# Petition for Writ of Certiorari — Pan American World Airways, Inc. v. Cook

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 474 U.S. 1109

## Text

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Supreme Court, U.S.

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IN THE | NOY 20 1985
Supreme Court of the Hnited) States. WR.

OctTosBer TERM, 1985

PAN AMERICAN WORLD AIRWAYS, INC.; AIR LINE PILOTS
ASSOCIATION, INTERNATIONAL; AIR LINE PILOTS ASSOCIATION,
PAN AM CHAPTER; FLIGHT ENGINEERS INTERNATIONAL
ASSOCIATION; FLIGHT ENGINEERS INTERNATIONAL
ASSOCIATION, PAN AM CHAPTER,

Petitioners,
Vv.
JOHN C. COOK, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

RICHARD SCHOOLMAN, Esq. Gary GREEN, Esa. ASHER W. ScHwantz, Esq.
Pan Am Legal Dep't JoNATHAN A. CoHEN, EsQ. O'Donnell & Schwartz
200 Park Avenue, Rm 918 1625 Massachusetts 285 Madison Avenue
New York, NY 10166 Avenue, N.W. New York, NY 10017
tel: 212 880-1121 Washington, D.C. 20036 __ tel: 212 532-8900
Attorney for Petitioner tel: 202 797-4110 Attorney for Petitioners
Pan American World Attorneys for Petitioners __ Flight Engineers Inter-
Airways, Inc. Air Line Pilots Ass'n, national and Flight
International and Air Engineers International
Line Pilots Ass'n, Pan Ass'n, Pan Am Chapter

Am Chapter

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THE QUESTIONS PRESENTED FOR REVIEW

Whether the mere continued use of a newly created
seniority list, which is challenged by plaintiffs as age-
discriminatory because they, allegedly on the basis of their
age, had been placed in positions on that new seniority
list inferior to the ones they otherwise would have oc-
cupied, constitutes a “continuing violation” of the Age
Discrimination in Employment Act (“ADEA”) tolling in-
definitely that Act’s statute of limitations, where the plain-
tiffs’ relatively inferior placement on that seniority list
and its consequences were known to them at the time of
the seniority list’s creation and firsimplementation.

Whether the Federal Aviation Act deprives a district court
of jurisdiction to entertain a claim to the effect that aspects
of an airline’s seniority system integrated after a merger
violated plaintiffs’ rights under ADEA where those aspects
had been the subject of plaintiffs’ prior challenge to that
seniority system made before the Civil Aeronautics Board
and that Board had upheld the seniority system in an
order that had not been appealed under the terms of the
Federal Aviation Act.

THE PARTIES TO THE PROCEEDING

The parties to the proceeding are those listed in the caption
except that all of the respondents are listed at pages 27-37 of
Appendix | to this petition. Petitioner Pan American World Air-
ways, Inc. is a wholly owned subsidiary of Pan Am Corporation.

TABLE OF CONTENTS

Page

THE QUESTIONS PRESENTED FOR REVIEW. i
THE PARTIES TO THE PROCEEDING ....... ii
TABLE OF CONTENTS...................... iii
TABLE OF AUTHORITIES................... iv
OPINION IN THE COURTS BELOW .......... ]
STATEMENT OF JURISDICTION............. 2
STATUTES AND REGULATIONS INVOLVED . 2
STATEMENT OF THE CASE................. 2
ed pei sees ccuecnsedsess 6
APPENDIX 1

(Opinion of the Court of Appeals for the Se-

RM nc ccc ct cccccccccccccccecs A-1l
APPENDIX 2

(Opinion of the District Court, Southern

District of New York)....................... A-38
APPENDIX 3

(49 U.S.C. §1486).... 2.0.0.0 cece eee eee. A-4]

iv

TABLE OF AUTHORITIES
Cases Page

Abramson v. University of Hawaii, 594 F.2d 202
(9th Cis. 1979) ....... EOC ae ee )

Aronsen v. Crown Zellerbach, 662 F.2d 584 (9th
Cir. 1981), cert. den. 459 U.S. 1200 (1983).... 10

Benson v. General Motors Corp., 716 F.2d 862
vt Ve rrr rere rr rr rree 10

Bertheas v. Trans World Airlines, Inc., 450
F.Supp. 1069 (E.D.N.Y. 1978)............--. 10

Bronze Shields, Inc. V. N.J. Dept. of Civil
Service, 667 F.2d 1074 (3d Cir. 1981), cert.

Ps} Lit S fer rrrer re 9
Callanen Road Improvement Co. v. United

States, 345 U.S. 507 (1953) ..........-.-.-0- 14
Carey v. O'Donnell, 506 F.2d 107 (D.C. Cir.

1974), cert. den. 419 U.S. 1110 (1975) ........ 14
Cates v. Trans World Airlines, Inc., 561 F.2d

Be ON Ge, EE ov oko ke cenccesercssvcss 10
Chardon v. Fernandez, 454 U.S. 6 (1981) ....... 9

City of Tacoma v. Taxpayers of Tacoma, 357
FF Pree eee 13

Delaware State College v. Ricks, 449 U.S. 250
EE 005-000 HA RNRsRAe bees a peLeesheiceds 8,9

Farris v. Board of Ed. of City of St. Louis, 576
fb Ff fo ee AAT eee 10

Cases

Ford Motor Co. v. Huffman, 345 U.S. 330 (1953)

Fowler v. Birmingham News Co., 608 F.2d 1055
i i ceecawetadeetenuewhesuleus

Franks v. Bowman Transportation Co., 424 U.S.
EE aku dd wos eu els ukaehead ie viens xs

Hyland v. United Airlines, Inc., 254 F.Supp. 367
MS ee oa, Wm ee ere

Kesinger v. Universal Airlines, Inc., 474 F.2d
a ae ERT RIES Sry

Lambert Run Coal Co. v. Baltimore ¢> Ohio R.R.
ig Be es PO NS ono chcccwuewdevnees

Lockhart v. Firestone Tire & Rubber Co., 454
F.Supp. 191 (E.D. Va. 1978) ................

Morelock v. NCR Corp., 586 F.2d 1096 (6th Cir.
1978), cert. den. 441 U.S. 906 (1979) .........

Oling v. Air Line Pilots Ass’n, 346 F.2d 270 (7th
Cir.), cert. den. 382 U.S. 926 (1965) .........

Oscar Mayer & Co. v. Evans, 44] U.S. 750 (1979)

Trabucco v. Delta Airlines, 590 F.2d 315 (6th
ee 14 deen ae Rae Ue rea beh cates

Truck Drivers and Helpers, Local 568 v.
N.L.R.B., 379 F.2d 137 (D.C. Cir. 1967) .....

United Air Lines, Inc. v. Evans, 431 U.S. 552
EPRINTS a Wet oko Re ae ty ey iy

Zdanok v. Glidden Co., 288 F.2d 99 (2d Cir.
1961) aff'd sub nom. Glidden Company v.
Zdanok, 370 U.S. 530 (1962) ................

Page

1]

Statutes
8 i OTP ere rT Tee ere eee a
90 U.S.C. $681] of ang... 2.2 cece ec eneee ieee
IE, CN ooo ccc ee ncesdstavcvcess
Ee PP Peroni rere ry Tree ere
CL I ere Serre rere ek
rrr rr rrr eer
Po eT 0 errr rerer reer eee
OGRE, BOD oc ccccesceceeneccess Seren
Civil Aeronautics Board Sunset Act of 1984, Pub.
L. 98-443, 98 Stat. 1703 ...........---- eee:
Oe OE Rg occ cco dewesencccdcceresienss
Civil Aeronautics Board Orders

North Atlantic Route Transfer Case (I), 12
a 0 rrr errr

CAB Order 82-4-75 (1962)... .........-0-ceeeee.
Other Authorities
Benjamin Aaron, Reflections on the Legal Nature

and Enforceability of Seniority Rights, 75
Harv. L. Rev. 1532 (1962) .............-555.

15

15

11

No.

IN THE

Supreme Court of the United States

OctTosBer TERM, 1985

PAN AMERICAN WORLD AIRWAYS, INC.; AIR LINE
PILOTS ASSOCIATION, INTERNATIONAL; AIR LINE
PILOTS ASSOCIATION, PAN AM CHAPTER; FLIGHT
ENGINEERS INTERNATIONAL ASSOCIATION;
FLIGHT ENGINEERS INTERNATIONAL
ASSOCIATION, PAN AM CHAPTER,

Petitioners,

Vv.
JOHN C. COOK, et al.,
Respondents.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

OPINIONS IN THE COURTS BELOW

The opinion of the Court of Appeals, which reversed in rele-
vant part the dismissal of this action by the District Court for
the Southern District of New York, has been officially reported
at 771 F.2d 635, and is set out in Appendix 1. No written opi-
nion was rendered by the District Court for the Southern District
of New York; the transcript of the District Court's oral opinion
is set out in Appendix 2.

STATEMENT OF JURISDICTION

The decision of the Court of Appeals of which review is sought
was entered on August 22, 1985. No application for an exten-
sion of time to file this petition has been made. This Court's
jurisdiction is invoked under 28 U S.C. §1254(1).

STATUTES INVOLVED

This Appeal involves the interpretation of Section 7(d)(2) of
the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. §626(d)(2), which reads in relevant part as follows:

No civil action may be commenced by an individual
under this section [of ADEA] until 60 days after a
charge alleging unlawful discrimination has been filed
with the Equal Employment Opportunity Commis-
sion. Such a charge shall be filed —

¢
*?e*

(2) ... within 300 days after the alleged unlawful
practice occurred ...;

and section 1006 of the Federal Aviation Act, 49 U.S.C. §1486,
the text of which is set out in Appendix 3.

STATEMENT OF THE CASE

In this case plaintiffs have complained principally that a
seniority list implemented following the merger of petitioner
Pan American World Airways, Inc. (“Pan Am”) and the former
National Airlines (“National”), discriminated against them on
the basis of their age in violation of the Age Discrimination in
Employment Act, (“ADEA”) 29 U.S.C. §621 et seq.* (The

* The complaint also alleges a pendent state age discrimination claim, and
various other federal claims; the dismissal of the latter claims was affirmed
by the Court of Appeals.

plaintiffs are several hundred Pan Am pilots who, before the
Pan Am-National merger, had been with Pan Am.) That in-
tegrated seniority list was made necessary because Pan Am, as
a condition of the Civil Aeronautics Board’s (“CAB”) approval
of Pan Am’s merger with National, was required to comply with
Labor Protective Provisions (“LPPs”) the CAB had issued in con-
nection with its approval, which Provisions (at Section 3) man-
dated that the separate seniority lists of pre-merger Pan Am and
pre-merger National personnel be integrated “in a fair and
equitable manner.”

To accomplish that integration with respect to the three
classifications of cockpit personnel (i.e., captains, first officers,
and flight engineers) petitioners Air Line Pilots Association, In-
ternational (“ALPA”), the union representing the merged car-
rier’s captains and first officers (collectively terme. ‘pilots”),
and Flight Engineers International Association, Pan Am Chapter
(“FEIA”), the union representing ihe merged carrier's flight
engineers, entered into an agreement whereby representatives
of four groups of employees (pre-merger Pan Am pilots, pre-
merger National pilots, pre-merger Pan Am flight engineers,
and pre-merger National flight engineers) would be the par-
ties to a binding arbitration in which the arbitrator would devise
an integrated seniority system. Pan Am was not a party to that
agreement and was not a party to the arbitration. Nevertheless,
after the arbitrator (Lewis Gill) issued his award in March, 1981,
a copy of which was sent that month to every pilot and flight
engineer, Pan Am agreed (in June of 1981) to accept without
change this integrated seniority system Mr. Gill had devised.
Thereafter, Pan Am constructed an integrated seniority list pur-
suant to the Gill award, had it posted in August of 1981, and
by October of that year all Pan Am flying was pursuant to the
Gill award’s integrated seniority list.

The Gill seniority system, to the extent here relevant, called
for an integrated seniority list for pilots that was, in its highest
and lowest sections, constructed on the basis of length of

service or date of hire; the middle portion of the pilots’ list was
constructed on a ratio method whereby a (pre-merger) National
pilot was inserted on the list after every three or every four (pre-
merger) Pan Am pilots, based on their relative positions in the
separate pre-merger lists. Plaintiffs in this proceeding challenge
the ratio-method portion of the pilots seniority list as constructed
under the Gill award claiming that use of the ratio method,
as opposed to length of service or date of hire, discriminates
against them on the basis of their age because the pre-merger
National pilots inserted in the integrated list on a ratio basis
are younger than the pre-merger Pan Am pilots among whom
they are being inserted. (The merged flight engineers seniority
list created by the Gill award did not use a ratio method and
is not challenged.)

Relative position on the pilots seniority list as constructed pur-
suant to the Gill award determined, from the moment the list
was first implemented by Pan An, virtually every aspect of a
pilot’s employment. Where one was put determined every pilot's
relative exposure to “furlough” (i.e., lay-off); every pilot’s mon-
thly “lines of flying” (that is, who flies specific trips on specific
days each month) and vacations; and every pilot’s opportunities
to transfer to different aircraft, bases, and cockpit positions (that
is, captain, first officer, or flight engineer) in a process know
as a “proffer,” which transfer affects a pilot’s pay immediately
as pay is principally determined by the size of the aircraft flown
and the cockpit position occupied.

Plaintiffs, who had been sent copies of the Gill award in
March, 1981, formed a group (“PAPF,” Pan American Pilots
Fighting) that petitioned the CAB in July of 1981, i.e., after
Pan Am had announced it would accept the Gill award but
shortly before the Gill award seniority list was posted and put
into full effect, to set aside the Gill award. PAPF asserted to
the CAB that, as a matter of law, the Gill award’s seniority
system was not “fair and equitable” as Section 3 of the CAB’s
Labor Protective Provisions required in that the portion of the
pilots seniority list generated by a ratio metnod unfairly and

inequitably disadvantaged them, pre-merger Pan Am pilots who
had more years of service (and who were older) than the pre-
merger National pilots among whom they were inserted. The
plaintiffs here claimed, through PAPF, that they were lower
on the seniority list than they should be. The CAB, in its Order
82-4-75, adopted April 15, 1982, denied PAPF’s petition and
found the Gill seniority list, and specifically the portion con-
structed on a ratio method, to have been fairly and equitably
integrated. No appeal of that CAB Order was ever taken to a
court of appeals pursuant to 49 U.S.C. §1486(a).

Following Pan Am’s implementation of the Gill award’s
seniority list in 1981, there were no pilot furloughs until 1983.
In connection with the fifth ’proffer” under the Gill award
seniority list, in early 1983 Pan Am announced that there would
be lay-offs of cockpit crew members. Following the announce-
ment of those furloughs in which 102 cockpit crew members
were eventually furloughed in March and June of 1983, (three
of whom were plaintiffs and the remaining 99 were all pre-
merger National flight crew members and this not part of the
group of plaintiffs in this case), a number of plaintiffs filed
charges of age discrimination with the EEOC. The earliest such
charge was filed on April 12, 1983, some 18 months after the
integrated seniority list was implemented by Pan Am in Oc-
tober of 1981. If these 1983 furloughs had been necessary in
October of 1981, they would have been based on the same Gill
award seniority list posted in August, 1981.

This action was commenced on March 7, 1984, in the United
States District Court for the Southern District of New York.
Defendants moved to dismiss on the grounds that plaintiffs’
ADEA claims were untimely because ADEA requires, at the
most, that age discrimination charges be filed with the EEOC
no later that 300 days “after the alleged unlawful employment
practice occurred” (29 U.S.C. §626(d)(2)), and, in this case,
plaintiffs had waited at least a year and a half. In addition,
the defendants moved to dismiss on the grounds that this lawsuit

constitutes an impermissible collateral attack on a CAB order,
which order had found the seniority system at issue to have been
fairly and equitably integrated, and which order had not been
appealed.

The District Court (Ward, J.) dismissed the complaint in its
entirety solely on the grounds that it was an impermissible col-
lateral attack on a CAB order; (the District Court did not reach
the timeliness question). Plaintiffs appealed and the Court of
Appeals for the Second Circuit, to the extent here re evant,
reversed, holding that a claim under ADEA was not foreclosed
by the CAB order in this case. In addition, the Second Circuit
found plaintiffs’ ADEA claim to be a “continuing violation,”
thereby making timely the EEOC charges individual plaintiffs
may have filed, on the theory that the mere continued
maintenance of an allegedly discriminatory seniority list is per
se a “continuing violation” of ADEA.

ARGUMENT

I. SO MUCH OF THE DECISION OF THE SE-
COND CIRCUIT AS CONCLUDED THAT
ADOPTION OF A SENIORITY LIST THAT IS
ALLEGEDLY AGE DISCRIMINATORY CON-
STITUTES A CONTINUING VIOLATION OF
THE ADEA AS LONG AS THE LIST IS MAIN-
TAINED SHOULD BE REVIEWED BY THE
SUPREME COURT BECAUSE IT DECIDES AN
IMPORTANT FEDERAL QUESTION IN CON.-
FLICT WITH APPLICABLE DECISIONS OF
THE SUPREME COURT AS WELL AS OTHER
FEDERAL COURTS OF APPEALS.

The integrated seniority list at issue in this case was created
in 1981 as the product of a binding process undertaken by the
four unions representing Pan Am’s pilots and flight engineers
that Pan Am accepted, made part of its collective bargaining
agreements with the unions, and put into use. The record is

“I

undisputed that, in 1981, shortly after Pan Am accepted the
arbitrated seniority system, it posted the new seniority list and,
still in 1981, began implementing it: every cockpit assignment
determining which individuals hold which of Pan Am’s three
cockpit positions on which kind of aircraft (which assignment
determines monthly pay) and every monthly schedule of flying
and of vacations (i.e., who flies where, and when), starting no
later than October of 1981, were based on the new seniority
list. The record is also clear that, while there were no furloughs
under the new list until 1983, had furloughs been necessary in
late 1981 or in 1982, those furloughs would have been ac-
complished under the new seniority list that, from its incep-
tion, had put the pilots on notice as to their relative exposure
to furloughs. There is also no doubt in the record that the plain-
tiffs were aware of the new seniority list and its real and poten-
tial impact on them; among other things in 1981] plaintiffs
challenged as “unfair and inequitable” in a proceeding before
the Civil Aeronautics Board the same portion of the new pilots
list they challenge here on essentially the same grounds — the
consequences of the “ratio method.”

What plaintiffs complain about in this lawsuit, as they com-
plained to the CAB, is their relative position on the new seniority
list. They claim, only with respect to that portion of the new
seniority list created by a ratio method (which is based on one’s
relative position on the separate pre-merger seniority lists in-
stead of a direct date of hire or length of service calculation),
that they were placed lower on the integrated seniority list than
younger pilots (from National Airlines) and that they should
be placed higher on that list than those younger (National
Airlines) pilots.

Under the ADEA, plaintiffs had, at the most, 300 days from
the time the wrongful “employment practice” of which they
complain to file discrimination charges with the EEOC (29
U.S.C. §626(d)(2)). As the merged seniority system was put into
place, at the latest, by October of 1981, the ADEA would

require an EEOC charge to be filed by August of 1982; none
was filed until April of 1983 following the first announcement
of lay-offs under the new list, as a result of which three of the
plaintiffs came to be furloughed. The Second Circuit conciud-
ed that those EEOC charges were timely on the theory that
plaintiffs’ claim was properly viewed as one attacking the con-
struction of a seniority list and thus a “continuing violation”
for as long as that list remains in use. This conclusion, however,
is contrary to the reasoning of this Court’s decisions in Delaware
State College v. Ricks, 449 U.S. 250 (1980), and United Air
Lines, Inc. v. Evans, 431 U.S. 552 (1977).

In the United Air Lines v. Evans case, plaintiff Evans, a flight
attendant, charged that United’s seniority system illegally
discriminated against her in that she was, upon rehire, not given
the higher seniority position she “deserved” to make her whole
for past sex discrimination. She alleged that United’s seniority
system constituted a continuing violation of Title VII in that
each month her “wages; the duration and timing of vacations;
rights to retention in the event of layoffs...and rights to preferen-
tial selection of flight assignments” (431 U.S. at 555, n. 5) were
affected by her “wrongful” place in the seniority system.

This Court concluded that Evans’ claim was time-barred, and
not based upon a true continuing violation. The Court found
that while the seniority system gave present effect to a past act
of discrimination, United

“was entitled to treat that past act as lawful after
respondent failed to file a charge of discrimination
within the 90 days then allowed by 706(d). A
discriminatory act which is not made the basis for a
timely charge is the legal equivalent of a
discriminatory act which occurred before the statute
was passed ... [T]he emphasis should not be on mere
continuity; the critical question is whether any pre-
sent violation exists ...” (431 U.S. at 578-79; emphasis
in original.)

Similarly, in Delaware State College v. Ricks, supra, 449 U.S.
at 258, this Court set out the basic rule for determining when
a discriminatory practice occurs for purposes of statutes of
limitations, stating that “[t]he proper focus is upon the time
of the discriminatory acts, not upon the time at which the con-
sequences of the acts become most painful,” quoting Abram-
son v. University of Hawaii, 594 F.2d 202, 209 (9th Cir. 1979),
emphasis in original).

Ricks and United Air Lines v. Evans should be applied to this
ADEA case.* Such application would time-bar this action
because the wrongful practice of which plaintiffs really com-
plain is their being placed too low on a seniority list in 1981
(and the other harms plaintiffs allege, including the furloughing
of three of them in 1983 that precipitated their EEOC charges,
are merely consequences of the putting into use of that list in
1981). Plaintiffs claim is thus not a proper example of “conti-
nuing violation.”

The Second Circuit’s decision here also conflicts with deci-
sions from other ciicuits to the effect that the continued use of
an allegedly erronecus!y or defectively or discriminatorily con-
structed employee list does not constitute a continuing viola-
tion on the analysis that, as in this case, what is continuing is
merely the consequence of a single, specific, and identifiable
past act: the development of a list of employees. See, e.g., Bronze
Shields, Inc. v. N.J. Dept. of Civil Service, 667 F.2d 1074,
1080-1084 (3d Cir. 1981), cert. den. 458 U.S. 1122 (1982) (Ti-
tle VII) (the “specific, identifiable act, the promulgation of the
hiring roster,” was the true unlawful practice, not the employ-
ment decisions made later on the basis of the roster); Lockhart v.

* While Ricks and United Air Lines v. Evans were decided under Title VII
of the Civil Rights Act of ’ “84, 42 U.S.C. §2000, “the ADEA and Title VII
share a common purpose” (aad the same limitations period for filing EEOC
charges) (Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756 [1979]). See, e.g.,
Chardon v. Fernandez, 454 U.S. 6 (1981), applying Ricks to a case arising
under 42 U.S.C. §1983.

10

Firestone Tire ¢> Rubber Co., 454 F.Supp. 191 (E.D. Va. 1978)
(ADEA); and more generally, Benson v. General Motors Corp.,
716 F.2d 862, 863-864 (11th Cir. 1983) (breach of duty of fair
representation claim); Aronsen v. Crown Zellerbach, 662 F.2d
584, 592-594 ‘9th Cir. 1981), cert. den. 459 U.S. 1200 (1983)
(ADEA); Fowler v. Birmingham News Co., 608 F.2d 1055, 1057
(5th Cir. 1979) (Title VII); Farris v. Board of Ed. of City of
St. Louis, 576 F.2d 765 (8th Cir. 1978) (Title VII);* contra,
Morelock v. NCR Corp., 586 F.2d 1096 (6th Cir 1978), cert.
den. 441 U.S. 906 (1979), which, however, appears inconsis-
tent with the Sixth Circuit’s later decision in Trabucco v. Delta
Airlines, 590 F.2d 315 (6th Cir. 1979).

The question of the proper application of the “continuing
violation” doctrine to seniority systems under the ADEA is an
important one as a matter of both statutory interpretation and
public policy. First of all, ADEA was designed to have
discrimination claims brought to the attention of an ad-
ministrative agency within, at the most, three hundred days
in order to encourage conciliation and “expeditious disposition”
of those claims before they become stale. See, e.g., Oscar Mayer
Co. v. Evans, supra, 441 U.S. at 757. Second, more is at stake
in a challenge to a seniority system than the interests of plain-
tiffs, such as those here, who felt in 1981 some impact of a new
seniority system but who chose to wait one and a half to two
years before filing charges of violation of the ADEA following
a more serious impact upon them of that seniority system. Under
the reasoning of the Second Circuit’s decision in this case, every
employee in a seniority system, and every employer with a
seniority system, may now never be certain as to the final legality
under the ADEA of that system. And an employee may wait
decades before challenging it, notwithstanding the fact that that

The Second Circuit's decision concerning timeliness in this case is also
neither reconciled with, nor reconcilable with, such earlier cases from the
Second Circuit as Cates v. Trans World Airlines, Inc., 561 F.2d 1064 (2d
Cir. 1977), and Bertheas v. Trans Worid Airlines, Inc., 450 F.Supp. 1069
(E.D.N.Y. 1978).

11

employee knew he had been affected by that seniority system
from the time it was first put into use because, among other
things, it inevitably affected, from the date of first use, every
paycheck and work assignment and his relative exposure to lay-
off, whenever that lay-off might occur.

It has long been recognized that many different kinds of
seniority systems may be valid (see, e.g., Ford Motor Co. v.
Huffman, 345 U.S. 330, 338-339 [1953]) and that seniority in-
tegration following mergers “poses notoriously difficult pro-
blems” (Truck Drivers and Helpers, Local 568 v. N.L.R.B., 379
F.2d 137, 140 [D.C. Cir. 1967]). But once a seniority system
has been established and, as here, made a part of a collective
bargaining agreement, it becomes of paramount importance.
“More than any other provision of a collective agreement ...
seniority affects the economic security of the individual employee
covered by its terms.” (Benjamin Aaron, Reflections on the Legal
Nature and Enforceability of Seniority Rights, 75 Harv. L. Rev.
1532, 1535 [1962].) And once a seniority system is established,
rights and reasonable expectations are created for “perfectly in-
nocent employees” and, of course, for their employers. See, e.g.
Franks v. Bowman Transportation Co., 424 U.S. 747, 780-81,
788-89 (1976, Burger, C.J., dissenting in part, and Powell, J.,
dissenting in part); Zdanok v. Glidden Co., 288 F.2d 99, 104
(2d Cir. 1961), aff'd sub nom. Glidden Company v. Zdanok,
370 U.S. 530 (1962).

Employees plan their careers, and employers their corporate
destinies, by making some assumptions that seniority systems
fix, or at least ake predictable, important rights and obliga-
tions. The Second Circuit’s decision in this case as to the
timeliness of plaintiffs’ ADEA claims destroys that limited
amount of economic predictability in an uncertain world; that
decision calls out for review by this Court.

12

Il. SO MUCH OF THE DECISION OF THE SE-
COND CIRCUIT AS CONCLUDED THAT
PLAINTIFFS’ ADEA CLAIMS IN THE
DISTRICT COURT WERE NOT AN IMPER-
MISSIBLE COLLATERAL ATTACK ON AN
UNAPPEALED ORDER OF THE CIVIL
AERONAUTICS BOARD THAT CONCLUDED
THAT THE SENIORITY SYSTEM IN DISPUTE
HERE HAD BEEN CREATED IN A FAIR AND
EQUITABLE MANNER SHOULD BE REVIEW-
ED BY THE SUPREME COURT BECAUSE IT
DECIDES AN IMPORTANT FEDERAL QUES-
TION IN CONFLICT WITH APPLICABLE
DECISIONS OF THE SUPREME COURT AS
WELL AS OTHER FEDERAL COURTS OF
APPEALS

In Section 408 (b) of the Civil Aeronautics Act of 1938 (then
codified at 49 U.S.C. §488(b)), and in its successor statute, Sec-
tion 408(b) of the Federal Aviation Act of 1958, 49 U.S.C.
$1378(b), Congress entrusted to the exclusive jurisdiction of the
CAB the authority to approve airline mergers “consistent with
the public interest” and to regulate those mergers with such
terms and conditions “as it shall find to be just and reasonabie.”*
Under this broad mandate of exclusive authority the CAB re-
quired Pan Am, as a condition of the CAB's approval of the
Pan Am-National Airlines merger, to integrate seniority lists pur-
suant to the terms of Section 3 of the CAB’s Labor Protective
Provisions (“LPPs”), which section called for that integration
to be accomplished in a “fair and equitable manner.”

In light of Section 3 of the CAB’s LPPs, plaintiffs, in the form
of an organization called PAPF, petitioned the CAB to vacate

* Asa result of the Civil Aeronautics Board Sunset Act of 1984, Public Law
98-443. 98 Stat. 1703, the CAB’s merger authority has now been transferred
to the Department of Transportation.

13

the Gill award on the grounds that it did not produce a fair
and equitable merged seniority system in that the ratio method
portion of the integrated pilots list put some National pilots
ahead of some Pan Am pilots with more year: of experience;
and although the PAPF did not specifically claira that such
placement violated ADEA, PAPF did bring to the CAB’s atten-
tion the fact that the Pan Am pilots disadvantaged by the ratio
method were older than the National pilots who were advan-
taged by it. The CAB, after extensive briefing on PAPF’s peti-
tion (as well as on the petition of another group of pre-merger
Pan Am pilots called the “Janus group,” which represented pilots
who were on furlough, and the petition of some pre-National
pilots who sought “enforcement” of the Gill award), sustained
the Gill award as being fair and equitable within the meaning
of Section 3 of the LPPs. The Federal Aviation Act, at 49 U.S.C.
§1486, provides that review of such a CAB order may be had
only by appeal to the Court of Appeals, which “shall have ex-
clusive jurisdiction to affirm, modify, or set aside the order...”
(49 U.S.C. §1486(d), emphasis added); no such appeal was
taken.

The exclusive jurisdiction Congress gave the CAB with respect
to airline mergers empowered the CAB to reject integrated
seniority systems that were not “consistent with the public in-
terest” or not otherwise “just and reasonable” or “fair and
equitable.” There should be no doubt that a seniority system
that was'violative of ADEA would be, per se, inconsistent with
the public interest, and unjust, and the CAB would have a
statutory duty to reject that seniority system. In light of the ex-
clusive statutory authority vested in the CAB, and the “exclusive
jurisdiction” of a Court of Appeals with respect to review of
CAB orders, the only further review of that seniority system
would be an appeal of the CAB’s order to the Court of Appeals;
as the District Court concluded below, this action should thus
be deemed an impermissible collateral attack on that CAB order.
See, for example, City of Tacoma v. Taxpayers of Tacoma, 357
U.S. 320, 334-337 (1958), in which this Court observed with
respect to a comparable order of the Federal Power Commission:

14

“Upon judicial review of the Commission’s order, all
objections to the order ... must be made in the Court
of Appeals or not at all. For Congress, acting within
its powers, has declared that the Court of Appeals
shall have ‘exclusive jurisdiction’ to review such orders
...” (357 U.S. at 336-37, emphasis added).

Accordingly, a federal district court did not have the subject
matter jurisdiction to adjudicate actions such as the one com-
menced here by plaintiffs (some two years after the CAB issued
its order upholding the fairness and equity of the seniority systein
at issue). See, also Callanen Road Improvement Co. v. United
States, 345 U.S. 507, 512-513 (1953); Lambert Run Coal Co.
». Baltimore & Ohio R.R. Co., 258 U.S. 377, 381-382 (1922).

While none of this Court’s decisions has precisely involved
the question of an ADEA claim’s being raised after the CAB
had passed on the fairness and equity of a seniority system, that
precise question was raised and decided in Carey v. O’Donnell,
506 F.2d 107 (D.C. Cir. 1974), cert. den. 419 U.S. 1110 (1975),
a decision the Second Circuit expressly declined to follow. In
Carey, the court observed:

“Viewed objectively, the actions below, although
couched in terms of violations of the RLA [Railway
Labor Act, 45 U.S.C. §151 et seq.] and the ADEA,
are essentially collateral attacks on the integrated
seniority list as incorporated in the ALPA Delta agree-
ment of 26 October, 1972, approved by the Civil
Aeronautics Board, and reviewed by this court. We
perceive no necessity for additional review, not con-
templated by the Federal Aviation Act, in the district
court or any other forum.” (506 F.2d at 110).

To comparable effect are Kesinger v. Universal Airlines, Inc.,
474 F.2d 1127 (6th Cir. 1973), and Oling v. Air Line Pilots Ass'n,
346 F.2d 270 (7th Cir.), cert. den. 382 U.S. 926 (1965).

15

Seniority integration is a complex process, and, almost by
definition, no such integration can please everyone subject to
it. Nevertheless, the speedy and final integration of seniority
lists foilowing a merger is essential so that the merged carrier
can operate as a merged carrier rather than as two carriers with
a common owner. The CAB had long taken the position that
seniority lists must be integrated “as speedily as possible” if the
public interest in promoting the adequacy and efficiency of air
transportation is to be served. See, North Atlantic Route
Transfer Case (I), 12 C.A.B. 124, 133 (1950).

Permitting serial challenges, in various forums, to the fairness
and equity of an integrated seniority system would render the
speedy (and final) determination of post-merger seniority im-
possible. An airline employee, unhappy with his position on the
integrated seniority list, could wait — even if his claim were
not deemed to be one of a “continuing violation” — up to three
years after the list is adopted to sue under, for example, the Age
Discrimination in Employment Act (Section 7(e) of the ADEA,
29 U.S.C. §626(e), incorporating Section 6 of the Portal-to-
Portal Act, 29 U.S.C. §255) or even up to six years (in New York
State) to sue on, for instance, a fraud theory (N.Y. CPLR §213),
unless he is /imited to a challenge to the list heard by the CAB
(which procedure of course permits judicial review by a Court
of Appeals, 49 U.S.C. §1486). A better way to stymie the
statutorily required “public interest” underlying the CAB’s ap-
proval of an airline merger would be hard to imagine; no airline
employee, and no airline, could be confident that a seniority
system, approved by the CAB and which they all have lived
and planned under ‘or years, may someday be found, retroac-
tively, to be unlawful by someone else. As the court in Hyland
v. United Airlines, Inc., 254 F.Supp. 367 (N.D. Ill. 1966), noted:
“The parties affected by the CAB merger order cannot be re-
quired to answer in different forums at different times on dif-
ferent charges for actions taken under the CAB merger um-
brella.” Id. at 372. The need for speedy (and, inherently, final)
integration of seniority lists requires that challenges to an
adopted seniority integration scheme, once presented to the
CAB, may not be refiled in other guises elsewhere.

16

The Second Circuit, in permitting de novo review under
ADEA of essentially the same claims that were raised before
the CAB (albeit claims that were not given an explicit ADEA
label) misconstrued the primary and exclusive jurisdiction given
to the CAB by the Federal Aviation Act to adjudicate the kinds
of seniority system claims plaintiffs have already raised before
the CAB. De novo review, moreover, can only encourage a pro-
fusion of wasteful serial litigation on complex matters that are
within the competence of the federal agency given the jurisdic-
tion by Congress to resolve such issues. Review of the Second
Circuit’s decision is thus called for.

Conclusion

For the reasons outlined above a writ of certiorari should issue
to review the judgment of the Court of Appeals and, according-
ly, this petition should be granted.

November 19, 1985

Respectfully submitted,

RICHARD SCHOOLMAN
200 Park Avenue
New York, N.Y. 10166

GARY GREEN

JONATHAN A. COHEN

1625 Massachusetts Avenue, N.W.
Washington, D.C. 20036

ASHER W. SCHWARTZ
285 Madison Avenue
New York, N.Y. 10017

Counsel for Petitioners

APPENDIX

Appendix |

A-l

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 875 — August Term, 1984
(Argued: March 5, 1985 Decided: August 22, 1985)

Docket No. 84-7972

JOHN C. COOK, et al. (listed in Appendices A and B),
Plaintijfs-A ppellants,
—against—

PAN AMERICAN WORLD AIRWAYS, INC.; AIR LINE PILOTS
ASSOCIATION, INTERNATONAL; AIR LINE PILOTS
ASSOCIATION, PAN AM CHAPTER; FLIGHT ENGINEERS
INTERNATIONAL ASSOCIATION; FLIGHT ENGINEERS
INTERNATIONAL ASSOCIATION, PAN AM CHAPTER,

Respondents-A ppellees.

rp - 2 ie— ——

Before:

MANSFIELD, NEWMAN and KEARSE, Circuit Judges.

Appeal from an order of the Southern District of
New York, Robert J. Ward, Judge, dismissing for lack of
subject matter jurisdiction claims of age discrimination,
29 U.S.C. §§ 623-31, and violation of the New York
Human Rights Law, N.Y. Exec. Law, $§ 290, et seq., and
of the Railway Labor Act, 45 U.S.C. §$§ 151, et seq., based
on adoption and implementation of seniority lists for pilots
and flight engineers established by consensual arbitration
in connection with approval by the Civil Aeronautics
Board of a merger of two airlines.

A-2

Affirmed in part, reversed in part, and remanded for
further proceedings.

JEFFREY C. LONDA, Esq., Houston, TX ( Butler
& Binion, Houston, TX; Robert E. Cohn,
Esq., Kevin F. Flynn, Shaw, Pittman,
Potts & Trowbridge, Washington, DC;
Jeffrey Bernbach, Esq., New York, NY,
of counsel), for Appellants.

RICHARD SCHOOLMAN, Esq., New York, NY
(Patricia J. Langer, Esq., Pan Am Legal
Department, New York, NY, of counsel),
for Appellee Pan American World Air-
ways, Inc.

ROBERT A. MCCULLOUGH, Esq., Washington,
DC (Gary Green, Esq., Air Line Pilots
Association, Int’l, Washington, DC, of
counsel), for Appellee Air Line Pilots
Association, Int’l.

ASHER W. SCHWARTZ, Esq., New York, NY
(O’Donnell & Schwartz, New York, NY,
of counsel), for Appellees Flight Engi-
neers’ International Association, Pan Am
Chapter and Flight Engineers’ Interna-
tional Association, AFL-CIO.

oe
MANSFIELD, Circuit Judge:

John C. Cook and more than 400 other current or
former Pan American Pilot-Flight Engineers, all over age
40, appeal from a judgment of the Southern District of
New York, Robert J. Ward, Judge, dismissing their com-
plaint against Pan American World Airways, Inc. (“Pan

A-3

Am”) and four union defendants—Air Line Pilots Asso-
ciation (“ALPA”), International; ALPA, Pan Am
Chapter; Flight Engineers’ International Association
(“FEIA”) ; FELA, Pan Am Chapter—for lack of subject
matter jurisdiction. Their complaint alleged that, by
adopting and implementing a 1981 seniority list integrat-
ing the pilots and flight engineers of two merged airlines,
Pan Am and National, the defendants had violated the
Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. §§ 623-31 (1982), and New York Human Rights
Law (“NYHRL”), N.Y. Exec. Law $§ 290, et al. (McKin-
ney 1982 & Supp. 1984-85), and that defendant unions
had in addition violated the Railway Labor Act, 45 U.S.C.
$§ 151 et seg. (1982). Finding that plaintiffs’ action
constituted an impermissible collateral attack on a final
order of the Civil Aeronautics Board (“CAB”), not ap-
pealed in accordance with the provisions of § 1006 of the
Federal Aviation Act, 49 U.S.C. § 1486(a), Judge Ward
dismissed their complaint for lack of subject matter
jurisdiction. We affirm in part, reverse in part, and
remand for further proceedings.

This case arises out of Pan Am’s acquisition of con-
trol of and merger with National Airlines, effective
January 19, 1980. The merger was approved by the
CAB pursuant to 49 U.S.C. §1378(b), which empowers
it to determine whether mergers are “consistent with the
public interest” and to approve them “upon such terms
and conditions as it shall find to be just and reasonable
and with such modifications as it may prescribe’. The
CAB conditioned its approval of the merger upon com-
pliance with its labor protection provisions (“LPPs’), see
Flying Tiger-Slick Merger Case, 18 C.A.B. 326 (1954)
(approving airline merger but imposing labor protective
conditions and retaining jurisdiction), and retained juris-

A-+

diction “to make such amendments, modifications, and
additions to the labor protective conditions as the circum-
stances may require... .” CAB Order 79-12-164, at 1.
Two of the LPPs are central to this case:

“Section 3. Insofar as the merger affects the
seniority rights of the carriers’ employees, provisions
shall be made for the integration of seniority lists in
a fair and equitable manner, including, where appli-
cable, agreement through collective bargaining be-
tween the ccrriers and the representatives of the
employees affected. In the event of failure to agree,
the dispute may be submitted by either party for
adjustment in accordance with section 13.

“Section 13(a). In the event that any dispute
or controversy * * * arises with respect to the pro-
tections provided herein, which cannot be settled by
the parties within 20 days after the controversy
arises, it may be referred by any party to an arbi-
trator * * *. The deicsion of the arbitrator shall be
final and binding on the parties.”

On March 19, 1980, the four unions involved—the
ALPA Master Executive Council (“MEC”) for the Pan
Am pilots, ALPA’s MEC for the National Pilots, FEIA’s
Pan Am Chapter, and FEIA’s National Chapter—agreed
on a procedure for determining how to integrate the
seniority lists. In the event that agreement on seniority
integration should not be reached within a limited period
arbitration was to be “mandatory,” and “(t|he Award
of the Arbitrator shall be final and binding as to all
flight deck operating crew members and shall be defended
by the parties.” March 19, 1980, Agreement { 8(j).

A-5

After unsuccessful inter-union negotiation and medi-
ation on seniority integration, arbitration took place be-
fore Lewis M. Gill, whom the parties had designated as
their first choice. The four union representatives partici-
pated fully in the arbitration hearing, which lasted ap-
proximately 35 days and closed on January 14, 1981.
Arbitrator Gill subsequently held 15 days of executive
session with the union parties. The final record con-
tained over 4,700 transcript pages and hundreds of ex-
hibits. Arbitrator Gill issued his Award on March 12,
1981.

In his lengthy opinion explaining the award Gill
identified several issues. First, the ‘“cross-bidding” ar-
rangements between pilots and flight engineers at Pan
Am were entirely different from those at National. Al-
though both airlines required three crewmen in the cock-
pit, Pan Am used a pilot/flight engineer (“PFE”) as the
third crewman, while National used an engineer who was
not qualified as a pilot. Pan Am accordingly maintained
a single seniority list, with PFEs being allowed to bid
for pilot vacancies and fall back to engineer positions,
bumping less senior PFEs to avoid furlough. National,
however, maintained two independent seniority lists, one
for its pilots and one for its flight engineers, and did not
permit cross-bidding or displacement between the groups.

Having decided not to disturb the premerger cross-
bidding situation, Gill constructed two integrated lists.
One, the “Pilot List,” contained National pilots and all
Pan Am airmen; the other, the “Engineer List,”’ con-
tained National engineers and all Pan Am airmen. Gill
then directed that cross-bidding be

“(als before on each airline. Pam Am airmen con-
tinue cross-bidding practices vis-a-vis each other, but

A-6

Pan Am Pilots cannot bump National Engineers.
National Pilots cannot bid Engineer positions, Na-
tional Engineers cannot bid Pilot positions. National
Engineers to have same rights as [a small class of
Pan Am engineers who did not qualify as pilots!
against being displaced from Engineer seats by
Pilots.” (Award at IV.C.)

A second issue, labelled “explosive” by Gill, concerned
the manner in which approximately 400 Pan Am pilots on
furlough at the time of the merger were to be integrated.
This large number of furloughees resulted from Pan
Am’s switch from smaller planes to B747s, the largest
wide-bodied aircraft, and Pan Am’s poor financial health
in the preceding few years. Gill stated that this furlough
situation created

“a head-on clash over the relative equities as between
large numbers of National airmen hired between
1968 and 1978 and actively employed at the time of
the merger, and large numbers of these Pan Am
furloughees with earlier dates of hire who still have
recall rights but who brought no active jobs to the
merger.” (Gill Op. at 8).

Gill’s solution was to calculate the Pan Am tfur-
loughees’ length of service at the time of their recall, and
to slot them into the list by comparing their length of
service with that of the active airmen at that time. ‘An
exception was made for about 34 furloughed Pan Am pilots
who had received notice of recall before January 19,
1980). He indicated a willingness, had the parties (or
the “JANUS” group, representing the furloughees) sub-
mitted a proposal estimating the likely dates of recall of
the furloughees and the likely length of service of the
active pilots at those dates, to integrate the furlougi.ees

A-7

on that basis. However, no such proposal was forth-
coming “[p]jerhaps because of the difficulties in fashion-
ing projections of that nature.” Jd. at 41. While noting
that his solution to the furloughee problem might seem
novel, Gill observed that

“the problem itself is novel—there has not been any
previous merger case called to my attention where
such massive numbers of furloughees, with such long
periods of being off the property, were pitted against
active airmen from the other airline who brought
current jobs to the merger.” Jd. at 40.

Finally, differences between Pan Am and National
created further conflicts between the interests of the vari-
ous union groups. While Pan Am’s fleet consisted pri-
marily of B747s, National mostly used the smaller B727s.
Although National was in “a healthy financial condition
at the time of the merger,” Pan Am had been in financial
difficulties over the preceding few years. Because of these
and other differences, the parties before Gill advocated
three different methods for integrating the seniority lists:
(1) the National pilots and engineers advocated “ratio”
methods; (2) the Pan Am pilots a mixed length of ser-
vice (“LOS”) and date of hire ‘“DOH’) method; and
(3) the Pan Am engineers a straight DOH method. Under
a ratio method, a certain number of identified airmen from
one airline are listed followed by a similar listing of a
specified number of airmen from the other airline (e.g.,
1 National pilot followed by 3 Pan Am pilots). The ratios
can form all or part of a master list. In the latter case
the balance of the list can name airmen on a LOS and/or
DOH basis.

Gill concluded that a “fair and equitable” solution
required that two integrated seniority lists be constructed
by different methods. He constructed the entire En-

A-8

gineer List, and the top and bottom of the Pilot list, by
a straight LOS/DOH method. However, for the middle
portion of the Pilot List he used a mixed-ratio method,
which distributed Pan Am and National pilots in a ratio
of approximately 3.25 Pan Am pilots for every one Na-
‘ional pilot.

On March 15, 1981, ALPA mailed copies of the ar-
bitrator’s award to all the pilots and on March 25, 1981,
FEIA mailed copies to the flight-engineers. On June 26,
1981 Pan American accepted the Gill award and agreed
to implement it without change.

Two groups of airmen petitioned the CAB to set
aside the Gill award. The Janus Group, formed at the
time of approval proceedings before the CAB and repre-
senting 510 Pan Am crewmen who had been furloughed
before the merger, maintained that the Gill award failed
adequately to consider the interests of its members and
that it was not “fair and equitable” within the meaning
of the labor protection provision of CAB Order 79-12-164,
atl. The Janus Group sought a new arbitration in which
it would be granted full party status.

Pan American Pilots Fighting (“PAPF’’), a group
of Pan American crewmen who had been employed from
dates before the merger, which was formed after the ar-
bitration award to oppose it, argued that the Gill award
must be set aside because it used a ratio method to in-
tegrate the middle portion of the Pilot List. PAPF main-
tained that only a “time served” method of integration,
either LOS or DOH, was “fair and equitable” and that
use of a ratio method was inconsistent with the labor
protective provisions that the CAB had imposed in ap-
proving the merger. PAPF sought a CAB order integrat-
ing the seniority list on a time served basis or renegotia-
tion of the integration with PAPF and the Janus Group
as parties.

A-9

The CAB rejected the two petitions in an order dated
April 15, 1982, noting:

“The carrier’s action is wholly consistent with our
long-held, and judicially approved, view that ‘absent
a showing of bad faith, the adoption by a carrier of
an integrated seniority list proposed by the collective
bargaining representatives of the employees involved
amounts to the carrier having made “provisions * * *
for the integration of seniority lists in a fair and
equitable manner” within the meaning of section 3
of the Board’s labor protective provisions.’ ‘’ It fol-
lows, therefore, that we also dismiss Janus Group’s
and PAPF’s petitions to set aside the award.

13 Delta-Northeast Merger Case, Order 73-1-24 at 5, aff'd
Northeast Master Executive Council v. CAB, 506 F.2d 97 (D.C.
Cir. 1974), cert. denied, 419 U.S. 1110.”

CAB Order 82-4-75 at 11.1 Having concluded that resolu-
tion of the seniority integration was reached in a fair
and equitable manner, the Board declined to review “the
intrinsic nature of the integration system established by
the award.” Td.

The CAB further found that the Janus Group was
not entitled to full party status at a new arbitration since
its members’ interests were adequately represented both
by its own statements at several points during the arbitra-
tion and by union representation at all stages. It also
rejected PAPF’s claim that only a “time-served,” i.e.,
LOS or DOH, method of integration was “fair and equit-
able”, finding that Arbitrator Gill acted within his pre-
rogative in using a ratio method to integrate the middle

1 The CAB also dismissed a “Motion for Confirmation and En-
forcement of [the] Arbitration Award,” filed by flight engineers
formerly employed by National, as moot.

A-10

portion of the Pilot List. In making this finding, the
Board again confirmed the propriety of its refusing “ ‘to
look behind the freely negotiated list.’”” Jd. at 12 (quoting
Northeast Master Executive Council v. C.A.B., 506 F.2d
97, 105 (D.C. Cir. 1974), cert. denied, 419 U.S. 1110
(1975)). No appeal was taken from the CAB’s denial
of the two petitions, even though an appeal was available
under 49 U.S.C. § 1486, which provides in relevant part
that “any” order of the Board “shall be subject to review
by the courts of appeals of the United States” which “shall
have exclusive jurisdiction to affirm, modify, or set aside
the order complained of, in whole or in part, and if need
be, to order further proceedings by the Board... .” 49
U.S.C. $$ 1486(a), (d). The statute further provides
that the Board’s findings, if supported by substantial evi-
dence, shall be conclusive, 49 U.S.C. § 1486/e).’

The complaint in the present action, which was filed
on March 7, 1984, alleged that plaintiffs were all over

2 We have held that for purposes of review under 29 U.S.C.
§ 1486(a) the word “order” should be construed liberally. State
of New York v. F.A.A., 712 F.2d 806, 808 (2d Cir. 1983). Al-
though only final orders are reviewable, McManus v. C.A.B., 286
F.2d 414, 417 (2d Cir.), cert. denied, 366 U.S. 918 (1961), we
have defined a final order as one which “imposes an obligation,
denies a right, or fixes some legal relationship.” Rombough v.
F.A.A., 594 F.2d 893, 895-96 n.4 (2d Cir. 1979) (citing Chicago
& Southern Air Lines, Inc. v. Waterman Steamship Corp., 333
U.S. 103, 112-13 (1948)). The order in the instant case meets this
criterion.

Our conclusion that the CAB order denying the petitions to
set aside (rather than the original CAB order approving the
merger but retaining jurisdiction to ensure that the LPPs are
complied with) is appealable, see, e.g., Northeast Master Executive
Couneil v. C.A.B., supra, 506 F.2d at 100, and consistent with
cases in which we have held orders approving a merger to be
non-reviewable, Overseas National Airways, Inc. v. C.A.B., 426
F.2d 725, 727 (2d Cir. 1970) (CAB orders refusing to expand
scope of hearing non-reviewable as merely “threshold determina-
tions,” “interlocutory in nature”); McManus v. C.A.B., supra,
(CAB orders “relating to various procedural details” not subject
to review).

A-11

age 40 and that many had, in the period April 12, 1983
to September 2, 1983, filed in various federal and state
equal employment offices charges containing some or all
of the allegations stated in the complaint. The complaint
charged that the pilot seniority list resulting from the Gill
arbitration award, which used a ratio formula “to insert
large numbers of former National pilots under age 40
ahead of older and more experienced Pan Am pilots over
the age of 40,” 111, was first implemented on a system-
wide basis on March 28, 1983, and that it had been and
would continue indefinitely to be implemented. Further,
the complaint maintained that on June 15, 1983, Pan Am
had caused to be furloughed, under the Gill seniority in-
tegration, three of the plaintiffs.

The complaint further alleged that “{b]y using and
adopting, and by indefinitely continuing to use and adopt,
the above-described seniority system in making employ-
ment decisions” defendant Pan Am has engaged in “will-
ful and continuous violation” of both $4/a) of the Age
Discrimination in Employment Act ‘ADEA), 29 U.S.C.
$ 623\a), and $ 296 of the New York Human Rights Law,
N.Y. Exec. Law § 296; and that the four defendant unions,
“(bly actively supporting and/or acquiescing in, and by
indefinitely continuing to actively support and/or ac-
quiesce in, the above-described seniority system,” had
engaged in “willful and continuous violation” of § 4/c)
of the ADEA, 29 U.S.C. § 623(c), and $ 296 of the New
York Human Rights Law, and that they had thereby
breached their duty under the Ra‘lway Labor Act, 45
U.S.C. §§ 151, et seg., to fairly represent the interests of
the plaintiffs. Plaintiffs sought injunctive relief, includ-
ing an order directing defendants to construct and imple-
ment a seniority system which eradicated the effects of
the allegedly unlawful employment practices described:

A-12

damages to make them whole; liquidated damages; and
attorneys’ fees and costs.

Pan Am sought dismissal of the complaint on the
grounds that the ADEA cause of action was time-barred
and that the pendent claim should be dismissed for lack
of jurisdiction. ALPA and FEIA also moved for dis-
missal on the grounds that plaintiffs’ ADEA and duty
of fair representation claims were time-barred and that
the complaint constituted an impermissible collateral at-
tack on a final order of the CAB.

At the end of a hearing held on October 31, 1984,
Judge Ward issued an oral opinion and an order dismizs-
ing plaintiffs’ complaint on the ground that it constituted
an impermissible collateral attack on a final order of the
CAB that had not been appealed in accordance with the
provisions of $1006 of the Federal Aviation Act, 49
U.S.C. § 1486(a). This appeal followed.

DISCUSSION

The principal issue is whether the integrated seniority
list formulated by the parties’ mutually-selected arbitrator
pursuant to the CAB’s labor protection provisions may,
notwithstanding the CAB decision, be challenged through
the present lawsuit on the ground that it violates plain-
tiffs’ rights under the ADEA and the New York Euman
Rights Law. The starting point for consideration of that
issue lies in Supreme Court decisions upholding de novo
judicial determination of claims asserted under similar
federal statutes, McDonald v. City of West Branch, —
U.S. —, 104 S.Ct. 1799 (1984) (civil rights claim under
42 U.S.C. $1983); Barrentine v. Arkansas-Best Freight
System, Inc., 450 U.S. 728 (1981) (Minimum wage pro-
visions of Fair Labor Standards Act); Alexander Vv.
Gardner-Denver Co., 415 U.S. 36 (1974) ‘Title VII

A-13

action). Gardner-Denver has particular relevance for the
reason that the prohibitions of the ADEA, enacted only
a few years after Title VII, are in terms almost identical
to those of Title VII, Hodgson v. First Fed. Sav. & Loan
Ass’n, 455 F.2d 818, 820 (5th Cir. 1972), and both laws
have received parallel interpretations. Aronsex Vv. Crow
Zellerbach, 662 F.2d 584, 589 (9th Cir. 1981), cert.
denied, 459 U.S. 1200 (1983). See also Oscar Mayer &
Co. Vv. Evans, 441 U.S. 750, 756-58 (1979).

In Gardner-Denver, supra, the Supreme Court unan-
imously held that, since Congress intended to give
federal courts parallel jurisdiction over a de novo pro-
ceeding, an employee’s statutory right under Title VII to
obtain judicial relief from discrimination in his employ-
ment is absolute and not barred or waived by his resort
to the grievance-arbitration machinery of a collective-
bargaining agreement. Congress, said the Court, intended

“to allow an individual to pursue independently his
rights under both Title VII and other applicable
state and federal statutes. The clear inference is
that Title VII was designed to supplement, rather
than supplant, existing laws and institutions relating
to employment discrimination. In sum, Title VII’s
purpose and procedures strongly suggest that an in-
dividual does not forfeit his private cause of action
if he first pursues his grievance to final arbitration
under the nondiscrimination clause of a collective-
bargaining agreement.” J/d., at 48-49.

The Court noted, as reasons for its decision, that the
arbitrator’s role was “to effectuate the intent of the
parties rather than the requirements of enacted legisla-
tion,” id. at 56-57, that the arbitrator’s competence “per-
tains primarily to the law of the shop, not the law of tlie
land,” id. at 57, that the record of arbitration is usually

A-14

not as complete as that of a court proceeding, that the
rights and procedures common to civil trials are often
limited or unavailable and that arbitrators have no obliga-
tion to give their reasons for an award. These reasons
were echoed and adopted in McDonald in support of the
Court’s holding that a federa! court may not, in a civil
rights action under 42 U.S.C. § 1983, give preclusive
effect to an arbitration award, concluding that arbitration
is not the equivalent of a “judicial proceeding” within the
meaning of 28 U.S.C. $1738. 104 S.Ct. at 1804.

Some of the Supreme Couri’s reasoning may not be
as fully applicable to the arbitration proceeding in the
present case as it was in Gardner-Denver and McDonald.
For instance, the fairness of integrated seniority may
have been resolved by the arbitrator consistently with
the aims of ADEA, But we are persuaded that this dif-
ference in shading is not of sufficient significance to out-
weigh the statutory entitlement to the de novo determina-
tion provided for by Congress in its enactment of ADEA.

There remains, therefore, the question of whether,
since Arbitrator Gill’s order was appealed as of right to
the CAB by way of a motion to set it aside and the
CAB’s resulting order was in turn appealable to a court
of appeals, vested by statute with “exclusive jurisdiction”
to hear such appeals, the principles of Gardner-Denver
and McDonald still apply or whether tke order of the
CAB must be given collateral estoppel or preclusive effect.
The answer turns largely on whether the issue before the
administrative agency, in this case the CAB, was the
same as that raised in the later court proceedings and
whether the administrative agency had the authority to
decide that issue. In City of Tacoma v. Taxpayers, 357
U.S. 320 (1959), relied on by the district court, collateral
attack was barred when the issue raised by the State of

A-15

Washington in a proceeding before the state court, the
legality and effect of a license issued by the Federal
Power Commission, was the same as that raised by it
earlier before the Commission itself, which was fully
competent to resolve the issue, and was decided upon
appeal by the Court of Appeals, which had “exclusive
jurisdiction” to review the Commission’s order. In Lam-
bert Run Coal Co. v. Baltimore & Ohio R.R. Co., 258 U.S.
377 (1922), also cited by the district court, collateral
attack upon an order of the Interstate Commerce Com-
mission was barred since the issue raised in the later
court proceeding was one which the ICC was explicitly
empowered to decide.

On the other hand, when the admiristr. .1ve agency
is neither authorizea nor required to decide the issue
later raised in a separate action, the court has jurisdiction
to entertain the latter claim. In Beins v. United States,
695 F.2d 591 (D.C. Cir. 1982), for instance, the court
upheld the district court’s jurisdiction to entertain a
pilot’s claim under the Federal Tort Claims Act against
the government for damages based on alleged negligence
of the Federal Aviation Commission. The government’s
contention that the plaintiff’s sole remedy was an appeal
to a court of appeals of the FAA’s denial of medical certi-
fication was rejected on the ground that the determina-
tions made by a ccurt of appeals “are distinct conceptually
from a finding of negligence.” Jd. at 598.

Applying these principles here, the record does not
reveal any CAB ruling on the question now raised by the
plaintiffs of whether the integrated seniority lists formu-
lated by Arbitrator Gill were unfair as age-discrimina-
tory. The CAB made no independent inquiry into possible
age discrimination and held no evidentiary hearing. In-
deed, none of the parties presented an issue based on age

A-16

discrimination to the Board. In opposition to a motion
by National Flight Engineers to confirm the award and
in support of motions to set it aside, the Janus Group
and PAPF argued only that their interests had not been
adequately considered by the arbitrator, and that the ratio
method used for part of the arbitrator’s integrated senior-
ity lists, in contrast to “time served” methods ‘DOH and
LOS), was not a fair and equitabie basis for integration.

Nor did the CAB indicate that it would have con-
sidered itself authorized to rule upon such an issue ‘un-
fairness based on age discrimination) if it had been
raised. On the contrary, although it reviewed in detail
Arbitrator Gill’s 59-page decision, it repeatedly made
clear that it considered its authority limited to deciding
whether the arbitration had been conducted “in a fair and
equitable manner” (LPP § 3; emphasis added), i.e., as a
procedural matter, rather than whether the terms of the
award were substantively equitable. In short, it focused
its attention on the procedures used by the parties to
negotiate the seniority integration issue, to arrive at
terms for arbitration of the issue when the negotiation
failed, and to assure fair representation of union mem-
bers in the arbitration itself.

“Our authority, however, over arbitration voluntarily
undertaken by employee representatives in connec-
tion with a Board-approved acquisition or merger
is confined to examining whether the arbitration was
fairly and equitably conducted.” CAB Order 82-4-75,
at 3.

The Board’s limited review of the merger (of senior-
ity lists) claimed to have violated $ 3 of the LPPs is con-
sistent with the limited jurisdiction over labor matters
conferred upon it by 49 U.S.C. $1378(b) and with the
Board’s own interpretation of the scope of that jurisdic-

A-17

tion, which is entitled to considerable weight. See, e.g.,
Youakim v. Miller, 425 U.S. 231, 235 (1976) (“The in-
terpretation of a statute by an agency charged with its
enforcement is a substantial factor to be considered in
construing the statute.”); Manchester Environmental
Coalition v. E.P.A., 612 F.2d 56, 59 (2d Cir. 1974). As
the Board has noted, despite its imposition of the LPPs.

“it has been the Board’s longstanding policy that
the matters encompassed herein should be resolved
by voluntary agreement between the carrier and the
labor groups or employees involved or, failing agree-
ment, by arbitration. This policy with respect to
seniority integration is reflected in sections 3 and 13
of the labor protective conditions.” American-Trans
Caribbean Merger, 57 C.A.B. 581, 585 (1971), aff'd
sub nom. American Airlines v. C.A.B., 445 F.2d 891
(2d Cir. 1971), cert. denied, 404 U.S. 1015 (1972).
( Footnotes omitted).

The purpose and scope of the LPPs is extremely limited:

“(W]e have characterized LPP’s as ‘an extraordinary
intervention . . . into the employer-employee relation-
ship.’ . .. [W]e have repeatedly refused to become
entangled in carrier-employee labor disputes, because
our jurisdiction is limited, we lack expertise in labor
relations, and there are better equipped, more com-
petent forums available to handle labor disputes.
Moreover, it is important to recognize that the pri-
mary intent of the Board’s LPP’s historically has
been to prevent disruptions in the naticnal air trans-
portation system. Their purpose has not been to
benefit carrier employees directly, or to avoid labor
unrest with particular air carriers.” Texas I[nter-
national-Continental Acquisition Case, CAB Order
81-10-66, at 11 (footnotes omitted).

A-18

In implementation of its limited authority the Board will
scrutinize a freely-negotiated integrated seniority list
“only on a showing of bad faith, or deliberate attempt to
subvert the Board’s order, or other compelling circum-
stances,’ Delta-C&S Seniority List, 29 C.A.B. 1347, 1349
(1959), affd sub nom. Outland v. C.A.B., 284 F.2d 224
(D.C. Cir. 1960). The Board will not find $3 of the
LPP’s satisfied unless it determines that the groups of
employees affected have been adequately represented in
formulating the list.

With these exceptions, which go to the “manner” in
which the arbitration was conducted, the CAB leaves the
resolution of all other issues to the parties or their
mutually-selected arbitrator. Indeed, the CAB has acknowl-
edged that a finding by it that seniority lists have been
integrated “in a fair and equitable manner” does not nec-
essarily bar petitioners f:om challenging the legality of
the lists themselves in court. In Delta-C&S Seniority List,
supra, 29 C.A.B. at 1350, it stated ‘after rejecting peti-
tioners’ claim that the merged list was not fair and
equitable: , {w]e take no position on whether petitioners
have a cause of action cognizable by the courts.” See also
Pan Am-TWA Route Exchange Agreement, CAB Order
No. 80-6-95, at 4 (“We wiil not... review the merits of
a challenged [seniority integration list] award, the merits
including questions of law and questions of fact.”:. In
iu case in which petitioner charged that he had been sub-
jected to age discrimination and sought damages, the CAB
explicitly stated that “{a]ge discrimination is outside the
scope of the LPP’s.” Caribbean-Atlantic Airlines, Iue.-
Eastern Air Lines, Ine., Acquisition Case, CAB Order
80-10-65, at 2.

Thus, because of the ADEA’s statutory grant of de
novo review and the CAB’s lack of authority to adjudicate

A-19

the age-discrimination issue later raised in the present
action, this action is not barred by reason of the collateral
attack doctrine. Our conclusion that the district court
has jurisdiction to consider the ADEA claims is not in-
consistent with the principal authorities relied on by
Judge Ward. For reasons already noted. City of Tacoma,
supra, and Lambert Run Coal Co., supra, are clearly dlis-
tinguishable. No ADEA, Title VII or similar claims
were asserted in Kesinger Vv. Universal Airlines, /nc.,
474 F.2d 1127 (6th Cir. 1973), and Oling v. Air Line
Pilots Ass’n, 346 F.2d 270 (‘7th Cir.), cert. denied, 382
U.S. 926 11965). Those two decisions did not rule upon
the substantive fairness of integrated seniority lists but
on whether the unions had breached their duty of fair
representation before the CAB, an issue over which the
CAB has jurisdiction because it bears directly on whether
the lists were arrived at in a fair and equitable “manner”
as provided for by LPP $3. But even if the CAD's
authority were enlarge? to permit it to rule on the sub-
stantive fairness of the integrated seniority lists, we be-
lieve, for the reasons already stated, that plaintiffs would
not be precluded from obtaining a de novo federal court
review of that issue. Gardner-Denver, supra; McDonald,
supra.

We find ourselves unable, for the reasons already in-
dicated, to follow the District of Columbia Circuit’s cleci-
sion in Carey v. O’Donnell, 506 F.2d 107 (D.C. Cir. 1974),
cert. denied, 419 U.S. 1110 (1975), upon which Judge
Ward relied. The court there held that the district court
lacked jurisdiction over plaintiffs’ claim that the defen-
dants had violated the ADEA, in view of the court’s ap-
proval on the same day, in Northeast Master Executive
Council v. C.A.B., 506 F.2d 97, cert. denred, 419 U.S.
1110 (1975), of the Board’s dismissal of petitions alleging
that the underlying integration of seniority lists had not

A-20

been arrived at in a “fair and equitable manner.” The
D.C. Circuit purported to rely on the rationales expressed
in Kesinger, supra, and Oling, supra, which are clearly
distinguishable for the reasons we have noted above. More-
over, it did not analyze the claims before the district
court, the limited authority of the CAB, and the right
to a de novo trial of ADEA claims, but merely stated in
conclusory fashion that the action amounted to a collateral
attack on the seniority lists approved by the Board.

Our holding that federal jurisdiction exists over
plaintiffs’ ADEA claims is not intended to imply that the
claims have merit or that plaintiffs will have the right
to reopen the integrated seniority lists formulated by the
parties’ mutually selected arbitrator. Although the com-
plaint’s allegations of “willful and continuous violation of
Section 4/a) of the ADEA” (Compl. 714, 16) at first
blush appear to sound in terms of discriminatory intent
With respect to each of the plaintiffs, this case is gov-
erned by $4/f)(2) of the ADEA, 29 U.S.C. § 623/f) 12).
That section insulates an employer or labor organization
from ADEA liability for observing the terms of a “bona
fide seniority system ... which is not a subterfuge to
evade the purposes” of the ADEA.

The criterion for determining whether a seniority sys-
tem is a “bona fide” one is stated in the pertinent regula-
tion issued under the Act, 29 C.F.R. § 1625.9/a) (1984),
which provides that “[{t]hough a seniority system may
be qualified by such factors as merit, capacity, or ability,
any bona fide seniority system must be based on length
of service as the primary criterion ...”. Since the merged
list uses length of service at the top and bottom ends of
the list and uses length of service combined with a ratio
between the two former lists for the middle of the merged
list, it would appear to satisfy the test that length of
service be the “primary criterion.”

A-21

With respect to the requirement that a seniority sys-
tem not be a “subterfuge,” a term that implies dis-
criminatory or evasive intent, as in $§ 703(h) of the Civil
Rights Act, 42 U.S.C. § 2000(e)-2(h), see American To-
becco v. Patterson, 456 U.S. 68, 64-65 (1982), the same
regulation states that “a purported seniority system which
gives those with longer service lesser rights . . . may,
depending on the circumstances, be a ‘subterfuge to evade
the purposes’ of the Act.” Jd. at $1625.8(b). Among
the circumstances to be considered in this case are tne
validity of the reasons advanced by the unions for the
use of a ratio methcd in the middle of the list, as well as
the validity of plaintiffs’ claim that defendants have
engaged in “willful” discrimination.

The mere fact that plaintiffs would have fared better
under a different scheme does not show that the merged
seniority list is a “subterfuge” to evade the ADEA, espe-
cially in view of the distinction that must be drawn be-
tween age and seniority, in the absence of any evidence
in the present record that the union representatives acted
in bad faith or with an age-discriminatory motive in
arriving at a compromise, or that Pan Am so acted in
accepting and implementing it. That compromise recog-
nized that a straight “time served” method would dis-
criminate unfairly in favor of a large number of fur-
loughed Pan Am pilots against actively employed Na-
tional pilots bringing jobs with them to the merger, and
it therefore adopted a ratio method for the middle portion
of the integrated seniority list. As the CAB observed:

“Arbitrator Gill was faced with totally opposed posi-
tions for the integration of the seniority lists, and
the parties were fully permitted to develop their
cases supporting their separate positions in a record
involving over 4,700 transcript pages and hundreds

A-22

of exhibits. In the end the arbitrator did what most
arbitrators do—he picked parts of the different posi-
tions and made compromises to arrive at what he
believed was an equitable result. There is no way,
given the sharply divergent and contested positions
of the parties, that the arbitrator could ever reach a
result that was fully acceptable to all parties—to say
nothing of the individual pilots and flight engineers
whose interests were represented in the proceeding.
That is an inevitable result of arbitration. The fact
that dissatisfaction remains is no basis for requiring
another seniority integration.” CAB Order 82-4-75,
at 13.

Plaintiffs’ claim that the defendant unions violated
their duty of fair representation in the CAB proceeding
stands on an entirely different footing from plaintiffs’
ADEA claim. To make out this claim plaintiffs must
prove that the “union’s conduct toward a member of the
collective bargaining unit [was] arbitrary, discrimina-
tory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190
(1967). Subsequent interpretations have established that
proof of mere negligence or errors of judgment on the
part of the union is insufficient.

“To succeed [in a suit for violation of the duty of

fair representation] under § 301 [of the Labor Man-

agement Relations Act, 29 U.S.C. $185], an em-

ployee must show ‘substantia) evidence of fraud, de-

ceitful action or dishonest conduct,’ . . . ‘hostile

discrimination,’ . . . arbitrariness or irrationality,
., or conduct in bad faith... .

“As long as the union acts in good faith, courts
cannot intercede on behalf of employees who may be
prejudiced by rationally founded decisions which
operate to their particular advantage.” ‘| Citations

A-23

omitted). Capobianco v. Brink’s Inc., 543 F. Supp.
971, 975 (E.D.N.Y. 1982), aff'd mem., 722 F.2d 727
(2d Cir. 1983).

The CAB’s statutory authority under 49 U.S.C.
$ 1486(\a), as amplified by $3 of the LPPs, requires it,
in order to rule upon whether seniority lists have been
integrated in a “fair and equitable manner,” to determine
whether the unions involved have fairly represented their
members in the negotiations and ensuing arbitration pro-
ceedings. Moreover, the CAB did just that in the present
case. The Board found, as had Arbitrator Gill, that the
interests of all the employee groups had been vigorously
represented throughout the proceedings and that neither
the Janus Group nor PAPF had shown a violation of the
unions’ duty of fair representation:

“Neither group, both formed to forward the views
of some Pan Am furloughees and pilots, respectively,
who were otherwise represented in the intra-union
arbitration by Pan Am Engineers and Pan Am pilots,
has shown that these union representatives breached
their duty of fair representation. The record before
us amply demonstrates that all union parties vigor-
ously advocated positions on seniority integration ad-
vantageous to their members. Janus Group, in addi-
tion, appeared in the arbitration to express, directly
to Arbitrator Gill, its position for furloughees. To
the extent that some of the parties failed to prevai!
in the substance of their views, and hence occasioned
disappointment for certain furloughees and pilots,
that is not grounds for our review of the intrinsic
nature of the integration system established by the
award. It is well-settled that the Board properly
‘decline{s] to review and to enter judgment on the
merits of * * * [union representatives’] negotiated

A-24

resolution of * * * [an internal union] seniority dis-
pute arising out of a merger’ if satisfied ‘that the
resolution was reached in a fair and equitable man-
ner.’ Here, the record shows that the labor parties
adopted fair and equitable procedures—four-way
negotiation, mediation, and final and binding arbitra-
tion—to resolve their differences on merged seniority:
and that the procedures were faithfully carried out—
even to the unanimous selection of an eminent arbi-
trator in airline seniority matters.” CAB Order
82-4-75, at 11 (footnote omitted).

Since the CAB is empowered to and did resolve the
fair representation claim, and since plaintiffs are not
entitled to de novo adjudication by a district court of that
claim, the district court’s dismissal of the claim as an
impermissible collateral attack on the CAB’s final order
is affirmed.

Appellees next contend that the district court’s dis-
missal of the action should be affirmed on the ground that
appellants’ ADEA claim is time-barred for failure to file
charges with the EEOC within the required 300 days
after “the alleged unlawful employment practice oc-
curred”. 29 U.S.C. $626(d)(2). This requires us to
“identify precisely the ‘unlawful employment practice’ of
which [the plaintiff] complains.” Delaware State College
v, Ricks, 449 U.S. 250, 257 (1980). Appellees argue that
the unlawful practice here occurred in September 1981
when the Gill arbitration award was filed and published
by Pan Am, more than 300 days before plaintiffs’ filing
of their ADEA charges with EEOC. Plaintiffs, on the
other hand, contend that the crucial event for ADEA
time-bar purposes did not occur until March 28, 1983,
when Pan Am first implemented the alleged discrimina-
tory seniority lists by making assignments in accordance

A-25

with them, as alleged in Par. 12 of their complaint, and
that their claim did not accrue until that time, which was
within 300 days prior to the filing of their ADEA charges
with the EEOC. Moreover, plaintiffs argue, even assum-
ing their claim first accrued in 1981, the violation was a
continuing one, thereby making timely their filing of
EEOC charges, and the implementation of the seniority
system was not a mere consequence or manifestation of
the earlier conduct. See Chardon v. Fernandez, 454 U.S.
6, 8 (1981).

We have recently held that “{w]hen employees are
hired or refused employment pursuant to a continuous
practice and policy of discrimination, the commencement
of the statute of limitations period may be delayed until
the last discriminatory act in furtherance of it, Associa-
tion Against Discrimination in Employment, Inc. v. City
of Bridgevort, 647 F.2d 256, 274 (2d Cir. 1981), cert.
denied, 455 U.S. 988 (1982), provided such a continuing
violation is clearly asserted both in the EEOC filing and
in the complaint.”* Muller v. I.T.&T., 755 F.2d 20, 25
(2d Cir. 1985). In Moreland v. NCR Corp., 586 F.2d
1096, 1103 ‘6th Cir. 1978), cert. denied, 441 U.S. 906
(1979), for instance, the court held that ‘“‘adoption of a
seniority system, if discriminatory as to age, constitutes
a continuing violation of the ADEA as long as that sys-
tem is maintained by the employer.” See also E.E.0.C.
Vv. Home Ins. Co., 553 F. Supp. 704 (S.D.N.Y. 1982);
but cf. Bronze Shields, Inc. v. N.J. Dept. of Civil Service,
667 F.2d 1074 (3d Cir. 1981), cert. denied, 458 U.S. 1122
(1982). Applying these principles here, we hold that the
alleged discriminatory violations in the present case must

3 At the request of the court, plaintiffs have submitted copies of
charges filed with the EEOC in which plaintiffs clearly assert
ongoing violations of the ADEA. The complaint also alleges
ongoing violations. See *% 14-18.

A-26

be classified as continuous ones, giving rise to claims
accruing in favor of each plaintiff on each occasion when
the merged seniority list was apolied to him, provided he
filed such charges with the EEOC, which he would be
required to establish on remand, Miller v. 1.T.T., supra,
755 F.2d at 25.

Appellants’ final contention, that appellees should be
estopped from asserting the ADEA time-bar defense, needs
little discussion. In Price v. Litton Business Systems,
Inc., 694 F.2d 963, 965 (4th Cir. 1982), the court refused
to find estoppei in the absence of a finding that the failure
to make a timely filing was in consequence “either of a
deliberate design by the employer or of actions that the
employer should unmistakably have understood would cause
the employee to delay filing his charge.” Accord Kriegs-
mann V. Barry-Wehmiller Co., 739 F.2d 357, 359 (8th
Cir.), cert. denied, 105 S.Ct. 512 (1984). See also Pfister
v. Allied Corp., 539 F. Supp. 224, 227 (S.D.N.Y. 1982)
(no estoppel where “no allegaiion that the defendant acted
in bad faith or deceitfully lured the plaintiff into settle-
ment discussions, or that it attempted in any way to
cause the plaintiff to miss the appropriate filing date’).

Appellants here have not satisfied their burden on
this issue. They make no estoppel argument against Pan
Am. Against the defendant unions, they fail to allege
detrimental reliance on any union representations. Nor
could they do so, in view of Pan Am’s posting of the
seniority lists in March 1981 and the retention by PAPF
in May 1981 of the same law firm that currently repre-
sents plaintiffs.

The order of the district court is affirmed ‘n part and
reversed in part. The case is remanded for further
proceedings consistent with this opinicn.,

A-27

APPENDIX A
PLAINTIFFS WHO FILED CHARGES WITH

E.0L.0.C. OR STATE AGENCY

NAME ADDRESS CITY
AINSWORTH JR 9365 S. Spencer Las Vegas
ALEXANDER DB 18 Birchwood Lane Ramsey
BANDY JM 7 Merwin Bk. Rd. Brookfield Ctr.
BARNES KE 2244 Nightingzele Dr. Santa Rosa
BENTON, JE Rt. 9, Box 275 Goldsboro
BERGAD JR P.O. Box ../5 Torrington
BILLINGS MX 641 S. Rivevshire Dr. Conroe
BLEDSOE RP P.O. Box 427 Cockeysville
BOLING JR 52 Squires Rd. Madison
BOWLES ME Rte. 6, Box 168A Charlottesville
BROWN JM 204 E. Deer Park Dr. Gaithersburg
BURMASTER RA Rte. 1, Box 349 E Leesburg
CAMPBELL JD 3718 Divisadero St. San Francisco
CARDINAL DP 552 Pinelawn Ave. Belleair
CLARKE FR 19 Viejo Way .Jovato
COOK JC 76 Davenport Dr. Stamford
COOL CE Box 151 Henderson

Harbor

CORY DC RD 2 Frenchtown
DAHONEY TG 129 Clapp Road Scituate
DAVIS MK 4908 Overview Dr.

Apt. 1212 Arlington
DELAVAN WP 67 Highpoint Dr. Gulf Breeze
DONNELLY WJ 15601 SW 83rd Ave. Miami
DURANT RJ 106 Hessian Hill Dr. Pennington
EAGER CE 103 Lincklaen St. Cazenovia
ECKEL R P.O. Box 30664 Jamaica

JFK Airport
ENDRESEN DA Box 45

Botsford Hill Rd. Roxbury
FINLEY CB P.O. Box 7671 Woodlands
FRAGA RM 1540 Mancha Dr. Boulder Cit:
FRANK RK Box 615 Shelter Island
FREEMAN CE 7747 Carrleigh Pkwy. Springfield
GAUTHIER RW 3322 Cowper St. Palo Alto
GRAY JE RFD 1, Box 186 Bethlehem
GREEN JG 498 Scotts Lndg. Rd. Southampton
GRISEL GR 7475 Estrella Cir. Boca Raton
HALL RH P.O. Box KK Weilflee:
HAMMES PL 24 Governors Lane Bethel
HANDLEY FK 2519 Manhattan Ave. Manhattan Beach
HANSEL KA P.O. Box 4021 Burlingame
HARGIS RO 225 Montalvo Rd. Redwood City

NV
NJ

MD

ZIP

89123
07446
06805
95401
27530
06790
77304
21030
06443
22901
20877
22075
94123
33516
94947
06902

13651
08825
02066

76017
32561
33157
08534
13035
11430

06783
77387
89005
11964
22152
94306
06751
11968
33433
02667
06801
90266
94011
94062

NAME

HERNDON WK
HOWE JG
HUBBARD DG
JARBOE RL

KAWAMOTO DK

KELLEY RC
KIRKMAN JD
KLAU DA
KORCHECK SM
LEE WR
LOCHER AH
LUDWIN RJ
LYNCH EJ
MALO ME

MANIOUDAKIS EX

MARKHAM DA
MATEI MM
MAYO DQ
MCAULEY GH
MCGRORY RC
MCVAY PR
MEIXSELL CF
MILLER JW
MOON EE
MURPHY BP
NORDMAN VJ
O’BRIEN WJ
O’NEILL RF
OBER RI
OLESEK FW
PARRISH BP
PAUL RV
PERRY RA
PICKEN WR
PLAT™E CR
POST RR
RAHISER WS
RENNINGS AA

SALKOVICS AJ
SCHWAB EA
SHEPARD HE
SLOAN GC
STANNARD LA
TAUBERT AR

A-28

APPENDIX A

ADDRESS

42 Crest Dr.

P.O. Box 101

5926 S. 73rd E Ave.
318 Lake June Dr.
6850 Glenview Dr.
483 NW 105th Dr.
2303 E. 2nd St. #3
15 Pond Side Lane
1480 Coronet Dr.
2106 Oriole CT

151 Clapboard Ridge
RR 1 North Rd.
3002 Yorkshire Rd.
11500 Fairway Dr. #507
RD 3 Box 372

7411 N.W. 8th Court
1913 Kenilworth Ct.

Rte. 2 Box 85, Sunset Dr.

928 Peninsula Ave #409

501 East Mill Road

Route 1 Box 63

202 Summer Ave.

15 Greta Dr.

745 Windward Rd.

5900 Sarah Ct.

5109 Green Acres Ct.

73 Princess Anne Ct

474 Pepperwood Ct.

3 Thornwood Ct.

9421 SW 147th St.

2970 Avalon Ave.

8800 SW 123d Ct., J-203

1152 St. John Place

48 Big Oak Lane

83 Kellogg Dr.

Route 1 Box 357

P.O. Box 306

Box 124 RD #2,
Jonestown Rd.

3144 Goldenspur

2615 Majestic Dr.

38 Jenkins Rd.

521 Altivo Ave.

129 Newton Ave.

Rte. 3, Foxrun Lane S

CITY

Little Silver
Greendell
Tulsa

Lake Placid
San Jose
Coral Springs
Bloomington

West Simsbury

Reno
Fairfield
Danbury
Mew Milford
Doylestown
Reston
Somerset
Plantation
Toms River
Ottsville
San Mateo
Flourtown
Roxbury
Horsham
Danbury
Jackson
Austin
Metairie
Warrenton
Marco Island
Setauket
Miami
Berkeley
Miami
Santa Ana
Stamford
Wilton
Newport
Branford

Oxford
Camarillo
Wilmington
Franklin
Watsonville
Norwalk
Newtown

ST

NJ
NJ
OK
FL
CA
FL
IN
CT
NV
CA
CT
CT
PA
VA
NJ
FL
NJ
PA
Ca
PA
CT
PA
CT
MS
TX
LA
VA
FL
NY
FL
CA
FL
CA
CT
CT
WA
CT

NJ
CA
DE
NJ
CA
CT
CT

ZIP

07739
07839
74145
33852
95120
33065
47401
06092
89509
94533
06810
06776
18901
22090
08873
33317
08753
18942
94401
19031
06783
19044
06810
39206
78731
70003
22186
33937
11733
33176
94705
33186
92705
06903
06897
99156
06405

07863
93010
19810
07416
95076
06851
06470

NAME
UGIANSKIS RX

VAN WYK PD
WARREN VF
WEAVER RH
WENK PJ
WILDER JB
WILLEUMIER RC
WIRKKI TK
WYSARD JF

ACKROYD KG
BLAYDON CJ
DATER MR
DUNPHY WW
ENGLISH RB
GASKILL JP
GERT WA
HAKIM PR

HOLLAND DK
KURTZ D

MOREY RL
NEUMEISTER JT
RHODES EA
STEFFAN KJ
TURNER EB .-
WAGER R
WEAVER LG

NAME
ABRAA/ M JW

ADAMS FE
ADAMS RJ
ALFORD TL
AMOS JI
ANDING JD
ANTILL WZ
ARCHER EL
ARCHER SH

A-29

APPENDIX A

ADDRESS

PO Box 16, Candlewood

Isle
68 New Garden Ave.
P.O. Box 579
1533 Sopera Ave.
52 Weillsweet Dr.
251 Hickery Lane
618 Hill Street
Box 423
RR 2, Box 91, West
Lake Rd.
5331 Castle Hills Dr.
245 West Maple Ave.
RD Box 5
4 Limekiln Re
103 Main St.
1335 Wood Park Dr.
8815 NE 28th St.
1881 Cragin Dr.

107 Pt O’ Woods Dr.
Paradise Valley Rd.

RFD #1 Box 310-W

295 Morningsun Ave.
9 Baldwin Dr.

3343 N.E. 116th St.
253 Farview Ave.

20 Mt. Foraker Ct.
Skyline Ranch Box 8
Elvirasteig 43

APPENDIX B

CITY

New Fairfield
Lancaster
Carnelian Bay
Coral Gables
Madison
Roxbury
Barrington
Salem

Mayville
San Diego
Langhorne
Salisbrry
Ridgefi ld
Centerbrook
Kennesaw
Bellevue
Bloomfield
Hills
Toms River

Bethlehem

Mill Valley
Sussex

N. Miami Beach
Long Valley
San Rafel
Jackson

1 Berlin 37

PLAINTIFFS WHO ARE OPTING
INTO THIS ACTION

ADDRESS
12831 Viscaino Rd.

8 Autumn Ridge Rd.
217 Woodland Dr.
83 Robin Ridge Dr.
2703 St. James Rd.
River Rd.

3459 NE 30th Ave.
506 S. Union Ave.
7340 SW 132nd St.

CITY

Los Altos
Hills

Weston

Osprey

Madison

Beimont

Wash Crossing

Lighthouse Pt

Fergus Falls

Miami

NY

NJ

NJ

NJ

MN

ZIP

06812
17603
95711
33134
06443
06782
60010
12865

14757
92109
19047
06499
06877
06409
30144
98004

48013
08753

06751
94741
07461
33160
07853
94903
83001

NAME

ARFSTEN KE
AVINELIS FE
BAKER FA
BALDINGER JE
BARKER HM
BARNETTE JL
BEENE JT
BEHRE RE
BERDEAUX BJ
BERGER RL
BETHEA WD
BLACK LD
BLUM JE
BRAISTED SC
BREEN CA
BRICKEY RE
BROWNING DG
BUTLER DE
BUTLER RE
BUTTERILL JB
CALVERT JD
CANEDY DJ
CANTARANO TF
CARROLL PL
CASEY TB
CASSOTIS JN
CAVALLARO CF
CHAMBERLAIN KS
CLACK RH
COHEN SX
COLES AE
COMPTON HG
COOKE WM
COOPER DE
COOPER JD
COSHLAND GC
CRISTMAN VD

CROWL DL
CUNNINGHAM JJ
CUTCHIN AA
DAVIS CR
DICKINSON DC
DIETER CJ
DORSEY RM

A-30

APPENDIX B

ADDRESS
616 Rinaldo St.
825 Wootten Dr.
17 Betsy Lane
P.O. Box 662

155 N. Harbor Dr. #1712

140 NE 53 Ct.

4028 Lynbrook Lane
101 Sagamore Dr.
P.O. Box 66-1335

3100 NE 49th St. #1102

2716 Creekbed Lane
RD 8 Box 236
137 Elm St.
5961 SW 17th St.
149 Northbridge Ave.
2314 South 22nd E.
740 Penfield St.
Wolzogenstr 17
3840 Wood Ave.
4101 NE 16th Ave.
10362 Center Dr.
4666 V'ernette Dr.
3530 W. 187th St.
967 W Rambling Dr.
18 Ellsworth Park
9 Forest St.
Box 704
6677 Villa Bonita Rd.
RR Box 380
Bozener Str 11
RD 1 Box 505-3
1 Cove Rd.
407 Sylvia Way
240 NW Ferry St.
RD #1 Box 93
2282 Dosinia Ct.
76 Locker St.,

P.O. Box 151
9 Hemlock Dr.
515 Milleross Rd.
RFD 2 Box 149
P.O. Box 3339
1212 Winter Spring B
258 East Wood Rd.
Roxbury Station

CITY

Santa Rosa
Kerman
Ambler
Pullman
Chicago

Ocala
Arlington
Murray Hill
Miami Springs
Ft. Lauderdale
Charlotte
Flemington
San Mateo
Plantation
Warwick

Salt Lake City
Longboat Key
1 Berlin 27
Coconut Grove
Ft. Lauderdale
Villa Park

El Cajon
Torrance

W. Palm Beach
Cambridge
Londonderry
Sharon

Las Vegas
Hamburg
1000 Berlin 62
Stockton
Brookfield

San Rafael
Poulsbo
Columbus
Reston

Beachwood
Deep River
Lancaster
Onancock

San Clemente
Winter Springs
Roxbury
Roxbury

ST

CA
CA
PA
wv
IL
FL
TX
NJ
FL
FL
NC
NJ
CA
FL
RI
UT
FL

FL
FL
CA
CA
CA
FL
MA
NH
CT
NV
NJ

NJ
CT
CA
WA
NJ
VA

NJ
CT
PA
VA
CA
FL
CT
CT

ZIP

95405
93630
19002
26421
60601
32671
76015
07974
33266
33308
28210
08822
94401
33317
02886
84109
33548

33133
33334
92667
92020
90504
33411
02139
03055
06069
89102
07419

08559
06804
94903
98370
08022
22091

08722
06417
17601
23417
92672
32708
06783
06783

NAME

DRENNAN DC
DREW HE
DUNKLEE JC
DWYER DJ
EUBBS SK
EDGERLY DF
EGERER RA
ELLISON GL
FAGERLAND DD
FALZARANO VL
FARRINGTO? *D
FELL DM
FERNANDES DR
FIGUEROA FH
FINDLAY DJ
FLATTER DE
FLEISCHER RH
FLYNTZ J
FOURNET DJ
FOXWORTH TG
FRIEND PE
FROST S
FUSTER AS
GAGE LC

GALLI RP
GEORGE RL
GICK RP
GIDDENS DR
GIROUARD NG
GOLIBER JT
GOOLSBY TE
GORMAN LR
GREINER RM
GUETTLER DP
HAMAN DB

HARLAN RR
HATCH TE
HEATHCOCK AD
HEEMSTRA JW
HEINRICH RW
HEWLETT BN
HICKS LM

HOFF TL
HOFFMAN DJ
HOFFMAN R

A-31

APPENDIX B

ADDRESS
219 Paseo Dei Rio

16200 Mt. Rose Highway

P.O. Box 4166

5 Summit St.

20 Mtn. Laurel Lane
57 Rita Dr.

1480 Bradley Rd.
20775 Salida Terr.
6000 93rd Ave. SE
7900 SW 146th St.
4260 Pines Rd.
P.O. Box 615

R.D. 6, Box 342

9280 Font’bleau Blvd.

P.O. Box 310

2630 NE 5ist St.
349 Vista Linda Dr.
63 Summit Rd.

154 Gerald Dr.

5449 Rutherford Dr.
2404 Lakefrt Dr.
2760 NE 23rd Place
8125 Westbourne Dr.
2255 Sunrise

11 Gill St.

6605 Tina Lane
2363 Greenswaro S.
390 Everett Place
1701 NE 64th St.

25 Pine Hill Bend
RD 1 Sunset Lane
P.O. Box 20862

465 Harwood Ave.
Gustav Freytag 15

PO Box 131, Candlewood

Isle

5850 Cameron Run Ter.

9 Appletree Way
524 Fawns Walk
Winston Dr.

P.O. Box 1575

Bogus Hill #248
169 Rutledge Ct.
1503 Quaker Ridge
1800 S.W. 75th Terr.
17 Skylerk Rd.

CITY

Moraga

Reno

Incline Village
Rensselaer
Fletcher

New Fairfield
Bow

Boca Raton
Mercer Island
Miami
Paducah
Homer
Flemington
Miami

Gig Harbor
Lighthouse Pt.
Mill Valley
Sparta
Danville
Woodbridge
Knoxville
Pompano Beach
Pensacola
Reno

Exeter
McLean
Warrington
Danville

Ft. Lauderdale
Ballston Lake
Washington Depo
Billings
Saiellite Ech.
1 Berlin 33

New Fairfield
Alexandria
Long Valley
Annapolis
Washington Depo
Allentown
New Fairfield
Conroe
Austin
Plantation
Bloomingburg

ST

CA
N*7
NV
NY
NC
CT
WA
FL
WA
FL
KY
AK
NJ
PL
WA
FL
CA
NJ
CA
VA
TN
FL
FL
NV
NH
VA
PA
CA
FL
NY
CT
MT
FL

CT
VA
NJ
MD
CT
PA
CT
TX
TX
FL
NY

ZIP

94556
89511
89450
12144
28732
06810
98232
33433
98040
33158
42001
99603
08822
33172
98335
33064
94941
07871
94526
22193
37922
33062
32506
89509
03833
22101
18976
94526
33334
12019
60794
59104
32937

06812
22303
07853
21401
06794
18105
06812
77302
78746
33317
12721

A-32

APPENDIX B
NAME ADDRESS CITY ST ZIP

HORROCKS AG 56 Old Bridge Rd. Brookfield CT 06804
HUBER DE 420 NE 9th Ave. Ft. Lauderdale FL 33301
HUDSPETH CB 1099 Tilton Rd. Sebastopol CA 95472
HUESMAN MJ 73 Shore Land Dr. Key Largo FL 33037
HUNSBERGER LM 7194 Hillcrest Dr. Macungie PA 18062
HURD TL P.O. Box 1384 Park City UT 84060
HUSKEY BP Rt. 7 Box 163, South

Rugby Rd. Hendersonville NC 28739
ISRAELITE DZ 116 Central Park So. New York NY 10019
JOHNSTON IR 2361 Morrison Lane Suisun CA 94585
JONES JH 741 Marshall St. Beverly NJ 08010
JORGENSEN CW 47 Mohawk Ave. Corte Madera CA 94925
JUNG DO Clayailee 44 1000 Berlin 33
KANE TJ 1228 S. Inverness Way Fresno CA 93727
KANODE JS Wingfield Res. Est.,

1763 Cocoplum Ct. Longwood FL 32779
KASPAR MA Box 321 Lumberton NJ 08048
KAST R 41 White Pine Dr. Brookfield Ctr. CT 06805
KAY RE RD 2 Box 162E New Hope PA 18938
KELLY PL P.O. Box 3318S Rd.,

Rhododendron Rd. Fitzwilliam NH 03447
KELLY WH 85 Viscount Dr., A-52 Milford CT 06480
KIEHLE GA 1486 Country Club Dr. Los Altos CA 94022
KILLER RE 3309 Melendy Dr. San Carlos CA 94070
KILLMO™ BC RT 1 Box 756 Moore Haven FL 33471
KLINE WJ P.O. Box 66 Elkton FL 32033
KNOWLES HW 1697 N. Goldeneye Ln. Homestead FL 33030
KNUDSON RC 2200 Panorama Way Salt Lake City UT 84124
LAMAR JW 7007 Erland Rd. Santa Rosa CA 95405
LAMBERT TD Laurel Lane New Castle NH 03854
LARSON LT 5213 NW 58th Court Gainsville FL 32606
LASH JF 578 Caber Drive Santa Rosa CA 95405
LAUMEYER RH Box 548 Teton Village WY 83625
LEET AC 4493 Faraone Court San Jose CA 95136
LEGARE MT 3761 NW 100th Ave. Coral Springs FL 33065
LESTER GT 2171 30th Ave. San Francisco CA 94116
LEWIS EW Box 2102 Castro Valley CA 94546
LIGHT HA 2870 NW 107 Ave. Coral Springs FL 33065
LIVINGSTON DB 19 Stoney Brook Rd. Holmdel NJ 07733
LONGLEY JD 240 Shore Drive, P.O.

Box 567 Ozona FL 33560

LOWRY JR 4 Miller Place Rd. Miller Place NY 11764
MACGLASHAN DH _ 78 Nut Plains Rd. Guilford CT 06437
MAGUIRE JM Harborview Dr., Box 321 Essex CT 06426
MANCHESTER SA_ 99 Broadmoor Ct. Novato CA 94947

981 Bluebird St.

MANN KA Naples FL 33942

NAME

MARINO JM
MASON T
MAYER RL
MCALINDEN GI
MCCONNELL RH
MCEWAN JL
MCKAY EA
MCLAY D
MCLEAN BE
MICHEL FL
MILLER C
MILLER KG
MONACO DR
MONTGOMERY DC
MOONEY WJ
MORRIS GS
MORRISON Ha
NEEDHAM FS
NELSON LM
NESSA NA
NEWBERRY JI
NEWMAN GM
NOLAN CC
NOTINE DM
ODOM HB
OLASZ E
OMURA LH
ORR CW

OTT DE
OUELLETTE CA
PAPA HW
PARKER RC
PARKER WS
PATE DC
PENN RA
PESZYNSKI PR
PIAVIS WW
PINGREY RH
PLASKON WG
PLATTS RP
POIRIER EJ
POPE TW
POUY FR
PROFT CJ
QUIMBY CF
RAGLAND JD

A-33

APPENDIX B

ADDRESS

25 Spring Garden Ave.

350 Orion Court
220 Ersilia Trail

3 Elm S., PO Box 194

1330 Concord St.

Rose Farm Center Rd.

19 Elizabeth’s Way
920 Lake Forest Rd.
1116 SW 4th Court
3215 Norman Dr.
235 Linden Dr.

764 Berkshire Dr.
P.O. Box 1768

2012 Leisure Dr. NW
10900 SW 112th Ave.
2115 Skyline Blvd.

18 Plaisted St.

1777 Coralway North
6999 Estes Dr.

Box 78

5530 Ambrose Drive
4189 Dimholt Court
503 Bay 5th St.

220 Jagoe St.

P.O. Box 1005

First Street

13 E. Townhouse Lane

P.O. Box 5182

556 So. Ely Blvd.
3806 Ashley Dr. S.
323 Beach Rd. North
245 E. 54 St., #157
Kniephof Str. 26A
4063 N. Canyon Rd.
1105 Via Media
4460 Lambert Dr.
114 Sandalwood Ct.
P.O. Box 1143

2024 Quincy Ct.

209 Patricia Ave.
3522 Central Ave.
36 Flying Cloud Rd.

4842 Fremont Ave. S.

2829 Ellis St.
980 SW 74th Terrace

CITY

Colts Neck
Merritt Island
Alamo
Hopewell

Los Altos
Lyndeboro
Chatham
Clearwater
Gresham
Reno
Boulder
Millbrae
Orinda
Winter Haven
Miami

Reno

Bangor

Vero Beach
Arvada
Solebury
Powersville
Reno
Winston Salem
West Islip
Denton
Sanibel
Connelly
Grand Praire
Incline Village
Petaluma
Mobile
Wilmington
New York

1 Berlin 41
Camino
Lafayette
Kennesaw
Santa Rosa
Mill Valley
Salina
Delran
Nashville
Stamford
Minneapolis
Bellingham
Plantation

ST
NJ
FL
CA
NJ
CA
NH
MA
FL
OR
NV
co
CA
CA
FL
FL
NV
ME
FL
co
PA
GA
NV
NC
NY
TX
FL
NY
TX
NV
CA
AL
NC
NY
CA
CA
GA
CA
CA
KS
NJ
TN
CT
MN
Wa
FL

ZIP

07722
32953
94507
08525
94022
03082
02633
33575
97030
89509
80302
94030
94563
33881
33176
89509
04401
32963
80004
18963
31074
89509
27104
11795
76201
33957
12417
750F1
89450
94952
36608
28405
10022

95709
94549
30144
95401
94942
67401
08075
37205
06902
55409
98225
33317

NAME

REDMAN FW
REMPE WH
ROBBINS RD
ROGERS GA
ROSS RM
RUPP RN
SABELLA RR
SALISBURY WT
SAVAGE KD
SCHAKE WE
SHAVER JK
SHEASLEY GF
SHELFKO KA
SHUMAN JH
SHUSTER JF
SLIFKA RL

SMITH CD
SMITH WT
SMITHSON RB
SONOMURA A
SPANGENBURG RB
SPILLANE WD
STAUFFER DL
STEGMANN EP
STEPHENSON JE
STOECKER GG
THIELE GF
THOMAS JR
THOMAS WM
THOMPSON JM
THORUP JS
TINGLE TH
TOOKE HW
VAN NOTE TE
VOTRUBA WK
WACHTEL MR
WAGNER DC
WAGNER RK
WAGNER RR
WALCHLI DC
WALTERS AE
WARD TB
WEBB RB

WEBER HL

A-34

APPENDIX B

ADDRESS

RR #1 Box 432

Lake Road

13 Winterberry Dr.

128 Byram Shore Rd.

2335 Odyssey Way

6 Summit Ct.

2720 NE 42nd St.

535 Fielder’s Lane

640 Ridgewood Rd.

4039 White Oak Ct.

48 Cottontail Rd.

16919 N.E. Clackamas

Rt. 3, Box 630 Bl

7901 SW 154 Terrace

RD #1 Achortown Rd.

4359 Mt Helix,
Highlands Dr.

9903 NW 19th St.

237 Redwood Lane

2253 Gilman Dr. W. #501

5152 Maple

9106 Lyon Park Ct.
1020 Aoloa Pl. #208A
P.O. Box 2627

1223 Eddie Dr.
Janick Strasse 75
P.O. Box 33-1150

2 Pine Tree Hill Rd.

RR #2 Box 952A, Hwy. 24

1018 Great Oaks Dr.
26505 Dutcher Creek
1845 N. Santa Rita

P.O. Box 3085

408 Timber Lane

3 Brookview CT

251 Crandon Blvd., #129

24 Hastings Dr.

53 Main St.

Rt. 2 Box 144A-5

165 Penn Harb Rd.

2524 Laguna Vista Dr.

P.O. Box 37

528 Parker Ave. SE

6420 Boca del Mar
Dr. #406

82 Eleven Levels Rd.

CITY

Bethel
Newtown
Amherst
Greenwich
Toms River
Woodbury
Lighthouse Pt.
Toms River
Key Biscayne
Sonoma
Norwalk
Portland
Spokane
Miami
Beaver Falls

La Mesa
Coral Springs
Cheshire
Seattle

Irvine

Burke

Kailua
Truckee

Port Orange
1 Berlin 37
Coconut Grove
Newton
Chester
Hopkinsville
Cloverdale
Tucson
Incline Valley
Newton Square
Ho-Ho-Kus
Key Biscayne
Northport
Ridgefield
Umatilla
Pennington
Novato
Pleasant Mount
Decatur

Boca Raton
Ridgefield

ZIP

06801
06470
03031
06830
08753
06798
33064
08753
33149
95476
06854
97230
99203
33157
15010

92041
33065
06410
98119
92714
22015
96734
95734
32019

33133
06470
07930
42240
95425
85719
89450
19073
07423
33149
11768
06877
32784
08534
94947
18453
30032

33433
06877

NAME
WIK DC
WILLETT WA
WILLIAMSON KA
WILTJER JR
WOOD CL
WOOLDRIDGE DW
WOOLSEY SD
WREN RP
YELTON RW
YOUNG GF
ZIPRIS M

TAYLOR GG
THOMAS HS
THOMPSON JP
THORNE ED
VOGEL RK

VAN GORDINER SB
WARE PN

WENTZ RL

WHITE RS
WILLIAMS DD

AUSTIN RF
BARNES PD
BEAN WS
BENTLEY TR
BOMBACH LA
BROWN RC
DOUGHERTY DM
ETHERSON JT
FENTNER CJ
FOSTER MB
GILKES DE
HANLEY MD
HASELBY JW
HERRERA FM

HYMAS HV
JENKINS DW
KERREY TW
KOSS CD
KYLE AM
LANGE RO
MARSHALL JF
McCABE JR

A-35

APPENDIX B

ADDRESS
2610 Patio Simpatico
Rt. 1, Box 263
9 Swan Lane
623 South Pitt St.
1809 Edenwald Lane
Rt. 3, Box 81
14 Creekwood Ct.
RFD 1, Box 516C
680 Miller Dr. 205W
P.O. Box 76
7411 S.W. 9th St.

10840 Nollwood Dr.
Unter Den Eichen 114
22763 A Voss Ave.
10467 Plum Tree Lane
1740 Donner Dr.

2503 Bethaway

8201 N.W. 37th St.
Box 137

15825 S.W. 87th Ave.
Holstwig 20

120 Candlewood Hgts.
35 Mistletoe Dr.
Beeren Str. 32-34

3809 Wooded Creek Dr.

547 W. Shore Tr.

16750 S.W. 90 Ave.

RD 7, Box 7544

428 Norwood Court

5322 SW 118 Ave.

246 2nd Ave.

917 Smith Dr.

20400 SW 50th PI.

Tegel Flughaven

Ten Rod Rd., RR 1,
Box 472

32492 RD 168

8753 Wimbledon Dr.

2100 Country Club Rd.

P.O. Drawer D

Blood St.

1099 31st Ave.

5 Cove Lane

1001 Crescent Dr.

CITY
Lake Havasu Cy
Dundee
Hauppauge
Alexandria
Lancaster
Muskogee
Danville
Heber City
Miami Springs
Stanfordville
Plantation

Chardon

1000 Berlin 45
Cupertino
Cupertino
Santa Rosa
Orlando

Coral Springs
Hope

Miami

1 Berlin 37

New Milford
Covington
1000 Berlin 37
Farmers Branch
Sparta

Miami
Stroudsburg
Fort Myers
Cooper City
Santa Cruz
Metairie

Ft. Lauderdale
1000 Berlin 51

Exeter

Visalia
Knoxville
Eustis

Miami Springs
Lyme

San Mateo
Eustis
Greencastle

ST ZIP
AZ 86403
OR 97115
NY 11788
VA 22314
PA 17601
OK 74401
CA 94526
UT 84032
PL 33166
NY 12581
FL 33317
OH 44024
CA 96014
CA 95014
CA £6404
FL S
FL 33065
NJ 07844
FL 33157
CT 06776
LA 70433
W. Germany
TX 75234
NJ 07871
FL 33157
PA 18360
FL 33907
FL 33330
CA 95062
LA 70005
FL 33330
W. Germany
RI 02822
CA 93291
TN 37923
FL 32726
FL 33266
CT 06371
CA 94403
FL 32726
IN 46135

NAME

O’CONNOR JH
O’DELL T
OVERBY WC
RICH RA
SAVOIE JC
SAXON BF
SCHLOTE FE
SCROGGIN GC
SMITH DP
STULL FP
TAYLOR JR
WATERS DR

DOSS WW
CRAHEN RR
GAY HM
O’BRIEN SA
STABENAU HM
WOLF WA
ZIESMER RA
ALMQUIST GN
ANDERSON AR
ACKINSON WP
BACON RN
BAILEY C
BISH LW
BROOKS RS
BURGER JJ
BURROUGHS WJ, Jr.
CRAIG DC
COBB JP

CROSS RL
FREDERIC GC
FULLER BB
GOELTZ FS
HUMBLE RA
HAWES LJ
KANE M
KELLEY R
KLEIN RL
KELLEY EG
LAMP RJ
LEINBACH SP, Jr.
LEWIS JW
LITTLEPAGE MJ

A-36

APPENDIX B

ADDRESS

101 Gray Rock Rd.
307 Kent Dr.

7802 Cherry Place Ct.
1205 W. Dunne Ave.
6544 Harbour Rd.
1092 Serena Way
20 Roton Ave.

5325 SW 63d Ave.
Rt. 1, Box 975B99
885 N.W. 6th Dr.
5116 S.W. 72d Ave.
411 S.E. 13th Ave.

14211 SW 104th Ave.
3533 4th Lane, SW
RD #1, Box 1329
P.O. Box 1104

20439 Interlachen Ln.
Box 3016

501 29th Ave. Ct.

SR #1, Box 127-M
Wareneck P.O.
Hohenzollern 1B

348 Velma Dr.

RR #5, Echo Vailey Rd.

752 Ridge Dr.

7440 NW 6th St.

5 Woodsvale Rd.

9 Maple Ln.

1955 NW 108 Ln.

Berlin Pilot Mail PAA
Hangar 17 MR

2225 Colusa Hwy.

Box 6152

5072 Country Club Way

2168 Candelero

5770 SW 114th Ter.

1407 Ball Road

Johannisburgeralle 3

295 Dayton Rd.

Box 322

14300 Clayton Rd.

6300 Rogers Circle

317 Fairmont Ave.

Box 43 Star Rt.

186 Vineyard Rd.

CITY

Trumbull
Cocoa Beach
Humble
Morgan Hill
N. Lauderdale
San Marcos
Rowayton
Miami
Pensacola
Boca Raton
Miami
Pompano Beach

Miami

Vero Beach
Bangor
Hollister
Troutdale
Stateline
Poyallup
Hawley
Wareneck
1000 Berlin 39
Largo
Newtown
McLean
Plantation
Madison
Brookfield
Coral Springs

Jamaica
Yuba City
Incline Vlg.
Pt. Orchard
Santa Fe
Miami
Eagle Pt.

1 Rerlin 19
S. Glastonbury
Rowayton
San Jose
Lincoln
Winchester
Pleasant Mt.
Huntington

TX

CT

NE

NY

ZIP

06611
32931
77346
95037
33068
92069
06853
33155
32507
33432
33155
33060

3317€
32962
18013
95024
97060
89449
98371
18428
23178

33540
06420
22101
33317
06443
06804
33065

11430
95991
89450
98366
87505
33156
97527

06073
06853
95127
68506
22601
18453
11743

NAME

LONG TE
MEFFERT MD
McKAY DI
MERCIER RD
NEUWALD EJ
NEWSTROM HM
PANZER DA
PARRAGA WA
PENWELL GS
PHILLIPS, CM
REMELY B
RHODES SS
SMITH LW
SMITH W

A-37

APPENDIX B

ADDRESS

1530 Alabama Dr.
Gelding Hill Rd.
Teel Rd.

8 Gina Dr.

Box 4074

Box 787
Beergnstrasse Fa
Box 3753

24290 Sailview Dr.
Fechnerstr. 16
518 N 17th Ave.

1956 Port Cardiff Pl.

Rt. 1, Box 420
Box 962

CITY

Winter Park
Sandy Hook
Fairfield
Centerport
Tequesta
Somis

1 Berlin 37
Incline Village
Elmira

1 Berlin 31
Bozeman
Newport Bch.
White Salmon
San Mateo

ST

FL
CT
NY
NY
FL
CA

NY
OR

MT
CA
WA
CA

ZIP

32789
06482
13336
11721
33458
93066

89450
97437

59715
92660
98672
94403

Appendix 2
A-38

Opinion of the District Court
THE COURT: This is the decision of the Court.

After oral argument in open court, plaintiffs, John C. Cook,
et al., have failed to demonstrate that the instant action is
anything other than a collateral attack upon an order of this
Civil Aeronautics Board (“CAB”) that was not appealed in ac-
cordance with the provisions of Section 1006 of the Federal Avia-
tion Act (49 USC Section 1486(a)).

Such challenges to an order of that agency directly contravene
the comprehensive regulatory scheme established by Congress
in the Federal Aviation Act of 1958.

It is by now well settled that federal district courts are
powerless to adjudicate such actions. See City of Tacoma v. Tax-
payers of Tacoma, 357 U.S. 320, 334-337 (1958); Callanan Road
Improvement Co. v. United States, 345 U.S. 507, 512-513
(1953); Lambert Run Coal Co. v. Baltimore ¢> Ohio R.R. Co.,
258 U.S. 377, 381-382 (1922); City of Rochester v. Bond, 603
F.2d 927 (D.C. Cir. 1979); Carey v. O’Donnell, 506 F.2d 107,
110 (D.C. Cir. 1974); Kesinger v. Universal Airlines, Inc. , 474
F.2d 1127 (6th Cir. 1973); Oling v. Air Line Pilots Association,
346 F.2d 270 (7th Cir. 1965).

Plaintiffs’ reliance on Clayton v. Republic Airlines, Inc. , 716
F.2d 729 (9th Cir. 1983) is misplaced. As the Ninth Circuit ex-
plained in Clayton, the issue with which that court was con-
fronted was one of first impression in the Ninth Circuit and had
not been the subject of the holdings in Carey, Kesinger, or Oling.

See Clayton v. Republic Airlines, Inc. surpa, 716 F.2d at 730.
See also Zapp v. United Transp. Union, 727 F.2d, 617, 627 n.16
(7th Cir. 1984).

Moreover, the court finds plaintiffs’ reliance on McDonald
v. City of West Branch, Mich., 104 S. Ct. 1799 (1984) and Alex-
ander v. Gardner Denver Company, 415 U.S. 36 (1974) unper-
suasive. Stated simply, those cases are inapplicable to the instant
context. In both McDonald and Alexander the Supreme Court

A-39

addressed the issue of whether or not a federal court may ac-
cord pre-inclusive effect to an unappealed arbitration award
that had been rendered pursuant to a collective bargaining
agreement. In both cases, the Supreme Court declined to hold
that the arbitral award precluded, under the doctrine of res
judicata, litigation under federal statutory schemes specifically
designed to vest control over instances of discrimination with
the judiciary.

The instant action, however, does not rise or fall with the
doctrine of res judicata. Instead, plaintiffs are precluded from
raising their claims in this court under the principle that col-
lateral attacks in a federal district court on the orders of ad-
ministrative agencies are not permitted. As the Supreme Court
earlier explained in City ef Tacoma v. Taxpayers supra, 357
U.S. at 336-37:

“(U)pon judicial review of the Commission's order,
all objections to the order, to the license it directs to
be issued, and to the legal competence of the licensee
to execute its terms, must be made in the Court of
Appeals or not at all. For Congress, acting within its
powers, has declared that the Court of Appeals shall
have ‘exclusive jurisdiction’ to review such orders, and
that its judgment ‘shall be final,’ subject to review by
this Court upon certiorari or certification. Such
statutory finality need not be labeled res judicata,
estoppel, collateral estoppel, waiver, or the like, either
by Congress or the courts.”

Accordingly, the court is constrained to hold that it lacks
subject-matter jurisdiction over the causes of action asserted in
plaintiffs’ complaint. Defendant Pan American World Airways,
Inc.’s motion to dismiss the complaint is granted. The motions
of defendants Air Line Pilots Association International, and
Flight Engineers International Association, Pan Am Chapter,
to dismiss the complaint or in the alternative for summary judg-
ment are granted.

A-40

The motion of Charles P. Caudle and Vincent Wynne to in-
tervene is denied as moot.

The respective motions shall be endorsed in accordance with
the oral decision of this court.

The action is dismissed in its entirety without prejudice to
the right of plaintiffs to petition the CAB for a reopening of
the proceedings conducted in that forum or to seek relief in any
other appropriate forum. No costs.

It is so ordered.

The clerk is directed to enter judgment in accordance with
this decision.

Is there anything further?
Thazk you.

I (We) hereby certify that the torego-
ing is a true and accurate transcript to
the best of my (our) skill and ability
from my (our) stenographic notes of
this proceeding.

/S/
Official Court Reporter

Appendix 3

A-41

THE FEDERAL AVIATION ACT
Section 1006 (49 U.S.C.§ 1486):
xx
Judicial review
Orders subject to review; petition for review

(a) Any order, affirmative or negative, issued by the Board
or Administrator under this chapter, except any order in respect
of any foreign air carrier subject to the approval of the President-
as provided in section 1461 of this title, shall be subject to review
by the courts of appeals of the United States or the United States
Court of Appeals for the District of Columbia upon petition,
filed within sixty days after the entry of such order, by any per-
son disclosing a substantial interest in such order. After the ex-
piration of said sixty days a petition may be filed only by leave
of court upon a showing of reasonable grounds for failure to
file the petition theretofore.

Venue

(b) A petition under this section shall be filed in the court
for the circuit wherein the petitioner resides or has his prin-
cial place of husiness or in the United States Court of Appeals
for the District of Columbia.

Notice to Board or Administrator; filing of record

(c) A copy of the petition shall, upon filing, be forthwith
transmitted to the Board or Administrator by the clerk of the
court, and the Board or Administrator shall thereupcen file in
the court the record, if any, upon which the order complained
of was entered, as provided in section 2112 of Title 28.

Power of court

(d) Upon transmittal of the petition to the Board or Ad-
ministrator, the court shall have exclusive jurisdiction to affirm,

A-42

modify, or set aside the order complained of, in whole or in
part, and if need be, to order further proceedings by the Board
or Administrator. Upon good order cause shown and after
reasonable notice to the Board or Administrator, interlocutory
relief may be granted by stay of the order or by such mandatory
or other relief as may be appropriate.

Conclusiveness of findings of fact; objections

(e) The findings of facts by the Board or Administrator, if
supported by substantial evider.ce, shall be conclusive. No ob-
jection to an order of the Board or Administrator shall be con-
sidered by the court unless such objection shall have been urged
before the Board or Administrator or, if it was not so urged,
unless there were reasonable grounds for failure to do so.

Review by Supreme Court

(f) The judgment and decree of the court affirming, modify-
ing, or setting aside any such order of the Board or Administrator
shall be subject only to review by the Supreme Court of the
United States upon certification or certiorari as provided in sec-
tion 1254 of Title 28.

xx

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0424%3A2. Public record. Not legal advice.