dissenting.
In its decision holding that a neighborhood civic association and some of its members may be able to challenge a consent decree after other neighborhood residents failed in their attempt to make essentially the same challenges in prior litigation, the majority has undermined the fundamental principle of finality of judgments. Therefore I dissent.
Dodson v. Salvitti was an action filed on July 26, 1974 against the Redevelopment Authority of the City of Philadelphia and the United States Department of Housing and Urban Development and some of their officers. The plaintiffs, tenants of property which was being redeveloped, claimed that defendants failed to perform their statutory and constitutional duty to provide permanent replacement housing for them in a manner which would affirmatively promote racial integration. On January 13, 1977, two and one-half years after the inception of the action, 20 residents of the neighbor*1062hood sought to intervene, claiming intervention of right under Fed.R.Civ.P. 24(a)(2). Plaintiffs opposed the intervention on the grounds, inter alia, that the interest of the proposed intervenors was not adequately identified, and that the “intervenors have not demonstrated how their ill-defined interest in this action may be impaired if they are not allowed to intervene.” On February 7, 1977, the district court denied the motion to intervene. The proposed intervenors’ response to the plaintiffs’ memorandum in opposition was not filed until two weeks after the court’s order.
On March 4, 1977 the same 20 residents again moved to intervene in order that their response to the opposition could be considered by the court. Their second motion to intervene alleged that they sought to “protect an economic interest in the value of their homes” which would be injured by building government subsidized homes near their property. Intervention was again opposed not only by the plaintiffs but this time also by the federal defendants, all of whom again asserted the proposed intervenors did not satisfy the requirements of Rule 24(a)(2) because they did not have a legally proteetible interest. They also alleged that the intervention request was untimely because “it was unreasonable to believe that proposed intervenors were unaware of [the case] until recently, particularly in light of the media coverage received by this case and its predecessors.” Memorandum of Federal Defendants in Opposition to (Renewed) Motion to Intervene as Defendants at 3. This second motion to intervene was denied by the district court who held that intervention by the proposed intervenors was not warranted both because they “failed to assert an interest in the lawsuit sufficient to warrant intervention as of right” and because their motion was untimely. In connection with the latter holding the court ruled:
[T]he proposed intervenors in this case knew or should have known from the time this litigation was commenced that the ultimate disposition of these proceedings might well effect the interests which they now seek to protect. Nonetheless, they chose to remain inactive and ignored this litigation until approximately two and one half years after its commencement, long after various alternative settlement possibilities had been fully explored. Finally, any claim on the part of these proposed intervenors that their dilatory action in regard to this litigation was the result of their belief that their claimed interests were being protected by defendants is untenable. There is simply no duty on the part of any of the defendants to protect against the alleged effect that the settlement agreement will have upon the interests claimed by these proposed intervenors.
Dodson v. Saivitti, 77 F.R.D. 674, 677 (E.D. Pa.1977).
On appeal by the proposed intervenors, this court affirmed the action of the district court, and the Supreme Court of the United States denied their application for a writ of certiorari, and their subsequent request for rehearing. 571 F.2d 571 (3d Cir.) (memorandum decision), cert. denied, 439 U.S. 883, 99 S.Ct. 222, 58 L.Ed.2d 195, reh. denied, 439 U.S. 998, 99 S.Ct. 604, 58 L.Ed.2d 673 (1978). On September 16, 1977, the district court approved a consent decree entered into between the parties to the litigation which required the construction of 14 to 18 low-income housing units in or near the center of the Society Hill area to house the. displaced tenants.
The group of neighborhood residents who opposed the subsidized low income housing which allegedly would contribute to racial integration in the neighborhood persisted in their efforts to halt construction of those units. Using the same counsel and alleging essentially the same claims which the proposed intervenors sought to assert in the Dodson suit, they filed the suit sub judice, this time denominating as plaintiffs the Society Hill Civic Association and 13 residents of the neighborhood, none of whom had previously joined the motions to intervene in Dodson. The same government agencies are named as defendants along with their current officers. Four of the original Dodson plaintiffs moved for and were granted leave to intervene as defendants.
*1063This suit was assigned to the same district judge who had presided over the proceedings in Dodson and who was therefore intimately familiar with the circumstances surrounding the proposed intervention. Following completion of the pleading stage, the court granted defendants’ motion for judgment on the pleadings. The court relied on “the doctrine that a judgment entered in a court is normally not subject to collateral attack” and held that since Society Hill Civic Association and its co-plaintiffs failed to assert their interests in the Dodson litigation although they either knew or should have known that their interests were at stake, they could not collaterally attack the Dodson judgment.
Initially, I note that even under the majority’s view that the dismissal should be overturned and the case remanded, I see no justification for the majority’s treatment of the merits of plaintiffs’ claims, which the majority admits the parties have not illuminated in their briefs. Typescript Op. at 14. In reading the record of the judge’s ruling on the motion to dismiss which was delivered orally, it is apparent that the judge dealt with the legal sufficiency of the claims as a subsidiary matter. After devoting more than 17 of the 21 pages of transcript to the collateral attack issue, the judge stated, “In view of this ruling, it is unnecessary for me to examine the sufficiency of each and every averment in the complaint.” The judge then briefly commented on his views of the merits of some of the claims which were asserted in the complaint. In spite of the fact, as the majority admits, that it has “virtually no additional analysis by the parties” beyond the pleadings, it nonetheless embarks on a determination of complex statutory issues. I believe this is inappropriate, particularly in light of the fact that the district court may determine on remand that the plaintiffs did in fact delay unreasonably in failing to file a timely motion to intervene. Since the district court may never reach the merits, I see no reason for the majority to have done so.
In holding that plaintiffs may be able to collaterally attack a final judgment, the majority appears to have accepted appellants’ claim that they are not bound by the Dodson consent decree because they were not parties to that suit. Appellants relied on the language of the decision in Hansberry v. Lee, 311 U.S. 32, 40, 61 S.Ct. 115, 117, 85 L.Ed. 22 (1940), “that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.” If that were in fact the black letter law which it appears to be, then, of course, the trial court would have been in error in holding that appellants were not free to reassert claims resolved by the consent decree in the prior litigation.
There are several well-established exceptions to the general principle that nonparties are not precluded by prior litigation. The most well-recognized exception is that which has traditionally been referred to as affecting persons who are in “privity” with the parties to the prior litigation, leading to the formulation of the res judicata rule: “A person who is not a party but who is in privity with the parties in an action terminating in a valid judgment is bound by and entitled to the benefit of the rules of res judicata.” Restatement of Judgments § 83 (1942). See United States v. Moser, 266 U.S. 236, 241, 45 S.Ct. 66, 67, 69 L.Ed. 262 (1924); Southern Pacific R.R. v. United States, 168 U.S. 1, 48-49, 18 S.Ct. 18, 27, 42 L.Ed. 355 (1897); Mid-Continent Casualty Co. v. Everett, 340 F.2d 65, 69 (10th Cir. 1965). The traditional definition of a “privy” was one who claimed an interest in the subject-matter affected by the judgment through or under one of the parties, /. e. either by inheritance, succession or purchase, and was restricted to situations involving transfer of property. See M. Rosenberg, J. Weinstein, H. Smit, H. Korn, Elements of Civil Procedure 1129 (3d ed. 1976). This technical view of privity has given way to a more pragmatic approach, one looking to the relationship between the nonparty and the party to determine whether the judgment involving the party may justly be conclusive upon the one who is not a party. See F. James & G. Hazard, *1064Civil Procedure 576 (2d ed. 1977) (hereinafter James & Hazard). See also, Developments in the Law-Res Judicata, 65 Harv.L. Rev. 818, 855-56 (1952). As stated by the late Judge Goodrich, “privity” is “merely a word used to say that the relationship between the one who is a party on the record and another is close enough to include that other within the res judicata.” Bruszewski v. United States, 181 F.2d 419, 423 (3d Cir.) (concurring), cert. denied, 340 U.S. 865, 71 S.Ct. 87, 95 L.Ed. 632 (1950).
Plaintiffs in this litigation have never asserted that they were not in privity with the proposed Dodson intervenors. On the contrary, they admit that they were in “privity.” As previously noted, counsel for plaintiffs-appellants in this case represented the proposed intervenors in the Dodson case. In the brief of plaintiffs-appellants filed in this court in this case, they make the candid admission as follows: “Appellants are in privity of interest only with those who have previously sought to participate in the litigation. That includes their neighbors and members of the Society Hill Civic Association.” Brief for Appellants at 12 (emphasis added). At the oral argument before this court, the following colloquy took place:
Judge Rosenn: Mr. Lowrey I’m not sure that I heard you a moment ago. Did I understand you to say that you do concede that the parties are in privity with the parties in the Dodson case?
Lowrey: I think they are in a sense. They all live in the same neighborhood. They have virtually identical interests. If the parties in the Dodson case had been permitted to intervene in that litigation and had they lost on the merits, I would not have brought another lawsuit for them because I would have regarded that as a preclusion of any further litigation of the matter. Everybody couldn’t intervene in the Dodson case.
Later in the argument, counsel admitted that the substantive claims he raised in the Dodson case were essentially the same raised in this suit.
It follows from this admitted privity relationship that if the proposed intervenors in Dodson would have been precluded by virtue of the Dodson judgment from bringing this lawsuit, then plaintiffs also must be precluded from bringing this lawsuit. Inexplicably, the majority never deals with the admission of privity, nor does it ever suggest that the Dodson plaintiffs could have renewed their challenge to the government subsidized housing by filing a new suit following our rejection of their claim that they had a right to intervene in the prior suit. Even the majority concedes that judgments must have some finality, at least as to the proposed albeit unsuccessful intervenors.
The second category of established exceptions to the rule that only parties will be bound by a judgment arises when the non-party’s interest has been represented by another who is authorized to act as a party on his or her behalf. This is closely related to the contemporary view of privity. Representation, for this purpose, is not limited to instances where there has been an express authorization to act on behalf of the nonparty. The appropriate question to be posed is whether the relationship between the person who was a party and the person whom s/he is treated as representing is such that the absentee’s interests can be regarded as having been fairly represented by the party. James & Hazard, at 575. In this case, the reply is evident. Counsel for the two groups of litigants is the same; the interest they assert is the same; the claims they assert are identical. Thus, there is no reason why the same claim preclusion applicable to the Dodson proposed intervenors should not be applied to plaintiffs.
This reasoning has been used to preclude members of a trade association from asserting the invalidity of an Interstate Commerce Commission refund order that had previously been challengái unsuccessfully by other members of the same trade association. In rejecting the attempt of the carriers in the second litigation to claim that the Commission’s refund order was entered in excess of its jurisdiction, the Seventh Circuit commented:
*1065Admittedly, some of the defendant-carriers whose appeals have been consolidated with the instant appeal were not named plaintiffs in the Colorado action and thus an argument might be made that, as to them, res judicata does not apply. However, as argued by the plaintiff-appellee, those defendant-carriers who were not named plaintiffs in the Colorado proceedings were undoubtedly in privity with the 60 named carrier-plaintiffs, particularly since all of the carriers involved were members of the Middlewest Motor Freight Bureau, Inc., and therefore are still bound under the doctrine of res judicata.
Aluminum Co. of America v. Admiral Merchants Motor Freight, Inc., 486 F.2d 717, 720-21 (7th Cir.), cert. denied, 414 U.S. 1113, 94 S.Ct. 843, 38 L.Ed.2d 739 (1973) (footnotes omitted).
Thus even a challenge that went to the jurisdictional authority of the order being enforced against a nonparty was held to be precluded. Although the Seventh Circuit termed the relationship between the first and second group of carriers to have been one of “privity”, this was not privity in the narrow sense but instead appears to have been a description of a relationship between party and nonparty based on representation of the nonparty’s interests.
Under either of these two categories of exceptions to the nonpreclusion of nonparty rule, these plaintiffs would be precluded from attacking the prior judgment. Even in the absence of either “privity” or representation by a party, nonparties may be precluded by a prior judgment if it is equitable to do so. The grounds for equitable preclusion have been described by Professors James and Hazard as follows:
There are numerous and diverse decisions that have denied opportunity to maintain an action or grounds not coming within any of the rules of preclusion so far discussed. They involve the following circumstances: (1) There had been a prior action involving the same claim or affecting the same property as is involved in the second action; (2) The party seeking to maintain the second action knew of the first action and could then have asserted the claim he now seeks to assert, either by intervening in the first action or by bringing in as a [party] thereto the person against whom he now asserts his claim; (3) The person against whom the claim is asserted in the second action was apparently relying on the first action to be dispositive of the controversy out of which the claim arises; and (4) The party asserting the claim in the second action knew, or reasonably should have known, of that reliance.
James & Hazard, at 598. Each of the circumstances is present in this case, since the prior action affected the same claim as plaintiffs sought to assert here; plaintiffs could have asserted their claim by a timely motion to intervene; plaintiffs concededly knew of the action before its final termination; the parties settled the Dodson action in the justifiable belief that no further litigation was contemplated by silent bystanders following the Supreme Court’s denial of certiorari from our order affirming the denial of intervention, and plaintiffs should have been aware of that reliance.
Equitable preclusion is a concept particularly appropriate for use in cases involving social policy issues or statutes. The older and traditional concept of res judicata evolved in a society where most litigation occurred in the context of a single claim and single parties. As social welfare programs have expanded and statutes have been enacted giving rights to broad groups of persons, the judicial process has accommodated that change by expanding the concept of claim preclusion. One of the most widely used mechanisms shaped for that purpose is, of course, the class action. In this case, however, the proposed intervenors in Dodson carefully sidestepped that procedure by moving to intervene only on their own behalf. In that manner, they may have hoped to avoid the preclusive effect of any adverse judgment, whether on their intervention motion or on the merits, leaving it to another group of neighbors to be free to assert the same claims another time.
*1066In similar circumstances, courts have been keenly sensitive to the need for insuring the finality of consent decrees aimed at affording relief to victims 'of racial or employment discrimination. In Smith v. Missouri Pacific Railroad Co., 615 F.2d 683 (5th Cir. 1980), the Fifth Circuit affirmed a district court’s denial of a Rule 60(b) motion brought by white employees seeking to attack a consent agreement affording relief to black employees claiming employment discrimination. The court noted that the white employees brought the motion two years after settlement after failing to attempt intervention during that period. It stated, “There must be an end to litigation at some point. It would defeat both the aim of finality and the integrity of the settlement process in civil rights actions if this action could be revived and the settlement reevaluated at any time by any person-party or nonparty-who felt aggrieved . .” Id. at 685. See also, Thaggard v. City of Jackson, 618 F.2d 272 (5th Cir. 1980) (per curiam) (dismissal of reverse discrimination suits challenging hiring and promotional practices of city as impermissible collateral attack against two lawfully entered consent decrees); Dennison v. City of Los Angeles Department of Water and Power, 22 EPD ¶ 30, 575, 21 FEP 1120 (C.D. Cal.1979) (court dismissed as impermissible collateral attack a suit challenging consent decree calling for increased minority hiring to achieve racial balance); Prate v. Freedman, 430 F.Supp. 1373, 1374-75 (W.D.N.Y.), aff’d mem., 573 F.2d 1294 (2d Cir. 1977), cert. denied, 436 U.S. 922, 98 S.Ct. 2274, 56 L.Ed.2d 765 (1978).
It should be emphasized that there is nothing in the decision of Hansberry v. Lee which would prevent the preclusive effect of the Dodson consent decree on plaintiffs in the circumstances present here. In that case, the Court held that it would violate due process to have bound the nonparties to a prior decree because of the “potentially conflicting interests” among the representatives and those they sought to bind. Here, of course, there is no actual or potential conflict of interest between the Dodson potential intervenors and these plaintiffs. In fact, the Court in Hansberry recognized that nonparties may be bound:
It is familiar doctrine of the federal courts that members of a class not present as parties to the litigation may be bound by the judgment where they are in fact adequately represented by parties who are present, or where they actually participate in the conduct of the litigation in which members of the class are present as parties, ... or where the interest of the members of the class, some of whom are present as parties, is joint, or where for any other reason the relationship between the parties present and those who are absent is such as legally to entitle the former to stand in judgment for the latter.
311 U.S. at 42-43, 61 S.Ct. at 118 (citations omitted) (emphasis added).
The majority, in its recognition that an “unjustified failure to intervene can serve to bar a later collateral attack,” at 1052, apparently concedes the principle enunciated by the district court in Oburn, a decision which we affirmed, that a party who has had the opportunity to timely contest the validity of the final judgment rendered in the prior suit will be bound by the prior judgment. Oburn v. Shapp, 70 F.R.D. at 549, 552, aff’d mem., 546 F.2d 418 (3d Cir. 1976), cert. denied, 430 U.S. 968, 97 S.Ct. 1650, 52 L.Ed.2d 359 (1977).1 There is no *1067basis in the record for any finding or inference that plaintiffs did not have an opportunity to file a timely motion to intervene. The majority suggests that plaintiffs may be excused for their failure to make a timely motion to intervene in Dodson on the basis of the allegation in the complaint that the members of the Society Hill Civic Association were not apprised of the Dodson lawsuit until late in 1976. This is a non sequitur, confusing two separate time periods in two different contexts.
The proposed Dodson intervenors also had sought to justify their tardiness in failing to file an earlier motion to intervene because they allegedly did not know of the Dodson lawsuit earlier. The district court in Dodson found the proposed intervenors “knew or should have known” of that litigation and therefore their motion, when filed, was untimely. Either these plaintiffs are in the same position as the proposed intervenors, in which case the dismissal of their collateral attack in this suit was justified, or they were not in the same, position, in which case they could not have relied on representation by the Dodson intervenors and should have filed their own motion to intervene in the Dodson litigation, setting forth reasons applicable to them to excuse their late motion. The majority gives no reason for excusing plaintiffs from having failed to seek intervention in Dodson, which it agrees is the better course. It merely states that once the other Society Hill residents moved to intervene, “the Association’s failure to act may conceivably be excused on the ground that these other residents would adequately protect the Association’s interests in the litigation.” At 1053, n.6. Even if we agree that the Association was not required to file a contemporaneous motion to intervene in Dodson, once the motion of the proposed intervenors was rejected as untimely, these plaintiffs knew that the intervenors no longer could “adequately protect” their interests. They have offered absolutely on reason in this suit, either before the district court or before us, to excuse their failure to attempt to intervene in the Dodson suit at that time. Their complaint allegation, on which the majority relies, simply does not go to this issue.
Had plaintiffs followed the appropriate course and moved to intervene in Dodson, there are a number of different results which might have ensued. If plaintiffs had moved to intervene in Dodson no earlier than did the proposed intervenors and offered no additional explanation for their dilatoriness, their motion to intervene may have been also rejected because it was filed untimely. Then plaintiffs would also be barred from bringing this action, as I assume the majority concedes the Dodson proposed intervenors would be. Apparently the majority does not accept the extreme position espoused by plaintiffs’ counsel that even the Dodson proposed intervenors would not be barred from maintaining this suit because the merits of their claim were never reached.
Had these plaintiffs moved to intervene in Dodson and their motion to intervene had been rejected because they lacked sufficient legal interest, since they were in the identical position as the proposed Dodson intervenors, then plaintiffs would be barred from bringing this suit because the issue of their right to maintain the action would have been determined adversely against *1068them. In fact, if plaintiffs are in privity with the Dodson intervenors, as I believe they are, then they are already bound by that adverse issue determination. In either event, the prior judgment operates to bar plaintiffs, although it may have been erroneous. Restatement of Judgments § 48, Comment a, at 191 (1942). See also Clark v. Payne, 390 F.2d 647 (3d Cir. 1968); Thomas v. Consolidation Coal Co., 380 F.2d 69, 80 (4th Cir.), cert. denied, 389 U.S. 1004, 88 S.Ct. 562, 19 L.Ed.2d 599 (1967).
The one possibility ignored by the majority is that these plaintiffs might have filed a timely motion to intervene in Dodson. Had they chosen that procedure, we simply do not know nor can we predict how the district court would have disposed of that timely motion. It is possible their motion would have been granted. Had the district court denied that motion for any erroneous reason, recourse to correct that judgment was available in this court. Therefore, under these circumstances, there is no basis to permit plaintiffs to maintain this action as a reward for their failure to file a timely motion in the Dodson case.
Although the holding of the majority may be highly detrimental to the cause of the low cost integrated housing sought to be achieved by the Dodson plaintiffs and ultimately accepted by HUD and RDA, I am concerned that its effect may be more widespread. It undermines the principle of finality of judgments; 2 it encourages potential intervenors to sit on the sidelines while others go forward to litigate their interests in the hope that an adverse judgment of their right to intervene, or maintain the action, will not adversely affect the on-lookers’ ability to maintain a separate and subsequent suit; it encourages plaintiffs or proposed intervenors to sidestep the class procedure so that others similarly situated will retain the opportunity to find a judge or judges more sympathetic to their cause; and it discourages government entities from settling litigation since they will be uncertain of the finality of the ultimate disposition notwithstanding judicial approval of the settlement. The majority gives no reason for opening Pandora’s box in this manner.
. Other courts have held that failure to timely intervene may foreclose a plaintiff from later collaterally attacking a judgment. In Prate v. Freedman, 430 F.Supp. 1373 (W.D.N.Y.), aff'd mem., 573 F.2d 1294 (2d Cir. 1977), cert. denied, 437 U.S. 922, 98 S.Ct. 2274, 56 L.Ed.2d 765 (1978), white police officers filed a separate lawsuit challenging a consent judgment which established an affirmative action plan in police department hiring. The path which the Prate plaintiffs took closely parallels the instant case. Over a year after entry of the consent decree, they attempted to intervene and reopen the suit but were denied intervention because they failed to act in a timely fashion. They then filed a separate complaint, which the court dismissed [on a 12(b) motion] as an impermissible collateral attack on a final court order. Similarly, in Black and White Children of the Pontiac School System v. School District of the City *1067of Pontiac, 464 F.2d 1030-31 (6th Cir. 1972), and McAleer v. American Telephone & Telegraph, 416 F.Supp. 435 (D.D.C.1976), collateral attacks against final judgments affording relief in a school desegregation case and a sex discrimination case were dismissed as improper. The majority seeks to distinguish Oburn and these cases from this one because the original court maintained jurisdiction over the cases. This distinction is unpersuasive because neither the proposed Dodson intervenors nor these plaintiffs will be precluded from asserting their position regarding any action to be taken with respect to the proposed housing which would affect their legitimate interests. For example, if the proposed housing will violate the zoning laws, then plaintiffs will have an opportunity to make that challenge as permitted by local law. Furthermore, if an Environmental Impact Statement is required, as plaintiffs allege, they will have another opportunity to assert that claim when HUD approves the final proposal for development of the properties.
. This principle is basic to “all systems of law that have contributed to our jurisprudence.” Developments in the Law-Res Judicata, 65 Harv.L.Rev. 818 (1952). Res judicata serves the public interest because it further operates to “save individuals and the Courts from the waste and burden of relitigating old issues,” Tillman v. National City Bank of New York, 118 F.2d 631 (2d Cir. 1941).