adjudication of contesting rights" (United States v. Seigel, 168 F.2d 143, 146 (D.C. Cir. 1948)) and the constitutional and prudential concerns underlying standing doctrine (see Bender v. Williamsport Area School Dist., 475 U.S. 534, 543-545 (1986); West v. Radio-Keith-Orpheum Corp., 70 F.2d 621, 624 (2d Cir. 1934) (opinion of Hand, J.)) require that persons be precluded from appealing judgments to which they are not bound. The Costello petitioners clearly were not parties to, and thus are not bound by, the consent decree entered in the Hispanic Society/Guardians Association litigation. They were not among the original contestants in the district court; they did not attempt to intervene; they were not substituted for another party; and they were not joined. They did not even participate in the negotiation of the interim or final consent orders. They merely filed written objections to the proposed decree and, through counsel, argued at the fairness hearing against the final decree's entry. That the definitional provisions of the consent decree arguably name them as "defendants" does not bind them to the district court's judgment or establish their party status. "Just as the settlement cannot divest a plaintiff or defendant of party status in the litigation, it cannot confer party status on a nonparty" (Pet. App. A70). Moreover, "(t)his provision of the settlement simply binds (the Costello petitioners) to comply with its terms in their official capacities as employees of the defendants, and does not give them standing to raise their current objections to the settlement as violative of their individual rights" (ibid.). In short, the Costello petitioners, like an amicus curiae, were nothing more than interested bystanders and, accordingly, were correctly held to be without any right of appeal. B. On a few isolated occasions, this Court has suggested, always in dicta, that there may be exceptions to the rule against nonparty appeals. See United States ex rel. Louisiana v. Jack, 244 U.S. at 402; Ex parte Cockroft, 104 U.S. 578, 579 (1881); Ex parte Cutting, 94 U.S. 14, 20-22 (1876). Based on this dicta, a few courts of appeals have allowed nonparties to prosecute appeals. See, e.g., Citibank Int'l v. Collier-Traino, Inc., 809 F.2d 1438, 1441 (9th Cir. 1987) (citing other Ninth Circuit cases as well); Martin-Trigona v. Shiff, 702 F.2d 380, 385-386 (2d Cir. 1983) (citing other Second Circuit cases as well); but see United States v. LTV Corp., 746 F.2d at 53-55 (no non-party appeals allowed). The court below similarly suggested that some such exceptions to the rule against nonparty appeals might exist, but found "none is relevant to the present matter" (Pet. App. A67). Although circumstances we have not been able to envisage may suggest a contrary conclusion, on the basis of our research and reflection, we are unable to understand either the source of or the need for any such exceptions. The Federal Rules of Appellate Procedure are unambiguous concerning who may file an appeal. Rule 3(c) clearly states that "(t)he notice of appeal shall specify the party or parties taking the appeal * * * " (Fed. R. App. P. 3(c) (emphasis added)). This "clear and simple rule" admits no exceptions (Moten v. Bricklayers Int'l Union, 543 F.2d 224, 227 (D.C. Cir. 1976)). Moreover, as noted earlier (see pages 11-26, supra), persons aggrieved by conduct resulting from a judgment or consent decree to which they are not party may assert their claims in separate, collateral actions. Accord, Firefighters v. Cleveland, slip op. 26-27; W.R. Grace & Co. v. Rubber Workers, 461 U.S. at 770-772. Indeed, if they wish to file an appeal from the original judgment, they may file a motion for post-judgment intervention and, of course, appeal the denial of any such motion. Accord, United Airlines, Inc. v. McDonald, 432 U.S. 385, 395 (1977); United States v. LTV Corp., 746 F.2d at 54 n.9; In re Proceedings Before the Federal Grand Jury, 643 F.2d 641, 643 (9th Cir. 1981). Because nonparty appeals are without either apparent authority or necessity, and because substantial consitutional and prudential reasons weigh against nonparty appeals (see Bender v. Williamsport Area School Dist., 475 U.S. at 543-545; United States v. Seigel, 168 F.2d at 146), judicially crafted exceptions to the rule against nonparty appeals should be resisted. /16/ In any event, except for the court below, /17/ those courts which have allowed nonparty appeals have done so only where the nonparties have actively participated in the district court and the equities strongly favor allowing an appeal to go forward. They have considered such factors as whether the district court invited the nonparty to participate in the litigation, whether the nonparty attempted to intervene, the extent to which the nonparty did in fact participate, and the extent to which the district court's judgment has affected the nonparty's interests. See Citibank Int'l v. Collier-Traino, Inc., 809 F.2d at 1441; Bank of America v. M/V Executive, 797 F.2d 772, 774 (9th Cir. 1986); Martin-Trigona v. Shiff, 702 F.2d 380, 385-386 (2d Cir. 1983); SEC v. Lincoln Thrift Ass'n, 577 F.2d 600, 603 (9th Cir. 1978). Here, the district court did not invite the Costello petitioners to participate as parties in the proceedings, and the Costello petitioners made no attempt to participate in the consent decree negotiations or to intervene before or after the entry of the consent decree. See Pet. App. A76-A78. Their participation was limited to the submission of written and oral objections concerning the entry of the final consent order and, even here, they submitted "no affidavits or other sworn allegations describing their individual status as police officers or as candidates for sergeant" (id. at A77). Accordingly, there is no basis upon which to evaluate the effect of the district court's judgment on the Costello petitioners' interests. Thus, the equities must be held to weigh against their request for a nonparty appeal. CONCLUSION The judgment of the court of appeals should be affirmed in part, reversed in part, and remanded for further proceedings consistent with the position advanced herein. Respectfully submitted, CHARLES FRIED Solicitor General WM. BRADFORD REYNOLDS Assistant Attorney General DONALD B. AYER Deputy Solicitor General ROGER CLEGG Deputy Assistant Attorney General GLEN D. NAGER Assistant to the Solicitor General DAVID K. FLYNN DENNIS J. DIMSEY Attorneys JULY 1987 /1/ The Costello petitioners include all of the plaintiffs in the Marino litigation (Pet. 15). /2/ The Schneider intervenors also filed a notice of appeal, but subsequently withdrew it (Pet. App. A65-A66). /3/ The decree defines "New York City defendants" to include "the City of New York, the New York City Police Department, the New York City Department of Personnel, and all officers, employees or agents, whether elected or appointed, of the City of New York, but not including the Hispanic Society plaintiffs, the Guardians Association plaintiffs, the intervenor defendants or any individuals or groups represented by the Hispanic Society plaintiffs, the Guardians Association plaintiffs or (the) intervenor defendants" (J.A. 65-66). The Costello petitioners contended that, because they are police officers employed by the City of New York, they are included among the class of "New York City defendants" (Pet. App. A69). /4/ The Marino petitioners' filed their complaint on December 30, 1985. See Pet. App. A7. The parties to the Hispanic Society and Guardians Association litigation submitted their proposed consent decree to the court on February 7, 1986. See id. at A89. The court approved and entered that decree on June 16, 1986. See id. at A7. /5/ A fundamental corollary to this basic due process principle is that a judgment should be binding only on those persons who are subject to the jurisdiction of the court and who have sufficient notice of the litigation in which a judgment is entered. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) ("(a)n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections"); Consumers Union, Inc. v. Consumer Products Safety Comm'n, 590 F.2d 1209, 1222 (D.C. Cir. 1978), rev'd on other grounds sub nom. GTE Sylvania, Inc. v. Consumers Union, Inc., 445 U.S. 375 (1980). The rule against preclusion of nonparties advances this corollary proposition, since a court can rest assured that the parties are subject to its jurisdiction and have sufficient notice of the litigation. See Comment, Collateral Attacks on Employment Discrimination Consent Decrees, 53 U. Chi. L. Rev. 147, 154-165 (1986). /6/ Pursuant to local rule, the defendants in the Marino litigation did move to have the action against them transferred to the same judge that was handling the Hispanic Society and Guardians Association litigation. But we are not aware of any motion by those defendants or by any other person to have the Marino litigation consolidated with the Hispanic Society and Guardians Association litigation. /7/ Of course, as the court below noted (Pet. App. A9), "Congress (has) expressed a strong preference for encouraging voluntary settlement of employment discrimination claims" (Carson v. American Brands, Inc., 450 U.S. 79, 88 n.14 (1981)). But, as explained at pages 21-24, infra, allowing collateral attacks on Title VII consent decrees will not determine this policy. In any event, neither the provisions which underlie this policy nor the policy itself expressly forecloses successive lawsuits by nonparticipants in Title VII litigation. This Court has apparently so held. See Firefighters v. Cleveland, No. 84-1999 (July 2, 1986), slip op. 26-27; W.R. Grace & Co. v. Rubber Workers, 461 U.S. 318, 332 (1980); see also Firefighters v. Stotts, 467 U.S. 561, 588 n.3 (1984) (O'Connor, J., concurring) ("if innocent employees are to be required to make any sacrifices in (a Title VII) consent decree, they must be represented and have had full participation rights in the negotiation process"). Title VII does authorize the Attorney General and the Equal Employment Opportunity Commission to initiate lawsuits on behalf of aggrieved individuals and, in such cases, gives the aggrieved individuals an absolute right of intervention. See 42 U.S.C. 2000e-5(f)(1). Some courts have therefore held that the statutory scheme precludes these aggrieved individuals from initiating successive litigation once the government's litigation has concluded. See, e.g., Adams v. Proctor & Gamble Mfg., 697 F.2d 582 (4th Cir. 1983) (en banc), cert. denied, 465 U.S. 1041 (1984); Jones v. Bell Helicopter Co., 614 F.2d 1389 (5th Cir. 1980); McClain v. Wagner Electric Corp., 550 F.2d 1115 (8th Cir. 1977). Whether these decisions are correct or not, they make clear that Title VII contains no provision authorizing a private litigant to initiate an action on behalf of another individual and thereby to preclude that other individual from bringing an action on his own behalf at the time and place of his own choosing (absent formal class certification procedures). Cf. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47 (1974) ("(t)here is no suggestion in the statutory scheme that a prior arbitral decision either forecloses an individual's right to sue or divests federal courts of jurisdiction"). /8/ See Fed. R. Civ. P. 24(a) (intervention as of right) ("(u)pon timely application anyone shall be permitted to intervene"); Fed. R. Civ. P. 24(b) (permissive intervention) ("(u)pon timely application anyone may be permitted to intervene"). See also Chase Nat'l Bank v. City of Norwalk, 291 U.S. 431, 441 (1934) ("The law does not impose upon any person absolutely entitled to a hearing the burden of voluntary intervention in a suit to which he is a stranger. * * * Unless duly summoned to appear in a legal proceeding, a person not privy may rest assured that a judgment recovered therein will not affect his legal rights."); accord, Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 593 (1974); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969); Gratiot County State Bank v. Johnson, 249 U.S. 246, 249-250 (1919). But cf. Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 115 (1968) (suggesting in dicta that a nonparty who "ha(s) purposely bypassed an adequately opportunity to intervene" might be barred from relitigating an issue). /9/ Rule 19(a) provides (emphasis added) that (a) person who is subject to service of process and whose joinder will not deprive the court of jurisdiction * * * shall be joined as a party in the action if (1) in his absence complete relief cannot be accord among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action. /10/ Rule 19(b) provides that (i)f a person * * * cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. /11/ Where such inconsistent or contradictory judgments arise, well-established procedures are available to ensure that the person subject to those judgments does not place himself in contempt of either court's judgment. The person may, of course, seek reversal of the second judgment on appeal. And, if unsuccessful on appeal, the person will have an appropriate ground upon which to seek relief from the court entering the first judgment. See Fed. R. Civ. P. 60; see also United States v. Jefferson County, 720 F.2d 1511, 1517-1519 (11th Cir. 1983). /12/ See also Firefighters v. Stotts, 467 U.S. 561, 589 n.4 (1984) (O'Connor, J., concurring); Franks v. Bowman Transportation Co., 424 U.S. 747, 787-799 (1976) (Powell, J., concurring in part and dissenting in part); Johnson v. Transportation Agency, No. 85-1129 (Mar. 25, 1987), slip op. 19-21 (Scalia, J., dissenting); Firefighters v. Cleveland, slip op. 3-4 (White, J., dissenting); Bushey v. New York State Civil Service Comm'n, 469 U.S. 1117, 1120-1121 (1985) (Rehnquist, J., dissenting from denial of certiorari). /13/ Indeed, since the court below also suggested that the Marino petitioners should have intervened in the Hispanic Society and Guardians Association litigation (Pet. App. A12), this statement makes little sense at all. The parties' incentive to settle the Hispanic Society and Guardians Association litigation would have been similarly affected had the Marino petitioners intervened there. The parties' incentive to settle would be increased, if at all, only if the Marino petitioners had no means for challenging any settlement that was reached in the Hispanic Society and Guardians Association litigations. /14/ See also Firefighters v. Stotts, 467 U.S. at 588 n.3 (O'Connor, J., concurring) ("if innocent employees are to be required to make any sacrifices in the final consent decree, they must be represented and have had full participation rights in the negotiation process"); id. at 589 n.4 ("(t)he policy favoring voluntary settlement does not, of course, countenance unlawful discrimination against existing employees or applicants"). /15/ Moreover, even where intervention is held timely, the interested third-persons are only allowed to voice their objections to the "reasonableness" of the decree. See, e.g., Kirkland v. New York State Dep't of Correction Services, 711 F.2d 1117, 1129 (2d Cir. 1983). This limited right of allocution before judgment is not the full and fair opportunity to be heard that due process requires that a person ultimately receive -- as this Court has said. See Firefighters v. Cleveland, slip op. 26-27. /16/ We note that when it intimated that there may be exceptions to the rule against nonparty appeals, the Court apparently was under the impression that orders denying motions to intervene were unappealable. See United States ex rel. Louisiana v. Jack, 244 U.S. at 402; Ex parte Leaf Tobacco Bd. of Trade, 222 U.S. at 581; Ex parte Cutting, 94 U.S. at 22. That clearly is no longer the case. See United Airlines, Inc. v. McDonald, 432 U.S. at 395. /17/ The exception articulated by the court below would all but swallow the rule against nonparty appeals and must be rejected. Accord, United States v. LTV Corp., 746 F.2d at 53-54. Almost any person with an interest in intervening could show that he or she is privy to the record and "has an interest that is affected by the trial court's judgment" (Pet. App. A67).