This story has been updated to include a court filing on Monday by the U.S. Airline Pilots Association.
) -- Legal skirmishing continues in the wake of a recent federal appeals court ruling that appeared to clear a path for pilot contract talks at
The June 4 ruling by a three-judge panel of the San Francisco U.S. Appeals Court could allow the U.S. Airline Pilots Association to negotiate a contract that does not necessarily include the specific protections advanced in a controversial 2007 seniority ruling following the 2005 merger between US Airways and
However, Marty Harper, attorney for the America West pilots and managing partner in the Phoenix office of Polsinelli Shughart, said he has filed a petition for a rehearing with the full appeals court as well as a motion for clarification regarding the individual claims of the pilots who filed and won the initial case in U.S. District Court in Phoenix in 2009.
The appeals court decision dismissed the Phoenix ruling that USAPA did not provide fair representation to the America West pilots, saying the case was not "ripe" because those pilots had not yet been damaged.
In the filing, Harper argued that "the opinion seemingly allows a union to wrongfully refuse to integrate operations even after a federally mandated arbitration." The opinion implies that a claim would never be ripe if a union never ratified a new contract, he said, and that "a politically weak minority would have no remedy against a union that, for bad faith motives, kept them in separate operation limbo."
Regarding the motion for clarification, Harper said timing is a big concern. "If the individual pilots have a damage claim against USAPA, they need to bring that within six months of the event that caused the damage," he said. "Did
the appeals court panel really mean to put these guys in a situation where the damage claim, in addition to the
seniority ruling, are knocked out of court?"
The filing noted that "the named plaintiffs' damages claims are predicated on conduct that has already occurred, causation that has already happened, and ongoing injuries that began nearly two years ago."
The USAPA is expected to file a response shortly. A USAPA spokesman declined to comment on the America West pilots' filing.
In its ruling, the appeals court panel noted: "By deferring judicial intervention, we leave USAPA to bargain in good faith pursuant to its
duty of fair representation, with the interests of all members -- both east and west -- in mind, under pain of an unquestionably ripe DFR suit, once a contract is ratified."
In a response filed Monday, USAPA argued that given the panel's finding that the issue is not ripe; the appeals court has no jurisdiction in the case until a contract agreement is reached. Furthermore, USAPA argued, the July order by the Phoenix court included a finding that if its judgment were reversed by the Ninth Circuit Court, its "motions would be moot."
Moreover, the USAPA said because the panel recognized that it cannot assume that membership would have approved a contract agreement containing the Nicolau ruling, damages related to the ruling cannot be awarded. "Even under the district court's injunction mandating USAPA to pursue the Nicolau award, it is uncertain that the west pilots' preferred seniority system ever would be effectuated."
-- Written by Ted Reed in Charlotte, N.C.