10-1975-cv Briscoe v. City of New Haven
**UNITED STATES COURT OF APPEALS** 1 2 **FOR THE SECOND CIRCUIT** 3 4 August Term, 2010 5 6 7 (Argued: April 8, 2011 Decided: August 15, 2011) 8 9 Docket No. 10-1975-cv 10 11 - - - - - - - - - - - - - - - - - - - - -x 12 13 MICHAEL BRISCOE, 14 15 Plaintiff-Appellant , 16 17 - v.- 18 19 CITY OF NEW HAVEN, 20 21 Defendant-Appellee

. 22 23 - - - - - - - - - - - - - - - - - - - -x 24 25 Before: JACOBS, Chief Judge , WINTER and CABRANES, 26 Circuit Judges

. 27 This appeal raises a disparate-impact issue that was 28 expressly anticipated in Ricci v. DeStefano , 129 S. Ct. 2658 29 (2009), and which has arisen in the aftermath of that case. 30 Michael Briscoe, an African-American firefighter for the 31 City of New Haven, alleges that the firefighter promotion 32 exams challenged in Ricci (whose results the Supreme Court 33 ordered to be certified) were arbitrarily weighted, yielding 34 an impermissible disparate impact. The United States 352 District Court for the District of Connecticut (Haight, J. ) 1 dismissed the claim as “necessarily foreclosed” by Ricci

. 2 We vacate the judgment of the district court and remand 3 for further proceedings, but express no view as to whether 4 dismissal is warranted based on other defenses raised by the 5 city below. 6 DAVID N. ROSEN, David Rosen & Associates, 7 P.C., New Haven, CT, for 8 Plaintiff-Appellant

. 9 10 VICTOR A. BOLDEN (Richard A. Roberts and 11 Stacey L. Pitcher, Nuzzo & Roberts, 12 L.L.C., Cheshire, CT, Lawrence D. 13 Rosenberg, Jones Day, Washington, DC, and 14 Kathleen M. Foster, Office of Corporation 15 Counsel, City of New Haven, CT, on the 16 brief ), Office of Corporation Counsel, 17 New Haven, CT, forDefendant-Appellee

. 18 19 Karen Lee Torre, Law Offices of Norman A. 20 Pattis, LLC, Bethany, CT, forAmicus 21 CuriaeFrank Ricci et al. 22 23 DENNIS JACOBS, Chief Judge : 24 This appeal raises a disparate-impact issue that was 25 expressly anticipated in Ricci v. DeStefano , 129 S. Ct. 2658 26 (2009), and which has arisen in the aftermath of that case. 27 The City of New Haven and the New Haven Civil Service 28 Board (“CSB”), which administer the city’s firefighter 29 promotion exams, had been concerned that white candidates 303 had outperformed minority candidates on the 2003 exams. The 1 city feared that certifying the results would trigger 2 disparate-impact liability under Title VII. After several 3 tense public hearings concerning certification, the CSB 4 ultimately discarded the results. 5 In Ricci , eighteen firefighters (seventeen white and 6 one Hispanic) alleged that the CSB’s refusal to certify the 7 results constituted disparate treatment under Title VII. 8 129 S. Ct. at 2671. The Supreme Court agreed, 9 notwithstanding the city’s countervailing concern about 10 disparate-impact liability. Such concern, the Court held, 11 can excuse an otherwise impermissible action only if 12 supported by a “strong basis in evidence” that the employer 13 would have faced disparate-impact liability had it acted 14 otherwise. Id. at 2677. 15 Unusually, the Court reversed the challenged judgment 16 rather than vacating it, which prevented the city from 17 adducing evidence to satisfy the newly imposed “strong 18 basis” standard. Instead, the city was ordered to certify 19 the results. Id. at 2677, 2681. Presciently, the Court 20 anticipated a challenge to the city’s compliance with the 21 order: 224 Our holding today clarifies how Title VII applies 1 to resolve competing expectations under the 2 disparate-treatment and disparate-impact 3 provisions. If, after it certifies the test 4 results, the City faces a disparate-impact suit, 5 then in light of our holding today it should be 6 clear that the City would avoid disparate-impact 7 liability based on the strong basis in evidence 8 that, had it not certified the results, it would 9 have been subject to disparate-treatment 10 liability. 11 Id. at 2681. 12 Briscoe brings the anticipated lawsuit, alleging that 13 the weighting of the written and oral sections of the test-- 14 60% and 40%, respectively, as dictated by the collective 15 bargaining agreement between the city and the firefighters’ 16 union, id. at 2679 --was arbitrary and unrelated to job 17 requirements. He asserts that the industry norm for such 18 weighting was 30% written/70% oral; under that scoring, he 19 was promotable. He seeks primarily (1) to enjoin the city 20 from using the 60/40 weighting, and (2) eligibility for 21 promotion to lieutenant (with retroactive pay and 22 seniority), without displacing any of the Ricci plaintiffs 23 who were promoted. 24 The city argued in the district court that “the Supreme 25 Court’s decision in Ricci precludes the plaintiff’s Title 26 VII claim.” Def.’s Mot. to Dis. at 7. The court apparently 271Briscoe moved to intervene in Ricci , but only after the Supreme Court’s remand. By that time it was too late to adduce evidence or champion the 60/40 weighting issue. ( He sought to intervene merely to “forestall any argument by the City that the resolution of his underlying claim should be dictated by the choice to file a separate suit rather than moving to intervene.” Joint Appendix at 194 (internal quotation marks omitted).) The motion was denied.
5 agreed, granting the city’s motion to dismiss on preclusion 1 grounds: 2 What the Court held in Ricci and what it said in 3 doing so squarely forecloses Briscoe’s claims. 4 The Supreme Court remanded [Ricci ] with directions 5 that the 2003 exam results be certified. That has 6 been done and promotions have been made 7 accordingly. Briscoe cannot now raise a disparate 8 impact claim with respect to those same exam 9 results. 10 11 Briscoe v. City of New Haven , No. 09-cv-1642, 2010 U.S. 12 Dist. LEXIS 69018, at *27 (D. Conn. July 12, 2010). The 13 court acknowledged that its ruling may deny Briscoe his day 14 in court, but felt obliged to effect its interpretation of 15 the Supreme Court’s mandate: 16 If, as he contends, Briscoe is denied his day in 17 court or is bound by a decision in a case to which 18 he was not a party, it is because the Supreme 19 Court decided as much, and this court is bound by 20 the decisions of the high court. 21 Id. at *22. Had Briscoe wished to protect his rights, the 22 court reasoned, he should have timely intervened in Ricci

. 1 23 Id. at *25. 242The city thus disputes that the district court opinion rested on preclusion grounds, but fails to discuss the passages that clearly implicate preclusion principles.

3Ricciheld that “before an employer can engage in intentional discrimination . . . [it] must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.” 129 S. Ct. at 2677. The city’s argument is thus that an employer can engage in conduct yielding a disparate impact if it has a strong basis in evidence to believe it will be subject to disparate-treatment liability if it acts otherwise.
6 Curiously, the city now rejects the preclusion theory 1 it argued in the district court. Appellee Br. at 23 (“The 2 only one raising claim preclusion is [Briscoe]. The Amended 3 Complaint was dismissed not because it was legally 4 precluded, 2but because disparate treatment liability was 5 already found.” (footnote added)). It argues instead that 6 Ricci ’s “strong basis in evidence” test for a disparate7
treatmentclaim applies equally to a disparate- impact 8 claim. 3 Id. at 12. Based on that premise, the city argues 9 that it had a strong basis in evidence that it was facing 10 disparate-treatment liability. Id. at 14. The evidence 11 cited by the city is the Ricci decision itself, id. at 11, 12 in which the Court concluded that failing to certify the 13 exam results constituted disparate-treatment under Title 14
VII. 157 We review de novothe district court’s dismissal of an 1 action under Fed. R. Civ. P. 12(b)(6) for failure to state a 2 claim. Selevan v. N.Y. Thruway Auth. , 584 F.3d 82, 88 (2d 3 Cir. 2009). We consider the preclusion and two-way Ricci 4 arguments in turn. 5
6

**I** 7 The district court ascribed preclusive effect to the 8 sentence in Ricci that predicted a Briscoe-type claim, even 9 though the wording did not expressly invoke preclusion. The 10 district court’s theory is inconsistent with well-settled 11 principles of nonparty preclusion. 12 13

**A** 14 The general principle in Anglo-American jurisprudence 15 is “that one is not bound by a judgment in personamin a 16 litigation in which he is not designated as a party or to 17 which he has not been made a party by service of process.” 18 Hansberry v. Lee , 311 U.S. 32, 40 (1940). The law therefore 19 avoids “impos[ing] upon any person absolutely entitled to a 20 hearing the burden of voluntary intervention in a suit to 21 which he is a stranger.” Chase Nat’l Bank v. Norwalk , 291 224Two friends brought separate Freedom of Information Act suits seeking certain documents from the Federal Aviation Administration. The first suit was unsuccessful. The second suit was dismissed on the ground that the plaintiff’s friend (who brought the first suit) qualified as his “virtual representative,” despite the lack of evidence that the plaintiff “controlled, financed, participated in, or even had notice of [the] earlier suit.” Id. at 885. 8 U.S. 431, 441 (1934). 1 “Though hardly in doubt, th[is] rule against nonparty 2 preclusion is subject to exceptions.” Taylor v. Sturgell , 3 553 U.S. 880, 893 (2008). Taylorenumerated the six 4 recognized categories of nonparty preclusion, id. at 893-95, 5 but rejected in that case an exception for instances of 6 “virtual representation.” 4We therefore consult these six 7 categories: “The preclusive effects of a judgment in a 8 federal-question case decided by a federal court 9 should . . . be determined according to the established 10 grounds for nonparty preclusion described in [Taylor ].” Id. 11 at 904. The city does not cite Taylor , and does not argue 12 that this case fits any of the recognized exceptions. In 13 any event, it does not: 14 First, Briscoe did not agree to be bound by the 15 determination of the issues in Ricci . Second, no pre16 existing “substantive legal relationship” existed between 17 the city and Briscoe that is akin to a “bailee and bailor” 189 or “assignee and assignor.” Third, Briscoe was not 1 adequately represented by the city in Ricci , because their 2 interests are widely divergent. Fourth, Briscoe did not 3 “assume[] control” over the Ricci litigation, or have the 4 “opportunity to present proofs and argument.” Fifth, 5 Briscoe is not avoiding preclusive force by relitigating 6 through a proxy. Sixth, no special statutory scheme such as 7 bankruptcy or probate is present. (Even if Title VII is 8 considered a special statutory scheme, the city has not 9 complied with the statute’s preclusion provision, as 10 discussed below). See Taylor , 553 U.S. at 893-95. 11
12

**B** 13 The unavailability of nonparty preclusion is a 14 recurring problem in Title VII litigation. In Martin v. 15 Wilks , 490 U.S. 755 (1989), a group of white firefighters 16 challenged the City of Birmingham’s acquiescence to a series 17 of consent decrees that settled a Title VII lawsuit, brought 18 by the NAACP and several black firefighters, alleging 19 racially discriminatory hiring practices. Id. at 758-59. 20 The consent decrees “set forth an extensive remedial 21 scheme,” including annual and long-term goals for hiring 2210 black firefighters. Id. at 759. When the city altered its 1 hiring practices accordingly, the plaintiffs in Martin 2 alleged that the city’s compliance with the decrees amounted 3 to discriminatory treatment under Title VII, id. at 759-60; 4 the city argued that the suit was an “impermissible 5 collateral attack[]” on the decrees. Id. at 760. 6 Underscoring the “deep-rooted historic tradition that 7 everyone should have his own day in court,” the Supreme 8 Court held that the consent decrees were not preclusive 9 because the plaintiffs were not parties to the original 10 action. Id. at 762, 768 (internal citations and quotation 11 marks omitted). Rejecting the city’s argument that the 12 white firefighters should have protected their rights by 13 intervening in the original suit, the Court ruled that “a 14 party seeking a judgment binding on another cannot obligate 15 that person to intervene; he must be joined.” Id. at 763. 16 The Court placed the burden on the parties of a lawsuit--who 17 “presumably know better than anyone else the nature and 18 scope of relief sought in the action, and at whose expense 19 such relief might be granted”--to bring in additional 20 parties when necessary. Id. at 765. 21 The MartinCourt thus upheld “the general rule that a 225Section 2000e-2(n)(1)(B)(i)(II) also enables preclusion of “a person whose interests were adequately represented by another person” who challenged the judgment. The city does not contend that it adequately represented Briscoe’s interests.
11 person cannot be deprived of his legal rights in a 1 proceeding to which he is not a party.” Id. at 759. 2 3
**C** 4 In evident recognition that Martinhindered the 5 finality of Title VII dispositions, Congress created a way 6 by which litigants can bind certain nonparties who would 7 otherwise stay on the sidelines. See42 U.S.C. § 2000e8 2(n)(1). Under § 2000e-2(n), an employment practice that 9 “implements and is within the scope of a [Title VII] 10 litigated or consent judgment or order” may not be 11 challenged by a person who had actual notice of the proposed 12 judgment or order and a “reasonable opportunity” to “present 13 objections to such judgment or order by a future date 14 certain.” See§ 2000e-2(n)(1)(A), (B)(i). 5“The intent of 15 [§ 2000e-2(n)] is to protect valid decrees from subsequent 16 attack by individuals who were fully apprised of their 17 interest in litigation and given an opportunity to 18 participate, but who declined that opportunity.” 137 Cong. 1912 Rec. 29,039 (1991). 1 It cannot be said that Briscoe had a “reasonable 2 opportunity” to present objections to the Ricci judgment, 3 within the meaning of § 2000e-2(n) . The requirement for an 4 opportunity to present objections by “a future date certain” 5 suggests a formal process. Compliance is therefore usually, 6 if not always, secured through notice and a fairness 7 hearing. See, e.g. , Brennan v. N.Y. City Bd. of Educ. , 260 8 F.3d 123, 127 (2d Cir. 2001) (“The parties moved the 9 district court to hold a fairness hearing at which 10 objections to the Agreement would be heard.” (citing 11 § 2000e-2(n))); Sims v. Montgomery Cnty. Comm’n , 9 F. Supp. 12 2d 1281, 1286 (M.D. Ala. 1998) (“[T]he notice and fairness 13 hearing were sufficient under the Civil Rights Act of 1991.” 14 (citing § 2000e-2(n)(1))). But there was no pre-judgment 15 fairness hearing in Ricci : The defendants were awarded 16 summary judgment by the district court, and the case was not 17 revived until the Supreme Court mandated entry of judgment 18 in favor of the Ricci plaintiffs. 19 In any event, the city has abandoned the argument it 20 made below that the Ricci proceedings satisfied § 2000e21 2(n). SeeAppellee Br. at 17 (“Neither Martinnor § 2000e- 226 We have no need to consider, much less invite adherence to, the extended dicta as to the potential contours of the doctrine for a disparate-treatment claim offered in United States v. Brennan , No. 08-5171-cv, 2011 U.S. App. LEXIS 9455, at *123-37, *168-88 (2d Cir. May 5, 2011); id. at *218-19 (Raggi, J. , concurring in the judgment) (cautioning that “majority opinion . . . yields an abundance of dicta that could confuse future consideration of judgments actually based on Ricci .”). 13 2(n) are relevant to the present case.”). Section 1 2000e-2(n) therefore does not insulate the city’s 2 certification of the test results. 3

*** 4 For these reasons, under well-settled Supreme Court 5 precedent, Briscoe’s claim is not precluded by Ricci 6 (notwithstanding Briscoe’s knowledge that the proceedings 7 were pending and his failure to timely intervene). We are 8 skeptical that the Court would use one sentence in Ricci to 9 silently revise preclusion principles that were unanimously 10 reaffirmed just over a year before in Taylor

. 11
12

**II** 13 The city’s primary argument is for a broad, two-way 14 reading of Ricci ’s “strong basis in evidence” standard. The 15 argument requires us to consider this standard for the first 16 time. 6 1714 The parties agree that Ricci established a new standard 1 for disparate-treatment claims: A disparate-treatment claim 2 is avoidable based on concerns about disparate-impact 3 liability only if there was a “strong basis in evidence” of 4 such liability. Ricci , 129 S. Ct. at 2677. Late in the 5 opinion, however, the Court contemplated the reverse 6 scenario--“avoid[ance]” of a disparate -impact suit: 7 If, after it certifies the test results, the City 8 faces a disparate-impact suit, then in light of 9 our holding today it should be clear that the City 10 would avoid disparate-impact liability based on 11 the strong basis in evidence that, had it not 12 certified the results, it would have been subject 13 to disparate-treatment liability. 14 Id. at 2681. 15 The city characterizes this one sentence of dicta as 16 establishing a symmetrical companion to Ricci ’s earlier 17 holding that an employer may avoid disparate-treatment 18 claims based on a “strong basis in evidence” of disparate19 impact liability. That is, the city argues that an employer 20 may defeat a disparate-impact claim if it had a strong basis 21 in evidence that it would have been subject to disparate22 treatment liability. The city argues that Briscoe’s suit 23 was properly dismissed not because it was precluded but 24 because the Supreme Court’s Ricci mandate itself supplied 2515 the strong basis in evidence of disparate-treatment 1 liability (for not certifying the results). 2 The dicta contemplating a disparate-impact standard 3 symmetrical to the disparate-treatment standard established 4 in the holding is perhaps attributable to a simple logical 5 error. The sentence does not present a holding but rather a 6 conclusion--an apparent logical truth--derived from the 7 holding: “ [I]n light of our holding today it should be clear 8 that the City would avoid disparate-impact liability based 9 on the strong basis in evidence that, had it not certified 10 the results, it would have been subject to disparate11 treatment liability.” 129 S. Ct. at 2681 (emphasis added). 12 When simplified into a conditional statement, this 13 conclusion resembles the converse of--and shares some of the 14 language from--the only express holding in Ricci , 129 S. Ct. 15 at 2677 (“We hold only that, under Title VII, before an 16 employer can engage in intentional discrimination for the 17 asserted purpose of avoiding or remedying an unintentional 18 disparate impact, the employer must have a strong basis in 19 evidence to believe it will be subject to disparate-impact 20 liability if it fails to take the race-conscious, 21 discriminatory action.”), but it has no actual logical 227At one point, the Court broadly describes the case as resolving any conflict between disparate-treatment and disparate-impact claims: Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. . . . *** For the foregoing reasons, we adopt the strong-basis-in-evidence standard as a matter of
16 relationship to the holding. 1 In any event, we see no way to reconcile the dicta, on 2 which the city’s argument relies, with either the Court’s 3 actual holding in Ricci or long-standing, fundamental 4 principles of Title VII law: 5 First, all other indications in the opinion are of a 6 holding limited to formulation of a standard for disparate7 treatment liability: 8 We hold only that, under Title VII, before an 9 employer can engage in intentional discrimination 10 for the asserted purpose of avoiding or remedying 11 an unintentional disparate impact, the employer 12 must have a strong basis in evidence to believe it 13 will be subject to disparate-impact liability if 14 it fails to take the race-conscious, 15 discriminatory action. 16 17 Id. at 2677 (emphasis added). The city’s argument finds 18 arguable support in wording that leads up to this holding 19 (set out in the margin). 7But the context discusses 20statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII. Id. at 2676.

8The surrounding context clearly limits the broader language quoted in note 7, ante , to an employer’s ability to discard test results: [T]he standard appropriately constrains employers’ discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability . . . . *** Restricting an employer’s ability to discard test results(and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII’s express protection of bona fide promotional examinations. *** [O]nce [a] process has been established and employers have made clear their selection criteria, they may not then invalidate the test results . . . . absent a strong basis in evidence of an impermissible disparate impact

. . . . Id. at 2676-77 (emphases added).

9Earlier, the court summarized its conclusion: We conclude that race-based action like the City’s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the
17 “[r]estricting an employer’s ability to discard test 1 results”--and is thus limited to the express holding. 8 In 2 any event, the Court’s precise formulation of its holding 3 (corroborated elsewhere in the majority opinion, 9and by 4action, it would have been liable under the disparate-impact statute. Id. at 2664.

10Justice Alito frames the issue: The question . . . concerns . . . when an employer justifies an employment decision . . . on the ground that a contrary decision would have created a risk of disparate-impact liability . The Court holds--and I entirely agree-- that concern about disparate-impact liability is a legitimate reason for a decision of the type involved here only if there was a substantial basis in evidence to find the tests inadequate. Id. at 2683 ( Alito, J. , concurring) (emphases added and internal quotation marks omitted). In her dissent, Justice Ginsburg frames her proposed holding, which is also limited to a one-way approach: I would therefore hold that an employer who jettisons a selection device when its disproportionate racial impact becomes apparent does not violate Title VII’s disparate-treatment bar automatically or at all, subject to this key condition: The employer must have good cause to believe the device would not withstand examination for business necessity. Id. at 2699 (Ginsburg, J. , dissenting) (emphasis added). Justice Scalia raises the larger question of whether the disparate-impact provisions are consistent with the Equal Protection Clause, id. at 2682 (Scalia, J. , concurring), but does not discuss the scope of the Court’s holding.
18 concurring and dissenting opinions 10 ) supersedes any dicta 1 arguably to the contrary. 219 Second, the question that Ricci answers for disparate1 treatment claims has already been answered for claims of 2 disparate impact. Clarification was needed, which Ricci 3 supplied, as to when an act that would otherwise trigger 4 disparate-treatment liability is excusable due to concern 5 over disparate impact. This is because the subsection that 6 governs disparate-treatment claims, 42 U.S.C. § 2000e-2(a), 7 provides no clarification as to what informs the 8 “discriminatory intent or motive” analysis. SeeWatson v. 9 Fort Worth Bank & Trust , 487 U.S. 977, 986 (1988). But the 10 corresponding question for a disparate-impact claim--when an 11 employment practice that would otherwise trigger disparate12 impact liability is excusable due to concern over disparate 13 treatment--is answered by the statutory definition of the 14 claim: Conduct that is “job related” and “consistent with 15 business necessity” is permissible even if it causes a 16 disparate impact (unless there is an “alternative employment 17 practice” that would reduce the disparate impact, which the 18 employer refuses to adopt). § 2000e-2(k)(1). There is no 19 need to stretch Ricci to muddle that which is already clear. 20 Third (and relatedly), these disparate-impact 2111The doctrine originated from case law, seeGriggs v. Duke Power Co. , 401 U.S. 424 (1971), but was later codified by the Civil Rights Act of 1991, see § 2000e-2(k) (1).

12Although four justices dissented in Ricci , 129 S. Ct. at 2689 (Ginsburg, J. , dissenting) (joined by Justices Stevens, Souter, and Breyer), the dissenting opinion did not mention the dicta from the majority opinion contemplating that the city might “avoid [future] disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability,” 129 S. Ct. at 2681 (majority opinion).
20 parameters are statutory, 11unlike the contours of a 1 disparate-treatment claim, which are predominantly supplied 2 by case law. We would expect that any holding that is meant 3 to shape the contours of a disparate-impact claim would cite 4 and quote the statute, and discuss the interplay between the 5 text and the new principle. (We would also expect the 6 pronounced disagreement 12that has accompanied previous 7 revisions of settled disparate-impact principles. See, 8
e.g. , Wards Cove Packing Co. v. Atonio , 490 U.S. 642 9 (1989).) 10 Fourth, it is difficult to see how a “strong basis in 11 evidence” can be established for a disparate-treatment 12 claim. The city avoids the issue by the narrow argument 13 that a court judgment satisfies this burden; but it fails to 14 consider what would suffice otherthan a court’s mandate. 1513See, e.g. , Joseph A. Seiner and Benjamin N. Gutman, Does Ricci Herald a New Disparate Impact? , 90 B.U. L. Rev. 2181, 2204-09 (2010) (interpreting this sentence in Ricci as establishing a new affirmative defense to disparate-impact liability--similar to qualified-immunity--based upon a complicated, recursive application of Ricci ’s holding). The theory is intriguing, but is inconsistent with the unavailability of a good-faith defense for disparate-impact liability. SeeRicci , 129 S. Ct. at 2682 (Scalia, J. , concurring).
21 And the city’s argument, framed that way, differs little 1 from nonparty preclusion, which is plagued by the issues 2 discussed above. Yet it is hard to see how one can adduce a 3 “strong basis in evidence” that oneself will later act with 4 “discriminatory intent or motive.” SeeWatson , 487 U.S. at 5 986. Showings other than a court mandate are conceivable, 13 6 but they would be fiendishly complicated, and therefore 7 unsuitable for a conduct-guiding standard. In contrast, the 8 “strong basis in evidence” standard that the majority 9 opinion in Ricci explicitly establishes to evaluate whether 10 an employer can engage in disparate treatment employs the 11 quantitative metrics of disparate-impact law. Unlike 12 disparate-treatment liability, in which intent is a core 13 consideration and for which consistent standards are simply 14 impractical, disparate-impact liability involves 15 quantitative metrics that resonate with an objective “strong 16 basis in evidence” standard. SeeGulino v. N.Y. State Educ. 1722 Dep’t , 460 F.3d 361, 382 (2d Cir. 2006). 1 Fifth, the “strong basis in evidence” standard, which 2 the majority opinion in Ricci expressly applies to 3 disparate-treatment claims under Title VII, 129 S. Ct. at 4 2677, was borrowed from equal protection case law that 5 analyzed laws with classifications based on race, id. at 6 2675-76; see, e.g. , Richmond v. J. A. Croson Co. , 488 U.S. 7 469, 500 (1989), and thus neatly extends to statutory claims 8 for intentional discrimination. In contrast, neutral laws 9 with “a disproportionately adverse effect upon a racial 10 minority” are outside the purview of the Equal Protection 11 Clause. Pers. Adm’r of Mass. v. Feeney , 442 U.S. 256, 272 12 (1979); see alsoRicci , 129 S. Ct. at 2683 (Scalia, J. , 13 concurring) (“[T]he war between disparate impact and equal 14 protection will be waged sooner or later, and it behooves us 15 to begin thinking about how--and on what terms--to make 16 peace between them.”); id. at 2700 (Ginsburg, J. , 17 dissenting) (“The Equal Protection Clause . . . prohibits 18 only intentional discrimination; it does not have a 19 disparate-impact component.”). We cannot expect that 20 Ricci ’s express holding would apply symmetrically to two 21 doctrines that by nature are asymmetrical. 2223 Finally, extending the express holding in Ricci to a 1 disparate-impact claim would seem to be unnecessary. An 2 employer seeking to protect itself from the interplay 3 between disparate-impact and disparate-treatment liability 4 needs only the guidance from the express holding of Ricci

. 5

*** 6 The Ricci opinion anticipated this case, and discounted 7 the idea that the city would suffer the whipsaw effect that 8 our analysis justifies. To rule for the city, we would have 9 to conclude that the Supreme Court intended to effect a 10 substantial change in Title VII disparate-impact litigation 11 in a single sentence of dicta targeted only at the parties 12 in this action. 13
14

**III** 15 We are sympathetic to the effect that this outcome has 16 on the city, which has duly certified the test as ordered by 17 the Supreme Court but now must defend a disparate-impact 18 suit. The City of Birmingham faced the same issue in 19 Martin . Any employer that intentionally discriminates-- 20 thinking there is a strong basis in evidence of disparate21 impact liability--will face the same issue if it loses a 2214One could argue--and the city does, Appellee Br. at 22--that this case is different from the other examples: the SupremeCourt ordered it to certify thislist for this exam. But that is just an iteration of the untenable preclusion argument. 24 disparate-treatment suit. 14 1 The solutions already exist. First, an employer can 2 seek to join all interested parties as required parties. 3
SeeFed. R. Civ. P. 19. The interested parties here were 4 readily identifiable: The city could have joined all test5 takers prior to the district court’s original decision. If 6 Briscoe had been a party, the Supreme Court’s decision would 7 have precluded this suit. Second, an employer can use the 8 expedient provided by Congress, 42 U.S.C. § 2000e-2(n). The 9 city could have moved, prior to the district court’s 10 original ruling, for compliance with the notice and 11 opportunity-to-object requirements of § 2000e-2(n), which 12 would have permitted the litigated judgment to have 13 preclusive effect even over nonparties. 14 The Ricci plaintiffs are amici in this case. (At the 15 time of oral argument, Ricci was ongoing in the district 16 court and, judging by the docket sheet, was as contentious 17 as ever; but the parties ultimately settled on July 27, 18 2011. SeeNew Haven Firefighters Settle Claims of Racial 1925 Bias , N.Y. Times, July 28, 2011.) They have a fair claim to 1 a clarification. Although we hold that Briscoe’s claim can 2 proceed, the Ricci plaintiffs of course remain entitled to 3 the full fruits of the Supreme Court judgment that they 4 obtained

. In order to give effect to bedrock principles of 5 nonparty preclusion as well as to the Supreme Court’s order 6 to certify the results, we limit Briscoe’s equitable relief 7 insofar as it may interfere with the relief--present and 8 future--afforded to the Ricci plaintiffs by the 9 certification of the exam results. (This caveat may be 10 superfluous, because Briscoe has repeatedly confirmed that 11 he seeks relief that is fully consistent with the Supreme 12 Court’s judgment. SeeAppellant Br. at 9-10; Reply Br. at 13 21-22; Joint Appendix at 134-35.) 14
15
**CONCLUSION** 16 This case is the first in our Circuit to require a 17 precedential examination of Ricci v. DeStefano , 129 S. Ct. 18 2658 (2009). As we have shown, we cannot reconcile all of 19 the indications from the Supreme Court in Ricci . After a 20 careful review of that decision and relevant nonparty 21 preclusion and Title VII case law, we conclude that 2226 Briscoe’s claim is neither precluded nor properly dismissed. 1 Ricci did not substantially change Title VII disparate2 impact litigation or preclusion principles in the single 3 sentence of dicta targeted at the parties in this action. 4 We follow the Court’s clear explication of its limited 5 holding. 6 Accordingly, we vacate the judgment of the district 7 court and remand for further proceedings consistent with 8 this opinion. But we express no view as to whether other 9 issues raised below may warrant dismissal of the action, 10 including relevant statutes of limitations, the doctrine of 11 laches, or the unavailability of the requested relief 12 because of Title VII’s anti-alteration provision (42 U.S.C. 13 § 2000e-2(l)). 14 15