Warren E. Burger: We will hear arguments next in 76-545, United Airlines against McDonald.
Stuart Bernstein: Mr. Chief Justice.
Warren E. Burger: Mr. Bernstein, you may proceed.
Stuart Bernstein: May it please the Court. This case arises generally out of the same no-marriage rule which we had occasion to examine in the Evans case, but presents an entirely different question. The question here is the status of unnamed class members after denial of class by the District Court. This case is a corollary of American Pipe & Construction Co. versus Utah, 414 U. S. 538, decided by this Court in 1974. Because this relies so heavily on American Pipe, by which we don’t want to indulge, we would briefly state the circumstances there. In American Pipe, a class action was filed eleven days before the statutory period would have otherwise expired. The District Court ultimately denied class status on the basis of numerosity, so nine months after the suit was filed and leaving eleven days left for the statutory period to run, which includes it, I suppose. Within eight days, a number of interveners came in, attempted to intervene, and the District Court held intervention was untimely, because since class had been denied, the tolling which occurred on the filing of the suit was retroactively un-tolled and since the eleven days had long since expired, they were late. The interveners then appealed the denial of intervention. It ultimately came to this Court, and the Court held that on the filing examined the practice under Rule 23 prior to the 1966 amendments, one-way intervention problems and matters of that kind, and then stated as the general rule that when a class action is filed, it tolls the time limitations for all unnamed potential class members -- whether they were aware of the suit or unaware of the suit was a matter of indifference -- but that that tolling continued only until the motion to strip the suit of its class-action character was decided. Since that decision was made --
Speaker: Until it was granted.
Stuart Bernstein: The Court put it in terms of denied, sir, because it had been denied.
Speaker: The motion to strip the suit of its class-action character was granted.
Stuart Bernstein: Class status was denied, yes, sir.
Speaker: And then class status denied, that’s fine.
Stuart Bernstein: I double-negatived (sic) that. Forgive me, sir.
Speaker: Yeah. But it wasn’t until it was decided, it had to be.
Stuart Bernstein: That is correct. And class action having been denied, the statutory period began to run again; but since they had coming within eight days, they were timely and the interventions were allowed. In the case here, Ms. McDonald has come in three years after class-action denial; in fact, after the final order of dismissal upon which this suit was settled. Since the circumstances out of which the particular instance arise here, I am going to briefly recapitulate the history of the immediate litigation which gave rise to this case.
Speaker: Before you start on that, under the general rule of American Pipe, how much time remained after the denial of class-action status? How much time under the applicable statute of limitations?
Stuart Bernstein: Yes, sir. It is our position there were 62 days left…
Speaker: 62 days.
Stuart Bernstein: … and here’s the mathematics on that. At the time the suit was filed, it had to be filed within 30 days if my time’s right; yes, 30 days of receipt of the suit letter. It was filed two days short of the expiration date; thus, there were two days left. By the time class was denied, the statutory period had been enlarged to 90 days, and so we are deducting the 28 days from the 90 days, which leaves a net of 62 days that were left in our theory for Ms. McDonald to have acted.
Speaker: Mr. Bernstein, would you comment somewhere doing your argument on what seems to me some difference within American Pipe and this case, in that in American Pipe all the courts assumed that the District Court’s denial of class certification was correct. That was not challenged, and here the Seventh Circuit reversed the denial of class certification.
Stuart Bernstein: Yes, sir, I will get to that, and I think that is a critical point, because in our view the Seventh Circuit had no power -- and “power” is its term, not mine. I believe the Seventh Circuit had no power to decide that question, because it did not have a party before it. It first had to decide whether intervention was proper before it could get to that question. I will subsequently argue to the Court that the basis upon which the Court of Appeals decided that intervention was timely was improper; but the way the Court proceeded was to say, “We hold the intervention was timely here, because it wasn’t until after the final dismissal of this case that Ms. McDonald knew that the named claimants were not going to appeal class; therefore, it was timely. Now, we find it timely; therefore, we have the power to examine the question of class.” We say it’s just the other way around; the District Court held that intervention was untimely coming this late, and that that should have ended the case in our view and never gotten to the second point. There were two Notices of Appeal filed, one on the denial of an intervention and one on the class question. Our point was that once it… it should have gotten only to that first one, the proper decision should have been that it was not timely -- coming in three years late was not timely -- and therefore we never get to the second point. But I would like to develop that through the history of this litigation, if I may, please. As I indicated earlier, it was November of 1968 that United terminated the no-marriage policy. Two weeks later, a suit was filed against it, Sprogis suit, also referred to during the course of the evidence argument. It was an individual action filed by Mrs. Sprogis on her own behalf, claiming that the policy was a violation of the sex-discrimination provisions of Title VII. The District Court granted summary judgment in favor of Mrs. Sprogis; the Court of Appeals affirmed it in a two-to-one decision, and dissent was by Justice Stevens. This Court denied certiorari sometime in 1972. While these appeals were pending, while the appeal was pending of the Sprogis case, another suit was filed by the same counsel, making the same allegations; but now, it was a class action. This is the Romasanta case, and there it was alleged that the class would consist of all stewardesses who had been discharged under this policy and that the class numbered some 27 or 28. These are the allegations in the record in the complaint and in the record before you. The Court held this on the past case calendar pending the result of the appeal in the Sprogis case, which was then up before the Seventh Circuit. When Sprogis was decided by the District Court, the counsel for Mrs. Sprogis asked the Court to at that point make a class action out of it; that is, after the decision on the merits of Sprogis, which had been started as an individual case, be converted into a class case, and that was one of the issue on appeal, where after decision on the merits, an individual case action could be converted into a class action. The Court of Appeals said that the District Court had the power to entertain such a motion, but should be mindful of the principles of Rule 23. In a remand, then, Romasanta, the class-action case, Sprogis the remanded individual case on conversion of the class, motions were made then to consolidate those two cases by joint counsel. We resisted the motion to consolidate and the motion to convert Sprogis into a class action, and the Court granted our motion and did deny class relief in the Sprogis case. There were no attempted interventions at that time. Consolidation was denied, Sprogis was referred to a Special Master for a determination of a back-pay award and ultimately Mrs. Sprogis was granted some $10,000 in back pay. She had, incidentally, been back to work early in 1969. Shortly after she filed her suit, she was offered re-employment with seniority, and she did come back to work. It’s clear she had filed a timely charge under the act; there is no question of timeliness connected with that whatsoever. The Sprogis case was appealed, but not on the denial of class action; it was appealed on denial of attorney fees. The District Court refused to allow attorney fees in that case because of what it felt was some impropriety in the sponsorship of the litigation. That has no relevance to this case and no more need to pursue that, but attorney fees were denied. There was a cross-appeal on the question of the measure of damages and back pay, what duty did the discriminatee have to mitigate, and the Court had held that the burden was on United Airlines to prove that there was not due care exercised in mitigation rather than on the discriminatee to prove that, in fact, attempts had been made to mitigate. Well, all that held up the proceedings in the Romasanta case. When that was all out of the way, then we foiled a motion to strike the class-action allegations in the second case, in the Romasanta case, and in December 6th of 1972 Judge Powell did grant our motion, struck the class action generally on a theory that since its time had passed and since it was not possible to know whether a stewardess terminated did so because of the rule or despite the rule; and there was evidence, as I had indicated earlier, that many employees quit their employment or waited for discharge in any event and that it wasn’t necessarily because of the rule, but because of marriage. He found that there had to be some manifestation on their part that they really were interested in continued employment. But so he limited the class to those who had filed grievances or had taken some action before the Commission, the Federal Commission, the EEOC, or before some State agency, the New York Civil Rights Commission, the Illinois Fair Employment Practice Commission and so on. He then entertained intervention, provisions to intervene by 25 interveners, and he granted the intervention petitions of 13 and denied them as to the others. One of the other factors was that a number of the stewardesses had settled their claims, entered into settlement agreements with United. He said they were bound by those. Others had instituted litigation in other courts, and he didn’t permit those to come in. So he held the class to be a narrow one and, based on that holding, said that numerosity failed and, therefore, the intervention would be allowed; and as I say, 13 intervened, 12 were disallowed. There were no attempts to appeal the denials of intervention.
Speaker: The class certification was denied on the grounds that the identifiable plaintiffs were sufficiently small in number, the class action wasn’t warranted.
Stuart Bernstein: That’s correct, sir. That’s correct. There were no attempts to appeal the denial of intervention in that case. Counsel for plaintiffs did attempt a 1292(b) permissive appeal for the denial of class, and that was denied. But that appeal was by the named plaintiffs, not by the interveners who had been not allowed to intervene with respect to whom the case was over, and the order was final and with respect to whom an appeal would not have been interlocutory. No attempt at that time was made by Ms. McDonald to intervene. Well, then counsel for both sides entered into settlement discussions. They had some 13 interveners, 2 named plaintiffs at that time, and they tried to settle up their differences. There was no question then about the liability; that had already been settled in Sprogis in 71. The only question was how much back pay. And again, most of the reinstatements had been cleared out because of the earlier tender. Finally, in October 2 of 1975, three years later, an Agreed Order of Settlement was arrived at between counsel for both parties; back pay was agreed upon, and an order was entered by the Court dismissing the case with prejudice, reciting that the settlements had been agreed upon and that there were no further claims to be adjudicated; and as I say, the case was dismissed with prejudice. It was two weeks after that that Ms. McDonald first appeared. Now this would have been seven years after she was terminated, five years after the case started, and three years after class action was denied. She submitted an affidavit at that time, saying that when she was terminated in September of 1968, she didn’t do anything on her own behalf, because she knew other people were doing something about it and she was relying on them. Mr. Justice Rehnquist referred to the extraordinary foresight which might have been present in his questioning of Mr. Kessler earlier. But here was a great bit of foresight, because at that time, in September of 1968, this Court hadn’t decided in the Albemarle case that a class action was appropriate for back pay. The only decision in the area at that time was an August 1968 decision of the Fifth Circuit in Oatis versus Crown Zellerbach, which said you could have class action for reinstatement for injunctive relief, but not for back pay. So this was great prescience that was exercised Ms. McDonald in September of 1968 to do nothing on her own behalf and rely on other people. And as I indicated, the first suit filed two weeks later in November of 68 was an individual action, not a class action; the class action did not come until 1970. Well, now, what is the application in this circumstance of the principles of American Pipe? It is our position that when the Court denied class in December of 1962, at that time it was incumbent upon Ms. McDonald to act. Her affidavit says she knew that the Court had denied class, and her affidavit says, “I knew I was excluded from this case.” But she took no action. It is our position that when those 62 days ran out that she was time-barred; that if she wanted to get into this case, she should have acted within that period. She should have asked the District judge to modify the order, his ruling on the class motion; if it wasn’t suitable to her, he has the power to modify. In fact, he said when she came in three years later, ”Why didn’t she come in here earlier? Why didn’t she ask me to modify the order? Why didn’t she appeal at that time if she disagreed with me?” He said, “Litigation must end.”
Harry A. Blackmun: Your position necessarily would require persons having claims to flood into the District Court at that time.
Stuart Bernstein: Our position is that once class is denied, then an individual who is now no longer part of the class has to protect himself by what other means are available if he’s not part of that case.
Harry A. Blackmun: Well, one means is to wait for the named parties to take an appeal from the denial of the class certification.
Stuart Bernstein: Yes, but the named party may not do so, sir. There is no compulsion on the named party to do so, and --
Harry A. Blackmun: No, but that’s a risk he takes, and if he stands by and there is an appeal taken, he benefits by that appeal.
Stuart Bernstein: That’s correct.
Harry A. Blackmun: All I am saying is that doesn’t your position mean that these interveners must flood into the court and bury it under an …
Stuart Bernstein: But look at the contrary.
Harry A. Blackmun: … intervener. Do you want that?
Stuart Bernstein: Mr. Justice Blackmun, look at the contrary result. If you say that you can wait as long as you waited here and then do that very thing, it would seem to me that in terms of management of class actions, the problem that a trial court has -–
Harry A. Blackmun: It isn’t the very thing … well, I ask, is it the very thing? Isn’t what she wants here is the ability to appeal the denial of the class certification --
Stuart Bernstein: And the question is whether -–
Harry A. Blackmun: -- not to intervene.
Stuart Bernstein: Yes, sir. The question is whether she comes in too late to do that. That’s the question that we concede; that had the case not been settled, had the named plaintiffs stood on their … gone to trial and had an order on the merits that they could have appealed. But they put themselves in a position because of the settlement where they no longer could appeal, and counsel conceded that in open court. He said, “Having settled this, we are in no position to take the appeal.”
Speaker: Do you mean, all the members of the class had individually appealed?
Stuart Bernstein: No, sir. At the time of intervention, one of the unnamed class members intervening at that time could have done it. That’s all it would take.
Speaker: Could it save the whole class?
Stuart Bernstein: He had they intervened timely in 1962. Had they intervened in 1962, because if you play this out, what would have happened, then, they came in in shortly after -- let's suppose they came in within the 62 days after the class was denied. They say to the judge, “Your Honor, we’d like you to reconsider your ruling on the class; we think it ought to include us.” He says, “Yes,” then they’re in; he says, “No, I think not,” that is a final order they can appeal. That’s precisely what happened in American Pipe. That’s how the appeal came up in American Pipe before final order. Denial of intervention is a final order with respect to the party -–
Speaker: Well, a person can move to intervene in a lawsuit that's been dead ten years and the District Court is going to say no, and that person has a right to appeal from that denial of intervention. The answer was going to affirmed, but he nonetheless has a right to appeal.
Stuart Bernstein: Excuse, me sir. Then I misunderstood the question. Of course he has the right to intervene, attempt to intervene, and the Court has a right to rule on it, and he has a right to appeal back. No question about that. But then the question is, what standard does the Court of Appeals apply in determining the propriety of the District Court’s action in denying intervention?
Speaker: And the question is also whether in his effort to intervene late, that that person can raise any other issues by virtue of the fact that the case has been dead so long.
Stuart Bernstein: Well, that presents an interesting question here, because you heard Mr. Leven say in the Evans case something about her possibility of getting into the McDonald class. This really illustrates the problem. The class asked for in this instant case was of all discharged stewardesses. I’m told the class was some 27 or 28. During the course of that proceeding, the class asked for was all discharged stewardesses and all those who resigned under protest, by making some form of protest, because counsel for the plaintiffs in that case conceded that you couldn’t tell by the act of resignation whether it was voluntary or not, and so you’d require something more. Now, we come to the problem here where a class would be asked for which exceeds any class asked for by the parties in the original litigation. If this class is to encompass Ms. Evans, it broadens out what anybody has asked for to this point. Let's play it through. Let's suppose we send this back and say, “Well, Ms. McDonald can raise the point now.” The court was in error on the class determination and it decides that it will include something like Ms. McDonald, who was terminated without protest; but it doesn’t extend to anybody who resigned without protest. We play through the whole thing again, we get to the same stage, it's also over, and then Ms. Evans come in again another ten years from now and says, “Well, how about me? That class determination was wrong.” This can go on indefinitely, simply as a practical matter of how to handle the litigation and class suit.
Speaker: It is also a little distinction in concept, isn’t it, in that denial of a motion to intervene is an appealable order under the appropriate provisions of 28 U.S.C.? So you don’t say that the District Court is without power to entertain it; you just say that the District Court ought never to grant it.
Stuart Bernstein: Well, we say the District Court didn’t grant it and that the Court of Appeals should have affirmed it. What happened, though, is, the District Court said, ”This matter has been in litigation for five years. Litigation must end. This lady has never saw fit to come in here before, and I must deny the motion.” I think that is very proper for the court to say after the case has been going on that long and he has two weeks earlier signed an Agreed Order of Dismissal. That is the circumstance we are in. Some of the issues we allude to here, if the Court please, were considered by the Fifth Circuit in the court in the case of Pearson versus Ecological Science Corporation. The case arises as a fraud securities case presenting some of the similar issues; where a class was denied, the settlements were worked out, and then somebody tried to upset the settlement; in fact, one of the persons who was denied intervention on the grounds of timing attempted to intervene in a certiorari petition which was pending in this Court to review the power of a Circuit Court to review the denial of class by the District Court, very confused litigation.
Speaker: Let me ask you one more question, Mr. Bernstein.
Stuart Bernstein: Yes, sir.
Speaker: Suppose you have another hypothetical case where the effort to intervene is five years after a settlement and the District Court says, “No, you can’t intervene.” Is the proper reason for that decision simply a weighing of timeliness factors under the rule, or is it that, in fact, there is no case in which to intervene?
Stuart Bernstein: Well, I suppose five years is a different circumstance in intervening within thirty days, -- during which time there is a statutory appeal period.
Speaker: But you can’t appeal until you intervene, can you?
Stuart Bernstein: That is correct, yeah. That is correct.
Speaker: So isn’t there something what Judge Pell said about if she was going to get in, she had to get in by a motion to alter or amend the judgment?
Stuart Bernstein: Yes, sir. We obviously agree with Judge Pell’s reasoning, because he agreed with us, in that he said she should have come in after that, taken appropriate action and, if she wasn’t availing, she should have appealed then, and we would have been done with this three years ago.
Speaker: Well, I misunderstood you. You can appeal if you’re denied intervention.
Stuart Bernstein: Yes, of course, Your Honor; of course. The question is, what standards of review does the Court of Appeals apply in reviewing the denial of intervention by the District Court? We never challenged the right of the intervener here, the attempted intervener, to appeal the denial of intervention. What we did challenge was the notice to appeal the review of class action, because our position was, until you decided you had a proper intervener, you’ve got no party before the Court to properly challenge the class denial. The Court of Appeals took that step, but we say the standards that applied in determining that the intervention was timely or improper. We say that the time limits had long since run out on this and that certainly for a District Court to say that you come in five years after this has started and three years after I have entered my order, you are too late. It’s a proper exercise of discretion by the trial judge.
Speaker: Well, is it clear that intervention must take place before the running of statute of limitations on the original cause of action?
Stuart Bernstein: In our view it does; in our view, sir I think this is how we read American Pipe, because in American Pipe clearly what the court said was that you came in timely because you came in on the eighth day and eleven were left. The clear implication was if you came in on the twelfth day, you’re too late.
Speaker: What about when a case is on appeal?
Stuart Bernstein: Pardon me, sir?
Speaker: You can intervene when a case is on appeal.
Stuart Bernstein: But then you have a party who is a proper appellant. If the case is already on appeal, you must have an appellant. Our point is that if you are not a proper intervener, then once that is determined, there is no appellant. The main plaintiffs here could not appeal. They have settled the case. I think whether they couldn’t appeal or didn’t want to appeal is a matter of no legal difference, because it was their case to control. Once class was denied, Moore says that once the motion to strip the case of its class-action status is granted, it’s no longer a class-action case. That being so, there is no class representative. What the Court of Appeals said was, that until the champion of the class advocated, the motions were timely; but once class was denied, there was no class anymore. There was no champion. As we said in our brief, the champion did not abdicate in 75; the champion was dethroned in 72. There was no class anymore. What the Court of Appeals, in effect, says, that class denial has no meaningful effect in the management of class-action litigations, because with whom are you going to settle? You have a group, a finite group; you have interveners who came in here. We have 15 people to deal with. We know the parameters of our case; we know what we are subjected to; if we have to go to trial, what are our proof problems; what are our defenses. We know who these people are, because we are talking now only about back pay, because we already settled the legal issue of liability in the prior litigation. But you say, ”Well, you’ve got to wait, fellows. You’ve got to wait until this is all over.”
Speaker: Would your argument be the same if the respondent here had filed an affidavit and said, “I didn’t know what happened to the case”?
Stuart Bernstein: No, sir, it would be identically the same, and that’s the issue this Court faced in American Pipe -- should it make a difference that you know or don’t know -- and what this Court said is, “The statute will toll for everybody.” We have a uniform, clear rule. Otherwise, how you are going to settle these things? The Court of Appeals’ test is purely a subjective one; when did you know, when did you first learn, that the champion of the class is going to advocate? Well, are you going to have a hearing on that, did they tell me, or were we in communication; did I have a duty to communicate; how did I find out; did I happen to run into the lawyer in the street; how do I know that? Your rule is a very simple rule; once class is denied, the clock begins to run again. The rule proposed by the Court of Appeals is an unmanageable rule. We simply don’t know. We have to have another evidentiary hearing on how did we find out. What it says is that maybe it is timely for some class members and not for others.
Speaker: It's whether or not it’s a controllable size of class with 20-something people.
Stuart Bernstein: Well, that’s present -- that is going to be --
Speaker: You could have been required to notify them.
Stuart Bernstein: Well, there is some question, Your Honor. Counsel, I think, disagreed with me as to the size of the class, and we had occasion to comment in our brief about the statements about how large the class really is. The Complaint alleged 27 or 28, but he claims it may be as many as 160. I’d like to reserve the balance of my time?
Speaker: I want to ask Mr. Bernstein first about that.
Stuart Bernstein: Yes, sir?
Speaker: Does your question as presented in your Petition, you presented only one question, didn’t you? That was the American Pipe question.
Stuart Bernstein: Yes, sir.
Speaker: Does the question of the timeliness of intervention, is that subsumed in this?
Stuart Bernstein: Yes, sir, I believe it is. I believe that because intervention can only be on the Rule 24, and there is no way you can get around that. When you talk about intervention and timeliness, you must be talking about Rule 24. Either intervention is a matter right under 24(a) or permissive under 24(b).
Speaker: That’s why you didn’t expressly present that.
Stuart Bernstein: Yes, that’s correct. If you’ll examine our Petition, you’ll see that we do allude to that precise point.
Speaker: I know you did. But there is only the single question and effective --
Stuart Bernstein: That’s correct. We think it is subsumed in it. We referred to Justice Blackmun’s comments in American Pipe about the problem of sleeping on your rights and using this as a vehicle.
Speaker: Of course if you’re right, Mr. Bernstein. I suppose there could never be any review of the propriety of the denial of class status, because if two or three members of the class had intervened promptly in a timely fashion within the 62 days, you would have just settled with them, and then nobody would appeal…
Stuart Bernstein: Not so, sir. If Ms. McDonald had --
Speaker: … the way you settled with the original plaintiffs.
Stuart Bernstein: May I be heard, sir? The group that we are talking about are those who were excluded. If they were within the parameters that the judge decided was an appropriate class, but failed for numerosity, certainly they could intervene, as the 13 did. But let’s suppose it's one of those who was excluded, as Ms. McDonald was. Then she comes in and attempts to get the class order modified which lets in those in her category, in her subclass, or she appeals it right then, because it's a final order. Certainly there could be review. There could be review at that point. If Miss McDonald attempted to intervene within the timely period and that intervention was denied by the Court because she didn’t come within the parameters of the group as he defined it, she can appeal that and the reason for that denial, certainly.
Speaker: Well, generally speaking the grant or the denial of class action is non-appealable until after a final judgment.
Stuart Bernstein: Excuse me, sir. It is not appealable by the main parties; but attempted interveners who were denied intervention can appeal, and that’s what happened in Monarch Asphalt, the case to which we referred.
Speaker: Appealed the denial of intervention.
Stuart Bernstein: The denial of intervention, but that --
Speaker: I suppose that is automatically appealing the non-inclusion in the class.
Stuart Bernstein: The reasons, the reasons for denial of intervention either are you’re too late, or you’re not part of the class. If it's not part of the class, we have to examine that.
Speaker: But of course if you intervene, you don’t need to be part of the class.
Speaker: Exactly.
Stuart Bernstein: If you intervene and intervention is accepted, that is correct. But if you are denied intervention, you appeal the denial of intervention; and if you were denied intervention because you didn’t come within the group that the judge thought was permissible to be in that suit, you then have appealed the judge’s determination of that question.
Speaker: Well, what happens to a member of the class who knows he is a member of the class and knows the lawsuit’s there and, without his knowledge at all, the champion tells the defendant, “If you’ll give me twice what I asked for, I will not oppose the denial of the class-action point” and then the non-champion doesn’t hear anything about that he really gets it, doesn’t he?
Stuart Bernstein: The fact is that when a class --
Speaker: How could he stop that?
Stuart Bernstein: Yes, sir. May I answer it?
Speaker: Of course.
Stuart Bernstein: When the class action is started, the unnamed people are in the same position; they are relying on what somebody else is going to do. They also once class is denied have the obligation to protect their own interests, because there’s no longer a class vehicle, and the named plaintiffs who remain have no fiduciary obligation to the unnamed class members. The charge of sellout, sale of appeal rights, was made in the Pearson case, made by the SEC as amicus, and the Court rejected that on the ground that there is no duty anymore; the class is over, it's up to you to act to protect yourself. Otherwise, class litigation will never end. It will go on indefinitely. As in this case it went on for five years, it will go on another five and, as I indicated somebody else can come in and say, “Well, you’ve excluded me, too.” There’s simply no end. Thank you very much.
Speaker: Very well, Mr. Bernstein. Mr. Meites?
Thomas R. Meites: Mr. Chief Justice, may it please the Court. The notion that this case involves American Pipe, we think, is misplaced. We think this case involves a very conventional kind of intervention question under Rule 24. American Pipe was a case where the persons excluded by the class ruling determined they wanted to bring individual actions. They brought individual actions, they chose to bring them in Utah in the same form as American Pipe had pending. This Court held in American Pipe that those persons had the benefit of a tolling during the pendency of the class action or until the class was adversely determined and, since they filed within eight days of that, they were timely. But those interveners took the case as they found it. As far as the records go of the lower court decisions, they were not interested at all in challenging the adverse class ruling. It was by an experienced judge who had handled a number of similar cases, and apparently it seemed to them that his reasons were pretty good. Instead of taking a chance on a procedural appeal years later, they came into that court and said, “We will hazard our luck in that form.” We took just the opposite track. In this case, we relied on our class champions until final judgment was entered; we then learned that they were going to abandon us. At that point, we only had one choice; we had to continue this case through appeal. That’s exactly what we did. We took the case as we found it with whatever inadequacies it might have had as far as timeliness or the measure of remedy that had been determined in earlier phases, and we staked our all on continuing that case through appeal.
Speaker: You could have just brought your own lawsuit as individual plaintiffs, couldn’t you?
Thomas R. Meites: We never filed our own EEOC carriage.
Speaker: That’s what you said.
Thomas R. Meites: So we could not but for the umbrella of this case.
Speaker: I see.
Thomas R. Meites: Now, I think Mr. Bernstein is correct. I think we only had 2 days to file it; but even if we had 62, we could have gone into the Northern District of Illinois, paid our $15 and filed our own case, or we could have tried to intervene in the existing case. We didn’t do either of those.
Speaker: That would have been what the members of the class in American Pipe did.
Thomas R. Meites: That is right. Mr. Bernstein said we had to do that, and I submit that’s not compelled by American Pipe.
Speaker: Well, what you originally said was, you had no choice, you couldn’t do that, and I didn’t understand what --
Thomas R. Meites: We could have done that.
Speaker: You said you had no alternative but to do what you actually did in this case.
Thomas R. Meites: No, no. Once we had not done that, once that 2 days passed or the 62 days had passed, the only thing left for us to do after our the class champions abdicated was to continue this case through appeal. There was no other choice. Now, in December 19 --
Speaker: After the 62 days had elapsed.
Thomas R. Meites: That’s right.
Speaker: Well, that doesn’t give you any rights. I’m sorry, but you can't do anything else.
Thomas R. Meites: After the statute of limitations has run.
Speaker: That doesn’t give you any right to do so.
Thomas R. Meites: No, I don’t think it confers additional rights because of the statute, and I’d see it the other way around.
Speaker: I don’t understand why didn’t you try to intervene.
Thomas R. Meites: Well, I think there are a number of reasons we didn’t. First of all, we were represented at that point by the lawyers who had demonstrated their competence to carry this case through its conclusion. They had brought the original Sprogis case, the case on liability. They had attempted to convert that case into a class case. They’d persuaded the Seventh Circuit that that was proper. Unfortunately, on remand the District Court judge decided he wouldn't do it. The next step they took was to try to get class treatment in this case.
Speaker: And that failed.
Thomas R. Meites: When that failed, they attempted to get interlocutory review from the Seventh Circuit. That failed, as well. At that point Ms. McDonald was represented by lawyers who had lived with this case for four years who had taken every possible step available to them to represent her interests, and they had given her every indication they would continue to represent her interests through appeal and, of course, that if she had --
Speaker: Well, why didn’t they during those four years intervene?
Thomas R. Meites: Throughout, until final judgment was entered on October 1975, she was fully represented by them. If she had intervened, first of all, if she had come to me in December 1972 and said, “Mr. Meites, should I petition to intervene, or should I continue the case as I found it?” I would have to advise her to do exactly what she did. The choice on the one side where she is represented by competent counsel at no expense to herself who had given every indication of doing a crackerjack job.
Speaker: Now, is competent counsel counsel that let somebody else do the work?
Thomas R. Meites: No. No, it's more than that. It is counsel that had demonstrated that they are working for her interests. They brought it as a class action, they took every possible step they could to maintain it as a class action. Judge Perry had ruled that he would not permit someone like Mrs. McDonald to intervene; so if she tried to intervene in 1972, it would have been denied.
Speaker: And she could have appealed.
Thomas R. Meites: She could have appealed with the additional --
Speaker: Which is what she is trying to do now.
Thomas R. Meites: No, no, it is not. If she had appealed in 1972, perhaps the Seventh Circuit would have reversed; perhaps they would not have. They might have found that that ruling for a number of reasons was correct as to her. She would then, I think, be out of the box. Mr. Bernstein will be arguing today that res judicata foreclosed her later action. Let’s say she succeeded on that appeal. She would’ve gone back, and Judge Perry would have let her in the case. She would have won, I imagine. But at the end of the case, there’s no reason that Mr. Bernstein and his clients would not have been able to settle with her and she would not be interested in appealing. If she --
Speaker: If she sought intervention and had intervened, had been permitted to intervene …
Thomas R. Meites: She would not have been permitted to intervene. Judge Perry in his ruling of December 6 said he would not permit anyone to intervene who had not individually protested.
Speaker: But she could have filed the petition to intervene and had it denied.
Thomas R. Meites: And then appealed. And if she had done that, she would have been no better off than where she ended up and where everyone else in this case ended up.
Speaker: But she wouldn’t have been in it with them.
Thomas R. Meites: Oh, yes, she would have. The case would have been delayed --
Speaker: How could she spin the words off and not gotten anything?
Thomas R. Meites: No, she would have received relief.
Speaker: I mean, what’s the natural …
Thomas R. Meites: The delay in for her to get that relief. In December 1972, the Seventh Circuit had approximately a two-year backlog in hearing oral arguments. If she had filed that Petition to Intervene, I suggest that the Defendants would have stayed the main case pending the appeal, because the intervention appeal might have changed the dimensions of the case in the trial court. Two years would have been wasted where not one stewardess would have been able to go back to work and go flying.
Speaker: Mr. Meites, you say that the client you now represent then was actually represented by the Romasanta lawyers?
Thomas R. Meites: Only in the sense that every absent class member is represented by the named plaintiffs and their attorneys, not -- there was no direct representation.
Speaker: No formal engagement. I would think otherwise, she might certainly have a claim against them.
Thomas R. Meites: No, I meant only to suggest that she and everyone else were represented by these people who were working as hard as they were on her behalf, attempting to get class treatment. The rule that United advocates would compel every single excluded class member to walk into a district court. Everyone has to press their own claims within 2 days or 62 days or before foreclosed. This would effectively mean that when the case was over, the adverse class ruling would have been shielded from review. There is no real suggestion that someone seriously wants 5,000 people in a large case to walk in, file their individual Petitions to Intervene with their individual attorneys; but if you adopt a rule supposedly compelled by American Pipe, I do not see how you can avoid that result. We do not advocate any rule at all. I think all we see this case involves is applying the rule this Court announced in NAACP v. New York; that timeliness is determined from all the circumstances. The single most important circumstance here is not the case took two years, took five years or seven years. That is largely because the Seventh Circuit has not permitted interlocutory appeals of adverse class rulings.
Speaker: But you are assuming that the application to intervene took place before the entry of a final judgment when you advert to NAACP v. New York, aren’t you? There is a law, it seems to me, that you put your intervener in a little more favorable position than you do your party when you say that if a party gets a judgment on the merits, part of which she likes and part of which she doesn’t, he has 30 days, no ifs, ands or buts, to appeal the disadvantageous part to the Court of Appeals. You are saying in effect that an intervener who is in the same position as that party can come in five years later and under kind of a flexible timeliness standard get appeal to the Court of Appeals on that same kind of issue.
Thomas R. Meites: No, I don’t think that I’m saying that. When we filed our Notice of Appeal within 30 days of the entry of the final judgment, our filing the Notice of Appeal did not slow this case down one jot. Admittedly, we appealed, not the named plaintiffs; but we did not file five years after final judgment, we filed 18 days after final judgment. We filed within the original 30 days -- before the 30 days for the plaintiffs to appeal would have expired. If we come in five years later in 1982, I imagine I’d have a very difficult time persuading you that I was not out of time.
Speaker: But you say that even if you’d come in 5 years later, you would not be barred by the 30-day rule.
Thomas R. Meites: I don’t know. I had a very real problem when I was preparing the papers for the intervention. I was concerned that Judge Perry would not decide our Petition to Intervene within 30 days, and I frankly didn’t know whether I could go ahead and file a Notice of Appeal before my Petitioner to Intervene was decided. Well, fortunately, he decided the day I filed it, and I filed my Notice of Appeal and the Petition the next day. The question you’re raising is a difficult question. It's not because of the way this case was resolved posed by this case. I think that Mr. Bernstein’s argument turns ultimately on the Court being asked to put on a set of blinders only to one factor, the factor of when mechanically a statute of limitations applied to an individual action might run. I think --
Speaker: But doesn’t it really come down to … put it this way. American Pipe was concerned with the question of what tolling effect, if any, the pendency of an alleged class action that was later not certified as a class action, what tolling effect it had upon the statute of limitations. That was the question in American Pipe. Here, isn’t the first question to be asked is whether or not intervention has to take place within the period provided by the statute of limitations. And does it or doesn’t it, the Rule 24 just says “timely”.
Thomas R. Meites: Rule 24 does not answer that.
Speaker: It says “timely”, doesn’t it?
Thomas R. Meites: And I suggest that the answer is, when the intervention is not for purposes of pressing an individual case …
Speaker: An individual plaintiff’s case.
Thomas R. Meites: But for the purposes of taking the case as you find it and continuing it through appellate review of the class determination, the answer is, no. The statute of limitations really has nothing to do with it.
Speaker: Is there any law on this …
Thomas R. Meites: As far as I can tell --
Speaker: It is like, it seems to me, is the preliminary and dispositive question.
Thomas R. Meites: In all the timeliness of intervention cases, the statute of limitations plays virtually no role.
Speaker: That’s what I thought.
Thomas R. Meites: That’s what I said in my --
Speaker: It did in American Pipe, because these were … these unnamed-class people who were held not to be a class, only because they were not … the class was not too numerous, came in as original plaintiffs, and they virtually conceded that they had to come in within the period, within the limitations’ period; and the question was, how much of that period had been tolled. That was the only question.
Thomas R. Meites: That’s correct.
Speaker: And they, as I say, as I remember in that case, it was conceded that they had to come in within the limitations’ period as original plaintiffs. But is it generally true that there has to be intervention within the appropriate limitations’ period?
Thomas R. Meites: No, there are a number of cases -- most of them actually come from the D.C. circuit -- where intervention after judgment has been allowed.
Speaker: Well, it could be after judgment, but still within the limitations period.
Thomas R. Meites: No, and as far as my reading of those cases goes, there is never a discussion of the statute of limitations. All I can --
Speaker: I don’t remember much discussion, either.
Thomas R. Meites: So all I can conclude is that until this case, no one has suggested the timeliness in Rule 24 means as defined by a statute of limitations may or may not have run as to an individual action.
Speaker: Well, isn’t that really the first question to ask in this case?
Thomas R. Meites: I think it is. I think that that distinguishes -- not “distinguishes”; but American Pipe shouldn’t even be distinguished; it is about a different kind of situation. I don’t think this Court has been faced until this case with an intervention-after-judgment case; but I don’t think it represents anything radically new. I think that it’s a timeliness case under NAACP v. New York.
Speaker: Rule 24 just says “timely”.
Thomas R. Meites: That’s right. And as construed by this Court, that means you look at all the circumstances and you ask yourself, did the intervener act reasonably? In this case, the Seventh Circuit found, first of all, that she acted as soon as her class champions had indicated to her that they would no longer continue to advance her interests. Secondly, they concluded there was no prejudice to United. United knew, or should have known since this case was filed and it’s based on substantial exposure to a great number of people. It had decided to run its airline on a policy of having primary services, it took a risk. The law was changed; but three years after that law was changed, it persisted in its policy. It's a mature business corporation, and if it lost, it lost. When this suit was filed, I think it had no doubt that it faced substantial exposure. The only difference about this case is that the appeal was prosecuted not by Romasanta, but by McDonald. There is no other difference as far as I can see in where we are today. The second point that Mr. Bernstein made which troubled me is the notion that somehow what we did will impede settlements; that somehow it's only possible for defendants to settle these cases if they can buy off the right of appeal. Well, I suggest to this Court that that’s not the kind of settlement that should be encouraged on any kind of case and certainly not in Title VII, where Congress has made clear and this Court has made clear that every effort should be made to accord class-wide relief. And in fact, in this case, the named plaintiffs in no way sold out their right to appeal. There’s not one word in the settlement agreement that they promised not to appeal. The usual way you handle this, I’m informed, is, you hold off paying out the money till 31 days have expired. In this case, they paid all the money over before.
Speaker: If a plaintiff and a defendant agree to enter into a settlement agreement and stipulate that the Complaint can be dismissed or that in the Northern District of Illinois the plaintiff can appeal from that?
Thomas R. Meites: I think that the defendant could perhaps move to dismiss on the grounds of breach of contract, or lack of standing to prosecute the appeal. That’s an interesting case. I don’t know of any instance where it’s been done.
Speaker: Well, I’ve never heard of anybody’s suggesting that someone who has settled and entered into a stipulation for dismissal of his Complaint upon receipt of a sum of money and get that sum of money could appeal.
Thomas R. Meites: Well, it could be done. I imagine it would be subject to a Motion to Dismiss which would succeed. But in this case, it was not done. There was not one word in writing or in fact in which that these named plaintiffs said, “We will not prosecute an appeal for the absent class members.” I can’t imagine an attorney ever agreeing to that, and if he did, he’d be a fool to put it in writing.
Speaker: But they didn’t agree.
Thomas R. Meites: Sir?
Speaker: The fact is, they did not.
Thomas R. Meites: They decided after a final judgment not to appeal.
Speaker: Well, isn’t that all that’s necessary?
Stuart Bernstein: For as far as their right to prosecute the appeal, it ended it. But, I don’t think that their decision ended our opportunity to bring this case to its conclusion.
Speaker: Well, who was that, the class?
Stuart Bernstein: On behalf of the class, it was.
Speaker: But according to Mr. Bernstein, the class didn’t exist anymore.
Stuart Bernstein: Well, and I can say to him that the class exists now, because the Seventh Circuit ruled it did. It's a metaphysical discussion, I think, to say that for three years there was a class originally, then for three years it ceased to exist, and now it's back again. I think the only way to look at it --
Speaker: Well, the only reason it’s back again is because you’re putting it back. They’re not putting it back.
Stuart Bernstein: Well, they wouldn’t want it.
Speaker: That’s the last thing they want to do.
Stuart Bernstein: But I think the only way to look at it is, once the Seventh Circuit has ruled, it’s, I suppose, a nunc pro tunc order. We’re back as if the ruling hadn’t been made, the erroneous ruling hadn’t been made in the first place. I suppose that if you look at this kind of case over the course of a decade, from 1968 to 1977, you wonder if there isn’t a better way of handling this; and I suppose there must be, because I don’t think a case should go on this long. But if you look at each step along the line, I think you can explain why it happened that ten years after the cause of action arose, we’re still in a court and we’re a long way from a remedy. But I suggest that none of those reasons are sufficient to hold that the people who are injured by United Airlines’ wrongdoing should never get appellate review of an erroneous class order, and they should never get the relief that it seems to me they have been entitled to for the last decade. It's not our fault that we are here today. It's not our fault that we were fired. I don’t think it’s anybody’s fault. I think that all the Court need find, as the Seventh Circuit did, is, we have acted reasonably in light of what we knew and in light of what the law said we should do, and I suggest the decision below should be affirmed. Thank you.
Warren E. Burger: Thank you, gentlemen. The case is submitted.