# Opposition Brief — Keith v. Equal Employment Opportunity Commission

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 815

## Text

% 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 (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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1575%3A3. Public record. Not legal advice.