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West pilots appeal to the Supreme Court

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Well-known member
Dec 9, 2008
Part of Leonidas' update 10/06/10

Yesterday, attorneys for the West pilots filed our appeal to the Supreme Court of the United States. Submission of a petition (in legal parlance, a “writ of certiorari” or just “writ,”) to the Supreme Court is different from filings in all other courts, both federal and state. A writ must be printed and submitted via exacting specifications – font, paper size and weight, number of copies, margins, etc. – and then mailed . . . as in USPS. USAPA will have an opportunity to respond before the writ is considered by the Supreme Court. It will take at least four of the Justices to agree to hear our case. If that happens, then there will be another round of briefs filed followed by oral arguments sometime next Spring.

The writ clearly explains the negative implications of the Ninth’s opinion on not only the West, but on the airline industry itself and on organized labor as a whole. The Ninth has basically created a situation where the majority within a union can stop the entire collective bargaining process simply because they do not like the result of arbitration. Already we have seen that the Ninth’s decision created a precarious position for US Airways. It might be easy and antiseptic to tell union members they must wait until the completion of negotiations before they have a ripe DFR claim, but such a rule does nothing to address the reality of RLA negotiations.
Two Sides To Every Coin

Today, October 6, 2010, Attorneys for USAPA received copies of the Addington plaintiffs’ Petition for Certiorari to the United States Supreme Court, which is a request that the Supreme Court take the case in order to review the Ninth Circuit’s Addington decision. The Supreme Court appeal is not automatic. Rather, the Supreme Court first decides whether the case even warrants its review, and that is what this Petition is asking for. Pursuant to Supreme Court Rules, USAPA will file an opposition to this petition within thirty (30) days of the petition being docketed.

USAPA's Attorneys are in the process of reviewing the filing in its entirety. However, the Petition appears to rely heavily on the recently enacted McCaskill-Bond Amendment, which provides for arbitration of seniority integration disputes under certain circumstances. The Addington plaintiffs' reliance on McCaskill-Bond in their Supreme Court Petition is curious for a number of reasons:

The legislation was not in effect at the time of ALPA's arbitration following the merger of US Airways and America West, and the general rule is that statutes do not have retroactive effect;
During the entire course of the district court litigation, the Addington plaintiffs never raised any argument based on McCaskill-Bond. The failure to raise any such argument at the district court presents two additional factors against presentation of their present argument in the Supreme Court Petition:
It represents plaintiffs' tacit admission that such an argument was not worthy of consideration; and
It represents plaintiffs' waiver of any such argument because it was raised for the first time on appeal
Even under McCaskill-Bond, the statute does not apply to merging workgroups represented by the same union. In this case, the need to revisit Nicolau arose from the provision under ALPA Merger Policy for either pilot group to exercise their democratic veto.

Plaintiffs also seem to place a lot of emphasis in their Supreme Court Petition on the $1.8 million that they expended in order to obtain Judge Wake’s Order. However, in our view, this was self-inflicted because USAPA advised plaintiffs on numerous occasions that the matter was not ripe for adjudication – a fact observed by the federal district court in Breeger as well as by the Ninth Circuit Court of Appeals in Addington. Therefore, in our opinion, Plaintiffs' Supreme Court Petition for Certiorari is merely throwing more good money after bad.

Glad to see you posted USAPA's update. At least people can form opinions after reading responses from opposing counsel.
Good!! Hopeful that this will bring CLOSURE...
Why did AOL wait soo long to file?
Good!! Hopeful that this will bring CLOSURE...
Why did AOL wait soo long to file?

Not sure for the reason for a delay in filing. I thought there would have been an announcement yesterday but it came today. Attorneys for both sides keep their cards covered for good reasons.

We're just line pilots after all....
A great investment. The west pilots will get it back plus damages when this is finally done.
If this takes much longer the West will have wasted all this time and money as a large percentage of East pilots will have retired anyway. Put up a fence, watch them grow old and you'll be in the same spot you would have with the nic anyway. (and not have spent all that money)

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