Independent Federation of Flight Attendants v. Zipes Reply Brief for Petitioner

    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