We won the first dfr case due to overwhelming evidence. Just read the 9th's decision again and here is the first paragraph under discussion:
"[1] Although considerable time, effort, and expense have
been devoted to the merits of Plaintiffs’ DFR claim before
both this Court and the district court, we are without jurisdic-
tion to address the merits of the claim unless it is ripe. See S.
Pac. Transp. Co. v. City of L.A., 922 F.2d 498, 502 (9th Cir.
1990). We review ripeness de novo. See Manufactured Home
Cmtys. Inc. v. City of San Jose, 420 F.3d 1022, 1025 (9th Cir.
2005); Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1084
(9th Cir. 2003). If the claim before us is not ripe, we must dis-
miss. See S. Pac. Transp., 922 F.2d at 502. "
So none of the dfr merits were even looked at by the 9th.
Here is what it says a little further down:
"Additionally, USAPA’s final proposal may yet be one
that does not work the disadvantages Plaintiffs fear, even if
that proposal is not the Nicolau Award.3 "
So they are saying that usapa might change their mind at the last minute and then the west might not need/want to sue, I can buy that.
Further down they say this:
"the Air
Line Pilots Association (“ALPA”) was decertified and a new
union, the U.S. Airline Pilots Association (“USAPA”), certi-
fied precisely to frustrate implementation of the Nicolau
Agreement and to negotiate a CBA with U.S. Airways that
favors the East Pilots."
So they get it. What makes you think that the same facts applied to dfr2 in a "ripe" situation will lead to a different outcome?
