Devlin v. Scardelletti, 536 U.S. 1, 19 (2002)

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Cite as: 536 U. S. 1 (2002)

Scalia, J., dissenting

ment as though he were a party." Because our "well-settled" rule allows only "parties" to appeal from a judgment, petitioner may not appeal the class settlement.3

Second, the Court contends that petitioner should be considered a party to the judgment because he filed an objection to the class settlement. We have already held, however, that filing an objection does not make one a party if he does not also intervene. Marino, supra, at 304.

II

The most pernicious aspect of today's decision, however, is not its result, but its reasoning. I mentioned in a recent dissent the Court's "penchant for eschewing clear rules that might avoid litigation," US Airways, Inc. v. Barnett, 535 U. S. 391, 412 (2002). Today's opinion not only eschews such

3 The Court contends that those in privity with the parties to a judgment are "often allowed by other courts" to appeal by mere virtue of the fact that they are bound by the judgment. Ante, at 11 (citing 5 Am. Jur. 2d 265 (1995)). I should think that the significant datum on this point is not that such appeals have been "often allowed by other courts," but that they have never been allowed by this Court. Indeed, the "other courts" whose opinions are cited by the authority on which the Court relies consist entirely of state courts, with the exception of one federal case decided before our decision in Marino v. Ortiz, 484 U. S. 301 (1988) (per curiam), which affirmed the "well-settled" rule that in federal court "only parties to a lawsuit . . . may appeal an adverse judgment." Id., at 304. While this difference between the procedures of federal and state courts seemingly escapes the Court's attention, it was well enough recognized (and the clear federal rule acknowledged) in the very next paragraph of the American Jurisprudence annotation on which the Court relies: "Caution: Applicable rules of procedure may bar a nonparty from taking an appeal notwithstanding his or her interest in the subject matter of the case. Thus, the United States Supreme Court has, under the Federal Rules of Appellate Procedure, rejected the principle of permitting appeal by a nonparty who has an interest affected by the trial court's judgment, stating that the better practice is for such nonparty to seek intervention for the purposes of appeal." 5 Am. Jur. 2d, Appellate Review 265, at 40 (citing Marino, supra).

19

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