Item One: Today, December 8, 2009, oral argument was heard in San Francisco before the Ninth Circuit Court of Appeals. Lee Seham, lead trial counsel for the Association, presented the argument. The Judges were the Honorable Tashima, Graber and Bybee. Lead trial counsel for plaintiffs was present but did not argue his clients’ case.
All three judges asked several questions of both counsel. The questions, however, focused almost exclusively on the issue of whether the plaintiffs’ claim was ripe. Ripeness was made an issue in the Association’s appeal, because the trial court ignored longstanding precedent allowing the lawsuit to go forward based on a mere intention or announcement of a bargaining position before any contract was negotiated and ratified. This was clearly a concern shared by the panel. Not only were all three judges’ questions focused largely on ripeness, but the tenor of these questions exhibited skepticism as to whether the claim was ripe.
For example, Judge Graber pressed plaintiffs’ counsel to identify what action the Association took that would make the claim ripe. Counsel for plaintiffs eventually responded that the act was that Association announced its bargaining position.
Plaintiffs’ counsel pointed the panel to the Second Circuit’s Ramey decision in an effort to support their ripeness argument. However, this prompted an interruption from Judge Tashima who read language from the Ramey decision, and asked plaintiffs’ counsel to reconcile the Second Circuit’s language that they did not require, or even permit, union members to bring a suit against their union simply because the union has announced its future intention to breach its duty. Judge Tashima’s question was met with stony silence before plaintiffs’ counsel attempted his answer.
The panel’s focus on ripeness and the Court’s patient hearing of counsel for the Association indicate that the appeal was well received.
Pilots may listen to the entire hearing, including plaintiffs’ counsel’s long pause following Judge Tashima’s question. The audio recording will be posted on the Ninth Circuit’s website by noon PST tomorrow, and can be accessed by following this link:
http://www.ca9.uscourts.gov/media/
As a reminder, USAPA has published a three part video series explaining, in more accessible terms, the various legal issues and precedents in the Addington appeal. Pilots are encouraged to watch these short videos (each approximately ten minutes in length), to gain a greater understanding of those issues. A link to the videos can be found both in the USAPA Links section on the Members homepage, and in the Legal Library.
