Independent Federation of Flight Attendants v. Zipes Reply Brief for Petitioner
Public Court Documents
April 18, 1989

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Brief Collection, LDF Court Filings. Independent Federation of Flight Attendants v. Zipes Reply Brief for Petitioner, 1989. ca0206c8-b89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/f77ff893-9b12-4f4c-a065-842bd224eb03/independent-federation-of-flight-attendants-v-zipes-reply-brief-for-petitioner. Accessed April 19, 2025.
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o o No.8^608 In T he g>upmtu> (ta r t of % luitrfii States October Term, 1988 Independent Federation of Flight Attendants, Petitioner,v. Anne B. Zipes, et al, Respondents. On Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit REPLY BRIEF FOR PETITIONER Steven A. F ehr * W illiam A. J olley J anae L. Schaeffer J olley, Walsh , Hager & Gordon 204 West Linwood Boulevard Kansas City, Missouri 64111 (816) 561-3755 Attorneys for Petitioner Independent Federation * Counsel of Record of Flight Attendants W I L A O N - E p i s P R I N T I N O C o . , I n c . - 7 8 9 - 0 0 8 6 - W A S H I N G T O N , O . C . 2 0 0 0 1 .> eo o o No.8^608 In T he g>upmtu> (ta r t of % luitrfii States October Term, 1988 Independent Federation of Flight Attendants, Petitioner,v. Anne B. Zipes, et al, Respondents. On Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit REPLY BRIEF FOR PETITIONER Steven A. F ehr * W illiam A. J olley J anae L. Schaeffer J olley, Walsh , Hager & Gordon 204 West Linwood Boulevard Kansas City, Missouri 64111 (816) 561-3755 Attorneys for Petitioner Independent Federation * Counsel of Record of Flight Attendants W I L A O N - E p i s P R I N T I N O C o . , I n c . - 7 8 9 - 0 0 8 6 - W A S H I N G T O N , O . C . 2 0 0 0 1 .> eo TABLE OF CONTENTS Page I. IFFA DID NOT ACT LIKE A DEFENDANT, DID NOT VIOLATE THE LAW LIKE A DEFENDANT, IS NOT A FUNCTIONAL DEFENDANT, AND SHOULD NOT BE TREATED AS A WRONGDOER DEFEND ANT FOR ATTORNEY’S FEES PURPOSES- 1 II. IF ALLOWED TO STAND, THE RESULT BE LOW WOULD HAVE A SEVERE CHILLING EFFECT UPON THE ADVERSARY JUDI CIAL PROCESS TO WHICH CONGRESS EN TRUSTED THE ULTIMATE EFFECTUA TION OF THE GOALS OF TITLE V II----------- 7 III. NOTHING IN THE LANGUAGE OF § 706 (k) REQUIRES THE RESULT BELOW................... 9 CONCLUSION....... - .......................................................—- 12 TABLE OF CONTENTS Page I. IFFA DID NOT ACT LIKE A DEFENDANT, DID NOT VIOLATE THE LAW LIKE A DEFENDANT, IS NOT A FUNCTIONAL DEFENDANT, AND SHOULD NOT BE TREATED AS A WRONGDOER DEFEND ANT FOR ATTORNEY’S FEES PURPOSES- 1 II. IF ALLOWED TO STAND, THE RESULT BE LOW WOULD HAVE A SEVERE CHILLING EFFECT UPON THE ADVERSARY JUDI CIAL PROCESS TO WHICH CONGRESS EN TRUSTED THE ULTIMATE EFFECTUA TION OF THE GOALS OF TITLE V II----------- 7 III. NOTHING IN THE LANGUAGE OF § 706 (k) REQUIRES THE RESULT BELOW................... 9 CONCLUSION....... - .......................................................—- 12 TABLE OF AUTHORITIES Cases Page Alyeska Pipeline Service Co. v. The Wilderness Society, 421 U.S. 240 (1975).............................. 9 Annunziato v. The Gan, Inc., 744 F.2d 244 (2nd Cir. 1984)............ 6,7 Charles v. Daley, 846 F.2d 1057 (7th Cir. 1988), certiorari pending sub nom. Diamond v. Charles (No. 88-664)................. ..................................... 10 Christiansburg Garment v. EEOC, 434 U.S. 412 (1978) ........................................................................ passim Freedman v. ALSSA, 730 F.2d 509 (7th Cir.), cert, denied, 469 U.S. 899 (1984).......................... 8 Grano v. Barry, 783 F.2d 1104 (D.C. Cir. 1986)...... 7 Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968) .............. 9,10 Reeves v. UarreU, 791 F.2d 1481 (11th Cir. 1986), cert, denied, 479 U.S. 1033 (1987)______ 2,7 Sims v. Amos, 340 F. Supp. 691 (M.D. Ala.), aff’d mem. 409 U.S. 942 (1972) .................................... 3 Teamsters v. U.S., 431 U.S. 324 (1977) .................. 2 Tunstall v. Office of Judicial Support, 820 F.2d 631 (3rd Cir. 1987) ................................... 6,7 Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982) ........................................................................ 6 Statutes Civil Rights Attorneys’ Fees Awards Act of 1976, 42 U.S.C. § 1988 __________________________ 3 Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e, et seq......... .................................................passim § 703(h) __________ ____________________ 4 § 706(g) .......... ................................................... 4 § 706(k) ....... passim National Labor Relations Act, 29 U.S.C. § 151, et seq............................ 4 Railway Labor Act, 45 U.S.C. § 151, et seq.............. 4 Constitution of the United States Amendment V 4 ii I n T h e !$upri? mr (tart of tljo States October T er m , 1988 No. 88-608 I n d e pen d en t F ederation of v. F lig h t A t t e n d a n t s , Petitioner, A n n e B. Zip e s , et al., Respondents. On Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit REPLY BRIEF FOR PETITIONER I. IFFA DID NOT ACT LIKE A DEFENDANT, DID NOT VIOLATE THE LAW LIKE A DEFENDANT, IS NOT A FUNCTIONAL DEFENDANT, AND SHOULD NOT BE TREATED AS A WRONGDOER DEFENDANT FOR ATTORNEY’S FEES PURPOSES Plaintiffs’ Brief 1 is more notable for what it does not dispute or discuss than for what it does.2 The core of 1 References to Plaintiffs’ Brief will be denoted as “PI. B r .------.” 2 For example, Plaintiffs do not dispute (because they cannot) that (1) the settlement effectively cost 159 Flight Attendants their jobs; (2) Plaintiffs’ counsel was paid more than $1,250,000 from the settlement fund which included the use of a “multiplier” of two land effectively paid counsel hourly wages as high as $300 per hour) ; and (3) the typical class member received approximately $2,000 in backpay as compensation for being deprived of her job for 15 years. Plaintiffs also acknowledge that Subclass B members (who TABLE OF AUTHORITIES Cases Page Alyeska Pipeline Service Co. v. The Wilderness Society, 421 U.S. 240 (1975).............................. 9 Annunziato v. The Gan, Inc., 744 F.2d 244 (2nd Cir. 1984)............ 6,7 Charles v. Daley, 846 F.2d 1057 (7th Cir. 1988), certiorari pending sub nom. Diamond v. Charles (No. 88-664)................. ..................................... 10 Christiansburg Garment v. EEOC, 434 U.S. 412 (1978) ........................................................................ passim Freedman v. ALSSA, 730 F.2d 509 (7th Cir.), cert, denied, 469 U.S. 899 (1984).......................... 8 Grano v. Barry, 783 F.2d 1104 (D.C. Cir. 1986)...... 7 Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968) .............. 9,10 Reeves v. UarreU, 791 F.2d 1481 (11th Cir. 1986), cert, denied, 479 U.S. 1033 (1987)______ 2,7 Sims v. Amos, 340 F. Supp. 691 (M.D. Ala.), aff’d mem. 409 U.S. 942 (1972) .................................... 3 Teamsters v. U.S., 431 U.S. 324 (1977) .................. 2 Tunstall v. Office of Judicial Support, 820 F.2d 631 (3rd Cir. 1987) ................................... 6,7 Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982) ........................................................................ 6 Statutes Civil Rights Attorneys’ Fees Awards Act of 1976, 42 U.S.C. § 1988 __________________________ 3 Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e, et seq......... .................................................passim § 703(h) __________ ____________________ 4 § 706(g) .......... ................................................... 4 § 706(k) ....... passim National Labor Relations Act, 29 U.S.C. § 151, et seq............................ 4 Railway Labor Act, 45 U.S.C. § 151, et seq.............. 4 Constitution of the United States Amendment V 4 ii I n T h e !$upri? mr (tart of tljo States October T er m , 1988 No. 88-608 I n d e pen d en t F ederation of v. F lig h t A t t e n d a n t s , Petitioner, A n n e B. Zip e s , et al., Respondents. On Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit REPLY BRIEF FOR PETITIONER I. IFFA DID NOT ACT LIKE A DEFENDANT, DID NOT VIOLATE THE LAW LIKE A DEFENDANT, IS NOT A FUNCTIONAL DEFENDANT, AND SHOULD NOT BE TREATED AS A WRONGDOER DEFENDANT FOR ATTORNEY’S FEES PURPOSES Plaintiffs’ Brief 1 is more notable for what it does not dispute or discuss than for what it does.2 The core of 1 References to Plaintiffs’ Brief will be denoted as “PI. B r .------.” 2 For example, Plaintiffs do not dispute (because they cannot) that (1) the settlement effectively cost 159 Flight Attendants their jobs; (2) Plaintiffs’ counsel was paid more than $1,250,000 from the settlement fund which included the use of a “multiplier” of two land effectively paid counsel hourly wages as high as $300 per hour) ; and (3) the typical class member received approximately $2,000 in backpay as compensation for being deprived of her job for 15 years. Plaintiffs also acknowledge that Subclass B members (who <*> * a > c Plaintiffs’ position, however, seems to be that IFFA should be characterized as a “functional defendant” and not as a “functional plaintiff.” For numerous reasons, this argument cannot stand. Although it seems elementary, the proper starting point for this analysis is the basic meaning of the terms “plaintiff” and “defendant.” Like a plaintiff, IFFA came into court complaining that what TWA and the Plaintiffs had agreed to ask the court to order would injure IFFA and its members. Unlike a defendant, IFFA was never accused of committing a legal wrong. If one term or the other must be chosen, clearly IFFA’s behavior was more akin to that of a plaintiff than that of a defendant. The center piece of Plaintiffs’ theory is that IFFA must be a functional defendant because it was opposed by Plaintiffs. But that contention makes no sense, for IFFA was opposed by both Plaintiffs and adjudicated wrongdoer defendant TWA. The emphasis should not be on who opposes the innocent third-party, but instead on why that innocent third party is present in the litigation. Thus, the intervenors in Reeves v. Harrell, 791 F.2d 1481 (11th Cir. 1986), cert, denied, 479 U.S. 1033 (1987), were not contending that the defendants had violated their rights ab initio, but only that what plaintiffs and defendants had agreed to do and what the court had ordered pur suant to the settlement of the plaintiffs’ claims violated their rights, and therefore those intervenors were con sidered “functional plaintiffs.” IFFA found itself in pre cisely the same position. 2 constitute 92% of the class) were not the subject of timely charges filed with the EEOC. (PI. Br. 2). Moreover, Plaintiffs do not bother to discuss the union’s duty of fair representation (except to state that they agree with the Seventh Circuit Panel m ajority); or the procedures which this Court has indicated must be followed in Title VII remedial proceedings and the role the union (which is not an adjudicated wrongdoer defendant) must play in those proceedings as articulated in Tut mains v. U.S., 4:11 ll.S. 324 (1977); or even the very "special circumstances'’ of this case. Indeed, Plaintiffs admit that the formal litigation labels the parties bear are “not helpful in assessing” liability for fees. (PI. Br. 12). We agree that “The real question is whether the losing party acted like a plaintiff or a defendant.” (Id.). It is worth noting, how ever, that in adopting this position Plaintiffs are seri ously undercutting and exposing the frailty of the ration ale of the Panel majority below. If the courts are indeed to look beyond the litigation labels and analyze who the parties truly are, then there is no real danger that wrong doer defendants will be able to successfully “cloak them selves” with phony claims in order to avoid liability for fees. There is no doubt that the courts not only should, but can make these determinations. Plaintiffs persuasively make this point themselves by noting that the legislative history of 42 U.S.C. § 1988 cites Sims v. Amos, 340 F.Supp. 691 (M.D. Ala.), aff’d mem. 409 U.S. 942 (1972). While it is true that the legislators who inter vened in Sims were assessed fees, it is clear from the opinion that those legislators are the parties who actually deprived plaintiffs of their rights. Thus, when the inter venors are true defendants who actually violated the law, it is appropriate to treat those intervenors like defendants for attorney’s fees purposes. But when the intervenors are parties who did not deprive the plaintiffs of their rights, and who are suffering a deprivation of their own rights although they did no wrong, it is appropriate to treat those intervenors like plaintiffs for attorney’s fees purposes. Given Plaintiffs’ admission that the Court must look beyond the litigation labels, Plaintiffs’ other arguments that IFFA should be characterized as a “functional de fendant” are quite illogical. We will discuss each in turn. First, Plaintiffs contend that IFFA must be a “func tional defendant” because IFFA was not asserting Title VII rights. Thus, if Plaintiffs are to be believed, a party <*> * a > c Plaintiffs’ position, however, seems to be that IFFA should be characterized as a “functional defendant” and not as a “functional plaintiff.” For numerous reasons, this argument cannot stand. Although it seems elementary, the proper starting point for this analysis is the basic meaning of the terms “plaintiff” and “defendant.” Like a plaintiff, IFFA came into court complaining that what TWA and the Plaintiffs had agreed to ask the court to order would injure IFFA and its members. Unlike a defendant, IFFA was never accused of committing a legal wrong. If one term or the other must be chosen, clearly IFFA’s behavior was more akin to that of a plaintiff than that of a defendant. The center piece of Plaintiffs’ theory is that IFFA must be a functional defendant because it was opposed by Plaintiffs. But that contention makes no sense, for IFFA was opposed by both Plaintiffs and adjudicated wrongdoer defendant TWA. The emphasis should not be on who opposes the innocent third-party, but instead on why that innocent third party is present in the litigation. Thus, the intervenors in Reeves v. Harrell, 791 F.2d 1481 (11th Cir. 1986), cert, denied, 479 U.S. 1033 (1987), were not contending that the defendants had violated their rights ab initio, but only that what plaintiffs and defendants had agreed to do and what the court had ordered pur suant to the settlement of the plaintiffs’ claims violated their rights, and therefore those intervenors were con sidered “functional plaintiffs.” IFFA found itself in pre cisely the same position. 2 constitute 92% of the class) were not the subject of timely charges filed with the EEOC. (PI. Br. 2). Moreover, Plaintiffs do not bother to discuss the union’s duty of fair representation (except to state that they agree with the Seventh Circuit Panel m ajority); or the procedures which this Court has indicated must be followed in Title VII remedial proceedings and the role the union (which is not an adjudicated wrongdoer defendant) must play in those proceedings as articulated in Tut mains v. U.S., 4:11 ll.S. 324 (1977); or even the very "special circumstances'’ of this case. Indeed, Plaintiffs admit that the formal litigation labels the parties bear are “not helpful in assessing” liability for fees. (PI. Br. 12). We agree that “The real question is whether the losing party acted like a plaintiff or a defendant.” (Id.). It is worth noting, how ever, that in adopting this position Plaintiffs are seri ously undercutting and exposing the frailty of the ration ale of the Panel majority below. If the courts are indeed to look beyond the litigation labels and analyze who the parties truly are, then there is no real danger that wrong doer defendants will be able to successfully “cloak them selves” with phony claims in order to avoid liability for fees. There is no doubt that the courts not only should, but can make these determinations. Plaintiffs persuasively make this point themselves by noting that the legislative history of 42 U.S.C. § 1988 cites Sims v. Amos, 340 F.Supp. 691 (M.D. Ala.), aff’d mem. 409 U.S. 942 (1972). While it is true that the legislators who inter vened in Sims were assessed fees, it is clear from the opinion that those legislators are the parties who actually deprived plaintiffs of their rights. Thus, when the inter venors are true defendants who actually violated the law, it is appropriate to treat those intervenors like defendants for attorney’s fees purposes. But when the intervenors are parties who did not deprive the plaintiffs of their rights, and who are suffering a deprivation of their own rights although they did no wrong, it is appropriate to treat those intervenors like plaintiffs for attorney’s fees purposes. Given Plaintiffs’ admission that the Court must look beyond the litigation labels, Plaintiffs’ other arguments that IFFA should be characterized as a “functional de fendant” are quite illogical. We will discuss each in turn. First, Plaintiffs contend that IFFA must be a “func tional defendant” because IFFA was not asserting Title VII rights. Thus, if Plaintiffs are to be believed, a party who contends that a settlement abridges her rights un der Title VII must be characterized as a “functional plaintiff”, whereas a party who claims that her rights are being abridged under a collective bargaining agree ment safeguarded by the Railway Labor Act or the Na tional Labor Relations Act must be characterized as a “functional defendant.” We find such reasoning to be strained at best, and as pointed out by the United States as amicus curiae (hereinafter “the Government” ), such a distinction would also be impractical and unworkable. Both third parties are essentially contending that they have been deprived of legitimate rights even though they have not committed a legal wrong; and neither third party had a claim initially, for the claim only arises as a result of what the defendant may agree to do in order to resolve the litigation and/or what the court may order in that regard. Thus, as to both third parties, it is the illegal act of a defendant in violation of the civil rights law that directly caused their loss and their claims. In any event, such a distinction, even if valid, could have no possible relevance here, since an integral part of IFFA’s arguments was that the deprivation of its con tractual rights at a time when Plaintiffs had not proven that they were subjected to a legal wrong was a taking in violation of the Fifth Amendment guarantee to Due Process of law. (See pp. 24-27 and 35-37 of IFFA’s lead Brief and pp. 1-6 of IFFA’s Reply Brief in No. 80-951). In addition, throughout the litigation over the settlement IFFA argued that the relief Plaintiffs were seeking was inconsistent with §§703(h) and 706(g) of Title VII. (See pp. 27-28 and 31-32 of our lead Brief in No. 80- 951). Given these Constitutional and Title VII argu ments, which, it must be remembered, were part of a question presented which was worthy of a grant of cer tiorari, there is no basis for treating IFFA differently from other "functional plaintiffs” who may raise such claims. 5 Second, Plaintiffs contend that IFFA must be con strued as a “functional defendant” because, according to Plaintiffs, IFFA attempted to force TWA and Plaintiffs “ [T]o continue litigating the claims on the merits (and the question of jurisdiction) to the bitter end, in a winner- take-all contest.” (PI. Br. 3, see also PI. Br. 13, 14). To the contrary, in the very first paragraph of the Summary of Argument in its lead Brief filed with this Court in No. 80-951, IFFA stated: TWA remains free to settle the case by offering the Plaintiffs $3 million or any larger amount which TWA owns; but it cannot diminish its own potential monetary liability by granting to Plaintiffs competi tive status seniority inconsistent with the TWA-IFFA contract. As Plaintiffs know well, IFFA made statements to this effect numerous times throughout the litigation over the settlement. IFFA did not care whether there was a set tlement, but cared only about the harm a certain type of settlement would cause to its members. Time and time again IFFA suggested that the proper course was for TWA to pay Plaintiffs more money, and to leave the incumbent employees alone. The case, including the juris dictional issue, could have been settled at any time, with or without the aid of the court. The presence of the Dis trict Court was necessary only to ensure that the collec tive bargaining agreement and the rights of the incum bent employees could be overridden. In addition, Plain tiffs’ “winner-take-all” scenario is belied by the facts. The jurisdictional issue was litigated and Plaintiffs won, but Plaintiffs hardly took “all.” Indeed, as to backpay, Plaintiffs took very little. A third argument made by Plaintiffs is that IFFA must be treated as a “functional defendant” because it attempted to frustrate the efforts of Plaintiffs to obtain a “make-whole remedy.” (PI. Br. 4, 5, 9). Plaintiffs seem to forget that they settled quite cheaply. Indeed, Plain- who contends that a settlement abridges her rights un der Title VII must be characterized as a “functional plaintiff”, whereas a party who claims that her rights are being abridged under a collective bargaining agree ment safeguarded by the Railway Labor Act or the Na tional Labor Relations Act must be characterized as a “functional defendant.” We find such reasoning to be strained at best, and as pointed out by the United States as amicus curiae (hereinafter “the Government” ), such a distinction would also be impractical and unworkable. Both third parties are essentially contending that they have been deprived of legitimate rights even though they have not committed a legal wrong; and neither third party had a claim initially, for the claim only arises as a result of what the defendant may agree to do in order to resolve the litigation and/or what the court may order in that regard. Thus, as to both third parties, it is the illegal act of a defendant in violation of the civil rights law that directly caused their loss and their claims. In any event, such a distinction, even if valid, could have no possible relevance here, since an integral part of IFFA’s arguments was that the deprivation of its con tractual rights at a time when Plaintiffs had not proven that they were subjected to a legal wrong was a taking in violation of the Fifth Amendment guarantee to Due Process of law. (See pp. 24-27 and 35-37 of IFFA’s lead Brief and pp. 1-6 of IFFA’s Reply Brief in No. 80-951). In addition, throughout the litigation over the settlement IFFA argued that the relief Plaintiffs were seeking was inconsistent with §§703(h) and 706(g) of Title VII. (See pp. 27-28 and 31-32 of our lead Brief in No. 80- 951). Given these Constitutional and Title VII argu ments, which, it must be remembered, were part of a question presented which was worthy of a grant of cer tiorari, there is no basis for treating IFFA differently from other "functional plaintiffs” who may raise such claims. 5 Second, Plaintiffs contend that IFFA must be con strued as a “functional defendant” because, according to Plaintiffs, IFFA attempted to force TWA and Plaintiffs “ [T]o continue litigating the claims on the merits (and the question of jurisdiction) to the bitter end, in a winner- take-all contest.” (PI. Br. 3, see also PI. Br. 13, 14). To the contrary, in the very first paragraph of the Summary of Argument in its lead Brief filed with this Court in No. 80-951, IFFA stated: TWA remains free to settle the case by offering the Plaintiffs $3 million or any larger amount which TWA owns; but it cannot diminish its own potential monetary liability by granting to Plaintiffs competi tive status seniority inconsistent with the TWA-IFFA contract. As Plaintiffs know well, IFFA made statements to this effect numerous times throughout the litigation over the settlement. IFFA did not care whether there was a set tlement, but cared only about the harm a certain type of settlement would cause to its members. Time and time again IFFA suggested that the proper course was for TWA to pay Plaintiffs more money, and to leave the incumbent employees alone. The case, including the juris dictional issue, could have been settled at any time, with or without the aid of the court. The presence of the Dis trict Court was necessary only to ensure that the collec tive bargaining agreement and the rights of the incum bent employees could be overridden. In addition, Plain tiffs’ “winner-take-all” scenario is belied by the facts. The jurisdictional issue was litigated and Plaintiffs won, but Plaintiffs hardly took “all.” Indeed, as to backpay, Plaintiffs took very little. A third argument made by Plaintiffs is that IFFA must be treated as a “functional defendant” because it attempted to frustrate the efforts of Plaintiffs to obtain a “make-whole remedy.” (PI. Br. 4, 5, 9). Plaintiffs seem to forget that they settled quite cheaply. Indeed, Plain G tiffs were not made anything close to whole. The fact that Plaintiffs were not made whole was not caused by IFFA but rather brought about by a serious weakness in Plaintiffs’ case which forced them to settle with TWA for something akin to two cents on the dollar. Under these circumstances, there is no basis for assessing fees against IFFA in the name of making Plaintiffs whole. Any thought of a “make-whole” remedy was abandoned by Plaintiffs at the moment they settled. Fourth, there is also no basis for attempting to draw a distinction between arguments raised by third parties which contest some aspect of the relief plaintiffs seek and arguments which could theoretically deprive plaintiffs of all relief. Such a rule would lead to the quite illogical result of innocent third parties being penalized if they raised their strongest arguments but not penalized for raising their weaker ones. Such a rule would also severely inhibit incumbent employees from presenting the equities of their position vis-a-vis the settling plaintiffs to the district court, as Justice Powell’s concurring opinion in Zipes I indicates that they should. It would also, as Justice Powell warned, encourage employers to attempt to “ [Sjettle Title VII actions, in part, by bargaining away the rights of current employees.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 401, n. 1 (1982) (Powell, J., concurring). Here, IFFA made it plain that its sole concern was the effect which a grant of seniority to plain tiffs would have upon the incumbents. Having so qualified its interest, it hardly seems just to penalize IFFA because it dared to point out to the District Court that its Court of Appeals had held that there was no subject matter jurisdiction over the claims pursuant to which the court was about to order that grant of seniority. Fifth, Plaintiffs turn their own argument on its head when they claim that Tunstall v. Office of Judicial Sup port, 820 F.2d G31 13rd Cir. 1987), and Annunziato v. I lu (mu, Inc., 744 F.2d 244 (2nd Cir. 1984) are inap 7 posite because the “functional plaintiffs” there who were not assessed fees were defendants and not intervenors. Are Plaintiffs saying that defendants deserve more pro tection under § 706(k) than intervenors? We think not. What Tunstall and Annunziato do demonstrate is that even defendants can be “functional plaintiffs.” What links the defendants in Tunstall and Annunziato with the intervenors in Reeves, Grano v. Barry, 783 F.2d 1104 (D.C. Cir. 1986), and IFFA here, is not their litigation labels but the fact that each of those parties was de prived of property and/or rights even though it had not violated the law. The reasons for denying fees in each instance has nothing to do with those labels or even the precise nature of the deprivation suffered by these third parties, but rather the fact that none of these third par ties had violated the law, and that their loss had been brought about by the acts of the principal defendant which did violate the civil rights laws. As the Govern ment aptly points out, this Court has stated that § 706 (k) must be construed pursuant to traditional considera tions of equity. Christiansburg Garment v. EEOC, 434 U.S. 412, 418-19 (1978). The purpose of a fee-shifting statute, obviously, is to shift the cost of the litigation from the wronged party to the party who committed the wrong. But where innocent third parties are inevitably harmed by the collateral consequences of civil rights liti gation, there simply is no equity in routinely assessing fees against them. II. IF ALLOWED TO STAND, THE RESULT BELOW WOULD HAVE A SEVERE CHILLING EFFECT UPON THE ADVERSARY JUDICIAL PROCESS TO WHICH CONGRESS ENTRUSTED THE ULTIMATE EFFECTUATION OF THE GOALS OF TITLE VII Plaintiffs clearly are not very concerned with the chill ing effect which the result below undoubtedly will have upon the rights of innocent third parties harmed by the settlement of Title VII cases. By way of reply to the G tiffs were not made anything close to whole. The fact that Plaintiffs were not made whole was not caused by IFFA but rather brought about by a serious weakness in Plaintiffs’ case which forced them to settle with TWA for something akin to two cents on the dollar. Under these circumstances, there is no basis for assessing fees against IFFA in the name of making Plaintiffs whole. Any thought of a “make-whole” remedy was abandoned by Plaintiffs at the moment they settled. Fourth, there is also no basis for attempting to draw a distinction between arguments raised by third parties which contest some aspect of the relief plaintiffs seek and arguments which could theoretically deprive plaintiffs of all relief. Such a rule would lead to the quite illogical result of innocent third parties being penalized if they raised their strongest arguments but not penalized for raising their weaker ones. Such a rule would also severely inhibit incumbent employees from presenting the equities of their position vis-a-vis the settling plaintiffs to the district court, as Justice Powell’s concurring opinion in Zipes I indicates that they should. It would also, as Justice Powell warned, encourage employers to attempt to “ [Sjettle Title VII actions, in part, by bargaining away the rights of current employees.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 401, n. 1 (1982) (Powell, J., concurring). Here, IFFA made it plain that its sole concern was the effect which a grant of seniority to plain tiffs would have upon the incumbents. Having so qualified its interest, it hardly seems just to penalize IFFA because it dared to point out to the District Court that its Court of Appeals had held that there was no subject matter jurisdiction over the claims pursuant to which the court was about to order that grant of seniority. Fifth, Plaintiffs turn their own argument on its head when they claim that Tunstall v. Office of Judicial Sup port, 820 F.2d G31 13rd Cir. 1987), and Annunziato v. I lu (mu, Inc., 744 F.2d 244 (2nd Cir. 1984) are inap 7 posite because the “functional plaintiffs” there who were not assessed fees were defendants and not intervenors. Are Plaintiffs saying that defendants deserve more pro tection under § 706(k) than intervenors? We think not. What Tunstall and Annunziato do demonstrate is that even defendants can be “functional plaintiffs.” What links the defendants in Tunstall and Annunziato with the intervenors in Reeves, Grano v. Barry, 783 F.2d 1104 (D.C. Cir. 1986), and IFFA here, is not their litigation labels but the fact that each of those parties was de prived of property and/or rights even though it had not violated the law. The reasons for denying fees in each instance has nothing to do with those labels or even the precise nature of the deprivation suffered by these third parties, but rather the fact that none of these third par ties had violated the law, and that their loss had been brought about by the acts of the principal defendant which did violate the civil rights laws. As the Govern ment aptly points out, this Court has stated that § 706 (k) must be construed pursuant to traditional considera tions of equity. Christiansburg Garment v. EEOC, 434 U.S. 412, 418-19 (1978). The purpose of a fee-shifting statute, obviously, is to shift the cost of the litigation from the wronged party to the party who committed the wrong. But where innocent third parties are inevitably harmed by the collateral consequences of civil rights liti gation, there simply is no equity in routinely assessing fees against them. II. IF ALLOWED TO STAND, THE RESULT BELOW WOULD HAVE A SEVERE CHILLING EFFECT UPON THE ADVERSARY JUDICIAL PROCESS TO WHICH CONGRESS ENTRUSTED THE ULTIMATE EFFECTUATION OF THE GOALS OF TITLE VII Plaintiffs clearly are not very concerned with the chill ing effect which the result below undoubtedly will have upon the rights of innocent third parties harmed by the settlement of Title VII cases. By way of reply to the 8 few, scattered points in Plaintiffs’ Brief which address this subject, we make three points. First, Plaintiffs contend that requiring the original wrongdoer defendant to remain responsible for fees gen erated by innocent third parties would be “unworkable.” (PI. Br. 18). However, the only reason given in support of this theory is that defendants want to know precisely what their costs are as of the time of settlement and that a contrary rule would therefore allegedly serve as a “disincentive to settle.” (PI. Br. 17). But as we noted in our lead Brief, (1) the situation is quite different when plaintiffs and defendant know that the settlement will generate claims by the innocent third parties3; (2) if their case is strong enough, plaintiffs can struc ture a settlement which will allow them to recover such fees from the wrongdoer defendant, and if their case is not strong enough, plaintiffs should not recover from innocent employees what they could not recover from the discriminating employer; and (3) here, a powerful argu ment can be made that TWA has already paid the Plain tiffs for the litigation over the settlement through the seven-figure fees which Plaintiffs’ counsel received from the settlement fund. Plaintiffs fail to discuss any of these points. Moreover, the notion that “TWA could not reasonably be expected to anticipate” (PI. Br. 18) that in attempting to preserve its members’ job security IFFA would bring to the attention of the District Court the fact that its Court of Appeals had found a lack of sub ject matter jurisdiction, is—in a word—absurd. Second, Plaintiffs argue that the “chilling effect” argu ment is “atavistic” because under the “English Rule” the “loser pays as a matter of course . . (PI. Br. 14, 3 Both the District Court and Seventh Circuit specifically noted that the parties to the settlement surely knew that IFFA and the incumbent employees would object to certain provisions in the Settlement Agreement. Pet. App. Ilia; Freedman v. ALSSA, 7.10 F.2ii 5(l‘J. fill (7th Cir.). cert, denied, 400 U.S. 800 (1084). V 9 n.19). But Plaintiffs fail to mention that under the English Rule innocent third parties would be entitled to recover attorney’s fees if they prevailed. Alyeska. Pipe line Service Co. v. The Wilderness Society, 421 U.S. 240, 247, n.18 (1975). This does nothing to diminish the severe chilling effect which innocent third parties will suffer if they are placed in a situation where they must pay attorney’s fees if they lose but cannot recover a t torney’s fees if they prevail. Third, Congress entrusted the ultimate effectuation of Title VII to the adversary judicial process. Christians- burg, 434 U.S. at 419. This “ [P] resupposes both a vigorous prosecution and vigorous defense.” Id. Surely it also presupposes that innocent third parties harmed by the settlement of a Title VII case will also have an op portunity to vigorously present their claims. As the Gov ernment stresses, the result below, if allowed to stand, would cause significant harm to that adversary judicial process. Many innocent employees would be deterred from presenting their claims and would necessarily de cide that they could not afford to voice their rights. Plaintiffs, we note once again, simply fail to respond on this critical point. IIL NOTHING IN THE LANGUAGE OF § 706(k) RE QUIRES THE RESULT BELOW Plaintiffs emphasize that the language of § 706 (k) does not say that innocent third parties should be treated as plaintiffs for attorney’s fees purposes. Therefore, Plaintiffs argue, since Plaintiffs prevailed against IFFA on the seniority issue, IFFA “must pay” Plaintiffs’ at torney’s fees under the plain meaning of the statute. Whatever surface appeal this argument has is exploded by a simple reading of Neurman v. Piggie Park Enter prises, Inc., 390 U.S. 400 (1968) and Christiansburg. Section 706(k) also does not say that prevailing plain tiffs should ordinarily recover attorney’s fees against ad- 8 few, scattered points in Plaintiffs’ Brief which address this subject, we make three points. First, Plaintiffs contend that requiring the original wrongdoer defendant to remain responsible for fees gen erated by innocent third parties would be “unworkable.” (PI. Br. 18). However, the only reason given in support of this theory is that defendants want to know precisely what their costs are as of the time of settlement and that a contrary rule would therefore allegedly serve as a “disincentive to settle.” (PI. Br. 17). But as we noted in our lead Brief, (1) the situation is quite different when plaintiffs and defendant know that the settlement will generate claims by the innocent third parties3; (2) if their case is strong enough, plaintiffs can struc ture a settlement which will allow them to recover such fees from the wrongdoer defendant, and if their case is not strong enough, plaintiffs should not recover from innocent employees what they could not recover from the discriminating employer; and (3) here, a powerful argu ment can be made that TWA has already paid the Plain tiffs for the litigation over the settlement through the seven-figure fees which Plaintiffs’ counsel received from the settlement fund. Plaintiffs fail to discuss any of these points. Moreover, the notion that “TWA could not reasonably be expected to anticipate” (PI. Br. 18) that in attempting to preserve its members’ job security IFFA would bring to the attention of the District Court the fact that its Court of Appeals had found a lack of sub ject matter jurisdiction, is—in a word—absurd. Second, Plaintiffs argue that the “chilling effect” argu ment is “atavistic” because under the “English Rule” the “loser pays as a matter of course . . (PI. Br. 14, 3 Both the District Court and Seventh Circuit specifically noted that the parties to the settlement surely knew that IFFA and the incumbent employees would object to certain provisions in the Settlement Agreement. Pet. App. Ilia; Freedman v. ALSSA, 7.10 F.2ii 5(l‘J. fill (7th Cir.). cert, denied, 400 U.S. 800 (1084). V 9 n.19). But Plaintiffs fail to mention that under the English Rule innocent third parties would be entitled to recover attorney’s fees if they prevailed. Alyeska. Pipe line Service Co. v. The Wilderness Society, 421 U.S. 240, 247, n.18 (1975). This does nothing to diminish the severe chilling effect which innocent third parties will suffer if they are placed in a situation where they must pay attorney’s fees if they lose but cannot recover a t torney’s fees if they prevail. Third, Congress entrusted the ultimate effectuation of Title VII to the adversary judicial process. Christians- burg, 434 U.S. at 419. This “ [P] resupposes both a vigorous prosecution and vigorous defense.” Id. Surely it also presupposes that innocent third parties harmed by the settlement of a Title VII case will also have an op portunity to vigorously present their claims. As the Gov ernment stresses, the result below, if allowed to stand, would cause significant harm to that adversary judicial process. Many innocent employees would be deterred from presenting their claims and would necessarily de cide that they could not afford to voice their rights. Plaintiffs, we note once again, simply fail to respond on this critical point. IIL NOTHING IN THE LANGUAGE OF § 706(k) RE QUIRES THE RESULT BELOW Plaintiffs emphasize that the language of § 706 (k) does not say that innocent third parties should be treated as plaintiffs for attorney’s fees purposes. Therefore, Plaintiffs argue, since Plaintiffs prevailed against IFFA on the seniority issue, IFFA “must pay” Plaintiffs’ at torney’s fees under the plain meaning of the statute. Whatever surface appeal this argument has is exploded by a simple reading of Neurman v. Piggie Park Enter prises, Inc., 390 U.S. 400 (1968) and Christiansburg. Section 706(k) also does not say that prevailing plain tiffs should ordinarily recover attorney’s fees against ad- 1 0 judicated wrongdoer defendants unless special circum stances exist. Nor does the statute say that prevailing defendants should wot ordinarily recover attorney’s fees from unsuccessful plaintiffs unless the plaintiffs’ claim was frivolous, unreasonable or without foundation. For whatever reason, Congress chose to leave the language of the fee-shifting provision somewhat vague, entrusting the courts to interpret the statute in a fashion consistent with the purposes of Title VII and, as noted in Chris- tiansburg, traditional considerations of equity. Chris- tiansburg, 434 U.S. at 420. Accordingly, the Court must decide this case, as it has Christiansburg, Piggie Park, and numerous others, based upon those purposes and those equitable considerations. The inconclusive language of § 706 (k) simply does not address the question pre sented. Nor can the result below be upheld by pointing to the discretion which § 706 (k) vests in the district court, as suggested by amicus curias American Civil Liberties Union (ACLU). We do not contend that a district court would never have discretion to award fees against an intervening third party. But the fact here is that the District Court was exercising no such discretion. Instead, it believed (incorrectly) that an award of fees in favor of Plaintiffs was “almost automatic” pursuant to the fashion in which this Court had interpreted § 706(k) in Piggie Park and Christiansburg.* * 5 * The ACLU, curiously, takes what clearly is an anti-free speech position and sides with Plaintiffs. But much of the ACLU brief reads as if it is arguing another case, and we suspect that it is, and that that case is Charles v. Daley, 846 F.2d 1057 (7th Cir. 1988), petition for certiorari pending sub nom. Diamond v. Charles, No. 88-664, a case in which the ACLU represents the respondents. Obviously, a decision on Charles will have to wait for another day. Suffice it to say that the main thrust of the ACLU—i.e., opposition to a "per sc" prohibition barring a district court, in the reasoned exercise of its discretion, from awarding fees against innocent third parlies is irrelevant to this case. (ACLU Ur. p. We do not 11 Plaintiffs’ other arguments suffer from the same flaws. In arguing that just one of the two factors listed in Christiansburg is sufficient to justify an award of fees here, Plaintiffs simply ignore the obvious point that the strongest possible equitable reason for awarding fees against a defendant is that that defendant has violated the law. Plaintiffs also make no effort to explain why the need to encourage private attorneys general has any applicability to the facts of this case.6 Moreover, Plain tiffs fail to mention that the equitable considerations listed in Christiansburg as reasons for not routinely awarding fees against plaintiffs read as if the Court was discussing the events which befell this Petitioner in this case. (See Christiansburg, 434 U.S. at 422, and our lead Brief at pp. 24-25). This latter point also dismantles the argument that in a contest between two plaintiffs, the losing plaintiff should pay the attorney’s fees of the winning plaintiff. (PI. Br. 16-17). Again, Plaintiffs fail to discuss the reasons given in Christiansburg for not assessing fees against plaintiffs, absent a showing that those plaintiffs had brought frivolous claims. We can think of no reason why those standards would not apply here, and certainly Plaintiffs have offered none. Accordingly, this argument must be rejected as well. argue for such a per se prohibition, and as noted above the District Court here did not feel free to make such a reasoned exercise of its discretion. 5 Indeed, all of Plaintiffs’ arguments regarding the need to encour age individuals to act as Title VII private attorneys general are generic, and do not deal with the extraordinary circumstances of this case. Regardless of how the issue may arise in other cases, this case obviously must be decided on the facts of this case. 1 0 judicated wrongdoer defendants unless special circum stances exist. Nor does the statute say that prevailing defendants should wot ordinarily recover attorney’s fees from unsuccessful plaintiffs unless the plaintiffs’ claim was frivolous, unreasonable or without foundation. For whatever reason, Congress chose to leave the language of the fee-shifting provision somewhat vague, entrusting the courts to interpret the statute in a fashion consistent with the purposes of Title VII and, as noted in Chris- tiansburg, traditional considerations of equity. Chris- tiansburg, 434 U.S. at 420. Accordingly, the Court must decide this case, as it has Christiansburg, Piggie Park, and numerous others, based upon those purposes and those equitable considerations. The inconclusive language of § 706 (k) simply does not address the question pre sented. Nor can the result below be upheld by pointing to the discretion which § 706 (k) vests in the district court, as suggested by amicus curias American Civil Liberties Union (ACLU). We do not contend that a district court would never have discretion to award fees against an intervening third party. But the fact here is that the District Court was exercising no such discretion. Instead, it believed (incorrectly) that an award of fees in favor of Plaintiffs was “almost automatic” pursuant to the fashion in which this Court had interpreted § 706(k) in Piggie Park and Christiansburg.* 5 * The ACLU, curiously, takes what clearly is an anti-free speech position and sides with Plaintiffs. But much of the ACLU brief reads as if it is arguing another case, and we suspect that it is, and that that case is Charles v. Daley, 846 F.2d 1057 (7th Cir. 1988), petition for certiorari pending sub nom. Diamond v. Charles, No. 88-664, a case in which the ACLU represents the respondents. Obviously, a decision on Charles will have to wait for another day. Suffice it to say that the main thrust of the ACLU—i.e., opposition to a "per sc" prohibition barring a district court, in the reasoned exercise of its discretion, from awarding fees against innocent third parlies is irrelevant to this case. (ACLU Ur. p. We do not 11 Plaintiffs’ other arguments suffer from the same flaws. In arguing that just one of the two factors listed in Christiansburg is sufficient to justify an award of fees here, Plaintiffs simply ignore the obvious point that the strongest possible equitable reason for awarding fees against a defendant is that that defendant has violated the law. Plaintiffs also make no effort to explain why the need to encourage private attorneys general has any applicability to the facts of this case.6 Moreover, Plain tiffs fail to mention that the equitable considerations listed in Christiansburg as reasons for not routinely awarding fees against plaintiffs read as if the Court was discussing the events which befell this Petitioner in this case. (See Christiansburg, 434 U.S. at 422, and our lead Brief at pp. 24-25). This latter point also dismantles the argument that in a contest between two plaintiffs, the losing plaintiff should pay the attorney’s fees of the winning plaintiff. (PI. Br. 16-17). Again, Plaintiffs fail to discuss the reasons given in Christiansburg for not assessing fees against plaintiffs, absent a showing that those plaintiffs had brought frivolous claims. We can think of no reason why those standards would not apply here, and certainly Plaintiffs have offered none. Accordingly, this argument must be rejected as well. argue for such a per se prohibition, and as noted above the District Court here did not feel free to make such a reasoned exercise of its discretion. 5 Indeed, all of Plaintiffs’ arguments regarding the need to encour age individuals to act as Title VII private attorneys general are generic, and do not deal with the extraordinary circumstances of this case. Regardless of how the issue may arise in other cases, this case obviously must be decided on the facts of this case. a - e 3 * * ^ 0 12 CONCLUSION The judgment below should be reversed and remanded with instructions to dismiss the claim for attorney s fees against IFFA. Respectfully submitted, Steven A. F ehr * W illiam A. J olley J anae L. Schaeffer J olley, Walsh , Hager & Gordon 204 West Linwood Boulevard Kansas City, Missouri 64111 (816) 561-3755 Attorneys for Petitioner Independent Federation * Counsel of Record of Flight Attendants April 18,1989 a - e 3 * * ^ 0 12 CONCLUSION The judgment below should be reversed and remanded with instructions to dismiss the claim for attorney s fees against IFFA. Respectfully submitted, Steven A. F ehr * W illiam A. J olley J anae L. Schaeffer J olley, Walsh , Hager & Gordon 204 West Linwood Boulevard Kansas City, Missouri 64111 (816) 561-3755 Attorneys for Petitioner Independent Federation * Counsel of Record of Flight Attendants April 18,1989