Legal Posting – Addington II Appeal

Oral argument was held in the Addington II appeal on April 14, 2015, before the Ninth Circuit Court of Appeals.

The Ninth Circuit records and archives video of all oral arguments.  Click here for the video of the proceeding in Don Addington, et al v. US Airline Pilots Association, et al, No. 14-1575.

Oral argument in the United States Court of Appeals is primarily an opportunity for the three judges on the panel to ask questions about the issues raised in the briefs submitted by the parties.  The time is extremely limited.  In this appeal, the Court allowed 20 minutes to the Plaintiffs and a total of twenty minutes to USAPA and the Company, meaning that only 10 minutes were available to USAPA.  And, as in this appeal, most of the time is taken up in answering the questions posed by the judges.  

The oral presentation is the smallest part of what is presented to the court in an appeal.  An appeal concentrates on legal issues and by far most of what is before the court is in the written briefs submitted by the parties well before the argument.  The briefs are all available in the Legal Library.  USAPA’s principal brief is Doc 22-1.


Almost all of the questions in this case concerned the “mootness” issue that was raised by the Company in a letter (Doc 46) sent to the Court in Late February.  As explained in a previous Legal Posting, US Airways suggested that the question before the court concerning the right of the former America West pilots to participate separately in the McCaskill-Bond seniority integration proceeding 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.

On 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.

Not surprisingly, most of the questions at the argument concerned the issue raised in the Court’s March 20 order (Doc 47).  Determining whether an issue is moot depends on whether any action by the court will make a difference on future events.  As a result, many of the questions asked what would be the result if the court overturned the district court’s decision on either the DFR issue or the McCaskill-Bond issue.  The fact that this was the premise of many of the questions therefore does not in any way indicate that the court is considering overturning the district court.  It indicates only that the court was trying to determine whether such a ruling would in any way affect future events.

There is no way to tell with any certainty when the court will issue a decision in the case.  In Addington I, the decision was issued six months after the argument.  Here, the decision could be issued sooner or later.  The court could also decide to wait until the seniority list integration proceeding is completed which, under the current schedule, will occur late this year.

As always, we will keep you informed of any developments in the case. 

USAPA Communications


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