Petitioners Reply Brief — United Airlines, Inc. v. McDonald

EOK AKGU MENS

MAR 22 1977

shennan

| MICHAEL RODAX, JR..CLERK

IN THE

Supreme Court of the Gnited States

OcToBER TERM, 1976.

No. 76-545

UNITED AIR LINES, INC.,

Petitioner,

vs.

LIANE BUIX McDONALD,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT.

REPLY BRIEF FOR PETITIONER

UNITED AIR LINES, INC.

STUART BERNSTEIN,

JAMES W. GLADDEN, Jr.,

SusAN S. SHER,

231 South LaSalle Street,

Chicago, Illinois 60604,

Counsel for Petitioner.

Of Counsel:

MAYER, BROWN & PLATT,

231 South LaSalle Street,

Chicago, Illinois 60604.

Gunthorp-Warren Printing Company, Chicago e Financial 6-6565

TABLE OF CONTENTS.

I. Respondent’s Argument Accords No Significance to the

Trial Court's Denial of Class Action Status on the

Question of Timeliness of Intervention ............

II. Respondent’s Attacks on Petitioner’s Motives, Conduct

and Argument Are Not Sound ................+..

1.

~ - ? PP

The Right of Named Plaintiffs to Appeal

CetD GUNNS TENE oe ec cece csccccons

The No-Marriage Policy ................

Petitioner’s Failure to Consolidate ........

ee 6 rk a ke sn wee bus

The Propriety of the Trial Court’s Ruling on

SE EE Se Ra wWaco ced heeuvt nce bases:

Respondent’s Efforts to Make Known Her

PD ered Ceccntesovesevesebeetvedns

PAGE

‘ii

TABLE OF AUTHORITIES.

Cases.

American Pipe & Construction Co. v. Utah, 414 U. S.

Pe ED -caneveeeunseeenseunnednend 1, 2, 5, 6, 8, 15

Burnett v. New York Central Rr. Co., 380 U. S. 424

SD Bic ccncevdaryulessd Vebeweetedsviness 3-4, 15

Commonwealth of Pennsylvania v. Rizzo, 530 F. 2d 501

SG: GED: Cad geweoteeeaseeediticnudsascune 3

EEOC v. United Air Lines, 515 F. 2d 946 (7th Cir.

SED. s¥budansaceBhaducheueseunseaseteestaces 5

Esplin v. Hirschi, 402 F. 2d 94 (10th Cir. 1968), cert.

Ss Se ee ey Pe CE oo ceccnsccceseseves 3-4

Franks v. Bowman Transportation Co., 424 U. S. 747

SEED 60600 4n6udessevennnnd é6sewe cnnneesess 10

Knable v. Wilson, Nos. 75-1655, 1656 (D. C. Cir. March 9,

ee - 604 dcnebegecseees nbudbesandeseuntessas 16

Monarch Asphalt Sales Co. v. Wilshire Oil Co., 511 F. 2d

ee ee I I 6k. 0 bt ddbcecececensines 6

Pearson v. Ecological Science Corp., 522 F. 2d 171 (Sth

Cir. 1975), cert. denied, 425 U. S. 912 (1976) ...... 5,6

Smuck v. Hobson, 408 F. 2d 175 (D. C. Cir. 1969) .... 17

Sprogis v. United Air Lines, 444 F. 2d 1194 (7th Cir.

1971), cert. denied, 404 U. S. 991 (1971) ......... 9, 10

Sprogis v. United Air Lines, 517 F. 2d 387 (7th Cir.

SGU cheer secéeeéuensecendestcnnesaceeees 13

Stroud v. Delta Airlines, 544 F. 2d 892 (Sth Cir. 1977) .. 10

Stull v. Bayard, 75 Civ. 3782 (S. D. N. Y. January 7,

TE -wadndbacsdcedacednddévesecetcestenneses 6-7

Wolpe v. Poretsky, 144 F. 2d 505 (D. C. Cir. 1944), cert.

GaaRee TD GD. G. Vee CEOED cp cccasscccnsecccces 17

Zuber v. Allen, 387 F. 2d 862 (D. C. Cir. 1967) ...... 17

Statutes.

Title VII, Civil Rights Act of 1964, 42 U. S. C. § 2000e

GGOE p cnc ccccbcccccercccveccssesccceseoss 10, 12-13

Ped. Civ. Proc. Rule 23... cc ccc cece ccccccncsseces 6,8

Fed. Civ. Proc. Rule 24(a) .......-- 22 cece eee eecees 4

Fed. Civ. Proc. Rule 24(B) ... 0... ccc ccc cc ccccens 4

Other.

3B Moore’s Federal Practice (1976-77 Supp.) ........ 6

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1976.

No. 76-545.

UNITED AIR LINES, INC.,

Petitioner,

VS.

LIANE BUIX McDONALD,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SEVENTH CIRCUIT.

REPLY BRIEF FOR PETITIONER

UNITED AIR LINES, INC.

I.

RESPONDENT'S ARGUMENT ACCORDS NO SIGNIFICANCE

TO THE TRIAL COURT’S DENIAL OF CLASS ACTION

STATUS ON THE QUESTION OF TIMELINESS OF INTER-

VENTION.

Our position is that the trial court did not err in denying

respondent’s October 1975 petition to intervene as untimely

since respondent had been excluded from the case in December

1972 when class status was denied. We rely on American Pipe

& Construction Co. v. Utah, 414 U. S. 538, 561 (1974),

which held that the limitations period is tolled upon filing of

a class action but “only during the pendency of the motion to

strip the suit of its class character.”

2

Respondent replies that our reading of American Pipe is

“skewed,” and that—

[T}he correct rule after American Pipe is that when, as

here, an appeal from the final decision results in reversal of

the unfavorable class ruling, the statute of limitations re-

mains satisfied for the class by the timely commencement

of the class action as though the class had been correctly

permitted by the District Court. (Resp. Br. 20.)

We submit that respondent’s position is completely circular.

The issue is whether respondent was a party entitled to appeal

the adverse class ruling—i.e., should the Court of Appeals ever

have reached the issue of class denial on respondent’s appeal.

Respondent’s formulation assumes she had the same standing

to appeal the adverse class decision three years after she was ex-

cluded from the case as would the named plaintiffs and inter-

venors if they had not settled their claims but had obtained

judgment against defendant in October 1975.

Respondent's rule, in fact, makes the question of timeliness and

time limits irrelevant. If it be assumed that the Court of Appeals

could examine the class question without regard to the status

of respondent, then the issue of timeliness would 1ever be a

factor. If class denial was correct then putative class members

are out of the case for that reason; if class denial is held to

be error, then the class is reinstated. Thus the potential class

member could appeal the class denial without regard to timeli-

ness of attempted intervention or his or her status as a party.

In short, respondent contends that even though denial of class

status in December 1972 “excluded me and others like me from

this action” (McDonald Affidavit, A. 95), nonetheless her right

to appeal from the class denial upon final disposition three years

later persisted as though she were still a party to the action.

The Court of Appeals certainly did not apply respondent’s

“rule.” The Court first examined as an independent issue the

timeliness of respondent’s petition to intervene in October 1975.

We believe the majority decided that question incorrectly by

3

assuming, contrary to American Pipe, that tolling continued

aftcc the denial of class status. The point is fully discussed in

our main brief, pp. 12-15.

It was only after deciding the question of the timeliness of

intervention that the majority concluded it could examine the

trial court’s decision on class status:

Because petitioner [respondent here] was entitled to be

an intervenor and filed a timely notice of appeal from the

final order terminating the litigation, we have power to

examine the adverse class ruling. . . . (Court of Appeals

Opinion, A. 109.)

Judge Pell in dissent concluded that the petition to intervene

was not timely and was properly denied, and concluded, “Since,

in my opinion the timeliness issue is dispositive of this case, I

have not deemed it necessary to advert to the other issues raised

on this appeal.” A. 115.

Respondent turns the analysis on its head. She justifies the

majority decision on timeliness because of its decision on class.

But the Court had to find timeliness before #t could reach the

class question. The majority, we contend, was wrong on the

timeliness question, but at least it proceeded in the proper

sequence.'

Neither Burnett v. New York Central Rr. Co., 380 U. S. 424

(1965), (Resp. Br. 20, 23), nor Esplin v. Hirschi, 402 F. 2d

94 (10th Cir. 1968), cert. denied 394 U. S. 928 (1969), (Resp.

Br. 19, 22), supports the “rule” urged by respondent.

1. In Commonwealth of Pennsylvania v. Rizzo, 530 F. 2d 501

(3d Cir. 1976), intervention was denied individual white firemen

in a Title VII class action suit brought by a group of black

firemen. The unsuccessful intervenors then appealed both the denial

of intervention and the merits of the trial court’s final order coverin

hiring and promotion. The Court of Appeals upheld the

of intervention as untimely since the petition to intervene was filed

16 days after the final order. The Court then held that since the

intervention was properly denied, the merits of the trial court’s

order could not be reached. “. . . One properly denied the status

of intervenor cannot on the merits of the case [additional

citations omitted].” 530 F. 2d at 508.

4

The filing of an action in the state court in Burnett was held

to toll the limitations period under the Federal Employers’

Liability Act. This was not a class action and the Court noted

that “Petitioner did not sleep on his rights but brought an action

within the statutory period in a state court of competent jurisdic-

tion.” 380 U. S. at 429. Burnett, in fact, cuts against respondent.

The Court considered the purpose of limitations statutes as

being primarily designed to assure fairness to defendants. “More-

over, the courts ought to be relieved of the burden of trying

stale claims when a plaintiff has slept on his rights.” 380 U. S.

at 428.

The comment of the trial judge here in denying respondent's

petition to intervene is precisely to that point:

Well, in my judgment, gentlemen, this is five years now

this has been in litigation, and this lady has not seen fit to

come in here and seek any relief from this Court in any

way during that period of time, and litigation must end.

I must deny the motion. (A. 101.)

In Esplin the Court of Appeals examined the propriety of

class relief on the appeal of Hirschi, the named plaintiff. We

agree that named plaintiffs may appeal class denial after final

judgment if they have not waived that right by settling their

claims. Pet. Br. 15. It follows that if the appeal is successful,

the class is reinstated. Esplin so holds——but that is not the issue

here. The issue here is the right of a non-party to start again

a lawsuit settled by the named parties and intervenors in order to

get relief which is otherwise barred by the statute of limitations.

Respondent argues that intervention after judgment for pur-

pose of appeal is “an old and well-established procedural device.”

Resp. Br. 15. The contention is beside the point. The cases cited

by respondent concerned intervention as of right under Rule

24(a). Intervention here, if possible at all, would have to be

permissive under Rule 24(b), as the Court of Appeals recog-

nized. A. 106. The final order of dismissal did not affect Ms.

McDonald's interest with respect to the issue of the legality of

5

the no-marriage policy, since that had been decided in Sprogis

and was no longer a contested issue in Romasanta, the case

here.

The interest which Ms. McDonald sought to protect by her

intervention and appeal here was the right to obtain a remedy

within the framework of this litigation after she had delayed

her attempt to intervene for three years after class denial. That

she may lose the right to a remedy because of the passage of

time is not the kind of interest she is entitled to protect through

appeal from the final order of dismissal which simply ratified

the settlement of claims of named plaintiffs and timely inter-

venors.? What she really seeks is classic “one-way intervention,”

which the amendments to Rule 23 were designed to eliminate.

American Pipe & Construction Co. Vv. Utah, 414 U. S. 538,

547 (1974).

Had respondent petitioned to intervene at the time of class

denial she could have urged the trial court to modify the order

on class status and, if unsuccessful, could have appealed the

denial of intervention.’ The trial judge pointed this out during

hearing on the petition to intervene in October 1975. “She never

even sought to appeal that order [of December 6, 1972, deny-

ing class status]. She never sought to come in at any time and

ask for a modification.” A. 100.

We do not understand the significance of respondent’s refer-

ence to the “Erlenborn substitute” rejected by the-Senate in

1972. Resp. Br. 30. If adopted, requirements for class actions

2. “The district court order dismissing the litigation, pursuant

to the terms of the stipulation did not prejudice the nights of

individuals [potential class members] who were not parties to the

litigation at the time of dismissal.” Pearson v. Ecological Science

Corp., 522 F. 2d 171, 177 (Sth Cir. 1975), cert. denied 425 U. S.

912 (1976). Charges of “sell-out” because of settlement after class

denial were also made in Pearson. The Court held that named plain-

tiffs had no fiduciary ay Ao potential class members after class

denial. Pearson is more y discussed in our main brief, pages

13-16.

3. An order denying intervention is final and . EEOC

v. United Air Lines, 515 F. 2d 946-48 (7th Cir. 1975).

6

under Title VII would have been more restrictive than under

Federal Civil Procedure Rule 23. That it was rejected only means

that the requirements of Rule s are still applicable in Title

VII cases.

American Pipe “involve[d] an aspect of the relationship be-

tween a statute of limitations and the provisions of Fed. Rule

Civ. Proc. 23 regulating class actions in the federal courts.” 414

U. S. 538, 540. It held that the applicable limitations period was

suspended for all potential class members on the filing of a class

action but “only during the pendency of the motion to strip the

suit of its class action character.” Eleven days of the statutory

period remained after denial of class, and the motions to inter-

vene were filed on the eighth day. “. . . [I]t follows that the

motions were timely.” 414 U. S. at 561.

This must mean that if the motions were filed on the twelfth

day they would not have been timely. There is no other read-

ing possible. It establishes a clear rule, easily administered by

the district courts as they struggle with the difficulties presented

by class actions.‘

4. Respondent repeatedly refers to petitioner’s “novel

principle,” ““United’s rule,” and “United’s draconian rule.” ae Br.

13, 20, 25, 26, 29, 32, 34. We had thought the principle advocated

in our ‘brief was clearly implied in American Pipe and not a rule

of our m . “The holding in American Pipe cuts both ways.”

Monarch Asphalt Sales Co. v. Wilshire Oil Co., 511 F. 2d 1073,

1078 (10th Cir. 1975). “Under American Pipe, the intervention

does not relate back to the date of original filing by analogy to cases

under original Rule 23 brought as ‘spurious’ class actions, and the

petition must be filed within the remaining time under the statute

San meus Som Se Sie ot Be ee ae certi-

fication.” 3B Moore, Federal Practice (1976-77 Supp.) .90 at

173. See also Pearson v. Ecological Science Corp., 522 F. re 171,

178 (Sth Cir. 1975), discussed at Pet. Br. 13-16. The federal trial

court in the Southern District of New York recently adopted a

similar of American Pipe. Stull v. Bayard, 75 Civ. 3782

(January 7, 1977). Since the decision is not reported, we quote at

some length (Slip Opinion 12-14):

[Plaintiff] is not within the American Pipe principle of tolling.

He did not move (timely or not) to intervene in the then

(Footnote continued on next page)

‘on

7

Despite the tremendous burdens which class actions have

placed upon the judiciary and upon defendants who become em-

broiled in such litigation, respondent McDonald asks the Court

to adopt, as a general rule of law applicable in class actions,

the principle that once a class action pleading is filed, potential

class members may attempt to resuscitate the class action at any

time, even though the class status has been denied years before

their tardy attempts to intervene, even though years of litigation

(Footnote continued from preceding page.)

nding second Lillian action after class action status had

ap Be yee my te [Plaintiff] went counter to and

defied the American Pipe principle by commencing a separate

and independent action, thus increasing the volume of federal

litigation and defeating the economy and efficiency which it

was the object of the present class action Rule 23 to bring

about.

There is no square authority on the point, but in my view

0 ee s member of a class, on whose behalf OY ened ory has —_

a separate, nt action after

his bie individual gio has time barred. His sole remedy,

under American Pipe, is a timely motion to intervene in the

class action after class action status has been denied; only if

he does so, is the statute of limitations tolled as to him.

. There is nowhere in [American Pipe] any suggestion that

Rule in its rs a oes

at — It certainly would not effectuate itigative efficiency

to permit any number of separate independent

non oo tp: dass abebams an Gontesed dies The separate

opinion of Mr. Justice Blackmun points out that the American

Pipe principle will not unduly encourage the assertion of stale

claims because these can only be asserted through inter-

vention either as of ri t or as an exercise of the Court's dis-

Whether or not one ma y alternatively file an independent action

issue here; the point is that immediate

after

cou cales © Genmtely air db cites to Guid.

8

have interposed, and even though the litigation has terminated

to the satisfaction of all parties actually involved.

We submit that respondent’s view is inconsistent with Rule 23,

clearly contrary to the principles set forth in American Pipe and,

if adopted, would hopelessly confuse and complicate the manage-

ment of litigation under Rule 23.°

Il.

RESPONDENT’S ATTACKS ON PETITIONER’S MOTIVES,

CONDUCT AND ARGUMENTS ARE NOT SOUND.

Respondent's brief is replete with inaccuracies and innuendoes

concerning petitioner's motives, conduct and arguments. These

are in the main irrelevant to the issues before the Court.

Although mindful of the Court’s concern about undue prolifer-

ation of written material submitted to it, we are compelled

to respond to some of these comments lest our failure to do so

be taken as admissions.

1. The Right of Named Plaintiffs to Appeal Class Status Denial.

Respondent contends the named plaintiffs could have

appealed the final order of dismissal, and disputes petitioner’s

contention that because of the settlement and agreed order of

5. As we have elsewhere noted (Pet. for Writ of Cert. 8, n.6),

the Court of Appeals test of timeliness (which differs from that now

advanced by respondent, supra, pp. 2-3) is equally unworkable.

That makes the running of the limitations period dependent on the

subjective state of mind of the potential class member attempting

to intervene as to his or her expectations of plaintiffs’ intent to appeal

after final order. This test invites a separate judicial inquiry into

such questions as the intervenor’s knowledge of the proceedings,

when the intervenor may have first learned of plaintiffs’ intent,

and whether the intervenor’s conclusion was reasonable in light

of peculiar factors such as the denial of attorney fees in Sprogis.

See Pet. Br. 20, n.18. This approach would also mean that inter-

vention might be timely for some potential class members and not

for others because of varying experiences and expectations.

9

dismissal named plaintiffs could not appeal.® Resp. Br. 27, n.27.

Respondent suggests there was really no settlement, and erron-

eously states that the Special Master who recommended a

monetary award in Sprogis participated in the monetary awards

in this case. Kesp. Br. 10. The order of October 3, 1975 dis-

missing the case states “counsel for the parties in this case

negotiated settlements of the claims of [named plaintiffs and

intervenors].” The order then stated that the complaints of these

parties “are hereby dismissed with prejudice, all matters in

controversy with respect to such claims having been settled

and resolved.” The complaint of one other intervenor was

dismissed with prejudice, and that was based on that inter-

venor’s motion for leave to withdraw and waive any claim to

relief. A. 91, 92. Respondent quotes counsel for the named

plaintiffs and intervenors to the effect that he believed plain-

tiffs could thereafter have appealed, “but have chosen not to

do so.” Resp. Br. 27, n.27 What is omitted is counsel’s further

statement to the trial court: “They have settled their individual

claims and consequently the original class action representatives

are not in a position to take the appeal.” A. 100-1.

We simply do not understand how respondent has the temerity

to state that the Special Master participated in the process, that

this was not a settlement, and that the named plaintiffs could

appeal after agreeing to an order of dismissal with prejudice.’

6. On our view of the case, whether named plaintiffs could

have appealed class denial and chose not to do so, or could not

have appealed because of the settlement and agreed dismissal with

prejudice, is irrelevant here. In either case, respondent would not

have the right to appeal class denial since the statutory period had

long since run as to her. The difference is critical to respondent,

however, since she defends her lack of earlier action on the ground

she was rel on an expectation that named plaintiffs would, and

therefore rr appeal.

7. In the text and footnote 30 on page 29 of her brief, respond-

ent cites a number of cases to the proposition that a named plain-

tiff may appeal an “adverse class determination” even where the

plaintiff has “no personal claim or has received full satisfaction.”

The cited cases do not support the proposition. They involve rather

(Footnote continued on next page)

10

2. The No-Marriage Policy.

Respondent states that “although this discriminatory

‘no-marriage’ policy became unlawful in 1965 on the effective

date of Title VII of the Civil Rights Act of 1964 . . . United

retained the rule until November, 1968.” Resp. Br. 4. The

clear implication is that United deliberately persisted in a

policy it knew to be a violation of Title VII for three years

after the policy became unlawful. We accept, as we must, the

decision of Sprogis v. United Air Lines, 444 F. 2d 1194 (7th

Cir. 1971), that the no-marriage policy was a violation of

Title VII and the propriety vt that ruling is not. in issue here.

However, the violation was not as obvious as respondent

implies. The Sprogis decision was by a divided court, with

Judge (now Justice) Stevens agreeing with United’s position

that the discrimination inherent in the no-marriage policy was

based on marital status—not proscribed by Title VII—and not

on sex. In January of this year the Court of Appeals for the

Fifth Circuit held that the Delta Air Lines no-marriage policy

for flight attendants was not a violation of Title VII precisely

on the grounds articulated by Judge Stevens. In so doing the

Fifth Circuit expressly rejected the reasoning of the majority

in Sprogis. Stroud v. Delta Air Lines, 544 F. 2d 892, 894

(Sth Cir. 1977). Thus, there is now a split between the Fifth

and Seventh circuits on the basic issue of whether the no-

marriage policy was ever a Title VII violation.

‘Footnote continued from preceding page.)

efforts of a class representative to appeal the denial of relief to

unnamed class members where a class has been certified or situ-

ations in which class has been denied solely because the class

representative may not be entitled to relief. Typical is Franks v.

Bowman Transportation Co., 424 U. S. 747 (1976), cited by

respondent at pages 14, 27 and 29. There the Court held that an

appeal challenging denial of relief to the unnamed, but identifiable,

class members by the class representative was not moot because the

class representative himself might not have been entitled to relief.

There the class was certified, there was no settlement, and the issue

was mootness, not standing to appeal.

11

3. Petitioner’s Failure to Consolidate.

United’s defense of the various suits brought against

it by individual flight attendants is criticized as its “herculean

efforts to escape its obligations to respondent McDonald and

others similarly situated.” Resp. Br. 2. United is faulted because

it did not attempt to transfer and consolidate similar claims

“from members of a numerous class.” Its defenses are described

as “technical” and its successes as “procedural”. Resp. Br. 2,

n.l, 3. We were not aware that United had the obligation

to concede the validity of class allegations or to move to con-

solidate individual suits. The question really suggested by these

various suits is why other flight attendants were not as sanguine

as was respondent here about asserting their own interests and

why they did not—as did Ms. McDonald—simply wait for

seven years before coming forward. lt was respondent’s own

inaction—not United’s “herculean effort’—which is responsible

for her present situation.

4. The Claimed Class.

Respondent takes some liberties in describing the number

of members in the alleged class. At page 4 of her brief, it is

“estimated” to be over 160. At page 14, there are “over one

hundred and sixty women who were the victims” of the no-

marriage policy. In support of this number, respondent refers

to a statement in the majority opinion that “Petitioner and

140 other stewardesses were thus excluded from the case.”

Respondent ignores the court's footnote to this statement:

“The figure is derived from p. 2 of petitioner’s [respondent here]

main brief and p. 13 of the EEOC’s brief and may be excessive.

Defendant asserts there are only 30 in this class (defendant’s

main brief 50).” A. 105, n.2. (Emphasis added.) When faced

with the same overstatement in the Court of Appeals we pointed

out that respondent based her estimate on a computer printout

12

given to named plaintiffs during discovery for the period

January 1966 through December 1971 showing terminations of

flight attendants for all reasons, not solely marriage. Respondent

persists in this overstatement, citing as authority the Court of

Appeals opinion which, in turn, is based on respondent’s own

inaccurate statement.

Elsewhere in her brief respondent argues that the surprise

and prejudice to a defendant arising out of stale claims are not

here present since the filing of the suit notified United of the

“approximate number” of persons “who may participatr in the

judgment.” Resp. Br. 26. But here respondent failed to point out

that the complaint alleged that the claimed class numbered

“approximately twenty-seven or twenty-eight other such dis-

charged stewardesses” (Comp. Par. 3, A. 11)—not the 160

claimed by respondent.

5. The Propriety of the Trial Court’s Ruling on Class Status.

Respondent describes the class ruling of the trial court

as “plainly wrong” (Resp. Br. 20), “obvious error” (Resp.

Br. 33), and states that United “does not dispute that the

district court erred in refusing to fashion class relief for respond-

ent and others similarly situated.” (Resp. Br. 12.) That United

did not raise in its petition that part of the majority decision

reversing class denial does not mean we agree the district

court erred.* The issue here is not whether the district court

8. In our opinion, the trial court correctly decided the class

issue. Both the Court of Appeals majority and respondent here

‘misstate the basis on which the trial court acted in order to lend

credence to their conclusion that the trial court erred. Both the

majority and respondent claim the trial court denied class status

on the judge’s mistaken view that each potential class member had

to meet the jurisdictional requirements of Title VII by filing charges

with the EEOC. Opinion, A. 109; Resp. Br. 20, n.18.

This is a patent misreading of the trial judge’s order of December

6, 1972. If that had been his view of the law, he would not have

permitted intervention by any of the 13 former flight attendants he

(Footnote continued on next page)

13

erred in this respect; the issue is whether the Court of Appeals

had the “power to examine the adverse class ruling” as it con-

_ Cluded it did because it found respondent’s petition to intervene

to be timely despite American Pipe. In fact, the majority of the

Court of Appeals was quite cavalier in its consideration of the

class question and has created a host of potential administrative

problems for the trial court if its decision is permitted to stand.

See Pet. Reply to Br. in Opp. to Pet. for Writ of Cert. 2, n.1;

Pet. Br. 17, n.12. Whether the trial court was right or wrong

in its class determination is not the question here; rather it is

whether the Court of Appeals should have decided that question

on this appeal.°

\ Footnote continued from preceding page.)

did allow in the case, for none had satisfied all and most had met

none of the Title VII jurisdictional requirements.

What the trial court did require was a showing of interest in

continued employment. The judge had expressed concern about

“one way intervention,” since the legal issues had long since been

settled. “It appears to the court intervenors should be limited to

those who protested, did not settle and were truly interested in

employment.” A. 57. In explication—

In considering the equities, it does not seem fair and

reasonable to this court that it should allow a stewardess

terminated prior to November 7, 1968 to intervene here unless

she indicated in a timely manner her desire to continue work-

ing by taking some affirmative action to protest United’s policy

or seek reinstatement. A. 60.

This was in December 1972. And yet respondent McDonald—with

knowledge that this order excluded her from the case (A. 95)—

made no move until three more years had passed.

9. Respondent now appears to contend that the denial of class

action by the trial court in Sprogis after remand from the Gourt

of Appeals (see Pet. Br. 4-5) was also error. Resp. Br. 6, n.4. If

that is respondent’s position, then she should have attempted to

intervene after the denial of class action status in that case. Ms.

Sprogis, represented by the same counsel representing plaintiffs and

intervenors in this case, did appeal the final order of June 1974

in that case, but only on the issue of denial of attorney fees.

Sprogis v. United Air Lines, 517 F. 2d 387 (7th Cir. 1975). Pet.

Br. 5, n.3.

14

6. Respondent’s Efforts to Make Known Her Claim.

Respondent takes issue with United's assertion that although

respondent was terminated in September 1968 she did not

make her claim for reinstatement and back pay known until

October 1975 when she filed her petition to intervene. This

assertion, claims respondent, is without record support. Resp.

Br. 10. Respondent attempts to refute this claim by noting that

Ms. McDonald’s name appeared on a computer printout, and

further (and without record support) “McDonald twice con-

tacted United to attempt to regain her position.” Resp. Br. 10,

n.8. |

Respondent's name on a computer printout of former em-

ployees conveys nothing about the employee’s claim concerning

the termination. The printout included the names of employees

terminated and sesigned between 1966 and 1971 for all kinds

of reasons. It was an historical record of the names of past

employees, not a grievance roster.

Respondent's assertion that she twice contacted United is

particularly distressing. United made the identical claim about

respondent’s inaction in both brief and argument in the Court

of Appeals. During argument, counsel for McDonald asked for

and was granted leave to file a post-argument memorandum to

this point, and did so. That memorandum, part of the record in

the Court of Appeals, made no claim that McDonald ever at-

tempted to contact United prior to the filing of the petition

to intervene in October 1975. It merely asserts that United's

statement “is unsupported by any record cites and is untrue.”

United has approximately 50,000 employees. We do not know

how we could support the negative of the proposition if indeed

we had such an obligation. But Ms. McDonald filed an affidavit

in support of her petition to intervene in which she did not

allege that she took any affirmative action to assert her claim

during the intervening seven year period but rather that she

relied on what others were doing. “Since the legality of the nio-

15

marriage policy was being challenged in proceedings that I

thought would govern my situation, I did not myself file a dis-

crimination charge against United or grievance under the col-

lective bargaining agreement.” A. 95. If McDonaid had mis-

spoken or left something out of her affidavit the Court of Appeals

gave her the unusual opportunity to correct that omission after

argument. She did not. Her present claim that the record does

not support our assertion that she took no action until October

1975 is frivolous.

CONCLUSION.

In the final analysis, this Court will advise us whether a

potential class member such as respondent McDonald can sit

back for seven years after termination of employment, five years

after suit has been started, and three years after class denial,

waiting until all issues are decided and disposed of, and then

come forth to intervene, appeal and start the process all over.

To allow her to do so would be to allow again the “one-way

intervention” which Rule 23 was designed to eliminate. American

Pipe & Construction Co. v. Utah, 414 U. S. 538, 547 (1974.)

To permit this would be unfair and prejudicial to a defendant,

like United, who should be reasonably able to assume after the

passage of so many years that its exposure has ended. The trial

court, after the extensive time and effort spent on this case and

the related Sprogis case, “ought to be relieved of the burden

of trying stale claims when [this respondent] has slept on [her]

rights.” Burnett v. New York Central Rr. Co., 380 U. S. 424,

428 (1965).

For the foregoing reasons and for the reasons set forth in our

main brief, we respectfully request that the decision of the

Court of Appeals be reversed and that the decision of the

16

district court of October 21, 1975, denying the petition of

respondent to intervene, be affirmed.’®

Respectfully submitted,

STUART BERNSTEIN,

JAMES W. GLADDEN, JR.,

SuSAN S. SHER,

231 South LaSalle Street,

Chicago, Illinois 60604,

Counsel for Petitioner.

Of Counsel:

MAYER, BROWN & PLATT,

231 South LaSalle Street,

Chicago, Illinois 60604.

March 22, 1977.

10. Respondent has submitted to the Court by letter dated March

16, 1977, a copy of the decision of the Court of Appeals for the

District of Columbia in Knable v. Wilson, Nos. 75-1655, 1656

(March 9, 1977). There the Court denied to named plaintiffs the

right to appeal immediately after class denial. In urging application

of the “death knell” doctrine, the named plaintiffs argued that

potential class members were now time barred and could not institute

their own suits, and that named plaintifis might prevail individually

and satisfactorily on their claims and have no incentive to appeal

class denial after judgment. The Court responded by pointing out

that there was no “threat of extinction to the named plaintiffs’

individual damage claims attributable to a possible time barrier for

those who may have slept on their rights.” Slip Op. 13. To the second

argument—and apparently the point in the decision which induced

respondent to submit this case—the Court stated that “the fate

predicted for the latter is not inexorable. The jurisprudence of this

circuit offers generously the possibility that, on the contingency

postulated, unnamed claimants would be allowed to intervene for the

purpose of taking the appeal.” Slip Op. 14. To the extent this can be

construed as other than dictum, the two responses by the Court

appear inconsistent. It is apparent that the named plaintiffs had

accurately gauged and were concerned about the impact of American

Pipe resulting from the inaction of “those who have slept on their

rights.” Further, the cases cited by the Court to the “generosity” of

(Footnote continued on next page)

Ne

(Footnote continued from preceding page.)

the circuit did not involve class action. Two of these have been cited

in respondent’s brief and are generally distinguished at pages 4-5,

supra. Smuck v. Hobson, 408 F. 2d 175 (D. C. Cir. 1969), held

that parents had the right to intervene as of right under Rule 24(a)

and appeal an order against the Board of Education affecting district

policies where the Board itself decided not to appeal. In Wolpe v.

Poretsky, 144 F. 2d 505 (D. C. Cir. 1944) cert. denied 323 U. S.

777 (1944), a zoning commission whose order affecting a parcel was

held void decided not to appeal. The adjoining adversely affected

property owners were allowed to intervene as of right. The third cited

case, Zuber v. Allen, 387 F. 2d 862 (D. C. Cir. 1967), recites the

formal order without opinion and is somewhat cryptic. It apparently

permitted an individual adversely affected by an order against the

Secretary of Agriculture to intervene for appeal purposes if the

Secretary did not appeal. None of the cited cases concerned Rule 23.

If the Court of Appeals intended its comments to be a definitive ruling

on the right of potential class members to intervene to appeal class

denial after a final order—as it clearly did not since no potential class

members were before the Court—then there is another conflict with

American Pipe along with the decision of the Seventh Circuit in

this case.