Opposition Brief — McDonald v. United Air Lines, Inc.

Supreme Court brief1985

Ask Donna

What actually matters in this document.

Text

No. 84-1412 APR 10 (985

ALEXANDER L. STEVAS.

IN THE CLERK

Supreme Court of the United

OCTOBER TERM, 1984

LIANE BuIx MCDONALD,

on her own behalf and on behalf

of all others similarly situated,

Petitioner,

UNITED AIR LINES, INC.

and

ASSOCIATION OF FLIGHT ATTENDANTS,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF OF ASSOCIATION OF FLIGHT ATTENDANTS

IN OPPOSITION

STEPHEN B. MOLDOF

(Counsel of Record)

PETER HERMAN

COHEN, WEISS AND SIMON

330 West 42nd Street

New York, NY 10036

(212) 563-4100

Counsel for Respondent

Association of Flight Attendants

WILSON - Epes PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

@ MG. 00

QUESTION PRESENTED

Whether, on the basis of the specific factual circum-

stances of this case, the Court below properly declined to

modify the burden of proof standard adopted by the Dis-

trict Court and rejected petitioner’s demand that all cases

decided adversely to claimants be retried, when peti-

tioner clearly understood the burden of proof standard

and yet delayed mounting any challenge thereto before

any court until after hundreds of trials had been held?

(i)

a te

> — @

= =

Ce a ae

TABLE OF CONTENTS

gy |

Ny ey | >

STATEMENT

I I scenes ssinseccsnenseccees

REASONS WHY THE WRIT SHOULD NOT BE

GRANTED

CONCLUSION

(iii)

TABLE OF AUTHORITIES

Cases: Page

Albemarle Paper Co. v. Moody, 422 U.S. 405

IIIT” scissartccdasienssnocssnosigaibcnneechenelonbisie tadekd nic bisa tcachtces datades th 8

Arlinghaus v. Ritenour, 622 F.2d 629 (2d Cir.),

cert. denied, 449 U.S. 1018 (1980) —...0000 13

Association Against Discrimination in Employ-

ment, Inc. v. City of Bridgeport, 647 F.2d 256

(2d Cir. 1981), cert. denied, 455 U.S. 988

FEE cs sealsecaae encletieecacudneba audit eubiadesuaecetaesis 10

Avondale Shipyards, Inc. v. Vessel Thomas E.

Cuffe, 434 F.Supp. 920 (E.D. La. 1977) ............ 8,9

Baltimore Contractors, Inc. v. Bodinger, 348 U.S.

ERR a RIOR RINE DEES LA OR 7,10

Brenner v. World Boxing Council, 675 F.2d 445 (2d

Cir.), cert. denied, 459 U.S. 835 (1982) _........... 9

Browzin v. Catholic University of America, 527

fe a | ee ee ene i)

Cannon v. University of Health Sciences /The Chi-

cago Medical School, 710 F.2d 351 (7th Cir.

SARS TEINS Hei MO RP BAERGA Se a Ae Coe atc RANE 8

City of Newport v. Fact Concerts, Inc., 453 U.S.

a 13

Commissioner v. Gordon, 391 U.S. 83 (1968) ........ 13

Coopers & Lybrand v. Livesay, 437 U.S. 463

ERR ROR SAU tet Se ee oe ne PA 7

Coyner v. United States, 103 F.2d 629 (7th Cir

EE SI ates ke lane aA Sak ne ae NAA 8

Cruz v. Hauck, 515 F.2d 322 (5th Cir. 1975),

cert. denied, 424 U.S. 917 (1976) .....00000.. ee. 7,8,9

Curtiss-Wright Corp. v. General Electric Co., 446

ae okbeaamniodén 7,11

Dayton Board of Education v. Brinkman, 433 U.S.

SING ©, «aR ce ener a nO 11,12

Deckert v. Independence Shares Corp., 311 U.S. 282

a comnaiice 8

Diamond Door Co. v. Lane-Stanton Lumber Co.,

605 F.2d 1199 (9th Cir. 1974).................000.......... 8

Ellis v. City of Chicago, 667 F.2d 606 (7th Cir.

1981) ......... LE NP. Ch ett EO OnST 9

TABLE OF AUTHORITIES—Continued

Page

Firestone Tire & Rubber Co. v. Risjord, 449 U.S.

Se i aa ae 7

Franki Foundation Co. v. Alger-Rau & Associates,

Inc., 518 F.2d 581 (8d Cir. 1975) ............22.......... 7

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

aie TI diessbepcaipaccceekeis peated tenn Mabe. 2,9

Hayes v. Foodmaker, Inc., 634 F.2d 802 (5th Cir.

) RUE nth ie eRe Un Dest isi seat IER eR eR 8

In Re Chicken Antitrust Litigation American Poul-

try, 669 F.2d 228 (5th Cir. 1982) ........0000002. x

International Brotherhood of Teamsters v. United

ee Ck GS Es. yf Seeman ne Tene 2,4, 10

Kay v. Austin, 621 F.2d 809 (6th Cir. 1980) _........ 10

Langnes v. Green, 282 U.S. 531 (1931) —.....0002.. 8

Mabey v. Reagan, 537 F.2d 1036 (9th Cir. 1976) .... 8

McDonald v. United Air Lines, Inc., 587 F.2d 357

(7th Cir. 1978), cert. denied, 442 U.S. 934

CIID insctbiacaiisncoteciahanieeeticcosclehmmadoametgs inane ee ese ee 2,7,11

McKenzie v. Sawyer, 684 F.2d 62 (D.C. Cir. 1982)... 10

Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981).. 11, 12

Response of Carolina, Inc. v. Leasco Response, Inc.,

Gar v.00 aeee Ce Ce, Pere... 8

Retail Store Employees Union, Local 782 v. Sav-on

Groceries, 508 F.2d 500 (10th Cir. 1975) ........... 12, 13

Rexford v. Brunswick-Balke-Collender Co., 228

Ee I I wiccicesecnccscthasici nadie usutlasssbsnancpuocshabeaate 8

Rogers v. Societe Internationale, Etc., 278 F.2d

as SID aeidccnsttinrvarccchcesaeaesdnceaieadalanas 8,9

Romasanta v. United Air Lines, Inc., 27 EPD

™ 32,353 (N.D. Ill. 1982), aff'd, 717 F.2d 1140

(7th Cir. 1983), cert. denied, 104 S.Ct. 1928

7 || RRR eters nt OR ny 2,7

Sears, Roebuck & Co. v. Mackey, 351 U.S. 427

INE ska vce cciuciavanaddeacadecaasbieentanaabiicd asiacncre 7

Sherrill v. Royal Industries, Inc., 526 F.2d 507 (8th

a - UPR Diecast bess vslcniane siti pisctipalen facteatenadeaeaenaiencadnanes 7

Skogen v. Dow Chemical Co., 375 F.2d 692 (8th

RAs TT asso. naepttentencnessbuacimeiiadaiseceens a memeuaas 9

TABLE OF AUTHORITIES—Continued

Page

Spaulding v. University of Washington, 740 F.2d

686 (9th Cir.), cert. denied, 105 S.Ct. 511

| RSE EI RR ARIS APEC CeO eed 8

Texas Department of Community Affairs v. Bur-

oa Ge eae. ew CRORE) .....................-...0...4....... 4

Thompson v. Sawyer, 678 F.2d 257 (D.C. Cir.

ale EASED ae PER cic ie ey ee 9

Trustees of Joint Welfare Fund of Int’] Union of

Operating Engineers v. Nolan, 549 F.2d 871 (2d

ER eA SSSSOMN RS SAR Rae Me nian vaKN Nene 8

United Air Lines, Inc. v. McDonald, 482 U.S. 385

NG) a A re es on ERE RODS 1

United States v. Cline, 388 F.2d 294 (4th Cir.

EN RSS Ia Ne I rE NC ae 8

USAchem, Ine. v. Goldstein, 512 F.2d 163 (2d

FEILER Ea er ase ee SMe ee AeeS 10

Will v. Calvert Fire Insurance Co., 437 U.S. 655

a ean iodnageactinoens 11, 12

Williams v. Rhodes, 393 U.S. 23 (1968) .........0.000.... 10

Statutes:

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

gcc se cnc tic Sou wo aucsielbe 4,9

United States Code

TS | eee een 10

REARS ene eee rcet eae 27

| ee 10

IN THE

Siywenw Court of the United States

OCTOBER TERM, 1984

No. 84-1412

LIANE BuIx McDONALD,

on her own behalf and on behalf

of all others similarly situated,

Petitioner,

UNITED AiR LINES, INC.

and

ASSOCIATION OF FLIGHT ATTENDANTS,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF OF ASSOCIATION OF FLIGHT ATTENDANTS

IN OPPOSITION

STATEMENT OF THE CASE

A. The original underlying action was directed at a

“no-marriage”’ rule maintained by United Air Lines

(“United”) which previously had been eliminated and

declared illegal sex-based discrimination. 2a.’ After

Liane McDonald intervened, United Air Lines, Inc. V.

McDonald, 482 U.S. 385 (1977), a class was certified.

1 Citations of Opiniens and Orders of the Courts below are to

pertinent pages in Petitioner’s Appendix (“a’’). Other citations

are to the record on appeal (“R.” or “S.R.”).

In 1978, the Court of Appeals held that claimants who

resigned from United “must, as counsel for the plaintiff

acknowledged . . . show that their retirement was in-

voluntary and on account of the invalid rule to be en-

titled to relief,” McDonald v. United Air Lines, Inc., 587

F.2d 357, 360 n.4 (7th Cir. 1978), cert. denied, 442 U.S.

934 (1979), and that the burden of establishing entitle-

ment would be more difficult for those who, unlike the

original plaintiffs, had resigned without demonstrable

protest. Id.

On remand, the Association of Flight Attendants

(“AFA”) intervened to represent the incumbent flight

attendants. With the concurrence of all parties, the Dis-

trict Court first resolved the classwide reinstatement/

seniority issues. Following a trial under the guidelines

of Franks v. Bowman Transportation Co., 424 U.S. 727

(1976), the Court concluded that claimants who could

establish that they left United involuntarily because of

the no-marriage rule would be eligible for reinstatement

with full retroactive seniority for compensation and

benefits, but with partial retroactive seniority for com-

petitive purposes, because full competitive seniority would

cause unprecedented “unusual adverse impact” to in-

cumbents and therefore could not equitably be awarded.

Romasanta v. United Air Lines, Inc., 27 EPD { 32,353

(N.D. Ill. 1982). McDonald promptly obtained interlocu-

tory review pursuant to 28 U.S.C. § 1292(b). The Court

of Appeals affirmed in all respects, concluding, inter alia,

that, consistent with Franks, the class had been awarded

the fullest possible relief which would not result in unu-

sual adverse impact to incumbents. Jd., 717 F.2d 1140,

1157, 1159-60 (7th Cir. 1983), cert. denied, 104 S.Ct.

1928 (1984).

In conformance with International Brotherhood of

Teamsters v. United States, 431 U.S. 824, 371, 376

(1977), the District Court directed that individual en-

titlement hearings be held before special masters pur-

suant to an Order of Reference. 34a-40a. Paragraph 4

of that Order provides that “[t]he claimant has the bur-

den of proving that she is a member of the class,” 4a,

36a; paragraph 5 provides that, upon proof that a claim-

ant was married within 90 days of her resignation from

United, “the burden of going forward” shifts to those

opposing reinstatement. 4a; 36a. |

No party challenged the burden of proof standard of

paragraph 4 of the Order of Reference. Prior to com-

mencement of any entitlement hearings, AFA moved to

reconsider paragraph 5, urging that a claimant’s marital

status contemporaneous with resignation should only be

an additional factor providing “some indication” as to

the cause of resignation, under paragraph 6 of the Or-

der. 5a. McDonald’s opposition to the motion, quoted in

the decision below, explicitly recognized that regardless

of any shift in the burden of production, “the burden of

persuasion that the termination is because of the [no-

marriage} rule stays on the claimant.” 5a (emphasis

added).

The District Court, orally ruling upon AFA’s motion,

held that the mere showing of marriage within 90 days

of termination would be insufficient to shift even the

burden of going forward, S.R.1239, Vol. 4 at 4-5, and

reiterated that, in accordance with paragraphs 4 and 5

of the Order of Reference, only “the burden of going

forward, not the burden of persuasion,” shifted to de-

fendant once a claimant “has made a prima facie case,”

id. at 5; “the burden of proof always remains on the

plaintiff.” Jd. at 6.

It was not until nearly nine months after issuance of

the Order of Reference and after hundreds of entitle

ment hearings that McDonald first challenged the Or-

der’s burden of proof standard in ‘conjunction with her

request that the District Court review the masters’ rul-

ings in ten individual entitlement cases. 9a; 5a-6a;

R.927. The District Court adhered to the requirement

of the Order of Reference that claimants bear the bur-

den of proving entitlement, 22a-23a, and rejected Mc-

Donald’s claim that the masters had applied fixed evi-

dentiary rules to determine entitlement. 23a-24a.

While McDonald claimed that modification of the bur-

den of proof standard would require rehearings of all

entitlement decisions adverse to claimants, 9a; 21la-22a,

she opposed any stay of entitlement hearings, R.733;

S.R.1239, Vol. 5, and deferred processing her appeai be-

fore the Seventh Circuit until the District Court reviewed

additional individual entitlement decisions. 2a-3a; 29a-

33a. By the time the burden of proof issue was consid-

ered by the Court of Appeals, over 600 entitlement hear-

ings had been held. 9a; S.R.1266-1288.

B. The Court of Appeals held, as it had in 1978, that

“resignees must carry the burden, in order to be con-

sidered class members, of proving that they did resign

involuntarily,” 6a n.2, for “only those who were in fact

injured are entitled to relief.” 7a. Recognizing that

“each Title VII case may be unique in its own factual

setting,” 8a, and finding that neither Teamsters nor

Texas Department of Community Affairs v. Burdine, 450

U.S. 248 (1981), fit the circumstances presented, the

Court directed its focus to the “unique... factual set-

ting’ of this case. 6a-8a.

The Court of Appeals found the distinct burdens of

proof and production of paragraphs 4 and 5 of the

Order of Reference “abundantly clear,” 8a, and never

altered by the District Court. 9a. Nevertheless, al-

though it was “clear that the plaintiffs interpreted the

Order of Reference to shift only the burden of produc-

tion, and not the burden of proof, to the defendant once

the claimant has made the threshold showing,” 5a, Mc-

Donald “failed to object to the Order when [she] had

ample opportunity to do so before the beginning of the

individual hearings,” and “wait{ed] to challenge the Or-

der until after several hundred hearings ha[d] been

held.” 9a; 5a-6a. The Court concluded that under such

circumstances, to suddenly alter the burden of proof and

permit McDonald to “force rehearings” of the hundreds

of entitlement decisions adverse to claimants would “not

further the goal of efficient judicial administration,” 9a,

in this already “long and tortuous” litigation. la. Turn-

ing to McDonald’s challenge to the application of the

principles of the Order of Reference in nine individual

cases, the Court of Appeals affirmed six, remanded two

for further fact-finding, and reversed one. lla-17a. Me-

Donald’s Petition for Rehearing was denied. 86a-87a.

REASONS WHY THE WRIT SHOULD NOT BE GRANTED

I. The Appellate Court’s Acceptance of the Burden of

Proof Standard Established by the District Court and

Applied, Without Objection, in Hundreds of Cases, Is

Consistent With Rulings of This Court and Other

Circuits and Does Not Merit Supreme Court Review.

A. The petition rests on the erroneous premise that

the decision below enunciates a general “rule” or “policy”

requiring “parties in complex litigation” to pursue piece-

meal appeals from interlocutory orders or forfeit their

right to appellate review. Petition (“Pet.”), pp. 8-13.

The ruling does nothing of the kind; it is grounded in

and limited to the “unique . . . factual setting” of this

case, 8a, which revealed the clear inequity of permitting

McDonald to secure retrials of hundreds of cases when

such drastic consequences could have been avoided had

McDonald promptly challenged the “abundantly clear”

burden of proof standard, 8a, which governed the con-

duct of those trials. This fact-based ruling does not

merit Supreme Court review.

The Court of Appeals properly found that McDonald

was aware from the time the District Court issued its

Order of Reference that the Order “shift({ed] only the

burden of production, and not the burden of proof,” to

defendant once a claimant established a prima facie case

and that the ultimate “burden of persuasion” always

“stays on the claimant.” 5a. Despite the fact that the

District Court never altered that standard, 9a, McDonald

mounted no challenge to the burden of proof “until after

several hundred hearings [had] been held.” Id.* Even

after the District Court rejected her tardy challenge, she

resisted any stay of entitlement hearings and deferred

processing her appeal, so that by the time the Court of

Appeals considered the matter, over 600 hearings had

been held. S.R.1266-1288. It was these specific factual

circumstances, not some broad “rule,” which prompted the

Court to reject McDonald’s attempt to modify the Order

of Reference and “force rehearings” of hundreds of en-

titlement claims. 9a.

The Court’s careful analysis of the record negates Mc-

Donald’s assertion that her appeal was rejected as “un-

reviewable.” Pet., pp. 7, 11, 13. On the contrary, the

Court considered the issues presented and, taking into

account the specific factual circumstances, refused to alter

the burden of proof established by the District Court,

affirming, reversing, and remanding the various matters

appealed. 3a.

B. McDonald’s suggestion, Pet., pp. 8-11, 13, that this

fact-based ruling “places in peril all claimanis” and

threatens the policy against piecemeal appeals, ignores

the purposes of that policy and the basis for the ruling

below.

2 McDonald’s contention that the burden of proof standard was

under continued reconsideration and modification, making an earlier

challenge “premature,” Pet., pp. 4, 6, 9-10 and n.7, 14, is rejected

by the record. 9a. Moreover, the District Court’s September, 1983

Opinion, which contains the only alleged modification McDonald

cites, not only fully “reject{ed] the contentions advanced by plain-

tiffs,” 21a, but followed, and hence could not possibly have prompted,

McDonald's belated challenge to the burden of proof standard.

R.927.

The Seventh Circuit’s decision nowhere postulates that

McDonald was obligated to have initiated interlocutory

appeals, even from the Order of Reference; perforce, it

does not “unsettle” any “longstanding black letter rules,”

Pet., p. 9, by creating a general requirement that litigants

pursue interlocutory appeals.’ Instead, the Court held

that McDonald could not allow hundreds of trials to take

place under an “abundantly clear” burden of proof stand-

ard, 8a, without mounting any challenge before any court,

then suddenly insist that the established standard was

erroneous and that all entitlement cases lost by claimants

must be retried.‘ The Court’s determination finds its basis

in the same “interest of sound judicial administration,”

Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1,

8 (1980) (quoting Sears, Roebuck & Co. v. Mackey, 351

U.S. 427, 437 (1956) ), which underpins the policy against

piecemeal appeals. Firestone Tire & Rubber Co. Vv.

Risjord, 449 U.S. 368, 374 (1981); Coopers & Lybrand v.

Livesay, 437 U.S. 463, 473 (1978); Baltimore Contrac-

tors, Inc. V. Bodinger, 348 U.S. 176, 178 (1955), cited in

Pet., pp. 8-10. Cf. 9a.

Similar concern for the “proper and efficient admin-

istration of the judicial process,” Cruz v. Hauck, 515 F.2d

322, 331 (5th Cir. 1975), cert. denied, 424 U.S. 917

(1976), has prompted appellate courts to consistently re-

* McDonald’s present disparagement of interlocutory appeals and

motions for reconsideration, Pet., pp. 10-11 and n.8, contrasts with

her repeated prior resort to such avenues to obtain immediate

review of District Court rulings, see, e¢.g., 717 F.2d at 1144

(§1292(b) appeal of seniority/reinstatement decision, following

unsuccessful motion to reconsider) ; 587 F.2d 357 (§ 1292(b) appeal

from class certification decision), including review of provisions

of the Order of Reference. R.689 (motion to modify Order of Refer-

ence regarding scheduling of hearings); R.826 (motion to recon-

sider cut-off dates in Order of Reference).

*In contrast, in Franki Foundation Co. v. Alger-Rau & Associ-

ates, Inc., 513 F.2d 581 (3d Cir. 1975) and Sherrill v. Reyal Indus-

tries, Inc., 526 F.2d 507 (8th Cir. 1975), Pet., p. 11 n.8, appellants

promptly apprized the District Courts of alleged errors.

fuse to vacate district court referrals of matters to mas-

ters when no objections to the references were raised

prior to the parties proceeding before the masters. L.¥.,

id.; Rogers v. Societe Internationale, Etc., 278 F.2d 268

(D.C. Cir. 1960); Diamond Door Co. v. Lane-Stanton

Lumber Co., 505 F.2d 1199, 1205-06 (9th Cir. 1974);

Coyner v. United States, 103 F.2d 629, 635 (7th Cir.

1939) ; Hayes v. Foodmaker, Inc., 634 F.2d 802, 803 (5th

Cir. 1981); Spaulding v. University of Washington, 740

F.2d 686, 695 (9th Cir.), cert. denied, 105 S.Ct. 511

(1984) ; see also Response of Carolina, Inc. v. Leasco Re-

sponse, Inc., 587 F.2d 13807, 1324 (5th Cir. 1976) (attack

upon bifurcation order rejected when “nothing was done”

to object before trial commenced). The fact that litigants

retain the “right” to appeal from interlocutory referral

orders when final orders issue, Pet., pp. 10-11, does not

foreclose the courts from “locat[ing] ‘a just result’ in

light of the circumstances peculiar to the case.” Albe-

marle Paper Co. v. Moody, 422 U.S. 405, 425-26 (1975)

(quoting Langnes Vv. Green, 282 U.S. 531, 541 (1931)).

Cf. Cannon Vv. University of Health Sciences/The Chicago

Medical School, 710 F.2d 351, 357-63 (7th Cir. 1983) and

Avondale Shipyards, Inc. v. Vessel Thomas E. Cuffe, 434

5 Rexford v. Brunswick-Balke-Collender Co., 228 U.S. 339 (1913) ;

Trustees of Joint Welfare Fund of Int'l Union of Operating Engi-

neers V. Nolan, 549 F.2d 871 (2d Cir. 1977); Mabey v. Reagan,

537 F.2d 1036 (9th Cir. 1976); and United States v. Cline, 388 F.2d

294 (4th Cir. 1968), Pet., p. 9, involved no challenges to orders of

reference, and in Deckert v. Independence Shares Corp., 311 U.S.

282 (1940), the reference order was entirely peripheral to the

issues on appeal. Moreover, unlike Jn re Chicken Antitrust Litiga-

tion American Poultry, 669 F.2d 228 (5th Cir. 1982), Pet., p. 11,

where the particular interlocutory order had not “disposed of the

issues now before us,” 669 F.2d at 235, and no action had been taken

in the litigation between the interlocutory order and the order

then on appeal, the Order of Reference in the present case fully

disposed of the burden of proof issue and was followed by hundreds

of trials. Moreover, as in Chicken, the Court below considered its

decision “necessary for the efficient administration” of the par-

ticular case. Compare 669 F.2d at 235 with 9a.

F. Supp. 920, 934 (E.D. La. 1977) (dismissing belated

claims on laches grounds even though time to proceed not

yet extinguished by statutes of limitations).

The ruling below is fully consistent with these authori-

ties. To permit McDonald “to hang back at the trial

level,” Thompson v. Sawyer, 678 F.2d 257, 287 (D.C. Cir.

1982), and then, after hundreds of entitlement claims

have been decided, insist on a “second bite at the apple,”

Cruz, 515 F.2d at 331, because of an allegedly improper

burden of proof, “is a trap play,” Thompson, 678 F.2d

at 287, which the Court of Appeals was not required to

accept, particularly where, as here, prompt objection to

the District Court’s Order could have obviated any need

for retrials. E.g., Rogers v. Societe Internationale, 278

F.2d at 271; Ellis v. City of Chicago, 667 F.2d 606, 610

(7th Cir. 1981); Skogen v. Dow Chemical Co., 375 F.2d

692, 703 (8th Cir. 1967). The Court’s authority to take

account of such considerations was no less because the

issue involved was the appropriate burden of proof.

Browzin Vv. Catholic University of America, 527 F.2d 843,

849-50 (D.C. Cir. 1975) (declining to alter the allocation

of burden of proof, even though appellant’s position, if

timely advanced, might well have been meritorious). See

also Brenner V. World Boxing Council, 675 F.2d 445, 456

(2d Cir.) , cert. denied, 459 U.S. 835 (1982).°

The Court of Appeals’ determination to retain the bur-

den of proof of the Order of Reference and not permit

® McDonald’s suggestion that the Court below was under a differ-

ent “obligation” because this is a Title VII case, Pet., p. 12, is mis-

guided. The present appeals involved issues of eligibility for relief,

not the measure of the relief to be afforded. When the remedial

issues were before the Court, it fully recognized and applied the

principles of Franks. 717 F.2d at 1157, 1159-60.

Similarly inappropriate is McDonald’s suggestion that the Court

should have insisted upon a different burden of proof for the re-

maining entitlement hearings from that applied in the 650 cases

which have already been heard. Pet., pp. 12-13. There is no ra-

tionale for having different standards of proof govern this unitary

claimant group.

multiple retrials does not reflect any “restriction of ap-

pellate jurisdiction.” Pet., pp. 8-9. Assertion of jurisdic-

tion did not dictate the Court’s substantive treatment of

McDonald’s appeals, require that it ignore the pertinent

facts in fashioning a result it considered “just under the

circumstances,” 28 U.S.C. § 2106, or render it powerless to

protect the integrity of the judicial system from the con-

sequences of McDonald’s dilatory conduct.’ Cf. Williams

v. Rhodes, 393 U.S. 23, 34-35 (1968), Kay v. Austin, 621

F.2d 809, 813 (6th Cir. 1980), and USAchem, Ince. V.

Goldstein, 512 F.2d 163, 168-69 (2d Cir. 1975) (uphold-

ing denials of relief because of tardiness of plaintiffs,

although trial court rulings were based on other grounds).

No case cited by McDonald suggests otherwise.*

C. While McDonald does not directly ask this Court to

determine the appropriate burden of proof standard, the

petition suggests that review is needed because the stand-

ard established by the Order of Reference allegedly con-

flicts with Teamsters and its progeny. Pet., pp. 11-12

and n.9, 13. However, Teamsters, far from creating an

inflexible formulation regarding burden of proof, in-

structed that different standards would apply to different

categories of claimants based on the nature of their

claims, even where the employer’s wrongdoing had al-

ready been established. 431 U.S. at 364, 367-71.° In con-

7 AFA’s challenge to appealability under 28 U.S.C. § 1292(a) (1)

did not “acknowledge,” Pet., p. 12, that the substantive disposition

of a later appeal would differ in any respect from the ruling below.

8In Baltimore Contractors, Pet., p. 9, the Court rejected an

effort to enlarge, not restrict, appellate jurisdiction under 28 U.S.C.

§ 1292(a) (1).

9 Cases following Teamsters, such 2s McKenzie v. Sewyer, 684

F.2d 62 (D.C. Cir. 1982) and Associecion Against Discrimination

in Employment, Inc. y. City of Bridgeport, 647 F.2d 256 (2d Cir.

1981), cert. denied, 455 U.S. 988 (1982), Pet., p. 12 n.9, have also

drawn distinctions in the showing required of claimants based upon

the nature of the claims presented, as the District Court correctly

noted. 23a.

formance with these guidelines and the 1978 ruling of

the Court of Appeals, McDonald, 587 F.2d at 360 n.4, the

District Court established a burden of proof standard

“tailored to the realities of the case,” 25a, requiring claim-

ants to establish that their resignations were involuntary.

The Court of Appeals reiterated its earlier requirement

that resignees bear the burden of showing their entitle-

ment, 6a n.2, recognized the need to take account of the

“unique .. . factual setting” in this case, 8a, and did so

in its decision.”

II. The Court Below Took No Action Regarding the Dis-

trict Court’s Management of This Case Which Merits

Supreme Court Review.

The Court of Appeals in no way “interfered with,”

“undercut,” or displayed disrespect for the District Court’s

management of this case, as McDonald claims. Pet., pp.

13-15. It confirmed the District Court’s decision that en-

titlement be determined through individual hearings be-

fore special masters under standards established in the

Order of Reference.'' When appeals were filed, the Court

below did not decline jurisdiction, as in Curtiss-Wright

Corp., Pet., p. 14, but accepted the “dispatch” of the Dis-

trict Court, heard and decided the appeals. And unlike

Piper Aircraft Co. v. Reyno, 454. U.S. 235 (1981), Will

v. Calvert Fire Insurance Co., 487 U.S. 655 (1978), and

Dayton Board of Education v. Brinkman, 433 U.S. 406

(1977), Pet., p. 15, where appellate courts improperly

10 Despite the alleged erroneous standard of proof, claimants have

been found entitled in over two-thirds of the decided cases. S.R.1266-

1288.

11 McDonald’s depiction of a district court “management plan”

involving “continuing review and refinement of the Order of Refer-

ence in light of the experience in actual hearings,” Pet., p. 14, is

unfounded. The District Court never altered its burden of proof

standard. 9a.

altered orders or actions of the trial courts,’ the Seventh

Circuit did not modify the Order of Reference. It was

McDonald’s unnecessary and prejudicial delay in chal-

lenging the burden of proof standard, not the case man-

agement of the District Court, which met with the Court

of Appeals’ disapproval.

McDonald also errs in inflating certain comments of the

District Court, following its rejection of McDonald’s tardy

challenge to the burden of proof, into an endorsement of

the timing of McDonald’s attack on the Order of Refer-

ence or a “welcome[] [of] appellate review as and when

sought by petitioners.” Pet., p. 12; also pp. 7, 14. The

District Court merely (and understandably) indicated

that any further challenge to the standard of proof be

pursued on appeal. S.R.1239, Vol. 6 at 8. That the Dis-

trict Court reconfirmed its Order of Reference when re-

viewing appeals from individual entitlement determina-

tions rather than simply refusing to address the burden

of proof issue did not, as McDonald argues, Pet., p. 15

and n.12, require the Court of Appeals to ignore the tim-

ing of McDonald’s challenge."* See, e.g., Retail Store Em-

ployees Union, Local 782 v. Sav-on Groceries, 508 F.2d

500, 503 (10th Cir. 1975) (reviewing court can decline

12JIn Piper, the Court of Appeals reversed a dismissal on forum

non conveniens grounds; in Will, the appellate court ordered the

trial court to proceed immediately with an action it had deferred;

in Dayton, the Court of Appeals, without record support, ordered

a remedy far more sweeping than that ordered by the district court.

13 McDonald erroneously suggests, Pet., p. 15 n.13, that the Court

below sua sponte injected the concern for the timing of McDonald’s

attack on the burden of proof. AFA apprized the Court of Appeals,

as it had the District Court, of McDonald’s extensive delay in chal-

lenging the burden of proof standard and its potentially adverse

consequences, given her demand for rehearings of all adverse

entitlement determinations. AFA brief to Court of Appeals, pp. 6,

11-12 and nn.9 and 10, 21 n.21; R.945, p. 7 n.7; see McDonald reply

brief to Court of Appeals, pp. 5-6. The issue was also specifically

addressed at oral argument before the Court of Appeals.

to address basis for trial court ruling, yet affirm result) ;

Arlinghaus Vv. Ritenour, 622 F.2d 629, 638 (2d Cir.), cert.

denied, 449 U.S. 1013 (1980) (appellate court can raise

decisive theory sua sponte). City of Newport v. Fact

Concerts, Inc., 453 U.S. 247 (1981), and Commissioner

v. Gordon, 391 U.S. 83 (1968), Pet., p. 15 n.12, suggest

only that a reviewing court may decide an issue despite

a procedural defect at the trial court level, not that it

must ignore such defect or the factual circumstances of

the case in reaching the decision it considers appropriate.

Moreover, in neither Fact Concerts nor Gordon would a

decision on the merits necessitate retrial; here, granting

the relief sought by McDonald would have required hun-

dreds of rehearings.