Petition for writ of certiorari to the United States Court of
Appeals for the Fifth Circuit. The petition for writ of certiorari
Justice REHNQUIST, with whom Justice BRENNAN joins, dissenting
from denial of certiorari. This case presents the question whether
a victim of alleged discrimination may have his right to sue
totally extinguished by a prior suit to which he was not a party
and in which a consent decree was entered before his cause of
action even accrued. Because I think the Court of Appeals for the
Fifth Circuit erred in holding that a district court cannot
entertain a suit challenging practices allegedly mandated or
permitted by a prior consent decree, I dissent from the denial of
certiorari. In United States v. City of Jackson, Civil Action No.
J-74-66(N) (SD Miss.); Corley v. Jackson Police Dept., Civil Action
No. 73J-4(C) (SD Miss.). As described by the district court in this
"The consent decree entered in United States of America v. City
of Jackson required, inter alia, that the City of Jackson adopt and
seek to achieve a goal for hiring blacks for one-half of all
vacancies in all job classifications, subject to the availability
of qualified applicants, until such time as the proportion of
blacks to whites in each classification equalled the proportion of
blacks to whites in the working age population of the City of
Jackson. The Corley v. Jackson Police Department consent decree
incorporated by reference the United States of America v. City of
Jackson decree and further provided that the Jackson Police
Department establish separate promotion eligibility lists for white
and black employees and that it make future promotions, subject to
the availability of qualified black candidates, alternately from
each such list in a one- to-one ratio until the proportion of black
persons in supervisory positions and in the ranks above patrolman
substantially equalled the proportion of blacks to whites in the
working age population of the City of Jackson." Pet. App., at
In 1976 and 1978, petitioners, who are white, filed two suits
against the City of Jackson alleging that the City had
Page 464 U.S.
nated against them in the police department by hiring or
promoting less qualified blacks solely on the basis of their race.
In substance, the complaints alleged that the "goals" established
in the prior consent decrees were being treated as strict quotas by
the City, and that blacks were being hired and promoted over whites
without regard to relative qualifications. See First Amended and
Supplemental Complaint at 36-38, Ashley v. City of Jackson, Civil
Action No. J76-70(R)(SD Miss. July 11, 1978); Complaint at 20-22,
Thaggard v. City of Jackson, Civil Action No. J78-0218(C) (SD Miss.
May 22, 1978). Petitioners contended that the challenged practices
were not required by the consent decrees or, in the alternative,
that the consent decrees were themselves illegal. As a third
option, assuming respondent's practices under the consent decrees
were necessary to remedy the effects of the City's past racial
discrimination, petitioners claimed that they themselves were now
victims of that prior discrimination and, as such, were entitled to
Both suits were brought only after timely charges of
discrimination had been filed with the Economic Employment
Opportunity Commission (EEOC), and statutory notices of the right
to sue received. Jurisdiction of the district court was invoked
under the Fifth and Fourteenth Amendments to the Constitution,
under Title VII of the Civil Rights Act, 42 U.S.C. 2000e-5, and
under various other provisions of federal law. The court
consolidated the two actions.
Petitioners also filed motions for leave to intervene in the
consent decree suits in order to challenge those decrees on their
face. The United States opposed the motions on the grounds, among
others, that they were untimely and asserted interests already
adequately represented by the defendant City. The motions to
intervene were denied. No appeal was taken.
Following a hearing, the district court dismissed the
consolidated suits for lack of subject matter jurisdiction. The
court determined that "[ t]he practices complained of are the
result of consent decrees which were entered" in the prior cases,
Pet. App., at 12a, and, thus, that the suits constitute an
impermissible collateral attack on the consent decrees over which a
different court has continuing jurisdiction. The dismissal was
affirmed on the same grounds by the Fifth Circuit, and this
I find myself at a loss to understand the origins of the
doctrine of " collateral attack" employed by the lower courts in
this case to preclude a suit brought by parties who had no
connection with the
Page 464 U.S.
prior litigation. Their cause of action did not even accrue
until at least a year after the entry of the consent decrees. And
their attempt to intervene in those suits, more than three years
after entry of the consent decrees, was denied as untimely.
It is fundamental premise of preclusion law that nonparties to a
prior action are not bound by the judgment. Sea-Land Services, Inc.
v. Gaudet, 414 U.S.
, 593, 819 (1974); Zenith Radio Corp. v. Hazeltine Research,
Inc., 395 U.S.
, 110, 1569 (1969). This rule can be traced to an opinion of
Chief Justice Marshall in Davis v. Wood, 1 Wheat. (14 U.S.) 6, 8-9
(1816); it 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, at 417
(1981). Only a few Terms ago, we had occasion to stress that "[i]t
is a violation of due process for a judgment to be binding on a
litigant who was not a party nor a privy and therefore has never
had an opportunity to be heard." Parklane Hosiery Co., Inc. v.
Shore, 439 U.S.
, 327 n. 7, 649 n. 7 (1979).
This principle should apply with all the more force to a consent
decree, which is little more than a contract between the parties,
formalized by the signature of a judge. The central feature of any
consent decree is that it is not an adjudication on the merits. The
decree may be scrutinized by the judge for fairness prior to his
approval, but there is no contest or decision on the merits of the
issues underlying the lawsuit. Such a decree binds the signatories,
but cannot be used as a shield against all future suits by
nonparties seeking to challenge conduct that may or may not be
governed by the decree.
Nonparties have an independent right to an adjudication of their
claim that a defendant's conduct is unlawful. Suppose, for example,
that the government sues a private corporation for alleged
violations of the antitrust laws and then enters into 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 injunctive
relief. See 2 P. Areeda & D. Turner, Antitrust Law 330, at 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 accord-
Page 464 U.S.
ance with the consent decree. Such compliance might be relevant
to a defense of good faith immunity, see Bennett v. Williams, Pet.
for Cert. No. 82-1704, filed (April 19, 1983), but it would not
suffice to block the suit altogether.
In litigation under Title VII of the Civil Rights Act, we have
constantly stressed the importance of individual enforcement
actions, and have shown great reluctance to find such actions
precluded. Thus, in Alexander v. Gardner-Denver Co., 415 U.S. 36
held that an individual does not forfeit his private cause of
action if he first pursues his grievance under the
nondiscrimination clause of a collective-bargaining agreement.
"Title VII . . . specifies with
precision the jurisdictional prerequisites that an individual must
satisfy before he is entitled to institute a lawsuit. In the
present case, these prerequisites were met when petitioner (1)
filed timely a charge of employment discrimination with the
Commission, and (2) received and acted upon the Commission's
statutory notice of the right to sue. . . . There 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." Id., at 47.
In this case, petitioners have satisfied the same prerequisites,
and "[ t]here is no suggestion in the statutory scheme that a prior
[consent decree to which petitioners were not parties] either
forecloses an individual's right to sue or divests federal courts
of jurisdiction." Ibid.
In General Telephone Co. v. EEOC, 446 U.S.
, 332, 1707 (1980), we held that the EEOC may seek classwide
relief under Title VII without being certified as the class
representative under Rule 23, Fed.Rules Civ.Proc., even though we
recognized that a judgment so obtained would not "be binding upon
all individuals with similar grievances in the class or subclasses
that might be certified."
"In light of the 'general intent to
accord parallel or overlapping remedies against discrimination,' .
. . we are unconvinced that it would be consistent with the
remedial purpose of the statutes to bind all 'class' members with
discrimination grievances against an employer by the relief
obtained under an EEOC judgment or settlement against the employer.
This is especially true given the possible differences between the
Page 464 U.S.
public and private interests involved." Id., at 333 (citing
Alexander, 415 U.S., at 47).
We did acknowledge in that case that "where the EEOC has
prevailed in its action, the court may reasonably require any
individual who claims under its judgment to relinquish his right to
bring a separate private action." Ibid. (emphasis added). But we
were unwilling to bind a class member to a prior judgment when that
class member decides to forego the available class relief because
he thinks he can obtain better relief in a private action. It
certainly seems to follow that we would not preclude someone who
was not a party to the prior action from bringing a private
Finally, just last Term, in W.R. Grace v. Local Union 759, ---
U.S . ___ (1983), we held that a union, which declined to
participate in conciliation between the EEOC and a private
corporation, could subsequently challenge layoffs made pursuant to
the conciliation agreement as in violation of the seniority
provisions of its collective-bargaining agreement with the
corporation. The unanimous Court was unmoved by the Company's claim
that such suits would subject it to conflicting obligations. "The
dilemma," we stressed, "was of the Company's own making." Id., at
___ - ___. The Company was attempting, by hiding behind the
conciliation agreement, "to shift the loss on its male employees,
who shared no responsibility for its sex discrimination." Id., at
In sum, I see no justification, either in general principles of
preclusion or the particular policies implicated in Title VII
suits, for the district court's refusal to take jurisdiction over
this case. Accordingly, I would grant certiorari to review the
judgment of the Court of Appeals for the Fifth Circuit.