U.S. Supreme Court Martin v. Wilks, 490
U.S. 755 (1989) Martin v. Wilks No. 87-1614 Argued January 18,
1989 Decided June 12, 1989 490
U.S. 755 ast|>* 490
U.S. 755 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE ELEVENTH
CIRCUIT Syllabus Black individuals and a branch of the National Association for
the Advancement of Colored People brought actions in Federal
District Court against the city of Birmingham, Alabama, and the
Jefferson County Personnel Board (Board), alleging that the
defendants had engaged in racially discriminatory hiring and
promotion practices in violation of Title VII of the Civil Rights
Act of 1964 and other federal law. Consent decrees were eventually
entered that included goals for hiring blacks as firefighters and
for promoting them. Respondent white firefighters subsequently
brought suit in the District Court against the city and the Board,
alleging that, because of their race, they were being denied
promotions in favor of less qualified blacks in violation of
federal law. They argued that the city and the Board were making
promotion decisions on the basis of race in reliance on the consent
decrees, and that those decisions constituted impermissible racial
discrimination. After trial, the District Court granted the
defendants' motion to dismiss. It held that respondents were
precluded from challenging employment decisions taken pursuant to
the consent decrees, even though they had not been parties to the
proceedings in which the decrees were entered. The Court of Appeals
reversed, rejecting the "impermissible collateral attack" doctrine
that immunizes parties to a consent decree from discrimination
charges by nonparties for actions taken pursuant to the decree. Held: Respondents are not precluded from challenging
the employment decisions taken pursuant to the consent decrees. Pp. 490 U. S.
761 -769.

															(a) "[O]ne is not bound by a judgment in personam in a
litigation in which he is not designated as a party or to which he
has not been made a party by service of process." Hansberry v.
Lee, 311 U. S. 32 , 311 U. S. 40 .
Pp. 490 U. S.
761 -762.

															(b) Under ordinary application of the Federal Rules of Civil
Procedure, a party seeking a judgment binding on another cannot
obligate that person to intervene; he must be joined. Rule 24,
governing intervention, is cast in permissive terms. Rule 19(a)
provides for mandatory Page 490 U. S. 756 joinder in circumstances where a judgment rendered in the
absence of a person may "leave . . . persons already parties
subject to a substantial risk of incurring . . . inconsistent
allegations," and Rule 19(b) sets forth the factors to be
considered by a court in deciding whether to allow an action to
proceed in the absence of an interested party. Joinder as a party,
rather than knowledge of a lawsuit and an opportunity to intervene,
is the method by which potential parties are subjected to the
jurisdiction of the court and bound by a judgment or decree. The
linchpin of the "impermissible collateral attack" doctrine -- the
attribution of preclusive effect to a failure to intervene -- is
inconsistent with Rules 19 and 24. Pp. 490 U. S.
763 -765.

															(c) Neither Penn-Central Merger and N & W Inclusion
Cases, 389 U. S. 486 , nor Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U. S. 102 , is
authority for precluding respondents from challenging the actions
taken under the consent decrees. Pp. 490 U. S.
765 -766.

															(d) Even if there were some merit to the argument that the need
to join affected parties would be burdensome and ultimately
discouraging to civil rights litigation, acceptance of that
argument would require a rewriting, rather than an interpretation
of, the relevant Federal Rules. In any event, the difficulties in
identifying those who would be adversely affected by a decree arise
from the nature of the relief sought, and not because of any choice
between mandatory intervention and joinder. Plaintiffs who seek the
aid of courts to alter employment policies, or the employer who
might be subject to conflicting decrees, are best able to bear the
burden of designating those who would be adversely affected if
plaintiffs prevail. The alternative urged here does not eliminate
the need for, or difficulty of, identifying persons who should be
included in a lawsuit. It merely shifts that responsibility to less
able shoulders. The system of joinder called for by the Federal
Rules is not likely to produce more relitigation of issues than a
converse rule, and best serves the interests involved in the run of
litigated cases, including cases like the present one. Pp. 490 U. S.
766 -768.

															(e) With respect to the argument that the congressional policy
favoring voluntary settlement of employment discrimination claims
supports the "impermissible collateral attack" doctrine, it is
essential to note what is meant by a "voluntary settlement." A
voluntary settlement in the form of a consent decree between one
group of employees and their employer cannot possibly "settle,"
voluntarily or otherwise, the conflicting claims of another group
of employees who do not join in the agreement. Insofar as it may be
easier to settle claims among a disparate group of affected persons
if they are all before the court, joinder accomplishes Page 490 U. S. 757 that result as well as would a regime of mandatory intervention.
P. 490 U. S.
768 .

															833 F.2d 1492, affirmed.

															REHNQUIST, C.J., delivered the opinion of the Court, in which
WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. STEVENS, J.,
filed a dissenting opinion, in which BRENNAN, MARSHALL, and
BLACKMUN, JJ., joined, post, p. 490 U. S.
769 . Page 490 U. S. 758 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

															A group of white firefighters sued the city of Birmingham,
Alabama (City), and the Jefferson County Personnel Board (Board)
alleging that they were being denied promotions in favor of less
qualified black firefighters. They claimed that the City and the
Board were making promotion decisions on the basis of race in
reliance on certain consent decrees, and that these decisions
constituted impermissible racial discrimination in violation of the
Constitution and federal statute. The District Court held that the
white firefighters were precluded from challenging employment
decisions taken pursuant to the decrees, even though these
firefighters had not been parties to the proceedings in which the
decrees were Page 490 U. S. 759 entered. We think this holding contravenes the general rule that
a person cannot be deprived of his legal rights in a proceeding to
which he is not a party.

															The litigation in which the consent decrees were entered began
in 1974, when the Ensley Branch of the National Association for the
Advancement of Colored People and seven black individuals filed
separate class action complaints against the City and the Board.
They alleged that both had engaged in racially discriminatory
hiring and promotion practices in various public service jobs in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq., and other federal law. After a bench trial
on some issues, but before judgment, the parties entered into two
consent decrees, one between the black individuals and the City and
the other between them and the Board. These proposed decrees set
forth an extensive remedial scheme, including long-term and interim
annual goals for the hiring of blacks as firefighters. The decrees
also provided for goals for promotion of blacks within the fire
department.

															The District Court entered an order provisionally approving the
decrees and directing publication of notice of the upcoming
fairness hearings. 3 App. 694-696. Notice of the hearings, with a
reference to the general nature of the decrees, was published in
two local newspapers. At that hearing, the Birmingham Firefighters
Association (BFA) appeared and filed objections as amicus
curiae. After the hearing, but before final approval of the
decrees, the BFA and two of its members also moved to intervene on
the ground that the decrees would adversely affect their rights.
The District Court denied the motions as untimely, and approved the
decrees. United States v. Jefferson County, 28 FEP Cases
1834 (ND Ala.1981). Seven white firefighters, all members of the
BFA, then filed a complaint against the City and the Board seeking
injunctive relief against enforcement of the decrees. The seven
argued that the decrees Page 490 U. S. 760 would operate to illegally discriminate against them; the
District Court denied relief. App. to Pet. for Cert. 37a.

															Both the denial of intervention and the denial of injunctive
relief were affirmed on appeal. United States v. Jefferson
County, 720 F.2d 1511 (CA11 1983). The District Court had not
abused its discretion in refusing to let the BFA intervene, thought
the Eleventh Circuit, in part because the firefighters could
"institut[e] an independent Title VII suit, asserting specific
violations of their rights." Id. at 1518. And, for the
same reason, petitioners had not adequately shown the potential for
irreparable harm from the operation of the decrees necessary to
obtain injunctive relief. Id. at 1520.

															A new group of white firefighters, the Wilks respondents, then
brought suit against the City and the Board in District Court. They
too alleged that, because of their race, they were being denied
promotions in favor of less qualified blacks in violation of
federal law. The Board and the City admitted to making
race-conscious employment decisions, but argued that the decisions
were unassailable because they were made pursuant to the consent
decrees. A group of black individuals, the Martin petitioners, were
allowed to intervene in their individual capacities to defend the
decrees.

															The defendants moved to dismiss the reverse discrimination cases
as impermissible collateral attacks on the consent decrees. The
District Court denied the motions, ruling that the decrees would
provide a defense to claims of discrimination for employment
decisions "mandated" by the decrees, leaving the principal issue
for trial whether the challenged promotions were indeed required by
the decrees. App. 237-239, 250. After trial, the District Court
granted the motion to dismiss. App. to Pet. for Cert. 67a. The
court concluded that,

															"if in fact the City was required to [make promotions of blacks]
by the consent decree, then they would not be guilty of [illegal]
racial discrimination"

															and that the defendants had "establish[ed] that the promotions
of the black individuals Page 490 U. S. 761 . . . were in fact required by the terms of the consent decree." Id. at 28a.

															On appeal, the Eleventh Circuit reversed. It held that,

															"[b]ecause . . . [the Wilks respondents] were neither parties
nor privies to the consent decrees, . . . their independent claims
of unlawful discrimination are not precluded." In re Birmingham Reverse Discrimination Employment
Litigation, 833 F.2d 1492, 1498 (1987). The court explicitly
rejected the doctrine of "impermissible collateral attack" espoused
by other Courts of Appeals to immunize parties to a consent decree
from charges of discrimination by nonparties for actions taken
pursuant to the decree. Ibid. Although it recognized a
"strong public policy in favor of voluntary affirmative action
plans," the panel acknowledged that this interest

															"must yield to the policy against requiring third parties to
submit to bargains in which their interests were either ignored or
sacrificed." Ibid. The court remanded the case for trial of the
discrimination claims, suggesting that the operative law for
judging the consent decrees was that governing voluntary
affirmative action plans. Id. at 1497. [ Footnote 1 ]

															We granted certiorari, 487 U.S. 1204 (1988), and now affirm the
Eleventh Circuit's judgment. All agree that

															"[i]t is a principle of general application in anglo-American
jurisprudence that one is not bound by a judgment in
personam in a litigation in which he is not designated as a
party or to which he has not been made a party by service of
process." Hansberry v. Lee, 311 U. S. 32 , 311 U. S. 40 (1940). See, e.g., Page 490 U. S. 762 Parklane Hosiery Co. v. Shore, 439 U.
S. 322 , 439 U. S. 327 ,
n. 7 (1979). See, e.g., Blonder-Tongue Laboratories, Inc. v.
University Foundation, 402 U. S. 313 , 402 U. S.
328 -329 (1971); Zenith Radio Corp. v. Hazeltine
Research, Inc., 395 U. S. 100 , 395 U. S. 110 (1969). This rule is part of our "deep-rooted historic tradition
that everyone should have his own day in court." 18 C. Wright, A.
Miller, & E. Cooper, Federal Practice and Procedure § 4449, p.
417 (1981) (18 Wright). A judgment or decree among parties to a
lawsuit resolves issues as among them, but it does not conclude the
rights of strangers to those proceedings. [ Footnote 2 ]

															Petitioners argue that, because respondents failed to timely
intervene in the initial proceedings, their current challenge to
actions taken under the consent decree constitutes an impermissible
"collateral attack." They argue that respondents were aware that
the underlying suit might affect them, and if they chose to pass up
an opportunity to intervene, they should not be permitted to later
litigate the issues in a new action. The position has sufficient
appeal to have commanded the approval of the great majority of the
Federal Courts of Appeals, [ Footnote 3 ] but we agree with the contrary view
expressed Page 490 U. S. 763 by the Court of Appeals for the Eleventh Circuit in this
case.

															We begin with the words of Justice Brandeis in Chase
National Bank v. Norwalk, 291 U. S. 431 (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 a privy may rest assured that a judgment
recovered therein will not affect his legal rights." Id. at 291 U. S. 441 .
While these words were written before the adoption of the Federal
Rules of Civil Procedure, we think the Rules incorporate the same
principle; a party seeking a judgment binding on another cannot
obligate that person to intervene; he must be joined. See
Hazeltine, supra, at 395 U. S. 110 (judgment against Hazeltine vacated because it was not named as a
party or served, even though, as the parent corporation of one of
the parties, it clearly knew of the claim against it and had made a
special appearance to contest jurisdiction). Against the background
of permissive intervention set forth in Chase National
Bank, the drafters cast Rule 24, governing intervention, in
permissive terms. See Fed.Rule Civ.Proc. 24(a)
(intervention as of right) ("Upon timely application anyone shall
be permitted to intervene"); Fed.Rule Page 490 U. S. 764 Civ.Proc. 24(b) (permissive intervention) ("Upon timely
application anyone may be permitted to intervene"). They determined
that the concern for finality and completeness of judgments would
be "better [served] by mandatory joinder procedures." 18 Wright §
4452, p. 453. Accordingly, Rule 19(a) provides for mandatory
joinder in circumstances where a judgment rendered in the absence
of a person may "leave . . . persons already parties subject to a
substantial risk of incurring . . . inconsistent obligations. . .
." [ Footnote 4 ] Rule 19(b) sets
forth the factors to be considered by a court in deciding whether
to allow an action to proceed in the absence of an interested
party. [ Footnote 5 ] Page 490 U. S. 765 Joinder as a party, rather than knowledge of a lawsuit and an
opportunity to intervene, is the method by which potential parties
are subjected to the jurisdiction of the court and bound by a
judgment or decree. [ Footnote
6 ] The parties to a lawsuit presumably know better than anyone
else the nature and scope of relief sought in the action, and at
whose expense such relief might be granted. It makes sense,
therefore, to place on them a burden of bringing in additional
parties where such a step is indicated, rather than placing on
potential additional parties a duty to intervene when they acquire
knowledge of the lawsuit. The linchpin of the "impermissible
collateral attack" doctrine -- the attribution of preclusive effect
to a failure to intervene -- is therefore quite inconsistent with
Rule 19 and Rule 24.

															Petitioners argue that our decisions in Penn-Central Merger
and N & W Inclusion Cases, 389 U.
S. 486 (1968), and Provident Tradesmens Bank &
Trust Co. v. Patterson, 390 U. S. 102 (1968) suggest an opposite result. The Penn-Central litigation took place in a special statutory framework enacted by
Congress to allow reorganization of a huge railway system. Primary
jurisdiction was in the Interstate Commerce Commission, with very
restricted review in a statutory three-judge District Court. Review
proceedings Page 490 U. S. 766 were channeled to the District Court for the Southern District
of New York, and proceedings in other District Courts were stayed.
The District Court upheld the decision of the Interstate Commerce
Commission in both the merger and the inclusion proceedings, and
the parties to that proceeding appealed to this Court. Certain
Pennsylvania litigants had sued in the District Court for the
Middle District of Pennsylvania to set aside the Commission's
order, and this action was stayed pending the decision in the
District Court for the Southern District of New York. We held that
the borough of Moosic, one of the Pennsylvania litigants, could not
challenge the Commission's approval of the merger and inclusion in
the Pennsylvania District Court, pointing out the unusual
nationwide character of the action and saying

															"[i]n these circumstances, it would be senseless to permit
parties seeking to challenge the merger and the inclusion orders to
bring numerous suits in many different district courts."

															389 U.S. at 389 U. S. 505 ,
n. 4.

															We do not think that this holding in Penn-Central, based as it was upon the extraordinary nature of the proceedings
challenging the merger of giant railroads and not even mentioning
Rule 19 or Rule 24, affords a guide to the interpretation of the
rules relating to joinder and intervention in ordinary civil
actions in a district court.

															Petitioners also rely on our decision in Provident Bank,
supra, as authority for the view which they espouse. In that
case, we discussed Rule 19 shortly after parts of it had been
substantially revised, but we expressly left open the question
whether preclusive effect might be attributed to a failure to
intervene. 390 U.S. 390 U. S.
114 -115.

															Petitioners contend that a different result should be reached
because the need to join affected parties will be burdensome and
ultimately discouraging to civil rights litigation. Potential
adverse claimants may be numerous and difficult to identify; if
they are not joined, the possibility for inconsistent Page 490 U. S. 767 judgments exists. Judicial resources will be needlessly consumed
in relitigation of the same question.

															Even if we were wholly persuaded by these arguments as a matter
of policy, acceptance of them would require a rewriting, rather
than an interpretation, of the relevant Rules. But we are not
persuaded that their acceptance would lead to a more satisfactory
method of handling cases like this one. It must be remembered that
the alternatives are a duty to intervene based on knowledge, on the
one hand, and some form of joinder, as the Rules presently provide,
on the other. No one can seriously contend that an employer might
successfully defend against a Title VII claim by one group of
employees on the ground that its actions were required by an
earlier decree entered in a suit brought against it by another, if
the later group did not have adequate notice or knowledge of the
earlier suit.

															The difficulties petitioners foresee in identifying those who
could be adversely affected by a decree granting broad remedial
relief are undoubtedly present, but they arise from the nature of
the relief sought, and not because of any choice between mandatory
intervention and joinder. Rule 19's provisions for joining
interested parties are designed to accommodate the sort of
complexities that may arise from a decree affecting numerous people
in various ways. We doubt that a mandatory intervention rule would
be any less awkward. As mentioned, plaintiffs who seek the aid of
the courts to alter existing employment policies, or the employer
who might be subject to conflicting decrees, are best able to bear
the burden of designating those who would be adversely affected if
plaintiffs prevail; these parties will generally have a better
understanding of the scope of likely relief than employees who are
not named, but might be affected. Petitioners' alternative does not
eliminate the need for, or difficulty of, identifying persons who,
because of their interests, should be included in a lawsuit. It
merely shifts that responsibility to less able shoulders. Page 490 U. S. 768 Nor do we think that the system of joinder called for by the
Rules is likely to produce more relitigation of issues than the
converse rule. The breadth of a lawsuit and concomitant relief may
be at least partially shaped in advance through Rule 19 to avoid
needless clashes with future litigation. And even under a regime of
mandatory intervention, parties who did not have adequate knowledge
of the suit would relitigate issues. Additional questions about the
adequacy and timeliness of knowledge would inevitably crop up. We
think that the system of joinder presently contemplated by the
Rules best serves the many interests involved in the run of
litigated cases, including cases like the present one.

															Petitioners also urge that the congressional policy favoring
voluntary settlement of employment discrimination claims, referred
to in cases such as Carson v. American Brands, Inc., 450 U. S. 79 (1981), also supports the "impermissible collateral attack"
doctrine. But once again it is essential to note just what is meant
by "voluntary settlement." A voluntary settlement in the form of a
consent decree between one group of employees and their employer
cannot possibly "settle," voluntarily or otherwise, the conflicting
claims of another group of employees who do not join in the
agreement. This is true even if the second group of employees is a
party to the litigation:

															"[P]arties 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 therefore cannot dispose of the valid claims of
nonconsenting intervenors." Firefighters v. Cleveland, 478 U.
S. 501 , 478 U. S. 529 (1986).

															Insofar as the argument is bottomed on the idea that it may be
easier to settle claims among a disparate group of affected persons
if they are all before the court, joinder bids fair to accomplish
that result as well as a regime of mandatory intervention. Page 490 U. S. 769 For the foregoing reasons we affirm the decision of the Court of
Appeals for the Eleventh Circuit. That court remanded the case for
trial of the reverse discrimination claims. Birmingham Reverse
Discrimination, 833 F.2d at 1500-1502. Petitioners point to
language in the District Court's findings of fact and conclusions
of law which suggests that respondents will not prevail on the
merits. We agree with the view of the Court of Appeals, however,
that the proceedings in the District Court may have been affected
by the mistaken view that respondents' claims on the merits were
barred to the extent they were inconsistent with the consent
decree. Affirmed. * Together with No. 87-1639, Personnel Board of Jefferson
County, Alabama, et al. v. Wilks, et al., and No. 87-1668, Arrington et al. v. Wilks, et al., also on certiorari to
the same court.

															[ Footnote 1 ]

															Judge Anderson, dissenting,

															"agree[d] with the opinion for the court that these plaintiffs
[the Wilks respondents] were not parties to the prior litigation
which resulted in the consent decree, and that the instant
plaintiffs are not bound by the consent decree, and should be free
on remand to challenge the consent decree prospectively and test
its validity against the recent Supreme Court precedent." In re Birmingham Reverse Discrimination Employment
Litigation, 833 F.2d 1492, 1503 (CA11 1987). He distinguished,
however, between claims for prospective relief and claims for
backpay, the latter being barred, in his opinion, by the city's
good faith reliance on the decrees. Id. at 1502.

															[ Footnote 2 ]

															We have recognized an exception to the general rule when, in
certain limited circumstances, a person, although not a party, has
his interests adequately represented by someone with the same
interests who is a party. See Hansberry v. Lee, 311 U. S. 32 , 311 U. S. 41 -42
(1940) ("class" or "representative" suits); Fed.Rule Civ.Proc. 23
(same); Montana v. United States, 440 U.
S. 147 , 440 U. S.
154 -155 (1979) (control of litigation on behalf of one
of the parties in the litigation). Additionally, where a special
remedial scheme exists expressly foreclosing successive litigation
by nonlitigants, as for example in bankruptcy or probate, legal
proceedings may terminate preexisting rights if the scheme is
otherwise consistent with due process. See NLRB v. Bildisco
& Bildisco, 465 U. S. 513 , 465 U. S.
529 -530, n. 10 (1984) ("proof of claim must be presented
to the Bankruptcy Court . . . or be lost"); Tulsa Professional
Collection Services, Inc. v. Pope, 485 U.
S. 478 , (1988) (nonclaim statute terminating unsubmitted
claims against the estate). Neither of these exceptions, however,
applies in this case.

															[ Footnote 3 ]

															For a sampling of cases from the Circuits applying the
"impermissible collateral attack" rule or its functional
equivalent, see, e.g., Striff v. Mason, 849 F.2d 240, 245
(CA6 1988); Marino v. Ortiz, 806 F.2d 1144, 1146-1147 (CA2
1986), aff'd by an equally divided Court, 484 U.
S. 301 (1988); Thaggard v. Jackson, 687 F.2d
66, 68-69 (CA5 1982), cert. denied sub nom. Ashley v. City of
Jackson, 464 U. S. 900 (1983) (REHNQUIST, J., joined by BRENNAN, J., dissenting); Stotts v. Memphis Fire Dept., 679 F.2d 541, 558 (CA6
1982), rev'd on other grounds sub nom. Firefighters v.
Stotts, 467 U. S. 561 (1984); Dennison v. Los Angeles Dept. of Water &
Power, 658 F.2d 694, 696 (CA9 1981); Goins v. Bethlehem
Steel Corp., 657 F.2d 62, 64 (CA4 1981), cert.
denied, 455 U.S. 940 (1982); Society Hill Civic Assn. v.
Harris, 632 F.2d 1045, 1052 (CA3 1980). Apart from the instant
one, the only Circuit Court decision of which we are aware that
would generally allow collateral attacks on consent decrees by
nonparties is Dunn v. Carey, 808 F.2d 555, 559-560 (CA7
1986).

															[ Footnote 4 ]

															Rule 19(a) provides:

															"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 the person's absence
complete relief cannot be accorded among those already parties, or
(2) the person claims an interest relating to the subject of
the action and is so situated that the disposition of the
action in the person's absence may (i) as a practical matter
impair or impede the person's ability to protect that interest or
(ii) leave any of the persons already parties subject to a
substantial risk of incurring double, multiple, or otherwise
inconsistent obligations by reason of the claimed interest. If
the person has not been so joined, the court shall order that the
person be made a party. If the person should join as a plaintiff
but refuses to do so, the person may be made a defendant, or, in a
proper case, an involuntary plaintiff. If the joined party objects
to venue and joinder of that party would render the venue of the
action improper, that party shall be dismissed from the
action."

															(Emphasis added.)

															[ Footnote 5 ]

															Rule 19(b) provides:

															"If 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
the person 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."

															[ Footnote 6 ]

															The dissent argues, on the one hand, that respondents have not
been "bound" by the decree, but, rather, that they are only
suffering practical adverse effects from the consent decree. Post at 490 U. S.
770 -772. On the other hand, the dissent characterizes
respondents' suit not as an assertion of their own independent
rights, but as a collateral attack on the consent decrees which, it
is said, can only proceed on very limited grounds. Post at 490 U. S.
783 -787. Respondents in their suit have alleged that
they are being racially discriminated against by their employer in
violation of Title VII: either the fact that the disputed
employment decisions are being made pursuant to a consent decree is
a defense to respondents' Title VII claims or it is not. If it is a
defense to challenges to employment practices which would otherwise
violate Title VII, it is very difficult to see why respondents are
not being "bound" by the decree.

															JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL,
and JUSTICE BLACKMUN join, dissenting.

															As a matter of law, there is a vast difference between persons
who are actual parties to litigation and persons who merely have
the kind of interest that may, as a practical matter, be impaired
by the outcome of a case. Persons in the first category have a
right to participate in a trial and to appeal from an adverse
judgment; depending on whether they win or lose, their legal rights
may be enhanced or impaired. Persons in the latter category have a
right to intervene in the action in a timely fashion, [ Footnote 2/1 ] or they may be joined as
parties against their will. [ Footnote
2/2 ] But if they remain on the sidelines, they Page 490 U. S. 770 may be harmed, as a practical matter, even though their legal
rights are unaffected. [ Footnote
2/3 ] One of the disadvantages of sideline-sitting is that the
bystander has no right to appeal from a judgment, no matter how
harmful it may be.

															In these cases, the Court quite rightly concludes that the white
firefighters who brought the second series of Title VII cases could
not be deprived of their legal rights in the first series of cases
because they had neither intervened nor been joined as parties. See Firefighters v. Cleveland, 478 U.
S. 501 , 478 U. S.
529 -530 (1986); Parklane Hosiery Co. v. Shore, 439 U. S. 322 , 439 U. S. 327 ,
n. 7 (1979). The consent decrees obviously could not deprive them
of any contractual rights, such as seniority, cf. W. R. Grace
& Co. v. Rubber Workers, 461 U. S. 757 (1983), or accrued vacation pay, cf. Massachusetts v. Morash,
ante p. 107, or of any other legal rights, such as the right
to have their employer comply with federal statutes like Title VII, cf. Firefighters v. Cleveland, supra, at 529. [ Footnote 2/4 ] There is no reason, however,
why the consent decrees Page 490 U. S. 771 might not produce changes in conditions at the white
firefighters' place of employment that, as a practical matter, may
have a serious effect on their opportunities for employment or
promotion even though they are not bound by the decrees in any
legal sense. The fact that one of the effects of a decree is to
curtail the job opportunities of nonparties does not mean that the
nonparties have been deprived of legal rights or that they have
standing to appeal from that decree without becoming parties.

															Persons who have no right to appeal from a final judgment --
either because the time to appeal has elapsed or because they never
became parties to the case -- may nevertheless collaterally attack
a judgment on certain narrow grounds. If the court had no
jurisdiction over the subject matter, or if the judgment is the
product of corruption, duress, fraud, collusion, or mistake, under
limited circumstances it may be set aside in an appropriate
collateral proceeding. See Restatement (Second) of
Judgments §§ 69-72 (1982); Griffith v. Bank of New York, 147 F.2d 899, 901 (CA2) (Clark, J.), cert. denied, 325
U.S. 874 (1945). This rule not only applies to parties to the
original action, but also allows interested third parties
collaterally to attack judgments. [ Footnote 2/5 ] In both civil and criminal cases, however,
the Page 490 U. S. 772 grounds that may be invoked to support a collateral attack are
much more limited than those that may be asserted as error on
direct appeal. [ Footnote 2/6 ] Thus,
a person who can foresee that a lawsuit is likely to have a
practical impact on his interests may pay a heavy price if he
elects to sit on the sidelines instead of intervening and taking
the risk that his legal rights will be impaired.

															In these cases, there is no dispute about the fact that
respondents are not parties to the consent decrees. It follows as a
matter of course that they are not bound by those decrees.
[ Footnote 2/7 ] Those judgments
could not, and did not, deprive Page 490 U. S. 773 them of any legal rights. The judgments did, however, have a
practical impact on respondents' opportunities for advancement in
their profession. For that reason, respondents had standing to
challenge the validity of the decrees, but the grounds that they
may advance in support of a collateral challenge are much more
limited than would be allowed if they were parties prosecuting a
direct appeal. [ Footnote 2/8 ]

															The District Court's rulings in this case have been described
incorrectly by both the Court of Appeals and this Court. The Court
of Appeals repeatedly stated that the District Page 490 U. S. 774 Court had "in effect" held that the white firefighters were
"bound" by a decree to which they were not parties. [ Footnote 2/9 ] And this Court's opinion
seems to assume that the District Court had interpreted its consent
decrees in the earlier litigation as holding "that the white
firefighters were precluded from challenging employment decisions
taken pursuant to the decrees." Ante at 758. [ Footnote 2/10 ] It is important,
therefore, to make clear exactly what the District Court did hold
and why its judgment should be affirmed. I The litigation in which the consent decrees were entered was a
genuine adversary proceeding. In 1974 and 1975, two groups of
private parties and the United States brought three separate Title
VII actions against the city of Birmingham (City), the Personnel
Board of Jefferson County (Board), and various officials, [ Footnote 2/11 ] alleging discrimination in
hiring Page 490 U. S. 775 and promotion in several areas of employment, including the fire
department. After a full trial in 1976, the District Court found
that the defendants had violated Title VII, and that a test used to
screen job applicants was biased. App. 553. After a second trial in
1979 that focused on promotion practices -- but before the District
Court had rendered a decision -- the parties negotiated two consent
decrees, one with the City defendants and the other with the Board.
App. to Pet. for Cert. 122a (City decree), 202a (Board decree). The
United States is a party to both decrees. The District Court
provisionally approved the proposed decrees and directed that the
parties provide notice "to all interested persons informing them of
the general provisions of the Consent Decrees . . . and of their
right to file objections." App. 695. Approximately two months
later, the District Court conducted a fairness hearing, at which a
group of black employees objected to the decrees as inadequate and
a group of white firefighters -- represented in part by the
Birmingham Firefighters Association (BFA) -- opposed any
race-conscious relief. Id. at 727. The District Court
overruled both sets of objections and entered the decrees in
August, 1981. App. to Pet. for Cert. 236a.

															In its decision approving the consent decrees, the District
Court first noted "that there is no contention or suggestion that
the settlements are fraudulent or collusive." Id. at 238a.
The court then explained why it was satisfied that the affirmative
action goals and quotas set forth in the decrees were "well within
the limits upheld as permissible" in Steelworkers v.
Weber, 443 U. S. 193 (1979), and other cases. App. to Pet. for Cert. 240a-241a. It
pointed out that the decrees "do not preclude the hiring or
promotion of whites and males even for a temporary period of time," id. at 241a, and that the City's commitment to promote
blacks and whites to the position of fire lieutenant at the same
rate was temporary and was subject both to the availability of
qualified candidates Page 490 U. S. 776 and

															"to the caveat that the decree is not to be interpreted as
requiring the hiring or promotion of a person who is not qualified
or of a person who is demonstrably less qualified according to a
job-related selection procedure," id. at 242a. It further found that the record provided
"more than ample reason" to conclude that the City would eventually
be held liable for discrimination against blacks at high-level
positions in the fire and police departments. [ Footnote 2/12 ] Id. at 244a. Based on Page 490 U. S. 777 its understanding of the wrong committed, the court concluded
that the remedy embodied in the consent decrees was "reasonably
commensurate with the nature and extent of the indicated
discrimination." Ibid. Cf. Milliken v. Bradley, 418 U. S. 717 , 418 U. S. 744 (1974). The District Court then rejected other specific objections,
pointing out that the decrees would not impinge on any contractual
rights of the unions or their members. App. to Pet. for Cert. 245a.
Finally, after noting that it had fully considered the white
firefighters' objections to the settlement, it denied their motion
to intervene as untimely. Id. at 246a.

															Several months after the entry of the consent decrees, the Board
certified to the City that five black firefighters, as well as
eight whites, were qualified to fill six vacancies in the position
of lieutenant. See App. 81. A group of white firefighters
then filed suit against the City and Board challenging their policy
of "certifying candidates and making promotions on the basis of
race under the assumed protection of consent settlements." App. to
Pet. for Cert. 113a. The complaint alleged, in the alternative,
that the consent decrees were illegal and void, or that the
defendants were not properly implementing them. Id. at
113a-114a. The plaintiffs filed motions for a temporary restraining
order and a preliminary injunction. After an evidentiary hearing,
the District Court found that the plaintiffs' collateral attack on
the consent decrees was "without merit," and that four of the black
officers were qualified for promotion in accordance with the terms
of the decrees. App. 81-83. Accordingly, it denied the motions, id. at 83, 85-86, and, for the first time in its history,
the City had a black lieutenant in its fire department. Page 490 U. S. 778 The plaintiffs' appeal from that order was consolidated with the
appeal that had been previously taken from the order denying the
motion to intervene filed in the earlier litigation. The Court of
Appeals affirmed both orders. See United States v. Jefferson
County, 720 F.2d 1511 (CA11 1983). While that appeal was
pending, in September, 1983, the Wilks respondents filed a separate
action against petitioners. The Wilks complaint alleged
that petitioners were violating Title VII, but it did not contain
any challenge to the validity of the consent decrees. App. 130.
After various preliminary proceedings, the District Court
consolidated these cases, along with four other reverse
discrimination actions brought against petitioners, under the
caption In re: Birmingham Reverse Discrimination
Litigation. Id. at 218. In addition, over the course
of the litigation, the court allowed further parties to intervene.
[ Footnote 2/13 ]

															On February 18, 1985, the District Court ruled on the City's
motion for partial summary judgment and issued an opinion that,
among other things, explained its understanding of the relevance of
the consent decrees to the issues raised in the reverse
discrimination litigation. Id. at 277. After summarizing
the proceedings that led up to the entry of the consent decrees,
the District Court expressly

															"recognized that the consent decrees might not bar all claims of
'reverse discrimination.' since [the plaintiffs] had not been
parties to the prior suits. [ Footnote
2/14 ]" Id. at 279. The court then took a position Page 490 U. S. 779 with respect to the relevance of the consent decrees that
differed from that advocated by any of the parties. The plaintiffs
contended that the consent decrees, even if valid, did not
constitute a defense to their action, cf. W. R. Grace & Co.
v. Rubber Workers, 461 U. S. 757 (1983), and, in the alternative, that the decrees did not authorize
the promotion of black applicants ahead of higher scoring white
applicants, and thus did not justify race-conscious promotions.
App. 281-282. The City, on the other hand, contended that the
promotions were immunized from challenge if they were either
required or permitted by the terms of the decrees. Id. at
282. The District Court took the intermediate position that
promotions required by -- and made because of -- the decrees were
justified. [ Footnote 2/15 ]
However, it denied the City's summary judgment motion because it
raised factual issues requiring a trial. Id. at
288-289.

															In December, 1985, the court conducted a 5-day trial limited to
issues concerning promotions in the City's fire and engineering
departments. [ Footnote 2/16 ] At
that trial, respondents challenged Page 490 U. S. 780 the validity of the consent decrees; to meet that challenge,
petitioners introduced the records of the 1976 trial, the 1979
trial, and the fairness hearing conducted in 1981. Respondents also
tried to prove that they were demonstrably better qualified than
the black firefighters who had been promoted ahead of them. At the
conclusion of the trial, the District Court entered a partial final
judgment dismissing portions of the plaintiffs' complaints. The
judge explained his ruling in an oral opinion dictated from the
bench, supplemented by the adoption, with some changes, of detailed
findings and conclusions drafted by the prevailing parties. See App. to Pet. for Cert. 27a, 37a.

															In his oral statement, the judge adhered to the legal position
he had expressed in his February ruling. He stated:

															"The conclusions there expressed either explicitly or implicitly
were that under appropriate circumstances, a valid consent decree
appropriately limited can be the basis for a defense against a
charge of discrimination, even in the situation in which it is
clear that the defendant to the litigation did act in a racially
conscious manner."

															"In that February order, it was my view, as expressed then,
that, if the City of Birmingham made promotions of blacks to
positions as fire lieutenant, fire captain and civil engineer,
because the City believed it was required to do so by the consent
decree, and if in fact the City was required to do so by the
Consent Decree, then they would not be guilty of racial
discrimination, either Page 490 U. S. 781 under Title 7, Section 1981, 1983, or the 14th Amendment. That
remains my conclusion, given the state of the law as I understand
it." Id. at 77a. He then found as a matter of fact that
petitioners had not promoted any black officers who were not
qualified or who were demonstrably less qualified than the whites
who were not promoted. He thus rejected respondents' contention
that the City could not claim that it simply acted as required by
terms of the consent decree: [ Footnote 2/17 ]

															"In this case, under the evidence as presented here, I find
that, even if the burden of proof be placed on the defendants, they
have carried that proof and that burden of establishing that the
promotions of the black individuals in this case were in fact
required by the terms of the consent decree." Id. at 78a.

															The written conclusions of law that he adopted are less clear
than his oral opinion. He began by unequivocally stating: "The City
Decree is lawful." [ Footnote
2/18 ] Id. at 106a. He explained that,

															"under all the relevant case law of the Eleventh Circuit and the
Supreme Court, it is a proper remedial device, designed to overcome
the effects of prior, illegal discrimination by the City of
Birmingham. [ Footnote 2/19 ]" Id. at 106a-107a. Page 490 U. S. 782 In that same conclusion, however, he did state that "plaintiffs
cannot collaterally attack the Decree's validity." Id. at
106a. Yet, when read in context -- and particularly in light of the
court's finding that the decree was lawful under Eleventh Circuit
and Supreme Court precedent -- it is readily apparent that, at the
extreme, this was intended as an alternative holding. More likely,
it was an overstatement of the rule that collateral review is
narrower in scope than appellate review. In any event, and
regardless of one's reading of this lone sentence, it is absolutely
clear that the court did not hold that respondents were bound by
the decree. Nowhere in the District Court's lengthy findings of
fact and conclusions of law is there a single word suggesting that
respondents were bound by the consent decree or that the court
intended to treat them as though they had been actual parties to
that litigation, and not merely as persons whose interests, as a
practical matter, had been affected. Indeed, respondents, the Court
of Appeals, and the majority opinion all fail to draw attention to
any point in this case's long history at which the judge may have
given the impression that any nonparty was legally bound by the
consent decree. [ Footnote
2/20 ] Page 490 U. S. 783 II Regardless of whether the white firefighters were parties to the
decrees granting relief to their black coworkers, it would be quite
wrong to assume that they could never collaterally attack such a
decree. If a litigant has standing, he or she can always
collaterally attack a judgment for certain narrowly defined
defects. See, e.g., Klapprott v. United States, 335 U. S. 601 (1949); and cases cited in n 5, supra. See also Korematsu v. United
States, 584 F.
Supp. 1406 (ND Cal.1984) (granting writ of coram nobis vacating conviction based on Government concealment of critical
contradictory evidence in Korematsu v. United States, 323 U. S. 214 (1944)). On the other hand, a district court is not required to
retry a case -- or to sit in review of another court's judgment --
every time an interested nonparty asserts that some error that
might have been raised on direct appeal was committed. See nn. 6 and 8, supra. Such a broad allowance of collateral
review would destroy the integrity of litigated judgments, would
lead to an abundance of vexatious litigation, and would subvert the
interest in comity between courts. [ Footnote 2/21 ] Here, respondents have offered no
circumstance Page 490 U. S. 784 that might justify reopening the District Court's settled
judgment.

															The implementation of a consent decree affecting the interests
of a multitude of nonparties, and the reliance on that decree as a
defense to a charge of discrimination in hiring and promotion
decisions, raise a legitimate concern of collusion. No such
allegation, however, has been raised. Moreover, there is compelling
evidence that the decrees were not collusive. In its decision
approving the consent decrees over the objection of the BFA and
individual white firefighters, the District Court observed that
there had been "no contention or suggestion" that the decrees were
fraudulent or collusive. App. to Pet. for Cert. 238a. The record of
the fairness hearing was made part of the record of this
litigation, and this finding was not contradicted. More
significantly, the consent decrees were not negotiated until after
the 1976 trial and the court's finding that the City had
discriminated against black candidates for jobs as police officers
and firefighters, see App. 553, and until after the 1979
trial, at which substantial evidence was presented suggesting that
the City also discriminated against black candidates for promotion
in the fire department, see n. 12, supra. Like
the record of the 1981 fairness hearing, the records of both of
these prior proceedings Page 490 U. S. 785 were made part of the record in this case. Given this history,
the lack of any indication of collusion, and the District Court's
finding that

															"there is more than ample reason for . . . the City of
Birmingham to be concerned that [it] would be in time held liable
for discrimination against blacks at higher level positions in the
police and fire departments,"

															App. to Pet. for Cert. 244a, it is evident that the decree was a
product of genuine arm's-length negotiations.

															Nor can it be maintained that the consent judgment is subject to
reopening and further litigation because the relief it afforded was
so out of line with settled legal doctrine that it "was
transparently invalid or had only a frivolous pretense to
validity." [ Footnote 2/22 ] Walker v. Birmingham, 388 U. S. 307 , 388 U. S. 315 (1967) (suggesting that a contemner might be allowed to challenge
contempt citation on ground that underlying court order was
"transparently invalid"). To the contrary, the type of
race-conscious relief ordered in the consent decrees is entirely
consistent with this Court's approach to affirmative action. Given
a sufficient predicate of racial discrimination, neither the Equal
Protection Clause of the Fourteenth Amendment [ Footnote 2/23 ] nor Title VII of the Civil Rights
Act Page 490 U. S. 786 of 1964 [ Footnote 2/24 ] erects
a bar to affirmative action plans that benefit nonvictims and have
some adverse effect on nonwrongdoers. [ Footnote 2/25 ] As JUSTICE O'CONNOR observed in Wygant v. Page 490 U. S. 787 Jackson Bd. of Education, 476 U.
S. 267 (1986):

															"This remedial purpose need not be accompanied by
contemporaneous findings of actual discrimination to be accepted as
legitimate as long as the public actor has a firm basis for
believing that remedial action is required." Id. at 476 U. S. 286 (opinion concurring in part and concurring in judgment). Such a
belief was clearly justified in these cases. After conducting the
1976 trial and finding against the City, and after listening to the
five days of testimony in the 1979 trial, the judge was well
qualified to conclude that there was a sound basis for believing
that the City would likely have been found to have violated Title
VII if the action had proceeded to a litigated judgment. [ Footnote 2/26 ]

															Hence, there is no basis for collaterally attacking the judgment
as collusive, fraudulent, or transparently invalid. Moreover,
respondents do not claim -- nor has there been any showing of --
mistake, duress, or lack of jurisdiction. Instead, respondents are
left to argue that somewhat different relief would have been more
appropriate than the relief that was actually granted. Although
this sort of issue may provide the basis for a direct appeal, it
cannot, and should not, serve to open the door to relitigation of a
settled judgment. Page 490 U. S. 788 III The facts that respondents are not bound by the decree and that
they have no basis for a collateral attack, moreover, do not compel
the conclusion that the District Court should have treated the
decree as nonexistent for purposes of respondents' discrimination
suit. That the decree may not directly interfere with any of
respondents' legal rights does not mean that it may not affect the
factual setting in a way that negates respondents' claim. The fact
that a criminal suspect is not a party to the issuance of a search
warrant does not imply that the presence of a facially valid
warrant may not be taken as evidence that the police acted in good
faith. See Malley v. Briggs, 475 U.
S. 335 , 475 U. S.
344 -345 (1986); United States v. Leon, 468 U. S. 897 , 468 U. S.
921 -922, 468 U. S. 924 (1984); United States v. Ross, 456 U.
S. 798 , 456 U. S. 823 ,
n. 32 (1982). Similarly, the fact that an employer is acting under
court compulsion may be evidence that the employer is acting in
good faith and without discriminatory intent. Cf. Ashley v.
City of Jackson, 464 U. S. 900 , 903
(1983) (REHNQUIST, J., dissenting from denial of certiorari)
(suggesting that compliance with a consent decree "might be
relevant to a defense of good faith immunity"); Restatement
(Second) of Judgments § 76, Comment a, p. 217 (1982) ("If the
judgment is held to be not binding on the person against whom it is
invoked, it is then ignored in the determination of matters in
issue in the subsequent litigation, unless it is relevant for some
other purpose such as proving the good faith of a party who relied
on it"). Indeed, the threat of a contempt citation provides as good
a reason to act as most, if not all, other business justifications.
[ Footnote 2/27 ] Page 490 U. S. 789 After reviewing the evidence, the District Court found that the
City had in fact acted under compulsion of the consent decree. App.
to Pet. for Cert. 107a; App. 280. Based on this finding, the court
concluded that the City carried its burden of coming forward with a
legitimate business reason for its promotion policy, and,
accordingly, held that the promotion decisions were "not taken with
the requisite discriminatory intent" necessary to make out a claim
of disparate treatment under Title VII or the Equal Protection
Clause. App. to Pet. for Cert. 107a, citing United States v.
Jefferson County, 720 F.2d at 1518. For this reason, and not
because it thought that respondents were legally bound by the
consent decree, the court entered an order in favor of the City and
defendant-intervenors.

															Of course, in some contexts a plaintiff might be able to
demonstrate that reference to a consent decree is pretextual. See Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981). For example, a plaintiff might be able to show that the
consent decree was collusive, and that the defendants simply
obtained the court's rubber stamp on a private agreement that was
in no way related to the eradication of pervasive racial
discrimination. The plaintiff, alternatively, might be able to show
that the defendants were not bound to obey the consent decree
because the court that entered it was without jurisdiction. See United States v.
Mine Page 490 U. S. 790 Workers, 330 U. S. 258 , 330 U. S.
291 -294 (1947). Similarly, although more tenuous, a
plaintiff might argue that the parties to the consent judgment were
not bound because the order was "transparently invalid," and thus
unenforceable. [ Footnote 2/28 ] If
the defendants were as a result not bound to implement the
affirmative action program, then the plaintiff might be able to
show that the racial preference was not a product of the court
order.

															In a case such as this, however, in which there has been no
showing that the decree was collusive, fraudulent, transparently
invalid, or entered without jurisdiction, it would be
"unconscionable" to conclude that obedience to an order remedying a
Title VII violation could subject a defendant to additional
liability. Cf. Farmers v. WDAY, Inc., 360 U.
S. 525 , 360 U. S. 531 (1959). Rather, all of the reasons that support the Court's view
that a police officer should not generally be held liable when he
carries out the commands in a facially valid warrant apply with
added force to city officials, or indeed to private employers, who
obey the commands contained in a decree entered by a federal court.
[ Footnote 2/29 ] In fact, Equal
Employment Page 490 U. S. 791 Opportunity Commission regulations concur in this assessment.
They assert:

															"The Commission interprets Title VII to mean that actions taken
pursuant to the direction of a Court Order cannot give rise to
liability under Title VII."

															29 CFR § 1608.8 (1989). [ Footnote
2/30 ] Assuming that the District Court's findings of fact were
not clearly erroneous -- which of course is a matter that is not
before us -- it seems perfectly clear that its judgment should have
been affirmed. Any other conclusion would subject large employers
who seek to comply with the law by remedying past discrimination to
a never-ending stream of litigation and potential liability. It is
unfathomable that either Title VII or the Equal Protection Clause
demands such a counterproductive result. IV The predecessor to this litigation was brought to change a
pattern of hiring and promotion practices that had discriminated
against black citizens in Birmingham for decades. The white
respondents in this case are not responsible for that history of
discrimination, but they are nevertheless beneficiaries of the
discriminatory practices that the litigation was designed to
correct. Any remedy that seeks to create employment conditions that
would have obtained if there had been no violations of law will
necessarily have an adverse impact on whites, who must now share
their job and promotion opportunities Page 490 U. S. 792 with blacks. [ Footnote 2/31 ]
Just as white employees in the past were innocent beneficiaries of
illegal discriminatory practices, so is it inevitable that some of
the same white employees will be innocent victims who must share
some of the burdens resulting from the redress of the past
wrongs.

															There is nothing unusual about the fact that litigation between
adverse parties may, as a practical matter, seriously impair the
interests of third persons who elect to sit on the sidelines.
Indeed, in complex litigation, this Court has squarely held that a
sideline-sitter may be bound as firmly as an actual party if he had
adequate notice and a fair opportunity to intervene, and if the
judicial interest in finality is sufficiently strong. See
Penn-Central Merger and N & W Inclusion Cases, 389 U. S. 486 , 389 U. S.
505 -506 (1968). Cf. Bergh v. Washington, 535
F.2d 505, 507 (CA9), cert. denied, 429 U.S. 921 (1976); Safir v. Dole, 231 U.S.App.D.C. 63, 70-71, 718 F.2d 475,
482-83 (1983), cert. denied, 467 U.S. 1206 (1984); James
& Hazard § 11.31, pp. 651-652.

															There is no need, however, to go that far in order to agree with
the District Court's eminently sensible view that compliance with
the terms of a valid decree remedying violations of Title VII
cannot itself violate that statute or the Equal Protection Clause.
[ Footnote 2/32 ] The city of
Birmingham, in entering into Page 490 U. S. 793 and complying with this decree, has made a substantial step
toward the eradication of the long history of pervasive racial
discrimination that has plagued its fire department. The District
Court, after conducting a trial and carefully considering
respondents' arguments, concluded that this effort is lawful, and
should go forward. Because respondents have thus already had their
day in court and have failed to carry their burden, I would vacate
the judgment of the Court of Appeals and remand for further
proceedings consistent with this opinion.

															[ Footnote 2/1 ]

															Federal Rule of Civil Procedure 24(a) provides, in part:

															"Upon timely application anyone shall be permitted to intervene
in an action: . . . (2) when the applicant claims an interest
relating to the property or transaction which is the subject of the
action and the applicant is so situated that the disposition of the
action may as a practical matter impair or impede the applicant's
ability to protect that interest, unless the applicant's interest
is adequately represented by existing parties."

															[ Footnote 2/2 ]

															Federal Rule of Civil Procedure 19(a) provides, in part:

															"A person who is subject to service of process and whose joinder
will not deprive the court of jurisdiction over the subject matter
of the action shall be joined as a party in the action if . . . (2)
the person claims an interest relating to the subject of the action
and is so situated that the disposition of the action in the
person's absence may (i) as a practical matter impair or impede the
person's ability to protect that interest. . . ."

															[ Footnote 2/3 ] See Provident Tradesmens Bank & Trust Co. v.
Patterson, 390 U. S. 102 , 390 U. S. 110 (1968).

															[ Footnote 2/4 ]

															As CHIEF JUSTICE REHNQUIST has observed:

															"Suppose, for example, that the Government sues a private
corporation for alleged violations of the antitrust laws, and then
enters a consent decree. Surely, the existence of that decree does
not preclude a future suit by another corporation alleging that the
defendant company's conduct, even if authorized by the decree,
constitutes an antitrust violation. The nonparty has an independent
right to bring his own private antitrust action for treble damages
or for injunctive relief. See 2 P. Areeda & D. Turner,
Antitrust Law � 330, p. 143 (1978). Similarly, if an action
alleging unconstitutional prison conditions results in a consent
decree, a prisoner subsequently harmed by prison conditions is not
precluded from bringing suit on the mere plea that the conditions
are in accordance with the consent decree. Such compliance might be
relevant to a defense of good faith immunity, see Pet. for
Cert. in Bennett v. Williams, O.T. 1982, No. 82-1704, but
it would not suffice to block the suit altogether." Ashley v. City of Jackson, 464 U.
S. 900 , 902-903 (1983) (opinion dissenting from denial
of certiorari).

															In suggesting that compliance with a consent decree might be
relevant to a defense of good faith immunity, this passage
recognizes that neither due process nor the Rules of Civil
Procedure foreclose judicial recognition of a judgment that may
have a practical effect on the interests of a nonparty.

															[ Footnote 2/5 ] See F. James & G. Hazard, Civil Procedure § 12.15,
p. 681 (3d ed.1985) (hereinafter James & Hazard). Since at
least 1874, this Court has recognized that a third party may
collaterally attack a judgment if the original judgment was
obtained through fraud or collusion. In a case brought by an
assignee in bankruptcy seeking to recover property allegedly
transferred in fraud of the bankrupt's debtors, the Court
wrote:

															"Judgments of any court, it is sometimes said, may be impeached
by strangers to them for fraud or collusion, but the proposition as
stated is subject to certain limitations, as it is only those
strangers who, if the judgment is given full credit and effect,
would be prejudiced in regard to some preexisting right who are
permitted to set up such a defense. Defenses of the kind may be set
up by such strangers. Hence the rule that whenever a judgment or
decree is procured through the fraud of either of the parties, or
by the collusion of both, for the purpose of defrauding some third
person, such third person may escape from the injury thus attempted
by showing, even in a collateral proceeding, the fraud or collusion
by which the judgment was obtained." Michaels v.
Post , 21 Wall. 398, 88 U. S.
426 -427 (1874) (footnote omitted). See also Wells
Fargo & Co. v. Taylor, 254 U. S. 175 , 254 U. S. 184 (1920);1 A. Freeman, Judgments § 318, p. 634 (5th ed.1925).
Similarly, strangers to a decree are sometimes allowed to challenge
the decree by showing that the court was without jurisdiction. Id. at p. 633. But cf. Johnson v. Muelberger, 340 U. S. 581 (1951) (noting that, under Florida law, a child, seeking to protect
her interest in her father's estate, may not collaterally attack
her parents' divorce for want of jurisdiction). Of course, unlike
parties to a decree, the question of subject matter jurisdiction is
not res judicata as to interested third parties. Cf.
Insurance Corp. of Ireland v. Compagnie des Bauxites de
Guinee, 456 U. S. 694 , 456 U. S. 702 ,
n. 9 (1982).

															[ Footnote 2/6 ]

															We have long held that proceedings brought before a court
collaterally "are by no means subject to all the exceptions which
might be taken on a direct appeal." Thompson
v. Tolmie , 2 Pet. 157, 27 U. S. 162 (1829). See also Teague v. Lane, 489 U.
S. 288 , 489 U. S.
303 -310 (1989) (petition for writ of habeas corpus); Liljeberg v. Health Services Acquisition Corp., 486 U. S. 847 , 486 U. S.
863 -864 (1988) (Rule 60(b) motion); United States v.
Frady, 456 U. S. 152 , 456 U. S. 165 (1982) (§ 2255 motion); Ackermann v. United States, 340 U. S. 193 , 340 U. S.
197 -202 (1950) (Rule 60(b) motion); Sunal v.
Large, 332 U. S. 174 , 332 U. S.
177 -179 (1947) (petition for writ of habeas corpus).

															[ Footnote 2/7 ]

															As we held in Firefighters v. Cleveland, 478 U.
S. 501 , 478 U. S.
529 -530 (1986):

															"Of course, parties who choose to resolve litigation through
settlement may not dispose of the claims of a third party, and, a fortiori, may not impose duties or obligations on a
third party, without that party's agreement. A court's approval of
a consent decree between some of the parties therefore cannot
dispose of the valid claims of nonconsenting [individuals]. . . .
And, of course, a court may not enter a consent decree that imposes
obligations on a party that did not consent to the decree. See,
e.g., United States v. Ward Baking Co., 376 U. S.
327 (1964); Hughes v. United States, 342 U. S.
353 (1952); Ashley v. City of Jackson, 464 U.S.
at 902 (REHNQUIST, J., dissenting from denial of certiorari); 1B
Moore � 0.409[5], p. 326, n. 2. However, the consent decree entered
here does not bind Local 93 to do or not to do anything. It imposes
no legal duties or obligations on the Union at all; only the
parties to the decree can be held in contempt of court for failure
to comply with its terms. See United States v. Armour &
Co., 402 U.S. at 402 U. S. 676 -677."

															[ Footnote 2/8 ]

															The Eleventh Circuit, in a decision involving a previous attempt
by white firefighters to set aside the consent decrees at issue in
this litigation, itself observed:

															"There are . . . Limitations on the extent to which a nonparty
can undermine a prior judgment. A nonparty may not reopen the case
and relitigate the merits anew; neither may he destroy the validity
of the judgment between the parties." United States v. Jefferson County, 720 F.2d 1511, 1518
(1983).

															Professors James and Hazard describe the rule as follows:

															"Ordinarily, a nonparty has no legal interest in a judgment in
an action between others. Such a judgment does not determine the
nonparty's rights and obligations under the rules of res
judicata, and he may so assert if the judgment is relied upon
against him. But in some situations, one's interests, particularly
in one's own personal legal status or claims to property, may be
placed in practical jeopardy by a judgment between others. In such
circumstances, one may seek the aid of a court of equity, but
the grounds upon which one may rely are severely limited. The
general rule is that one must show either that the judgment was
void for lack of jurisdiction of the subject matter or that it was
the product of fraud directed at the petitioner."

															James & Hazard § 12.15, p. 681 (emphasis supplied)
(footnotes omitted).

															[ Footnote 2/9 ]

															The Court of Appeals wrote:

															"Both the City and the Board, however, denied that they had
violated Title VII or the equal protection clause. Both contended
that the plaintiffs were bound by the consent decrees, and that the
promotions were therefore lawful as a matter of law because they
had been made pursuant to those decrees." In re Birmingham Reverse Discrimination Employment
Litigation, 833 F.2d 1492, 1496 (CA11 1987).

															"Without expressly so stating, the district judge treated the
plaintiffs as if they were bound by the consent decrees and as if
they were alleging solely that the City had violated the City
decree." Ibid. "The court held that the plaintiffs -- both the United States
and the individual plaintiffs -- were bound by the consent
decrees." Id. at 1497.

															"In effect, the court treated the plaintiffs as if they were
parties to the City decree seeking an order to show cause why the
City should not be held in civil contempt for violating the terms
of the decree." Id. at 1497, n. 16.

															[ Footnote 2/10 ] See also ante at 490 U. S. 762 ,
where the Court suggests that the District Court held that its
consent decrees had "conclude[d] the rights of strangers to those
proceedings.

															(Footnote omitted.)

															[ Footnote 2/11 ]

															These parties, along with six black firefighters who were party
plaintiffs to the 1974-1975 litigation, are petitioners herein.

															[ Footnote 2/12 ]

															In approving the decree, the District Court expressed confidence
that the United States and the black firefighters brought suit in
good faith, and that there was a strong evidentiary basis for their
complaints. It observed:

															"The objectors treat this case as one in which discrimination on
the basis of race or sex has not been established. That is only
partially true, at least as it relates to positions in the police
and fire departments. This court at the first trial found -- and
the Fifth Circuit agreed -- that blacks applying for jobs as police
officers and firefighters were discriminated against by the tests
used by the Personnel Board to screen and rank applicants. The
evidence presented at the second trial established, at the .01
level of statistical significance, that blacks were adversely
affected by the exam used by the Personnel Board to screen and rank
applicants for the position of police sergeant. Since governmental
employers such as the City of Birmingham have been limited by state
law to selecting candidates from among those certified by the
Board, one would hardly be surprised to find that the process as a
whole has had an adverse effect upon blacks seeking employment as
Birmingham police officers, police sergeants, or firefighters --
regardless of whether or not there was any actual bias on the part
of selecting officials of the City. A natural consequence of
discrimination against blacks at entry-level positions in the
police and fire departments would be to limit their opportunities
for promotion to higher levels in the departments."

															"Employment statistics for Birmingham's police and fire
departments as of July 21, 1981, certainly lend support to the
claim made in this litigation against the City -- that,
notwithstanding this court's directions in 1977 with respect to
certifications by the Personnel Board for the entry-level police
officer and firefighters positions, and despite the City's adoption
of a 'fair hiring ordinance' and of affirmative action plans, the
effects of past discrimination against blacks persist. According to
those figures, 79 of the 480 police officers are black, 3 of the
131 police sergeants are black, and none of the 40 police
lieutenants and captains are black. In the fire department, 42 of
the 453 firefighters are black, and none of the 140 lieutenants,
captains, and battalion chiefs are black."

															App. to Pet. for Cert. 242a-243a. The evidence of discrimination
presented at the 1979 trial is described in greater detail in the
United States' 100-page post-trial brief, which is reprinted in the
Joint Appendix. See App. 594-693.

															[ Footnote 2/13 ]

															Among those allowed to intervene were seven black firefighters
who were parties to the consent decrees and who sought to defend
the decrees; the United States, which reversed course in the
litigation and aligned itself with the plaintiffs; and additional
white firefighters pressing individual reverse discrimination
claims.

															[ Footnote 2/14 ]

															During an earlier hearing, the District Court informed
counsel:

															"I do believe that the Court of Appeals said there is no per
se prohibition against an attack, an indirect attack, in any
event by a person whose rights may be affected during the
implementation or claims implementation of the decree. To the
extent the motions to dismiss or summary judgment take that
position, I think the Court of Appeals said, no, that is not the
law of this Circuit." Id. at 237.

															[ Footnote 2/15 ]

															The court indicated that, if the race-conscious promotions were
a product of the City's adherence to pending court orders
( i.e., the consent decrees), it could not be said that the
City acted with the requisite racially discriminatory intent. See id. at 280 ("[T]he court is persuaded that the
defendants can . . . defend these reverse discrimination claims if
they establish that the challenged promotions were made because of
the requirements of the consent decree"). See also Tr.
(May 14, 1984), reprinted in App. 237. In reaching this conclusion,
the District Court was well aware of the Court of Appeals' previous
suggestion that such a defense might be available:

															"'The consent decree would only become an issue if the defendant
attempted to justify its conduct by saying that it was mandated by
the consent decree. If this were the defense, the trial judge would
have to determine whether the defendant's action was mandated by
the decree, and, if so, whether that fact alone would relieve the
defendant of liability that would otherwise attach. This is,
indeed, a difficult question. . . . We should not, however,
preclude potentially wronged parties from raising such a question
merely because it is perplexing.'"

															App. 280-281, n. 6, quoting United States v. Jefferson
County, 720 F.2d at 1518-1519.

															[ Footnote 2/16 ]

															At the close of the plaintiffs' case, the District Court granted
the motion of the Board to dismiss the claims against it pursuant
to Federal Rule of Civil Procedure 41(b). The basis for the motion
was the fact that, even without regard to the consent decrees, the
plaintiffs had not proved a prima facie case against the
Board, which had done nothing more than provide the City with the
names of employees, both white and black, who were qualified for
promotion. There was no evidence that the Board's certification
process, or its testing procedures, adversely affected whites. I am
at a loss to understand why the Court of Appeals did not affirm the
judgment in favor of the Board.

															[ Footnote 2/17 ]

															Paragraph 2 of the City decree provides, in pertinent part:

															"Nothing herein shall be interpreted as requiring the City to .
. . promote a person who is not qualified . . . or promote a less
qualified person, in preference to a person who is demonstrably
better qualified based upon the results of a job related selection
procedure."

															App. to Pet. for Cert. 124a.

															[ Footnote 2/18 ]

															The District Court's opinion does not refer to the second
consent decree because the claims against the Board had been
dismissed at the end of the plaintiffs' case. See 490
U.S. 755 fn2/16|>n. 16, supra. [ Footnote 2/19 ]

															In support of this proposition, the court cited, inter
alia, our decision in Steelworkers v. Weber, 443 U. S. 193 (1979). We recently reaffirmed the Weber decision in Johnson v. Transportation Agency, Santa Clara County, 480 U. S. 616 (1987). See also Sheet Metal Workers v. EEOC, 478 U.
S. 421 (1986) (plurality opinion); id. at 478 U. S. 483 (Powell, J., concurring in part and concurring in judgment); id. at 478 U. S. 489 (O'CONNOR, J., concurring in part and dissenting in part); id. at 478 U. S. 499 (WHITE, J., dissenting) (all reaffirming that courts are vested
with discretion to award race-conscious relief).

															[ Footnote 2/20 ]

															In Provident Tradesmens Bank & Trust Co. v.
Patterson, 390 U.S. at 390 U. S. 114 ,
we expressly did not decide whether a litigant might

															"be bound by [a] previous decision because, although technically
a nonparty, he had purposely bypassed an adequate opportunity to
intervene." See Note, Preclusion of Absent Disputants to Compel
Intervention, 79 Colum.L.Rev. 1551 (1979) (arguing in favor of such
a rule of mandatory intervention); 7 C. Wright, A. Miller, & M.
Kane, Federal Practice and Procedure § 1608, p. 115, n. 33 (2d
ed.1986) (drawing a parallel between the mandatory intervention
rule and this Court's decision in Penn-Central Merger and N
& W Inclusion Cases, 389 U. S. 486 (1968)). Today, the Court answers this question, at least in the
limited context of the instant dispute, holding that

															"[j]oinder as a party [under Federal Rule of Civil Procedure
19], rather than knowledge of a lawsuit and an opportunity to
intervene [under Federal Rule of Civil Procedure 24], is the method
by which potential parties are subjected to the jurisdiction of the
court and bound by a judgment or decree." Ante at 490 U. S. 765 . See also ante at 490 U. S. 763 ("[A] party seeking a judgment binding on another cannot obligate
that person to intervene; he must be joined"). Because I conclude
that the District Court did not hold that respondents were bound by
the consent decrees, I do not reach this issue.

															[ Footnote 2/21 ]

															One leading commentator relies on the following poignant
language employed by the Virginia Supreme Court to explain the
significance of the doctrine limiting collateral attacks:

															"'It is one . . . which has been adopted in the interest of the
peace of society and the permanent security of titles. If, after
the rendition of a judgment by a court of competent jurisdiction,
and after the period has elapsed when it becomes irreversible for
error, another court may in another suit inquire into the
irregularities or errors in such judgment, there would be no end to
litigation and no fixed established rights. A judgment, though
unreversed and irreversible, would no longer be a final
adjudication of the rights of the litigants, but the starting point
from which a new litigation would spring up; acts of limitation
would become useless and nugatory; purchasers on the faith of
judicial process would find no protection; every right established
by a judgment would be insecure and uncertain; and a cloud would
rest upon every title.'"

															1 H. Black, Law of Judgments § 245, pp. 365-366 (2d ed.1902),
quoting Lancaster v. Wilson, 27 Gratt. 624, 629 (Va.
1876). In addition to undermining this interest in finality,
permitting collateral attacks also leads to the anomaly that courts
will, on occasion, be required to sit in review of judgments
entered by other courts of equal -- or even greater -- authority. Cf. ASARCO Inc. v. Kadish, ante, at 490 U. S.
622 -623; District of Columbia Court of Appeals v.
Feldman, 460 U. S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.
S. 413 , 263 U. S.
415 -416 (1923). The rule is also supported by the fact
that there is no assurance that a second round of litigation is
more likely than the first to reach a just result or obtain
uniformity in the law.

															[ Footnote 2/22 ]

															It was argued during the 1981 fairness hearing, in the first
complaint filed in this litigation, see App. to Pet. for
Cert. 113a, and in at least one of the subsequently filed
complaints, see App. 96, that race-conscious relief for
persons who are not proven victims of past discrimination is
absolutely prohibited by the Equal Protection Clause of the
Fourteenth Amendment and by Title VII of the Civil Rights Act of
1964. As I have pointed out, the Wilks complaint did not
challenge the validity of the decrees. See App.
135-137.

															[ Footnote 2/23 ] See Wygant v. Jackson Bd. of Education, 476 U.
S. 267 , 476 U. S. 286 (1986) (O'CONNOR, J., concurring in part and concurring in
judgment) ("The Court is in agreement that, whatever the
formulation employed, remedying past discrimination by a state
actor is a sufficiently weighty state interest to warrant the
remedial use of a carefully constructed affirmative action
program"). See also Sheet Metal Workers, 478 U.S. at 478 U. S.
479 -481 (plurality opinion); id. at 478 U. S.
484 -489 (Powell, J., concurring in part and concurring
in judgment).

															[ Footnote 2/24 ]

															In distinguishing the Court's decision in Firefighters v.
Stotts, 467 U. S. 561 (1984), the plurality in Sheet Metal Workers, 478 U.S. at 478 U. S.
474 -475, asserted:

															"However, this limitation on individual make-whole
relief does not affect a court's authority to order race-conscious
affirmative action. The purpose of affirmative action is not to
make identified victims whole, but rather to dismantle prior
patterns of employment discrimination and to prevent discrimination
in the future. Such relief is provided to the class as a whole,
rather than to individual members; no individual is entitled to
relief, and beneficiaries need not show that they were themselves
victims of discrimination. In this case, neither the membership
goal nor the Fund order required petitioners to indenture or train
particular individuals, and neither required them to admit to
membership individuals who were refused admission for reasons
unrelated to discrimination. We decline petitioners' invitation to
read Stotts to prohibit a court from ordering any kind of
race-conscious affirmative relief that might benefit nonvictims.
This reading would distort the language of § 706(g), and would
deprive the courts of an important means of enforcing Title VII's
guarantee of equal employment opportunity." See also id. at 474 U. S. 483 (Powell, J., concurring in part and concurring in judgment) ("plain
language of Title VII does not clearly support a view that all
remedies must be limited to benefiting victims," and "although the
matter is not entirely free from doubt," the legislative history of
Title VII indicates that nonvictims may be benefited); id. at 474 U.S. 490 (O'CONNOR,
J., concurring in part and dissenting in part) ("It is now clear .
. . that a majority of the Court believes that the last sentence of
§ 706(g) does not in all circumstances prohibit a court in a Title
VII employment discrimination case from ordering relief that may
confer some racial preferences with regard to employment in favor
of nonvictims of discrimination"); id. at 474 U. S. 499 (WHITE, J., dissenting) ("I agree that § 706(g) does not bar relief
for nonvictims in all circumstances").

															[ Footnote 2/25 ]

															In my view, an affirmative action plan need not be supported by
a predicate of racial discrimination by the employer, provided that
the plan

															"serve[s] a valid public purpose, that it was adopted with fair
procedures and given a narrow breadth, that it transcends the harm
to [the nonminority employees], and that it is a step toward that
ultimate goal of eliminating entirely from governmental
decisionmaking such irrelevant factors as a human being's
race." Wygant, 476 U.S. at 476 U. S. 320 (STEVENS, J., dissenting). In this case, however, the plan was
undoubtedly preceded by an adequate predicate of racial
discrimination; thus, I need not consider whether there is some
present-day purpose that might justify a race-conscious promotion
scheme.

															[ Footnote 2/26 ]

															Moreover, the District Court, in its opinion approving the
consent decrees, found that the remedies are "reasonably
commensurate with the nature and extent of the indicated
discrimination," are "limited in duration, expiring as particular
positions generally reflect the racial . . . composition of the
labor market in the county as a whole," allow for "substantial
opportunity for employment advancement of whites and males," and
"do not require the selection of blacks . . . who are unqualified
or who are demonstrably less qualified than their competitors."
App. to Pet. for Cert. 244a-245a. Therefore, it cannot be claimed
that the court failed to consider whether the remedies were
tailored "to fit the nature of the violation." Sheet Metal
Workers, 478 U.S. at 478 U. S. 476 . See also id. at 478 U. S. 496 (O'CONNOR, J., concurring in part and dissenting in part).

															[ Footnote 2/27 ]

															Because consent decrees "have attributes both of contracts and
judicial decrees," they are treated differently for different
purposes. United States v. ITT Continental Baking Co., 420 U. S. 223 , 420 U. S. 236 ,
n. 10 (1975). See also Firefighters v. Cleveland, 478 U.S.
at 478 U. S. 519 .
For example, because the content of a consent decree is generally a
product of negotiations between the parties, decrees are construed
for enforcement purposes as contracts. See ITT Continental
Baking Co., supra, at 420 U. S. 238 ; Stotts v. Memphis Fire Dept., 679 F.2d 541, 557 (CA6 1982), rev'd on other grounds, 467 U. S. 561 (1984). For purposes of determining whether an employer can be held
liable for intentional discrimination merely for complying with the
terms of a consent decree, however, it is appropriate to treat the
consent decree as a judicial order. Unlike the typical contract, a
consent decree, such as the one at issue here, is developed in the
context of adversary litigation. Moreover, the court reviews the
consent decree to determine whether it is lawful, reasonable, and
equitable. In placing the judicial imprimatur on the
decree, the court provides the parties with some assurance that the
decree is legal, and that they may rely on it. Most significantly,
violation of a consent decree is punishable as criminal contempt. See 18 U.S.C. §§ 401, 402; Fed.Rule Crim.Proc. 42.

															[ Footnote 2/28 ]

															In Walker v. Birmingham, 388 U.
S. 307 (1967), we held that a party can be held in
contempt of court for violating an injunction, even if the
injunction was invalid under the Federal Constitution. However, in
upholding the contempt citations at issue, we made clear that that
was "not a case where the injunction was transparently invalid or
had only a frivolous pretense to validity." Id. at 388 U. S. 315 .
Courts and commentators have relied on this reservation in positing
that a contempt citation may be collaterally attacked if the
underlying order was "transparently invalid." See, e.g., In re
Providence Journal Co., 820 F.2d 1342 (CA1 1986), cert.
dism'd sub nom. United States v. Providence Journal, 485 U. S. 693 (1988); 3 C. Wright, Federal Practice and Procedure § 702, p. 815,
n. 17 (2d ed.1982).

															[ Footnote 2/29 ]

															Both warrants and consent decrees bear the indicium of
reliability that a judicial officer has reviewed the proposed act
and determined that it is lawful. See United States v.
Alexandria, 614 F.2d 1358, 1361 (CA5 1980) ("trial court must
satisfy itself that the consent decree is not unlawful,
unreasonable, or inequitable before it can be approved"); App. to
Pet. for Cert. 238a. Unlike the police officer in receipt of a
facially valid warrant, however, an employer with notice of an
affirmative injunction has no choice but to act. This added element
of compulsion renders imposition of liability for acting pursuant
to a valid consent decree all the more inequitable.

															[ Footnote 2/30 ]

															Section 1608.8 does not differentiate between orders "entered by
consent or after contested litigation." 29 CFR § 1608.8 (1989).
Indeed, the reasoning in the Court's opinion today would seem
equally applicable to litigated orders and consent decrees.

															The Court's unwillingness to acknowledge that the grounds for a
collateral attack on a judgment are significantly narrower than the
grounds available on direct review, see ante at 490 U. S. 765 ,
n. 6, is difficult to reconcile with the host of cases cited in United States v. Frady, 456 U.S. at 456 U. S. 165 ,
the cases cited in n. 490
U.S. 755 fn2/6|>6, supra, and those cited in the
scholarly writings cited in n. 5 supra. [ Footnote 2/31 ]

															It is inevitable that nonminority employees or applicants will
be less well off under an affirmative action plan than without it,
no matter what form it takes. For example, even when an employer
simply agrees to recruit minority job applicants more actively,
white applicants suffer the "nebulous" harm of facing increased
competition and the diminished likelihood of eventually being
hired. See Schwarzchild, Public Law By Private Bargain:
Title VII Consent Decrees and the Fairness of Negotiated
Institutional Reform, 1984 Duke L.J. 887, 909-910.

															[ Footnote 2/32 ]

															In professing difficulty in understanding why respondents are
not "bound" by a decree that provides a defense to employment
practices that would otherwise violate Title VII, see ante at 490 U. S. 765 ,
n. 6, the Court uses the word "bound" in a sense that is different
from that used earlier in its opinion. A judgment against an
employer requiring it to institute a seniority system may provide
the employer with a defense to employment practices that would
otherwise violate Title VII. In the sense in which the word "bound"
is used in the cases cited by the Court, ante at 490 U. S.
761 -762 of its opinion, only the parties to the
litigation would be "bound" by the judgment. But employees who
first worked for the company 180 days after the litigation ended
would be "bound" by the judgment in the sense that the Court uses
when it responds to my argument. The cases on which the Court
relies are entirely consistent with my position. Its facile use of
the word "bound" should not be allowed to conceal the obvious flaws
in its analysis.