O'CONNOR, J., dissenting

480 U. S.

understood facts. . ."). The need for a rule so difficult of application outside the civil damages context is, in my view, dubious. The Court has determined that fairness to the defendant, as well as public policy, dictates that individual government officers ought not be subjected to damages suits for arguable constitutional violations. Harlow v. Fitzgerald, 457 U. S. 800, 807 (1982) (citing Butz v. Economou, 438 U. S. 478, 506 (1978)). But suppression of illegally obtained evidence does not implicate this concern.

Finally, I find the Court's ruling in this case at right angles, if not directly at odds, with the Court's recent decision in Griffith v. Kentucky, 479 U. S. 314 (1987). In Griffith, the Court held that "basic norms of constitutional adjudication" and fairness to similarly situated defendants, id., at 322, require that we give our decisions retroactive effect to all cases not yet having reached final, and unappealable, judgment. While the extent to which our decisions ought to be applied retroactively has been the subject of much debate among Members of the Court for many years, id., at 320– 326, there has never been any doubt that our decisions are applied to the parties in the case before the Court. Stovall v. Denno, 388 U. S. 293, 301 (1967). The novelty of the approach taken by the Court in this case is illustrated by the fact that under its decision today, no effective remedy is to be provided in the very case in which the statute at issue was held unconstitutional. I recognize that the Court today, as it has done in the past, divorces the suppression remedy from the substantive Fourth Amendment right. See United States v. Leon, 468 U. S., at 905-908. This Court has held that the exclusionary rule is a "judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." United States v. Calandra, 414 U. S. 338, 348 (1974). Moreover, the exclusionary remedy is not made available in all instances when Fourth Amendment rights are implicated. See, e. g., Stone

340

O'CONNOR, J., dissenting

v. Powell, 428 U. S. 465 (1976) (barring habeas corpus review of Fourth Amendment suppression claims); United States v. Janis, 428 U. S. 433 (1976) (no suppression remedy for state Fourth Amendment violations in civil proceedings by or against the United States). Nevertheless, the failure to apply the exclusionary rule in the very case in which a state statute is held to have violated the Fourth Amendment destroys all incentive on the part of individual criminal defendants to litigate the violation of their Fourth Amendment rights. In my view, whatever "basic norms of constitutional adjudication," Griffith v. Kentucky, supra, at 322, otherwise require, surely they mandate that a party appearing before the Court might conceivably benefit from a judgment in his favor. The Court attempts to carve out a proviso to its good-faith exception for those cases in which "the legislature wholly abandoned its responsibility to enact constitutional laws." Ante, at 355. Under what circumstances a legislature can be said to have "wholly abandoned" its obligation to pass constitutional laws is not apparent on the face of the Court's opinion. Whatever the scope of the exception, the inevitable result of the Court's decision to deny the realistic possibility of an effective remedy to a party challenging statutes not yet declared unconstitutional is that a chill will fall upon enforcement and development of Fourth Amendment principles governing legislatively authorized searches. For all these reasons, I respectfully dissent.

STRINGFELLOW ET AL. v. CONCERNED NEIGHBORS IN ACTION ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 85-184. Argued January 20, 1987-Decided March 9, 1987 Respondent nonprofit organization, whose members live near a hazardous waste dumpsite, moved to intervene in a suit brought by the United States and the State of California against petitioners, who owned or operated the dumpsite, or who allegedly dumped waste there. The suit sought injunctive relief that would require petitioners to abate the release of harmful substances from the site, to take remedial steps to correct the unsafe conditions, and to reimburse the costs of bringing about the cleanup. The Federal District Court denied respondent's request to intervene as a matter of right, but granted its alternative application to become a permissive intervenor, subject to the conditions that it could not (1) assert any claim for relief not already requested by one of the original parties; (2) intervene in the cleanup costs claim; or (3) file motions or conduct its own discovery unless it first conferred with all the original parties and obtained the permission of one of them. Respondent filed an immediate appeal, protesting both the denial of intervention as of right and the restrictions imposed on permissive intervention. The Court of Appeals allowed the appeal, holding that the denial of intervention was a final appealable order within the meaning of 28 U. S. C. § 1291, despite the grant of permissive intervention.

Held: A district court order granting permissive intervention but denying intervention as of right is not immediately appealable. Such an order is not "final" in the traditional sense since it does not end the litigation. Furthermore, it does not fall within one of the narrow categories the Court has deemed final for review purposes. Pp. 374-380.

(a) The District Court order is not covered by the "collateral order" exception to § 1291, because respondent's party status as a permissive intervenor will allow it to obtain effective review of its claims on appeal from the final judgment. Although, after a long and complex trial, it might be difficult for respondent to show that the harm from the intervention order is sufficiently great to overturn the final judgment, this has little bearing on whether respondent has the right to an interlocutory appeal under the collateral order doctrine. The complained-of difficulty is the same one faced by any party subject to an adverse pretrial order. Respondent has presented no compelling evidence why the

intervention order here should be treated differently than these other orders. Pp. 375-377.

(b) The limitations placed on respondent's right to participate cannot be construed as a complete denial of intervention sufficient to render the District Court order immediately reviewable. Respondent is, in fact, a participant in the case and has alternative means for challenging the order. It is significant that none of the limitations on permissive intervention interfere with respondent's ability to raise its claims on postjudgment appeal. Pp. 377-378.

(c) The District Court order does not come within 28 U. S. C. § 1292(a)(1), which authorizes interlocutory appeals from orders "refusing... injunctions." Even assuming the order had the effect of denying injunctions sought by respondent, such a denial is appealable under § 1292(a)(1) only if the order will have a serious, perhaps irreparable, consequence and can be effectively challenged only by an immediate appeal. Respondent's right, during post-trial review, to challenge the limits on its participation renders § 1292(a)(1) inapplicable. Pp. 378379.

(d) Section 1291's finality rule protects a variety of interests that contribute to the efficiency of the legal system. The trial judge's ability to conduct efficient and orderly trials would be frustrated, rather than furthered, by piecemeal review. P. 380.

755 F. 2d 1383, vacated and remanded.

POWELL, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, BLACKMUN, STEVENS, O'CONNOR, and SCALIA, JJ., joined, and in all but Part II-B of which BRENNAN and MARSHALL, JJ., joined. BRENNAN, J., filed an opinion concurring in part and concurring in the judgment, in which MARSHALL, J., joined, post, p. 380.

David L. Mulliken argued the cause for petitioners. With him on the briefs were Robert P. Dahlquist, Barry P. Goode, Vincent Fish, Michael A. Kahn, Peter R. Taft, and G. Richard Doty.

Paul J. Larkin, Jr., argued the cause for the United States as respondent under this Court's Rule 19.6, in support of petitioners. With him on the briefs were Solicitor General Fried, Assistant Attorney General Habicht, Deputy Solicitor General Wallace, and Anne S. Almy.

Joel R. Reynolds argued the cause for respondents. With him on the briefs were Fredric D. Woocher and Carlyle W. Hall, Jr.

JUSTICE POWELL delivered the opinion of the Court.

The question before us is whether a district court order granting permissive intervention but denying intervention as of right is immediately appealable.

I

This case is part of the ongoing litigation concerning the Stringfellow Acid Pits, an abandoned hazardous waste disposal site near Glen Avon, California. Petitioners are 28 individuals, companies, or entities who formerly owned or operated the Acid Pits, or who allegedly produced or transported the wastes that were dumped at the disposal site. In 1983 the United States and the State of California filed suit against petitioners, claiming that the Acid Pits created a substantial danger to the surrounding area. The Government plaintiffs sought injunctive relief that would require petitioners to abate the release of harmful substances from the site, and to take remedial steps to correct the unsafe conditions. Both the United States and California also requested reimbursement for the costs incurred in bringing about the cleanup.

Shortly after the complaint was filed, respondent Concerned Neighbors in Action (CNA), a nonprofit organization whose members live near the dumpsite, moved to intervene in the litigation. CNA claimed that it was entitled to intervene as a matter of right pursuant to Federal Rule of Civil Procedure 24(a), because it had a substantial interest in the suit that would not be represented adequately by the existing parties.' CNA also asserted that the citizen suit provisions

Federal Rule of Civil Procedure 24 provides in part:

"(a) INTERVENTION OF RIGHT. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the... subject of the action and . . . the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.