Sorry my terms are likely wrong. Back when USAPA was filing for an MTD because the Ninth had determined that the matter wasn't ripe, Silver responded to that by dismissing the MTD and make a statement to the effect that this case was not only ripe, but this was the exact kind of case that the DJ was designed to provide relief for. In other words she disagreed with USAPA that believed that the Company was entitled to relief, even in the light of the Ninth's remanding of Adddington and thus had determined from the information she had that the Company was at risk if they accepted or if they refused to accept USAPA's proposed modifications to the arbitrated list. Since a court can't a company immunity from future liability of harming another party (west pilots thus stripping them of their rights), she had to make a ruling on counts 1 or 2. Since Wake and Bybee had already made this determination for her based on the merits and the Ninth did not address the thorny issues related to seniority, it was all within logical reasoning that her only option to grant relief was on Count 1. Of course she changed her final ruling to dodge the question rather than actually answer it and proving the relief she stated the Company was entiled to. That's why the Company's appeal has merit. They are entitled to relief and Silver didn't offer anything more than they already had - a Hobson's choice.