No. 04-1615
In the Supreme Court of the United States
DWIGHT VINES AND VAN MCGRAW,
PETITIONERS
v.
UNIVERSITY OF LOUISIANA AT MONROE, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
PAUL D. CLEMENT
Solicitor General
Counsel of Record
GREGORY G. GARRE
Deputy Solicitor General
IRVING L. GORNSTEIN
Assistant to Solicitor
General
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
JAMES L. LEE
Deputy General Counsel
CAROLYN L. WHEELER
Acting Associate General
Counsel
JENNIFER S. GOLDSTEIN
Attorney
Equal Employment Opportunity Commission
Washington, D.C. 20507
QUESTIONS PRESENTED
1. Whether a judgment against the Equal Employ- ment Opportunity Commission (EEOC) in an action under the Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 et seq., that seeks relief for parti cular individuals operates as collateral estoppel in a state law action filed by those individuals before the EEOC initiated its action.
2. Whether the court of appeals erred in failing to defer to the Louisiana courts' resolution of that issue.
3. Whether a district court's determination that the EEOC was not in privity with an individual employee is subject to de novo or clear error review.
In the Supreme Court of the United States
No. 04-1615
DWIGHT VINES AND VAN MCGRAW,
PETITIONERS
v.
UNIVERSITY OF LOUISIANA AT MONROE, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
This brief is submitted in response to the Court's or der inviting the Solicitor General to express the views of the United States.
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-23a) is reported at 398 F.3d 700. The opinion of the district court (Pet. App. 24a-25a), and the report and recommen dation of the magistrate judge (Pet. App. 26a-31a) are unreported.
STATEMENT
1. The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. et seq., makes it unlawful, sub ject to certain exceptions, for an employer to discrimi nate in employment because of an individual's age. 29 U.S.C. 623. The ADEA gives the Equal Employment Opportunity Commission (EEOC) the authority to en force the Act's prohibitions. 29 U.S.C. 626(b). In addi tion, the ADEA authorizes any individual to initiate a civil action in any court of competent jurisdiction for legal or equitable relief. 29 U.S.C. 626(c)(1). The right of an individual to bring such an action, however, termi nates if the EEOC commences an action to enforce the right of such individual under the ADEA. Ibid. ("[T]he right of any person to bring such action shall terminate upon the commencement of an action by the [EEOC] to enforce the right of such employee under this chapter.").
In States that have their own entities that investigate and afford remedies for age discrimination, an individual must bring an action before such an entity before filing suit under the ADEA. 29 U.S.C. 633(b). If an EEOC action is commenced with respect to the individual under the ADEA, however, "such action shall supersede any State action." 29 U.S.C. 633(a).
2. Petitioners Dwight Vines and Van McGraw retired from their positions at the University of Louisiana at Monroe (ULM) and began receiving retirement benefits under the Teachers' Retirement System of Louisiana. Pet. App. 2a. Thereafter, ULM rehired petitioners on a year-to-year basis, paying them a salary in addition to their retirement benefits. Ibid. In 1996, the University of Louisiana System (ULS) adopted a policy prohibiting full-time re-employment of retirees, and petitioners were informed that they would not be rehired for the 1996-1997 academic year. Ibid.
Petitioners filed suit against ULM and the Board of Supervisors of ULS (respondents) in the United States District Court for the Western District of Louisiana, alleging that respondents had engaged in discrimination because of age in violation of the ADEA and Louisiana state law. Pet. App. 3a. Petitioners filed an identical action in Louisiana state court. Ibid. Respondents re moved the state court action to federal court, where the cases were consolidated. Ibid.
Subsequently, the EEOC filed suit in federal court against respondents, alleging that respondents had dis criminated against petitioners because of age in viola tion of the ADEA. Pet. App. 3a. The EEOC's action was consolidated with petitioners' action. Ibid.
The district court awarded partial summary judgment to respondents on petitioners' state law claims, holding that petitioners had failed to file the claims within the time allowed by state law. Vines v. Northeast La. Univ., No. 97-cv-00873 (W.D. La. Aug. 3, 1999). In a later deci sion, the district court dismissed petitioners' remaining federal claims without prejudice based on the holding in Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), that the Eleventh Amendment bars a private ADEA suit for damages against the State. Vines v. Northeast La. Univ., No. 97-cv-00873 (W.D. La. May 25, 2000). The district court also severed the removed action and re manded it to state court. Ibid.
The district court subsequently granted summary judgment against the EEOC, rejecting the EEOC's dis parate impact and disparate treatment claims. Br. in Opp. App. 1b-17b. The EEOC filed a notice of appeal, but voluntarily dismissed its appeal before filing a brief in the court of appeals. Pet. App. 3a.
3. Relying on the judgment against the EEOC, re spondents filed a peremptory exception in state court arguing that petitioners' remanded action was barred by res judicata, collateral estoppel, or both. Pet. App. 3a- 4a. The state trial court granted the exception, holding that the EEOC and petitioners were in privity for pur poses of both res judicata and collateral estoppel. Id. at 4a. The state court of appeal reversed and remanded. Ibid. The Supreme Court of Louisiana denied respon dents' application for a writ of certiorari. Ibid.
4. Respondents returned to federal district court and sought an injunction under the Anti-Injunction Act, 28 U.S.C. 2283, that would prevent petitioners from contin uing to litigate their state law claims.1 The magistrate judge recommended that the district court deny respon dents' motion on alternative grounds. Pet. App. 26a-31a. First, the magistrate judge recommended holding that the EEOC and petitioners were not in privity. Id. at 27a-29a. Second, the magistrate judge recommended holding that the EEOC's failure to appeal demonstrated that it had failed to represent petitioners adequately. Id. at 29a-30a. The district court adopted the magis trate judge's recommendation and denied respondents' motion for an injunction. Id. at 24a.
5. The court of appeals reversed. Pet. App. 1a-23a. The court first held that it was not required to give full faith and credit to the Louisiana appellate court's res judicata or collateral estoppel determinations. Id. at 7a- 8a. The court explained that such determinations are entitled to full faith and credit only if they "would be given preclusive effect under Louisiana law." Id. at 7a. The court then found that the determinations would not be entitled to such effect, explaining that, under Louisi ana law, a judgment is entitled to preclusive effect only if it is a final judgment and the Louisiana appellate court's determinations at issue in this case were the sub ject of an "interlocutory judgment and thus not entitled to preclusive effect." Id. at 8a.
The court of appeals then held that collateral estoppel precludes petitioners from litigating the issue of age discrimination in state court because that issue had been resolved adversely to the EEOC in the federal action and petitioners were in privity with the EEOC. Pet. App. 8a-19a. The court added that the EEOC is not al ways in privity with an individual because the interests of the EEOC and individuals may diverge, and that the privity determination therefore must be made on a case- by-case basis. Id. at 10a-11a. The court found, however, that in this case "it is clear that the EEOC's interest did not diverge from that of [petitioners]." Id. at 11a.
The court of appeals also rejected petitioners' argu ment that the EEOC's decision to dismiss its appeal demonstrated inadequate representation. Pet. App. 20a- 21a. The court concluded that the EEOC acted with due diligence and reasonable prudence in voluntarily dismissing its appeal. Id. at 21a.
DISCUSSION
A. The Collateral Estoppel Issue Does Not Warrant Plenary Review Given The Absence Of A Conflict And The Relative Infrequency With Which It Arises
Petitioners seek review of the question whether a judgment against the EEOC in an ADEA action that seeks relief for particular individuals operates as collat eral estoppel in an action filed by those individuals un der state law before the EEOC initiated its action. That question does not warrant review. While the court of appeals' analysis of that issue is incorrect, its decision does not directly conflict with the decision of any other court of appeals, and the issue does not arise with suffi cient frequency, or have sufficient importance, to war rant review in the absence of a conflict.
1. a. "It is a principle of general application in Anglo- American jurisprudence that one is not bound by a judg ment in personam in a litigation in which he is not des ignated as a party or to which he has not been made a party by service of process." Hansberry v. Lee, 311 U.S. 32, 40 (1940). An exception to the general rule exists when a person, "although not a party, has his interests adequately represented by someone with the same inter ests who is a party." Martin v. Wilks, 490 U.S. 755, 762 n.2 (1989). In such circumstances, a judgment against a person's representative is binding on the person. See Restatement (Second) of Judgments § 41(1) (1982). For example, because the trustee of an estate represents the interests of the beneficiaries, a judgment against the trustee is binding on the beneficiaries. Richter v. Jerome, 123 U.S. 233, 246 (1887). Similarly, a judgment against an adequate class representative may be binding on members of the class. Hansberry, 311 U.S. at 41-42.
The principle of representative preclusion may also apply when a public entity is invested by law with au thority to represent a person's interests. Restatement (Second) of Judgments, supra, § 41(1)(d). For example, in Heckman v. United States, 224 U.S. 413, 445-446 (1912), the Court held that a judgment in a case brought by the United States on behalf of Indians to set aside an illegal conveyance would be binding on the Indians. Public actions that seek relief for particular individuals, however, do not always bind the individuals. To the con trary, when "the remedies that a public official is em powered to pursue [are] * * * interpreted as being sup plemental to those which private persons may pursue themselves, * * * the official's maintenance of an action does not preclude other litigation by the persons af fected." Restatement (Second) of Judgments, supra, § 41 cmt. d, at 397.
In General Telephone Co. of the Northwest v. EEOC, 446 U.S. 318, 326 (1980), the Court held that the EEOC's actions under Section 706 of Title VII of the Civil Rights Act of 1964 fall into the category of representative ac tions that do not preclude litigation by the persons af fected. In particular, the Court held that such actions are not "representative actions" under Federal Rule of Civil Procedure 23. The Court reached that conclusion both because Title VII gives individuals a right to file their own actions, and because although the EEOC can secure specific relief for discrimination victims, in mak ing its litigation decisions, "[the EEOC] is guided by the overriding public interest." 446 U.S. at 326 (internal quotation marks omitted). See ibid. ("When the EEOC acts, albeit at the behest of and for the benefit of specific individuals, it acts also to vindicate the public interest in preventing employment discrimination.").
In General Telephone, the Court also squarely re jected the argument that an EEOC judgment precludes subsequent actions by individual employees. The Court explained that "[i]n light of the general intent to accord parallel or overlapping remedies against discrimina tion," it was "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." 446 U.S. at 333 (internal quotation marks omitted). The Court viewed that as "especially true given the possible differ ences between the public and private interests in volved." Ibid. The Court specifically noted that "the EEOC is authorized to proceed in a unified action and to obtain the most satisfactory overall relief even though competing interests are involved and particular groups may appear to be disadvantaged." Id. at 331. See EEOC v. Waffle House, Inc., 534 U.S. 279, 296-297 (2002) (reaffirming that the EEOC may seek to further the public interest through awards of victim-specific relief, and that when it does so, it "does not stand in the employee's shoes").
While an EEOC judgment in a Title VII case is not binding on individual employees, courts are not "power less to prevent undue hardship to the defendant." Gen eral Tel., 446 U.S. at 333. The courts "can and should preclude double recovery by an individual." Ibid. And "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. See Waffle House, Inc., 534 U.S. at 297 (citing General Tel.).
b. The court of appeals in this case held that a differ ent preclusion rule applies to individual actions brought under the ADEA because of the ADEA's different en forcement structure. Pet. App. 10a-12a. In particular, the court pointed to 29 U.S.C. 626(c)(1), which termi nates an individual's right to file an ADEA action once the EEOC files a suit under the ADEA that seeks relief for that individual. In the court's view, that provision demonstrates that the EEOC is in privity with an indi vidual when it seeks relief for that individual. Pet. App. 11a-12a. That reasoning, however, is at odds with the text and history of Section 626(c)(1).
Section 626(c)(1) specifies that the commencement of an EEOC action terminates "the right of any person to bring [an ADEA] action." 29 U.S.C. 626(c)(1) (emphasis added). It does not state that the commencement of an EEOC action terminates the right of a person to main tain an ADEA action that was brought before the EEOC filed suit. Moreover, interpreting Section 626(c)(1) to cut off an individual's right to maintain an existing pri vate action in those circumstances would be directly at odds with the history of Section 626(c)(1).
Section 626(c)(1) was modeled on a similar provision in the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. 216(b), which was added to the FLSA in 1961. See EEOC v. U.S. Steel Corp., 921 F.2d 489, 494 n.4 (3d Cir. 1990); Burns v. Equitable Life Assurance Soc'y of the U.S., 696 F.2d 21, 23 (1982), cert. denied, 464 U.S. 933 (1983). The legislative history to Section 216(b) makes clear that it was not intended to terminate an action that was filed before the Secretary of Labor filed suit. H.R. Conf. Rep. No. 327, 87th Cong., 1st Sess. 20 (1961). Rather, "[c]ongressional reports suggest that although an employee may no longer initiate a new ac tion once the Secretary has sued, an employee may con tinue to litigate, i.e., 'maintain,' an action already pend ing." Breuer v. Jim's Concrete, Inc., 538 U.S. 691, 695 n.1 (2003) (citing reports).2
The general rule is that when a legal provision is transplanted from one source, "it brings the old soil with it." Evans v. United States, 504 U.S. 255, 260 n.3 (1992) (quoting Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947)). And here, Congress explicitly provided that the provi sions of the ADEA "shall be enforced in accordance with the powers, remedies, and procedures provided in [the FLSA]," including those set forth in Section 216(b) of the FLSA. 29 U.S.C. 626(b). Accordingly, Section 626(c) of the ADEA must be construed in accordance with Section 216(b) of the FLSA. See Lorillard v. Pons, 434 U.S. 575, 580-581 (1978).
Section 626 carefully balances an employer's interest in avoiding duplicative litigation against an individual's interest in having his own day in court, and strikes the balance differently depending on whether the individual initiates her own suit before or after the EEOC com mences suit. In that way, Section 626 forecloses the fil ing of suits by attorneys who "seek to reap the benefits of the EEOC's success," but does not discourage attor neys from agreeing to file private ADEA actions out of fear that, "no matter how close to resolution, or how much time spent," the suit "could be cut off by the EEOC filing a similar suit." EEOC v. Eastern Airlines, 736 F.2d 635, 640 (11th Cir. 1984).
Because of the history of Section 626(c)(1) and its lim ited scope and purpose, the court of appeals erred in concluding that it reflects a congressional intent to bind individuals, such as petitioners here, who have filed suit before the EEOC commences suit to the results of an EEOC judgment. To the contrary, because Section 626 preserves the right of such individuals to maintain their own ADEA actions, when they are brought before the EEOC commenced suit, the more natural inference is that Congress viewed the individual and EEOC actions in that context as "parallel or overlapping remedies against discrimination," General Tel., 446 U.S. at 333, just as is true in the Title VII context (at issue in Gen eral Telephone) and in the FLSA context.
That is particularly true because the EEOC's role in ADEA actions is no different from its role in Title VII actions. While the EEOC has authority to seek relief for age discrimination victims in its conduct of litigation, it is guided by the overriding public interest in eliminating unlawful discrimination, as well as other considerations such as available resources to pursue enforcement ef forts, not the narrow interests of particular individuals. The EEOC's decision not to appeal the judgment against it in this case is illustrative. In making that decision, the EEOC considered whether it would be in the public's interest to appeal, not whether it would be in petition ers' interests to appeal. In addition, the prospect of ob taining an adverse precedent in the court of appeals would obviously weigh more heavily in the EEOC's cal culus than in an individual's decision to appeal.
While EEOC actions and previously filed individual actions are distinct, rather than mutually exclusive, rem edies for unlawful discrimination, that does not mean that individuals may use individual actions to obtain ad ditional relief. As is true under Title VII, a court may preclude an individual from double recovery under the ADEA, and it may condition an award under an EEOC judgment on an individual's agreement to relinquish his individual claim. But the court of appeals erred in hold ing that a judgment against the EEOC in an ADEA ac tion operates as collateral estoppel in an action filed by an individual under state law before the EEOC itself commenced suit under the ADEA.
2. Nonetheless, review of the court of appeals' holding on that issue is not warranted. There is no square con flict in the circuits on that issue, and the issue does not arise with sufficient frequency, or have sufficient impor tance, to warrant review absent such a conflict.
a. Petitioners contend (Pet. 12, 19-20; Reply 6) that the decision below conflicts with the Second Circuit's decisions in Dunlop v. Pan American World Airways, Inc., 672 F.2d 1044 (1982), and Burns; the Ninth Cir cuit's decision in Merle Norman Cosmetics, Inc. v. Victa, 936 F.2d 466 (1991); and the Eleventh Circuit's decisions in Eastern Airlines and Riddle v. Cerro Wire & Cable Group, Inc., 902 F.2d 918 (1990). The decision below, however, does not conflict with any of those deci sions.
In Dunlop, the Second Circuit held that the Secretary of Labor-who was responsible for enforcing the ADEA before that authority was transferred to the EEOC-lacked authority under Section 633(a) to extin guish a state law claim through a settlement with an employer. 672 F.2d at 1049 n.7, 1051. The court had no occasion to address whether the Secretary and an indi vidual employee were in privity so that an issue resolved in a fully litigated ADEA judgment against the Secre tary would have a collateral estoppel effect in a state law suit filed by the individual before the Secretary com menced suit. As a result, Dunlop did not address the preclusion issue presented in this case.3
Furthermore, since its decision in Dunlop, the Second Circuit has held that when an individual signs an agree ment to arbitrate an ADEA claim, the EEOC may not seek monetary remedies for that individual. EEOC v. Kidder, Peabody & Co., 156 F.3d 298, 303 (1998). In so holding, the court relied on the Third Circuit's holding in U.S. Steel that the ADEA's enforcement structure demonstrates that Congress intended the EEOC to serve as representative when it seeks relief for that indi vidual. Kidder, Peabody, 156 F.3d at 302. That reason ing accords with, rather than conflicts with, the reason ing of the court of appeals in this case.
The Second Circuit's decision in Burns also does not conflict with the decision below. In that case, the EEOC filed an ADEA action several years after private individ uals filed such an action. The EEOC originally named those individuals as aggrieved employees, but later agreed to dismiss any claim seeking relief for them. After the EEOC filed suit, the employer moved to dis miss the suit filed by the individuals based on the argu ment that Section 626(c)(1) requires the dismissal of pending private actions when the EEOC files suit. The Second Circuit rejected that claim, holding that under Section 626(c)(1), the commencement of an EEOC action does not affect previously filed private suits. 696 F.2d at 23-24.
Because Burns addressed only the question whether the filing of an EEOC action terminates a previously filed action by virtue of Section 626(c)(1), and did not address whether a judgment in an EEOC action can operate as collateral estoppel in such an action, it does not conflict with the decision below. The latter issue depends on the resolution of the further question- whether Section 626(c) reflects a congressional intent to preserve a previously filed action as a fully independent remedy or whether it instead reflects a more limited purpose to provide a separate remedy that is unaffected by an EEOC judgment only when the individual action results in a judgment first or when the interests of the EEOC and the individual diverge. In addition, the latter issue requires consideration of this Court's precedents, such as General Telephone, discussing the preclusive effect of actions undertaken by the government that seek relief for particular individuals. Moreover, as dis cussed above, the Second Circuit in Kidder, Peabody adopted the view that the EEOC acts as a representa tive of private individuals when it seeks relief for them, and that view accords with the view of the court below.
The Ninth Circuit's decision in Merle Norman also does not conflict with the decision below. In that case, Victa brought a state law claim in state court. The EEOC subsequently filed its own ADEA action seeking relief for Victa and entered into a consent decree that provided for injunctive relief, but did not provide make- whole relief to Victa. See Victa v. Merle Norman Cos metics, Inc., 24 Cal. Rptr. 2d 117 (Ct. App. 1993). The employer sought to enjoin the litigation of Victa's state law claim on the ground that the EEOC's judgment pre cluded Victa from litigating it. The district court re fused to issue an injunction, and the Ninth Circuit af firmed. After expressing doubts that Victa's state law claim was actually decided by the EEOC's judgment, the court of appeals upheld the district court's refusal to issue an injunction on the ground that the employer could litigate that issue in state court and doubts about the propriety of issuing the injunction should be re solved in favor of allowing the state court to act. Merle Norman, 936 F.2d at 468. The Ninth Circuit never reached the question whether an EEOC judgment oper ates as collateral estoppel in an individual action brought under state law.
Nor is there any conflict between the decision below and the Eleventh Circuit's decisions. Eastern Airlines, like the Second Circuit's Burns decision, addressed only whether the commencement of an EEOC action termi nates an individual's previously filed ADEA action. The Eleventh Circuit, consistent with the Second Circuit, held that it does not, 736 F.2d at 639-641, and did not address the separate question whether a judgment against the EEOC operates as collateral estoppel in such an action. In Riddle, the Eleventh Circuit held that a consent decree entered into by the EEOC did not operate as res judicata or collateral estoppel in a subse quently filed private action. Riddle, however, involved a Title VII suit, not an ADEA suit, and it therefore does not conflict with the court of appeals' decision in this ADEA case.
b. The question presented does not arise with suffi cient frequency to warrant the Court's review in the absence of a clearly developed circuit conflict. During the nearly 40 years since the enactment of the ADEA, the question whether an EEOC judgment has a res judi cata or collateral estoppel effect on a previously filed state law action has arisen only rarely. Nor is the issue likely to arise with any frequency in the future. Over the past ten years, the EEOC has filed between 21 and 41 ADEA cases each year, and in cases where the EEOC has filed, there has rarely been a previously filed private action. There is no reason to conclude that the instances of parallel EEOC and private litigation will increase in the future. Moreover, even in the rare cases in which there is parallel litigation, the collateral estoppel issue could arise only when the cases are not consolidated and resolved together, and even then, only when the individ ual is sufficiently dissatisfied with the resolution achieved in the EEOC action and sufficiently optimistic about the chances for a different result to be willing to bear the costs of further litigation.
The importance of the issue is further diminished by the fact-specific limitation that the court of appeals placed on its preclusion holding. The court expressly held that its decision does not apply when there is a clear divergence of interest between the EEOC and the private individual, Pet. App. 10a-11a, such as where the EEOC settles for injunctive relief and abandons its claim for monetary relief. Id. at 13a-14a; see id. at 10a- 11a ("[T]he EEOC is not always to be considered the representative of individuals on whose behalf it brings an ADEA action"; "[i]n a situation where there is a clear divergence of interests between the EEOC and the ag grieved individual, we must determine in each case whether privity exists.") (emphasis added).
For the reasons discussed above, an approach that presumes that there is privity between the EEOC and a private individual unless the court can identify a clear divergence of interests is not consistent with a proper
understanding of the ADEA's enforcement structure. But the exception to the court's ruling for cases where there is a clear divergence of interests may materially ameliorate the potentially harmful consequences of the decision. That exception, together with the absence of a conflict in the circuits and the infrequency with which the issue arises, counsels against granting plenary re view of the first question in this case.
B. The Remaining Questions Presented Do Not Implicate Any Conflict And Do Not Warrant Plenary Review
Petitioners also seek review of two additional ques tions. The first is whether the court of appeals erred in failing to defer to a state appellate court determination that the EEOC's judgment does not have a collateral estoppel effect on petitioners' state law action. Pet. ii. That question also does not warrant review.
The Full Faith and Credit Act requires federal courts to give state judicial proceedings "the same full faith and credit * * * as they have by law or usage in the courts of such states." 28 U.S.C. 1738. In Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518, 524 (1986), the Court held that Section 1738 applies to state law determinations on the res judicata effect of a federal judgment. Accordingly, "[o]nce the state court has fi nally rejected a claim of res judicata, then the Full Faith and Credit Act becomes applicable and federal courts must turn to state law to determine the preclusive effect of the state's court's decision."
Applying Parsons, the court of appeals in this case correctly held that it was not required to give full faith and credit to the state appellate court's determination that the EEOC's judgment did not have a preclusive effect on petitioners' state law action. Louisiana law gives preclusive effect only to judgments that are final; the state appellate court's collateral estoppel determina tion in this case, however, was interlocutory rather than final. As a result, a federal court was not required to give full faith and credit to the state court's collateral estoppel determination. Pet. App. 7a-8a.
Petitioners argue (Reply 5) that principles of comity and federalism nonetheless required the court of ap peals to defer to the Louisiana appellate court's determi nation. But absent the command of the Full Faith and Credit Act, a federal court is not required to defer to a state court determination on the preclusive effect of the federal court's own judgment. In that circumstance, the Anti-Injunction Act, 28 U.S.C. 2283, expressly autho rizes a federal court to make its own determination. While there may be circumstances in which it would be appropriate for a federal court to exercise its discretion to allow the effect of its judgment to be resolved in the state courts with the possibility of further review in this Court, Parsons, 474 U.S. at 526, the question whether this is such a case is fact-bound, does not implicate any conflict among the circuits, and does not present any issue of recurring importance.
The last question presented by the petition (Pet. 25- 29) is whether the court of appeals was required to apply a clear-error standard of review to the district court's determination that the EEOC was not in privity with petitioners. Review of that question is not warranted. The resolution of the privity issue in this context is a question of federal law subject to do novo review, not a question of fact subject to clear-error review. Petition ers cite no authority that would support a contrary con clusion. Moreover, to the extent there is a subsidiary question of how a court of appeals should conduct the
case-specific privity inquiry fashioned by the Fifth Cir cuit below (which itself is erroneous for the reasons stated at pp. 6-12, supra), that subsidiary question does not merit review for all the reasons that the more funda mental preclusion issue does not justify plenary review.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
PAUL D. CLEMENT
Solicitor General
GREGORY G. GARRE
Deputy Solicitor General
IRVING L. GORNSTEIN
Assistant to Solicitor
General
JAMES L. LEE
Deputy General Counsel
CAROLYN L. WHEELER
Acting Associate General
Counsel
JENNIFER S. GOLDSTEIN
Attorney
Equal Employment Opportunity Commission
DECEMBER 2005
1 The Anti-Injunction Act permits a federal court to enjoin state court proceedings "to protect or effectuate its judgments." 28 U.S.C. 2283.
2 The pertinent committee report accompanying the FLSA pro vision states:
The bringing of an action by the Secretary seeking such relief with respect to such compensation owing to any employee would, after filing of the complaint in the Secretary's action, preclude such employee from becoming a party plaintiff in a private action to recover the amounts due and an additional equal amount as liquidated damages. The filing of the Secre tary's complaint against an employer would not, however, operate to terminate any employee's right to maintain such a private suit to which he had become a party plaintiff before the Secretary's action.
H.R. Conf. Rep. No. 327, supra, at 20 (emphasis added).
3 Even without regard to privity, there would have been no basis for asserting that res judicata or collateral estoppel barred the state law claims at issue in Dunlap. The settlement could not have had a res judicata effect because the Secretary had no authority to bring a state law claim, Pet. App. 19a n.10, and it could not have had a collateral estoppel effect because there were no common issues of law or fact that were actually litigated and finally resolved by the settlement. Id. at 6a.