Opposition Brief — Keith v. Equal Employment Opportunity Commission

% Supreme Court, US.

|

a * FILED

cael SUN 25 1990

No. 89-1835 4 | yosePe Cc apeniol. JR.

My a ateemeatads

In The —

Supreme Court of the United States

October Term 1989

a

—

KELVIN H. KEITH,

Petitioner,

VS.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

PAN AMERICAN WORLD AIRWAYS, INC.

CERTAIN CLAIMANTS, MORGAN D. KING,

Respondents.

,%

4

RESPONDENT PAN AMERICAN WORLD AIRWAYS,

INC.’S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

a

i

Ropert S. VENNING

JupitH Z. Gop

HELLER, EHRMAN, WHITE

& McAuLIFFE

333 Bush Street,

Suite 3000

San Francisco, California

94104-2878

(415) 772-6000

Attorneys for Pan American

World Airways, Inc.

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

Whether, in an enforcement action brought by the

Equal Employment Opportunity Commission (“EEOC”),

under §§ 216(c) and 217 of the Fair Labor Standards Act,

29 U.S.C. §§ 216(c) and 217, charging violations of the

Age Discrimination in Employment Act, 29 U.S.C. § 623

(“ADEA”), the EEOC may properly exercise its discretion

by refraining from including Petitioner in the monetary

provisions of a settlement, when Petitioner failed to

respond to notices of the lawsuit which he received.

il

PARTIES TO THE PROCEEDINGS BELOW

Respondent Pan American World Airways, Inc. (“Pan

Am”) concurs with Petitioner’s statement identifying the

parties to the proceedings below, except that the Airline

Pilots Association, International and the Flight Engineers

International Association, Pan Am Chapter, were also

parties to the District Court proceedings although they

did not take part in the appeal. In addition, Pan Am notes

that the objector-claimant Morgan D. King, the only other

objector who filed an appeal from the District Court’s

Order Approving Settlement and Consent Decree, has not

filed any petition for certiorari. See Statement Regarding

Filing of Morgan D. King, infra at p. 1.

ili

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............ i

PARTIES TO THE PROCEEDINGS BELOW......... ii

a 1

a 8s 1

STATEMENT REGARDING FILING OF MORGAN D.

EE re a re rere 1

RELEVANT STATUTORY PROVISIONS............. 2

STATEMENT OF THE CASE................c0c0e0. 14

DISCUSSION DUM ASTENE Suen acve Sees cee eeduecens 19

A. The Court of Appeals’ Decision Does Not Con-

flict With Any Other Appellate Decision Or

Any Decision Of This Court................. 19

B. This Case Does Not Otherwise Meet The

Guidelines Set Forth In Supreme Court Rule 10

iv

TABLE OF AUTHORITIES

Page

CASES

American Power Co. v. S.E.C., 329 U.S. 90 (1946) ..... 27

Atkins v. Parker, 472 U.S. 115 (1985)..............55. 27

Blau v. Lehman, 368 U.S. 403 (1962).................. 16

Charlier v. S.C. Johnson & Son, 556 F.2d 761 (5th Cir.

EEA Sipe Ah Wig Ms > NER SERN gs Sane go rr 21

Deane v. American Sec. Ins. Co., 559 F.2d 1036 (5th

Cir. 1977) cert. denied 434 U.S. 1066 (1978) ........ 20

Donovan v. University of Texas, 643 F.2d 1201 (Sth

| INI Ie ACRES IC aay rg rei pean ge Oe peg aes Zt. 22

Edwards v. Kaiser Aluminum & Chemical Sales, 515

ae Sey Ge ee acca dveeebanenosuen 21

EEOC v. Boeing Co., 109 F.R.D. 6 (W.D. Wash. 1985) .... 20

EEOC ». Consolidated Edison Co. of New York, 557 F.

Supp. 468 (S.D. N.Y. 1983)........... 0. seen eee, 21

EEOC v. Eastern Air Lines, 97 F.R.D. 646 (S.D. Fla.

SR eee ee en ben keeeeee a Coun Reale ee es 17, 21

Faulkner v. Gibbs, 338 U.S. 267 (1949).............5.. 17

General Telephone Co. v. EEOC, 446 U.S. 318 (1980) .... 21

Graver Tank & Mfg. v. Linde Air Products, 336 U.S.

Be Ce os bao c RAE RS ee La eee CR RR kee 17

Hoffman-LaRoche v. Sperling, __ U.S. ___, 110 S.Ct.

482, 58 U.S.L.W. 4072 (Dec. 11, 1989) ...... at, 2a ae

Marshall v. Holiday Magic, Inc., 550 F.2d 1173 (9th

Cir. 1977)

Vv

TABLE OF AUTHORITIES - Continued

Page

Martin v. Wilkes, __ U.S. __, 109 S.Ct. 2180 (1989)

Jevns ene 4ndoteKEuenaedRea eee eee a3, 24,25

McClain v. Wagner Electric Corp., 550 F.2d 1115 (8th

COE BOSD éocuescetkvicswn le ee 20

Mullane v. Central Hanover Bank & Trust Co., 339

Sa eet CREE 6 cccnustxoieaiaerie ees eee 25

Naton v. Bank of Cal., 649 F2d 691 (9th Cir. 1981).... 22

Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105

eR rrr er 25

Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct.

SFP CEMOEE + 0 050 nc0s skeen eon daanteee eee 25

Securities & Exch. Comm'n v. Randolph, 736 F.2d 525

CU UR, TI noes bass vemcs cee eee cree eee 18

Texaco Inc. v. Short, 454 U.S. 516 (1982).............. 27

Tyler v. Judges of Court of Registration, 179 U.S. 405

CURE co sar csvnts easy ce oheheeeennsee terete 27

United States v. Dickinson, 331 U.S. 745 (1947) ....... 7

United States v. Reliable Transfer Co., 421 U.S. 397

CEOTEE <i cvcccensevanauddecegesennae eee 16

United States Dept. of Labor v. Triplett, §. U.S. __,

THO DAR. TO CHE ov 0cd vvacessccsscaeseveeneee 27

Valley Forge Christian College v. Americans United

for Separation of Church & State, 454 U.S. 464

CIND co vse encndeses tuneathveradeenesd veer eee 27

Warth v. Seldin, 422 U.S. 490 (1975) ..............08. 27

vi

TABLE OF AUTHORITIES - Continued

STATUTES

8s 2 ie Gy.) reese sr.”

Fair Labor Standards Act

i Aen es, 6 < c's os sve enee 2, 14, 20, 21, 22

bo) lt |. Se rrrr ry eres tr 6, 14, 17

, Lis Ta |. err rr sre 6

/ ik Fa & - : errr re 7

Rk 8 a ferris ees” 11, 17, 20, 21

Es SE OE 6.0 e cans eeunneeesevad ove nana 13, 21

SUPREME Court RULES

SEO FO ice sv ccavececvetcesdevsneemvaneneeeneee 1,2

BND Oi vcccccccccsnvcnesexects ¢00e0eneae eee 1

REGULATIONS

- Guth eS) Sr eo 21

ar CPR. © 1627.10 .. os ccvediveccesvuvacceses seems 21

OPINIONS BELOW

Respondent Pan Am concurs with Petitioner’s statement

regarding the opinions below, and incorporates by reference

Petitioner’s Appendix, which includes such opin ‘ons.

&

_

JURISDICTIONAL GROUNDS

Petitioner invokes this Court’s certiorari jurisdiction

under 28 U.S.C. § 1254(1). Respondent Pan Am does not

dispute that the petition is timely. However, Pan Am

submits that pursuant to Supreme Court Rule 10, there is

no reason why the Court should exercise its discretion to

grant certiorari in this case.

La

vv

STATEMENT REGARDING FILING OF

MORGAN D. KING

Morgan D. King, a former pilot, appealed the District

Court’s Order Approving the Consent Decree, but there-

after explicitly agreed to settle this matter by refraining

from seeking certiorari in exchange for Pan Am’s agree-

ment not to seek to recover its costs of appeal from Mr.

King. Mr. King has now filed a “Response in Support” of

Mr. Keith’s petition for writ of certiorari. We urge the

Court to disregard it because such a filing is wholly

unauthorized. It is, in reality, either a disguished cer-

tiorari petition that is untimely, or an amicus brief for

which Mr. King has neither sought nor obtained the

parties’ consent or leave of Court pursuant to Supreme

Court Rule 37.

+

RELEVANT STATUTORY PROVISIONS

29 U.S.C. § 216:

(a) Any person who willfully violates any of the

provisions of section 215 of this title shall upon convic-

tion thereof be subject to a fine of not more than $10,000,

or to imprisonment for not more than six months, or

both. No person shall be imprisoned under this subsec-

tion except for an offense committed after the conviction

of such person for a prior offense under this subsection.

(b) Any employer who violates the provisions of

section 206 or section 207 of this title shall be liable to the

employee or employees affected in the amount of their

unpaid minimum wages, or their unpaid overtime com-

pensation, as the case may be, and in an additional equal

amount as liquidated damages. Any employer who vio-

lates the provisions of section 215(a)(3) of this title shall

be liable for such legal or equitable relief as may be

appropriate to effectuate the purposes of section 215(a)(3)

of this title, including without limitation employment,

reinstatement, promotion, and the payment of wages lost

and an additional equal amount as liquidated damages.

An action to recover the liability prescribed in either of

the preceding sentences may be maintained against any

employer (including a public agency) in any Federal or |

State court of competent jurisdiction by any one or more |

employees similarly situated. No employee shall be a

party plaintiff to any such action unless he gives his |

consent in writing to become such a party and such

consent is filed in the court in which such action is |

brought. The court in such action shall, in addition to any

judgment awarded to the plaintiff or plaintiffs, allow a

a eo

3

reasonable attorney’s fee to be paid by the defendant, and

costs of the action. The right provided by this subsection

to bring an action by or on behalf of any employee, and

the right of any employee to become a party plaintiff to

any such action, shall terminate upon the filing of a

complaint by the Secretary of Labor in an action under

section 217 of this title in which (1) restraint is sought of

any further delay in the payment of unpaid minimum

wages, or the amount of unpaid overtime compensation,

as the case may be, owing to such employee under sec-

tion 206 or section 207 of this title by an employer liable

therefor under the provisions of this subsection or (2)

legal or equitable relief is sought as a result of alleged

violations of section 215(a)(3) of this title.

(c) The Secretary is authorized to supervise the pay-

ment of the unpaid minimum wages or the unpaid over-

time compensation owing to any employee or employees

under section 206 or section 207 of this title, and the

agreement of any employee to accept such payment shall

upon payment in full constitute a waiver by such

employee of any right he may have under subsection (b)

of this section to such unpaid minimum wages or unpaid

Overtime compensation and an additional equal amount

as liquidated damages. The Secretary may bring an action

in any court of competent jurisdiction to recover the

amount of unpaid minimum wages or overtime compen-

sation and an equal amount as liquidated damages. The

right provided by subsection (b) of this section to bring

an action by or on behalf of any employee to recover the

liability specified in the first sentence of such subsection

and of any employee to become a party plaintiff to any

such action shall terminate upon the filing of a complaint

by the Secretary in an action under this subsection in

which a recovery is sought of unpaid minimum wages or

unpaid overtime compensation under sections 206 and

207 of this title or liquidated or other damages provided

by this subsection owing to such employee by an

employer liable under the provisions of subsection (b) of

this section, unless such action is dismissed without prej-

udice on motion of the Secretary. Any sums thus recov-

ered by the Secretary of Labor on behalf of an employee

pursuant to this subsection shall be held in a special

deposit account and shall be paid, on order of the Secre-

tary of Labor, directly to the employee or employees

affected. Any such sums not paid to an employee because

of inability to do so within a period of three years shall be

covered into the Treasury of the United States as miscella-

neous receipts. In determining when an action is com-

menced by the Secretary of Labor under this subsection

for the purposes of the statutes of limitations provided in

section 255(a) of this title, it shall be considered to be

commenced in the case of any individual claimant on the

date when the complaint is filed if he is specifically

named as a party plaintiff in the complaint, or if his name

did not so appear, on the subsequent date on which his

name is added as a party plaintiff in such action.

(d) In any action or proceeding commenced prior

to, on, or after August 8, 1956, no employer shall be

subject to any liability or punishment under this Act or

the Portal-to-Portal Act of 1947 on account of his failure

to comply with any provision or provisions of such Acts

(1) with respect to work heretofore or hereafter per-

formed in a workplace to which the exemption in section

213(f) of this title is applicable, (2) with respect to work

performed in Guam, the Canal Zone or Wake Island

before the effective date of this amendment of subsection

(d), or (3) with respect to work performed in a possession

named in section 206(a)(3) of this title at any time prior to

the establishment by the Secretary, as provided therein, of

a minimum wage rate applicable to such work.

(e) Any person who violates the provisions of sec-

tion 212 of this title, relating to child labor, or any regula-

tion issued under that section, shall be subject to a civil

penalty of not to exceed $1,000 for each such violation. In

determining the amount of such penalty, the appropriate-

‘ness of such penalty to the size of the business of the

person charged and the gravity of the violation shall be

considered. The amount of such penalty, when finally

determined, may be -

(1) deducted from any sums owing by the

United States to the person charged;

(2) recovered in a civil action brought by the

Secretary in any court of competent jurisdiction,

in which litigation the Secretary shal! be repre-

sented by the Solicitor of Labor; or

(3) ordered by the court, in an action brought

for a violation of section 215(a)(4) of this title, to

be paid to the Secretary.

Any administrative determination by the Secretary of

the amount of such penalty shall be final, unless within

fifteen days after receipt of notice thereof by certified

mail the person charged with the violation takes excep-

tion to the determination that the violations for which the

penalty is imposed occurred, in which event final deter-

mination of the penalty shall be made in an administra-

tive proceeding after opportunity for hearing in~

accordance with section 554 of Title 5, and regulations to

be promulgated by the Secretary. Sums collected as penal-

ties pursuant to this section shall be applied toward

reimbursement of the costs of determining the violations

and assessing and collecting such penalties, in accordance

with the provisions of section 9a of this title.

29 U.S.C. § 217:

The District Courts, together with the United States

District Court for the District of the Canal Zone, the

District Court of the Virgin Islands, and the District Court

of Guam shall have jurisdiction, for cause shown, to

restrain violations of section 215 of this title, including in

the case of violations of section 215(1)(2) of this title the

restraint of any withholding of payment of minimum

wages or overtime compensation found by the court to be

due to employees under this chapter (except sums which

employees are barred from recovering, at the time of the

commencement of the action to restrain the violations, by

virtue of the provisions of section 255 of this title).

29 U.S.C. § 255:

Any action commenced on or after May 14, 1947, to

enforce any cause of action for unpaid minimum wages,

unpaid overtime compensation, or liquidated damages,

under the Fair Labor Standards Act of 1938, as amended

[29 U.S.C.A. § 201 et seq.], the Walsh-Healey Act [41

U.S.C.A. § 35 et seq.], or the Bacon-Davis Act [40 U.S.C.A.

§ 276a et seq.] -

(a) if the cause of action accrues on or after

May 14, 1947 - may be commenced within two

years after the cause of action accrued, and

every such action shall be forever barred unless

commenced within two years after the cause of

action accrued, except that a cause of action

arising out of a willful violation may be com-

menced within three years after the cause of

action accrued;

(b) if the cause of action accrued prior to May

14, 1947 — may be commenced within whichever

of the following periods is the shorter: (1) two

years after the cause of action accrued, or (2) the

period described by the applicable State statute

of limitations; and, except as provided in para-

graph (c) of this section, every such action shall

be forever barred unless commenced within the

shorter of such two periods;

(c) if the cause of action accrued prior to May 14,

1947, the action shall not be barred by paragraph

(b) of this section if it is commenced within one

hundred and twenty days after May 14, 1947

unless at the time commenced it is barred by an

applicable State statute of limitations;

(d) with respect to any cause of action brought

under section 216(b) of this title against a State

of a political subdivision of a State in a district

court of the United States on or before April 18,

1973, the running of the statutory periods of

limitation shall be deemed suspended during

the period beginning with the commencement of

any such action and ending one hundred and

eighty days after the effective date of the Fair

Labor Standards Amendments of 1974, except

that such suspension shall not be applicable if in

- such action judgment has been entered for the

defendant on the grounds other than State

immunity from Federal jurisdiction.

29 U.S.C. § 623:

(a) It shall be unlawful for an employer -

(1) to fail or refuse to hire or to discharge

any individual or otherwise discriminate against

any individual with respect to his compensa-

tion, terms, conditions, or privileges of employ-

ment, because of such individual’s age;

(2) to limit, segregate, or classify his

employees in any way which would deprive or

tend to deprive any individual of employment

opportunities or otherwise adversely affect his

status as an employee, because of such individ-

ual’s age; or

(3) to reduce the wage rate of any

employee in order to comply with this chapter.

(b)

It shall be unlawful for an employment agency

to fail or refuse to refer for employment, or otherwise to

discriminate against, any individual because of such indi-

vidual’s age, or to classify or refer for employment any

individual on the basis of such individual's age.

(c)

It shall be unlawful for a labor organization -

(1) to exclude or to expel from its member-

ship, or otherwise to discriminate against, any

individual because of his age;

(2) to limit, segregate, or classify its mem-

bership, or to classify or fail or refuse to refer

for employment any individual, in any way

which would deprive or tend to deprive any

individual of employment opportunities, or

would limit such employment opportunities or

otherwise adversely affect his status as an

employee or as an applicant for employment,

because of such individual’s age;

(3) to cause or attempt to cause an

employer to discriminate against an individual

in violation of this section.

(d) It shall be unlawful for an employer to discrimi-

nate against any of his employees or applicants for

employment, for an employment agency to discriminate

against any individual, or for a labor organization to

discriminate against any member thereof or applicant for

membership, because such individual, member or appli-

cant for membership has opposed any practice made

unlawful by this section, or because such individual,

member or applicant for membership has made a charge,

testified, assisted, or participated in any manner in an

investigation, proceeding, or litigation under this chapter.

(e) It shall be unlawful for an employer, labor orga-

nization, or employment agency to print or publish, or

cause to be printed or published, any notice or advertise-

ment relating to employment by such an employer or

membership in or any classification or referral for

employment by such a labor organization, or relating to

any classification or referral for employment by such an

employment agency, indicating any preference, limita-

tion, specification, or discrimination, based on age.

(f) It shall not be unlawful for an employer, employ-

ment agency, or labor organization —

(1) to take any action otherwise prohibited

under subsections (a), (b), (c), or (e) of this

section where age is a bona fide occupational

qualification reasonably necessary to the normal

operation of the particular business, or where

the differentiation is based on reasonable factors

other than age, or where such practices involve

an employee in a workplace in a foreign coun-

try, and compliance with such subsections

would cause such employer, or a corporation

controlled by such employer to violate the laws

of the country in which such workplace is

located; ,

10

(2) to observe the terms of a bona fide

seniority system or any bona fide employee ben-

efit plan such as a retirement, pension, or insur-

ance plan, which is not a subterfuge to evade

the purposes of this chapter, except that no such

employee benefit plan shall excuse the failure to

hire any individual, and no such seniority sys-

tem or employee benefit plan shall rejuire or

permit the involuntary retirement of any indi-

vidual specified by section 631(a) of this title

because of the age of such individual; or

(3) to discharge or otherwise discipline an

individual for good cause.

(g)

(1) For purposes of this section, any employer must

provide that any employee aged 65 or older, and any

employee’s spouse aged 65 or older, shall be entitled to

coverage under any group health plan offered to such

employees under the same conditions as any employee

and the spouse of such employee, under age 65.

(2) For purposes of paragraph (1), the term “group

health plan” has the meaning given to such term in

section 162(i)(2) of Title 26.

(g)

(1) If an employer controls a corporation

whose place of incorporation is a foreign coun-

try, any practice by such corporation prohibited

under this section shall be presumed to be such

practice by such employer.

(2) The prohibitions of this section shall

not apply where the employer is a foreign per-

son not controlled by an American employer.

11

(3) For the purpose of this subsection the

determination of whether an employer controls

a corporation shall be based upon the -

(A) interrelation of operations,

(B) common management,

(C) centralized control of labor rela-

tions, and

(D) common ownership or financial

control, of the employer and the

corporation.

29 U.S.C. § 626:

(a) The Equal Employment Opportunity Commis-

sion shall have the power to make investigations and

require the keeping of records necessary or appropriate

for the administration of this chapter in accordance with

the powers and procedures provided in sections 209 and

211 of this title.

(b) The provisions of this chapter shall be enforced

in accordance with the powers, remedies, and procedures

provided in sections 211(b), 216 (except for subsection (a)

thereof), and 217 of this title, and subsection (c) of this

section. Any act prohibited under section 623 of this title

shall be deemed to be a prohibited act under section 215

of this title. Amounts owing to a person as a result of a

violation of this chapter shall be deemed to be unpaid

minimum wages or unpaid overtime compensation for

purposes of sections 216 and 217 of this title: Provided,

That liquidated damages shall be payable only in cases of

willful violations of this chapter. In any action brought to

enforce jurisdiction to grant such this chapter the court

shall have jury legal or equitable relief as may be appro-

priate to effectuate the purposes of this chapter, including

12

without limitation judgments compelling employment,

reinstatement or promotion, or enforcing the liability for

amounts deemed to be unpaid minimum wages or

unpaid overtime compensation under this section. Before

instituting any action under this section, the Equal

Employment Opportunity Commission shall attempt to

eliminate the discriminatory practice or practices alleged,

and to effect voluntary compliance with the requirements

of this chapter through informal methods of conciliation,

conference, and persuasion.

(c)

(1) Any person aggrieved may bring a civil

action in any court of competent jurisdiction for

such legal or equitable relief as will effectuate

the purposes of this chapter: Provided, That the

right of any person to bring such action shall

terminate upon the commencement of an action

by the Equal Employment Opportunity Com-

mission to enforce the right of such employee

under this chapter.

(2) an action brought under paragraph (1), a

person shall be entitled to a trial by jury of any

issue of fact in any such action for recovery of

amounts owing as a result of a violation of this

chapter, regardless of whether equitable relief is

sought by any party in such action.

(d) No civil action may be commenced by an indi-

vidual under this section until 60 days after a charge

alleging unlawful discrimination has been filed with the

Equal Employment Opportunity Commission. Such a

charge shall be filed -

(1) within 180 days after the alleged

unlawful practice occurred; or

13

(2) ina case to which section 633(b) of this

title applies, within 300 days after the alleged

unlawful practice occurred, or within 30 days

after receipt by the individual of notice of termi-

nation of proceedings under State law, which-

ever is earlier.

Upon receiving such a charge, the Commission shall

promptly notify all persons named in such charge as

prospective defendants in the action and shall promptly

seek to eliminate any alleged unlawful practice by informal

methods of conciliation, conference, and persuasion.

(e)

(1) Sections 255 and 259 of this title shall

apply to actions under this chapter.

(2) For the period during which the Equal

Employment Opportunity Commission is

attempting to effect voluntary compliance with

requirements of this chapter through informal

methods of conciliation, conference, and persua-

sion pursuant to subsection (b) of this section,

the statute of limitations as provided in section

255 of this title shall be tolled, but in no event

for a period in excess of one year.

29 U.S.C. § 627:

Every employer, employment agency, and labor orga-

nization shall post and keep posted in conspicuous places

upon its premises a notice to be prepared or approved by

the Equal Employment Opportunity Commission setting

forth information as the Commission deems appropriate

to effectuate the purposes of this chapter.

7%

a

14

STATEMENT OF THE CASE

Nearly nine years ago, in 1981, the EEOC filed this

action against Pan Am, alleging that Pan Am’s policy

toward pilots who wished to continue flying as flight

engineers after they reached age 60 (when, under a Fed-

eral Aviation Administration rule, they could no longer

fly as pilots) discriminated on the basis of age, in viola-

tion of the Age Discrimination in Employment Act

(“ADEA”). This is not a class action under Federal Rule of

Civil Procedure 23. It is an EEOC “enforcement action”

under Section 16(c) of the ADEA. See 29 U.S.C. §§ 216(c),

217.

Petitioner, a retired Pan Am pilot, showed no interest

in any age discrimination claim he might have against

Pan Am - despite having received actual notice of this

case and an invitation to participate in it from the EEOC -

until after this case was resolved by a consent decree and

a substantial monetary settlement. This resolution was

accomplished after many years of vigorous litigation,

widely publicized among Pan Am pilots, and indeed after

a two-month-long jury trial was nearly complete.

Petitioner urges that EEOC did not give adequate

notice and that the lower courts deprived him of due

process of law by approving the settlement. He does so

despite the factual findings of both lower courts that he

himself did have notice of the action (including notice

that his failure to respond might result in his exclusion

from the EEOC’s recovery efforts) (Petitioner’s Appendix

at 55) — and despite clear authorities establishing that

claimants like Petitioner have no individual ADEA claims

that survive the filing of an EEOC action, declaring that

_ the EEOC has the primary role in enforcing the ADEA,

15

and holding that Rule 23 is inapplicable to this type of

case.

We adopt the factual synopsis and procedural history

set forth in the Court of Appeals’ opinion below (see

Petitioner’s Appendix at pp. 11-30; see also District

Court’s opinion, Petitioner’s Appendix at 69-74) and do

not repeat that discussion in detail here. Two points must

be emphasized, however. First, although Petitioner

focuses on the fact that some retired pilots were not sent

either of the two written notices about this case which are

reprinted in the Court of Appeals’ opinion,’ Petitioner

himself is not one of those pilots.2 As both of the courts

below found, Petitioner was sent both notices, properly

addressed, and his claims of ignorance about this case are

otherwise “not credible” in light of the substantial public-

ity that has attended this litigation and the issue

involved. (Petitioner’s Appendix at 55-56, 88, 97, 121-27.)

Second, even as to other objectors, the District Court also

found that “the only Objector Pilots who can credibly

claim they were not sent notice —- Metcalf and King -

1 See EEOC notice letter, Petitioner’s Appendix at 13-14;

Captain Ray Egan’s memorandum, published in Pan Am

retired pilots’ newsletter, Petitioner’s Appendix at 17-20.

2 Mr. King, who has filed a belated “response” to the

petition, was apparently not sent the EEOC’s notice letter, but

he was sent the Egan memorandum (although his address

contained a typographical error in the zip code). (Petitioner’s

Appendix at 93-94). The District Court found Mr. King’s claim

of ignorance about this case to be “not credible.” Id. at 97. In

any event, Mr. King’s claims should be disregarded because he

has not filed any timely petition for certiorari, nor does he

have either the parties’ consent nor this Court’s leave to

appear as amicus.

16

knew of the lawsuit by other means.” (Petitioner’s

Appendix at 121-22.) (Neither of these objectors has

sought review here.) ~

Although Petitioner once denied receiving either the

EEOC’s letter or the newsletter, he does not do so now.

Instead he challenges the EEOC’s notice procedures as to

other former pilots, accuses Pan Am and the EEOC of

improper motives for not using other procedures, and

offers various purported statistics about those other for-

mer pilots who were not sent the notices involved — all

the while failing forthrightly to inform the Court that he

himself is not in that category at all. Petitioner’s argu-

ments about other former pilots who allegedly were not

sent any notice of the case are simply irrelevant. No such

former pilots are now challenging the settlement. Given

the now undisputed fact that Petitioner did have notice of

this action,4 the only question Petitioner can properly

3 When the settlement was presented to the District Court

for its approval, an extensive fairness hearing was conducted

at which eight objectors, including Petitioner, challenged the

settlement on notice-related bases, contending that they had no

notice of the action until the settlement was publicized. Some

of those were not addressees of the EEOC’s notice letter. In

other cases, their addresses had contained typographical

errors. Some were not sent the newsletter. As stated above,

however, Petitioner was sent both notices, correctly addressed.

Both lower courts found that all of these objectors had actual

notice.

4 Petitioner apparently does not seek review of the lower

courts’ findings that he had actual knowledge of this lawsuit.

Even if he were to do so, the “two court rule” would make

such findings virtually irrebuttable. United States v. Reliable

Transfer Co., 421 U.S. 397, 401 n. 2 (1975); Blau v. Lehman, 368

(Continued on following page)

17

present is whether Petitioner was nevertheless entitled to

a full-fledged Rule 23-type notice of this case, and the

authorities are clear that he was not.

The Court of Appeals found that the consent decree

does not prejudice any rights Petitioner might have under

the ADEA, because his right to bring a private ADEA

action terminated upon the EEOC’s commencement of

this enforcement action.> (Petitioner’s Appendix

(Continued from previous page)

U.S. 403, 408-409 (1962); Faulkner v. Gibbs, 338 U.S. 267, 268

(1949); Graver Tank & Mfg. v. Linde Air Products, 336 U.S. 271,

275 (1949) (“A court of law, such as this Court is, rather than a

court for correction of errors in fact finding, cannot undertake

to review concurrent findings of fact by two courts below in

the absence of a very obvious and exceptional showing of

error’); United States v. Dickinson, 331 U.S. 745, 751 (1947).

> Under Section 7(c)(1) of the ADEA, the filing of this suit

terminated former pilots’, including Petitioner’s, rights to

bring ADEA actions against Pan Am based on the facts alleged

in this suit. See also Section 16(b) of the Fair Labor Standards

Act, 29 U.S.C. § 217, incorporated by reference into the ADEA

in Section 7 thereof, 29 U.S.C. § 626(b). Pan Am does not intend

to suggest that the EEOC, having terminated individual claims

by filing suit, could have settled this case in an arbitrary or

capricious fashion - favoring or disfavoring particular

employees based on race or hair color, for example - without

implicating due process concerns. Had it done so, this Court's

intervention might well be necessary. This is not such a case,

however. Here the EEOC made an eminently reasonable deci-

sion, well within its discretion, to exclude from the settlement

persons who had not come forward during many years of

active and well-publicized litigation, who had not responded

to its notice letter, and who had been content to let their

personal claims lapse under the applicable statute of limita-

tions and claim filing requirements. See EEOC v. Eastern Air

(Continued on following page)

18

at 47.)6 The Court of Appeals specifically held that due

process did not require the government specifically to

notify Petitioner or other former pilots of that self-execut-

ing statutory bar to subsequent individual litigation.

(Petitioner’s Appendix at 37-43; 59-60.) Moreover, both

courts found that even if claimants like Petitioner

retained any constitutionally protectible interest, due pro-

cess was provided to Petitioner because he had actual

knowledge of the pendency of this action and in fact

received the EEOC’s notice. (See discussion supra.) As we

discuss below, the appellate court’s decision is not in

conflict with any other decisions of the appellate courts,

or of this Court, nor is there any other reason why this

Court should grant certiorari.

(Continued from previous page)

Lines, 97 F.R.D. 646, 650-51 (S.D. Fla. 1983) (EEOC’s decisions

as to how to conduct the case and how to settle it are “invested

with a heavy dose of discretion”). As the District Court stated,

“[t]he fact that a government agency took part in the settle-

ment negotiations is an important factor in weighing the over-

all fairness of the settlement.” (Petitioner’s Appendix at 134,

citing Marshall v. Holiday Magic, Inc., 550 F.2d 1173, 1178 (9th

Cir. 1977); Securities & Exch. Comm'n v. Randolph, 736 F.2d 525,

529 (9th Cir. 1984) (“the courts should pay deference to the

judgment of the government agency which has negotiated and

submitted the proposed judgment”).)

6 The Court of Appeals expressly noted that any state law

claims that Petitioner might still] have survived the filing of

_this action and the Consent Decree. (Petitioner’s Appendix at

51, n. 8.)

19

DISCUSSION

A. The Court of Appeals’ Decision Does Not Conflict

With Any Other Appellate Decision Or Any Deci-

sion Of This Court.

We adopt the lower courts’ detailed discussions of

the ADEA’s statutory scheme (see Petitioner’s Appendix

at 34-43, 56-57, 104-117). As both of the lower courts

discussed in detail, the age discrimination statute

“plainly gives the EEOC the dominant role in enforcing

the ADEA.” (Petitioner’s Appendix at 37). Thus, the

EEOC has

broad discretion in conducting enforcement

actions. It can extinguish private individuals’

causes of action, shape the nature of the relief

sought and administer the distribution of any

settlement or award. It cannot be compelled to

sue on behalf of an individual, nor must it per-

mit individuals to intervene. Its representation

is presumptively adequate. As one court has

stated, “[b]ecause the ADEA ‘creates a remedy

for an injury not compensable at common law’,

Jaeger v. American Cyanamid Co., 442 F. Supp.

1270, 1272 (E.D. Wis. 1978), the procedural con-

ditions that are inextricably interwoven in, and

limit the availability of, the rights granted

therein are generally permissible, and must be

tolerated as ‘the bitter with the sweet’, Arnett v.

Kennedy, 416 U.S. 134, 153-54 (1974).” EEOC v.

Consolidated Edison Co. of New York, Inc., 557 F.

Supp. 468, 474 (S.D.N.Y. 1983). In this regard,

“[n]o distinction need be drawn between the

EEOC’s claim stating and claim settling func-

tions, both of which are invested with a large

dose of discretion.” EEOC v. Eastern Air Lines,

Inc., 97 F.R.D. 646, 950-51 (S.D. Fla. 1983).

Petitioner’s Appendix, pp. 113-14.

20

The conclusion drawn by both of the lower courts, that

the EEOC acted well within its discretion when it decided to

settle this action without including any monetary provisions

for persons like Petitioner - whose personal claims were

terminated, and who had shown no interest in such claims -

was inescapable. It flowed from the following well-settled

principles concerning ADEA actions:

(1) Although private ADEA actions are permitted

unless and until the EEOC files suit, the right to bring such

an action terminates upon the commencement of an action

by the EEOC. 29 U.S.C. § 626(c)(1); 29 U.S.C. 216(b).

(2) The statutory structure plainly contemplates

chat the EEOC shall have the “dominant role in enforcing

the ADEA.” (Petitioner’s Appendix at 37.) ADEA suits

brought by the EEOC have “priority over private suits.”

(Id. at 40.) Private lawsuits are “secondary in the statu-

tory scheme.” (Id. See also Deane v. American Sec. Ins. Co.,

559 F.2d 1036, 1038 (5th Cir. 1977), cert denied 434 U.S.

1066 (1978).) Thus, for example, aggrieved employees

have no right to intervene in EEOC enforcement actions

like this one. (See EEOC v. Boeing Co., 109 F.R.D. 6, 10

(W.D. Wash. 1985); see also the District Court’s discussion

at pp. 112-113.)7

7 In his “response” to the petition, Mr. King quotes

McClain v. Wagner Electric Corp., 550 F.2d 1115 (8th Cir. 1977) as

supporting the proposition that the EEOC may not cut off the

claims of individual employees without their consent. That

case, however, was not brought under the ADEA but under the

Civil Rights Act of 1964, which does not provide for the

termination of individual claims upon the filing of EEOC

actions, and_which provides for intervention in EEOC suits by

aggrieved employees. Id. at 1119. Moreover, even in such a case

(Continued on following page)

21

(3) The EEOC’s decisions regarding its conduct of

an ADEA enforcement action are “invested with a heavy

dose of discretion.” EEOC v. Eastern Air Lines, 97 F.R.D. at

650-51. The EEOC’s representation is “statutorily, and

thus conclusively, determined to be [adequate].” EEOC v.

Consolidated Edison Co. of New York, 557 F.Supp. 468, 472

(S.D. N.Y. 1983).

(4) Although courts may in their discretion permit

or require notice to putative class members in private

ADEA actions brought pursuant to Section 16(b) (Hoff-

man-LaRoche v. Sperling, __ U.S. __, 110 S.Ct. 482 (1989)),

nothing in the ADEA requires the EEOC to provide notice

to potential claimants of an enforcement action brought

under § 16(c). See 29 U.S.C. §§ 216(c), 626(b); 29 C.FR.

§ 1626.15.8 See also Donovan v. University of Texas, 643 F.2d

1201, 1208 (5th Cir. 1981).

(5) An EEOC enforcement action such as this one is

not a class action, and Rule 23 is inapplicable. General

(Continued from previous page)

the court suggested that intervention should be denied when, as

here, the litigation is far advanced, the latecomer advances no

reason for his delay, the would-be intervenor had “knowledge of

the pendency of the action in question,” and the existing parties

will be prejudiced by the intervention. Id. at 1120.

8 Rather than requiring the EEOC to notify employees of

pending actions, Congress required employers to post general

notices in the work place informing employees of their rights

under the ADEA. See ADEA Section 8, 19 U.S.C. § 627; 29

C.F.R. § 1627.10. This notice is designed “so that one may

reasonably conclude that the employees either knew or

. Should have known of their statutory rights.” Charlier v.

S.C.Johnson & Son, 556 F.2d 761, 764 (5th Cir. 1977); see also

Edwards v. Kaiser Aluminum & Chemical Sales, 515 F.2d 1195,

1197 (Sth Cir. 1975).

22

Telephone Co. v. EEOC, 446 U.S. 318, 326 (1980); Naton v.

Bank of Cal., 649 F.2d 691, 693 (9th Cir. 1981); Donovan v.

University of Texas, 643 F.2d at 1208.

These clearly established principles mandated the

lower courts’ decisions. Petitioner ignores the fact that

this action was brought pursuant to the ADEA’s spe-

cialized statutory scheme when he suggests that the

Ninth Circuit’s opinion conflicts with various decisions of

this Court. Because the cases upon which he relies are not

ADEA enforcement actions, they are inapplicable. -

For example, Petitioner relies heavily upon Hoffman-

LaRoche v. Sperling, U.S. __, 110 S.Ct. 482 (1989), in

which this Court ruled that a district court may, in its

discretion, permit, require, or supervise notice to potential

claimants in a private action brought by individual

employees pursuant to 29 U.S.C. § 216(b). The Sperling

decision is not germane to the question submitted for

review here. Sperling was filed and litigated as a private

ADEA class action under 29 U.S.C. § 216(b). 110 S.Ct. at

486. The Sperling court decided “the narrow question”

whether a district court may authorize and facilitate

notice to potential class members in a private ADEA

action, and held that district courts have the discretion to

do so. The Court explicitly did not consider or decide

“the details of [the] exercise [of discretion].” Id. Sperling

does not in any way address any questions concerning

ADEA enforcement actions brought by the EEOC. Nor

does it require any notice, even within the context of a

private ADEA action, and certainly not in an EEOC

enforcement action.

23

Petitioner also posits that the appellate decision

below conflicts with the Court’s decision in Martin v.

Wilkes, U.S. __, 109 S.Ct. 2180 (1989). That case is also

inapplicable to this one. In Martin, white firefighters chal-

lenged certain employment decisions made pursuant to a

consent decree in a prior Title VII suit brought against the

employer by biack firefighters. The white firefighters

claimed in essence that the consent decree purported to

permit “reverse discrimination” against them. The ques-

tion was whether, as non-parties to the previous litiga-

tion, the white firefighters could thus collaterally attack

the previous settlement. This Court held that they could,

relying on ordinary principles of civil procedure under

which judgments generally are not binding on absent

parties. Id. at 2184.

Like Sperling, Martin is inapposite. In Martin, the

underlying suit had been a private lawsuit under Title

VII, not an EEOC enforcement action under the ADEA,

the filing of which itself terminated private rights. By its

terms, the statute creating the federal right to be free of

age discrimination also limits that right, making the

EEOC the sole cognizable plaintiff - and presumptively

adequate representative of the public interest? — once it

9 It is important to note that the plaintiffs in Martin chal-

lenged arguably discriminatory employment decisions which

were made pursuant to the previous consent decree. If they

had not been permitted to do, the result might be that an

employer could gain a license to discriminate against certain

groups by settling cases brought by other groups. Here, in

contrast, Petitioner does not claim that the settlement imper-

missibly allows Pan Am to discriminate in employment, which

(Continued on following page)

24

files an action. As the Ninth Circuit observed in this case,

it was not the consent decree that terminated Petitioner’s

rights, it was the filing of the complaint. (Petitioner’s

Appendix at 50.) Since the previous case in Martin had

been a private Title VII suit, this circumstance was plainly

not present in that case. This is not a case to which the

ordinary rules of civil procedure discussed in Martin

apply.?°

Indeed this case fits within the exception noted in the

Martin decision itself. The Court stated that “where a

special remedial scheme exists expressly foreclosing suc-

cessive litigation by nonlitigants .. . legal proceedings

may terminate preexisting rights if the scheme is consis-

tent with due process.” 109 S.Ct. at 2184, n. 2. Here,

precisely such a “special remedial scheme” exists. As to

Petitioner (at the very minimum), it is fully consistent

(Continued from previous page)

it plainly does not. Petitioner presumably supports the injunc-

tive provisions of the decree, which prohibit the allegedly

discriminatory practices and include various remedial provi-

sions, but seeks to undo the settlement, including its injunctive

provisions, because he does not share in its financial proceeds.

The policy concerns implicated in Martin are thus the reverse

of those in this case.

10 Moreover, in Martin the plaintiffs brought timely dis-

crimination claims, rather than allowing their own claims to

lapse under the applicable statute of limitations and then

attacking a settlement, as Petitioner has done here. Even if the

ADEA did not explicitly provide that private rights terminate

when the EEOC files suit, the settlement in this case would not

extinguish any right of Petitioner’s that would otherwise exist,

'an important difference between this case and Martin.

25

with due process because he had actual notice. (Peti-

tioner’s Appendix at 55-56.) The broad holding of Martin,

that absent special circumstances non-parties may not be

bound by consent decrees, is thus inapplicable to this

case. As the Court of Appeals stated, the consent decree

“does not prejudice the objectors’ rights because they had

no rights left to prejudice.” (Petitioner’s Appendix at

50.)11

B. This Case Does Not Otherwise Meet The Guide-

lines Set Forth In Supreme Court Rule 10.

Petitioner also suggests that the statutory framework

which provides the EEOC with the primary authority to

enforce the ADEA, and terminates individual rights upon

11 The Court of Appeals also affirmed the District Court’s

finding that Petitioner (and Mr. King as well) were “familiar

with the substance of [the EEOC’s] notice” (Petitioner’s

Appendix at 55) and ruled that “[a]ctual knowledge of the

pendency of an action removes any due process concerns about

notice of the litigation” that might otherwise arise under Mul-

lane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) and

similar cases. Schroeder v. City of New York, 371 U.S. 208, 83 S.Ct.

279 (1962), relied on by Mr. King, does not change this result.

In that case, which involved published notices of condemna-

tion proceedings and a landowner’s right to contest such pro-

ceedings, there was no question about the landowner’s

ignorance of such proceedings. (Nor, of course, did the case

involve the ADEA in any way.) Mr. King also cites Phillips

Petroleum Co. v. Shutts, 472 U.S. 797, 812, 105 S.Ct. 2965 (1985),

but that case, a Rule 23 class action, does not support the

proposition for which he cites it. It holds that there is no due

process requirement that absent class members must affirma-

tively “opt in” in order to be bound. And it says nothing about

the rights of absent class members who, whether or not they

were sent notice, in fact had knowledge of the suit.

26

the filing of an EEOC suit, is unconstitutional under the due

process clause unless the ADEA is interpreted so as to

require the EEOC to provide Rule 23-type notice. This is a

question that should not be resolved pursuant to this peti-

tion, because — although Petitioner attempts to obscure the

facts relating specifically to himself — he received at least two

detailed written notices of this case.!?

Because Petitioner is not one of the former pilots who

failed to receive notice of this case, as discussed above, the

only due process question he may properly present to this

Court is a very narrow one: whether, in an enforcement

action such as this one, the EEOC must not just notify a

potential claimant about the suit it has filed, and that the

claimant may not share in any recovery absent a response to

the notice, but must also explicitly and in detail inform the

claimant that his individual rights have been terminated.

Petitioner has no standing to present any other question

about the means of notice employed in this case.!%

12 Petitioner seems to suggest that even if this case does

not conflict with any other court decisions, the lower courts

“so far departed from the accepted and usual course of judicial

procedure” as to call for an exercise of this Court’s certiorari

jurisdiction under Supreme Court Rule 10(1)(a). Alternatively,

Petitioner seems to be suggesting that the lower court decided

“an important question of federal law which has not been, but

should be, settled by this Court,” within the meaning of Rule

10(1)(c). Because Petitioner had actual notice, however, his

petition and this case are not proper vehicles for this Court to

consider the question whether the settlement of this case,

absent actual notice to all potentially interested parties, vio-

lates fundamental notions of due process.

13 A litigant “ ‘must assert his own legal rights and inter-

ests, and cannot rest his claim to relief on the legal rights or

(Continued on following page)

27

This narrow issue is not the kind of question that

calls for resolution by this Court. Indeed, it has already

been resolved by the several cases, cited in both of the

lower courts’ opinions, making it clear that the EEOC

need not notify potential claimants of this type of case at

all. (See Court of Appeals opinion, n.10, Petitioner’s

Appendix at 56-57.) Moreover, it is already settled in

analogous Supreme Court cases cited by the Ninth Circuit

herein that due process does not require the government

to notify individuals of the existence of self-executing

bars to litigation. Atkins v. Parker, 472 U.S. 115 (1985), and

Texaco, Inc. v. Short, 454 U.S. 516 (1982). (See Petitioner’s

Appendix at 59-60.)

To the extent that Petitioner seeks to impart an aura

of constitutional significance to this matter by making

sweeping charges about the EEOC’s failure to send any

notice to certain pilots, and its failure to follow up on

known pilots for whom it had no addresses, the attempt

(Continued from previous page)

interests of third parties.’ ” United States Dept. of Labor v. Trip-

lett, _ U.S. __, 110 S.Ct. 1428, 1431 (1990) (quoting Valley

Forge Christian College v. Americans United for Separation of

Church & State, 454 U.S. 464, 474 (1982) (citation omitted));

Warth v. Seldin, 422 U.S. 490, 499, 518 (1975). In Tyler v. Judges of

Court of Registration, 179 U.S. 405 (1900), the plaintiff, who had

actual notice of land title registration proceedings asserted a

due process challenge to the statutory notice proceeding. The

Court dismissed the writ of error, holding that plaintiff, having

actual notice, could not question the statutory notice provi-

sions. See also American Power Co. v. S.E.C., 329 U.S. 90, 107

(1946) (company had no standing to challenge statute based on

its security holders’ constitutional rights to notice and hear-

ing.)

28

should fail even if Petitioner were one of those pilots who

did not receive notice. As both of the courts below held,

and as discussed above, it is well-established that the

claimants in this case had no constitutionally protected

interest in their claims once the EEOC filed suit. More-

over, even if some standardized form of notice might be

desirable in most ADEA actions, this highly publicized

case, about which no former Pan Am pilot could credibly

claim ignorance (Petitioner’s Appendix, pp. 17-24), is not

the proper case in which to test that proposition.

Contrary to Petitioner’s suggestion that hundreds or

thousands of people are affected by this matter, Petitioner’s

position appears to be unique. Mr. King’s unauthorized

“response” to the petition notwithstanding, Petitioner is now

the sole person pursuing an objection to this settlement.'4 On

the other hand, further delay in finalizing this matter will

force over 100 elderly former pilots to continue to wait — as

they have already waited for nearly a decade - for their

shares of the settlement fund.

In sum, the narrow issue which Petitioner presents is

one that has in fact been resolved by analogous prece-

dents and in any event is not one which requires this

Court’s supervision.

>

14 It is notable that Mr. Keith is an attorney, who was

capable of contacting the attorneys in this case to ascertain its

scope if there were any ambiguities in the EEOC’s letter or the

newsletter, both of which he was found to have received.

Moreover, it would be fundamentally unfair if Petitioner, by

asserting broad claims as to which he has no standing, could

overturn the consent decree in this case on behalf of objector-

claimants who might have asserted such claims, but who con-

sciously chose not to file any appeals, or not to pursue them.

29

CONCLUSION

For the foregoing reasons, this Court should deny the

petition for a writ of certiorari.

Respectfully submitted,

Rosert S. VENNING

JupitH Z. Goip

HELLER, EHRMAN, WHITE &

McAuLIFFE

Attorneys for Respondent

Pan American World Airways, Inc.