September has been an extremely busy month for the West Pilots and our attorneys. Written discovery was issued by both our side and USAPA, resulting in the production of nearly 400,000 pages of documents. Fifteen West pilots were deposed for up to 4 hours each, with USAPA asking questions focused on opposing class certification, Leonidas finances and SLI fairness. Last week, our attorneys deposed 10 USAPA officers, BPR representatives and committee members over 4 days in Charlotte. The depositions in Charlotte were quite fruitful providing additional evidence to make our case. There is currently a protective order in place that prevents the release of certain documents and transcripts to the public.

By now, most know that the Addington III trial date was moved to October 22 to meet the needs of the court (Doc 174). There have also been a number of legal filings in recent weeks, which are discussed in detail below. Of most importance is Judge Silver’s Order on September 18, 2013, (Doc 194), which resolved the following issues pending before the Court: (1) class certification; (2) the Company’s Motion to Intervene; (3) two motions to quash subpoenas issued to Leonidas relating to USAPA’s request to obtain Leonidas’ financial records; and (4) USAPA’s Motion for Reconsideration.

Class Certification

In a prior order (Doc 122), “the Court instructed USAPA that if it planned on opposing certification in this case, it should present ‘substantially better arguments’ than what it presented in the past.” In Judge Silver’s words, “Unfortunately, USAPA did not listen.” (Doc 194).

As many of you are aware, USAPA has advanced the argument in this litigation that the West Pilots waived their right to pursue the Nicolau award because 98% of West Pilots voted in favor of the MOU. This was one of the arguments that USAPA advanced in opposing class certification. Again, in Judge Silver’s own words: “This argument cannot be taken seriously.” (Doc 194) (emphasis added). With respect to this argument, Judge Silver stated:

During the vote on the MOU, USAPA repeatedly assured all of its members that the vote would have no bearing on adoption of the Nicolau Award. In USAPA’s own words, “no East pilot should vote against the MOU because they fear that ratifying the MOU will implement the Nicolau Award, and no West Pilot should vote for the MOU because they believe the MOU will implement the Nicolau Award.” (Doc 136). In light of this and similar statements during the ratification vote, USAPA’s current position that the vote was a clear statement by the majority of the West Pilots that they are no longer interested in pursuing the Nicolau Award is very close to frivolous. (emphasis added).

In her order, Judge Silver certified the class of West Pilots and appointed Marty, Andy and Jennifer as class counsel. Judge Silver also found that notice was not required given the circumstances of this case and that our attorneys had been certified twice before.

Motion to Intervene

In its pleadings, the Company has indicated that it will only way in on two issues, the ripeness of the West Pilots’ claims against USAPA and the West Pilots’ right to participate in any McCaskill-Bond arbitration. (Doc 128) The West Pilots joined the Company’s Motion to Intervene, which of course USAPA tried to oppose. Last week, the Court once again disagreed with USAPA and granted the Company’s Motion to Intervene.

Leonidas Subpoenas

Over the past several weeks, USAPA has issued two subpoenas to Leonidas, seeking documents and testimony regarding, among other things, Leonidas’ financial records, including information regarding individual donors. Leonidas’ opposed this effort and last week the Court found that “USAPA has not been able to establish the relevance of the information sought by either subpoena.” (Doc 194). The effect of quashing these subpoenas is that Leonidas will not be required to respond to the subpoenas issued by USAPA.

Motion for Reconsideration

On September 5, 2013, USAPA filed a Motion for Reconsideration, asking Judge Silver to reconsider her prior orders regarding ripeness and to dismiss this litigation. This pleading was improper for a number of reasons, including that it was filed well past the deadline for doing so. However, under the local rules of procedure, the West Pilots could not respond to this motion until Judge Silver ordered them to do so. Judge Silver, however, apparently did not believe the Motion for Reconsideration warranted a response by the West Pilots and denied the motion. (Doc 194)

From the order that came out last week, it appears that USAPA wasted countless hours of their attorney’s time and our attorney’s time pursing legal strategies that were, as the Judge stated “very close to frivolous.” It is unfortunate that USAPA continues to pursue these strategies and attempt, yet again, to delay the resolution of this matter.

USAPA’s Ninth Circuit Filings

In addition to the above, USAPA also filed on September 13, 2013, a Petition for Writ of Mandamus with the Ninth Circuit Court of Appeals, Ninth Circuit Case No. 13-73215, Doc. 1 and a Motion to Stay, Doc. 3, essentially asking that the Court of Appeals direct Judge Silver to reverse her prior rulings on ripeness and stay the case until the Ninth Circuit could hear the issue.

The first filing, the Writ of Mandamus, is a request for a higher court to tell a lower court that they must, or must not, act. These types of writs are exceedingly rare in modern jurisprudence, mostly because for a writ to issue there must be a compelling reason not to wait until an appeal from a final judgment. Here, USAPA is arguing that Judge Silver erred in her determination that the case was ripe. USAPA made this argument to Judge Silver twice and she has disagreed both times. We at Leonidas don’t see how USAPA’s Writ has any hope of success, principally because the avenue for appeal after a final judgment is available to USAPA. Hence, there is no compelling need for the Ninth to issue the Writ. Similar to the Motion for Reconsideration that was summarily denied by Judge Silver, our attorneys believe that the Writ of Mandamus has no merit; however, we cannot respond to it until directed to do so by the Ninth Circuit. To date, we have received no such direction but are prepared to file a response should the Ninth Circuit direct us to do so.

The second filing was USAPA’s request that the Ninth Circuit stay the trial in the District Court. Within hours, Dr. Jacob drafted and filed a brief in opposition to USAPA’s motion with the Ninth Circuit (Dkt Entry 5). Procedurally, USAPA’s motion is fatally defective because according to the plain language of Rule 8 of the Federal Rules of Civil Procedure (FRCP), such a motion must first be filed at the District Court. Here, it was not. Also, Dr. Jacob succinctly identified the true motives of USAPA:

“In this latest effort to delay justice, USAPA moved for an “emergency” order to stay the District Court proceedings. USAPA did so on the eve of when its officers will have to explain their actions at depositions. If USAPA was sincere in its desire to conserve costs, it would not have delayed its motion, as it did, until after it subjected the class representatives to fifteen depositions that had little to no bearing on the merits of the claims. The timing of USAPA’s motion, therefore, is telling.”

Again, our attorneys believe that this latest stunt by USAPA is procedurally and factually improper and that it will be ignored or denied by the Ninth Circuit.

AMR Corporation’s Motion for Leave to Participate

On September 20, 2013, AMR Corporation filed a Motion for Leave to Participate as Amicus Curiae. This Motion can be found here: (Doc 196). Our attorneys do not intend to oppose the Motion.

Scheduling Order

After issuing her order taking care of several outstanding issues, Judge Silver entered the First Amended Scheduling Order agreed to by the parties. [Doc 195]. This document will govern the schedule going forward for the next several of weeks as we prepare for trial. It should be noted that if USAPA attempts to file a motion for summary judgment to further delay this matter, they are not permitted under the scheduling order to request a continuance of the trial date based on any motion. Our attorneys’ will be working hard the next few weeks to finalize our sections of the Joint Proposed Pretrial Order, due on October 9, 2013.

Where are we now?

If anything, the filings by USAPA over the past few weeks are proof to the world that USAPA’s primary strategy is still delay, in a hope to outspend the West and to prevent an adjudication of the DFR claim. This strategy is quite a bit different than the strategy sold to the East pilots back in April of 2008. Remember the confident pronouncements during the USAPA campaign that a DOH contract would be had within 90 days of USAPA’s certification? Fast forward five and a half years and look what USAPA has done to this pilot group, both East and West: cost it over $650 million in wages that it will never get back from the Company. For the sake of all US Airways pilots as we move towards the merger with American, we hope that this will be the end to this saga and that all of us can move forward with better wages.

The West never asked for this fight, but we are where we are. Now, the only thing the West can do is to continue to defend itself against a union whose sole purpose is to advance the seniority of certain East pilots at the expense of the West pilots. Your financial contributions are all that stand between your seniority rights and USAPA’s DOH. Our second trial is one month away and as anyone can surmise, we are in the most expensive part of any litigation which is trial preparation. In the last three weeks we have been forced to endure fifteen absolutely pointless depositions lasting four hours apiece. Present in each of those depositions were Marty, Andy or Jennifer. Additionally, USAPA has literally dumped tens of thousands of documents on us as a part of a discovery strategy: dump at the last minute thousands of documents in the hope that the West Pilots would not review them. To USAPA’s surprise and shock, West pilots painstakingly sifted through every one of USAPA’s documents, free of charge of course. We do this because we have to. It’s the right thing to do. If we don’t contribute with our voluntary efforts, then there is nothing to stop USAPA from stealing our seniority, and severely damaging Fair Representation for all US Airways pilots.

We have set up a special website called “ The Push For Justice” and its purpose is to meet our funding requirement for the trial and post-trial phases. We ask that each captain subscribe for $100 a month and each first officer $50 a month until our seniority rights are secured. Fellow pilots, this is it: fund now or forever hold your peace.

To all of the contributors to the West Pilot legal effort: thank you for getting us this far. Have a great week.

Sincerely, ,

Leonidas, LLC
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