Devlin v. Scardelletti, 536 U.S. 1, 21 (2002)

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

Scalia, J., dissenting

The Court does dispute whether there is any "value" in requiring nonnamed class members who object to the settlement to intervene in order to take an appeal. Ante, at 12. In my view, avoiding the reduction to indeterminacy of the hitherto clear rule regarding who is a party is "value" enough. But beyond that, it makes sense to require objectors to intervene before appealing, for the reason advanced by the Government: to enable district courts "to perform an important screening function." Brief for United States et al. as Amici Curiae 23. For example, when considering whether to allow an objector to intervene, a district court can verify that the objector does not fall outside the definition of the settlement class and is otherwise entitled to relief in the class action, that the objection has not already been resolved in favor of the objector in the approved settlement, and that the objection was presented in a timely manner. Id., at 23-24. The Court asserts that there is no "value" to these screening functions because a court of appeals can pass on those matters just as easily, and in any event an objector who is unable to obtain relief from the class settlement will not seek to appeal "with any frequency," as he "stands to gain nothing by appeal." Ante, at 13.

As to the last point: The person who has nothing to gain from an appeal also had nothing to gain from filing his objection in the first place, but was undeterred (as many are), see, e. g., Shaw v. Toshiba American Information Systems, Inc., 91 F. Supp. 2d 942, 973-974, and nn. 17-18 (ED Tex. 2000). The belief that meritless objections, undeterred the first time, will be deterred the second, surely suggests the tri-ability of the ordinary nonnamed class member to intervene for purposes of appeal. Petitioner was not the ordinary nonnamed class member seeking intervention for purposes of appeal. He moved to intervene generally, Brief for Petitioner 6, despite having rejected invitations to participate in the litigation until after the settlement was preliminarily approved.


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