Petition for Writ of Certiorari — United Airlines, Inc. v. Hart
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4 ~ FILED
1-2069
Now 92- JUN 25 1992
CLERK
IN THE
Siugrenw Cut of thy Wuited States
OCTOBER TERM, 1991
UNITED AIRLINES, INC.,
Petitioner,
V.
PAUL HART, DANE VANNICE, and MILTON HOWARD,
Respondents.
Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Tenth Circuit
PETITION FOR A WRIT OF CERTIORARI
ROBERT A. SIEGEL
(Counsel of Record)
O’MELVENY & MYERS
400 South Hope Street
Los Angeles, CA 90071
(213) 669-6000
JEFFREY |. KOHN
O’MELVENY & MYERS
153 East 53rd Street
New York, N.Y. 10022
(212) 326-2000
KRIS J. KOSTOLANSKY
ROTHGERBER, APPEL, POWERS
& JOHNSON
Suite 3000
One Tabor Center
1200 Seventeenth Street
Denver, CO 80202
(303) 623-9000
Attorneys for Petitioner
WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001
QUESTIONS PRESENTED
The United States Court of Appeals for the Tenth Cir-
cuit has misapplied the standards of this Court for de-
termining the most appropriate statute of limitations for
a claim under Section 43 of the Airline Deregulation
Act, 49 U.S.C. app. § 1552 (1988), thereby causing con-
fusion in the circuits not only over the most appropriate
statute of limitations for Section 43 claims but also over
this Court’s state-law and federal-law borrowing prin-
ciples generally. The questions thus presented are:
1. Whether under this Court’s borrowing standards fed-
eral courts should borrow a statute of limitations else-
where in the federal law for claims under Section 43
of the Airline Deregulation Act—a unique federal
statute with no precise complement in state law?
2. If state law is the borrowing source, whether under
propriate to borrow a state residual statute of limi-
tations for “all actions upon liability created by a
federal statute” for Section 43 claims, when such a
limitations rule is available in only four states, and its
application would significantly interfere with the fed-
eral policies at stake in Section 43?
(i)
ii
PARTIES TO THE PROCEEDINGS
Petitioner is United Airlines, Inc. Respondents are
Paul Hart, Dane Vannice, and Milton Howard.“
* As required by Rule 29.1 of this Court, petitioner states that
its parent companies, subsidiaries (except wholi, owned subsidi-
aries) and affiliates consist of UAL Corporation, Mileage Plus, Inc.,
U-C Corp., Air Wis Services, Inc., Covia Corporation, Cypher Cor-
poration, E & T Trading Corporation, United Airlimes Credit Cor-
poration, United Airlines Galileo Holding Company, United Aviation
Fuels Corporation, United Cogen, Inc., United Worldwide Corpora-
tion, and United Vacations, Inc. Covia Corporation owns 50%
equity interest in Covia Partnership, a Delaware general partner-
ship. Covia Corporation also owns 25.6% interest in The Galileo
Company Limited, a United Kingdom company.
QUESTIONS PRESENTED
PARTIES TO THE PROCEEDINGS
TABLE OF AUTHORITIES
OPINIONS BELOW
JURISDICTION
STATUTES AND REGULATIONS INVOLVED
STATEMENT OF THE CASE
A. Factual Background
B. Statutory Background
C. Proceedings Below
REASONS FOR GRANTING THE WRIT
I.
II.
CONCLUSION ............. Aten aaah aienaicetuthasniiss
TABLE OF CONTENTS
THIS COURT’S INTERVENTION IS NEC-
ESSARY TO RESOLVE A SPLIT IN THE
CIRCUITS CONCERNING AN ISSUE WHICH
HAS A SIGNIFICANT IMPACT ON THE FED-
ERAL POLICIES EMBODIED IN SECTION
43 OF THE DEREGULATION ACT AND HAS
EXEN THE SUBJECT OF MUCH RECENT
ede ah aa hash Sen ostitanpahcbsasncwnsiecs
A. The Decision Below Conflicts With Decisions
Of Other Circuit Courts of Appeals .............
B. The Decision Below Conflicts With Decisions
Of This Court And Presents Important
Issues Of Federal Law .........................0..........
THE TEST FOR BORROWING A STATE
LIMITATIONS RULE ADOPTED BY THE
COURT OF APPEALS IS CONTRARY TO
SUPREME COURT PRECEDENT
(iil)
11
11]
15
iv
TABLE OF CONTENTS—Continued
APPENDIX
Opinion of the United States Court of Appeals for
the Tenth Circuit in Charles Bowdry et al. v.
United Airlines, Inc. 956 F.2d 999 (10th Cir.
INT Ssh Sen pe, he sn ok a aoe edad
Memorandum Opinion and Order of the United
States District Court For the District of Colorado
in Charles Bowdry, et al., v. United Airlines, Inc.,
No. 88-S-1997 (D. Colo. 1991) ..............------------------
Statutes, Regulations, and Legislative Material__
Page
17
30
ee
¥
TABLE OF AUTHORITIES
Cases Page
Air Line Pilot Assoc., Int'l v. Department of
Transp., 791 F.2d 172 (D.C. Cir. 1986)... 25
Agency Holding Corp. v. Malley-Duff Assoc., Inc.,
483 U.S. 143 (1987) .|......00000000o... 13, 16, 17, 18, 20, 24
Alaska Airlines, Inc. v. Brock, 480 U.S. 678
Recension scadeanecnacacmanmeerinters: aeteee coma _.8, 9, 25
Bigelow v. Hawaiian Airlines, Inc., 696 F. Supp.
jane (oh ewes ieee... 11
Bowdry v. United Airlines, Inc., 956 F.2d 999
fo Gh ee OR ema MEN 6 ST 3, 21
Bowdry v. United Airlines, Inc., Case No. 88-5-
1977 (D. Colo. 1991), rev’d, 956 F.2d 999 (10th
GIN ED Scere ale ce ee ee ee me
Campbell v. Haverhill, 155 U.S. 610 (1895) ............. 15, 26
Crocker v. Piedmont Aviation, Inc., 696 F. Supp.
685 (D.D.C. 1988), rev’d on other séunid: 933
Pan neme Sa, Ca Bees... ee 12
DelCostello v. International Bhd. of Teamsters,
462 U.S. 151 (1983) _... ealtebeie nae _...15, 16, 17, 18, 20
Gonzalez v. Aloha Airlines, Inc., 669 F. Supp. 1023
(D. Hawaii 1987), rev’d, 940 F.2d 1312 (9th Cir.
1991) ...... ee EME Prk Cee at Mts ES ee 3, 12, 14, 23, 25, 27
Goodman v. Lukens ‘Steel Co., 482 U.S. 656
ff SERNAME Meredtce ne Ny sun ed Ml he Bal mao 27
Haggerty v. USAIR, Inc., 952 F.2d 781 (3d Cir.
ER We Mowe 3, 12, 18, 14, 19, 24, 25
Haggerty v. USAIR, Inc., No. 90-474 (W.D. Pa.
1991), aff'd, 952 F.2d 781 (3d Cir. 1992) .._.. 11,12
In re Data Access Sys. Sec. Litig., 843 F.2d 1537
(3d Cir.) (en banc), cert. denied, 488 U.S. 849
G RUUD povseienissnsaacdncsceszlabannsassoonemen tae 13
Lampf, Pleva, Lipkind, Prupis & Petigrow v.
Gilbertson, 111 S. Ct. 2773 (1991) passim
Long v. Trans World Airlines, Inc., 913 F.2d 1262
hi Be Se | baal n R E 3
McDonald v. Piedmont Aviation, Inc., 695 F. Supp.
133 (S.D.N.Y. 1988), aff’d, 930 F.2d 220 (2d
Cir.), cert. denied, 112 S. Ct. 441 (1991) __ 3, 12, 14, 23
vi
TABLE OF AUTHORITIES—Continued
Page
Savoy Faucet Co., 241 NLRB 51 (1979), enforced
without op., NLRB v. Savoy Faucet Co., 628 F.2d
1345 (2d Cir.), cert. denied, 449 U.S. 872
CRI cas ivernncensancstsarsncccerccinen ae eneteeneeanees 24
Occidental Life Ins. Co. v. EEOC, 432 US. 355
CEG saccosicscsvcnsexcoevkestnnsnsbonncuncacenesnnesseenenieeeieenaneeee 16
Punahele v. United Air Lines, Inc., 743 F. Supp.
PER CB. Cate. BORG D asciecicccses ccm 12, 20, 29
Reed v. United Transp. Union, 488 U.S. 319
II oaicccca so ackisreneica cas rcnceinerensies ene aaa 17, 18, 27
Robinson v. American Airlines, Inc., 908 F.2d. 1020
CUE. Chie. HD: nck sncn cai crcccciheesceepeetoeenccnecctannrants 3
Robinson v. Pan American World Airways, T77
F.2d 84 (2d Cir. 1985) -_........ BERN Nine. e's ecaateel 21
Wilson v. Garcia, 471 U.S. 261 (1987) pe he phn Sits passim
Statutes
Federal
Airline Deregulation Act of 1978, Pub. L. No. 95-
bs: OR MK: Fe ei eke eee 2
Judicial Improvements Act of 1990, Pub. L. No.
101-650, § 318(2), 104 Stat. 6114 ........................ 11
28 U.S.C. § 1254(1) ...... Bekele PRES tat AltA 2
SO ULB A... © Eo wicks nisitvicmconcnnnnnuneas 2, 24, 29
Be ID cesicaxnadscnecussecreaves oie ....2, 9, 9, 18, 24
Oe OOO i iciescasienntinaetn ees 26
I P osscaseccastisnipchenaeeteetarereee 26
BD TF Ae. 0 IR sivsinssexastksnckavsercrssansipnccasexemmoanienen 19
49 U.S.C. App.
I ic icesiascacatdconcsnanedassswbnideasiatadieatieaae 3
§ 1552(a) ....... dssaripellac chic dues eka eevee eee 8
BD II TED cvssiccstaninnnnsanstintéccigsniiacacictaubeanepeaetan 3,8
2) lt eee shh ale eae ana er
fi | neers A 5
8 1562 (e) ................... vesinsea eepoamasaanneiane 3
§ 1552 (h) (1) ............... ocRLCy aude apueateee ae 6
§ 1552 (j) -........ ss chichipeinn bane cpabeneunbenneoe eames 3
vii
TABLE OF AUTHORITIES—Continued
State Page
Aris. Rev. Stat. Amm. & 1E-GEl ... ....00.. sce scccc cc ecccac. ee 21
Colo, Rev. Stat. § 13-80-102 (1) (g) aceceseseennescfBOtn
§ 24-34-402 (1) (a) . oo Oi, Seer 2, 29
NII os ttc os <a) cc ec sanceasesacoes a SS
fF ak anes Rael akea me ROP 2
§ 8-3-108(1) (a) .......... TaN R atl 2
ES) 1) Gel eer. -. ae
fb) aie Mooney St
Haw. Rev. Stat. § 657-11 ............. nd Cae 21
Neb. Rev. Stat. § 25-219 _..... = 21
Wyo. Stat. § 1-8-106(a) (ii) (CB) ........00000.0200 coe... 21
Wyo. Stat. § 1-3-115 _.... Seba aoe ates 21
Legislative Materials
Bills
H.R. 3173, 102d Cong., Ist Sess. (1991) _........ 4
S. 1565, 102d Cong., Ist Sess. (1991) _...... ; 4
Congressional Reports
S. Rep. No. 631, 95th Cong., 2nd Sess. 113-117
(1978) .. eer
Federal Register
44 Fed. Reg. 19146, 19150-51 (1979)
47 Fed. Reg. 41304, 41306 (1982)
ew)
No bo
Administrative Materials
Code of Federal Regulations
29 C.F.R. § 220...
§ 220 App. I
§ 220.21...
§ 220.25 (c)
§ 220.26 (a)
§ 220.40(a)
_
as
bo
c
ho bh bd bo *
nN Ww
io
bo
DO bo ww
won do
Administrative Adjudications
National Airlines Acquisition, 84 C.A.B. 408
€i a) ) or eeinebisandeies DAR AR PAIR: ee 25
IN THE
Supreme Court of the United States
OCTOBER TERM, 1991
UNITED AIRLINES, INC.,
Pe titione -
V.
PAUL HART, DANE VANNICE, and MILTON HOWARD,
Re sponde nts.
Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Tenth Circuit
PETITION FOR A WRIT OF CERTIORARI
United Airlines, Inc. hereby petitions this Court for
issuance of a writ of certiorari to review the decision of
the United States Court of Appeals for the Tenth Circuit
entered in this proceeding on February 13, 1992.
OPINIONS BELOW
The opinion of the court of appeals, reversing the dis-
trict court, is reported at 956 F.2d 999 (10th Cir. 1992),
and is reprinted in Appendix (“App.”) A (la).' The
opinion of the district court is unreported, and is re-
printed in App. B (17a).
' Citations to material printed in the annexed Appendix appear
. ”
as “——-a”’,
2
JURISDICTION
The opinion and judgment of the court of appeals was
entered on February 13, 1992. A timely petition for re-
hearing aud suggestion for rehearing en bane was denied
on March 27, 1982. The jurisdiction of this Court is in-
voked under 28 U.S.C. § 125411) (1988).
STATUTES AND REGULATIONS INVOLVED
seclicn 43 of the Airline Deregulation Act of 1978,
49 U.S.C. app. § 1552 (1988) (30a).
Sections Sta!(3) and 10¢b) of the National Labor
Relations Act, 29 U.S.C. $$ 158141 (3), 1601b) (1988)
(36a),
Department of Labor regulations under Section 43 of
the Airline Deregulation Act of 1978, 29 C.F.R. § 220
ef seq. (1991) (41a), :
Department of Labor proposed regulations under Sec-
tion 43 of the Airline Deregulation Act, 44 Fed. Reg.
19146, 19150 | March 30, 1979) (68a).
Colorado Revised Statutes, § 13-80-10211)(g) (38a),
Colorado Labor Peace Act, Colo. Rey. Stat. $$ 8-3-106,
-108(1) (a), -110(1), -110(16) (39a), and Colorado Em-
ployment Practice Provisions, $§ 24-34-40211) (a), -403
(40a).
’ The statutes and regulations involved are reprinted in
App. C.
STATEMENT OF THE CASE
This case involves a section of the Airline Deregulation
Act of 1978, Pub. L, No. 95-504, 92 Stat. 1705 (codified
in snon-contiguous sections of 49 U.S.C. app. (1988)
(hereinafter “Deregulation Act”)) which has been the
subject of much litigation in the past few years. It spe-
cifically presents two important questions of federal law:
(1) whether the federal courts should borrow a statute
of limitations from elsewhere in the federal law for
claims under a unique federal statute, Section 48 of the
3
Deregulation Act, 49 U.S.C. app. § 1552 (1988) ,° and
(2) if state law is the borrowing source, whether the
court of appeals, by borrowing a Colorado residual statute
of limitations relating to all actions based on a federal
statute, satisfied this Court’s longstanding principles for
borrowing the most analogous state cause of action.*
* Section 43 of the Deregulation Act provides a hiring preference
and financial assistance benefits to certain airline employees who
lose their jobs during the ten-year deregulatory period. 49 U.S.C.
app. $$ 1552(b), (d) (1988).
* The Supreme Court has heard only one case under § 43 of the
Deregulation Act. In 1987, this Court held that the one-house
legislative veto in § 43 was severable from the remainder of the
statute. Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987). In its
decision, the Court appeared to acknowledge the availability of a
private right of action under S$ 43, although the issue was not before
the Court. Jd. at 687 n.9 (citing McDonald v. Piedmont Aviation,
Inc., 625 F. Supp. 762, 766 (S.D.N.Y. 1986) ).
Since Alaska Airlines the federal courts have uniformly recognized
an implied private right of action in § 43, but they have continued
to struggle with other issues left open by Congress, such as:
(i) the appropriate statute of limitations for a $ 43 claim, (ii) the
appropriate remedy for a violation of $43, (iii) whether a pro-
tected employee is obligated to notify an air carrier of his § 43
rights when applying for a job, (iv) what hiring qualifications an
air carrier can apply in deciding to accept or reject job applicants
who have rights under § 43, and (v) the circumstances where first-
hire rights are lost. See, e.y., Bowdry v. United Airlines, Inc., 956
F.2d 999 (10th Cir. 1992) : Haggerty v. USAIR, Inc., 952 F.2d 781
(3d Cir. 1992); Gonzalez v. Aloha Airlines, Inc., 940 F.2d 1312
(9th Cir. 1991); McDonald v. Piedmont Aviation, Inc., 930 F.2d
220 (2d Cir.), cert. denied, 112 S. Ct. 441 (1991); Long v. Trans
World Airlines, Inc., 913 F.2d 1262 (7th Cir. 1990); Robinson v.
American Airlimes, Inc., 908 F.2d 1020 (D.C. Cir. 1990).
Federal courts will continue to struggle with the questions raised
in this Petition. While § 43 gives a hiring preference to certain
airline employees only if they are “furloughed or otherwise termi-
nated” before October 24, 1988, 49 USC. app. § 1552(d) (1988),
these employees may exercise their first-hire rights, unless other
wise extinguished, until the last day the Secretary of Labor is re-
quired to make payments under § 43—which under §$ 43(e) is 72
months from October 24, 1988, or October 24, 1994. 49 U.S.C. app.
§$ 1552(b), (e), (j) (1988). Moreover, given the recent Eastern
This Court has established standards for borrowing a
statute of limitations for a federal statute which has none.
First, a federal court must determine whether all claims
under the federal statute should be characterized uni-
formly, or whether the claims should be e\ aluated differ-
ently depending upon the factual circumstances and legal
theories in each individual case.' Second, if the claims
ander 2 federal statute should be characterized uniformly,
4 court must next decide whether state or federal law is
the most appropriate borrowing source for the limitations
period. In answering this second inquiry, federal courts
must consider whether state limitations rules would frus-
trate or interfere with the federal policies at stake in
the federal statute, and whether a federal statute of
limitations truly affords a closer fit with the cause of
action at issue than does any available state law source.
The Court of Appeals for the Tenth Circuit miscon-
strued the nature of the inquiry required at each step.
First, in deciding whether claims under Section 43 should
be characterized uniformly, the Tenth Circuit erroneously
coneluded that claims under a federal statute are to be
characterized uniformly only where the statute “ ‘encom-
pass[es| numerous and diverse topics and subtopics.’ ’
(13a n.6, quoting Lampf, Pleva, Lipkind, Prupis & Peti-
and Pan Am bankruptcies, bills have been introduced in both the
Senate and the House of Representatives to extend first-hire rights
under $423(d) to employees who are furloughed or terminated be
tween October 24, 1988 and October 94. 1995. H.R. 3173, 102d
Cong., Ist Sess. (1991); S. 1565, 102d Cong., Ist Sess. (1991).
Therefore, litigation under § 43 is not likely to come to an end for
several years.
4A “uniform characterization” does not mean the same time limi-
tation from state to state. Rather, a federal court, for purposes of
federal- or state-law borrowing, must first determine whether to
characterize all possible claims under a federal statute in a uniform
way because of the federal interests in predictability and judicial
economy. See Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbert-
son, 111 S. Ct. 2773, 2779 (1991).
grow v. Gilbertson, 111 S. Ct. 2773, 2779 (1991) (cita-
tions omitted; emphasis in original).) Finding that See-
tion 43 encompasses only one type of claim (i.e., a fail-
ure to hire), the court of appeals believed that its “bor-
rowing” inquiries were at an end and that it “must find
in each state the statute that is ‘most analagous.’” (13a
n.6 (emphasis added). )
Given its incorrect assumption, a view that is not
supported by judicial precedent, the Tenth Circuit failed
to analyze whether the limitations period should be de-
rived from a federal source instead of a state statute
of limitations. The court of appeals did not accord any
weight, let alone discuss, the federal policies at stake in
Section 43, the multi-state nature of a Section 43 claim.
and whether application of state limitations rules would
significantly interfere with federal policies.
Not surprisingly, the Tenth Circuit’s perfunctory analy-
Sis leaves the circuits divided over whether to adopt an
analogous federal or state limitations period for Section
43 claims. In decisions issued only ten months apart,
the Third Circuit joined the majority of district courts
in borrowing a federal statute of limitations for Sec-
tion 43 actions, while the Tenth Circuit now joins the
Second and Ninth Circuits in borrowing state law. Based
on an analysis of the policies at stake in Section 43, and
the multi-state nature of the claims, the Third Circuit
concluded that state limitations periods significantly in-
terfere with the important federal policies at stake in
Section 43. Relying on this Court’s decisions which have
approved federal-law borrowing in certain circumstances,
the Third Circuit borrowed a six-month limitations period
for an unfair labor practice charge for discriminatory
hiring under Section 10(b) of the National Labor Rela-
tions Act (“NLRA’’), 29 U.S.C. § 160(b) (1988). The
Third Circuit and a majority of the district courts have
found a far closer fit between Section 43 and an unfair
labor practice under the NLRA than between Section 43
and any state-law cause of action.
J
6
With regard to the second issue presented in this Peti-
tion, the Tenth Circuit mechanically borrowed a_ state
residual limitations period for “all actions upon liability
created by a federal statute.” Colo. Rev. Stat. § 13-80-
102(1) (gi. In reaching this conclusion, the Tenth Cir-
cult disregarded the fundamental state-law borrowing
principles of this Court which require federal courts to
borrow the limitations rule for the most analogous state
cause of action similar to the federal cause of action at
issue.
This Court’s intervention is necessary to resolve the
confusion in the circuits and to reinforce to the federal
courts the proper analysis for borrowing limitations
periods. Because the Tenth Circuit’s ruling is in conflict
with decisions of this Court and other circuits, and raises
important questions of federal law and for the airline in-
dustry generally, it warrants examination by this Court.
A. Factual Background
On September &, 1989, plaintiffs-respondents Paul Hart,
Milton Howard, and Dane Vannice (collectively “Re-
spondents”), were joined as plaintiffs in a lawsuit that
had been filed in the United States District Court for the
District of Colorado against petitioner United. tespond-
ents, along with the other plaintiffs in this lawsuit, allege
that they are “protected employees” under the Deregula-
tion Act, which means employees who as of October 24.
1978, had at least four years of employment with an
airline then certificated by the Civil Aeronautics Board
(“CAB”). 49 U.S.C. app. $1552(h) (1) (1988). They
allege that United violated Section 43 by rejecting their
applications for employment.
Each of the fourteen plaintiffs in this lawsuit were
formerly employed by Frentier Airlines (“Frontier”),
which declared bankruptcy in August 1986. On October
17, 1986, the bankruptcy court approved the Frontier-
OO
7
Continental Job Preservation and Litigation Sett'ement
Agreement (the “JPA”). The JPA was an agreement
between Frontier, its parent People Express, Ine., Conti-
nental Air Lines, Ine. (“Continental”), and the Frontier
unions representing the plaintiffs in this lawsuit. includ-
ing Respondents and other Frontier union emp!oyees. The
JPA required Continental to take certain action in con-
nection with its acquisition of Frontiers assets. Under
the JPA, each of the Frontier employees, inciuding Re-
spondents, was given the option to obtain employment
with Continental in their occupational specialties based
upon the availability of vacancies and their relative sen-
iority or to accept cash and or flight passes in lieu of an
employment opportunity. Some of the plaintiffs in this
lawsuit, but not Respondents, accepted the opportunity to
obtain employment with Continental. Respondents chose
to accept cash and/or flight passes, thereby refusing an
employment opportunity with Continental.’
Beginning in November 1987, each of the Respondents
sought ground support positions with United that were
similar to positions they held at Frontier. Hart submit-
ted an application for employment to United on Novem-
ber 9, 1987. Howard and Vannice waited until March
1988 to submit an application for employment to United.
ach of the Respondents then waited until September 8,
1989 to commence an action against United in which they
alleged that the air carrier had violated Section 43 of
the Deregulation Act by failing to hire them.
5 Continental is one of the air carriers covered by § 42 of the
Deregulation Act. 29 C.F.R. § 220. App. I (1991) (57a).
*In an opinion letter, the Department of Labor concluded that
Frontier employees who accepted a job with Continental lost their
first-hire rights under § 48. The Department of Labor never ad-
dressed the case of Respondents, however, who rejected employment
at Continental and, instead, obtained benefits that they believed were
more advantageous than employment with another air carrier covered
under Section 43.
B. Statutory Background
In 1978, when Congress passed the Deregulation Act
mandating the phase-out of economic regulation of domes-
tie aviation, Congress predicted that deregulation would
increase airline industry employment overall. S. Rep. No.
631, 95th Cong., 2d Sess. 113, 115 (1978) (hereinafter
“Senate Report”) (59a). At the same time, Congress
recognized the possibility that some employees might lose
their jobs as a direct result of the Deregulation Act. Id.
at 113. As “insurance” against this contingency, it en-
acted Section 43 which authorized certain benefits for
protected employees.
Section 43 provides two closely linked components of
employee protection. First, if an air carrier experienced
severe work force contractions or bankruptcy as a result
of the Deregulation Act, its furloughed or terminated
protected employees were entitled to monthly assistance
payments and other monetary benefits from the federal
government. See 49 U.S.C. app. § 1552(a), (b), (e)
(1988). As the second part of the program, selected air-
lines (i.e., CAB-certificated carriers as of October 24,
1978) have to give a hiring preference to qualified pro-
tected employees who are terminated by other certificated
carriers. See 49 U.S.C. app. §$ 1552(d) (1988). The
right of first-hire component was intended to complement
the financial assistance component by making new jobs
available to protected employees, thereby “decreas|[ing|
the cash payments required under the program.” Senate
Report at 115-16.
Since Congress was uncertain about the need for and
the dimensions of an employee protection program in an
act whose purpose was deregulation,’ it failed to provide
* There is support in the legislative history for the proposition
that Congress did not believe that the program would be necessary,
and that the provision was included as a “contingency” to address
a “theoretical possibility.” Senate Report at 113-15. Subsequently,
Congress elected not to appropriate any funds for the financial
9
a mechanism for enforcement of Section 43 or a time
limit for bringing claims.
C. Proceedings Below
On September 8, 1989, Respondents joined as parties
in a lawsuit brought by former employees of Frontier in
the United States District Court of Colorado. On June
7, 1990, United filed a motion for summary judgment
seeking, inter alia, dismissal of Respondents’ claims on
the grounds that their claims were time-barred and that
they were not eligible for first-hire rights under Section
43 because they had not accepted employment at Con-
tinental.
In a written opinion issued January 18, 1991, the dis-
trict court (Judge Daniel B. Sparr) held that a six-month
statute of limitations applied to any claim under Section
43. The district court recognized that its task was to
apply the “most closely analogous statute of limitations.”
(24a-25a.) Applying this Court’s horrowing standards,
Judge Sparr recognized that Colorado's residual limitations
period for claims based upon all federal statutes “is not
most analogous to the [Deregulation Act} and is thus
inapplicable.” (25a.) Instead. Judge Starr found that
two Coloradc state statutes were the most analogous to
Section 43 claims: Colo. Rev. Stat. § 8-3-110(16) (Six-
month limitation period for unfair labor practices from
the Colorado Labor Peace Act) and Colo. Rev. Stat.
§ 24-34-403 (six-month limitation period for a discrimi-
natory refysal to hire from the Colorado Employment
Practice Provisions). (25a.)* The district court also held
assistance component of the program. See Alaska Airlines, 480 U.S.
at 681.
* The district court said that it need not decide whether a federal
limitations rule would be more analogous to § 43 claims. The two
Colorado causes of action analogous to § 43 contained the same time
limitations period as the federal time limitation United had proposed
—the six-month rule for unfair labor practices in the NLRA. 29
U.S.C. § 160(b) (1988). (24a.)
LU
that Respondents lost their designated status as protected
employees entitled to a first-hire right as of the date they
rejected employment opportunities with Continental and,
instead, elected to receive either a cash payment and, or
airline passes pursuant to the JPA. (21a.)
On February 13, 1992, the court of appeals reversed
both rulings. The Tenth Circuit held that the district
court should have applied Colorado’s two-year residual
statute of limitations for “‘{a]ll aetions upon liability
created by a federal statute where no period of limita-
tion is provided in said statute.’”? (14a, quoting Colo.
Rev. Stat. § 13-86-102(1) (g).) The court of appeals also
held that Section 43 does not require protected employees
to accept employment opportunities with other certificated
carriers. ( 10a.)
REASONS FOR GRANTING THE WRIT
This case presents questions of fundamental impor-
tance under federal law affecting the airline industry
generally. Congress added Section 48 to the Deregula-
tion Act in 1978 to provide temporary assistance to dis-
located airline employees to help them find employment
quickly in their occupational specialties. Senate Report at
116. The Tenth Circuit opinion, however, rewrites Sec-
tion 43 by allowing Respondents to reject an employment
opportunity with an air carrier, Continental, wait one
year to apply to another air carrier, United, and delay
filing a lawsuit against United for up to two. years after
they are not hired by United.
As argued in Part I below, a single statute of limi-
tations borrowed from federal law is far better suited
to promote the federal policies of Section 43, to prevent
forum shopping, and to avoid continuing litigation over
the collateral issue of which statute of limitations applies
to a Section 43 claim. As the Third Circuit and a ma-
jority of district courts have held, an unfair labor prac-
tice charge for discriminatory hiring under the NLRA,
————————eeio
1]
which is governed by a six-month limitations period, is
a far closer analogy to Section 43 and the source from
Which the limitations rule ought to be borrowed.”
As argued in Part If below, this Court has long held
that in looking to state law, a court must borrow the
limitations period from the “most analogous” state cause
of action, so long as the limitations rule is not inconsist-
ent with the federal policies at stake in the federal stat-
ute. Ignoring this Court’s “borrowing” standards, the
Tenth Circuit adopted a state residual limitations rule
for all actions created by a federal statute. Such a state
rule, given its scope, cannot possibly embody the federal
policies at stake in Section 43, a unique creation of fed-
eral law.
ARGUMENT
I. THIS COURT’S INTERVENTION IS NECESSARY
TO RESOLVE A SPLIT IN THE CIRCUITS CON-
CERNING AN ISSUE WHICH HAS A SIGNIFICANT
IMPACT ON THE FEDERAL POLICIES EMBODIED
IN SECTION 43 OF THE DEREGULATION ACT
AND HAS BEEN THE SUBJECT OF MUCH RE-
CENT LITIGATION
A. The Decision Below Conflicts With Decisions Of
Other Circuit Courts of Appeals
The circuit courts of appeals have reached directly con-
flicting answers to the question of whether a federal or
State statute of limitations should be applied to Section
43. The Third Circuit and a majority of district courts ™
* Although Congress has passed the Judicial Improvements Act
of 1990, Pub. L. No. 101-650, § 313(a). 104 Stat. 5114, 28 U.S.C.
§ 1658, thereby filling the interstices in federal law by the enactment
of a four-year statute of limitations, the Act applies only to legisla-
tion passed after 1990.
10 See Bowdry v. United Airlines, Inc., Case No. 88-S-1997 (D.
Colo. 1991), rev'd, 956 F.2d 999 (10th Cir. 1992): Huggerty v.
USAIR, Inc, No. 90-474 (W.D. Pa. 1991), aff'd, 952 F.2d 781 (3d
Cir. 1992); Bigelow v. Hawaiian Airlines, Inc., 696 F. Supp. 1356,
12
have held that a single federal statute of limitations would
better serve the purpose of Section 43. The Tenth Circuit
has now joined the Second and Ninth Cirenits in holding
that state law should be the source of the limitations
period.
The conflict is graphically demonstrated in the split
between the Tenth and Third Circuits. The Tenth Cir-
cult below turned to state law as the source for the limi-
tations period, reasoning that the practice of the federal
courts is to borrow a limitations period from state law.
(lla.) In turning to state law, however, the court of
appeals failed to discuss the federal policies at stake in
Section 43, whether or not state rules would frustrate
or interfere with these federal policies, and whether or
not a federal statute provided a closer analogy to Section
43 than any state-law alternative. The Tenth Circuit me-
chanically borrowed a Colorado residual rule to fill the
gap left by Congress in Section 43—a statute, the court
of appeals acknowledged, where Congress had left “much
of the legislative task undone.” (11a, n.5.)
Only six weeks earlier on January 2, 1992, the Third
Circuit, reviewing the same provision of the Deregulation
Act, came to the opposite conclusion. In Haggerty v.
USAIR, Inc., 952 F.2d 781 (8d Cir. 1992), the court of
1359 (D. Hawaii 1987); Gonzalez v. Aloha Airlines, Inc., 669 F.
Supp. 1023 (D. Hawaii 1987), rev'd, 940 F.2d 1312 (9th Cir.
1991) ; cf. Punahele v. United Air Lines, Inc., 743 F. Supp. 758, 759-
60 (D. Colo. 1990) (applying six-month statute of limitations under
Colorado state law or the NLRA). Only two district courts have
adopted the ad hoc approach of borrowing state statutes—reaching
different conclusions regarding the most analogous state-law rule.
See Crocker v. Piedmont Aviation, Inc., 696 F. Supp. 685, 690-92
(D.D.C. 1988) (applying three-year D.C. catch-all statute of limita-
tions to claim for backpay), rev’d on other grounds, 933 F.2d 1024
(D.C. Cir. 1991) ; McDonald v. Piedmont Aviation, Inc., 695 F. Supp.
133, 138 (S.D.N.Y. 1988) (applying three-year tort statute of limita-
tions), aff'd, 930 F.2d 220 (2d Cir. 1991), cert. denied, 112 S. Ct.
441 (1991),
13
appeals recognized that its task was to “first ascertain
if a uniform statute of limitations is necessary and, if
it is, analyze the federal policies at stake in order to
determine whether we should borrow a federal or state
statute.” /d. at 785. Given the important federal policies
embodied in Section 43 and the multi-state industry it
covers, the Third Circuit held that Section 43 would best
be served, first, by characterizing all claims under the
statute uniformly, and, second, by adopting a single stat-
ute of limitations borrowed from an analogous federal
labor law. Jd. The Third Circuit recognized that the
goal of Section 43—to create a speedy and effective mech-
anism to assist a specific group of airline employees—
“would be obstructed if there were uncertainty over the
collateral matter of the applicable statute of limitations.”
Id. at 786. The court found that Section 10(b) of the
NLRA, 29 U.S.C. $160(b) (1988), which provides a
six-month statute of limitations for unfair labor practice
charges, provides a close analogy. 952 F.2d at 787. The
Third Circuit explained that the “very transitory nature”
of Section 43 “suggests the inadvisability of a statute of
limitations that would far outlast the effective date of
the program.” Jd. at 788."
Two other circuits have borrowed a statute of limita-
tions from state law in Section 43 actions, although neither
"The Third Circuit’s analysis in Haggerty v. USAIR is similar
to the analysis of the same court in In re Data Access Sys. Sec.
Litig., 843 F.2d 1537 (3d Cir.) (en banc), cert. denied, 488 U-S.
849 (2588). In that case, the court of appeals reevaluated its
decisional law applying state statutes of limitations to actions under
$ 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b),
and SEC Rule 10b-5, 17 C.F.R. § 240.10b-5. Based on this Court’s
reasoning in Agency Holding Corp. v. Malley-Duff Assoc., Inc., 483
U.S. 143 (1987), the Third Circuit reversed its prior cases and held
that a federal statute of limitations applied in §10(b) and Rule
10b-5 cases. 843 F.2d at 1545. In Lampf, Pleva, Lipkind, Prupis &
Petigrow v. Gilbertson, 111 S. Ct. 2773 (1991). this Court agreed
with the Third Circuit and other circuits and applied a federal
statute of limitations to a cause of action under $10(b) of the
Securities Exchange Act of 1934. Jd. at 2781.
+
+s
of these couris engaged in the inquiry required by this
Court, as did the Third Circuit. The Second Circuit in
McDoneid v. Piedmont Aviation, Inc., 980 F.2d 220 (2d
Cir.), cert. denied, 112 S. Ct. 441 (1991), analogizing a
Section 43 claim to a tort claim and applying a three-year
Massachusetts statute of limitations for tort actions, ob-
served only that the policy of Section 43 “would not be
frustrated by the application of a state rule... .” Jd. at
294." The Ninth Circuit in Gonzalez v. Aloha Airlines,
Inc.. 940 F.2d 1312 (9th Cir. 1991), like the Tenth
Cireuit here, borrowed a two-year Hawaii statute of lim-
itations applying to any suit brought in state court seek-
ing recovery authorized by federal statute. Jd. at 1315-16.
Although the Ninth Circuit briefly discussed the federal
policies at stake in Section 43, id. at 1315, the court de-
clined to borrow a six-month federal statute of limitations
from the NLRA, as the Third Circuit had done in Hag-
gerty v. USAIR, on the ground that Section 43 does not
direcly involve the relationships between unions and
their members or between unions and employers. /d."
4
In the wake of the Tenth Circuit’s decision, the courts
of appeals now appesr to be of three minds on Section
13: (1) given the federal policies at stake in Section 43,
the Third Circuit, along with a majority of district
courts, would borrow a statute of limitations of short
luration from wnother federal statute—-the six-month
limitations period from Section 10(b) of the NLRA, (2)
the Second Circuit would borrow a three-year state lim-
12 In his certiorari petition to this Court in McDonald v. Piedmont,
petitioner McDonald raised only the issue of damages, and not the
statute of limitations issue raised here.
18 As discussed more fully below, the Ninth Circuit's distinction
is inaccurate. The Third Circuit, which strongly disagreed with the
Ninth Cireuit on this point, noted that the level of unionization in
the airline industry is nearly 90 percent. Haggerty v. USAIR, 952
F.2d at 787 (citations omitted). Moreover, the Third Circuit cor-
rectly observed that $43 was inserted in the Deregulation Act at
the insistence of labor unions. Jd.; see infra at 25.
a Te
15
itations rule for tort actions, and (3) the Ninth and
Tenth Circuits would borrow a two-year state residual
statute of limitations for lawsuits brought under a fed-
eral statute. This Court’s intervention is necessary to
resolve the conflict in the Circuits and to confirm that
the Tenth Circuit’s incorrect borrowing analysis, sce infra,
should not be followed.
B. The Decision Below Conflicts With Decisions Of
This Court And Presents Important Issues Of Fed-
eral Law
In adopting a limitations period for Section 43 claims,
the Tenth Circuit misapplied this Court’s longstanding
“borrowing” principles. As explained more fully below,
the court of appeals assumed that claims under a federal
statute can be characterized uniformly only where the
federal statute encompasses multiple claims. On the
basis of this faulty assumption, the court of appeals
mechanically turned to state law. If the Tenth Circuit
had applied this Court’s standards properly, it should
have concluded that (i) all claims under Section 43 can
be characterized uniformly, (ii) state law significantly
interferes with the federal policies at stake in Section
43, and (iii) a shorter statute of limitations borrowed
from Section 10‘b) of the NLRA provides a far closer
fit to claims under Section 43, a federal statute that
creates a right that does not exist at common law and
is not complementary or supplementary to any right un-
der state statutes.
This Court has long held that where a federal statute
fails to specify a limitations period within which federal
claims may be brought, resort to an analogous state-law
cause of action remains the norm for borrowing a limita-
tions period. See Wilson v. Garcia, 471 U.S. 261, 266-67
(1985) ; DelCostello v. International Bhd. of Teamsters,
462 U.S. 151, 171-72 (1983); Campbell v. Haverhill, 155
U.S. 610, 616 (1895). While this Court has generally
directed courts to look to the most analogous cause of
16
action under state law, it has also instructed that where
state statutes of limitations would conflict with the sub-
stantive purpose of the federal action, courts should con-
sider applying a single statute of limitations derived from
another federal law. Agency Holding Corp. v. Malley-
Duff & Assoc., Inc., 483 U.S. 148, 147-48 (1987), quot-
ing DelCostello, 462 U.S. at 171-72.
This Court has cautioned that a state legislature rarely
enacts a limitations period with federal interests in mind.
Occidental Life Ins. Co. v. EEOC, 482 U.S. 355, 367
(1977). In describing the task of the lower courts in
borrowing statutes of limitation, this Court has noted
that federal courts must not “mechanically applly] a
state statute of limitations because the limitations period
is absent from a federal statute.” Jd. This Court ex-
plained that it is “the duty of the federal courts to assure
that the importation of state law will not frustrate or
interfere with the implementation of federal policies.”
Id. (citations omitted).
Calling the determination “a delicate one,” this Court
has formulated a set of inquiries for ascertaining whether
state or federal borrowing is more appropriate. A fed-
eral court must initially determine whether claims under
a federal statute should be characterized uniformly.
Lampf, 111 S. Ct. at 2779; Agency Holding, 483 U.S. at
147: Wilson v. Garcia, 471 U.S. at 268. This is generally
a question of federal law. Agency Holding, 483 U.S. at
147: Wilson v. Garcia, 471 U.S. at 268-69. With resnect
to this initial inquiry, the question is not whether the
same time limitation should be applied throughout the
United States but, even more simply, whether all claims
arising out of the federal statute ‘“ ‘should be character-
ized in the same way or should be evaluated differently
depending upon the varying factual circumstances and
legal theories presented in each individual case.’”’ Agency
Holding, 483 U.S. at 147 (quoting Wilson v. Garcia, 47]
TTS at 268). Where all claims under a federal statute
Li
arise cut of a similar set of factual circumstances, this
Court has devoted less time to the inquiry. See Del-
Costello, 462 U.S. at 165-66. It is only in cases where
claims under the federal statute may arise out of diverse
factual circumstances, aid be analogized to multiple
state causes of action, that this Court has been con-
strained to discuss the issue at great length. See Agency
Holding, 4838 U.S. at 149: Wilson v. Garcia, 471 U.S.
at 273.
If a uniform characterization is appropriate, as it
plainly is here as shown below, a court must next decide
Whether a state or a federal cause of action should be
the source of the limitations period. Lampf, 111 S. Ct.
at 2779; Agency Holding, 483 U.S. at 147; Wilson v.
Garcia, 471 U.S. at 268. While the practice generally
has been to borrow a state limitations period, when a
federal statute “ ‘clearly provides a closer analogy than
available state statutes, and when the federal policies at
stake and the practicalities of litigation make that rule
a significantly more appropriate vehicle for interstitial
lawmaking,’”’ this Court has turned away from state
law and adopted a single federal limitations period for
all claims under the federal statute at issue. Agency
Holding, 483 U.S. at 148, quoting DelCostello, 462 U.S.
at 171-72. In considering whether to look for a source
from elsewhere in the federal law, federal courts must
consider whether state rules would frustrate or signifi-
cantly interfere with federal! policies. Reed v. United
Transp. Union, 488 U.S. 319, 324 (1989); Agency Hold-
ing, 483 U.S. at 147.
The Tenth Circuit either misapplied or failed to ad-
dress each of these inquiries. First, the court of appeals,
misreading this Court’s decisions in Agency Holding,
Wilson, and Lampf, concluded that claims under a fed-
eral statute should be characterized uniformly only if
the federal cause of action “ ‘encompassl/es], numerous
and diverse topics and subtopics, such that a single state
limitations period may not be consistently applied within
a
a jurisdiction.’”’ (18a, n.6, quoting Lampf, 111 S. Ct. at
2779 (citations omitted; emphasis in original).) The
court of appeals reasoned that since claims under Section
43 do not involve a variety of factual scenarios, there
is no need for federal courts to adopt a uniform charac-
terization of claims under the statute. (13a.) On the
basis of this erroneous reading of this Court’s borrowing
principles, the court of appeals bypassed other important
borrowing inquiries and concluded that it “must find in
each state the statute that is ‘most analogous,’ which
may vary from state to state.” (13a, n.6.)
This Court has never suggested that only federal causes
of action involving diverse factual circumstances can
meet this initial “borrowing” inquiry. When dealing
with any federal statute without a statute of limita-
tions, whether simple or complex, this Court has in-
structed courts to decide whether federal interests com-
pel that claims under the statute “should be character-
ized in the same way, or whether they should be evalu-
ated differently.” Wilson v. Garcia, 471 U.S. at 268.
Under this standard, the threshold question for federal
courts is whether a simple, uniform characterization of
a federal statute better promotes the federal interests in
predictability, judicial economy, and best fits the federal
statute’s remedial purpose. Reed v. United Transp. Union,
488 U.S. at 325-26; Wilson v. Garcia, 471 U.S. at 272-73.
This Court has in the past answered that question in the
affirmative even when all claims under the federal statute
arise out of similar factual circumstances, as do claims
under Section 43. See Reed, 488 U.S. at 325-26 (char-
acterizing all claims arising out of § 101(a)(2) of the
Labor-Management Reporting and Disclosure Act in the
same wavi; DelCostello, 462 U.S. at 165 (character-
izing uniformly a hybrid breach of contract duty of fair
representation claim under § 301 of the Labor Manage-
ment Relations Act)."
14The Tenth Circuit’s assumption was based on the Court’s deci-
sions in Agency Holding and Wilson v. Garcia. In Agency Holding,
1D
The Third Cireuit in Haggerty v. USAIR explained
that the initial inquiry of characterization “really entails
an analysis of whether claims under a statute are enough
alike so that a uniform statute of limitations should be
applied to all of them, at least on a state by state basis.”
952 F.2d at 784. It concluded that because all Section
43 claims arise out of a similar factual matrix, there was
an even stronger basis for a uniform characterization
than in complex statutes such as RICO and 42 U.S.C.
$ 1983. Jd. at 786. Moreover, the Third Circuit analyzed
the federal interests in characterizing Section 43 claims
uniformly. The court of appeals believed that the goals
of Section 43, a transitional labor statute, would be ob-
structed if there were uncertainty and time-consuming
litigation as to the collateral question of the appropriate
statute of limitations. /d.
The Third Cireuit’s conclusion is compelling. A lack
of uniform treatment among the many state jurisdictions
in which furloughed employees may exercise their Sec-
: tion 43 rights would cause uncertainty for both multi-
state air carriers and employees. A simple, uniform
characterization of this federal statute is undoubtedly
better suited to avoid forum-shopping and a waste of
judicial resources. The Tenth Circuit never considered
these points—-deciding instead, after incorrectly stating
the Court chose to characterize uniformly causes of action under
RICO, a statute which has been construed to prohibit a variety of
conduct. 483 U.S. at 149. Similarly, the Court in Wilson v. Garcia
characterized claims under 42 U.S.C. § 1983 uniformly. 471 U.S.
at 273. In neither case did the Court reserve a determination of
uniformity only for federal statutes that encompass a variety of
claims. In fact, in Wilson v. Gareia, this Court agreed with the
conciusion of the lower court (which happened to be the Tenth Cir-
cuit) that $ 1983 claims should be treated uniformly “even though
$1983 encompasses a wide variety of factual situations and legal
theories ....” 7d. at 265, citing Wilson v. Garcia, 731 F.2d 640,
651 (10th Cir. 1984) (emphasis added).
6 EE —————————VV
20
the initial inquiry, that it must go directly to state law.
(12a-13a.}"
The Tenth Circuit also failed to address the other
issues of the borrowing inquiry: whether application of
state rules would significantly interfere with the federal
policies at stake in Section 43, and whether a rule from
elsewhere in the federal law clearly provides a closer
analogy than available state statutes. Lampf, 111 S. Ct.
at 2779; Agency Holding, 483 U.S. at 148; DelCostello,
462 U.S. at 171-72. In answering the first of these two
questions, this Court has instructed the federal courts to
“accord particular weight to the geographic character of
the claim.” Lampf, 111 S. Ct. at 2779. The Tenth Cir-
cuit, however, addressed none of these questions.
Section 43, like RICO, covers the national scene. Pro-
tected employees may sue air carriers in every jurisdic-
tion to which they fly and in which they have employees.
Therefore, the timeliness of a Section 43 claim may de-
pend upon the location of the air carrier, the residence
of the protected employee, and the particular state in
which the protected employee submits his employment
application. If federal courts were to rely on the patch-
work of state law for borrowing purposes, rejected job
applicants might shop for the most favorable limitations
period and air carriers could be subject to a different
statute of limitations from state to state."
15 The confusion that exists to date is likely to produce further
litigation in this area. As demonstrated above, there is disagree-
ment within the circuits and within the district courts over the
most analogous state law to borrow. See supra at 11 & n.10, 14-15.
Furthermore, the state residual statute of limitations borrowed by
the Tenth Circuit is presently codified in only three other states
besides Colorado. See infra at 21.
16 Until this issue is finally settled, air carriers might even be
subjected to more than one statute of limitations within each state.
Two federal courts, applying Colorado law in two separate lawsuits,
have subjected United to two different statutes of limitations in § 49
actions, compare Punahele v. United Air Lines, Inc., 743 F. Supp.
758, 759-60 (D. Colo. 1990) (six-month statute of limitations under
21
The Tenth Circuit’s decision creates practical litigation
problems as well. Our review of the statutes of limita-
tions in the fifty states indicates that only four states
in the United States have statutes of limitation for liabil-
ity created by a federal statute. See Colo. Rev. Stat.
§ 13-80-102(1) (gi; Haw. Rev. Stat. § 657-11 (Supp.
1991); Neb. Rev. Stat. § 25-219 (1989); Wyo. Stat.
$ 1-3-115 (1977). Based on the conclusion of the Tenth
Circuit, air carriers would have to litigate the limita-
tions issue in 46 states. Twenty-five states also have
residual statutes of limitations for liability based upon :
a statute (without expressly referring to a federal stat-
ute); the statutes of limitations in those states range
from one year, Ariz. Stat. Ann. § 12-541 (1992), to eight
years, Wyo. Stat. § 1-3-105(a) (ii) (B) (1977), with most
being three or six years. Thus, borrowing state statutes
of limitations for claims under Section 43 can lead only
to multiple limitations periods. This is precisely what
federal policy seeks to avoid. Cf. Robinson v. Pan Am.
World Airways, 777 F.2d 84, 87-88 (2d Cir. 1985)
(“Where an industry is national rather than local and
there is a particular federal interest in speedy, orderly
resolution of disputes, the application of conflicting state
time periods interferes with the goal of the legislation
and is inappropriate.”’).
The problem is compounded because Section 43 of
the Deregulation Act encourages dislocated employees,
through relocation assistance, to look for employment in
states outside of their states of residence. 49 U.S.C. app.
§ 1552(¢c) (1988). Respondents Hart and Howard stated
on their United employment applications that they would
be willing to relocate. Under the Tenth Circuit’s holding,
a claim against a single air carrier could be time barred
Colorado law or the NLRA) with Bowdry v. United, 956 F.2d at
1006 (two-year statute of limitations under Colorado law), further
demonstrating the appropriateness of a uniform federal statute of
limitations in this case.
SS
y 24
in one state and viable in another depending qn where
the job vacancy arose. Such an anomalous result could
not have been intended under a regulatory system that
has created a national “Center to maintain a comprehen-
sive listing of all vacancies listed by air carriers . .
29 C.F.R. § 220.40(a) (1991).
A state limitations rule, giving a protected employee a
cushion of two or more years to sit on his rights, also
significantly interferes with the federa! interests at stake
in Section 43. The first-hire right was devised as a
means of making employment opportunities available to
protected employees, thereby “‘decreas|ing| the cash pay-
ments required under the program.” Senate Report at
116. The dual purpose of moving employees into jobs
and ending federal financial assistance payments points
to a short limitations period requiring protected employ-
ees to act quickly. In view of Congress’s intent to move
eligible protected employees off assistance and into jobs
only a short statute of limitations can accomplish that
goal."
17 The need for prompt action is reflected in the proposed regula-
tions issued by the Department of Labor on March 30, 1979 to
implement § 43. 44 Fed. Reg. 19146 (1979) (67a). These proposed
regulations included an administrative mechanism for resolving an
employee's claim concerning his first-hire rights. Under § 638.15 of
the proposed regulations, an employee could file a complaint with the
area administrator of the Labor-Management Services Administra-
tion regarding an alleged denial of his rights under § 48. 7d. at
19150-51 (67a). The proposed regulations provided that the com-
plaint “must be filed within 90 calendar days of the alleged denial of
the first right of hire.” Jd. at 19151 (emphasis added). This pro-
posed rule was never finalized because the Department of Labor
later conculded that it had no enforcement powers under § 43. See
47 Fed. Reg. 41304, 41306 (1982). Nevertheless, it reflects the
preliminary interpretation of the federal agency responsible for § 49
In addition, the reguiations iinally promulgated further illustrate
the need for quick resolution of disputes arising under § 48. 29
C.F.R. § 220 et seq. (1991). The Department of Labor has estab-
lished a 60-day period for employees to challenge a determination
by their former employer that the employee is not a protected em-
23
Finally, the Tenth Circuit disregarded the question of
whether federal law provides a more closely analogous
limitations period than possible state-law alternatives.
Section 43 provides a unique federal claim—implied from
the statute—challenging a failure to hire certain employ-
ees who had worked in the airline industry under gov-
ernment regulation and who were “furloughed or other-
wise terminated” during the first ten years of deregula-
tion. 49 U.S.C. app. § 1552(d) (1988). Section 43 is not
complementary or supplementary to any remedy under
state law. Cf. Wilson v. Garcia, 471 U.S. at 273 (§ 1983
claim arguably analogous to state tort claims for false
arrest, assault and battery, or persona! injuries). There
is no state statutory or common law right to an equiva-
lent remedy. It truly has no precise counterpart under
state law.
Distilling the essence of a cause of action under Sec-
tion 43, each claim enforceable under the statute is, in
reality, an arbitrary or discriminatory refusal to hire a
member of a specific class of employees in violation of a
federal statute. See, e.g., Gonzalez v. Aloha Airlines, 940
F.2d at 1314; McDonald v. Piedmont, 930 F.2d at 225.
Section 43 claims, therefore, should be so characterized
for statute of limitation borrowing purposes."
As the Third Circuit and a majority of district courts
have recognized, the federal courts have available to them
a federal statute very similar to that at issue here. The
most appropriate statute of limitations to apply to a
ployee under the Deregulation Act. Jd. § 220.25(c), 220.26(a)
(1991). This provision further supports the conclusion that. all
disputes arising under § 43 must be expeditiously resolved.
'S The Department of Labor regulations reinforce the idea that
§ 43 is designed to prohibit arbitrary or discriminatory treatment.
The regulations permit an air carrier to apply its regular hiring
qualifications to protected employees, 29 C.F.R. § 220.21 (1991),
implying that an air carrier can violate $43 if it applies its hiring
qualifications to protected employees in an arbitrary or discrimina-
tory manner.
24
Section ‘43 claim is the six-month statute of limitations
for claims under Section 8(a)‘3) of the NLRA, 29
U.S.C. § 158(a) (3) (1988). Section 8(a) (3) makes it
unlawful for an employer “by discrimination in regard
to hire or tenure of employment . . . to encourage or
discourage membership in any labor organization.” /d.
Employers who refuse to hire a job applicant because of
his union or non-union activities or membership, rather
than for a legitimate business reason, violate Section
8(a)(3) of the NLRA. See, e.g., Savoy Faucet Co., 241
NLRB 51 (1979), enforced without op., NLRB v. Savoy
Faucet Co., 628 F.2d 1345 (2d Cir.), cert. denied, 449
U.S. 872 (1980).
Section 43 of the Deregulation Act and Section
8ia)(3) of the NLRA are each federal labor statutes
designed to protect a specific group of employees from a
hiring decision based on non-legitimate reasons—in the
case of Section 43, protected employee status, and in the
case of the NLRA, union or non-union status. Both laws
create purely statutory rights that do not exist in com-
mon law. Furthermore, both statutes are designed to
promote stability in the labor market. Moreover, as the
‘Third Cireuit recognized, an employee “asserting the
right to first hire under |Section 43] is in an analogous
position to a permanently replaced economic striker who
has six months to file charges of unfair labor practice
funder the NLRA] if s’he has not been reinstated after
the replacement quits or is terminated.” Haggerty, 952
F.2d at 787. Respondents’ claim thus resembles an un-
fair labor practice for discriminatory hiring, 29 U.S.C.
§ 158(a) (3) (1988), which has a six-month limitations
period under Section 10(b) of the NLRA, id. § 160(b).""
19In Agency Holding, this Court concluded that RICO and the
Clayton Act were analogous for statute of limitations purposes,
even though one statute seeks to eradicate the operation of an
enterprise through a pattern of racketeering activity and the other
seeks to eliminate anti-competitive conduct. 483 U.S. 150-51. Al-
though the NLRA and the Deregulation Act serve different pur-
ee
25
The Ninth Circuit was incorrect in dismissing the
application of Section 10(b) of the NLRA solely because
it believed Section 43 does not implicate collective bar-
gaining or union-management relations. See Gonzalez v.
Aloha Airlines, 940 F.2d at 1315. Section 43 is not
at all divorced from union-management relations or col-
lective bargaining. As this Court and the Third Cir-
cuit have noted, it was at the urging of union leaders
that Congress included Section 43 in the Deregulation
Act to provide protection similar to the protection af-
forded employees in the heavily unionized railroad indus-
try. Alaska Airlines, 480 U.S. at 692 n.16; Haggerty,
952 F.2d at 787.°° Moreover, Section 43 is a federal
codification of labor protective provisions that today are
subjects of the collective bargaining process for the en-
tire airline industry. Before deregulation, the CAB had
conditioned its approval of mergers and acquisitions in
the airline industry on the surviving carrier’s acceptance
of labor protective provisions, such as compensation for
layoffs and lost seniority rights. E.g., Air Line Pilots
Assoc. Intl v. Department of Transp., 791 F.2d 172
(D.C. Cir. 1986). Following passage of the Deregula-
tion Act, the CAB announced that it would henceforth
not impose labor protective provisions absent exceptional
circumstances and advised labor unions to seek such pro-
tections through the collective bargaining process. See
National Airlines Acquisition, 84 C.A.B. 408, 475 (1979)
(“LPPs will no longer be imposed as a matter of course.
poses, § 8(a)(3) and § 43 are analogous because they accord em-
ployees special protection in the context of the employer-employee
relationship.
20 Indeed, Respondents, who are all Union members, seek relief in
this case that would require United to hire them and award them
retroactive seniority as far back to 1988. Such relief, if granted,
would adversely affect other unionized United employees in terms of
adjustments in seniority. Since these United employees are innocent
bystanders, fairness dictates that any action under § 43 commence
quickly.
26
or because tradition dictates their use. We therefore ad-
vise labor to negotiate its own merger protections through
the collective bargaining process at the first opportu-
nity.”). Therefore, Section 43 directly implicates a mat-
ter that is the subject of collective bargaining in the
airline industry.”
This Court should grant review to resolve the confusion
in the Circuits and to assure that its borrowing rules are
applied correctly by the federal courts. As demonstrated
above, and by the Third Circuit and the majority of dis-
trict courts, application of state-law rules conflicts with
the federal interests at stake in Section 43. The conflict
‘and confusion concerning this important federal statute
in the airline industry provide compelling reasons for
granting certiorari.
Il. THE TEST FOR BORROWING A STATE LIMITA-
TIONS RULE ADOPTED BY THE COURT OF
APPEALS IS CONTRARY TO SUPREME COURT
PRECEDENT
The Tenth Circuit’s state-borrowing analysis is in di-
rect conflict with this Court’s longstanding decisions.
For close to a century, this Court has held that when
Congress has failed to provide a statute of limitations
for a federal cause of action, federal courts are to bor-
row the limitations period from a state cause of action
similar in nature to the case at hand. Campbell v. Haver-
hill, 155 U.S. 610, 617 (1895) (“Congress . . . intended
21 Conceding in the courts below that there “is clearly no ‘most
analogous’ state statute” of limitations, Respondents argued that if
any federal] statute should apply to § 43, it is the Age Discrimination
in Employment Act, 29 U.S.C. § 621 et seg. (1988) (“ADEA”). But
under the ADEA, like other federal employment statutes, an em-
ployee must act quickly to preserve a claim. An employee must file
a charge of employment discrimination within 180 days (or 300 days
in a deferral state) after the alleged unlawful practice occurred.
29 U.S.C. § 626(d)(1) (1988).
|
27
to subject such action to the general laws of the State
applicable to actions of a similar nature’) (emphasis
added); see also Wilson v. Garcia, 471 U.S. at 266-67.
In borrowing state law, this Court has examined the es-
sential nature of the federal claim to determine the most
analogous state cause of action and limitations rule. See
Reed v. United Transp. Union, 488 U.S. at 334; Goodman
v. Lukens Steel, 482 U.S. 656, 661-62 (1987).
The court of appeals below neither examined the essen-
tial nature of a Section 43 claim nor explained why a
Colorado residual statute is somehow the most analogous
state limitation period. Indeed, no meaningful analogy
can be drawn between a Section 43 claim and a Colorado
rule relating to every lawsuit based upon a federal stat-
ute lacking a limitations period. Colo. Rev. Stat. § 13-80-
102(1) (g).** The only analogy, marginal as it is, is that
Section 43 is a “federal statute’ without a limitations
period. That characterization is merely a description of
Section 43’s source—not, as this Court requires, a charac-
terization of the essential nature of a Section 43 claim.
Cf. Reed v. United Transp. Union, 488 U.S. at 326 (be-
cause LMRDA § 101(a)(2) “protects rights of free
speech and assembly, and was patterned after the First
Amendment, it is readily analogized for the purpose of
borrowing a statute of limitations to state personal injury
actions.”); Wilson v. Garcia, 471 U.S. at 276 (choice of
*2 The Ninth Circiut also borrowed a state limitations period for
actions to enforce a right created by a federal statute. Gonzalez v.
Aloha Airlines, 940 F.2d at 1316. The Ninth Circuit’s adoption of
that state limitation period under Hawaii law does not support the
Tenth Circuit’s decision to reach a like conclusion under Colorado
law. In Gonzalez, the only state statutes of limitations presented to
the court by the parties concerned claims created by federal law and
a state catch-all limitations period. Jd. at 1315. Given the choice
of the two state statutes, it is not surprising that the court in Gon-
zalez chose the limitations period for claims created by federal law.
The possible analogous state statutes of limitations available under
Colorado law are not so limited.
|
28
uniform state statute of limitations for recovery of.dam-
ages for personal injuries “is supported by the nature
of the § 1983 remedy... .”). .
Federal courts must adopt a state statute of limitation
that best serves federal policy. A _ state legislature’s
selection of differing limitations periods for different
causes of action is “grounded in its evaluation of the
characteristics of those claims relevant to the realistic
life expectancy of the evidence and the adversary’s rea-
sonable expectations of repose.” Wilson v. Garcia, 471
U.S. at 282 (O’Connor, J., dissenting). When the state
legislature has presumably considered the essential ele-
ments of the same or an analogous state cause of action,
the state statute is then close enough to fill the void in
federal law. Wilson v. Garcia, 471 U.S. at 271 (“[bly
adopting the statute governing an analogous cause of
action under state law, federal law incorporates the
State’s judgment on the proper balance between the poli-
cies of repose and the substantive policies of enforce-
ment embodied in the state cause of action”) (emphasis
added).
The Tenth Circuit failed adequately to consider the
substantial federal policies at stake in Section 43 when
it borrowed Colorado’s two-year residual rule. Explain-
ing its decision to borrow this rule, the Tenth Circuit
reasoned that “Colorado has specifically weighed the in-
terests of its citizens who may assert federal rights.”
(15a.) However, in enacting Colorado’s two-year residual
statute for all actions created by a federal statute, Colo.
Rev, Stat. § 13-80-102(1)(g), the Colorado legislature
did not weigh the interests of its citizens pertaining to
a Section 48 claim.** In adopting this legislative deter-
mination, the Tenth Circuit failed to assess the underly-
23 In fact, given the multi-state nature of a § 43 claim, see supra
at 20, many § 43 plaintiffs will not be citizens of the state in
which the action is brought.
29
ing policies relevant to determining the appropriate
Statute of limitations as required by this Court.*
The district court, unlike the Tenth Circuit, did engage
in this analysis. Had the Tenth Circuit properly applied
this Court’s state-law borrowing principles, it would have
adopted the statute of limitations in either the Colorado
Labor Peace Act, Colo. Rev. Stat. § 8-3-110(16) (six-
month limitation), or the Colorado Employment Practice
Provisions, Colo. Rev. Stat. § 24-34-4083 (six-month limi-
tation). These Colorado state statutes involve causes of
action that are clearly more analogous to a Section 43
claim than the claims embodied in the Colorado resid-
ual limitations rule. Like Section 438, the Colorado Em-
ployment Practice Provisions circumscribe “an employer’s
discretion in hiring decisions based on certain applicant
characteristics.” Punahele, 743 F. Supp. at 760. Under
the Colorado Employment Practice Provisions, an em-
ployer can refuse to hire someone for legitimate business
reasons, e.g., an applicant who does not meet the em-
ployer’s hiring qualifications. Colo. Rev. Stat. § 24-34-
402‘1)(a). Similarly, Section 43 prohibits an em-
ployer from refusing to hire a_ protected employee
unless the job applicant does not meet the employer’s
qualifications and requirements for the job. 29 C.F.R.
§ 220.21 (1991). Moreover, Section 48, like the Colorado
Employment Practice Provisions, specifically proscribes
hiring decisions on the basis of age. 49 U.S.C. app.
§ 1552(d) (1988); Colo. Rev. Stat. § 24-34-402(1) (a).
The Colorado Labor Peace Act, Colo, Rev. Stat. § 8-3-110
(1), like Section 8(a) (3) of the NLRA, 29 U.S.C. § 158
(a) (3) (1988), prohibits an employer from discriminat-
ing against a job applicant because of his membership or
“4 In Punahele v. United Air Lines, the district court in Colorado
explicitly rejected the use of Colo. Rev. Stat. § 13-80-102(1)(g) for
actions under § 43 of the Deregulation Act. While the court acknowl-
edged that § 43 is a federal statute, it observed that it “still must
locate and apply the statutory period found in the state statute most
analogous to the [Deregulation Act].” 743 F. Supp. at 760 (emphasis
in original).
30
non-membership in a union. It, too, is a far closer fit
than the Colorado residual limitations period adopted by
the Tenth Circuit.
This Court should review the decision of the court of
appeals because its decision not only creates confusion in
the circuits, but its analysis disregards the fundamental
state-law borrowing principles to which this Court has
long adhered.
CONCLUSION
For the foregoing reasons, the Petition should be
granted.
Respectfully submitted,
ROBERT A. SIEGEL
(Counsel of Record)
O’MELVENY & MYERS
400 South Hope Street
Los Angeles, CA 90071
(213) 669-6000
JEFFREY I. KOHN
O’MELVENY & MYERS
153 East 53rd Street
New York, N.Y. 10022
(212) 326-2000
KRIS J. KOSTOLANSKY
ROTHGERBER, APPEL, POWERS
& JOHNSON
Suite 3000
One Tabor Center
1200 Seventeenth Street
Denver, CO 80202
(303) 623-9000
Dated: June 25, 1992 Attorneys for Petitioner
APPENDICES
ye os ag Sy es pr eee
RR DE
TABLE OF CONTENTS
Page
. Opinion of the United States Court of Appeals for
the Tenth Circuit ........... SDE RE Es CoS x la
. Memorandum Opinion and Order of the United
States District Court for the District of Colorado... 17a
. Statutes, Regulations and Legislative History 30a
la
APPENDIX A
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
No. 91-1054
CHARLES Bowpry, Bop BERGER, RALPH ESTILL, JAMES
HARTZER, RICH KENNON, LOREN MACH, GLENN MUL-
LINS, NORMAN RANKIN,AND RUSSELL ESTILL,
Plaintiffs,
and
PAUL HART, MILTON HOWARD, and DANE VANNICE,
Plaintiffs-A ppellants,
¥.
UNITED AIR LINEs, INC.,
Defendant-A ppellee.
Feb. 13, 1992
John Mosby (Elisa Moran, with him on the briefs),
Denver, Colo., for plaintiffs-appellants.
Kris J. Kostolansky (Michael D. Nosler and Frank
Lopez, with her [sic] on the brief) of Rothgerber, Appel,
Powers & Johnson, Denver, Colo., for defendant-appellee.
Before SEYMOUR, and ANDERSON, Circuit Judges,
and Aldon J. ANDERSON, District Judge.*
STEPHEN H. ANDERSON, Circuit Judge.
* Honorable Aldon J. Andersen, Senior Judge, United States
District Court for the District of Utah, sitting by designation.
; | |
2a
Appellants Paul Hart, Dane Vannice and Milton How-
ard appeal from a district court order granting sum-
mary judgment to United Air Lines, Inc. (“United’’)
and dismissing their complaint against United for alleg-
edly violating its duty to accord them their first right of
hire under section 43(d) of the Airline Deregulation Act
of 1978 (the “Act’”’), 49 U.S.C.App. § 1552(d).
Before us are two issues: first, whether appellants re-
linquished their first right of hire under section 43(d)
of the Act by rejecting an offer for employment in their
occupational specialty; and second, whether the district
court properly held that the statute of limitations for
actions brought under section 43(d) of the Act is six
months. Because we find the district court improperly
ruled on both issues, we reverse.
I
The appellants were employed with Frontier Airlines,
Inc. (‘Frontier’) until Frontier ceased operations and
filed for bankruptey in August of 1986. During the
Frontier bankruptcy proceedings, a motion was filed seek-
ing approval of a Job Preservation Agreement (the
“JPA’”) between Frontier, its parent, Continental Air-
lines, Ine. (“Continental”), and various Frontier unions
representing appellants and other Frontier union em-
ployees. See Appellee’s Appendix, Ex. C. The JPA was
designed to eliminate the majority of claims against the
Frontier estate in order to advance Continental’s pur-
chase and utilization of Frontier’s assets. Under this
agreement the participating employees would waive cer-
tain claims against Frontier and Continental, and in
return receive either the opportunity to be employed with
Continental, as vacancies became available, or a payment
in cash and/or Continental flight passes. /d. Each appel-
lant, foregoing the option to accept the employment oppor-
tunity, chose a payment of cash and/or passes. United
presented evidence that had appellants chosen the employ-
Vee
3a
ment option, they would have received employment in their
occupational specialty from Continental. Appellants chal-
lenged the inference drawn from that evidence.
Subsequently, on different occasions, each appellant
sought unsuccessfully to obtain employment with United.
Appellants with other plaintiffs then brought an action
against United, alleging that United failed to accord them
their first right of hire to which they were entitled under
section 43(d) of the Act. Upon United’s motion for sum-
mary judgment, the district court dismissed the complaint
as to the appellants, holding that they had lost their first
right of hire prior to the time United refused to offer
them employment. The district court also held in con-
junction with a summary judgment motion against appel-
lant Vannice, that a six month statute of limitations
applied to this claim, although it denied summary judg-
ment, because there were still questions of material fact
<8 to when the limitations period commenced.
IT.
In reviewing the district court’s order, we must first
decide whether the court properly ruled that the appel-
lants were not protected employees that had been “fur-
loughed or otherwise terminated” within the meaning of
section 43(d) of the Act, and therefore not entitled to a
first right of hire by United. In connection with this, we
must consider United’s argument that under section 43
(d), taken as a whole, an employee that rejects an offer
of employment in his or her occupational specialty by a
covered airline relinquishes the first right of hire.
In reviewing a summary judgment order, we apply the
same standard applied by the district court under Fed.R.
Civ.P. 56(¢). E.g., Osgood v. State Farm. Mut. Auto. Ins.
Co., 848 F.2d 141, 143 (10th Cir.1988). The inquiry is
Whether there are any genuine issues of material fact, and
whether the moving party was entitled to judgment as a
| |
4a
matter of law. Jd. “{Wle must view the record in a light
most favorable to the parties opposing the motion for sum-
mary judgment.” Deepwater Investments, Ltd. v. Jackson
Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991).
In enacting the Airline Deregulation Act, Congress in-
cluded an Employee Protection Program (the “EPP”) to
protect airline employees from the potentially harsh con-
sequences of deregulation. This program consists of two
parts: a monthly assistance program for eligible employees
that have been dislocated, and a duty by covered airlines
to hire protected employees before hiring other, non-
protected applicants. It is the latter that concerns us here.
In relevant part, section 43(d) of the Act provides:
Each person who is a protected employee of an air
carrier which is subject to regulation by the Civil
Aeronautics Board who is furloughed or otherwise
terminated by such an air carrier (other than for
cause) prior to the last day of the 10-year period
beginning on October 24, 1978 shall have first right
of hire, regardless of age, in his occupational spe-
cialty, by any other air carrier hiring additional
employees which held a certificate issued under sec-
tion 1371 of this title prior to October 24, 1978.
Each such air carrier hiring additional employees
shall have a duty to hire such a person before they
hire any other person, except that such air carrier
may recall any of its own furloughed employees
before hiring such a person.
49 U.S.C. App. § 1552(d) (1) (emphasis added).
Subsection (h) (1) defines a “protected employee” as “‘a
person who, on October 24, 1978, has been employed for
at least 4 years by an air carrier holding a certificate
issued under section 1371 of this title.” 49 U.S.C.App.
€ 1552(h) (1). There is no dispute that all appellants fall
within that definition. Nor is there a dispute that both
Frontier and United are air carriers holding a section
1371 certificate.
ee
5a
The initial dispute lies over the proper construction of
the phrase “furloughed or otherwise terminated by such
an air carrier (other than for cause).”
The rules and regulations promulgated by the Secretary
of Labor under authority of section 43(f) of the Act, 49
U.S.C.App. $ 1552(f), are relevant to this question.
Tracking the language of the statute, these regulations
provide that a person entitled to a first right of hire (a
“designated employee”) is a “protected employee who is
involuntarily placed on furlough or is terminated by a
covered air carrier during the eligibility period.” 29
C.F.R. § 220.10(a). However, “a protected employee shall
not be deemed to be furloughed or terminated” if such
employee “resigned or voluntarily quit for any reason.”
29 C.F.R. § 220.10(b) (6).
The district court relied on this language to dismiss the
appellants’ complaint. It equated the acceptance of sev-
erance benefits and the voluntary decision to “discon-
tinue” working, albeit with another airline, with resign-
ing or quitting. However, we cannot agree with that
characterization. To have lost their entitlement, logically,
the appellants would have needed to resign or quit from
either Frontier or Continental. The appellants are quick
to point out, with the record’s support, that in fact, they
never resigned or voluntarily quit the employ of Frontier
and that they never resigned or voluntarily quit the em-
ploy of Continental.
It is beyond dispute, that the appellants were ter-
minated by Frontier when it ceased its operations and
declared bankruptcy. Opinion Letter, U.S. Department of
Labor, Case No. 244B at 2 (March 29, 1988) (“Opinion
Letter”), Appendix of Appellants, Tab 13, Ex. 2 (“There
is no question that all the protected employees of the
Frontier became eligible for designated status upon the
cessation of airline operations by the carrier on August
24, 1986.”). Likewise, it is beyond dispute that the
appellants never worked for Continental and therefore
i i nei
6a
could not possibly have resigned voluntarily from its em-
ploy. Further, the continuity between employment at
Frontier and the potential employment at Continental
was not such that the decision to refuse employment with
Continental is tantamount to quitting the Frontier job.
Cf. Id. (the JPA’s provision for “employment at com-
pletely different airline” could not be viewed as a recall).
Recognizing this, United offers a variation on the dis-
trict court’s reasoning. While it does not (and cannot)
base its argument squarely on any language of the
statute or the regulations, it argues from the policy of the
statute and by analogy of the regulations. The operative
fact from United’s perspective is that each employee re-
jected a ready-made offer by Continental for employment
in his occupational specialty. (Although, in fact, the
appellants rejected an offer to receive the right to an
offer of employment, as jobs became available.) By doing
so, argues United, the appellants relinquished their desig-
nated status. According to United, since the purpese of
the Act was to provide designated employees with em-
ployment in their occupational specialty, should they in-
voluntarily lose their jobs, an employee that has but
rejects an offer in his or her occupational specialty is
in the same position as others who lose their first right
of hire, such as (1) a protected employee who has a
job with a covered airline but quits or resigns, see 29
C.F.R. § 220.10(b) (6); (2) a designated employee who
after having lost a job actually obtains a new one, see
Opinion Letter at 3-3; or (3) a designated employee who
is recalled by his former carrier, see 29 C.F.R. § 220.10
(ec). In this same regard, United relies on the position
taken in Crocker v. Piedmont Aviation, Inc., 741 F.Supp.
241 (D.D.C.1989) (employee that received new employ-
ment with noncovered airline extinguishes first right of
hire), which was reversed by the D.C. Circuit, see
Crocker v. Piedmont Aviation, Inc., 933 F.2d 1024 (D.C.
Cir.1991), and rejected by the Ninth Circuit in Gonzalez
v. Aloha Airlines, 940 F.2d 1812, 1817 (9th Cir.1991).
ii iinet iii
7a
It is the practice of this Court to interpret statutory
language according to its plain meaning. Under the in-
terpretation United offers, a designated employee apply-
ing for renewed employment with various airlines (offer-
ing different salaries and benefits), immediately upon
rejecting the first and perhaps least desirable offer by
one airline, loses his or her first right of hire as to any
other airline. In United’s view, designated employees
have no right to “pick and choose” between available
employment opportunities. We find nothing in the lan-
guage of the statute or the regulations to sanction that
result, and certainly, such a provision could easily have
been written had Congress intended.
On the other hand, the three tynes of situations United
cites can reasonably be grounded on the language of the
Statute. An employee that resigns or quits has not been
involuntarily “furloughed” or “terminated” in the plain
sense of those terms. Likewise, when the furloughed
employee has been recalled by his former employer, the
condition giving rise to the first right of hire—the fur-
lough—has by definition ceased. Finally, even the propo-
sition that a person loses the first right of hire upon
obtaining employment (at least with a covered air car-
rier) finds reasonable support in the language; the whole
object of the first right of hire has been realized—the
employee has been “hired.” There is no similar language
on which to base the rule that a designated employee who
rejects an offer of employment in his or her occupational
specialty loses the first right of hire. Cf. Gonzalez v.
Aloha Airlines, Inc., 940 F.2d 1312, 1317 (9th Cir.1991)
(in rejecting the stronger claim that actual employment
by non-covered airline terminates first right of hire, court
notes that the Act “says nothing of the effect of [plain-
tiff’s] employment with a non-covered airline on his EPP
rights’’).
Further, this construction is bolstered by the related
government assistance provisions of section 43. These
»
|
8a
provisions provide for monthly assistance to eligible, dis-
located airline workers until they obtain other employ-
ment, or until the end of 72 months after the date of
first payment, 49 U.S.C.App. § 1552(e). The duty to
hire provision was adopted in conjunction with the
monthly assistance program in part to reduce the burden
on the federal government purse. McDonald v. Piedmont
Aviation, Inc., 930 F.2d 220, 227 (2d Cir.1991) ; Crocker
v. Piedmont Aviation, Inc., 933 F.2d 1024, 1027 (D.D.C.
Cir.1991) (citing legislative history).' While these
monthly payments may be reduced if a recipient rejects
an offer for “reasonably comparable employment,” 49
U.S.C.App. § 1552 (b) (2), they are not terminated. There-
fore, were we to extinguish the first right of hire upon
a recipient’s rejection of a job, under the statute the
government would be required to continue making pay-
ments, and the first right of hire would not serve to
shorten the duration of the government’s obligations—a
result that unreasonably defeats the purpose of the duty
to hire.
Finally, we cannot say that the appellants’ choice to
take money in connection with the JPA instead of wait-
ing for employment puts them in the same position as
those fellow employees who lost their first right of hire
upon commencing employ with Continental, assuming this
is a correct description of their legal status, see Opinion
Letter at 2-3. Under the JPA, the appellants could ac-
cept money and take their chances in finding new em-
ployment (with a first right of hire that by no means
guarantees future employment), or they could accept the
employment option and receive the right to an eventual
offer of employment with a cut in salary and benefits.
Id. at 2. Neither choice, though, should be viewed in
1Tn fact, the federal government reduced the burden on its purse
by simply refusing to appropriate funds to the public assistance
program. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 681, 107
S.Ct. 1476, 1478, 94 L.Ed.2d 661 (1987).
9a
the first instance as an opportunity to vindicate entitle-
ments bestowed by the Act.? The choice between cash or
a future offer of employment was simply a benefit that
Continental offered to settle the employees claims against
the bankrupt estate, paving the way for its purchase and
rapid utilization of Frontier’s assets. See Id. at 1. The
appellants accepted immediate cash, giving up any rights
they might have had of independently pursuing these
claims against the estate. Certainly, under the Act there
is nothing to suggest that had Frontier simply terminated
these three employees (other than for cause) and paid
them severance benefits or other amounts owed to them
for some other reason, they would not be protected em-
2 We do not find the language in the Opinion Letter controlling
as to employees that accepted cash in lieu of employment. The letter
simply does not address that issue. The reference to employees who
“did sign the waiver and received the benefits of the Agreement,”
as the next sentence explicitly states, refers to those employees who
“accepted a new job with a covered carrier.” Opinion Letter at 2.
Those employees that accepted the employment option but had not
yet received an actual offer to commence employment were still
designated employees until they actually began working for Con-
tinental. Jd. Therefore, even acceptance of the employment option
under the JPA did not automatically terminate an employee's first |
right of hire.
In this regard, ve note that even if our analysis were to turn
on whether or no‘ apyellants rejected an offer for reasonably com-
parable employn rt by a covered airline, the entitlement bestowed
by the JPA’s employment option was not an offer of employment in
the usual sense. Under the terms of the JPA, those choosing the
employment option would “be placed in seniority upon a guaranteed
job offer list which Continental will use to fill future job oppor-
tunities as they become available.” JPA, Appellee’s Appendix at
323. Further, under the JPA a “Frontier employee may be obligated
to accept employment in a city (metropolitan area) other than the
city of his/her last employment at Frontier.” Jd. at 324-325.
Whether the appellants would in fact have received an actual offer
had they chosen the employment option, or whether in fact they
would have remained in Denver are irrelevant. It was clear that
the status of each appellant, as viewed ex ante under the JPA, was
merely that of a “Frontier employee potentially eligible for a job
offer from Continental.” Jd. at 26-27.
ii
10a
ployees with first rights of hire by another covered air-
line. Therefore, for purposes of the act, we cannot equate
the money appellants received in satisfaction of claims
they had against Frontier with new employment by a cov-
ered air carrier, and we cannot hold as a matter of law
that appellants lost their first right of hire under section
43(d).°
III.
Next, we must decide whether the district court cor-
rectly found that a six month statute of limitations ap-
plies to the private right of action under the Act. Three
circuits and a host of district courts have considered this
issue, with differing results. See Haggerty v. USAir,
Inc., 952 F.2d 781 (8d Cir.1992) (applying the six-
month federal statute of limitations found in the NLRB) ;
Gonzalez v. Aloha Airlines, Inc., 940 F.2d 1312 (9th
Cir.1991) (applying state one-year statute of limitations
for actions vindicating federal rights); McDonald v.
Piedmont Aviation, Inc., 930 F.2d 220 (2d Cir.1991)
(applying state three-year statute of limitations for tort
actions); see also, e.g., Crocker v. Piedmont Aviation,
Inc., 696 F.Supp. 685, 690-92 (D.D.C.1988) (applying
the District of Columbia three-year catch-all statute of
limitation for backpay); Punahele v. United Air Lines,
Inc., 743 F.Supp. 758 (D.Colo.1990) (position taken by
district court: six-month statute of limitations applies
whether court adopts Colorado state law or statute of
limitations found in the NLRB).
The question of the appiicable statute of limitations
is not an insignificant matter. Surely, whether a pro-
3 Despite the appellants’ apparent willingness to make an issue of
it, United has not attempted to argue that the waiver itself which
appellants signed in connection with the JPA acted directly to
waive their statutory rights under the Act as to United.-
4Of course inherent in the statute is a sunset provision that
will eventually make the question moot. Protected employees
terminated after October 23, 1988, no longer obtain a first right of
hire. 49 U.S.C.App. § 1552(d) (1).
lla
tected employee’s claim is extinguished in six months or
six years has a great practical effect on the nature of the
entitlement and hence on the political objectives Congress
sought to obtain. But Congress remains silent on the
issue.®
Limitations on a federal claim of right are grounded
in federal law. DelCostello v. Int’l Brotherhood of Team-
sters, 462 U.S. 151, 159 n. 13, 103 S.Ct. 2281, 2288 n.
13, 76 L.Ed.2d 476 (1983). Taking the law as we find
it, we note that when Congress does not specify a statute
of limitations, the settled practice is to presume that Con-
gress intended the courts to apply the most analogous
state law statute of limitations. Jd.; see also Wilson v.
Garcia, 471 U.S. 261, 266, 105 S.Ct. 1938, 1942, 85 L.Ed.
2d 254 (1985). This is a fiction, a default rule; it seems
rather unlikely that in fact Congress intended that in
: Hawaii a valid claim is extinguished after one year, while
Massachusetts employees get the benefit of a three-year
Statute. However, the presumption does give weight to
certain state interests. Statutes of limitations promote
policies of repose, providing for a period after which
“even wrongdoers are entitled to assume that their sins
may be forgotten.” Jd. at 271, 105 S.Ct. at 1944. “By
adopting the statute governing an analogous cause of
action under state law, federal law incorporates the
State’s judgment on the proper balance between the poli-
cies of repose and the substantive policies of enforce-
ment embodied in the state cause of.action.” Jd.
®* The EPP in its current form leaves much of the legislative task
undone. Section 43(d) pretends only to create a protected em-
ployee’s “first right of hire” and the airlines’ corresponding “duty
to hire such a person before they hire any other person.” 49 U.S.C.
App. § 1552(d)(1). The courts have been left to write the rest of
the statute, deciding whether Congress “intended” to create a private
right of action, the nature of the appropriate remedy, the extent
of damages (if that is the appropriate remedy), and the applicable
statute of limitations.
iii
12a
This presumption is not unbending, however. “TW |hen
a rule from elsewhere in federal law clearly provides a
closer analogy than available state statutes, and when
the federal policies at stake and the practicalities of liti-
gation make that rule a significantly more appropriate
vehicle for interstitial lawmaking.” DelCostello, 462 U.S.
at 171-72, 103 S.Ct. at 2294.
Nevertheless, if we are “to take seriously [the Supreme
Court’s] admonition that analogous state statutes of limi-
tations are to be used unless they frustrate or signifi-
cantly interfere with federal policies,” Reed v. United
Transportation Union, 488 U.S. 319, 327, 109 S.Ct. 621,
627, 102 L.Ed.2d 665 (1989), we must apply a Colorado
state statute of limitations in this case. In reaching this
decision, we join the Second and Ninth Circuits. See
McDonald v. Piedmont Aviation, Inc., 930 F.2d at 225
(“no reason to vary from the longstanding practice of
adopting a state statute of limitations in the face of
Congressional silence”) ; Gonzalez v. Aloha Airlines, Inc.,
940 F.2d at 1315 (9th Cir.1991) (“Application of a state
statute of limitations therefore would not, as in DelCos-
tello, undermine federal policies.”). And we must reject
the position recently taken by the Third Circuit in Hag-
gerty v. USAir, Inc., 952 F.2d 781 (3d Cir.1992).
The Third Circuit’s decision to apply a federal instead
of a state statute of limitations was based on the fact
that an employee can attempt to exercise his right of first
hire with several employers in several different states and
that airlines could therefore be subject to a different limi-
tations period in each of the states in which they op-
erate. Citing Agency Holding Corp., the court deter-
mined that “if the carriers were subject to varying state
limitations periods they could not ‘“‘calculate their con-
tingent liabilities, not knowing with confidence when their
delicts lie in repose.”’” Haggerty, at 786. “Moreover,”
concluded the court, “it is not easy to find a state limita-
tions period that is an appropriate analogy.” Jd. at 786.
13a
We believe this analysis is mistaken. If this rationale
were adopted there would hardly be occasion to adopt the
state statute of limitations. Every time a state-rule is
adopted instead of a federal rule, an entity operating in
various states will likely be subject to varying state stat-
utes of limitations. Further, the single claim that may
arise under the EPP is very dissimilar from the un-
limited variety of claims arising under RICO, which the
Court confronted in Agency Holding Corp., 483 U.S. at
149-50, 107 S.Ct. at 2764. Once the issue has been set-
tled in a state as to which limitation applies, the matter
is settled as to any future case arising under the EPP.
To the contrary, under RICO, with its concepts of “en-
terprise” and “pattern of racketeering activity” and the
various types of predicate offenses, which might have oc-
curred in different states, any given case may create con-
fusion over the proper limitations period. See 483 U.S.
at 149-50, 107 S.Ct. at 2764.°
Further, the court’s inability to find an “appropriate
analogy” does not change our obligation to adopt a state
statute. In DelCostello, the Court stated:
®The court also found that all EPP claims should be treated
uniformly “because in fact they are uniform.” Haggerty, at 786.
That decision misunderstands the nature of the inquiry. “Where a
federal cause of action tends in practice to ‘encompass numerous
and diverse topics and subtopics,’ such that a single state limitations
period may not be consistently applied within a jurisdiction, we
have concluded that the federal interests in predictability and ju-
dicial economy counsel the adoption of one source, or class of sources,
for borrowing purposes. This conclusion ultimately mav result in
the selection of a single federal provision, or of a single variety of
state actions.” Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbert-
son, U.S. — , 111 S.Ct. 2773, 2779, 115 L.Ed.2d 321 (1991)
(emphasis added) (citations omitted). Uniike a RICO claim or a
1983 claim, only one type of claim will arise under the EPP. In a
given jurisdiction, a single type of statute of limitations can be con-
sistently applied. Consequently, in this case, as in the ordinary
case, the federal court must find in each state the statute that is
“most analogous,” which may vary from state to state.
a
14a
We stress that our holding today should not be
taken as a departure from prior practice in borrow-
ing limitations periods for federal causes of action,
in labor law or elsewhere. We do not mean to sug-
gest that federal courts should eschew use of state
limitations periods anytime state law fails to provide
a perfect analogy. On the contrary, as the courts
have often discovered, there is not always an obvious
state-law choice for application to a given federal
cause of action; yet resort to state law remains the
norm for borrowing of limitations periods.
462 U.S. at 171, 103 S.Ct. at 2294 (citation omitted).
The question then is which Colorado statute to apply.
We hold that the proper statute to apply is Colo.Rev.
Stat. § 13-80-102(1) (g), which applies a two-year limi-
tation to “All actions upon liability created by a federal
statute where no period of limitation is provided in said
statute.” See Gonzalez, 940 F.2d at 1316 (“Section...
therefore provides the most closely analogous state statute
of limitations since it expressly applies to claims created
by federal law.”’).
Arguing against this result, United asserts the same
argument that has been applied to residual state “catch-
all” provisions, namely that it is “unlikely that Congress
would not have intended such a statute of limitations to
apply.” Agency Holding Corp., 483 U.S. at 153, 107
S.Ct. at 2765. This is a fiction upon a fiction. Not only
is the Colorado statute not a residual “catch-all,” but
there is no reason to think that Congress would be less
enthusiastic about the application of this statute than it
would be over a different, yet analogous three-year stat-
ute applied in Massachusetts or a different, yet analogous
one-year statute applied in some other state.’ Nor is the
7 Cf. DeiCostello, 462 U.S. at 169 n. 21, 103 S.Ct. at 2293 n. 21
(In response to Justice Steven’s remark that there was no evidence
that Congress intended analogous federal statute to be used in
present context, Court responds: “With all respect, we think that
15a
EPP so unique that another analogous statute cannot
be found in states without a similar provision. See id.
(suit generis nature of RICO makes it inappropriate to
apply catch-all, because in states without catch-all there
would be no analogous state statute).
To the extent adoption of the most analogous state
statute of limitations is designed to respect the state’s
decision as to when citizens may repose—as long as that
decision does not frustrate federal policy—then clearly
this is the statute that best serves that purpose. Unlike
the ordinary case where neither Congress nor the state
legislature, whose statute is adopted, in. fact intended
that the chosen statute be used, see note 7, supra, here
at least Colorado has specifically weighed the interests of
its citizens who may assert -federal rights with the in-
terests that its citizens have in obtaining repose. Given
the length of the period, there is no reason to believe
that Colorado intended to frustrate or discriminate
against a citizen’s vindication of federal rights. There-
fore, in Congress’ silence, we will defer to that judgment.
Further, to the extent the obligation of applying state
law does not spring from the statute as a matter of fed-
eral law but instead recognizes the operation of state
law ex proprio vigore, see Agency Holding Corp. v.
Malley-Duff & Assocs., 483 US. 143, 157-65, 107 S.Ct.
2759, 2767-72, 97 L.Ed.2d 121 (1987) (Scalia, J., con-
curring) (state statutes of limitation apply of their own
force, unless pre-empted by federal law), or finds its in-
spiration in the Rules of Decision Act, 28 U.S.C. § 1652,
this observation, while undoubtedly correct, is beside the point.
The same could be said with equal or greater accuracy about the
intent of the New York and Maryland Legislatures when they en-
acted their respective arbitration or malpractice statutes of limi-
tations. In either situation we are applying a statute of limitations
to a different cause of action, not because the legislature enacting
that limitations provision intended that it apply elsewhere, but be-
cause it is the most suitable source for borrowing to fill a gap in
federal law.” (citation omitted).
|
16a
see DelCostello, 462 U.S. at 172-74, 108 S.Ct. at 2295
(Stevens, J., dissenting) (Rules of Decision Act requires
application of state statute of limitations) ; Lampf, Pleva,
Lipkind, Prupis & Petigrow v. Gilbertson, —— USS.
, 111 S.Ct. 2773, 2778, 115 L.Ed.2d 321 (1991)
(practice of applying state statutes of limitations “‘de-
rived from the Rules of Decision Act”), then again this
statute would be the proper choice.
Accordingly, for the reasons stated above, and the judg-
ment of the district court is REVERSED.
a
17a
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 88-S-1997
CHARLES Bownry, et al.,
Plaintiffs,
VS.
UNITED AIR LINEs, INC.,
Defendant.
MEMORANDUM AND ORDER
{Filed Jan. 18, 1991]
THIS MATTER came before the Court for hearing on
numerous motions on December 21, 1990. The Court notes
that the claims of Plaintiffs Crist Ellis and Norma Wong-
Larkin were dismissed from the above-captioned case and
consolidated into Case No. 90-S-1085 by order of this
Court in Case No. 90-S-1085, dated January 7, 1991.
Therefore, Ellis and Wong-Larkin are no longer Plaintiffs
in this case and the following motions were considered
without reference to them. After reviewing the motions,
briefs, supplements, exhibits, affidavits, deposition ex-
cerpts, oral argument of counsel, the applicable law. and
being fully advised in the premises, the Court makes the
following Findings, Conclusion, and Order.
|
18a
I. Defendant’s Motion for Partial Summary Judgment
Against Plaintiffs (Withdrawn as Against Bowdry),
Filed June 7, 1990.
Citing Crocker v. Piedmont Aviation, Inc., 741 F.Supp.
241 (D.D.C. 1989) and Department of Labor Opinion
Letter No. 244B, Defendant argues: (1) that the four
plaintiffs who signed the waiver required by the JPA
and went to work for Continental lost their first right of
hire on the respective dates that they were hired by
Continental and (2) that the Plaintiffs who settled for
cash and passes instead of signing the waiver required by
the JPA lost their first right of hire on October 1, 1986.
Therefore, United argues, it cannot be liable for violating
these Plaintiffs’ first-hire rights under the Airline De-
regulation Act Employee Protection Program, 49 U.S.C.
§ 1552(d) (1).
Plaintiffs respond that the Department of Labor Opin-
ion Letter cannot be considered precedent and that there
are issues of fact concerning whether the jobs at Conti-
nental were in the occupational specialties of the four
Plaintiffs hired by Continenta!, whether there were avail-
able jobs at Continental in the occupational specialties of
the other five Plaintiffs, and whether United hired any
non-designated employees during the time that Plaintiffs’
job applications to United were active. Plaintiffs and
_ Defendant argue extensively in their supplemental filings
about whether the Plaintiffs would have been hired by
Continental in their occupational specialties.
It is undisputed that Plaintiffs were all protected em-
ployees. 49 U.S.C. $1552(d)(1) provides in pertinent
part:
(d) Duty to hire protected employees. (1) Each
person who is a protected employee of an air carrier
which is subject to regulation by the Civil Aero-
nautics Board who is furloughed or is otherwise
terminated by such an air carrier (other than for
19a
cause) prior to the last day of the 10-year period
beginning on the date of the enactment cf this section
lenacted Oct. 24, 1978] shall have first right of hire,
regardless of age, in his occupational specialty, by
any other air carrier hiring additional employees
which held a certificate issued under Section 401 of
the Federal Aviation Act of 1958 [49 U.S.C.S. § 1371]
prior to such date of enactment. Each such air car-
rier hiring additional employees shall have the duty
to hire such a person before they hire any other
person, except that such air carrier may recall any
of its own furloughed employees before hiring such a
person... .
As to Plaintiffs Burger, Mach, Mullins, and Rankin,
this Court agrees with the reasoning in Crocker, 741 F.
Supp. at 248-45. If a designated employee is hired by a
covered airline, then that employee no longer has first-
hire rights with other covered carriers. The Court also
agrees with the reasoning in the Department of Labor
Opinion Letter 244B, although the Court does not accept
it as precedent, that employees who signed the waiver and
received the benefits of the JPA are no longer designated
employees. Because these four Plaintiffs signed the waiver
and were hired by Continental, they no longer had first-
hire rights that United was required to honor. The goal
of the employee protection program was to ensure that the
costs of deregulation did not fall too heavily, in the form
of furloughs and termination, on protected employees. It
does not follow that such employees be given first-hire
protection forever. The signing of the waiver and result-
ant employment with Continental pursuant to the terms
of the JPA ended these four Plaintiffs’ designated status
under the ADA’s Employee Protection Program.
29 C.F.R. Part 220, the Airline Employees Protection
Program, provides in pertinent part:
20a
Section 220.01 Definitions
(f) “Designated Employee” means a protected em-
ployee who meets the eligibility requirement set forth
in Section 220.10.
Section 220.10 Eligibility Requirements.
(a) To qualify as a designated employee eligible for
rights under this part 220, the applicant must be a
protected employee who is involuntarily placed on
furlough or is terminated by a covered air carrier
during the eligibility period.
(b) A protected employee shall not be deemed to be
furloughed or terminated if such employee:
(6) resigned or voluntarily quit for any reason.
As to Plaintiffs Hart, Hartzer, Kennon, and Vannice,
the Court finds that they were not designated employees
entitled to protection under the ADA’s Employee Protec-
* tion Program. These five Plaintiffs signed the Election
of Severance Benefits and Waiver of Claims and sub-
mitted the waivers to Continental. The definition of a
waiver is “the Intentional or voluntary relinquishment of
a known right”. Black’s Law Dictionary, 1417 (5th Ed.
1979). By signing the Election of Severance Benefits and
Waiver of Claims, these Plaintiffs “resigned or volun-
tarily quit” pursuant to 29 C.F.R. § 220.10(b) (6), shall
not be deemed to be furloughed or termination, and do not
qualify as designated employees entitled to protection by
the ADA.
As a matter of law, Plaintiffs. Burger, Mach, Mullins,
and Rankin lost their first-hire rights on the dates they
were hired by Continental. Any hiring done by United
after those dates could not have violated these four Plain-
tiffs’ rights under the ADA. United cannot be liable to
Burger after November 18, 1986, te Mach after November
|
2la
2, 1986, to Mullins after October 31, 1986, or to Rankin
after November 2, 1986.
As a matter of law, Plaintiffs Hart, Hartzer, Howard,
Kennon, and Vannice lost their first-hire rights on the
dates they signed the Election of Severance Benefits and
Waiver of Claims, thus resigning or voluntarily quitting.
Any hiring done by United after those dates could not
have violated these five Plaintiffs’ rights under the ADA.
United cannot be liable to Hart after October 8, 1986, to
Hartzer after October 10, 1986, to Howard after October
14, 1986, to Kennon after October 10, 1986, or to Vannice
after October 12, 1986.
Accordingly, United’s Motion for Partial Summary
Judgment is GRANTED as to Plaintiff Burger, Hart,
Hartzer, Howard, Kennon, Mach, Mullins, Rankin, and
Vannice.
II. Defendant’s Motion for Summary Judgment Against
Plaintiffs Vannice, Hart, and Howard (withdrawn as
against Bowdry), filed June 7, 1990.
The Court determined in Defendant’s Motion for Partial
Summary Judgment above that Plaintiffs Hart, Howard,
and Vannice lost their designated status on October 8,
1986, and October 12, respectively. The Court’s determi-
nation that United shall not be liable to these three Plain-
tiffs after those respective dates is dispositive of this
motion as well.
III. Defendants’ Motion for Summary Judgment Against
Mach, Mullins, Burger, Bowdry, Vannice, Kennon,
Hartzer, Russell Estill, and Ralph Estill, filed June
7, 1990.
Defendant argues that these nine Plaintiffs are not en-
titled to first-hire rights because they failed to exercise
those rights by not notifying United of their alleged
designated status. Plaintiffs argue that notification is not
required by the ADA or the regulations.
22a
29 C.F.R. § 220.27 provides for a notice of rights as
follows:
Section 220.27 Notice of Rights.
(a) Not later than the date of separation from
employment, a covered air carrier which fur-
loughs or terminates a protected employee during
the eligibility period, unless such furlough is
limited to a specific period of less than 90 calen-
dar days, shall furnish such protected employee
with notice of rights in the form of a letter or
other written documentation that such employee
is a designated employee and thereby is entitled
to exercise a first-right-of-hire. ...
The responsibilities of designated employees under the
Airline Employee Protection Program regulations are set
forth in pertinent part at Section 220.30, Designated Em-
ployees’ Responsibilities :
It is the responsibility of each designated employee to:
(a) Make application to any covered air carrier for
whom the designated employee desires to work in the
time and manner required by such carrier.
(b) To insure that an application previously sub-
mitted to a covered air carrier which currently lists
a vacancy is in an active status so as to be considered
for such vacancy ;
(c) To provide a copy, if requested, of the notice of
rights to a potential employing air carrier; and
(d) To retain the original notice of rights for future
use. (emphasis added)
On a motion for summary judgment, the Court cannot
conclude that these nine Plaintiffs failed to properly exer-
cise their first-hire rights. As the Court reads the regula-
tions, a designated employee must provide a copy of the
notice of rights to a potential employing air carrier, if
requested. There are issues of fact remaining whether
23a
United requested such information from these Plaintiffs,
While the Court found Long vs. TWA, 913 F.2d 1262
(7th Cir. 1990) very interesting, it does not find Long
to be dispositive of the issue presented by this motion.
Accordingly, Defendant’s Motion for Summary Judgment
~ against Mach, Mullins, Burger, Bowdry, Vannice, Ken-
non, Hartzer, Ralph Estill, and Russell Estill is DENIED.
IV. Defendant’s Motion for Summary Judgment Re:
Expiration of the Statute of Limitations Under
the ADA, filed September 21, 1990.
Defendant argues that a uniform federal six-month
statute of limitations bars the ADA claims of Bowdry,
Vannice, Russell] Estill, and Ralph Estill. United argues
that the six-month statute of limitations from the Na-
tional Labor Relations Act, 29 U.S.C. § 160(b) or, in
the alternative, a six-month statute of limitations drawn
from the Colorado Labor Peace Act, Colo. Rev. Stat.
§ 8-3-110(16), or the Colorado Employment Practice Pro-
visions, Colo, Rev. Stat. § 24-34-403, should apply. Plain-
tiffs argue that the Court should apply a two-year stat-
ute of limitations from either: (1) the Veterans Re-
employment Rights Act, 38 U.S.C. § 2022, (2) the Civil
Rights Act, 42 U.S.c. $1981, (3) the Civil Rights Act,
42 U.S.C. § 1983, or (4) the Age Discrimination in Em-
ployment Act, 29 U.S.C. § 626 or, in the alternative, a
two-year statute of limitations drawn from the state law
“eatchall provisions”, Colo. Rey. Stat. § 13-80-102(g).
Plaintiffs and Defendant agree that whatever statute of
limitations applies begins to run when the Plaintiffs knew
or should have known that their rights under the ADA
were being violated. See Lucas y. Mountain States Tel.
& Tel., 909 F.2d 419, 420-21 (10th Cir. 1990).
Because Congress did not include a Statute of limita-
tions provision in the ADA, the Court must look to other
sources to “borrow” the most suitable Statute or other
rule for a limitations period on ADA actions. Agency
24a
Holding Corp. v. Malley-Duff & Assoc., 483 U.S. 143,
146-47 (1987); Del Costello v. International Broth. of
Teamsters, 462 U.S. 151, 158 (1983). Courts have gen-
erally concluded that Congress intended the courts to
apply the most closely analogous statute of limitations
under state law. Reed v. United Transp. Union, 488
U.S. 319, 109 S.Ct. 621 (1989). Courts may decline to
borrow a state statutes of limitations only when
“a rule from elsewhere in federal law clearly pro-
vides a closer analogy than available state statutes,
and when the federal policies at stake and the prac-
ticalities of litigation make that rule a significantly
more appropriate vehicle for interstitial lawmak-
ing”. Del Costello [462 U.S. 151, 172 (1983) ].
Reed, 488 U.S. at ——, 109 S.Ct. at 625.
At least one court has applied the six-month statute
of limitations found in the NLRA, 29 U.S.C. § 160(b),
to claims under the employee protection provisions of the
ADA. See Bigelow v. Hawaiian Air Lines, Inc., 696
F.Supp. 1356 (D. Haw. 1987); Gonzalez v. Aloha Air
Lines, Inc., 669 F.Supp. 1023 (D. Haw. 1987). At least
two other district courts have refused to apply § 160(b)
and have looked to state statutes instead. Crocker v. Pied-
ment Aviation, Inc., 696 F.Supp. 685, 689-92 (D.D.C.
1988) ; McDonald v. Piedmont Aviation, Inc., 695 F.Supp.
133, 135-38 (S.D.N.Y. 1988).
Because two Colorado statutes most analogous to the
ADA contain the same time limitation as § 160(b), this
Court need determine neither whether Congress intended
federal or state time limitations to apply to ADA claims
nor which federal statute is most analogous to the ADA.
Both 29 U.S.C. § 160(b) and Colo. Rev. Stat. §§ 8-3-110
(16) and 24-34-403 provide for a six-month limitations
period.
Assuming that Colorado law is the appropriate source
for the limitation period on the Plaintiffs’ claims, the
25a
Court must determine which Statutory provision is most
analogous to the ADA. The only state statute urged by
the Plaintiffs is the “catchall provision” of Colo. Rev.
Stat. § 13-80-102(g). The Court’s task is to borrow the
most suitable statute. Del Costello, 462 U.S. at 158. The
catchall provisions is not most analogous to the ADA and
is thus inapplicable. See Agency Holding Corp., 483 U.S.
at 152-53; Wilson v. Garcia, 471 U.S. 261, 277 (1985).
Therefore, the Court finds that the Colorado Labor and
Employment statutes, Colo. Rev. Stat. §§ 8-3-110(6) and
24-34-403, are most analogous to the Plaintiffs’ ADA
claims, Accordingly, the Court concludes that the statute
of limitations period for commencing the Plaintiffs’ claims
is six months.
The Court must next determine whether there is a
genuine issue of material fact whether Bowdry, Vannice,
and the Estills knew or should have known of the ele
ments of their ADA claims more than six months before
filing the action. The Court determines that genuine
issues of fact remain regarding when these Plaintiffs
knew or should have known of their ADA claims. Ac-
cordingly, the Defendant’s Motion for Summary Judg-
ment Re: Expiration of the Statute of Limitations under
the ADA is DENIED because issues of fact remain as
to when the Plaintiffs knew or Should have known of
their ADA claims.
V. Defendant’s Motion for Summary Judgment
Against Plaintiff Bowdry, filed March 13, 1990.
Because a recall would extinguish Bowdry’s first-hire
rights and he cannot remember whether he was recalled
by Braniff, United argues that Bowdry cannont meet his
burden of establishing that he was not recalled and sum-
mary judgment should be entered against him: In addi-
tion, United contends that Bowdry’s damages are limited
to the difference between the income he would have earned
as a regular part-time ramn service employee from Janu-
26a
ary 27, 1987 through February 10, 1988 and the income
he earned during that time period as a regular part-time
cabin serviceman. The Court, however, agrees with
Bowdry’s argument that genuine issues of fact remain
regarding any recall of Bowdry by Braniff. Issues of
fact also remain regarding Bowdry’s damages, such as
whether any non-designated applicants were hired into
his occupational specialty before he was. Accordingly,
the Defendant’s Motion for Summary Judgment against
Plaintiff Bowdry is DENIED.
VI. Defendant’s Motion for Summary Judgment
Against Plaintiff Hart, filed August-20, 1990.
United argues that Hart, in his employment applica-
tion to United, indicated that he would accept only full-
time employment. During the one-year period that Hart’s
application was kept on file at United, United did not
hire any outside applicants into regular full-time cus-
tomer service representative positions nor convert any
temporary customer service positions to full-time status.
United argues that, as a matter of law, Hart cannot
establish that United hired anyone in violation of his
rights under the ADA. Hart argues that there are issues
of fact regarding whether United ever hires directly into
full-time positions and whether United informed Hart
of that policy.
The Court finds that factual issues remain concerning
United’s hiring policies for full-time positions. Accord-
ingly, the Defendant’s Motion for Summary Judgment
against Plaintiff Hart is DENIED.
VII. Defendant’s Motion for Partial Summary Judg-
ment Against Russell Estiill, filed March 18, 1990.
United argues that both part-time and full-time posi-
tions are covered by 29 C.F.R. § 220.23(b) and that as of
January 18, 1987, Russell Estill was hired into a job
that complied with United’s obligations under the Air-
—————————————
———,
27a
line Employee Protection Program. Therefore, Russell
Estill has no cognizable claim for damages and partial
summary judgment should enter in favor of United find-
ing that Estill’s damages are zero.
Russell Estill argues that United’s obligations to a
designated employee do not cease completely when the
employee is hired into a part-time position. Estill also
argues that his damages depend upon whether any non-
designated employee was hired before him or hired into
a full-time position ahead of him once he had been hired.
Estill introduces an affidavit indicating that at least one
non-designated employee was so hired.
The Court finds that there are genuine issues of fact
remaining concerning Russell Estill’s damages claim.
Accordingly, Defendant’s Motion for Partial Summary
Judgment against Russell Estill is DENIED.
VIII. Defendant’s Motion for Partial Summary Judg-
ment against Ralph Estill, filed June 25, 1990.
United argues that both part-time and full-time posi-
tions are covered by 29 C.F.R. § 220.23(b) and that
United complied with all of its obligations under the Air-
line Employee Protection Program as of January 18,
1987. Therefore, Ralph Estill suffered no damages and
partial summary judgment should enter in favor of United
finding that Estill’s damages are zero. Ralph Estill in-
dicates that he has evidence of job openings for which
he should have been hired prior to January of 1987.
The Court finds that there are genuine issues of fact
remaining concerning Ralph Estill’s damages claim. Ac-
cordingly, Defendant’s Motion for Partial Summary
Judgment against Ralph Estill is DENIED.
IX. Plaintiffs’ Motion to Bifurcate Proceedings, filed
March 22, 1990.
The Court hereby incorporates its ora] Findings, Con-
clusions, and Order made in open court on December 21.
28a
1990, whereby Plaintiffs’ Motion to Bifurcate Proceed-
ings was GRANTED. An initial trial shall be set on all
liability issues, to be immediately followed by individual
hearings as to each prevailing Plaintiff's damages.
X. Plaintiffs’ Motion to Supplement Complaint to
Seek Additional Relief filed August 15, 1990.
The Court hereby incorporates its oral Findings, Con-
clusions, and Order made in open court on December 21,
1990, whereby Plaintiffs’ Motion to Supplement Com-
plaint to Seek Additional Relief was DENIED.
XI. Defendant’s Motion to Strike Jury Demand, filed
July 20, 1990.
Defendant moves to strike the Plaintiffs’ demand for a
jury trial on the grounds that there is no express right
to a jury trial under the ADA and no right to a jury
trial under the Seventh Amendment because the relief
sought by the Plaintiffs and provided by the ADA is
purely equitable in nature. Plaintiffs argue that the ADA
is most akin to the ADEA, where claimants are entitled
to a jury trial.
The Seventh Amendment provides:
“In suits at common law, where the value in contro-
versy shall exceed twenty dollars, the right of trial
by jury shall be preserved... .”
Courts have consistently interpreted the phrase “suits at
common law” to mean suits in which legal rights were to
be determined, as opposed to those where equitable rights
alone were recognized and equitable remedies were ad-
ministered. Granfinanciera, S.A. v. Nordberg, US.
, 109 S.Ct. 2782 (1989). The Seventh Amendment
question depends upon the nature of the issue rather
than on the character of the overall action. Ross v. Bern-
hard, 396 U.S. 531, 538 (1970). To determine whether
a particular action will resolve legal (as opposed to equi-
ee
29a
table) rights, such that the plaintiff is entitled to a jury
trial, courts must examine both the nature of the issues
involved and, more importantly, the remedies sought.
Local No. 391 v. Terry, —— USS. , 110 8.Ct. 1839
(1990) (Justice Marshall with the Chief Justice and two
Justices joining and two Justices concurring in judg-
ment). Characterizing the relief sought is more impor- .
tant than finding a precisely analogous common law cause
of action in determining whether the Seventh Amendment
guarantees a jury trial. Tull v. U.S., 481 U.S. 412, 417-
18 (1987). If the claim is essentially equitable rather
than legal, there is no constitutional right to a trial by
jury. Granfinanciera, 109 S.Ct. at 1500.
The Court agrees with United that the ADA does not
provide an express right to a jury trial and that the
relief sought by the Plaintiffs (injunctive and declara-
tory relief, instatement into their rightful positions, sen-
lority adjustments and compensation, back pay, lost
benefits) is equitable in nature. The Court cannot go so
far as to say that any award of monetary relief must
necessarily be legal relief. Curtis v. Loether, 415 U.S.
189, 196 (1974). The presence of monetary damages in
this action does not make it more analogous to a legal
action to an equitable action. Local No. 391 v. Terry,
—- US. , 110 S.Ct. at 1359 (Kennedy, J., O’Con-
nor, J., Scalia, J., dissenting). Plaintiffs are not entitled
to a jury trial. Defendant’s Motion to Strike Jury De-
mand is GRANTED.
DATED this 18th day of January, 1991.
By THE Court:
‘8/ Daniel B. Sparr
Judge
United States District Court
ite eeeeamelle
30a
APPENDIX C
STATUTES
49 U.S.C. app. § 1552 (1988). Employee protection pro-
gram.
(a) General rule
(1) The Secretary of Labor shall, subject to such
amounts as are provided in appropriation Acts, make
monthly assistance payments, or reimbursement pay-
ments, in amounts computed according to the provisions
of this section, to each individual who the Secretary
finds, upon application, to be an eligible protected em-
ployee. An eligible protected employee shall be a pro-
tected employee who on account of a qualifying disloca-
tion (A) has been deprived of employment, or (B) has
been adversely affected with respect to his compensation.
(2) No employee who is terminated for cause shall re-
ceive any assistance under this section.
(b) Monthly assistance computation
(1) An eligible protected employee shall, subject to
such amounts as are provided in appropriation Acts, re-
ceive a monthly assistance payment, for each month in
which he is an eligible protected employee, in an amount
computed by the Secretary. The Secretary, after con-
sultation with the Secretary of Transportation, shall, by
rule, promulgate guidelines to be used by him in deter-
mining the amount of each monthly assistance payment
to be made to a member of each craft and class of pro-
tected employees, and what percentage of salary such
payment shall constitute for each applicable class or craft
of employees. In computing such amounts for any indi-
vidual protected employee, the Secretary shall deduct
from such amounts the full amout of any unemployment
compensation received by the protected employee.
————————e
8la
(2) If an eligible protected employee is offered reason-
ably comparable employment and such employee does not
accept such employment, then such employee’s monthly
assistance payment under this section shall be reduced
to an amount which such employee would have been en-
titled to receive if such employee had accepted such em-
ployment. If the acceptance of such comparable employ-
ment would require relocation, such employee may elect
not to relocate and, in lieu of all other benefits provided
herein, to receive the monthly assistance payments to
which he would be entitled if this paragraph were not in
effect, except that the total number of such payments
Shall be the lesser of three or the number remaining
pursuant to the maximum provided in subsection (e) of
this section.
(c) Assistance for relocation
If an eligible protected employee relocates in order to
obtain other employment, such employee shall, subject
to such amounts as are provided in appropriation Acts,
receive reasonable moving expenses (as determined by
the Secretary) for himself and his immediate family. In
addition, such employee shall, subject to such amounts
as are provided in appropriation Acts, receive reimburse-
ment payments for any loss resulting from selling his
principal place of residence at a price below its fair mar-
ket value (as determined by the Secretary) or any loss
incurred in cancelling such employee’s lease agreement
or contract of purchase relating to his principal place of
residence.
(d) Duty to hire protected employees
(1) Each person who is a protected employee of an
air carrier which is subject to regulation by the Civil
Aeronautics Board who is furloughed or otherwise ter-
minated by such an air carrier (other than for cause)
prior to the last day of the 10-year period beginning on
32a
October 24, 1978, shall have first right of hire, regard-
less of age, in his occupational specialty, by any other
air carrier hiring additional employees which held a cer-
tificate issued under section 1371 of this Appendix prior
to October 24, 1978. Each such air carrier hiring addi-
tional employees shall have a duty to hire such a person
before they hire any other person, except that such air
carrier may recall any of its own furloughed employees
before hiring such a person. Any employee who is fur-
loughed or otherwise terminated (other than for cause),
and who is hired by another air carrier under the pro-
visions of this subsection, shall retain his rights of sen-
iority and right of recall with the air carrier that fur-
loughed or terminated him.
(2) The Secretary shall establish, maintain, and peri-
odically publish a comprehensive list of jobs available
with air carriers certificated under section 1371 of this
Appendix. Such list shall include that information and
detail, such as job descriptions and required skills, the
Secretary deems relevant and necessary. In addition to
publishing the list, the Secretary shall make every effort
to assist an eligible protected employe in finding other
employment. Any individual receiving monthly assist-
ance payments, moving expenses, or reimbursement pay-
ments under this section shall, as a condition to receiv-
ing such expenses or payments, cooperate fully with the
Secretary in seeking other employment. In order to carry
out his responsibilities under this subsection, the Secre-
tary may require each such air carrier to file with the
Secretary the reports, data, and other information neces-
sary to fulfill his duties under this subsection.
(3) In addition to making monthly assistance or re-
imbursement payments under this section, the Secretary
shall encourage negotiations between air carriers and
representatives of eligible protected employees with re-
spect to rehiring practices and seniority.
33a
(e) Period of monthly assistance payments
(1) Monthly assistance payments computed under sub-
section (b) of this section for a protected emplovee who
has been deprived of employment shall be made each
month until the receipient obtains other employment, or
until the end of the 72 months occurring immediately
after the month such payments were first made to such
recipient, whichever first occurs.
(2) Monthly assistance payments computed under sub-
section (b) of this section for a protected employee who
has been adversely affected relating to his compensation
shall be paid for no longer than 72 months, so long as
the total number of monthly assistance payments made
under this section for any reason do not exceed 72.
(f) Rules and regulations
(1) The Secretary may issue. amend, and repeal such
rules and regulations as may be necessary for the ad-
ministration of this section.
(2) The rule containing the guidelines which is re-
quired to be promulgated pursuant to subsection (b) of
this section and any other rules or regulations which
the Secretary deems necessary to carry out this section
shall be promulgated within six months after October 24,
1978,
(3) The Secretary shall not issue any rule or regula-
tion as a final rule or regulation under this section until
30 legislative days after it has been submitted to the
Committee on Commerce, Science, and Transportation of
the Senate and the Committee on Publie Works and
Transportation of the House of Representatives, Any
rule or regulation issued by the Secretary under this
section as a final rule or regulation shill be submitted to
the Congress and shall become effective 60 legislative
days after the date of such submission, unless during
that 60-day period either House adopts a resolution stat-
34a
ing that that House disapproves such rules or regula-
tions, except that such rules or regulations may become
effective on the date, during such 60-day period, that a
resolution has been adopted by both Houses stating that
the Congress approves of them.
(4) For purposes of this subsection, the term “legisla-
tive day” means a calendar day on which both Houses of
Congress are in session.
(g) Airline employees protective account
All payments under this section shall be made by the
Secretary from a separate account maintained in the
Treasury of the United States to be known as the Air-
line Employees Protective Account. There are authorized
to be appropriated to such account annually, beginning
with the fiscal year ending September 30, 1979, such
sums as are necessary to carry out the purposes of this
section, including amounts necessary for the administra-
tive expenses of the Secretary related to carrying out
the provisions of this section.
(h) Definitions
For the purposes of this section—
(1) The term “protected employee” means a per-
son who, on October 24, 1978, has been employed for
at least 4 years by an air carrier holding a certifi-
cate issued under section 1371 of this Appendix.
Such term shail not includé any members of the
~ board of directors or officers of a corporation.
(2) The term “qualifying dislocation” means a
bankruptcy or major contraction of an air carrier
holding a certificate under section 1371 of this Ap-
pendix, occurring during the first 10 complete cal-
endar years occurring after October 24, 1978, the
major cause of which is the change in regulatory
structure provided by the Airline Deregulation Act
35a
of 1978, as determined by the Civil Aeronautics
Board.
(3) The term “Secretary” means the Secretary of
Labor.
(4) The term “major contraction” means a reduc-
tion by at least 71% percent of the total number of
full-time employees of an air carrier within a 12-
month period. Any particular reduction of less than
714 percent may be found by the Board to be part
of a major contraction of an air carrier if the
Board determines that other reductions are likely to
occur such that within a 12-month period in which
such particular reduction occurs’ the total reduction
will exceed 71, percent. In computing a 714-percent
reduction under this paragraph, the Board shall not
include employees who are deprived of employment
because of a strike or who are terminated for cause.
(i) Transfer of authority of Board
The authority of the Board under this section is trans-
ferred to the Department_of Transportation on January
1, 1985.
(j) Termination
The provisions of this section shall terminate on the
last day the Secretary is required to make a payment
under this section. °
(Pub. L. 95-504, § 43, Oct. 24, 1978, 92 Stat. 1750.)
REFERENCES IN TEXT
The Airline Deregulation Act of 1978, referred to in
subsee. (h}(2), is Pub. L. 95-504, Oct. 24, 1978, ©?
Stat. 1705, as amended. For complete classification of
this Act to the Code, see Short Title of 1978 Amendment
note set out under section 1301 of this Appendix and
Tables.
36a
CODIFICATION
Section was enacted as part of the Airline Deregula-
tion Act of 1978, and not as part of the Federal Avia-
tion Act of 1958 which comprises this chapter.
TRANSFER OF FUNCTIONS
All functions, powers, and duties of the Civil Aero-
nautics Board were terminated or transferred by sec-
tion 1551 of this Appendix, effective in part on Dec. 31,
1981, in part on Jan. 1, 1988, and in part on Jan. 1,
1985.
For transfer of certain enforcement functions of the
Secretary or other official of the Department of Trans-
portation relating to compliance with this chapter and
the authorizations and regulations issued thereunder to
the Federal Inspector, Office of Federal Inspector of the
Alaska Natural Gas Transportation System, see Trans-
fer of Functions note set out under section 1301 of this
Appendix.
29 U.S.C. § 158(a)(3) (1988). National Laber Relations
Act sf
$158. Unfair labor practices
(a) It shall be an unfair labor practice for an em-
ployer-—
.(3) by discrimination in regard to hire or tenure of
employment or any term or condition of employment to
encourage or discourage membership in any labor organi-
zation: Provided, That nothing in this subchapter, or in
any other statute of the United States, shall preclude an
employer from making an agreement with a labor organi-
zation (not established, maintained, or assisted by any
action defined in this subsection as an unfair labor prac-
tice) to require as a condition of employment membership
therein on or after the thirtieth day following the be-
ginning of such employment or the effective date of such
agreement, whichever is the later, (i) if such labor
organization is the representative of the employees as
37a
provided in section 159(a) of this title, in the appropriate
collective-bargaining unit covered by such agreement when
made, and (ii) unless following an election held as pro-
vided in section 159(e) of this title within one year
preceding the effective date of such agreement, the Board
shall have certified that at least a majority of the em-
ployees eligible to vote in such election have voted to
rescind the authority of such labor organization to make
such an agreement: Provided further, That no employer
shall justify any discrimination against an employee for
nonmembership in a labor organization (A) if he has
reasonable grounds for believing that such membership
was not available to the employee on the same terms and
conditions generally applicable to other members, or (B)
if he has reasonable grounds for believing that member-
ship was denied or terminated for reasons other than the
failure of the employee to tender the periodic dues and
the initiation fees uniformly required as a condition of
acquiring or retaining membership; . . .
29 U.S.C. § 160 (1988). National Labor Relations Act
§ 160. Prevention of unfair labor practices—Powers of
Board generally
Complaint and notice of hearing; answer: court
rules of evidence applicable
(b) Whenever it is charged that any person has en-
gaged in or is engaging in any such unfair labor prac-
tice, the Board, or any agent or agency designated by the
Board for such purposes, shall have power to issue and
cause to be served upon such person a complaint stating
the charges in that respect, and containing a notice’ of
hearing before the Board or a member thereof, or before
a designated agent or agency, at a place therein fixed, not
less than five days after the serving of said complaint:
Provided, That no complaint shall issue based upon any
unfair labor practice occurring more than six months
prior to the filing of the charge with the Board and the
Service of a copy thereof upon the person against whem
88a
such charge is made, unless the person aggrieved thereby
was prevented from filing such charge by reason of
service in the armed forces, in which event the six-month
period shall be computed from the day of his discharge.
i‘ Any such complaint may be amended by the member,
agent, or agency conducting the hearing or the Board in
its discretion at any time prior to the issuance of an
order based thereon. The person so complained of shall
have the right to file an answer to the original or amended
complaint and to appear in person or otherwise and give
testimony at the place and time fixed in the complaint.
In the discretion of the member, agent, or agency conduct-
ing the hearing or the Board, any other person may be
allowed to intervene in the said proceeding and to present
testimony. Any such proceeding shall, so far as prac-
ticable, be conducted in accordance with the rules of evi-
dence applicable in the district courts of the United States
under the rules of civil procedure for the district courts
of the United States, adopted by the Supreme Court of
the United States pursuant to section 2072 of Title 28.
* * * *
Colorado Rev. Stat. § 13-80-102:
13-80-102. General limitation of actions—two years. (1)
The following civil actions, regardless of the theory upon
which suit is brought, or against whom suit is, brought,
shall be commenced within two years after the cause of
action accrues, and not thereafter:
(a) Tort actions, including but not limited to actions
for negligence, trespass, malicious abuse of process, mali-
cious prosecution, outrageous conduct, interference with
relationships, and tortious breach of contract;
(b) All actions for strict liability, absolute liability,
or failure to instruct or warn;
(c) All actions, regardless of the theory asserted, against
any hospital, health care facility, clinic, physician, nurse,
dentist, chiropractor, veterinarian, practitioner, therapist,
technician, midwife, pharmacist, optometrist, podiatrist,
paraprofessional, or other person involved in any of the
healing arts;
hemenencneieeeenemeemenieeaaniel
39a
(d) All actions for wrongful death;
(e) Repealed, L. 87, p. 567, § 8, effective July 1, 1987.
(f) All actions against any public or governmental en-
tity or any employee of a public or governmental entity
for which insurance coverage is provided pursuant to arti-
cle 14 of title 24, C.R.S.;
(g) All actions upon liability created by a federal stat-
ute where no period of limitation is provided in said
federal statute;
(h) All actions against any public or governmental en-
tity or any employee of a public or governmental entity,
except as otherwise provided in this section or section
13-80-1038;
(i) All other actions of every kind for which no other
period of limitation is provided;
(j) All actions brought under section 42-6-208, C.R.S.
Colorado Rev. Stat., §§ 8-3-106, -108(1) (a), -110(1), -110
(16): Colorado Labor Peace Act
8-3-106. Rights of employees. In accordance with the
provisions of this article, employees have the right of
self-organization and the right to form, join, or assist-
labor organizations, to bargain collectively through rep-
resentatives of their own free choosing, and to engage in
lawful, concerted activities for the purpose of collective
bargaining or other mutual aid or protection. Each em-
ployee also has the right to refrain from any of such
activities. The rights of each employee are essential
rights, and nothing contained in this article shall be so
construed as to infringe upon or have any operation
against or in confiict with such rights.
8-3-108. What are unfair labor practices. (1) It is
an unfair laber practice for an employer, individually or
in concern with others, to:
(a) Interfere with, restrain, or coerce his employees
in the exercise of the rights guaranteed in section 8-3-
106; .
40a
8-3-110. Prevention of unfair labor practices. (1)
Any controversy concerning unfair labor practices may be
submitted to the division in the manner and with the
effect provided in this article; but nothing in this article
shall prevent the pursuit of equitable or legal relief in
courts of competent jurisdiction, nor shall it be any
ground for refusal of such relief that all of the adminis-
trative remedies provided in this article before the divi-
sion have not been exhausted.
* * * *
(16) The right of any person to proceed under this
section and section 8-3-121 shall not extend beyond six
months from the date of the specific act or unfair labor
practice alleged.
Colorado Rev. Stat. § 24-34-402(a), -403: Colorado Em-
ployment Practice Provisions
—
24-34-402. Discriminatory or unfair employment prac-
tices. (1) It shall be a discriminatory or unfair employ-
ment practice:
(a) For an employer to refuse to hire, to discharge, to
promote or demote, or to discriminate in matters of com-
pensation against any person otherwise qualified because
of handicap, race, creed, color, sex, age, national origin,
or ancestry; but, with regard to a handicap, it is not a
discriminatory or an unfair employment practice for an
employer to act as provided in this paragraph (a) if
there is no reasonable accommodation that the employer
can make with regard to the handicap, the handicap actu-
ally disqualifies the person from the job, and the handicap
has a significant impact on the job;
* * * *
24-34-403. Time limits on filing of charges. Any charge
alleging a violation of this part 4 shall be filed with the
commission pursuant to section 24-34-306 within six
months after the alleged discriminatory or unfair employ-
ment practice occurred.
4la
REGULATIONS
Part 2200—AIRLINE EMPLOYEE
PROTECTION PROGRAM
. Subpart A—-Purpose and Scope of the
Airline Employee Protection Program
220.01 Definitions.
220.02 Purposes.
220.03 Scope.
220.04 Responsibilities of the Secretary of Labor. °
Subpart B—Designated Employees’
Eligibility and Rights
220.10 Eligibility requirements.
220.11 Designated employees’ rights.
Subpart C—Carriers’ Responsibilities
220.20 Duty to hire.
220.21 Criteria for employment.
220.22 Listing a vacancy.
220.23 Content of vacancy listing.
220.24 Filling a vacancy.
220.25 List of protected employees.
220.26 Appeals to the Secretary.
> 220.27 Notice of rights. .
220.28 Air Carrier actions to be reported to the Secre-
tary.
220.29 Equal employment opportunity.
i
42a
Subpart D—Designated Employees’ Responsibilities
220.30 Designated employees’ responsibilities.
Subpart E—Department of Labor’s Responsibilities
220.40 Comprehensive job list.
220.41 List of protected employees.
Subpart F—Administration
220.50 Effective period of the program.
220.51 Disclosure of information.
Appendix I—-U.S. Carriers certificated as of October 23,
1978 under Section 401 of the Federal Aviation Act
of 1958, as amended.
_Authority: Section 43(f) of the Airline Deregulation
Act of 1978, Pub. L. No. 95-504, 92 Stat. 1750-1753 (49
U.S.C. 1552).
(Seeretary’s Order No. 1-79, 44 FR 13093)
Subpart A—Purpose and Scope of the
Airline Employee Protection Program
§ 220.01 Definitions.
As used in this Part, unless the content otherwise indi-
cates:
(a) “Act” means the Airline Deregulation Act of 1978,
Public Law 95-594, 92 Stat. 1705.
(b) “Air Carrier’ means an air carrier certificated
under Section 401 of the Federal Aviation Act of 1958
(49 U.S.C. 1371).
(c) “Center” means the entity or location which from
time to time may be designated by the Secretary to re-
ceive, maintain and distribute the job listing information
required by this Part.
" J
43a
(d) “Corporate officer” means an individual who holds
any officer’s position established pursuant to the Articles
of Incorporation or bylaws of any air carrier, or who is
otherwise identified as an officer by any air carrier, in
filings with the Federal Aviation Administration, Civil
Aeronautics Board or Securities and Exchange Commis-
sion or in any reports to stockholders or any pubic com-
munications of an air carrier.
(e) “Covered air carrier” means an air carrier which
was certificated prior to October 24, 1978 (A listing of
such carriers appears as an-appendix to these regula-
tions).
(f) “Designated employee” means a protected em-
ployee who meets the eligibility requirements set forth in
Section 220.10.
(g) “Effective period” means the period commencing
on the effective date of these regulations and ending on
the later of: (1) October 28, 1988, or (2) the last day
of the final month in which the Secretary is required to
make a payment under Section 48 of the Act; except
that nothing in these regulations shall preclude the exer-
cise of statutory rights and duties between October 24,
1978, and the effective date of these regulations.
(h) “Eligibility period” means the ten-year period be-
ginning on October 24, 1978.
(i) “Employment relationship” means an attachment
to a covered air carrier which irludes, brit is not limited
to, compensated service, furlough, leave, or strike.
- (j) “Equal employment opportunity requirement”
means a specific equal employment requirement, pursu-
ant to a federal court or administrative order, consent
decree, or conciliation agreement, requiring that named
individuals or specific members of a class are entitled to
relief by virtue of the carrier’s unlawful employment
discrimination.
44a
(k) “Occupational specialty” means the class, craft,
or field of endeavor in which an individual was em-
ployed at the time of separation from a covered air car-
rier or in which the employee was employed during the
12 months immediately preceding the date of separation.
(i) “Protected employee” means a person other than a
member of the Board of Directors or corporate officer of
a covered air carrier:
(1) Who had an employment relationship with a cov-
ered air carrier on October 24, i978, and
(2) Who on October 24, 1978, had four years of em-
ployment or four years accrued seniority with a single
covered air carrier. The term employee shall include any
full or part-time employee other than an employee in sea-
sonal or temporary employment as defined herein. As
used herein four years of employment shall mean not
less than 48 months (whether or not consecutive) in
which the employee actually completed the minimum
number of hours of regular employment required for
such employee’s craft, class or position under the then
applicable requirements of the employing carrier.
(m) “Seasonal employment” means employment dur-
ing limited periods of the year due to peak market con-
ditions or Other factors which are periodic in nature, and
in positions which do not confer seniority or recall rights.
(n) “Secretary” means the Seeretary of Labor of the
United States,
(o) “Temporary employment” means employment of
limited duration which does not confer seniority or re-
call rights.
(p) “Terminated,” means, unless expressly provided to
the contrary, termination of employment, other than for
cause.
(q) “Terminated for cause” means the separation of
an individual from employment initiated by an air car-
45a
rier for violation of such carrier’s rules, policies, proce-
dures, or practices pertaining to employee standards of
conduct, job performance, or dependability.
(r) “Vacancy” means an employment opportunity
other than seasonal or temporary employment, which an
air carrier seeks to fill from outside its existing or fur-
loughed work force.
§ 220.02 Purpose.
Section 43(d) of the Act provides a first-right-of-hire
for designated employees of covered air carriers. The
regulations in this Part are issued to effectuate, section
43(d)(1) and (2) of the Act (hereinafter referred. to as
the Rehire Program).
§ 220.03 Scope.
(a) The Rehire Program is applicable only to desig-
nated employees, as more fully set forth herein, and only
those employees who are expressly granted a hiring pref-
erence under the Act and these regulations have any
rights under the Rehire Program. The Secretary of
Labor will-also publish a comprehensive list of jobs avail-
able with air carriers.
§ 220.04 Responsibilities of the Secretrry of Labor.
The Secretary of Labor is responsible for administer-
ing the Rehire Program, and the Assistant Secretary for
Labor-Management Relations, Labor-Management Serv-
ices Administration (LMSA), has been delegated respon-
sibility for the following:
(a) The development and promulgation of policies,
regulations and procedures covering the first-right-of-
hire provisions of Section 43(d) (1) of the Act;
(b) The development and promulgation of policies,
regulations, and procedures covering the comprehensive
job list required under Section 43(d) (2) of the Act; and
(ce) The establishment and implementation of report-
ing requirements for air carriers to obtain pertinent in-
46a
formation necessary for fulfilling the Secretary’s respon-
sibilities under Section 43 (d) (2) of the Act.
Subpart B—Designated Employees’
Eligibility and Rights
§ 220.10 Eligibility requirements.
(a) To qualify as a designated employee eligible for
rights under this Part 220, an applicant must be a pro-
tected employee who is involuntarily placed on furlough
or is terminated by a covered air carrier during the
eligibility period.
(b) A protected employee shall not be deemed to be
furloughed or terminated if such employee:
(1) Retired voluntarily ;
(2) Was required to retire by virtue of reaching the
mandatory retirement age, if any, established by a cov-
ered air carrier or as prescribed by any government
agency with regulatory authority over a covered air car-
rier;
(3) Retired due to a disability ;
(4) Is on strike or is withholding services in support
of other Employees who have struck the covered air car-
rier;
(5) Is terminated for cause as defined in § 220.01;
(6) Resigned or voluntarily quit for any reason.
(c) A designated employee who is recalled by his for-
mer carrier is no longer eligible under this section to
exercise the first-right-of-hire. Such a person may be-
come a designated employee in the future due to a sub-
sequent termination or furlough which occurs on or prior
to the expiration of the eligibility period.
§ 220.11 Designated employees’ rights.
(a) A designated employee shall have a first-right-of-
hire in such employee’s occupational specialty, regardless
; $
A
4
47a
of age, with any covered air carrier hiring additional
employees; Provided, however, That each designated em-
ployee must satisfy all qualifications or other require-
ments established by the hiring carrier ( subject to the
limitations contained in Section 220.21) and must make
a timely application in accordance with normal carrier
procedures for any particular job vacancy.
(b) A designated employee hired by any covered air
carrier pursuant to the provisions of the Act shall not be
required, as a condition of employment, or in any other
manner, to relinquish, waive, or forfeit any seniority or
recall rights which such person may possess with any
other air carrier; Provided, however, That the provisions
of this part shall not be deemed to create or prolong any
such seniority or recall rights.
Subpart C—Carriers’ Responsibilities
§ 220.21 Duty to hire.
(a) Subject to § 220.24, a covered air carrier shall
have the duty to hire a designated employee, regardless
of age, who otherwise meets the qualification require-
ments established by such carrier before it hires any
other applicant when such carrier is seeking to fill a
vacancy in the designated employee’s occupational spe-
cialty from outside its work force. As used herein “work
force” shall include all present employees and any fur-
loughed or terminated employees who, at the time of fur-
lough or termination, possessed recall or seniority rights.
(b) Subject to the provisions of § 220.24, a covered air
carrier shall not fill a vacancy, which would otherwise
be available to a designated employee, by promoting or
reassigning a seasonal or temporary employee, unless
such seasonal or temporary employee is a designated
employee.
(c) When considering applications from more than one
designated employee for a particular vacancy, a covered
48a
air carrier shall be entitled to offer employment to any
such designated employee in its absolute discretion.
§ 220.21 Criteria for Employment.
(a) A covered air carrier shall be entitled to apply
any prerequisites or qualifications determined by it for
any vacancy, except that, solely with respect to the duty
to hire created by the Act, a covered air carrier shall not
be entitled to limit employment opportunities for desig-
nated employees on the basis of:
(1) Initial hiring age (provided that such prohibition
shall not be applicable to retirement ages applicable to all
of any class or craft of such air carrier’s employees) ; or
(2) The existence of any seniority, recall rights or pre-
vious experience with any other air carrier; Provided.
however, That covered air carriers shall be entitled to
require prospective employees to disclose the existence of
any such seniority or recall rights in making application
for employment and to take the existence or nonexistence
of such rights into account in selecting from among those
qualified designated employees who have applied for a
particular job vacancy.
(b) In filling job vacancies during the effective period,
covered air carriers shall be entitled to require appli-
cants to furnish evidence that they are designated em-
ployees.
§ 220.22 Listing a vacancy.
(a) During the effective period all air carriers shall
be required to list each vacancy with the Center at the
earliest practicable time, and to include with such list-
ing a statement as to whether the carrier is subject to an
equal employment opportunity requirement, as defined in
these regulations, in filing the vacancy. In addition, any
air carrier shall be entitled to list anticipated vacancies
with the Center at any time.
49a
§ 220.23 Content of vacancy listing.
Air carriers shall provide the Center with a descrip-
tion for each job listing, which shall include, but need not
be limited to, the following—
(a) Job title;
(b) Type of position (full or part-time) ;
(c) Salary;
(d) Basie qualifications and ‘or training requirements:
(e) Brief description of duties:
(f) Loeation of vacancy (if known) :
(g) Special requirements such as type rating, licens-
ing, skill requirements, etc. ;
(h) Whether the vacancy is subject to the duty to hire;
(1) Information on how to apply, such as contact per-
son, mailing address, and any special application proce-
dures; and
(j) Whether the carrier is subject to an equal employ-
ment. opportunity requirement, as defined in these regu-
lations, in filling the vacancy
.
«
$220.24 Filling a vacancy.
(a) A covered air carrier may fill a vacaney with a
designated employee at any time after a vacancy has
been listed with the Center.
(b) A covered air carrier may fill a vacancy with
someone who is not a designated employee after the va-
cancy has been listed with the Center for at least 30
calendar days; if
(1) No designated employee with the requisite occupa-
tional specialty has applied for the vacancy in accordance
with § 220.30 within that time;
.
50a
(2) No designated employee who did apply within that
time period meets the carriers’ criteria for employment
as set forth in § 220.21; or
(3) The vacancy is subject to an equal employment
opportunity requirement and the carrier cannot satisfy
such equal employment opportunity requirement by hir-
ing a designated employee.
(c) A covered air carrier may fill a vacancy on a tem-
porary basis with someaze who is not a designated em-
ployee while the carrier is considering applications for
the vacancy which were received from designated em-
ployees during the listing period.
(d) The date of the listing shall be the date on which
the listing is received by the Center.
§ 220.25 List of protected employees.
(a) Within 60 calendar days of the effective date of
these regulations, each covered air carrier shall provide
the Secretary with a list of all protected employees who
were employed by it on October 24, 1978.
(b) The list shall contain the following information:
(1) Protected employee’s name;
(2) Social Security number (if available) ; and
(3) Current occupational specialty for present employ-
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