Petition for Writ of Certiorari — American Airlines, Inc. v. Tice

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98170 4 apr o¢ 1999

IN THE

Supreme Court of the United States

OcTOBER TERM, 1998

AMERICAN AIRLINES, INC.,

Pe Titioner,

ROBERT H. TICE, et ai.,

Respondents

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

TERENCE G. CONNOR

Counsel of Record

LISETTE E. SIMON

JASON S. MAZER

Of Counsel MoraGan, Lewis & Bockius LLP

Attorneys for Petitioner

Bruce J. Ennis, JR. 5300 First Union Financial Center

JENNER & BLOCK 200 South Biscayne Boulevard

601 Thirteenth Street, N.W. Miami, Florida 33131-3229

Washington, D.C. 20005 (305) 579-0316

@©) Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 + (800) 359-6859

QUESTION PRESENTED FOR REVIEW

|. Whether, under the doctrine of adequate

representation, a doctrine this Court has recognized, issue or

claim preclusion is appropriate when

A. the same defendant is subjected to successive suits,

involving identical factual circumstances and legal

arguments, brought by members of the same

organization (such as a union whose members are

covered by the same collective bargaining agreement)

on an issue common to all; and/or

B. after the Government entity that is charged with

enforcing a law establishing private rights litigates

an issue to final judgment, private litigants protected

by that Statute seek to relitigate the same issue.

PARTIES TO THE PROCEEDINGS BELOW

Petitioner: American Atrlines

sidiary of AMR Corporation

Respondents:

Fredirick W. Arndt

Gerald E. Bushrow

John R. Connells

lerry J. Cook

Thomas A. Dwyer

Herbert H. Hamilton

Martin H. O'Leary

William T. Reiners

Wilbur A. Shiflet

Ralph W. Sirek

Robert H. Tice

Anthony L. Visconti

Inc., a wholly-owned

rTABLE OF CONTENTS

Page

Question Presented for Review

Parties to the Proceedings Below . hes 1

fable of Contents . | | ; i

lable of Cited Authorities

lable of Appendices .. | 1X

Opinions Below ... ; Ke .

Statement of Jurisdiction ari | |

Constitutional Provision Involved

Statement of the Case ae i ae 2

A. Factual Background 2

B. Proceedings Below ......... it 5

Reasons for Granting the Writ ]

[. This Court’s Review Is Needed To Resolve An

Important Conflict As To The Scope Of The

Privity Exception With Respect To Claim And

SONNE POGHANIOM, os Sc cc ees es 9

2 ae P am thik athae Dean se

\ The Circuits Disagree Whether Preclusion

ls Appropriate Absent Class Certification

or Formal Privity.

B [he Circuits Disagree as to the Preclusive

Effect of a Decision Against A Public

Entity Which Had Attempted To Entorce

Private Rights.

Chis Petition Raises An Important Question Of

Federal Law Concerning Nonparty Preclusion

Which Should Be Decided By This Court

nclusion

rABLE OF CITED AUTHORITIES

Cases:

lerojet-General Corp. v. Askew, 511 F.2d 710 (Sth

Cir.), cert. denied, 423 U.S. 908 (1975) ........

Baker v. Delta Air Lines, Inc., 6 F.3d 632 (9th Cir.

COIS. ic Ka we ee ee

Becherer v. Merrill Lynch Pierce & Smith. Inc.. 131

F.3d 580 (6th Cir. 1997), vacated, reh'g en banc

granted, 1998 U.S. App. LEXIS 2051 (6th Cir. 1998)

Berman v. Denver Tramway ( orp., 197 F.2d 946 (10th

Cir. 1952)

Bittinger v. Tecumseh Progs Co., 123 F.3d 877 (6th

Cir. 1997), reh'g en banc denied, (Oct. 21. 1997)

Blonder-Tongue Laboratories, Inc. v. University of

Illinois Foundation, 402 U.S. 313 (1971) ....... i

Bowe v. Colgate Palmolive, 489 F.2d 896 (7th Cir.

CFIGD Rees ake SR CEM Cie eeb ee e e es

Chase Manhattan N.A. v. Celotex Corp., 56 F.3d 343

CSU Rs BOOS ooh or bee ee beoe ee

Collins et al. v. Dupont de Nemours and Co., 34 F.3d

172 (3rd Cir. 1994)

‘age

Pare

Consolidated Rail Corp. v. Railway Labor Executives

Ass'n, 491 U.S. 299 (1989)

EEOC v. American Airlines, 835 F. Supp. 911 (N.D.

Pex. 1993), aff'd, 48 F.3d 164 (Sth Cir. 1995)

= 2 35.

Gonzalez v. Banco Central Corp., 27 F.3d 751 (ist Ci

1994)

Hansberry v. Lee, 311 U.S. 32 (1940)

In re Schimmels, 127 F.3d 875 (9th Cir. 1997) 13,

Johnson et al. v. American Airlines, Inc., 745 F.2d 988

(Sth Cir. 1984), cert. denied, 472 U.S. 1027 (1985)

eis » oa We oye 8 ae Os

Los Angeles Branch NAACP v. Los Angeles Unified

School District. 750 F.2d 731 (9th Cir L984), ceri

denied, 474 U.S. 919 ( 1985)

Vartin v. Wilks et al., 490 U.S. 755 (1989)

Murnane, Secretary of Labor v. American Airlines. 482

F. Supp. 135 (D.D.C. 1979), aff'd, 667 F.2d 98 (D.C.

eZ 198] ), cert denied, 456 l S 915 (1982)

—~ *

—

VAACP vy. Hunt, 891 F.2d 1555 (11th Cir. 1990)

Vil

Cited Authorities

Page

Richards et al. v. Jefferson County Alabama et al.. 517

U.S. 793 (1996) .. ik ee wine eek soo ee eo ee

Roddie v. American Airlines, Inc., No. 4:96-CV-548-

Petree, £68. BONE D 1906) ok ks wi vi eieckns. 24

South Central Bell Telephone Co. v. Alabama, 119

i ee SE CONE va hw oe kk Re Sole Sige 1S

Southwest Airlines Co. v. Texas Int'l Airlines. 546 F.2d

84 (Sth Cir.), cert. denied, 434 U.S. 832 (1977) ... 16

lice v. American Airlines, 959 F. Supp. 928 (N.D. III.

1997), rev'd, 162 F.3d 966 (7th Cir. 1998) ......

(xd Bak bese Pie eesecevewsaw My We Oe bes boy ely a4

lyus v. Schoemehl, 93 F.3d 449 (8th Cir. 1996). cert

denied sub nom, Miller v. Schoemehl. 520 U.S. 1166

$6 os Se is oa ee ee

United States v. lTT Rayonier, Inc., 627 F.2d 996 (9th

Re WORE ado yi Ra oe oe or ae

United Steel Workers of America v. Warrior and Gulf

Navigation Co., 363 U.S. 574 (1960) .......... 14

Statutes:

a Cee. Oe SE ee ry |

29 U.S.C. § 621 ef a gh ek Mc oie 2

29 U.S.C

626(b)

De ee tga AO we wae

i. Som Ree FY. OP by Rees RI gS Ee name ENE PA

29 U.S.C

626(d) Be ee aac ee a teas oe Ge eta ri

4? U.S.C. § 1973

Qed * ome | Gee eer re

United States Constitution:

Fifth Amendment ............ halgeorg tart EMI beri a

Rule:

OR aS. ay oe 5 Re ee Per er rrr re err

Other Authorities:

Reorganization Plan No. | of 1978, § 2, 43 Fed. Reg

19807 (1970)

'*.

TABLE OF APPENDICES

Appendix A Opinion Of The United States Court

Of Appeals For The Seventh Circuit Dated December

17, 1998

Appendix B Memorandum Opinion And Order Of

The United States District Court For The Northern

District Of Illinois, Eastern Division Dated March

Peg Re ao ws Ea ea eee Ree ee

Appendix C — Judgment Of The United States District

Court For The Northern District Of Illinois, Eastern

Division Dated March 31, 1997 ...............

Appendix D Minute Order Of The United States

District Court For The Northern District Of Illinois

Praesens Ai RT ee a ee eee

Appendix E Minute Order Form Dated March 31,

1997

Appendix F Order Of The United States Court Of

Appeals For The Seventh Circuit Denying Petition

For Rehearing Dated January 26,1999 ........

Page

19a

38a

39a

4la

American Airlines, Inc. (“American” or “Petitioner’’)

respectfully petitions this Court for a Writ of Certiorari to

review the judgment of the Court of Appeals in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit was rendered on December 17, 1998 and

is reported at 162 F.3d 966 (7th Cir. 1998). A copy of the

opinion is reprinted in the Pet. App.la-18a. The district

court's opinion is reported at 959 F. Supp. 928 (N.D. Ill. 1997)

and is reprinted at Pet. App. 19a-37a.

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals was entered on

December 17, 1998. American filed a Petition for Rehearing

with Suggestion for Rehearing en banc on December 31,

1998, and the petition for rehearing was denied on January

26, 1999. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The constitutional provision involved in this case is the

Due Process Clause of the Fifth Amendment to the United

States Constitution, which provides in pertinent part:

No person shall be. . . deprived of life, liberty, or

property, without due process of law.

STATEMENT OF THE CASE

A. Factual Background

Certain aircraft operated by American Airlines, Inc.

(“American”) have three cockpit seats: (1) for the captain in

command of the aircraft; (2) for the first officer or “co-pilot”;

and (3) for a flight engineer or flight officer. The captain and

first officer pilot the aircraft; the flight officer monitors the

aircraft’s fuel, electrical, hydraulic and other systems. For

thirty-five years, as part of its safety policy, American has

used the flight officer seat to train future pilots. It hires

licensed pilots for that position and requires them to progress,

through training and seniority bidding under their collective

bargaining agreement, from flight officer to first officer to

captain. No one is hired for the position of flight officer who

cannot progress to captain and serve for a reasonable period

of time before reaching 60, the mandatory retirement age for

pilots imposed by the Federal Aviation Administration

(“FAA”).' In the case below, several retired captains

challenged American’s training policy as a violation of the

Age Discrimination in Employment Act of 1967, 29 U.S.C.

§ 621 et seg. (“ADEA”) because it prevented them from using

their seniority to “bid-down” to the flight officer seat for

which there is no requirement that the occupant retire at age

60.

American has successfully defended its policy against

the very same ADEA challenge in prior litigation. Both the

Fifth and the District of Columbia Circuits have affirmed

district court decisions upholding American’s refusal to hire

and/or to allow captains to “bid down” to the training seat as

l. See 14 C.F.R. § 121.383(c).

a bona fide occupational qualification, and therefore expressly

permitted under the ADEA.” In Murnane, Secretary of Labor

v. American Airlines, 482 F. Supp. 135 (D.D.C. 1979), aff'd,

667 F.2d 98 (D.C. Cir. 1981), cert. denied, 456 U.S. 915

(1982), the 43 year-old plaintiff had been rejected for the

training seat as a new hire because there was no actuarial

possibility that he could successfully progress to the captain’s

seat and serve there, given the size of the airline at the time

and the FAA’s age-60 rule. The Department of Labor

intervened as a plaintiff,’ supporting Murnane’s claim that

American’s policy of reserving the third seat for training

future captains violated the ADEA. The district court ruled

for American, finding that American’s training-seat policy

was reasonably necessary to the safety of its operations in

light of the extraordinary standard of care imposed on air

carriers. Murnane, 482 F. Supp. at 146. The court held that

American’s policy was a bona fide occupational qualification

and, therefore, did not violate the ADEA. /d. at 145-48. The

District of Columbia Circuit affirmed, expressly recognizing

the “great leeway and discretion” afforded the industry in

determining the safest manner in which to serve the flying

public. Murnane, 667 F.2d at 99. This Court declined review.

2. The same challenge has been brought in three other

unreported cases without any decision on the merits. Two were

dismissed voluntarily: a claim by the EEOC brought in the District

Court for the Southern District of California and a claim by several

captains brought in the Middle District of Florida. The third, in the

Northern District of Texas is described in full at p. 24 n.9

3. At that time, the Secretary of Labor held the enforcement

role now assigned to the Equal Employment Opportunity Commission

(“EEOC”). The EEOC assumed the Secretary's job as the government

agency for enforcing the ADEA in 1979, pursuant to Reorganization

Plan No. 1 of 1978, § 2, 43 Fed. Reg. 19807 (1970). See 29 U.S.C.

§ 625.

After Murnane was decided, 22 retiring American pilots,

acting for themselves and “others similarly situated,” and

represented by the same counsel as the Jice plaintiffs here,

commenced another challenge to American’s training-seat

policy in Johnson et al. v. American Airlines, Inc., 745 F.2d

988 (Sth Cir. 1984), cert. denied, 472 U.S. 1027 (1985). The

Johnson plaintiffs challenged the same policy at issue in

Murnane, on the same legal grounds, but from a different

factual perspective. The Johnson plaintiffs challenged

American’s refusal to allow pilots who had reached the FAA’s

mandatory retirement age to exercise their seniority under

the collective bargaining agreement between American and

the Allied Pilots Association acting on their behalf to “bid

down” to the flight officer seat.* The jury, and court, found

American’s practice of reserving the third seat for future

captains to be a bona fide occupational qualification. The

Fifth Circuit affirmed, and again, this Court declined review.

Then, again, in 1993, the EEOC brought a lawsuit on

behalf of pilots who applied for, but were denied, initial

employment as flight officers, seeking to enjoin American's

training-seat policy on the ground that it violated the ADEA.

EEOC vy. American Airlines, 835 F. Supp. 911 (N.D. Tex.

1993), aff'd, 48 F.3d 164 (Sth Cir. 1995). The district court

found that collateral estoppel precluded relitigation of the

same issue that had been litigated in Murnane and decided

4. The collective bargaining agreement sets forth, among other

things, the rules that govern semiority and bidding for available

positions. Whether that agreement allows pilots a contractual right

to bid down to the flight officer seat 1s a matter of interpretation that

would be governed by the “minor dispute” resolution procedures

mandated by the Railway Labor Act, 45 U.S.C. § 184. See

Consolidated Rail Corp. v. Railway Labor Executives Ass'n, 491

U.S. 299 (1989).

against the EEOC, dismissing the action. See EEOC, 48 F.3d

at 165. The Fifth Circuit affirmed, holding that Murnane

barred a new generation of attacks on American’s training-

seat policy because Murnane had established that the policy

was a bona fide occupational qualification. /d. at 169 n.6. In

all three cases, plaintiffs sought to enjoin American’s

continued use of the policy as a violation of the same ADEA

provisions.

Eight months after the Fifth Circuit’s decision in EEOC,

the same attorney who had represented the Johnson private

plaintiffs (supported on appeal to the Seventh Circuit by the

same EEOC counsel who appeared in the agency’s Fifth

Circuit case) brought the action below. And, again, the

plaintiffs here challenge the same policy on the same legal

grounds. They reassert the identical claims asserted by the

Johnson plaintiffs, that American is required by the ADEA

to permit them to “bid down” to the flight officer seat.

Plaintiffs below also sue not only for themselves but also on

behalf of “all others similarly situated,” as had the Johnson

plaintiffs. The seniority on which they rely to acquire such

positions by the bidding process is the same seniority asserted

and relied on by the plaintiffs in Johnson and by any other

pilot: the seniority prescribed under the collective bargaining

agreement to which they are all parties through their union,

the Allied Pilots Association.

B. Proceedings Below

American sought to dismiss the Tice complaint because

the plaintiffs’ contention that its training-seat policy violated

the ADEA had been litigated and decided by each of these

prior adjudications in American’s favor and against their

Allied Pilots Association predecessors, as well as against the

government agencies charged with enforcing the ADEA on

behalf of individuals and as public attorney general. American

argued both that the Jice plaintiffs’ claims were barred

because they were precluded by the decision in JoAnson, and

that the plaintiffs were collaterally estopped from relitigating

whether American’s training-seat policy was a bona fide

occupational qualification because that same issue had been

litigated and decided against the Department of Labor and

the EEOC suing on behalf of applicants. The court granted

American’s motion for judgment on the pleadings on res

judicata grounds, finding that the claims and interests of the

Tice plaintiffs were identical to those previously litigated in

Johnson and therefore, the earlier Johnson plaintiffs had

“virtually represented” the current plaintiffs when Johnson

and the other pilots sued American on the same claim, and

on behalf of those similarly situated. Pet. App. 36a. Plaintiffs

appealed.

On appeal, the Seventh Circuit reyected American’s

argument that the representative status of the Johnson

plaintiffs, as well as the issue-preclusive effect of the

government’s litigation in Murnane and EEOC, justified the

district court’s dismissal of this action, and reversed. The

court held that the Johnson plaintiffs could have adequately

represented the Jice plaintiffs on/y if there had been a certified

class under Fed. R. Civ. P. 23 or formal privity between the

Tice plaintiffs and the Johnson plaintiffs at the time of the

Johnson suit.

Unless there is a properly certified class action,

handled with the procedural safeguards both state

and federal rules afford, normal privity analysis

must govern whether nonparties to an earlier case

can be bound to the result.

—E—E—E——

Pet. App. 13a. The court further rejected American’s

argument that the doctrine of collateral estoppel precluded

relitigation of the bona fide occupational qualification issue

where it had previously been raised, and lost, by the agency

statutorily authorized to enforce the ADEA as public

“attorney general.” See 29 U.S.C. § 626(c)(1). American’s

motion for rehearing en banc was denied on January 26, 1999.

Pet. App. 43a-44a.

REASONS FOR GRANTING THE WRIT

This case presents the Court with an issue of great

importance to the consistency and finality of adjudication in

the federal courts. In the words of the Seventh Circuit's

opinion below, it is an issue that:

. Stands at the intersection of two important

principles of civil litigation: the right, grounded

both in due process and in the property right

represented by the lawsuit chose in action, of each

individual to assert her own claims; and the need

of litigants and the judicial system alike for finality

of decision after a full and fair airing of a matter.

Pet. App. 8a. As this Court has repeatedly acknowledged,

preclusion law is subject to decisional evolution, not for the

purpose of maintaining or developing formal rules, but as a

“measure of the fairness of the rules of res judicata.” See

Blonder-Tongue Laboratories, Inc. v. University of Illinois

Foundation, 402 U.S. 313, 325 (1971). The underpinning of

the concept of res judicata is the “prevention of harassment

of some litigants by the repeated assertion of the same or

different claims against them by others... .” /d. at 328 n.18.

Guiding the trial courts of the United States, this Court

has fashioned the federal preclusion rules to strike a balance

between the competing interests of judicial economy and

finality of judgments, and the due process rights of litigants.

Blonder-Tongue, 402 U.S. at 328-29. In doing so, the Court

has also repeatedly acknowledged that nonparties to earlier

litigation may constitutionally be bound by the results if their

interests are sufficiently represented in that earlier litigation.

Hansberry v. Lee, 311 U.S. 32, 42-43 (1940) (acknowledging

“that members of a class not present as parties to the litigation

may be bound by the judgment where they are in fact

adequately represented by parties who are present”); see also

Martin v. Wilks et al., 490 U.S. 755, 762 n.2 (1989) (same);

Richards et al. v. Jefferson County Alabama et al., 517 U.S.

793, 798 (1996) (recognizing “an exception to the general

rule when ... a person ... has his interests adequately

represented by someone with the same interests who is a

party’’).

Although this Court has considered related issues in the

recent past, it has left open the question of what circumstances

constitute “adequate representation” so as to justify preclusion

against nonparties to earlier litigation. The lower federal

courts have grappled with this question, reaching different

and conflicting conclusions. This question of federal

preclusion law is an important one that affects an increasing

number and variety of cases as the nation’s economy emerges

onto a global stage. More and more companies can be sued

in every one of the 94 federal district courts on the same

claim — imposing the costs of litigation, including extensive

discovery, over and over again — even though the suits raise

the same legal issues in identical factual circumstances. This

Court should grant certiorari to resolve the conflicts among

the circuits because the question affects this substantial and

| ee i

growing number of cases throughout the country. Because

state preclusion law must also comport with constitutional

due process, this Court’s guidance as to the scope of the

privity exception for purposes of preclusion would provide,

in addition, significant help to state courts applying state law.

THIS COURT’S REVIEW IS NEEDED TO RESOLVE

AN IMPORTANT CONFLICT AS TO THE SCOPE OF

THE PRIVITY EXCEPTION WITH RESPECT TO

CLAIM AND ISSUE PRECLUSION.

Since at least 1975, the lower federal courts have

expressly recognized the principle that a party not directly

involved in prior litigation, but whose interests were “virtually

represented” in that litigation, may be bound by its results.

See, e.g., Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th

Cir.), cert. denied, 423 U.S. 908 (1975). But, as the Eighth

Circuit recognized in Tyus v. Schoemehl,

although this principle is generally accepted,

courts are sharply divided on how to implement

this strand of issue preclusion.

93 F.3d 449, 454 (8th Cir. 1996), cert. denied sub nom, Miller

v. Schoemehl, 520 U.S. 1166 (1997) (emphasis added). A

comparision of 7yus with the Seventh Circuit’s decision

below exposes clearly this “sharp division” among the courts

of the United States over claim and issue preclusion, its scope

and limitations. The conflict is between those courts that

would give preclusion “wider application” to preclude

repetitive and harassing litigation, and those, like the court

below, that find preclusion appropriate on/y where there is

formal privity or identity of parties between cases. /d. at 454-

55. This Court has acknowledged the modern expansion of

the concept of “privity” in current usage as describing

“various relationships between litigants that would not have

come within the traditional definition of the term.” Richards,

517 U.S. at 798; see Tyus, 93 F.3d at 455. But the extent to

which the courts may employ this expanded concept to

prevent harassing and repetitive litigation over identical issues

is in sharp dispute, as is illustrated by the difference between

the Eighth Circuit’s approach in 7yus and that of the Seventh

Circuit below.

A. The Circuits Disagree Whether Preclusion Is

Appropriate Absent Class Certification or Formal

Privity.

The Seventh Circuit took a highly restrictive view of

privity and virtual representation. It made clear its disdain

for virtual representation or expanded notions of modern

privity, referring to virtual representation as only a “catchy

phrase” and a “heuristic.” Pet App. 7a, 10a. In the Seventh

Circuit’s view, relitigation is not only permitted, but required,

whenever the second party was not actually involved in some

way in the first litigation (for example, as a member of a

certified class), and where the second party does not stand in

the first party’s shoes either by contract or by law. Certain

other circuits have taken a similarly restrictive view. The First

Circuit has held that virtual representation will not serve to

bar a nonparty’s claim unless the nonparty has had actual or

constructive notice of the earlier litigation. Gonzalez v. Banco

Central Corp., 27 F.3d 751, 761 (1st Cir. 1994). The Sixth

Circuit’s jurisprudence is less clear, but appears to adopt the

restrictive view of virtual representation. See Bittinger v.

Tecumseh Progs Co., 123 F.3d 877 (6th Cir. 1997), reh'g en

banc denied (Oct. 21, 1997); but see Becherer v. Merrill

Lynch Pierce & Smith, Inc., 131 F.3d 580 (6th Cir. 1997),

vacated, reh’g en banc granted, 1998 U.S. App. LEXIS 2051

(6th Cir. 1998). See also Collins et al. v. Dupont de Nemours

and Co., 34 F.3d 172, 177 (3rd Cir. 1994) (interpreting New

Jersey law to confine preclusion to cases where the parties in

the earlier litigation and those sought to be precluded had a

“pre-existing legal relationship”).

In sharp contrast with the Seventh Circuit’s approach,

the Eighth Circuit in 7yus recognized that privity today, for

purposes of preclusion, means more than formal privity. 93

F.3d at 455. Thus, the court focused its attention on whether

the interests of the plaintiffs in Tyus were sufficiently

represented in the first lawsuit, such that the second plaintiffs

should be bound by the earlier decision. /d. at 454. In that

case, the initial plaintiffs were members of the St. Louis Board

of Aldermen who sued the City of St. Louis challenging

certain election boundaries under the Voting Rights Act of

1965, 42 U.S.C. § 1973, claiming the boundaries diluted

minority participation in voting districts to the detriment of

“black voting strength.” 93 F.3d at 453. While the City’s

motion for summary judgment was pending, some of the

initial plaintiffs attempted to withdraw from the case and filed

a second lawsuit with new co-plaintiffs raising the identical

claim. The district court hearing the first lawsuit granted

summary judgment for the City. The court hearing the second

lawsuit then dismissed that action as res judicata. Id. at 452.

On appeal, the Eighth Circuit analyzed the question under an

“issue preclusion theory,” which it defined as referring “to

the effect of a judgment in foreclosing relitigation of a matter

that has been litigated and decided.” /d. at 453.

The Eighth Circuit affirmed the lower court’s finding of

preclusion on three grounds. First, the court found that even

the new plaintiffs had a sufficient relationship to the earlier

plaintiffs to satisfy the requirements for preclusion because

of their co-plaintiff relationship with parties to the initial suit.

Id. at 457. Second, the court found that the evidence of tactical

maneuvering also counseled in favor of preclusion. /d. Third,

the court recognized that the two sets of plaintiffs had

identical interests in pursug identical claims, recognizing

that: “One party ‘adequately represents’ the interests of

another when the interests of the two parties are very closely

aligned and the first party had a strong incentive to protect

the interest of the second party.” /d. at 455-56 (emphasis

added).

Significantly, the Eighth Circuit recognized that a

different decision would have permitted “various members

of a coordinated group to bring separate lawsuits in the hope

that one member of the group would eventually be successful,

benefiting the entire group.” /d. at 457. Thus, it found that if

it had “held preclusion inapplicable, this case could assume

immortality,” which would entail “a significant cost to the

judicial system” and discourage “the principles and polic[ijes

the doctrine of res judicata was designed to promote.” /d.

(quotation omitted).

The Ninth Circuit has also held preclusion applicable

when the initial and subsequent plaintiffs have identical legal

claims and interests and are involved in the same effort,

despite the absence of class certification or formal privity.

Thus, in United States v. [TT Rayonier, Inc., 627 F.2d 996

(9th Cir. 1980), the Ninth Circuit found privity between a

state agency and a federal agency where both were attempting

to enforce pollution requirements against a private company,

such that the decision against the state agency was held to

collaterally estop the federal agency from relitigating the

central issue in a federal enforcement action. Although the

court expressly held that there was no agency relationship

between the state and federal entities, it found the relationship

close enough to preclude relitigation of the same issue. In

In re Schimmels, 127 F.3d 875 (9th Cir. 1997), the court found

privity sufficient to justify preclusion in the relationship of

private qui tam relators and the federal government, even

though there was no formal privity and each had an

independent financial interest in the outcome, because it

found a “unity of interest between the relators and the

government.” /d. at 883. See also Chase Manhattan N.A. v.

Celotex Corp., 56 F.3d 343, 345 (2nd Cir. 1995) (analysis of

issue preclusion focuses on the parties’ incentives to

litigation); see generally NAACP v. Hunt, 891 F.2d 1555 (11th

Cir. 1990) (applying Alabama preclusion law to bar an

identical claim asserted by parties who, like the plaintiffs

who had raised, and lost, the claim in an earlier suit, were

members of the National Association for the Advancement

of Colored People and of the Alabama Legislature, based on

a finding of virtual representation and considerations of

judicial economy).

The conflicts between these circuits with respect to the

scope of privity and virtual representation provides strong

evidence of the need for this Court’s guidance. Under the

restrictive approach adopted by the Seventh Circuit and

others, preclusion will never apply to successive pilot suits.

American will be required to relitigate, and the judicial system

will be required to allocate precious resources to reconsider

precisely the same argument with respect to precisely the

same law and facts until precedent is established throughout

the country. Under the broader approach adopted by the

Eighth Circuit and others, the district court’s decision in this

case that preclusion is appropriate would have been affirmed.

Under that approach, the court would consider the fact that

the Jice plaintiffs are members of the same group as the

Johnson plaintiffs. All were members of a unit of airline pilots

represented by the same union, and all were parties, through

that union, to the same collective bargaining agreement that

defined the terms and conditions of their employment and

their pension benefits with American. Each attempted to use

his employment seniority in American’s cockpits under that

collective bargaining agreement as the “currency” to purchase

the right to work in the flight officer position after FAA-

mandated retirement at age 60. Significantly, any ability to

exercise their alleged rights to move to that third seat depends

entirely on whether that collective bargaining agreement (and

the custom and practice under that agreement)’, which

governs all of the employment terms and conditions of all

sets of plaintiffs in these cases, allows them to “bid down” to

that seat. Therefore, not only were the pilots asserting an

identical statutory claim against American’s training-seat

policy, but they asserted a right that could be realized only

through the terms of a contract that was common to all of

them.

Under the 7yus approach, a court would consider that

every American pilot is in the identical position when he or

she reaches 60 years of age, and at that point has precisely

the same interests as pilots who reached that age earlier. Thus,

the 7ice and Johnson plaintiffs had exactly the same interests,

when they brought suit. The Johnson plaintiffs’ incentive to

5. See United Steel Workers of America v. Warrior and Gulf

Navigation Co., 363 U.S. 574, 581-82 (1960) (The collective

bargaining agreement extends not only to the written language but

also the practices of the industry and the “shop,” from which a

common law develops.).

ee ee ee

prolong their cockpit careers by eliminating the training-seat

policy is the same incentive the Tice plaintiffs have to prolong

their cockpit careers. Moreover, it is the same incentive that

every American pilot reaching 60 will have. Under this

approach, the complete identity of claims, the complete

identity of legal arguments and defenses, and the fact that

these claims are being presented by members of the same

employment group, bound by the same employment contract

for the same position, necessarily lead to the conclusion that

the Johnson plaintiffs’ representation of the Tice plaintiffs’

interests is adequate for purposes of preclusion. Here, in

addition, the Tice plaintiffs are represented by the same

counsel who represented the Johnson plaintiffs.

Thus, the “sharp division” among the circuits is one this

Court should address, and one that is squarely presented by

the case at bar. This Court’s recent decisions in Richards

and South Central Bell Telephone Co. v. Alabama, 119

S. Ct. 1180 (1999), did not reach the question presented here.

Although Richards noted the expansion of the doctrine of

privity by lower courts and their recognition of adequate

representation, 517 U.S. at 798, neither that case nor South

Central Bell required this Court to explore the scope or limits

of that expansion. In both Richards and in South Central Bell,

the subsequent plaintiffs were wholly unrelated to the initial

plaintiffs. They were not members of the same group or

parties to the same contractual arrangement, directly or

indirectly. In deciding the questions presented by those cases,

therefore, this Court had no need to consider whether

preclusion is appropriate where plaintiffs have such a

relationship. Further, unlike the Johnson plaintiffs, the initial

litigants in Richards and South Central Bell had not sued on

behalf of others similarly situated and had not given the court

any indication that they intended to represent others.

B. The Circuits Disagree as to the Preclusive Effect of a

Decision Against A Public Entity Which Had

Attempted To Enforce Private Rights.

This case also presents a related question on which the

circuits differ: the preclusive effect of a prior final judgment

against a governmental authority where the government acts

as a public enforcer of private rights. The court below held

that a prior plaintiff's “status as a public body” has no impact

on the collateral estoppel analysis. Pet. App. 16a-17a. In

contrast, the Fifth, Ninth, and Tenth Circuits’ view is that

governmental authorities, because they are governmental

authorities, may be found to have adequately represented

other interested parties, even absent express or implied

agreement, so as to preclude repetitive litigation of the same

issues or claims. Thus, in Southwest Airlines Co. v. Texas

Int'l Airlines, 546 F.2d 84, 98 (Sth Cir.), cert. denied, 434

U.S. 832 (1977), the Fifth Circuit held that a prior decision

in a suit brought by the City of Dallas precluded a later suit

by Southwest Airlines because “the relationship between the

city as public enforcer of the ordinance and the airlines as

private enforcers is close enough to preclude relitigation.”

Indeed, the court found the role of the city as public enforcer

sufficient to preclude subsequent private litigation by

Southwest even though the city was pursuing its own

corporate interest in the earlier litigation. It was deemed

sufficient for preclusion that the result sought by the

government, and the legal rights asserted, were the same as

those sought and asserted by the airlines in the second

litigation. /d. at 97-98.

In Berman v. Denver Tramway Corp., 197 F.2d 946 (10th

Cir. 1952), the Tenth Circuit held that a prior judgment against

the City and County of Denver precluded a private party from

‘

raising the same issues in a subsequent suit. The court found

that the private party had been adequately represented by the

local government entities even though there was no express

or implied agreement and the private party did not have notice

or an opportunity to participate in the earlier litigation.

In addition, the Ninth Circuit has noted that the

relationship between governmental authorities as

public enforcers of ordinances and private parties

suing for enforcement as private attorneys general

is close enough to preclude relitigation.

ITT Rayonier, 627 F.2d at 1003; Schimmels, 127 F.3d at 881.

In the latter case, the Ninth Circuit found preclusion in an

almost mirror image of the case at bar, holding that a private

suit by relators in a qui tam action precluded the government

from relitigating the issues, even though each had an

independent financial interest, because the relator was

required to provide notice to the government of the suit and

the government had the authority to intervene. /d. at 882. In

the initial litigation, the relators had provided notice, but the

government had chosen not to intervene; nonetheless, the

court precluded the government from relitigating the same

issues, even for the purposes of recovering its own share of

damages, in a second suit. /d.

In the case at bar, through the statutory charge processing

procedure, employees alleging a violation of the ADEA must

also provide notice to the EEOC, which may investigate and

intervene or bring its own suit, precluding continuation of

the employee’s suit. See 29 U.S.C. § 626(c)-(d). In the case

of the ADEA, moreover, the EEOC has no independent

interest in the outcome of the suit. It acts solely as a public

enforcer of laws enacted on behalf of private parties.‘

rhe preclusion analysis that is appropriate when a prior

claim or position was litigated by a governmental authority

enforcing a law for the benefit of the public is one this Court

left open in Richards, 517 U.S. at 801-02. Contrary to the

view of the court below, Pet. App. 16a-17a, this Court did

not reject the argument that the City of Birmingham’s status

as a public body was relevant to the analysis. This Court found

it unnecessary to reach that question because the City of

Birmingham had not undertaken to represent the interests of

the plaintiffs in the subsequent suit, who were county

taxpayers. /d

The question left open in Richards, however, is squarely

and cleanly presented by this case. The federal agency charged

with enforcing the ADEA on behalf of private employees

has previously litigated whether American’s policy with

respect to the flight officer's seat 1s a bona fide occupational

qualification. See Murnane, 482 F. Supp. at 138; see also

EEOC, 48 F.3d at 167 (agency’s challenge to American’s

policy is collaterally estopped “in light of the vindication of

American's policies over the EEOC’s challenge in

Murnane’). Because plaintiffs challenge the same policy

6. The Fifth and Ninth Circuits have also held governmental

entities precluded by prior litigation involving a different

governmental entity, even when there was no express or implied

agreement or participation in the earlier litigation. See Aerojet-

General Corp. v. Askew, §11 F.2d 710 (Sth Cir. 1975) (prior judgment

against state agencies precluded litigation of the same claim by Dade

County); United States v. [TT Rayonier, 627 F.2d 996 (9th Cir. 1980)

(prior judgment against state agency in state court precluded

relitigation of the same issue by federal agency 1n federal court).

under the same statutory provisions, the case at bar presents

the question whether the EEOC’s prior enforcement litigation

precludes relitigation of the same issue by those whom the

EEOC is charged with protecting.’

This court should grant certiorari to resolve these

conflicts among the circuits, and to furnish guidance to the

State courts on the limits placed by the United States

Constitution with respect to the preclusive effect of earlier

adjudications.

To the extent the decision below rested on the Seventh

Circuit's reading of the ADEA to require a restrictive approach to

preclusion, the decision is in serious tension with the Fifth Circuit's

determination in EEOC v. American, 48 F.3d at 168. The Fifth Circuit

held that the litigation of the bona fide occupational qualification

issue by other pilots and the government in Murnane previously

precluded the EEOC from relitigating the same issue on behalf of 47

new pilots. The Fifth Circuit found nothing in the statutory provisions

or purposes of the ADEA to require more restrictive preclusion rules

Moreover, reconciling both circuit decisions would lead to an

anomaly clearly at odds with the ADEA because it would permit an

endless succession of private employees to challenge American's

training-seat policy but preclude the EEOC from further challenges.

Whatever else it provided, Congress clearly viewed the EEOC as its

public attorney general, and preferred plaintiff, in ADEA suits. Thus,

it not only permitted the EEOC to sue on behalf of employees, but

provided that when the EEOC did so, the affected employees lost

any right to sue on their own behalf. 29 U.S.C. § 626(b)-(c). To the

extent that the Seventh and Fifth Circuit decisions can be reconciled,

they turn that statutory preference on its head.

THIS PETITION RAISES AN IMPORTANT

QUESTION OF FEDERAL LAW CONCERNING

NONPARTY PRECLUSION WHICH SHOULD BE

DECIDED BY THIS COURT.

As Justice White observed for a unanimous Court in

Blonder-Tongue Laboratories, 402 U.S. at 328, res judicata

law must be re-examined from time to time to assure fairness

in its application. “[P]reclusion offers the opportunity to

eliminate litigation which 1s not necessary or desirable,” such

as harassment of private parties by repetitive litigation of the

same claims. /d. at 328 n.18. Blonder-Tongue eliminated the

requirement of mutuality in collateral estoppel because that

requirement had allowed patent holders to command

significant license fees from undercapitalized opponents

simply by suing them, even though the patents had been found

invalid by courts 1n other jurisdictions. /d. at 328.

The Court should address the scope of privity and virtual

representation questions presented by this case because they

have a significant impact on the allocation of judicial

resources, and the adequacy, finality and fairness of

adjudication. These issues arise in virtually all types of civil

litigation, irrespective of subject matter.

The Seventh Circuit’s restrictive approach places an

unfair and unnecessary burden on private parties to defend

themselves in repetitive litigation, regardless of how often

their conduct has been found lawful. The cost of conducting

discovery and litigating the same issues and claims over and

over 1s very substantial and imposes a particular burden on

regional and national companies who are forced to conduct

Se ee eae ae eRe

business in a haze of uncertainty, because successful litigation

of a significant issue will not be “final” or bring them repose.

Because the Seventh Circuit’s rule requires businesses to

endure seriatim identical litigation over policies that have

repeatedly been adjudicated as lawful, both the businesses’

and the courts’ resources are severely taxed without

advancing the causes of fairness or justice. In a system where

precedent leads to summary dismissal of claims every day,

the private and judicial resources of the nation should not be

burdened by repetitious and identical challenges to policies

and practices previously adjudicated to be legal.

American Airlines, like many businesses, operates in and

is potentially subject to suit over this same policy in every

court in the United States. Under the Seventh Circuit’s rule,

American will have to defend this same policy, a policy that

has without exception been upheld as a bona fide occupational

qualification, against repeated challenges from members of

the same union seeking to exercise the same collective

bargaining rights, free of American’s training seat policy.

The same counsel who brought the Johnson challenge, and

now brings the Jice suit below, can change the caption and

refile the Johnson complaint every time a captain turns 60.

Theoretically, each of American’s 9,000 pilots has a potential

suit in one or another of the 94 federal district courts and the

even more numerous state courts, and American will be

deprived of any finality until there is governing precedent in

every court. Under the decision below, American’s unvaried

success in defending the policy does not preclude relitigation

of its lawfulness. Furthermore, under the decision below, the

EEOC acting as a public attorney general on behalf of these

same union members can continue to bring suit after suit

chailenging this policy under the ADEA even though that

issue has been decided against the EEOC in prior litigation.

Interstate companies and employers, in particular, are

therefore denied any repose after proving their practices are

lawful under the applicable federal statutes. Instead, members

of the plaintiff group, and the government agency on. their

behalf, may make successive attacks in “open circuits,”

burdening the resources of the company and the judiciary

with repetitive relitigation of the policy’s legality. The

restrictive view adopted by the court below provides the same

statutory question with an endless life, available to successive

generations of American pilots, and converts such litigation

into a “war of attrition,” a strategy aimed at exacting

settlements as the only means of avoiding litigation costs. At

each juncture, therefore, American must choose whether its

entirely lawful flight safety policy is simply too expensive

to defend in repetitive litigation despite its unequivocal safety

value for travelers.

As the Eighth Circuit observed, virtual representation is

“particularly appropriate for public law disputes” because the

potential number of plaintiffs for such claims 1s “limitless,”

and because allowing public law claims to be filed

repetitiously, lends “immortality” to those claims. 7yus, 93

F.3d at 457, citing Los Angeles Branch NAACP v. Los Angeles

Unified School District, 750 F.2d 731, 741 (9th Cir. 1984),

cert. denied, 474 U.S. 919 (1985) (interpreting California law

on virtual representation; prior judgment in state proceeding

binds non-class members; no manifest injustice by preclusion

of later suit). The potential supply of plaintiffs in this series

of challenges to American’s policy is limited only by the

number of pilots at American, all of whom are members of

the same union, all seeking to exercise seniority and job

bidding procedures provided by the same collective

bargaining agreement. Each has precisely the same legal

interests, and at age 60, the same factual circumstances and

career prolonging incentives, making it fair to bind them by

final judgments in litigation previously brought by identically

motivated fellow members of the pilot’s union. Further, the

EEOC represents not only current and retired pilots interests,

but also the interests of “over-age” applicants for the flight

officer position. It is therefore fair to preclude pilots from

relitigating issues that have previously been determined in a

suit brought by that public agency, issues such as whether

American’s training-seat policy is a bona fide occupational

qualification within the meaning of the ADEA.

In addition, the broader approach to preclusion in these

circumstances would promote judicial economy by

discouraging “fence sitting.” Tyus 93 F.3d at 456-57. Under

the Seventh Circuit’s rule, potential plaintiffs have virtually

no incentive to join others in challenging this employment

policy. If those bringing the suit win, the fence sitters will

have the benefit of an injunction against the policy, whether

they joined as plaintiffs or not.* If the plaintiffs do not

succeed, they remain free to “shop around” and bring the

identical challenge in a different jurisdiction. The restrictive

rule thus frustrates judicial administration by encouraging

plaintiffs to “sit on the fence” and await the verdict in the

earlier case, knowing they can bring a new suit if the first

litigation is unsuccessful.

American has been in litigation with its retiring pilots,

and with individuals who want to be hired as American pilots,

over its training-seat policy since 1977 without a recess.

Under the decision below, it can expect to remain in litigation

over the identical claims and defenses until it is forced by

8. See Bowe v. Colgate Palmolive, 489 F.2d 896 (7th Cir. 1973);

see also Baker v. Deita Air Lines, Inc., 6 F.3d 632 (9th Cir. 1993).

economics to determine that its completely lawful policy must

be abandoned because it is too burdensome to defend. It is

not in the public interest to force safety decisions to be made

on this basis.

The Seventh Circuit’s rule also encourages forum

shopping by plaintiffs, and the EEOC, who can thereby avoid

the operation of stare decisis. More of the Tice plaintiffs, for

example, are residents of Texas than of any other jurisdiction.

Pet. App. 5a. They chose to litigate in Illinois, and vigorously

opposed transfer to a district court in Texas, where the

challenged policy is administered, the relevant documents

are housed, and most of the witnesses reside, in order to avoid

Fifth Circuit precedent. The 7ice plaintiffs, and their counsel,

chose to litigate in Illinois because their claim could not

survive motions to dismiss in Texas or in the District of

Columbia.”

If, as precedent indicates is likely, the 7ice plaintiffs lose

again in Illinois, American pilots will simply add this judicial

district to their list of venues to avoid and choose another

district to litigate the next case.

This Court should grant certiorari to resolve the conflicts

among the circuits with respect to the scope of privity and

virtual representation. It is neither necessary, nor practical,

9. Cf. Roddie v. American Airlines, Inc., No. 4:96-CV-548-A

(N.D. Tex. Sept. 9, 1996). Captain Roddie filed a complaint identical

to Johnson’s and Tice’s in the Northern District of Texas while this

case awaited adjudication of American’s motion for judgment on

the pleadings. In response, American answered and filed its motion

for judgment on the pleadings in the Northern District of Texas.

Roddie, recognizing circuit precedent, moved for voluntary dismissal

with prejudice and his motion was granted.

to attempt to resolve every question that might arise at the

outer limits of privity, but the lower courts need this Court’s

guidance as to whether preclusion is available only in cases

of formal privity, or whether federal courts may look closely

at the actual relationship between initial and subsequent

plaintiffs to determine whether preclusion would serve the

important objectives of judicial economy and adequacy,

finality and fairness of adjudication, without infringing on

the subsequent plaintiffs’ due process rights. Currently, in

those circuits that have adopted the restrictive approach,

courts may not even consider whether plaintiffs are members

of the same group, standing in identical positions, and seeking

to exercise privileges afforded by the same contractual

agreements. That view imposes substantial burdens on

judicial resources and on defendants who are subject to

harassment from successive and repetitive challenges until

they surrender judgments already won, rather than incur the

cost of defending again.

CONCLUSION

For the reasons stated, the Court should grant the petition

for certiorari

Respectfully submitted,

TERENCE G. CONNOR

Counsel of Record

LISETTE E. SIMON

JASON S. MAZER

MorGan, Lewis & Bockius LLP

Attorneys for Petitioner

§300 First Union Financial Center

200 South Biscayne Boulevard

Miami, Florida 33131-3229

(305) 579-0316

Of Counsel.

Bruce J. ENNIS, JR

JENNER & BLOCK

601 Thirteenth Street, N.W.

Washington, D.C. 20005

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APPENDIX

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

DATED DECEMBER 17, 1998

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 97-1888 & 97-2027

Robert H. Tice, et al.,

Plaintiffs-Appellants, Cross-Appellees,

American Airlines, Inc.,

Defendant-Appellee, Cross-Appellant.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 95 C 6890 — Ann C. Williams, Judge.

Argued November 7, 1997 —- Decided December 17, 1998

Before Coffey, Flaum, and Diane P. Wood, Circuit

Judges.

Diane P. Wood, Circuit Judge. It is a fundamental

principle of American law that every person is entitled to his

or her day in court. Multiple victims of air disasters, multiple

stockholders of companies that have committed securities

violations, and multiple holders of rights in pensions,

Appendix A

normally may all bring their own suits even if the defendant

engaged in a single course of action that affected everyone

similarly. One formal exception to this principle is the class

action, recognized in federal court under Fed. R. Civ. P. 23.

The vigor with which the defense bar has often opposed class

certifications might cause one to think that defendants prefer

to take their cases one at a time, but that would be too

simplistic a view. In fact, the existence and incidence of

another exception to the general rule, the doctrine of virtual

representation, suggests that defendants sometimes like the

benefits of a group result — because it is usually defendants

who argue that a new group of plaintiffs is barred from

bringing an action since the plaintiff in an earlier suit was its

“virtual representative.”

This case requires us to explore what courts have actually

meant when they have referred to virtual representation, and

what if any independent significance that concept has. The

district court dismissed the claims of American Airlines pilot

Robert Tice and his eleven colleagues on the ground that they

were bound by the result reached in a different lawsuit brought

by different pilots, in which essentially the same American

Airlines policy was challenged under the Age Discrimination

in Employment Act (ADEA), 29 U.S.C. sec. 623(a)(1). (2).

The Tice plaintiffs argue that this was error, because they

were represented neither formally nor “virtually” in the earlier

case, Johnson v. American Airlines, Inc., 745 F.2d 988 (Sth

Cir. 1984), and it would thus violate due process to preclude

them from bringing their own suit. American has cross-

appealed, claiming that the district court abused its discretion

in refusing to transfer this case to the Northern District of

Texas pursuant to 28 U.S.C. sec. 1404(a).

Appendix A

At the center of this case is the way that American

Airlines has responded to the Federal Aviation Administration

(FAA) rule providing that no person may serve as a pilot if

that person has reached the age of 60. See 14 C.F.R. sec.

121.383(c); Baker v. FAA, 917 F.2d 318 (7th Cir. 1990). This

rule covers only the positions of pilot and copilot, and it thus

does not prevent former pilots from serving as flight officers

after their 60th birthday. The flight officer, third in command

of commercial passenger aircraft, monitors the aircraft’s fuel,

electrical, hydraulic and other systems before, during and after

the flight, but does not pilot the aircraft. The reason why

American does not permit people who they determine are

too old to be pilots to bid for or hold the flight officer position

is because it has a rigid “up-or-out” policy under which all

flight officers must be eligible to advance to the position of

pilot. See Murnane v. American Airlines, Inc., 667 F.2d 98,

99 (D.C. Cir. 1981). That rule permits American to use the

flight officer slot as a training ground for future pilots — a

practice that would obviously be impussible if individuals

deemed ineligible for the pilot’s job were to occupy those

positions.

American has successfully defended its policy twice

before. The first time was in the Johnson litigation mentioned

above, a case brought by 22 pilots as a group action authorized

by the ADEA, see 29 U.S.C. sec. 626(b) (incorporating 29

U.S.C.sec. 216(b) of the Fair Labor Standards Act), in which

the Fifth Circuit upheld a jury verdict that American’s up-

Or-out policy qualified as a bona fide occupational

qualification (BFOQ) for purposes of the ADEA. See also

Appendix A

Murnane, 667 F.2d 98 (upholding a related aspect of the then-

extant version of American’s up-or-out policy under which

it would not hire anyone over the age of 30 to be a flight

officer). The second time was in an action brought by the

Equal Employment Opportunity Commission (EEOC) under

the ADEA on behalf of a class of named pilots age 4U and

over who applied for and were denied employment with

American as flight officers because, under the current version

of the up-or-out policy, they would not have enough time to

progress to the rank of Captain and work there long enough

to satisfy American. See EEOC v. American Airlines, Inc.,

48 F.3d 164 (Sth Cir. 1995) (EEOC).

The Tice plaintiffs, however, did not participate in those

earlier cases, and the claims they present are somewhat

different: because they were already American pilots, they

are not complaining about a failure to be hired. Instead, they

were forced to retire when they turned 60, because the up-or-

out policy prevented them from “downbidding,” which is the

mechanism by which they might transfer back to the flight

officer level. (In the absence of American’s policy,

downbidding would probably have been easy for them,

because the flight officer position, while not affected by the

FAA’s rule that commercial pilots and copilots be under 60, |

is on the same union seniority list as that maintained for

pilots.) The Tice plaintiffs point out that American permits

or requires pilots below the age of 60 to downbid to flight

officer in a variety of situations, and, according to the Tice

plaintiffs, all other major U.S. airlines now permit their pilots

who turn 60 to downbid in this manner. The “downbidding”

claim never arose in the Murnane or EEOC litigation, and

the Tice plaintiffs stress that they were American employees,

lal

thin: natin

Appendix A

either working as pilots or in line to become pilots, at the

time those cases were pending, and thus they were unaffected

by the initial hiring rules. Even though the claims of the Tice

plaintiffs are quite similar to those of the Johnson plaintiffs,

the Tice plaintiffs stress that they had not yet been subjected

to the ban on downbidding at the time of that case. In fact,

they were actually excluded from the class eligible to join

that litigation as plaintiffs because they were too young at

the relevant time. Furthermore, their interests at the time

diverged from those of the Johnson plaintiffs (forcing out

older workers can be thought to help younger workers, on at

least a surface level), which suggests that the Johnson

plaintiffs could not have adequately represented them.

Shortly after the plaintiffs filed their complaint, American

moved for a transfer of venue to the U.S. District Court for

the Northern District of Texas under 28 U.S.C. sec. 1404(a),

arguing that most witnesses and evidence were located there,

including a flight simulator at American’s facility at the

Dallas-Fort Worth Airport (DFW) that could not be

transported out of Texas, that the principal situs of American’s

operations is in the Northern District of Texas, and that more

of the named plaintiffs resided in Texas than in Illinois.

American pointed out as well that the Johnson case, which

eventually wound up in Texas, had also begun in IIlinois and

had been transferred for many of the same reasons American

was urging here. The Tice plaintiffs responded that almost

the same number of plaintiffs were based at O’Hare Airport,

in Chicago, as at DFW, that most documents had already been

produced, and that American engaged in enough business in

Appendix A

Illinois through its extensive operations at O'Hare,

American’s largest international airport, to warrant respecting

their choice of forum.

The court denied American’s motion, stating its reasons

in open court. It found that from the standpoint of convenience

to parties and witnesses the advantages of the two districts

were relatively evenly balanced. The court also expressed

skepticism that American’s flight simulator at DFW was truly

unique, or (more importantly) that such a machine would be

useful in any event at a jury trial. When American renewed

the motion after another similar case was filed in the Northern

District of Texas, Roddie v. American Airlines, Inc., 4:96-

CV-548-A (N.D. Tex. Sept. 9, 1996), the court denied it again.

American then moved for judgment on the pleadings,

under Fed. R. Civ. P. 12(c), on the ground that the doctrine

of claim preclusion applied here. The court (Judge Ann C.

Williams taking over for Judge Brian Barnett Duff) granted

the motion. The district court found that under federal

principles of preclusion American had to show three things:

(1) a final judgment on the merits in an earlier action, (2) an

identity of the cause of action in both the earlier and the later

suit, and (3) an identity of parties or their privies in the two

suits. The first element was undisputed, and the court found

that for the second element the question in both cases was

whether American’s policy violated the ADEA. That left the

third element, which is central to this appeal. The court

recognized that the Tice plaintiffs were not formal parties to

the Johnson action and that “privity” could exist only if the

doctrine of virtual representation applied. (It also noted that

neither Murnane nor EEOC precluded the Tice plaintiffs’

lt ia a,

OP lllaas

Appendix A

claim, because of the differences between the class of people

seeking to be hired and the class of people seeking to avoid

compulsory retirement.) After noting that no express

analytical framework was available to delineate clearly when

virtual representation should or should not be applied, the

district court, guided mainly by earlier decisions from the

Northern District of Illinois, concluded that the Tice plaintiffs

had been “virtually represented” by the Johnson plaintiffs.

Ill

We agree with the district court on one basic point: the

doctrine of virtual representation is amorphous. Indeed, in

our view the term itself illustrates the harm that can be done

when a catchy phrase is coined to describe a perfectly sensible

result. The phrase takes on a life of its own, and before too

long, it starts being applied to situations far removed from

its intended and proper context. In the case of “virtual

representation,” the concept had its origin in the field of

probate proceedings, in which “it is often necessary to

establish a procedure that will bind persons unknown,

unascertained, or not yet born.” 18 Charles Alan Wright et

al., Federal Practice and Procedure sec. 4457 at 494 (1981)

(hereinafter Wright). In that narrow setting, courts would find

an identity of interests between the representatives who

participated in the litigation and other individuals whose

interests were clearly aligned with those of the actual litigants.

In the argot of res judicata law, the technical nonparties were

treated as parties to the first suit for purposes of assessing its

preclusive force.

Appendix A

Branching out from those roots, the term “virtual

representation” began to be referred to as a doctrine. As such,

its scope broadened in a line of cases from the Fifth Circuit,

most notably Aerojet-General Corp. v. Askew, 511 F.2d 710

(Sth Cir. 1975), in which the court explained the theory as

follows:

Under the federal law of res judicata, a person may

be bound by a judgment even though not a party

if one of the parties to the suit is so closely aligned

with his interests as to be his virtual representative.

Because, under the Aerojet conception, virtual representation

offers one way to bind a nonparty to the results of an earlier

case, it is apparent that this concept, or doctrine, stands at

the intersection of two important principles of civil litigation:

the right, grounded both in due process and in the property

right represented by the lawsuit chose in action, of each

individual to assert her own claim; and the need of litigants

and the judicial system alike for finality of decisions after a

full and fair airing of a matter.

The difficult question here is to decide what an idea of

“virtual” representation legitimately can add to the law of

preclusion that is not already captured by a flexible inquiry

into what used to be called “privity.” As this court noted in

In the Matter of L&S Industries, Inc., 989 F.2d 929 (7th Cir.

1993), “privity” is now seen as “a descriptive term for

designating those with a sufficiently close identity of

interests.” Id. at 932. Quoting with approval from Wright

sec. 4449, at 418-19, the court acknowledged that “the privity

label simply expresses a conclusion that preclusion is proper.”

Appendix A

Id. at 933. In a similar vein, the Second Circuit cautioned

against an overly formalistic approach to privity in Chase

Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343 (2d

Cir. 1995), observing that “[wJhether there is privity between

a party against whom claim preclusion is asserted and a party

to prior litigation is a functional inquiry in which the

formalities of legal relationships provide clues but not

solutions.” Id. at 346. See also In re Schimmels, 127 F.3d

875, 881 (9th Cir. 1997). Indeed, in Schimmels the court at

one point implied that “virtual representation” just describes

a form of privity. Id., citing Aerojet.

We think the term “virtual representation” has cast more

shadows than light on the problem to be decided. As a matter

of fact, a finding that nonparties were virtually represented

in earlier litigation has rarely been used actually to bar

litigation. As far as we can tell, no published opinion by this

court has done so, although one published order has, see

Henderson v. Stone, 930 F.3d 25 (table), 1991 WL 54855

(7th Cir. 1991), and the doctrine was of indirect relevance in

another order. Goodluck v. City of Chicago, 70 F.3d 1274

(table), 1995 WL 687637 (7th Cir. 1995). The Wright treatise

observes that “[a]ll of the cases that in fact preclude

relitigation by a nonparty have involved several factors in

addition to apparently adequate litigation by a party holding

parallel interests.” Wright, sec. 4457 (1998 Supp.) at 420.

Examples of these additional factors include control or

participation in the earlier litigation, acquiescence, deliberate

maneuvering to avoid the effects of the first case, or the close

relationship between the parties to the various cases. E.g.,

Tyus v. Schoemehl, 93 F.3d 449, 454-56 (8th Cir. 1996)

(adding that the doctrine is more appropriate in public law

10a

Appendix A

cases); NAACP v. Metropolitan Council, 125 F.3d 1171, 1175

(8th Cir. 1997), vacated, 118 S. Ct. 1162, reinstated, 144 F.3d

1168 (8th Cir. 1998); Bittinger v. Tecumseh Prod. Co., 123

F.3d 877, 881 (6th Cir. 1997); Collins v. E.1. Dupont de

Nemours & Co., 34 F.3d 172, 175-78 (3d Cir. 1994); see

also Wright, et al., 18 Federal Practice and Procedure:

Jurisdiction sec. 4457, at 502.

These factors are all merely heuristics, however, shortcuts

that courts use to determine the answer to the real (fact-

specific) question — whether there was (or should be implied

at law) the kind of link between the earlier and later plaintiffs

that justifies binding the second group to the result reached

against the first. See also McNealy v. Caterpillar, Inc., 139

F.3d 1113, 1116-17 (7th Cir. 1998) (preclusion improper

where the issues litigated in the two actions are different).

This is, of course, the same question we and other courts

have already identified as the crux of the privity inquiry. A

proper functional analysis of privity, focusing on the general

question whether the earlier parties were in some sense proper

agents for the later parties, would therefore support preclusion

in the cases that have used the lingo of virtual representation.

Conversely, if a relationship between a nonparty and an earlier

litigant does not satisfy this analysis, serious due process

problems would arise if the earlier nonparty were barred from

her own day in court.

Our conclusion is fortified by the way the Supreme Court

handled an analogous problem in Richards v. Jefferson

County, 517 U.S. 793 (1996). Like our case, Richards

involved two rounds of litigation directed at the same policy

—~ there, the validity of an occupation tax imposed by

lla

Appendix A

Jefferson County, Alabama. The first case had been brought

in Alabama state court by the acting director of finance for

the city of Birmingham and the city itself, and later had been

consolidated for trial with a separate suit brought by three

county taxpayers. Eventually, the case ended up in the

Supreme Court of Alabama, which upheld the tax. The second

case was brought (again in state court because of the Tax

Injunction Act, 28 U.S.C. sec. 1341) by a class of all

nonfederal employees subject to the county’s tax, who

claimed that the tax violated the U.S. Constitution’s due

process and equal protection clauses, as well as similar

Alabama constitutional guarantees. The Supreme Court of

Alabama agreed with the lower courts that the second suit

was barred by the adjudication in the first, because there was

a “substantial identity of parties” and the same cause of action

was presented. The U.S. Supreme Court reversed, finding

that the state supreme court’s holding violated the federal

due process rights of the second group of plaintiffs.

The Court began by reiterating principles that are of equal

relevance here:

[I]n Anglo-American jurisprudence . . . one is not

bound by a judgment in personam in a litigation

in which he is not designated as a party or to which

he has not been made a party by service of process.

This rule is part of our deep-rooted historic

tradition that everyone should have his own day

in court. As a consequence, a judgment or decree

among parties to a lawsuit resolves issues as

among them, but it does not conclude the rights

of strangers to those proceedings.

12a

Appendix A

517 U.S. at 798 (internal quotations and citations omitted).

The Court also acknowledged that formal party status is not

always necessary to bind a party, and that the term “privity”

now extends beyond traditional formal relationships such as

guardian and ward or trustee and beneficiary. Id.

Nevertheless, the Court found, the Richards plaintiffs could

not be barred by the earlier Alabama litigation. It squarely

rejected the Alabama Supreme Court’s conclusion that res

judicata could apply because the later plaintiffs were

adequately represented in the earlier suit, not because it

disagreed with the Alabama court’s assessment of the nature

of the earlier representation, but because this fact alone was

not enough to bar the second suit. The parties in the earlier

case did not provide the later plaintiffs with any notice that a

suit was pending that would conclusively resolve their legal

rights. The earlier suit was not on behalf of a class that

included the later plaintiffs, and the fact that the city

participated in the earlier case did not expand its preclusive

scope either. Id. at 801-02.

Richards therefore stands as an example both of the

functional approach that is required for privity analysis and

of the importance the Court attaches to assuring each person

his or her own day in court. From this functional standpoint,

a conclusion that the interests of the nonparties were

sufficiently aligned with the earlier litigants would be

impossible unless, among other things, the earlier litigants

would have been adequate representatives of the later

litigant(s). See id. at 800-01; Wright, et al., 18 Federal

Practice and Procedure: Jurisdiction sec. 4457, at 495, 502

(1981 & Supp. 1998); id. at 421-22 (Supp. 1998). As we noted

in Ahng v. Allsteel, Inc., 96 F.3d 1033, 1037 (7th Cir. 1996),

13a

Appendix A

a case in which we also refused to preclude later litigation

because of virtual representation, “the doctrine of ‘virtual

representation’ recognizes, in effect, a common-law kind of

class action. It applies only when there is a practical identity

of interests between the former litigant and the present one.”

(As we explain below, the fact that virtual representation

looks like a class action but avoids compliance with Rule 23

is a weakness, not a strength, of the doctrine.) In properly

certified class actions, parties who have adequate notice and

(at a minimum) an opportunity to opt out of an earlier case

may, if their interests are sufficiently aligned with one of the

earlier parties, be bound by the results of that litigation. See,

e.g., Hansberry v. Lee, 311 U.S. 32 (1940); and Phillips

Petroleum Co. v. Shutts, 472 U.S. 797 (1985). This is the

theory on which Rule 23 is based. The class action cases

allowing preclusion after adequate notice and the opportunity

to opt out recognize a form of consent that is enough to justify

binding the later parties to the earlier result (again, when the

other criteria such as identity of issue and interest are also

satisfied).

Unless there is a properly certified class action, handled

with the procedural safeguards both state and federal rules

afford, normal privity analysis must govern whether

nonparties to an earlier case can be bound to the result. There

would be little point in having Rule 23 if courts could ignore

its careful structure and create de facto class actions at will;

indeed, the Supreme Court’s recent decision in Amchem

Products, Inc. v. Windsor, 117 S.Ct. 2231 (1997),

emphasizing the importance of following Rule 23’s

procedures for settlement classes, suggests that such an

approach would be unauthorized. Instead, the appropriateness

14a

Appendix A

of preclusion will depend on how closely the two sets of

interests coincide and the role the absentees played in the

earlier litigation. At a minimum, the issue on which preclusion

is sought must be common to both cases, and the claims or

defenses of the two allegedly equivalent parties (earlier

litigant, present litigant) must be the same. See McNealy,

139 F.3d at 1116-17. In addition, unless a formal kind of

successor interest is involved (e.g., subsequent landowner,

successor corporation), there should be some indication not

only that the second party was aware that the first litigation

was going on and that the earlier litigation would resolve its

claims, cf. Shutts, 472 U.S. at 811-12 (emphasizing the need

for absentee parties to have the right at least to notice and an

opportunity to opt out of litigation), but also that the second

party either had participated or had a legal duty to participate.

Finally, of course, the due process rights of absentees that

the decisions in Hansberry, Shutts and Richards recognized

must be respected.

Turning to the case before us, we conclude that the district

court should have allowed the Tice plaintiffs to proceed with

their suit. As the EEOC pointed out in its amicus brief in this

court, the statute establishing the rights they are seeking to

vindicate makes it quite clear that these rights are individual, ~

not group-based. The ADEA provides that “[n]o employee

shall be a party plaintiff to any . . . action [under it] unless he

gives his consent in writing... .” 29 U.S.C. sec. 216(b)

(incorporated into the ADEA by 29 U.S.C. sec. 626(b)).

American does not claim that the Tice plaintiffs ever gave

their consent in writing to any of the earlier cases upon which

it relies. Second, as we noted in Woodall v. Drake Hotel,

Inc., 913 F.2d 447, 450 (7th Cir. 1990), ADEA group actions

15a

Appendix A

are “opt-in” rather than “opt-out,” as a result of the “consent

in writing” requirement, and thus differ importantly from the

class actions available under Rule 23. The additional

protections of this system compared to Rule 23 “opt-out” class

actions would be eviscerated were the Tice plaintiffs to be

viewed as having been in privity with the earlier plaintiffs.

Beyond the specifics of the ADEA, there are too many

differences between the Tice plaintiffs and the plaintiffs in

the earlier cases to make preclusion appropriate. The same

flaw exists here as we found in Ahng, namely, the

dissimilarity of the two groups of plaintiffs. The EEOC and

Murnane plaintiffs could not have represented the interests

of the Tice group, because the class of persons complaining

that they were not hired because of American’s age policies

is inherently different from the class of existing employees.

What helps the one may directly hurt the other. Cf. Rutherford

v. City of Cleveland, 137 F.3d 905, 910 & n.5 (6th Cir. 1998);

General Tel. Co. of the Northwest v. EEOC, 446 U.S. 318,

331 (1980); Hill v. Western Elec. Co., 596 F.2d 99, 102 (4th

Cir. 1979). Furthermore, at the time of the Johnson case, the

interests of American pilots over 60 (the plaintiffs there)

diverged from the interests of American employees under the

age of 60 (which the Tice plaintiffs were during the course

of that litigation), since the younger pilots might well have

wanted their elders forced out, freeing up more positions for

themselves.

Finally, the factors that have persuaded earlier courts to

find preclusion, either under the rubric of virtual

representation or otherwise, do not point in that direction here.

There is no evidence of manipulative litigation practices, and

l6a

Appendix A

we reject American’s suggestion that the Tice plaintiffs’

decision to retain the same counsel as the Johnson plaintiffs

amounts to an improper practice. Collins, 34 F.3d at 178,

Benson and Ford, Inc. v. Wanda Petroleum Co., 833 F.2d

1172, 1174 (Sth Cir. 1987); but see Tyus, 93 F.3d at 456-57.

The Tice plaintiffs did not and could not have taken part in

any of the earlier challenges to American’s policy, nor did

they acquiesce to being represented indirectly by those

plaintiffs. Aside from the fact that both groups of pilots were

employed by American, there is no evidence of any

relationship between the Tice and Johnson plaintiffs. Cf.

Bittinger, 123 F.3d at 881-82; Collins, 34 F.3d at 176-77. If

American’s position were taken to its logical conclusion, the

fact that the plaintiff in Plessy v. Ferguson, 163 U.S. 537

(1896), lost would have been enough to preclude the plaintiffs

half a century later in Brown v. Board of Education, 347 U.S.

483 (1954). In light of the Supreme Court’s continuing

solicitude for each person’s right to pursue her own case, we

cannot strain preclusion principles this much.

For similar reasons we do not agree with American that

the EEOC served as the Tice plaintiffs’ representative in

EEOC, supra. The EEOC brought that case to enforce the

rights of 57 specifically named parties, none of whom is

involved in the Tice litigation. It was therefore plainly not

acting as the actual representative of the Tice plaintiffs. See

29 U.S.C. sec. 626(c)(1); cf. EEOC v. U.S. Steel Co., 921

F.2d 489, 494-95 (3d Cir. 1990). The argument that the EEOC

was a virtual representative rests on the grounds we rejected

above, as well as on its status as a public body. Its status as a

public body does not change our earlier analysis — Richards

did not accept a similar argument with respect to the city of

17a

Appendix A

Birmingham, 517 U.S. at 802 n.6, and we think the same

result follows here. American’s final argument, that issue

preclusion should apply here even if claim preclusion does

not, fails for all the reasons the earlier argument failed,

because “[c]Jollateral estoppel ... holds only between the

same parties.” United States v. Brocksmith, 991 F.2d 1363,

1367 (7th Cir. 1993) (citations omitted); Baker v. General

Motors Corp., 118 S. Ct. 657, 666 n.11 (1998).

Because we are reversing the district court’s decision that

the Tice plaintiffs’ suit is precluded by the Johnson litigation

(or other earlier suits), we must also reach American’s cross-

appeal challenging the district court’s denial of its motion to

change venue. American’s problem is, in a phrase, the

standard of review. “We give great deference to a district

court’s rulings on motions to transfer venue. Indeed, this court

can only reverse a district court’s determinations in this regard

if we find a ‘clear abuse of discretion.’ In re Chicago,

Milwaukee, St. Paul & Pacific R.R. Co., 974 F.2d 775, 789

(7th Cir. 1992), quoting Cote v. Wadel, 796 F.2d 981, 985

(7th Cir. 1986). Even if we agreed with American that the

Northern District of Texas would be a very convenient forum,

that is not enough to support a finding that the district court

abused its discretion in concluding that the Northern District

of Illinois is also a convenient forum. In opposition to the

factors to which American pointed, the district court gave

some weight (as it was entitled to do) to the plaintiffs’ choice

of forum, to the relative ease with which American (an airline

company) could transport its employees between Texas and

Illinois, to the questionable relevance and need at trial for

18a

Appendix A

the Dallas flight simulator, and to the fact that essentially

the same number of plaintiffs were employed at O’ Hare as at

DFW. Under the circumstances, we do not find reversible

error in the district court’s decision.

We therefore Reverse the district court’s judgment for

American and Remand for further proceedings consistent with

this opinion. We Affirm the district court’s ruling denying

American's motion to transfer the case to the Northern District

of Texas.

19a

APPENDIX B — MEMORANDUM OPINION AND

ORDER OF THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION DATED MARCH 31, 1997

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Case No. 95 C 6890

ROBERT H. TICE, et al.,

Plaintiff,

AMERICAN AIRLINES, INC.,

Defendant.

MEMORANDUM OPINION AND ORDER

On November 27, 1995, plaintiffs Robert H. Tice and

other former American Airline pilots (“plaintiffs”), filed their

complaint against defendant, American Airlines, Inc.

(“American”) alleging that American violated the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C.

§§ 621 et seq. (1994). The matter is before the court on

American’s Motion for Judgment on the Pleadings pursuant

to Federal Rule of Civil Procedure 12(c). For reasons set forth

below, the court grants American’s motion.

20a

Appendix B

Background

I. Current Case

The Federal Aviation Administration’s (“FAA”) “Age

60 Rule”, 14 C.F.R. § 121.383(c), provides that no person

may serve as a pilot if that person has reached his/her sixtieth

birthday. The “Age 60 Rule”, however, does not prevent

former pilots from serving as flight officers after their sixtieth

birthdays.' (Complaint 4 10.) Plaintiffs, twelve retired

American captains, wanted to continue their careers after their

sixtieth birthdays in the flight officer (flight engineer)

position. (Complaint 4 11; Pls.” Reply to Def.’s Mot. at 1.)

American, however, refused to downbid plaintiffs to the flight

officer position, thus forcing plaintiffs to retire.’ (Complaint

4 12-13.)

Plaintiffs claim American’s refusal to downbid them to

the flight officer position was because of age and, thus,

1. American’s aircraft operating crew mainly consists of a

captain [pilot], copilot, and flight officer. The captain 1s in command

of all aspects of the aircraft and its crew. The copilot, second in

command, assists the captain in flying the aircraft. The flight officer

monitors the aircraft’s fuel, electrical, hydraulic and other systems

before, during, and after the flight but does not pilot the aircraft.

Johnson v. American Airlines, 745 F.2d 988, 990 (Sth Cir. 1984),

cert. denied, 472 U.S. 1027 (1985); See also Equal Employment

Opportunity Commission (“EEOC”) v. American Airlines, 48 F.3d.

164, 165 (Sth Cir. 1995).

2. A “downbid” is a request by an employee to move from a

position of seniority to a lesser position.

2la

Appendix B

violates the ADEA. (Complaint 4 19.) In response, American

moves this court for judgment on the pleadings. In Johnson

v. American Airlines, 745 F.2d 988 (Sth Cir. 1984), cert.

denied, 472 U.S. 1027 (1985), the Fifth Circuit allowed

American’s policy of hiring only future captains as flight

officers to stand. Consequently, American argues that, in light

of Johnson, the doctrine of res judicata [claim preclusion] or

collateral estoppel [issue preclusion] bars plaintiffs’ claim.’

Il. Earlier Suit

In Johnson, twenty-two ex-captains for American,

represented by plaintiffs’ attorney, sued American for

violating the ADEA. See id. at 990-991. Their action arose

at the intersection of the FAA’s “Age 60 Rule” and

American’s up-or-out policy. See id. at 991. The plaintiffs,

Americar flight crew members, desired employment as flight

officers after their sixtieth birthdays since they could no

longer serve as pilots under the “Aye 60 Rule”. /d. at 991.

American’s up-or-out policy, however, requires that all flight

officers be capable of advancing to pilot positions. /d.; See

also EEOC, 48 F.3d at 165 (citation omitted). Therefore,

pilots over the age of sixty can not downbid to flight officer

because American requires that all flight officers be able to

advance to the pilot position. In other words, a sixty year old

flight officer can not advance to the pilot position under the

3. American also argues that the D.C. and Fifth Circuit's

decisions in Murnane et al. v. American Airlines, Inc., 482 F. Supp.

135 (D.D.C. 1979), aff'd, 667 F.2d 98 (D.C. Cir. 1981), cert. denied,

456 U.S. 915 (1982) and EEOC v. American Airlines, Inc., 48 F.3d

164 (Sth Cir. 1995), respectively, preclude plaintiffs’ claim. For the

reasons set forth below, however, the court disagrees.

Appendix B

Age 60 Rule and American's up-or-out policy. /d.; See also

EEOC, 48 F.3d at 165 (citation omitted). Based on this policy,

American, allegedly in violation of the ADEA, refused to

downbid the sixty-year-old, ex-captains to the flight officer

position. See id.

In response, American claimed its up-or-out policy was

a bona fide occupational qualification (“BFOQ”).* See id. At

trial, American presented evidence of the various effects of

employing sixty-year-old, ex-captains as flight officers when

they could no longer advance to the captain position because

of the “Age 60 rule”. See id. The jury found in favor of

American, concluding that American’s policy was in fact a

BFOQ and, therefore, American's actions did not violate the

ADEA. See id. The Johnson plaintiffs appealed, arguing that

the trial court erred in instructing the jury.” See id. The Fifth

Circuit, however, held that the district court did not commit

reversible error and affirmed the jury’s verdict. See id. at 995

(“We conclude that American’s reasons for its policy qualify

as a BFOQ defense.”).

4. A BFOQ 1s a qualification for employment that is “reasonably

necessary to the normal operation of the business,” even though it

may result in what would otherwise constitute prohibited

discrimination. 29 U.S.C. § 623(f\(1). The ADEA allows an employer

to discriminate on the basis of age if the employee's age 1s a BFOQ.

See Johnson, 745 F.2d at 991.

5. The Johnson plaintiffs presented various other arguments to

the Fifth Circuit, however, they are not relevant to this court's

discussion. See Johnson, 745 F.2d 988.

23a

Appendix B

Motion for Judgment on the Pleadings

The court reviews a Rule 12(c) motion for judgment on

the pleadings under the same standard as a Rule 12(b)(6)

motion to dismiss. See Frey v. Bank One, 91 F.3d 45, 46 (7th

Cir. 1996), cert. denied, 117 S.Ct. 954 (1997); Alexander vy.

City of Chicago, 994 F.2d 333, 335 (7th Cir. 1993); Thomason

v. Nachtrieb, 888 F.2d 1202, 1204 (7th Cir. 1989). Thus, the

court accepts as true all well-pleaded factual allegations and

draws all reasonable inferences in favor of the non-moving

party. See United States v. Wood, 925 F.2d 1580, 1581 (7th

Cir. 1991) (citation omitted); See also Zinermon v. Burch.

494 U.S. 113, 118 (1990) (motion to dismiss); Colfax Corp.

v. Illinois State Toll Highway Auth., 79 F.3d 631, 632 (7th

Cir. 1996) (motion to dismiss) (citation omitted). The court

will not grant the motion unless “it appears beyond doubt

that the plaintiff cannot prove any facts that would support

his claim for relief.” Frey, 91 F.3d at 46; Thomason, 888

F.2d at 1204.

The court, however, need not strain to find inferences

favorable to plaintiffs which are not apparent on the face of

the complaint; on the other hand, it will resolve ambiguities

in plaintiffs favor. See Early v. Bankers Life and Casualty

Co., 959 F.2d 75, 79 (7th Cir. 1992) (motion to dismiss);

Coates v. Illinois State Bd. of Educ., 559 F.2d 445, 447 (7th

Cir. 1977) (motion to dismiss). Additionally, the court “may

not look beyond the pleadings, and all uncontested allegations

to which the parties had an opportunity to respond are taken

as true.’ Alexander, 994 F.2d at 335. The court, however,

6. Plaintiffs argue that American's motion for judgment on the

pleadings does not comply with Fed. R. Civ. P. 12(c) and must be

(Cont'd)

24a

Appendix B

“may take into consideration documents incorporated by

reference to the pleadings.” Wood, 925 F.2d at 1582 (citation

omitted). Lastly, the court may take judicial notice of matters

of public record. See Henson v. CSC Credit Servs., 29 F.3d

280, 284 (7th Cir. 1994); Wood, 925 F.2d at 1582.

Analysis

The main issue before the court is whether the doctrine

of res judicata’ bars plaintiffs from litigating this ADEA suit.

In this ADEA suit, plaintiffs seek appraisal of their rights

regarding American’s refusal to downbid sixty-year-old

captains to the flight officer position. If Johnson precludes

plaintiffs’ claim, however, then the court will not reappraise

plaintiffs’ rights. Because Johnson, the alleged preclusive

action, was a federal court case, federal principles determine

what preclusive effects, if any, it has on the present plaintiffs’

action. See EEOC v. Harris Chernin, Inc., 10 F.3d 1286, 1289

(Cont'd)

demied on its face. Plaintiffs support this argument by stating that

American's success on this motion depends upon the court accepting

certain representations that American failed to introduce in its answer.

The court, however, disagrees with this argument. Rather, as

discussed below, the court is rendering its decision based solely on

allegations in plaintiffs’ complaint.

7. Some courts and commentators use the term “res judicata”

to encompass both forms of preclusion — claim preclusion and issue

preclusion. See Allen v. McCurry, 449 U.S. 90, 94 n.5 (1980). More

specifically, the Restatement of Judgments refers to “claim

preclusion” as res judicata and “issue preclusion” as collateral

estoppel. See id. (citing Restatement (Second) of Judgments § 74

(Tent. Draft No. 3, Apr. 15, 1976)).

25a

Appendix B

n.4 (7th Cir. 1993) (citing Barnett v. Stern, 909 F.2d 973,

977 (7th Cir. 1990)) (“[w]here the earlier action is brought

in federal court, the federal rules of res judicata apply.”); Jn

re Energy Coop., Inc., 814 F.2d 1226, 1230 (7th Cir.), cert.

denied, 484 U.S. 928 (1987); accord Porn vy. National Grange

Mut. Ins. Co., 93 F.3d 31, 33-34 (1st Cir. 1996). Furthermore,

under the doctrine of res judicata or collateral estoppel, district

judges treat decisions by other district judges and other

circuits as controlling. See Colby v. J.C. Penney Co., 811

F.2d 1119, 1124 (7th Cir. 1986) (explaining that different

outcomes in different courts may place a defendant under

inconsistent obligations).

In a classic discussion of the federal principles of issue

and claim preclusion, the Supreme Court explained:

A fundamental precept of common-law

adjudication, embodied in the related doctrines of

collateral estoppel [or issue preclusion] and res

judicata [or claim preclusion], is that a ‘right,

question, or fact distinctly put in issue and

directly determined by a court of competent

jurisdiction . . . cannot be disputed in a subsequent

suit between the same parties or their

privies. .. ."Under collateral estoppel [or issue

preclusion], once an issue is actually and

necessarily determined by a court of competent

jurisdiction, that determination is conclusive in

subsequent suits based on a different cause of

action involving a party to the prior litigation.

Montana v. United States, 440 U.S. 147, 153 (1979) (citations

omitted); see Allen v. McCurry, 449 U.S. 90, 94 n.5 (1980)

26a

Appendix B

(clarifying terminology). The Supreme Court went on to

observe that

Application of [res judicata and collateral

estoppel] is centra! to the purpose for which civil

courts have been established, the conclusive

resolution of disputes within their jurisdiction. To

preclude parties from contesting matters that they

have had a full and fair opportunity to litigate

protects their adversaries from the expense and

vexation attending multiple lawsuits, conserves

judicial resources, and fosters reliance on judicial

action by minimizing the possibility of

inconsistent decisions.

Montana, 440 U.S. at 153 (citations omitted).

Claim preclusion requires that two suits be linked by the

same cause of action. If this link exists, claim preclusion

operates as a bar to all issues previously litigated or

potentially litigated in the initial litigation. Parklane Hosiery

Co. v. Shore, 439 U.S. 322, 326 n.5 (1979). Res judicata or

claim preclusion applies only if there exists: (1) a final

judgment on the merits in an earlier action; (2) an identity of

the cause of action in both the earlier and later suit; and (3)

an identity of parties or their privies in the two suits.

Brzostowski v. Laidlaw Waste Systems, Inc., 49 F.3d 337,

338 (7th Cir. 1995) (citation omitted); Hartke v. Chicago

Board of Election Commissioners, 651 F. Supp. 86, 88 (N.D.

Ill. 1986).

Issue preclusion, on the other hand, requires not that the

suits arise from the same cause of action, but that they raise

27a

Appendix B

the same issue(s). A finding of issue preclusion, in contrast

to claim preclusion, operates to bar merely the previously

litigated issue, and not the entire claim. “Once a court has

decided an issue of fact or law necessary to its judgment,

that decision may preclude relitigation of the issue in a later

suit on a different cause of action involving a party to the

first case.” Allen, 449 U.S. at 94. Collateral estoppel or issue

preclusion does not apply unless: (1) the issue at stake is

identical to an issue in the prior litigation; (2) the issue in the

prior litigation was actually litigated; (3) the determination

of the issue in the prior litigation was essential to final

judgment; and (4) the party precluded from relitigating the

issue was represented in the prior litigation. La Preferida,

Inc. v. Cerveceria Modelo, S.A. de C.V., 914 F.2d 900, 906

(7th Cir. 1990) (citing Klingman vy. Levinson, 831 F.2d 1292,

1295 (7th Cir. 1987); Gray v. Lacke, 885 F.2d 399, 406 (7th

Cir. 1989), cert. denied, 494 U.S. 1029 (1990).

Before barring an action, both claim and issue preclusion

require the court to find an “identity of parties” or privities.

This requirement guarantees that the litigants have an

adequate opportunity to be heard. Rush v. Superintendent of

Police, 93 C 1675, 1994 WL 114847 *4 (N.D. IIL, Apr. 4,

1994). “Concepts summarized by the term privity are looked

to as a means of determining whether the interests of the party

against whom claim preclusion is asserted were represented

in the prior litigation.” Chase Manhattan Bank, N.A. vy.

Celotex Corp., 56 F.3d 343, 346 (2d Cir. 1995). Although

privity is an elusive concept, L & S Industries, Inc. v.

Williams, 989 F.2d 929, 932 (7th Cir. 1993), it generally

denotes a relationship that is sufficiently close to justify issue

or claim preclusion, First Options of Chicago, Inc. v. Kaplan,

28a

Appendix B

913 F. Supp. 377, 383 (E.D. Pa 1996). “Privity between

parties is established where those parties’ interests are so

closely aligned that they represent the same legal interests.”

In re Chicago Police Officer Promotions, No. 91 C 668, 1991

WL 134218, *5 (N.D. Ill. July 16, 1991) (quoting Secretary

of Labor y. Fitzsimmons, 805 F.2d 682, 688 & n.9 (7th Cir.

1986)). Thus, nonparties may satisfy the “identity of parties”

requirement and, if so, the prior action will preclude them.

See People Who Care v. Rockford Bd. of Educ., 68 F 3d 172,

177 (7th Cir. 1995) (“[T]he preclusive effects of judgments

have been expanded to apply to nonparties, and res judicata

can sometimes operate to bar the maintenance of an action

by persons who were ... not parties to the initial action.”

(citations omitted)).

The doctrine of virtual representation enables courts to

find privity between parties.* Even if a person was not named

in the prior judgment, he may be bound if one of the parties

8. Plaintiffs argue that “it is far from clear whether (the doctrine

of virtual representation] necessarily applies . . . in this circuit.” (Pls.’

Resp. at 10.) To the contrary, however, in EEOC v. Harris Chernin,

inc., 767 F. Supp. 919 (N.D. Ill. 1991), an ADEA action, the district

court found that privity existed between the plainuff and the EEOC

via the doctrine of virtual representation. Furthermore, on appeal,

without using the term “virtual representation,” the Seventh Circuit

court of appeals affirmed the lower court's findings on virtual

representation. See EEOC v. Harris Chernin, Inc., 10 F.3d 1286,

1291 (7th Cir. 1993). Additionally, a number of courts from the

Northern District of Illinois apply this doctrine. See Jn re Chicago

Police Officer Promotions, No. 91 C 668, 1991 WL 134218 (N.D.

Ill., July 16, 1691); Maguire v. Selke, No. 90 C 21, 1990 WL 70451

(N.D. Ill, May 4, 1990); Hartke v. Chicago Bd. of Election

Commissioners, 651 F. Supp. 86 (N.D. Ill. 1986).

29a

Appendix B

to the suit was so “closely aligned with his interests as to be

his virtual representative.” /d. (citation omitted); See also L

& S Industries, Inc., 989 F.2d 929 (citation omitted). “[I]f he

is so closely aligned with. . . the parties . . ., then his concerns

have certainly received adequate representation.” See People

Who Care, 68 F.3d at 177. The party in the original action,

however, “must have had ‘every reason to prosecute or defend

the case as vigorously’ as the party to the subsequent suit.”

Rush, 1994 WL 114847, *4 (citing Petit v. City of Chicago,

766 F. Supp. 607 (N.D. Ill. 1991)). Virtual representation

may be used to determine whether two parties are in privity

for purposes of either issue or claim preclusion.

In this case the court can apply either res judicata [claim

preclusion] or collateral estoppel [issue preclusion], because

the parties have combined these two concepts. The court will

only address the case for preclusion by res judicata [claim

preclusion] — the more preclusive of the two doctrines. Claim

preclusion’s standard is more stringent because it bars not

only the previously litigated issues, but all claims based on

the prior cause of action. See Montana, 440 U.S. at 153; See

also Harris Chernin, Inc., 10 F.3d at 1290 n.5 (quoting in

dicta a Seventh Circuit case which held that a “relaxed

concept of finality is acceptable for issue preclusion, and

clearly implie[d] that it is not acceptable for claim

preclusion.” (citation omitted)). Furthermore, it is clear that

the issue involved in this case, whether American violated

the ADEA, is identical to the issue addressed in Johnson.

Collateral estoppel’s requirement of identical issues is its only

departure from the res judicata standard. Thus, if the other

two res judicata elements are established, issue preclusion

will also apply to this case. See also Hartke, 651 F. Supp. at

88.

30a

Appendix B

1. Final Judgment on the Merits

The final judgment in the Johnson litigation satisfies the

first requirement of res judicata. “The ‘merits’ of an

adjudication pertains to the substantive rights of the parties.”

Hartke, 651 F. Supp. at 88. Johnson was a jury trial in which

twenty ex-captains seeking to downbid to the flight officer

position sued American for violating the ADEA. Johnson.

745 F.2d at 990. The jury in Johnson returned a verdict for

American upon finding that it had a valid ADEA defense to

the plaintiffs’ claim. See id. Subsequently, the plaintiffs

appealed and the Fifth Circuit, affirming the lower court, held

that “American's reasons for its policy [of not employing

pilots in the flight officer position after their sixtieth

birthdays] qualify as a BFOQ defense.” /d. at 993: See also

Hartke, 651 F. Supp. at 89 (“The affirmance of that decision

... fenders that decision final as well on the merits.”) Thus.

the substantive rights of the Johnson plaintiffs under the

ADEA were addressed and finally determined.

Il. Identity of the Causes of Action

The Johnson litigation and the ADEA claim presently

before the court also satisfy the second requirement of

identical causes of action. A cause of action consists of a

single core of operative facts which gives the plaintiff a right

to seek redress for the wrong concerned. Brzostowski, 49 F.3d

at 339 (citing Colonial Penn Life Ins. Co. vy. Hallmark Ins

Admin., Inc., 31 F.3d 445, 447 (7th Cir. 1994)). “Two claims

are one for the purposes of res judicata if they are based on

the same, or nearly the same, factual allegations.” /d.; See

also People Who Care, 68 F.3d at 177-78 (the “cause of action

3la

Appendix B

must be based on the same facts and raise the same issues as

the cause of action in [the prior suit].”) For instance, in

Brzostowski, the Seventh Circuit. affirming the district court,

held that the firing of the plaintiff gave rise to both suits and

constituted the nucleus of factual allegations, because the

resolution of both complaints revolved around whether the

defendant complied with its legal obligations. Brzostowski.

49 F.3d at 339.

Additionally, when the court determines whether two

causes of action are identical for res judicata purposes, the

fact that the plaintiffs’ legal theories in each case are

formulated somewhat differently does not detract from the

identity of the causes of action. Hartke, 651 F. Supp. at 89,

“If the same facts are essential to the maintenance of both

proceedings or the same evidence is needed to sustain both.

then there is identity between allegedly different causes of

action....” Jd. See also Maguire, 1990 WL 70451, *3

(“[C]ourts . . . must look beyond the legal theory expressed

in the complaint and focus on the facts surrounding the claim

and the injury inflicted upon the plaintiff.”’)

The court finds that plaintiffs’ ADEA claim clearly arises

out of the same core of Operative facts and is based on the

same factual allegations as the Johnson claim. First, both

claims arose out of American’s policy of denying their

sixty-year-old captains’ requests to downbid to the flight

officer position. This so-called “forced retirement” is the

nucleus of factual allegations giving rise to both claims.

Additionally, the legal elements of the two claims are

identical. The resolution of both complaints necessarily

involves deciding whether American’s actions violated the

32a

Appendix B

ADEA. In other words, both cases ask whether American

complied with its legal obligations arising from the ADEA

when it refused its sixty-year-old pilots’ requests. See also

Maguire, 1990 WL 70451, *3 (identity of causes of action

found where plaintiffs attempted to challenge, in federal court,

the same statute — the promulgation of which was the core

of operative fact — on the identical legal theories as plaintiffs

in a prior action); Hartke, 651 F. Supp. at 89 (identity of

causes of action found where the single core of operative

fact was the election board’s refusal to put a referendum on

the ballot — although the plaintiffs’ legal theories differed).

Plaintiffs unpersuasively argue that the two cases do not

encompass the same cause of action. (Pls.’ Resp. at 9.)

Plaintiffs focus on the Fifth Circuit's holding in Johnson to

support their argument, rather than focusing on the “nucleus

of factual allegations giving rise to both suits.” See

Brzostowski, 49 F.3d at 339; (Pls. Resp. at 9.) However, the

prior court’s holding, the legal conclusion it rendered after

considering the cause of action and plaintiffs’ claim, was not

the cause of action. Rather, the cause of action was the event

that propelled the plaintiffs into court. The court determines

the cause of action by looking to and comparing the facts

giving rise to the claims, not the prior holding. See

Brzostowski, 49 F.3d at 339. Here, the cause of action that

propelled the plaintiffs’ into court, as stated above, was

American’s refusal to downbid them, which was identical to

the cause of action in Johnson. Thus, plaintiffs’ argument is

meritless.

33a

Appendix B

lil. Identity of the Parties or Privies

Finally, there must be an identity of parties or privies in

the two actions for the court to invoke the doctrine of res

judicata.’ Whether plaintiffs were adequately represented in

the Johnson action presents a more difficult question.

Plaintiffs were not formal parties to the Johnson action. Thus,

privity must exist via virtual representation. The cases

applying virtual representation, however, do not set forth any

express analytical framework. Maguire v. Selke, No. 90

C 21, 1990 WL 70451, *4(N.D. Ill, May 7, 1990). Rather,

this district's prior decisions in this area guide the court.

In Jn re Chicago Police Officer Promotions, No. 91

C 668, 1991 WL 134218(N.D. Ill. July, 16, 1991), the district

court for the Northern District of Illinois, applying the

doctrine of virtual representation, found “sufficient privity

... such that the doctrine of res judicata may be considered.”

This case involved the question of whether 200 plaintiffs were

in privity with the plaintiffs of a potentially preclusive, prior

suit. See id. at *5. Applying the doctrine of virtual

representation, the court, persuaded by a number of factors,

9. American argues that, in addition to Johnson, Murnane, 482

F. Supp 135, and EEOC, 48 F.3d 164, preclude plaintiffs’ claim.

The court, however, disagrees. The plaintiffs in those cases were

pilots over age 40 who applied for and were denied employment as

third-seat flight officers. See EEOC, 48 F.3d 164, Murnane, 482

F. Supp. 135. In comparison, the plaintiffs in Johnson and the case

at bar were former American pilots over sixty who wished to downbid

to the position of flight officer — American had already employed

them. This distinction is significant, and, as a result, the third res

judicata element is not met with regard to these two cases.

34a

Appendix B

found an identity of privity between all of the plaintiffs. See

id. at *6, First, the court found that the legal and factual issues

in the case at bar were identical to the prior case. See id.

Next, the court found the present plaintiffs were adequately

represented in the prior litigation, due to the fact that they

had retained the same counsel as the prior plaintiffs. See id.

Additionally, the court noted that the present plaintiffs

maneuvered to try and avoid the prior litigations preclusive

effects. See id. The court also found that all of the plaintiffs’

legal interests were congruent. See id; See also Maguire, 1990

WL 70451, at *5 (two sets of plaintiffs who were in the same

occupation and sought to challenge the application of the same

Statutory regulation to their occupation were in privity via

virtual representation); Rush, 1994 WL 114847, at * 4:

Hartke, 651 F. Supp. at 86.

Applying the virtual representation doctrine, the court

finds that the legal and factual issues in this case are identical

to those litigated in Johnson. Additionally, as in Jn re Chicago

Police Officer Promotions, the same attorney representing

the present plaintiffs, represented the Johnson plaintiffs.

Consequently, the attorney had “every reason to prosecute

or defend the [prior] case as vigorously” as in the present

party's suit. Rush, 1994 WL 114847, *4 (citing Perit v. City

of Chicago, 766 F. Supp. 607 (N.D. Ill. 1991)). Therefore.

counsel adequately protected the interests of plaintiffs by

vigorously prosecuting the Johnson plaintiffs’ interests.

Furthermore, plaintiffs maneuvered to avoid the

preclusive effects of Johnson by arguing that “[p]laintiffs’

complaint in this case does not address defendant's alleged

‘future captain’ policy but, instead, opposes defendant's

35a

Appendix B

refusal to employ them after their sixtieth birthday.” (Pls.’

Resp. at 8.) Plaintiffs’ attempt to differentiate the policies at

issue, however, is unpersuasive because denying pilots

employment as flight officers after their sixtieth birthday is

tied to American's “future captain” (or “up-and-out”) policy.

Also, plaintiffs’ legal interests are congruent with the Johnson

plaintiffs; plaintiffs, like the Johnson plaintiffs, want the court

to conclude that American’s actions violated the ADEA. The

court’s finding of privity, additionally, comports with the

policies of res judicata: to preclude parties from contesting a

matter that they had a full and fair opportunity to litigate.

Montana, 440 U.S. at 153. Lastly, had the Johnson plaintiffs

succeeded on the merits, plaintiffs would have benefitted,

American could not refuse retiring captains’ downbid

requests, and this matter would not be before the court.

Therefore, the court, drawing all inferences in favor of

plaintiffs, concludes that plaintiffs were virtually represented

by the Johnson plaintiffs. Plaintiffs in both cases are retired

American Airline captains who, at different points in time,

American refused to downbid. Thus, plaintiffs are in privity

with the Johnson plaintiffs. See, e.g., Maguire, 1990 WL

70451, at *5 (privity found between plaintiffs in both cases

who practiced naprapathy without a degree, and were

prohibited from plying their trade by the enactment of a

statute); Hartke, 651 F. Supp. at 91 (privity found between

plaintiffs, despite the fact that the plaintiffs had no input or

connection to prior litigation, where they had the same cause

of action and sought the same remedy).

Consequently, plaintiffs suit is identical to the Johnson

suit with regard to the parties and cause of action, thus their

36a

Appendix B

entire claim is precluded. “A fundamental precept of

common-law adjudication ... is that a ‘night, question, or

fact distinctly put in issue and directly determined by a court

of competent jurisdiction ... cannot be disputed in a

subsequent suit between the same parties or their

privies....’ ” Montana, 440 U.S. at 153 (1979) (citations

omitted). The right put in issue by the Johnson plaintiffs,

and directly determined at both the trial and appellate levels,

cannot be relitigated. Thus, the Fifth Circuit’s holding in

Johnson that American's refusal to downbid sixty-year-old,

retiring pilots is a bona fide occupational qualification

excepted from the ADEA’s requirements disposes of the claim

before this court.

In sum, plaintiffs fail to state a claim for which relief

can be granted. The court reaches this decision considering

only the facts alleged in the complaint. After the examination

of the facts in a light most favorable to plaintiffs, the court

views the claim in he complaint as indistinguishable from

the claim fully litigated in Johnson. Thus, the doctrine of res

judicata applies and judgment on the pleadings in favor of

American is appropriate. Furthermore, the court’s decision

avoids “the expense and vexation attending multiple lawsuits,

conserves judicial resources, and fosters reliance on judicial

action by minimizing the possibility of inconsistent

decisions.” Montana, 440 U.S. at 153-154. In light of the

reasons stated above, the court grants American's motion for

judgment on the pleadings.

37a

Appendix B

Conclusion

For reasons set forth above, the court grants American's

motion for judgment on the pleadings.

ENTER: |

s/ Ann Claire Williams

Ann Claire Williams, Judge

United States District Court

Dated: MAR 31 1997

38a

APPENDIX C — JUDGMENT OF THE UNITED

STATES DISTRICT COURT FOR THE NORTHERN

DISTRICT OF ILLINOIS, EASTERN DIVISION

DATED MARCH 31, 1997

United States District Court

NORTHERN DISTRICT OF ILLINOIS

Eastern Division

CASE NUMBER: 95 C 6890

ROBERT H. TICE, et al.,

AMERICAN AIRLINES, INC.

JUDGMENT IN A CIVIL CASE

Fs,

&) Decision by Court. This action came to a hearing before

the Court. The issues have been heard and a decision has

been rendered.

IT IS ORDERED AND ADJUDGED that pursuant to the

court's memorandum opinion and order entered March 31,

1997, the court grants American’s motion for judgment on

the pleadings; that judgment on the pleadings is entered in

favor of defendant and against plaintiffs; that plaintiffs take

nothing and this case is dismissed on the merits.

March 31,1997 Michael W. Dobbins

Date Clerk

s/ [illegible]

(By) Deputy Clerk

39a

APPENDIX D — MINUTE ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE NORTHERN

DISTRICT OF ILLINOIS DATED MARCH 31, 1997

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

Michael W. Dobbins Office of the Clerk

CLERK

Terence G. Connor

Morgan, Lewis & Bockius

5300 First Union Financial Center

200 South Biscayne Boulevard

Miami, FL 33131-2339

Case Number: 1:95-cv-06890

Title: Tice v. Amer AL Inc

Assigned Judge: Honorable Ann C. Williams

MINUTE ORDER of 3/31/97 by Hon. Ann C. Williams :

Pursuant to memorandum opinion and order, the court grants

American's motion for judgment on the pleadings [49-1]

terminating case Mailed notice

This docket entry was made by the Clerk on March 31, 1997

40a

Appendix D

ATTENTION: This notice is being sent pursuant to Rule

77(d) of the Federal Rules of Civil Procedure

or Rule 49(c) of the Federal Rules of

Criminal Procedure. It was generated by

ICMS, the automated docketing system used

to maintain the civil and criminal dockets of

this District. If a minute order or other

document is enclosed, please refer to it for

additional information.

4la

APPENDIX E — MINUTE ORDER FORM

DATED MARCH 31, 1997

UNITED STATES DISTRICT COURT,

NORTHERN DISTRICT OF ILLINOIS

Name of Assigned Judge

or Magistrate Judge ANN C. WILLIAMS

* . om

Case Number 95 C6890 Date MARCH 31. 1997

Case Title TICE v. AMERICAN AIRLINES

* * ~

DOCKET ENTRY:

(10) & [Other docket entry] Pursuant to memorandum

opinion and order, the court grants American’s motion for

judgment on the pleadings.

(11) & [For further detail see

* * *

&) order attached to the original minute order form. ]

* * *

42a

Appendix E

Docketing to mail notices.

& Mail AO 450 form

s/ DJ courtroom

deputy

initials

43a

APPENDIX F — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

DENYING PETITION FOR REHEARING

DATED JANUARY 26, 1999

United States Court of Appeals

for the Seventh Circuit

Chicago, Illinois 60604

Decided January 26, 1999

Before

Hon. JOHN L. COFFEY, Circuit Judge

Hon. JOEL M. FLAUM, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

Nos. 97-1888 & 97-2027

ROBERT H. TICE, et al.,

Plaintiffs-Appellants,

Cross-Appellees,

AMERICAN AIRLINES, INC.,

Defendant-Appellee,

Cross-Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

No. 95 C 6890

Ann Claire Williams, Judge.

44a

Appendix F

ORDER

On consideration of the petition for rehearing with

suggestion for rehearing en banc filed by counsel for the

Defendant-Appellee/Cross-Appellant American Airlines, Inc.

on December 31, 1998, all members of the original panel

have voted to DENY the petition for rehearing. No judge in

regular active service has requested a vote on the suggestion

for rehearing en banc. Accordingly,

IT IS ORDERED that the petition for rehearing with

suggestion for rehearing en banc be, and the same is hereby,

DENIED.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.