Table of Authorities

Cases Page(s)

Alaniz v. Tillie Lewis Foods,

572 F.2d 657 (9th Cir. 1978).................................. 5, 17, 30, 31

All. for the Wild Rockies v. Savage,

897 F.3d 1025 (9th Cir. 2018)................................................. 18

Allied Concrete & Supply Co. v. Baker,

904 F.3d 1053 (9th Cir. 2018)................................................. 29

Already, LLC v. Nike, Inc.,

568 U.S. 85 (2013)................................................................ 2, 19

Arduini v. Hart,

774 F.3d 622 (9th Cir. 2014)................................................... 41

Canatella v. California,

404 F.3d 1106 (9th Cir. 2005)................................................. 21

Citizens for Balanced Use v. Mont. Wilderness Ass’n,

647 F.3d 893 (9th Cir. 2011)............................................... 3, 17

Clark v. City of Seattle,

899 F.3d 802 (9th Cir. 2018)................................................... 18

Clements v. Airport Auth.,

69 F.3d 321 (9th Cir. 1995)..................................................... 41

DBSI/TRI IV Ltd. P’ship v. United States,

465 F.3d 1031 (9th Cir. 2006)................................................. 20

EEOC v. Pan Am. World Airways, Inc.,

897 F.2d 1499 (9th Cir. 1990)........................................... 34, 35

E.V. v. Robinson,

906 F.3d 1082 (9th Cir. 2018)................................................. 41

Gen. Tel. Co. of the Nw., Inc. v. EEOC,

446 U.S. 318 (1980)................................................................... 36

Hernandez v. Baker,

727 F. App’x 450 (9th Cir. 2018)............................................ 24

Hydranautics v. FilmTec Corp.,

204 F.3d 880 (9th Cir. 2000)............................................. 38, 40

In re Ashford Hotels, Ltd.,

226 B.R. 797 (Bankr. S.D.N.Y. 1998)...................................... 9

In re Tower Park Props., LLC,

803 F.3d 450 (9th Cir. 2015)................................................... 40

Kirschner v. Blixseth,

667 F. App’x 643 (9th Cir. 2016)............................................ 38

Latin Am. Law Enf’t Ass’n v. City of Los Angeles,

29 F.3d 633 (9th Cir. 1994)..................................................... 30

League of United Latin Am. Citizens v. Wilson,

131 F.3d 1297 (9th Cir. 1997)................................................. 14

Leisnoi, Inc. v. United States,

313 F.3d 1181 (9th Cir. 2002)................................................. 21

Molloy v. Wilson,

878 F.2d 313 (9th Cir. 1989)............................................. 24, 27

NAACP v. City of New York,

413 U.S. 345 (1973)................................................................... 18

Peruta v. Cty. of San Diego,

824 F.3d 919 (9th Cir. 2016)................................................... 30

ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund,

754 F.3d 754 (9th Cir. 2014)............................................. 41, 42

St. Anthony Fish Farm, Inc. v. Multi-Nat’l Invs., LLC,

476 F. App’x 149 (9th Cir. 2012)............................................ 38

Wabakken v. Cal. Dep’t of Corr. & Rehab.,

801 F.3d 1143 (9th Cir. 2015)................................................. 38

W. Coast Seafood Processors Ass’n v. Nat. Res. Def. Council, Inc.,

643 F.3d 701 (9th Cir. 2011)........................................ 2, 19, 20

Wilderness Soc’y v. U.S. Forest Serv.,

630 F.3d 1173 (9th Cir. 2011)................................................. 29

Wolfe v. Idaho Dep’t of Corr.,

698 F. App’x 385 (9th Cir. 2017)............................................ 24

United States v. Alisal Water Corp.,

370 F.3d 915 (9th Cir. 2004)................................................... 30

United States v. Oregon,

913 F.2d 576 (9th Cir. 1990)................................................... 12

United States v. Sanchez-Gomez,

138 S. Ct. 1532 (2018).......................................................... 2, 19

United States v. Sprint Commc’ns, Inc.,

855 F.3d 985 (9th Cir. 2017)................................ 19, 20, 21, 22

United States v. Washington,

86 F.3d 1499 (9th Cir. 1996)................................................... 15

U.S. ex rel. Silingo v. WellPoint, Inc.,

904 F.3d 667 (9th Cir. 2018)................................................... 41

U.S. ex rel. McGough v. Covington Techs. Co.,

967 F.2d 1391 (9th Cir. 1992)........................................... 30, 31

U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc.,

971 F.2d 244 (9th Cir. 1992)..................................................... 7

Yniguez v. Arizona,

939 F.2d 727 (9th Cir. 1991)................................................... 30

Statutes

28 U.S.C. § 158(a)................................................................................ 10

28 U.S.C. § 1291................................................................................... 10

29 U.S.C. §§ 621 et seq........................................................................ 35

29 U.S.C. § 626(c)(1)............................................................................ 35

42 U.S.C. §§ 2000e et seq...................................................................... 1

42 U.S.C. § 2000e-5(f)(1).......................................................... 1, 28, 35

42 U.S.C. § 2000e-5(f)(3)....................................................................... 1

42 U.S.C. § 2000e-6................................................................................ 1

42 U.S.C. §§ 12101 et seq...................................................................... 1

42 U.S.C. § 12117(a)................................................................. 1, 28, 35

Rules

Fed. R. App. P. 4(a)(1)(B)(i)..................................................... 3, 21, 25

Fed. R. App. P. 4(a)(4)(A)(iv)................................................... 3, 24, 26

Fed. R. Civ. P. 24(a)...................................................................... 28, 29

Fed. R. Civ. P. 60(c)(1)........................................................................ 23

Fed. R. Civ. P. 60(c)(2).................................................................. 23, 26

Statement of Jurisdiction

The Equal Employment Opportunity Commission (“EEOC”) brought an enforcement action against Defendants-Appellees American Airlines, Inc., and Envoy Air, Inc. (collectively “Airlines”), in the United States District Court for the District of Arizona. That enforcement action was based on the Americans with Disabilities Act of 1991, 42 U.S.C. §§ 12101 et seq. (“ADA”). District Court Docket No. (“D.Ct.R.”) 1. It was resolved on November 15, 2017, by the district court’s entry of a consent decree setting out the terms of settlement between the parties. Supplemental Excerpts of Record (“ER”) 6; ER 7-41. The district court had subject-matter jurisdiction under 42 U.S.C. § 12117(a), which incorporates by reference the powers, remedies, and jurisdictional provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”). See 42 U.S.C. §§ 2000e-5(f)(1), (3); 2000e-6.

This appeal arises from Lawrence M. Meadows’ untimely attempt, pursuant to Federal Rules of Civil Procedure 19 and 24, to intervene in the EEOC’s enforcement action against the Airlines. Meadows first sought to intervene in this action several months after the district court entered final judgment and the time for either party to file an appeal had lapsed. See ER 6; D.Ct.R.11 (Meadows’ March 28, 2018, motion to intervene).

Accordingly, this Court lacks appellate jurisdiction over this matter because Meadows’ appeal from the district court’s denial of his motion to intervene is moot. “An appeal is moot if there exists no present controversy as to which effective relief can be granted.” W. Coast Seafood Processors Ass’n v. Nat. Res. Def. Council, Inc., 643 F.3d 701, 704 (9th Cir. 2011). “A case that becomes moot at any point during the proceedings is no longer a ‘Case’ or ‘Controversy’ for purposes of Article III, and is outside the jurisdiction of the federal courts.” United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1537 (2018) (quoting in part Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)). Because, as described more thoroughly below, see infra pp.18-27, Meadows sought to intervene long after the controversy between the parties had been resolved in this case, there is no live controversy as to which he may be granted any effective relief.

Should this Court disagree that Meadows’ appeal is moot, it would have jurisdiction under 28 U.S.C. § 1291. See Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 896 (9th Cir. 2011) (district court’s denial of a Rule 24 motion to intervene as of right is a final appealable order). On April 24, 2018, the district court entered its order denying Meadows’ motion to intervene, ER 1-4. On May 22, 2018, Meadows filed a motion for reconsideration under Federal Rule of Civil Procedure 59, D.Ct.R.26, and on May 24, 2018, the court denied Meadows’ motion for reconsideration, ER 5. On June 22, 2018, Meadows filed his notice of appeal. ER 184-85; see Fed. R. App. P. 4(a)(1)(B)(i), 4(a)(4)(A)(iv).

Statement of the Issues

1. Whether this Court lacks jurisdiction over Meadows’ appeal because the appeal is moot.

2. Whether the district court acted within its discretion in concluding that Meadows’ motion to intervene was untimely.

3. Whether Meadows’ objections to the consent decree and proposed amended consent decree are barred by the doctrine of collateral estoppel, are directed at matters already resolved favorably to Meadows, or are otherwise without merit.

Statement Regarding the Addendum

An Addendum containing pertinent civil and appellate procedural rules is attached to this brief.

Statement of the Case

1. Statement of facts

In 2009, the EEOC began what ultimately became a six-year investigation into charges alleging the Airlines had discriminated against their employees in violation of the ADA. See ER 164-65. In 2015, the EEOC determined that it had reasonable cause to believe the Airlines had violated the ADA on a nationwide basis from as early as January 1, 2007. See ER 180-83. The Airlines’ violations included, among other things, refusing to provide employees with reasonable accommodations in their positions; requiring employees to be without medical restriction or 100% healed in order to return to work; and refusing to provide reassignment as a reasonable accommodation, including refusing to assist disabled employees with identifying suitable positions for reassignment within the company and forcing them to compete for vacant positions. See ER 181-82.

After the EEOC made its determination, it engaged in arm’s-length negotiations with the Airlines for two years—a process that resulted in the parties reaching an agreement to settle the matter through entry of a consent decree in district court. See ER 165. The settlement provides for extensive injunctive relief. See generally ER 7-40. It also provides for monetary relief in the amount of $9,800,000 worth of bankruptcy stock in the Airlines, ER 11, with a value estimated at more than $15,000,000 as of April 4, 2018, ER 87; ER 166.

The settlement defines the class of individuals potentially eligible for monetary relief as all “former/current American and Envoy employees who believe they were discriminated and/or retaliated against in violation of the Americans with Disabilities [Act] by American or Envoy during the period January 1, 2009, through August 3, 2015.” ER 36-38. The EEOC and the Airlines estimate that, at minimum, several hundred former and current Airlines employees will receive monetary relief under the settlement. See ER 166. The substantial injunctive relief provided in the settlement applies to thousands of former, current, and future employees of the Airlines. See ER 163, 167; see generally ER 7-40.

On November 3, 2017, the EEOC filed this suit against the Airlines, D.Ct.R.1, and simultaneously filed a joint motion with the Airlines to enter and approve the consent decree, D.Ct.R.4. The district court subsequently directed the parties to provide supplemental briefing explaining in detail how the settlement represents a fair, adequate, and reasonable resolution of the claims presented in the EEOC’s complaint. D.Ct.R.5. The parties responded with a joint memorandum describing how the settlement was fair, adequate, and reasonable, both substantively and procedurally. D.Ct.R.7. On November 16, 2017, the court granted the joint motion to adopt the consent decree and entered the decree as the final judgment in the case. ER 6. The court also directed the clerk to terminate the case. Id.

The monetary relief provided in the settlement comes from a “Disputed Claims Reserve” created in connection with the Airlines’ Chapter 11 bankruptcy. ER 11. Accordingly, on December 15, 2017, the Airlines filed a motion in the Southern District of New York Bankruptcy Court, seeking that court’s approval of the settlement.[1] See Motion for Judicial Notice (“MJN”) ex. 1 (In re AMR Corp., No.11-15463-shl, Motion of Debtors for Entry of Order Pursuant to Fed. R. Bankr. P. 9019(a) Approving Settlement Agreement Resolving Certain Pending EEOC Litigation (Bankr. S.D.N.Y. Dec. 15, 2017)).

On January 25, 2018, Meadows, an individual pro se shareholder/creditor of the Airlines, lodged his objections to the settlement; he filed an amended objection five days later. See MJN ex. 2 (In re AMR Corp., No.11-15463-shl, Notice of Creditor Lawrence M. Meadows Amended Objection (Bankr. S.D.N.Y. Jan. 30, 2018)). Over the past several years, Meadows has engaged in a substantial volume of pro se litigation against the Airlines. In the district court, the Airlines described how Meadows has “engaged in a ‘blizzard’ of litigation against American [Airlines],” having “filed three union grievances, four EEOC charges alleging ADA violations, one charge with the Federal Aviation Administration, three charges with the U.S. Department of Labor, and three lawsuits in federal court—including a 2015 case in the U.S. District Court for the Northern District of Illinois asserting two ADA claims.” ER 77; see also ER 92-97. The Airlines continued that Meadows’ “extensive litigation has resulted in more than 15 findings, determinations, and rulings by administrative agencies, tribunals, and federal courts—all in favor of American.” ER 77.

On February 1, 2018, the bankruptcy court held a hearing on the Airlines’ motion to approve the settlement. See ER 98-99. Meadows appeared at the hearing and presented the bankruptcy court with his objections to the settlement, asserting that the settlement excluded himself and other pilots, deprived him of his rights to remedy his ADA allegations against the Airlines, and contained an inadequate sum of money to resolve the EEOC’s claims against the Airlines. See generally ER 116-45.

At the end of the hearing, the bankruptcy court orally granted the Airlines’ motion, approving the settlement and rejecting Meadows’ objections. ER 138-41. The court concluded that the consent decree did not exclude Meadows or other pilots, and did not deprive Meadows of any claims.[2] ER 39-40. On May 16, 2018, the bankruptcy court entered its order approving the settlement and directing the parties to clarify in the Notice of Settlement and on the website contemplated by the decree that pilots are not excluded. MJN ex. 3 (In re AMR Corp., No.11-15463-shl, Order (Bankr. S.D.N.Y. May 16, 2018)). Meadows appealed the bankruptcy court’s ruling to the United States District Court for the Southern District of New York; that appeal is currently pending. MJN ex. 4 (In re AMR Corp., No. 11-15463-shl, Notice of Appeal (Bankr. S.D.N.Y. June 11, 2018)); see also In re AMR Corp., No. 18-6149 (S.D.N.Y.) (appeal).

On March 15, 2018, after the bankruptcy hearing but before the court issued its order approving the parties’ settlement, the EEOC and the Airlines filed in the district court a joint motion for entry of an amended consent decree. See ER 42-45. They did so pursuant to the bankruptcy court’s February 1 oral ruling that the notice provision of the consent decree should be revised to clarify that pilots are covered by the decree. ER 44.

The parties also sought to amend the decree’s language establishing its effective date. Under the original consent decree, the effective date was defined as when the bankruptcy court’s order approving the decree becomes “final and non-appealable.” ER 9. The parties sought to amend this definition to provide that the agreement would become effective once the district court in this action and the bankruptcy court had each approved the decree. ER 44. The parties did so because Meadows had stated his intent to appeal the bankruptcy court’s order approving the decree; this could cause several years’ delay in settlement implementation as appeals proceeded through the district court and court of appeals. Id.; see also 28 U.S.C. §§ 158(a), 1291. As described by the Airlines: “if the Decree is not revised in this manner, a single former pilot—who has not actually flown for American for 15 years and whom American terminated seven years ago—would prevent all of the potential claimants from obtaining relief for several years while he pursues an appeal that would be frivolous on its face.” ER 76.

On March 28, 2018, Meadows made his first appearance in this action, moving to intervene and objecting to the parties’ motion for approval of the amended consent decree. D.Ct.R.11. On April 2, 2018, Meadows filed an amended version of this same motion. D.Ct.R.12. Two other individuals also moved to intervene.^{^[3]} D.Ct.R.15; D.Ct.R.19.

Meadows sought to participate in the case based on Federal Rule of Civil Procedure 19, Required Joinder of Parties, or, in the alternative, Federal Rule of Civil Procedure 24, Intervention. D.Ct.R.12 at 2. In support of his motion, Meadows repeated his objections to the consent decree that the bankruptcy court had already rejected. These included his claims that the parties’ settlement excluded pilots (id. at 11-14); that the monetary relief in the settlement is inadequate (id. at 14-16); and that the settlement deprives him and other pilots of their ADA claims (id. at 19-25). Meadows also added an additional objection directed at the proposed amended consent decree: that the parties’ proposed amendment of the effective date would deprive him of due process rights. Id. at 16-19.

The EEOC responded that Meadows’ motion to intervene was untimely, given that his motion was filed after entry of the consent decree. ER 171 (citing United States v. Oregon, 913 F.2d 576, 588 (9th Cir. 1990)). The EEOC further argued that Meadows’ motion was untimely because his participation in the case at this time would delay the EEOC’s performance of its statutory obligation to remedy discrimination, and would delay or potentially deny relief to employees who had been harmed by the Airlines’ conduct. ER 172.

In addition, both the EEOC and the Airlines argued that Meadows’ motion should be denied because he had already litigated his objections to the consent decree in the bankruptcy court, and he was therefore collaterally estopped from relitigating those objections in the district court. ER 83-86; ER 172-74. The parties further argued that Meadows’ objections to the decree were without substantive merit because pilots are included in the settlement, the settlement does not impact any of Meadows’ rights, and the settlement is a fair, adequate, and reasonable resolution of the EEOC’s case against the Airlines. ER 86-90; ER 174-76.

2. District Court decisions

On April 24, 2018, the district court entered an order rejecting the parties’ joint motion for entry of an amended consent decree and Meadows’ motion to intervene. Regarding the parties’ motion for entry of an amended consent decree, the court construed the motion as a request for relief under Federal Rule of Civil Procedure 60(b) and concluded that the parties had not met the requirements for such relief. ER 2-3. In particular, the court stated that the parties “do not point to any extraordinary circumstance that calls for the proposed revision to the list of employees entitled to notice in the consent decree.” ER 3 (citations omitted). The court further observed that “the proposed revision making the consent decree immediately effective upon court approval” did not “fall[] within [the] species of equitable relief contemplated by Rule 60(b)(6).” Id. (citations omitted).

Turning to the motions to intervene, the court first noted that because Meadows and the two other proposed intervenors had “[a]ffirmatively moved to be made parties to this action,” it addressed their motion as for intervention under Rule 24 rather than joinder under Rule 19. ER 3 (n.1). The court next stated that the proposed intervenors’ filings failed to meet the requirements of Rule 24(c) because their motions were not accompanied by the required pleading, “such as a complaint or answer . . . that sets forth the claim or defense that is the basis for seeking intervention.” ER 3-4.

The court then concluded that the motions to intervene were untimely, and denied them on that basis. ER 4. The court cited League of United Latin American Citizens v. Wilson, 131 F.3d 1297, 1302, 1308 (9th Cir. 1997), as providing that “timeliness is a threshold requirement for either mandatory or permissive intervention under Fed. R. Civ. P. 24,” and that timeliness “is determined by considering: (1) the stage of the proceedings; (2) prejudice to other parties; and (3) the reason for and length of the delay.” Id. The court observed that “[w]ithout explanation, movants request to intervene in this case months after they had become aware of this action and filed their objections in bankruptcy proceedings” and “approximately five months after judgment was entered in this case.” Id. (citing Meadows’ motion and attachments).

The court concluded that “[a]llowing intervention at this juncture would prejudice the current parties by prolonging proceedings and threatening settlement.” Id. As support, the court cited decisions from this Court, including this Court’s recognition in Alaniz v. Tillie Lewis Foods, 572 F.2d 657, 659 (9th Cir. 1978), that because “the motion was filed after the consent decree was approved, the first factor weighs heavily against” intervention. Id. Accordingly, the court denied the motions as untimely, without addressing any of the other requirements for Rule 24 intervention. Id. (citing United States v. Washington, 86 F.3d 1499, 1503 (9th Cir. 1996), for the proposition that “[i]f the court finds that the motion to intervene was not timely, it need not reach any of the remaining elements of Rule 24”). On May 24, 2018, the court issued an order denying Meadows’ motion for reconsideration. ER 5.

Summary of the Argument

The district court correctly rejected Meadows’ attempt to intervene in this settled disability discrimination suit between the EEOC and the Airlines. First and foremost, however, Meadows’ motion to intervene is moot for at least two reasons. The parties settled the EEOC’s claims, the district court entered final judgment, and neither party appealed. Moreover, Meadows sought to intervene here for the purpose of opposing the parties’ motion for entry of the amended consent decree. The district court denied the parties’ motion and did not enter the amended decree, essentially granting Meadows’ motion in opposition to entry of the parties’ amended decree. For both reasons, this Court could not grant Meadows any effective relief even if it were to determine that he should have been permitted to intervene. His appeal is therefore moot, and it should be dismissed.

Second, even if this Court determines that the appeal is not moot, the district court acted well within its discretion in concluding that Meadows’ motion to intervene was untimely. Meadows sought to intervene in the EEOC’s suit some four months after the court had approved the consent decree and entered final judgment, and two months after the notice of appeal period had run. Meadows’ motion was also filed almost two months after he had litigated his objections to the parties’ settlement in bankruptcy court. Meadows had notice of the parties’ settlement and consent decree in the district court prior to his participation in the bankruptcy court litigation. He offers no satisfactory explanation for why he chose to wait to seek intervention here until after he litigated, and lost, his objections in the bankruptcy court. And permitting Meadows to intervene will likely visit a substantial prejudice on the parties, as well as the thousands of individuals affected by the parties’ settlement, by needlessly delaying the remedial aspects of that settlement.

Third, even if this Court disagrees as to the untimeliness of Meadows’ motion, Meadows’ arguments against the parties’ settlement are barred by collateral estoppel—issue preclusion—because he already litigated his objections to the settlement in bankruptcy court. Moreover, and as both the district court and the bankruptcy court concluded, the parties’ settlement is a fair, adequate, and reasonable resolution of the EEOC’s claims against the Airlines. Meadows’ contrary contentions are meritless.

Argument

I. Standard of Review

This Court reviews a district court’s denial, on timeliness grounds, of a motion to intervene under Rule 24 for abuse of discretion. Mont. Wilderness Ass’n, 647 F.3d at 896; see also Alaniz, 572 F.2d at 659 (“The question of timeliness is addressed to the sound discretion of the trial court and will be overturned only when an abuse of discretion is shown.” (citing NAACP v. City of New York, 413 U.S. 345, 366 (1973))).

However, before addressing the merits of an appeal, this Court is under a “continuing, independent obligation to ensure that [it has] subject matter jurisdiction over a case.” Clark v. City of Seattle, 899 F.3d 802, 808 (9th Cir. 2018) (citation omitted); see also, e.g., All. for the Wild Rockies v. Savage, 897 F.3d 1025, 1031 (9th Cir. 2018) (recognizing that this Court, as a “threshold” matter, has “an independent obligation to determine [its] jurisdiction,” even when the parties agree that a claim is moot) (citation omitted).

II. Meadows’ appeal is moot and should be dismissed because there is no effective relief this Court could grant him.

Meadows moved to intervene to challenge certain terms in the consent decree resolving the EEOC’s claims against the Airlines. See generally D.Ct.R.12. However, under this Court’s precedent, any objections Meadows may have to the consent decree—whether as entered in November 2017 or as to the parties’ March 15, 2018, joint motion to enter an amended consent decree—are moot. Meadows moved to intervene too late to challenge the original consent decree, and the district court denied the parties’ motion to amend the consent decree in full. As there is no effective relief that could be granted to Meadows even if this Court should disagree with the district court’s intervention ruling, Meadows’ appeal is moot and should be dismissed.

A. Meadows’ appeal is moot as to any of his objections to the consent decree entered on November 16, 2017, as final judgment.

“An appeal is moot if there exists no present controversy as to which effective relief can be granted.” W. Coast Seafood Processors Ass’n v. Nat. Res. Def. Council, Inc., 643 F.3d 701, 704 (9th Cir. 2011). “A case that becomes moot at any point during the proceedings is no longer a ‘Case’ or ‘Controversy’ for purposes of Article III, and is outside the jurisdiction of the federal courts.” United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1538 (2018) (quoting in part Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)).

In the intervention context, this Court has recognized that mootness turns on “whether . . . the settlement and dismissal of the underlying action make[] it impossible for the court to grant any effectual relief whatever to the putative intervenor even if we were to determine that the district court erred in denying his intervention.” United States v. Sprint Commc’ns, Inc., 855 F.3d 985, 990 (9th Cir. 2017) (internal quotation marks omitted). Thus, the Court recognized, in West Coast Seafood it had “held that this court could not grant the appellant any effective relief by allowing it to intervene in a case that the district court ha[d] since decided, through [an] Order on Remedy and the subsequent final judgment, from which neither party ha[d] appealed.” Id. at 989 (quoting West Coast Seafood, 643 F.3d at 704) (internal quotation marks omitted).

But the Sprint Court also recognized that in other circumstances “an intervention controversy can remain live even after final judgment is entered in the underlying case.” Id. It observed that, in DBSI/TRI IV Ltd. Partnership v. United States, 465 F.3d 1031 (9th Cir. 2006), it had found the appeal was not moot because, “if it were concluded on appeal that the district court had erred in denying the intervention motion, and that the applicant was indeed entitled to intervene in the litigation, then the applicant would have standing to appeal the district court’s judgment.” Id. (quoting in part 465 F.3d at 1037 (citation omitted)). To illustrate its point, the Court cited decisions—unlike this case—either where the motion to intervene had been filed prior to the entry of final judgment, or where one of the parties had kept the case alive post-judgment by filing an appeal. See id. (citing Canatella v. California, 404 F.3d 1106, 1109 n.1 (9th Cir. 2005); Leisnoi, Inc. v. United States, 313 F.3d 1181, 1184 n.4 (9th Cir. 2002)). And in Sprint, this is exactly what happened—the motion to intervene was denied prior to the parties’ settlement and the district court’s subsequent dismissal of the suit. Id.

Here, Sprint and West Coast Seafood compel the conclusion that Meadows’ appeal is moot. The district court entered final judgment on November 16, 2017. ER 6. By operation of Federal Rule of Appellate Procedure 4(a)(1)(B)(i), the parties had sixty days—until January 16, 2018—to file a notice of appeal. The parties did not do so, and the time for filing a notice of appeal lapsed on January 16, 2018. Meadows filed his motion to intervene on March 28, 2018, some seventy-one days after the appeal filing period had lapsed, and 131 days after the entry of final judgment. D.Ct.R.11. Accordingly, at no time was Meadows’ motion to intervene properly before a live controversy sufficient to confer subsequent appellate jurisdiction as to the final judgment, or to afford him the possibility of any effective relief.

B. Meadows’ appeal is moot as to any of his objections to the parties’ March 15, 2018, joint motion to enter the amended consent decree.

Even if this Court were to measure Meadows’ motion to intervene against the parties’ March 15, 2018, motion for entry of an amended consent decree, Meadows’ appeal is still moot.

First, and critically, the fact that the district court denied the EEOC’s and the Airlines’ motion to amend the consent decree means that there is no effective relief this Court could provide Meadows. Meadows stated that his intervention motion was directed at the parties’ attempt to enter an amended consent decree—an attempt the district court denied. See D.Ct.R.12 (Meadows’ motion, titled “Amended Motion to Intervene, and Objection to Joint Motion for Entry of Consent Decree”) (emphasis added), ER 3-4. Accordingly, Meadows has already received all he sought through intervention, and this Court has no effective relief to provide him even if it were to determine that the district court erred in denying his intervention motion. See Sprint, 855 F.3d at 989. Meadows’ appeal is therefore moot.

Second, assuming Meadows had intended to challenge some aspect of the original consent decree, he could not have done so by attempting to intervene when he did. See ER 184 (Meadows’ notice of appeal, specifying that he was appealing from the district court’s entry of “final judgment, and more specifically this its [sic] Orders entered on November 16, 2017, . . . April 24, 2018, . . . and . . . May 24, 2018”). While the parties’ March 15, 2018, motion was timely for Rule 60(b) purposes, it did not restart the clock for purposes of an appeal from the final judgment, precluding Meadows’ ability to challenge the original consent decree.[4]

A motion for relief under Rule 60(b) is timely filed, for purposes of the district court’s ability to grant or deny the relief sought, when the motion is filed “within a reasonable time,” or, under certain circumstances not applicable here, up to one year after the entry of judgment. Fed. R. Civ. P. 60(c)(1) (attached at Addendum A - 2). But the filing of a timely Rule 60 motion does not necessarily toll the time to file an appeal from the underlying final judgment. See Fed. R. Civ. P. 60(c)(2) (providing that a timely Rule 60 motion “does not affect the judgment’s finality or suspend its operation”) (attached at Addendum

A - 2). Instead, only Rule 60(b) motions that are filed within twenty-eight days of the entry of judgment toll the period for filing an appeal. Fed. R. App. P. 4(a)(4)(A)(vi) (attached at Addendum A - 3).

Accordingly, this Court routinely finds that a Rule 60(b) motion filed more than twenty-eight days after the entry of final judgment does not toll the appeal-filing period or preserve appellate jurisdiction over the final judgment. See, e.g., Hernandez v. Baker, 727 F. App’x 450 (9th Cir. 2018) (Mem.) (recognizing that where party’s Rule 60(b) motion was untimely for purposes of tolling appeal period, court of appeals lacked jurisdiction to review the judgment); Wolfe v. Idaho Dep’t of Corr., 698 F. App’x 385 (9th Cir. 2017) (Mem.) (same). Instead, appellate jurisdiction over Rule 60(b) motions filed later than twenty-eight days after the entry of final judgment is limited to the merits of the motions themselves. See, e.g., Molloy v. Wilson, 878 F.2d 313, 315 (9th Cir. 1989) (“An appeal from a denial of a Rule 60(b) motion brings up only the denial of the motion for review, not the merits of the underlying judgment.”).

This Court’s approach to this issue makes sense, given the substantial difficulties a contrary rule would pose both for the integrity of final judgments and for the rules governing timely appeals. Allowing the untimely (for Fed. R. App. P. 4(a)(4)(A) purposes) filing of a Rule 60(b) motion to revive appellate jurisdiction over the underlying final judgment would render the finality rule a nullity and introduce significant uncertainty into all types of litigation. It would also empower parties—or non-parties—to reset the time period for filing an appeal in long-completed litigation by the filing of a Rule 60(b) motion. Such a result is plainly incompatible with the rules of civil and appellate procedure, courts’ interpretations of those rules, and the constitutional requirement of the existence of a live case or controversy.

Application of these rules again compels the conclusion that Meadows’ appeal is moot. The parties filed their joint motion to enter an amended consent decree some two months after the time to file a notice of appeal had lapsed, and nearly three months after the time to file a Rule 60(b) motion that could have tolled that time. See ER 6 (entry of final judgment on November 16, 2017); ER 42 (parties’ joint motion, filed March 15, 2018); see also Fed. R. App. P. 4(a)(1)(B)(i) (notice of appeal from final judgment must be filed within sixty days of entry of judgment) (attached at Addendum A - 3); Fed. R. App. P. 4(a)(4)(A)(vi) (attached at Addendum A - 3). Under these circumstances, the parties’ motion to enter the amended consent decree—timely filed under Rule 60(c)(1) but inarguably far past the twenty-eight-day deadline for such motion to toll the appeal filing period—did not toll the time for filing a notice of appeal from final judgment. Nor did the parties’ motion otherwise affect the finality or operation of that judgment. See Fed. R. Civ. P. 60(c)(2) (attached at Addendum A - 2).

Accordingly, when the parties filed their joint motion, the only matter over which this Court could properly exercise appellate jurisdiction was the district court’s ruling that the parties’ joint motion failed to satisfy the requirements for relief under Rule 60(b). The final judgment, and the original consent decree entered as final judgment, were beyond this Court’s appellate jurisdiction.

In fact, the majority of Meadows’ objections to the parties’ settlement were unrelated to the few minor amendments proposed by the parties in their joint motion. See supra p.11. To the extent his objections were beyond the scope of the parties’ proposed amendments, they were directed at the November 16, 2017, final judgment, and are therefore beyond the scope of appellate jurisdiction here. See Molloy, 878 F.2d at 315 (noting that the merits of the underlying judgment are not properly before the Court in an appeal from a denial of a Rule 60(b) motion).

In sum, Meadows sought to intervene to oppose entry of the amended consent decree, and the district court granted his request. He received what he sought had he been permitted to intervene. And if he instead sought to disturb the final judgment, this Court lacks jurisdiction over the final judgment and, again, may provide no avenue by which Meadows could be granted the relief he seeks. In either case, his appeal is moot.

III. The district court correctly concluded that Meadows was untimely in seeking to intervene.

Should this Court determine that the appeal is not moot, it should nevertheless affirm the district court’s denial of Meadows’ motion to intervene on the grounds of untimeliness. Meadows sought to intervene in the EEOC’s suit some four months after the court had approved the consent decree and entered final judgment, and two months after the notice of appeal period had run. Meadows’ motion was also filed almost two months after he had presented the bankruptcy court with his objections to the settlement and had received an adverse ruling on those objections. Accordingly, the district court did not abuse its discretion in concluding that Meadows’ motion to intervene was untimely.

Rule 24 of the Federal Rules of Civil Procedure governs the requirements for intervention by a nonparty in ongoing litigation. The rule provides:

On timely motion, the court must permit anyone to intervene who:

(1) is given an unconditional right to intervene by a federal statute; or

(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.

Fed. R. Civ. P. 24(a) (attached at Addendum A - 1). The ADA confers upon aggrieved individuals an unconditional right of intervention into the EEOC’s litigation. See 42 U.S.C. § 12117(a) (adopting Title VII enforcement provision (42 U.S.C. § 2000e-5(f)(1)) that grants aggrieved parties right of intervention in Commission litigation). As it is uncontested that Meadows is an aggrieved individual for purposes of the EEOC’s litigation here against the Airlines, Rule 24(a)(1) provides a basis for his motion to intervene.^{^[5]}

This does not end the inquiry, however. Any motion to intervene, regardless of whether it is premised on the requirements of Rule 24(a)(1) or (2), must satisfy Rule 24(a)’s condition precedent that it be timely. See Fed. R. Civ. P. 24(a) (requiring requests to intervene be made in a “timely motion”) (emphasis added) (attached at Addendum

A - 1); see also Allied Concrete & Supply Co. v. Baker, 904 F.3d 1053, 1067 (9th Cir. 2018) (recognizing that to intervene as a matter of right under Rule 24(a), among other requirements, “the motion must be timely”) (citing Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011)).

To determine whether a motion to intervene is timely, courts consider “(1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and length of the delay.” Peruta v. Cty. of San Diego, 824 F.3d 919, 940 (9th Cir. 2016) (en banc) (quoting United States v. Alisal Water Corp., 370 F.3d 915, 921 (9th Cir. 2004)).

As a general rule, a post-judgment motion to intervene is untimely if filed after the expiration of the appeal period. U.S. ex rel. McGough v. Covington Techs. Co., 967 F.2d 1391, 1394 (9th Cir. 1992) (citing Yniguez v. Arizona, 939 F.2d 727, 734 (9th Cir. 1991)). “Post-judgment motions to intervene are generally disfavored,” Covington, 967 F.2d at 1395 (citation omitted), and “[i]ntervention after entry of a consent decree is reserved for exceptional cases,” Alaniz, 572 F.2d at 659 (citation omitted). Accordingly, this Court has recognized that waiting to intervene “until after the time for appeal had passed is all but fatal” to an attempt to intervene. Latin Am. Law Enf’t Ass’n v. City of Los Angeles, 29 F.3d 633, 1994 WL 383884, at *2 (9th Cir. 1994) (unpubl.).

These standards indicate that the district court acted well within its discretion in ruling Meadows’ motion to intervene untimely. It cannot reasonably be disputed that, as the district court recognized, “[w]ithout explanation, [Meadows] request[ed] to intervene in this case months after [he] had become aware of this action and filed [his] objections in bankruptcy proceedings. Similarly, [his] request[] arrive[d] approximately five months after judgment was entered in this case.” ER 4.

The district court’s conclusion that Meadows’ motion was untimely fits squarely within this Court’s precedent disfavoring post-judgment intervention motions—especially those filed after the expiration of the appeal period. See Covington, 967 F.2d at 1394-95. The court’s ruling also conforms to this Court’s recognition that, when filed after the entry of a consent decree, a motion to intervene is inappropriate in all but the most exceptional cases. See Alaniz, 572 F.2d at 659. There are no unique circumstances here that make this the exceptional case warranting post-consent-decree intervention—especially given that Meadows has already fully litigated his objections to the settlement in the bankruptcy court. See supra pp.8-9.

In addition, the district court was correct that Meadows’ intervention would visit a substantial prejudice on the parties. The settlement embodied in the consent decree—now approved by two separate federal courts—is the result of several years of investigation by the EEOC and several more years of intensive negotiation between the parties. It promises remedial and injunctive relief covering thousands of the Airlines’ past, present, and future employees. See supra pp.4-6. Permitting Meadows to intervene at this late date simply to relitigate his personal objections to the settlement—objections that have already been fully heard and rejected by the bankruptcy court—will likely cause needless delay in the relief promised to those thousands of other employees of the Airlines. The EEOC views implementation of this settlement as a part of its obligation under the ADA to remedy and prevent disability discrimination; Meadows’ intervention now will only impede the agency in its fulfillment of that obligation.

Finally, Meadows’ proffered reason for his delay in seeking to intervene also supports the district court’s ruling. According to Meadows, he was unable to intervene in time because he did not receive notice of the parties’ filings in the district court. Appellant’s Brief (“AtBr.”) 2. Meadows claims that he learned about the settlement and consent decree from the Airlines’ December 15, 2017, Bankruptcy Court Motion, although he has not specified the date on which he first learned of this filing. See id. Nonetheless, because Meadows filed his first objections to the settlement in the bankruptcy court on January 25, 2018,[6] he must have had notice of the Airlines’ motion at some time prior to that date—and he has not argued to the contrary.

However, despite knowing of the parties’ settlement and the consent decree no later than January 25, Meadows waited several more months, until March 28, 2018, before seeking to intervene. See D.Ct.R.11. Meadows states in his brief that he filed his motion to intervene after the parties filed their joint motion to amend the consent decree. AtBr.2. But he does not explain why he waited until after the bankruptcy court had ruled against him to attempt to intervene here, rather than doing so when he first had notice of the settlement and consent decree. Under these circumstances, the reason for Meadows’ delay appears to be that he sought a second opportunity to litigate his objections to the settlement. Meadows has offered no explanation as to why he waited two to three months after learning of the settlement and consent decree to seek intervention, while he immediately lodged and litigated his objections to that same settlement and consent decree in the bankruptcy court.

IV. Meadows was not denied due process rights.

Meadows asserts that the parties deprived him of his due process rights under the Fifth and Fourteenth Amendments to the Constitution because he did not receive notice of the EEOC’s suit against the Airlines, the consent decree, or other filings. See AtBr., Attachment D, pp. 27-29. He is incorrect.

This Court has long recognized that “[i]t is fundamental to our notions of due process that a consent decree cannot prejudice the rights of a third party who fails to consent to it.” EEOC v. Pan Am. World Airways, Inc., 897 F.2d 1499, 1506 (9th Cir. 1990) (citations omitted). Moreover, as this Court has also long recognized, a consent decree does not violate plaintiffs’ due process rights when it “does not in fact prejudice any rights they have under the [statute].” Id. Because the consent decree between the EEOC and the Airlines does not prejudice any of Meadows’ rights under the ADA, it does not violate his due process rights.[7] The consent decree simply resolves the EEOC’s claims, and any claims by individuals covered by the consent decree who elect to participate in the settlement, against the Airlines. As the bankruptcy judge stated in response to Meadows’ due process concerns:

I’d also want to make it very, very clear that this settlement does not in any way dismiss, waive, or otherwise affect anybody other—anybody else’s rights other than those in the settlement. The parties whose rights are affected are the parties who filed proofs of claims and have decided to settle those proofs of claims or the folks who are part of the consent decree who can participate in the settlement, but only if they so choose by filing the procedures set forth in the consent decree. If they choose not to do that, then they are not waiving any of their claims. That’s the way these class actions work.

ER 139-40.

Necessarily, the scope of the consent decree does not reach beyond its plain terms. Meadows was—and still is—eligible to participate in the settlement process established by the consent decree if he so wishes. But he is equally free not to participate, as evidenced by his decision to pursue ADA claims privately. See supra pp.7-8; see also Gen. Tel. Co. of the Nw., Inc. v. EEOC, 446 U.S. 318, 333 (1980) (in a Title VII systemic discrimination suit brought by the EEOC, rejecting a rule that would “bind all ‘class’ members with discrimination grievances against an employer by the relief obtained under an EEOC judgment or settlement against the employer”).

In sum, Meadows has not been denied his day in court to challenge the consent decree. Nor does the decree itself violate any of Meadows’ rights, due process or otherwise.

V. Meadows’ challenges to the parties’ settlement are barred by collateral estoppel and are otherwise without merit.[8]

Should this Court determine that Meadows’ appeal is not moot and that his motion to intervene was timely, Meadows’ challenges to the consent decree are nevertheless barred by the doctrine of collateral estoppel—issue preclusion—and are otherwise meritless.

A. Meadows’ objections to the parties’ settlement are barred by collateral estoppel.

Before seeking to intervene in this suit, Meadows appeared in the bankruptcy proceedings and argued his objections to the settlement reached between the parties. In fact, Meadows’ separate but identical litigation efforts in the bankruptcy proceeding are ongoing, as he is currently pursuing an appeal from the bankruptcy court’s rejection of his objections to the settlement. Under these circumstances, collateral estoppel bars Meadows from relitigating the same, meritless objections to the settlement in this Court.

In cases like this one, based on federal law, issue preclusion applies “where it is established that: (1) the issue necessarily decided at the previous proceeding is identical to the one which is sought to be relitigated; (2) the first proceeding ended with a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the first proceeding.” Hydranautics v. FilmTec Corp., 204 F.3d 880, 885 (9th Cir. 2000) (citation omitted). The doctrine “protect[s] litigants from the burden of relitigating an identical issue with the same party or his privy and . . . promot[es] judicial economy, by preventing needless litigation.” Wabakken v. Cal. Dep’t of Corr. & Rehab., 801 F.3d 1143, 1148 (9th Cir. 2015) (citations omitted). Prior litigation in bankruptcy proceedings can satisfy the requirements for collateral estoppel. See, e.g., Kirschner v. Blixseth, 667 F. App’x 643, 644 (9th Cir. 2016) (unpubl.) (affirming district court application of collateral estoppel where element of the defendant’s defense had already been litigated in the bankruptcy court); St. Anthony Fish Farm, Inc. v. Multi-Nat’l Invs., LLC, 476 F. App’x 149, 150 (9th Cir. 2012) (unpubl.) (collateral estoppel effect of prior bankruptcy court decision barred plaintiffs’ district court claims).

Applying this issue-preclusion standard here, Meadows’ prior litigation before the bankruptcy court in objection to the parties’ settlement bars his present attempt to relitigate those same issues here. In the bankruptcy court, Meadows argued that the decree excluded himself and other pilots, deprived him of his rights to remedy his ADA allegations against the Airlines, and contained an inadequate sum of money to resolve the EEOC’s claims against the Airlines. See generally ER 116-45; MJN ex.2 (In re AMR Corp., No. 11-15463-shl, Notice of Lawrence M. Meadows Amended Objections (Bankr. S.D.N.Y. Jan 30, 2018)). The bankruptcy court rejected these objections and approved the settlement. ER 138-41. In this litigation, Meadows asserts the same objections to the parties’ settlement, arguing that the parties’ settlement excluded himself and other pilots, that the monetary relief in the settlement is inadequate, and that the settlement deprives himself and other pilots of their ADA claims. D.Ct.R.12 at 11-16, 19-25.

In fact, Meadows has taken essentially this same position in his appeal from the bankruptcy court’s ruling. In that proceeding, Meadows characterized the appeal in this Court as a “parallel appeal . . . relating to the very same underlying EEOC consent decree . . . that is also the subject of this instant appeal [from the bankruptcy court].” MJN ex.5 (In re AMR Corp., No. 18-6149, Docket No. 5, Letter-Motion (S.D.N.Y. filed Aug. 8, 2018)). Meadows continued that “[r]esolution of that 9th Cir. Appeal may likely moot out the subsequently filed claims in this instant SDNY appeal.” Id. While Meadows appears not to understand that he may not simultaneously litigate the same claims in this Court and in the Southern District of New York, he clearly understands that this is what he is doing.

Thus, there can be no reasonable dispute that Meadows’ objections to the settlement were “necessarily decided at the previous proceeding” and are “identical to the [objections which are] sought to be relitigated.” Hydranautics, 204 F.3d at 885. The bankruptcy court proceedings necessarily “ended with a final judgment on the merits,” given that Meadows appealed from that court’s order rejecting his objections and granting the motion to approve the settlement. See id. Nor is there any dispute that Meadows was a party to that bankruptcy court proceeding. See In re Tower Park Props., LLC, 803 F.3d 450, 456 (9th Cir. 2015) (recognizing, for Chapter 11 bankruptcy proceedings, that the bankruptcy statute defines “party in interest” to include “creditors”; the Court also included in that definition anyone who has a “legally protected interest that could be affected by a bankruptcy proceeding”) (citations omitted). Accordingly, Meadows’ attempt to relitigate his objections to the settlement agreement before this Court are plainly barred by the doctrine of issue preclusion, making dismissal appropriate. See, e.g., Arduini v. Hart, 774 F.3d 622, 625 (9th Cir. 2014) (affirming dismissal on issue preclusion grounds).

Although the district court did not address the parties’ issue preclusion argument below, this Court may nonetheless resolve the appeal on that ground, as it may affirm on any basis supported by the record. See, e.g., E.V. v. Robinson, 906 F.3d 1082, 1090 (9th Cir. 2018) (recognizing that this Court “can affirm the district court on any basis supported by the record,” and affirming on alternative grounds not addressed by the district court); U.S. ex rel. Silingo v. WellPoint, Inc., 904 F.3d 667, 678 (9th Cir. 2018) (“We may affirm the dismissal on any ground supported by the record, even if the district court did not rely on that ground.”).

Moreover, this Court may address a claim of issue preclusion for the first time on appeal, as a question of law. ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 760 (9th Cir. 2014) (“[W]e may consider issue preclusion, a question of law, for the first time on appeal.”) (citing Clements v. Airport Auth., 69 F.3d 321, 329-30 (9th Cir. 1995)). This is so even where, as here, one of the elements satisfying the issue preclusion doctrine—a final judgment on the merits in the earlier litigation—occurred while the matter was pending on appeal but had not yet happened at the time of the district court’s ruling.

In ReadyLink, this Court addressed issue preclusion for the first time on appeal in the later of two suits, where the parties had not argued it below. Id. However, during the pendency of the ReadyLink appeal, the court in the earlier suit addressed and resolved the matter giving rise to issue preclusion in the second suit. Id. Similarly, in this case, the bankruptcy court did not render its final, appealable order rejecting Meadows’ objections and approving the settlement until after Meadows had sought to intervene here. See supra pp.9-11.

As explained supra pp.11-12, Meadows did raise one objection in the district court that he had not raised in the bankruptcy court: his challenge to the parties’ proposal to amend the consent decree to alter its effective date. See D.Ct.R.12 at 16-19. Strictly speaking, this singular objection would not have been subject to issue preclusion, as it had not been raised previously. However, as explained above, it was directed at the proposed amendments to the consent decree, which the district court rejected entirely. See ER 2-3. Neither party appealed from that ruling by the district court. Thus, there is no adverse ruling on this point for Meadows to contest, on appeal or otherwise, and no live controversy on this point. As a result, for the reasons explained supra at pp.18-27, Meadows’ objection on this point is therefore moot.

B. Meadows’s objections to the parties’ settlement are without substantive merit.

Even if Meadows’ objections to the parties’ settlement were not moot, untimely, and barred by issue preclusion, they are meritless. As both the district court and the bankruptcy court correctly concluded at the hearing, the settlement was a fair, reasonable, and appropriate resolution of the EEOC’s claims.

The settlement represents the culmination of the EEOC’s six-year investigation into charges alleging the Airlines had discriminated against their employees in violation of the ADA, and two years of arm’s-length negotiations between the parties. See ER 164-65. It provides for extensive injunctive relief covering thousands of the Airlines’ past, present, and future employees. See generally ER 7-40. The settlement further provides for monetary relief, in the form of bankruptcy stock in the Airlines with a value estimated at more than $15,000,000 as of April 4, 2018. ER 87, 166. And while the parties have been working to resolve any latent ambiguities on the issue, they are in complete agreement that the Airlines’ pilots are covered by the terms of the consent decree. See ER 140-41.

After reviewing the parties’ filings in support of the settlement, the district court concluded that the consent decree was “a fair, adequate, and reasonable resolution of this matter.” ER 6. Similarly, the bankruptcy court found that the settlement was fair and reasonable, and not the product of fraud or collusion. ER 138-39. Responding to Meadows’ objections, the bankruptcy court specifically recognized that “[t]he parties whose rights are affected are the parties who filed proofs of claims and have decided to settle those proofs of claims or the folks who are part of the consent decree who can participate in the settlement, but only if they so choose by filing the procedures set forth in the consent decree. If they choose not to do that, then they are not waiving any of their claims.” ER 139.

The court continued, directly addressing Meadows’ objections and stating, “Mr. Meadows has claims. Those claims have been the subject of hearings and adjudication in this court. He may not agree with those decisions and appeal them, and he has a right to do so. But they are not affected by any of this, nor any other claims, nor any other rights of any pilots who have an ability to file whatever claims they either filed in the bankruptcy or whatever claims they have that might exist outside of the bankruptcy waiving any of their claims.” Id. at 140. The court finally concluded that despite the confusion over the notice provision of the consent decree as it pertains to pilots, “it’s pretty clear that the pilots are not excluded from the settlement. That they can participate if they so choose.” Id. Simply, the entirety of Meadows’ objections to the settlement are without merit.

Conclusion

For the foregoing reasons, the EEOC respectfully requests that this Court dismiss the appeal. Should the Court conclude that dismissal is not warranted, the EEOC respectfully requests that this Court affirm the district court’s denial of Meadows’ motion to intervene.

Statement of Related Cases

There are no known related cases pending in this Court.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

s/ James M. Tucker

JAMES M. TUCKER

Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

131 M St. NE, Rm. 5NW10P

Washington, D.C. 20507

(202) 663-4870

James.Tucker@EEOC.gov

Federal Rules of Civil Procedure Rule 24

Rule 24. Intervention

(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:

(1) is given an unconditional right to intervene by a federal statute; or

(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.

(b) Permissive Intervention.

(1) In General. On timely motion, the court may permit anyone to intervene who:

(A) is given a conditional right to intervene by a federal statute; or

(B) has a claim or defense that shares with the main action a common question of law or fact.

(2) By a Government Officer or Agency. On timely motion, the court may permit a federal or state governmental officer or agency to intervene if a party’s claim or defense is based on:

(A) a statute or executive order administered by the officer or agency; or

(B) any regulation, order, requirement, or agreement issued or made under the statute or executive order.

(3) Delay or Prejudice. In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.

(c) Notice and Pleading Required. A motion to intervene must be served on the parties as provided in Rule 5. The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought.

CREDIT(S)

(Amended December 27, 1946, effective March 19, 1948; December 29, 1948, effective October 20, 1949; January 21, 1963, effective July 1, 1963; February 28, 1966, effective July 1, 1966; March 2, 1987, effective August 1, 1987; April 30, 1991, effective December 1, 1991; April 12, 2006, effective December 1, 2006; April 30, 2007, effective December 1, 2007.)

Federal Rules of Civil Procedure Rule 60

Rule 60. Relief From a Judgment or Order

(a) Corrections Based on Clerical Mistakes; Oversights and Omissions. The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court’s leave.

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

(c) Timing and Effect of the Motion.

(1) Timing. A motion under Rule 60(b) must be made within a reasonable time--and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.

(2) Effect on Finality. The motion does not affect the judgment’s finality or suspend its operation.

(d) Other Powers to Grant Relief. This rule does not limit a court’s power to:

(1) entertain an independent action to relieve a party from a judgment, order, or proceeding;

(2) grant relief under 28 U.S.C. § 1655 to a defendant who was not personally notified of the action; or

(3) set aside a judgment for fraud on the court.

(e) Bills and Writs Abolished. The following are abolished: bills of review, bills in the nature of bills of review, and writs of coram nobis, coram vobis, and audita querela.

CREDIT(S)

(Amended December 27, 1946, effective March 19, 1948; December 29, 1948, effective October 20, 1949; March 2, 1987, effective August 1, 1987; April 30, 2007, effective December 1, 2007.)

Federal Rules of Appellate Procedure Rule 4, 28 U.S.C.A.

Rule 4. Appeal as of Right--When Taken

(a) Appeal in a Civil Case.

(1) Time for Filing a Notice of Appeal.

(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after entry of the judgment or order appealed from.

(B) The notice of appeal may be filed by any party within 60 days after entry of the judgment or order appealed from if one of the parties is:

(i) the United States;

(ii) a United States agency;

(iii) a United States officer or employee sued in an official capacity; or

(iv) a current or former United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf--including all instances in which the United States represents that person when the judgment or order is entered or files the appeal for that person.

(C) An appeal from an order granting or denying an application for a writ of error coram nobis is an appeal in a civil case for purposes of Rule 4(a).

(2) Filing Before Entry of Judgment. A notice of appeal filed after the court announces a decision or order--but before the entry of the judgment or order--is treated as filed on the date of and after the entry.

(3) Multiple Appeals. If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.

(4) Effect of a Motion on a Notice of Appeal.

(A) If a party files in the district court any of the following motions under the Federal Rules of Civil Procedure--and does so within the time allowed by those rules--the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion:

(i) for judgment under Rule 50(b);

(ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment;

(iii) for attorney’s fees under Rule 54 if the district court extends the time to appeal under Rule 58;

(iv) to alter or amend the judgment under Rule 59;

(v) for a new trial under Rule 59; or

(vi) for relief under Rule 60 if the motion is filed no later than 28 days after the judgment is entered.

(B)(i) If a party files a notice of appeal after the court announces or enters a judgment--but before it disposes of any motion listed in Rule 4(a)(4)(A)--the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered.

(ii) A party intending to challenge an order disposing of any motion listed in Rule 4(a)(4)(A), or a judgment’s alteration or amendment upon such a motion, must file a notice of appeal, or an amended notice of appeal--in compliance with Rule 3(c)--within the time prescribed by this Rule measured from the entry of the order disposing of the last such remaining motion.

(iii) No additional fee is required to file an amended notice.

(5) Motion for Extension of Time.

(A) The district court may extend the time to file a notice of appeal if:

(i) a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and

(ii) regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause.

(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise. If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules.

(C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.

(6) Reopening the Time to File an Appeal. The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:

(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry;

(B) the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and

(C) the court finds that no party would be prejudiced.

(7) Entry Defined.

(A) A judgment or order is entered for purposes of this Rule 4(a):

(i) if Federal Rule of Civil Procedure 58(a) does not require a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a); or

(ii) if Federal Rule of Civil Procedure 58(a) requires a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a) and when the earlier of these events occurs:

• the judgment or order is set forth on a separate document, or

• 150 days have run from entry of the judgment or order in the civil docket under Federal Rule of Civil Procedure 79(a).

(B) A failure to set forth a judgment or order on a separate document when required by Federal Rule of Civil Procedure 58(a) does not affect the validity of an appeal from that judgment or order.

. . . .

CREDIT(S)

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Nov. 18, 1988, Pub.L. 100-690, Title VII, § 7111, 102 Stat. 4419; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005; Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 28, 2010, eff. Dec. 1, 2010; Apr. 26, 2011, eff. Dec. 1, 2011; Apr. 28, 2016, eff. Dec. 1, 2016; Apr. 27, 2017, eff. Dec. 1, 2017.)

[1] The Commission has filed a motion to take judicial notice of certain documents from the Airlines’ bankruptcy proceedings, which are relevant to this appeal (and referenced in this brief). The motion was filed concurrently with this brief, attaching the documents as exhibits. See U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (“[W]e ‘may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.’”) (citations omitted).

[2] The bankruptcy court also appears to have found that the settlement provides adequate benefits to the affected parties. In summarizing its findings, the court listed a number of factors in support of the settlement. ER 138. However, when it came to the subject of what the affected parties were to receive, the court reporter transcribed the court’s statement as “(indiscernible) to be received by the affected parties.” Id. There is no dispute that one of the factors bankruptcy courts assess in determining the propriety of a settlement is “the proposed benefits to be received.” In re Ashford Hotels, Ltd., 226 B.R. 797, 802 (Bankr. S.D.N.Y. 1998). There is no indication in its oral ruling that the court had any doubts or reservations regarding the adequacy of the benefits at issue. See ER 138-41. Nor has Meadows argued otherwise in this appeal.

[3] As these two other proposed intervenors did not appeal from the district court’s denial of their motions, the EEOC does not address any of their arguments made below.

[4] The parties did not identify the authority under which their joint motion was being submitted; the district court construed it as a Rule 60(b) request for relief. ER 2. The EEOC does not dispute the court’s conclusion.

[5] The EEOC recognizes that Meadows did not argue in the district court for intervention as a matter of unconditional statutory right under Rule 24(a)(1), but instead for intervention under the factors listed in Rule 24(a)(2). Nevertheless, Rule 24(a)(1) better applies to Meadows’ request to intervene, and would have provided a more straightforward path to intervention if his motion had been timely. Accordingly, the EEOC will not address Meadows’ arguments for intervention under Rule 24(a)(2).

[6] See MJN ex. 2 (In re AMR Corp., No.11-15463-shl, Notice of Creditor Lawrence M. Meadows Amended Objection (Bankr. S.D.N.Y. Jan. 30, 2018)).

[7] Pan American involved a consent decree resolving certain claims brought by the EEOC under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. (“ADEA”). Pan Am., 897 F.2d at 1500. In relevant part, the consent decree in Pan American dismissed with prejudice any private ADEA suit-filing or intervention rights the objectors might have had against the defendant. Id. at 1506. Under the ADEA, an aggrieved individual’s right to file a private suit terminates upon the EEOC’s commencement of an enforcement action on his or her behalf. 29 U.S.C. § 626(c)(1). The Court thus found that the consent decree did not implicate any rights the objectors had under the statute. 897 F.2d at 1506-07.

This case reaches the same result as Pan American, but for exactly the opposite reasons. The ADA, unlike the ADEA, allows private suits or intervention by aggrieved individuals after the EEOC files suit. See 42 U.S.C. § 12117(a) (adopting 42 U.S.C. § 2000e-5(f)(1)). But the consent decree here does not foreclose individuals’ private-suit or intervention rights. See generally ER 7-40. Therefore, those rights remain unaffected.

[8] While the district court did not reach the question, the EEOC and the Airlines argued below that Meadows’ challenges to the consent decree were barred by collateral estoppel. See ER 83-86,172-74.