Legal Postings: Addington II - Appeal to Ninth Circuit

Four recently filed documents will bring everyone up-to-date on the appeal to the Ninth Circuit from Judge Silver’s January 2014 decision in Addington II. Judge Silver ruled (1) that USAPA did not breach its duty of fair representation when it decided not to include the Nicolau Award in the MOU that was ratified in February 2013 and (2) that former America West pilots were not entitled to separate representation in the McCaskill-Bond proceeding at least so long as USAPA remained the certified bargaining representative for all US Airways pilots.

The following documents have been added to the Legal Library under Addington II - Appeal to Ninth Circuit:

Briefing in the appeal was completed in December 2014 and oral argument has been scheduled for San Francisco on April 14.

In late February, US Airways filed a letter with the Court (Doc 46) suggesting that the McCaskill-Bond issue had become moot as a result of the decision in the Preliminary Arbitration that APA had the authority to create a West Pilots Committee. The appeal to the Ninth Circuit includes two main issues: (1) Plaintiffs’ argument that the Ninth Circuit should reverse Judge Silver’s decision that USAPA did not violate its duty of fair representation by not including the Nicolau Award as part of the MOU and (2) that the Ninth Circuit should reverse Judge Silver’s decision that the former America West pilots are not entitled to separate representation in the McCaskill-Bond process, at least up to the point that APA became the bargaining representative.  An issue or case is “moot” when the decision in the case no longer has any effect on future events. The US Airways letter suggested that the McCaskill-Bond issue was moot because the Award in the Preliminary Arbitration gave Plaintiffs separate representation in SLI process, which is what they sought in asking the Ninth Circuit to reverse Judge Silver’s decision on the McCaskill-Bond issue.

On March 20, the Court issued an order (Doc 47) directing the Plaintiffs and USAPA to file supplemental briefs addressing (1) whether the appeal concerning the McCaskill-Bond issues have become moot and (2) whether an arbitration decision establishing a single pilots’ seniority list would make the Plaintiffs’ duty of fair representation (DFR) claim moot.

Last Friday, April 3, the Plaintiffs and USAPA filed their supplemental briefs (Docs 48 and 49). USAPA took the position that the two issues were not currently moot but would “almost certainly” be moot once the final SLI decision was issued. USAPA, therefore, urged the Court to defer ruling on the appeal until after the SLI decision was issued. The Plaintiffs said that the McCaskill-Bond issue is currently moot and that the DFR issue is not currently moot and would only become moot if the SLI panel issued an award with an integrated seniority list that incorporated the Nicolau Award. As a result, the Plaintiffs urged the Court to decide the DFR issue.

As noted, oral argument in the case is currently scheduled for April 14 in San Francisco. The Court will either allow the oral argument to go ahead as scheduled and address the mootness and other issues at argument or may postpone the argument based on the supplemental submissions by the parties.

We will keep you up-to-date on developments in this case.


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