Numerous pleadings have been filed in the final days leading to the May 14th preliminary injunction hearing. Of the more notable is the Motion to Consolidate the Preliminary Injunction Hearing with a trial on the Merits (Doc 60). As outlined in that motion, the former America West Pilots (West Pilots) argued that there is no issue of material fact and that the trial on the merits should be consolidated with the preliminary injunction hearing. If the Court were to grant this motion, then Judge Silver’s decision on the preliminary injunction would be a final judgment. There are many supporting documents that reinforce our Motion including a detailed Separate Statement of Facts (Doc. 14) supported by an extensive appendix of evidence (Docs 14-1, 14-2, 14-3) along with more recently filed exhibits and their supporting declarations (Docs. 61, 61-1, 62, 62-1, 62-2, 62-3). On May 9, 2013 Defendant US Airways filed a response to our Motion to Consolidate agreeing that consolidation is appropriate but taking issue with our characterization of the MOU as an agreement between US Airways and USPA to abandon the Nicolau Award. (Doc 64). 

On May 7, 2013, AMR Corporation and American Airlines, Inc. (AA) filed an Application to Intervene (Doc 56). AMR and American ask the Court to allow them intervention for limited purposes and to protect “significant interests.” AMR and American told the Court that if the Court were inclined to grant the injunctive relief requested by the West Pilots, the language proposed by the West Pilots in Doc 53-1, “would, in American’s view, be adequate to protect its interests.” (Doc 57). AMR and American also agreed with the West Pilots and US Airways that this matter is ripe for decision, specifically stating that the MOU “constitutes a collective bargaining agreement among the four parties.” (Doc. 57). There are several documents in support of their motion (Docs. 56-1, 57, 57-1, 57-2). We filed a Notice of Non-Opposition to the AMR/AA Motion (Doc 59) as did US Airways (Doc 63). 

The West Pilots filed a Motion to Join Allied Pilots Association (APA) on May 8, 2013 to our case (Doc 58). With the strong likelihood that APA will be the successor union, and if we succeed in Judge Silver’s Court, joinder of APA will aid in preventing future litigation as to whether they are bound by an injunction issued here. On May 10, 2013, attorneys from James & Hoffman were granted pro hac admission to appear in front of Judge Silver on this matter. 

To round out a very busy week of pleadings, on May 9, 2013 USAPA filed their Reply Memorandum in Support of its Motion to Dismiss (Doc 65). USAPA still insists that our claims are wholly without merit and Court should, as a matter of law, dismiss all our claims in their entirety. USAPA is under the belief that we bring no new facts, and that the Addington II case (the US Airways’ DJ Case) gave USAPA the green light to “majority will” over any seniority scheme they wish. The West Pilots completely disagree. 

And finally, on May 10, 2013 the parties filed a Joint Status Report for Addington III containing a proposed schedule for the hearing (Doc 76). Despite two attempts to agree on a hearing agenda, agreement was not possible and the status report contains an agenda agreed to by the West Pilots and Airways’ and a separate agenda proposed by USAPA. The ultimate decision regarding the agenda will be ordered by Judge Silver. Filed with the Joint Status Report were a number of filings including exhibit lists of the three parties. Plaintiffs Exhibit List can be found in Doc 82 and USAPA’s at Doc 80. US Airways indicated it would not be filing any exhibits in connection with the May 14, 2013 hearing (Doc 81). The parties’ agreed that there would be no live witnesses at the hearing. Again, as indicated in the Motion to Consolidate, it is the position of the West Pilots that there are no issues of fact that need to be resolved by the Court, thus, there is no need to present live witnesses. 

As a note, the various Addington cases have recently been renamed in the effort to use consistent nomenclature. The custom is to label a series of cases in a consistent manner (I, II, III, etc) even if the order of the parties changes from action to action. The original West Pilot Duty of Fair Representation Complaint, filed in September 2008, will be reference as Addington I, the US Airways Declaratory Judgment Complaint, filed in July 2010, will be referenced as Addington II, and the current West Pilot Declaratory Judgment Complaint, filed in March 2013, will be referenced as Addington III. The custom is also to use the less common name even if it is not the first name in the caption of the decision. Hence, ALPA v. O'Neill (the caption for the SCOTUS decision) is known as O'Neill. Simple enough. 

The May 14, 2013, 10 a.m. preliminary injunction hearing is open to the public and is located at the Sandra Day O'Connor U.S. Courthouse, 401 W. Washington Street, Phoenix, Arizona, Courtroom 601. As a friendly reminder if you plan on attending it is suggested to wear, at a minimum, business casual attire. Also, please show respect to the Court by turning off all electronic devices, and our attorneys have specifically requested that we refrain from ANY vocalisations during the proceedings. The Courtroom will not be open until 9:30 a.m. and as you likely remember, the atrium can get quite warm; however, space is limited so please plan accordingly. 

When the hearing is complete, there is no timetable for a ruling from the Court. 

Finally, we would once again like to remind everyone of the Meet and Greet with the West attorneys scheduled for Friday, May 17, 2013 at 9 a.m. The location is the Oasis Room of the Coast Phoenix Sky Harbor Hotel, 4300 East Washington Street, Phoenix, Arizona 85034. 

We are hopefully on the eve of adjudication, and as you can see in this update alone, a tremendous amount of work is involved to bring our action in this Court. Addington III is possible because of the former America West pilots dedication and support in seeking justice to an issue that was resolved in an arbitration years ago. 

Sincerely, 

Leonidas, LLC 

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www.cactuspilot.com

Today, four filings were made related to the West pilots. First, AMR and the UCC jointly filed a motion to dismiss USAPA’s claim in the U.S. Bankruptcy Court in NY. You can read the AMR/UCC motion to dismiss here. Along with this motion, a memorandum in support was also filed which you can read here. We highly recommend that you read this second filing, particularly the argument section. We agree with a lot of what the UCC and AMR argue, but we take issue with their characterization of the West legal position. Nobody on the West wants to stop the merger. All we are demanding is that a final and binding arbitration be honored. That’s it.

The other two filings were USAPA’s motion to dismiss the West Pilots’ claim along with their memorandum in support. You can read these filings here and here. We can summarize both this way: (1) not ripe; (2) the DFR is a minor dispute and not a major dispute, meaning that we should be in front of another arbitrator instead of in federal court; and (3) that we fail to state a claim for several reasons. All we care to say about USAPA’s filings is that they present no new or novel arguments; what we read in them is exactly what we have heard all along. Nevertheless, we are delighted that the UCC and AMR argue quite persuasively in their filings that Addington II is ripe and should be adjudicated in Judge Silver’s court.

We have a busy docket ahead of us. Please review the scheduling order for a list of due dates. The final brief will be from the West and it is due on May 9th. Then there will be a joint status report filed by all the parties, followed by an in-court hearing on May 14th before Judge Silver. Once these briefs are submitted and once the hearing is completed, we expect that Judge Silver will rule on whether the West is entitled to a preliminary injunction that mandates use of the Nicolau. We expect that decision to arrive in late summer or early fall. If successful, then we will return to court to litigate over the issuance of a permanent injunction. That second process will likely involve a trial, just like the trial that was held before Judge Conrad in the US Airways suit against USAPA in North Carolina wherein witnesses were called and arguments were made.

Finally, we would like to announce that a Meet and Greet with the West attorneys is scheduled for Friday, May 17th at 9AM. The location is the Coast Phoenix Sky Harbor Hotel, 4300 East Washington Street, Phoenix, AZ 85034 in the Oasis Room, 602-273-7778. In the meantime, we thank you for your unwavering support. Six years ago, nobody believed the West pilot group would stick together. We did, and we do believe that all your faith, trust and support is about to pay off.

Have a great evening. 

Sincerely,

Leonidas, LLC

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On May 3, 2013, Attorneys for the West Pilots filed responses in the latest Addington case (Addington III – DFR 2). These filings are responses to USAPA’s Motion to Dismiss and a Reply in Support of our Motion for Preliminary Injunction. We highly recommend that you read these filings (Doc 52 & Doc 53).

The primary matter at issue in the pleadings is whether this matter is now ripe for decision. In our recent filings, we argue that the MOU is the single agreement called for in the Transition Agreement, finally making the DFR claim ripe. US Airways supported this argument in their Response to Motion for Preliminary Injunction (PI) filed last week (Doc 49). Specifically, the company stated in their pleadings that “the facts are entirely different and none of the contingencies at issue in Addington I (DFR I) are present here. To the extent a ‘final CBA,’ or a ‘new, single CBA’, is a prerequisite to ripeness of the DFR claim asserted by plaintiffs in this case, the requirement is satisfied.” The company also stated that: “[c]ontrary to USAPA’s argument, the material terms and conditions of employment for both East and West pilots following the merger are now known and fixed by the MOU.”

In addition to the ripeness issue, the reply and response documents counter a number of arguments made by USAPA, including that the ratification of the MOU was a waiver of the obligations under the Transition Agreement and/or the right to require implementation of the Nicolau award.

On Friday, May 3, 2013, the company also filed its reply in support of its Motion to Dismiss. Although the Company has weighed in on the ripeness issue in our favor, the Company has maintained the position throughout its pleadings that the Court does not have jurisdiction over the Company because this is a “minor dispute” that should be submitted to the System Board. We have argued that the “minor dispute” doctrine does not apply and that the Company is a necessary party to this action and to any preliminary injunction. The complete briefing on the Company’s Motion to Dismiss is available online. (Doc 54).

There have been some other developments with respect to the adversary pleading filed by USAPA in New York and the appeal pending in Addington II (Airways Declaratory Relief). After the bankruptcy judge, AMR and its creditors committee expressed doubts as to the propriety of USAPA’s adversary complaint, on April 25, 2013, USAPA voluntarily dismissed the adversary pleading pending in the AMR bankruptcy in New York. 

Also on Friday, the Ninth Circuit Court of Appeals denied the company’s request to stay their appeal and ordered an opening brief on June 5 followed by defendants’ answering briefs (West Class and USAPA) on July 5 and the optional reply 14 days later after service of the answers. It will be interesting to see how the Airways appeal proceeds while arguing a ripe case in Judge Silver’s court on a fact set that appears to moot the company’s claims in Addington II. 

We continue to have a busy docket. One final brief is due on May 9, 2013, and that is Defendant USAPA’s Reply to Plaintiff West Pilots’ Response to USAPA’s Motion to Dismiss. The following day, May 10, 2013, all parties will file a joint status report containing a proposed schedule for the May 14, 2013, 10 a.m. preliminary injunction hearing at the Sandra Day O'Connor U.S. Courthouse, 401 W. Washington Street, Phoenix, Arizona, Courtroom 601. 

When the hearing is complete, there is no timetable for a ruling from the Court. 

Finally, we would like to remind everyone of the Meet and Greet with the West attorneys scheduled for Friday, May 17, 2013 at 9a.m. The location is the Oasis Room of the Coast Phoenix Sky Harbor Hotel, 4300 East Washington Street, Phoenix, Arizona 85034 602-273-7778. 

In the meantime, we thank you for your unwavering support. Six years ago, nobody believed the West pilot group would stick together. We did, and we do believe that all of your patience, faith, trust and support will be rewarded. 

Sincerely, 

Leonidas, LLC 

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www.cactuspilot.com

"The majority, oppressing an individual, is guilty of a crime, abuses its strength, and by acting on the law of the strongest breaks up the foundations of society." - Thomas Jefferson

"An impartial arbitrator’s decision regarding an appropriate method of seniority integration is powerful evidence of a fair result. Discarding the Nicolau Award places USAPA on dangerous ground." – Judge Roslyn Silver.

Fellow America West pilots:

We are very pleased to update you on yesterday’s scheduling order from Judge Silver. You can read the order here. The scheduling order sets a very aggressive timeline to adjudicate whether USAPA is bound to use the Nicolau. Notably, Judge Silver recognized in this order that she is aware of the importance of this case as well as her familiarity with the facts and parties to it. Yesterday’s order is clearly a very positive development for all US Airways pilots. It is regrettable that we have wasted six valuable years while USAPA dithered in the dream of jettisoning the Nicolau simply because the majority willed it, but we cannot change the past. What we can do is look forward to finally moving beyond the impasse that USAPA created.

It has been a long struggle for all of the AWA pilots. Your perseverance is what nobody anticipated six years ago. We have held together, and we have held strong.

Sincerely,

Leonidas, LLC

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